ML20236C239

NRC Staff Response to Amended Request for Hearing & Petition for Leave to Intervene of Ctr for Nuclear Responsibility & J Lorion.* Contentions 1 & 2 Should Be Rejected as Matters in Controversy in Proceeding.Certificate of Svc Encl

ML20236C239
Person / Time
Site:	Turkey Point
Issue date:	03/09/1989
From:	Johari Moore NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#189-8271 OLA-4, NUDOCS 8903220039
Download: ML20236C239 (14)

Text

,. 82.9I MAR 0 919%ggg7tg umc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'89 HAR 13 A10:48 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD . , .

In the Matter of FLORIDA POWER AND LIGHT ) Docket Nos. 50-250 OLA-4 COMPANY 50-251 OLA-4 (Turkey Point Plant, Units 3 and 4) ) (P/T Limits)

NRC STAFF'S RESPONSE TO THE AMENDED REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE OF THE CENTER FOR NUCLEAR RESPONSIBILITY AND J0ETTE LORION I. INTRODUCTION On February 17, 1989, Petitioners, Center for Nuclear Responsibility and Joette Lorion (Petitioners), filed an amended request for hearing and petition for leave to intervene in this license amendment proceeding.

" Petitioners' Amended Request for Hearing and Petition for Leave to Intervene" (February 17, 1989) [ hereinafter, Amended Petition]. As part of the amended petition, Petitioners proposed three contentions as matters to be placed in controversy in this proceeding. Amended Petition at 5-12.

For the reasons set forth below, the Staff of the Nuclear Regulatory Commission (Staff) submits that Contentions 1 and 2 should not be admitted as matters in controversy in this proceeding. The Staff does not object l

to the admission of Contention 3, limited as discussed in Section III.D.

1 below. Since Petitioners have proposed a valid contention, their request for hearing and petition for leave to intervene should be granted.

8903220039 890309 PDR ADOCK 0500 0 7

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i II. BACKGROUND On September 21, 1988 Florida Power and Light Company, the Licensee 1

l of the Turkey Point Units 3 and 4 facilities (Licensee), filed an application for amendments to the licenses for both Turkey Point units.

l These requested amendments would change the Turkey Point technical specifications to incorporate revised pressure / temperature (P/T) limits for each unit. On October 19,1988, the Commission published a notice in the Federal Register describing the proposed amendments, and setting forth the Staff's proposed no significant hazards determination. " Florida Power and Light Company, Docket Nos. $0-250 and 50-251, Turkey Point Plant Units 3 and 4, Dade County, Florida", 53 Fed. R_eg. 40981,40988(October 19, 1988). In response to that notice, Petitioners filed a timely request for hearing and petition for leave to intervene. " Request for Hearing and Petition for leave to Intervene" (November 17,1988).

Both the Staff and the Licensee responded to the petition. "NRC Staff's Response to Request for Hearing and Petition for Leave to Intervene of the Center for Nuclear Responsibility and Joette Lorion" (December 7,1988)[hereinafterStaffResponse];" Licensee'sResponseto Request for a Hearing and Petition for Leave to Intervene with Respect to License Amendments for Pressure / Temperature Limits" (December 2,1988).

The Staff stated that both the Center for Nuclear Responsibility and Joette Lorion had established the requisite standing to intervene and had identified aspects of the proceeding about which they wished to intervene, but that each petitioner was required to submit at least one valid contention before their petition could be granted. See Staff Response at 1. The Licensee agreed. Licensae's Response to Request for a Hearing l

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l, and Petition For Leave to Intervene with Respect to License Amendments for Pressure /TemperatureLimits"(December 1,1988)[hereinafterLicensee Response].

By Order of January 19, 1989, the Atomic Safety and Licensing Board (Licensing Board) designated to preside over this proceeding scheduled a prehearing conference in this matter for March 21, 1989, and required Petitioners to submit any amendments to their petition by February 13, 1989. Order, January 19, 1989 at 1-2. The Licensing Board also set forth 1 the dates by which the Licensee and Staff were required to respond to the amended petitions. .I_d. at 2. Petitioners sought and were granted an  ;

extension of time until February 17, 1989, to file their amended petition.

