ML20077G220

Brief of Petitioners on Appeal of LBP-91-19.* Licensee Appeal Should Be Denied in Entirety,Because of Foregoing Reasons.W/Certificate of Svc

ML20077G220
Person / Time
Site:	Palo Verde
Issue date:	06/07/1991
From:	Colapinto D ARIZONA PUBLIC SERVICE CO. (FORMERLY ARIZONA NUCLEAR, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA, MITCHELL, A.L., MITCHELL, L.E.
To:	NRC COMMISSION (OCM)
References
CON-#291-11839 91-633-05-OLA-2, 91-633-5-OLA-2, LBP-91-19, OLA-2, NUDOCS 9106250070
Download: ML20077G220 (10)

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. . - ij i' l t ':e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .m F 10 P/'31 BEFORE THE COMMISSION

) Nos. 5 0 - 5 2 8 -O LA- 2 , 5 0- 5 2 9-O LA- 2 In the Matter of

) and 50-530-OLA-2 ARIZONA PUBLIC SERVICE )

COMPANY, et al. ) (Allowable Setpoint Tolerance)

)

(Palo Verde Nuclear ) ASLB No. 91- 6 3 3 -0 5 -O LA-2 Generating Station, )

Units 1, 2 and 3) )

)

Brief of P_etitioners on_hppeal of LDP-91-19 Pursuant to 10 C.F.R. 5 2.714a, Petitioners Allan L.

Mitchell and Linda E. Mitchell hereby file their brief in opposition to the appeal of Arizona Public Service Company, et al. (" Licensees" or "APS") from the May 9, 1991 Memorandum and Order ("M&O") of the Atomic Safety and Licensing Board ("ASLB").

The ASLB granted Petitioners leave to intervene and request for hearing in this proceeding, specifically admitting contention No.

1. See, Supplemental Petition of Mitchell Petitioners for Leave to Intervene at pp. 2-3 (March 9, 1991).

Licensees' appeal is based on two grounds: (A) that the ASLB misconstrued the pleading requirements of 10 C.F.R. 5 2.714 in admitting the first basis of Contention 1; and (B) that petitioners are attempting to challenge the adequacy of NRC regulations in violation of 10 C.F.R. 5 2.758.

1 9106250070 910607 PDR ADOCK 05000528 PDR G

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There is no merit to oither of these grounds as asserted by APS on appeal. The M&O is soundly decided and should be upheld in its entirety.I' ARGUMENT I. THE ASLB PROPERLY ADMITTED THE FIRST DASIS OF CONTENTION ONE The standards required of intervonors for pleading safety contentions in ASLB proceedings were amended in 1989 to " conform NRC practice acre closely to that permitted by the Federal Rules  ;

of Civil Procedure." see, Supplementary Information, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33168, 33169 (Aug. 11, 1989). The NRC's revised pleading requirements were " intended to parallel the standard for dismissing a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure." Idt, 54 Fed.-Reg. at 33171.

Citing authority developed under Rule 12 (b) (6) the ASLB held that the Petitioners were " entitled to a liberal construction of their contention, and their allegation should be construed most favorable to them." M&O at p. 10. Additionally, the ASLB placed emphasis on long standing commission precedent affording Licensing Boards discretion or " leeway in judging the sufficiency of intervention petitions" when petitioners are represented by counsel "new to the field" of NRC intervention practice. Kannan Gas-and Electric Co., et al t (Wolf Creek Unit No. 1) ,- ALAB-2 7 9, 1 1/ Petitioners respectfully refer the Commission to the May 9, 1991 M&O for a review of the procedural history herein and for a detailed discussion of the proposed contentions.

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I NRC 559, 576-77 (1975). See a ljio , M&O at pp. 8-9. The ASLB correctly noted that petitioners' counsel is inexperienced in the complexities of NRC intervention law.

These principles are in accordance with Commission " policy" to avoid the dismissal of parties "because the niceties of pleading were imperfectly observed." 11pEdon hitihting and Power Co.. et al ._ (South Texas, Units 1 and 2), A LA B- 5 4 9 , 9 NRC 644 (1977). As has been the case under the Federal Rules of Civil procedure, it has long been Commission policy "to decide issues on their merits, not to avoid them on technicalities." 1d1 Notab.y, none of these principles were overturned by the 1989 amendments to the NRC Rules of Practice. Indeed, the ASLB acted fully within its discretion by applying the above-stated principles to its interpretation of petitioners' Contention No.

1.

