ML20199E195
| ML20199E195 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 03/20/1986 |
| From: | Churchill B GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#186-506 86-520-01-LA, 86-520-1-LA, OLA, NUDOCS 8603250406 | |
| Download: ML20199E195 (28) | |
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March 2hD,1986
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD .
In the Matter of )
) . .
METROPOLITAN' EDISON COMPANY, et al. ) Docket No. 50-289-OLA
) (Steam Generator)
(Three Mile-Island Nuclear Station, ) Plugging Criteria)
-Unit No. 1) ).
) ASLBP No. 86-520-01'LA
)
LICENSEE'S RESPONSE TO TMIA'S SUPPLEMENT TO PETITION TO INTERVENE I. Introduction On November 6, 1985, Licensee GPU Nuclear Corporation.sub-mitted Technical Specification Change Request No. 148 (" Change Request 148") for amendment of Operating License ~No. DPR-50 for Three Mile Island Nuclear Station, Unit 1. The proposed amend-ment seeks revision of the threshold criteria for determining when plugging or repair of the TMI-1 steam generator tubes is required.1/ In response to Licensee's submission, Three Mile 1/ The proposed amendment would modify the tube repair criteria for TMI-1 to allow Licensee to operate the steam gen-erators with inner diameter imperfections in certain areas of.
the tube penetrating up to 70% throughwall if not greater'than O.413 inches in circumferential length. It would provide for a sliding scale allowing imperfections of lesser throughwall pen-etration and greater length until the' imperfection is 0.8 inches long at a penetration of 40% throughwall.
8603250406 860320 PDR ADOCK 05000289 G PDR
6 Island Alert ("TMIA") filed a formal request for a hearing on Decembe'r 23, 1985.2/ The Commission subsequently published a notice captioned " Consideration of Issuance of Amendment to Facility Operating License and Opportunity for Prior Hearing,"
51 Fed. Reg. 459 (January 6, 1986), and established this Li-censing Board to rule on the request for a hearing, 51 Fed.
Reg. 2444 (January 16, 1986). In its February 12, 1986 Memorandum and Order (unpublished), the Licensing Board provi-sionally ordered a hearing, provisionally granted TMIA's peti-tion for-leave to intervene, and set the schedule for disposi-tion of pleadings and the prehearing conference on Change Request 148. On March 10, 1986, TMIA filed its supplement to its petition for leave to intervene, setting forth five pro-posed contentions.3/ Licensee herein provides its response to TMIA's supplement.
Licensee submits that none of TMIA's five proposed conten-tions meets the requirements of 10 C.F.R. 5 2.714(b), and TMIA's request for hearing must therefore be denied. In the following Sections II and III, Licensee addresses the existing standards for admissibility of proposed contentions, including 2/ Three Mile Island Alert's Formal Demand for Adjudicatory Hearing on Amendment to TMI-1-Operating License to Change Tube Plugging Criteria (December 23, 1985).
3/ TMIA's Supplement to Petition for Leave to Intervene (March 10, 1986).
o the doctrine of collateral estoppel, and in Section IV, Licensee applies those standards to TMIA's contentions.
II. Standards For the Admissibility of Contentions The Commission's Rules of Practice, s,t 10 C.F.R. 5 2.714(b), require that a petitioner submit a list of conten-tions which petitioner seeks to have litigated and set forth the basis for each contention with reasonable specificity.
This standard requires that a contention state a cognizable issue with particularity, Alabama Power Company (Joseph M. Far-ley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 216-17 (1974), and include a " reason" in support. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542, 548 (1980).
As a general proposition, a Licensing Board.should not address the merits of a contention in determining admissibili-ty. Allens Creek, supra, ALAB-590, 11 N.R.C. at 548. However, a contention and its basis must be scrutinized to determine if a specific, litigable issue has been pleaded. Joseph M.
Farley, supra, ALAB-182, 7 A.E.C. at 216. Such scrutiny is necessary 1) "to assure that the proposed issues are proper for adjudication," 2) "to help assure at the pleading stage that the hearing process is not improperly invoked," and 3) "to help assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to
-defend against or oppose." Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 i A.E.C. 13, 20-21 (1974) (footnotes omitted). In this regard, there must be strict observance of the requirements governing intervention. Id. at 21.4/ Elaboration of the principles relating to the admissibility of contentions follows.
