ML20086G527

Motion to Dismiss TMI Alert,Inc (Tmia) Contentions 1.a,1.b, 1.c & 2.b.1 Re post-repair & Plant Performance Testing & Use of Sulfur Compounds in Sys.Tmia Failed to Provide Bases for Contentions

ML20086G527
Person / Time
Site:	Three Mile Island
Issue date:	01/09/1984
From:	Churchill B METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20086G531	List: ML20086G527 ML20086G543 ML20086G560
References
ISSUANCES-OLA, NUDOCS 8401120264
Download: ML20086G527 (11)

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DOCKETED USHRC January 9,_1984 c4 d1'111 A?0:52 UNITED STATES OF AMERICA ,m.

NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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METROPOLITAN EDISON COMPANY, ET AL.) Docket No. 50-289-OLA

) (Steam Generator Repair)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

LICENSEE'S MOTION TO DISMISS INTERVENOR TMIA'S CONTENTIONS 1.a, 1.b, 1.c and 2.b.1 Pursuant to section 2.730 of the Commission's Rules of Practice, 10 C.F.R. $ 2.730, Licensee hereby moves for an order dismissing Intervenor TMIA's Contentions 1.a, 1.b, 1.c and 2.b.1 on the grounds that TMIA has admitted in its January 4, 1984 response to Licensee's December 15, 1983 interrogatories that it is unable to provide any bases for those contentions as required by 10 C.F.R. 5 2.714(b).

Licensee currently has pending before the Board a motion for reconsideration filed on December 12, 1983 which also seeks the dismissal of several of TMIA's contentions for other reasons, including Contentions 1.b and 1.c which are within the ambit of this motion. The instant motion, however, is indepen-dent of the earlier motion, and the arguments presented therein will not be repeated here.

8401120264 840109 PDR 0 ADOCK 05000289 PDR y

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I. CONTENTION 1.a Interrogatories 1.a-1 through 1.a-20 all refer to TMIA's Contention 1.a, in which the fundamental thrust is TMIA's alle-gation that certain undefined "[p]ost repair and plant perfor-mance testing and analysis . . . and proposed license conditions are inadequate. . ." In Interrogatories 1.a-1 and 1.a-5, Licensee asked TMIA to identify the repairs, testing, analysis and proposed license conditions it is challenging, a sine gua non for Licensee's ability to defend against the con-tention. TMIA replied that it "is unable at this date to iden-tify and describe in detail the information requested. . ."

Licensee asked TMIA in Interrogatories 1.a-2, 1.a-3, 1.a-6 and 1.a-7 to explain how the repairs, testing, analysis and pro-posed license conditions were alleged to be inadequate. The reply was the same; TMIA was " unable" to answer.

Interrogatories 1.a-9, 1.a-10, and 1.a-12 through 1.a-19 were of the "do you allege" type, designed to determine pre-cisely what is being alleged in Contention 1.a. and how the al-legation relates to the kinetic expansion repair process. For example, TMIA was asked in Interrogatory 1.a-9 whether it is alleging that the repair is inadequate to prevent the occur-rence of a tube rupture in the expanded portion of the tube.

-In each and every instance, TMIA responded that it was "uanble" to answer.

P And finally, TMIA refused to properly identify and produce any of the documents upon which it purportedly relied in making the allegations in its contentions. See responses to Interrogatories 1.a-4, 1.a-8, 1.a-11 and 1.a-20.

The interrogatories related to Contention 1.a. were fashioned to determine exactly what was being alleged and what the factual bases for the allegations were. TMIA provided no answers whatsoever to any of them. TMIA's response constitutes a clear admission that, notwithstanding their assertions to the contrary at the prehearing conference and notwithstanding the requirements of 10 C.F.R. 5 2.714(b) of the Commission's regu-lations, TMIA is unable to state any basis whatsoever for its Contention 1.a. Of even greater significance, TMIA is not even able to state what its allegations are.

TMIA's admission raises serious and fundamental questions with respect to both Licensee's ability to prepare its case and the legal basis upcn which this contention was admitted.

Motions for summary disposition are due to be filed on February 24, 1984. Memorandum and Order at 31 (November 30, 1983).

Motions for summary disposition must be accompanied by affida-vits, the preparation of which involves significant preparatory effort, virtually as much as the effort involved in preparing the direct case for an evidentiary hearing. Without knowing just which testing, analysis and license conditions TMIA allegas to be inadequate, and how they are alleged to be inade-quate, Licensee cannot possibly begin the preparation of its

.o case, short of trying to guess what TMIA has in mind.

Ordinarily, Licensee would at least have the benefit of the stated bases for.the contentions, as required by section 2.714(b), which must be sufficient to " help assure that the other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against 4

or oppose." Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13, 20-21 (1974). Since TMIA is " unable" to state either its allegations or the bases for them, Licensee is thwarted in the preparation of its case.

