ML20148H821

New England Coalition on Nuclear Pollution Reply to Applicant & NRC Staff Briefs Re Low Power Operations.* Motion for Leave to File Reply to Applicant Memo in Support of Low Power Operation.Certificate of Svc Encl

ML20148H821
Person / Time
Site:	Seabrook
Issue date:	01/14/1988
From:	Ferster A HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20148H795	List: ML20148H792 ML20148H821 ML20148H871
References
OL-1, NUDOCS 8801270311
Download: ML20148H821 (13)

Text

- - - _ _ - _ _ _ - _ _ . _ _ _ _ _ _

• g - <

January 14, 1988 EO UNITED STATES NUCLEAR REGULATORY COMMISSION 00fpN{C BEFORE THE ATOMIC SAFETY AND LICENSING BOARD - . _ - , _

18 JM 26 P2:24

)

In the Matter of ) ((C fi f;hif ,5[- '

) fi;/.h '~

Public Service Company of )

New Hampshire, et al. ) Docket Nos. 50-443 OL-1

) 50-444 OL-1 (Seabrook Station, Units 1 & 2) ) ONSITE EMERGENCY

) PLANNING & TECHNICAL

_) ISSUES NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S REPLY TO APPLICANTS' AND NRC STAFF'S BRIEFS REGARDING LOW POWER OPERATIONS I. Introduction Intervenor New England Coalition on Nuclear Pollution

("NECNP") hereby requests leave to file a reply to Applicants' Memorandum in Support of Low Power Operation, and the NRC Staff Response to Licensing Board Order of November 27, 1987, pursuant to its authority under 10 C.F.R. 5 2.730(c).

II. NECNP Should be Permitted An Opportunity To Present Argu-ments As to Why the Legal Standard Urged by Applicants and the Staff for Authorizina Low Power Operations Is Imoroner In accordance with the Licensing Board's November 27, 1987 Order, NECNP's Janaury 4, 1988 brief regarding low power opera-tions addressed the legal standard which should govern a determination regarding the appropriateness of low power opera-tions prior to the resolution of NECNP's three, unresolved con-tentions.1 However, the briefs of the Applicants and the NRC 1 NECNP Contention I.V, regarding in-service inspection of steam

-. _ _ _ __ 0001270311 880114 PDR ADOCK 05000443 G PDR

Staff argue that low power authorization is appropriate because NECNP's contentions are without merit, and that Applicants do, in fact, satisfy the General Design Criteria that are the subject of NECNP's as-yet unresolved contentions.2 In effect, they have attempted to change this stage of the proceedings from one in which the Board will consider the appropriateness of low power authorization in light of the remanded contentions (a legal show-ing), into one in which summary disposition will be decided on the merits of NECNP contentions (a factual showing). NECNP must be given an opportunity to explain why it is impermissible for the Board to authorize low power operations based on facts and allegations as to the merit, or lack of merit, of NECNP's remanded contentions, where discovery on these contentions is barely underway, much less completed.3 (continued) generator tubing; NECNP Contention IV, regarding the adequacy of Applicants' program to monitor and prevent biofouling by acquatic organisms and debris; and NECNP Contention I.B.2, regarding environmental qualification of the RG58 coaxial cable.

2 Both Applicants and the Staff substantially devote their briefs to the presentation of allegations of fact and opinion, drawing from expert affidavits appended to the briefs, which support the view that NECNP's two, remanded contentions do not l

raise significant safety issues, and that Applicants' do, in fact, satisfy the NRC safety requirements contained in the General Design Criteria that are the subject of NECNP's still-unresolved contentions.

3 NECNP has not yet received the documents requested from i Applicants in its first set of interrogatories, and has not l yet received any response to NECNP's Second Set of Inter-rogatories to Applicants on Contantion I.V, or to NECNP's Sec-l ond Set of Interrogatories to the Staff on Contention I.V and l

l

3 -

To authorize low power operations on the basis of summary disposition-type arguments, without permitting NECNP an opportunity to reply, would be manifestly unfair to NECNP. Fun-damental to administrative proceedings and notions of due process is the concept that an agency must give interested parties the opportunity for "the submission and consideration of . . . argu-ments . . . .

" 5 U.S.C. S 554 (c) (1) . The Board must grant interested parties "an opportunity to present argument . . . .

because "the cardinal rule, so far as fairness 19 concerned, is that each side must be heard." Houston Lichtina & Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), 10 NRC 521, 524 (1979).

