ML20247L936
| ML20247L936 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/14/1989 |
| From: | Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#389-9189 OL, NUDOCS 8909250092 | |
| Download: ML20247L936 (15) | |
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s UiNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COW 11SSION .S9 SEP 18 Pl2:39 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 1 50-444 OL NEWHAMPSHIRE,etal. ) Off-site Emergency Planning
)
(Seabrook Station, Units 1 and 2) )
l NRC STAFF RESPONSE TO INTERVENERS' MOTION FOR LEAVE TO ADD BASES TO LOW POWER TESTING CONTENTION, TO ADMIT FURTHER CONTENTIONS, OR TO REOPEN THE RECORD AND REQUEST FOR HEARING INTRODUCTION On August 28, 1989, the Massachusetts Attorney General, Seacoast Ant.-Pollution League and New England Coalition on Nuclear Pollution
(" Interveners") filed their " Motion for Leave to Add Bases to Low Power Testing Contention Filed on July 21, 1989 and to Admit Further Contentions Arising from Low Power Testing Events or, in . the Alternative, to Reopen the Record and Second Request for Hearing" (" Motion"). Interveners seek to augment their " Motion to Admit Contention, or, in the Alternative, to Reopen the Record, and Request for Hearing," filed July 21, 1989. For the reasons discussed below, the Staff opposes Interveners' Motion.
DISCUSSION In opposing Interveners' Motion, the Staff relies upon its previous responseII to Interveners' July 21, 1989 motion as to the " suspension" of 1/ NRC Staff Response to Interveners' " Motion to Admit Contention, or in
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the Alternative, to Reopen the Record, and . Request for Hearing",
August 18, 1989 (" August 18 Response").
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4 the low power license not affording hearing rights to Interveners, 2_/ and to Interveners' failure to allege a fundamental flaw 3_/ and to satisfy both the requirements for reopening the record M and the five factor test i
for late-filed contentions. F For the reasons set forth in the August 18 Response (incorporated by reference), Interveners' Motion should be denied. In addition, the Staff specifically addresses (1) Interveners' assertion (in Interveners' " additional or clarifying points") that ' low power testing is material to licensing, and thus entitles Interveners to a hearing under Section 189(a)(1) of the Atomic Energy Act ("AEA") without seeking reopening of the record, and (2) the standards for reopening the record as applied to Interveners' new contentions and bases.
A. Low Power Testing Is Not Material To A Full Power License Interveners assert that low power testing is " per ge material to the issuance of a full power license." Motion at 6. According to l
Interveners, the Court of Appeals holding in Union of Concerned Scientists l v. U.S. Nuclear Regulatory Conaission, 735 F.2d 1437 (D.C. Cir. 1984)
("UCS"), cert. denied, 469 U.S. 1132 (1985) prohibits the NRC from requiring Interveners to meet the record reopening standard for their contentions on low power testing. Id_. Interveners' reliance on UCS is misplaced. In UCS the Court ruled that the Commission could not by regulation foreclose the litigation of matters concerning offsite emergency exercises, as the 2/ Id. at 2-6.
1 3/ Id. at 6-10.
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4/ Id. at 10-18.
5/ Id. at 18-21.
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.- j s 1 Commission had determined by regulation that the exercises were material to licensing. 735 F.2d at 1440, 1442, 1445. See San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 751 F.2d 1287,1318 (D.C. Cir.
1984) affirmed on rehearing en banc, 789 F.2d 26, 29-30, 44 (1986),
cert. denied, 479 U.S. 923 (1986), (" Mothers for Peace").
Upon rehearing en banc in Mothers for Peace, 789 F.2d at 30, the Court stated:
Union of Concerned Scientists holds only that the Commission I cannot exclude from a section 189(a) hearing issues that its rules of [ sic] regulations require it to consider in its licensing decisions. As the opinion stated: "Today, we in no way restrict the Commission's authority to [ limit the purposes for which it considers emergency exercises relevant]
as a substantive licensing sta n d ard ." 7365 F.2d at 1448 (footnote omitted). Thus, to establish, on the rationale of Unfor of Concerned Scientists, that the Commission in this case impermissible refused a hearing, petitioners must show that NRC rules or regulations required the Commission to consider the [ issue intervenor sought to raise] in deciding whether to license [the plant].
See also jd.d at 44. Here, there is no requirement in the regulations -
and naturally Interveners have cited none - that there be low power testing before a full power license is granted. 6_/ Use of 10 C.F.R.
