ML19347F076
| ML19347F076 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/14/1981 |
| From: | Ellen Brown NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8105150209 | |
| Download: ML19347F076 (11) | |
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v, UNITED STATES OF Af1 ERICA NUCLEAR REGULATORY C0f1!!!SSION B_EFORE THE AT0t11C SAFETY AND LICENSING BOARD In the Itatter of
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CONSUL 1ERS POWER C0!!PANY Docket Nos. 50-329-Of t & OL
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50-330-Of1 & OL (11idland Plant, Units 1 and 2)
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NRC STAFF MOTION TO CLARIFY THE DISCUSSION OF T!!I-RELATED g
4/4p13 CONTENTIONS AT THE APRIL 27, 1981 PREHEARING CONFERENCE 4
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INTRODUCTION g
$TJA6 On April 27, 1981, the Atomic Safety and Licensing Board (hereinafter Licensing Board) held a prehearing conference for the tiidland OM-OL pro-ceeding.
Near the end of the prehearing conference a discussion occurred between Chairman Bechhoefer and Intervenor Mary Sinclair concerning the possibility of filing Ti1I-related contentions in the OL proceeding.1 In view of the Commission's revised Statenent of Policy on the imple-nentation of Tit!-related requirements into the licensing process and the scaewhat confusing discussion of this subject at the prehearing conference, the Staff hereby files a motion in an effort to clarify the matter.
1/
See attached pages 956-960 from the transcript of the April 27, 1981, prehearing conference.
-2/
Statement of Policy: Further Coonission Guidance For Power Reactor Operating Licenses, CLI-80-42,12 NRC 654 (1980).
G105150 #
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DISCUSSION Mary Sinclair is participating in the OM-OL proceeding due to her status as an Intervenor in the OL proceeding.3/ She was admitted as an Intervenor in the OL proceeding on August 14, 1978.
Certain of her contentions were accepted by the Licensing Board pursuant to a special prehearing conference order dated February 23, 1979.
At the recent prehearing conference for the OM-OL proceeding, Ms. Sinclair asked the Licensing Board whether and how TMI-related issues would be addressed in the OL proceeding. Her apparent concern was that she might be estopped from raising TMI-related contentions since the Licensing Board had issued a ruling on Intervenors' contentions in February 1979.
Chairman Bechhoefer responded that TMI-related conten-tions could be filed after the Staff's issuance of the SER.4/
Judge Decker elaborating on that point stated:
A party, as I understand it, can always come in and request acceptance of a new contention, if it's based on new information that was not available before and is sub-stantive.
Whether it's accepted or not is something else, but that's always possible grounds.
What the chairman has told you is that the Staff's safety evaluation report will be one such piece of new info upon which you might justify additional contentions.pfation 3/
By Order dated October 24, 1980, the Licensing Board consolidated the OM proceeding with those issues relating to soil conditions and plant fill materials raised in the OL proceeding.
As part of this consoli-dation, the Licensing Board stated that all OL parties and participants will be accorded the right to participate in the OM proceeding.
4/
Prehearing Conference transcript p. 957-8.
5_/
Prehearing Conferen;e transcript p. 960.
While the Staff does not categorically disagree with the Licensing Board's response to Ms. Sinclair's question regarding Till-related contentions, it submits that certain clarifications are in order.
Fi rs t,
with respect to TF11-related contentions, the Commission has stated the following:
"...where the time for filing contentions has expired in a given case, no new TMI-related contentions should be accepted absent a showing of good cause and balancing the factors in 10 CFR 62.714(a)(1).
The Commission expects adherence to its regulations in this regard."O The cited regulation provides that to have a late filed contention admitted, the following factors must be considered and balanced:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(fy)
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.
10 C.F.R. Q 2.714(a)(1).
Thus, should fis. Sinclair or any other previously admitted OL Inter-venor want to file THI-related contentions, she must do so in accordance with section 2,714(a)(1) by demonstrating good cause for the late filing and by addressing the other four considerations.
