ML20205F931
| ML20205F931 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/21/1988 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7367 OL-1, NUDOCS 8810280161 | |
| Download: ML20205F931 (13) | |
Text
' %d7 000KETED Udh?C October 31,8B [1988T 26 PS :35 tri-UNITED STATES OF AMERICA trg.
NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY
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Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, at al.
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50-444-OL-1
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(Seabrook Station, Units 1
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(Onsite Emergency and 2)
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Planning and Safety
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Issues)
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ON APPEAL FROM AN ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD ISSUED AUGUST 8, 1988 APPLICANTS' BRIEF STATEMENT OF THE CASE In an unpublished order of June 29, 1988, the Commission directed the Atomic Safety and Licensing Board to address a thrice-remanded (from this Appeal Board) issue as to the environmental qualification of certain coaxial cable, and "to determine whether the remanded coaxial cable issue need be resolved before low-power operation."
In response to that 8010200161 001021 PDR ADOCK 0500 3
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direction, the Licensing Board, on July 1, 1988, issued a scheduling order directing that the parties file briefs on the question, In response to that order, the Applicants made a filing which consisted of a memorandumi and five affidavits.2 The Memorandum began by pointing out that the course of the proceeding to that tire had resulted in the "Coaxial Cable" issue consisting of two issues:
1.
Whether RG-58 cable is, in fact, environmentally qualified?
2.
Whether, in the twelve cases where RG-59 cable has been substituted for RG-58 cable, the RG-59 cable is a technically acceptable substicute for the RG-58?
Having pointed this out, Applicants then went on to address, on the basis of the Affidavits filed with the Memorandum, the question of whether either of these issues were required to be resolved before icw power operation.
With respect to the issue of the technical compatibility of the RG-59 cable where it had been used to replace RG-58, it was pointed out:
(1) i that only certain systems and instrumentation are required to achieve safe shutdown of the plant and if those systems and 1
Acolicants' Memorandum in Succort of Permittina Low Power Operation Prior to Resolution of "Coaxial Cab _le" Issue (July 22, 1988).
2 Affidavits of Richard Bergeron, Bruce E.
- Bouchel, Thomas W.
Glowacky, Randy C. Jamison, and Peter S.
Littlefield.
i m2m 3
J
instrumentation (referret to collectively as the "safe shutdown instrumentation" (SSI)) are available, no dose requiring off-site protective actions could result to the public in the event of a design basis accident during low power operation; (2) that none of the 126 coaxial cables at issue, including the RG-59 cables, are attached to any device included in the SSI; and, therefore, (3) whether the RG-59 cables are technically compatible with the tasks assigned them is of no moment to low power operation.3 As to the issue of the Environmental Qualification of the RG-58 Cable, it was pointed out that an analysis had shown that even if one assumed the existence of a hypothetical RG-58 Cable in a raceway located in a harsh environment, and one further assumed its failure would cause the failure of all safety related cable in the same raceway, the SSI still would not be compromised.4 In addition, the Applicants pointed out several other factors which militate against the need to resolve the coaxial cable issue before low power testing including (1) the new and unaged condition of the cable at this time, (2) the fact that the aging and environmental factors are r.uch less at low power than full power operation, 3
Aeolicants' Memorandum, supra n.
1 at 3-5; Beuchel M. 116-10; Littlefigld M., p_assim.
4 Aeolicants' Memorandum, suora n.
1 at 5-6; Beuchel
&Lf. 1111-15 O
(3) the fact that the cable had now been tested in fact and found environmentally qualified, and (4) the fact that tests had shown that if the RG-58 cable shorted to shield, at currents well above anything they would see at low power, no damage to adjacent cables would occur, NECNP filed a response to the Licensing Board's Order which consisted solely of a legal argument to che effect that there is no authority under the Atomic Energy Act or the Regulations to authorize any low power operation so long as there is any safety issue outstanding.5 The Staff weighed in with a response stating that the issues involved may or may not be relevant to low power operation, the Staff not having had time to resolve that question to their own satisfaction as cf the date the filing was made, but suggesting that there was ample justification in the record for resolving the outstanding iarues in favor i
of the Applicants, and suggesting that the Licensing Board "should issue an order in accordance with the views expressed in (the Staff's] response.n6 In response to all of the foregoing, the Licensing Board, on August 8, 1988, issued the decision here under 5
New Encland Coalition on Nuclear Pollution's Brief in QRgosition tq_ Authorization of Low Power Operation at Seabrook Nuclpir Power Plant (July 21, 1988), cassim.
