ML20154H785

NRC Staff Response to New England Coalition on Nuclear Pollution Brief in Support of Appeal of Memorandum & Order Renewing Authorization to Operate at Low Power.* Aslab Should Deny Appeal & Affirm Order.W/Certificate of Svc

ML20154H785
Person / Time
Site:	Seabrook
Issue date:	05/17/1988
From:	Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#288-6356 OL-1, NUDOCS 8805260070
Download: ML20154H785 (29)

Text

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j$66 00CKETED USNRC UNITED ST ATES OF AMERIC A N U C L E A R R E G U L A T O R Y C O M MIS SIO N '88 MAY 18 P 4 :59

• i B E F O R E T H E A T O MI C S A F E T Y A tl D LI C E N SIN G A P 55'Alf.8 0"d R D- :5

- . ;c In the Matter of )

) Docket flos. 50-443 O L-01 PUBLIC SERVICE COMPANY OF ) 50-444 OL-01 N E W H A M P S H I R E , ,et al_. )

) (On-citc Emergency anc. Sciety Issues ) Planning (Seabrook Station, Units I and ?) )

NRC ST AFF RESPONSE TO NECNP BRIET IN SUPPORT OF APPEAL OF MEMORANDUM AND ORDER RENEWING AUTHORIZATION TO OPER ATE AT LOW POWER "u'

.s Gregory Alan Berry Counsel for N R C Staff May 17, 1988

!!O I!ock !!O 3

UNITED ST ATES OF AMERIC A NUCLEAR REGULATORY COMMISSION

-s BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

) Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW H AMPSHIRE, et al.

(On-site Emergency) and Safety Issues Planning (Seabrook Station, Units 1 and ?) )

t NRC STAFF RESPONSE TO NECNP BRIEf IN SUPPORT OF APPEAL OF MEMORANDUM AND ORDER R EN EWING A U TH O RIZ ATIO N T O OPE R AT E A T L 0nl P0k'E R i

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• Gregory Alan Berry Counsel for NRC Staff May 17, 1988 l

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s I \, y TABLE OF CONTENTS P_ age TABLE OF AUTHORITIES........................................ 11 INTRODUCTION............................................... 1 6

BACKGROUND................................................. 3 ARCUMENT................................................... 6 o-I. The Instant Appeal Is Mooted In Part By NECNP's Abandontent Of Its Contentions. . . . . . . . . . . . . . . . . . . . . . . . . 6 II. NECNP 's Leoa l Argument Is llithout Meri t. . . . . . . . . . . . . . . . 8 III. The Licensing Ecard's Order Is Supported By The Record.......................................... 9 A. Legal Standards Governing Low Power Operations.... 10 B. NECNP Contention I.V Did hot Raise A Safety Concern With Regard Tc Low Power Operations....... 12 C. NECNP Contention IV Did Not Raise A Safety Concern With Regard To Low Pcwer Operations....... 17 CONCLUSION.................................................. 21 i

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y TAB _LE OF AUTHORITIES Page

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Administrative Decisions Coninission:

Long Island Lighting Company (Shoreham huclear Power Station Unit 1),

CLI-84-21, 20 NRC 1437 (1984) . . . . . . . . . . . . . 8,11,12 Lcng Islana Lighcing Company (Shoreham Nuclear Power Station, Unit 1),

CLI-83-17, 17 NRC 1032 (1981). . . . . . . . . . . . . . . . 8 Pacific Gas and Electric Company (Diablo Canyon

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Nuclear Power Plant, Units 1 and 2), CLI-83-27, 18 NP.C 1146 (1983). ................... . 11 Public Service Company of New Hampshire (Seabrook S'tation, Units 1 and 2), CLI-87-13, 26 NRC 400 (1987). . . . . . . . . . . . . . . . . . . . . 3,9 Appeal Board:

Public Service Company of New Hampshire -

(Seabrook Station, Units 1 end 2), ALE -891, 27 NRC (April 25, 1988). . . . . . . . . . . . . . . . . 7 Public Service Compa_ny of New Hampshire TSeabrock Station, Units 1 and 2), ALAB-875, 26 NRC 251 (1987). . . . . . . . . . . . . . . . . . 1,4,5,8,9 Public Service Company of New Hampshire

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(Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC 430 (1987). . . . . . . . . . . . . . . . . . . . . 4,8 Li, censing Board:

Coninonwealth Edison Company (Braidwood Nuclear '

Power Station, Units 1 and 2), LBP-86-31, 24 NRC 451 (1986). . . . . . . . . . . . . . . . . . . 10,11,12 Duquesne Ytation, UnitLight 1), Conaany

.BP-76-3, (Beaver 3 NRC 44Valley (Power 1976). .. . . . . .. .8 Pecorandum and_ Order (May 12, 1988). . . . . . . . . . . . . 6

iii --

Med.orandum and Order (Denying NECNP Motion

.. For Reconsideration) (March 18, 1988). . . . . . . . . . . . 5-Memorandum and Order (Denying NECNP's Motion to Compel)

(February 17,'1'9357: . . . . . . . . . . . . . . . . . . . . 5 Memorandum Order (Briefing Schedule)

(November 27, 1987). . . . . . . . . . . . . . . . . . . . . 3 Pacific Gas and Electric Company '

