ML19241B085

Fl Power & Light Response to 790509 Order in Which Applicant & NRC Were Requested to Submit Position Re Petitioner MP Oncavage 790502 New Contentions.Petitioner Requests Do Not Meet Requirements.Certificate of Svc Encl

ML19241B085
Person / Time
Site:	Turkey Point
Issue date:	05/21/1979
From:	Bauser M LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7907110668
Download: ML19241B085 (13)

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,S NRC PUBLIC DOCIT li ac. ; r UNITED STATES OF AMERICA e 4 'iJ -

NUCLEAR REGULATORY COMMISSION g4 DEFORE THE ATOMIC SAFETY & LICENSING BOARD In the Matter of )

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

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

) Repairs)

)

RESPONSE OF FLORIDA POWER & LIGHT COMPANY TO BOARD ORDER OF MAY 9, 1979 INTRODUCTION During the prehearing conference on May 2, 1979, Petitioner Mark P. Oncavage moved orally for leave to sub-mit an entirely new set of 19 contentions, many with numerous subparts, to supersede those offered earlier.

(Tr. 65, 87-90, 98, 10 8) .* / The Board reserved ruling on the motion. (Tr. 121.)

Later, however, on :iay 9, 1o79, the Board issued an

" Order Relative to Petitioner's Contentions Submitted on May 2, 1979." In that Order, the Board noted that altnough both Florida Power & Light Company (FPL) and the NFC Staff had opposed the motion at the prehearing conference on the

• / Reference to the transcript of the Prehearing Conference will be (Tr. _

the transcrip'

.) . The " List of contentions" is bound into following Tr. 122.

7 9 0 7 1 1 0 6'ob" . 7, 7,

grounds of untimeliness, it was not now disposing of the motion on such grounds. The Order then stated:

"In our consideration of 2. 714 (a) (1) (iii) ,

relative to 'the extent to which the Peti-tioner's participation may reasonably be expected to assist in developing a sound record', we believe it necessary to include a review of the new contentions. Before we proceed in our review, we think it appro-priate to give FP&L and the NRC Staff an opportunity to submit their positions on what the expectations are that the new contentions may contribute to a sound record. We will expect a rceponse from FP&L ten (10) days and the Staff fifteen (15) days from the receipt of this order."

This response of FPL is se..aitted pursuant to that provision of the Order. In essence, the discussion below demonstrates that the proliferation of issues represented by Petitioner's new List of Contentions, coupled with his own limited knowledge and techr.

• cal resources, make it more

'rdikely than ever that his participation would " assist in developing a sound record." This conclusion is reinforced because the new contentions indicate that, even at this late date, Petitioner appears still not to have familiarized him-self with essentir.1, available inforr n. The response also discusses the untimeliness of the ...otion and demonstrates why, for that reason alone, it should be denied.

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3-ARGUMENT Petitioner's Ability to Contr_>ute The Order of May 9, 1979 asks that FPL submit to the Board its posi+. ion "r.t what the expectations are that the new contentions may contribute to a sound record."

In this connection che Board refers tu 10 CFR S 2. 714 (a) (1) (iii) ,

which requires that an evaluation of an untimely petition consider and balance , inter alia, "1he extent to which the petitioner's participation may reasonably be ex-pected to assist in developing a sound record."

Petitioner's occupation is that of a mtsic teacher (Tr. 105.) Since September 1976 ha has been pursuing a Bachelor's degree in " environmental studies" at Florida International University. (Tr. 22, 105.) There is no indi-cation, however, that -- either by virtue of formal training or experience -- Petitione could be able to contribute materially to a proceeding concerning the proposed steam generator repair. In fact, based on a number of the conten-tions, just the caposite is likely to be true since they re,eal that he apparently lacks even a basic understanding of the activity in question. As did the revised petition n ^ n.

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of March 18, 1979, in 55 3(a), 3(b), 6, 7, 9, 10, 11, 13, 15 and 16 Petitioner again requests factual information relevant to proposed monitoring procedures, anticipated

• i releases, alte rnative s , and comparative costs.-' In addition, the new " List of Contentions" requests factual information about anticipated post-repair steam generator performance (5 14) and installation of non-nuclear com-ponents not the subject of the proposed license amendments (5 17).

As noted in'our previous response of March 30, 1979, these general subjects have been addressed in the Stean Generator Repair Report (SGRR) and its various revisions.

See, e.g., Steam Generator Repair Report, S 3.3.3, Ques-tions 33, 34, 35 and 41, App. A, Question 1, App. B (con-trol of airborne radioactivity and surface contamination);

S 3.3.4, Question 44, App. A, Question 2, App. B (supple-mental personnel monitoring requirements); Questions 30, 32, App. A, Question 6, App. D (liquid releases); S 6.5 (radiological monitoring) . See also Questions 46, 47, 48, App. A, Questions 1, 2, 3, App. D. (storage of replaced

-*/ FPL also no:_7 that a number of the contentions raised by Petitioner, e.g. , these e:Tcdled in 55 1, 4 and 19 concerning continued operation of the Turkey Point units prior to shutdown for the steam generator repairs, do not " raise . . .

claims involving matters arising directly from the proposed change" and are, therefore, beyond the scope of the instant proceeding. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) , ALAB-245 8 AEC 873, 875 (1974).

