ML20236V240
| ML20236V240 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 07/28/1998 |
| From: | Repka D NORTHEAST NUCLEAR ENERGY CO., WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#398-19374 LA-2, NUDOCS 9808030025 | |
| Download: ML20236V240 (13) | |
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5 00CKETED USHRC 36 JUL 31 P2 :2Suly28,1998 UNITED STATES OF AME h
, h$d NUCLEAR REGULATORY COMl!018$fDN i du STAFF l
j BEFORE THE ATOMIC SAFETY AND I ICENSING BOARD
~ In the Matter of
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' Northeast Nuclear Energy Company
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Docket No. 50-423-LA-2
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(Millstone Nuclear Power Station,
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Unit No. 3)
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NORTHEAST NUCLEAR ENERGY COMPANY'S ANSWER TO PROPOSED CONTENTIONS RE:
StIMP PIIMP SIJBSYSTEM APPROVAL
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l I. INTRODIJCTION In accordance with the Order of the Atomic Safety and Licensing Board (" Lice Board") issued on June 16,1998, Northeast Nuclear Energy Company ("NNECO") hereb1 reply to the amended intervention petition (" Supplemented Petition") filed on July 7,19 l
d Citizens Regulatory Commission (" CRC")." This reply addresses the admissibility of CR Proposed " contentions" for litigation on this ' docket."
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CRC's petition responds to a notice of proposed action, opportunity for hearing, and i
proposed "no significant hazards consideration" determination published in the Federal Register on. April 22,1998 (63 Fed. Reg. 19964,19974)(" Notice").
By its filing of July 21,1998 ("NNECO's Standing Response"), NNECO previously addressed issues related to CRC's standing to intervene with respect to this matter.
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i The Supplemented Petition supplements CRC's initial petition of May 21,1998, and proposes five contentions. The contentions relate to NNECO's license amendment application associated with installation ofcertain safety-related sump pumps in the Millstone Unit 3 Engine Safety Features ("ESF") building sumps. As discussed below, CRC in the Supplemented Petition has not satisfied the Commission's requirements for admissibility of contentions. Under 10 C.F.R.
@ 2.714, the proposed contentions should be rejected and this proceeding terminated.
IL BACKGROUND A.
The Apnroval at issue As discussed in NNECO's June 5,1998, response to CRC's initial filing on this
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docket, the specific license amendment at issue relates to NNECO's corrective actions to address a problem related to groundwater inleakage presumed to be through the containment basemat liner.
As described in NNECO's April 1,1998, amendment Application,# there are sumps located in the ESF building. Any groundwater inleakage that occurs is directed to these ESF building sumps.
NNECO determined that if this water is not removed, it might eventually affect operation of the Recirculation Spray System ("RSS"). To correct the problem, NNECO identified a design change involving installation of two safety-related, air-driven sump pumps in the ESF building sumps. In addition, NNECO developed a revision to the licensing basis documentation -- the updated Final Safety Analysis Report ("UFSAR") -- to reflect the potential for groundwater inleakage and to describe the sump pumps. Pursuant to 10 C.F.R. 50.59, NNECO determined that these changes require NRC review and approval.
NNECO (M.L. Bowling, Jr.) Letter to NRC (Document Control Desk), B 17141, " Proposed
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License Amendment Request // ESF Building Sump Pumping Subsystem (PLAR 3-98-2),"
l Docket No. 50-423, April 1,1998 (" Application").
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11.
NRC Requirements for Admission ofContentions To be admissible, proposed contentions must meet the detailed basis and specificity thresholds provided in the Commission's requirements of 10 C.F.R. Q 2.714(b)(2) and (d)(2), as revised in 1989.# The Commission, in Yankee 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. Q 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 requirements of Section 2.714(b) or if the contention, even if proven, i
would 'be of no consequence in the proceeding because it would not
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i entitle the petitioner to relief.'
Sacramento Mmicipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3,37 NRC 135,142 (1993).
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 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 QQ2.714(b)(2)(i)-(iii) be interpreted strictly: "If any one of these requirements is not i
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l 54 Fed. Reg. 33,168 (1989).
