ML20238F870
| ML20238F870 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/03/1998 |
| From: | Cotter H, Kelber C, Little L Atomic Safety and Licensing Board Panel |
| To: | NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| References | |
| CON-#398-19489 98-746-05-LA, 98-746-5-LA, LA, LBP-98-23, NUDOCS 9809080036 | |
| Download: ML20238F870 (26) | |
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00CKETED gQRg-98-23 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 98 SEP -4 A9 :27 ATOMIC SAFETY AND LICENSING BOARD PANEL OFFU OF FPHM Y Before Administrative Judges: R Ui.t w /. W . $D ADJUDiCai&5 STAFF B. Paul Cotter, Jr., Chairman Dr. Charles N. Kelber Dr. Linda W. Little*
,4 In the Matter of Docket No. 50-443-LA NORTH ATLANTIC ENERGY ASLBP No. 98-746-05-LA SERVICE CORPORATION i
(Seabrook Station Unit No. 1) September 3, 1998 MEMORANDUM AND ORDER (Ruling on Petitions to Intervene)
I. Introduction The Seacoast Anti-Pollution League (SAPL) and the New England Coalition on Nuclear Pollution (NECNP) have petitioned to. intervene in North Atlantic Energy Service Corporation's (NAESCO) application to amend its operating license for the Seabrook Station, Unit i nuclear reactor. The amendment authorizes NAESCO to change the surveillance requirements for
-Seabrook's steam generator tube inspections from 18 to 24 months.
SAPL and NECNP oppose the amendment on the basis that it would cause increased risk of an accident that could have adverse offsite consequences to persons within the ten mile Seabrook emergency planning zone. Both petitioners additionally argue that the NRC staff's determination that the request involves "no significant hazards" is inconsistent with the requirements of 9809000036 900903 PDR ADOCK 05000443 9 PDR _
s 10 C.F.R. 50.92 (c) (1998) . SAPL and NECNP subsequently submitted four contentions as issues to be litigated in this proceeding.
For the reasons stated herein, SAPL's petition to intervene is granted and NECNP's petition is denied. SAPL's Contention 1
. is accepted for litigation in this proceeding. A ruling on Contentions 2, 3, and 4 is deferred pending receipt of additional-information from the parties.
II. Requirements for Intervention As a threshold matter, before petitioners may be granted a hearing and allowed to intervene in NRC proceedings, they must satisfy this agency's requirements for intervention set forth at 10 C.F.R. 2.714 (a) (1) - (2) . These include the requirements that petitioners have standing to intervene and that their intervention requests are timely. Petitions which are filed out-of-time will not be entertained absent a determination that the petitioners meet the balancing test set out in 10 C.F.R. 2.714 (a) (1) . Factors included in this test are: (1) good cause, if any, for failure to file on time; (2) the availability of other means whereby the petitioner's interest will be protected; (3) the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; (4) the extent to which the petitioner's interest will be represented by existing parties; and (5) the extent to which the petitioner's participation will broaden the issues or delay the proceeding. i l
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Judicial tests to establish standing are applied in NRC proceedings to determine whether a petitioner has a sufficient interest to be entitled to intervene. These tests require a petitioner to show that: (1) the proposed action will cause
" injury in fact" to the petitioner; (2) the injury is arguably within the zone of interest to be protected by the statutes governing the proceeding; and (3) the asserted injury must be capable of redress in the instant proceeding. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996); Georcia Power Comoany (Vogtle Electric Generating Plant, Units 1 and 2), CL!-93-16, 38 NRC 25 (1993).
Organizations as well as individuals may intervene in NRC proceedings. An organization may attempt to show standing through one of its individual members, but to do so the organization must provide some " concrete indication" that the member wishes to be represented by the organization and that he or she will be in close enough physical proximity to the action
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in question to be adversely affected. Eeg Mgymont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) LBP-87-7, 25 NRC 116, 118 (1987); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-92-27, 36 NRC 196, 199 (1992).
