ML20154P386
| ML20154P386 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/23/1988 |
| From: | Bergquist S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#488-7136 ALAB-899, OL-1, NUDOCS 8810030044 | |
| Download: ML20154P386 (14) | |
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N U C L E A F. RE G UL A T O R Y C OMMISS!0 f:
BEFORE THE COMfilSSION In the Mcttet of Occket hos. 50-443 OL-01 F U f> LIC SE R VIC E C OMP A N Y O F 50-444 OL-0)
N E W H A l' P S H IR E, ej,al.
(On-site Emergency ) Planning l
and Safety Issues (Seabrect Station, l' nits 1 ar.c T)
.w FPC !.T AFF RESP 0 HSE TO flew ENCL AhD CO ALITION ON flV C LE A R P0Lt.U TIO f;'S PETIT 10 7. F O R R EVIEll 0 F AL A B-890 O
Stephen A. Dergquist Counsel for N R C Staf' September 23, 1908 l
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Ut:ITED ST AT ES OF AMERIC A N U C L E A F. R E G UL A T O R Y C OM MIS $10 7:
REFORE THE C0 Hit!SSION In the Mr,tter of Docket hos. 50-443 OL-01 FUBLIC SERVICE COMPAtlY OF 50-444 OL-01 (On-site Emergency) Planning N EW H Alt PSHIR E, et al.
and Safety issues e
(Seabrook Station, Units 1 ar.d T)
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FPC ST AFF RESPONSE TO flew ENGL At4D CO ALITION ON tlV C LE A R POLL U TI0 ti'S PETITIV t, FO R REVIEll 0 F A L A B-899 1
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Stephen A. Bergquist Counsel for N R C Sta" September 23, 1908
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter o' Dociet Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW HAMPSHIRE, et al.
On-site Emergency Planning and Safety issues (Seabrook Station, Units 1 and 2)
)
NRC STAFF RESPONSE TO NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S PETITION FOR REVIEW OF ALAB-899 INTRODUCTION On September 12, 1988, the New England Coalition On Nuclear Pollution (NECNP), petitioned the Comnission to review the Appeal Board's decision inALAB-899,II affirming the Licensing Board's unpublished May 12, 1988 Order dismissing NECNP Contention IV.
Prior thereto the Licensing Board had ruled that Contention IV did not erbrace the issue of microbiologically-induced corrosion (MIC), but rather was concerned only with the possibility of a blockage of coolant flow caused by the accumulation of aquatic organisns. El In the face of that ruling NECNP served notice that it would not litigate Contention IV as interpreted by the Licensing Board but reserved the right to appeal whether the Contention encompassed the MIC issue.
See Letter From Andrea Ferster, Esq. to Licensing Board (April 22, 1/
Public Service Conpany of New Hampshire (Seabrook Station, Units 1
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and 2), ALAB-899, 28 NRC (August 23,1988).
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Memorandum and Order (Denying Motion to Cocpel) (February 17,1988)
("February 17, 1988 Order"), recensideration denied, Memorandum and Order (March 18,1988) ("March 18,1988 Order").
2-1988). The Appeal Board upheld both the Licensing Board's interpretation and its dismissal of Contention IV because "a fair reading of the Coali-tion's Contention IV and its stated bosis compels us to conclude that that contention was intended to embrace only cooling system blockage."
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ALAB-899, slip op, at 7.
As explained belew, Cemission review of ALAB-899 is not warranted.
ALAB-899 does nothing more than uphold the Licensing Board's interpreta-tion that the scope of NECNP Contention IV is limited to the issue of whether Applicants' surveillance and inspection program is adequate to detect and prevent possible coolant finw blockace resulting from the buildup of biological organisms and not from corrosion.
This interpreta-tien fully comported with established standards of interpretation and with policy considerations underlying the regulatory recuirements for reason-able specificity in contentions.
The Appeal Board so held.
ALAB-899, passim.
Hence, NECNP's petition does not raise "an important matter that could significantly affect the environment, the public health and safety" cr present "an irportant procedural issue or cuestion of public policy."
For these reasons, NECNP's petition for review should be denied.
DISCUSSION A.
