ML20012C696
| ML20012C696 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 03/16/1990 |
| From: | Frantz S FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#190-10101 OLA-5, NUDOCS 9003230075 | |
| Download: ML20012C696 (32) | |
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In the Matter of ) Docket NosT 30-250-01A-5
-) 50-251-OLA-5 l F14RIDA POWER &' LIGHT COMPANY )
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(Turkey Point Plant, Units 3 ) (Technical Specifications and 4) ) Replacement) ,
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D PLIPatrT'E RERPOMBE To atrewnEn PETITION TO Ini=.sva a I. Introduction on March 5, 1990, the Nuclear Energy Accountability I Project (" NEAP") and Thomas J. Saporito, Jr. (collectively referred to as
- Petitioners") filed " Petitioners Amended Petition for Intervention and Brief in Support Thereof" (" Amended Petition") with; respect to certain proposed amendments to the i operating licenses for Turkey Point Nucleta: Power Plants, Units 3 and 4, noticed in 54 Fed. Reg. 50295 (December 5, 1989). Florida Power & Light Company ("FPL" or " Applicant") hereby files this response in opposition to the Amended Petition.
As is demonstrated below, the Petitioners' request for intervention does not satisfy the applicable standards for isuch a request. Accordingly, the Amended Petition should be denied.
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The purpose of this section is to provide the Licensing ;
Board with a general description of the amendments being proposed by FPL in order to enable the Board to place the' Amended Petition in its proper contert. Applicant's objections to the Amended Petition are discussed in a subsequent section.
The proposed amendments would replace the current custom Technical Specifications for the Turkey Point nuclear units (incorporated in the operating licenses issued in 1972 and 1973 and subsequently amended from time to time) with a set of technical specifications based on the Westinghouse Standard '
Technical Specifications. The. changes would be made in accordance "with the NRC and industry initiative to standardise i
and improve" technical specifications for nuclear plants. Saa 54 l
Fed. Reg. at 50295. As summarized in an Interim Policy Statement issued by the NRC in 1987, 1/ it is the Commission's policy to encourage licensees:
to implement a voluntary program to update their Technical Specifications to be ,
consistent with revised vendor-specific Standard Technical Specifications (STS) to be developed by the industry based on these
[ objective) criteria and subject to NRC Staff approval....The Policy Statement is expected to produce an improvement in the safety of nuclear power p.'.asts through the development '
of more operatoz-criented Technical Specifications Bases, reduced action l
1/
- Proposed Policy Statement on Technical Specification Improvements for Nuclear Power Reactors," 52 Fed. Reg. 3788 (February 6, 1987)
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statement-induced plant transients, and more efficient use of NRC and industry resources.
, The proposed Standard Technical Specifications reflect '
more than three years of effort by FPL and the NRC Staff to implement this policy for Turkey Point. They consist of hundreds of pages of requirements governing operation of' Turkey Point and contain hundreds'of modifications of the saisting Technical Specifications. Many of the proposed changes in the Technical
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Specifications would be editorial in nature, a.g., changes to conform with the format of the Westinghouse Standard Technical Specifications. 2/ Other proposed changes would impose new or more stringent requirements on the operation of Turkey Point 1/ l by, for example, requiring FPL to conduct additional or more frequent surveillances of components 1/ or to comply with more !
2/ For example, in the current . Technical Specifications, the Limiting Conditions for Operation ("LCOs") are in a different section (Section 3) from the corresponding surveillance requirements (Section 4). In the revised Technical Specifications, Sections 3 and 4 would be ccabined so that corresponding LCOs and surveillance requirements would be in the same subsection. ,
2/ FPL's application for the revised Technical Specifications includes a safety analyses for each subsection of the revised Technical Specifications. SAA Letter L-89-201, dated June 5, 1989, from C.O. Woody (FPL) to NRC, Attachment II, Appendix A. For each subsection, Paragraph A.2.b. of the safety analysis usually identifies the new or more restrictive requirements.
1/ For typical examples of modifications which add new surveillances or require more frequent surveillances, see revised Technical Specifications No. 3/4.1.1.3,3/4.1.1.4, 3/4.4.3, 3/4.6.1.1 and 3/4.7.8.2.
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.,4 restrictive action statements 1/ or limiting condition of "
, operation 1/. Finally, in some cases, the proposed changes would relax existing requirements or relocate existing requirements -
from the Technical Specifications tn other controlled documents. 2/ i As is described in greater detai3 in Gection IV below, the great ,
.i majority of Petitioners' 56 contentions constitute objections to such alleged relaxations. 1/ l Overall, the revised Technical Specifications would represent an improvement in safety in comparison to the' current Technical Specifications for Turkey Point. The current Technical i
specifications are.largely based on the information and technology available at the time the units were licensed. There were, of course, far fewer reactors then in service. With the increased number of reactors going into operation during the
- following years, greater knowledge and experience in the control, L
l 5/ For typical examples of modifications which add more i see revised Technical restrictive Specifications action No.statements, 3/4.1,2.4,3 /4.1.3.1, 3/4.1.3.5, 3/4.2.3 '
and 3/4.7.1.4 ,
1/ For typical exsaples of modifications to limiting conditions '
of operations which make existing standards more restrictive, see revised Technical-Specifications No.
3/4.5.1, 3/4.7.5, 3/4.8.2.1 and 3/4.9.2 1/ For each subsection of the revised Technical Specifications, Paragraph A.2.c of the safety analysis usually identifies the proposed relaxations. The revised Technical l Specifications would not require hardware changes.
