ML20042D859
| ML20042D859 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 04/03/1990 |
| From: | Reis H FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#290-10206 LBP-90-04, LBP-90-05, LBP-90-4, LBP-90-5, OLA-4, NUDOCS 9004110083 | |
| Download: ML20042D859 (79) | |
Text
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~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION UitCE OF SECRETARY DOCXE im3. LuvK.I.
Gh;H ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
)
In the Matter of
)
)
)
Docket Nos. 50-250 OLA-4 FLORIDA POWER & LIGHT COMPANY
)
50-251 OLA-4
)
(Turkey Point Plant,
)
(P/T Limits)
Units 3 & 4)
)
)
)
LICENSEE'S BRIEF IN RESPONSE TO THE APPEALS OF THE LICENSING BOARD'S JANUARY 16, 1990 MEMORANDA AND ORDERS
)
h Harold F. Reis l
Steven P. Frantz Kenneth C. Manne Newman & Holtzinger, P.C.
1615 L Street, N.W.
Washington, D.C.
20036 (202) 955-6600
)
Co-Counsel John T. Butler Steel Hector & Davis 4000 Southeast Financial Center Miami,' Florida 33131 (305) 577-2800 90041200e3 900403 l
$DR ADOCK 050002500
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19 l
C) i i
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4 TABLE OF CONTENTS I
O Page TABLE OF AUTHORITIES.
...... iii INTRODUCTION.
1 PART ONE INTERVENORS' APPEAL I.
THE PROCEEDINGS BEFORE THE LICENSING BOARD.
2 O
A.
Background Of The Proceeding.
2 B.
The Licensing Board's Grant Of Summary 9
Disposition.
O II.
ARGUMENT.
18 A.
The Licensing Board's Grant Of Licensee's Motion For Summary Disposition And Dismissal Of The Turkey Point Pressure / Temperature Limits Proceeding Should Be Affirmed.
18 0
1.
Applicable Legal Standards.
18 2.
Intervenors' Response To Licensee's Motion For Summary Disposition Is Not Sufficient To Establish A Genuine Issue Of Material O
Fact Because The Response Does Not SLti&Iy The Requirements Of 10 CFR $ 2.749(b).
23 l
B.
Contrary To The Claims Of Intervenors, The Licensing Board Did Address The Views Of Dr. George Sih In Determining That A O
Difference Of Less Than 5 Percent In The Operating Times Between Turkey Point Units 3 and 4 Was Not Significant 28 C.
Contrary To The Arguments Of Intervenors, The Licensing Board Did Not Weigh The O
Evidence In Granting Licensee's Motion For Summary Disposition.
32 D.
Contrary To Intervenors' Claims, The Licensing Board Viewed The Evidence In A Light Most Favorable To Intervenors.
34 t
,0
-i-Q
i
)
E.
The Licensing Board Did Not Consider
)
Licensee's Reply To Intervenors' Response To Licensee's Motion For Summary Disposition.
37 F.
Contrary To The Arguments Of Intervenors, The Licensee And The NRC Staff Do Not
)
Disagree Over The Importance Of Differences In Flux Lot Numbers.
41 G.
The Licensing Board Was Correct In Concluding That Intervenors Were Challenging The Commission's Rule For An Integrated
)
Surveillance Program.
45 H.
Even If All Of Intervenors' Arguments Are Assumed To Be Correct, Summary Disposition Would Still Be Appropriate.
49
)
1.
Conclusion.
51 PART TWO PETITIONERS' APPEAL I.
PROCEEDINGS BEFORE THE LICENSING BOARD.
51
)
II.
ARGUMENT.
53 A.
Introduction.
53 B.
Petitioners' Arguments.
55 i
1.
Good Cause For Late Intervention.
55 2.
Assistance In Developing A Sound Record.
61 3.
Undue Delay And Broadening Of Issues.
64 C.
Conclusion.
66 SUMMATION.
67 i !
l r
l
i i
)
l 1
l TABLE OF AUTHORITIES
)
Cases Page(s)
Federal Cro? Insurance Corp. v. Merrill, 59 332 U.S. 310 (1947).
)
United States ex rel. Ott v. Shaughnessy, 27 l
~Tff F. Supp. 745 (S.D.N.Y. 1953).
)
NRC Adjudicatory Decisions Gulf States Utilities Co.
(River Bend Station, Units 1 and 2),
ALAB-183, 7 AEC 222 (1974).
22
)
Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1-4),
ALAB-526, 9 NRC 122 (1979).
57 Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant),
)
LBP-85-27A, 22 NRC 207 (1985).
20 Carolina Power & Light Co.
(Shearon Harris Nuclear Plant, Units 1 and 2),
LBP-84-7, 19 NRC 432, reconsideration denied on other grounds, LBP-84-15, 19 NRC 837 (1984).
21, 26 Cleveland Electric Illuminating Co., et al.
(Perry Nuclear Power Plant, Units 1 and 2),
ALAB-841, 24 NRC 64 (1986).
19, 25 t
Cleveland Electric Illuminating Co., et al.
(Perry Nuclear Power Plant, Units 1 and 2),
ALAB-443, 6 NRC 741 (1977).
19, 20, 26 Commonwealth Edison Co.
(Braidwood Nuclear Power Station, Units 1 and 2),
62 Consumers Power Co.
(Big Rock Point Nuclear Plant),
LBP-80-4, 11 NRC 117 (1980).
47
-111-
Detroit Edison Co., et al.
~
{}
(Enrico Termi Atomic Power Plant, Unit 2),
ALAB-707, 16 NRC 1760 (1982)................
54 Duke Power Co.
'(W11~11am B. McGuire Nuclear Station, Units 1 and 2),
ALAB-669, 15 NRC 453 (1982).
21 9
riorida Power & Light Co.
(St. Lucie Nuclear fower Plant, Unit 1),
ALAB-921, 30 NRC 177 (1989).
50 riorida Power & Light _Co.
g (St. Lucie Nuclear Power Plant, Unit 1),
LBP-88-10A, 27 NRC 452 (1988).
47 Plorida Power & Light Co.
(Turkey Point Nuclear Generating Plant, Units 3 and 4),
LBP-90-4, 31 NRC __ (January 16, 1990).
. passim O
riorida Power 6 Licht Co.
~TYUrkey Point Nuclear Generating Plant, Units 3 and 4),
LBP-90-5, 31 NRC __ (January 16, 1990).
. passim Florida Power & Light Co.
g (Turkey Point Nuclear Generating Plant, Units 3 and 4),
. passim Florida Power & Light Co.
(Turkey Point Nuclear Generating Plant, Units 3 and 4),
. 25 O
Florida Power 6 Light Co.
(Turkey Point Nuclear Generating Plant, Units 3 and 4),
. 47 Florida Power & Light Co.
~ (Turkey Point Nuclear Generating Plant, Units 3 and 4),
D DD-89-8, 30 NRC 220 (1989).
. 60 Houston Lighting 6 Power Co.
(Allens Creek Nuclear Generating Station, Unit 1),
ALAB-629, 13 NRC 75 (1981).
. 19 B
Houston Lighting & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590, 11 NRC 542 (1980).
22 D
-iv-l D
t
)
i l
Long Island Lighting Co.
l
)
(Janesport Nuclear Power Station, Units 1 and 2),
ALAB-292, 2 NRC 631 (1975).
59 Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1),
ALAB-743, 18 NRC 387 (1983).
53, 62, 64 I
)
Mississippi Power & Lscht Co., et al.
l (Grand Gulf Nuclear Station, Units 1 and 2),
t
. 62, 65 ALAB-704, 16 NRC 1725 (1982).
i Nuclear ruel Services, Inc.
i
)
(West Valley Reprocessing Plant),
. 54 i
Pacific Gas and Electric Co.
l (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-410, 5 NRC 1398 (1977).
21 Pennsylvania Power and Light Co.
(Susquehanna Steam Electric Station, Units 1 and 2),
l LBP-79-31, 10 NRC 597 (1979).
. 38 Philadelphia Electric Co., et al.
(Limerick"denersting Station, Unit 1),
)
LBP-86-6A, 23 NRC 165, vacated on other grounds, LBP-86-9, 23 NRC 273 (1986).
65 Philadelphia Electric Co., et al.
(Peach Bottom Atomic Power Station, Units 2 and 3),
l ALAB-701, 16 NRC 1517 (1982).
21 j
Portland General Electric Co., et al.
[
(Trojan Nuclear Plant),
aff'd, ALAB-534, 9 NRC 287 (1979).
44, 47 Portland General Electric Co., et al.
(Trojan Nuclear Plant),
l LBP-78-32, 8 NRC 413 (1978).
48 Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 28),
ALAB-554, 10 NRC 15 (1979).
. 18 l
Texas Utilities Electric Co., et al.
(Comanche Peak Steam Electric Station, Units 1 and 2),
CLI-88-12, 28 NRC 605 (1988), reconsideration denied, CLI-89-6, 29 NRC 348 (1989).
61
-v-i i
l l
)
Virginia Electric and Power Co.
I
)
(North Anna Nuclear Power Station, Units 1 and 2),
l ALAB-584, 11 NRC 451 (1980).
19 Washington Public Power Supply System. et al.
~(WPPSS Nuclear Project No. 3),
ALAB-747, 18 NRC 1167 {1983).
54
)
7 i
Statutes i
Administrative Procedure Act, 5 U.S.C.A. $ 556(d).
27
)
Atomic Energy Act $ 189a(2)(A), 42 U.S.C. $ 2239(a)(2)(A).
65 l
t Energy Reorganization Act of 1974, Section 210, 55
{
42 U.S.C $ 5851.
)
Federal Register Act, 44 U.S.C. $ 1508.
59 i
Regulations 10 CFR $ 2.206.
58, 60
)
4 10 CFR $ 2.707.
38 l
10 CFR $ 2.714(a).
54 10 CFR $ 2.714(a)(1).
52 i
10 CFR $ 2.714(a)(1)(iii).
62 10 CPR $ 2.714(a)(1)(v).
65 10 CFR $ 2.740(e).
38 10 CFR $ 2.749.
8, 18, 23, 24 10 CFR $ 2.749(a).
. 18, 19 t
10 CFR $ 2.749(b).
. passim 10 CFR $ 2.749(d).
22 40 i
10 CFR $ 2.758.
10 CFR $ 2.762.
1 l
-vi-I
)
i 10 CTR $ 50.7..
. 55 10 CTR $ 50.60(a).
. 10 10 CTR $ 50.61(b)(2).
.6 10 CTR $ 50.91(a)(4).
65
)
10 CTR Part 50 Appendix A, General Design criterion 31.
4, 10 10 CTR Part 50, Appendix G.
40, 49
)
10 CTR Part 50, Appendix G, $ II E.
39 10 CTR Part 50, Appendix G, $ III A.
39 10 CTR Part 50, Appendix G, 5 IV A.
39
)
10 CTR Part 50, Appendix H.
passim 10 CTR Part 50, Appendix H, $ II C.
6, 45, 46 Miscellaneous
)
American Society of Mechanical Engineers Code.
39, 40 American Society of Mechanical Engineers Code,
$ III, Appendix G-2110(a).
40 American Society of Mechanical Engineers Code,
$ III NB-2331.
39 American Society of Testing and Materials Code.
39, 40 re. R. Crv. P. 56.
18 rn. R. Evre. 702.
21 NRC Regulatory Guide 1.99, Revision 2
'; Radiation Embrittlement of Reactor Vessel Materials" (May 1988).
. 10, 49, 51 Notice of Consideration of Issuance of Amendment to fability Operating License, 53 red. Reg. 40,988 (October 19, 1988).
2, 52, 60 Statement of Policy on Conduct of Licensing Proceedings CLI-81-8, 13 NRC 452 (1981).
. 22
-vii-
' thomas J. Samorito v. Florida Power 6 Lieht Co.,
)
U.S. Department of Labor case Nos. 59-ERA-7 i
and 89-ERA-17 (June 30, 1989).
56 i
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UNITED STATES OF ABERICA NOCLEAR REGULATORY COMMISSION l
j A10NIC SAFETY AND LICENSING APPEAL DOARD I
)
)
l In the Matter of
)
)
Docket Nos. 50-250-OLA-4 i
FI4RIDA POWER & LIGNT COMPANY )
50-251-OLA-4
)
)
(Turkey Point Plant,
)
(P/T Limits)
Units 3 & 4)
)
I
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LICENSEE'S BRIEF IN RESPONSE TO TEE APPEALS OF TEE LICENSING i
BOARD'S JANUARY 16, 1990 MENORANDA AND_ ORDERS l
l INTRODUCTION f
Pursuant to the Atomic Safety and Licensing Appeal
)
Board's Order of February 12, 1990, and 10 CFR $ 2.762, Florida Power & Light Company ("TPL" or " Licensee") hereby submits this l
Brief in response to (1) an appeal of Joette Lorion and the
)
i Center for Nuclear Responsibility ("Intervenors") from an Atomic Safety and Licensing Board Memorandum and Order, dated January 16, 1990 (LBP-90-4, 31 NRC
) ("LBP-90-4"), granting Licensee's motion for summary disposition and dismissing this i
proceeding; and (2) a separate appeal from another Memorandum and Order of the same Licensing Board, also dated January 16, 1990 (LBP-90-5, 31 NRC
) ("LBP-90-S"), denying an untimely j
petition to intervene filed by Thomas J. Saporito, Jr. and the Nuclear Energy Accountability Project (" Petitioners").
This Brief is divided into two Parts.
Part One addresses the f
i 6
i
) Intervenors' appeal, and Part Two addresses the Petitioners'
)
appeal.
j PART ONE
)
INTERVENORS' APPEAL I.
