ML20198D219

Duke Energy Corp Response to New Info Submitted by Chattooga River Watershed Coalition in Support of Processed Contentions.* Petitioner Submittal of New Info Should Be Stricken for Procedural Reasons.With Certificate of Svc

ML20198D219
Person / Time
Site:	Oconee
Issue date:	12/21/1998
From:	Repka D DUKE POWER CO., WINSTON & STRAWN
To:	Atomic Safety and Licensing Board Panel
References
CON-#498-19836 LR, NUDOCS 9812230037
Download: ML20198D219 (11)

Text

-. . . . . . - . . - . - - . - _ . - - - - .

~  ;

00CKETED l USHRC December 21,1998 98 DEC 22 P3 :31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OWM;-

c l BEFORE THE ATOMIC SAFETY AND LICENSINO BOA l

In the Matter of )

! )

' Duke Energy Corporation ) Docket Nos. 50-269/270/287 LR

)

(Oconee Nuclear Station, )

Units 1,2, and 3) )

DUKE ENERGY CORPORATION'S RESPONSE TO l "NEW INFORMATION" SUBMITTED BY CHATTOOGA RIVER  !

WATERSHED COALITION IN SUPPORT OF PROPOSED CONTENTIONS l L INTRODUCTION l l-i On November 16, 1998, Duke Energy _ Corporation (" Duke") responded to the October 30,1998 "First Supplemental Filing" submitted by the Petitioners in this proceeding. Duke i

opposed admission of all four contentions proposed by the Petitioners in that document. Then, by i

L - a filing dated December 9,1998, but actually received by Duke on December 10,1998, the Petitioners offered what they assert to be "new information" to support the proposed contentions. l l

l On December 14,1998, the Licensing Board allowed Duke the oppoqunity to respond to this )

1 1

I unauthorized filing. Duke herein responds and demonstrates that this "new information" does not 1

support admission of the proposed contentions. Petitioners have still failed to provide any basis, I l documentary or otherwise, to support any contention that the Oconee application is incomplete, or  ;

that the programs, processes, and conclusions described therein do not meet the appliceble license renewal requirements.

I 9812230037 981221 PDR ADCCK 05000269 0 PM i

II. DISCUSSION A. The "New Information" Should be Rejected at the Threshold First, the December 10,1998 supplemental filing by the Petitioners, in offering additional bases for the contentions, was not authorized by the Licensing Board. On November 19, 1998, the Licensing Board requested certain information from the NRC Staff regarding the agency's rulemaking on transportation of high-level radioactive waste ("HLW") in the vicinity of the HLW repository. Both Duke and the Petitioners were invited to respond to the Staff's information by December 9,1998. Pursuant to the terms of that Order, Duke responded on December 9,1998. The Petitioners' filing, though dated December 9,1998, was actually untimely in that it was not received until December 10. In addition, the Petitioners' response far exceeds the Licensing Board's invitation to comment en the NRC Staff's information on the HLW transportation rulemaking,l' by j providing an additional discussion on "New Information For the ASLB to Consider With the Petitioners' First Supplemental Filing." This unsolicited discussion constitutes a filing without leave l l

to file. The Petitioners have ignored rules of procedure designed to ensure a fair, efficient, and focused proceeding. For this reason alone. the "new information" portion of Petitioners' filing should be stricken.F l

Second, to the extent the Petitiones proffer "new information" that bears on specific matters not previously raised in their proposed contentions, then the "new information" is really a l'

Duke does not here respond to the portion of Petitioners' filing regarding the HLW transportation rulemaking. Duke's position is clear in its filing of December 9,1998.

Petitioners' attempt to devalue or illegitimatize the NRC's generic approach to address a generic issue is unsupported and contrary to substantial administrative precedent.

F All participants in formal NRC proceedings -- whether lawyers or not -- are bound to follow the NRC's Rules of Practice. S.cs, s.&, Houston Lightine and Power Co. (Allens Creek Nuclear Generating Station), ALAB-609,12 NRC 172,173 at n.1 (1980).

-_ .~ _ _ _ _ _ _ . . _ _ _ _ _ . _ _ _ _ _ . _ _ _ . _ _ . . . . _ _ _ _ _ _ _ _ ._

new, late-filed contention.. Petitioners are obligated to affimiatively address the five factors for assessing the admissibility oflate-filed contentions in 10 C.F.R. Q 2.714(a)(1).- Consumers Power Ca (Midland Plant, Units 1 and 2), LBP-82-63,16 NRC 571,578 (1982), citmg Duke Power Co.