Additionally, the revised Technical Specifications would L
reflect the current Turkey Point plant design and analytical l basis.
Contentions 5 to 24 and 26 to 56.
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. i operation and surveillance of nuclear plants was developed. That experience and knowledge has been incorporated in the standard Technical specifications which form the basis for the revised .
Technical specifications for Turkey Point. The revised Technical 1 specifications would adopt standard definitions and format, j thereby facilitating uniform understanding of requirements. On :
the other hand, as indicated above, the revised Technical 4
Specifications would also adopt some " relaxations". These relaxations reflect industry experience indicating that.some surveillances and action statements are unnecessarily restrictive .
and, for example, do not afford enough time for appropriate analyais before taking corrective action, or unnecessarily !
require interruption of steady state operations. t In summary, the revised Technical Specifications would in general impose more strict accountability standards, increased surveillances and more stringent action statements and mode change requirements. Consequently, there are many new l- restrictive requirements in the revised Technical Specifications.
1 FPL believes that the revised Technical Specifications would ,
L represent a major improvement in overall plant safety and reliability.
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III. Eatitimmara* atanAlam The Applicant does not.co.ntest Petitioners' standing to intervene.3/ i IV. Petitlanaes Mawa Mat submitted Ewan On 6 cantantin.
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Under 10 CFR $ 2.714 (b)(1), a petitioner is required j to provide a list of contentions prior to the prehearing ,
4 conference on the petition to intervene. This section further i states that "(a) petitioner who fails to file a supplement that '
satisfies the requirements of paragraph (b)(2) of this section l with respect to at least one contention will not be permitted to !
participate as a party." 10 CFR $2.714(b)(2) sets forth the l -standards for an admissible contention. The provision states:
Each contention must censist of a specific
~ i statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide the following information with respect to each contentions (i) A brief explanation of the bases of the contention.
(ii) A concise statement of the alleged fact or expert opinion which support the contention :
and on which the petitioner intends to rely in proving the contention at the hearing, 1/ Petitioners have made a number of assertions and contentions in support of their claim to standing. FPL's position on Petitioners' standing is based upo# Mr. Saporito's employment at the-ATI Career Training Center in Miami, and does not constitute agreement that any of the other claimed bases do establish standing. -
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- L i together with references to those specific :
sources and documents of which the petitioner ;
is aware and on which the petitioner intends to rely to establish those facts or expert j opinion. .
(iii) sufficient information (which may include t information pursuant to paragraphs >(b)(2)(1) -
l, of this sec.
and (ii) dispute genuine exists tion)withtothe show that a on applicant a material issue of law or fact. This
{ showing must include referencer.to the npecific portions of the application .
(including the applicant's envircnmental -
l report and safety report) that the !
petitioner disputes and the supporting reasons for each dispute, or, if the
' petitioner believes that the application '
! fails to contain information en a relevant l l matter as required by law, the identification of each failure and the supporting reasens for the petitioner's belief.- On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the ,
applicant's environmental report. The :
petitioner can amend those contentions or file new contentions 3.f there are data or conclusions in the NRC draft or final environmental impact statement, environmental -
assessment, or any supplements relating -
thereto, that differ significantly from the ;
data or conclusions in the applicant's '
document.
Additionally, 10 CFR $2.714(d)(2) states that a i licensing board shall:
refuse to admit a contention ifa (1) The contention and supporting -
material fail to satisfy the requirements of paragraph (b)(2) of this section; or (ii) The contention, if proven, would be -
of no ceasequence in the proceeding because it would not entitle ,
petitioner to relief.
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I These provisions in 10 CFR $2.714(b)(2) and '
$2.714(d)(2) were only recently added to the Commission's rulos of practice. Ana 54 Fed. Reg. 33168 (August 11, 1989). As -
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, stated by the Commission, the~ purpose of this section is to l
- raise the threshold for tho' admission of contentions to require I the proponent of the contention to supply information showing the '
existence of a genuine dispute with the applicant on an issue of '
law cr fact." Id.
In its statement of Considerations accompanying the new rule, the Commission provided guidance on the proper interpretation of the rule. The guidance included the ic11owings t "In addition te providing a statement of facts and sources, the new rule will also require intervenors to submit with their list of contentions sufficient information (which may include the'known significant facts described above) to show that a genuine disputa exists between the petitioner and the applicant or the licensee on a material issue of law or fact. This t
will reguire the intervenor to read the M rtinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicant's position and the ,
petitioner's opposing view." $4 Fed. Reg. at 33170.
"The revised rule does, however, overturn the '
holdings of Mimaissippi power and Light ca. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 l
AEC 423, 425-26 (1973) and Houston Liahtina and
- Power ca. (Allens Creek Nuclear Generating ~
l Station, Unit 1), ALAB-590, 11 NRC 542, 546-49 (1980). The Appeal Board found in those cases that the curront language of 10 CFR $2.714 does not require a petitioner to describo-facts which would be offered in support of a proposed
- contention. The new rule will require that a petitioner include in its submission some alleged
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fact or facts in support of its position sufficient to indicate that a genuine issue of
, material fact or law exists." Id. at 33170.
