ML17339B057

Amend to 800422 Response to Request for Production of Documents,Per ASLB 791011 Order.Chapter 4 of Revision 7 to Steam Generator Repair Rept Revised Re Return to Svc Testing.W/Certificate of Svc.Related Correspondence

ML17339B057
Person / Time
Site:	Turkey Point
Issue date:	04/28/1980
From:	Coll N FLORIDA POWER & LIGHT CO., STEEL, HECTOR & DAVIS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8005280168
Download: ML17339B057 (21)

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. BEFORE THE ATOMIC SAFETY AND LICENSING BO aS, (QSD In the Matter of ) Docket, Nos. 50-250-SP

) 50-251-SP FLORIDA POWER 6 LIGHT COMPANY )

) (Proposed Amendments to (Turkey Point Nuclear Generating ) Facility Operating

'Units Nos. 3 and 4) ') Licenses to Permit, Steam

) Generator Repair)

)

)

Al&NDi~KNT,TO LICENSEE'S RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS On April 22, 1980, Licensee served "Licensee's Response to Request for Production of Documents." Paragraph 6 of that pleading should be amended as follows:

6. As previously indicated in responses served by FPL r

1-31-80 to Request 1-14, the Board has ordered FPL to provide info~ation either in a 'revision to the SGRR or in testimony concerning the tests that are planned to assure containment building and. reactor'coolant system integrity following the repair. On April 1, 1980, Licensee served the'oard and the parties with copies of Revision 7 to. the Steam Generator Repair Report and a copy of a letter of transmittal. dated March 28, 1980 from FPL to the NRC Staff. As indicated on page two of that letter of transmittal, "Chapter 4 of. the SGRR has been revised to include additional details on the return to.service testing

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which will be done to verify the integrity of the. reactor coolant system and the containment building. This information is in response to the Atomic Safety and Licensing Board Order dated October ll, 1979;"

Respect fully submitted.,

STEEL, HECTOR & DAVIS Co-Counsel for Licensee 14th Floo Southeas First National Bank Building Miami, F 33131 By'O A. COLL DATED: April 28, 1980 cc: See attached Certificate of Service.

2.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETYAND LICENSING BOARD In the Matter of )

Docket Nos. 50-250-SP 50-251-SP FLORIDA POWER & LIGHT COMPANY

)

(Proposed Amendments to (Turkey Point Nuclear Generating )

Facility Operating Units Nos. 3 and 4) Licenses to,Permit Steam

) Generator Repair)

)

CERTIFICATE OF SERVICE I HEREBY CERTIFY- that copies of the attached "Amendment to Licensee's Response to Request for Production of Documents," captioned in the above matter, were served on the following by 'deposit in the United States mail, first class, properly stamped and addressed, on the date shown below:

Eli..",abeth S. Bowers, Esquire Chairman Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Oscar H. Paris Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555

'Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555

Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Mark P. Oncavage 12200 S. W. 110th Avenue Miami, FL. 33176 Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, DC 20555 Steven C. Goldberg, Esquire office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, DC 20555 Neil Chonin, Esquire Law Offices of Neil Chonin, P.A.

Counsel for Intervenor New World Tower Building, 30th Floor 100 N. Biscayne Boulevard Miami, FL. 33132 Henry H. Harnage, Esquire Counsel for -Intervenor Peninsula'ederal Building, 10th Floor 200 S. E. First. Street

'Miami, FL. 33131 Harold F. Reis, Esquire Steven P. Frantz, Esquire

'xelrad Lowenstein, Newman Res. s, Co-counsel for Licensee 6 Toll 1025 Connecticut Avenue, NW Washington, DC 20036 NO A. COLL STEEL, HE TOR 6 DAVIS 1400 South ast First National Bank Building l Miami, FL. 33131 Telephone: (305) 577-2863 DATED: April 28, 1980

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

) Docket Nos." 50-250-SP

) 0- 51-S FLORIDA POWER & LIGHT COMPANY )

) (Proposed Amendments to (Turkey Point Nuclear Generating ) Facility Operating License Unit Nos. 3 and 4) ) to Permit Steam Generating

) Repairs)

LICENSEE'S RESPONSE TO MOTION TO AMEND CONTENTIONS On March ll, 1980, Mark Oncavage (Intervenor) moved to amend Contention 1 to include a Contention 1B. Contention 1 asserts that an Environmental Impact Statement (EIS) must be prcparcd prior to the issuance of operating license amen4~onts .

authorizing the repair of the steam generators of Turkey Point Units 3 and 4. The Intervenor's proposed Contention 1B states:

The application of Florida Power and Light for an amendment to its facility operating license involves a material alteration of a licensed facility which requires a con-struction permit to issue prior to the issuance of the amendment, which in turn requires the preparation of an environmental impact statement.

