ML20032E020
| ML20032E020 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 10/26/1981 |
| From: | Ahrens P, Brown R MAINE, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20032E015 | List: |
| References | |
| ISSUANCES-OLA, NUDOCS 8111190514 | |
| Download: ML20032E020 (10) | |
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9 Offi UNITED STATES OF AMERICA D
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket No. 50-309-OLA
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(Spent Fuel Compaction)
MAINE YANKEE ATOMIC POWER COMPANY
)
(Maine Yankee Atomic Power Station)
)
October 26, 1981 STATE OF MAINE REQUEST FOR NOTICE AND ORDER SCHEDULING PREHEARING CONFERENCE Since the State of Maine filed its Amended Contentions, the licensee has filed two documents which call for responses and which form part of the grounds for the formal request to the Board to issue a notice and order scheduling a second prehearing conference.
The two documents filed by Maine Yankee are its " complete report" dated October 5, 1981 and its responses to the State's Amended Contentions dated October 13, 1981.
Maine Yankee's " Complete Report" Maine Yankee's " complete report" was alluded to in its revised application of July 28, 1981, submitted one day after the State first filed its contentions.
The " complete report was promised by mid-August, well in advance of the time by which the State of Maine was to file its Amended Contentions.
On September 24, 1981, Robert A. Clark, Chief, Operating Reactors Branch #3, Division of 8111190514 8 g9 PDR ADOCK 0 PDR G
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, p Licensing CNRCl, sent a letter Owhich.' we did~ not receive until-October 5)J to Mr. Groce of Maine Yankee asking that' the complete
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report, or a firm submittal date for the report, be sent to' NRC by October 1, 1981.
On October'5', on.the same day the State filed its contentions, Maine Yankee-mailed NRC its "comple t'e. report, "
l-which is 131 pages long and contains information significantly new and different from previous. applications.
We have repeatedly objected to. the requirement that the State file its contentions before the major documents required to be filed by the licensee or staff are in fact - filed.
See-State Contentions of. July 27, 1981, p. 2; State's. cover letter of October 5, 1981; enclosing its Amended Contentions; Transcript -of ~ August 11, 1981 Prehearing Conference, p. 20 ff.
The latest-filing of Maine Yankee's l-complete report emphasizes the unfairness, as a legal matter, of.
4 i
the required timing of filing our contentions.. Although Maine Yankee claims in its October 5 submission that the material is
" essentially a compilation of information previously submitted" (p. 1-11, the October 5 submission in fact contains'significant information not contained in earlier submissions.
Specific examples i
of such new and different information include:
(.1) an entirely new thermal hydraulics analysis for dae new 10.25 inch spacing proposal (S 2 of the report).
Also, compare the October 5,1981 table for required decay times (table 2.1-1, p.
2-2) with purportedly the same table submitted June 3,1981 4
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(table 8-1, p.
- 16) for a specific example of our belief that the t
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& October 5, 1981 submittal is more than just a " compilation of infor-mation previously submitted."
(2) an entirely new criticality analysis for the new 10.25 inch spacing proposal CS 3 of the reportl.
Note that the new k-effective with uncertainties for the worst-case rack design is now.94519 (5 3.3.3).
The applicant has included'a new graph which differs markedly from the graph previously submitted to support its previous criticality analysis (see figure 3.1, September 29, 1980 application by Maine Yankee).
(3) the applicant also claims in its October 5, 1981 submittal that the report "is response to the staff's request for a complete document" (p. 1-1)..
However, the one-page description of " pin s torage" (see p. 4-52) hardly can be considered a " complete answer" to previous staff questions (see staff questions 3 and 12 dated November 30,.1979; staff question 15 dated January 28, 1980).
Quite frankly we are at a loss to know how to interpret the 131-page document.
On its face it appears to be in essence a new application -- viz, it supplies for the first time supporting data for 10.25 inch spacing, first proposed on July 28, 1981.
A brief review of the history of Maine Yankt7's applications demonstrates how the licensee has kept changing its proposals and why some response by the Board is necessary to avoid spending time and resources on matters which the licensee then changes.
On September 18, 1979 Maine Yankee proposed to expand its spent fuel storage capacity by means of pin compaction.
On October 16, 1979
4
_4 the NRC published its Notice of the proposed amendment and on January 25, 1980 the Board ordered contentions to be filed by April 28, 19 80.
On September 29,-1980 Maine Yankee amended its proposal to expand its spent fuel storage capacity by means of pin -
1 compaction, _ reracking and use of the cask laydown area. ~The-Board i
then ordered publication of a supplemental notice of opportunity-for hearing.
