ML20041B585
| ML20041B585 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 02/19/1982 |
| From: | Gallo J, Thornton P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8202240313 | |
| Download: ML20041B585 (12) | |
Text
.
t
.W Ohh55 8
NNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '82 FEg 22 NO MS 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) 99 q
MOTION OF CONSUMERS POWER COMPANY TO ST E N'
D /g
)
" TESTIMONY OF CHRISTA-MARIA, JOANNE BIE l
JIM MILLS, SHIRLEY JOHN, AND JOHN O'NEI]q c
j
[7 AS TESTIMONY AND TO DISMISS
-4 CHRISTA-MARIA CONTENTION 9 6,
.E N,
g On January 26, 1982, Intervenors Christa-Mari q,f IIx, \\\\m Joanne Bier and Jim Mills ("Intervenors") filed a document styled " Testimony of Christa-Maria, Joanne Bier, Jim Mills, a
Shirley John, and John O'Neill," which purports to be tes-timony in support of Intervenors' position on Christa-Maria Contention 9.
That contention, however, has not been admitted in this proceeding for the purpose of litigation on the merits.
The proposed testimony, when offered, is therefore irrelevant and cannot be admitted.
Consumers Power Company
(" Licensee") suggests that the pleading be construed as an attempt by Intervenors to supply basis and specificity for Christa-Maria Contention 9, which has been admitted only for discovery purposes; because the document fails to supply the requisite basis and specificity, Licensee moves that Contention 9 be dismissed.
3503 s
//
8202240313 BPeE19 PDR ADOCK 05.10,155 G
I.
Christa-Maria ~ Contention 9 Has Been Admittcd Only For Purposes Of Discovery As originally submitted, Christa-Maria Contention 9, although it contained a reference to the spent fuel pool i
expansion, was in reality a general challenge to the adequacy of the~ Big Rock Point emergency plan in light of the events at TMI-2.~1/ Licensee argued that the Licensing Board's jurisdication was limited to issues associated with the ex-pansion of the spent fuel pool, and that the contention was inadmissible because it improperly sought to make the Board reexamine NRC policy on emergency planning and its implementa-tion at Big Rock Point.~2/
The NRC Staff similarly argued that the contention was outside the scope of this proceeding because it constituted a general attack on the Commission's emergency planning regulations. ~3/
Both Licensee and the 1/
In its original form, Contention 9 stated:
The events of TMI-2 showed the inadequacy of NRC emergency planning requirements.
Emergency plan-ning beyond the EPZ is a recognition of the residual risk associated with major reactor accidents whose consequences could exceed those associated with so-called design basis events.
In the context of spent fuel pool expansion, emergency planning must be based on a worst case analysis of potential accident consequences related to the spent fuel pool.
In particular, it must take into account the significant increase in radioactive spent fuel that will be stored at the plant if this License Amendment is granted.
Contentions Of Christa-Maria, October 30, 1979.
f 2/
Licensee's Response To Contentions Of Christa-Maria, November 29, 1979.
3/
NRC Staff Response To Contentions Of Christa-Maria And To Contentions Of John P. O'Neill, II, November 29, 1979.
. ~., _ _,. _ _
- -D Staff pointed out that the Commission was then reviewing its emergency preparedness policy on a generic basis, which made the inappropriateness of considering this issue in a spent fuel pool expansion proceeding all the more obvious.
At the Special Prehearing Conference, reiteration of these objections by Licensee and the Staff caused counsel for Christa-Maria to narrow the scope of the contention (Tr.
113), after which Administrative Judge Shon restated the i
contention as follows:
I would like the staff and the applicant to address the contention framed as it now is; that is, that the expansion of the-fuel pool requires some change in the emergency plans, with the understanding that the intervenor would present I
some evidence as to what that change might be.
Tr. 114.
Licensee stipulated that the restated contention would be acceptable provided Intervenors bore the burden of adducing evidence to show what the inadequacy in the Big Rock Point emergency plan is; Mr. Jordan, counsel for Christa-Maria, i
agreed.
(Tr. 116.)
The Staff further stipulated that Intervenors would have to specify before the hearing what changes in the emergency plan they were proposing.
Chairman Grossman stated:
I see.
But I take it everyone has agreed then that discovery can be had on the contention as broadly framed but at some time prior to tLa hearing, there will be some representation vade by Mr. Jordan as to exactly what's involved in this particular proceeding.
MR. JORDAN:
That's right.
We'll do that.
Tr. 117.
1
e-
---,,.27--,e
,m.
.e----,,
-er---,...---,,-.w~.,_
. - - -,.. - - ~... - -
-t...
-v---------
', In its Order Following Special Prehearing Con-ference, the Licensing Board summarized this colloquy and made it the basis of its order with respect to Contention 9:
At the conference, Christa-Maria's counsel narrowed the scope of the contention (Tr. 113) to the question of whether the proposed spent fuel pool expansion itself, because of the increase in the storage of spent fuel, requires a change in the emergency plan.
