ML20042A150
| ML20042A150 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 03/19/1982 |
| From: | Bloch P, Paris O, Shon F Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8203230144 | |
| Download: ML20042A150 (12) | |
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.q UNITED STATES OF AMERICA RECEWED 9
NUCLEAR REGULATORY COMMISSION b
t&R2 g1982 P ATOMIC SAFETY AND LICENSING BOARD nn:sDES" Y E
W"8hm Before Administrative Judges:
SERVED MAR I O r32 4
Peter 8. Bloch, Chairman
~
Dr. Oscar H. Paris Mr. Frederick J. Shon In the Matter of Docket No. 50-155 (Spent Fuel Pool Amendment)
CONSUMERS POWER COMPANY (Big Rock Point Plant)
March.19, 1982 MEMORANDUM AND ORDER (Concerning Additional Contentions)
On September 4,1981, Christa-Maria, Jim Mills and Joanne Bier (Christa-Maria) filed a motion styled alternatively " Additional Contentions" or " Motion for Leave to File Additional Contentions." The Comission's staff (staff) responded on September 15, 1981, and Consumers Power Company (applicant) responded on the same day.
Then, in its Reply, filed on October 9c 1981, Christa-Maria attempted to provide a basis for its 18 additional-contentions (plus subparts).
Staff and applicant oppose the admission of all of the new contentions.
We have decided not to admit any of the additional contentions as issues in this proceeding.
We find that intervenor has not shown good cause for the late filing of the basis of these contentions, that the untimely allegations of the reply failed to show a basis for these contentions and that there are no issues of such importance that the Board should consider them sua sponte. We alsc review the relationship between the additional f502.
SEA $S8EoSSSSNB 5 (o j
New Contentions:
2 contentions and our decision in LBP-82-8 (February 19,1982) and we find that some of the issues raised by the additional contentions have already been either included or excluded from the proceeding in our earlier decision.
I GOOD CAUSE FOR LATE FILING Christa-Maria seeks admission for its additional contentions on two separate grounds: (1) that the January 17, 1981, Special Prehearing Conference Order, LBP-80-4, 11 NRC 117 (1980) authorized late filing; (2) that language of the Board's chairman in the course of the Special Prehearing Conference authorized late filing.
Christa-Maria made no attempt in its September 4 filing to explain how it satisfied the criteria for late filing set forth in 10 CFR 62.714(a)(1)(i-v); its attempt to satisfy those criteria was made in its subsequent Reply.
A. Special Prehearing Conference Order Christa-Maria argues that the special prehearing order authorized late filing of contentions related to its initial contentions 4 and 7.
Intervenors' Reply at 3-4; LBP-80-4,11 NRC 117,124 (1980).
Contention 4 related to: (1) the insufficiency of information in the application about the spent fuel racks, including their configuration, the type of rack and the vendor, and (2) the pool environment, including whether it is borated, oxygenated, stagnant or demineralized.
Contentions.of Christa-Mari a, October 30, 1979 at 3.
Contention 7 dealt with increased radiation absorbed by the plant's demineralizers and then " released to the atmosphere through the off-gas system."
Id. at 4.
4 1
I New Contentions:
3 The stipulation governing the withdrawal of Contention No. 4 and exterided by the Board to include Contention No. 7, stated:
Contention No. 4 is withdrawn by Christa-Maria at this time; provided that after reviewing information concerning the matters raised in the contention as written in the October 30, 1979 submittal to the licensing Board, Christa-Maria may assert a new contention within the subject matter parameters of said Contention No. 4; and provided further that said new contention must be filed before the close of the time for discovery as provided by the Licensing Board.
Stipulation Among NRC Staff, Christa-Maria and Consumers Power Company (November 26,1979) at 3.
Since the stipulation was signed by the parties and accepted by the Board, it is binding on this proceeding. The September 4 filing was received roughly within the specified deadline, since the Board ruled that the schedule provided in its Special Prehearing Conference Order at 134 should be measured from July 22, 1981, rather than from the date of issuance of the Safety Evaluation Report and the Environmental Im-pact Assessment. ORDER (Revising' Schedule), June 16, 1981. The additional contentions were filed September 4, roughly 47 days after July 22.
