ML20031A331
| ML20031A331 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 09/15/1981 |
| From: | Gallo J, Steptoe P, Thornton P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20031A332 | List: |
| References | |
| ISSUANCES-OLA, NUDOCS 8109230159 | |
| Download: ML20031A331 (37) | |
Text
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9/15/81 e
o UNITED STATES OF AMERICA 9
NUCLEAR REGULATORY COMMISSION DOCRDED
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2 SEP 17,1981 r
I BEFORE THE ATOMIC SAFETY AND LICENSING BOA
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In the Matter of
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) Docket No. 50-155-OLA CONSUMERS POWER COMPANY
) (Spent Fuel Pool
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ExpansionM"
j (Big Rock Point Nuclear Power Plant)
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/Sgf LICENSEE'S MOTION TO DISMISS ADDITIONAL ET3AL.
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CONTENTIONS OF INTERVENORS CHRISTA-MARIA, W 7 ANSWER TO INTERVENORS ' MOTION FOR LEA XJ TO FILE ADDITIONAL CONTENTIONS, AND
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/d RESPONSE TO INTERVENORS' ADDITIONAL CONTENTION 5l P
f Consumers Power Company
(" Licensee") hereby moves the Atomic Safety and Licensing Board ("the Board") to dismiss all the additional contentions, with the exception oC Contention 9-1 thereof, filed by Intervenors Christa-Mt.ria, et al. ("Intervenors") on September 4, 1981, on the ground that these c'ontentions are unticely.
For the same reason, the Board must deny Intervenors' alternative Motion for Leave to File Additional Contentions.
l l
I.
Intervenors' Additional Contentions Must Be Dismi g ed Intervenors' only warrant fer fili.ng additional 95 I
.5 contentions at this time is the Board's Order Following
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I U).
Special Prehearing Conference, LBP-80-4, 11 N.R.C.
117, 134 1
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8109230159 810915 PDR ADOCK 05000155 g
2-(January 17, 1980), as modified by Order of June 16, 1981.
Prior to the special prehearing conference in December 1979, the Staff, Licensee, e.nd Intervenors reached an agreement on a procedural schedule consisting of eleven steps.
The first ten of these steps were agreed to by the Licensing Board and incorporated in its Order Following Special Prehearing Conference.
The fif th of the steps agreed to by the parties ar.d ordered by the Board was as follows:
" Filing any new contentions based on new information contained in SER and EIA within 47 days of SER and EIA issuance."
11 NRC at 134.
l l
Thus, the schedule agreed to by the parties and ordered by the Board provides Intervenors with a narrowly limited opportunity te put in issue contentions based on new l
information in the cafety evaluation ("SER")1 and environ-mental appraisal ("EIA")1/ filed by the Staff on May 15, 1981.
Intervenors have now filed 31 new contentions.
Intervenors have made no attempt to limit these issues by l
1/
Safety Evaluation by the Office of Nuclear Reactor Regu-lation Relating to the Modification of the Spent Fuel Storage Pool, dated May 15, 1981.
2/
Environmental Impact Appraisal by the Office of Nuclear Reactor Regulation Relating to the Modification of the Spent Fuel Storage Pool, dated May 15, 1981.
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. relating them to new information in the SER or EIA.1 Indeed, no attempt has been made to link the 31 new con-tentions to either document, and in some instances a cursory review of the NRC Staff's documents indicates the frivolous nature of some of these contentions.4/
Because all such contentions are outside the scope of the Board's Order, they are untimely under 10 C.F.R.
]
S 2.714(b), which provides that contentions must be filed
"(n]ot later Lnan fifteen (15] days prior to the holding of the special prehearing conference."
The Special Prehearing Conference in this proceeding was held in December 1979; thus, Intervenors' additional contentions are untimely by almost two years.
Moreover, S 2.714(b) provides that the grant of additional time for the filing of contentions must be based on a balancing of the five factors set forth in 1
S 2.714 (a) (1):
I l
(i)
Good cause, if any, for failure to file on time.
-3/
Although none of the contentions on their face relate to the SER or the EIA, Licensee has liberally construed Contention 9-1 to refer to the EIA.
That contention is therefore not subject to the present motion to dismiss.
Licensee has addressed a separate motion to Contention 9-1.
l' 4/
Compare, for example, new Contention 15-1 concerning "an unacceptable thermal impact" of the additional spent i
fuel with the discussion at page-11 (paragraph 5. 4 ) of the
-EIA.
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, (ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the peti-tioner's participation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the peti-tioner's participation will broaden the issues or delay the proceeding.
Because all of Intervenors' additional contentions with the e::ception of Contention 9-1 are untir.ely filed, the Board could grant Intervenors' Motion for Leave to File only af ter balancing the five factors set forth in the regula-i tion.
As to the first of those factors, Intervenors have not even attempted to show good cause for failure to file on time.