I III. The SAPL and NECNP Intervention i
In determining whether SAPL and NECNP have established their right to intervene, we first analyze whether their petitions were i
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timely filed. SAPL's petition is timely because it was filed on June 5, 1998, the last day permitted by the Federal Register to
. request a hearing for the Seabrook proceeding. 63 Fed. Reg. 25101, 25113 (May 6, 1998). See also June 5, 1998 letter from l
Robert A. Backus to Chairman Shirley Jackson. NECNP, on the other hand, did not submit a timely request. The June 5, 1998 hearing request by SAPL said nothing about NECNP participation.
NECNP's intent to intervene first became known on June 18, 1998 -
- 13 days after the intervention period had expired -- when SAPL, joined by NECNP, filed an amended, supplemental petition to intervene. Supplemental and Amended Petition for Institution of Proceeding and for Intervention Pursuant to 10 C.F.R. 2.714 On Behalf of the Seacoast Anti-Pollution League and the New England Coalition on Nuclear Pollution (June 18, 1998) (hereinafter referred to as "SAPL and NECNP June 18, 1998 Supplemental Petition"). In a July 9, 3998 filing, NECNP subsequently argued that its petition is not untimely because it is merely joining the earlier petition of SAPL which it asserts it is entitled to do under Rule 20 of the Federal Rules of Civil Procedure (FRCP).
NECNP asserts joinder is appropriate in this instance since "NECNP is not raising any new contentions, bringing forth any l matters nat addressed in the June 5" filing, or using separate counsel." They also argue that the Federal Rules apply here since the NRC has no rules on joinder. Egg cover letter to a SAPL/NECNP July 9, 1998 joint document submittal furnishing
affidavits and contentions (hereinafter referred to as the "SAPL
. July 9, 1998 Submittal").
Putting aside the question of whether the NRC is obliged to l
follow the Federal Rules of Civil Procedure , we do not agree that those rules allow non-timely petitioners to intervene in NRC proceedings. To obtain intervention, NECNP relies on FRCP Rule 20 which allows joinder of plaintiffs with causes of action arising from occurrences with common questions of law or fact.
However, NECNP's reliance is misplaced since the issue here is not whether joinder of parties or causes of action at the NRC is permissible, but whether out-of-time requests by potential parties (whether or not they involve joinder requests) should be allowed. Both the NRC rules of practice and the Federal Rules of Civil Procedure make clear that petitioners seeking intervention in a federal agency proceeding must adhere to time requirements
' set down by the agency. The NRC requirements in 10 C.F.R. 2.714 (a) (1) set out above require late petitioners to demonstrate that their participation is justified or be excluded from the proceeding. To allow otherwise, could result in delayed proceedings and unfair prejudice to other parties. The Federal Rules are in agreement with this requirement since FRCP 24 (a) and (b) specifically require that intervention in federal The Federal Rules of Civil Procedure may serve as guidance in applying NRC rules of procedure, but they are not required to be used in NRC proceedings. Cincinnati Gas and Electric Company (Zimmer Nuclear Station, Unit 1), LBP-82-47, 15 NRC 1538, 1542 (1982); Public Service Co. of Oklahoma (Black Fox Station Units 1 and 2), ALAB-573, 10 NRC 775, 780 n. 18 (1979).
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- judicial proceedings will be allowed only "upon timely application." NECNP has not attempted to furnish information
, required by 10 C.F.R. 2. 714 (a) (1) , and, having failed to do so, its petition to intervene is denied.
Because SAPL's petition was timely filed, we now turn to whether SAPL has standing to intervene. The first test in determining SAPL's standing is whether SAPL has standing in its own right to intervene as an organization in this proceeding or whether it obtains this right through potential injury to one of
, its members. SAPL has elected to obtain standing through its individual members by furnishing affidavits from four members stating that SAPL is authorized to represent them. Based on these affidavits, the board is satisfied that SAPL is duly authorized to' represent these members. Neither NAESCO or staff attempt to contradict this authorization.
