ML20082T449
| ML20082T449 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/12/1983 |
| From: | Churchill B METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 83-491-04-OLA, 83-491-4-OLA, ISSUANCES-OLA, NUDOCS 8312160022 | |
| Download: ML20082T449 (16) | |
Text
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00CKETED USNRC December.12, 1983
'83 05: 15 No :28 INJf..C[F T' UNITED STATES OF AMERICA
' /[
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
METROPOLITAN EDISON COMPANY, ET AL.)
Docket No. 50-289-OLA
)
ASLBP 83-491-04-OLA-(Three Mile Island Nuclear
)
(Steam Generator Repair)
Station, Unit No. 1)
)
LICENSEE'S MOTION FOR RECONSIDERATION OF NOVEMBER 29, 1983 MEMORANDUM AND ORDER Licensee Metropolitan Edison Company, et.al., hereby moves the' Atomic Safety and Licensing Board to reconsid,er,certain-portions of its November 29, 1983 Memorandum and Order-(Ruling on Contentions) pertainin'g to Three Mile Island Alert, Inc.'s
("TMIA") Contentions 1(b), 1(c),-1(d), and 2(c).
I.
BACKGROUND on May 9, 1983, Licensee submitted a request to amend-the Technical Specifications contained in the operating license for Unit _1 of the Three Mile Island Nuclear Station.
The current Technical Specifications provide that' steam generator tubes-8312160022 831212 PDR ADOCK 05000289 Q
which exhibit degradation of 40% or more of the nominal tube wall thickness must be taken out of service by plugging.
The amendment request seeks authorization to allow operation of the plant with such tubes repaired by a kinetic expansion process as an alternative to removing them from service by plugging.
The Board's November 29, 1983 Memorandum and Order admit-ted a number of the contentions advanced by TMIA and Joint In-tervenors, the two intervening parties in this proceeding.
For the reasons discussed below, Licensee requests th'e Board to re-consider the admission of TMIA's Contentions 1.b, 1.c, and 2.c, and a portion of Contention 1.d.
II.
DISCUSSION A.
Contention 1.b In Contention 1.b, TMIA alleges that, "because of the enormous number of tubes in both steam generators that have un-dergone (the kinetic expansion) repair process," a simultaneous tube rupture scenario not required as a design basis accident consideration by the NRC must nevertheless be considered for this facility.
Licensee seeks reconsideration of the Board's admission of Contention 1.b on the grounds that it is beyond the scope of this operating license amendment proceeding.
A Licensing Board's jurisdiction is established by the Commission's rules and regulations (10 C.F.R. Part 2), and by the Commission's Notice of Hearing.
Wisconsin Electric Power :
l
Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 N.R.C.
slip op.,
at 5 (September 7, 1983); Commonwealth Edison Company (Carroll County Site), ALAB-601, 12 N.R.C.
18, 24 (1980); Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-235, 8 A.E.C. 645, 646 (1974).
It can neither exchange nor contract the jurisdiction conferred upon it by the Commission.
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 N.R.C.
167, 171 (1976).
When determining the jurisdiction of a Licensing Board, the Atomic Safety and Licensing Appeal Board has consistently stated that the Commission's Notice of Hearing supplies the scope of the Licensing Board's jurisdiction.
Portland General Electric Company (Trojan Nuclear Plant),
ALAB-534, 9 N.R.C.
287, 289 n.
6 (1979); Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-381, 5 N.R.C.
582, 592 (1977).
Thus, it is well settled that "in determining whether it is empowered to entertain a particular issue, a licensing board must respect the terms of the notice of hearing published by the Commission for the proceeding in question."
Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ALAB-619, 12 N.R.C. 558, 565 (1981).
Therefore, issues presented that do not pertain to matters within the scope of the Licensing Board's jurisdiction as defined by the Commission's Notice of Hearing must be dis-missed, as the Licensing Board is without authority to -
1 I
adjudicate those. issues.
Commonwealth Edison Company (Carroll County Site), ALAB-601, 12 N.R.C.
18, 24 (1980).
Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 N.R.C.
slip op.,
at 5 (September 7, 1983).
The sole subject matter of this proceeding is the Licen-see's request for authorization of the kinetic expansion repair process.
It is not a proceeding to litigate de novo the operation of a nuclear plant with steam generators, but rather a proceeding to consider the adequacy of the requested repair process.
