ML20005C115
| ML20005C115 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 11/16/1981 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8111180409 | |
| Download: ML20005C115 (12) | |
Text
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r i-11/16/81 UNITED STATES OF AMERICA NOCLEAR REGULATORY COMtt!SSION q\\?mUJ ),,
O BEFORE THE ATOMIC SAFETY AND LICENSING BOAR 9 r:
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MAINE YANKEE ATOMIC POWER COMPANY Docket No. 5 309
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(Spent Fuel
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(!!aine Yankee Atomic Power Station))
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NRC STAFF RESPONSE TO STATE OF MAINE REQUEST FOR NOTICE AND ORDER SCHEDULING PREHEARING CONFERENCE I.
INTRODUCTION On October 26, 1981 the State of Maine by its Attorney General filed e pleading entitled " State of Maine Request for Notice and Order Scheduling Prehearing Conference." In this pleading the State of Maine requests this Board to issue a Notice and OrderM scheduling a prehearing conference establishing (1) a date by which petitioners may submit con-tentions based on the information provided by the Applicants under cover letters dated July 28 and October 5,1981 with respect to the 10.25 inch center to center fuel rack aspect of the Maine Yankee,sroposed fuel storage modification and (2) a date on which the Board will conduct a prehearing conference in Wiscasset, Maine t., consider all petitions filed for leave to intervene and to permit identification of the issues in this proceeding.
For the reasons set forth below the Staff opposes the State's request.
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The State requests that it be similar to the one issued by this Board on June 22, 1981 (at 9).
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I II. DISCUSSION The State supports its request for an order from the Board es-i tablishing a date for filing'of new contentions on purported new information in a letter of October 5,1981 from the Applicant to the NRC Staff. This letter purportedly contains "significant information not contained in earlier submissions" including an " entirely new" criticality and thermal hydraulics analysis for the 10.25 inch center-to-center spacing proposal, which would allow for the filing of new contentions and-still another prehearing conference.
The Nuclear Regulatory Commission has specifically noted in the Statement of Considerations to Part 2 that 10 C.F.R. 9 2.714 was amended i
in April 1978 to clarify the ree' 'rements with regard to situations where f
i petitioners seek to add contentions based on new information. 43 Fed.
Reg. 17798 (April 26, 1978).2/
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2.714(a)(1)provides:
Any person whose interest may be affected by a proceeding and who desires to participate as a i
party shall file a written petition for leave to intervene.
In a proceeding noticed pursuant to 9 2.105, any person whose interest nay be affected j
nay also request a hearing. The petition and/or i
request shall be filed not later than the time specified in the notice of hearing, or as provided by the Commission, the presiding officer or the atomic scfety and licensing board designated to rule on the petitior and/or request, or as provided l
in 9 2.102(d)(3). Nontimely filings will not be entertained absent a determination by the FOOTNOTE CONTINUED ON NEXT PAGE l
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3-The Conmission stated:
The Coanission believes that % 2.714 should be anended in the interest of clarifying the require-nents in regard to both late filings of petitions and amending, expanding, and deleting contentions.
First, 9 2.714 is amended to outline clearly the factors which need to be considered and balanced before the presiding officer passes upon the ad-4 missibility of late filings.
In essence, the acendaent codifies the Commission's decision In the Matter of Nuclear Fuel Services, Inc., and New York State Atomic and Space Development Authority (1 NRC 273), which makes clear that the reason for the untimely filing is one factor to be balanced along with others in determining whether a late filing will be admitted. Second, 6 2.714 is revised to specifically provide that late filed contentions (a contention or amended contention which is filed after 15 days prior to the special prehearing conference, or where there is no special prehearing conference, which is filed after 15 days prior to the first prehearing conference) will be considered for admission under the clarified criteria set forth in subparagraph (a)(1). Third, revised 5 2.714 is ir ended to make clear that late filed contentions must meet the same requirements as timely filed contentions. That is, a proposed contention must be set forth with particularity and with the appropriate factual basis.
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FOOTNOTE CONTINUED FROM PRECEDING PAGE Comaission, the presiding officer or the atomic safety and IIcensing board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set out in paragraph (d) of this section:
(1) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's par-ticipation ray reasonably be expected to assist in developing 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 participation will broaden the issues or delay the proceeding.
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The clarified criteria referenced by the Commission require the Boards to balance the factors c' 10 C.F.R. 9 2.714(d) and the five factors set forth in 10 C.F.R. ; 2.714(a)(1) in their determination of whether each late filed contention should be admitted.
See Cincinnati Gas and Electric Co., et al. (William H. Zimmer Nuclear Station),
LBP-79-22, 10 NRC 213, 214 and 215 (1979). Accordingly, if the State should choose to file' any contentions at this stage of this proceeding (followir.g the special prehearing conference) it must do so in accordance with the requirements of 10 C.F.R. 9 2.714(a)(1) and address the five factors set forth therein as well as on the factors of 10 C.F.R. 9 2.714(d).5/
3j See Metropolitan Edison Company (Three Mile island Nuclear Station, Unit 2), ALAS-384, 5 NRC 612, 615 (1977) where the Appeal Board stated:
10 C.F.R. 2.714(a) expressly provides that non-timely intervention petitions "will not be entertained" absent a determination by the Licensing Board "that the petitioner has made a substantial showing of good cause for failure to file on time." As construed by the Commission in its West Valley decision two years ago, the " good cause" ceterairiation is to be made on the basis of consideration of both the substantiality of the justification offered for the late filing and the four factors specifically enumerated in Section 2.714(a).
