ML19290E506

Response in Opposition to NRC 800211 Motion to Deny Intervenor Request for Hearing on Commission 791130 Confirmatory Order.Injury May Be Inflicted by Inaction Per Medical Committee Vs Sec

ML19290E506
Person / Time
Site:	Point Beach
Issue date:	02/22/1980
From:	Falk K WISCONSIN'S ENVIRONMENTAL DECADE
To:	NRC COMMISSION (OCM)
References
NUDOCS 8003140143
Download: ML19290E506 (7)

Text

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• Q UNITED 6TATES OF AMERICA goCM g BEFORE THE NUCLEAR REGULA70RY COMMISSION g}StGO -

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SQ g POINT BEACH NUCLEAR PLANT UNIT 1 p DOCKET NO. 50-266 C>

4 S ANSWER OF WISCONSIN'S ENVIRONMENTAL DECADE, INC.

IN OPPOSITION TO STAFF MOTION TO DENY REQUEST FOR HEARING (Steam Generator Tube Deg adation Matter)

INTROD ITION By motion dated February 11, 1980, the Staff has asked the Cbmmission to deny the Decade 's December 17, 1979 request for hearing on the November 30, 1979 Confirmatory Order in the above-captioned matter. This is to reply to the Staf f motion in opposition.

Staf f contends that the Decade 's request for a hearing on the Ganfirmatory order should be denied on the following grounds :

(1) 7he Decade does not have standing to secure a hearing as a matter of right because:

(a) At the time the Confirmatory Order was entered, "the unit was free to restart" and the " Order did not permit the unit tc restart" (see : Staff Motion to Deny Pequest for Hearing, dated February 11, 1980, at 5) ; and (b) The Confimatory Order cannot injure the Decade's interests in that it only resulted in "the imposition of additional restrictive requirements upon the licensee"(see : Id., at 5).

(2) The Decade should not be afforded an opportunity for hearing in the exercise of the Comission's discretion becouse the Commission has previously declined to overturn the Staff's decision to permit restart of the smit (see : M. , at 8 to 9) .

800314o 193

No mention whatsoever is made in the Staff's motion concerning the substance of the Decade's assertions in this regard.

For the reasons set forth below, the Staff motion should be rejected and the Decade's request for an adjudicatory hearing granted forthwith.

ARGUMENT I

THE DECADE HAS STANDING TO SECURE A HEARING AS A MATTER OF RIGHT The Staff would have the Commission believe that Point Beach 1 was free to restart at the time of the confirmatory Order and that the Order operated only to improve safety conditions. Therefore, the Staff argues, no basis exists for establishing injury to the Decade from the Order.

'Ihis is factually and legally erroneous.

A. POINT BEACH HAD BEEN ORDERED NOT TO REOPEN WI'IHOUT PRIOR WRITTEN APPROVAL Point Beach 1 experienced severe tube degradation in August and October, 1979. (See: Safety Evaluation Report Related to Point Beach Unit 1 Steam Generator Tube Degradation, dated November 30, 1979, at 6 to 7.)

While the unit was still down for further inspections following the October 1979 outage, the Decade filed a petition with the Cbmmission requesting an order barring the plant from restarting. (See: Petition of Wisconsin's Environmental Decade, Inc. , dated November 14, 1979.)

In response to the Decade petition, the Commission apparently expressed its concern and dirccted Staff to preserve the status quo, pending its consideration of the request. (See : Transcript of November 28, 1979 open Meeting, at 3 and 51.)1/

1/ 'Ib the extent required by 10 C.F.R. 9.103 authorization is requested to cite from the transcript at this and at the January 2, 1980 public meeting throughout this memorandum.

At this point, and contrary to the representations in the Staff's motion, the licensee was directed to not restart the facility, which was then shut down, without prior written authorization from the Cbmmission. Mr. Eisenhut for the Staf f stated to the Commission on November 28, 1979:

"MR. EISENIlUT: First, the Point Beach Unit I reactor, which is primarily what we are talking about today, has been shut down for refueling for some time. That plant is in a holding pattern. It is ready to return to power on November the 21st. It is since being held up and bieng held at zero power, at my request a few days back, and they are doing criticality tests and this kind of thing.

