ML20054E082
| ML20054E082 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 04/22/1982 |
| From: | Matt Young NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8204260113 | |
| Download: ML20054E082 (9) | |
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l STAFF 4/22/82 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
COMMONWEALTH EDIS0N COMPANY Docket Nos. 50-454 cr>
50-455 4
g (Byron Station, Units 1 and 2)
Y REceggyQ NRC STAFF RESPONSE TO ADMISSION OF t
APR 2 DAARE/ SAFE " REVISED CONTENTIONS"
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INTRODUCTION 4
ta On April 15, 1982, Intervenor DAARE/ SAFE filed a list of three
" revised contentions" numbered 10, 11 and 12, which it offers for admission for litigation in the above-captioned proceeding. These contentions apparently were filed pursuant to the Licensing Board's September 9,1981 Scheduling Order which provides that contentions based on new information in the Supplement to the Byron Safety Evaluation Report (SSER) may be filed on April 16, 1982.
For the reasons stated below, the Staff objects to the admission of DAARE/ SAFE contentions 10, 11 and 12.
II. DISCUSSION The Board's September 9, 1981 Scheduling Order provided that
" contentions based on new SSER information" were to be filed April 16, 1982, and that responses to these " revised contentions based on new SSER information" were to be filed April 23, 1982. Order at 2.
The Staff's understanding of the Board's Scheduling Order is that DAARE/ SAFE was provided an opportunity to revise or amend its previously admitted contentions (1,2,2a,3,4,6,7,8,9) based upon new information DESIGNATED ORIGINAL m 7 d, gg04260 ll3 j
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, t contained in the Marqh 1982, Byron SSER, which was distributed to the
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parties by letter of NRC Staff counsel, dated March 31, 1982. This revision would thus update the contentions adraitted by the Board in its December 19, 1980 Order. DAARE/ SAFE, however, has apparently interpreted the Board's order as an opportunity to file completely new contentions.
These contentions are not founded upon new information in the SSER.
Accordingly, DAARE/ SAFE has nubmered these additional contentions 10, 11 and 12.
Contention 10 asserts that there is inadequate assurance that the Applicant will maintain occupational exposures "as low as is reasonably achievable" (ALARA) because its dose assessment program does not meet certain NRC acceptance criteria.
Contention 11 claims that turbine-generator placement and orientation are unfavorable relative to the reactor building.
Contention 12 clairas that the alternative power systems to be used in the event of loss of off-site power are unsafe because they rely on inadequate power components (DC storage battery and possibly defective Hayward-Tyler deisel generator coolant pumps).
Cor.tentions 10 through 12a refer to documents that were in existence prior to the SSER (i.e., the FSAR, SER, NUREG-0800, Regulatory Guide 1.115) and raise matters unrelated to DAARE/ SAFE's previously l
admitted contentions. Contention 12b, which challenges the use of Hayward-Tyler pumps, not only raises matters unrelated to DAARE/ SAFE's previously admitted contentions, but also does not rely on new information in the SSER. The l
l Applicant's use of these pumps was not described in the SSER, SER or the Applicant's FSAR. Since these so-called revised contentions are not based upon new information in the SSER, they should be rejected for failure to comply with the terms of the Board's September 9,1982 Order.
Even assuming that the Board's Order gave DAARE/ SAFE leave to file new contentions, as discussed above, it has violated the Board's order by raising issues that are not based on new information in the SSER.
Since the proposed contentions are totally new and are not the revised or amended contentions contemplated by the Board's Scheduling Order, these late-filed contentions should be admitted only if they satisfy the specificity and lateness requirements of 10 C.F.R. 5 2.714.
Pacific Gas & Electric Co. (Diablo Canyon, Units 1 and 2), CLI-81-5, 13 NRC 361, 364(1981); Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear s
Station), LBP-79-22, 10 NRC 213, 214 (1979); Florida Power & Light Co.
(Turkey Point Nuclear Generating Station, Units 3 and 4), LBP-79-21, 10NRC183,190(1979).1/
Late-filed contentions will be admitted to a proceeding upon a favorable balancing of the five factors in 10 C.F.R. 9 2.714(a)(1).
These factors are:
(i) Good cause, if any, for failure to file on time.
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10 C.F.R. $ 2.714(b) provides that a supplement to an intervention petition containing a list of contentions must be filed not later than 15 days before a special prehearing cc7ference held pursuant to @ 2.751a or, if there is no special prehearing conference,15 days before the first prehearing conference. After this time, new, amended or supplemental contentions set forth with " reasonable specificity" may be admitted based upon the five-factor balancing test of 9 2.714(a)(1).
