ML20033A917
| ML20033A917 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 11/25/1981 |
| From: | Bachmann R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8111300158 | |
| Download: ML20033A917 (12) | |
Text
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,C UNITED STATES OF Al1 ERICA Y/
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j>S filELEAR REGULATORY C0t1 MISSION t
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BEFORE THE AT0l11C SAFETY AllD L P
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In the Matter of
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(
CONSUMERS POWER COMPANY
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Docket No. 50-1 VP O,x
)
(Spent Fuel Pool i
(Big Rock Point Plant)
)
NRC STAFF RESP 0iiSE TO MOTION TO Af1EllD O'flEILL _C0tiTErlTION NO. II.D I.
INTRODUCTION On November 5,1981, Intervenors Christa-Maria, et al., served on the Licensing Board and the parties "Intervenors Christa-flaria, et al: Motion to Amend Admitted O'fieill Contcntion II.D" (hereafter "Motigo"). The Motion sought to amend Contention No.11.0 of Intervenor John O'Neill, which addressed the results of a breach of containment due to the crash of a B-52 bomber. The amendment proposed by Christa-Maria, et al., would sub-stitute for the B-52 bomber the possible crash of a " military, para-military, commercial, or private aircraft." Motion at 2.
The basis for the amend-ment is Licensee's internal memorandum, dated July 23, 1981, entitled "0hio Air National Guard - Flyover of Big Rock Point Plant," which was attached to Licensee's motion for summary disposition dated and filed October 5,1981.E For the reasons discussed below, the Staff believes:
(1) if the Motion is viewed as an effort to amend another party's contention, it is procedurally defective and (2) if the Motion is viewed as a late-filed contention, it must be denied as nontimely and for failure to state an admissible contention.
E n their 110 tion, Intervenors inaccurately refer to a filing date of I
October 25, 1981.
C : I:- Ai) CGIGi:IAL 8111300158 811125 Certifica By
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PDR ADOCK 05000155 0
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-2 II. DISCUSSION A.
Intervenors' I40 tion To Amend The Contention Of Another Intervenor Is Procedurally Defective In their llotion, Christa-liaria, et_ al., have moved the Board to amend 0'lieill Contention No. II.D to read:
"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 result of the breach of containment due to the crash of a military, para-military, commercial, or private aircraft."
In Northern States Power Company (Prairie Island fluclear Generating Plint, Units 1 and 2), ALAB-244, 8 AEC 857 (1974), the Appeal Board, while discussing the right of an intervenor to cross-examine on matters not encompassed by that intervenor's contentions, noted:
To avoid possible misunderstanding, it should be stressed that we do not hold here that an irtervenor may adduce affirmative evidence (or do anything 9: Uuring the course of the hearing other than conduct cross-examination) with regard to an issue placed in contest by another party. On such an issue, in order to do more than engage in cross-examination of the witnesses called by other parties, the intervenor must seek and obtain leave of the Licensing Board to amend his intervention petition to assert the issue on his own behalf.
Leave to amend should be freely given if the Board is satisfied that (1) the inter-venor has shown good cause for his failure to have raised the issue at an earlier point; and (2) allowance of the amendment may assist the board in the proper resolution of the issue without occassioning unwarranted delay. ALAB-244, n.17 at 869.
It is clear that the Intervenors' request to amend O'Neill's contention falls within the Appeal Board's concept of "anything else during the course of the hearing." The riotion is procedurally defective and should, therefore, be denied.
l l
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{
. B.
Intervenors' Motion, If Viewed As A Motion To Add An Additional Contention, Should Be Denied 1.
Intervenors Have Not Het The Tests For A Late-Filed Petition As noted above, the only way Intervenors could raise the issue of Ohio Air National Guard fly-overs at Big Rock Point would be to amend.
their intervention petition to set forth this late-filed contention.
Though Intervenors have not attempted to amend their own petition, the Board may view Intervenors' pleading as such an amendment. As admitted by Christa-Maria, ed. al., the Motion must meet the requirements of the five-factor balancing test of 10 C.F.R. s 2.714.
