ML20128B818

NRC Staff Response to San Luis Obispo Mothers for Peace Suppl to Petition to Intervene.* Petitioner 920818 Petition Requesting Hearing as Suppl by 921026 Suppl to Petition to Intervene Should Be Denied

ML20128B818
Person / Time
Site:	Diablo Canyon
Issue date:	11/30/1992
From:	Lisa Clark, Hodgdon A, Jorgensen A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20128B822	List: ML20128B818 ML20128B834
References
CON-#492-13419 OLA-2, NUDOCS 9212040095
Download: ML20128B818 (43)

Text

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.Wu re 7.

NovernbEfB0,1992

'92 DEC ~1 n;:47

..n m :;; 4 m UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE T'*E ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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Docket Nos.

50-275 OLA - 2 PACIFIC GAS AND ELECTRIC COMPANY )

50-323 OLA-1.

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(Diablo Canyon Nuclear Power Plat,

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(Construc ion Period Recovery)

Unit Nos. I and 2)

)

NRC STAFF RESPONSE TO SAN LUIS OBISPO MOTHERS FOR PEACE SUPPLEMENT TO PET' TION TO INTERVENE INTRODUCTION On October.76,1992, San Luis Obispo Mothers for Peace (referred to herein as

" Petitioner") filed a Supplement to its petition to intervene in a hearing concerning Pacific Gas & 5xtric Company's ("PG&E" or " Licensee") application to arnend its cperating licen.

or its Diablo Canyon Power Plants ("DCPP") to,hange the expirat.on dates for those licenses to allow for a full forty years of operation. The NRC Staff hereby responds to Petitioner's Supplement.

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v-9212040095.921130

.PDR. ADOCiA 05000275 O

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IBCKGROUND On Juiy 22,1992, the Nuclear Regulatory Commission (NRC) published in the Federal Register a " Notice of Consideration of Issuance of Amendment to Facility Operating License and Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing," 57 Fed. Reg. 32,571, regarding PG&E's application to change the expiration date of the Diablo Canyon Nuclear Power Plant, Unit 1, operating license from April 23, 2008, to September 22,2021, and to change the expiration date of the Unit 2 license from December 9, 2010, to April 26, 2025, to allow for 40 years of operation pursuant to 10 C.F.R. I 50.51, 57 Fed. Reg. 32,575 (July 22,1992). The notice included a proposed no significant hazmds consideration determination, and specified that any person whose interest might be affected by this proceeding and who wished to participate as a pany "must file a written request for a "aring and a petition for letve to intervene" by August 21,1992. 57 Fed. Reg. 32,571. The notice further described the requirements of 10 C.F.R. Q 2.714 applicable to petitions for leave to intenene. 57 Fed. Reg. 32,571, 32,572.

By 1 citer to the Secretary of the Commission, dated August 18,1992, the San Luis Obispo Mothers for Peace (Petitioner) requested a hearing and petitioned for leave to intervene. On September 4 and 8,1992, respectively, PG&E and the NRC Staff filed 1

responses: PG&E sought denial of the petition, and the NRC Staff argued that the petition was deficient but recommended a deferral of any decision pending receipt and consideration of any revised petition.

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3 On September 10, 1992, an Atomic Safety and Licensing Board (" Licensing Board") was established to rule on petitions for leave to intervene and requests for-hearing. 57 Fed. Reg. 43,035 (September 17,1992). By Memorandum and Order dated September 24,1992, _the Licensing Boara, inter alla, established filing schedules and scheduled a prehearing conference.

The proposed operating license amendments would recover or recapture into the operating licenses the period of construction for the reactors. The licenses, which are limited to a term of 40 years by section 103(c) of the Atomic Energy Act (AEA),42 U.S.C. 6 2133(c), were originally issued under a Commission policy under which that 40-year life extended from the date ofissuance of the construction permit. In 1982, the Commission began issuing th 40-year operating licenses starting with the date of issuance of the operating license, and has approved license amendments for many reactors conforming the earlier licenses to this new policy. These are generally referred to, and referred to in this pleading, as " construction permit recapture" ("CP recapture")

amendments.

STANDING The Commission's standing requirements stem from section 189a of the Atomic-Energy Act (AEA), 42 U.S.C. i 2239(a), which provides, in pertinent part, that the Commission shall grant a hearing upon the request of "any person whose interest may be affected" by a proceeding. See also 10 C.F.R. ( 2.714(a)(1). As.to whether a -

petitioner has steading, the Commission utilizes contemporaneous judicial concepts of

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4 standing. See Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI 92 2,35 NRC 47,56 (1992); Metropolitan Ellson Co. (Three Mile Island Nuclear Station, Unit 1), CLI 83 25,18 NRC 327,332 (1983).

Under those standards, the petitioner must demorstrate (1) that it has suffered or will likely suffer " injury in fact" from the proposed licensing action, (2) that the injury is arguably within the zones of interest sought to be protected by the statute being enforced and (3) that the injury is redressable by a favorable decision in the proceeding in question. Public Service Co. ofNew Hampshire (Seabrook Station, Unit I), CLI 14, 34 NRC 261, 266-67 (1991).

In its letter pention, Pentioner indicated that it had participated in earlier proceedings involving the Diablo Canyon facility. Standing in an earlier proceeding, however, does not automatically confer standing in subsequent proceedings, even if the scope of earlier and later proceedings is similar. See Clereland Electric illuminaring Co.

(Perry Nuclear Power Plant, Unit No.1), LBP-92-4,35 NRC 114,125 26 (1992).

Here, Petitioner's concerns about radiological health and safety and the impact of Diablo Canyon operation on the environment fall within the zones of interest sought to be protected by the AEA and National Environmental Policy Act (NEPA). Here, the standing question is whe her the Pentioner has made a satisfactory showing ofinjury in fact.. That showing must be actual, but it need not be substantial. Houston Lighting and j

I Power Co. (South Texas Project, Units 1 and 2), LBP-79-10,9 NRC 439,447-48 (1979),

afd, ALAB 549,9 NRC 644 (1979).

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. 4 There are several ways for a group like Petitioner's group to demonstrate that it suffered or will likely suffer injury in fact. It can assert either organizational injury or injury to a member that it represents. Petitioner seeks the latter course and relies on representational injury.

To assert representational injury in fact, Petitioner must identify one or more of its members by name and address, how that member may be affected (such as by activities near the plant site) and show that it is authorized to request a hearing on behalf of the member. South Texas, ALAB-549, supra,9 NRC at 646-47; Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 535,9 NRC 377, 392-97 (1979). Further, the organization must demonstrate that the person signing the petition was authorized by the organization to do so. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-791,9 NRC 73,77 (1979). An organization has sufficiently demonstrated its standing if its petition is signed by a ranking official whose own personal interest supports intervention. Duke Power Co. (Amendment to Materials License SNM-1773 -- Transportation of Spent Fuel from Oconee Nuclear

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Station for Storage at McGuire Nuclear Station), ALAB-528,9 NRC 146,151 (1979).

Residence of an organization member within 50 miles of a power plant site has, in construction permit and operating license proceedings, been recognized as sufficient to confer standing. This 50-mile presumption does not apply in every operatiitg license amendment proceeding, however, but only in those concerning significant amendments involving " obvious potential for offsite consequences." Florida Power & Light Co.

(St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325,329-30 (1989).

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6-In other amendments, a petidoner must demonstrate a particular injury in fact that will result from the action for which autbuization is sought.

In its September 8,1992, response to Petitioner's letter petition, PG&E took the position that specific injury in fact must be demonstrated in this :ype of proceeding, and that mere residence within 50 miles of the site is insufficient.

The Board deferred its decision on this issue, except to note that PG&E failed to cite cases relevant to its claim that the 50-mile presumption does not apply. In contrast, the Licensing Board in an earlier construction period recapture proceeding required no direct showing ofinjury in fact. Vermont l'ankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-90-6,31 NRC 85,90 (1990);' see also Nonherr Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619,12 NRC 558,564 (1980).

