ML20128M284
| ML20128M284 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 07/22/1985 |
| From: | Swiger M CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#385-921 OL, NUDOCS 8507250273 | |
| Download: ML20128M284 (34) | |
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July 22, 1985 00LMETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 85 JL 24 AMU 42 Before the Atomic Safety and Licensing Board GFFICE 0F SEcatiAs,
00CMETING & SERWU~
BRANCH In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-4400L ILLUMINATING COMPANY, ET AL.
)
50-441oL
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
)
APPLICANTS' ANSWER TO OCRE MOTION TO REOPEN THE RECORD AND TO SUBMIT A NEW CONTENTION I.
INTRODUCTION By motion of July 5, 1985, Intervenor Ohio Citizens for Responsible Energy ("OCRE") asks the Licensing Board to reopen the record in this proceeding for the purpose of admitting a late-filed contention.
Motion To Reopen the Record and To Sub-mit a New Contention (July 5, 1985) (" Motion").
The purported basis for OCRE's late-filed contention is a request by Appli-cants to the NRC Staff (" Staff") for a partial exemption from one of the containment 1
' cage testing requirements of 10 C.F.R. Part 50, Appendix J.
Applicants oppose reopening of the i
8507250273 850722 PDR ADOCK 05000440 C
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O record and admission of this late-filed contention.
The back-ground of the contention, as well as Applicants' reasons for opposing the contention, are set forth below.
II.
BACKGROUND Appendix J to 10 C.F.R. Part 50 sets forth preoperational and periodic containment leakage test requirements for water-cooled power reactors.
Among those requirements are require-ments for periodic testing of air locks.
Section III.D.2(b) of Appendix J provides, in relevant part, that:
(i)
Air locks shall be tested prior to initial fuel loading and at 6-month in-tervals thereafter at an internal pressure not less than P,.
[P, is defined in 9 II.I of Appendix J.]
(ii)
Air locks opened during periods when containment integrity is not required by the plant's Technical Specifications shall be tested at the end of such periods at not less than P,.
(iii)
Air locks opened during periods when containment integrity is required by the plant's Technical Specifications shall be tested within 3 days after being opened.
For air lock doors opened more frequently than once every 3 days, the air lock shall be tested at least once every 3 days during the period of frequent openings.
For air lock doors having testable seals, testing the seals fulfills the 3-day test require-ments.
In the event that the testing for this 3-day interval cannot be at P,,
the test pressure shall be as stated in the Technical Specifications.
Air lock door seal testing shall not be substituted for
~
the 6-month test of the entire air lock at not less than P,.,
The Staff has routinely granted partial exemptions from the testing'requiremente of 5 III.D.2(b)(ii).1/
This practice has been reflected in the Staff's Standard Technical Specifica-tions (on which technical specifications for individual plants are modeled) for all types of water-cooled reactors since 1978, and for some types since 1977.2/
The exemptions allow testing of the air lock door seal in lieu of testing the entire air lock in cases where the air lock has been opened during periods when containment integrity is not required.
Section III.D.2(b)(iii) explicitly allows this substitution of test methods in cases where the air lock is opened during periods when containment integrity is required.
1/
For two recent exarples, see 50 Fed. Reg. 27388, 27389 (July 2, 1985) (Limerick Generating Station, Unit 1); 49 Fed.
Reg. 35447, 35448 (September 7, 1984) (Grand Gulf Nuclear Sta-tion, Unit 1).
2/
See NUREG-0123, Rev.
1,
" Standard Technical Specifications for General Electric Boiling Water Reactors" (April 1, 1978),
5 4.6.1.3.a (attached hereto as Attachment 1); NUREG-0452, Standardized Technical Specifications for Westinghouse Pressur-ized Water Reactors (June 15, 1978); NUREG-0212, Standard Tech-nical Specifications for Combustion Engineering Pressurized Water Reactors (March 15, 1977); and NUREG-0103, Rev.
1, Stan-dard Technical Specifications for Babcock & Wilcox Pressurized Water Reactors (January 1, 1977).
Although the exemption, apparently inadvertently, was not included in NUREG-0123, Rev. 3 (Fall 1980), it reappears in the proposed Revision 4 to that document, dated Fall 1982.
The initial draft technical specifications for the Perry Nuclear Power Plant ("PNPP") submitted by Applicants to the Staff on July 31, 1984 included this routine partial exemption from 5 III.D.2(b)(ii), with the qualification that an overall air lock leakage test must be conducted when maintenance has been performed on the air lock that could affect the air lock sealing capability.3/
The draft technical specifications also required, in conformance with 6 III.D.2(b)(1), that an overall air lock leakage test be conducted every six months.
See hereto.
Subsequent drafts of the PNPP technical specifications retained the partial exemption from E III.D.2.(b)(ii).
See Attachments 3, 4 and 5 hereto.
By letter of April 8, 1985, Applicants submitted to the Staff their formal request for an exemption from 6 III.D.2(b)(ii).
See Motion, Ex.
1.
Applicants included with the request an explanation of their need for the exemption, as well as an analysis of why the exemption is authorized by the Commission's regulations.
OCRE Representative Susan Hiatt sub-mitted a letter to the Staff on May 8, 1985 opposing the exemp-tion.
See Motion, Ex. 2.
By letter of June 21, 1985, the J
Staff transmitted a copy of its Environmental Assessment and 3/
Inclusion of the exemption was explicitly noted in a foot-note to the draft technical specifications.,
1 ms
Finding of No Significant Impact concerning the requested ex-emption.
