ML19294B611

Response in Opposition to Chesapeake Energy Alliance 800213 New late-filed Contentions (D)-14 & (D)-15 Per NUREG/CR-1270 Review.Subjs Already Discussed in President'S Commission 791030 Rept Served on Intervenors.Certificate of Svc Encl

ML19294B611
Person / Time
Site:	Three Mile Island
Issue date:	02/22/1980
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8003050149
Download: ML19294B611 (10)

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

LICENSEE 'S RESPONSE TO CEA CONTENTIONS (DRAFT)

PURSUANT TO REVIEW OF NUREG/CR-1270 On February 13, 1980, Chesapeake Energy Alliance (CEA) filed a pleading entitled "CEA Contentions (Draft) Pursuant to Review of NUREG/CR-1270." In that pleading, CEA submitted two contentions, designated "(D)-14" and "(D)-15," for considera-tion by the Board. Licensee responds herein to CEA's two new proposed contentions.

The Board has consistently taken the position that, except in extenuating circumstances, new or revised contentions based upon "new information" are due within thirty days of the availability of the information. See, e.g., " Memorandum and Order Ruling On Intervenors' Requests For Extensions of Time To File Revised Emergency Planning Contentions," slip op. at p. 5

n. 2 (Ja.uary 8, 1980). Apparently r51ying on this policy, CEA now seeks to submit general contentions on (a) control room i

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design [ Contention (D)-14] and (b) operator training and emergency and operating procedures [ Contention (D)-15],

pursuant to its review of NUREG/CR-1270, " Human Factors Evaluation of Control Room Design and Operator Performance at Three Mile Island - 2" (January 1980).

Though NUREG/CR-1270 does provide a general basis for the two contentions, both contentions have ample basis in informa-tion available long before the January 1980 publication date of NUREG/CR-1270. Accordingly, since the 30-day rule described above applies to the availability of "new information" and not merely repetition in a new publication of information previous-ly available,1 CEA's contentions are not timely filed, and must be rejected under the criteria of 10 C.F.R. S 2.714(a)(1).

The subjects of both proposed contentions were discussed extensively in the Report of The President's Commission on The Accident at Three Mile Island, (" Report" or " Report of The President's Commission"), released on October 30, 1979 and 1 Any other interpretation of the 30 day policy would lead to absurd results, particularly in the context of this proceeding. The TMI-2 accident will be the subject of a continuing stream of reports for many months to come.

These reports will often include general information which has long been available to the public. However, the mere repetition of such general information in a new publication should not, absent extenuating circumstances, serve to revive a petitioner's right to raise an issue, where that right has previously been extinguished by the passage of time. An adjudicatory proceeding should not be repeatedly interrupted for the admission and litigation of new contentions based only on the repetition by re-publication of general information which has been widely available to the public at large for months.

served on the intervenors in this proceeding on November 26, 1979, as well as in the technical staff reports supporting the Report. In the "Ove rv ie w" section of the Report, at page ll, the Kemeny Commission observed:

In conclusion, while the major factor that turned this incident into a serious accident was inappropriate operator action, many factors contributed to the action of the 2 The technical staf f reports supporting the Report conclusions on control room design include the " Technical Staff Analysis Report on Control Room Design and Performance To President's Commission on The Accident at Three Mile Island," the " Report of The Of fice of Chief Counsel or. The Role of The Managing Utility and Its Suppliers To President's Commission on The Accident at Three Mile Island,"

pages 39-51, and the " Technical Staff Analysis Report Summary To President's Commission on The Accident at Three Mile Island," section 11 on " Control Room" (all released October 31, 1979).

The technical staff reports supporting the Report conclusions on operator training include the " Technical Staff Analysis Report on Selection, Training, Qualification, and Licensing of Three Mile Island Reactor Operating Personnel to President's Commission on The Accident at Three Mile Irland" and the " Technical Staff Analysis Report Sommary To President's Commission on The Accident at Three Mile Island," section 10, which addresses " Personnel Training and Qualification." .

