ML20052D741
| ML20052D741 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 05/05/1982 |
| From: | Semmel H ANTIOCH SCHOOL OF LAW, WASHINGTON, DC, BIER, MILLS, CHRISTA-MARIA, ET AL |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20052D743 | List: |
| References | |
| ISSUANCES-OLA, NUDOCS 8205070166 | |
| Download: ML20052D741 (12) | |
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HE ATOMIC SAFETY AND LICENSING BOARD In the-matter of
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Docket No. 50-155-OLA
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Consumers Power Company
)
(Spent Fuel Pool
)
Modification)
(Big Rock Point Nuclear Power Plant)
)
May 5, 1982 INTE RVENORS ' MOTIONS 1.
TO POSTPONE THE HEARING UNTIL SEPTEMBER 13, 1982.
2.
TO DEPOSE ALL NRC PERSONNEL INVOLVED IN THE DECISION NOT TO SEEK A DEFERRMENT OF THE HEARING.
3.
FOR DISCOVERY OF ALL NRC DOCUMENTS RELATING TO THE DECISION NOT TO SEEK A DEFERRMENT OF THE HEARING.
4.
FOR AN ADDITIONAL TEN DAYS TO FILE A MEMORANDUM ON THE NEPA ISSUES.
5.
FOR AN EXTENSION OF TIME TO FILE TESTIMONY TO THIRTY DAYS BEFORE A RESCHEDULED HEARING DATE, OR IF THE HEARING IS NOT RESCHEDULED, TO MAY 17, 1982.
Introduction The deferrment of the hearing is requested to provide adequate
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time for review by Intervenors and staff.to review new material submitted by Licensee and to afford Intervenors opportunity to present witnesses.
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There are two essential facts which are compelling as to the disposition of these motions.
1.
There is no prejudice whatsoever to Licensee in a delay in the hearing until September, 1982.
As Licensee has made clear, the plant can continue to operate until 1984 without expansion of the spent fuel pool.
Indeed, there is sufficient capacity in the pool to permit refueling next year.
The only possible problem that could arise for Licensee is if a condition occurred which required discharge of full core capacity.
But even this would not damage Licensee since the Big Rock Point plant produces only one percent of Licensee's total power.
Furthermore, any shut-down would be short term, until the end of this proceeding before the Licensing Board, if Licensee were to prevail Licensee also has the option of shipping spent fuel to foreign depositories if it wishes to have full core load capacity in the spent fuel pool.
2.
The need for delay is prinarily the fault of Licensee, secondarily of the staf f, and not at all the responsibility of Intervenors.
(a) The principle need for delay arises from the errors of the Licensee in providing information regarding the adequacy of the pool structure at elevated temperatures.
See NRC Staff Motion for Extension of Time to Pile Testimony, May 3, 1982 (hereafter " Staff Motion").
Counsel for Licensee, in its April 28 letter to this Board, concedes that the original NUS Repcrt, See Licensee's obtion for an Expedited Ruling dated January 8,1982 A.a s
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NU S-35 6 7, contains "certain errors."
The errors discovered to date' cover'five areas (see' Affidavit of Howard Joseph i
Eckert, Jr.. accompany ng Licensee's April 28 letter).
The staff i
i is secondarily responsible for its failure to discover the j
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errors until soflate in the proceeding.
i (b) The second issue on which additional time is diby' staff is on cyane handling.
Here the Licensee re' l
did not initially supply full information and staff has requested f
-additional information, due May 5.
i The third issue is seismic analysis of the overhead x
(c)
Here the staff only recently has determined that no crane.
assessment was made a's to whether site conditions at Big Rock i
t are sufficiently anomalous to require modification of the generalized soil site specific spectra.
Whoever is principally at fault, Licensee or staff, the only important question is the safety of the public and-the need for adequate time to review and assess these late developments.
l There should be no' rush to judgment in this case to meet a hearing schedule that has no intrinsic reason for being except 1
that it exists.
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i BACKGROUND M
i On or about April 27, 1982 Janice Moore, counsel for the Staff, notified counsel for Intervenors that the Staff believed that ac least ten weeks were required to evaluate the corrected material supplied by Licensee, new material to be supplied by Licensee and to reevaluate its seismic analysis.
Accordingly, Staff expected to move to defer the hearing to an undertermined date.
In the next three days, however, Staff reversed its position, and now claims that as to two of the items in question (pool structure and cask drop) it could do some sort of a review by May 21 and May 14 respectfively.
As to the seismic issues,
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l the Staff now asserts it requires only until June 25 to complete its analysis and prepare its testimony.
This date, of course, l
E extends oeyond the hearing dates set by this Board and would re-1 sult in a bifurcated hearing, which Intervenors cannot afford due to (unnecessary) repetition of travel expenses.
Thus Intervenors t
will be effectively denied their right to participate in the full a
hearing if a bifurcated hearing is held.
I i
THE STAFF SHOULD HAVE THE TIME ORIGINALLY ESTIMATED AS NECESSARY FOR FULL EVALUATION OF CORRECTED ERRORS AND OTHER LATE ARISING r' ACTUAL INFORMATION The unexplained turnabout, virtually overnight, by the Staff on the need for 10 weeks to evaluate Licensee's corrected error and other materials being filed in the last few days and in days' togeome, requires a granting of Intervenors' motion to postpone the hearing until September.
