ML19254B143
| ML19254B143 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 08/20/1979 |
| From: | Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7909240395 | |
| Download: ML19254B143 (11) | |
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UNITED STATES OF AMERICA flUCLEAR REGUALTORY COMMISSION 8/20/79 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD h-$' /,
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Docket No. 50-312 DISTRICT
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RESPONSE OF NRC STAFF TO CONTENTIONS OF INTERVENORS AND TO ISSUES OF INTERESTED STATE
Background
By its Prehearing Conference Order of August 3, 1979, the Licensing Board, inter dia
- admitted the Friends of the Earth, Environmental Cot.acil of Sacramento, and the Original SMUD Ratepayers Association (jointly referred to hereafter as "F0E") and Messrs Gary Hursh and Richard D. Castro as Intervenors in this proceeding;
- admitted the California Energy Commission (" CEC") as a repre-sentative of the State of California under 10 CFR 82.715(c);
and
- directed all parties to meet and confer regarding possible stipulation of c 20,1979_ggtentionsandtosubmittotheBoardby August
' proposed stipulations, where achieved, and statements of contentions as to which agreement has not been achieved.
The meeting directed by the Board to'6k place on August 1, 1979 following the prehearing ccnference,with all parties represented. The NRC Staff and Licensee explained to the Intervenors and the CEC their objections to various of the 1/ The Board c'irected that it receive the proposed stipulations and the statements of the parties by August 20, 1979. Tr. 41.
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contenticns and issues raised by them, and the Staff indicated which contentions and issues it believed would be acceptable, if further clarification and specifi-cation was provided.
Intervenors and the CEC agreed to consider what revisions could be made to s'atisfy the objections of the Staff and Licensee.
Standards For Acceptability of Contentions I:n considering the proper standard for the formulation of a contention, the law is clear t'iat an acceptable contention must fall within the scope of the Commission's 2/
notice ~ and be set forth with basis and specificity in accordance with the require-ments of 10 CFR !2.714(b) and applicable Cormiission case law. See, e.g.,
Duquesne Light Co. (Beaver Valley, Unit 1), ALAB-109, 6 AEC 243 (1973); Northern States Power Comoany (Prairie Island, Unit Nos. I and 2), ALAB-107, 6 AEC 188, 194 (1973), aff'd, CLI-73-12, 6 AEC 241 (1973), aff'd,BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir. 1974). Before granting a petition to intervene, the Board must determine that there is "at least olie relevant contention which [is] set forth with reasonable specificity and some basis assigned for it."
Prairie Island, suora, ALAB-107, 6 AEC at 194; BPI v. Atomic Eneray Commission, suora 502 F.2d at 429 (D.C.
Cir. 1974). A major reason for requiring the articulatiori of specificity and basis is to help assure that other parties are put on sufficient notice of what they will have to defend against and to ensure that the hearing process is invoked solely for 3/
the resaltuien of concrete issues.-
2/ Pursuant to the Board's direction, we have deferred briefing the question of
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the scope of this proceeding until August 27, 1979.
In this response we have
- identified those contentions which we find acceptable;
- identified those cententions which we find to be objecticnable and stated the basis for our objection (including that particular cc:1tentions are beyond the scope of the proceeding); and
- briefed the bases for our objectionr, (other than the objection as to scope).
3/ Philadelphia Electric Ccmoany (Peach Bottcq, Units 2 and 3), ALAB-216, 8 AEC 13, 20, 21 (1974); CLI-73-10, 6 AEC 173, 1M (1973).
393146 aomom emm.
-3 The Licensing Board in this proceeding admitted F0E and Messrs. Hursh and Castro, finding that they had stated at least one contention that satisfied the require-4/
ments of 10 CFR %2.*714, although the Board did not identify any particular con-tention filed by each of the Intervenors.
Revised Contentions of F0E F0E has advised NRC Staff counsel orally that it has decided to stand on its
" Revised Contentions for Prehearing Conference" dated August 1, 1979, which was distributed to the Board and parties at the prehearing conference. The pleading contains three Roman numbered paragraphs, each of which is apparently intended to set forth a contention. Two of the three paragraphs are further divided into sub-contentions.
In the Staff's view F0E has set forth two contentions which are acceptable, namely Contentions III(a) and III(c), with the caveat noted below with respect to Contention III(c).
Contention III(a) asserts:
III. The NRC orders in issue do not reasonably assure adequate safety for the following reasons:
(a) The orders fail to evaluate or comment upon the acceptability of 27 feedwater transients over the past year in nine Babcock and Wilcox (B&W) reactors, a frequency which is 50 percent greater than the corresponding rate for other pressurized reactors.