(Diablo Canyon l'uclear Power Plant, Units 1 end 2), LBP-61-15, 13 NRC 226 (1981). . . . . . . . . . . . 11 Public Service Company of New Hampshire (Seabrook Station, Uniti 1 and 2), LBP-88-6, 27 NRC 245 (1988). . . . . . . . . . . . . . . . . . . . . passim Regulations 10 C.F.R. 6 2.758(a). . . . . . . . . . . . . . . . . . . . . 8 10 C.F.R. 9 50.5?(c). . . . . . . . . . . . . . . . . . . passim 10 C.F.R. Part 50, Appendix A, Criterion 32. . . . . . . . . 13 Miscellaneous 36 Fed. Reg. 8862 (May 14, 1982). . . . . . . . . . . . . . 10 NUREG/CR-3054, "Closeout of IE Bulletin 81-03:

Flow Blcckage of Cooling Water to Safety S Components by Corbicula sp. (Asiatic Clam)ystemand Mytilus sp. (Mussel)*~TJune 1984). . . . . . . . . . . . . . 18 NUREG-0986, Regulatory Guide 1.83, Rev. 1, "Inservice Inspection Of Pressurized Water Reactor Steam Generator Tubes". . . . . . . . . . . . . . . . 13,14,15,16 NUREG-0909, "NRC Report On The January 25, 1982 Steam Generator Tube Rupture At R.E. Ginna Luclear Pcwer Plant" (April 1982). . . . . . . . . . . . . . 14

f. Statement of Policy On Conduct Of Ei' censing Proceedings, CLI-81-8, 13 NRC 452 (1981). . . . . .

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h UNITE 9 STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

Docket Nos. 50-443 OL-01 FUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW HAMPSHIRE, et al. On-site Emergency Planning (Seabrook Station, Units 1 and 2) hRC ST AFF RESPONSE TO NECNP BRIEF IN SUPPORT OF APPEAL 0F HEMOR ANDUM AND ORDER RENEWING AUTHORIZATION TO OPERATE AT LOW POWER IN T R O D U C TIO N On April 7,1988, the New England Coalition On Nuclear Pollution (NECNP) filed an appeal of an order issued by the Licensing Board on February 17, 1988 1/ ni which the Board held that the contentions remanded by the Appeal Board for further litigation in ALAB-875 2/ were not relevant to low pcwer operations and thus did not have to be resolved befcre the Board could reauthorize low power operations. Public Service Ccopany of New Hampshire, (Seabrook Station Units 1 and 2)

LBP-88-6. 27 NRC 245, 255. 3/ NECNP appeals this order, relying l

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Public Service Company of New Hampshire (Seabrook Station, Units 1 ind 2), LBP-88-6, 27 NRC 2'45 (1988) (hereinafter "February 17 Order" or LPP-80-6").

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• Public Service Company of New Hampshire (Seabrock Station, Units 1 2/

and 2), ALAB-873, 26 NRC 251 (19877'.

3/ The Board did not authorize the Director of Nuclear Reactor ,

Regulation to make the appropriate findings and issue a low pcwcr l

license to the Seabrook Station because it was precluded from doing (FOOTNOTECONTINUEDONNEXTPAGE) l

2-principally on the argument that the Commission and its adjudicatory

, boards lack legal authority to authorize low power operations prior to the resolution of all issues material to full power licensing. NECNP Brief In Support Of Appeal Of Memorandum And Order Penewing Authorization To Operate At Low Power (hereinafter "NECNP Brief"), passim. As explained below, this appeal has been mooted in part by NECNP's withdrawal of the subject contention. Further, there is no merit to the arguments advanced by NECNP. A Commission regulation,10 C.F.R. 5 50.57(c), allows the issuance of a low power license where pending contentions are not "relevant to the activity to be authorized." Neither of the remanded contentions (NECNP Contention I.V. relating to inservice inspection of steam generator tubes; and NECNP Contention I.V. concerning accumulation of aquatic organisms and debris in cooling system) is relevant to the activity (operation at 5% of rated power) to be authorized. Consequently, the Board correctly ruled that neither of the remanded contentions posed e bar to the reauthorization of low power operations. Accordingly, NECNP's appeal should be denied and the February 17, 1988 Order should be af fi rmed.

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. (F^0TNOTE CONTINUED FR0ti PkEVI0l'S PAGE) so by the Appeal Board's decision in Public Service of Company of New Harpshire (Seabrook StatTon, Units 1 and 2), ALAB-883, 27 iRC 43 (I988). See LDP-80-6, 27 NRC at 255.

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BACKGROUND s On November 25, 1987, the Commission issued CLI-87-13 N ni which it lifted its January 9,1987 order staying the Director of the Office of Nuclear Reactor Regulation from issuing a low-power license for the Seabrook facility. In its order, the Comission took note of the two contentions that had been remanded for further litigation by the Appeal Board in ALAB-875 and directed the Licensing Board to "expeditiously determine whether, considerino the issues that it is hearing on remand, it is appropriate to renew at this time its authorization of low power or whether low power operations must await further decisions." CLI-87-13, 26 NRC at 405. On November 27, 1987, the Licensing Board issued an order directing the parties to file briefs addressing this issue. Memorandum Order (Brie'ing Schedule) at 1-2 (November 27,1967).

In its brief, the Staff explained why neither of the remanded cor.tentions constituted a bar to the reauthorization of low power (5%

rated level of power) operations. See NRC Staff Response To Licensing Board Order Of November 27, 1987, passim (January 12,1988).

Specifically, the Staff presented the affidavits of experts in the issues raised by the remanded contentions which demonstrated that there was reasonable assurance that the dangers alleged in the remanded contentions would not occur during low power operations. Accordingly, the Staff contended that neither of the remanded contentions was relevant to the low power activity to be reauthori:ed. The Staff explained that under 10

- C.F.R. 9 50.57(c), a license to conduct activities short of full power 4/

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Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-87-13, 26 KRC 400 (1957).

operations may be authorized prior to the completion of the full power

' licensing proceeding if none of an intervenor's contentions is "relevant to the activity to be authorized." M.at2-7. In their brief, Applicants took a similar approach. See Applicants' Brief In Support Of Low Power Operations, passim (January 4, 1988).