As summarized by the NRC Staff below, the revised Rules of Practico require a petitioner to " provide come factual basis for its position and demonstrate that there exists a genuine dispute between it and the licensee." NRC Staff Response...at p. 8 (March 26, 1991), citina 54 Fed. Reg. at 33171. In its Supplementary Information to the revised rule the Commission elaborated on this standard by stating that a petitioner "must make a ELDimal showing that facts are in dispute, thereby demonstrating that an ' inquiry in depth' is appropriate." 54 Fed. Reg, at 33171, quotinq Connecticut Bgnhers Ass'n v. Board of Governors, 627 F.2d 245, 251 (D.C. Cir. 1980) (emphasis added).

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I APS's appeal must be denied because there has been no showing by the Licensees that the ASLB abused its discretion by construing the first basis of Contention No. 1 in Petitioners' favor.E' In fact, the case law demonstrates that it would have been an abuse of discretion not to have construed Petitioners' contention in the light most favorable to them.

Additionally, the pleading standards do not require an intervonor "to make its case" at this stage. 54 Ped. Reg. at 33170. Notably, Petitioners only need make a " minimal showing" of a genuine factual dispute between the parties -- they are not required to allege every fact in support of their contention. 54 Fed. Reg. at 33171.

Because Petitioners did provide sufficient facts in support of its first basis of Contention No. I which enabled the ASLB to infer a challenge .o the HPPT response tino, it was not an abuse of discretion on the part of the ASLB to permit the litigation of this issue as part of Contention No. 1. AL noted by the ASLB:

The HPPT response time assumption set out in the notice of opportunity for hearing is inferentially a logical target of the first basis, l' It should be noted that even accepting Licenseos' LOCV analysis and their HPPT response time assumption the second basis of Contention No. ? would still be admissible. See, \!&O at pp.

22-23, 32-33.

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4 M&O at p. 19.3' Thus, Licensees will not be prejudiced by the admission of this issue to those proceedings since APS received fair notice of the issues to be litigated. These issues have only been further refined pursuant to the parties' discussion of the issuen at the pre-hearing conference and the ASLB's May 9, 1991 written decision. Such refinement does not seek to expand

-Contention No. 1 beyond the issues raised by licensees in their original application or as stated by the Commission in the published notice of opportunity for hearing. Ege, 55 Fed. Reg.

53220 (Dec. 27, 1990).

In accordance with the long standing principles of NRC practice that a petitioner's pleading is to be construed most favorably to the intervenor, particularly when represented by inexperienced _ counsel, and that issues should be decided on their merits not dismissed by Icgal niceties, the ASLB's May 9, 1991 decision should be affirmed. Simply stated, Petitioners were able to plead a set of facts demonstrating that a genuine dispute exists between them and APS regarding the first basis of Contention No. 1. Thus, the ASLB properly admitted the first basis of Contention No. 1.

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1/ -Additionally- the ASLB found-that Licensees' safety evaluation in support of the assumption regarding ilPPT response time was deficient. M&O at p. 32. In fact, the licensees failed to submit any supporting analysis or citations thereto in its highly conclusory one paragraph safety evaluation. See, Application at p. 22 (item 1 of safety analysis).

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l II. PETITIONERS ARE NOT CllALLENGING Ti!E ADEQUACY OF NRC BEGUlATJ Mll..

The Licensees have improperly attempted to cast the second basis of Contention No. 1 as an attack by Petitioners upon the In-Service Testing ("IST") requirements of 10 C.F.R.  %

50.55 (g) (4) . As recognized by the ASLB, Licensees' argument is nothing but a red-herring.6' In fact, the second basis of Contention No. I presumes that Licensees will adhere to the ,

requirements of 10 C.F.R. S 50.55(g) (4) . Notwithstanding this presumption, the concern remains that a safety violation will occur if the setpoint tolerances are expanded as proposed.

There is simply no basis for overturning the ASLB's finding that Petitioners have presented a genuine dispute of fact regarding the second basis of Contention No. 1. Unlike the proposed contention in Florida Power &__1[ght Co (Turkey Point, Units 3 and 4), 31 NRC 509, 534 (1990), the focus of the ,

Petitioners here is upon a challenge to the proposed expansion of setpoint tolerances, and is not an attack on a proposed reduction in test frequency. The thrust of the Mitchell Petitioners' contention assumes testing frequencies will be conducted in i accordance with NRC regulations, but the newly proposed setpoint tolerances will still result in exceeding the safety limits.

i/ At the pre-hearing conference held on April 10, 1991, the ASLB-afforded counsel icr the licensees three separate opportunities to explain the basis for his argument that Contention No. 1 challenges the regulation. Licenseen were

_ unable to demonstrate how the issues about setpoint drift were L

barred by 10 C.F.R. S 2.758. See, Transcript of Pre-licaring Conference (April 10, 1991).