As stated above, Petitioners have proposed three contentions for litigation in this proceeding. The Staff's response to each of the proposed contentions is set forth below.

i III. ARGUMENT '

A. Standards for Admissibility of Contentions A Licensing Board does not have plenary jurisdiction. Licensing j Boards are delegates of the Comission, and thus, can only consider matters which the Comission comits to them. Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985). The

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Comission's notice of hearing is the means by which the Comission identifies the subject matter of the proceeding. M. The Licensing Board l can neither enlarge nor contract the jurisdiction given to it by the Com-mission. M . In a license amendment proceeding, a contention must raise an issue fairly within the scope of the application for the amendment as P

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. 1 outlined by the Commission's notice of hearing. See Commonwealth Edison l l

Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 426 (1980); I Wisconsin Electric Company (Point Beach Nuclear Plant, Units 1 and 2).

! ALAB-739, 18 NRC 335, 339 (1983); Indiana Public Service Company (Marble HillNuclearGeneratingStation),ALAB-316,3NRC167,170-71(1976).

In addition, pursuant to 10 C.F.R. 6 2.714(b), a petitioner is required to file "a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity." 10 C.F.R. 6 2.714(b). The purposes of the basis requirement are: 1) to help insure that the hearing process is not improperly invoked; for example, through an attempt to attack statutory provisions or the Commission's regulations; 2) to assure that the other parties are put on notice so that they know, at least generally, what they must defend against; 3) to assure that the proposed issues are proper for adjudication in the particular proceeding; 4) to assure that the 1 contentions are applicable to the facility in question; and 5) to assure l that there is sufficient foundation for the contentions to warrant further exploration. A proffered contention must be rejected where: I (1) it constitutes an attack on applicable statutory requirements; (2) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (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 adjudication 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.

Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). General Public Utilities Corp.

(Three Mile Island Nuclear Station, Unit 1), LBP-86-10, 23 NRC 283, 285 (1986).

At this stage of the proceeding, petitioners need to identify only the reascas "(i.e., the basis)" for each contention. Houston Lighting andPowerCo.(AllensCreekNuclearGeneratingStation, 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 & Light Co. (Grand Gulf Nuclear Station, Units l'and 2),

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ALAB-130, 6 AEC 423, 426 (1973). Accordingly, in examining contentions and the bases for those contentions, a licensing board may not reach the merits of contentions. Carolina Power & Light Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant),

ALAB-837,23NRC525,541(1986); Peach Bottom, supra, 8 AEC at 20.

Nevertheless, the bases for contentions must be sufficiently detailed and specific: (a) to demonstrate that the issues raised are admissible and further inquiry into the matter is warranted; and (b) to put the parties on notice as to what they will have to defend against or oppose.

Finally, a contention which seeks to challenge an issue previously considered by the NRC in a licensing proceeding which is not impacted by the proposed amendment must be rejected. See Portland General Electric Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 745 (1978), aff'd ALAB-534, 9 NRC 287 (1979). Even though not litigated in that prior  !

proceeding, contentions have been rejected where the matter was considered in a safety evaluation related to the issuance of an operating license.

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See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant,  !

Units 3and4),LBP-85-36,22NRC590,598-99(1985).

B. ' Contention 1 Contention 1 states: -

That.the Nuclear Regulatory Commission Staff's Final

Determination of No Significant-Hazards Consideration, issued I on January 10, 1989 in support of license amendment nos.134 and 128 issued to allow FPL to revise the pressure / temperature limits for Turkey Point Nuclear units 3 and 4 respectively, is based on incomplete, faulty and non-conservative data, is in error, and should be reviewed by this' Atomic Safety and Licensing Board in order to protect the public health and safety from a loss of pressure vessel integrity and subsequent meltdown.

Amended Petition at 5. This proposed contention challenges the adequacy of the Staff's final no significant hazards consideration determination.