. ._. the rule will require that before a contention is admitted the intervenor have some factual basis for its position and that there e exists a genuine dispute between it and the applicant. It is true that this will preclude a contention from being admitted where an intervenor has no facts to support its position and where the intervenor contemplates using discove n or cross-examination as a fishing expedition which might produce relevant supporting facts. The Commission does not believe this is an appropriate use of discovery or cross-examination. aDI v. A+ amin Energy comminaion, 502 F.2d 424, 429 (DC Cir.
.1974). The Commission believes it is a reasonable -
requirement that an intervenor be able to identify some facts at the time it proposes a contention to indicate that a dispute exists between it and the applicant on a material issue." Id. at 33171. *
"The Commission believes it to be a reasonable requirement that before a person or organization ir admitted to the proceeding it read the portions of the application (including the applicant's safety and environmental reports) that address the issues that are of concern to it and demonstrate that a dispute exists between it and the applicant on a material issue of fact or law." Id. at 33171.
- The rew irement in 52.714(d)(2)(iii)) above was intended to parallel [the atandard for dismissing a clain under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The intent of Rule 12(b)(6) is to permit dismissal of a claim where the plaintiff would be entitled to no relief under any set of facts which could be proved in support of his clain." Id. at 33171.
The standards in the new rule are therefore more stringent than the Commission's previous standards for an admissible contention, which only required that "the basis for l
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each contention [be) set forth with reasonable specificity." Sea l 10 CFR's2.714(b) (1989). These new standards should, moreover, ;
be applied in the context of the especially strict standards which govern operating license amendment proceedings where a
{' hearing is not mandatory. In a proceeding where a hearing'is not
. mandatory, there is an "especially strong reason" why a
" licensing board should take the utmost care to satisfy itself fully that there is at least one contention advanced in the petition which, on its face, raises an issue clearly open to adjudication in'the proceeding.". cincinnati can s ninetrie ca.
(William H. Eimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 12 (1976), quoting culf staten utilition co. (River Band Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974).
- 3. Petitioners' Proposed contentiana De Met satisfw the ,
' Standards for an admfaalble contantion f
- 1. namerlation of petitlenars' prenamed contanti...
The Amended Petition contains 56 proposed contentions. \
With one exception (Proposed Contention 25), each of the proposed contentions has essentially the same format, which consists of L the following:
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g A section labelled " Statement of the issue of: law or fact to be raised or controverted" consisting of the following three subparts:
Paragraph (a), which states that the amendments would authorize replacement of the n
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... a f 4 custom Teclaical: Specifications (" CTS") with
, a set of revised Technical Speifications
("RTS") based on the Westinghouse Standard l Technical Specifications ("STS").
Paragraph (b), which alleges that the~
amendments will cause the plant to be ,
operated unsafely because the relaxed safety i marginarin the.RTS would result in a' release' of radiation and fission products into the >
environment. - r Paragraph (c), which varies in detail with L
each-proposed contention, but generally only L refers to a specific alleged " relaxation" or- '
environmental effect.
l A section labelled "Brief explanation of the basis l-l.
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- of Contintion," which essentially paraphrases the l
first section-discussed above and refers to a '
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relaxation of safety margins or environmental y effects without providing any new facts or information.
l A section labelled " Concise statement of the1 alleged facts or export opinion which the-Petitioner. intends to rely on in proving the. ~
contention at the hearing," consisting of the folicwing three subparts:- .
Paragraph (a), which asserts.that any release
.of radiation and fission products from a nuclear power plant adversely affects human m
life and the environment'and asserts that the
, relaxed safety margins in the RTS will provide a means and method for such a release.
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-. _ Paragraph-(b), which states.that Petitioners -
will rely on the expert opinion of Thomas J.
Saporito,'Jr. in support of the contention.
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- Paragraph (c), which states that Petitioners will relycon cross-examination of Applicant's-
- witnesses. ,
- A section labelled " References to those specific documents of which the Petitioner intends to rely ,
to establish those facts cne expert opinion.'
Typically, this section lists the following ,
documents: CTS, RTS, Applicant's-Safety Evaluation, Updated Final Safety Analysis Report
("UFSAR"), 48 Fed. Reg. at 14870, and "[o]ther documents which Petitioners may find through further research or which Petitioners may obtain through discovery in these proceedings."
- 2. The Petitioners' Pranaamd conia.iio.. 1. om.a.a1 Do Mot' Provide the Information'Ramulead by the Commiazion's Rules For several reasons, the Petitioners' proposed content.ons, following the format described above, do-not supply
.. sufficient information to comply with the Commission's standards
' for an admiss'ible contention.1Q/
IA/; Petitioners were' on notice- that they would be required to
, ' comply with these standards, since the standards were summarized in the notice of this proceeding (54 Fed. Reg. 50295) and in-the Board's Memorandum and Order (February 5, 1990), pp. 5-6 n.7.
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...- 3 First, contrary to 10'CFR $2.714(b)(2)(1), Petitioners' proposed contentions do not contain any bases. Although,.
'following the form of the new rules, each proposed contention includes a section entitled "Brief explanation of the basis of contention,." this,section is not in any sense an-" explanation" but rather a paraphrase of the proposed contention-without any l
further support by way of fact or argument.
Second, contrary to 10 CFR $2.714(b)(2)(ii), the proposed contentions do not contain a concise statement of the alleged .focts or expert opinion which support the proposad contention. Again, following the form of the new rules, each proposed contention includes a section entitled " Concise statement of the alleged facts or expert opinion...," but the section_contains no substance, 1 L., no facts or expert opinions are presented but on1y' the bald conclusion,. absent any support, that the relaxed margins in the revised Technical Specifications-would provide a "means and method for" a release of radioactivity. 11/'
11/ In this-regard, the Amended Petition states that.the Petitioners intend'to rely on the expert opinion of Thomas
'J. Saporito, Jr. to support their proposed contentions.