Moreover, Intervenors ' attempt to enlist the assistance of the Board by characterizing the 31 new contentions as ones raising " legitimate question (s) relating to the health and safety of the public" does nothing to advance their cause.
As shown infra, these new contentions consist of unsupported allegations which under any reasonable test cannot be said to raise legitimate questions relating to the health and safety of the public.
The Board cannot permit Intervenors through the exercise of a fertile imagination to inject these bare allegations into the proceeding and thereby place
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the unwarranted burden of disproving them on the Licensee and the NRC Staff.
1
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' Intervenors' Motion must therefore be denied, and Inter-venors' additional contentions, with the exception of Contention 9-1, must be dismissed.
II.
Response to Intervenors' Additional Contentions Notwithstanding that all but one of Intervenors' additional contentions must be dismissed for lack of time-liness, Licensee, in order to preserve its general and specific objections as to the form cf such contentions, sets forth such objections below.
A.
General Requirements for the Admission of Contantions The relevant standards which this Board must apply in detcrmining the legal admissibility of contentions are easily stated.
First an intervenor's contentions and the basis for each contention must be set forth with reasonable specificity.
10 C.F.R. 5 2.714(b).
The primary purpose for this requirement is to provide the Licensee and the NRC Staff with a fair opportunity to know precisely what the issues are, exactly what proof, evidence or testimony is required to meet each issue, and exactly what support the intervenor might intend to adduce for its allegations.
Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 771-2 (1977).
As the Commission itself stated in revising its regulations governing the hearing
~
process, " definition of the matters in controversy is widely
. recognized as the keystone to the efficient progress of a contested proceeding.
In order to put a matter in issue, it will not be sufficient merely to make an unsupported alle-gation."
37 Fed. Reg. 15127, 15128 (July 28, 1972).
See also Northern States Power Company (Prarie Island Nuclear Generating Plant, Units 1 and 2), ALAB-106, 6 AEC 188, 191, aff'd., CLI 73-12, 6 AEC 241 (1975), aff'd. sub nom. BPI v.
Atomic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974).
Licensee has pointed out below which of Inter-venors' addi ional contentions must fail for lack of specifi-city and basis.
Moreover, the rationale for the requirement of specificity compels the conclusion that the Board should apply the requirement more stringently to contentions filed at this advanced stage of the proceeding.
Licensee and the NRC Staff will not have the opportunity to take full and timely discovery with respect to such contentions.
It is, therefore, especially imperative that the issues be formulated precisely and the supporting information be designated clearly.
A second requirement is that the contentions must lea within the scope of the proceeding; stated another way, there must be a nexus between the licensing action proposed and the iscues sought to be litigated.. See, e.g.,
Kleppe v.
Sierra Club, 427 U.S.
390 (1976); Portland General Electric
7-Company, et al. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.
6 (1979); Public Service Co. of New Hampshire, at al.
(Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 541-2 (1977); and Gulf States Utility Company (River Bend Station, Units 1 and 2), 6 NRC 760, 773-4 (1977).
Licenseo has pointed out below which of Inter-venors ' additional contentions must fail for lack of a proper nexus with the proposed license amendment.
Finally, three of the contentions appear to be restatements of contentions that have already been admitted by the Board.
No purpose would be served by the admission of redundant contentions.
Licensee has pointed out below which contentions are objectionable on this ground.
l B.
Specific Objections to Contentions Late-Filed Contentions 1-1 and 1-2 state:
1-1 The additional emissions of Iodine-129 and Krypton-85 that will result from handling and storage of additional l
spent fuel is inimical to the l
public health and safety.
1 1-2 In addition, the failure of licensee to calculate such additional emissions pre-l cludes a finding that the proposed amendment is not inimical to public health and safety.
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Licensee objects to the admission of Contention 1-1 because it is legally deficient in that it lacks the required basis and specificity.
The contention fails to indicate the amount of additional Iodine-129 and. Krypton-85 emissions Intervenors expect.
It also fails to explain why such additional emissic'as, if cny, would be " inimical to the public health and safety."
In particuler, the contention i
fails to make it clear whether Intervenors contend Ehat: (1) the numerical assessment of Krypten-85 and Iodine-129 made 1
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by the NRC Staff in its SER and EIA is in error; (2) the predicted increased releases will not be in compliance with I
applicable Federal standards; or (3) the applicable Federal standards are not sufficient to protect the public health and safety.
Moreover, if interpretation (1) is correct, l
Intervenors have failed to provide some basis why the NRC l
Staff's SER and EIA estimates of Fr-85 and I-129 releases l
are wrong.
If interpretation (2) is what Intervenors really mean, Intervenors should specify which Federal standards will be violated by the predicted releases, If interpretation (3) is what Intervenors really mean, the contention may be barred because it is a challenge to the Commission's regulations not made in accordance with 10 C.F.R.
S 2.758, or because it is a challenge to other Federal rules which this Board is without jurisdiction to entertain.
