ML19345B745
| ML19345B745 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 11/26/1980 |
| From: | Axelrad M, Rachel Johnson LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PORTLAND GENERAL ELECTRIC CO. |
| To: | |
| Shared Package | |
| ML19345B742 | List: |
| References | |
| TAC-13152, NUDOCS 8012020450 | |
| Download: ML19345B745 (28) | |
Text
..
9 -
s V
-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC'
)
Docket No. 50-344
. COMPANY, et al.
)
(Control Building Proceeding)
~~
)
(Trojan Nuclear Plant)
)
LICENSEE'S.BRIEF IN OPPOSITION TO EXCEPTIONS FILED BY THE STATE OF OREGON November 26, 1980 RONALD W.
JOHNSON, ESQ.
Assistant General Counsel Portland General Electric Company 121 S.W. Salmon Street Portland, Oregon 97204 Telephone: -(503)'220-3000 MAURICE AXELRAD, ESQ.
ALBERT V.-CARR, JR, ESQ.
Lowenstein, Newman, Reis &
Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Telephone: (202) 862-8400
\\
L 8012020
<h
~
o v5 t-x,.
- - i E
ThBLE-OF; CONTENTS
.Page L
I.
Introduction and Background.... -,...... -, -..
1.
1 II. - Oregon's~Brief on Exceptions 9
, III. Argument.in Opposition to Exceptions 13 IV.
Conclusion 22 3
i 4
4 I
v i
f i -
1 4
4 L
4 4
~l
(
1
- j
.(.
i i
.4...-
.--c...-
, +.
,-,,-w 3_,,-..,~~r.
- -,. -.----, + -
m,
.., m
- ii -
TABLE OF AUTHORITIES CITED Page AEC AND NRC ADJUDICATIONS:
General Electric-Co. (Vallecitos Boiling Water Reactor), 1 AEC 541 (1960).
15 Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 833 (1973).
13 Northern Indiana-Public Service Co. (Bailly Generating Station), ALAB-207, 7 AEC 957 (1974).
13 Portland General Electric Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717 (1978).
2, 3
Portland General Electric Co. (Trojan ~ Nuclear Plan t), ALAB-534, 9 NRC 287 (1979) 2 Portland General Electric Co. (Trojan Nuclear Plant), LBP-80-20, 12 NRC (July 11, 1980).
2, 3, 4, 7, 11 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station), ALAB-461, 7 NRC 313, 315 13 Tennessee Valley Authority (Hartsville Nuclear Plant), 7 NRC 341, 370 13 Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-5 7 8, 11 NRC 189,'214-18'(1979).
17 REGULATIONS:
10 C.F.R. Part 50 5 50.59 3,
5, 6,
9, 10, 11, 12, 13, 14, 15, 16, 20
' S 50.59 (a).
15 5 50.59(b).
5, 9 d
- lii -
REGULATIONS,:
10 C.F.R. Part 2 S 2.715 (c) 13 Federal Register 26 Fed. Reg. 3,030.
15 27 Fed. Reg. 5,491.
15 43 Fed.. Reg. 23,768 1
45 Fed. Reg. 45,916-17.
21,22 OTHER:
PGE-1020 " Report on Design Modifications for the Trojan Control Building".
2, 3,
16 i
i 4
.4 ar
.~,i,
,w-
,:4 r.~,
y
.e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC
)
COMPANY, et al.
)
Docket No. 50-344
)
(Control Building (Trojan Nuclear Plant)
)
Proceeding)
LICENSEE'S BRIEF IN OPPOSITION TO EXCEPTIONS FILED BY THE STATE OF OREGON Portland General Electric Company (" Licensee") hereby files its Brief in opposition to the " State of Oregon's Brief In Support Of Its Exceptions To The Initial Decision And Order Regarding Motion By State Of Oregon For Reconsideration Of Initial Decision."
I INTRODUCTION AND BACKGROUND This proceeding arose from the Commission's Order for Modification of License, dated May 26, 1978.
43 Fed. Reg.
23,768'(1978).
That order discussed the discovery of the design deficiency that led.to the determination by the NRC that the walls of the Control Building of the Trojan Nuclear Plant-(the Plant) did r.ot fully satisfy certain technical specifications concerning seismic design criteria, directed that modifications lue performed to bring the Control Build-ing into substantial compliance with the-requirements-of
' Operating License NPF-1, and authorized operation of the Plant prior to approval and completion of the required
. modifications subject to certain conditions.
The order provided an opportunity for a hearing prior to its effec-tive date, and limited the iss~es to be considered at any u
such hearing to (a) whether interim operation prior to the modifications required by the order should be permitted, and (b) whether the scope and timeliness of the required modifications are adequate from a safety standpoint.
The first issue was heard and dealt with by the Atomic Safety and Licensing Board (Licensing Board) in its Partial Initial i
Decision.