4/ Generally, pro se petitioners -- unschooled in the Commis-sion's pleading requirements -- are held to less rigid stan-dards of clarity and precision with regard to an intervention petition (though a totally deficient petition must be re-jected). Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 A.E.C. 487, 489 (1973). And even.an inexperienced pro se party is expected to familiarize herself with the Commission's Rules of Practice.
Pennsylvania Power and Light Co. (Susquehanna Steam Electric >
Station, Units 1 and 2), ALAB-563, 10 N.R.C. 449, 450 n.1 (1979). Further, petitions drawn by counsel experienced in NRC practice must exhibit a high degree of specificity. Kansas Gas
& Electric Co. (Wcif Creek Generating Station, Unit No. 1),
ALAB-279, 1 N.R.C. 559, 576-77 (1975).
l TMIA's representative can similarly be reasonably expected to exhibit a high degree of specificity in her pleadings. TMIA is represented by counsel experienced in NRC proceedings.
TMIA's counsel is a seasonsoned veteran of the TMI-l Restart proceedings, with at least six years of experience in active ,
- NRC intervention. As such, she is no stranger'to the Commis-l sion's requirement that contentions have a " basis" stated with i " specificity." She is also well aware of the existence and
! availability of the Public Document Room, and the-procedures for its use. Furtile r, she knows the significance of documents such as Li'censee's supplemental technical documents in a given proceeding. Thus, the petitioner here is not entitled to the l leniency which may be accorded novice pro se petitioners.
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A. The Issues Must be Proper for Adjudication in the Proceeding A petitioner, in setting forth the basis for its conten-tion, should establish a nexus between the substance of the contention and the statutory and regulatory scope of the Board's jurisdiction. Publ'ic Service Compa'ny of New Hampshire (Seabrook. Station, Units 1 and 2), LBP-82-106, 16 N.R.C. 1649, 1654 (1982). ~With respect to any safety issue, it should specify a regulation with which applicant is allegedly not com-plying and provide sufficient detail to permit the Board to de-termine how the regulation is being violated; or it should al-lege with particularity the existence and detail of a substantial safety issue on which the regulations are silent.
Id. at 1656.
1 In addition, the contention must provide a foundation suf-ficient to warrant further exploration. Peach Bottom, supra, ALAB-216, 8 A.E.C. at 21; Duquesne Light Company (Beaver Valley
-Power Station, Unit No. 1), ALAB-109, 6'A.E.C. 243, 246 (1973). ,
See also Seabrook, supra, LBP-82-106, 16 N.R.C. at 1655, citing Consumers Power Company (Midland Plant, Units 1 and 2),
CLI-74-5, 7 A.E.C. 19, 32 n.27 (1974), rev'd sub nom.,
Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976), rev'd sub nom., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-54 (1978) (a contention must be-sufficient to require rea- ,
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sonable minds to inquire further). In this regard, the basis i
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for the contention should provide either a reasonably logical and technically credible explanation Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-765, 19 N.R.C. 645, 652-56 (1984), or a plausible and referenced au-thority for the factual assertions in'the contention. The pe-titioner's personal opinion alone is not adequate for this pur--
pose.
A contention should refer to and address documentation, available in the public domain that-is relevant to this facility. Cleveland Electric Illuminating Company, (Perry Nuclear Power Plant, Units 1 & 2), LBP-81-24, 14 N.R.C. 175, 184 (1981). The Commission itself has emphasized petitioners' duties in this regard. See generally Duke Power Company (Ca-tawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 N.R.C.
1041 (1983). The Commission held that a petitioner has an ironclad obligation "to diligently uncover and apply all pub-licly available information to the prompt formulation of con-tentions."' Id. at 1048. This requirement for specific refer-ence to relevant documentation applies with special force to Licensee's supplemental-technical documents supporting Change Request 148, but may also include applicable NRC Staff regula-tory guides and other published reports and' transcripts. If a contention inaccurately describes a Licensee's proposal or mis-
_ states the content of Licensing or NRC documents, it should be rejected. See Carolina Power & Light Company, and North
-Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C. 2069, 2076 (1982); Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-82-107A, 16 N.R.C. 1791, 1804 (1982); Philadelphia Electric Company (Limerick Generating Station,-Units 1 and 2),
LBP-82-43A, 15 N.R.C. 1423, 1504-05 (1982).
