ML20003E239
| ML20003E239 | |
| Person / Time | |
|---|---|
| Site: | McGuire, Mcguire  |
| Issue date: | 03/26/1981 |
| From: | Mcgarry J, Porter W DEBEVOISE & LIBERMAN, DUKE POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20003E241 | List: |
| References | |
| NUDOCS 8104020585 | |
| Download: ML20003E239 (9) | |
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UNITED STATES OF AMERICA 8'
1 NUCLEAR REGULATORY COMMISSION C
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In the Matter of 31/',9 [) 1 1987 Docket Nos. 50-369 DUKE POWER COMPANY U tg h'+u.).Dgg'Y/
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(William B. McGuire Nuclear Station, Units 1 and 2)
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APPLICANT'S REQUEST FOR W-ERW TCEPTION OR EXEMPTION FROM THE FULL PROVISIONS OF APPENDIX B TO 10 CFR PART 2 BACKGROUND On April 18, 1979, the Atomic Safety and Licensing Board (" Licensing
. Board") issued an Initial Decision in the captioned proceeding.
Duke Power
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Applicant is proceeding pursuant to 10 CFR SS2.758 and 50.12.
Reliance upon these sections results from both the ambiguity of the regulations and the particular subject matter of the instant request.
Section 2.758 provides a forum for seeking waiver or exception from Commissin regulations.
This section appears applicable to those situations which question whether certain matters embodied in regulation can be inquired into during an adjudicatory proceeding upon a showing of special circumstances. The subject matter of the instant motion raises a question outside the adjudicatory proceeding process, it focuses upon viz., the appellate process.
If Appendix post adjudicatory proceedings, Tdjudicatory B is viewed as part of the process, Section 2.758 is applicable.
In this regard, Section 2.758 appears to require that any motion for waiver or exception under this section be made with the Licensing Board in the first instance.
Accordingly, this document has been filed with the Licensing Board.
However, the subject matter of this motion does not appear to lend itself to Licensing Board review; rather, it ' concerns, as noted, appellate procedures to be utilized by the Commission and thus should be properly before the Commission.
It is for this reason that Applicant has also filed this document with the Commission.
Section 50.12 provides a forum for seeking an exemption from Commission regulations.
While this section appears to limit exemption requests-to regulations contained in Part 50, the matter is far from clear inasmuch as findings in this case will be r-de pursuant to Part 50, and thereafter will be the subject of Appendix B review.
Section 50.12 specifies that exemption requests are to be made with the Commission and'. for this additional reason this motion is filed with the Commission.
In sum, the proper procedure to be utilized is. ambiguous.
Applicant considers it prudent to move both the Board and the motion,g[>
Commission for relief.
Of primary importance to Applicant is expeditious consideration of this matter, for as noted in the instant Applicant anticipates Appendix B review as early as April,1981.
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2-Comoany (William B. McGuire Nuclear Station, Units i and 2), LBP-79-13, 9 NRC 489 (1979).
The Initial Decision authorized the Director of the Office of Nuclear Reactor Regulation, upon making requisite findings with respect to uncontested matters not embodied in the Initial Decision, to issue operating licenses for the two units. 9 NRC at pp. 547-8.
The Licensing Board stayed the effectiveness of the Initial Decision "until further order by the Board following the issuance of a supplement to the NRC Staff's Safety Evaluation Report ("SER") iddressing the significance of any unresolved safety issues."
Id.
On May 23,1980, the NRC Staff issued the aforementioned supplement to the SER.
Subsequently, Applicant moved the Licensing.Joard to lift the stay. In response, Intervenor, Carolina Environmental Study Group (CESG), noted its opposition and moved the Board to reopen the proceeding.
By Memorandum and Order of November 25, 1980, the Licensing Board denied Applicant's motion to lift the stay, reopened the McGuire operating license hearing, and admitted new contentions regarding the combustion of a significant hydrogen 2
release in a Westinghouse pressure suppression contamment. / The reopened hearing began on February 24, 1981, and focused on operator, equipment, and containment ' response to a TMI-type accident. The hearing concluded on March 19, 1981.
Based on an expedited schedule, all proposed findings will be filed with the Board on or before April 13, 1981. Applicant has requested pursuant to 10 CFR Part 2, Appendix A, VI (d) that the Board " render its intial decision.within 35 days after its receipt of proposed findings of fact and conclusions of law."