Portland General Electric Co. (Trojan Nuclear Plan t), LBP-78-40, 8 NRC 717 (1978).
That Partial Initial Decision was reviewed and approved by the Atomic Safety and Licensing Appeal Board (Appeal Board).
Portland General Electric Co. (Trojan Nuclear Plant), ALAB 534, 9 NRC 287 (1979).
The second issue--whether the reope and timeliness of the proposed modifications required to bring the Plant into substantial compliance with the Operating License are adequate from a safety standpoint--was the subject of a lengthy review process which began in January of 1979 with the filing of PGE-1020, " Report on Design Modifications for the Trojan Control Building" (Licensee's Exh. 24) and culminated in an Initial Decision' issued by the Licensing Board.- Portland General Electric Co. (Trojan Nuclear Plant),
LBP-80-20, 12:NRC (July 11, 1980).
In its Initial
. Decision, the Licensing Board found that the proposed modifica-tions to the Plant's Control Build.ing satisfied the criteria set out in the Commission's May 26, 1978 order, in that those modifications were adequate to bring the Control Building into compliance with Technical Specification 5.7.1, and that there is reasonable assurance that the major part of the modification work could be carried out while the 1/
Plant is operating.~ (Initial Decision, slip op, at 54-55).
The Licensing Board authorized the Director of Nuclear Reactor Regulation to issue the appropriate license amend-ment to permit Licensee to proceed with the modification The Board ordered that such amendment be subject program.
to certain conditions.
First, the modification program was to be accomplished in accordance with PGE-1020, as re-i vised (March 31, 1979), and as supplemented by Licensee's i
2/
Exh. 27.~~ The Licensing Board specifically provided that any changes or deviations trom the foregoing documents could be made only in accordance with the provisions of 10 CFR S 50.59.
-1/
For part of the modification weck--the installation of steel plate No. 8--the Plant must be in a cold shut-down condition from the time that plate No.
8 is lifted from its transporter until it has been attached to the wall in its final position.
Initial Decision, slip.
on. at 57-58 (License condition. (b)).
-2/
Licensee's Exh. 27 (" Licensee's Testimony on Matters Other Than -Structural-Adequacy of the Modified Complex" (March 17,1980)) described in detail the modifications.
and the construction work necessary tc implement the modifications, and evaluated the impacts of that con-struction. work on the operation of the Plant.
. In addition, the Board ordered that the modification program be subject to twenty specific license conditions which im-posed limitations and/or requirements on performance of the modification work.
(Initial Decision, slip no. at 56-57). 2/
On July 23, 1980 the State of Oregon (Oregon) filed with the Licensing Board a " Motion for R1 consideration of the Initial Decision" in which it asked the Licensing Board to reconsider, in part, its Initial Decision to furnish the basis for the Board's reasoning in rejecting certain proposed findings submitted by Oregon.
On September 4, 1980 the Licensing Board issued an order in which it set forth its reasons for rejecting Oregon's proposed license condi-tions (" Order Regarding Motion by State of Oregon for Re-consideration of Initial Decision," hereafter " Sept.
4 Order").
On September 23, Oregon filed its Exceptions, and on October 22, 1980 filed the " State of Oregon's Brief in Support of its Exceptions to the Initial Decision and Order Regarding Motion by State of Oregon for Prconsidera-tion of Initial Decision" (Oregon's Brief).
The relief Oregon seeks on appeal is to have the Appeal Board review the record in this proceeding, substitute its judgment for that of the Licensing Board, and impose certain conditions on the license amendment which the Licensing Board, 3/
As reflected in the Licensing Board's August 27, 1980 Order clarifying its Initia_ Decision (Order, slip op.
at 3, 6-7), a number of supplemental documents (specified correspondence, testimony, and answers to questions and interrogatories) are also treated for regulatory purposes as the equivalent of the _FSAR.
. in issuing the Initial Decision, considered and rejected (Oregon's Brief, p.
2).
In its proposed findings, Oregon urged the Licensing Board to condition any. license amendment which it authorized to require that (1) any report of deviations or changes re-quired by 10 CFR S 50.59(b) be submitted on an accelerated basis, rather than annually as otherwise required (Oregon's requested condition would have required submittal of reports prior to the implementation of such changes, or in some in-stances within.14 days of the decision to make such changes);
and (2) Licensee submit to NRC, prior to implementation, its evalcations to determine whether changes to piping systems are~necessary to maintain their seismic qualifica-tions before structural modifications are made.