Lecal Standards Petitions for review, and responses in opposition, must satisfy the requirements of 10 C.F.R. I 2.786(b)(2).
Those requirements are:
(i) A concise summary of the decision or action of which review is sought; (ii) A statement (including record citation) where the matters of fact or law raised in the petition for review were previously reised before the Atomic Safety and
3-Licensing Appeal Board and, if they were not why they could not have been raised; (110 A corcise statement why in the petitioner's view the decision or action is erroneous; and (iv) A concise statement why Commission review should be eaercised.
10 C.F.R. I 2.786(b)(2)(1-iv).
The Staff will address each of these points seriatim.
B.
Sumary of ALAB-899 In its August 23, 1988 Order, the Appeal Board affirmed the Licensing Board finding that remanded NECNP Contention IV did not encompass MIC, but rather focused exclusively on the possibility of blockage of coolant flow to safety-related systems caused by the accumulation of aquatic organisms.
ALAB-899, slip op, at 5-6.
The Appeal Board noted that the sole basis of the contention was a Federal Register notice in which the Commission called attention to a previously undiscovered cooling system blockage at several nuclear facilities due to the accumulation of asiatic clams, mussels, other aquatic organisms, and debris.
Id.
In concluding that Contention IV was intended to embrace only cooling system blockage, the Appeal Board also observed that the overall record, including excerpts from NECNP's written submissions and oral argument before the Appeal Beard, pointed toward a concern only with potential cooling system blockage arising from the accumulation of aquatic organisms and debris.
Id. at 8-10.
The Appeal Board stated that had NECNP wished to litigate the adequacy of Applicants' program for controlling MIC, the proper course was for it to have filed a late contention which met the five-factor test set forth in 10 C.F.R. I 2.714(a).
Id. a t 11.
4 C.
The Matters Raised In The Petition Were Raised Below In its petition. NECNP challenges the Appeal Board's determination that Contention IV encompassed only blockage of reactor coolant systems and not degradation caused by 1110. Petition at 5-6.
Further, NECNP objects, in essence, to the Appeal Board's determination that it was unnecessary to consider NECNP's discovery-related requests since these werepredicatedontheinterpretationofContentionIV.E/
Id. at 6-8.
NECNP raised these arguments below. See NECNP Brief, passim.
D.
ALAB-899 Contains No Error Of Fact, Law, or Policy The Appeal Board and the Licensing Board correctly interpreted NECNP Contention IV rot to encompass the issue of MIC.
The arguments in NECNP's Petition do not serve to undernine the Appeal Board's determination, and it should not be disturbed.
A petition to intervene in a proceeding must set forth with particu-larity "the specific aspect or aspects of the matter of the proceeding as L
to which petitioner wishes to intervene." 10 C.F.R. I 2.714(a)(2).
Among the elements that 10 C.F.R. l 2.714(a) and (b) have been construed as requiring is that the petitinrer identify the specific natters as to which the petitioner desires to participate.
Philadelphia Electric Co. (Peach l
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NECNP continues to argue, as it has in earlier stages of this pro.
ceeding, that the Licensing Board erred in denying its February 19 1988 Motion for Leave to Enter Applicants' Land and its motion to compel discovery into circulating, as opposed to cooling, water systems.
These arguments are logically dependent on the validity of NECNP's primary argument regarding the proper scope of its Contention IV.
Since that argument is without rerit. see Section D. post, these contingent claims fall of their own weight an3 need not be further addressed, f
i Bottom Atomic Power Station, Units 2 & 3), CLI-73-10, 6 AEC 173 (1973);
Florida Power and Light Co. (Turkey Point Plant, Units 3 and 4) CLI-81-31, 14 NRC 959, 960 (1981), citing, Public Service Co. of Indiana (Marble Hill 4
Nuclear Generating Station Units 1 and 2), CLI-80-10,11 NRC 438 (1980);
I Consurers Power Co. (Big Rock Point Plant), CLI-81-32, 14 NRC 962, 963 (1981). Where the issue is the scope of a contention, the Appeal Board hts stated that "there is no good reason not to construe the contention and its bases together in order to get a sense of what precise issue the party seeks to raise." ALAB-899, slip op, at 7.