The next question regarding SAPL's standing is whether at least one of these four SAPL members comes within close enough
- contact with the Seabrook reactor to be potentially adversely affected by the contested license amendment. Their affidavits establish that one resides less than two miles from the facility, one resides less than three miles, and two reside less than ten miles. In addition, one of them, Kristie Conrad, has a daughter who attends school less than two miles from the facility. Egg SAPL July 9, 1998 submittal. SAPL contends that the risk of an accident at Seabrook with offsite consequences affecting these members could be increased should the amendment be allowed
because a 24 month instead of an 18 month fuel cycle will result in: (1) increased risk of steam generator tube failure (by failing to detect and remedy early failure) that will increase the risk that radiation will by-pass the containment and enter the atmosphere; (2) increased stress to the fuel cladding, the first of three primary barriers against radioactive release at Seabrook due to required use of more highly enriched fuel (with higher fuel burn up); (3) increased use of online maintenance (a procedure requiring the intentional disablement of systems, structures and components important to safety) that will increase the danger that an accident will not be mitigated as planned; and (4) decreased opportunity for timely inspection of valves or other control components in the high radiation area that will increase potential for offsite consequences if a transient is initiated. Egg SAPL and NECNP June 18, 1998 Supplemental and Amended Petition.
The NRC Staff takes the position that SAPL's steam generator tubes allegation, item 1 above represents oufficient potential injury to establish SAPL's standing because steam generator tube inspections, if not performed adequately, can lead to release of
-radioactivity with " obvious potential for offsite consequences."
NRC Staff's Response to July 9, 1998 Submittal by Seacoast Anti-Pollution League and New England Coalition on Nuclear Pollution (July 27, 1998) (hereinafter referred to as Staff's July 27, 1998 Response) at pp. 6.. NAESCO, on the other hand, disagrees that SAPL has established standing, arguing that SAPL has not
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identified what safety margins are impacted by the amendment, how those margins will be reduced, or how any such reductions could lead toJoffsite releases of radioactivity. NAESCO further argues that SAPL can only derive standing from the steam generator issue and not the three other issues it has listed (i.e. , fuel cladding,.online maintenance, and surveillance) since the steam
. generator tube issue is the only matter relating to the license l
l- amendment giving rise to SAPL's petition to intervene. North Atlantic' Energy Service Corporations's Supplemental Answer RE:
l Standing Issues.(July 27, 1998)' (hereinafter referred to as NAESCOs July 27, 1998 Supplemental Answer) at pp. 5-7.
We agree with staff that SAPL's allegation of potential injury stemming from reduced generator tube surveillance establishes SAPL's standing in this case. Commission case law i establishes that. potential injury sufficient to confer standing to people residing near a nuclear facility. occurs when a i licensing action has obvious potential for offsite consequences.
Cleveland Electric Illuminating Co. (Perry Nuclear Power-Plant, Unit 1), CLI-93-21, 38 NRC 87, 95 (1993); Secuovah Fuels Corp.
-and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, fn. 22 (1994) ; Georcia Institute of Technoloav (Georgia Tech Research. Reactor), CLI 95-12, 42 NRC 111, 116 (1995). A full-blown analysis is not required to demonstrate standing since petitioners are not required to establish the existence of l
potential injury with certainty "at the threshold [ standing) phase" (Secuovah Fuels, 40 NRC at 74; Perrv, 38 NRC at 95-96).
Moreover, at the threshold standing stage of a proceeding, petitioners' arguments will be viewed in their favor. Georoia Tech Research Reactor, 42 NRC at 115.2 Relative to a threshold standing determination, even minor radiological exposures resulting from a' proposed' activity can be enough to create the requisite injury in fact. General Public Utilities Nuclear Corocration (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143, 158 (1996).
To establish potential offsite consequences caused by decreased steam generator tube inspection, SAPL asserts that generator tubes are much more likely to fail and go undetected if the interval between inspections is increased by 25% as will occur under the new license amendment. These failed tubes, according to SAPL, will allow radioactive materials to by-pass the containment and escape into the environment from the tubes.
SAPL and NECNP June 18, 1998 Supplemental Petition and SAPL's July 8, 1998 Contention Submittal at p. 1. Although these SAPL claims are subject to challenge at a hearing, the board finds that the scenario presented by SAPL, at this threshold stage of the proceeding, has obvious potential for offsite consequences.
