ML022120027

Response of Duke Energy Corporation to July 15, 2002 Licensing Board Order

ML022120027
Person / Time
Site:	Mcguire, Catawba, McGuire
Issue date:	07/22/2002
From:	Cottingham A, Repka D Duke Energy Corp, Winston & Strawn
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
+adjud/rulemjr200506, 50-369-LR, 50-370-LR, 50-413-LR, 50-414-LR, ASLBP 02-794-01-LR, RAS 4701
Download: ML022120027 (24)

Text

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July 22, 2002 DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION July 30, 2002 (11:55AM)

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of

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DUKE ENERGY CORPORATION

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Docket Nos. 50-369-LR

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50-370-LR (McGuire Nuclear Station,

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50-413-LR Units 1 and 2, and

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50-414-LR Catawba Nuclear Station, Units 1 and 2)

RESPONSE OF DUKE ENERGY CORPORATION TO JULY 15, 2002 LICENSING BOARD ORDER On July 15, 2002, the Atomic Safety and Licensing Board issued an Order requesting further written discussion of several issues.1 Duke Energy Corporation ("Duke")

herein responds to the Order and addresses the matters identified for further discussion.

Consistent with the Licensing Board's Order, item 3, Duke has limited its discussion to the stated issues and is not arguing matters previously argued except as necessary to establish context.

Other matters directly germane to the timeliness and admissibility of the Intervenors' proposed late-filed amended contentions are discussed in Duke's filing of June 10, 2002.2 As addressed Order (Addressing the Reconvening of Telephone Conference on Late-Filed Amendments to Petitioners' Contention 2 and Matters To Be Addressed Prior to and at Conference), July 15, 2002.

2 "Response of Duke Energy Corporation to Proposed Late-Filed Contentions," June 10, 2002 ("Duke Response").

e'lnpla t cy a 1

there, the proposed amended contentions should not be accepted for litigation and the previously admitted Consolidated Contention 2 should be dismissed as moot. 3

a.

The relevance of GSI-189 in this proceeding, in light of the Commission's Memorandum and Order in the matter of Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 345 (1999) and any other pertinent authority.

As discussed in the Duke Response (at 8-10), the Intervenors in this Part 54 license renewal proceeding may not litigate the ultimate resolution of the technical issue raised in NUREG/CR-6427 -

i.e., the potential vulnerability of ice condenser plants such as McGuire and Catawba with respect to early containment failure due to hydrogen combustion events. The first reason this is so is that this technical issue is being addressed generically for all affected plants as part of Generic Safety Issue 189 ("GSI-189").

GSI-189 specifically involves the assessment of whether ice condenser plants should be required -

during the current license term

-- to backfit equipment or procedures to provide power to hydrogen igniters and/or air return fans in the event of a station blackout.

In the Oconee decision cited by the Licensing Board, the petitioners had sought admission of a proposed contention which alleged that the license renewal Environmental Report for Oconee was defective because it failed to address the onsite storage of spent nuclear fuel and the availability of other storage sites for high-level radioactive waste ("HLW"), including the status and capacity of the "current spent fuel storage facility," as well as the transportation and To the extent necessary, Duke moves the Licensing Board to dismiss Consolidated Contention 2 for mootness. Based on the discussion during the July 10, 2002 Telephone Conference (Tr. 957-960), it appears that, procedurally, no such motion is now required to reach the requested result.

The second independent reason is discussed in response to item b, below.

2

ultimate disposal of Oconee spent fuel. 5 The licensing board in that case rejected this proposed contention. 6 In affirming, the Commission noted that, with one exception, the petitioners' concerns in this proposed contention were "already addressed generically by Commission regulation, and Duke Energy therefore did not have to provide a plant-specific discussion of these items in its environmental report." 7 Although the remaining subject of this proposed contention -

the transportation of high-level radioactive waste to a repository site -

was not addressed in NRC rules at the time the contention was filed or at the time the Oconee decision was issued, the Commission nevertheless ruled that:

... the Licensing Board correctly found that the transportation of spent fuel rods to an offsite repository is not an appropriate subject for a contention because it is the subject of a pending rulemaking. It has long been agency policy that Licensing Boards 'should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission.' See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2),

ALAB-218, 8 AEC 79, 85 (1974); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 86 (1985); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Instailation), LBP-98-7, 47 NRC 142, 179 (1998).

CLI-99-11, 49 NRC at 345 (emphasis in original). By this reference to a "pending rulemaking,"

the Commission was alluding to the fact that it had directed the NRC Staff in a January 13, 1998 Staff Requirements Memorandum to proceed with a rulemaking to amend 10 C.F.R.

See Duke Energv Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 343 (1999).

6 See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), LBP-98-33, 48 NRC 381, 391-92 (1998).

Oconee, CLI-99-11, 49 NRC at 343.

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§ 51.53(c)(3)(ii)(M) to categorize the effects of transporting HLW as a "generically addressed Category I issue." 8 The Commission decision in the Oconee license renewal case is consistent with a number of earlier rulings by licensing boards and by the former Atomic Safety and Licensing Appeal Board.

