ML20148K277

New England Coalition on Nuclear Pollution (Necnp) Reply to Applicant & Staff Responses to Necnp Motion for Reconsideration of Board Denial of Necnp 880217 Motion to Compel.* Certificate of Svc Encl

ML20148K277
Person / Time
Site:	Seabrook
Issue date:	03/22/1988
From:	Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20148K248	List: ML20148K243 ML20148K277
References
OL-1, NUDOCS 8803310062
Download: ML20148K277 (8)

Text

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DOCKETCO March 22, 1988 USNHC UNITED STATES NUCLEAR REGULATORY COMMISSION eg g g g g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE IJ M.GLIO '

00CXC Tina >. Sr.;nw

) BWddi In the Matter of )

)

Public Service Company of )

New Hampshire, et al. ) Docket No. 50-443 OL-1

)

(Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY

) PLANNING & TECHNICAL

) ISSUES

)

NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S REPLY TO APPLICANTS' AND THE STAFF'S RESPONSES TO NECNP'S MOTION FOR RECONSIDERATION OF THE BOARD'S DENIAL OF NECNP'S MOTION TO COMPEL. DATED FEBRUARY 17, 1988 On March 1, 1988, the New England Coalition On Nuclear Pol-lution (NECNP) filed a motion requesting that the Licensing Board reconsider its Order dated February 17, 1988 denying NECNP's motion to compel, and ruling that the issue of "microbiologically induced corrosion" ("MIC") is not within the scope of NECNP Con-tention IV.1 NECNP offers the following in response to the statements made in Applicants' and the NRC Staff's responses, dated March 14, 1988, and March 11, 1988,2 respectively, as to why the scientific and expert opinion presented by NECNP would be disregarded by the Board.

1 "Motion for Reconsideration of the Board's Denial of NECNP's Motion to Compel, dated February 17, 1938," dated March 1, 1988.

2 "Applicant's [ sic) Response to NECNP's Motion for Reconsidera-tion of the Board's Order Denying NECNP's Motion to Compel,"

dated March 14, 1988; "NRC Staff Raponse to NECNP Motion for Reconsideration of the Board's Denial of NECNP's Motion to Com-pel," dated March 11, 1988.

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I First and foremost, Applicants and the Staff have utterly failed to controvert the expert testimony and scientific studies submitted by NECNP in support of its position that MIC is encompassed within the plain language of NECNP Contention IV.

In lieu of expert opinion as to the meaning of NECNP Contention IV, Applicants and the staff rely solely on the "lay" interpreta-tion of the word "accumulation," and conclude that "accumulation" of "aquatic organisms" can only refer to the accumulation of one type of "aquatic organisms," i.e. macro-biological organisms (clams, mussels, and barnacles). However, Contention IV does not state that it is limited to only accumulations of macro-biological aquatic organisms, and the Staff and Applicants have utterly failed to present any evidence controverting the expert opinion provided by NECNP that the use of the term "aquatic organisms" in the bio-chemistry field refers to both micro-biological and macro-biological organisms.3 Second, Applicants and the Staff suggest that the Conten-tion's use of the term "accumulation" was meant to limit Conten-tion IV to only one of the detrimental effects of such accumula-tions, i.e. blockage of cooling systems, and subsequent impair-ment of heat transfer capabilities. However, as Dr. Bryers' affidavit points out, there are a number of detrimental effects of the "accumulation" of "aquatic organisms." Another effect of 3 gen Bryers Affidavit, at Para. 8, attached as Exhibit A, to "NECNP's Motion for Reconsideration."

the "accumulation" of microbiological "aquatic organisms" is cor-rosion.4 Applicants and the Staff have offered nc expert opinion that controverts this.

Applicants and the Staff both suggest that the Board should disregard Dr. Bryers' testimony. Applicants rest merely on the bald assertions of counsel that Dr. Bryers' testimony is "unpersuasive;"5 the NRC Staff merely states, again without sub-mitting any controverting evidence of opinion, that Dr. Bryers' opinion "is entitled to little, if any weight.n6 However, Applicants and the Staff have countered the expert opinion offered by NECNP as to the scientific meaning of the terms used in NECNP Contention IV with nothing more than the unsupported assertions of counsel as to their meaning.

