ML20063J452
| ML20063J452 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 08/31/1982 |
| From: | Patricia Anderson WISCONSIN'S ENVIRONMENTAL DECADE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8209020409 | |
| Download: ML20063J452 (24) | |
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UNITED STATES OF AMERICA DOCKETED
' USNRC NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board g gq gy 0 4%V OfflCE OF SECRETAR' Wisconsin Electric Power Company [R C POINT BEACH NUCLEAR PLANT UNITS 1 & 2 DOCKET NOS. 50-266 AND 50-301 Operating License Amendment 1 (Steam Generator Tube Sleeving Program)
DECADE'S REPLY BRIEF IN SQPPORT OF ITS MOTION CONCERNING LITIGABLE ISSUES Wisconsin's Environmental Decade, Inc. (" Decade ") , hereby
, suomics its Reply Brief in Support of Its Motion Concerning Litigable Issues, dated July 21,19 82(" Decade Motion"), and its Amendment to Motion Concerning Litigable Issues, dated August 20, 19 82 (" Decade Amended Mo tion") , in response to the Licensee's Response to Decade's Motion Concerning Litigable Issues, dated August 9, 19 8 2 ("Lic en s e e Response"), Licensee's. Response to Decade's Amenoment to Motion Concerning Litigable Issues, dated August 24,19 82(" Licensee Supplemental Response"), and the NRC Stait Redponse to Decade's Motion Concerning Litigable Issues, dated August 12, 19 8 2 ("Staf f Response").
8209020409 820831 DR ADOCK 05000 WED-PA-08/31/82-P3:50266NRC.P50-7 _
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INTRODUCT I ON The Licensee and Staff essentially pursue three lines of attack in tnelr unrelenting opposition to letting the public be heard in this proceeding. First, they contend that the burden on tne puolic to secure a hearing is extremely great and ultimately insurmountable. Second, the Licensee argues that all, and the Statt avers that some, of'the proposed contentions are eitner irrelevant or late-filed. Third, both opposing parties take the posicion tnat none of the proposed contentions are sufficiently supported to meet the extremely high burden necessary to justify a hearing.
None of tnese arguments are correct, as more fully answerea below.
iARGUMENT ,
I
SUMMARY
JUDGMENT MAY NOT BE GRANTED IF THERE IS THE SLIGHTEST DISPUTE AS TO THE FACTS The essent'lal issue before the tribunal at this time is
( whether or not a hearing should be held on the Licensee's l
l proposeo sleeving program for Point Beach Nuclear Plant Unit 2 during the Spring 1983 refueling.
Wicavuc ever squarely making such an assertion, bota tne Licensee and Staff seek to create the impression that the public j must make a very suostantial showing, tantamount tn proving its case, before it is entitled to receive a hearing at which such a showing may be developed. Statt Resp., at pp. 3 to 4; Licensee Resp., at pp. 37 to 39. .
Such an interpretation would do violence to all acceptec WED-PA-08/31/82-P3:50266NRC.P50-7
k i
tenets of law applied in the courts of this country.
The motions before the Board are captioned a motion l
concerning litigable issues and motions for summary disposition.
However, at their heart, each of these motions, which concern the question of whether there exists a sufficient dispute over ~
- material facts to necessitate an adjudicatory hearing, i
l essentially bring into play the more co'mmonly known concept of summary judgment.
This is precisely the holding of this Board which has articulated:
"* * * [T]he standard tnat will be applied to [the Decade's] motion concerning litigable issues will be the same stanaard as would be applied to a motion for summary disposition." Transcript p.-891.
, In turn, the Commission rules for summary disposition state that the test to be applied is whether "there is no genuine issue as to any material f act and * *
- the moving party is entitled to a decision as a matter of law", 10 C.F.R. S 2.7 4 9 (d) , which is tne same test as for summary judgement in a court of law.
Fed.R.Civ.P. 56. Eg Alabama Power Company (Farley Nuclear Plant),
7 A. E. C. 210t1974).
Therefore, it is appropriate to look to judicial interpreta"tions of Rule 56 for the controlling law governing this agency.
Although a person would come away with the opposite opinion after reading the briefs of opposing counsel, the law holds that, in a summary judgment procedure, it is the moving party--not the party opposing the motion--who bears a heavy burden of proof.
Adickes L M Kress i fm,(1970), 398 U. S. 144, 157. The
L movant must make a clear showing that virtually no genuine issue of material fact exists. Suchomajcz y Hummel Chemical SL., 3rd Cir.197 5) , 5 2 4 F.2d 19, 24.