In fact, every one of Petitioner's so-called " contentions" is defective and FPL assumes that, should 1 become appropria.e, an opportunity would be afforded for parties to discuss these deficiencies in cetail.

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steam generators); Questions 2, 6, App. D. (monitoring of stored replaced steam generators); Question 30, App. A (storage and processing or primary coolant); S 3.3.6.3, Questions 30, 32, App. A (storage, processing and dis-charge of laundry waste water) ; S7 (alternatives) and S8 (cost-benefit analysis); Questions 20-29, App. A (post-repair steam generator performance) . This information is and has been available to the public including Petitioner.

The continued failure of the Petitioner to take this information into account in formulatint contentions is a further indication of the unlikelihood . hat he would con-tribute to " developing a sound record.'

As for technical support, Petitioner's counsel stated that he "probably will be able to present witnesses who have technical expertise and are able to address the issues presented for review before the Licensing Board." (Tr. 47.)

At least Petitioner " [c]ertainly . . . intends to do this and it is his hope and expectation that he will be able to do it." (Id.) However, a mere " probability" of supplying expert witnesses is legally insufficient to demonstrate the kind of commitment necessary to find that Petitioner can contribute to the development of a sound record. Detroit Edison Company (Greenwood Energy Station), ALAB-476 7 NRC 759 r

R

(1978). See also, Long Island Lighting Company (Jamesport Nuclear Power Station), ALAB-292 2 NRC 631, 649 (1975).

There has been no adequate showing by this Petitioner.

The record reflects that to date Petitioner "or one of his designates or assistants" has contacted two " national" po-tential witnesses, MHB Technical Associates and Robert Pollard, and two " local" ones, Walter Goldberg, a Ph.D. in biology from Florida International University, and Dr. Ray-mond McAllister, from the Department of ocean Engineering at Florida Atlantic University. (See Tr. 49-52.) No evidence was presented on tha nature of the contacts, the scope of any testimony relative to any contention, original or revised, or the relationship of any testimony to the steam generator repairs.

Petitioner merely suggested this list of " individuals

. . . may grow" and that " contacts have been made in each case and explorations made as to whether these individuals could assist in developing this hearing record." (Tr. 51.)

How or when the list would grow was not explained. Nor is there any indication that the " explorations" to date with potential witnesses included a review of the revised contentions. Indeed, the record suggests the contrary.

(Tr. 65.) Moreover, there has been no showing that any of the potential witnesnes has ever reviewed the SGRR, or is

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in any way familiar with the Turkey Point plant or the details of the proposed activity for which the license amendments are sought by FPL.

Of those witnesses contacted, only two are spparently

" firm," Drs. Goldberg and McAllister. (Tr. 67.) These men, however, do not posses qualifications or expertise in areas of discipline appropriate to addressing the new contentions. Dr. Goldberg has a Ph.D. in oceanography and "would address the impact on biota of radionuclides on marine organisms and marine environments. " (Tr. 50.)

Dr. McAllister is a hydrologist and "has expertise in the area of aquifer permeability, the impact of radiation re-lease, or hurricane or flood on the water table ind water systems in this region." (Tr. 51.) The new contentions do nc t pertain to matters to be addressed by witnesses with the descriced expertise. But more than that, how the ex-pert: se of these witnesses relates to the proposed steam gene rator repairs remains unstated.

Moreover, additional statements, made through Petitioner's co unse l. , indicate that Petitioner will not make the requisite commitment for experts necessary for the development of a sound record on the revised contentions. Indeed, Petitioner made it clear that he might not present a case with any n1 1

witnesses. Through his counsel, he stated that he felt that " mere submission on the part of an intervenor of witnesses shouldn't be a criteria for granting status to intervene." (Tr. 67.) Rather, an intervenor could pre-sent his case through cross-examination and discovery, that is, it wouldn't have to be an affirmative case, but it could be an exploration of the areas considered." (Tr.

68 (emphasis added).) This apet ach, of course, would go far toward eliminating the burden now facing the Petitioner under NRC rules.' l' also raises serious doubts about the quality of any poesible contribution by Petitioner to the development of a suand record. Further, Petitioner has also expressly rejected the NRC Staff's suggestion that a s ub-sequent submission be made by him on the commitments which he has or may receive from prospective witnesses and the substance of thei- testimony. (Tr. 59-60.) Petitioner made it clear that no more information would be provided to the Board:

"We don't feel that the Board needs to delay their consideration of this case after today. We feel that what is going to be presented nere t'ais morning is a sufficient basis for a decision of this Paard, no matter where the chips fall

. . . . (Tr. 62.)

