ML20006C490
| ML20006C490 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/30/1990 |
| From: | Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#190-9765 LBP-89-28, OL-1, NUDOCS 9002080113 | |
| Download: ML20006C490 (47) | |
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'90 JAN 30 All 32 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION e n irr 3r tcgriA;w f P ' ', !1 '
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket Nos. 50-443-OL-1 PUBLIC SERVICE COMPANY OF 50-444-OL-1 NEW HAMPSHIRE, et d.
(Seabrook Station Units 1 and 2)
NRC STAFF'S BRIEF IN OPPOSITION TO INTERVENORS' APPEAL OF LBP-89-28 i
Richard G. Bachmann Counsel for NRC Staff January 30, 1990
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BRANCH-In the Matter of
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Docket Nos. 50-443-OL-1 PUBLIC SERVICE-COMPANY ~OF 50-444-OL-1 NEWHAMPSHIRE, eta _1 (Seabrook Station, Units 1 and 2) l l
l NRC STAFF'S BRIEF IN OPPOSITION TO
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INTERVENORS' APPEAL OF-LBP-89-28 j
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Richard G. Bachmann l
Counsel for NRC' Staff January 30, 1990 i
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TABLE OF CONTENTS l
PAGE TAB L E OF AUTHOR I TI ES............................................. 111 t
STATEMENT OF THE CASE............................................
1-Introduction............................................... 1 Background..................................................
2 STAT EM E NT O F I S SU E S.............................................. 3 ARGUMENT.........................................................
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i I.
The Licensing Board Correctly Ruled That Low Dower Testing is Not Material to Full Power i
Licensing as Defined in UC5................................. 4
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II. The Licensing Board Correctly Determined That the Standards for Reopening the Record Were Applicable to Issues Arising From Low Power Te s t i n g..................................................... 8 i
A.
The Licensing Board Was Not Prohibited From Applying the Reopening the Record Standards to Low Power Testing Issues.................. 8 B.
The Licensing Board Was Obligated to-Close the Evidentiary Record on June 30, 1989.......................................... 15 III. The Licensing Board Correctly Found That Intervenors' Low Powar Testing Contentions Did Not Meet the Reopen the Record Standards o f 10 C. F. R. 6 2. 7 3 4........................................ 19 r
A.
Standards for Reopening the Record.....................
19 B.
Application of the Criteria of 10 C. F. R. 6 2. 734 ( a )................................... 23 4
1.
Timeliness........................................
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2.
Safety Significance............................... 24 3.
Materially Different Result.......................
28 4.
Intervenors' Arguments............................
29 5.
Summary...........................................
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IV. The Licensing Board Correctly Applied the Fundamental Flaw Standard...................................
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The Licensing Board Correctly' Rejected the '
i Remainder of Intervenors' Contentions and Ba505.......................................................33.
CONCLUSION....................................................... 36 r
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TABLE OF AUTHORITIES I
COURT CASES Bowman Transportation v. Arkansas-Best Freight, 419 U. S. 281 ( 19 7 4 ).............................................. 13 Chemical Waste Management Inc'. v. EPA, 873 F. 2d 1477 ( D. C. Ci r. 1989).................................... 11 Commonwealth of Massachusetts v. NRC, 878 F. 2d 1516 ( 1 s t Ci r. 1989 ).................................... 6.10 -
I CC v. Je rsey Ci ty, 322 U.S. 503 (1944 ).......................... 12,14,20 Mobil Oil Corp. v. ICC, 685 F.2d 624 (D.C.Cir. 1982)..................................................
14.
Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C.Cir.1986)..................................................14 San Luis Obispo Mothers for Peace v. NRC, 789 F.2d (D.C.Cir. 1986)..........................................
passim San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C.Cir 1984)...................................... passim l
Three Mile Island Alert, Inc. v. NRC, 7 71 F. 2 d 7 20 ( 19 8 5 ).............................................. 13 Union of Concerned Scientists v. NRC, 1
735 F.2d 1347 (D.C.Cir.
1984)..................................... passim i
ADMINISTRATIVE DECISIONS Carolina Light and Power Co. (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532 (1986)........................
17 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),.LBP-83-74, 18 NRC 1241 (1983)...................................'...................
18 Commonwealth Edison Co. (Zion Station, Units 1 & 2),
ALAB-226, 8 AEC 381 (1974).......................................
33 Consolidated Edison Co. (Indian Point Units 1, 2, a nd 3 ), ALAB-319, 3 NRC 188 ( 1976)............................... 17 Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC 1285 (1984)..........................
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Duke Power Co. (Catawba Nuclear Station Units 1and2),CLI-83-19,17NRC1041fl985)....................35 Duke Power Co. (Catawba Nuclear Station, i
Units 1and2),ALAB-825,22NRC785(1985)......................17 s
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC.619 (1976).......................
29 Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320 (1978).....................
29 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-89-1,.29 NRC 89 (1989)..................... 14,22 Long Island Lighting Co..(Shnreham Nuclear Power Station, Unit 1), CLI-88-3, 28 NRC.1 (1988)...................... 30 I
l Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),~CLI-87-5, 25 NRC 884 (1987)....................
30 t
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),CLI-86-11,23NRC577(1986)...................32 Long Island Lighting Co. (Shoreham Nuclear Power l
Station, Unit 1) ALAB-903, 28 NRC'499-(1988).................... 31,32 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),LBP-85-12,21NRC644(1985)...................15:
i Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1 (1986)............. 34 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 19NRC1361(1984)...............................................22,30 l
Pccific Gas & Electric Co. (Diablo Canyon I
Nuclear Power Plant, Units 1 & 2), ALAB-756, 16NRC1340(1983)...............................................35 Philadelphia Electric Co. (Limerick Generatin Station, Units 1 & 2), ALAB-P1A, 23 NRC 263 (g1986)........,...... 24 i
PublicServicesCo.ofIndiana(MarbleHill i
Generating (Station, Units 1and2),ALAB-316, 3 NRC 167 1976).................................................
17 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473 (1989)...........................................................
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Public Service Co. of New Hampshire (Seabrook
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Statice. Unitt. I and 2), ALAB-916, 29 NRC 434 l
(1989)........................................................... 17 Public Service Co. of New Hampshire (Seabrook l
l Station, Units 1 and 2), ALAB-915, 29 NRC 427 (1989)...........................................................33,35 Public Service Co. of New Hampshire (Seabrook Station, Units 1 end 2), ALAB-910, 29 NRC 95 (1989)...........................................................17 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-38, 30 NRC (Slip Op. December 11, 1989)............... C................... 18 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-28, 30 NRC (SlipOp. October 12, 1989)................ C.................... passim Tennessee Valley Authority (Hartsville Nuclear l
Plant, Units IA, 2A, IB & 28), ALAB-463, 7 N R C 3 41 ( 19 7 8 )................................................ 21 Texas Utilities Electric Co.'(Comanche Peak l
Steam Electric Station, Units 1 & 2), LBP-84-10, 19 NR C 5 09 ( 19 84 )................................................ 18 Union Electric Co. (Callaway Phnt, Unit 1),
ALAB-740, 18 NRC 343 ( 1983 )..................................... 32,3 5 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, i
3 0 N R C 2 9 ( 19 8 9 )................................................. 3 3, 3 4 Vermont Yankee Nuclear Power Corp. (Vermont YankeeNuclearPowerStation),ALAB-138, l
6 AE C 5 20 ( 19 73 )................................................. 15,23,28,2 9 Wisconsin Electric Power Co. (Point Beach NuclearPlant, Unit 1),ALAB-696,16NRC1245(1982).............18 STATUTES
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AtomicEnergyAct,Section189(a),42U.S.C.52239(a)............ passim Atomic Energy Act, Section 182, 42 U.S.C. I 2232................. 6 4
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REGULATIONS t
10 C.F.R. I 2.714................................................ 20.32 10 C. F. R. I 2. 714 ( a ) ( 1 )......................................... 2 3 f
10 C. F. R. I 2. 714 ( b )............................................ 22 f
10 C. F. R. I 2. 73 4................................................. pa s s i m i
10 C. F. R. I 2. 7 6 2 ( c )........................................... 2 l
10 C.F.R. I 50.47................................................
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i 10C.F.R.I50.47(a)(2).........................................5 i
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l MISCELLANEOUS i
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" Criteria for Reopening Records in Formal Licensing Proceedings," Final Rule, 51 Fed. Reg.19535 l
(May30,1986).................................................... passim
" Emergency Planning and Preparedness," Final Rule, 47 Fed. Reg. 30232 (July 13, 1982)...............................
