ML20065K398

From kanterella
Jump to navigation Jump to search
Intervenors Petition for Review of ALAB-940.* Aslab Erred in Holding That Intervenors Failed to Meet Std for Reopening Record & Cut Off Intervenors Hearing Rights.Commission Should Review & Reverse ALAB-940.W/Certificate of Svc
ML20065K398
Person / Time
Site: Seabrook  NextEra Energy icon.png
Issue date: 11/07/1990
From: Greer L
MASSACHUSETTS, COMMONWEALTH OF
To:
NRC COMMISSION (OCM)
References
CON-#490-11027 ALAB-940, LBP-89-28, OL, NUDOCS 9011270178
Download: ML20065K398 (9)


Text

. . .. -.

' l

//07 7= 1 1

  • i 00CKETED d esse  :

UNITED STATES OF AMERICA before the- E SY -8 i P3 :24' NUCLEAR REGULATORY' COMMISSION rM fCFCi EECPIl/P

' ,NiN - . 'U Viu )

a u L' ,

)-

In the Matter of .)

) Docket Nos. 50-443-OL- ,

PUBLIC SERVICE COMPANY ) 50-444-OL '

OF NEW RAMPSHIRE, ET AL. ) (Off-Site Emergency _

) Planning and Safety 1 Issues) {

(Seabrook Station, Units 1 and 2) )

)

INTERVENORS' PETITION - FOR REVIEW OF ALAB-94 0 THE DECISION BELOW

(

In ALAB-940, 'Public Service Comoany of New Hamoshire. '

(Seabrook Station, Units 1 and 2), __ NRC __(1990), the Appeal Board affirmed a decision of the-Licensing Board, LBP-89-28, 2 Public Service Comoarv of New Hamoshire (Seabrook Station,  ;

Units 1 and 2), 30 NRC 271 (1990), that rejected contentions '

l 1

arising from problems exhibited while a test was being l

conducted under Seabrook Station's low power license. That-1 test occurred on June 22, 1989, prior to the close of.the 1 hearing record in the Seabrook operating license proceeding.

~

While that record was still open, the Intervenors informed the Licensing Board.that they_'were intending to file a contention.

arising out of the problems demonstrated in the-test. The 1 Intervenors moved the Licensing Board to hold open the record i i

l l

l 9011270178 901107 PDR ADOCK 05000443

$p 0 PDR 1

I 1

pending resolution of those issues. The Licensing Board denied' that request and cloaed'the record on. June 30, 1989. T28290, i

The contentions that the Intervenors filed as'a result of the June 22 incident challenged the~ training and qualifications -  ;

of the plant operators and F.anagement,nand asserted that ,

adequate management and administrative controls.to operate I Seabrook as required by the commission's quality'abaurance regulations, 10 C.F.R. Part 50, Appendix B, were lacking.1 t Those assertions were supported by affidavits furnished by =

experts who opined that the Applicants had violated the commission's quality assurance regulations;and that such a l violation had significant safety implications. The Intervenors' experts further opined-that the events of1 June 22 when considered with other operational errors showed.a " pattern of procedural non-compliance.at the Seabrook Station."

Minor /Sholley Affidavit, Attachment A to the July 21, 1989 Motion at Pp 22, 23, 26. In rejecting those contentions the' Licensing Board held that the Intervenors' Motion.had to meet ~ '

the Commission standards for reopening the-record found in 10 l

C.F.R. 52.734, and concluded that the motion did not meet those - l standards. LBP-89-28, 30 NRC at 284-92. D The Appeal Board upheld the^ Licensing Board's determination- 1 that the Intervenors' Motion was required:to complyfwith the l Commission's standards for reopening the record. ALAB-940,

! Slip Op. at Pp 8-26. The Appeal' Board then went on to concur with the Licensing Board that the Intervenors' Motion s failed. to-l l

l l

l l

e o.

meet the stringent criteria of 10 C.F.R. 52'734.

Id. at: 27 through 32. As seen in the. reasons provided below, that.

determination was clearly erroneous..

WHERE THE MATTERS ARE RAISED BELO_W All matters were raised by the parties in briefs below.-

WHY THE RULING WAS ERRONEOUS The Appeal Board erred in' holding that the Intervenors'  ;

motion failed to meet the criteria for reopening the record set forth in 10 C.F.R. 52.734. In upholding the Licensing Board's- .

finding on that issue, the Appeal Board agreed with the Licensing Board that the motion failed to present~a significant safety issue. ALAB-940, Slip Op. at 31. In'so. holding, the' '

Appeal Board cited to its ruling in.ALAB-756 that:

for new evidence to raise a "significant safety issue"-for purposes of reopening the record, it must establish either [

that uncorrected . . . . errors endanger safe plant operation, or that there bas been a breakdown of the quality assurance program sutilcient to. raise legitimate doubt as to the plant's capability-of'being operated safely. Pacific Gas and Electric Co. (Diablo Canyon i

Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, t

1345 (1983).

