ML20112J777
| ML20112J777 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 01/14/1985 |
| From: | Churchill B GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20112J780 | List: |
| References | |
| CON-#185-144 OLA, NUDOCS 8501180374 | |
| Download: ML20112J777 (31) | |
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January 14, 1985 OJ d
' PU' 27
- l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
( s. D , .y' Before.the Atomic Safety and Licensing Appeal Board" "
In.the Matter of )
)
' METROPOLITAN EDISON COMPANY, ET AL. ) Docket No. 50-289-OLA
) (Steam Generator Repair)
'(Three Mile Island Nuclear Station, )
- Unit No. 1) )
L LICENSEE'S BRIEF IN OPPOSITION TO APPEAL OF TMIA FROM INITIAL DECISION SHAW, PITTMAN, POTTS & TROWBRIDGE
>_ George F. Trowbridge, P.C.
Bruce W. Churchill, P.C.
Evans Huber Counsel for Licensee 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 o 00 3?lshFho g 2cova c m o c e33
January 14, 1985
'- /
o'2:27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .
> f,'.
.: 5 Before the Atomic Safety and Licensing Appeal Board -
In the Matter of )
)
METROPOLITAN EDISON COMPANY, ET AL. ) Docket No. 50-289-OLA
) (Steam Generator Repair)
(Three Mile Island Nuclear Station, )
Unit No. 1) )
LICENSEE'S BRIEF IN OPPOSITION TO APPEAL OF TMIA FROM INITIAL DECISION t.
i SHAW, PITTMAN, POTTS & TROWBRIDGE George F. Trowbridge, P.C.
Bruce W. Churchill, P.C.
Evans Huber Counsel for Licensee 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 f
TABLE OF CONTENTS Page TABLE OF CONTENTS ......................................... i TABLE OF AUTHORITIES ....................................... ii I. INTRODUCTION ......................................... 1 II. PROCEDURAL BACKGROUND ................................ 2 III. BOARD RULINGS DURING DISCOVERY ....................... 4 A. The Protective Order ............................ 4 B. Request For Expert Panel ........................ 11 IV.
SUMMARY
DISPOSITION .................................. 12 A. TMIA Contention 1.c ............................. 13 B. TMIA Contentions 2.a, 2.b.1 and 2.b.2. .......... 17
- 1. Contention 2.a ............................. 18
- 2. Contention 2.b.1 .......................... 21
- 3. Contention 2.b.2 ........................... 21 IV' BOARD RULINGS DURING THE HEARING ..................... 22 A. Questions Relating to Plugging .................. 22.
B. Material Expunged From the Record .............. 23 VI. CONCLUSION ........................................... 25
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TABLE OF AUTHORITIES CASES Page Township of Lower Alioways Creek v.
Public Service Electric & Gas Co., 687 F.2d 732 (3d Cir. 1982) ................................... 11 NRC DECISIONS Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076 (1983) ................................ 11 Public Service Electric and Gas Co. (Sal.em Nuclear Generating Station, Unit 2),
ALAB-650 14 N.R.C. 43 (1981) ......................... 11 Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1) ALAB-696, 16 N.R.C.
1245 (1982) .......................................... 9 REGULATIONS 10 C.F.R. 2.701(b) .............................. 1 10 C.F.R. 2.715(c) .............................. 4 lo C.F.R. 2.722 ................................. 12 10 C.F.R. 2.722(a)(2) ........................... 12 lo C.F.R. 2.740(c) .............................. 9 10 C.F.R. 2.740(c)(6) ........................... 7 10 C.F.R. 2.749 ................................. 3 10 C.F.R. 2.762(d) .............................. 4 10 C.F.R. 2.762(f) .............................. 1 10 C.F.R. 2.790 ................................. 6, 7, 8, 10 10 C.F.R. 2.790(b) .............................. 9
-ii-
f REGULATIONS Page 10 C.F.R. 2.790(b)(3)-(5) ....................... 8 10 C.F.R. 2.790(b)(6) ........................... 10 10 C.F.R. 2.790(b)(6)(iii) ...................... 7, 9, 24
.48 Fed. Reg. 36707 (Aug. 12, 1983) .............. 2 4
4 1
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c January 14,-l'955 .
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3 / ' ' e 2 I27 '
' L ?. . a.