5
" Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process," Final Rule, 54 Fed. Reg. 33168 (August 11, 1989)................................................
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" Statement of Policy on Conduct of t fcensing Proceedings," CLI-81-8, 13 NRC 452 (1981)........................
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of i
Docket Nos. 50-443-OL-1 PUBLIC SERVICE COMPANY OF 50-444-OL-1
'NEW HAMPSHIPF, et al.
(Seabrook Station, Units 1 and ?)
NRC STAFF'S BRIEF IN OPPOSITION TO INTERVENORS' APPEAL OF LBP-89-28 STATEMENT OF THE CASE Introduction This is in response to an appeal by three intervenors from a Memorandum and Order, LBP-89-28, issued by the Atomic Safety and Licensing Board on October 12,1989 (hereafter referred to as LBP-89-28 with citations to the slipopinion).1/ In LBP-89-28, the Licensing Board denied Intervenors' i
motions to admit contentions and additional bases, or to reopen the record I
and requests for a hearing, regarding events that occurred during low power testing at Seabrook.
A brief on appeal was filed on December 19, 1989 by Intervenors Massachusetts Attorney General, Seacoast Anti-Pollution League and New England Coalition on Nuclear Pollution (hereafter cited'as Int. Brief). A l
brief in response to Intervenors' appeal was filed by the Applicants on i
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Memorandum and Order (Denying Intervenors' Motions to Admit Low Power Testing Contentions and Bases or to Reopen the Record, and Requests j
forHearing),LBP-89-28,30 NRC _ (Slip opinion, October 12,1989).
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January 19,1990(hereafterApp.Brief).
Pursuant to 10 C.F.R. I 2.762(c),
j the NRC Staff hereby files its brief in opposition to the Intervanors' brief on appeal.
For the reasons set forth herein, the Staff submits that the Licensing Board correctly resolved all of the issues raised on appeal, and that LBP-89-28 should be affirmed, f
Background
On June 22, 1989, the Seabrook Statfor. was shut down by Applicants i
after an event occurring in connection with the performance of a natural i
circulation startup test. The details of that event, a failure to manually trip the reactor when the pressurizer water level fell below 17 percent, and the chronology of that day and the following day are set out in LBP-89-28 at 1-2 and 28-32 2/,
As a result of the event, numerous pleadings were filed by the parties, and are listed by the Licensing Board in LBP-89-28 at 2-3 n.1.
The two motions filed by Intervenors, whose denial by the Licensing Board led to the instant appeal, were Intervenors' Motion to Admit Contention, Or, In the Alternative, to Reopen the Record, And Request for Hearing, July 21, 1989 I
(" Int. Motion") and Intervenors' Motion for leave to Add Bases to Low Power Testing Contention Filed on July 91, 1989, and to Admit Further Contentions Arising from Low Power Testing Events Or, In the Alternative, to Reopen the Record and Second Request for Hearing, August 28, 1989 (" Int. Second Motion").
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The Licensing Board noted that the Intervenors do not dispute Applicants' basic account of the June 22 event. LBP-89-28 at 28.
Applicants' account, from which the Licensing Board excerpted its (Footnote continued on next page) ne w
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I As noted by the Licensing Board, the first motion contained one contention (JI-LP-1) which alleged that "the June 22 event demonstrates that Applicants' plant operators and management are not adequately trained or qualified, arf that they lack adequate managerial and administrative controls to operate the facility at any level of power." LBP-89-28 at 2-3.
Thesecondmotionaddedtwomorecontentions(JI-LP-2andJI-LP-3)and bases, along with additional bases for the first contention. Jd at 3; Int.
I Brief at 8-9.
In LBP-89-28, the Licensing Board denied Intervenors' two. motions, l
finding that Intervenors had not met the standards for reopening the record in their first motion, and that the second motion had fatal pleading i
defects.
STATEMEtJT OF ISSUES Intervenors have raised the following issues on appeal:
1.
Whether the Licensing Board erred in finding that low power testing was not " material" to the issuance of a full power license.
I 2.
Whether the Licensing Board erred in applying the standards for reopening the record of 10 C.F.R. I 2.734 to low power testing issues, thus unlawfully burdening Intervenors' statutory hearing rights under Section 189(a) of the Atomic Energy Act.
(Footnote continued from previous page) chronology, is contained in Applicants' Answer to Intervenors' Motion to Admit Contention, Or, in the Alternative, to Reopen the Record, and Request for Hearing (August 7, 1989).
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Whether the Licensing Board erred, if the reopening the record f
standards do apply to low power testing issues, in finding that Intervenors' contentions and bases did not meet those standards.
4 Whether the Licensing Board erred in applying the " fundamental f
flaw" standard to Intervenors' contentions.
5.
Whether the Licensing Board erred in rejecting Intervenors' contentions and bases for other reasons.
These issues, together with their included subissues, are addressed seriatim in the discussion below.
j ARGUMENT l
The Licensing Board Correctly Ruled That Low Power Testing is Not Material to Full Power Licensing as Defined in UCS.
In LBP-89-28. the Licensing Board ruled that satisfactory completion of low power testing is not a prerequisite to full power testing under the i
decision of the D.C. Circuit Court of Appeals in Union of Concerned Scientists v. NRC, 735 F.2d 1347 (D.C. Cir. 1984) (hereafter UCS).
LBP-89-28 at 15-16.
Intervenors argue that low power testing is indeed
" material" to full power licensing under M and that by rejecting their low power testing contentions the Licensing Board violated their hearing rights under Section 189(a) of the Atomic Energy Act.
Int. Brief at 10.
Intervenors also base their first argument to a lesser extent on San Luis O_bispo Mothers for Peace v. NRC, 751 F.2d 1207 (D.C. Cir. 1984).
Intervenors maintain that the " materiality of low power testing to licensing is manifest" (Int. Brief at 10) for the following reasons:
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a.
Since Applicants have elected to conduct testing under their low power license, they must successfully complete that testing prior to I
receiving a full power license (M. at 10-11);
b.
Since the Staff has " suspended" the low power license, the Staff has ma'e low pow.9r testing material to full power licensing (id.. at 12);
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c.
In its brief to the Court of Appeals in UCS, the Comission
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equated preoperational testing to emergency exercises and, since the Court has decided that the exercises are material, testing must also be so (,id. at 13-14);
d.
The Court in Mothers for Peace noted that a determination of 4
proper tre.tning and licensing of reactor operators is essential to making findings before issuing an operating license, and Intervenors have chcliengedoperatorcompetenceintheircontentions(M.at14).
i Intervenors' reliance on Ucs, for the premise that the aforementioned actions can make low power testing " material", thus guaranteeing them a Section189(a) hearing,ismisplaced, The UCS case involved a challenge to an amendment to a Comission regulation (10 C.F.R. 9 50.47(a)(2)) which effectively removed the results of emergency planning exercises from consideration in operating license
- hearings, 735 F.2d at 1440-41. M Petitioner Union of Concerned Scientists 3/
The specific wording challenged in UCS were:
Emergency preparedness exercises (required by paragraph (b)(14) of this section and Appendix E. Section F of this part) are part of the operational inspection process and are not required for any initial licensing decision.
4 47 Fed. Reg. 30232,30236(July 13,1982).
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contended that the amendment denied its statutory right to a hearing on a
" material issue in licensing proceedings" under Section 189(a)(1) of the
)
Atomic Energy Act, 42 U.S.C. $ 2239(a)(1). Ld.at1438.
J The Court noted that Section 182 of the Act (42 U.S.C. I 2232) provided that an applicant for a license shall state " technical specifications...as the Commission may, by rule or regulation, deem necessary" to make the j
finding of " adequate protection to the health and safety of the public."
Id. The Court also noted that the Comission's emergency preparedness rule, l
10 C.F.R. i 50.47, " expressly conditions licensing of plants" on l
satisfaction of specific standards, among them the requirement for a prelicense emergency exercise, and that any deficiencies identified by the exercise must be corrected before licensing. M.at1440. As a result, the Court found:
Since the NRC, by its own regulations, has made correction of deficiencies identified in emergency exercises a requ'irement of its ultimate licensing decision, it would seem to follow that results of these exercises must be subject to the section 189(a) hearing requirement.
l Id. at 1442.
By promulgating the amendment at issue, "the Commission has removed from the licensing hearing consideration of evidence that it considers I
relevant to a m1terial issue in the section 189(a) proceeding as it' has defined that issue." (emphasis in original) Ld.at1443.4/
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Hearing rights only attach to those actions specifically listed in section 189(a) of the Atomic Energy Act.
