ML20248J333
| ML20248J333 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/12/1989 |
| From: | Cole R Atomic Safety and Licensing Board Panel |
| To: | MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| References | |
| CON-#489-9290 82-471-02-OL, 82-471-2-OL, LBP-89-28, OL, NUDOCS 8910180081 | |
| Download: ML20248J333 (59) | |
Text
{{#Wiki_filter:}. '~L, ~ r LBP-89-28 i UNITED STATES OF AMERICA-f NUCLEAR REGULATORY COMMISSION '89 OCT 12 P12:34 l ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: jfi{ Ivan W. Smith, Chairman .!ERVED 0GT 12 55 Dr. Richard F. Cole Dr. Kenneth A. McCollom In the Matter of i PUBLIC SERVICE COMPANY OF Docket Nos. 50-443-OL NEW HAMPSHIRE, at A1 50-444-OL (Seabrook Station, (Offsite Emergency Units 1 and 2) Planning) ASLBP No. 82-471-02-OL October 12, 1989 MEMORANDUM AND ORDER (Denying Interveners' Motions to Admit Low Power Testing Contentions and Bases or to Reopen the Record, and Requests for Hearing) INTRODUCTION On June 22, 1989, during low power testing, the Seabrook reactor, operated by New Hampshire Yankee (NHY), initiated a natural circulation test which called for a manual trip of the reactor if the pressurizer water level were to fall below 17 percent. During the test the water level fell below 17 percent, but the reactor was not tripped until about seven m'in6tes later despite the fact teat the operators were aware that the test limit was exceeded. On i June 23, NRC Region I issued a Confirmatory Action Letter 8910180001 891012 PDR ADOCK 05000443 O PDR 390
e ,l i - 1 i i (CAL) confirming its under' standing with NHY that it would obtain the concurrence of the Administrator of Region I before any restart following a complete review of the event. The circumstances surrounding this event form the bases for many pleadings including two motions suomitted by the Massachusetts Attorney General (for the Joint Interveners) i to admit contentions, bases, or to reopen the record for a hearing on the matter.1 In short, the first motion with its 1The relevant pleadings to date are: Interveners' Motion to Admit Contention, Or, In the Alternative, to Reopen the Record, And Request for Hearing, July 21, 1989 (Interveners' Motion). Applicants' Answer to (Interveners' Motion], August 7, 1989 (Applicants' Answer). NRC Staff Response to '[TMtervenors Motion], August 18, 1989 (NRC' Staff Response). Interveners' 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, August 28, 1989 (Interveners' Second Motion). l 1 Intervenor's Motion to Admit Reply to Applicants' and I Staff's Response to (Interveners Motion], September 1, 1989. (Motion to Admit Reply). Applicants' Response to (Interveners' Second Motion), September 11, 1989 (Applicants' Response to Second Motion). l Applicants' Response to (Motion to Admit Reply], September 11, 1989 (Applicants Response to Motion to Admit Reply). ] ~ l NRC Staff Response to (Interveners' Second Motion], ] j September 14, 1989. i i NRC Staff Response to (Motion to Admit Reply],"Septenber 14, 1989.
4 i single contention charges that the June 22 event . demonstrates that Applicants' plant operators and management are not adequately trained or qualified, and that they lack adequate managerial and administrative controls to operate the' facility at any level of power. The second motion supplements and repeats the first, and adds two more contentions. It is discussed separately below. The Massachusetts Attorney General seeks a hearing on the matter under three theories. The first casts the Region I Confirmatory Action Letter as a new " proceeding" Interveners' Informational Supplement to Their Low-Power Contentions Filed on July 21 and August 28, 1989, September 19, 1989. i Mass AG's Motion for. Leave to file --a-Reply to the. Applicants' and Staff's Response to Interveners' August 28, 1989 Motion to Add Bases and Further Low-Power Testing Contentions, September 19, 1989 and Reply (to same], September 19, 1989. Interveners' Second Informational Supplement to Their Low-Power Contentions filed on July 21 and August 28, 1989, September 22, 1989. On September 26, 1989 the. Board issued a Memorandum and Order commenting on the unprecedented number of Attorney General pleadings not authorized by the NRC Rules of Practice. We excused all parties from responding to unauthorized pleadings, including replies to motions, unless the Board invites such responses. That resulted in the filing of Interveners' Motion for Reconsideration of the l Order, September 28, 1989. l NRC Staff Response to " Mass AG's Motiun for Leave fo File a Reply to the Applicants' and Staff's Responses to Interveners' [Second Motion]," October 4, 1989. Applicants' Response to Interveners' Motion for' Reconsideration, October 4, 1989.
o " i suspending the Seabrook lo'w-power operating license, thus affording the Attorney General a right to a hearing pursuant to Section 189(a) of the Atomic Energy Act. Under the ) " suspension" theory, the Massachusetts Attorney General l l would be entitled to a hearing as a matter of right without meeting any additional procedural requirements such as moving to reopen the record. Interveners' Motion at 4-8. The second theory asserts that since the commission must find that operator and management training and procedures are adequate before an operating license may be granted,2 such a finding is " material" to the issuance of the license, therefore a hearing is required pursuant to the holding of Union of Concerned Scientists v. NRC, 735 F.2d l l 1437, 1443 (D.C. Cir.~1984).
- 14. at'8-9.
. l l Interveners' Motion alternatively seeks to reopen the j 1 evidentiary record (closed June 30, 1989) of the full power i operating license proceeding pursuant to the provisions of l 10 C.F.R. S 2.734 under a third theory -- 12e., the low power events alleged in the contention are relevant to the 1 .f grant of a full-power license. Id. at 8-10, 12-25. ^ Applicants contest Interveners' Motion on all fronts. First, according to Applicants, there has been no license suspension. The CAL is not a license suspension; no hearing rights ensue from it. In any event, the Massachusetts l 2Citina San Luis Obisoo Mothers for Peace v. NRC, 751 F.2d 1287, 1309 (D.C. Cir. 1984). i I 1
L l Attorney General would have no absolute right to a hearing even if the CAL were a license suspension. Applicants' Answer at 9-16. Applicants' reject the notion that U23 confers any hearing right upon Interveners because, among other reasons,.the contention is late filed. Id. at 14. Responding to the argument by the Massachusetts Attorney General that the evidentiary record on the full power proceeding should be reopened, Applicants address the regulatory requirements for motions to reopen set out under 10 C.F.R. S 2.734. Applicants argue that the Interveners' motion does not address a significant safety issue nor does it satisfy the "five factor" test for late-filed contentions as required by the rule. Id. at 17-25. Finally, Applicants counter the Massachusetts Attorney' General's jurisdictional claims with the argument that neither this nor any other licensing board has jurisdiction over the subject matter of the motion. Id. at 25-28. Applicants also provided its response to the Confirmatory Action Letter and other factual information in support of its analysis of the significance of the June 22 event. Attachments to Applicants' Answer. The NRC Staff responded with a factual and legal analysis of the Massachusetts Attorney General's " suspension proceeding" theory; The CAL is not a suspension order and, even if it were, the Massachusetts Attorney General has no right to a hearing on it. NRC Staff Response a,t 2-6. With respect to Interveners' second theory of the case, the Staff
. urges the Board to apply a' " fundamental flaw" test to the contention as in Lona Island Lichtina Co. (Shoreham Station), CLI-86-11, 23 NRC 577, 581 (1986), and in ALAB-903, 28 NRC 499, 505 (1988). NRC Staff Response at 6-10. I The Staff provides a detailed legal analysis of the requirements to reopen a record under 10 C.F.R. S 2.734 supported by an extensive factual account of the June 22 events at Seabrook. NRC Staff Response at 10-21.
- Finally, the Staff does not concur in Applicants' jurisdictional arguments except to the extent Applicants argued that this Board has no jurisdiction in regard to a suspension of the low power license.
NRC Staff Response at 21 n.8. We turn first to the question of jurisdiction. ~ JURISDICTION The Massachusetts Attorney General states simply that this Board has jurisdiction over all issues raised in the contention, citina ALAB-916, 29 NRC 434 (1989), in this proceeding. Applicants contend however, that all that the Appeal Board held in ALAB-916 was that, at the time a certain contention was filed concerning the onsite exercise, some licensing board must have had jurisdiction and that.this licensing board stood in the shoes of the original licensing board at the time the filing was made. Thus, all that ALAB-916 can be read as holding is that this Licensing Board - - - - - - - - - - - - - - - - - - - - - - - - ~ - - -
4 pV L,f x ,7,. -has jurisdiction to entertain and decide the motion.
