ML20012C676
| ML20012C676 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/14/1990 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20012C677 | List: |
| References | |
| CON-#190-10098, REF-PT21-90 OL, NUDOCS 9003230043 | |
| Download: ML20012C676 (12) | |
Text
{{#Wiki_filter:- 4 e 00CMETED USNHC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION % MAR 15 A9:11 ,-y BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL ikfA#b 0F SECRETAAv ING A f,[iivlC[, BRANCH ' In the Hotter of ) ) DocketNos.50-443_ph PUBLIC SERVICE ~ COMPANY OF ) 50-444 NEW HAMPSHIRE, d al.
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. (Seabrook Station Units 1 and 2) ) a NRC STAFF RESPONSE IN OPPOSITION TO INTERVENORS' MOTION TO REOPEN THE RECORD AND ADMIT A LATE FILED CONTENTION REGARDING DEFECTIVE ROSEMOUNT TRANSMITTERS 1 g
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tnA Charles A. Barth Counsel for NRC Staff c 4 W, March 14, 1990 , n: T,- 9003230043 900314 PDR /' DOCK 05000443 p, ;il 50} o "na $b a
e-.-4 OSS l COLhETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION % MAR 15 A9:11 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL 9dA#b4F SE(Pfl1g p BRANCH In the Matter of ) ) DocketNos.50-443_ph ..,y PUBLIC SERVICE COMPANY OF ) S0-444 NEW HAMPSHIRE, et al. ) ) (Seabrook Station, Units 1 and 2) ) A 1 NRC STAFF RESPONSE IN OPPOSITION TO INTERVENORS' MOTION TO RE0 PEN THE RECORD AND ADMIT A LATE FILED CONTENTION REGARDING DEFECTIVE ROSEMOUNT TRANSMITTERS Charles A. Barth Counsel for NRC Staff March 14, 1990 9003Pacoaa vocata POR ADOCK 0L000443 o enn o
? I! i UNITED STATES OF-AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE' ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of i 7,U-Docket Nos. 50-443 OL l PUBLIC SERVICE COMPANY OF-50-444 OL NEWHAMPSHIRE,etal. (Seabrook Station, Units 1 and 2) NRC STAFF RESPONSE IN ODPOSITION TO "INTERVENORS' MOTION l T0 REOPEN THE RECORD AND ADMIT LATE-FILED i ' CONTENT. ION REGARDING DEFECTIVE ROSEMOUNT TRANSMITTERS" t INTRODUCTION By Motion dated February 27, 1990 the Seabrook Intervenors, New England. Coalition on Nuclear Pollution, THE Massachusetts Attorney -General,andSeacoastAnti-PollutionLeague(hereafter"Intervenors") moved the Appeal Board to reopen the record and admit a late-filed contention challenging the authority of the Commission to issue a full power operating licensing for the Seabrook facility until.all Rosemount transmitters used at Seabrook have been replaced (Motion at 5). ~) 'The Appeal Board issued an Order on February 28, 1990, requiring the
- s Intervenors to file a brief addressing whether the Appeal Board had jurisdiction to entertain the Motion to Reopen. On March 7, 1990 the Intervenors filed "Intervenors' Supplemental Motion Addressing Appeal J
Board's Jurisdiction To Consider Motion To Reepen Record And Admit late-Filed Contention Regarding Defective Rosemount Transmitters" (hereinafter"Intervenors' Supplement"). 4 I
- 1 The Intervenors assert, based upon NRC Staff generated documents, that Rosemount transmitters used in the Seabrook facility are, or may become, defective. They further assert that "potentially defective-Rosemount-transmitters and components should be identified and replaced before full power operation" (Motion at 5, emphasis in original). The Intervenors argue that "the Appeal Board continues to have jurisdiction x.y lY over motions to reopen the record until the point at which it approves the L Licensing Board's authorization of a full power operating license for L l Seabrook." Intervenors' Supplement at 1 and 2. DISCUSSION A. Jurisdiction It is the Staff's position that the Appeal Board lacks jurisdiction and authority to entertain Intervenors' Motion or to grant the relief therein requested. The Seabrook operating licensing proceeding has a long and exceedingly tortuous procedural history. However. resolution of the jurisdictional question now before the Appeal Board regarding reopening the record to consider Rosemount transmitters is clear, uncomplicated, and based upon definitive NRC regulations and precedent. Such resolution is most directly achieved by an examination of the _ chronology of the relevant aspects' of the proceeding. The Licensing Board issued its Partial Initial Decision on March 25,. 1987.1/ That PID resolved on-site safety issues and authorized the Director of NRR to issue a low power testing license. That decision was l 1/ Seabrook, LBF-87-10, 25 NRC 177 (1987).
