ML19210E863
| ML19210E863 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/30/1979 |
| From: | Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912130110 | |
| Download: ML19210E863 (15) | |
Text
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November 30, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
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LICENSEE'S OPPOSITION TO PETITION OF STEVEN C.
SHOLLY FOR AN EXCEPTION TO 10 C.F.R.
S 50.44 Intervenor Steven C.
Sholly ("Sholly"), pursuant to 10 C.F.R.
S 2.758 (b) (19 79), has filed with the Licensing.
Board a petition seeking an exception from the provisions of 10 C.F.R.
S 50.44 with respect to proceedings in the above-captioned docket.
For the reasons set forth below, Licensee opposes the petition.
Grant of the Sholly petition is a necessary predi-cate to litigation of his proposed contention no. 11.
That contention states:
It is contended that the production of hydro-gen in the reactor core from clad metal-water reactions following a LOCA poses an unaccept-ably high risk of catastrophic failure of the reactor pressure vessel and the reactor con-tainment, with the subsequent release of a sub-stantial portion of the core inventory into the environment.
It is further contended that until a safe and reliable means for eliminating hydro-gen gas from the containment is installed at i543 274 912130 I
. Unit 1, and is provided with suitable re-dundancy as required by GDC 41, restart of Unit 1 poses a risk to public health and safety and must be denied.
As noted in Licensee's October 31, 1979 Response, this contention is inappropriate for litigation in an adju-dicatory proceeding because it challenges the adequacy of 10 C.F.R.
S 50.44, which provides that no hydrogen gas control system other than purging is required for plants, such as TMI-1, constructed in the tir.e frame and in the manner described in 10 C.F.R. S 50. 4 4 (g).1!
Sholly seeks to avoid the impact of this regulation by seeking an exception from its provisions.1/
That request should be denied because the issue of hydrogen gas control is beyond the scope of this re-start proceeding.
Should the Board disagree with Licensee on this matter, and should the Board thereaf ter find that Sholly has made the prima facie showing required by 10 C.F.R.
S 2.758(d), Licensee respectfully requests that when the Board certifies the matter to the Commission, it include within that certification the scope issue --
i.e., whether hydrogen gas control is a subject intended by the Commission in its August 9 Order to be litigated in this proceeding.
1/ Section 50.44(g) applies to facilities for which the notice of hearing on the application for a construction permit was published on or before December 22, 1968. In the case of TMI-l that notice was published on January 27, 1968 (33 Fed.
Reg. 1082).
E! Licensee notes that, in addition to Sholly's contention no. 11, other intervenors also have sought to litigate con-tentions which challenge the provisions of 10 C.F.R.
S 50. 44 (g).
See ANGRY Contention No. 5(a); UCS Contention No. 11.
To date neither of these parties has sought an exception from the pro-vision of 10 C.F.R.
S 50.44 (g).
1543 275
. Hydrogen Gas Control is Beyond the Scope of this Restart Proceeding It is axiomatic that a licensing board does not have the power to explore matters beyond those which are embraced by the notice of hearing for the particular pro-ceeding.
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 N.R.C.
167, 170-171 (1976).
This rule is especially true in proceedings, like that here, where the notice of hearing is limited to certain specified issues, rather than a more general listing of topics as set forth in a construction permit or operating license proceeding.
E.g.,
Portland Gen-eral Electric Company (Trojan Nuclear Plant), ALAB-534, 9 N.R.C.,
287, 285-90 n.6 (1979) (interim operation of facility pending completion of control building modifications);
Union Electric Company (Callaway Plant, Units 1 and 2), LBP-78-31, 8 N.R.C.
366, 370-71 (1978), aff'd, ALAB-527, 9 N.R.C.
126, 144 (1979) (construction permit show cause proceeding).
See also Virginia Electric & Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 N.R.C.
n.7 (June 26, 1979).
Thus, the scope of this restart proceeding is as set forth in the Commission's August 9, 1979 Order and Notice of Hearing.
The Licensing Board already has received a brief on the scope of this proceeding from Licensee, and has heard 1543 276
. extended oral argument on the matter during the special prehearing conference.
On the basis of this briefing and oral argument, the various positions of the parties on the scope of the proceeding were identified.
Both Licensee and the NRC Staff agree that the scope of this proceeding is confined to the bases for suspension (Tr. at 151 & 365);
Licensee contends that the bases for suspension are limited to matters covered in orders and bulletins issued to other Babcock & Wilcox reactor owners and to other specified issues unique to TMI, while the NRC Staff views the bases for suspension as those matters having a clear and close analogue to the TMI-2 accident.1!
In determining whether the hydrogen gas control issue is within the scope of this proceeding, the Licensing Board need not, however, decide if Licensee's or the NRC Staff's understanding of the bases for suspension is the more accurate.
