ML20078B519

Response Opposing Governor Deukmejian & Joint Intervenors 830908 Particularization of Contentions 3 & 4 Submitted Per Aslab 830826 Order.Contentions Are Unaccompanied by Facts Upon Which Claims Based.Certificate of Svc Encl

ML20078B519
Person / Time
Site:	Diablo Canyon
Issue date:	09/22/1983
From:	Crane P PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8309270112
Download: ML20078B519 (11)

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DOCMETED USNRC 1 UNITED STATES OF AMERICA gj gj 7g gj.jj 2 NUCLEAR REGULATORY COMMISSION 0FFICE OF SECFEIA""

3 comie:G p, stevi; ,

33M:061 4 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 5

6 7

8 In the Matter of )

) Docket Nos. 50-275 9 PACIFIC GAS AND ELECTRIC COMPANY ) 50-323

) (Recpened Hearing --

10 (Diablo Canyon Nuclear Power ) Design Quality Plant, Units No. 1 and 2) ) Assurance) 11 )

s 12 13 14 15 RESPONSE OF PACIFIC GAS AND ELECTRIC COMPANY TO PARTICULARIZATION OF CONTENTIONS 3 AND 4 BY 16 GOVERNOR DEUKMEJIAN AND JOINT INTERVENORS 17 18 In its Order of August 26, 1983 (" Order") the Appeal Board 19 conditioned admission of Contentions 3 and 4 on the requirement 20 that they be "further particularized" in accordance with the 21 Appeal Board's specific instructions "to ensure that the litigation 22 is clearly focused." Order at 2. Further, the preamble to the 23 contentions specifies that the applicable licensing criteria are 24 not subject to challenge in this reopened proceeding except to the 25 extent that the criteria may have been modified in the verification 26 program. Order at 3, 4. On *.he basis of Governor Deukmejian's 8309270112 830922 15 PDR ADOCK 05000275 G PDR

1 and the Joint Intervenors' joint response of September 8, 1983 to 2 the Order, PGandE respectfully submits that Contentions 3(a) and 3 (b), part of 3(c), 3 (f)- (n) , and 4 (m) must be rejected from 4 consideration in these reopened proceedings as a result of the 5 intervenors' failure to comply with the Appeal Board's requirements.

6 The reasons for their disqualification are set out below.

7 Contention 3(a). - This contention must be rejected both for 8 failure to provide the requisite specification and because it 9 constitutes a challenge to the licensing criteria.

10 The Appeal Board provided specific instructions in its Order 11 for particularizing Contentions 3 and 4, stating that the inter-12 venors must " particularize the critical facts upon which they base 13 their claim." Order at 2. The Appeal Board even used Contention 14 3(a) as an example, stating that the intervenors "must list the 15 structures and materials for which the substitution for code 16 specified minima was made and why they claim this was improper" 17 (emphasis added). Id. Using Contention 3(f) as a further 18 example, the Appeal Board stated that the intervenors would have 19 to specify "the critical facts indicating how t..e modeling [of 20 soil properties] was improper." Order at 2, 3.

21 The intervenors clearly have not provided the requisite 22 specificity for Contention 3(a). All they have done is added the 23 statement that mean measured performance of structures and 24 materials was accepted by the ITP "in its seismic analysis for the 25 Hosgri event" of every building within the scope of the 26 verification program. They did not specify the materials involved,

1 1 which particular analyses were involved, or why they claim the 2 use of mean measured performance was improper, all as specifically 3 mandated by the Appeal Board. In short, they have provided 4 virtually no more meaningful information than was provided in the 5 original contention; they certainly have not provided sufficient 6 it. formation to meet the Appeal Board's goal of ensuring that "the 7 litigation is clearly focused." Order at 2.

8 Contention 3(a) is disqualified for the additional reason 9 that it constitutes a challenge to the seismic criteria specified 10 for the Hosgri event. In Section 4.1, Item 3 of the Hosgri Report, 11 the use of " actual material properties" is specified. In 12 Section 4.1.2 at pages 4-4 and 4-5, the Hosgri Report specifies 13 that the actual material properties determined by test results 14 were to be used for both concrete and steel.