Petitioner in its Supplement submitted affidavits from five named members who live within 50 miles of the plant in support of its standing claim. The NRC Staff Pes not challenge Petitioner's showing of standing.2.3 i In Vermont l'ankee, the standing question was different in that the petitioner was the State of Vermont, representing its citizens.

2 It should be noted that in its response PG&E maintains that Petitioner does not have standing because this is an operating license amendment involving CP recapture, not an application for an operating license where mere residence within 50 miles would confer standing. As noted above, however, there is no clear authority on standing in a CP recapture proceeding.

' Although the NRC Staff does not challenge Petitioner's showing of organizational standing as a representative of its members, as regards Contention VI, where Petitioner asserts that PG&E's violations of NRC regulations affect the health of PG&E employees, (continued...)

7 ADMISSIBILITI OF CONTENTIONS

'l To be admitted as a party, a petitioner must proffer at least one valid contention.

The substantive.equirements for admissible contentions are set forth in 10 C.F.R. I 2.714(b)(2), which requires that eact xntention consist of a specific statement of the issue oflaw or fact controverted, a brief explanation of the bases of the contention, a concise statement of the alleged facts n Expert opinion on which the petitioner intends to rely in proving the contention at the hearing, references to those specific sources and documents on which the petitioner intends to rely, and sufficient information. 54 Fed. Reg. 33,168, 33,180 (August 11, 1989).

Subsection (d)(2) further provides that a presiding officer or adjudicatory board designated to rule on the admissibility of a contention shall refuse to admit a contention if (a) the contention and supporting material fail to satisfy the requirements of 10 C.F.R. 6 2.714(b)(2), or (b) "the contention, if proven, would be of no consequence in the l

proceeding because it would not entitle petitioner to relief." 10 C.F.R. { 2.714(d)(2);

see Rules of Practicefor Domestic Licensing Proceedings -- Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (August 11, 1989).'

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Fetitioner lacks standing to raise this issue as that org:mization cannot represent those workers without their authorization. Also, as discussed below, the NRC Staff opposes Contention VI on other grounds es well, d In adopting the regulations the Commission stated:

Under these new rules an intervenor will have to provide a concise statement of the alleged facts or expert opinion which support the contention and on which, at the time of filing, the intervenor intends to (continued...)

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8-In addition, a contention must raise matters appropriate for adjudication in a particular proceeding to (1) establish a suff cient foundation for the contention to warrant fu:ther inquiry into the subject matter addressed by the assertion, and (2) put the other parties sufficiently on notice of the issues so that they know generally what they will have to defend against or oppose. Sec 54 Fed. Reg. 33,169, D,171; Philadelphia Electric Co.

(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1976).5

• (... continued) rely in proving the contention at hearing, together with references to the specific sources and documents of which the intervenor is aware and on which the intervenor intends to rely in establishing the validity of its contention. This requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.

In addition to providing a statement of facts and sources, the new rule will also require intervenors to submit with their Jht of contentions sufficient information (which may include the known significant facts described-above) to show that a genuine dispute exists b: tween the petitioner and the applicant or licensee on a material issue of law or fact.

This will require the intervenor to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, and to state the applicant's position and the petitioner's opposing view.

When the intervenor believes the application and - supporting material do not address a relevant matter, it will be sufficient to explain why the application is deficient.

54 Fed. Reg. 33,168, 33,170.

The revised rule, however, overturned those cases holding that petitioners are not 5

required to describe facts which would be offered in support of a proposed contention.

54 Fed. Reg. 33,170, citing Mississippi Power & Light Co. (Grand Gulf Nuclear Station, (continued...) _

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9 A contention must fall within the scope of the issues set forth in the notice of i

hearing. See Public Service Co. ofIndiana (Marble Hill Nuclear Cenerating Station, Units 1 and 2), ALAB-316,3 NRC 167,170-71 (1976); see also Wisconsin Electric Ca.

(Point Beach Nuclear Plant, Units 1 and 2), ALAB 739,18 NRC 335,339 (1983).

The alleged Lets on which a contention is based must be sufficient to demonstrate that a genuine dispute oflaw or fact exists. 54 Fed. Reg. 33,170.'. As stated in Duke

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Pomer Co. (Catawba Nuclear Station, Units I and 2), ALAB 687,16 NRC 460,468 (19S2), vacated in part on other grounds, CLI-83-19,17 NRC 1041 (1983):

[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention.

Neither Section 189a of the Atomic Energy Act nor i 2.714 of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff, in sum, to set forth an admissible contention, a petitioner must examine publicly available information to provide some factual basis for its position and demonstrate that there exists a genuine dispute between it and the licensee. 54 Fed. Reg. 33,171. The Commission's regulations preclude "a contention from being admitted where an 5 (... continued)

Units 1 and 2), ALAB-130,6 AEC 423,425-26 (1973); Houston Lighting & Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 546-49--

(1980).

An adequate basis for a contention is not established by simply referencing a large number of documents, but requires a petitioner to clearly identify and summarize the facts on which it relies. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20,21 NRC 1732,1741 (1985), rev'd and remanded on other grounds, CLI-86-8,23 NRC 241 (1986).

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intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross examinatior, as a fishing expedition which might produce relevant supporting facts." Id.; see also BPI v. AEC, 502 F.2d at 429. A person or organization seeking admission to a licensing proceedkng is c.pected to have read "the portions of the application (including the applicant's safety and environmental reports) that address any issues of concern to it and demoastrate that a dispute exists between it and the applicant on a material issue of fact or law." 54 Fed. Reg. 33,171.

As the Court stated in Vermont Yankec Nuclear Power Corp. v. NRDC,435 U.S.

519, 535-36 (1978):

(I]t is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the in ervenors' position and contentions. This is especially true when the intervenors are requesting the agency to embark upon an exploration of uncharted territory.... Indeed, administrative proceedings should not be a game or a forum to engage in unjustified costructionism by making cryptic and obscure reference to matters that "ought to be" considered and -

then, after failing to do more to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the-agency failed to consider matters " forcefully presented."

As discussed below, none of the contentions proposed by Petitioner satisfies the standards for contentions set forth in the Commission's regulations governing contentions,.

10 C.F.R. Q 2.714. Further, to the extent that Petitioner raises matters that concern current operation of the facility rather than operation in the' recapture period, those concerns are properly raised in a petition pursuant to 10 C.F.R. I 2.206 and may not be-admitted in the instant proceeding.

11 Contention 1: Maintenance and Surveillance -

Contention I states:

The San Luis Obispo Mothers for Peace contends that Pacific Gas and Electric Company's proposal to extend the life of the Diablo Canyon Nuclear Power Plant for more than 13 years (Unit 1) and almost 15 years (Unit 2) should be denied because PG&E lacks a sufficiently effective and comprehensive surveillance and maintenance program.

As a basis for its Contention I, Petitioner disputes a statement that PG&E makes in its License Amendment Request 92-04, section 4.2.3., that these " programs assure that any significant degradation of plant equipment will be promptly identified and corrected throughout the proposed 40-year operation license terms." Supplement at 5-6. Petitioner states its belief that, contrary to its statement, PG&E is unable to demonstrate reasonable assurance that operation of the plant beyond the date for which ope ation was originally approved will provide adequate protection to the public health and safety. Id.

Petitioner states that PG&E's maintenance program has been noted as having significant weaknesses due in large part, in Petitioner's opinion, to the " unorthodox ree base scheme" by which the California Public Utilities Commission allows PG&E to be

" paid solely for power produced." Supplement at 6. Petitioner notes that it opposed this

" performance based pricing" on the basis that PG&E would put off maintenance until regularly scheduled refueling outages, thus placing the public at risk while maximizing-profits. Id.