Before the Atomic Safety and Licensing Appeal Board M_ "
In the. Matter of )
)
METROPOLITAN EDISON COMPANY, ET AL. ) Docket No. 50-289-OLA
) (Steam Generator Repair)
(Three Mile Island Nuclear Station, )
Unit No. 1) )
LICENSEE'S BRIEF IN OPPOSITION TO APPCAL OF TMIA FROM INITIAL DECISION I. INTRODUCTION The Licensing Board below issued its Initial Decision in this proceeding on October 31, 1984 authorizing Licensee to op-erate Three, Mile Island Nuclear Station, Unit 1, with steam generator tubes repaired by a kinetic expansion repair process.
On November 10, 1984, Intervenor Three Mile Alert, Inc.
("TMIA") filed a Notice of Appeal. On December 10, 1984 TMIA filed a Motion to Reopen the Record on the Basis of New Infor-mation (" Motion") and a single brief in support of both its Mo-tion and the Notice of Appeal ("Brief").1/ Licensee herein 1/ None of the documents was accompanied by a properly exe-
-cuted certificate of service as required by 10 C.F.R.
SS 2.762(f) and 2.701(b). The Notice of Appeal was not served on Licensee.
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sets forth its-opposition to the TMIA's appeal. Accompanying this opposing brief, as a separate document, is Licensee's an-swer to TMIA's motion.
II. PROCEDURAL BACKGROUND On May 9, 1983, Licensee submitted a request for amendment of the Technical Specifications of the TMI-l operating license to approve the kinetic repair process for steam generator tubes. Without such a license amendment, TMI-1 would not have been allowed to operate with tubes repaired in such a manner because the Technical Specifications required defective tubes to be plugged, and thus removed from service.
In the August 12, 1983 Notice of Hearing, 48 Fed. Reg. 36707, the Commission specified that the subject matter of the hearing would be limited to Licensee's request for authoriza-tion of the kinetic repair process:
The amendment requested would revise the Technical Specifications to recognize steam generator tube repair techniques, other than plugging, provided such techniques are
. approved by the Commission.
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The licensee's application, dated May 9, 1983, further requested that the Commission approve, within the provisions of the pro-i posed Technical Specification revision, the kinetic expansion steam generator tube re-pair technique used at the facility, thus permitting subsequent operation of the facility, with the as-repaired steam gener-ators.
Parties to the proceeding below were Licensee, the NRC Staff, TMIA, and two individuals referred to c611ectively as Joint Intervenors. The Licensing Board admitted eight TMIA contentions and three contentions advanced by Joint Interve-nors. Memorandum and Order (Ruling on Contentions), LBP-83-76, 18 N.R.C. 1266 (1983).
On February 24, 1984, both Licensee and the NRC Staff filed motions for summary disposition of the contentions of both intervenors pursuant to 10 C.F.R. $ 2.749 (" Licensee Mo-tion for Summary Disposition;" " Staff Motion for Summary Dis-position"). The motions were granted in major part. Memoran-dum and Order (Rulings on Motions for Summary Disposition),
June 1, 1984 (" Order"). All of Joint Intervenors' contentions were dismissed, and Joint Intervenors were dismissed as a party to this proceeding. Order at 91. Summary disposition was de-nied in part with respect to two of TMIA's contentions, with the other contentions being dismissed in their entirety. Order at 37, 50, 67, 71, 84, 91-92. For the two TMIA contentions which were not totally dismissed, the Licensing Board identi-fled specific sub-issues for which evidence was to be presented at the hearing. Order at 23, 32, 91-92.
The evidentiary hearings on these matters were held on July 16-18, 1984, in Middletown, Pennsylvania with all parties represented. Also participating in the hearings was the L..
d, i
L Commonwealth of Pennsylvania, which had requested leave to par-ticipate as an interested State pursuant to 10 C.F.R.
$ 2.715(c).
It is from the ensuing October 31, 1984 Initial Decision that TMIA now appeals. For the reasons stated below, Licensee respectfully submits that the TMIA appeal should be denied and the Initial Decision affirmed.
III. BOARD RULINGS DURING DISCOVERY A. The Protective Order TMIA asserts that the Licensing Board below should not have issued a protective order to protect from public disclo-sure Licensee's proprietary information which was requested by TMIA during discovery. Brief at 7. TMIA does not explain why issuance of the protective order constituted Board error.
Rather, TMIA claims that the information protected was "rele-vant to issues in contention," and that the protective order limited TMIA's discovery.2/
On December 30, 1983, TMIA filed its First Set of Inter-rogatories and Re'uest q For Production of Documents to Licensee, which included Document Request 22:
2/ Contrary to the requirements of 10 C.F.R. $ 2.762(d), it is difficult to determine in this exception, as well as in TMIA's other exceptions, precisely what error of fact or law is being asserted.