15 Thus, for the two reasons stated above, Contention 3(a) m_st 16 be excluded from this proceeding.

17 Contention 3(b). Similarly, the requisite specificity was 18 not provided for this contention. The intervenors have provided 19 no identification whatsoever of the " stress and load factors for 20 steel" which they seem to be implying were not within code values.

I 21 At this stage of the proceeding, the intervenors are not allowed 22 to litigate an unbased claim, implicit or explicit, to determine 23 whether or not there are bases for alleging that criteria have 24 ///

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J 1 not been met.1/ If they believe criteria have not been met, 2 they must make a specific allegation of where they believe the 3 criteria are not satisfied, and they must " particularize the 4 critical facts upon which they base their claim." Order at 2.

5 The intervenors have done neither, and the contention must fail.

6 Contention 3(c). The last sentence of this contention, 7 dealing with the damping values used for the seismic analysis of 8 the auxiliary building, must fail for lack of particularization.

9 In that sentence the allegation is that the damping values were 10 not specified. The intervenors apparently do not know whether 11 the damping values were consistent with applicable criteria, and 12 thus cannot specify whether or not criteria have been met. The 13 purpose of a hearing is not to find out whether an intervenor has 14 a basis for an allegation. Extensive discovery activities have 15 been pursued in this proceeding, and that is the appropriate means 16 for obtaining information.

17 Contention 3 (f) . This contention was used as an example in 18 the Order.which stated that the intervenors "must specify the 19 critical facts indicating how the modeling [of soil properties 20 for the containment and auxiliary buildings] was improper."

21

-1/ The Appeal Board's particularization requirements in this 22 regard are both sound and obviously necessary. To hold otherwise would enable an intervenor to merely surmise, or 23 allege, without basis that all criteria were unsatisfied, and then demand a hearing to evaluate the entire plant.

24 That is inconsistent with the regulations and would produce hearings virtually impossible to conduct.

26

1 Order at 2, 3. In Contention 3 (f) (i) , the intervenors allege 2 that boundary motion inputs were improperly used, but they do not 3 identify the inputs alleged to be improper, nor do they indicate 4 how they were improperly used.

5 In Contention 3 (f) (ii) , the intervenors allege that use of a 6 7% damping value for rock is "unconservative." There is no NRC 7 requirement that values be either conservative or unconservative, 8 only that values must satisfy applicable criteria. If the 9 intervenors allege criteria were not met, they must identify the 10 criteria and explain how they were not satisfied, or whjr the 11 values used were not appropriate, i.e., they must " particularize 12 the critical facts upon which they base their claim."

13 Similarly, for Contention 3 (f) (iii) , the intervenors identify 14 no criteria requiring an analysis of uplifting of the foundation 15 mat, nor do they provide an explanation of why it was improper to 16 omit such an analysis. And in Contention 3 (f) (iv) they identify 17 no criteria to indicate that the use or non-use of soil properties 18 in the modeling was improper.

19 Contention 3 (f) (v) is similarly deficient in that the inter-20 venors do not explain how the soil springs modeling failed to 21 satisfy criteria. Indeed, they neither identify the applicable 22 criteria nor identify the other " soil structure interaction 23 phenomena that could be expected."

24 For all of the above reasons, Contention 3(f) fails to 25 provide the required specificity and must be rejected in its 26 entirety.

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1 Contention 3(g). This contention fails to satisfy the 2 Appeal Board's particularization requirements in that it does not 3 identify the criteria for modeling of the crane in the turbine 4 building and fails to explain why it is insufficient to model the 5 crane in the parked and unloaded condition.

6 Contention 3(h). The intervenors here assert only that 7 modeling of torsion factors is not shown to be " conservative "

8 As discussed in the response to Contention 3 (f) (ii) above, there 9 is no standard of "conservativeness." The intervenors have not 10 identified how criteria are alleged not to have been met, or why 11 the modeling is otherwise inappropriate. They certainly have 12 provided no " critical facts upon which they base their claim" that 13 the modeling is unconservative.

