ML20010G561
| ML20010G561 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 09/18/1981 |
| From: | Hassell D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20010G562 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8109220210 | |
| Download: ML20010G561 (17) | |
Text
e September 18, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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- j Uo, SOUTHERN. CALIFORNIA EDIS0N COMPANY,)
Docket No. 50-361 0 1. The Staff's views on the appropriateness of the two additional issues proposed by Inter'.enors are provided below.
II.
DISCUSSION A.
Intervenors' First Issue With respect to the first issue which Intervenors seek to have litigated as a contention in this proceeding, the Staff objects to its consideration at this stage of the proceeding.
As stated in the letter of September 9, 1981, and the Intervenors' Memorandum at page 2, the issue ersumes that matters that might (suse a radiological emergency at Unit 1 at the San Onofre Nuclear Generating Station (" SONGS") are relevant to this proceeding which concerns operating licenses for Units 2 y
A filing submitted by Intervenors was received by the Staff on September 16, 1980, entitled NMORANDUM 0F P0INTS AND AUTHORITIES IN SUPPORT OF INTERVEN0RS PROPOSED TSSUES RELATING TO LOW POWER LICENSE (Undated) (hereafter referred to as "Intervenors' Memorandum").
St'aff counsel was advised that this document was not filed on September 11, 1981 by Express Mial, as required.
The certificate of service indicates a service date of September 14, 1981.
In view of the tardy filit by Intervenors, the Board Chairman extended the due date for Staff's filing to September 18, 1981.
and 3.
This issue, they assert, is "directly tied to energency planning in the 15w power contex5. (,[d.)
Acchpting Intervenors' assertion for the sake of argument, the Staff submits that the proposed contention raises a wholly new contention, beyond the scope of the patter in controversy previously admitted by the Licensing Board. The state of emergency preparedness at SONGS Unit 1 is not an issue in this proceeding.
Indeed, the response of SONGS Unit 1 to a radiological emergency is a Unit 1 question; hence, it is not a matter that is within the scope of a proceeding concerning the cperation of SONGS Unit 2 at low power (or any power level, for that ma tter).
The Commission has indicated that Section 50.57(c) does not contemplate a new opportunity for contentions. The Commission stated:
10 C.F.R. 50.57(c) does not generally contemplate that a new evidentiary record, based o6 litigation of new contentions, would be canpiled'on the notion for fuel loading and low power testing. 5/
Section 50.57(c) explicitly provides that a party has a right to be hused on the motion for a low-power license only to "the extent that his contentions are relevant to the activity to be authorized" which, in this instance, is fuel loading and low-power testing.6/
As discussed l
.arlier, Intervenors' first issue as framed is nut related to any contention admitted as an issue in this proceeding.
Rather, it seeks to bring into controversy whether Unit 1 could affect Unit 2 or Unit 2 affect Pacific G11_and Electric Company (Diablo Canyon Nuclear Power Plant, 5f Units 1 and 2), CL I-Li-5,1.3 NRC 361, 362 (1981).
6/
10 C.F.R. 6 50.57(c).
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Unit 1 in the context of emergency preparedness. While the issue they seek to raise may indeed'. relate to emergency plarning considerations, it simply does not do so in the framework of the contentions already adnitted (including the low-power contention accepted by the 1.icensing Board which, in our view is merely a distillation of all emergency preparedness contentions in a low-power context) and thus must be viewed as a new contention.
Since the Intervenors seek to have this new issue admitted as a contention in this proceeding, the contention must satisfy the specificity and bases requirements of Section 2.714(b). The degree of specificity with which the basis for a contention must be alleged initially involves the exercise of judgment on a case-by-case basis.E Nevertheless, it is incumbent upon Intervenors to frame their conten-tions with sufficient preciseness to show thr.t the issues raised are within the scope of the cognizable issues to be considered in the proceeding.E When tested against these general principles, this issue is clearly inappropriate for consideration and should be dismissed.
In their letter to the Board of September 9,1981, the Intervenors state, in pertinent j
part:
y Commonwealth Edison CompM (Byron Nuclear Power Station, Units 1 and,2), LBP-80-?S, 12 NP.C 683, 687 (1980) quotina Philadelphia Electric Company Neach tottom Atomic Power Stat icn, Units 2 and 3),
ALAB-216, 8 AEC 13, 20 (1974).