All inferences, doubts or issues of credibility must be resolved in favor of the party opposing summary judgement.
United States L. Diebold(1962), 36 9 U.S. 654, 655; Bohn Aluminum i Brass Corp. y2 Storm King Coro. (6 th Cir.1962), 303 F.2d 425.
United States n rel. J.nngs y_, Rundle(3 rd Cir.1971), 453 F.2d 147, 150. Catalano L. Tarcet Sales (9thCir. 1979), 605 F.2d 1097, 1101. M u t u a l F u n d I n v e s t o r s y_ 2MtE An M a n a g e m.ent Em.( 9 t h C i r .
1977), 553 F.2d 620, 624. Summary judgment is to be denied by tne trier of fact when a contrary inference might be drawn from the evidence. United States L. Diebold, suora, at 655.
Most important to this particular case, once a court finds
! that material facts are in dispute, it must leave the resolution of tnat dispute to another day and deny summary judgment. United l States n rel. Jones, suora, at 150. Summary judgment is inappropriate where there is the slightest doubt as to the facts.
.TamA1AEski y_m. State Ents Insurance famoanv(3rd Cir.1974), 494 F.2 d 882, 884. Any dispute regarding a material fact is sufficient to require the case to be tried rather than disposed or by motion. Ortiz y_ Ciba-Geigv Co rp. (N.D. Ill. 1980), 87 l
l F.R.D.7 23, 724. Indeed, even if the basic facts are not in i
dispute, summary judgment is not appropriate if contrary inf erences may be drawn f rom them. United States y_ Diebold, suora, at 655.
1 Furtnermore, when, as here, there is a case of a complex nature involving public issues of far-flung import, summary WED-PA-08/31/82-P3:50266NRC.P50-7
s judgment is particularly inappropriate. Kennedy L Silar Mason h (ly4i), 334 U.S. 24 9, 256.
In America, the puolic's opportunity to be heard is a right with both statutory and constitutional roots. 4 2 U.S.C. SS554 anc S2233; Fifth and Fourteenth Amendment of the United States Constitution. It is not a privilege to be conferred as an agency sees fit.
The election of a president with a mandate to reduce taxes may not be transmorgified into a mandate to ignore safety, and a quadrennial political event does not serve to void two centuries of legal tradition.
II i THE CONTENTIONS ARE TIMELY The Licensee objects to the following contentions as untimely: Contention 3(a) relating to inspectability, Licensee Resp., at p. 14; Contention 3(b) relating to the annulus, Licensee Resp., at p. 16; Contention 3(d) relating to under-expanaed sleeves, Licensee Resp., at p. 16; Contention 3(e) relating to over-expanded sleeves, Licensee Resp., at p. 17; Contention 3(f) relating to sleeving corroded tunes, at Licensee Supp. Resp.,. at p. 4 n. 1; Contention 5 relating to loose parts, Licensee Resp., at p. 17; and the Alternative Contention. The Staff only joins in the timeliness objection to Contentions 3 td) and 3 (e), Stat t Resp., at p.11.
With respect to the Licensee's objection to Contentions 3 (a) ana (b), it would appear that the Statt does not agree with the argument that the proposed issues are untimely. There is WED-PA-08/31/82-P3:50266NRC.P50-7
s good reason for this.
The Decade's pre 11minary list of contentions specifically referenced the inspectability and annulus issueh. Letter from P.
Anae r son (W ED) to R. G. Bachmann(NRC), dated January 18, 1982(" Preliminary Contentions"), at p. 2, 114 and 5. Apparently, tne Licensee finas it objectionable that, af ter several months of discovery and additional time to review the application, the intervenor has industriously retined its original statement of the issue by filling in more details. This is hardly the basis or a valid objection. It is unclear what purpose counsel believes that discovery fulfills if not to make such refinement possible. If counsel truly believes that no furtner refinements ought to be made on the basis of information gleaned from discovery ana tnat discovery serves no purpose, then his proper conduct would have been, in the first instance, to object to discovery being allowed at all.
With respect to Contentions 3(d) and (e), the original focus l of the Decade's preliminay contentions was on the effect of l
l brazing tne sleeve to the tube as proposed in the application because of the very serious questions of structural integrity ano dissolution raised by the process. Prelim. Contention 3. The validity of this concern is attested to by the Staff evaluation wnich concluded that additional justification was required before the process could be approved. Safety Evaluation Relating to Full Scale Steam Generator Tube Sleeving at Point Beach Units 1 ano 2, i
undated, at p. 26.