NECNP, on the other hand, did not oppose the reauthorization of low power operations on the ground that the remanded contentions were "relevant to the activity to be authorized." NEdNPcouldhavechallenged the reauthorization of low power operations on this ground. See 10 C.F.R.

$ 50.57(c). Instead, NECNP's brief was devoted solely to the argurrent that the Commission and its adjudicatory boards lack the legal authority to authorize the issuance of any type of license prior to the completion of the full power licensing proceeding. See NECNP Brief In Opposition To Renewal Of Authorization To Operate At Low Power, passim (January 4, 1988). NECNP placed relied on this argment even though this claim had been rejected by the Appeal Board earlier. See Public Service Company of New Hqmpshire (Seabrook Station, Units 1 and 2), supra ALAB-875, 25 NRC at 256; I_d. , ALAB-865, 25 NRC 430, 439 (1987).

On February 17, 1988, the Board issued an order in which it held that neither NECNP Contention I.V or NECNP Contention IV was relevant to low power operations "inasmuch as the safety concerns raised therein would not adversely impact upon the public health and safety if Seabrook, Unit 1, were to be authorized to operate only up to 5% of rated power." LBP-88-6, 27 NRC at 255. On April 7, 1988, NECNP filed the instant appeal.

Significant developments have occurred subsequent to the filing of the instant appeal. On April 22, 1988, after having failed in its attempt

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to broaden the scope of remanded NECNP Contention ~IV 5/,NECNPnotified

- the Board in writing that "NECNP does not intend to litigate NECNP Contention I.V, on the adequacy of Applicants' program for in-service inspection of steam generator tubing, or NECNP Contention IV, to the extent that Contention IV relates to the adequacy of Applicants' program for monitforing to detect blockage of coolant flow resulting from the build-up of macro-biological organisms." Letter from Andrea Ferster, Esq.

to Licensing Poard at 1 (April 22,1988). 5/ On April 28, 1988, the Staff responded to NECNP's letter and advised the Board that "[i]n view of NECNP's decision not to prosecute its contentions, the Board should find that Contentions I.V and IV bave been abandoned by NECNP and issue and order dismissing both of the contentions." Letter from Gregory Alan Berry, Esq. to Licensing Board at 1 (April 28, 1988). On May 12,1988,

-5/ See Memorandum and Order (Denying NECNP's Motion to Compel)

TFebruary 17, f988); Memorandum and Order (Denying NECNP Motion for Reconsideration) (March 18, 1966). In these orders, the Board rejected NECNP's attempt to expand NECNP Contention IV to encompass the subject of microbiological 1y induced corrosion. The Board ruled that NECNP Contention IV did not embrace the question of corrosion of ;

cooling systems, but rather was limited to the question of blockage of such systems due to the accumulation of aquatic organisms and debris. No distinction was made in the Board's orders between micro-organisms and macro-organisms. February 17, 1988 Memorandum at 5; March 18, 1988 Memorandum at 2. The Board's construction of Contention IV is consistent with the understanding expressed by the

. Appeal Board in ALAB-875. See ALAB-875, 26 NRC at 262, ?75 (NECNP Contention IV is "addressed to the accumulation of aquatic or and other foreign matter in cooling system") (emphasis added)ganisms 6/ Although, NECNP also expressed its intention to appeal "at the appropriate time" the Board's construction of NECNP Contention IV to exclude micro- and macro-biologically induced corrosion, ~id at 2,

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that issue is not presented by the instant appeal.

e--- w =, ,

L the Board issued an order dismissing NECNP Contentions I.Y IV. See Memorandum and Order at 3 (May 12, 1988).

On April 29, 1988, Applicants filed rotions for sumary disposition of NECNP's Contentions I.V and IV. On May 6, 1988 hECNP notified the Board that it did not oppose the granting of Applicants' motions but urged the Board to make it clear that summary disposition of NECNP Contention IV was limited to the issue of blockage of cooling systems and did not include the issue of microbiologically induced cdrrosion. See NECNP Response To Applicant's Motion For Sumary Disposition On NECNP Contention IV at 4 (May 6, 1988). In its May 12 order dismissing NECNP's contentions, the Board denied t;ECNP's request on grounds of mootness. The Board stated it would not issue a decition on Applicants' sumary disposition motions because in view of NECNP's abandonrrent of its contentions, "it would be [a] useless exercise to prepare and to issue a decision [.)" .Mey 12 Order at 3.

ARGUMENT l

I. THE INSTANT APPEAL IS MOOTED IN PART BY NECNP'S ABANDONMENT OF ITS CONTENTIONS __

NECHP'S appeal rests upon two major arguments. First, NECNP argues that, as a matter of law, the Commission and its adjudicatory boards lack the authority to authorize low power operations prior to the resolution of i ,-

all issues "relevant to full power operation." See NECNP Brief at 4-23.