B. The Parties Must Be Put on Notice of the Issues The notice aspect of the requirement is a natural out-growth of fundamental notions of fairness applied to the party with the burden of proof. As the Atomic Safety.and1 Licensing Appeal Board has observed:
The applicant is entitled to a fair chance to defend. It'is therefore' entitled to be told at the outset, with clar_ity and precision, what arguments are being advanced and what relief is being asked. . . . So is the Board.
below. It should not be necessary to specu-late about what a pleading is supposed to mean.
Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 N.R.C. 559, 576 (1975) (emphasis added; footnote omitted). Moreover, the Licensing Board is en-titled to adequate notice of a petitioner's specific conten-tions to enable it to guard against the obstructionism of its
. processes. As noted by the Supreme Court in upholding the Com-mission's requirements for a threshold showing of materiality:
. . . [I]t is still incumbent upon interve-nors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the
1 intervenors' position and contention. . . .
Indeed, administrative proceedings should not be a game or forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that "ought to be"' con-sidered. . . .
. Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, 435 U.S. 519, 553-554 (1978).
The specificity requirement transcends " notice pleading" allowed'in the_ federal courts, which has been found to be in-sufficient for NRC licensing proceedings. -See Wolf Creek, supra,.ALAB-279, 1 N.R.C. at 575 n.32.(1975). It does not, however, require the petition to detail the evidence which will be offered in support of each contention. -Peach Bottom, supra,
. ALAB-216, 8 A.E.C. 13, 20 (1974).5/ In short, the standard falls somewhere in between, and "[t]he degree of specificity with which the basis for a contention must be alleged initially involves the exercise of judgment on a case-by-case basis."
Id.-
_III. Collateral Estoppel 4 As will be discussed in Section IV, some of the allega-tions proposed by TMIA seek to raise issues which have already been raised, litigated, and decided in prior proceedings involving TMI-l's steam generators. These issues are barred by the doctrine of collateral estoppel.
5/ See also Missouri Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A.E.C. 423, 426 (1973); Allens Creek, supra, ALAB-590, 11 N.R.C. at 548-549.
The collateral estoppel doctrine has long been held appli-cable to NRC' adjudicatory proceedings to prevent parties from improperly relitigating issues. See Alabama Power Company (Joseph M. Earley Nuclear Plant, Units 1.and 2), ALAB-182, 7 A.E.C. 210, modified on other grounds, CLI-74-12, 7 A.E.C. 203 (1974); Cleveland Electric Illuminating Company (Perry Nuclear Power Plant,-Units 1 and 2), LBP-81-24, 14 N.R.C. 175, 200 (1981). Pursuant to the collateral estoppel doctrine, an issue which has been actually and necessarily determined by a court or licensing board may not be relitigated in a subsequent case based on a different cause of action involving a party to the prior litigation. Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 N.R.C. 1423, 1459 (1982), citing Montana v. United States, 440 U.S. 147, 148 (1979). Licensing Boards have applied the collateral estoppel doctrinc when four elements are present: (1) the issue for which preclusion is sought is the same aus that involved in the prior action; (2) the issue was actually litigated; (3) the issue was determined by a valid final judgment; and (4) determination of the issue was essential to the prior judg-ment. Houston Lighting and Power Company (South Texas Project, Units 1 and 2), LBP-79-27, 10 N.R.C. 563, 566 (1979), affirmed, ALAB-575, 11 N.R.C. 14 (1980). When these eleraents are present, a' contention presenting an issue that has previously been litigated should not be admitted.9/
s/ Collateral estoppel, if otherwise appropriate, need not be applied if there is a " particularized showing of such changed (Continued next page)
IV. TMIA's Contentions None of TMIA's proposed contentions comes even close to satisfying the Commission's requirements for admissibility of contentions. 10 C.F.R. 5 2.714(b). The fundamental defect common to all five contentions is the failure to state'any basis for the allegations, let alone state them with any degree of reasonable particularity. This lack of basis, together with the overly broad and unexplained allegations in the conten-tions, does not provide a foundation sufficient to warrant fur-ther exploration,Section II.A, supra, does not satisfy the requirement that TMIA refer to and address relevant informatoin in the public record, id., does not provide the other parties with the notice to which they are entitled in order to defend against the allegations,Section II.B, supra, and does not pro-vide the Licensing Board with a basis for evaluating the suitability of the issues for litigation in this proceeding, id.
Some of the allegations appear to be relevant to the sub-ject matter of this proceeding, others obviously are not. The (Continued) circumstances or public interest' factors" so as to warrant relitigation of an issue. Alabama Power Company (Joseph M.