The licensee and staff (Tr.
115-117) indicated no objection to the contention as more narrowly limited at the conference for purposes of discovery, but asserted that the intervenor should have to specify before the hearing the specific changes required in the emergency plan because of the increased fuel storage.
Counsel for Christa-Maria agreed.
(Tr.
117.)
Accordingly, with that proviso, requiring more specificity before hearing, the Board accepts the contention reworded as follows:
The expansion of the spent fuel pool requires a change in the emergency plan to take into account the significant increase in radio-active spent fuel that will be stored at the site.
Order Following Special Prehearing Conference, January 18, 1980, at 19-20.
The status of Christa-Maria Contention 9 remains unchanged to this day.
It has been accepted for purposes of discovery, but it has not been admitted as an issue for litigation in this proceeding.
It cannot be so admitted unless and until it meets the specificity and basis re-quirements of 10 C.F.R. S2.714.
II.
Intervenors' Testimony Cannot Be Admitted As Testimony.
Because Christa-Maria Contention 9 has not been admitted by the Licensing Board as an issue in this proceed-ing, any testimony regarding the contention is irrelevant and cannot be admitted.
Evidence not relevant to an issue in litigation is properly excluded by a licensing board.
Commonwealth Edison Company (Zion Station, Units 1 and 2),
ALAB-616, 12 NRC 419, 426-27 (1980).
Licensee therefore moves that the " Testimony of Christa-Maria, Joanne Bier, Jim Mills, Shirley John, and John O'Neill" be stricken by the Board as testimony.
III. Intervenors' Pleading Fails To Supply the Basis and Specificity Necessary To Have Contention 9 Admitted As An Issue In This Proceeding.
If Intervenors' pleading be construed as an attempt to supply the requisite basis and specificity for Christa-Maria Contention 9, it is insufficient.
Careful perusal of this diffuse and rambling document fails to disclose any attempt whatever to specify the kind of change in the Big Rock Point emergency plan that might be required by the increased number of fuel assemblies proposed to be stored in the spent fuel pool.
Similarly, no factual basis is given for believing that pool expansion will render the present
w,
emergency plan inadequate in any respect, thus necessitating such a change.
The document therefore fails to fulfill the commitment undertaken by counsel for Christa-Maria at the Special Prehearing Conference.
Accordingly, Christa-Maria Contention 9 is deficient and must be dismissed.
The longest section of Intervenors' document (Point F, pages 8-9) simply argues once again that the emergency plan for the Big l ock Point facility is _ currently inadequate in various respects in view of the accident at TMI-2.
Such an argument is irrelevant to the restated contention.
It simply returns to the original version of the contention by attacking the general adequacy of the current emergency plan.
Such an issue is outside Lne scope of the proceedings.
In Commonwealth Edison Company (Zion Station, Units 1 and i
i 2), ALAB-616, 12 NRC 419 (1980), the Appeal Board approved the Licensing Board's exclusion of similar testimony in a spent fuel pool expansion proceeding on just that ground.-4/
-4/
As the Board correctly perceived, its jurisdiction was limited by the Commission's notice of hearing.
That jursidiction extended only to issues fairly raised by the application to modify the spent fuel pool, the sole matter which the Commission had placed before it.
This was why Board Question 4 (b) was drawn narrowly and sought evidence only about whether the Zion facility's emergency plan needed to be changed as a result of the proposed modification of the spent fuel pool and the proposed operation of the Station with increased spent i
(continued on next page) i
_7_
Another section of Intervenors' document (Point C, page 4) addresses the reduction in size of the Big Rock Point Emergency Planning Zone (EPZ) approved by the Staff in 1980 pursuant to Appendix E to Part 50 of the Commission's regulations, which states that the size of EPZs may be determined on a case by case basis for reactors with an authorized power level less than 250 MW thermal.
(See letter to David P. Hoffman from Dennis M. Crutchfield, dated November 20, 1981.)
Intervenors argue that this reduction was an error because, they assert, the Big Rock Point plant has a higher potential for hazard than other facilities with power levels of less than 250 MW.
Part of another section (Point D, page 5) returns to this argument, asserting that, in particular, the presence of plutonium in the fuel mix used at Big Rock Point makes the reduction of the EPZ im-prudent.
Intervenors' arguments about the Director's Decision under Appendix E are quite clearly outside the scope of this proceeding.
They merely constitute additional attempts to challenge the general adequacy of the Big Rock Point emergency plan.
If Intervenors are genuinely concerned about the (continued from preceding page)
-4/
fuel storage capacity.
The Board was not empowered to reconsider whether the Zion facility should have been licensed to operate in the first instance, or whether the emergency plan approved in conjunction with that license was generally in need of revision.
Mr. Cleary's proposed testimony, however, addressed only those broad issues and ignored the narrow one posited by Board Question 4(b).
12 NRC at 426 (footnotes omitted).
adequacy of the emergency plan, their remedy is to address a request for action to the Director of Nuclear Reactor Regula-tion pursuant to 10 C.F.R. S2.206.
