ML20005C068
| ML20005C068 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 11/04/1981 |
| From: | Gallo J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8111180350 | |
| Download: ML20005C068 (18) | |
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UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION
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1 BEFORE THE ATOMIC SAFETY AND LICENSING EK76Rb"ce cf ng W
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In the Matter of
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Docket No. 50-155 OLA CONSUMERS POWER COMPAN*l
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(Spent Fuel Pool
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Modification) dBi' l Point Nuclear Power Plant)
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4EPLY IN OPPOSITION TO MOTION TO DEFER
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,s On October 20, 1931, Consumers Power Company
(" Licensee") received a pleading from Intervenors Christa-Maria, Bier, and Mills ("Intervenors") styled " Motion to Defer Intervenors' Response to Motions for Summary Disposi-tion Until After Licensee Answers Outstanding Interroga-tories" (herein af ter referred to as " Motion").
In their Motion, Intervenors request that their response to the motions for summary disposition filed by Licensee and the NRC Staff on October 5, 1981, be deferred ! until twenty days following the receipt by Intervenors of the replies to
-1/
Intervenors' alternative request for a time extension until November 20 was granted, with the support of the Licensee and NRC Staff, by Order of the Licensing Board on October 26, 1981.
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% the interrogatories served on August 9, 1981.1/
For the reasons set forth below, the Motion should be denied.
Intervenors attempt to justify deferral of their reply to the motions for summary disposition on Christa-Maria Contention 8, Licensing Board Question No.
1, and O'Neill Contentions IIC, IID, IIE-3, and IIP on the ground that first they need answers to certain identified inter-rogatories.
Intervenors attempt to defer their summary disposition response on the remaining contentions in the hope that " answers to the interrogatories served August 9 may reveal information relevant" to such contentions.
Neither argument justifies deferral, and the iast proposi-tion will be disposed of first.
Intervenors have not identified, from the almost 240 interrogatories which are pending before the Licensing Board for resolution, a single one that relates to Christa-Maria Contentions 2 and 3, Licensing Board Question 2, and O'Neill Contentions IB-5, IIA, IIB, IIG(b), and IIIE-2.1/
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These interrogatories were objected to in toto by the Licensee on 8/31/Pl.
Intervenors noved the Licensing Board to compel the Licensee to respond to the approxi-mately 240 interrogatories on September 18, 1981; the issues have been joined as of that date, and they are ripe for decision.
3/
See discussion infra, pp.
6-7, for a discussion con-cerning Intervenors' right to respond to contentions proferred by Mr. O'Neill.
L
. Zet Intervenors wish to defer their response to summary diaposition motions on these contentions on the speculation that, to the extent order.<1 by the Licensing Board, answers to these interrogatories "may" reveal relevant informa-tion.d!
No counter-argument is required to expose the inadequacy of this proferred reason for deferral.
As the Licensing Board knows full well, this proceeding has been the victim of substantial delays.
Further delays premised on the whimsical hope expressed in Mr. Semmel's affidavit cannot be sanctioned.
Intervenors' motion to defer with respect to foregoing contentions should be rejected, and responses, if any, to the summary disposition motions on these contentions should be required by November 20, 1981.
We turn not to that aspect of Intervenors' motion where the ground for deferral is predicated on a need first to obtain answers to certain identified interrogatories alleged to be related to various contentions.
Licensee cannot agree that the outstanding controversy on Intervenors' interrogatories (Set III) should serve as a basis for daferral of their response to the summary disposition motions.
If Intervenors really believe they require this information, they can present this argument in their response in opposition 4/
Affidavit of Herbert Semmel, p.
4.
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to the summary disposition motions.
In any event, none of the pending interrogatories, as discussed below, is suf-ficiently related to the referenced contentions to warrant the relief requested by Intervenors.
Intervenors wish to defer their response to the summary disposition motions on Christa-Maria contention 8 until answers are provided to Interrogatories 6 and 9.
Contention 8 was consolidated with O'Neill Contention IIIE-2 and rewritten by the Licensing Board as follows:
The occurrence of an accident.
similar to TMI-2 which would pre-vent ingress to the containment building for an extended period of time would render it impoc-sible to maintain the expanded spent fuel pool in a safe con-dition and would result in a significantly greater risk to the public health and safety than would be the case if the increased storage were not allowed.