Moreover, the potential for SAPL's scenario is enhanced by the
- In this regard, in Kelly v. Selin, 42 F.3d 1501, 1508 (1995) (a case challenging the NRC's dry cask storage regulations !
for the Palisades facility), the Sixth Circuit Court of Appeals )
went so far as to state that for purposes of determining whether petitioners have standing, it will not only construe the complaint in favor of the complaining party, but it also will l
" accept as true all material allegations of the complaint." i 1
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fact that-the NRC's Standard Review Plan cont'emplates the danger
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of radiation exposure from failed generator tubes. Egg Standard Review Plan, NUREG-0800 (Rev. 2, 1981). Compare the holdings in
.the-Oyster-Creek and two Millstone spent-fuel cases where boards found in'each case a clear potential for offsite consequences.
Ovster Creek, 44 NRC at 157-158; Northeast Nuclear Enerav Comoany (Millstone Nuclear Power Station, Unit 2) LBP-92-28, 36 No 202,212-213 (1992) and (Millstone Nuclear Power Station, Unit 1)
LBP-96-1, 43 NRC 19, 26 (1996). The potential here for off-site consequences appears-significantly greater.
Under these circumstances, we conclude that sufficient potential injury-in-fact to SAPL members has'been amply established in this case to establish SAPL standing. It is also clear that the potential injury alleged by SAPL is within the zone of interests protected by the Atomic Energy Act. Thus, SAPL should be allowed intervention subject to the submission of one l
, acceptable contention for litigation.
IV. SAPL's Contentions i
To be admitted as a party in this proceeding, SAPL must not only establish standing, but also must proffer at least one admissible contention. The standards for admissible contentions are set out in 10 C.F.R. 2.174 (b) (2) and (d) (2) (1998) . These regulations require that SAPL's contentions include a specific statement of the issue of law or fact to be raised or controverted, a brief explanation of the bases for the l
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L contention, and a concise statement of the alleged facts or l
l expert opinion which support the contention, together with 1
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' references to those specific sources and documents on which the petitioner intends to rely to prove the contention. gag Yankee-Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 248-49 (1996). In addition, Section 2.714 (b) (2) (iii) requires'that SAPL present sufficient information'to.show that a genuine dispute' exists on a naterial' issue of law or fact. A-D contention that fails to meet these standards must be dismissed, as must a contention that, even if proven, would be of no consequence because it would not entitle a petitioner to any L relief. Section 2.714 L (d) (2) .
SAPL's four contentions.for litigation in this proceeding set out in SAPL's July 9, 1998 Contention Submittal at pp. 1-17, are as follows:
l Contention 1 The staff erred-in its May 6 finding of no L
significant hazards consideration in regard to-the E request of NAESCO to change the Technical Specifications for Seabrook Station to accommodate fuel cycles of up to 24 months with respect to the L
allowed time between steam generator in service inspections. Contrary to the staff's conclusion, the proposed changes may cause a significant i increase in the probability or consequences of an !
accident previously evaluated, and may involve a u-______ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____
significant reduction in the margin of safety, contrary to the requirements of 10 CFR 50.92.
Contention 2 The staff erred in its May 6 finding of no significant hazards consideration in regard to the request to change the Technical Specification for Seabrook Station to accommodate a 24 month fuel cycle because the staff failed to analyze the impact of a 25% longer operational run on fuel rod failure, and because the result of a longer run will be to increase fuel rod failure, thereby breaching the first line of defense against offsite radioactive releases. Therefore, the finding is contrary to the requirements of 10 C.F.R. 50.92 in that analyzed consequences of an increased risk of fuel failure would involve a significant increase in the probability or consequences of a previously analyzed accident and involves a significant reduction in the margin of safety.
Contention 3 The staff erred in its May 6 finding of no significant hazards consideration in regard to the request of NAESCO request (sic) to change the Technical Specifications for Seabrook Station to accommodate a 24 month fuel cycle because the staff failed to analyze the effect of increasing i
the operational run by 25% with a resulting l
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I requirement for an increased reliance on on line maintenance, which may cause an increase in the probability or consequences of an accident previously analyzed, or may cause an accident not 1
previously analyzed, and which may cause a significant reduction in the margin of safety, contrary to the requirements of 50.92.
