ML19332D723
| ML19332D723 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 11/13/1989 |
| From: | Reis H FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#489-9450 OLA-4, NUDOCS 8912050161 | |
| Download: ML19332D723 (28) | |
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UNITED STATES OF AMERICA wucLEAR REovLAT0ar COMMISSION
'89 N3V 15 A10:16 REFORE THE ATOMIC EAFETY AMD LICEMSIMG BOARD .
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In the Matter of ) .
) Docket Nos. 50-250 OLA-4 FI4RIDA POWER & LIGHT COMPANY ) 50-251 OLA-4
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(Turkey Point Plant ) (P/T Limits)
- Units 3 & 4) )
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LICENSEE'S RESPONSE IN OPPOSITION TO ;
MRAD /CEDORITO PETITION FOR t.r1VE TO IMTERVEME :
I. Introduction On October 27, 1989, the Commission's Secretary served upon the Board and the parties to this proceeding a " Petition For l Leave To Intervene" (Petition) in the proceeding by the Nuclear ;
Energy Accountability Project (NEAP) and Thomas J. Saporito, Jr. ,
(collectively referred to as " Petitioners"). 1/ The Licensee hereby submits its response in opposition to the Petition.
As demonstrated below, Petitioners have not established standing to intervene and the petition is inexcusably late, Petitioners having failed to show good cause for filing so belatedly. Moreover, Petitioners' participation will not be of assistance in developing a sound record; any interests 1/ The Petition was not served on the parties as required by '.,
the Commission's rules of practice and procedure and the Federal Register Notice. See 10 CFR S 2.701(b) (1989) and 53 Fed. Reg. 40,981 (1988). Apparently, the Petition was only submitted to the Licensing Board and was therefore ,
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served on the parties by the Secretary of the Commission.
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5 Petitioners may have are adequately represented by the existing parties; and Petitioners' participation will unduly delay the proceeding. Finally, the lack of substantive merit to the Petition is demonstrated by the fact that, of the five proposed contentions asserted, two are duplicative or encompassed in the p one remaining admitted contention in the proceeding; the other .
three proposed contentions suggested in the Petition are encompassed within the scope of other contentions in this proceeding that have either already been excluded from the proceeding or withdrawn because of having been based on erroneous premises.
II. Standing Under 10 CFR S 2.714(a)(2) (1989), a petition to intervene L must set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, and the specific aspects of the j subject matter of the proceeding as to which a petitioner wishes to intervene. Id.
The Commission has held that, in determining whether a j person has an interest which may be affected by a proceeding, l " contemporaneous judicial concepts of standing should be used."
Portland General Electric Co. (Pebble Springs Nuclear Plant, 1
l Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976). To have standing, a person must allege that he will be injured in fact as a iemult of the proceeding and that his interests fall within the J
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zone of interests protected by applicable statutes. Pebble l Springs, supra, 4 NRC at 613-14; Public Earvice Co. of Indiana ;
(Marble Hill Nuclear Generating Station, Units 1 and 2), CLI 1 10, 11 NRC 438, 439 (1980).
In order to establish " injury-in-fact" for standing, a petitioner must have a real stake in the outcome of the .
proceeding. Houston Lighting and Power Co. (South Texas Project, i Units 1 and 2), LBP-79-10, 9 NRC 439, 447-48, aff'd, ALAB-549, 9 NRC 644 (1979). AlthougE residence within 50 miles of a plant has been held sufficient to establish standing to assert safety questions, residence more than 75 miles from a plant will not alone establish an interest sufficient for standing as a matter of right. Compare Tennessee valley Authority (Watts Bar Nuclear L.
Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1977) gith Dairyland Power Cooperative (Lacrosse Boiling Water Reactor),
l ALAB-497, 8 NRC 312, 313 (1978). For the reasons set forth below, Petitioners do not meet the Commission's requirements on i
standing to intervene in this proceeding.
The Petition states that " Thomas J. Saporito, Jr. works in and about the city of Miami. . . . " 2/ However, the Petition does not state where his principal place of employment is or ,
i specify the nature or the extent of work that Mr. Saporito conducts in and about Miami or how much time he spends in Miami.
The only occupation suggested for Mr. Se.porito in the Petition is that of Executiv. Director of NEAP, which is located in Jupiter 2/ Petition p. 3.
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.. l and where other correspondence submitted in this proceeding indicates he resides. 3/ Jupiter is north of West Palm Beach and is in excess of 100 miles from Turkey Point. 1/ Accordingly, the Petition fails to establish that Mr. Saporito has sufficient l
contacts in the area within 50 miles of Turkey Point, and he, therefore, does not meet the Commission's " zone of interest" l
requirement.