In the alterr.ative, NECNP maintains that all of its remanded contentions rust be resolved before low power operations may be reauthorized. Id. at I

n _

23-25. In the present posture of this proceeding, NECNP's latter argument

- has been mooted. E As notad above, on April 22, 1988, NECNP notified the Licensing Board and the parties that it no longer intended to litigate remanded NECNP Contentions I.V and IV and would not oppose any motions for summary disposition of these contentions filed by Applicants or the Staff. See Letter from Andrea Ferster, Esq. to Licensing Board, supra, at 1. N In such circumstances, it is appropriate to dismiss, as the Board has, NECNP Contention I.V and IV. See Statement of Policy On Conduct Of Licensing Pr,oceedings, CLI-81-8, 13 NRC 452, 454 (1981). Thus, to the extent that the instant cppeal rests upon the argument that low power operations may not be reauthorized prior to the resolution of NECNP Contentions I.V and lY, the appeal is moot since those contentions no longer present a live controversy.

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The Board's February 17 Order addressed the issue whether the contentions that had been renianded for further proceedings as of that time precluded reauthorization of low power operations. Subsequent to the issuance of that order, the Appeal Board remanded another of NECNP's contentions for further proceedings. See Public Service Com?any of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-891, 27 1RC (Apr'iT25,1988)(NECNPContentionI.B.2,relatingto environmental cualification of RG-58 coaxial cable). Thus, the February 17 Order did not embrace the question whether the

+ uncertainties surrounding the environnental cualification of RG-58 coaxial cable must be resolved before low power operation could be reauthorized.

y As noted earlier, NECNP intends to appeal the Licensing Board's construction of NECNP Contention IV "at the appropriate time." The correctness of the Board's construction, however, is not presented on this appeal. See n.5 ar.d n.6, ante.

II. NECNP_'s LEGAL ARGUMENT IS WITHOUT MERIT

.. NECNP's other legal argument -- that the Comission and its adjudicatory boards lack authority to authorize low power operations prior

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to the resolution of all issues material to full power operation is wholly lacking in trerit and should be rejected sumarily.

Both the Appeal Board and the Comission already have ruled tbt authorization to comence low power operations need not as a mr.cter of law await the completion of a full power operating license pr',ceeding. See e.g. Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NPC 1437 (1984); Ld., CLI-83-17, 17 NRC 1032 (1983);

Public Service, Ccapany of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-875,26NRC251(1987); Ld.,ALAB-865,25NRC430,439(1987). These determinations are dispositive and in view of these precedents, NECNP's argument should be rejected.

As section 50.57(c) of the Comission's regulations explicitly provides, "[a]n applicant may, in a case where a hearing is held in

! connection with [an operating license] proceeding . . ,, make a motion in i writirig . . . for an operating license autherizing low power testing . . .

and further operations shcrt of full power." 10 C.F.R. 9 50.57(c); see Shoreham, supra,CLI-84-21,21NRC1437.El Low power operation, of course, is an operation "short of full power." The validity of section 50.57(c) is not subject to attack in this forum. 10 C.F.R. I 2.758(a);

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see ALAB-875, supra, 26 NRC at 256 (adjudicatory boards "lack the 9/ NECNP's suogestion (NECNP Brief at 5, n.7) that this interpretation of section'50.57(c) is of recent virttge is erroneous.

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See e.g.

1 Duquesne Light Com yan (Reaver Valley Power Station, Unit 1),

LBP-76-3, 3 NRC 4'4, 4 (1976).

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authority to strike down a Comission regulation"). NECNP's argument that the Licensing Board lacked legal authority to reauthorize low power operations prior to the resolution of NECNP Contentions I.V and IV therefore must be rejected.

III. TPE LICENSING BOARD'S ,0RDER IS SilPPORTED BY THE RECORD In view of the foregoing, the instant appeal may and should be denied without deciding whether the record supports the Board's finding that neither of rerarded NECNP Contentions I.V or IV is relevant to the low power or erations. Moreover, NECNP does not challenge on this appeal the merits of the Board's determination that neither NECNP Contentions I.V nor IV is relevant to issuance of a low pese license. However, in the event 1 the Appeal Beard determines that it is necessary to address the merits of the Board's decision, the Staif here shows that the Board's finding on relevance was correct. As discussed below, the public health and safety t is not, threatened during low power operations by the dangers raised by NECNP Contenticris I.V and IV. Coissequently, neither of the contentions is relevant to the activity to be authoriiied, the sole ground upon ,,hich a i request to conduct cperations short of full power in advance of the completion of a f ull pcwer operating license proceeding may be opposed.

See 10 C.F.P.. ! 50.57(c).

On February 17, 1988, pursuant to the directions of the Appeal Boa'- and :he Commission EI "to expeditiously determine whether low O

operath.* -Cld be reauthorized prior to the completion of the 16 E ..3, 26 NRC at 276.

M/ CL:-cr

'pra, 26 NRC at 40$.

remand proceeding on NECNP Contentions I.V and IV, the Licensing Board

., issued an o. der ruling that "the two remanded contentions are not relevant to' low power operations inasmuch as the safety cuncerns raised therein would not adversely impact upon the public health and safety if Seabrook, Unit 1, were to be authorized to operate only up to 5% of rated power."

LBP-88-6, 27 NRC at 255. This conclusion is supported by substantial, reliable, and uncontroverted evidence and should be affirmed by the Appeal Board.

A. Legal Standards Governing Lou Power Operations, Section 50.57(c) of the Commission's regulations permits an applicant in a contested operating license proceeding to move the licensing board to authorize the Director of the Office of huclear Reactor Regulation (NRR)  :

to issue a license "permitting activities short of full power operation, notwithstanding the pendency of safety contentions before the licensing Loard." Corronwealth Edison Company (Braidwood Nucleat Power Station, Units 1 and 2), LBP-86-31, 24 NRC 451, 453-Sa (1986). Section 50.57(c) was promulgated "to provide explicitly for early consideration of facility 4 testing in the event of a centested hearing on the issuance of a license for full pcwer operation." M. at 454, citing 36 Fed. Reg. 8862 (May 14, 1982). Thus, as noted by the licensing board in Braidwood. the regulation affords relief to an applicaat when the pendency of hearings i

before a licensing board threatens to delay the applicant's fuel loading and testing schedule." M.

