ML20050C381

Reply to s Sholly Response to ASLB Oral Order Re Motion to Reopen Record.Requisite Showing Not Made That Proposed Control Room Recording Sys of Sufficient Safety Significance to Reopen Record.Certificate of Svc Encl

ML20050C381
Person / Time
Site:	Three Mile Island
Issue date:	04/02/1982
From:	Baxter T METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20050C371	List: ML20050C370 ML20050C381
References
NUDOCS 8204080451
Download: ML20050C381 (13)

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4 p rj v r.T" LIC 4/2/82 l

.g p -5 fM M UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289 '

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

LICENSEE'S REPLY TO INTERVENOR SHOLLY'S RESPONSE TO ORAL BOARD ORDER REGARDING MOTION TO REOPEN THE RECORD I. Introduction Pursuant to its Memorandum and Order of March 2, 1982, the Board presided over a preliminary hearing on March 18, 1982, the purpose of which was to determine whether the evidentiary record in this proceeding should be reopened. The need for this preliminary hearing grew out of motions filed by intervenors UCS and Sholly on September 10, 1981, which requested that the record on plant design and procedures issues be reopened to receive additional information regarding a memorandum entitled

" Recommendations of TMI-2 IE Investigation Team (Operational Aspects)" (the " Martin Report"). Intervenors assert that several of the recommendations set forth in the Martin Report are sub-stantively the same as the positions adopted by the intervenors during the litigation of several contentions in this proceeding, and contrary to those put forward by the Staff.

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. Licenseeb ! and the Staff ! filed responses opposing the intervenors' motions, arguing that the motions were not timely (given the notice of the Martin Report in the May, 1980 Action Plan, NUREG-0660) and did not raise such significant new safety issues to warrant reopening the record. The Board took the matter under advisement, and on February 9, 1982, following the issuance of its. Partial Initial Decision on plant design and procedures issues, initiated a telephone conference call in order to establish a procedure for resolution of the motions. During the conference call, tne Board set forth its findings as follows:

(1) The discovery process in this case failed, through no fault of the Staff or intervenors, re-sulting in the late discovery of the Martin Report.

The Board, therefore, found that the motions were timely made.

(2) The affidav.ts submitted by the authors of the Martin Report Jn support of the Staff's Response of September 30, 1981, did not reveal the technical bases for the Martin Report recommendations and the Board therefore could not determine whether the information underlying the Martin Report would materially affect its Partial Initial Decision.

See February 11, 1982 Memorandum of February 9, 1982 Telephone 1/ Licensee's Answer to Motions by Intervenors Sholly and UCS to Reopen the Record and for Further Relief, dated October 5, 1981.

2/ NRC Response in Opposition to Sholly and UCS Motions to Reopen the Record and for Further Relief, dated September 30, 1981.

, Conference Regarding Intervenors' Motions to Reopen Evidentiary Record (" Memorandum of February 9, 1982 Telephone Conference"),

at 2, 3. The Board further suggested several procedures for resolving the second issue set forth above, and at the close of the conference call the parties agreed to attempt to proceed informally in order to bring this matter to a conclusion. Mem-orandum of February 9, 1982 Telephone Conference at 4-6.

For reasons which need not be set forth here, informal procedures could not be agr.eed upon, and therefore the Board ordered that a preliminary hearing be held on March 18, 1982, at which time the Martin Report authors would be made available for examination by the parties.3/ See, generally, Memorandum and Order Setting Preliminary Hearing, dated March 2, 1982.

In accordance with this Order, the preliminary hearing was convened on March 18, 1982 and fiv.e of the Martin Report authors 4/ were subjected to extensive examination by the parties as to the bases for their recommendations. At.the close of the examination of the witnesses,. the Board requested that the intervenors submit briefs directed particularly at how the testimony given at the preliminary hearing developed technical bases (i.e., facts and analyses) not included in the positions presented by the Staff at the hearing-in-chief or, with reasonable diligence by parties adverse to the Staff, 3/ Informal interviews of two of the Martin Report authors were conducted on March 17, 1982 by the intervenors. The Board was not in attendance.

4/ Messrs. T. T. Martin, D. R. Hunter, A. N. Fasano, D. C.

Kirkpatrick and R. D. Martin (the I&E Operations Team leader).