6 NEf Staff resconse to Licensina Board Order of July 1.
l';11 (July 27, 1988), cassim, and at 14. _ _ _ _ _ _ _.. _ _ _. _ _ _ _ _ _ _
<0 e
review.7 After laying out the background of the case, the position taken by the Applicants, and the Board's conclusion that the coaxial cable issue was not relevant to low power operations,8 the Licensing Board proceeded to reject the NECNP arguments as having been previously rejected by itself and this Appeal Board.9 The Licensing Board then addressed the position of the Staff, expressing its disagreement with the proposition that the coaxial cable issue could be relevant to low power operations and also rejecting the Staff position that the Licensing Board could go forward, on the then extant record, to make the reasonable assurance findings required on the ground that such a course of action would be contrary to prior rulings of this Appeal Board and the Licensing Board.10 Thereafter, the Licensing Board set forth an order holding that the coaxial cable issue was not relevant to low power operation because the safety concerns encompassed thereby would not impact upon public health and safety during low power operation.
The Licensing Board went on to say that it could not give effect to its renewed 7
Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-88-20, __ NRC (Aug.
8, 1988), hereafter cited as LBP-88-20 and to the slip opinion.
8 LBP-88-20 at 2-8.
9 LBP-88-20 at 9-10.
10 LBP-88-20 at 10-13.
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authorization of low power operation pending resolution of the pending prompt notification (siren) issue.
In addition, the Licensing Board stated that, although it had foi td the coaxial cable issue not to be relevant to low power operation, because the Staff had not been able to evaluate the Applicants' position which the Board had adopted, "the Staff shall provide to the Commission, should the Commission so desire, its evaluation of the Applicants' July 22, 1988 position prior to issuance of the low power license."ll he Commission, as of this writing, has made no such request.
On August 24, 1988, NECNP filed its Notice of Appeal.
On September 23, 1988, NECNP filed its Brief in support of its appeal.12 Therein NECNP reargues its legal position that no low power operation can be authorized prior to the resolution of all safety issues.13 NECNP then goes on to raise certain other arguments never raiPed by NECNP with the Licensing Board to the effect that (1) the Applicants have not shown that operators might not be misled if some or i.ll of the RG-58 cable failed,14 and (2) that Applicants may be 11 LBP-88-20 at 13-14 temphasis supplied).
12 New Encland Coalition on Nuclear Pollution's Brief in Suecort of Acceal of Licensina Board's Memorandum and Order Dated Auoust 8.
1988 (Sept. 23, 1988) (hereafter cited as "NECNP gr."
13 NECNP Br., at 3-6.
14 NECNP Br. at 9-10.
wrong on cable routing and therefore it may be that not all of the requisite cablec have been replaced by RG-59.15 It is in the foregoing posture that this matter comes before this Appeal Board.
ARGUMENT I.
The Legal Argument as to the Authority to Permit Low Power Testing Should be Rejected.
NECNP's argument that all contested safety issues must be resolved before low power operation is permitted has already been rejected by this Appeal Board.16 Therefore, no further discussion herein is necessary.
II.
The Balance of NECNP's Argument, not Having Been Raised with the Licensing Board, Should not now be Heard for the First Time on Appeal.
As noted earlier, NECNP made no substantive argument to the Licensing Board other than the legal argument that no operation at low power can be permitted until all safety contentions are involved.
In its filing before the Licensing Board, NECNP did say:
j 15 NECNP RI. at 10-11.
It is not entirely clear if l
this latter argument is a separate stand-alone argument or simply another basis for saying that it has not been demonstrated that operators would not be misled.
See the last sentence of the only full paragraph on p. 11 of NECNP Hr.
16 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), A LA B-8 9 2, 27 NRC 485 (: 7*8).
I a
"The question of whether an operating license applicant meets the environmental qualification requirements or 'any other safety reouirements is inherently
' relevant' to the safe operation of the plant."17 However, this hardly is an argument or demonstration that the particular coaxial cable issue is relevant to low power operation at Seabrook.
In its brief on Appeal, NECNP now seeks to raise particularized arguments as to why the coaxial cable issue is relevant to low power operation at Seabrook.
NECNP should be foreclosed from doing so.
Arguments not made to the Licensing Board may not be raised by a party for the first time on Appeal.18 III. In any Event, the Nowly Raised Arguments are Without Merit NECNP starts its argument from an erroneous premise, namely that because the Staff says that it was unable to determine as of the time it made its filing whether the issue was relevant to low power operation, the Licensing Board should have forsworn making such a finding.
If it is one principle that has long been ingrained in the adjudicatory 17 NECNP Memorandum, supra n. 5 at 3.
