ML20023D939
| ML20023D939 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/31/1983 |
| From: | Brown H KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20023D940 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8306060184 | |
| Download: ML20023D939 (40) | |
Text
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DCCKETED
.3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION,
_O
-].m Before the Atomic Safety and Licensing Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
)
Docket No. 50-322 (OL)
(Shoreham Nuclear Power Station,
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Unit 1).
)
)
SUFFOLK COUNTY RESPONSE TO THE LILCO AND STAFF OPPOSITIONS TO MOTION FOR LEAVE TO FILE A NEW CONTENTION CONCERNING THE SHOREHAM EMERGENCY DIESEL GENERATORS I.
Background Facts On May 2, 1983, Suffolk County filed a " Motion for Leave to File a New Contention Concerning the Shoreham Emergency Die-sel Generators" (the " Motion").
The County's proposed conten-tion was attached to the Motion.
On May 10, 1983, the County filed an Addendum to its Motion to clarify that, in seeking ad-mission of the new contention, it also satisfied all require-ments for reopening the evidentiary record.
After LILCO and the Staff opposed the Motion,l/the Board, sua sponte, issued an order permitting the County to file this response.2/
1/
See "LILCO's Opposition to Suffolk County's Motion to Add an Emergency Diesel Generator Contention," dated May 16, 1983 ("LILCO Opposition"); "NRC Staff Response to Suffolk County Motion for Leave to File a New Contention Concern-ing the Shoreham Emergency Diesel Generators," dated May 18, 1983
(" Staff Response").
2/
See " Order Permitting Suffolk County to Reply to Arguments Opposing Its Motion to Admit a New Emergency Diesel Gener-ator Contention," dated May 20, 1983.
8306060184 830531 DR ADDCK 0500032 Q3
a A.
LILCO has covered up problems with the Shoreham die-sel generators and the Staff has acquiesced in and aided the cover-up.
LILCO and the Staff have opposed the County's Motion on a variety of grounds, including that the proposed contention lacks adequate basis and particularity, that the proposed con-tention is untimely, and that the Staff has been and is con-tinuing to apprise the County of all developments and problems with the Shoreham emergency diesel generators and thus ade-quately protects the County's interests.
The picture thus por-trayed by LILCO and the Staff is that the County should have gathered detailed information and filed a diesel generator con-tention earlier and that, in any case, the Staff has matters well in hand and is keeping the County fully informed of devel-opments.
The picture is surrealistic and bears no relationship to reality.
The LILCO and Staff filings must be read in the light of important information which LILCO and the Staff have withheld from the Board:
LILCO has covered up and concealed from the County information regarding the diesel generators and, by barring the County's consultants from entrance to the Shoreham plant, has prevented the County from accompanying NRC inspectors witnessing diesel testing; further, the Staff has acquiesced in and aided this cover-up.
The cover-up has pre-cluded the possibility of resolving the County's concerns regarding the diesel generators without filing a new contention.
_2_
c The facts surrounding the cover-up are as follows:
1.
The County first began to learn the details of the re-cent problems with the diesel generators after February 24, 1983, when the Staff issued I&E Report 82-35.
Mr. Goldsmith, the County's consultant, received this Report on March 8, 1983, and dur'ing March attempted to obtain further information tagarding these problems.
See Affidavit of Marc W.
(" Goldsmith Affidavit"), Attachment 1 hereto, at 4-6, setting forth his numerous conversations with NRC I&E officials in an effort to learn the details of the diesel problems.
In these conversations, Mr. Goldsmith learned that important further in-formation was being developed by the Staff concerning the Shoreham diesels and that this information would likely be available in late March or early April.
(Id. at 6.)
2.
On March 23, 1983, the County's counsel wrote to counsel for LILCO.
Referring to recent reports of problems with Shoreham's diesel generators and noting that "Suffolk County does not have access to the raw data relating to the problems the County requested LILCO to
"(1) provide the County with the raw data and all descriptions, analyses, reports, and other written materials concerning the problems which have arisen with the diesel generators since the beginning of May 1982
.; and (2) permit the County access to the diesel gen-erators so that the County's consultants can inspect such generators and obtain firsthand information concerning whether a design flaw or some other type of flaw is involved."
I A
y l
(Letter from Lawrence Coe Lanpher to W. Taylor Reveley, III, to LILCO's Opposition, and appended hereto for the Board's convenience as Attachment 2.)
This request represented not only an attempt to secure additional information on the e
diesel problems, but also a suggested manner for dealing with the County's concerns aside from litigation.
3.
LILCO rejected this request and cynically linked the safety problems concerning the diesels to the unrelated issue of the County's decision not to adopt or approve an offsite emergency plan.
See letter from W.
Taylor Reveley, III, to Lawrence Coe Lanpher, dated March 28, 1983, Attachment 2 to LILCO's Opposition, appended hereto for the Board's convenience as Attachment 3.
The false statements on page 3 of the LILCO Opposition regarding the County's "true motivation"3/ are nothing more than a projection on others of LILCO's attempt to bargain with the safety of Shoreham in a desperate attempt to secure an emergency plan.4/
The County will not participate 3/
LILCO also characterizes the proposed contention as a
" transparent effort" and asserts that the County is here motivated by a desire "to obstruct or delay the issuance of the Board's Partial Initial Decision."
(LILCO Opposi-tion at 2-3.)
LILCO further questions the integrity of the County -- and its counsel -- by asserting that the claims set forth in the Motion are " disingenuous" and by suggesting that, rather than seeking to develop the issues pertaining to the diesel generators, the County would use the proposed contention to delay the proceeding so as to further its " active obstruction of emergency planning."
(LILCO Opposition at 10, 23.)
4/
Contrary to LILCO's assertion (LILCO Opposition at 3), the County does not seek to use any means "to block the li-(Footnote cont'd next page) 1
.o ta in that type of bargaining.
4.
On March 23, 1983, the County's counsel also wrote to counsel for the NRC Staff requesting advance notice of, and the right for the County's consultants to attend, meetings and par-ticipate in telephone conversations between the Staff and LILCO concerning the diesel generators, and to witness NRC inspec-tions and test witnessing of the diesels. (Attachment 4 hereto.)