(" State of Oregon's Proposed. Findings of Fact and Conclusions of Law Concerning Design Modifications for the Trojan Control Building" (May 19,1980) pp. 4-5). 1/
4/
Oregon's first proposed license condition was that
~
Licensee's proposed Condition (1) (Condition (1) in the Initial Decision) be. amended by adding the following statement.after the sentence "Any deviations or changes from the foregoing documents shall.be accomplished Pursuant [ sic) to 10 CFR 50.59.":
Reports required by 10 CFR 50.59(b) shall be made to the NRC for information in accordance with the following schedule:
(a)
Any deviations or changes which re-quire or cause the Licensee to perform calcula-tions to ensure compliance with the criteria of~ Trojan Operating License, Appendix A, Para-graph 5.7.2.2 (per Licensee's proposed condi-tions 2 (a)) shall be reported prior to commence-ment of the deviations'or changes.
(Footnote continued on next page)
~ Licensee opposed imposition ct the first condition on the grounds that there had been no reason shown for accelerated reporting, and that in the circumstances of this proceeding accelerated reporting ~under Section 50.59 constitutes an unwarranted burden on the Licensee.
Licensee opposed im-position of the second condition on the grounds that there was no reason for Licensee to submit to NRC its evalua-tions for changes to piping systems necessary to maintain their seismic qualification before structural modifications are made, particularly since by the time of the evidentiary hearing those evaluations had been performed and the necer~
sary work was substantially complete.
(" Licensee's Response to the Proposed Findings of Fact and Conclusions of Law filed by the NRC Staff and the State of Oregon" (May 29, 1980) pp. 6-11).
4/
(Footnote continued from previous page)
(b)
All other deviations or changes shall be reported within fourteen (14) days after the Licensee initially decides to im-plement them.
(c)
A copy of all reports submitted to the NRC pursuant to 10 CFR 50.59 shall be sent to the Office of Nuclear Reactor Regula-tion.
Oregon's second proposed license condition was to add a sentence to Licensee's proposed Condition (1) (q) (Con-dition (q) in the Initial Decision) after the sentence "Any changes to piping systems necessary to ensure that the condition is met shall be performed before the structural modifications are made.":
The evaluations to determine whethe" i
i such changes are required shall be submitted to the NRC' Office of Nuclear Reactor Regula-i
-tion for information prior to implementation, t
, In its Initial Decision the Licensing Board rejected t.:e State's proposed conditions (Initial Decision, slip op, at 54), thougn it did not discuss the basis for such rejec-tion.
Upon the State's Motion for Reconsideration, the Board reaffirmed that rejection in its September 4 Order, and explained its reasoning.
Specifically, the Licensing Board, with respect to Oregon's first recommended condition (accelerated reporting) explained that Oregon had not, in either its direct evidence or in its cross-examination, offered any evidence as to the necessity or reasonableness of accelerated reporting.
In fact, as the Board noted, the " slight evidence.
. on thi_ matter indicates that accelerated reporting is not necessary."
Sept. 4 Order, p. 3 (emphasis added; footnote omitted).
The Board further noted that in the many months of review, in its direct evidence, and during its participa-tion in cross-examination during many days of trial, "Ortron had never presented an issue or suggestion of a contention as to accelerated reporting.
(Sept. 4 Order, pp. 3-4).
In light of the burden which would be imposed on Licensee, and in light of the fact there was no showing by Oregon of any need for accelerated report-ing, the Board declined to adopt Oregon's first proposed condition.
(Id.)
With respect to Oregon's second proposed condition, the Licensing Board pointed out (though it noted that it
. was not-clear that Oregon sought to raise such issue in its Motion for Reconside' ration) that the rectiisite analysis and evaluations were completed prior to the evidentiary hear-ing, and,' Oregon having failed to show any reason such l
evaluations should be submitted, there was no reason to l
impose cuch a condition.
(Sept. 4 Order, pp. 4-5).
Oregon filed nine exceptions to the Initial Decision,
(" State of Oregon's Amended Exceptions to the Initial Decision" l
(September' 23, 1980)).
Oregon's exceptions included that the i
Board erred in not imposing Oregon's proposed license con-ditions to require (1) accelerated reporting of design changes i
ard (2) completion of seismic evaluations relating to piping l
l supports.
(Exceptions 1,
- 9).
l Oregon's other exceptions elaborate on those points.-
Thus, Oregon claims that (1) the Board erred when it found l
l l
that there was no evidence in the record to support the
{
necessity for accelerated reporting, and that what evidence
[
l wss in the record supports the finding that such reporting is not necessary (Exceptions 2-3, 7) ; (2) the Board erred when it found.that there is.nothing unique in this proceed-ing which requires other than annual NRC review, and that under the circumstances of this o.oceeding accelerated reporting would be unduly burdensome.on the Licensee (Ex-ceptions 4 and 5); (3). the Board erred when it found that Oregon had never presented an issue or suggestion lif a l
l
. contention as to. accelerated reporting (Exception 6); and
-(4) the Board erred when it found no showing by Oregon of any reasons to submit evaluations of changes in piping supports to the NRC Staff (Exception 8).