The Petition identifies NEAP as a corporation with its principal place of business in Jupiter and states that NEAP is an environmental organization with the specific and primary purpose '
to operate for the advancement of the environment. 5/ As stated above, Jupiter is located more than 100 miles from Turkey Point.
Therefore, so far as NEAP's organizational interest is concerned, it does not fall within the 50 mila " zone of interest."
Nor does NEAP meet the requirements for intervening on 8 behalf of its members. When an organization undertakes to intervene on that basis, it must demonstrate that a member has s authorized the organization to represent him or her in the proceeding. Philadelphia Electric Co. (Limerick Generating Station, Units 1.and 2), LBP-82-43A, 15 NRC 1423, 1437 (1982);
2/ E.g Petition For Leave To Make Statement (March 7, 1989).
1/ In a Department of Labor proceeding involving Mr. Saporito, the Administrative Law Judge took official notice that the distance from Jupiter to Turkey Point was well in excess of 100 miles. In the Matter of Thomas J. Saporito v. Florida Power & Licht company, U.S. Department of Labor Case Nos.
89-ERA-7 and 89-ERA-17, (June 30, 1989) p. 5.
5/ Petition p. 1.
.w Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
LBP-78-37, 8 NRC 575, 583 (1978); Houston Lighting and Power Co. ,
(South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 444, aff'd ALAB-549, 9 NRC 644 (1979). The Petition fails to do so.
It does no more than identify eight members of NEAP, who appear e
to reside within 50 miles of Turkey Point, but nothing in the Petition suggests that these individuals have authorized NEAP to ,
represent them in this proceeding. The Petition merely states that those members "may be affected . . . . " 4/ Consequently, ,
the Petition fails to establish NEAP's standing as a representative of its " members". 2/
To the extent that NEAP is attempting to intervene on its 7 own behalf based upon the claim that it is an " environmental organization," intervention should also be denied. The Supreme Court has rejected such grounds for standing, stating that (A) mere " interest in a problem," no matter -
how longstanding the interest and no matter
-how qualified the organization is in 1/ Petition p. 2.
2/ The Petition also claims that NEAP and Mr. Saporito are each "an appropriate party to represent the interests of others . . . similarly situated whose interests might otherwise go unrepresented." (Petition p. 3) Petitioners .
may not attempt to intervene in order to represent the interests of unnamed individuals who have not authorized th9 Petitioners to intervene on their behalf. 523 Detroit Edison Co. (Enrico Fermi Atomic Power' Plant, Unit No. 2),
ALAB-470, 7 NRC 473, 474 n.1 (1978); Tennessee va.llay Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 (1977); Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 5 NRC 481, 483-84 (1977); Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-75-60, 2 NRC 687, 690 (1975).
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l evaluating the problem, is not sufficient by itself to render the organization " adversely affected" or " aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a :'
historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special -
interest" in this subject were enough to '
entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit ;
by any other bona fide "special interest" :
organization however small or short-lived. :
And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual ,
citizen with the same bona fide special interest would not also be entitled to do so.
sierra club v. Morton, 405 U.S. 727, 739-40 (1972). This holding is applied in NRC proceedings. SAA, e.g., Nuclear Engineering ca (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 742 (1978); T.epple Springs, supra, ;
4 NRC at 613; Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 421-23 (1976).
l Accordingly, NEAP and Mr. Saporito have not demonstrated standing to intervene on their own behalf or on the behalf of any NEAP members in this proceeding. Therefore, Petitioners' request to intervene as a matter of right should be denied. Nor has NEAP or Mr. Saporito attempted to make the required showing for discretionary intervention. San, e.g.. Pebble Springs, supra, 4 1
NRC at 616-17. As a result, no basis has been identified for 1
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intervention into this proceeding hy NEAP or Mr. Saporito, and much intervention should not be granted..A/
III. Petitioners Do Not Meet The Requirements Gewarnina 1 Lata Filed Petition To Intervena Petitioners have not made the requisite showing that they should be permitted to intervene out of time. 10 CFR S 2.714(a)(1) (1989) provides that the Licensing Board may exercise its discretion to grant a late-filed petition if it finds that a favorable showing has been made upon a balancing of the five factors there enumerated.1/ San Metropolitan Edison co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-83-25, 18 NRC 327, 331 n.3 (1983). In moving to intervene out of time, the burden of persuasion on those factors is clearly upon petitioner and the A/ In some circumstances, a licensing board might extend to petitioning intervenors an opportunity to cure, if possible, an initial failure to establish standing. Licensee submits that it would be inappropriate to do so here in view of the inevitable additional delay that would be involved in ruling.
upon an already inexcusably late petition.