The Staff's counsel replied by letter of April 13, 1983, rejecting the County's requests (except as to notice of Staff inspections) and noting that the County had been invited to attend an " exit meeting" regarding an inspection of the Shoreham diesels.
(Attachment 5 hereto.)
5.
Mr. Goldsmith was informed by phone on Friday after-noon, April 15, 1983, that this " exit meeting" would be held the following day, Saturday, April 16, 1983.
Although Mr.
Goldsmith attended the meeting, the Staff had rehearsed its statement and, in fact, the " meeting" consisted of the Staff reading an uninformative three-page statement.
No questions were asked of the Staff by LILCO during the meeting, which lasted about 20 minutes.
The meeting evidenced a " business as (Footnote cont'd from previous page) censing of Shoreham and prevent its operation."
The Coun-ty's position is that no offsite emergency plan for Shoreham can ensure the evacuation or protection of the County's residents; without such a plan, Shoreham cannot be licensed to operate.
a v
usual" approach despite the fact that only four days earlier LILCO had been cited for a Level III enforcement action due to diesel deficiencies.
The exit meeting was therefore inadequate to keep the County informed of diesel generator developments.
l 6.
As detailed in a letter dated April 19, 1983 from the County's counsel to Mr. Starostecki of NRC Region 1 (Attachment 6 hereto), the Staff had declined the County's request to have' its consultant observe diesel test witnessing, but agreed to keep County's counsel informed at all times regard,ing diesel testing.
While the letter noted that the 20 minute " exit meeting" was attended by the County's consultant (see paragraph l
5, above), it explained that the informal methods by which the Staff was to keep the County advised concerning the testing of the diesel generators were not working adequately, and the I
County again requested that its consultant be permitted to observe Staff inspections and test witnessing of the diesel generators.
7.
During a telephone conversation with the County's counsel on April 28, 1983, Mr. Greenman of Region 1 reported that no decision had been reached as to the County's April 19 request, but
(
a.
said that in about a week Region 1 would send the County the list of over 40 diesel nonconformances which he agreed on April 7 to provide (see Motion at 4, n.2);
l I i n
.s w
b.
informed the County that Region 1 was retaining a private consultant, Parameters, Inc., to study the diesel generator problems and write a technical report (see Staff Response at 10-11; Motion at 7); and c.
told the County that the Staff and LILCO intend-ed to have a meeting the following week to ex-change information on diesel generator reliability and the status of diesel matters and j
LILCO actions, and that the County was invited to the meeting.
The County has still not received the list of diesel nonconformances from Region 1, and Region 1 has not given the County any information concerning the study undertaken by Parameters, Inc.
The meeting to discuss diesel reliability was scheduled for May 5, 1983, but was cancelled by LILCO after the County filed its Motion.
The County filed its Motion on May 2, 1983, because it could not obtain additional information on the diesel generators from LILCO, it was not receiving adequate in-formation from the Staff, and the Staff continued to refuse to permit the County's consultant to observe Region 1 inspections and test witnessing of the diesels.
8.
On or about May 5, 1983, Mr. Greenman informed the County's counsel that, in response to the County's letter of April 19, 1983, the Staff had reversed itself and decided to _-
l
.e invite the County's consultant to accompany Staff personnel during inspections and test witnessing of the Shoreham diesel generators.
Possible guidelines were discussed (e.g.,
that advance notice of, and an opportunity to observe, all scheduled test witnessing would be given to the County; that spot checks l
by the NRC resident inspector would not require accompaniment; and that the resident inspector would inform the County by f
telephone promptly of all deficiencies found during unaccompa-nied witnessing or inspections).
The Staff agreed promptly to send County counsel a draft memorandum of understanding or pro-tocol covering these matters.
The County has not yet received such a draft, nor has the Staff reduced its agreement to writ-ing.
9.
Mr. Greenman informed the County's counsel on about May 5 that he would be out of his office for two weeks.
During that time, the County received no information from Region 1 concerning the Shoreham diesel generators.
However, on May 16, 1983, Mr. Kister of Region 1 telephoned the County's counsel to advise that Region 1 was planning to witness diesel testing at Shoreham that week, possibly on May 18, and that the County's consultant was invited by the Staff to observe the testing.
However, just as it had done (until a contrary Board order) when the County's consultants sought to accompany NRC inspectors during the 00A inspection, LILCO denied the County's consultant access to the Shoreham site.
In its letter denying --
,o access, LILCO's counsel again linked the diesel problems to the emergency planning issue, and incorrectly characterized the County's intentions and motives.
See Attachment 7 hereto.
~
10.
On May 17, 1983, the County's counsel requested Messrs. Kister and Starostecki of Region 1 to defer witnessing diesel testing at Shoreham until LILCO permitted the County's consultant to accompany the Staff and observe the tests.
The County submitted that the Staff should not acquiesce in LILCO's arrogant use of its power to block arrangements agreed to between the NRC and the County.
Mr. Starostecki claimed that the Staff lacked the authority to suspend test witnessing.
Later that day, however, Mr. Bordenick, counsel for the Staff, told the County's counsel that the Staff did have authority to suspend test witnessing and in other cases had used that power to persuade utilities to give third parties access to nuclear power plant sites; however, he said that Region 1 refused to take such action on behalf of the County and that Mr. Dircks of the Staff supported Region 1.
- 11. -Despite its assurances that it would keep the County apprised concerning matters involving the testing of the diesel generators at Shoreham, the Staff has not given the County any substantive information concerning the diesel generators since the telephone call with Mr. Greenman on April 28, 1983.
On May 26, 1983, the County filed Suffolk County Submission of Data Regarding Shoreham Diesel Generators, transmitting allegations o.
,o that diesel 103 completed testing with a cracked engine block, that the NRC Staff did not know of the crack, and that LILCO failed to disclose the existence of the cracked block to the l
Staff.
If true, these allegations may be extremely serious and further justify the County's concerns about the Shoreham die-sels and their testing.
The Staff never apprised the County that diesel 103 had been tested.
B.
LILCO should not be permitted to use its cover-up to block the County's contention.
LILCO has used its cover-up to attempt to block a fair and open investigation into the diesel generator problems.