See Motion, Ex. 3.
Based on the Staff's indication in the letter that it intended to grant the exemption, OCRE filed its motion to reopen the record to admit the following late-filed contention:
Applicants have not demonstrated, pursuant to 10 CFR 2.758, that the application of Section III.D.2(b)(ii) of Appendix J to 10 CFR 50 to the Perry facility does not serve the purposes for which that regulation was adopted.
Motion at 2.
III.
ARGUMENT l
Applicants oppose OCRE's motion to reopen the record and to admit its late-filed contention for the following reasons.
First', OCRE fails to meet the heavy burden imposed on a party who seeks to reopen the record in an NRC adjudicatory proceed-ing.
OCRE fails to meet its burden in that the Motion is not timely, does not address a significant safety or environmental issue, and fails to show that it could change the result of the proceeding.
Second, OCRE's contention does not withstand the Commis-sion's five factors. test for late-filed contentions.
A balanc-ing of those factors weighs heavily against admission of the contention because of OCRE's failure to show good cause for its untimely filing, OCRE's failure to show'that it can reasonably be expected to aid in developing a souqd record, and the extent -
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.tx) which admission of the contention will broaden the issues and delay the proceeding.
A.
Standards for Reopening the Record To Admit a Late-Filed Contention.
As the Appeal Board has recently restated, a motion to re-open the record in an NRC adjudicatory proceeding
' must be timely and address a significant safety or environmental issue.
It must also show that a different result might have been reached had the newly proffered material been considered initially.'
Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 21 N.R.C.
slip op. at 4 (July 11, 1985)
(quoting Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 N.R.C.
1087, 1089 (1984).
"[B]are allegations or simple submission of new contentions is not sufficient."
Pacific Gas and Electric Co. (Diablo Canyon
. Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 N.R.C.
- 361, 363 (1981).
' At a minimum, the new material in support of a motion to reopen must be set forth with a degree of particularity in ex-cess of the basis and specificity require-ments contained in 10 C.F.R. 2.714(b) for admissible contentions
[I]t must be tantamount to evidence
[and] pos-sess the attributes set forth in 10 C.F.R. 2.743(c) defining admissible evidence for adjudicatory proceedings.
Specifically, the new evidence supporting the motion must be relevant, material, and reliable.'.
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O ALAB-812, slip op. at 4 (quoting Pacific Gas and Electric Co.
(Diablo Can' yon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 N.R.C.
1361, 1366-67, aff'd sub nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), vacated in part and reh'q en banc granted on other grounds, 760 F.2d 1320 (1965)).
See also ALAB-755 at 1367 n.18.4/
A motion to reopen that seeks to introduce a new con-tention -- such as OCRE's motion here -- must also satisfy the Commission's standards for admitting late-filed contentions.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-39, 16 N.R.C.
1712, 1714-15 (1982); ALAB-812, slip op. at 4-5.
The burden of satisfying all these requirements is heavy indeed.
ALAB-812, slip op, at 5.
See Kansas Gas and Electric Co. (Wolf Creek Generating Sta-tion, Unit No. 1), ALAB-462, 7 N.R.C.
320, 338 (1978).
See 4/
OCRE, based on an earlier Licensing Board decision ir. this case on a motion to reopen the record on Issue No. 3 (quality assurance), LBP-83-52, 18 N.R.C. 256, 257 (1983), questions the applicability of the rigorous tripartite standard to motions to reopen filed prior to the issuance of an J.nitial decision.
Mo-tion at 8-9.
Applicants submit that the standard applied by the Licensing Board in its earlier decision is not consistent l
with Appeal Board precedent.
See Public Service Company of l
Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C.
775, 803-804 (1979) (applying the tripartite standard to a motion to reopen filed before issuance of a partial initial decision by the licensing board).
This point is further dis-cussed in " Applicants' Response to the Licensing Board's ' Memo-randum and Order (Motion to Reopen'" (September 19, 1983),
at 3-7...
also Metropolitan Edison Co. (Three Mile Island Nuclear Sta-tion, Unit No. 1), CLI-85-07, 21 N.R.C.
( May '), 1985),
slip op. at 3.
For the reasons stated below, OCRE fails to meet this burden.5/
B.
CCRE's Motion Fails To Meet Its Burden for Reopening the Record in This Proceeding.
1.
The Motion To Reopen Is Untimely.
OCRE claims that its Motion is timely because it was filed "within 10 days after the receipt of the Staff's notice of En-vironmental Assessment and Finding of No Significant Impact (Exhibit 3) by OCRE."
Motion at 9.
According to OCRE,
"[f]iling before the receipt of that document was neither logi-cal nor possible, as it was not then known whether the Staff would grant the exemption."
Id.
l 5/
OCRE argues, citing Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 N.R.C.
1154 (1984), that because this is a contested proceeding, Appli-cants' request for an exemption must be submitted to the Li-censing Board pursuant to the procedures set forth in 10 C.F.R.
$ 2.758 (b), (c) and (d) for seeking waivers of the regulations in adj~m'icatory proceedings.
Motion at 7-8.
This argument falls of its own weight.
In Shoreham, the applicant sought an exemption as a result of a contention which was being litigated in its operating license proceeding.
There is no admitted con-i f
tention here.
Section 2.758 coes not apply.
