ML19296D507
| ML19296D507 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/28/1980 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19296D501 | List: |
| References | |
| NUDOCS 8003040699 | |
| Download: ML19296D507 (9) | |
Text
2/28/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (Three Mile Island Nuclear Station,
)
Unit 1)
)
NRC STAFF RESPONSE TO CEA LATE-FILED CONTENTIONS A. Introduction On February 13, 1980, the Chesapeake Energy Alliance (CEA) submitted its "CEA Contentions (Draf t) Pursuant to Review of NUREG/CR-1270."
In its submittal, CEA seeks to have two new contentions admitted, (D)-14 and (D)-15, based upon CEA's review of NUREG/CR-1270, which is the " Human Factors Evalua-tion of Control Room Design and Operator Perfomance at TMI-2."
Contentions filed af ter the October 22, 1979 deadline set by the Board in its September 18, 1979 Memorandum for final contentions, such as CEA's proposed contentions (D)-14 and (D)-15, must be measured against the standards for late filings set forth in 10 CFR $ 2.714(a)(1), as the Board has required.
(See,Memoran-dum and Order Ruling on Intervenors' Request For Extensions of Time To File Revised Emergency Planning Contentions, slip op, at 17 (January 8,1980)).
Section 2.714(a)(1), provides that nontimely filings will not be entertained absent a detemination by the board designated to rule on the filing that the late request should be granted.
In reaching a decision under this section, boards are directed to balance the following five factors:
80030 40 g
, (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 participation may rea-sonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be repre-sented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
B.
Good Cause With respect to the first factor, the Board has stated that the filing of new or amended contentions based upon new infomation should be filed within 30 days of the availability of the infomation.
See, Board's January 8, 1980 Memorandum and Order, supra, at 5. n. 2.
CEA cites as new infomation for its proposed contentions its review of NUREG/CR-1270, which was published in January,1980. Although CEA has shown the nexus between the contentions and the TMI-2 accident, it has failed to demonstrate the relevancy of the NUREG to THI-1 and has failed to cite where in the NUREG specific infomation is provided which constitutes the bases for t.he contentions and which was not available prior to the NUREG. The general infomation cited by CEA regarding the control roam design of TMI-l and operator training has been available for a lengthy period of time, and CEA has failed to supply good cause for its failure to earlier file the contentions.
Regarding the first proposed contention, number (D)-14, NUREG/CR-1270 has no relevancy. The document relied on by CEA involves, as its title suggests, a
i
! study of the THI-2 incident.
It was not a study of the TMI-l facility nor how the THI-2 incident may have a bearing on the operation of TMI-1.
Similarly, the Rogovin inquiry, which requested the Human Factors Evaluation to be performed by the independent contractor (Essex Corp.), did not study the TMI-1 facility. CEA has failed to indicate how the Human Factors Evalua-tion of the THI-2 control room has any relevancy to the THI-l control room.
This absence of a showing of relevancy by CEA with respect to proposed contention 14 is particularly significant in light of the fact that the TMI-1 control room has a different design than the TMI-2 control room.
Similarly, CEA has failed to cite any information or conclusion contained in the Human Factors Evaluation that is new with respect to operator training and emergency procedures. Moreover, CEA had adequate information available last fall to enable it it fonnulate the same two contentions.
Indeed, CEA would be hard put to argue otherwise since a number of contentions filed by other intervenors in this proceeding, on or before October 22,1979, were very similar in content and wording to CEA proposed contentions (D)-14 and (D)-15.
With respect to CEA proposed contention 14, the Union of Concerned Scientists submitted its contention 9 on October 22, 1979, which, as noted by the Board in its December 18, 1979 First Special Prehearing Conference Order (slip op.
at 38), is itself parallel to and complementary to ECNP contention No.1(c).
ECNP contentions 1(a) regarding the plant computer,1(1) regarding inadequate control room panel and room design (which is strikingly similar to CEA con-
i tention 14), and 2(number 8) were also submitted on October 22, and parallel CEA's contention on the control room design.