The LILCO cover-up has prevented the County from obtaining informa-tion regarding the recent diesel problems (except through I&E reports and, until recently, informal discussions with the Staff).
Yet LILCO then has the audacity to argue in its Oppo-sition that the County's lack of information requires that the proposed contention should be denied.
For example, LILCO argues that the County's proposed con-tention lacks adequate basis and particularity. (LILCO Opposi-tion at 25-30.)
The supporting data set forth in the conten-tion are all detailed in, inter alia, I&E reports and reports by LILCO to the NRC which became available to the County in March and April, 1983.
Yet, according to LILCO, the County's Motion is untimely because it was not filed before these reports were available to the County (see LILCO Opposition at 10-15).
Clearly, if the County had filed a contention earlier,_
e (presumably based on I&E Report 83-02 which only mentions an
" apparent violation" of diesel testing procedures but provides no details), LILCO would have vigorously opposed the Motion for 1
lack of adequate basis and particularity.
And no doubt, we would have heard LILCO's favorite cliche -- that the County is on a "51shing expedition."
As discussed in Section II.C.,
infra, and in Mr. Gold-smith's attached affidavit, the County's proposed contention is sufficiently particularized and adequately based upon the I&E and other reports referred to herein.
LILCO and the Staff are on notice of the precise issues which the County intends to pursue.
The contention cannot be defeated merely because Mr.
Youngling, in his affidavit (Attachment 3 to the LILCO Opposi-tion), takes issue with the Staff.
Nor should the contention be rejected because LILCO has covered up problems with the die-sels and barred the County from access to additional informa-tion bearing upon those problems.
C.
The undisclosed part played by the Staff in the LILCO cover-up vitiates confidence in Staff action and supports the need for the County's contention.
The Staff Response presents the misleading impression that the Staff has been and is continuing to apprise the County of developments with the diesel problems at Shoreham.
(Staff Re-sponse at 11.)
For reasons we cannot fathom, the Staff Re-sponse fails to mention LILCO's refusal to give the County in-formation about the diesel problems.
It fails to mention the -.
.o
,o Staff's refusal until May 5, after the County filed its Motion, to permit the County's consultant to observe Staff test wit-nessing and inspections of diesels.
It fails to mention that the Staff, despite promises to the contrary, did not keep the County apprised of diesel generator tests and other informa-tion.
It fails to mention that LILCO denied the County's con-sultant access to Shoreham to observe NRC test witnessing at the Staff's invitation, and fails to mention the Staff's acqui-escence in this LILCO cover-up.
Notwithstanding the foregoing, the Staff Response argues that it is protecting the interests of Suffolk County cnd its citizens so competently that intervention by the County is unwarranted.
(Staff Response at 9-12.)
It is, of course, well settled that the Staff's cognizance over a matter does not constitute sufficient means to protect an intervenor's inter-est.
See Cincinnati Gas and Electric Company (William H.
Zimmer Nuclear Station), LBP-79-22, 10 NRC 213, 215 (1979).
The Staff's paternalism is especially misplaced here, where the Staff has acquiesced in, aided and abetted, and failed to dis-close to the Board LILCO's cover-up.
Indeed, any confidence in the Staff has been severely eroded by the Staff's conduct, and therefore the need for admission of the County's proposed con-tention appears even more important to assure fair and open
~
consideration of the reliability of the emcrgency diesel gener-ators at Shoreham.
.o II.
Discussion LILCO and the Staff oppose the County's Motion on three bases:
failure to satisfy the criteria for reopening the evi-dentiary record (LILCO Opposition at 10-18; Staff Response at 4-5); failure to satisfy criteria for admission of late-filed content' ions (LILCO Opposition at 18-25; Staff Response at 6-14); and failure to state the proposed contention with adequate basis and specificity (LILCO Opposition at 25-30; Staff Response at 14,
- n. 16).
As discussed below, these Staff /LILCO arguments should be rejected.
A.
Reopening the Record 1.
The criteria _ governing reopening do not apply to this case.
The County does not need to satisfy the criteria governing reopening the record.
See LILCO Opposition at 4; Staff Response at 4-5.
While it is true that admission of the new contention will necessarily require taking additional evi-dence on health and safety matters, it does not follow that the County must satisfy the criteria established by case law for reopening the record.
Neither the participational rights af-forded to the County under Section 2.715(c), nor the " lateness" factors under Section 2.714(a), are conditioned upon a showing that the evidentiary record should be reopened.
See Addendum to Suffolk County Motion for Leave to File a New Contention Concerning the Shoreham Emergency Diesel Generators ("Adden-dum") at 1-2, and cases cited therein.
Cf. Pacific Gas and ___-_____- _ _
o s
Electric Company (Diablo Canyon Nuclear Power Plant),
CLI-82-39, NRC (slip opinion at 4, December 23, 1982)
(standard where motion to reopen relates to a previously uncontested issue).
Further, in this case it is not correct to assert that the record has in fact been closed.
While the record was closed on April 8, 1983 on the previously admitted health and safety con-tentions that had been litigated, the record still is open on emergency planning matters which pertain directly to health and safety considerations.
Thus, although a portion of the record is completed, the record is not closed on all Part 50 issues and thus, for this additional reason, the reopening criteria are not applicable.
2.
The County's Motion satisfies the criteria for reopening.
Since there has been no initial decision rendered by the Board, the County submits that two criteria govern reopen-ing the record:
"(1) the timeliness of the motion, i.e.,
whether the issues sought to be presented could have been raised at an earlier stage, such as prior to the close of the hearing; and (2) the significance or gravity of those issues."
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nucle-ar Power Station), ALAB-138, 6 AEC 520, 523 (1973).
LILCO and the Staff assert that the County must also satisfy a third cri-terion, namely, that a "different result" would have been reached had the information recently made available to the County regarding the problems with the emergency diesel generators initially been considered by the Board.
- However, since there has been no decision rendered in this case, there can be no basis for applying this "different result" criterion.
In the discussion below, the County discusses each of these criteria --
i.e.,
timeliness, significance, and different result.
The County demonstrates that it satisfies each crite-rion if the Board determines (contrary to the County's view) that some or all do apply.
The County stresses at the outset, however, that it disagrees with many of LILCO's factual asser-tions.