However, at the eleventh hour, the Licensee chose to WED-PA-08/31/82-P3:50266NRC.P50-7
. - - _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ~
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substantially alter its application to exclude brazing and rely entirely upon an expansion process for sleeving. Letter from D.
Ridgway(WE) to P. Bloch(NRC) , dated July 9, 19 82, at p. 2.
Since it is the Licensee who has made a last minute alteration in the application, there exists ample good cause to permir tne intervenor to react to the new circumstances. 10 C.F.R. S 2.714 (a) (1) (i) . Furthermore, it should be noted that unt11 March 19,1982, the Board's statements led both the Start and Decade to believe that new :ontentions could be filed until tne time for filing the motion concerning litigable issues without any special showing. Memorandum and Order Concerning a Morton to Reconsider, dated March 19, 1982, at p. 2.
With respect to Contention 3(f), it is not disputed that the i schedule provided for amendments to contentions based upon inf ormation deriving f rom the Saf ety Evaluation Report ("SER").
However, the Licensee stridently maintains tnat the Decade should have pursued with Staff questions concerning other plants prior to issuance of the SER. Licensee Supp. Resp., at p. 4 n. 1.
The Licensee's indignation is not, it should be etaphasized, consistent with tne f acts. The f act of tne matter is that the Decade repeatedly sought, formally and informally, ongoing
.i information from the Statf concerning the status of otner plants experiencing similar problems, and it was the opposition of the Licensee, among otner things, which prevented our receiving such information. See, e.a. Licensee's Response to Decade's Request for Leave to Undertake Discovery of NRC Staft, dated April 12, 1982.
Licensee also decries the alleged f ailure of the Decade to WED-PA-08/31/82-P3:50266NRC.P50-7
alert the utility in advance to the possibility of the issue arising as part of our initial motion. Licensee Supp. Resp., at
- p. 4 n. 1. However, our original motion was filed July 21, 1982, x
ano tne answers to the interrogatories from which the contention derived was not served until August 6, 1982--more than two weeks later. NRC Starf's Answer to Decade's Interrogatories Relative to the Safety Evaluation Report on Full Scale Sleeving, dated August 6,1982, at p. 6.
Wicn respect to Contention 5, this matter dealing witn loose parts did not become the object of the Commission's attentions until atter the investigation of tne January 25, 1982 accident at the Ginna Nuclear Power Plant, Safety Evaluation Rooort Related
.t;n j;he Restart af R fdana Nuclear Power Plant, Docket 50-244,
, NUREG-0916(May 1982), at p. 5-57, and the fact of similar l
problems at Point Beach was not provided until later, Licensee's Response to Decade Second Interrogatories, dated June 21, 1982, at p. 8--all of which occurred suostantially after the Board l requested the intervenor to file preliminary contentions.
Again tne fact of new evidence constitutes good cause to supplement the earlier filing. 10 C.F.R. S 2.714 (a) (1) (1) . It also should be noted tnat, beyond the f act that this issue came 1
to the f ore af ter the time for filing preliminary contentions, 4
tne Licensee was made aware of our awakened interest in the subject with the Decade's filing of interrogatories on the suoject. Decade's Second Interrogatories and Request for Production of Documents, dated May 29, 1982, at p. 6, 113.
With respect to the Alternative Contention, as stated in our l
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filing, it is a matter of continual recurring discussion which is only plead in tne alternative and does not require a furtner response.
III THE CONTENTIONS-ARE RELEVANT The Licensee and Statf object to-the following contentions as irrelevant to sleeving: Contention 1 relating to the tube f al Aures during LOCA, Licensee Resp., at p. 23, Statt Resp., at
- p. 5; Contention 2 related to tube failures during normal operation, Licensee Resp., at p. 24, Staft Resp., at p. 6; Contention 4 related to f ailing plugs, Licensee Resp., at p. 34, Statt Resp., at p. 11; Contention 5 related to loose parts, Licensee Resp., at p. 35, Staff Resp., at p. 12; and the
, Alternative Contention, Licensee Resp., at p. 36, Staft Resp., at
- p. 13.
Wicn respect to Contentions 1 and 2, it is the Decade's view that the consequences from a tube or sleeve leak in a.small number of tunes as f ew as one to ten may be extremely severe, and in some cases, catastrophic. The manner in which the Board addresses Contention 3 dealing with the possibility of sleeve induced leakage, as an example, is directly related to the consequendes of such leakage.