Commonwealth of Masschusetts
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Therefore, the Court detennined that the amendment was invalid because it denied statutorily prescribed hearing rights.
Id_. at 1441-42. However, while invalidating the amendment, the basis for the Court's ruling was very narrow, going only to issues the Comission regarded as " material." El This is clearly demonstrated in a case not cited by the Intervenors.
Subsequent to the decision in the Mothers for Peace case (hereafter
[
Mothers for Peace I) which was cited by Intervenors, the Court of Appeals l
vacated and granted a rehearing on a portion of the decision (sect. III.B).
760 F.2d 1320. On rehearing, en banc, in San Luis Obispo i
Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) (hereafter MothersforPeaceII),theCourtstated:
Union of Concerned Scientists holds only that the Comission cannot exclude from a section 189(a) hearing. issues that its rules or regulations require it to consider in its licensing decisions.
789 F.2d at 30.
The Court went on to state that "to establish, on the rationale of Union of Concerned Scientists, that the Comission impermissibly refused a hearing, petitioners must show that NRC rules or regulations required the Comission to consider [the issues sought to be raised) in deciding whether tolicense[theplant)." Ld.
None of the actions cited by Intervenors show that any NRC rules or regulations require the Comission to consider the results of low power testing before issuing a full power license. Neither actions by the Applicants (in conducting the low power tests), nor by the Staff (in issuing 5/
The Court also explained that the Comission could limit the scope of.
1 a hearing mandated by Section 189(a).
See UCS at 1447-49.
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a confirmatory action letter), nor by counsel for the Connission (in equating preoperational testing to emergency exercises) can create a rule or s
regulation as contemplated in UCS. The issue of operator competency, while in certain instances, which will be discussed infra, could be considered material to licensing, is here an attempt to bootstrap low power testing into the regulations.
It does not mean that low power testing per n must be considered a material issue as defined in UCS. As stated by the Court in Mothers for Peace II, on rehearino:
"If the Atomic Energy Act and the... regulation do not require such consideration, then petitioners may not ask this court to rewrite the statute and regulation to deal with their concerns." 789 F.2d at 37.
No error was committed by the Licensing Board in ruling that low power testing was not material to full power licensing based on the decision in UCS.
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!!. The Licensing Board Correctly Determined That the Standards for Reopening the Record Were Applicable to Issues Arising From Low Power Testing.
i A. The Licensing Board Was Not Prohibited From Applying the Reopening the Record Standards to Low Power Testing Issues.
Since, as discussed above, the Licensing Board properly rejecad Intervenors' argument that the decision in UCS entitled them to a hearing on i
i Iow power testing under Section 189(a) of the Atomic Energy Act.
Intervenors' second argument, that their hearing rights were impermissibly burdened by the application of tha standards for reopening the record, is j
largely academic.
See Int. Brief at 15 (Intervenors premise their second j
argument on the materiality of low power testing based on UCS). However, Intervenors proceed to cite (and quote) the Mothers for Peace I decision for the premise that the Court,nf Appeals " expressly prohibited" the application i
I of the reopening the record standards to their contentions.
I_d. at 15-16.
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i Intervenors assert that the statements made by the Court demonstrate that i
"the material issue standard of UCS, not the heightened evidentiary burden imposed by the reopen standard, is the appropriate test for admissibility of i
Intervenors' low-power testing contentions." I_d.
Intervenors are simply wrong. When viewed in context, the cited portions of Mothers for Peace I f
are inapposite to Intervenors' assertion, and the selective use of the quotes is at best misleading.
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The quotations provided by Intervenors (Int. Brief at 15-16) were not uttered by the Court in the context of deciding that a " material issue" entitles one to a hearing under Section 189(a) without application of the reopening the record standards. (Jn the contrary, before even alluding to the " material issue" standard, the Court had already decided that the i
petitioners should have been afforded an opportunity for a hearing on a license amendment application under Section 189(a).
The Commission had granted two extensions to the Diablo Canyon low s
power license. Mothers For Peace I, 751 F.2d at 1314-15. The Court held that such extensions constituted license amendments, and license amendments "are among those agency actions for which a hearing is explicitly guaranteed by s*ction 189(a)." (emphasis in original) $/ id.at1314. Only after l
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Section189(a)provides:
In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or i
application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any procuading for the payment of compensation, an award or royalties under sections'2183, 2187, 2236(c) or 2238 of this title, the Commission shall grant a hearing (Footnotecontinuedonnextpage) 4 deciding that the petitioners were entitled to a Section 189(a) hearing because of the license amendment, did the Court address the reopening the o
record standards, in the context of " determining whether petitioners received a legally sufficient hearing." I,,d. at 1315. The Court found that the Comission had applied those standards to the petitioners' construction quality assurance issues, and " subsequently concluded that petitioners had failed to satisfy its reopening criteria."
I,d. at 1316.
The sections of the Mothers for Peace I decision quoted by Intervenors actually reflect en added limitation on issues that may be litigated. The Court stated, " parties must show that a particular issue is ' material' in order to prevent its exclusion from a hearing under section 189(a); this much our decision in [ UCS) establishes." (emphasis in original) 751 F.2d at 1316. As discussed above in Section I, the Court in Mothers for Peace II held that "[ UCS) holds only that the Commission cannot exclude from a section 189(a) hearing issues that its rules or regulations require it to consider in its licensing decisions." 789 F.2d at 30.
Conversely, in a Section 189(a) hearing, the Comission m,3,y exclude from that hearing issues I
which NRC regulations do not require it to consider.
See also Commonwealth of Masschusetts, 878 F.2d at 1522 Thus, the portions of the Mothers for Peace I decision cited by Intervenors are inapposite to Intervenors' assertion that the Licensing (Footnote continued from previous page) i upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.
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_ _ _ _ Board was prohibited from applying the reopening the record standards to their low power contentions.
Intervenors are not in the posture of a person who has requested a hearing where a new " proceeding" has been initiated, based on a Commission action listed in Section 189(a), and has been denied a hearing because the issues sought to be raised did not meet the standards for reopening the record. Here the " proceeding" entailed the action of granting of a full power operating license for Seabrook.
Intervenors do not assert that they were denied a hearing on that particular Commission action.
During the course of the full power licensing hearing, none of Intervenors' contentions were tested against the standards for reopening the record.
Rather, their contentions were judged under the basis and specificity requirements of 10 C.F.R. 6 2.714. No " material" issues, as defined by UCS and Mothers for Peace II, were excluded by the Comission from the formal full power hearing. U It was only after the.'ecnrd of that statutorily mandated hearing was closed on June 30, 1989 that Intervenors attempted to reise specific issues concerning low power testing. Clearly, the Comission had taken no new 7/
A Section 189(a) hearing does not necessarily entail all the
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procedures of a formal-"on the record" hearing.
In UCS the Court had stated that "when a statute calls for a hearing in an adjudication the hearing is presumptively governed by 'on the record' procedures."
735 F.2d at 1444 n.12. The Court, speaking for the D.C. Circuit, subsequently rejected the presumption in Chemical Weste hanagement, Inc. v. EPA, 873 F.2d 1477 (D.C. Cir.1989E sfaung that they "will henceforth make no presumption that a statutory ' hearing' requirement does or does not compel the agency to undertake a fonnal ' hearing on the record,' thereby. leaving it to the agency, as an initial matter, to resolve the ambiguity." 873 F.2d at 1482.
In Mothers for Peace I, the Court referred to the reopened formal hearing, and remarked Ihat '.'the hearing they thereby received was more comprehensive and entailed greater procedural protections than would have been required under section 189(a)." 751 F.2d at 1316.
I
, " action" relativa to the Seabrook low power license to bring the hearing requirements of Section 189(a) into play, as in Mothers for Peace 1.
Additionally, at no time prior to the issuance of LBP-89-28 did Intervenors attempt to show where NRC rules or regulations require the Comission to consider the results of low power testing in reaching a full power licensing decision, and therefore " material" as defined in UCS and MothersforPeaceII.El NorhavetheydonesobeforethisAppealBoard.El The standards for reopeninn the record, applied by the Licensing Board, have been endorsed by the Courts and the Comission. The Commission noted in the Supplementary Information contained in the Federal Register Notice promulgating 10C.F.R.62.734(discussedatlength, infra),"[t]heSupreme Court has repeatedly said that reopening should not be automatic and is necessarily within the discretion of the agency." citing ICC v. Jersey City, g/
If a Commission regulation is consistent with the Atomic Energy Act, the Commission's interpretation of that regulation will be sustained by the tourtc unless it is arbitrary, capricious, or an abuse of d0scretion. Mothers for Peace II, 789 F.2d at 36.
