ML20087M638

Response Opposing M Lewis 840314 Motion for New Contention Based on IE Info Notice 84-17 Cooling of Vital Components by Liquid Nitrogen.Certificate of Svc Encl

ML20087M638
Person / Time
Site:	Limerick
Issue date:	03/28/1984
From:	Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8403300128
Download: ML20087M638 (12)

Text

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a 9,3,E M 1205 Rc D MAR 29 P2:53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ETTE CF 55g(,

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Before the Atomic Safety and Licensing Board,:,;.5:;;;'..

In the Matter of

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Philadelphia Electric Company

)

Docket Nos. 50-352

)

50-353 (Limerick Generating Station,

)

Units 1 and 2)

)

APPLICANT'S RESPONSE TO INTERVENOR LEWIS' MOTION FOR NEW CONTENTION BASED ON IE NOTICE NO. 84-17 Introduction On March 14, 1984, Marvin Lewis, an intervenor in the captioned proceeding, moved the Atomic Safety and Licensing Board to admit a late-filed contention which asserts that the design of the Limerick Generating Station is deficient "because liquid nitrogen or other potentially very cold fluids can cool vital components of the plant below the NIL (sic) ductility temperature of the susceptible materials of manufactured.1 Applicant opposes the which they are admission of this contention.

Intervenor Lewis has failed to address four out of five of the Commission's criteria for the consideration of l_/

Intervenor Lewis' Motion for New Contention Based on IE

[

Notice No. 84-17 ' (" Motion") at 4.

8403300128 840328 PDR ADOCK 05000352 O

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late-filed contentions contained in 10 C.F.R.

S2.714 (a) (1).

He has attempted to address only

one, the good cause requirement.

On balance, these criteria do not support admission of the contention.

Moreover, the contention lacks specificity and basis.

Argument I.

Intervenor Lewis Has Not Satisfied the Requirements for Admitting A Late Contention.

The late contention proposed by Mr. Lewis may not be admitted unless the presiding Atomic Safety and Licensing Board

(" Licensing Board" or " Board") finds that, on balance, the five factors enumerated in 10 C.F.R. S2.714 (a) (1) (i)-(v) weigh in intervenor's favor.

Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983).

The very failure of Mr. Lewis even to address four of five of these criteria warrants denial of the contention.2/

It is too late in the proceeding for Mr.

Lewis to argue that he was unaware of the requirements to address Section 2.714 criteria for the filing of a late i

l

-2/

Duke Power Company (Perkins Nuclear Station, Units 1, 2 l

and 3), ALAB-615, 12 NRC 350, -352 (1980).

See, also Metropolitan Edison Company (Three Mile Island Nuclear

Station, Unit No.

1),

CLI-83-25, 18 NRC

327, 331 (1983).

contention.

The Board has discussed this requirement on a

/

nunter of occasions.

In any event, the motion fails to meet intervenor's burden to affirmatively demonstrate that he has met the criteria for lateness.

Even considering intervenor's argument, the issuance of IE Information Notice No. 84-17, Problems with Liquid Nitrogen Cooling Components Below the Nil Ductility Temperature, does not constitute good cause for failure to file on time.4/

IE Information Notice 84-17, which was issued on March 5,

1984, discusses a problem with the cracking of a vent header in a BWR Mark I facility apparently caused by misop-eration.

That Notice did not require any specific action or response on the part of any utility.

While Mr.

Lewis recognizes that the plant involved has a Mark I containment, he argues that " Limerick is a Mark series containment which

-3/

See, e.g.,

Philadelphia Electric Company (Limerick Generating

Station, Units 1

and 2),

-Docket Nos.

50-352-OL and 50-353-OL, " Memorandum and Order (Denying Air and Water Pollution Patrol's

-Petition for Additional Intervention Contention)"

( April 12, 1983)-

(slip-op, at 3).

4/

Intervenor attempts to tie this new contention to a

~

previously denied contention relating to pressurized i

thermal shock.

Aside -from some similar terminology, there-is no direct relationship between this~ phenomenon and the cracking of the vent header.

Even if there were any connection,. this would not aid the admission of this new contention.

e

. O is similar to the Mark I containment in many respects."1/

However, Mr. Lewis fails to state any basis for this as-sertion.

The only similarities he finds are " containment,"

" inerting."

and " vent headers."5I The first two are so general as to be meaningless.

The third is simply incorrect and therefore without basis.

Limerick, which utilizes a Mark II containment, does not have vent headers, a matter which is clear from the description of the containment system in the Final Safety Analysis Report.1 Moreover, the system which Limerick utilizes for inerting is described in the FSAR. -

Mr. Lewis asserts that "(m]uch of the liquid nitrogen system is safety related,"1 but gives no basis for this statement nor any reference to the application which would support it.10/

This is one of many conclusory and 5_/

Motion at 1.