Section 50.57(c) providos that if an applicant's request for authorization to conduct acthities short of full power operation is not opposed, the licensing board shal; issue an order aut'ioriiing the Director i

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of NRR, after making the findings required by section 50.57(a), to grant the license for the requested operation. M. The sole ground for opposing a reyucst made pursuant to section 50.57(c) is that the

'l 50.57(a) findings cannot be made for the requested authority because [a party's contention] is relevant to those operations and must therefore be resolved prior to the issuance of the i 50.57(c) license." Ld.;seealso Long Island Ligting Company (Shoreham Nuclear Power Station, Unit 1).  ;

CLI-84-21,20NRC1437,1439(1584)(inpassinguponasection50.57(c) motion, the regulation involved "must be examined to determine its i application and effect for fuel loading or some phase of low power testing"). In such cases, the licensing board must determine whether the  !

contention is in fact relevant to the requested operation, ard if it finds that the contention is relevant, section 50.57 provides that the board itself make those section 50.57(a) findings "as to which there is a  ;

t cor.troversy" because of the pendency of a relevant contention. 10 C.F.R.

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950.57(ch ,

On the other hand, if the licensing board finds that the admitted contentions are not relevant to the requested operation, and therefore need not be resolved before the requisite section 50.57(a) findings can be -

made, the board does not make any section 50.57(a) findings, but authorizes the Director of NRR to do so. Ld. , citing 10 C.F.R.

i 50.57(c), Facific Gas and Elec,tric Company (Diablo Canyon Nuclear Power l Plant, Units 1 and 2), LBP-81-15, 13 NRC 226, 233 (1981), and Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Unit.s 1 and 2),CLI-83-27,18NRC1146,1149-50(1983).

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Since NECNP opposee the reauthorization of low power operations the

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., Board was required to determine et the threshold whether either NECNP's Contentions I.V or IV was "relevant to the requested operation [.]"

Braidwood, supra, 24 NRC at 434 It should be noted that the test of "relevance" is not whether the contention relates to the conduct of the proposed activitiy, but rather whether it is poses an issue relating to the safe conduct of the proposed activity. Braidwood, supra, 24 NRC at 455;seeSJ1oreham, supra,20NRCat1439. As the board explained in Braidwood: ,

[T]he test for relevancy, under 9 50.57(c) as is general, is whether, if the matters were heard, they could result in a finding adverse to the other party -- in tnis case under 9 50.57(a). Since only matters inimical to the public health or safety can be decided adversely to Applicant under i 50.57(a), and intervenors have made no showing that their admitted contention raitos a safety matter with regard to fuel loading and precritical testing [the activities sought to be authorized], they have failed to establish that the contention is relevant to the requested license.

24 NRC at 456. Stated another way: unless the public health and safety is threatened by the danger posited by the admitted contentions in the event r the activity sought to be authorized comences, the contentions simply are l not relevant. See Shoreham, supra, 20 NRC at 1439. The Board correctly concluded that remanded NECNP contentions I.Y and IV did not raise a safety matter with regard to low power operations and thus were not relevant to the activity to be authori7ed, j B. NEC NP Contention I.Y Did Not Rsise A Safety Concern

,, With Reca,rd To Low hver Operations l

l flEC NP Contention I.Y alleges that:

l The Applicants have not demonstrated that they have met GDC 14, 15, 31, and 32 insofar and to the extent that those G D C require a program of in-service inspection of steam generator tubes.

l

The gravamen of this contention is that in the absence of an adequate inservice inspection program, cracking or leaking steam generator tubes may go undetected and uncorrected which might result in a tube rupture causing a steam generator safety valve (s) to open and risking the release of radioactive gases. As explained below, the record supported the Board's conclusion that there was reasonable assurance that the dangers presented by NEChP's scenario would not occur during low power operations.

General Design Criterion 32 requires that:

Com ponents which are part of the reactor coolant boundary [RCPB) shall be designed to permit (1) pressure periodic inspection and testing of important areas and features to assess their structural and leaktight integrity, and (2) an appropriate material surveillance program for the reactor pressure vessel.

10 C.F.R. Part 50, Appendix A, Criterion 32. Applicants' program for inservice inspection of steam generator tubes satisfies these requirerrents. See Affidavit of Herbert F. Conrad at A4-A5, attached to hRC Staff Response To Licensing Board Order of November 27,1987(January 12,1988). In this regard and as docurrented in NUREG-0986, the Safety

Evaluation Report for the Seabrook Station, the pressure retaining parts of the stecni generators have been designed "to meet the ASMF Code requirenents for ASME Code Class 1 components." NUREG-0986 at 5.4.2.2.2.

In addition, Applicants' inservice irspection pregram provides for the "inservice inspection of Class 1 and P corrponents, including individual steam generator tubes." Conrad Affidavit at A4-A5. In addition.

/pplicants have ' committed to following the reconnendations of Regulatory Guide 1.83, Rev.1. "Inservice Inspection Of Pressurized k'ater Reactor Steam Generator Tubes," as well as the standard technical specifications for Vest 1nghouse Pre surized kater Reactors set forth in NUREG-0452. Id.. i l

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Finally, Applicants have cerrnitted to cenduct the required inservice t i

., inspections of steam generator tubes in accordance with the requirements set forth ire section XI of the ASME Code. NUREG-0986, 6 5.4.2.2."; Conrad Affidavit at A4. As Mr. Conrad's affidavit indicated, the Staff has determined that collectively the measures described above "constitute an acceptable basis for meeting, in part, the eguirements of GDC 32." Ld .  !