At the operating license stage, the role of the Licensing Board is limited to resolving contested matters properly placed in issue; all other matters are handled by the Staff.
See 10 C.F.R. 5 2.760a.
OCRE's reliance on S 2.758 is no more than an attempt to boot-strap its way around its failure to meet the requisite stan-dards for reopening the record and admitting late-filed con-tentions..
4 The Commission, however, clearly has precluded the type of approach taken by OCRE:
We start with the basic principle that a person who invokes the right to partici-pate in an NRC proceeding also voluntarily accepts the obligations attendant upon such participation.
A second fundamental principle appli-cable here is that there is a substantial public interest in efficient and expedi-tious administrative proceedings Taken together, these principles re-quire intervenors to diligently uncover and apply all publicly available information to the prompt formulation of contentions.
Accordingly, the institutional unavail-ability of a licensing-related document does not establish good cause for filing a contention late if information was avail-able early enough to provide the basis for the timely filing of that contention.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
CLI-83-19, 17 N.R.C.
1041, 1048 (1983) (emphasis added).
- Thus, if information was previously available to provide the basis for an earlier filing of the contention, OCRE was not entitled to sit back and wait for the Staff to act on the exemption re-quest.
In this case, information has long been available which OCRE could have used to formulate its untimely contention.
NUREG-0123, the Standard Technical Specifications which apply to General Electric boiling water reactors like PNPP, have ex-plicitly included the exemption since 1978.
See Attachment 1
_g_
l hereto.
Applicants' July 31, 1984 initial draft technical specifications for PNPP, which have long been available to OCRE in the Local Public Document Room, also explicitly stated that air lock leakage testing would involve the exemption to 10 C.F.R. Part 50, Appendix J.
See Attachment 2 hereto.
Copies of subsequent drafts transmitted from the Staff to Applicants, which also contained the exemption, were served on Ms. Hiatt on January 30 and March 6, 1985.
See Attachments 3 and 4 hereto.
Thus, OCRE cannot escape from its failure "to diligently uncover and apply [the] publicly available information to the prompt formulation" of its contention prior to the April 8, 1985 formal submittal of Applicants' exemption request.
Cf.
Catawba, supra, 17 N.R.C.
at 1048.
In any event, OCRE had ac-tual knowledge of the exemption request prior to May 8,
- 1985, when OCRE submitted its letter to the Staff objecting to Appli-cants' April 8 submittal.
See Motion, Ex. 2.g/
Thus, the con-tention could have been filed a long time ago.
It is not based on new information, and OCRE lacks good cause for its admission at this late stage of the proceeding.
6/
Although a two or three month delay in filing a contention might not be considered untimely at an earlier stage of the proceeding, it clearly is unreasonable at this late date.
See Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 526 (1973) (mo-tion to reopen denied based on delay of one month).
2.
The Motion To Reopen Does Not Address a Significant Sa,fety or Environmental Issue.
OCRE offers two basic arguments why, it asserts, its Mo-tion addresses a significant issue: (1) " containment integrity is vital to the protection of public health and safety during an accident," and (2) " noncompliance with the Commission's reg-ulations is always a serious matter."
Motion at 9.
OCRE has utterly failed to show how these generalities bear any rela-tionship to the facts at hand.
a.
OCRE Fails To Show that Applicants' Exemption Request in Itself Constitutes a Noncompliance with the Regulations.
OCRE incorrectly assumes that Applicanto' exemption is, by definition, a " noncompliance" with the Commission's regula-tions.
As OCRE acknowledges (Motion at 2), 10 C.F.R. 5 50.12(a) provides, in relevant part, that:
The Commission may, upon application by any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.
Nevertheless, OCRE claims that the exemption is not " authorized by law" because "the Atomic Energy Act does not authorize the Commission to grant exemptions Motion at 3.
This
' argument is an impermissible challenge to the Commission's l.
regulations, since 5 50.12 explicitly authorizes exemptions if certain criteria are met.7/
OCRE also takes issue with Applicants' rationale for re-questing the exemption.
See Motion, Ex.
1.
According to OCRE, the Commmission is not authorized to consider the " financial burden" of meeting the regulation incurred by Applicants and, ultimately, the ratepaying public.
Motion at 3.
The cases cited by OCRE for this proposition, however, are inapplicable.
Power Reactor Development Co. v.
International Union of Elec-trical, Radio and Machine Workers, 367 U.S.
396 (1961), simply restates the Commission's obligation to grant an operating license based on its finding of reasonable assurance that the plant can be safely operated, not on the economic consequences of denying the license.
The Court did not say that the Commis-sion is prohibited from all cost-benefit considerations in its licensing activities for a plant.
Pacific Gas and Electric Co.
- v. State Energy Resources Conservation & Development 7/
At any rate, the inherent authority of an administrative agency to provide for exemptions from its regulations is well established.
E.g.,
U.S. v. Allegheny-Ludlum Steel Corp., 406 U.S.
742, 755 (1972).
The case cited by OCRE, E.I.
du Pont de Nemours & Co. v.
i Train, 430 U.S.
112, 138 (1977), was based on the specific in-tent of Congress not to allow variances from regulations en-acted under the particular provision of the statute being in-terpreted.
OCRE can point to no such specific intent here.
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' Commission, 461.U.S. 190, 103 S.Ct. 1713 (1983), addressed the respective Fesponsibilities of federal and state government with respect to decisions authorizing construction of new nuclear power plants.