Earley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 A.E.C. 203, 204 (1974).
lack of explanation or basis in other instances makes it impos-sible to determine a nexus between the allegation and the re-quest for amendment of the plugging criteria. Section II.A, supra.
In addition, all of the allegations contained in Contention 1, and at least one allegation included in Contention 4, have been previously litigated and decided in a
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prior proceeding to which TMIA was an active party. As such, those issues are barred from consideration in this proceeding by the doctrine of collateral estoppel. Section III, supra.
CONTENTION 1 TMIA's first contention states:
Neither the Licensee nor the NRC Staff have demonstrated that allowing degraded tubes to remain in service under the proposed re-vised plugging criteria will provide rea-sonable assurance that TMI-1 can operate without endangering the public health and safety, because the form and rate of new tube degradation has n'ot been determined.
This contention alleges that the " form and rate of new tube degradation has not been determined." Implicit in the contention is the allegation that new tube degradation is in fact occurring. TMIA Contention 1 should be rejected because it fails to state a basis for any of the allegations contained therein and rests on the erroneous and unsupported assumption that new. degradation is occurring. In addition,- TMIA is
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foreclosed by the doctrine of collateral estoppel from relitigating their allegations of new tube degradation.
TMIA has provided no basis whatsoever for any of the alle-gations contained or implied in Contention 1. The crux of TMIA's allegation is the assumption that the steam generator tubes are experiencing new degradation -- presumably resulting from some perceived ongoing corrosion. However, TMIA does nothing more than simply allege that the form and rate of new tube degradation has not been determined. It does not even at-tempt to state a basis for those allegations, or for the im-plied allegation that such new tube degradation exists.7/
Change Request 148 seeks amendment of the plugging criteria only with respect to imperfections. originating on the inner diameter (primary side) of the steam generator tubes; the criteria for outer diameter (secondary side) imperfections ~will remain ~ unchanged. Thus, the degradation referred to in Conten-tion 1 can only refer to that on the inner diameter. Industry-wide, the degradation of interest for steam generator tubes is primarily that which occurs on the outer diameter. Inner 7/ TMIA has also failed to relate its allegations to the scope of this proceeding, which is defined by the license amendment requested in Change Request 148. The purpose of the plugging criteria is to define the point at which a steam gen-erator tube should be plugged or otherwise repaired, should degradation occur, irrespective of the form and rate of the degradation. TMIA has provided no nexus between its allega-tions of new tube degradation and revision of the plugging criteria. Seabrook, supra.
diameter corrosion is uncommon. TMI-1 is unique in that, be-cause of an unusual set of circumstances which occurred in 1981 during the long period of time when the plant stood idle, cor-rosion occurred on the inner diameter of the tubes. The form of the corrosion on the inner diameter of the tubes has been identified, the circumstances. causing it have been identified and stopped, and the corrosion process has~ ceased. TMIA has provided no basis to assert otherwise.
The issues raised in Contention 1 were specifically liti-gated in a prior steam generator repair proceeding to which TMIA was a party,' and were decided against TMIA in Licensee's favor in a valid final judgment. Thus, TMIA is barred from relitigating the issues presented in Contention 1 by the well established doctrine of collateral estoppel.
That prior proceeding involved Licensee's use of a kinetic expansion repair process for tubes which had experienced the inner diameter corrosion. TMIA alleged in its Contention 2.a that neither "the causative agent [nor] the source of initiation or the conditions under which initiation originally
! occurred have been properly identified," and thus it had'not l
l been demcnstrated that the corrosion "will not reinitiate dur-ing plant operation and rapidly progress . . ." See Metropolitan Edison Co. (Three Mile Island Nuclear Station, i
l Unit No. 1), ALAB-807, 21 N.R.C. 1195, 1203, n.29 (1985). The
! Licensing Board in that proceeding granted the summary 1
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disposition motions of both Licensee and the-Staff dismissing Contention 2.a on the basis of those parties' detailed demon-strations that the cause of the corrosion had been identified and arrested, and that the corrosion would not therefore con-tinue. See id., Memorandum and Order (Rulings on Motions for-Summary Disposition) (June 1, 1984) (unpublished) at 56-67; see also id. at 71-80.