This precedent collectively reflects the precept that the "consideration in adjudicatory proceedings of issues presently to be taken up by the Commission in rulemaking would be, to say the least, a wasteful duplication of effort."9 Moreover, complex issues that involve a number of plants and that are not "capable of simple resolution" are best addressed through rulemaking.' 0 The 1998 decision in the Private Fuel Storage licensing proceeding (cited by the Commission in its Oconee decision) sets forth a useful summary of earlier case law on this issue:

An adjudication is not the proper forum for challenging applicable statutory requirements or the basic structure of the agency's regulatory process. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20, aff'd in part on other grounds, CLI-74-32, 8 AEC 217 (1974). Similarly, a contention that attacks a Commission rule, or which seeks to litigate a matter that is, or clearly is about to become, the subject of a rulemaking, is inadmissible.

See 10 C.F.R. § 2.758; Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85, 89 (1974).

This includes contentions that advocate stricter requirements than agency rules impose or that otherwise seek to litigate a generic determination established by a Commission rulemaking. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-93-1, 37 A proposed rule was published in the Federal Register February 26, 1999; however, no final rule had been published at the time the Commission issued its decision on April 15, 1999.

See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974).

10 Id.

4

NRC 5, 29-30 (1993); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1656 (1982).11 In Douglas Point, the Appeal Board affirmed the dismissal of a proposed "generic" contention relating to the adverse environmental effects of the uranium fuel cycle.

Reflecting the policy basis for its decision, the Appeal Board found that the evaluation of the environmental consequences of the uranium fuel cycle "was not a matter capable of simple resolution," but necessarily involved broad, generic, and even industry-wide considerations, appropriate for generic consideration and rulemaking. 2 The Appeal Board further noted that, in another similarly-affected licensing proceeding, its ruling concerning the pendency of the Table S-3 rulemaking to address the generic issues surrounding the uranium fuel cycle had been "anticipative," since notice that the Commission was about to initiate a rulemaking to consider the environmental effects of the uranium fuel cycle did not appear until "a few months thereafter."

Id. 13 The Appeal Board did not hesitate to rule in that instance that its "consideration in adjudicatory proceedings of issues presently to be taken up by the Commission in rulemaking" would be a duplicative waste of time. Id. Therefore, as early as 1974, the NRC Appeal Board rejected proffered contentions in situations where agency rulemaking relating to those contentions was anticipated, as well as in situations where a rulemaking notice had been published. This is certainly consistent with the underlying policy of addressing complex generic issues through rulemaking and thereby avoiding duplicative effort and preserving resources.

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179 (1998) (additional citations omitted).

12 Douglas Point, ALAB-218, 8 AEC at 85.

13 The proceeding that the Appeal Board referred to involved the Vermont Yankee Power Station. See Vermont anikee Nuclear Power Corp. (Vermont Yankee Power Station),

ALAB-56, 4 AEC 930 (1972), petition for review of final decision, ALAB-179, 7 AEC 159 (1974).

5

GSI-189 is an outgrowth of the NRC's ongoing effort to risk-inform 10 C.F.R.

§ 50.44, "Standards for Combustible Gas Control System in Light-Water-Cooled Power Reactors." The hydrogen control regulation is already being addressed by a specific proposal to amend the regulation.14 GSI-189 now focuses on the issue of the adequacy of power supplied to igniter systems installed in PWR ice condenser and BWR Mark III containments.15 These systems consist of AC-powered igniters intended to initiate burning of combustible gasses.

During postulated station blackout events in which neither preferred AC nor backup AC power provided by the emergency diesel generators would be available, the igniters would not function and containment integrity could be challenged.

Proposed system enhancements include the addition of backup power to igniters.' 6 In this context, the NRC is also considering whether modifications are needed to provide backup power to air-return fans to provide effective hydrogen control in station blackout sequences.'7 The analysis of GSI-189 mirrors precisely the analysis begun in the evaluation of severe accident mitigation alternatives ("SAMAs").

In the NRC Staff's recent technical 14 SECY-02-0080, "Proposed Rulemaking-Risk-Informed 10 C.F.R. 50.44, 'Combustible Gas Control in Containment' (WITS 20010003)," May 13, 2002, and Attachment 2 (Regulatory Analysis for 50.44) to that SECY paper, contain a chronology of the NRC's decision to risk-inform Section 50.44 by means of a rulemaking (currently ongoing), and the closely related history of GSI-189 as it evolved out of the NRC's activities relating to 10 C.F.R. § 50.44.

15 See May 13, 2002 Memorandum from F. Eltawila, NRC Office of Nuclear Regulatory Research, to J. Larkins, ACRS, re "RES Proposed Recommendation for Resolving Generic Safety Issue 189: 'Susceptibility of Ice Condenser and Mark III Conai'nments to Early Failure from Hydrogen Combustion during a Severe Accident,"' at I ("Eltawila Memo").

