ML20024A483
| ML20024A483 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 06/16/1983 |
| From: | Bachmann R, Goddard R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-725, LBP-82-97, NUDOCS 8306170363 | |
| Download: ML20024A483 (12) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3
BEFORE THE COMMISSION In the Matter of CONSUMERS POWER COMPANY Docket No. 50-155 (Big Rock Point Plant) e, NRC STAFF'S ANSWER IN OPPOSITION TO INTERVENORS' PETITIONS FOR REVIEW l
Richard G. Bachman Counsel for NRC Staff Richard J. Goddard CounseT for NRC Staff l
June 16, 1983 DESIG?7ATED ORIGIITAIj E
Certifien n,,
8306170363 830616 DR ADOCK 05000 p
June 16,1983 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0m11SSION h
BEFORE THE COMMISSION In the Matter of CONSUMERS POWER COMPANY
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Docket No. 50-155 (Big Rock Point Plant)
NRC STAFF'S ANSWER IN OPPOSITION TO INTERVENORS' PETITIONS FOR REVIEW I.
INTRODUCTION On June 2,1983 Intervenors Christa-Maria, Mills and Bier
("Christa-Maria et al.") and John O'Neill ("O'Neill") filed separate petitions 1/ or Comission review of the Atomic Safety and Licensing f
4 Appeal Board (" Appeal Board") Decision, ALAB-725, 17 NRC __ (Slip Opinion, April 27,1983).
In ALAB-725 the Appeal Board issued an order vacating
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and remanding the Initial Decision (Concerning Neutron Multiplication Factor), LBP-82-97, 16 NRC (Slip Opinion, October 29,1982)(" Initial Decision") issued by the Atomic Safety and Licensing Board (" Licensing Board"). As discussed below, the NRC staff opposes both petitions and urges that they be denied.
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Mr. O'Neill entitled his petition " Motion for Coprnission Review."
Christa-Maria et al. originally entitled their petition " Motion to Reconsider," wWicF was subsequently changed to " Motion for Commission Review" by a telex sent on June 6, 1983. These filings will be referred to as the "0'Neill Petition" and the " Bier Petition," respectively, in order to conform to Commission nomenclature.
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II. BACKGROUND This proceeding concerns an application for a license amendment to permit revacking, and thus increase the capacity, of'the spent fuel pool at the Big Rock Point Plant. The contention which forms the basis for the petitions for review was submitted by Intervenor O'Neill and alleges:
The application has not adequately analyzed the possibility of criticality occurring in the fuel pool because of the increased density of storage without a gross distortion of the racks.
The contention withstood motions for sumary disposition filed by the licensee and the Staff,U and was litigated at the evidentiary hearing held in Boyne Falls, Michigan on June 10-12, 1982.
(Tr. 1391-1468, 1503-1692,1748-2002,2006-2009,2092-2094,2383-2384).
Following the hearing, the Licensing Board issued its Initial Decision which, inter alia, ordered the licensee to amend its application for the license amendment to demonstrate that the neutron multiplication factor (Keff)
"in its spent fuel pool will not exceed 0.95 under any conditions;3.f including extremely low densities of water."
Initial Decision at 24.
The Licensing Board had_found that this condition could not arise unless
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Memorandum and Order (Denying Summary Disposition of Criticality Contention) dated February 5, 1982.
3f A system containing fissionable material -- such at a spent fuel pool -- is " critical," or "supercritical," if it is capable of supporting a neutron chain reaction. This condi, tion is expressed in terms of the " effective neutron multiplication factor" (k i.e.,theratioofthenumberofneutronsproducedbyfissio8in)--
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f each generation to the number of neutrons lost by absorption and leakage. Thus, when a system is critical or supercritical, k equals or is greater than 1.0.
See ALAB-725, slip op. at 2. eff
a substantial part of the water in the spent fuel pool boiled away and was replaced by mist or some other form of low density water. M.at15-18.
However, it declined to consider the reliability of a' makeup line, an engineered safety feature which would maintain the pool in a flooded condition preventing low density water conditions from arising. M. at
- 15. The Appeal Board determined that the Licensing Board had erred in
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failing to consider regulatory requirements in General Design Criteria 61 and L_, which require that engineered safety features such as the water makeup line be present to prevent a significant loss of coolant.
ALAB-725,Slipop.at19-20.0 The Appeal Board therefore vacated the order requiring the licensee to amend its amendment application and remanded the matter to the Licensing Board "with instructions to the Board to 'nake its finding on the adequacy of the applicant's criticality analysis contingent upon the reliability of the makeup line."
Id. This Appeal Board decision forms the basis for these two petitions for Commis-sion review.
III. ARGUMENT A.
No Important Matter that Could Affect the Health and Safety of the Public is Presented for Review 10 CFR l 2.786(b)(4)(i) provides in part:
(i) A petition for [Comission] review yill not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety,,or... con-stitutes an important procedural issue, or otherwise raises important questions of public policy.
y The Board further concluded that Staff guidance was not at variance with these regulatory requirements. See, ALAB-725, slip op. at 12-15, 18-19.