Contention 8 concerns the Licensee's ability to maintain the spent fuel in a " safe condition" should an accident occur, such as the one at TMI, where entry inside containment could not be accomplished for some extended period of time.
The problem suggested by this contention is, of course, one of maintaining cooling water level over the spent fuel and of providing any necessary make-up water to the pool.
k
. The relationship of Interrogatory 6 to Contention 8 is not apparent.
Contention 8, as rewritten by the Licensing Board, specifically refers to an accident similar to the TMI-2 accident which would prevent ingress to contain-ment for an extended period of time.
On the other hand, Interrogatory 6 vaguely and aimlessly addresses itself to nonmechanistic accident descriptions called " breach," " core melt," " explosion or inadequate cooling of core fuel."
No mention is made of the accident scenario articulated in Contention 8.
Intervenors offer no explanation why they failed, if they so intended, to track Contention 8 when they framed Interrogatory 6.
In Licensee's judgment, none can be made.
Their subsequent attempt to provide such linkage is simply opportunistic legerdemain.
The attempted linkage between Contention 8 and Interrogatory 6 should not be permitted.
The relationship between Contention 8 and Inter-rogatory 9 is equally absurd.
The first sentence of Interroga-tory 9 addresses radioactivity levels during normal operation of the spent fuel operation -- completely unrelated to the accident conditions postulated in Contention 8.
The second sentence of Interrogatory 9 requests information on radio-activity levels from the spent fuel pool in the event of an "SSE" and " meltdown."
Again, neither of these nonmechanistic a
. _ _ _ _., _,.. ~ _ _ _. _
. accident descriptions is relevant to the accident scenario of Contention 8 and the resultant long-term inability to enter containment for purposes of providing make-up water to the spent fuel pool.
Neither interrogatory 6 nor 9 can bc reasonably interpreted as seeking to elicit information reasonably cal-culated to lead to the discovery of admissible evidence on Christa-Maria Contention 8.
Intervenors desire to defer their response to the summary disposition motions on O'Neill Contentions IIC, IID, IIE-3, and IIF on the ground that they need answers to various 'nterrogatories served on Licensee on August 8, 1981.
Licensee will demonstrate below that the bases for deferral is not valid in the same manner as discussed above l
with respect to Christa-Maria Contention 8.
First, however, it is necessary to stress that Intervenors are on a different i
l footing with respect to any deferral of their response to i
j summary disposition motions on Mr. O'Neill's contentions.
1 Inte rvenors, if they have any interest at all, have merely a secondary interest in the contentions of Mr.
Neill, a party who has steadfastly objected to consolidation with Intervenors in this proceeding.
Mr. O'Neill has not asked for deferral of his response, and apparently he intends to file whatever response he deems appropriate on November 20.
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. In this circumstance, Intervenors' Motion is at best pre-sumptuous.
Although Intervenors have a right to reply to summary ' disposition ' motions on the O'Neill contentions, they
- have no right tofinterfere with the orderly process of litigating Mr. O'Neill's issues.
Thus, for this reason alone, Intervenors' motion to defer their response to sum-
~
mary disposition motions on O'Neill Contentions IIC, IID, I IE-3, and IIF should be denied.
Should the Licensing Board disagree, the following discussion demonstrates that, in any event, none of the " outstanding interrogatories" warrant deferral of these contentions.
l Intervenors wish to defer their response to i
summary disposition motions on O'Neill Contention IIC until answers are provided to Interrcgatories 5, 6,
7, 8, and 12.
Contention IIC states:
The licensee's plan is deficient r
in failing to discuss the environ-mental hazards associated with small to medium leaks of radio-active water from the expanded spent fuel pool.
l No relationship exists between Contention IIC and Interroga-l tories 5, 6, 7,
8, and 12.
Contention IIC raises a question as to the environmental and health and safety impact-of a discharge of water to the environment The contention, based on Mr. O'Neill's interpretation of Licensee's Appli-i j
cation assumes that water will be discharged to the environment l
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. at the rate of 200 gallons per minute.