TEE PROCEEDINGS BEFORE TER LICENSING BOARD f
)
A.
Background Of The Proceeding This proceeding was initiated by the Intervenors' timely filing on November 17, 1988, of a request for hearing and i
petition for leave to intervene in response to a Federal Register f
notice concerning FPL's application for amendment of the operating licenses for Turkey Point Units 3 and 4.
53 red. Reg.
)
40,988 (October 19, 1988).
The purpose of the application was to revise section 3.1.2 of the technical specifications contained in f
i the operating licenses for Turkey Point by incorporating new pressure / temperature ("P/T") limits for the reactor coolant system.
I The P/T limits take the form of parametric curves, i
t which depict the maximum permissible pressure for any specific operating temperature.
They ensure that, during normal operation (including reactor heatup, cooldown, and inservice and hydrostatic testing), the pressure and temperature of the reactor coolant are maintained within limits sufficient to ensure l
adequate margin against postulated brittle fracture of the reactor vessel.
The then current P/T limits were applicable only f
l f
)
- up to 10 affective full power years ("EFPY") of operation. 1/
)
The new P/T limits were to be applicable for up to 20 ETPY.
i On January 10, 1989, the NRC issued the requested operating license amendments and also a Safety Evaluation which
)
included a Final Determinatien of No Significant Hazards l
t Consideration with respect to the amendments. 2/
j Following Intervenors' submission of an amended
}
b
)
petition for leave to intervene proffering three contentions, 3/
{
and of responses by the Licensee 4/ and the NRC Staff, S/ and a l
prehearing conference and oral argument held on March 21, 1989,
)
I the Licensing Board issued a Memorandum and Order on June 8, 1989. 6/
The Licensing Board rejected, as beyond its jurisdiction, contention 1, which challenged the Staff's no f
)
i
/
An effective full power year ("ETPY") is defined as the
)
1 amount of energy produced by operation at full power continually for one year.
In general, due to outages and 3
operation at less than 100% power, a reactor will produce f
less than 1 EPPY during a calendar year.
/
See Letter dated January 10, 1989, from Gordon E. Edison 2
r (NXC) to W.F. Conway (FPL) re " Turkey Point Units 3 and 4 -
Issuance of Amendments Re Pressure and Temperature (P/T)
Limits."
t i
3/
Petitioners' Amended Request For Hearing And Petition For Leave To Intervene (February 17, 1989).
4/
Licensee's Response To Petitioners' Amended Request For A Hearing And Petition For Leave To Intervene (March 3, 1989).
5/
NRC Staff's Response To The Amended Request For Hearing And Petition For Leave To Intervene Of The Center For Nuclear Responsibility And Joette Lorion (March 9, 1989).
/
Florida Power & Light Co. (Turkey Point Nuclear Generating 6
Plant, Units 3 and 4), LBP-89-15, 29 NRC 493 (1989) ("LBP-89-15").
t l
i
) significant hazards consideration determination.
It admitted
)
Contentions 2 and 3, but significantly limited them. 2/
The admitted contentions each alleged that, for a number of reasons, the revised P/T limits are non-conservative and exceed the
)
requirements of General Design Criterion ("GDC") 31 of Appendix A to 10 CPR Part 50. 8/
Contention 3 was based upon an allegation that the P/T
)
limits had been calculated upon the basis of an inaccurate and non-conservative estimate of the percentage of copper content in the reactor vessel welds.
Following a meeting with the Licensee,
)
the Intervenors submitted a letter to the Licensing Board on September 8, 1989, acknowledging "that no copper content percentage was used to set the P/T limits.
" and withdrawing
)
I 2/
Id. at 499-506.
8 /.
Criterion 31 reads as follows:
Fracture prevention of reactor coolant pressure soundary.
The reactor coolant pressure boundary shall be designed with l
sufficient margin to assure that when stressed under operating, maintenance, testing, and postulated accident conditions (1) the boundary behaves in a nonbrittle manner and (2) the probability of rapidly propagating fracture is minimized.
The design shall reflect consideration of service temperatures and other conditions of the l
boundary material under operating, i
maintenance, testing, and postulated accident conditions and the uncertainties in
[
determining (1) material properties, (2) the l
effects of irradiction on material properties, (3) residual, steady state and transient stresses, and (4) size of flaws.
)
5 Contention 3. 9/
Consequently, the only contention remaining in
)
the proceeding is contention 2, which states:
J That the revised temperature / pressure limits that have been set for Turkey Point Unit 4 are non-conservative and will cause that reactor unit
)
to exceed the requirements of General Design i
Criterion 31 of Appendix A to 10 CFR Part 50, which requires that the reactor coolant pressure i
boundary be designed with a sufficient margin to insure that, when stressed under operating, maintenance, testing, and postulated accident
)
conditions, (1) the boundary behaves in a non-brittle manner and (2) the probability of a rapidly propagating fracture is miniml ed.
Petitioners contend that the new pressure / temperature limits could cause the
)
reactor vessel to exceed these requirements because the Licensee has based its calculation of the predicted RT for Unit 4 partly on surveillance capsule 7# test results from Turkey Point Unit 3 rather than predicting the RT for Unit 4 based on Unit
)
4 capsule V survefilance capsule data--a practice which is not scientific, not valid, and could cause the Unit 4 reactor to behave in a brittle manner which would make the chances of a pressure vessel failure and resultant meltdown more likely.
Petitioners contend that predictions of RT and f
pressure / temperature limits deEived from the shift in nil-ductility transfer should be based only on plant-specific Unit 4 data, especially in light of the fact that the only
[
tests ever performed on Unit 4 weld specimens i
demonstrated that the weld material in the Unit 4 vessel was 30% more brittle than that i
of Unit 3.
Because Unit 4's weld material is 1
more embrittled, Petitioners contend that the l
l TPL Integrated Surveillance program does not meet the Requirements of 10 CTR Appendix G i
Parts V.A and V.B, and 10 CTR Appendix H, including Appendix H Parts IIC and IIIB.
Finally, Petitioners contend that the I
surveillance capsule V for Unit 4 should be r
tested to establish the new pressure /
i
/
See Letter dated September 8, 1989 from Joette Lorion to the 9
UIcensing Board members.
l l
) temprature limits and should the testing
)
indlcate that the RT for Unit 4 has passed the 300-degree FahreE$eit screening criterion set by the NRC, Unit 4 should be shut down until it is demonstrated that the Unit 4 reactor pressure vessel can maintain its integrity beyond this limit. 10/
)
In admitting Contention 2, the Licensing Board upheld a number of objections by both TPL and the Staff to parts of Contention 2.
These included objections to that part of the
)
Contention related to whether the screening temperature of 300*F, established by 10 CTR $ 50.61(b)(2) for purposes of ensuring adequate protection against a pressurized thermal shock event, had been exceeded.
The Board held that the subject of the instant proceeding relates only to a modification of the P/T limits during normal operation, governed by 10 CFR
$50.60, and does not include a determination-of fracture toughness requirements for pressurized thermal shock which is an accident condition governed by 10 CTR $50.61.
This part of Petitioners' contention is therefore beyond the scope of this hearing and cannot be admitted. 11/
Both the Licensee and the Staff also objected to contention 2 to the extent that it challenged the Integrated Surveillance Program for the Turkey Point units, on the grounds that such a challenge constituted an impermissible attack upon a Commission rule 12/ permitting integrated survelliance programs, 1_0/
LBP-89-15 at 500-01.
0 11/
Id. at 504.
12/
10 CTR Part 50, Appendix H,
$ II C.
i
)
~7-and that the Integrated Surveillance Program had been authorized for those units by operating license amendments issued in 1985 and its acceptance is not subject to reconsideration.
The Licensing Board agreed.
Consequently, although the Licensing Board did not reject Contention 2 entirely, it limited it to whether Licensee's conduct of its integrated surveillance program satisfies regulatory requirements.
Two subissues
)
subsumed in that question ares (1) whether the Turkey Point integrated surveillance program has an adequate contingency plant and (2) whether a " difference of less than 5% in the operating time between the two units is simply not significant and cannot form a y
basis for the contention." 13/
The Intervenors do not in this appeal and, have not at any time, taken issue with or sought review of any of the rulings of the
)
Licensing Board in LBP-89-15.
On September 11, 1989, TPL filed " Licensee's Motion Tor Summary Disposition of Intervenors' contentions."
In support of the motion, Licensee filed " Licensee's Statement of Material 3
Tacts As To Which There Is No Genuine Issue To Be Heard With Respect To Intervenors' Contentions" and the " Affidavit Qf Stephen A. Collard On Contentions 2 And 3" (" Collard Affidavit").
j On October 19, 1989, the NRC Staff filed " Response Of NRC Staff In Support Of Licensee's Motion Tor Summary Disposition" ("NRC Staff's Response").
The Staff's Response agreed that there existed no genuine iscue of material fact and that the Licensee was entitled to a favorable decision on Contention 2 as a matter f
13/
LBP-90-4 at 5 (emphasis in original); see also LBP-89-15 at l
502-03.
l I
1
) of law.
In support of its response, the Staff submitted
)
" Affidavit In Support Of NRC Staff's Response To Licensee's
)
Motion For Summary Disposition" ("Elliot Affidavit").
Also on October 19, 1989, Intervenors filed, in l
)
opposition to Licensee's motion for summary disposition, f
"Intervenors' Response To Licensee's Motion For Summary Disposition Of Intervenors' Contentions" ("Intervenors' i
)
i Response").
That response included "Intervenors' Statement Of Material Facts As To Which There Is A Genuine Issue To Be Heard With Respect To Intervenors' Contention 2" ("Intervenors'
)
Statement"), the " Affidavit Of Joette Lorion On Contention No.
2"
("Lorion Affidavit"), and numerous documents, excerpts from documents, and a letter from Dr. George Sih dated October 18, 1989.
On January 16, 1990, the Licensing Board issued LBP-90-4 granting Licensee's motion for summary disposition and
/
dismissing the proceeding, finding that, pursuant to 10 CFR
$ 2.749, FPL had met its burden of proof; that Intervenors had l
raised no genuine issues of material fact; and that the Licensee was entitled to a decision as a matter of law. M /
Finally, on i
March 5, 1990, Intervenors filed "The Center for Nuclear i
Responsibility's and Joette Lorion's Brief In Support Of Their i
Appeal Of The Licensing Board Order Granting Summary Disposition Of Intervenors' Contention 2 and Dismissing The Proceeding"
[
j
("Intervenors' Brief").
i M/
LBP-90-4 at 36.
l
h 1
.p.
3.
The Licensine Board's Grant of summary Disposition
)
In reaching its decision, the Licensing Board reviewed the positions of the parties in the light of its description of the technical considerations involved and the regulatory requirements which the NRC had imposed.
With respect to the former, the Licensing Board pointed out that the P/T limits are designed to ensure that the reactor coolant's pressure and
)
temperature during normal operating conditions "are restricted so as not to pose the threat of brittle fracture of the reactor vessels" and that resistance to such fracture is a function of
)
the chemical composition of the metal from which the reactor is manufactured, the temperature of the metal, and its neutron irradiation. 15/
The Board went on to explain that it was undisputed that fracture toughness decreases with decreases in temperatures, with increases in copper and nickel content and with increaset in neutron fluence. 16/
It further explained that the effect of changes in temperature "are measured by a standardized test known as a Charpy V-notch tests" that there exists a transition range of temperatures where the " metal's behavior turns from ductile, or fracture resistant, to brittle;"
and that the " Reference Temperature for Nil Ductility Transition (RT,y) is a standardized temperature selected to identify that 15/
Id. at 6.
16/
Id. at 6, 28.
As explained by the Licensing Board, for purpose of irradiation damage, neutron fluence is defined as "the total number of fast neutrons that have impacted on the metal as a result of operating the reactor."
l
)
. i transition.
" 17/
It also pointed out that one measure of
)
fracture toughness is the " Adjusted Reference Temperature"
(" ART"), which is the change in RT of the reactor vessel due to m3 neutron irradiation.
The Board noted that the NRC prescribes a i
method for calculating ART in NRC Regulatory Guide 1.99, Revision 2, " Radiation Embrittlement of Reactor Vessel Materials" (May 1988).
With respect to neutron irradiation, the Board
)
explained that fast neutrons, colliding with atoms within a metal, dislodge the atoms in the metallic lattice, thereby reducing the fracture toughness and increasing the RT of the gy metal. 18/
LBP-90-4 went on to point out that "[t]he NRC regulatory scheme establishing metallurgical requirements for I
reactor pressure vessels and a testing methodology for insuring that those requirements are met is set out in 10 C.F.R. Part 50 (1989)." 19/
It also explained that to meet the criteria established by GDC 31, 10 CFR $ 50.60(a) requires that
... all lightwater nuclear power reactors must meet the fracture toughness and material surveillance program requirements for the reactor coolant pressure boundary set forth in Appendices G and H to this part.
Appendix G,
" Fracture Toughness Requirements", specifies requirements for ferritic materials, i.e.,
various carbon, 11/
Id. at 7-8.
18/
Id. at 9-10.
19/
Id. at 10.
I
)
i
! stainless and alloy steels, over the life of
)
their service as a pressure containment boundary.
To satisfy these fracture toughness requirements, Appendix G requires that the material be tested in accordance with procedures set out in Appendix H.
The Appendix H tests must show that certain 1
)
predicted fracture toughness values will be
{
satisfied at the end of the service period, in this case 20 effective full power years (ETPY).