The case had nothing to do with the fac-tors which the NRC should consider in deciding matters of nuclear safety.
The Commission has recently clarified in a proposed revi-sion to 5 50.12(a) the standards which are to be applied when i
it considers whether to grant exemptions to 10 C.F.R. Part 50.
See Notice of Proposed Rulemaking, 50 Fed. Reg. 16506 (April 26, 1985).
In its Statement of Considerations to the proposed revision, the Commission explicitly states that " financial or economic hardships" are among the equities which the Commission will consider in' granting exemptions.
50 Fed. Reg. at 16508.
This is consistent with the Commission's past practice.
- See, e.g.,
Shoreham, supra, CLI-84-8, 19 N.R.C.
at 1156 n.3; United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-83-1, 17 N.R.C.
1, 4, 6-8 (1983).
Finally, OCRE maintains, citing Shoreham, 19'N.R.C. at 1156 n.3, that exemptions from the Commission's regulations
'"are made only in extraordinary cases and'upon a showing of ex-4 ceptional circumstances."
Motion at 8.
Although there is lan-guage in Shoreham to that effect,g/ the Commission in its g/
'It should be pointed out that Clinch River, suora, the authority cited in-Shoreham for the proposition that exemptions i
(Continued Next Page) 2.--
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Statement of Considerations to the proposed revision of 6 50.12(a) notes that the standards articulated in Shoreham
" represented a departure from past staff practice in the exemp-tion. area."
50 Fed. Reg. at 16508.
b.
OCRE Fails To Show that the Requested Exemption Would Have a Significant Adverse Effect on Containment Integrity.
OCRE's'second main argument is that, since "the purpose of the containment is to limit the escape of fission products into the environment," and since an exemption from $ II.D.2(o)(ii)
"would increase the probability of containment leakage during an accident," the requested exemption would endanger the health and safety of the public.
Motion at 4.9/ However, OCRE fails to establish that the requested exemption would have a signifi-cant adverse effect on containment integrity or on the public health or safety.
(Continued) are only to be granted in exceptional circumstances, did not involve an interpretation of 6 50.12(a).
That case involved application of the separate exemption procedure established by 6 50.12(b) to permit site preparation activities prior to issu-ance of a construction permit or limited work authorization.
9/
OCRE here seems to confuse an increase in the probability of leakage with an increase in leakage, and also makes the out-landish and unsupported claim that "any increased leakage will endtnger life or property."
Motion at 4 (emphasis added).,
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4 OCRE argues, first, that the seal leak test "must not be a
the nafety equivalent of the internal pressurization [overall air lock leakage) test," since 5 III.D.2(b)(iii) explicitly prohibits the seal leakage test-from being substituted for the six month test required by i III.D.2(b)(i).
Applicants, how-i ever, are not seeking an exemption from 6 III.D.2(b)(i); and the partial exemption sought by Applicants is not prohibited by the regulations.
Moreover, OCRE fails to identify what addi-tional leakage the overall air lock leakage test measures that the seal leakage test does not, and thus fails to show that
- there is a significant difference between the two tests.10/
i Thus, OCRE has provided no basis to question Applicants' and l
the Staff's conclusion that any incremental increase in the probability of' containment leakage is insignificant.ll/
. 10/~ In fact, the only additional leakage measured by the over-all air lock' leakage test is leakage through the door itself.
See 50 Fed. Reg. 27388, 27389.
Such leakage, if any, would of purse be expected to be insignificant.
In addition, the Staff has concluded, based on a i
probtbilistic risk annlysis, that air lock testing in general in eJ low significance since the probability of excessive leak-age through the air lock is small in comparison with the over-all probability of excessive containment leakage.
See 49 Fed.
Reg. 39397, 37398 (October 5, 1984) (granting exemption from
$ III.D.2(b)(111)).
11/ CCRE cites the Shoreham case, CLI-84-8, supra, for the idea that an exemption will be granted only if the facility is "as safe as" it would be without the exemption.
Motion at 4.
(Continued Next Page)
OCRE further claims that, according to information in Applicants' ' Final Safety' Analysis Report, air lock doors could
!be left open or could fail to latch ccmpletely after use; and 1
failure to. activate the automatic = seal leakage test could re-sult-in leakages going undetected.
Motion at 5.12/ However, OCRE confuses the door interlock switch which activates the au-tomatic seal leakage test with the door interlocks which must be bypassed to allow both doors to be left open when-an air lock is being used.
These two types of interlocks are not the same; thus, bypassing the door interlock system will not inhib-
]
it.the automatic operation of the seal leakage test.
Compare FSAR $ 3.8.2.1.4 at pp. 3.8-55, 3.8-55a.
Moreover, an (Continued)
However, the Commission has made clear that the "as safe as" language applied by the Commission to 10 C.F.R. 6 50.12(a) in Shoreham was limited to the particular facts of that case.
See 50 Fed. Reg. 16506,'16508.
12/
OCRE references NUREG/CP-0056, " Proceedings of the Second Workshop on Containment Integrity" (August 1984), at 36-37, for the argument that air locks have a history of failing to latch.
However, OCRE provides no nexus between the air lock operating experience data reported in this document and the particular design of the PNPP BWR Mark III containment.
Indeed, personnel air lock failures were not specifically discussed in the report in connection with~BWRs.
See id. at 36.