(footnotes deleted)
i The State of Maine has not addressed the factors set out in 10 C.F.R. f 2.714 or proposed any new contentica, and thus-its motion must be denied.
It instead says it should be allowed to amend its contentions in some undefined manner without a showing of good cause and without the balancing of factors called for by 5 2.714. See Motion,
- p. 5.
This request amounts to an attack on the Commission's regulations and is prohibited by 10 C.F.R. s 2.758.
Consideration af such matters is not appropriate for a licensing board.O Further, any argument that the State was not capable of filing specific contentions consistent with the requirements of 10 C.F.R.
s 2.714 prior to receipt of the purported "new information" in the Applicant's October 5,1981 letter is proved invalid by the contentions already filed in this proceeding. At pages 2-3 of its motion the State lists the alleged "new and different information" in Applicant's letter upon which it infers it could not have previously submitted contentions.
flot only could the matters listed have been the subject of proposed contentions, but they are, in fact, the subjects of proposed contentions.
The first item involves "a new thermal hydraulics analysis for the new 10.25 inch spacing proposal." This matter is the subject of Maine's 4)
Metropolitan Edison Company (Three Mile Island fluclear Station, Unit tio. 2), ALAB-456, 7 f4RC 63, 67 n. 3 (1978); Potomac Electric Power Co. (Douglas Point fluclear Generating Station, Units 1 and 2),
ALAB-218, 8 AEC 79, 89 (1974). The State has even failed to state in accordance with 10 C.F.R. 9 2.758 any "special circumstances" for waiver or exception to the requirements of 10 C.F.R. 9 2.714 for late filed contentions. The State only asserts that application of the rule here would be unfair since the Applicant has amended its application after the filing of the State's contentions (at 2 and 5).
There is no prohibition to amendments to an application after the start of a proceeding and it is common in fiRC proceedings. See Public Service Co. of flew Hampshire (Seabrook Station, Units 1 and 2), LBP-74-30, 7 AEC 877, 879 (1974).
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proposed contention 9 on coolant flows. The Staff and Applicant have
. stated this issue is suitable for litigation. See also Sensible Maine Power proposed contention 8.
Further, to the extent there are questions on decay times this too could have been raised, and was raised, before receipt of the letter of October 5,1981.
See e.g. Maine proposed contention 7 on the K effective values; Maine proposed contention 13 on the safety of stored fuel; Sensible Maine Power proposed contention 16 on criticality; and Sensible Maine Power proposed contention 10 on heat and radioactivity.
The second item involves a purportedly " entirely new criticality analysis for the 10.25 inch spacing proposal." The State had knowledge of the 10.25 inch spacing at least since July, far before it submitted its final contentions in October.
See Motion p. 3.
Here, again contentions were actually subnitted in regard to this matter prior to receipt of the October 5, 1981, letter. See Maine proposed contention 7 on the K effective value, and Sensible Maine Power proposed contention 16 on criticality.
The third and last item involves " pin storage." Again the matter of pin compaction and storage was known long before the October 5, 1981, letter.
Issues concerning the respacing of pins were the subject of l
proposed contentions prior to knowledge of that letter. See Maine proposed contentions 2, 7 and 11 on pin compaction; Sensible Maine Power contentions 3, 16 and 17 on pin compaction.
I Ali matters involving purportedly "new information" in the letter of i
October 5,1981, were already the subject of proposed contentions.
No new application was submitted. The fact that further information on the i
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1 7-application was submitted on October 5,1981, does not show any unfairness to the Intervenors in the filing of contentions.N-The Nuclear Regulatory Connission has twice published in the Federal Register notice of the proposed issuance of an amendment to the Maine Tankee operating license to increase the facility's spent fuel storage capacity, first on October 24, 1979 (44 Fed. Reg. 61273) and again on January 6,1981 (Fed. Rm. 9315).
The January 6,1981 notice gave notice that as a result of the use of the new racks, the Licensee requested modification of the !!aine Yankee Technical Specifications to increase the K effective from equal to or less than 0.90 to equal to or less than 0.95.
Accordingly, notice was given of the Applicant's complete proposal, including the use of new racks and the reduction of f
the spen; fuel assemblies' center-to-center spacing as well as the request to change the Technical Specifications to increase the K effective. The Staff does not believe that the Applicant's further proposed reduction from 10.50 to 10.25 inch spacing which the Intervenors knew of since July requires publication of still another notice of 5f In Northern States Power Company (Prairie island Nuclear Generating t
l Plant, Units 1 and 2), ALAB-107, 6 AEC 188,191 and 192, the Appeal j
Board, upholding the requirements of 10 C.F.R. s 2.714 that calls for early identification of contentions, rejected petitioner's argu-ment that it is not possible to state specific cont- +. ions until after they have been peraf tted to inter *.ene and av themselves of discovery. The U.S. Court of Appeals District of Columbia Circuit upheld this requirement of 10'C.F.R. s 2.714. BPI v. AEC, 502 F.2d j
424, 428 and 429 (1974).
