ML20198E379
| ML20198E379 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/19/1986 |
| From: | Paris O, Shon F, Wolfe S Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#286-263 LBP-86-14, OLA-OLA-2, NUDOCS 8605270361 | |
| Download: ML20198E379 (18) | |
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, e LBP-86-14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h
ATOMIC SAFETY AND LICENSING BOARD S
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O An4 Sheldon J. Wolfe, Chairman g8 Before Administrative Judges:
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Frederick J. Shon k@
Dr. Oscar H. Paris S
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Docket No. 50-289-0LA-1 In the Matter of
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50-289-0LA-2
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GPU NUCLEAR CORPORATION, et al.
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(Steam Generator Plugging
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(Three Mile Island Nuclear Station,
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Unit No. 1)
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May 19, 1986
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SERVED MAY20 W MEMORANDUM AND ORDER (Memorializing Prehearing Conference, And Rulings On TMIA's Time Extension And On Scheduling Matters)
MEMORANDUM I.
Background of Events Leading to Conference of May 7,1986 These two cases have been consolidated at least through the discovery period.1 Further, the Board had directed that discovery would I
In case OLA-1, at issue is the Licensee's application to amend the amendment, Technical Specification Change Request (TSCR) posed steam generator tube technical specifications. This pro 148, would l
l maintain the 40% throughwall limit on the secondary side of tubes but would replace 'the 40% limit on the primary side of tubes with' a i
i sliding scale which goes from 40% to 70% throughwall depending upon l
(Footnote Continued) 8605270361 860519
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! begin on March 28 and should be completed by May 12, 1986, and that, if no party advised by May 19 that a motion for summary disposition was to be filed, the Board would proceed to set the date, time and place for the hearing. Order of April 2,1986, memorializing the March 27, 1986 special prehearing'c^onference (unpublished).
On April 11, 1986, the Intervenor, Three Mile Island Alert (TMIA),
filed a motion requesting a six month extension of time from May 12 to November 12, 1986 within which to complete. discovery. TMIA stated therein, in the alternative, that it withdraws as an intervening party if its Motion were to be denied. TMIA's then representative, Ms. Doroshow, advised that she could no longer represent TMIA in light of new employment, that the Intervenor lacked resources to employ a new representative, and that the volunteer representative available, a Ms. Louise Bradford, could not participate in this case for at least six months because of her participation in another NRC hearing. TMIA argued that the Licensee would not be prejudiced by the extension of time to November 12 for the completion of discovery because, in case OLA-1, the proposed plugging criteria will not take effect until after the (Footnote Continued) the size of the defect.
In case OLA-2, at issue is Licensee's application to amend the steam generator tube specifications. That proposed amendment, TSCR 153, would in substance change the repair criteria to allow the Licensee not to repair tubes, under certain circumstances, if a tube has a defect up to 50% throughwall penetration.
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1 i-i Licensee's planned refueling outage,2 and because, in case OLA-2, the NRC Staff had proposed a "no significant hazards consideration", which if finally determined by the Commission, would be immediately effective until' the refueling outage.3 In its Response of April 17, 1986, the Licensee opposed TMIA's Motion. The Staff's Response of April 30 opposed a six month extension of time in case OLA-1. However, the Staff noted that its Safety Evaluation Report (SER) would not be issued until July 31, 1986. Since the SER would contain certain assumptions as to what the Licensee's test results would show during the November refueling outage, the Staff suggested that the Board grant a three month extension of time to August 12 within which to complete discovery.
In case OLA-2, the Staff did not oppose the requested six month extension because, as of April 18, 1986, the amendment became effective until the refueling outage in November 1986, and thus the extension would not delay the effectiveness of the change The Commonwealth of Pennsylvania's Response of May 6 supported TMIA's Motion.
2 Originally the time for the refueling outage had been scheduled for December but Licensee advises that the schedule has been set forward to November 1986.
3 On April 18, 1986, the Commission made.a final determination that TSCR 153 involved no significant hazards consideration, arid, prior to the hearing, made the amendment immediately effective. 51 Fed.
Reg. 16411
a e Upon receipt of the Staff's Response of April 30, the Board became very concerned because certain information therein had not been disclosed to it at any time prior to or during the March 27, 1986, special prehearing conference when the Board, without knowledge of and the benefit of that information, proceeded to set an expedited schedule for discovery and summary disposition procedures.
