ML20059L844

Applicant Response to Georgians Against Nuclear Energy Amend to Petition for Leave to Intervene.* Petition Should Be Dismissed Due to Gross Deficiencies in Statement of Standing.W/Certificate of Svc

ML20059L844
Person / Time
Site:	Vogtle
Issue date:	09/14/1990
From:	Domby A, Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
References
CON-#490-10832 90-617-03-OLA, 90-617-3-OLA, OLA, NUDOCS 9010010334
Download: ML20059L844 (47)

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DOCKLILD-USNRC '

'90 SEP 17 ; A10iO3j

UNITED STATES OF AMERICA GFTill 0F SECRi

1ARY

~ NUCLEAR REGULATORY-COMMISSION -

00CKL1ING & Si siVICf; i

, -.DR ANCH .

ATONIC SAFETY AND LICENSING BOARD

.In.the Matter of a s <

a s! GEORGIA POWER COMPANY,. t

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31 31 ^

Docket hos. 50-424-OLA t 50-425-OLA-

t. ASLBP No. 90-617-03-OLA

. (Vogtle Electric ,

t Generating Plant, t Units l'and 2)'

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APPLICANTS-RESPONSE TO.-

GANE'8 AMENDMENT TO PETITION FOR LEAVE TO INTERVENE- ,

I. . INTRODUCTION-1' By Memorandum and Order' dated August 16, 1990, theDAtomic

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l' Safety.and; Licensing Board (the " Board) ' scheduled a

,. -prehearing': conference for.SeptemberL19, 1990 and established:

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September 4, 1990-as'the final date on which the petitioner, L , .

, Georgians Against Nuclear Energy-("GANE"), might amend its d July 23, 1990 Petition for Leave to Intervene (the ,

" Petition") to add contentions or cure gross deficiencies ~in-its statement of: standing. The Board also requested Georgia Power Company, 31 -A1.~ (the " Applicants")' (1)^ to- clarify why a -j

' footnote was added to the-Vogtle ElecMic Generating Plant j

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9010010334 900914 PDR ADOCK 05000424) 9- ,

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("VEGP")' technical specifications rather than deleting =the phrase "high jacket water' temperature" (hereinafter "HJWT"). ]  :

tocamend VEGP Technical. Specification Surveillance- ,

q Requiremant S 4.8.1.1.2h(6) (c) , and (2),to explain whether '

s the footnote in question permits-bypassing,in other than-i emergency' conditions. Applicants respond to the Board's.

question in Section IV. below.

On September 4, 1990, GANE filed an " Amendment to Petition' for; Leave to Intervene" (the'" Amended Petition") in which itL attempted to: cure the deficiencies in its standing statement i L and proffered eight contentions.

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l .For the. reasons stated below, the Applicants respectfully L

! submit that the GANE Petition, as amended, should be <

. dismissed, t

L I l -II. THE AMENDED PETITION FAILS TO CURE THE GROSS DEFICIENCIES IN GANE'S STATEMENT ,

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OF STANDING f

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A.-Petitioner's Residence 45 Miles from the VEGP Facility, Bv-Itself, Is Too Far To Establish Iniurv-In-Fact Sufficient '

L To Confer Standina.

l Under the NRC's standards for standing-as confirmed by this Board in its August 16, 1990 Memorandum and Order, the n

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. petitioner must show that the' subject mattertof this" p -procweding will.cause an " injury-in-fact" and that;the-injury L,

is within the " zone of. interest" protected by'the Atomic. -

Energy Act of 1954, as amended (the "Act"). And, as the E

Board noted, in NRC proceedings residence or employm'nt e of a g petitioner or group' member within 50 miles of a facility has l 7 been found sufficient to demonstrate that a person's-interests may be affected (i.e., injury-in-fact) by the  ;

q proceeding's outcome. At the same time, the Board recognized ~ l that mere residence within 50 miles of.the licensed facility- '

f 11s not, standing alone, sufficient to establish the inclusion l , 'of a petitioner within the " zone of interests" protected'by- .

. statute.I' Only-in those cases involving-the construction or operation of the plant itself, with " clear implications for

'the off-site environment," or major alterations to-the

• The cases cited by this Board clearly stand for the.

proposition that 50 miles-is not a talisman conferring i y . jurisdiction. The Appeal Board in Ignnessee'Vallev-Authority <

(Watts Bar Nuclear Plant, Units 1 andJ2), ALAB-413,,5 NRC

- 1418,1421, n.4 (1977), observed that aL50-mile' distance between .

- the residence of.the petitioner's son and the facility was "not

".  : so, great as necessarily'to have precluded a finding of. standing," .,'

jndicating that neither would such a distance have compelled'auch

..n - a' finding. The petitioner'in Houston Liahtina & Power Co.~(South.

F Texas Project, Units;11and 2), LBP-79-10, 9 NRC.439,c445;(1979)

, , i was authorized to represent a resident wit hin 7 miles aof the '

+ plant site, while identified members of an organization;1ived l "1

"little more than a stone's, throw from:the facility or engaged in recreational activities proximate to theJfacility" in virainia Electric &' Power Co. (North Anna Nuc.uar Power' Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56-(1979).

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.v facility _with:a " clear potential'for off-site consequences" n

111s it appropriate to mechanically' apply' a 50-mile distance: to establishEzone of' interest and injury-in-fact. Florida Power

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Company (St. Lucie Nuclear = Power-Plant, Units 1 and 2)~CLI--

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~ 89-26, 30_NRC 325, 329 (1989).

The Commission's regulations mirror its precedent: _a petition =must set forth with_ particularity the interests _of-the petitioner in the proceeding and how-that interest may be affected by the results-of the proceeding. 10 C.F.R.

$ 2.714 (a) (2) . In pleading "how" the interests of the pecitioner-will be affected, the. commission's requirements also specifically call for identification of "the possible effects of any_ order which may be-antered in-the proceeding.

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'on the petitioner's interests." 10 C.F.R. 5 2.714 (d) (1) (iii) .

GANE, an Atlanta-based organization, seeks here to. support its petition on the basis of one identified member'vho v resides at the fringe of the-50-mile distance. If.this-pr oceeding were' for a construction _ permit or an operating-

? license or even involved u majornmodification of the plant,

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'suchLas the redesign and replacement of the on-site electric, 1 i

power supplies'provided to assure core cooling and 1 containment integrity'in the event of postulated accidents, l

Mr. Points' interests might confer GANE standing. The 4 .

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modification involved in this proceeding, in stark: contrast, f

dh$: ;c y 'is not'of'such proportions, involving;only the eliminationLof.- .,

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y E one' automatic trip' function of the' diesel generators. Such a d e,

,,, minorfmodification does not involve the " obvious potential ~

for.off-site' consequences" on which-the nominal 50-mile " zone 1 of interest" and " injury-in-fact" may be presumed. GANE, -

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therefore, cannot simply rely upon the distance between the plant and Mr. Points' residence, but must allege withL .

YJ particularity how the change 1 contemplated by the License '

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Amendments could realistically be seen'to affect Mr. Points' ,.

M IIt/ interests. '

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l B. Petitioner's Economic Interests'Are Not Interests j C Protected by the Act.

The GANE Amended Petition and the accompanying-affidavit p of Mr. Frederick Points asserts,-intpI alia, that injury to ,!

a Mr. Points-property is threatened and that the valueaof-his. 1 y

property will decline in the event'of an accident'at VEGP

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arising from the failure of the. diesel generator. 'This

! economic interest is not " arguably within'the zone of a

interests" protected.by the Atomic Energy Act-of 1954, as amended-(the "Act"). The protected interests under the Act g

relate to radiological-health and safety. .

