ML20149K995

Memorandum & Order.* Order ALAB-886 Denying New England Coalition on Nuclear Pollution 880202 Motion to Reopen Record & Admit New Contention Challenging Environ Qualification of RG59 Coaxial Cable.Served on 880222

ML20149K995
Person / Time
Site:	Seabrook
Issue date:	02/22/1988
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	NEW ENGLAND COALITION ON NUCLEAR POLLUTION
References
CON-#188-5651 ALAB-886, OL-1, NUDOCS 8802240062
Download: ML20149K995 (11)

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.Y DOCMETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .

18 F8 22 N0 43 ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: 'QWg'-j':[Q kltir .. .

Alan S. Rosenthal, Chairman February 22, 1988 Howard A. Wilber (ALAB-886) 4

) SERVED FEB 221988 In the Matter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al. ) 50-444-OL-1

)

(Seabrook Station, Units 1 ) (Onsite Emergency Planning and 2) ) and Safety Issues)

)

Dean R. Tousley, Washington, D.C., for the intervenor New England Coalition on Nuclear Pollution.

Thomas G. Dignan, Jr., Kathryn A. Selleck, and Deborah S. Steenland, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.

Gregory Alan Berry and Edwin J. Reis for the Nuclear Regulatory Commission staff.

gMORANDUM AND ORDER On February 2, 1988, intervenor New England Coalition on Nuclear Pollution (Coalition) filed a motion to reopen the record in the onsite emergency planning and safety issues phase of this operating license proceeding involving the Scabrook nuclear facility. The motion further seeks the admission of a new contention challenging the environmental qualification of the RG59 coaxial cable that was supplied by 8802240062 880222 PDR 0 ADOCK 05000443 PDR

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the vendor International Telephone and Telegraph Corporation l (ITT) for use in the radiation monitoring system.1 We agree with the applicants and the NRC staff that the coalition has not met the first of the three established l

criteria for the reopening of a record to consider additional evidence. More specifically, the Commission's Rules of Practice require the Coalition to demonstrate, inter alia, that its motion either is timely or raises an "exceptionally grave" issue that should be considered even though untimely presented.2 It is manifest that the motion is not only extremely tardy but also falls far short of providing the necessary showing on the safety significance of the issue the Coalition seeks now to inject into the i

proceeding.

1.a. At a hearing before the Licensing Board and under the aegis of its Contention I.B.2, the Coalition litigated the environmental qualification of a different type of coaxial cable furnished by ITT. That cable, identified as RG58, is used for data transmission in the facility's 1

By virtue of General Design Criterion 4 in Appendix A to 10 CFR Part 50, ccmponents such as the RG59 cable must be capable of continuing to perform their intended function for such period as might be necessary after, e.g., a loss-of-coolant accident -- that is, they must be "environmentally qualified."

2 See 10 CFR 2.734 (a) (1) .

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3 computer systems. No tests were performed on it to determine whether it was environmentally qualified. Rather, according to information contained in the applicants' equipment qualification file (EQF) pertaining to certain ITT cables (which was placed into evidence by the Coalition on Septenter 30, 1986),3 the affirmative conclusion on that question was reached solely on the basis of tests performed on the RG59 cable.

The Coalition did not dispute that the RG59 test results established the environmental qualification of that cable. It did, however, maintain that those results could not properly be employed to qualify the untested RG58 cable as well. The Licensing Board rejected that argument in its l March 25, 1987 partial initial decision authorizing the issuance of a low-power license for the Seabrook facility.4 On an appeal from that decision, the Coalition renewed itc claim.

, In ALAB-875, issued on October 1, we considered the matter. Early in the discussion, we stressed that the See Tr. 472-73. This EQF, identified as Electrical Equipment Qualification File No. 113-19-01, was introduced into evidence as the Coalition's Exhibit 4. One of the >

purposes of EQFs is to record the manner in which particular I equipment is determined to be environmentally qualified.  ;

4 LBP-87-10, 25 NRC 177, 210-11.

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26 NRC , (slip opinion at 35-39).