The Licensee respectfully submits that this motion should be denied.

Although the proposed motion refers to the requirement for a construction permit, the language of, the motion seems to indicate that the only relief requested is the preparation of an EIS- The Intervenor proposes to amend Contention 1, which is solely related to the preparation of an EIS, rather

than to add an independent contention, and states that the instant motion simply presents "grounds different" from those earlier asserted concerning the need for an EIS. (Motion, p. 3)

At the time the Intervenor filed his motion, he may not have been aware of several events which have rendered 'moot the contention that the preparation of an EIS is required. On March 4, 1980, the Commission issued an order which required the NRC Staff to prepare an EIS for the steam generator repairs 1/

for Surry Unit 1. In a letter dated March 6, 1980, to which the motion does not refer, the NRC Staff informed this Board that it intends to prepare an EIS for the Turkey Point repairs.

Since the Staff's action provides the relief requested by Contention 1 and proposed Contention 1B, they are both moot.

2/

Consequently, the instant motion should be denied.

The foregoing should dispose of the motion. However, the proposed contention states that there is here involved "a material alteration of a licensed facility which requires a construction permit to issue . . . ." As we demonstrate below, if the motion is read as suggesting that a construction permit is required to make the steam generator repairs, it is 1/ Vir inia Electric and Power Com an (Surry Nuclear Power Station, Units (March 4, 1980).

1 and 2), CLI-80-4, ll NRC 2/ It would also be appropriate Contention l.

for the Board to dismiss

a late filing which lacks good, cause. Therefore the merits need not be addressed. However, the statement seems to be based on so significant a misreading of the regulations as to justify some comment.

The motion states:

If an application for an amendment to a license involves a material alteration to a licensed facility, a construction permit will be issued prior to the issuance of the amendment to the licensee. 10 C.F.R.

g50.91. Alteration, as used in that regulation, means a change in a technical specification or a change which involves an unreviewed safety question.

(Motion, p. 5)

This is incorrect. Without referring to 10 CFR 5 50.59, the statement confuses that section with the material 1/

alteration section, 10 CFR 5 50.91. Section 50.59 permits the holder of an operating license, among other things, to make 1/ The motion also confuses "unreviewed safety question" with another term, "unresolved safety issue."

See Motion, p. 6. "Unresolved safety issues" are defined as those generic safety issues whose safety significance in individual plants is such that the issue does not prohibit continued operation or licen-sing actions while the Commission's generic review is progressing. "NRC Program for the Resolution of Generic Issues Related to Nuclear Power Plants,"

January 1978, NUREG-040, p. viii; "Identification to Nuclear of Unresolved Safety, Issues Relating Power Plants," January 1979, NUREG-0510, p. 4. The Commis-sion is required to develop a plan to implement cor-rective measures for unresolved safety issues and to submit this plan to Congress pursuant to Section 210 of the Energy Reorganization Act of 1974 as amended, 42 U.S.C. 5 5851. If the Intervenor is suggesting that an unresolved safety issue is equivalent to a material alteration, we are aware of no basis for support of such a novel proposition, and the Inter-venor has offered no evidence of his own.

0 changes in the facility without authorization from the NRC, but requires that an application for an operating license amend-ment be made if what is proposed involves either "an unreviewed safety question," as defined in the regulation, or a change in technical specifications. Most operating license amendments are issued only because a change in technical specifications or an unreviewed safety question is involved. Nothing in section 50.59, 59.91, in Commission practice or in precedent supports the implication that every change involving an unre-viewed safety question or a change in technical specifica-tions is also a material alteration which requires the issu-1/

ance of a construction permit. In fact, the Commission has consistently issued license amendments for changes in facilities which involved unreviewed safety questions without requiring a construction permit under 5 50.91. Even though amendments may involve extensive repairs, changes or additions, only on the rarest occasions has the Commission considered a "material alteration" to be involved. See The motion (pp. 3, 6) refers to 38 Fed. Reg. 22796 (1973) and 39 Fed. Reg. 10554 (1974) in this context. Neither of these notices defines or interprets "material altera-tion"; they merely state that under g 50.59 a change in a facility which involves an unreviewed safety question requires the issuance of an amendment, pursuant to 5 50.90. The Intervenor's reliance upon these Federal Register notices is wholly misplaced.