Both these reports were released October 31, 1979.

The technical staff reports supporting the Report conclusions on plant procedures include the " Technical Staff Analysis Report on Technical Assessment of Operating, Abnormal, and Emergency Procedures To President's Commission on The Accident at Three Mile Island ," the

" Report of The Office of Chief Counsel on The Role of The Managing Utility and Its Suppliers To President's Commission on The Accident at Three Mile Island," pages90-138, and the " Technical Staff Analysis Report Summary To President's Commission on The Accident at Three Mile Island," section 12 on " Technical Assessment of Operating, Abnormal and Emergency 2rocedures." These reports were also released October 31, 1979.

operators, such as deficiencies in their training, lack of clarity in their operating procedures, failure of organizations to learn the proper lessons from previous incidents, and deficiencies in the design of the control room.

(Emphasis supplied). Further, these general observations were the subject of well-publicized Commission Findings and Recommendations. For example, on control room design, see page 11 of the " Overview" section of the Report, in addition to Commission Findings A.8., G.8.e. and G.8.f., as well as Commission Recommendations A.4.c. (ii) and D.l. On operator training, see the " Overview" section of the Report at page 10 and pages 22-23, as well as Commission Findings E.1.e., E.5.e.,

E.5.f., and F, in addition to Commission Recommendations A.4.a.

and C. And, on operating and emergency procedures, see pages 10-11 of the " Overview" section of the Report, as well as Commission Findings A.6., E.4.b., E.4.c.iii, and E.5.b., in addition to Commission Recommendations B.3.b. , B.3.c. , and B.S.

(especially B.5.c.).

Moreover, a review of the numerous contentions on the subjects of control room design, operator training, and emergency and operating procedures which were filed by other intervenors in this proceeding compels the conclusion that CEA's general contentions on these subjects could have been timely filed, at least within 30 days of the availability of the Report of The President's Commission, if not before.

Compare CEA's proposed Contention (D)-14 on control room design with ANGRY Contention V(C) and Revised Contention VI; ECNP Contentions 1(a), 1(c), 1(i), and 2 (number 8 in the list of

" major assumptions behind TMI-l Emergency Plan"); and Sholly Contentions 13 and 15.3 Note particularly the similarities between CEA's proposed Contention (D)-13 and ECNP's Contention 1(i) and Sholly Contention 15. Compare CEA's proposed Contention (D)-15 on operator training and emergency and operating procedures with Aamodt Contention 2; ANGRY Revised Contention VI; ECNP Contention 2 (number 7 in list of " major assumptions behind TMI-l Emergency Plan" and number 19 in list of " deficiencies in Emergency Plan"); and Sholly Contentions 2 and 3. The similarity of many of these contentions to CEA's two proposed contentions is striking. Because the information on which CEA's proposed contentions are based was available to CEA much more than 30 days prior to the filing of those contentions, the contentions must be considered late filed contentions.

Late filed contentions are to be treated as late filings to which the standards of 10 C.F.R. S 2.714(a)(1) must be applied. " Memorandum and Order Ruling On Intervenors' Requests 3 As a basis for his Contention 15, Sholly cited, inter alia, NUREG-0600 (August 1979) and NUREG-0578 (July 1979) at page 7:

A widely accepted lesson learned from the TMI-2 accident is that the man-machine interface in some reactor control rooms needs significant improvement.

Note also that ANGRY referred to pages 8-11 of NUREG-0560 (May 9 1979) in support of its Contention V(C).

For Extensions of Time To File Revised Emergency Planning Contentions," slip op, at p. 7 (January 8, 1980). Section 2.714(a)(1) provides that non-timely filings will not be entertained unless it is determined that the petition or request should be granted based upon a balancing of five factors:

(i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's partici-pation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's partici-pation will broaden the issues or delay the proceeding.

The first criterion, good cause for failure to file on time, is the most important factor, though the others must also be considered. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977).

