ML19290C003
| ML19290C003 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 12/20/1979 |
| From: | Axelrad M, Rachel Johnson LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PORTLAND GENERAL ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19290C004 | List: |
| References | |
| IEB-79-13, IEB-79-14, NUDOCS 8001090029 | |
| Download: ML19290C003 (13) | |
Text
.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC COMPANY, )
Docket No. 50-344
-- --et al.
)
)
(Cont. ol Building
)
Proceeding)
(Trojan Nuclear Plant)
)
)
)
LICENSEE 'S ANSWER TO INTERVENORS '
MOTION TO REOPEN PHASE I EVIDENTIARY HEARING, REVOKE INTERIM OPERATING LICENSE AND COMPEL FULL DISCLOSURE In their motion of December 8, 1979, (the " Motion")
Intervenors request the Licensing Board to reopen Phase I of the proceeding, to order closure of the Trojan Plant pending a decision in the reopened Phase I hearing, and to require
" full disclosure" by Licensee and NRC Staff to all parties on matters related to the seismic adequacy of the Control Building Complex and systems within.
With respect to Phase II of the proceeding, the Intervenors request the Board to compel " full disclosure" by Licensee and the NRC Staff concerning certain alleged " security problems" at the Plant.
Licensee opposes the foregoing requests for the reasons set forth below and urges the Board to deny the Motion in all respects.
1729 227 6 8001090029
Phase I Intervenors ' requests pertaining to Phase I of the proceeding appear to be premised on the " Statement of the Facts" commencing at paragraph 7 of the Motion.
Since the Intervenors misunderstand and mischaracterize the facts, this response will first restate the facts correctly and place them in proper perspective.
Intervenors ' f actual allegations relate to two developments during the past few months:
(1)
Licensee 's inspections pursuant to the NRC's IE Bulletin 79-14 (IEB 79-14) and its reports thereon to the NRC Staff, including its letter to the Staff dated August 31, 1979 and the Licensee Event Report of September 6, 1979, (LER 79-13)
(Motion, $$7-10); and (2) Licensee 's investigation of piping reaction forces on supporting walls, as reported in LER 79-15 and subsequent communications, including the letter to the NRC Staff dated November 19, 1979 (Motion, it7, 11-15).
In order to dispose definitively of the factual allegations regarding IEB 79-14, we have attached to this Answer the December 20, 1979 Affidavit of Donald J.
Broehl Regarding Licensee 's Responses to IEB 79-14 (the "Second Broehl Affidavit").
No additional affidavit concerning the second subject (which was referred to as the " wall problem" in the Board 's Order of November 30, 1979) is submitted herewith, since the factual basis for denying reopening on this matter is contained in the Affidavit of Mr. Broehl dated December 8, 1979 (the "First Broehl Affidavit"), provided to the Board and all parties with Licensee 's letter of that date. 1729 228
The Second Broehl Affidavit demonstrates that not only are Intervenors ' allegations as to Licensee 's responses to IEB 79-14 false, but the matters inspected and reported by Licensee are not material or relevant to the issues in this proceeding.
Briefly stated, IEB 79-14 required all holders of NRC operating licenses, including Licensee, to identify and inspect Seismic Category I piping systems subject to seismic analysis to verify that previous seismic analyses of these systems conformed to actual configurations.
Through these inspections, Licensee identified a number of necessary minor adjustments which had to be implemented through the Maintenance Request (MR) procedure.
In addition, there were a number of minor deficiencies which required drawings to be corrected to reflect the as-built condition through the Drawing Change Notice (DCN) procedure.
The "approximately 50 DCNs" emphasized by Intervenors (Motion, 19) refers to those deficiencies, identified by Licensee in its August 31,1979, report under IEB 79-14.
In each instance Licensee reviewed these drawing changes and confirmed that the minor deficiencies did not af fect the capability of the systems involved to perform their intended functions before, during and after a seismic event.
(Second Broehl Affidavit, p. 4).
Deficiencies which could potentially affect the capability of a system to perform its intended function were identified in Nonconformance Reports (NCRs).
There were ten NCRs.
The resulting analyses demonstrated that the systens involved in nine of the NCRs would still have performed their intended 1729 229
function notwithstanding the identified deficiency, in the in, stance of only one NCR would the system have been theoretically degraded following a seismic event.
