ML19208C648
| ML19208C648 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 08/28/1979 |
| From: | Goldberg S, Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7909270181 | |
| Download: ML19208C648 (16) | |
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UNITED STATES OF AMERICA 79 NUCLEAR REGULATORY COMMISSION
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Docket No. 50-312
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NRC STAFF RESPONSE TO REVISED.7'ATEMENT OF ISSUES OF CONCERN TO THE CALIFORNIA ENERGY COMMISSION On August 20, 1979, the California Energy Commission filed a " Revised State-ment of Issues of Concern" (Revised Statement) pursuant to the Board's Prehearing Conference Order of August a, 1979 granting its request to partici-pate in this proceeding as an interested state under 10 CFR 9 2.71S(c). The Revised Statement emphasizes that the Energy Commission does not take a position on any of the issues advanced but wishes to ensure careful examina-tion of all " relevant and meaningful issues" relating to operation of the Rancho Seco facility.
Revised Statement at 1-2.
Given the filing date and the unique character of the Revised Statement, the Staff was unable to reach a written stipulation regarding the acceptability of the Energy Comission's
" issues" by August 20 as contemplated in the Board's Prehearing Conference Order.
Hence, the Staff statement of position in that regard is set forth herein.
7909270(81 1049 045
. I.
Authority of an Interested State to Introduce Issues The Energy Commission has elected not to seek party intervenor status S this proceeding purstiant to 10 CFR { 2.714.M Rather, it chose to partici-pate as an interested state under 10 CFR 9 2.715 which regulation, by defini-tion, deals with the participation of a non-party.
Its participation in this proceeding is thus governed by the provisions of this latter regulaticn.
Section 2.715(c) is silent on whether an interested state may advance issues for evidentiary consideration in a licensing proceedinq.
That regulation provides, in relevant part:
The presiding officer may require such represntative [of an interested state] to indicata with reasonable specificity, in advance of the hearitig, the subject matters on which he desires to participate.
Similarly, it is not entirely clear whether the " subject matters" upon which state participation may be sought are confined to matters otherwise placed in controversy by a party to the proceeding or could extend to the introduc-tion of additional matters by the interested state.
Interpretative case law seems to recognize that an interested state may raise particular issues of concern for adjudication if framed with sufficient detail and precision. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 768-69 (1977).
y Prenearing Conference, dated August 1,1979, at Tr. 31, 51.
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. As to the parameters of such " issues", the Appeal Board had earlier remarked that:
The Section [2.715(c)] does not appear to authorize the injection of new issues into a case.
Thus, a State wishing to " advise" the Commission on an issue not otherwise before the Licensing Board would be required to raise the issue itself by way of a contention meeting the pleading require-ments of Section 2.714(a).
Project "snacement Coro., et al.,
(Clinch River Breeder Reactor Plant' ALAB-354, 4 NRC 383, 393 n. 14 (1976).
(emphasis in original)
The import of the River Bend and Clinch River decisions is not manifest.
Nonetheless, what appears to emerge frca these decisions is the proposition that an interested state may' raise issues in the proceeding, provided its enunciation of thes'a issues confonns to the pleading requirements of 10 CFR 5 2.714 as to specificity and basis.2/
With regard to the matter of proof, the law is not clear as to what role an interested state must play with regard to their propounued " contentions",
and specifically whether the state has the burden of going forwara with regard to such " contentions". However, in the present proceeding this Board has ruled that"[t3he burden of going forward on contentions shall be placed upon the party making the contention...." Prehearing Conference Order at 2.
The Staff has no reason to question either the propriety or the fairness of 2)
The Staff position on the standards for acceptability of contentions (or their equivalent) is set forth generally in its August 20, 1979
" Response to Contentions of Intervenors and Issues of Interested State."
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. that ruling as applied to any accepted " contentions" of the California Energy Comission. E..ClinchRiver, supra.~3/
II. Statement of Position on Statement of Issues The Staff believes that a few preliminary observations are in order before offering its position on each of the issues in turn.
First, the instant proceeding must be understood in terms of the unique sensi-tivity of Babcock & Wilcox (B&W) reactors to feedwater transients and the Staff /Comission perception of the role this sensitivity might play as a precursor or contributor to an accident of the type wich occurred at Three Mile Island, Unit 2.
It was this understanding that led the Staff to recom-mend the shutdown of operating B&W plants to the Comission in the aftermath 1/
of TMI-2.
The Staff was cognizant of those T?iI-2 related matters pertinent to B&W plants when it recomended Rancho Seco's shutdown.
