ML20008F693
| ML20008F693 | |
| Person / Time | |
|---|---|
| Site: | McGuire, Mcguire  |
| Issue date: | 04/17/1981 |
| From: | Scinto J, Scinto J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20008F690 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8104210505 | |
| Download: ML20008F693 (9) | |
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e 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 OL
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50-370'0L (William B. ficGuire Nuclear Station,
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Units 1 and 2)
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HRC STAFF RESPONSE TO APPLICANT'S REQUEST FOR WAIVER, EXCEPTION OR EXEMPTION FROM THE FULL PROVISIONS OF APPENDIX B TO 10 C.F.R. PART 2 I.
INTRODUCTION On March 26, 1981, Duke Power Company (applicant) filed " Applicant's Request for Waiver, Exception or Exemption from the Full Provisions of Appendix B to 10 CFR Part 2" seeking a waiver, pursuant to 10 C.F.R. 5 2.758, of the application of the provisions of 10 C.F.R. Part 2, Appendix B -
in the captioned proceeding, or alternatively a partial waiver to eliminate the requirement for independent review by the Appeal Board. The motion was accompanied Dy the affidavit of A. C. Thies. The motion is also filed in the alternative for an exemption, pursuant to 10 C.F.R. 6 50.12, from the f
provisions of 10 C.F.R. Part 2, Appendi x B.
The NRC staff believes that a prima facie showing has been nade that.
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due to special circumstances in the McGuire proceeding, application of-Appendix B to 10 C.F.R. Part 2 would not serve t'ne purposes for which the rule was adopted.
Thus, we believe that the Licensing Board should, without ruling thereon, certi fy the matter to the Commission in accordance with 10 C.F.R.
t 5 2.758(d).
L 810.42.10505-
II. BACKGROUN3 As a result of previnus hearings in this proceeding, the Licensing Board issued an Initial Decision on April 19,1979,l/ deciding all ratters raised in issue in this proceeding prior thereto, in favor of the issuance of a full power operating license for both Units 1 and 2 of the McGuire Station. However, 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 Recort addressing the significance of any unresolved generic safety issues." 9 NRC 4C9, at 547-48. SER, Supplerent 3, which addressed the significance of the unre-solved safety issues as they relate to the McGuire facilities, was published in May,1930. All that remains of the issues raised prior to April 1979 is for the Board to terminate the stay of its Initial Decision with respect to such issues.
On November 25, 1980, the Licensing Board granted the motion of Carolina Environmental Study Group (CESG) to reopen the McGuire hearing record to consider four new contentions, all related to hydrogen generation control arising out of the TMI-2 accident,2/ and on the same day granted applicant's notion for a low power license to the extent of authorizing fuel loading, initial criticality, and zero power testing.3/ The hearing
~1/ Duke power Co. (William S. McGuire Nuclear Station, Units I and 2),
LBp-79-13, 9 NRC 4S9 (1979).
2/ "Menorandum and Order Regarding CESG's Motion to Reopen Record,"
(unpublished).
3/ "Menorandum and Order Regar ding Applicant's Motion for Summary Disposition" (unpublished).
Tnis Menorandum and Order denied apoli-cant's request with respect to low power testing at up to Si full coxer.
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relating to the hydrogen generation and control issues commenced February 24, 1981, and was completed on March 19, 1981. On March 24, 1981, appli-cant filed a motion under 10 C.F.R. 5 50.57(c) for a license authorizing operation up to 35 percent of rated power and on March 26, 1981 filed the motion, discussed herein, requesting a waiver, exception or exemption from the application of 10 C.F.R. Part 2, Appendix B to this proceeding.
Although not clear on its face, applicant apparently intends that the requested waiver apply not only to the full power license on authori--
zation by the Licensing Board, but also to the 35 percent partial power license, i f authorized by the Licensing Board in response to applicant's March 24,1981 mo ti on.N III.
DISCUSSION 10 C. F.R. 6 50.12 Section 50.12 of 10 C.F.R. Part 50 provides:
(a) The Commission may, upon application of any inter-ested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.
[ emphasis added]
On its face,10 C.F.R. 5 50.12 is limited in its application to exemptions from the requirements of the regulations in 10 C.F.R. Part 50. Thus,
10 C.F.R. H 50.12 is inapposite to a request for waiver or exemption from a provision of 10 C.F.R. Part 2.
4/ Applicant urges expeditious trecket
'o r... Applicant anticipates Appendix B review as early as Sp.t l 's
" footnote p.1; whereas,
applicant notes, on p. 3, that i" e sing Board's Initial Decision on a full operating license "cc/d be twaed as early as May 18, 1981."
