ML20235B427

Response of NRC Staff to Proposed Contentions of Air & Water Pollution Patrol & Rl Anthony.* Board Should Deny Requests That Hearing Be Held in Connection W/Proposed Amend. Certificate of Svc Encl

ML20235B427
Person / Time
Site:	Limerick
Issue date:	09/16/1987
From:	Vogler B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-4430 87-550-03-LA, 87-550-3-LA, OLA, NUDOCS 8709240099
Download: ML20235B427 (14)

Text

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t cw dim E TU th W September 16, 1987

'87 SEP 21 All :05 UNITED STATES OF AMERICA i I

NUCLEAR REGULATORY COMMISSION BEFORE' THE ATOMIC SAFETY AND LICENSING BOARO .:,,

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in the Matter of ) l

) Docket No. 50-352 -O L A l PHILADELPHIA ELECTRIC COMPANY ) (TS lodine) )

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(Limerick Generating Station, ) _( ASLBP No. 87-550-03-LA)

Unit 1) )

RESPONSE OF NRC STAFF TO PROPOSED CONTENTIONS OF AWPP AND R. L. ANTHONY INTRODUCTION ,

On August 21, 1987, in response to the Atomic Safety and Licensing Board's (Board) Order of July 28, 1987, 1 the Air and Water Pollution Patrol (AWPP) filed a supplement 2/ to its petition for leave to intervene and request for a hearing setting forth the contentions it seeks to have litigated in connection with the Licensee's proposed amendment request.

On August 26, 1987, R. L. Anthony (Anthony) filed his contentions in response to the aforementioned Board Order. 3_/ For the reasons set forth below, the contentions submitted by AWPP and Anthony and their

-1/ Philadelphia Electric Company (Limerick Generating Station, Unit 1),

Docket No. 50-352, OLA, (TS lodine), slip op, at 3, July 28,1987.

-2/ AWPP (Romano) Supplement To Opposition To Radioactive lodine Amendment for Limerick Unit 1 Operating License ( N PF-39 )

August 21, 1987.

-3/ R. L. Anthony, Supplement to Petitioner's Response of 7/2/87 to the Board's Notice of Hearing and Order of 7/29/87. August 26, 1987.

l l 8709240099 870916 PDR ADOCK 05000352 PDR; G ,

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respective petitions to intervene and requests for a hearing should be denied.

BACKGROUND On September 27, 1985, the NRC issued Generic Letter No. 85-19, which proposed model Technical Specifications (TS) dealing with concen-trations of radiolodine in a plant's reactor coolant for boiling water reac-tor operations. On August 19, 1986, in response to Generic Letter 85-19, the Phliadelphia Electric Company (Licensee) applied to the NRC for an amendment of the TS for its Limerick Generating Station, Unit 1 (Facility Operating License NPF-39). In its application, the Licensee asked the NRC to amend the Limerick TS's to match the proposed,TS's for radio-iodine in reactor coolant included in Generic Letter No. 85-19.

On August 25, 1986, prior to the publication by the Staff of any notice of its intent to issue the requested amendment or any finding with regard to the no significant hazards consideration, AWPP filed its petition for leave to intervene and its motion for a hearing on the Licensee's pro-posed amendment. On September 4,1986, also prior to the Staff publica-tion of any notice, Anthony filed a petition to intervene and a request for a hearing.

On March 12, 1987, the Staff published in the Federal Register its intent to issue the requested amendment, provided an opportunity to re-quest a hearing and made a proposed determination that the requested amendment involves no significant hazards consideration. EI Subsequent to additional filings by all of the parties setting forth their positions on 3/ 52 Fed. Reg. 7,675, 7,693 (March 12,1987).

