ML20206D562

Memorandum & Order Partially Denying Licensee 860523 Motion for Reconsideration of 860519 Memorandum & Order Denying TMI Alert Motion for 6-month Extension of Time from 860512 to 861112 to Complete Discovery.Served on 860619

ML20206D562
Person / Time
Site:	Cooper, Three Mile Island
Issue date:	06/18/1986
From:	Paris O, Shon F, Wo17E S, Wolfe S Atomic Safety and Licensing Board Panel
To:	GENERAL PUBLIC UTILITIES CORP.
References
CON-#286-640 LBP-86-17, OLA, OLA-2, NUDOCS 8606200078
Download: ML20206D562 (10)

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3ERVED JW I4 mi UNITED STATES OF AMERICA LBP-86-17 NUCLEAR REGULATORY COMISSION g a

• ATOMIC SAFETY AND LICENSING BOARD 9 Before Administrative Judges:

Sheldon. J. Wolfe, Chairman y (fg28 4-Frederick J. Shon ti , /

Dr. Oscar H. Paris  ;

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) Docket No. 50-289-OLA-1 In the Matter of 50-289-OLA-2 GPU NUCLEAR CORPORATION, et al. (Steam Generator Plugging Criteria)

(Three Mile Island Nuclear Station, Unit No. 1) June 18, 1986 MEMORANDUM AND ORDER (Partially Denying Licensee's Motion ft.r Reconsideration)

MEMORANDUM I. Discussin On May 23, 1986, the Licensee filed a Motion for Reconsideration of the Memorandum and Order (M&O) issued on May 19,1986(LBP-86-14,23 NRC ,_). Our M&O memorialized the May 7, 1986 conference, denied in part Intervenor'Three Mile Island Alert's (TMIA) motion for a six month extension of time from May 12, 1986 to November 12, 1986, within which

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i to complete discovery,I and established a schedule for proceeding in l

this case. The Licensee advises that it has notified the NRC Staff and TMIA of the instant motion and the proposed alternative schedule, and j l

that the Staff does not object to the proposed schedule. TMIA filed an t opposing response on June 2, 1986, and on June 9, the Staff filed a response in support of the Licensee's motion.

A. Re The Request For Reconsideration of the Board's Schedule l In Column 1 below, the Board's schedule, as established in its M&O of May 19, is set forth and, in Column 2, the Licensee's proposed )

alternative schedule is set forth:

1 2 i Begin discovery August 15, 1986 July 7, 1986 l End discovery September 29, 1986 August 21, 1986 Motions for summary disposition to be filed by express mail or hand 8 ,

service October 15, 1986 August 27, 1986  ;

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At page 2 of its motion, the Licensee asserts that, during the May 7 conference, TMIA modified "its request to a delay of about four '

and one-half months," and that the Board granted the requested delay. This is an erroneous assertion because, while stating that ,

it could begin discovery on August 15, 1986, TMIA reaffirmed that 1 it would need the originally requested six month extension of time l to November 12, 1986 within which to complete discovery (Tr. l 139-40). Paragraph 1 at page 15 of the M&O reflects that, in j ruling that discovery should be completed by September 29, 1986, the Board partially denied TMIA's motion for a six month extension of time to complete discovery.

l 1 2 Answers to summary c-disposition motions to be filed by express mail or hand service October 31, 1986' -September 12, 1986 Board conference call ruling on sumary disposition motions November 10, 1986 September 22, 1986 File written direct testimony by express mail or hand service November 28, 1986 October 10, 1986 Begin hearing December 15, 1986 October 27, 1986 Complete hearing December 19, 1986 October 31, 1986 Proposgd findings of fact 3

Reply At pages I? and 15 of the M&O of May 19, 1986, the Board concluded as follows:

Finally, we are aware that our schedule will delay the Licensee's implementation during the next refueling outage of the 70% throughwall amendment. Our decision, upon a record which may be reopened, will not be issued by January 15, 1987, which is the date upon which Licensee states it would need a decision in order to implement TSCR 148 during the currently scheduled outage period of November 3, 1986 to March 13, 1987.

2 The Board's schedule for the filing of proposed findings was based upon the times set forth in 10 C.F.R. 62.754(a). The Licensee's motion proposes simultaneous filings of proposed findings on December 1, 1986 (by express mail or by hand service).

3 The Board's schedule provided that Licensee could file a reply pursuant to the time set forth in 52.754(a). The Licensee's motion proposes simultaneous filings of replies on December 8,1986 (by express mail or by hand service).