This was clearly specified by the Commission in its Notice of Hearing, 48 Fed. Reg. 36707 (August 8, 1983), where it stated that:
The amendment requested would revise the Technical Specifications to recognize steam gen-erator tube repair techniques, other than plug-ging, provided such techniques are approved by the Commission.
The licensee's application, dated May 9, 1983, further requested that the Commission approve, within the provisions of the proposed Technical Specification revision, the kinetic expansion steam generator tube repair technique used at the facility, thus permitting subsequent operation of the facility with the as-repaired steam generators.
The Commission further noted that all contentions were to.txt limited to matters within the scope,of the. amendment under con-sideration.
Id.,
at 36708.
Thus, _ absent a showing of a causal
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nexus between the allegations set forth in Contention 1.b and the subject matter of the proceeding, the contention must be
dismissed as irrelevant and beyond the scope of this proceeding.
TMIA has made no showing of a causal relationship between the repair process and tube rupture.
In fact, an increased likelihood of tube rupture caused by the kinetic expansion process has not been suggested (except by implication in Con-tention 1.b), and TMIA has not even addressed the questions of how, mechanistically, it would be possible to postulate such a relationship.
Thus, the fact that most of the tubes have un-dergone the kinetic expansion process is of no relevance in the absence of a showing that the repair will somehow contribute to the potential for tube rupture.
There being no showing of a causal nexus between the subject matter of the amendment re-quest and the tube ruptures and their consequences alleged in Contention 1.b, the contention is beyond the scope of this pro-ceeding and should be dismissed.
Under a situation very closely akin to this one, the Appeal Board recently affirmed the' dismissal of a contention similar to Contention 1.b for lack of relevancy and ju-risdiction in Wisconsin Electric Power Company (Point Beach Nu-clear Plant,' Units 1 and 2), ALAB-739, 18 N.R.C.
slip op.,
at 4-7 (September 7, 1983).
That proceeding involved a request j
for a license amendment to allow the licensee to repair its de-graded steam generator tubes by a process known as sleeving.
The intervenor there contended that degradation of as few as.
one to ten steam generator tubes in a pressurized water reactor would induce essentially uncoolable conditions during a loss-of-coolant accident (LOCA).
The Appeal Board noted that
" absent a showing that sleeving would lead to tube failures, the issue of the consequences of steam generator tube failure was not relevant to this amendment proceeding and thus the con-tention should be dismissed."
Id.,
at 5.
Point Beach is directly on point.
There, as here, most of the steam generator tubes were to be repaired.
There, as here, the intervenor alleged consequences of tube rupture, and there, as here, the intervenors made no showing of a relationship between the subject repair process and the likelihood of tube rupture and its alleged consequences.
Hence, TMIA's' Contention 1(b) should be dismissed in accordance with the aforementioned l
legal principles and decisions.
B.
Contention 1.c Contention 1.c relates entirely to the plugging of steam generator tubes.
It challenges the type of plug used, the number and choice of tubes to be plugged, and the effect of plugged tubes on the plant's ability to respond to transients and accidents.
Licensee requests reconsideration of the admis-
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sion of Contention 1.c on the grounds that neither the plugging of steam generator tubes, per se, nor any of the aspects of plugging cited in that contention, bears any relationship to,
the requested license amendment, and is therefore beyond the scope of this hearing.
The plugging of steam generator tubes, including the criteria for determining which tubes are to be plugged, is cur-rently authorized by the Unit 1 Technical Specifications.
Li-censee does not seek a change to the plugging authority.
To the contrary, as stated in the Commission's Notice of Hearing, the subject matter of this proceeding is to consider repair techniques "other than plugging".
48 Fed. Reg. 36707 (August 12, 1983).
There is no conceivable relationship between the plugging allegations made in Contention 1.c and the kinetic expansion repair process.
By challenging the type of plug used and the number and choice of tubes to be plugged, the contention is taking issue with the criteria for plugging found in the Technical Specifications.
Those criteria were not the subject of the amendment request, bear no relationship to the kinetic expansion repair authorization requested, and, indeed., are not being changed.
Similarly, the contention raises the issue (without basis) of whether plugged tubes will interfere with "the plant's ability to respond to transients and accidents."
Again, there is no nexus shown between that question and the repair of tubes by the kinetic expansion process.
The Point Beach steam generator tube repair proceeding discussed in Section A above, Wisconsin Electric Power Company.
(Point Beach Nuclear Plant, Units 1 and 2), LBP-82-88, 16 N.R.C. 1335 (1982), aff'd, Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 N.R.C.
slip op. (September 7, 1983), presents an analogous deci-sion regarding the admissability of a contention involving plugging concerns.
