ML20033F149

Intervenors Supplemental Motion Addressing Aslab Jurisdiction to Consider Motion to Reopen Record & Admit late-filed Contention Re Defective Rosemount Transmitters.* Svc List Encl

ML20033F149
Person / Time
Site:	Seabrook
Issue date:	03/07/1990
From:	Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#190-10022 OL, NUDOCS 9003160142
Download: ML20033F149 (10)

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..' UNITED STATES NUCLEAR REGULATORY: COMMISSION g T P5 08-j "wi g

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD GTnCE OF SECliETtJY

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In the M'atter of

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PbblictService. Company of,

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'New Hampshire,'et al.

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Docket No. 50-443 OL

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-(Seabrook Station, Units l'&-2)

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INTERVENORS' SUPPLEMENTAL MOTION l

s ADDRESSING APPEAL BOARD'S JURISDICTION TO CONSIDER MOTION TO REOPEN RECORD AND M.

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ADNIT LATE-FILED CONTENTION REGARDING DEFECTIVE ROSEMOUNT TRANSMITTERS

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On-l February.27,--1990,.Lthe Intervenors filed a motion to-kA

> reopen the' record and' admit-a' late-filed contention regarding.

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.potentially defective Rosemount transmitters installed in the Seabrook reactor.. In an order dated February 28,'1990, the

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Appeal' Board questioned its " continuing jurisdiction" over the d

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. safety; issues!raisedJby.'the' contention,;'and ordered Intervenors w

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p, (Appeal Board; also asked Intervonors-to' address the question ot' "whether, inter alia,10 C.F.R. ~ 5 2.734 (d) necessarily. con-tiemplAres that issues not previously in contestiin the' proceeding.

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'may:be raised before the adjudicatory boards."

Intervenors contend that the Appeal Board continues to have n

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'_ power operating license for Seabrook.1.Intervenors request the-

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(Appeal Board to. assert _its jurisdiction over:Intervenors' motioW

to' reopen theLrecord and admit'a-late-filed contention; or in the alternative, that it refer the motion without prejudice to the

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Commission.

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Discussion The Licensing Board's authorization of a full power:-operat-ing-license for Seabrook-is now pending before the Appeal Board, y

and no full. power license.has issued for the Seabrook reactor.

't: is.'Intarvenors' position that the Appeal Board continues to l

have jurisdiction over motions to reopenLthe record until the

-t point!at which it approves the Licensing Board's authorization of

.a' full power operating license for Seabrook.

While NRC regula-tions do not expressly address the Appeal Board's jurisdiction over moti'onsuto reopen the record, Intervenors' posit' ion is con-sistent_with 10 C.F.R.

$ 2.734, which permits the raising of'new issues-after a-record has closed; and 5 2.718 (j), which deprives-

the Licensing Board of1 jurisdiction to' consider motions ~ to reopen theLrecord after issuance of its initial-decision.

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~1 At'that point, jurisdiction would transfer to the Commission.

E lPhiladelDhia Electric Co. (Limerick Generating Station, Units

1'and 2), ALAB-823, 22 NRC 773 (1985).

Egt gag Virainia Elec-tric and Power Co. (North Anna-Nuclear Power Station, Units 1 and. 2)',. ALAB-551, 9 NRC 704, 707 (1974), referring motion to reopen record to staff for resolution under 10 C.F.R. 5 2.206.

In.Intervenors' view, such-a remedy is inapplicable where the l Commission has not yet made its final licensing decision and thus may still assert its jurisdiction as an adjudicatory body.

Moreover,=5 2.206 is an inappropriate remedy because it

.provides~for the enforcement of existing licenses.

In this n

case, there is no full power-license to enforce.

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Appeal Board precedents,.however, appear.to be-in conflict

.with NECNP's position on this subject.: Sag Lona Island Liahtina 1

gg: (Shoreham Nuclear Power Station, Unit 1),- ALAB-901, 28 NRC 302, 306'(1988);:Virainia Electric and Power Co. (North Anna

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. Nuclear Power. Station,-~ Units :1 and 2), ALAB-551, 9 NRC_-704,.707 (1974).

However, those decisions are inconsistent with other NRC-i

. requirements and would: unfairly deprive.Section 2.734 of any meaniningful utility where.intervanors discover new information relevant to the safety of full power operation.

Under NRC case law, appeal board jurisdiction to entertain new matters is dependent upon the existence of a "dreasonable o

h nexus' between those matters and the issues remaining befol.e the

[ appeal). board "

Shoreham, supra, 28 NRC at 306, cuotina North Anna, suora, 9 NRC at 70*/.