In addition, ANGRY contention V(c) and revised contention VI relate to control room design, and were sub-mitted on October 22, 1979. ANGRY, in support of its contentions, relied on infonnation available last May (NUREG-0560, the generic assessment of feed-water transients for B&W plants).
(See, Contentions of Anti-Nuclear Group Representing York ( A.N.G.R.Y.), p. 8 (October 22, 1979)) CEA contention 14 is also like Sholly contention 15. This contention is based upon infonna-tion that was available last summer (NUREG-0600, August 1979 and NUREG-0578, July 1979).
(See, Supplement to Petition to Intervene Containing Final Contentions and Bases Set Forth With Specificity, Steven C. Sholly, Peti-tioner ("Sholly Supplement"), pp. 46, 47 (October 22, 1979))
CEA proposed contention 15 is simila' in content to Aamodt contention 2, which has as a basis NUREG-0578 (available in July 1979, as noted above) and NUREG-0600 (available in August 1979).
(See, Petition For Intervention of Marjorie M. Aamodt, p. 2 (October 22, 1979)) Also comparable are ANGRY revised contention VI, portions of ECNP contention 2, and Sholly contentions 2 and 3.
Mr. Sholly based his contentions on, among other things, NUREG-0578 and NUREG-0600 (above).
(See, Sholly Supplement, supra, pp.10-16)
Certainly if these other intervenors were able to develop contentions basically the same as CEA's proposed contentions within the prescribed time period based on information publicly available prior to the October 22, 1979 deadline, CEA could have done likewise. Accordingly, the Staff finds CEA's reliance r
. on new infomation to be unpersuasive and concludes that CEA has not shown good cause for failing to file its two proposed contentions (D)-14 and (D)-15 in a timely manner.
C.
Other Factors of Section 2.714(a)(1)
Tne good causa factor alone is not detenninative of whether untimely filings may be accepted. Where, however, good cause has not been demonstrated, a petitioner bears the additional burden of making a compelling showing on the 6
other four factors. Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 275 (1975).
Notwithstanding this additional burden, CEA has wholly failed even to address the other four factors of 10 CFR S 2.714(a), let alone to make a compelling showing on those factors.
The Staff has, nevertheless, examined factors 2 through 5 of Section 2.714 (a)(1) in order to ascertain whether there is a basis for accepting CEA's proposed contentions despite its failure to address the factors of 5 2.714 (a)(1).
In evaluating these factors as they would apply to CEA, we are cognizant of the Commission's admonition "... that favorable findings on some or even all of the factors in tne rule need not in a given case outweigh the effect of inexcusable tardiness." West Valley, CLI-75-4, supra at 275.
The pivotal detennination necessary to resolve the inquiries provided in the last four factors is whether other parties to this proceeding have raised contentions similar to those of CEA. Although such a determination would seem to be particularly responsive to the fourth factor, namely the extent I~
to which the petitioner's interest will be represented by existing parties, this factor is related to the third and fourth factors as well, as the Staff has previously argued.M For this reason, a conclusion regarding whether CEA's contentions have also been addressed by other parties to the proceeding will detennine the extent to which the petitioner's participation may rea-sonably be expected to assist in developing a sound record (factor 3) and the extent to which the petitioner's participation will broaden the issues or delay the proceeding (factor 5).M As noted earlie; in this Response, there are several contentions filed by other intervenors in this proceeding which have been accepted by the Board and which cwer the subjects addressed in CEA's proposed contentions.
Accordingly, the Staff submits that CEA cannot make a persuasive case for the admission of its proposed contentions with respect to the last four factors of 10 CFR 9 2.714(a)(1).
D.
Conclusion The Staff's review of CEA's proposed contentions (D)-14 and (D)-15 under the factors set forth in 10 CFR 6 2.714(a)(1) forces it to conclude that CEA has y
See NRC Staff Response to ECNP Intervenors' Revised Contention on Emergency Preparedness and Emergency Response, pp. 5, 6 (January 28,1980).
y As to factor 2, the availability of other means whereby the petitioner's interest will be protected, the Staff is aware of no other proceedings in which CEA may raise its concerns. Consequently, there appear to be no other means by which CEA can pursue its contentions.
