ML20081B153
| ML20081B153 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 10/25/1983 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8310270330 | |
| Download: ML20081B153 (7) | |
Text
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00CKETED USNRC October 25, 1983 13 OCT 26 M1:43 g,
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UNITED STATES OF AMERICA CCCnLT!dG & SERV, -
BRANCH NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS' REPLY TO OCRE RESPONSE TO STAFF AND APPLICANT ANSWERS TO OCRE'S MOTION TO RESUBMIT ITS CONTENTION #2 On October 14, 1983, Intervenor Ohio Citizens for Responpible Energy ("OCRE") filed its Response to Staff and Applicant Answers to OCRE's Motion To Resubmit its Contention #2,("OCRE's Response").
Pursuant to Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-89, 16 N.R.C.
1355 (1982), Applicants hereby respond to the new legal and factual issues raised in OCRE's Response.
None of the new material supports OCRE's motion to resubmit its diesel generator contention.
The principal new factual material on which OCRE relies is an undated Newsday article which further discuases the problems with the Shoreham diesel generators discussed in earlier articles on which OCRE has relied.
In fact, there is little new information in the article.
OCRE cites the article for information concerning 8310270330 831025 PDR ADOCK 05000440 Q
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"a high rate of failures in Delaval engines used in ships."
OCRE's Response at 3.
The article states that "an informal survey found that 25 per cent No35percentofDelavalshipdieselshadcracked cylinder heads."1! Even assuming that the informal survey is repre-sentative, Applicants fail to see the slightest relevance to this proceeding of the diesel generator failure rate among Delaval ship diesels.
OCRE also cites the most recent reportable occurrence con-cerning the Perry Nuclear Power Plant ("PNPP") diesel generators' as new evidence of their alleged unreliability.
That reportable l
occurrence, however, is only a potential defect which was reported because of a break in an engine mounted fuel oil line at Grand Gulf and is not necessarily applicable to PNPP.
See Attachment G to NRC Staff Response to OCRE Motion To Resubmit Rejected Proposed Con-tent 3on 2, dated October 6, 1983
(" Staff Response").
Moreover, as Applicants pointed out in their Answer to Ohio Citizens for Responsible Energy Motion To Resubmit its Contention #2, dated October 3, 1983
(" Applicants' Answer"), at 15, this Licensing Board has made clear that "intervenor cannot fashion an admissible contention merely by filing deficiency reports without further explanation."
Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2), LBP-81-24, 14 N.R.C. 175, 211 (1981).
OCRE's argument that the " number and severity of the deficiencies discovered" from the testing of four out of the 15 i
1/
The article goes on to say that "LILCO attorney Anthony Earley said such problems are ' based on a very small sample' and are much too high."
f
nuclear power plants using Delaval diesel generators / " substantiates 2
OCRE's concerns," OCRE's Response at 3, hardly meets OCRE's burden required to fashi n an admissible contention from deficiency reports.
In addition to its new factual arguments, OCRE also makes a number of new legal arguments concerning the factors of 10 C.F.R, S 2.714 (a) (1) which are to be considered in determining whether a petition for a late-filed contention should be granted.
OCRE's argument with respect to the third factor, the extent to which OCRE may reasonably be expected to assist in developing a sound record ~
on diesel generators, see 10 C.F.R.
S 2,714 (a) (1) (iii), contains a number of inaccurate legal assertions.
First, OCRE attempts to respond to Staff and Applicants'$!
point that OCRE's original diesel generator contention was rejected in part because OCRE demonstrated no special competence on diesel generators.
OCRE states that "OCRE believes that its competence now, not at the start of this proceeding, should be evaluated here."
OCRE's Response at 5.
Applicants do not dispute this assertion.
However, OCRE does not even purport to show that it has any greater competence now than it did originally.
Instead, OCRE falls back on the legal argument that to provide any specific showing of its competence "would violate the precedent set in Houston Lighting and Power (Allens Creek Nuclear Generating 4
2/
See Attachment G to Staff Response.
3/
See Applicants' Answer at 8; Staff Response at 10.
i I
i
! L.
Station, Unit 1), ALAB-590, 11 NRC 542 (1980): that an intervenor need not prove its case at the outset, when submitting contentions."
OCRE's Response a 5.
O RE's reliance on Allens Creek here is misplaced.
Allens Creek involved an interpretation of the " basis and specificity" requirement of 10 C.F.R. S 2.714 (b).
The Appeal Board ruled in that case that an intervenor need only set forth the basis for its contention with " reasonable specificity."
11 N.R.C.
at 548-49.
Long Island Lighting Company (Shoreham Nuclear Power Station'~,-
Unit 1), ALAB-743, Docket No. 50-322-OL-3 (September 29, 1983), on the odner hand, and the other cases cited by the StaffA! which OCRE implicitly questions, involve an interpretation of 10 C.F.R.
S 2.714 (a) (1) (iii).
Allens Creek is not in conflict with this established line of cases.
OCRE can " set out with as much parti-cularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony,"
Shoreham, supra, slip op. at 22, without setting forth the factual bases of its case.
Finally, OCRE notes that the Appeal Board in other licensing proceedings has held that intervenors have played a positive role.
OCRE's Motion at 6.
This general observation does not help OCRE meet its burden of proving that it has the special expertise to l
litigate a contention on the reliability of the PNPP diesel gener.ators and contribute to the development of a sound record in this particular proceeding.
l 4/
See Staff Response at 9.
For all of the above reasons, Applicants respectfully request that OCRE's Motion To Resubmit its Contention #2 be a.
denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE j
By:
9 Mich e/Si berg, P.C. (s/
Jay 7
/
l
. Swiger Counsel for Applicants 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 DATED:
October 25, 1983.-
October 25, 1983 z.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, _E _T A _L.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Reply to OCRE Response to Staff and Applicant Answers to OCRE's Motion to Resubmit its Contention #2" were served by deposit in the United States Mail, first class, postage prepaid, this 25th day of October, 19 83 to all those on the attached Service List.
% [c40Ad k*
I Michael A. Swiger DATED':
October 25, 1983
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket No's. 50-440 ILLUMINATING COMPANY
)
50-441
)
(Parry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST Pater B.
Bloch, Chairman Atomic Safety and Licensing..
Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and Service Section Dr. Jerry R.
Kline Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 2
Washington, D.C.
20555 Washington, D.C.
20555 Colleen P. Woodhead_, Esquire Mr. Glenn O. Bright Office of the Executive Legal Atomic Safety and Licensing Board Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Christine N.
Kohl, Chairman Atomic Safety and Licensing Ms. Sue Hiatt OCRE Interim Representative Appeal Board U.S. Nuclear Regulatory Commission 8275 Munson Avenue Washington, D.C.
20555 Mentor, Ohio 44060 Terry Lodge, Esquire Dr. John H. Buck 618 N. Michigan Street, Suite 105 Atomic Safety and Licensing Toledo, Ohio 43624 Appeal Board U.S. Nuclear Regulatory Commission Donald T. Ezzone, Esquire Wnshington, D.C.
20555 Assistant Prosecuting Attorney Lake County Administration Center Gary J.
Edles, Esquire 105 Center Street Atomic Safety and Licensing Painesville, Ohio 44077 Appeal Board U.S. Nuclear Regulatory Commission John G. Cardinal, Esquire Washington, D.C.
20555 Prosecuting Attorney Ashtabula County Courthouse Atomic Safety and Licensing Jefferson, Ohio 44047 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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