8f Id_. at 689.
For emergency planning purposes, emergency planning
, decisions should be based upon the assumption that
- all interconnected reactors emit their postulated
- fission product releases simultaneously, and a low
'- power license should not be issued without a thorough
- review of possible accident sequences and a risk assessment of the operation of SONGS 1, 2 and 3.
The Intervenors elaborate on this issue in their latest filing where Intervenors state:
However, the Intervenors feel that in order to properly assess the risks of low power operation at SONGS Units 2 and 3, the Applicant must demonstrate that an accident at SONGS 2 and 3 under low power operation could not initiate an accident at Unit I which is currently in operation or vice versa. 9f However, Intervenors have failed to provide any specific basis for believing or feeling that an accident at SONGS Unit 2 would initiate an accident at SONGS Unit 1 or that an accident at SONGS Unit 1 would initiate an accident at SONGS Unit 2.
The language quoted from their letter merely provides Intervenors' generalized views of what they believe an emergency planning assnption should be for a culti-unit site without providing any specific bases for such views.
Furthermore, Intervenors' first issue is prenised on their belief that SONGS Unit 2 for which the low-power authorization is being sought, is interconnected with SONGS Unit 1.
Intervenors do not identify any safety-related or nonsafety-related systems that are or will be shared among the units, and also have failed to provide any reasons for their belief that the units are in any way interconnected. Moreover, the record in this proceeding indicates that the San Onofre reactors are l
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Intervenors' liemorandum at 4.
. independent to the extent that an accident in one reactor would not initiate in accident in another.
In a letter to the Board containing Staff's ft)rther responses to Friends of the Earth's third set of interrogatories, the Staff stated in part:
The Staff has not directed the Applicants to evaluate, pursuant to 10 C.F.R.100.11(b)(1), whether or not the San Onofre reactors are independent to the extent that an accident in one reactor would not initiate an accident in another. This is based on the Staff's evaluation th.1t the reactors are independent to the extent that an accide..it in one reactor would not initiate an accident in another.
10/
In the Affidavit of Harry Rood (attached), he indicates that the only systems connecting SONGS Unit I with SONGS Unit 2 are the fire water system and the electric power distribution system at the switchyard, and neither system is safety-related. Consequently, Intervenors have failed to provide an adequate basis to show that this issue is within the scope of the cognizable issues to be considered in an evidentiary hearing on Applicants' low-power motion.
B.
Intervenors' Second Issue Regarding Intervenors' second issue, the Staff believes that the contentien should be rejected since it does not comply with the Commission's requirements for late-filed THI-related contentions.
Enclosure to Letter from Richard K. Hoefling, Counsel for NRC Staff 10/
to the Board, transmitting "NRC Staff Further Responses to the Third Set of Interrogatories by Friends of the Earth," dated June 12, 1981.
.g.
On December 18, 1980, the Commission issued a Statement of Policy
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concerning the litigation of TMI-related issues in operating license proceedings.E The Commission stated, in pertinent part:
The Commission believes that 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 of the factors in 10 CFR 2.714(a)(1). Tfie Commission expects adherence to its regulations in this regard g/
(Emphasis added)
Those factors are:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protect 2d.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interst will be represented by existing parties.
j (v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
Subsequently, the Commission re'
.ted this requirement in an order concerning the Diablo Canyon proceeding. E The Commission also i
g / STATEMENT OF POLICY:
FURTHER C0lHISSION GUIDANCE FOR POWER REACTOR OPERATING LICENSES, CLI-80-42, 12 NRC 654 (1980).
H/
Id_. at 661.
13/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5,13 NRC 361, 364 (1981).
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. provided guidance on the litigation of TMI-related issues in the context of moti6ns for fuel loading and low-power testing by stating:
- 10 CFR 50.57(c) does not generally contemplate that a
~ new evidentiary record, based on litigation of contentions, would be compiled on the motion for fuel loading and low power testing. M/
The Intervenors' second issue it by its own terms a TMI-related issue because the issue is framed in terms of compliance with the TMI Action Plan requirements. During the conference call held on September 10, 1981 with the Board Chairman, the Intervenors acknowledged that this issue was subject to the requirements of Section 2.714 for the untimely filing of contentiens.