That proceeding was instituted to determine whether the operating license should be amended to permit repair of steam generator tubes by sleeving as an alternative to plugging.
The intervenor contended that pre-existing explo-sive plugs could rock loose during a LOCA, and would exaggerate tube-failure incidents.
Id.,
at 1342.
The Licensing Board there dismissed the intervenor's plugging contention because it did not relate to the safety of tube sleeving and was therefore irrelevant in the disposition of that license amendment pro-ceeding.
The Board stated that the test of relevance is "'how the sleeving program would cause problems' or whether it reflects ' unfavorably on the safety of sleeving.'"
Id.,
at 1342 (emphasis added) quoting Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-33, 15 N.R.C.
887 (1982) at 890 (citing Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2)), LBP-81-55, 14 N.R.C.
1017 (1981) at 1026 (citing Tr. 598).
It is conceivable that an issue might have been raised by TMIA which related some aspect of plugging to the requested au-thority to repair.
Indeed, the Staff,'s SER, at page 22,,
=.
evaluates the effect of the repair process on the existing plugs.
But TMIA did not raise that issue, and there is no rea-sonable reading of Contention 1.c that could even remotely suggest an intent to raise that issue.1/
C.
Contentions 1.d and 2.c (Partial)
TMIA's Contention 1.d alleges that the," Report of Third Party Review of Three Mile Island, Unit 1, Steam Generator Report" (TPR) and the Staff's Safety Evaluation Report (SER) cannot be relied upon, inter alia, "because of the reports' in-herent inconsistencies."
TMIA's Contention 2.c contains a similar allegation.
Not only has TMIA provided no basis for these allegations, but the contentions contain nothing to even suggest what the " inconsistencies" are.
The principles set out in ALAB-216,2/ cited by the Licens-ing Board in its November 29, 1983 Memorandum and Order, state that two of the purposes of the basis-for-contention require-ment of 10 C.F.R.
5 2.714 are:
1 2.
to help assure that other parties.
are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose; [and]
1/
TMIA attempted to belatedly raise that issue during the prehearing conference, Tr. 58, alleging that the " unique process" the tubes have undergone might make them less likely to retain the plugs.
But TMIA provided no basis for its specu-lation, and it certainly does not change the fact that the con-tention itself does not raise that question.
2/
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C.
13, 20-21.(1974).
5.
to assure that there has been sufficient foundation assigned for the contentions to warrant further explo-ration.
Memorandum and Order, at 2.
(footnote omitted).
Clearly, Licensee has no notice whatsoever of what it will have to defend against or oppose, and in the absence of an ex-planation of what the alleged inconsistencies are, there is no way of knowing whether sufficient foundation exists to warrant further exploration.
Thus, the inclusion of the phrase "be-cause of the reports' inherent inconsistencies" in TMIA's Con-tentions 1.d and 2.c is proscribed by both Commission case law and the principles of fundamental fairness.
Licensee therefore requests that the ph' rase be deleted from both contentions.
E D.
Contention 2.c In addition to deletion of a phrase from Contention 2.c as discussed in Section C above, Licensee also requests reconsi-deration of the remainder of Contention'2.c.
The remainder of Contention 2.c alleges,-in essence, that the " evaluation of.the causitive agent, clean up, or procedures-to prevent contaminant reintroduction" in the TPR and the SER is not credible:
1) because the basic assumptions and conclusions therein rest improp-erly on axial symetric stress analysis which would not be ap-plicable to all cracks, 2) because of the failure to analyze crack resistance on the basis of toughness as opposed to hardness which has no relation to crack resistance; and l
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3) because of the failure to differ-entiate in their analysis between the effects of thermal stress on small versus large cracks.
The wording of Contention 2.c is very similar to that of Con-tention 1.d, and the Board admitted Contention 2.c "for the same reasons as stated in [its} discussion of Contention 1, subpart d."
Memorandum and Order, at 17.
However, the basic
. subject matter of the two contentions is not the same, and the Board's rationale for admitting Contention 1.d was that the statements of TMIA,at the special prehearing conference " mar-ginally provide reasonably specific bases to support the main contention. discounting credibility of the documents in,their evaluation of the kinetic expansion repair technique I
Id.,
at 11 (emphasis added).
In Contention 2.c, the allega-tions'of deficiencies in the analysis of stress and crack re-sistance bear no relationship to conclusions regarding the l
causitive agent, clean up, or procedures to prevent contaminant reintroduction.