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See, M&O at pp. 22-23, 32-33. By contract, the petitioner in Florida Power & Licht Co., failed to attack the setpoint tolerances and focused solely upon the frequency of surveillance testing. i In fact, Petitioners' contention only challenged Licensecs' l l

attempt to change the tolerance setpoints from 11% to +3%/-1% for PSV's and to I3% for MSV's. It is this proposed change which, if granted, petitioners contend will result in safety limit violations. Licensees' attempt to characterize thi concern as a challenge to 10 C.F.R. 5 50.55(g) (4) is, to say ' it ,

disingenuous.

Moreover, the IST requirements should not affect the ASLB's determination of whether the tolerances will exceed the safety

-limits. Consideration of the setpoint tolerance issue -- i.e.,

whether the proposed changes result in safety violations -- is entirely independent of test frequency regulations.

Sinco petitioners have assumed that APS will test in accordance with the IST requirements, and do not challenge that assumption, there is no basis for concluding that Petitioners seek to challenge 10 C.F.R. S 50.55(g) (4) . The ASLB correctly found that Petitioners stated a valid safety contention even I

though accepting-Licensees' LOCV analysis and the IST I

requirements of $ 50.55(g) (4) . M&O at p. 23. The Commission should not overrule the ASLB by indulging in the Licensees' fantasies that this contention seeks to challenge NRC regulation concerning test frequency.

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CONCLyflOH For the foregoing reasons, Licensees' appeal should be denied in its entirety.

Respectfully submitted, l

h0cm , c 0 .~_; T ~ by David K.I Colapirito/

Kohn, Kohn & Colapinto, P.C.

517 Florida Avenue, 11. W .

Washington, D.C. 20001-1850 (202) 234-4663 Attorney for Petitioners June 7, 1991 8

i i

ri :i

' '" i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DEFORE THE COMMISSION 91 JI 10 P J 31

)

) Non. 5 0-5 2 8-OI A-2, 5 0 - 5 2 9 -O LA- 2 In the Matter of

) and 50-530-OIA-2 ARIZONA PUBLIC SERVICE )

COMPANY, et al. ) (Allowable Setpoint Tolerance)

)

(Palo Verde Nuclear ) ASLB No. 91-633-05-OLA-2 Generating Station, )

Unita 1, 2 and 3) )

)

C_E_RT_EICATE OF SERVICE I hereby certify that on June 7, 1991, copies of "Brief of Petitioners on Appeal of LBP-91-19" in the above-captioned proceeding were cerved, by firnt class mail, postage prepaid, unless otherwise indicated, on the following.

Chairman Kenneth R. Carr U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Packville, Maryland 20852 Commissioner Kenneth C. Rogern U.S. Nuclear Regulatory commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852 .

Commissioner James R. Curtiss U.S. Nuclear Regulatory Comniccion one White Flint North 11555 Rockville Pike Rockville, Maryland 20852 Commissioner Forrest J. Remick U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852 1

U.S. Nuclear Regulatory Commission Atomic Safety and licensing Board Panel Adjudicatory File I U.S. Nuclear Regulatory Commission One White Fline North 11555 Rockvillu Pike Rockville, Maryland 20852 (two copies)

Office of the Secretary U.S. Nuclear Regulatory Commission i, One White Flint North ,

11555 Rockville Pike Rockville, Maryland 20852 Attention: Chief, Docketing and Service Section (Original plus two copies)

Administrative Lt- Judge Ivan W. Smith, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission East West / West Towers Building 4350 East West Highway Bethesda, MD 20814 gf Administrative Judge Jerry R. Kline Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission East West / West Towers Building 4350 dast West Highway Bethesda, MD 20814 Administrative Jude Walter H. Jordan Atomic Safety and licensing Board 881 West Outer Driva Oak Ridge, TN 37830 (Federal Express)

Edwin J. Reis, Esq.

Lisa B. Clark, Esq.

Office of General Counsel U.S. Nuclear Regulatory Commission One White Flint North 31555 Rockville Pike Rockville, Maryland 20852 2

l

Nancy C. Loftin, Esq.  ;

Corporate Secretary and Corporate Counsel Arizona Public Service Company P.O. Box 53999 Mail Station 9068 Phoenix, AZ 850*/2-3999 Alvin H. Gutterman Newman & Holtzinger, P.C.

Suite 1000 1615 L Street, N.W.

Washington, D.C. 20036 549 -

David K. Dolapintc/M Kohn, Kohn :olapinto, P.C.

Washington, D.C. 20001 (202) ?34-4563 June 7, 1991 l

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