ML20154S587

Applicant Response to Motion to Admit Exercise Contention Or,In Alternative,To Reopen Record.* Intervenors 880916 Motion Should Be Denied.Affidavits of Ja Macdonald,Gj Kline & Gf Sesser Encl

ML20154S587
Person / Time
Site:	Seabrook
Issue date:	09/28/1988
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
Shared Package
ML20154S590	List: ML20154S587 ML20154S651 ML20154S667 ML20154S673
References
CON-#488-7195 OL-1, NUDOCS 8810050104
Download: ML20154S587 (15)

Text

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CCCKCTCO September 28, bk8 UNITED STATES OF AMERICA '68 CCT -3 P3 :03 before the ,. r -

NUCLEAR REGULATORY COMMISSION

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In the Matter of )

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PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, gt 31 ) 50-444-OL-1

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

) Issues)

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APPLICANTS' RESPONSE TO MOTION TO ADMIT EXERCISE CONTENTION OR, IN THE ALTERNATIVE, TO REOPEN THE RECORD STATEMENT OF THE CASE Under date of September 16, 1988, the Attorney General of The Commonwealth of Massachusetts, New England Coalition on Nuclear Pollution, Seacoast Anti-Pollution League, and the Town of Hampton, New Hampshire (hereinafter referred to collectively as the Intervenors) filed with this Board a document entitled Motion to Admit Exercise Contention or, in the Alternative. to Pecoen s the Record (the Mr, tion). The thrust of the Motion is to inject into the proceeding a new contention which would permit the litigation of certain alleged deficiencies in the Seabrook Station onsite emergency plan.

8810050104 080920 PDR ADOCK 05000443 C PDR 90 b

l The gravamen of the Motion is an inspection report issued by the Staff on July 6, 19881 and served by mail upon all parties to the Egabrook proceeding on July 7, 1988.2 In that report, the Staff reported its observations of a graded exercise held on June 28, 1988. As is customary in such  ;

reports, the Sthff, in a discussion of "Exercise Observations,"3 listed "strengths" and "weaknesses."

Included in the discussion of "weaknesses" was the following item "1. The Technical Support Center (TSC) and Emergency Operations Facility (EOF) staff displayed questionable engineering judgment and/or did not address technical concerns (50-443/88-08-01). For examplet

. Neither the EOF or TSC staff questioned a release of greater than 7000 curies per second with only clad damage and no core uncovery;

. Efforts continued to restore the Emergency Teedwater Pump after a large break LOCA

. A questionable fix for the Containment Building spray system 1The report is reproduced as Exhibit A to the Motion and will be hereinafter cited as "Exh A."

2 Le t t e r , Bellamy to Harrison Ret Inspection No. 50-443/88-A2 (July 7, 1988) (hereinafter referred to and cited as "Letter"). The Intervenors did not include the covering letter as part of Exhibit A to the Motion. ,

3 Exh. A at 4-5.

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. A lack of effort to locate and isolate the release path; and

. No effort was noted to blowdown Steam Generators to lessen the heat load in containment."4 This "weakness" (as well as others upon which the Intervenors apparently do not base the Motion) was set out in the context of a report which also recited as the "Raa.ulla":

"No violations were identified.

Emergency response actions were adequate to provide protective measures for the health and safety of the public."3 This conclusion was also expressed essentially verbatim in the Letter.6 Nevertheless, focussing upon the above-quoted 4

EXh. A at 5.

5Exb. A at 1. In addition, the following appeared in Section 6 (Exit Meetina and NRC Critiaua) of the Report "The licensee was informed that previously identified items were adequately addressed and no violations were observed. Although there were areas identified for corrective action, the NRC determined that within the scope and limitations of the scenario, the licensee *s performance demonstrated that they could implement their Energency Plan and Energency Plan Implementing Procedures in a nanner which would adeguately provide protective seasures for tho health and safety of the public."

(Emphases supplied).

6"Within the scope of this inspection, no viointions were observed. It was determined that your emergency response actions were adequate to provide protective measures for the health and safety of the public." Letter at 1.