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C ' this matter the Board, as noted earlier, in a Memorandum and Order 5/

provisionally granted the petitions to intervene of AWPP and Anthony and directed,. pursuant to 10 C.F.R. 5 2.715a, a special prehearing - confer- )

ence to be . held on September 29, 1987, at Philadelphia, Pennsylvania to-consider the intervention petitions and to determine whether at least one admissable contention has been submitted by each petitioner. 6,/

DISCUSSION A review of the Commission's current rules and regulations on the admissibility of proposed contentions will provide a proper context in which to consider the proposed contentions. The Commission's Rules of

' Practice require that " bases for each contention [be] set forth with rea--

sonable specificity." 10 C.F.R. - 6 2.714(b) . This regulation has been read to require'"a reasonably specific articulation of its rationale - g, why the Applicant's plans fall short of certain safety requirements, or will have a particular detrimental effect on the environment." 1/ The Commission in 'its Catawba opinion determined that interveners'are expect-ed to raise issues as early as possible. 8,/

5/ See, fn.1, supra.

6/ id. , . slip op. at 7-8.

7/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2),

LBP-82-50,15 NRC 566 at 570 (1982).

-8/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2),

CLI-83-19,17 NRC 1041 (1983).

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Under 10 C.F.R. 6 2.714(b) and applicable Commission case law 0I 5 a

petitioner for intervention in a Commission proceeding must file a supple-ment to its petition:

... (w]hich must include a list of the contentions which petitioner seeks to havet istigated in the matter, and basis for each contention set forth with reasonable specificity.

The purpose of the basis requirements of 1,0 C.F.R. 2.714 are (1) to as-sure that the contention in question raises a matter appropriate for litiga-tion in a particular proceeding , EI (2) to establish a sufficient foundation for the contention to warrant further inquiry into the subject matter addressed by the assertion and, (3) to put the other parties su l-

-9/ See, ge.. , Northern States Power Co. (Prairie Island Nuclear Gener-ating Plant, Unit Nos.1 and 2), ALAB-107, 6 AEC 188,194 (1973),

a ff'd , BPI v. Atomic Energy Commission, 502 F.2d 424, '429 (D.C.

E 1974); Duquesne Light Co. (Beaver Valley. Power Station, Unit

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No.1), ALAB-109, 6 AEC 242, 245 (1973)..

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10/ A contention must be rejected where:

(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Comniission's regulatory process or is an attack on ,the regulations; '

(c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought to be; (d) It seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (e) it seeks to raise an issue which is not concrete or iltigable.

Philadelphia Electric Co. (Peach Botton Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 20-21 (1974).

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kN ciently ~ on notice ". . . . so .that _ they will know at least generally ' what-kh, ',..Q'fg;p.

F- they will have to defend against or oppose." Peach Bottom, supra, at U: . . .

20. From . the standpoint of basis, it is unnecessary for ~ the petition to -

detail .the evidence which will be offered in support of each contention. N Furthermore,-in examining the contentions:and the bases thereof, a licensing board should not reach the merits of the contentions. EI .As the Appeal Board instructed in Farley b, in

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asscssing the acceptability of a contention as a basis for granting intervention:

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[T]he intervention board's task is to determine, from 7 scru-tiny of bhat appears within the four corners of the contention 9 -_ as stated, whether (1) the requisite specificity- exists; A' (2) there has been an adequate delineation of the basis for the contention; and (3) the issue sought to be raised is cog-nizable in an individual licensing proceeding. (Footnotes omitted) .

If a contention me'ets these criteria, the contention provides a foundation for admission " irrespective of whether resort to extrinsic evidence might u establish the coritention to be insubstantial." Farley, supra, at 217. b

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11/ $ilssissippi P wer and Light Co. (Grand Gulf Nuclear Station, Units l' afid 2), ALAB-J30, 6 AEC 423, 426 (1973).

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12/ Houston Lighting and Power Company (Allens Creek Nuclear Generat-Trig ~ 5tation, Unit 1), A LA B-590, 11 NRC 542, 548 (1980);

Duk) Power Co. (Amendment to Materials License SNM-1773 - Trans-portation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station), A LAB-528, 9 NRC 146, 151 (1979);

P_each Bottom, supra, at 20; Grand Gulf, supra, at 426.