- According to' Applicants, ALAB-916-does not answer the
-question of-whether any licensing board can in fact exercise /& jurisdiction over the proffered contention and that the contention'does.not relate to any emergency plan or its-exercise. Rather, it is in the nature of a technical qualifications contention which should:have been raised, if at all,' prior to the time that the Licensing Boards concluded their efforts on the low power license and sent that aspect of the proceeding on to the Appeal Board, the n( Commission, and now the United States Court of Appeals for the District of Columbia Circuit. Applicants maintain, therefore, that the contention simply is no longer litigable -in light of the fact that the Commission has taken final agency action with respect to the low power license which encompasses the subject matter of this contention. Citina 10 C.F.R.. $ 2.717 (a) and Houston Licht and Power Co. (South Texas Project, Unit Nos. 1 and 2), ALAB-381, 5 NRC 582, 590-91, 593 (1977). Applicants' Answer.at 26. Thus, we understand Applicants' argument to -be that, while this Board is the right forum to entertain the action, it is the wrong forum to evaluate the merits of the contention;'that once the Commission issues a low power license, the only avenue left to the Massachusetts Attorney j General is through the filing of a request unde,r 10 C.F.R. 5 2.206. l .t
L ~ - l Applicants continue their jurisdictional argument by recalling to the Board's attention that, in September 1982, q the Licensing Board admitted for litigation in the Seabrook 1 operating License proceeding the following contention-l denominated NH-13: The Applicant has not demonstrated that the following and all other operations personnel are. qualified and properly trained.in j accordance with NUREG-0737, Items I.A.1.1, ) I.A.2.1, I.A.2.3, II.B.4, I.C.1 and Appendix C: (a) Station Manager, (b) Assistant Station Manager, (c) Senior Reactor Operators, (d) l Reactor Operators, and (e) Shift Technical Advisors. s 1 Summary Disposition was granted with respect to this -{ 4 contention on May 11, 1983.3 At the time the contention was 1 admitted and when it was disposed of the Massachusetts Attorney General, -SAPL,' and 'NECNP Vere all parties. to the proceeding against whom ran iudicata would operate. l l For its part, the Staff argues that the Appeal Board in ALAB-916, supra, 29 NRC at 438-39, ruled that this Board has j jurisdiction over all issues but those explicitly given to l other licensing boards. The matters on which Interveners l seek to reopen the record in regard to the issuance of the full power license is not before other boards and is, hence, before this Board. Further, the Staff is correct in its view that the doctrine of Egg iudicata', although applicable I I 3Memorandum and order (unpublished) (Memorializing Prehearing Conference and Ruling on Motions for' Summary Disposition) at 14-18 (May 11, 1983). 1l' l
yy-yt2 3 - to'NRC adjudications, does not apply here. The events of h June.22, 1989 giving rise to the instant contention was not and could not have.been the basis for Contention NH-13 summarily dismissed'by the Board in 1983. As Applicants acknowledge, at'27 n.66 of their Answer, the doctrine of Igg ludicata has limited applicability in administrative proceedings where there are changed circumstances. 333' Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 216 (1974). We believe that Staff's view on the issue of' jurisdiction and rag iudicata in regard to matters relevant to the~ issuance of a full power license is the better one. In addition, as we find below, the Staff is correct in i arguing that Interveners' request (Motion at 3) that further low power testing remain suspended is beyond the jurisdiction of this Board as is any facet of an enforcement action in this proceeding. We address that aspect of jurisdiction in the following section. SUSPENSION OR CONFIRMATORY ACTION? Low power testing of the Seabrook Station has been halted and the Applicants have committed to the NRC that this testing wil.1 not be resumed without the prior approval of the Region I Administrator. As we noted above, a Confirmatory Action Letter (CAL) memorializes the NRC understanding with NHY. The Attorney General argues that 1 - _= l
. l this action should be regarded as the equivalent of initiating a proceeding to " suspend" Applicants' low power license. Interveners' Motion at 4-8. According to the Attorney General, because Section 189a of the Atomic Energy Act expressly lists a license suspension as one of the proceedings giving rise to a hearing, Interveners are entitled as a matter of law to a hearing on all issues set out in the contention without meeting any further procedural requirements such as seeking to reopen the record recently closed. Id. at 6-7. The Staff asserts that, in fact, the Commission has not suspended Applicants' low-power license. Rather, Applicants voluntarily ceased operations in light of the June 22, 1989 event, and have committed not 1x) resume low power testing Without first obtaining the approval of the Staff.4 For their part, Applicants point out that the CAL had none of the legal elements of a license suspension. An NRC license may be suspended, except in an emergency or for a willful violation, only after the issuance of a notice of violation, j ( after an opportunity for the licensee to answer the notice, I then by an order to shew cause followed by an opportunity for a hearing by the licensee. 10 C.F.R. SS 2.201(a)-(b), 2.202(a)-(3). ) 4Egg Confirmatory Action Letter from William T. Russell, Region I Administrator to Applicants,,at 1 (attached to letter from Edwin J. Reis to Board, June 26, 1989). e w
...As'was made clear rec'entlyfin commonwealth of Massachusetts v2'NRC, 878.F.2d 1516,1521-22 (1st Cir.11989), cited by the Massachusetts Attorney General-(Interveners' Motion at 6),' labels alone will.not determine whether a . license has-been revoked or suspended da facto. Even so, the court's' articulation of this well established principle 'in Co==anwealth v. NRC offers little' solace to the Massachusetts Att'orney General-here. In that case the court i was not. deciding:whether a CAL could amount to, or under the facts oflthat case, had amounted to a license suspension. The. issue'there was whether there was a' reinstatement of a license, an action which does not afford to the commonwealth any right to a hearing in that a reinstatement is not included among those matters sht ou't'in Section 189(a) of .l the Atomic Energy Act. Commonwealth, supra, at 1522. .Indeed, if any part of the Massachusetts Attorney General's " suspension" theory is correct, the hearing he seeks is not to suspend any license -- he contends that it .has already been suspended. In essence he seeks a hearing to oppose any lifting of any " suspension." Putting aside the fact that a " lifting" of the " suspension" has yet to be proposed, he must be aware, by citing to Mothers for Peace, supra,-751 F.2d at 1314, that Section 189(a) of the Act does ~ not provide for a hearing on the liftino of a suspension. Interveners' Motion at 4-5 n.1. 6
W ~ We accept the Confirmatory Action Letter at face value;- it.is not a suspension withinLthe meaning.of.the Act and no hearing rights ensue from it to the Interveners.. But even if the CAL were construed as a da fagig suspension,EIntervenors would still be in the wrong. forum. Enforcement proceedings, including license suspension actions, are brought under Part 2, Subpart B. Such 7 proceedings are initiated only by order of the Commission, which in' turn,' depends on a request for:a hearing by the affected licensee. Sag 10 C.F.R. S 2.202(c). Licensing Boards do not have the authority to become involved in an enforcement matter'until a hearing is requested by the person charged and ordered by the Commission. Metropolitan Edison Comnany (Three Mi-le Island Unit 1), CLI-82-31, 16 NRC 1236, 1238 (1982) (Commission vacates Board order imposing monetary penalty). Jurisdiction of a licensing board ' extends only to those matters encompassed in the. Commission's notice of hearing, gag., Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979), or those matters raised gun sconte in accordance with-10 C.F.R. S 2.760a. The Interveners do not even suggest that the Commission has especially delegated to this Board any authority in enforcement matters involving the Seabrook Station. Thus the motion poses a conundrum. If we were to accept the Massachusetts Attorney General's " suspension" theory, such acceptance would deprive this l.
