ML20081F538
| ML20081F538 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 10/31/1983 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8311030123 | |
| Download: ML20081F538 (9) | |
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3 sA im nocorms*mr October 31, 198f 00KETED l
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USHRC 83 WV -2 #1 :00 UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION {F!"E OF SEcq[c ouC,s:_Tir4G A SEp;,
3 RANCH 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' ANSWER TO OCRE MOTION FOR RECONSIDERATION OF THE LICENSING BOARD'S AUGUST 9, 1983 MEMORANDUM AND ORDER GRANTING
SUMMARY
DISPOSITION OF ISSUE #13 In its August 9, 1983 Memorandum and Order (Summary Disposition of Turbine Missile Issue)
(" August 9 Memorandum and Order"), the Licensing Board granted the NRC Staff's Motion for Summary Dis-p'osition of Issue No. 13, dated May 31, 1983.
By motion of October 14, 1983 ("OCRE Motion"), Intervenor Ohio Citizens for Responsible Energy
("OCRE" ) asks the Licensing Board to reconsider and reverse its grant of summary disposition of Issue No. 13.
OCRE also asks the Licensing Board in its motion to grant a continuance until the General Electric
(" GE " ) probabilistic report on turbine missiles
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has been submitted to the Staff, and "to accord OCRE liberal discovery rights."
OCRE Motion at 3.
OCRE's motion is totally without merit and should be denied.
8311030123 831031 PDRADOCK05000g4]
O o@
letterb/ rom Spencer OCRE' bases its motion on a June 27, 1983 f
Bush to A.
Cappucci;of the Advisory Committee on Reactor Safeguards
("ACRS").-
In relying on the Bush letter, OCRE ignores this Licensing Board's requirement, set forth in its August 9 Memorandum and Order,
~ slip op, at 6-7, that an intervenor opposing a motion for summary disposition which is supported by affidavit must likewise support
.its opposition by affidavit.2/
In its August 9 Memorandum and
~
Order, the Licensing Board made an exception and permitted OCRE to rely on certain nonadmissible evidence, namely, an article by Patrick Heasier.
See id., slip op, at 7.
However, the Licensing' Board stated unequivocally-that "OCRE will be required to conform to the standards 1/
According tol>CRE, the letter was not publicly available until September 19, 1983,- and was not " discovered" by OCRE until October 7, 1983.
See OCRE Motion at 2.
2/
The Licensing Board's requirement is based on the explicit
'Tanguage of 10 C.F.R.
S 2.749 (b), which states in part:
-Affidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify on the matters stated therein.
The presiding officer may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits.
When a motion for summary decision is made and-supported
-as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact.
-(Emphasis added.)' While OCRE's current pleading is styled a motion
. fat reconsideration / Lit is functionally equivalent to another opposition to the summary disposition motion.
w l
~-
1
_ _ _.. -_... ~.. _ _ _ -.
.... _ _. _.. = _ _
4 for filings on summary disposition in the future."
Id., slip op.
l
- at.7 n. 8.E!
I Even~if the Bush-letter were admissible evidence, it would not provide a basis 1 for reconsideration of the Licensing Board's grant of summaryEdisposition;of Issue No. 13.
In its August 9 Memorandum and Order,uslip op. at 3,-the Licensing Board concluded that "intervenors' filings have not demonstrated the existence of a t
L Jgenuine issue of material fact."
In order to provide a basis for reconsideration of the Licensing Board's grant of summary disposition i
i of Issue No.13, OCRE would have to demonstrate the existence of a
. genuine issue of material fact with respect to this Issue.d/
The Bush-letter raises no genuine issue of material fact.
In-his letter,-Dr. Bush comments on the Staff'c generic position 1
j on turbine missiles as reflected in Supplement No. 3 to the Safety
.Evalua' tion Report (April 1983) ("SSER 3") for the Perry Nuclear Power Plant f
3/
That OCRE-allegedly spoke by telephone with Dr. Bush on October 11, 1983 to. verify."that the-June 27 letter still reflects 1
.Dr.-Bush's opinion," OCRE Motion at 2, is hardly sufficient to meet those standards.
l 4/-As the Licensing Board stated in its August 9 Memorandum'and Order, D
slip op. at 8:
[
_The regulations do not require merely. the showing of a ' material issue of fact' or an ' issue of fact'.'
i-
.Theyfrequire_a genuine issue of material fact.
To be genuine,.we believe that the factual record, con-
__sidered in its entirety, must be enough in doubt so that there 1:s a. reason to hold a hearing to resolve
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the issue.
s L
, - ~.
-. -.. -. ~.. -
( " PNPP ". ).
Among otherLthings, the Staff-in SSER 3 established requirements for a turbine maintenance program for PNPP.
The program requirements. include' inservice volumetic (ultrasonic) inspections for stress corrosion cracking at intervals no greater l
l than approximately three years, or every other refueling outage.
Dr.' Bush's letter reflects his desire to see more information before reaching any' definitive conclusions on the NRC Staff's generic position on turbine missiles.
Dr. Bush states that he is primarily interested in information concerning crack growth rates, critical flaw (crack) sizes, and confirmation of reliability and 1
J accuracy of crack sizing techniques.
Dr. Bush anticipates that
- that information will be provided in the upcoming GE probabilistic wr -
- recort.