Two additional members of the Operations Team are no longer employed by the Staff. Tr. 27,060 (R. D. Martin).

could not have been produced.EI Tr. 27,185-27,187 (Smith). The Board additionally provided a schedule for submitting responses

,- to the intervenors' brief.

II. STANDARDS FOR REOPENING In order for the moving party to prevail in reopening an evidentiary record, the motion must be both timely presented 6/

and addressed to a significant safety or environmental issue.

Further, where, as here,,the initial decision has already been rendered, the proponent of the motion must establish that a different result would have been reached if the material submitted in support of the. motion had been initially considered. Kansas Gas and Electric Company, et al. (Wolf Creek Generating Statior.,

Unit No. 1), ALAB-462, 7 N.R.C. 320, 328 (1978); see also, Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units _1 and 2), CLI-81-05, 13 N.R.C. 361, 362-363 (1981).

In order to' meet the standards set forth above, the Board

, has mandated that 4

[t]he burden would be upon the intervenors to demonstrate in detail that-the facts and analyses underlying the Staff positions on 5/ Intervenors.were given the opportunity at the preliminary Eearing to present oral argument outlining any-non-technical bases.

in support of their motion. See Tr. 27,186-28,187 ..(Smith) .

6/- Licensee maintains that the'intervenors' motions to reopen were not timely made. See " Licensee's Answer to Motions...",

' dated October 5, 1981 at 4-11. However, in view of the Board's holding that the motions were timely under the facts of this case (Memorandum of February 9,1982 Telephone Conference at 2) ,

Licensee will not repeat those arguments here.

l

, the respective issues during the hearing did i not include the facts and analyses underlying the Martin Report conclusions. Implicit but unstated in this step was the requirement that it be demonstrated.that any excluded material facts and analyses would materially affect the Board's decision.

Memorandum of February 9, 1982 Telephone Conference at 4-5, see also Tr. 27,187 (Smith).

In addition to the general standards of law for reopening an evidentiary record and the specific demonstration required by the Board, Licensee believes that the Board's consideration of Mr. Sholly's motion must also be guided by the scope of the hearing as set forth in the Commission's Order and Notice of Hearing, that is, whether the short-term and long-term actions recommended by the Director of Nuclear Reactor Regulation are necessary and sufficient to provide reasonable assurance that the facility can be operated without endangering the health and safety of the public. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), CLI 79-8, 10 N.R.C. 141, 148 (1979).

III. ARGUMENT Pursuant to the Board's order announced at the March 18, 1982 preliminary hearing, intervenor Sholly submitted his

... Response to Oral Board Order Regarding Motion to Reopen the Record" on March '26, 1982 '("Sholly Response"). In accordance with the Board's request that the intervenors identify any portions of their original motions which have been withdrawn as a result of information developed during the preliminary hearing (Tr. 27,188)

. Mr. Sholly completely withdrew those portions of his original motion which dealt with Martin Report recommendation C.l.a.15 (Instrumentation Failure Modes) and recommendation C.1.b.3 (ICS).

Sholly Response at 4, 9.

Mr. Sholly's initial "... Motion to Reopen the Record...",

dated September 10, 1981 ("Sholly Motion") also sought to reopen the record with respect to Martin Report recommendation C.l.a.16, Multipoint Recorders. Sholly Motion at 7. Mr. Sholly now with-draws his motion with respect to this issue, but suggests that the Board consider requesting the Staff to examine the use of multipoint recorders in the TMI-1 control room and that this issue be reported to the Commission in connection with its immediate effectiveness review. Sholly Response at 5. With respect to the present TMI-l control room recorders, Licensee calls the Board's attention to Licensee Ex. 23, "A Review of the Three Mile Island Unit 1 Control Room from a Human Factors View-point." The review team which prepared that report specifically recommended that Licensee initiate a long-term program of recorder replacement following appropriate testing of new designs.2/

Lic. Ex. 23 at 14-15 and App. B at 26-27. Licensee has committed to undertake detailed engineering studies in response to the review team recommendations. Lic. Ex. 33 at 3. In view of this commit-7/ Mr. Sholly asserts that had he been aware of criticisms of the control room recording systems, such as that set forth in Martin

~

Report recommendation C.1.a.16, he would have raised this issue on cross-examination. Sholly Motion at 7; see'also Sholly Response at'5. As discussed above, Licensee's human factors review of the control room did note a number of shortcomings with the present recorders which parallel the Martin Report recommendation, yet Mr.

