ML20137C360
| ML20137C360 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/22/1985 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20137C311 | List: |
| References | |
| OL, NUDOCS 8511260491 | |
| Download: ML20137C360 (15) | |
Text
W 6
fD
( UNITE STATES OF MERICA '83 1
NUCLEAR REGULNIORY OCM4ISSION MOPpg 1 Before the Cm mission f' Q ,cy,A10:j9 M
In the Matter of ) <
'; c.[ I
)
Philadelphia Electric Cmpany ) Docket Nos. 50-352
) N 50-353
,~
_ (Limerick Generating Station, )
Units 1 and 2) )
LICENSEE'S ANSWER 'IO MOTION BY R.L.ANIHONY/ FRIENDS OF 'IEE EARTH 'IO REOPEN 'IEE REODED,0N ITS CONTENTIONS V-3a and V-3b AND MOTION'POR A STAY Preliminary Statement i . . . . ,
By letter dated October 31, 1985, Licensee Philadelphia Electric Cmpany ("Li'c'ensee") furnished the Nuclear Regulatory Comission ("NBC" or "Cmmission") with Licensee Event Report ("IER") No.85-080 pursuant to the requirements of 10 C.F.R. 550.73(a) (2) (ii) (C) . In essence, the LER reported corrective measures which had been taken at t1M Limerick Generating Station (" Limerick") as the result of the discovery that a potential existed for the occurrence of an operating condition not covered by plant procedures. The LER discussed actions taken to pre-clude the loss of the Control Structure Chilled Water Systes and, additionally, the developnent of a procedure to respond to the loss'of Control Structure cooling. As discussed in the LER and below, even the hypothetical loss of these chilled water systes and the absence of specific procedures to deal with that eventuality would not have pre-
- q r vented the safe shutdown of Limerick Unit 1.
s
(
w B511260491 851122 ,
PDR ADOCK 05000352.
g PDR
a
, i
'e In a motion dated Novenber 12,1985,M intervenor Friends of the Earth ("NE") by its representative, Robert L. Anthony, filed a motion with the Appeal Board seeking to reopen the record on NE Contentions V-3a and V-3b on the basis of the LER. WE also sought a stay of Limerick Unit 1 operation pending empletion of renewed hearings which it also requested. The motion was referred to the Comnission by the Appeal Board on November 19, 1985.2/
For the reasons discussed below, NE has not met the requirements for reopening a closed record because the information it relies upon in the LER danonstrates on its face that no serious safety deficiency ever existed and that, in any event, appropriate corrective action has been 1/ Counsel for Licensee did not receive the motion until obtained fr m the NRC's Docketing and Service Branch on November 19, 1985. A copy was received fran FOE on November 21, 1985 only as an attachment to another unrelated pleading. .Because EE's representative did not serve Licensee's counsel in a timely manner as represented in his motion to reopen (or, to the best of our knowledge, the NBC Staff and, by inference, other parties), its motion should be stricken. It is significant that the Licensing Board and Appeal Board have repeatedly admonished intervenors, including Mr. Anthony, regarding their responsibility to cmply with the procedural requirements of the NBC's rules, especially proper service of pleadings. In an Order dated July 2, 1985, the Appeal Board in this proceeding chastized Air and Water Pollution Patrol for failing to serve the cmmission and parties with its pleadings. The Board emphasized: "Each such entity must be served separately and nust be accmpanied by a Certificate of Service."
(atphasis in original) . The Appeal Board repeated this admonition in a letter from its Secretary dated July 5,1985, stating that the Board had executed service of a document filed by ME which Mr.
Anthony should have served, "but will not do so in the future."
(Enphasis in original.) As the Appeal Board further stated in an Order dated August 9,1984, the requirement of proper service "is not to be taken lightly." Mr. Anthony's blatant disregard of these orders warrants the striking of N E's motion.
~
2/ Philadelphia Electric Cmpany (Limerick Generating Station, Units 1 and 2) , ALAB-823, 22 NRC (Novanber 19, 1985).
b taken to remedy the reported event such that there is no prospective health and safety issue to be litigated. Further, ME has failed to demonstrate- that a: different result would have been reached were the record' to be reopened. Accordingly, the Camission should deny the request to reopen. At most, the Comnission may wish to refer ME's motion to the Director, Nuclear Reactor Regulation, for appropriate disposition as it similarly acted in referring NE's " appeal" of ex-emptions granted PECO. -
Background
IER 85-080 relates to the discovery that a potential existed for the occurrence of an operating condition not covered by the _ plant's operating or emergency procedures, i.e., the loss of both redundant Control Structure Chilled Water Systems due to flooding resulting -frm events such as the occurrence of the Probable Maxinum Precipitation
("PMP") event or a cooling tower basin break. This matter was original-ly reported in ompliance with 10 C.F.R. 550.72(b) (1) (ii) (C) and fol-lowed up by a written report pursuant to 10 C.F.R. 550.73(a) (2) (ii) (C) .