14 Contention 3(i). Again, the intervenors have provided no 15 explanation of how criteria have not been met or why it is 16 inappropriate to ignore sloshing effects or hydrodynamic pressures 17 in the modeling for the intake structure.

18 Contention 3(j). In this contention, the intervenors state l 19 simply that an aspect of the modeling of the intake structure 20 crane was done "without justification." Nowhere is there a 21 requirement that each step of a modeling process be accompanied by l

22 " justification" so that intervenors can determine whether it is 23 proper. The modeling is presented, and if the intervenors allege 24 that any aspect of it is improper or outside of applicable 25 criteria, they must so allege and " particularize the critical facts i

i 26 upon which they base their claim." The intervenors have provided no such facts.

f l

1 Contention 3(k). In this contention, the intervenors 2 complain that certain information was not provided, including 3 explanations and justifications for the use of ductility estimates 4 and characteristics. Just because the intervenors (apparently) 5 do not have all of the information they would like with respect 6 to certain modeling done by the ITP does not mean the modeling 7 was incorrect. As discussed in the response to Contentions 3(b) 8 and (c) supra, a hearing is not convened for the purpose of 9 enabling intervenors to determine in the first instance whether 10 or not there is sufficient basis for a specific allegation. They 11 must make a specific allegation and provide the critical facts 12 upon which they base their claim. Here they have done neither, 13 and the contention must therefore be disqualified.

14 Contention 3 (1) . As was the case for Contentions 3(b), 3 (c) ,

15 and 3 (k) , the intervenors are just guessing, stating that they 16 lack certain data and that "it is not clear" whether criteria have 17 been correctly applied. They have not identified criteria, 18 particularized a specific allegation that criteria were not met, 19 or provided the critical facts upon which they base their claim.

20 Further, they have not clarified their intended meaning as 21 directed to do in the Order (Footnote 3, p. 3).

22 Contention 3(m). As was the case for Contentions 3 (b) , 3(c),

23 3(k), and 3 (1) , intervenors allege only that "it is not clear 24 whether criteria were correctly applied." No criteria are 25 identified, no specific allegation or explanation of non-compliance i 26 is made, and no critical facts upon which they base their claim are provided.

l

1 Contention 3(n). This contention alleges that the stress 2 values for concrete in shear walls were " improper", but stops 3 short of alleging that they were not in compliance with applicable 4 criteria. The contention alleges only that the stress values 5 were (1) "large", (2) "less conservative" than provided in 6 ACI 318-77, and (3) "may cause wide cracks", all without explana-7 tion or supporting facts, in direct contravention of the 8 requirements of the order. That the intervenors consider the 9 stress values "large" does not carry the day. To say that they 10 are "less conservative" than what is provided in ACI 318-77 is not 11 sufficient because the intervenors do not allege that the code 12 requirements have not been met, nor do they provide any facts or 13 explanation in support of such a claim. And finally, their 14 allegation that the stress values used "may cause wide cracks" is 15 totally devoid of any supporting facts whatsoever. Contention 3 (n) 16 clearly falls far short of the particularization required by the 17 Order.

18 Contention 4 (m) . The intervenors are here alleging that the 19 IDVP " accepted deviations" from the "QA program commitments in l 20 FSAR Section 17.1" in that certain " documented evidence is 21 inadequate" to demonstrate the proper design and installation of 22 rupture restraints. Section 17.1 of the FSAR discusses only QA 23 programs and contains no commitments or requirements pertaining to 24 rupture restraints. PGandE cannot respond to an allegation that 25 there have been deviations from criteria if the intervenors do not 26 clearly identify the applicable criteria, and do not meaningfully 1

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1 1 explain how the criteria have not been met. A vague, unsupported 2 allegation that documented evidence is inadequate, without even

< 3 any explanation of how it is inadequate, does not begin to satisfy 4 the requirements for particularization.

5 In short, Contentions 3 (a) and (b) , part of 3 (c) , 3 (f)-(n) ,

6 and 4 (m) fail to comply with the Appeal Board's Order, primarily 7 because they are unaccompanied by any facts upon which the claims 8 are based. For this and the other reasons discussed above, 9 PGandE respectfully submits that those contentions should be dis-10 allowed as issues to be litigated in this proceeding.

