ML20024F240
| ML20024F240 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/30/1983 |
| From: | Cutchin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8309090113 | |
| Download: ML20024F240 (14) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION BEFORE THE COMISSION In the Matter of METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (Three Mile Island Nuclear Station, Unit No. 1)
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NRC STAFF'S BRIEF IN RESPONSE TO C0 m ISSION'S ORDER DATED AUGUST 5, 1983 James M. Cutchin IV August 30, 1983 Counsel for NRC Staff y)t3;cnATkORIGINAL D
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COM4ISSION BEFORE THE COMMISSION In the Matter of METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (Three Mile Island Nuclear Station.
Unit No. 1)
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NRC STAFF'S BRIEF IN RESPONSE TO COMMISSION'S i
ORDER DATED AUGUST 5, 1983 i
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James M. Cutchin IV August 30, 1983 Counsel for NRC Staff f i i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (Restart)
(Three Mile Island Nuclear Station, UnitNo.1)
NRC STAFF'S BRIEF IN RESPONSE TO COMMISSION'S ORDER DATED AUGUST 5, 1983 I.
INTRODUCTION
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In an order dated August 5,1983 the Comission announced its decision "to take review of that portion of ALAB-724M which addresses whether the concerns raised by BN-83-47U are outside the scope of the TMI-1 adjudicatory proceeding." The Comission also announced its intent to decide, "if these matters are within the scope of the proceeding, l:
whether the information contained in BN-83-47 warrants reopening the li l;
record sua sponte." To assist it in its determinations the Comission i
requested briefs from the parties on (1) whether the concerns raised by BN-83-47 are outside the scope of the proceeding; and (2) whether, if they are within the scope of the proceeding, the information contained in BN-83-47 warrants reopening the record sua sponte.
In addition, l
l lj 17 NRC
,slipopinion(April 20,1983).
Memorandum for the Comissioners from Darrell G. Eisenhut, " Board 2
Notification Regarding the Need for Rapid Primary System Depressuri-zation Capability in PWR's (BN-83-47)," dated April 4,1983.
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.. the Commission noted a request by Chainnan Palladino that the parties address the points made in a preliminary discussion of why the issue of PORV safety-grade qualification, as it applies to steam generator tube ruptures (SGTR), may not be within the scope of the restart proceeding.3_/
The Staff's views on these matters are presented below.
II. ARGUMENT A.
The Concerns Raised By BN-83-47 Are Outside the Scope of the Restart Proceeding.
I In its August 9,1979 Order and Notice of Hearing the Comission directed that the subjects to be considered at the hearing in the l
restart proceeding include whether certain short and long tenn actions recomended by the Director of Nuclear Reactor Regulation were necessary and sufficient to provide reasonable assurance that TMI-I can be operated without endangering the health and safety of the public. CLI-79-8, 10 j
NRC141,148(1979).
Before ruling on the admissibility of contentions to the proceeding, the Licensing Board received the views of the parties and u
petitioners to intervene on both the scope of the proceeding and whether 3]
That discussion as set forth in the order reads as follows:
The point raised in BN-83-47 is that without safety grade depressurization capability, a licensee's analysis showing that Part 100 dose limits are met is called into question.
The issues relating to the operability of the PORV that were raised in connection with the THI-2 accident were concerned with the capability to remove decay heat in the event of a LOCA. However, that is not the issue that was raised in the staff's notification. BN-83-47 raised no issues with respect to PORV qualification that might be of Encern in assuring decay heat removal in the event of a SGTR or any other small break LOCA. Although decay heat removal capability is within the scope of the proceeding, capability to meet Part 100 dose limits is not.
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3-the contentions advanced by the various petitioners were within that scope.
In its First Special Prehearing Conference Order dated December 18, 1979 the Licensing Board stated that it saw little practical difference between the definition of scope proposed by the NRC Staff / and the 4
definition advanced by UCS and several others. LBP-79-34, 10 NRC 828, 831(1979). However, the Licensing Board also stated that it had experienced a problem in applying a scope test to some of the contentions advanced by petitioners to intervene and had resolved its l
doubts in favor of admitting safety-related issues.