Detroit Edison Co.

(F.nrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC l l-5 a i

is in

<a 381,_385,- af f 'd. , ALAB-470, 7 NRC 473L (1978)' (citing Portland

-General Electric Co. (Pebble Springs Nuclear Plant,_ Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976)). The-Board' should dismiss the GANE Amended Petition to1the extent.that it is averred that the economic interests of this;GANE member-support. standing.

C. GANE Has Failed to Allece Soecific "Iniurv-in-Fact" Sufficient to Confer Standina.

In situations not involving the construction or operation-of a nuclear plant or major-alterations to the faci'lity with a clear potential for off-site consequences, a petitioner must allega some soecific " injury-in-fact".that-will result ji from the action taken. Florida Power & Licht Co. (St. Lucie.  !

Nuclear Power Plant, Units 1 and'2) CLI-89-21, 30 NRC 325, I 330 (1989). In this proceeding the action taken is;the

_ granting of a change in. technical specifications.whichL y i

permits the elimination of an automatic trip of the-diesel- 1 generators on high jacket water temperature in.an emergency: j mode. The potential consequence to Mr. Points as a result of the proposed change in trip logic is so remote as to be Junreasonably speculative. A proximate relationship between the change which is the subject matter of this proceeding;and- >

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'3-1 personal injury to Mr., Points 11:s not foreseeable, nor has it

- been plead..

The VEGP units comply with the NRC regulations-for:off-site electric power sources, a fact not in issue here.

Specifically, as more fully described in Chapter 8 of the VEGP Final Safety Analysis-Report ("FSAR")', the pla7t, consisting of Units 1 and 2, is supplied alternating current electric power from a 230-kV switch yard. This switch yard supplies power _through two reserve auxiliary trans 'rmers per >

each unit and constitutes the " preferred power sources ' -

.the safety components and systems designed:to safely snur down each unit in the event of a postulated accident. The reserve auxiliary transformers for both-units.are supplied power by two independent feeders. (See, aenerally,- figures 8.2.1-l'through 8.3.1-1 of the FSAR). The output from the .,

- Unit 1 turbine generator (not.the diesel generator) is connected to the-230-kV switch yard. . In addition,.the output

~ from the Unit 2 turbine generator is: connected toca.500-kV switch yard which, in turn, is connected to a 230-kV switch yard via two- 500/230-kV autotransformers. A total of five

- 230-kV transmission lines, as well as the interconnection of

' the two autotransformers, supply power-to the 230 and 500-kV switch yards. consequently, a loss of preferred-off-site; power would require multiple failures: either (1) the loss 7

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c' 3? of.'off-site sources of. power to'the 230-kV switch yard orc (2))

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the. loss:of the two independent feeders to the reserve auxiliary transformers.' Again, each preferred'powerfsource, ,

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fully complies.with-the pertinent NRC requirements and-provides reasonable assurance of off-site power to address-

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i postulated design basis scenarios. Not only has GANE ,

y.. 1 impermissibly failed'to address how injury-to Mr. Points can' arise from the~ change in the trip' logic of the diesel: f J generators as required by the commission's rule, but it)has also implicitly assumed the total loss of the preferred power:

source. Such a loss of preferred power is not proximately related to the design change and, in fact, is neither obvious' 5 nor likely.

-The VEGP facility has a " Class 1E" on-site alternating' .i y

current power system which serves as the power source used in'  !

shutting down the plant following a design basis event. This.

. power' source is divided-into two (2)' independent power

. trains, Traia A and Train B, each fed from the. reserve

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auxiliary-transformers mentioned previously. The: Class 1E '

power system contains " standby" power sources-required:for safe shutdown in the event of loss of all' preferred power sources. One independent diesel generator is provided for each Class lE train in each unit (i.e., %Es (2) per Unit).

These diesel generators are electrically isolated from each 8

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other,' physically separated for fire and missile' protection,- '!

and;tae power.and control cables for the diesel generators >

l and associated switch gear are routed-to maintain physical l q

separation. _In other words, either of two diesel generators -[

r- 5 can provide the requisite power for a unit's safety-related  !

4 equipment and components. Should one diesel generator bs sj tripped by a protective feature or fail,. the redundant train will function as a backup. ,

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Thus,_GANE presumes that both diesel generators for a unit

.rould fail, at least one due to overheating. Viewed relative

. to~Mr.-Points' interests, in order for the HJWT trip bypass -

L j to notentially increase the probability of core damage, a q l I

minimum of three separate and independent failures would haven i F 4 to occur (the' loss of off-site power and' loss of both

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i diesels)._~While this scenario may be articulated (but has  ;

not . been)., that scenario is too remote and speculative to  ?

support a standing requirement of.some specific " injury-in--

f act, "2 as required by the commiasion's. regulations.

'The Applicants are reminded of the childhood-rhyme "for the

- loss of a nail, the horseshoe was lost; for the loss of the 1 horseshoe, the horse was lost; for the loss-of the horse, the i king was lost; for the' loss'of the king,-the kingdom was~ lost."-

'Thecloss of the-kingdom, like the injury to Mr.' Points 45 miles from:the plant,_is not a reasonably foreseeable consequence of

.the loss of the nail or, in this case, the change in the HJWT l trip logic. For this Board to hold otherwise, particularly when t the-Applicants have two horses, would-eviscerate the " injury-in-fact" prong of the standing test found in the Commission's regulations and precedent -- virtually any change which is the 9

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GANE's Amended Petition contains a conclusory. statement.

T C 'that "off-site damages can be reasonably expected"'as a -

1 result'of'the technica1' specification amendments-(the

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. " License Amendments")~ requested by Applicants' May125,~1990 l I

. application.(the " Application").. GANELfails to explain even! , e 1

in simplest terms (i.e., a basis), however, how the License i

-Amendments present the possibility of'o'ff-site damages or how i 3

such off-site damages would encompass specific injury to d p < .

Mr. Points. 'GANE also' refers to a melt-down in its filings,- 'j but a mare reference to such an eventualityifails a to: I L

articulate a logical sequence of events arisina from the= I 1 License Amendments demonstrating' injury-in-fact. This Board, the Applicants respectfully submit, should.neither provide ."

nor presume the missing facts which are not plead; the a

general averments of GANE are a world-apart from specific L-alleged facts needed to sustain the Amended Pctition..

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sq l D. GANE's Assertion of Standina Constitutes a Challenue to HEC-Rules Without The Reauisite 10 C.F.R. E 2.758 Showina.

GANE's presumption of an injury-in-fact to its member Mr. Points due to the elementary License Amendment involved H ,

' here constitutes a challenge to NRC regulations and, for-that .

l subject of a technical specification amendment is a nail. Such a-holding could also'open the floodgates of litigation.

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reason alone,;GANE's petition snould be rejected. There-has. [  !

not even been anl attempt to meet the standards of 10 C.F.R.- Lj 5.2.758 ' which is necessary to challenge Commission 8 '

j j" regulations'in a license proceeding. j i

The License Amendments at issue reflect a.si ple-voluntary . - > ei u,

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y step taken by the Applicants to allow manual nypass of the a.