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n-Provide all documents or portions thereof which have been withheld from all parties, or from the intervenors, on the basis of the
" proprietary" or " trade or commercial secret" information claimed to have been within the documents. Include all Topical Reports and Technical Data Reports.
Licensee responded that the document requests, including Document Request 22, were so broadly framed as to seek virtu-ally every document which had been generated with respect to l=
the steam generator tube repair program, including documents beyond the scope of the proceeding. Licensee did not object initially to the request on the grounds that it was overly broad, unduly burdensome and sought irrelevant information.
Rather, Licensee stated that it would make available to TMIA essentially all of its files relating to tube repair, and that any proprietary information in its files would be made avail-able subject to a proprietary agreement and protective order.
See Licensee's Answer to TMIA's First Set of Interrogatories and Request for Production of Documents, January 13, 1984, at 89-90.
Prior to its January 13 response, Licensee's counsel had offered the documents to TMIA on a protected basis. Licensee had provided TMIA's counsel with a copy of a proposed form of protective agreement and order prior to discussion of the mat-ter with the parties and the Board during a conference call on January 12. TMIA informed Licensee that it would refuse to 4
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e receive any documents under protective arrangements. See Board
' Memorandum (Memorializing Conference Call), January 13, 1984, at 4-5.
On January 25, 1984, TMIA filed a motion to compel discov-ery with respect to Document Request 22, asserting that it had the right to the documents unprotected by proprietary agreement or protective order. On January 27, 1984, Licensee filed an i objection to Document Request 22, a'nd on February 6, 1984, i
Licensee filed a response to TMIA's motion to compel, along with a motion for a protective order. Licensee filed affida-vits in support of its notion demonstrating that proprietary information in 35 documents, or portions of documents, identi-fied in response to TMIA's interrogatories met the Commission's criteria in 10 C.F.R. $ 2.790 for protection from public dis-closure. Licensee sent the Board a copy of each of these docu-ments for in camera inspection. On February 14 and 27, 1984, re'pectively, s the Staff filed submissions which opposed TMIA's motion and supported Licensee's motion for a protective order.
TMIA did not file a response to Licensee's motion for a protec-tive order.
On March 5, 1984, the Board denied TMIA's motion to compel and issued the protective order sought by Licensee. On April 3, TMIA moved the Board to reconsider its protective order; the Board denied this motion for reconsideration on May 2, 1984.
i The Board's March 5, 1984 ruling granting TMIA access to the proprietary documents under the provisions of a protective order was clearly proper and in ace'ordance with the provisions of the Commission's regulations. Section 2.740(c)(6) of 10 C.F.R. Part 2 expressly provides that the presiding officer may issue a protective order which, subject to the provisions of 10
, C.F.R. $ 2.790, directs that "a trade secret or other confiden-tial research, development, or commercial information not be disclosed or be disclosed only in a designated way." Further, 10 C.F.R. $ 2.790(b)(6)(iii) provides that such proprietary information may be inspected y under protective order, by parties to a proceeding, pending a decision by the Com-mission on the matter of whether the infor-mation should be made publicly available...
In camera sessions of hearings may be held when the information sought to be withheld is produced or offered in evidence.
The Board adhered precisely to the regulations, and TMIA offers no suggestion that the Board in any way acted inconsis-tently with them. TMIA was never deprived of the information.
It decided of its own volition to refuse to accept the informa-tion under the provisions of a duly authorized protective ar-rangement. Tr. 675-76. See generally, Licensee's Motion For Protective Order and Answer to TMIA's Motion for Order Compel-ling Discovery, February 6, 1984, at 4-17; NRC Staff Response to Licensee's Motion For Protective Order, February 27, 1984, at 2-5.
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i TMIA states that preparation of its case was hampered be-cause accepting documents under the authorized protective ar-rangetsnts would have intimidated TMIA members and hindered TMIA's ability to do adequate research. Brief at 7. These ar-guments were expressly considered and rejected by the Licensing Board below (March 5, 1984 Memorandum and Order at 4-5), and TMIA is not now presenting any explanation or argument why that determination was in error. Moreover, TMIA did not then and does not now provide any explanation of any special or unique circumstances which would render its members incapable of ad-hering to the arrangements specifically set out in the Commis-sion's regulations.