However, the Amended Petition does not even purport to E
identify the substance or: subject of Mr. Saporitofa
, opinions. Therefore, even if kr. Saporito's qualifications ~
as an expert were established, the statement would not make p the proposed contention admissible. Furthermore, E
Applicant's-note that Mr. Saporito's experience and education technician.is as an Instrumentation *and Control ("IEC")
This may, for example, qualify him to perform a
- calibration or test required by a procedure specified in a technical specification. However, it would not qualify him i.
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Third, the Amended Petition states that Petitioners will rely upon cross-examination and documents obtained through discovery to establish its facts and expert opinion. However,,as the Commission-bas stated in 54 Fed. Reg. at 33171, "it does not believe that this ia.an appropriate use of discovery or cross-examination," and a petitioner must provide a statement of facts and: sources at the time it. proposes.a contention.
Finally, as support for their proposed contentions, Petitioners reference.several documents,-some of which contain thousands of pages. However, the Amended Petition does not identify the particular information in these-documents that allegedly supports the proposed contentions and does not identify any pages or sections in these documents that might be relevant.
As another licensing board has stated, "non-selective-incorporation" of thousands of pages of material " works to
' frustrate the requirement in $2.714" that a petitioner specify the basis-for his proposed contentions. Tannammaa vallav 11/(... continued) to analyse and make expert judgements concerning the safety related bases for that specification. He does not appear to have any expertise in performing, and does not appear to be qualified to perform, safety evaluations of the adequacy of the type of technical specifications limits that are the subject of' Petitioners' proposed contentions.. Therefore, Petitioners ~have not provided a sufficient-justification for offering any relevant " expert opinion" by Mr. Saporito. If the Board should consider it appropriate to reach the question.whether Er, Saporito is a qualified expert, a y.mir dira examination or similar evidentiary inquiry into his qualifications would be required.
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Authority (Browns Ferry Nuclear Plant, Units 1 and 2), LBP 10, 3 NRC 209,-216 (1976). ,_
In summary, the proposed contentions do not comply with several of the requirements for information contained in,10 CFR -
$2.714(b)(2). Accordingly, khe proposed contentions should be denied and the Amended Petition should be dismissed.
- 3. Bineumnion of the Drenamed cantantiana The Amended Petition essentially contains several types of proposed contentions. Proposed Contentions 1 and 2 relate to environmental. issues; Proposed Contentions 3 and 4 involve editorial changes; Proposed Contentions 5 to 24 and 26 to 56
-relate-to relaxation.of requirements; and Proposad Contention 25 relates to the Pressure / Temperature limite for Turkey Point and attempts to relitigate matters recently decided by another Licensing Board:and now pending before the Atomic Safety and Licensing Appeal Board. Each of these proposed contentions or types of proposed contentions will be discussed separately below.
- a. Prenenad contentions 1 and 2 Proposed Contentions 1 and 2 allege that the license amendments sought by FPL are major Federal actions significantly affecting the quality of the human environment. As a result,-in Proposed Contentton 1, Petitioners contend that the NRC must issue an Environmental Impact Statement ("EIS"), and in Proposed Contention-2, Petitioners contend that the NRC must issue an 1
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Environmental Assessment ("EA") prior to issuance of the
.. amendants.
L In support of Proposed Contentions 1 and 2, the Amended c
1 Petition, pp. 25 and 27, states that:
any release of radiation and fission products from a nuclear power 7 plant adversely affect '
human ~1ife.and the environment as a whole and .
l- that the relaxed safety margins evidenced in the Applicants (RTS) provide the means and method for such a release of radiation and fission products into the envircament.
b The Amended Petition does not identify any facts or o
information in support of Petitioners' claim that the amendments are a amajor Federal action." Similarly, the Amended Petition does not it'entify any facts or information-which indicate that the environment. impacts or risks associated with operation using
$ revised. Technical Specifications would be significantly greater or different than the environmental impacts associated with operation using.the current Technical Specifications. 12/
In short, neither Proposed Contention i nor Proposed-Contention 2 contains any basis for Petitioners' claim that the amendments' represent a major Federal action significantly ;
impacting the environment. In the absence of a basis for such a 1 claim, the Proposed Contentions 1 and 2: should be denied. Saa, .
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12/ -As discussed in Section II above, the revised Technical Specifications represent an overall improvement over the current' Technical Specifications. Therefore, if anything, the overall environmental risk posed by the revised 1,.
' Technical Specifications should be less than the risk posed
, by the current Techniesl Specifications.
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}df s e , Flori g Pawar & Lisht ca. (Turkey Point Nuclear Generating
- Plant, Units 3-and 4), LBP-85-36, 22 NRC 590, 596-97 (1985).
Additionally, so far as Proposed Contention 2 ie .
- concerned,'the revised Technical Specifications would appear u qualify for a~ categorical exclusion from issuance of an EIS or an-EA. Specifically, 10 CFR $51.22(c)(9) provides a categorical-exclusion' fore Issuance of an amendment to a permit or license for a reactor pursuant to Part 50 of 4
this-chapter which changes a requirement with .
respect to installation or use of a facility component located within the restricted area, as defined in Part 20 of this chapter, or which changes an inspection or a. surveillance requirement, provided that (1) the amendment involves no significant hasarde consideration, (ii) there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite, and (iii) there is no significant_ increase in. individual or cumulative ~ occupational radiation exposure.