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. Contention 1-2 lacks any basis in that it relies totally on the false assertion that Licensee has failed to calculate lodine-129 and Krypton-85 releases.
See Licensee's Responses to Christa-Maria Interrogatories 7-1 and 7-3 (Set i
li.
Moreover, even if Licensee had failed to make such calculations, Intervenors' contention fails to identify the legal requirement that compels such action.
Licensee is not aware of any such requirement.
In any event, the admis-sibility of Contention 1-2 depends upon a favorable ruling with respect to Contention 1-1.
Contention 1-2 cannot stand alone, and therefore it must be rejected along with Conten-i tion 1-1.
Finally, whatever concern Intervenors have in mind with respect to Kr-05 and I-129, it wculd appear to be encompassed within Intervenors' Contention 2 and O'Neill Contention IIA, which have already been accepted in liti-gation in this proceeding.
Thus, as a further basis for i
objection, it would appear that Contentions 1-1 and 1-2 l
should be rejected as merely presenting cumulative matters already covered by other admitted conteations.
O
10-Late-filed Contentions 2-1 and 2-2 state:
2-1 The frilure of the licensee to encapsulate all defective spent fuel elements before placing them in the spent fuel pool is inimical to the public health and safety.
2-2 Alternatively, if the license amendment is approved, 7 con-dition should require such encapsulation.
Licensee objects to the admission of Contention 2-1 because it is legally deficient in that it lacks the required basis and specificity.
Contention 2-1 fails to specify what is meant by " defective" spent fuel elements, and what basis there is for believing that failure to encapsulate such elements is " inimical to the public health and safety."
The contention also dces not specify whether the concern " solved" by encapsulation is radioactive re-ieases from stored fuel, potential fuel handling accidents, criticality, or something else.
In addition, no basis is given supporting the implicit assumption that " defective" spent fuel assemblies can be identified and encapsulated before they are placed in the spent fuel pool.
The admissibility of Contention 2-2 depends upon a favorable ruling with respect to Contention 2-1.
Contention 2-1 cannot stand alone, and therefore it must be rejected along with Contention 2-1.
~
. Late-filed Contentions 3-1 and 3-2 state:
3-1 The application fails to pro-vide that (a) all fuel transfer operations be conducted with the containment isolated, (b) the isolation must be inter-spersed with breaks during which no fuel transfer opera-tions are conducted so that containment may be vented to allow dissipation of humidity and airborn concentrations of radiation, and (c) the contain-ment should be isolated as a precaution against faulty isola-tion equipment coupled with fuel handling accidents which would release unacceptable i
levels of radiation to the environment.
For each of these reasons, the expansion is inimical to the public health and safety.
3-2 Alternatively, if the license amendment is approved, con-diitons requiring the above should be imposed.
Licensee objects to the admission of Contention 3-1 because it is legally deficient in that it lacks the required basis and specificity.
Contention 3-1 fails to provide a basis explaining why " fuel transfer operations" need to be changed because new racks are installed in the pool.
The contention also fails to provide any basis for the assertion that there is ' faulty (containment] isolation equipment at Big Rock Point Plant," or the conclusion that
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. the nature of such faults is such that they could lead to
" unacceptable levels of radiation to the environment. "
The phrase, " unacceptable levels of radiation" is itself un-reasonably vague and totally lacks the specificity required by 10 C.F.R.
S 2.714.
It is not clear what levels of radiation Intervenors are contending are unacceptable, and whether the contention constitutes an impermissible atta'.:k on NRC regulations found in 10 C.F.R. Part 100 and else-where.
See 10 C.F.R. S 2.758.
The admissibility of contention 3-2 depends upon a favorable ruling with respect to Contention 3-1.
Con-tention 3-2 cannot stand alone, and therefore it must be rejected along with Contention 3-1.
Late-filed Contentions 4-1 and 4-2 state:
4-1 Because of problems asso-ciated with radioactive crud being added to the pool from the moving of stored fuel elements and the washing down of the old racks, contamina-tion levels may not be kept within limits in the pool area.
Therefore, before work begins licensee should measure and record ambient radiation levels around the pool.
After the replacement of the stor-age racks and the fuel elements currently stored in them, the licensee shall again measure the radiation levels around the
13-pool, monitoring such levels and operating the cleanup system until levels return to those typical before the rack modi-fication was begun.
No fur-ther activities which would then increase the radioactive content of the pool (such as refueling) shall be carried out until the levela return to those typical of the period i
before the modification.
Fail-ure of the application to so provide is inimical to the public health and safety.
4-2 Alternatively, if the license amendment is approved, con-ditions requiring the above should he imposed.
Licensee objects to the admission of Contention 4-1 because it is legally deficient in that it lacks the required basis and specificity.
Intervenors assert that radiation levels in the vicinity of the spent fuel pool l
during reracking are " inimical to the public health and safety."
Since the term "public health and safety" is a term of art in NRC practice in that it does not include occupational exposure to workers, Licensee is unable to guess, and Intervenors provide no insight, how radiation levels in the pool vicinity could adversely affect the general public.