1/ For convenience the five factors are repeated heres (1) 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 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 participation will broaden the issues or delay the proceeding.
l 10 CFR S 2.714(a)(1)(1-v) (1989). ,
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five factors must be addressed in the petition itself. Boston t edimon co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 466 (1965). Although all of the factors must be considered, a failure to demonstrate good cause for not filing on time requires ,
a compelling showing on the remaining four f actors. ' Nuclear Fuel f services. Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 274-75 (2.975); Philadelphia Electric co. (Limerick Generating Station, Unit 1), LBP-86-9, 23 NRC 273, 278-79 (1986).
A. Petitionara Have Not Ehown Good cause Petitioners have signally failed to meet their burden
! of showing goud cause for filing so late. Petitioners advance a l
number of excuses for not filing earlier, 1D/ but none has i
merit. First, Mr Saporito asserts that he was unable to file the Petition on time in November 1988 because at that time he was employed as an Instrument and Control Specialist at Turkey Point.
That employment did not render him unable to file. There is no Commission rule or regulation which prevents an employee of a j licensee from filing a petition to intervene. Nor could FPL have <
' discharged or otherwise discriminated against Mr. Saporito if he had filed such a petition while he was an employee. It is prohibited from doing so by Section 210 of the Energy ,
Reorganization Act of 1974 (42 U.S.C. S 5851 (1982)). e 1A/ Pursuant to the Federal Register notice announcing the proposed license amendments, all requests for a hearing and petitions for leave to intervene should have been filed by November 18, 1988. 53 Fed. Reg. 40,981 (1988). Therefore, the Petition is almost a year late.
j In any event, Mr. Saporito was dismissed from his position at Turkey Point on December 22, 1988. 11/ He has offered no reason why he waited over ten months from the time he no longer was an FPL employee to file the Petition. He has clearly been aware of this proceeding since as early as March 7, ;
1989, when he filed a " Petition For Leave To Make Statement" before the Board. 12/ And, at the March 21, 1989 prehearing I
conference, Mr. Saporito was seated at counsel table with r ,
Intervenor Lorion and he was identified by her as a member of the Center for Nuclear Responsibility. 13/ Therefore, Mr. Saporito cannot offer any excuses for waiting so long to file this Petition, especially since he has attempted in one way or another to participate numerous times in this proceeding since March 1989. 11/
11/ Sag In the Matter of Thomas J. Emporito v. Florida Power &
Light company, U.S. Department of Labor Case Nos. 89-ERA-7 and 89-ERA-17, (June 30, 1989), a' recommended decision by an Administrative Law Judge denying a complaint by Mr. Saporito regarding his dismissal.
12/ Saa Petition For Leave To Make Statement by Thomas J.
Saporito, Jr. (March 7, 1989).
13/ Transcript of March 21, 1989 prehearing conference p.5.
11/ Prior to this Petition, Mr. Saporito or NEAP have submitted the following documents to the Board in this proceeding:
l * " Statement For Consideration" 1 (April 6, 1989)
- " Amended Petition For A Limited Appearance Statement" (August 30, 1989)
- " Notice Of Appearance" (August 30, 1989)
(continued...)
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J The reason proffered by Petitioners for NEAP not having )
filed on time is that it "was not incorporated under the laws of Florida in November 1988 and thus, could not have petitioned for l leave to intervene." 15/ NRC case law is clear that newly-acquired organizational-existence does not constitute good cause i for delay in seeking intervention. Carolina Power and Light Co. I (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979), cited in couth carolina riectric and can co.
(Virgil C. Summer Nuclear Station, Unit 1), LBP-81-11, 13 NRC 420, 423 (1981). Accordingly, this argument does not meet the good cause requirement for a late filed petition to intervene. i i
Petitioners assert with respect to the copper content issue (Petitioners proposed Contention 1) that Petitioners were l~ under the impression that this issue would be addressed by 1
Intervenors, and that the Director of Nuclear Reactor Regulation in denying Petitioner Saporito's 2.206 request indicated that the copper content issue was the subject of a Licensing Board
- hearing. Therefore, Petitioners assert that they meet the good cause requirement with respect to this issue, because Intervenors withdrew their contention (Contention 3) addressing .
i l 11/(... continued)
- " Request For Contention Reconsideration" (September 7, 1989)
" Relevant Information For Consideration" (October 14, 1989) 15/ Petition p. 20.