TMIA suggests that the protective order should not have been issued because the documents were " relevant to issues in contention" and " Licensee had not denied this fact." Id. The whole purpose of the protective order was to make documents available which presumably were relevant. Were they not, a protective order would not have been necessary because TMIA would not have been otherwise entitled to inspect the informa-tion.
TMIA argues that Licensee had not shown cause why the documents should be protected. Id. To the contrary, Licensee submitted with its motion for a protective order affidavits de-monstrating that the designated information was entitled to
.n protection under the provisions of section 2.790. TMIA did not answer that motion. ,
Finally, TMIA's assertion that the Board did not review the documents which Licensee claimed were proprietary, Id., is clearly contrary to'the record. The Board's review of Licens-ee's affidavits and its determination that Licensee had shown good cause under section 2.740(c) for issuance of the protec-tive order would suggest that the Board did review the docu-ments. March 5, 1984 Memorandum and Order at 5-6. In fact, the Licensing Board expressly stated that it has reviewed the documents:
Judge Wolfe: ...Moreover, I would add that we have reviewed the 35 unexpurgated docu-ments and concluded that none of the asserted privileged portions of these documents evoke any concern on our part with respect to the health and safety of TMI-1.
Tr. 676.
What the Board did not do was to make a determination under section 2.790(b) that the information was ultimately en-titled to proprietary status. The purpose of the provisions of e
section 2.790(b)(6)(iii) is to allow the Board to proceed with "a hearing, in camera to the extent necessary, prior to resolu-tion of such proprietary issbes, inforder to avoid a delay in the hearings. In the matter of Wisconsin Electric Power ,
Company (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 ,
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1 N.R.C.'1245, 1261, (1982). ,The Board indicated that it was '
taking just that course of action because it did "not want to F
delay the progress of the proceedings during the rather lengthy ,
time it would take to review the documents and determine wheth-
\ er they should be publicly disclosed." March 5, 1984 Memoran-dum and Order, at 6-7.
At the close of thb hearing the Licensing Board correctly ruled that, because TMIA had refused to accept delivery of the 1 e
, proprietary documents, refused to proceed,in an in camera ses-
'sion, and refused to abide by the protective order, there was no need to make a determination of whether the documents were entitled ~to protection against public disclosure. Tr. 675-77.
If TMIA had accepted the information under the protective order, and the infoimation had been used in an in camera ses' sion as provided by the regulations, TMIA would have been ulti-mately entitled to such a determination. But the information was not used, and the reason it was not used was one of TMIA's e
own election. Certainly TMIA does not have a right to refuse ,
s to look at the information under protective. status, then to de-3
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i mand that a section 2.790 determination be made by the Board, and finally to demand that the hearing be delayed so that it
~-r can use the information after the determination had been made.
This would abrogate the clear purpose of the rule in section b 2.790(b)(6) to avoid delay.
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The Licensing Board clearly committed no error, and the exception should be denied.
B. Request for Expert Panel TMIA alleges that the Board improperly denied its January 25, 1984 motion for the appointment of a special panel to pre-side over the hearing. TMIA, however, does not assert any error on the part of the Board in denying the motion, nor does TMIA explain why it believes the denial was improper. TMIA merely summarizes the motion and states that it was denied on February 24, 1984.
TMIA has clearly failed to brief this allegation of Board error. It is by now well established that a failure to brief an exception on appeal will result in a denial of that excep-tion. Louisiana Power & Light Co. (Waterford Steam Electric f Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1083 (1983); Public Se'vice r Electric and Gas Co. (Salem Nuclear Generating Station, Unit 2), ALAB-650, 14 N.R.C. 43, 49-50 (1981), aff'd sub nom.
Township of Lower Alloways Creek v. Public Service Electric &
Cas Co., 687 F.2d 732 (3d Cir. 1982).
In any event, the issue was thoroughly briefed in the an-swers of Licensee and the Staff, filed on February 9 and February 14, 1984, respectively. The Licensing Board correctly denied the motion, primarily on the grounds that it had no 4
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v authority to invoke such a radical departure from its obliga-tion to conduct the hearing. Memorandum and Order, February 24, 1984, at 2-3.