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met, a contention must be rejected." 34 NRC at 154 (citing the Supplementary Infom1ation,54 Fed.
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Reg. at 33,171). The Commission further stated-l 1
These requirements are designed to mise the Commission's threshold l
for admissible contentions and to require a clear statement as to the j
basis for the contentions and the submission of more supporting i
infonnation and references to specific documents and sources which establish the validity of the contention. See 54 Fed. Reg. 33168, 33170 (August i1,1989).
34 hTC at 154 (emphasis added).
The rules on admission of contentions therefore require precision in the contention pleading process to ensure that a proposed contention has factual support.i' CRC has not satisfied the Commission's strict requirement that the supporting basis for proposed contentions be adequate to show a genuine issue and that the proposed contentions, if proven, would be of consequence in this proceeding.
Ill. DISCUSSION A.
Proposed Contention 1 Proposed Contention I states:
The proposed dewatering system does not -meet criteria for a permanent dewatering system because one of the components, the diesel-powered air compressor,is not safety-related.
As a " basis" for this contention, CRC refers to NRC Stantivd Review Plan ("SRP")
Section 3.4.1, and quotes the provision that:
i' In Union of Concerned Scientists v. United States Nuclear Regulatorv Comm'n: 920 F.2d 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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Ifsafety-related structures are protected from below-grade groundwater seepage by means of a permanent dewatering system, then the system should be designed as a safety-related system and meet the single failure proof criterion.
This proposed contention fails to meet the " basis" requirements of 10 C.F.R. Q{
2.714(b)(2) and (d)(2). The assertion is that the sump pump subsystem does not meet SRP Section 3.4.1. However, the assertion is explicitly contradicted by the materials submitted with NNECO's Application -- the very materials on which CRC relies. The Licensing Board is permitted to scrutinize the Application "both for what it does and does not show." Yankee Atomic Electric Comnany (Yankee Nuclear Power Station), LBP-96-2,43 NRC 61,90 (1996). CRC lacks a basis --
documentary support or expert opinion - on which to refute NNECO's Application. See 10 C.F.R. 2.714(b)(2)(ii).
CRC's proposed contention essentially draws from the materials submitted with l
NNECO's Application (Application, Attachment 2, UFSAR Mark-up, at " Insert C"). CRC extracts the proposition that the portable diesel air compressors are not classified as safety-related. CRC then i
l makes the leap to assert that the sump pump subsystem does not meet SRP 3.4.1. However, notwithstanding the safety classification of the portable diesel compressors, the Application (Application, Attachment 4, at pages 1-2) specifically discusses the accessibility and testing of the air compressors to ensure their availability, and concludes that the "new system [the post-accident sump pump subsystem) is single failure proof and meets the requirements of Standard Review Plan 3.4.1...."
CRC offers no other basis -- no documentary support, no expert opinions -- as required by 10 C.F.R. @ 2.714@)(2)(ii), for a contention that the air compressors (as opposed to the subsystem) need to be safety-related or for its contention that the subsystem does not meet SRP 5
d 3.4.1. CRC has not met is threshold burden of demonstrating that there would be a genuine that warrants the time r.nd expense oflitigation.
B.
Pronosed Contention II Proposed Contention 11 states:
The proposed amendment contradicts the current FSAR.
This vague and non-specific contention is illuminated slightly in the " basis" discussion. CRC appears to take issue with language to be included in the revised UFSAR, Section 3.4.1.2 (see Application, Attachment 2, UFSAR Mark-Up, at page 3.4-3 (section 3.4.1.2)). As modified, the UFSAR would read:
There is no safety-related dewatering system (for adverse hydrology events) for Millstone 3.
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system is not applicable.
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CRC reads this as contradictory to the Application seeking approval of"a proposed amendment to design and install a permanent dewatering system within the criteria of Standard Review Plan 3.4.1.