HJWT trip on the diesel generators except during testing.and=

maintenance of the diesel generators. This change is being l

made only to improve the reliability of the diesel ,

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generators, not to assure compliance.with NRC regulations. j GANE stakes its interest in this proceeding on the bald

- - 1 assertion that disengaging this one trip function will result ~

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in off-site conseq'uences to their member Mr. Points who d resides near the fringe of the 50-mile radius. This'is d a

incredible; for that to occur, a number of NRC requirements D must1be ignored. First, a total loss ci-off-site power must ,

L i: occur resulting in a load shift to'the diesel generators.

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o In the context of this License Amendment proceeding, L Section 2.758 essentially provides that,.with one exception,-.any- 3 L rule or regulation of the Commission or any provision thereof ,  !

shall not be subject to attack by way of discovery, proof, argument or other means in any adjudicatory proceed.ng.- The

, exception to this rule is that a party to a proceeding may petition;:for a waiver of application of a specified rule or._.

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>  ; regulation in a'particular' proceeding on thefsole ground that

.special circumstances: exist:such that application of the-ruleror R regulation would not serve the purposes for which the rule or regulation was adopted. The petition must be accompanied 1byfan i affidavit which sets forth with: particularity the special circumstances which justify the requested waiver.

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, . Assuming arguendo that removal of the-HJWT trip actually then. 1 a

were to resulttin the overheating,' seizure and loss-of a j

.i diesel _ generat.,r,' there is still no impact on Mr. Points.

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The:only effect would be an' economic one on,the Applicants.. g t

As explained earlier, tho'VEGP units are. designed with two t' entirely separate'and independent diesel generators, each of I

- which alone can perform the intended function. In providing- j c :t this system, the Applicants were obligated <in the design to- Li meet the single' failure criterion articulatedLin General- ',

Design Criterion'17. Egg, 10 C.F.R. Part 50, Appendix A. To l q b

L require, as GANE's position must, that you lose-both-diesel .

1 generators because the Applicants have disabled the HJWT trip, _ exceeds th'e single failure criterion, and no showing;' . , _.

has been made, or attempted, to demonstrate why Applicants' compliance with this NRC-regulation does not-provide adequate 'l V ,

protection.

l Nor-can Applicants.suggest a common mode: failure that '

would cause such a result.. Nevertheless,-because the .

s requirement for electric power.is.so'important,-NRC, through a

-its Station-Blackout Rule (10 C.F.R. 5 50.63), obligates r

plant' licensees (1).:to assuma-a total loss of off-site power

'This of course. requires.that we assume the operators fail' i

to_ recognize andLtake action to mitigate the cooling problemain ,

the face ofi both local and control' room alarms when the jacket water high temperature alarm setpoint'is reached as well as when the HJWT trip'setpoint is. reached.

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i .; t followed byla-loss of_both' diesel generators, and (2)'to>

.n o ent'ablish.through prescribed analysesLwhy the plant: remains r.af e . - Applicants have.provided;the.NRC with the requisite:

1 station, blackout analyses for the VEGP facility. GANE again.

does not demonstrate, or-even attempt to demonstrate ~, wh'y NRC's regulations'are inadequate i in this regard and cannot, and shou'dl not,.be applied in this proceeding. GANE,makes not showing that-Applicants fall to-comply with'NRC requirements.

GANE's failure to meet the strictures of Section 2.758 while>

assuming that a series of events occur: which = are;beyond the -

design basis and outside NRC. regulatory requirements is' fatal' to its attempt to show standing inLthis proceeding.

III. THE AMENDED PETITION FAILS TO MEET THE i

NRC'S REOUIREMENTS FOR THE ADMISSION OF CONTENTIONS. i A. The Standards Aeolicable to the-Admissibility of-Contentions in this License Amendment Proceedina.-

, First, as pointed out by Applicants in their August 7,-

1990' Answer to the GANE Petition, it is settled that, in

determining whether it is empowered to entertain a particular.-

issue, a licensing' board must respect the. terms of the notice

.of opportunity for a hearing published by the.NRC for the proceeding'in question.- Northern Indiana Public Service 13

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Commanv (Baillyq Generating Station, NuclearL 1) , J ALAB-619, 12i j

NRC 558,;5651(1980)'. The-NRC June 22, 1990 notice of opportunity for-a hearing in this License' Amendment ,

proceeding.(the " Notice") clearly limits the scope of this proceeding to the-issuance of the License < Amendment. The ,

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License Amendment concerns only the '.ssue of change in.the ^

trip feature-(i.e'., " bypassing" of the diesel generator HJWT I 1

trip). j Second,'anLintervenor's statement of the reasons for h'is.

L contention'must either allege with particularity that an

-applicanteis-not complying-with a specified regulation,.or' I allege,with particularity'the existence and detail of a- 1 i

substantial safety issue.on which.the regulations are silent.;

L L In the absence of a " regulatory gap," the failure to allege a violation of the regulations or an attempt to advocate stricter requirements than those imposed by.the regulations I will result iin a rejection of the contention, the-latter as' .,

an impermissible collateral attack on the Commission's regulations. Public' Service Comnany of New Hamnshire, et al.

l (SeabrooktStation,; Units 1:and 2),LLBP-82-106, 16 NRC 1649; p 1656 (1982): (citina 10 C.F.R. 5 2.758).8 Furthermore, L

• " Particularity" requires not only an allegation of the fact of non'- compliance with'a.specified regulation, but also sufficient' detail 1to. permit the Board to determine h2E the ,

regulation is supposedly being violated. This specificity;is i

necessary to avoid admitting a contention that misstates a 14 '

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? contentions which' constitute a general attack upon'the 4 methods used by the NRC Staff to ensure compliance with  !

, regulations, without raising any issues specifically related:

to the particular proceeding in question, are not' appropriate for resolution in that proceeding. Commonwealth Edison Co.

(Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 i

NRC 683, 690 (1980); .see also MetroDolitan Edison Co. .

(Three Mile Island Nuclear Station, Unit No. 1), LBP-83-76, -

18 NRC 1266, 1273 (1983) (when an NRC regulation permits-the! >

? use of a particular analysis or technique, a contention which ,

J l- asserts that a different analysis or' technique should be-utilized is inadmissible because it attacks the NRC's regulations). The Applicants.have. demonstrated in.Section.

L III.C., infra, that GANE.has failed to meet this second >

requirement with respect to each and every contention it has

• proffered.

Third, a petitioner must comply with the procedural i

requirements applicable to the admissibility of contentions: j which currently appear.in 10 C.F.R. S 2.714(b). 'The NRC is I vested with authority to prescribe procedural requirements as may be necessary to carry..out the purposes of the Act, as regulatory requirement or collaterally-attacks that regulation.by I seeking to impose extra-regulatory requirements. Id., n.7.

i The Commission's rule prohibiting challengest to NRC rules or regulations is discussed in'Section II.D., supra.  ;

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amended,Hincluding' procedures to assure-orderly andiefficient adjudicatory proceedings. Section 161p of the;Act;;42 U.S.C.

.S 2102p. Prior to September, 1989, the Commission's pleading requirements for contentions were'ainimal: "a list of contentions which petitioner seeks to have litigated in the matter and the bases for each' contention set forth with reasonable specificity." 10 C.F.R. $ 2.714 (b)f (January 1, 1989 Edition).- Under these standards the basis for a contention was suf ficient: if the applicant had notice: from' the pleading of the. issue to be litigated and if the contention had some credible foundation in-fact. Kansas'-cas &

Electric Co. -(Wolf Creek Generating Station, Unit 1), LBP-84-1, 19 NRC 29, 34 (1984) (citing Philadelohia Electric'Co' .