II OREGON'S BRIEF ON EXCEPTIONS It should be emphasized that, notwithstanding Oregon's exceptions, " Oregon does not oppose the design of the modifi-cations (for the Control Building]."
(Oregon's Bri7f, p.
1).
However, Oregon takes the position that the public health and safety require accelerated reporting under 10 CFR 50.59(b) of changes by the licensee in the Control Building modifications to the NRC Staff ex-perts who participated in designing the modifications and who are technically quali-fied to conduct a meaningful review of the safety determinations of the licensee.
In contrase, the annual reporting of changes approved by the Board under 10 CFR 50.59 provides no mechanism for a timely review of the licensee's decisions on a project that will be substantially completed by mid 1981.
(Oregon's Brief, p. 2).
To support its assertion that the circumstances of this proceeding require accelerated reporting under Section 50.59, and that the Licensing Board committed error in not imposing its proposed condition, Oregon points out that the public
-health and safety can be directly affected, not only'with respect-to the_ design of the modification work, but also with respect to.the performance of the work itself.
(Oregon's Brief, pp. 5-6).
Oregon further explains that the design of the
e '
f
, modification was a complex undertaking which required " state of the art" design and engineering, and an extensive. review by the-NRC Staff, Licensee's consultants and Oregon.
As Oregon correctly notes, during the course of that review some differences in engineering judgment arose between the aicensee and the NRC Staff.
Though Oregon acknowledges that any such differences were resolved prior to completion of the evidentiary hearings, it nevertheless contends that some aspects of the modification program "are not finalized" 5/
and thus may be subject to change.-
(Oregon's Brief, pp.
6-9).
Thus, Oregon argues that because the Board refused to adopt its proposed condition with respect to accelerated reporting, Licensee is now permitted by Section 50.59 uni-laterally "to change the design of the modification or construction plans that were approved by the Licer. sing Board and which were subject to the scrutiny of the parties in this proceeding."
(Oregon's Brief, p.
- 9).
i Moreover, Oregon contende that because Licensee's reports of its determinations pu.suant to Section 50.59 need P
-5/
Oregon asserts that "certain analyses, including review of the seismic qualification of safety related equipment due to the widened response spectra, certain. details of construction plans and the modification design and other matters are not finalized and may be subject to changes."
(Oregen's Brief, p. 9). Oregon supports its assertion with a number of record references.
(Licensee's Exh. 28, p. 64, Staff Exh. 15A, pp. 25-27,'Tr. 3727,.
Tr. 4373,-Tr. 4647, Tr. 4622-27, Tr. 4750-53, Tr. 4789).
To begin,_the record references cited by Oregon relate only to seismic qualification of safety-related equipment, (Footnote continued on next page)
~
. only be filed annually with the NRC's regional office, there will be no timely review of such determination'by'the members 5/
(Footnote continued from previous page) to the " wall problem",'and to matters involving. con-i struction sequence.- Consequently, Oregon's other assertions regarding "certain details of construction-i plans and the modification design and other matters" must be disregarded.
With respect ~to the seismic qualification of safety-related. equipment, the record clearly shows that by the l
time of-the evidentiary hearing. the revised _ response spectra had been established, and the general methodology used to deternine seismic qualification of safety-related equipment, components, and piping had been described.
(Licensee's-Exh. 28, pp. 64-66; Staff Exh.
15A, pp. 25-27; Tr. 4372-73,.Tr. 4748-53).
Moreover,
prior to the evidentiary hearing the evaluations necessary to. identify the piping systems, equipment and components which had to be changed prior to the modification work had been performed.
(See Tr. 3726-27; see also p. 13
- n. 6 infra). Thus, for the-reasons explained above,-
Oregon's assertion that review of seismic qualification of safety-related equipment.may be subject to change is not correct.
Two of. oregon's record citations also relate to the. " wall 3
(
problem" (Tr. 4748-53, 4789) explained in the Initial Decision at pp. 11-12, 30-31, 35-36.-
It is true that i'
I at the time of the evidentiary hearings. there remained, with respect to.the " wall problem",
some matters to be j-resolved by. Licensee and the NRC Staff prior to resump-i tion of Plant' operation.
However, the Board concl0ded,-
based on the record before it, that the " wall problem i
has~been explored adequately."
(Initial Decision, slip op. at 135-3 6). With. respect to Oregon's argument the key element is that the Staff was involved-in reviewing 4
all aspects of the " wall' problem" from its. inception to its resolution.1 Thus~ the. problems of which Oregon com-2 plains with respect to S 50.59 do'not exist here.
Finally,'one of Oregon's record citations' relates to the issue of the sequence and timing of column exposures-(to include new concrete at' lower elevations reaching certain' a
. minimum strengths prior tol exposure of columns at-hicher elevations).
-(Tr. 4622-27).