This will insure that the Staff will j
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have the time to do its job properly.
(Other reasons for post-ponement are set forth in Point III below).
Both the public at large and Intervenors must rely on the capacity of the Staff to fully assess the mass of technical data supplied by the Licensee.
Intervenors do not have the funds to undertake an evaluation of all these materials and relies on volunteers who are available.
Further, the Staff has the in-dependent responsiblility to safeguard the public.
The Staff has already demonstrated in this proceeding a lack of care in evaluating materials submitted by Licensee.
The Staff had accepted the criticality analysis submitted by Licensee.
Fortunately, Intervenors were able to obtain technical advice from a person who could not appear as a witness due to a fear of reprisal by the nuclear power industry.
The information supplied by Intervenors " triggered a thorough review by the Board" (Order of February 5, 19 82 (p. 3).
This Board found Intervenors argument
" basically correct" (P. 3). It also stated:
"We also cannot help but wonder whether staff's acceptance of applicant's analysis means that staff did not independently analyze Keff using its own assumptions and computer codes."
We are now faced with a possible repeat inadequate review by Staff.
The Staff motion does not offer any explanation for the quick turnabout of the decision that ten weeks was required to perform an adequate analysis.
Without such an explanation, me Board should deny the Staff motion for a brief extension of time to file testimony.
Better no testimony than an inadequate job that is rushed through, or an analysis that is more likely to con-firm Licensee's calculations because it takes less time to accept work already performed than to make a fully independent analysis and write an explanation why the calculations may not be correct.
The need for a searching analysis is highlighted by the the fact that the same consulting group (NUS) that was wrong on criticality also made errors in the report in question at this point, " Structural Analysis of the Spent Fuel Pool Liner and Concrete Due to Coolant System Failure for the Big Rock Point Nuclear Power Plant."
The scanty record at present suggests one inference more reason-able than any other - that the turnabout in the Staff's decision came as a result of pressures unrelated to the scientific and technical issues before the staff.
Whether these pressures were the result of the internal bureaucratic pressure now in vogue in the NRC to speed cases along at all cost, or the result of external pressure, Intervenors do not presently know.
Nor does this Board have that information.
Neither does the Board know how long the technical staff that are making these reviews believe they require to do the job adequately.
As set forth in Point II, the knowledge can be obtained through discovery.
In these circumstances the only course consistent with the health and safety of the public is to postpone the hearing to give the Staf f the full ten weeks it originally deteanned was necessary to an adequate review.
This would provide for testimony to be filed about July 10.
Leaving a month to prepare for the hearing, the earliest the hearing could commence would be August 10.
How-ever, due to the unavailablity of pro se Intervenor O'Neill until after Labor Day, a hearing date of September 13 seems appropriate.
T'te only alternative is to conduct discovery to determine the necessary time, but this too necessitates a delay of the hearing.
Finally, Intervenors again point out that under the Staff's proposal for an extension of time on the seismic issue, a bifurcated l
hearing 'would have to be held sometime cring the summer without O'Neill, or postponed to September.
)
II DISCOVERY IS NECESSARY TO DETERMINE THE TIME REQUIRED FOR STAFF TO ADEQUATELY ASSESS THE NEW MATERIAL SUBMITTED BY 1
LICENSEE AND TO LEARN THE REASON FOR STAFF'S CHANGE OF POSITION If the Board does not postpone the hearing until September 13, 1982, discovery is required to determine how long the scien-tific and technical staff actually require to fully and adequately i
i assess the now " corrected" material filed by Licensee and the 1
recently filed additional materials, as well as the new seismic-enalysis.
In the interest of time, Intervenors move to compel depositions of all NRC personnel who had any part in the process which led to a reversal of the decision not to seek a deferrment of the hearing. 10 C.F.R. 52. 720 (h) (2).
To have the entire matter before the Board, Intervenors further move for discovery against the Staff of all NRC papers, writings, memorandum or any other record relating to the decision not to seek a deferrment of the proceeding.
As soon as time permits, Intervenors will file a similar request pursuant to 10 C.F.R. 52.744.
Intervenors have shown above the necessity for.this information
.-concerning the reversal of the Staff's decision to seek a deferr-ment of the hearing.
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III BECAUSE THE HEARING CONFLICTS WITH THE UNITED NATIONS SPECIAL SESSION ON DIS-ARMAMENT, INTERVENORS CANNOT OBTAIN TESTIMONY FROM NECESSARY WITNESSES Intervenors have thus far been able to procure only one expert witness, Dr. Michio Kaku.
Unknown to Intervenors at the time the hearing date was set in a conference call was the fact that the United Nations Special Session on Disarmament begins about June 11 and public activities relating to the Session several days earlier.
Experts who might have been witnesses in this proceeding were unable to do so because they will be attending the Special Session.