That[ is to say, if the consequences of leakage were major, and if the number of tubes which must leak to be significant is small, an entirely different conclusion might be reached by the decision-maker than if the consequences were minor and the number large. More specifically, a low probability event which, it it occurs, is calamatous would warrent concern while it might not Q WED-PA-08/31/82-P3:50266NRC.P50-7
L justify further investigation if its consequences were not of such moment; ana an event which cannot be discounted in at least some tubes must be reckoned with if only a few tubec can precipitate an accident. Contentions 1 and 2 go the consequences and necessary amount of leakage to raise the most profound concern ano, theretore, are an absolutely essential part of an informed decision on whether or not to permit sleeving. The consideration of Contentions 3, 4 and 5 must be read in para materia with contentions 1 and 2.
With respect to Contention 4 dealing with falling plugs, the relevance is shown by the Licensee's own original application wnich sought permission to sleeve tunes which had previously been explosively plugged. Point Beach Steam Generator Sleeving Report for Wisconsin Electric Power Company, WCAP-9960(September 28, l
l 19 81) (" Sleeving Report"), at p. 4.1. Following the problems with tnin process noted during the first post-operation inspection of the sleeving demonstration program, the Licensee withdrew that part of its original application. Letter f rom B.W. Churchill (WE) to P. B. Bloch(NRC), dated May 25,19 82, at p. 2.
But, the fact that the Licensee subsequently deleted its request to remove explosive plugs before sleeving speaks to the problems experienced with plug removal, not to the relevance of leaking plugs to the safety of Point Beach. As shown by the Licensee's own statements, explosive plugs are such a serious potential source of leakage, Letter f rom G.A. Reed (WE) to James l S. Taylor (bl), dateo June 17, 1975, that the Licensee originally
, believed it necessary to attempt their removal notwithstanding WED-PA-08/31/82-P3:50266NRC.P50-7
L the fact that this involved significantly greater worker exposure ano cost, Sleeving Report, at p. 4.1.
With respect to Contention 5 related to loose parts, the relevance arises f rom tne f act that unexpected repair activities arising out of real-world problems with sleeving may be required on tne seconaary side of the generators--where loose parts are an established problem--even though, if everything goes perfectly, tne planned sleeving repair may be confined to the primary side of the generator.
Any steam generator repair effort in the field is inherently neither tidy nor predictible. Undertaken by transient workers wicnvut consistent academic qualifications in an extremely radioactively hostile and cramped environment on a plant
- component whose exact integrity is in doubt, it is inevitable that unexpected actions may have to be taken to complete the overhaul operation.
As just one example, during the San Onofre sleeving, the force of the sludge pile and extensive denting impeded successful I
completion of planned sleeve installation in some areas ana l
required on-the-spot modifications in the original plan that did I not go t rough hearing for approval. Memorandum from S.J.
Nowicki(NRC) re San Onof re Unit 1 Summary of February 25, 1981 Meeting to Discuss Status of the San Onofre Unit No. 1 Steam Generator Repair Program, dated March 30, 1982.
Thus, it is unreasonable and unrealistic to deny questions now at a time when the proceeding is open that may crop up later wnen tnings go wrong and the proceeding no longer exists. This proceeding is not a theoretical exercise, but rather a deathly WED-PA-08/31/82-P3:50266NRC.P50-7
6 serious attempt to prevent a recurrence of accidents such as has already happeneo at Browns Ferry and Three Mile Islano Nuclear Plants.
With respect to the Alternative Contention, the relevance is extensively dealt with in the documents previously cited and will not be repeated here.
IV FOR THE PURPOSE OF
SUMMARY
JUDGMENT, THE CONTENTIONS HAVE BEEN ADEQUATELY SUPPORTED A reading of the Licensee and Staft arguments in support of summary judgment only serves to show that they are asking the Boaro to weigh the evidence anc to act as if the entire case has already been tried. As stated repeatedly before, the issue here is not tne merits of the case but rather the extr,emely narrow question raised by a summary judgment pleading. To reiterate the rules controlling summary judgement:
-Tne burden is on the Licensee and Staf t, not the Decade, and that burden is heavy.
-Tne Licensee and Statf must make a clear showing that virtually no dispute exists and the slightest doubt precludes judgment.
-All inferences, doubts or issues of credibility must be resolved in favor of the Decade.
-The resolution of any dispute must be left to another day.
-Matters of major public import are more likely to demand a hearing.