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Thus, it had admitted any otherwise allowable contention having a reasonable nexus to the THI-2 accident. LBP-81-32,14NRC381,394(1981).
No party in its contentions sought to raise any issue related to a SGTR accident. The subject of SGTR accidents first came up in the proceeding on December 10, 1980 during Mr. Pollard's cross-examination for UCS of the Licensee's witnesses on their prefiled testimony on UCS Contention 3.
See Tr. 7930.
In its Contention 3, UCS had asserted that, because they are necessary to maintain natural circulation at hot-standby conditions, l
the pressurizer heaters must be safety-grade. LBP-81-59, 14 NRC 1211, ij -
1267(1981).
In connection with the cross-examination by UCS of Licensee's witnesses there was considerable discussion as to whether questions on a SGTR accident were within the scope of either UCS Contention 3 or the restart proceeding. Without ruling on whether litigation of a SGTR accident 4)
The NRC Staff had expressed the view that for a contention to be admissibic there must be some reasonable nexus between the TMI-2 accident and the issue sought to be raised by the contention. Tr.
i 152.
In an unpublished Order dated March 14, 1980 the Commission itself endorsed this " reasonable nexus" requirement.
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is within the scope of the proceeding the Licensing Board ruled that, because a SGTR accident for purposes of UCS Contention 3 could be viewed as just another small break LOCA, litigation of a SGTR accident was outside the scope of UCS Contention 3.
Tr. 7989; Tr. 8267; Tr. 8271; Tr. 8272; Tr. 8273.
The question as to whether evidence related to a SGTR accident
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should have been admitted also arose when UCS filed its Exception 31 to theLicensingBoard'sevidentiarhrulings.
In dealing with UCS's arguments on this matter in ALAB-729 the Appeal Board referred both to ALAB-724 in which it had concluded that a SGTR accident is outside the scope of the
-l restart proceeding and to BN-83-47 in which the NRC Staff states its view that to limit' primary to secondary leakage to amounts predicted in _
licensing analyses of a SGTR accident PWRs must have a rapid primary system depressurization capability and that this function is presently perfonned by non-safety grade equipment. ALAB-729, 17 NRC
, slip opinion,82atn.169and111(May26,1982).5f 5J The Appeal Board also noted its belief that by indicating in BN-83-47 its intent to require that plants not yet licensed have safety-grade PORVs the Staff had changed its position as to whether a safety-grade PORV is necessary to mitigate the consequences of any design basis accident. ALAB-729, slip opinion, 111 at n. 238; ALAB-724, slip opinion, 3.
In BN-83-47 the Division of Systems Integration of the Office of Nuclear Reactor Regulation expre:;ses its view that the means of rapid depressurization should te a safety-grade PORV. The NRC Staff has not yet concluded that only a PORV can perform the rapid depressurization function and thus that a safety-grade PORV is necessary, i.e., that a safety-grade PORY is a component without which a finding of reasonable assurance of adequate safety cannot be made. See ALAB-729 slip opinion, 14-16. Moreover, in a follow-up to BN-83-47 the Staff made clear that the need for safety-grade PORVs on operating reactors will be evaluated generically and consistent with established backfitting criteria and-procedures. See Memorandum for the Commissioners from Darrell G. Eisenhut, " Status of PORY Issues for Westinghouse, B&W andCEPlants(BoardNotification83-110),"datedAugust 26, 1983.
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5-In the Staff's view a correct application of the scope test endorsed by the Comission itself leads to the conclusion that was reached by the Appeal Board in ALAB-724 and ALAB-729.
In other words, the concerns raised by BN-83-47 are outside the scope of the TMI-1 restart proceeding.
As the preliminary discussion on which Chairman Palladino requested comments suggests, the concern which is the subject of BN-83-47 is, at bottom, a concern about potential offsite doses that may result from failure to terminate primary to secondary leakage rapidly enough, rather than a concern about failure to adequately cool the core, during a SGTR accident.
There is no reasonable nexus between the THI-2 accident and issues of offsite doses from failure to terminate primary to secondary leakage during a SGTR accident, which is the subject of BN-83-47. Only issues related to the capability to adequately cool the core following a small break LOCA and/or main feedwater transient (not an issue raised by BN-83-47) are within the scope of the design issues litigable in the ristart proceeding.