I 50.57(c), which authorizes the application for, and issuance of a low power licen:c prior to a full power one, is strictly optional on the part 6/
The Court in UCS recognized that hearing rights in regard to preoperational testing might be quite different than hearing rights in regard to emergency exercises and distinguished the situations.
735 F.2d at 1449-50.
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I f.~ of an applicant.1/ There is no regulatory requirement that low power testing _be actually performed under a low power license. Neither a low 1
power license nor tests' under such a license are predicates for the {
issuance of a full power license. In short, unlike the emergency exercises in UCS, low power testing per jie, is not a prerequisite for a full power license, and is not material to the licensing decision.
While low power testing may be a prerequisite to operation at full power that is not the issue before the Board. The issue is whether such testing is a prerequisite to the issuance of a full power license.
Interveners have pointed to no law or regulation which requires such tests, in contrast to plans for such tests, 0! before the issuance of a l
license. As held in Commonwealth of Massachusetts v. NRC, 878 F.2d 1516, 1522 (1st Cir.1989); and Mothers for Peace, 789 F.2d at 29-30, 44; Id_.,
751 F.2d at 1314, 1318, hearing rights only attach to those actions specifically listed in section 189(a) of the Atomic Energy Act. Since low power testing is not a regulatory predicate to any action listed in that section, no hearing is required.
The Interveners also attempt to make much of the Staff's actions in regard to the June 22, 1989 incident and argue that these actions show the 1
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"An applicant may, in a case where a hearing is held in connection with a pending proceeding under this section make a motion in license l
writing, pursuant authorizing to this low-power paragraph testing..." 10 (c),
C.F.R. for anEoperating 50.57(c) (emphasis l supplied).
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See 10 C.F.R. 6 50.34(b)(6)(iii); 10 C.F.R. Part 50, Appendix B, UTterion XI. Enforcement actions can of course be taken if these tests are not perfonned or performed improperly. However, this does not make the conduct of the tests a condition of licensing.
O seriousness of t.he incident and their right to reopen the hearing. Motion at 7-11. This argument is fallacious. As the Staff has previously briefed, even if the Staff had suspended the license, neither the suspension of the license or the vacation of that suspension give these Interveners a right to a hearing. See August 18 Response at 3-6. The fact that a Staff review of this incident is taking place does not show that these matters create a basis upon which to reopen a record. See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),
CLI-86-1, 23 NRC 1, 5(19861 (holding that even an NRC Office of Investigation investigation provides no ground to reopen a record). Staff action in determining whether enforcement action is appropriate is not evidence of the existance of a significant safety issue. Id.El d Indeed, concluding that Staff enforcement actions gives third parties a right to a hearing could - in the long run - be counter-productive to Staff strictly enforcing the regulations and inimical to the safety of the public. See Public Service Co. of New Hampshire (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10,11 NRC 438, 441 (1980). The Staff's I
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Further to the extent the Interveners maintain that they can litigate the purported suspension of the low power license in this proceeding they are again mistaken. See Motion at 9. This Board may only consider the licensing matters delegated to it and may not consider ancillary enforcement matters. See Metropolitan Edison Co. (Three Hile Island Nuclear Station, Unit No. 1) CLI-82-31 16 NRC 1236, 1238-39(1982).
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actions give no rights to reopen the record in the licensing proceedings. El l
Interveners do not have an absolute right to a hearing on low power testing under Section 189(a) of the AEA, as such testing is not a prerequisite to the grant of a full power license. Interveners' l
l contentions and bases on low power testing are subject to the reopening the record standards of 10 C.F.R. 2.734.
