ML19341D769
| ML19341D769 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/07/1981 |
| From: | Bordenick B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104090559 | |
| Download: ML19341D769 (11) | |
Text
V April L-7, 19 e c N)
UNITED STATES OF AMERICA d,?/
)TV NUCLEAR REGULATORY COMMISSI0il
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4 2
BEFORE THE ATOMIC SAFETY'AND LICENSING BOAR V
&,U UiliTTo
-In the flatter of
)
)
LONG ISLAND LIGHTING C0!PANY
)
Docket No. 50-322
)
(Shoreham Nuclear Power Station,
-)
Unit 1)
)
NRC STAFF'S ANSUER TO MOTION OF INTERVENOR SH0REHAlt OPP 0NENTS C0ALITION FOR ACCEPTANCE OF PARTICULARIZED CONTENTION 19' I.
INTRODUCTION Intervenor Shorehan Opponents Coalition (SOC) on 11 arch 18,1981, noved this Atomic Safety and Licensing Board (Lice.nsing Board or Board)
"for admission of particularized Contention 19 for litigation in the above-captioned proceeding."E For the reasons discussed infra, the
' Staff supports in part and oppo:es in part 50C's Motion.
II. BACKGROUND On January 24,1980, S0C filed a petition which. sought, inter alia, admission a: a late Intervenor in this proceeding.E The Staff in its y
"itotion of Intervenor [ SOC] for Acceptance of Particularized Contention 19" (Motion, at page 1).
A copy of SOC's proposed Contention 19 is attached to the notion as Attachnent A.
y
" Petition of the Shorehaa Opponents Coalition (SOC) to Suspend l
Construction Permit for the Long Island Lightin.g Company's Shorehan l
Nuclear Power Station (Unit 1) and to Renotice Hearing in Docket i
No. 50-533, or in the Alternative, to Permit late Intervention of l
S0C Pursuant to 10 C.F.R. Part 2, Section 2.714" (Petition).
l l
l 810.4000 6'I9 G
n.j i answer to the S0C petition filed on February 13, 1980,E supported admission of S0C as an Intervenor provided certain limitations were placed on 50C's participation.
(Answer, pp. 15-16). These proposed limitations were accepted by the Board in its Order ruling on SOC's petition which was issued on flarch 5,1980.0 Thus, 50C was precluded by the Board fro'n advancing "[c]ontentions which duplicate those of existing parties or otherwise replow[ing] old ground, or which relate to matters that properly could have been raised at the onset of this proceeding t'
(Order, p. 12, emphasis added).
In sum,
"* *
- SOC's direct I
participation [was] limited to new issues relating to the accident.at TMI or to recently discovered construction defects" (Id., footnote omitted).E SOC's original Contention 19, set forth in its petition, asserted the following:
- 19. Applicability of Regulatory Guides Current flRC. procedure does not require that existing nuclear plants under construction meet the criteria contained in flRC Regulatory Guides. As indicated by the accident at Three Mile Island Unit 2, the accident was aggravated or caused by factors which were the subject of Regulatory Guides but which were i
not incorporated into the design of Three Mile Island l
Unit 2.
Similarly, the Shoreham fluclear Unit 2 l
design does not incorporate all safety requirenents I
contained in recent regulatory guides. The failure of the applicant and staff to demonstrate that the Shoreham design conforms with each regulatory guide l
presently applicable to plants of the GEBWR type l
unduly endangers the public health and safety."
(SOC Petition at p. 52).
y "i4RC Staff Answer to the Petition of the Shorehan Opponent's I
Coalition" (Answer).
1 4_/
" Order Ruling on Petition of Shorehan Opponents Coalition" (Order).
5/
See SOC's admitted Contention 6(a)(1) regarding alleged construction i
deficiencies at Shoreham. Such alleged deficiencies are not l
involved in proposed Contention 19.
_,4
- 6. The Staff's position as to this contention, set forth in its answer, tts as follows:
- 19. Applicability of Regulatory Guides.
This cont +ntion is dismissable outright for it does l
not state an issue.
It is claimed that f4RC current procedure does not require that existing' nuclear plants under construction.must meet the criteria contained in Regulatory Guides. -This is true, flo.
plant is required to meet the-terms of' a Regulatory Guide. A Regulatory Guide is' not a regulation but nerely one means of achieving an acceptable level of safety. There is no regulatory requirenent that.a Regulatory Guide be met and so the failure of an 4
applica.cion or a facility to conform with all Regula'.ory Guides simply does not state an issue.
