ML20041F810
| ML20041F810 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 03/11/1982 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203170435 | |
| Download: ML20041F810 (8) | |
Text
e 3/11/82 e
UNITED STATES OF AMERICA 3
NUCLEAR REGULATORY COMMISSION ggCUI'/ED
_BEFORE THE AT0f1IC SAFETY AND LICENSING BOARD E
/rf/Jgy 7198gs,
- g e
1 In the Matter of
)
N CONSUf1ERS POWER COMPANY Docket No. 50-155 g
y (Big Rock Point Plant)
)
(Spent Fuel Pool Modification)
NRC STAFF RESPONSE TO LICENSEE'S MOTIONS TO STRIKE AND TO DISMISS CHRISTA-ftARIA CONTENTION 9 I.
INTRODUCTION On February 19, 1982, Licensee filed a motion to strike the testimony of Christa-Maria, Jim Mills, Joanne Bier, Shirley Johns and John O'Neill which was filed on January 26, 1982. Licensee also moved for dismissal of Christa-tiaria Contention 9.
For the reasons set forth below, the Staff supports both of Licensee's motions.
II. BACKGROUND As one of their original contentions Intervenors Christa-Maria, et al.
(Intervenors) filed a contention concerning emergency planning.1/ At the 1/ This contention stated:
The events at Tt11-2 s;iowed the inadequacy of NRC emergency planning requirements. Emergency planning beyond the LPZ is a recognition of the residual risk associated with major reactor accidents whose consequences could exceed those I
associated with so-called design basis events.
In the con-text of spent fuel pool expansion, emergency planning must be based on a worst case analysis of potential accident l
consequences related to the spent fuel pool.
In particular, l
it must take into account the significant increase in radi-l active spent fuel that will be stored at the plant if this l
License Amendment is granted.
LESIGNATED,0RIGINAL Certified By l
8203170435 820311 DR ADOCK 05000 g
a,
special prehearing conference held on December 5, 1979, as well as in its response to that original contention, the Staff argued that the contention was a challenge to the Comission's emergency planning regulations and, as such, was outside the scope of this spent fuel pool capacity expansion proceeding. Tr.105; NRC Staff Response to Contentions of Christa-Maria and to Contentions of John P. O'Neill, II (November 29,1979)at12-13.
At the conference the Board reworded the contention as follows:
I would like the Staff and applicant to address the con-tention framed as it now is, that is, the expansion of the fuel pool requires some change in the emergency plan, with the understanding that the intervenor would present some evidence as to what that change might be.
When asked for its views on the contention, the Staff counsel stated that more specificity was needed with regard to the particular changes which were of concern to Intervenors before the commencement of the proceeding.
Tr 116-117.
In its Order Following Special Prehearing Conference the Board adopted the Staff's view and accepted Christa-Maria Contention 9 as reworded by the Board "with the proviso" that Intervenors specify the changes required by the expansion. Consumers Power Company (Big Rock PointNuclearPlant,LBP-80-4,11NRC117,126(1980).E Intervenors 1
U The accepted contention states:
The expansion of the spent fuel pool requires a change in the emergency plan to take into account the significant increase in radioactive spent fuel that will be stored at the site.
i l
l
conducted extensive discovery of the Licensee in the area of emergency planning. Christa-Maria, Et Al., Interrogatories to Consumers Power Company (Set I) (January 31,1980); Christa-Maria, Et A1., Interrogatories to Consumers Power Company (Set II) (June 26,1980). However, nothing was heard from Intervenors' counsel regarding the further specification of this contention.
Then on January 26, 1982, a document was filed by Intervenors entitled
" Testimony of Christa-Maria, Joanne Bier, Jim Mills, Shirley John, and John O'Neill" (hereinafter Intervenors Testimony). Licensee has now moved to strike that document as irrelevant to a matter in controversy in this proceeding.
Licensee has also moved this tuard to dismiss Christa-Maria Contention 9 on the ground that Intervenors have not provided the speci-ficity required by the Board's Order Following Special Prehearing Con-ference. 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 (February 19,1982).
III. DISCUSSION A.
The Testimony in Question should be Striken as Irrelevant to any Matter in Controversy in this Proceeding It is quite clear from the Board's Order Following Special Prehearing Conference that the Board was only conditionally accepting Christa-Maria l
Contention 9.