For the first time, as of April 30, 1986, we were informed (1) about the status of the SER
-- i.e., that it would be issued on July 31,1986,(2) that, by letter dated February 19, 1986, the Licensee had agreed to the Staff's request that, at the next refueling outage (then scheduled for December 1986),
the Licensee would remove and test a number of steam generator tubes to verify that the defect morphology related to corrosion was the same as that identified in tubes previously removed and that eddy current testing techniques were accurate, and (3) that the Staff's evaluation of this test data would not be available in a supplement to the SER (SSER) before the end of January 1987.
4 II. Discussion re: The Conference of May 7, 1986 The Board held a conference on May 7, 1986 in order to hear additional discussion which would enable it to rule upon TMIA's motion 4
Attendees were: Mary Wagner, Esq., counsel for the RRC Staff; Bruce Churchill, Esq., counsel for the Licensee; Thomas Au, Esq.,
counsel for the Comonwealth of Pennsylvania; and Ms. Louise Bradford, representative for TMIA.
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, for a time extension and, more particularly, to hear discussion upon the three matters set forth in the Staff's Response of April 30.
We first questioned Licensee's counsel as to why Licensee's letter of February 19, 1986 addressed to the Office of Nuclear Reactor Regulation had not b'een brought to the Board's attention prior to or during the March 27, 1986 special prehearing conference. Licensee's counsel stated that he may or may not have known about the letter, but did not recall. After the Board had been furnished with a copy of the letter by Staff's counsel at the May 7 conference, Licensee's counsel advised that he had seen the letter before but did not remember when he had seen it. He stated that for two reasons he had had no impression that this information was necessary for the granting of TSCR 148.
First he stated that it had always been Licensee's position that such testing would not be necessary because Licensee has already confirmed that corrosion has not reinitiated and that eddy current testing is accurate, and that supporting documentation had been submitted with its application to the NRC. Second, he stated he had been under no such impression in light of the fact that, on March 27, the Board had set a very expedited schedule which would have brought about a determination or at least a hearing months before the Licensee's schedule for pulling tubes. He advised that prior to and during the special prehearing conference, while he had been aware that a SER would be issued by the Staff, he had'not known the project'ed issuance date, that he had been unaware that the Staff would require the pulling (and testing) of the tubes as a prerequisite to the granting of the 70". throughwall
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. amendment, and that he had not known that the Staff would issue a supplement to the SER based upon an analysis of the pulled tubes (Tr.
145-52,179)
We then questioned Staff's counsel, who stated that, prior to the special prehearing conference, she had not seen Licensee's letter of February 19, but had been aware that the Staff had requested and the Licensee had agreed to pull and test three tubes and that the Staff's final position upon the issuance of the 70% throughwall amendment would have to await its confirmatory analysis of Licensee's test results, which would be set forth in the SSER. She also indicated that the Staff had believed that, after the issuance of the SER based upon certain assumptions in which Staff has a high level of confidence, the case could be heard and decided in advance of receiving Licensee's confirmatory test data, and thus that a significant amount of time would be saved.
She suggested that the Board's decision could be issued subject to the condition that the Staff's evaluation of the Licensee's test results would confirm the assumptions in the SER.
Staff's counsel added that the July 31 issuance date of the SER had been determined only at about the time the Staff's Response of April 30 was being prepared.
She further stated that, prior to and during the special prehearing conference, even though there was uncertainty as to when the SER might be issued and even though there was a possibility that it might not even be issued until January 1987, the Staff had thought it could prepare and submit testidiony in advance of the issuance of the SER. She opined that the February 19 letter and that information about the issuance of an
e 7-SSER did not meet the standards requiring a Board notification since they were not relevant and material to an issue in the case 5 (Tr.
152-66).
III. Discussion of TMIA's Motion For Time Extension We agree with the following legal principles presented in the Licensee's April 17 Response. It is a basic principle that "a person who invokes the right to participate in an NRC proceeding also voluntarily accepts the obligations attendant upon such participation." Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983). Moreover, "...the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations." Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981); Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 730 5
The Board noted that, with respect to TSCR 153, while it had received copies of the Commission's final determination of no significant hazards consideration as well as copies of the Staff's SER, it had not received copies of TMIA's comments of March 27, 1986 upon the Staff's proposed no significant hazards consideration. TMIA's comments were only summarized in the SER.
Staff's counsel advised that her understanding was that such original comments are not generally forwarded to Licensing Boards.
Further, Staff counsel handed to the Board copies of a letter dated May 2, 1986, wherein the NRR requested that the Licensee should include certain tests in its testing of the three pulled tubes.