This coitentF.n should be dismissed.
(Staff answer at pp. 2L26).
The Board in its. Order ruled as follows con'cerning SOC's -
i Contention 19:
- 19. Applicability of Regulatory Guides (SOC Petition at 52) 50C contends that the Shorehan Unit _2 design does not neet all safety requirenents contained in recent regulatory guides and as a consequence unduly endangers the public health and safety.
Petitioner says, further, that the THI-2 accident was aggravated or caused by factors which were incorporated into the design of THI-2, although not the subject of i
Regulatory Guides. Staff believes that this contention fails to state an issue and therefore should be dismissed.
(Sti.ff Answer at 25-26). We believe, however, that it would be appropriate for the Board to consider whether the standards or goals of recent Regulatory Guides have been met. 50C nust, however, specify which recent Regulatory Guides it believes have not been net, and why it believes they should be net.
S0C is granted leave to further particularize Contention 19.
(Board footnote onitted).
(Board Order, pp. 21-22;.
6/
The Shorehan facility, as noted by the Board in its Order, is in fact designated as Unit 1.
b.-
< III.
DISCUSSION Since issuance of the Board's Order SOC, Applicant.and Staff have met on several occasions in an' attempt to reach a stipulation as to Contention 19. The results of those meetings are outlined in SOC's'
!!otion and Attachnent A.
The Staff is generally of. the view that SOC, as required by the Board, has adequately specified in Attachnent A which k
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Regulatory Guides 3 believes have not been met for Shorehan and'why it believes they should be net. However, the Staff reiterates that failure
.to meet a Regulatory Guide would not prevent the licensing of a plant.
Regulatory Guides are nerely Staff suggestions of ways in which regula-tory and statutory requirements for plant licensing nay be met.
Should it fail to be established that a Regulatory Guide is met, it still could be shown that the underlying legal requirements for plant licensing have i
been net. See Petition For Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406-407 (1978); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 811 (1974).
Further, as SOC notes the parties have been unable to reach agree-i ment on what constitutes a "recent Regulatory Guide" as the phrase is l
used in the Board Order of March 5,1980.
50C's position regarding that i
question is set forth in its notion. Applicant's position will, we understand, be submitted to the Board.
Following is the Staff's position.
A.
Since SOC's participation in this proceeding had its genesis I
with the accident at Three Mile Island (Tril), the Staff is of the view I'
that the term "recent Regulatory Guides" can only be construed to mean i
c,.. 1 those changes to ' Regulatory Guides or revisions of. previous guides made between the date of the THI-2. accident and the date SOC filed its
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petition.7f.
The following Regulatory Guides were issued since -the TMI accident:
Division 1_/ Regulatory Guides
'8 Date 4/19 R.G. 1.35 Rev. 3 (For Coment) 6/79 R.G.'l.84 Rev. 15 6/79-R.G. 1.85 Rev. 15 8/79 R.G. 1.145' Rev. 0 (For Connent) 10/79-R.G. 1.137 Rev. 1-10/79 R.G. 1.143' Rev. 1 10/79.
R.G. 1.140 Rev. 1 12/79 R.G. 1.9 Rev. 2
.0f the above-listed Guides only R.G. 1.145, Rev. 01/; R.G.1.143, Rev. IN ; R.G. 1.140, Rev. Ib and R.G. 1.9,1Rev. 212f are set forth in
.50C's revised Contention 19 and should be admitted for consideration in this proceeding. Similarly it is only compliance.with recent changes _in these Regulatory Guides made since the T!!I accident that can be raised by the late intervenor S0C.
7f As to Regulatory Guides issued af ter the accident at TMI, '.,0C'could of course seek leave to file a late contention as provided by 10 C.F.R. 2.714.
8]
" Power Reactor Guides" 9_/
" Atmospheric Dispersion Models For Potential Accident Consequence Assessments at fluclear Power Plants" 10f " Design Guidance For Radioactive Waste Management Systems, Structures', and ComponeM i Installed in Light-Water-Cooled fluclear Power Plants.
-11/ " Design, Testing, and 11aintenance Criteria for tiornal Ventilation i
Exhaust Systen Air Filtration and Absorption Units.of Light-Water-Cooled fluclear Power Plants."
12/ " Selection, Design, and Qualification of Diesel-Generator Units Used as Standby (0nsite) Electric Power Systens at fluclear Power Plants."
as B.