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this issue. 11/
This assertion is bizarre in light of the view the ,
t Petitioners earlier volunteered to the effect that Contention 3 i should not have been admitted in the proceeding because copper l content was not considered in calculating pressure / temperature limits. 12/
In any event, Petitioners' arguments are contrary to NRC case law. A party may not demonstrate " good cause" for late intervention by attempting to substitute itself for another party that has withdrawn from the proceeding. Texas utilities riectrie Cat (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-88-12, 28 NRC 605, 609 (1988), reconsideration danlad, CLI-89-6, 29 NRC 348 (1989). By analogy, withdrawal by a party of a contention that a bystander expected the p6rty to litigate also ,
i fails to meet the good cause requirement for the bystander's late e
filed petition. 12/
11/. SAR Letter dated September 8, 1989 from Joette Lorion to the i
. Licensing Board Members.
12/ San Request for Contention Reconsideration (September 7, 1989) from NEAP to the Licensing Board Members p. 8; infra, pp. 19-20.
12/ Nor is the Petitioners' argument (Petition p. 21) that the denial of a 2.206 petition relating to copper content ,
constitute good cause for the late petition. The Director's denial merely stated with respect to that issue The Petitioner, in raising this issue, is seeking to use 10 C.F.R. S 2.206 procedures to reopen a matter that was the subject of an amendment that was noticed in the Federal RegistRI and fully considered. The Petitioner had the opportunity to request a hearing and failed to do so.
Florida Power & Light C2 (Turkey Point Nuclear Plant, Units 3 and 4), DD-89-8, slip op. at 7 (September 25, 1989).
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It is therefore clear that Petitioners have not shown i good cause for this very late Petition. With the date for 7
submitting written testimony already set for December 18, 1989, 1
and the hearing set to begin on January 10, 1990, Petitioners' failure to show good cause weighs heavily indeed.
B. There Are other Means Available For i Petitionara To Protect Their Interests As discussed above, Petitioners have already attempted to protect any interests they may have in the form of a petition filed pursuant to 10 CFR S 2.206. That petition was denied in Florida Power & Light Co. (Turkey Point Nuclear Plant, Units 3 and 4), DD-89-8, slip op. (September 25, 1989). In denying the petition, the Director of Nuclear Reactor Regulation examined the merits of Petitioners' claims with respect to the copper content issue, the Licensee's conduct of the integrated surveillance program, and issues concerning upper-shelf energy, and concluded that these claims were without bcsis. Petitioners should not be permitted to assert that other means are not available to protect their interests when they have been previously asserted, considered and determined to be wanting in merit. And, if they believe that in some respect the interests sought to be asserted in the instant Petition were not in fact addressed in the Director's Decision, they are not barred from filing another petition under 10 CFR S 2.206.
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j C. Petitioners Have Not Demonstrated That They Will contribute To Davale_ning a sound Record I. Petitioners claim that their participation in this j proceeding may reasonably be expected to assist in developing a l
sound record because Mr. Saporito's seven years of experience as l
l an Instrument and Control Specialist with the Licensee have given 1
l him a " broad knowledge of nuclear power plant operational and i
1 technical issues" and will enable him to " assist the Board and j the parties in understanding the complex issues. ... " 11/ ]
Under the third factor, the extent to which the Petitioners' participation any reasonably be expected to assist in developing a sound record, 10 CFR S 2.714(a)(1)(iii) (1989) requires that Petitioners " set out with as much particularity as j l possible the precise issues [they plan) to cover, identify
[their) prospective witnesses, and summarize their proposed I testimony." Mississippi Power & Light Co. (Grand Gulf Nuclear 1
l Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982); ans also Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) ALAB-743, 18 NRC 387, 399 (1983). Also, the Commission has recently held that in order to prevail on this factor, the moving party must " demonstrate that it has special expertise on the subjects which it seeks to raise." Commonwealth Edison Co.
(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 L
NRC 241, 246 (1986).
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12/ Petition pp. 21-22.
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I Petitioners make no attempt to identify the witnesses that the Petitioners might call or to summarize the evidence these witnesses might give. Furthermore, Mr. Saporito's experience as an Instrument and Control Specialist does not I appear to be at all relevant to the validity of the pressure / temperature limits central to this proceeding and does not " demonstrate that he has special expertise" with respect to j issues concerning pressure / temperature limits. In addition, as a
discussed in Section IV, infra, Petitioners do not identify any new issues in this proceeding that have not already been asserted i by the admitted Intervenors. Therefore, the Petition does not !
demonstrate that Petitioners participation in this proceeding will contribute to the development of a sound record, and this factor weighs against a grant of late intervention.
D.- Any Interests Petitioners May Have Are Represented By Existing Partiam Any interests Petitioners may have in this proceeding are represented by the existing parties. As demonstrated in Section IV, infra, all of the subjects covered by the Petitioners' proposed contentions have been addressed by l Intervenors in this proceeding. Petitioners' proposed Contention ,
l l -1 dealing with copper content is the same as Intervenors' i Contention 3 which was withdrawn on September 8, 1989.