7 ] l- ? .. 2 Board of the very jurisdiction the Massachusetts Attorney General seeks to invoke. Moreover, as the Attorney General l should know well,'only the person who will be adversely affected by the proposed action, in this case the licensee, would have the right to participate in an enforcement proceeding. Bellotti v. NRC, 725 F.2d 1380, 1382 (D.C. Cir. 1983). Therefore the Interveners do not have a right to initiate or participate in a " suspension" hearing on the events of June 22 under Section 189(a) of the Atomic Energy Act. WnrrnER UCS'AND MOTHERS FOR PEACE CONFER HEARING RIGHTS In the alternative, the Massachusetts Attorney General argues that Interveners are entitled to a hearing on the proffered contention, as of right, under doctrines announced i in San Luis Obisco Mothers for Peace, supra, 751 F.2d 1287, 1 l 1309, and Union of Concerned Scientists, supra, 735 F.2d 1437, 1443. Interveners' Motion at 8-10. As noted in the l l Introduction, the Massachusetts Attorney General argues I that, since the Commission by regulation requires adequate operator training, management, procedures and performance before a full power operating license can issue, there is an absolute hearing right granted to interveners on these matters under UCE and Mothers for Peace. The a,rgument is augmented by the claim that since the NRC has " suspended" l I 1L -
k, further plant operations it ADE level until there is a full examination and corrective action" the NRC has operationally demonstrated that the issues proffered in the contention are material:and. relevant to the grant of a full-power license, citing UGE, 3Mgrg, 735 F.2d at 1443. Applicants respond that, even assuming that there is an absolute right to seek a hearing on.such matters, it must be exercised at the time the original notice for an operating license hearing issues. That time has long since passed. Now the contention is both late filed, and being filed in a proceeding where the evidentiary record is closed.. Public Service Comeany of New Hamnshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 480 (1989), citina Duke Power C2. ' (Catawba, Units l' and 2), -CLI-83-19, 17 NRC 1041. Therefore, according to Applicants, Ugg does not relieve the Massachusetts Attorney General of his burden to satisfy the criteria of 10 C.F.R. 5 2.734 for reopening an evidentiary . record. For the reasons set out below, we arrive at the; same conclusion. Interveners argue that Ugg and Mothers for Peace should be read as overriding the 10 C.F.R. S 2.734 standards for reopening a matter which is material to licensing. Interveners' Motion at 11-12. The Attorney General cites excerpts from these two cases for the proposition that the court was essentially declaring invalid the Commission's rule with respect to reopening closed records, at least ~ l l
e"I, .f b .'y., insofar as exercise contentions were concerned. However, we 1 agree lwith' Applicants that the only regulation Ugs addressed was110 C.F.R.fS 2.206 which the Court noted is a rule of ) 1 " unfettered' discretion" which is to be compared with reasonable procedural rules for accepting. issues for NRC. a litigationfsuch.as Sections 2.714 and 2.734. HQE, suora, 735 F.2d at 1449.. Mothers for Peace discussed the. case law establishing one'of the then-extant two " decision-generated" c L standards.for reopening -- the one was one which required. the movant to show that a different result would obtain. E.dl., 751 - F. 2d at 1316. and n.167. In any event, whatever the holding of Mothers for Peace, Applicants remind us that Section 2.734 was adopted after, and with cognizance of that case.5 Interveners contend also that the successful completion of low power testing is a prerequisite to the issuance of a full power license and argue, therefore, for an absolute right to a hearing.under Ugs by virtue of that concept alone. Interveners' Motion at-9. This is an argument previously made to this Board. We saw no need to address the point before because there was no contention (thus no jurisdiction) before us to consider. Now however, it is time to put an end -to. the almost frivolous argument. that UCE ~ 5Applicants' Answer at 15, citina 10 C.F.R. S 2.734 (a) (3); Statement of Consideration, 51 Fed. Reg. l ~ 19539 (May 30, 1986). .___m_._._
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1 i . 1 1 I requires that low power t6 sting must be satisfactorily completed before full power licensina. Obviously, as l Applicants have argued, it is full power ascension that must await satisfactory low-power testing. Whether or not a utility seeks a license to operate at low power before the 1 grant of a full power license is solely within the l i discretion of the utility. Indeed, as Applicants wishfully { observe, they would have been free to " sit on the low power license and await the issuance of a full power license." i 1 Applicants' Answer at 16. Accordingly we rule that the i massachusetts Attorney General's argument that Applicants .must demonstrate competence at low power operation before the issuance of a full power license is without merit. i l The NRC Staff addresses Interveners' argument,that they are entitled to a hearing on matters " material" to licensing ) with a new, but well reasoned twist. NRC Staff Response I at 6. Assuming that Interveners' claim to a right to a hearing is correct (a proposition the Staff believes to be dubious), their proffered contention does not pass muster. I In Ugg, suora, 735 F.2d at 1447-49, the Circuit Court held that litigation of contentions that involve issues arising late in the proceeding could be limited by the 3 i Commission to those m.aterial to the decision, 12e.,. " fundamental flaws," in contrast to minor or ad h22 problems. In Lona Island Lichtina Co. (Shoreham Nuclear Power Station), CLI-86-11, 23 NRC 577, 581 (1986), the 1
_ 17 - Commission adopted the Egg standard, stating: "Since only fundamental flaws are material licensing issues, the hearing may be restricted to those issues." Also in the Shoreham proceeding, the Appeal Board further defined a fundamental flaw as one that " reflects a failure of an essential element of the plan" which can be remedied "only by a significant revision of the plan." ALAB-903, 28 NRC 499, 505 (1988). In the onsite phase of this proceeding, ALAB-918, 29 NRC 473, 485-486 (1989), the Appeal Board stated that where " problems are readily corrected by providing supplemental training to some of applicants' personnel, such training does not involve any revision, much less a significant one, of the emergency plan." Therefore such problema could not be characterized as " fundamental flaws." Id. The Staff acknowledges that the Mgg, and Shoreham cases, and ALAB-918, cited above, all involved contentions arising out of emergency planning exercises, but argues that the rationale of those cases is equally applicable to contentions arising out of low power or power ascension testing. In fact in ALAB-903, 28 NRC at 507, the Appeal Board recognized that the fundamental flaw standard is akin to standards for the admission of contentions involying quality assurance in that the question is not only whether a particular event transpired, but whether the event is indicative of pervasive problems. The Staff correctly
x ~ 18 - states that, as.with an emergency planning exercise, low j power' testing is, as a practical, matter, conducted near the end of the full power operating license proceeding. In fact,_such testing frequently occurs after the proceeding has been completed and full power license has issued. The analogy is sound. Low power operation is, in a manner, similar to emergency planning and exercises and should be considered testing and training. In fact, since a utility is not required to demonstrate competence at low power before the grant of a full power license, there is all the more reason to limit low power contentions to those alleging " fundamental flaws" in operational preparedness. Indeed, to conclude otherwise could lead applicants for operating licenses to-forgo the very substantial safety benefits from low power testing before the issuance of a l full power license in an effort to avoid the potential i i delays associated with litigating easily correctable minor 3 and Ad h22 procedural and training problems. In our view j k the safety benefits to be derived from low power testing j months before the issuance of any ful? power license are substantial -- there are no incentives, economic or j otherwise, to rush through the low power evolutions in order 1 to ascend to full power. Rather, under the low power I ' licensing scheme, the incentive is to effect deliberate, l firiely tuned corrections without one eye cocked,to the rate base. o ' i. I I
.. In support of its " fundamental flaw" approach the Staff submitted.the affidavit of James G. Partlow and Victor Nerses (attached to NRC Staff Response) (Partlow and Nerses Affidavit) to explain whether the events of June 22 revealed j fundamental flaws in Applicants' management, operator training, or low power testing programs. NRC Staff Response at 7-8. The Partlow and Norses Affidavit tends to repeat and overlap much of the Staff's Martin and Eselgroth Affidavit presented on the subject of the safety significance of the June 22 event, discussed below. However it is useful for its focus on the overall purpose of low power testing and the fact that a test is in fact a test. Mr. Partlow is Associate Director for Projects, NRR. Mr. Nerses is the-Seabrook Senior Project Manager., They are well qualified to explain the significance of the June 22 events. Egg utatements of professional qualifications, Partlow and Nerses Affidavit. In their affidavit, they explain that, in evaluating the results of low power testing, the Commission's concern is not with minor or ad has problems which occur during the testing, but rather with pervasive or " fundamental" deficiencies which could pose significant public health and safety problems. Id. at 3. As described in Chapter 14 of the FSAR, the low power ~ test program is part of the Seabrook initial test program. The program is conducted to assure that the fac,,ility l performs as designed and can be operated safely, that plant
W i d and emergency operating procedures are adequate,'and that plant personnel are knowledgeable and prepared to operate' the. facility in a safe. manner. i s with any-test program,.it~ A .isLexpected that, in spite of adequate construction and pre-operational testing and extensive' training of personnel, occasional problems may be identified'and personnel errors may occur. This is'part of the testing process. .Id. This seems vary. reasonable to the Board. Indeed any' testing program that fails to reveal any problems or personnel error woula be highly suspect as an undemanding test. Applicants' low power test program was reviewed by the Staff and found to be consistent with regulatory-requirements. The adequacy of Applicants' preparations for low power testing -and the readiness 'of both the licensee 1 y personnel and facility have been confirmed by the Staff.and is. documented in NRC Inspection Report No. 50-443/89-80. Partlow and Nerses Affidavit at 4. The Staff conducted inspections of Applicants' conduct of low power testing during the period between June 13, 1989 -(initial criticality) and June 22 when the reactor was cripped during the natural circulation test. These inspections determined that, with the exception of the errors made during the June 22 event, the low power test program was satisfactorily implemented in accordance with 1 the license, and the plant performed as designed (Inspection j i Report No. 50-443/89-81). Id. J
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f~ p ' In addition the NRC designated an Augmented Inspection Team (AIT) to. review the event. The AIT concludes that " reactor plant safety was never in question, and with the exception of the.significant error of not tripping the reactor at the point first called for by the test procedure and loss of pressure control due to letdown isolation and pressurizer heater de-energization, the operating staff performed well." Inspection Report No. 50-443/89-82, at 6; Partlow and Nerses Affidavit at 4. Although the AIT report correctly identifies the June 22 avant as involving significant error, it is important to note that thi,s event must be considered in context with all of Applicants' activities during low power l testing. So viewed, this event constitutes an excpption to what otherwise has been evaluated by the Staff as fully acceptable performance during the preparations for and conduct of low power testing. Such an exception does not constitute a failure of an essential element.of the primary program or plan (for example, the operator training i program), but rather, errors in not meeting one specific j requirement contained within the overall program or plan. i i To remedy this so as to prevent recurrence of the errors does not require developing a whole new program or. plan or even a significant revision to the existing program or plan. l Partlow and Nerses Affidavit at 5. 1 l l l
b p L L L i L Messrs. Partlow and arses. agree with Gregory Minor and L Steven Sholly, whose affidavits accompany Interveners Motion,.that some improvement'in the training program is i essential.' -But they do not equate the need for "some improvements" in training with a failure in'the essential elements of Applicants' plans, programs or training program j itself. Accordingly, the cognizant officials of the NRC-Staff do not consider the performance of the management and operators _during the June 22 events to evidence a fundamental flaw. Id. The Staff acknowledges that it is not unconcerned with this matter, but.that the lapse, as Messrs..Partlow and Nerses explain, "does not require developing a whole new ] program or plan or even'a' significant' revision to'.the existing program or plan." NRC Staff Response at 9. The Staff' concludes its argument on the " fundamental flaw"-facet of the contention with the observation that: In ALAB-903, supra, the' Appeal Board stated "[t]he test for a fundamental flaw is akin to that required for contentions alleging quality assurance (QA) deficiencies." Under that test, the salient question is not whether deficiencies occurred (it is expected that they will), but ) rather whether'such errors are of sufficient l 1 ' Joint Affidavit of Gregory C. Minor and Steven C. Sholly, July 21, 1989.(Minor and Sholl'y Affidavit)e There ~ are two Minor and Sholly affidavits. One accompanies Interveners' Second Motion. Neither affidavit was sworn to or affirmed before any officer authorized to administer oaths or to receive affirmations. No explanati,on was provided.