For tnose contentions whose relevance is not challenged (i.e. Contention 3), it is clear that they involve " material WED-PA-08/31/82-P3:50266NRC.P50-7 j
L f acts" within the meaning of Rule 56 and the only issue for the Boaro is whether tnere is a " genuine" dispute. For those contentions whose relevance is challenged (i.e. Contentions 1, 2, 4, 5 and tne Alternative Contention), the same single issue remains if the Board overrules the relevancy objection. Should tne relevancy objection not be rejected for any contention, then it would not be necessary to consider the applicable section unuer this part of the brief.
In making tne determination of whether a genuine dispute exists, the Board must apply the long standing standards articulateo above.
With respect to Contention 1 related to tube failures under accident conditions, the Licensee's line of argument only a
emphasizes tne extent to which it is attempting to subvert a limited summary judgment motion to a complete decision of the entire case, but witnout the trial ever having been conducted.
The validity of the concern about steam binding has been attestea to in elaht separate, reputable scientific reports.
Decade Motion, at pp. 2 to 3. It is true that the Licensee's l
l proposea witness, M r. Fletcher, has criticized these independent ,
scientific reports and indicated that Westinghouse has reached difterent' conclusions. Statement of W. D. Fletcher, dated August 4,19 82(" Fletcher Af fidavit"), at pp. 2 to 4.
But, in A numam iudomant proceeding, it is not for the Board to weigh the conflicting scientific positions. Rather, the f act of tne disagreement only serves as a testiment to the need for a hearing to adjudicate the dispute over this material fact.
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L The Licensee and Staff also attempt to eliminate any dispute over this contention by claiming that the rate of sleeve-induced in-leaxage would be too small to be of concern to steam binding.
Licensee Resp., at p. 40; Statf Resp, at p.19.
In this regard, it is critical to note two things that undermine their claim. First, the alleged low rate of in-leakage through sleeved tubes is predicated upon a pathway between the upper joint of tne sleeve and tube where the flow space may be confined. However, another possible p~athway is a'djacent through-wall cracks in the tube and sleeve to which the ~ claims do not apply.
Second, the alleged low rate of in-leakage is supported for the first time in the Fletcher Affidavit in a one sentence assertion. That assertion is not supported with detailed results of any scientific analysis nor has the assertion been opened up for discovery to probe its basis.
With respect to Contention 2 relating to tube failures during normal operation, the Licensee asserts that sleeving does not increase the risx of tube failure. Licensee Resp., at p. 42.
But that really is the question posed in Contention 3, and, tneretore we will deal with the subject in that section.
1 .
The Staff adds an objection to the part of the contention based upon concerns over excessive primary coolant iodine levels.
According to the Staff, it is " unaware" of any instances in the past where iodine levels have been excessive in pressurized water reactors. Staf f Resp., at p. 22.
l However, the issue before the Board is the future, not the past. Although the Board has denied the admissibility of l WED-PA-08/31/82-P3:50266NRC.P50-7
> L evidence on the interrelated thermal shock problem, we would make tne following reply as an offer of proof. Since 1980, the Licensee has reracked the reactor at Point Beach Nuclear Plant so as to place high output assemblies at the center of the core to avoid intense radiation bombardment that would otherwlse i embrictie the beltline welding of the vessel wall if placed on ,
the perimeter. Letter from C.W. Fay (WE) to H.R. Den ton (NRC) ,
dateu January 15 , - 1982, at p. 3 of the attachment. . It necessarily follows that this reracking will significantly~ alter tne peaking characteristics,of the reactor in such a way as to r
create the possibility 3of embrittled cladding, lthat would lead to
\ s -
increased iodine levels in the primary coolant. .
To the part of the contention based upon excessive radioactive leakage through the spring operated sattey valve on the steam generator into the environment, the Staff attempts to eliminate the concern by positing future reliance on the secondary side power operated relief valve. According to Staff, tne Ginna operators improperly isolated the power operated reller valve before the accident which caused excess stress on the non-
, I isolable spring operated valve that can fall open. Since a functioning power operated r'ehief valve can be closed by the plant operators if it sticks, the. Staff contends the problem does not exist. Staf f Resp., at p. 22 to 23.
Tnis kind of minaset typifies one of the significant reasons why the Commission has f ailed to adequately regulate. It assumes tnat the 72 reactors spread across the country are all in mint condition, are each manned by flawless operators under laboratory l
l WED-PA-08/31/82-P3:50266NRC.P50-7
I conditions, and are not subject to economic constraints that bias against engineering necessary shutdowns.