6/

Id.

7/_

See, e.g., FSAR Figure 6.2-35.

8,/

See FSAR Section 9.4.5.1 at pages 9.4-35 through 9.4-44 and Figure 9.4-5.

The date on the most current revision for these pages demonstrates the existence of this information in the FSAR at least since November, 1982.

9_/

Motion at 2.

10/

Contrary ' to Mr. Lewis' assertion, the liquid nitrogen

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supply portion of the containment atmospheric control system is net safety related, as shown on Figure 9.4-5 of the FSAR.

is

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a.

pleading.E/

unsupported statements throughout the Furthermore, Mr.

Lewis affirmatively asserts that the

" concern is very new and not included in.

. any other pertinent. document in this instant proceeding."b/

As discussed in footnote 8, this statement is incorrect.

Just as the Appeal Board noted in Midland, the peti-tioner here has " offered no coherent or plausible excuse for the delay."El The self-serving declaration that this matter is very new is clearly insufficient to establish good cause.

In no way does this assertion demonstrate that any new information not previously a part of the record has only now become available.14/

The surfacing of this contention M/

For example, Mr. Lewis attempts to tie this matter to quality assurance by speculating that "there were many engineering change orders and field change orders that did not appear to have full followup."

Motion at 3.

There is no specific basis for this assertion.

Neither does Mr.

Lewis' attempt to graft

~ financial qualifications considerations onto this contention, likewise recently denied by the Licensing

Board, provide any basis for its acceptance.

12/

Motion at 4.

-13/

Consumers Power Company (Midland Plant, Units l-and 2),

ALAB-624, 12 NRC

680, 682 (1980).

See also Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977); Duke Power Company (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 643 (1977) ; Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977).

-14/

In Catawba, supra, the Commission held.that it is a.

" basic principle that a person who invokes the right to participate' 'in an NRC proceeding also' voluntarily (Footnote-Continued) h s

at this advanced stage of the proceeding, wher the Board and parties are already faced with a full schedule of hearings, renders intervenor's tardiness even more significant.EI When an intervenor is late without cause, he must make an especially compelling showing on the remaining four factors.16/

Mr. Lewis has clearly failed to do so.

As to the second and fourth criteria for admitting late con-tentions, no particular showing has been made by Mr. Lewis.

At most, these two factors are neutral on the question cf admitting the late contention.

As the Appeal Board noted in the Summer proceeding, these two factors are to be given relatively lesser weight than the other factors and do not, (Footnote Continued) accepts the obligations attendant upon such participation,"

including "having accepted the obligation of uncovering information in publicly available documentary material."

Catawba, supra, CLI-83-19, 17 NRC at 1048.

As the Appeal Board likewise stated in Catawba, "an intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to.the facility in question with sufficient care to enable it.

to uncover any information that could serve as the foundation for a specific contention."

Catawba, supra, ALAB-687, 16 NRC

460, 468 (1982),

rev'd on other

grounds, CLI-83-19, 17 NRC 1041 (1983).

IT Public Service Company of New Hampshire (Seabrook Station,-

Units 1 and 2), CLI-83-23, 18 NRC 311, 312 (1983), the Commission reaffirmed the vitality of its holding - in Catawba.

15/

See Washington Public Power Supply System (WPPSS

~

Nuclear Project No. 3), ALAB-747, 18 NRC (November 15, 1983) (slip op. at 8).

l

-16/

Mississippi Power & Light Company (Grand Gulf Nuclear l

Station, Units 1 and 2), ALAB-704, 16 - NRC 1725, 1730 l

(1982).

i I

1

s standing alone, justify admission of a late contention even if they weigh in favor of the intervenor.17/

On the third criterion, Mr. Lewis has also failed to i

demonstrate that he could assist the Board in establishing a sound record on this issue.

In particular, he has failed to comply with the requirement of Grand Gulf that " [w] hen a 4

petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony." b No expertise or l

even basic competence in the area Mr. Lewis seeks to liti-gate has been alleged.

I The fifth criterion for admitting late contentions likewise weighs against intervenor.

Admitting the con-tention will inarguably broaden the issues and delay the proceeding.

Mr.

Lewis would likely seek an extended discovery schedule and lengthy preparation time for hear-ings.

Given the already crowded schedule of conferences and hearings set by the Board in order to. dispose of admitted contentions in a

timely

manner, admission of a

new 17/

South Caroline Electric & Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).

18/

Grand Gulf, supra, ALAB-704, 16 NRC at 1730.