Contention 4 The staff erred in its May 6 finding of no significant hazards consideration in regard to the request of NAESCO to change the Technical Specifications for Seabrook Station to accommodate fuel cycles up to 24 months because the decreased opportunity to conduct surveillance within the areas of the plant inaccessible during normal operations may create an increased hazard as the result of the failure to timely detect abnormal or improper conditions (such as misaligned or {
mispositioned valves), which may result in an increased probability of a previously analyzed accident and which may result in a significant reduction in the margin of safety, contrary to the requirements of 10 C.F.R. 50.92.
Staff and NAESCO oppose the admission of all four l
contentions. Both assert that the contentions are invalid because they contest the staff's proposed no significant hazards consideration determination. Staff's August 10, 1998 Answer to 1
Contentions at p. 4 and NAESCO's August 10, 1998 Response to Contentions at pp. 10-11. Staff and NAESCO also oppose Contentions 2, 3, and 4 (addressing fuel, on-line maintenance practices, and other surveillance) because the contested license amendment only pertains to steam generator surveillance
. schedules. Staff's August 10, 1998 Answer to Contentions at pp.
4-6 and NAESCO's August 10, 1998 Response to Contentions at pp.
11-14. NAESCO also claims Contention 1 lacks adequate basis.
Id 2 at 7-9.
A. NAESCO's and Staff's Immediate Effectiveness Argument Staff and NAESCO take the position that because Contentions 1-4 are a challenge to staff's no significant hazards consideration, these contentions must be rejected since immediate effectiveness is not a matter which is properly before this board and is not a permissible issue for litigation in any hearing that might be held on the proposed license amendment. SAPL later contended in response to these arguments that it is not seeking a hearing prior to any issuance or effectiveness of the license amendment, but only a hearing on the underlying safety concerns presented by the four contentions. SAPL/NECNP August'1, 1998 Reply To Staff Answer To Contentions at p. 3 and SAPL/NECNP August 19, 1998 Reply To NAESCO Response To Proposed Contentions at pp. 1-2, In considering staff and NAESCO's no significant hazard arguments, we acknowledge that this board has no jurisdiction to determine whether the Seabrook license amendment should be made
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immediately. effective. The Commission's rules make clear that immediate effectiveness decisions can only be made at the discretion of staff, following staff's determination that there l
L are no significant hazards considerations involved. Sta 10 C.F.R. 50.58 (b) (6) and Vermont Yankee Nuclear Power "Coro.
(Vermont Yankee Nuclear Power Station), LBP-90-6, 31 NRC 85, 91 (1990). Nevertheless, we do not agree that SAPL's contentions should be' totally rejected because SAPL may have mistakenly
. believed it could have a hearing before this board regarding the immediate effectiveness process. SAPL arguably may have been misled by the May 6, 1998 Federal Register Notice for this proceeding which offers both an opportunity for a hearing and an opportunity to comment on the staff's immediate effectiveness determination. The language in the immediate effectiveness portion of the notice includes a statement that:
The final determination [on immediate effectiveness]
will. consider all public and State comments received before action is taken. Should the CLmmission take this action, it will publish in the Federal Register a notice of issuance and provide for opportunity for a hearing after issuance.
.63 Fed. Rec. at 25101.
.Although subject to different interpretations, this statement could be understood to mean that a hearing will be offered to contest immediate effectiveness. That interpretation is reinforced in the next paragraph where the notice offers a
o hearing opportunity for those petitioning by June 15, 1998. The fact that the hearing opportunity immediately follows the immediate effectiveness section encourages the assumption that this opportunity refers to the immediate effectiveness of the license amendment. Significantly, no clarifying statement is found in either paragraph that hearings to contest immediate effectiveness are not permissible.