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13/ Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 i and 2), ALAB-182, 7 AliC 210, 216-217 (1974).

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14/ However, the proposed contention should refer to and address rele-vant documentation available in the public domain, which is relevant 7 (FOOTNOTE CONTINUED ON NEXT PAGE) o . '

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On the other hand, if the issue sought to be introduced is, as here, a l

l generic issue involving a subject of general applicability to a certain class of reactors, a nexus must be established to connect the proffered conten-tions to the amendment in question. EI Thus, it is incumbent upon AWPP and Anthony to set forth contentions and bases therefore with suf-ficient detail and specificity to demonstrate that the issues they seek to ral.ee are admissible and to establish a nexus between the contention being proffered and the proposed amendment.

A. AWPP's Contentions Because AWPP, in its supplement to its petition to intervene, falls to itemize or list its proposed contentions in any manner the Staff is unable to respond specifically to those contentions relied upon by AWPP to sup-port its petition to intervene. EI For this reason alone, AWPP's petition could be denied. Nonetheless, the Staff has reviewed AWPP's Supplement and will respond below to those comments it believes are relevant to this proceedino.

On page 1 of its Supplement, AWPP contends that the proposed amendment raises the amount of radioactive lodine the Licensee can "re-(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) to the plant which has filed an application. See, Cleveland Electric illuminating Company, et al. (Perry Nuclear ~ Power Plant , Units 1 and 2), LBP-81-24,14 NE 175,181-184 (1981) .

3/ Gulf States Utilities (River Bend Station, Units 1 and 2), ALAB-444, 6 NP,C 760 (1977).

-16/ 10 C.F.R. 9 2.714(b) states in pertinent part, that a petitioner for intervention must file a supplement to its petition ". . . which must (FOOTNOTE CONTINUED ON NEXT PAGE)

lease" at any one isolated time or times and that such open ended releases have known adverse effects on humans and animals. This contention is without any basis in fact or law and must be denied. As the Staff's Ge-neric Letter 85-19, September 27, 1985 and its Notice of Consideration of issuance .of Amendment and Proposed No Significant Hazards Consideration EI (NSHC) make clear, the level of iodine activity permitted has not been raised and the amount of radioactive iodine the Licensee can " release" has not been changed. The limit on the specific activity of iodine in the coolant as specified by the current TS 3.4.5 from 0.2 to 4.0 microcurles per gram for no more than 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> and no more than 4.0 microcuries per gram at any time have not been changed by the proposed revision to the TS. What has taken place through the amend-ment process is a proposed change in the cumulative operating time within specified time intervals and revisions in the requirements for reporting occurrences of lodine spiking which take into account the present report-Ing requirements. The changes in reporting requirements are administra-tive in nature since the same level of information will continue to be reported. NSHC at 7. It is also clear that originally the Staff, not the Licensee, suggested the proposed amendment in Generic Letter 85-19.

The Staff concluded that because of the continuing limitations on the Li-censee's operations contained in the TS's and the reporting requirements (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) include a list of the contentions which petitioner seeks to have ilti-gated in the matter, and basis for each contention set forth with reasonable specificity." (emphasis added)

E/ 52 Fed. Reg. 7,675, 7,693 (March 12,1987) .

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. of 10 C.F.R. 65 50.72 and 50.73 adequate assurance is provided that ap-propriate actions will be initiated long before accumulating 800-hours of operation with lodine concentrations within the specified limits. NSHC at 3, 6-7, 8-9. As such, there simply is no nexus between AWPP's alle-gations and the amendment at issue. This contention has no basis in fact and must be dismissed.