The proffered basis for NECNP Contention I.V is that a steam generator tube rupture occurred at the Ginna facility netwithstanding that licensee's adherence to Regulatory Guide 1.83. This circumstance did not compel the conclusion that NECNP Contention I.V rrust be resolved before the Board reauthorized low power operations at the Seabrook Station.

The tube rupture at the Ginna facility was caused by the presence of asforeign object inadvertently left in a steam generator tube. Conrad

• Affidevit at A6; NUREG-0909, "FRC Report On The January 25,198? Steam

Generotor Tube Rupture At R.E. Ginna Nuclear Power Plant" (April 1982).

This occurrence is unlikely to repeat itself at the Seabrook Station. As i both Mr. Conrad and Gregory Kann, the Program Support Panager at the  ;

Seabrook Station, cbserved, in April 19Pi, the Seabrook Station's secondary side steam generator internal areas were inspected and all debris or foreign objects observed were removed. Affidavit of Gregory Kann at i ll, attached to Applicants Brief In Support of Low Power Opera tions (January 4,1988). Sec Conrad Affidavit at A6. In addition.

rigorous controls were adopted to ensure that any clothing worn or ,

.. material used during this inspection was not left behtiid inadvertenly.

id. Finally Applicants have in place a system which permits them during plant operation to monitor and detect any "loose parts" which might pose a .

I i  ;

{

threat to the integrity of the steam generatur tubes. M.; Kann Affidavit at i 12; tee Seabrook Final Safety Assessrrent Report (FSAR), f 4.4.6.4 In'the opinion of the Staff's expert in this area, Mr. Conrad, the measures described above "provide reasonable assurance that a rupture caused by a loose part, similar to that experienced at Ginna, will not occur at Seabrook." Conrad Affidavit at A6.

Mr. Conrad also explained why there was even less likelihood of a Ginna type steam generator tube rupture occurring at 5 percent power than there is at 100 percent or full power. Conrad Affidavit at A9. "The rate of fluid flow at 5 percent power would grettly reduce the driving force that could be caused by such a postulated loose part[.)" J_d . "Fluid flew" in this context rneans the motion of the water circulating within the stearn generator. The lower the power level, the slower the flow of fluid and hence the weaker the force of the postulated loose part.

! Consequently, in the unlikely event that a part became loose or a foreign cbject was left in a steam generator, it extremely unlikely that such occurrence would result in a rupture similer to that experienced at the l

Ginna facility. Id.

d In July 1987, the North Anna facility experienced a steam generator tube rupture. Conrad Affidavit at A7. This rupture was caused by "fluid flew induced vibration fatigue." J_d . The Seabrook Station, however, is not susceptible to this type e' failure. M . This is because, unlike the horth Anna facility, the steam generator tube support plates used at the Seabrook S+.ation are not made of carbcn steel. M.;NUREG-0986, 5 5.4.2.1. Carbon steel support pletes contain drilled holes, which are L

[

susceptible to the corrosion process known as "denting." El In contrast,

+

, the tube support plates used at the Seabrook Station are made of highly corrosion-resistant ferritic stainless steel which is not vulnerable to rust. Conrad Affidavit at A7. Additionally, the Seabrook tube suppor t plates utilize "breached," rather than drilled, holes. I_d.; NUREG-0986,

! 5.4.2.1. "The broached-hole design promotes high-velocity flow along the tube, sweeping impurities away from support plate locations." J_d .

The invulnerability to rust and the use of broethed holes mcens that there is no reasonable danger that the Seabrook steam generator tubes will experience the "denting" phenomena, which led to the North Anna steem generator tube rupture. Conrad Affidavit at A7.

P.oreover, as with a Ginr.a type of rupture, there is even less likelihood that a North Anna type of rupture will occur at the Seabrook Station during low power operations. This is because the reduced rate of fluid flow at 6 percent pcwer is not sufficient to cause the "flow induced vibrations which caused the North Anna tube rupture." Cor. rad Affidtvit at A9.

Finally, it should be noted that the Seabrook Technical Specificetions provide that the first inservice inspection of the steam generators be performed six menths after full power operations concence or within 24 months of initial criticality, whichever occurs first. Conrad

-12/ "Dentino" refers to the crowth of the iror oxide corrosion product in the annalus between the tube and the drilled hole which can result

- from deformatiers in the tube caused by gripping or sqeezing the tube. See NRC Staff Response To New England Coalition On Nuclear PollutiBF s First Set Of Interrogatories And Request For The Production Of Docunents To The NRC Staff On NECNP Contentions 1 V And IV et 7 (December 7, 1987).

Affidavit at A8. !ow pcwer operations would not alter this requirement.

- Id. Nor would low power operations make inservice steam generator tube inspections more difficult to perfonn or augment. Id. In fact, as Mr.

Conrad pointed out, the requirement that "the full length of each tube in each of the four steam generators be eddy current inspected from the point of entry on the hot leg side completely around the U-bend to the top support of the cold leg" provides "additional assurance of steam generater tube integrity for the initial period of operation until the first inserviceinspection[]" M. None of these facts was controverted by NECNP. Since the record established that no safety issue was presented by NECNP Contention I.V with respect to low power operations, the Licensing Deerd's conclusion was correct and should be affirmed.