In the real world, it is reasonable to assume that the reason tne Ginna operators isolated the power operated reller valve relates to the f act that the excessive cycling and crud buildup that shake loose from check valve shock lead to continual and annoying seal f ailures throughout the f acility. One quick fix response of plant operators in the real world is to isolate
" redundant" valves instead of constantly shutting down and repairing seals.
Operability of the secondary side power operated rellet valve is not a preemptory limiting condition for operation of Point Beach and, absent sucn a mandatory prohibition, it is unreasonable to assume hat the Licensee will operate the plant witnuut, in the future, taking the kinds of short cuts Ginna operators took in the past.
With respect to Contention 3(a) relating to inspectability, the Licensee argues that " sleeving in no way affects inspectability", Fletcher Af t. , at p. 6 113. This is contradicted by the Staff SER, Decade Motion, at App. III-C, and by some plant operators on the statf of the Licensee, Decade Motion, at App. III-E. Again, it must be emphasized that it is not the purpose of a summary judgment motion to weigh competing claims. The fact that there is a dispute, by itself, precludes summary judgment from being granted.
A furtner review of the Licensee's af fidavit shows that its claims do not rise to the level of denying the exi.stence of a factual dispute. Of the potential causes of degraded
4 inspectability, M r. Fletcher of Westinghouse states that scaling is not " expected" to be increased, the " objective" of all-volatile chemistry is to " minimize" concentration of solids, the presence of conouctive deposits will not "significantly" afrect eddy current testing. Fletcher Af fidavit, at pp. 8 and 9,118, 119 and 120.
Of course, these heavily qualified statements on their face do not rise to the level required by Rule 56 to eliminate the slightest dispute and restrict the public's right to test the validity of that representation in hearing. Furthermore, the contentions are supported by contrary opini_on from various sources that establish the f act that eddy current testing has suustantial limitations, and the Board must look at these in the light most favorable to the Decade. Decade Motion, at App. III-A ano III-B.
But, even if this were, arguendo, the appropriate time to judge the controversy on the merits, the Board has the industry's track record to consider in weighing Westinghouse's credibility.
Remember that Westinghouse on prior occasions has stated "tnat maintenance of the proper level of congruent phosphate will eliminate the source of f ree caustic and thereby aliminate new intergranular attack,ll Westinghouse, Revieg nf Steam Generator
. Tuba Esk1 urns Sanandarx Exstam Enter Chsakskrs(May 10, I r/ 2) (emphasis added), only to admit seven years later that "intergranular corrosion * *
- is believed to be saused by residual caustic from the use of phosphates for steam generator chemistry control", Ba Hisconsin Electric EQEgr Campany, PSCW 7
WED-PA-0 8/31/ 82-P3 : 50266 NRC. P5 0-7
L Docket 6630-UI-2, Utility Response (197 9) (emphasis added) .
In 1972 Westinghouse also stated "the alternate water chemisty (of all-volatile treatment] .is not recommended", Review nf Steam Generator Tube Failures, suora(emphasis added), yet two years later' confidently claimed that "AVT is now the preferred methoo of steam generator chemistry control", Letter from E. R.
Duhn(R) to G.A. Reed (WE), dated August 29, 1974.- Then, before tne year was out, a new form of degradation not previously experienced called " denting was first observed in steam generators arter the seconaary side water treatment had been changed from phosphate-type to AVT", J. Meyers, A Review for the Wisconsin Public Service Commission of Steam Generator Tuoe Corrosion at Point Beach Unit No. 1(March 22, 1981).
Westinghouse has also highly recommended that sludge lancing should be employed to remove corrosive deposits. "The cleansing action of tne lancing process together with post startup blowdown are considered to accomplish ef fectively a ' neutralization' of tne remaining depo si t s." Duhn Letter, ansIA. It is now recognized, however, that "the reason [ Westinghouse] got into l [ crevice corrosion problems] is because that's not steam blanketed [due to sludge lancing].11 Be Wisconsin Electric Power
! Comoany, PSCW Docket 6630-ER-10, at Tr. p. 1952.
Clearly, even if this tribunal were in a posture at this time of weighing the credibility of competing reprecentations, Westinghouse's deplorable track record speaks to the lack of creuence that can be given to iti unqualitied statements. Its qualified statements can only be considered as worthless.