In its February 13 filing, CEA offered no explanation whatsoever for its failure to timely file the two proffered general contentions on control room design and operator training and emergency and operating procedures. The striking similarities between CEA's contentions and those of other parties, discussed above, suggest that CEA's general interests in these subjects will be represented by other parties. CEA has demonstrated no particular technical expertise in the subjects of its two late filed contentions, and the fact that CEA has apparently only recently become aware of the roles which control room design, operator training, and plant procedures allegedly played in the TMI-l accident undermines -

to some extent - any claim that CEA's participation in these areas of inquiry would be a significant factor in developing a sound record on these issues in this proceeding. Finally, it is no t clear at present whether "the petitioner's participation will . . . delay the proceeding." It is certainly possible that CEA's participation on these issues will delay the proceeding; it is inconceivable that CEA's participation would in any way expedite the disposition of the issues.

Accordingly, since CEA's two proposed contentions were not based upon "new information" which became available within the 30-day period immediately preceding their submission to the Board, and since CEA has neither shown " good cause" for failure to timely file the late contentions nor met other requirements of 10 C.F.R. S 2.714(a)(1) applicable to late filings, CEA's Contentions (D)-14 and (D)-15 should be rejected.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: k .s *

///W /

eorg'e F. Trowbridge /

Dated: February 22, 1980 February 22, 1980 UNITED STATOS OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response To CEA Contentions (Draft) Pursuant To Review of NUREG/CR-1270" were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 22nd day of February, 1980.

M1 'dkN J Gp6rge F. Trowbridge[

Dated: February 22, 1980 UNITED STATES OF AMERICA NUCLEAR REGULA'10RY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

SERVICE LIST Ivan W. Smith, Esquire John A. Levin, Esquire Chairman Assistant Counsel Atomic Safety and Licensing Pennsylvania Public Utility Comm'n Board Panel Post Office Box 3265 U.S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17120 Washington, D.C. 20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atomic Safety and Licensing 505 Executive House Board Panel Post Office Box 2357 881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 John E. Minnich Dr. Linda W. Little Chairman, Dauphin County Board Atomic Safety and Licensing of Commissioners Board Panel Dauphin County Courthouse 5000 Hermitage Drive Front and Market Streets Raleigh, North Carolina 27612 Harrisburg, Pennsylvania 17101 James R. Tourtellotte, Esquire (4) Walter W. Cohen, Esquire Office of the Executive Legal Director Consumer Advocate U. S. Nuclear Regulatory Commission Office of Consumer Advocate Washington, D.C. 20555 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17127 Docketing and Service Section (21)

Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D.C. 20555

Jordan D. Cunningham, Esquire Karin P. Sheldon, Esquire Attorney for Newberry Township Attorney for People Against Nuclear T.M.I. Steering Committee Energy 2320 North Second Street Sheldon, Harmon & Weiss Harrisburg, Pennsylvania 17110 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006 Theodore A. Adler, Esquire Widoff Reager Selkowitz & Adler Robert Q. Pollard Post Office Box 1547 Chesapeake Energy Alliance Harrisburg, Pennsylvania 17105 609 Montpelier Street Baltimore, Maryland 21218 Ellyn R. Weiss, Esquire Attorney for the Union of Concerned Chauncey Kepford Scientists Judith H. Johnsrud Sheldon, Harmon & Weiss Environmental Coalition on Nuclear 1725 Eye Street, N.W., Suite 506 Power Washington, D.C. 20006 433 Orlando Avenue State College, Pennsylvania 16801 Steven C. Sholly 304 South Market Street Marvin I. Lewis Mechanicsburg, Pennsylvania 17055 6504 Bradford Terrace Philadelphia, Pennsylvania 19149 Gail Bradford Holly S. Keck Marjorie M. Aamodt Legislation Chairman R. D. 5 Anti-Nuclear Group Representing York Coatesville, Pennsylvania 19320 245 West Philadelphia Street York, Pennsylvania 17404