This is because the struc-ture and content of the Commission's August 9 Order evidences a clear intent by the Commission to treat the hydrogen gas control issue in a generic manner, outside the scope of this particular proceeding.
In this regard, the August 9 Order identified eight
-3/ A third view, expressed by some of the intervenors (but not Sholly), is that this proceeding is to encompass a com-plete review of TMI-1, including all health and safety concerns and all environmental factors relating to nuclear power.
This position clearly is contrary to the well-accepted view that the authority of this Licensing Board is limited by the notice of hearing.
1543 277
, short-term items (slip op. at 5-7) and four long-term items (slip op. at 7-8) which the Licensing Board was directed to address.
The last of the short-term items was compliance with the Category A recommendations specified in Table B-1 of NUREG-0578, while the third long-term item was compliance with the Category B recommendations specified in Table B-1.
With respect to the recommendations in Table B-1 relating to hydrogen gas control, this directive means that Licensee must comply with items 2.1.5.a (dedicated hydrogen control penetrations) and the last part of 2.1.5.c (review procedures and bases for recombiner use).
Significantly, however, matters dealing with the more general issues. relating to hydrogen gas control (item 2.1.5.b and the first part of item 2.1.5.c) are not listed as either Category A or B items, but rather are marked with an asterisk -- denoting that " [i]mplemen-tation schedules will be established by the Commission in the course of the immediately ef fective rulemaking. "
By specifi-cally identifying the Category A and B items, but not those marked by an asterisk for which a rulemaking proceeding would be conducted, the Commission limited the scope of this proceeding in the natural, common-sense manner -- i.e.,
to exclude from concurrent individual adjudication matters which the Commission intends to handle through rulemaking.
Nor is the reasoning behind the Commission's approach to che hydrogen gas control issue difficult to discern.
The issue raised is not only complex and far ranging, but it i543 278
. turns upon concerns that cannot adequately be presented in a proceeding involving only one plant, one utility, and a limited set of intervening parties.
Compare Vermont Yankee Nuclear Power Corn. (Vermont Yankee Nuclear Power Station),
CLI-74-40, 8 A.E.C. 809, 814-15 (1974).
To begin with, Licensee notes that, in issuing its August 9 Order, the Commission had before it the NRC Staff's conclu-sion that the lessons learned from the TMI-2 accident with respect to hydrogen gas control do not raise immediate safety concerns.
As stated in the TMI-2 Lessons Learned Task Force Status Report and Short-Term Recommendations at A-19 (July 1979) (NUREG-0578) :
For the short term, the experience at TMI-2 does not by itself provide conclusive reason to significantly increase the current design basis for hydrogen control systems.
Further study is required regarding the entire design basis for combustible gas control systems and core cooling systems to assure a proper balance of hydrogen prevention and mitigation features.
Moreover, the issue is not simply whether hydrogen recombiners should be required at all plants regardless of nge.
- Rather, the hydrogen gas control issue raises very fundamental ques-tions with respect to the design approach and philosophy used in preventing, controlling and mitigating a LOCA.
As the Les-sons Learned Task Status Report went on to note (NUREG-0578 at A-23) :
The course of events at TMI-2 with respect to hydrogen production and control in containmen'.
1543 279 has indicated a need for_ thorough reconsidera-tion of the Commission's design basis for combus-tible gas control systems.
In general, the accident at TMI-2 raises the question of whether the short-term design basis for post-accident combustible gas control systems (metal-water reaction) is underestimated and the long-term design basis (radiolysis and corrosion) is overestimated, resulting in a hydrogen recombiner design that is not capable of providing short-term protection and may not have been needed in the long term.
Because of these considerations, it is the con-clusion of the majority of the Lessons Learned Task Force that provisions for the post-accident installation of recombiners should not be re-quired as a short-term action.
Such considera-tion should be part of the long-term reconsidera-tion of the design basis for combustible gas control systems.
And, as already noted, the Commission also had before it the NRC Staff's recommendation that the subject of post-accident hydrogen gas control be handled through rulemaking, including implementation schedules.
The "long-term reconsideration" recommended by the Lessons Learned Task Force is particularly appropriate for treatment in a rulemaking forum.
It involves matters of a generic nature, likely to affect numerous licensees and plants, where no clear consensus as to the appropriate technical approach yet exists.
While various proposals for additional hydrogen gas control measures have been advanced, information sufficient to provide an informed decision on these proposals rust still be developed and analyzed.
The current state of affairs is aptly summarized in the TMI-2 Lessons Learned Task Force Final Report at 3-5 (October 1979) (NUREG-0585):
1543 280
-g.