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However, Licensee's counsel also recognizes that the Staff's SSER will not be issued until the end of January 1987 and thus, if possible, results theStaff to the Licensee at anwould have earlier to (Tr.

time get its testin200-203).IO l Thus, while there is only a possibility that the Licensee l could accelerate its testing and the submission of the results to the Staff, there is no possibility that the Board could issue its decision before January 15, 1987. We must balance the consequences of delay to the Licensee against our obligations to protect public health and safety. Obviously, we conclude that public health and safety are paramount considerations.

10 We note that, as Licensee's counsel apparently concedes, even if no hearing at all were held in this case, the ,

Staff's reluctance to permit TSCR 148 to become effective before completion of both the Licensee's confirmatory tests and the Staff's analyses would make it difficult to assure that the change could be implemented in time to benefit Licensee during the scheduled refueling outage.

Nothing that the Licensee advances in support of its request for i

modification of the Board's schedule is new or reflects a departure from the positions that Licensee made known during the May 7 conference.

Thus, our conclusion, supra, remains unchanged. Once again, at pages 2 and 4 and in footnote 1 of the motion, Licensee speaks only of the

" possibility" and of "a fighting chance" that, if its proposed modified schedule is adopted by the Board, the Board's decision could be issued in time to permit Licensee's implementation of OLA-1 during the next refueling outage.4 Noting that the Staff has already stated that it 3

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In asserting that the Board's scheduling for the commencement of discovery constitutes an unnecessary delay to the ultimate (Footnote Continued)

1 probably could not issue the amendment before January 30, 1987, the Licensee asserts that it has been and is " attempting" to revise the refueling outage activities (currently scheduled for the period m.

November 3, 1986-March 13, 1987) or to accelerate the submission of its test data to the Staff. We are not blind to the fact that proposed I timetables are ofttimes not met, and we will not be ramrodded into foreshortening the proceeding and into rushing to an earlier decision on a matter that is so important to the public health and safety. Further, we note that the Licensee's response of April 17, 1986, inflexibly opposed the granting of TMIA's motion for a six month extension of time without suggesting, as it now does, some modicum of compromise. Then it was and now it is of concern to the Board that the Licensee apparently was and is seeking the withdrawal of the sole intervenor (whose representative will not be available and prepared prior to August 15, 1986) in order that its request for the 70% throughwall amendment would be uncontroverted.5 Finally, we are not persuaded by the argument that (Footnote Continued) disposition of TSCR 148, the Staff's response merely speculates

both that such scheduling will result in " potential" prejudice and that the Licensea's proposed alternative schedule (as modified by the Staff's suggestion) preserves the " possibility" that TSCR 148, if granted, could be implemented during the next scheduled refueling outage (Staff's response at 4). .

5 In its response of June 9, the Staff suggested that the Licensee's proposed date for the completion of discovery should be extended by ,

seven days, until August 28, and that the balance of Licensee's l proposed schedule should be extended correspondingly. Agreeing l with the Licensee that, under Commission rules and case precedent.

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the Board's schedule is unjustified and unduly prejudicial in that, if the license amendment cannot be issued in time for implementation during the next scheduled refueling o'utage, the Licensee may have to

! unnecessarily remove from service those steam generator tubes which would exceed the current 40% throughwall limitation in order for the plant to resume power at the conclusion of the outage (Licensee's Motion atpp.3and7). Such an argument runs counter to Licensee's statements made during the special prehearing conference held on March 27, 1986, that "We know what caused it [ inner-diameter corrosion] and we stopped (Footnote Continued) commencement of discovery need not await the issuance of the SER (at the end of July 1986), the Staff then argues that TMIA would not be prejudiced in that TMIA would have sufficient time to discover the bases for the SER before its issuance, to review the SER when issued, and to complete its discovery. (Staff's response

'at 3 and 4). Like the Licensee, the Staff shows a remarkable insouciance both about TMIA's sole representative *s inability to proceed with discovery prior to August 15 and about the very short time within which to complete discovery upon matters important to the public health and safety. Moreover, 10 C.F.R. 52.740(b)(1) and 10 C.F.R. Part 2, App. A, LIV (a), do not state that commencement of discovery need not await the issuance of the SER. Finally, the case of Canmonwealth Edison Co. (Bryon Station, Units 1 and 2),

LBP-81-30A,14NRC364,369(1981) merely holds that, prior to the issuance of the SER, an applicant may proceed to discover the bases 4 for contentions if a good deal of information is already available to the intervenor in the FSAR and other documents. In the instant case, contentions are not involved and the document, the SER, is not and will not be available to TMIA until the end of July. Even

if TMIA was able to submit written interrogatories to the Staff prior to the issuance of the SER, we firmly believe that, with respect to the very complex and important matters involved therein, TMIA is entitled to a thorough review and study of this document prior to commencing discovery.

