ML20038C162

Response Opposing Christa-Maria 811204 Motion for Indefinite Extension of Time to Respond to Licensee & NRC Motions for Summary Dispostion.Time to Respond Already Extended & Contentions Insubstantial.Certificate of Svc Encl

ML20038C162
Person / Time
Site:	Palisades
Issue date:	12/08/1981
From:	Gallo J, Thornton P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OLA, NUDOCS 8112100182
Download: ML20038C162 (8)

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FORE THE ATOMIC SAFETY 4 AND LICENSING B IN THE MATTER OF )

) Docket No. 50-255 OLA CONSUMERS POWER COMPANY ) (Spent Fuel Pool

) Modification)

(Big Rock Point Nuclear Power Plant) )

CONSUMERS POWER COMPANY'S RESPONSE TO MOTION TO EXTEND TIME FOR FILING- RESPONSE TO MOTIONS FOR

SUMMARY

DISPOSITION ON CERTAIN CONTENTIONS On December 4, 1981, Intervenors Christa-Maria, Mills, and Bier ("Intervenors") filed a motion requesting an indefinite extension of time within which to respond to the motions for summary disposition made by Licensee and the NRC Staff with respect to Christa-Maria Contention 2 and O'Neill Contention IIA, and with respect to Christa-Maria Contention 8 and O 'Neill Contention IIIE-2. For the reasons given below, Intervenors' request should be denied.

Intervenors' Motion is the latest in a series of motions seeking to defer responses to the motions for summary disposition filed by Consumers Power Company (" Licensee") and the NRC Staff. Originally Intervenors were required to file such responses by October 26, 1981. On October 20, 1981, Intervenors moved the Licensing Board to defer their 8112100182 811208 9 PDR ADOCK 05000255 G PDR Ni 60 f

responses to summary disposition motions until Licensee had complied with certain contested discovery requests; in the alternative, Intervenors requested an extension to November 20, 1981. On October 26, 1981 the Licensing Board granted Intervenors an extension until November 20, 1981. On Novem-ber 18, 1981, Intervenors renewed their motion to defer their responses to summary disposition motions until the resolution of contested discovery requests. By Order of November 20, 1981, the Licensing Board denied Intervenors' motion but granted them until December 11, 1981 to respond to the outstanding motions for summary disposition. Licensee did not object to the two extensions, amounting to some seven weeks in all, which have been granted by the Licensing Board. Licensee must object strenuously, however, to this latest attempt by Intervenors to evade their responsibilities as parties to this proceeding. Intervenors are now asking the Board for an extension of indefinite length premised on the vague hope that they may be able to respond at a future date.

As grounds for their motion, Intervenors state that two " potential witnesses" have " expressed a willingness" to examine the designated contentions and the filings in this proceeding relating to them "with the purpose of deter-mining an appropriate response." Although Intervenors

refer to the preparation of " appropriate statements" by the

" potential witnesses," they do not state, either in the motion or in the attached affidavit, that the two persons have agreed to do anything more than examine the contentions and related materials. Neither the motion nor the attached affidavit gives grounds for believing that either person will produce an affidavit setting forth specific facts showing that genuine issues of fact exist, as 10 C.F.R. S 2.749 requires here. Furthermore, Intervenors do not request any definite time period for their extension. They state only that the " potential witnesses" will complete their review "probably by January 15, 1982." This date would represent a third deferral of over four weeks. Intervenors do not ask for an extension to this date, however; their request is open-ended. The grant of an indefinite extension premised on such vague hopes, particularly in view of the lengthy extensions already granted, would be unconscionable.

In order to compensate for the insubstantiality of the grounds for their motion, Intervenors emphasize what they regard as the importance of the health and safety con-I cerns raised by the contentions which are the subject of the motions for summary disposition. They argue, in effect, i

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that because of the importance of these health and safety issues, the schedule of this proceeding should be revised continually to suit their convenience. However, Inter-venors' unsupported allegation that serious health and safety questions exist is legally insufficient as a response to a motion for summary disposition supported by affidavits such as Licensee has filed. 10 C.F.R. S 2.749. If such un-supported allegations are allowed to serve as the ground for indefinite deferrals of Intervenors' response to summary disposition motions, Intervenors will be enabled to make an end run around the rules of practice and the purpose of summary disposition will be defeated.