L (Perkins Nuclear Station, Units 1,2, and 3), ALAB-615,12 NRC 350,352 (1980). Petitioners have

- not done so, and the new matters should be rejected.

1 For example, in the "new information" Pe:itioners specifically reference ten NRC l Staff" Requests for Additional Infonnation"("RAls") on the Oconee license renewal application.

l l Of these, only three RAls (3.4.5-2(b),3.4.5-4, and 3.4.5-5) relate to the specific topical reports referenced in the Petitioners' original bases for the proposed contentions? Two more RAls (4.3.9-2 1

and G-2) relate to the timing of certain inspections, an issue vaguely referred to in the basis for

)

proposed Contention 2, though the reference there was in a different context. To the extent l Petitioners seek to raise specific technical issues on matters raised in the other RAIs referenced in L

L the "new information," they have failed to propose new contentions and failed to meet 10 C.F.R. Q

- 2,714(a)(1).

Finally, even if the Licensing Board restricts its view of the "new information," so i

L . that it is treated as no more than proffered support for the earlier proposed contentions, the "new I

information" should still be rejected. Petitioners' filing does not really offer "new information" at ll all. Their pn.josed contentions were directed toward the " completeness" of the application and of L .7 w' the description of" aging managen .mt programs." The Petitioners' "First Supplemental Filing" clearly anticipated RAIs. It even included a printout listing correspondence between Duke and the i

1 NRC Staff on RAls. Petitioners now are merely referencing details from specific RAIs recently p F These three RAIs all relate to topical report BAW 2251, which addresses the management L of aging effects for reactor vessels. This topical report is currently undergoing NRC Staff r

review, as discussed in Duke's initial response to proposed Contention 1 (at pp.10-12).

l.

._. _~ _ _ _ _ _ _ ._ _ _ _ ___ _ _ _ - . _ _._

i l' l issued. Petitioners are simply citing to the NRC Staff review process that is working exactly as was l

l expected. The existence of RAls is not "new" or unanticipated information and should be

disregarded by the Licensing Board on this basis alone.

l l

l B. The "New Information" Does Not Sunnort Admission of the Proposed Contentions As Duke discussed in its November 16, 1998 Response to Petitioners' "First

Supplemental Filing," Petitioners' proposed Contentions 1 and 2 challenge the completeness of the Oconee license renewal application, most particularly in the area of" aging management programs."F i

As discussed below, the RAls now referenced by the Petitioners do not demenstrate the

" incompleteness" of the application. Nor do they support a proposed contention that the application fails to adequately address " aging management programs."F

l. Proposed Contention 1: Completeness ofthe Application Proposed Contention 1 alleges that the Oconee renewal application is incomplete.

As originally proposed, this contention was premised upon 1) pending NRC Staff review of certain generic topical repets and 2) NRC Staff RAls, both " filed and forthcoming," related to Duke's application. The allegedly "new information" does not alter this theory. The Petitioners' argument in the latest filing is premised only on NRC Staff RAls and does not identify any failure to meet the requirements of 10 C.F.R. { 54.21. As was the case before, the Petitioners inherently presume that F

Petitioners' proposed Contention 3 is a vague challenge to the environmental report for similar reasons. Petitioners' latest filing is ostensibly offered to support this contenCon as well. The purported link to proposed Contention 3 is never explained, is not apparent to Duke, and is not further addressed here. Petitioners' proposed Contention 4 relates to storage l and disposal of high level radioactive waste and spent nuclear fuel. This proposed l contention is not at all implicated by the Petitioners' latest filing.

i

F To the extent Petitioners are alleging that the RAIs demonstrate that the application fails to provide information or " safety evaluations" on issues other than aging management programs, Petitioners are offering a new late-filed contention which should be rejected for the reasons discussed above.

l l

?

the existence of an RAI means that the application is " incomplete." This is, quite simply, wrong.

As discussed in Duke's November 16,1998 response (at p. 9), the NRC Staff has already accepted Duke's application as " sufficient," and this sufficiency review is not the focus of the present hearing opportunity. Moreover, Petitioners are merely continuing their attempt to piggyback the NRC Staff's review of the license renewal application. As also discussed in Duke's l

l earlier response (at p.12), RAIs certainly do not mean that the license application must be rejected l l

as " incomplete" as the Petitioners propose. Sgg Curators of the University of Missouri. CLI-95-8, I 41 NRC 386,395 (1995);1em aba Baltimore Gas and Electric Co. (Calvert Cliffs Nuclear Power Plant, Units I and 2), LBP-98-26,48 NRC , slip op, at 17-18 (October 16,1998). An RAIis routine and is no mere than a question from the NRC Staff. It does not mean an application is incomplete, because no application could possibly anticipate every question the NRC Staff might i

l have (particularly in the relatively new arena oflicense renewal).

