ML20005B046
| ML20005B046 | |
| Person / Time | |
|---|---|
| Site: | McGuire, Mcguire  |
| Issue date: | 07/01/1981 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CAROLINA ENVIRONMENTAL STUDY GROUP |
| References | |
| ALAB-647, NUDOCS 8107060257 | |
| Download: ML20005B046 (12) | |
Text
4 UNITED STATES OF AMERICA rs NUCLEAR REGULATORY COMMISSION
[
ATOMIC SAFETY AND LICENSING APPEAL BOARD M dl/l,' 21981, 3 Administrative Judges:
en,
b ' tM*!g
/)'
Alan S.
Rosenthal, Chairman b
!"5%gg Dr. John H. Buck
. Christine N.. Kohl
\\
.4 SERVED In the Matter of
)
)
DUKE POWER COMPANY
)
Docket Nos. 50-369
)
50-370 (William B. McGuire Nuclear Station, )
-Units 1 and 2)
)
)
.Mr. Jesse L.
Riley, Charlotte, North Carolina, for the intervenor, Carolina Environmental Study Group.
Messrs.
J.
Michael McGarry, III, Washington, D.
C.,
and William L.
Porter, Charlotte, North Carolina,
. for the applicant, Duke. Power Company.
MEMORANDUM AND ORDER July 1, 19 81
( ALAB-647) 1.
In April 1979, the nicensing Board rendered an initial I
decision in this operating license proceeding involving Units 1 and 2 of the McGuire facility.
All matters which had been placed in controversy were determined in the ap-plicant's favor.
The Board, however, stayed the effectiveness of the decision pending its further order after the NRC staff's issuance of a supplement to the safety Evaluation Report on the r
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.. significance of any unresolved generic safety issues.
Id. at 1
547-48.- /
That supplement was issued in May 1980.
Shortly thereafter, on June 9, 1980, intervenor Carolina Environmental S:?udy Group (CESG) filed a motion seeking, by reason of the March 1979 ac-cident at Three Mile Island, the reopening of the evidentiary record and the admission to the proceeding of certain new con-tentions concerned with hydrogen generation and control.
On November 25, 1980, the motion was granted and four additional CESG contentions were accepted for litigation.
In essence, those contentions addressed the possibility that, in the event of a loss-of-coolant accident at McGuire, substantial quantities of hydrogen would be generated within the reactor containment which, in turn, might combust and bring about a rupture of the containment and the release of radioactive materials.
As the Board saw it, "CESG's proposed contentions related to the matter i
l of hydrogen-generation control arising out of the Three Mile l
Island 2 (TMI-2) accident may well shed significant light upon l
l 1_/
On June 21, 1979, the appeal Panel Chairman entered an unpublished order which provided that the time for the t
i filing of exceptions to the decision would not commence t3 run until the Licensing Board's further order was issued.
.. key safety findings which are required to be made before opera-tion of McGuire Units 1 and 2 could be authorized". 2/
In the wake of fifteen days of evidentiary hearings con-ducted during the early part of this year, the Licensing Board on May 26 rendered a supplemental initial decision on the hydro-gen generation and control issues.
LBP-81-13, 13 NRC On the basis of the numerous findings contained in that decision, the Licensing Board concluded that reasonable assurance existad that, "in the event. of a TMI-type accident at McGuire, substan-tial quantities of hydrogen (in excess of the design basis of 10 CFR 850.44) will not be generated".
Id. at (slip opinion,
- p. 31).
The Board went on to lift the stay of its 1979 initial decicion.
It thereby paved the way for the Director of Nuclear Reactor Regulation to issue full-term operating licenses for the McGuire units- / once the Director had made the findings required by 10 CFR 50. 57 (a) on those matters not considered in the adjudi-catory proceeding.
Id. at (slip opinion, p. 32).
l j2 /
November 25, 1980 Memorandum and Order Regarding CESG's j
Motion to Reopen Record, at p.
l
--3/
On November 25, 1980, the Licensing Board had entered an unpublished order authorizing the issuance of a license for Unit 1 which would permit fuel loading, initial crit-icality and zero power physics testing.
See ALAB-626, 13 NRC 17 (1981).
l l
.. 2.
The Commission recently repealed Appendix B to 10 CFR Part 2, under which licensing board decisions such as those in-volved here were not to become efftative pending certain action by both an appeal board and the Commission itself.
46 Fed. Reg. 28627 (May 28, 1981).
Appendix B was simultaneously replaced by amendments to 10 CFR 2.764, the Rule of Practice concerned with immediate effectiveness of initial decisions. 4 /
New sub-section (f) (2) of that Rule provides that, upon its receipt of a licensing board decision authorizing issuance of an operating license, the Commission will undertake to determine on its own initiative whether to stay the effectiveness of the decision.
This determination is to be based "on a consideration of the i
gravity of the substantive issue, the likelihood that it has been resolved incorrectly below, the degree to which correct resolu-tion of the issue would be prejudiced by operation pending re-
' view, and other relevant public interest factors".