(TR 5239) Accordingly, an initial decision could be
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The Licensing Board also admitted emergency plan contentions which are predicated upon the breach of contamment due to the combustion of hydrogen.
Applicant and Staff have taken the position that based upon the remoteness of a breach of containment due to the combustion of hydrogen it is not necessary to address CESG's emergency plan contention.
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3 issued as early as May 18, 1981, and a full operating license could be issued in the' May 18 May 28, 1981 time frame, but for the requirements of Appendix B to 10 CFR Part 2.
(See attached Projected Schedule.) */
Appendix B to 10 CFR Part 2 temporarily suspends the "immediate effectiveness" provisions embodied in 10 CFR S 2.764 i(see 10 CFR S 2.764, note 1), and requires that an initial decision not become effective until both the Appeal Board and the Commission independently review the record of the proceeding to determine if a stay of such decision would be warranted pending appellate review.
The approximate times for such independent reviews, as set forth in Appendix B, are 60 days for the Appeal Board and 20 days for the Commission.
- Thus, pursuant to current Commission
. egulations, Applicant may not receive a full power operating licen'se for McGuire Unit I until approximately August 1981. /
If Applicant could be exempted from the requirements of Appendix B,10 CFR Part 2, or if such
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On March 24, 1981, Applicant moved the Licensing Board to grant a 35% operating license.
It is anticipated that the Licensing Board will rule on this matter prior to issuance of its initial decision on the l
reopened hearing.
Thus, it is likely that this matter will be before the Appeal Board and the Commission within the next 30 days.
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The immediate effectiveness rule provides that an initial decision directing the issuance or amendment of a
construction
- permit, construction - authorization or operating license shall be effective immediately upon issuance, absent a finding of good cause why the initial decision'should not be so treated.
10 CFR S 2.764(a).
The rule also j
provides that the NRC Staff shall issue the appropriate permit or license l
within ten days of the issuance of the initial decision directing such j
issuance'.
- j The Applicant is familiar with the delays associated with 10 CFR s
Part 2, Appendix B, in that it filed on September 30, 1980 Applicant's Motion for Summary Disposition Regarding Application for License l
Authorizing Fuel Loading, Initial Criticality, Zero Power Physics Testing l
and Low-Power Testing for McGuire Unit 1, and Request for Expedited l
Consideration.
The Atomic Safety and Licensing Board on November 25, 1980 issued a decision authorizing fuel loading, initial criticality and zero power physics testing of McGuire Unit 1.
The Nuclear Regulatory l
Commission on January 23, 1981 issued License No. NPF-9 authorizing l
fuel loading, initial criticality and zero power physics testing. In sum, l
there was a period of approximately sixty days between Atomic Safety l
and Licensing Board action and Commission action.
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4 could be waived or excepted, McGuire Unit I could be placed in operation in time to meet the summer peak load demand.
Without this unit, reserves will be alarmingly inadequate.
(See attached Affidavit of A. C. Thies.)
Pursuant to 10 CFR SS 2.758 and 50.12, Applicant respectfully requests a waiver, exception or exemption from the provisions of Appendix B to 10 8
CFR Part 2 if a favorable initial decision is rendered on the limited issues /
currently before the Licensing Board.
l This request would apply to any favorable decision issued by the McGuire Atomic Safety and Licensing Board concerning the operation of the McGuire Nuclear Station.
In the alternative, Applicant respectfully requests a partial waiver, exception or exemption from the provisions of Appendix B to 10 CFR Part 2 to eliminate the requirement for independent review by the Appeal Board of 8
the anticipated Initial Decision.
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As noted, the Licensing Board issued an initial decision on April 18, 1979.
Appeals from this decision have not been taken due to the Board's stay of the effectiveness of such decision, pending Board l
resolution of generic safety issues, an uncontested matter.
Applicant orally requested the Board at the closing session of the recently held evidentiary hearings regarding the hydrogen combustion issue, to lif t the stay, issue an order relative to generic safety issues and instruct the parties that their appellate rights have attached, thus bringing into play Appendix B.
(TR 5241)
In the event those matters can be l
reached by Appendix B review without jeopardizing the timely licensing of McGuire, Applicant does not object to such review. However, if these matters will result in protracted review, Applicant requests that the instant request for a waiver, exception or exemption be made applicable
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thereto.
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Applicant notes that by letter of March 12, 1981, to the Chairman of the Subecmmittee on Energy and Water Development of the House Committee on Appropriations, the Commission indicated that it would publish a proposed rule to modify or eliminate its suspension of the "immediate effectiveness" rule.