(Peach Bottom-Atomic Power Station, Units 2 and-3),1ALAB-216, 8 AEC 13,120-21 (1974)).

On-August 11, 1989, the Commission promulgated new pleading. requirements designed'to improve the licensing process for nuclear. power plants, including the process for.

license amendments. 54 Fed. Reg. 33168.

The revised requirements, effective September 11, 1989, " raised the

. threshold" for the pleading and admission of contentions.- As stated in the Summary of the rule:

The amendments require a person seeking to participate'as a party in an NRC proceeding to file a list of contentions with the presiding officer together with a-'brief explanation of the bases for each contention, a concise-ys 16

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9 statement of the alleged-facts or expert opinion that d; supportithe-contention and which, at the time of the '

filing, the person intends to rely upon in proving the.

contention atLthe hearing, and referencesEto the-specific ,

sources and documents of-which the person is aware and i upon which he or she intends to rely-to establish such-facts or expert' opinions. .i The prior pleading requirement of Section P.714 (b) for pleading a contention's basis was modified, censistant with  ;

the Summary's explanation, by expanding the " reasonable specificity" standard to include' specific information which is needed at this stage of the proceeding by the applicant to a

determine the issue of law or fact controverted and by the presiding officer to determine whether the contention

presents a. genuine dispute between the licensee and the  ;

petitioner on a material issue of law or fact. As amended, L 10 C.F.R. S 2.714 (b) now reads, in part: ,

L

....A petitioner who fails to file a supplement.that  !

l satisfies ~ the requirements of paragraph (b) (2) of this b section with respect to at least one contention will not be permittedLto participate as a party.....

(2)} Each contention must consist of a specific statementf d L of the issue.ofs law or fact to be raised or controverted.

h In addition, the petitioner shall provide the following' l u information with respect to each contention:

L (i)' A brief explanation of.the bases of the - - - ,

contention.:

L (ii) A concise statement of the alleged fact's or

. expert opinion which. support the contention and on n which~the petitioner intends'to rely in proving-the contention at the hearing, together with references to those specific sources and-documents of which the petitioner.is aware and on which the petitioner 17 i

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intends to rely to establish those facts;orlaxpert~

opinion.-

(iii) sufficient information'(which may include;

-information pursuent to paragraphs? (b) (2) (i) and (ii);

of this section) to shown that a genuine dispute.

exists with the applicant'on~a material' issue of law or fact. This showing must include references.tocthe specific portions of the application (including the-applicant's environmental report and safetyLreport) that the petitt.oner' disputes and the supporting reasons for.sa:h dispute, or, if the petitioner believes that the application fails;to_contain information on a relevant matter as required'by law, the identification of each failure and the supporting reasons for:the petitioner's belief.

The nurrent language of Section ' 2.714 (b) , in essence, requires a petitioner to state the applicant's position as to 1 i

a factual or legal issue and the~ petitioner's opposing view, supported by sufficient factual allegations:in' support of its position so that the presiding officer can identify a genuine =

ikPue of material fact or law and the foundation of that genuine issue.'

'The Commission's new standards for sufficiency of pleading ,

-contentions'have not affected the general proposition that a licensing board should'not. address the merits'of a1 contention in

= determining admissibility. The pleading requirement does not call upon-the proceeding. petitioner to make its case,at this, stage of the What has changed under the new Rule of Practice is; that the petitioner has an< obligation to provide sufficient information proposed that the presiding officer can readily. review the-contentions adjudication. and assure that at'least onex is; proper for i

The:ccamission's contention. admission rule unequivocally places these additional obligations-on the .,

petitioner so that a licensing board need not struggle to divine whether a particular contention is properly before'it and, in

~that process, review the pertinent documents, conduct an analysis, provide the technical' expertise, and inadvertently develop an issue for adjudication which, in the first instance, 18

.__ - - - - -- -l

, 2,,

't.;<:, ' i, t .

> L Vm, n i r Finally, ' Section 2.714 (b) (2) (iii) , cited above, requires a a -

showing by the petitioner which must include refacencer to~

'the' specific portions of the-application.that the petitioner. i dispute and the supporting reasons for the dispute. .As , M

.noted by-the Commission:

]

Many.interve.nors in NRC proceedings-already. ably do what. ..)

.is intended.by this requirement: .they: review the application before submitting contentions, explain the  ;

basis for the contention by citing pertinent: portions (of.

the application) and explaining why they have a i

' disagreement with it.

54' Fed. Reg.c33171, column 1-2 (August 11, 1989). [

The~ Applicants recognize that the same standards of ='

e

~ clarity and precision to which a lawyer is held are generallyt a not-applieduto Erg ga intervenors. However) GANE is'not new' l

.to this field. As an intervenor in the 1984-Vogtle Operating:

License proceeding, GANE is certainly aware of the NRC pleading requirements applicable to contentions in.effect-atL ,

that time. In addition, this Board, with clarity.and thoroughness, set forth'the present pleading obligations applicable to these proceedings ~in.its August =16, 1990 Order.

Moreover, even for RIS as intervenors, the applicants must be.sufficiently put on notice as to what it must defend i

against; a sound basis for each contention is required to a

. assure that.the proposed issues are proper for adjudication.

was far from'any view held by the petitioner.

19

~

, ' Consolidated-Edison Co. of M2X2 (Indian-Point, Unit-2) and.

O Power:-Authority of the State of New York (Indian. Point, Unit l 3), LBP-83-5, 17 NRC 134, 136 (198 3 )'. A minimal-basis'

-indicating the potential validity of the contention is d required. Enrico Fermi, supra, 7 NRC at 386-87. Also, even '

.EIS 13 intervenors must be held to the literal terms of their ,

contentions, notwithstanding that such intervenors actually' sought to litigate something.else. Philadelohia Electric Co.

c  :

J (Limerick Generating Station, Units 1 and 2), ALAB-819, 22

• i NRC 681, 709-(1985). Thus, the Board has no affirmative' duty  :

. r, to provide, nor should it provide, allegations or facts i unplead by the-petitioner.

Finally,Ein this proceeding the Board should take the.

" utmost' care" to assure that the "one good contention' rule" is met, since, absent successful intervention, no hearing t

'will be held. Cf. Cincinnati Gas & Electric Co. (William H.

Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 12 (1976).

~

It would be: inappropriate for a licensing board to order.a:

hearing, where, as in this case, the intervenors. assert only_ ,

vague, unsubstantiated objections which demonstrate that intervenors,'who did not even take the time to read carefully:

-the License Amendment documents, do not have a real stake in' ~i this controversy.

N 20

I b E, Ne r .N.

gg . . i Y ;. 5

• O 1

', , 1 1 , <

g ,

"= '

, n

-B.-G&NE's: Contentions Should Be Dismissed for' Gross Failure -]

.i to connly With the Commission's=Pleadina Reauirements.

J

\  !

+ l GANE hasi not met its' pleading cbligations. In its Amended l Petition, GANE requests ganarally "a hearing to fully air the 1

issues raised by.Ge)rgia power's application to bypass the '

i 1 high jacket water temperature trip," but the-AmendedePetition- [

N ,

and associated-conter' ions demonstrate an obvious failure to.

fulfill its obligations under the Commission's new pleading

'l requirements-to develop cognizable contentions. GANE has- )

failed to fulfill this obligation with respect to each and- + J L a--

A prime example is GANE' every contention-it has proffered.