As-is explained later (see pp. 18-19 infra) such sequencefand timing are the subject-of License Condition (t) and thus cannot be changed with-out prior NRC Staff approval.
4 i
s of the NRC Staff who participated in the review of the-modifi-j
=ations.
(Oregon's Brief, pp. 9-11).
Therefore, contends Gregon, the " Initial Decision leaves changes in what has been reviewed solely-up to the licensee's discretion."
(Oregon's Brief, p. 10).
Though Oregon concedes that the NRC Staff will eventually review Licensee's submittals under Section 50.59, it argues that such review "is not sufficient to protect the public health and safety when, as here, safety issues such as reduction of seismic capability during construction are at j
issue."
(Oregon's Brief, p.
10; emphasis in original).
i i
Oregon emphasizes that it is not asking that the NRC Staff approve in advance Licensee's proposed changes.
Instead,-
it believes that if the reports are filed on an accelerated I
basis, the Staff could conduct-a " meaningful review" before the " changes in the modification were implemented."
Oregon further maintains that, contrary to the Licensing Board's view, Licensee will not be unduly burdened if such a report-ing requirement is imposed.
Oregon's view is that such an obligation would entail no more than an acceleraticin of Licensee's existing require:nents under Section 50.E9.
(Oregon's Brief, pp. 11-12).
Finally, Oregon supports its assertion that the Licens-ing Board erred in stating that it had not raised'the issue of accelerated reporting until its submittal of_its-proposed findings by' arguing.that, as a participant under 10 CFR S l,
2.715(c) it is not required to take a position on any issue.
Nevertheless, Oregon claims that through its crc: 3-examina-tion it made the Licensing Board aware of its concern with respect to accelerated reporting and in fact elicited suffi-eient evidence through cross-examination to show the neces-sity for such reporting.
(Oregon's Brief, pp. 12-13).
III ARGUMENT IN OPPOSITION TO EXCEPTIONS Licensee would like, at the outset, to clarify the precise question which is before this Appeal Board for review.6/
The issue is not, as Oregon seems to believe, that in the absence of an accelerated reporting requirement under 10 CFR S 50.59 the Initial Decision will allow Licensee to change unilaterally, without either prior approval or review by 6/
Though Oregon excepted to the Licensing Board's rejection of its proposal to require that Licensee submit to NRC, prior to implementation, its evaluations to determine whether changes to piping systems are necessary to maintain their seismic qualifications before the modi-fication work is undertaken (Exceptions 1,
- 8), it did not address that point in its Brief.
Thus, Licensee, recog-nizing that.any exceptions not briefed are deemed abandoned and will not be considered by the Appeal Board (See, e.g., Public Service Co. of Indiana (Marble Hill Nuclear Generating Station), ALAB-461, 7 NRC 313, 315 (1978); Tennessee Valley Authority (Hartsville Nuclear Plant), ALAB-463, 7 NRC 341, 370 (1978); Northern Indiana Public Service Co. (Bailly Generating Station), ALAB-207, 7 AEC 957 (1974); Long Island Lichting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, has not addressed the point raised in those exceptions.833 (1973)),
Nevertheless, Licensee points out that,for the information of the Appeal Board, hearings were held Licensee had already performed theby the time the e evaluations to identify the piping systens, equipment and components which.had to be changed prior to the modifica-tion work to maintain their seismic qualification.
(Anderson)).
(Tr.
3726-27 i
the NRC Staff "the design of the modifications or construction plans" that have been reviewed and agreed on by the Partica and approved by the Licensing Board.
(Oregon's Brief, p.
9).
Instead, the issue presented by Oregon's Exceptions and its Brief is whether Oregon has shown, based on the record in this proceeding, that the design and performance of the modification work present a special situation which justifies a departure from the annual reporting requirements in 10 CFR S 50.59.2/
In Licensee's view, Oregon has not made such a showing.
The Commission's regulations (including Section 50.59) and the license conditions imposed by the Licensing Board in its Initial Decision / place significant constraints on the 8
Licensee's ability to make changes in the design and perfor-
~
mance of the modification work.
Indeed, the portions of the record that Gregon cites as support for its ascertions that accelerated reporting is necessary, involve, without exception, matters which the Licensing Board has made subject to specific-7/
Though -the wording of Oregon's proposed license condition is unclear, Oregon apparently intends that its proposed accelerated reporting under S 50.59 apply only to the modification work, and not to other unrelated reports under 10 CFR S 50.59
- See, e.g.,
Oregon's Brief, pp. 9-10.
Certainly, in the event.the' Appeal Board were to overturn the Licensing Board and impose Oregon's proposed condition, the wording of any added condition should clearly reflect that accelerated report-ing applies only to the modification work.
8/
See discussion, at pp.
3-4, supra.