For its part, the Staff primarily relles upon elaborate WED-PA-0 8/31/ 82-P3 : 5026 6 NRC. P50-7
h procedures for inspection to dispell any questions. Staff Resp.,
at p. 26. But these kinds of procedures have existed for years, Reculatory Guide 1.83, and that has not prevented four major 1
steam generator tube accidents in this country alone, Office of Nuclear Reactor Regulation, Evaluation 21 Steam Generator Tube Rupture Events, NUREG-0651(March 1980), and HBf Report an .1;hn January 2h 1982 Steam Generator Tube Ruoture A.t R. E. Ginna Nuclear Power Plant, NUREG-0909(April 1982). Procedures do not constitute a defense against disputed facts.
With respect to Contention 3(b) relating to the annulus, the Licensee states that "there is na mechanism by which secondary water impurities entering the tube sleeve annulus through a d eg r aded t ube c ould snnsaiyahh g ive rise to a corrosive environment", Licensee Resp., at pp. 45 to 46.
However, previous statements from the vendor have described tne annulus environment as the same as in the crevice. Decade Motion, at App. III-F. Experts from other utilities have pointed i
> to the f act that one of the more serious flaws in the sleeving process is the fact that it recreates the corrosive environment of tne crevice (which Westinghouse did not predict) in the annulus between the sleeve and tube. Decade Motion, at App. III-J. We have also cited to authoritative reports that strongly suggest a corrosion mechanism in the annulus under expected operatea conoitions. Decade Motion, at App. III-G, III-H and III "I".
Viewed f rom the perspective most f avorable to the Decade, the display of contradictory positions does not just'ify a WED-PA-0 8/31/ 82-P3 : 50266 NRC. P5 0-7
L conclusion that there is not the slightest basis for dispute over .
material facts.
4 The Statt argues that sleeving will not increase the level i xof impurities beyond that which already exists such as to eliminate concerns about the process. Statt Resp. at p. 29.
But this misses the critical point. It is undisputed that
~
the tubesheet crevice created a hostile environment that corroded tubes to an unacceptable extent. It is also undisputed that the Licensee and Statf discounted concerns with this degradation by
, pointing to the contraining influence of the surrounding tuoesheet wall that would allegedly retard in-leakage from ruptured tubes. What the Staff f ails to understand is that the sleeving process recreates that corrosive crevice problem in the annulus between the tube,and sleeve and that the annulus extends above tne constraining tube wall by several inches. This raises the most serious safety concerns in the case of adjacent cracks in tne tube and sleeve tnat it would be unconscionable to bar i
from even being discussed.
This Commission has already been severely chastized in the past by the American Physical Society and others for refusing to even consider major safety issues f rom tube degradation. Decade Motion, at App. I-B. The most recent Ginna accident demonstrated major anc potentially catastrophic omissions in sarety procedures for steam generators, Saf ety Evaluation Report Related fa &
Restart .Qf Ed Ginna Nuclear Power Plant, NUREG-0916(May 1982),
at ch. 3, most of which had been anticipated in an earlier Commitssion study, Evaluation af Steam Generator Tube Ruoture Events, supra, at pp.1-2 and 2-6, but which had not been acted WED-PA-0 8/ 31/ 82-P3 : 50 266 NRC . P50-7
0 L
upon. At this stage, the Commission's persistent and unflagging rerusal to even consider the most profound questions is ethically criminal.
With respect to Contention 3(c) relating to quality control.
again the Licensee and Staff rely upon a recitation of elaborate procedures. Even if the procedures to regulate channel head workers fail, they argue that testing will disclose any misrakes Licensee Resp., at p. 47; Statt Resp., at p. 30.
On the other i.and, the Board has before it the results of a Commission investigation of the only full-scale sleeving program ever performed which concluded that serious transgressions or channel head workers occurred. That sleeving program was conducted by the same contractor and subcontractor who will J
sleeve Point Beach. Decade Motion, at App. III-K. Also, the tests.at the other plant failed to disclose leaks that cuusequently developed atter a short period of operation. SER, at p. 36.
Using tne standards of Rule 56, this dif f erence of opinion cannot succeed in avoiding the existence of sufficient doubt to warrent a hearing.
Witn' respect to Contention 3(d) and (e) relating to under and over ' expanded tubes, the Licensee and Staf f point to post-installation inspections that allegedly eliminate this problem.
Licensee Resp., at p. 4 9; Staf f Resp., at p. 31.