Such has yet to be published.
Due to the prospect of Licensing Board action on the 35% and full power license within the April - June time frame it does not appear that rulemaking l
will be completed in time to benefit McGuire.
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This request is not made out of dissatisfaction with the Appeal Board; it is simply directed toward obtaining an expeditious review which is more likely from the review of the matter by one body rather than two.
.s.
Since Applicant is concerned about a timely and final decision on the operation of a vitally needed reactor, proposed findings of fact and conclusions of law will be filed concurrently with the Licensing Board, the Appeal Board and the Commission to facilitate review.
LEGAL STANDARD _
The legal requirements relating to waiver, exception and exemption from Commission regulations are set forth in 10 CFR SS 2.758 and 50.12.
In short, for Applicant to be entitled to a waiver, exception or exemption from the provisions of Appendix B to 10 CFR Part 2, it must be established that special circumstances with respect to the proceeding exist such that application of the pertinent Appendix B provisions would not serve the purposes for which Appendix B was adopted.
DISCUSSION Subsequent to the TMI accident, the Commission deter-ined that pending the results of TMI-related investigations, and Commission guidance resulting therefrom, new licenses should not be issued except after direct action by the Commission itself. 44 Fed. R_eg. 58559 (October 10, 1979).
Thereafter, the Commission established the mechanism for such direct action by temporarily suspending the immediate effectiveness" provisions of 10 CFR S 2.764 and i
instituting in place thereof Appendix B to 10 CFR - Part 2.
44 Fed. R_eg.
65049 (November 9, 1979). -*/
This continuation of Appendix B, conflicts with the underlying goal of the Commission of " eliminating unnecessary burdens upon. those being regulated, and of reducing as far as possible the
. economic cost of Government regulation. "
43 Fed. Rg. 34358 (August 3, 1978).
In suspending the "immediate effectiveness" rule, the Commission
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Applicant maintains that TMI-related investigations have resulted in definitive guidance and requirements such that the underlying purpose of the temporary suspension no longer exists.
announced that it "has adopted this approach because it achieves the objecti've of increased Commission supervision of licensing actions while...
avoiding undue delay and duplication of effort by adjudicators and parties...." 44 Fed. Reg. 65050 (November 9,1979).
Applicant submits that the special circumstances regarding the nature and status of this proceeding are such that implementation of the provisions of Appendix B in' this case (i.e., lengthy review by the Appeal Board and the Commission) would not serve to promote the objectives of Appendix B, Q., increased Commission supervision while avoiding undue delay and duplication of effort.
The application of Appendix B to McGuire contributes to unnecessary delay and costs.
(See attached Affidavit of A. C. Thies.)
With regard to the nature and status of this proceeding, Applican't notes that this is a reopened proceeding.
It is clear that in such an instance, Applicant and the public are entitled to as expeditious conclusion of the proceeding as possible (See Northern Indiana Public Service Company (Bailly Generating Station Nuclear -1) CLI-74-39, 8 AEC 631 (1974)). Indeed, in this particular instance, Applicant will be in serious need of a full power license this summer, in order to have minimally adequate reserves for summer peak so load demand.
f If McGuire is not operational during the " waiting period" caused by Appendix B, the results will be an additional cost to the public of l
approximately - $500,000 per
- day, and the use of less efficient and i
environmentally less acceptable sources of electrical generation.
(See l
attached Affidavit of A. C. Thies.)
i zof As noted, a 35% license is necessary on or about May 15, 1981.
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In addition, the reopened proceeding basically involves one limited issue, M., hydrogen generation in an ice condenser containment. This issue is not new to the Commission.
The Commission has held many meetings regarding 11 hydrogen generation in, inter alia, ice condenser containments.
/ Indeed, on September 17, 1980 the Commission issued a full power operating license to Sequoyah, an ice condenser plant, after thoroughly analyzing this precise 12 issur.;; it confirmed this action -on January 27, 1981.
/ In short, the issue of hydrogen generation in ice condenser containments is well known to the Commission.
It should be recognized that McGuire is in a unique position relative to the impact of Appendix B.
The Licensing Board had issued its Initial Decision to authorize operating licenses for McGuire Units 1 and 2 (sub' ject to making certain additional findings) almost seven months before Appendix B was added.
Additionally, Appendix B was promulgated without prior public notice and comment.
Applicant has attempted to complete all licensing requirements in a timely manner in order that McGuire Unit I could commence the generation of power as soon as all substantive licensing requirements have been met.