Thus, the Staff believes the Appeal Board correctly concluded that the concerns raised by BN-83-47 are outside the scope of the TMI-1 restart proceeding.
B.
The Infonnation Contained in BN-83-47 Does Not Warrant Sua Sponte j
Reopening of The Record The standards for deciding whether the evidentiary record on safety e
issues should be reoper.ed are relatively well defined in NRC case law for the situation where reopening is sought by a party. The standards for deciding whether the record should be reopened, not on motion of a 1
party but, rather, sua sponte, by an NRC appeal tribunal in a proceeding, I
are less well defined in NRC case law.
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. Where reopening is sought by a party, the record should be reopened only if the safety issue on which reopening is sought is both timely presented and of major significance. Vennont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973).
On the other hand, reopening on a matter of sufficient gravity may be warranted even if the matter is not timely presented. M. However, even though a matter is timely raised and involves a significant safety con-sideration, the evidentiary recohd should not be reopened unless the papers supporting and opposing reopening demonstrate the existence of a genuine unresolved issue of fact. M. The questions of whether the matter sought to be raised is significant and whether a triable issue of fact is presented may often be intertwined. M.at524. Moreover, where, as in the restart proceeding, the evidentiary record on safety issues has been closed, the Commission itself has stated that the record i.
should not be reopened absent a showing by the moving party of l
significant new evidence not included in the record that materially affects the decision.
Pacific Gas and Electric Company, (Diablo Canyon
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Nuclear Power Plant, Units 1 and 2), CLI-81-5,13 NRC 361, 362 (1981).
Although the standards to be used by an NRC adjudicatory tribunal in deciding whether it should reopen a record sua sponte are less well set forth in NRC case law, the Staff believes that guidance in the form of general principles is available.
It appears to be clear that regardless y
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of how or when the information comes to its attention (whether by a party's motion to reopen, by a party's board notification, or otherwise), any NRC l
adjudicatory tribunal having jurisdiction over the matter addressed by the information should reopen the evidentiary record to consider a problem
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coming to its attention that in its view presents a sufficiently grave threat to public safety. See Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358, 365 at n.10 (1973).
However, as the Comission itself has stated, before an NRC tribunal exercises its sua sponte authority to shape the safety issues in a t
proceeding such as by broadening previously admitted contentions or injecting totally new issues, it has an obligation to make an affirmative finding that a serious safety problem exists. Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36,
.i 14 NRC 1111, 1114 (1981). Also, where factual infonnation coming to its
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attention causes it to believe that the information must be considered by
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it in reaching its decision on a contested issue in the proceeding 1
(i.e., causes it to believe that without the information the evidentiary record on a contested issue is materially inaccurate or incomplete), an f
NRC tribunal should reopen the evidentiary record, because it cannot base i
j its decisions on contested issues admitted to NRC proceedings on factual information coming to its attention that has not been received in evidence.6_/
Moreover, where the factual disclosures to an NRC appellate tribunal create serious doubts about the correctness of a decision below on a
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An adjudicatory tribunal which bases its decision on factual information that has not been received in evidence deprives parties opposing the factual information of their opportunity to impeach such information by cross-examination or rebut it with other evidence. Tennessee Valley Authority (Hartsville Nuclear Plant, UnitsIA,2A,1 Band 28),ALAB-463,7NRC341,352(1978).
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pn contested issue admitted to a proceeding the tribunal may order the record to be reopened for the taking of supplementary evidence to resolve those doubts. Hartsville_, ALAB-463, 7 NRC at 352.