Thus, the County is not seeking "further litigation of issues already pursued in this licensing proceeding."
The pro-posed contention is not limited to inadequacies in LILCO's quality assurance program.
Nor is it limited to inadequacies in LILCO's preoperational test program.
See LILCO Opposition at 5.
Rather, the contention focuses upon recent problems with Shoreham's emergency diesel generators that raise significant concerns regarding the operational capabilities and reliability of the diesels.
a.
Timeliness of County's Motion In requesting leave to file its proposed contention, the County made clear that it could not previously have raised the issues set forth in the contention.
See Motion at 6-7.
LILCO and the Staff, however, assert that the County should have filed its proposed contention many months earlier.5/
5/
LILCO claims that the County "was aware of most of the circumstances cited in its proposed contention several (Footnote cont'd next page) - -
l s
LILCO and the Staff distort the facts in contending that the County's proposed contention is untimely.
Indeed, a chronology of the facts reveals that the County was not in possession of sufficient facts to draft its contention until at least mid-April -- making its May 2 submission entirely timely.
The facts relating to the timeliness of the County's Motion are set forth below.
(1)
I&E Report 83-02 was received by the County in January 1983.
That Report noted an " apparent violation" regarding the conduct and review of preoperational testing for one of the diesels.
When the County attempted to inquire into this Report, it was opposed by LILCO, and the Board, over the County's objection, precluded any questioning on the " apparent violation."
- See, e.g.,
Tr. 19,422-28 and 19,533.
(2)
The County first learned some details of problems with LILCO's testing of the diesel generators several weeks after February 24, 1983, the date I&E Report 82-35 was issued by the Staff.6/
That Report provided only conditional (Footnote cont'd from previous page) months prior to its filing." (LILCO Opposition at 10.)
The Staff claims that the County "has been aware of the diesel generator problems at Shoreham for a long and con-tinuing period of time, at least over six months."
(Staff Response at 8.)
6/
The County's consultant, Mr. Goldsmith, received I&E Report 82-35 on March 8, 1983.
- 4. _
,o statements concerning the seriousness of the problem:
for j
example, it revealed only that "a test of one emergency diesel generator may not have been performed properly and consequently there may not be adequate assurance that the diesel generator will successfully operate under maximum service conditions."
(Emphasis added.)
(3)
On March 8, 1983, LILCO, in accordance with 10 CFR 50.55(e), reported verbally to Region 1 deficiencies con-cerning cracking of the cylinder heads on each of the diesel generators.
LILCO's written report on these deficiencies, SNRC-873,-was dated April 15, 1983.
(4)
On March 24, 1983, I&E Report 83-07 was issued by the Staff.
Mr. Goldsmith received that Report on April 4, 1983.
The Report revealed that LILCO had experienced problems in performing the 72-hour pre-liminary electrical test runs for the three diesels.
The problems included " apparent overall excessive vibration" and numerous causal factors for failures, and questioned the reliability of the diesels for continuous operation.
- However, because the test runs were preliminary in nature, no violations or discrepancies were reported.
Instead, the problems observed were designated as an open (unresolved) item to be resolved on subsequent Staff inspections.
(5)
On March 30, 1983, LILCO reported verbally to Region 1 that it had discovered cracks or the potential for cracking in a significant number of bolts used in the rocker arm assemblies.
LILCO's written report concerning these bolt failures, SNRC-883, was not filed until May 4, 1983.
(6)
On April 12, 1983, Enforcement Action ("EA")
83-20 was issued by the Staff.
EA 83-20 reported that the die-g sel generator testing violation initially identified in I&E Report 82-35 demonstrated:
"a lack of aggressiveness on the part of LILCO to pursue, identify and resolve asso-ciated problems that can affect the reliability of the diesel generators, including attention to detail during per-formance, data review, and approval of the test results of [LILCO's] preoperational test program...[T]hese actions are neces-sary to demonstrate that the [ diesel] com-ponents will perform satisfactorily in i
service."
I In order to emphasize "the need for more attention to detail during review and approval of test results," the Staff cited 1
LILCO for a Severity Level III violation and imposed a fine of
$40,000.
Thus, while an earlier I&E report did identify the diesel generator testing violation, the crucial details relating to the violation -- particularly the seriousness of the concerns -- were not made available to the County until i
April 12, 1983.1/
l 7/
LILCO responded to I&E Report 82-35 on March 16, 1983, in SNRC-859.
LILCO disputed the seriousness of the Staff's findings.
Accordingly, it was not until April, when EA i
83-20 was issued, that the full seriousness of the Staff findings (assessed in light of LILCO's response in
[
SNRC-859) could be ascertained.
f,
l l
(7)
I&E Report 83-08 was issued by the Staff on April 15, 1983.
That Report revealed that LILCO had written and approved procedures to perform various electrical load tests of the diesel generators that were not in compliance with the requirements of Regulatory Guide 1.108.
LILCO was not cited for a violation or discrepancy, but the item was desig-i nated as unresolved.
Under the foregoing facts, the Board must find that the County's May 2 Motion was timely.
Contrary to LILCO's asser-tion that "some" of the data relied upon by the County had been availab.le_for more than three months and "most" for more than a month prior to the filing of the contention (LILCO Opposition at 14), the County in fact was without sufficient data to prepare a contention until mid-April.
In this regard, it is useful tc summarize:
The testing deficiency portion of the County's contention (page 2, 11) is based primarily on I&E Report 82-35 and EA 83-20.
I&E Report 82-35 was not received until March 8 and EA 83-20 was not available until April 12, 1983.
See Goldsmith Affidavit at 4, 6-7.
The vibration portion of the County's contention (page 2, 12) is based upon data which first became available to the County in I&E Report 83-07, which was received by the County on April 4, 1983.
See Goldsmith Affidavit at 4, 11.
The cracking portion of the County's contention (page 2, 13) is based on LILCO's March 8 and 30 verbal 50.55(e) -_
notifications and on LILCO's written 50.55(e) notification, dated April 15, 1983, and received by the County several days thereafter.
See Gold-smith Affidavit at 4, 14.