Because the accide_' at Three Mile Island ex-ceeded many of th(. present design bases by a wide margin and was evidently a significant precursor of a ecte-melt accident, the Task Force has concluded that the NRC should begin to formulate requirements for design features that could mitigate the consequences of core-melt It appears to us that suf-accidents.
ficient studies have been completed to support a preliminary conclusion that controlled filtered venting of containments is an effective and feasible means of mitigating the consequences of core melting.
We do not recommend going be-yond that degree of mitigation, at least for all currently approved designs, except for con-tinued core-melt research.
However, not all of the relevant information on the use of filtered venting of containment has been eval-uated, and the issuance of a regulatory require-ment within the next few months is impossible.
Sufficient information can probably be generated within the next year, including information from the NRC's research program for improved reactor safety.
An evaluation and a Commission decision could be made soon thereafter as to whether to require this specific design feature for core-melt accidents in light water reactor power plants.
[ Emphasis added.]
The final Lessons Learned Report goes on to warn (NUREG-0585 at 3-6) :
It appears from information that we have re-viewed that hydrogen control measures, for de-graded core events short of core melt, that might be feasible and effective in some contain-ment designs would not be as effective or feas-ible in others.
For some designs, it might also be possible that strong engineering arguments can be presented to prove that their degree of prevention of degraded core events is sufficient to offset the reduction of risk attainable by hydrogen control measures in other designs.
These should be considerations in the rulemaking.
[ Emphasis added.]
1543 281 In view of these circumstances, an individual adjudication of the hydrogen gas control issue in this proceeding would be waste-ful and not likely to result in a complete record.
Cf. Potomac Electric Power Company (Douglas Point Nuclear Generating Sta-tion, Units 1 and 2), ALAB-218, 8 A.E.C.
79, 84 (1974); Natural Resources Defense Council, Inc. v. MRC, 547 F.2d 633, 641 (D.C. Cir. 1976), rev'd on other grounds sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,
435 U.S.
519 (1978); Note, The Use of Generic Rulemaking to Re-solve Environmental Issues in Nuclear Power Plant Licensing, 61 Va. L.
Rev. 869, 882 (1975); Note, Judicial Review of Generic Rulemaking:
The Experience of the Nuclear Regulatory Commission, 65 Geo. L.
Rev. 1295, 1301-02 (1977).
In addition, requiring adjudication of the hydrogen gas control issue in this proceeding, while TMI-1 remains shut down, would be highly discriminatory.
Contrary to the unsupported representation in the Sholly petition (see p.
2), there is no distinction between the " obvious generic problem of uydrogen generation and the specific circumstances being addressed (with respect to TMI-1]."
No other reactor in the country has been shut down while an " obvious [ly] generic problem" has been re-solved in an individual adjudication.
The Commission speci-fically decided in its August 9 Order that, if additional long-term requirements are imposed on other operating reactors by an immediately effective Commission order, then the Commission will, to the extent appropriate in the circumstances, issue orders, effective immediately, to require that Licensee demon-1543 282
. strate in this proceeding reasonable progress toward completion of such additional actions as a condition to restart.
In the absence of a further order of that type, however, litigation of the hydrogen gas control issue is unwarranted and would only serve to hold TMI-l " hostage" pending resolution of an industry-wide concern (compare Tr. at 741).
Licensee reaches this result notwithstanding that it may appear to some that a significant safety issue is being ex-cluded from consideration in this proceeding.
Commission pro-cedures already exist which ensure that full consideration will be given to any significant safety issues regardless of whether such matters are litigated in this proceeding.
The Appeal Board recently commented on these procedures, and the role that such procedures play in the broad franework of the Commission's safety reviews, during the course of its decision in Virginia Electric & Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 N.R.C.
(June 26, 1979).
There, the Appeal Board had retained jurisdiction over the North Anna proceeding with respect to three specific and iso-lated issues.
Subsequently, the NRC Staff transmitted a " Board Notification" relating to the use of nonsafety grade equip-ment in mitigating consequences of anticipated operational oc-currences.
The question thus raised was the Appeal Board's jurisdiction to consider the nonsafety grade equipment issue.
The Appeal Board held that it retained jurisdiction to hear the matter only if a " reasonable nexus" exists between the matter and the limited issues still pending before it (ALAB-1543 283 551, slip op. at 4-5).
That such a conclusion might preclude Appeal Board consideration of the matter did not, however, mean that the matt er must he ignored.
Rather, the Appeal Board stated (M. at 8-9) :
We hasten to add that * *
- the absence or loss of appeal board jurisdiction over a particular issue because of finality considera-tions does not mean that, even if clothed with serious safety or environmental implications for the facility in question, the issue must be ig-nored.
To the contrary, it just falls within the staff's bailiwick, not ours.