10 C.F.R. Part 50, Appendix G.
Both j
Appendices rely on and incorporate by reference standard codes and procedures of
)
the American Society of Mechanical Engineers i
(ASME) and the American Society for Testing and Materials [ ASTM)
Appendix H authorizes use of an j
integrated surveillance program (ISP) for
)
testing materials "for a set of reactors that have similar design and operating features."
Appendix H, 1 II.C.
Under the ISP, irradiated test materials from one reactor may be used to predict the fracture toughness of the materials in both reactors.
The ISP l
)
must be approved by the NRC Staff, and it l
must have a contingency plan
... to assure that the surveillance program for each reactor will not be jeopardized by operation at reduced power level or by an i
)
extended outage of another reactor from which data are expected.
l Appendix H. 1 II.C.3.
Licensee's technical specifications for j
the Turkey Point units require it to calculate P/T limits for those reactor vessels based on the Adjusted Reference Temperature (ART) for the vessels using the method described in Appendix G to the American Society for Mechanical Engineers code.
The methodologies used to calculate both ART and the P/T limits for Turkey Point contain a number of conservatisms, intended i
to establish a large margin of safety.
- See, i
l l
I
) generally Regulatory Guide 1.99, Rev. 2 (May
)
1988). 20/
The Licensing Board also noted that the P/T limits for a reactor vessel arm periodically-revised to take into account additional
)
test data from the surveillance program which reflect the changes in fracture toughness due to neutron irradiation. 21/
With respect to Turkey Point, the Licensing Board
)
described the Turkey Point reactor vessels, noting that:
[t]he designs of the reactor vessels for Turkey Point Units 3 and 4 are identical.
The reactor vessels are cylindrical in shape, with hemi-spherical domes at each end of the cylinders.
)
The reactor vessels are approximately 40 feet high and 14 feet in diameter.
The reactor vessels are constructed of carbon steel almost eight inches thick, with a.156 inch (minimum) stainless steel cladding on the inside wall.
The internal designs of the reactor vessels for Turkey Point Units 3 and 4 are also identical.
Each reactor vessel has a reactor core with space for 157 fuel assemblies.
Additionally, each reactor
/
vessel has a thermal shield between the reactor core and the reactor vessel wall.
The purpose of the thermal shield is to i
reduce the impact on the reactor vessel wall of neutrons escaping from the reactor core.
i M/
l l
l 20/
Id. at 11-12.
21/
Id. at 13.
I 22/
Id. at 13-14 (quoting Collard Affidavit, 11 3-6).
I
) The Board also stated that the most limiting material in the Turkey Point reactor vessel is the weld material. 23/
The Board went on to explain that it was undisputed that 1
(alt the beginning of operation, Turkey Point
)
Units 3 and 4 each had eight reactor surveillance capsules containing material specimens and dosimeters.
In each unit, five of the eight capsules contained material specimens of the shell forgings of the reactor vessel; the remaining three capsules
)
contained material specimens of the shell forgings, the reactor welds, and material in the heat affected zones around the welds.
Collard, 1 37.
In 1985, the NRC issued license amendments authorizing Turkey Point to conduct an integrated surveillance
)
program.
Under this program, the results of tests of the surveillance capsules from each unit are combined to predict the fracture toughness of the reactor vessels for Turkey Point Units 3 and 4.
Collard, 11 6, 44-45.
)
To date, three capsules containing weld specimens have been removed from Turkey Point Units 3 and 4, namely Capsule T from Unit 4 and Capsules T and V from Unit 3.
Weld material is the critical material for
)
purposes of calculating the Turkey Point P/T curves.
Collard, 11 27, 42.
The measured results from all surveillance capsules are as follows:
Table 2 I
Results of Charpy V-Notch Tests for Weld Capsules From Turkey Point Units 3 and 4 Date of Capsule Delta 2
Qah Caosule Test Pluence f n/cm ),
R&
- 3 T
1975 5.68 x 10"
'155'T 4
T 1975-76 6.05 x 10" 225'F 3
V 1985-1986 1.229 x 10" 180*r
- (Measured at 30 ft-lbs) 23/
Id,. at 14.
) Collard Affidavit, p. 30.
The measured results from Capsules T and V from " nit 3 fell within the predicted bounds.
Collard, t 43. M /
)
In light of this explanation, the Licensing Board went on to examine each of the arguments made by the Intervenors relating to Contention 2 as it had been limited.
With respect to
)
each argument, the Licensing Board determined that Intervenors had failed to raise a genuine issue of material fact.
First, Intervenors argued that the difference of less
)
i than 5 percent in operating time between Turkey Point Units 3 and l
4 is significant.
The Licensing Board determined that the argument, in part, is essentially a challenge to the Integrated l
I Surveillance Program. M /
In particular, to the extent Intervenors were attacking the difference in operating times and
[
capacity factors prior to the NRC's acceptance of the Integrated Surveillance Program when it issued the operating license j
amendments in 1985, the Licensing Board determined that such an attack is impermissible because it goes to matters that have l
already been settled and is beyond the scope of the proceeding.
l M/
Therefore, the Licensing Board only considered the differences in operating times between the two reactors since l
M /
M. at 27-29.
M /
M. at 33.
M/
Id.
i l
l
1
) 1985, and whether these differences would require the
)
i implementation of Turkey Point's contingency plan.
j With respect to the differences in operating times i
J since 1985, the Licensing Board noted that operating differences 1
between the two reactors are important only to the extent that l
they affect the total fluence received by each reactor, because l
total fluence is the most accurate measure of the effects of l
)
irradiation. 27/
As noted by the Licensing Board, in 1985, at the time of the NRC's acceptance of Turkey Point's Integrated Surveillance Program, the difference in total fluence and EFPY for Units 3 and 4 was less than 10 percent.
Since that time, the difference in total predicted fluence through the end of 1990 has decreased to 3 percent. 28/
Therefore, the Licensing Board determined that the less than 5 percent difference in operating i
i time between Turkey Point Units 3 and 4 is not significant:
"(blecause the difference in operating features between the two
[
Turkey Point reactors was acceptable in 1985, we find, a fortiori, that a smaller difference today remains acceptable."
l 29/
i Intervenors also argued that TPL failed to consider
(
i j
matters like strain rate, differences in fuel core loading patterns and annual capacity factors between Units 3 and t, and i
l
-~/
Id. at 34 (noting that Licensee agrees that there are 27 differences in operating times between Turkey Point Units 3 I
and 4).
i 28/
Id. (citing Collard Affidavit, it 59-62).
(
29/
Id. (emphasis in original).
l I
1
) the effects of two overpressurization events at Unit 4 in 1981.
M/
In examining these issues, the Licensing Board determined that they are matters that are not required by the Commission's testing regimen under Part 50 or are accounted for in the
)
integrated surveillance program testing methodology employed at Turkey Point. M/
With respect to Intervenors' assertions on the importance of strain rate, the Licensing Board determined that
)
"nowhere in the methodology for measuring and predicting fracture toughness for normal operations and postulated accidents is there any requirement to measure strain rate.
" M/
)
Additionally, in examining the differences in fuel loading patterns and annual capacity factors at Turkey Point Units 3 and 4, the Licensing Board held that there are no requirements in the Commission's regulations to make separate calculations for these differences.
Citing FPL's motion for summary disposition and the NRC Staff's Response, the Licensing Board stated that differences in fuel loading patterns and annual capacity factors are " subsumed in the calculation of total j
fluence made at the time the surveillance capsules are recovered for testing under the ISP.
That calculation takes into account the entire history of measured results since both units began operation, see, generally, Collard and Elliot Affidavits." M/
l M/ M. at 30.
l M /
M. at 32.
M/ M.
3_3,/
M. at 33.
3
)
I ;
Next, Intervenors asserted that there is a difference in the RT, for Unit 3 Capsule T and Unit 4 Capsule T, and th12 g
difference shows that Unit 4 is more embrittled than Unit 3. The Licensing Board determined that this difference in RT did not gy
)
constitute a genuine issue of material fact.
In making this determination, the Licensing Board noted that Intervenors' objection to the difference in RT for Unit 4 capsule T " simply gg
)
misapprehends the significance of the measured result in the context of the methodology." 34/
In this context, the Licensing Board noted that the Elliot Affidavit pointed out that the measured increase in the RT of Unit 4 Capsule T was within the gy range of scatter expected for the data and that even though this data exceeded the mean expected value, it still fell within two standard deviations as provided for in NRC Regulatory Guide 1.99, Revision 2.
Therefore, the Board held that the results from Unit i
4 Capsule T provide credible data for inclusion in Turkey Point's Integrated Surveillance Program.
As also noted by the Licensing Board, the results from Unit 4 capsule T have been included in predicting the P/T limits in accordance with Turkey Point's Integrated Surveillance Program which uses data derived from both units. 35/
Tinally, Intervenors argued that TPL is not in compliance with the requirements for an integrated surveillance 24/
Id. at 31.
35/
Id.
tt 18-20; Collard Affidavit, 1 73).(citing Elliot Affidavit,
~~
) program because TPL does not have a separate document entitled
" contingency plan."
However, the Licensing Board determined that Appendix H's requirement for a contingency plan is satisfied by the existence of two similar units each containing surveillance
)
capsules. 36/ The Licensing Board could find no requirement in Appendix H for a separate written document describing a contingency plan, beyond the description of the Integrated
)
Surveillance Program contained in the Turkey Point technical specifications. 37/
Pursuant to 10 CTR $ 2.749, the Licensing Board
)
determined that FPL had met its burden of proof on Contention 2 because Intervenors had not raised any genuine issues of material fact.
Therefore, the Licensing Board dismissed the proceeding.
II.
ARGUMENT A.
The Licensing Board's Grant Of Licensee's Motion For Summary Disposition And Dismissal Of The Turkey Point Pressure / Temperature Limits Proceeding Should Be Affirmed 1.
Applicable Legal Standards Summary disposition of contentions in NRC proceedings is governed by 10 CPR $ 2.749. 38/
Under 10 CPR $ 2.749(a), any 36/
Id. at 35.
37/
Id.
38/
The standards for summary disposition under 10 CPR $ 2.749
~~
l are similar to those standards for summary judgment under Rule 56 of the rederal Rules of Civil Procedure.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, (continued...)
l l
l
i l
) '
party may move, with or without supporting affidavits, for a
)
decision in its favor as to all or any part of the matters involved in the proceeding.
Such a motion must be accompanied by "a separate, short and concise statement of the material facts as
)
I to which.
. there is no genuine issue to be heard."
10 CTR $
2.749(a).
Any other party may support or oppose the motion.
If a party opposes the motion, that party must file its own
)
statement of the material facts as to which it contends there is a genuine issue to be heard.
Material facts are deemed to be admitted unless controverted by the opposing party.
Id.
Under 10 CFR $ 2.749(b), when a motion for summary disposition is filed and is supported by affidavits, "a party opposing the motion may not rest upon the mere allegations or denials of his answer."
Instead, the opposing party's " answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact."
Id see also Cleveland Electric Illuminating Co., et al.
(Perry Nuclear Power Plant Units 1 and 2), ALAB-841, 24 NRC 64, 93 (1986)
Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-629, 13 NRC 75, 77-78 (1981);
Virginia Electric and Power Co. (North Anna Nuclear Power i
I
~~/(... continued) 38 1B, and 2B), ALAB-554, 10 NRC 15, 20 n.17 (1979): Cleveland l
Electric Illuminating Co., et al. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977).
(
l I
) Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453 (1980). 39/
Additionally, mere allegations or denials are not sufficient to establish a genuine issue of material fact.
Id.
Statements by the counsel or representative of a party
)
are not admissible as evidence unless it is demonstrated that the individual in question is competent to testify as to the statements.
Therefore, such statements are not sufficient to
)
defeat a motion for summary disposition that is supported by affidavits.
Cleveland Electric Illuminating Co., ALAB-443, 6 NRC at 754-56.
See also Carolina Power and Light Co. (Shearon Harris
)
Nuclear Plant), LBP-85-27A, 22 NRC 207, 229, 231 (1985).
- Also, documents that are intended as a substitute for an affidavit are subject to "the same evidentiary requirements as an affidavit Cleveland Electric Illuminating Co., ALAB-443, 6 NRC at 755, 40/
-/
Intervenors assert that they are entitled to a hearing 39 because pressure vessel embrittlement is a significant safety issue that demands a hearing.
Intervenors' Brief at 2.
However significant a matter, Intervenors must be able to show that a genuine issue of material fact exists in order to be entitled to a hearing.
They failed to do so in this proceeding.
40/
Because the regulations require an opposing party to file affidavits or other forms of evidence, it is not enough for the opposing party to rely on quotations from or citations to published research because such quotations are not
" evidence" absent an affidavit from the author.
Carolina 4
Power & Light Co. (Shearon Harris Nuclear Plant, Units 1 and 2), LBP-84-7, 19 NRC 432, 435-36 (citing Wright, Miller &
Kane, Federal Practice and Procedure $ 2722, (1983)),
reconsideration denied on other grounds, LBP-84-15, 19 NRC 1
837, 838 (1984).
Furthermore, copies of the published work l
of researchers are not admissible as substantive evidence at hearing unless the researchers themselves are produced as (continued...)
i l
i
)
i i,
r Moreover, if a party submits an affidavit in opposition to a motion for summary disposition, 10 CTR $ 2.749(b) requires that the affidavit " set forth such facts as would be admissible
[
in evidence and shall show affirmatively that the affiant is l
)
f competent to testify to the matters stated therein."
Cleveland f
Electric 111uminatina Co., ALAB-443, 6 NRC at 754-56.
If such an affidavit or other evidence is not filed by an opposing party, y
)
summary disposition shall be granted, if appropriate.
10 CTR $
j 2.749(b).