Section 2.722 of the Commission's Rules of Practice, 10 C.F.R. section 2.722, specifically designates those instances where special assistants to the presiding officer may be em-ployed. That sectica, however, does not provide for the type of panel and procedures requested by TMIA. Section 2.722(a)(2) provides that a Special Master may be appointed to hear evi-dence, but that provision is far more limited than the situa-tion proposed by TMIA. Most significantly, and dispositively, a Special Master cannot be utilized without the consent of all parties. Such consent was not obtained.
Because TMIA has not briefed the points cited by the Li-censing Board as the basis for ts denial of the motion, and because the Licensing Board obviously committed no_ error in denying the motion, this exception must be denied.
IV.
SUMMARY
DISPOSITION At pages 8-11 of its Brief, TMIA takes exception to the Licensing Board's summary disposition of TMIA Contention 1.c relating to the plugging of defective tubes, and TMIA Conten-tions 2.a, 2.b.1, and 2.b.2 concerning the potential.for i
reinitiation of the conditions that had caused the steam
generator tube damage. For much of its argument, TMIA relies on new information from documents obtained by TMIA subsequent to the closing of the record. Obviously, the Appeal Board can-not look to the presentation of new information outside of the record below as basis for finding Licensing Board error. To the extent TMIA's arguments are based on such new information, Licensee has addressed them in its accompanying answer to TMIA's motion to reopen the record. This brief will address only those allegations of error properly brought on appeal, i.e., those not based on the new information presented.
A. TMIA Contention 1.c TMIA Contention 1.c, as admitted by the Licensing Board, read as follows:
- c. The kinetic expansion repair weakened the tubes. As a result, the plugs will not be able to hold and give a good
, seal, and thus the plant's ability to resnond to transients and accidents will be adversely affected.3/
3/ Contention 1.c, as presented by TMIA at pages 3-4 of its Brief, was not admitted by the Licensing Board in that form.
That contention, as written, bore no relationship to the kinet-
- ic expansion repair procesr which was the subject of the hear-ing below. On the basis of TMIA's oral statement at the October 17, 1983 prehearing. conference that its concern was the effect of the repair process on the integrity of the plugs, sTr. 58, the Licensing Board, rather than rejecting the conten-tion as urged by Licensee and the staff, Licensee's Motion for Reconsideration of November 29, 1983 Memorandum and Order, December 12, 1983, at 6-9; NRC Staff Response in Support of (Continued Next Page)
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In arguing that the Licensing Board erred in dismissing the contention on summary disposition, TMIA provides no cita-tion to the record. Brief at 8-9. TMIA instead relies primar-ily on new information about plugs which have allegedly
" failed." Without consideration of the new information, which will be addressed in Licensee's answer to the motion to re-open, 4/ all that remains are TMIA's statements (without sup-porting citations) that TMIA had supported its Contention 1.c.
by noting (a) the concerns of Licensee's Third Party Review Group that "the tubes had been weakened," and (b) that there were "23 plugs which leaked after testing." Brief at 8. Be-yond disagreeing with the Licensing Board's position, TMIA has t'
presented no argument or basis for the Appeal Board to find that the Licensing Board committed error.
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(Continued)
Licensee's Motion for Reconsideration of November 29, 1983 Mem-orandum and Order, January 3, 1984, at 3-4, amended the conten-
- tion and admitted it in the form as stated above. Memorandum and Order, January 9, 1984, at 5. TMIA has not taken exception
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to the reformation of Contention 1.c.
4/ As evidenced by the affidavit in support of Licensee's an-swer to the motion to reopen, the plug failures were caused by irregularities in their installation, and had nothing to do with the kinetic expansion repair process. Affidavit of Branch D. Elam, January 11, 1985, 1 7.
I In their motions for summary disposition of Contention 1.c, both Licensee and the NRC Staff provided detailed and ex-t N
tensive evidence by affidavit showing that the kinetic expan-sion repair process had no effect on the integrity of steam generator tube plugging.5/ Licensee and the Staff demonstrated that the portion of the tube which engages the plug would not be weakened or otherwise changed by the kinetic expansion pro-cess in a way that would affect the integrity of the plugging seal.p/ TMIA provided no relevant evidence to contradict the evidence of Licensee and the Staff. Order at 33-37. The Li-censing Board dismissed the contention in its entirety. Id.
at 37.
Contrary to TMIA's statement, Brief at 8, the Licensee's Third Party Review Group (TPR) felt that the tubes had not been
-weakened by kinetic expansion, and expressed no concerns what-soever about the capacity of the tubes to accept plugs.7/
Al'though TMIA does not cite to the record or to the TPR report, presumably TMIA is referring to its Statement of Material
.jb/ Licensee's-Motion for Summary Disposition at 14-16, 83-87, and Affidavit of Branch D. Elam, February 23, 1984; Staff Mo-tion for Summary Disposition at 8-10 and Affidavit of Conrad E.