"It has been held up since November the 21st. ***

"MR. GILINSKY: I have some questions of the staff. Where have you actually lef t the plant? What sort of arrangements have been made between you and the licensee concerning startup of the plant?

"MR. EISENHUT: First, in the same package that the licensee has agreed at the meeting with the Environmental Decade and a number of other outside individuals and staff and everyone else present last Tuesday, they agreed that the plant would not start up without prior written approval, even though the approval may not be normally required because of toch spec change, et cetera.

"I told them that I wanted the plant to stay down until, number one, the staf f had written the safety evaluation addressing all of these concerns, and, number two, we had addressed the Environmental Decade-at least we addressed the petition at least preliminarily. If we done't have the complete detailed response prepared, there would be a reply out and a safety evaluation written. Until the details are worked out on the actual finetuning of these requirenents and the administrative vehicle is in place, the plant is shut down .' It is operating at zero power." (See:

November 28 Transcript, supra, at 4 and 80. Emphasis added.)

It now being understood that the unit was ordered to not restart without prior written approval, it follows that the Confirmatory Order served to provide that authorization-without which the plant would still be shut down today.

The re fore, the acknowledged interest of the Decade in keeping the facility off-line until the tubo degradation problem is fully solved has been injured by the Confirm-atory Order.

B. EVEN IF THE PLANT WERE AU'I110RIZED TO OPERATE WITHOUT THE CONFIRMATORY ORDE R, T!!E ACTIONS AUTHORIZED IN THAT ORDER CONTAIN ELEMENTS WHICH POSE S AFETY RISKS Even if, arguendo, it were true (which it is not) that the licensee could

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have lawfully resumed operation without the Confirmatory Order, it is untrue to maintain that the Order only served to improve safety by imposing additional restrictions and thus does not harm the Decade.

Part of the Staff's safety evaluation that underlay the Confirmatory Order was a proposed reduction in the operation temperature of the hot leg in the 0

primary system from approximately 597 F to 557 F. (See: November 30 Safety Evaluation Report, supra, at 2 3.)

Howe ve r, then on December 11, 1979, ten days af ter resuming operation and following complete testing of all problem tubes, major leaking recurred. (Re,:

Licensee Event Report 79-021/OlT-0, dated December 22, 1979.)

Staf f's own analysis of the December 11 outage to the Commission concluded that the reduction in operating temperature had worsened instead of improving the problem. Mr. Trammell for the Staff stated:

"But in doing the reductions in primary system temperature, they actually aggravated the problems associated with differential pressure across the tubes, because in lowering the average temperature in the reactor, he lowered the steam pressure. At the same primary pressure, he lowers the steam pressure about 200 psi. So instead of business as usual at 1400 psi differential or thereaL]uts, he actually increased this to 1600 psi. So the reduction in pressure is really a necessary part of the package , because just taking reduced temperatures by themselves, you increase the stress across the tubes by about 15 percent." ( See : Transcript of January 2,1980 Public Meeting, at 10. Emphasis added.)

Furthermo re , although not raised in the Staff's motion, it could not be argued that the foregoing problem was mooted by the subsequent modification to primary pressure (see : Order obdifying Confirmatory Order of November 30, 1979, dated January 3, 1980), for reduction in pressure adversely affects saturation and the ability to cool the reactor under all conditions. As stated by the Staf f:

"This change to a lower pressure adveresly affects the departure from nucleate boiling ration and requires justification that the reactor is still adequately protected." (Se e : Safety Evaluation Related to the Point Beach Unit 1 Steam Generator Tube Degradation due to Deep Crevi;e Corrocion, dated January 3,1980, at 1.)