The situation here precisely parallels that addressed by the Commission in Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3,37 1

NRC 135,146 (1993). Incorporating by reference Staff questions to the licensee / applicant is <

l insufficient to support admissibility of a contention. Sg2 ahn Louisiana Eneruv Services. L.P.

1

{

(Claibome Enrichment Center), LBP-91-41,-34 NRC 332,346 and 357-58 (1991) (contentions / bases merely referencing Staff questions rejected by the licensing board). If every RAI could spawn a contention, the Staff's review would be precisely what is at issue in this case, the litigation scope l

L would far exceed the original contention, and the hearing would be effectively unbounded. Such w - --_ _,

l a result would clearly be inconsistent with the Commission's expectations.F For this reason, and the reasons discussed in Duke's original response, the proposed contention must be rejected.

2. Pronosed Contention 2: Agine Manaeement Programs Proposed Contention 2, as originally articulated, alleges that the Oconee application does not meet " aging management and other safety related requirements." It was specifically directed to Duke's treatment in the renewal application of two generic topical reports on aging effects and aging management programs. As explained in Duke's response (at pp.15-17), the basis statement offered at the time by the Petitioners reflected only their misunderstanding of the application, of how the topical reports were being utilized, and how Duke addressed Renewal Applicant Action Items in the application. In the latest filing, Petitioners would link several specific RAIs to this contention. However, this does nothing to remedy the defects in the propored contention and basis. Petitioners still have neither articulated nor supported any specific, genuine issue independent of the StaffRAIs.

Even with the "new information,"it remains unclear what the Petitioners are arguing in this proposed contention. There are two possible readings. First, Petitioners could be arguing that the application is incomplete with respect to aging management programs (and that the RAIs further demonstrate this " incompleteness"). Second, they could be arguing that the aging management prcgrams described by Duke are in some way inadequate (and that the RAIs support this notion).

Given this ambiguity, and because the burden is on the Petitioners to articulate the issue, the F

The Commission has made clear that the focus of this proceeding, as in any NRC proceeding, "is on whether the application satisfies NRC regulatory rec,uirements, rather than the adequacy of the NRC Staff performance /' 54 Fed. Reg. 33168,33170-71 (1989) (NRC Supplementary Information accompanying 1989 amendments to 10 C.F.R. 2.714).

l .

contention must be rejected. And, even overlooking this defect, either reading of the proposed contention must be rejected as inadmissible for lack of sufficient basis.

l Based on the original submittal, the first reading would seem the most probable. This i

proposed contention has always appeared to be a variation on the " completeness" argument of l 1

proposed Contention 1. As such, the proposed contention remains inadmissible. The "new information"- Staff RAIs -- does not make the applicatica " incomplete," and the contention must

. be rejected, for all the reasons already discussed under proposed Contention 1.

The second reading is equally problematic. If the Petitioners are now alleging that aging management programs are inadequate, or in some way technically deficient, then they are proposing a new contention and have failed to follow appropriate procedures to support such a contention, as discussed above. Furthermore, a recitation of RAIs alone does not support a contention that Duke's approach to " aging management"is technically inadequate. As noted earlier, 1

an RAI does not mean that there is a technical problem with the applicant's approach to an issue.

A need for clarification or additional information is common in a technical review r.nd, in itself, is not indicative of a deficiency. For this reason, licensing boards and the Commission have previously rejected contentions Msed only on RAls. Rancho Seco, CLI-93-3,37 NRC at 146; Claibome Enrichment Center, LBP-91-41,34 NRC at 346 and 357-58.

As discussed in Duke's November 16,1998 response (at pp. 9-10), the Commission's Rules of Practice mandate that proposed contentions focus on the application -- which in this case has been available for independent review for five months. The purpose of a contention is to identify for all parties and the Licensing Board the issues that a petitioner proposes for litigation. A I

contention should focus and narrow the issues, based upon a petitioners ' own view of the technical issues, not create infinite possibilities for discovery and litigation based on questions that have been 7

4 or will be raised in past and future NRC Staff RAls. The Commission's expectation is that the technical issues should be articulated, and that the proponent of the issue provide its own independent basis for the issue. Sss, gg, Lone Island Lightine Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75,16 NRC 986,993 (1992) (rejecting a broad assertion that an emergency plan is inadequate, without specifying in some way a portion of the plan that is inadequate); Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-16,31 NRC 509,515, 521 at n.12 (1990) (rejecting a proposed contention alleging omissions and errors in the applicant's documents and analyses, but lacking any independent bases concerning the importance of the alleged omissions). Petitioners in proposed Contention 2 have failed in both regards. In asserting only that several RAIs demonstrate the inadequacy of the application, they have failed to define a precise technical issue. And, because Petitioners offer no support other than an RAI -- no independent basis for a technical dispute regarding the adequacy of the Oconee aging management 1

programs (such as a third-party document or an expert opinion) -- they have failed to meet the Commission's threshold for admission of a contention.