" [W] e have satis fied any reasonable requirement that might be exacted from us as to the nature and extent of expert witness testimony that we would provide at a forthcoming hearing." (Tr. 63.)

"But I think we have done enough on that point." (Tr. 69.)

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Timeliness The matter of timeliness is an important one -- parti-cularly in view of the history of this proceeding -- and should not be overlooked.

As has been demonstrated numerous times already, che Peti--

tioner's request for a hearing came over one year late, and absent any showing of good cause for untimeliness. See, e.g., Licensee's Eesponse to Untimely Request for Hearing of Mark P. Oncavage (Mar. 9, 1979); NRC Staff Response for Leave to Intervene Filed by Mark P. Oncavage (Mar. 1, 1979).

This deficiency has been compounded by an untimely motion for leave to amend, with no attempt by Petitioner to excuse that tardiness as required by 10 CFR S 2. 714 (a) (3) . Peti-tior.er's counsel has only stated that:

i "Last night, quite late, because as I said earlier I just returned from Wash-ington, D. C. where I filed a case in the U. S. Supreme Court, I went over these contantions with Mr. Oncavage. In a brief period of time I suggested re-writing them, and we have some contentions rewritten here which I wish now to read into the record of this hearing. These are the contentions that Mr. Oncavage seeks to raise in this proceeding. With the Board's permission, I would like to read them now."

(Tr. 65.)

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- if FPL respectfully submits that the requirements of

2. 714 (a) ( 3) have not been et, and that the motion for leave to amend should be denied for this reason alone.

CONCLUSION As demonstrated above, and assuming for the sake of of argument that the Board were to grant the instant motion and accept some of the newly sucatitted contentions , there has been no showing whatever that Mr. Oncavage's partici-pation would lilely " assist in developing a sound record."

Petitioner is unable to demonstrate how he, or expert wit-nesses presented by him, could develop any record which involves the revised contentions. Commitments by experts to assist Petitioner are tenuous at best, and their areas of expertise do not coincide with matters which Petitioner calls " contentions" and about which he wishes to litigate.

Petiticner intends to make his case, if at all, by " cross-examination. "

Further, as noted by the Board in the Order of May 9, 19 79, "[T] he board is faced with an evaluation of a late petition." In addition, the Board has now been presented with an untimely motion for leave to amend that late peti-tion, with no attempt by Petitioner to excuse that untime-liness as required by 10 CFR S 2.714 (a) (3) .

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We respectfully submit that the requirements of

2. 714 (a) ( 3) have not been met, and that the motion fcr leave to amend should be denied.

We also submit that the Board, in its evaluation of the pending untimely petition, must find that the factor described in 10 CFR S 2. 714 (a) (1) (iii) weighs against Petitioner.

Respectfully submitted, Of Counsel: .

STEEL, HECTOR & DAVIS LOWENSTEIN, NEWMAN, REIS, Scutheast First National AXELRAD & TOLL Bank Building 1025 Connecticut Avenue, N.W.

Miami, Florica 33131 Washington, D.C. 20036 Telephone: 305/577-2864 Telephone: 202/862-8400

)b. f' By: 1

• h MICHAEL A. BAUSER Dated: May 21, 1979

UNITED STATES OF AiERICA NUCLEAR REGULATORY COMMISSION

,BEFORE THE ATOMIC SAFETY & LICENSING BOARD In the Matter of: ) Docket Nos. 50-250-SP

) 50-251-SP FLORIDA POWER & LIGHT CC:1PANY )

) (Proposed Anendments to Facility (Turkey Point Nuclear Generating ) Operating License to Permit Units Nos. 3 and 4) ) Steam Generator Repair)

)

CERTIFICATE OF SERIVCE I HEREBY CERTIFY t-hat copies of the " Response of Florida Pcwer

& Light Company to Boarc Orcer of May 9, 1979" in the above captioned matter were served on the following by deposit in the United States mail, first class, properly stamped and addressed, this 21st day of May, 1979.

Eliz abe th S . Bowers, Esquire Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Oscar H. Paris Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atcmic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20553

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Dr. David B. fiall Norman A. Coll, Esq.

Steel, Hector & Davis 400 Circle Drive Sante Fe, New Mexico 87501 Southeast First National Bank Building Miami, Florida 33131 Mr. Mark P. Oncavage 12200 S.W. 110 Avenue Miami, Florida 33176 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (original and 20 copies)

Guy Cunningham, Esquire Steven C. Goldbe rg , Esquire U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C. 20555 V

/ < . s--r, MICHAEL A. BAUSER LOWENSTEIN, NEWMA'I , REIS, AXELFAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, D.C. 20555 Telephone: 202/862-8400 Dated: May 21, 1979

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