ML20071K763

Motion to Strike Gc Minor Testimony on Suffolk County Contention 16 Re Atws.Testimony Beyond Scope of Admitted Contention.Certificate of Svc Encl.Related Correspondence

ML20071K763
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/27/1982
From:	Earley A HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8208020209
Download: ML20071K763 (10)

Text

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. LILCO, July 27, 1982 RELATLD Coluu::SroNDEncw Tf3 UNITED STATES OF AMERICA 30 IX' 28 NUCLEAR REGULATORY COMMISSION C S?cREp O'TE.fn  ? 7Ei , -

1 Before the Atomic Safety and Licensing Board " 'E i 1

4 In the Matter of ) J 4. . - . _ _

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)

)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S MOTION TO~ STRIKE THE TESTIMONY OF GREGORY C. MINOR ON SUPPOLK COUNTY CONTENTION 16 -- ATNS I.

On June 29, 1982, Suffolk County filed Mr. Minor's testi-mony on Suffolk County Contention 16 The contention reads as follows:

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Although the anticipated transients without scram issue is generically before the Commission in a rulemaking proceed-ing, Suffolk County contends that LILCO and the NRC Staff have not adequately demonstrated that Shoreham meets the requirements of 10 CPR Part 50, Appendix A, GDC 20, re-garding correction of the ATWS problem in the interim period of several years pending completion and implementa-tion of the result of the rulemaking for Shoreham. This is because the interim measures to'be taken at Shoreham, in-cluding operational procedures and operator training, will not compensate for the lack of an automatically initiated and totally redundant standby liquid control system (SLCS) which meets the single failure criterion.

For the reasons set out below, LILCO moves to strike all of Mr. Minor's testimony on SC 16.

8208020209 820727 PDR ADOCK 05000322 O PDR hh]

II.

The County's testimony on ATWS should be struck because it is beyond the scope of SC 16 as admitted by the Board. .Under the NRC's rules of practice, testimony must be relevant to issues in contention. 10 CFR Section 2.742(c). Testimony that is irrele-vant is the proper subject of a motion to strike. See 10 CFR Part 2, Appendix A, at Section V(d) (7) .

As admitted, SC 16 was expressly limited to the interim period between the time that Shoreham begins operation and the implementation of any ATWS rule.1/ The contention, on its face, assumes the lack of an automatic SLCS and directs the focus of the litigation to the adequacy of the interim measures taken by LILCO; thus, the Board explained that "the question will be whether the plant design and operating actions in place pending the com-pletion of the rulemaking will compensate for the lack of auto-matic imitation of SLCS in terms of providing the level of protection required by GDC 20." Memorandum and Order of March 15, 1982, at 18.

1/ As with many contentions in this proceeding, significant effort went into focusing the ATWS contention. In the form pro-posed by the County on February 15, 1982, the contention alleged a general failure to deal with ATWS:

Suffolk County contends that LILCO and the NRC Staff have not i adequately demonstrated that Shoreham meets the requirements of 10 CFR 50, Appendix A, GDC 20, regarding correction of the anticipated transients without scram (ATWS) problem.

After LILCO and the Staff objected, the County attempted to clarify its concern by focusing the contention on the lack of an automated, fully redundant SLCS at Shoreham. LILCO's and the Staff's objec-tions remained. Following the oral argument at a prehearing

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conference on March 10, 1982, the Board further restricted the scope of the contention to " interim measures to be taken at Shoreham, including operational procedures and operator training . . . ."

As the Board recognized, the Nuclear Regulatory Commission I expressly found in its notice of proposed rulemaking on ATWS that the risk from ATWS is acceptably small in the interim period because of certain considerations enumerated by the Commission, includ-ing the existence of interim ATWS measures. See Tr. at 231; 46 Fed. Reg. 57522.

Accordingly, SC Contention 16, as admitted by the Board, focuses on (a) whether LILCO adequately complies with the interim measures relied on by the Commission in its ATWS rulemaking notice, and (b) whether the Shoreham design is essentially the same as those of other BWR's, such that the generic interim ATWS finding made by the Commission is applicable to Shoreham. The County's testimony made no attempt to address either' issue.

The lack of connection between Mr. Minor's testimony and the interim period is illustrated by the non-evidentiary summary of the testimony:

Suffolk County contends that the present standby liquid con-trol system ("SLCS") at Shoreham is inadequate to mitigate the range of ATWS consequences that might occur at the facility. The Shoreham SLCS is manually initiated and non-redundant. By automating the system and increasing its flow rate, the SLCS would mitigate a larger range of ATWS consequences and thus reduce the risk of core melt accidents at tlie f acility.

This summary accurately reflects the lack of any substantive discussion of the interim measures taken at Shoreham. Passing reference to some of these measures (e.g., one sentence on page 8 mentions operating procedures and training) falls far short of

meaningful discussion of the portinent steps.