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_ 23 _ 1 a dimension to lead'one to' conclude that there'has i been a " pervasive breakdown" in the QA program that raises legitimate doubt as to:whether the' plant.can be operated without; endangering the-public health-and safety.- Eig., Union: Electric Comnuv. (Callaway Plant, Unit 1), AIAB-74 0, 18 NRC-343, 346 (1983). -Applying this principle, it.is clear that the June 22,11989 event reflects only an isolated instance of a failure to adhere strictly to applicable procedure.but does not represent.a " pervasive breakdcwn" in Applicants' ? low power testing or operator training. program. NRC Staff Response at 9-10. While we agree with the Staff, we cannot automatically follow it to the conclusion that the contention fails-because the evidence of:the events of June 22 do not reveal fundamental flaws in Applicants' plans and procedures. At . the contention-screening stage,.the context within which Staff makes its argument, a contention need only alleae with .m reasonable bases and specificity a fundamental fldw. At the screening stage we are not yet concerned with what the evidence'may later establish as is the case with motions to reopen the record. In'this case the contention alleges, inaccurately as it turns out, serious deficiencies in essential elements of NHY's personnel training, policies, s management competence and attitudes, and other operational elements which were revealed by the noncompliance of June 22. Putting aside for the moment Interveners' training allegations, it is no't obvious that the balance of the contention also alleges defects which can be remedied "claly by a significant revision" of plans, procedures"or whatever. o
~ - 24 1 However, in a judgment cafl for the sake of completeness, we rule for now that the non-training aspects of the contention meet the' threshold test for alleging " fundamental flaws" as required by ALAB-903, supra.7 This is a hollow victory for the Attorney' General, however, because his contention survives only long enough to perish when we apply the standards for reopening the record, below. With respect to the training allegations, Basis B.2 alleges that training (and management) procedures for the operations shift crew are not adequate. Basis B.5 alleges I that management training programs are not adequate. Basis C alleges " pervasive and fundamental defects in Applicants' programs and procedures, including the licensed operator training program and'the-training program for the technical and management staff. However, the support for these bases, including the explanation for the bases provided by the Minor and Sholly Affidavit (gtg., paragraph 22, at 11), amount to no more than an allegation of the need for IInterveners' proffered Raply to Applicants' and Staff's Responses to Interveners' Motion complains that the Staff is asking the Board to "make new law" by extending the " fundamental flaw" standard to contentions relating to low power testing. 1d. at 3-10. We agree that, however valid the Staff's position may be, it is a new application of the " fundamental flaw" test, notwithstanding its similarity to the test for quality assurance contentions as delineated in Callaway, supra. Therefore we have considered that aspect of Interveners' Reply as if it were received. However the balance of the Reply is a mixture of arguments set out in the original motion, and in any event, is subsu~ed by i m l Interveners' second Motion and is not received, l 1
L supplemental training. Wh can find no rationale, support, basis, or specificity for the suggestion that the training program is deficient, significantly or'otherwise. Thus the teaching of ALAB-918, supra, 29 NRC at 485-486,. in part, guides us to the conclusion that the training aspects of the contention de not allege a fundamental flaw in the training program and those aspects of the contention are therefore defective. A Fortiori the training aspects will not fare well when measured against the standards for reopening a record, as we next discuss. INTERVENERS' MOTION TO REOPEN THE RECORD Motions to reopen a record are governed by 10 C.F.R. S 2.734.s aAs pertinent: (a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied: (1) The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented. (2) The motion must address a significant safety or environmental issue. (3) T'he motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. f ~ J
' In another facet of this proceeding, in ALAB-915, 29 NRC 427, 432 (1989), the Appeal Board stated: [T]he Commission expects its. adjudicatory Boards to enforce section 2.734 requirements rigorously -- ima., to reject out-of-hand reopening motions that do not meet those requirements within their four corners. Moreover, the accompanying affidavits and supporting material must be tantamount to evidence, and in excess of the basis and specificity requirements of 10 C.F.R. 5 2.714 (b). Lona Island Lichtina comoany (Shoreham Nuclear Power Station, Unit 1), CLI-89-1, 29 NRC 89, 93-94 (1989). ] i (b) The motion must be accompanied by one or more affidavits.which set forth the factual and/or technical bases for the movant's claim.that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by i competent individuals with knowledge of the facts alleged, or by esperts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards set forth in S 2.743(c). Each of the criteria must be separately addressed, with a specific explanation of why it has been met. Where multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section. (d) A motion to reopen which relates to a contention not previously in controversy among the l parties must also satisfy the requirements for nontimely contentions in S 2.714 (a) (1) (i) 'through (v). l e
- Timeliness The Interveners'. Motion was filed on July 21, 1989. Applicants provided a report of the June 22 incident to the Massachusetts Attorney General on July 14. Given the stringent requirements for supporting a motion to reopen the record, the Interveners acted promptly if time is measured from July 14.. Applicants and Staff, however, argue that the Massachusetts Attorney General was put on notice of the events through newspaper accounts on June 24 and 25. Egg Applicants' Answer, Attachment F. It is true that the Massachusetts Attorney-General knew of the plant shut-down early from news reports, and in fact orally warned the Board and parties of his intention to file contentions o'n the matter soon after the news reports were published. Almost as an intuitive reaction, the Board then would have been less than warm to any effort by Interveners to introduce a new issue, or to reopen the record of the hearing, based upon newspaper accounts. The Board and parties then had enough work to do without entertaining speculative or unripe pleadings. Nor do Applicants and Staff explain how the Massachusetts Attorney General could have carried his heavy evidentiary burden imposed by 10 C.F.R. S 2.734(b) with nothing but newspaper accounts. The motion to reopen is timely. l f
1] u.u a safet'v' Significance Interveners;do'not dispute. Applicants'; basic account of g i the June 22 event. It is conveniently set out in NHY's response to-the CAL. Applicants' Answer, Attachment A. The NRC^ Staff has'provided, as far.as we can determine, all available'information-on the incident with its Response. These include the Partlow and Nerses Affidavit discussed i ? 9 above, the Martin and Eselgroth Affidavit and the l August 17 report of.the Augmented Inspection Team l (Inspection Report No.-50-443/89-81),'noted above. The l background account below is excerpted from Applicants' j ~ Answer: On' June 22, 1989, Seabrook Station, Unit 1, initiated, at approximately 12:19 PM, a Natur'al' ( Circulation Test. This test, which followed completion of the low power testing, was governed by Test Procedure "No. 1-ST-22." That test procedure provides, in material part, as follows: B. Manual Trip Criteria: The test must be f terminated and the reactor tripped if any of the following occur: 9Affidavit of Thomas P. Martin and Peter W. Eselgroth. Mr. Martin is Deputy Regional Administrator, Region I, and ~ Mr. Eselgroth serves as Chief,' Pressurized Water Reactor Section, Region I. Mr. Martin was present in the control room on June 22 and observed the events in question. 3 Mr. Eselgroth was the leader of the Augmented I,nspection 1 Team designated to analyze the event. Martin and Eselgroth Affidavit, Q4-A4 and Q7-A7.