Assuming that the NRC Staff will find that the amendments involve r.o significant hasards consideration, the amendments would satisfy each of the criteria in 10 CFR $51.22(c)(9) for a categorical exclusion. In the event that no such finding is made,; presumably _the NRC Staff will issue an' Environmental Assessment.
- b. Pronomad cantantiana 1 and (
Proposed Contentions 3 and 4 both involve editorial changes in the Technical Specifications, and do not relate to any proposed change in the substantive requirements or restrictions R
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. .y in the Technical Specifications.- In each case, Petitioners '
.either explicitly or implicitly recognise this fact. As a
. result, neither proposed contention offers anything to' litigate, '
-and both should be rejected. -
I Proposed Contention 3 alleges that the revised ,
1 Technical Specifications would relax certain safety margins '
because they would omit certain definitions in the definition section of the current Technical Specifications. .However, as is discussed in FPL's application for the revised Technical l Specifications 13/ and as acknowledged in the Amended Petition L
11/, in each case where an omitted definition contains a restriction, the restriction is included in another section of the revised Technical Specificaticits. Thus, the deletion of the
- definitions is purely an editorial change of no substance.
L Therefore, under 10 CFR.52.714(b)(2)(iii) and $2.714(d)(2)(ii),
this proposed contention is not admissible because it does not l
raise any genuine dispute over a material issue of fact or law and, even if true, would not entitle Petitioners to any relief.
Similarly, Proposed Contention 4 claims that the revised: Technical Specifications would-relax certain safety margins in the current Technical Specifications because the definitions of the frequency codes for the table identifying the 13/ -Letter L-89-201, dated June 5, 1989, from C.O. Woody (FPL) to NRC, Attachment II, Appendix A,, App. A 1-2, 11/ San Amended Petition, p. 29, which states "[t]he proposed changes described-in Contention 3 represent definitions of terms which are defined in other places in the RTS...."
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Reactor Trip System Instrumentation Surveillance Requirements
- would be relocated to a section of the revised Technica)
Specifications that is different than the section in which it is contained in the current' Technical Specifications.. The Amended l' : Petition does not allege that the relevant provisions in the l- 2 revised Technical Specifications are any less restrictive than the current Technical Specifications. In fact, this proposed change in the location of the frequancy codes is purely an editorial change. Therefore, under-10 CFR $2.714(b)(2)(iii) and -
$2.714(d)(2)(11), Proposed Contention 4 is inadmissible.-
Petitioners attempt to escape this conclusion by alleging that<the separation of the definitions of the frequency l codes from the table defining the surveillance frequencies would increase the probability of operator error because operators would have to refer back to the definitions in order to be able p to understand the surveillance frequencies. Petitioners provide no ba. sis-for this claim. Furthermore, such a claim is specious
- on its face, especially given the nature of the table identifying
- the surveillance frequencies. H / Therefore, Proposed Contention M / In the revised Technical Specifications, the surveillance h frequency table uses letters to designate the frequencies of surveillance. These letters are defined in the definitions O section of the' revised Technical Specifications.
L _Specifically, frequency code letters such a S (semi-daily),
.D (daily), W (weekly), M (monthly), Q (quarter-annually),
etc. are defined on page 1-7 of thd revised Technical L Specifications. Thus, there is a readily apparent correlation between the frequency codes and the frequencies, cand the probability of an operator misinterpreting the surveillance frequency table is speculative at best.
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~4 should also be rejected under 10 CFR $2.714(b)(2)(1) for lack ,
of a basis.
L Finally, even if it is assumed arguendo that ,
L Petitioners are correct in contending that the revised Technical
' Specifications rould increase the probability of operator error, s
V L Proposed Contention 4 would still be inadmissible under 10 CFR L
52.714(d)(2)(ii) because Petitioners would not be entitled to any
~
relief. As discussed below in more detail, a mere increase in
- probability or a relaxation in requirements is not par sa .
unacceptable. Since Petitioners have provided no basis for believing that this propcsed change would violate NRC regulations or pose an undue risk to the public health and safety, Proposed Contention 4 should be rejected.
- c. Pronosed contentions 5 to 24 and 25 to EE Proposed Contentions 5 to 24 and 26 to'56 allege.that various provisions of the revised Tschnical Specifications would relax certain of the safety margins in the current Technical Specifications. In particular, Paragraph (c) of the section entitled " Statement of the issue of law or fact to be raised or controverted" within each of these proposed contentions refers to a specific provision of the revised Technical Specifications and describes how this provision would represent a relaxation of certain requirements in the current Technical Specifications.
The Petitioners have not specifically identified the bases for these proposed contentions. However, a comparison '
-$LE__-.l-._-_a_-__--__-- - -
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between the language in FPL's application for the revised Technical Specifications 16/ and the language in these proposed contentions demonstrates that the language in.the proposed- .
contentions is either a direct quote from'or a close paraphrase of the language in FPL's safety analysis in support of the apN ication. H /' In short, these proposed contentions represent ,
nothing more than copies of statements made in the application for the revised Technical Specifications, wherein FPL stated that cartain nrovimiens in the Technical Enmelfications would ha relaxed. M /
16/ Letter L-89-201, dated June 5, 1989, from C.O. Woody (FPL) to NRC.
l
- n/ IL., at Attachment II, Appendix A. .