Sholly did not pursue this issue on cross-examination with Licensee's witnesses. See, generally, Tr. 10,239-10,310.

. ment, Licensee sees no point in requiring further Staff review or Commission action.

The sole remaining item for which Mr. Sholly has renewed his motion to reopen relates to Martin Report recommendation C.l.a.4, Control Room Sound Recording System, which Mr. Sholly contends provides support for the audio / video taping system proposed in Sholly proposed finding 160. Sholly Response at 5, passim. Intervenor Sholly asserts that the testimony presented at the preliminary hearing establishes that the lack of such a recording system co,nstitutes a significant safety issue.8/ Id.

at 7. Licensee maintains the positions set forth in its reply findings 155-158 and contends that the testimony presented at the preliminary hearing failed to establish this as a significant safety issue.

In explaining the basis for the recording system recommendation, Mr. R. D. Martin testified that one of the difficulties encountered by the IE team was establishing when actions occurred which were not automatically recorded. Mr.

Martin further testified that "[t]his recommendation falls in the general category of, given that amount of inconvenience, 8/ Licensee notes that intervenor Sholly's response did not explicitly address one of the points requested by the Board --

whether the bases for the Martin Report recommendation differ from the bases underlying the positions adopted by the Staff during the hearing. Licensee submits that there are no such differences; rather, both groups of witnesses considered the advantages, for post-accident evaluation and investigation, of a recording system. Compare Tr. 10,498-10,501 (Ramirez, Price) and Tr. 27,158-27,160 (R. D. Martin)-. The two groups merely reached different conclusions, based no doubt on the different viewpoints of the two -- human factors considerations.vs. ease of investigation.

o  !

_.8-wouldn't it have been nice if there was a recording system" that the investigators could use to reconstruct events. Tr.

27,158 (R. D. Martin) (emphasis added); see also Tr. 27,163 (R. D. Martin).' Licensee does not dispute that a control room

-recording system may be helpful in conducting an after-the-fact investigation or in analyzing operator response to a transient and other human factors considerations.2/ See Sholly Response at 8. A helpful investigative tool does not, however, rise to the level of a significant safety issue.1S/ A control room recording system, by itself, will do nothing to prevent an acci-dent from occurring at TMI-1 nor will it mitigate the consequences of an accident at TMI-1. Intervenor Sholly acknowledges this when he characterizes the system as one which could " assist in the evaluation of future accidents -(should there by any) and transient events." Sholly Response at 8 (emphasis added).

In that the proposed system would not provide any real-time capability to protect the public health and safety, Licensee fails to see how this type of recording system could be deemed "significant" or "necessary", within the scope of this proceeding.

Here guidance may be taken from the Board's Partial Initial Decision, holding that necessary modifications, within the terms of the Commission's hearing order, are those "which would produce 9/ The_ potential uses of-various recording systems in evaluating operator action are being studied-by Licensee. See Licensee RF 158.

10/ -Indeed, while the Martin Report authors stated that a recording system would be nice and would have made the TMI-2 investigation easier, at no point did they characterize such a system as required or.necessary to conduct a-proper investigation.

See, generally, Tr. 27,158-27,163.

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!5 1 ,f a? substantial and additional protection to the public health and n' O>

' safety...". PID 1689. There has been no showing made that a control room recording system would provide even an incremental addition to the level of protection afforded the public during

.TMI-l operations.

Intervenor Sholly has also attempted to overcome the concerns expressed by the Board, the Staff and Licensee regarding the inhibiting factor that recording would have. See PID 1920, Licensee RF 156, 158. Mr. Sholly cites Mr. R. D. Martin's testimony that these potential chilling effects were considered, but the recommendation as written was reached nonetheless. .Sholly Response at 7. Licensee here believes that the Board must weigh the respective qualifications of the earlier Staff witnesses with

the Martin Report authors -- and must conclude, based on the human factors considerations inherent in such a system, that the i opinion of those with expertise in this field must hold sway.