A prime purpose of the reasonable specificity requirement of 10 C.F.R. I 2.714(b) is that other parties be put on notice as to what issues they will have to defend against or oppose.
Philadelphia Electric Co. (Peach Botton Atomic Power Station, Units 2 and 3), ALAB-?16, 8 AEC 13, 20, modified on other grounds, CLI-74-32,8AEC217(1974).S/
The Appeal Board correctly concluded that NECNP Contention IV failed to meet these requirements regarding the subject of MIC.
The theme and focus of the contention is the accumulation of nollusks and other aquatic organisms and debris in Seabrook's cooling systems. The plain and ordi-nary meaning of the language of the contention and its basis sustain the Appeal Board's conclusion that NECNP impermissibly sought to expand the scope of Contention IV to inject an issue into the proceeding which 9-f/
Additionally, a contention drawn by counsel experienced in NRC practice, such as counsel for NECNP, must exhibit a high vegree of spacificity.
Kansas Gas & Electric Co. (Wolf Creek Generating Station), ALAP-E79, 1 NRC 559, 576-577 (1975).
____ __ neither the Licensing Board nor opposing parties had any reason to anticipate.
For example, the contention refers to the need for establishing a "naintenance program for the accumulation of mollusks, other aquatic organisms, and debris in cooling systems,.."
(Emphasisadded). The basis similarly emphasizes "accumulation" and "blockage of coolant systems." In spite of the fact that the basis also mentions "the buildup of fouling organisms or corrosion products on piping walls, althougn not a
severe enough to block water flow during nomal operation, could be dislodged by seismic activity", there is no mention of MIC.
The gravanen of NECNP's concern was the asserted danger of piping blockage or obstruc-tion.
Further, the Federal Register notice which prompted the filing of this contention (47 Fed. Reg. 21653 (May 19, 1982)) concerned potential blockage due to dislodged buildup of various aquatic organisms including clams, mussels, barnacles, and the like.
The tem "microbiologically induced corrosion" or "MIC" is not even mentioned in the notice.
NECNP, in its May 1987 brief appealing the Licensing Board's rejection of Contention IV, stated that "lt]he basis for this contentien was a Federal Register notice dated May 19, 1982, which stated NRC's concerns over the accumulation of asiatic clams, mussels, and other aquatic croanisms in six nuclear power plant reactor cooling systems." b (Emphasis added). This position was reiterated at oral argument before the Appeal Board, during which NECNP's counsel referred to the Federal
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New England Coalition en Nuclear Pollution's Brief in Support of Appeal of Partial Initial Decision Authorizing Issuance of a License to Operate at low Power (May 8, 1987) at 10.
Register notice as the basis for Contention IV. ALAB-899, supra, slip op, at 8-9.
Thus, for five years after the contention was filed, NECNP itself thought it concerned only blockage caused by an accumulation of aquatic organisms and debris, Finally, as pointed out by the Appeal Board, NECNP itself has repeatedly recognized a dichotomy between the blockage problem caused by nicrobiological organisms and leakage caused by MIC, with the tern block-age used solely in the context of the accumulation of microbiological organisms and debris. M.at9-11.
The argument in NECNP's brief was basically that Contention IV broadly refers to "fouling", that scientific literature indicates that MIC is encompassed in "fouling", and that the contention must be construed to
- 1ude the issue of MIC.
As ALAB-899 holds, this path of reasoning is t o tortuous to comply with requirements that contentions must give notice of facts which petitioners desire to litigate and must be specific enough 4
to satisfy the requirements of 10 C.F.R. I 2.714 M.at5-7.
i The foregoing considerations lead to the conclusion that the Appeal i
Board was correct in upnoldino the Licensing Board's ruling that Conten-tion IV cencerned only macrobiologically-caused blockage, and not MIC.
I The Appeal Board made no error of fact, law, or policy.
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E.
- c. omission Review Is Not Warranted i
As 10 C.F.R. 5 2.766(b)(4) makes clear, "the grant or denial of a i
petition for review is within the discretion" of the Comission.