10 C.F.R. 6 2.714(b). While the language of 2.714(b) does not explicitly refer to late-fi~ed contentions, the Statement of Consideration accompanying the revision of Section 2.714 states that this section was " revised to specifically provide that late filed contentions (a contention or amended contention which is filed after 15 days prior to the special prehearing conference...) will be considered for admission under the clarified criteria set forth in [$ 2.714(a)(1)]." 43 Fed. Reg.17798 (April 26, 1978).
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
10 C.F.R.
%2.714(a)(1).
The burden is on the proponent of a late-filed contention to justify its tardiness.
Duke Power Co. (Perkins Nuclear Station Units 1, 2 and 3),
ALAB-431, 12 NRC 350, 352 (1980); Metropolitan Edision Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977). The most weight is attributed to factor one, whether there is good cause for the filing delay. The Appeal Board has ruled that where there is no good excuse for the tardiness of a petition, a petitioner's demonstration on the other factors must be particularly strong.
Perkins, ALAB-431, 6 NRC 460, 462 (1977). The second and fourth factors, however, are generally given relatively. lesser weight than the other factors.
South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1),
ALAB-642, 13 NRC 881, 895 (1981).
DAARE/ SAFE has not addressed these factors but has merely filed a list of contentions. Thus, the Intervenor has failed to set forth any basis to justify the admission of its late filing.
The balancing of the five factors do not favor the admission of these contentions at this late date. As to the first factor, good cause for failure to file on time, new information in previously unavailable documents may justify the admission of late-filed contentions, unless special considerations would dictate otherwise.
. s Electric Co. (Donald >C. Cook Nuclear Plant, Units 1 and 2), CLT-75-25, 5 AEC 13, 14 (1972).
The timing of Contention 10 is inexcusably late. The last revision of the Applicant's dose assessment program was included in the Applicant's FSAR in September, 1979. Clearly, Intervenor could have and should have raised this contention earlier. The ability of DAARE/ SAFE to have raised this issue more than two years ago is also apparent because subparts
- a. through e. of Contention 10 are substantially the same as previously admitted contentions of the Rockford League of Women Voters, a former intervenor in this proceeding.2/
The turbine-generator placement and orientation, which Contention 11 questions, has remained unchanged since the construction permit application and was described in the Applicant's FSAR in Novembe.1978.
It was addressed by the Staff in the construction permit SER (NUREG-75/023), Section 3.5.3, and by the Advisory Committee on Reactor Safeguards (ACRS) in its letter dated May 13, 1975.
In addition, the Applicant's use of DC storage battery units as part of its alternative power system, challenged in Contention 12a, was i
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DAARE/ SAFE Contention 10a corresponds to League Contentions 42 and 112(c), Contention 10b corresponds to League Contention 112(b),
l Contention 10c to League Contention 112(d), Contention 10d to l
League Contentions 42 and 112(a), and Contention 10e to League Contention 111.A(3)(b).
The Staff would also note that in Conention 10, DAARE/ SAFE has misquoted the Staff's SER by stating that it demonstrates the Applicant's method of dose assessment is inconsistent with both the criteria in NUREG-0800 and ALARA. To the contrary, the SER l
concludes that the Applicant's dose assessment method, while I
not specifically in accordance with NUREG-0800, is acceptable l
because it meets the intent of the methods outlined in Regulatory l
Guide 8.19.
SER $ 12.4 at 12-9.
That section makes no mention of compliance with ALARA principles.
l l
. 4 included in its construction permit application, It was addressed by
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the Staff in the construction permit SER ($ 8.3.2) and details regarding the battery units have been in the Applicant's FSAR % 8.3.2 since June 1978.
This information in the FSAR has not changed substantially.
In short, the information upon which Contention 10, 11 and 12a are based has been publicly available for a substantial period of time. These contentions could have and should have been raised much earlier, they are untimely now, and no excuse for the untimeliness has been proffered or is apparent.
In light of the fact that DAARE/ SAFE did not timely file these contentions and has offered no good cause for the delay in raising these matters, factor one weighs heavily against the admissicn of Contentions 10, 11 and 12a.