9]
Intervenors have alleged that their issues which go to operator competency" concern a regulatory requirement and are therefore
" material.
Int. Brief at 14. As noted supra, this does not serve to make low power testing p'er se materia 1To Ticensing.. Moreover, Intervenors' argument would T6TI within the rulings of UCS and Mothers for Peace II on1v if the Commission had excluded the issue of operator competency from the 1? censing hearing. This is manifestly not the cose.
In LBP-89-28, the Licensing Board points out that a contention concerning operator qualification and training was
~
proffered by Intervenors and admitted into the proceeding, with summary disposition subsequently granted. LBP-89-28 at 8.
Thus the Licensing Board complied fully with the Court's directions in the cited cases.
Intervenors' later discovery of information, that they believe again calls into question operator competency, does not create a material issue for which a hearing must be granted.
. 322U.S.503,514-515(1944); accord, Bowman Transportation v. Arkansas-Best Freight, 419 U.S. 281, 294-295 (1974).
51 Fed. Reg, at 19539.
The Court in Mothers for Peace I found that the Commission had applied those standards to the petitioners' construction quality assurance issues, and "tubsequatly concluded that petitioners had failed to satisfy its reopening criteria." 751 F.2d at 1316. Although the Court had found that an opportunity to seek reopening of the record was not an adequate substitute for a Section 189(a) hearing, in the course of detennining what judicial relief would be appropriate, it analyzed the reopening standards and their application in Diablo Canyon, ld. The Court found:
Under Commission practice, reopening is required when new evidence is shown to be timely, safety significant, and suffic{gtly material to have changed the result initially taken.
A party moving to reopen must show that its new evidence is " strong enough, in the ligh}7gf any opposing filings, to avoid summary disposition."
Applying these criteria, we conclude that the Commission and its beards did not err in denying petitioners an opportunity to reopen the Dia'olo Canyon proceedings on issues of construction quality assurance.
174. See Kansas Gas & Elec. Co. (Wolf Creek Generating 5tation,UnitNo.1),ALAB-462,7NRC320,338(1978).
175. Vermont Yanket Nuclear power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973),
ld.at1318.
In Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720, 732 (1985), the Court cited Mothers for Peace I and held that the reopening test "has been judicially sanctioned." Thus, it is clear that where there has not been an action which triggers the hearing requirement of Section 189(a), and the record on a proceeding has been closed, the Commission (and its adjudicatory boards) has the authority to in! pose the burden 'of satisfying the reopening g
. the record standards of 10 C.F.R. $ 2.734 upon a person requesting a l
hearing.
Low power tests did not create a new proceeding requiring a separate hearingpursuanttoSection189(a)oftheAtomicEnergyActandthe Licensing Board properly applied the reopening the record standards to the low power testing contentions. N 10/ Intervenors advance the argument that those standards should only be applied "where a hearing has been held on all material issues raised by a requester.... where the record has been closed, and where a final decision has issued."
Int. Brief at 21.
In support of their argument. Intervenors cite Mothers for Peace I and Mobil Oil Corp.
- v. ICC, 685 F.2d 624 (D.C. U W. 1982).
Id. This case is inapposite.
The cited cases state the law as it app 1 Hs to the role of the federal courts when reviewing the denial of a motion to reopen by a federal agency, and not how the agency itself should deal with the motion. This is made clear in Oystershell Alliance v. NRC, 800 F.2d 1201 (D.C.Cir. 1986):
As this court noted in Mobil 011 two. v. ICC, 685 F.2d 624 (D.C.Cir.19821, our role in rev% wing denials of motions to reopen the record is a limited one.
"Where as here the agency has taken final action on a matter that is peculiarly within its realm of expertise, we will not require the agency to reopen its proceedings except upon a clear showing of abuse of discretion or of extraordinary circumstances." Id_. at 632.
Oystershell Alliance at 1707 The Court then went on to examine the Commission's denial of the petitioners' motion to reopen the record, " relying on the same court-sanctioned test applied by the Commission in reaching its decision."Id.(emphasisadded).
It appears obvious that if the reopening sHndards could not be applied until the Commission took final agency action, it would vitiate the entire purpose of the rule.
In NRC proceedings "there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening." ICC v. Jersey City, infra, cited in 51 Fed. Reg. 19535, 19539.
In the instant case the hearing record closed on June 22, 1989.
From that point forward, the reopening standards of 10 C.F.R. I 2.734 applied. See Long Island Lighting Co.
(Footnotecontinuedonnextpage) 4 u-__.__mm__-_.a-
l B. The Licensing Board Was Obligated to Close the Evidentiary Record on June 30, 1989 Intervenors argue that the Licensing Board erred in closing the evidentiary record on June 30, 1989, a time when the events giving rise to Intervenors' low power contentions had occurred, and Intervenors had filed a f
motion N / o hold open the record. Int. Brief at 23-24 Intervenors cite t
i UCS for the principle that once a hearing is begun, "it must encompass all l
material factors bearing on the licensing decision raised by the requester."
,I_d. at 24. Therefore, according to Intervenors, since the Licensing Board must have recognized that the low power testing events would be material to a full power licensing decision, the Licensing Board should have held the record open as requested. M. By " artificially" closing the record the Licensing Board impermissibly burdened Intervenors hearing rights with the reopen standard M.
The Licensing Board did not " artificially" close the record on June 30, i
1989. When the motion to hold open the record was filed (May 31,1989),
none of the events of June 22, 1989, which essentially gave rise to Intervenors' contentions, had yet occurred.
Intervenors' only argument in (Footnotecontinuedfrompreviouspage)
(Shoreham Nuclear Power Station Unit 1), CLI-89-1, 29 NRC 89, 93 (1989), citing id. LBP-85-12. 21 NRC 644, 651 (1985) (The evidentiary record closed wFe'n the hearing ended); see also Vennont Yankee, oT~tKe word " record" in NRC proceedings)T(UTiicussion of the meaning ;
infra, ALAB-138, 6 AEC 520, 523-24 (1973 11/ Motion of the Massachusetts Attorney General to Hold Open the Record
~
Pending Low Power Testing and the Required Yearly Onsite Exercise and for Other Related Relief. May 31,1989(" Motion").
I
..e-
.,m..-_.
c.
,..-w.
t
. l the Motion was that successful completion of low power testing was material to full power licensing, and therefore Intervenors should not be burdened l'
with reopening the record in order to litigate any acceptable contentions i
js filed in response to low power testing. Motion at 9.
In an oral ruling, the l
Licensing Board denied the motion and ordered the record closed, stating:
l I
l The Board, under the general authority granted by the Commission in the Nccice of Opportunity for a Hearing, which is effected by the constitution Order by the Chairman of the Panel, has two basic general areas of authority.
One, is to rule on the admissibility of i
contentions. I might elaborate on that just a bit.
l Also, we also have the responsibility and authority to rule upon the standing of a petitioner to intervene, but that isn't relevant here.
And then onct having found that a contention raises an issue for hearing, we have the authority and jurisdiction to hear and decide those contentions. And, of course, as everyone recognizes, we also have the additional authority to ra4e an issue sua sponte, which again is not involved in this consideraITon.
We have no other authority, none whatever.
We have come to a natural.ending to the evidentiary hearing. There is no more testimony to be presented to l
us. There is a motion which we understand will be l
received to receive evidence. But properly before us right now, there is just nothing more for us to do.
i l
We are required in those events to close the evidentiary record when we arrive at that normal milestone, and we I
have come there today.
There is no place in any of the court cases cited to us, any place in the Comission's regulations, na place in any of the Comission's adjudicative decisions which authorize the presiding officers to keep the evidentiary record open solely to ease or to create higher threshold burdens of a litigant.
It's s matter down the road, and it is quite simply just beyond our authority.
Even if the NRC as a whole has the responsibility to address the difference between reopening the record as compared to a late-filed contention, or as compared to a 2.206 petition, even if that were the case, that authority has not been granted-to licensing boards, and that would be true even if there is a void in the Comission's system of adjudicative fora. And as stated, we found nothing in the cases -- Union of 1
! f Concerned Scientists v. S'oC, or Mothers for Peace...--
that suggests to the contrary. ~
i Accordingly, this evidentiary record is now closed.
l f
Tr. 28288-89 (Judge Smith). E At that point, counsel for Intervenors advised the Licensing Board:
I would like, in the form of a clarification, we are intending, and I think I mentioned this once before, but we are intending to file a contention arising out of i,
the events of last week during low-power testing. It I
happens that, as the Board is aware, as part of this motion, we were asserting a right to litigate the events 1
of low-power testing, and we believe now there is such an event loosely defined. We are not sure exactly what occurred yet, but we have some sense of what occurred.
l Tr. 28290 (Traficonte).