However, even if SAPL was not misled by the language in the Federal Register Notice, we do not find that this technical defhet in its pleading should result in SAPL's expulsion from this proceeding. It is clear that SAPL opposes the immediate effectiveness of the license amendment, but it is also obvious that SAPL wants a hearing to oppose the amendment regardless of the immediate effectiveness determination. Sag SAPL/NECNP Reply to NAESCO Response To Proposed Contentions (August 18, 1998) at pp. 1- 2. Except perhaps for egregious pleading defects, it is not good policy to dismiss contentions merely for procedural reasons, especially I where, as here, the challenged activities !
potentially could affect public health and safety. As noted in i
Houston Lichtino and Power Co.
It is neither Congressional nor Commission policy to l J
exclude parties because the niceties of pleading were imperfectly observed. Sounder practice is to decide issues on their merits, not to avoid them by technicalities. l 1
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(
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4 (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 649
. (1979) : See also Seouovah Fuels Coro. LBP-94-8, 39 NRC 116, 119-
"129 (1994).-
'For-all'these reasons, we conclude that SAPL's pleading defect with' respect to'immediate effectiveness is not fatal to its intervention. Accordingly, SAPL's. opposition to the -l 1
immediate effectiveness of issuing the. license amendment shall be i 1
del'eted from its petition requesting a hearing in this l proceeding.
B. ' Analysis of Contention 1
'SAPL's claim in this contention is that changing the surveillance requirements for Seabrook's steam generator tube inspections from 18 to 24 months will cause increased risk of an accident. SAPL offers four bases for Contention 1:
- 1. That steam generator tubes develop cracks and other defects during service,-and, if the tube becomes thin enough, they are likely to rupture. .This event provides a pathway for Radioactive material in the primary coolant to escape into the environment, bypassing containment. According to SAPL, a wall
- loss of 40 percent or more defines a defective tube. Tubes are
. inspected at regular intervals, and tubes which have defects that might. lead to a 75% reduction in tube wall during the next
-interval are.either taken out of service (plugged) or repaired.
- 2. That increasing the interval between inspections o
increases the likelihood that a defect will grow deep enough to J lead to a steam generator tube rupture (SGTR). It makes two L
o li
_18 major arguments to support this claim. Its first argument is that the number of defects expected in the Seabrook steam generator tubes is expected to grow with increasing length of service of the steam generator. It bases this theory on NRC Inspection Report 97-03 which states that 36 tubes had been plugged at the date of that report. The report also states that
"[m)ost steam generator degradation problems have been found only after longer [than seven years) periods of operation." This leads SAPL to hypothesize that the population of defects will increase in the years to come.
Its second argument is that SGTR events show no statistical trend toward lesser frequency over past years. It bases this argument on a conclusion drawn in INEL/ EXT-98-00401, " Rates of Initiating Events at U. S. Commercial Nuclear Power Plants-1987 through 1995," (Draft dated April 1998) that "further trend analysis of SGTR frequency using the 1985 through 1997 operating experience showed no statistical evidence of a decreasing trend in the frequency of SGTR."
- 3. That a licensee letter dated June 18, 1997 entitled
" Steam Generator Tubes Plugged During the Fifth In-Service Inspection," discloses that, of the 13 tubes plugged, one had a wall loss indication of 45%, one of 55%, and one of 56%;
(b) that the Seabrook Individual Plant Examination (IPE) uses non-conservative data consisting of generic SGTR data; 1
(c) that NAESCO has "apparently redefined ' defective I tube'...";
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-19 (d) that an NRC Differing Professional Opinion states that the use of eddy current voltage signals to predict failure lacks sufficient field data to be considered valid; and
- 4. That the staff's proposal to offset the decreased frequency of inspection by tightening the allowed leakage rate from 500 gallons per day to 100 gallons per day lacks an explicit rationale. It further contends that the detection of leakage of primary coolant into secondary coolant is a standard form of on-line protection against major tube ruptures anc that there is a lack of showing by staff that the suggested measure counterbalances the increase in risk from lengthening the interval between inspections.
We find these bases adequate to satisfy the contention requirements for this proceeding. SAPL, of course is not obliged to prove its entire case at this time.
In its opposition to Contention 1, NAESCO argues that
..there is simply nothing in the proposed amendment that would redefine the present criteria for steam geaarator tube repairs."