C. NECNP Contention IV Did Not Raise A Safety Concern With Regard To low Power Operations _ , .

NECNP Contention IV alleges that:

The A pplica rt must establish a surveillance and maintenance program for the prevention of the accumulation of mollusks, other aquatic organisms, and debris in cooling systenc in order to satisfy the requirements of G D C 4, 30, 3?, 35, 36, 39, and 39, w hich require the maintenance and inspection of reactor i

coolin g systems. The desig n , construction , and proposed operation of Seabrook fail to satisfy thes? requirements.

NECNP argued before the Licensing Board that this contention "strikes to the very core of plant safety." According to NECNP, in the absence of an adequate surveillance and monitoring program, aquatic organisms and l , debris might accumulate in the Seabrook cooling systems "which will impair these safety systems, or cause them to fail altogether." M.at30.

NECNP's assertion did not demonstrate that this contention raised a safety issue with regard to low power operations. As explained below, Applicants in fact have an adequate surveillance and monitoring program to prevent i

i

f 18 -

the accumulation of aquatic organisms and debris in the Seabrook cooling systems. Moreover, it extremely unlikely that the danger posited by NECNP wiilariseduringlowpoweroperations.

An effective program to prevent the accumulation of aquatic organisms and debris (i.e., "biofouling") consists of three elements: first, a properly designed cooling and service water system; second, a water treatment program; and third, proper surveillance and monitoring. See r Affidavit of Dr. Michael T. Masnik at A4, attachid to NRC Staff Response To Licensing Board Order of November 27, 1987 (January 11,1988).

Applicants' program includes each of these elements and, according to the Staff's expert, Dr. Masnik, is "sufficient to control biolfouling of the

[ service and cooling water] systems and to detect any significant degradation of the systems due to biofouling." I_d. at A5. E l With regard to the design element, the Seabrook Statiori has been designed to include a "midwiter intake structure," which among other things greatly reduces the intake of debris and macro-organisms, including mollusks. Id. This intake structure is coated with an anti-fouling agent l which discourages the attachment of aquatic organisnis. I_d . Also installed upstream froni the individual roon and component heat exchangers are screening devices to prevent flow blockage. Id. These devices are capable of screening out objects as small as 3/8 inches square in size. ,

i 13/ Additionally, in NUREG/CR-3054, "Closecut of IE Bulletin 81-03: Flow

System Components by Corbicula Blockage sp. (Asiatic ofClam) Cooling Water and to Safety Mrtilus sp. (Mussel)" (June 1984), the Staff determined that Applicants"Ead an "acceptable prograro to confirm t

, adequate flow rates in the safety-related systems." Id. at B-9. An inadequate flow rate is the danger presented by biofouTing. See Id.

l at 1.

L

_r, ,, - , -,,,c,,-,, .

Affidavit of Norman Wagner at A7, attached To NPC Staff Response To

. Licensing Board Order of November 27,1987(January 12,1988).

The second element of an effective biofouling prevention plan --

water treatment -- also has been incorporated into Applicants' biofouling control program. Masnik Affidavit at AS. In his affidavit, Dr. Masnik explained that, typically, a water treatment program consists of chlorinating the cooling water with a solution of sodium hypochlorite injected into the system as far upstream as possible in a concentration sufficient to destroy aquatic organistns downstream from the point of injection. M.atA4. Applicants' biofouling control program includes this technique. M.atA5;WagnerAfficcvitatA6. Another water treatrr.ent technique errployed in the nuclear industry is thermal backflushing. Masnik Affidavit at A4 This technique consists of reversing the flow in the cooling systern and elevating the temperature of the water. M. Acccrding to Dr. Pasnik, elevated temperatures will result in virtually 100 percent mortality to all macro arid micro fouling crganisms. M. The Seabrook Station is designed to Lilow Applicants to employ this technique, ld. at A5; Wagner Affidavit at A6.

t l The third element of an adequate biofouling control plcn is proper surveillance. Masnik Affidavit at A4. An effective surveillance program i ideally includes backpressure reasurements, heat rejection tests, and pump l head testing. M. Additionally, periodic visual inspectioris of the I*

I systems conponents including the intake structure, travelling screens,

- intake inlet ar.d outlet water boxes, inlet and outlet heat exchanger water I

boxes should be conducted. Id. Finally, the biofouling control system

should be monitored to ensure that reduced flew or blockage does not

\ occur. Io. Applicants' surveillance program is described in the

. affidavit of Winthrope B. Leland, who is the Chemistry and Health Physics Manager at the Seabrook Station. See Affidavit of Winthrope B. Leland at 5 0, attached to Applicants Brief In Support Of Low Power (January 4, 1988). The Staff has reviewed Applicants' surveillance program and found it acceptable. Masnik Affidavit at A5; see Wagner Affidavit at A7.

The record also supported the Board's conclusion that it is unlikely that nollusks, other aquatic organisms, or debris in an amount sufficient to raise a safety issue will accumulate during low power operations. Low power operations are likely to result in decreased biofouling. This is t'ecause the rate of biofouling caused by aquatic organisms is dependent on several factors, including environmental conditions such "salinity, water temperature, light, availability of food, and frequency and degree of submergence [.]" Masnik Affidavit at A6. According to Dr. Masnik, with the exception of water temperature, operation at 5 percent power "would not have a sigrificant ef fect" on any of these environrrental conditions at the Seabrook Station. I d, . However, since the growth rate of aquatic organisnis is "highly dependent" on water temperature, "operation of the facility at 5 percent of rated power would result in much slower growth rates in trost of the [cnoling and service water) systems than at 100 percentpower[.]" Id. Thus, there is reasonable assurance that the danger posited by hECNP Contention IV will not occur during low pcher operations. NECNP, although maintaining it wished to introduce evidence

- of biologically induced corrosion, offered no evidnce to show that the accumulation of mollusks, other equatic organisms, and debris in the cooling systerns could affect the safe operation of the Seabrook Station

during low power operation. Therefore, the Licensing Board's conclusfoa that NECNP Contention IV was not relevent to low power operations is supported by the record and tharefore should be affirmed.