TMIA appealed the Licensing Board's disposition of Conten-tion 2.a, and also requested the Appeal Board to reopen the record on the issue of corrosion reinitiation on the basis of new information (temporary increases in sulfur and chloride levels in the primary and secondary systems and the results of recent eddy current testing). The Appear Board affirmed the Licensing Board's summary disposition of Contention 2.a, noting that ". . . the Licencing Board. concluded that the cause of the corrosion had been properly identified and that there was rea-sonable assurance that corrosion would not begin again," and that "[n]one of TMIA's arguments undermines the Board's deci-sion." Id., ALAB-807, 21 N.R.C. 1195, 1203. See also id..at 1209 (". . . additional corrosion is not taking place . . .").
The Appeal Board also considered the new information offered in support of the motion to reopen. It concluded that the temporary increases in sulfur and chloride levels would not cause new or reinitiated corrosion, id. at 1205, and that the recent eddy current test indications were the results of the
4 corrosion mechanism that occurred in 1981 and "are not the re-sult of new or a different form of corrosion," id. at 1210.
TMIA, in its Contention 1, is seeking to relitigate the precise issues it litigated in the prior proceeding where the issues were determined by a valid final judgment. It is thus foreclosed from relitigating that issue in this proceeding pur-suant to the collateral estoppel doctrine. See, e.g.,
Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 N.R.C. 175, 200'(1981).g/
TMIA has cited no new information developed subsequent to the final determinations in the prior proceeding which would in any way qualify or undermine those determinations. Indeed, there is none. To the contrary, subsequent analyses and evalu-ations contained in TDR-638 (Appendix C to Change Request 148) and TDR-652 (submitted as a source document for Change Request 148 by letter dated December'2, 1985) have provided additional
. confirmation of the conclusions that there is no new or con-tinuing degradation of the inner diameter of the steam genera-tor tubes.9/
Because TMIA has provided no basis for its allegations of new tube degradation, and because the allegations are barred g/ See also discussion in Section III, supra.
9/ Earlier versions of both documents were before the Appeal Board in the prior proceeding.
from relitigation by the doctrine of collateral estoppel, Contention 1 should not be admitted as a matter in controversy in this proceeding.
CONTENTION 2 TMIA's second proposed contention states:
Neither the Licensee nor the NRC Staff have demonstrated that allowing degraded tubes to remain in service under the proposed re-vised plugging criteria will provide rea-sonable assurance that TMI-1 can operate without endangering the public health and safety, because the testing technique relied upon to define degraded tubes is in-accurate and inconclusive, in light of the particular method of degradation.
This contention advances the bare allegation that the testing technique relied upon to define degraded tubes is inac-curate and inconclusive, in light of the particular method of degradation.
TMIA has failed to state a basis.for the acceptance of Contention 2.10/ The allegation that Licensee's " testing tech-nique"11/ is inaccurate and inconclusive is premised on "the 10/ It should be noted that petitioners offered in the prior steam generator repair proceeding a contention challenging the accuracy of eddy-current testing, which was rejected as lacking basis by the Licensing Board. See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1281 (1983). The instant contention provides even less basis (indeed, no basis at all) for the allegation that the testing method is inaccurate, and accordingly should also
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be rejected. 4
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s Although not stated by TMIA, the testing technique used by ]
' Licensee to identify and define degraded tubes is eddy current testing.
I particular method of degradation." .As noted in the discussion of Contention 1 above, however, there exists no ongoing inner diameter degradation, and TMIA has provided no basis to assert the contrary. TMIA has failed to explain, either directly or by reference to relevant documents, how the eddy current tests are inaccurate or inconclusive. TMIA likewise has failed to state why it believes that Licensee's eddy current tests are inaccurate or inconclusive. TMIA also has failed to explain how "the particular method of degradation" adversely affects Licensee's testing technique. Absent the provision of a basis for these claims, TMIA has failed to provide the level of spe-cificity -- or any specificity whatsoever -- required by 10 C.F.R. 5 2.714(b).
An even more fundamental deficiency exists in that TMIA has not explained how the accuracy of eddy current testing is germane to the proposed revision of the plugging criteria, i.e., how eddy current accuracy is any more relevant to a plug-ging limit of greater than 40% throughwall than it is to the existing 40%. limit. The vagueness of the contention and the
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lack of basis prevents Licensee from even inferring what the nexus might be. For whatever TMIA may be referring to as the unspecified "particular method of degradation," eddy current accuracy in the detection and measurement of tube imperfections is the same irrespective of the plugging limit.12/
12/ The NRC has'long recognized and taken into account the fact that there is a threshold of detection with eddy current (Continued next page) 4 Because TMIA has failed to specify any basis' whatsoever for the allegations in Contention 2, and has fa'iled to provide a nexus between the allegations and the proposed plugging criteria, TMIA has failed to meet the basis and specificity requirements for admissibility of contentions, and Contention 2 must be dismissed.