Portland General Electric Co. (Trojan Nuclear Plant) F 1/

LBP-77-69, 6 NRC 1179, 1183 (1977) .

.In fact, we have been able to discover only two cases in which an. applicant for an amendment was required to seek a construction permit because a material alteration within the meaning of g 50.91 was found to be involved., The first case, referred to in the ~Tro'an decision, involved an appli-cation by the University of Maryland for authorization to replace its Allis-Chalmers control rods, n their drive meeha-nism, the control room panels, and instrumentation with those of a Triga design. This "change essentially rendered major portions of the original safety analysis for the facility inapplicable to the modified facility." 6 NRC at 1183. The second involved a request by Nuclear Fuel Services (NFS) to expand the capacity of its fuel reprocessing plant at Nest Valley from 300 MTU/year to 750 MTU/year, i.e., by 2 1/2 1 / In ~Tro an, the Licensing Board held that'odif'ication of a spent fuel pool did not constitute a material alteration of a facility. Other operating license amendments not deemed to constitute material altera-

'ions include change in the fuel assembly lattice, Vermont Yankee Nuclear Power Cor oration (Vermont Yankee Nuclear Power Station), Notice of proposed amendment 39 Fed. Race. 24046 (June 28, 1974); Boston Edison Com an (Pilgrim Nuclear Power Station, Unit 1),

Notice of proposed amendment 39 F~ed. Re . 4798 (Feh. 7, .

1974); Nia ara Mohawk Power Cor oration (Nine Mile Point, Unit No. 1), Notice of proposed amendment 39 F~ed. Re . 5528 (Feh. 13, 1974); an increase in authorized power, Carolina Power and Li ht Com an (H.B. Robinson, Unit No. 2), Notice of proposed amendment 39 Fed. Reed.

15061 (April 30, 1974); and, as we point out below, repair of steam generator lower assemblies.

times. Both of these modifications entailed extensive con-struction and significant changes in the design of the faci-lity. The Commission found that the NFS amendment 1/

would "result in a substantially different facility," and "the Final Safety Analysis Report (FSAR) wh'ch served as the basis for the initial license and the technical specifica-tions . . . would, for all practical purposes, no longer 2/

be suitable."

Xf the steam generator repairs are compared to these two modifications, little similarity can be found. The E

repairs will not result in a "substantially different facil-ity," nor will they significantly alter the design of the plant or render "major portions of the original safety analy-sis for the facility inapplicable to the modified facility."

The steam generator repairs are essentially major maintenance operations which do not constitute the type of substantial alteration which was present in both the NFS and University of Haryland cases. Basically, the repairs entail replacement of defective parts with new parts of a similar design. To the extent that the repaired steam generators will utilize a slightly different design, this design change will have 1/ 38 Fed. Reg. 31985 (Nov 30I 1973) ~ NFS later withdrew its application for an amendment for reasons not relevant here.

2/ Letter from S. H. Smiley (AEC) to Robert N. Hiller (NFS),

dated May 25, 1972.

no affect upon the safety analysis performed in the Turkey 1/

Point FSAR.

Directly in point is the holding in Vir inia Electric and Power Co. (Surry Power Station, Units 1 and 2), DD-79-19, 10 NRC 625, 654-661 (1979). The petitioners in that case argued inter alia that the amendment authorizing the Surry steam generator repairs was issued in violation of NRC regu-lations, because the repairs constituted a material alteration of a facility under 5 50.91 for which no construction permit was obtained. The Director of Nuclear Reactor Regulation rejected this contention and explicitly held that the steam generator repairs were not a material alteration. The Com-mission has declined to review this aspect of the Director's decision. CLI-80-4, ll NRC , slip op. p. 2 (March 4, 1980).

There is, moreover, doubt. as to the Board's jurisdiction to consider a contention which requests that a construction permit be obtained pursuant to 5 50.91. It is the function of the NRC Staff to review an application and determine whether it is acceptable for docketing. 10 CFR 5 2.101.

If the application is acceptable, a notice of hearing or of proposed action will be issued by the Commission. 10 CFR gg 2.104 and 2.105. It is this notice which designates 1/ See SGRR 5 5.1; SER 55 3.3 and 3.4.1.

the proceeding as a construction permit proceeding under 1/

5 50.91 or as an operating license amendment proceeding, and it is this notice which defines the jurisdiction of the licensing board. See Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n. 5 (1979). The notice for the Turkey Point steam generator repairs specified that this proceeding .would be an amendment. proceeding. 42 Fed. Reg. 62569 (1977).