It should be mphasized that no loss of one or both Control Structure 3_/ See Limerick, supra, Canmission " Order" (August 8,1985) . As the Appeal Board stated in supplementing a prior decision denying a motion to reopen, such developnents as those ra.ised by ME can be directed to the Director of. Nuclear Reactor Regulation. Union Electric Capany (Callaway Plant, Unit 1), AIAB-750A,18 NRC E 1220 (1983). It is noted that the Director has previously disposed of requests for action by Mr. Anthony and ME, one of which related to allegations arising fra IER's. See Limerick, supra, DD-85-ll, 22 NBC 149 (1985), see. also Limerick, supra, DD-85-18, 22 NBC
~~
(November 12, 1985).
t.
Chilled Water Systems occurred during the period in question.O In any event, even if flooding of the turbine enclosure had occurred and both chiller systems had been lost, the reactor could have been safely shut down without the existence of written procedures.5_/
Upon discovery of this situation, L W L'te actions were taken and longer term measures begun to assure that the chiller systems could not be lost as a result of turbine enclosure flooding. All such measures have now been cmpleted.6_/ Additionally, even though the particular reported event had been corrected, written procedures were developed to deal with the loss of both chillers. The Licensee also conducted a review to assure that safety-related structures or equipnent associated with operation of Unit I would not be adversely impacted by the incczn-plete status of Unit 2. 'Ihis review identified no additional instance of adverse hnpact on Unit 1 structures.1!
Argument In Diablo Canyon, the Ccunission held that where a party moves to reopen the record on new contentions, it "must saticfy both the stan-dards for admitting late-filed contentions, 10 CFR 2.714 (a) , and the criteria established by case law for reopening the record."8,/ In its 4/ See LER 85-080 at A A-3.
5/ Id. at A A-4.
6/ Id. at A-1.
7/ Id. at A-5.
. 8_/ Pacific Gas and Electric Cmpany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-19,16 NBC 1712,1715 (1982), citing Diablo Canyon, suprg, CLI-81-5,13 NBC 361 (1981) .
e motion, ME does not even attempt to address the five factors for considering the acknissibility of new, late-filed contentions.E This defect in and of itself warrants denial of the motion as lacking legal
. basis.-
2 Additionally, ME has not met the requirements for reopening. The I Appeal Board restated the three-prong test for reopening a closed proceeding in Waterford as follows:
- 1. We explained in AIAB-753 that a successful motion to reopen nust be timely and address a significant safety or envim icutal issue. It nust '
also show that a different : result might have been reached had the newly proffered material been considered initially. We stressed as well the need for more than bare allegations, and we observed that a newspaper article alone does not provide a basis for reopening .a closed adjudicatory record. The-burden of satisfying these requirements is on the proponent of a motion to reopen and it is a " heavy" one.10/ . (Citations canitted) .
4 i
~
9/- '1he matter raised by ME is a new contention despite ME's effort to link it to its previously litigated contentions.- Contrary to ME's assertion that its motion presents new information relating
- to "the evidence presented on our contentions V-3a and V-3b" (ME Motion at 1), the findings by the Licensing Board regarding the potential for a cooling tower collapse scenario " extended well beyond the four corners of contentions V-3a and V-3b." Limerick, supra, AIAB-819, 22 ' NRC '(October 22, 1985) (slip op. at 79) .
As the Appeal Board held, the Limnsing Board's findings in that
!- area represented, in effect, its sua sponte inquiry, possibly in ,
- violation of the internal procedure for notifying the Ccenission of an intent to raire an issue sua sponte. Id. at 80 n.64.
r
_1_0/
0 . Iouisiana Power & Light Ccarpany (Waterford Steam Electric Station, Unit 3) , AIAB-786, 20 NRC 1087, 1089-90 (1984). See also Metropolitan Edison Cccany ('1hree Mile Island Nuclear Station, Unit No. 1) , AIAB-815, 22 NRC 198, 200 (1985); Waterford, supra, AIAB-812, 22 NBC 5, 13-14 (1985); Three Mile Island, supra, AIAB-774,19 NRC 1350,1355 (1984) .
o-c.