In judging whether information is admissible and whether a person is competent to testify, the Commission has 1
adopted the expert witness standards set forth in Rule 702 of the rederal Rules of Evidence.
Philadelphia Electric Co., et,al.
i (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-701, 16 l
NRC 1517, 1524 (1982): Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982).
Rule f
702 states:
l If scientific technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness j
qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
i The party sponsoring a witness, including an affiant, "has the burden of demonstrating his expertise" under this standard.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear i
~/(... continued) 40 I
supporting witnesses.
Carolina Power & Light Co.,
(Sheaton Harris Nuclear Plant, Units 1 and 2), LBP-84-7, 19 NRC 432, 436, reconsideration denied on other grounds, LBP-84-15, 19 i
j NRC 837 (1984).
l l
I
)
f
~22-Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398, 1405 (1977).
l Turthermore, a person not otherwise competent does not become so i
because he has studied "the problems of nuclear power" for a number of years, Philadelphia Electric Co., 16 NRC at 1523-24:
because he has spent years reading NRC documents, Duke Power Co.,
15 NRC at 475; or because he has an ability to understand and evaluate technical matters.
Id.
Instead, a person is competent
)
to testify only if, through experience or education, he has acquired "special" knowledge or skill " germane to the matters which his proposed testimony" addresses sufficient to qualify him I
)
as an expert.
See Philadelphia Electric Co., 16 NRC at 1524; l
Duke Power Co., 15 NRC at 475.
Pursuant to 10 CFR $ 2.749(d), summary disposition is
)
appropriate if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any
)
material fact and that the moving party is entitled to a decision as a matter of law.
The Commission has encouraged the use of the summary disposition procedure "so that evidentiary hearing time is not unnecessarily devoted to" issues where there is no genuine issue of material fact.
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 457 (1981).
The Appeal Board has also endorsed the use of summary disposition as "an efficacious means i
of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues."
Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, l
)
I t
1 11 NRC 542, 550 (1980): gee also Gulf States _ Utilities Co. (River l
)
Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 228 (1974).
- The Licensing Board, in a thirty-eight page Memorandum f
and order providing an ample explanation of the legal and factual
)
bases for its conclusions, determined pursuant to 10 CTR $ 2.749 that the Licensee met its burden of proof on Intervenors' contention 2 that Intervenors had not raised a genuine issue of
)
material facts and that Licensee was entitled to a decision in l
favor of its motion for summary disposition as a matter of law.
41/ As demonstrated in more detail below, the Licensing Board's
)
decision is correct as a matter of fact and law, and Intervenors have not provided any valid reason for disturbing this decision.
l Therefore, the Appeal Board should affirm the Licensing Board's
)
Memorandum and order granting summary disposition and dismissing j
the Turkey Point P/T limits proceeding.
2.
Intervenors' Response To Licensee's Motion For Summary Disposition Is Not Sufficient To Establish l
A Genu;,ne Issue Of Material Fact Because The Response Does Not Satisfy The Requirements Of 10 CFR $ 2.749(b)
As discussed above, when a motion for summary i
disposition is supported by an affidavit, a party opposing the l
motion may not rest on mere allegations or denials but instead must submit evidentiary material establishing a genuine issue of l
I
-/
LBP-90-4 at 36.
The Board also noted that it was satisfied t
41 that the public health and safety will be protected under Licensee's conduct of its Integrated Surveillance Program.
t Id.
l
I T
O material fact.
Intervenors' Response did not comply with this requirement.
As a result, the Licensing Board stated that it was tempted to (and could well) decide this case in Licensee's favor on the basis of the absence of a sworn affidavit by a qualified tvffiant in support C) of Intervenors' opposition to Licensee's motion, concluding that Licensee is entitled to a decision pursuant to 10 C.F.R. 2.749(b) for failure to oppose the motion as required.
Virginia Electric Power Co., 11 NRC 451 (ALAB-584, 1980). 42/
()
However, the Licensing Board declined its own invitation to grant Licensee's motion on this basis, and instead considered whether the t.11egation> nade by Interstnors raised a genuine issue of
()
material fact. dJ/
As explained below, che Licensing Board was entirely correct in stating that Intervenors' Response did not satisfy the
()
requirements of the 10 CFR $ 2.749.
The Licensee submits that the Appeal Board should uphold the grant of summary disposition on this basis alone.
()
Intervenors' Response did not contain anything that is i
admissible into evidence.
Intervenors' Response is comprised of the following: 1) the Response itself and the Intervenors'
)
Statement of Material Facts ("Intervenvrs' Statement"); 2) the Lorion Affidavit; and 3) numerous documents and excerpts from C) 42/
Id. at 30-31.
-/
Id. at 31-36.
Intervenors claim that the Licensing Board 43 BTd not consider the issues raised by Intervenors because the Board found that they did not supply any admissible evidence.
Intervenors' Brief at 20-23.
This claim is O
obviously incorrect.
Pages 31 to 36 of LBP-90-4 are devoted to a discussion of Intervenors' issues.
i O
l
-2S-documents e,ttached as exhibits.
None of these is admissible as evidence.
First, Intervenors' Response and Intervenors' Statement merely contain allegations and assertions of a party.
They do not set forth specific facts that would be admissible in evidence under 10 CFR S 2.749(b).
Therefore, in accordance with Cleveland Electric Illuminating Co., ALAB-841, 24 NRC at 93, these documents are not sufficient to establish a genuine issue of material fact. 44/
Second, the Lorion Affidavit is not admissible as
=
evidence in this proceeding because it fails to meet the requirements of an affidavit pursuant to 10 CFR S 2.749(b).
That section provides that "(alffidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is cumpetent to testify to the matters stated' therein."
10 CFR S 2.749(b).
The Lorion Affidavit fails on both counts.
The affidavit is only two pages long and does not set forth any admissible facts.
The affidavit only contains a number of statements by Ms. Lorion, none of which factually discusses
-/
Intervenors' Brief at 21-22, cites Florida Power & Light Co.
44 (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-
)
85-29, 22 NRC 300, 305 (1985) for the proposition that an opponent of a motion for summary disposition need not supply affidavits from individuals who are competent to testify as experts.
This decision is contrary to the decisions of the Appeal Board cited above, and it should be rejected.
I obviously, if an opposing party were permitted to defeat a i
motion for summary disposition based upon the mere allegations of the party or based upon the allegations of an affiant who does not qualify as an expert, summary l
disposition would not, in practice, be a viable method for i
disposing of a contention on its merits.
j l
the issues in this proceeding, and it only states that it
" incorporate (s)
. by reference" Intervenors' Response.
'E Moreover, as noted by the Licensing Board, the affidavit who.lly 3
i fails to establish that Ms. Lorion is competent to testify to the 4
matters asserted in Intervenors' Response.
As the Licensing Board stated:
Ms. Lorion does not claim any expertise in metallurgy, or in materials or mechanical engineering.
Nor does she provide any indication of training or specific experience, other than her intervention efforts, that would qualify her to address the technical issues in this proceeding within the meaning of 10 C.F.R.
2.749(b) (1989).
We cannot find her to be competent for subsection (b) purposes. 45/
Therefore, the Lorion Affidavit does not qualify as evidentiary material sufficient to satisfy the requirements of 10 CFR S 2.749(b).
Finally, the documents and excerpts from documents attached to the Intervenars' Response do not qualify as evidence in this proceeding.
None of these documents and excerpts is supported by an affidavit from the author of the document attesting to the truthfulness of the statements contained in the i
i documents. 46/
Therefore, in accordance with Cleveland Electric Illuminating Co., ALAB-443, 6 NRC at 755, and Carolina Power &
~/
LBP-90-4 at 20; See also Cleveland Electric Illuminatinq 45 Co., ALAB-443, 6 NRC at 754-56.
~~/ Ms. Lorion's statement in her affidavit that she " prepared 46 1
the exhibits attached to Intervenors' Response To Licensee's Motion For Summary Disposition and (testified) that each extract of a document, to the best of (her) knowledge, was taken from the document that is listed as the exhibit," does not meet this requirement.
Such a statement does not attest to the truth of the statements in these documents.
I
) Light Co., LBP-84-7, 19 NRC at 435-36, these documents are insufficient to oppose a motion for summary disposition.
In particular, Intervenors rely heavily upon an October 18, 1989 letter from Dr. Sih. 47/
This letter is not accompanied by an affidavit 48/ from Dr. Sih or by any other evidentiary material attesting to the truthfulness of the information in the letter. _4_9/
It is therefore not sufficient to defeat a motion
)
for summary disposition. 50/
In summary, the Intervenors' Response did not offer any information that would qualify as evidence in opposition to
)
Licensee's Motion for Summary Disposition.
Therefore, the Appeal Board should affirm the Licensing Board's decision on this basis i
)
47/
Intervenors' Response at 27-29.
/
-/
LBP-90-4 at 19.
The Licensing Board also noted that Dr.
48 Sih's October 15, 1985 letter relied on by Intervenors was not accompanied by an affidavit.
Id.
-/
Intervenors' Brief at 12-13, states that Dr. Sih's letter 49 should be considered because it is not " irrelevant, immaterial, or unduly repetitious evidence," citing 5 U.S.C.A. S 556(d) and United States ex rel. Ott tr.
Shaughnessy, 116 F. Supp. 745, 750 (S.D.N.Y. 1953) (which discusses the admissibility of hearsay evidence in administrative proceeding).
However, the issue here is not what type of evidence should or should not be excluded from administrative proceedings generally.
The issue is what is required to support an opposition to a motion for summary disposition.
l
-/
Additionally, there is no indication that Dr. Sih is 1
50 qualified to render an opinion on the impacts of neutron I
irradiation on reactor vessel metals.
The " Biography" attached to Dr. Sih's letter of October 18, 1989, discusses Dr. Sih's experience in fracture mechanics, but it does not identify any experience or education related to the effects of neutron irradiation.
..... _......... _... _ _..... _... alone. 51/
Nevertheless, as discussed below, even if the Appeal Board were to consider Intervenors' Response, affirmation of the Licensing Board's decision would still be in order.
B.
Centrary To The Claims Of Intervenors, The Licensing Board Did Address The Views Of Dr. George Sih In Determining That A Difference Of Less Than 5 Percent In The Operating Times Between Turkey Point Units 3 and 4 Was Not Significant Intervenors argue that the Licensing Board did not consider the views of Dr. Sih on the issue of whether a 5 percent difference in operating times between Turkey Point Units 3 and 4 is significant. 52/
Intervenors' arguments in this regard are totally inaccurate.
As demonstrated below, the Licensing Board adequately addressed the views of Dr. Sih in determining that a difference of less than 5 percent in the operating times between Turkey Point Units 3 and 4 is not significant. 53/
Intervenors' Brief at 13-14 states that the following i
information from Dr. Sih's letter of October 18, 1989 establishes a genuine issue of material fact:
For it is clear from page 3 of Dr. Sih's letter and the attached graph that his
-~/
Intervenors' Brief at 14-15, attempts to excuse the lack of 51 an affidavit from Dr. Sih on the basis that Intervenors are pro se litigants.
However, this is the fourth proceeding InvoTving Turkey Point in which Intervenors have participated, and in each proceeding summary disposition has been utilized.
Thus, Intervenors are familiar with the rules and procedures governing summary disposition, as evidenced by the fact that Ms. Lorion herself submitted an i
affidavit in support of Intervenors' Response.
I 52/
Intervenors' Brief at 13-15; Intervenors' Response at 27-29.
1 53/
LBP-90-4 at 19, 21-22, 32-34.
i l
_ - _ _ _ _ _ _ - position is that neutron damage accumulation is a nighly nonlinear process, and that predictions based on a linear sum are not always conservative in that although the difference in total operating time between unit 3 and 4 is only 4.8%, the deviations on a yearly basis are enormous.
Dr. Sih's graph attached to his letter illustrates the significance of the differences between the units by demonstrating that Unit 3 behaved differently from Unit 4 in that it possessed a slow down period. 54/
The Licensee agrees with all of these statements by Dr.
Sih.
Specifically, the Licensee agrees that neutron damage accumulation is a non-linear process, because a reactor vessel does not incur any appreciable irradiation damage when it is not operating. 55/ The Licensee also agrees that predictions of irradiation damage based on a linear sum of calendar years (as j
shown in the graph attached to Dr. Sih's letter) are not always conservative because operating times for a reactor can vary from year to year.
Finally, as shown in Dr. Sih's graph.and the accompanying table, the Licensee agrees that the differences in i
L operating times between Turkey Point Units 3 and 4 during some i
years have been large.
In fact, the data in Dr. Sih's figure and table are based on the data provided by the Licensee to 54/
Intervenors' Brief at 13-14.
~~/
Neutron damage accumulation is also non-linear for other 55 reasons.
For example, the Licensee utilized Revision 2 to Regulatory Guide 1.99 to calculate the ART for Turkey Point at 20 EFPY.
Collard Affidavit, 1 26.
Under the provisions of this Regulatory Guide, the ART is a function of a
" fluence factor," which in turn is a non-linear function of the fluence (as shown in Figure 1 of the Regulatory Guide).
See also Collard Affidavit, 1 15.
i i
! Intervenors d6 ring discovery. 56/
In summary, there is no dispute concerning the underlying facts regarding this issue.
In its Motion for Summary Disposition and supporting affidavit, the Licensee addressed the significance of the types
)
of factors mentioned by Dr. Sih.