From the foregoing, it is clear the Licensing Board recognized that its
~
authority did not extend to holding the record open, particularly since it f
i 12/ This determination is amply supported. As. stated in this proceeding
~~~
"a licensing board must confine itself to those matters with which it i
has been given authority to act." Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), ALAB-916, 29 NRC 434, 437 (1989); see also id, at n., 10. Jurisdiction of a licensing board in an operating license proceeding is limited-to adn.itted contentions i
or other matters specifically delegated to it.
10 C.F.R.
Il 2.104(c), 2.760a; Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units l'and 2) ALAB-316, 3 NRC 167 1
(1976); Duke Power Co. (Catawba Nuclear Station,' Units 1 and 2);
ALAB-825, 22 NRC 785, 790 (1985). See also Carolina Light and Power Co.
(ShearonHarrisNuclearPowerPlant),ALAB-852,24NRC532,545 (1986); Consolidated Edison Co. (Indiana Point Units 1, ? and 3),
ALAB-319, 3 NRC 188, 190 (1976). Licensing Boards, further, have been encouraged by the Commission to issue decisions, where consonant with due process, as soon as possible. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452,-453, 458 (1981);
Public Service Co. of New Hampshire (Seabrook Statinn. Units 1 and 2), ALAB-910, 29 NRC 95, 96 (1989) (citing unpubitsbed Comission memorandum order of January 24,1989).
J k
,,n
,.-.m
---n,
_ had only the representations of counsel that Intervenors intended to file a contention at some unspecified time in the future. E/
At the time the Licensing Board closed the evidentiary record, the parties had finished presenting evidence on all the issues in dispute.
l Intervenors not only did not assert that they had additional evidence to produce concerning issues litigated in the just completed proceeding, j
j according to Intervenors' counsel they had not even formulated their i
l contentions.
i In refusing to hold open the record, as the Licensing Board stated in a later decision, EI "our reasoning there took into account the fact that low power testing was not material to the issuance of t. full power license "
LBP-89-38 at 15. Therefore, having disposed of Intervenors' sole argument, and finding nothing in the Commission's regulations or case law authorizing it to keep the record open, the Licensing Board was obligated to ekse the evidentiary record. See Wisconsin Electric Power Co. (Point Beach NKlear Plant, Unit 1),ALAB-696,16NRC1245,1263(1982)("[T1heprocedr';sset forth in the Rules of Practice are the only ones that should be used (absent explicit Commission instructions in a particular case) in any licensing proceeding."). The Licensing Board did not commit error in closing the
- record, i
13/ Cf. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant.
l Units 1 & 2), 0 7-83-74, 18 NRC 1241, 1252 (1983); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units I and 2),
LBP-84-10, 19 NRC 509, 529-31 (1984); Consumers Power Co. (Midland Plant Units 1 and 2), LBP-84-20, 19 NRC 1285, 1301-02 (1984).
(Holding the record open on issues already admitted for litigation).
14/ Memorandum and Order (Ruling on Motions Regarding Onsite Exercise),
LBP-89-38, 30 NRC _ (Slip opinion, December 11,1989).
~
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-+
m-.
e-w.
- )
i
!!I. The Licensing Board Correctly Found That Intervenors' Low Power Testing Contententions Did Not Meet the Reopen the Record Standards of 10 C.F.R. $ 2.734.
Intervenors argue that if the reopening standards of 10 C.F.R.
9 2.734, as interpreted and expanded by Comission case law, are applied to l
their low power testing contentinns and the supporting bases. Interv6nors meet those standards and it was error for the Licensing Board to not reopen i
the record for litigation. Int. Brief at 26-28.
Intervenors also assert that the Licensing Board erred in rejecting certain contentions and bases for reasons other than failure to meet the reopen standards. Int. Brief at-40-47.
A.
Standards for Reopening the Record To put Intervenors' argument in perspective, it is necessary to revisit 10 C.F.R. 9 2.734, " Motions to Reopen." Paragraph (a) of the regulation provides:
(e) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:
(1) The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.
(2) The motion must address a sf p? ficant safety or environmental issue.
l (3) The motion must demonstrate that a materially different result would be or would have been likely i
had the newly proffered evidence been considered initially.
An explanation of the Comission's interpretation of the regulation is found in the Supplementary Information to the Federal Register Notice
" Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed.
Reg. 19535 (May 30, 1986), which promulgated 10 C.F.R. 5 2.734 Therein the
- Commission discussed the purpose of the rule and responded to public comments.
TheCommissionstatedthat"[t]hepurposeoftheruleisnotto foreclose the raising of important safety issues, but to ensure that, once a record has been closed and all timely-raised issues have been resolved, finality will attach to the hearing process. Otherwise it is doubtful whether a proceeding could ever be completed." 51 Fed. Rej. at 19539.~ The Commission quoted with approval the Supreme Court in ICC v. Jersey City, 322 U.S.503,514-515(1944) as follows:
If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.
It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion.
Id.
Clearly, the Commission intended that once closed, records of proceedings should remain closed except in certain well-defined circumstances.
In the course of responding to public comments, the Commission made several points which are pertinent to an analysis of Intervenors' arguments.
With regard to the " additional evidence" sought to be considered by a motion I
to reopen, the Commission stated that "[a] motion to reopen must be filed whenever a proponent seeks to add new information to a closed record, whether the information concerns a new contention or one which has already been heard." (emphasis added) 51 Fed., Reg. at 19538-39. This underscores
(
e the fact that 10 C.F.R. $ 2.734 is a vehicle by which a party may seek to
. add new evidence or information to the record (with additional hearings as a cosequence), and not just the initial means of airing a party's concerns in a public hearing when the Commission has taken an action requiring a hearing. The latter case is governed by 10 C.F.R. I 2.714. " Intervention,"
and it is well settled that the basis and specificity requirements for the admission of contentions are different from the requirements for reopening the reorn, E l In fact, the proponent of a contention need not present g evidence, but may build its case defensively, on the basis of cross examination. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA,2A,IB,and2B),ALAB-463,7NRC341,356(1978).
The Commission also noted that "[r]eopening will only be allowed where l
the proponent presents material, probative evidence which either could not have been discovered before or could have been discovered but is so grave that, in the judgment of the presiding officer, it must be considered anyway." 51 Fed. Reg at 19538.
Referring to the criterion El that a
" materially different result would be...likely," the Commission pointed out' that "a licensing board should he able to determine whether the information supplied by a movant could affect its decision even before that decision is reached."Jd.at19536. Since "[a] motion to reopen goes to the need for 15/ The recent amendement to 10 C.F.R. I 2.714 will increase the initial
~
burden on the admission of contentions, but still not to the extent of 10 C.F.R. I 2.734. See " Rules of Practice for Domestic Licensing Proceedings - ProceduraT'thanges in the Hearing Process", 54 Fed, Ry.33168(August 11,1989).
16/ The Commission did not specifically address the "significant safety or environmental issue" criterion in the Federal Register Notice.
l i
A
__ further hearings in a femal matter which is pending before the Commission,"
in an operating license proceeding the licensing board must determine if there is a "need for further hearings [on) whether or not the license should be witheld." M. Thus, a licensing board, in order to grant a motion to reopen, must determine that the evidence provided pursuant to 10 C.F.R.
l 2.734 demonstrates that it is likely the board would not be able to authorize the issuance of the license if further hearings were held on the evidence.
The requirements of 10 C.F.R. l 2.734 operate conjunctively; the motion to reopen must be denied unless the movant demonstrates %at each of the applicable criteria is satisfied.
Moreover, paragraph 2.734(b) specifies that the motion to reopen "must be accompanied by one or more affidavits which set forth the factual and/or technical bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied."
Such affidavits must be executed by " competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised." M. This supporting material "must be set forth with a degree of particularity in excess of the basis and specificity requirements contained in 10 C.F.R. I 2.714(b) for admissible contentions. Such supporting information must be more than mere allegations; it must be ta'itamount to evidence." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),CLI-89-1,29NPC89,93(1989), quoting Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 NRC 1361, 1366 (1984).
In addition, this evidence "must be strong enough, in the light of any opposing filings, to avoid summary disposition," and therefore the motion to reopen will not be granted "if the undisputed facts establ.ish that the apparently significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding."