See also WPPSS, supra, A13B-747 (slip op. at 18); Long Isla'n'dn 1

Lighting Company (Shoreham Nuclear Power Station, Unit j

1), ALAB-743,.18 NRC 387, 399-400 (1983).

contention at the eleventh hour, more than three years after contentions were initially submitted, would unavoidably cause serious delay prejudicial to the Applicant.19/

According.ly, Mr. Lewis has failed to satisfy the require-ments for admission of his proposed late contention.

II.

The Contention Lacks Specificity and Basis.

The late contention fails to state any issue for litigation.

It merely asserts the general matter of the Information Notice, but fails to show how the particular Limerick design is deficient.

Inasmuch as the design is discussed in the FSAR, Mr. Lewis had an obligation to come forward with specific alleged deficiencies.

Moreover, Mr.

Lewis fails to state what further action he believes is required as a result of the Information Notice.

-19/

It is noted that the Appeal Board in Fermi held that this factor is governed by delay of the proceeding, not delay of operation of the facility.

Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2),

ALAB-707, 16 NRC 1760, 1765-66 (1982);

Long Island Lighting Company - (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1146 (1983).

_9-4 Conclusion For the foregoing reasons, the late-filed contention should be denied.

Respectfully submitted, CONNER & WETTERHAHN b

3.

Mark J. Wetterhahn Counsel for the Applicant March 28, 1984 m

um m

e

,o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

Philadelphia Electric Company

)

Docket Nos. 50-352

)

50-353 (Limerick Generating Station,

)

Units 1 and 2)

)

CERTIFICATE OF SERVICE I

hereby certify that copies of

" Transmittal of References and Errata to Applicant's Testimony Relating to Contention I-42" (without enclosures) and

" Applicant's Response to Intervenor Lewis' Motion for New Contention Based on IE Notice No. 84-17" both dated March 28, 1984 in the captioned matter have been served upon the following by deposit in the United States mail this 28th day of March, 1984:

Lawrence Brenner, Esq. (2)

Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.

20555 Washington, D.C.

20555 Docketing and Service Section Dr. Richard F. Cole Office of the Secretary Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C.

20555 Commission Washington, D.C.

20555 Ann P. Hodgdon, Esq.

Counsel for NRC Staff Office Dr. Peter A. Morris of the Executive Atomic Safety and Legal Director-Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory.

Commission Commission Washington, D.C.

20555 Washington, D.C.

20555-

. Hand Delivery (with enclosures)

t

. 4 Atomic Safety and Licensing Steven P. Hershey, Esq.

Board Panel Community Legal U.S. Nuclear Regulatory Services, Inc.

Commission Law Center West North Washington, D.C.

20555 5219 Chestnut Street Philadelphia, PA 19139 Philadelphia Electric Company ATTN:

Edward G. Bauer, Jr.

Angus Love, Esq.

Vice President &

107 East Main Street General Counsel Norristown, PA 19401 2301 Market Street Philadelphia, PA 19101 Mr. Joseph H. White, III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003 61 Forest Avenue Ambler, Pennsylvania 19002 Robert J. Sugarman, Esq.

Sugarman, Denworth &

Mr. Robert L. Anthony Hellegers Friends of the Earth of 16th Floor, Center Plaza the Delaware Valley 101 North Broad Street 106 Vernon Lane, Box 186 Philadelphia, PA 19107 Moylan, Pennsylvania 19065 Director, Pennsylvania Mr. Marvin I. Lewis Emergency Management Agency 6504 Bradford Terrace Basement, Transportation Philadelphia, PA 19149 and Safety Building Harrisburg, PA 17120 Phyllis Zitzer, Esq.

Limerick Ecology Action Martha W. Bush, Esq.

P.O. Box 761 Kathryn S. Lewis, Esq.

762 Queen Street City of Philadelphia Pottstown, PA 19464 Municipal Services Bldg.

15th and JFK Blvd.

Charles W. Elliott, Esq.

Philadelphia, PA 19107 Brose and Postwistilo 1101 Building lith &

Spence W. Perry, Esq.

Northampton Streets Associate General' Counsel-Easton, PA 18042 Federal Emergency Management Agency Zori G. Ferkin, Esq.

500 C Street, S.W., Rm. 840' Assistant Counsel Washington, DC 20472 Commonwealth of Pennsylvania Governor's Energy Council Thomas Gerusky, Director 1625 N. Front' Street Bureau of Radiation Harrisburg, PA 17102 Protection Department of Environmental Resources 5th Floor, Fulton Bank Bldg.

Third and Locust Streets Harrisburg, PA :17120

f Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 19406 James Wiggins

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Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Nils N. Nichols

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