The Licensee explained that the effects of neutron irradistict. on a reactor vessel are a function of the total fluence on the reactor vessel. 52/
The Licensee then explained that factors such as outages, operating time (as expressed in EPPY), and capacity factors affect the total fluence and that variations in these factors are taken into account
')
through the use of total fluence as a measure of irradiation damage. 58/
The NRC Staff also expressed the same position. 59/
The Licensing Board's Memorandum and Order at 32-34
)
fully reflects these facts. 60/
In particular, the Licensing Board recited Intervenors' statements regarding matters such as differences in operating times and capacity factors and explained that "the foregoing considerations are subsumed in the
~~/
See " Licensee's Response to Intervenors' First Set of 56 Discovery Requests to Licensee" at 11-12 (August 28, 1989).
I
~~/
In his letter, Dr. Sih also states that the rates of neutron l
57 itradiation and the duration of neutron irradiation are of importance.
However, since the rate of neutron irradiation integrated over the time of irradiation is equivalent to fluence, it is apparent that the differences between Dr.
Sih's position and Licensee's position are merely a difference in semantics.
i 58/ Collard Affidavit, 11 61, 68.
59/
Elliot Affidavit, 11 21, 26.
60/
LBP-90-4 at 32-34.
l I
) calculation of total fluence.
" 61/
Although the Licensing
)
Board did not specifically mention Dr. Sih at this point in its Memorandum and Order, it did address in general the factors discussed by Dr. Sih and found that they did not raise a genuine
)
issue of material fact.
Therefore, Intervenors' complaint that the Licensing Board did not consider the views of Dr. Sih is incorrect, and the Licensing Board's ruling on this matter should
)
be sustained.
The Licensing Board's result could also be sustained for another reason.
Dr. Sih's letter of October 18, 1989 discusses differences in operating times at Turkey Point Units 3 and 4 since 1985, when the most recent removal and testing of a surveillance capsule for Turkey Point occurred. 62/
The operating history of the Turkey Point units from 1985 to the present obviously cannot affect the results of the previous tests of these capsules.
Since the ART of the Turkey Point reactor vessels is based upon the results of the surveillance tests of specimens removed in 1985 or earlier, the operating history of 1
Turkey Point after 1985 cannot affect the calculation of the ART or the P/T limits. 63/
Thus, the matters discussed by Dr. Sih related to the 5 percent difference in operating times are
)
irrelevant to the adequacy of the current P/T limits for Turkey l
Point.
61/
Id. at 33.
62/
Collard Affidavit, Table 2.
63/
See Collard Affidavit, 11 50-58.
.. _. _ _ _ Similarly, the current magnitude of the difference in the operating times or capacity factors between Turkey Point, Units 3 and 4 is irrelevant to the adequacy of the P/T limits.
64/ The Licensee demonstrated that the current surveillance test data are sufficient to predict the ART and the P/T limits for up to 20 EFPY, 65/ Therefore, as long as either unit has operated less than 20 EFPY, the ART and P/T limits calculated at 20 EFPY will remain valid for that unit, without regard to the magnitude i
of the difference in operating times or capacity factors between that unit and the other unit.
C.
Contrary To The Arguments Of Intervenors, The Licensing Board Did Not Weigh The Evidence In Granting Licensee's Motion For Susunary Disposition The Intervenors argue that the Licensing Board weighed the evidence and thus erred in determining that Dr. Sih did not raise a genuine issue of material fact with respect to the 5 percent difference in operating time between Turkey Point Units 3 and 4. 66/
In support of their argument, Intervenors quotes the Licensing Board's statement that "[blecause the difference in
-~/
Intervenors have confused two distinct and separate issues 64 namely, 1) the adequacy of the P/T limits for Turkey Point, and 2) whether there is a need to implement the contingency plan for Turkey Point due to a difference in the operating times of Turkey Point Units 3 and 4.
In particular, even if it is assumed arguendo that the operating times for the Turkey Point units are sufficiently different to invoke the use of the contingency plan, such a difference would not call into question the adequacy of the P/T limits at 20 EFPY for the Turkey Point units.
65/
Collard Affidavit, 11 50-58.
l 66/
Intervenors' Brief at 15-16.
.... operating features between the two Turkey Point reactors was acceptable in 1985, we find, a fortiori, that a smaller difference today remains acceptable." 61/
The Intervenors assert that by making this statement, the Licensing Board is in direct disagreement with Dr. Sih, and therefore, must have improper?y weighed the evidence at the summary disposition stage.
The Intervenors are incorrect in asserting that the Licensing Board engaged in a balancing or weighing of conflicting evidence.
As discussed above, effects of neutron irradiation are a function of the total fluence received by a reactor vessel.
Other factors such as differences in annual capacity factors and operating times are " subsumed in the calculation of total fluence
" 68/ Thus, in examining the evidence presented by Dr.
Sih, the Licensing Board concluded that the factors he raised (e.g., differences in annual capacity factors and operating times), were already accounted for in the calculations for total fluence.
The Board went on to find that the difference in fluence between Unit 3 and 4 had decreased from less than 10 percent in 1985, when the Integrated Surveillance Program was accepted by the NRC, to 3 percent today.
Since the current difference in fluence is less than the difference that existed when the Integrated Surveillance Program was accepted, the Board found as a matter of logic that the current difference must also 62/
LBP-90-4 at 34.
68/
Id. at 33.
. be acceptable. 69/
In summary, the Licensing Board did not improperly weigh the evidence as Intervenors argue.
Instead, the Licensing Board only decided that the factors identified by Dr.
Sih did not raise any genuine issue of material fact.
D.
Contrary To Intervenors' Claims, The Licensing Board Viewed The Evidence In A Light Most Favorable To Intervenors In their Brief, Intervenors assert that the Licensing Board erred because it did not resolve conflicts in the record evidence in a light most favorable to Intervenors with respect to 1
the question of whether Licensee met the requirements of the Integrated Surveillance Program.
In particular, Intervenors argue that the Licensing Board did not examine an October 15, 1985 letter from Dr. Sih in a light most favorable to Intervenors.
The Intervenors cited Dr. Sih's letter in support 4
of their claim that Turkey Point Units 3 and 4 have been operating with mixed and different fuel cores since 1985 and therefore did not meet the requirements of the Integrated Surveillance Program. 70/
The Intervenors' argument that the Licensing Board did not view Dr. Sih's October 15, 1985 letter in a light most i
favorable to them is incorrect.
In reviewing Dr. Sih's letter, l
the Licensing Board stated
~~/
Id. at 34.
It is apparent that the Intervenors actual 69 complaint is that the Integrated Surveillance Program never should have been accepted in 1985.
That complaint is addressed in subsection II.G.,
infra.
70/
Intervenors' Brief at 16-17.
l
. In support of this disagreement, Intervenors rely on their Exhibit 11, a letter from Dr. George Sih dated October 10, 1985 (apparently at p. 2).
Nowhere in this letter does Dr. Sih refer to, nor show any awareness of, fuel core design changes in the reactors.
It is not clear whether Dr. Sih is referring to possible. differences in core loading histories or to structural loading histories.
A fair reading of this letter suggests that he is referring to plant-specific differences in structural loading histories resulting from postulated pressurized thermal shock, an issue not within the bounds of this proceeding. 11/
As noted by the Licensing Board, Dr. Sih's letter was not very clear.
In any event, the Licensing Board gave Dr. Sih's letter a
" fair reading" in an attempt to interpret Dr. Sih's arguments.
The Licensing Board did nothing improper.
Dr. Sih's letter was cryptic and largely unintelligible.
Given both the lack of clarity in the letter and its legal inadequacy to support the opposition to summary disposition, the Licensing Board would have been wholly justified in ignoring the letter completely.
Instead, the Licensing Board struggled to find meaning that was not evident on the face of the letter.
Obviously, such an attempt could only rebound to the benefit of Intervenors.
The Intervenors' complaint that the Licensing Board incorrectly interpreted Dr. Sih's letter rings hollow.
Dr. Sih's letter is unclest and difficult to interpret, the fault for which 1
lies at the door of Intervenors, who requested the letter from Dr. Sih and who could have sought clarification from him.
In essence, Intervenors are claiming that a hearing is warranted in 71/
LBP-90-4 at 21 n.4 (emphasis in original).
i order to clarify a letter sponsored by them.
Such a tactic is not an acceptable means of defeating a motion for summary disposition.
In any event, even if Dr. Sih's letter is given the interpretation sought by Intervenors, it still would not raise a genuine issue of material fact.
The Licensee agrees that Turkey Point Units 3 and 4 have had different reactor cores.
Therefore, there is no dispute concerning the underlying facts.
l As discussed above, the effects of neutron irradiation are a function of the total fluence.
Factors such as differences in annual capacity factors, outages, and operation at low power are of significance to fracture toughness only to the extent they affect total fluence. 12/
Similarly, differences in core loading would be significant only to the extent they affect total fluence.
The Licensee and the NRC Staff have shown that the total fluences for Units 3 and 4 are comparable. 23/
Therefore, l
the differences in fuel cores between the two units are of no significance to the P/T limits because they have not significantly affected the total fluence.
In fact, Intervenors' concerns about different fuel cores were fully considered by the Licensing Board.
On pages 32 and 33 of its Memorandum and Order, the Licensing Board concluded that any differences in core loading were accounted for in 12/
Collard Affidavit, V 61.
23/
See Collard Affidavit, 11 59-65; Elliot Affidavit, 1 26.
l
I calculating total fluence. 24/
Thus, in effect, the Licensing Board gave Dr. Sih's letter two different interpretations (including the interpretation proffered by Intervenors), and determined in each case that Dr. Sih's letter did not raise a
)
genuine issue of material fact.
E.
The Licensing Board Did Not Consider Licensee's Reply To Intervenors' Response To Licensee's Motion For Summary Disposition
)
The Intervenors argue that the Licensing Board's instruction to the Licensee to file a reply to their Response to Licensee's motion for summary disposition has prejudiced Intervenors.
In particular, they argue that the Licensing Board's Memorandum and Order should be reversed if the Licensing Board read the reply. 25/
The Licensing Board's action did not prejudice Intervenors.
The Licensing Board recognized that it inadvertently directed Licensee to file a reply to the Intervenors' Response.
However, as the Licensing Board stated:
I
[W]e have not considered Licensee's Reply.
This decision (Memorandum and Order (Ruling on Motion for Summary Disposition and Dismissal of Proceeding)
(January 16, 1990)) relles solely on the record of the case prior to Licensee's Motion for Summary Disposition, the Motion itself with supporting documentation, Intervenor's Response and supporting documentation, and the NRC Staff's Response and supporting documentation. 26/
24/
LBP-90-4 at 32-33.
15/
Intervenors' Brief at 17-20.
26/
LBP-90-4 at 16 n.3.
... _.. The Licensing Board should be taken at its word.
Therefore, its action requesting the reply was merely a harmless error which did not prejudice Intervenors.
As a basis for their claim that they were prejudiced by the Licensing Board's action, Intervenors refer to an issue raised by Dr. Sih related to " strain rate" and state that the issue was not discussed anywhere in the record except for the Intervenors' Response and the Licensee's Reply. 77/
Therefore, Intervenors allege that the Licensing Board must have relied upon the Licensee's Reply in deciding that matters related to strain rate did not raise a genuine issue of material fact. 78/
The Intervenors are mistaken.
The Licensing Board's decision was predicated upon the fact that Dr. Sih's comments regarding strain rate did not, on their face, raise a genuine
-/
It is not surprising that the record contains no mention of l
77 Dr. Sih's issue related to strain rate prior to the filing of Intervenors' Response.
In particular, Intervenors did not identify Dr. Sih or issues related to strain rate in their response to Licensee's interrogatories requesting the identity of Intervenors' expert witnesses and the bases for their contentions.
See Intervenors' Responses To Licensee's First Set Of Discovery Requests To The Center For Nuclear Responsibility And Joette Lorion (August 8, 1989).
In fact, Dr. Sih was not identified as an expert witness until well after Intervenors' Response to Licensee's Motion for Summary Disposition was filed.
See Intervenors' Supplemental Response To Licensee's Discovery Requests, Interrogatory I.(A-B) (December 4, 1989).
In a situation such as this, the Licensing Board would have been entitled to disregard issues pertaining to strain rate for failure of Intervenors to comply with their discovery obligations.
See 10 CFR S 2.707; 10 CFR S 2.740(e); Pennsylvania Power and Light Co.
(Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-31, 10 NRC 597, 607 (1979).
78/
Intervenors' Brief at 19-20.
l
_ _ _ _ issue of material fact.
It is undisputed that the Licensee used NRC-mandated codes and standards to perform tests on its surveillance capsules and to calculate its P/T limits. 19/
As the Licensing Board stat.d, "nvwhere in the methodology for measuring and predicting fracture toughness for normal operations and postulated accidents is there any requirement to measure strain rate in the reactor vessel." 80/
Thus, there was no need for the Licensing Board to refer to Licensee's Reply or other factual information in the record, because Dr. Sih's issues related to strain rate could be rejected as a matter of law.
Furthermore, it is apparent that the Licensing Board's ruling was correct.
Dr. Sih's letter of October 18, 1989, stated that Charpy V-Notch tests are not adequate to measure fracture toughness because they do not account for strain rate.
- However, the Licensee was required to perform Charpy V-notch tests on its surveillance capsules in accordance with industry codes required by the NRC.
Specifically, 10 CFR Part 50, Appendix G, S II E defines the adjusted reference temperature in terms of the change in RT as determined from Charpy V-notch test data.
Similarly, gy Appendix G, S III A and Appendix G, 5 IV A state that fracture toughness must meet the requirements of the ASME Code, and 1
Section III NB-2331 of the ASME Code states that the reference 79/
Specifically, under 10 CFR 50, Appendix H, licensees are required to use the ASTM Code to perform surveillance tests and, under 10 CFR 50, Appendix G.IV.A, licensees are required to use the ASME Code for calculating P/T limits.