TMIA's sole reason stated for not providing the requested information is an alleged " failure" of Licensee, the NRC Staff, or any of their consultants to provide it with the information it purportedly needs to define its allegation and state the factual bases therefor. No one has " failed" to provide infor-

.mation. TMIA is required to at least be able to state its al-legations and bases on the basis of the information in the public record, which in this case is considerable. Duke Power Co. et al. (Catawba Nuclear Station, Units 1 and 2) CLI-83-19, 17 N.R.C. 1041, 1048 (1983). In admitting Contention 1.a, the Board acknowledged that the contention lacked basis, Memorandum and Order at 4, but observed that two of Licensee's documents were not available in the public document room. Those documents, which were peripheral to the application and the primary safety evaluations, and which are of marginal

relevance, if any, to the contention, were immediately made available to TMIA following the prehearing conference last October. (See letter dated October 20, 1983 from Licensee's counsel to the Board.) There is now no conceivable excuse for TMIA not to have provided to Licensee on discovery that which should have been provided in support of admission of the con-tention in the first instance.

Because of the basic and fundamental nature of Licensee's interrogatories, i.e., questions seeking to determine the alle-gations and bases therefor, TMIA cannot simply rely on the fact that Licensee's responses to their discovery requests are not yet due. As the Commission noted in Catawba, supra, TMIA has the responsibility to support the admission of its contentions through reference to documentation in the public domain. Once a contention has been supported with sufficient bases to enable its admission for litigation in a licensing hearing, then, and only then, is a party entitled to discovery. Section 2.740(b)(1) of the Commission's regulations states unequivocably that discovery "shall relate only to those mat-ters in controversy which have been identified by the . . .

presiding officer in the prehearing order . . ." See also Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2)

ALAB-687, 16 N.R.C. 460, 467-68 (1982); Wisconsin Electric Power Co., et al. (Koshkonong Nuclear Plant, Units 1 and 2),

CLI-74-45, 8 A.E.C. 928, 924 (1974); Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 and 2),

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ALAB-107, 6 A.E.C. 188, 192, reconsid. denied, ALAB-110, 6 A.E.C. 247, affirmed, CLI-73-12, 6 A.E.C. 241 (1973) (cases holding that intervening parties are not entitled to develop the bases for their contentions through discovery, but must in-stead develop their bases from public information available to them). By admitting that it had no bases for its contention which has already been admitted, and claiming that it does not have to provide basis until it receives information on discov-ery, TMIA has failed to discharge its most fundamental obliga-tions in this proceeding, and is attempting to act in direct contravention of the clear requirements of the Commission's regulations.

Accordingly, Licensee moves that Contention 1.a be dis-missed on the grounds that TMIA has admitted that it is unable to satisfy the specificity and bases requirements of 10 C.F.R. 5 2.714(b).

II. CONTENTION 1.b Interrogatories 1.b-1 through 1.b-10 were formulated by Licensee to determine the precise nature of the allegations en-compassed in TMIA's Contention 1.b as they relate to the kinet-ic expansion repair process, and the factual basis for the al-legations. That contention alleges that "[blecause of the enormous number of tubes in both steam generators which have undergone this repair process", there is a " possibility of a simultaneous rupture in each steam generator. . ." TMIA has 1

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• provided no answers at all to most of the interrogatories, and has provided no bases whatsoever for the proposition that the kinetic repair process would have any bearing whatsoever on the possibility of a simultaneous tube rupture in each steam gener-ator.

Because the Commission has directed that the contentions to be heard in this proceeding are to be limited to matters within the scope of Licensee's amendment request, which is to revise the license to approve the kinetic repair technique for the steam generator tubes, Notice of Hearing, 48 Fed. Reg. 36707, 36708 (August 8, 1983), TMIA must be able to show the basis for some plausible relationship between the kinetic .

repair process and the alleged possibility of a simultaneous tube rupture in each steam generator. Yet in each instance where Licensee attmpted to obtain TMIA's basis for the required s l,

nexus between Contention 1.b and the subject matter of this proceeding, TMIA responded that it was " unable" to provide such information. See responses to Interrogatories 1.b-1 through 1.b-3, 1.b-7, and 1.b-9.

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TMIA's response is, in essence, that, because the tubec have been repaired, there is a possibility that compliance with' design' basis standards "may not be sufficient" to ensure safe-ty. See response to Interrogatories 1.b-2 and 1.b-3. This is i

not an answer, it is simply an allegation. Facts were asked for, and no facts were given.

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And when asked specifically for the basis of the allega -

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f,' tions that, because of thes kinetic *q expension repair ~ process, a simultaneous tube rupture in eachssteam generator'

is not "an

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incredible event," TMIA did nothi'ng Etore t than cide documents

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specific re- j,

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, lationship go TMI-1 or tho kinetic exp,Qnsion s .

yepair' process.