Vemont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520, 523-24 (1973). E Thus, a motion to reopen the record will not be granted unless it satisfies the three criteria of 10 C.F.R. I 2.734(a), shows that the criteria have been satisfied by affidavits from competent individuals, and the evidence in the affidavits must both meet the admissibility standards of l
10 C.F.R. I 2.743(c) and be strong enough to avoid summary disposition in the manner set forth in Vemont Yankee.
Failure to satisfy any of these elements will result in the motion not being granted. E B.
Application of the Criteria of 10 C.F.R. I 2.734(a) i 1.
Timeliness 17/ Vermont Yankee significantly precedes the codification and refinement
~
of NRC case law, 10 C.F.R. I 2.734, which did not become effective until June 30, 1986. 51 Fed. Reg. 19535. However, "[t?he present rule is not, except where noted, intended to wipe out NRC case law concerning motions to reopen." Id. at 19537. The only real " change" to case law made by the regulaTTon was with regard to the
" materially different result" criterion (which is not mentioned by the Appeal Board in Vermont Yankee), to clarify that the inquiry should be the " likelihood" of a different result. J,d. at 19536-37.
18/ In addition,10 C.F.R. 9 2.734(d) provides that a motion to reopen
~
which relates to a contention "not previously in controversy among the parties" must also meet-the standards governing late-filed contentions set forth in 10 C.F.R. I 2.714(a)(1).
Inasmuch as the Licensing Board did not reject Intervenors' contentions for failure l
to meet those standards (LBP-89-28 at 44-45), and Intervenors do not take specific exception to the Licensing Board's ruling in this area (Int. Brief at 25 n.30), the late-filed contention requirements will not be discussed further.
l
f 1 l The Licensing Board found that Intervenors' first motion, filed on July I
21, 1989, was timely, thus meeting the 10 C.F.R. $ 2.734(a)(1) criterion.
LBP-89-28 at 27. The Licensing Board also found that Basis B and a portion of Basis C to contention JI-LP *, contained in Intervenors' second motion, filed August 28, 1989, were timely. LBP-89-28 at 51. The remainder of Intervenors' second motion was rejected for " pleading failures" (LBP-89-28 at 54), and will be discussed separately below.
2.
Safety Significance f
"Themostimportantofthesethree[10C.F.R.62.734(a)]criteriais whether the motion raises a significant safety or environmental issue."
Philadelphia Electric Co. (Limerick Generating Station Units 1 and 2),
ALAB-834, 23 NRC 263, 264 (1986). Based on affidavits supplied by the Staff EI,theLicensingBoardconcludedthatIntervenors'firstmotiondid not raise a significant safety issue. LBP-89-28 at 41-42.
At the outset, it is worth emphasi;:ing that at no time during the June 22, 1989 natural circulation startup test was reactor safety ever in question. See NRC Region I Augmented Inspection Team Report No. 50-443/89-82 at29(Attachment 5toMartin/EselgrothAffidavit).
Intervenors offered no evidence to the contrary.
Intervenors asserted, however, that the purported inability or unwillingness of plant operating personnel or management to adhere to applicable procedures raised a significant safety issue, even I
19/ Affidavit of James G. Partlow and Victor Nerses ("Parlow/Nerses Affidavit") and Affidavit of Thomas T. Martin and Peter W. Eselgroth
(" Martin /Eselgroth Affidavit"). submitted as attachments to NRC Staff.
Response to Intervenors' " Motion to Admit Contention, or in the Alternative, to Reopen the Record, and Request for Hearing," August 18,1989("StaffResponse").
25 -
though that noncompliance in itself had no safety significance.
Intervenors' assertion is incorrect.
The Report of the Augmented Inspection Team (AIT) assigned to investigate the June 22, 1989 event concluded that " reactor plant safety was never in question, and with the exception of the significant error of not tripping the reactor at the point first called for by the test procedure and loss of pressure control due to letdown isolation and pressurizer heater deenergiration, the operating staff performed well." AIT Report at 6.
While the Staff does not minimize the importance of adhering to applicable procedures and looks disfavorably upon an applicant's failure to comply with applicable requirements, it is also important that the June 22, 1989 event be viewed in context.
The AIT found that the June 22 event was " safety significant" when considering the performance of management and operator personnel during a specific plant test. Partlow/Nerses Affidavit at 15.
But as Messrs. Partlow and Nerses have noted, and as the Licensing Board has agreed, viewed in l
context this event was an aberr6 tion in what otherwise had been fully acceptable performance during the preparations for, and conduct of, low l
power testing. Id.; LBP-89-28 at 42.
The Staff continually assesses the performance and qualifications of an applicant through the inspection program and Systematic Assessment of Licensee Performance (SALP) process. Partlow/Nerses Affidavit at 15.
During the previous SALP period, the Seabrook Applicants were evaluated as having a high level of technical competence during program planning and implementation; licensed operators exhibited conservative judgment and l
displayed a safety-conscious attitude; the operators' conduct was highly 4
I
i professional during preoperational testing, core loading, and hot functional i*
testing; and management was found to have been attentive to problem areas.
Id. The Staff continues to believe, as supported by its inspection report findings, that personnel involved in the operations of the facility are well l
trained, dedicated, highly motivated, and responsive to NRC concerns. Id.
In this connection, it should be noted that during the preparations for low power testing, the aperating crews were observed conducting operations in a professional manner, following operating procedures, and as being cognizant of ongoing activities. Id.
Test activities have been conducted in a smooth,
{
safe, and well coordinated manner. M.
Communication between management and operations staff was satisfactory. M.
Based on the above, the Licensing Board was justified in finding that the event of June 22, 1989 was an aberration, and did not rise to the level l
of a significant safety issue 3s contemplated in 10 C.F.R.
52.734(a)(2). However, the Licensing Board went further, finding that the j
Martin /Eselgroth Affidavit "is very important to the resolution of the issue of safety significance." LBP-89-28 at 34.
The Licensing Board noted that Mr. Martin was present in the control l
room and observed the events of June 22, while Mr. Eselgroth was the leader of the AIT. Id. The Licensing Board then proceeded to summarize the principle findings of the AIT as set forth in the Martin /Eselgroth Affidavit. LBP-89-28 at 34-38; see Martin /Eselgroth Affidavit at 7.
l Comparing the Martin /Eselgroth Affidavit with Intervenors' allegations, the s
Licensing Board found that, with one exception, the Staff witnesses disagreed with Intervenors, and weighed the evidence in favor of the Staff.
LBP-89-28 at 38-41.
E b
- - - - ~. - - -. -
,,w.-v-
n - With respect to the allegation that operators and management deliberately disregarded test procedures, the Staff witnesses concluded that
~
the operators believed the test trip criterion was guidance only. Id. it 38.
The Licensing Board found that the Staff witnesses conclusion was
" definitive," since they were in the best position to judge the cause of the j
i failure to trip the reactor.,I_d.
j
- With respect to the allegation that senior management personnel knew i
that continued operation violated test procedures, the Staff witnesses
[
asserted that only the Unit Shift Supervisor knew the criterion was t
exceeded, and he thought it was only guidance. Id. at 38 39.
- With respect to the sillegation that senior management provided inaccurate and incomplete information to the NRC, the Staff witnesses found Applicants' information acceptable, notwithstanding the Applicants' mea culpa to that effect. I_d. at 39.
u
- The Staff witnesses agreed with Intervenors' witnesses that "some l
j improvements" in Seabrook staff training was necessary. I_d at 40. However, I
they did not believe that the training program inadequacies are so great as to materially change the Region's recommendation relative to the issuance of i
a low power license. I_d. at 40; See Martin /Eselgroth Affidavit at 115.
. The Limnsing Board found that the two Staff Affidavits had provided it
[
l with an " ample factual record" El to determine if Intervenors had raised a j
20/ Where a motien to reopen has been denied based on the filings of the parties, "the ' record' (in the broad sense).will necessarily have.
been supplemented by the introduction of the affidavits, letters or other materials accompanyirc the motion and the responses thereto.
The ' hearing record,' however, has not been reopened. Typically, in (Footnote continued on next page)
. ~.., -.
-- i i
significant safety issue, and concluded they had not. I_d, at 41-42. The d
Licensing Board then set'out some of the grounds for its conclusion. M. at 42-43. The Intervenors, although submitting an affidavit did not have the knowledge or the skill to rebut the Staff's conclusions.
Id. at 32-43. The l
1 Licensing' Board had ample grounds to decide that the events of June 22, 1989 had not given rise to a significant safety issue and that Intervenors had not satisfied the significant safety issue criterion of 10 C.F.R.
$ 2.734(a)(2).