Citing the Licensing Board's Partial Initial Decision in the Diablo Canyon proceeding,El the Intervenors now argue that all that is required for the admission of late-filed TMI-related contentions is that such contentions directly address NUREG-0737 to establish good cause.EI First, Staff would note that the decision to adnit the contention concerning block valve testing (cited by Intervenors in their Memorandum at 6) was not made by the Diablo Boaro in the partial initial decision.
Rather, the Licensing Board's decision to admit Tf!I-related contentions based on their interpretation of the Comnission's policy 14/ Id. at 362.
1_5f Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, 5
Units 1 and 2), Slip Opinion at 4 (July 17,1981).
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M/ Intarvenors' Memorandum at 6.
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statenent of December 18, 1980, was set forth in the Prehearing Conference Order of February 13,1981.11/
3 The Staff believes that a careful examination of the Diablo Board's Order of February 13, 1981, makes clear that the Board's decision to admit TMI-related contentions was tied to the particular circumstances surrounding that case. At the time of the TMI accident, the record in that proceeding was complete. The accident prompted a motion from Joint Intervenors on May 29, 1979, to reopen the record. On June 20, 1980, the Commission issued a " Statement of Policy for Further Commission Guidance for Power Reactor Licenses," 45 Fed. Reg. 41738, which adopted the requirements of NUREG-0694, "TriI-Related P.equirements for New Operating Licenses."18/
On July 14, 1980, the Applicants filed a motion for a low-power license. The Dieblo Board set a date of December 3,1980, for the filing of contentions on Applicants' motion.
The Joint Intervenors filed their contentions by that date.3E/ Only fif teen days later, the Commission issued a revised policy statement adopting NUREG-0737.29/
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12/ Pacific Gas and Electric Lampany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-81-5, 13 NRC 226 (1981).
18/ Id. at 227.
J9/
_Id. at 228.
l 20/ This is the December 18, 1980, Policy Statement referred to earlier.
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Staff submits that the evolving nature of significant regulatory require nts directly related to the mat'.ers in the Diablo case influenced and detennined the outcome reached by h.e Diablo Board on THI-related contentions.
Indeed, the Diablo Board made clear that this was the case when it stated:
Some recent osalopments must be taken into consideration against this background. * *
- More importantly, the Ccanission has adopted measures it considers both necessary and sufficient to adequately protect the public health and safety for new operating licenses (NUREG-0737) along with a revised policy statement to govern consideration of these measures in licensing proceedingt.
Further, the Commission has recently adopted new rules governing emergency planning.
These developments must be considered in passing on the relevance of contentions to the motion for a testing license.
NUREG-0737 and the rule on emergency planning constitute new regulatory requirements.
New regulatory requirements have always been viewed as establishing good cause for reopening a record or admitting new contentions. _2_1/
The Staff believes that the circumstances (in particular, the time f rame in which the contentions were submitted vis-a-vis the issuance of the revised policy statement) that led to the Licensing Board's ruling in I
I the Diablo case have no rec parallel to the case at bar, and are clearly distinguishable from the situation here.
Consequently, Intervenors' second issue h subject to a showing of good cau:a and balancing of the f
j 21/ Diablo Canyon, 13 NRC 226, 233 (1981).
factors in Section 2.714(a)(1) which the Commission admonished aherence to in addressing Tlil-related contentions.
StaIff believes that an exanination of the factors set forth in Section 2.714(a)(1) results in a balancing the weights against entertainment by this Board of Intervenors' late-filed TMI-related contention.
Factor (i) Good cause, if any, for failure to file on time.
Intervenors' allegation that NUREG-0737 was not released until long after the contentions were fixed in this proceedin[I is simply inaccurate. NUREG-0737 was published in November of.1980 and copies sent to the parties in that time frame (see letter from Lawrence J. Chandler to the counsel for the parties dated December 19, 1980 transmitting the revised policy statement); consequently, Intervenors have had ample opportunity to raise this contention should they have chosen to do so.
Supplement No. I to the Safety Evaluation Report (SER), referenced in the subparts to Intervenors' contention, was im..:d in February of 1981 and it contained Staff's evaluation of SONGS Units 2 and 3 against the TMI Action Plan requirements. Moreover, Supplement No. 2 to the SER was issued in May of 1981, and it contained, among other thir.gs, Staff's further evaluation of 5ONGS Units 2 and 3 against the TMI Action Plan i
requirements.