1R[ Proposed Contentions 7, 8, 21, 34, and 54 ic'Ontify. certain changes proposed in the revised Technical Specifications, and classifies these changes as " relaxations." Although Applicant agrees that the changes in question are being proposed, it disagrees-that the changes are relaxations. As discussed.at pages App. A 2-1 and 2-2, App. A 2-3 to 2-4, App. A 3/4'l-42 to 1-43, App. A 3/4 4-18 and 4-19, and App.
A 6-29 to 6-41, of Appendix A~to Attachment II to FPL letter L-89-201 dated June 5, 1989, the changes 11n question are more restrictive. For example:
L
- Proposed. Contention 7 alleges that the revine L
Technical Specifications would be less~restrictAve because they do not include requirements goveraing TWO and.ONE Loop operation and natural circulation and because they permit one hour for mode reduction in the ACTION statement. However, these provisions are actually more restrictive, because operation with less than three. loops would not be permitted in the revised Technical Specifications and because the. current Technical Specifications do not contain any ACTION
+
statement for mode reduction. Id. at App. A 2-1 and 2-2.
(continued...)
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g, 1R/(...*- continued) H Propoed Contention 8 alleges that the revised
-Technical Specifications would be 1ess restrictive ,
because they include an ACTION statement which would:
require plant shutdown within 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br />;rather immediate plant shutdown if the safety limit on the reactor .
coolant system pressure ~is not satisfied.
However, this provision is actually more restrictive. As is. 1
-evident from section 2.2 of the current Technical s
Specifications, there.is no ACTION statement requiring I shutdown'within any specified time for failure to satisfy this safety limit, and the revised Techntcal i Specifications would be more restrictive by adding such L a requirement.
Propsed Contention 21 alleges -that the revised:
Techical Specifications would be less restrictive than the current Technical Specifications because the L . proposed method for measuring control rod drop time u
would increase =the measured drop time. .Obviously, the proposed requirement would be more restrictive, because
.an increase'in the measured drop time would make'it more difficult to satisfy the drop time limits (which would be unchanged).
H '
Proposed Contention 34 alleges that the revised
). Technical Specifications would bs less restrictive because they. include an ACTION' statement which would allow.15 minutes to make an inoperable valve operable, whereas the current Technical' Specifications would ,
require immediate shutdown. However,zthis provision is actually more restrictive. As-is evident from Section .
D 3.1.1.c.2 of:the current Technical Specifications, '
there is no current ACTION statement requiring shutdown within any specified time for an inoperable valve, and the revised Technical Specifications-would be more restrictive by adding such a requirement. .2d. at App.
A 3/4 4-18 and 4-19.
L
- - Proposed Contention 54 alleges that the revised Technical Specifications would be less restrictive-because they.specify that high radiation intensity is p " '
.to be measured at 18 inches from the radiation source and that personnel escorted by Health Physics personnel may enter-a High Radiation area without a Radiation Work Permit (RWP). However, the current Technical Specifications do not contain any requirements
, governing these matters; therefore, these proposed (continued...)
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7
., Given the nature'of these proposed contentions, they are not admissible. First, since the proposed contentions simply
- repeat the language in FPL's application, and since FPL agrees -
that the examples cited in the proposed c'ntentions o represent relaxations in some of the requirements in the current Technical specifications,.the proposed contentions do not dispute anything in FPL's application for the revlsed Technical $pecifications and do not offer anything to litigate. Accordingly, these proposed contentions do not satisfy the provisions of 10 CFR
$2.714(b)(2)(iii), which requires a contention to include sufficient information "to show that a genuine disputa exists within the applicant.on a material issue of law or fact."
Even if this infirmity did not exist, these proposed contentions would still be inadmissible. The gravamen of Petitioners' proposed contentions is that FPL is relaxing certain requirements in :its revised Technical Specifications. That is truer nevertheless Petitioners are not entitled to any relief.
The fact that certain requirements would be relaxed or that
- certain probabilities may be increased does not mean that the IR/(... continued) changes are actually more restrictive than the~ current Technical Specifications. Id. at App. A 6-39 to 6-40.
In short, there is no basis for Petitioners', contentions that these proposed changes represent relaxations, and the Petitioners have not offered an*/ such basis. In any event,
,as is described below, even if it is. assumed arguenda that Petitioners are correct in contending that these changes are relaxations, the proposed contentions would still be
' inadmissible because they would not entitle Petitioners to l any relief.
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revised. requirements would be unacceptable. Petitioners have not alleged, and have not provided any bases for an allegation, that any proposed relaxation would v!.olate arq NRC regulation or requirement., Additionally, FPL has performed an extensive safety I analysis for these proposed yelaxations and has demonstrated that
- there is reasonable assurance that the public health and safety !
would not be endangered by these relaxations. D J Petitioners .
have not identified or even alleged that there is any defect in FPL's safety analysis, and they have not otherwise provided any basis-for a claim that the relaxations would pose an undue risk to the public health and safety. Therefore, these proposed contentions are inadmissible under 10 CFR $2.714(d)(2)(ii), which
. states that a licensing board shall refuse to admit a proposed contention in' situations where, if proven, the proposed contention "would be of no consequence in the proceeding because.