Section VI of Mr. Minor's testimony does argue that there would be safety, value-impact and ALARA benefits to be gained by.

making SLCS modifications-now rather than after the ATWS rule-i making, presumably on the assumption that the rulemaking will im-pose such requirements. The hypothesis that benefits may accure

. from making changes now rather than latter, however, has no bearing on whether the current design is acceptable. The issue is whether the NRC's interim ATWS requirements have been met, not whether these requirements would yield a net benefit if they were made more stringent. The latter question is one reserved for the Commission. And, in.the case of ATWS, considerations such as the relative safety benefit and the value-impact balance (including ALARA considerations) are being dealt with in the rulemaking. Thus,Section VI of Mr. Minor's testimony is not. germane to the present contention; it cannot salvage testimony that otherwise has nothing i

to do with the interim period and LILCO's interim measures.

To reiterate, the Board specifically limited SC Contention 16 to the interim period between the licensing of the plant and implementation of an ATWS rule. The County decided to ignore this limitation and address ATWS in general. Consequently, the County's testimony on SC 16 goes beyond the issues admitted and should be struck.

III.

i It bears emphasis that Mr. Minor's testimony deals wit'h issues squarely within the scope of the ATWS rulemaking. Boiled down to its essentials, the suffolk County testimony alleges that a high

capacity,' automated SLCS is necessary to mitigate "a larger range of ATWS consequences" and thereby reduce'the risk of core melt accidents. But this is the basic BWR issue presented for i resolution in the ATWS rulemaking. As noted below, two of the proposed alternatives would require automation, one would not.

Similarly, the appropriate size of the SLCS"(see, e.g.,

Mr. Minor's testimony at pages 5-6, paragraphs 11-12) is also to be determined in the rulemaking. In fact, the evaluation models and acceptance criteria to be used in determining whether there is a need for SLCS automation and increased capacity are a part of the rulemaking. Even the issue of the single failure criterion is squarely addressed. One of the proposed rules would require that plants issued OL's after January 1, 1984 must take random single failures in ATWS mitigating systems into account. Sec 46 Fed. Reg. at 57525.

The link between Mr. Minor's testimony and the rulemaking is particularly obvious given the County's extensive reliance on-NUREG-0460 to support the notion that LILCO must increase the capacity of, and automate, Shoreham's standby liquid control ,

, system. In the rulemaking, the NRC is considering three proposed alternative rules: two would require an automated SLCS, and one would not. Of the former, one is a dir.ct result of the NRC Staff's efforts in NUREG-0460. ("The.first NRC-proposed rule is known as the staff rule and is a direct outgrowth of NUREG-0460,

' Anticipated Transients Without Scram for Light Water Reactors,'

. Volumes 1-4." 46 Fed. Reg. 57522). Accordingly, the County's

testimony on SC 16 is.an attempt to litigate issues not covered by the contention but squarely covered, and directly before the Commission, in the ATWS rulemaking.2/

IV.

In addition to the reasons stated above for striking the County's SC 16 testimony in its entirety, some of the testimony should also be struck for complete lack of probative value.

2/ Though not relevant to the present motion to strike, it remains LILCO's view that the Appeal Board's decision in Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station) ,

ALAB-655, 14 NRC 799, 816 (1981), is directly applicable to ATWS.

The hydrogen control issue considered in Rancho Seco had safety impli-cations in the interim akin to thoce of interim operation without an ATWS rule. Yet the Appeal Board concluded that'the issue should not be litigated in an individual licensing case. Part of the conclusion seemed to be based on the fact that the Board could " rely on the Commission's implied judgment that the operation of Rancho Seco

. . . in the interim will not present an undue hazard to health and safety." Id. at 816, quoting Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-81-12, 13 NRC 557, 637 (1981). In the case of ATWS, the Commission has made an explicit finding that based on certain enumerated considera-tions, including some interim ATWS measures, "the Commission be-lieves that there is reasonable assurance of safety for continued operation until implementation of a rule is complete." 46 Fed.

Reg. 57522. Thus, the rationale of Rancho Seco would seem to apply with force here.

Indeed, in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), slip op. at 31 (March 5, 1982), the Board held that the Commission's interim determination in the notice of ATWS rulemaking was controlling when the thrust of a contention was "that the applicants have failed to demonstrate that the risk from an ATWS event is such that there is a reasonable assurance that the Catawba plant can be operated prior to the completion of the Commission's pending rule-making on that subject." But see Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), slip op. (Janu-ary 6, 1982).

1 Although the; weight to be accorded a piece of evidence is normally a matter to be tested by cross-examination, testimony without any probative value at all is properly subject to a motion to strike.

Section V of Mr. Minor's testimony relies on a comparison of the results of the Shoreham and Limerick PRAs. First, the County compares the frequency of core vulnerability for the release cate-gories in the Shoreham PRA to the frequency of core melt for the release categories in the Limerick PRA. Second, the County com-pares the relative frequency of core vulnerability and core melt (for Shoreham and Limerick respectively) for ATWS to the total frequency.