Further, a notion to reopen must present significant new evidence that materially affects the decision.EI This standard is not met by simply reciting portions of a newly proffered document generated by an
' applicant or licensee which the movant claims to show an issue of f
serious safety significance. Rather, it is incabent upon the movant to demonstrate "sith a degree of partimlarity in excess of the basis and specificity requirements contained in 10 C.F.R. 2.714(b) for admissible
,' -contentions" that a serious safety issue in fact exists.EI As dis-cussed below, EDE has failed to make any such demonstration, nor has it
, shown that the outcome of the proceeding would have differed in any respect if the proffered information had been available at the time of decision.
As to the second factor on reopening,E! FOE has failed to estab-lish that there is any prospective significant issue affecting the public health and safety to be litigated. In Vermcmt Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, 6 i
AEC 520, 523 (1973), the Appeal Board found that-if the alleged safety
^
issue has been resolved, no reopening will be required inasmuch as there exists no genuine unresolved issue of fact to be litigated.
-11/ ' Diablo Canyon, supra, ALAB-775, 19 NBC 1361,1366 (1984), citing
- . Diablo Canyon, supra, CLI-81-5,13 NBC 361, 362-63 (1981) .
!=
M/ d I_d. at 1366. In that-~ decision, the Appeal Board noted that supporting .information "nust be tantamount to evidence," and therefore "nust possess the attributes set forth in 10 C.F.R. 2.743 (c) defining admissible evidence for adjudicatory r.&
- iings." Id. at 1366-67.
4 M/ Given the date the LER was subnitted, the timeliness of the request is not a factor in denying the motion to reopen.
1 i
i.
w
- FOE apparently fails to appreciate that corrective actions have already been empleted and no safety issue presently exists. LER 85-080 was subnitted in fulfillment of the requirements of 10 C.F.R. 550.73 and addresses the requirements of that regulation. 'Ihe LER focuses exclu-4 sively upon events and remedial actions which have already occurred and analyzes them for their-safety significance.
LER's serve basically two regulatory purposes. The main purpose of
..this reporting requirenent is to permit the NBC to confinn that appro-priate corrective actions have been taken. The information is also used by the Staff, inter alia, to ensure there are 'no generically related inplications of the reported matter and to improve the Staff's regulato -
- ry program. Thus, the mere filing of an LER does not signify the existence of a significant safety issue which meets the test- for reopen-ing a closed record.' In Cmmonwealth Edison Capany (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41,18 NBC 104 (1983), the Licens-ing Board refused to equate the issuance of a notice of violaticm with the existence of a significant safety matter in determining not to
--reopen the record. A fortiori, a report subnitted by a licensee relat-i ing to past events only ' indirectly and peripherally relating to a contention would not support reopening of the record.
4 Because no safety question presently exists, there would be no useful purpose in conducting a hearing to revisit the _ events which led
. -up to the LER at issue and'the inmediate and further corrective actions taken. 'Ihe Cmmission's precedents do not require that the record be reopened to consider these now acadenic matters. As discussed in LER 85-080 at A-5, the further corrective actions taken regarding this matter included:
i
~
O t
- ~
Necessary engineered barriers have been in-stalled in the Unit 2 construction openings and higher curbs have been installed at pennanent plant accessways to assure that floodwaters will not enter the control structure to the extent that the loss of safety-related equignent will result.
To assure that this cognitive error was an isolated event, project dtv'wntation was reviewed to confirm that safety-related struc-tures or equignent associated with the operation of Unit I would not be adversely impacted by the-inccmplete status of Unit 2. Additionally, field walkdowns or engineering evaluations were performed as necessary. No additional instances of adverse impact on Unit 1 structures or equipnent were identified as a result of this effort. In addition, procedures have been developed which specifically address the condi-tion of loss of the Control Structure cooling.
As testified to at the evidentiary hearing, the plant's design basis for flood protection assures that there would be no loss of function of safety-related egaipaent (Boyer, Tr. 9030) . ME apparently does not understand that protection of safety-related equipment does not mean that water would not enter the turbine building should a postulated flood occur. As testified during the hearing, water frcm the cooling tower basin break is assumed to enter the turbine building and flow into the lower elevations (Benkert, Tr. 9029).E In fact, the Board assumed for purposes of analysis, that all turbine building main doors on the north side were open.15/
M/ Contrary to ME's assertion (ME Motion at 3) , the NBC Staff recognized during the hearings that water may enter the turbine building (Lefave, ff. Tr. 9047 at 2; Wescott, Tr. 9313) .