Intervenors Reply, which contained its alleged basis for the additional contentions was not, however, timely.
It was filed more than 30 days after the close of discovery and the extended deadline for the filing of contentions based on the SER and EIA. To be timely under the Board's order, the additional contentions had to be filed before the end of discovery.
In addition, to be timely under the authorization for filings j
related to the EIA and SER, the filings also had to be completed within the 47 day deadline.
In this case, the period allotted for discovery was extended by the Board on motion of the intervenors.
The extension was i
intended to permit ample time for the filing of late contentions. No
New Contentions:
4 further extensionuof the time fcr filing was requested.
Yet the intervenors f ailed to provide the basis for their contentions in a timely f ashion.
This lack of timeliness cannot be lightly excused.
By that stage of the proceeding, intervenors were fully informed of their obligations concerning the filing of contentions.
The Special Prehearing Conference Order in this case applied the requirement that the basis of contentions be specified.
Intervenors had ample time to study the relevant papers to decide whether or not they had a basis for their contentions and to assemble that basis for filing in the appropriate document. There simply is no excuse for the basis of contentions not being included in the September 4 filing and the Board finds that there has been an inadequate showing that the untimely attempt to supply a basis for these contentions should be accepted.
Consequently, we rule that the basis for these contentions was not filed in a timely fashion.
II EFFECT OF THE BOARD CHAIRMAN'S COMMENTS In the course of the Special Prehearing Conference, the following exchange occurred:
l MR. O'NEILL: Well, again I'm just a poor country boy. Maybe you can l
clarify a matter for me.
If during discovery I find out that there's another...
L specific matter, let's say, you know, what is the effect of a worker l
dropping his lunch pail in the pool, is it possible then for me to l
formulate another contention based on that?
CHAIRMAN GROSSMAN: Let me say this: Any time during the~ proceeding that you discover a safety question that ought to be addressed, you l
certainly ought to apply to the Board, and I can't see that we would l
ever deny a request if there is a legitimate safety question l
involved.
l l
[ Emphasis supplied.] Tr. 195-6.
New Lontentions:
5 We do not interpret chairman Grossman's statement to be a general-invitation to file late contentions without regard to the regulatory criteria for late filing. The language we have emphasized indicates that the Chairman was focusing on matters uncovered in the course of discovery, not on matters that just happened to occur to an intervenor as time passed.
To that extent, the Chairman's ruling is consistent with the Board's continuing views. LBP-82-8, February 19,1982 at 43-44 (admissibility of overflight of national guard airplanes) and 47 (admissibility of contentions arising from facts uncovered in the course of discovery).
This interpretation also is consistent with the Board's action in establishing a special deadline for " filing any new contentions based on new information contained in SER and EIA within 47 days of SER and EIA issuance." Special Prehearing Conference Order at 134.
It is clear from the wording of the deadline, pursuant to which the present filing was made, that the only new contentions being invited were those based on the SER and EI A, documents that had not previously been available. We note that'this interpretation is consistent with 10 CFR s2.714(a)(1)(1-v).
We conclude that there was no broad-brush invitation to file late i
contentions in this proceeding.
III GOOD CAUSE FOR LATE FILING Commission regulations provide criteria for late filing.
In its Reply, Christa-Maria attempted to show that its September 4 filing met these criteria for late filing.
However, it made no showing that it was l
l I
New Contentions:
6 necessary for it to wait until October 9,1981 to file the basis for these contentions.
We have generally been somewhat congratulatory in tone concerning the usefulness of intervenors' participation in this proceeding. See LBP-82-8 at 54-55.
However, iritervenors' September 4 filing of additional contentions was lacking in ouality. There were no citations to specific documents except for general citations to the application.
There was little effort to describe in detail the specific items of concern to intervenors.
Indeed, the contentions filed at this late point in the proceedings were generally less specific than those filed by Christa-Maria at the outset of the' proceedings. Contentions of Christa-Maria, October 30, 1979.