The " lock out" portion of the County's contention (page 3, 14) is based on data received by Mr. Goldsmith verbal-ly from the Staff between April 15 and 20, 1983. See Goldsmith Affidavit at 5, 16.
The trend analysis portion of the County's contention (page 3, 15) is based upon data in I&E Report 83-07, received by the County on April 4, 1983.
See Goldsmith Affidavit at 4, 17.
The foregoing emphasizes that the data supporting the County's contention became available in a piecemeal fashion over a period of several months.
The County, chiefly through Mr. Goldsmith, diligently attempted to gain full details.
It was not, however, until mid-April that all the pieces of the diesel generator puzzle fell into place, at which time the County promptly began to prepare its contention.
See Goldsmith Affidavit at 5-6.
A May 2 submission under these circumstances is certainly timely.8/
I I
8/
An earlier filing date might have been possible if LILCO or the Staff had provided data requested by the County's counsel in the March 23 letters.
See Attachments 2 and 4.
However, the Staff and LILCO steadfastly refused such co-operation, making it impossible to submit a contention until after receipt of the data in I&E Report 83-07 and EA 83-20..
The Board must also reject LILCO's assertion that "the specific subject of the diesel generators was also raised and resolved earlier in this proceeding."
(LILCO Opposition at 5-6.)
Certainly, the diesel problems addressed in the proposed contention were not " raised and resolved" at the time SC Con-tention 2 was settled by the parties, since SC Contention 2 concerned only the diesel generator relays, alleging that there was a "high probability of system failure due to accumulation of dirt in relays located in the diesel generator rooms."
See Goldsmith Affidavit at 2-3 for discussion of why the previous diesel-contention was dif ferent in basis and purpose from the present contention.
Even the Staff acknowledges that it has been "recent events" that have " highlighted problems associated with the emergency diesel generators at Shoreham." (Staff Response at 7.)
Although the Staff also asserts that LILCO has experienced "a broad range of mechanical problems" with the diesel genera-tors "over the last several years,"
id.,
there is no indication that these past problems provoked concern by the Staff.
Howev-er, as demonstrated by the Staff Response, the recent diesel problems have caused the Staff to initiate a number of signifi-cant remedial measures.
(Staff Response at 9-11.)
These measures reflect the Staff's grave concerns about the recent diesel problems that have occurred at the Shoreham plant.
See Goldsmith Affidavit at 19.
It is precisely these recent 1
o' problems, not alleged problems from the past, which form the basis for the proposed contention.
However, LILCO and the Staff suggest that SNRC-549, dated March 27, 1981, SNRC-649, dated December 23, 1981, and SNRC-777, dated October 15, 1982, put the County on notice regarding the need to file a diesel contention.
(LILCO Opposi-tion at 13-14; Staff Response at 7.)
These letters relate, re-spectively, to the lubricating oil system for turbocharger bearings, defects in a spherical washer used in the fastening of the piston crown to the piston skirt, and jacket water pump shaft failures.
Certain of these problems could be related to the vibration-related issues raised in the proposed contention.
However, as separate, distinct events, no correlation was done l
by anyone to link these events to vibration.
Clearly, none of o
these letters relates to the failure to test the diesels prop-erly or, with the possible exception of the vibration problems, to the other issues raised in the proposed contention.
See Goldsmith Affidavit at 3 for further discussion.
Unrelated diesel problems from 1981 and 1982 cannot be used to argue that the proposed contention, based on new 1983 problems, should have been filed earlier.
b.
Significance of the Issues Raised LILCO contends that reopening is also inappropriate because the County's proposed contention is not based on "sig-nificant new facts and circumstances."
(LILCO Opposition at L.-.
15.)
As discussed above, however, the County has demonstrated that these are new facts, since the bases for the contention are data revealed for the first time in 1983.
We submit further that the significance of these facts warrants reopen-ing.
For instance, in issuing EA 83-20, the Staff emphasized that it has serious concerns about the reliability of LILCO's diesel testing procedures and management review process.
The Staff has also expressed concerns about the operational capabilities and the reliability of the diesels.
Thus, in I&E Report 83-07, it was noted that:
"an apparent overall excessive vibra-tion problem exists with all three of the diesel generator sets, there are many apparent causal factors underlying the numerous incidents that have occurred to the diesel generator
- sets, the reliability for continuous i
operation and for standby electrical power is questionable at this point, and further trend analysis of these incidents and occurrences is required to resolve the continuing high incident rate of problems and failures to the diesel generator sets."
As a result, the Staff has initiated a number of significant actions with respect to the diesel generators, including the retention of an expert consultant to review the diesel testing i
and the physical condition and operation of the diesels.
(Staff Response at 10-11.)
The Staff's response emphasizes the significance of the recent diesel problems..
Notwithstanding the obvious extent of its concerns about Shoreham's diesels, the Staff argues that the problems which have been experienced are not of such significance to warrant reopening the record.
In this same vein, the Staff suggests that the effect of reopening would be to permit intervenors generally to reopen the evidentiary record every time the Staff, in the performance of its inspection duties, discovers and reports a safety defect.
(Staff Response at 5.)
This Staff assertion is nothing more than a red herring.
The County is not trying to place in contention every defect that is identified in I&E reports, and to suggest such a risk in granting the Motion reflects only the Staff's desperate at-tempt to bar the County from addressing the serious safety issues raised concerning the diesels.9/
The County has alleged serious deficiencies with the diesels which have direct signif-icance to safe operation of the Shoreham plant.
The Staff's citation of LILCO for a Level III violation is itself an admis-sion of the significance of the deficiencies since a Level III 9/
The Staff also argues that reopening the record on the basis of I&E findings could mean that proceedings might never be brought to conclusion.
(Staff Response at 5.)
This is another red herring; the Licensing Board of course must weigh the seriousness and basis for each new conten-tion.
Where, as here, a series of serious defects are re-vealed, the Board should balance on the side of ensuring that the safety problems are resolved.
Moreover, this specious " delay" argument has previously been rejected by the Appeal Board.
See Vermont Yankee, supra, 6 AEC at 4
365.. _ - _..
violation is "cause for significant concern."
47 Fed. Reg. at 9990 (1982).
Further, the actions taken by LILCO and the Staff confirm the significance of the diesel problems.