.4: 4^ 5. Pressurizer Water Level: < 17%- or unexplained decrease of > 5%. This criterion, by its terms, requires the manual trip of the reactor at a pressurizer level some 12 percentage points higher than would be required by license technical specifications attendant to normal operating procedures. At 12:26:04 PM, steam dump valve MS-PV-3011 failed i open, which had the effect of causing the pressurizer pressure and level to continue to drop from then existing levels. The pressurizer level continued to drop until 12:28:53 PM when it decreased below 17%. At the time this occurred, there were present in the control room -three 'NRC' Staff pe'rsonnel, as well as other observers. Despite the fact that NRC personnel, on possibly three occasions, brought to the attention of NHY operating and test personnel the fact that the pressurizer level had decreased below 17%, the reactor was not shut down until 12:35:54, or some seven minutes and one second after the pressurizer level had dropped below 17%.10 This shutdown was preceded by a 10The Chronology of Events, Appendix A to the Report of the Augmented Inspected Team, 89-82, lists only two ~ occasions when an NRC Inspector discussed the need for a trip with NHY personnel -- once at about 12:32 with the Startup Manager, and once at about 12:34 with the Test Director. The third reported discussion of a need for a trip was among NRC personnel at about 12:33. ggg n.13, infra.
" l successful effort to"close MS-PV-3011, a resulting turn around and rapid recovery of pressurizer level and .) pressure, a return of pressurizer level to above 17% and,.indeed, to a level of 21%. The manual trip was actually ordered, not in response to the previous drop a in pressurizer level, but rather in response to the i approaching of a pressure trip criterion. Subsequent investigation of the event i revealed the following as to the safety I consequences of the event: During the transient, all systems, with the exception of the steam dump valve MS-PV-3011, functioned as designed. At no time did reactor power increase above its initial value, nor were any-Technical Specification or design limits exceeded. -Pressurizer level remained well above the 5% pressurizer level manual safety injection value and pressurizer pressure, although increasing, never reached the automatic trip setpoint of 2385 psig. At no time durina the transient was there any adverse imoact on the health and safety of the oublic, nor did unreviewed safety cuestions exist. Licensee Event Report (LER) at 3. As to the failure immediately to shut down the reactor, subsequent investigation concluded: The Unit Shift Supervisor did not manually-trip the reactor because he misinterpreted the 17% pressurizer level value to be test termination guidance, which was more conservative than the 5% pressurizer level safety injection requirement provided in Station ~ procedures. The pre-test briefing given w-_.___m_..__
. to the crew performing the Natural Circulation Test was not effective. The required information was presented to the crew but the requirement to perform a-manual reactor trip at 17% pressurizer level was not fully understood. ' LER at 4. After the event had occurred and initial debriefing of the " players" had taken place, at 6:00 PM, NHY personnel, headed by the Vice President - Nuclear Production, had a conference call with the onsite NRC inspectors and NRC Region I personnel to discuss the event. During that conversation the NHY personnel made statements which, in part, constituted an unwarranted defense of the operator actions taken or not taken, an assertion that the operators' actions were more conservative than strict compliance'with the ~ test procedure, and that NHY procedure compliance policy was essentially adequate as written; in addition, a proposal was made that reactor restart be allowed to occur in parallel with NHY/NRC event evaluation. The call concluded with agreement that a follow-up conference call with NRC Region I would be held at 7:30 AM on June 23, 1989, and that the reactor would not be restarted until NRC concurrence had been obtained. 9 ___.w----._-- _ - - - - - _. - - _ - - ~ _ - - - - - - -
t-I l The NHY CEO had still not been informed of these t i matters when he participated in the planned telephone call with NRC Region I at 7:30 AM on June 23,-1989.11 NHY subsequently acknowledged that the statements made in the 6:00 PM (June 22) telephone call were f inappropriate and not in conformance with NHY policy. 1 On June 23, 1989, NRC Region I icsued a { Confirmatory Action Letter (CAL) confirming NRC's understanding that prior to any restart of the reactor, NHY would complete review of the event, establish short term corrective actions, determine long term corrective actions and schedule same, review the results of each i of the foregoing with NRC staff and obtain concurrence of the Administrator of Region ~I before any restart. Applicants' Answer at 1-6. Interveners' Motion is supported by the Minor and Sholly Affidavit. Neither the Massachusetts Attorney General nor Messrs. Minor and Sholly contend that the June 22 event presented any direct danger to the public health and safety or that the plant was at risk. Rather the Massachusetts Attorney General contends that the events described above demonstrate that the Applicants cannot 11We note below '(page 39) that the Augmented Inspection Team and the Martin and Eselgroth Affidavit conclude that, contrary to Applicants' own account of the communications with the NRC, NHY personnel were accurate and f,ully forthright in their reports. O l
L x comply with 10'C.F.R. S 5d.57; 10 C.F.R. Part 50, Appendix B; 10 C.F.R. S 50.34 (b) (6) ; and 10 C.F.R. S 55.53(d). The Minor and Sholly Affidavit essentially recites the events as reported by NHY and set out above. Affidavit at 5-6. They explain their view of the applicable regulations and emphasize that each of the five members of the operating crew had the authority to order a reactor trip when the test limits were exceeded but all failed to do so in a timely fashion. They state that on three separate occasions members of NHY management present in the control room were informed by NRC personnel that the manual trip j criterion had been exceeded but none acted to shut the reactor down. Id. at 10. Messrs. Minor and'Sho11y' conclude that a viol.ation of 12 10 C.F.R. Part 50, Appendix B, Criterion V, occurred when the operators failed to trip the unit in accordance with the procedure. Moreover, they state, it is apparent that the training program is not effective in this instance and i "some improvement" in training is essential to prevent future violations. Minor and Sholly Affidavit at 11. The Applicants conclude that no technical specifications parameters or design limits were exceeded, nor was there any danger to the public, personnel or ~ l 12These are quality assurance criteria. Criterion V requires documentation of activities affecting.guality and that the activities be conducted in accordance with the documentation. Id.
' equipment. But Messrs. Minor and Sholly stress that actual danger is irrelevant to Appendix B; procedures must be followed; and the failure to follow them carries with it significant safety implications. Id. at 11-12. They also allege othar events, suggesting that the noncompliance of Jur.e 22 is not an isolated event. Id. l l at 12-13. We discuss in more detail the Minor and Sholly Affidavit in the context of the Staff's response to it below. The Martin and Eselgroth Affidavit is very important to the resolution of the issue of safety significance. As noted, Mr. Martin was present in the control room and observed the events of June 22. Mr. Eselgroth was the leader of the Augmented Inspection Team (AIT). Id. at A4, A7. The principal findings of the AIT are instructive: The plant responded as predicted during the natural circulation testing. But plant equipment was not ready to support the test. There was an open work order for testing the steam dump valve. ~ The Unit Shift Supervisor (USS), Senior Contro1 Room operator (SRO) and Control Room Operators (CRO) were found, upon interview, to be highly compet~ent, and
4 s.1 '.i ~ + 1 clearly aware of their assignments. The USS E communicated that he had no doubts about his responsibilityharthetesting. There was no evidence that training relative to natural circulation testing had been given within about a year prior to the test. The AIT reviewed the pre-test briefing conducted for the operators by the Test Director and found it to be inadequate with respect to reactor trip criteria. The operating crew conducted plant operations in a controlled, unfrenzied manner before, during and after the trip. Applicable emergency operating measures were t-carried out appropriately. i NRC Staff members are aware that NHY management directed that personnel should proceed with the testing in a controlled manner and not feel rushed to complete evolutions. The USS stated that the reason he did not trip at the 17% level was that the decreasing level was turning around.13 AIT concluded that the cause of the event 13 L A portion of'the chronology of events as determined L by the AIT, demonstrates that the corrective action had been taken, itg., steam dump valve closed, almost a minute before the NRC inspector first discussed the need for,a trip with l NHY personnel: I l
" was a lack of.importance or " sense.of-ownership" placed on.the test' procedure limitation by the USS as connared ~ to other limitations such as those in'the Technical Specification and clant oneratina crocedures (which-were not exceededl. Operating personnel misunderstood .that:the test procedure criteria were~the controlling. requirements under testing conditions. INSPECTOR TlHE: EVENT: OBSERVATION / ACTIONS: 12:26:04. Steam dump valve 3011 . fails open. 12:28:59 PZR level at 17% PZR heaters deenergized Letdown isolated. 1:2:30:55 Lowest'PZR level 14.5% Lowest PZR pressure 2179.0 psig-' 12:31:06 Steam dump valve 3011 closes-12:32 (about) NRC inspector discussed need for' trip with .i Startup Manager 12:32:55 Avg. wide range Tavg 539.97 degrees F 12:33.(about) NRC inspector discussed need for trip with SRI and Deputy Regional Administrator 12:33:55 PZR level 17.95% 12:34 (about) NRC inspector d[scussed 'l need for trip with Test Director AIT Report, Appendix A. ~ 1 J
6 'o- . 37 -? 4 .The Shift Superintendent ~did not provide effective supervisory involvement.in the conduct of the test'. Operating personnel now understand that the proper procedure was to' trip before'the 1-ST-22 criterion on pressurizer level.was exceeded. The startup test group failed 'in its responsibility to terminate or interrupt the test even though the Startup Manager was~made aware of NRC's concerns. The test organization gave inadequate direction overall. L Plant management observers'present and with authority to direct the termination of the test either did not know that test limits were exceeded or, if theylknew, failed to act to correct the failure to trip. The NRC Staff is unhappy that the initial NHY management approach after the trip was to resolve equipment problems rather than address the importance of violating test procedures.14 A thorough review of i the event did not take place until the NRC raised the issue with senior management. l 14The Vice President-Nuclear Production lost his job as ) a result of his post-trip communications and pe'rspective. E2g., Applicants' Answer at 6. {:\\ l i I I