O Petitioners' proposed Contention 2 is essentially the same as l Intervenors' admitted Contention 2. Petitioners' proposed Contentions 3 and 4 address upper shelf energy issues, which were also asserted by Intervenors. However, the Licensing Board has i
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already ruled that issues addressing questions about upper shelf energy are outside the scope of this proceeding. 2D/ Finally, Petitioners' proposed Contention 5 adopts the arguments contained in an October 18, 1989 letter from Dr. George C. Sih to Intervenors. Intervenors have submitted this letter in support l
,. of Intervenors Contention 2 to the Board as Attachment A to "Intervenors' Response To Licensee's Motion For Summary Disposition Of Intervenors' Contentions" (October 19, 1989). ;
Licensee does not believe Dr. Sih's letter is admissible as ,
evidence because it is not accompanied by an affidavit, it constitutes an impermissible attack upon the Commission's regulations, and it does not raise a genuine issue of material fact.21/ However, if there are any admissible issues raised in
! Dr. Sih's letter, they are already encompassed within intervenors t
Contention 2.
l E. Petitioners' Participation Will Unduly Delay This Proceeding The significance of the tardiness of a petition to intervene will generally depend on the posture of the proceeding at the time the petition surfaces. Washington Public Power j supply Systea (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1173 (1983), citing Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 398-399 l
2D/ Nemorandum and Order (June 8, 1989) p. 24.
l 21/ San Licensee's Reply To Intervenors' Response To Licensee's Motion For Summary Disposition Of Intervenors' Contentions (November 6, 1989) pp. 10, 17-20, 29-30.
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(1983). Furthermore, if a petition is extremely late, the most ,
- important factor is the delay factor. Detroit Edison Co.
(Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 NRC 759, 761-62 (1978).
If Petitioners are allowed to intervene, it will
- undoubtedly delay this proceeding. The parties have already i conducted discovery, the Licensee has filed its motion for summary disposition, and Intervenors have responded to it.
Prefiled written testimony is due on December 18, 1989, and a hearing is scheduled for January 10, 1990, if Licensee's motion ,
for summary disposition is denied.
Given the current status of the proceeding, there can be no serious question that if Petitioners are allowed to intervene in this proceeding it will cause delay. As the Appeal
! Board has noted in a previous case in which a late petitioner l
t sought intervention on previously admitted issues shortly before hearings were scheduled to begin
! Even if the League were required to
!' take the proceeding as.it finds it, experience teaches that the admission of a new party just i before a hearing starts is bound to confuse or complicate matters.
And, even putting that to one side, delay can otherwise be avoided only if the parties adverse to the League forego important procedural rights, including the right-to discovery . . . . It is scarcely equitable to give the League credit for not causing delay when that -
result could be achieved only because the circumstances would coerce other parties into waiving substantial rights.
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virginia riectric and power co. (North Anna Station, Units 1 and 1 l
2), ALAB-289, 2 NRC 395, 400 (1975) (footnote omitted), quoted in l Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit )
1), ALAB-743, 18 NRC 387, 402-403 (1983). Therefore, since ;
admittance of Petitioners into this proceeding will cause undue delay, the Board should deny the Petition.
IV. -1A=fasibility of Petitioners' Pro _ nosed cont'antion As is evident from the above discussion, Petitioners have not demonstrated that they have standing and, even if they did, '
have failed to meet the burdens which a late petitioner must ,
carry. Neverthaless, we go on in this part of our response to
' demonstrate that their proposed contentions are encompassed within Intervenors' contentions that have been either withdrawn as lacking in merit, have been excluded, or are being litigated.
- 1. Proposed Contention 1 states: '
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Petitioners contend that the license amendments.134 and 128 constitute a significant nuclear safety concern wherein ;
the requirements of General Design Criterion (GDC) 31 of Appendix A to 10 CFR Part 50 will I not be achieved with the pressure / temperature I
limits and operating parameters established
[ in the amendments.
The requirements of GDC-31 of Appendix A, 10
, CFR Part 50 require that the reactor coolant pressure boundary be designed with sufficient l margin to ensure that, when stressed under operating, maintenance, testing, and postulated accident conditions, (1) the boundary behaves in a non-brittle manner, and
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I (2) the probability of a rapidly propagating i fracture is minimized.
Petitioners assert that the Licensee incorrsetly identified the copper content of :
the Turkey Point reactor vessels weld metals I as 0.26 Cu wt% wherein the copper content I reactor vessels weld metals is significantly ,
higher. Therefore, the Licensee calculated the revised pressure / temperature limits and ,
operating parameters using non-conservative and incorrect data. This incorrect calculation by the Licensee increases the possibility that when stressed, the reactor ,
vessels will behave in a brittle manner and could result in a fracture and subsequent loss of both reactor vessels integrity.