If Contention 4-1 is construed to raise the issue of occupational exposure to workers due to the reracking
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. operation, it is cumulative and redundant with O'Neill Contention IIA, and it should be denied for that reason.
In addition, it should be noted that O'Neill Contention IIA also raises the question of the effect of " releases of radioactivity through the south wall of the pool" which allegedly exceed the guidelines established fcr the general public in Appendix I to 10 C.F.R. Part 50.
Thus, it would appear that the concern raised by Intervenors in Contention 4-1 is at least in part covered by O'Neill Contention IIA.
The admissibility of Contention 4-2 depends upon a favorable ruling with respect to Contention 4-1.
Conten-tion 4-2 cannot stand alone, and therefore it must be rejected along with Contention 4-1.
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Late-filed Contentions 5-1 and 5-2 state:
5-1 The application does not pro-vide for shipment of the old spent fuel storage racks whole in large crates rather than cut up into smaller pieces and is therefore inimical to public health and safety.
5-2 Alternatively, if the license amendment is approved, condi-l tions requiring shipment whole should be impcsed.
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15-Licensee objects to the admission of Contention 5-1 because it is legally deficient in that it lacks the required basis and specificity.
Licensee is unable to understand the basis for Intervenors ' avsertion that Li-censee intends to " cut up" the old racks and ship them off-site in crates.
In fact, as stated in Licensee's response dated October 19, 1979, to NRC Technical Review Questions 1 and 9, only one fuel rack will be remo red from the pool, and "This rack will be decontaminated and left on-site."
The same information is included in the NRC Staff's EIA dated May 15, 1981 (page 8).
Finally, Intervenors offer no ex-planation as to why it is better to ship (even if Licensee so intended) a whole rack as compared to one cut in pieces.
Trus, there is no basis for Contention 5-1.EI i
The admissibility of Contention 5-2 depends upon a favorable ruling with respect to Contention 5-1.
Con-tention 5-2 cannot stand alone, and therefore it must be rejected along with Contention 5-1.
I 5/
We note that these contentions are apparently cribbed l
f rota Northern States Power Company, (Prairie Island 4
Nuclear Generating Plant, Units 1.tnd 2) and Vermont l
Yankee Nuclear Power Corporation (Vermont Yankee l-Nuclear Station), ALAB-455, 7 NRC 41, 51-62 (1978).
l They have no application to this spent fuel case.
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. Late-filed Contentions 6-1 and 6-2 state:
t 6-1 The application does not limit quantity or heights of loads which are carried over the spent fuel pool so as to pre-clude impact energies in excess of 240,000 in-lb. and is inimi-cal to public health and safety.
6-2 Alterne lvely, if the license amendment is approved, cond.i-tions requiring such limits should be imposed.
Licensee objects to the admisslan of Contention 6-1 because it is legally deficient in that it lacks the required basis and specificity.
This contention lacks any basis for the proposed limit ri 240,000 in-lbs. for impact a
energies.
This number is apparently cribbed fro.n a casual reading of the Atomic Safety and Licensing Appeal Board's decision, based on different facts in a different spent fuel case,6/ and it has no relevance in the context of this case.
In addition, the SER provides in great detail the' limitations on carrying loads over the spent fuel, and yet Intervenors make no effort to specify which loads are of concern, or why the proposed limitations are inadequate.
6/
See Portland General Electric Company (Trojan Nuclear Plant), ALAE-531, 9 NRC 263, 276-277 (1979).
. The admissibility of Contention 6-2 depends upon a f avorable ruling with respect to Contention 6-1.
Contention E-2 cannot stand alone, and therefore it must be rejected along with Contention 6-1.
Fina) I.y, these contentions appear to be cumulative and cover the same general territory as O'Neill Contention IIG(a) (Administrative Controls on Heavy Loads) and there-fore they should be rejected for this further reason.
Late-filed Contentions 7-3 and 7-2 state:
7-1 The absence of a pool cover to preclude heavy object drops and cask tipping acci-dente is inimical to public health and safety.
7-2 Alternatively, if the license amendment is approved, a con-l dition requiring a pool cover should be imposed.
l Licensee objects to the admission of Contention 7-1 because it is legally deficient in that it lacks the required basis and specificity.
This contention fails to identify which " heavy object drops" and " cask tipping accidents" the proposed pool cover should withstand.
(Are l
Intervenors suggesting that a pool cover be devised which would withstand all such drops, including a drop of the 24-ton fuel transfer cask?)
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! i contention lacks any reasonable basis in that it fails to explain how Licensee could transfer fuel in the pool or conduct other operations which necessarily involve subner-sion of various casks and heavy objects in the pool, if their suggested pool cover were in place; or what protection such a pool cover would provide the stored spent fuel if such loads were somehow lowered, as required, into the pool beneath the pool cover.
The admissibility cf Contention 7-2 depends upon a favorable ruling with respect to Contention 7-1.
