ML20128A130
| ML20128A130 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 11/18/1992 |
| From: | Knotts J PACIFIC GAS & ELECTRIC CO., WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#492-13396 OLA, NUDOCS 9212030195 | |
| Download: ML20128A130 (76) | |
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-UNITED STATES'OF AMERICAt i
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BEFORE THE ATO.KIC SAFETY AND LICENSING BCARQE
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' Docket Mos; PACIFIC. GAS AND~ ELECTRIC.CO.-
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- Docket.Nos. 550-323-OLA-
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PACIFIC'GASJAND.ELECTRICbOMPANYdS.
. RESPONSE:TO PETITIONER'S
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SUPPLEMENT'TO: PETITION'TO INTERVENE ~'
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Christopher J. Warnerg JosephiBbKnottskJr.-
Richard'F.: Locke
-: David AU Repk'as K a t h r y n :: M,.; K a l o w s k y -
PACIFIC GAS : AND ~ ELECTRIC = CO..
lWINSTON'&XSTRAWNn J
e 77 Beale Street L1'4 00 E Lc Street, ? N.W.c 1
San Francisco,sCAi(94106.
- Wa'ahingtonV D.C.;
- -20005-35021 3(202);371-5700F
! A t t o r n e y s - f o p P a c i f i c :. G a s !.- a n d Electric >Co.
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'92 f:JV 20 E: :08 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- s SEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket Nos. 50-275-OLA _ p, PACIFIC GAS AND ELECTRIC CO.
)
Docket Nos. 50-323-OLA
)
(Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
(Construction Period Recovery)
)
PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE TO PETITIONER'S SUPPLEMENT TO PETITION TO INTERVENE Christopher J. Warner Joseph B.
Knotts, Jr.
Richard F.
Locke David A.
Repka Kathryn M. Kalowsky PACIFIC GAS AND ELECTRIC CO.
WINSTON & STRAWN 77 Beale Street 1400 L Street, N.W.
San Francisco, CA 94106 hashington, D.C.
20005-3502 (202) 371-5700
(
Attorneys for Pacific Gas and l
Electric Co.
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9212030195 921118 i
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TABLE OF CONTENTS I.
INTRODUCTION 1
1 II.
BACKGROUND............................................
6 A.
Chronology.......................................
6 B.
Limited Scope of CP-Recapture Amendment Proceeding......
3 7
C.
Threshold for Admission of Contentions........... 11 III. ADMISSIBILITY OF PROPOSED CONTENTIONS 14 Contention I: Maintenance and Surveillance.............
14 1.
The Maintenance and Surveillance Programs Are Outside the Scope of This Proceeding....................................... 15 2.
Proposed Contention I Lacks Specificity in, and Bases for, the Assertion of Failure of Maintenance and Surveillance Programs at DCPP 17 Contention II: Personnel Performance...................
25 Contention III:
Fraudulent Parts......................
29 Contention IV:
Generic Aging..........................
33 Contention V:
Thermo-Lag..............................
37 Contention VI:
Hazardous Materials....................
39 Contention VII:
Radioactive Waste Storage.............
40 Contention VIII:
Emergency Preparedness Generally............................
43 Contention IX:
Emergency Preparedness and Earthquakes............................
47 Contention X:
No Significant Hazards Consideration...........................
47
l TABLE OF CONTENTS (Cont'd.)
~
Contention XI:
NEPA Issues 48 1.
The NRC Staff Is Not Required to Prepare an EIS Assessing the Environmental Impact of the Proposed Amendment 48 t
t 2.
"Need for Power" Contentions are Inadmissible in CP-Recapture Proceedings 50 IV.
STANDING...............................................
51 4
V.
CONCLUSION.............................................
56 T
4 r
4 1
i t
6 9
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. _. _,. _ _ _ - ~. - _
i November 18, 1992 i
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
)
}
Docket Nos. 50-275-OLA Pacific Ga1 and Electric Company
)
50-323-OLA
)
(Construction Period (Diablo Canyon Nuclear Power
)
Recovery)-
i Plant, Units 1 and 2)
)
)
PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE TO PETITIONER'S SUPPLEMENT TO PETITION TO INTERV_EN_E I.
INTRODUCTION In accordance-with the Licensing Board's Memorandum and Order dated. September 24, 1992,l' and pursuant to 10 C.F.R.
S 2.714 (c), Pacific Gas and Electric Company ("PG&E") herein responds i
to the San Luis Obispo Mothers for Peace ("MFP" or " Petitioner")
Supplement to Petition to Intervene
(" Supplemental Petition")2/,
As discussed in greater detail in Section III
- below, the contentions proposed by MFP f ail.to satisfy the -legal standards for admissibility set-forth in Nuclear Regulatory Commission-("NRC"'or
" Commission") regulations codified at 10 C.F.R..S 2.714.
At the outset, PG&E notes:-than none of the contentions proposed by MFP in any way controvert the overall excellence =of l'
Memorandum and Order (Filina Scheoules' and Preh'earina Conference), September 24, 1992
(" Memorandum and Order").
(
2' '
" San Luis Obispo Mothers for Peace Supplement to Petition to Intervene," October 26, 1992.
,. _ _.. _._, _....~ _.._ -.._. _ _ _ _. _,. _.. _.. _._ _.
PG&E's programs for operating and maintaining Diablo Canyon Nuclear Power Plant ("DCPP").
This excellent safety performance has been recognized by the NRC numerous times since issuance of the initial operating licenses.
For example, the NRC twice recently commended PG&E's outstanding safety record as part of the Commission's semi-annual review of licensee performance, in February 1992, and again in June 1992.
These commendations -- which were among a select few awarded to NRC licensees nationwide -- specifically reference the excellent performance of PG&E personnel and programs, and recognize DCPP as being one of the best operated nuclear plants in the nation:
NRC senior management recognizes that management involvement in all phases of plant operation, the dedicated and knowledgeable staff I
that supports plant activities, and the commitment to safety througtJaut the organization are necessary to achieve the level of performance demonstrated by the Diablo Canyon nuclear power plant.
We commend you and your staf f for achieving a high level of safety performance.
Your achievement is the result of dedicated efforts from your staff and is a example to the i n d u s t r y. l' p o s i t i v e l
Similarly, the NRC specifically has recognized the high 1
quality of the maintenance and surveillance programs at DCPP.
The NRC's Systematic Assessment of Licensee Perrormance ("SALP") review board has judged PG&E's performance in Maintenance / Surveillance to 1
l' J.N.
Taylor, NRC, to R.A.
Clarke, PG&E, dated February 3,
1992, and June 30, 1992, respectively (Attachments A and B hereto).
i i
be a Category 2 in each of the last three SALP assessment periods, spanning the period August 1987 through June 1991.i' A. SALP
" Category 2" rating has been defined in NRC Manual Chapter 0516, Section 0516-08, as "a
good level of performance," based cn l
licensee management attention and other performance
- valuations.
1 i
In concrast to these programmatic evaluations Ly the NRC, i
the MFP contentions cite only out-of-context and isolated NPC i
f Inspection Report findings, Licensee Event Reports, and Notices of Violation.
None of the contentions contain an adequate factual basis to support the assertion that PG&E's established programe and personnel are inadequate to assure safe operation-of the plant-i during the 40 years for which DCPP was originally designed and a
yzed.
For example, in support of proposed Contention I 4
j regarding the alleged inadequacy of PG&E's Maintenance and Surveillance
- programs, MFP cites several deficiencies in j
maintenance practices involving a sinale component -- the backdraf t over a limited dampers inside Containment Fan Cooler Units period of time.
Other cited bases for Contention I include minor housekeeping findings, events wholly unrelated to maintenance or i
surveillance, and similarly out-of-context findings on certain 1
individual maintenance practices.
Contrary to Petitioner's i
i i
E l'
J.B.
- Martin, NRC, to J.D.
- Shiffer, PG&E,
" Systematic i
Assessment of Licensee Performance Report Numbers 50-275/91-19 I
and 50-323/91-19," August 21, 1991; J.B. Martin, NRC, to J.D.
Shif fer, PG&E, " Systematic Assessment of Licensee Performance, j
Report Numbers 50-275/89-32 and 50-323/89-32," March 13,1990; J.B.
- Martin, NRC, to J.D.
- Shiffer, PG&E,
" Systematic 3
Assessment of Licensee Performance (SALP)," September 29, 1988.
3
} i l
h i
en proposed contention, none of the findings implicate PG&E's Drocrams or PG&E's broadly demonstrated ability to implement those programs.
Likewise, proposed contention II, alleging that PG&E lacks skilled, motivated, and reliable personnel, is completely non-specific.
The broad assertion is also unsupported by any relevant facts regarding any programmatic deficiency in the
- training, qualification or performance of PG&E personnel.
Contention II therefore falls short of alleging either a specific inadequacy or DCPP-specific facts which would duplicate the kind of assertion and bases regarding overreliance on personnel which supported the admission of a contention in the Vermont Yankee proceeding on a similar license amendment.l' Besides f ailing to cite any facts which contradict DCPP's excellent operating and maintenance record, the MFP proposed i
contentions all fail to meet the criteria of S 2.714 because they raise issues outside the narrow scope of this proceeding.
As recognized by the Vermont Yankee Licensing Board, "(c)onstruction period recapture amendments are something entirely different from amendments that wou.1d extend the licensed life of.a plant beyond its original licensing basis,
" 0' Contrary to MFP's frequent assertion, continued plant operation beyond the statutory I'
Vermont Yankee Nuclear Power Ccrp.
(Vermont Yankee Nuclear Power Station), LBP-90-6, 31 NRC 85, 107-110 (1990) (" Vermont Yankee").
0' Id. at 87 n.2..
term is agt here at issue.F Rather, the proposed amendment is solely an administrative change to the license to reflect the computation of the normal statutory tera of an initial operating license as interpreted by the NRC.
This proceeding involves no change to the operation or design of the plant or any of its structures, systems or components.
Nor does this proceeding involve any on-site or off-site consequences not previously analyzed by PG&E and the NRC when the initial operating licenses were issued.
Therefore, contrary to the MFP contentions, the scope of this-proceeding does not permit parties either to relitigate issues previously subject to hearing during initial plant licensing, or to prematurely litigate issues unique to license renewal, such as age-related degradation.
As discussed in more detail in-Section III below, MFP's proposed contentions also are inadmissible because they are precluded by NRC regulations or law (tontentions VII, IX, X and XI), they are generic operational issues and contain no factual basis or nexus to DCPP or the time period at issue (Contentions IV, V, and LII), or they f ail to cite any f acts or expert testimony to support a finding of specific programmatic deficiency in PG&E's l
current and future ability to operate the plant safely and in accordanco with its licensing basis (Contentions III, VI and VIII).
l F
As discussed in Section II.B below, Petitioner repeatedly mischaracterizes.this as a " license renewal"- or " license extension" proceeding.
SS_q-Supplemental Petition at 1, 2, 4,
5, cassim.
The instant proceeding involves neither " renewal" nor " extension.".-
~.
l Finally, as discussed in Section.IV below, Petitioner again has failed to identify, with requisite particularity, any-t l
injury resulting from the requested license amendment sufficient to demonstrate its standing to intervene in-this proceeding.
i i
In view of Petitioner's failure to demonstrate standing l
l in the proceeding and to file a single admissible contention, its l
pending request for hearing and petition to intervene!' should be denied.
II.
BACKGROUND 4
l A.
Chronoloav On July 9,
1992, PG&E-submitted to - the' NRC " License Amendment Request 92-04, 40-Year Operating License Application"
^
l
(" Proposed Amendment").
Since
- 1982, the NRC has granted to licensees more than 50 such license amendments.
Consistent with l
this past
- practice, in PG&E's case the NRC. Staff issued a
i preliminary determination that the proposed amendment involved no significant hazards consideration,
- and, in accordance with 10 C.F.R. SS 2.105 and 50.91(a), published a notice of opportunity for hearing in the Federal Reaister (" Notice").2/
That Notice invited written requests for hearing and petitions for leave to intervene, I
in accordance with 10 C.F.R.
S 2.714, by August.21, 1992.
The l
I'
" Request for A Hearing And Petition For Leave-To Intervene As Required By (10] CFR 2.714," August 18,.1992.(" Petition").
2' 57 Fed. Reg. 32,571, 32,575 (July 22, 1992).
, i'
.~ _ -..
Notice fully described the requirements of 10 C.F.R.
S 2.714
-governing intervention.
In her August 18, 1992, Petition, Nancy Culver, President of the MFP Board of Directors, requested that a hearing be held regarding the Propose.d Amendment and petitlened to intervene.
PG&E l
filed a timely answer on September 4, 1992.8 The NRC Staff also filed a timely response to the MFF Petition, dated September 8=,
1992.F Both the PG&E and NRC Staff responses concluded that MFP had failed to satisfy the intervention re.quirements specified in 10 C.F.R. S 2.714.
In its September 24, 1992, Memorandum and Order, the i
Licensing Board concluded that the MFP Petition is " deficient in many respects" and
"[i]n particular, it fails adequately to demonstrate that MFP has standing."