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1 "weakness," and supported by an affidavit which purports to demonstrate that the "weakness" is more significant than the Staff believed,7 the Intervonors now claim to have just i learned of a significant safety issue which must be  !

litigated. For the reasons set forth below, Intervenors i efforts should be found wanting.

i l ARGUNENT

! I. THIS BOARD IS WITHOUT JURISDICTION [

TO GRANT THE RELIEP REQUESTED l

Thim Board, at this juncture, is a board of severely limited jurisdiction. The matters remaining before it, j i

! remain as the result of a remand of an initial decision l 0 i 1

issued some time ago. It is fundamental that when a

Licensing Board receives a proceeding back on remand from the t i j Appeal Board, its jurisdiction is limited to those issues remanded to its other issues which might have been, or, in i

q fact, were, raised before it may, thereafter, be raised only I '

i through the vehicle of a petition to the Director of Nuclear i

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l 7The affidavit attempts to shrug off the overall J conclusion of the report by making certain assumptions as to j what must have been going through the Staff's collective mind [

} in reaching the conclusions it did. Pollard AII 1 at pp. 8-l

9. Whatever qualifications the affiant may have to address i the technical matters he purports to address, psychology and  ;

! mindreading are not listed among them. [

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Reactor Regulation under 10 CFR 52.206.8 No issue of the i i

i nature here sought to be raised was remanded to this f Licensing Board. Indeed as the Intervenors concede, the j issue was never raised before this Board when it was I

exercising plenary jurisdiction over the proceeding.9 l

{ Therefore, there is no jurisdiction in this Board to [

1 t 1 entertain it now.

I l l II. THE INTERVENORS HAVE FAILED TO I i

SATISFY THE CRITERIA FOR ADMISSION l l OF A LATE-FILED CONTENTION.

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l A. Introduction. [

1 l i Admission of late-filed contentions in NRC licens3rq  ;

proceedings is governed by 10 CFR 52.714 (a) which requirt.a a [

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s balancing of five factors, each of which is discussed below.

The burden is upon the party proffering the late-filed  !

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8 carolina Power & Licht co s (Shearon Harris Nuclear Power Plant, Units 1-4), A LAB-52 6, 9 NRC 122, 124 (1979); j

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Portland General Electric Co. (Trojan Nuclear Plant), ALAB- i l

a 534, 9 NRC 287, 289-90 n.6 (1979). l l

] 9 Motion at 7 n.5. The Intervenors apparently believe [

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this state of affairs assists their cause. However, since

this Board would have had jurisdiction to entertain the issue i in the past, and since it was not raised, the Director of Nuclear Reactor Regulation's findings as to all issues not l l raised before the Licensing Board encompansed in the i

outstanding operating license constitutes the finding upon ,

this issue by the Commission. 10 CFR 52.760al 10 CFR 550.57. t

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l contention to satisfy the balancing test set forth in the f rule.10 i

B. Analysis of the "Five  !

Factors."

i. Good cause, it any, for Failure to File on time ,

f The "Good cause" factor "is a crucial element in the  !

r analysis of whether a late-flied contention should be [

l admitted. If the proponent of a contention fails to satisfy }

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this element of the test, it must make a ' compelling' showing j with respect to the other four factors."11 f With respect the matter at bar, the Intervenors knew or f

should have known of the existence of the issue they seek to [

raise upon receipt by them of the Letter which was sent on July 7, 1988. Accepting the Intervenors' representaticn that I the letter was not received by them until "on or about i

July 15, 1988,n12 this still means that they waited two full months, or until the eve of possible resolution of the remaining issue blocking low-power licensure, before flaing 10D uke Power es. (Perkins Nuclear Station, Units 1, 2 and 3) , AIAB-615, 12 NRC 350, 352 (1980).

11 commonwealth Edison connany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 244 (1986),

citing, cincinnati Gas and Electric co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 663 (1983); Mississipoi Power and__Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), AIAB-704, 16 NRC 1725 (1982).

