ML20088A748
| ML20088A748 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 04/09/1984 |
| From: | Carr A BISHOP, COOK, PURCELL & REYNOLDS, DUKE POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8404130063 | |
| Download: ML20088A748 (15) | |
Text
bol April 9, 1984 UNITED STATES OF AMERICA /
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSI G $7AItd p2:10 In the Matter of )
)
DUKE POWER COMPANY, et--al. ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2)
APPLICANTS' RESPONSE IN OPPOSITION TO PALMETTO ALLIANCE AND CAROLINA ENVIRONMENTAL STUDY GROUP MOTION TO AMEND AND SUPPLEMENT DIESEL GENERATOR CONTENTIONS; OR, IN THE ALTERNATIVE, MOTION FOR ADMISSION OF A NEW DIESEL GENERATOR CONTENTION
- 1. BACKGROUND On March 23, 1984, Intervenors Palmetto Alliance and Carolina Environmental Study Group (CESG) filed a Motion to amend and supplement the recently admitted diesel generator contentions, or in the alternative, that the Board admit a new diesel generator contention.1/ The Board has previously admitted 1/ ntervenors I seek to have the following contention admitted:
The Applicants have not demonstrated a reasonable assurance that the Transamerica Delaval, Inc. emergency diesel generators at the Catawba Nuclear Station can perform their safety function in service because of:
- 1. Applicants' failure to effectively assure that the TDI designed, manu factured and supplied equipment conformed to procurement requirements such as codes, standards and specifications through such measures as proper source evaluation and selection, objective evidence of quality, examination of the equipment upon delivery, and assessment of the effectiveness of
- TDI's Quality Assurance Program; (footnote. continued)
OC oh{3 PDR
two contentions on diesel generators. On February 23, 1984, the Board admitted the crankshaft design part of a three-part contention for which PA/CESG sought admission. The Board denied admission of the other two parts of the contention.
Subsequently, the Board, upon notification of problems encountered (Footnote continued from previous page)
- 2. Design, manufacturing and installation deficiencies in TDI emergency diesel generator components identified recently by the TDI Owners Group as potentially significant problems which may be present in the Catawba model DSRV 16 diesel generators '
including: Connecting Rod Bearings, Pistons, Cylinder Heads, Cylinder Liners, Cylinder Block, Head Studs, Push Rods, Rocker Arm Capscrews, Connecting Rods, Fuel Injection Lines, and Turbocharger;
- 3. Failure by Applicants to demonstrate that the concerns regarding the reliability of TDI diesel generators are not applicable to the specific diesel generators at Catawba through adequate testing and inspection performed specifically for this purpose.
Applicants have not demonstrated the adequacy of their reliance upon generic qualification of each of the Catawba diesels through the testing and inspection of only a limited sampling of components and individual engines.
O The contention which Intervenors originally sought to have admitted read as follows:
The Applicants have not demonstrated a reasonable assurance that the TDI emergency diesel generators at Catawba Nuclear Station can perform their safety function in service because of:
- 1. Inadequate design of the crankshafts;
- 2. Deficiencies in Quality Assurance at TDI;
- 3. Operating performance history of TDI generators at other nuclear facilities.
Only the crankshaft design portion was admitted.
in the testing of the Catawba diesel generators admitted its own contention on site-specific problems.Y II. FACTORS APPLICABLE TO LATE-FILED CONTENTION The factors which apply to the admission of late-filed contentions are the same factors which apply to late intervention codified in 10 C.F.R. 52.714(a)(1).M Duke Power Company, et al.
(Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041, 1047 (1983); see also Statement of Considerations for 62.714, 43 Fed. Reg. 17,798 (April 26, 1978). A balancing of these factors supports the denial of the admission of Intervenors ' late-filed contention.
O The Board's contention reads as follows:
Whether there is a reasonable assurance that the TDI emergency diesel generators at the Catawba Station can perform their function and provide reliable service because of the problems reported in the Applicants' letter to the Board of February 17, 1984. February 27, 1984, Licensing Board Order, at p. 2.
M S ection 2.714(a)(1) lists these factors:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developink a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceedir.g . l 10 C.F.R. 52.714(a)(1).
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l A. Factor One -- Good Cause Intervenors argue that the supplementation of the previous diesel generator contention is based upon information in two reports which they only recently received. Intervenors' motion at p. 6. The first, a February 22, 1984 submittal to the NRC in which Applicants answered 17 questions regarding the TDI diesel generators installed at Catawba, is characterized by Intervenors as providing " Applicants' oversight of TDI's QA program and its testing and inspection experience and plan." Id.