16 Id. As noted in the Eltawila Memo, this is a mitigative fix that does not affect either the frequency of station blackout events or core damage frequency.

17 Eltawila Memo, at 2; see Duke Response at 53, n. 98 and n. 99.

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assessment of GSI-189, it specifically considered quantifying the reduction in the conditional containment failure probability with igniters being available during station blackout events. The reduction in probability was converted to a dollar value for averted offsite property damage and public risk, and compared against the overall cost of implementing and maintaining the igniter system enhancement, to determine whether there is a potential cost-beneficial backfit. The NRC also performed an independent cost analysis to determine the cost of implementing other potential enhancements. 18 As part of this review, the NRC Staff also considered Duke's license renewal SAMA analyses for McGuire and Catawba, which included consideration of an alternate power supply for the igniter system to address station blackout sequences.

The NRC Staff concluded that this option may be cost-beneficial under certain assumptions, which are therefore being examined in connection with the resolution of the GSI.19 The NRC Office of Nuclear Regulatory Research ("RES") has stated that, since the NRC Staff has developed a technical basis for resolving GSI-189, the issue "can quickly move forward," and that "[s]ince the proposed mitigative enhancement passes the back-fit cost beneficial test... further regulatory action is warranted."20 The Chairman of the Advisory Committee on Reactor Safeguards ("ACRS") has indicated interest in reviewing additional RES analysis results and "the proposed RES recommendation to NRR for resolving GSI-189." 21 Even is Eltawila Memo, at 1-2.

19 Id. at 2. Further, the NRC Staff explicitly found that the SAMA analysis "did not relate to adequately managing the effects of aging during the period of extended operation and need not be implemented as part of license renewal" under 10 C.F.R. Part 54. Id.

20 Eltawila Memo, at 1, 4.

21 See June 17, 2002 Memorandum from G. Apostolakis, ACRS, to W. Travers, Executive Director for Operations, re "Recommendations Proposed By The Office Of Nuclear Regulatory Research For Resolving Generic Safety Issue-189, 'Susceptibility Of Ice 7

more recently, the Commission directed the NRC staff to "move toward resolution of Generic Issue 189 concerning the need for additional measures to ensure a reliable power supply for hydrogen igniters in PWR ice condenser and BWR Mark III containments in a timely fashion."22 Accordingly, the issues identified by the Intervenors for further review are being addressed in GSI-189. To paraphrase Douglas Point, GSI-189 involves generic technical issues that are not capable of a simple resolution. Given the treatment of GSI-189 to date by both the NRC Staff and the Commission, it is quite clear that the agency is addressing the topic as a generic matter, subject to a rulemaking if the agency determines that such action is justified and meets the NRC's backfit rule, 10 C.F.R. § 50.109. Therefore, this matter is within the scope of the 1999 Oconee decision and related precedent. Echoing the Commission's decision there, it would be counterproductive and contrary to longstanding agency policy and precedent to initiate litigation on matters that are best resolved generically. The Licens:ng Board should not allow the Intervenors in this proceeding to litigate Consolidated Contention 2 or the late-filed proposed amended contentions to the extent that they are based upon, or otherwise involve, the issues being addressed in GSI-189.

b.

Does the fact that station blackout provisions are part of the current licensing basis preclude their consideration in a severe accident mitigation alternative analysis contention (supported by any pertinent case law or other authority)?

This question was first discussed during the Telephone Conference in the context of proposed amended Contention 3, which involves station blackout frequency. See Tr. 996 1009. Similar questions were also raised in connection with proposed amended Contention 4, Condenser And Mark III Containments To Early Failure From Hydrogen Combustion During A Severe Accident,"' at 3.

22 See Staff Requirements Memorandum to the Executive Director for Operations re "Staff Requirements-SECY-02-0080-Proposed Rulemaking -Risk-Informed 10 C.F.R. 50.44,

'Combustible Gas Control in Containment"' (June 27, 2002).

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although the direct issue in that amended contention is the amount of hydrogen assumed rathe, than station blackout frequency. While a topic that relates to the current licensing basis ("CLB")

may be germane to a license renewal SAMA contention and may -

theoretica!ly -

be addressed in the SAMA context, the admissibility of such a matter ultimately turns on (in addition to timeliness): what issue is raised, what basis is provided, and what relief is requested.

Given the way that station blackout frequency is in fact raised in proposed amended Contention 3, the issue cannot be addressed under the rubric of a SAMA evaluation. A similar conclusion applies to the hydrogen control issue raised in proposed amended Contention 4.

To address the Licensing Board's general question, it is important to first recognize the fundamental principle that the CLB is not subject to either questioning or challenge in a Part 54 license renewal proceeding -

either directly in a contention arguing that the plant design is inadequate or indirectly in the guise of a SAMA issue.

In promulgating the final license renewal rule, the Commission unequivocally stated that:

issues that are relevant to current plant operation will be addressed by the existing regulatory process within the present license term rather than deferred until the time of license renewal.