S0C rejects the Staff's view and argues, notion at page 4, that (1) "[t]he thrust of SOC's. Contention '19. and its relevance to the acci-a dent at Tril-2 is unnistakable" and (2).that "[t]he T!il accident was i
aggravated by _ Regulatory Guides that wert. ' current' prior to that accident." However, SOC's notion is devoid of any attenpt to show how or why the Regulatory Guides cited in SOC's proposed-Contention 19 are relevant to the xcident at TMI or how or why the TMI accident was aggravated obstensibly by failure of the TMI~ licensee to be _in compliance with Regulatory Guide; or revisions thereof cited by 500 that were in existence prior to the TMI accident.
In the absence of such a showing, SOC is, in effect, asking this Board to do indirectly what it has already ruled it would not do directly. tiamely, SOC, by seeking adnission'of-Contention 19 as set forth in Attachment A to its notion, is asking the Board to accept "catters that properly could have been raised-at the onset of this proceeding" (Order, supra, at p.12).
SOC's argunents confuse the meaning of the word "recent", which is -
used in the Board Order of Ity 5,1980,' and the word " current", which is not used in that Order. Webster's fiew World Dictionary (Second Collece Edition) defines, "recent" in part, as:
"done, nade, etc. just before f
the recent time [before the TMI accider.t]" and "of a time just before the present tine." The word " current" is there defined as:
"at ;he present tine, contenporary, of nost recent date" (emphasis added).
500 in urging l
adnission of its proposed Contention 19 would now have the Board substitute the word "recent" for " current." S0C thus seeks to change the i-
[
Board Order to allow it to litigate compliance with current Regulatory Guides, rather than only those changes incorporated into recent
e.,
- n. Regulatory Guides issued subsequent to the event prenising the basis of--
allowing S0C to intervene, the TMI accident.
Moreover, in seeking admission of Contention 19 in the form offered by it, S0C is asking this Board to devote a substantial amount of NRC Staff and Board resources to a proposed contention which, as stated by the Staff in our answer to 50C's petition, supra, cannot and does not state a litigable issue.
In this regard, the Staff notes that the Appeal Board has recently addressed itself to the question of allocation of
_ personnel resources in Duke Power Company (Perkins fluclear Station, Units 1, 2 and 3), Docket flos. 50-488, 50-489 and 50-490, unpublished Menorandun dated March 20, 1981, atpage7,andhasstated$
We can officially notice the concern of the Connission regarding,nost particularly, the progress i
of licensing action on those nuclear plants which are either fully built or near conpletion. This concern has prompted a fresh and more ir,tensified look into the natter of allocation of personnel resources.
(footnote onitted).
While the Appeal Board's menorandun in Perkins, supra, dealt with the question whether to schedule oral argument on an appeal in a l
proceeding where no construction permit had been authorized and the Applicant's plans as to the facility were in doubt, the Staff is of the l
view that the above-quoted language should equally apply to admission of a contention which does not state a litigable issue. This is par-ticularly so when, as further discussed below, S0C already has a l
contention which directly relates to the T!!I accident.
C.
According to 50C "[i]t is the flRC's failure to order compliance i
with the goals and standards of those Regulatory Guides enunciated at the time of the Titi accident which S0C contends raises a TMI related issue."
l l
l
e..,. \\
(Hotion at page 5). S0C seeks support for its argunentation by extensively
' m both the KeneneyE and Rogovin b eports as R
regards backfitting.
(Motion, pp. 5-7).
Assuning %or the sake of.
discussion' that SOC's assertions set forth in its motion have merit, it is the Staff's view that they should have been advanced in connection with SOC's "TMI Contention" (Proposed Contention 7(a)) on which the parties will shortly be holding informal discussions and negotiations.E In this regard, the parties will also be addressing, inter alia, CLI-80-42 and the Appendix to that Comm.ission Memorandum and Order issued on December 18, 1980.
(Further Comission Guidance for Power Reactor Operating Licenses).
It is in this context that the "TMI accident,"
which forms the undergirding for 50C's participation in this proceeding, should be considered by the parties and the Board.
D.
Finally, as noted in 50C's motion at page 3:
... of the 145 Regulatory Guides subject to review ad informal Discovery by. the parties, approxinately
.J0 of those Regulatory Guides have been resolved to the satisfaction of each party.
S0C fully expects that additional Regulatory Guides from the 46 that
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remain will be reviewed and resolved prior to hearings in the informal discovery process on this
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issue. Thus, discussion among the parties has already substantially contributed to answering the..
Board's question of whether the standards or goals of recent Regulatory Guides have been met.
4 13] " Report of the President's Comission on the Accident at Three liile Island," October 1979.
