ML20062H631
| ML20062H631 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/19/1990 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#490-11107 ALAB-940, OL-1, NUDOCS 9012050189 | |
| Download: ML20062H631 (11) | |
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UNITED STATES OF AMERICd-S)bYc NUCLEAR REGULATORY COMMISSION; TO IN 19 P3 f23 BEFORE THE COMMISSION-In the Matter of
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' Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF-
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Iow Power Testing-(Seabrook Siation,.
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Units 1 and 2)
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NRC-STAFF RESPONSE TO'INTERVENORS' -
PETITION.FOR' REVIEW OF ~ALAB 940 -
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Mitzi A. -Young -
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Senior Supervisory -
Trial Att'orney
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November 19, 1990 q
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UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMISSION
- BEFORE THE COMMISSION i
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Docket Nos.
1 PUBLIC SERVICE COMPANY OF -
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50-444 OL 1
- NEW. HAMPSHIRE, ci al.1
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IAw' Power-Testing (Seabrook Station,-
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Units 1 and 2)_
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NRC STAFF RESPONSE TO INTERVENORS'I PETITION =FOR REVIEW OF ALAB 940 On' October 18,1990,. the Appeal Board issued!ALAB 940, 31 NRC
,;which 3
m affirmed the Licensing Board's denial of motions to admit into the full power proceeding.
l late-filed contentions concerning low power testing or, alternatively, to' reopen the record.
By petition dated November 7,1990,.the Massachusetts-Attorney; General, the 1New:
h England _ Coalition on - Nuclear -Pollution, and the ? Seacoast
- Anti Pollution J League.
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("Intervenors") asked that the: Commission review: ALAB-940, alle' ging' that;the Appea' l4
. Board erred in holding that Intuvenors' motion failed tu meet'the' criteria for reopening the record set forth in 10 C.F.R.L 5 2.734.' iSpecifically,IIntervenors' argue ;th' t: the a
s Appeal-Board was wrong to1 conclude that the motions failsd'to raise a'significant-safetyJ issue. lPetitionEat :3, citing ALAB 940, slipj: op. ; at 31.
1Pursuanti to110 - C.F.R.-
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f'2.786(b)(3), the NRC Staff submits the following response in opposition _to the Petition.
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- ntervenors' l Petition L for ) Review:Tof( ALAB 940h ' athd Novemberc7, i1990:
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!(" Petition")h, While thejintervenors listed aboveiwereithelproponentsiof the rn6tions:
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, W. below, only(the Massachusetts-Attorney General signed the.Pe, tition.-
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2-DISCUSSIO'N Pursuant-to 10 C.F.R. 5 2.786(b),.a party may file a petition for review 'on~ the grounds that the decisio'n or action is erroneous with respect to a important question of' fact, law or policy. The petition must contain (1) a concise summary of the decision or-i action of which review >is sought, (2) a statement'(including record citation) where the 1
matters of fact or law raised in the_ petition for review.were previously raised before the Appeal Board, and if they were not, explain why the matters could not have been raised,
-(3) a concise statement as-to why inlthe? petitioner's-view the-decision or action _is-erroneous,' and (4)'a concise statement'of why Commission review should be exercised.
j 10 C.F.R. 6 2.786(b)(2)L Furthermore, a' petition of matters of fact will not be granted i
unless it appears that the Appeal: Board resolved a factual issue necessary for decision in a clearly erroneous' manner contrary to-the' resolution _'of the same issue by the-Licensing Board. 10 C.F.R. f 2.786(b)(4)(ii). The purpose:of section 2.786(b)(4)(ii) is ~
j "to ensure that the. Commission does not _ needlessly ~ insert a third lay of adjud'icatory 0
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review of a given set-of factual issues."2' As=describsd below, Intervenors assertion that -
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, the Appeal Board's affirmance of the factual ruling made. by. the Licensing Boarr'. fails.