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- j appealed, The Appeal Board then affirmed the PID with regard to on-site safety issues in ALAB-875; 2/ that. decision as to onsite safety matters was not reviewed by the Commission.
Following a series of events incloding the issuance of two Comission stays and Licensing Board '(t consideration of certain remanded issues as well as a new contention, a ~10w power license was issued in May 1989.- Seabrook, CLI-89-8, 29 NRC 399 (1989). Therefore, the Licensing Board's PID, as modified by the Appeal j Board, has become final agency action. See also 10 C.F.R. 9 2.786. There is no jurisdiction in the the NRC or any of its adjudicatory boards to . entertain Intervenors' Motion To Reopen, and it should be summerily denied. Intervenors in their Motion and Supplement claim that the Appeal Board may consider their motion. On the first page of their Motion, Intervenors state, in part "... the Appeal Board continues to have jurisdiction... until... it approves the Licensing Board's authorization of a full power operating license...." (Motion at 1-2). The Intervenors continue, "The Lfcensing Boards' authorization of a full power operating license for Seabrook is now pending before the Appeal Board." Supplement at 2. However, the Commission's Memorandum and Order, CLI-90-3, issued March 1, 1990, at.3, states: All contested issues in the adjudicatory proceeding on the application for a full power license for Seabrook have now been finally resolved by the Commission, except for issues regarding emergency planning. [Footnoteomitted.) 2/ Seabrook ALAB-875, 26 NRC 251 (1987).
1 ~ ~ ~ t /. .4 Thus, it is' clear that all issues other than offsite emergency planning issues for Seabrook have been finally resolved, as of the time a L low power license was grarited. A motion to reopen the record on any such w issues cannot properly be filed at this time, nor may the record be M reopened to consider the matters raised by the Motion. Any further consideration of the issue raised by the Motion must necessarily be ~ addressed in c petition filed under 10 C.F.R. 5 2.206. M As the Intervenors recognize at 3 of their supplemental filing-L addressing this Board's jurisdictional questions, precedent plainly shows h that a motion to reopen 'a record will not lie with the Appeal Board when there is no reasonable nexus between issues remaining before the Appeal L Board and the new issues sought to be raised. Louisiana Light & Power Co. 1 j -{Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1329-30 (1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-901, 28 NRC 302, 306 (1988). This is particularly true in this L ' instance, where.not only has the Appeal Board passed on all onsite safety p '3/ In footnote 1 on page 2 of their Supplement, Intervenors state: "Moreover, 9 2.206 is an inappropriate remedy because it provides for '~ ,a the enforcement of existing licenses. In this case, there is no full power license to enforce." Again, Intervenors have inappropriately b paraphrased 10 CFR 9 2.206, which states in full: (a) Any' person may file a request to institute a pro-ceeding pursuant to 6 2.206 to modify, suspend, or revoke a license, or for such other action as may be L proper. The possession of a full power operating license is clearly not a prerequisite for a remedy under 10 CFR 6 2.206. In addition, Seabrook now holds an NRC license -- a low power testing license. Accordingly, any request for NRC action in regard to the Rosemount transmitters in the Seabrook facility must now be filed pursuant to l 10 C.F.R. 6 2.206.