Motion at 3.
These factors are:
(i)
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 participation may 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, and (v)
The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
a.
The Intervenors have stated as good cause for the late-filing of this proposed contention that the July 23, 1981 memorandum regarding the fly-over by the Onio Air National Guard did not become available to them until it was submitted as an attachment to Licensee's motion for summary disposition dated October 5,1981. Motion at 3-4.
The fly-over by the l
Ohio Air National Guard does not constitute good cause for Christa-Maria, ed. al., waiting until this late stage of the proceeding to raise the issue of the hazard to the facility from an aircraft crashing into it. This
. issue, albeit with the identification of a different aircraft, was raised by O'Neill at the beginning cf this proceeding and Christa-Maria, g al., could have sought to participate on this issue at that time.
The identification of another type of aircraft, ona flown by the Ohio Air National Guard rather than a 3-52 bomber, is not new infonnation which constitutes good caase for an Intervenor's failure to have raised the issue at an earlier point.
In addition, consideration of the hazard to the facility from the crash of the B-52 bomber, as one of the largest aircraft currently flying, would encompass the hazard of an aircraft flown by the Ohio Air National Guard.
b.
With regard to other means whereby their interest will be protected, the Intervenors state that only a contention specifically addressing this issue will provide that protection. On the contrary, they may file a request for action pursuant to 10 C.F.R. 9 2.206.
This approach would be especially applicable here, where the issue sought to be raised concerns the safety of the entire facility, and is not specifically directed to the spent fuel pool. This factor weighs against the Intervenors.
c.
The extent to which the Irte.rygnors may reasonably be expected to assist in developing a sou;.d record is not even addressed in the Motion. Other than stating that the issue should be considered, the Inter-venors have provided the Board with not a single reason why they could ccatribute to the record. This factor does not support the Intervenors' filing.
d.
As stated in their Motion, the Intervenors' interest in this issue will not be represented by existing parties, to the extent that the issue of fly-overs of the Ohio Air National Guard has not been raised in a contention.
I1
1
. Since the Licensee provided the Board and parties with the July 23, 1981 memorandum and discussed it in its October 5,1981 motion for summary disposition, it is obvious that the Staff and Licensee are aware of the potential problem, and the Staff will certainly require assurance that the health and safety of the public will not be endangered. This factor may provide some support for Intervenors' filing.
e.
The issue of fly-overs of the Ohio Air National Guard will broaden the issues now in contention. As a result, there will be a certain delay in the proceeding. The Intervenors assert that the issue will be broadened only slightly and the proposed amendment will cause no substantial delay.
The addition of another contenticn, even if within the scope of an admitted contention, has the potential to cause some delay although the Staff cannot now say if it would substantially delay the proceeding. This factor weighs slightly against the Intervenors' filing.
The Staff has concluded that, in applying the five-factor balancing test of 10 C.F.R. 5 2.714(a)(1) to Intervenors' Motion, facter (iv) tends to support the Motion, factors (1), (ii), (iii) and (v) do not support the Motion. When a party has not made a substantial showing of good cause for failure to file on time, the party's demonstration on factors (ii) through (v) need to be particularly strong. See, Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977).
Therefore, the Staf f believes that the Intervenors have not met the requirements of 10 C.F.R. @ 2.714 for the filing of a nontimely petition.
2.
Intervenors Have Not Set Forth The Basis For A Proposed Contention With Reasonable Specificity As a general matter, in order for proposed contentions to be found admissible, they must fall within the scope of the issues set forth in the
. Notice of Hearing initiating the proceeding (Public Service Cmpany of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-613, 3 HRC 167,170-71 (1976)), and comply with the require-ments of 10 C.F.R. 6 2.714(b) and applicable Commission case law. See, e.g., Duquesne Light Co. (Beaver Valley, Units 'lo.1), ALAB-109, 6 AEC 243, 245 (1973); Horthern States Power Co. (Prairie Island, Unit Nos.1 and 2),
ALAB-107, 6 AEC 188,194 (1973), aff'd, BTI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir.1974).