On July 27, 1981 the State of Maine filed its conten-
~
tions~ and one day later Maine Yankee changed its reracking proposal by narrowing the center-to-center spacing..Mie Board allowed ~the State _until October 5, 1981 to file amended contentions.
On October 5, 1981 the State filed its. amended contentions and on the same-day.
Maine Yankee filed a 131-page modification to its July 28, 1981 application for 10.25 inch spacing.
Based on the above history of filings'by Maine Yankee, we are unclear about the following matters as a result of the October 5 filing:
(a)
Is the October 5 filing, to the extent it is explicitly l
. inconsistent with previous filings, intended to supersede the previous filings?
l (b ).
Is the October 5 filing to be considered as a new applica-r l
tion?
It certainly contains significant substantive information which is different from previous applications and not available to a
the State when it filed its contentions.
j
(.c )
Does Maine Yankee-intend to change its application again in the near future?
It is an unnecessary use of the valuable time i
and resources of the Board, staff and the State to require contentions 1
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. to be filed and arguments. to be made when the issues are made moot by sdbstantively new filings by Maine Yankee.
We respectfully suggest that the Board has at least three options available to it in response'to the October 5, 1981 filing by Maine Yankee:
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it can publish a supplemental notice of oppor-tunity for hearing, including the date for filing of contentions based on the latest change in the applications by Maine Yankee; or (21 if the Board does not consider the most recent change by Maine Yankee significant enough to order a supplemental notice, it can order a new date for the filing of-all contentions; or (3) it can order a new date for the filing of supplemental contentions based on the July 28 and October 5 application amendments by Maine Yankee.
The filing of new contentions in response to the October 5
" complete report" should not be considered as " late filings" requiring good cause to be shown, but rather should be considered timely (provided of course that they are filed as of a new date specified by the Board).
We believe that the possibility of requiring current petitioners to show " good cause" for late filing is unfair and unrealistic when the applicant has changed its application and the Board has yet to rule on the admission of contentions.
Petitions for late filing are appropriate, when, e.g., discovery leads to information, previously unavailable, which forms a basis for a con-tention relating to a pending application.
However, when the
.. plicant changes its application prior to a final ruling on con-tentions, requiring petitioners to show good cause for late filing places the burden unfairly on the petitioner.
, Although the State of Maine believes it would not be inapprop-riate for the Board to follow the first option outlined above and order publication of a new notice of opportunity' for hearing, based on the new. application of July 28 and the new supporting data of October 5, 1981, the State on its behalf suggests that the Board follow the third option and order a second prehearing conference l
and include in the notice of the second prehearing conference a date (e.g.,15 days prior the date of the conference) by which petitioners may file additional contentions based on the July 28 and October 5 application submittals.
~
We believe that the State's request for a second prehearing conference must be granted by the Board both in light of the July 28 and October 5 applications by Maine Yankee and as a matter of law.
See 10 CFR S 2.751a; Houston Lighting and Power (Allenc Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521 (1979).
As the Appeals Board noted in Allens Creek,10 NRC at 525: ".
intervencrs must be heard in response because they cannot be required to have anticipated in the contentions them-selves idun possible arguments their opponents might raise as grounds for dismissing them."
(emphasis in the origina)).
Maine Yankee's Response to Maine's Amended Contentions t
The Applicant's Response to the State's Amended Contentions dated October 13, 1981 appears to be based on rules proposed by the NRC (but not yet adoptedl rather than on existing L
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. Licensing and Appeals Boards decisions and the language of S 2.714.
The NRC has proposed a rule which would require intervenors to make a full evidentiary showing at the time contentions are filed.
See 46 Fed. Reg. 30349 (June 8, 19811 However the proposed rule has yet to be adopted and it is markedly different from the current language and NRC interpretations of 5 2.714.
In a recent cafe regarding intervention petitions, the Atomic Safety and Licensing Appeal Board emphasized that it was not the function of the Licensing Board to reach the merits of contentions but only to determine if a petitioner has stated the reasons for each contention with reason-able specificity.
Houston Lichtino and Power Company. (Allens Creek Nuclear Generating Station, Unit 1),11 NRC 542 (1980).
See also, Commonwealth Edison Company (3yron Nuclear Power Station, Units 1 and 2), 12 NRC 683 (1980); Mississippi Power and Light Company (Grand Gulf Nuclear Generating Stations, Units 1 and 2), ALAB 130, 6 AEC 423 (19731 and cases cited therein; Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1.ind 2), ALAB 522, 9 NRC 54 (19791; Duke Power Company (Transportation of Spent Fuel from Oconee to McGuire), ALAB 528, 4 NRC 146 (1979).