Memorandum and Order at 4.
The Licensing Board did not rule to that effect, however, in order to allow the Petitioner, in accordance with 10 C.F.R. S 2.174 (a) (3) and (b) (1),
an opportunity to file a
supplemental petition demonstrating standing and proposing contentions.
I B.
Limited Scope of CP-Recapture Amendment Proceedina l
MFP's original Petition demonstrated Petitioner's failure to appreciate the nature of the Proposed Amendment and the scope of W
" Pacific Gas'and Electric Company's Answer to Request for Hearing and Petition to Intervene,"
September 4,
1992
(" Answer").
F "NRC Staff Respon?e to San Luis Obispo Mothers for Peace's Letter Request for Hearing," September 8, 1992.. --
this proceeding.
As discussed in PG&E's Answer to that.Pe'.ition, MFP seeks to reopen and relitigate issues previously_ reviewed by the NRC-at the time the original-licenses for DCPP'were issued.
MFP also seeks to raise various-operational matters and generic issues completely lacking a factual nexus either to DCPP or the Proposed Amendment.
In its Supplemental
- Petition, MFP continues to misapprehend the fundamental nature of the license amendment at issue in this proceeding.
MFP attempts to broadly frame the scope of this proceeding as follows:
The question in this case is whether Diablo Canyon Nuclear Plant should be allowed to operate it all-for 13 to 15 additional years beyond its statutory license term, not whether some minor change to its existing operation should be-approved, l
i Supplemental Petition at 3
(emphasis-in
- original, footnote cmitted).
. Petitioner then asserts that "the-Diablo Canyon construction period recapture proceeding -is most similar to a proceeding for the initial licensing of a facility....." Id. at 4.
Both _ descriptions are incorrect.
-The license amendment-at issue would not authorize operation of DCPP "beyond its statutory license term, " as claimed by -. Petitioner.
Nor is the. amendment proceeding "similar to a proceeding for initial-. licensing."
The Proposed Amendment is an administrative change to the~
license and involves no physical ' change in plant -equipment or operating procedures. The proposed 40-year term is consistent with Section 103.c of the Atomic Energy Act of 1954, as amended ("1954 L
.....L.,
n-..
Act"),D' with NRC regulations codifled at 10 C.F.R.
S 50.51, and with the license term now applied routinely in numerous other 4
licenses and license amendments issued by the NRC for nuclear power facilitics.
As discussed in PG&E's prior Answer, the 40-year term requested in this Proposed Amendment also is consistent with the original engineering, design and licensing bases for DCPP.
Contrary to Petitioner's frequent assertioas,U' PG&E presently is not seeking to renew the DCPP operating licenses.
l Accordingly, this is not a license renewal proceeding '.
Since M
1982, the NRC routinely has issued full-term operating licenses for a term of 40-years calculated from the date of. the operating j
license.
The Commission also routinely has granted license amendments to the holders of earlier operating licenses changing the license expiration date to a date 40 years after the issuance of the operating license.
These license amendments are commonly i
referred to as " construction period recapture" ("CP-recapture")
amendments.
l ut p_ee 42 U.S.C.
S 2133.c, which reads as follows:
e Each such
[Section 103]
license shall be issued for a specified period, as determined 4
by the Commission, depending on the type of activity to be licensed; but not exceeding forty years, and may be renewed upon the expiration of such period.
D' See suora note 7.
E' Part 54 of the Commission's regulations specifically addresses
~
the subject of license renewal, Lam, authorization for plant operation beyond the 40-year statutory term.
In contrast, the Proposed Amendment is authorized under 10 C.F.R. SS 50.51 and 50.91.,
6
Q Petitioner sould have the Licensing Board broaden the scope of this proceeding to involve initial licensing and license renewal issues.
Underlying each of HFP's contentions is an obvious goal -- to litigate issues of plant operation already addressed by the existing plant licensing basis (and unaffected by the Proposed Amendment),U' to prematurely raise issues germane to license 4
renewal, and to address matters otherwise beyond the scope of the requested license amendment.
For this reason alone, and as j
explained in greater detail below, Petitioner's contentions are legally inadmissible.
- Finally, Petitioner avers that this proceeding is
" premature" and the application "should be made at a time closer to when the decision must be made, thus allowing time to clarify and resolve numerous matters."
Supplemental Petition at 1.
On this a
basis, MFP proposes that the CP-recapture process for DCPP be postponed until the year 2000.
M. at 2.
Petitioner does not and cannot cite any authority in support of deferral.
This is not surprising, as neither the 1954 Act nor NRC regulations establish temporal limitations on the filing and disposition of license amendment requests.
Pursuant to 10 C.F.R.
S 50.92, the NRC is authorized to issue requested license amendments upon making a M'
Such matters were subject to NRC review and approval during initial licensing, and are subject to ongoing regulatory oversight (including the NRC's routine inspection and enforcement program, and 10 C.F.R. S 2.206).
, I
final "no significant hazards considerations" determination.W
':, ?
Petitioner's request for delay should be rejected.C' C.
Threslipld _ Lor Admission of Contentiolla As the Licensing Board pointed out in its Memorandum and Order at 4,
contentions are currently subject to "much more stringent (admissibility) requirements than they once were." To be admissible, proposed contentions must now meet the detailed aasis and specificity thresholds provided in the Commission's revised requirements of 10 C.F.R. 5
- 2. 714 (b) (2).
Admissibility of contentions is then governed by S 2.714 (d) (2), which provides that the Licensing Board shall refuse to admit a contention if:
(1)
The contention and supporting material fail to satisfy the requirements of paragraph (b) (2 )
of this action; or (ii) The contention, if
- proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief.
The Commission's pleading rules fundamen sily require that a proposed contention address, and raise, a genuine issue with respect to some matter pertinent t.g the application at issue.
The See infra Section III, discussion of proposed Contention X.
E' Petitioner's stated basis for deferral ic new informa tion that night become available between now and expiratic:
of the current DCPP license term (calculated on the basis of the pro-1982 statutory interpretation).
- However, speculation concerning future developments is hardly a basis for deferring a routine, administrative change.
Any new safety information that might become available during the life e.f the plant will, of course, be addressed by PG&E and the NRC, regardless of the length of the license term, in conformance with the licensing basis.
Moreover, new information not acted upon could form the basis for a request for enforcement action pursuant to 10 C.F.R. S 2.206. _
1 i
amended rules require a shosing that "a genuine dispute exists with the applicant on a material issue of law or f act."
10 C.F.R.
- 2. 714 (b) (2) { iii) (emphasis added).
Further, a contention will nat be admissible where "if proven, (it) would be of no consequence in the proceeding because it would not entitle petitioner to relief."
10 C.F.R.
S 2.714 (d) (2).
The revised threshold showing required for the admission of contentions did not alter the longstanding rule that proposed contentions must fall within the scope of the f
issues set forth in the notice of hearing.
Egg Vermont Yanket, 31 NRC at 91; Public Serv. Co. of Indiana. Inc.
(Marble Hill Nuclear Generating Station, Jnits 1 and 2), ALAB-316, 3 NRC - 167,_
170 (1976).
Egg also li.11EQDsin Elec. Power Co.
(Point Beach Nuclear Plant, Units 1 and 2), AIAB-739, 18 NRC 335, 339 (1983).U' In our the & pplemental Petition offers proposed contentions that t
- vase, fail to address material matters that could warrant relief in this proceeding.
'I Apart from the requirement that a proposed contention raise a specific issue within the scope of the proceeding, there j
must be a f actual basis to demonstrate that the issue is " genuine."
i In the Supplementary Information accompanying the amendment to 5 i
2.714,H' the Commission emphasized that the revisions " raise the threshold for the admission of contentions to require the proponent of the contention to supply information showing the existence of a I
M' Sig 54 Fed. Reg. at 33,169-171 (revised rules did not alter j
pro-existing case law).
D' Isl. at 33,168.
l,
.--.--,,~.-,.-.----,-..,---.:.-,.u..---....,-.__
-. - - ~ - -.-. -,--.
genuine dispute with the applicant on an issue of law or f act."
54-Fed.
Reg. at 33,168.
The Commission further emphasized that contentions cannot be admitted when unaccompanied by supporting facts.
M.
at 33,171.
The revised rules on admission of contentions therefore require precision in the contentica pleading process to ensure that a proposed contention is specific and has factual support.&
NRC case law addressing the admissibility of contentions prorosed under S 2.714, as revised, manifests the Commission's intent that this rule be strictly applied.
In Arizona Pub. Serv.
A (Palc Verdo Nuclear Generating Station, Unit Nos.1, 2, and 3),
LBP-91-19, 33 NRC 397, 407 (1991), the Licensing Board adopted a liberal interpretation of 5
2.714(b),
and -applied rules of
~
construction to imply a challenge by a petitioner when none wes explicitly stated.
On appeal, Arizona Pub. Serv. Co. (Palo Velde Nuclear Station, Unit Nos.
1, 2 and 3), CLI-91-12, 34 NRC 149 (1991), the Commission stated its intent that 5 2.714 (b) (2) (1)-
(iii) be interpreted strictly:
"If any one of these requirements is not met, a contention it.ust be rejected."
34 NRC at 154 (citing the Supplementary Informe. tion, 54 Fed.
Reg.
at 33,171).
The Commission further stated:
These requirements are designed to raise the Commission's threshold for In Union of Concjltrned Scientists v.
United States Nuclear Reculatory Comm'n, 920 F.2d 50 (D.C. Cir. 1990), the Court upheld the NRC's revisions to S 2.714, compared S 2.714 (b), as amended, to the prior version, and confirmed that "[t]he new rule perceptibly heightens ch(e) pleading standard" for contentions.
M. at 52.
.-... -.. - - _ - _.. _ _.. - - ~_-- - - -
i i
admissible contentions and to require a c' ear statement as to the basis for the contentions and the submission of more supporting information and references to specific documents and sources which establish the validity of the i
i contention.
Egg 54 Fed. Reg. 33168, 33170 (August 11, 1989).
34 NRC at 154 (emphasis added).
As discussed in Section III below, Petitioner has in some cases alleged facts in support of its contentions; facts which do not, on their face, provide a logica?
basis for the asserted conclusions.
These cited facts, therefore, cannot satisfy the Commission's strict requirement that the basis for a contention be adequate to show a genuine issue.
III. ADMISSIBILITY OF PROPOSED CONTENTIONS Contention It Maintenanco and Surveillangg PGGE lacks a suf ficiently ef fective and comprehensive wurveillance and maintenance program.
l In propot7d CC.ttention I, Petitioner frames a three-step argument, consisting of two premises and a conclusion:
(1)
"PG&E has had a consistent and chronic pattern of poor maintenance and surveillance practices, thus demonstrating that its maintenance and surveillance program is neither adequate nor effective to "~ ovide a reasonable assurance of safe operation."
Stypienental Petition at 12-13.
(2)
"(T]here. is a great likelihood that PG&E's surveillance prograu will continue to fail to detect safety-related problems."
Petitioner bases this prediction largely on the reasoning that even "if PG&E detected a problem, it could not be counted upon to act in a timely f ashion, due in part to the f act that PG&E does not get paid when the plant is not prodacing electricity;"
i.e.,
due to performance based pricing.
Id. at 6, 13
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(3)
Therefore, "PG&E is unable to demonstrate reasonable assurance-that operation of the plant beyond the date for which operation was originally approved will provide adequate protection to the public health and safety."
Id. at 6.
As explained below, Petitioner's proposed Contention I must be rejected _because it relates to an issue outside the scope of this proceeding,
- namely, the adequacy -of the formal DCPP Maintenance and Surveillance programs.
The main elements of these program 6 have been previously approved by the NRC and included in the existing plant Technical Specifications and licensibg basis.
Moreover, even if the programs were subject to litigation, the proposed contention lacks adequate specificity in, and basis for, the assertion of a gitar===stic breakdown in maintenance and surveillance at DCPP.
As such, proposed contention I fails to raise an admissible itaue.
1.
The Maintenance and Surveillance Programs Are Outside the Scone of_.This Proceedina As discussed in Sections II.B and II.C above, the present proceeding is fundamentally-limited: by the scope of the Proposed Amendment.
Consistent with the DCPP licensing basis,-applicable Technical Specifications and NRC regulations, PG&E has established programs for maintenance and surveillance of safety-related equipment - at DCPP.U' The purpose of-theres maintenance and surveillance programs is to ensure that significant degradation of
-H' Along with normal Technical Specification surveillances, these include the Inservice Inspection ("ISI"). Program, Inservice Testing ("IST") Program, Environmental Qualification ("EQ")
Program, and Maintenance Program.
San Proposed Amendment, S 4.2.3 at 5. - ___
(
plant equipment will be promptly identified and corrected throughout the 40-year designed operating life of the plant.
These programs apply whatever the license terms may be -- the original period or the period included in the normal, recaptured, 40-year license.
Proposed Amendment, 5
4.2.3 at 5.