Amended Petition at 5. The Staff took a position on this matter in response to Petitioners' original request for hearing. Staff Response at 9-11. The Licensing Board pointed out in its Order of January 19, 1989, that questions concerning the Staff's final no significant hazards finding are beyond its jurisdiction. TheBoardstated"...[A]bsentextraordinary circumstances, the Board will not hear arguments related to the NRC Staff's 'no significant hazards' finding, a matter beyond the Board's jurisdiction." Order, January 19, 1989, at 2. The Board's decision is consistent with Comission regulations and case law. See 10 C.F.R. 9 50.58(b)(6) (1988); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 4 (1986), rev'd in part on other grounds, San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 (9th Cir.1986); Florida Power & Light Co. (St. Lucie Nuclear Power o

Plant, Unit 1),LBP-88-10A,27NRC452,456-57(1988); Vermont Yankee

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- 1 Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 )

NRC 838, 844 (1987).

Contention 1 is yet another attempt to challenge the Staff's final no i

significant hazards findings, despite the Board's Order. Petitioners have not alleged any extraordinary circumstances which would be sufficient even ,

to allow them to present arguments concerning the admissibility of this contention. Since the Licensing Board lacks jurisdiction to consider' questions concerning the Staff's final no significant hazards finding, Contention I should not be admitted as a matter in controversy in this proceeding.

C. Contention 2 Contention 2 states:

That the revised temperature / pressure limits that have been set for Turkey Point Unit 4 are non-conservative and will cause that reactor unit to exceed the requirements of General Design Criterion 31 of Appendix A to 10 CFR Part 50, which requires that the reactor coolant pressure boundary be designed with a j sufficient margin to ensure that, when stressed under operat-ing, maintenance, testing, and postulated accident conditions, (1) the boundary behaves in a non-brittle manner and (2) the probability of a rapidly propagating fracture is minimized.

Petitioners contend that the new pressure / temperature limits could cause the reactor vessel to exceed these requirements because the Licensee has based its calculation of the predicted RTNDT for Unit 4 partly on surveillance capsule V test results

! from Turkey Point Unit 3 rather than predicting the RTNOT for Unit 4 based on Unit 4 capsule V surveillance capsule data--a practice which is not scientific, not valid, and could cause the Unit 4 reactor to behave in a brittle manner which would make the chances of a pressure vessel failure and resultant meltdown more likely. Petitioners contend that predictions of

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RTNDT and pressure / temperature limits derived from the shift in nil-ductility transfer should be based only on plant-specific Unit 4 data, especially in light of the fact that the only tests'ever performed on Unit 4 weld specimens demonstrated that the weld material in the Unit 4 vessel was 30% more brittle than that of Unit 3. Because Unit 4's weld material is more ,

embrittled, Petitioners contend that the FPL Integrated  !

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Surveillance program does not meet the Requirements of 10 CFR Appendix G Part V.A and V.B. and 10 CFR Appendix.H, including A)pendix H Part IIC and IIIB. Finally, Petitioners contend

'tlat the surveillance capsule V for Unit 4 should be tested to

> establish the new pressure / temperature limits and should the testing indicatt that the RTNDT for Unit 4 has passed the 300-degree Fahrenheit screening criterion set by the NRC, Unit 4 should be shut down until it is' demonstrated that the Unit 4 reactor pressure vessel can maintain its integrity beyond this limit.

Amended Petition at 7-8.

The basis for this contention is a letter written by Dr. George Sih of Lehigh University. Amended Petition at 9-10. Dr. Sih's letter sets forth the reasons why he believes the use of data from an integrated surveillance program is inappropriate. Dr. Sih claims that it would be unjustified to use any Unit 3 data to predict the behavior of Unit 4 unless certain parameters were exactly the same. Amended Petition at 9-10. i This contention in its subparts, and the basis for this contention, challenge the concept of an integrated surveillance program. As stated l above, Petitioners contend that only Unit 4 plant-specific data can be

. l used u predict RTNDT'and pressure / temperature limits derived from the shift in nil-ductility transfer. Petitioners also contend that the integrated surveillance program does not meet the requirements of 10 j C.F.R. Part 50, Appendix G. Finally, they contend that a specific Unit 4 capsule must be tested to make P/T limit predictions for Unit 4. Amended Petition at 7-8. These parts of the contention constitute a challenge to the regulations, and should not be admitted as matters in controversy in this proceeding.