After first noting that the Intervenors didinot claim that the safe operation of the plant was threatened by the natural.

I circulation test, the Appeal' Board declared.that the l

Intervenors "have focused on the second prong of.this test.by I

attempting to show that failures in the applicants training, maintenance, and start-up quality. assurance programs are so-

_3_

l

, . o I

l l

pervasive as to raise legitimate doubt that'the plant can be- l operated safely". ALAB-940, Slip Op. at 32. The Board'then l went on to conclude that even_ assuming the factual representations of the Intervenors- were ctrue, they failed as a- ~

matter of law to' raise a legitimate doubt that the plant can be 1

operated safely. In essence, the Appeal Board concluded that a  !

I single incident of personnel error can never be used as a basis  !

to show "a wholesale and widespread breakdown of-the applicants' quality-assurance programs." Id. at 32.

1 This conclusion is erroneous for two reasons. First, it- i l

l ignores the assertions in the Intervenors' motion, and the '

affidavits attached thereto,-that the' incident of June 22, 1989 ,

when considered with other incidents showed a pattern of  !

ron-compliance. In upholding the Licensing Board on this l

.i issue, the Appeal Board engaged in the same mistake as the Licensing Board did below.of making an initial factual determination on the merits of the proffered. contentions. The Licensing Board below had indulged in pure conjecture on the l

merits of the contentions and decided that the contentions did -

not make out a case of pervasive breakdown. LBP-89-28, 30'NRC at 54. Thus, the Licensing Board concluded that the issues- i presented in the contentions were not safety significant. l The Appeal Board, in turn,-repeated the error of the Licensing Board by ignoring the' factual allegations in the  !

contentions of a pattern of non-compliance based upon the i events of June 22, 1989 and other incidents. '

l i

-4 -

{

I

i

. i only by ignoring the allegations in the contention that the i

June incident was part of a pattern of non-compliance, could l

the Appeal Board determine that there was no pattern showing'a' i l breakdown of the quality assurance programs. In actuality, what the Appeal Board was doing was stating that it did not believe the allegations that pattern of non-compliance 1

existed. Such a factual threshold-determination.is not a i

permissible ground for rejecting a contention. 'I Apparently, the Appeal Board recognized that it was on thin ice in rejecting the contentions by making such a factual determination. Therefore, to buttress its position it held  ;

that as a matter.of law an incident of personnel error can not raise a significant safety issue. The logical implication of l such a holding is that a personnel error, even if it was-greivous enough to cause core meltdown,-could not raise a- ,

significant safety issue. That position is facially absurd..

Under that view of safety significance, personnel deficiencies could never give rise to contentions that meet the reopen the '

record standard. That would result in being able to reopen the record only to challenge technical or mechanical' failures.in a plant.

The Appeal Board implies that as a matter of law it.would ,

take a great deal more than a single personnelEincident'to ever raise a significant safety issue. Id. at 32. The Board does not identity what further factual allegations would be necessary to show a significant safety issue. As previously- 1 stated, the Board ignores that in this case 'the Intervenors'  !

)

s 4

experts had opined that the June 22. incident in' conjunction with other events showed a pattern of~a nonecupliance.- Even if  ;

1 one were accept Appeal Board's - holding as- implying' nothing more than the semantic truism that one' incident-can not show a pattern which by definition must be made up-on more than one event, that does not absolve-the Appeal Board's error since .

here there were allegations of'a pattern.

1 CONCLUSION Therefore, since the Appeal Board erred in: holding that.the {

Intervenors failed to meet the. reopen the record standard and thus, cut off the Intervenors' hearing rights, the commission I should review and reverse ALAB-940.

COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON ATTORNEY GENERAL ~

.. , D'. 1 Leslie Greer Assistant Attorney General Department of the Attorney General One.Ashburton Place.

Boston, MA 02108-1698

'(617){727-2200 1

DATED: November 7, 1990 '!

1956n l

1 l

1

a i

UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMISSION.

-USNRC ATOMIC SAFETY AND LICENSING BOARD .