GDC-31 requires that a sufficient safety margin exist-in the establishment of pressure / temperature limits and operating parameters 1of a light water reactor. Contrary to GDC-31, it would appear that a sufficient safety margin does not exist because the pressure / temperature limits and operating parameters were calculated and established without due consideration for the copper -
. content of-the reactor vessel and weld metals L of the vessel.
L o The establishment of the revised pressure / temperature limits and operating i parameters embraced within the amendments is ,
therefore non-conservative and the ART is unrealistically low. Therefore, the revised pressure / temperature limits and operating -
parameters are not sufficiently restrictive to ensure that an adequate margin of safety exists to prohibit a brittle fracture of the reactor vessel. ;
Consequently, reasonable assurances that the boundary (reactor vessel), behaves in a non-brittle manner and that the probability of a rapidly propagating fracture is minimized, do not exist.
Petitioners' proposed Contention 1 and the bases for proposed Contention 1 allege that the Licensee incorrectly calculated the revised pressure / temperature limit curves for Turkey Point based 1
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on an incorrect copper content of .26% for the reactor vessel welds. This proposed Contention is essentially the same as Intervenors' Contention 3 which was withdrawn by the Intervenors from.this proceeding.
In calculating the Adjusted Reference Temperature (ART) for Turkey Point Units 3 and 4, FPL used the methodology contained in Regulatory Guide 1.99, Revision 2. Regulatory Guide 1.99, Revision 2, identifies two alternative methods for determining the chemistry factor used in calculating the ART. The Regulatory Guide states that the copper and nickel content of the material is to be used in calculating the chemistry factor when surveillance capsule test data is not available. On the other hand, when two or more credible surveillance capsule data points are available, the surveillance test data are to be used for calculating the chemistry factor. With respect to the P/T limits, FPL determined the chemistry factor for purposes of calculating the ART based upon the results.of surveillance test data from its NRC approved integrated surveillance program.
Thus, FPL did not use any value for copper and nickel content in calculating the chemistry factor and ART for the welds and current P/T limits for Turkey Point Units 3 and 4. 22/
In fact, the Petitioners have previously admitted that the copper content of the Turkey Point reactor vessel welds was not 22/ Eng Affidavit of. Stephen A. Collard on Contentions 2 and 3 at 15 29-31 (September 11, 1989).
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used in calculating the P/T limits. In a September 7, 1989 submittal to the Board, FEAP and Mr. Saporito, stated:
NEAP has reviewed that portion of Petitioner's [ sic] [Intervenors') Contention 3 which concerns the 0.26% copper content of the vessel weld materials and which the Board has admitted into this proceeding.
We_are.at a loss to understand the Board's '
admission of this part of Contention 3 wherein the Petitioner (Intervenors), ,
Licensee, and the Staff all take issue with 1 the 0.26% copper content. l NEAP has exhaustively' reviewed numerous ,
documents germane and relevant to the P/T ]
limit amendments and NEAP has consulted with 1 licensee engineers who were directly involved with the P/T limit calculations and NEAP has consulted NRC engineers concerning the j calculation of the P/T limits embraced within the amendments. ]
As a result of NEAP's review of NRC Regulatory Guide 1.99 Revision 2 (May 1988)
- and after consultation with Staff and Licensee engineers, NEAP understands that no consideration for the weld material content of copper is required nor was utilized by the Staff or Licensee in the determination of the new P/T limits embraced within this ,
proceeding.
NEAP therefore concludes that the Board may wish to revisit this part of Contention 3 and deny its admission to this proceeding. 22/
Therefore, not only is this proposed contention lacking in bases, it is contrary to previous statements made by Petitioners.
Since the Licensee did not use copper content in calculating the ART for the Turkey Point reactor vessel welds, and Petitioners' 22/ SAA Request for Contention Reconsideration (September 7, 1989) from NEAP to the Licensing Board Members p. 8.
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have conceded this point, proposed Contention i should be I
rejected.
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- 2. Proposed Contention 2 states: :
contantion 2 Petitioners contend that the license amendments 134 and 128 constitute a significant nuclear safety concern wherein the requirements of General Design Criterion (GDC) 31 of Appendix A to 10 CFR Part 50 will i not be achieved with the pressure / temperature limits and operating parameters established ,
in the amendments.