O 1
l license conditions.S/
Of-course, Licensee cannot conduct any activity which does not conform with any license conditions unless Licensee first applies for and obtains a license-amend-ment from the NRC.
In 10 CFR S 50.59 the Commission has adopted a deliberate i
procedure which allows the holder of an operating license to make certain minor changes in his facility or procedures with-out the necessity for a prior NRC review and approval.
(26 Fed.
Reg. 3,030 (1961), 27 Fed. Reg. 5,491.(1962); General Electric i
Company (Vallecitos Boiling Water Reactor) 1 AEC 541 (1960)).
However, the authority is a limited one.
Such changes may be mcde only if they do not exceed certain threshold criteria, that is, so long as they do not involve either a change in a l
technical specification or an unreviewed safety question.
i l
An unreviewed safety question exists if (1) the pro-bability of occ.rrence or th'e consequences of an accident or malfunction of equipment important to safety previously evaluated in the safety analysis report may be increased; I
cr (ii) if a possibility for an accident or malfunction of a different type than any evaluated previously in the safety analysis report may be created; or (iii) if the margin of safety as defined in the basis for any technical ~ specification is reduced.
(10 CFR S 50.59(a)).
And by the same token that j
a licensee is entrusted to own and operate a nuclear plant, f
he also is presumed to be capable of identifying changes
~
9/
See discussion, at pp. 18-19, 19 n.13, infra.
I
.that do not' involve unreviewed safety questions, make such changes, record the bases 'therefore, and submit them as part lof the annual report to the NRC of'similar other determinations p
under 10 CFR S.50.59.
Clearly, Licensee, contrary to Oregon's assertions, is i.
significantly limited in its: ability to make changes in the modification or work plans without prior NRC Staff approval.
First, Licensee may not fail to conform with any of tha twenty license conditions which specify precisely how certain F
of the ~ modification work -must be performed without applying 4
for and obtaining a license amendment, which, of course, requires prior NRC review.
Second, Licensee may not make any changes'in the modification program-described in PGE-1020 and Licensee's Exh. 27 unless, in accordance with j
Section 50.5'9, such changes do not involve sa unreviewed safety question.
Oregon has made no showing of any reason why Licensee.is_not. capable of determining whether in unreviewed safety question exists, thus necessitating review of such determination by the NRC Staff on other than an annual basis.
In essence, all that Oregon has said in' support of its proposed condition is that this is a complex case which deals with-issues which have implications for-the health and safety of the public.- Therefore, maintains oregon, any change which Licensee makes'in accordance with Section 50.59 should be reported concurrently,~ and if such'a reporting procedure is 4
~
17 -
not followed, the public health and safety could be adversely affected.
However, Oregon overlooks the fact that nuclear reactors by their nature are complex.
Almost all NRC licensing proceedings involve matters which may affect the public health and safety.
Simply because a proceeding has been held which involves health and safety issues is not sufficient reason to single out the resulting licensing action for unique treatment.10/
10/
In Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-578, 11 NRC 189, 214-18 (1980) the Appeal Board ordered applicant to notify the MD.C Staff of any changes in certain internal procedures --
which had been established pursuant to a technical speci-fication -- within ten days of the time applicant finally determined such changes were to be made.
Those internal procedures specified the time within which certain monitoring data would be reported to, and analyzed by, the applicant.
Id. at 215.
The monitoring data was i
critica: to the cential issue in that case, i.e.,
settle-ment of the service water pumphouse, and Intervenor had sought to have the time period for reporting such data made part Of a technical specification.
The Appeal Board noted that coplicant-was required to comply with its internal procedures as though they were technical speci-fications, an0 thus there was no need to make the reporting data subject te a technical specification.
However, noting that those procsdures could be changed without prior NRC Staff review, the Appeal Board ordered that any change be reported to the Nh7 Staff within ten days.
Id. at 217-18.
The. situation in the instant proceeding is markedly different from that in North Anna.
As discussed above, ~
the modification work is subject to some twenty license conditions which specify how the modification work must be done (pp. 18-19 infra.)
Moreover, all the matters cited by Oregon - the proponent of accelerated reporting -
to demonstrate the need for accelerated reporting are already subje.ct to those license conditions (pp. 18-19, 19 n.13, in f ra. ).
Thus, any changes in those matters will be subject to prior NRC Staff review, a situation which did not exist with respect to the internal pro-cedures involved in North Anna.
Moreover, simply because the design of the modification in this proceeding involved, in part, " state of the art" analyses is no reason to single this matter out for speci J
.utment.
To the extent that such special considerations existed, they were accounted for by the detailed review and the extensive proceeding.11/
During the course of the review and the evidentiary hearing, it was determined that there were a number of matters involving conduct of the work which should not be changed without prior NRC Staff review.
Each of these matters was maC.e subject to license conditions.
There are twenty such conditions.