6f Statement of Policy:
Further Commission Guidance for Power Reactor Operating Licenses CLI-80-42, 12 NRC 654, 661 (1980).
See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5 (April 1, 1981).
\\ s Second, the Licensing Board indicated that the SER when issued might constitute new infonnation on which TMI-related contentions could be filed.
The Staff submits that the relevant documents on which TMI-related conten-tions could be filed are currently in the public domain.
Specifically, the Midland FSAR and amendments thereto and NUREG-0737 " Clarification of TMI Action Plan Requirements" are available in tN LPDR in Midland, Michigan.
If a study of these documents raises TMI-related issues, Intervenors should promptly file new contentions.
Should an Intervenor wait until the SER is issued (estimated issuance date summer 1982) to file new contentions on the basis of the "TMI Action Plan Requirements" (published November 1980), the Staff submits that an Intervenor probably could not demonstrate good cause for the late filing.
In fact, the Staff questions whether good cause could be demonstrated should an Intervenor file a TMI-related contention tomorrow.
In sum, the information reievant to formulating TMI-related contentions is currently available to Intervenors and should they believe they can demon-strate good cause for late-filing of TMI-related contentions, they should do so promptly and not await issuance of the SER.
CONCLUSION Based on the foregoing, the Staff respectfully requests that the Licensing Board clarify its comments regarding TMI-related contentions.
Respe.tfully submitted, SL //. &_
Ellen M. Brown Counsel for NRC Staff Dated at Bethesda, Maryland this 14th day of May,1981
.I Pr: hearing conference transcript cf April 27, 1981 a ttachment.
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or the modification order.
956 2
MR1 M'ARSHALL:
Okay.
3 JUDGE BECHHOEFER:
And that's the only subject we're
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4 going to be hearing in this early stage of the proceeding.
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Other aspects of the operating license will be heard C
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6 at a later date including your contentions, so that your non-e".
I' soil-related contentions, and I believe you have quite a few --
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8 MISS SINCLAIR:
Well, c.ctually, I wanted to address tJi 9
that today.
You initiated or posted a notice for the operating b
10 license very early, much befo.e, you know, a lot of this informa-
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11 tion on Three Mile Island was even available.
Since these are t
Y 12 Babcock and Wilcox reactors and there's a whole host of problems j
13 that haven't been identified since Three Mile Island which we were l
14 not able to address when we sent in our content!.ons for, you b
15 know, setting up the operating license, it seems to me that the j 16 operating license procedure would be meaningless unless we have s
17 very careful review of all the information that's now available 18 to us that was not available then as far as safety aspects of I9 the Babcock and Wilcox reactors.
20 We know now that they are much more sensitive than other 2I l
types of reactors.
We know that there are problems with'their 22 cooling systems that are unique, and it seems to me there's a 23 whole host of safety issues that now have been identified that 24 we were blocked out of even discussing them when you first posted 5 the notice on the, operating license hearing.
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ALDERSON REPORTING COMPANY. INC.
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I think the operating license hearing without a review s
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2 of all of those issues that we now understand about these i
3 reactors would be a meaningless process, and I want to know what 4
the NRC plans to do in this particular case.
5 JUDGE BECHHOEFER:
Well, it's my understanding that e
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6 some people came in shortly af ter Three Mile Island or at least o
7 shortly af ter the commission established some new standards and X
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requested certain contentions based on those new standards.
The a
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normal way of proceeding now is to, I think, wait until the i
h 10 staff, and the staff can confirm this, but I believe that the
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j 11 staff's safety evaluation or some aspect of it will cover 3
e 12 conformance of a reactor to the new standard.
This has occurred 5!
13 in most cases that I'm aware of.
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14 MISS SINCLAIR:
I know, but we don't have the opportanity 2
15 to --
E j 16 JUDGE BECHHOEFER:
You'll get that.
