ML20054C106
| ML20054C106 | |
| Person / Time | |
|---|---|
| Site: | Clinton  |
| Issue date: | 04/16/1982 |
| From: | Goddard R, Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8204200040 | |
| Download: ML20054C106 (11) | |
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04/16/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket No. 50-461 OL p D ' fg ILLIN0IS POWER COMPANY, et al.
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(ClintonPowerStation, Unit 1)
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NRC STAFF RESPONSE IN OPPOSITION TO 12 T,A
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INTRODUCTION AND BACKGROUND By an Order dated May 29, 1981, Prairie Alliance and twelve of its proposedcontentionswereadmittedtothisproceeding.1/ Although certain of Prairie Alliance's proposed contentions were denied in that order, the Board stated that if upon review of the Staff's treatment in the Safety Evaluation Report (SER) of certain generic safety issues Prairie Alliance desired to offer more specific contentions it may do so.
Order at 14. The SER was issued on February 16, 1982. During a con-ference call of March 17, 1982, the Prairie Alliance was given until March 29, 1982, to file contentions stemning from the SER.
On March 26, 1982, the Prairie Alliance filed eight proposed conten-tions. On April 1,1982, the Board conducted an extensive conference call wherein all parties stated their positions on each of the proposed supplemental contentions. At the close of that conference, the Board
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See, Memorandum and Order (Admitting Petitioners, Accepting Contentions, And Ordering A Hearing) dated May 29, 1981.
DESIGNATED ORIGINAL 8204200040 8204
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directed all parties to memorialize their positions in a filing.
Subse-quently, on April 12, 1982, the Prairie Alliance filed a "Brief in Support of Supplemental Contentions" and the Applicants filed " Response of Applicants to Prairie Alliance's Proposed Supplemental Contentions."
The Staff was given until April 16, 1982, to respond.
Although each proposed contention will be addressed in turn, at the onset it should be stressed the Staff opposes the admission of each of the proffered contentions for one or more of the following reasons:
(1) Prairie Alliance has improperly used this filing as an op-portunity to cure defects in previously raised contentions which have been properly rejected by this Roard; (2) Prairie Alliance has not established how the general subject matter of each proposed supplemental contention is derived from specific inadequate Staff analysis in the SER; (3) even assuming any of the proposed contentions is found to have derived from the SER, each is so vague and lacking in specificity as to be inadmissible under the standards of 10 C.F.R. 9 2.714(b); and (4) recent amendments to the Commission's regulations make certain of the proffered contentions impermissible subjects for litigation.
Each contention will now be addressed.
II. DISCUSSION Contention 1 Contention 1 deals with alleged inadequate treatment by the Applicants and Staff of measures which may be taken to mitigate the
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consequences of a " Class 9" or beyond design basis accident. As stressed during the April 1, conference call, Prairie Alliance's earlier proposed contention 5 questioned low probability accidents in the same general fashion proposed Contention 1 deals with this matter, and it was earlier rejected by this Board as lacking the specificity required by 10 C.F.R. 6 2.714(b). -
Although it is correctly stated in " Prairie Alliance Brief in Support of Supplemental Contentions" that former Con-tention 5 was denied without prejudice to file a more specific contention after Prairie Alliance had a chance to study the Staff's FES and SER, prcposed supplemental Contention 1 is no more specific than what had previously been rejected by this Board.
In addition, Prairie Alliance makes no attempt to explain the nexus between this most recent contention andtheStaff'sSER.E Concededly, the FES has not yet been issued.
However, the DES for Clinton, at p. 5-41 through 5-45, 1 5.9.4.1.4.2 entitled "Probabilistic Assessment Of Severe Accidents" presents a discussion of the environmental consequences of a beyond design basis or
" Class 9" accident.
Proposed supplemental Contention 1 in no way references the discussion of low probability accidents set forth in the DES and does not attempt to draft a more specific contention than previously rejected l
Contention 5.
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See, " Prairie Alliance Revised Petition for Leave to Intervene and Request for Hearing" dated March 30, 1981, (March 1981 Petition) at 8, and Board Order of May 29, 1981, at 10.
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Although in " Prairie Alliance Brief In Support of Supplemental Contentions" at 2, Intervenors state Contention 1 is based upon inadequate treatment of this topic in the SER, no citation to the SER is given where that inadequate treatment is found or where such an analysis should have been.
For the foregoing reasons Contention 1 should be denied as (1) improperly attempting to again raise a contention which has been previously rejected; (2) not deriving from an identified inadequate Staff analysis in either the SER or DES and; (3) being unreasonably vague and lacking in specificity so as to be inadnissible under 10 C.F.R. 9 2.714(b).
Contention 2 Contention 2 alleges both the Applicants and Staff inadequately considered alternatives to the Clinton Power Station, such as coal, solar and wind technologies.