Those actions include:
LILCO's establishing a Task Force, at the Sta.?f's urging, to review the die-sel problems and to determine if addi-tional corrective / preventive actions are needed; LILCO's decision to bring the diesels' manufacturer's representatives onsite full time for a number of months; LILCO's hiring of at least two different outside consultants to review the problems with Shoreham's diesels; The Staff's retention of an expert consultant to review ongoing diesel testing and the physical condition and operation of the diesels; and The Staff's frequent review of diesel testing and other issues during April and May, 1983.
(Staff Response at 9-11.)
Here, as the attached affidavit of Mr. Goldsmith demon-strates, the County's proposed contention raises serious and significant matters related to plant safety.
It is undisputed i
that there have been problems with the Shoreham emergency die-sel generators.
These problems have raised the possibility of serious design flaws in this crucial plant equipment.
More-
- over, LILCO's testing of the diesels has raised serious concerns regarding the operational readiness and reliability of the diesels.
See Motion at 1-4.
c.
The "Different Result" Criterion As previously noted, LILCO and the Staff assert that the County must establish that a different result would have been reached had the infomation recently made available to the County regarding the diesel problems initially been considered by the Board.
This assertion ignores the basic fact that there has been no decision --
i.e.,
no result -- rendered by the
)
Board.
Since a decision has yet to be reached in this proceed-ing, there can be no basis for requiring the County to show somehow that the new information concerning the diesel genera-tors would have led to a different result by the Board.
With-out a decision, the question arises -- a different result than what?
It is only when a decision has been issued that the party seeking to reopen the record must show that reopening would alter a result previously reached.
- See, e.g.,
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 21 (1978).
See also Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2,
3, and 4), LBP-72-2, 7 NRC 83, 85 (1978), where the licensing board, in reopening the record, stated:
"[W]e reject the argument that the evidence must be of such significance that our find-ings or conclusions would be altered before we should receive new evidence.
We cannot identify any practical reason nor compel-ling legal basis to deny this Board the op-portunity to consider material and relevant evidence in our findings where, as is the case here, this can be accomplished with little or no burden upon the parties.
26 -
.a Of greater significance is the fact that an important responsibility in an ad-ministrative adjudicative proceeding is to preserve a record suitable for review (10 CFR S2.756).
To exclude otherwise compe-tent evidence because our conclusions may remain unchanged would not always satisfy this requirement."
(Citation omitted.)
The cases cited by LILCO and the Staff in support of their assertion that the "different result" criterion must be met are distinguishable.
With apparently only two exceptions, those cases involved motions to reopen following issuance of initial decisions.
The two exceptions were Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 804 (1979) and Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), No. 50-382-OL, slip opinion at 6-7 (ASLB October 18, 1982).
In these cases, however, the motions were denied because the issues sought to be presented were not of sufficient significance to warrant reopening.
The "different result" criterion was mentioned only in passing dic-tum and did not form a basis for the decision on reopening.10/
Thus, those cases do not support the proposition that the Coun-ty must meet a "different result" criterion.
Further, to the extent one can articulate a "different result" criterion in this case, that criterion is satisfied by 10/
In Waterford Steam, reopening was denied because the new information was "merely cumulative."
In Black Fox, re-opening was denied because the issues raised had been
" fully litigated.".
the County's contention.
The County's contention and evidence demonstrate that the diesels at Shoreham could be unreliable and may not meet applicable regulatory requirements.
Evidence of failure to satisfy regulatory requirements would preclude issuance of an operating license for Shoreham and clearly constitutes a "different result."
It is therefore clear that the outcome of this proceeding may be affected by the information which forms the basis of the County's proposed contention.
Thus, even if, as a prerequisite for admission of its proposed contention, the County is required to meet the criteria for reopening the record -- i.e.,
timeliness, significance and different result -- those criteria are fully satisfied and reopening is warranted.
B.
The Section 2.714(a) Factors The County has previously discussed why the facts relating to each of the factors of Section 2.714(a) support admitting its proposed contention.
See Motion at 5-12.
That discussion will not be repeated here.
However, the County will respond to i
the misconceptions and factual inaccuracies set forth in the LILCO Opposition and the Staff Response.
There are five factors considered in deciding whether to admit a late-filed contention:
good cause for not having filed earlier; the existence of other means to protect the County's interest; the extent to which the County can be expected to I
(
assist the Board in developing a record; the ability of other l
l -
parties to protect the County's interest; and the possible delay caused by the late contention.
As demonstrated below, all factors weigh in the County's favor.
1.
There is good cause for the County's failure to file the proposed contention earlier.
Contrary to the view of LILCO and the Staff, the County could not have filed its proposed contention earlier.
Rather, as discussed in conjunction with the criteria for re-opening (see pages 15-22, supra), the County acted in a prompt and diligent manner in filing its proposed contention.
The data supporting the contention were new and were obtained in a piecemea5 manner during March and April, 1983.
The County was not in a position to begin drafting a detailed contention until mid-April.
Thereafter, the proposed contention was promptly prepared and filed.
Moreover, under the circumstances of this case, LILCO should not be heard to complain about the timing of the Coun-ty's filing.
If the County's filing was delayed, LILCO must shoulder responsibility.
LILCO has covered up and concealed from the County information regarding the diesel generators and has prohibited the County's consultant from accompanying NRC inspectors witnessing the diesel testing.
This cover-up has prevented the County from obtaining information regarding the diesel problems, except through I&E reports and, until re-cently, informal discussions with the Staff.
Under these circumstances, the County has acted in a timely manner, i.e.,
,a there is " good cause" for not having filed the proposed contention earlier.
2.
There are no other means to protect the County's interest.
LILCO and the Staff suggest that the County can protect its interest in ensuring that regulatory requirements regarding the emergency diesel generators are met by requesting the Director of the Office of Inspection and Enforcement to in-itiate a show cause proceeding "to modify, suspend or revoke a license or for such other action as may be proper."
10 CFR S2.206(a).
Thus, they urge the Board to weigh this factor against the County.
(LILCO Opposition at 21-22; Staff Response at 9.)
The initiation of a section 2.206 proceeding, however, would not be as efficacious as permitting the County to file its new contention in the present proceeding before this Board.