60 Fed. Reg. 22,461, 22,463-64 (May 8, 1995).

The Commission further explained that it premised its license renewal rule on two principles. The first is directly relevant to the Licensing Board's question:

The first principle of license renewal was that, with the exception of age related degradation unique to license renewal and possibly a few other issues related to safety only during the period of extended operation of nuclear power plants, the [Part 50] regulatory process is adequate to ensure that the licensing bases of all current operating plants provides and maintains an acceptable level of safety so that operation will not be inimical to public health and safety or common defense and security.

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k/. at 22,464. Consequently, a challenge to the current licensing basis is not an appropriate license renewal (Part 54) issue. Such a challenge must be addressed within the NRC's Part 50 processes separate from the license renewal process. See 10 C.F.R. § 54.30.23 Any change to the CLB during the current license term would need to be evaluated through Part 50 procedures and justified by the NRC in accordance with the backfit rule, 10 C.F.R. § 50.109. Accordingly, a contention challenging station blackout frequency and the adequacy of measures to address station blackout clearly could not be admitted in a license renewal proceeding.

The same conclusion applies to issues related to the adequacy of the CLB with respect to hydrogen control.

These are not matters for a license renewal hearing. This fundamental license renewal principle exists completely separate and independent from the bar to litigation of generic issues such as GSI-189, discussed above.

The Licensing Board, in effect, questions whether this general, fundamental principle of license renewal still applies if a matter raised in a contention "relates" to a SAMA analysis. 24 Indeed, Judge Young has indicated her understanding that: "even though something is current licensing basis, if it relates to a SAMA, it would be within the scope of the license renewal proceeding... " Tr. 1061. Duke's position is that this understanding, as broadly stated, 23 As also explained by the Commission, the NRC has specifically limited the scope of license renewal proceedings to matters uniquely relevant to the period of extended operation and to "plant systems, structures, and components (as delineated in 10 C.F.R. § 54.4) that will require an aging management review for the period of extended operations or are subject to an evaluation of time-limited aging analyses." Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998).

24 As discussed further below, one premise for the Licensing Board's question is not correct as it might apply to proposed amended Contention 3. Station blackout frequency, while material to a SAMA evaluation based on NUREG/CR-6427 data, is not genuinely at issue within the bounds of Consolidated Contention 2. It does not "relate to" the issue actually raised in Consolidated Contention 2. Neither NUREG/CR-6427 nor the Intervenors have provided a basis for a contention that Duke's SAMA analyses should use a station blackout frequency other than that inherent in Duke's Level I assessment.

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suggests a binary analysis (i.e., the issue either relates to a SAMA or not). Such an analytical approach is overly simplistic and not correct. The NRC's requirement for a SAMA evaluation does not open the current licensing basis to litigation under Part 54.

If it did, the SAMA evaluation requirement would swallow the fundamental limits carefully established by the Commission on the scope of Part 54 hearings.25 The Commission's regulations at 10 C.F.R. § 51.53(c)(3)(ii)(L) require a SAMA evaluation in a license renewal application.

Intervenors are, of course, free to challenge the completeness of a SAMA evaluation submitted in a license renewal environmental report. The Intervenors in this case did so in the original Consolidated Contention 2. Ultimately, however, such a challenge must be limited by both the very nature of a SAMA evaluation and the fundamental principle of license renewal, which mandates that contentions may not challenge the current licensing basis and that Intervenors cannot litigate present-day Part 50 operating issues.

A SAMA evaluation as required by the Commission's license renewal regulations is an assessment of severe accident risks and the benefits of potential mitigation alternatives.

As discussed in the Duke Response (at 11-13), the requirement for a SAMA evaluation gives rise solely to an obligation to perfoma a complete and reasonable evaluation; it does not compel specific action.

The relief of specific CLB changes is not available in a license renewal proceeding.

On the contrary, the sole relief available in the context of a Part 54 SAMA contention -

if some deficiency in the evaluation can be shown -

is further evaluation. The further evaluation must be evaluation necessary for informed decisionmaking on licene renewal.

A SAMA evaluation cannot be inflated to a degree that it would duplicate or repla,-f Part 50 25 Stated conversely, the fundamental license renewal principle must, by definition, positively and necessarily limit the scope of SAMA contentions. It is the "first principle" of license renewal.

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processes for evaluating the need for, or developing, specific CLB changes.

A prcposed contention effectively seeking such an evaluation cannot be admitted.

Accordingly, unless there is an equipment aging issue within the scope of 10 C.F.R. § 54.21, the ultimate resolution of a potential for a CLB change identified through the SAMA evaluation will be a Part 50 CLB issue to be resolved through normal regulatory processes, not a Part 54 issue to be addressed in the license renewal review. The resolution of the issue therefore remains beyond the limits of a license renewal proceeding. If a contention does not challenge the adequacy of the SAMA evaluation, but in fact goes to the technical resolution of a CLB issue, it is beyond the scope of a license renewal proceeding -

even if the contention raises a matter that "relates to a SAMA."