This culminated, of course, in the Comission's confirmatory Order.
The Board derives its jurisdiction herein solely from the Comission's Order of June 21, just as the substance of the proceeding is delineated therein (with cross-reference to the May 7 Order). The Notice should not be construed 3] The Energy Cor: mission attributes a different view to the Staff on the basis of a meeting between counsel for the Staff and Energy Comission on August
- 24. "Brief of the California Energy Comission on the Scope of the Licensing Board's Jurisdiction and Comments on the Burden of Going Forward", dated August 27, at 8.
Staff counsel indicated at the referenced meeting that its views expressed therein were only preliminary in nature and should not be understood as representing a final Staff position.
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-4/ See, e.o., "NRR Status Report on Feedwater Transients in B&W Plants " dated April 25,1979; NUREG-0560, entitled " Staff Report on the Generic Assess-ments of Feedwater Transients in pressurized Water Reactors Designed by the Babcock & W:lcox Company," dated May 1979.
1049 048 to evoke an implicit intent to engage in a wholesale litigation of the TMI-2 accident and its myriad, and as yet evolving, ramifications.
Many of the issues raised by the Energy Comission are merely quotations from two Staff documents whose preparation was prompted by the T!!I-2 accident, namely NUREG-0560 and NUREG-0578.-S/
These documents are among several already issued and to be issued which deal with the subject.
In most cases, the cited passages cantain descriptive coments about the accident, observations steming therefrom, and recomendations of varying applicability to nuclear power plants in general and B&W reactors in particular. The existence of an observation or a critique in these documents does not perforce suggest their relevance to the subject areas of this proceeding as delineated in the June 21 Comis-sion Order.
These remarks should not be construed to mean that the Staff does not adhere to the views expressed in those documents or to minimize the importance of the Energy Comission's concern with regard thereto, but rather to submit that their relevance to this proceeding cannot automatically be assumed.
Matters falling outside the confines of this proceeding may well be fit sub-jects for exploration before some other forum or within another context.-6/
Further, as a procedural matter, the River Bend decision makes it clear that an interested state must do more than merely cite approvingly certain generic 5/
"TMI-2 Lesson Learned Task Force Status Report and Short-Term Recocrqenda-tions," dated July,1979.
6/ See generally "NRC Staff's Brief on Scope of Ethis] Proceeding," dated August 27, 1979.
1049 049 technical issues discussed in a Staff document.
It must demonstrate that each cited item bears some relationship to the license application at issue.
6 NRC at 771. TMe Energy Comission statement of issues runs foul of this admonition. At the same time, while the Staff believes that this is a short-coming throughout the Revised Statement and could serve as a basis for opposing
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the consideration by the Board of issues so framed, it, nonetheless, has en-deavored to ascertain whether the purported issues bear some conceivable re-lationship to this proceeding.
In the majority of the instances (particularly respecting Issue No.1), however, the issues are unduly vague and the Staff could discern no reasonable relationship to the scope of the proceeding with-out the addition of subatantial specification for the issues and thus objects to their admission. The Staff position on each of the issues follows.
d
._ ___J 0 4 9 0 5 0 Issue No. 1 Proposed Issue No. I constitutes a restatement of the first subject desig-nated for evidentiary consideration in the Comission's June 21 Order. The Energy Commission claims that twenty-five enumerated subissues (numbered consecutively herein for discussion) fall within the scope of this subject-area. Subissues 3, 5,16,17,18,19 and 24 are unduly vague, lack reasonable specificity and bear no apparent relationship to the sroject of this pro-ceeding. Thus, the Staff opposes their admission.
Subissues 12,14,15 and 22 constitute mere observations of fact and, in addi-tion to possessing the above infirmities, are not susceptible to a reasonable degree of proof. Thus, the Staff opposes their admission.
Subissue 13 is arguably relevant to the second subject designated for hearing in the June 21 Order but it lacks reasonable specificity. The Staff opposes its admission.
Subissue 23 represents an improper challenge to enumerated portions of Appen-dix A to 10 CFR Part 50 of the Commission's regulations.
Such challenge may only be pursued within the procedural framework outlined in 10 CFR 52.758.
Accordingly, the Staff opposes the admission of this issue as framed.
