ML20042A135
| ML20042A135 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 03/19/1982 |
| From: | Semmel H ANTIOCH SCHOOL OF LAW, WASHINGTON, DC, BIER, MILLS, CHRISTA-MARIA, ET AL |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20042A136 | List: |
| References | |
| ISSUANCES-OLA, NUDOCS 8203230127 | |
| Download: ML20042A135 (5) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'82 E'19 poeg RE"0RE THE ATOMIC SAFETY AND LICENSING BOARD On the matter o.
lDocketNo. 50-155 0LA Consumers Power Company
- (Spent Fuel Pool Modification)
(Big Rock Point Nuclear Power Plant t
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HECCIVED O
INTERVENORS OPPOSITION TO LICENSEE'S 2
MARG g 2h r MOTION TO STRIKE TESTIMONY AND DISMIST nrbil7 $gh J CHRISTA-MARIA CONTENTION NO. 9
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IG I.
Christa-Maria Contention 9 was admitted subject only to the proviso that s peci fi c i ty be suoplied before the hearing.
Consumer Power Company (" Licensee") has moved to strike the testimony of Intervenors Christa-Maria, Mills, Bier, and O'Neill and to dismiss Christa-Maria Contention 9 on the basis that con-tention 9 has been admitted for discovery purposes only.
- However, the Order following special prehearing conference dated January 18, 1980, makes clear that Christa-Maria Contention 9 has been admitted subject only to the proviso that specificity be supplied before the hearing.
The Order provides (p.19-20):
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 spen'. fuel, requires a change in the emer The licensee and staff (Tr.
115-117)gency plar,.
indicated no objection. to the contention as more narrowly limited at the conference for purposes of discovery, but asserted that the in-tervenor should have to specify before the hearing the specific changes required in the emergency MO3 8203230127 820319 PDR ADOCK 05000155 0l[
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2-plan because of the increased fuel storage.
Counsel for Christa-Maria agreed.
-(Tr. 117.)
Accordingly, with that proviso, reouf ring 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.
The Order thus demonstrates that Contention 9 has been admitted into the proceeding.
Even licensee's motion acknowledges that the contenticn was admitted and all that is required is a statement by Intervenors specifying what changes should be required in the emergency plan.
Licensee states:
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 ist Mr. Jordan, counsel for Christa-Maria, 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 the Mr. Jordan as to exactly what's involved in this particular proceeding.
Mr. Jordan:
That's right.
We'll do that.
Tr. 117.
The Sta ff, in response to the the Motion also agree that Contention 9 was " accepted...as reworded by the Board 'With the proviso' that Intervenors speci fy the changes required by expansion." (p2 NRC Staff Response to Licensee's Motions to Strike and Dismiss Christa-Maria Contention 9).
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3-Since the then Chairman of the Board expressly stated that
" discovery can be had on the contention as broadly framed", the contention mus t have been admitted.
What was contemplated was that Intervenors would have the opportunity to engage in discovery on the entire emergency plan and then specify "before the hearing the specific changes required in the emergency plan because of the increased fuel storage."
( Order, supra p.19-20).
There is simply nothing in the order or the transcript of the hearing to support the motion that the contention was admitted only for purposes of discovery.
Any such interpretation so long af ter the fact would deny Intervenors their right to a hearing since they had no reason to believe that Contention 9 had not been admitted.
II.
The Requirement to Specificity Was Not By the Filing of the Testimony and Filing of Intervenors Specifications on March 9, 1982.
Intervenors, on March 9, 1982, filed " Specification of changes required in Emergency Planning Under Christa-Maria Contention No. 9 (copy attached).
Intervenors believed the requirement of specificity was met by the filing of the testimony itself, which directs licensee and staff to those areas of the emergency plan which Intervenors con-tend required change.
The testimony itself set out a series of seven specific proposals which were summarized at the beginning of the testi-mony.
Furthermore, to accomodate Licensee following the filing of this motion Intervenors filed the attached specifications.
There is no need to argue that this document clearly meets any required degree of specificity since the short document speaks for itself.
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4 III.
Admission of the Testimony Was Not Contingent On Pre-filing of Specific Defects in Emergency Planning.
By this Board's Order of December ll,1981, testimony had to be filed on contentions not subject to a motion for summary disposition by January 25, 1982.
Intervenors complied with this requirement.
There is nothing in the orders of January 18. 1980 or December 11, 1981 that suggests that Intervenors must file specifications of defects in the emergency planning prior to filing testimony.
The order of Jnauary 18, 1980 only requires " specificity before hearing".
(p. 20)
As noted above, Intervenors have now met this requirement.
IV.
Arguments As to Factual Bases for Intervenors Testimony Are Properly Addressed to Summary Disposition or the Hearing and May Not be Asserted in a Motion to Dismiss a Contention.
Licensee and staff argue that the factual statements in the testi-mony are inadequate to support Contention 9.
These arguments go to the adequacy or weight of the evidence and are not appropriate on a motion to dismiss a contention.
A hearing on these issues is required, unless a motion for summary disposition is granted.
No such motion has been made.
If such motion were made, Intervenors would have the opportunity to submit affidavits.
Furthermore, Licensee is actually trying to shif t its burden of proof onto Intervenors by this Motion.
The Licensee now has available Intervenors position on the deficiencies of the emre'gency plan.
It must come forward with evidence to meet its burden that the plan does l
protect the health and safety of the public and safety of the public from the hazards of expansion of the spent fuel pool.
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CONCLUSION The motion to strike testimony and Contention No. 9 should be denied.
Respectfully so bmitted,
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HERBERT SEMMEL Attorney for Intervenors Antioch School of Law 2633 16th Street, N.W.
Washington, D.C.
20009 (202) 265-9500 On the Memorandum:
Denise Wiktor Legal Intern i
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