ML20236U558

Northeast Nuclear Energy Co Answer to Proposed Contentions Re Recirculation Spray Sys.* Proposed Contentions Should Be Rejected & Proceeding Terminated.W/Certificate of Svc

ML20236U558
Person / Time
Site:	Millstone
Issue date:	07/27/1998
From:	Repka D NORTHEAST NUCLEAR ENERGY CO., WINSTON & STRAWN
To:	Atomic Safety and Licensing Board Panel
References
CON-#398-19365 LA, NUDOCS 9807300276
Download: ML20236U558 (9)

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}G 00CKETED USHi6ly 27,1998 UNITED STATES OF AMERICA NUCLEAR REGTJLATORY COMMISSION OFHCc'5 RULE wy N 3 m D T T TM A3JUDDJONS UlAFF

- BEFORF THE ATOMIC S AFFTY AND i TCFNSING ROARD In the Matter of..

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Northeast Nuclear Energy Company ) Docket No. 50-423-LA

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(Millstone Nuclear Power Station, )

Unit No. 3) )

NORTHEAST NUCLEAR ENERGY COMPANY'S ANSWER TO PROPOSED CONTENTIONS RE:

RECIRCULATION SPR AY SYSTEM l

I. , INTRODUCTION '

In accordance with the Order of the Atomic Safety and Licensing Board (" Licensing Board") issued on June 15,1998, Northeast Nuclear Energy Company ("NNECO") hereby files its reply to the supplemented intervention petition (" Supplemented Petition") filed on July 6,1998, by the Chizens Regulatory Commission (" CRC")." This reply addresses the admissibility of CRC's proposed " contentions" for litigation on this docket.#

' ' In the Supplemented Petition CRC proposes two contentions, purportedly addressing NNECO's operating license amendment application of March 3,1998, related to one aspect of the operationof the Millstone Unit 3 Recirculation Spray System ("RSS"). As discussed below, CRC

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- CRC's petition responds to the Notice of Opportunity for Hearing published in the Federal

% Register on March 25,1998 (63 Fed. Reg.14487) (" Notice").

By its filing ofJuly 20,1998, NNECO previously addressed issues related to CRC's standing to intervene with respect to this matter.

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has not satisfied the Commission's requirements for admissibility of contentions. Under 10 C.F.R.

Q2.714, the proposed contentions should be rejected and this proceeding terminated.

II. BACKGROUND

. A. The Annroval at issue By applicatio- dated March 3,1998,# NNECO formally applied pursuant to 10 C.F.R. Q 50.90 for NRC approval of a 1986 licensing basis change involving the RSS. Based upon pre-opemtional test experience, in 1986 NNECO had made a change to the intended operation of the RSS involving RSS direct injection into the reactor coolant system during the recirculation phases of post-accident mitigation. This change was made pursuant to 10 C.F.R. Q 50.59, without NRC

. prior approval. During recent design and licensing basis verification activities at Millstone Unit 3, NNECO revisited this licensing basis change. NNECO detemlined that, based ul.on a new evaluation under 10 C.F.R. Q 50.59, the change should have been reviewed and approved by the NRC because it involved an "unreviewed safety question." NNECO did not identify any problem with the merits of the change, concluding that the system would have and will perform its intended function. The approval at issue in the Notice therefore focuses on orie RSS modification -- the modification related to RSS direct injection during recircuhtion phases.

NNECO (M.L. Bowling. h.) Letter to NRC (Do."ument Control Desk), B 17044, " Proposed License Amendment RequestNRecirculation Spray System Direct Injection Change (PLAR 3-98-1)," Docket No. 50-423, March 3,1998 (" Application").

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u B. NRC Requirements for Admission ofContentions To be admissible, proposed contentions must meet the detailed basis and specificity thresholds provided in the Commissien's requirements of 10 C.F.R. (( 2.714(b)(2) and (d)(2), as revised in 1989.# The Commission, in Ynnkee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7,43 NRC 235,248-49 (1996)(footnote omitted), held:

For a contention to be admissible, a petitioner must refer to a specific portion of the license application being challenged, state the issue of fact or law associated with that portion, and provide a " basis" of alleged facts or expert opinions, together with references to specific sources and documents that establish those facts or expert opinions.

10 C.F.R. ((2.714(b)(2),(d)(2). The basis must show that a genuine dispute exists on a material issue of fact or law. 10 C.F.R.

{2.714(b)(2). ?'A contention may be refused ifit does not meet the j requirements of Section 2.714(b) or if the contention, even if proven, would 'be of no consequence in the proceeding because it would not i entitle the petitioner to relief.' 10 C.F.R. @ 2.714(d)(2)(ii)."

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3,37 NRC 135,142 (1993).

