ML20050C483
| ML20050C483 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 04/02/1982 |
| From: | Gallo J, Thornton P, Thorton P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20050C484 | List: |
| References | |
| ISSUANCES-OLA, NUDOCS 8204080546 | |
| Download: ML20050C483 (10) | |
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3 l To: UNITED STATES OF AMERICA L NUCLEAR REGULATORY COMMISSION y 82 AM -6 fM :40 v 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) REPLY OF CONSUMERS POWER COMPANY TO INTERVENORS' " OPPOSITION TO LICENSEE'S MOTION TO STRIKE TESTIMONY AND DISMISS CHRISTA-MARIA CONTENTION 9" Pursuant to the Licensing Board's Order of March 30, 1982, Consumers Power Company (" Licensee ") files the following Reply to the Response of Intervenors Christa-Maria et al. ("Intervenors"),1[ filed on March 19, 1982, to Licensee's Motion to Strike Testimony of Christa-Maria et al. as Testimony and to Dismiss Christa-Maria Contention 9 (" Motion to Strike"), filed on February 19, 1982. On January 26, 1982, Intervenors filed a document purporting to be testimony in support of their position on Christa-Maria Contention 9. In its February 19 Motion to Strike, Licensee pointed out that this contention had not been admitted for litigation and moved to strike the testimony as irrelevant. Licensee further argued that if the document were construed as an attempt to supply the requisite basis ) -1/ " Opposition to Licensee's Motion to Strike Testimony ) and Dismiss Christa-Maria Contention No. 9" (" Response j in Opposition"). o1> p&$a 8204080546 B20402 PDR ADDCK 05000155 / 1 .O. PDR i j j
? > T and specificity for Contention 9, it was insufficient; Licensee therefore moved that Contention 9 be dismissed. On March 9, Intervenors filed a " Specification of Changes l Required in Emergency Planning" (" Specification"), pursuant to a Stipulation entered into by Intervenors, Licensee and Staff on March 1, 1982.2/ Also pursuant to that Stipula-tion, Licensee informed Intervenors by letter of March 11, 1982 that it would proceed with its Motion to Strike because, in Licensee's opinion, Intervenors' Specification failed to delineate any specific factual allegation that expansion of the spent fuel pool at Big Rock Point would create a defici-ency in the Big Rock emergency plan, thus requiring modifica-tion of the plan. Intervenors thereafter filed their Re-sponse in Opposition to Licensee's Motion to Strike on March 19, 1982, which Licensee hereby replies to. I. The Board's Order Following Special Prehearing Conference Did Not Admit Christa-Maria Contention 9 As An Issue For Hearing. Intervenors' interpretation of the Order Following Special Prehearing Conference makes the proviso under which the Board admitted Contention 9 wholly meaningless and should therefore be rejected. Up to the Special Prehearing Conference, Intervenors had made no showing that expansion l 2/ The Stipulation was adopted by the Board on March 18, 1982. i J
o 8 ' O of the Big Rock spent fuel pool wouid' require any change in the Big Rock emergency plan. As demonstrate'd in Licensee's Motion to Strike,_the agreement among Intervenors, Licensee and the Staff at the Special Preh' earing Conference, adopted in the Board's Order, allowed Intervenors to take discovery on the contention although they had not supplied the basis and specificity required by 10 C.F.R. S 2.714. Contention 9 as restated by the Board was merely a form of words which would become a litigable contention if later supported by adequate basis and specificity. Intervenors at first seem to recognize the nature of the proviso under which contention 9 was admitted. They state: 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.) Response in Opposition at 3. Intervenors go on to interpret this proviso, however, as a mere requirement that they unilaterally serve notice on Licensee and the Staff at some time before the hearing what their specific claims would be at the hearing. But clearly neither the agreement of the parties nor the Board's order adopting it waived the basis and specificity requirements of S 2.714, as Intervenors appear to believe.