80/
LBP-90-4 at 32.
l
)
) temperature shall be calculated based upon the results of Charpy
)
V-notch tests. 81/
Furthermore, both Appendix H and the ASME Code require use of the ASTM Code, which in turn contains specifications for performing Charpy V-notch tests.
Thus, the 1
Licensing Board was correct in ruling that the methodology for Charpy V-notch testing is " defined by ASME and ASTM Codes (incorporated by reference in Part 50)." 82/
Since Dr. Sih
)
states that the use of Charpy V-notch test results is insufficient to measure fracture toughness, he is attacking the validity of these provisions in Appendix G and Appendix H to 10
)
CFR Part 50 which require the performance of Charpy V-notch tests in accordance with the ASTM Code.
Accordingly, Dr. Sih's letter raises an issue that is not cognizable in this proceeding and is.
not sufficient to defeat Licensee's Motion for Summary Disposition.
To the extent that Intervenors are alleging that the Licensee should have deviated from these codes and standards i
in order to measure the strain rate, they are also engaging in an attack upon the Commission's regulations, which is prohibited i
under 10 CFR S 2.758.
l
-/
It should be noted that the ASME Code accounts for the 81 impacts of changes in strain rate.
In particular, Appendix G-2110(a) of Section III of the ASME Code states that one of the factors used in calculating P/T limits, called the critical stress intensity factor, was based on a bounding calculation of " static, dynamic, and crack arrest" values (i.e., values measured at different strain rates).
82/
LBP-90-4 at 21.
~41-2 F.
Contrary To The Arguments Of Intervenors, The Licensee And The NRC Staff Do Not Disagree Over The Importance Of Differences In Flux Lot Numbers It is undisputed that the RT,y for the weld surveillance capsule tested from Turkey Point Unit 4 was higher than the RT,y for the weld surveillance capsules tested from Turkey Point Unit 3.
The Licensee and the NRC Staff offered various explanations for this difference.
The Licensee and the NRC Staff concluded, respectively, that the difference in RT,y did not indicate any significant difference in the embrittlement of the reactor vessels for Turkey Point Units 3 and 4, and that it was appropriate to use surveillance test data from both units in calculating the ART for each unit. 83/-
Intervenors assert that Licensee and the NRC Staff disagree over the importance of the difference in flux lot numbers between the Turkey Point Unit 4 welds and Unit 4 weld surveillance capsules, and whether such difference provides an explanation for the difference in RT of the weld capsules for gy Units 3 and 4.
As a result, they argue that a genuine issue of material fact exists with respect to whether the Licensee meets the requirements of the Integrated Surveillance Program allowed by 10 CFR Part 50 Appendix H. 84/
As discussed below, this argument is not supported by the record, and, in any event, is not material.
).
83/
Collard Affidavit, 11 40-43; Elliot Affidavit, 11 16-20.
84/
Intervenors' Brief at 23-24.
_m-___---------
. _. _ _ The reactor vessel welds and the weld material specimens at Turkey Point and other plants are characterized by a heat number 85/ and a flux lot number. 11/
At Turkey Point, the heat numbers for the welds and weld surveillance specimens for Turkey Point Units 3 and 4 are identical.
Additionally, the flux lot number for the welds for Turkey Point Units 3 and 4 and for the weld specimens for Turkey Point Unit 3 are identical; however, the flux lot number for the weld specimen for Unit 4 is different than the flux lot number for the weld for Unit 4. 87/
Contrary to the assertion by Intervenors, the Licensee did not attribute "the high test result (for the Unit 4 weld surveillance specimen) to alleged differences in-the flux lot number for the Unit 4 sample." !!/
Instead, the Licensee noted that the " primary factor" affecting a weld's susceptibility is its heat number. 89/
The Licensee went on to state that the impact of the differences in the flux lot number between the welds and weld specimens for Turkey Point Unit 4 is " unclear."
85/ The heat of a metal is defined as all the material included in one original melt or production of a batch of metal.
The material properties throughout each heat are essentially uniform, and each heat is designated by a unique number.
-/
Similar to the heat number, the flux lot number corresponds 86 to all of the material included in the production of one batch of original flux mix.
Flux is a material that is used to prevent, dissolve, or facilitate removal of undesirable oxide substances on the surfaces of welds.
87/
Collard Affidavit, 1 38.
88/
Intervenors' Brief at 24.
89/
Collard Affidavit, 1 40.
- The Licensee then identified the difference in flux lot numbers as one of four factors (including test data scatter) that may have caused a higher than average RT,y for the weld specimen tested from Unit 4.
In any case, the Licensee concluded that it was unlikely that the difference in the RT for the test gy specimen reflected "any real and significant difference in the fracture toughness of the welds" for Units 3 and 4. 90/
The position of the NRC Staff was essentially the same as the position of the Licensee.
In particular, the NRC Staff stated that the difference in RT,, for the weld surveillance specimen for Unit 4 was within the range of scatter expected for the surveillance data, and therefore may be used in conjunction with Unit 3 surveillance capsule data. 91/
Moreover, the NRC Staff noted that "[s]ince irradiation embrittlement is dependent upon the amount of copper and nickel in the weld and the accumulated neutron fluence, the flux lot is not considered important in determining the sensitivity of the weld to irradiation embrittlement." 92/
In summary, there is no real difference in the position of the Licensee and the NRC Staff.
Both agree that the most important factor in determining a weld's susceptibility to irradiation is the heat number or chemistry of the weld.
Both also attribute the difference in RT,3 for the surveillance 90/
Id. at 11 40-43.
91/
Elliot Affidavit, 11 16-20, 92/
Id. at 1 16.
_ capsules for Units 3 and 4 to data scatter.
The Licensee only cited to the difference in flux lot numbers, together with several other factors, as another possible explanation for the difference in the RT for the weld surveillance specimens from gy Units 3 and 4.
In any event, even if it is assumed that there is a dispute between the Licensee and the NRC Staff on the importance of the difference of flux lot numbers, this dispute is not material.
Regardless of the reason for the difference in RTgy for the surveillance capsules for Units 3 and 4, both the Licensee and the NRC Staff agree that it is appropriate to integrate the results of the surveillance capsule tests for both units to calculate the ART of each unit at 20 EFPY, 93/
Since the validity of the Integrated Surveillance Program is the ultimate issue of concern to Intervenors, and since there is no dispute of material fact between the Licensee and the NRC Staff i
i 93/
Additionally, any dispute regarding the difference in flux lot numbers would not be relevant.
As discussed above, Intervenors argue that the difference in RT between the weld surveillance capsules for Units 3 and T* indicates a difference in embrittlement of the reactor vessels for Units 3 and 4, and therefore that the Integrated Surveillance Program does not meet the requirements of 10 CFR Part 50, Appendix H.
However, this difference in RT existed at the gy time the NRC issued the license amendment accepting the Integrated Surveillance Program in 1985.
Thus, by contesting the adequacy of the Integrated Surveillance Program, Intervenors are contesting a matter that was settled as part of a previously issued license amendment.
Such a challenge is not permissible.
Portland General Electric Co., et al. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 745 (1978), aff'd, ALAB-534, 9 NRC 287 (1979).
.. on this issue, Intervenors' arguments regarding differences in flux numbers are of no import.
G.
The Licensing Board Was Correct In Concluding That Intervenors Were Challenging The Commission's Rule For An Integrated Surveillance Program Intervenors disclaim any intent to challenge the Commission's rules in Appendix H to 10 CFR Part 50 governing integrated surveillance programs, and they argue that the Licensing Board erred in finding that they were challenging the NRC's rule for an integrated surveillance program. 94/
- However, as discussed below, their disclaimer is contrary to the record.
On pages 13 to 15 of their Response to Licensee's Motion for Summary Disposition, Intervenors argued in general that embrittlement of a reactor vessel must be based upon plant specific data.
Such an argument constitutes a challenge to the very existence of an integrated surveillance program, which by definition allows the results of a surveillance program from one or more plants to be combined for use by several plants.
Additionally, 10 CFR Part 50, Appendix H, S II C sets forth certain requirements for acceptance of an integrated surveillance program, such as similarity in design and operating features, adequate arrangement of data sharing between plants, and a contingency plan in the event of operation at reduced power level or an extended outage at a reactor from which data are 94/
Intervenors' Brief at 25-26.
l
............ _. _. _.. _ expected.
The Intervenors have attacked the Integrated Surveillance Program for Turkey Point for various reasons unrelated to the requirements in Appendix H, and have essentially argued that the Licensing Board should apply standards that are stricter than those enumerated in 10 CFR Appendix H, 5 II C.
For example, Intervenors have stated that the Integrated Surveillance Program for Turkey Point is inadequate because the Turkey Point units have had different capacity factors during certain years and because different types of fuel have been utilized during various cycles of the Turkey Point units. 95/ However, as noted by the Licensing Board, Appendix H does not require that the operating features of reactors in an integrated surveillance program be identical. 96/
Since Intervenors did not provide any evidence that would indicate that the differences in the operating features at Turkey Point are sufriciently significant to cause a conflict with the provisions of Appendix H, Intervenors' citation of these differences essentially constitutes a challenge to Appendix H.
Therefore, the Licensing Board was correct in dismissing this attack on the Turkey Point Integrated Surveillance Program as an attack on Appendix H.
Intervenors also argue that Licensee has never met, nor do they now meet, the requirements of the Integrated Surveillance Program. 97/ Their only basis for this claim is the difference 95/
Intervenors' Response at 19-21.
96/
LBP-90-4 at 33-35.
97/
Intervenors' Brief at 25-26.
l
f I in the results of the tests of the weld surveillance specimens for Turkey Point Units 3 and 4.
By asserting that FPL has never met the requirements of the Integrated Surveillance Program, Intervenors are attacking the NRC's acceptance of FPL's
)
Integrated Surveillance Program in 1985. 98/
Therefore, as the Licensing Board properly found 99/,
Intervenors' argument is impermissible because it goes into matters that have already been
)
settled and are beyond the scope of this proceeding 100/
See Portland General Electric Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 745 (1978), aff'd ALAB-534, 9 MRC 287 (1979).
See
)
also Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 466-67 (1988); Florida Power &
Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),
LBP-85-36, 22 NRC 590, 598-99 (1985); Consumers Power Co. (Big Rock Point Nuclear Plant), LBP-80-4, 11 NRC 117, 127-28 (1980);
-/
See Florida Power & Light Co. Docket Nos. 50-250 and 50-98 Yll, Turkey Point Units Nos. 3 and 4, Amendments Nos. 112 and 106 (April 22, 1985).
99/ LBP-90-4 at 33.
100/ Despite this ruling, the Licensing Board also considered the merits of Intervenors' claim.
The Board ruled, as urged by I
Intervenors, that the surveillance test results indicated a higher RT for the Unit 4 surveillance capsule than for the gy Unit 3 surveillance capsules.
However, the Board also i
determined that there was no genuine issue of fact that the higher results for the Unit 4 capsule fell "within the range of scatter expected for the data" from surveillance tests.
Therefore, the Board concluded that it was appropriate to include the surveillance test results for Unit 4 in the Turkey Point Integrated Surveillance Program.
LBP-90-4 at 31.
)
_ Portland General Electric Co., et al. (Trojan Nuclear Plant),
LBP-78-32, 8 NRC 413, 415-16 n.1 (1978).
Finally, Intervenors argue that the Licensing Board erred by ruling that "the Licensee is not required to have a written, detailed contingency plan to meet the requirements of the Integrated Surveillance Program." 101/
However, as stated by the Licensing Board, this argument is easily disposed of.
"The Appendix H requirement for a contingency plan is, on its face, satisfied by the existence of two similar units each with surveillance capsules installed."
Furthermore, the Turkey Point contingency plan was documented as one part of FPL's 1985 application to the NRC for approval of FPL's Integrated Surveillance Program. 102/
There is no requirement in Appendix H that the contingency plan be located in a separate document.
Therefore, since FPL is not required to have a separate written contingency plan at Turkey Point, this issue is legally without merit.
In any event, Intervenors' do not claim that this issue relates to the adequacy of the P/T limits for Turkey Point, and no such connection is apparent.
101/ Intervenors' Brief at 26.
102/ See Florida Power & Light Co. Docket Nos.
50-250 and 50-YTT, Turkey Point Unit Nos. 3 and 4, Amendments Nos. 112 and i
106 (April 22, 1985) (containing NRC's acceptance of FPL's Integrated Surveillance Program).
I l
3 H.
Even If All Of Intervenors' Arguments Are Assumed To Be Correct, Summary Disposition Would Still Be Appropriate The gravamen of Intervenors' arguments is that various aspects of Turkey Point Units 3 and 4 are sufficiently different I
so that the results of the Integrated Surveillance Program should not be utilized and that the P/T limits for each unit should be calculated separately.
In particular, Contention 2 itself claims that Turkey Point Unit 4 is more embrittled than Turkey Point Unit 3, and that the P/T limits for Unit 4 should be calculated based on Unit 4 specific data.
However, even if Intervenors' arguments are assumed arguendo to be correct, summary disposition would still be appropriate.
Based upon the arguments of the Intervenors, the Licensee performed a calculation of hypothetical P/T limits for i
Turkey Point Unit 4 without using the results of the Integrated Surveillance Program (i.e., without using the surveillance test results frcm Unit 3).
This calculation was performed using 1) the ASME Code as required by 10 CFR Part 50, Appendix G, and 2)
Revision 2 of NRC Regulatory Guide 1.99.
The results of this calculation indicate that the hypothetical P/T limits for Unit 4 are almost identical to the P/T limits for Units 3 and 4 based on the results of the Integrated Surveillance Program.