See response to Interrogatory I l'.'-7.'[/

b s g s o Thus, TMIAhasyettokrovide,ashredofbasistolinkthe I

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)yyepairprocesstotheruptureallpgationsinContention1.b.

0 For the same r'Gasons discussed above wit ( respect to Contention '

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parties' ability to prepare theif cases and the fundamenka'lrequirementforTMIAtostatethebasesforits ., M

' . contentions--Licensee requests that Contention 1.b be atricken

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. on the grounds that TMIA hashadmitted that it is upable to sat-

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... isfy the specificity and bases requirements of 10 C.F.R. $ .

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j' s-g 1/ TMIA relies on a September 19, 1982 memorandum from Paul Shewmon and two follow-up documents, including'a letter to the Commission from Congressman Edward J. Mar 3ey. Notably missing d from TMIA's reponse was mention of the Commission's May 5, 1983 response to Congressman Markey in which it was'made ci, ear that

• the Shewmon memorandum bore no relationship to TMI-1%pecifi- .

cally, or to the kinetic repair process. See pages 3-4 of the 2 Commission's May 5, 1983 letter which was attached to Licens-

• ee's October 6, 1983 Response to TMIA Supplement to Petition for Leave to Intervene. '-

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III. CONTENTION 1.c v

'9 TMIA has provided,no answers to any of Interrogatories i ,

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1.c-1 through 1.c-11 propounded by Licensee to determine the

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nature and bases of the allegation in Contention 1.c that, as a Y result of the kin $ticsrepair process, the plugging of steam 7-generator tubes posen a safety concern. In each instance, TMIA 9 stated either that it w$s " unable" to answer, or that it was

( . refusing to identify and produce the underlying documents.

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.- Moreover, TMIA waw unable" even to state what its specific al-v3 ,

legations are. This,again constitutes an admission that TMIA

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, , ,has no basis'fer its contention. Accordingly, Licensee has no basis upon which to prepare its case in defense against the

" contention, and TMIA has failed to satisfy its fundamental ob-

, ligations under the Commission's Rules of Practice to provide basis for a contention'it seeks to have litigated. Licensee s therefore requests that Contention 1.c be stricken on the

' rounds.that g TM,lA'has admitted that it is unable to satisfy the

.- . . specificity and bases, requirements of 10 C.F.R. 5 2.714(b).

s IV. CONTENTION 2.b.1 C4

'M In Contention 2.b.1, TMIA alleges, in essence, that the s sulfur compounds which were put into the system as a result of g, ,

the\p, leaning process " pose substantial risk that corrosion will s . .

hAbreinitiatdd." The only basis cited, which is contained in

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g$he cony.ention itself, is that R. L. Dillon, an NEC Staff gs ~

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consultant, expressed reservations about embarking on the cleaning process.

However, as pointed out in the Dillon report (SER, Attach-ment 3, pp. 12-14), Mr. Dillon's concerns were expressed prior to the conduct of the clean-up process, and dealt with possible risks during the clean-up process itself, not with risks asso-ciated with operation after clean-up. The position taken by Licensee and the NRC Staff at the prehearing conference was that the clean-up had by then been completed, and subsequent testing had shown there to have been no adverse effects as a result of the clean-up process. Licensee's Response to TMIA Supplement to Petition for Leave to Intervene, October 6, 1983 at 27-28; NRC Staff Response to TMIA and Lee, et al. Conten-tiens, October 6, 1983 at 10; Tr. 85-86, 89-90, 94. Conse-quently, Licensee asked TMIA, in Interrogatories 2.b.1-1 through 2.b.1-3, to explain how and why the concerns with the clean-up process have any continuing relevancy now that clean-up has been completed, and to provide the factual bases for its answer. TMIA responded that it was " unable" to provide When asked if it alleged that the clean-up had any an answer. i adverse effect on the steam generators and if it alleged that Licensee's analysis and tests of the effect of the clean-up were deficient in any respect (Interrogatories 2.b.1-4 through 2.b.1-14), TMIA responded that it was " unable" either to state that it was making such allegations or to provide factual bases for such allegations.  ;

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'O Thus, TMIA has admitted that it is unable to provide a

. basis for Contention.2.b.1, and, indeed, is unable even to state what is being alleged in the contention. Accordingly, Licensee requests.that Contention 2.b.1 be. dismissed on the grounds that TMIA has admitted that it is unable to satisfy the specificity and bases requirements of 10 C.F.R. 5 2.714(b).

V. CONCLUSION

'For all of the foregoing reasons, Licensee respectfully requests.that TMIA's Contentions 1.a, 1.b, 1.c and 2.b.1 be dismissed as matters in controversy in this proceeding.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE k <

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Gborge hfTrowbridge, I)o -

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P.C.

Bruce W. Churchill, P.C.

Diane E. Burkley Wilbert Washington, II Counsel for Licensee >

1800 M Street, N.W.

Washington, D.C. 20036 Telephone: (202) 822-1000 Dated: January 9, 1984

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