The l
1 Commission has indicated that re'.few will not be granted in the absence I
of a shewing th0t the case "involves an important matter that could 6
_ _ _ _ _ _ _ _ - _ _ _ - _ _ significantly affect the environment, public health and safety....
involves an important procedural issue, or otherwise raises important questionsofpublicpolicy[,]"
10 C.F.R. I 2.786(b)(4)(1).
Further, a petition for review "of matters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and Licensing Board."
10 C.F.R. I 2.786(b)(4)(ii).
NECNP argues that the Comission should take review of its petition because it raises both significant safety issues and important questions of Comission practice and policy.
However, there are none. What is involved here was solely e like interpretation of words of a contention by both a Licensing Board and an Appeal Beard in an individual case. No wide-ranging issue is presented calling for Commissinn review. The Board only followed the self-evident principle tl'at a contention and its suppod-ing bases must be specific enough to apprise opposing parties of the claims they must defend against. N lt is not error for a Licensing Board to exclude contentions or bases that fail this fundarental test. U It is also well settled that the Appeal Board will defer to a licensing board's findings of fact except where the Appeal Bnard's examination of the 6/
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3) ALAB-216, 8 AEC 13, 20, modified on other arounds CLI-74-22 8 AEC 217 (1974).
7/
Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP 85-11, 21 hRC 609, 635 (1985), rev'd and remanded on other grounds, CLI-85-8, 23 NRC 241 (1986); Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), ALAB-819, 2TT[681, 725 (1985).
9-evidenceconvincesitthattherecordcompelsadifferentresult.El fEChP's petitirn for review, therefere, does not raise any irportant factual, legal, procedural, er policy issue.
Further, the Licensing Ecard's dismissal of NECNP Contention IV dees rot relieve the hRC Staff "of its obligatico te ensure the adequacy of the applicants' pretram for detecting and controlling microbiolncically-irduced correrion." ALAE 899, slip cp., n.18 at 11-12.
CQCLL'SION For the reason! ttated ist this resporte, NECNP's Petition for Review of ALAR.-P99 shnold be denied.
Respectfully submitted, h
'C he Stephen A. Bergquist Ceursel for fiFC Staff Pt.ted at Rockville, Paryland this 73rc' day of Septerber,19P.P l
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See Northern State Fower Co. (Monticello Nucleer Gereratir:g Flant, FFTt 17, ADt'-611,12 hRc 301, 30s (19f 0); Niagara Pohawk Power
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Corporatier (Nir,e t'11e Point Nuclear Statier, liniDT,~7DTT6T,1 Mt 3TT,~7t'7 (19'5); Facific Gas ard Electric Company (Diablo Canycri Nuclear Fewer Plant, Units 1 and 2),'AEAB-781, PC ERC 819, 834 Pcwer Plant),'TL AB-837. T3 hRl., 5Y5,~pany (Shearon Harris Nuclear (1984); Ctrolina Power and Licht Cu 5 F (19P6).
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UNITED STATES OF ANERICA 1 %' [0 NUCLEAR REGULATCRY COMMISSICN
{
BEF0tETHEC_0f?!SSION
.g gp 23 p2 50 Ir. the Matter of Docket Nos. 50-44MOL-010,2.h l
50-4400' 01si e 5
PUBLIC SERVICE C0f4FANY OF i
NEWHM:PSHIRE,etal.
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On-site Emergency Plannfr,g and Safety issues (Seabroc! Station, Units 1 and 2)
CEPTIFICATJ,0FSERVICE f
I hereby certify thei copies ef 'hkC STAFF PESPONSE To HEW ENGLAND COALITION ON flVCLEAR POLLUT:0t:'S PETITION FOR REVIEP Or ALAB-CD? in the above-capthntd i
proceeding have been served on the folleving t'y deposit in the United 554tes l
mail, first clast er, as indicr+ad by an s;terisk, by deposit in the Nuclear t
Regulatory Comissien's internal mati system, this 23rd day of Septerber 1988.