Petitioner cites as an instance of PG&E's slow response to correct maintenance problems the circumstances surrounding Inspection Report No. 92-17. (May 12,- 1992),

which led to a Notice of Violation (June 19, 1992). Supplement at 7. Petitioner quotes

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. from a report of an enforcement conference held on May 19, 1992, which Petitioner references as "Nos. 92-19, EA 92 086 (June 17,1992)," that the conference was ". eld to-discuss the licensee's " failure to comply with technical specification action statements for inc7erable containment fan coolers from March 27,1991 to February 22,1992, and the apparent failure to take corrective action to preclude recurrence of similar problems identified in the past." Supplement at 8. Petitioner states that three " violations" were identified in this " inspection report." Id.

Petitioner cites three other Notices of Violation, one of August 3,1992, involving problems with positive displacement charging pumps, another of February 28, 1992, involving the inoperability of a reactor cavity level instrument, and the third of June 5, 1992, Inspection Report No. 92-14, concerning failure to provide written instructions for the assembly of the expansion bellows to the turbocharger of the diesel generator EDG-2 3. Supplement at 9-11. As other " incidents" supporting Petitioner's claim that l

" maintenance and surveillance practices at Diablo Canyon Nuclear Pcwer Plant have been further criticized by the NRC for lack of attention to detail, poor or incomplete work, inadequate instructions to personnel and ineffectis e sarveillance," Petitioner also cites two Licensec Event Reports (LERs), one of March 5,1992, LER 2-91-012-00, concerning debris left in containment after containment integrity was established following an outage, and the other of August 6,1992, LER 1-92-006-00, concerning Diesel Fuel Oil Transfer System Degradation Due To General Corrosion (Supplement at 9-10,12). Petitioner also relies on two inspection reports not involving Notices of Violation, namely Inspection Report No. 91-39 (January 24,1992), whien Petitioner characterizes as identifying areas

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....~,...,.-,,,-w licensee's housekeeping control required increased attention after he found gum, candy wrappers, sunflower seeds and/or smoked cigarettes in 12 locations in a zone where eating, drinking and smoking were banned.7 Supplement at 10-12.

1. Containment Fan Cooler Units As regards Petitioner's reliance on the situation surrounding the backdraft dampers j

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in the containment fan cooler units (CFCU's), the Staff notes that Report No. 92-19, EA i

92-086 (June 17,1992), is an enforcement conference report. Cf.' Supplement at 7-8, j

11. The notice of violation, dated June 19,1992, issued on this matter states that after -

review of the enforcement conference and other information, the proposed notice of violation concerning the operability of CFCU's was withdrawn, although the Licenne was cited for other matters involving improper maintenance of the dampers.

A contention may not be based on information repudiated by its source Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127,136 (1987).

The situation involving the CFCU's was identified in a Licensee Event Report, not in an NRC inspection report. Thus, Petitioner has provided no basis for a contention.

alleging that PG&E's surveillance and maintenance program is ineffective. See LER 91-019-00 (reported March 20, 1992).8

' The report, which Petitioner refers 3 as an " inspection report" and references as "Nos. 92-19, EA 92-086 (June 17, 1992)" is Report Nos. 50-275/92-19. and 50-323/92-19, EA 92-086 (June 17,1992).

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• On June 5,1992, following the enforcement conference mentioned above, PG&E submitted Revision 1 to LER 91-019-00, reporting on an evaluation demonstrating that L

the stuck open backdraft dampers would not have prevented the CFCU's from performing l

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2. Other NRC Inspection Recorts P6tioner's reliance on NRC Inspection Report 91-39 (January 24,1992), as a basis for its contention that PC&E's surveillance and maintenance program is not sufficiently effective and comprehensive to support CP recovery (Supplement at 10)is also misplaced. The report concerns an inspection in which NRC inspectors reviewed PG&E's program developed in response to Generic Letter 89-10, " Safety Related Motor Operated Valve Testing and Surveillance." The inspection found that PG&E appeared to be developing an aggressive, well-integrated program for assuring MOV reliability.

Report Nos. 50-275/92-39 and 50-323/91-39 (January 25,1992) at 1.

While the inspection did identify areas of weakness and areas in need of further development, it identified no violations or deviations. Id. at 1-2.

Similarly, Petitioner fails to provide the full context for its citation to NRC inspection Report No. 92-14 (June 5,1992).

upplement at 11. Pc'itioner quotes from 1.

I the cover letter to the effect that "the violation is of concern because of the need for I

i attention to detail in the documentation of construction activities potentially affecting the l

seismic qualification of the diesel generator." However, Petitioner omits the qualifying theit safety function and that the event was no longer reportable pursuant to 10 C.F.R. 6 50.73. As mentioned above, Region V agreed with PG&E, in part on the basis of Revision 1, that Technical Specification 3.6.2.3 was not violatea.

Licensee Event "eport (LER) 1-92.-023-00, dated November 20, - 1992, also -

involves-these CFCU dampers.

It indicates that cracks were found through the Licensee's surveillance and the Licensee had taken maintenance action to replace the-dampers on Diablo Canyon Unit I with more resistant material and would replace the dampers on Unit 2 with this more resistant material.during that unit's fifth refueling outage in about March 1993. At 13. This problem will be mooted long before th.: CP recapture period.

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1 introdt.ctory clause, "[w]hile considered of minor safety significance."

Letter, L. F. Miller, Jr., Chief, Reactor Safety Branch, Region V, NRC, to Mr. G. M. Rueger, Senior Vice President and General Manager, Nuclear Power Generation Business Unit, PG&E, June 5,1992. Also, Petitioner fails to note that under General Conclusions and Specific Findings, Inspection Report No. 50-323/92-14 stated, "In general, the inspector concluded that the new emergency diesel generator mechanical systems were being instalid in accordance with engineerin;; requirements. Craft personnel had knowledge concerning installation criteria. There was adequate quality assurance overview of this project in the areas examined." Under "Signincant Safety Matters," the Report listed "None. "

On July 2,1992, PG&E replied to the NOV, acknowledging the violation and explaining the circumstances giving rise to it. PG&E noted the corrective steps it had taken and the corrective steps it would take to avoid further violations. PG&E also noted its belief that it was in full compliance with 10 C.F.R. Part 50, Appendix B, Criterion V.

Enclosure to letter, Gregory M. Rueger, PG&E, to U.S. Nuclear Regulatory Commission, July 2,1992.

3. The LERs on Which Petitioner Relies The two LERs on which Petitioner relies as " incidents" establishing that

" maintenance and surveillance practices at Diablo Canyon Nuclear Power Plant have been

... criticized by the NRC" provide no basis for Petitioner's allegation, in that they are licensee reports and not NRC documents. The LERs here cannot provide a basis for an allegation that DCPP has been criticized by the NRC.

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. The CPUC Settlement Petitioner states (Supplement at 6) its belief that maintenance weaknesses at Diablo Canyon are due in large part to " performance based picing," established by the California Public Utilities Commission ("CPUC") in its Decision 88-12-083,30 CPUC 2d 189, a decision that approved a settlement of issues relating to the apportionment of the costs of Diablo Canyon. The short answer to Petitioner's concern is that, whatever the merits of Petitioner's argument might be, the matter is not admissible in this CP recapture proceeding. In 1984, the Commission eliminated financial quali5 cations reviews for regulated utilities applying for operating licenses. See 10 C.F.R. 6 50.33(f).

The Commission noted thz t there is support for the proposition that, for electric utilities, there is no connection between the Commission's financial qualifications review and safe operation of the facility. 49 Fed. Reg. 35747 (September 12, 1984). The Commission's regulaiions are subject to attack in Commission adjudicatory procaedings only as provided in 10 C.F.R. 5 2.758. Thus, Petitioner may not raise these concerns by wcy of a contention in this proceeding.

The quotation from-the Commission's Final Policy Statement, Possible Safety-Impacts of Economic Performanx Incentives,56 Fed. Reg. 33,945, 33,946 (1990), that PG&E sets forth at page 24 of its Response needs-to be seen in context.' The Ccmmission's final policy was published after consideration of comments on a proposed policy. In the " Summary" section, the Commission stated that certain forms of economic -

' The NRC Staff does not entirely agree with PG&E's statement in its Response that NRC policy strongly favors long-term economic performance incentives such as those in DCPP's ratemaking. Response at 24.