Staff counsel advised that that letter would probably not have been furnished to the Board as a Board notification (Tr.166-67).
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- (1985); Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1261 n. 29 (1982).
Finally, "It is well-settled that a participant in an NRC proceeding should anticipate having to manipulate its resources, however limited, to meet its obligations".
Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 NRC 387, 394 (1983)).
However, we disagree with Licensee's argument that the Board should adhere to its original cut-off date of May 12 for discovery lest Licensee be " extremely prejudiced". We are not persuaded by this argument in light of Licensee's failure to notify the Board, prior to or during the March 27, 1986 special prehearing conference, that, as of February 19, the Licensee had agreed to remove and test certain steam generator tubes at the next refueling outage. Licensee's counsel should not have had the " impression" that this information was not necessary for the granting of TSCR 148 (Tr. 149). There can be no doubt that this confirmatory testing to be conducted as currently scheduled to begin in November 1986, which would be-long after the completion of discovery and of the hear'ing and sub' sequent to the issuance of an initial decision, was relevant and material to the very issues being controverted in this proceeding.
We accept Staff counsel's representati N that she had not seen the February 19 letter prior to the special prehearing conference and that it was not until on or about April 30 that the Staff determined that the SER would be issued on July 31.
However, since she had been aware that the Licensee had been requested and had agreed to perform confirmatory
5 testing, she should have notified the Board in a timely manner regardless of the fact that the Staff viewed the issuance of the SER as being the single most important event which has to take place before the hearing could begin.
Such timely notification was necessitated because Staff counsel conceded that (1) after the issuance of the SER but subject to the restrictions in the Rules of Practice, TMIA might be entitled to proceed with some discovery after seeing the assumptions in the SER for the first time on or about July 31,1986;(2) if meeting the standards for the late filing of cortentions, TMIA might be entitled to propose new contentions based upon that which is reflected in the SER; and (3) if the supplement to the SER to be issued in January 1987 varies from assumptions in the SER but nevertheless supports the 70%
throughwall amendment. TMIA would be entitled to discovery, subject to restrictions in the Rules of Practice, and would be entitled to propose additional contentions provided the criteria for late filing are met (Tr. 157-60). Moreover, the Staff should have timely informed the Board at least as to the general status of the SER and, more particularly, should have told us that the SER would reflect certain assumptions as to what Licensee's testing data would show during the refueling outage.
While the Staff had a "high level of confidence" in its assumptions which would be verified by the Licensee's tests conducted during the refueling outage and confirmed by the Staff's evaluation in late January 1987, it conceded that "anything is possible" and "it is conceivable
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- that our position might change if the results don't bear us out..." (Tr.
153,191).6 In light of the foregoing discussion, we rescind the schedule
' established at the March 27, 1986 special prehearing conference because neither the Licensee nor the Staff can be permitted to leave the presiding body and the other parties to the proceeding in the dark about any information which is relevant and material to the adjudication.
Duke Power Company (William B. McGuire Nuclear Station, Units 1 & 2),
ALAB-143, 6 AEC 623, 625 (1973); Georgia Power Company (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 408 (1975); Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 406 n. 26 (1976); Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387, 1394 (1982);
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1),
ALAB-774, 19 NRC 1350, 1357-58 (1984). Even if there is a reasonable doubt with regard to the Board notification obligation, the information should be disclosed for the Board to decide its true worth. Three Mile Island, supra, at 1358; McGuire Nuclear Station, supra, at 625 n.15.-
In the instant case, Staff's Response of April 30 at page 4 explicitly 6
During the special prehearing conference, passing references by TMIA's representative and by Staff's counsel indicating that further testing would be required by the Staff to confirm that tube corrosion had been arrested did not alert the Board to the j
importance of this event, especially since timing was not.
specified.
In any event, passing references made during the course of oral argument are no substitute for written Board notifications.
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- stated that the data to be evaluated in SSER "...will also bear directly on TMIA's Contentions 1, 2 and 5...".
We are not disposed, however, to grant entirely TMIA's motion for a six month extension of time to November 12, 1986 within which to complete discovery. TMIA's representative, Ms. Bradford, has advised that her participation in the other case would terminate at the end of July 1986 (Tr. 139). Allowing a fifteen (15) day period of grace to enable Ms. Bradford to review the record, the r.ew schedule, as set forth in the Order, infra, among other things, directs that discovery shall begin on August 15 and shall be completed by no later than September 29, 1986.