CONTENTION 3 TMIA proposed Contention 3 provides:
Neither the Licensee nor the NRC Staff have '
demonstrated that allowing degraded tubes to remain in service under the proposed re-vised plugging criteria, which could con-tribute to the frequency of leakage during plant operations, is consistent with the requirements of GDC 32.
Contention 3 alleges that Licensee has not demonstrated that the proposed plugging criterion is consistent with GDC 32.13/ Also contained in Contention 3 is the sweeping (Continued) testing. Very small imperfections may go undetected, and the NRC has long since determined that the low threshold of detec-tion does not present unacceptable safety consequences.
Changing the plugging criteria changes neither the threshold of detectability nor the consequences of failing to detect small imperfections.
13/ General Design Criterion 32, " Inspection of reactor coolant pressure boundary," 10 C.F.R. Part 50, App. A, states:
Components which are part of the reactor coolant pressure boundary shall be designed to permit (1) periodic inspection and (Continued next page)
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4 parenthetical allegation that adoption of the proposed plugging criteria "could contribute to the frequency of leakage during plant operation."
TMIA Contention 3 chould not be admitted because TMIA has failed to state the basis therefor with particularity as re-quired by_10 C.F.R. $ 2.714(b). Indeed, as is the case for all five of TMIA's proposed contentions, TMIA has stated no basis whatsoever. TMIA has provided no explanation of how or why it thinks that Change Request 148 can be construed to be inconsis-tent with GDC 32.
Moreover, TMIA has failed to show the relevance of its al-legation of inconsistency with GDC 32 to the proposed change in the plugging criteria. GDC 32 specifies that components which are part of the reactor coolant pressure boundary shall be designed to permit " periodic inspection and testing of impor-tant areas and features to assess their structural and leaktight integrity." Change Request 148 provides no hindrance to or modification of the performance of periodic inspection and testing of the st6am generator tubes, and has no effect on the frequency of testing. Thus, Change Request 148 is not and could not be construed as inconsistent with GDC 32.
(Continued)
' testing of important areas and features to assess their structural and leaktight in-tegrity, and (2) an appropriate material surveillance program for the reactor pres-sure vessel.
.Similarly, the vague allegation that the proposed plugging criteria "could contribute to the frequency of leakage during plant operations" is equally unsupported, i.e., no basis is provided. A certain amount of leakage is allowable under the license conditions, and TMIA has not even claimed that the al-leged leakage would be unacceptable leakage.
Defects which do not. propagate to 100% throughwall do not leak. Change Request 148 would allow penetration of up to 70%,
and only under limited circumstances. TMIA has provided no ex-planation for the proposition that tubes with up to 70%
throughwall indications are likely to contribute to leakage at TMI-1.
As described.in Section III of Change Request 148 at 3-4, the proposed criteria were developed from existing analyses of the serviceability of tubes with imperfections under normal, transient and accident conditions. These analyses included ASME Section III and Section XI fatigue evaluations.14/ The results of these analyses demonstrate that the proposed changes to the plugging criteria are in all cases bounded by the ASME Section III analysis (crack initiation) and ASME Section XI analysis (propagation of existing flaw) with a margin of 10% or 14/ ASME~Section III provides-guidance for designing nuclear pressure components against failure; ASME Section XI provides guidance for evaluating the impact of suspected flaws in pres-sure retaining components inservice.
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greater on nominal throughwall in all cases. Accordingly, the change in criteria will not result in propagation of any exist-ing cracks to 100% throughwall, and hence will not cause in-creased leakage.
CONTENTION 4 TMIA's fourth proposed contention claims:
Neither the Licensee nor the NRC Staff have demonstrated that allowing degraded tubes to remain in service under the proposed re-vised plugging criteria is consistent with the requirements of GDC 31, in that the
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criteria does not take into account envi-ronmental effects, including possible envi-ronmental corrosion even in the absence of active corrosion mechanisms.
Contention 4 alleges that Licensee has not demonstrated -
that the proposed plugging limit is consistent with the requirements of GDC 31, in that the criteria do not'"take into account environmental effects, including possible environmental corrosion even in the absence of active corrosion mechanisms."
