ML20247A480

Corp Motion to Strike State of VT so-called Rebuttal Testimony.* Testimony of Witness Wk Sherman Should Be Stricken for Failure to Comply W/Board 890112 Order

ML20247A480
Person / Time
Site:	Vermont Yankee
Issue date:	03/20/1989
From:	Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20247A487	List: ML20247A480 ML20247A549 ML20247A608
References
CON-#189-8350 OLA, NUDOCS 8903290131
Download: ML20247A480 (3)

Text

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CO B EiLD h wir UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 MR 27 P4 :15  ;

before the 09 L 00Cl'a 4; , . o q;t ATOMIC SAFETY AND LICENSING BOARD M' '

i

)

In the Matter of )

) l VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA POWER CORPORATION ) i

) (Spent Fuel Pool l (Vermont Yankee Nuclear ) Expansion)

Power Station) )

)

VERMONT YANKEE NUCLEAR POWER CORPORATION'S MOTION TO STRIKE TIIE STATE OF VERMONT'S l 50-CALLED "REBU' ITAL" TESTIMONY '

The licensee, Vermont Yankee Nuclear Power Corporation (" Vermont Yankee"), moves that the so-called " rebuttal" testimony submitted by the State of Vermont and its witness, Mr. William K.' Sherman, be stricken for. i failure to comply with this Board's Order of January 12, 1989. In support of this motion, Vermont Yankee says as follows:

1. This Board's order of January 12, 1989, required that the "testi-mony" -- that is to say, "all of the facts, data, and arguments which are known to the party at such time and on which the party proposes to rely at the oral argument either to support or to refute the existence of a genuine and substantial dispute of fact," 10 C.F.R. Q 2.lll3(a) -- be submitted by February 28, 1939. The State of Vermont submitted nothing on that date.

2. Rather, supposedly under the rubric of " rebuttal," the State of I Vermont has now submitted its entire case,1 which consists of the proposi-l Consisting of " State of Vermont's Brief and Argument in Responding and in Opposition to Memorandum of Vermont Yankee Nuclear Power.

Corporation on the Existence of any Genuitie and Substantial Question of Fact Regarding Contention 1" and " Sworn Written Testimony of William K.

Sherman, Nuclear Engineer, State of Vermont, in opposition to the Testimony of Donald A. Reid, et. al., Vermont Yankee Nuclear Power Corporation, 8903290131 890320 g DR ALOCK 0500 1 L______ - _ - i

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i tion that ca single failure of a power supply could deny flow to one of the '

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spent fuel. pool coc!ing system' heat exchangers, in. which event the "one j

. pump-two heat exchanger" scenario would not qualify as the most critical q single failure. for determining the adequacy of the spent fuel pool cooling r L" system's cooling capacity.2 This theory, however, does not depend upon anything contained in.the direct ; testimony of Vermont Yankee, since the - '

position of Vermont Yankee that the "one pump-two heat exchanger"-

scenario represents the most critical single failure mode of. the spent fuel y pool has been clearly stated in the record several times,8 'as well as because  !

this theory of the State' of Vermont could have been advanced regardless of the position of Vermont Yankee. Nor does the submission of the State of j Vermont and Mr. Sherman~ depend upon' any fact which the State of Vermont  ;

and Mr. Sherman to which did not have access in order to make a' timely W filing.

3. Whether or not intended as a means of unfairly prejudicing the i 1

ability of an adverse party to respond, the tactic of saving one's entire case until " rebuttal" is not consistent with this Board's order of January 12, 1989, I

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. submitted pursuant to 10 CFR 2.lll3(a)." These are the documents that Vermont Yankee requests be stricken.

2 Like the NECNP witnesses, the State of Vermont witness treats the

loss of power hypothesis (resulting in a loss of one spent fuel pool cooling system pump, one RBCCW pump and two Service Water system pumps) and the simple loss of one spent fuel pool pump hypothesis as different events.

As the Rebuttal Testimony of the Vermont Yankee witnesses shows, however, it is the loss of power event that results in the loss of one spent fuel pool ,

cooling system pump, and the single failure analysis performed by Vermont t Yankee included all of the effects of this hypothesis. As concluded by this ' i analysis, the only effect of the hypothesis with an impact on spent fuel pool I cooling system capacity is the loss of the spent fuel pool cooling system pump.

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3 E.g., Licensee's Response to "NECNP's Afolion to Compel . . . . at 6 n.6 (September 15, 1988); Licensee's Response to ' Joint biotion of the Com- ,

monwealth of Afassachusetts and New England Coalition on Nuclear [Pollu- j

. tior,) for an Order Staying the Effectiveness of License Amendment No.  !

104 . . . . at 19 n.16 (July 7,1988); ofemorandum of Vermont Yankee Nuclear Power Corporation in Response to blemorandum and Order of 10/:4/88 and Afotion for Leave to Fi/e the Same at 2 n.2 (November 10, 1988). See also the letter of Vermont Yankee's counsel to the Board and parties responding, as directed to certain inquiries propounded by the Board during the tele-phonic prehearing conference of January 10, 1989. l l

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nor consistent with the provisions of.10 C.F.R., Part . 2, Sub-part. K, nor conducive to a meaningful and orderly resolution of the issues before the Commission, and for these reasons such an ambush tactic cannot be condoned or excused. . . _ . __ _ ,

4. The State of Vermont will suffer no prejudice from the striking of ,

its submissions, inasmuch as NECNP and its witnesses, having made the same j mistakes as Mr. Sherman, have submitted the same thesis to the Board.4 Wherefore, Vermont Yankee moves that the submissions of the State of -

Vermont under date of March 17, 1989, be stricken.-

ly submitted,

) '

i <.. o John A. Ritsher. -

-g R. K. Gad III Ropes & Gray One International Place l Boston, Massachusetts 02110  !

Telephone: 617-951-7000 i March 20,1989.

4 Like the NECNP witnesses, the State of Vermont's witness attempts some clear evasions of this Board's Memorandum and Order (NECNP Motion to Compel) of September 27, 1989, by injecting testimony regarding seismie qualification, environmental qualification and similar issues. Since, as this j Board has previously ruled, tilese issues are not within the scope of Conten-  !

tion 1, the striking of this evidence cannot as a matter of law prejudice the offering party.

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