Each of the contentions propcsed by the State was drafted in light of previous Licensing and Appeals Board decisions in mind.
It does not seem possible to us to think that the 4.pplicant is not on notice as to what is asserted in each of our contentions as as what evidence might be used to support or rebut each contention.
We readily admit that the applicant may not now agree with the substance of each of our contentions, but such disagreement, L
_s
. whether based on its view of the facts or the law,is not the test for whethur a contention should be admitted.
As the Appeals Board noted in Allens Creek, ALAB 590:
. whether (the intervenorl will be able to prove Ehe assertions underlying the contention is quite beside the point at this preliminary stage of the proceeding.
All that is of present moment is that, under the Rules of Practice of this Commission, as they have been uniformly interpreted, he is entitled to party status to afford him the opportunity to do so.
11 NRC 542, 549 (1980).
Although we plan to supplement this letter in much greater detail at the second Prehearing Conference which we propose herein, we would like to point out responses by the applicant which serve as examples for our concern that some higher standard is now being required for admissibility of contentions.
In response to the State's Amended Contention la, the applicant claims that one of the State's factual bases is "just plain wrong."
While obviously we dispute such characterization by the applicant, the important point is that the applicant understands the basis and argues that as a factual matter the State's contention must fail.
Such a factual argument is appropriate not at the stage of deciding whether a contention is admissible but only during a motion for 1
sumnary disposition or at a decision on the merits.
Also illustrative of the applicant's attempt to impose a higher burden than required on the State for admiasibility of its contentions is found in the applicant's response to the State's Amended Contention 5.
The applicant claims that "the NRC has no obligation to explore i
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alternatives unless they are environmentally sroerior."
It then argues that on a factual basis none of the alternatives suggested by the State is environmentally superior.
Again, we submit that the applicant is fully aware of the substance of our contention and the evidence which might be used to support or rebut the con-tention.
Whether the applicant agrees or disagrees with the substance of the contention is not the legal basis for determining admissibility of contentions.
Conclusion Based on the new filing of October 5, 1981 by Maine Yankee, the October 13, 1981 response to the State's contentions by the applicant, and existing law, petitioner State of Maine requents the Board to order a Notice and Order Scheduling Prehearing Con-ference, similar in nature to the one issued by the Board on June 22, 1981, establishing (.1) a date by which petitioners may submit contentions based on the July 28, 1981 and October 5, 1981 applica-tions by Maine Yankee for 10.25 center-to-center spacing and (2) a date on which the Board will conduct a prehearing conference in Wiscasset, Maine to consider all petitions filed for leave to intervene and to permit identification of the issues in this proceeding.
Respectfully submitted, s3
. Slek p
{cL c..m PHILIP AHRENS ut ~'
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'torney General f
I RUF OS E.
BROWN Deputy Attorney General StNte House - Station 6 Augusta, Maine 04333 k
Telephone No.:
(207) 289-3661
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CERTIFICATE OF SERVICE The undersigned hereby certifies that on October 26, 1981, he made service of the within document by mailing a copy postage prepaid to:
Robert M.
Lazo, Chairman Atomic Safety and Licensing Board U. S.
Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Cadet H.
Hand, Jr.
Director, Bodega Marine Laboratory University of California P. O. Box 247 Bodega Bay, California 94923 Dr. Peter A. Morris Atomic Safety and Licensing Board U.
S.
Nuclear Regulatory Commission Washington, D.C.
20555 Office of the Executive Legal Director U.
S. Nuclear Regulatory Commission Washington,
D.C.
20555 Henry J. McGurren Staff Counsel U.
S.
Nuclear Regulatory Commission Washington, D.C.
20555 Thomas G.
Dignan, Jr.
R.
K.
Gad, III Ropes and Gray 225 Franklin Street Boston, Massachusetts 02110 David Santee Miller 213 Morgan Street, N. W.
Washington, D.C.
20001 David Colton-Manheim Box 386, Bedford's Barn Gouldsboro, Maine 04607 John H.
Garrity, Director Nuclear Engineering & Licensing Maine Yankee Atomic Power Company Edison Drive Augusta, Maire 04336
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PHILIP AHRENS
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Assistant Attorney General State House - Station 6 Augusta, Maine 04333 Telephone No.:
(207) 289-3661