TMIA's Contention 4 is vague. There is no discussion of GDC 31, making it difficult for licensee to determine exactly what TMIA is asserting.15/ Whatever the allegation is, no 15/ General Design Criterion 31, " Fracture prevention of reac-tor coolant pressure boundary," 10 C.F.R. Part 50, App. A, states:
The reactor coolant pressure boundary shall be designed with sufficient margin to as-sure that when stressed under operating, (Continued next page) basis is provided and it must, therefore, be rejected for fail-ure to satisfy the contention requirements _of 10 C.F.R. 5 2.714(b).
TMIA does not explain the purported significance of con-sidering environmental effects. It does not state with partic-ularity what environmental effects it believes Licensee should have considered. It does not explain what it means by "envi-ronmental corrosion." It does not explain how the tubes remaining in service could experience corrosion in the absence of active corrosion mechanisms.ls/ TMIA has also failed to explain the relationship between the alleged lack of (Continued) maintenance, testing, and postulated acci-dent conditions (1) the-boundary behaves in a nonbrittle manner and (2) the probability of rapidly propagating fracture is mini-mized. The design shall reflect considera-tion of service temperatures and other con-ditions of the boundary material under operating, maintenance, testing, and postu-lated accident conditions and the uncer-tainties in determining (1) material prop-erties, (2) the effects of irradiation on material properties, (3) residual, steady state and transient stresses, and (4) size of flaws.
1p/ Licensee ~has already litigated and established that corro-sion will not take place in the absence of active corrosion mechanisms. See Summary Disposition Order at 60; Licensee's Motion for Summary Disposition of Each of TMIA's and Joint In-tervenors' Contentions (February 24, 1984); Affidavit of F.
Scott Giacobbe.at 4. To the extent TMIA is seeking to estab-lish the contrary, it is foreclosed from relitigation by col-lateral esteppel. See Licensee Response to Contention 1, supra.
t consideration of environmental effects, including " environ-mental corrosion," and the requirements of GDC 31. Licensee has not been placed on notice of the issue (s) TMIA would have it defend as required by 10 C.F.R. 5 2.714(b). TMIA's Conten-tion 4 clearly lacks the legal and factual basis required to raise it beyond the level of opinion to that of an admissable contention.
In any event, Licensee has complied with the requirements of GDC 31. That general design criterion relates to the design of the reactor coolant boundary. Basically, it specifies that the boundary should be designed to assure that when it is stressed under specified conditions, it (1) behaves in a non-brittle manner, and (2) the probability of rapidly propagating fracture is minimized. The use of the proposed criteria in Change Request 148 would not alter the boundary ma-terial, and hence would not affect the non-brittle behavior of such material.
Consistent with GDC 31, as discussed in Section III of Change Request 148, Licensee implemented ASME Section XI meth-odology to demonstrate that sufficient design margin will exist throughout operational life. Use of this methodology included consideration of actual operating conditions and flaw size. In
-keeping with ASME Section XI, the crack growth rate relation-ship used in the structural analysis has its basis in testing of the actual material (Inconel 600), as reported in industry l
t i
l t
s t
literature. The conditions of the tests as reported in the literature were representative of the actual operating condi-tions in the TMI-1 steam generators. In addition, this crack growth relation was verified through extrapolation of experi-mental results obtained for operating temperatures using actual TMI-1 reactor coolant chemistry specifications.
CONTENTION 5 TMIA Contention 5 states:
Neither the Licensee nor the NRC Staff have demonstrated that allowing degraded tubes to remain in service under the proposed re-vised plugging criteria is consistent with Reg. Guide 1.121, which requires that plug-ging criteria take into account variations in tube thickness due to possible corro-sion.
TMIA is alleging that Licensee has not demonstrated that the proposed plugging criteria is consistent with Reg. Guide 1.121, in that the criteria allegedly do not take into account variations in tube thickness due to possible corrosion.
As framed by TMIA, Contention 5 cannot be accepted as an admissible contention as a matter of law. The contention is based solely on TMIA's assertion that NRC's Regulatory Guide 1.121 " requires" that plugging criteria take into account vari-ations in tube thickness due to possible corrosion. NRC's reg-ulatory guides provide guidance; they do not set out mandatory regulatory ~ requirements. Long Island Lighting Co. (Shoreham Nuclear Power Station,_ Unit 1), ALAB-788, 20 N.R.C. 1102, 1161 L
F.