3.
Materially Different Result Without extensive discussion, the Licensing Board concluded that Intervenors' first motion did not " demonstrate that a materially different-result would have been likely had the contention and newly proffered evidence been considered initially." Id. at 43. ~The Licensing-Board found that its conclusion was " virtually forced" by the facts which led to its.
l conclusion that the motion did not address a significant safety issue or that "the events of June 22 did not reveal a fundamental flaw in NHY's procedures, training and policies. M. The 1.icensing Board determined that, "if the matter had been litigated before the close of the record, the most likely result would have been to see to remedial action." Id. at 43-44.
(Footnote continued from previot:s page) this situation, the result will be designated a denial of the ' motion-i to reopen.the record,' ever though that description of the action taken does not precisely reflect what transpired." Vermont Yankee, ALAB-138, 6 AEC at 523.
q 4.
Intervenors' Arguments-The gist of Intervenors' arguments on how they have indeed met the standards for reopening the record appear to be that, since there are-questions concerning the events-of June 22, 1989 and the causes thereof,.
l they should not be prevented from reopening the record. See Int. Brief at 30,37-39c Intervenors misapply the law.
10 C.F.R. 5 2.734(a) clearly i
states that a " motion to reopen a closed record to consider additional evidence will not be granted" unless the three reopening criteria are satisfied.
"As is well settled, the proponent of a motion to reopen has a l
heavy burden." (emphasis addedi Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320. 338 (1978), citing Du'<e Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC G19,620(1976).
Merely asserting that the evidence relied upon by the Licensing Board in denying the motion is open to question does not carry that burden.
l Moreover, as Applicants cogently point out in their January 19, 1990 Brief I
on appeal, Intervenors proceed from the erroneous premise, based on Intervenors' reading of Vermott Yankee (ALAB-138). that if their moving papers are strong enough to avoid summary disposition, they are guaranteed a reopened record. App. Brief at 31. ' As the Staff discussed, supra', the sunnary disposition test is a screening device which goes only to the adequacy of the evidence (affidavits)-a movant seeks to use to demonstrate satisfaction of the three criteria of 10 C.F.R. 6 2.734(a). A movant must still show satisfaction of those criteria, whether or not his evidence demonstrates " material issues of disputed fact." See int. Bricf at 30.
J 4
i
~
n l Intervenors also complain that the Licensing Board. "[t]o prevent a hearing," improperly weighed the evidence before it "in order to. summarily dispose of tha contention." Int. Brief at 30. Contrary to Intervenors' position, this is precisely what a licensing board (or whoever has jurisdiction) is supposed to do, i.e., to summarily determine on the basis of the pleading and~ affidavits whether proponents of a motion to reopen have-satisfied the reopening standards. The Comission itself, when faced with motions to reopen, has examined the material before it, weigh'ed the factual issues, and made its decision accordingly. See Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-87-5, 25 NRC 884 (1987); j_c!..
q l
CLI-88-3, 28 NRC 1 (1988).- In dealing with' evidence in support of a motion-j 1
+^
' the Appeal Board stated:
l We have carefully examined each of the joint j
l' ervenors' charges with their supporting-materials and che responses of the applicant and the staff. Our l
scrutiny of the motions leads us to conclude that the joint intervenors have failed i. present new evidence of i
any significant safety issue that could have an effect on the outcome of the licensing proceeding.
4 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant Units 1 and 2), ALAB-775, 19 NRC 1761, 1367 (1984).
I Intervenors' orgument that the Licensing Board erred in making a factual determination based on the material submitted in support of, and opposed to.
their motion to reopen is without merit.
5.
Sumary The Licensing Board did not grant Intervenors' first motion to reopen i
the record to receive additional evidence because the evidence supplied by Intervenors in affidavit form, in light of the opposing filings, did not
]
demonstrate that there was a significant safety issue and that a materially different result would have-been likely. The Licensing Board had sufficient 1
8
, 9 facts before it to make that determination.
Intervenors failed to bear f'-
their heavy burden as proponents of the motion to reopen._ The Licensing Board's decision should be affirmed.
i IV. The Licensing Board Correctly Applied:the Fundamental Flaw
)
Standard.
Intervenors assert that the Licensing Board." appeared to reject" portions of JI-LP-1 dealing with training (Bases -B.2, B.5 and C) for failure to allege a fundamental flaw as defined in Long Island Lighting Co.
]
(Shoreham Nuclear Power Station), ALAB-903, 28 NRC 499 (1988) Int. Brief ~ at 40-41.
Intervenors are simply wrong. The Licensing Board did discuss the j
fundamental flaw test in connection with low power testing contentions in general (see LBP-89-28 at 16 et seq.), and Intervenors' training allegations in particular (LBP-89-28 at 24-25); however, it did not reject those allegations only because they failed the test.
Rather, the Licensing Board applied the fundamental flaw test at 'the " contention-screening stage."
LBP-89-28 at 23.
Intervenors are correct to the extent that the Licensing Board labelled their training allegatiors " defective." See LBP-89-28 at 25.
H0 wever, the Licensing Board clearly indiceted.that it was not rejecting-the allegations at that point, but would measure them against the standards for reopening the record. Id.
Application of.the fundamental flaw test to contentions, such as these, which arise out of low power or ascension testing is proper. As the court indicated in the UCS case, 735 F.2d at 1447-49, litigation of contentions arising late in a proceeding could be limited-to-those material to the decision, i.e. " fundamental flaws", in contrast to minor or ad hoc problems.
- E/did so
)
The Staff recognizes that the cases endorsing the use of the test in the context of emergency planning exercises. However, low-power testing is analogous to emergency exercises where contentions are concerned. As the Licensing Board stated:.
The analogy is sound. Low power operation is, in a manner, similar to emergency planning and exercises and should be considered testing and training.
In fact, since a utility is not required to demonstrate competence at low power before the grant of a full power license, there is all the more reason to limit low power contentions to those alleging " fundamental flaws" in.
- i operational preparedness.
LBP-89-28 at 18. S/
l The Licensing Board rightly looked to see if the contentions alleged a-1 fundamental flaw, i.e., one material to the licensing decision.
j l
l l
l i
l 1
l i
l 21/ UCS;-LongIslandLightingCo.(ShorehamNuclearPowerStation, Unit E CLI-86-)l, 23 NRC 577, 581 (1986) ("Since only fundamental flaws 1
are material licensing issues, the hearing may be restricted to those.
issues."); Public Service Co. of New Hampshire (Seabrook Station,.
Units 1 and 2), ALAB-918, 29 NRC 473 (1939).
22/ In Shoreham, supra, ALAB-903, 28 NRC 499, 505 (1988), it was recognized that the test for fundamental flaw contentions in emergency planning is akin to the test applied to quality assurance contentions.
It is not isolated incidents which must be shown but a-pervasive breakdown of a program.
See Union Electric Co. (Callaway.
Plant, Unit 1),ALAB-740,18NRC34731I5(1983).
,.j
.l 1 i Y.
Tho Licensing Board Correctly Rejected the Remainder of '
j Intervenors' Contentions and Bases.
~
The Licensing Board rejected portions of Intervenors' second motion for pleading failures, in that "it does not clearly inform the Board and the NRC Staff about the issues sought to be litigated.
It does not inform the
' Applicants about the charges against which they must defend.
In that it does not. adequately separate new information from previously available t
information, we conclude that the Second Motion is not timely.under the standards of 10 C.F.R. 5 2.734(a)(1)..." LBP-89-28 at 47-48.
Intervenors argue that it was the responsibility, indeed the obligation, of the Licensing board to sift through the various documents
)
cited by Intervenors before making its judgment on timeliness. Int. Brief at l
- 44. As legal support for their argument, Intervenors cite Vermont l
Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 30NRC29,48(1989) for the proposition that a licensing board.must make "a f
l reasonable review of discrete documents...to determine if an l
admissible contention is presented." (emphasis added) Int. Brief at 45-46.
l' Intervenors are wrong on two counts.
i First, by their own words intervenors-acknowledge that the Vennont Yankee decision-dealt with the admission of contentions pursuant to 10 i
[
C.F.R. 9 2.714.
That case has nothing-to do with reopening the record under i
10 C.F.R. 9 2.734. Moreover, the language quoted by.Intervenors was taken-out of context.
The two sentences innediately preceding the quoted l
paragraph state:
On the other hand, contrary to wiW
- N'v 5 U rcuit seemingly believes is required b3 o u.de boards must do more than uncritica17y a.ce:
- s r ty '.are assertion that a particult.i docu -
r Afes u basis for its contention, without even
..I;<,,
, L > document s
,.,v~-+-
i i itself to determine if it says what the party claims it says and if it appears to support a litigable contention. Otherwise the contention-admission inquiry.
would be a meaningless exercise.