10 C.F.R. 6 2.714(b) requires that a list of contentions which petitioners seek to have litigated be filed along with the bases for those contentions set forth with reasonable specificity.
A contention must be rejected where:
(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (c) it is nothing more than a generalization regarding the inter-venor's views of what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (e) it seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
The purpose of the basis requirement of 10 C.F.R. 6 2.714 is to assure that the contention in question does not suffer from any of the infimities listed above, to establish sufficient foundation for the contention to warrant further inquiry of the subject matter in the proceeding, and to put the other parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose." Peach Bottom,
. supra at 20. From the standpoint of basis, it is unnecessary for the peti-tion "to detail the evidence which will be offered in support of each con-tention." Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973). However, the degree of specificity with which the basis for a contention must be alleged involves the Board's judgnent on a case-by-case basis. Peach Bottom, supra at 20.
Finally, in examining the contentions and the bases therefor, a licensing board is not to reach the merits of the contentions. Duke Power Co. (Amendment to 11aterials License Snit-1773 - Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979); Peach B ottom, supra at 426.
Where, as here, a proceeding involves a proposed license amendment to allow nodification of a spent fuel pool, the Licensing Board may only consider matters relevant to that modification. A proceeding to consider a proposal to modify spent fuel pool operations is not a vehicle to ques-tion continued operations under the fomerly granted operating license.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46 n. 4 (1976); Portland General Electric Co_.
(Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 266 n. 6 (1979); Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 and 2),
ALAB-584,11 NRC 451, 463-465 (1980); Public Service Electric & Gas Co.
(Salea Nuclear Generating Station, Units 1), ALAB-650,14 NRC 43 (1981).
Operations of the facility as a whole, in contrast to matters that will be affected by the proposed license amendment, may not be looked at.
Id.
Thus no possible accident may be looked at unless some credible basis is i
shown to conclude that the likelihood or consequences of such accident
s could be changed by the proposed amendment. See, Commonwealth Edison Co.
(Zion Station, Units 1 cad 2), ALAB-616,12 NRC 419, 426 (1980); Salem, supra at 34-35.
In their Motion, the Intervenors have stated no basis for a new contention.
Evaluation of the adequacy of basis in the context of this proceeding should be distinguished from the situation normally encountered at the early stages of a proceeding where the availability of documenta-tion is more limited.
See, Houston Lighting & Power Co. (Allens Creek 1
Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 548 (1980),
where initial contentions need only identify the reasons for the conten-tion.
Here all the pertinent evaluation documents and extensive discovery 1
have been made available to Intervenors. Generalized allegations are clearly insufficient and Intervenors are required to come forward with specific factual basis for any late-filed contention. Cf. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-654, NRC (September 11,1981) (intervenors required to make a stronger showing of basis for their contentions in order to gain an evidentiary hearing on the health effects of radon emissions).
The Intervenors have, for their basis, relied upon the July 23, 1981 memorandum. This memorandum deals solely with a one-time fly-over by a group of planes belonging to the Ohio Air National Guard.
It does not pro-vide any basis for the assertion that flights of any other type of aircraft (e.g. Other military, para-military, conmercial or private aircraft) should be considered.
They have not even alleged, much less provided, any factual support for any connection between the Ohio Air National Guard fly-over and the modification of the spent fuel pool which would endanger the health
.m_
,n m
.. and safety of the public.
Even reading into the contention the fiaplication that the fly-over, per se, constitutes a safety hazard to the plant, the Staff maintains its position, stated in the special prehearing conference of Decemoer 5,1979, that this proceeding is nct the forum to deal with the general consihrstion of the effects of an aircraft accident. Tr. at 153.
The Staff believes that the Intervenors have not set forth the basis for their contention with reasonable specificity as required by 10 C.F.R. 9 2.714(b), and their Motion should be dente:.