Although we believe it might be helpful to attempt to clarify the misconceptions evidenced by the motion, we do not believe it, necessary for the Board to address the issue.

Even if the motion is interpreted as requesting that the construction permit be made a contention and we 1

need for a submit it should not be so interpreted -- the Intervenor has not established good cause for the late filing of such 2/

a supplemental contention, as required by 10 CFR g 2.714.

Essentially, the Intervenor has attempted to justify his 1/ See notice in Nuclear Fuel Services Inc. (West Valley 2/ At several places during the Intervenor's discussion of the "Subject Matter of the Proposed Amendments to the Contentions," the Intervenor refers to testimony or evidence which he intends to introduce in a hearing on the repairs. This evidence is irrelevant to good cause for the late filing and to the material alteration question.

tardiness on the grounds that the Licensee's responses to the Intervenor's interrogatories has provided him with new information upon which to base his proposed contention.

(Motion, p. 2) However, the Intervenor only cites the responses to five interrogatories, none of which are at all relevant to a showing of good cause.

The Intervenor first references the answers to Inter-rogatories 1-7 and 1-8, which state that SGRR 5 2.2 contains FPL's basis for concluding that the repaired steam generators will not undergo degradation. Since the Intervenor had access to the SGRR when he first filed his contentions, these responses can hardly be termed "new information" suf-ficient for a showing of good cause. Moreover, the responses provided no new information regarding the design of the repaired steam generators. At a minimum, a "material altera-tion" requires a change in facility design. Since the responses did not alter the design specifications in the SGRR, they cannot be utilized to establish good cause for an untimely contention regarding a material alteration of a facility.

The Intervenor also references the answers to Interroga-tories 6-11, 6-21, and 6-35. However, all of these interroga-tories pertain to the steam generator storage building. Since the Intervenor has been aware of the plans to build a storage building since the beginning of this proceeding, he cannot claim that its construction is "new information" sufficient to constitute good cause for this untimely motion.

10 In short, the Intervenor has relied upon the responses to his interrogatories as his "good cause" for the late filing, but has not shown why he was incapable of raising this same contention with his previous filings. In the absence of a demonstration of inability to have proffered this contention in a timely fashion, the Intervenor has not established good cause.

Accordingly, the Licensee requests that the Board deny the Intervenor's motion as moot. In the alternative, it should be denied because the proposed contention is late filed without good cause.

Respectfully submitted, Harold F. Reis r

Steven P. Frantz LOWENSTEINg NEWMAN'EISE AXELRAD & TOLL 1025 Connecticut Avenue,, NW Washington, DC 20036 Telephone: (202) 862-8400 Norman A. Coll STEEL, HECTOR 6 DAVIS 1400 Southeast First National Bank Building Miami, FL 33131 Telephone: (305) 577-2863 Dated: March 26, 1980

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-250-SP

) 50-251-SP FLORIDA POWER 6 LIGHT COMPANY )

) (Proposed Amendments to (Turkey Point Nuclear Generating ) Facility Operating License Unit Nos. 3 and 4) ) to Permit Steam Generating

) Repairs)

CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the attached "Licensee's Response to Motion to Amend Contentions," dated March 26, 1980, captioned in the above matter, were served on the fol-lowing by deposit in the United States mail, first class, properly stamped and addressed, on the date shown below:

Elizabeth S. Bowers, Esp.

Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Oscar H. Paris Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission

.Washington, DC 20555 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555

Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Steven C. Goldberg, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Mark P. Oncavage 12200 S.W. 110th Avenue Miami, FL 33176 Neil Chonin, Esq.

Law Offices of Neil Chonin, P.A.

Counsel for Intervenor New World Tower Bldg., 30th Flr.

100 N. Biscayne Blvd.

Miami, FL 33132 Henry H. Harnage, Esp.

Counsel for Intervenor Peninsula Federal Bldg., 10th Flr.

200 S.E. First Street Miami, FL 33131 Norman A. Coll, Esq.

Steel, Hector 6 Davis 1400 Southeast First National Bank Building Miami, FL 33131 HAROLD F. REIS LOWENSTEIN g NEWMAN g REI S AXELRAD 6 TOLL 1025 Connecticut Avenue, NW Washington, DC 20036 Telephone: (202) 862-8400 Dated: March 26, 1980