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performance incentive (EPI) regulation might adversely affect the operation of nuclear y

plants and the public health and safety and identified those methods of concern as the use of sharp thresholds, the measurement of performance over very short time intervals, the lack of " null zones' and inappropriate reliance on systematic assessment of licensec performance (SALP) scores or other performance indicators. The Commission reported the comments of PG&E as follows:

The Pacific Gas and Electric Company (PG&E) provided many comments on the manner in which the comprehensive performance-based rate-making settlement approved in 1988 by the California Public Utilities Commission (CPUC) for the Diablo Canyon Nuclear Power Plant provides long-term incentives to improve the reliability of the Diablo Canyon plant, The settlement, which will be in effect for 28 years, provides a number of incentives to PG&E to improve the reliability and safety of plant operations. PG&E assumes risks associated with equipment failures, prolonged outages, and new regulatory requirements for the entire 28 year period of the settlement. This program provides PG&E with an economic incentive to ensure that the plant operates well for many years. The Diablo Canyon settlement does not rely on short-term performance measurements with sharp thresholds and does not use SALP scores --

features that the NRC has identified that may adversely affect the public health and safety, 56 Fed. Reg. 33,946.

The Commission stated that after carefully considering all the comments on the draft statement, it had decided to issue the final Policy Statement with little change from the draft. The NRC Staff reads the Final Policy Statement as neither approving nor disapproving of EPI programs but as merely indicating that certain features of these programs could be adverse to safety while others could enhance safety. For example, the Commission stated:

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. ' Performance measurements for short term intervals would encourage the licensee to focus on a short term target or performance goals such as a higher capacity factor or availability factor.... In contrast, performance measurements for long-term intervals would prompt the utility to follow sound maintenance and operational practices to improve operating performance.... Short term measurements tend to make safety and economic goals conflict with each other, while long-term measurements tend to make the two goals complementary.

56 Fed. Reg. at 33,947. The NRC Staff agrees with PG&E that the terms of the CPUC -

settlement do not establish the type of performance rneasures that are of concern to the Commission.

In summary, Contention I lacks basis and specifi6 / in regard to PG&E's maintenance and surveillance program, The bases are premised on " apparent violations" that were not violations, statements from inspection reports taken out of context, and isolated insignificant violations. Thus, Petitioner does not raise a proper challenge to PG&E's surveillance and maintenance program and raises no issue of fact material to CP recapture, the subject matter of this proceeding. Accordingly, the Licensing Board should not admit Pet:tioner's Contention I.

Contention H* Personnel PerformanCA Contention II states:

The San Luis Obispo Mothers for Peace contends that the proposed license extension at Diablo Canyon Nuclear Power Plant should not_be g d

because PG&E's employces have not proven themselves skilled, reliable or motivated enough to adequately protect the public safety.

To support this contention Petitioner has identified a number of incidents that have resulted from personnel errors. Supplement at 14-16. However, those errors, when

19 considered together, do not reflect any recurring or pervasive problem with the -

competence of PG&E employees. Rather, the errors represent isolated incidents of the nature that inevitably occur in the operation of a nuclear reactor. Such isolated instances do not provide a basis to show that a plant may not continue to operate. See Union Electric Co. (Callaway Plant, Unit 1) ALAB-740,18 NRC 343,346 (1983); Paci/ic Ga.r

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-756, 18 NRC-1340,1345 (1983) (both dealing with the need to show a pattern of quality control violaticas).

In view of this standard, Petitioner has failed to establish a basis for its contention.

It has provided no rationale for concluding that the incidents are related to any underlying breakdown in the training, motivation or reliability of the PG&E employees and none is evident from the documents it has cited.

It was the Licensee that reported four of the incidents cited by Petitioner.

Supplement at 14-16. While the Licensee determined that each of incidents occurred as the result of personnel error, it also stated tha' none of the events affected the health and safety of the public in any way. Further, in each instance, the Licensee instituted 1

additional training and/or counseling in order to ensure that a similar event would not occur in the future. Thus, the LERs demonstrate that the Licensee's quality control program is working, since problems are being identified and corrected as they occur.

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None of those events have been deemed serious enough by the NRC Staff to warrant enforcement action.

Petitioner also cites three inspection reports to support this contention.

Supplement at 14-16. While the inspection reports reveal that some personnel errors occurred, they do not reflect any pervasive or systematic problem which would endanger the safety of the public. Indeed, the inspection conducted from February 4 through March 16,1992, revealed no significant safety matters or viciations. Inspection Report Nos. 50-275/92-05 and 50-323/92-05 (April 17,1992) at Summary. Graemlly, the Licensee's strengths were found to be reflected by a quick response to an unexpected The hrst incident cited occurred when a mobile crane boom came too close to the 3

500 kV power lines. LER 1-91-004-01 (July 29,1992) at 1. The root cause, determined to be personnel error by the crane operator and the foreman, was corrected by training all appropriate plant and construction personnel on electrical safety accident prevention rules. Id. at 10,12. The next incident cited occurred when calibration of a steam flow channel was performed using an incorrect data sheet / scaling calculation. LER 2-92 002-00 (March 13,1992) at 1. The cause of the event was found to be personnel error on the part of a non-licensed engineer. Id. at 5. Corrective' action included counseling of the responsible personnel and distnbution of an incident summary. Id. at 6. The third event occurred when a non-licensed operator decided to fill the acid and caustic day tanks simultaneously, causing an acid / caustic spill and a chemical mist to enter the turbine building. LER l-92-007-00 (July 20,1992) at 1. The root cause was determined to be personnel er or, and the corrective actions taken included counseling of the operator and preparation of an incident summary which was reviewed with the control operators. Id.

The fourth incident cited by Petitioners occurred when the sprinkler fire water to the component cooling water and centrifugal charging pump areas was isolated in accordance with an equipment tagout request without the Shift Foreman noting that a continuous fire watch was needed. LER 1-92-008 00 (July 22,1992) at 1.

The root cause was' determined to be personnel error on' the part of the Shift Foreman and the corrective-actions taken included counseling him and the operators regarding the importance of establishing the required fire watches and the issuance of an Operations Coordination Instruction to include establishing the required fire watches as the first step on equipment tagout requests. Id.

cutage after a reactor trip as well as a timely and a:: urate response to a quadrant power 1

tilt alarm during a power reduction, while its weaknesses were found to be reflected by j

i a lack of attention to work activities considered to be relatively simple as well as a need for more thorough and timely corrective actions. Id.

Listed as an open item was the Licensee's implementation of its human error reduction plan to address a high number of personnel error events that occurred between August and October 1991. Id. at 13 Most items in the plan, which included letters and meetings to express management's expectations for human performance, review training, a training video, the provision of a policy on pre-job briefings, and a tracking mechanism for human errors, were on schedule. Id. at 13-14. While some additional errors were found to have occurred during March 1992, id., there no indication that a systemic problem with the motivation, skill or reliability of the employees was evident.

The inspection conoucted from April to June 1992 revealed a Severity Level IV violation because of incorrect use of chainfalls while lifting the 10-142 cask primary and secondary lids. Inspection Report Nos. 50-275/92-16 and 50-323/92-16 (July 7,- 1992) -

at 3-4. The cause of the violation, determined to be personnel error, was corrected by having a manager discuss industrial safety with the riggers and emphasize the importance -

of proper rigging, safety pracuces, and the cessation of work when required activities are-outside the pre-job tailboard scope. Reply to Notice of Violation in NRC Inspection Report 50-275/92-16 and 50-323/92-16 (August 5,1992) at 2. This incident, even when considered in conjunction with the other events cited by Petitioner, shows no more than an isolated problem that has been addressed by the Licensee through additional training.

.. - - =. -

- Petitioner provides no reason to conclude that PG&E employees, overall, are not skilled, motivated or reliable enough to operate the plant in a safe manner <

This conclusion is supported by the remaining " inspection report" cited by Petitioner, which is actually a report of an enforcement conference held on May 19, 1992, to discuss an apparent problem with containment fan cooler units.