However, the Staff submits that this factor is completely cutweighed by the other four factors discussed in this Response.
. not set forth, nor could it set forth, good cause for its failure to file the contentions in a timely manner. Accordingly, the Staff urges the Board to deny CEA's proposed contentions (D)-14 and (D)-15 for the reasons set forth in this Response.
Respectfully submf tted, h&5 Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of February,1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY, FT AL.
)
Docket No. 50-289
)
(Three Mile Island Nuclear Station,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CE.A OMNIBUS MOTION" and "NRC STAFF RESPONSE TO CEA LATE-FILED CONTENTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 28th day of February, 1980:
Ivan W. Smith, Esq.*
Mr. Steven C. Sholly Atomic Safety and Licensing Board 304 South Market Street U.S. Nuclear Regulatory Commission Mechanicsburg, PA 17055 Washington, DC 20555 Mr. Thomas Gerusky Dr. Walter H. Jordan Bureau of Radiation Protection 881 W. Outer Drive Department of Environmental Oak Ridge, TN 37830 Resources P.O. Box 2063 Dr. Linda W. Little Harrisburg, PA 17120 5000 Hermitage Drive Raleigh, NC 27612 Mr. Marvin I. Lewis 6504 Bradford Terrace George F. Trowbridge, Esq.
Philadelphia, PA 19149 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Metropolitan Edison Company Washington, DC 20006 ATTN:
J.G. Herbein, Vice President Karin W. Carter, Esq.
P.O. Box 542 505 Executive House Reading, PA 19603 P.O. Box 2357 Harrisburg, PA 17120 Ms. Jane Lee R.D. #3, Box 3521 Honorable Mark Cohen Etters, PA 17319 512 E-3 Main Capital Building Harrisburg, PA 17120 Walter W. Cohen, Consumer Advocate Department of Justice Strawberry Square, 14th Floor Harrisburg, PA 17127
2-Holly S. Keck John Levin, Esq.
Anti-Nuclear Group Representing PA Public Utilities Commission York Box 3265 245 W. Philadelphis Street Harrisburg, PA 17120 York PA 17404 Jordan D. Cunningham, Esq.
John E. Minnich, Chaircan Fox, Farr and Cunningham Dauphin Co. Board of Commissioners 2320 North 2nd Street Dauphin County Courthouse Harrisburg, PA 17110 Front and Market Strects Harrisburg, PA 17101 Theodore A. Adler, Esq.
Widoff, Reager, Selkowitz 6 Adler Robert Q. Pollard P. O. Box 1547 Chesapeake Energy Alliance Harrisburg, PA 17105 609 Montpelier Street Baltimore, MD 21218 Ms. Ellyn R. Weiss Sheldon, Harmon, Roisman & Weiss Chauncey Kepford 1725 I Street, N.W.
Judith H. Johnsrud Suite 506 Environmental Coalition on Washington, DC 20006 Nuclear Power 433 Orlando Avenue Atomic Safety and Licensing Board State College, PA 16801 Panel
- U.S. Nuclear Regulatory Commission Ms. Frieda Berryhill, Chairman Washington, DC 20555 Coalition for Nucicar Power Plant Postponement Atomic Safety and Licensing Appeal 2610 Grendon Drive Panel (5)*
Wilmington, DE 19808 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mc. Karen Sheldon Sheldon, Harmon, Roisman & Weiss Docketing and Service Section (7)*
1725 I Street, N.W.
Office of the Secretary Suite 506 U.S. Nuclear Regulatory Commission Washington, DC 20006 Washington, DC 20555 Ms. Marjorie M. Aamodt R.D. #5 Coatesville, PA 19320 U c7 w
Daniel T. Swanson Counsel for NRC Staff