Furthermore, in an attempt to create a factitious impression that a serious health and safety question exists, Intervenors have made factual allegations that are not only unsupported but erroneous and irresponsible. Intervenors state several times that "the south wall (of the spent fuel pool] is made of steel, not concrete," and they premise the seriousness of Christa-Maria Contention 2 and O'Neill Con-tention IIA on this " fact." In actuality, all fuel pool walls are made of concrete. Affidavit of Raymond F. Sacramo, dated September 28, 1981, submitted in support of Licensee's

October 5, 1981, motion for summary disposition on Christa-Maria Contention 8 and O 'Neill Contention IIIE-2. Christa-Maria Contention 2 is merely premised on the fact that the south wall tapers to a point that is thinner than the other pool walls, with a minimum thickness of 2 feet. Intervenors apparently have no understanding of their own contention.

The correct facts are available from a number of sources filed in the present proceeding, most recently from the affidavits of Charles E. Axtell, */ William H. Bell, and Roger W. Sinderman, submitted in support of Licensee's motion for summary disposition of the contentions in question.

These affidavits, moreover, demonstrate conclusively that the contentions are insubstantial; Intervenors' forebodings based on misinformation should, therefore, not be allowed to impede the orderly process of summary disposition with regard to the contentions.

• / Mr. Axtell specifically attests to the fact that (i) the thinnest portion of the concrete south wall of the spent fuel pool is 2 feet, and (ii) the thinnest por-tion of the concrete south wall near the stored spent fuel is 3.5 feet. Affidavit of Charles E. Axtell, dated October 2, 1981, p. 4, submitted in support of Licensee's October 5, 1981, motion for summary dispo-sition on Christa-Maria Contention 2 and O'Neill Con-tention IIA.

For these reasons, Intervenors' request for a further extension of time to respond to Licensee's motions for summary disposition of certain contentions should be denied.

Respectfully submitted, J h pllo,' Esquire AJk/n Peter Thornton, Esquire

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ISHAM, LINCOLN & BEALE Suite 325 1120 Connecticut Avenue, N.W.

Washington, D. C. 20036 202/833-9730 ISHAM, LINCOLN & BEALE

. Suite 4200 One First National Plaza Chicago, IL 60603 312/558-7500 Dated: December 8, 1981

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket No. 50-155-OLA CONSUMERS POWER COMPANY ) (Spent Fuel Pool

) Modification)

(Big Rock Point Nuclear Power Plant))

CERTIFICATE OF SERVICE I hereby certify that copies of CONSUMERS POWER COMPANY'S RESPONSE TO MOTION TO EXTEND TIME FOR FILING RESPONSE TO MOTIONS FOR

SUMMARY

DISPOSITION ON CERTAIN CONTENTIONS in the above-captioned proceeding was hand-delivered to Administrative Judges Grossman, Paris, and Shon on December 8, 1981, and was served on the other persons listed below by deposit in the United States mail, first-class postage prepaid, this 8th day of December, 1981.

Herbert Grossman, Esquire Atomic Safety and Licensing Administrative Judge Board Panel Atomic Safety and Licensing U. S. Nuclear Regulatory Board Panel Commission U. S. Nuclear Regulatory Washington, D. C. 20555 l Commission l Washington, D. C. 20555 Atomic Safety and Licensing l Appeal Board Panel Dr. Oscar H. Paris U. S. Nuclear Regulatory Administrative Judge Commission l Atomic Safety and Licensing Washington, D. C. 20555 Board Panel U. S. Nuclear Regulatory Docketing and Service Section l Commission Office of the Secretary Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Mr. Frederick J. Shon Washington, D. C. 20555 Administrative Judge Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555

Janice E. Moore, Esquire Judd Bacon, Esquire ~

Counsel for NRC Staff Consumers Power Company ,- -

U. S. Nuclear Regulatory 212 West Michigan Avenue z 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 - . er M r'. James Mills Maple City, Michigan'49664^ Route'2,; Box 108 Charlevoix, Michigan 49720 2

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