See Consolidated Edison Company (Indian Point Station, Unit No.
2), LBP-82-1, 15 NRC 37, 40-41 (1982) (provisions in the Commission's rules for the initiation of rulemaking and adjudi-catory proceedings not as efficacious as permitting intervenor to file new contention); see also Motion at 9-10.
Further, a Section 2.206 proceeding would essentially rely upon the Staff to be arbiter of the County's concerns.
The Staff, however, has taken the position that the County's concerns already are being addressed adequately.
The County sharply disagrees.
Under these circumstances, a Section 2.206 proceeding cannot be l
viewed as an adequate means of protecting the County's interests.
2.
The County can be expected to assist in developing a sound record.
LILCO and the Staff argue that there must be some showing by the County of how it will contribute to the develop-ment of a sound record on the particular issues raised in the proposed contention.
(LILCO Opposition at 23; Staff Response at 13.)
This showing is made by way of Mr. Goldsmith's atta-ched affidavit.
That affidavit demonstrates that Mr. Gold-smith's expertise will be of assistance to the Board in resolving the diesel problems.ll/
It sets out the issues raised by the proposed contention, identifies Mr. Goldsmith as the County's primary consultant and witness should litigation be necessaryl2/ and summarizes, with as much particularity as possible, his proposed testimony.
Thus, this factor must be balanced in the County's favor.
See Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC (December 21, 1982) (slip opinion at 9-10).
11/
LILCO contends that "Mr. Goldsmith is not a diesel genera-tor expert."
(LILCO Opposition at 22.)
The County and the Staff disagree.
(Staff Response at 13.)
Moreover, it is interesting that LILCO relies on the affidavit of Mr.
Youngling to support its Opposition to the Motion.
While Mr. Youngling, as Startup Manager, is responsible for preoperational test activities at Shoreham, he does not appear to be a diesel generator expert.
12/
If the proposed contention is admitted, Mr. Goldsmith (as he did on SC Contention 19 -- Human Factors Procedures) intends to retain additional diesel experts to assist him in addressing the issues. -___________
Moreover, from the actions taken or to be taken by the Staff,13/
it would appear that the Staff shares some of the County's,same concerns regarding the diesels and that it wel-comes Mr. Goldsmith's assistance in resolving the problems that have occurred.
(Staff Response at 13, n. 14.)
The County believes that Mr. Goldsmith's expertise would also be of value to the Board.
See Cincinnati Gas and Electric Company, supra, 10 NRC at 215.
See also Motion at 10-11.
4.
No other party can protect the County's interest.
LILCO asserts that there is a " commonality of inter-est" between the Staff and County on the matters raised in the proposed contention and that the Staff can therefore adequately protect the County's interest.
(LILCO Opposition at 23-24.)
Not to be outdone, the Staff suggests that LILCO and the Staff will together pursue the diesel generator problems to an adequate conclusion.
(Staff Response at 9-12.)
Thus, the Board is urged to weigh this factor against the County.
Under the circumstances of this case, it is absurd to suggest that either the Staff or LILCO will adequately represent the County's interest as expressed in the proposed contention.
Although the Staff and the County are both charged with representing the public interest, the Staff, in this case, has abandoned that interest in favor of LILCO.
By choosing to 13/
See Staff Response at 9-11... _ _ _ _ _
participate in LILCO's cover-up (see pages 5-10, supra), the Staff has made clear that its interests completely diverge from those represented by the County.
Even under far less onerous circumstances, it is well established that the Staff is not an adequate substitute for intervenors.
See Cincinnati Gas and Electric Company, supra, 10 NRC at 215, where the licensing board, when confronted with this same issue, noted:
Although the Staff clearly represents the public interest, it cannot be expected to pursue all issues with the same diligence as an intervenor would pursue its own issue.
Moreover, unless made an issue in this proceeding, it would not attempt to resolve the issue in an adjudicatory context.
Giving all possible deference to the adequacy of the Staff's review, we conclude that the Applicant's reliance on the Staff review gives inadequate consider-ation to the value of a party's pursuing the participational rights af forded it in an adjudicatory hearing.
Hence, this factor must be weighed in favor of admitting the contention.
5.
Admission of the County's contention would not delay the proceeding.
Although LILCO and the Str.ff assert that this factor weighs against the Ccunty, they concede that admission of the proposed contention might not cause any delay in the proceed-ing.
(LILCO Opposition at 25, Staff Response at 13.)
For the reasons previously noted, the County doubts that admission of the contention would cause delay.
See Motion at 11-12.
Al-though the Board anticipates issuing its partial initial _
decision on matters other than emergency planning by the end of July, that decision will be partial and will not deal with all issues.
.The Board, for example, may still need to address the Teledyne report.
Thus, this factor should also be balanced in the County's favor.
Moreover, even if it is concluded.that admission of the proposed contention woul'd delay this proceeding, the signifi-cance of the matters raised in the contention to the plant's safety requires this Board to admit the contention.
As noted by the Appeal Board in Vermont Yankee, supra, 6 AEC at 365:
"We cannot accept the applicant's unstated premise that the desirability of completing the hearing process outweighs the need to resolve potentially serious safety matters.
This is so even though the staff believes that the matters raised...do not warrant consideration in the hearing but instead can be handled by the staff outside the hearing process.
The interve-nors have every right, in presenting con-tentions for consideration, to rely upon consequential safety matters brought to light by the staff's technical experts.
In short, delay in the issuance of an operating license attributable to an inter-venor's ability to present to a licensing board legicimate contentions based on serious safety problems uncovered by the staff would establish not that the licens-ing system is being frustrated, but that it is working properly.
Any delay in such a situation would be fairly attributable not to the intervenors but to the non-readiness of the facility for operation.
Delay in the issuance of the license is entirely appropriate -- indeed, mandated -- in that circumstance."
l I I
C.
Adequacy of Specificity and Basis LILCO and the Staff assert that even if the Motion were otherwise proper, the County's proposed contention lacks the specificity and bases required by 10 CFR S2.714(b).
(LILCO Op-position at 25-30; Staff Response at 14,
- n. 16.)
Thus, they urge this Board to require further particularization by the County.