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This entire contention appears to be premised on a definitional issue: is there a
" permanent dewatering system?" At the time NNECO drafted the Application and the included UFSAR Mark-Up, it concluded that the sump pump subsystem involved (intended only for post-accident operation) was not a " permanent dewatering system." Regardless of the definitional issue, however, as discussed above, NNECO's Application and the UFSAR Mark-Up are clear regarding i
the new safety-related sump pump subsystem, its intended function, and its conformity with SRP j
3.4.1. The contention in no way challenges the adequacy of that subsystem.
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J At bottom, this proposed contention is simply a matter of no consequence. It is not
- clear to NNECO what meaningful relief CRC requests and what meaningful reliefcould be granted.
NNECO concludes that this proposed contention fails to meet the standard of admissibility of 10 C.F.R. { 2.714(d)(2)(ii). It should be also noted that CRC offers no support either documentary or expert opinion, on the issue of whether the proposed UFSAR Mark-Up of Section 3.4.1.2 is technically inaccurate or inadequate.
C.
Pronosed Contentior III Proposed Contention III states:
The proposed amendment fails to correct the false f
assertion in MNPS-s FSAR [ sic.] that "[t]he l
containment and all other Category I structures are protected from groundwater inflow by a waterproof membrane below the groundwater level."
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j CRC goes on to specify that the quoted UFSAR language contradicts the statement in NNECO's Application that:
Degradation of the waterproof membrane has been I
detected, allowing groundwater inleakage.
This proposed contention simply fails to show that a " genuine dispute exists with the applicant on a material issue oflaw or fact." 10 C.F.R. 2.714(b)(2)(iii). Similarly, it is a contention that "would be ofno consequence in the proceeding because it would not entitle petitioner to relief." 10 C.F.R. % 2.714(d)(2)(ii).
CRC is correct that NNECO has acknowledged the existence of unanticipated groundwater inleakage, and that NNECO has even measured the amount of such inleakage. This is discussed in the Application. Nonetheless, the waterproof membrane described in the Application i
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and UFSAR still exists. The characterization of the UFSAR statement as a " false assert inaccurate. Moreover, the pre-existing non-safety-related leakage collection system and sump pumps continue to exist and are utilized. See Application, Attachment 4, at page 2. The new safety-related sump pump subsystem has been designed for post-accident operation. See Application,, UFSAR Mark-Up, at " Insert C." NNECO finds nothing in this proposed contention or its basis statement that demonstrates a genuine issue that warrants the tirne and expense of litigation.
D.
Proposed C'ontention IV Proposed Contention IV states:
Materials submitted in support of the proposed license amendment fail to demonstrate that the air-driven pumps are adequate to maintain operability of all four RSS pumps under all climactic conditions.
This proposed contention fails for vagueness and a lack of sufficient basis. First, it is not clear what snecine deficiency is being alleged. And, second, even if there were a specific deficiency alleged, there is no basis provided, either documentary or expert opinion, to support such an assertion.
CRC,in the Supplemental Petition, states that the UFSAR " asserts that the controlling event for flooding at the site is a storm surge resulting from the occurrence of the ' probable maximum hurricane' ('PMH')"(Supplemented Petition, at page 3). This is a correct reading of the UFSAR. See Application, Attachment 2, UFSAR Mark-Up, at page 2.5.4-15. CRC then leaps to the somewhat contradictory conclusion that the sump pump subsystem is not designed adequately for this " controlling event." CRC does not allege any specific deficiency relative to the controlling l
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event, much less provide a technical basis for the charge, l
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6 In pleading a contention, CRC must do more than allege a problem, and thereby put the burden on NNECO ofproving the negative. Compare Palo Verde, CLI-91-12,34 NRC at 154.
Here, CRC does not explain orjustify any nexus between a storm surge that might be caused by a hurricane and the issue of groundwater. CRC does not point to any data that would contradict NNECO's conclusions regarding the sump pump subsystem capacity. And CRC does not even postulate a failure mechanism. Moreover, as explained in the Application, the safety-related sump pump subsystem is intended only for post-accident operation. No basis is given in connection with the proposed contention for assuming a simultaneous hurricane and loss-of-coolant accident. The contention should be refused for lack of specificity and basis.