Likewise, if a contention seeks further evaluation that is in reality beyond the scope of the SAMA evaluation requirement, and that extends to further assessment of the benefits and costs of CLB changes such that it crosses the line where it in reality would be an evaluation of the CLB issue, no further relief can be provided in a license renewal case. See, e.g., 10 C.F.R. § 2.714(d)(2)(ii). 26 The Intervenors in the present case have not raised a valid amended contention for further SAMA evaluation. Rather, even setting aside the lack of timeliness and basis for their proposed amended contentions,27 they raise matters that are beyond the scope of Consolidated Contention 2 and that are appropriately addressed as Part 50 CLB issues.28 26 To be admitted, a contention must also meet the specificity and basis requirements of 10 C.F.R. § 2.714(b).

27 See Tr. 967-68.

28 Stated another way, the Intervenors seek further SAMA evaluation where the NRC has already given them the most relief available -

the NRC is considering CLB changes.

Further SAMA evaluation would serve no further legitimate license renewal purpose.

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Consolidated Contention 2 -

the parent contention defining the scope of potentia1 amendments to the contention -

was that Duke had not considered in its original SAMA evaluation the severe accident vulnerabilities identified in NUREG/CR-6427 (an early containment failure risk dominated by hydrogen combustion events in a station blackout event).

In response to NRC Staff questions ("RAIs"), Duke submitted additional SAMA information that addressed precisely the point of the contention.

NUREG/CR-6427 had presented a simplified Level 2 probabilistic risk analysis ("PRA") of containment performance.

(The NUREG did not independently perform a Level I analysis. It adopted Level 1 information from Duke's Individual Plant Examinations ("IPE") for McGuire and Catawba, including an assumed station blackout frequency.)

Duke's supplemental SAMA analysis therefore incorporated the relevant NUREG/CR-6427 Level 2 containment failure data. Duke recalculated the risks of certain hydrogen combustion/station blackout events and the benefits of certain potential SAMAs (including backup power to hydrogen igniters and a dedicated transmission line). This evaluation is precisely the relief that was requested in Consolidated Contention 2 and the Intervenors have not asserted otherwise. Indeed, based on the contention, it is the full extent of the relief that could be granted.

Based on all of the SAMA information, the NRC Staff has published a draft Supplemental Environmental Impact Statement ("SEIS") for each station that includes consideration of SAMAs. See Duke Response, at 9 n. 19. The Staff has concluded, for McGuire and Catawba, that certain plant or procedure modifications inay be cost-beneficial under certain assumptions. This conclusion is subject to further analysis in the context of GSI 189.

That analysis is not a license renewal issue.

It is a Part 50, CLB issue and -annot be litigated here.

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In proposed amended Contentions 3 and 4, the Intervenors (Dr. Lyman) are decidedly not arguing that Duke has not adequately incorporated the NUREG/CR-6427 Level 2 data. Rather, as is clear from both the text of the amendments and the Telephone Conference, the Intervenors and Dr. Lyman now are seeking to revise the issue away from the matter admitted (whether the SAMA evaluation incorporated the NUREG/CR-6427 Level 2 containment performance data) to further question other inputs to the SAMA evaluation. In effect, they seek to raise Level 1 PRA matters and to explore in the SAMA evaluation context the very issues that are being evaluated as part of the Part 50 technical evaluation.

The Intervenors, in the guise of a SAMA evaluation, want to expand the original contention and litigate the complete analysis of the risk benefits of potential CLB changes -

precisely as is being considered by the NRC in the Part 50 context.

In the context of proposed amended Contention 3, the Intervenors are not arguing that NUREG/CR-6427 Level 2 information is not adopted in the RAI responses. Rather, Dr.

Lyman seeks to consider and document station blackout frequency, and to require Duke to justify, quantitatively, its Level I PRA assumptions versus IPE and NUREG/CR-6427 station blackout frequency assumptions. See Tr. 1005-06. There is no affirmative basis even offered by the Intervenors to challenge the station blackout frequency used in Duke's Level I evaluations (based on updated PRA information). See Duke Response, at 27-29. Indeed, the NUREG itself (the basis for the parent contention) certainly did not raise any issue related to staton blackout frequency in Duke's SAMA evaluation.

But setting the lack of basis ac:ice, 'he argument exceeds both the scope of Consolidated Contention 2 and the scope of a SAMA evalhation. At best, it is a baseless attempt to expand this license renewal proceeding to explore Part 50 station blackout issues and the technical issue of what CLB modifications should be made to address the 14

NUREG/CR-6427 issue. The argument therefore now exceeds the scope of a legitimate question on a SAMA evaluation. Proposed Amended Contention 3 does not genuinely assert that there is some aspect of the NUREG/CR-6427 Level 2 analysis that has not been addressed by Duke in the revised SAMA analysis, and therefore does not genuinely challenge Duke's conclusion that the umbrella contention is moot.

With respect to proposed amended Contention 4, it is again clear that the Intervenors do not assert that Duke has not addressed NUREG/CR-6427.