An adequate maintenance and surveillance program is capable of keeping necessary plant components operable, despite degradation that might occur before, or as the result of, plant operation.
Sfa Vermont Yankee, 31 NRC at 107.
Maintenance and surveillance is a routine operational 4
matter.
The main elements of the DCPP Maintenance and Surveillance programs were subject to NRC 19ybn Mi a proval prior to issuance of the operating licenses and wrc wtsjve 'n the existing plant licensing basis.
The Proposed Amandaent would make no change in these programs at DCPI.
Components and f.ystems do not age at a uniform rate, nor are they designed for an exact lifetime (40 years or otherwise).
The purpose of maintenance and surveillance is precisely to prevent problems, detect and correct problems, and to ensure that systems continue operating properly for however long the plant continues to run.
If the Maintenance and Surveillance programs are adequate today, it is only reasonable to presume them adequate for the previously analyzed and projected 40-year operating life of the plant.U' D'
When it adopted the new license renewal rule, 10 C.F.R. Part 54, the NRC concluded that, "with the exception of age-related degradation unique to license - renewal, current regulatory processes are sufficiently broad and rigorous and that these (continued...) [,
This proceeding does not constitute a forum in which to relitigate issues germane to the initial issuance of operating licenses.
Eg.g Section II.B supra.
Petitioner has not, and cannot, allege that this license amendment in any way changes or modifies DCPP Maintenance and Surveillance programs.
Because CP-recapture does not impact the existing
- programs, nor undermine their operation or effectiveness, the programs cannot be relitigated in this proceeding.u' 2.
Proposed Contention I Lacks Specificity in, and Bases
- for, the Assertion of Failure of Maintenance and Surveillance Procrams at DCPP Even assuming arouendo that PG&E's implementation of its maintenance program is subject to litigation in this CP-recapture proceeding, Contention I as proposed is still not admissible.
At a minimum, individual maintenance practices cannot be subject to D'(... continued) processes generally provide reasonable assurance that extended operation of existing plants would not endanger the public health and safety and would - not be inimical to the-common defense and security." 56 Fed. Reg. 64943, 64950 (December 13, 1991).
By comparison, " aging" experienced during a recaptured license term is addressed by broad and rigorous regulatory processes and licensing basis requirements.
DCPP structures, systems and components are either designed and analyzed for at least a 40-year operating. life, or are subject to repair and replacement under the maintenance and surveillance programs approved when the plant's initial operating licenses were
- issued, n'
Isolated problems alleged to exist with implementation of individual DCPP maintenance and surveillance practices are,. in actuality, matters for NRC inspection and enforcement review, and are irrelevant to the adequacy of the.overall programs.
If maintenance practices appear contrary to NRC requirements, the appropriate forum in which intervenors may seek relief is the enforcement forum defined by 10-C.F.R. 5 2.206.
litigation here absent some specificity in, and programmatic basis for, the assertion that future significant deficiencies in the overall maintenance program may occur during the recaptured license period.
Absent such a programmatic tie, individual isolated incidents of minor significance are immaterial to an amendment related to future operation.
However, while proposed Contention I asserts that PG&E's overall maintenance program is ineffective, there is no specific programmatic problem alleged and insufficient basis provided to support the sweeping conclusion.u' As factual support for the alleged overall inadequacy of PG&E's maintenance program, Petitioner lists some unrelated items and findings pulled from NRC inspection reports or Licensee Event Reports, some of which involve maintenance and some of which do not.u'
- However, none of these maintenance-related items or D'
In this regard, compare the programmatic-based contention proposed by the State in Vermont Yankee, which asserted that:
the Licensee's maintenance program depends "more on the stability of maintenance staff, their skill in their professions, and their knowledge of plant system characteristics.
than on formally and clearly established management controls."
y3mnont Yankee, 31 NRC at 107.
In contrast, MFP's contention is general and the-basis statement focuses on individual, recent occurrences, rather than on a programmatic problem, as alleged.
Moreover, Vermont Yankee was not decided on the basis of the amendments to S 2.714, which made the threshold for admissibility much more stringent.
D' The
( Augus ;
3, 1992)"
relating to inadequate instructions to-operators on the use of positive displacement charging pumps is, on its _ f ace, not part of l
maintenance p3I an.
It in fact relates to the failure of PG&E to provide adequate instructions to operators on the use of a (continued...)
i i
findings include a concitsion -- or facts to support a conclusion
-- that PG&E's.overall maintenance program is inadequate or is not properly functioning.
- Rather, the cited items are isolated i
i I
operational occurrences.
No finding or fact cited by MFP challenges the overall effectiveness of the DCPP program, and, I
therefore, nothing offered provides the basis for the assertion that there is a " consistent and chronic pattern of poor maintenance and surveillance practices," as claimed by MFP.
Supplemental Petition at 12.
Petitioner has neither identified nor specified any common thread that would purportedly tio these events together, and none is clear in the documents cited.
Absent such a connection, individual occurrences, all recent in
- vintage, certainly are not subject to litigation in the context of an amendment related to future operation.W I
3(... continued) piece of equipment during a time when the equipment was legitimately out of service awaiting scheduled maintenance, and when adequate compensatory measures were in effect.
Likewise, "NRC Inspection Report No. 92-14--(June 5,-1592)" is on its face unrelated to maintenance practices; it in fact relates to a failure - by construction personnel to have appropriate written instructions in connection with a-certain assembly activity during pre-operational installation of the new sixth emergency diesel generator at DCPP. Because neither of these incidents relate to - the maintenance program or practices, they do not echstitute sufficient supporting basis for the prcposed contention and will not be. addressed further in this discussion.
By analogy, see Union Elec.
Co..
(Callaway-Plant, Unit 1),
ALAB-740, 18 NRC 343, 346 (1983)
("In - any project - even-remotely approaching ~ in magnitude and complexity the erection of a nuclear power plant, there inevitably -will. be some construction defects. tied to qualitu assurance lapses.")
Likewise, individual incidents of poor ma.tntenance practices, or "..uidents of problems in fact uncovered by a_functiuning (continued...)- 1 l
1.,. _:--.._,-._.-_-
In an attempt to support its assertion that the NRC has
" repeatedly" citod PG&E for " slow response to maintenance problems," MPP makes multiple references to what was in fact an isolated event related to PG&E's recent maintenance of a single component, backdraft dampers in the plant's Containment Fan Cooler Units ("CFCUs").
Although PGGE agreed with the NRC that its maintenance activities 1D this carticular instance were inadequate, the NRC in fact found no programmatic deficiency or breakdown in PG&E's o"erall maintenance program, and declined to undertake escalated enforcement action against the licensee as a result of the event.
Instead, the NRC cited PG&E for Severity Level IV violations.
Under the NRC's Enf orcement Policy (10 C. F.R.,. art 2, Appendix C), a Severity Level IV violation by definition is a "less significant" violation and does D91 constitute a "(b]reakdown in the control of licensed activities."
14., Supplement I, " Reactor
/
Operations," paragraphs D.1, C. 8. U' The other Notice of Violation F(... continued) surveillance program, cannot on their face be found to be an indictment of the entire program.
Egg also Facific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-756, 18 NRC 1340, 1344-345 (1983)
(programmatic, as opposed to
- isolated, failures in construction quality assurance are germane to plant's capability of being operated safely).
The 1954 Act provides only that a nuclear plant be operated in a manner which provides reasonable assurance of the protection of the public health and safety, not a standard of absolute protection.
E' MFP also quotes, out of context, statements by NRC officials made in connection with the NRC enforcement conference on this matter.
The statement by K.
Perkins refers to alleged deficiencies in engineering assessments of - degraded plant conditions (valve 1FCV-95) and design basis reconstitution issues (Reg. Guide 1.97), not to maintenance deficiencies.
(continued...).
referenced by MFP
(" Notice of Violation (February 28, 1992)")
likewise was only Severity Level IV, and therefore does not provide a basis for a finding of any programmatic deficiency in PG&E's maintenance program.
Also in contrast to the Petitioner's claim, when the focus is properly placed on the DCPP program, rather than on individual events, the picture is much clearer.
Overall, DCPP has established an cutstanding safety and operating record since issuance of the initial operating licenses.
As stated in Section I
- above, this outstanding performance record merited NRC commendations as part of the NRC's semi-annual review of licensee performance in February 1992 and again in June 1992 (Attachments A and B).
As also discussed earlier, the NRC has specifically recognized the overall high quality of the Maintenance and Surveillance programs at DCPP.
The NRC's SALP review board has judged PG&E's performance in Maintenance / Surveillance to be a Category 2 (a " good level of performance") in each of the last three SALP assessment parlods.H' And even more
- recently, Inspection Report 92-22, dated September 25, 1992, covering the period July 14, 1992, through August 24, 1992, concluded:
Normal maintenance and surveillance activities observed by the inspectors appeared to be well thought
.out and deficiencies properly dispositioned.
Licensee H'(... continued)
The statement by J. Martin refers to quality control issues, not to maintenance practices.
E' Eqn suora note 4.
4 l
operations and maintenance personnel appeared professional and dedicated la accomplishing their work Training of licensed and non-licensed operations personnel appeared to have been well timed and as realistic as possible NkC Inspection Report No. 92-22, September 25, 1992, " Summary," at 1-2.
This part of the officjal records of the NRC, conspicuously omitted by Petitioner, is indeed far more relevant to the matter at hand.
These assessments, by definition, focus on the croarammatic issues of apparent concern to MFP.
They lead to a conclusion completely different from the one suggested by Petitioner.
Moreover, all of the routine incidents and findings cited by Petitioner in its basis statement have been resolved as regulatory matters. Attachment C hereto provides a cross-reference to PG&E's and/or the NRC Staff's close-out of each issue.
Petitioner has failed to show how a n
one of these isolated matters, resolved for operational and regulatory purposes, could lead to a problem during the recaptured period, many years hence.
It is evident that Petitioner has ignored its " 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."
Duke Power Co.
(Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in car _ti on other arounds, CLI-83-19, 17 NRC 1,041 (1993);
Duquesne Licht h (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393,
~
412 (1984).
All of the data and performance assessm'lt' discussed above are included in publicly available documents.D Turning now to the second premise / basis underlying Petitioner's conclusion that DCPP has programmatic maintenance and surveillance difficulties, it too falls far short of the NRC threshold for an admissible contention.
First, Petitioner offers no support for its speculation as to the effect of the California Public Utility Commission ("CPUC") settlement and its purported correlation to the " great likelihood that PG&E's surveillance program will continue to fail to detect safety-related problems."
Supplemental Petition at 13.
This is simply a
- bald, unsubstantiated assertion. Moreover, MFP alleges no specific f acts linking the overall ratemaking for the plant to the scheduling or implementation of any particular maintenance task.
Petitioner's argument is also completely irrelevant and precluded as a matter of law.
i Financial issues are outside the scope of this proceeding.
Ega, L_g2, 10 C.F.R. S 50.33(f).
In promulgating its financial qualifi--tion rules in 1984, the NRC eliminated any financial qualifications review for electric utilities, such as D'
In Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC 163 (1991), the Licensing Board rejected " bald conclusory allegations" as contrary to the Commission's pleading requirements.
34 NRC at 168.
Specifically, the Licensing Board addressed the requirement for specificity, in light of the availability of information.
According to the Board, "(t]here is no reason Petitioners i
l could not analyze or take account of information in the public record to frame a contention having the required specificity.
Id. at 176.
... ~
)
PG&E, in connection with NRC operating licenses.
The NRC found that for electric utilities there is no proven link between i
financial qualifications review and safety, given the assumption that adequate funding will be available for safe operntion (or a
that, in the absence of funds, plant operation will be stopped).
SAQ conerally 49 Fed. Reg. 35,744 (1904).
The present proceeding j
is not 4 proper forum in which to challenge the rule, the i
applicability of the rule to DCPP, or the CPUC settlement approving l
DCFP's ratemaking.
In any event, contrary to MFP's suggestion, NRC policy i
expressly f avors long-term economic performance incentives such as those containeo in the ratemaking for DCPP.
Sag " Final Policy Statement, Possible Safety Impacts of Economic Performance j
Incentives," 56 Fed. Reg. 33,945, 33,946 (1990) (DCPP ratomaking "provides PG&E with an economic incentive to ensure that the plant 4
~
operates well over many years.
The Diablo Canyon settlement does not rely on short-term performance measurements with sharp thresholds and does not use SALP scores -- features that the NRC l
has identified that may adversely af fect the public health and 4
safety."j.
In sum, proposed contention I fails to allege a specific nrocrammatic maintenance problem with a factual nexus to the Proposed Amendment.
Moreover, because the premises purportedly supporting the broad conclusion of proposed Contention I themselves lack an adequate
- basis, Petitioner's conclusion is invalid.
Contention I is based on an assortment of routine NRC inspection
. ~
tindings and operational occurrences with no demonstrated link to each other or to the overall effectiveness of the DCPP maintenance and surveillance program.
As a result, the contention fails to raise a genuine dispute regarding a material
- issue, and is inadmissible.