Next, AWPP states that allowable limits for radioactive lodine releases were set and agreed upon by the Licensee in consideration of the NRC granting them their license. AWPP Supplement at 2. In essence, AWPP maintains that once allowable limits are set or " agreed upon" they can never be changed. Under this scenario, subsequent improvements in technology resulting in more efficient operations and record keeping could never be implemented by the Staff. This is precisely the situation here, the improved quality of nuclear fuel over the past decade has made it clear that normal coolant iodine activity is well below allowable limits and because the other remaining regulations contain adequate reporting re-quirements on iodine activity, including immediate notification of fuel clad-ding failures, b the Staff determined that reporting requirements on lodine spiking could be amended. AWPP's contentions that the above change in lodine reporting limits should not be implemented because the Licensee had previously agreed to a different limit is without basis. As the Staff has repeatedly point out herein, the iodine limits have not been changed, the reporting requirements have been amended. AWPP's conten-l tion in this regard is without basis and should be denied.

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18/ 10 C.F.R. 50.72(b)(1)(ll).

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l AWPP's contention that the Licensee does not " merit" the amendment

! because of past conduct as exemplified by the " control-room operator-sleeping scandal," Supplement at 2, must also be denied due to a l

complete lack of nexus and basis. AWPP's allegation concerning the

" control-room operator-sleeping scandal" refers to incidents that took place at the Peach Bottom Nuclear Plant. AWPP also contends that the Staff did not take into consideration the TMI accident in considering this amendment. AWPP Supplement at 3. Other than AWPP's bald assertions, there is no indication that the events at the Peach Bottom Nuclear Plant have any nexus or relevancy to the Limerick amendment request or that events at TMi, are at all related to the requested amendment. The in-stant amendment is concerned only with Unit 1 at the Limerick Generating Station . Moreover, the requested amendment does not involve permitting higher radioactive lodine releases than permitted in the Limerick license as alleged. As the Staff has previously noted, the limits on iodine re-l leases in the reactor coolant have not been changed, it is one aspect of the reporting requirements for lodine activity in the reactor coolant that has been changed. In view thereof, AWPP's contention relating to activi-ties at other nuclear plants, i.e. Peach Bottom and TMi and its insistence that the Staff has raised the limits on radioactive iodine releases is with-out any basis in fact and must be denied.

Finally, AWPP's request to Intervene on the sufficiency of the use of potassium iodide as an antidote for radioactive lodine, AWPP Supplement at 3, has no relation to the instant amendment, lacks nexus and basis and should be denied.

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. 1 B. Anthony's Contentions Anthony's first contention relates to the Licensee's activities at the Peach Bottom Nuclear Plant. Anthony maintains that the Peach Bottom  ;

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" deficiencies pervade PECo's management and, therefore, could be expect- j ed in a related form we believe at Limerick -- ." Anthony Supplement-at 1. Anthony concludes that because of these " deficiencies" the re-quested amendment should be denied. M. The Staff _ has already_ re-J sponded to a similar contention proffered by AWPP, see, above, l pages 8-9, and incorporates herein its response to AWPP's contention. ,

l For the reason's set forth above, Anthony's first contention is without any basis and must be denied. , l

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Anthony's second contention simply states that iodine spikes in the {

primary coolant can surge in off-site lodine-131 because there have been

" reported pathways for radioactive steam to penetrate the containment and reach the environment." See, Anthony Supplement, item 2. There is no i basis for this statement and indeed none is offered. No effort is made to identify the " reported pathways" or how or where or when the contain- i

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ment can be penetrated. Moreover, no effort is made to connect the re-quested amendment, which as noted earlier involves a change in reporting requirements, with the allegation of " reported pathways" and containment penetration. Anthony's second contention is without any nexus, support or basis and must be denied.

Anthony's third contention is found in items 3, 4 and 5 of his Sup-I piement. Basically, Anthony maintains that the limits on routine release  !