In sum, then, Licensee does r^4 balieve that intervenor

, Sholly has made the requisite showi ti th t the proposed control room recording system is of suffit.ient alety significance to-warrant reopening the evidentiary record on this issue or that-

.a'different result would have been reached initially if this

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additional evidence had been considered. Accordingly, the Board should deny Mr. Sholly's motion.

Respectfully submitted SHAW, PITTMAN, POTTS & TROWBRIDGE w <

Thomas A. Baxter, P.C.

Counsel for Licensee 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1090 Dated: April 2, 1982 5

! LIC 4/2/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In 'the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Stat.'on, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Reply to UCS' Comments. Subsequent to Preliminary Hearing Concerning the Martin Report" and " Licensee's Reply to Intervenor Sholly's Response to Oral Board Order Regarding Motion to Reopen the Record" were served this 2nd day of April, 1982, by hand delivery upon the parties identified by an asterisk and by deposit in the U.S. mail, first class, postage prepaid, to the other parties on the attached Service List.

Thomas A. Baxter, P.C.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Dccket No. 50-289

) (Restart)

(Three Mile Island Nuclear ) -

Station, Unit No. 1) )

SERVICE LIST

• Ivan W. Smith, Esquire John A. Ievin, Esquire Chai=ran Assistant Counsel AtcInic Safety and Licensing Pennsylvania Public Utility ,Ccmnission Board P,0. Box 3265 U.S. Nuclear Regulatory C = iasion Fa M ahurg, Pennsylvania 17120 Washington, D.C. 20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Rcbert Adler, Esquire AtcInic Safety and Licensing Assistant Attorney General ,

Board Panel 505 Executive House 881 West Outer Drive P.O. Box 2357 Oak Ridge, Tennessee 37830 Harrisburg, Pennsylvania 17120 Dr. Linda W. Little John E. Minnich Atcmic Safety and Licensing Chaiman, Dauphin 03unty Board Board Panel of Ccmnissioners 5000 Hermitage Drive Dauphin County Courthouse Raleigh, North Carolina 27612 Front and Parket Streets Harrisburg, Pennsylvania 17101 James M. Cutchin, IV, Esquire Office of the Executive Legal Director Walter W. Cohen, Esquire U.S. Nuclear Regulatory Ccmnission Consumer Advocate Washington, D.C. 20555 Office of Consener Advocate 1425 Straterry Square Docketing and Service Section Harrisburg, Pennsylvania 17127 Office of the Secretary U.S. Nuclear Regulatory Connission Dr. John H. Buck Washington, D.C. 20555 Atcznic Safety and Licensing Appeal Board Panel Gary J. Edles, Esquire U.S. Nuclear Pagulatory Ccmrission Chairman Washington, D.C. 20555 Atcm1 Safety and Licensing Appeal Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Comnission AtcInic Safety and Licersing Acceal pg Washington, D.C. 20555 U.S. Nuclear Regulatory C - insion Washington, D.C. 20555

. Jordan D. Cunningham, Esquire Pcbert Q. Pollard 2320 North Second Street 609 M:ntpelier Street Harrisburg, Pennsylvania 17110 Baltinere, Maryland 21218 Ms. Iouise Bradford Chauncey Kepford 2II ALERr Judith H. Johrsrud 1011 Green Street Environmental Coalition on N M aar Power Harrisburg, Pennsylvania 17102 433 Orlando Avenue State College, Pennsylvania 16801 Ellyn R. Weiss, Esqtu.re Harnon & Wai=s Marvin I. Iewis 1725 Eye Street, N.W., Suite 506 6504 Bradford Terrace Washington, D.C. 20006 Philadelphia, Pennsylvadia 19149 Steven C. Sholly Marjorie M. Aanodt Union of Concerned Scientists R. D. 5 1346 Connecticut Avenue, N.W., Suite 1101 Coatesville, Pennsylvania 19320 Washington, D.C. 20036 Thorras J. Germine, Esquire Ga.11 B. Phelps Deputy At'wrney General ANGRY Division of Iaw - Rcam 316 245 West Philadelphia Street 1100 Raynend Boulevard

. York, Pennsylvania 17404 Newark, New Jersey ~07102 William S. Jordan, III, Esquire Harnen & Weiss 1725 Eye Street, N.W., Suite 506 Washingten, D.C. 20006

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