In circumstances such as exist in this proceeding, where both the Licensing Board's decision and the Appeal Board's decision on the appeals of the Licensing Board's decision on design issues have been issued, and where no party has sought a reopening of the record on the concerns raised in BN-83-47, the Commissibn should not reopen the evidentiary record sua sponte to consider the concerns raised in BN-83-47, even if it were to decide that the concerns are within the scope of the proceeding, if unless(1)itcanmakeanaffirmativefindingthattheinformationin BN-83-47 demonstrates the existence of a problem that presents a grave threat to public safety, or (2) it believes that omission of the i
infonnation in BN-83-47 from the evidentiary record would leave that record materially inaccurate or incomplete on a contested issue admitted totherestartproceeding,or(3)theinformationinBN-83-47has i
created serious doubts about the correctness of a decision below on a contested issue admitted to the restart proceeding and the Connission believes the taking of supplementary evidence is required to resolve thosedoubts.E The information in BN-83-47 indicates that the Division of Systems Integration (DSI) of the Office of Nuclear Reactor Regulation has y
However, in a situation where a safety concern coming to its attention is not within the scope of an ongoing proceeding, the i
Commission in appropriate circumstances could broaden the scope of the ongoing proceeding or initiate a new proceeding to consider the concern.
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_. _ _ _ concluded, that to effectively mitigate a design basis SGTR accident, pressurized water reactor plants should include a safety-grade means for rapidly depressurizing the primary system.
In addition, it indicates that DSI does not believe that the potential for prolonged primary to secondary leakage and the resulting increased offsite radiological doses hasbeenconsideredinSGTRaccidentanalyses(exceptfortheMidland i
analyses) for steam generators designed by Babcock and Wilcox. The information also indicates the Staff's intent to require that plants not
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yet licensed (except those with reactors supplied by Combustion Engineering)havesafety-gradePORVs. The information does not indicate j
that a safety-grade PORV is the only acceptable means for rapidly t
l depressurizing the primary system. According to BN-83-47, in some plants with reactors designed by Combustion Engineering the depressurization function would be accomplished by a safety-grade spray system. Moreover, f
the information does not support a conclusion that, without a safety-grade j
rapid depressurization capability, offsite doses resulting from a SGTR i
accident would exceed 10 CFR Part 100 guideline values at the TMI-1 site or that any operating reactor without such a capability should be shutdown until DSI's concerns are resolved. To the contrary, the information indicates that DSI is currently evaluating the actions that may need to f
be taken on operating reactors to resolve its concerns.8
- Clearly, 8]
The Commission previously has stated its belief that THI-1 should be dealt with as an operating reactor unless information already in the evidentiary record dictates otherwise and that no action should be taken to reopen the record or otherwise delay the proceeding in any l
way in order to decide whether THI-1 should be treated as other than an operating reactor. CLI-81-3,13NRC291,295-296(1981).
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. - - -... the information in BN-83-47 does not raise a problem that presents a grave threat to public safety. Furthermore, it does not create serious doubts about the correctness of a decision below oa a contested issue admitted to the proceeding that requires the taking of supplementary evidence to resolve and its omission from the evidentiary record would not leave that record materially inaccurate or incomplete on a contested issue admitted to the proceeding. Thus, based on an application of the standards indicated above, the ii5 formation ' contained in BN-83-47 would not warrant a sua sponte reopening of the record in the TMI-1 restart proceeding by the Comission, even if consideration of the dose consequences of a SGTR accident were to be viewed as within the scope of the restart procee.' ding.
III. CONCl.USION For the reasons stated above, the concerns raised by BN-83-47 are not within the scope of the TMI-1 restart proceeding and the information in BN-83-47 does not warrant a sua sponte reopening of the evidentiary record by the Comission, even if those concerns were within the scope of a
the proceeding.
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Respectfully submitted, A
=:v% N wr James M. Cutchin IV l
Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of August, 1983 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COM11SSION BEFORE THE C06911SSION In the Matter of METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (Restart)
(Three Mile Island Nuclear Station, UnitNo.1)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN RESPONSE TO COMMISSION'S ORDER DATED AUGUST 5, 1983" 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, by deposit in the Nuclear Regulatory Comission's internal mail system, this 30th day of August.