The nearest approach to an acceptable allegation in Intervenors' document can be gleaned from a combination of Points A and B and part of point D (pages 2, 3,
4-5).
In these sections Intervenors appear to assert two propositions:
(1) increase in the spent fuel inventory in the Big Rock spent fuel pool will increase the amount of radioactive materials within containment; and (2) the current emergency plan is not adequate to handle this increased radioactivity in the event that containment is breached.
These allegations are not irrelevant; they are simply inadequate.
They do no more than paraphrase the restated contention without providing any additional specificity or basis.
Intervenors do not say what features of the emergency plan must be changed nor why the increase in radioactive material resulting from the additional spent fuel assemblies will require such changes.
Intervenors offer no reason to believe that the increased radioactivity within containment to which they refer is other than insignificant for purposes of the emergency plan.
Intervenors are aware, for example, that for environ-mental purposes the Staff's Environmental Impact Appraisal found that " potential offsite radiological environmental impacts associated with the expansion of the spent fuel
storage capacity were evaluated and determined to be en-vironmentally insignificant".
(Staff EIA, May 15, 1981, Section 5.3.1.
See Intervenors' testimony at p. 7.)
More-over, Intervenors offer no reason for believing that any feature'of the present emergency plan would be rendered inadequate and require change by reason of any increase in radioactivity.
It cannot be assumed that any specific level of stored fuel or any specific accident scenario requires a change in the emergency plan:
that is what Intervenors must demonstrate.
In Commonwealth Edison Company (Zion Station, Units 1 and 2), LBP-80-7, 11 NRC 245 (1980), for example, the Licensing Board itself raised the question whether expansion of the Zion spent fuel pool would require modifica-tion of the plant's emergency plan.
After examining the emergency plan the Board concluded:
The proposed modification or subsequent operation of the Station will not require a change to the GSEP [ Generating Station Emergency Plan], since the GSEP is designed to provide an appropriate response to a continuum of possible accidents and is not predicated upon a particular amount of nuclear fuel in use or in storage at the facility, or tied to specific accidents or equipment mal-functions.
11 NRC at 285 (footnote omitted).
Thus the lack of any specificity as to the change in the emergency plan that Contention 9 asserts to be required plus the lack of any basis for alleging that any change whatever might be required render the contention fatally
_lo_
deficient.
Contention 9 was admitted for discovery to afford Intervenors an opportunity to supply the basis and specificity necessary to have the contention admitted for litigation on the merits.
The document now filed by Inter-venors fails to provide that support and the contention remains as deficient today as it was in 1979.
Because the discovery period in this proceeding has now closed and Intervenors have been unable to supply the requisite basis and specificity for their contention, Licensee moves that Christa-Maria Contention 9 be dismissed at this time.
Conclusion For the foregoing reasons, Licensee's Motion to Strike from this docket the testimony of Christa-Maria, Joanne Bier, Jim Mills, Shirley John and John O'Neill regarding Christa-Maria Contention 9 should be granted and Contention 9 should be dismissed.
Respectfully submitted,
%W)L
/PT U
os'eph G lo Peter Thornton Two of the Attorneys for l
Consumers Power Company i
ISIIAM, LINCOLN & BEALE Suite 840 1120 Connecticut Avenue, N.W.
Washington, D. C.
20036 l
(202) 833-9730 ISHAM, LINCOLN & BEALE Suite 4200 One First National Plaza l
Chicago, IL 60603 i
(312) 558-7500 l
l Dated:
February 19, 1982
[
o 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
)
Expansion)
(Big Rock Point Nuclear Power Plant) )
CERTIFICATE OF SERVICE I hereby certify that copies of MOTION OF CONSUMERS POWER COMPANY TO STRIKE " TESTIMONY OF CHRISTA-MARIA, JOANNE BIER, JIM MILLS, SHIRLEY JOHN AND JOHN O'NEILL" AS TESTIMONY AND TO DISMISS CHRISTA-MARIA CONTENTION 9 in the above-captioned proceeding were served on the following by deposit-ing in the United States mail, first-class postage prepaid, this 19th day of February, 1982.
Peter B.
Bloch, 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 Commission Washington, D.C.
20555 Dr. Oscar H.
Paris, Esquire Atomic Safety and Licensing Administrative Judge 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 Mr. Frederick J.
Shon Docketing and Service Section Administrative Judge Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 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 Commission Jackson, Michigan 49201 Washington, D.C.
20555 Herbert Semmel, Esquire Ms. Christa Maria Urban Law Institute Route 2, Bon 108C Antioch Schoo) of Law Charlevoix, Michigan 49720 2633 16th Street, N.W.
Washington, D.C.
20555 Ms. JoAnne Bier 204 Clinton Mr. John O'Neill, II Charlevoix, Michigan 49720 Route 2, Box 44 Maple City, Michigan 49664 Mr. James Mills Route 2, Box 108 Charlevoix, Michigan 49720 1
YW 1
Peter Thornton l
l l
t l