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-4 The Petitioners fail to meet these standards in their petitions for review of ALAB-725.
In ALAE-725 the Appeal Board remanded this proceed-ing to tRe Licensing Board to consider the reliabilit'y of the engineered
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. safety l feature, a water make-up line, which would prevent " boil-off" and criticality in the spent fuel pool.
The Bier petition states as its primary concern that:
"There is no safety grade' equipment associated with spent fuel pool cooling at the Big Rock facility."
(BierPetitionat1). The O'Neill petition states: "The main policy error that the Appeal Board made was in not considering the consequences of makeup water line failure in the Big Rock Pool."
(O'Neill Petition at 7). Where the Appeal Board has specifically remanded to the Licensing Board the question of the safety reliability of the makeup water line, no question is now presented, prior to the Licensing Board's. decision on remand, that could significantly affect the public health and safety or could involve any important questions of public policy.
The Appeal Board, in a practical sense, has not made a decision l
l or taken an action with regard to the adequacy of the proposed makeup line.
Thus, any assignment of error with regard to the ability of the makeup line to reliably foreclose accidents does not constitute a proper subject for Commission review within the language of 10 C.F.R. 5 2.786(b)(4)(i).
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B.
The Bier Petition Should be Denied Because it is Based Entirely on Matters of Fact or Law not Previously Raised Before the Atomic Safety and Licensing Appeal Board The requirements for a petition for Commission review of a decision or action by the Appeal Board are set forth in 5 2.786 of the Commission's regulations. One specific requirement is that:
A petition for review... shall contain the following:
(ii) A statement (including record citation) where the matters of fact or law raised in the petition for review were previously raised before the Atomic Safety and Licensing Appeal Board and, if they were not why they could not have been raised.
10 C.F.R. 5 2.786(b)(2)(ii).
The companion provision states:
The grant or denial of a petition for review is within the discretion of the Commission, except that:
(iii) A petition for review will not be granted to the extent that it relies on matters that could have been but were not raised before the Atomic Safety and Licensing Appeal Board.
10 C.F.R. 5 2.786(b)(4)(iii).
The petitioner Bier fails to show where the particular matters it seeks to bring to the CommissionE/ were raised before the Appeal 5/
The issues raised in the Bier Petition are:
1.
There is no safety grade equipment associathd with spent fuel pool cooling at the Big Rock Point Facility.
(CONTINUED)
, Board.0/ Further, there is no explanation as to why these issues could not have been raised before the Appeal Board. The Comission has stated in the SEipplemental Infomation which accompanied the promulgation of 10 C.F.R. l 2.786 that it intended a strict applic: tion of the require-ment that it would not review petitions whicii rely on matters which could havebeenbutwerenotraisedbeforetheAppealBoard.1/ See also, Houston Lighting &PowerCo.(AllensCreekNuclearGeneratingStationNo.1),
ALAB-582, 11 NRC 239, 242 (1980) (Appeal Board refused to consider matters and arguments not presented below).
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(CONTINUED) 2.
Testimony of NRC Staff witnesses Brooks and Fieno conflicts with testimony of NRC Staff witness Lantz and licensee witness Kim in regard to temperature measurements, void fraction calcula-tions, and enrichment of the fuel.
3.
The Big Rock Point spent fuel pool is unique due to radiation levels, highly enriched fuel and overmoderation.
4.
Staff witness Lantz was not familiar with the testimony of licensee witness Kim.
5.
The makeup water line should not be used as a substitute for a spent fuel pool cooling system.
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Brief of Intervenor's [ sic] in Support of Licensing Board's Decision Concerning O'Neill Contention IIE-3 dated January g8,1983.
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"The Comission in this respect intends a set of strict rules in order to retain the concept of a limited reviews Accordingly, it prefers, at this time, not to exercise its discretion within the enumerated areas of constraint'in 6 2.786(b)(4) (ii), (iii) and (iv)." 42 Fed. Reg. 22128, May 2, 1977.
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The Bier Petition is fatally flawed in seeking to raise issues before the Comission which were not raised before the Appeal Board.
-There is no apparent reason to justify an exception to this regulatory policy in the instant case.
In addition, the Bier Petition contains the same defects as the O'Neill Petition, discussed infra, in that it does not address the standards for Comission review set forth in 10 CFR 92.786(h)(4). Accordingly, for the reasons stated, the Bier Petition should be denied.
C.
The O'Neill Petition Should be Denied Because it does not Satisfy the Standards for Comission Review as Set Forth in the Regulations As discussed above, the requirements applicable to a petition for review, and the standards for the grant or denial of such a petition, are set forth in 10 C.F.R. % 2.786. Some of the issues raised in the O'Neill Petition were not raised before the Appeal Board, and there are no record citations and no explanation as to why they could not have been raised.N The remaining issues, which were previously raised and can be identified by citations to the record, do not meet the standards for Comission review.