of radioactive gases from Limerick have been set too high and further that the calculation of distances from the Limerick stacks are inaccurate i

so that the amount of radioactive gases released is distorted and under-stated. Anthony maintains that the proposed amendment will exacerbate an already dangerous condition. The Staff will not repeat here its posi-tion on the purpose and effect of the amendment that concerns a change in reporting requirements and does not address release limits. However, Staff must note that Anthony's arguments concerning ilmits on the release of radioactive gases and distances to plant boundaries are not new. In-deed, Mr. Anthony posed this very same issue to the Atomic Safety and Licensing Board designated to preside over the hearings on the operating license for Limerick. In that proceeding , the Licensing Board denied Anthony's request to reopen the record on the limits on ' routine releases of radioactive gases and the alleged miscalculations of distances to the Limerick plant boundaries. E On appeal, the Appea! Board found that Anthony's arguments concerning limits on routine releases were without safety significance. El Similarly, the Appeal Board found his arguments relating to the calculations of distances to the plant boundary to also be without safety significance. 21/ in sum, the Appeal Board rejected Anthony's arguments. In view thereof, Anthony should not now be per-mitted to resurrect and proffer his previously denied allegations in con-nection with the instant amendment. There is no nexus and no basis for

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this contention and it must be denied.

-19/ Philadelphia Electric Company (Limerick Generating Station, Unit 1),

Memorandum and Order of June 4,1985 (unpub!!shed).  !

20/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13,19 (1986).

,21/ id.

Mr. Anthony's final contention is found in items 5 and 6 of his Sup-plement. In it, Anthony discusses the accident at Chernobyl, U.S.S.R.,

encloses a copy of an article in the April 1987 edition of the New Scientist that concerns the radioactive fallout from the accident at Chernobyl and concludes that the proposed amendment for Limerick should not be permit-ted. Simply stated, there is no nexus between Anthony's proffered con-tention and the proposed amendment. Indeed, no effort is even attempted to relate the accident at Chernobyl and the change in reporting require-ments set forth in the requested amendment. Staff submits the contention must be denied.

IV. CONCLUSION As neither AWPP or Anthony have submitted a contention supported by a basis and set forth with reasonable specificity, the Licensing Board should deny their requests that a hearing be held in connection with the proposed amendment.

Respectfully sutmltted,

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Yr 05~ .

Benjamin H. Vogler Senior Supervisory Trial Attorney Deted at Bethesda, Maryland trils 16th day of SepteTber,1987

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 SEP 21 A11 :05 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD cm ~~

BOR 1 5

in the Matter of )

) Docket No. 50-352 PHILADELPfil A ELECTRIC COMPANY ) (TS iodine)

)

(L.imerick Generating Station, ) (ASLBP No. 87-550-03-LA )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF NRC STAFF TO PROPOSED CONTENTIONS OF AWPP AND R. L. ANTHONY" !n the above-captioned proceeding have been served on the following by deposit in the United States mall, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mall system, this 16th day of September, 1987 :

Sheldon J. Wolfe, Chairman Mr. Edward G. Bauer, Jr.

Administrative Judge Vice President & General Counsel Atomic Safeiy and Licensing Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory Commission 2301 Market Street Washington, D.C. 20555* Philadelphia, PA 19101 Peter A. Morris Troy B. Conner, Jr. , Esq.

Administrative Judge Mark J. Wetterhahn, Esq.

Atomic Safety and Licensing Board Panel Conner and Wetterhahn U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20555* Washington, D.C. 20006 Richard F. Cole Mr. Frank R. Romano Administrative Judge Chairman Atomic Safety and Licensing Board Panel Air and Water Pollution Patrol U.S. Nuclear Regulatory Commission 61 Forest Avenue Washington, D.C. 20555* Ambler, PA 19002 Robert L. Anthony Gene Kelly Friends of the Earth of the Senior Resident inspector Delaware Valley U.S. Nuclear Regulatory Commission 103 Vernon Lane, Box 186 P.O. Box 47 Moylan, PA 19065 Sanatoga, PA 19464 l

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. l Atomic Safety and Licensing Jay Gutierrez J' i Board Panet Regional Counsel U.S. Nuclear Regulatory Commission USNRC, Region i

! Washington, D.C. 20555* 631 Park Avenue King of Prussia, PA 19406 Atomic Safety and Licensing Appeal i Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555* f (Benjamin H. Vogler ~

Senior Supervisory Trial Attorney