Egg also LQuisiana Power & Licht Co.,

(Waterford Steam Electric Station, Unit 3),'ALAB-797, 21 NRC 6 (1985).. These decisions 1have interpreted the " reasonable nexus" standard to. require that motions to reopen must raise subject matter.related to the issuesLon appeal.

4 Here, it is clear that the potentially defective' nature of Rosemount transmitters has no direct relationship to the adequacy of emergency planning at Seabrook.

However, the contention does raise'an issue related to the safety of full power operation at Seabrook; and the Appeal Board still has before it the issue of whether Seabrook should be granted a full power license.

If the Appeal Board considers that all technical safety issues related to full power operation were disposed of in its

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1987 review!of.the Licensing Board's low power licensing deci-

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.sion,2~it:rhould be aware that this would contradict the' position.

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.taken byL the Commission before the-United Stator' Court-of' Appeals ~

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in oppositionLto Intervenors' appeal of the Seaorook low-power J

. licensing decision.

According-to the Commission,Ethe NRC's'beci.

g sion on a technical safety issue thatlhad not been determined to I

bel" relevant" to low power operation under 10 C.F.R. 5 50.57(c) was not appealable in connection with the low power license.3

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fx, The Commission cannot:have it'both ways by, assert,ing.on the one l

hand thatLissues resolved in the low power decision were not.

final for purposes of appeal, and contending on the other. hand l

- that they were finall'f resolved for purposes of reopening the.

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j, record.

l-In'its decisions, the Appeal Board has " stressed a practi-l' L

cal,_- common sense approach to the resolution of such jurisdic-1 D

.t'ional(problems, taking into account ' efficiency in the disposi--

tion-of the matter at hand and fairness'to the parties.'"

Shoreham, suora, 28 NRC at 306, auctina. Louisiana Power & Licht i

C2x-(Waterford Steam Electric Station, Unit 3), ALAB-797, 21 NRC

,s 6,9- (1985), and citina Philadelohia Electric Co. (Limerick Gener-ating: Station, Units-1 and 2), ALAB-726, 17 NRC 755 (1983).

In this light, it is important to note the circular reasoning a

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ALAB-875, 26 NRC 251 (1987)

'3 Commonwealth of Massachusetts et al. v. NRC, No. 89-1306, NRC Brief at 38-39.

Copies of the relevant pages from the brief n

are attached.

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. i inherent ini these cases which' serves to deprive Section 2.734 (d)-

of any meaningful effect.

section 2.734(d) obviously con-s

' templates'that parties may raise new information, not previously; litigated, in motions to reopen tho' record.

However, that provi-sion is of no use whatsoever if the Appeal Board' refuses to con-

. sider any matters that are'not expressly pending before it and

- consi'ders all'other matters to have been finally resolved below.4

- Under-such an interpretation, new contentions-become casualties:

of catch-22 logic and the very purpose of providing for motions

to reopen the record, i.e. to allow the reception of new evidence relating to the safety of operation before licensing, is defeated.

Accordingly', Intervenors request the Appeal Board to assert its. jurisdiction over Intervenors' motion and undertake consider-ation on the merits.

In the alternative, Intervenors request that the-Appeal Board refer the contention without' prejudice to the Commission.5 i

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Egg, e, q.., North Anna, suora, 9 NRC at 708 (for both new issues and issues litigated earlier, "the decisive factor is whether except for those limited issues-as to which jurisdic-tion has been expressly retained, the case has been decided.")

But agg Louisian_a Power & Licht Co. (Waterford Stear Electric Station,' Unit 3), ALAB-753, 18 NRC 1321, 1329-30 (1983) and cases cited therein (A'ppeal Board may not revisit matters "snecifically addressed" in an earlier decision that is now administratively final.)

(Emphasis added)

In this case, the quality of Rosemount transmitters was never addressed in any

' earlier proceeding.

SI Copies of the motion were served on the Commission on February 28, 1990.

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Respectfully submitted, p

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7 HARMON, CURRAN & TOUSLEY -

1 2001'"S" Street N.W.

Suite 430-l

' Washington,3D.C.- 20009-(202);328-3500

'q March-7, 1990 CERTIFICATE OFiSERVICE:

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I. certify.that-on March 7,. 1990, copies.of the foregoing document were served on:the parties by hand, telefax, or-first -

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class mail as' indicated on the attached service list..

s Df5ne Curran t

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M' ORAL ARGUMENT SCHEDULED FOR APRIL 9, 1990 UN;TED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 89-1306 COMMONWEALTH OF MASSACHUSETTS ~, et al, Petitioners, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, BRIEF FOR NUCLEAR REGULATORY COMMISSIOt!

