ML20128A040

Memorandum & Order (Following Prehearing Conference).* Schedule for Discovery & Other pre-trial Events Proposed by Util,As Modified by Board,Adopted.Certificate of Svc Encl. Served on 921125

ML20128A040
Person / Time
Site:	Millstone
Issue date:	11/24/1992
From:	Smith I Atomic Safety and Licensing Board Panel
To:	NORTH ATLANTIC ENERGY SERVICE CORP. (NAESCO)
References
CON-#492-13405 92-665-02-OLA, 92-665-2-OLA, OLA, NUDOCS 9212030157
Download: ML20128A040 (10)

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jh ' w fiLD mhisc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 92 NOV 24 P3 50 ATOMIC SAFETY AND LICENSING BOARD

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Before Administrative Judges:

Ivan W. Smith, Chairman Dr. Charles N. Kelber Dr. Jerry R. Kline SERVED NOV 2 5 1992 In the Matter of NORTHEAST NUCLEAR ENERGY Docket Nos. 50-336-OLA COMPANY FOL No. DPR-65 (ASLBP No. 92-665-02-OLA)

(Millstone Nuclear Power Station, Unit No. 2) (Spent Fuel Pool Design)

November 24,-1992 l

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MEMORANCUM AND ORDER l (Epilowino Preheurino-Conference)

Backcround Pursuant tt the Board's notice of October 1, 1992, the parties joined the Board in a prehearing conference on November 5, 1992 at New Haven, Connecticut. The NRC Staff and the Licensee wer< represented by their legal counsel and attended by technical. advisers. The Intervenor, Cooperative Citizens Monitoring Network (CCMN), was represented by-its Coordinator, Mary allen Marucci. The Board understood and agreed in advanco of the conference that CCMN's technical adviser, Dr. Michio Kaku, would not be able to attend.

9212030157 921124 PDR ADOCK 05000336 G PDR pV

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i l As announced in the October i Notice, matters 4

discussed at the prehearing conference included:

, 1. Further identification, simplification and 1

clarification of the issues in the a

proceeding.

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! 2. The possibility of settlement, stipulations

of fact and admissions of fact.

l 3. The need for any discovery under the NRC

discovery rules, 10 C.F.R. SS 2.740 - 2.744,

4. Establish a schedule for motions for summary disposition, exchange of evidence, and any

, evidentiary hearing, and; i

5. Questions by the Board to the parties

{ concerning technical matters relevant to the J

contention.

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! The following order recites the more significant actions taken during and as a result of the conference.

) Issue For Discoverv 4

In the Memorandum and Order of September 30, 1992 ruling on contentions (LBP-92-28, 36 NRC ), the Board proposed a summary of the issues raised by Dr. Kaku's discussion of asserted errors in the criticality analysis.

, Slip op, at 29-39; ff. Tr. 21. At the prehearing

conference, it became apparent that CCMN's representative was technically unprepared to discuss whether the Board's

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proposal accurately captures Dr. Kaku's concerns under i

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Contention 1 as adopted by the Board for litigation in the f

! proceeding. CCMN agreed to provide the Board with.Dr.

l Kaku's views within one week. Tr. 52-57. Dr. Kaku's response, received by the Board on November 23, 1992, eighteen days later, was not helpful.* He insists that the

} Board's summary of his concerns is incomplete and that all-of pages 14 through 16 of his affidavit of August 23, 1992 2

should be included.

i l The pages alluded to by Dr. Kaku, except for paragraphs

- 29 and 30, relate primarily to his arguments concerning the-

! maximum credible accident for the spent fuel pool.

Apparently CCMN nas yet to inform Dr. Kaku that the Board rejected CCMN Contention 2 and Dr. Kaku's discussion of the 4

maximum credible accident as issues in this proceeding.

