ML19289E928

Opposes Intervenors' 790305 Motion to Reopen Record & Defer Indefinitely Issuance of Initial Decision on Generic Safety Issue Considerations.Certificate of Svc Encl

ML19289E928
Person / Time
Site:	Perkins
Issue date:	04/18/1979
From:	Mcgarry J DUKE POWER CO.
To:
References
NUDOCS 7905290475
Download: ML19289E928 (8)

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DUKE POWER CCMPANY ) -Docket Nos. STN 50-488

) STN 50-489 (Perkins Nuclear Station, ) STN 50-490 Units 1, 2 and 3) )

APPLICANT'S OPPOSITION TO INTERVENORS' MOTION TO REOPEN THE BICORD AND TO PCSTPONE THE ISSUANCE OF A DECISION ON GENERIC SAFETY ISSUE CONSIDERATIONS On April 3, 1979 Intervenors filed their " Motion to Re-open the Record and to Postpone the Issuance of a Decision on Generic Safety Issue Considerations". This Motion serves as the twelfth time Intervenors have sought to delay this pro-ceeding. Pursuant t'o 10 CFR, 52. 730 (c) , Applicant makes the following response.

Tne law respecting =otions to reopen is clearly defined.

See Kansas Gas and Electric Comeanv, et al. (Wolf Creek Generating S tation, Unit No. 1), ALAH-462, 7 NRC 320, 338 (1978) wnerein it is statec:

"As is well settlec, tne proponent or a motion to reopen One recorc has a heavy burden. Duke Power Co. (Catawoa Nuclear Station, Units i anc 2), ALAS-359, 4 NRC 619, 620 (1976). The motion must te both timely presentec anc .accressed to a significant sarety or environmental issue. Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAO-138, 6 AEC 520, 523 (1973); id.,

ALAS-157, 6 AEC 1151-52 (1973); Georcia Pcwer Co.

(Alvin W. Vogtle Nuclear Plant, Units 1 anc 2),

ALAS-291, 2 NRC 404, 409 (1975). Beyond : hat, it nust ce estaolished that 'a cifferent resui: would nave oeen reacnec initially nac trhe material su:-

mittec in support or the motion] been considerec.'

Northern Indiana Public Service Co. (Sailly Generat-Ing Station, Nuclear-1), ALAS-227, 3 AEC 416, 413

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'.1974)."

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See also Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALA3-359, 4 NRC 619, 620-21 (1976), wherein the o cs as Appeal Board statsd: C C *D T c oJ o ,

2. . o "Insof ar as the petition for reconsideration is addressed to the Catawba proceeding, the petition is denied. After a decision has been rendered, ' ~

a dissatisfied litigant who seeks to persuade us--

or any tribunal for that matter--to reopen a record and reconsider 'because some new circumstance has arisen, some new trend has been observed or some new fact discovered,' has a difficult burden to bear.

The reasons for this were cogently given by Mr.

Justice Jackson more than thirty years ago in ICC v.

Jersey Citv, 332 U.S. 503, 514 (1944):

One et the grounds of resistance to administra-tive orders throughout federal experience with the administrative process has been the claims of private litigants to be entitled to rehearings to bring the . record up to date and meanwhile to stall the enforcement of the administrative order.

Administrative consideration of evidence--par ticu-larly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing neid on their exceptions to it--always creates a gap between the time the record is cicsed and the time the administrative decision is promulgated.

This is especially true if the issues are diffi-cul t , the evidence intricate, and the considera-tion of the case deliberate and careful. If upon the coming down of the order litigants might de-mand rehearings as a matter of law because some new circumstance has arisen, some new rrend has been observed, or some new fact discovered, there would be little hope that the administrative pro-cess could ever be consummated in an order that would not be subject to reopening.

Accord, Unired States v. ICC, 396 U.S. 491, 521 (1970);

Norrnern Indiana Punlic Service Co. (Bailly Generaring Starion, Nuclear-1), ALAS-227, 3 AIC 416, 413 fn. 4 (1974).

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't m 1 I u Applicant submits, as will be discussed below, that Inter-venors have failed to satisfy pertinent Commission require-ments. ,

Intervenors' Motion seeks the reopening of the proceed-ing for an indefinite period and a postponement of Board action on generic safety issues until such time as there has ,

been a " full investigation of the Three Mile Island accident".

Applicant maintains that the Three Mile Island (TMI) accident was not such an event as to bring licensing to a standstill such as is being sought by Intervenors. Applicant advances several reasons for its position. First, the Commission has been actively investigating the implication of TMI on Babcock and Wilcox (B &W) operating plants and those under construction.

To date, the Commission has not sought to suspend the licenses of any of the above described activities. In discussions with the Commission, the Staff stated that the public health and safety was not threatened by continued operation of B&W reactors.

See Public Meeting, Staff Briefing on Generic Implicati- s In Three Mile Incident, April 4, 1979, Tr.6. In discussions with the Qommission the ACRS also stated that operation of B&W reactors would not endanger the public health and safety.

See Joint Meeting of Nuclear Dagulatory Commission and Advisory I

Committee on Reactor Safeguards, April 5, 1979, Tr. 24-27,

32. -1/ Second, Perkins will not be operational until the mid-1980's. It is presumed that well before that time the Com-mission will have completed its investigation and implemented 1/ Applicant is aware of the disclaimer appearing in front of.the cited documents; nu.:~9r. Applicant is strongly of the view that the cited references are pertinent to the instant matter. ^i~7 m L': JJ l

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5 whatever corrective action it determines to be necessary.