Content;lan II:
Personnel Performance PGEE employees have not proven themselves skilled, reliable, or motivated enough to adequately protect the public safety.
Petitioner's proposed Contention II alleges a pattern of poor and unsafe personnel performance at DCPP, based on a series of individual, isolated operational incidents.P Is. sues of PG&E's technical qualifications were addressed during initial plant licensing, are subsumed jn the existing DCPP licensing basis, and are subject to routine NRC inspection and enforcement processes (including 10 C.F.R. 5 2.206).
As such, the issue raised by this proposed contention is not encompassed in the scope of the Proposed Amendment, and is accordingly not subject to litigation in this proceeding.
For this reason alone, proposed contention II is inadmissible.
In addition, the contention fails for lack of a basis demonstrating a aenuine issue in dispute.
Petitioner's claim that there is a " consistent and repetitive pattern of poor and unsafe personnel performance" at DCPP is simply not true and is not 1
Eg.g Supplemental Petition at 16.
The items identified by MFP on pages 14 through 16 of its Supplemental Petition are
" operational issua.s," i.e., characteristic of plant operation F.
and addressed by the existing plant licensing basis.
]
l 1
supported by the cited material.
None of the incidents cited suggests a sweeping programmatic conclusion remotely close to that i
suggested by Petitioner.
No link is demonstrated between the 4
events and no safety significance is either alleged to exist or is inherent in the cited incidents.
Furthermore, Petitioner has ignored publicly available documentary material evidencing what is,
)
in f act, the excellent performance of DCPP personnel.
As discussed above, PG&E has been awarded two commendations by the NRC for exceller t performance at DCPP which specifically refer to "the dedicated and knowledgeable staff" who are " achieving a high level of safety per f orma nce. "U' -
- Again, this official agency record stands in stark contrast to the unsupported allegations of Petitioner.
Likewise, Petitioner ignores the publicly available SALP history for DCPP.
The last two SALP assessments in the functional area of operations were category 1 ratings.H' Category 1 is j
defined in NRC Manual Chapter 0516', Section 0516-08, to signify that the licensee has " clearly demonstrated superior. performance."
PG&E submits that this level of performance could not be achieved with the "unrelictle," " unskilled," and " unmotivated" pe 'onnel hypothesized out of whole cloth by MFP.
It is evident that Petitioner has taken a one-sided, i
selective approach to the formulation of this proposed contention and ignored. -pedlicly available, significant and material H'
S_qn Attachments-A and B (supra note 3).
U' S_qt supra note 4, l
1- _. _ _. _. _ -. _.. _........ _., _ _ _. _ _ _ _ _ _.... _. _ _. _ _... _ _ -
~
information.U' In ignoring this material, MFP has run afoul of its
" 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, 16 NRC at 468; Beaver Valley, 19 NRC at 412.
It is logical, as well as consistent with fundamental concepts of fairness and judicial economy, to conclude that this " ironclad obligation to examine the publicly available documentary material" includes information both supportive of and contrary to c proposed contention.
Moreover, the Licensing Board, in determining whether Petitioner has indeed raised a genuine dispute as to a material
- issue, is not constrained to accept the stated basis for the proposed contention uncritically.
For example, in a case in which D'
All of the specific items cited by MFP to support this contention either have been closed out by the NRC and/or have been corrected by PG&E and analyzed as having no safety significance.
TLis information is summarized in Attachment D hereto.
Egg NRC Inspection Report 92-01 (February 28, 1952),
l at 8 (close-out of LER 1-91-004-00, loss of offsite power event); NRC Inspection Report 92-05 (April 17, 1992), at 14 (follow-up on personnel error strategy; most items currently on schedule, one remaining item completed end of March 1992);
LER 2-92-002-00, steam flow channel 532 calibration (not safety significant, all corrective actions completed *, / Letter, K.
- Perkins, NRC, to G.M.
- Rueger, PG&E, August 7,
1992 (acceptance of corrective actions in response to IR 92-17, 92-19, CFCU maintenance); Letter, S.
Richards, NRC, to G.M.
Rueger, PG&E, September 18, 1992 (acceptance of corrective actions in response to IR 92-16, improper control of rigging device); NRC Inspection Report 92-20 (August 13, 1992),- at Summary (licensee's response to June 20, 1992, acid / caustic-spill " prompt and comprehensive"); LER 1-92-008-00, missed fire watch (not safety significant)...
~
i l
I 4
the intervenor offered a document reference as the " basis" for a I
contention, the Appeal Board wiote s
[L]icensing boards are expected to 1
take a
thoughtful, albeit non-
{
- merits, review of any
- document, 1
information,
- theory, postulated I
accident
- scenario, etc.,
that is j
claimed to provida the basis for a i
contention.
(Citation omitted.)
This review may even include consideration of the fact that the j
undorpinnings of the document c-which a contention is based havt l
been subsequently repudiated by the j
document's own source.
]
Vermont Yankee Nuc1 car Power Coro. (Vermont Yankee Nuclear Power l
i Station), ALAB-919, 30 NRC 29, 48-49 (1989).
Here, a thoughtful review of the proposed contention and basis reveals that the basis J
itself fails to support the broad conclusory allegation.
When viewed in light of other information of public record, the contention completely failn to raise a genuine issue.
Sgg glag 10 C.F.R. S 2.714(d)(2).
i Ac a
separate aspect of this proposed contention, i
Petitioner speculates
- that, "as the plant
- ages, experienced l
maintenance personnel will retire.
There is no assurance that qualified replacement personnel can be obtained."
Supplementai Pctition at 16.
This aspect of the proposed contention also has numerous deficiencies.
First, it is speculative in nature and lacks sufficient basis.M' Second, this assertjon also is beyond M'
In support of this statement, MFP of fers two sentences-from an Inside NRC article.
The article is generic in nature and does not refer to DCPP or DCPP personnel.
The sentences themselves are speculative, i.e.,
" attracting young people.
ran be (continued...)
_ - _ - _ - - - = _
1 i
the scope of the Proposed Amendment.
Obviously, continued operation of any nuclear plant is premised on the availability of i
qualified personnel.
Regardless of the license term, PG&E (and the i
NRC if necessary) will continue to address this prerequisite to 1
l operation.
- Finally, this issue is precluded by 10 C.P.R.
5
- 2. 714 (d) (2 ) (11) because, even if proven, the assertion would not entitle MFP to relief in this proceeding.
Therefore, all aspects of this proposed contention are 1
inadmissible and must be rejected by the Licensing Board.
Contention III:
Fraudulent Parts PG&E has not taken adequate measures to detect the prosence of fraudulently certified components at DCPP.
Nor has PGGE demonstrated that it is capable of preventing the acquiwition and 4
use of such counterfeit parts in the future.
Failure of such components could cause or contribute to an accident at DCPP.
- Thus, j
NRC lacks reasonable assurance that the plant can safely operata l
beyond its original liceLse period.
In proposed contention III, Petitioner claims that (1)
"the availability of quality spare and replacement parts for (DCPP) in the years after 2008 are (sic) highly questionable," and (2)
"PG&E has not dewonstrated competence in procuring parts with quality control in compliance with NRC regulations."
Supplemental E(... continued) difficult," is not a definitive statement.
Moreover, the article does not attribute the statements to any source and is not specific to DCPP.
Newspaper articles and press i
information have been deemed insufficient bases for proposed contentions in similar situations.
- Sac, e.g.,
Louisiana Enerov Services (Claiborne Enrichment Center), LBP-91-41, 34 NRC 332, 359 (1991)
(newspaper articles found to be "too vague" to support proposed contention); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-3, 29 NRC 51, 57 n.15 (1989) (newspaper " reports themselves make no attempt to connect the incident to plant at issue"). !
.-,,---,.7 y,,.
-.,,m
,3-,
37-,,
-w-,
Petition at 23.
As explained below, the contention must be l
rejected:
it does not present a genuine issue in dispute and is outside the scope of this procebding.
[
First, the basis statement discusses the availability of j
i
" quality spare and replacement parts in the years af ter 2008 I
Supplemental Petition at 23.
This assertion is quite clearly J
speculative in nature and offers no concrete evidence in its a
support.
This promise offered to support the contention is
}
therefore completely lacking a-basis itself.
As such, it cannot i
serve as a basis for an admissible contention.
Second, there is no genuine dispute as to most of the discussion -- and purported basis -- provided by MFP in support of proposed Contention III.
PG&E recognizes that there has been and i
i continues to be regulatory and industry activity to detect the
]
presence, and prevent the acquisition, of fraudulently certified components at commercial nuclear power plants.
Sag acnerally Supplemental Petition at 17-21.
Moreover, as is discussed below, i
PG&E is in fact responsible for identifying two instances of fraudulently certified parts. The issue of assurin9 the legitimacy 4
and quality of parts will continue to be the focus of industry and 1
NRC initiatives whether or not the Proposed Amendment is granted.
Procurement of quality parts is an operational issue to be addressed throughout the licensed term of plant operation.
- Hence, there is no genuine disputo with respect to a matter material to the present proceeding.
Sie 10 C.F.R.
S 2.714 (b) (2) (lii).
. i
i i
Petitioner generally
- observes, based on hist.orical conditions, that "(c)ounterfeit parts have.
been found in use at Diablo Canyon Nuclear Plant."
I,d. at 21.
In fact, in two instances (among many thousands of procurements done on an annual basis at DCPP) P(;E disecyered fraudulent and counterfeit parts
(" Square D" circui. breakers and Vogt valves).
These examples, however, cannot seru as a basis for challenging the effectiveness of PG&E's quality procurement program for safety-related parts.
In both instances the parts involved were designated for non-safety applications and, thus, did not go through the company's more rigorous Appendix B procurement process.
With regard to the fraudulent Vogt valves, these valves had been installed at DCPP in a non-safety application and, after j
a period of use, began to exhibit some leakage.
In PG&E's ensuing investigation, the fraudulent pedigree was uncovered and repreted to the NRC.
This ultimately led to indictments and convictions of the principals involved.
Sfa NRC Information Notices 88-48 and 92-22.
As for the counterfeit Square D circuit breakers, during the receipt inspection process and orlor to installation, certain abncrmalities were noted by PG&E and Square D.
Upon further investigation the fraudulent pedigree of the parts was uncovered.
i NRC was notified by PG&E and, upon further investigation by NRC and the U.S. Department of Justice, indictments were issued that again led to the conviction of several rcsponsible individuals and entities.
Egg NRC-Bulletin 88-10 (November 22, 1988), Supplement
. 1
-<--,--w--y-
,,-w,ww,-.,,,s.w-,.--3,-c.-,m.er,.snmm,,,_y_,,-
-,,..,e-,m,.,-p-%-.,,.-r-
..,,,.mqy,,,,w,,,,,-,,,.-..,y,y,,.w,%,,-._
.,,.w,pr-r 9 e
,w y
1 (August 3,
1989);
NRC Information Notice 90-46 (July 16, 1990).d' Therefore, contrary to MFP's assertion, PG&E has demonstrated the ability to discover counterfeit parts and has been a positive factor in ferrating out fraudulent parts and has benefited both industry and NRC through its vigilance. The history cited by the Petitioner does not give rise to a genuine dispute over a material issue of law or fact in this proceeding.
The events cited in fact demonstrate the proper functioning of the normal, expected regillatory and criminal processes.
The Proposed Amendment will not change current or future procurement programs and initiatives.
The proffered basis does not reflect on a future concern and simply has no bearing on the Proposed Amendment.
Also in contrast to Petitioner's stated basis for this contention, NRC's Procurement Assessment Report (50-275/91-201 and 50-32a/91-201 (July 22, 1991)) gave a favorable overall assessment of PG&E's program and specifically noted with regard to commercial grade dedication activities that "(PG&E's) _ receipt inspection program to detect, report, and-disposition fraudulent products appeared adequate."
obviously, _ PG&E like all other nuclear utilities, must remain vigilant now and in the-tuture regarding such activities.
However, MFP has not shown that PG&E's current programs are unacceptable.
M' Sag also PG&E to NRC Letter.DCL-88-084 (April 14, 1988).
1
]
For all of these reasons, proposed contention III is not admissible in this proceeding.
\\
j Contenti__on IV:
Gsneric Aoina Age-related degradation of systems, structures, and components unacceptably increases the risk of accidents during the extended period of operation.
Proposed Contention IV is virtually identical to the generic, conclusory, and unsupported " aging" contention which the Vermont Yankcq Licensing Board - summarily rejected.
Sag Vermont i
Yankee, 31 NRC at 105-07.
Specifically, MFP states that it "is convinced that age-related degradation of components and systems at (DCPP) will increase the risk of (an) accident during the extended period of operation envisioned unAgr a
l i c_q u a,
renewal."
Supplemental Petition at 28 (emphasis added).
- However, as discussed in Section II.B above, Me Proposed Amendment does not seek a license renewal, but rather, only requests operation of DCPP for the normal 40-year term authori::ed by the 1954 Act.M' The alleged impact of age-related degradation during a renewed -- as i
opposed to recaptured term of plant operation is beyond the scope of the Notice and without nexus to the Proposed Amendment.