Report 50-275/92-19 and 50-323/91-19 EA 92-086 Cune 17,1992)." Supplement at 1415.

While it was determined that the most significant cause of one of the apparent violations, the failure to follow approved procedures while inspecting CFCU dampers, was poor individual performance, it was observed that Diablo Canyon had operated very well in the past, and the problem reflected a need to better convey the message that employees -

needed to keep performance up. Id. at 3. The report reflects a need to ensure that good performance in the past be continued. This is not consistent with Petitioner's claim that PG&E employees have not been shown to be skilled, reliable or motivated enough to protect the public safety.

Petitioner's claim that there is no assurance that qualified personnel can be obtained to maintain the plant in the future is mere speculation and, therefore, cannot form the basis for a contention. It is Licensee's continuing obligation to assure the adequacy of personnel both in terms of numbers and qualifications.

" This matter is discussed as part of the Staff's response to Contention I at 13-14, supra.

s

In sum, Contention II cannot be admitted; no basis has been provided on which it could be concluded that the Licensee's employees would not be skilled, reliable and motivated during the CP recapture period.

fontention III: Counterfeit or Fraudulent Parts Contention III states:

The San I.vis Obispo Mothers for Peace contends that PG&E's application for an extended license should be denied because PG&E has not taken adequate measures to detect the presence of fraudulently-certified components at Diablo Canyon Nuclear Power Plant. Nor has PG&E demonstrated that it is capable of preventing the acquisition and use of such counterfeit parts in the future. Failure of such components could cause or contribute to an accident at Diablo Canyon. Thus, NRC lacks reasonable assurance that the plant can safely operate beyond its original license period.

As a basis for its Contention III, Petitioner references a GAO report, GAO, RCED-91-6 (October 1990), concerning counterfeit and substandard products.

Supplement at 18. Petitioner infers NRC concern about the subject matter from an article in the industry newsletter Inside NRC (March 27, 1988).

Supplement at 18-19.

Petitioner also mentions NRC Information Not ce 88-35 (June-3,1988), informing licensees of potential safety implications of pipe fittings and fianges supplied by_ Piping Supplies, Inc., and West Jersey Manufacturing Company, Supplement at 19, and NRC Information Notice 88-46 (July 21,1988), informing NRC licensees that five California corporations had been selling refurbished molded case circuit breakers as new.

Supplement at 19-20. Inside NRCis referenced as documentation of Petitioner's concern about Rosemount transformers, Supplement at 20; NRC Information Notice 89-59 '

i l

i

' )

(August 16,1989) is relied on for concern about counterfeit fasteners, Supplement at 20; and NRC Information Notice 91-87 (December 27,1991) is the source of Petitioner _ s -

f concern regarding possible hydrogen embrittlement of Raychem Cryofit couplings, j

Supplement at 20-21."

The only item ened by Petitioner that shows any connection between Diablo Canyon and counterfeit parts is NRC Information Notice 92-22 (March 24,' 1992), which concerns the felony convi

. of CMA International, Inc., after PG&E identified the company as the supplier of counterfeit valves. The information notice does not provide any basis for concern about Diablo Canyon with regard to counterfeit parts, it does not show that the parts were used in a safety system at Diablo Canyon or that the Licensee did not take appropriate action upon discovering the fraud.

Contention III is not admissible in this proceeding, as there is no basis for the allegation that the Lic nsee has not taken adequate measures to detect fraudulently certified components that could affect opermtion in the CP recapture period.

Contention IV: Ace-related Dectadation Contention IV states:

The San Luis Obispo Mothers for Peace contends that PG&E's application for license extension must be cenied because age-related degradation of systems, structures, and components unacceptably increases the risk of accidents during the extended period of operation.

" Petitioner also cites two inspection reports, Inspection Report 92-39 (January 24, 1992) and Inspection Report 92-09 (April 8,1992). Supplement at 21. Neither concerns counterfeit parts.

"92-39" is apparently a typographical error.

The reference is apparently to Inspection Report 91-39 (January 24,1992).

I

. As basis for its contention, Petitioner cites two G AO reports on license renewal, one dated April 1989 and the other September 1991. Supplement at 25-26. Neither supports Petitioner's contention, as both concern license renewal, i.e. a renewed license to operate a nuclear power plant licensed pursuant to sections 103 or 104b of the Atomic Energy Act of 1954, as amended, beyond a license term of forty years. See 10 C.F.R. Part 54 -- Requirements for Renewal of Operating Licenses for Nuclear Power Plants, effective January 13,1992. Neither concerns constmetion period recapture or recovery, i.e. authority to operate for the full forty years authorized by the Atomic Energy Act and the Commission's regulations in 10 e 7.R. 6 50.51. The Licensing Board in Vennont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LDP-90-6, 31 NRC 85 (1990), noted this distinction: " Construction period recapture amendments are something entirely different from amendments that would extend the life of a plant beyond its original licensing basis, which are mown as "Phnt Life Extension" amendments (sometimes " PLEX")." 31 NRC at 87 n. 2.

(The Licensing Board's footnote was accurate when written; however, " life extension" is now treated as a renewed license and is addressed in new Part M, as noted above.)

The portion of the Apul 1989 GAO Report cited by Petitioner, Unresolved P

License Renewal Questions, on its face addresses plants nearing the end of their forty year operating license that might be applying for license renewal. The Report of September 1991, NRC's Research for Nuclear' Power Plant License Renewal, does discuss, as Petitioner states, the NRC's research activity to assess aging in the context of license renewal.- That report also refers to an NRC response to a National Research-

~,

. Council recommendation that NRC should conduct research to allow it to set new design

't margins and evaluate the adequacy of existing ories in the context of licensee renewal.

"NRC advised us that it considers existing design margins to The GAO Report states:

be adequate. According to NRC officials, the safety-related systems, struct2res, and components, for the initial 40-year license term, are designed to comply with the national consensus codes and standads of organizations such as the American Society of Mechanical Engineers. The codes and standards normally provide for design _ margin against failures ' GAO/RCED-91-207 at 6-7, As a further basis for its contention, Petitioner cites LER 1-92-009 00, Unit 1, July 27,1992, concerning leakage from chemival and volume control system (CVCS) diaphragm valve CVCS-1-547, caused by thermally-induced premature degradation of the valve diaphragm, and LER l-92-006-00, Unit 1, August 6,1992, concerning corrosion of piping associated with diesel fuel oil and fire suppression system carbon dioxide lines, Supplement at 26-27. Neither LER supports Petitioner's contention, As stated in f

vennont rankee,31 NRC at 106-07:

l Licensee's second objection, that regarding lack of " basis" alone, hinges upon the notion that the State's list is simply a list of things that wear out, and that suct a list ignores the fact that the phenomena operate unifortitly over the plant's lifetime. Thus a program that pro'.ects against wearout until 20007 will work until 2012 also. This, too, is correct in our view."

Penoner also cites an article in Five Cities Times-Press-Recorder, a local newspaper. Supplement at 27, Exhibit A. However, there is no indication that any of w-w w

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_ _ _ the conditions addressed in the article is related to age-related degradation, even if 9

newspaper articles could provide the basis for a contention'."

Petitioner offers a quotation from a speech of NRC Commissioner Rogers as support for its statement that " age-related deterioration of equipment can result in accidents involving multiple failures of equipment and other accidents that are more severe than the safety systems were designed to mitigate." Supplement at 27. The reference is to a speech entitled " Nuclear Power Plant Aging: The U.S Regulatory Perspective," presented at the International Symposium on Nuclear Power Plant Aging in Bethesda, Maryland, on August 30,1988. Although it is not entirely clear from the out-of-context excerpts set fonh by Petitioner, Commissioner Rogers was addressing common. mode failure, specifically common mode failure of steam generator tubes for plants licensed fer 40 years. Speech at 2. Commissioner Rogers indicated in his speech that aging is manageable. He diseuned a variety of measures for managing aging, including continuous or periodic monitonng, visual and non-visual inspections of

=..ponents and periodic functional testing of equipment. Speech at 3. Commissioner T

Rogers concluded his remarks by expressing his confidence that the management of aging would get better and better in the years ahead. Speech at 8. Commissioner Rogers's speech does not lend any support to Petitioner's basis for its Contention IV.