(1984). Accordingly, a licensee may apply acceptable alterna-tives to.the specific guidance contained in a regulatory guide.
Id. at 1169-1170. See Reg. Guide 1.121 at 1.121-8.
i TDR-690, " Comparison of GPUN Propesed OTSG Tube Plugging Criteria to Reg. Guide 1.121," (Appendix B to Change Request 148) provides a detailed comparison of the proposed plugging criteria with the guidance in Reg. Guide l.121. It demon-strates the adequacy of Licensee's alternative approach to the Reg. Guide 1.121 Item C.2.b at 1.121-5 relating to the thickness degradation allowance. TDR-690 at 3,6. For Conten-l tion 5 to be initially cognizable by the Licensing Board, it would.have.to allege that such an approach by Licensee fails to satisfy an identified regulatory requirement or is otherwise inadequate for protection of the health and safety of the pub-lic. Seabrook, supra, 16 N.R.C. 1649 at 1656. No such allega-tion is made, and certainly no explanation or basis is provided for such an allegation.
Accordingly,'because TMIA has failed to provide a litigable allegation in Contention 5, .and has failed to satisfy the specificity and basis requirements of 10 C.F.R. $ 2.714(b),
the contention is not admissible as an issue in this proceed-ing.
1
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IV. CONCLUSION For all the foregoing reasons, none of TMIA's proposed contentions qualifies for admission as a matter in controversy in this proceeding. Accordingly, TMIA :has failed to provide at least one litigable contention satisfying the requirements of 10 C.F.R. $ 2.714(b), and the request for hearing and petition for intervention in this proceeding must therefore be denied.
Respectfully submitted, I
sf ;
- ,(
Fruce W7 Churchilf, P.C.
Alan D. Wasserman Wilbert Washington II SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Counsel for Licensee Dated: March 20, 1986
I' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Oh'fTED T Before the Atomic Safety and Licensing B r$'Mapull -
P4 :59 In the' Matter of )
) Docket No. 50-289-OLA METROPOLITAN EDISON COMPANY, et al.) ' - - - -
) Plugging Criteria)
(Three Mile Island Nuclear Station,)
Unit No. 1) ) ASLBP No. 86-520-01 LA
)
CERTIFICATE OF SERVICE This is to certify.that copies of " Licensee's Response I
to TMIA's Supplement To Petition For Leave To Intervene" were i
served, by deposit in the United States Mail, first class, postage prepaid, to all those on the attached Service List, except that those marked with one asterisk were served by
.I hand delivery on the 21st day of March, 1986, and those marked-
' with two asterisks were served by overnight Federal Express this 20th day of March, 1986.
Respectfully submitted,
- I s i f j JL l Bru'ce W. ' Churchill, P.C.
Dated: March 20, 1986 i
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1z _ . . . _ . . . . . . . . . . _ ,. .. . . . , . _ _ _ _ _ . . . _ . . . . . . _ _ . _ . . _ _ _ _ . . _ , _ . . _ . . _ . . _ . . . _ . _ . . , . _ _ _ . . . .
I b-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission i
In the Matter of ) ,
4 ) Docket No. 50-289-OLA METROPOLITAN EDISON COMPANY, et al. ) (Steam Generator
) Plugging Criteria)
(Three Mile Island Nuclear Station, )
Unit No. 1) ) ASLBP No. 86-520-01 LA
)
i SERVICE LIST 4
4
- Sheldon J. Wolfe, Chiarman. Docketing and Service Section (3)
Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Commission ** Joanne Doroshow, Esq.
~ Washington, D.C. 20555 Three Mile Island Alert, Inc.
- 315 Peffer Street
- Oscar H. Paris Harrisburg, PA 17102 Administrative Judge Atomic Safety and Licensing Thomas Y. Au
, Board Panel Assistant Counsel Commonwealth U.S. Nuclear Regulatory Commission of Pennsylvania Washington, D.C. 20555 Dept. of Environmental Resources Bureau.of Regulatory Counsel
- Frederick J. Shon Room 505 Executive House l Administrative Judge P. O. Box 2357 Atomic Safety and Licensing Harrisburg, PA 17120 Board Panel
+
U.S. Nuclear Regulatory. Commission Washington, D.C. 20555
- Mary E. Wagner, Esq. (2)
Office of Executive Legal Director -
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission
! Washington, D.C. 20555 Atomic Safety and Licensing Board Panel-U.S. Nuclear Regulatory Commission
- Washington, D.C. 20555 4
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