LBP-92-28, Slip op, at 32-33. As to paragraphs 29 and 30 of t

2 Letter, Michio Kaku to Atomic Safety and Licensing

! Board Panel, November 11, 1992, forwarded by CCMN's letter to the Judges dated November 18, 1992. The Board notes that Ms. Marucci has once again failed to comply with NRC regulations and Board directives concerning the format and 4

service of pleadings; particularly 10 C.F.R. SS_2.707, 2.708, and 2.712(f). Further, her filing was again late

. without leave of the Board. Our Memorandum and Order of September 17, 1992 (LBP-92-26, 36 NRC -) imposed sanctions upon CCMN for repeated failures to comply with Board directives concerning the filing of pleadings. That Order cautioned that more severe sanctions may be imposed for future violations. We have accepted CCMN's November 18 pleading solely as a convenience to the other parties so-that the proceeding may move along. However, the Board may consider this incident in the event the question of i

sanctions arises again.

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Dr. Kaku's affidavit, the Board believes that it has captured those points in its summary of the criticality i analysis issue raised by Dr. Kaku in CCMN Contention 1.

4 The Licensee believes that the Board's proposed issue is " fair and fully captured (Dr. Kaku's] concerns." Tr. 19.

However, Licensee argues that Dr. Kaku's incorrect factual assumptien (16% sampling rate of Boroflex boxes) -indicates -

l that the allegation does not present a genuine issue of i

4 material fact as required under 10 C.F.R. S 2. 714 (b) -

( 2) (111) . The Board has corrected the factual error in the issue as adopted belou. We do not accept Licensee's

argument because it is in essence a premature challenge to l the factual merits of the contention. See n.2, infra, i

The NRC Staff neither approved nor objected to the Board's characterization of the issue, but seemed to agree that it is satisfactory, pending Dr. Kaku's comments.

Tr. 27-28 (Mr. Hull). In view of Dr. Kaku's failure to

l. focus on the merits of the Board's proposed issue, we deem the Staff's position to be that the issue as we proposed it is satisfactory.

4 Accordingly, the Board approves for.the purpose of discovery in this proceeding the following issue, adopted and corrected from the Memorandum and Order of September 30, t

1992.

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4 l Licensee's belief that the rearrangement can only t reduce the pool's storage capacity'and hence make the

, pool less dangerous, represents premature optimism.

. Affidavit, 1-4. More information is required. Id.,

cassim. A reanalysis of the criticality. study is l' needed and should address the following issues:

1-i-

What is the actual stat'e of-the Boroflex 1.

box degradation, and-what is the corresponding

, disposition-of the. water gaps? Id., 1 8. The Licensee examined approximately half of the-

- poisoned rack cells- with a defect rate of 16%.2 4 If the. sample is not-representative, the_ gaps may -

i be larger;than~ expected, or locally concentrated, i

A concentration of gaps would-cause local

enhancement of the neutron distribution with an j effect of increasing k gg.

l 2. To what extent are the-benchmark data a used by the Licensee. representative of the i arrangement of Boroflex boxes, fuel. boxes, and j water in the storage pool? Id.', 1 9.

! 3. Have the Monte Carlo calculations

- incorporated enough iterations to provide a good

! estimate of the pool's reactivity? Id., 1 10(d).

j 4. If a vertical buckling term has been-l used, has it been used correctly? Id., 1 10(c).

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2 l Dr. Kaku incorrectly. stated that only-16%lof the -

l Boroflex boxes were examined. Affidavit, 1 7. .The NRCl

Staff caught this error and noted that:the defect rate is

!. 16%.- The sampling consisted of:approximately half of the

] poisoned rack cells. - Staff Answer at:19,-citina Licensee's Application, Attachment 2, at 1-3.

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I The Board directed Dr. Kaku to promptly inform.the-3 Board'and parties whether the error changes his conclusions, j Dr. Kaku concedes the inaccuracy, butJstated that.it did'not in any substantial way change his conclusions. Kaku letter, November 11, 1992.

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6-Schedule for Discovery and Further Hearina Preparation J

At the Board's invitation (Tr. 59-60), Licensee, on

November 11, 1992, proposed a schedule for discovery and for other pre-trial filings. Licensee's proposal places the

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Board in direct control of discovery in that it requires parties to file discovery requests and objections to discovery requests with the Board for prompt resolution.