Further, as indicated in paragraph five of our Order, infra, we are utilizing a Zion type procedural mechanism.7 The hearing on all matters ripe for hearing will commence on December 15 and will be completed on December 19, 1986. After the record is closed on December 19, witnin ten days after service of the Staff's Supplement to the SER, TMIA may file a notice requesting an additional hearing (without having to meet the usual standards for reopening a record) limited to matters, within the scope of the admitted contentions, which arose subsequent to the closing of the record. TMIA is to be given timely access to all information directly relating to and within the scope of its admitted 1
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Commonwealth Edison Company (Zion Station, Units 1 and 2),
LBP-73-35, 6 AEC 861, 865, affd. ALAB-226, 8 AEC 381, 400 (1974).
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.f contentions which the Licensee has developed in the testing of certain pulled tubes scheduled to begin in November 1986 and which the Staff has developed in evaluating the Licensee's test data, which evaluation is scheduled to be accomplished by January 31, 1987.
4 During the course of the May 7 prehearing conference, we requested that, on May 14, the parties should simultaneously file briefs discussing whether the Board's utilization of the Zion type procedural mechanism would conflict with a decision by the United States Court of Appeals, District of Columbia Circuit, and discussing whether, pursuant to Commission case law, the Board could properly issue its decision in advance of the Licensee's confirmatory testing and the Staff's analysis thereof (Tr. 212-16).8 In Union of Concerned Scientists (U.C.S.), the Court of Appeals vacated a Commission rule,10 C.F.R. @50.47(a)(2).9 The rule provided that emergency preparedness exercises...are part of the operational inspection process and are not required for any initial decision. The Court vacated the rule because the adoption thereof was beyond the NRC's statutory authority in that Congress had not granted the Commission discretion to remove so material an issue as the results of offsite emergency preparedness exercises from hearings required by 8
The Commonwealth of Pennsylvania filed its brief on May 13, and the Licensee and the Staff filed on May 14. TMIA did not submit a brief.
9 Union of Concerned Scientists v. NRC, 735 F2d 1437, cert, den. sub nom., Alabama Power and Light Com)any v. Union of Concerned 5cTentists, _U.S._, 83 L.Ed.2d 308 (January 7,1985).
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'. %189(a)(1) of the Atomic Energy Act, 42 U.S.C. 52239(a)(1) (1976).
In support of taking the exercises out of licensing board's hearings and making them instead part of the NRC Staff's preoperational testing, the Commission, among other things, argued that an interested party could seek to reopen a concluded hearing if the actual conduct of the exercise identified fundamental defects in the emergency preparedness plans. The Court noted, however, that (1) the Commission had nowhere obligated itself to reopen proceedings pursuant to 10 C.F.R. 62.206; (2) in the past, the Comission has said that a hearing could be reconvened where a showing that its standards for reopening have been met; and that (3) the Commission's practice generally has been not to reopen a hearing absent new information that would clearly mandate a change in result (735 F2d.
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We conclude that our Zion type ruling does not run afoul of the U.C.S. decision. Moreover, we deem the Licensee's confirmatory tests and the Staff's analyses thereof to present material rather than minor issues in this case. At this time, without any evidence having been presented to us, in good conscience we could not leave these matters for posthearing resolution by the Staff.
Indeed the Comission, insofar as TSCR 148 is concerned, did not determine that there was no significant hazards consideration and instead issued a Notice of Opportunity for a Pr,ior Hearing. ~51 'F'ed. Reg. 459 (January 6,1986)
In proceeding to hear those matters which are ripe for hearing, we are complying with the Commission's direction that the hearing process j
should move along at an expeditious pace, consistent with the demands of
3 fairness.
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981). We have not placed any roadblocks by imposing the usual standards for reopening that must be met. TMIA, as well as any other party, has been afforded an ample opportunity after
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the close of the record to request an additional hearing limited to matters, within the scope of the admitted contentions, which arose subsequent to the closing of the record. TMIA will be given timely acc~ss to all pertinent information developed by the Licensee and the Staff after the close of the hearing with respect to the accuracy of eddy current testing and to continuing or new corrosion of the steam generator tubes.