Clearly, Perkins will be in a position to acccmmodate such recommendations before it goes operational. In this regard, the operating license forum will provide an opportunity to air such issues. See Pacific Gas & Electric Company (Diablo Canyon ,

Nuclear Power Plant, Unit No. 2) , ALAB-254, 8 AEC 1184, 1193 (1975). Third, in a prior incident, i.e., Browns Ferry,-2/

an accident scenario was involved. The Commission did not call for a moratorium of licensing in that instance, but rather undertook a systematic review of the incident on a generic basis and thereafter, implemented the result of its investigation upon the industry.

Intervenors have raised six specific ma'-" .u s which they allege serve as a basis to reopen the record. Applicant main-tains that an examination of these matters fails to demonstrate, as required by applicable law, that a different result would have been reached if the issues sought to be raised were indeed considered by the Board. Applicant's specific comn'nts to each of the points raised by Intervenors are as follows:-3/

1 Contrary to Intervenors' assertions, Perkin3' Steam Supply System was not designed and manufactured by B&W 2/ Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), Docket Nos. 50-259, 50-260, 50-296.

3/ As the burden rests with intervenors, see Catawba, supra, Applicant has chosen this method as the most expeditious way of responding.

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, u but rather by Combustion Engineering; the steam generator is a U-tube type rather than the "Once-Thru" design used t TMI; the pressurizer, its associated piping and valves are different for Perkins. Many other components and systems are of different design

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including the Auxiliary Feedwater System and the Reactor Vessel.

2. Formal actions concerning highly technical processes should not be based upon newspaper accounts as sug-gested by Intervenors. See Illinois Power Comcany (Clinton Power Station, Units 1 and 2) , L3P-75-59, 2 NRC 579, 587-88 (1975). This is especially the case when such accounts are inaccurate. No pipes were ruptured in the TMI accident; there was a rupture disc which ruptured because it was designed to do so.

One valve appears to have malfunctioned, and this type of valve (Power Operated Relief Valve) is not used in the Perkins design.

3. Despite Intervenors' allegations, the systems and components of Perkins as described in Item 1 above are significantly different from TMI.

4. The generic safety issues cited by the Intervenors, for the most part, do not apply to the TMI incident.

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(a) There were reported small steam generator leaks, but these did not contribute significantly to the incident; (b) The TMI incident was net an Anticipated Transient Without Scram; (c) The steam generator and reactor coolant pump sup-parts did not contribute to the TMI incident; (d) There was no pipe rupture involved in the TMI incident.

(e) There was no break in the Main Steam Line inside or outside of containment during the TMI incident.

(f) There was no overpressurization of the' Primary System. The pressure was not high enough to lift the Code Safety Valves on the pressurizer.

5. Intervenors ' assertion concerning the " bubble of hydrogen" is incorrect. The hydrogen bubble did not form as a direct result o'f the failure of a water system.

6. Relying upon the above five matters, Intervenors assert that significant unresolved issues remain. For the reasons stated atove, Applicant maintains that Inter-venors have failed to raise matters which support this allegation.

On the basis of the above, Applicant submits that Inter-venors have not satisfied the burden that has been placed upon them and accordingly, respectfully requests that Inter-venors' Motien be denied.

Resp tfuliv subm d ted DM J. 21ichael McGarry, III Of Counsel:

William L. Porter, Esq.

Associate General Counsel . 7'"} }gf Cuke Power Company '

April 18, 1979

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOt.

In the Matter of' ) __

)

DUKE POWER COMPANY ) Docket Nos. STN 50-488

) STN 50-489 (Perkins Nuclear Station ) STN 50-490 Units 1, 2 and 3) ) _

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Opposition to Intervenors' Motion to Reopen the Record and To Postpone The Issuance of A Decision on Generic Safety Issue Considera-tions", dated April 18, 1979 in the above captioned matter have been served upon the following by deposit in the United States mail this 18th day of April, 1979.

Elizabeth S. Bowers Charles A. Barth, Esq.

Chairman, Atomic Safety Counsel for NRC Regulatory and Licensing Board Staff U. S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Dr. Donald P. deSylva Washington, D. C. 20555 Associate Professor of Marine Science William A. Raney, Jr., Esq.

Rosenstiel School of Marine Special Deputy Attorney and Atmospheric Science General University of Miami State of North Carolina Miami, Florida 33149 Department of Justice Post Otfice Box 629 Dr. Walter H. Jordan Raleigh, North Carolina 881 West Guter Drive 27602 Oak Ridge, Tennessee 37830 ,

William G. Ptefferkorn, Esq.

William L. Porter, Esq. 2124 Wachovia Building Associate General Counsel Winston-Salem, North Carolina Duke Power Company 27101 Post Otfice Box 33189 Charlotte, North Carolina 28242

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Mary App'erson Davis Mr. Chase R. Stephens Route 4 Docketing and Service Section Box 261 Office of the Secretary Mockeville, North Carolina U. S. Nuclear Regulatory 27028 Commission ~

Washington, D. C. 20555 Chairman, Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Chairman, Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 J. Michael McGg(ry, III

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