Therefore, proposed Contention IV is inadmissible as a matter of l
law.
i M'
This proposed contention perhaps best illustrates how MFP has.
l misstated the nature of this proceeding.
As more fully explained in Section II.B above, and contrary to Petitioner's assertion, the issue posed in this proceeding is ag_t whether DCPP should be allowed to operate for 13 to 15 years bevond it;.g statutory license term.
Contrast Supplemental Petition at 3.,,
,,,y
.y.m--
_.,--.r-
-, -.., ~,..
- ~
b e
--->-e----+
+- -
The basis prof f eroc'. by MFP in support of proposed Contention IV is predicated, to a
significant
- degree, on documentary material which may be relevant-to license renewal, but which simply is not relevant to this proceeding.
The 1989 GAO report quoted by MFP, " License Renewal Questions for Nuclear Power Plants," (GAO/RCED-89-90), " addresses problems confronting aging nuclear plants by examining the (NRC's) program to develop L license renewal policy and accompanying regulations, GAO/RCED-89-90 at 1.
Similarly, the aging research referenced by MFP in GAO/RCED-91-207, "Research Efforts Under Way to Support Nuclear Power Plant License Renewal," is relevant to the issuance of renewed operating licenses.
License renewal, unlike CP-recapture, pertains to plant operation beyond the original 40-year statutory term.
Proposed Contention IV also specifically notes that aging.
would become a safety concern specifically if aging effects were to 3
"go undetected or unchecked."
Supplemental Petition at 24.
" Aging" is defined in the GAO report cited by MFP as "the cumulative degradation of a structure, system,- or component-that occurs, if uncheckt$r over time."
GAO/RCED-89-90 at 20 (emphasis added).
Maintenance and Surveillance programs at DCPP operate to ensure that such " cumulative degradation" will not go " undetected" or schecked" during the current license term and-the requested recaptured license term - as - well.
19.3 Proposed Amendment,
-S-4.2.3.3.
DCPP programs to detect and manage the effects of aging and service wear on DCPP's systems will be applieu to plant 1
1 i
1 i
i j
j components throughout the proposed 40-year operating life of the l
plant.
12.2 Proposed Amendment, 5 4.2.3.3 at 7-10.
The DCPP i
j licensing basis does not ignore the need to maintain the plant I
j continuously throughout the licJnse term.
PG&E specifically provides for inspection, surveillance, and monitoring of the plant j
to detect aging effects before the loss of component and/or system function.
Maintenance and component replacement practices also i
j effectiW 1y mitigate the effects of age-related degradation.
This l
l is exactly the rationale used by the-Licensing Board in Vermont t
Yankee fu not admitting a generic, conclusory aging contention.
}
Vermont Yankeg, 31 NRC at 105-107.
i j
The examples cited by MFP on pages 26 and 27 of the i
supplemental Petition on their f ace f ail to provide f actual support 1
for oroposed contention IV.
The maintenance items in the cited i
newspaper article and License Event Reports reaffirm rather than i
l rebut the fact that PG&E's maintenance program is effectively l
detecting and remedying issues before they might. adversely affect the public health and safety.
The unsubstantiated reference to=an anti-nuclear publication's conclusions on reactor vessel embrittlement
(" Myth Busters #7") is entitled to no credibility j
here.E'
- Moreover, there are no anticipated reactor pressure vessel ("RPV") embrittlement problems at DCPP.
PG&E has and will continue to comply.with NRC regulations governing RPV surveillanca and integrity codified at 10 C.F.R.
S 50.61 and Appendix H to 10 ~
I i
4 i
j E'
Eg.g suora note 34.
-?S-
-.~,-...,__...._,,,,-y,,,,,A.,.m,
-_y-~.,.,_l..,_
_.,,,r3._,..n.,-_#_.
_.,m_._m__
,~r,
. ~,., _ _.
C.F.R.
Part 50.3' Regardless of NRC's action h the Proposed Amendment, PG&E will continue to comply with S SL and Appendix H,
and continued plant operation will always be premised upon continued compliance or appropriate NRC licensing action.
A CP-recapture amendment confers no immunity from compliance with otherwise applicable regulatory requirements.H' For the reasons explained al ';ve, proposed Contention IV is well beyond the scope of the Notice in this proceeding.
i I
Petitioner has failed to establish-a demonstrable net.as to the Proposed Amendment, and has failed to demonstrate a specific, I
i genuine issue in dispute with respect to a material matter.
l Thorofore, proposed-Contention IV is inadmissible.
i J
l i
i i
5 l'
M' The projected RT PTS for Units 1 and 2 remain below the S 50.61 screening _ criterion for both 20 and 32 EFPY, which 3
j correspord to the end of the current license and to the end o' the pro,c sed 40-year term of operation, respectively.
Eu PG&E to NRC Letter DCL-92-056 (March 6, 1992).
I l
H' Because CP-recapture amendments do not impact, or exempt
]
licensees from, PTS requirements, the NRC has granted CP-1 recapture amendments to plants even-where exceedance of PTS criteria is projected for sometime in the recapture period.
1
- S_ga, e,c.,
Safety Evaluation by Office of Nuclear Reactor Regulation Related to Amendment No. 132, Commonwealth Edison j-Compeny (Zion Nuclear Power Station, Units 1 and 2),-Docket Nos.-50-295 and 50-304 (January 30, 1992), at 2 ("The Zion licensee was required to submit a revised projection of embrittlement of their reactor vessels by-December 16, 1991.-
3 Since the review and approval of-the_ licensee assessment of projected embrittlement of the. Zion reactor vessels = will be conducted for compliance - with. 10 C.F.R. 50.61, a separate assessment for the ouroose of this proposed amendment will not-be oerformed.") (emphasis added).
4 i
i i
i k
t Contention V:
TNrmo-Lac Thermo-Lag material fails as a fire barrier and, in fact, poses a hasard in the event of a fire or an earthquake.
i i
Proposed Contention V addresses a current issue, generic in the industry, that is not safety significant.
It is an issue l
that will certainly be resolved generically and without regard to the expiration date of the DCPP licenses.
Resolution of this issue is therefore not within the scope of this proceeding.
l Thermo-Lag is a material utilized as a fire barrier at DCPP and a number of other nuclear plants as one element of a carefully engineered, multi-faceted program to protect the plant i
from the risks of fire.
Some NRC licensees have concluded through l
testing that Thermo-Lag does not, in all applications, provide the degree of fire protection originally expected.
SAq, gtq1, NRC Bulletin 92-01, " Failure of Thermo-Lag 330 Fire Barrier System to Maintain Cabling in Wide Cable Trays and Small Conduits Free From l
Fire Damage" (June 24, 1992), and Supplement 1 (August 28, 1992).
However, notwithstanding the ongoing analysis and resolution of issues associated with Thermo-Lag at DCPP and other plants, DCPP can be and is being safely operated.
In correspondence dated October 27, 1992, the NRC Staff specifically accepted key elements of PG&E's response to Bulletin 92-01, Suppl 9 ment 1 for DCPP, finding PG&E's
" selected method of providing fire protection / prevention without reducing the effectiveness of (its) existing fire protection capabilities to be' acceptable."9 9
H. Rood, NRC, to G.M.
Rueger, PG&E, dated October 27, 1992.
.~
i Similarly, in response to a petition recently filed with i
j the Commission pursuant to 10 C.F.R.
S 2.206, the NRC Staff carefully evaluated the issues associated with using Thermo-Lag i
material, including the use of fire watches to compensate for any degradation in the effectiveness of required fire barriers.
Enn NRC Response to S 2.206 petition (Letter from T.
Murley to M.
i Mariotte) dated August 19, 1992, at 3.
The NRC Staf f has concluded that, given compensatory fire watches and other existing fire protection measures, Thermo-Lag degradation does not constitute a current safety risk.U' Petitioner's proposed contention does not establish any f actual nexus between the generic Thermo-Lag issue and the Proposed Amendment.U' The Proposed Amendment simply has nothing to do with i
U' MFP also claims that "Thermo-Lag poses a unique threat to public safety in the event of an earthquake."
Supplemental 4
Petition at 31; ap_q also Supplemental Petition at 29.
This claim, however, lacks specificity and basis, and is immaterial l
to this proceeding.
In fact, there is very little Thermo-Lag at DCPP; it is used in only 11 fire areas subject to Bulletin 92-01, serving there as a fire barrier on seismically-qualified conduits, junction boxes, and other equipment.
It is not used on cabletrays; therefore, any potential cracking during an earthquake would not affect safety-related cabling.
The configurations in which Thermo-Lay is installed provide a seismically-qualified metal enclosure which precludes damage to cables.
C' As a general matter, Licensing Boards should not accept in individual licensing proceedinge contentions which are generic issues, based, For example, on a newly issued Information Notice or a report on the subject.
SSR2 Gulf States Utils. Co.
(River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 772 (1977).
RM her, if an isnue sought to be introduced in a proceeding ts here, a generic issue (e.a.,
involving a subject general applicability to all reactors), a nexus must be established to connect the generic issue to the license application in question.
Pacific Gas and Elec. Co.
(continued...)
i 4
fire protection generally or Thermo-Lag specifically. As discussed in Section II.B above, the Proposed Amendment is neither an initial license nor a renewal license; it doeu not give rise to an open reassessment of all current operating issues. Other channels, such as 10 C.F.R.
S 2.206, exist for that purpose.
Therefore, this co e.antion is outside the scope of the Notice and is inadmissible.
Contention VI:
Hazardpus Materials PGEE's inability to properly store and handle hasardous materials is another indication of the company's inadequate control programs and personnel.
(Contentions I and II.)
PGEE's violations of NRC regulations affects the health of its employees, the local environnent, the integrity of safety-related equipment, and thus the safuy of the gaueral public.
The labeling and pocting findings which are the focus of Petitioner's proposed Contention VI are, again, solely current operational issues which already have been resolved with the FAC.
The handling and storage of radioactive materials and combustibles, etc. is governed by requirements subsumed in the existing plant licensing basis.
These matters are subject to NRC inspection and enforcement throughout the.
- af the plant.
They are not ne proper subject for hearing in this amendment proceeding.
The Proposed Amendment simply does not affect the exi-ting plant licensing basis.
Nor would it exempt PG&E from any existing licensing basis requirements during the recaptured term of 4
operation.
Because there is no nexus between the Proposed Amendment and the operational issues identified in proposed S'(...continvad)
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-87-24, 26 NRC 159, 162 (1987)..
. -.~ -
t i
i I
L j
Contention VI, the contention is not-subject to relitigation-in j
this proceeding. -San Point Beach, 18-NRC at 339; Bailly, 12 NRC at b
565.
For this reason, this proposed contention is inadmissible and must be rejected by the Board.u' t
In addition, the allegation that labeling and posting practices at DCPP have " implications for the integrity of safety-i l
related equipment,"
lacks requisite basis and spec f % ',y.
l Petitioner has failed to identify a sir.gle safety-related coApnent i
subject to the alleged " implication."
Nor has MFP identified any publicly available documentary material supportive of this, or any i
)
other, element of the proposed contention.
Because of the absence of the requisite basis.and specificity, proposed Contention VI is inadmitnible.
}
Contention VII:
Radioactive Waste Storaae a
The Proposed Amendment must be denied because of the unsolved 4
problem of radioactive waste storage and disposal.
l Proposed Conte ition VII raises the generic issue of spent i
fuel storage and disposal, and therefore is outside the scope of-this proceeding.
Pursuant to the NRC's Waste Confidence
)
rulemaking, generic claims regarding the uncertainty or postulated l
unavailability of high level radioactive waste stocage are precluded from consideration in operating license proceedings
{i generally.
10 C. F.R. SS 51. 2 3,. 51. 53 (a) ; ggg also Vermont Yankee, 4
j.
31 NRC at-94-95 (1990).
The NRC has made, in the Waste Confidence 1
l rulemaking, h generic determination that:
I i
D' S_eg suora legal aspects of response to proposed Contention II.
- l l
i-
,,,,, _..~.-....-..,. -,,.,.. - -
if necessary, spent' fuel generated in any reactor'can be stored safely and without-significant environmental impacts f or._ at- -least 30 -years beyond the licensed life for operation (which may include the term of a
revised. or renewed license) of that reactor.at its spent fuel storage basin or' at either onsite or of fsite independent spent fuel storage installations.-.
There is reasonable assurance that at least one
- mined, geologic repository Vill be available within the first quarter of the twenty-first century,.
and sufficient repository
'apacity will be available winin 30 years beyond the licensed life for operation _of m reactor to dispose of the commercial high-level waste and spent-fuel originating in =such reactor and generated up to that time.
10 C.F.R. S 51.23(a)(emphasis added).M' In addition to conclusory allegations regarding generic spent fuel disposal, Petitioner also alleges in:this contention that current storage of spent fuel at'DCPP is unsafe over the long-l:
"(g]iven the term.