As fiAed, the contention is sufficiently particularized and the bases of the contention are adequately set forth.
In-deed, the specific violations of NRC regulatory requirements set forth in the proposed contention are based upon data de-tailed in I&E reports and reports by LILCO to the NRC.
These regulatory violations are further particularized by Mr. Gold-smith in his attached affidavit.
1.
Diesel Generator Testing The proposed contention alleges that LILCO has failed to test adequately the diesel generators and has failed to en-sure adequate review and approval of test procedures and test results.
In making this allegation, the County relied upon I&E Reports 82-35, 83-02, 83-07 and 83-08 and I&E Enforcement Action 83-20.
These documents reported, among other things, that:
the preliminary 72-hour electrical test runs of the diesels were " accompanied by problems similar to the many problems that have occurred relating to the diesel generator sets in the past year of testing" (I&E Report 83-07).
During the preoperational test for diesel 102 performed to verify the diesel's capability at running at its two hour rating, " load values did not meet the acceptance criterion or the proce-dure step"; nevertheless, the Test Engineer and OQA inspectors signed and accepted the test results.
This testing violation " demonstrate [d]
a lack of aggressiveness on the part of LILCO to pursue, identify and resolve associated problems that can affect the reliability of the diesel generators..." (EA 83-20).
With respect to electrical load tests of the diesels, LILCO wrote and approved procedures for testing that did not meet the requirements of Regulatory Guide 1.108 (I&E Report 83-08).
Thus, LILCO and the Staff clearly are on notice regarding the precise problems alleged by the County and the basis for the County's belief that these problems exist.
See Goldsmith Affi-davit at 7-10 for further details.
It is no answer to the County's contention that Mr. Youngling, in essence, disputes these allegations of testing deficiencies (and, in the process, disputes the Staff I&E findings).
There clearly are factual issues in dispute, as demonstrated by the proposed contention and Mr. Goldsmith's affidavit.
The fact that Mr. Youngling was able to prepare a detailed affidavit in an attempt to refute the contention clearly shows that LILCO is on notice to the problems which the rounty seeks to raise.
2.
Vibration As documented in I&E Report 83-07, there has been an apparent "overall excessive vibration problem" with all three diesels.
As pointed out in Mr. Goldsmith's affidavit, such vi-bration can prevent the diesels from reliably performing... _ _
intended functions.
See Goldsmith Affidavit at 10-14 for ad'ditional details on the vibration problems.
Again, LILCO and the Staff clearly are on notice concerning the basis for the County's concern and have been particularly referenced to I&E documents which concern this issue.
3.
Cracking of Components The diesels have suffered from cracking of compo-nents, as documented by LILCO's verbal reports to Region 1 on March 8 and 30, 1983, and LILCO2s written reports, SNRC-873 and SNRC-883, dated April 15, 1983 and May 4, 1983.
As discussed in Mr. Goldsmith's affidavit, these deficiencies have included water jacket leaks which could decrease power output and interfere with rapid startup of the diesels.
(Goldsmith Affi-davit at 15.)
Again, LILCO and the Staff have been given notice of the precise concern being addressed and the basis for the County's belief that there is a cracking problem.
4.
Diesel Generator " Lock Cut" The County's allegation respecting the diesel " lock out" is based on information provided by the Staff directly to Mr. Goldsmith and on I&E Information Notice No. 83-17.
This Notice reveals a potential generic problem with the ability of the diesels to perform a hot restart.
Such hot restart is essential if reliable operation is to be assured.
Morever, the information provided regarding the failure of the restart indi-cates the existence of both a procedural and an interface _
problem.
See Goldsmith Affidavit at 16-17.
Once again, there is no basis for the Staff and LILCO to complain that they are unaware of the nature of the County's concern or the basis of the County's belief that a problem exists.14/
5.
Trend Analysis As reported in I&E Report 83-07, "further trend analysis (of the diesel problems] is required to resolve the continuing high incident rate of problems and failures to the diesel generator sets."
Without such an analysis, there can be no assurance that the diesels can reliably perform required functions.
- See, e.g.,
10 CFR Part 50, Appendix A, GDC 33 (re-actor coolant makeup), GDC 34 (residual heat removal), GDC 35 (emergency core cooling) and GDC 38 (containment heat removal).
Thus, it is the County's contention that until a proper trend analysis is prepared and necessary corrections (as indicated by the analysis) are made, there can be no assurance of safe operation of the diesels.
See Goldsmith Affidavit at 17-18.
LILCO and the Staff are on clear notice of the basis for and details of this concern.
Other reasons also compel a finding that the proposed con-tention is adequately particularized.
For example, the 14/
The hot restart issue was initially separately stated in the proposed contention.
In fact, however, it is an addi-tional testing deficiency (see Goldsmith Affidavit at 17) and can be merged as part of paragraph 1 of the conten-tion. - _ - _ - _ _ _ _ _ - - _-___
f contention can not be defeated merely because LILCO, through the affidavit of Mr. Youngling, takes issue with the County's proposed contention and with the Staff's I&E findings.
Once the contention is admitted, the County will have an opportuni-ty, through appropriate discovery or other procedures, to test the accuracy of that affidavit and to amend the contention ac-cordingly.15/ However, for now, Mr. Youngling's affidavit stands on no better footing than the affidavit of the County's consultant, which contests many of Mr. Youngling's assertions.
Under these circumstances, the County should be given an oppor-tunity to inquire into the serious and significant issues raised in its proposed contention.
15/
For example, if substantiated, allegations regarding the cracked engine block on diesel 103, reported to the Board by the County on May 26, 1983 (see pages 9-10, supra),
would justify amending the proposed contention to include this new information. - - _ - _ _ _ __
III.
Conclusion For the foregoing reasons, Suffolk County believes that its proposed contention concerning the Shoreham emergency die-sel generators should be admitted by the Board.
Respectfully submitted, David J. Gilmartin Patricia A.
Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 k.
Herbert H.
Brown Lawrence Coe Lanpher Alan R.
Dynner Michael S. Miller Kirkpatrick, Lockhart, Hill, Christopher & Phillips 1900 M Street, N.W.
Washington, D.C.
20036 Attorneys for Suffolk County May 31, 1983
.