_ 38 -- L ~ The transient resultihg from the steam' dump valve l problem and the-failure to' follow the-test reactor trip. l criterion'did not significantly challenge the margin of ~ safety. - But the. failures recounted above,. including l the post-trip willingness to proceed before a thorough review are unacceptable to the NRC Staff. ' Martin and Eselgroth Affidavit at A7. The contention alleges that operators and management " deliberately disregarded test procedures" requiring'a shutdown of.the' reactor. Interveners' Motion, Exhibit I, at'3. Messrs. Martin and Eselgroth disagree.with the contention, having concluded that the. operators believed the test trip criterion was cuidance only. They point out that 'the operators knew.whatJwas happening'with the plant, were 'in,the final stages of recovery and recognized that the plant was not in danger. Martin and Eselgroth Affidavit at A9. Their conclusion on this subject is definitive. They. ~have been, during and after the events, in'the best position to judge the cause of the failure to follow the test trip criterion. Messrs. Martin and Eselgroth also dispute Interveners' allegation that virtually all the senior management personnel present during the transient. knew that continued operation violated test procedures. They state that only the Unit-Shift Supervisor knew that the test tr,ip criterion was exceeded, and as we noted above, he thought the m____m______
M. t a l '- i criterion ~was only' guidance'..The Assistant: Operations, i Manager learned'that the criterion was exceeded'from an NRC representative during the event but.it was shortly before j the trip'(for other reasons) by the' time ha' confirmed the information and began to take action. Id. at A10, All. The~ Staff affiants also disagree with.the allegation in -the contention that senior management provided inaccurate and incomplete information to the NRC on the shutdown. Surprisingly, Messrs. Martin and Eselgroth do notieven accept NHY's man'culna to that effect contained-in the response to the CAL. Egg Applicants'. Answer, Attachment A, at 4. They state that as both the licensee (NHY) and the NRC. gained knowledge of the event,;the NRC has learned'that the quality, completeness and-perspective of the information provided to the NRC was acceptable both during and immediately following the event. The contention alleges that senior management personnel = refused to acknowledge the seriousness of the noncompliance and "even suggested restarting the reactor without resolution of the issue." Interveners' Motion at 4.
- Again, Messrs. Martin and Eselgroth disagree with the contention, but they agree that the Vice President-Nuclear Production failed to recognize the seriousness of the noncompl.iance, and did in fact suggest a restart without prior review or resolution of the issue.
The Plant Manager, who recognized I d _________.___m.______._.m_
I' ~ the significance of the n6 incompliance, did not effectively communicate with the Vice President.15 Messrs. Martin and Eselgroth agree with Messrs. Minor and Sholly that "some improvements" in staff training are necessary as demonstrated by the performance of the 1 operating, startup and testing staff and supervision. The details of the remedial action will be developed in the normal course of the NRC's enforcement deliberations. NHY-has revised procedures and is conducting training to correct the operators' misunderstanding evidenced by their hierarchical approach to procedural compliance. Overall Messrs. Martin and Eselgroth do not believe that at present the licensee's training program inadequacies are so great as to materially change Region ~I's recommendation relative to the low power license. Martin and Eselgroth Affidavit I at 13, 19. l Amplifying on the Partlow and Nerses Affidavit, supra, Messrs. Martin and Eselgroth explain that two teams of NRC inspectors (approximately twelve inspectors) observed plant operations continuously for twenty-four hours a day for thirteen days between May 27 - June 1 and June 12 - 24. The conclusions reached by these inspectors are that operators 18Messrs. Martin and Eselgroth note in passing that the NRC did not prompt NHY into relieving the Vice President of his responsibilities for nuclear matters. Mart'in and i Eselgroth Affidavit at A13. l -_N-__----__
- 7. g and. management are adequately trained, and that the operators were adequately supervised.
Messrs. Minor and Sholly allude to Inspection Report No. 89-03 covering inspections.in. February and April 3989 which refer to four incidents which highlight a reduction in attention ' toidetail in the conduct of routine plant 1 operations. As noted.above, they suggestLthat the event of June 22 may not have.been an isolated event. Messrs.. Martin and Eselgroth counter this suggestion with a discussion of the thoroughness of the Staff's observation of the low power startup test. They give NHY personnel high marks for. professionalism and attention to detail and conclude that the procedure-adherence problems identified during the natural circulation test were the only violations 1 observed during.approximately two weeks of low power testing. No repetition of the weaknesses described in Inspection Report No. 89-03 were observed -- in fact-there were observations that the previously reported areas of weaknesses became strengths during low power testing. Id. at A18. The Martin and Eselgroth Affidavit, as well as the Partlow and Nerses Affidavit. has provided the Board with an ample factual record to resolve the issue of whether Interveners'. Motion. raises a significant safety issue. We 16" Attention" was misstated as " addition" in the Minor and Sholly Affidavit, and apparently in the insp'ection report. Id. at 12. It is correctly stated as attention" in the Martin and Eselgroth Affidavit at Q16.
i H ' conclude that it does not." Some of the grounds for this conclusion, discussed above, are: i i 1. The event of June 22 did not challenge plant safety systems or place the public, plant personnel or plant equipment in danger. 2. The event was an aberration. Many days and hours I of low power testing were observed by qualified NRC observers. NHY personnel performed well. 3. The failure to trip resulted from a narrow omission in training and briefing by the NHY test personnel leading to a misunderstanding that the test reactor trip criterion for low pressurizer level was merely guidance, and I that Technical Specification and plant operating procedures (which were not.vi-olated) controlled instead. 4. Overall training of NHY operators and management is good. Remedial steps have been taken to address any deficiencies in the training program. 5. There is no evidence of willful (12g., with ) knowledge) noncompliance with NRC regulations or agreed-upon procedures. 6. There is no evidence that NHY management (with the possible exception of the Unit Shift Supervisor) present in the control room Knowingly allowed test limits to be exceeded. The evidence is to the contrary. 7. There is no evidence that NHY misled,the NRC in reporting the events or was not fully forthright. The Vice
-:43 - . President-Nuclear Producti'on lost his job for his eagerness to resume tosting and for emphasizing equipment over procedures -- a harsh action. 8. Contrary to early news reports and Interveners' allegations, NHY personnel did not defy or disregard NRC advice to scram after the 17. percent pressurizer level limit was arceeded. 9. The June 22~ noncompliance'is not a part of a pattern of noncompliance in connection with the noncompliance reported in Inspection Report No. 89-03.
- 10..The noncompliance of June 22 does not reveal a fundamental flaw in Applicants' programs, procedures or policies.
11. NRC Staff, particularly the'NRC's Augmented Inspection Team responded responsibly and forcefully to the noncompliance. They have expressed criticism and approval of NHY. personnel objectively and where appropriate. The matter is best left in their hands. 12. Interveners' Motion does not demonstrate that a materially different result would have been likely had the contention and newly proffered evidence been considered initially. This conclusion is virtually forced by the facts leading to our conclusion that the raotion does not. address a ~ significant safety issue or that the events of June 22 did not reveal a fundamental flaw in NHY's procedures, training and policies. Under the circumstances, if the matter had _____m____.____
I l m i " ~been litigated before the'close of.the record, the most likely result would have been to see.to: remedial action. L ThiaL has been ' accomplished.- 1 Five Factors ~Since Interveners' Motion failed to address significant safety or environmental issues or to demonstrate that a L different' result would have bean likely-had the newly . proffered evidence been considered before the close of the record, there is no need to balance the five factors for ~ late filed contention set out in Section 2.714 (a) (1) (1) through~(v).- Egg Section 2.,734(d).. Nevertheless, for . completeness, we' note our agreement with the NRC Staff that 'the' Interveners' Motion does not demonstrate.that.their participation in any reopened proceeding may reasonably be expected to. assist in developing a. sound record. Factor (111).. While we respect the experience and technical nuclear expertise possessed by Messrs. Minor and Sholly, in this case, they have not demonstrated any particular qualifications to address the issues set out in the contention. NRC Staff Response at 19-20. The root cause of the June 22 noncompliance was a failure to understand the regulatory. significance of the test procedures and.a failure to prepare. properly for the natural circulation test. In essence this is a human factors matter. Neithe,r Mr. Minor i-
I l - 45'- l nor Mr. Sholly claims any expertise in this area.17 Nor ^ L have the Interveners demonstrated throughout this long l. litigation'any special insight into these matters. r Moreover it is quite obvious that reopening the record and admitting the contention would broaden the issues and delay the completion of the proce. ng. INTERVENERS' SECOND MOTION Interveners' August 28, 1989 motion to add new bases and contentions (Second Motion) is not a good pleading. Unfortunately it is a too familiar example of the Attorney General's undisciplined and disdainful approach to practice before this Board. Its tenor is petulant, complaining once again that this Board'ha's failed to' exert control'.over the filing of low power contentions. Much of it, with interminable footnotes, is devoted to restating and glossing the arguments in the first motion, although the Attorney General is fully aware that the practice is not authorized by the rules. He argues again his views on Interveners' rights to litigate; asserts again the strained proposition that the Confirmatory Action Letter is somehow an enforcement proceeding creating a cause of action for Interveners. Again we are told about the heavy and unfair ~ 17Egg Minor and Sholly Affidavit, Attachment 1, Statement of Professional Qualifications of Gregory C. Minor, and Attachment 2, Statement of Professional Qualifications of Steven C. Sholly.
