ML20199E230
| ML20199E230 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/20/1986 |
| From: | Wagner M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#186-510 OLA, NUDOCS 8603250436 | |
| Download: ML20199E230 (10) | |
Text
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March 20,1986 O
e 00CKETE0 USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION "F6 fmR 24 P3 :?2 BEFORE THE ATOMIC SAFETY AND LICENSING. BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY,
)
Docket No. 50-289 oL. A ET AL.
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(Steam Generator Plugging
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Criteria)
(Three Mile Island Nuclear Station,
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Unit No.1)
)
NRC STAFF RESPONSE TO TMIA'S SUPPLEMENT TO PETITION TO INTERVENE I.
INTRODUCTION On January 6,1986, pursuant to 10 C.F.R. I 2.105(a)(3), the NRC published in the Federal Register a notice of consideration of the issuance 1
of an amendment to the Three Mile Island, Unit 1 (TM1-1) license and offered an opportunity for prior hearing on the amendment.
51 Fed.
Reg. 459.
On December 23, 1985, prior to the issuance of the Federal Register Notice, Three Mile Island Alert, Inc. (TMIA) filed a request for l
hearing. O I-By Order of February 12, 1986, the Licensing Board in this pro-ceeding scheduled a prehearing conference for March 27, 1986 and set March 10, 1986-as the deadline to file a supplement to the intervention petition, setting forth proposed contentions.
On March 10, 1986, TMIA
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Formal Demand. For Adjudicatory Hearing on Amendment to TMI-1 Operating License To Change Tube Plugging Criteria, December 23, 1985.
DESIGNATED ORIGINAL 8603250436 860320 Certified Bylj d_7 hJ~~
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- I filed a supplement to its petition to intervene, which supplement _ included five contentions.
TMIA's Supplement to Petition for Leave to Intervene (Supplement).
The Staff response to each of TMIA's proposed contentions is set forth below.
i II.
NRC STAFF RESPONSE In its Supplement, TMIA proffers five contentions (designated as Contentions 1-5) for admission and litigation.
In the discussion below, the Staff addresses the legal standards governing the admission of con-tentions in NRC adjudicatory proceedings, followed by the Staff's position on the admissibility of TMIA's proposed contentions.
i A.
Legal Standards Governing Admissibility of Contentions Only those contentions which fall within the scope of issues set forth in the Federal Register notice of opportunity for hearing and comply with the requirements of 10 C.F.R. I 2.714(b) and applicable Commission case law may be admitted for litigation in NRC licensing proceedings.
- See, g, Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, i
-2/
By an earlier pleading dated February 24, 1986, TMIA amended its petition to intervene by including an affidavit from TMIA member Katherine K. Pickering.
TMIA's Amendment to Petition for Leave to Intervene, February 24, 1986.
(Amended Petition).
In its response to the original petition to intervene, the Staff noted that TMIA had not shown its standing to intervene because it had not identified at least one member who has standing and has authorized TMIA to rep-resent his or her interests.
NRC Staff Response To TMIA's Demand For Adjudicatory Hearing, January 13, 1986, 11-12.
The affidavit of Katherine K.
Pickering asserts that Ms. Pickering, a member of TMIA, resides approximately ten miles from TMI-1, and authorizes TMIA to intervene on her behalf in this proceeding.
Accordingly, the Staff submits that TMIA has adequately demonstrated its stand-ing through the interest of at least one member.
12 NRC 419, 426 (1980); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-245, 8 AEC 873, 875 (1974); Phila-delphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-216, 8 AEC - 13, 20 (1974); Commonwealth Edison Co. (Byron Sta-tion, Unita 1 and 2), LBP-80-30,12 NRC 683, 689 (1980).
See also Port-land General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.6 (1979).
Pursuant to 10 C.F.R. I 2.714(b), a petitioner is required to file "a i
list of contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity."
A petitioner who fails to file a least one contention which satisfies the
~
requirements of I 2.714(b) will not be permitted to participate as a party.
A proffered contention must be rejected where:
f (1) it constitutes an attack on applicable statutory requirements; l
(2) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; t
(3) it is nothing more than a generalization regarding the Petitioner's view of what applicable policies ought to be; (4) it seeks to raise an issue which is not proper for adjudi-cation in the proceeding or does not apply to the facility in question; or (5) it seeks to raise an issue which is not concrete or litigable.
Peach Bottom, supra, 8 AEC -at 20-21.. The purpose of the basis require-ment of 10 C.F.R. I 2.714(b) is:
(a) to assure that the matter sought to be put into question does not suffer from any of the infirmities listed above; (b) to establish sufficient foundation to warrant further inquiry.
into the subject matter; and (c) to put the other parties sufficiently on
i notice "so that they will know at least generally what they will_ have to defend against or oppose."
Td. at 20.
At the early stages of a proceeding, petitioners need to identify only the reasons "(i.e., the basis)" for each contention..
Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590,11 NRC 542, 548 (1980). The basis stated for each contention need not " detail the evidence which will be offered in support of each contention."
Mississippi Power and Light Co. (Grand Gulf Nuclear Sta-tion, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973). Accordingly, in examining contentions and the bases therefore to determine admissibility, a licensing board may not reach the merits of contentions.
Id.; Peach Bottom, supra, 8 AEC at 20.
Nevertheless, the basis for contentions must be sufficiently detailed and specific:
(a) to demonstrate that the issues raised are admissible and further inquiry into the matter is war-ranted; and (b) to put the parties on notice as to what they will have to defend against or oppose.
This is particularly important where, as here, a hearing is not mandatory, in order to assure that an asserted conten-tion raises an issue which clearly is open to adjudication.
Cincinnati Gas
_a Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3.
l NRC 8,12 (1976); Gulf States Utilities Co. (River Bend Station, Units 1
(
and 2), ALAB-183, 7 AEC 222, 226 (1974).
In addition, a board is not authorized "to admit conditionally for any reason, a contention that falls short of meeting the specificity require-i ments."
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 NRC 460, 466 (1982),
modified on other grounds,
CLI-83-19, 17 NRC 1041 (1983).
The NRC's Rules of Practice do not l
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permit "the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or staff."
Id_., at 468.
Finally, a licensing board has no duty to recast contentions offered by a petitioner to remedy the infirmities of the type ' describeo in Peach Bottom, supra, in order to make inadmissible contentions meet the re-quirements of 10 C.F.R. I 2.714.
Commonwealth Edison Co. (Zion Sta-tion, Units 1 and 2), ALAB-226, 8 AEC 381, 406 (1974). Should a board nevertheless elect to rewrite a p'etitioner's inadmissible contentions so as i
to eliminate the infirmities which render the contentions inadmissible, the scope of the reworded contentions may be made no broader than the bases that were previously provided by the petitioner for the inadmissible con-tentions.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675,15 NRC 1105,1114-16 (1982).
The admissibility of TMIA's proffered contentions must be determined based on these established standards.
B.
Proposed Contentions TMIA's proposed Contention 1 states:
l CONTENTION 1.
Neither the Licensee nor the NRC Staff have (sic) demonstrated that allowing degraded tubes to re-l main in service under the proposed revised plugging criteria will provide reasonable assurance that TMI-1 can operate i
without endangering the public health and safety, because the form and rate of new tube degradation has not been determined.
Contention 1 alleges that there is no reasonable assurance that TMI-1 can operate without endangering the health and safety of the public, be-cause the form and rate of "new tube degradation" has not been deter-mined.
Although TMIA does not state what it means by "new tube
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degradation," the issue of "new tube degradation" has been raised by TMIA previously, in the context of a motion to reopen 'the record in the previous Steam Generator Repair proceeding, where TMIA claimed that corrosion had been reinitiated. 3_/
The Staff assumes that TMIA is using the term consistently with its prior use.
If the Staff's assumption regarding TMIA's use of the term "new tube degradation" is correct, the Staff is of the opinion that the conten-tion raises - an issue within the scope of the proceeding, is adequately specific and is supported by a minimally sufficient basis. The' Staff sup-ports admission of the contention provided that the referenced "new tube degradation" is as indicated above and the contention is limited to the basis asserted.
TMIA's proposed Contention 2 states:
CONTENTION 2.
Neither the Licensee nor the NRC ~ Staff have (sic) demonstrated that allowing degraded tubes to re-
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main in service under the proposed revised plugging criteria will provide reasonable assurance that TMI-1 can operate without endangering the public health and safety, because the testing technique relied upon to define degraded tubes is 3/
Subsequent to the kinetic repair of the steam generator tubes at-l TMI-1, during eddy current testing (ECT) following hot functional tests in 1984, some 327 tubes had indications of greater than 40%
throughwall degradation.
This gave rise to a concern as to whether there was a new corrosion process occurring in the steam generator, or whether.the previous intergranular stress corrosion cracking (IGSCC) was continuing.
Applicant determined that the new ECT indications were the result of intergranular attack (IGA) pitting that occurred at the same time as the IGSCC in 1981, but that was not previously detectable.
The Appeal Board in the Steam Generator Repair proceeding, in response to TMIA's motion to reopen the record, ruled that the asserted "new tube degradation" being identi-fled was due to IGA and was not in fact new degradation, but grain dropout resulting from previously identifie~d-d'egradation.
ALAB-807, 21 NRC 1195,1207.
That ruling does not, however, bear on wheth-er TMIA has raised a litigable' issue for the purpose of admissibility i'
of Contention 1.
. A inaccurate and inconclusive, in light of the particular method of degradation.
Contention 2 asserts that the testing techniques relied on (eddy cur-rent testing) to define degrade 6 tubes is inaccurate and inconclusive in
. light of the "particular method of degradation."
Because of the vague-ness of the wording of the contention, the Staff is uncertain as to what TMIA means by "particular method of degradation" -- whether TMIA is referring to IGSSC, or to IGA, or asserting that another (unspectiled) method of degradation has occurred or is occurring.