Con-tention 7-2 cannot stand alone, and therefore it must be rejected along with Contention 7-1.
Late-filed Contentions 8-1 and 8-2 state:
8-1 The application is inimical to public health and safety because it does not provide that:
the pool shall be borated to 2,000 ppm during the removal and installation of the racks and until completion of rack re-placement to preclude l
critical.ty due to over-i turned racks and conse-quent spillec fuel elements, or due to the dropping of l
racks on one another.
8-2 Alternatively, if the license amerdment is granted, a condi-tion requiring such location should be imposedr.
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l Licensee objects to the admission of Contention 8-1 becausa it is legally deficient in that it lacks the required basis and specificity.
First, the meaning of the phrase "and until completion of rack replacement" is unclear if it means anything more than the immediately-preceding phrase, "the removal and installation of the racks. "
Second, there is no information offered to support the t
apparent assumptions that overturned racks may lead to l
" consequent spilled fuel elements," or that racks may be dropped on one another.
As stated in Licensee's response l
l dated October 1, 1979, to NRC Staff Technical Review Ques-tion 15, " Fuel racks with fuel assemblies stored in them will not be handled or moved.
Only empty racks will be moved in the pool. "
Similarly, the NRC Staff's Safety Evaluation dated May 15, 1981, states at page 3-5:
(3)
No rack shall be moved in the vicinity of stored spent i
fuel so that a direct drop l
or tipping of the rack will result in damage to the spent fuel (4)
All racks sball be moved only when empty.
Intervenors make no effort to explain why these and the l
other precautions stated in the SER are inadequate, and l
Licensee and the NRC Staff are lef t to guess at how the overturning or dropping of racks may occur.
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. Finally, the contention contains no basis if the apparent assumption that adding a concentration of 2 000 ppm of boron to the pool would be necessary, or sufficient to preclude criticality under the circumstances hypothesized.
The number, 2,000 ppm, is apparently cribbed from unrelated spent fuel cases 7/ and merely represents the usual con-centration of boric acid used in spent fuel pools for Pressurized Water Reactors.
The admissibility of Contention 8-2 depends upon a favorable ruling with respect to Contention 8-1.
Con-tention 8-2 cannot stand alone, and therefore it must be rej ected along with Contention 8-1.
Late-filed Contention 9-1 has been addressed by separate motion.
See Motion to Dismiss Contention 9-1 and to Establish Briefing Schedule.
Late-filed Contention 10-1 states:
10-1 By increasing on-site stor-age of spent fuel, the enlargement of the spent fuel pool would increase the danger to public health 7/
- See, e.g.,
Portland General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 276 (1979).
. involving tornado or tur-bine missiles impacting the spent fuel pool.
The pool as modified will not withstand such accidents within the limits set in NRC regulations.
l Licensee objects to the duission of Contention 10-1 because it is legally deficient in that it lacks the required basis and specificity.
No reason is given why local meteorology or turbine characteristics and geometry i
may lead to a credible possibility of such missiles being generated at the Big Rock Point Plant.
Similar short-l l
comings apply to the question of tornado missiles.
For example, what intensity tornado do Intervenors have in mind?
Further, the proposed contention lacks specificity in that it does not state what specific missiles and impact energies represent the perceived hazard due to these sources.
The mere fact that there may be more spent fuel in the pool as a result of Licensee's proposal does not sig-i nificantly affect the risk due to turbine missiles or tornado missiles.
The likelihood of such events is not increased, and the potential consequences are not materially increased.
This is because (1) the additional spent fuel which would be stored due to the proposed license amendments will have decayed more than three years and, therefore, does i
not represent a significant addition to the overall inventory
. of volatile radioactivity present in recently discharged fuel.
See NRC Staff's EIA, pp.
4-5.
The foregoing dis-cussion emphasizes the lack of basis for Contention 10-1.
Late-filed Contentions 11-1 and 11-2 state:
11-1 NEPA S 102 (2 ) (C ) requires an Environmental Impact State-i mont on the environmental im-pacts of the spent fuel pool expansion.
11-2 NEPA S 102(2)(C) req: ires an Environmental Impact State-ment on the additional plant operation which will be made possible by che expansion of the spent fuel pool.
Licensee objects to Contention 11-1 as lacking the l
l required specificity and basis.
Intervenore make the base and conclusory allegation that S 102(2)(C) of NEPA requires preparation of an Environmental Impact Statement covering the impacts of pool expansion, yet they point to no facts l
l supporting the underlying conclusion that the expansion is a major federal action within the meaning of the statute.
l This contention presents a particularly egregious example of Intervenors' failure to address the SER and the EIA.
The NRC Staff concluded in the EIA that the expansicn of the Big Rock Point spent fuel pool was not a major federal action requiring preparation of an EIS.
Intervenors do not take i
specific issue with any o.! the information on which the NRC i
Staff based its conclusion.