Mr. O'Neill has not attempted to comply with any of the provisions of 10 C.F.R. 5 2.786. As we have detailed, the O'Neill Petition fails to l
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The Staff would characterize these issues as:
('l) Appeal Board's disregard of General Design Criterion 23 (petition at 4); (2) discretionary powers of the Licensing (Board (petition at 5-6);
l (3) unreliability of the ECCS system petition at 6); and (4)
Licensing Board error in failing to adopt a conservative policy toward engineered safety factors (petition at 7).
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demor: strate that this case, which has been remanded to determine the reliability of the spent fuel pool water makeup system, involves an
-important< matter that could significantly affect the public health and safety, raises an important question of public policy or satisfies any of theothercriteriaof10C.F.R.62.786(b)(4)(i).1/ He states at page 2 of his petition that he is concerned about:
(1) "at what reduced water level did the lower water pressure allow significant void fractions to occur"; and (2) "the uncertain K-effective values when these void fractions" occurred.
In view of the Appeal Board's remand to determine the reliability of the water makeup system which would prevent reduced water level and lower water pressure, no important issue involving the public health and safety can exist in regard to these matters.
Finally, the O'Neill Petition makes no claim, pursuant to 10 C.F.R.
$ 2.786(b)(4)(ii), that the Appeal Board "has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the i
resolution of that same issue" by the Licensing Board.
Indeed, both decisions below recognized that criticality would not occur if the pool were maintained in a flooded state.
See Initial Decision at 15-16, 18; ALAB-725, Slip op, at 18-20. This was the factual issue nece'ssary for l
decision.
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For example, Mr. O'Neill continually emphasizes, throughout his petition, his disagreement with the Appeal Board's interpretation of Staff guidance.
He characterizes the Appeal Board's alleged preference for a " physical system" over "the geometrically safe rack configuration" as a " serious error of law."
0'Neill Petition at 4.
The fact that Mr. O'Neill may disagree with the Appeal Board does not, without more, provide any basis for the grant of Commission review pursuant to 10 CFR ! 2.786(b)(4)(i).
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- Thus, the standards set forth for Comission review have not been met by the O'Neill Petition. Accordingly, it should be denied.
IV. CONCLUSION The Bier Petition and the O'Neill Petition fail to (1) satisfy the requirements of the Commission's regulations; (2) meet the standards for the grant of Comission review. Therefore, both Petitions should be denied.
Respectfully submitted,
>A._b e ' A
-3 Richard G. Bachmann Counsel for NRC Staff
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Ric ard J. God ard Counsel for NRC Staff Dated at Bethesda, Maryland this 16th day of June, 1983 I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION i
i In the Matter of CONSUMERS POWER COMPANY Docket No. 50-155
)
(Spent Fuel Pool Modification)
(Big Rock Point Plant)
.)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER IN OPPOSITION TO INTERVENORS' PETITIONS FOR REVIEW" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 16th day of June, 1983:
4 Thomas S. Moore, Esq.*
Dr. John H. Buck
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Christine N. Kohl, Esq.*
Philip P. Steptoe, Esq.
Atomic Safety and Licensing Michael I. Miller, Esq.
Appeal Board Panel Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission Three First National Plaza Washington, D.C.
20555 Chicago, IL 60602 Peter B. Bloch, Chairman
- Joseph Gallo, Esq.
Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board 1120 Connecticut Avenue, N.W.
U.S. Nuclear Regulatory Commission Suite 840 Washington, D.C.
20555 Washington, D.C.
20036 o
Dr. Oscar H. Paris
- John O'Neill, II Administrative Judge Route 2, Box 44 Atomic Safety and Licensing Board Maple City, Nichigan 49664 U.S. Nuclear Regulatory Commission t
Washington, D.C.
20555 Christa-Maria Route 2, Box 108c Charlevoix, MI 49720 i
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., Mr. Frederick J. Shon*
Administrative Judge Atomic Safety and Licensing Board Ms. JoAnne Bier U.S. Nuclear Regulatory Commission 204 Clinton Washington, D.C.
20555 Charlevoix, MI 49720 Atomic Safety and Licensing Judd L. Bacon, Esq.
Board Panel
- Consumers Power Co.
U.S. Nuclear Regulatory Commission 212 West Michigan Avenue Washington, D.C.
20555 Jackson, MI 49201 Atomic Safety and Licensing Mr. Jim Mills Appeal Board Panel
- Route 2 Box 108 U.S. Nuclear Regulatory Commission Charlevoix, MI 49720 Washington, D.C.
20555 Docketing and Service Section*
Samuel J. Chilk*
Office of the Secretary Office of the Secretary U.S. Nuclcar Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 2--
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RTchard J ddard Counse r NRC Staff N
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