Thus, it is not clear whether TMIA is raising a question as to the method of degradation, as well as challenging the testing technique.
In short, this contention, as currently worded, is not sufficiently specific nor supported by partic-ularized bases to give adequate notice of the issues which are to be liti-gated by this contention.
Consequently, the Staff believes Contention 2, as drafted, should be rejected for failure to put the parties on notice as to what will be litigated.
CONTENTION 3.
Neither the Licensee nor the NRC Staff have (sic) demonstrated that allowing degraded tubes to re-main in service under the proposed revised plugging criteria, which could contribute to the frequency of leakage during plant operations, is consistent with the requirements of GDC 32.
GDC 32, " Inspection of Reactor Coolant Pressure Boundary," pro-vides that components of the reactor coolant pressure boundary must be designed to permit 1) inspection and testing of important features and 2) an appropriate material surveillance program for the reactor pressure ves-sel.
TMIA has demonstrated no nexus between the requirements of GDC 32 and the instant proposed revised steam generator tube plugging criteria.
Indeed, the Staff can see no nexus whatsoever between the
GDC 32 requirements and the instant' amendment request, which does not affect existing inspection and surveillance programs.
Thus, Contention 3 should be rejected for' failure' to raise an issue within the scope of this proceeding.
TMIA Contention 4 states:
CONTENTION 4.
Neither the Licensee nor the NRC staff have (sic) demonstrated that allowing degraded tubes to re-main in service under the proposed revised plugging criteria, is consistent with the requirements of GDC 31, in that the criteria does not take into account environmental effects, in-cluding possible environmental corrosion even in the absence of active corrosion mechanisms.
Contention 4 asserts that allowing degraded tubes to remain in ser-vice under the proposed revised plugging criteria has not been shown to be consistent with GDC 31, because the proposed criteria do not take into account environmental effects even if there are no active corrosion mechanisms.
As framed, the contention raises an issue within the scope of the proceeding, is adequately specific and is supported by a minimally suffi-cient basis.
Accordingly, the Staff supports the admission of Contention 4.
TMIA Contention 5 states:
l CONTENTION 5.
Neither the Licensee nor the NRC Staff have (sic) demonstrated that allowing degraded tubes to re-main in service under the proposed revised plugging criteria is consistent with Reg. Guide 1.121, which requires that plugging criteria contain an operational degradation allowance to take into account variations in tube thickness due to possi-ble corrosion.
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Contention 5 alleges that it has not been demonstrated that allowing l
tubes to remain in service under the proposed revised plugging criteria is consistent with Reg. Guide 1.21, which provides that plugging criteria i
c must contain an operational degradation allowance to take into account variations in tube thickness due to possible corrosion.
As framed, the contention raises an issue within the scope of the proceeding, is adequately specific and is supported by a minimally suffi-cient basis.
Accordingly, the Staff supports the admission of Contention 5.
III. CONCLUSION For the reasons discussed at>ove, it is the Staff's view that proposed Contentions 2 and 3 are inadmissible in their present forms and should be rejected.
However, Contentions 1, 4 and 5 raise matters within the scope of the proceeding, are supported with minimally adequate bases, and should be admitted for litigation.
Respectfully submitted, W1 Mary E Wagne l
I Counse for NR Staff Dated at Bethesda, Maryland this 20th day of March,1986 m.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION N NR 24 P3:27 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFIU w 00CKEY ((. b '
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BR c In the Matter of
)
)
METROPOLITAN EDISON COMPANY,
)
)
(Steam Generator Plugging (Three Mile Island Nuclear
)
Criteria)
Station, Unit No.1)
)
i CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO TMIA'S SUPPLEMENT TO PETITION TO INTERVENE" in the above-captioned proceeding have been served on the following by deposit in in the Nuclear Regulatory Commission's internal mail system, or, as indicated by an asterisk, by hand delivery, or, as indicated by a double asterisk, by express mail, this 20th day of March,1986:
l Bruce W. Churchill, Esq.
- Sheldon J. Wolfe, Chairman Administrative Judge Shaw, Pittman, Potts & Trowbridge Atomic Safety & Licensing Board Panel 1800 M Street, NW U.S. Nuclear Regulatory Commission Washington, DC 20036-Washington, DC 20555
- Dr. Oscar H. Paris Atomic Safety & Licensing Board Administrative Judge Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
- Frederick J. Shon Atomic Safety & Licensing Appeal Administrative Judge Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
-Washington, DC 20555 Washington, DC 20555 l
- Joanne Doroshow Docketing & Service Section The Christic Institute Office of the Secretary 1324 North Capitol Street U.S. Nuclear Regulatory Commission r
Washington, DC 20002 Washington, DC 20555
- Louise Bradford 1011 Green Street Harrisburg, PA 17102
- 7 M
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Mary E.
agner
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Counsel r NRC Sieff 4
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