Moreover, the report concluded that " airlock or similar penetration failures may'not be of major concern due to the short failure duration and fro-quent testing interval."
Id. at-39.
In any event, as dis-cussed infra, there are safeguards to alert the operator if an
' air lock door is left open at PNPP.
i 4,
1 i
)
indicator light in the control room will alert the operator to
.any air lock door that has been left open; and a remote alarm is provided whenever both doors in an air lock are not locked closed.
FSAR $ 3.8.2.1.4 at p. 3.8-55a.
In sum, OCRE fails to establish a factual basis for the existence of any significant safety or environmental issue in connection with Applicants' exemption request.
3.
OCRE Fails To Show That Its Late-Filed Contention Could Change the Result of the Proceeding.
OCRE suggests that the results of the proceeding could be changed if its contention were admitted because " compliance with the regulations is the basis for a finding that a nuclear facility is safe.
Motion at 9.
Again, OCRE assumes that Applicants' exemption constitutes a noncompliance.
OCRE fails to produce any evidence that the exemption is improper or, even if improper, would have any significant adverse conse-quences to the public health or safety.
Thus, OCRE does not show that the contention could provide a basis for altering the results of the proceeding, i.e.,
denying Applicants' operating license.
i
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C.
The Five. Factors Test Does Not Favor. Admission of the Contention.
As discussed supra, OCRE must also show that a balancing of the.following five factors favors admission of its late-filed contention:
.(i)
Good cause, if any, for failure to file on tims.
(ii)
The availability of other means where-by the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to as-sist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by exigting par-
. ties.
(v)
The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
10 C.F.R. 5 2.714(a)(1).
The belancing of these five factors as applied to OCRE's proposed contention weighs heavily against admission of the contention.
First, as discussed supra, the contantion is not based on new information; and OCRE lacks good cause for failure to file on time.
Second, OCRE fails to demonstrate its ability to contrib-ute to the development of a sound record.
The Appeal Board has repeatedly observed that "[w] hen a petition addresses this cri-terion it should set out with as much particularity as possible i
the precise issues it plans to cover, identify-its prospective
_ witnesses, and summarize their proposed testimony."
Mississippi Power r. Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 N.R.C.
1725, 1730 (1982).
See also Washington Public Power Supply System (WPPSS Nuclear Project No.-3), ALAB-747, 18 N.R.C.
1167, 1177 (1983); Long Is-land Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-743, 18 N.R.C. 387, 399 (1983).
OCRE has ignored this ob-servation.
OCRE argues (Motion at 10) that its ability to contribute to the record on Issue No. 8 (hydrogen control) has been noted by the Licensing Board.
However, OCRE's proposed new con-tention is a different issue than Issue No. 8.
As this Licens-ing Board has recognized, the likelihood that OCRE can contrib-I ute to developing a sound record on one issue does not mean that OCRE can be expected to make a similar contribution with respect to other issues.
LBP-82-11, 15 N.R.C.
348, 352 (no basis shown for OCRE special competence on core catcher issue).
At any rate, the extent to which an intervenor's participation may reasonably be expected to assist in developing a sound record ~"is only meaningful when the proposed participation is on a significant, triable issue."
Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit _1), LBP-83-30, 17_N.R.C.
1137, 1143 (1983).
Such is not the case here. _
Third, admission of the contention clearly would broaden the issues and delay the proceeding, since the record is closed and no other issues are being litigated.13/ Although OCRE ad-mits that "some delay might result," it claims that "the effect of.any delay [would be] minimal in light of Applicants' ever-slipping fuel load date."
Motion at 10-11.
Fuel load for PNPP, Unit 1 currently is scheduled for September 1985.
Obvi-ously, there is insufficient time for discovery, possible sum-mary disposition motions, hearing, and a decision by the Li-censing Board all in the next several weeks -- or, indeed, in the next several months.
Applicants' fuel load could well be delayed by admission of the contention.
Even if factors (ii) and (iv) might weigh in favor of admission,14/ and even if the Licensing Board might somehow ove '
" OCRE's inadequate showing on factor (iii), those fac-tors..
heavily outweighed by the total lack of good cause for OCRE's late filing and the delay to the proceeding which would result if the contention were admitted.15/
Thus, the balance 13/
The evidentiary record in this proceeding has been closed since May 3, 1985.
14/
Factors (ii) and (iv) are the least important of the five criteria.
Scuth Carolina Electric & Gas Company (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 N.R.C.
881, 895 (1981).
15/
As the Appeal Board stated in Summer, supra:
(Continued Next Page)
weighs strongly against the admission of OCRE's. late-filed con-tention.
~
IV.
CONCLUSION For all of the above reasons, OCRE's motion to reopen the proceeding for the purpose of admitting a late-filed contention should be denied.
Respectfully submitted, 7f),yk h h. h l W Jay E.
- Silberg, P.C.
/
Harry H. Glasspiegel, P.C.
Michael A.
Swiger SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 Dated:
July 22, 1985 (Continued)
[I]t is most difficult to envisage a situa-tion in which (factors (ii) and (iv)] might serve to justify granting intervention
. to one who (1) is inexcusably late; (2) seeks to expand materially the scope of the proceeding; and (3) offers, at best, a marginal showing with respect to its abili-ty to make a truly significant, substantive contribution.