-4 l_0_C.F.R. 6 2.758 0
Sectici. 2.758 of 10 C.F.R. Part '2 provides:
(a) Excent as provided in paragraphs (b),'(c), and (d) of this section, any rule or regulation o' the' Commission or any provision thereof, issued i ts program for-the licensing.and regulation of y 3-duction and utilization facilities... shall not be subject to attack by way of... argument, or other means in any adjudicatory proceeding involving initial licensing subject to this subpart.
(b)- A party to an adjudicatory proceeding. involving initial licensing subject to this subpart may petition that the application of a specified Commission rule or regulation or any provision thereof, o_f the type described in paragraph (a) of this section,' be waived -
or an exception made for the particular proceeding.
10 C.7.R. 6 2.758(b) is applicable -to petitions for waiver of the application of a specified Commission rule (or any provision thereof) of the type specified in paragraph (a).
Paragraph (a) applies to "any rule or regulation of the Commission or provision-thereof Issued in its program.
for licensing and regulation of production and utilization facilities...
This broad scope is sufficient to encompass the Commission's procedural rules in 10 C.F.R. Part 2, including 10 C.F.R.' Part 2, Appendix B.
The procedures applicable to such a petition for waiver are explicitly set forth in section 2.758. The sole ground for such petition is that "special circumstances _ with respect to the. subject matter of the particular proceeding are such that application of the rule or regulation -(or provision thereof) would not serve the purposes for which the ruee was adopted." The petition is to be accompanied by an affidavit (s) setting forth the special circumstances alleged to justify the waiver. Other parties have the oppor-tunity to respond (section 2.758(b)). On the basis of the petition, accompanyiq
5-affidavits, and the responses thereto, the Licensing Board is to determine whether a prima facie showing has been made that application of the specific Commission rule or provision thereof to a particular aspect of the proceeding would not serve the purposes for which the rule or regulation was adopted.
If such a showing has been made, the Licensing Board shall, before ruling thereon, certify th'e matter directly to the Commission for determination (section 2.758(d)).
If a prima facie showing has not been made, no evidence or argument directed to the matter will be permitted and the presiding officer may not further consider the matter (section 2.758(c)).
Ayplicant's Assertion of Special Circumstances As noted above, the sole ground for a petition under 10 C.F.R. s 2.758 is a showing that special circumstances with respect to the subject matter of the particular proceeding ara such that application of the rule (or. provision thereof) would not serve the purposes for which the rule was adopted.
Applicant asserts three special circumstances, also mentioned in the accompanying a f fi da vi t:
- that it is, a reopened proceeding, which warrants an expeditious conclusion, and that there is a serious need for a full power -
license for this summer's peak demand;
- that the subject matter of the reopened proceeding, hydrogen generation in an ice condenser containment, is a limited issue which is well known to the Commission;
- that McGuire is in a unique position relative to the impact of Appendix B, since the Licensing Board had issued, but stayed, an Initial Decision well before the promulgation of 10 C.F.R. Part 2, Appendix B.
Assessment of Special Circumstances To determine whether there are special circumstances warranting a waiver under 10 C.F.R. 6 2.758, it is essential to ascertain the intended purposes of the rule sought to be waived.
the aftermath of Three Mile Island, the Commission modified previous policy to permit issuance of new construction permits and operating licenses only after action by the Commission itsel f (44 Fed. R_es. 58559, October 10,1979).
e Subsequently, the Commission-adopted the provisions of 10 -C.F.R. Part 2,
^
Appendix B to assure that the implications of the Three Mile Island accident were duly considered in decisions of Atomic Safety and Licensing Boards in connection with new construction permits and operating licenses.5/ The Commis-sion's purpose for adopting the -speci fic ' features of 10 C.F.R. Part 2, Appendi x B, is set forth in the statement of consideration accompanying the rule,
. published in the Federal Register, 44 Fed. Reg. 65049, November 9, 1979:6_/
[T]he Commission has adopted this approach [the-approach reflected in Appendix B] because it achieves the objective of increased Commission supervision of licensing actions while (1) avoiding undue delay and duplication of effort by adjudicators and parties; and (2) allowing the Commission maximum flexibility in terms of deciding whether, in light of its other responsibili-ties, particular proceedings or issues warrar.t its early intercession or can appropriately be left to the ordiriary adjudicatory processes (subject, of course, to ultimate Commission review at the conclusion of the proceeding).