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l 22/ Intervenors' Memorandum at 7.
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Staff believes that Intervenors' comments about the issuance of a low-powir testing licen'se in terms of the timing of various requirements E s unpersuasive.
In Staff's view, the fact that i
Applicants have filed a motion for a license for fuel load and low-power testing is of no consequence with respect to the opportunities Intervenors had to raise this coatention.
If Intervenors had these concerns they should have been voiced some time ago since the Appliccnts did not become subject to any new requirements by virtue of having filed their motion for a low-power license.
Furthemore, Intervenors attended the prehearing conference held in San Diego, California, on April 29, 1981. During that prehearing conference Applicants infomed the Board that., under their ',urrent schedule, SONGS Unit 2 wou!d be completed by the end of July 1981.
(Tr. 300) Moreover, Staff infomed the Board that its latest case load forecast for final projections was reasonably consistent dth Applicants' suggested schedule.
(Tr. 301) The Eoard Chaiman mentioned the possibility of a low-power license and also expressed to the parties the Commission concern about delay in the licensing process for plants nearly comp;eted because of the Staff resource problem associated with the TMI accident.
(Tr. 301-302) Thus, Staff believes that Intervenors had ample notice of the possibility that l
such a motion might be filed and thus have not shown good cause for l
thislate-filedcontention;accordingly, factor (i)weighsagainst consideration of this issue.
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_2_3/ Intervenors' flemorandur...it 7.
Factor (ii) and (iv) The availability of other means whereby the
~ petitioner's interest will be protated. The extent to which the pe,titioner's interest will be repre,ented by existing parties.
If' this Board were faced with a decision whether to admit a petitioner as an intervenor where 9xd cause for late filing has been shown and where the proceeding wuid not be lengthened or delayed, then these factors afght weigh in favor of t% Board entertaining this late-filed contention. However, where one is already a party to the proceeding and files a contention late and where the Staff has already addressed the matters raised in the contention in SER Supplements, albeit not to Intervenors' satisfaction, Staff does not believa much weight should be given these factors unless Intervenors have mac.t a compelling th: sing in their favor on the other three factors.
Factor (iii) The extent to which the petitioner's participation may be reasonat.ly upected to assist in developing a sound record.
Very significantly, Intervenors have not addressed how their participation might be expected to assist in developing a sound record on this contention.
Intervenors merely allege that they would participate in the evidentiary hearing on this issue.b Without more it is impossible to conclude that Intervenors will assist at all in the development of a sow 1d record. Consequently, factor (iii) weighs against the Board's entertaining Intervenors' late-filed contention.
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B Intervenors' Memorandem at 7.
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Factor (v) The extent to which petitioner's par-ticipation will broaden the issues,or delay the proceeding.
The Staff believes that the admission of a new contention will broaden the issues and lengthen the proceeding contrary to Intervenors' allegation (Intervenors' Memorandum at 7). On September 4, 1981, the Board Chairnan set forth what he believed to be a reasonable projec* ion of the schedule, albeit tentative, for the balaace of this proceeding.
(Tr.9248-9250) The Board Chairman projected a decision on low power to be made around Thanksgiving.
(Tr.9248) The issue that the Intervenors seek to raise is not covered by the subject matter of the contentions remaining to be litigated which currently are scheduled to be completed in two wn?ks once the evidentiary hearing resumes on September 21, 1981.
(This two-week schedule does not include consideration of the earthquake issue which the Board has referred to the Appeal Boards) With this tentative schedule in mind, the preparations by the parties to litigate the remaining admitted contentions would be interfered with by discovery The evidentiary and preparation of testimony on the new contentions.
hearing would be lengthened by at least the time required to take evidence on the new contention. Consequently, the conclusion is inescapable that the hearing would be lengthened were this issue to be admitted as a new contention.
Thus, it is clear that overall the factors balance against the Board's consideration of Intervenors' ! ate-filed TMI-related contention.
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n III. CONCLUSION
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For all of the reaions set forth above, the Staff believes that the
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two additional issues ra'ised by Intervenors in their filing of
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September 9, 1981, sheuld be rejected.
Respe9tfully subgitted, 2
/ { t,sh
..;aI' Donald F. Hassell Counsel for NRC Staff 4
Dated at Bethesda, Maryland, this 18th day of September,1981.
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