Contention 1, which is premised on the view that-the L Applicants' evaluation " doer, not explain what will alert the operator to potential _ overheating." GANE Contention 2(e) is :j premised on the lack of "some warning to the operator," and .I

-GANE Contention 2(f) similarly, assumes a lack of f

" forewarning" of generator overheating. However,-the-3 Applicants' safety evaluation (Enclos'ure 2 of the  !

Lt LApplication) clearly states that " abnormal values of high 'i jacket water temperature will. continue to be alarmed locally- ,

.and in the control-room. Low jacket water pressure is also- I alarmed. From the time of the high jacket water: temperature

. alarm, the: operator will have sufficient time to react appropriately to abnormal diesel generator condition."'

1' H

21 4

g ..

.[ E. : ,'

l

(' .: .

Furthermore,;;the.NRC' Staff's' July 10, 1990 safety evaluation, at p.12,>also references the local and control room alarms-and' concludes-that such alarms provide sufficient time for the operator to take actions to mitigate abnormal conditions.

Another exampleJof insufficient pleading under the-Commission's new rule is GANE Contention 6, which merely 4

states'that the safety evaluation of the Applicants is ainddequate" and implies that a broader analysis' encompassing the entire diesel generator'must be undertaken. The petitioner fails to provide any information as to the' inadequacy of the Applicants'1 evaluation relative to the License Amendment, any alleged fact or expert opinion in s'upport of a; broader analysis or sufficientiinformation oc

. allegations-to show that a different result'would follow from a broader' analysis and, therefore, that a'genuineLdispute e

exists. GANE Contention 2(c)Lalso fails.to comply with the-Commission's rule. Inatead of providing-aLspecific statement of the issue of law or fact controverted; GANE.merely asks-questions. Clearly, requests for additional.information are

'the, subject matter of discovery and are totally incapable of.

fulfilling petitioner's obligations under-the pleading requirements for contentions.

The Applicants respectfully submit that contentions such as these, as well as each of the other contentions propounded 22 4

~

l.' s s

. .i by GANE, fail-to provide this Board and the' Applicants wit' j the' adequate notice to which they are entitled. As noted by; f the Supreme Court in upholding the Commission's requirements '!

for threshold showings in' contention pleading:

(I)t is still incumbent upon'intervenors who wish~to >

participate ~(in An NRC adjudicatory: proceeding) to structure their participation so_that-it is meaningful, so that it' alerts the Agency:to the intervenors' position and ,

contention . . . . Indeed,-~ administrative proceedings  !

should not be a game or forum to engage in unjustified K

, obstructionism by making cryptic and obscure reference to-matters that ' ought:to be' considered . . . - .

L Vermont Yankee Nuclear Power Corocration v. Natural Resources i Defenses' Counsel, 435 U.S. 519, 553-554, 98 S.Ct. 1197, 1216--- -[

17-(1978).' GANE's Amended Petition and associated. '

contentions do nothing more than vaguely attempt to-identify "

matters that "ought to be" considered.'  ;

The Applicants respectfully request this Board to hold that GANE has not fulfilled the legitimate expectations of the Commission and reject the contentions for failure to comply with the pleading requirements for admissible contentions in this significant and. serious forum. In the

following section, Applicants-demonstrate that each of GANE's E-contentions fails to meet the Commission's standards

applicable to determining the admissibility of contentions.

'As discussed in Section III.C., infra, these matters are, in the main, not within the scope of the issue set forth in the original NRC. Notice and also constitute an impermissible attack on'NRC regulations.

23 j

i a

, ,- ,-, , ~

• 6 T y 4 :;

y ,

aq 4 i

, y.

C. GANE Has Failed'To Proffer At Least One Valid Contention.' 1 GANE Contention 1 j

'GANE contends that the HJWT trip'should not be bypassed' during emergency starts because it-involves a significant ,

hazard. >-i i

GANE fails to allege with particularity either (1) a ,

q specific regulation with which the Applicants'failLto comply, or (2) the existence and detail of a substantial safety issue l i

on which the regulations are silent. GANE appears to be l advocating stricter requirements-than those imposed by regulation, and, as such, this: contention constitutes an

' impermissible attack on NRC regulatics.

1 >

I GANE's stated factual support for this contention ~ is -(1): q 1

the fact that the switch is designed to protect the: diesel generator from overheating'during an emergency,~and,(2)fthat j t.

the' Applicants' May 25, 1990 Application!does'not explain ]

~

what will alert the operator to potential overheating. .

3 Neither -items (1) nor (2) constitute a concise statement of facts or expert. opinion which support the contention. As l

-j discussed earlier, the Application does,~in fact, explain i 1

what will alert the operator to potential overheating. GANE j fails to cite any portion of the Application which it  !

24

--S' t e'-&w- * - _ _ _ _ . . _ _ _ _ _ . _ _ . _ _ _ _ ______ -

p.

91  !!

A fe a l

u disputes!and fai'1s'to provide any supporting reasons for why J!

the HJWT trip bypass constitutes a significant hazard.

j Therefore,.this contention fails to comply.with the!NRC's now: j pleading requirements.

I For the foregaing reasons,;the Board should dismiss GANE ' i Contention 1. j

'I GANE Contention 2(a)

L .

l GANE contends that the manufacturer designed tb. Jiasel  !

\ .

generator such'that the HJWT trip should not be oypassed'and ,

that.the Applicants have not shown a reasonable basis for the proposed. bypass.

This contention should be rejected for at least two d

. reasons. First, GANE fails to allege with particularity

~

eithere(1).3a specific regulation with which'the Applicants )

faili-to. comply, or (2) the existence and detail:of a substantial: safety issue on which the regulations.are silent.

Even assuming that the diesel generator manufacturer did i ;;

design the HJWT trip not to be bypassed, the failure to comply'withithat design would not-constitute an admissible t

contention since NRC requirements permit.such-bypassing

-Specifically,,NRC Regulatory. Guide l'.9, Revision 2, allows the HJWT trip to be bypassed under accident conGitions l 25 L

p 1L

i provided the1 operator has_ sufficient time to react

-appropriately to.an abnormal diesel generator condition.

$econd; GANE has failed to provide a concise. statement of the alleged' facts-or expert opinion which~ support the '

j 1

contention and on which GANE intends to rely in proving the j contention. GANE also' failed to cite any portion of thel Application which it disputes. GANE's contention is [

apparently; based on its lack of review of the License Amendnent documents.

For the forego'ing reasons, the Board should dismiss GANE -!

Contention 2(a). t l

GANE Contention 2 (b) l' GANE contends that it is." safer" to'have the HJWT trip

. operate automatically so as to eliminate the possibility of

. operator error.

'GANE fails to allege with particularity either (1) a specific regulation with which~the Applicants fail to comply, 1-or (2) the existence and detail'of a substantial safety. issue .

on which the regulations are silent. GANE appears to be.  !

L .

advocating stricter requirements than those imposed by.

p regulation, and, as such, this contention constitutes an  !

impermissible attack on NRC regulations.

I 26 I

k

t i.

i' Further,fwhile this contention may be a specific statement l of z fact to-be' controverted, it is devoid of any explanation ,

of bases and any statement of alleged facts or expert opinion! i which support the-contention. A single factual n'. legation or. .

conclusory statement, by itself, is insufficient. There is-

• no explanation of what operator actions may be performed-in e r r o r .- Since there is no basis for this contention,-it clearly fails to comply with both NRC's prior Rules of Practice as well as NRC's new, more stringent pleadirg >

requirements and should be rejected.