The timeliness of Contention 12b is not so clear cut. The Applicant's use of Hayward-Tyler deisel generator coolant pumps is not described in the Applicant's FSAR and has not been specifically addressed in the Staff's SER or SSER. The NRC is presently investigating allegations regarding the possibility that the manufacturer may have produced defective pumps. While questions about the pumps are of relatively recent vintage (the flRC became aware of these allegations in the latter half of 1981),
DAARE/ SAFE has not indicated how long it has been aware of allegations regarrling the pumps, florever, the fact that the NRC is investigating allegations concerning certain pump problems does not, standing alone, justify the filing of this contention.
Intervenor has made no connection between the allegations under investigation and the issue it proposes to raise in connection with the Byron facility.
In the absence of any connection between allegations under
' investigation and its proposed contention, DAARE/ SAFE has failed to show that the current investigation constitutes good cause for the late filing of Contention 12b. Therefore, factor one also weighs against the admission of Contention 12b because good cause for the filing of this contention has neither been demonstrated nor is apparent.
The second factor, whether there are other means available to protect DAARE/ SAFE's interest, weighs in favor of the admission of the contentions. This licensing proceeding is clearly the best and possibly the only forum in which to raise the matters of radiological health and safety allegedly raised in the contentions.
The third factor, the extent to which DAARE/ SAFE cen assist in developing a sound record, weighs against admission of the three contentions. DAARE/ SAFE has not indicated any special expertise regarding ALARA programs, turbine-generator placement and orientation, or the two power components of the Applicant's alternative power systems (DC storage battery and Hayward-Tyler pump). Nor has DAARE/ SAFE offered to introduce any te'stimony on these subjects.
The fourth factor, the extent to which DAARE/ SAFE's interest will be represented by existing parties, weighs in the Intervenor's favor.
There appears to be no other party who would necessarily advance and protect whatever specialized interest Intervenor may have with regard to the issues it seeks to raise in this proceeding.
The fifth and last factor, the extent to which petitioner's l
participation will broaden the issues or delay the proceeding, weighs heavily against the admission of the contention. Clearly, the issues 1
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. 4 raised in these proffered contentions are different and broader in scope
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than currently admitted contentions. To this extent, these contentions will, indeed, broaden the issues. While it is not clear whether, and to what extent admission of i.hese contentions would delay the proceeding, there is certainly the possibility that delay will result from the attendant broadening of the scope of issues in the proceeding that admission of these contentions will entail.
As the above discussion demonstrates, the balancing of the five factors, most importantly the lack of good cause for the late-filed contentions and the absence of any demonstrable ability to contribute to an evidentiary record on the subjects advanced, does not favor of admission of the three " revised" contentions.
III.
CONCLUSION In light of the foregoing discussion, DAARE/ SAFE's revised contentions should be rejected for failure to comply with the terms of the Board's order and for failure to satisfy the lateness criteria of Section 2.714(a)(1).
l Respectfully submitted, Mitzi A. Young Counsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of April, 1982.
UNITED STATES OF AMERICA s.
NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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COMMONWEALTH EDISON COMPANY
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Docket Nos. 50-454
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50-455 (Byron Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO ADMISSION OF DAARE/
SAFE ' REVISED 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, by deposit in the Nuclear Regulatory Comission's internal mail system, or, as indicated by double asterisks, by express mail, this 22nd day of April, 1982:
- Marshall E. Miller, Esq., Chairman Mrs. Phillip B. Johnson Administrative Judge 1907 Stratford Lane Atomic Safety and Licensing Board Rockford, Illinois 61107 U.S. Nuclear Regulatory Commission Washington, DC 20555
- Ms. Diane Chavez 602 E. Oak Street #4
- Dr. A Dixon Callihan Rockford, Illinois 61108 Administrative Judge Union Carbide Corporation Dr. Bruce von Zellen P.O. Box Y c/o DAARE l
Oak Ridge, Tennessee 37830 P.O. Box 261 DeKalb, Illinois 60015
- Dr. Richard F. Cole Administrative Judge
- Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulai.ory Commission Washington, DC 20555 Washington, DC 20555
- Atomic Safety and Licensing Appeal l
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- Paul M. Murphy, Esq.
Board Panel Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission One First National Plaza Washington, DC 20555 Chicago, Illinois 60603
- Docketing and Service Section Myron M. Cherry, Esq.
Office of the Secretary of the Comission Cherry & Flynn U.S. Nuclear Regulatory Commission Suite 3700 Washington, DC 20555 l
Three First National Plaza Chicago, Illinois 60602 Region III U.S. Nuclear Regulatory Commission Office of Inspection & Enforcement jhwM Nmap 799 Roosevelt Road Mitti A. Young" Glen Ellyn, Illinois 60137 Counsel for NRC Staff
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