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Coalition did "not dispute that the . . . RG59 coaxial cable (was) properly demonstrated to be environmentally qualified" but was complaining merely that such a demonstration was lacking with regard to the RG58 cable.6 We then went on to find a lack of any apparent basis for the Licensing Board's conclusion that the environmental qualification of the RGS8 cable was "adequately documented" in the applicants' EOF file (i.e., that the RG59 cable test results could serve as the foundation for such qualification) .7 As a consequence, we remanded the issue to the Licensing Board with instructions either to point to such a foundation in the existing record or to reopen the record for further exploration of the RG58 cable issue.8 In an October 16, 1987 memorandum (unpublished), the Licensing Board set forth what it deemed to be the requisite record support for the challenged finding that the RG58 cable was environmentally qualified. On our invitation, the Coalition (as well as the applicants and the NRC staff) submitted written comments on the substance of the memorandum. In the course of its comments, the Coalition attempted to raise the question whether the tests applied to 6

Id. at (slip opinion at 36-37).

Id. at (slip opinion at 39).

8 Ibid.

5 the RG59 cable were sufficient even to qualify that cable.9 We rejected the attempt. Although deciding in ALAB-882 that the issue of the environmental qualification of the RGS8 cable had to be remanded once again to the Licensing Board, we had this to say with regard to the newly surfaced RG59 quertion: "That question was not presented on the Coalition's appeal from the partial initial decision and we therefore do not consider it."10

b. The short of the matter, therefore, is that for the entire period that its Contention I.B.2 was in litigation below, as well as during the course of the briefing and argument of its appeal from the Licensing Board's action on that contention, the Coalition accepted (implicitly if not explicitly) the environmental qualification of the RG59 cable. It was not until last November -- in a document that was supposed to be confined to the RG58 cable question that had been presented below and renewed on appeal -- that the Coalition endeavored to shift directions on the acceptability of the RG59 cable. And another three months elapsed before the Coalition undertook to give effect to 9

See New England Coalition on Nuclear Pollution's Supplemental Memorandum Regarding Environmental Qualification of RG58 Coaxial Cable (November 4, 1987) at 6.

10 27 NRC , n.14 (January 8, 1988).

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that shift through the vehicle of the motion to reopen the record that is now at hand.

At least some of the delay in presenting the issue might have been excusable had there been some recent development that brought into question for the first time the environmental qualification of the RG59 cable., But, as the coalition recognizes, no such justifi* cation is available to it. To the contrary, as will be seen shortly, the Coalition's proposition that the RG59 cable is not environmentally qualified rests entirely on disclosures in the applicants' EQF -- which the Coalition itself introduced into evidence well over a year ago. Confronting this fact, the Coalition tells us that it did not become aware of the portion of the EQF assertedly establishing the inadequacy of the RG59 cable "until recently, when we were immersed in the issue of RG58 qualification."11 Leaving aside whether the Coalition had an obligation to familiarize itself with the content of the EQF before putting it into evidence as a Coalition exhibit, it appears that that intervenor became "immersed" in the RG58 cable issue no later than the time of the triefing of its appeal from the partial initial 1

d-"n ion, a v -oring. Consequently, we remain unpersuaded

'I. s * - 'ation to Reopen Record and Admit New cv-<ertie' oruary 2, Motion *]

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1988) [hereinaftsr "Coalition i

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7 that there is a satisfactory explanation for the lateneas of the hour.

2. As the Commission stressed in its Perry decision two years ago, the burden is on the party seeking the reopening of an evidentiary record to demonstrate in its moving papers that the criteria for granting such relief '

have bean met.12 In that case, the reopening motion was timely and the question was whether it raised a significant safety issue.13 Here, to repeat, because the motion is untimely, the Coalition's burden is considerably greater:

it must establish that the issue it would now add to the proceeding is not merely "significant" but "exceptionally-grave."

But the fact is that the Coalition's motion does not establish the existence of any safety issue it 'ar as the RG59 cable is concerned. All that we are told in either the motion itself or the supporting affidavit is that (1) the applicants' EQF indicates that the insulation resistance requirement for RG59 cable is 10,000 megohms per 1000 feet; 12 Cleveland Elcctric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233 (1986).

3 See infra pp. 9-10. 10 CFR 2.734 (a) (1) requires that, even if timely filed, a reopening motion address a significant safety or environmental issue and demonstrate that a meterially different result would be or would have been likely had the newly proffered evidence been considered initially.