No basis for, or explanation of, such a rela-tionship was offered'by TMIA in either its contention or at the prehearing conference.
Tr. 96-97.
In this case, the total ab-sence of basis renders the contention incomprehensible, provides Licensee with no adequate notice to prepare its-case, and provides no means of determining whether the issue warrants i
further exploration, as required by Peach Bottom, supra.
Ac-cordingly, Licensee requests that.the Board reconsider its
- decision to admit Contention 2.c for litigation in this proceeding.
III.
CONCLUSION Accordingly, for the reasons discussed above, Licensee re-spectfully requests the Board to reconsider its admission of:
(a)
Contention 1.b on the grounds that it is beyond the scope of this proceeding because no nexus has been shown between the alleged consequences of tube rupture and the kinet-ic expansion repair process; (b)
Contention 1.c on the grounds that it is beyond
, the scope of this proceeding because no nexus has been shown between the plugging allegations therein and the kinetic expan-sion repair process; (c)
The phrase "because of the reports' inherent inconsistencies" as it appears in Contentions 1.d_and 2.c on the grounds that, by its lack of explanation and basis, it is too vague to define an issue capable of being litigated; and (d)
The remainder of contention 2.c on the grounds that it is inconsistent on its face, there being no relation-ship between the subject of the basic allegations (causative u
'I
agent and contaminant reintroduction) and the reasons stated (analysis of stress and crack resistance).
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
/
l By:
-/
BMeW. CEuichill, P. C.'
Counsel for Licensee 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 Dated:
December 12, 1983 3
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00LXETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'83 DEC 15 A10:28 Before the Atomic Safety and Licensing Board
... > C E O F. _n u,:t.1Av 00ChETING & SERVd f BRANCH In the Matter of
)
)
METROPOLITAN EDISON CO., ET AL. )
Docket No. 50-289-OLA
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)
ASLBP 83-491-04-OLA (Three Mile Island Nuclear
)
(Steam Generator Repair)
Station, Unit No. 1)
)
NOTICE OF APPEARANCE The undersigned, being an attorney at law in good standing admitted to practice before the Courts of the District of Columbia, hereby enters his appearance on behalf of Metropolitan Edison Company, et al., in proceedings re-lated to the above-captioned matters.
Respectfully submitted, i
l s /
I-2,6, d D /
BMW. Mnctr6 hill, P.C.
SHAW, PITTMAN, POTTS-& TROWBRIDGE 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 Dated:
December 12,1983 0
j UNITED STATES OF AMERICA Iri, CLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
METROPOLITAN EDISON COMPANY, ET AL. )
Docket No. 50-289-OLA
)
ASLBP 83-491-04-OLA (Three Mile Island Nuclear.
)
(Steam Generator Repair)
Station, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Motion for Reconsideration of November 29, 1983 Memorandum and Order" and the " Notice of Appearance" of Bruce W. Churchill were served this 12th day of December, 1983 by deposit in the U.S.
mail, first class, postage prepaid to those on the attached Service List.
[\\
I
('s
. AX Bruce W. CMurchill, P.C.'
Dated:
December 12, 1983
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFE"Y AND LICENSING SOARD In the Matter of
)
)
METROPOLITAN EDISON CO., _et _al.
)
Docket No. 50-289-OLA
)
(Three Milia Island Nuclear
)
ASLBP 83-491-04-OLA Station, Unit No. 1)
)
(Steam Generator Repair)
SERVICE LIST Sheldon J. Wolfe, Chairman Joanne Doroshow, Esq. '
Atomic Safety and Licensing Board Louise Bradford
^
U.S. Nuclear Regulatory Commission Three Mile Island Alert, Inc.
Washington, D.C.
20555 315 Peffer Street Harrisburg, Pennsylvania 17102 Dr. David L. Hetrick
. Profassor of Nuclear Engineering Jane Lee University of Arizona 183 Valley Road Tucson, Arizona 85271 Etters, Pennsylvania 17319 Dr. James C. Lamb, III Norman Aamodt 313 Woodhaven Road R. D.
5, Box 428 Chapel Hill, North Carolina 27514 Coatesville, Pennsylvania 19320 Richard J.
Rawson, Esq.
Mary E. Wagner, Esq.
Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section (3)
Office of the Secretary U.S. Nuclear Regulatory _ Commission i
Washington, D.C.
20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing' Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 I
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