" As set forth in the Staff's discussion of Contention V, citations to material upon which Petitioner would be unable to rely in a hearing (such as inadmissible hearsay) cannot provide the basis of a contention.10 C.F.R. 6 2.714(b)(2)(ii). Thus, Petitioner's citation to a pamphlet called "Mythbusters" (Supplement at 26), to show embrittlemer.;

of Diablo Canyon's reactor vessel at some future time, cannot provide a basis for proposed Contention IV.

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1 Contention IV lacks a basis. As discussed above, it seems to be dirated to

.1 license renewal, (see 10 C.F.R. Part 54), as opposed to CP recapture. Cc.itention IV should no: be admitted.

Centention V: Thermo 4 ag Contention V states:

It is the contention of the San Luis Obis-Mothers for Peace that the Thermo-Lag material. ails as a fire barriel

.d, in fact, poses a bazard in the e. vent of a fire or an earthquake. Until this situation is adequately resolved, the license for Diablo Canyon Nuclear Power Plant certainly should not be extended.

As a basis for tiie contention, Petitioner asserts that Thermo-Lag is installed at Diab'o Canyon and ofiers an article from the San Francisco Chronicle of October 19, 1992, as documentation that Thermo-Lag' rigid properties could cause it to crack violently and crumble in an earthquake shearing cables and that Thermo-12g is capable of buming. Supplement at 28-29, Exhibit B. The a :icle cited by Petition-r also asserts that PG&E, in response to NRC's requirement that plants take compensatory measures pending a resolution of the problem, has been using human observers to monitor, on an -

hourly basis, the custom made harriers and nine of the conduits where Thermo-lag is installed. Id."

" Petitioner also cite two NRC inspection reports and three PG&E LER's, for the proposition that " human observers are not completely reliable." Supplement at 29-30.

These citations lend no support to this Thermo-Lag contention. The inspection reports concern not human observers, but fire barriers. See Supplement at 30. The three LER's in which Licensee reported that it had missed a particular fire watch do not provide any.

basis from which it.cond be generally concluded that roving dedicated fire teams would not compensate for any risk caused by the limited use of Thermo-Lag at Diablo Canyon.

. ~

I The allegations regarding Thermo-Lag and Diablo Canyon cannot prcvide a basis for the admission of this contention. The basis is predicated on an anicle in the San Francisco Chronicle involving a purponed study by the Nuclear Information and f

Resource Information Service (NIRS) and statements of a Paul Gunthers (sic) of tha

[

organization concerning that study. See Supplement at 29 and Petitioner's Exhibit B.

First, the purported NIRS study reporting on a relationship between earthquakes and Thermo-Lag does not exist. See attached affidavit of Armando S. Masciantonio, dated November 30, 1992." Moreover, Petitioner's use of a hearsay statement of the type j

reported in the San Francisco Chrrenicle article cannot provide the basis for a contention under the Commission's regulations. Under 10 C.F.R. 6 2.714(b)(2)(ii), a contention must provide a concise statement of the facts or expert opinion "on which the petitioner intends to rely in proving the contention at the hearing." An unsubstantiated newspaper report o what might be contained in a study and third-party quotations regarding that r

study in a newspaper cannot be relied on in a hearing and, under 10 C.F.R. 5 2.714(b)(2), rnay nc? he used to previde the basis of a contentiot.. See 54 Fed. Reg.

33,168,33,170 71 (August 11,1990). If a study is re"ad on to support a contention, the study must be submitted sn i.at the Liceming Board can ascertain whether 'he study cratains sufficient content, authority and authenticity to support the contention. None of tam things can be ascertained from the newspaper article cited. In short, Pctitioner 4

provides no proper basis to show that Thermo-Lag presents a particular problem at

" If the Petitioner maintains that it has that study, thc Petitioner should produce it at the upcoming prehearing conference, in view of this affidavit.

30 -

Diablo Canyon because of the plant's location that could lead to the admission of this contention.

To provide a backgrcund for the consideration of this contention, the Staff provides the following information concerning Thermo Lag and its use at Diablo Canyon.

On June 24,1992, the NRC issued Bulletin No. 92-01: Failure of Thermo-Lag 330 Fire Barrier System to Maintain Cabling in Wide Cable Trays and Small Conduits Free from Fire Damage. The bulletin recited a history of failed fire endurance tests by Gulf State j

Utilities at River Bend and of subsequent indeterminate test results by Texas Utilitics at Comanche Peak. Bulletin at 12. The bulletin discussed NRC requirements regarding-4 fire protection and stated that because Thermo Lag installations on small conduit and wide cable trays did not provide the level of safety required by NRC regulations, licensees should determine which plant areas contained Thermo Lag nre barriers on small conduits and wide trays, and implement compensatory measures, such as fire watches, in accordance with plant procedures consistent with those that would be implemented by either plant technical specincations or an operating license condition for an inoperable fire barrier Bulletin at 3-4. The bulletin also asked licensees to provide within 30 days a written notification stating whether they had Thermo-Lag 330 fire barrier systems in their plants and whether they had taken the requested actions, and describing the measures they planned to take to restore fire barrier operability. Bulletin at 4 s

-PG&E responded to the bulletin by a letter of July 29,1992. PG&E stated that it did not use Thermo Lag to protect safe shutdown cabling ia wide cable trays at DCPP.

Response at 1. However, PG&E did have Thermo Lag fire barriers installed on small

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. I conduit between 1 and 4 inches diameter. Id. PGkE stated that as a conservative measure to augment the approved Appendix R Fire Protection Program, DCPP had maintained hourly fire wat:hes in effect since beginning commercial operation (except in the containment buildings and the Unit 1 and 2 intake structure) where DCPP credited Appendix R safe shutdown circuits. Response at 2. As interim compensatory measures in response to the bulletin, PG&E had expanded the scope of the fire watches to include the intake structure, and had veri 5ed that the fire areas where DCPP credited the use of Thermo-1.ag to protect Appendix R safe shutdown circuits had been covered by the hourly roving fire watches except in the containi.ient buildings and had operable fire detection and/or suppression equipment. Id. PG&E funher stated that it had reviewed the as-built conditions of the plant and had determined that the existing combination of hourly fire watches with detection and/or suppression capability would be more than adequate to ensure that safe shutdown capabilities remained available. Id. PG&E stated that nine of DCPP's 11 fire areas with Thermo-Lag systems protecting safe shutdown circuits were provided with automatic detection capability. Id. For the two areas where no detection capability was installed, automatie wet pipe sprinkler systems were provided.

Id.

On August 28,1992, the NRC issued Supplement I to NRC Bulletin No. 92-01, indicating that subsequent tests by Texas Utilities and the NRC had caused the NRC to expand the scope of its request to include all si7es of conduits and trays and to include walls, ceilings and equipment enclosures.

. On September 28,1992, PG&E responded to Revision 1, addressing the expanded scope set forth trerein. letter, Gregory M. Rueger, PG&E, to NRC, September 28,

)

1992. On October 27,1992, Harry Rood, Senior Project Manager, NRC, responded to fto Mr. Rueger's letter, indicating that its review of PG&E's response led the NRC S conclude that the intent of DCPP's technical specifications was met and that PG&E's selected method of providing fire protection / prevention was acceptable. Petitioner has M

not shown any basis for concluding that Licensec has not taken sufficient action to prevent any problems arising from its limited use of Thermo-Lag.

In addition, Petitioner provides no basis on which it could be concluded that any problem with Thermo 12g at Diablo Canyon would not be rendered moot for the CP recapture period of 2003 to 2025, since any needed action would be taken long before that time. Petitioner's Conter. tion V is not admissible for Petitioner offers no fact to show that PG&E is not in compliance with the NRC's regulations regarding fire protection or that Thermo-12g will create a risk in the CP recapture period, which is the subject matter of this proceeding.