Consequently, Intervenors' unsupported legal conclusion is not admissible as a con-tention under 10 C.F.R. S 2.714.
I contention 11-2 is inadmissible because it asks the Board to consider an issua that is res judicata.
The question whether S 102(2)(C) of NEPA requires the preparation i
l of an Environmental Impact Statement covering impacts of additional plant operation is barred by the Atomic Safety l
l and Licensing Appeal Board's decision in this case.
In l
ALAB-636, (March 31, 1981), the Appeal Board answered this question in the negative.
Late-filed Contentions 12-1 and 12-2 state:
12-1 If a steam explosion or a melt-down occurred at Big Rock Point, the radiological consequences of an expanded spent fuel [ pool] would be greater than at present and inimical to the health and safety of the public.
12-2 If a steam explosion occurred in which spent _ fuel is ex-pelled through the contain-ment, the increased quantity of spent fuel increases the damage to the health and safety of the public.
. Licensee objects to the admission of Contention 12-1 because it is legally deficient in that it lacks specificity and basis.
In particular, Intervenors do not specify the nature of the " steam explosion" to which they refer, although a " melt-down" presumably refers to a partial melting of fuel elements in the reactor core.
Moreover, Intervenors do not attempt to indicate how either of these events could occur; they thus give no basis for believing that either of the events are credible.
- Finally, Intervenors make no attempt to explain how either event could have an impact on the spent fuel pool at all, much less cause the pool to have " radiological consequences" of an unspecified nature.
Contention 12-2 utterly lacks any specificity or basis.
There is no explanation of where the " steam explo-sion" referred to is expected to occur.
Are Intervenors talking about the spent fuel pool, the reactor, the primary system, or some other plant system?
Similarly, no attempt is made to describe the cause of an explosion.
In par-l ticular, if Intervenors mean to assert that such an explo-l sion could occur in the spent fuel pool, Licensee is at a loss to understand how.
Licensee should not be forced to guess about the meaning of incredibly indefinite, and definitely incredible, scenarios such_as that described in i
l this proposed contention.
. Contentions 12-1 and 12-2 should be rejected for failing to provide the requisite basis and specificity.
Late-filed Contention 13-1 states:
13-1 Big Rock Point does not have alternate sources of power in the event its primary power source fails.
Such failure would render in-operable safety equipment in the expanded spent fuel pool including, without limitation, the cooling sys-tem, to the det:riment of the health and safety of the public.
Licensee objects to the admission of Contention 13-1 because it is legally insufficient in that it lacks basis and specificity.
The proposed contention lacks basis first because it is founded on a false assertion, that " Big 1
Rock Point does not have alternative sources of power in the event its primary power source fails. " 8/
The proposed contention also lacks basis in that it fails co provide even a cursory explanation of why the loss of power to the spent fuel pool cooling system would be "to the detriment of the j
8/
Intervenors know this is incorrect since in their third
~
set of interrogatories, they specifically ask questions about on-site and emergency diesel generators.
See Interrogatory No. 40 (Set III). -
l
. health and safety of the public."
In particular, it is not clear what assumption Intervenors are making concerning the time period within which power can be restored, which is an impartant aspect in assessing the credibility of this acci-dent scenario.
Finally, Intervenors cannot avoid their obligation under to 10 C.F.R.
S 2.714 to set forth con-tentions and bases with reasonable specificity by recourse to the phrase, "without limitation. "
If Intervenors have any reasonable basis for believing the loss of power could adversely affect the spent fuel pool, they have the obliga-tion to provide that information under the NRl's regulations.
Contention 13-1 must be rejected for failing to provide the requisite basis and specificity.
Late-filed Contention 14-1 states:
14-1 Since the spent fuel pool at Big Rock Point is not borated, any accident, including tor-nado missile, earthquake or earthquake missile, tipping of a cask into the pool, or drop of a heavy object into the pool which could result in a denser configuration of the fuel as-semblies thereby makes criti-cality excursions more likely if additional fuel is stored in deneer configurations than it is presently stored.
The expansion is therefore inimical to the health and safety of the public.
. Licensee objects to the admission of Contention 14-1 for the reasons discussed below.
The contention con-sists of a pot pourri of assertions related to other late-filed contentions and, as explained, some of Licensee's arguments in opposition to those contentions apply with equal force to aspects of Contention 14-1.
Contention 14-1 asserts that because the spent fuel pool at Big Rock Point is not borated, certain accidents or natural phenomena will create criticality excursions.
This contention is closely allied with late-filed Contentions 7-1 and 8-1.
As pointed out at pages 19-20, supra, Intervenors make no effort to explain why the precautions set forth in l
Licensee's application and the NRC Staff's SER are inadequate, l
especially with respect to two of the events listed in Contention 14-1, namely, tipping of a cask or drop of a heavy object into the pool.
Moreover, the notion of borating the pool at Big Rock Point, as suggested in Contention 14-1, suffers frcm the same lack of basis dascribed in Licensee's response, _s_up ra, to late-filed Contention 8-1.