The effect of Appendix B is to delay the operation of this Unit for purely procedural reasons.
Accordingly, these reopened proceedings should be shortened to the maximum extent consistent with the Commission's mandate of " avoiding undue delay and duplication of effort by adjudicators."
44 Fed. Reg. 65050 -(November 9,1979).
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The Commission discussed TVA Sequoyah Unit I hydrogen control measures on August 14 and 21, September 5 and 16, and January 27, 1981.
The Commission had a briefing on ice condensers and Mark III containments on December 3,1980; Commissioner Gilinsky was briefed on the McGuire Facility on January 21, 1981.
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As stated in the attached ~ Affidavit of A. C. Thies, the McGuire containment is virtually identical - to the Sequoyah. containment.
.The.
major difference between the two containments is that McGuire is stronge?.
CONCLUSION F' rom the foregoing, Applicant respectfully requests that its motion seeking waiver, exception or exemption from the provisions of 10 CFR Part 2, Appendix B be granted.
Dated: March 26,1981 Respectfully submitted,
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Wilham L. Porter Associate General Counsel Post Office 33189 Charlotte, N. C.
28242 Of Counsei:
J. Michael McGarry, III Debevoise and Liberman 1200 Seventeenth Street, N.W.
Washington, D. C.
20036 I
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PROJECTED SCHEDULE License issued for Fuel Loading January 23, 1981 Conclusion of Evidentiary Hearings March 19,1981 Applicant Filed Motion for 35% License March 24,1981 Applicant's Submittal of Proposed Findings and April 8,1981 Conclusions of Law. (full power) (TR 5253-6)
Intervenor's and NRC Staff's Submittal of Proposed April 13,1981 Findings and Conclusions of Law (full power) (TR 5254-6)
(estimate) Unit I ready to begin low power ' testing May 15,1981 and power escalation (estimate) Initial Decision by Atomic Safety and May 18,1981 Licensing Board * (full power)
Opera:Ing License could be issued by Director, May 18-28,1981 Office of Nuclear Reactor Regulation Except for the Requirements of_ Appendix B to 10 CFR Part 2.**
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Based upon Appendix A,Section VI to 10 CFR Part 2.
The projected schedule is based on the expediting of matters by all parties and on waiving by Applicant of the right to file a Reply Brief.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of
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DUKE POWER COMPANY
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Docket Nos. 50-369
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50-370 (William B. McGuire Nuclear
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Station, Units 1 and 2)
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AFFIDAVIT OF A. C. THIES I,
A.
C.
Thies, Senior Vice President, Production and Transmission, Duke Power Company, having first been duly sworn, hereby state as follows:
In September, 1970, Duke Power Company filed an application with the Atomic Energy Commission for a license to construct and operate the William B. McGuire Nuclear Station at a site on Lake Noman approximately sevrenteen miles northwest of Charlotte, North Carolina.
Following public hearings and the filing of voluminous reports documenting that the facility could be constructed and operated without undue risk to the health and safety of the general public, a construction permit was issued.
In April, 1974, the Company filed an application for the operating license for McGuire and hearings were held in 1977 and 1978.
A decision was issued by the Atomic Safety and Licensing Board in April, 1979, authorizing the issuance of an i
operating license pending satisfactory completion by NRC staff of a report on generic safety issues and a reviev> by the Board of the report.
On November 25, 1980, the Licensing Board reopened the operating license proceedings on issues which involved a reinvestigation of matters (hydrogen generation) recently resolved by the Commission prior to the issuance of a license for TVA's Sequoyah Facility near Chattanooga, Tennessee.
Other issues included the adequacy of emergency plans..The 8104020591
reopened hearing commenced on February 24, 1981, and ended on March 19, 1981.
McGuire Nuclear Station is a Westinghouse pressurized water reactor with an ice condenser which is, for practical purposes, identical to TVA's currently operational Sequoyah facility.
It is also similar to the D. C. Cook units which began operation in 1975 and 1978.
The containment for the McGuire facility is ' stronger than the Sequoyah containment.
The containment at Three Mile Island (TMI) registered a pressure of 28 PSIG during the accident.
The McGuire containment integrity analysis documents a functional capability of 67.5 PSIG. With the hydrogen mitigation system, a metal water reaction similar to that experienced at TMI would result in a pressure of less than 16 PSIG.
Construction of Unit No. I has been completed and the NRC issued a zero power license on January 23, 1981.