10 C.F.R. % 51.53 of the Commission's regulations was amended by adding a new paragraph (c) which states:
(c) Presiding officers shall not admit contentions proffered by any party concerning need for power or alternative energy snurces for the proposed plant in operating license hearings.
47 Fed. Reg. 12943, March 26, 1982.
Effective April 26, 1982.
By reason of this amendment proposed Contention 2 should be denied.
Contention 3 Contention 3 states the Applicant and Staff inadequately assessed the need for Clinton Power Station and its associated production costs.
To the extent this contention seeks to litigate the need for Clinton Power Station, the amendment to 10 C.F.R. 6 51.53 quoted above should be sufficient grounds for denying this aspect of the contention. Similarly, a recent amendment to 10 C.F.R. 9 2.104 of the Commisson's rule prohibits i
the litigation of Illinois Power's ability to finance the costs involved in making plant modifications and/or decommissioning.
10 C.F.R. 9 2.104(c)(4) addresses what may be litigated in an operating license 1
hearing and, as amended, states-l t
(c)(4) Whether the applicant is technically and financially qualified to engage in the activities to be authorized by the operating license in accordance with the regulations in this chapter, except that the issue of financial qualification shall not be considered by the presiding officer in an operating license hearing if the applicant is an electric utility seeking a license to operate a production or utilization facility of the type described in 5 50.21(b) or Q 50.22; 47 Fed. M. 13753, dated March 31, 1982.
The Staff's position derives further support from Houston Lighting
& Power Co. (Allens's Creek Nuclear Generating Station, Unit 1), ALAB-671, March 31,1982 where the Appeal Board in the context of a construction permit application, dismissed an Intervenor whose sole issue was the financial qualifications of an Applicant, relying upon 10 C.F.R.
Q 2.104(b)(1)(iii) (the equivalent of subpart (c)(4) applicable to construction permit hearings). Thus, Contention 3 in its entirety should be denied on the grounds of the two recent amendments referenced above.
Contention 4 Contention 4 alleges General Electric recently announced it will withdraw from the nuclear hardware market. Considerable discussion occurred during the conference call of April 1,1982, relative to the factual validity of that assertion.
In their reply to Prairie Alliance's proposed Contention 4, Illinois Power attached to its pleading a letter from W. H. Bruggeman, Vice President and General Manager of G.E.'s Nuclear Energy Business Operations evidencing General Electric's continued intent to satisfy its obligations under existing Nuclear Steam Supply contracts. I 4f See, " Response of Applicants to Prairie Alliance's Proposed Supplemental Contentions," Exhibit 1, dated April 12, 1982.
In accord with the Staff's understanding of the Board's oral ruling during the April 1,1982 conference call, it is now incumbent upon Prairie Alliance to supply factual information refuting the attachment to the Applicant's response as a precondition to this contention being admitted. The Staff submits that the news release submitted as an enclosure to Prairie Alliance's April 12 Brief in no way serves to refute Applicant's submitted information since it specifically states G.E. will continue to service its existing contracts. Therefore, the Staff continues to object to the contention as presently drafted as both vague and lacking basis.
10 C.F.R. % 2.714(b).
Contention 5 New proposed Contention 5 is simply a restatement of previously raisedandrejectedproposedContention8.5/ Proposed Contention 5 provides the most vivid example of Prairie Alliance simply refiling a previously rejected contention under the guise of an SER generated concern. Specifically, there has been no nexus shown by Prairie Alliance between the manner in which the Staff analyzed the systems interaction problem in the SER and proposed supplemental Contention 5.
Again, the Board's May 29, 1981 Order did not give Prairie Alliance the right to file the same, previously rejected contention, but rather a more specific contention stemming from the SER.
In addition, systems interaction is a generic unresolved safety item presently being considered by the NRC Staff.
See NUREG-0606, Task A-17.
In this regard, the Appeal Board has 5/
See, March, 1981, Petition at 13, and Board Order of May 29, 1981 at 10-11.
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held that, in order to plead a valid contention based on a task action plan, the following is required:
To establish the requisite nexus between the permit or license application and a TSAR item (or task action plan) it must generally appear both (1) that the undertaken or contemplated project has safety significance insofar as the reactor under review is concerned; and (2) that the fashion in which the application deals with the matter in question is unsatisfactory, that because of the failure to consider a particular item there has been an in-sufficient assessment of a specified type or risk for the factor, or that the short term solution offered in the application to a problem under Staff study is inadequate.
Gulf States Utilities Company (River Bend Station Units 1 and 2),
ALAB-444, 6 NRC 760, 773 (1977).
Cf_. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8NRC245(1978).
Prairie Alliance has man Uestly failed to meet this burden.