12 Notion at 9.

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the Motion. They argue that the trigger date should be extended to the week of August 15, 1988 on the theory that it was not until their receipt of the "exercise scenario documentation" that they could have "a proper technical understanding" of the significance of the report. This argument rings hollow from a group that has been able to discern contentions by the dozen from webs of gossamer in the past. More importantly we are unadvised as to how the existence of the possible contention had to await the later information when the very basis of the contention was listed under a heading in a Staff document of "weaknesses." No good cause for the delay has been shown. The first factor should weigh against admission.

ii. Availability of other Neans to Protect Petitioners

• Interest.

The Applicants would concede that this (and the fourth factor) favor the Mass AG, as is usually the case. However,

"[t]his factor, like the closely related fourth factor (the extent to which other parties will represent petitioners' interest) is accorded less weight, under established commission precedent, than factors one, three, and five."13 13Commonwealth Edison company (Braidwood Nuclear power Station, Units 1 and 2), C LI - 8 6- 8 , 23 NRC 241, 245 (1986),

citina with approval, South Carolina Electric and Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).

iii. The Extent to Which the Petitioner's Participation May Reasonably Be Expected to Assist in Developing a sound Recor?.

Commission "case law establishes both the importance of this third factor in the evaluation of late-filed contentions and the necessity of the moving party to demonstrate that it has special expertise on the subjects which it seeks to raise. (citation) The Appeal Board has said: 'When a petitioner addresses this criterion it should set out with as l

auch particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony'."14 The Intervanors have merely alleged that they will "(provide) an expert witness" and generally identified the subject matter of che testimony the unnamed witness will give. This hardly meets the standard set forth above, i

l 14corronwealth Edison company (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 246 (1986),

citina with aoproval, Mississiepi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 HRC 1725, 1730 (1982).

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iv. The Extent to Which the Petitioner's Interest Will Be Represented by Existing Parties.

As indicated above in 55,, this factor always favors the petitioner and is entitled to less weight than numbers 1, 3, and 5.

v. The Extent to Which the Petitioner's Participation Will Broaden the Issues or Delay the Proceeding.

The injection of a new issue will obviously delay any proceeding. In this case, it has a possibility of delaying the issuance of low power testing authority, and its timing is susceptible of a cynical reading that its filing was solely for that purpose. Obviously it will also broaden the proceeding, as the Intervenors, themselves, concede.15 C. The Balance of the Factors The weightier factors, numbers 1, 3, and 5, all weigh against the Intervenors. Only the two factors which are given less weight, weigh, as they usually do, in their favor.

The balance favors denial of the motion.

15M otion at 11.

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III. THE MOTION FAIIA TO SATISFY THE CRITERIA FOR REOPENING THE RECORD.

A. The Applicable Regulation.

The Intervenors must satisfy the requirements of the regulation governing reopening of the record in order to succeed herein. This is so because the Commission has ruled that the record in this docket is closed for consideration of new issues.16 Motions to reopen the record are governed by 10 CFR 52.734. That regulation states, in material part:

"(a) A motion to reopen a closed record to consider additional evidence wiki not be granted unless the following criteria are satisfied:

"(1) The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.

"(2) The motion must address a significant safety or environmental issue.

16Public Service Connany of New Hampshire (Seabrook Station, Units 1 and 2), CLI-88-07 __ NRC , Slip Op. at 3 (Sept. 22, 1988).

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"(3) The motior must demonstrate that a materially different result would be or '

would have been likely had the newly l proffered evidence been considered i initially."

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"(d) A motion to reopen which relates to a contention not previously in i controversy among the parties must also satisfy the requirements for nontimely  ;

I contentions in 5 2.714 (a) (1) (1) through I (v)."

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, The movant is required to meet each and every one of the  !

) I j criteria set forth above, and "[t]he burden v; satisfying all  ;

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l these requirements is heavy indeed."17 l i  !

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i B. Analysis of the Factors I i

1. Timeliness j

. As already set forth in III.B.i. above, the motion is  !