4_/ Prehearing Conference Order at 1.
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-4 The Staff finds this contention to be stated with sufficient specificity and to have adequate basis in that it is apparently directly drawn from NUREG-0560 (p.1).
Contention III(c) states:
III. The NRC orders in issue do not reasonably assure adequate safety for the following reasons:
(c) There is no reasonable time table for implementation of the long-term modifica-tions established in the orders for subsequently identified long-term modifications.
This contention is sufficiently specific and understandable up to the point where it states "for subsequently identified long-term modifications." Possibly F0E omitted the word "and" at the beginning of the clause.
In any event, even if the sentence should be read with the conjunction "and" before the last clause, we would nonetheless object to the inclusion of the last clause in a contention in that it is impermissibly vague. The portion of the contention through that last clause is, in our view, admissible.
As to the remaining contentions set forth by F0E, their most common deficiency is their lack of specificity and of basis. We find contentions II(l), II(2),
III(d), and III(e) to be deficient for these reasons.
Contention II(l) asserts that the Board must consider in this proceeding technically feasible rtions not taken by the Commission, including a shut-down order until the long-term modifica-tions are accomplished.
In proposing this contention, F0E has failed to identify with particularity what
" actions" the Board should consider or to provide any basis why such additional actions might be relevant to this proceeding. The second part of the contention, 393148
regarding a possible shutdown order, is also lacking in clarity.
If F0E is asserting that the Licensing Board could order the facility shut down prior to receiving evidence in this proceeding, we do not agree. The Commission determined that restart of the facility would be allowed once the short-term actions had been accomplished to the satisfaction of the Director of the Office of Nuclear Reactor Regulation and that the long-term modifications specified in the May 7, 1979 order should be accomplished "as promptly as practicable," but not necessarily prior to restart. A determination by the Licensing Board, prior to the receipt of evidence, to shut the facility down would be an impermissible review of the Commission's deter-minations in its May 7 order. Any argument that the Licensing Board could order the facility shut down on the basis of the evidence adduced before it is essentially an argument as to remedy, which is appropriate for the post evidentiary hearing stage of this proceeding.
Contention II(2) asserts that the Board must consider.
information made available subsequent to the May 7 order as a result of the TMI-2 investigation, including but not limited to all possible safety measures identified in NUREG-0560 and NUREG-0578.
The first part of this contention is far too vague to apprise the NRC Staff of what testimony.it must prepare. First, F0E must identify precisely what additional information it believes should be considered by the Board. Second, F0E must allege how that information is related to the issues to be considered in this proceeding.
F0E's reference to "all possible safety measures identified in NUREG-0560 and NUREG-0578" does provide some focusing on actions which F0E wants the Board to consider, and we readily acknowledge that some of the recommendations in these two documents relate to matters within the scope (as we perceive it) of this proceeding.
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. In order to determine whether we have any objection based upon scope, we intend to undertake further discussions with F0E regarding our views on the interrelation-ship between the two documents and this proceeding. While we view this portion of the contention as vague at present, we would respectfully suggest that the Board defer ruling on its admissibility until we have accomplished the above discussions and reported back to the Board.
Contention II(3),which states simply "the items specified in part III, subparagraphs (a) through (e), inclusive, hereof" should be considered by the Board,does not assert anything by itself, but simply keys into the matters asserted in Contention III.
Contention III contains 5 subparts (a through e). Each asserts a reason why "6/heNRCordersinissuedonotreasonablyassureadequatesafety". We have already indicated that we consider Contentions III(a) and III(c), to be admissible.
Contention III(b) is addressed later in this response.
Contention III(d) asserts No procedures have been taken to assure facility management competence.
This contention is totally lacking in specificity and basis. Management competence is a very broad issue and F0E has failed to identify any particular aspect of management competence which it intends to raise. lhe Commission had specifically included the issue of " management competence and control" to respond to feedwater 9/
transients in the Davis-Besse order ~ and considered whether to amend the May 7
,9/ Toledo Edison Co. (Davis-Besse, Unit 1), Docket No. 50-346, Commission Order of July 5, 1979.
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-7 order to include " management competence and control" as an issue in this proceeding.
The Commission voted not to amend the order, but noted that the issue could be raised by a party under footnote 3 to the Licensing Board's July 3, 1979 order.
That footnote stated, in pertinent part Each requester for hearing can, of course, assert... that further issues should be specified as lcag as they are related to the action taken by the Commission in its May 7, 1979, Order.
We believe the Comission's deliberations fairly evidence an intent that in order-to raise management competence and control as an issue in this proceeding a party 10/
would have to provide some very specific basis.~
Contention III(d) falls far short of that standard.