y n I I I' Moreover, even assuming that the specification required'by the Board was intended only to serve a notice function, the order can hardly have contemplated that Intervenors give such notice at any time prior to the ' hearing. This would reduce the order to nonsense, yet it appears to be Intervenors' position. Obviously, at the very least the specificity required of Intervenors would have to be provided in time to allow Licensee and the Staff to prepare testimony on the contention. The final date for filing testimony on contentions not subject to summary disposition was January 25, 1982.3/ Yet Intervenors sup-plied no specificity before that time, although they had had over two years to do so. InEtead, they now claim that the requisite specificity was to be supplied in the testimony itself. But the facts that the Board provided for simul-taneous filing of testimony and that when Intervenors' testimony was filed Licensee and Staff had no notion of the nature of their allegations sufficiently belie this claim.1/ 3/ Order Setting Final Schedule, December 11, 1981. 4/ Similarly, Intervenors argue disingenuously that Licensee could attack the adequacy of their speci-fication only by a motion for summary disposition, which is not pending. But on October 5, 1981, when Licensee was required to submit such a motion, it had no notice of what Intervenors' allegations were. A motion for summary disposition is not filed in response to testimony.
i.. e i 4 s e-,.g t por all these reasons, Intervenors' purported i testimony must be stricken as testimony and can be construed -only.as an untimely attempt to supply basis and specificity for Contention 9. ~ II. The Allegations of Intervenors' Specification Are Inadequate To Qualify Contention 9 As A L_i,ti_ gable Contention. Licensee's Motion to Strike explained why the allegations of Intervenors' purporte~ testimony were in-adequate to suoply the requisite basis and specificity for Contention 9. Subsequently, Intervenors' Specification, filed pursuant to the Stipulation of March 1, attempted to set out several entirely different ways in which the Big Rock emergency plan is deficient. Licensee will explain. 4 \\ below why these attempted specifications are inadequate. In addition, however, Licensee would point out that the issues now advanced by Intervenors are not addressed in their January 26 testimony. Even assuming that Intervenors had 4 now adequately supported the contention, therefore, they would be required to file new testimony more than two months late. / 5 -5'/ - The already lengthy succession of pleadings on Contention 9 exemplifies Intervenors' piecemeal filing of ad hoc amplifications of their contentions, requiring other s' parties to respond seriatim. Thus the January 26 3-3 (,( ' .9 been adequately specified and admitted for litigation. ' testimony would have been roughly timely had Contention The specification now offered to qualify that contention, however, was not provided until March 9. Similarly, the Board's Order Concerning Additional Contentions of March 19,'1982 noted that although Intervenors' additional 4 contentions of September 4, 1981 were. filed roughly within the specified time',.no attempt to supply basis for ) hem was made until over a month later. 3, ~. l f T
e, Intervenors' Specification alleges several reasons why the expansion of the Big Rock spent fuel pool would render the present Big Rock emergency plan deficient and require changes in the plan. These allegations, however, lack a factual basis. In addition they do not address the contention as reworded by the Board because they amount to no more than general attacks on the overall adequacy of the existing' emergency plan or of the requirements of Appendix E to Part 50 of the Commission's regulations. Because all such issues are outside the scope of this proceeding, Inter-venors still have not framed a litigable contention. Intervenors' allege that the existing emergency plan is " based on a theory of minimal releases" and imply that any increase in the spent fuel pool inventory might therefore render it deficient (Specification at 2). This is not true. The Big Rock emergency plan is based on Appendix E to 10 C.F.R. Part 50, which assumes accident conditons 7 involving reactor core melt consequences. Moreover, Inter-venors should be better informed about the Big Rock emer-gency plan than they appear to be, because in March and May of 1980 Licensee furnished them with extensive responsess to a 1cngthy series of ihwerrogatories which they propounded in connection with Contention 9. Specifically, Licensee's response to Interrogatory 9-2, furnished on May 17, 1980, j stated that the maximum release of radioactivity assumed for emergency planning purposes is a full core meltdown and a
. T breach of the containment building; and that under such a postulation 100% of core inventory gases and 25% of halogens are assumed to be released to the environment over a period of 24 hours. Furthermore, Licensee's response to Inter-rogatory 9-6, furnished on the same date, provided Inter-venors with facts which demonstrate the insubstantialtiy of their attempts to link their concerns about the emergency plan to the proposed pool expansion. Licensee stated that the emergency planning assumption of a complete meltdown and loss of containment integrity overwhlems any contribution made by the spent fuel. Therefore, the contribution of. fission products from the spent fuel pool, in the unlikely event a spent fuel pool accident should occur simultaneously with a core melt, is of no significance. Licensee attached to this response internal memoranda setting forth calcula-tions which demonstrate this result. Intervenors allege that plutonium will be recycled at Big Rock and that mixed oxide (MOX) fuel will be pro-cessed on site. They imply that, in some unspecified way, this would cause expansion of the spent fuel pool to render the current emergency plan inadequate. (Specification at 1.) Intervenors' premise is defective; no plutonium will be recycled at Big Rock Point, nor will MOX fuel be processed on site.