Petitioners are in no sense being denied an opportunity for " meaningful review" of the license renewal application. All aspects of the application and the review process are open to 1

the public and accessible for comment and litigation in this proceeding. It is incumbent upon the )

1 Petitioners to state an issue of their own and to provide an evidentiary basis (iA, a proffer of technical information) demonstrating a flaw in an approach articulated in the application. Reference to an RAI does not and cannot satisfy these requirements. Accordingly, notwithstanding u.e "new information" now offered Petitioners have still failed to provide a basis sufficient to meet 10 C.F.R. Q 2.714(b)(2).

I l

l i

111. CONCLUSION '

For the procedural reasons discussed above, Petitioners' submittal of "new l

information" should be stricken. In the attemative, if the Licensing Board should decide to consider the "new information," it should conclude that the information does not support admission of any

. of Petitioners' proposed contentions.

Respectfully submitted, l

l ts\Lo David A.Repka \ ^

WINSTON & STRAWN 1400 L Street, NW Washington, D.C. 20005-3502 202/371-5726 or 202/371-5724 l l

Paul R. Newton Lisa F. Vaughn DUKE ENERGY CORPORATION 422 South Church Street P.O. Box 1244 Charlotte, North Carolina 28202 ATTORNEYhFOR Dated at Washington, D.C.

. This 21st day of December,1998 j i

00CKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION

% DEC 22 P3 31 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 014 '

Rt4.

ADy D at_

In the Matter of )

)

DUKE ENERGY CORPORATION )

) Docket Nos. 50-269/270/287-LR (Oconee Nuclear Station, )

Units 1,2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " DUKE ENERGY CORPORATION'S RESPONSE TO "NEW INFORMATION" SUBMITTED BY CHATTOOGA RIVER WATERSHED COALITION IN SUPPORT OF PROPOSED CONTENTIONS"in the above captioned proceeding have been served upon the following by electronic mail or facsimile as noted, with conforming copies and additional service deposited in United States Mail, first class, this 21st day of December 1998.

Office of Commission Appellate Chief Administrative Judge Adjudication B. Paul Cotter, Jr., Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel One White Flint North U.S. Nuclear Regulatory Commission 11555 Rockville Pike Two White Flint North,3rd Floor Rockville, MD 20852-2738 11545 Rockville Pike Rockville, MD 20852-2738 (E-mail copy to bpcl@nrc. gov)

Administrative Judge Administrative Judge Richard F. Cole Peter S. Lam Atomic Safety and Licensing Board Panel Atomic Safety and Licensing . Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Two White Flint North,3rd Floor Two White Flint North,3rd Floor 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 (E mail copy to rfcl@nre. gov) (E-mail copy to psl@nrc. gov)

. - .- -_ . .- .- - . - . _ - - . . .. . - _ = . - . - - . . ~ .

1 Marian L. Zobler Norman " Buzz" Williams

! Robert M. Weisman 190 Mountain Cove Rd.

Office of the General Counsel Mountain Rest, SC 29664 U.S. Nuclear Regulatory Commission One White Flint North William " Butch" Clay l 11555 Rockville Pike P.O. Box 53 i Rockville, MD ?.0852-2738 Long Creek, SC 29658 l (E-mail copies to oconee@nrc.cov l

W.S. Lesan Chattooga River Watershed Coalition P.O. Box 66 P. O. Box 2006 i Long Creek, SC 29658 Clayton, GA 30525 (facsimile copy to (706)782-6098; e-mail l copy to enve@ acme-brain.com)

Adjudicatory File Office of the Secretary l Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North l Two White Flint North 11555 Rockville Pike i

11545 Rockville Pike Rockville, MD 20852-2738 l

Rockville, MD 20852-2738 Attn: Rulemakings and Adjudications I (original & 2 copies) l (E-mail copy to hearingdocket@nrc.nov) l l

i l

U%

~l Y .

David A.Repka Winston & Strawn Counsel for Duke Energy Corporation l

l 4

. - _ ,: , r . - ,p. --+ ,,