Subissues 1, 2, 4, 6, 7, 8 (in part), 9,10,11, 20 (in part), 21 and 25, while lacking in clarity, arguably fall within the first subject-area desig-nated in the June 21 Order in that they bear upon consideration of the necessity 1049 051
.. or sufficiency of the actions required by subparagraphs (a) through (e) of Section IV of the,May 7 Order. Thus, the Staff believes they form the basis for acceptable issues for consideration. Specifically, subissues 1, 2, 4, 7, 9,10, 20, 21 and 25 could bear relevance to the short-term actions required by subparagraph (d) of Section IV of the May 7 Order.
Subissue 6 could bear relation to the actions required by subparagraphs (a) or (b) thereof. Sub-issue 11 could bear relation to the actions required by subparagraph (a) thereof. Subissue 8 could bear relation to the actions required by subpara-graph (e) thereof. Thus, the Staff will not oppose consideration of the above subissues but would hope that they could be substantially sharpened through discovery or otherwise.
A portion of subissue 8 concerns, in part, the potential need for " improve-ments in operator qualifications, training and licensing Cand] techniral qualificatiens of overall reactor operator operations orcanizatior.e and, as such, is overly broad and lacks specificity (emphasis added). Similarly, the phrase in subissue 20 which states "and other anticipated operational transients" raises concerns beyond the scope of the subject-areas of the pro-ceeding and should not be admitted.
Issue No. 2 Proposed Issue No. 2 essentially constitutes a restatement of the third sub-ject-area designated in the June 21 Ordar.
It is claimed that this subject embraces consideration of the desirability of certain unspecified " actions" purportedly suggested in NUREG-0560 and NUREG-578, along with those " actions 1049 052
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and areas" set forth in Issue No. 1.
This issue is unduly vague, lacks specificity and, to the extent it seeks to incorporate Issue No.1, raises matters cutside the scope of the third subject-area to which this issue appears to be directed. Accordingly, the Staff opposes the admission of this issue.
Issue No. 3 Issue No. 3 re'lates to the matter of improved operator training and falls generally witnin the pennissible scope of the third subject-area designated in the June ~21 Order insofar as it relates to the fourth long-term modifica-tion (operator training) set forth in Section II of the May 7 Order. The phrase "Other unexpected events," however, lacks reasonable specificity and falls outside the underlying concern articulated in the June 21 Order, namely, response to feedwater transients.
Issue No. 3 contains seven subissues. Subissues (1) and (2) are acceptable issues for consideration.
Subissue (3) is acceptable to tre extent it does not envision litigation of station off-site radiological emergency plans.
Subissue (4) is outside the scope of the proceeding inasmuch as it questions the adequacy of licensee reporting of undelineated " practices or conditions" to the NRC. Subissue (5) is unduly vague. Specifically, the meaning of the term " upset conditions" is uncleTr and could render the subissue outside the scoce of the proceeding. Subissue (6) is unduly vague. Specifically, the
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. meaning of the phrase "with less than originally intended design margins" needs clarification. Subissue (7) is overly broad and lacks specificity.
- Thus, the Staff objects to the admission of these subissues.
Issue No. 4 Issue No. 4 evidences an intent to litigate the adequacy of the station emer-gency plans and corresponding state and local plans. The general subject of emergency plans is not one that falls within the scope of the subject-areas designated in the Comissicn's June 21 Order.
Therefore, the Staff opposes the admission of this issue.
Issue No. 5 Issue No. 5 questions whether, in addition to the short-term and long-term modifications designed to deal with "feedwater transient problems", the facility should be required to institute additional responsive measures to deal with certain undefined " future problems." The issue contains three subissues, the latter of which concerns five enumerated " hazards" which NUREG-0578 purportedly associates with the TMI-2 accident. This entire issue lacks a reasonable degree of specificity and, to the extent it seeks consideration of responses to problems other than feedwater transients, is outside the clear scope of the June 21 Comission Order.
In addition, the Energy Comission does not demonstrate the relationship between the " hazards" allegedly observed at TMI and the Rancho Seco facility. Therefore, the Staff opposes the admissi,on of this issue.
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Issue No. 6 Issue No. 6 posits that consideration should be given to facility operation at less than full rated capacity notwithstano'na the short-term and long-term modific.ations described in the May 7 Comission Order. This issue bor-ders on consideration of a " remedy" which may lie outside the jurisdiction of this Board to impose and is otherwise premature to fashion. There is no basis to believe that the plant could not be operated safely at full power with adherence to the short-term and long-term modifications imposed by the Comission. Therefore, the Staff opposes the admission of this issue in its present form.