The seventeen questions are not new information; rather such were identified on December 30, 1983 See 12/30/83 letter, Adendum to Tucker, a copy of which was served on Intervenors. Further, l Applicants' February 22 submittal pertains to information previously addressed by this Board and rejected as a basis for a new contention. See Memorandum and Order (Referring Certain Diesel Generator Issues to the Appeal Board), February 23, 1984, (February 23 Order) dealing with TDI's QA program and operating history. Thus, there is no new information contained in this document sufficient to res_ t in the good cause necessary for admission of a new contention or amendment of the admitted contentions. Moreover, the information in that documeat related to Catawba-specific problems has already been made the subject of the Board's contention.
l Intervenors claim as their second basis for a showing of l
l good cause a February 20, 1984 submittal by Mississippi Power and Light Company to the NRC staff concerning the TDI diesel generator at Grand Gulf. This information was forwarded to Intervenors by
Applicants on March 11, 1984 because it contains a summary of results on the admitted crankshaft design portion of Intervenors' contention. The remaining information in the rep'o rt concerns problems - which were known prior to the February 23, 1984 date of i
admission of the crankshaft design contention and which were determined by this Board as unable to support a new contention.
See February 23 Order concerning TDI's QA program and operating history. Indeed, the Board listed a number of Board Notifications in its Memorandum and Order which address such information.
February 23 Order, pp. 2,4.
B. Factors Two and Four -- Availability of Other Means and Other Parties These factors weigh heavily against amending the contention or admission of a new contention. The Board's 4
contention, admitted under its sua sponte authority, provides the best means of providing reasonable assurance that the diesel generators will perform their intended functions and protect the public health and safety, which, at bottom, is the thrust of Intervenors' proffered contentions. The Board's contention is directed to those issues of concern in these proceedings -- the problems and solutions associated with the Catawba diesel generators. The issues raised in Intervenors' proposed contention are in large measure encompassed in the Boards contention; to the extent they are not, they have already been ruled out of this M Applicants did not know whether Intervenors had this analysis i in their possession. Accordingly Applicants provided Intervenors with a copy when they served their March 11 Interrogatories on Intervenors. l l
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proceeding by the Board. Intervenors will participate in the litigation of the Board's contention; thus their interest must be viewed as being protected.
I C. Factor Three -- Petitioner's Ability to Contribute The factor which weighs conclusively against amendment of the existing contentions or the admission of a new contention is the third factor, related to the petitioner's ability to contribute to the proceedings. A review of the voluminous record compiled to date in this proceeding reveals that Intervenors' contribution to the resolution of technical issues has been wanting. A prime example is found in Intervenors' default on their own crankshaft design contention.
In its Order of February 23, 1984, the Board admitted Intervenors' proposed contention on crankshaft design issues, but specifically noted that Intervenors had not convinced it that they could make a contribution on that issue (which, of course, under the regulations Intervenors were required to do when they moved the admission of their contention). Therefore, the Board made admission of the issue contingent on Intervenors showing they could make a contribution to the proceeding by, among other things, identifying a witness to address the technical issues in its own contention. Tr. 12,551.
In addition, Applicants filed 60 specific interrogatories seeking information found in documents relied upon by Intervenors to form their contention. These interrogatories were designed to determine whether Intervenors understood the analyses set'forth in those documents and, correspondingly, their ability to contribute I
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I to the proceeding. In response, Intervenors essentially answered j only one question. Compounding this demonstrated lack of knowledge, and fatally so, is Intervenors' inaction regarding this Board's specific instruction that Intervenors identify witnesses on this contention by April 2, 1984. The Board specifically advised Intervenors that their failure to provide such information would prove fatal. Tr. 12,548, 12,610-11. Despite this, Intervenors have failed to identify any witnesses. Y Intervenors attempt to divert attention from their default on the crankshaft issue by asserting that they have participated actively in this, and other, proceedings and thus must e viewed as being able to make a contribution. This argument misses the mark on two accounts. First, it fails to address Intervenors' ability to contribute to diesel generator matters, which as noted above, they as yet have been unable to do.
Second, it overlooks Intervenors' contribution, or lack thereof, to resolving before this Board the technical issues previously raised by their own contentions.
For example, Palmetto Alliance Contention 16, involving the spent fuel pool, was the first technical issue reached by the Board in this administrative proceeding. Intervenors presented no witnesses of their own. Presumably they intended to rely upon cross-examination of Applicants' and Staff's witnesses to make l
their case on this issue. However, an examination of Intervenors' Y Applicants have filed a motion requesting dismissal of Intervenors' crankshaft design contention for failure to comply with the Board's instruction.