NAESCO also argues that there is no merit to SAPL's argument that increased risk of tube rupture will result from increased intervals of service since, regardless of the length of the next planned cycle, tubes exhibiting less than 40% wall loss at a surveillance (and that are not plugged) will have been demonstrated to be sufficient to meet the 75% through-wall structural limit for the duration of the next operating cycle.
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Although there may be merit to these NAESCO arguments, they L___:__-____________ _ _ _ - _ _ _ _ - _ _
6 cannot, on their face, defeat SAPL's contention-because a petitioner is not required to try the factual merits of its case
. at'this' preliminary stage of the proceeding. Moreover, NAESCO arguments, among other things, involve factual disputes regarding Inspection. Report 97-03; INEL/ EXT-98-00401 (draft dated April 1998);.and a licensee letter dated June 18, 1997, titled " Steam Generator-Tubes Plugged During Fifth In-Service Inspection" which should not be resolved at_this preliminary pleading stage.
C. Analysis of Contentions 2, 3, and 4 These three contentions concern SAPL's allegation that there will be increased risk of offsite' radiation exposure caused by fuel cladding. rupture (Contention 2), increased online maintenance (Contention 3), and' decreased inspection in high radiation areas'(Contention 4) if the Seabrook fuel cycle is changed from 18 to 24 months. Both NAESCO and staff oppose all .
three on the basis that they do not pertain to the license amendment' application for generator tube inspection that is the subject matter of this proceeding. Both also contend that they are all. inadmissible since NRC case law requires that proposed contentions must fall within the scope of the issues set forth in the notice of hearing. NAESCO's August 10, 1998 Response to Contentions at pp. 5-6, 11-12 and Staff's August 10, 1998 Answer
- to Contentions, at pp. 4-6.
SAPL responds that Contention 2, 3, and 4 should be admitted I since, like the steam generator tube contention, they deal with
3 changing Seabrook's modes of operation to accommodate increasing the fuel cycle from 18 to 24 months. SAPL contends that
[tlo, permit the licensee to do this in small incremental requests, without ever affording the NRC an. opportunity to evaluate.the overall change from 18 month to 24 month fueling would be a classic example of segmentation, and would impair the NRC's ability (and to avoid responsibility) to provide necessary safety analysis and review of a major operational change.
SAPL claims that this type of " segmentation" of licensing actions to accommodate a 24 month fuel cycle is contrary to a series of NEPA cases holding that a federal agency may not avoid an overall review of a project by dealing with the project in
" segments." Sag Memorandum of Law Submitted by SAPL and NECNP in Support of Jointly Filed Contentions 2 Through 4 (July 9, 1998) and SAPL/NECNP Reply to NAESCO Response to Proposed Contentions (August 19,1998).
SAPL's " segmentation" argument may have merit. Federal agencies should not allow an applicant to present licensing actions separately if such separate actions are part of a common action which has greater adverse consequences when viewed as a whole. Federal courts have recognized this principle in a number of cases involving the National Environmental Policy Act (NEPA).
Egg City of Rochester v. United States Postal Service, 541 F.2d 967, 972 (2d Cir. 1976); Fritioson v. Alexander, 772 F.;2d 1225 1242-1243 (5* Cir. 1985). Although this proceeding involves safety issues under the Atomic Energy Act (AEA) rather than environmental issues under NEPA, a?guably the principal of l.
I " segmentation" should be equally applicable to AEA safety related l
cases since protection of public health and safety can be considered as at least as important as protection of the environment.
However, before we-decide this question, we request that the parties brief this issue in greater detail, and specifically address the public policy questions: (1) why the " segmentation" theory should not equally apply to the AEA; and (2) if the answer to' question (1) is "yes," why the notice of hearing for this proceeding should not be interpreted as including all safety significant activities that are affected by the increased duration of the fuel cycle. The phrties also should address SAPL's recent offer to file a NEPA contention that " Staff not only failed to perform the necessary safety analysis under the AEA; they also offered no environmental assessment under NEPA."
Egg SAPL/NECNP August 18, 1998 Reply to Staff Answer to Contentions at p. 5.