11 Respectfully submitted, 12 ROBERT OHLBACH PHILIP A. CRANE, JR.

13 RICHARD F. LOCKE Pacific Gas and Electric Company 14 P. O. Box 7442 San Francisco CA 94120 15 (415) 781-4211 16 ARTHUR C. GEHR Snell & Wilmer 17 3100 Valley Bank Center Phoenix AZ 85073 18 (602) 257-7288 19 BRUCE NORTON Norton, Burke, Berry & French, P.C.

20 P. O. Box 10569 Phoenix AZ 85064 21 (602) 955-2446 22 Attorneys for Pacific Gas and Electric Company 23 24 2

.5 Philip A. Crane, Jr.

26 DATED: September 22, 1983.

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.- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In t e Matter of ) 00LKETED  !

) USNRC l PACIFIC' GAS AND ELECTRIC COMPANY ) Docket No. 50-275 l

) Docket No. 50-J 3 DiablE Canyon Nuclear Power Plant, ) w SP 26 R2:11 Units 1 and 2 )

) 0FFICE OF SECRt tan - !

00CMEilN'i & SERVIU.  ;

CERTIFICATE OF SERVICE bhANCH The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United ,

i States mail, properly stamped and addressed:

Judge John F. Wolf Mrs. Sandra A. Silver Chairman ,

1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Washington DC 20555 Mr. Gordon Silver 1760 Alisal Street Judge Glenn O., Bright San Luis Obispo CA 93401 Atomic Safety and Licensing Board US Nuclear Regulatory Commission John Phillips, Esq.

Washington DC '20555 Joel Reynolds, Esq.

i Center for Law in the Public Interest Judge Jerry R. Kline 10951 W. Pico Blvd. - Suite 300 Atomic Safety and Licensing Board Los Angeles CA 90064 US Nuclear Regulatory Commission Washington DC 20555 David F. Fleischaker, Esq.

P. O. Box 1178 Mrs. Elizabeth Apfelberg Oklahoma City OK 73101 c/o Betsy Umhoffer 1493 Southwood Arthur C. Gehr, Esq.

San Luis Obispo CA 93401 Snell & Wilmer 3100 Valley Bank Center l

Jcnice E. Kerr, Esq. Phoenix AZ 85073 Public Utilities Commission State of California Bruce Norton, Esq.

5246 State Building Norton, Burke, Berry & French, P.C.

350 McAllister Street P. O. Box 10569 Scn Francisco CA 94102 Phoenix AZ 85064 l

Mrs. Raye Fleming Lnairman 1920 Mattie Road Atomic Safety and Licensing Shell Beach CA 93449 Board Panel l

l US Nuclear Regulatory Commission Mr. Frederick Eissler Washington' DC 20555 Scenic Shoreline Preservation C9nference, Inc.

4623 More Mesa Drive Scnta Barbara CA 93105

f Chairman Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Washington DC 20555 US Nuclear Regulatory Commission Washington DC 20555 Sscretary US Nuclear Regulatory Commission Judge W. Reed Johnson Washington DC 20555 Atomic Safety and Licensing Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555 Lawrence J. Chandler, Esq. Judge John H. Buck Henry J. McGurren Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director US Nuclear Regulatory Commission Washington DC 20555 Washington DC 20555 Michael J. Strumwasser, Esq.

f Mr. T.ichard B. Hubbard Susan L. Durbin, Esq.

MHB Technical Associates Peter H. Kaufman, Esq.

1723 Hamilton Avenue Suite K Suite 800

San Jose CA 95125 3580 Wilshire Blvd.

I Los Angeles CA 90010 Mr. Carl Neiberger Telegram Tribune Maurice Axelrad, Esq.

P. O. Box 112 Lowenstein, Newman, Reis, and San Luis Obispo CA 93402 Axelrad, P.C.

i 1025 Connecticut Ave NW Washington DC 20036 Date: September 22, 1983. '

Philip A. Crane, Jr.

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