Under longstanding Commission precedent, proposed contentions must also fall within the scope of the issues set forth in the notice of hearing. Src Vermont Yankee Nuclear Power l Corp. (Vermont Yankee Nuclear Power Station), LBP-90-6,31 NRC 85,91 (1990); Public Serv. Co.

ofIndinnn Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,3 NRC 167, ,

i 170 (1976). See also Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Units 1 and 2), 1 j

ALAB-739,18 NRC 335,339 (1983).# In our case, the Supplemented Petition offers proposed l l

contentions that fail to address material matters that could warrant reliefin this proceeding.

i 54 Fed. Reg. 33,168 (1989).

f See 54 Fed. Reg. at 33,169-l'il (revised rules on sdmissibi'lity of contentions did not alter pre-existing case law).

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In the Supplementary Information accompanying Section 2.714, the Commission emphasized that the rule " require [s] the proponent of the contention to supply information showing

. the existence of a genuine dispute with the applicant on an issue oflaw or fact." 54 Fed. Reg. at l 33,168. The Commission' further emphasized that contentions cannot be admitted when

. unaccompanied by supporting facts. Id. at 33,171. In Ari7ona Pub. Serv! Co. (Palo Verde Nuclear <

Generating Station, Unit Nos.1,2 and 3), CLI-91-12,34 NRC 149 (1991), the Commission stated

its intent that ((2.714(b)(2)(i)-(iii) be interpreted strictly: "If any one of these requirements is not met, a contention must be rejected." 34 NRC at 154 (citing the Supplementary Information,54 Fed.

. Reg. at 33,171L The Commission further stated:

These requirements are designed to raise the Commission's threshold for admissible contentions and to require a clear statement as to the basis for the contentions and the submission of more supporting information and references to specific documents and sources which establish the validity of the contention. Sec 54 Fed. Reg. 33168, 33170 (August 11,1989).

34 NRC at '154 (emphasis added).~ The rules on admission of contentions therefore require precision

- in the contention pleading process to ensure that a proposed contention is specific and has factual j i

support.2' The " facts" cited by~ CRC cannot satisfy the Commission's strict requirement that the supporting basis for a contention be' adequate to show a genuine issue.

, , , . ,A ' 54 Fed. Rep. at 33,168, q -

In Union of Concemed Scientists v. United Sintes Nuclear Regninforv Comm'n,920 F.2d l 50 (D.C. Cir.1990), the Court upheld the NRC's revisions to {2.714, compared {2.714(b),

. as amended, to the prior version, and confirmed that "[t]he new rule perceptibly heightens - {

'. th[e] pleading standard" for contentions. Id. at 52.

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III. DISCUSSION 1A.'  ; Pmnosed Contention I CRC's Proposed Contention I challenges the capability of the RSS to perform its

' function because "the systems have not been tested." CRC asserts that, absent a test,"it has not been determined that they [the systems) will be functional, that is, that the flow will be divided'as 0-postulate'd."

As a basis for this contention, CRC draws upon NNECO's February 16, 1998,-

submittal to the NRC Staff on the RSS? CRC identifies a number of RSS modifications, as addressed in the February Submittal, and argues that these modifications affect system flow, that "NNECO has a history and a propensity to supply incorrect calculations ,and information for computer modeling," and that "NNECO has submitted no documentation to establish that it has

. conducted actual testing or modeling of the systems in place "

These assertions fail to support a proposed contention admissible in this proceeding.

First, as discussed in NNECO's July 20,1998, reply to the Supplemented Petition on standing issues, CRC is addressing a matter beyond the scope of the amendm.ent at issue, beyond the scope

. of the FederalRegister Notice, and beyond the scope of this proceeding. We will not repeat here

' the discussion in our earlier response; however, in summary, NNECO's February Submittal (an

'. integrated assessment of RSS modifications) is not at issue in this proceeding.

, Only one RSS modification was determined under 10 C.F.R. Q 50.59 to be subject

< to the amendment process of 10 C.F.R. { 50.90-50.92. That is the modification related to RSS u

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NNECO (M.L. Bowling, Jr.) Letter to NRC (Document Control Desk), B b050, " Response to Notice Request for Information on the Recirculation Spray System," Docket No. 50-423, FebruaryJ 6,1998 (" February Submittal").

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l direct injection during the recirculation phases ofpost-accident mitigation, as discussed in the March Application. CRC, in its proposed contention, does ne' ddress this change, does not cite any l portion of the Application, and does not correlate its - :rtion regarding testing to this specific issue.

The proposed contention must be refused.