I not timely in the circumstances of this case. [

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) 11. Significance of the Issue.

j To begin with it is noteworthy that the Staff did not l feel that the "weakness" upon which this whole motion is [

based had raised any concern which pravented the Staff from 17 Louisiana Power & Light Co. (Waterford Steam Electric  ;

Station, Unit 3), A LA B- 812 , 22 NRC 5, 14 (1985). Accord, r Louisiana _ Power & Licht Co. (Waterford Steam Electric F

Station, Unit 3), A LA B-7 8 6, 20 NRC 1087, 1090 (1984) Pacific 4 gas and Electric Co. (Diablo Canyon Nuclear power plant, j Units 1 and 2), ALAB-756, 18 NRC 1340, 1344 (1983); Kansas s Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1) , ALAB-4 62, 7 NRC 320, 328 (1978).

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finding that the response measures taken were adequate to protect the publiv. This alone makes clear that the issue being raised is not a significant safety issue.

In addition, there are filed herewith the affidavits of James A. MacDonald, Gary J. Kline, and Gregg F. Sessler.

These affidavits address each of the "examples" of situations where the TSC or EOF staffs supposedly "displayed questionable engineering judgement and/or did not address technical concerns." With respect to the release of greater than 7000 curies per second, it appears that (a) the release l

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figure was supplied by the controllers and, therefore, was j not to be questioned under the rules, (b) a review of exercise events reveals thet, in fact, the lack of l

correlation between the release condition and core cooling indications was recognised and discussed by TSC personnel, and (c) the lack of correlation in no way hindered the  ;

response and implementation of emergency procedures.18 The continued efforts to restore the Emergency Feedwater (EFW) pump (a) did not hinder nor would it have effected the response of the TSC to higher priority activities, (b) was j recognised as an effort which may not be needed to mitigate a large break LOCA, and (c) was continued for good and sufficient reason anyway An light of the fact that no higher 18MacDonald Aff. 15 4-6.

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j priority item was being interfered with.19 The "questionable fix for the Containment Building spray system" was (a) in i fact a contingency plan developed in case the normal flow f a 5th of the system could not be reestablished (the i

. controllers interceded and declared efforts to reestablish }

the flow to be ineffectual on four occasions), (b) was  !

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technically sound, and (c) if needed, the fix would have been  !

j reviewed by NRC before implementation, a review not carried l l

I iut because the normal flow path was reestablished.20 In fact, a concerted effort was made to locate and isolate the containment bypass leakage but was curtailed because of the i

fact that entry into the areas necessary for ultimate isolation or repair had to be postponed due to high radiation  :

) I levels therein.21 As to the assertion that "(n)o offort was i noted to blowdown the Steam Generators to lessen the heat l l

load in the containment," it appears that (a) in fact such an

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effort was considered and temporarily postponed to assess its t

l possible radiological consequences, (b) prior to completion i l

of the assessment necessary to determine whether such an ,

i action would lead to introduction of accident levels of l

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i j radioactivity to areas of the p) ant as yet unaffected, Day #1 19Kline Aff. 11 4-10. [

20S essler Aff. 11 1-11 21K11ne Aff. 11 11-14.

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r-O of the exercise ended, and (c) subsequent analysis has shown that such action would have had no practical effect in reducing the temperature and pressure of interest.22 From all of the foregoing it is clear that the issue which Intervenors seek to raise is not a signif.4 cant safety issue.

iii. Difference in Result All of the matters upon which the Intervenors base their Motion have been shown by the affidavits filed herewith to, ,

in fact, be matters which were proper 3y addressed during the exercise and not to have any safety significance. Thus, there is little doubt that the result of the heretofore completed litigation would not change.

iv. Compliance with 10 CFR

%2. 714 (n) (1) (1) -(v) .

As set forth in SII.C. above, the Intervenors have not made the necessary showing under 10 CFR 52.714 (a) (1) (1)-(v) .

22Sessler_611 15 17-21.

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CONCLUSION The Motion should be denied.

Respectfully submitted, Thoinas U.' DIgnan, Jr.

George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 counsel for Applicants P

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