ML20212E888

Licensee Answer in Opposition to Intervenors Motion for Extension of Time to Respond to Licensee Motion for Termination of Proceeding.* Motion Should Be Denied Based on Failure to Show Good Cause.Certificate of Svc Encl

ML20212E888
Person / Time
Site:	Turkey Point
Issue date:	12/30/1986
From:	Reis H FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2082 OLA, NUDOCS 8701050508
Download: ML20212E888 (16)

Text

.,

2672-1 00CKETED UNITED STATES OF AMERICA U37!PC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSI d BBRaf! PS :38 NF i

)

In the Matter of.

)

Docket Nos. 50-250 OLA-1

)

50-251 OLA-1 FLORIDA POWER & LIGHT COMPANY

)

)

(Turkey Point Plant,

)

(Vessel Flux Reduction)

Units 3 and 4)

)

)

LICENSEE'S ANSWER IN OPPOSITION TO INTERVENORS' MOTION FOR EXTENSION OF TIME TO RESPOND TO LICENSEE'S MOTION FOR TERMINATION OF~ PROCEEDING I.

Introduction On November 20, 1986, the Licensee, Florida Power

& Light Company ("FPL"), filed a " Motion to Relinquish Jurisdiction and Terminate Proceeding."

Pursuant to 10 CFR SS 2.710 and 2.730(c), the Center for Nuclear Responsibility l

and Joette Lorion ("Intervenors") had until December 5, 1986, and the NRC Staff

(" Staff") had until December 10, 1986, to file an answer to the motion.

The NRC Staff did file its answer on its December 10 due date, fully supporting the motion to terminate the proceeding.

Intervenors, however, did not submit their opposing Response to the motion until December 15, 1986, ten days out of time.1!

Among other 1/

"Intervenors' Response to Licensee's Motion to Relinquish Jurisdiction and Terminate Proceeding" (December 15, 1986) (hereafter "Intervenors' Response").

8701050508 861230 PDR ADOCK 05000250 h

C PDR

4 things, Intervenors' Response requested that the Licensing Board take certain actions with respect to Contention (b) in this proceeding.

Attached to and filed together with Intervenors' Response was "Intervenors' Motion for Extention of Time to Respond to Licensee's Motion for Termination of Proceeding" (hereinafter " Motion for Extension of Time").

FPL hereby submits this answer in opposition to the Motion for Extension of Time.

II.

Discussion Under 10 CFR S 2.711, a Licensing Board may grant an extension of time "for good cause."

As demonstrated below, the Intervenors have failed to provide the good cause required by 10 CFR S 2.711 for an extension of time to file their Response.

Moreover, they have failed to provide any cause or excuse whatsoever for their lateness in requesting the extension of time.

A party to an NRC proceeding must meet its procedural obligations, including answering or responding to motions filed by adverse parties within the time periods established by the rules of practice, in a diligent and timely fashion.

Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813, 815 (1975).

This is particularly true where the party is represented by counsel.

Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-75-6, 1 NRC 227, 231 (1975).

Even if a layman submits a tardy pleading after the time limits have been

. explained to him, it will be rejected.

Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-547, 9 NRC 638, 639 (1979).

A counsel with experience in NRC proceedings, such as Intervenors' counsel, should not be extended more lenient treatment.

Intervenors in this proceding have consistently failed to comply with the NRC's rules of practice regarding the timeliness of filing of pleadings.

The instant " Motion for Extension of Time" in fact constitutes the fifth time in this proceeding where Intervenors have filed a motion for an extension of time on or after the date the substantive filings were due.

(See Appendix to this pleading).

This practice, of course, is in violation of established Commission policy that requests for an extension of time should be received before the specified time has expired.

Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, i

13 NRC 452, 453-4 (1981).

In addition, in its Order of j

February 5, 1986, granting Intervenors' requests for an l

extension of time for filing Proposed Findings of Fact and Conclusions of Law, this Licensing Board expressly instructed the Intervenors that:

" Motions for extensions of time are to be transmitted in sufficient time to be in the hands of the Board no later than the day before the substantive document is due.