Second, even if one were to give CRC the benefit of the doubt, and somehow read the Supplemented Petition as raising an issue regarding testing related to the specific RSS modification involvio, direct injection (and such a reading would indeed require a stretch of the words), the proposed contention would still fail to meet the Commission's basis and specificity requirements as explained in Yankee Atomic, CLI-96-7,43 NRC at 248-49. As discussed above, the pleading requirements of {@ 2.714(b)(2) and (d)(2) are not permissive. It is the petitioner who is obligated to provide the analyses and expert opinion, to show why its bases support its contention.

Georgia institute of Technology (Georgia Tech Research Reactor), LBP-95-6,41 NRC 281,305 (1995), nting Palo Verde, CLI-91-12,34 NRC 149. CRC has not met this threshold.

CRC does not address the revised analysis of the RSS performance provided in Attachment 2 to the March 3,1998, amendment application. CRC does not offer any recognized expert opinion on the modified RSS performance. CRC does not even address the discussions of

" system testing considerations" and " testing results" included the February Submittal that it relies upon. In this latter regard, when a petitioner relies upon a document as its basis for a proposed i conten6on, that document is subject to scrutiny by the Licensing Board "both for what it does and does not show." Ynnkee Atomic Flectric Comnany (Yankee Nuclear Power Station), LBP-96-2,43 s

NRC 61,90 (1996). Here, the documeni does show the testing that has been performed and does L

nca show any affirmative support for the proposed contention.

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I In sum, Proposed Contention I is an unsupported allegation that addresses matters beyond the scope of this proceeding. CRC has failed to show that a genuine dispute exists on a material issue offact or law. The Supplemented Petition does not demonstrate an issue thatjustifies the time and expense of a formal adjudicatory proceeding.

B. Pronosed Contention II In Proposed Contention II, CRC asserts that "[r] eduction by halfin the RSS flow results in a major change in capacity which requires actual testing." Supplemented Petition, at page L

4. In the sparse statement of basis, CRC refers only to a modification involving a reduction in "the number of spray holes in the containment ring to create the estimated flow requirements," and faults 1

NNECO for submitting "no documentation to establish that it conducted actual testing of the system." CRC again provides no citation to documentary support and no expert opinion on which it relies. '

i NNECO does not see this contention as materially different from Proposed -!

Contention I, and it can be refused on that basis alone. Moreover, as with Proposed Contention I, this proposed contention has no bearing on the RSS modification at issue here and lacks a sufficient -

basis for admission. The discussion above applies. Again, the Supplemented Petition does not demonstrate an issue that justifies the expense oflitigation.

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l: IV. CONCLUSION ll For the reasons set forth above, CRC has failed to propose an admissible contention.

l Both Proposed Contention I and Proposed Contention II should be rejected and this proceeding terminated.

Respectfully submitted, kd. k Ye David A. Repka \ N WINSTON & STRAWN 1400 L Street, N.W.

Washington, D.C. 20005-3502 (202)371-5726 Lillian M. Cuoco -

NORTHEAST UTILITIES SERVICE COMPANY 107 Selden Street Berlin, Connecticut 06037 ATTORNEYS FOR NORTHEAST NUCLEAR ENERGY COMPANY l

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Dated in Washington, D.C.~

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this 27th day ofJuly,1998 l

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UN111dD STATES OF AMERICA g NUCLEAR REGULATORY COMMISSION 98 JUL 29 P3 :19 REFORF THE ATOMIC SAFFTV AND I.ICENSING BOARD OFFa : F ; E 10 In the Matter of RULEMA V - M 'U

) ADJUDIC4;u ; e tAFrr

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. Northeast Nuclear Energy Company ) Docket No. 50-423-LA

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(Millstone Nuclear Power Station, )

Unit No. 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of" NORTHEAST NUCLEAR ENERGY COMPANY'S ANSWER TO PROPOSED CONTENTIONS RE: RECIRCULATION SPRAY SYSTEM MATTER,"in the above-captioned proceeding, have been served on the following by deposit in the  ;

United States mail, first class, this 27th day of July,1998. In addition, for those parties marked by  ;

an asterisk (*), a courtesy copy has been provided this same day by e-mail. j i

Nancy Burton, Esq. Thomas S. Moore *  !

147 Cross Highway Chairman i Redding Ridge, CT 06876 Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the Secretary Dr. Chrles N. Kelber*

U.S. Nuclear Regulatory Commission Administrative Judge Washington, DC 20555 Atomic Safety and Licensing Board ,

Attn: Rulemaking and Adjudications U.S. Nuclear Regulatory Commission  !

(original + two copies) Washington, DC 20555-0001  !

Adjudicatory File Dr. Richard F. Cole

• Atomic Safety and Licensing Board Panel Administrative Judge i U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission l t'

Washington, DC 20555-0001 l

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" Office of Commission Appellate Adjudication - Richard G. Bachmann, Esq.*

U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC.20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 '

d- k he David A.Repka \

Winston & Strawn Counsel for Northeast Nuclear Energy Company

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