- it would not entitle petitioner to relief." 2A/
In summary, Proposed Contentions 5 to 24-and 26 to 56
- are inadmissible because they do not raise any genuine dispute with the Applicant's safety analysis and because, even if true, L ,
n / xd.-
2Q/' The Petitioners may be under the mistaken impression that. '
the requirements in the Technical Specifications for a nuclear plant are the absolute minimum. requirements that are
'. necessary to protect the public health and safety. However, the Technical Specifications for ngelear power plants, including Turkey Point, typically centain large margins of safety. Therefore, it is possible to make certain relaxations in the Technical Specifications without posing any undue risk to the public health and safety.
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they would not entitle Petitioners to any relief. Consequently, these proposed contentions should be rejected. .
d.- Franamed cantantina 2R Proposed Contention 25 relates to the-Pressure / Temperature ("P/T") limits for Turkey Point. These limits restrict the permissible temperature and pressure of the reactor coolant system ("RCS") during normal operating conditions (including heatup, cooldown, and pressure testing).
4 Proposed Contention 25 raises several allegations regarding the' adequacy of the P/T limits in the revised Technical Specifications for Turkey Point. 21/ However, the P/T limits in the revised Technical Specifications for Turkey Point are
. substantively identical to the P/T limits in the current.
Technica1' Specifications.for Turkey Point. 22/ Therefore, Petitioners are not complaining about any changes that FPL is 21/ Eaa' Amended Petition, pp. 105-114.
22/ As explained on page App. A 3/4 4-41 of FPL's- application for.the revised Technical Specifications (Letter L-89-201, dated June.5, 1989), the revised P/T' limits would be more complete than the current Technical Specifications, in that
- the-revision adds a requirement for determining the RCS'
-temperature and pressure once per 30 minutes during heatup,
- " ~ cooldown, or pressure testing,-and the revision clearly states;the schedule for removal and examination of reactor vessel material specimens. Additionally, pages A 3/4 4-41
' and 4-42 explain that the revised Technical Specifications delete Figure 3.1-2 because it is obsolete. Figure 3.1-2, entitled " Radiation Induced Increase in Transition Tamparature for A302 Steel," does not provide any limits on opexation, is not> referenced in any current Technical Specifications, and was not used in deriving the current or revised P/T limits for Turkey Point.
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proposing to make in its Technical Specifications; instead, the issues identified by the Petitioners pertain to the current l' Technical Specifications for Turkey Point.
- Additionally, with an irrelevant exception discussed in
$ the footnote below, H / all 'of the arguments that Petitioners are
(
E making in Proposed contention 25 were made by Petitioners in an i
. untimely petition to intervene with respect to a previous amendment of the P/T limits for Turkey Point. 21/ The Licensing Board in that proceeding denied Petitioners' untimely petition p and upheld, against the challenge of another party who made arguments similar to those being made here, the issuance of the $
U license amendments for the P/T limits. 25/ Thus,; Petitioners are ;
e M / 'The Amended Petition, pp. 104 and 107, alleges that the revised Technical Specifications would relax the requirement to use Figure 3.1-2.to predict'the increase in transition m ~
temperature due to irradiation. The requirement to which the Petitioners are referring is not in the current .
l Technical Specifications. Although this requirement was in L:
the original Technical Specifications, it was deleted in an amendment to the Technical Specifications-issued on April '
20, 1977. This amendment inadvertently neglected to delete Figure 3.1-2. Since Figure 3.1-2 is. obsolete, imposes:no
!: current requirements, and is not referenced in the current
! Technical Specifications, its deletion would not result in any substantive change.
21/ In the matter of riorida Power s tight co.-(Turkey Point Plant, Units 3 and'4), Docket Nos. 50-250-OLA-4 and 50-251-l OLA-4-(Pressure Temperature Limits). Saa " Clarification'of f
' Contentions and Answer to Licensee's Response In Opposition to NEAP /Saporito Petition For' Leave to Intervene" (November 16,.1989); " Petition For Leave to Intervene" (October 27, L: 1989).
25/ ggg Florida Power,& Light co. (Turkey Point Plant, Units 3
- and 4), LBP-90-4, slip op. (January 16, 1990) and LBP-90-5, slip op. (January 16, 1990). Both of these decisions are p
(continued...)
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attempting to evade the consequences of their tardiness by rearguing the same concerns in this proceeding. They may not do that. In any event, as discussed below, the issues raised by -
Proposedcontention25areouEsidethescopeofthisproceeding.
The scope of issues that a petitioner may raise in an operating license amendment proceeding are more narrow and limited than the scope of issues that may be raised in construction permit or operating license proceedings. For example, in license amendment proceedings, only those issues -
which fall within the scope of issues set out in the Federal Register notice.of opportunity for hearing may be admitted for ,
litigation. commnnwealth edimon co. (Elon Station, Units 1 and 2), ALAB-616, 12 NRC 419, 428 (1980); Portland canaemi Elmetric Co.-(Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979); Public servica'cc. of indiana (Marble Hill Nuclear
- Generating' Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71
-(1976);' Florida Power & Llaht co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-66-10A, 27 NRC 452, 455 (1988). Unless an 1* sue is fairly raised by the amendment or has a nexus to the amendment, it is not admissible. co==nnvenith ndimon ca. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 624 (1981);
vermont Yankee Nuclear Power Corn. (Vermont Yankee Nuclear Power 25/(... continued) being appealed by either the Petitioners or the intervenors in that proceeding.
1
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8tation), E AB-245, S'ABC 873,.975 (1974); consumara Power ca.