River Bend and North Anna both teach that explanations of each such item should appear in the SER for the facility in question as they have in the SER for Clinton. However, those cases do not serve to inject each of these unresolved generic safety issues into the administrative hearing process for a full airing of the Staff's decision making process. Prairie Alliance has not asserted with requisite specificity why Clinton Power Station cannot operate safely, due to an inadequate resolution of the systems i
l' interaction question. Accordingly, a contention dealing with such an i
issue, framed in the manner of proposed Contention 5, should be rejected.
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Contention 6 l
l Proposed Contention 6 provides another example of Prairie Alliance attempting to submit a contention no more specific than a contention l
which has previously been denied as being too vague to meet the requirements of 6 2.714(b). Prairie Alliance initially submitted a contention dealing with hydrogen control as proposed Contention 10(f) in its tiarch 30, 1981, petition. That contention was opposed by the Staff and denied by this Licensing Board as being too vague to meet the requirements of 6 2.714. Additionally, the issue of hydrogen mixing ability to containment post-LOCA, generic task B-14, was referenced by the Prairie Alliance in proposed Contention 19 in their March 30, 1981 petition. None of these earlier contentions was found acceptable by this Board. Since that time, there has been no nexus shown by Prairie Alliance with respect to how the hydrogen control issue was analyzed by the Staff in its SER and proposed supplemental Contention 6, accordingly, this proffered contention is beyond the scope of the Board's Order granting Prairie Alliance an opportunity to supplement its list of contentions. Even assuming this contention is properly filed at this time, as drafted it is as vague and lacking in specificity as the earlier similar contentions, and should thus be ruled inadmissible under 10 C.F.R. Q 2.714(b).
Contention 7 In " Prairie Alliance Brief In Support of Supplemental Contentions" at 7, Contention 7 is withdrawn and hence will not be addressed in this pleading.
Contention 8 Prairie Alliance's fonner proposed Contention 9 filed March 30, 1981 dealt with the economic and social effects of station operation. That proposed contention contained a number of the issues set forth in present
Proposed Supplemental Contention 8.
The initial proposed contention, however, was opposed by the Staff and denied by the Licensing Board as lacking the specificity required by 10 C.F.R. % 2.714(b). Accordingly, a contention dealing with identical subject matter should not be admitted into litigation at this advanced stage of the proceeding.
In addition, no attenpt has been made by Prairie Alliance to identify where or explain how the Staff's treatment of this issue in either the SER or DES is inadequate.
Since no nexus has been established between this contention and either
. the SER or DES, it should be denied.
Ill. CONCLUSION For the aforesaid reasons, each of the eight supplemental contentions of Prairie Alliance should be denied.
Respectfully submitted, s _.
i ay M. Gu errez Counsel for NRC Staff 2ab,2).
s4 Richard J. Goddard l
Counsel for NRC Staff l
Dated at Bethesda, Maryland this 16th day of April, 1982.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ILLIN0IS POWER COMPANY, et a_1_.
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Docket No. 50-461 OL (Clinton Power Station, Unit 1)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO PRAIRIE ALLIANCE'S PROPOSED SUPPLEMENTAL CONTENTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 16th day of April, 1982:
Sheldon A. Zabel, Esq.
Hugh K. Clark, Esq., Chairman William van Susteren, Esq.
Administrative Judge Schiff, Hardin & Waite P.O. Box 127A 7200 Sears Tower Kennedyville, Maryland 21645 233 South Wacker Drive Chicago, Illinois 60606 Dr. George A. Ferguson Administrative Judge Philip L. Willman, Esq.
School of Engineering Assistant Attorney General Howard University Environmental Control Division 2300 Sixth Street, N.W.
188 West Randolph Street, Suite 2315 Washington, D.C.
20059 Chicago, Illinois 60601 Dr. Oscar H. Paris
- Mr. Herbert H. Livernore Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Clinton Nuclear Power Station U.S. Nuclear Regulatory Commission RR 3, Box 229A Washington, D.C.
20555 Clinton, Illinois 61727 i
Prairie Alliance Jeff Urish, Vice President P.O. Box 2424 Bloomington-Nortnal Prairie Alliance Station A 730 Wilkins Champaign, Illinois 61820 Normal, Illinois 61761 l
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Reed Neuman, Esq.
Gary N. Wright Assistant Attorney General Illinois Department of Nuclear Safety 500 South Second Street 1035 Outer Park Drive, 5th Floor Springfield, Illinois 62701 Springfield, Illinois 62704 Atomic Safety and Licensing Atomic Safety and Licensing Board Panel
- Appeal Board Panel
- U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Jan L. Kodner, Esq.
173 W. Madison Street Suite 1004 Chicago, IL 60602 n el f
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