As a party, you'll w
6 17 get a copy of that, and if there's any way in which you think the 5
k 18 proposal, the application, does not conform to the commission's E
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n w standards which are already out, obtainable, and you can get n
20 those,.if you think they don't conform to the standards, you can 21 raise that as a contention.
We allow some time after that comas 22 in to do that.
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, 23,
MR. MILLER:
Mr. Chairman --
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24 MISS SINCLAIR:
Are you saying we're permitted conten-b 25 Jtions that we were not allcwed to or that were ruled out a
ALDERSON REPORTING COMPANY,INC.
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previously?
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JUDGE BECHHOEFER:
Well, the basis of new information 3
would be the basis of the plans for conforming to the new Three 4
Mile Island requirements.
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MISS SINCLAIR:
But there's nothing in be structure bj 6
that I see that allows us to, say, litigate or question the ag 7
evaluation of the staff, and certainly that needs questioning.
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8 JUDGE BECHHOEFER:
Well, you'll have to see it to c.io 9
determine whether it does or not.
You haven't gotten it yet.
10 The staff hasn't done it yet.
I'm sure we'll be -- Mr. Paton, E
3 11 you can perhaps confirm -- I don't know whether it's a separate g
12 document, but I assume that TMI standards will be included in the 5
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13 safety evaluation?
l 14 MR. PATON:
Yes, sir, and I was trying to get just an a
g 15 approximate issuance date for the SER in Midland, if I could just a
g' 16 have a minute.
We estimate issuance of the SER for !% Midland l
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17 OL in the summer of 1982.
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18 JUDGE BECHHOEFER:
So, when that comes out, then you E
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can compare that to what the commission's standards are which it n
20 has adopted as a result of Three Mile Island, and if you think
- 21 it doesn't conform, you can raise those issues.
22 MISS SINCLAIR:
I auess my point was that the contentions-23 that I have been allowed don't incluce that, unless you're going 24 to allow them to be heard on the quality assurance issue in the 25, operating license.
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ALDERSON REPORTING COMPANY. INC.
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e JUDGE BECHHOEFER:
No.
What I'm saying is that the 95E i
2 normal procr. dure is that if you find you can submit on the basis 3
of the staff's review that certain standards are not being i
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adhered to, certainly the TMI standards.
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'y MISS SINCLAIR:
Then you can bring them up at that l
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point, even though --
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7 JUDGE BECHHOEFER:
Right, but you can't do it generic-A!
8 ally.
You have to say that -- you have to show why, whatever d
I the applicant has proposed isn't satisfactory, if that affects 10 the case.
You would have to look over the safety evaluation and E
II say either the staff's wrong or simply the staff goes along with it I
what the applicant proposes.
That's not always the case, but o
( f13 assuming that were the case, to raise an issue you would have to l
14 show how it didn't conform.
15 MISS SINCLAIR:
Yes, I understand.
I guess my question f16 was that since that was not a contention that I was allowed in h
I7 entering the operating license hearing, whether you can add that 18 as a contention?
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JUDGE BECHHOEFER:
Well, it's certainly new information 0
p because Three Mile Island had not occurred yet, ha'd it?
l MISS SINCLAIR:
No.
JUDGE BECHHOEFER:
I didn't think so.
23 MISS SINCLAIR:
No, it hadn't, and that's why I say
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there are a whole host of --
25 JUDGE BECHHOEFER:
In most cases people came along 4
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j ALDERSON REPORTING COMPANY. INC.
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earlier, so I think that just as a matter of timing, to raise 960 some of these general issues, people have had to come in already.
2 But you can look at the safety evaluation and determine 3
i whether you think that the standards are satisfied or not.
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JUDGE DECKER:
I think that perhaps the question still A
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hasn't been answered.
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R A Party, as I understand it, can always come in and 2_
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request acceptance of a new contention, if it's based on new a
d information that was not available before and is substantive.