Licensee's response to late-filed Contention 10-1, i
sugra, pages 21-22, articulates the lack of basis for the l
l asserted concern for tornado missiles.
That response is equally applicable to the tornado missile aspect of Conten-tion 14-1, and by analogy to " earthquake missiles" as well.
I l
l l
l
1
. L ikew ' Le, Licensea's response, infra, pages 31-33, to late-filed Contentions 17-1 and 17-2 demonstrates the lack of t
basis for the earthquake aspect of Contention 14-1.
Finally, Intervenors offer no explanation or basis for their conviction that any one of thitse events "could i
result in a denser configuration of the fuel assemblies thereby mak [ing] c.-iticality excursions more likely if additional fuel is stored in denser configurations than is presently stored Instead, Licensee and the NRC j
Staff must fathom Intervenors' state-of-mind to ascertain the factual underpinnings for their va;.'.ous concerns.
Contention 14-1 must be rejected for failing to provide the requisite basis and specificity.
Late-filed Contention 15-1 states:
15-1 The additional spent fuel will increase the heat dis-l charged into Lake Michigan, creating an unacceptable thermal impact, a deleterious imbalance of ecosystems in the area of Lake Michigan, and a danger to the health and safety of the public.
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. l Licensee objects to Contention 15-1 because it i
is legally deficient in that it lacks basis and specificity in the following respects:
(1)
The phrase " deleterious imbalance of eco-systems in the ar.ra of Lake Michigan" is so broad and vague as to be meaningless; (2)
No definition of " unacceptable thermal im-pact" is given; (3)
No explanation of why warmer water would be "a danger to the health and safety of the public;" and (4)
The NRC Staff's EIA estimate (at p.
- 11) that the increase in thermal discharge from the Plant tc Lake Michigan due to the proposed modification is less than 0.04% is not challenged.
Intervenors should clearly state with respect to.
item (4) whether they disagree with this estimate or, if not, why such a staall increase would wreak the havoc suggested by Contention 15-1.
1 Contention 15-1 must be rejected for failing to set forth the requisite basis and specificity.
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. Late-filed Contention 16-1 states:
16-1 The existence of additional plutonium enriched spent fuel on sita will increase leakage or discharge of radioactive matter to the detriment of the health and safety cf the public.
Licensee objects to Contention 16-1 because it is legally deficient in that it lacks basis and specificity.
No attempt is made to explain how the mere presence of mixed-oxide fuel on site could increase " leakage or dis-charge of radioactive matter."
The contention is unclear on what radioactive matter it is referring to, or what the source is.
If the source ic mixed-oxide fuel stored in the spent fuel pool, no basis is given for the apparent asser-tion that such fuel will leak (plutonium?) more tnan other fuel.
Finally, suggesting that increased releases or dis-charges of radioactiave materials will be detrimental to the
" health and safety of the public," without specifying the quantity of any such increase, once again leaves Licensee and the NRC Staff to speculate whether the calculations of radioactive discharges performed by Licensee and by the NRC Staff are being challenged, or whether instead Intervenors intend at. attack on current NRC regulations governing such discharges.
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. Contention 16-1, insofar as it is directed at challenging the use of " additional plutanium-enriched spent fuel on site" at some future time, must be rejected fer the further reason that the contention is outside the scope of this license amendment proceeding and necessarily beyond the Board's jurisdiction.
Contention 16-1 must be rejected for the foregoing 1
reasons.
Late-filed Contentions 17-1 and 17-2 state:
17-1 Big Rock Point has not been seismically qualified and does not nect NRC seismic standards.
No license amend-l ment may be approved for a plant which does not meet NRC standards.
i 17-2 Big Rock Point has not been seismically qualified and does not meet NRC seismic qualifications.
In the j
event of an earthquake, l
an increase in the quan-tity of spent fuel on site increases the possibility of a melt down and the dangers to the health and safety from a release of radioactive water and materials.
Licensee objects to the admission of Contention 17-1 because it lacks any legal nexus with Licensee's appli-cation for a license amendment to expand the capacity of the i
r
. spent fuel pool.
The proposed contention seeks to challenge the everall adequacy of the seismic deisgn of the Big Rock Point Plant, a subject not within the jurisdiction of this Board.
In addition, there is no basis given for the naked assertion that the Big Rock Point Plant does not meet NRC seismic standards.
The plant met the seismic standards in existence at the time of its construction in 1960, and although the NRC Staff is re-evaluating this matter using Appendix A to 10 C.F.R. Part 100 as a guide, the building code standards in effect in 1960 remain the legal standard applicable to Big Rock Point.
Contention 17-1 must be rejected on jurisdictional grounds, and in any event, because of a lack of the requisite basis and specificity.
Licensee objects to the admission of Contention f
17-2 because it is legally deficient in that it lacks basis i
and specificity.