, ~ burden in meeting standards for reopening the record, and ~ I again given warning that yet more bases and contentions on J low power testing may be expected. Second Motion at 2-12. Matters do not improve much when we finally move on to-i the new bases for the original contention (JI-LP-1) and the i two new contentions (JI-LP-2 and 3). Id., Exhibit 1. The additional bases and contentions consist primarily of a 23-page restatement of the AIT Inspection Report, 89-82. The new effort does not highlight how it differs from the . original motion, leaving it to the Board to examine both prolix pleadings in search of differences. This is the l Interveners' responsibility, not the Board's. Similarly,- ] the new bases and contentions do not separate what the 1 Interveners learned for -the-first time in the AIT. report as compared to the earlier Response to Confirmatory Action Letter, again leaving it to the Board to try to determine whether the new bases have been timely filed.18 Most of the facts reported in the AIT Report could have been, and many were, alleged at the time of the original contention, with one notable exception, discussed below. 18Applicants' Response to Second Motion, at 4-5, lists seven items of information pleaded in the Second Motion which Applicants' claim were available in earlier docume7ta. It was the Attorney General's job to explain clearly why the information in the AIT Report was new. Ne are not inclined to reexamine the earlier documents to ferret out differences in order to aid Interveners in their litigation.
_ 47 - The second Minor and'Sholly Affidavit, attached to the Second Motion, was " incorporated by reference into the body" of that motion. Second Motion at 18. The affidavit is devoted largely to restating portions of the AIT Report. Simply incorporating the affidavit into the motion is not a skilled approach to legal pleading. It apparently anticipates that this Board will carefully compare the affidavit with the motion, then with the bases, and the two new contentions, then compare that entire package with the original contention, its bases, then cull the repetitious allegations, and somehow extract from that blizzard of 1,nformation the issues the Interveners seek to litigate. Above we have discussed at length the Martin and Eselgroth Affidavit which was-based'primarily on the AIT .l Report. Almost all of the allegations contained in the Interveners' Second Motion (by reference to the AIT Repcrt) were discussed by Messrs. Martin and Eselgroth. Yet the Attorney General makes no analysis of the detailed reasoning and the conclusions in that affidavit, thus again failing to isolate the issues from the mass of words submitted for our review. The Second Motion, except as noted below, fails because it does not clearly inform the Board and the NRC Staff about the issues sought to be litigated. It does not inform the Applicants about the charges against which they,must defend. In that it does not adequately separate new information from .I
~ Ne. i: ~ ' .i previously available infor'mation,.we.also conclude that the' Second Motion is not timely,under the standards of 10 C.F.R. S 2.734 (a) (1), again, except as noted below. Interveners cite.the-AIT report-(at 6.2): ] Also, the apparent willingness of managementLto proceed-l with testing following the June 22 occurrence'without first completing a: thorough review and causal factor assessment is safety significant. (underlining . supplied). Fron this statement we are urged by the Attorney General to-conclude that the Staff agrees (with IntervenorE} 1 'l that the motion therefore addresses a "significant safetyi ,l ' issue" within the meaning of 10 C.F.R. 5 2.734 (a) (2). Second Motion at'17. Applicants respond by defining " safety significant" as l - a matter that-simply relates to safety, regardless of importance. A "significant safety" matter, on the other i hand) is one that is important to safety. Applicants' Response to Second Motion at 7. While Applicants' semantical logic seems sound, it may be a case of over-analysis of a few words. Better guidance of the Staff's intended meaning may be gleaned from the Martin and Eselgroth Affidavit. There they conclude, based on the AIT Report, that the actual transient had " limited safety significance" and that based upon the " prior good.. performance of the licensee's staff and management" and the isolated nature of the failure to comply, Regio,n I concludes that its prior recommendations (to issue a low power 9 ,_._a_-..x__----
-49_ license) are not materially affected. Martin and Eselgroth Affidavit at Q25. We cannot conclude from the overall tenor of the AIT Report and the Martin and Eselgroth Affidavit that the NRC technical staff believes that the June 22 incident involved a significant safety issue, which if i initially considered, would have produced a different result. Applicants initially reported that there was an incomplete work request for testing on steam dump valve, MS-PV-3011. The failure of the valve was the cause of the unplanned plant cooldown. The test procedure required that the valve be available. Response to Confirmatory Action Letter at 29-30 (Attachment A to Applicants' Answer). Interveners' original contention contained no equipment quality control allegations. Now, however, Interveners submit a contention alleging that: Low-power testing has disclosed serious defects in the maintenance practices regarding valves and the quality control of such maintenance practices and the possibility of aesign defects in certain steam dump valves, in violation of 50 CFR Appendix B, V. XI, and XVI. Second Motion, Exhibit 1, at 15, Contention JI-LP-2. The contention alleges that the information supporting the bases did not surface until the AIT Report, an apparent i ~ reference to the timeiiness of the allegation. Exhibit 1, at 16. The contention, is a discrete, identifiable portion I i i tll l I l l
.____=_____ __-__ - -__ - _ ___ of-Interveners' Second Motion and can be reviewed on its merits.- . Basis'A of JI-LP-2 auggests'that there exists a pattern J .of-reporting incomplete work items as complete and~ ends with the conclusion that such actions may reflect "large. maintenance backlogs and continued financial and licensing-pressure." There is no foundation for this allegation.. Indeed Basis A is.not even understandable in part because it. depends upon a reference to IR 89-07 and IR 88-11 for'its . context. Those reports were not provided as a part of the record and we-have not tracked them down. We could infer from the references to them that the allegation' lacks timeliness as readily as we could infer that a pattern exists. Basis A is lacking-in-founded specificity and is deficient on that account. Basis B of JI-LP-2 comes straight from the AIT Report and is a part of a larger discussion of steam dump valves. Report at 13-15 (Attachment 5 to NRC Staff Response). The team reviewed the history of the steam dump valve MS-PV-3011'which failed.during the natural circulation test. The AIT noted that the valve was not ready to support the natural' circulation test because the work order to test the valve was still open,,but that confirmation of the.. availability of the steam dump system had, nevertheless, been signed-off. Post-event testing of all the steam dump valves revealed that seven of the twelve valves showed z___
'e - either binding, scored ste'as, loose linkage or tight linkage. The history (apparently including the post-event testing) indicated to the AIT there is a valve maintenance or design problem. Id. at 14. These findings.and conclusions form the foundation for Basis B. Second Motion, Exhibit 1, at 17. The AIT Report is the first time the essence of the steam dump valve-failure episode, its significance'and its resolution has been reported. To the extent that Basis B and Basis C depend upon the AIT Report, the contention is timely. We note, however, that Basis C alleges earlier valve failures as reported in IR 89-80 and.IR 89-03. Again Basis C cannot be evaluated outside the context of the referenced reports which.were not provided'.- Also', dep'ending upon the, earlier l episodes alleged in the basis raises questions of timeliness. We hold that Basis B and the portion of Basis C alleging that "[t]his failure to establish and maintain operable steam dump valves may indicate a more pervasive deficiency in the testing, verification and maintenance of valves in general" is an adequately pleaded contention, and as noted, is timely. Accordingly, we evaluate the contention under the standards for reopening a record pursuant to 10 C.F.R..S 2.734.and whether the contention ~ addresses a significant safety issue. As we have been taught by the Appeal Board, decision in Union Electric Comoany (Callaway plant, Unit 1) ALAB-740, __..a___m_m. _ - _ _ _ __---.-m-