In drawing the above comparisons, the County cites summaries of the PRA results that were the subject of considerable discussion in the testimony of LILCO's witnesses on SC/ SOC 7B. It is readily apparent from a review of the record, that any comparison of the plants using the information cited by Mr. Minor in his testimony is meaningless and has no probative value. Dr. Edward Burns, a principal participant in both the Shoreham and Limerick PRAs, had this to say about the comparison of frequencies that SC attempts to make in Table 1:

As I have tried to say before, you can't compare the two classes. (Class III at Shoreham and Limerick). That is not the correct comparison to be making. I don't know why you want to do that. It doesn't make any sense.

Tr. at 6203. And with respect to Class IV he said:

There is some contribution to that difference due to the change from alternate 2(a) to 3(a), but it is only a partial factor at Limerick in changing the risk between Shoreham and Limerick in what is referred to as Class 4 (sic) in both plants.

Tr. at 6006; see also Tr. at 5791.and 6315-16.

. .= .

s With respect to the " pie charts," when Dr. Burns was asked whether Figure 3.5.4 of the Limerick PRA (top of page 9 in SC's testimony) and figure 3.6.6 (bottom of page 9 in SC's testimony) were comparable, he said: "As I stated before, the Shoreham calcu-lation'was for core vulnerable condition, and these two (Limerick vs. WASH-1400) are calculations of frequency of core molt." Tr.

at 5793. Similarly, Dr. Joksimovich's view was that the Limerick chart compared " apples and apples" and the Shoreham charge compared

" apples and oranges." See also, Tr. 6307-08.

Moreover, as indicated by Dr. Burns, the Limerick PRA has been revised. Since SC stated that it did not have a copy of the revised Limerick PRA, the data used in this testimony are presumably from the original version. This is another reason why ,

the testimony in Section V has no probative value.

V.

For the reasons stated above, Suffolk County's testimony on SC 16 should not be admitted in evidence in this p roceeding.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY 2//~, < h' e-

~7 m, W. Taylor Reveley, 111 '/-

Anthony F.pd'arley, Jr.

Hunton & Williams Fost Office Box 1535 Richmond, Virginia 23212 DATED: July 27, 1982

o In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322 (OL)

I certify that copies of "LILCO'S MOTION TO STRIKE THE TESTI-MONY OF GREGORY C. MINOR ON SUFFOLK COUNTY CONTENTION 16 -- ATWS" were served upon the following by hand, on July 27, 1982, as indicated by an asterisk:

Lawrence Brenner, Esq.* Bernard M. Bordenick, Esq.*

Administrative Judge David A. Repka, Esq.

Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory 1717 H Street, N.W.

Commission Washington, D.C. 20555 Washington, D.C. 20555 Herbert H. Brown, Esq.*

Dr. Peter A. Morris

• Lawrence Coe Lanpher, Esq.

Administrative Judge Karla J. Letsche, Esq.

Atomic Safety and Licensing Kirkpatrick, Lockhart, Hill, Board Panel Christopher & Phillips U.S. Nuclear Regulatory 1900 M Street, N.W.

Commission Washington, D.C. 20036 Washington, D.C. 20555 Secretary of the Commission Dr. James H. Carpenter

• U.S. Nuclear Regulatory Administrative Judge Commission Atomic Safety and Licensing 1717 H Street, N.W.

Board Panel Washington, D.C. 20555

! U.S. Nuclear Regulatory l Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel U.S. Nuclear Regulatory Walter H. Jordan

• Commission Administrative Judge 1717 H Street, N.W.

Atomic Safety and Licensing Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Mr. Mark W. Goldsmith Commission Energy Research Group Washington, D.C. 20555 400-1 Totten Pond Road Waltham, Massachusetts 02154

i *

. .a David J. Gilmartin, Esq. Ralph Shapiro, Esq.

Attn: Patricia A. Dempsey, Esq. Cammer and Shapiro, P,C.

County Attorney 9 East 40th Street Suffolk County Department of Law New York, New York 10016 Veterans Memorial Ilighway Hauppauge, New York 11787 Matthew J. Kelly, Esq.

State of New York MHB Technical Associates Department of Public Service 1723 Hamilton Avenue 3 Empire State Plaza Suite K Albany, New York 12223 San Jose, California 95125 Mr. Jay Dunkleberger Stephen B. Latham, Esq. New York State Energy Office Twomey, Latham & Shea Agency Building 2 33 West Second Street Empire State Plaza P. O. Box 398 Albany, New York 12223 Riverhead, New York 11901 Howard L. Blau, Esq.

217 Newbridge Road flicksville, New York 11801 AT~!:L.,f.+4?n.f,,-

W. Taylor Reveley,-III /

Anthony F.,Earley, Jr. /

!!unton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED: July 27, 1982

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