The Company has completed fuel loading and testing is on-goin g.
Nevertheless, because of the regulatory uncertainties surrounding the evolving NRC policies and becatise of protracted proceedings with intervenors, there is no assurance that final NRC approval will be received so that this 1180 megawatt unit can begin operation in time to meet the anticipat' d demand for electricity during the summer of 1981.
e On May 15, 1981, McGuire Nuclear Station will be ready to begin low power testing and escalation of power leading to the production of electricity, which will require. additional authority from the NRC.
This electricity is needed and. not to operate this facility when it is available will increase the costs to consumers.because of increased capital costs and fuel differential costs.
The Federal Energy _ Regulatory Commission and the North Carolina Utilities Commission have determined that 20% reserve margin of generating capacity is the minimum necessary to provide adequate and reliable service.
ATTACHMENT A March 23, 1981 MEMORANDUM 4
SUBJECT:
DUKE POWER COMPANY 1981 SUMMER RESERVE CAPACITY ESTIFATE The following table and notes represent the forecast for the 1981 su=mer load and reserve capacity situation with and without McGuire Unit No. 1:
W/out " Juire #1 With McGuire #1 Generation 12,048 MW 13,228 MW Firm Purchases 93 MW 93 MW Total 12,141 MW 13,321 MW Expected Peak
'10,460 MW 10,460 MW Installed Reserve 1,681 MW 2,861 MW Percent Reserve 16.07 %
27.35 %
Scheduled Out Oconee #1*
(860)NW (860)MW Forced Out Miscellaneous (500)MW (500)MW Total Unavailable (1,360)MW (1,360)MW Operable Capacity 10,781 MW 11,961 MW l
Operating Reserve 321 MW 1,501 MW j
Net Percent Reserve 3.07 %**
14.35 %***
- Oconee Unit il to begin a 15-veek outage for refueling and modifications j
on July 12, 1981.
- This reserve does not take into account any large unit forced outage.
Should either of the Belews Creek units be out of service along with the miscellaneous 500 MW during the time of system peak load, operating re-serve capacity (Duke owned) will be deficient (799 MW), (7.6%).
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- This reserve' also does _not take into account any large unit forced outage.
Should either of.the Belevs Creek units be out of service along with the j
miscellaneous 500 MW during the time of system peak load, the reserve ca-l pacity will be 381 MW, 3.64%.
Operating Department P. H. Mann, Jr.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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DUKE POWER COMPANY
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Docket Nos. 50-369
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50-370 (William B. McGuire Nuclear
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Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Request for Waiver, Exception or Exemption from the Full Provisions of Appendix B to 10 CFR Part 2," dated March 26, 1981, in the above-captioned proceedings, have been served upon the following by deposit in the United States mail,' first class, this 26th day of March, 1981:
Robert M. Lazo, Esq., Chairman Edward G. Ketchen, Esq.
Atomic Safety and Licensing Board Counsel for NRC Staff U. S. Nuclear Regulatory Commission Office of the Executive Legal Washington, D. C.
20555 Director U. S. Nuclear Regulatory Dr. Emmeth A. Luebke Commission Administrative Judge Washington, D. C.
20555 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Ms. Diane B. Cohn Washington, D. C.
20555 William B. Schultz, Esq.
Public Citizen Litigation Group Dr. Richard F. Cole Suite 700 Administrative Judge 2000 P Street, N.W.
Atomic Safety and Licensing Board Washington, D. C.
20036 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Shelly Blum, Esq.
1402 Vickers Avenue Mr. Jesse L. Riley, President Durham, North Carolina 27707
. Carolina Environmental Study Group 854 Henley Place Chairman Charlotte, N. C.
28207-Atomic Safety and Licensing l
Board Panel Dr. John M. Barry U. S. Nuclear Regulatory Department of Environmental Health Commission l
Mecklenburg County Washington, D. C.
20555 i
1200 Blythe Boulevard l
Charlotte, N. C.
28203 J. Michael McGarry, III, Esq.
Debevoise and Liberman 1200 Seventeenth Street, N.W.
Washington, D. C.
20036 4
' Mr. Joseph Hendrie, Chairman U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Victor Gilinsky, Commissioner' U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Peter Bradford, Commissioner U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. John F. Ahearne, Commissioner U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Samuel J. Chilk, Secretary U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Chairman Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Chase R.
Stephens Docketing _and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C.
20555 l
D i
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l Tilliam L. Portbr l
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