For-the foregoing reasons, the Board should dismiss GANE Contention 2(b).

i GANE Contention 2(c) >

GANE " Wonders" what additional operating procedures and training the Applicant is planning to provide to prevent or respond to overheating during an emergency.

GANE Lf ails to allage with particularity either (1) a specific regulation with which the Applicants fail to comply, or-(2) the existence and detail of a substantial safety issue on which the regulations are silent. GANE may be advocating!  ;

stricter requirements than those imposed by regulation, i.e.,

additional operating procedures.and training, in which case,

?

27

.___-_:________ 1

1)-4

- : y y ,

V.. '

h

- 4 l 3h ,

, this contention constitutes'an impermissible attackJon'NRC-

~'

, regulations.

Furthermore, this. statement is-not a contention at-all.. .

Rather, it is a request-for information. -Therefore, Lit-fails to fulfill the requirements-for (1) a' specific ~ statement lof issue of law or fact controverted,'and'(2) a sufficient-1

~

showing that-a genuine dispute exists on a material' issue of-law or fact.

Even'ifLthe Board chooses to rephrase this request?for 1 information into a contention, it is clear that such i contention should be dismissed for failure to provideia.

statement of alleged-facts or expert opinion which support ~ >

the contention'and on which GANE intends to rely in proving ,

-the contention at the hearing. This contention clearly fails to meet both NRC's prior Rules of-Practice and NRC's new, ,

4 more stringent pleading requirements.

For the foregoing reasons, the Board'should dismiss GANE Contention 2(c).

i GANE Contention 2(d) m.. j GANE asserts, in effect,-that the Applicants should repair

or replace the HJWT trip switch rat

.ar than-bypass the switch.

t 28

- - .- . .-. . . =

I l

l This contention should be rejected for three reasons. '!

l First, the issue of whether the switch should be repaired or )

replaced is an entirely different inquiry than the issue j i

before the Board. The Applicants' review and analysis of  !

I alternatives to the License Amendments, if any,- is not a  ;

proper matter for this proceeding; only the particular

]i alternative chosen by the Applicants and addressed in the j Application can be appropriately challenged as coming within the Commission's June 22, 1990 Notice. In other words, this j proceeding concerns only the issue of whether the HJWT trip may be safely typassed. Therefore, this contention should be i rejected because it raises an' issue outside of the scope of this proceeding.

Second, GANE fails to allege with particularity either (1) a specific regulation with which the Applicants fail to comply, or (2) the existence and detail of a substantial safety issue on which the regulations are silent.

Third, GANE again has failed to provide any basis for support of its contention that the HJWT trip switch should be  ;

repaired. The proffered contention is no more than a cornlusory observation of an obvious alternative. There is 4>

.no basis for advocating it, no factual statement or expert opinion to support it, and no citation to Applicants' Application with identification of the basis of problems.

29

_ . _ _ .._ , .__ , . . , ~ . . _ _ . . _ _ _ ,- . _ __ _. ._ _ _.

. j i

i I

1

.Therefore, this contention also fails to meet'NRC's prior f Rules of Practice as well as NRC's new, more stringent pleading requirements. '!

For the foregoing reasons, the Board should dismiss GANE Contention 2(d).  !

i k

-f GAME Contentions 2(a)(f) )

i GANE contends that even if the Applicants can demonstrate  !

the HJWT trip can safely be bypassed, the Applicants must provide reasonable assurances that the gentrator will not- '

overheat in an emergency withcut some warning to the  !

~

operator. GANE also states that it does not " understand" how the Applicants will be forewarned of diesel generator I overheating and that the Application is inadequate because it fails to provide an analysis of how the Applicants will be so t forewarned.  ;

GAnn fails to allege with particularity either (1) a I

specific regulation with which the Applicants fail to comply, or (2) the existence and detail of a substantial safety issue on which the regulations are silent. 1 Further, these contentions do not provide sufficient information to show that a genuine dispute exists on a material issue of law or fact. As discussed earlier, the Application and the NRC July 10, 1990 safety evaluation do 30 i

i

l-explain how the operator will be forewarned of diesel generatur. overheating. These contentions demonstrate that GANE has failed to comply with its " ironclad obligation" to examine _the publicly available documentary material in its posser,sion, gas Duke Power Co. (Catawba Nuclear Stat' ion, Ur " - 1 and 2), ALAB 687, 16 NRC 460, 468-(1982), vacated in ocrt on other arounds, CLI-83-19, 17 NRC 1041 (1983).

Finally, GANE has failed to provide any statement of clieged facts or expert opinion which support these contentions and on which GANE intends to rely in preving these contentions at the hearing. Therefore, these contentions also clearly fall to comply with NRC's pleading requirementa.

For the foregoing reasons, the Board should dismiss GANE contentions 2(e) and (f).

GANE Contention 2(a)

GANE contends the proposed HJWT trip bypass is unsafe because it does not provide " automatic indication and prevention of emergency generator overheating."

This contention can be interpreted in two different ways.

Under either interpretation, the contention is redundant with !

those previously proffered. First, GANE may be contending that no automatic activation for a trip is provided under the i

! 31 l

0

)

1

. l

. bypass configuration and, therefore, the bypass "is unsafe" due to the potential of diesel generator overheating. That l

is, GANE is addressing its view of the safety associated with i the NJWT trip logic as it did in Contention 2(b) (i. e.,

" indication," as used by GANE, is intended to connote

" actuation"). If such is GANE's intention, this contention should be rejected for the reasons provided supra respecting 1

GANE Contention 2(b). Second, GANE may be stating _that no 1 automatic indication of overheating is provided'to the '

operators such that operator action may be taken to prevent overheating. This reading is consistent with the apparent  !

thrust of GANE Contentions 2(e) and (f) which refer obliquely  !

to " warning" of overheating to the operators. In that case, l this contention should be rejected for the same reasons -

provided supra respecting GANE Contentions 2(e) and (f). j i

For the foregoing reasons, the Board should dismiss GANE 2 contention 2(g).

GANE Contentiga,2  ;

GANE contends that bypassing the HJWT trip can lead to diesel generator overheating which can cause a station blackout and which in turn can lead to a meltdown.

GANE fails to allege with particularity a legal basis of t

either (1) a specific regulation with which the Applicants l

32 1

l

'l l

tail to comply,.or (2) the existence and detail of a substantial safety issue'on which the regulations are silent.

As discussed earlier, bypassing the HJWT trip is permitted i l

under NRC rejulations and NRC regulations also adequately j address the possibility of a station blackout, which I contemplates the failure of more than a single diesel j a

generator (Att 10 C.F.R. $ 50.63). GANE is challenging an )

NRC rule without the showing required b) Section 2.758. In any event, the' issue is outside the scope of this proceeding. l GANE has also failed to comply with the requirement to i

provide a concise statement of facts or expert opinion which support this contention and on which it intends to rely in i proving the contention at the hearing. GANE has again ,

provided n2 factual basis. Therefore, this contention clearly fails to comply with both a 3C's prior Rules of Practice and 9RC'S new, more stringent, pleading requirements.

For the foregoing reasons, the Board should dismiss GANE Contention 3.

