ML19318B492

Response in Support of Ucs 800606 Motion for Reconsideration of Commission Decision CLI-80-16 Re Hydrogen Control Criteria.Urges Waiver of Hydrogen Design Basis Assumptions If Commission Adheres to Decision.Certificate of Svc Encl

ML19318B492
Person / Time
Site:	Three Mile Island
Issue date:	06/24/1980
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CLI-80-16, NUDOCS 8006260276
Download: ML19318B492 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COk,,#pBO

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METROPOLITAN EDISON COMPANY )

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Docket No. 50-289 (Three Mile Island Nuclear )

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Station, Unit No. 1) )

LICENSEE'S RESPONSE TO UCS' MOTION FOR RECONSIDERATION OF CLI-80-16 On June 6, 1980, the Union cf Concerned Scientists (UCS) filed a motion requesting the Commission to reconsider its decision in CLI-80-16 not to waive or make an exception in this proceeding to the hydrogen control criteria established by 10 CFR 50.44.

For reasons different than those advanced by UCS, Licensee joins UCS in its request.

It has been Licensee's position that post-accident hydrogen control is a long-term generic issue intended to be dealt with by the Commissien through rulemaking and therefore outside the intended scope of the TMI-l restart hearing. Five Commissioners have ruled otherwise in CLI-80-16 and Licensee does not now seek to relitigate the question of scope. Licensee, however, does urge that if the issue of hydrogen control is to be considered in this proceeding, the Ccemission should accom-  :

plish this objective through a waiver of or exception to 10 CFR 9 sy  ?

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50.44 rather than through a novel and, in Licensee's view, improper application of 10 CFR 100.

NRC and its licensees have long promoted the es-tablishment of design and other regulatory criteria through generic rulemaking proceedings. One of the advantages sought, and generally believed by NRC applicants and licensees to have been obtained, through the establishment of criteria by regulation is the removal of such criteria from litigation in individual licensing proceedings. Thus A-omic Safety and Licensing Boards and Appeal Boards have consistently rejected challenges to the ECCS design criteria established by Commis-sicn regulation. See e.c., Commonwealth Edison Company (Zion S t'ation , Units 1 & 2) ALAB-226, 8 A.E.C. 381, 402 (1974) and cases cited therein; Consolidated Edison Company (Indian Point Station, Unit No. 2) ALAS-188, 7 A.E.C. 323, 330-31 & nn. 27-28 (1974). It has been widely assumed that similar treatment would be accorded to attacks on the Commission's companion reg-ulation on hydrogen control design criteria.

Applicants and licensees have, of course been aware of a mechanism in the Commission's Rules of Practice (10 CFR 2.758)' which permits a waiver of or exception to Ithe Commis-sion's regulations. This could occur, however, only in special circumstances and by concurrence of both the Licensing Board and the Ccmmission. In contrast, the Commission's decisien in CLI-80-16 would permit any intervening party, without special l

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approval by the Licensing Board or Commission, to inject in any individual licensing proceeding the adequacy of a design feature covered by Commission regulation simply by claiming a credible sequence of events (including operator action or inaction) which challenges the adequacy of that design feature and which may lead to accident doses more severe than Part 100.

Part 100 is concerned with reactor siting criteria, not with plant design. It is concerned with maximum credible accidents only for purposes of establishing suitable exclu-sion areas and low population zones. Section 100.11(a) , fn.l.

It was never intended as e vehicle for challenging the valid-ity of other Commission regulations whose very purpose is to establish design criteria which bound the accident events de-termined by the Commission through rulemaking proceedings to be credible.

Licensee particularly disagrees with the Commission's reliance on the Court of Appeals decision in Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974). That deci-1 sion contradicts rather than supports the Commission's ruling l in this proceeding. In that case UCS contended that the maxi-mum accident which should have been considered in the Pilgrim I operating . ,ense proceeding was a core melt acccmpanied by a breach of containment. The Court of Appeals sustained the l Licensing Board's ruling that the contention was an improper challenge to the AEC's interim ECCS acceptance criteria "for I

the simple reason that the accident UCS wculd postulate could only occur upon failure of the ECCS. If the criteria are met, the ECCS is presumed to be effective, in which case a LdCA would not escalate into a meltdown of the fuel core." Id at 1089. The Court expressly rej ected UCS ' reliance on Section r

100. ll(a) of Part 100 as a basis for the contention. While acknowledging that conformance with the interim acceptance criteria does not establish compliance with Part 100, the Court concluded:

"It was open to petitioner to challenge the manner in which the Staff performed this site criteria analysis, but that would raise a question quite different from the maximum credible accident for purposes of analyzing ECCS performance.

The AEC has chosen to employ a most con-servative (drastic) assumption in deter-mining site suitability because site selection is the most critical decision.

Once a sine 'has been approved, however, it is entitled to indulge more realistic assumptions, such as the assumption that an ECCS meeting the IAC will work effec-tively. That assumption may be wrong, but the forum for challenging it was correctly held not to be the licensing hearing but the rule making." (Id at 1090]

Thus the Court of Appeals rejected precisely the proposition espoused in CLI-80-16, i.e. that Part 100 could be used as a vehicle for bypassing other Cc= mission regulations. bounding accident events which need be considered in licensing proceed-ings.