It can be there reviewed on an informal basis; beyond that, either on his own initiative or upon the request of any individual (whether or not a party to the licensing proceeding), the Director of Nuclear Reactor Regulation is empowered to institute a show-cause proceeding looking to the modifica-tion, suspension or revocation of a particular permit or license.
10 CFR 2.202, 2.206.
In the show-cause proceeding, the new matter would.be subject to full ventilation and the grant of such relief as might be warranted by the dis-closures of record.
[ Footnotes omitted. ]
A similar result is required here.
As to matters which raise or may raise significant safety concerns, but are not within the scope of this proceeding, resolution of such matters lies initially with the NRC Staff outside the framework of this proceeding.
The only modification to this procedure here is that the Commission already has reserved for itself the right to interject new matters into this proceeding by means of an immediately effective order to that effect.
Thus, overview by both the NRC Staff and the Commissioners themselves assure that safety matters related to TMI-l but not within the scope of this proceeding will receive a full airing.
1543 284 For all these reasons Licensee believes that the Sholly petition should be denied because it seeks to place in contro-versy a matter beyond the scope of this proceeding.
Respectfully submitted, SHAW, PIT MAN, POTTS & TROWBRIDGE By:
jf),s
. ///4!)'b./
y Ggr6rgd F. Trowbridge/
Dated:
November 30, 1979 1543 285
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289 (Three Mile Island Nuclear
)
(Restart)
Station, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Objec-tion to Petition of Steven C.
Sholly for an Exception to 10 C.F.R.
S 50.44", dated November 30, 1979, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 30th day of November, 1979.
m mA4 V Geatge F.
Trowbridge /
Dated:
November 30, 1979 1543 286
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289
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(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
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SERVICE LIST Ivan W. Smith, Esquire John A. Levin, Esquire Quinran Assistant Counsel Atcmic Safety and Licensing Pennsylvania Public Utility Camt'n Board Panel Post Office Box 3265 U.S. Nuclear Regulatory Ccamission Harrisburg, Pennsylvania 17120 Washington, D.C.
20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atomic Safety and Licensing 505 Executive House Board Panel Post Office Box 2357 881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 Ibbert L. Knupp, Escuire Dr. Linda W. Little Assistant Solicitor Atomic Safety ana Licensing County of Dauphin Board Panel Post Office Box P 5000 Hermitage Drive 407 North Front Street Raleigh, North Carolina 27612 Harrisburg, Pernsylvania 17108 Janus A. Tourtellotte, Esquire Johu E. Minnich Office of the Executive Iagal Director QiainN2n, Dauphin County Board U. S. Nuclear Regulatory Conmission of Ocmrissioners Washington, D.C.
20555 Dauphin County Courthouse Front and Market Streets Docketing and Service Section Harrisburg, Pennsylvania 17101 Office of the Secretary U. S. Nuclear Regulatory Ccmuission Walter W. Cdnen, Esquire Washington, D.C.
20555 Consumer Advocate Office of Consumer Advocate 14th Floor, Strawterry Square Harrisburg, Pennsylvania 17127 1543 287
.. Jordan D. Cunningham, Esquire Chauncey Fepford Attorney for Newberry Township Judith H. Johnsrud T.M.I. Steering Ccmnittee Environmental Coalition on Nuclear 2320 North Second Street Power Harrisburg, Pennsylvania 17110 433 Orlando Avenue State College, Pennsylvania 16801
'Iheodore A. Adler, Esquire Widoff Peager Selkowitz & Aller Marvin I. Iewis Post Office Box 1547 6504 Bradford Terrace Harrisburg, Pennsylvania 17105 Philadelphia, Pennsylvania 19149 Ellyn R. Weiss, Esquire Marjorie M. Aamodt Attorney for the Union of Concerned R. D. 5 Scientists Coatesville, Pennsylvania 19320 Sheldon, Harmon & thiss 1725 Eye Street, N.W., Suite 506 Jane lee Washington, D.C.
20006 R. D. 3, Box 3521 Etters, Pennsylvania 17319 Steven C. Sholly 304 South Market Street Mechanicsburg, Pennsylvania 17055 Frieda Berryhill, Chainran Coalition for Nuclear Power Plant Postponement 2610 Glendon Drive Wilmington, Delaware 19808 Gail Bradford Holly S. Keck Iagislation mainnan Anti-Nuclear Group Papresenting York 245 West Philadelphia Street York, Pennsylvania 17404 1543 239 Karin P. Sheldon, Esquire Attorney for People Against Nuclear Energy Sheldon, Harmon & Phiss 1725 Eye Street, N.W., Suite 506 Washington, D.C.
20006 Pobert Q. Pollard Gesapeake Energy Alliance 609 Montpelier Street Baltimore, Maryland 21218