Mr. O'Neill asserts that Licensee has failed to develop an adequate plan to deal with such a water discharge from the standpoint of environmental and health and safety concerns.
Implicit in Contention IIC is the unuerlying premise that an adequate plan must be developed because no guarantee can be mai, at least in the view of Mr. O'Neill, that such a water discharge will notioccur.
Thus, a discussion of various accidents or other events that might cause such a water discharge is immaterial to Contention IIC.
Mr. O'Neill, right or wrong, is simply interested in an adequate plan to deal with a water discharge which has been created by his interpretation of the Application.
It can be readily concluded, based on the fore-going discussion, that interrogatories seeking information concerning (i) the ability to cool the spent fuel under certain accident and other conditions (Interrogatories 6 and 8), and (ii) the structural integrity of the spent fuel pool i
j and related systems (Interrogatories E, 7,
and 12), bear no relationship to a contention that is questioning the adequacy of a " plan" to deal with the discharge of water to the environment.
Interrogatory 5 does seek information concern-ing the discharge of water, but predicated on a breach of
. the spent-fuel pool due to the occurrence of the safe shutdown earthquake.
Again, Contention IIC is directed at a surmised discharge of 200 gpm of water, not the effects, - if any, of the SSE.
Moreover, the testimony submitted by Li casee (Af fidavit of Thomas C.
Bordine) in support of its motion for summary disposition of Contention IIC explains the manner in which Mr. O'Neill has misinterpreted the reference in the Application to "200 gpm."
If Intervenors wish to support Mr. O'Neill's Contention IIC at this ad-vanced stage of the proceeding, the appropriate way to address this issue is by submitting an affidavit from one or more of their " twenty experts"EI responding to the motions for summary disposition and setting forth facts specifically addressing any perceived discrepancy in Mr. Bordine's testi-many.
Intervenors' ability to follow such a course of action will not be inhibited by the lack of the immaterial information Jought by Interrogatories 5, 6,
7, 8, and 12.
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In response to the Licensee's September 17, 1981, motion to compel Intervenors to identify their list of witnesses, Intervenors indicated that such information was unavail-able and would not be available by November 1, 1981.
Yet according to the Affidavit of Mr. Semmel, which was at-tached to the Motion, " packets" were sent out to twenty experts on October 19.
It would seem, therefore, that Mr.
Semnel is able to supply the names of witnesses, and the Licensing Board should issue an order accordingly.
. Interrogatories 5-8 and 12 cannot be reasonably interpreted as seeking to elicit information reasonably calculated to lead to the discovery of admissible evidence on O'Neill Contention IIC.
Intervenors wish to defer their response to the summary disposition motions on O'Neill Contentiort IID until an dnswer is provided to Interrogatory 6.
Contention IID states:
The licensee has not adequately provided for the protection of the public against the increased release of radioactivity from the expanded fuel pool as a re-sult of the. breach of the contain-ment due to the. crash of a B-52 bomber.
This contention raises a question concerning the consequences of a breach of the containment due to the crash of a B-52 bomber.
Specifically, in the event of such an accident, Mr.
O'Neill is concerned about _. e added risk to the public health and safety that might accrue if the expansion of the Big Rock Point spent fuel pool were permitted.
l As discussed supra in connection with Christa-Maria Contention 8, Intervenors again have linked Interrogatory 6 to another contention, i.e.,
IID, as an afterthought.
l Again, a comparison of the two belies any notion that the l
interrogatory is seeking information related to the contention.
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. Nowhere in Interrogatory 6 is there any mention of a B-52 bomber accident causing a breach of containment.
It is fair to conclude that if Intervenors truly intended Interrogatory 6 to elicit information concerning Contention IID, the B-52 accident scenario would have been articulated, rather than the vague and unfathomable references to " breach, or other credible accident such as a core melt, explosion, or inade-quate cooling of core fuel."
Interrogatory 6 cannot be reasonably interpreted as seeking to elicit information reasonably calculated to lead to the discovery of admissible evidence on O'Neill Contention IID.
Intervenors wish to defer their response to the summary disposition motions on O'Neill Contention IIE-3 until an answer is provided to Interrogatory 34.