McCracken and Louis Frank, Contention 1.c, February 24, 1984.
s/ Id.
7/ The TPR Report, February 18, 1983, is included in Attach-ment 6 to the Staff's Safety Evaluation Report, NUREG-1019, November 1983. (Staff Exhibit 1).
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Facts, Contention 1.c., 1 2-3, page 32, which TMIA filed on April 3, 1984 in response to the motions for summary disposi-tion. Citations there lead to pages 14-16 of the February 18, 1983 TPR Report. The only material on those pages dealing with the effects of the kinetic expansion repair process on the strength of the tubes is Finding 1 at page 14, and Comment 2 at page 15. Those sections indicate that the TPR did not feel that the repair process had weakened the tubes. More to the point, however, neither those sections nor any other sections of the TPR Report, as supplemented, indicate any concern by the TPR that plugging would be adversely affected by the kinetic expansion.
TMIA's suggestion that the existence of 23 leaking plugs is evidence of inadequate plugging because of the kinetic ex-pansion process, Brief at 8, is equally without merit. This is apparently a reference to the Staff's statement that 23 plugs were found to leak and were repaired. Affidavit of McCracken and Frank, Contention 1.c, 6. The Staff also noted, however, that in light of the large number of plugs, that percentage of leaking plugs "was not unusual for typical plugging operations which do not include kinetic expansion." Id. TMIA also failed to mention Licensee's point that of the 23 plugs, only six were in the kinetically expanded portions of the tubes. Licensee's Reply to TMIA's Response to Licensee's Motion For Summary Disposition, Attachment I, p. 15, V 12 (April 13, 1984). Thus, the twenty-three leaking plugs provide no basis for suggesting that the repair process impaired plugging integrity.
Accordingly, in view of the substantial evidence sup-porting the Licensing Board's dismissal of Contention 1.c and the lack of evidence or valid argument in contradiction, the Board did not err in dismissing Contention 1.c.
B. TMIA Contentions 2.a., 2.b.1 and 2.b.2 These three contentions all related to TMIA's issue of whether Licensee had accurately identified the cause of the tube damage and was thus able to take measures to provide ade-quate assurance that the damage would not recur. The affidavit evidence of both Licensee and the Staff showed conclusively that the source of the cracking had been positively identified, that the conditions leading to the cracking were known and con-trollable, and that measures would be taken to assure that such conditions would not recur.g/ On the barsis of this evidence, the Licensing Board dismissed the three contentions on summary disposition, as well as similar contentions which had been raised by Joint Intervenors. Order at 56-91.
B/ See Licensee Motion for Summary Disposition at 33-46,90-120, and Affidavit of F. Scott Giacobbe (February 23, 1984);
Staff Motion for Summary Disposition at 13-19 and Affidavits of Conrad E. McCracken and Stanley Kirslis on Contentions 2.a, 2.b.1, and 2.b.1, February 24, 1984.
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The failure mechanism in the TMI-1 steam generator tubes was unusual in that the indications were circumferential in na-ture and were initiated from the primary side of the cooling system, on the inner surface of the tubes. Both Licensee and the Staff provided evidence of an extensive series of tests and i studies which demonstrated that the cracking was caused by an unusual combination of circumstancas which occurred while the plant was in its period of extended shutdown. The cause of the tube condition was determined to be intergranular stress as-sisted cracking (IGSAG) induced by intermediate metastable sul-fur compounds. Unplanned introductions of sulfur into the pri-mary system were followed by a combination of axial load stresses, low temperatures, and oxidizing conditions which oc-curred during the cooldown and shutdown following hot function-al testing in August and September of 1981. See Licensee Mo-tion-for Summary Disposition, Affidavit of F. Scott Giacobbe, February 23, 1984 ("Giacobbe Affidavit"), 11 37-43. Because of the extensive detail in which the source and cause of the IGSAC is known, recurrence can be effectively prevented by control-ling the total amount of sulfur in the primary system and by preventing the combinations of temperature and oxidizing condi-tions which could result in the formation of the harmful sulfur forms. Id., 11 108-116.