13 N.R.C.
at 895. _-
ATTACHMENT 1 tynse
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!PB 279 753, a
NUREG-0123, Rev.1 mN l
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II STANDARD TECHNICAL SPECIF3 CATIONS 6
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.P BO! LING WATER REACTORS l
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Revision of April 1,1973 i
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NATIONAL. TECHNICAL INFORMATION SERVICE "0:,'b"i2 Yai *
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Office of Nuclear Reactor ReDulation I
U. S. Nuclear Regulatory Commicolon i
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CONTAINMENT SYSTEMS i
PRIMARY CONTAINMENT AIR LOCKS LIMITING CONDITION FOR OPERATION
['
3.6.1.3 Each primary containment air lock shall be OPERABLE with:
a.
Both doors closed except when the air lock is being used for nomal transit entry and exit through the containment, then at least one air lock door shall be closed, and b.
An overall air lock leakage rate of 5 0.05 L, at P,, 40.4 psig.
APPLICABILITY: CONDITIONS 1, 2* and 3.
ACTION:
a.
Wita a primary containment air lock inoperable, maintain at least the OPERAELE air lock door closed; restore the inoperable air lock door to OPERABLE status within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> or lock the OPERABLE air lock door closed; operation may then centinue until performance of the next required overall air lock leakage test provided that w
the OPERABLE air lock door is verified to be locked closed at least once per 30 days. The provisions of Specification 3.0.4 are not I
applicable.
l l
b.
With the primary containment cir lock inoperable, except as a result of an inoperable air lock door, maintain at least one air lock door closed; restore the inoperable air lock to OPEPABLE status within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
I c.
Otherwise, be in at least HOT SHUTDOWN within the next 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> and in COLD SHUTCOWN within the following 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
SURVEILLANCE REQUIREMENTS 4.6.1.3 Each primary containment air lock shall be demonstrated OPERABLE:
a.
- After opening, except when the air lock is being used for multiple entries, then at least once per 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, by verifying ceal leakage rate 1 (5) scf per hour when the gap between the door seais is pressurized to > (10) psig.
l
- See Special Test Excep' ion 3.10.1
- Exemption to Appendix 'J" of 10 CFR 50.
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g CONTAINMENT SYSTEMS
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SURVEILLANCE REQUIREMENTS (Continued) i b.
At least once per 6 months by conducting an overall air lock i
leakage test at P (40.4) psig and by verifying that the
~'
overall air lock fe,akage rate is within its limit, and At least once per 6 months by verifyin c.
each air lock can be opened at a time.g that only one door in
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, GE-STS 3/4 6-6 April 1, ig78
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TELEPMoNE (216) 622-9800. ILLUMINATING SLOG. - 55 PUBLICScuARE f
CLEVELANo oMIO 44101 P.O. sox 5000 Serving The Best Lccancn in the Nadcn MURRAY R. EDEL\\MN vlCE PRE 31otNT MUCLEA R July 31, 1984 PY-CEI/NRR-0128 L Mr. B. J. Youngblood, Chief Licensing Branch No. I Division of Licensing U. S. Nuclear Regulatory Commission Washington, D.C.
20555 t
Perry Nuclear Power Plant
- ~
Docket No.40-440; 50-441 Draft Technical Specifications I
i i
Dear Mr. Youngblood:
l In accordance with your
- request, Cleveland Electric Illuminating Company is submitting the attach 6d draft technical specifications for the Perry Nuclear Power Plant l
(dated July 26, 1984). These technical specifications are an initial draft and subject to ongoing reviews and verification programs.
We look forward to working with the NRC d!$Ef during the review of the technical specifications towards establishing the final draft of this docu=ent.
Very truly yours, I,Wtt/
Murray R. Edelnan Vice President Nuclear Group MPI:nje Attach =ents ec: Jay Silberg, Esq.
-John Stefano ud. Grobe - NM Don Hoffman i
I p
CONTAINMENT SYSTEMS SURVEILLANCE REQUIREMENTS 4*
4.6.1.3 Each containment air lock shall be demonstrated OPERA 8LE:
Within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> following each closing, except when the air lock is a.
being used for multiple entries, then at least once per 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, by-2.5 verifying seal leakage rate less than or equal to-f1Pf scf per hour when the gap between the door seals is pressurized to Pa, (10.0' By conducting an overall air lock leakage b.
...) psig, and verifying that the overall air lock leakage rate is ithin its limit:
1.
At least once per 6 months',
~
1 2.
Prior to establishing PRIMAR'f CONTAINMENT INTEGRITY when maintenance has been performed on the air lock that could affect the air lock sealing capability.*
At least once per 6 months by verifying that only one door in each c.
air lock can be opened at a time.f**7 f
d.
ByverifyingthedoorinflatablesealsystemOPERABLEbyI h;;r.;tretin;i (tw;) ;;;l ;ir fi;;% ;;r;;;;r; in;trr:ntatf:n nnel(s) OPERA 8LE by performance of a:
a)
CHA'4 CTIONAL TEST at least one 1 days, and 4
b)
CHANNEL CALIBRATI 1
once per 18 months, i
with a low pressure s t of >(90) ps 4".
At 1 once per 7 days, verifying seal air fla q ure to f __ gr::t:r th: Or :g:1 " (00) ;:!;.
j fat least once per 18 months, conducting a seal pneumatic system 4:
i leak test and verifying that system pressure does not decay more i
than 443 psig from G05) psig within 1463 hours0.0169 days <br />0.406 hours <br />0.00242 weeks <br />5.566715e-4 months <br />.
l.5 9o 29
'The provisions of Specification 4.0.2 are not applicable.