GANE Contention 4 GANE asserts that the Application is inadequate and states as a basis for that assertion that the Application (1) does not explain whr., determined that the HJWT trip should be 33

_ __ _. . _ . . _ _ . . _ _ . . _ - _ . . -.__----_f

.- l l

l i -

1 l

bypassed, and (2) it does not explain the empirical data used j as a basis for such determination.  ;

GANE has failed to allege with particularity either (1) a specific regulation with which the Applicants fail to comply, or (2) the existence and detail of a substantial safety issue ,

on which the regulations are silent. The Application-does indicate who determined that the HJWT trip should be i bypassed; Georgia Power Company made that determination.

Furthermore, NRC regulations do not require an applicant for an amendment to an operating licenst to state either (1) which individuals made the determination provided in the application, or (2) what empirical data was used as.the basis for such determination. Such issues are immaterial, and the  !

answers irrelevant to establishing an effect on the individual gaining the answers.

The stated bases for this contention (which, in actuality, ,

are questions for discovery) clearly fail to constitute i

" support" for the contention that the Application is inadequate. Additionally, GANE has failed to provide ,

sufficient information to demonstrate that genuine disputa exists on a material issue of law or fact.

For the foregoing reasons, the Board should dismiss GANE Contention 4.

34 l

.. j 1

l GANE contention 5 GANE asserts that automatic redundancy should be provided i

for the HJWT trip to prevent overheating. This assertion is  ;

i outside the scope of this proceeding since it raises a I question above and beyond the issue of whether the HJWP trip may.be safely bypassed. The need for redundancy of the switch or of the diesel generator as a whole is not within  !

the scope of this proceeding.

In addition, GANE fails to allege with particularity i either (1) a specific regulation with which the Applicants i fail to comply, or (2) the existence and detail of a .I i

substantial safety issue on which the regulations are silent. i i

Furthermore, GANE has failed to provide any statement of alleged facts or expert opinion which support this contention and on which GANE intends to rely in proving this contention s at the hearing. Therefore, this contention should be rejected as it clearly fails to comply with the NRC's stringent pleading requirements.

Finally, this contention fails to provide sufficient information to show a genuine dispute exists.on a material issue of law or fact. In this regard, the Applicants l

i question whether GANE is aware of the redundancy designed l into the on-site and off-site alternating current power  !

supplies, i

35

I i

For the foregoing reasons, the Board should dismiss GANE Contention 5.

CANE Contention 6 GANE contends that the Application is inadequate, stating only that a " full analysis" of the diesel generator must be undertaken before bypassing the HJWT trip may be permitted.

GANE fails to all.ege with particularity either (1) a specific regulation with which the Applicants fail to ecmply, or (2) the existence and detail of a substantial safety issue-on which the regulations are silent.

Furthermore, this contentian clearly fails to comply with the NRC's pleadings requirements adopted last year. This contention falls to provide any factual basis for why the Application is " inadequate," in GANE's view. This contention, then, is nothing more than an etherial statement of opinion without a basis -- akin to broad contentions, rejected by other Boards, that entire emergency plans or quality assurance programs were inadequate. Egg, 3222, Long l-Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1)

.LBP-82-75, 16 NRC 986, 993 (1982); commonwealth Edison Co.

(Braidwood Nuclear Power Station, Units 1 and 2) LBP-85-11, 21 NRC 609, 634 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986) (citing Philadelnhia Electric Co.

36

(Limerick Generating Station, Units 1 and 2), L8P-83-39, 18 NRC 67, 89 (1983)). GANE fails to supply this Board with sufficient particularity of pleading to indicate the manner in which the Applicants' analysis is inadequate. There is no specific reference, as required, to that aspect of Applicants' analysis which GANE believes is inadequate.

similarly, there is no elucidation, as required, of the manner in which a " fuller" analysis would lead to a different conclusion or cure the inadequacy. GANE Contention 6, therefore, should be rejected, for it gives the Board no clue of the alleged inadequate aspects of the Applicants' analysis with which GANE finds fault. Finally, there is no basis in fact or expert opinion to support the different conclusion..

Insofar as GANE intends this contention to be read as a challenge to the adequacy of the NRC staff analysis, that, too, is prohibited by the Commission's Rules of Practicet Apart from NEPA issues, which are specifically dealt with in the rule, a contention will not be admitted if the allegation is that the NRC Staff has not performed an adequate analysis. With the exception of NEPA issues, the sole focus of the hearing is whether the application satisfies NRC regulatory requirements, rather than the adequacy of the NRC staff performance.

54 Fed. Reg. 33171, column 2 (August 11, 1989) (citing Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power

. Plant, Unius 1 and 2), ALAB-728, 17 NRC 777, 807, review declined, CLI-83-32, 18 NRC 1309 (1983)).

37

O, l

l 1

For the foregoing reasons, the B~oard should dismiss GANE Contention 6.

4 l

CANE Contention 7 l l

In essence, this contention asserts that diesel generator j j

reliability must be demonstrated by either operational j testing, a more complete evaluation or other evidence. The i reference to a "more complete evaluation" seems redundant to

')

'GANE Contention 6 and should be rejected for the same reasons ,

t provided suora respecting GANE Contention 6.

]

" Reliability" is an issue which is separate and distinct from the question of whether the HJWT trip may be safely 5 bypassed. GANE should not be permitted to raise the issue of reliability in this proceeding as a separate issue.above and r beyond the question of whether the HJWT trip may be safely '

bypassed. To the extent that GANE seeks to do so here, this j contention should be rejected. .

In addition, GANE fails to allege with particularity i either (1) a specific regulation with which the Applicants fail to comply, or (2) the existence and detail of a substantial safety issue on which the regulations are silent.

Furthermore, GANE has failed to provide any statement of the alleged facts or expert opinion which support the contention and on which GANE intends to rely in proving the 38

. _w-,. - . . - .... . .. .,, _ . .. m.s,em a. , , . , , . ,, ,.

i contention at the hearing. The parties have no notice of l basis: why is operational testing, a more complete l t

evaluation or other evidence necessary relative to the change ,

here in issue? The Applicants' and NRC staff's analyses are j set forth in detail in the May 25 and July 10, 1990 safety k evaluations, respectively. Not only has GANE failed to f address or acknowledge the analysis which was performed,-but l has also failed to allege any shortcoming with particularity.

This contention clearly fails to comply with the Commission's stringent pleading requirements.

For the foregoing reasons, the Board should dismiss GANE #

l Contention 7.

i GANE Contention 8 GANE asserts that (1) the possibility of fa!1ure of the diesel generator following bypassing of the HJWT trip must be explored since that could lead to VEGp being completely without power to its safety systems and (2) the Applicants -f 9

will not be in compliance with their license conditions unti'.

the " question of why" the diesel generators are unreliable is resolved. '

For the reasons stated above in connection with GANE Contention 7, GANE should not be permitted to raise the issue  ;

of diasel generator reliability to the extent that such issue 39

h i

o.  ;

I l

goes beyond the single issue before the Board of whether.the l HJWT trip may be safely bypassed. I With respect to GANE's first assertion under this I

contention, GANE fails to allege with particularity either '

(1)_a specific regulation-with which the Applicants fail to j l

comply, or (2) the exibtence and detail of a substantial d safety issue on which the regulations are silent. The Application does address the possibility of failure of the j diesel generator. An essential point which GANE apparently l l

fails to comprehend or understand, even though it is  ;

discussed in the Application and the NRC's July 10, 1990 '

safety evaluation, is that the potential for diesel generator ,

i overheating and the ultimate failure of a diesel generator is '

contemplated by NRC regulations, with which Applicants .}

comply, requiring a redundant diesel generator. Esa -l discussion in Sections II.C and II.D, gypra. Furthermore, as a matter of logic, the probability of the occurrence of an  ;

accident is reduced when the HJWT trip is bypassed during ,

emergency starts -- in the event it is called upon in an emergency, the diesel generator in question will be available a greater percentage of the time because' spurious trips are eliminated. Under the design basis of the plant, the first diesel is not relied upon for electric power once it is i

tripped, even if spuriously. Consequently, as indicated -

40 t

. - . . _ . . ~ - . _ , . _. ._--,,_.-._.s_ , _ _ _ . _ _ . _ - . , . _ _ . . _ _ _ _ . __ ___

4 previously, GANE appears to be advocating stricter requirements than those imposed by the Commission and, as such,.this contention constitutes an impermissible attack on NRC regulations. In addition, based on the above, GANE has failed to provide sufficient information to show that a genuine dispute exists on a material issue of law or fact.