E.g.,

Louisiana Power

& Light Co. (Waterford Steam Electric Station, Unit 3),

ALAB-ll7, 6 AEC 261 (1973)."

Nevertheless, this current, and very next, motion for such an extension was not filed l

_4_

until ten days after the substantive document was due with no explanation whatsoever offered for disregarding the Board's instructions, f

The course of conduct described above is sufficient grounds for denying the Motion for Extension of Time.

In addition, the Motion should be denied because none of the execuses offered by the Intervenors constitute " good cause" for an extension of time.

First, Intervenors contend that their " counsel is a sole practioner [ sic], and the press of other business interfered with his ability to adequately address the issues before this date."

This contention does not even purport to explain why the extension request could not have been made before December 5.

In any event, this by i

now rote excuse (see Appendix) should not be regarded as good cause.

Second, Intervenors contend "that filing of this motion out of time will not delay the proceedings in the above-captioned i

matter since the hearing has already been held and the i

license amendments issued."2/

This is simply a non sequitur.

i If FPL's Motion to Relinquish Jurisdiction and Terminate

(

the Proceeding is granted, the proceeding will be over.

2/

In this and the succeeding claims of " good cause,"

the Intervenors appear to track the factors to be balanced in acting upon late petitions to intervene in licensing proceedings as set forth in 10 CFR S 2.714.

The relevance of each of those factors to good cause for an extension of time request pursuant to 10 CFR S 2.711 is not clear.

In any event, each claim lacks merit.

-em

,,e.w.

v- - -, -

g-

--m,

,-c.

--,--,--a

,w

,,,..,e

.,---n-,------,..-

-, - - ~,

If the Board takes any further action, as requested by the Intervenors, the proceeding will be extended.

This will obviously " delay the proceeding."

Finally, Intervenors "believe that their continued participation on this issue will both develop a sound record and protect the public interest The Motion for Extension of Time does not specify how the Intervenors will help to " develop a sound record."3/

In fact, the i

claim is meaningless, since the record in the proceeding is closed.

(See Tr. 913).

Consequently, thtre will be no further record to which the Intervenors could contribute.

Perhaps the fairest way to view the Intervenors claim to be able to " develop a sound record" is to consider it in the context of the requests to the Licensing Board contained in the Intervenors' Response.

In their Response, the Intervenors asked the Licensing Board to require "the Licensee to perform an ECCS analysis with the corrected version of the BART computer code" and "to revoke the subject license amendments" if the results of the analysis do not comply with the requirements 3/

As a basis for the requested extension, the Motion makes two additional statements which cannot withstand l

analysis.

First, the Motion states that "their [ sic]

is no other forum for the Intervenors to raise their safety concerns."

However, the Board has already l

provided the Intervenors with a forum for raising l

their concerns and the Intervenors have not provided i

sufficient justification for reopening this forum.

Second, the Motion states that "the other parties in the proceeding have a vested interest in the outcome and would not protect the public interest adequately."

Obviously, this statement is incorrect, since the Commission and its organs are vested with the responsibility to protect the public health and safety, i

^.

in 10 CFR S 50.46 and Part 50 Appendix K.

(Intervenors' Response, p. 4).

Since these requested actions are without justification based upon the evidence currently in the record, the requests necessarily comtemplate a reopening of the record on Contention (b) in this proceeding.

If the Board were to reopen the record in response to the Intervenors' requests, the Intervenors' claim regarding their ability to contribute to the record would have meaning.

However, as demonstrated below, it is apparent that the Intervenors have not provided a sufficient bases for reopening the record on Contention (b).

10 CFR S 50.46 and Part 50 Appendix K set forth acceptance criteria for emergency core cooling systems (ECCS) and the models used to evaluate these systems.

Among other things, these criteria state that an ECCS is acceptable if the peak clad temperature (PCT) calculated by an acceptable evaluation model does not exceed 2200 F in the event of a loss-of-coding accident (LOCA).

Contention (b) questions whether a model used by the Licensee in support of its amendment application meets the Commission's ECCS acceptance criteria.