In addition, the parties should: (a) identify whether the changes required by the increased fuel cycle for Contentions 2, 3, and 4 will require license amendments for which hearing opportunities will be offered; and (b) comment on whether this licensing board has jurisdiction to consider regulatory issues which are not subject to hearings. This response should include answers to the following questions:
- t. _. . _ _ ____ - ______-_ - _____
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- 1. . With respect.to contentions 2.through 4:
- a. Why is NAESCO asking for a permanent' change to a 24 month. cycle if.it is going to return to an 18 month cycle?
- b. .If NAESCO intends to return to an 18 month cycle from a124 month fuel cycle,'when will this occur and will further license amendments be needed to authorize that action?
- 2. With. respect-to contention 2:
a.- Will a license amendment be required for Seabrook fuel =
L rods if Seabrook goes to a 24 month fuel cycle? If so, i :when will th'is. occur?
i L ~3. With respect to Contention 3 -
- a. Will changes'to.on-line maintenance require
! license amendments? If so,-when will this occur?
l b.- What are the more significant examples of increased unavailability of redundant or diverse safety systems removed from service for on-line maintenance? How does this unavailability differ between an 18-month and 24 month fuel cycle?
- 4. With respect.to Contention 4:
a-. Does decreasing the opportunity for surveillance described in Contention 4 require license amendments?-
- b. Is' Contention 4 covered by license amendment matters I
discussed in Mr. Robert Backus' letter of August 18,
1998 or.will therefalso be_ additional license amendments required for surveillance?'
After receiving.these responses, the board may schedule a
- prehearing conference to discuss these issues.if it deems one is necessary.
.V. Conclusion For the reasons set forth above, we find that SAPL has established; standing to intervene and has set forth at least one litigable contention so as to be entitled to be admitted as a party in this proceeding. NECNP's petition to intervene is rejected for failure to establish standing.
SAPL's Contention 1 regarding potential risk due to steam generator tube failure is accepted. A decision on SAPL proposed Contention 2, 3, and 4 is postponed pending receipt of additional information from the parties. This information should be received by the board on or before October 7, 1998.
VI. Discovery and Scheduling Discovery with respect to SAPL's Contention 1 shall begin immediately. The parties shall commence discussions concerning appropriate trial schedules and file a joint report with a 8 Mr. Backus.also has stated in this. letter that SAPL and NECNP request that this letter be considered a new request for a hearing as to the changes specified-in the amendment request in the August 12, 1998. Federal Register Notice. Pursuant to this request, the board is forwarding a copy of this letter to the office of the Secretary for appropriate disposition.
e suggested scheduling 15 days following the board's decision on SAPL's Contentions 2, 3, and 4.
THE ATOMIC SAFETY AND LICENSING BOARD D 4l K Pdul Cotter, frf, Chairman n
Administrative Judge
{ t j j. 9/
Dr. Charles N. Kelber Administrative Judge 0 -
Dr. Linda W. Little Administrative Judge Rockville, Maryland
-September 3, 1998 i
I f
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of NORTH ATLANTIC ENERGY SERVICE Docket No.(s) 50-443-LA
~3RPORATION s abrook Station, Unit No. 1)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing M&O LBP-98-23 DTD 9/4/98 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Office of Commission Appellate B. Paul Cotter, Jr., Chairman Adjudication Atomic Safety and Licensing Board Panel (
U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Charles N. Kelber Administrative Judge Atomic Safety and Licensing Board Panel Linda W. Little Mail Stop - T-3 F23 ASLBP U.S. Nuclear Regulatory Commission 5000 Hermitage Drive Washington, DC 20555 Raleigh, NC 27612 Steven R. Hom, Esq. Robert A. Backus, Esq.
Office of the General Counsel Backus, Meyer, Solomon, Rood & Branch Mail Stop 15 B18 P.O. Box 516 U.S. Nuclear Regulatory Commission Manchester, NH 03105 Washington, DC 20555 Lillian M. Cuoco, Esq.
Senior Nuclear Counsel Northeast Utilities Service Company P.O. Box 270 Hartford, CT 06141 Dated at Rockville, Md. this j r1 /
4 day of September 1998 DTficy of the Secretary of the Commission
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