Moreover, Petitioner has provided no basis for the contention, as it has not provided any fact, expert opinion or documentation to suppon its contention, as required by 10 C.F.R. 5 2.714(b)(2)(ii). Contention V cannot be admitted in this proceeding."

The NRC Staff does not agree with the statement in PG&E's Response at 36 that the Thermo-12g issue is not safety signiGeant. The safety significance of the issue led

a the issuance of a bulletin with a required response; howa.ver, the NRC did not require that any plants be shut down pending a resolution of the issue. The Staff does agree with PG&E that the issue lacks safety significance for Diablo Canyon.

33 Contention VI: Harardous Materials Contention VI states:

The San Luis Obispo Mothers for Peace contends that PG&E's inability to properly store and handle harardous materials is another indication of' the company's inadequate control programs and personnel. (Refer to Contentions I and II.) PG&E's violations of NRC regulations affects the health of its employees, the local environment, the integrity of safety-related equipment, and thus the safety of the general public. On this basis, PG&E's proposed license extension must be denied, in this contention, Petitioner argues that the Licensee has demonstrated an inability to properly store and hand!c hazardous materials. Supplement at 31. As supponing documentation, it cites the report of an inspection of occupational exposure during extended outages during September and October 1991.

Inspection Report Nos.

50-275/9129 and 50-323/9129 (November 29, 1991). That inspection resulted in a Notice of Violation involving the failute to label two containers of licensed material and the failure to post several radiation areas. The items listed in the violation notice, along with the inspectors' observations that two workers failed to perform whole body frisks after exiting a contaminated area and that chemical containers in the radiologically controlled area (RCA) had not been properly labeled, Id. at 611, comprise the basis for Petitioner's contention.

As explicitly stated in the inspection report, the purpose of the inspection was to evaluate the Licensee's occupational radiation protection program. The deficiencies that were found, therefore, are relevant only to the workers at the facility. Because Petitioner does not represent any of those workers, it does not have standing to litigate this

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34 contention. Florida Power & Light (St. Lucie Nuclear Power Plant, Units 1 and 2),

f l

CLI-89-21,30 NRC 325,329 (1989)."

While Petitioner attempts to cure this defect by alleging that the violations affect "the local environment, the integrity of safety-related equipment, and thus the safety of the general publ!c," Supplement at 31, it provides absolutely no basis for that conclusion.

There is simply no reason to believe that the failure of the Licensee to properly label two containers and to post radiation areas wiil affect the integrity of safety related equipment in such a manner as to endanger the safety of the general public. Thus, no basis appears for the admission of Contention VI.

Contention VII: Radioactive Waste Storage Contention VII states:

The San Luis Obispo Mothers for Peace contends that the proposal to extend the operating life of the Diablo Canyon Nuclear Power Plant for an additional 15 years must be denied because of the unsolved problem of radioactive waste storage and disposal.

" In Florida Power a Light Co., a petitioner for intervention was found not to have standing where the issue sought to be raised concemed protection of workers in the plant, not protection of the general public. The petitioner was not a worker at the plant and did not allege an " injury in fact" that he would suffer as a result of the decision therein.

Moreover, the petitioner must himself fulfill the requirement for standing; he may not derive standing from the interests of another per:on or organization, Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470,7 NRC 473,474-75 & n.1 (1978); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418,1421 & n.4 (1977), or represent them without express authorization.

Houston Lighting and Power Co, (Allens Creek Nuclear Generating Station, Unit 1).

ALAB 535, 9 NRC 377, 394-400 (1979). Thus, absent some express authorization, the petitioner there, as here, could not be allowed to represent employees in the plant.

St. Lucie, CLI 89 21,30 NRC 325,329 (1989).

I

\\

l l As basis for its contention, Petitioner speculates regarding when and whether the DOE will be able to remove and dispose of the spent fuel now stored at the nation's reactors. Supplement at 35 38. Thus, the contention is a generic one. The situation that

' it addresses has been considered by the Commission in its Waste Confidence rulemaking from which derives the waste confidence nile. That regulation is set forth in !0 C.F.R.

6 51.23, where the Commission states:

(a) The Commission has made a generic determination that, if necessary, spent fuel generated in any reactor can be stored safely and without significant en'ironmental impacts for at least 30 years beyond the licensed life for operation (which may include the term for a revised or renewed license) of that reactor at its spent fuel storage basin or at either onsite or offsite spent fuel storage installations.

See also 10 C.F.R. % 51.53(a); Vennant l'ankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP 90-6, 31 NRC 85,107-110 (1990); Vennont l'ankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-17,25 NRC 838 (1987), rev'd in pan on other grounds ALAB 869,26 NRC 13 (1987).

The Commission's regulations are subject to attack ir. Commission adjudicatory proceedings only as provided in 10 C.F.R. 5 2.758. Thus, Petitioner may not raise these concems by way of a contention in this proceeding.

As regards Petitioner's concerns about llumboldt Bay, those concerns are irrelevant to Diablo Canyon and to the instant proceeding. To the extent that Petitioner has concerns about the current operation of Diablo Canyon, thosc concerns are properly raised in a petition pursuant to 10 C.F.R. I 2.206. As discussed above, Contention VII is inadmissible as a matter of law.

i

1

' Contention VIII: Emergency PrePAtedntH Contention Vill states:

The emergency preparedness program for Diablo Canyon Nuclear Power Plant is inadequate to protect public health and safety. The San Luis Obispo biothers for Peace contends that until this program is revised and improved, PG&E's request for a license extension cannot be considered.

As basis for the contention, Petitioner alleges that during the 1991 Annual Offsite Emergency Preparedness Exercise a number of weaknesses were identified in the NRC inspection report (1.R. 50-275/91-15 and 50-323/91-15), and a number of areas requiring corrective action were identified in the FEhiA Exercise Evaluation (FEhiA Exercise Evaluation Report. August 22,1991). Petitioner further alleges that a number of weaknesses were also identined during the 1992 annual onsite emergency preparedness exercise (1.R. 50-275/92-15 and 50-323/92-15).

Petitioner fails to allege any connection between this emergency planning contention and the proposed CP recapture amendment. No change in emergency plans has been proposed and the amendment does not affect those plans. The contention must be rejected as it is not germane to this proceeding.

hioreover, in order to be litigable in any proceeding, contentions concerning emergency planning exercises must allege that the exercise revealed a fundamental flaw in the emergency plan, which is defined as a failure of an essential element of the plan that can only be corrected through a significant revision of the plan itself. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499, 505-06 (1988). Under this standard, minor or isolated problems on the day of the

37 exercise do not constitute fundamental flaws in the emergency plan. Id. at 505. See also, Public Senice Co. of New IlampshIrc (Seabrook Station, Units 1 and 2),

ALAB-947,33 NRC 299,344,375 (1991).

Petitioner states, as a basis for its contention, that Inspection Report Nos.

50 275/91-15 and 50-323/91-15 (September 20, 1991) regarding the NRC onsite inspection during the 1991 Offsite emergency preparedness exercise found a weakness in PG&E's system for making protective recommendations (PARS), liowever, the overa',1 finding regarding the 1991 exercise was that Licensee's emergency preparedness program appeared adequate to protect the public health and saicty and the Licensee was found to be in compliance with NRC requirements within the areas examined during that inspection. Id. at 1. The one weakness noted regarding the system for making protective a: den ru.cmmNQtions was subsequently corrected in the 1992 exercise. This item (PARS) was reviewed during the 1992 exercise at the Emergency Operations Facility and it was concluded that the revised procedure, with proper irrplementation as was observed in the 1992 exercise, demonstrated that this item had been satisfactorily addressed by the Licensee. Inspection Report Nos. 50-275/9215 and 50-323/92-15 (August 3,1992) at 2.