- 1. Contention 2.a TMIA appears to be arguing that the motions for summary disposition did not adequately demonstrate that the source of the IGSAC had been properly identified. Other than arguments based on new information, 9/ TMIA's only argument centers around the statement of Staff consultant Digby Macdonald that, as stated by TMIA, "a volatile polysulfur must be present in the system." Baief at 10. TMIA alleges that Macdonald's statement (a) is inconsistent with Licensee's failure scenario as advanced by two independent laboratories, Id. at 9-10, and (b) was dismissed as irrelevant by the Staff, Id. at 10. Nei-ther allegation is correct.
Licensee's failure analysis, consistent with the analyses of 'he c two independent laboratories, identifies sulfur con-taminants as the cause of the IGSAC. Giacobbe Affidavit, 11 9, 37-39. The failure scenario identified by Licensee includes chemical reduction under hot conditions of the sulfur contaminants (primarily thiosulfate) to more reduced metastable species. Subsequent system oxygenation-created an environment 9/ On the basis of information submitted with its motion to reopen the record, TMIA is arguing that observed increases in the levels of sulfates and chlorides in the primary coolant, and recent eddy current indications, suggest that IGSAC may be recurring. This is addressed in Licensee's accompanying answer to that motion which demonstrates that no such recurrence is taking place.
conducive to chemical attack by these species. Giacobbe Affi-davit, 11 33, 38-43. Dr. Macdonald's statement, taken in con-text, refers to the presence of a volatile species present at the time of chemical attack, not to the introduction of a sepa-rate contaminant. NUREG-1019 (Staff Exhibit 1), Attachment 4, pp. 22-23. Inasmuch as polysulfur species are nothing more than reduced species of sufur, Giaco.bbe Affidavit, 1 33, this is totally consistent with Licensee's failure scenario. Thus, an alleged inconsistency between these statements cannot be used to support TMIA's assertion that "[t]he corrosive contaminant and the failure mechanism had not been adequately identified." Brief at 9.
'TMIA's implication that the Staff dismissed Macdonald's statement as irrelevant is clearly incorrect. The Staff noted
.that the statement was technically irrelevant to the subject matter of TMIA's Contention 2.a. This was because the state-men't had been made in support of a recommendation that the sys-tem be desufurized. Staff Motion for Summary Disposition, Af-fidavit of M,cCracken and Kirslis, Contention 2.a, 11 8, 10.
The Staff nevertheless addressed both the specific comment, Id., 1 10, and the substance of the comment, in which the Staff concurred that the cause of the IGSAC was reduced forms of sul-fur. Id., 1 4. This is totally consistent with Macdonald's statement, as well as with Licensee's failure scenario.
.e Accordingly, TMIA has provided no basis for'a finding of error by the Licensing Board in its dismissal of Conten-tion 2.a.
- 2. Contention 2.b.1 In its argument for Contention 2.b.1, TMIA alleges that new information " indicates that cracking has reinitiated and
_{ Staff Consultant] Dillon's theory concerning the cleaning pro-cess cannot be ruled out as the cause." Brief at 10-11. As is
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demonstrated by affidavit in the Licensee's accompanying answer to TMIA's motion to reopen, cracking has not in fact reinitiated. Since TMIA has advanced no reason why the Licens-ing Board erred in dismissing Contention 2.b.1 beyond reliance on information that was not on the record before the Licensing Board, there can be no finding of error on appeal.
- 3. Contention 2.b.2 TMIA presents no reasons whatsoever for alleging that the Licensing Board erred in dismissing Contention 2.b.2. TMIA simply states what it alleged in the contention, and recites some of' Licensee's assertions. TMIA does not even state which of Licensee's assertions ~it alleges are incorrect, and presents no reasons why the Licensing Board should not have relied on the positions advanced by Licensee or the Staff. Consequently, there can be no finding of error. t V. BOARD RULINGS DURING THE HEARING A. Questions Re'lating to Plugging TMIA asserts that the Licensing Board improperly disal-lowed questioning on the subiect of plugging. Brief at 11-12.
There was no error here, because the contention relating to plugging had been eliminated on summary disposition, and plug-ging was no longer within the scope of the subject matter of the hearing.10/
To be allowed to question witnesses on the subject of plugging, TMIA would have had to have been successful in noving the Licensing Board.to admit a new contention (or to readmit the original contention). No such motion was made.