• CONCLUSION tiECNP's appeal presents two issues: First, whether the reauthorization of low power operations is precluded pending the resolution of NECNP Contention I.V and IV, and second, whether the Ccariission and its adjudicatory boards lack legal"authority to authorize low power operations prior to the resolution of all issues material to full power licensing. The first issue has been mooted by NECNP's decision to abandon NECNP Contentions I.V and IV and the Board's subsequent order disn;issing those Contentions from the proceeding. The second issue is i without merit since it is well settled that activities short of full power may be authorized where it is shown that none of the safety contentions pending are relevant to the activity to be authorized. Accordingly, the Appeal Board should deny NECNP's appeal and affirm the February 17, 1988 crder.

R octfully subtritted, P O r 6

Gregory lan Wrry

! Counsel ar h t Staff Dated at Rockville, Marylard this 17th day of May 1988 O

t 1

o 00acito uwe UNITED ST ATES OF AMERIC A N U CLE A R RE G UL A T O R Y C OMMISSIO N '88 MY 18 P4 59

, B E F O R E T H E A T O MIC S A F E T Y A N D L IC E N SI N G A P[ dab

= BRtd M In the Matter of Docket flos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 N E W H A M P S HIR E , g al. On-site Emergency Planning and Safety Issues (Seabrook Station, Units 1 and 2) )

CERTIFIC ATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO NECNP BRIEF IN SUPPORT OF APPEAL OF MEMORANDUM AND ORDER RENEWING A U T H O RIZ A TIO N TO OPERATE AT LOW POWER" in the above-captioned proceeding have been served on the following by deposit in the U nitc d States mail, first class or, as indicated by an asteris k ,

by deposit in the N uclear Regulatory Commission's internal mail system, this 17th day of May 1988.

Sheldon J. Wolfe, Esq., Chairman

• Atomic Safety and Licensing Administrative Judge Board

• Atorife Safety end Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington. D C 20E55 Dr. Jerry Harbour

• Docketing and Service Section*

Administrative Judge Office of the Secretary Atomic Safety and Licensing Bcard U.S. Nuclear Regulatory Commission U.S. Nuclear ReEulatory Commission Washington, D C 20555 l Washington, D C 20555 Dr. Emreth A. Luebke Thomas G. Dig na n , Jr., Esq.

Administrative Judge Robert K. Gad, III, Esq.

4515 Willt rd A ve nue Ropes & Gray Chevy Chase, Maryland E0815 225 Franklin Street i

Bcston, M A 02110 Atomic Safety and Licensing H . J . Fly n n , E s q .

% Appeal Panel

• Assistant General Counsel U.S. Nuclear Regulatory Commission Federal Emergency Management Agency Washington, DC 20555 500 C Street, SW Washington, D C 20472

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Philip Ahren, Esq. Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street State House Station Portsmouth, NH 03801 Augusta, ME 04333

, Mr. Angie rtachiros Chairman Carol S. Sneider, Esq. Board of Selectmen Assistant Attorney General 25 High Road Office of the Attorney General Newbury, M A 09150 One Ashburton Place,19th Floor Boston, M A 02108 George Dana Bisbee, Esq. Allen Lampert Assistant Attorney General Civil De.fense Director Office of the Attorney General Town of Brentwood 25 Capitol Street 20 Franklin Concord, NH 03301 Exeter, NH 03833 Elly n R . Weis s , Es q . William Armstrong Diane Curran, Esq. Civil Defense Director Harn.cr. & Weiss Town oF Exeter 2001 S Street, NW 10 Front Street Suite 430 Exeter, N H 03833 Washington, D C 20C09 Robert A. Backus Esq. Gary W. Holmes, Esq.

Backus, Meyer & Solomon Holmes & Ellis 116 Lowell Street 47 Winnacunnet Road Manchester, N H 03106 Ha m ptoil, N H 03842 l Paul McEachern, Esq. J. P. Nadeau l Matthew T. B rock , Esq . Board of Selectmen Sbaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 i

Portsmouth, NK 03801 Judith H. Mizner, Esq.

Charles P. Graham, Esq. Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine & Good l

100 Main Street 85 Scard Street Amesbury, M A 01913 Boston, M A 02110 l

l Sandra Gavutis, Chairman Robert Carrigg, Chairman

, Peard of Selectmen Board of Selectmen

, RFD il, Box 1154 Tcwn Office l' Kensington, N H 0,127 Atlantic Avenue

. North Hampton, N H 03870 William S. Lord Peter J. Matthews, Hayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 Amesbury, M A 0191?

l

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. Mrs. Anne E. Goodman, Chairman Michael Santosuosso, C hairman Board of Selectmen Board of Selectmen 13-15 Newmarket Road South Hampton, N H 03827 Durham, N H 03024

. Hon. Gordon J. Humphrey Ashod N. Amirian, Esq.

United States Senate Town Counsel for Merrimac 531 Hart Senate Office Puilding 376 Main Street Washington, D C 20510 Haverhill, M A 08130 l

ib regcry / an Rekry l /~

Cou nsel f - N RJC Staff

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