The requirements of GDC-31 of Appendix A, 10 CFR Part 50 require that the reactor coolant pressure boundary be designed with sufficient margin to ensure that, when stressed under operating, maintenance, testing, and postulated accident conditions, (1) the
- boundary behaves in a non-brittle manner, and l (2) the probability of a rapidly propagating fracture is minimized.
l Petitioners assert that the Licensee j incorrectly administered their integrated j [ stet] surveillance program as delineated L pursuant to 10 CFR 50, Appendix H and :
E therefore the Licensee's determination of the ART embraced within the license amendments is incorrect. The establishment of the revised
- pressure / temperature limits and operating parameters embraced within the license amendments is therefore non-conservative and the ART is unrealistically low.
Therefore, the revised pressure / temperature limits and operating parameters are not sufficiently restrictive to ensure that an adequate margin of safety exists to prohibit a brittle fracture of the reactor vessel.
Consequently, reasonable assurance that the boundary (reactor vessel), behaves in a non-l brittle manner and that the probability of a rapidly propagating fracture is minimized, do not exist.
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f Petitioners' proposed Contention 2 and the bases for proposed Contention 2 assert that the Licensee has incorrectly i administered its integrated. surveillance program pursuant to 10 CFR Part 50 Appendix H. This issue has already been admitted
-into this proceeding as Intervenors' contention 2 21/ l
- 3. Proposed Contentions 3 and 4 states contention 3 Petitioners contend that the license amendments 134 and 128 constitute a significant nuclear safety concern wherein .
the requirements of General Design Criterion
'(GDC) 31 of Appendix A to 10 CFR Part 50 will not be achieved with the pressure / temperature limits and operating parameters established in the amendments.
5 The' requirements of GDC-31 of Appendix A, 10 CFR Part 50 require that the reactor coolant pressure boundary be designed with sufficient margin to ensure that, when stressed under operating, maintenance, testing, and -
postulated accident conditions, (1) the boundary behaves in a non-brittle manner, and ,
(2) the probability of a rapidly propagating fracture is minimized.
~
Petitioners assert that the Turkey Point Units 3 and 4 reactor vessels have sustained sufficient neutron irradiation damage to cause the shift of the RTc7 levels outside the acceptable criteria established in 10 CFR 50, Appendix G Section IV.B.
Therefore, the revised pressure / temperature limits and operating parameters are not sufficiently restrictive to ensure that an adequate margin of safety exists to prohibit a brittle fracture of the reactor vessel.
Consequently, reasonable assurances that the boundary (reactor vessel), behaves in a non-11/ Memorandum and Order (June 8, 1989) p. 17.
[ l I
~23- l brittle manner and that the probability of a rapidly propagating fracture is minimized, do not exist. '
contention 4 -
Petitioners contend that the license emendments 134 and 128 constitute a
- significant nuclear safety concern wherein -
the requirements of General design Criterion (GDC) 31 of Appendix A to 10 CFR Part 50 will not be achieved with the pressure / temperature limits and operating parameters established ,
in the amendments. .
t The requirements of GDC-31 of Appendix A, 10 CFR Part 50 require that the reactor coolant .
pressure, boundary be designed with sufficient ;
margin to ensure that, when stressed under ,
operating, maintenance, testing, and postulated accident conditions, (1) the-
- boundary behaves in a non-brittle manner, and ,
(2) the probability of a rapidly propagating fracture is minimized.
Petitioners assert that the Turkey Point Units 3 and 4 reactor vessels have sustained l sufficient neutron irradiation damage to ,
cause the Charpy upper-shelf energy (USE), to fall below 50 ft-lb throughout the life of the vessels as required by 10 CFR 50, Appendix G.
Therefore, the revised pressure / temperature limits and operating parameters are not sufficiently restrictive to ensure that an adequate margin of safety exists to prohibit a brittle fracture of the reactor vessel. i Consequently, reasonable assurances that the boundary (reactor vessel), behaves in a non-brittle manner and that the probability of a
. rapidly propagating fracture is minimized, do not exist.
Petitioners' proposed Contentions 3 and 4 and the bases for 1
these proposed contentions address issues concerning whether the upper-chelf energy of specimens meets the requirements of 10 CFR L
p
. i 1
Part-50 Appendix G.IV.B. These proposed cor.tentions should be rejected because the Board has already ruled that issues ,
relating to upper-shelf energy are outside the scope of this
" ' proceeding. 25/. ;
- 4. Proposed' Contention 5 states:
contention 5 Petitioners contend that the license '
amendments 134 and 128 ci..stitute a
, significant nuclear safety concern wherein the requirements of General Design Criterion (GDC) 31 of Appendix A to 10 CFR Part 50 will not be achieved with the pressure / temperature
?.imits and operating parameters established
.'.n the amendments.