Issue No. 7 Issue No. 7 suggests that Rancho Seco should be "retrofitCted]" with certain unspecified safety devices purportedly under consideration for installation on new plants as a result of TMI. The Energy Comission references a Staff meeting summary, a newspaper article, and NRC Staff briefing before the Energy Comission for the proposition that additional requirements will be imposed upon pending license appli ants as the result of TMI-2.
Revised Statement at 17 n. 4.
In the absence of a speific " requirement", however, the issue is both speculative and not susceptible to a reasonable degree of proof.
Therefore, the Staff opposes the admission of this issue in its present form.
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.. _. Issues No. 8-10 The Energy Comission has withdrawn issues 8 through 10 at this time (with a reservation).
Therefore, the Staff will not offer a position on the ad-missibility of these issues.
Should the Energy Comission seek their intro-duction at some future dats, the Staff will respond as appropriate.
For the information of the Board, counsel for the Staff and Energy Comission have agreed to hold negotiating sessions involving technical staffs in an effort to explore the concerns underiying the " issuer of the Energy Comis-sion with the expectation that the issues can be clarified for everyone's benefit and perhap satisfy the Energy Comission that certain matters need not require litigation. The licensee will be invited and encouraged to actively participate in these meetings. The Staff believes that these ses-sions will be held in a spirit of cooperation with a view toward the informal settlement of otherwise challenged matters. This is consistent with the Comission philosophy encouragir.; the r ~ Mement of contested issues in a proceeding.
7/
Energy Comission motion to reply to Lic6nsee responsive pleading, dated August 27, at 4-5.
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. CONCLUSION Based on the above, the Staff supports the introduction of certain specified portions of Issues No. I and 3 as issues for evidentiary consideration in this proceeding. The 'itaff objects to any consideration of the balance of the proferred issues.
Respectfully submitted, AUY
/
Steven C. Goldberg Counsel for NRC Staff bQ A=
sf Stephen H. Lewis Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of August,1979.
o '157 jna
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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^ In the Matter of SACRAMENTO MUNICIPAL UTILITY
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Docket No. 50-312 DISTRICT
)
)
(Rancho Seco Nuclear Generating Station)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appdarance in the above-captioned matter.
In accordance with 10 CFR 52.713(a),
the following information is provided:
Name
- Steven C. Goldberg Address
- U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C.
20555 Telephone Number
- (301) 492-7311 Admissions
- Supreme Court of the United States of America Supreme Court of the State of New Jersey District of Columbi-a Court of Appeals Name of Party
- NRC Staff U.S. Nuclear Regulatory Commission lbu
.A LLW Steven C. Golaberg
- Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of August, 1979.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0t@tISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of SACRAMENTO MUNICIPAL UTILITY
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Docket No. 50-312 DISTRICT Rancho Seco Nuclear Generating Station-CERTIFICATE OF SERVICE
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I hereby certify that copies of "NRC STAFF RESPONSE TO REVISED STATEMENT OF ISSUES OF CONCERN TO THE CALIFORNIA ENERGY COMMISSION" and " NOTICE OF APPEARANCE" for Steven C. Goldberg in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 28th day of August,1979.
Michael' L. G' laser, Esq., Chairman Gary Hursh, Esq.
115017th Street, N.W.
520 Capitol Mall Washington, D.C.
20036 Suite 700 Sacramento, California 95814
- 0r. Richard F. Cole Atomic Safety and Licensing Board Panel Mr. Richard D. Castro U.S. Nuclear Regulatory Commission 2231 K Street Washington, D.C.
20555 Sacramento, California 95816
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- Mr. Frederick J. Shon James S. Reed, Esq.
Atomic Safety and Licensing Board Panel Michael H. Remy, Esq.
U.S. Nuclear Regulatory Ccamission Reed, Samuel & Remy Washington, D.C.
20555 717 K Street, Suite 405 Sacramento, Califorriia 95814 David S. Kaplan, Esq.
General Counsel Christopher Ellison, Esq.
Sacramento Municipal Utility District Dian Grueneich, Esq.
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P. O. ' Box 15830 California Energy Comission Sacramento, California 95813
.1111 Howe Avenue Sacramento, California 95825
. Timothy V. A. Dillon, Esq.
. ~
. Suite 380 1850 K Street, N.W.
Washington, D.C.
20006
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e 4
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- Atomic Safety and Licensing Board Panel U.S. Nuclear Regul4 tory Commission
' Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washingt'on, D.C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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).L A k Steven C. Goldberg Counsel for NRC Staff 4
4 1049 060
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