! (Big Rock. Point Nuclear Plant), LBP-80-4, 11 NRC 117, 125 (198,0).
l Issues in a license amendment proceeding may not be-l used'as'a-vehicle for reconsideration of issues which were ,
previously considered by the NRC in earlier license proceedings, absent any impact of the amor.dment on the issues in question.
. Sea Florida Power & Lisht co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 466-67 (1988). As the licensing board stated in an amendment proceeding authorising contiinued operation of a plant pending correction of certain design deficiencies: -
We are not.authorised to examine matters that were explored at the construction permit or
. operating license stages, nor can we expand the issues beyond those related to the design 1
deficiencies that resulted in the notice of hearing which described the issues we are empowered to consider.
Portland Canaraf Electric co. (Trojan Nuclear Plant), LBP-78-40,
=
8 NRC 717, 745 (1978) (footnote omitted), aff'd, ALAB-534,-9 NRC 287 (1979). Numerous other cases have also applied the principle i
that an amendment proceeding is not un appropriate forum for reexamining previous NRC' determinations that are not affected by the amendment. San, a A , Florida Power L'Linht co. (Turkey Point Plant, Units 3 and 4), LBP-90-4, slip op. at 33 (January
- 16, 1990) (issues related to the adequacy of an amendment issued i
1985 are settled and not subject to litigation in a proceeding
' involving a subsequent amendment); Flori M ower & Licht co, (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP i t
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35, 22 NRC 590, 598-99 (1985) (contention related to the effects -
of hurricanes'and tornados on a spent fuel pool is inadmissible r ,
in a-spent fuel pool expansion amendment proceeding, because such effects were considered _in the Safety Evsluation at the operating ,
license stage); conanmar Power ca. (Big Rock Point Nuclear Plant), LBP-80-4, 11 NRC 117, 127-28 (1960) (contention related to licensee's' financial ability to care for an expanded spent fuel pool is inadmissible 'in a spent fuel pool expansion amendment proceeding, because the licensee's financial '
J qualifications were considered in granting the construction permit and' operating license); Portland canaval Electrie ca.
(contention related to ability of a spent fuel pool to withstand 1.
earthquake is inadmissible in a spent fuel pool expansion amendment proceeding, because the contention challenged the safe shutdown: earthquake for the entire facility).' Proposed-contentions that seek to go beyond these bounds are objectionable and inadmissible.
Based upon the principles discussed above, it is apparent the Proposed' Contention 25 is inadmissible. The proposed contention is seeking to relitigate the adequacy of the P/T limits that were the subject of a previous operating license amendment proceeding and that would be substantively unaffected by the revised Technical Specifications. Since a petitioner is hot allowed to relitigate previously decided issues, Proposed Contention ~25 should be rejected.
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For the foregoing reasons, Petitioners have not l submitted any admissible contentions. Consequently, the Amended l> Petition should'be. denied.
(
l' Respectfully submitted, w .
Harold F. Reis J Steven-P. Frants !
James' Vigil, Jr.
Newman'& Holtsinger, P.C.
1615 L Street, N.W.
Washingon, D.C. 20036 (202) 955-6600 Co-Counsel:
John T., Butler,'Esq.
Steel, Hector'& Davis "
+
.4000 Southeast Financial Center
-Miami, Florida :33131-2398 2
s Dated this~16th: day of March 1990.
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4- USNRC vuIrso svaras or Axmarca mucLaan naouxaront couurasIom '
% MR 16 P4 :14 arrona run araurc mar Tr nun trcumsrma maann u
0FFICt 0F SECRETARY .
1- 00CKEllNG & SERVICE t ,
BRANCH
) 'l In the ' Matter.of
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FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 0u-5 o ) 50-251 OM-5 L .
)
L (Turkey Point Plant, Units 3 ) (Technical Specifications
- and 4) Replacement) t
) ;
) .
CERTIFICATE Or EERVICE i L I hereby certify that copies of the attached
" Applicants Response to Amended Petition to Intervene" dated March 16, 1990 in the above captioned proceeding were served on-the following by hand delivery or deposit with Federal Express on the date shown below.
Peter B. Bloch, Chairman '
- Atomic Safety and Licensing Board
-U.S. Nuclsar Regulatory Commission l
Washington, D.C. 20555' i Dr. George C. Anderson.
7719 Ridge > Drive, N.E.
Seattle, WA 981'15 Elizabeth B.'Jofinson L Oak' Ridge National Laboratory P.O. Box 2008 l Bethel Valley Road, Bldg. 3500 ,
l Mail.Stop 6010 Oak Ridge, TN 37831
-' Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal. Board Panel y U.S. Nuclear Regulatory Commission Washington, D'C. 20555 J Office of the Secretary L
U.S. Nuclear Regulatory. Commission Washington, D.C. 20555 Attention:- Chief Docketing and Service Section
-(Original plus two copies) ;
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.c d Thomas J. Saporito, Jr.
Executive Director- >
1
-Nuclear-Energy Accountability Projact
. 1202 Sioux Street - '
Jupiter, Florida 33458 -
Janice E. Moore, Esq. '
. Patricia A. Jehle, Esq.
Difice of: General Counsel U.S. Nuclear-Regulatory Commission
- Nashington, D.C. 20555 John T. Butler L steeli Hector & Davis- .
4000 Southeast Financial Center !
Miami, Florida 33131' L
Dated this'16th day of March 1990.
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Steven P..Frants Newman & Holtzinger, P.C.
1615 L Street, N.W. 1
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Suite 1000-Washington, D.C. 20')36 :
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