Here, the notion that the Board should authorize low power operations based on a summary-disposition-type showing prior to the completion of discovery is completely unprecedented, and constitutes an attempt to change fundamantally the nature of this proceeding in a way NECNP could not have foreseen or con-templated. First, none of the Licensing and Appeal Board Orders in this proceeding can be construed as contemplating that the Board should entertain a summary disposition-type review of the merits of NECNP's remanded contentions at this stage of the pro-coeding. The Licensing Board's November 27, 1987 Order setting a (continued)

IV.

1

schedule to brief states only that it will review whether Hit is appropriate to renew at this time its authorization of low power," suggesting that it will entertain legal rather than fac-tual arguments.4 More importantly, under this Board's Order of December 4, 1987, discovery does not close until February 19, 1988. That order expressly states that only after the filing of briefs regarding the appropriateness of lower power athorization, will the Board determine whether motions for summary disposition are appropriate.5 Accordingly, fundamental notions of fairness and due process require that'NECNP be afforded the opportunity to present legal arguments as to why this standard is wholly improper.

A reply brief is necessary to enable NECNP to address ade-quately the lack of authority for authorizing low power opera-1 tions at this stage of the proceeding based on a determination that NECNP's remanded, and as-yet unresolved contentions lack merit. There is no authority in either Commission regulations or past Licensing decisions to permit authorization of low power operations to be made on the basis of fact and opinion as to the merits of the remanded contentions to which we have had no 4 Licensing Board Unpublished Order of November 27, 1987, slip

• 222, at 1.

5 Licensing Board Unpublished Order of December 4, 1987, slio 922, at 3.

opportunity to reply. Even 10 C.F.R. 5 50.57(c), which Applicants and the staff claim govern low power authorization in the instant case, has never been construed as permitting a sum-mary disposition on the merits of unresolved contentions, partic-ularly where discovery is not complete. Rather, it is well established that, at this stage of the proceeding, the ultimate merits of the contentions advanced are not being debated. Hous-ton Liahtina & Power Co. (Allens Creek Nuclear Generating Sta-tion, Unit 1), 10 NRC 521, 525 n. 16 (1979).

To the extent Applicants and the Staff present allegations of opinion that NECNP's remanded contentions, even if proven, are not relevant to low power authorization, NECNP requires a meaningful opportunity to controvert these opinions. However, such an opportunity will not be meaningful until the completion of the discovery period allotted by the Board. NECNP has not yet received the documents requested from Applicants in its first set of interrogatories, and has not yet received any response to NECNP's Second Set of Interrogatories to Applicants on Contention I.V, or to NECNP's Second Set of Interrogatories to the Staff on contention I.V and IV. These interrogatories, or any follow-up discovery, could very well lead to information that could rebut the allegations of Applicants and the Staff that NECNP's Conten-tions do not raise a safety issue during low power operations.

l For example, in arguing that NECNP Contention IV does not pose a safety threat at low power, the Staff asserts that, since water temperature is lower at low power, "Low power operations l

l l

l l

are likely to result in decreased biofouling." NRC Staff Brief at 15. However, NECNP is now conducting inquiries, through writ-ten interrogatories, into several reported instances of actual equipment breakages in critical safety systems, such as the Pri-mary Component Cooling System, to determine the extent that these incidents are attributable to corrosion caused by the accumula-tion of bacterial debris and sedimentation.6 These equipment breakages have occurred at zero power, and therefore at water temperature levels even less than low power temperatures. If these interrogatory responses and the results of any necessary ,

follow-up discovery, show that these equipment breakages were, indeed, attributable to some form of biofouling, NECNP will be able to demonstrate that NECNP Contention IV is relevant to low power operations.

With regard to NECNP Contention I.V, both Applicants and the NRC Staff's briefs argue principally that Applicants' program for in-service inspection of steam generator tubing is not a safety l

l l

l 6 See NECNP's Second Set of Interrogatories and Request for Pro-duction of Documents to the NRC Staff on NECNP Contentions j I.V. and IV, questions 32 through 34, filed on January 7, 1988, and NECNP's Second Set of Interrogatories and Request for Production of Documents to the Applicants on NECNP Conten-tions IV, questions 2 through 4, filed on December 23, 1987.