Proposed Contention VII asserts that vulnerability of Diablo Canyon to a serious earthquake, longer-term E'
gas also 44 Fed. Reg. 61,372 (O'ctober 25, 1973); 49 Fed. Reg.
l 34,658 (Aug. 31, 1984);-55 Fed.' Reg. 38,472 (Sept. 18,-'1990).
l Egg aenerally Minnesota v.
United-States' Nuclear-Reaulatory l-Comm'n, 602 F.2d 412 ( D. C. Cir. - 19 7 9 ). 333 also Baltimore Gas -
and Elec. Co. v. Natural Resources' Defense Council. Inc., 462 U.S.-
87, - 103 S.
Ct.
2,246, 2,254 (1983): (administrative l
efficiency and consistency of NEPA decisions are furthered by.
a-generic determination. without needless repetition _lof litigation in individual proceedings) ;- Ecoloav-Action v.
United States Atomic Enorav Comm'n, 492 - F.2d 998,- 1002 n.5 (2nd Cir. 1974).
t l
i i
i i
spent fuel pool storage is not a safe alternative for Diablo Canyon i
j Nuclear Plant."
Supplemental Pet.ition at 37-38.
This portion of 2
Contention VII raises an issue unaf fected by the Proposed Amendment -
3 and outside the scope of the proceeding.
As evidenced by initial i
j plant licensing and continued operation, the existing design and 1
j licensing bases of the facility, including its spent fuel pool, adequately protect the public health and safety.E The design basis of the facility for seismic events has been reviewed and approved by the Commission previously, and is not dependent upon i
the term of the license.F i
i j
Petitioner specifically calls into question the adequacy of the existing design and licensing bases of the spent fuel pool l
when it alleges that the integrity of the DCPP spent fuel pool l
liner, as defined by "10 CFR 1-1-92"
[ sic) is " suspect."
i Supplemental Petition at 37.
Nowhere does MFP indicate where i
to find this unknown regulation, nor does MFP provide any i
facts demonstrating why the liner is suspect during the recaptured license term but not now.
The only support offered by MFP is a reference to the design and operation of the spent fuel pool liner at Humboldt-Bay Power Plant during earthquakes, not DCPP. Not only is such a reference factually irrelevant, it is legally precluded. MFP has alleged no f acts to show that the DCPP spent fuel pool liner is identical to that at Humboldt Bay Power Plant.
In fact, the DCPP liner is not only different from Humboldt Bay's, it has been analyzed i
for the design basis earr.hquake even though_the liner is not safety related.
PG&E to NRC Letter DCL-85-306 (September 19, l
1985).
1 E
The NRC reviewed and validated the seismic design basis of-the spent-fuel pool and rejected challenges. thereto not only during initial licensing-out'also in subsequent proceedin'gs.
Pacific Gas and Elec.
Co., ALAB-644, 13'NRC 903 (1981), rev.
l denied, 16 NRC 7 (1982); Pacific Gas and Elec.
Co.,
LBP 1 121, 22 - NRC 849, 854, 871 (1986); SSER 34 to NUREG-0675, l
" Safety Evaluation Report Related to the Operation-of Diablo Canyon Nuclear Power Plant, Units 1 and 2, Docket Nos. 50-275 1
and 50-323" (June 6, 1991).
.a
For the reasons explained above, the generic aspects of proposed Contention VII are proscribed from consideration by NRC regulations and policy, and the aspect regarding the safety of spent fuel storage lacks adequate supporting basis and nexus to the Proposed Amendment.
Contention VII is inadmissible.
Contention VIII:
Emercency Preparedneps Generally The emergency preparedness program for DCPP is inadequate to protect public health and safety.
Petitioner asserts in proposed contention VIII that Emergency Preparedness at DCPP is deficient, and that the Proposed Amendment must be denied, because:
(1) PG&E employees are not adequately prepared, trained, or motivated to effectively protect the public safety in an emergency situation at DCPP; and (2) employees of the County of San Luis Obispo are unprepared to act efficiently in an emergency.
Supplemental Petition at 40.
There is no nexus between this proffered contention and the Proposed Amendment.
The Proposed Amendment does not change the emergency plan, does not af fect emergency preparedness (which is in no way a function of the license term), and does not impact future exercise and drill frequency.
Petitioner's emergency preparedness allegations set forth in proposed Contention VIII therefore reach far beyond the scope of the Notice.U' E'
Petitioner in effect is seeking to raise issues resolved during the initial licensing of DCPP.
As stated previously, the present proceeding is not an opportunity to revisit initial licensing or operational matters.
y publicly available In
- addition, as evidenced b
documentation, the two NRC Inspection Reports (91-15 and 92-15) and f
the April 1,
1992, Federal Emergency Management Agency
(" FEMA")
report cited by MFP both conclude that the DCPP and County emergency preparedness programs are adequate and protect the public health and safety.d' All findings in these inspection reports have been addressed by PG&E and closed out as appropriate by-the NRC.
For example, in the same Inspection Report 92-15 referenced by MFP as support for this contention, the NRC closed out its previous year's finding on protective area recommendations from Inspection Report 91-15.d' Similarly, corrective actions have been accepted by the NRC for the findings contained in Inspection Report 92-15 relating to the 1992 emergency exercise.&
d' NRC Inspection Report Nos. 91-15 (September 20, 1991) and 92-15 (August 3,
1992), at " Summary" ("In the areas inspected, the licensee's emergency preparedness program
_ appeared adequate to protect the public health and safety.
The licensee was found to be in compliance with NRC requirements-within the areas examined during the inspection.");
" FEMA Exercise Report for Diablo Canyon Nuclear Power Plant, 1991 Annual Emergency Preparedness Exercise," ( April-1,1992), FEMA cover letter to NRC (February 27, 1992) (" Based on the results of the August 22, 1991, exercise, the of fsite radiological emergency preparedness is adequate to provide reasonable assurance that appropriate-measures-can be taken offsite to-protect the health and safety of the public in the event of a radiological emergency at Diablo Canyon Power Plant.")
d' Inspection Report No. 92-15, at 2 (August 3,_1992) ("It.was concluded that the revised procedure, - EP RB-10 (Protective Actions Recommendations), dated May 27, 1992, with proper implementation-as observed during this exercise, demonstrated that the open item can be closed.")
F See R.J.
Pate, NRC, to PG&E, dated September 30, 1992. !
m,
In sum, Petitioner has again filed a proposed contention that is beyond the scope of this proceeding.
Proposed Contention VIII must be rejected.
Contention IX:
Emercency Preparedness and Earthcuakes The emergency preparedness program for DCPP is inadequate to protect the public health and safety during an earthquake.
Petitioner's proposed Contention IX asserts that the emergency preparedness program for DCPP is defective because (1)
"it fails to take into consideration the unique and safety-significant characteristic of earthquakes - that they are extremely sudden," and (2) it does not plan for a " simultaneous earthquake
~
and nuclear accident."
Supplemental Petition at 42-43.
- However, principles of collateral estoppel and res judicata preclude consideration of this issue in this administrative proceeding.U' l
The issues raised here by MFP were specifically litigated and resolved in NRC and federal court litigation attendant to initial licensing of DCPP -- litigation in which Petitioner fully M'
United States v. Utah Constr. & Minino Co., 384 U.S. 394, 421-22 (1966); aq.g, e Q., Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2, and 3), ALAB-378, 5 NRC 557 (1977).
Commonwealth Edison Co. -(Braidwood Nuclear - Power Station, i
l Units 1 and 2), LBP-85-11,-21 NRC 609, 620 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986);
Public Serv. Elec. and Gas Co. (Hope Creek Generating Station, l
Unit 1),
ALAB-759, 19 NRC 13, 25 n.40 (1984);
Southern l
California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 695 (1982); Alabama Power Co.
(Joseph M.
Farley Nuclear Plant, Units 1 and 2),
ALAB-182, 7 AEC 210, remanded on other crounds, CLI-74-12, 7 AEC 203 (1974). -.
1 i
I In sum, Petitioner has again filed a proposed contention 1
that is beyond the scope of this proceeding.
Proposed contention l
VIII must be rejected.
a h
Contention IX:
Emercency Preparedness and Earthauakes 1
The emergency preparedness program for DCPP is inadequate to protect the public health and safety during an earthquake.
)
Petitioner's proposed contention IX asserts that the l
emergency preparedness program for DCPP is defective because (1)
"it fails to take into consideration the unique and safety-significant characteristic of earthquakes - that they are extremely sudden," and (2) it does not plan for a " simultaneous earthquake and nuclear accident."
Supplemental Petition at 42-13.
- However, i
principles of collateral estoppel and res judicata preclude consideration of this issue in this administrative proceeding.U' The issues raised here by MFP were specifically litigated 4
and resolved in NRC and federal court litigation attendant to initial licensing of DCPP -- litigation in which Petitioner fully i
E' United States v. Utah Constr. & Minino Co., 384 U.S. 394, 421-
- s_e_g, e,q,, Toledo Edison Co. (Davis-Besse Nuclear 22 (1966);
e Power Station, Units 1, 2, and 3), ALAB-378, 5 NRC 557 (1977).
Commonwealth Edison Co.
(Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 620 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986);
Public Serv. Elec. and Gas Co. (Hope Creek Generating Station, Unit 1),
ALAB-759, 19 NRC 13, 25 n.40 (1984);
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 695 (1982); Alabama Power Co.
(Joseph M.
Farley Nuclear Plant, Units 1 and 2),
ALAB-182, 7 AEC 210, remanded on other arounds, CLI-74-12, 7 AEC 203 (1974). -
a i
-. ~. - - -
party.u' Collateral estoppel precludes participated as a
relitigation of issues of law or fact which have been finally 4
adjudicated by a tribunal of competent jurisdiction.
Toledo Edison, 5 NRC 557; Alabama Power Co.,
7 AEC 210. M' Therefore, Petitioner is estopped from relitigating the earthquake / emergency planning issue in this proceeding M' a
M' See CLI-84-12, 20 NRC 249 (1984); CLI-84-13, 20 NRC 267 (1984);
San Luis Obisoo Mothers for Peace v.
Nuclear Reaulatory Comm'n, 751 F.2d 1,287 (D.C.
Cir. 1984), reh'a cranted, 760 F.2d 1,320 (D.C. Cir.' 1985), aff'd, 789 F.2d 26 (D.C. Cir. 1986), p.grl, denied, 479 U.S. 923 (1986). Egg alga Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-81-33, 14 NRC, 1,091 (1981).
M' With respect to an earthquake-induced accident, the Court of j
Appeals upheld the panel's conclusion that the plant's approved seismic design rendered the probability of an initiating earthquake "so small as to be rated zero."
789 F.2d at 38.
As for a
simultaneous earthquake and j
independently caused
- accident, the Court found the Commission's determination " conclusively" supported by the administrative record.
M.
As the Court recognized, the probability of such independent events occurring simultaneously is demonstrably on the order of one in several tens of millions.
M. at 40.
1 M'
Petitioner cites a
document
- entitled,
" Discussion of Earthquakes and Emergency Planning For Diablo Canyon and j
Discussion of Stay Motion," dated July 30, 1984 -- a document which obviously pre-dates final resolution of the DCPP licensing proceeding.
Supplemental Petition at 41.
The same observation applies to the quote from ex-commissioner
- Bernthal, M.
The Steve Lewis and Richard Hubbard statements cited by MFP are drawn from a newspaper article that addresses Thermo-Lag, not emergency planning.
M. at 42-43; Exhibit B.
Both of the latter statements are unsubstantiated
- and, therefore, lack requisite basis.
They typify the " bald conclusory allegations" rejected by the Board in Shoreham.
See 34 NRC at 168.
Nor has MFP demonstrated that Hurricane Andrew undermines the rationale of the previous Commission and judicial determinations on the seismic issue.
Proposed Contention-IX also should be denied admission on the independent basis that it is outside the scope of the present proceeding. There is no connection between the generic operational issue and the Proposed Amendment. Egg, supra discussion of proposed Contention VIII.
Contention X:
No Sionificant Hazards Consideration PGEE is not justified in their request to extend their operating license for DCPP.
In proposed Contention X,
MFP seeks to litigate the Staf f's proposed no significant hazards consideration determination published in the July 22, 1992, Notice.
Egg 57 Fed. Reg. 32,571, 32,575.
Specifically, Petitioner delineates and attempts to refute each constituent element of the no significant hazards consideration determination, as defined in 10 C.F.R. S 50.92.
As such, the proposed Contention addresses a matter outside of this Board's jurisdiction, and must, therefore, be denied.
Egg 10 C.F.R. S 50.58 (b) (6).
NRC case law on this point is equally clear:
The (no significant hazards consideration) determination itself is not subject to challenge in a license amendment proceeding.
The issue of whether the proposed amendment does or does not involve a significant hazards consideration is not litigable in any_ hearing that might be held on the proposed amendment because, as the Commission has
- observed, the finding is a
procedural device whose only purpose is to determine the timing of the hearing (before or after issuance of the amendment). _ _ _ _ _ _.
1 4
yermont
- Yankee, 31 NRC at 90-91 (citation to 10 C.F.R.