In the case l
of a full-power operating license, the anticipation is that the i
determination will be made within thirty days.
Until the
- 4 /
Appendix B, promulgated in November 1979, had suspended the operation of Section 2.764 insofar as construction permits and operating licenses were involved.
At that time, the Section provided, inter alia, that an initial decision authorizing the issuance of an operating license was to be effective immediately upon rendition unless affirmatively stayed for good cause.
_5 /
With respect to fuel loading and low-power testing li-censes, the Commission proposes to act within ten days.
i I
l
.. Commission speaks, the licensing board's decision is to be con-sidered automatically stayed.
See 46 Fed. Reg. 28627, 28628, 28630.
Section 2. 764 (f) (2) further stipulates that this Commission review sua sponte "is without prejudice to Appeal Board or other Commission decisions, including decisions on stay requests filed i
under 10 CFR 2.788".
46 Fed. Reg. at 28630.
By virtue of Sec-tion 2. 788 (a), an application for a stay of the effectiveness of a licensing board decision may be filed within 10 days of the service of that decision.
In passing upon the application, we are to consider four factors:
(1)
Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2)
Whether the party will be irreparably injured unless a stay is granted; (3)
Whether the granting of a stay would j
harm other parties; and (4)
Where the public interest lies.
Section 2. 788 (e). 6_/
J5,/
These same factors have long governed the grant or denial of judicial stays.
See Virginia Petroleum Jobbers Ass'n.
- v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958).
As is readily apparent, they do not coincide with the considerations which the Commission is to take into account in making its Section 2.764 determination.
This at least partially ex-plains the fact that, despite its subordinate status, an appeal board has been empowered to grant a Section 2. 788 l
stay without regard to what the Commission has done
(' r o
might do) under Section 2.764.
l l
?
6-P 3.
Within - e time prescribed by Section 2.788, CESG moved for a stay of the effectiveness of the initial and supplemental t
initial decisions pending the disposition of the exceptions which it has filed to those decisions under 10 CFR 2.762 (a).- /
The applicant opposes the motion.
For its part, the staff has elected not to file a response.-8/
t
_7/
The stay motion was filed and served on June 6; the excep-tions were filed and served two days later.
_8/
Insofar as we are aware, this is the first occasion upon which the staff has made such an election in connection with a stay request.
At the very least, a staff response customarily has been filed to a request by another party for certain relief.
This is not to say, of course, that the staff has defaulted on an obligation imposed upon it by the Rules of Practice or otherwise.
An adjudicatory board may well have the inherent authority to direct a party to a proceeding before it to file a responsive pleading setting forth its views on the matter at hand.
Absent such a direction, however, the decision whether to i
respond is for the party to make.
In this instance, we will respect the staff's choice and determine the stay question on the basis of the papers filed by CESG and the applicant.
Our willingness to do so rests in large measure on the assumption that, although not affirmatively urging that the initial decisions be allowed to become effective in advance of appellate review, at the same time the staff does not believe that reactor operation would pose a threat to the public health and safety for the reasons assigned by CESG.
Manifestly, had i
l it reached a different conclusion, it would have become duty-bound in the fulfillment of its regulatory responsi-bilities co to inform us.
i l
W
.. Although not so required, we decided to hold the stay motion in abeyance to await Commission action under Section 2. 764 (f) (2).- /
That action has just been taken in part.
In an order entered on June 29, the Commission unanimously approved the issuance of a full-power operating license for Unit 1 alone.
The order indi-cated (at p. 2) that "[t]his effectiveness decision is without prejudice to Commission effectiveness review for Unit 2".
Pre-sumably, completion of that review has been deferred in light of the fact that, unlike Unit 1, Unit 2 is not as yet fully con-structed.1d}!
--9/
As will be seen, the stay motion is directed to the hydro-gen generation and control issues resolved in the May 26 supplemental decision.
Those issues relate exclusively to full-power operation.
By June 11,_1981 order, the Commission permitted the issuance of a licer.se allowing operation of Unit 1 at staady state reacto'r core power levels up to 5% of rated power.
But no ".atter when full-power operation might have been authorized by the Commis-sion,several additional weeks necessarily would then elapse before that unit might actually be placed in service.
Thus,an immediate ruling on the stay notion before us was i
not mandated.
l In a different set of circumstances, we might well conclude that ample reason existed to act more expeditiously on a i
Section 2.788 stay motion presented to us --
i.e.,
prior to j
the outcome of the Commission's Section 2.764 (f) (2) review.
lCV It appears from a recent NRC construction status report (NUREG-0 0 30, Vol.
4, April 1981, at p.
1-4) that Unit 2 was approximately 75% constructed at the end of 1980 and will not be ready for fuel loading for another year.
1
8-The stay motion is addressed to the entire Licensing Board supplemental initial decision -- and not simply to the authori-zation therein of a full-power operating license for Unit 1.