It is ludicrous that the Board should give the unsupported "lay" interpretations offered by the legal counsel for 4 See Bryers, J.D., Characklis, W.G., Zelver, N., and Nimmons, M.G., "Microbial Film Development and Associated Energy Losses,"

at 12.14-1, Paper No. 12-15 presented at the Proc. 6th OTEC Con-ference, "Ocean Thermal Energy for the '80's," Washington, D.C.,

June 19-20, 1979, an excerpt of which is attached as Exhibit C to "NECNP's Motion for Reconsideration," and Bryers Affidavit, at Para. 8, attached as Exhibit A, to "NECNP's Motion for Reconsideration."

l 5 "Applicant's Response to NECNP's Motion for Reconsideration of the Board's Order Denying NECNP's Motion to Compel," dated March 14, 1988, at 3.

6 "NRC Staff Reponse to NECNP Motion for Reconsideration of the Board's Denial of NECNP's Motion to Compel," dated March 11, l

1988, at 5 n. 3.

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Applicants' and the staff greater weight than the expert opinion 1

provided by NECNP. Where expert opinion evidence is submitted by only one side, as is the case here, an agency may disregard it only under three circumstances: where the agency posseses the expertise to substitute its judgment in the place of the experts'; where their is contrary evidence already in the record; and where the expert's testimony has minimimu credibility. Stein, Mitchell, and Mezir< Administrative Law, S 28.06 (Mathew-Bender, 1987). None of these circumstances are present here.

First, the issue at hand involves the interpretation of techni-cal, scientific terms used in the field of microbiology and biochemical engineering, which is not an area in which the Com-mission possesses expertise. Second, there is no contrary evi-dence in the record, other than the unsupported "lay" opinion of Applicants' and the Staff's legal counsel. Finally, as is clearly demonstrated by Dr. Bryers' curriculum vitae,7 Dr. Bryers is one of the country's forec.ost experts on the subject of the effects of biological fouling on engineered cafety systems. His opinion as to the meaning and scope of the plain language of the plain language of NECNP Contention IV is clearly e itled to 7 Dr. Bryers is the author of over thirty published articles in scientific journals and treatises on the subject of microbial fouling and its effects in engineered systems, including nuclear power plant heat-exchange systems, and is a recognized expert in this area. His Curriculum Vitae is attached as Exhibit B to NECNP's Motion for Reconsideration.

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great weight.8 Indeed, the Staff's assertion that Dr. Bryers' opinion is entitled to little weight because it is offered six years after Contention IV was formulated is patently absurd. NECNP has pro-vided this Board with scientific studies dating back to 1977 that demonstrate that MIC was a recognized safety concern and detrimental effect of the process of microbial fouling, and no effort has been made to rebut this.9 Dr. Bryers' so-called "post hoc" interpretation of this. Contention is necessitated by the fact that its contention was wrongfully dismissed at an earlier stage in this proceeding. To disallow expert opinion as to the scientific meaning of the plain langauge of the Contention l because it cannot, due to an error not of NECNP's making, be made contemporaneous 1y, would be blatantly unfair and prejudicial to NECn?, and would cripple NECNP's P.bility to litigate this conten-l tion in any meaningful way.

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l 8 While Dr. Bryers' opinion as to "the scope of NECNP Contention IV" is, admittedly, the ultimate issue of this case, Dr. Bryers' 3xpert opinion of the technical, scientific meaning of the terms used in the contention, and his expert opinion as to the range of l detrimental effects that are caused by the process referred to in l

the contention, are entirely appropriate and admissible.

l l 9 Indeed, Dr. Bryers himself was the author of one of these scientific studies. See Norman, G., Characklis, W.G., and Bryers, J.D., "Control of Microbial Fouling in Circular Tubes with Chlorine," 18 Development in Industrial Microbioloav, pp.

581-590 (1977), excerpt attached as Exhibit G to NECNP's Motion

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i j for Reconsideration, at 8.

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Finally, contrary to the Staff's suggestion,10 the fact that the Federal Register notice referenced by NECNP Contention IV does not mention corrosion as one of the detrimental effects of biofouling is irrelevant. As Applicants and the Staff have pointed out several timos, Intervenors are bound by the literal terms of their admitted contention. Texas Utilities Electric Co.

(Comanche Peak Steam Electric station), ALAB-868, 25 NRC __, Slip Op. at 37 n. 83. The same goes for Applicants and the Staff.