8 and (2) "[t]he insulation resistance measurements of samples of RG59 cable during environmental qualification testing fell as low as 300 megohns 1.7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> into the steam / chemical spray, high humidity exposure tests, and remained balow the required level for up to 14.5 days."I4 While that may be '

so, these questions remains does the differential have any safety significance and, if so, precisely what is it? On that score, the motion and supporting affidavit are singularly unilluminating. More particularly, we are not favored with the foundation for the Coalition's apparent assumptions that (1) the 10,000 megohm value was intended to reflect an acceptance criterion for perferniance of the RG59 cable under accident conditions; and (2) that cable will accordingly be unable to perform its intended function in an accident environment. Yet the validity of neither of those assumptions is so obvious as to be susceptible of official notice. To the contrary, both have been challenged in affidavits supplied in connection with the oppositiori of the applicants and the staff to the reopening motion. The applicants' affiant avers that the 10,000 megohm value was nothing more than a procurement specification having no relationship to the performance of the cable under accident 14 Coalition Motion at 4. See also ~~id., Affidavit of Robert D. Pollard at 1-2.

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9 conditions.15 He goes on to assert that the RG59 cable test results reported in the EOF and relied upon by the Coalition demonstrate that that cable will withstand an accident 6

environment. For their part, the staff's affiants reach essentially the satae conclusion.

In these circumstances, the teachings of the Commission in Perry are not simply apposite but controlling. The motion to reopen in that case rested upon a recent earthquake in the vicinity of the Perry plant that assertedly exceeded certain facility seismic design parameters.

Although not challenging the characterization of the earthquake, the applicants and the staff maintained that the event lacked safety significance. Upon considering 1

See Applicants' Opposition to Motion of NECNP to Reopen the Record and Admit Late-Filed Contention (February 12, 1988), Affidavit of Richard Bergeron at 2-3. ,

16 Id. at 3-4, 1

See NRC Staff's Response to NECNP Motion to Roopen Record and Admit New Contention (February 17, 1988), Oo;.at Affidavit of Amritpal S.

Gill and Harold Walker at 6-11.

The affidavit o!so indicates that the 10,000 megohm value is not rooted in any regulatory requirement. Id. at 10-11.

It is noteworthy that the Coalition was on prior notice

! that at least the applicants would challenge any endeevor to use the 10,000 megohm insulation resistance value as e:.

acceptance criterion for accident conditions. See ALAB-882, <

27 NRC at n.12. In that circumatance, it ia especially surprising that the Coalition made no attempt in its motion and suppcrting affidavit to flesh out its contrary view that that value must be taken as bearing upon the abil,ity of RG59 cable to perform its intended function in an att : dent environment.

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the_ papers before us, we decided that, before passing upon the reopening motion, a brief hearing should be conducted for the purpose of exploring further the various claims on the issue of safety significance. The Commission decided otherwise. . Based upon the determination that the movant had not shown affirmatively in its motion papers that the earthquake had safety significance because it exceeded the facility's seismic design, the Commission vacated our order calling for the exploratory hearing and denied the motion to reopen. A different ultimate result could scarcely be reached here given the fact that, despite being obligated to establish affirmatively the existence of an "exceptionally grave" safety issue, the Coalition's motion papers failed to demonstrate the presence of an issue of any safety significance.

The Coalition's motion to reopen the record on the environmental qualification of the RG59 cable is denied.18 18 Although we have concluded that the Coalition has failed to demonstrate the safety significance of its concerns about the RG59 cable, our denial cf its motion to teopen the adjudicatory proceeding is without prejudice to the fi. ling of a petition with the Director of the NRC's

, Office of Nuclear Reactor Regulation pursuant to 10 CFR i

2.206. Tla.t section authorizes the filing of a petition

! seeking the institution of a show cause proceeding for the i modification, suspension, or revocation of a license or l *such other action as may be proper." Section 2.206 l- (Footnote Continued) i

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11 It is so ORDERED.

FOR THE APPEAL BOARD bbMr. _)_A C. Je # Sh6emaker Secretbry to the Appeal Board e

1 (Footnote Continued) petitions may be filed at any time and are the appropriate means for bringing to the Commission's atte:Ation a party's safety concerns that, for one reason or another, cannot be raised in a licensing proceecing.