Hence, we reach the conclusion that intervenors failed to provide a basis for the contentions it filed on September 4 and that good cause for late filing of the bases for these contentions has not been shown. A consequence of intervenors' omission of the bases for its contentions is that applicant and staff both filed extensive responsive pleadings arguing that basis was lacking.
These pleadings would be entirely wasted and irrelevant were we to accept the addition of bases by intervenors at a subsequent juncture. We cannot accept that consequence of intervenors' unexplained tardiness.
We rule that there was no showing of good cause for the late filing of the bases for the contentions.
IV BASIS FOR ADDITIONAL CONTENTIONS Even though there has been no showing of good cause for late filing, we are hesitant to reject any contention supported by sufficient basis to demonstrate that the public health and safety or the environment would be l
New Contentions:
7 endangered.
In such a case, we would be obligated to exercise our authority to declare such an issue part of the proceeding, perhaps by analogy to the sua sponte authority provided for in operating licensing cases.
Consequently, we have reviewed Christa-Maria's contentions to determine whether any serious safety issues have been included in its filings, and we have determined that no serious new issues have been raised by it.
Some of the issues Christa-Maria mentions are important; but we find that each of those important issues already is a part of the proceeding as the result of our earlier decision in this case. LBP 82-8; February 19, 1982.
In the course of this review, we also h&ve found that the contentions that have not already been admitted under LBP 82 are without basis and should be excluded from consideration on that independ Sund.
In addition, we consider that, LSP 82-8 is deter setive concerning.
the ad:aissibility of several of ;the additional contentions.
In some
~
instances, it ruled that intervenors had failed to show the existence of a genuine issue of fact.
Since those issues of fact already were relevant to admitted contentions, failure to show the: existence of a genuine issue of f act precludes admission of a new contention which depends on the same genuine issue of fact.
In other instances, the Board admitted issues into the proceeding that permit intervenors to litigate some of the most important points they sought to raised in their late contentions.
We find the following portions of L8P-82-8 to' relate to the additional contentions:
t LBP-82-8, slip op., at 19-23 rules that there is a lack of a genuine issue concerning an increased hazard of radioactive effluents from s
i
new Lontentions:
B the expansion of the fuel pool.
Hence, there is no genuine issue concerning Iodine-129 and Krypton 85, as asserted in additional contention 1.
t Id. at 73 admits for litigation a broad issue concerning the adequacy of hiring, training and supervision and health physics safeguards during installation of new fuel racks.
This would permit intervenors to challenge applicant's health physics 91ans if they do not deal adequately with problems created by radioactive crud, thus covering the concern raised in contention 4.
t Id. at 47 permits litigation of a cask drop incident, thus permitting intervenors to raise some of the issues covered by their t
contentions 6 and 7.
Whether or not intervenors may argue for a pool cover depends on their first establishing the credibility of an accident which might require such a solution.
Then intervenors will need to show the credibility of their preferred sol,ution. We note that intervenors' reply, 1
at 10, does not show any reason for believing that a pool cover is feasible or would be helpful in the event of a cask drop or that such a cover would not create additional safety problems of its own, t
Id. at 48-49 admitted a Keff contention. Under this conten-tion, if intervenors should show a danger of criticality during the removal and installation of racks, they will be able to litigate additional conten-tion 8, concerning boration of the pool during removal and installation.
Under the admitted contention, proof concerning the effect of rack deforma-tions such as are suggested under contention 14 would be admissible-providing that intervenor shows the event is credible and would affect Keff.
t Id. at 14-15, 18, admits a centention relating to a zircaloy/ steam reaction, thus admitting a portion of new contention 12.
However, id. at 12
New Contentions:
9 finds that there is no genuine issue relating a TMI-accident because there was no showing that expansion of the fuel pool would exacerbate such an accident.
Since intervenors could have shown a connection between a meltdown and expansion of the Osel pool as part of its TMI-contentton it cannot introduce this issue as an additional contention in contention 12.