- Exemption to Appendix J of 10 CFR 50.
T*O:::?* + hat the inner door need not be opened to yae4*y in;.. incs, UPERA8ILITY when the containment is..-- ^ M, ;;
- rno snat the inner door interlock is t**+=d "it!.i..
nours after the contairment has oeen u. f r.;rt:d _
i PERRY - UNIT 1 3/4 6-6
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UNITED STATES NU, CLEAR REGULATORY COMMISSION o
WASHINGTON. D. C. 20555 g
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JAN 3 01985
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Docket No.
50-440 kp
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49 Mr. Murray R. Edelman Vice President, Nuclear Group The Cleveland Electric Illuminating Company P. O. Box 5000 Cleveland, Ohio 44101 -
Dear Mr. Edelman:
Subject:
Perry Nuclear Power Plant Technical Specifications (First Draft)
Enclosed is a copy of the staff's first draft of the Perry Nuclear Power Plant Technical Specifications. This first draft.is based on your July.31,.
1984 and January 4,198S submittals and the r.esults of the working meeting in Bethesda with members of your staff during the wpk of January 7 -1985.
- ' This dr'af~t documeht'will be the basis for a site visit and meeting the week-
~
of February 4,1985 to discuss areas where additional infomation may be required to ensure that the final plant technical specification ~s are docu-mented in the FSAR and reflect the "as-built" plantlesign.
If you desire further discussion on this topic please contact the Project Manager, John Stefano, on (301) 492-7037.
Sincerely,
(
B. J. Youngbl aod, Chief L e ingBrahch#1
-,...:.~.~.-.
D ion of Licensing Enclosure As" stated..
5-~
cc: See-next'page"
PERRY JAN 3 01985 Mr. Murray R. Edelman
' lice President, Nuclear Graup
'the Cleveland Electric Illuminating Company P. OT Box 5000
~
Cleveland, Ohio-- 44101 cc:
Jay Silberg, Esq.
Shaw, Pittman, Potts & Trowbridge 1800 M Street, N. W.
Washington., D. C.
20006 Donald H. Hauser, Esq.
The Cleveland Electric Illuminating Company
'P. O. Box 5000
. Cleveland, Ohio 44101 Resident Inspector's Office U. S. Nuclear Regulatory Commission Parmly at Center Road Perry, Ohio 44081 Regional Administrator r--
~
U. S. NRC, Region III 799 Roosevelt Road Glen Ellin, Illinofi 60137
~
~
- Donald T. Ezzone, Esq.
~
Assistant Prosecuting Attorney 105 Main Street Lake County Administration Center Painesville, Ohio 44077 Ms. Sue Hiatt i
OCRE Interim Reoresentative 8275 Munson Mentor, Ohio 44060 Terry J. Lodge, Esq.
~'
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618 N.' Michigan' Street-Suite 105
..,, Toledo, Ohio 43624 John G.. Cardinal, Esq.
~~
Prosecuting Attorney Ashtabula County Courthouse Jefferson;' Ohio 44C47 smee -
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- - - - - + - -
n, - - - -,.-, - -,.
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CONTAINMENT SYSTEMS r.
SURVEILLANCE' REQUIREMENTS 4.6.1.3 Each containment air lock shall be demonstrated OPERABLE:
a.
Within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> following each closing, except when the air lock is being used for multiple entries, then at least once per 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, by verifying seal leakage rate less than or equal to 2.5 scf per hour when the gap between the door seals is pressurized to Pa,11.31 psig.
b.
By conducting an overall air lock leakage test at P,,11.31 psig, and verifying that the overall air lock leakage rate is within its limit:
1.
At least once per 6 months #,
2.
Prior to establishing PRIMARY CONTAINMENT INTEGRITY when maintenance has been performed on the air lock that could affect the air lock sealing capability.*
c.
7.t least once per 6 months by verifying that only one door in each air lock can be opened at a time.
d.
By verifying the door inflatable seal system OPERABLE at least once per 18 months by conducting a seal pneumatic system leak test and verifying that system pressure does not decay more than 1.5 psig from 90 psig within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />.
- The provisions of Specification 4.0.2 are not applicable.
- Exemption to Appandix J of 10 CFR 50.
PERRY - UNIT 1 3/4 6-7 JAN 3 01985
ATTACHMENT 4 pm ancy#o, UNITED STATES
~,
8 NUCLEAR REGULATORY COMMISSION g
t
-l WASHINGTON. D. C. 20555 b
8 March 6, 1985 g.....p Docket No. 50-440 RECEIVED Mr. Murray R. Edelman, Vice President Nuclear Operations Group Mfd 0 G 1965 The Cleveland Electric Illuminating Company Post Office Box 5000 LICENSING Cleveland, Ohio 44101
Dear Mr. Edelman:
Subject:
Perry Nuclear Power Plant Unit 1 Technical Specifications (Second Draft)
Enclosed is a copy of our Second Draft of the Perry Nuclear Power Plant Technical Specifications. This second draft is based on the first draft, provided to you by letter dated January 30, 1985, and the results of the working meeting at the Perry site with members of your staff during the week of February 4, 1985.
Please review this document and identify any statements which do not accurately reflect the Perry FSAR or the Perry "As-built" desian'.
Your response by COB March 29, 1985 is necessary to support an April 8, 1985 issuance of a Proof and Review version of the Perry Technical Specifications.