The Board was giving Intervenors an opportunity to gain more information about the Big Rock Point emergency plan. However, the Board was requiring something in return. The Board made it imperative l
l
that before the hearing, Intervenors provide the specificity necessary to put the parties on notice as to what they must oppose or defend against.
See LPB-80-4, supra at 126. Such specificity is required by Commission precedent. Philadelphia Electric Co. (Peach Botton Atomic Power Station, Units 2 and 3), ALAB-216, 8 NRC 13, 20-21 (1974).
The words of the Board's order suggest that, entil such specificity is provided, the contention should not be assumed to be a matter in con-troversy in this proceeding. The mere existence of the Board's proviso gives rise to the implication that further action is necessary before Contention 9 could be litigated in this proceeding.
Intervenors' counsel never provided the specificity required by the Board. Now they appear to be attempting to circumvent the requirement by filing what they call " testimony" on Contention 9.
Such testimony is premature at best, and is, in fact, irrelevant to any of the contentions set for hearing in this proceeding. Therefore, it should be striken at this time.
B.
Contention 9 Should be Dismissed Even if this testimony is treated as an attempt by Intervenors to comply with the Board's order as to specificity, it fails in that attempt.
The whole thrust of the Board's order with respect to Contention 9 was to allow discovery in the area of emergency planning in order that the contention could be made more specific. This would mean that Intervenors should refer to particular provisions of the Big rock emergency plan, or
~
0-1 to particular assumptions used in the formulation of the Big Rock plan and demonstrate that a change is necessary in these provisions or assump-tions to account for the increased fuel to be stored on site.
Intervenors have not even attempted to provide this specificity.
Intervenors do not allege the factual basis for their belief, as stated in their testimony, that the Big Rock emergency plan is inadequate in that the plan has failed to take account of the increase in stored fuel which would be permitted by this license amendment. See Intervenors Testimony at 4-6.
They point to no statements in the plan which would show such an inadequacy. They merely reiterate their general view that the plan is inadequate.
Intervenors discuss the emergency planning zone used for Big Rock at some length. See'Intervenors Testimony at 4.
Itowever, they do not indicate why it would be necessary to change that zone due to the proposed expansion. They do not point to any assumption used in determining the Big Rock emergency planning zone which is rendered inaccurate because of the expansion. Their concerns appear to be with the plan in general and, as such, are outside the limited scope of this proceeding.
Intervenors' testimony fails to put the parties on notice as to the relationship between the present emergency plan and changes required by the proposed expansion as would be required by both Peach Bottom, supra, and LSP-80-4, supra. Since Intervenors ha.ve failed to meet their burdea with respect to this contention, it should be dismissed.
. t IV. CONCLUSION For the reasons set forth above, the Staff supports Licensee's motion to strike the testimony of Christa-Maria, Jim Mills, Joanne Bier, Shirley Johns and John O'Neill. The Staff also supports Licensee's motion to dis-
]
miss Christa-Maria Contention 9.
Respectfully submitted, 1
D DL/ kk Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this lith day of March, 1982 O
1 J
UtilTED STATES OF AMERICA NUCLEAR REGULATORY C0HilSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
CONSUMERS POWER COMPANY Docket No. 50-155
)
(Big Rock Point Plant)
)
(Spent Fuel Pool' Modification)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO LICENSEE!S MOTIONS TO STRIKE AND.TO DISMISS.CHRISTA-MARIA CONTENTION 9 in the 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 lith day of March, 1982.
Peter B. Bloch, Chair. man.-
Joseph Gallo, Esq.
Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board 1120 Connecticut Ave,.H.W., #325 U.S. Nuclear Regulatory Commission Washington, D. C.
20036 Washington, D.C.
20555
- John A. Leithauser l
Dr. Oscar H.. Paris Leithauser and Leithauser, 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 Licensing 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
- Atomic Safety and Licensing Mr. Thomas Damnann 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.
i Board Panel 212 West Michigan Avenue 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 O
Oi)L_/t R E. AOIY/.I'V_
Janice E. Moore i
Counsel for NRC Staff l
l l
-, - - -