S i
- 50. 58 (b) (6) omitted); Pacific Gas and Elec. C o_._
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1,
6 n.3 (1986), rev'd in cart on other arounds, San Luis Obisoo Mothers for l
Peace v.
United States Nuclear Reculatory Comm'n, 799 F.2d 1268 (9th Cir. 1986).
The proposed contention must be rejected.
Contention XI:
NEPA Issqtg i
Before issuance of the proposed amendment, PGER aust weigh the
~
costs and benefits of continued operation of the plant as required by the National Environmental Policy Act (NEPA), 42 U.S.C.
S 4332.
]
Petitioner makes two allegations in proposed Contention I
XI: (1) preparation of an Environmental Impact Statement ("EIS") is
~
f, required in connection with the proposed amendment; and (2) "need for power" must be addressed in this proceeding.
As explained i
below, MFP has failed to state why, with requisite basis and specificity, the NRC Staff is required, as a matter of law, to 4
prepare an EIS in conjunction with the Proposed Amendment.
In
- addition, the "need for power" issue is beyond the Board's jurisdiction in this proceeding.
- Thus, Contention XI is inadmissible.
l 1.
The NRC Staff Is Not Required to Prepare an EIS Assessing the Environmental Impact of the Proposed Amendment i
CP-recapture amendments are not categorically excluded from NEPA review pursuant to NRC regulation.
10 C.F.R.
S 51.22.
As a matter of law, license amendments not categorically excluded i
from NEPA review require the preparation of either an EIS or an
)
.,y n
.m+
u
-.m o,
,,-~>.--n
~,. > - -
r i
s i
]
Environmental Assessment
("EA").
- However, amendments do not require the preparation of an EIS unless they: (1) satisfy either i
4 of the criteria triggering the need for an EIS specified in S J
- 51. 2 0 ( a ) T; or (2) are listed among the actions identified in S f
51.20(b) requiring an EIS.
l Amendment of an operating license to recapture the 4
i construction period and allow plant _ operation for a full 40-year i
term is not specified in 10 C.F.R.
S 51. 20 (b) as one of the types of agency actions necessitating preparation of an EIS.
Vermont l
Yankee, 31 NRC at 96-97.
Furthermore, like the State in yermont Yankee, Petitioner has not explained, with requisite specificity and basis, why the proposed amendment is a " major Federal action significantly affecting the quality of the huma~~ environment." S_gg i
{
10 C.F.R. S 51.20(a); Vermont Yankee, 31 NRC at 97.F Nor has MFP F
Section 51.20(a) states that:
4 (a)
Licensing and regulatory actions requiring an environmental impact statement shall meet at least one of - the following i
criteria:
i (1)
The proposed action is a major Federal l
action significantly affectingLthe quality _of the human environment.
i i
l (2)
The proposed action involves a matter j
which the commission, in the exercise of its discretion, has determined.should be covered
~
by an environmental impact statement.
The mere conjecture by-MFP that "an extension of the license l
for the Diablo Canyon Nuclear Power Plant would significantly increase the health and safety risk to the public.
(a)s l
the plant ages
" and the resulting conclusion that
"[t]his additional risk makes a _new-EIS a requirement," is insufficient pursuant to S 2.714, as amended.-. Supplemental (continued...) I
.~.
distinguished all_ previous CP-recapture actions in which the NRC Staff has determined that an EIS is not necessary for purposes of NEPA.
.Sqg Vermont Yankee, 31 NRC at 97-98.
For these reasons, as well as the f act that the NRC Staf f is currently preparing an EA, this aspect of proposed Contention XI must be rejected by the Board.
2.
"Need for Power" Contentions Are Inadmissible in CP-Recaoture Proceedinas The NRC may not, as a matter of law, consider "need for-power" in operating license proceedings.
10 C.F.R.
SS 51.53(a),
51.95(a), 51.106(c).E' In Vermont Yankee, the Licensing Board ruled inadmissible a "need for power" contention on the basis that the issue is " proscribed by the Commission's regulations in OL proceedings.
10 C.F.R. SS 51.53(a), 51. 9 5 (a),- 51.106 (c).'"
31 NRC W(... continued)
Petition at 45-46.
The engineering, design, and licensing bases for DCPP all assume, a life of 40-years =or more from commencement of operation.
The environmental consequences of continued operation are no different-than those ~ previously analyzed.-
The economics-of CP-recapture also clearly' favor the proposed action over other alternatives.
E' This mandate is most clearly set-forth in 5 51.106(c) of NRC regulations:
[t]he presiding officer in an operating license hearing shall not admit contentions proffered by any-party concerning need for power-or alternative energy sources-or alternative sites for the facility for which an operating license is requested.._
4 at 95.S' (Petitioner itself recognizes that "need for enargy is considered only at the construction stage of licensing."
Supplemental Petition at 47.)
Therefore, because this aspect of Petitioner's proposed contention is beyond the Board's jurisdiction, it should be ruled inadmissible.
IV.
EIANDING As discussed at length in PG&E's initial Answer in this proceeding, 10 C.F.R. 5 2.714(a)(2) requires that a petitioner shall be admitted in a
proceeding only if the petitioner T
demonstrates its interest in the proceeding and how that interest may be affected by the results of the proceeding.
Initially, in its request for hearing and petition to intervene, MFP failed to l
satisfy NRC and judicial requirements for organizational standing.
Memorandum anc Order at 6.
In the Supplemental Petition, MFP has addressed this concern by providing af fidavits from several members of the organization who live anywhere from 10 to 50 miles from DCPP.
The individuals authorize MFP to represent their interests M'
"Need for power" contentions have been similarly rejected in other license amendment proceedings.
For
- example, in Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit-No. 1), LBP 52, 16 NRC 183, 193 (1982), the Licensing Board ruled that contentions seeking to introduce "need for power" issues in a license amendment proceeding were inadmissible.
Acknowledging that pertinent regulations do not speak directly to license amendment proceedings, the Licensing Board ruled l
that "need for power" prohibitions applicable to operating l
license proceedings also apply to operating license amendment proceedings.
Id. at 194. l l
t i
1
in this proceeding.
These affidavits satisfy the procedural requirements for organizational standing.
Nonetheless, where an organization's standing is based on representation of its members, as it is here, its standing remains dependent upon the standing of the individuals it seeks to represent.
Allied-General Nuclear Servs. (Barnwell Fuel Recovery and Storage Station), ALAL-328, 3 NRC 420, 422 (1976).
In this case, the individuals' interests in this proceeding are all based on residence within 50 miles of the plant.
The issue remains, therefore, whether this is a sufficient basis to intervene in the present operating license amendment case.
As the Licensing Board recognized in its Memoranoum and Order, at page 7,
the NRC's longstanding presumption that standing is conferred by residence within 50 miles from the plant does not apply where the licensing action involves no potential for offsite consequences (creating an injury in fact).
Where, as here, the proposed license change is purely administrative, involving no additional potent.ial offsite consequences, standing based on proximity cannot exist.
See Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329-30 (1989); Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-7, 33 NRC 179, 186 (1991).
l As discussed in Section II.B above, this is not an l
initial license case nor is it a license renewal case.
A CP-1 recapture amendment is an administrative change only -- made to conform the license to the normal 40-year statutory operating life
.-.- ~.
1 for which the DCPP units were originally analyzed and designed.
i l
CP-recapture amendments involve no phv ical changes in plant i
i equipment or operating procedures, involve no changes to existing i
design or licensing bases, and introduce no new technical or safety i
i issues not previously reviewed in the original licensing proceedings.
Therefore, by definition, such a
ministerial amendment (essentially reflecting only a
matter of legal interpretation) cannot involve "a
clear potential for offsite j
consequences."
i The Licensing Board in its-Memorandum and OrderH' I
observed that in an earlier CP-recapture proceeding, no direct showing of injury in fact was required.
Sem Vermont Yankee Nuclear j
I f
Power Coro. (Vermont Yankee Nuclear Power Station), LBP-90-6, 31 e
NRC 85, 90 (1990).
However, in that case the petitioner was the j
State of Vermont and standing was not disputed.
The Licensing j
j Board in its Memorandum and Order @ also points to the comments of the Appeal Board regarding standing. in a construction permit l
extension case.
See Northern Indiana Pub.
Serv.
Co.
(Bailly Generating Station, Nuclear 1), - ALAB-619, 12 NRC 558, 564 (1980).
The Appeal Board observed:
i While it may be true that, strictly: speaking, "the extension of a construction permit-is not an authorization of construction or l
operation," it is equally true that without the extension, the plant.can be neither-l completed nor operated.
Once again, as a matter of both statute and regulation, unless E'
Memorandum and Order at 8.
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e the extension 'is obtained the permit will expire as a matter of law and "all rights i
thereunder be forfeited."
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l Id. Taken on its face, this argument might seem to suggest that if 1
i standing exists in an initial licensing proceeding, it should exist l
for any amendment that de facto or otherwise wontld extend the
'icense.
However, such a conclusion does not follow.
As discussed previously, issues re.ated to the DCPP 4
licensing basis and operation during a 40-year operating life were l
subject to a hearing prior to issuance of the OL.
Like the CP i
l extension in the Bailly case, the present CP-recapture amendment s
j involves no incremental.
consequence beyond that previously l
authorized and subject to litigation.
- However, even more i
fr'damentally, for offsite consequences.to be inferred, they must i
be within the scope of the proposed licensing action.
That is, the t
hypothetical offsite injuries must be a) caused by (i.e.,
" traced fairly to") the liceming action at issue, and b) injuries that i
"can be redressed by a favorable decision" in the.particular proceeding.u' The 50-mile presumption is based entirely upon i
expected risks of a plant during its normal operating life.
To l
utilize the 50-mile presumption in this, or any, CP-recapture case
(
would ef fectively read the causation and redressability components out of the Commission's judicial injury _in fact test.
In the present-case, all of the alleged possibilities of l
offsite consequences
(" issues" in the-original letter request for D'
Public Serv. Co. of New Hamoshire (Seabrook Station, Unit 1),
j CLI-91-14, 34 NRC 261, 267 (1991).
l
> i I
(
hearing, proposed contentions in the Supplemental Petition) clearly relate to r.ormal risks of plant operation.
All of the design basis scenarios hypothesized were previously foreseeable and subject to a hearing opportunity.
These matters also remain subject to normal NRC enforcement oversight.
The Proposed Amendment would not alter the risks of operation or the licensing baselines defining the 1
means by which those risks have been and are being addressed and i
minimized.
Even the Appeal Board in Bailly ultimately denied the intervention at issue in that case (making the previous remarks on standing dicta), on grounds that the intervention would exceed the scope of justiciable issues.U' The Appeal Board also expressly recognized the availability of another viable forum to address operational issues (10 C.F.R. S 2.206).
The Bailly Appeal Board wrote, in words equally applicable to a CP-recapture proceeding such as the present, as follows:
4 a permit extension proceeding is not convened for the purpose of conducting an open-ended inquiry into the safety and environmental aspects of reactor construction and operation.
Yet that is precisely what the proceeding would become were an open invitation given to those in petitioners' situation to freight it unnecessarily with matters far removed from those events which led to its commencement.
E' In this respect, the " specific aspects" requirement of 10 C.F.R.
S 2.714 should not be divorced from the injury in fact requirement.
The specific aspects of interest to the would be intervenor (as manifest in either an initial hearing request or in proposed contentions) are an indication of alleged, potential sources of offsite injury.
However, where those speci fic aspects of interest are outside the scope of the proceeding, the related hypothetical injuries cannot be
" traced fairly" to the amendment at issue, and therefore cannot give rise to standing.
See PG&E's Answer at 17 n.9. _
Id. at 573 (footnote omitted).
A hearing in a CP-recapture case should be based upon a specific showing of injury, caused by the recapture amendment at issue.
The injury must be more than an injury premised solely on the fact of operation.
MFP has failed to articulate such an offsite injury caus ; vy the Proposed Amendment.
This proceeding, involving only a minor change to bring the license i
into conformance with normal NRC practice, cannot support a new, open-ended inquiry into the safety and environmental aspects of reactor operations.
4 1
V.
CONCLUSION 2
For the reasons set forth above, the August 18, 1992, letter requesting a hearing and intervenor status, as augmented by the Supplemental Petition dated October 26, 1992, does not satisfy 0
9 9
1..
)
l-the requirements for intervention, set forth in 10 C.F.R. S 2.714.
i Accordingly, the - request should be denied - and this proceeding.
1 l
should be terminated.
\\
i Respectfully submitted,
- l Joseph B. Mr.otts,1 Jr.
~~
-David A..Repka j
Kathryn M. Kalowsky I
WINSTON & STRAWN i
1400 L Street, N.W.
i Washington, D.C.