In an Order dated August 16, 1985, the Licensing Board I

granted summary disposition of Contention (b).A!

This I

l 4/

This Order necessarily found that the Intervenors had presented no genuine issue of material fact requiring an evidentiary hearing with respect to Contention (b).

As is explained below, nothing in the Intervenors' Response raises a genuine issue of material fact on L

Contention (b) or calls into question the correctness j

of this Order.

Order recited the facts that the Licensee performed evaluations using two different ECCS models approved by the NRC (one model used the FLECHT correlation and the other used BART code), that the Intervenors only raised concerns regarding BART, and that the PCT calculated by each model was less than 2200 F.

Since the Intervenors raised no genuine issue about FLECHT or whether the PCT predicted by FLECHT meets the 2200 F standard, the Board granted summary disposition of Contention (b) notwithstanding the Intervenors' concerns regarding BART.

(See Order, pp. 23-29).

After issuance of this Order, the NRC Staff submitted Board Notification BN-86-17 on June 30, 1986.

BN-86-17 stated that there was a "need for additions and corrections to the currently approved 1981 Emergency Core Coding System (EECS) evaluation model [ including FLECHT] and the 1981 ECCS evaluation model including BART."

In particular, BN-86-17 stated that both of these models did not properly account for the effect of control rod thimbles, which results in a 6 to 12 F increase in PCT calculations using FLECHT i

and a 10 to 20 F increase in PCT calculated using BART.

Additionally, BN-86-17 stated that 100 F should be added to the PCT calculated using BART to account for removal of a hot assembly power adjustment.

BN-86-17 further stated that, when these increases are taken into account, the PCT calculated by each model would still be less than the regulatory limit of 2200*F.

Consequently, BN-86-17 concluded that this information does not adversely affect the rationale underlying the Board's grant of summary disposition of Contention (b).

Finally, BN-86-17 noted that the Staff was considering whether additional action was necessary and promised to keep the Board informed of the Staff's actions regarding this matter.

In view of BN-86-17, the Licensing Board decided to retain jurisdiction over Contention (b) when it issued its Initial Decion on July 24, 1986.

(See LBP-86-23, slip op. at 39-40).

Thereafter, the Staff issued Board Notification BN-86-21 (October 23, 1986) which, among other things, pointed out again that a reanalysis using the FLECHT correlation would result in at most a 12 F estimated increase in the previously calculated peak cladding temperature, and that the 120 F increase using the BART coce would be largely mitigated by an addendum in the code approved by the NRC.

Thus, BN-86-21 concluded:

In summary, the slight change of 12 F has no significant impact on the previously calculated PCT of 2130 F for the Turkey Point Plant and a reanalysis using the approved addendum to the BART code would result in only a slight change in the previously calculated PCT of 2051 F for the Turkey Point Plant, thus both analysis would result in a PCT less than 2200 F and satisfy 10 CFR 50, Appendix K and 10 CFR 50.46.

The Intervenors' requests for Board action regarding Contention (b) are based almost entirely upon BN-86-17.

However, BN-86-17 does not form a sufficient basis for reopening the record on Contention (b).

Under 10 CFR S 2.734, a motion to reopen a closed record to consider additional evidence will not be granted unless (1) the motion is timely,

9-addresses a significant safety or environmental issue, and demonstrates that a materially different result would be or would have been likely had the newly proferred evidence been considered initially; and (2) the motion is accompanied by one or more affidavits by competent individuals or experts in the appropriate disciplines which set forth the factual or technical bases for the movant's claim that the criteria in (1) are satisfied.

Thus, a party seeking to reopen the record has a " heavy burden" to bear.

Kansas Gas and Electric Co. (Wolf Creek Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978).

As discussed below, Intervenors' reliance on BN-86-17 does not satisfy this burden.

BN-86-17 does not raise a significant safety or environmental issue and does not support a result which is materially different from the Board's order granting summary disposition of Contention (b).

As BN-86-17 itself notes, use of a corrected ECCS model with FLECHT would only cause a 6 to 12 F increase in calculated PCT.