Petitioner also provides as basis for its wntention examples of weaknesses identified during the 1992 onsite emergency preparedness exercise. Once again, the overall finding was that Licensee's emergency preparedness program appeared adequate to protect the public health and safety _ and Licensee was found to be in compliance with NRC requirements. Id. at 2.

._._.-.__.____.-m.___._

38 -

4 Petitioner also notes a number of Areas Requiring Corrective Actions (ARCA's) and Areas Recommended for Improvement (ARFI's) identified by FEMA in the 1991 Offsite Emergency Preparedness Exercise as basis for their contention.

However, Petitioner has not advanced any rationale for concluding that those items are indicative of a pervasive breakdown of any essential element in the emergency preparedness program sufficient to constitute a fundamental flaw in the program. Each of these items has, in fact, been addressed by San Luis Obispo County officials concerned with.

emergency preparedness and, as stated above, these areas for corrective action will be inspected during the next regularly scheduled biennial exercise.

FEMA Exercise Evaluation, Attachment D.

Thus, Petitioner has failed to provide a basis for admission of a contention on emergency preparedness exercises. Petitioner has made no attempt to relate the proposed amendment to emergency planning. Nor is there any basis for the contention, as Petitioner has not offered a basis for concluding that there is a fundamental flaw in the emergency plan. The contention is inadmissible.

Contention IX: Emergenev Preparedness and Earthauakes Contention IX states:

The emergency preparedness program for Diablo Canyon Nuclear Power Plant is inadequate to protect public Sealth and safety. during an earthquake. The importance of an effective program was demonstrated recently by the lack of an adequate response to the effects of Hurricane -

Andrew in Florida, 4.

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Petitioner requests assurance that, in the event of an earthquake in the area surrounding the Diablo Canyon plant, the roads and bridges will function effectively 1

during an evacuation. Supplement at 42. It contends that the emergency plan lacks specincity in determining how the roads, bridges and other evacuation routes within the evacuation zone will function in the event of an earthquake or tsunami (tidal wave or submarine earth movement). Furthermore, it claims that the emergency preparedness plan for Diablo Canyon is defective, as it fails to consider the unique and safety-signincant characteristic of earthquakes (i.e., their suddenness). Supplement at 42-43.

When Diablo Canyon was originally licensed, the Commission determined that the specine issues that Petitioner is seeking to raise could not be litigated by the Petitioner.

See CLI 84-12,20 NRC 249 (1984); CLI 8413,20 NRC 267 (1984); San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir.1984), reh'g granted, 760 F.2d 1320 (D.C. Cir.1985), qg'd,789 F.2d 26 (D.C. Cir.1986), cen, denied, 479 U.S. 923 (1986).

The established doctrines of collateral estoppel and resfudicata prevent relitigation of issues decided agaisst Petitioner in previous licensing decisions concerning Diablo Canyon. These doctrines of repose estop relitigation ofissues oflaw or fact which have been adjudicated. See Toledo Edison Co. (Davis Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-378, 5 NRC 557 (1977); Commonwealth Edison Co. '(Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11,21-NRC 609,620 (1985), rev'd and -

remanded on other grounds, CL1-86-8,23 NRC 241 (1986); Public Serv. Electric & Gas L

Co. (Hope Creek Generating Station, Unit 1), ALAB-759,.19 NRC 13,25 n.40 (1984);

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Southern Cal {fornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

ALAB-673,15 NRC 688,695 (1982); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182,7 AEC 210, remanded on other grounds, CLI-74-12, 7 AEC 203 (1974).

i Accordingly, Contention IX is not admissible in this proceeding.

Contention X: No Sicnificant Hazards Cor'sidnatina 4

Contention X states:

The San Luis Obispo Mothers for Peace believes that PG&E is not justified in the.r request to extend their operating license for Diablo Canyon Nuclear Power Plant.

As basis for Contention X, Petitioner invokes the Commission's regulations in 10 C.F.R. I 50.92 regarding whether there is a significant hazards consideration involved in the granting of an amendment. Section 50.91 requires a licensee requesting an amendment to provide its analysis about the issue of no significant hazards consideration.

But this analysis is not used to determine whether the requested amendment is granted.

Rather, it is used to determine whether any hearing on the proposal must take place before the amendment is granted or whether the NRC Staif may grant the amendment prior to the conduct of any hearing. The Staff's proposed determination of no significant hazards consideration may not be considered in an adjudicatory proceeding, as 10 C.F.R, 1

i 50.58(b)(6) explicitly states:

(6) No petition or other request for review of or hearing on the staff's significant hazards consideration determination will be entertained by the Commission. The *.aff's determination is final, subject only to the 4

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Commission's discretion, on its own initiative, to review the determination.

Thus, Contention X is not admissible in this proceeding. See Vennont Yankee, 31 NRC at 90-91; Venno.~. Yankee,25 NRC 838 (1987), rev'd in part on other grounds ALAB-869, 26 NRC 13 (1987); Pac (fic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL186-12,24 NRC 1, 6 n. 3 (1986), rev'd in part on other grounds, Sar. Luis Obisps Mothersfor Peace v. NRC,199 F.2d 1268 (9th Cir.1986).

Contention XI: N_ EPA Contention XI states:

The San Luis Obispo Mothers for Peace contends that before permitting the extension of PG&E's license for the Diablo Canyon Nuclear Power Plant, PG&E must weigh the costs and benefits of continued operation of the plan - as required by the National Environmentai Policy Act (NEPA) 42 USC 4332.

Petitioner alleges that an environmental impact statement must be prepared and that it will show that the cost of continued operation of Diablo Canyon will outweigh its benefits. Supplement at 45-46.

It has been held that the issuance of a CP recapture amendment does not require the preparation of an environmental impact statement. Vennont rankee,31 NRC 85 at 96-97 (1990). The Commission's regulations in 10 C.F.R. 6 51.20(b) list the types of actions requiring the preparation of an environmentalimpact statement, Amendment of an operating license to allow for recapture of the time required to construct the facility and to allow operation for a full forty years, as contemplated by 10 C.F.R. 6 50.51, is L

~ 42 -

not listed as one of these actions.

For actions not requiring an EIS pursuant to i 51.20(b) or not categorically excluded by 6 51.22(c),10 C.F.R. 6 51.21 requires an environmental assessment. Thus, an environmental assessment is all that is required by the Commission's regulations for an action such as the one proposed here. Vernmnt rankcc, 31 NRC at 97.

Once the environmental assessment has been completed, the regulations in 10 C.F.R. I 51.31 specify that the appropriate NRC staff director will determine whether to prepare an environmental impact statement. As the Board noted in Vennon/ Yankce, 31 NRC at 97, any claim that an EIS is needed must be supponed by a statement regarding the environmental consequences of the action that the Petitioner believes should be addressed in such a statement. Accordingly, it is incumbent upon the Petitioner to provide a basis for concluding that an EIS should be prepared in connection with the Staff's review of this recapture application. Id. at 98. Because Petitioner has failed to provide any rationale reaching such a conclusion, the contention must be rejected."

1

" Petitioner also seeks to raise need for power issues.

Supplement at 47-49.

However, these issues are ' proscribed by the Commission's regulations in OL proceedings.10 C.F.R. 66 St.53(a),51.95(a),51.106(c)." Vennont Yankee,31 NRC at 95.

Similarly, issues involving utility rates may not be considered in NRC l

proceedings.

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i CONCLUSION As discussed above, Petitioner's August 18, 1992, letter petition requesting a hearing as supplemented by its Supplement to Petition to Intervene, dated October 26, 1992, does not satisfy the Commission's requirements for intervention as set forth in f

10 C.F.R. I 2.714. Accordingly, Petitioner's request should be denied.

Respectfully submitted, G

I4AA-oc e,( c i o Ann P. liodgdon e

Counsel for NRC Staff yl

$ Yk Lisa B. Clark Counsel for NR, Staff C

5 ItMh gcuSf3 Arlene A. Jorgensen Counsel for NRC Staff Dated at Rxkville, Maryland this 30th day of November,1992 i

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