20005-3502 (202) 371-5726
)
Christopher J. Warner Richard F. Locke PACIFIC GAS & ELECTRIC COMPANY 77 Beale Street e
San Francisco, CA 94106 Attorneys for Pacific Gas and Electric Company Dated in Washington, D.C.
this 18th day of November, 1992 i
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February 3. 1992 Docket No. 50-275
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Docket ho. 50-323 l
Mr. Richard A. Clarke Chairiaan of the Board and Chief Executive Officer Pacific Gas and Electric Company 77 Beale Street San Francisco, California 94106
Dear Mr. Clarke:
1 j
On January 14 and 15,199?, NRC Senior aianagers met to evaluate the nuclear safety perforaance of operating reactors, fuel f acilities, and other insterials i
licensees.
The NRC conducts this saveting sentannually to ceter.uine if the j
safety performance of the various licensees exhibits sufficient weaknesses to warrant increased NRC attention.
In addition, at this meeting, senior managers identify specific plants that have den.onstrated a level of safety perforiaance that deserves formal NRC recognition.
At the January 1992 Senior Managenent 3
Meeting, the Diablo Canyon nuclear power plant was identified as having achiev-ed a high level of safety performance and uet criteria for recognition of its perforniance.
Iri identifyisia such plants, senior managers perform an evaluation of performance in ruany areas including operational safety, self-assessaient, probleui resolution, i
ano plant manageo.ent organization and oversight.
I NRC senior u.anagenent recognizes that inanageuent involvement in all phases of plant operation, the dedicated and knowledgeable staff that supports plant activities, and the cousaitaent to safety throughout the organization are necessary to achieve the level of performance dea.onstrated by the Diablo Canyon nuclear power plant. We~cou.end you and your staff for achieving a high level of safety perforr.iance.
Your achievement is' the result' of dedicated efforts i
feca. your staff and is a positive example to the industry.-
i The greatest challenge that you now face is to n.aintain this level of perforoi-ance and not to rest on past achievegents.
Continued nianagegent involveu.ent l
and support, i dedicated efforts from your staff to identify and promptly correct prob 1w, are necessary for you to continue to seeet this difficult l
challenge.
Sincerely,
/
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l ues M. Tay r l
/
xecutive Director l
for Operations j
cc: See next page
3
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Richard A. Clarke !
cCt NRC Resident Inspector Mr.' John Hickman Diablo Canyon Nuclear Power Plant Senior Health Physicist c/o U.S. Neclear Regulatory Coosaission Environinental Radioactive Post Office Box 369 Manageoent Unit t
Avila Beach, California 93424 Environmental Mguit. Branch State Dept. of Health Services Dr. Richard Ferguson, Energy Chair 714 P Street,_Roui 616-Sierra Club California Sacragento, California 95814 6715 Rocky Canyon Crbston, California 9343?
Mr. Peter H. Kaufaian Deputy Attorney General Ms. Sandra A. Silver Siste of-California l
Motners for Peace
- 110 West A Street, Suite 700 660 Granite Creek Road San Diego, California 92101 Santa Cruz, Califurnia 95065 Ms. Nancy Culver-Ms. Jacquelyn C. Wheeler' 192 Luneta Stree_t 3303 Barranca Court San Luis Obispo, California 93401 4
San Luit Obispo, California 93401 Michael M. _ Strumwasser, Esq.
Managing Editor Special Assistant Attorney General The County Telegram Tribune State of-California 1321 Johnson Avenue
-Departaent of Justice Post Office Box 112 3580 Wilsnire Boulevard, Roon 800 San Luis Obispo, California 93401 Los Angeles,l California 90010 i
~
Chairman P.ichard F. Locke,_Esq.
San-Luis Obispo County Boarc of_
Pacific -Gas & Electric Conipany.
Supervisors Post 0ffice' Box 7442 Rooin 370 San Francisco, California 94120 County Governnent Center San Luis Obispo, California 93408 Mr. J. D. Shifer Mr. G. M. Rueger Executive Vice President Senior Vice President Pacific Gas and Electric Coupany Nuclear Power Generation 77 Beale Street, Roon.1451 Business Unit-San Francisco, California 94106 Pacific Gas and Electric Company l
77 Beale Street, Roun 1451 San Francisco,- California 94106 J. A. Sexton J. D. Townsend
-Pacific Gas'and Electric Coa.pany Vice President / Plant Manager 77 Beale Street, Room 1451 Pacific Gas and Electric Covapany San Francisco, California 94106 Diablo Canyon P.O.. Box 117 Avila Beach, CA 93424-l t.
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-Richaro A. Clarke --
cc:
(c ontint.ed)
R. F.-Locke, Esq.
D. A. Taggart Attorney Director Law Departinent Quality Support Pacific Gas ano Electric Cou.pany Pacific Gas and Electric Cou.pany P.O. Box 7442 Diablo Canyon San Francisco, CA 94120 P.O. Box 117 Avila Beach, CA 93424 Robert Hendrix B. Thornas County Administrator New= Services County Governnent Center, Rooni 370 Pacific Gas and Electric Coupany San Luis Obispo, CA 93408 01ablo Canyon P.0. Box 117 Avila Beach,-CA 93424 T. L. Grebel Gorden K. Van Vleck Regulatory Coapliance Supervisor Rese'Jrces Agency Pacific Gas and Electric Coupany 1416 9th St., Roou 1311 -
Diablo Canyon Sacraaiento, CA 95B14 P.O. Box 117 Avila Beach, CA 93424 I
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June 30, 1992 4
i Docket No. 50-275 i
Ocetet No. 50-323 1
Mr. Richard A. Clarke Chairman of the Board and Chief Executive Officer Pacific Gas and Electric Company e
77 Seale Street San Francisco, California 94105
Dear Mr. Clarke:
On June 15 and 15, 1992, NRC senior managers met to evaluate the nuclear safety performar.ce of operating reactors, fuel facilities, and other materials licensees. The NRC conducts this meeting semiannually to determine if the safety performance of the various licensees exhibits sufficient weaknesses to warrant increased NRC attention.
In addition, at this meeting, senior managers icentify specific plants that have deconstrated a level of safety i
perfor=ance that deserves formal NRC recognition. At the June 1992 Senior
('
Managerent Meeting, the Diablo Canyon nuclear power plant was identilied as having achievec a high level of safety performance and met criteria for recognition of its performance.
I am pleased to note that Diablo Canyon has again been identified as a good performer, and I consider this a noteworthy acccmplishment.
In identifying such plants, senior managers perform an evaluation of performance in c.any areas including operational safety, self-assessment, probles resolution, and plant management organization and oversight.
l MAC senior canagtment recognizes that managecent involvement in all phases of plant e;eratien, the dedicated and knowledgeable staff-that supports plant activities, and the commitment to safety throughout the organization are nececsary to achieve the level of performance demonstrated-by the Diablo Canyon nuclear power plant. We contend you and your staff for achieving a high level of safety performance. Your achievement is the result of dedicated efforts from your staff and is a poritive example to the industry.
'I
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Siehard A. Clarke'..
The greatest challenge that you now f ace is to maintain this le"il of performance and not to rest on past achievements. Continued management
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involvement and support, and decicated efforts frca your staff to identify and promptly correct problems, are necessary for you to continue to meet this difficult challenge.
$1ncereiy, r
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. h<ier me s xecutive Director for Operations l
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Page 1 of 2 CONTENTION I Issue Citation PG&E Revonse NRC Closcout States 1.
CFCU back ft dampers Insp. D 17 Corrective actions have been date 2
completed except for four items: Program Directive NOV dated 6/19/92 DCL-92-161 NRC lxtter issuance, QC inspection l
pg.2 dated 7/20/92 dated 8/7/92 criteria, hiring of six additional system engineers.
and revision of Procedure AP A-350, " Plant System Engineering Program'. (To be completed by 12/31/92).
2.
1: ire protection requirements Insp. Rpt. 92-20 DCL 92-200 NRC Letter Corrective actions have been of positive displacement NOV dated 8/13/92 dated 9/14/92 dated 10/19/92 compicted except for:
charging pumps Acoustic filters will be installed on the suction and discharge lines of the PDPs by 8/31/93.
3.
Debris left in containment LER 2-91-012-00
- one Corrective actions have been i
dated 3/5/92
' completed.
4.
Failed reactor cavity insp. Rpt. 92-01 DCL 92-071 Insp. Rpt 92-16 Corrective actions have been instrumentation NOV dated 2/28/92 dated 3/30/92 dated 7/7/92 completed.
8
. - _.. _. _.. _ _. _ _ _ _ _ _.. - ~.. _.. _ _ _ _ _. _ _ - - -
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Page 2 of 2
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Issue Citation PG&E Response
. h1C Closcout Status l
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- 5. MOV Testing Program Insp. Rpt. 91-39 DCL 89-324 NRC Ixtter Testing program approved for I
dated 1/24/92 dated 12/27/89 dated 10/23/92 implementation.
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DCL 92-182 ii dated 8/12/92 i
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- 6. CFCU backdraft dampers Insp. Rpt 92-17 DCL 92-161 NRC Irtter Sam as #1, above f
i' dated 5/12/92 dated 7/20/92 dated 8/7/92 I
i NOV dated 6/19/92
]
7.
Diesel generator work order Insp. Rpt. 92-14 DCL 92-151 NRC letter Corrective actions have been f
inadequacy dated 6/5/92 dated 7/2/92 dated 9/10/92 completed.
l NOV dated 6/5/92 l
l 8.
Diesel fuel oil piping LER l-92-006-00 LER l-92-006 None Enhanced program to be corrosion dated 8/6/92 dated 10/7/92 developed by 12/31/92.
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9.
IIousekeeping control Insp. Rpt. 92-21 None Corrective actions have been dated 8/I8/92 compicted.
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Page I of 2 CONTENTION If Issue Citation PG&E Response NRC Closcout Status 1.
Mobile crane boom accident LER l-91-004-02' Insp. Rpt. 92-01 Corrective actions have dated 7/29/92 dated 2/28/92 been compicted.
2 liigh number of personnel Insp. Rpt. 92-05 Iluman Error None PW in place.
errors dated 4/17/92 Reduction Plan
- 3. Steam flow channel LER 2-92-002-00 Procedure and None j Ceuxtive actions have calibration dated 3/13/92 calibrations been completed.
revised 4
CFCU procedures Insp. Rpt. 92-17 DCL 92-141 NRC Letter Same as Contention I, #1, dated 5/12/92 dated 7/20/92 dated 8/7/92 above
- 5. Chainfalls '
Insp. Rpt. 92-16 DCL 92-1 i9 NRC Letter Procedure MP M-50.23 to dated 7/7/92 dated 8/5/92 dated 9/.18/92 enhance preplanning and control will be revised ara QC will evaluate in-process rigging, both by 12/31/92.
LER l-91-004-02 is Rev. 2 to LER l-91-004-00 issued 4/8/91.
p 4
Page 2 oT 2 1-Issue Citation PG&E Response NRC Closcout Status
- 6. Acid / caustic spill LER l-92-007-00 Insp. Rpt. 92-20 Design changes to separate dated 7/20!92 dated 8/13/92 overflow piping in acid and cau Je day tanks and to provide a separate audible annunciator system for the condensate demineralizer icgc.,cration
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system, ooth to be
.l c,.v.r ted by November e
1994.
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7.
Missed fire watch LER 1-92-008-00 No safety None Corrective actions have l
dated 7/22/92 significance been completed.
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e curi H D umt UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'92 t10V 20 A11 :09 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOABD i
i ot w
]
In the Matter of:
)
ht^?
iC 1
)
Docket Nos. 50-275-OLA' "p l
Pacific Gas and Electric Company
)
50-323-OLA i
)
(Construction Period I
(Diablo Canyon Power
)
Recapture)
Plant, Units 1 and 2)
)
)
J 4
CERTIFICATE OF SERVICE I hereby certify that copies of " PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE TO PETITIONER'S SUPPLEMENT TO PETITION TO INTERVENE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as -indicated by an asterisk (*), by hand delivery, this 18th day of November,1992:
Charles Bechhoefer, Chairman
- Jerry R. Kline*
Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Frederick J.
Shon*
Nancy Culver Administrative Judge President, Board of Directors Atomic Safety and Licensing
-San Luis Obispo Mothers Board for Peace U.S. Nuclear Regulatory 192 Luneta Street Commission San Luis Obispo, CA 93401 Washington, DC 20555 Office of the Secretary Office of Commission Appellate U.S. Nuclear Regulatory Adjudication Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Attnt Docketing and Service Washington, DC 20555 Section (original + two copies)
Adjudicatory File Ann P. Hodgdon, Esq.*
Board-Panel
~
Office of the General-_ Counsel Atomic Safety _and Licensing U.S.
Nuclear Regulatory-U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555
_ _.. _. _. _ _ _. _ _. - _ ~., _ _, _., _. _..
o Courtesy copies have also been provided, by first class mail, to the following:
Truman Burns Robert R. Wellington, Esq.
California Public Utilities Diablo Canyon Independent Safety Commission Committee 505 Van Ness, Em. 4103 857 Cass Street, Suite D Fan Francisco, CA 94102 Monterey, CA 93940 Robert Kinosian California Public Utilitics Commission 505 Van Ness, Rm. 4102 San Francisco, CA 94102 99 David A.
Repka i
Counsel for Pacific Gas &
Electric Company 4
9
.....,