However tnat inspection will only be conducted on 10% of the sleeved tubes. Af fidavit of Emmett L. Murphy, dated August 17, 19 82, at p. 6 114. Thus, 90% of the tubes may not be inspected, WED-PA-08/31/82-P3:50266NRC.P50-7
i b
and this large number of uninspected sleeve joints leaves '
suf ficient douot to def eat summary judgment. The leaks in the expanded sleeve joints at San Onof re, SER, at p. 3 6, attest to tne unresolveu nature of the problem.
With respect to Contention 3(f) relating to sleeving corroded tuoes, the Licensee argues that the tubes will be eddy current tested before being sleeved to avoid expanding a joint in a degraded region. Licensee Supp. Resp., at p. 9.
This may be, but the record contains evidence that the eddy current testing has been found inetfective in locating 30%
through wall defects even in lab, atory tests. Decade Motion, at App. III-B. The fact of the matter is that no one knows the true state of the tubes in Point Beach. Suf ficient doubt exists to preclude summary judgment.
s With respect to Contention 4 relating to leaking plugs, the Licensee's def ense is confined to a statement that the issue is not relevant. Licensee Resp., at p. 51. This has been dealt with in Part III, suora, and will not be repeated here.
The Statf contends that plugs would not rock loose during a loss-of-coolant-accident and are, therefore, not a source of concern over in-leakage. Staff Resp. at 34. However, the actual record has shown instances where plugs have f allen out of the tune unoer normal operating conditions, Letter from G.A.
Reed (WE) to D.C. Spencer (E), dated November 1, 1977, which creates more than sufficient doubt over their integrity in accident conditions to defeat summary judgment.
With respect to Contention 5 relating to loose parts, the Licensee and Staff argue that the issue is irrelevant because WED-PA-08/31/82-P3:50266NRC.P50-7
l sleeving will be limited to the primary side of the steam generators. Licensee Resp., at p. 51; Statf Resp. at p. 34.
However, as already explained in Part III, suora, the issue is relevant because, in the real world, it may be necessary to undertake unscheduled work on the secondary side.
CONCLUS ION Above all else, the Board must constantly remember that it is nnt now judging the merits of the case.
Were this Board to accede to the Licensee and Statf, it would shamefully repeat the inexcusable record of neglect compiled by tne Commission which has not only f ailed to resolve major saf ety problems, but also has refused to even consider tnem. For this failure in the past, it has been roundly criticized by prestigious scientific bodies, by Congress, by the puulic ana by dissenting Commissioners. i There is no possibility of avoiding the ultimate consequence ot such a pattern of malign neglect, for the inevitable result is .
a nuclear nightmare.
In tne artermath of such an event, legal niceties will not serve as a defense to individual responsibility.
DATED at Madison, Wisconsin, this 31st day of August, 1982.
WISCONSIN'S ENVIRONMENTAL DECADE, INC.
by ,
. 3/ P PETER ANDERSON Co-Director 114 North Carroll Street Suite 208 Madison, Wisconsin 53703
- WED-PA-08/31/82-P3:50266NRC.P50-7
4 UTITED STA'IES Or MERICA .
. NUCIEAR REGUINIORY CO?" MISSION f U00KETED Wisconsin Electric Pctser O:xtpany USNRC POINT BEACil NUCIEAR PIANT UNI'IS 1 & 2 Docket Nos. 50-266 and 50-301 CtarIFICAas or SERV 1Cs W SEP -1 P3:31 ur r Nt or stCRtTA.i .
00CKETING & SERVICE BRANCH I certify that true and correct copies of the foregoing document will be served this day by depositing copics of the sama in the first class untla, postage pre-pa.ul and correctly addressed, to the follcaing:
Peter B. Bloch, Chairnun ,
Atomic Safety & Limnsing Board U. S. Nuclear Pegulatory Camission Washington, D. C. 20555 Dr. Hugh C.*Paxton 1229 -41st Street Ios Alamos, New IbxLoo 87544 Dr. Jerry R. Kline Atonuc Safety & Licensing Board U. S. Nuclear Ibgulatory Ccouission Washington, D. C. 20555 '
Docketing & Service ,.
U. S. Ihrlear Ibgulatory Comnission Washington, D. C. 20555 Mr. Richard Bachmann Office of Emcutive Ingal Director U. S. Nuclear Pcqulatory Comnission Vhshingtcn, D. C. 20555 I Mr. Bruce W. Churchill f Shaw Pittman Potts and 7trabridga l 1800 M. Street N.W.
Wasnington, D. C. 20036
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% d el. c (< N k Carol Pfeffd,rkorg NW: S-b - $d
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