5/ Additional guidance concerning future actions on nuclear power reactor operating licenses has been provided by the Commission's Statement of Policy, 45 Fed. Reg. 85236 (December 24, 1980). Additional licensing requirements for pending construction permit applications and manufacturing license applications have been recently proposed. 46 Fed. Reg. 18045 (March 23, 1981).
6/ For additional discussion of background, see the statement of considerations in connection with proposed "~ imediate Effectiveness Rule; Commission Review Procedures for Power Reactor Operating Licensees," 46 Fed. Reg. 20215 ( April 3,1981).
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~With respect to the purpose of permitting the Commission to exercise its supervisory responsibilities, to assure that the implications of Three l
Mile Island are adequately taken into account, the only matter in the reopened proceeding relates to hydrogen control in ice condenser containments.
This specific matter was considered at length by the Commission in its review of the staff's evaluation of this same issue in connection with the 1
uncontested license for Sequoyah Unit 1, a ' virtual sister facility to McGuire in relevant respects.2/
For hydrogen control, McGuire uses a distributed igniter system very simlar to that used at Sequoyah'.
The conditions imposed by the Commission in connection with Sequcyah were the guidance used by the staff in its assessment of the adequacy of McGuire.
The staff assessnent is a r.:ajor element of the evidence in the McGuire proceeding.
Thus, the Commission has, with respect to the sole issue involved in 4
the reopened McGuire proceeding, already provided increased guidance con-cerning hydrogen control in ice condensers.0/ A - further review by the I
Commission and the Appeal Board, before issuance of the license (assuming favorable decision by the Licensing Board) would not appear to be necessary to satis fy the first purpose.
With respect to the other purpose for the rule - that of permitting the r
l Commission flexibility while avoiding undue delay and duplication of effort of i
l 2/
Thies affidavit, p. 2; Butler affidavit attached.
l 8/ The Commission has also provided guidance with respect to hydrogen con-
-trol issues, in general, in its Memorandum and Order, CLI-80-16, in the 3
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Three Mile Island-l Restart case. Metropolitan Edison Co. (Three Mile 1
Island Nuclear Station, Unit No.1), Memorandum and Order, CLI-30-16, i
11 f4RC 674 (1980). That Memorandum and Order specifies the manner in
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which hydrogen generation issues are litigable in licensing proceedings.
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adjudicators and parties - application of the requirement for review under Appendix B before the license is issued may well not serve the purpost 'r which the rule was adopted.
In light of the extensive direct involvement of the Commission on.the matter of hydrogen control in. ice. condenser-contain.
ments, the additional review called for by Appendix B before the license is issued appears to entail undue duplication of effort.
Waiver of Appendix B as requested would not mean that the Commission f
completely waives its opportunity to assess the application of-its guidance.
The Conmission retains its opportunity to review this matter in the usual course of the ordinary adjudicatory processes provided by the other provisions of 10 C.F.R. Pa rt 2.
The issues litigated in the early chase of the oroceedino, decided in the 1979 initial decision, raise no TMI related imolications. They were limited need for oower from the facility, the costs and benefits o# alternative modes of power generation; seismicity of eastern North-Carolina; financial cualifications, and. solar power alternatives. The Board also considered 4
matters relating to radon releases in the uranium fuel cycle (Table S-3),
and comoliance with 10 C.F. R.
Part 50, Aopendix I. ;/
The only one of these issues which might fall in_ the category "... pre.judicing the review of significant safety or environmental' issues..." is'the ratter 3
relating to seismicity, even though that cannot be characterized as "creatino,
i novel safety or environmental issues in light of the Three Mile Island accident "
i I
9/ It also discussed procedural requirements relating to unresolved safety issues. 9 URC 439, 545.
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9-Moreover, it is unlikely the matter of seismicity raised in the McGuire case can be characterized as a significant safety issue whose review night be prejudiced by the grant of a waiver.
Intervenors offered only limited affirmative evidence on this issue and that was rejected as irrevelant.
IV.
CONCLUSION We believe that on the basis of the petition and attached affidavit and this response by the staff, the Licensing Board should find that there is, at least, a prima facie showing of special circumstances in the present case that application of 10 C.F.R. Part 2, Appendix B, would not serve the purpose for which the rule was adopted, and should, without ruling thereon, certify the matter to the Commission, in accorda.nce with 10 C.F.R. 5 2.758.
Respectfully submitted, D
s)
-W Joseph Scinto
' Counsel for ?'RC Staff Dated at Bethesda, Maryland
,0 this 17 th day of April,19811/
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10/ Without objection by the parties, the Board, by phone, granted CESG's phone request for extension of time to file its reply until April 20, 1981, and provided the staff with the same opporturity.
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