These interrogatory questions, as well as others, inquire into the role played by corrosion resulting from biofouling from microbiological organisms, in several reported incidents involving leaks and degradation of safety-related equipment.

i l

One such incident, observed in NRC-Inspecition Report No. 50-l 4 3/87-23, caused the "B" train PCCW heat exhanger to actually become disabled.

1 1

1

i issue because the particular circumstances causing the tube rup-tures at the Ginna and North Anna plants would not occur at Seabrook. However, NECNP Contention I.V is not restricted solely to the incidents at Ginna and North Anna. Rather, these tube ruptures are illustrative of a general problem that may well be applicable at Seabrook. Accordingly, NECNP has filed inter-rogatories on the specific factual and analytical bases of the requirements of Regulatory Guide 1.83 and the Technical Specifi-cations applicable to steam generator tube inspection so as to ascertain why these specific requirements have proven insuffi-cient to prevent steam generator tube problems in the past and therefore leave the public at grave risk of similar and/or addi-tional problems in the future.7 As yet, NECNP has received no response to these interrogatories. Because of all of the ques-tions raised by this outstanding discovery, Applicants cannot be allowed to operate until they are able to demonstrate that the 7 See NECNP's Second Set of Interrogatories and Request for Pro-duction of Documents to the NRC Staff on NECNP Contentions I.V. and IV. These interrogatories inquire into previously conducted testing which raises serious questions about the meaning of critical terms used in the Regulatory Guide. NECNP is also inquiring into the reliability of nondestructive exam-ination by eddy current testing and of the procedures used to determine whether primary to secondary side leakage exceeds the Technical Specification limit. In addition, NECNP is seeking information on the bases for many of the figures and percentages which determine the extent and frequency of inspection and the actions which are to be taken upon obtain-ing certain results from the inspection.

t

o .

probability of tube thinning, denting, or rupture causing an emergency core cooling system steam binding emergency or other serious event is acceptably low. Applicants or the Staff's simple statements of compliance with the Regulatory Guide and the applicable Technical Specifications are insufficient.

NECNP must be given an opportunity to reply to these allega-tions, and that reply must be at a meaningful point in this pro-ceeding. The Licensing Board, in recognition of the fact that NECNP's contentions present serious safety concerns, has given a lengthy period in which to conduct discovery prior to a hearing or summary disposition proceeding on these issues. This dis-covery period does not end until February 19, 1988. Accor-din.ly, NECNP could not, in any meaningful way, respond to the opinions proferred by the Staff that NECNP's contentions do not raise safety issues at low power, until the completion of the discovery process. Where safety is at issue, special care must be exercised to allow all parties a full opportunity to be heard.

Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Sta-l tion), 12 NRC 231, 232 n.1 (1980) (ASLB considered untimely filed response because reluctant to take position which might preclude litigation of safety or environmental issues without giving every party an opportunity to be heard).

Finally, 10 C.F.R. S 2.719(d) requires that, where an ini-i tial decision is stated to rest in whole or in part on fact or i

opinion of the NRC Staff, as this one is, "every party must be l afforded an opportunity to controvert the fact or opinion."

v.- .m -we ._oe ._

i

Because the NRC Staff's brief relies on affidavits submitted by experts whose testimony presents fact and opinion regarding the merits of NECNP's remanded contentions I.V and IV, and their relevance to low power operations, NECNP must be allowed an opportunity to controvert this.

III. NECNP Must Be Given An Opportunity To Controvert the Facts and Opinions Provided by Applicants and the Staff Recardina the Merits Of NECNP's Remanded Contentions.

Assuming, arcuendo, that it is permissible for Licensing Board to authorize low power operations based on Applicants' and the NRC Staff's allegations of fact and opinion that NECNP's con-tentions lack merit, NECNP must be given an opportunity to con-trovert the facts and opinion offered by Applicants and the Staff. It is well established that, before any decision that a contention should not be entertained, the proponent of the con-tention must be given some chance to be heard in response. Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-81-18, 14 NRC 71, 73 (1981). As the Appeal Board recognized in Houston Lichtina & Power Co. (Allens Creek Nuclear Generating l

l Station, Unit 1), 10 NRC 521'(1979), "Insofar as contentions are concerned, the Intervenors must be heard in response because they cannot be required to have anticipated in the contentions them-selves the possible argunents their opponents might raise as grounds for dismissing them." Idi at 525.

