ML20010D241
| ML20010D241 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 08/19/1981 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| LBP-81-31, NUDOCS 8108240128 | |
| Download: ML20010D241 (9) | |
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UNITED STATES OF AMERICA 4
i NUCLEAR REGULATORY COMMISSION 1
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ATOMIC SAFETY AND LICENSING BOARD r
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- 1 AUG 2 019811 >,. j-V Before Administrative Judges:
9 aqctBa secretuy 12 Charles Bechhoefer, Chairman
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Dr. George C.' Anderson f
Ralph S. Decker jj
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Docket No. 50-409 OL In the Matter of
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i DAIRYLAND POWER COOPERATIVE
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Docket No. 50-409
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Prov. Op. Lic. D (La Crosse Boiling Water Reactor,
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s Operating License and Show Cause) )
August 19, 198k 1
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MEMORANDUM AND ORDER 91 t/b (Consolidating Show-Cause and d
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c Operating License Proceedings) 1/
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Pending before this Licensing Board are two proceedings.
The first (0L proceeding) concerns the application of Dairyland Power Cooperative (hereinafter " Applicant" or "Dairyland") for a full-term operating license r
I for the La Crosse Boiling Water Reactor (LACBWR), a 50 MW reactor located in Genoa, Wisconsin.E "he otner proceeding (SC proceeding) resulted from the Commission's Order to Show Cause, cated February 25, 1980.2/
The NRC Staff has filed a motion to consolidate these proceedings. The i
1/ Dairyland is currently operating LACBWR pursuant to provisional operating license DPR-45.
2/ Published at 45 Fed. Reg.13850 (March 3,1980).
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1 1 Applicant supports the motion, and no other party nas responded. For the reasons which follow, and subject to certain conditions, we grant the Staff's motion.
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The Notice of Hearing in the OL proceeding was published more than three years ago.3_/ Hearings on safety issues have a.?aited completion of the Staff's Safety Evaluation Report (SER), which in turn.must await the t
completion of the Staff's Systematic Evaluation Program (SEP), a program i
under which the NRC Staff is reviewing the eleven oldest, operating plants (including LACBWR) against the NRC's current design criteria for nuclear powerplants.b One of the matters to be dealt with by the SEP i
program is an evaluation of the adequacy of the 3=.ismic design of SEP plants.
The SC proceeding comenced well after the OL proceeding was under way.E The contested matters esentially have focused on two questions:
(1) the necessity of a site dewatering system tc, preclude liquefaction in the event of a magnitude 5.0-5.5 earthquake producing a peak l
ground acceleration of 0.129 at the site; and (2) whether the seismic parameters, particularly the 0.12g acceleration value, applied by the NRC 3/ 43 Fed. Reg. 28261 (June 29, 1978).
-4/ Also at issue in the OL proceeding are certain environmental issues.
The Staff issued its Final Environmental Statement (FES) in April,1980.
Pretrial procedures concerning environmental issues, and the environmental hearings, were postponed during the pendency of the SC proceeding. Order dated September 29,1980 (unpublished).
5/ The Notice of Hearing was published at 45 Fed. Reg. 66537 (October 7, 1980).
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. Staff and Dairyland in responding to the foregoing question are appropriate.5I' In our Partial Initial Decision of February 24, 1981, LBP-81-7, 13 NRC 257, we found no necessity for a site dewatering system to j
preclude liquefaction in the event of an earthquake producing peak ground
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acceleration at the site of 0.129 We did not address the second question inasmuch as the Staff was still undertaking its review of the seismic parameters.
However, we reiterated our earlier conclusion of the necessity of definitively ascertaining the size of the safe shutdown earthquake (SSE),
i including the resultant ground acceleration, prior to any final determination of the need for a site dewatering system. We also determined that there was no undue risk to the public health and safety in permitting operation pendente lite, without installation of a site dewatering system.
2.
In secking consolidation, the Staff points out that the only remaining issue in the SC proceeding--the seismic issue--is subsumed within the seismic design issue being evaluated in the SEP program. We have not yet ruled on health and safety contentions in the OL proceeding, pending completion of the SEP program and issuance of the Staff's SER based on it.