E.
Proposed Cantention V Proposed Contention V states:
The proposed amendment fails to demonstrate adequate review of the conditions which may have developed sub-containment basemat prior to detection of groundwater inleakage in the estimated amount of 750 i
to 1000 gallons per day.
i The " basis" discussion then goes on to question a) "whether the integrity of the basemat is affected"; b) the reasons for failure to detect the inleakage; and c) "the impact, if any, on the functionality of the proposed license amendment." CRC also restates with emphasis NNECO's 1
own conclusion, from the Application, that failure of the non-safety-related sump pumps could
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1 impact operability of the Recirculation Spray System ("RSS").
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The fundamental problem with this proposed contention and its " basis" is its complete lack of actual basis as required by 10 C.F.R. @ 2.714(b)(2)(ii) and (iii). CRC raises questions about the basemat, about the timeframe for detection of groundwater inleakage, and about 9
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the functionality of the new sump pumping subsystem. However, questions are not contentions.
And questions are certainly not a basis for a contention challenging the amendment.
The proposed contention does not request or even suggest any particular relief.
NNECO has acknowledged groundwater inleakage. In fac., the original seepage collection system recognized inleakage. The amendment, as we have stated before, is intended to addre.;s the inleakage problem in its current scope. The statement quoted by CRC regarding the postulated failure of the pre-existing non-safety-related sump pumps adds nothing (that postulated failure is precisely the reason for the new subsystem). CRC offers nothing that would suggest that the amendment involving the new safety-related subsystem is inadequate.
To the extent that CRC wants to explore other issues potentially related to groundwater inleakage, such as CRC's postulated impact of inleakage on the integrity of the
- basemat, or NNECO's ability to detect and analyze engineering problems, this proceeding is not the appropriate forum. These would be issues more appropriate for the 10 C.F.R. { 2.206 process. This proceeding relates to the new sump pump subsystem as a means to protect operability of the RSS."
The proposed contention is not admissible.
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i A proposed contention must fall within the scope of the notice of hearing. See Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Units I and 2), ALAB-739,18 NRC 335,339 (1983). The Federal Register Notice of April 22,199L does not mention basemat integrity or NNECO's engineering capabilities. Sec 63 Fed. p 3. D974-75.
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IV. CONCI USION For the reasons set forth above, CRC has failed to propose an admissible contention.-
The intervention petition should be denied and this proceeding terminated.
Respectfully submitted, k
iItd,1k eDIlc David A. Repka
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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, Cotmeeticut 06037 ATTORNEYS FOR NORTHEAST NUCLEAR ENERGY COMPANY Dated in Washington, D.C.
this 28th day of July,1998 I '
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UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USHRC BEFORE THE ATOMIC SAFETY AND I ICENSING BOARD OFR::.&
"No
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In the Matter of
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Northeast Nuclear Energy Company
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Docket No. 50-423-LA-2
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(Millstone Nuclear Power Station,
)
Unit No. 3)
)
CERTIFICATE OLSERVICE I hereby certify that copies of" NORTHEAST NUCLEAR ENERGY COMPANY'S ANSWER TO PROPOSED CONTENTIONS RE: SUMP PUMP SUBSYSTEM APPROVAL,"
in the above-captioned proceeding, have been served on the following by deposit in the United S mail, first class, this 28th day ofJuly,1998. In addition, for those parties marked by an asteris a courtesy copy has been provided this same day by e-meil.
Nancy burton, Esq.
Thomas S. Moore
- 147 Cross Highway Chainnan Redding Ridge, CT 06876 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of,^ e Secretary Dr. Charles N. Kelber*
n 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 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 l
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y Office of Commission Appellate Adjudication Richard G. Bachmann, Esq.*
U.S. Nuclear Regulatory Commission Office of the General Counsel
- Washington, DC.2n 355 U.S. Nuclear Regulatory Commission Washington, DC 20555 I
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U David A. Repka 1
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j Winston & Strawn-
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Counsel for Northeast Nuclear Energy Company d
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