,Ns discussed in Section IV.A, supra, Contention 1.c was dismissed on the basis of affidavits of both Licensee and the
.Stpff which' demonstrated conclusively-that the kinetic expan-sion repair _ process'did not affect-pludging integrity. TMIA's
-attempt.to question the witnesses was based on the recent dis-covery of a missing plug and a loose plug. Tr. 208. Nothing was presented'below=to suggest that they were in any way caused 10/ 'The Board correctly. stated: "The matter of plugging is not in issue. . [TMIA's representative] may cross-examine to the full-extent within the scope of the remaining matters that are in issue this case. There is nothing now before us with regard to" plugging."
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by the kinetic repair process; no such argument has been
. presented on appeal, and the affidavit evidence presented on summary disposition had precluded the likelihood of any such relationship.11/
Given the extensive and unequivocable affidavit evidence on summary disposition which had previously demonstrated that the kinetic expansion process would not affect the integrity of plugging, and given that TMIA attempted to question witnesses on matters beyond the scope of the contentions at issue in the hearing without providing any showing that plug failures could be in any way related to the kinetic expansion repair process, the Licensing Board was clearly correct in excluding a line of questioning on plugging.
B. Material Expunged From The Record TMIA alleges that the Licensing Board committed error by improperly expunging material from the record. Brief at 12-13.
11/ TMIA also requested to question witnesses on the basis of Board Notification 84-131, July 13, 1981 ("BN-84-131"). Tr.
204-5. The only reference to plugs in that notification was the following: "A total of approximately 15 tubes and/or plugs showed indications of minor leakage. Minor leakage of this magnitude is typical from plugs and anticipated from the re-paired tubes." BN-84-131 contained no suggestion that the plug leakage was in any way related to the kinetic expansion. In any event, since TMIA's brief refers only to " loose and missing plugs," Brief at 11, TMIA is apparently not relying on BN-84-131.
The facts are that, during cross-examination by TMIA, one of Licensee's witnesses inadvertantly disclosed information which r
Licensee considered to be proprietary. Following a bench con-ference during which Licensee's counsel explained the situation to the Licensing Board, the material was expunged from the record. Tr. 442-44; see generally Tr. 442-55, 677-79. TMIA was offered the opportunity to continue the line of questioning in camera, and thus reinstate the information into the record,
.but refused to do so. Tr. 443-44, 445-46, 449, 455.
As discussed in section III.A, supra, the Commission's regulations specifically provide for in camera sessions of hearings when proprietary information is produced or offered in evidence. 10 C.F.R. 6 2.790(b)(6)(iii). In providing the op-portunity for the in camera session, the Licensing Board acted strictly in accordance with both the spirit and the letter of the regula cions. Hence, it cannot be said to have committed error in providing precisely the measure of protection contem-plated by the Commission's Rules of Practice.
Because TMIA was offered, and refused, the opportunity to procead with its line of questioning in camera, it cannot be said to have been prejudiced by the Licensing Board's action.
TMIA at no time asserted that it would in fact have suffered prejudice. See Tr. 443, 445-46, 677-78.
. c.
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TMIA relies on the argument that Licensee had provided the proprietary information to TMIA on discovery, r.nd then "belat-edly decided that the information was proprietary" during the hearing. Brief at 12-13. The information in question was "whether or not there were one or more expansions in tne kinet-ic expansion process, and if so, how many ..." Tr. 447. This information has always been considered proprietary by the con-tractor who performed the repairs. Licensee was not aware until that day at the hearing that TMIA possessed the informa-tion, if in fact it did, 12/ or that TMIA would attempt to use or elicit it at the hearing. If Licensee had provided the information to TMIA, it was certainly inadvertant. Under the circumstances, it cannot be said that Licensee was untimely in asserting its right to have the propietary information pro-tected in an in camera session of the hearing.
VI. CONCLUSION For all of the foregoing reasons, none of TMIA's excep-tions supports a determination of error by the Licensing Board 12/ At the close of the hearing, TMIA stated that, "[t]he information that I refer to is so prevalent throughout the documents that I really have not even bothered to cite it, so I have no cites to give you." Tr. 677. To this day, Licensee is unaware of just what information TMIA possesses on the subject, or, if it has such information, how it obtained it. Licensee is unaware of its having turned over on discovery any documents which contain the proprietary information.
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bmlow. Accordingly, Licensee respectfully submits that TMIA's appeal should be denied, and the Initial Decision of October 31, 1984 affirmed.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
,m George T. Yrbwbridge, P.C.
Bruce W. Churchill, P.C.
Evans Huber Counsel for Licensee 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Dated: January 14, 1985 l
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