1983:
- Samuel J. Chilk
- Christine N. Kohl Secretary of the Comission Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Washington, DC 20555 Board U.S. Nuclear Regulatory Comission
- Herzel H. E. Plaine, General Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission L
L Washington, DC 20555
- John H. Buck Administrative Judge
- Ivan W. Smith Atomic Safety & Licensing Appeal Administrative Judge Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 George F. Trowbridge, Esq.
j Dr. Walter H. Jordan Shaw, Pittman, Potts & Trowbridge u
Administrative Judge 1800 M Street, NW h
881 W. Outer Drive Washington, DC 20036 Oak Ridge, Tennessee 37830 Douglas R. Blazey, Esq.
i Dr. Linda W. Little Chief Counsel Administrative Judge Department of Environmental Resources 5000 Hermitage Drive 514 Executive House, P.O. Box 2357 j
Raleigh, North Carolina 27612 Harrisburg, PA 17120 Mr. Thomas Gerusky
- Gary J. Edles, Chairman Bureau of Radiation Protection L
Atomic Safety & Licensing Appeal Dept. of Environmental Resources I
Board P. O. Box 2063 U.S. Nuclear Regulatory Comission Harrisburg, PA 17120 l-Washington, DC 20555 c _ _ ____ _....,..
Gary L. Milho111n, Esq.
Honorable Mark Cohen 4412 Greenwich Parkway, NW 512 D-3 Main Capital Building Washington, DC 20007 Harrisburg, PA 17120 Mr. Marvin I. Lewis William S. Jordan, III Esq.
6504 Bradford Terrace Hamon & Weiss Philadelphia, PA 19149 1725 I Street, NW Suite 506 Mr. C. W. Smyth, Supervisor Washington, DC 20006 Licensing TMI-1 Three Mile Island Nuc1 car Station John Levin, Esq.
P. O. Box 480 Pennsylvania Public Utilities Com.
Middletown, PA 17057 Box 3265 Harrisburg, PA 17120 Ms. Marjorie Aamodt R.D. #5 Jordan D. Cunningham, Esq.
Coatesville, PA 19320 Fox, Farr.and Cunningham 2320 North 2nd Street Gail Phelps Harrisburg, PA 17110 ANGRY /TMI PIRC i
1037 Maclay Street Louise Bradford Harrisburg, PA 17103 Three Mile Island Alert 1011 Green Street i
Allen R. Carter, Chairman Harrisburg, PA 17102 Joint Legislative Comittee on Energy Post Office Box 142 Ms..Ellyn R. Weiss i
Suite 513 Hamon & Weiss I
Senate Gressette Building 1725 I Street, NW l
Columbia, South Carolina 29202 Suite 506 Washington, DC 20006
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l Chauncey Kepford Judith Johnsrud Mr. Steven C. Sholly i
i Environmental Coalition on Nuclear Power Union of Concerned Scientists 433 Orlando Avenue 1346 Connecticut Avenue, NW State College, PA 16801 Dupont Circle Building, Suite 1101 Washington, 3C 20036 Ms. Frieda Eerryhill, Chairman Coalition for' Nuclear Power Plant
- Dr. Lawrence R. Quarles Postponement Atomic Safety & Licensing Appeal 2610 Grendon Drive Board Wilmington, Delaware 19808 U.S. Nuclear Regulatory Comission Washington, DC 20555 Mr. Henry D. Hukill i
i Vice President
- Judge Reginald L. Gotchy GPU Nuclear Corporation
-Atomic Safety & Licensing Appeal Post Office Box 480 Board Middletown, PA 17057 U.S. Nuclear Regulatory Ccmission Washington, DC 20555 j
Michael McBride, Esq.
LeBoeuf, Lamb, Leiby & McRae Ms. Jane Lee t
Suite 1100 R.D. 3; Box 3521 1333 New Hampshire Avenue, NW Etters, PA 17319 Washington,DC 20036 l
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-David E. Cole
- Atomic Safety & Licensing Smith & Smith, P.L.
Board Panel Riverside Law Center U.S. Nuclear Regulatory Comission 2931 N. Front Street Washington, DC 20555 Harrisburg, PA 17110
- Atomic Safety and Licensing Appeal Michael W. Maupin, Esquire Board Panel Hunton & Williams U.S. Nuclear Regulatory Comission 707 East Main Street Washington, DC 20555 P. O. Box 1535 Richmond,VA 23212 9
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ado'cketing & Service Section Office of the Secretary
' U.S. Nuclear Regulatory Comiss, ton i,
Washington, DC 20555
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i James M. Cutchin IV Counsel for NRC Staff
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