This NCR involved two damaged supports of suction piping of Train A of the Containment Spray System at elevation 22 feet of the Auxiliary Building and was reported in Licensee Event Report 79-13.*/
The two supports have been repaired. (Id., pp 4-7)
It should be emphasized that, of the ten NCRs, eight involved systems outside of the Complex, and two were below ground level in the Auxiliary Building and thus not subject to review for interim operation.
These nonconformances have no relationship to the design deficiencies considered in the Control Building.
All of the piping within the Complex subject to addition or modification of supports or restraints pursuant to Licensee Condition 2.C.(10)c (added as required by the Partial Initial Decision of December 21, 1978) has been reviewed, and no conditions have been found which constitute a violation of this License Condition. (Id., pp. 7-8)
Thus, it is obvious that all of Intervenors' allegations concerning IEB 79-14 and LER 79-13 are unfounded.
No false statements were made to the Board (Motion, V7); there is no discrepancy between testimony at the hearing and the responses
- / LER 79-13 also reported a single missing support on Train B at elevation 10 feet in the Auxiliary Building; analysis has shown that the system would continue to perform its intended function. (Id., pp. 6-7) 1729 230
to IEB 79-14 (Motion, 158, 9), and none of the NCRs (including the nonconformances discussed in LER 79-13) involved a violation of License Condition 2.C.(10)c.
As to the events described in LER 79-15, the Board already nas the basic documents (LER 79-15 and the information subsequently submitted to the NRC Staff), and the background and result of those investigations are succinctly described at pages 6-11 of the First Broehl Affidavit.
As Mr. Broehl pointed out, the investigations showed that only one masonry wall potentially subject to significant piping reaction forces had been included in the STARDYNE analysis for interim operation.
It was not a shear wall in the original design, and the conclusions with respect to seismic capacity of the Complex would not have been altered if the wall had not been included in the STARDYNE analysis.
Nevertheless, the wall has been analyzed in detail and, after two supports were through-bolted, the wall has adequate capacity to withstand all loads imparted by either a O.25g SSE or a 0.15g OBE in accordance with FSAR criteria.
(First Broehl Affidavit, pp.
9-10)
In addition, Licensee reviewed all of the support and restraint modifications that had been performed prior to interim operation in accordance with License Condition 2.C.(10)c, and determined that only one needed to be modified--and that one only in order to satisfy simpler, more conservative criteria and calculational methodology adopted to expedite NRC review. 1729 231
Licensee has also reviewed each of the new support modifications above ground level in the Complex, and confirmed that each modification related only to LER 79-15 considerations.
(First Broehl Affidavit, pp. 10-11)
Thus, these modifications did not reveal any inadequacies in the performance of modifications for interim operation; and the review provided additional confirmation that License Condition 2.C.(10)c had been satisfied prior to resumption of Plant operation in January 1979.
In view of these facts, Intervenors ' allegations on this subject are obviously in error.
Intervenors refer to an inadequacy in the block walls in the emergency diesel generator room as a violation of the Board's Order (Motion, 113, 15);
they obviously fail even to recognize that the emergency diesel generator room is outside of the Complex and thus unrelated to the Board 's Order.
In any event, the emergency diesel generator room walls are being strengthened in accordance with the new criteria. (Supplement No. 2 to Licensee Event Report 79-15, p. 4).
Moreover, Intervenors are wrong in alleging that Licensee 's letter of November 19, 1979, indicates that four restraints were not in conformance with License Condition 2.C.(10)c (Motion, til4, 15).
As discussed above, the modifications of these restraints were not occasioned by any inadequacies in the modifications performed for interim operation, but resulted from the new, more conservative criteria applied to expedite NRC review of LER 79-15 considerations.
In light of the inaccuracies in Intervenors ' recitation 1729 232 of facts, it is almost unnecessary to examine the defects in their legal analysis, but we shall do so briefly.
First, Intervenors explicity seek to reopen Phac _ I of this proceeding.
Even if the Board were assumed to have jurisdiction to do so, */
the alleged facts would not meet the basic requirements for reopening.
In order to justify a reopening, not only must the motion be addressed to a significant safety or environmental issue, but "it must be established that a different result would have been reached initially had [the material submitted in support of the motion] been considered' ".
Kansas Gas & Electric Company, et al.
(Wolf Creek Generating Station, Unit 1, ALAB-462, 7 NRC 320, 338 (1978),
quoting from Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974).