Intervenors allege that the presence of MOX fuels at Big Rock renders the emergency plan deficient because the plan was not designed to cope with accidents involving such fuels. This argument, however, merely challenges the overall adequacy of the Big Rock Point emergency plan; it has no relevance to the expansion of the spent fuel pool. MOX fuels were approved for use in the Big Rock Point plant as part of normal operation under the facility's Operating License. The spent fuel pool already contains spent MOX fuel. Moreover, Licensee has exhausted its existing stock-pile of MOX fuel. All remaining MOX fuel is being dis-charged from the reactor during the current refueling outage and no new MOX fuel is being introduced into the core during the outage. Hence, the proposed expansion of the spent fuel pool bears no relation to the fact that MOX fuel is in residence at Big Rock because the expanded pool will not contain additional MOX fuel.b! Intervenors allege that current radiation monitor-ing equipment at Big Rock Point is inaccurate and that the current provision of the emergency plan for training of local'. personnel is inadequate. (Specification at 3.) These ~6/ In order to fully disclose the facts with regard to MOX fuel at Big Rock Point, Licensee attaches a pleading that it filed on January 26, 1982 in an action in the U.S. District Court for the Western District of Michigan, together with an attached affidavit of Frederick W. Buckman, Executive Director of Nuclear Activities for-Licensee. The attachments indicate that no additional MOX fuels will be discharged to the spent fuel pool after February 1982.
_9_ allegations obviously challenge the overall adequacy of the existing emergency plan at Big Rock; they have no connection with the proposed expansion of the spent fuel pool. Intervenors allege that the current emergency plan is inadequate in that it does not provide for sufficiently early evacuation of children and pregnant women, who are more susceptible to radiation doses; Intervenors allege that the plan will be even more deficient in this respect if additional spent fuel is stored on site. These allegations do not challenge the proposed spent fuel pool expansion but the overall adequacy of the Big Rock emergency plan, and as such are outside the scope of this proceeding.1/ Finally, Intervenors suggest three changes in the Big Rock emergency plan: earlier notification of the public, earlier evacuation, and separate emergency plans for summer and winter. None of these suggestions are prompted by the fuel pool expansion. They all stem from Intervenors' perception of the overall inadequacy of the current emergency plan. In short, Intervenors' Sepcification, although it raises new issues not addressed in their January 26 testimony, does not make any advance on that testimony in terms of 7/ Moreover, insofar as Appendix E contains no provision ~ requiring Licensees to incorporatefsuch a feature in their emergency plans, Intervenors' allegations chal- -lenge the adequacy of the Commission's regulations, l
i framing a litigable contention. Intervenors' new allegations lack a factual basis and none of them are within the scope of the contention as reworded by the Board. Contention 9 is no closer to meeting the requirements of 10 C.F.R. S 2.714 now than it was over two years ago at the Special Prehearing Conference. Moreover, the time for filing testimony on contentions has now expired. Conclusion For the foregoing reasons, Licensee's Motion to Strike, filed on February 19, 1982, should be granted and Christa-Maria Contention 9 should be dismissed. -Respectfully submitted, h it O / v ps'seph Gallo o Peter Thornton Two of the Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE Suite 840 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: April 2, 1982}}