As discussed above, no basis is given for Intervenors' assertion that Big Rock Point does not meet NRC seismic standards.
In addition, no clue is given to ex-plain why the presence of additional spent fuel on site l
" increases the possibility of a meltdown. "
Finally, Conten-tion 17-2 is fatally deficient because it neither describes with reasonable ropecificity the " earthquake" referred to l.
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. therein, nor provides some basis for believing such an earthquake could occur at the Big Rock Point site.
Contention 17-2 must be rejected for failing to provide the requisite basis and specificity.
Late-filed Contentions 18-1 and 18-2 state:
18-1 The application is deficient because it does not disclose or address the problems arising from expansion of the spent fuel pool and the construction and operation of a rad-waste facility li-censee proposed to build at Big Rock Point.
18-2 The increase in on site radio-active material from the ex-pansion of the spent fuel pool and the proposed rad-waste facility is inimical to the health and safety of the public.
l Licensee objects to the admissibility of Conten-tions 18-1 and 18-2 because they are legally deficient in l
that they lack basis and specificity.
No logical connection is made between the expansion of the spent fuel pool capacity which is within this Board's jurisdiction, and the construc-tion and operation of a rad-waste facility / on site, which 1
9/
Intervenors so-called " rad-waste facility" is in fact nothing'more than a construction activity.to enclose an existing space on the Big Rock Point site that is'used to store temporarily steel drums of low-level waste prior to shipment to a low-level waste burial site.
i i
i
- is not.
The " problems" which Intervenors believe may arise from the two separate actions are not identified with any specificity, nor is there any basis at all in the conten-tions supporting the assertion that the two actions are factually related or that either will, in fact, cause any
" problems " at all.
Contentions 18-1 and 18-2 must be rejected for failing to provide the requisite basis and specificity.
i Late-filed Contention 18-3 states:
18-3 The purpose of expansion of the spent fuel pool is to provide storage space for spent fuel from other nu-clear facilities of licensee and nuclear wastes from other organizations.
Big Rock Point has not been
(
- icensed for such storage purposes.
Therefore, the l
application should be denied.
Licensee objects to the admission of Contention 18-3 because it lacks any basis.
fact or nexus to this case.
Not only will the requested License Amendment not l
authorize Licensee to receive at Big Rock Point spent fuel and nuclear wastes from other facilities and organizations, the present operating license for Big Rock Point precludes i
this.
The Board should take official notice of these obvious facts and reject Contention 18-3 as frivolous, i
e
, III. Conclusion For the reasons stated, Licensee's Motion to Dismiss Additional Contentions of Intervenors Christa-Maria, E t A1., should be granted; Intervenors' Motion for Leave to File Additional Contentions should be denied; and in the alternative, Intervenors' new contentions, except for 9-1, should be rejected for failing to meet the standards for basis, specificity and/or nexus mandated by 10 C.F.R.
S 2.714 and the applicable case law.
Respectfully submitted, see ph Gfallo, Esquire l C.,kj Philip $teptoe,/ Esquire /
/%
Peter Thornton, Esquire' Three of the Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE Suite 325 1120 Connecticut Avenue, N.W.
Washington, D.C.
20036 (202) 833-9730 ISHAM, LINCOLN & BEALE Suite e200 One First National Plaza Chicago, Illinois 60603 (312) 588-7500 Dated:
September 15, 1981
l
/-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TSE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-155-OLA CONSUMERS POWER COMPANY
)
(Spent Fuel Pool
)
Expansion)
(Big Rock Point Nuclear Plant)
)
CERTIFICATE OF SERVICE I hereby certify that copies of LICENSEE 'S MOTION TO DISMISS ADDITIONAL CONTENTIONS OF INTERVENORS CHRISTA-MARIA, ET AL., ANSWER TC INTERVENORS' MOTION FOR LEAVE TO FILE ADDI-I TIONAL CONTENTIONS, AND RESPONSE TO INTERVENORS ' ADDITIONAL CONTENTIONS and MOTION TO DISMISS CONTENTION 9-1 AND TO ESTABLISH BRIEFING SCHEDULE in the above-captioned proceeding were served on the following by deposit in the United States mail, first-class postage prepaid, this 15th day of September, 1981.
4 Herbert Grossman, Esquire Atomic Safety snd Licensing Atomic Safety and Licensing Board Panel
(
Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 i
Washington, D.C.
20555 Atomic Safety and Licensing i
Dr. Oscar H.
Paris Appeal 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 Docketing and Service Section Office of the Secretary Mr. Frederick J. Shon U.S. Nuclear Regulatory l
Atomic Safety and Licensing Commission Board Panel Wa'shington, D.C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
. Janice E.
Moore, Esquire Judd Bacon, Esquire Counsel for NRC Staff Censumers 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 49720 Mr. John O 'Neill, II Route 2, Box 44 Mr. James Mills i
Maple City, Michigan 49664 Route 2, Box 108 Charlevoix, Michigan 49720
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