In all of these particulars above, it must be borne in mind that questions of standing--which is the only issue here--do not go to the merits (see : Data Processing v. Camp (1970), 397 U .S . 150, 15 3-15 8) , and therefore neither the Staf f 's (nor anyone else 's) disagreement as to the magnitude or final resolution of these potential ill effects cannot operate to lessen the Decade 's cognizable injury so long as that claim of injury is not sham (see: U. S. v. S .C . R. A .P . (197 3) , 412 U.S. 669, 688)

But, in any event, it is clear that there is sufficient potential harm ensconsed within the putative improvements of the Confinnatory Order to confer standing. All that standing requires is more than a "triffle". (See : S .C . R .A .P . ,

supra , at 689 n .14.)

C. EVEN IF THE PLANT WERE AUTHORIZED TO OPERATE ABSENT THE CONFIRMA'IORY ORDER AND EVEN IF THERE WERE NO INJURIOUS ELEMENTS IN THE CONFIRMATORY ORDER, INJURY FROM AGENCY INACTION IS RECOGNIZED IN LAW In addition to the Staf f's tuccurate claim that the Decade was not inj ured by the Confirmatory Order, the Staff asserts that the Decade's real " dissatisfaction is not with the action taken, but with the action not taken by the Commission."

(See: Staff Motion, supra , at 6. Emphasis in original .)

Even if, arguendo, it were true that there was no injury to the Decade from what is in the Confirmatory Order, administrative law fully recognizes that injury may be inflicted by inaction as well as by action. (Medical Committee v. S .E .C .

(D.C.Cir. 1970), 432 F. 2d 659; E.D.F. v. Hardin(D.C .Cir. 1970) , 1 E.R.C. 1347, 1351; Rochester v. U .S . (1938) , 307 U .S . 125, 14 3; E .D .F . v. Ruckel shaus (D .C .Cir.

1971) , 439 F. 2d 584, 590.)

Thus, even when limited to things which are omi tted from the Confirmatory Order, standing still exists, for no one denies that the Decade has been injured by the failure of the Commission to take sterner actions to protect safety.

II EVEN IF THE DECADE IS NOT ENTITLED TO A HEARING AS A MA7'IER OF RIGHT, THE COMMISSION SHOULD COMMENCE A HEARING IN THE EXERCISE OF ITS DISCRETION The primary basis for also denying a hearing in the Commission's discretion, according to Staff, is the fact that the Commission did not intervene to overturn prior Staff actions to permit resumed operation of Point Beach 1.

This epitomizes the very attituce which has led every investigation of the Commission to conclude that the e gency is " incapable" of protecting against

, nuclear accidents and " unable" to fu3 fill its responsibilities. (See: Special Inquiry Group, Three Mile Island (1980), at 89; President's Commission on the Accident at Three Mile Island, The Need for Change (1979) , at 56.)

As we stated in our December 17 request for hearing, tube degradation on a generic basis has been steadfastly ignored by this Commission and its predecessor agency and denied the thorough and systematic analysis it demands, even in the face of unanimous scientific criticism. (See Request for Hearing, dated December 17, 1979, at 19 to 21.)

To this in the instant case, Staff has arrogantly and cavalierly avoided each and every assertion made in our request for hearing. At the same tbne, Sta f f makes no reference to the most serious allegations of dishonesty on the part of the licensee (see: January 8,1980 Decade letter) and the vendor (see: Re quest for Hearing, supra, at 15).

Still, and all toapredictably, Staf f ncnetheless feels confident in urging that no hearing be held. That arrogance, indifference and irresponsibility carries with it full culpability in the event an accident occurs at Point Beach.

Even if, arguendo, a hearing is not granted or otherwise ordered as a matter of right, the facts compel such a hearing as a matter ot ciscretion to answer the major unresolved questions threatening safe operation of Point Beach and other reactors with serious tube degradation problems.

CONCLUSION For the foregoing reasons, the Staff notion to deny hearing should te rejected and the Decade request for hearing should be granted forthwith.

Respectfully subnitted by, WISCONSIN'S ENVIRONMENTAL DECADE, INC.

By: -

• KATHLEEN M. FALK General Counsel P .O . Addre ss :

114 East Mifflin Street Por t Office Box 1105 Madison, Wisconsin 53703 (608) 251-7020 Dated: February 22, 1980

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