It is clear, however, that the seismic issue in the SC proceeding could as well be litigated in the OL proceeding; indeed, as the Staff points out, the scope of the OL review, and the remedies we could consider in the OL proceeding (if any remedies for liquefaction were warranted), are considerably broader than in the SC proceeding..In short, the Staff claims 6/ T1e latter issue was raised by the Board, which determined that it 4
was within the scope of the SC proceeding.
'376-78 (1980); ALAB-618, 12 NRC 551 (1980). By a 2-2 vote, the Commission declined to review ALAB-618. Letter to 0. S. Hiestand from S. J. Chilk (April 21,1981).
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O that determination of the SSE and the associated ground acceleration in bo't.
proceedings involves consideration of the same geologic and seismic data, scientific analyses, and expert opinion. The Staff further asserts that the l
commonality between the two proceedings extends to the makeup of the Licensing Board and (with one exception)7/ the parties. Finally, the Staff concludes that consolidation would provide savings in both time ard expense to all parties and would help ease the burden on the resources of the NRC Staff and Licensing Board Panel.
We agree with the Staff that consolidation would achieve the benefits described.0/ Under the Commission's Rules of Practice, consolidation is permitted if found to be " conducive to the proper dispatch of [the Board's]
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l business and to the ends of justice." 10 CFR 2.716. This rule has been construed by the Commission as mirroring Rule 42(a) of the Federal Rules of Civil Procedure, which provides for consolidation of proceedings that, inter alia, involve com;on questions of law or f act. Edlow International Co. (SNM Export), CLI-77-16, 5 NRC 1327,1328 (1977). As da have scen, these two proceedings do so.
Furthermore, there is precedent for the consolidation of Comnission enforcement and licensing proceedings. See, e. g., Consumerr_
Power Co. (Midland Plant, Units 1 and 2), Prehearing Conference Order Ruling
~~7/ The Staff would have us permit that party to participate in the consolidated aspects of the OL-SC progeeding.
We note, however, that failure to consolidate might not result in
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"two separate hearings on the SSE", as cla;med by the Staff.
Relitigating any P.spects of the SSE matter heard in the SC proceeding I
might be obviated through applcation of principles of res_ judicata or collateral estoppel. Cf. Public Service Co. of New Hampshire (Seabrook Alabama Power Station, Units 1 and 2T, CLI-78-1, 7 NRC 1, 26-27 (1978);
(Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC Co.
203(1974).
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. on Contentions and on Consolidation of Proceedings (unpublished), slip op.
pp. 13-14 (October 24,1980); Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), LBP-74-49, 7, AEC 1183,1185 (1974). Finally, no party has objected to the consolidation and no party would apparently be adversely affected thereby. The Applicant, the NRC Staff, and the Coulee Region Energy Coalition (CREC) are parties to both proceedinst and may par-ticipate in all aspects of either proceeding, whether or not consolidated.
Mr. Frederick M. Olsen, III, is an intervenur in the SC proceeding but not the OL proceeding. He has been consolidated with CREC in the SC proceeding (LBP-80-26, supra,12 NRC at 375), and he will be permitted to participate in the same capacity in the consolidated proceeding insofar as the lique-faction question (and the proposed dewatering system) are considered.
No prejudice to any party will thus arise from consolidation. We find, there-fore, that consolidation would be consistent with the provisions of 10 CFR s2.716--but with one caveat.
This caveet stems from the delay in completion of the SC proceeding which likely will result from consolidation. Delay in one proceeding is a-f actor which we may take into acgount in determining whether consolidation of two proceedings is appropriate. Alabama Power Co. (Alan R. Barton Nuclear Plant, Units 1-4, and Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-75-12, 2 NRC 373, 374 (1975). The Staff acknowledges that, absent consolidation, it intends to submit an evaluation of the seismic issue in the SC proceeding by September 1, 1981.
It also concedes that it presently
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. estimates that the SEP evaluation for LACBWR will not be issued before the springof1982.b Consolidation thus might lead to a delay of at least 6-9 months in completing the SC proceeding..
v The Staff sees no safety significance in such delay.
It relies on our calculation in LBP-81-7 that it might take until late 1981 or longer to litigate the seismic question in the SC proceeding, and on our conclusion that operation pendente lite presents no undue risk.