_. issues, but they were also subject, as here, to final Commission action. Public Service Co. of Indiana (Marble Hill Generating Station, Units 1 and 2), ALAB-530,'9 NRC 261, 262 (1979). B. The Merits of the Motion To Reopen. ./ For purposes of argument only, the Staff will address the Motion To l Reopen as-though it.had been filed in en existing proceeding before an NRC licensing board which had jurisdiction. The Commission's regulations regarding reopening a record are set forth in 10 CFR 6 2.734. As this Appeal Board has previously stated, "the Commission expects its adjudica-tory boards to enforce section 2.734 requirements rigorously 1.e., to reject out-of-hand reopening motions that do not meet those requirements l within their four corners." Seabrook,ALAB-915,29NRC427,432(1989). l It is the Staff's view that the Motion fails to satisfy the reopening criteria of 10 CFR 6 2.734 and the late filed contentions criteria of j 10 CFR 6 2.714 and, therefore, even if the Appeal Board possessed l jurisdiction-to grant the Motion, it should be denied. Section 2.734(a)(1) requires that the motion to reopen must be timely filed, while'$ 2.714(a)(1) requires that a motion to admit a new 1 i
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contention must demonstrate good cause for failure to file on time. The 1 Intervenors claim that their motion is timely as it is based on a recent NRC Staff inspection report (January 9,1990) and a draft enforcement bulletin issued January 29, 1990. However, public information concerning this issue, which would have permitted the filing of this Motion, has been available for over a year. Thus, Supplement 6 to the Seabrook Safety Evaluation Report, NUREG-0896, I issued October 1986, stated on page 7-1 that Rosemount transmitters were l l
l used in the Seabrook facility; the Intervenors in the Seabrook proceeding. are on the service list for receipt of such documents. On February 9, 1989, Rosemount, Inc. issued a Notification under 10 CFR Part 21 that L .there were problems with Rosemount transmitters. NRC Information Notice l -(IN) 89-42 dealing with the Rosemount transmitters was issued on April 21,. 1989. M The aforesaid identified documents are all in the NRC's Public Document Room. i i It is well established that the timeliness of a motion to admit new j contentions in a proceeding is judged from the time information concerning the new matter became publicly available, not from the time the information first appeared in Staft' documents or from the time when an intervenor actually became aware of the information. See, e.g., i Duke Power Co. (Catawba Nuclear Station, Units 1 and 21, CLI-83-17, 17 NRC 1041, 1048-50 (1983). In this case, the Intervenors have been on notice since 1986 that Rosemount transmitters are used at Seabrook, and they have been on notice since February 1989 of failure problems with the transmitters. By even the most lax and charitable of standards, their j filing of the Motion now is extremely untimely, for which no good casue has been shown. Accordingly, the motion to reopen and to admit a new j contention should be denied, j 10 C.F.R. 5 2.734(a)(2). requires that a motion to reopen must address i a significant safety issue. While the Rosemont transmitters perform 1 safety functions and thus have safety significance (see page 1 of NRC ] 4/ Intervenors' Affiant, Mr. Minor, acknowledges the Part 21 Notice on page 3, footnote 1, of his Affidavit. IN 89-42, April 21,1989 is ~ attached to Mr. Minor's Affidavit.
1 l Bulletin No. 90-01, March 9, 1990, attached hereto), the Intervenors have failed to provide any reason to believe that the matter is not already being addressed satisfactortiv by the Staff. Bulletin 90-01 sets out a 1 program which identifies degradation syndromes, requests identification of Rosemount transmitters, and recommends an enhanced surveillance program. It is the view of the NRC Technical Staff that this program will properly 1ead to the identification of degrading Rosemount transmitters and will provide reasonable assurance of an adequate level of public health and sa fety. See Affidavit of Jerry L. Mauck attached hereto as Exhibit 1. Attached to the Intervenors' Motion is the Affidavit of Gregory C. Minor, who has expertise in plant instrumentation. Mr. Minor argues that going from 5% to full power will stress plant systems. (Minor Affidavit at No. 13). This may be true in that full power operati e may stress plant I systems. But the issue here is whether the 'nstalled Rosemount transmitters are reliable and whether the enhr.nced surveillance pror, ram recommended by the Staff is edequate to detMt incipfeat and actual P.osemount failures if they should occur. Mr. Minor does not ellege or l c ~ I show that there are any deficiencies in the Staff's proposed enhanced I '[ surveill nce program or in the program now in place at Seabrook. In addition, Mr. Minor does not provide any new information to the NRC Staff or for the record regarding the reliability of the Rosemount transmitters.El Paragraph 13 of Mr. Minor's Affidavit alleges that since Seabrook has only a brief history of operation, this reduces the chance of discovering }/ See Affidavit of Jerry L. Mauck.