A change of this magnitude l

is not significant.

See 10 CFR Part 50, Appendix K, SII.l.b l

(which defines a "significant change" in an ECCS evaluation model as a change that would result in a change or more than 20 F in PCT).

Furtheremore, as noted in BN-86-17, use of corrected models including either FLECHT or BART would not result in a calculated PCT temperature which exceeds the 2200 F regulatory limit.

Therefore, the performance of a reanalysis using these corrected models would not result in a material change in the Board's conclusions granting summary disposition of Contention (b).

l l

Intervenors state that they "have reason to believe" that the regulatory criterion would be exceeded if the Board where to require the Licensee to perform a reanalysis with the corrected version of BART.

(Intervenors' Response, p.3).

However, the Intervenors have offered no evidence in support of this speculation and have not supplied any affidavits from competent experts to justify this claim.

As the Appeal Board stated in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-775, 19 NRC 1361, 1366-67 (1984), " supporting information must be more than mere allegations; it must be tantamount to evidence."

Consequently, the Intervenors' " belief" is not sufficient to warrant a reopening of the record on Contention (b).

The Invervenors appear to be of the opinion that the Board should require a reanalysis of whether the license amendments comply with the Commission's limits, merely because the analysis performed in support of the amendments did not use the corrected BART code.

(See Intervenors' f

Response, pp.

3-4).

However, the Staff has concluded, based upon its review, that these limits would not be exceeded; in the absence of any evidence to the contrary, it would be a pointless (and expensive) exercise to perform such a reanalysis.

Furthermore, the Board has no authority to order the Licensee to perform a reanalysis for the purpose of determining whether the record should be reopened. As I

l i

1

the' Commission stated in Cleveland Electric Illuminating Co. (Perry Nuclear Plant, Units 1-and 2), CLI-86-7, 23 NRC 233, 235 (1985):

[A] Board is to decide a motion to reopen on the information before it and has no authority to engage in discovery in order to supplement the pleadings before it.

Simply put, the burden of satisfying reopening requirments is on the movant and Boards must base their decisions on what is before them.

i i

Thus, it would be improper for the Board to order the Licensee to perform a reanalysis in order to decide whether the record on Contention (b) should be reopened.

e Since the Intervenors have not presented sufficient justification to reopen the record, their claimed ability to contribute to the development of a sound record is irrelevant.

Consequently, their claims do not provide an adequate basis for granting an extension of time to file Intervenors' Response.

III.

Conclusion Intervenors' Motion for Extension of Time does not offer l

sufficient " good cause" for an extension of time, nor have the Intervenors provided any justification for their untimely

{

f I

L

-~

. ~.

.,m_-

. filing of this motion.

Consequently, the Motion should be-denied.

Respectfully submitted, FJ Harold F.

Reis Michael A.

Bauser CO-COUNSEL Newman & Holtzinger, P.C.

Norman A. Coll 1615 L St., N.W.

Steel Hector & Davis Washington, D.C.

20036 4000 Southeast Financial (202) 955-6600 Center Miami, FL 33131-2398 Attorneys for (305) 577-2800 Florida Power & Light Company December 30, 1986 i

I l

.- -__-. ~..

APPENDIX l

Summary of.Intervenors' Late Filings And Requests for Extensions of Time T

'l (1)

Motion For Leave To File Late - March 3, 1984.

Intervenors requested leave to. file a brief one day late.

The brief was due on March 2, 1984.

Both the brief and request j

for leave to file late were filed on March 3.

Good cause t

explained as " attorney for the petitioners is a sole l

practioner [ sic] and the press of other unexpected business and the non-availability of a transcript... occasioned the' delay..."

(2)

Motion For-Leave To File Late - March 8, 1984.

Intervenors requested leave to file a response to Staff and FP&L j

responses one day late.

Intervenor response was due on March 7, 1984.

Both the response and the motion for leave to file late were filed on March 8, 1984.