Contention IIE-3 states:
The application has not ade-quately analyzed the possibility l
of criticality occurring in the fuel prol because of the increased density of storage without a gross distortion of the racks.
l l
This contention challenges the adecuacy of the Licensee's l
l criticality analysis of the expanded spent fuel pool.
Mr.
[
O'Neill's challenge is asserted under circunstances where no I
l "grcss distortion" of the spent fuel racks is assumed.
The lack of a relationship between this contention and Interrogatory 34 is apparent.
The interrogatory seeks i
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- information ccncerning the ability of the containment and tne control room to withstand the effects of tornadoes and tornado missiles.
No mention is made of the spent fuel pool.
Interrogatory 34 cannot be reasonably interpreted as seeking to elicit information reasonably calculated to lead to the discovery of admissible evidence on O'Neill Conten-tion IIE-3.
Intervenors wish to defer their response to the summary disposition motions on O'Neill Contention IIF until answers are provided to Interrogatories 12 and 22.
Contention IIF states:
Because of the expansion of the spent fuel pool, routine releases, and accidental re-leases similar to those that have already occurred, of eff.uents will no longer meet the guidelines of Appen-dix I, Sections II and IV of 10 C.F.R.'Part 50 because, in violation of Appendix I, Sec-tion IIIA.1, the required calculations do not estimate bioaccumulation factors in a manner appropriate to this site.
I
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This contention challenges the adequacy of Licensee's Appendix I evaluation with respect to the appropriate valdes assigned to bicaccumulation factors.
Apparently, Mr.
O'Neill believes that Licensee in this specific respect is i
not complying with applicable NRC regulations for maintaining
. radiation releases to the public as low as reasonably achievable.
Interrogatory 12, which seeks information concern-ing alleged blasting operations and their effect, if any, on the spent fuel pool structure and systems, is obviously not related to Contention IIF.
Interrogatory 22, in the main, seeks information concerning monitoring and sampling methods and procedures, a subject not related to Contention IIF.
Subpart (b ) of Interrogatory 22 does request information on the arount of radioactive isotopes in the effluent discharged from Big Rock Point.
However, as stressed in Licensee's objections to Interrogatory 22, Subpart (b) has already been answered by Licensee, a matter not disputed by Intervenors in their subsequent motion to compel filed on September 18, 1981.5/
Thus, Interrogatories 12 and 22 cannot be reasonably interpreted as seeking to elicit information reasonably calculated to lead to the discovery of admissible evidence on O 'Neill Contention IIF.
l Intervenors wish to defer their response to the l
summary disposition motions on Board Question No. 1 until i
6/
Information on gaseous effluents was provided on February l
22, 1980, in response to Interrogatory 7-3 (Set I), and on liquid effluents on September 10, 1980, in response j
to Interrcgatories 3-5(a), 3-5(b), and 3-5(i) (Set I).
l l
. answers are provided to Interrogatories 3, 6,
8, 19, 20, 28, and 44.
Board Question No. 1 states:
Has - the proper operation of any of the valves mentioned in items 5 and 6 on page 4 of the Safety Assessment (viz., valves CV/4096, CV/4097, CV/4027, CV/4105, and MO/7050) been relied upon to mitigate the results of an acci-dent in the spent fuel pool?
If so, how would a failure of the type experienced with tnese valves affect the results of such an accident?
This Question concerns the reliability of certain valves to isolate the Big Rock Point containment effectively, and the effects, if any, of a valve failure with the occurrence of an accident in the spent fuel pool.
Interrogatory 3 concerns the seismic stability of spent fuel-pool structures and systems.
Valves are mentioned in the interrogatory, but the reference is to " pool valves,"
i not to the containment isolation valves identified in Board Question No.
1.
Interrogatories 6 and 8 address the question of capability to cool the spent fuel under certain accident and other conditions.
Interrogatory 28 seeks information concerning " unplanned drainage" from the spent fuel pool.
Again, no connection is apparent with respect ta these interrogatories and a Board Question concerning the re-liability of containment isolation valves.
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. On September 18, 1081, Intervcnors withdrew Interrogatory 19.1 Interv nors now insist they need an answer to the interrogatory.