In particular, both Dr. Gordon Thompson, physist, Union of Concerned Scientists, and Dr. Marvin Resnikoff, a physist from New York City, advised Intervenors of dieir willing-ness to be present in the fall but that they are unavailable during June due to the Special Session.
In addition, Professor Mark Ross of the University of Michigan Department of Physics in unavailable between June and August but indicated a willingness to testify in the fall.
These witnesses are vital to Intervenors ability to present evidence and cross examine Licensee's experts.
Therefore, in-dependent of all other reasons, Intervenors request deferral of the hearing until September.
IV AN EXTENSION TO MAY 17 SHOULD BE GRANTED INTERVENORS TO FILE TESTIMONY AND TO FILE A MEMOIWNDUM ON THE NEPA ISSUE.
Counsel for Intervenors is acting as a volunteer handling a full teaching position at Antioch Law School in addition to liti-gating this case.
The rush of events in the past week, the time spent in the last minute motions concerning the hearing date, 1
and the conflict of examinations and the need to grade them immediately due to graduation, has made it impossible to complete the preparation of testimony by May 7.
In addition, from April 27 until May 3, counsel for Intervenor had reason to believe the hearing would be postponed.
Therefore, if the hearing is not postponed, Intervenors need a ten day extension to file testi-mony and the NEPA memorandum.
Intervenors wish to point out that compliance with NEPA is the responsibility of the Agency, here the NRC, without any assistance from Intervenors.
We are in fact willing to assist i
the Board in determining the proper application of NEPA, but require the time to file a well reasoned memorandum.
Respectfully submitted, t
HERBERT SEMMEL Attorney for Intervenors Christa-Maria, Mills and Bier Antioch School of Law 2633 16th Street, N.W.
Washington, D.C.
20009 (202) 265-9500 ext. 240 i
ADDENDUM TO MOTION Following preparation of this motion, on the morning of May 5,
1982 Intervenors received Licensee's Reply To Motion For Extension of Time.
This document further illustrates the need for discovery to determine precisely how much time is required for an adequate assessment of the new information.
It also reveals to Intervenors for the first time a defect in the proceedings.the existence of
" informal" discovery between Staff and Licensee to which Intervenors are not a party.
Licensee's reply (p. 6) reveals that on April 26 a conference call took place between Staff and Licensee.
Intervenors did not participate in that call and had no knowledge of it.
Licensee correctly characterizes the private telephone conversation as a method used. "Instead, of pursuing legitimate discovery processes in this proceeding, a conference call was instigated by the Staff on Monday April 26."
Apparently no transcript was made of this call.
Licensee has now provided its version in a memorandum from one of its employees, D.P.
Blanchard, attached to Licensees reply.
But parties to a proceeding need not rely on summaries by adverse parties for discovery information.
This is not the first time that Intervenors have not been invited to informal discovery proceedings.
Intervenors were not informed of the April 20 meeting between Licensee and Staff, (see Licensee Reply, p. 4) until the day before it was held.
The only reason Intervenors learned of it was the counsel for i
Licensee decided to attend.
The Staff therefore requested its counsel to attend, and Richard Backman, one of the Staff Counsel, i
advised counsel for Intervenors of the meeting.
Intervenor s
Christa-Maria attended the meeting but was improperly denied the right to record it.
Additional discovery is thus required to determine the extent of information exchanged between Licensee and Staff which has not l
been transmitted to Intervenors.
1 Further, Staff does not appear to have been even handed in its treatment of informal discovery.
On April 16, 1982 counsel for Intervenors requested of Janice Moore, counsel for Staff, that Intervenors' witness, Dr. Mihio Kahu, be permitted to speak with a member of the NRC technical staff to provide background information he deemed helpful in preparation of his testimony.
Ms. Moore agreed to consider the request.
On or about April 23,
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Mr. Seinmel called Ms. Moore concerning the request.
Ms. Moore advised him that she was not disposed to agree because Inter-venors seemed to be seeking Staff help in preparing testimony.
She also requested more detail on what information Dr. Kaku was seeking.
Ms. Moore did agree to speak directly with Dr. Kaku to learn of his questions.
Unfortunately counsel has been unable to i.
reach Dr. Kaku so the matter has not been pursued.
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l Although counsel for Staff did not reject Intervenors request, Intervenors subnit it should have granted in the same routine manner that private discussions are held between Staff and Licnesee.
Intervenors therefore nove for an order directing the Staff to permit a conference call between an appropriate technical expert and Dr. Kaku.
Of course Licensee may be a party to the call if it wishes.
Intervenors agree with Licensee on one point - Staff has given no explanation of how it chose the extended dates to file testimony.
Intervenors submit that the scanty record infers most strongly that the dates were chosen to minimize any delay in beginning the hearing as previously scheduled, June 7, and not with regard to the time the technical and scientific reviewer's regard as necessary for a complete and adequate analysis.
Intervenors submit that neither they nor this Board can be satisfied by a representation of counsel for Staff at the conference on May 6 on these matters.
Such representation will merely reflect the bureaucratic decision to proceed with the hearing on June 7.
It will not reveal what the individuals who must make the analysis and review of the new information believe -
is necessary.
Respectfully; submitted, Herbert Semmel Attorney for Intervenors l'
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