One such condition (License Condition (t)), specifically deals with the issue in which Oregon expressed the greatest interest during the review and at the hearing.
That issue is the sequence and timing of column exposures (to include new concrete at lower elevations reaching certain minimum strengths prior to exposure of columns at higher elevations) to ensure that the Complex maintains its seismic capacity at all times during the modification program.
Oregon submitted direct evidence on these matters, and Oregon, through its counsel and its expert consultant, Dr. Laursen, conducted extensive cross-examination of both Licensee's and Staff's witnesses on these matters.
License Condition'(t) assures that the sequence of column exposure will remain unchanged unless a license amendment 11/
As Oregon acknowledges, and is in fact the case, all
~~
the experts involved in this proceeding are in agree-ment on the adequacy of the design.
(Oregon's Brief, pp. 6-9).
. is applied for and granted.12/
In addition,. Oregon also expressed an interest in the way in which Licensee's fire watch patrols would carry out their duties during the modification work.
License Condition (d) was amended by Licensee to accommodate Oregon's concern.1 !
Had Oregon identified any other mattars which it deemed important, it is possible that they too would be the subject cf license conditions.
However, Oregon failed to do that.
12/ As noted (see pp. 12-13, supra) Oregon has argued that it is immaterial that it did not raise the issue of accele-rated reporting until it submitted its proposed findings.
- According to Oregon, it brought its concern with respect to changes without prior NRC Staff review to the attention of the Licensing Goard through cross-examination, and thus, presumably, the Licensing Board should accommodate Oregon's concern.
(Oregon's Brief, pp. 12-13).
The portion of the transcript which Oregon cites (Tr.
4622-27) to support its argument does precisely the opposits.
It may demonstrate that Oregon-did bring its conc rn to the attention of the Licensing Board, however.t does not demonstrate the need for acceler-ated reporting.
The subject discussed at that point in the transcript is the sequence of construction work, including the sequence and timing of column exposures, which is the subject of license condition (t).
In any event, as the Staff witness testified, there is no need for the Staff to review, prior to their implementation, minor devistions or changes from the proposed work sequence.
(Tr. 4 621-23).
13/
In addition to those specific conditions, it should be pointed out that each of the other safety issues cited by Oregon in its Brief as being of such importance that any changes made in them should be subject to-accelerated reporting under Section 50.59 are also subject to specific license conditions, e.g., "such important matters as protection of cable trays [ Conditions (c) and (e)], fire protection [ Conditions (b) and (d)], control of dust (Conditions _ (f), (h) and (p)], and seismic qualification of piping supports (Condition (q) ]. "
(Oregon's Brief, pp. 5-6).
-w--
~
v
20 -
Moreover, Oregon has failed in its Brief to identify any such matters.
Instead, Oregon simply wants at this time, in addition to the existing constraints on Licensee's ability to perform the modification work effectively, a shotgun requirement that all Section 50.59 reports which relate to the modification work be submitted on an accelerated basis.
Such action is not only unnecessary A! but would impose an undue 1
burden on Licensee.
14/
On November 24, 1980 the NRC Staff sent to the Appeal Board a copy of a letter dated October 14, 1980, from the NRC's Office of Inspection and Enforcement, Region V to Licensee.
The letter and its enclosure (" Regional Evaluation of Trojan - September 1979 through August 1980" (" Evaluation") ) set forth the results of the first Systematic Appraisal of Licensee Performance for Trojan.
As Region V stated in its letter, the Evaluation reveals areas in "which, although not of serious concern at this time" it plans to increase the frequency and/or scope of its future inspection activities.
One such recommenda-tion by the Evaluation Board is that the Staff, in the future, should' examine more closely Licensee's review processes in complying with the requirements of 10 CFR S 50.59, such examination to include the existence and adequacy of written safety evaluations for modifications to be made to facility structures, systems or components described in the FSAR (Evaluation, p.
- 2).
Licensee sees no reason, as a result of the Evaluation, to alter its position with respect to the license con-ditions recommended by Oregon.
None of the instances mentioned in the Evaluation related to performance of the Control Building modification work.
In any event, Licensee certainly will take the requisite steps to assure that its overall procedures for compliance with the requirements of Section 50.59 will fully and appropri-ately satisfy the recommendations of the Evaluation Board.
However, it is Licensee's belief that complying wi th the reconmendations set out in the Evaluation will sir: ply reinforce the adequacy of the procedures under Section 50.59 with respect to the modification work, and that the Evaluation demonstrates no need for accelerated reporting under Section 50.59 during that work.
. Licensees of the NRC are already' subject to a great number of general and special reporting requirements.
Each of these requires the application of substantial manpower, both at the working levels and at supervisory and management levels.until'an authorized official of Licensee can execute and submit a report to th'e NRC.
Licensee does not quarrel with the effort required to submit all reports which are necessary for the NRC Staff to execute properly its regulatory responsibilities.