, B. Interveners' Motion Does Not Meet The Requirements For Reopening The Record Interveners have not demonstrated that the contentions and additional bases submitted with their Motion meet the criteria for reopening the record set forth in 10 C.F.R. I 2.734(a). El As noted above, the Staff 10/ Interveners ascribe conjured reasons for Staff action at 10 and 11 of their Motion. At 10 they state the Staff's review of Applicants' remedial actions can only be connected to the issuance of a full power license. This ignores the Staff's enforcement duties irrespective of whether a full power license is issued. In Waterford, supra, the Commission held that Staff review of matters cannot be a ground to reopen a record. At 11, the statement appears that the Staff has precluded the Applicants from further licensing {
activities "thus acknowledging by its actions that the issues raised I affect the decision to license to operate." Again Interveners are wrong. The Staff has not reached such a determination. As has been stated, giving third parties hearing rights on every enforcement q action might be inimical to safety. j 11/ The Interveners again argue that the adoption of 10 C.F.R. 5 2.734 was contrary to the court's holding in UCS. Motion at 6 - 7. In UCS the court stated that the Comission cEd limit issues raised late in a licensing proceeding to those significant and material to the licensing determination. 735 F.2d 1447-49. The Comission's regulations in 10 C.F.R. I 2.734 were adopted subsequent to UCS, as well as the Mothers for Peace case cited in the Statement of Consideration on adoption of the regulation. 51 Fed. Reg. 19535 (May 30,1986). In Mothers for Peace, 751 F.2d 1318, the Court found that (FOOTNOTECONTINUEDONNEXTPAGE) l l
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generally relies on its August 18 Response to demonstrate that Interveners i do not meet the 10 C.F.R. 5 2.734 standards for reopening the record - in particular, in. the instant Motion, they have shown neither safety significance nor the likelihood of a different result. E l The first criterion to be considered upon a motion to reopen a record is timeliness. 10 C.F.R. 6 2.734(a)(1). The Interveners point to the prompt filing of the motion after the Staff's issuance of the Augmented 1
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE the standards such as those set out in 10 C.F.R. 9 2.734(a) were properly applied to motions to reopen a record over intervenor's objections that they were contrary to the provisions of 189(a) of the Atomic Energy Act. In Oystershell Alliance v. NRC, 800 F.2d 1201, 1207 (D.C. Cir.1986), the court particularly set out the standards like those incorporated in 10 C.F.R. $ 2.734(a) and found they might properly applied to motions to reopen a record.
10 C.F.R. 5 2.734 is contrary to the provision::Plainly,(nothing of 189 a) of their, Atomic Energy Act.
Further, one cannot maintain a regulation is invalid in an adjudicatory proceeding as Interveners seek to do here. 10 C.F.R.
I 2.758(a); Metropolitan Edison Co. (Three Mile Island Station, Unit 2), ALAB-456, 7 NRC 63, 65(1978); Carolina Power and Light Co.
(Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 544 (1986).
'"-12/ As set forth in the Staff's August 18 Response, contentions concerning low power testing must also allege a fundamental flaw in the plans for preoperational testing and initial operations. August 18 Response at 6-10; see 10 C.F.R. 5 50.34(b)(6)(iii). In sumary, the standard adopted by the Commission for emergency exercises, that a hearing would be restricted "to determining if the exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e.,
fundamental flaws in the plan" (Long Island Lighting Co. (Shorehan Nuclear Power Station, Unit 1), CLI-86-11, 23 NRC 577, 581 (1986)),
is equally applicable to any litigation arising from low power testing. In both instances the evolutions are performed near the end of the full power licensing process and serve.to validate previously approved plans required by the regulations. See n.8, supra. '
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Inspection Team (AIT) Report to show timeliness. Motion at 12-13.
However, the prompt filing of a contention after the issuance of another i Staff report does not of itself show timeliness. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041,1045-48 (1983).
The question is whether the information on which to base the contention could have been learned earlier. I, d . As the Applicant's analysis shows the information on which Interveners base the new contentions they submit was at hand earlier. E The fact that the recently issued Staff AIT Report is recited in the formulation of the prolix contentions is no grcund to determine that they could not have been formulated sooner.
The Interveners' announced intention to file further contentions on any documents the Staff issues in the future, makes it particularly important that any material in contentions based on those issuances is not such that the contentions could have been filed earlier. See Catawba, at 1048. An examination of the substantive matters in the newly proffered contentions and previously available information shows they are untimely.
Further, the Interveners have not met the criteria in 10 C.F.R.
f 2.734(a)(2) and (3) for reopening the record to admit these further contentions. Their only statements of why the proffered contention l
1 addresses " safety significant issues" do not pertain to the matters set out in the proffered contentions concerning generalized failures in training, maintenance or quality assurance, but only pertain to the Staff's statements that individual actions on June 22, 1989 were safety 13/ Applicant's Response to " Interveners' Motion, etc." September 11 1989, at 4-5.
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- J significant. This is not the showing that a "significant safety issue" exists upon which further hearings should be conducted. E See i Pacific Gas and Electric Co. (Diablo Canyon Nuclear Plant, Units 1 and 2),
ALAB-756, 18 NRC 1340, 1344-45 (1983).
Similarly, the Motion does not " demonstrate that a materfally different result would be . . . likely had the newly proffered evidence been considered initially." 10 C.F.R. 5 2.734(a)(3). The Motion only sets out conclusory statements. Motion at 19-20. The Interveners have not met the heavy burden they have in seeking to reopen the record. See, 1
Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),
CLI-86-1, 23 NRC 1, 5 (1986).