18 E.g.,
Jhiladelchia Electric Co. (Limerick Generating Station, Units 1 and 2), A LAB-8 4 5, 24 NRC 220, 235 (1986);
Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), A LAB-8 4 5, 23 NRC 479, 496 (1986); Carolina Power &
Licht Co. (Shearon Harris nuclear Power Plant), A LAB-8 5 6, 24 NRC 802, 812 (1986); Duke Power Co. (Catawba Nuclear Station, units 1 and 2), A LAB-813, 22 NRC 59, 82-83 (1985).
process of this agency, and much heralded by intervenors, it is that the Staff enjoys no special status in litigated matters by virtue of its place in the commission hierarchy.19 In any event, LS.e Staff did not take the position that the issues were, in fact, relevant; rather, the Staff simply advised the Board that absent a fuller opportunity to examine the Applicants' filing, it was unable to take a position.
The Licensing Board did not have the same difficulty.
Rather, in light of the undisputed facts presented in the Applicants' Affidavits which showed that the SSI simply could not be compromised by failure of an RG-58 cable or technical incompatibility of the RG-59, the Licensing Board correctly concluded that the coaxial cable issue was not relevant to low power operation.
NECNP attempts to stitch together an argument that operators could be misled as the result of an RG-58 Cable failure on the theory that even though the SSI was not directly effected, other systems which the operators might be used to relying on may be effected and they would be misled as a result.
That is an argument that the operators du not
- 1 19 Consolidated Edison Co. of N.Y.
(Indian Point Station, Units 1, 2 and 3), A LA B-3 04, 3 NRC 1, 6 (1976);
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), A LAB-2 68, 1 NRC 383, 399 (1975).
But cf.,
Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-76-17, 4 NRC 4 51, 462 (1976).
i 1
-,.c
[
.1.
'. f' NM ry
< ~r how to do..-ir job, and no contention of that nature p;.
Ta ins, unres *. ad in this case.
TPo entirs NECNF argument is an exercise in speculation fa'c;.sy.
IP 6:1ould be rejected.
.i j
I CONCLUSION arder of the Licensing Board should be affirmed.
Respectfully submitted,
,ps: '
e'. I n_._
Thomas G.
Dignan, Jr.
Deborah S.
Steenland Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 counsol for Appilcants l
l l
1
( Me Uii UM CERTIFICATE OF SERVICE 88 OCT 26 P5 :38 I,
Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on October 21,.1988, I made service of the within document by ma$lingscopies'i thereof, postage prepaid to:
A Me Alan S.
Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission commission Washington, DC 20555 Washington, DC 20555 Thomas S. Moore Mr. Richard R.
Donovan Atomic Safety and Licensing Federal Emergency Management Appeal Panel Agency U.S.
Nuclear Regulatory Federal Regional Center Commission 130 228th Street, S.W.
Washingto", DC 20555 Bothell, WA 98021-9796 Administrative Judge Sheldon J.
Robert Carrigg, Chairman Wolfe, Esq., Chairman.
Board of Selectmen Atomic Safety and Licensing Town office Board Panel Atlantic Avenue U.S.
Nuclear Regulatory North Hampton, NH 03861 Commission Washington, DC 20555 Judge Emmeth A.
Luebke Diane curran, Esquire Atomic Safety and Licensing Andrea C.
Ferster, Esquire Board Panel Harmon & Weiss 5500 Friendship Boulevard Suite 430 Apartment 1923N 2001 S Street, N.W.
Chevy Chase, MD 20815 Washington, DC 20009 Dr. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquiro U.S. Nuclear Regulatory Assistant Attorney General Commission office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 Adjudicatory File Sherwin E. Turk, Esquire i
Atomic Safety and Licensing office of the Executive Legal Board Panel Docket (2 copies)
Director U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission i
Washington, DC 20555 Washington, DC 20555 i
i e
1 Atomic Safety and Licensing Robert A.
Backus, Esquire Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr.
J.
P.
Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney 25 Maplewood Avenue General
?.O.
Box 360 One Ashburton Place, 19th Fir.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J.
Humphrey R. Scott Hill-Whilton, Esquire U.S.
Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attn:
Tom Burack) 79 State Street Newburypore MA 01950 Senator Gordon J. Humphrey One Eagle Square, Suite 507 Concord, NH 03301 (Attn:
Herb Boynton)
Mr. Thomas F. Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquiro Charles P. Graham, Esquire office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street 1
Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 9
Gary W. Holmes, Esquire Richard A.
Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 Judith H. Mizner, Esquire 79 State Street, 2nd Floor Newburyport, MA 01950
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