W Three flile Island: A Report to.ne Commissioners and to the Public, January 1980.
-15/ See in this ragard the footnote set forth by S0C at the botton of page 1 of Attachment A to.its Motion wherein S0C has reserved the right to (attempt) particularization of a contention as to 11 specified Regulatory Guides as part of its "TMI contention".
...2
_g.
.The Staff-agrees that. in the event Contention 19 in the form proposed by S0C is admitted for litigation, it is likely that additional Regulatory Guides from the 46 set forth in SOC's proposed Centention 19 could be reviewed and. resolved by the parties prior to hearings if the contention as submitted by 50C is adaitted by the Board. However, we do not believe that.this possibility can or should constitute a basis for-admission of the contention in question in the form proposed by S0C.
IV.
CONCLUSION The Staff submits that only the Regulatory Guides 1.145, Rev. 0; 1.143, Rev. 1; 1.140, Rev. 1, and~1.9, Rev. 2 to the extent they differ fron Regulatory Guides in effect before the TMI accident can be considered "reces.t" and should be admitted as a part of a limited Contention 19. E Respectfully submitted,
&lf N 'M Bernard M. Bordenick
- Counsel for NRC Staff Dated at Bethesda, Maryland, this 7th day of April,1981.
M/ Again Staff reiterates that failure to meet Regulatory Guides would not foreclose licensing of a plant, if statutory and regulatory requirements were otherwise net.
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CERllFICAIE-OF bra!!CE I hereby certifv that ' copies' of "NRC STAFF'S ANSWER TO MOTION OF INTERVENOR -
SHOREHAM OPP 0NEtiTS C0ALITION FOR: ACCEPTANCE OF PARTICULARIZED CONTEllTION 19" in the above-captioned proceeding have-been serv 6d on the following by.
deposit in the United States. mail, first class or as indicated by an. asterisk by deposit :in the Nuclear. Regulatory Comission internal mail. system, this 7th. day of. April,- 1981:
f.ouis J. Carter Ralph Shapiro, Esq.
- dninict.aiive Judge Crr.ar and Shapiro 23 Wiltshire Road tio. 9 East 40th Street rhilaJalphia, PA 19151
!?cu York, fiY '
10016 Dr. Oscar 11. Paris, !! caber
- ibward L. Blau, Esq.
Atomic Safety and Licensing roard 217 ':ct: bridge Road Lt.S. !!uclear Regulatory Camission Hicksville, NY 11301 L shin; ten, DC 20555 N. Taylor Reveley III, Esq.
Mr. Frederick J. Shon, !!ccibar*
- '/at:n & Uilliaus
'doaic Safaty and Licensing So?.ed P.O. Fox 1535 II.S. i:ocicar Regulatory Cc-uission R;ch :and, VA 23212
" sMagton, DC 20$55 Il<ard it. Barrett, Erg.
Deputy Cor.aissionar and Co:nsel
':eneral Co::nsel thu York State Energy Gifice Lang Island Lighting Company A:ency Building 2 260 Old C0anty Road E pica State Pina
- incola, NY 11501 ll.ba;y, NY 12223 i
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"?.ard J. 1?alsh, Esq.
IrvirJ Like, Esq.
Leng Island Lighting Company billy, Like an.1 Schneidar
?50 Old Coanty-Road 230 ' :st "lin S* met l*ir. cola, NY 11501 hby'cn,fiY 11/02
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'le : c ra n's lk. acrial :lig'c.iay I ipica St.;*e Plaza M :p, ugo, liY 11738
?.1 b a r.y, ;iY 12223 Ez,a I. iiialik, Esq.
P vid H. Gil.11rtin, Esq.
.ssis' ant Attcency Snaral "o f D1 k C.:.n ty At :.orney Gen. cal Ee. i ran.iental Protactico '..cr.a r a.;y Ew. u tive/Legisla tive 31dg.
I: M York State Depart., cat of L W t o r..n 's :' 2arial Hightcay 2 '.'arld Trade C2nter y,'c o y, NY 11788 i' a ','ork, NY 10047
'te'ic ctTety and Licensing Atonic Safety and Licensing "c;rd ?..aei*
'npaal 30ard*
ll.S. *:acicar regulatory Co i_sion U.S. ' uclear Djulatory Co 4ission
'cshingtan, DC 20555 1'a s h i 19 on, DC 20555 t
'ac' at ing rid Service Sec t lan*
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Bernard M. Bordenick l
Counsel for NRC Staff