GANE's second assertion under this contention suggests that the Applicants are somehow in violation of their license. However, GANE has not alleged with particularity the specific regulations with which the Applicants fail to comply.

Finally, this contention fails to set forth an issue capable of adjudication in this proceeding. First, the contention apparently requests the Board to " explore" the "real possibility" that the diesel generator may fail if the HJWT trip is bypassed. The request to " explore" suggests that GANE at the present time.has no factual basis for GANE contention 3, related to decreased reliability of the diesel generators due to overheating. Second, GANE asserts that Applicants will not be in compliance with their license until the question of "why" the diesel generators are unreliable is

., resolved. It is axiomatic that at th's present stage of this proceeding the petitioner has the obligation to provide i

information sufficient to demonstrate that the issues raised 41 l

f i

t

l

z, i

are admissible and further inquiry is warranted.- That obligation cannot be fulfilled simply by requesting that discovery (" exploration") go forward; admission of a contention is a precondition to the exploration. GANE should not be permitted to file vague, unparticularized contentions to be fleshed out through discovery. Egg Catawba, supra, 16 NRC at 468.

For the foregoing reasons, the Board should dismiss GANE Contention 8.

IV. THE TECHNICAL SPECIFICATION AMENDMENT l

The Applicants provide in this Section the information requested by the Board in its August 16, 1990 Order.

Technical Specification 4.8.1.1.2h(6) (c) requires

"(v)erifying that all automatic diesel generator trips, except engine overspeed, low lube oil pressure, high jacket water temperatures and generator differential, are A.utomatically bypassed upon loss of voltage on the emergency-bus concurrent with a safety Injection Actuation signal" (emphasis supplied). Simply deleting the phrase "high jacket u

water temperatures" would indicate that the HJWT trip was required to be automatically bypassed in conducting this surveillance. This is not the case; the HJWT trip is presently manually bypassed by isolating the pneumatic water l 42 i

)

f temperature switches from the control logic by manually operated valves. Thus, the footnote added to the technical specifications permits the manual bypassing of the HJWT trip logic when the diesel generator is in standby for emergency operations. The word "may" was used because, at the time of License Amendment proposal, VEGP was in.the process of installing the capability to manually bypass on the four diesel generators (two per unit). Use of the word "may" facilitated this transition phase.

The Technical Specification change, as written, would permit bypass in other than emergency conditions. However, plant procedures provide for the HJWT trip to be in service during testing and maintenance of the diesel generators.

V. CONCLUSION For the reasons stated above, the Applicants request that the July 23, 1990 GANE Petition for Leave to Intervene, as amended on September 4, 1990, concerning License Amendment No. 31-to Facility Operating License NPF-64 and License 43

.y Amendment No. 11 to Facility Operating License'NPF-81 be denied.

Respectfully submitted, r AYthur H. Domby ~ F A- "

n Lambertski" ~

~

TROUTMAN, SANDERS, LOCKERMAN

& ASHMORE 127 Peachtree Street, N.E.

Atlanta, Georgia 30303-1810 (404) 658-8000 counsel for Georgia Power Company Ernest L. Blake, Esquire of' Counsel SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20036 (202) 663-8084 September 14, 1990 44 1

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• \

i.ULhlilD

'JWkC UNITED STATES OF AMERICA wocr.maa masoLAToar cossusslos .90 SEP 17 A10:03 ATOpuC BAFETY AMD LICENSING BOARD iig 6 ILt 3 SLCall APY 90CKtliNG A Si t>VICI BRANCH In the Matter of GEORGIA POWER COMPANY, t et al.

~-

DOCKET Nos. 50-424-OLA

50-425-OLA ASLBP No. 90-617-03-OLA (Vogtle Electric  :

Generating Plant, a Units 1 and 2)  :

NOTICE OF APPEARANCE The undersigned, being an attorney at law in good standing admitted to practice before the Courts of the District of Colum-bia, hereby enters his appearance as counsel on behalf of the Georgia Power Company in proceedings related to the above-cap-tiened matter.

L/ 44646' Ernest L. Blake , Jr s , P.C.

SHAW, PITTMAN, POTTS

& TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8084 Dated: September 13, 1990

,o 1

-)  ;

> j i

LQLPIliu ,

USNhC i UNITED STATES OF AMERICA  % SEP 17 A10:03  !

WUCLEAR REGULATORY CONNISSION g a fCL Of siCRETA6Y DOCK [llNG A Sl PVlff )'

ATONIC SAFRTY AND LICENSING BOARD PRANCH

)

In the Matter of l I

GEORGIA F0WER COMPANY, t  ;

at A1

• Docket Nos.-50-434-OLA '

50-425-OLA ,

t

AsLBP No. 90-617-03-OLA' i (Vogtle Electric  : I seaerating Plant, t  !

Units 1 and 2) l I

CERTIFICATE OF. SERVICE ,

This is to certify that copies of the within and l foregoing " Applicant's Response to GME'r si oded Petition j

for Leave to Intervene" and " Notice of h; !srance" of Ernie i l

i L. Blako, Jr. were served, pre-paid to ensure proper delivery, via the United States Mail, First Class, or via Federal Express, overnight delivery, to all those listed on the attached service list. .

t This the 14th day of September, 1990.

u h~n LambTerdRi TROUTMAN, SANDERS, LOCKERMAN

& ASHMORE 1400 Candler Building 127 Peachtree Street, N.E.

Atlanta, Georgia 30303-1810 (404) 658-8000 i

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t w

e UNITED STATES OF AMERICA NUCLt.4 RBOULATORY COMNISSION ATOKIC SAFBTY AND LICENSING BOARD In the Matter of GBORGIA POWBR COMPANY, 8 Al &l. Docket Mos. 50-424-OLA t 50-425-OLA t

• ASLBP No. 90-617-03-OLA (Vogtle Electric  :

Generating Plant, t Units 1 and 2)

SERVICE LIST Administrative Judge - Secretary of the Commission charles Bechhoefer, Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing commission Board Panel Washington, D.C. 20555 U.S. Nuclear. Regulatory ATTN Docketing and Services Commission Branch Washington, D.C. 20555 Charles Barth, Esquire Administrative Judge Office of General Counsel James H. Carpenter White Flint North Atomic-Safety and Licensing Stop 15B18 Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Director, Administrative Judge Environmental Protection Emmeth A. Luebke Division 5500 Friendship Boulevard Department of Natural Apt. 1923N Resources Chevy Chase, MD 20815 205 Butler Street, S.E.

Suite 1252 Ms. Glenn Carroll Atlanta, Georgia 30334 Georgians Against Nuclear Energy Post Office Box 8574 Atlanta, Georgia 30306 I

l