Therefore, it is of little significance whether the P/T limits for Unit 4 are calculated based on the results of the Integrated Surveillance Program (as done by the Licensee) or based on Unit 4 l
4
I specific data (as sought by the Intervenors); the P/T limits are
)
essentially the same in either case. 103/
Intervenors' Response at 26 (but not their Appeal Brief) states that Licensee's hypothetical calculation of the P/T
)
limits for Unit 4 should be rejected because it was calculated on a " desk top computer," 104/ has not been verified by the NRC Staff, and was based on only one data point.
- However, i
)
Intervenors' assertions do not raise a genuine issue of material fact for several reasons.
First, the allegation that the calculation was performed on a " desk top computer" does not identify any deficiency in the calculation.
Second, contrary to Intervenors' assertion, the NRC Staff has determined that the results of this calculation "are within the proper range." 105/
I Finally, contrary to Intervenors' assertions, FPL did not use a single surveillance data point in this hypothetical calculation.
As is plainly discussed in the Collard Affidavit, 106/ the i
chemistry content of Unit 4 welds rather than the surveillance test results for Unit 4 was used to calculate the chemistry 103/ Collard Affidavit, 11 71-74.
104/ Intervenors' Response at 26.
105/ Elliot Affidavit, 1 27.
Moreover, only recently the Appeal Board has rejected the claim that an applicant's
" calculations are somehow suspect and cannot form the basis for the Board's findings because the Staff did not independently verify them."
Florida Power & Light Co., (St.
Lucie Nuclear Power Plant, Unit 1), ALAB-921, 30 NRC 177, 186 (1989).
106/ Collard Affidavit, 1 73.
l l
i
).
! t factor used in determining the hypothetical RTmn, as required by
)
Revision 2 to NRC Regulatory Guide 1.99.
In summary, there is no genuine issue of material fact that the P/T limits'for Turkey Point Unit 4 would be essentially
)
the same whether based on Unit 4 specific data or based on the results of the Integrated Surveillance Program.
Therefore, Intervenors' other arguments are of no import, and summary
)
disposition is appropriate.
I.
Conclusion
)
In its Memorandum and Order, the Licensing Board correctly concluded that Intervenors did not raise a genuine issue of material fact.
Therefore, the Licensing Board's grant of Licensee's motion and dismissal of the proceeding was appropriate and should be affirmed.
PART TWO PETITIONERS' APPEAL I.
PROCEEDINGS BEFORE THE LICENSING BOARD i
The Petitioners submitted their " Petition for Leave to Intervene" (" Petition") on October 19, 1989, 1/ approximately eleven months after the expiration of the period during which
-1/
On November 16, 1989, Petitioners filed a " Clarification Of Contentions And Answer To Licensee's Response In Opposition To NEAP /Saporito Petition For Leave To Intervene"
(" Clarification").
i
O
-s2-timely petitions could have been filed in accordance with the rederal Register Notice of TPL's application for the amendments.
53 Ted. Reg. 40,988 (October 19, 1988}.
As the Licensing Board pointed out, by then " discovery had already taken place in tais proceeding, summary disposition motions had been filed and responded to by all the parties, and the hearing, if necessary had been scheduled to begin in less than three months." 2/
O 3
Balancing, as required, the five factors governing consideration of late-filed petitions specified in 10 CTR $ 2.714(a)(1), the Board concluded that only two of the factors favored grant of the O
Petitions the absence of other means to protect Petitioners' g
interests and the inability of other parties to represent their E
interests. 3/
Each of the other three factors was weighed O
unfavorably against Petitioners.
In particular, the Board characterized the Petition as being " inexcusably late" and
" coming at the eleventh hour of this proceeding." 4/
The Board O
summarized the basis for its conclusions as follows:
In a case presenting a strikingly similar balance, the Appeal Board has held that O
...it is most difficult to envisage a situation in which (these two factors) might serve to justify granting intervention, after the hearing date was set, to one who (1) is inexcusabl lates (2) seeks to expand materia ly the scope of 8
the proceedings and (3) offers, at 2_/
LBP-90-5 at 14,
_3/
_Id. at 12-13, 14, 16.
[d. at 12, 14.
d J/
e
) best, a marginal showing with
)
respect to its ability to make a truly significant, substantive contribution.
e
)
By... remaining on the sidelines while the proceeding moved closer and closer to trial, [ petitioners) voluntarily assumed the precise risk which has now materdalized:
that its participation in the
)
proceeding could no longer be
]l sanctioned without destructive damage to both the rights of other parties and the integrity of the adjudicatory process itself 5/
)
II.
gg ARGU8 TENT A.
Int rodt9 tion In their brief on appeal 6/ (" Petitioners' Brief"),
Petitioners address each of the three of the five factors which the Licensing Board weighed against them, 7/ essentially
~/
LBP-90-5 at 16-17 (quoting South Carolina Electric & Gas 5
Co., et al. (Virgil C. Summer Nuclear Station, Unit 1),
ALAB-642, 13 NRC 881, 895 (1981)).
~/
Appellant's Appeal from the January 16, 1990 Memorandum and 6
Order (Denying Petition to Intervene) and Memorandum of Exceptions to the Decision in Support of Appellant's Appeal (February 5, 1990).
7/
Apparently Petitioners so limit their brief because they assume (Petitioners' Brief at 3) that all they need to prevail is to convince this Board that any three of the five factors should have been weighed in their favor.
This view is erroneous.
See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 397, 400-02 (1983) (citing cases discussing the special importance of factors concerning good cause for late intervention, ability to contribute to the proceeding, and the potential for delay).
) repeating the same arguments which that Board considered and decided against them.
We address those arguments below.
Initially, however, we emphasize two general principles which have been developed by the Appeal Board with respect to late-
)
filed petitions.
First, although all of the five factors must be considered, a failure to demonstrate good cause for not filing on time requires a compelling showing on the remaining four factors.
)
Nunlear Pael Services, Inc. (West Valley Reprocessing Plant),
CLI-75-4, 1 NRC 273, 274-75 (1975).
Second, a Licensing Board has broad discretion in i
considering the factors governing the entertainment of a late filed petition pursuant to 10 CTR $ 2.714(a).
Nuclear Fuel Services, Inc., 1 NRC at 275.
An Appeal Board will not overturn a Licensing Board's denial of an untimely petition to intervene pursuant to the five factors contained in 10 CTR $ 2.714(a) unless the Licensing Board has abused its discretion.
Detroit Edison Co., et al. (Enrico Fermi Atomic Power Plant, Unit 2),
ALAB-707, 16 NRC 1760, 1764 (1982).
Moreover, "'neither this Board nor the Commission has been readily disposed to substitute its judgment for that of the Licensing Board insofar as the outcome of the balancing of the Section 2.714(a) (lateness) factors is concerned.'"
Washington Public Power Supply System, et al. (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1171 (1983) (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 395-96 (1983) (footnote omitted)).
) In denying the instant Petition, 8/ the Licensing Board clearly did not abuse its discretion.
Its decision was~ supported by both the facts of the case and precedent.
)
B.
Petitioners' Arguments 1.
Good Cause For Late Intervention Arguing that they did have good cause to file late,
)
Petitioners reiterate the arguments they made to the Liceneing Board with respect to this factor.
First, they assert that Mr.
Saporito's employment by FPL until December 1988, together with
)
the alleged threat of retk11ation by FPL, constituted an excuse for late filing. 9/
As the Licensing Board pointed out, there is no Commission rule or regulation which prevents an employee of a
)
licensee from filing a petition to intervene.
To the contrary, it would have been illegal for FPL to have discharged or otherwise discriminated against Mr. Saporito if he had filed such a petition while he was an employee.
Section 210 of the Energy 3
Reorganization Act of 1974 (42 U.S.C. S 5851), and 10 CFR $ 50.7 prohibit such discrimination, making it unlawful for a licensee to discharge or otherwise discriminate against an employee who commences a proceeding under the Atomic Energy Act or a proceeding for the administration or enforcement of any requirement imposed by that Act or the Energy Reorganization Act.
As the Licensing Board correctly concluded, "to adopt Mr.
8/
LBP-90-5 at 17.
9/
Petitioners' Brief at 7-9.
1 Saporito's proposition that his employment status, standing alone, constitutes ' good cause' for late intervention requires that we find Section 210 to be a meaningless and ineffective protection in one of the very situations and for the very class of individuals it was intended to serve." 10/
In any event, Mr.
Saporito was dismissed by FPL on December 22, 1988, 11/ and Petitioners do not contend that the fear of retaliation existed
)
after that time.
Nevertheless, the petition for leave to intervene was not filed until October 22, 1989, ten months after
)
10/
LBP-90-5 at 6.
~~/ The Licensing Board referred to a complaint Mr. Saporito 11 filed under Section 210 to indicate that he was aware of the scope of the provision and of its remedies.
In doing so, it
)
noted that a preliminary investigative finding had been made that termination of his employment was a violation of Section 210.
LBP-90-5 at 6 n.7.
Subsequently, on June 30, 1989, a Department of Labor Administrative Law Judge issued a recommended decision reaching a contrary conclusion Complainant has failed to present a prima facie case.
The actions taken against Complainant by FPL and its management personnel were a result of his contentiousness and recalcitrance as an employee.
Saporito's discharge resulted solely from his crossing the line from contentiousness and recalcitrance into the area of insubordination.
Furthermore, the insubordination impacted on the Site Vice President's grave responsibility to assure that the nuclear facility over which he holds jurisdiction operates safely.
In the Matter of Thomas J. Saporito v. Florida Power & Light Co., U.S. Department of Labor Case Nos. 89-ERA-7 and 89-EHX-17 at 21 (June 30, 1989).
Mr. Saporito has filed an appeal of this decision with the Secretary of Labor, which is pending.
) his dismissal.
As the Licensing Board also concluded, there was no good cause for delay in filing the Petition after his employment status was terminated by TPL. 12/
Petitioners attempt to refute this glaring weakness
)
with 4 number of arguments, all of which were considered by the Licensing Board and properly found lacking in merit.
With respect to NEAP, Petitioners state that it
)
was not incorporated and not even in existence as an organization until late in 1989 when it was founded and created by Mr.
Saporito.
Therefore, NEAP standing alone as a separate entity, could not have filed a
)
timely petition for Intervention in this proceeding. 13/
However, as the Licensing Board recognized, " newly acquired organizational existence does not constitute ' good cause.'
Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), LBP-80-14, 11 NRC 570 (1980)." 14/
See also Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979).
Obviously, if subsequent creation of an organization were sufficient to establish good cause for late intervention, the good cause factor would be easily circumvented; an untimely petitioner could simply 12/
LBP-90-5 at 9.
13/
Petitioners' Brief at 10.
14/
LBP-90-5 at 12.
) incorporate an organization at any time during a proceeding and claim good cause for late intervention. 15/
As to Mr. Saporito's failure to file after December 1988 (and also derivatively through Mr. Saporito, NEAP's failure), Petitioner proffers a number of additional justifications.
Among these is that they "had not discovered the full extent of their safety concerns until late in 1989 after
)
they had extensively researched the essence and material facts of the issues involved in this proceeding." 16/
As to this argument, the Licensing 3oard ruled that:
)
This does not excuse the failure to comply with the Commission's procedural rules.
While newly-arising information has been recognized as " good cause," Consumers Power Co. (Midland Plant, Units 1 and 2), LBP )
T77 16 NRC 571, 577 (1982), previously available information newly-acquired by a petitioner has not.
Kansas Gas and Electric
)
~~/ Moreover, NEAP was apparently formed some time before August 15 30, 1989.
See " Notice of Appearance" filed in this proceeding on that date.
No good cause is offered for NEAP waiting to file its petition for leave to intervene until October 22, 1989.
)
-/
Petitioners' Brief at 8.
All of the subjects covered by 16 Petitioners' proposed contentions were the subject of contentions asserted by Intervenors in this proceeding.
Mr.
Saporito attended the March 21, 1989 prehearing conference, in which the Intervenors' contentions were discussed.
Additionally, on June 22, 1989, Mr. Saporito submitted a 10
)
CTR S 2.206 petition to the NRC addressing numerous concerns relating to the Turke surveillance program.y Point reactor vessel materials The topics discussed in this 2.206 submittal are similar to some of Petitioners' proposed contentions.
Therefore, Petitioners were aware of the issues eventually encompassed in their proposed contentions well before the filing of their petition to intervene in October 1989.
) Co. (Wolf Creek Generating Station, Unit 1),
)
EIP-84-17, 19 NRC 878, 886 (1984). 17/
That ruling was particularly appropriate here.
Petitioners do not suggest that the information that they " extensively
)
researched" was not previously available in fact it was.
Their petition for leave to intervene did not cite any new information regarding the Turkey Point P/T limits.
Instead, it largely
)
relied on information that had been in the public domain for a considerable period of time - years in some cases. 18/
Petitioners also claim that Mr. Saporito "was not
)
cognizant of the method to file a petition for intervention through notice of the rederal Register." 19/
The Licensing Board rejected this argument, holding that the Federal Register Notice
)
of the proposed amendments "put potential intervenors on notice." 20/
It was correct in so holding.
See Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2),
ALAB-292, 2 NRC 631, 647 n.18 (1975) (The Federal Register Act, 44 U.S.C. 5 1508, expressly provides that publication in the Federal Register constitutes notice to "all persons residing within the States of the Union."); see also Federal Crop Insurance Corp v. Merrill, 332 U.S. 380, 385 (1947).
The Notice 17/
LBP-90-5 at 8.
~~/
See Petition at 11-12 (discussing PNL Technical Review of 18 Pressurized Thermal Shock Issues, NUREG/CR 2837, PNL July 1982 and Supplement 1, May 1983).