Intervenors-explained that "Although the brief was written in full March 7, 1984, delays in typing and reproduction have i

necessitated this request...[to file late]."

i I

(3)

Intervenors Motion For Extension Of Time To Respond To l

Interrogatories - June 29, 1984.

Answers to interrogatories were due June 15, 1984.

On June 29, 1984 intervenors requested a 25 day extension of time to respond.

Intervenors claimed that sufficient good cause was provided because "Intervenors counsel, who is a sole practioner [ sic]...recently experienced the final illness and death of his father..."

l (4)

Motion For Leave To File Late - October 12, 1984.

Intervenors requested leave to file on October 12, 1984 a response that was due on October 5, 1984 to an FP&L motion.

Intervenors i

alleged that "the good cause requirements for granting i

the motion are met since Intervenors counsel, a sole practioner [ sic], has experienced a press of other business that interfered with his ability to timely respond."

i (5)

Intervenors' Motion For Extension Of Time To Respond i

To Licensee's Motion For Summary Disposition - October r

l 8, 1985.

Intervenors response was due on October 10, 1985.

Intervenors filed a timely request for an extension of time to October 25, 1985.

Intervenors listed the i

following as providing good cause for the requested extension:

1 Intervenors' counsel is a sole practioner [ sic), and the press of other business, which includes [ oral argument and a brief due in related matters in Federal Court}...

interferes with his ability to adequately address the jl -

issues..."

I i

j i

.., _ _ - _ _. _,.. _ _ _,. _ _ _ _ _ _ _ _ ~,,,,... _ _ _,.., - -

Intervenors also listed the ability of an expert witness to complete a supporting affidavit as good cause.

(6)

Motion For Extension Of Time To File Intervenors Proposed Findings Of Fact And Conclusions Of Law - January 31, 1986.

Intervenors' proposed findings were due on January 31, 1986 and the request for extension of time was filed on that day.

In granting the requested extension, on February 5, 1986, the Board noted that the request was late in that motions for extension of time should be in the hands of the Board no later than the day the substantive pleading is due.

Intervenors alleged that good cause existed for the extension because "Joette Lorion...liason between counsel and expert witness,...was hospitalized...In addition (due to delays in the transmission of materials] Dr. Gordon Edwards...need[ed] additional time to act as technical advisor in preparation of Intervenors Brief."

UNITED STATES OF AMERICA FERKfiU NUCLEAR REGULATORY COMMISSION

- WiC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD,87 JAN -2 PS :38 0FFl...

?

)

50 Chin L

• i d In the Matter of

)

Docket Nos. 50-250"dNA-1

)

50-251 OLA-1 FLORIDA POWER & LIGHT COMPANY

)

)

(Turkey Point Plant,

)

ASLBP No. 84-496-03 LA Units 3 and 4)

)

(Vessel Flux Reduction)

)

CERTIFICATE-OF SERVICE I hereby certify that copies of the attached " Licensee's Answer in Opposition to Intervenors' Motion for Extension of Time to Respond to Licensee's Motion for Termination of Proceeding" were served on the following by deposit in the United States mail, first class, postage prepaid and properly addressed, on the date shown below.

Dr. Robert M. Lazo, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Dr. Richard F. Cole Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Secretary U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Attention:

Chief, Docketing and Service Section I

(Originals plus two copies) i

--,,,-~,,,-.,,,,_,,,.--,,,.,--------c,,.-r n,,-,,,--------r,,-m,,m-

-,,n.,--,n,,

n

-,c---

- - - - - - - - - - - - - -, + - - -, -

2 Mitzi A. Young, Esq.

Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Norman A. Coll, Esq.

Steel, Hector & Davis 4000 Southeast Financial Center Miami, FL 33131-2398 Martin H.

Hodder, Esq.

1131 N.E.

86th Street Miami, FL 33138 Dated this 30th day of December, 1986.

//+w'1/

Hdrold F.

Reis Newman & Holtzinger, P.C.

i 1615 L Street, N.W.

Washington, D.C.

20036 Telephone:

(202) 955-6600 Attorneys for Florida Power & Light Company l

_ _ _ _ _. _ _. _