15/ Liznerick, supra, LBP-84-31, 20 NBC 446, 491 (1984) .
l t
By the addition of engineered barriers and higher curbs, the design basis has been met. Inasnuch as ME was unable to convince the Licens-ing Board or Appeal Board that there is any deficiency in this design basis, ' and inasnuch as it has not alleged any deficiency in the manner the Licensee has now inplemented the design basis, there is no signifi-cant safety issue to litigate. ME has failed to demonstrate by refer-ence to the record of this proceeding or any other authority that the corrective actions taken are in any way insufficient or that additional corrective actions are necess ef.
NE further ignores the statement in LER 85-080 mncerning the additional corrective actions taken, i.e., that project documentation was reviewed to confirm that safety-related structures or equiptent 4
associated with the operation of Unit 1 would not be adversely impacted by the incouplete status of Unit 2.16/ NE does not dispute this nor does it dispute the conclusion that "[n]o additional instances of adverse impact on Unit 1 structures or equipnent were identified
. . . . 17/
Moreover, ME does not dispute in any meaningful way the adequacy of the procedures developed by Licensee to address the loss of the control structure cooling.18/ It should again be emphasized that these 6/ LER 85-080 at A-5.
17/ Id. ME's mere reference to Licensee Event Report 85-030, which
~ documented a matter previously identified and corrected by Licensee, is without significance to the question of whether similar interactions currently exist.
18/ LER 85-080 at A A-4.
i written procedures were developed even though the occurrence of a 1
condition such as - reported in the LER is precluded by the design en-hancements discussed above. EDE simply states without basis that use of
, the procedures do not represent "a reliable alternative."El EDE qaotes the LER to the effect that "a potential existed for the occurrence of an operating condition not covered by the plant's operat-ing or emergency procedures,"20/ thus recognizing the retrospective nature of the condition reported in the LER. It nevertheless states
. without basis that the possibility of flooding is "an in==hte one, without any sure procedure for offsetting its effects."E EDE also is mistaken concerning the use of sandbags at Limerick.
The placement of these sandbags was part of the tenporary measures taken 4
in response to the possible arrival of hurricane Gloria at the site.
The sandbags were used only as an interim protective measure until the further corrective actions described in the LER were taken. It is no longer necessary that they be in place to protect the facility against a postulated flood. 'Iherefore, there is no -issue to litigate concerning the =vih5 barrier.
Finally, EDE has not met the third test for a motion to reopen, i.e., that a 'different result might have been reached had the newly proffered material been considered initially. In response to the Waterford reopening request, the Appeal Board determined that the focus
-M/ EDE Motion at 2-3.
20/ Id. at 1 (enphasis supplied), citing LER 85-080 at A-2.
21/ Id.
a v s~c, , - v- -
, , - , , . - , , , - , , - - -e.,, - - - , - - . . - -. - , - , , - - , - - . , - , ,----,e---- ,,.n,. - , - -
9 must be on tha "present safety significance" of the alleged safety deficiency.EI As discussed in LER 85-080, there was no potential hazard to the health and safety of the public even during the interim g period when the Unit 2 engineered barriers and curbing were not in place because the plant could have been safely shut down, even assuming a loss of the chilled water systems.EI Inasnuch as additional corrective measures have now been taken, there is no present safety significance associated with the LER. FCE does nct seriously dispute this, as its pleading focuses on alleged previous deficiencies. It states that the NIC "would have had to consider mitigating action to prevent (flood-ing]."24/ To the contrary, such mitigating steps have already been taken and their adequacy is not disputed. Thus, EDE cannot prevail on the third prong of the test for reopening.
There is absolutely no basis for staying the operation of Unit 1 as requested by EVE in conclusionary fashion.E FOE is of the mistaken belief that flooding will at this time prevent safe shutdown of the reactor. As previously discussed, there is no basis for asserting that there is now any possibility of an impact on the public health and safety. The request for a stay is without basis, fails to address the M / Waterford, supra, AIAB-753, 18 NIC 1321, 1328 (1983) (enphasis added).
23/ LER 85-080 at A A-4.
24/ EDE Motion at 2.