The very quotation from the case cited by Intervenors makes clear that an agency need not reopen a proceeding "unless the new evidence offered, if true would clearly mandate a change in result."
(Motion, 121).
As we show above, the facts involved in the two developments cited by Intervenors do not involve
- / Jurisdiction to grant the specific relief sought by Intervenors, i.e.,
literally to reopen Phase I of the proceeding as opposed to exercising continuing jurisdiction in Phase II, is open to question.
As a general rule, once a decision has become final (as has the Partial Initial Decision of December 21, 1978),
a board no longer has jurisdiction over the subject matter thereof.
10 CFR { 2.717(a); Washington Public Power Supply System, et al.
(WPPSS No. 3 and 5)', ALAB-501, 8 NRC 381 (1978); Public Service Co. of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2 ),
ALAB-530, 9 NRC 261 (1979).
Even if a board still has before it some issues in a proceeding, it does not retain jurisdiction over a question it has previously decided once " finality [had] attached to the resolution of the question (Footnote continued on next page) 1729 233 a significant safety issue and, if offered in the original Phase I hearings, would not have changed the results.
Reopening is thus obviously unwarranted.
In addition to failing to provide facts that would support reopening the Phase I proceeding, the Motion fails to provide any basis for suspending operation of the Plant during the pendency of any such proceeding.
First of all, this request is predicated on the assumption that there has been a violation of the license condition imposed as a result of the Board's Partial Initial Decision.
(Motion, 154, 5)
As we show above, no such license violation has taken place.
Secondly, Intervenors fail to provide any legal support for the proposition that, even if a violation had taken place, enforcement should be undertaken (Footnote continued from page 7) in this proceeding."
Public Service Co. of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1973).
The Appeal Board there held that the pendency of an issue did not " preserve our jurisdiction" over another resolved issue, and pointed out that an intervenor was not without remedies since he could request the institution of a show-cause proceeding.
Id. at 696.
As later elaborated by the Appeal Board, the autEutity to consider issues is limited by the principle of finality which governs NRC proceedings to the same extent as any judicial proceedings.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704 (1979).
These principles are " fully applicable" to cases involving license amendments and other more limited proceedings. Id. at 709, fn.
7, citing, Portland General Electric Company (Trojan Control Building),
ALAB-534, 9 NRC 287, 289 fn. 6 (1979).
Intervenors' position derives no support from the Peach Bottom decision, ALAB-389, 5 NRC 727 (1977) (incorrectly cited by Intervenors as ALAB-398 at 13 of the Motion), which bears no relationship to this proceeding.
In that case, the Appeal Board did not decide any jurisdictional issues (because the two-man Board was in disagreement), but concluded that all of the proposed contentions should have been excluded from that proceeding on their merits. 1729 234
by the Board rather than the Staff.
To the contrary, NRC case law recognizes the principle that policing and enforcement of licensing conditions is a job for the Staff, not licensing boards.
Intervenors acknowledge this and cite Public Service Co. of New Hampshire, et al.
(Seabrook Station, Units 1 and 2),
ALAB-356, 4 NRC 525 (1976).
There the Appeal Board reconsidered (and adhered to) its earlier denial of intervenors' request for a stay pending appeal of the initial decision, based on alleged violations of certain conditions pertaining to construction activities. */
The Appeal Board concluded that It is in the first instance an enforcement and not an adjudicatory function to make certain that license conditions are being satisfied.
If thev are not, there are remedies available to the enforcement offi-cials--including the institution of a proceeding to suspend or revoke the permit in question.
Id. at 536.
Finally, Intervenors request that the Board order Licensee and the NRC Staff to disclose to the Board and all parties all information relating to the seismic adequacy of the Control Building Complex and its systems, apparently on the premise that
- / See also Detroit Edison Co.
(Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 38 (1978).
In denying an intervention petition in a proceeding for an amendment to a construction permit, the Licensing Board concluded that its jurisdiction was limited to the issues in the Notice, and that the Staff must decide whether the license or regulations had been violated, as alleged by the would-be intevenor.
The Appeal Board affirmed the denial of the petition without addressing the jurisdictional issues.
ALAB-470, 7 NRC 473 (1978)
The Marble Hill decision cited by Intervenors (Motion, 95), is irrelevant.
During a construction permit proceeding, a dispute arose between the Staff and the applicant as to whether the (Footnote continued on next page) 1729 235
Licensee had failed to comply with an obligation to provide relevant information.