Moreover, if this proceeding is to be treated as a summary disposition proceeding, as Applicants and the Staff appear to be l arguing, then the rules governing summary disposition must be l

l l

l l - . _ _ . . . -

l l

l

I l applied. Those rules require that where a party to a proceeding moves for summary disposition, "(a]ny other party may serve an answer supporting or opposing the motion, with or without affidavits, within twenty (20] days after service of the motion."

10 C.F.R. 5 2.749(a). This provision for an opportunity to file an answer opposing the motion is designed to give the non-moving party an opportunity to be heard and to challenge the motion, and should be strictly enforced. See, e.a.. Western Fire Insurance co. v. Coceland, 786 F.2d 649, 652 (5th Cir. 1986) and cases cited therein.8 More importantly, under Rule 56(f) of the Federal Rules of Civil Procedure, a court may refuse to rule on summary judgment motions in order to allow a party to obtain facts necessary to controvert the statements of facts and opinion. Here, NECNP has not yet received the documents requested from Applicants in its first set of interrogatories, and has not yet received any response to NECNP's Second Set of Interrogatories to Applicants on Contention I.V, or to NECNP's Second Set of Interrogatories to the Staff on Contention I.V an'd IV. Until NECNP receives responses to their outstanding interrogatories, and has an 8 Licensing Boards must apply the rules and standards estab-lished by the courts for granting or denying a motion for sum-mary judgment under Rule 56 of the Federal Rules of Civil Pro-cedure in their consideration of motions for summary disposi-tion. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1& 2), ALAB-182, 7 AEC 210, 217 (1974).

~ . _ _ _

opportunity to conduct necessary follow-up discovery, it is impossible for NECNP to address the merits of its contentions in a summary disposition-type proceeding. Moreover, summary dis-position prior to the completion of discovery is particularly important where, as is the case, the crucial facts are largely within the knowldge or control of hte moving party. Subin v.

Goldsmith, 224 F.2d 753 (2nd Cir. 1955). Accordingly, NECNP may be entitled to request that the Board hold the summary disposi-tion proceeding in abeyance pending completion of discovery.

IV. Low Power Authorization is Inappropriate in Light of the Appeal Board's Remand of NECNP Contention I.2.B Regarding Environmental Oualification of RG58 Coaxial Cable.

On January 8 , 1988, the Appeal Board issued an order remanding NECNP Contention I.B.2, regarding environmental qualification of RG58 coaxial cable to the Licensing Board for additional proceedings.9 In its opinion, the Appeal Board expressly noted that "Should it prove necesary, the Licensing Board is to decide whether low-power operation of the Seabrook facility must await the completion of this remand." Slip 00, at 9 n.14.10 As yet, neither Applicants or the Staff have made any 9 ALAB-882.

10 At this point, the only conceivable circumstances under which it would be unnecessary to undertake a separate review of whether low power operation must await the completion of the remand on NECNP Contention I.2.B is if the Licensing Board determines that low power operation must await completion of

! discovery and resolution of NECNP Contentions I.V. and IV.

'hw e e u%a6-, mise - e m-

effort to demonstrate that this contention is not relevant to low power operations, or to rebut the arguments presented by NECNP in its January 4, 1988 brief regarding the serious safety concerns posed by the failure of Applicants to demonstrate adequately that the RG58 cable is environmentally qualified. Accordingly, no low power license may be issued unless and until Applicants satsify their burden of proof with regard to this outstanding, remanded contention, as well as the two, previously remanded contentions.

V. Conclusion In sum, NECNP is entitled to respond to Applicants' and the Staff's briefs, in order to present arguments as to why low power authorization may not be based on a determination regarding the merits of NECNP's remanded contentions. Further, NECNP requires an opportunity to reply to the Applicants' and the Staff's allegations of opinion and fact regarding the relevance of NECNP's remanded contentions at a meaningful point in the pro-ceeding, when the discovery process is cuapleted. Alterna-tively, NECNP is entitled to respond to Applicants' and the Staff's allegations of fact and opinion regarding the merits of NECNP's contentions, or to submit any affidavits as to why sum-mary disposition should be held in abeyance pending completion of 1

o .

j discovery. Finally, low power authorization is now premature, in light of the Appeal Board's ruling in ALAB-882.

Respectfully su si.tted, D

k&n $f Andrea Ferster /3s Anne Spielberg HARMON & WEISS 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500 CERTIFICATE OF SERVICE I certify that on January 14, 1988, copies of this pleading were served by first-class mail or as otherwise indicated on the parties to the attached service list.

/

/

Andrea Ferster t

{

I t

l I