I to satisfy:the standards for granting.a petition Lfor review. -
i The. Petition's -sole basis is that, the? Appeal Board in = ALAB 940 erroneously-concluded that the facts alleged in support of the rnotion below did not establish"that
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1 a' significant safety issue existed with respect to the operation of the facility. Intervenors-1 argue that affidavits proffered below show thatlthe operator errors thht occurred during -
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State of illinois.(Section"274" Agreement), CLI 88-6, 28.NRC175, 79 ;n.2 (1988),
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_ citing '42 Fed. Reg. 22128 -(May 2,' 1977).
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3-low power testing were part of a pattern of procedural noncompliance at Seabrook Station which reflects a pervasive failure to operate the plant safety. Petition at 4 5.
Since. Intervenors ground their Petition on a factual issue that the Appeal Board resolved 'i a matter which is not contrary to the Licensing BJard's resolution of the matter, the Petition should be summarily denied. 10 C.F.R.'
2.786(b)(4)(ii).
Nevertheless,-the Staff addresses whether the matters raised'show.the Appeal Board's ruling was clearly erroneous. Intervenors take particular exception to the Appeal Board's statement that the motion ~did not meet the requirement for reopening because:
In the final analysis, the intervenors and their experts have attempted to turn a single incident of personnel error into'a wholesale and wide spread breakdown of the applicants' quality assurance programs. Without.a great
- deal more, the intervenors have failed,- as a matter; of law, to. raise a;
-legitimate doubt-that 'the plant'can be operated safely.
Slip op, at 32. Intervenors assert that the conclusion is erroneous since (1) the Appeal
-Board ignored Intervenors'Leontention th'at the testing. incident,;when considered with other incidents, showed a pattern of noncompliance and:(2) the. Appeal Board improperly determined "the merits of the proffered; contentions" in ruling on theLappeal. Petition i
at.45.
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3Intervenors'also find fault with the' Appeal Board's failure to identify;"what further.
factual' allegations'would be necessaryito show a significant ' safety issue" Petition at '5.
While this complaint criticizes the Appeal' Board for-its failure to counsel Intervenors as ato how..to frame a successful motion, it'does not establish that the Appest Board erred
- when1it concluded;that Intervenor',had failedoto sustainEtheir burden to makeLthe s
i requisite showing to warrant reopening the record.- See Louisiana Power and !L'ight. Co.
(Waterford Steant Electric Station, Unit 3), CL186-1,23 NRC 1,6 (1986) ("It is not'the
' duty of theLadjudicatory boards to search for~ evidence:.that might fill m< gaps m the
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moving party's submissions").'.
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Intervenors, however, again ignore their failure to meet the heavy burden placed i
on movants in order to succeed in reopening a record and fail to reveal any impropriety in the Appeal Board's conclusions. The Appeal Board was cognizant of their allegation
" based on an unrelated staff inspection report listing four minor instances of possible lack
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of attention to detail by the applicants, that the' circulation test: incident:may not bel.an isolated event" and that the Intervenors' experts believed the test incident " represents a pervasive pattern of procedural noncompliance and-thereby: raises:a'significant safety issue." Slip. op, at 29 30_(footnote omitted). The Appeal Board correctly concluded that 1
the Intervenors' ' contentions basically LallegedL violations 1ofithe ' Commission's quality ar :nce regulations by asserting a pattern of (a) procedural noncompliances in training and sJministrative controls, (b) deficiencies in testing and maintenance of valves, and-g 1
(c) deficiencies in test training. Slip op., at 31 ; Given;that' the Intervenors had not-attempted to demonstrate that safe operation of:the plant was'" threatened by the natural circulation test incident or that 'theastaffs :(ConfirmatoryJ Action = Letter] Land the j
applicant's response to'it left any uncorrected! deficiencies," the Appeal Board foundithat 1
Intervenors had failed to raise o"an authentic doubt that:the plant can.-beloperatedly safely." Slip op at 31-32;2 Pacific Gus & Electric 'Co.:(Diablo Canyon Nuclear Power Plant,1 Units 1-and 2), ALAB 756,' 18.NRC 1340,'.1345 -(1983).. In light' of Intervenors' failure:to make the requisite evidentiary shoiving;to establish.the safety' significance of t l
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-i dKansas Gas & Electric Co.'(Wolf Creek;Genetating Station,1 Unit 1), ALABJ462,
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c7 NRC ~ 320,f338'f(1978). Information? supportingSreopening 'mustEbeLmore than Lallegations, but instead tantamount to evidence which woiild'materiallp affect the outcome Lin the' proceeding.