The literal terms of NECNP Contention IV plainly encompasses all of the detrimental effects of the "accumulation" of "aquatic organisms" in cooling systems. This includes both blockage and l

subsequent heat transfer impairment caused by the build-up of i macro-biological organims, and microbiologically induced corro-sion and subsequent leakage, caused by the accumulation of micro-biological organisms.

Respectfully submitted, -

[4s4 ftQ Andraa Ferster HARMON & WEISS 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500 l

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10 "NRC Staff Reponse to NECNP Motion for Reconsideration of the l

Board's Denial of NECNP's Motion to Compel," datcd March 11, 1988, at 2.

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00LKETED UMHC CERTIFICATE OF SERVICE I certify that en March 22, 1988, copies of the foregoing pleading were served by first-class mail on 11 parties yppdrog g g, the attached service list.

0 #F77siasL9vici

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Andrea Ferster ~ ' (

. .V ..

SEABROOK SERVICE LIST - ONSITE LICENSING BOARD

'Sheldon J. Wolfe, Chairman 155 Washington Road Office of General Counsel U.S.NRC Rye, New Hampshire 03870 U.S. NRC Washington, D.C. 20555 Washington, D.C. 20555 Richard E. Sullivan, hiayor

• By hand

• Dr. Jerry Harbour City Hall hir. Angie hiachiros, U.S. SRC Newburvoort, MA 01950 Chairman " By Overnight Mail Washingten, D.C. 2055.i Town of Newbury Alfe:d V. ', argent, Chairman Town Hall,25 High Road

• Dr. Emmeth A. Luebke Boec'. Selectmen Newbury,MA 01951 5500 Friendship Blvd. Town of Salisbury, hfA 01950

' Apartment 1923N George Dana Bisbee, Esq.

Chesy Chase, MD 20815 Senator Gordon J. Humphrey Geoffrey M. Huntington, Esq.

U.S. Senate Office of the Attorney General Atomic Safety and Licensing Washington, D.C. 20510 State House Annex Board Panel (Attn. Tom Burack) Concord, NH 03301 U.S. NRC l Washington, D.C. 20555 Sclectmen of Northampton Allen Lampert l Northampton, New Harp- Civil Defense Director Town of Brentowood Atomic Safety and Licensing shire 03826 Appetl Board Panel Exeter,NH 03833 U.S. NRC Senator Gordon J. Humphrey Washington, D.C. 20555 1 Eagle Square, Ste 507 Richard A. Hampe, Esq.

Concord, NH 03301 Hampe and McNicholas Docketing and Service 35 Pleasant Street U.S. NRC Michael Santosuosso, Concord, NH 03301 Washington, D.C. 20555 Chairman I Board of Selectmen Gary W. Holmes, Esq.

Mrs. Anne E. Goodman Jewell Street, RFD # 2 Holmes & Ellis Board of Selectmen South Hampton, NH 03842 47 Winnacunnent Road i 13-15 New Market Road Hampton, NH 03842 Durham, NH 03842 Judith H. Mizner, Esq.

Silverglate, Gertner, et al. William Armstrong William S. Lord, Selectman 88 Broad Street Civil Defense Director Town Hall- Friend Street Boston, MA 02110 10 Front Street l

Amesbury, MA 01913 Exeter, NH 03833 lep. Roberta C. Pevear Jane Doughty Dre'. water Road CaMn A. Canney SAPL Hampton, Falls, NH 03844 City Manager l 5 Market Street City Hall i Portsmouth, NH 03S01 Phillip Ahrens, Esq. 126 Daniel Street Assistant Attorney General Portsmouth, NH 03S01 Carol S. Sneider, Esquire State House, Station # 6 Assistant Attorney General Augusta, ME 04333 Matthew T. Brock, Esq.

1 Ashburton Place,19th Floor Shaines & McEachern Boston, MA 02108 "Thomas G. Dignan, Esq. P.O. Box 360 R.K. Gad II, Esq. Maplewood Ave.

l Stanley W. Knowles Ropes & Gray Portsmo 2th, NH 03801 l Board of Selectmen 225 Franklin Street 1 P.O. Box 710 Boston, MA 02110 Sandra Gavutis North Hampton, NH 03826 RFD 1 Box 1154 Robert A. Backus, Esq. East Kensington, NH 03827 J.P. Nadeau Backus, Meyer & Solomon Town of Rye 111 Lowell Street Charles P. Graham, Esq.

Manchester, NH 03105 McKay, Murphy and Graham 100 Main Street

' Gregory A. Berry, Esq. Amesbury, MA 01913