4 Licensee proposes that discovery commence on December 4, 1992 with responses to uncontested requests due I on January 11, 1993. On November 18, CCMN countered by 1

proposing a window for first discovery requests beginning on l December 5, and ending on December 19, 1992, with replies to l

uncontested discovery requests to be made 30 days following receipt of such requests.

The Board grants the essence of CCMN's counterproposal

but simplifies the time accounting that would be required.

Parties may begin making discovery requests on December 4, j 1992, and must file requests no later than December 18, l 1992. All responses to ubcontested discovery requests filed I no later than December 16, 1992 shall be due on or before January 21, 1993.3 3

All parties are now in agreement with the-discovery schedule's concept, sequence, and timing. The NRC Staff did not oppose Licensee's November 11 proposal and by telephone on November 23 agreed to CCMN's counterproposal. CCMN only countered part-of Licensee's November 11 proposal by seeking the extension of time to file discovery requests. Counsel (continued...)

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On or before January 12, 1993, following attempts by parties to reconcile differences, parties shall file any objections to the discovery requests. With these changes the Board adopts the Licensee's proposal for discovery pleadings.

The Board also approves Licensee's proposed schedule for filing-summary disposition motions, filing pre-filed -

direct testimony and for any evidentiary hearing, but with one addition: Within 10 days following the close of discovery, the NRC Staff shall lead the parties in settlement negotiations. Within 14 days following a report by the Staff that settlement negotiations have failed, the parties may file motions for summary disposition.

Official Notice The Board proposed that official notice be taken of certain concepts of computer codes for analyzing the criticality of the Millstone 2 spent fuel pool. Ff. Tr. 26.

In view of the NRC Staff's objection, the Board does not take official notice of the concepts. Tr. 33-34, 3(... continued) for Licensee agreed by telephone on November 23 to CCMN's counterproposal.

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9.E&EB The issue as set out above is adopted for discovery.

The schedule for discovery and other pre-trial events proposed by the Licensee, as modified by the Board, is adopted.

FOR THE ATOMIC SAFETY AND LICENSING BOARD - '

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ap /?4Ad&v

,M van W.

_. Smith', Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland November 24, 1992 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of NORTHEAST NUCLEAR ENERGY COMPANY Docket No.(s) 50-336-0LA (Millstone Nuclear Power Station, Unit No. 2)

CERTIFICATE OF_ SERVICE I hereby certify that copies of the foregoing LB M&O (FOLLOWING PREH. CONF.)

have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

i Office of Commission Appellate Administrative Judge Adjudication Ivan W. Smith,-Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. ' Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge -

Charles N. Kelber Jerry R. Kline Atomic Safety and Licensing Board Atomic. Safety and Licensing Board U.S. Nuclear-Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 John T. Hull, Esq. Richard M. Kacich Ann P. Hodgdon, Esq. Director,' Nuclear Licensing -

Office of the General Counsel Northeast Utilities U.S. Nuclear Regulatory Coamission P. O. Box 270-Washington, DC 20555 Hartford, CT 06101 Patricia R. Nowicki Mitzi S. Bowman Associate Director Coordinator-EARTHVISION, INC. CON'T WASTE CONNECTICUT 42 Highland Drive 97 Longhill Terrace South Windsor, CT 06074 New Haven, CT .06515-

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,e Docket No.(s)50-336-OLA- 1 LB M&O-(FOLLOWfNG PREH CONF.)

Nicholas S. Reynolds, Esq.

John A. MacEvoy, Esq.. Mary Ellen Marucci Winston & Strawn 104 Brownell Street 1400 L Street, N.W. New Haven, CT 06511 Washington, DC 20005 -

Michael J. Pray, AIA Frank X. Lo Sacco

87 Blinman Street 4 Glover Place, Box 1125 New London, CT 06320 Middletown,'CT 06457 Joseph M. Sullivan Rosemary Griffiths 17 Laurel Street 39 South Street

! Waterford, CT 06385 Niantic, CT 06357 Professor Michio Kaku Department of Physics

, City College of New York l- 138th Street and Covent Avenue New York, NY 10031 Dated at Rockville, Md. this 25 day of-November 1992 Offite of the Secretary of the Commission-

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