This proposed amended contention does not allege that Duke has not incorporated the NUREG Level 2 data into revised SAMA calculations. Cf Tr. 1038-40. Contention 4 instead argues that Duke has not "justified" differences between its original SAMA assumptions and results (based on Duke PRA containment performance data) and the revised SAMA assumptions and results (based on the NUREG/CR-6427 containment performance data).

Furthermore, it is evident from the Telephone Conference that Dr. Lyman -

contrary to the entire thrust of the original contention is no longer even arguing that NUREG/CR-6427 data is "technically superior" and should form the basis for the SAMA evaluations. Rather, he is arguing that the NUREG may or may not be superior (he doesn't know). See Tr. 1014, 1041. Dr. Lyman would now like to explore the "open technical issues" related to hydrogen ignition and potential plant modifications. See, e.g., Tr. 1014-15. He does not raise a genuine dispute as to whether Consolidated Contention 2 has been satisfied.

Dr. Lyman is instead attempting to directly engage the Part 50 current licensing basis issue rather than the issue of whether Duke's revised SAMA information addresses NUREG/CR-6427.2 This argument exceeds both the scope of Consolidated 29 As with proposed amended Contention 3, this amended contention also lacks basis. The primary difference between the Duke Level 2 PRA and the NUREG/CR-6427 simplified Level 2 PRA identified by Dr. Lyman for exploration relates to the amounL of hydrogen 15

Contention 2 and the scope of a legitimate SAMA evaluation contention. It seeks to use this Part 54 forum as a platform to address Part 50 CLB matters already being evaluated in the Part 50 context (specifically, as the resolution of GSI-189).

In sum, Duke has already provided, in the original Environmental Reports and in the RAl responses, two SAMA evaluations -

the first being its best judgment based on its current McGuire and Catawba PRA Level 2 analyses and the second incorporating the NUREG/CR-6427 Level 2 data in an effort to be directly responsive to the RAIs. The NRC Staff has, in the draft SEIS, drawn conservative conclusions that certain plant changes may be cost beneficial, subject to further review. This issue is not an equipment aging issue. Accordingly, it will be evaluated as a current licensing basis matter -

and all the issues Dr. Lyman would like to address are appropriately raised in that Part 50 context. With respect to the SAMA evaluation in the context of Part 54 license renewal, no further fine-tuning of tl.e cost-benefit evaluation is necessary. The purpose of a SAMA evaluation is to assess whether any SAMAs may be cost beneficial. The SAMA evaluation has therefore served its purpose. No further justification or reconciliation between the two SAMA assessments is needed.

No "final" word on the cost benefit of plant modifications is necessary or appropriate in a Part 54 review.

The SAMA requirement has been fulfilled and the NRC Staff has moved the issue out of Part 54 to the assumed to be generated in containment. Duke's explanation of the hydrogen assumption is provided in the RAI responses (RAI response 3.c) and Dr. Lyman has not provided an affirmative basis to challenge that explanation. However, perhaps more importantly in the context of Consolidated Contention 2, the NUREG/CR-6427 hydrogen assumptions are in any event inherent in the simplified Level 2 analysis presented in that document.

Therefore, providing exactly the relief requested in Consolidated Contention 2, Duke used the conservative NUREG/CR-6427 data (and the inherent conservative hydrogen assumptions) in its revised SAMA information. This had the effect of increasing (and perhaps overstating) the risk benefit of possible SAMAs.

An argument that those hydrogen assumptions are inadequate defies the basis for Consolidated Contention 2 and exceeds the scope of that contention.

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appropriate Part 50 processes.

No further relief can be granted in this license renewal proceeding.

It would simply be incorrect to conclude that, merely because Dr. Lyman has belatedly raised matters that "relate to" a SAMA, those matters are within the scope of this license renewal proceeding.

c.

Petitioners shall respond to legal arguments made by Duke and the Staff including those relating to the NEPA "hard look" doctrine.

This question is directed to the Petitioners and does not call for a response from Duke. However, for the reasons previously set forth in the Duke Response (at 11-13), and as discussed above, Duke and the NRC Staff have satisfied both the "hard look" doctrine of the National Environmental Policy Act ("NEPA") and the Commission's more specific requirement in 10 C.F.R. § 51.53(c)(3)(ii)(L) for a license renewal SAMA evaluation. Duke has provided two separate evaluations of the costs and benefits of SAMAs for McGuire and Catawba related to the issue identified in NUREG/CR-6427. The Intervenors have not challenged Duke's revised evaluation; rather, they now challenge in different ways whether NJREG/CR-6427 data (the basis for their original contention) is accurate. The SAMA evaluations submitted have allowed the NRC Staff to make a reasonable and informed decision on license renewal for McGuire and Catawba -

i.e., there is no equipment aging issue within the scope of Part 54. They have also enabled the NRC Staff to determine that it will further evaluate the NUREG/CR-6427 technical issue and potential plant modifications as a current Part 50 licensing basis issue. No reasonable argument can be made that the required "hard look" has not been undertaken. 30 30 In reviewing agency actions under NEPA, -[t]he role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Baltimore Gas & Electric Co.

v. Natural Res. Def Council, 462 U.S. 87, 97-98 (1983) (citing Citizens tc Preser-ve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17 (1971)).