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10 Whether it's accepted or not is something else, but z
11 that's always a possible grounds.
t What the chairman has told you is that the staff's y
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safety evaluation report will be one such piece of new information c
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14 upon which you might justify additional contentions.
2 15 MISS SINCLAIR:
I see.
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JUDGE BECHHOEFER:
Yes, that's correct.
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6 17 JUDGE DECKER:
I didn't think it was getting through.
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MISS SINCLAIR:
I thought th'at once they determined f f 18 E
what issues you could address that that was a fixed thing, and 19 g
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i 20 I appreciate the clarification.
e 21 JUDGE BECHHOEFER:
No, they take new information as It doesn't say that 22 the grounds for excusing lateness anyway.
i 23 the information qualifies for an issue.
i 24 MISS SINCLAIR:
I have a second question.
When the
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25 operating license was noticed in the federal register, which was I
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ALDERSON REPORTING COMPANY. INC.
UN1'ar.0 SiAlES OF A:7.hiCA
!!UCLEh!! 1:1.CULATORY CW. '.M s10N CLf0RE Tilt AT0'11C SAFETY t.:3 f.! eel:Sigi,00j110, 1
la the 11atter of I a;;5G*Tl!S POER Cu:iPANY Dochet Hos. 50-329-0?! & OL 50-330-si & OL
(".idland Plant, Units 1 and 2)
)
CERTIFICATE OF SERVICE I certify that copies of NRC STAFF MOTION TO CLARIFY THE DISCUSSION OF TMI-RELATED CONTENTIONS AT THE APRIL 27, 1981, PREHEARING CONFERENCE 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 Coninission's internal mail system, this 14th day of tiay,1981.
- Charles Bechhoefer, Esq.
I*s. Mary Sinclair Atomic Safety and Licensing Board 5711 Sumerset Street U. S. Maclear Regulatery Conaission Midland, Michigan 4S640 1ashington, D.C.
20555 Philip P. Steptoe, Esq.
Administrative Judge Ralph S. Decker
- ichael I. Miller, Esq.
Route f4, Box 1900 Ronald G. Zamarin, Esq.
Cambridge, MD 21613 Alan S. Farnell, Esq.
Isham, Lincoln & Beale One First National Plaza Dr. Frederick P. Cowan 42nd Floor 6152 N. Verde Trail Chicago, Illinois 60603 Apt. B-125 Boca Raton, Florida 33433
- Atomic Safety and Licensing Board Panel Trank J. Kelley U. S. Nuclear Regulatory Cor. mission Attorney General of the State 1:ashington, D.C.
20555 of Michigan Steward H. Freeman
- Atomic Safety and Licensing Assistant Attorney General Appeal Board Panel Gregory T. Taylor U. S. Nuclear Regulatory Conaission Assistant Attorney General tushington, D.C.
20555 Environnental Protection Division 720 Law Buildino
- Docketina and Service Section Lansing, Michigan 4S913 Office of the Secretary U. S. Nuclear Regulatory Cor;nission
)
- 'yron M. Cherry, Esq.
1lashington, D.C.
20555 1 lDM Plaza Chicago, Illinois 60611 P00ROR819
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?:u.:.is E. Crunner, Esq. ~
Je un Linsley Ceneucers Power Co..?pany Bay City Titaes 2121lest liichigan Avenue 311 Fifth Street J.icks.on, Michigan 49201 Cay City, Ilichigan 48706 i
Mr.. fiarbara Stamiris bi95 N. River Freeland,liichigan 4S623 Mr. Steve Gadler t
2120 Carter Avenue St. Paul,I;innesota 55108 1.Yn.lell H. Marshall, Vice President liiihtest Environmental Protection Associates RfD 10 4
i:idland,liichigan 48640 J...;cs R. 1:a tes 2r3 S. Washington Avenue Saginaw, Michigan 48605 t
Ellen M. Brown Counsel for NRC Staff P00R BR8%i