We also note that several of the additional contentions are basically not f actual contentions but are legal argument.
If we can be persuaded that these legal arguments are correct and that there is a requirement for preparation of an environmental impact statement or the assessment of environmental alternatives then we will act accordingly.
Additionally, we find that most of the factual contentions have not specified their basis with sufficient particularity, for the reasons shown in Table 1.
There are two common deficien,cies which bear discussion.
In some instances, intervenors have expressed dissatisfaction with the completeness of the SER.
However, that is not enough to raise a safety issue in this proceeding.
Intervenors must show that there is a serious safety or environmental deficiency in the application, not in the staff's work. Only in an egregious case, where the staff's work appears to have been so deficient as to deprive the public of the protection the staff generally affords to public health and safety, would it be appropriate to defer a licensing decision because the staff work is inadequate.
Generally, minor deficiencies in the SER must be shown to be safety problems in the application or they will not be admitted as contentions in a licensing proceeding.
l l
L
New Contentions:
10 The other connon deficiency is that intervenors have in several instances cited another proceeding without showing why that proceeding is relevant or even indicating a knowledge of how the two proceedings differ.
Such a use of precedent is not an adequate method of establishing basis for a contention.
TABLE 1 fontention Reason it Lacks Basis 1
No basis for rejecting staff's finding in the cited portion of the EIA that there would not be significant additional emissions of Iodine-129 and Krypton-85.
2 No reason to believe that fuel elements need to be encapsulated. No reason to believe that there is a relationship between staff findings on p. 8 of the EIA and this contention.
3 No reason to believe the containment should be isolated l
during fuel transfer operations. Cited EIA sections and the cited case do not support this notion. No reason to believe that there is faulty isolation equipment or that expansion of the fuel pool calls for new fuel transfer procedures.
4 Basis is not at issue. The issues that are raised may be discussed under Christa-Maria Contention 2.
5 No reason to believe that tne spent fuel storage racks will be cut up and shipped.
EI A s5.3.3 and licensee's answers to intervenors' interrogatories indicate that the racks will not be cut up.
6 Basis is not at issue. The issues may be discussed under O'Neill II C.,
as revised, and under O'Neill II E.-3, to the extent that realistic rack deformations can be shown.
9 9
e
New Contentions:
11 TABLE 1 (CONTINUED)
Contention Reason It Lacks Basis 7
No reason for believing a pool cover would be helpful or feasible as a response to possible cask drop accidents.
8 No reason to believe that boration is necessary or that racks containing fuel can be overturned, spilled or d amaged.
10 No reason to believe that local meteorology or turbine characteristics may credibly lead to the generation of such missiles or that the expansion of the fuel pool would substantially add to the risk of such missiles.
12 No indication of how a steam explosion or meltdown would occur or would disperse the contents of the fuel pool.
13 No basis for believing that alternative sources of power are not available or reliable or that an expected outage would be of sufficient duration to affect the pool.
14 No reason to believe a criticality excursion would' occur unless boration is used. Also no basis for believing that the accident mechanisms are credible.
15 Withdrawn.
16 No reason to believe any radioactivity will leak.
17 No reason to believe that Big Rock Point is not seismically qualified or that whether it is seismically qualified.is related to the fuel pool expansion. No reasen to believe an earthquake would lead to a meltdown in the fuel pool or that the pool would somehow contribute to a meltdown in the reactor.
18 No reason to believe a rad-waste facility related to the fuel pool expansion is proposed or planned or would cause any problems.
I
New Contentions:
12 0RDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 19th day of March,1982, ORDERED None of the Additional Contentions of Intervenors Christa-Maria, Jim Mills and Joanne Bier, as filed on September 4,1981, shall be admitted as issues in this proceeding. However, the Board defers its decision on the need for an Environmental Impact Statement and for the assessment of alternatives, pending receipt of briefs on these issues.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 3
e Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE
) 5t(kV N dXb Oscar H. Paris ADMINISTRATIVE JUDGE
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Frederick 4. Snon ADMINISTRATIVE JUDGE Bethesda, Maryland O
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