If you desire further discussion on this topic please contact the Perry Pro.iect Manager, John Stefano, on (301) 497-7037.
Sincerely, f
%m 6
i
,j R. J.
oungblo/d, Chief Licensing Branch #1 Division of Licensing
Enclosure:
Is stated cc:
See next page
CONTAINMENT SYSTEMS SURVEILLANCE REQUIREMENTS 4.6.1.3 Each containment air lock shall be demonstrated OPERABLE:
a.
Within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> following each closing, except when the air lock is being used for multiple entries, then at least once per 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, by verifying seal leakage rate less than or equal to 2.5 scf per hour when the gap between the door seals is pressurized to Pa, 11.31 psig.
b.
By conducting an overall air lock leakage test at P,w,11.31 psig, and verifying that the overall air lock leakage rate is ithin its limit:
1.
At least once per 6 months #,
2.
Prior to establishing PRIMARY CONTAINMENT INTEGRITY when maintenance has been performed on the air lock that could affect the air lock sealing capability."
c.
At least once per 6 months by verifying that only one door in each air lock can be opened at a time.
d.
By verifying the door inflatable seal system OPERABLE at least once per 18 months by conducting a seal pneumatic system leak test and verifying that system pressure does not decay more than 1.5 psig from 90 psig within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />.
- The provisions of Specification 4.0.2 are not applicable.
- Exemption to Appendix J of 10 CFR 50.
l PERRY - UNIT 1 3/4 6-7 MAR 0 61985
ATTACHMENT'S
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CONTAINMENT SYSTEMS SURVEILLANCE REQUIREMENTS
\\
/e,#3 (P/
4.6.1.3 Each containment air lock shall be demonstrated OPERABLE:
/
a.
Within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> following each closing, except when the air lock is beingusedformultipleentries,thenatleastonceper72hourgby f
I verifying seal leakage rate less than or equal to 2.5 scf per hour
]
( when the gap between the door seals is pressurized to Pa, 11.31 psig. j
)
C #.
By conducting an overall air lock leakage test at P,w, 11.31 psig, and verifying that the overall air lock leakage rate is ithin its limit:
1.
At least once per 6 months #,
I 2.
Prior to establishing PRIMARY CONTAINMENT INTEGRITY when maintenance has been performed on the air lock that could affect l
the air lock sealing capability."
f dt.
At least once per 6 months by verifying that only one door in each air lock can be opened at a time.
- e. g.
By verifying the door inflatable seal system OPERABLE at least once per 18 months by conducting a seal pneumatic system leak test and verifying that system pressure does not decay more than 1.5 psig from 90 psig withia 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
p.f,-
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7 2 L6e r3 Nino f Go-s4. o/e s o*q, 894 y,%,:,
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72 A*wed o.,W,A2,-fks a+ lA*J f
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Att o ne o4 **4
& Tnonso.eawT' Z~TV H rry
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h a./c Ao-a 4 r usaA a Q m Y
& W pa ' && o o, % s,,, /4 yThe provisions of Specification 4.0.2 are not applicable.
- Exemption to Appendix J of 10 CFR 50.
- b. 6y verlfyuy & \\ead..ee g+e '7.hy.s W4 -I!.e rende ed @
+he c., ww ent & \\ u k a ? % or:9 f
p res s are s% W k en d<<
a 0
PERRY - UNIT 1 3/4 6-7
July 22, 1985 00LKETED
'JSNR C UNITED STATES OF AMERICA 15 JW. 24 A10 :42 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board 0FFICE OF SECr'ETAa <
00CHETING & SERVICf BRANCH
-In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing "Appli-cants' Answer to OCRE Motion To Reopen the Record and To Submit a New Contention" were served by deposit in the United States Mail,.First Class, postage prepaid, this 22nd day of July, 1985, to all those on the attached Service List.
?n.rtaef G. duJi w MICHAEL A.
SWIGER y/
DATED:
July 22, 1985
a s
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION d
Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
)
(Perry Nuclear Power-Plant,
)
Units 1 and 2)
)
SERVICE LIST
. James P.
Gleason, Chairman Atomic Safety and Licensing 513 Gilmoure Drive Appeal Board Panel Silver Spring, Maryland 20901 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Jerry R. Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Glenn O. Bright Colleen P. Woodhead, Esquire Atomic Safety and Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 o
Alan S. Rosenthal, Chairman Ms. Sue Hiatt Atomic Safety and Licensing OCRE Interim Representative Appeal Board 8275 Munson Avenue U.S. Nuclear Regulatory Commission Mentor, Ohio 44060 Washington, D.C.
20555 Dr. W.
Reed Johnson Terry Lodge, Esquire Atomic Safety and Licensing 618 N. Michigan Street, Suite 105 Appeal Board Toledo, Ohio 44060 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Gary J.
Edles, Esquire Donald T.
Ezzone, Esquire Atomic Safety and Licensing Assistant Prosecuting Attorney Appeal Board Lake County Administration Center U.S. Nuclear Regulatory Cczmission 105 Center Street Washington, D.C.
20555 Painesville, Ohio 44077 Atomic Safety and Licensing John G. Cardinal, Esquire Board Panel Prosecuting Attorney U.S. Nuclear Regulatory Commission Ashtabula County Courthouse Washington, D.C.
20555 Jefferson, Ohio 44047
_ _ _ _.. - - ~ _.