Contention III(e) asserts No procedures for the determination of the adequacy of operator competence.
This language does not even set forth any assertion.
It is extremely vague and is lacking in any basis.
In addition to the above objections based on lack of specificity and basis, we also object to Contentions I and III(b) for the reasons developed below.
Contention I is, in our view, merely an introductory statement by F0E.
It simply sets forth F0E's view of the purpose of the proceeding. F0E may choose to argue from this premise in its post-hearing papers, but its statement does not assert any factual matters that can be addressed by evidence.
10f Transcript of Public Meeting--Discussions of Modifications to the Rancho 0
Seco Order at 7, 9.
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, Contention III(b) asserts that because of an " implicit recognition of possible safety problems" on the part of the Comission, its orders are either (1) deficient or (2) the jurisdiction of the Board is unduly limited, since no consideration is given to " emergency response and evacuation planning". We fail to understand the reasoning behind the asserted " deficiency" of the orders.
In any event the Licensing Board is not empowered to pass upon whether the Commission's orders are " deficient".
(See our comments on Contention II(1)). The question of the scope of this proceed-ing,which is raised in the second part of this contention, is a matter for legal argument and the Board has called for briefs on the subject, as noted above, to be filed by August 27, 1979.
Revised Contentions of Messrs Hursh and Castro and Revised Issues of CEC Although the Board directed that the Intervenors, NRC Staff, and Licensee present to it by August 20, 1979 a stipulation of agreed contentions and a statement of non-agreed contentions and although this process was commenced at the August 1, 1979 meeting among the parties, Messrs Hursh and Castro did not file their revised con-tentions until August 20, 1979. The Staff is obviously not in a position to respond to the Hursh-Castro revised contentions todcy. We will review the revised contentions and respond as promptly as possible.
CEC filed on August 20, 1979 an eighteen page document entitled " Revised Statement 11/
of Issues of Concern to the California Energy Commission"- The Staff needs time 11/ The CEC had provided the Staff with a near-final draft of this document on
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August 17, 1979.
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to review the revised statement and to prepare a response. As part of that response we would also seek to give the Board our view as to the nature of CEC's participation in this proceeding, focusing on the question of whether 12/
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CEC may raise independent assertions as an interested state under 10 CFR 52.715(c).
We will provide that response also to the Board as promptly as possible.
Respectfully submitted, u
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'Of e
Stephen H. Lewis Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of August, 1979.
,1_2] Prehearing Conference, Tr. 33-34, 48-50.
2 393153
UNITED STATES OF AMERICA
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NUCLEAR REGULATORY C0F.*4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of SACRAMENTO MUNICIPAL UTILITY Docket No. 50-312 DISTRICT Rancho Seco Nuclear Generating Station CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF NRC STAFF TO CONTENTIONS OF INTERVENORS AND TO ISSUES OF INTERESTED STATE", in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by a single asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, or, as indicated by a double asterisk, by delivery to the office of the identified person, this 20th day of August, 1979:
- Michael L. Glaser, Esq., Chairman Gary Hursh, Esq.
1150 17th Street, N.W.
520 Capitol Mall Washington, D.C.
20036 Suite 700 Sacramento, California 95814
- Dr. Richard F. Cole Atomic Safety and Licensing Board Panel Mr. Richard D. Castro U.S. Nuclear Regulatory Commission 2231 K Street Washington, D.C.
20555 Sacramento, California 95816
'** Mr. Frederick J. Shon James S. Reed, Esq.
Atomic Safety and Licensing Board Panel Michael H. Remy, Esq.
U.S. Nuclear Regulatory Commission Reed, Samuel & Remy Washington, D.C.
20555 717 K Street, Suite 405 Sacramento, California 95814 David S. Kaplan, Esq.
General Counsel Christopher Ellison, Esq.
Sacramento Municipal Utility District Dian Grueneich, Esq.
P. O.
Box 15830 California Energy Commission Sacramento, California 95813 1111 Howe Avenue Sacramento, California 95825 Timothy V. A. Dillon, Esq.
Suite 380 1850 K Street, N.W.
Washington, D.C.
20006 SS3154c n.-
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. ** Atomic Safety and Licensing Board Panel U.S. fluclear Regulatory Commission Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Board Panel U.S. riuclear Regulatory Corm 11ssion Washington, D.C.
20555
- Docketing and Service Section Office of the Secretary U.S. fluclear Regulatory Commission Washington, D.C. 20555
' lbf habam' SteppnH. Lewis Counsel for NRC Staff um 4
o 9
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