III. C0iCLUSIO!1 The Staff believes that:
1.
Christa-Maria, et_ al., should not be permitted to amend O'fieill Contention No. II.D, but must amend their own petition to raise a nontimely contention.
2.
Treating the Motion as an attempt to file a nontirrely contention, a balancing of the five factors of 10 C.F.R. 9 2.714 weighs against pemitting the nontimely filing.
3.
Christa-Maria, et al., have not set forth the basis for a new contention with reasonable specificity.
For the above, reasons, Intervenors' Motion should be denied.
Respectfully submitted, Richard G. Bachmann Counsel for NRC Staff Dated at Bethesda, Maryland this 25th day of November,1981
r.
UNITED STATES OF A!1 ERICA NUCLEAR REGULATORY C0!!MISSIOl4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
C0145UMERS POWER C0tlPA!4Y
)
Docket No. 50-155
)
(Spent Fuel Pool Modification)
(Big Rock Point Plant)
)
[10TICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned proceeding.
In accordance with 10 C.F.R. 9 2.713(a), the following information is provided:
Name:
Richard G. Bachmann Address:
U.S. Iluclear Regulatory Commission Office of the Executive Legal Director Washington, DC 20555 Telephone Number:
(301) 492-7290 Admissions:
Supreme Court of California Name of Party:
NRC Staff U.S. Nuclear Regulatory Commission Respectfully submitted, C
~
Richard G. Bachme:in Counsel for NR Staff Dated at Bethesda, Maryland this 25th day of November,1981.
.o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMilSSION EEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Patter of
)
)
CONSUMERS POWER COMPANY
)
Docket No. 50-155
)
i (Big Rock Point Plant)
)
(Spent Fuel Pool Modification)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION TO AMEND 0'NEILL CONTENTION N0. II.D" and " NOTICE OF APPEARANCE" for Richard G. Bachmann in above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 25th aay of November, 1981:
']
Herbert Grossman, Esq., Chairman Joseph Gallo, Esq.
Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board 1120 Connecticut Ave, N.W., #325 U.S. Nuclear Regulatory Comission Washington, D. C.
20036 Washington, D.C.
20555
- John A. Leithauser Dr. Oscar H.. Paris Leithauser and Leithau',er, P.C.
Administrative Judge Opal Plaza, Suite 212 Atomic Safety and Licensing Board 18301 Eight Mile Road U.S. Nuclear Regulatory Commission East Detroit, MI 48021 Washington, D.C.
20555
- John O'Neill, II Mr. Frederick J. Shon Route 2. Box 44 Administrative Judge Maple City, Michigan 49664 Atomic Safety and Lit.ensing Board U.S. Nuclear Regulatory Commission Christa-Maria Washington, D.C.
20555
- Route 2, Box 108c Charlevoix, MI 49720 Philip P. Steptoe, Esq.
Michael I. Miller, Esq.
Ms. JoAnne Bier Isham, Lincoln & Beale 204 Clinton One First National Plaza Charlevoix, MI 49720 Suite 4200 Chicago, Illinois 60603
.-.,v-.
..
- Atomic Safety and Licensing Mr. Thomas Dammann Appeal Board Panel Route 3, Box 241 U..S. Nuclear Regulatory Commission Charlevoix, MI 49720 Washington, D. C.
20555 Judd L. Bacon, Esq.
- Atomic Safety and Licensing Consumers Power Co.
Board Panel 212 West Michigan Avanue U.S. Nuclear Regulatory Commission Jackson, MI 49201 Washington, D. C.
20555 Mr. Gordon Howie
- Docketing and Service Section 411 Pine U.S. Nuclear Regulatory Commission Boyne City, MI 49712 Washington, D. C.
20555 Mr. Jim Mills Herbert Semmel, Esq.
Route 2, Box 108 Urban Law Institute of Charlevoix, MI 49720 The Antioch School of Law 1624 Crescent Place, N.W.
Washington, D. C.
20009 Richard G. Bachmann Counsel for NRC Staff 4
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