The regulation requires that "[e]ach of the criteria must be l
l separately addressed, with a specific explanation of why it has been met."
i l 10 C.F.R. 5 2.734(b) (emphasis added). Interveners have not even attempted to comply with the regulation in regard to 10 C.F.R. 6 2.734(a)(2) and (3). In the body of their Motion they do little more than summarize their contentions and bases, and then state flatly that the issues raised are significant to safety and would have led to a materially i
different result. Motion at 17-19. This does not constitute the
" specific explanation" called for by the regulation. Interveners also '
refer to "the specific factual and/or technical bases" which allegedly support their claims that the issues are significant to safety and would likely produce a different result. Motion at 18-19. According to 14/ As we show in the following section, the quality assurance questions are not of such a pervasive nature as to cause the reopening of the record.
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. Interveners, these bases are to be found in the supporting affidavit'EI and in the body of the bases and contentions. Jd.
But neither the contentions nor the bases demonstrate that Interrenors have carried their heavy burden in seeking to reopen the record. Nowhere in the contentions or bases do the Interveners address the criterion that a materially different result would be likely. The only mention of the significant-to-safety criterion is a reference to the failure to trip the reactor on June 22, and the totally uninformative statement: "This failure is safety significant." Exhibit I to Motion at 24.-
As noted by the Appeal Board, "the Commission expects its adjudicatory boards to enforce the section 2.734 requirements rigorously -
i.e., to reject out-of-hand reopening motions that do not meet those requirements within their four corners." Public Service Co. of New l Hampshire (Seabrook Station Units 1 and 2), ALAB-915, 29 NRC 427, 432 (1989). Interveners' Motion does not meet those requirements and should 1'
be rejected.
C. The Proffered Contentions Do Not Allege Matters Subject 10 Litigation.
Under 10 C.F.R. f 2.734(d) a motion to reopen a record must satisfy the requirements for contentions. As Union Electric Co. (Callaway Plant.
Unit 1), ALAB-740, 18 NRC 343, 346 (1983), and Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), ALAB-875, J.5/
5 Supplemental Joint Affidavit of Gregory C. Minor and Steven C. Sho11y Regarding the Events of 22 June 1989 During Low Power Testing at Seabrook Unit 1 (" Suppl. Aff.").
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26 NRC 252, 268-69 (1987), provide contentions may not be based upon isolated incidents, but whether flaws found may be "so pervasive as to raise legitimate doubt about the integrity of the facility and its safety !
related structures." See Lono island Light.ing Co. (Shoreham Nuclear Power Station), ALAB-903, 28 NRC 499, 507 (1988); UCS 735 F.2d at 1448. In the Callaway case the Appeal Board was particularly dealing with the inability ,
to proffer a contention based on isolated instances of failures in the applicants' cuality assurance programs. An examination of the Interveners' contentions and the amended contentions reveals that they all allege a failure to meet the quality assurance regulations (10 C.F.R. Part 50, Appendix B), based on a single incident on June 22, 1989. See Proffered Contentions JI-LP-IF, G & H, JI-LP-2, JI-LP-3. E The effidavit submitted in support of the Motion similarly only points to possible violations of the quality assurance regulations in Appendix B to Part 50 arising in one incident as a source of the contentions. See Suppl. Aff. if 7-10, 13, 16, and 18. The Interveners in their contentions do not show any pervasive flaws but only an incident during one test. And although deficiencies may be shown in that test, that test of itself, does 16/ Proffered contention JI-LP-3 also cites 10 C.F.R. 6 50.34(b)(6)(iii),
which requires that the FSAR contain plans for preoperatisnal testing, and various criteria in 10 C.F.R., Part 50 Appendix A, which requires testing of certain systems and components (many of which are completely unrelated to the natural circulation test here involved. See ea Criterion 18 on electrical power systans ,
Criterion 43 on containment atmosphere cleanup and Criterion 53 on containment testing). However, it is basically a failure of quality assurance / quality control in relation to the single test that is alleged.
f- 12 not show that safety significant questions are raised which may affect l licensing. E/ See Callaway; Seabrook; Shoreham. E l _
l CONCLUSION For the reasons set forth above and in the Staff's August 18 Response, Interveners' Motion'should be denied.
1 Respectfully submitted, Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland this 14th day of September 1989
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17/ It is also alleged in many of the proffered contentions that training was not sufficient. As recognized in Public Service of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 485-86(1986), defects in training revealed in exercises are not fundamental flaws which can provide the basis for a contention on emergency plans. Similarly, deficiencies in training revealed during a low power test do not show a pervasive defect that can premise a contention.