LBP-81-7, supra,13 NRC at 263, 274, 279. Moreover, the Staff claims that any urgency in I
resolving the show-cause proceeding stemed from the NRC Staff's original concern, expressed in the show-cause order, that liquefaction might' occur at the LACBWR site as a result of an earthquake producing 0.12g peak ground acceleration. According to the Staff, our determination that liquefaction 4
under pile-supported structures at LABWR would not result from the 0.12g earthquake effectively resolved any uncertainties raised in the show-cause i
l order which required some urgency in completing the SC proceeding.
In addition, the Staff cites "uncontroverted evidence" admitted at the l
l December,1980 evidentiary hearing that the 0.12g value is a reasonable f
estimate of seismic hazard from which to judge liquefaction potential at
- LACBWR, We perceive the safety significance of the potential delay from a somewhat different viewpoint.
In the first place, we made no findings in LBP-81-7 that the 0.129 value is a reasonable estimate of seismic hazard at
~9/ In light of past history, the possibility of additional delays in the SEP program cannot be ruled out.
We note that, as of June,1981, the SEP review for LACBWR was only 43 % complete.
NUREG-0485, Vol. 3, No. 8 (June 30, 1951), p. 1-7.
A draf t SER is not expected to issue until September 30, 1982.
Id.
,, i LACBWR.
Neither did we find it unreasonable.
Beyond that, the reason we decided to raise the seismic issue in the SC proceeding is still extant-,i.e., the Staff's use of a 0.20g acceleration value at a nearby i
site, based on a deterministic application of the provisions of 10 CFR Part 100, Appendix A.
See LBP-80-26, supra,12 NRC at 377. Moreover, in I
deferring sua sponte review of LBP-81-7, the Appeal Board expressed the view
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that we should bring the SC proceeding to its ultimate conclusion "with due dispatch". Order dated March 30,1981(unpublished).
On the other hand, the Staff is correct in pointing out that our decision in LBP-81-7 removed much of the urgency in resolving the seismic issue in the SC proceeding. We specifically held that the hazard of liquefaction which might arise from an earthquake larger than J.129 is lower than that accepted by the Staff (and the Commission) in the show-cause order as satisfactory for continued operation for a one-year period.
13 NRC at 278. That being so, acceptance of risk comparable to that accepted in the show-cause order would permit operation to continue well into 1982, if not longer.
1 Given these circumstances, we find the benefits of consolidation relied on by the ' Staff to outweigh the marginal increase in risk which might result. To minimize any such risk, however, we are conditioning the f
consolidation upon the Staff's separation of the seismic review (insofar as l
it involves the determination of the SSE and the resulting peak ground acceleration at the site) from the remainder of the SEP review.1S r
10/ The progress of the seismic SEP review for LACBWR (Topic II-4) appears to be much further advanced than the SEP program as a whole.
NUREG-0485, Vol. 3, No. 8, supra, at p. 2-19.
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. Such separation will permit litigation of those seismic issues prior to other safety or environmental issues. Although we recognize that the SEP seismic review may be more comprehensive th,an the review which would be undertaken for the SC proceeding, we would expect that at least the relevant portion of the Staff's seismic review could be completed prior to the spring of 1982, although not necessarily by September, 1981. We direct the Staff to furnish us quarterly reports (beginning October 1,1981) on the progress of the SEP seismic review for LACBWR.
3.
As a result of consolidation, we see no reason to continue the delay in pretrial procedures concerning environmental issues imposed by our Order of September 29, 1980. Those procedures may now be resumed. As requested by the Staff, its motion of April 9,1981 to compel the consolidated parties' response to interrogatories is dismissed without prejudice to refiling interrogatories during the discovery period for the consolidated proceeding. With respect to seismic issues, that period will commence at this time-We will establish further discovery guidelines after issuance of the Staff's report on the SSE and ground-acceleration issues.
l For the foregoing reasons, it is, this 19th day of August,1981 ORDERED i
1.
That, subject to the conditions outlined herein, the Staff's Motion i
for Consolidation of Proceedings is hereby granted.
2.
That the Board's Order dated September 29, 1980 imposing a delay in pretrial procedures concerning environmental issues in the OL proceeding is hereby rescinded.
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That the Staff's motion dated April 9,1981, to compel response to interrogatories is hereby dismissed, without prejudice to the refiling of interrogatories on seismic questions in the,0L proceeding.
v FOR THE ATOMIC SAFETY AND LICENSING BOARD kkn /n bH!lw g
Charles Bechhoefer, Cnaigman ADMINISTRATIVE JUDGE 4
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