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cross-examination reflects that counsel for Palmetto Alliance spent the major part of his allotted time on matters other than Applicants' direct case. For example, counsel for Palmetto Alliance spent a significant portion of his time seeking to reintroduce matters which this Board had ruled out of the case more than a year before, such as attempting to introduce into evidence two letters related to spent fuel transportation, among other things. Af ter much objection and debate, the letters were denied admission on the grounds of irrelevance. Tr. 10,331-61, 12/8/83. Intervenors' attorney then moved the Board to dismiss the Applicants' application in so far as it sought permission to store spent fuel from Oconee and McGuire at Catawba. That motion was denied. Tr. 10,363-69, 12/8/83. Intervenors' attorney next
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j made a motion to have the Board visit the site to take evidence on cask handling procedures. That motion was denied. Tr. 10,3f0-99, 1
12/8/83.
Intervenors' attorney then sought to pursue questions concerning 7 day old spent fuel instead of 5 year old fuel (which was the subject of the application) and the lethal effects of radiation. These questions were ruled to be outside of Applicants' direct case. Intervenors' attorney was reminded that his cross-examination is limited to those topics covered in direct examination. Tr. 10,414-20, 12/8/83. Intervenors' attorney then asked questions concerning the health effects of radionuclides, despite the subject matter being outside the area'of expertise for 3 which the witnesses were proffered. He was finally instructed to I pursue another line of questioning. Tr. 10,427-33, 12/8/83.
4 Intervenors' attorney devoted most of the remainder of his time to l questioning Applicants' witnesses on pool boiloff, pump operation, and spent fuel pool cooling water sources. Tr. 10,433-77.
12/8/83. Intervenors' attorney then moved to strike certain i
portions of the FSAR. That motion was denied. He then attempted to conduct voir dire of the witnesses, which was denied because he had consumed all his allotted time. Tr. 10,494-501, 12/8/83.
I Finally, having essentially done everything but confront the issue, Intervenors defaulted by not filing proposed findings.
This performance clearly demonstrates Intervenors' inability to contribute to the resolution of technical issues.
, on the issue of reactor vessel embrittlement raised in Palmetto Alliance /CESG Contention 18/44, the Intervenors' only witness was Mr. Jesse L. Riley, who is also the authorized representative in this proceeding of the Intervenor Carolina Environmental Study Group. The Board found Mr. Riley's lack of relevant training and experience in metallurgy to disfavor his
- being allowed to testify on this metallurgical issue, but decided that this lack of traditional qualifications went to the weight rather than to the admissibility of Mr. Riley's expert testimony.
Tr. 11,122, 12/12/83.
A third contention raising technical issues was Palmetto Alliance /CESG Contention DES 17, which challenged the NRC Staff's environmental assessment of the consequences of a severe accident at Catawba. Intervenors alleged that the Final Environmental Statement was fatally flawed because it did l l
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not take sufficient account of conditions of adverse meteorology.
The Intervenors did present an expert meteorologist on this issue, Mr. John Purvis, the State Climatologist for the Wader Resources Commission of South Carolina. PA Exh. 133, Purvis Attachment 1.
However, as his expertise was only in the area of meteorological conditions -an area not in dispute among the witnesses -
Mr. Purvis was unable to comment on the Staff's analysis of those meteorological conditions, which, as the Board recognized, is the focus of the contention. Tr. 11,661-62, 12/14/83. Therefore Intervenors were unable to contribute to the record on this issue.
A final technical issue involved in the hearings to date, first raised during an in camera session but ultimately resolved during a public session, was the presence of laminations in the rolled steel plate used at Catawba. See In Camera (IC)
Tr. 11,951 et seq., 12/8/83. The Intervenors proffered a purported expert witness on this issue, Mr. Elmo Earl Kent.
Tr. 11,935, 1/30/84. The Board allowed Mr. Kent to participate as an expert questioner under 10 C.F.R. 92.733, provided that he read the relevant prefiled testimony first , which he did only minutes before conducting his examination. Tr. 11,945-46, 1/30/84.
- However, the Board subsequently rejected the proffer of Mr. Kent as an expert witness, ruling that the proffer was untimely and that Mr. Kent, a former welder and welding inspector at various other facilities, lacked the necessary relevant expertise by i education or experience in metallurgy or structural engineering.
l l Tr. 12,263-65, 1/31/84.
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In sum, the Licensing Board's experience with the quality of Intervenors' participation on technical issues in this proceeding to date supports a finding that they will'be unable to contribute to developing the record on the technical issues raised
- in their proposed contention, and thus the motion should be denied.
D. Factor Five -- Delay The fifth factor, delay, weighs very heavily against admission of a new diesel generator contention or amendment of the i
existing contentions. This fact has particular significance at the later stages of a proceeding such as this. As the Appeal i
Board explained in Greenwood in ruling on a late intervention petition:
i We have previously stressed the significance which i attaches to the delay factor in striking a balance on all . . . [ factors]. [See Long Island Lighting Co.