18/ The recent amendments to 10 C.F.R. 6 2.714 (54 Fed. Reg. 33168, August 12,1989), particularly provide that a contention may not be admitted if it "would not entitle petitioner to relief." 10 C.F.R. 52.714(d)(2)(ii).
!g.(i. U UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 SEP 18 P12:39 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD tv In the Matter of ) bw.i ' i l ) Docket Nos. 50-443 Of
- PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, et al_. ) Off-site Emergency Planning
)
(Seabrook Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENERS' MOTION FOR LEAVE TO ADD BASES TO LOW POWER TESTING CONTENTION, TO ADMIT FURTHER CONTENTIONS, OR TO REOPEN THE RECORD AND REQUEST COR HEARING" in the above captionod proceeding have been served on the follow.tj by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatcry Comission's internal mail system, this 14th day of September 1989:
IvanW. Smith, Chairman (2)* Philip Ahrens, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Comission State House Station Washington, DC 20555 Augusta, ME 04333 Richard F. Cole
- John Traficonte, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, DC 20555 Boston, MA 02108 Kenneth A. McCollom Geoffrey Huntington, Esq.
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater, OK 74705 25 Capitol Street ,
Concord, NH 03301 i Thomas G. Dignan, Jr., Esq.
Robert K. Gad, III, Esq. Diane Curran, Esq.
Ropes & Gray Hannon, Curran & Tousley One International Place 2001 S Street, NW Boston, MA 02110-2624 Suite 430 Washington, DC 20009 Robert A. Backus, Esq.
Backus, Meyer & Solomon 116 Lowell Street Manchester, NH 03106
)
i H. J. Flynn, Esq. Judith H. Mizner, Esq.
Assistant Ceneral Counsel 79 State Street Federal Emergency Management Agency Newburyport, MA 01950 600 C Street, S.W.
Washington, DC 20472 Robert Carrigg, ohairman Board of Selectmen f Paul McEachern, Esq. Town Office 1 Shaines & McEachern Atlantic Avenue 25 Maplewood Avenue' North Hampton, NH 03862 P.O. Box 360 Portsmouth, NH 03801 William S. Lord Board of Selectmen Charles P. Graham, Esq. Town Hall - Friend Street McKay, Murphy & Graham Amesbury, MA 01913 100 Main Street Amesbury, MA 01913 Mrs. Anne E. Goodman, Chairman Board of Selectmen Sandra Gavutis, Chairman 13-15 Newmarket Road Board of Selectmen Durham, NH 03824 RFD #1, Box 1154 Kensington, NH 03827 Kensington, NH 03827 Hon. Gordon J. Humphrey Calvin A. Canney United States Senate City Hall 531 Hart Senate Office Building 126 Daniel Street Washington, DC 20510 Portsmouth, NH 03801 Richard R. Donovan R. Scott Hill-Whilton, Esq. Federal Emergency Management Lagoulis, Clark, Hill-Whilton Agency
& McGuire Federal Regional Center 79 State Street 130 228th Street, S.W.
Newburyport, MA 01950 Bothell, Washington 98021-9796 Allen Lampert Peter J. Matthews, Mayor Civil Defense Director City Hall Town of Brentwood Newburyport, MA 01950 20 Franklin l Exeter, NH 03833 Michael Santosuosso, Chairman Board of Selectmen William Armstrons South Hampton, NH 03827 Civil Defense Director Ashod N. Amirian, Esq.
i Town of Exeter I 10 Front Street Town Counsel for Merrimac
! Exeter, NH 03833 145 South Main Street P.O. Box 38 Gary W. Holmes, Esq. Bradford, MA 01835 Holmes & Ellis 47 Winnacunnet Road Barbara J. Saint Andre, Esq.
Hampton, NH 03842 Kopelman and Paige P.C.
77 Franklin Street Boston, MA 02110 '
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l Ms. Suzanne Breiseth J. P. Nadeau
! Board of Selectmen Board of Selectmen Town of Hampton Falls 10 Central Street Drinkwater Road Rye, NH 03870 l Hampton Falls, NH 03844 Atomic Safety and Licensing Robert R. Pierce, Esq.* Board Panel (1)*
l Atomic Safety and Licensing U.S. Nuclear Regulatory Commissioe l
Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Samuel J. Chilk*
Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Panel (6)* Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Comission e Washington, DC 20555 Ricnard G. Bachmann Counsel for NRC Staff I
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