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that cause. Steps are in place so that it will not reoccur and there is no corrosive environment" (Tr. 30).

l B. Re The Request for Reconsideration of the Board's Zion Type Ruling l

At various places in its motion, the Licensee indicates its i displeasure with the Board's Zion type ruling.6 Ultimately at page 10 of the motion, it urges that the option for reopening the hearing should not rest with TMIA. The Licensee's scenario is as follows: Pursuant to the Licensee's proposed scheduling, December 8,1986, would be the due l date for the simultaneous filings of reply findings. Licensee's j confirmatory test data, which my be available in December, would promptly be given to TMIA to permit TMIA to determine whether it should request an additional hearing. Even if the Board were to elect to delay its initial decision pending a motion by TMIA for an additional hearing, it is conceivable that the Board could determine that further hearings are unnecessary and could issue its initial decision by January 15, 1987, the date by which the Licensee needs an initial decision in order to implement the 70% throughwall amenoment during the refueling outage.

In the first place, the scenario lacks a basic foundation because, as indicated above in Part IA, we are denying the request for a l

l 0 See Connonwealth Edison Company, (Zion Station, Units 1 and 2),

LBP-73-35, 6 AEC 861, 865, affd. ALAB-226, 8 AEC 381, 400 (1974).

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reconsideration of scheduling. Second, the scenario is flawed because it merely speculates that Licensee's test data would be available in December. Third, the scenario is flawed because TMIA would only have in no hand the raw test data furnished by the Licensee without the benefit of having in hand the Staff's final position which would be set forth in the SSER.7 Finally, in suggesting that, after reviewing the Licensee's raw test data, the Board itself could detemine that a further hearing would be unnecessary, the scenario is fatally flawed because it would gut the Board's Zion type ruling in depriving TMIA of the opportunity to examine whether the Licensee's raw test data is confirmed in all material respects by the Staff's evaluation in the SSER. 1 i

7 The Staff agrees with the Licensee that the time in which TMIA may request an additional hearing should begin to run from the date that the Licensee provides its test data to the parties and cites in support the case of Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1045 (1983). (Staff's '

response at 4 and 5). However, during the May 7, 1986 conference, the Staff stated that its final position in the SSER on the issuance of the amendment would have to await its analysis of the Licensee's test data, that its analysis would not be accomplished before the end of January 1987, and that "it is conceivable that our position might change if the results don't bear us out is in the realm of anything is possible" (sic). (Tr. 153, 191).

Moreover, the Catawba case is inapposite. It merely held that the institutional unavailability of a licensing-related document does not establish good cause for the late filing of a contention if information was publicly available early enough to provide the basis for the timely filing of that contention. Accordingly, we l adhere to our ruling that within ten (10) days after the service of l the SSER, TMIA, as well as other parties, may file a notice requesting standards foranreopening additional hearing)(without a record having limited to matters to meet within the the usual scope of the admitted contentions, which arose subsequent to the closing of the record.

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Finally, at pages 10 and 11 of its motion, the Licensee also requests clarification of the Board's Zion type ruling. It urges that the ruling should be amended to expressly require that, in the event i

TMIA requests an additional hearing after receiving pertinent information developed by the Licensee during the refueling outage and developed by the Staff in its SSER evaluation of the Licensee's test data, TMIA must at least satisfy the " significance" test -- i.e., TMIA must indicate that the test data is so significant as to change the result of the prior hearing. The Staff concurs in this request. TMIA did not oppose the request. We were aware of NRC case law prescribing strict standards for reopening a closed record. In ruling in the M&O of May 19, 1986 that TMIA did not have to meet these usual standards for reopening the record, we did not intend that TMIA (or, for that matter, any other party) could file a frivolous motion to reopen. The Zion Board's ruling, which we adopted, indicated that the movant had to show circumstances illustrating the need for a new hearing. Accordingly, we grant the request for clarification. TMIA, as well as any other party, must indicate in a motion to reopen that the new test data and the analyses thereof are so significant as to change the result of the prior hearing.

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ORDER For the foregoing reasons, the Board denies, in part, Licensee's Motion for Reconsideration of May 19, 1986 Memorandum and Order.

It is so ORDERED.

ATOMIC SAFETY AND LICENSING BOARD

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SheTdon J.'Wg45e, Cla9 man ADMINISTRATIHjJUDGE 0.W \ [W ~

Dr. Oscar H. Paris'

.ADMINIS TIV JUDGE Frederick J. Shon -"

ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 18th day of June,1986.

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