19/
Petitioners' Brief at 8.
20/
LBP-90-5 at 9.
TN'
) itself directed persons interested in intervening to the rules governing intervention.
53 Ted. Reg. 40,981 (October 19, 1988). 21/
rinally, Petitioners state that they were under the impression that an issue pertaining to the copper content of the Turkey Point reactor vessel welds would be addressed by Intervenors, and that the Director of Nuclear Reactor Regulation
)
in denying one of Petitioner Saporito's 2.206 requests indicated that the copper content issue was the subject of a Licensing Board hearing. 22/
Therefore, Petitioners assert that they meet
)
the good cause requirement with respect to this issue, because Intervenors withdrew their contention (Contention 3) addressing this issue. 23/
In such circumstances, the Licensing Board was
)
wholly correct in concluding that the Petitioners were not justified in relying upon the Intervenors to continue to address copper content concerns through their Contention No. 3.
Unfortunately, a claim by 3
a petitioner that it was lulled into inaction because it relied on another party or entity to represent its interests does not constitute " good cause."
See, Gulf States
~~/
Mr. Saporito was aware of this proceeding as early as March 21 7, 1989, when he filed a " Petition for Leave to Make Statement" before the Licensing Board.
And, as that Board pointed out, he attended the March 21, 1989 prehearing conference and subsequently submitted a series of filings.
LBP-90-5 at 9-10.
22/
Florida Power & Li3pt Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), DD-89-8, 30 NRC 220, 224-26 (1989).
The Director also denied Petitioners' 2.206 Petition on the merits.
23/
Petitioners' Brief at 5-10.
-- Utilities Co. (River Bend Station, Units 1 6
)
2), ALAR-444, 6 NRC 760, 796 (1977). 24/
See also T,exas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-88-12, 28 NRC 605,
)
609 (1988), reconsideration denied, CLI-89-6, 29 NRC 348 (1989).
It is therefore clear that the Licensing Board was fully justified in holding that the Petitioners have not
)
demonstrated good cause for failure to file on time.
2.
Assistance In Developing A Sound Record In their petition to intervene, Petitioners identified
)
five contentions which they proposed to litigate.
Each of these proposed contentions dealt with issues that were either encompassed within one of Intervenors' contentions or had already
.)
been ruled by the Licensing Board to be outside the scope of this proceeding. 25/
Petitioners claimed that their participation in this proceeding would contribute to developing a sound record on these proposed contentions because Mr. Saporito had seven years
)
24/
LBP-90-5 at 11.
25/
Petitioners' Contention 1 (dealing with the copper content of the welds) was similar to Intervenors' Contention 3:
Petitioners' Cor.tention 2 (dealing with the Integrated Surveillance Program) was similar to Intervenors Contention 2: Petitioners' Contentions 3 and 4 (dealing with upper-shelf energy) pertained to an issue already excluded from the proceeding (LBP-89-15, 29 NRC at 506): Petitioners' Contention 5 (dealing with the adequacy of data to calculate the P/T limits for Unit 4) was also similar to Intervenors' contention 2.
- 3
) __
of experience as an Instrument and Control Specialist at Turkey
)
Point. 26/
As to this factor, the Licensing Board concluded that in light of petitioners' avowed interest in
)
pursuing areas of inquiry no longer at issue before this Board, the potential significance of their contribution to the resolution of the issues currently pending before this Board is, at best marginal.
Moreover, even if the issues before us were to be broadened,
)
the proposed participation by the petitioners does not, in our view, rise to the level of a compelling case supporting the grant of a late-filed petition to intervene. 27/
As explained below, the Board's ruling was undoubtedly correct.
)
Under 10 CTR $ 2.714(a)(1)(iii), untimely petitioners are required to " set out with as much particularity as possible the precise issues (they plan) to cover, identify (their) i prospective witnesses, and summarise their proposed testimony."
Mississippi Power & Light Co., et al. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982); see also Long Island Lighting Co. (Shoreham Nucinar Power Station, Unit 1), ALAB-743, 18 NRC 387, 399 (1983).
Also, the Commission has held that, in order to prevail on this factor, the moving party must " demonstrate,that it has special expertise on the subjects which it seeks to raise."
Commonwealth Edison Co.
(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-0, 23 NRC 241, 246 (1986).
26/
Petition at 21-22.
27/
Id. at 13-14.
1E
, In an effort to meet these requirements, Petitioners
)
repeat their previous arguments that they have knowledge of the issues, and "special expertise (instrument control specialist),"
apparently referring to Mr. Saporito.
They also refer to
" experience that its members possess.
" and claim to have set out the issues they planned to cover, identified their prospective witnesses and summarized their proposed testimony. 28/ However, nothing stated in their Brief controverts the Licensing Board's conclusion that their contribution would be "at best marginal."
)
In particular, neither the members of NEAP, other than Mr. Saporito, allegedly possessing " experience" or the nature of that " experience" is identified.
Mr. Saporito's only stated
)
expertise is his former employment as an Instrument and control Specialist.
This experience may qualify him to perform a calibration or a test required by a procedure specified in a technical specification.
It does not equip him to analyze and make expert judgments concerning the adequacy of the P/T limits (which require knowledge of fracture mechanics and impacts of radiation on metals), and the Petitioners do not even claim that it does.
Nor do Petitioners identify any witnesses.
To be sure, they characterize Dr. George Sih as a " prospective witness,"
stating that they are " making all reasonable efforts" to retain 28/
Petitioners' Brief at 12-13.
) him. 29/
However, it is apparent that Petitioners do not
)
actually have a commitment from Dr. Sih to testify on their behalf.
Moreover, in dismissing the proceeding, the Licensing Board determined that Dr. Sih did not raise any issues of
)
material fact with respect to the P/T limits. 30/
- rurther, Petitioners have not summarized the testimony or points that either Mr. Saporito or Dr. Sih would make, as required by Long Island Lighting Co., 18 NRC at 399.
Finally, Dr. Sih had been designated as a witness for the Intervenors.
Even if the Board had not dismissed the proceeding or made that determination,
)
there is nothing to indicate that Dr. Sih would have added anything to the record as a result of also being a witness for the Petitioners.
It is, therefore, clear that the Licensing
)
Board did not abuse its discretion in deciding this factor against the Petitioners.
3.
Undue Delay And Broadening of Issues Petitioners make but one brief argument with respect to this factor:
The ASLB erred as a matter of law in that the amendment is already in force, therefore, 3
Appellants' participation will not delay the proceeding.
Any harm visited upon the Licensee by the lateness of the filing was obviated when the Commission issued the 4
29/
Clarification at 9.
30/
LBP-90-4 at 32-33.
).
amendment without considering the petition.
See 23 NRC 165 (1986). 31/
However, the fact that the amendment had issued is certainly not dispositive in the circumstances here presented.
Petitioners' pp argument misses the point that 10 CTR $ 2.714(a)(1)(v) does not speak to the procedural question whether the operating license amendment should be issued prior or subsequent to the conduct of a requested hearing.
See Section 189a(2)(A) of the Atomic Energy Act (42 U.S.C. $ 2239(a)(2)(A)) and 10 CPR $ 50.91(a)(4).
The provision addresses only the question whether the late
" petitioner's participation will broaden the issues or delay the proceeding
" irrespective of whether that proceeding is conducted subsequent or prior to the issuance of the amendment.
In the instant circumstances, it is beyond question that granting i
the untimely Petition would broaden the issues and delay the proceeding.
See Mississippi Power & Light Co., 16 NRC at 1730-31.
The Licensing Board was, therefore, wholly correct in holding that:
The existing parties, the public and this Board have a cognizable interest in the timely and orderly conduct of our proceedings.
See, Houston Lighting and Power
~~/
Petitioners' Brief at 13.
The citation is to Philadelphia 31 Electric Co. (Limerick Generating Station, Unit 1), LBP 6A, 23 NRC 165, 169 (1986).
The Petitioners did not mention that this decision was later vacated on other grounds.
See Philadelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-86-9, 23 NRC 273, 279-280 (1986).
In addition, in vacating its earlier decision, the Licensing Board also m
reversed its earlier determination on this factor, stating that just because the license amendments had already been issued did not mean that licensee would not suffer harm by being required to go to hearing.
Co. (South Texas Project, Units 1 and 2),
)
KEEB-549, 9 NRC 644, 648-49 (1979).
- Thus, the fact that these petitioners are prepared to go forward with their arguments immediately, and that intervention would not delay already issued license amendments does not fully answer the policy consideration
)
underlying the Commission's concerns under this factor.
e e
Moreover, despite claims under this
)
factor to the contrary, we note that petitioners strenuously argue in terms of the ability of others to represent their interests that petitioners proffered contentions focus on different matters than those addressed in Intervenors' remaining
)
contentions.
See, Clarification at 10-13.
Thus, the purpose of the instant petition is, in fact, to broaden the scope of this proceeding.
While this consequence of a late intervention might not be of critical importance at the earlier stages of a case, we find it to be a strong argument against such intervention where it occurs toward the end of the proceeding, particularly where no
" good cause" exists to justify the delay in seeking intervention. 32/
C.
Conclusion The Licensing Board was correct in finding that three of the five factors weighed against a grant of late intervention to Petitioners. 33/
In view of the foregoing, the Licensing 32/
LBP-90-5 at 15-16.
-~/
In addition to these three factors, Licensee submits that 33 another factor (representation by existing parties) also weighs against a grant of late intervention.
At the March 21, 1989 prehearing conference, Mr. Saporito was seated at counsel table with Ms. Lorion and was identified by her as a member of the Center for Nuclear Responsibility ("CNR"), one of the Intervenors in this proceeding.
(Transcript of March 21, 1989, prehearing conference at 5).
Therefore, it may be presumed that CNR is an adequate representative of his (continued...)
) Board did not abuse its discretion in denying the Petitioners'
" eleventh hour" effort to intervene.
It was clearly correct.
)
SUMMATION As demonstrated in Parts One and Two of this Brief, the
)
Licensing Board's rulings in LBP-90-4 and LBP-90-5 should be affirmed.
In LBP-90-4, the Licensing Board correctly concluded that no genuine issue of material fact had been raised, that
)
Licensee had met its burden of proof on Contention 2, that the Licensee was entitled to a decision as a matter of law and that the Turkey Point P/T limits proceeding should be dismissed.
Additionally, in LBP-90-5, the Licensing Board weighed the five factors for an untimely petition to intervene and correctly concluded that Petitioners should not be granted intervention.
In particular, the Licensing Board carefully reviewed Petitioners' arguments and concluded that Petitioners had not
~~/(... continued) 33 interests.
Moreover, all of the issues raised by Petitioners are essentially the same as the issues raised by Intervenors, which were addressed in the proceeding.
Given that Mr. Saporito is a member of one of the Intervenors and is raising essentially the same issues as the Intervenors, it is difficult to imagine a more compelling situation for finding that a petitioner's interests are adequately represented by existing parties.
(
0 advanced any reason which constitutes good cause for their D
untimely petition to intervene.
Respectfully Submitted, kf Harold F. Reis Steven P. Trants Kenneth C. Manne g
Newman & Holtzinger, P.C.
1615 L Street, N.W.
Washington, D.C.
20036 (202) 955-6600 Co-Counsel D
John T. Butler Steel Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131 (305) 577-2800 g
Dated this 3rd day of April 1990.
D D
D D
D
0 0XP.ITED USNRC Q
UNITED STATES OF AMERICA WDCLEAR RBGULA'ICRY CONNISSION y g 4 p3 34 BEFORE THE A'!CNIC SAFETY AND LICENSING APPRAbt904RO tudy M ti w.2 M,e.'it i N t.tp O
In the Matter of
)
)
FLORIDA POWER & LIGHT COMPANY )
Docket Mos. 50-250 OLA-4
)
50-251 OLA-4 (Turkey Point Plant,
)
g Units 3 & 4)
)
(P/T Limits)
)
CERTIFICATE OF SERVICE O
I hereby certify that copies of aLicensee's arief In Response To The Appeals of The Licensing Board's January 16, 1990 Memoranda and Orders" were served on the following by deposit in the United States mail, first class, properly stamped and addressed on the date shown below.
O Christine N. Kohl, Chairman Horward A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Thomas A. Moore B. Paul Cotter, Jr., Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board 9
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C. 20555 Glenn O. Bright Jerry Harbour D
Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 D
D
l O
~2-Atomic Safety and Licensing Atomic Safety and Licensing g
Board Panel Appeal Board Panel Ajudicatory File Adjudicatory rile U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 (two copies)
(three copies)
Office of the Secretary Joette Lorion, Director U.S. Nuclear Regulatory Center for Nuclear Commission Responsibility Washington, D.C.
20555 7210 Red Road $207 5 ATTN Chief, Docketing and Miami, riorida 33143 g
Service Section (Original plus two copies)
Janice Moore,'Isquire Richard Goddard Patricia A. Jehle, Esquire U.S. Nuclear Regulatory office of General Counsel Commission O
U.S. Nuclear Regulatory 101 Marietta St., N.W.
- 2900 Commission Atlanta, Georgia 30323 Washington, D.C.
20555 John T. Butler, Esquire Thomas J. Saporito, Jr.
O Steel Mector & Davis Executive Director 4000 Southeast Financial Nuclear Energy Accountability Center Project Miami, Florida 33113 1202 Sioux Street Jupiter, Florida 33458 9
Dated this 3rd day of April 1990.
1 4 x w / C. / h Kenneth C. Manne Newman & Holtzinger, P.C.
1615 L Street, N.W.
B Suite 1000 Washington, D.C.
20036 B
D
_