However, Licensee should not have to comply with unnecessary requirements which will only detract from the ability of its staff and management to d3 vote the requisite 1
time and attention to their many necessary functions.
To impose such requirements would also disrupt the NRC Staff reviewers from-their other responsibilities through the implicit responsi-bility to review such reports as received rather than on a routine annual-basis.
Thus, Licensee should not be-required to submit, and the.
NRC Staff should not have to review, matters which can be handled under existing procedures with adequate protection-for the public health and safety.
This principle was specifically j
recognized by the Commission in its recent notice of proposed rulemaking resulting from its concerns as to the adverse effects I
lof the increased volume of technical specifications.
45 Fed.
1 Reg. 45,916-17 (July 8, 1980).
There, une Commission announced its intent to consider changee in the rules to reduce the un-necessary paperwork burden wtich is imposed upon the. Licensee 4
y e-
- 1
and the NRC Staff by the submittal and review of matters which provide "no significant benefit with regard to protecting the public health and safety."
Id. at 45,917.
Oregon's proposal would similarly impose unnecessary requirements without com-pensating benefits and should not be adopted.
IV CONCLUSION Licensee respectfully submits that the exceptions filed by Oregon are without merit, and requests that the Appeal Board deny Oregon's Exceptions and affirm the Initial Decision in 3
all respects.
Respectfully submitt ed, RONALD W. JOHNSON, ESQ.
Assistant General Counsel Portland General Electric Company 121.S.W. Salmon Street Portland, Oregon 97204 MAURICE AXELRAD, ESQ.
ALBERT V. CARR, JR., ESO.
Lowenstein, Newman, Reis and Axelrad 1025 Connecticut-Avenue, N.W.
Washington, D.C.
20036
. 's By.
tb h b/
s s
r y
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPL.41 BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC COMPANY, )
Docket No. 50-344 et al.
)
(Control Building
)
Proceeding)
(Trojan Nuclear Plant)
)
CERTIFICATE OF SERVICE I hereby certify that a copy of " Licensee's Brief in Opposition to Exceptions Filed by the State of Oregon" (dated November 26, 1980),
was served on the following by deposit in the United States mail, first class and postage prepaid, this 26th day of November, 19EO.
Alan S. Rosenthal, Esq., Chairman Dr. Kenneth A. McCollom, Esq.
Atomic Safety and Licensing Appeal Division of Engineering, Board Architecture and Technology U. S. Nuclear Regulatory Commission Oklahoma State University Washington, D. C.
20555 Stillwater, OK 74074 Dr. John H. Buck, Member Dr. Hugh C. Paxton Atomic Safety and Licensing Appeal 1229 - 41st Street Eoard Los Alamo 2, NM 87544 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Board Panel Dr. W. Reed Johnson, Member U.
S. Nuclear Regulatory Commission Atomic Safety and Licensing Appea)
Washington, D.
C.
20555 Board U. S. Nuclear Regulatory Commission Atomic Safety ~and Licensing Washington, D. C.
20555 Appeal Panel U. S.-Nuclear Regulatory Commission Marshall E. Miller, Esq., Chairman Washington, D. C.
20555 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Docketing and Service Section Washington,.D. C.
20555 office of the Secretary
(
U. S.. Nuclear Regulatory Commission Columbia County Courthouse Washington, D. C.
20555 Law Library, Circuit Court Room St. Helens, OR 97051-
Y a
Joseph R.. Gray, Esq.
Counsel for NRC Staff Ms. Nina Bell 3926 N. E. 12th Avenue U. S. Nuclear Regulatory. Commission Portland, OR 97212 Washington, D. C.
20555 Mr. John A. Kullberg Ronald W. Johnson, Esq.
15523 S. E. River Forest Drive Corporate Attorney Portland, OR 97222 Portland General Electric Company 121 S. W. Salmon Street Mr. David B. McCoy Portland, OR 97204 348 Hussey Lane Grants Pass, OR 97526 Frank W. Ostrander, Jr., Esq.
Assistant Attorney General State of Oregon-Ms. C. Gail Parson P.O. Box 2992 Department of Justice Kodiak, AK 99615 500 Pacific Building 520 S. W.
Yamhill Mr. Eugene Rosolie Portland, OR 97204 Coalition for Safe Power 215 S. E.
9th Avenue William Kinsey, Esq.
Portland, OR 97214 Bonneville Power Administration P.O. Box 3621 Dr. Harold I. Laursen Portland, OR 97208 152 0 N.14. 13th Corvallis, OR 97330
'. ~
l l
<t u N C (J.
' Jm, Lowenstein, Newman, Reis &
Axelrad 1025 Connecticut Avenue, NW Washington, D. C.
20036 (202) 862-8400 Dated:
November 26, 1980
-