Appendix H to 10 C.F.R. Part 50 requires the establishment of  !

materials surveillance programs to monitor beltline materials for fracture l i

1 toughness. 10 C.F.R. Part 50, Appendix H, Paragraph I. Pursuant to this !

appendix, the Commission permits the use of an integrated surveillance program for reactors with similar design and operating features.

10 C.F.R. Part 50, Appendix H, Paragraph II.C. A challenge to the concept of integrated surveillance is, thus, a challenge to Appendix H to 10 C.F.R. Part 50. Such challenges may be proffered only by satisfying the standard of 10 C.F.R. 6 2.758 of the Commission's regulations.

See also, Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 544 (1986). Contention 2 does not meet these standards.

This contention is also inadmissible in its entirety on the ground that the subject of the adequacy or appropriateness of the Turkey Point j integrated surveillance program is beyond the scope of this license amendment. The integrated surveillance program for Turkey Point was  !

approved by License Amendments nos. 112 and 106, issued on April 22, 1985.

A notice of consideration of issuance of the requested amendments was published in the Federal Register, and Petitioners did not seek to intervene with respect to these amendments. " Florida Power and Light Co.;

Consideration of Issuance of Amendments to Facility Operating Licenses and Proposed No Significant Hazards Consideration Determination and  !

Opportunity for Hearing," 50 Fed. Reg.

e 9919 (March 12, 1985). The present amendment requests do not contain any request for changes to the integrated surveillance program. Therefore, the parts of the contention which allege the program does not comply with the Connission's regulations and which allege that Capsule V from Unit 4 should be tested, are beyond

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.thescopeofthisproceeding.1/ Therefore, this subject is not appropriate for litigation in this proceeding.

l Finally, Petitioners contend that if Capsule V is tested, and if it shows that the welds do not meet a 300DGF screening criterion, the unit l should be shut down. Amended Petition at 8. This screening criterion is 1

l not contained in Appendix G to 10 C.F.R. Part 50, but rather in 10 C.F.R.  ;

5 50.61 of the Commission's regulations. That regulation does not concern the calculation of P/T limits, but rather concerns the screening criteria for pressurized thermal shock (PTS). The subject of PTS is not the  ;

subject of this license amendment. Therefore, this subpart of the contention is beyond the scope of the proceeding and should not be admitted as a matter in controversy in this proceeding. Petitioners have failed to show any nexus between the licensing action being taken and the question of whether or not welds meet the PTS screening criteria.  ;

i Therefore, questions as to whether the PTS screening criteria are met <

should not be admitted as matters in controversy in this proceeding.

D. Contention 3 Contention 3 states:

That the revised pressure / temperature limits that have been set for Units 3 and 4 are non-conservative and will not meet the requirements of General Design Criterion 31 of Appendix A to 10 CFR Part 50 which requires that the reactor coolant 3ressure boundary be designed with sufficient margin to ensure tlat, when stressed under operating, maintenance, testing, and postulated accident conditions, (1) the boundary behaves in a non-brittle manner, and (2) the probability of a rapidly 1/ As part of the approval of the integrated surveillance program, the Staff approved a change in the schedule of withdrawal of Capsule V from Unit 4.

I propagating fracture is minimized. Petitioners contend that the sufficient safety margin required by GDC 31 does not exist because the P/T limits for Units 3 and 4 were not based on the most limiting value of RTNDT as required by 10 CFR Part 50 Appendix G and H, for reactor vessel welds because the percentage of copper that was used in the RTNDT calculation is non-conservative in that it is lower than the percentage of copper that was used in previous surveillance test reports and lower than the percentage of copper quoted in many of the earlier FPL documents. Petitioners contend that the use of this non-conservative estimate of copper content means that the adjusted RTNDT is unrealistically low and that the current revised P/T limits are not restrictive enough to ensure that an adequate margin of safety against brittle fracture of the reactor vessel exists. This increases the possibility that the reactor vesses [ sic] for Unit 4 will behave in a brittle manner resulting in a fracture of the vessel and subsequent meltdown of the reactor core.