! (Jamesport Nuclear Power Station, Units 1& E 2 ALAB-292, 2 NRC 631, 650-51 (1975); Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, i 4 NRC 383, 384-95 (1976).]
1 Detroit Edison Co. (Greenwood Energy Center, Units 2$
i 3), ALAB-476, 7 NRC 759, 762 (1978) (footnote omitted).
To admit the subject proffered contentions at this late date would result in delay. The Emergency Planning Board has conditioned commencement of a May 1, 1984 emergency planning l
evidentiary hearing upon Applicants and Staff stipulation to stay l further discovery on diesel generators until May 11, 1984.
l Applicants are desirous of commencing the emergency planning evidentiary hearing forthwith and have informed the Emergency Planning Board (and this Board) of its commitment to refrain'from
making further discovery demands upon Intervenors, with regard to diesel generators, until May 11, 1984. Applicants are also desirous of commencing hearings on the Board diesel generator contention in late June 1984. Accordingly, little time would be left to discover, and properly prepare positions, on these proffered contentions, as well as the Board's contention.
Inevitably, delay would inure. Such delay takes on added significance when viewed in light of Applicants' operational needs.
E. Balancing the Five Factors The Board is faced with the highly unusual situation in which not one of the five factors weighs in favor of granting Intervenors' motion. Every factor weighs against admitting the new diesel generator contention. The most significant factors --
ability to contribute and delay--weigh conclusively against admission.
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Thus, for the reasons stated, Intervenors' motion should be denied. :- -
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, Respectfully submitted, MJ Allie~rt T. Carf/, 'Jr.
DUKEPOWERCpPANY -
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~PO Box 33189 Charlotte, NC 28242 J. Michael McGarry, III
.bne W. Cottingham Mic.. I D. White s
BISH04 ,.LIBERMAN, COOK ' V. s ,
PURCELL & REYNOLDS s .e' 1200 Sevententh Street, N'.W. '-
Washington, DC 20036 - ' .-
Attorneys for Duke Power-
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DUKE POWER COMPANY, et al. ) Docket No. 50-413
) 50-414 (Catawba Nuclear Station )
j Units 1 and 2) )
A CERTIFICATE OF SERVICE I I hereby certify that copies of " Applicants' Response In Opposition To Pal-4 metto Alliance and Carolina Environmental Study Group Motion To Amend And Supplement Diesel Generator Contentions; Or, In the Alternative, Motion For Admission Of A New Diesel Generator Contention" in the above captioned mat-ter have been served upon the following by deposit in the United States mail
- this 9th day of April, 1984.
~
James L. Kelley, Chairman Richard P. Wilson, Esq.
Atomic Safety and Licensing Board Assistant Attorney Ger.eral i Panel State of South Carolina U. S. Nuclear Regulatory Commission Post Office Box 11549
- Washington, D. C. 20555 Columbia, South Carolina 29211 Dr. Paul W. Purdom Robert Guild, Esq.
I 235 Columbia Drive Attorney-at-Law
, Decatur, Georgia 30030 Post Office Box 12097 Charleston, South Carolina 29412 Dr. Richard F. Foster Palmetto Alliance P. O. Box 4263 2135 1/2 Devine Street Sunriver, Oregon 97702 Columbia, South Carolina 29205 1
Chairman Jesse L. Riley Atomic Safety and Licensing 854 Henley Place Board Panel Charlotte, North Carolina 28207 U. S. Nuclear Regulatory Commission
. Washington, D.C. 20555 John Clewett, Esq.
- 236 Tenth Street, S. E.
'; Chairman Washington, D. C. 20003 Atomic Safety and Licensing Appeal Board Karen E. Long U. S. Nuclear Regulatory Commission Assistant Attorney General Washington, D.C. 20555 N. C. Department of Justice i P. O. Box 629 Raleigh, North Carolina 27602
George E. Johnson, Esq.
Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D.C. 20555 -
William L. Clements, Chief Don R. Willard Docketing and Service Section Mecklenburg County U. S. Nuclear Regulatory Department of Environmental Commission Health Washington, D.C. 20555 1200 Blythe Boulevard Charlotte, North Carolina 28203 J. Michael McGarry, III, Esq. Spence Perry, Esquire Anne W. Cottingham, Esq. Associate General Counsel Bishop, Liberman, Cook, Purcell Federal Emergency
& Reynolds Management Agency 1200 Seventeenth Street, N.W. Room 840 Washington, D.C. 20036 500 C Street, S.W.
Washington, D.C. 20472 f
s ATbert V. rr, Jr.
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