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8-opportunity of hearing or allows for the filir.g of new contentions.5/
No reasan exists for the publication of still another notice of opportunity for hearing, or to grant yet another opportunity to submit contentions.
Finally, the State asserts as basis for requesting a'prehearing conference the Appeal Board's decision in Houston Lighting and Power (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521 (1979). However, that decision does not support the State's request.
The Appeal Board merely indicated that Intervenors must be given a right to respond to the objections filed to contentions. The Appeal Board did not require that a prehearing conference be held to hear such response.
It stated (at 525):
Before any suggestion that a contention should not be entertained can be acted upon favorably, the proponent of the contention must be given some chance to Se heard in response (emphasis added)..
Accord lngly, the Staff believes that an opportunity to respond in writing is adequate. As the Appeal Board noted in that prcc^eding, Licensing Boards had permitted only written responser to object.icos to contentions after the one required prehearing conference on t.3ntentions had been held (at 523, n. 10).
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The State has not alleged and the Staff cannot find any prejudice to the State resulting from the proposal to decrease the center-to-center spacing of the fuel assemblies another 0.25 inches.
See generally Davis " Administrative Law Treatise" 9 8.05.
The State admitted knowing of the proposal as early as July 28,1981 well before October 5,1981, the due date for filing its amended contentions (at 3).
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III.
CONCLUSION For the foregoing reasons the NRC Staff opposes the requests of the State of Maine to renotice the proceeding, to set another prehearing conference, or to allow the filing of additional contentions.
Respectfully submitted,
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Edwin J. Reis Assistant Ch'ef Hearina Cc':nsel Dated at Bethesda, Maryland this 16diday of November,1981.
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l-UNITED STATES OF NIERICA NUCLEAR REGULATORY COMillSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In tne flatter of
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MAINE YANKEE ATOMIC POWER COMPANY )
Docket No. 50-309
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(Spent Fuel)-
(Maine Yankee Atomic Power Station))
l NOTICE OF APPEARANCE-Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 9 2.713, 10 C.F.R. Part 2, the following information is provided:
Hame
- Edwin J. Reis Address
- Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Telephone Number
- Area Code 301-492-7505 i
Admissions
- Court of Appeals for the State of New York District Court for the District of Columbia Name of Party
- NRC Staff U.S. Nuclear Regulatory Commission Washington, DC 20555 t'
Edwin J. Reis Assistant Chi Hearing Counsel Dated at Bethesda, Maryland this 16th day of November,1981.
UNITED STATES OF AMERICA HUCLEAR REGULATORY C0!4tlSSION BEFORE THE ATOMIC SAFETY AfiD LICENSING BOARD In the Matter of
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MAINE YANKEE ATOMIC POWER C0!!PANY Docket No. 50-309
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(Spent Fuel)
(Maine Yankee Atomic Power Station))
CERTIFICATE OF SERVICE I hereby certify that cooies of "NRC STAFF RFSPONSE TO STA7E OF MAINE REOCEST FOR NOTICE AND ORDER SCHFDULING PREHEARING CONFERENCE" and " NOTICE OF APPEARANCE" of Edwin J. Reis in the above-captioned proceeding have been served on the following by deposit in the United States nail, first class, or, as indicated by an asterisk, through deoosit in the Nuclear Regulatory Commission's internal mail system, this 16th day of November,1981:
Robert M. Lazo, Esq., Chairman
- Administrative Judge Rufus E. Brown Atomic Safety and Licensing Board Deputy Attorney General U.S. Nuclear Regulatory Comission Department of the Attorney General i
Washington, DC 20555 State House Augusta, ME 04333 Dr. Cadet H. Hand, Jr.
Administrative Judge and Director, Bodega Marine Laboratory David Santee Hiller University of California Counsel for Petitioner P.O. Box 247 213 Morgan Street, N.W.
Bodega Bay, CA 94923 Washington, DC 20001 i
Peter A. Morris
- Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel
- U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 i
Thomas Dignan, Esq.
Atomic Safety and Licensing l
Ropes & Gray Appeal Board
- 225 Franklin Street U.S. Nuclear Regulatory Comission i
Boston, MA 02110 Washi19 ton, DC 20555 Stanley Tupper Dockt: ting and Service Section*
Tupper & Bradley Office of the Secretary l
102 Townsend Avenue U.S. Nuclear Regulatory Comission i
Boothbay Harbor, ME 04538 Washington, DC 20555 1
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David Colten-flanheira Box e336 8edford's Barn Gouldsboro,ilaine 04607 f
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Edwi n J. Rp'i s
'Assistan/ Chief Hearinu Counsel
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