(Motion, 1916-18)
This basic premise is wrong; there is no relevant information which has not been provided to the Board and the parties.
As shown above, the investigations and reports in response to IE Bulletin 79-14 have not produced any information relevant to the issues in the Control Building proceeding.
As to the events relating to LER 79-15,- at the time the LER was submitted there was no indication that the available information was relevant to the proceeding.
When the potential relationship-albeit minimal-was discovered, the Licensee informed the Board and the parties by a copy of its November 19, 1979 letter to the NRC Staff.
Since that time the Licensee has provided to the Board and the parties copies of Supplement No. 2 to LER 79-15 and of subsequently developc5 information.
Licensee is well aware of its obligation under long-standing NRC doctrines to inform the Board'and the parties of "new information which is relevant and material to the matters being adjudicated."
Duke Power Company (William B.
McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625 (1973).
Nothing in the Motion ic' atifies any violation (Footnote continued from page 9) applicant was responsible for pre-permit road construction ir.
violation of 10 CFR 50.lO(c).
The Staff sought the Board's interpretation of the regulation and of applicant's responsibility; the applicant did not challenge the Board's jurisdiction to enforce NRC regulations.
Public Service Co.
of Indiana, Inc.
(Marble Hill Nuclear Generating Station Units 1 and 2), LBP-77-52, 6 NRC 294, 301-02 (1977).
Apparently both parties believed that to be an expeditious manner of resolving the dispute; no question as to the Board's authority was raised on appeal.
ALAB-459, 7 NRC 179, 196-98 (1978). 1729 236
of such obligation.*/
It is not clear to what purpose the Intervenors cite the Beaver Valley and Midland decisions in paragraph 19 and 20 of their Motion.
Those cases simply stand for the proposition that an applicant's failure to comply with applicable requirements at one plant should be taken into account in the licensing of another plant.
We fully agree with this principle, but it is wholly inapplicable to the instant case.
Not only is there no factual support for Intervenors' assertion that Licensee failed "to perform a complete and adequate analysis,"
but, as shown above, the subsequent investigations provided additional confirmation that the license condition was satisfied.
Phase II With respect to Phase II of the proceeding, Intervenors ask that the NRC Staff and the Licensee be ordered to disclose all of the facts concerning the arrest of some security guards for drug-related activities at the Plant site.
Under the stipulation which Intervenors entered into at the prehearing conference as to their security concerns, their Contention 18 was not admitted.
Instead the NRC Staff was to submit a report on Trojan security matters which, inter alia, would address any specific questions raised by the Intervenors without compromising security details.
(Motion, 924: Tr. 3090-93)
If Intervenors have questions
- / t.or, of course is there any violation of 186 of the Atomic Energy Act, which was involved in the North Anna decision cited by Intervenors (Motion, 518).
1729 237
arising from the arrest incident, they do not explain why they did not address them to the Staff and request that the answers be incorporated into the Staff's report.
In the view of the Licensee, the arrest incident is totally unrelated to the instant proceeding.
However, because of the implications raised by the Intervenors' erroneous characterization of the incident, including the charge that the Licensee did not notify the NRC Staff while the security investigations were taking place, the Affidavit dated December 19, 1979 of M. C.
Street, Director of Security of Portland General Electric Company, is att.:che'.
It describes the background and unfoloing of the incident.
As the Board will note, Licensee's own security personnel discovered drug-related activities by employees of the security company which provides some guards for the Plant and immediately took proper precautions.
As soon as positive information of illegal conduct was available, Licensee promtly informed the Columbia County District Attorney and the Oregon State Police, and the proposed actions were discussed with the NRC Resident Inspector, staff of the NRC Region V Inspection and Enforcement Office and the Oregon Department of Energy.
The work of a State Police undercover agent resulted in the arrests referred to in Intervenors' Motion.
(Street Affidavit,
- p. 1)
The facts demonstrate both that the arrest is irrelevant to this proceeding, and that Licensee fully and properly kept the NRC informed. 1729 238
CONCLUSION Intervenors' motion of December 8, 1979, should be denied in all respects.
Respectfully submitted, MAURICE AXELRAD, ESQ.
ALBERT V. CARR.,
JR.,
ESO.
Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue Washington, D.
C.
20036 RONALD W. JOHNSON, ESQ.
Corporate Attorney Portland General Electric Company 121 S.
W.
Salmon Street Portland, OR 97204 By sc J
i729 239