Thus if the Commission adheres to its position that i

post-accident hydrogen control should be considered in the TMI-1 restar: hearing, it should do so by waiving or making an exception to the 10 CFR 50.44 hydrogen design basis a's-sumptions and not by distorting the intended purpose of Part 100. Such a waiver or exception need not entail the dire consequences assumed in CLI-80-16, namely that "[u]nder those portions of 50.44 that would remain, and under 10 CFR Part 50, Appendix A, General Design Criterion 50, the evaluation would need to assume that a loss-of-coclant accident is certain to occur, that any hydrogen generated is certain to burn, and that the containment is certain to fail at pressures in excess of design pressure." It is unclear to Licensee on what basis the Commission concludes that these consequences would neces-sarily flow from a waiver or exception. The simple answer, however, is that in any event the Commission can in its order direct a different result by permitting the Licensing Board to make its own evaluation of these occurrences. ,

Under a waiver of or exception to 10 CFR 50.44, and with suitable instruction from the Ccanission, the Licensing Board would apply to the issue of hydrogen control the conven-tional standard under the Atomic Energy Act and Commission regulations as to whether the design of TMI-1, including mod-ifications proposed by Licensee in connection.with the restart hearing,- provides reasonable assurance that the public health and safety.will not be endangered. Based on the evidence presented in the restart hearing, the Board would consider whether there remains a credible sequence of accident events which would lead to the generation of substantial quantities of hydrogen and, if so, whether potential consequences of such generation are such as to require hydrogen control mea-

. s2res pending completion of the Commission's impending rule-making proceeding.

Respectfully submitted, j i

SHAW, PITTMAN, POTTS & TROWBRIDGE l l

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,d S/ Gdorg'eF. Trowbridge!

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Dated: June 24, 1980 1

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UNITED STATES OF AMERICA t!SNRO ,,

NUCLEAR REGULATORY COMMISSION t JUN 2 419T

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METROPOLITAN EDISON COMPANY ) Docket No. 50-289

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I CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to UCS' Motion for Reconsideration of CLI-80-16," dated June 24, 1980, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 24th day of June, 1980, and that copies of said Licensee's Re-sponse have on the same day been delivered by hand to the fol-lowing: I Chairman John F. Ahearne Commissioner Victor Gilinsky Commissioner Richard T. Kennedy Commissioner Joseph M. Hendrie Commissioner Peter A. Bradford Samuel J. Chilk, Secretary Leonard Bickwit, General Counsel M

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- N GeIrgeF. Trowbridge[

Dated: June 24, 1980

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MICROPOLITAN EDISON CCMPANY ) Docket No. 50-289

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SERVICE LIST Ivan W. Smith, Esquire John A. Levin, Esquire Chairman Assistant Counsel Atcmic Safety and Licensing Pennsylvania Public Utility Ceca Board Panel Post Office Sex 3265 U.S. Nuclear Regulatory Cc= mission Earrisburg, Pennsylvania 17120 Washington, D.C. 20555 '

Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atomic Safety and Licensing 505 Executive Ecuse 3 card Panel Pes: Office Box 2357 E81 West Outer Drive Harrisburg, Pennsylvania 17120 Cak Ridge, Cennessee 37830 John E. Minnich Dr. Linda W. Little Chairman, Dauphin County Board Acc=ic Safety and Licensing of Commissioners 3 card Panel Dauphin County Courthouse 5000 Hermitage Drive Front and Market Streets Raleigh, North Carolina 27612 Harrisburg, Pennsylvania 17101 James R. Tourtellotte, Esquire (4) Walter W. Cohen, Esquire Office of the Executive Legal Director Consumer Advocate U. S. Nuclear Regulatory Cc= mission Office of Consumer Advccate Washington, D.C. 20555 14th Flecr, Strawbery Square Harrisbur:, Pennsv.ivania 17127 Decketing and Service Section (21)

Office of the Secretary U. S. Nuclear Regulatory Cermission Washington, D.C. 20555

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2320 Scrth Second Stree: Shelden, Harmen & Weiss Harrisburg, Pennsylvania 17110 1725 Iye Street, N.W., Suite 506 Washington, D.C. 20006 Cheodcre A. Adler, Isquire Wideff Reager Selkowitz & Adler Robert-Q. Pollard

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Harrisburg, Pennsylvania 17103 Saltimore, Maryland 21218 Illyn R. Weiss, Isc.uire Chauncey Kepford . ..

A:Corney for the Union of Concerned J uc. . . .:.t.-  :. . Jo.nnsruc Scientists Environmental Coalition on Shelden, Ha_=cn & Weiss .. Nuclear Power 1725 Iye Street, N.W., Suite 506 433 Orlando Avenue Washington, D.C. 20006 State College, Pennsylvania 168C Steven C. Shelly ~

Marvin I. Lewis 304 South Marke Street 6504 3radford Terrace Mechanicsburg, Pennsylvania'~ ~TT055 Philadelphia, Pennsylvania 19149 Gail 3radford Marjorie M. Aamodt Holly S. Keck R. D. 5

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