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.l M y ; i potential failures of Rosemount transmitters. Mr. Minor also states in the.second sentence of his numbered paragraph 13 that failure of the i transmitters is not a time-dependent function of the length of operation. Some fail early and some fail late in operational life. These positions taken by Mr. Minor contradict eacn other. The Staff's enhanced surveillance program is directly intended to discover degrading transmitters if, or whenever they occur and Mr. Minor does not demonstrate that it is flawed. Third, Mr. Minor argues that Rosemount transmitters may have been sold under other labels. The NRC Draft Bulletin 90-xx recognizes this, describes the transmitter at Attachment I thereto, and identifies manufactures selling Rosemount transmitters under their own name at Attechment 2. Again, Mr. Miocr does not show or 611ege that there are deficiencies in this part of the proposed NRC identifit.ation and enhanco 1 surveillance program. The reliability of Rosemount transmitters (non-suspect lots) installed at Seabrook, their identificution and review of performanct, the enhanced surveillance program fo.~ early detection of failure, and _ replacement of failed transmitters are the very crux of the Staff's reasonable assurance of public health and safety. The Motion and Mr. Minor's affidavit do not denigrate this proposed Staff program. All that Mr. Minor recommends is to remove and replace all suspect transmitters (MinorAffidavitat7). In order to respond to their Motion to Reopen, the Staff inquired of the licensee as to its present and future program to comply with NRC Bulletin No. 90-01. The NRC technical staff has reviewed the licensee's
E l. I .g. response and has concluded that the program described by the licensee is adequate to protect the public health and safety. See Affidavit of Jerry L. Mauck attached hereto. 6 I For the foregoing reasons the Motion to Reopen does not raise a significant-safety issue and should be denied. The third requirement in 10 CFR i 2.734(a) provides that the motion to reopen a record must demonstrate that a materially different result would have been likely if the Rosemount transmitter issue had been raised earlier. The Intervenors argue that granting this Motion would materially change the situation as they would require that all Rosemount transmitters .be evaluated and defective transmitters be replaced before full power escension at Seabrook. First, the enhanced surveillance program goes to + the heart of the safety etter and there is no showing by Intervenors that the crogree in Bulletin 90-01 and now in place at Seabrcok _/ is defective i 6 in protecting the public health and safety, fecond, Rosemount tranUnitters in the non-suspect lots have not demonstratert above evera?a L failure rates. There is absolutecly no additional f !cariation provided by 1 c the Intervenors to indicate that these transmitters are not reliable. There is no need to replace these non-suspect transmitters. The Intervenors' Motions are flawed in logic as they are also flawed in law, Thus the Intervenors have not met the standards in 10 CFR i 2.7?4(a). U l 6/ See Affidavit of Jerry L. Mauck and the Licensee's response attached thereto. ~ l l: 7/ 10 C.F.R. 5 2.734(b) requires that the Motion must be accompanied by l-an Affidavit of a competent person. Intervenors have satisfied this ~ requirement. p
t ' l Further in order to prevail on a motion to reopen a record on a matter not previously in controversy a party must also satisfy the l requirements in 10 CFR i 2.714(a)(3) for the filing of new contentions. 10 CFR i 2.734(d). 10CFRi2.714(a)(1)(1)requiresgoodcausefor failure to file a contention on time. We have already shown that the motion is untimely. 10 CFR i 2.714(a)(1)(ii) requires, in regard to late filed conten-tions, that the board having jurisdiction evaluate the availability of other means whereby the petitioners' interest will be protected. Intervenors argue (Motion at O that a hearing before the Appeal Board is the only way to protect their interests. In the context of this proceeding where all safety issues have been adjudicated, the remedy of a petition to the Executive Director for Operations under 10 CFR I 2.206 is presc2tl.v avM1aMa +p intenenors. This factor weighs against admission [ of the proffered contertior.. 10 CFR 6 2.714(e) (1)(111) requires that consideration be given to the extent to wH ch the Intervenors may re n onably be expected to assist [ in duveloping a sound record on the Rosemount transmitters. An 1 examinat'.un of Mr. Minor's Affidavit does not show any new information which is not now a matter of public record and which is being considered by the Staff. The crux of the Staff's protection of public health and safety is the enhanced surveillance identification and replacement program, a program which is now being implemented at the Seabrook station. The Motion and Mr. Minor's Affidavit, which essentially relies on NRC Staff documents and positions, make no positive contribution to the
- II - Staff's program as set forth in Bulletin No. 90-01 or show why any more is necessary. This factor weighs against admitting the contention. 10 CFR 6 2.714(a)1)(iv) requires consideration of the extent to which the Intervenors' interests will be represented by existing parties. No other party has raised the issues Intervenors here present. 10 CFR $ 2.714(a)(1) requires consideration of the extent to which granting admission of the contention will broaden the issues or delay the proceeding. As safety proceedings involving Seabrook have long been concluded, it is obvious that reopening the record on this issue will broaden the issues and significantly delay the proceeding. In sum, a balancing of the five factors in 10 CFR I 2.714(a)(1) strongly weigh against the admission of the proffered contention on Rosemount transmitters. CONCLUSION For all of the above reasons, the Metion to Reopen the record and I admit a late filed contention on Rosemount transmitters should be denied. L l-Respectfully submitted, l 4 - b 4 ?ti d h L* Charles A. Barth 4 l Counsel for NRC Staff l l Dated at Rockville, Maryland this 14th day of March, 1990 l l l l l l ..}}