' h supra, 18 NRC 343, 346 (1983), in any large and complex undertaking such as the building of a nuclear power plant there will be some construction defects tied to some quality assurances lapses. The test, however, is "whether there has been a breakdown in quality assurance procedures of sufficient dimensions to raise legitimate doubt as to overa:1 integrity of the facility and its safety-related structures and components." Applicants need not demonstrate error-free construction, but a demonstration of "a pervasive failure to carry out the quality assurance program, may well stand in the way" of a finding that the plant can and will be operated without endangering the public health and safety. In the context of a motion to reopen the record, any such allegation of a pervasive breakdown in the quality assurance program must exceed the mere basis and specificity requirements of the intervention rule. Interveners' showing must be tantamount to evidence, as we noted above, citina Lona Island Lichtina Comeany (Shoreham Nuclear Power Station). CLI-89-1, supra, 29 NRC 89, 93-94. Neither the Martin and Eselgroth Affidavit nor the Partlow and Nerses Affidavit expressly addressed the issue of the overall quality assurance program for equipment as alleged by contention JI-LP-2. That issue was not before them in precisely that form; rather they were speaking to _m________ ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - ^ ' - - ^ - - - - - ~ - - - ' - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ' ~ - - ' ' ' - - ' ' - ~ ~ - - - - - - - -
ow m j ' ~ ^ training and operating procedures. However the AIT Inspection Report was before the Staff's affiants. Mr. Eselgroth lead the team. Low power testing of course is'for the purpose of' testing equipment, design and personnel performance. It is not surprising that equipment failures will be found. As ] - noted'above '(pp. 19-20), Messrs. Partlow and Nerses explained: -As' described in Chapter 14'of the FSAR, the low power test program.is part of the Seabrook initial test program. The program is conductad to assure that the facility performs as designed and can be operated' safely, that plant and emergency operating procedures are adequate, and that plant personnel are knowledgeable and prepared to operate the facility in a safe manner. As with.any test program, it is expected 'that, in spite of adequate construction and: pre-operational testir.g and extensive training of personnel, occasion'al problemi'may be identified and personnel errors may occur. This is part of the testing process. Affidavit at 3. The NRC Staff observed low power testing 24 hours a day for about 13 days. Martin and Eselgroth Affidavit at A15. clearly the nuclear and nonnuclear components of the plan c j were tested, as required by the FSAR, under close scrutiny. No other indications of design or maintenance quality assurance problems were reported. Messrs. Martin and Eselgroth, fully cognizant of the defects found in the steam l dump valves, stuck by their recommendation that the plant had been ready for low power operation, includi,ng the __m____
- 54 Staff's review of maintenance and surveillance procedures. ' Affidavit at A22 and A25. Moreover,'the Augmented F ' Inspection Team concluded that Applicants' short-term and long-tern response to the valve failure problem was appropriate. 'AIT Report at 15. Messrs. Minor and Sholly in their second affidavit, discuss the undisputed safety significance of steam dump valves (at 5) and list the. Appendix B Critoria which they believe.were not met with respect to the valves.(at 4-5). Their suggestion that.the question of whether there is a valve maintenance or design problem should be resolved before operation is resumed is in accord with the -Applicants' long term plans for resolving the issue, which, as noted,-has been apprdved'by the" Staff. However., Messrs. i Minor'and Sholly do not make a case for Interveners' allegation that the failure to maintain the valves indicates a pervasive breakdown in Applicants' quality assurance program. The Board concludes on the evidence before it that Contention JI-LP-2 does not present a significant safety issue within the standards of 10 C.F.R. 5 2.734(a) (2) and is therefore rejected. Contention JI-LP-3 and the additional bases for Contention JI-LP-1 are also' rejected for..the . pleading failures discussed above. 9
p 4
- ORDER The Interveners' motions to admit contentions and j
' additional bases or to reopen the record and requests for a i hearing are denied. ATOMIC SAFETY AND LICENSING BOARD Richard'F. Cole ADMINISTRATIVE JUDGE 87k/ Kenneth A. McCollom 1 ADMINISTRATIVE JUDGE // A8 Y Ifah W. Smith,' chairman ADMINISTRATIVE LAW JUDGE Bethesda, Maryland l October 12, 1989 4 = e 1 4
UNITED STATES OF AMER 2CA NUCLEAR REGULATORY COMMISS!ON L In the Matter of I I PUBLIC BERV!CE COMPANY OF NEW l Docket No.(s) 50-443/444-OL HAMPSHIRE. ET AL. 1 (Seabrook Station. Units 1 and 2) 1 I I CERTIFICATE OF SERVICE ! hereby certify that copies of the foregoing LB M60 (DENY!NS INTERV....) 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 Administrative Judge G.- Paul Bollwerk, !!!, Chairman Alan S. Rosenthat Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissicn Washington, DC 20555 Washington, DC 20555 1 Administrative Judge Howard A. Wilber Administrative Law Judge, Atomic Safety and Licensing Appeal Ivan W. Smith, Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 - Washington, DC 20555 ' Administrative Judge Administrative Judge Richard F. Cole Kenneth A. McCollos Atoste Safety and Licensing Board Atcate Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judoe Robert R. Pierce. Esquire James H. Carpenter Atomic Safety and Licensing Board Alternate Technical Member U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Edwin J. Reis, Esq. Mitzi A. Young Office of the General Counse) Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel Washington. DC 20555 U.S. Nuc1sar Regulatory Commission Washington, DC 20555 j 9
4 L Docket No.(s)50-443/444-OL ' LB M&O (DENYIN8 INTERV....). f Diane-Curran, Esc. Thomas G. Dianan, Jr., Esc. Harmon, Curran &'Tousley Ropes & Gray ~ 2001 S Street, N.W., Suite 430 One International Place i Washington, DC 20009 Boston, MA 02110 Robert A. Backus, Esq. Paul McEachern Esq. Backus, Meyer-& Solomon. Shaines &.McEachern 116 Lowell Street 25 Maplewood Avenue, P.O. Box 360 Manchester, NH '03106 Portsecuth, NH '03801 1 ' Bary W. Holmes, Esq. Judith H. Mizner Holmes 6.E11s Silverglate, Gernter, Baker, Fine, 47 Winnacunnet Road Good and Mitzner Hampton, NH 03842 88 Broad Street Boston, MA 02110 Barbara J. Saint Andre, Esq. Jane .Doherty Kopelman and Paige, P.C. Seacoast Anti-Pollution League 77 Franklin Street 5 Market Street Boston, MA 02110 ,Portsoouth, NH 03801 1 George W. Watson, Esc. Ashod N. Amirian, Esq. Federal Emergency Management Agency 374 Main Street 500 C Street, S.W. Haverhill, MA 01830 Washington, DC 20472 Edward A. Thomas George D. Bisbee, Eso. Federal Energency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH) Office of the Attorney General Boston, MA 02109 25 Capitol Street Concord, NH 03301 Suzanne Breiseth John Traficonte, Esc. Board of Selectmen Chief, Nuclear Safety Unit ~ j Town of Hampton Falls Office of the Attorney General Drinkwater Road One Ashburton Place, 19th Floor Hampton Falls, NH 03844 Boston, MA 02108 4 ___._.-__..___.---.--.m__
Docket No.(s)S0-443/444-OL I LB M&O (DENYtN8 INTERV.... ) 1 l ~ The Honorable Peter J. Brann, Esq. Edward J. Markey, Chairman J Assistant Attorney General ATTN Linda Correia . j Office of the Attorney Gener'a2 Subcommittee on Energy Conservation and State House Station, #6 Power i Augusta, ME 04333 House Committee on Energy and Conserce Washington, DC 20515 J Richard A. Nampe, Esq. J. P. Nadeau Hampe & McNicholas Bo.trd of Selectmen '35' Pleasant Street 10 Central Street Concord, NH 03301 Rye, NH 03870 l Allen Lasport William Armstrong Civil Defecse Director Civil Defense Director Town of Brentwood Town of Exeter 20 Franklin Street 10 Front Street Exeter, NH 03833 Exeter, NH 03833 Sandra Gavutis, Chairman Calvin A. Canney l Soard of Selectmen City Manager RFD #1 Box 1154 City Hall Kensington, NH 03827 126 Daniel Street ' Portsmouth, NH 03801 Anne Goodman, Chairman William S. Lord Board of Selectmen Board of Selectmen 13-15 Newmarket Road Town Hall - Friend Street Durham, NH 03824 Amesbury, MA 01913 R. Scott Hill-Whilton.Escuire Michael Santosuosso, Chairman Lagoulis, Hill-Whilton & McGuire Board of Selectmen 79 State Street South Hampton. NH 03827 Newburyport,, MA 01950 Stanley W. Knowles, Chairman Norman C. Katner ~ Board of Selectmen Superintendent of Schooli P.O. Box 710 School Administrative Unit No. 21 North Hampton, NH 03862 Alumni Drive Hampton, NH 03842 D
- 1 o ' Docket NoJ(s)30 443/444-OL i LB M60 (DENYINS INTERV....) Sandra'F. Mitchell The Honorable Civil Defense Director Gordon J.-Humphrey Town'of Kensington ATTN Janet Coit Box 10, RR1 United States Senate East Kingston,.NH 03027 Washington, DC 20510 Dated at Rockville, Md. this 12 day of October'1989 Office f the Secretary of the Commission 4 i I i l l l, l I - - - - - ~. _ - _ _ _ _ _ _ _ _ _ _.. _. _ _ _ _, _ _ _ _ _ _}}