2 WILLIAM C. PARLER E.

LEO SLAGGIE General Counsel Special Counsel JOHN F. CORDES, JR.

JOHN CHO Solicitor Special Counsel

!!ARJORIE S. !!ORDLINGER Attorney U.S. Nuclear Regulatory Commission Washington, D.C.

20555 January 29, 1990 I

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s u..(( WRC) staff (see~p 13,psupra)-.and reiterated by petitioners in'

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' 71 thair > contention did via, ' vitiate the plan itself, fbut4 simply,

. ig T( pointed {up correctusle.ptoblemsDin the plan's' implementation.

Thus,Lunder the1"fundamenta11 flaw test,-these weaknesses'were not-sg coterial to;1icensing,-and;did not need to be litigated.

'i sPstitione'rs' position herefis. analogous to'saying that'if a

.pEysicalDinspectionrevealedthat a[numberLoffboltswere-e v

insufficiently tightened and.no more pervasive:or systemic problem

was;identifiedV the^ looseness of the bolts opens the inspection to i

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-full litigation, even thoughithe Commission can and will simply-q require'that they are. tightened before a license is issued.

This cpproach is. contrary.to common sense, as well as to NRC practice, fi J

LcndLought'noc be-required'by.this court.

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q "II.

PETITIONERS'= ATTACK 10N THE APPEALLBOARD'S INTERPRETATION OF-NECNP'S CONTENTION'IV-(COOLING' SYSTEM BLOCKAGE)"IS'NOT m

PROPERLY BEFORE THISl COURT ON A-CHALLENGE ~TO THE' LOW-POWER LICENSE, AND-INzANY, EVENT THE COMMISSION CORRECTLY CONSTRUED' pl THELCONTENTION

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. Petitioners' attempt:to have this Courttreverse-the Commission's interpretationlof-NECNP's cooling-system blockage.

I contention (ContentionTIV) fails at.the outset because petitioners.

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"did L not icont'es t the Licensing Board finding that the1 contention is fnot"relevantLeo safe operation of Seabrook at low power.

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L Statement of the case, supra, at 10-11, 17.

If petitioners

' disputed that finding, they could and should have challenged it i

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'(Footnote Continued).

balieves. warranted and corrective actions can be required or

" enforcement actions taken.

Safety matters will not be ignored by E

tho' Commission or the staff simply because they are not litigated.

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Lauring,. Appeal' Board review of the' Licensing' Board'sidecisionDof.

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Februaryzi7F 1988 reauthorizing low power ' operation.- They waived j

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Board.reauthorization onLpurely legal grounds,that the Appeal.

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h Board found without merit.x (Petitioners have not1 repeated those

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since tho' finding' stands uncontroverted j

that Contention IV.has1 no bearing'on the subject matter of>this petition for review,-namely low power operation'of seabrook, this Court'should dismiss petitioners arguments regarding Contention I

IV.

,If the Court sh'ould reach the merits, the Court-should find that_the NRC-correctly construed Contention IV as

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encompassing-only blockage-in the plant'stcooling system caused by.

J macrobiological aquatic organisms and debris:and not' coolant q

leakage caused'by microbiological 1y induced corrosion.27 L

In NRC operating license proceedings for nuclear

' - reacters,.the issues-to be heard _a't the hearing on a' license-o

application are. determined--by the,c,ontentions that:have been 4

admitted for litigation.- The' contention and its bases must be set L

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forth with reasonable specificity.

10 C.F.R. S 2.714(b)'.. The l-L purpose of this requirement, among.others, is to assure that~the contentionadequktelynotifiestheotherpartiesoftheissuesto 27Microbiological 1y-induced corrosion refers to corrosion.in cooling systems broyght about by the attack of extremely small marine organisms that pass through protective screens.

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. contrast to larger-" macro-organisms," by reason of their size these' organ-isms do not directly pose a blockage threat.

See

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j ALAC-892,.27 NRC at 488'n.8.

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SEABROOK SERVICE IJST 1 '

= Atomic Safety and ueensing '

Robert A.Backus,Esq.

Michael Santosuomeo, Chairman

,4 ' i *Alsa S. Rosenthal, Chairman Appeal Doard Panel :

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Board Panel '

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Silverglate, Gertner, et al.

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Commissioner Geoffrey M. fluntington, Esq.

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Comaissioner L Richard A. Ilampe, Esq.

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U.S. Nuclear Regulatory Commission Senator Gonion J. Ilumphrey llampe and McNicholas 7d O

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