'the requirements of GDC-31 of Appendix A, 10 CFR'Part 50 require that the reactor coolant pressure boundary be designed with sufficient margin to ensure that, when stressed under operating, maintenance, testing, and postulated accident conditions, (1) the boundary behaves in a non-brittle manner, and '
(2) the probability of a rapidly propagating fracture is minimized.
Petitioners assert that the Turkey Point Unit i
3 data are incomplete and not sufficient to predict the pressure / temperature' limits for g Turkey Point Unit 4. Additional factors such as strain rate and load-history dependent damage accumulation should be considered.
While the pressure / temperature limits depend on the combined effects of material l
properties, operating temperature and neutron L irradiation change in strain rate and can p significantly affect the fracture toughness y and shift.in RTer. This influence.has'not p been taken into account in determining the ,
pressure / temperature limits.
l l
l 25/ Memorr,adum and Order (June 8, 1989) p. 24.
u
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Petitioners' proposed Contention 5 and the bases for the proposed contention assert that data for Turkey Point Unit 3 is not complete because " factors such as strain rate and load-history dependent damage accumulation should be considered." Petitioners
- base this proposed contention on an October 18, 1989 letter from Dr. George C. Sib to Intervenors. As noted earlier, Interver. ors ,
have already submitted this letter to the Board in support of l Intervenors' contention 2 21/ Therefore, any litigable issues in Dr. Sih's letter are already encompassed withirt the scope of -
Intervenors' existing Contention 2.
f 21/ Once again, Licensee asserts that this letter is not admissible.
nr e 4 ,
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- v. Carsbutistn .
c 3 For.the foregoing reasons, Petitioners should not be granted leave ~to intervene into this proceeding. Petitioners have not
' demonstrate'*_ t heir standing to intervene, - they have not met the requirements for a late filed petition, and all of Petitioners' proposed contentions have been or are being asserted in this proceeding by the Intervenors. Therafore, late intervention should be denied.- l Respectfully submitted, !
i -Harold F. Reis
f .
Steven F. Frantz '!
Kenneth C. Manne !
Newman & Holtzinger, P.C. i 1615 L Street, N.W.
Washington, D.C. 20036 !
- (202) 999-6600 i
Co-Counsel John T.' Butler, Esq.
Steel Hector & Davis ,
4000 Southeast Financial Center !
Miami, Florida 33131-2398 !
Dated this 13th day of November 1989. !
o --
J' .x // ?. !
.c e.
- ,. . wit:
n; UMc UNITED STATES OF AMERICA NUCLEAR REOULATORY COMMISSION
'89 NOV 15 A10:16
- l. BEFORE THE ATOMIC. SAFETY AND LICENSINO BOARD gn m o udCM 1E t ;! r y, I' U:L kC-In the: Matter of- -)
)
-FLORIDA' POWER & LIGHT ) Docket Nos. 50-250 OLA - 4 COMPANY ) 50-251 CLA - 4 i
)
-(Turkey Point Plant, Units 3 and 4) '
) (P/T Limits)
)
CERTIFICATE OF SERVICE I hereby certify that a copy of " Licensee's Response In Opposition To NEAP /Saporito Petition For Leave To Intervene" has been served on the following-by deposit in the United States ,
mail, first class,. properly stamped and addressed on the date shown below, B. Paul Cotter, Esq., Chairman
- i Atomic Safety and Licensing Board Panel
'U.S. Nuclear Regulatory Commission Washington, D.C. 20555~
Hon. Glenn-0. Bright
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Hon. Jerry Harbour
- 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 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of the Secretary
-U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section (Original plus two copies)
, L,..k l ?
3o !
?~ ; .
s ,
L* a ,
-Joette Lorion, Director **
Center for Nuclear- Responsibility 7210 Red Road #217
(_ Miami, Florida 33143 Janice= Moore
- Patricia A. Jehle OfficeLof General Counsel U.S. Nuclear Regulatory Commission p ,, Washington, D.C. 20555 Richard Goddard'
? U.S. Nuclear. Regulatory Commission l; -. 101 Marietta St., N.W. #2900 Atlanta,; Georgia 30323 ,
-i John ~T. Butler' Steel, Hector.&-Davis ~;
4000. Southeast Financial Center-Miami, Florida'.33131 Thomas J. Saporito, Jr.**
Executive Director, NEAP l 1202 Sioux Street Jupiter,. Florida 33458 Dated this 13th day of November 1989.
- l, !) \~.,
Kenneth C. Mann'e N Newman & Holtzinger, P.C.
1615 L' Street, N.W.
Suite 1000
, Washington, D.C. 20036 L
- Additional delivery by hand.
- Additional. delivery by Federal Express.
- _ .__. . . - .