1 Before the Administrative Judgest . % NOV -8 P3 :24 'l Ivan W. Smith, Chairman Dr. Richard F. Cole- .h[chhjj/f/y" MANCH Kenneth A. McCollom. -;

i

.. ,i

)

In the Matter of )

)

Docket-Nos. 50-443-OL PUBLIC SERVICE COMPANY 50-444-OL

).

OF NEW HAMPSHIRE, EI &L. ). '

)

(Seabrook Station, Units 1 and 2) ) November 7, 1990

)

CERTIFICATE OF SERVICE I,

Leslie Greer, hereby certify that on NovemberL7, 1990,.I made i service of the within INTERVENORS' PETITION FOR REVIEW 0F ALAB-940 by Federal Express as indicated by (*), by hand as indicated lby

(**),

and by first class mail to:

  • Ivan H. Smith, Chairman  !

Atomic Safety & Licensing Board *Kenneth A. McCollom U.S. Nuclear Regulatory 1107 W. .Knapp St.

Commission Stillwater,-OK 74075 ,

i East West Towers Building .

4350 East West Highway

  • Docketing and Service .

Bethesda, MD 20814 U.S. Nuclear Regulatory

. Commission 11555 Rockville Pike Rockville, MD 20852

  • Dr. Richard F. Cole Atomic Safety & Licensing Board Paul McEachern, Esq.

U.S. Nuclear Regulatory Commission Shaines & McEachern East West Towers Building 25 Maplewood Avenue 4350 East West Highway P. O. Box 360 Bethesda, MD 20814 Portsmouth, NH 03801 i

a  ?

e  ;

q Robert R. Pierce, Esq. ** Thomas G. Dignan, Jr.1/

Atomic Safety & Licensing Board Katherine Selleck, Esq.

s U.S. Nuclear Regulatory Commission Ropes & Gray ,

East wist Towers Building One International Place 4350 East West Highway Boston, MA 02110

( Bethesda, MD 20814 1

l H. Joseph Flynn, Esq. *Mitzi A. Young, Esq.

Assistant Ge.ieral Counsel Edwin J. Reis, Esq.

Office of General Counsel U.S. Nuclear Regulatory Federal Emergercy Management Commission s

Agency Office of the General Counsel 500 C Street, S.W. l 15th Floor l Washington. DC 20472 11555 Rockville Pike l Rockville, MD 20852 Atomic Safety & Licensing Robert A. Backus', Esq.

Appeel Board Backus, Meyer & Solomon ]

U.S. Nu11 ear Regulatory 116 Lowell Street Commiscion P.O. Box 516 Washingtoe, DC 20555 Manchester, NH 03106 l Atomic Safety & Licensing Board Jane Doughty U.S. Nuclear Regulatory Commission Seacoast Anti-Pollution League Washington, DC 20555 5 Market Street Portsmouth,: NH 03801 Charles P. Graham, Esq. Barbara St. Andre, Esq.

Murphy & Graham Kopelman & Paige, P.C 33 Low Street 77~ Franklin. Street '

Newburyport, MA 01950 Boston, MA' 02110 3

Judith H. Mizner, Esq. R. Scott Hill-Whilton, Esq.

79 State Street. Lagoulis, Hill-Whilton 2nd Floor & Rotondi Newburyport, MA 01950 79 State Street' Newburyport, MA -01950 Diane Curran, Esq. Ashod N. Amirian, Esq.

Harmon, Curran, & Towsley 145 South Main Street Suite 430 4

P.O.. Box 38 2001 S Street, N.W. Bradford, MA 01835 '

Washington, DC 20008 Senator Gordon J. Humphrey- Senator Gordon J. Humphrey .

U.S. Senate One Eagle Square, Suite 507 '

Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack) (Attn: Herb Boynton) 1/ Hand delivery was made on November 8, 1990 by 10:00am 1

-o 1

John P. Arnold, Attorney General Phillip'Ahrens, Esq.

Office of the Attorney General Assistant Attorney General. ,

25 Capitol Street Department of the Attorney _!

Concord, NH 03301 General Augusta, ME 04333 Jack Dolan George Iverson, Director Federal Emergency Management N.H. Office of Emergency-Agency -Management Region 1 Ctate House Office Park South J.W. McCormack Post Office & 107 Pleasant Street' 4

l Courthouse Building, Room 442 Concord, NH 03301-Boston, MA 02109 I

l COMMONWEALTH OF MASSACHUSETTS JAMES M. SHANNON l ATTORNEY GENERAL I 1

_s>,o l' ( .a c-Leslie Greer Assistant Attorney General-Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 l

I DATED: November 7, 1990 l

i l

l l

1 l

1 l

l j

l i

'