Moreover, none of the parties has suggested that, in pass-ing upon the motion, we attach some significance to the dif-ferent current stages of construction of the two units.
Never-theless, in deciding whether a stay is warranted, we can like-wise confine our attention to Unit 1.
This is because, as a matter of certainty, the pending CESG appeal will be decided on the merits well before Unit 2 might be ready for full-power operation more than a year hence.
In that circumstance, a pendente lite stay of the effectiveness of the supplemental de-cision is manifestly unnecessary insofar as Unit 2 is concerned.
4.
There is no occasion to dwell at length here upon the foundation for the Licensing Board's conclusion respecting the likelihood that the generation of hydrogen in excess of permis-sible limits would result from a Three Mile Island-type accident at McGuire.
For one thing, the several considerations which led the Board to that conclusion are adequately spelled out in the supplemental initial decision.
13 NRC at (slip opinion, p.
9 et seq. ).
For another, at least for the purposes of its stay motion, CESG does not appear to challenge the conclusion.
~
9-Rather, as we read its papers, the claim that full-power operating licenses should now be withheld rests principally upon two quite dif-ferent assertions:
(1) even if reasonable assurance exists that excessive quantities of hydrogen will not be generated, the Li-censing Board nonetheless was obliged to explore and determine the consequences of a containment rupture brought about by hydro-gen combustion; and (2) the Board erred in confining its scru*d ny to loss-of-coolant accidents of the TMI type.
These' assertions will receive full examination in our de-termination of CESG's pending appeal from the supplemental initial decision.
Without prejudging the outcome of that examination, we think that insufficient justification has been assigned in CESG's stay papers for precluding Unit 1 operation in the mean-time.
The relevant condition precedent to such operation is a l
finding of " reasonable assurance (i) that the activities author-1 l
l ized by the operating license can be conducted without endanger-ing the hetith and safety of the public, and (ii) that such l
activities will be conducted in compliance with [ Commission]
regulations".
10 CFR 50. 57 (a) (3).
With regard to hydrogen gen-eration and control, that finding has been made and CESG's motion l
l does not contain the required demonstration that it likely will be set aside on the appeal.
l
.., Although the Board's ultimate finding was cast in terms of a "TMI-type accident", as previously noted CESG's hydrogen con-tentions were both tendered and accepted for litigation in the context of such an accident.
In any event, CESG's motion does not describe the other accidents which it believes should have also been considered, et alone explain why they might produce a greater hydrogen control problem than would result from a loss-of-coolant accident of the TMI variety.
In these circumstances, CESG has fallen far short of meet-ing its obligation to make a strong. showing that it is likely to prevail on the merits of the hydrogen generation and control issues.
Nor has it made the required demonstration on the ir-reparable injury factor.- /
On the other hand, the applicant insists that both it and its customers will sustain significant injury if a Unit 1 operating license is withheld to await a de-cision on the pending appeal.
We are specifically referred to the June 5, 1981 comments which the applicant submitted to the Commission in connection with the Section 2. 764 (f) (2) sua sponte review.lj2 /
In a March 23, 1981 affidavit appended to the comments 11 /
Indeed, in CESG's only reference to irreparable harm (at p.
5), it states that there is simply the " potential" for such harm.
~
12 /
That Section expressly authorizes the submission of such
~-
comments within 10 days of the Licensing Board's decision.
Both the applicant and CESG availed themselves of that opportunity.
.. (at p.
- 3), the applicant's Senior Vice President for Production and Transmission averred that, absent the availability of Unit 1 power, the utility's reserve margin at the point of peak summer demand will be reduced to 3.C7% (without taking into account "possible extreme weather or possible forced outages of large units").
Also appended to the comments was a March 20, 1981 letter from the Chairman of the North Carolina Utilities Commis-sion to the Chairman of this Commission which confirmed the in-adequacy of the applicant's reserves and represented that, unless Unit 1 were available "during the coming peak season", there would be a greater likelihood of operating dif ficulties and a certain increase in operating costs.bb!
To be sure, considerations of this nature perforce must be subordinated to any serious safety concern.
But they are enti-tied to substantial weight where, as here, the Licensing Board's findings negating the existence of reason for such concern (at least with regard to hydrogen generation and control) both are founded upon the product of a thorough evidentiary exploration and have gone essentially unchallenged.
The motion for a stay pendente lite of the Licensing Board's initial and supplemental initial decisions is denied.
l l
13/
These averments by responsible officials are not adequately countered by CESG's unsupported assertion (motion, p.
6) that, at the time of " probable summer peak demand", the applicant "may be expected to have a nominal reserve of 1000 to 1500 MW".
l L
12 -
This Board will, however, calendar the CESG appeal for oral argu-ment at as early a date as possible following the completion of briefing.
It is so Oi1ERED.
i FOR THE APPEAL BOARD
)Y _ f,, gjh Y - - sl N J Barbara A.
Tompkins Secretary to the
. Appeal Board O
i 9
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