Pacific' Gas '& Electric Co. (DiabloLCanyon Nuclear: PowerJ Plant, Units 11and 2), ALAB-775,19 NRC 1361,1366 (1984),Laff'd sub nom.jSan:Luis;Obispo Mothers for Peace v.sNRC,1751' F.2d11287. (D.C. 'Cir.,1984)Daffd 1on reh' icn banc, g
789'F.2d 26-(D.C. Cir;), cert deniedf479 U.S. 923 (1986)'
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c their contentions, the Appeal Boara's affirmance of the Licensing Board. actions below was not in error. Moreover, the Appeal Board's consideration of the contentions did not involve an improper review of their merits in view of the necessity'for determining whether the motions to reopen and to admit late filed. contentions raised a significant -
safety issue which would or would likely lead to. a materially different' result had the newly proffered evidence been considered initially.10 C.F.R. 2.734(a)(2), (3)! see e.g...
Long Island Lighting Co. '(Shoreham Nuclear Power Station, Unit 1), CLI 87 5, 25. NRC.
884(1987). The evidentiary showing needed to prevail on reopeninh has been likened to that which is " strong enough, in the light of any opposing' filings, to avoid summary disposition." Vennont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-520,6 AEC 520,523 24 (1973). Thus, this assertion of error should 'also be rejected.
CONCLUSION -
As discussed above, the Petition shorld be. denied, pursuant to 10' C.F.R.
s 2.786(b)(4)(ii), since it is based'on a factual; matter that was not resolved in a " clearly e
erroneous manner"'or " contrary to the resolution of the same issue.by the Licensing Board." Furthermore, Intervenors. fail to showithat the Appeal Board's~ action was 4
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erroneous with respect to an important question of fact, law or polley" as required by 10 C.F.R. I 2.786(b)(1).
Respectfully submitted, I ~
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Sem Supervisory Trial At* nney Dated at Rockville, Maryland this 19th day of November,1990 1
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f UNITED STATES OF AhiERICA
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NUCLEAR REGULATORY COMMISSION l
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BEFORE THE COMMISSION
'90 NOV 19 P3 08
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In the Matter of
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Docket Nos. 50-443 OL 1 PUBLIC SERVICE COMPANY OF
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50-444 OL 1 l
NEW HAMPSHIRE, c1 al.
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Low Power Testing (Seabrook Station,
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Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO-INTCRVENORS' PETITION FOR REVIEW OF ALAB 940
- 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 Commission's internal r1all syst.:m, and as indicated by double asterisks, by express mail,'this 19th day.of Nove.nber 1990:
Ivan W. Smith, Chairman (2)*
Thomas G. Dignan, Jr., Esq."
Administrative Judge Robert K. Gad,111, Esq.
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Atomic Safety and Licensing Ropes & Gray Board One International Place U.S. Nuclear Regulatory Boston, MA 02110 2624 Commission Washington, DC 20555 Peter Brann, Esq.