Petitioners further contend that if a more conservative and  !

accurate estimate of copper content was used to calculata the RTNDT, the P/T limits would be more restrictive and that in  !

fact, there is a possibility that it could be discovered that

• the NRC screening criterion of 300-degree Farenheit has been reeched and the Turkey Point Units 3 and 4 would have to be shut down because they do not meet the fracture toughness requirement of 10 CFR Part 50 Appendix G.

Amended Petition at 10-11.

The Staff does not object to the contention insofar as it challenges the percentage of copper used in the calculation of RT NDT for purposes of arriving at revised P/T limits. However, that portion of the contention which questions the effect of the percentage of copper used on the ability of Turkey Point materials to meet the screening criteria of 10 C.F.R. 9 50.61 should be rejected. This portion of the contention relates to pressurized thermal shock, which is beyond the scope of this license f

amendment.

In addition, in the basis for this contention, Petitioners make reference to the question of whether the upper shelf energy meets the requirements of 10 C.F.R. Part 50, Appendix G. The Petitioners have

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failed to establish a nexus between upper shelf energy and the revision of P/T limits. Therefore, this subject is beyond the scope of the current licensing action. If Contention 3 is admitted, it should, be limited only to the question of whether the correct percentage of copper was used in predicting the RT NDT from which the revised P/T limits were derived.

IV. CONCLUSION For the reasons set forth above, Contentions 1 and 2 should be rejected as matters in controversy in the proceeding. The Staff has no objection to the admission of Contention 3 limited as described in Section l III.0, supra. Since Petitioners have proffered a valid contention, their request for a hearing and petition for leave to intervene should be granted.

Respectfully submitted, L3 UfLLLD> E AA wtCL2-Janice E. Moore Counsel for NRC Staff Dated at Rockville, Maryland this 9th day of March, 1989

• MAf3M;Y39 uma UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFF t . . . , , ,

In the Matter of Docket Nos. 50-250 M4Q'[' k U ,

50-251 OI.A-4 FLORIDA POWER AND LIGHT COMPANY (Turkey Point Plant, Units 3 and 4) (P/TLimits)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO THE AMENDED REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE OF THE CENTER FOR NUCLEAR RESPONSIBILITY AND J0ETTE LORION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 9th day of March,1989:

B. Paul Cotter, Jr., Chairman

• Richard J. Goddard, Esq.*

Administrative Judge Regional Counsel Atomic Safety and Licensing Board USNRC, Region II U.S. Nuclear Regulatory Commission 101 Marietta St., N.W., Suite 2900 Washington, D.C. 20555 Atlanta, GA 30303 Glenn 0. Bright

• Atomic Safety and Licensing Board Administrative Judge Panel (1)

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Jerry Harbour

• Appeal Panel (5)*

Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section*

Office of the Secretary Steven P. Frantz, Esq. U.S. Nuclear Regulatory Commission '

Harold F. Reis, Esq. Washington, D.C. 20555 Newman & Holtzinger, P.C.

1615 L. Street, N.W., Suite 1000 Joette Lorion Washington, D.C. 20036 7269 SW 54th Avenue Miami, FL 33143 John T. Butler, Esq.

Steel, Hector & Davis Center for Nuclear Responsibility 4000 Southeast Financial Center 7210 Red Road #217 Miami, FL. 33131-2398 Miami, FL 33141

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Adjudicatory File-(2)*  !

Atomic Safety and Licensing  ;

Board U.S. Nuclear Regulatory Commission i Washington, D.C. 20555 T W M Q_ N (TYW .

Janice E. Moore Counsel for NRC Staff 1

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