Finally, we are aware that our schedule will delay the Licensee's implementation during the next refueling outage of the 70% throughwall amendment. Our decision, upon a record which may be reopened, will not be issued by January 15, 1987, which is the date upon which Licensee states it would need a decision in order to implement TSCR 148 during the currently scheduled outage period of November 3,1986 to March 13, 1987. However, Licensee's counsel also recognizes that the Staff's SSER will not be issued unt-il the end of January 1987 and thus, if possible, the, Licensee would have to get its testing results to the Staff at an earlier time (Tr. 200-203).10 Thus, while there is only a possibility 10 We note that, as Licensee's counsel apparently concedes, even if no hearing at all were held in this case, the Staff's reluctance to (Footnote Continued)
a i that the Licensee could accelerate its testing and the submission of the results to the Staff, there is no possibility that the Board could issue its decision before January 15, 1987. We must balance the consequences of delay to the Licensee against our obligations to protect public health and safety. Obviously, we conclude that public health and safety are paramount considerations.
ORDER 1.
Discovery in this consolidated proceeding shall begin on August 15 and shall be completed by September 29, 1986.
(Licensee's First Set of Interrogatories and Request for Production of Documents served on April 3 shall te deemed to have been served and received by TMIA on August 15,1986.) The time for a party's written response to a request for production of documents, etc. under 10 C.F.R. 92.741 is reduced from thirty (30) days to twenty (20) days. The parties shall make every effort infornially to engage in and expedite the discovery process.
2.
Any 62.749 motion for summary disposition shall be served by express mail or by hand-delivery on October 15, 1986. The time for answers supporting or opposing the motion, with or without affidavits, (Footnote Continued) permit.TSCR 148 to become effective before completion of both the Licensee's confirmatory tests and the Staff's analyses would make it difficult to assure that the change could be implemented in time to benefit Licensee during the scheduled refueling outage.
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s is reduced from twenty (20) to fifteen (15) days and such answers shall be served by express mail or by hand-delivery on October 31, 1986.
3.
In a conference call on November 10, 1986, without discussing its reasons, the Board will advise the parties whether the motions for summary disposition have been denied, granted or partially granted. If a motion is partially granted, the Board will advise which portion of a contention remains as a triable issue. As soon as is possible after 1
November 10, the Board will issue a formal order discussing the reasons for its rulings.
4.
On November 28, 1986, any written direct testimony of a party shall be served by express mail or by hand-delivery. As a separate enclosure, parties shall (1) list proposed exhibits, (2) advise whether any other party opposes the admission into evidence of any proposed exhibit and the reasons for such opposition, and (3) state that a copy of any proposed exhibit, not already in the possession of the other parties, has been furnished.
5.
The hearing will begin on December 15 at a time and place to be specified in a subsequent Order and will be completed on December 19, 1986. The Board's Order closing the record on December 19, 1986, will afford Intervenor TMIA, as well as other parties, an opportunity to request an additional hearing limited to matters, within the scope of die ad.7.itted contentions, which arose since the close of the record on December 19 -- i.e., limited, within the scope of the contentions, to a consideration of Licensee's pulling and testing of certain steam generator tubes scheduled to begin in November 1986 and to a i
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~ consideration of the Staff's evaluation of Licensee's test data which will be available before th? end of January 1987 in a supplement to the SER. TMIA will be given timely access to all such pertinent information so developed by the Licensee and the Staff after the close of the
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hearing with respec't to the accuracy of the eddy current testing and to continued or new corrosion. Within ten (10) days after service of the Staff's SSER, TMIA may file a notice requesting such a limited, additional hearing, without meeting the usual standards for reopening a record.
6.
The parties are directed to file, and the Commonwealth of Pennsylvania may file, proposed findings of fact, conclusions of law or briefs. The failure of any party to file may be deemed a default. The Licensee shall so file within thirty (30) days after the record is closed on December 19, 1986. TMIA shall so file, and the Commonwealth of Pennsylvania may file, within forty (40) days after the record is closed. The Staff shall so file within fifty (50) days after the record is closed. Licensee may file a reply within five (5) days after the filing of proposed findings and conclusions of law and briefs by other parties.
7.
If TMIA finds unacceptaale the partial denial of its Motion requesting a six month extension of time, within five (5) days after service of this Memorandum and Order, it shall formally notify the Board, and, pursuant to the alternative set forth in that Motion, the
i 1 Board will accept TMIA's notice of withdrawal and dismiss TMIA as an intervening party in this consolidated case.
THE ATOMIC SAFETY AND LICENSING BOARD bl Ja Sheldon J. &lfe, Chairman ADMINISTRA W E JUDGE i
V Frederick J. Shon /
ADMINISTRATIVE @ E D
Y 04 Dr. Oscar H. Paris ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 19th day of May, 1986, i
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