One cah only ponder and speculate what Intervenors ' true interest is with respect to Interrogatory 19.
In any event, the withdrawal of the interrogatory was unequivocal.
On the other hand, the reference in the Motion to Interrogatory 19 cannot be fairly interpreted as a request for reinstatement.
Thus, Licensee concludes that the interrogatory has been withdrawn.
Interrogatory 44 seeks information about the reliability of offsite power supplies to the "feedwater train" at Big Rock Point.
Subpart (f) mentions isolation of the containment, but the reference is not calculated to elicit information about the capability of achieving con-tainment isolation.
Interrogatory 20 seeks information on the " type and number of all malfunctions, accidents, abnormal occurrences, events, and oversights" that have occurred at l
Big Rock Point involving four specific systems.
Only item
"(4) isolation components" can be said to relate to Board Question No. 1, and the matter of malfunctions, etc., is identified in the testimony (Affidavit of Thomas C. Bordine) which was submitted in support of Licensee's motion for l
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Motion to Compel, p.
2
. summary disposition of Board Question No. 1.
Thus, at this advanced stage of the proceeding, the appropriate way for Intervenors to address the reliability of the containment isolation valves specified in the Board Question is by submitting an affidavit from one of their " twenty experts" respoading to Licensee's motion for summary disposition and setting forth facts specifically addressing the question of j
the reliability of the referenced valves.
Interrogatories 3, 6,
8, 19, 20, 28, and 44 cannot be reasonably interpreted as seeking to elicit information reasonably calculated to lead to the discovery of admissible evidence on Board Question No. 3.
In view of the foregoing, Intervenors' Motion to defer its response to the summary disposition motions of the Licensee and the U C Staff should be denied, and 7atervenors' response should be required by November 20, 1981.
Respectfully submitted, 36sepyGallo One of the Attorneys for Consumers Power Company
.ISHAM, LINCOLN & BEALE i
Suite 325 1120 Connecticut Avenue, N.W.
Washington, D.
C.
20036 (202) 833-9730 Dated:
November 4, 1981
A UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-155-OLA CONSUMERS POWER COMPANY
)
(Spent Fuel Pool
)
Modification)
(Big Rock Point Nuclear Power Plant))
CERTIFICATE OF SERVICE I hereby certify that copies of CONSUMZRS POWER COMPANY'S REPLY IN OPPOSITION TO MOTION TO DEFER in the above-captioned proceeding were served on the following by deposit in the United States mail, first-class postage prepaid, this 4th day of November, 1981.
Herbert Grossman, Esquire Atomic Safety and Licensing Administrative Judge Board Panel Atomic Safety and Licensing U.
S.
Nuclear Regulatory Board Panel Commission U.
S.
Nuclear Regulatory Washington, D.
C.
20555 Commission Washington, D.
C.
20555 Atomic Safety and Licensing Appeal Bourd Panel Dr. Oscar H.
Paris U.
S.
Nuclear Regulatory Administrative Judge Commission Atomic Safety and Licensing Washington, D.
C.
20555 Board Panel U.
S.
Nuclear Regulatory Docketing and Service Section Commission Office of the Secretary Washington, D. C.
20555 U.
S.
Nuclear Regulatory Commission Mr. Frederick J. 3 hon Washington, D.
C.
20555 Administrative Judge Atomic Safety and Licensing Board Panel U.
S.
Nuclear Regulatory Commission Washington, D. C.
20555 t
Janice E. Moore, Esquire Judd Bacon, Esquire Counsel for NRC Staff Consumers Power Company U.
S. Nuclear Regulatory 212 West Michigan Avenue Commission Jackson, Michigan 49201 Washington, D.C.
20555 Ms. Christa-Maria Herbert Semmel, Esquire Route 2, Box 108C Urban Law Institute Charlevoix, Michigan 49720 Antioch School of Law 2633 16th Street, N.W.
Ms. JoAnne Bier Washington, D.C.
20009 204 Clinton Charlevoix, Michigan 4972D Mr. John O'Neill, II Route 2, Box 44 Mr. James Mills Maple City. Michigan 49664 Route 2, Box 106 Charlevoix, Michigan 49720 b
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