25/ Id. at 1.
l I
): ,
4 criteria for a stay and should be sumarily denied, as the Appeal Board has ruled in denying similar requests.26/
Conclusion For the foregoing reasons, FOE's motion to reopen the record on the new matters alleged and its request for a stay should be denied.
Respectfully subnitted, CONNER & WEITERHAHN, P.C.
, . )-
Troy nner, Jr.
Mark J. Wetterhahn Nils N. Nichols Counsel for Licensee November 22, 1985 26/ See, e.g. , Limerick, supra, ALAB " Order" (August 1,1985) .
I b
COLKE TLp' UShRC UNITED STATES OF AMERI'd3 NOV 25 g0:19 NUCLEAR REGULATORY COMMISSION GFFm:
In the Matter of OccRghGpki$}r Philadelphia Electric Company ) Docket hs.50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Answer to Petition by Friends of the Earth for Review of ALAB-819,"
" Licensee's Opposition to Limerick Ecology Action's Petition for Review of ALAB-819" and " Licensee's Answer to Motion by R.L. Anthony / Friends of the Earth to Reopen the Record on Its Contentions V-3a and V-3b and Motion for a Stay," dated November 22, 1985 in the captioned matter have becr. served upon the following by deposit in the United States mail this 22nd day of November, 1985:
Samuel J. Chilk, Secretary Lando W. Zech, Jr.,
Office of the Secretary Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Nunzio J. Palladino, Christine N. Kohl, Chairman Chairman Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Thomas M. Roberts, Commissioner Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission James K. Asselstine, Washington, D.C. 20555 Commissioner U.S. Nuclear Regulatory Gary J. Edles Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board l - U.S. Nuclear Regulatory Frederick M. Berrthal, Commission
+ Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
l Helen F. Hoyt, Esq. Atomic Safety and Licensing Chairperson Appeal Panel Atomic Safety and U.S. Nuclear Regulatory Licensing Board U.S. Commission Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary Dr. Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Ann P. Hodgdon, Esq.
Washington, D.C. 20555 Counsel for NRC Staff Office of the Executive Dr. Jerry Harbour Legal Director Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Angus Love, Esq.
107 East Main Street Atomic Safety and Licensing Norristown, PA 19401 Board Panel U.S. Nuclear Regulatory Robert J. Sugarman, Esq.
Commission Sugarman, Denworth &
Washington, D.C. 20555 Hellegers 16th Floor, Center Plaza Philadelphia Electric Company 101 North Broad Street ATTN: Edward G. Bauer, Jr. Philadelphia, PA 19107 Vice President &
General Counsel Director, Pennsylvania 2301 Market Street Emergency Management Agency Philadelphia, PA 19101 Basement, Transportation and Safety Building Mr. Frank R. Romano Harrisburg, PA 17120 61 Forest Avenue Ambler, Pennsylvania 19002 Kathryn S. Lewis, Esq. City of Philadelphia Municipal Mr. Robert L. Anthony Services Bldg. 15th and JFK Friends of the Earth of Blvd. Philadelphia, PA 19107 the Delaware Valley 106 Vernon Lane, Box 186 Moylan, Pennsylvania 19065 l
I 4
Charles W. Elliott, Esq. Spence W. Perry, Esq.
325 N. 10th Street Associate General Counsel Easton, PA 18042 Federal Emergency Management Agency Phyllis Zitzer, Esq. 500 C Street, S.W., Rm. 840 Limerick Ecology Action Washington, DC 20472 P.O. Box 761 762 Queen Street Thomas Gerusky, Director Pottstown, PA 19464 Bureau of Radiation Protection Zori G. Ferkin, Esq. Department of Environmental Assistant Counsel Resources Commonwealth of Pennsylvania 5th Floor, Fulton Bank Bldg.
Governor's Energy Council Third and Locust Streets 1625 N. Front Street Harrisburg, PA 17120 Harrisburg, PA 17102 James Wiggins Jay M. Gutierrez, Esq. U.S. Senior Resident Inspector Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 631 Park Avenue P. O. Box 47 King of Prussia, PA 19406 Sanatoga, PA 19464 Timothy R.S. Campbell Mr. Ralph Hippert Director Pennsylvania Emergency Department of Emergency Management Agency Services B]51 - Transportation 14 East Biddle Street Safety Building West Chester, PA 19380 Harrisburg, PA 17120 Theodore G. Otto, Esq.
Department of Corrections Office of Chief Counsel P.O. Box 598 Lisburn Road Camp Hill, PA 17011 Nils N. Nichols