In applying the "arbitrary and capricious" standard, "the reviewing court 'must consider whether the decision was 17

d.

The parties may address matters not previously addressed that relate to the current filings on late-filed amendments to Contention 2.

Based upon a review of the Telephone Conference transcript, Duke addresses the following additional matters.

1.

Timeliness and Mootness: During the Telephone Conference of July 10 there was a discussion of the issue of whether the Intervenors were on notice of Duke's view that, following submission of the responses to the Staff RAIs, Consolidated Contention 2 is moot because Duke has submitted precisely the evaluation of costs and benefits of SAMAs based on the NUREG/CR-6427 Level 2 analysis as requested in the contention.

Tr. 950-54; 958-59.

Duke believes that the Intervenors have been formally on notice of Duke's position since February 2002, based on the following:31 In Duke's appellate brief in this proceeding, filed on February 4, 2002, at pages 38-40, Duke discussed the mootness of Consolidated Contention 2.

At page 39, Duke specifically stated: "In effect, the NRC Staff has requested the information identified in Consolidated Contention 2 and Duke has provided that information, making further relief unnecessary and the contention moot."

While this appellate brief was filed with the Commission, it was filed in this proceeding and served on all parties. Any distinction between the "proceeding" before the Commission and the "proceeding" before the Licensing based on a consideration of the relevant factors and whether there has been a clear error of judgment.' This inquiry must be 'searching and careful,' but 'the ultimate standard of review is a narrow one."' Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (citing Overton Park, 401 U.S. at 416).

31 Duke supplies the following information to respond to the Licensing Board's questions and comments during the Telephone Conference. Duke, however, does not concede any relevance of this to the timeliness of the Intervenors' proposed amended contentions.

Duke's timeliness arguments with respect to those amended contentions address information that was available at the time the license renewal application was submitted.

Timeliness here does not turn on when the Intervenors became aware of Duke's view that Consolidated Contention 2 was mooted by the RAI responses, but rather on the availability of the information that is either challenged in or the basis for the proposed amended contentions.

18

Board -

on the same docket -

is artificial and irrelevant to the issue of the Intervenors' actual notice. Cf Tr. 950-51.

" The issue was discussed during the February 12, 2002 Telephone Conference. See Tr. 696, lines 3-12, in which Duke counsel stated that "I certainly would hope with respect to the SAMA issue [sic] provided additional information, which as you could probably tell from our appeal brief, we feel satisfies the issue."

Counsel further agreed to discuss settlement based on that information and upon any perceived deficiencies in the additional analysis.

" During the March 13, 2002 Telephone Conference (focusing on Contention 1), Judge Young generally acknowledged the concept that Consolidated Contention 2 might be settled "based on the information that Duke provided in response to Staff's RAI's on the issues involved in Contention 2." See Tr. 740, lines 9-15.

" On April 4, 2002, referencing earlier discussions, counsel for Duke sent an e-mail to Mr. Lou Zeller (taking the lead at the time for the Intervenors on Consolidated Contention 2) with a specific statement of Duke's position. The text of the e-mail was as follows (emphasis added):

"I am contacting you because the Atomic Safety and Licensing Board requested that we (Duke Energy) discuss with BREDL the possibility of settlement with respect to Contention 2 in the Duke Energy license renewal proceeding. I have not heard from you and, as you may recall, the Licensing Board asked that you consider this question prior to the status call next week.

As you ma)' also recall, it is Duke Energv"s position that the company has, in responding to NRC Staff questions, essentially performed the analyses that BREDL requested in the contention. Therefore, the contention is effectively moot. If in your view there is some specific inadequacy in the analyses that Duke has performed for the NRC relating to the specific issues in the contention, we would be interested in hearing that from you. With that information, we would consider what additional steps on Duke's part might be appropriate.

If you are interested in discussing this matter, please contact me by phone or e-mail at your earliest convenience.

19

On April 19, 2002, counsel for Duke sent a letter to Ms. Mary Olson and Mr. Zeller reiterating Duke's position as follows (emphasis added):

"[Contention 2] argues that Duke's license renewal SAMA analyses must consider the data from NUREG/CR-6427 and assess the additional SAMA of a dedicated transmission line. Duke has now done each of these two things -

precisely as requested in the contention. Duke's supplemental work is described in detail in response to the RAIls from the NRC Staff.

We have, under cover of February 1, 2002 and March 20, 2002, forwarded to both of you the information provided to the NRC Staff in response to the RAIs.

The information generated by Duke in response to the RAIs is substantial and, we believe, should allow NIRS and BREDL to determine that the matters in the contention, that you believe should have been addressed, have now indeed been addressed. The relief requested in this proceeding has effectively been given. No further relief based on the current contention, is possible. However, as I have stated before, if there is some specific deficiency in the material in the RAI response that either of you perceive, it would be helpful for you to identify that specific deficiency such that we can productively discuss the matter."