OCRE claims'that the Bush letter " indicates that the i
r Licensing Board seriously erred _in granting _ summary disposition of I
? Issue #13 without receiving additional evidence, specifically, the General Electric ' report, -int'o the record. "- OCRE Motion at 1.
OCRE simply ignores,. however, the Affidavit of D. P. Timo and l
'L.
H. Johnson in Support ofcNRC Staff's Motion for. Summary Disposition of' Issue No. 13, dated' June. 24,=1983 ("GE Affidavit").5!
The GE l-f-
. 11 34-55, describes GE's current, deterministic Affidavit,_at-nuclear wheel evaluation procedure for calculating recommended
- _5/
The CE Affidavit is attached to Applicants' Answer in' Support of.NRC' Staff Motion-for Summary. Disposition of Issue No. 13, dated June '27, 1983
(" Applicants ' Answer").
i-
4 turbine inspection intervals.
The GE Affidavit addresses in detail each of the principal concerns expressed in the, Bush letter.
Stress corrosion crack growth rates are addressed at 55 39 and 49.
GE's
- method-for determining critical crack depths is discussed at tt 40 through 47.
Finally, GE crack detection and sizing techniques are described in,11 50 through 53; and reliability and accuracy of the
~
techniques are addressed in 1 54.5/
On the basis of its wheel evaluation procedure, GE recommends inspection intervals of three years for Unit 1 and six years for Unit 2.
The actual calculated intervals were longer for both units but were rounded down to correspond to the projected refueling outage schedule.
Id.
The GE calculations and recommendations show that the inspection intervals required by the Staff in SSER 3 are conservative, in the case of Unit 2 by more than a factor of two.
Dr. Bush could not have been aware of the GE Affidavit when he wrote his letter to the ACRS, since Applicants' Answer, to which the affidavit was attache', was submitted that very same day.
Nor would d
one expect a consultant to the ACRS to be involved in litigated issues in operating license hearings.2/
Presumably Dr. Bush was not aware L
6/
The Licensing Board in its August 9 Memorandum and Order, slip op at 4, noted that "[t]he accuracy of the ultrasonic tests has been validated through laboratory tests on samples containing stress corrosion cracks, produced by placing the samples in a caustic
- environment and experimentally inducing stress."
7/
A licensing board may rely on the conclusions of the ACRS only in uncontested cases and in contested cases with respect to uncontroverted issues.
10 C.F.R.'Part 2, App. A SS V (f) (1) and (2).
See Arkansas Power and Light Company (Arkansas Nuclear One Unit 2), ALAB-94, 6 A.E.C.
25, 32 (1973).
_a_
of the GE Affidavit when OCRE contacted him by phone on October 11, 1983, since there is no mention of it in OCRE's motion.
See OCRE Motion at.2-3.
One can only speculate what Dr. Bush's views might have been had he reviewed the information in the GE Affidavit.
' In any case, the burden falls on OCRE to show that that information was inaccurate or inadequate.
OCRE has failed to meet that burden.
In addition, the Licensing Board relied in part on the GE Affidavit in concluding in its August 9 Memorandum and Order, slip
' op. at 3,- that "we are satisfied that the risk of a turbine missile is sufficiently small for us not to consider this to be a serious safety issue."
The Licensing Board also said:
1 In accepting the Bush conclusions, we also are l
influenced by the affidavits filed by applicant.
In
_those affidavits, D. P. Timo and L. H. Johnson present the detailed, empirically-based analysis of turbine missile failures that this Board relied on at the outset l
of this opinion.
We note that this affidavit, which has l
not been controverted, post-dates Bush and derives support from research results that were not available to Bush.
Given its later date, there may well be other data available to its authors that were not available to Bush.
Id., slip op. at 11.
In conclusion, OCRE's motion for reconsideration establishes I
rui genuine issue of material fact to be heard with respect to
' ee.
.M
b turbine missiles at PNPP.
Neither has OCRE provided good cause
. for further delay in resolving this issue.
Applicants respectfully request that OCRE's motion be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
/
fM/AP m
By:
AM JA E
ILBERG, P.C.f 7 M
H A. SWIGER L>
Counsel for Applicants 1800 M Street, N.W.
(
Washington, D.C.
20036 (202) 822-1000 l
l DATED:
October 31, 1983 5
e 1
7-
October 31, 1983 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board i
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)
)
CERTIFICATE OF SERVICE.
This is to certify that copies of the foregoing " Applicants' Answer to OCRE Motion for Reconsideration of the Licensing Board's August _9, 1983 Memorandum and Order Granting Summary Disposition of Issue #17' were served by deposit in the United States Mail, first class, postage prepaid, this 31st day of October, 1983 to all those on the attached Service List.
WhaeJQ. 4sw Michael A. Swiger V
-s
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DATED: -October 31, 1983
UNITED STATES OF AMERICA e
NUCLEAR REGULATORY COMMISSION
.Before the Atomic Safety and Licensine Board In.the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket No's. 50-44'O ILLUMINATING COMPANY
)
50-441
)
(Parry Nuclear Power Plant,
)
Units 1 and 2)
)
I SERVICE LIST Pater B. Bloch, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regul'atory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
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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
-Wachington, 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 j'
Appeal Board i
U.S. Nuclear Regulatory Commission 8275 Munson Avenue l
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 Washington, 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 W2shington, D.C.
20555 O
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