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t Sanuel J. Chilk (!!)*
H. J. Flynn, Esq.
Office of the Secretary Assistant General Counsel i
4 U.S. Nuclear Regulatory Comissicn Federal Emergency Panagement l
i Vashington, DC ?0555 Agency t
bc 5472 Shelden J. Wolfe, Esq. Cheiman*
'hn on A;:.inistrative Judge 3
Atmic Sefety and Licensing board Calvin A. Ca9ney l
1-U.S. Pluclear Regulatory Cemission City Fell Wa5bington, DC 20555 I?6 Daniel Street Portsrouth, NH 0300' i
Dr. Jerry Harbour *
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Administrative Judge c bert Carrieg, Chaimon o
1 Atomic Sefety and Licensing Board Board of Selectmen U.S. Nuclear Regulatory Cerrissier Town Office q
Washingten. DC 20555 Atlantic Averue
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l' orth Hampter., NH 03870 l
i Dr. imth A. Luebke i
Adrinistrative Judge Judith H. Mizner, Esq.
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4515 Willard Avent -
Silverglate, Gertner, Eener, L
Chevy Chase, Parybr,d 7C515 Fine, & Goed
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88 Boerd Street j
Philip Ahren. Esq.
Posten, PA 00110 Assistant Attorr,ty General
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Office of the Attorney Ger,eral J. P. Nadeau State hcuse Stetier Peard of Selectrer-At. testa, tif 04333 10 Central Street Rye, NH 03070 Thomas G. Disrer, Jr., Esq.
Pebert I:. Cad, !!!, Esq.
Repes A Gray 225 Franklin Street Pcston, MA 02110 f
8
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i Ca.c. 3. Sneider, Esq.
Mr. Angie Machiros, Chairman Assistant Attorney Generai Board of Selectnen Office of the Attorney General 25 High Road One Ashburton Place,19th Flecr Newbury, MA 09150 Boston, MA 02108 Allen Lampert George Cana Bisbee, Esq.
Civil Defense Director Assistent Attnrney General Town of Brentwood Office of the Attorney General 20 Franklin 25 Capitol Streret Exeter NH 03833 Concora, NH 0?S'd William Armstron0 I
Ellyn r!. Weiss, Esq.
Civil Defense Direct (
Diere Curran, Esc.
Town of Exeter 6
Harmon & Weiss 10 Front Street 2001 S Street, NW Exeter, NH 03833 Suite 430 Washinston, DC 20009 Gary W. Helmr, Esq.
Holmes & Ellss Robert A. B;'ckus, Esc.
47 Winnacunnet Road
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Backus, Meyer & Solomon
' Hampton, NH 83842 116 Lowell Street ifanchester, NF 03106 Atomic Safety and Licensing Appeal Panel (8)*
Paul licEachern, Esq.
U.S. Nuclear Regulatory Conmission Matther T. Brock, Esq.
Washington, DC 20555 Shaines & McEcchern 05 Maplewood Avenue Atomic Safety and Licensing P.O. Dox 360 Board Panel (1)*
Portsrouth, NH 03801 U.S. Nuclear Regulatory Comission Charles P. Grahan, Esq.
McKay,!!urphy & Grahar Decketing and Service Section*
100 Main Street Office of the Secretary Aresbury, MA 01913 U.S. 'Nelear Regulatory Corr:ission Washington, DC N555 Sandra Gavutis, Chairran Board of Selectnen Peter J. Matthews,rfayer RF0 #1, Box 1154 City Hall Kensington. NH 030?7 Newburyport, MN 09150 Willien S. Lord Ashod N. Amirian, Esu.
l Board 'f Selectnen Tcwn Counsel for Merrinec Tour Pr.ll - Friend Street 376 Mein Street Aresbury, MA 01913 Faverhill, MA 08130 Sheldon J. Wolfe, Esq.
Adrinistrative Judge 1110 Einbledon Drive McLean, VA P2101
- i Mrs. Anr.e E. Goodear, Chairman Michael Santosuosso, Chairman Board of Selectmen Poard of Selectmen 13-151
- ewnarket Road South Hampton, NH 03827 Durhan, NH 03824 Hon. Gorden J. Humphrey United States Senato 531 Hert Senate Office Building i'
Washington, DC 20510
.c 4r4'1R Stephen /A. B6rgquist Uf Counsel for NRC Staff 4
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