Based on this information, and perhaps also on other undocumented discussions, Duke's position on Consolidated Contention 2 was well known long prior to the filing of the amended contentions.

2.

Availability of the Information on the Duke PRA: In proposed amended Contention 2, the Intervenors seek no specific relief other than access to the Duke PRA. The Intervenors raise "questions" that, as discussed in the Duke Response (at 13-16, 21-24), are late, unfounded, and beyond the scope of Consolidated Contention 2. The Intervenors, under the rubric of NEPA, continue to raise questions about the PRA that are in fact irrelevant to the 20

NUREG/CR-6427 issue and are not in fact based on Duke's RAI responses. 32 The Intervenors also inherently seek discovery without an admitted contention.

Thus, proposed amended Contention 2 should not be admitted.

However, during the July 10 Telephone Conference, the issue of access to the PRA was again raised. Tr. 981-92. Duke therein explained that information on the PRA has been available on the public docket since before the McGuire-Catawba license renewal application was even filed.

Duke adds here, for clarity, that this PRA information was specifically referenced in the "References" section (Section 8.0) of the SAMA evaluations submitted with the McGuire and Catawba Environmental Reports (Attachments K and H to the McGuire and Catawba Environmental Reports, respectively). (Duke counsel also explained this previously in the letter to Ms. Olson and Mr. Zeller of April 19, 2002, referenced above.) It was abundantly clear on the Telephone Conference that the Intervenors have made no effort to obtain 32 As previously discussed, Duke's treatment of Level I and Level 3 issues did not change in the RAI responses incorporating the NUREG/CR-6427 Level 2 data. It is too late to challenge these constants in the SAMA evaluation equation.

21

or review this information. See Tr. 980-84, 990-91. The issues related to the PRA are untimely and there is no basis for proposed amended Contention 2 or any other contention asserting the need for access to PRA information.

R peetfully submitted, David A. Repka Anne W. Cottingham WINSTON & STRAWN 1400 L Street, NW Washington, D.C. 20005-3502 202/371-5700 Lisa F. Vaughn DUKE ENERGY CORPORATION 422 South Church Street Charlotte, N.C. 28202 704/382-8134 ATTORNEYS FOR DUKE ENERGY CORPORATION Dated in Washington, D.C.

this 22nd day of July, 2002 22

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

DUKE ENERGY CORPORATION (McGuire Nuclear Station, Units 1 and 2, and Catawba Nuclear Station, Units 1 and 2)

) )

)

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)

)

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DocKet Nos.

CERTIFICATE OF SERVICE I hereby certify that copies of the "RESPONSE OF DUKE ENERGY CORPORATION TO JULY 15, 2002 LICENSING BOARD ORDER" in the captioned proceeding have been served on the following by deposit in the United States mail, first class, this 22nd day of July, 2002. Additional e-mail service, designated by **, has been made this same day, as shown below.

Ann Marshall Young, Chairman **

Administrative Judge Atomic Saf.ty and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (e-mail: amy Cwnrc.gov)

Dr. Charles N. Kelber **

Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (e-mail: cnk~ nrc.gov)

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555 Lester S. Rubenstein **

Administrative Judge 4760 East Country Villa Drive Tucson, Arizona 85718 (e-mail: lesrrr@'msn.com)

Office of the Secretary **

U.S. Nuclear Regulatory Commission Washington, DC 20555 Attn: Rulemakings and Adjudications Staff (original + two copies)

(e-mail: HEARINGDOCKET nrc.gov)

Adjudicatory File Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 50-369-LR 50-370-LR 50-413-LR 50-414-LR

Susan L. Uttal, Esq. **

Jared K. Heck, Esq. **

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 (e-mail: slu@nrc.gov)

(e-mail: jkh3@nrc.gov)

Mary Olson **

Director of the Southeast Office Nuclear Information and Resource Service 729 Haywvood Road, 1-A P.O. Box 7586 Asheville, NC 28802 (e-mail: nirs.se@mindspring.com)

Paul Gunter **

Nuclear Information and Resource Service 1424 16th Street, NW Washington, DC 20026 (e-mail: pgunter~ nirs.org)

Diane Curran **

Harmon, Curran, Spielberg &

Eisenberg, LLP 1726 M Street, N.W.

Suite 600 Washington, DC 20036 (e-mail: dcurran@harmoncurran.com)

Raju Goyal **

Law Clerk U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (e-mail: RXG5@nrc.gov)

Janet Marsh Zeller **

Executive Director Blue Ridge Environmental Defense League P.O. Box 88 Glendale Springs, NC 28629 (e-mail: BREDL@skybest.com)

Donald J. Moniak **

Blue Ridge Environmental Defense League P.O. Box 3487 Aiken, SC 29802-3487 (e-mail: donmoniak@earthlink.net)

Jesse Riley **

854 Henley Place Charlotte, NC 28207 (e-mail: jlr2020@aol.com)

Anne W. Cottingham Counsel for Duke Energy Corporation 267059.2