ALAB-919, 30 NRC at 48.
It is readily apparent that (1) Vermont Yankee applies only to the.
" contention-admission" stage of' the proceeding, and (2) the review required of a licensing board is intended to weed out documents which do not provide a basis for a proposed contention.
It does not require the' Licensing Board' I
to wade through documents in order to formulate.a contention for i
intervenors. Comonwealth Edison Co. (Zion Station, Units-1 and 2),
f ALAB-226,8AEC381,406(1974).
Second, Intervenors ignore the applicable case law. As noted by the Licensing Board (LBP-89-28 at 26) the Appeal Board has stated:
[T]he Comission expects its adjudicatory boards to enforce the section 2.734 requirements rigorously -
i 1.e., to reject out-of-hand reopening motions that do not meet those requirements within their four corners....
Seabrook,ALAB-915,29NRC427,432(1989).
As discussed previously, for Intervenors to. carry their heavy' burden in reopening the record, they must demonstrate that their motion satisfies the i
three criteria of 10 C.F.R. 9 2.734(a). The first criterion'is that the j
4.
It is neither the Licensing Board's responsibility, l
motion must be timely.
i l
nor its obligation, to ease Intervenors' burden. See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),
CLI-86-1, 23 f1RC 1, 6 (1986) ("It is not the duty of the adjudicatory boards to search for evidence that might fill in gaps in th'e moving party's submissions.").
Intervenors' argument that the Licensing Board erred in not-performing a meticulous review of their submissions to determine if_ they.
l
)
e satisfied the timeliness criterion of 10 C.F.R.
62.734(a)iswithout merit.E3I a
Moreover, the Intervenors failed to meet the other criteria of 10 C.F.R. 9 2.734(a) for reopening the record on the added c itentions and bases. The only statements submitted on why these additional contentions address "significant safety issues" do not pertain to the generalized l
matters they alleged on training, maintenance and quality assurance, but-only to the actions pertaining to the natural circulation test.
This is not a showing of a "significant safety issue" or does it' " demonstrate that a materially different result would be... likely had the newly proffered evidence been considered intially." 10C.F.R.I2.743(a)(2)and(3);see Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and2),ALAB-756,18NRC1340,1344-45(1983); Callaway,supran.22.SSI t
--23/ No showing was made by Intervenors, in their motion of August 28 1989, of any matter which they could not have alleged in their original July 21, 1989 motion. The August motion was focused-upon 4
isaining and quality assurance matters which it was alleged were revealed by the Staff's AIT report No. 50-443/89-82.
The Intervenors failed to show that they did 'not have the basic facts premising their allegations at the time their original motion was filed.
As stated in Duke Power'Co. (Catawba Nuclear Station, Units 1 and 2),
CLI-83-19,17 NRC 1041,1045-48 (1985), the prompt filing of a contention after the issuance of a staff report does not of itself-
.show timeliness.
3 24/ The criteria in 10 C.F.R. 9 2.734(a) were not addressed individuals "with a specific explanation of why it has been met", as required by 10'C.F.R. 5 2.734(b).
Instead the second motion to add additional i
contentions only summarized these new contentions and bases and i
concluded that the standards were met.
Second Motion at'17-19. A bald statement that a matter in " safety significant" does not meet I
the regulatory-requirement for new contentions and must be rejected Public Service Co. of New Hampshire (Seabrook' Station, Units 1 and 2), ALAB-915, 29 NRC 427, 432 (1989).
I l
I J
i,
CONCLUSION For the reasons set forth above, the NRC Staff submits that the Licensing-Board in LBP-89-28 properly denied Intervenors' motions to reopen the record, and the decision should be affirmed.
Respectfully submitted,-
M n-Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland ~
this 30th day of January,1990 i
i l
4 i
l b
i w
-1 i
i l
t-
DOCKETED UNITED STATES OF AMERICA NUCLFAD REGULATORY COMMISSION i
90 JAN 30 N133 l
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
RfftCE 5)C f A Docket Nos. 50-44d@lpaAnc5!
.i PUBLIC SERVICE COMPANY OF 50-444-OL-1 NEW HAMPSHIRE, g d.
(Seabrook Station, Units 1 and 2 CERTIFICATE OF SERVICE I
hereby certify that copies of "NRC STAFF'S BRIEF IN OPPOSITION TO INTERVENORS' APPEAL OF LBP-89-28" 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, by deposit in - the - Nuclear Regulatory Commission's internal mail system, as indicated by double asterisks, by express mail this 30th day of January 1990:
IvanW. Smith, Chairman (2)*
H. J. 4ynn, Esq.
Administrative Judge Assistait General Counsel Atomic Safety and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Connission Agency i
Washington', DC 20555 500 C Street, SW i
Washington, DC 20472 Richard F. Cole
- Administrative Judge Calvin'A. Canney Atomic Safety and Licensing Board City Hall U.S. Nuclear Regulatory Commission 126 Daniel Street Washington, DC 20555 Portsmouth-NH 03801 Kenneth A. McCollom**
John Traficonte. Esq.**
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of. the Attorney General Stillwater, OK 74075 One Ashburton Place,19th Floor Boston, MA 02108 Diane Curran, Esq.**
Harmon, Curran & Tousley Geoffrey Huntington,mEsq.**
i 2001 S Street, NW Assistant Attorney General Suite 430 Office of the Attorney General Washington, DC 20009 25 Capitol Street Concord, NH 03301 Philip Ahrens, Esq.
Assistant Attorney General Office of the Attorney General l
State House Station Augusta, ME 04333
2-Robert A. Backus, Esq.**
Backus, Meyer & Solomon Peter J. Matthews, Mayor.
1 116 Lowell Street City Hall-Newburyport, MA 01950 Manchester, NH 03106 Paul McEachern, Esq.**
Mrs. Anne E. Goodman, Chairman Shaines & McEachern Board of Selectmen 25 Meplewood Avenue 13-15 Newmarket Road Portsmouth, NH 03801 Durbam, NH 03824 Sandra Gavutis, Chairman Hon. Gordon J. Humphrey Board of Selectmen Unites States Senate RFD #1, Box 1154 531 Hart Senate Office Building Washington, DC 20510-Kensington, NH 03827 William S. Lord Barbara J. Saint Andre Esq.
Board of Selectmen Kopelman & Paige, P.C.
Town Hall - Friend Street 77 Franklin Street Boston, MA 02110
- h. Scott Hill-Whilton, Esq.
Michael Santosuosso, Chairman Lagoulis, Clark, Hill-Whilton
& McGuire Board of Selectmen 79 State Street South Hampton, NH 03827 Newburyport, MA 01950 Ashod N. Amirian, Esq.
Allen Lampert.
Town Counsel for Merrimac Civil Defense Director 145 South Nain Street Town of Brentwood P.O. Box 38 Bradford, MA 01835 William Armstrong Civil Defense Director Richard R. Donovan Town of Brentwood Federal Regional Center 20 Franklin Federal Emergency Management Agency Exeter, NH 03833 130 228th Street, S.W.
Bothell, Washington 98201-9796 Gary W. Holmes, Esq.
Holmes & Ellis Robert R. Pierce, Esq.*-
47 Winnacunnet Road Atomic Safety and Licensing Board Panel-Hampton, NH 03842 U.S. Nuclear Regulatory Connission Washington, D.C.
20555 O
e
L i i Thomas G. Dignan, Jr., Esq.**
Ms. Suzanne Breiseth l
Robert K. Gad III, Esq.
Board of Selectmen
,o Ropes & Gray Town of Hampton Falls i
One International Place Drinkwater Road L
Boston, MA 02110 Hampton Falls, NH 03844 J.P. Nadeau
-Atomic Safety and Licensing Board of Selectmen Board (1)*
1 10 Central Street U.S. Nuclear Regulatory Commission Rye, NH 03870 Washington', DC 20555 Judith H. Mizner, Esq.
Atomic Safety and Licensing 79 State Street Appeal Panel (6)*
Newburyport, MA 01950 U.S. Nuclear Regulatory Comission.
J Washington, DC 20555 Robert Carrigg Board of Selectmen Office of the. Secretary (2)*-
Town Office U.S. Nuclear Regulatory Comission Atlantic Avenue Washington, DC 20555 North Hampton, NH 03862 Attn: Docketing and Service Section
~
d Richaro T.' Bachmann
' Counsel for NRC Staff
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