Assistant -Attorney. General Richard F. Cole
- Office of the Attorney General Administrative Judg; State House Station 6 Atomic Safety and Licen.wng Augusta, ME 04333 i
Board U.S. Nucleer Regulatory Diane Curran, Esq."-
Commission Harmon, Curran & Tousley' Washington, DC 2055b 2001-S Street, NW Suite 430 Washington, DC 20009 Kenneth A. McCollom" Administrative Judge Stephen A. Jonas"-
1107 West Knapp Street -
Leslie Greer 1
Stillwater, OK 74705 Matthew Brock- -
l Massachusetts Attorney' General i
One Ashburton Place,19th Floor
- Boston, MA 02108 -
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2-1 John P. Arnold, Attorney General" Allen lampert George Dana Bisbec Civil Defense Director Associate Attorney General Town of Brentwood Attorney General's' Office 20 Franklin Street 25 Capitol Street Exeter, NH 03833 -
t Concord, NH 03301 William Armstrong Robert A. Backus, Esq.
Civil Defense Director Backus, Meyer & Solomon Town of Exeter 116 Lowell Street
.10 Front Street Manchester, Nil 03106 Exeter, NH 03833 4
H.J. Flynn, Esq.
Gary W. Holmes, Esq.
Assistant General Counsel Holmes & Ellis l
Federal Emergency Management 47 Winnacunnet Road Agency Hampton, NH : 03842 500 C Street, SW Washington, DC 20472 Barbara J. Saint Andr6, Esq.-
Kopelman and Paige, P.C.
Jack Dolan Counsel for Amesbury, bury Federal Emergency Management Newburyport & Sahs Agency 101 Arch Street Region I Boston, MA. 02110 J.W. McCormack Post Office &
Courthouse Building, Room 442 Judith H. Mizner, Esq.
Boston, MA 02109
. Counsel for West Newbary
.79 State Street Paul McEachern, Esq..
Newburyport, MA 01950 Shaines & McEachern.
25 Maplewood Avenue-
' Robert Carrigg, Chairman P.O. Box 360 Board of Selectmen i
Portsmouth, NH ~ 03801 Town Office-Atlantic Avenue George Hahn, Esq.
North Hampton, NHL 03862
- Attorney for the Examiner Hahn'& Hesson Mrs. Anne E. Goodman, Chairman t
1350 5th Ave., Suite 3700 Board of Selectmen New York,-NY 10118 1315 Newrnarket Road-Durham, NH 103824 R. Scott Hill Whilton, Esq.-
lagoulis, Hill Whilton
& Rotondl 3
79 State Street-
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Newburyport, MA- 01950
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3-l Hon. Gordon J. Humphrey Jane Doherty, Director United States Senate Seacoast Anti Pollution League 531 Ilart Senate Office Bldg.
5 Market Street
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Washington, DC 20510 Portsmouth, NH 03801 Richard R. Donovan Michael C. Sinclair Federal Emergency Management Graystone Emergency Management Agency Associates Federal Regional Center 13 Summer Street 130 228th Street, SW Hillsboro, NH 03244 Bothell, WA 98021 9796 Robert R. Pierce, Esq.*
Peter J. Matthews, Mayor Atomic Safety and Licensing City Hall Board Panel Newburyport, MA 01950 U.S. Nuclear Regulatory Commission Michael Santosuosso, Cl,aftman Washington, DC 20555 Board of Selectmen South Hampton, NH 03827 Atomic Safety and Licensing Appeal Panel (6)*
Ashod N. Amirian, Esq.
U.S. Nuclear Regulatory i
Town Counsel for Merrimac Commission 145 South Main Street Washington, DC 20555 P.O. Box 38 Bradford, MA 01835 Atomic Safety and Licensing Board Panel (1)*
Suzanne Breiseth U.S. Nuclear Regulatory Board of Selectmen Commission 1
Town of Hampton Falls Washington, DC 20555 l
Drinkwater Road Hampton Falls, NH.03844 Office of the Secretary (16)*
U.S. Nuclear Regulatory George Iverson, Director Commission Ni' Office of Emergency
. ashington, DC' 20555
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W Management-Attm Docketing and Service State House Office Park South Section 1
107 Pleasant Street j:
Concord, NH 03301
' Y, N Giitif A.Yount,
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Senior Supervisnry Trial Attorney e
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