ML20028B891
| ML20028B891 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 12/06/1982 |
| From: | Cutchin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8212070155 | |
| Download: ML20028B891 (9) | |
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M December 6, 1982 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CLEVELAND ELECTRIC ILLUMINATING
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Docket No. 50-440 OL COMPANY, ET AL.
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50-441 OL
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(Perry Nuclear Power Plant,
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Units 1and2)
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NRC STAFF MOTION FOR RECONSIDERATION AND DISMISSAL OF ISSUE #8 I.
INTRODUCTION AND MOTION In a Memorandum and Order dated March 3,1982 the Licensing Board admitted Issue #8, a late-filed hydrogen control contention, to litigation in this proceeding.
LBP-82-15, 15 NRC 555, 560-563 (1982).
For the reasons discussed below the NRC Staff respectfully requests that the Licensing Board reconsider, in light of intervening events, its adnission of Issue #8 to litigation and dismiss it on the grour,d' tnat it was inadmissible ab initio.
II. DISCUSSION Prior to the Special Prehearing Conference held on June 2 and 3, 1981, both Sunficwer Alliance Inc. (Sunflower) and Chio Citizens for Responsible Energy (OCRE) filed " hydrogen control" contentions but were unable to articulate a scenario which met the standard for litigation of hydrogen control neasures beyond those required by 10 CFR 50.44 as mandated by Metropolitan Edison Company (Three Mile Island Nuclear DESIGNATED ORIGINAL 8212070155 821206 Certified By D507 $ 63 PDR ADOCK 05000440 0
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l Station, Unit No. 1), CLI-80-16, 11 NRC 674 (1980), and those contentions were not admitted to litigation in this proceeding.
LBP-81-24, 14 NRC 175, 207-208 (1981).
- In January 1982 Sunflower resubmitted its original hydrogen control contention and an example of what it viewed to be a specific accident scenario, and the Licensing Board over the objections of the Staff and the Applicants admitted Sunflower's hydrogen control contention to litigation in this proceeding, albeit in a rewritten form. LBP-82-15, 15 MRC 555, 560-563 (1982). The Board's discussion of its reasons for t
admitting the contention indicates that it was swayed primarily by its view that Commission " utterances" more recent than those in CLI-80-16 were suggestive of a substantial shift in the Conmission's position and inconsistent with the Commission's position in CLI-80-16 on which the Board relied in earlier declining to admit the contention.
Id. at 561.
fioreover, the Board intentionally excluded from the reworded contention any reference to the mechanism by which hydrogen can be generated and stated its view that little purpose would be served by litigating the likelihood that any one of the scenarios suggested by Sunflower to be possible would occur, because "[t]here is little doubt that any one scenario, except perhaps for the occurrence of human error, would be highly unlikely to occur."
I_d. at 563.
As the Licensing Board knows, Applicants sought to have the Appeal i
Board reverse the ruling of the Licensing Board that admitted Issue #8.
In its Memorandum and Order denying Applicant's notion for directed certification of the Licensing Board's ruling, the Appeal Board, although it stressed that it was expressing no judgment on the Licensing Board's
, 4 assumption of the existence of a credible accident scenario or whether a THI-2 type accident at Perry is credible,1/ stated that "the Licensing Board's opinion requires litigation of Sunflower's restated hy6rogen cont'rol contention, as construed in the context in which it was raised:
i.e., the contention is predicated on the assun ition of a TMI-2 type accident."2_/ The Appeal Board noted that:
[T]he [ Licensing] Board did not specify the particular type of " credible" accident it has assumed. Different types of accidents, however, result in different rates and quantities of hydrogen generation. A given hydrogen-generating mechanism thus has obvious relevance to the efficacy of a hydrogen control system.
In order to litigate meaningfully the ade-quacy of such a system, a particular accident or accidents should be specified. ALAB-675 at 1114-15.
Although in denying Applicants' Motion for directed certification the Appeal Board implied no opinion on either (1) whether the Licensing Board could properly assume the existence of any credible accident or (2) whether a TMI-2 type accident at Perry is credible, the Appeal Board did make clear that, contrary to the doubts indicated by the Licensing Ec?rd to have beavily influenced its decision tc admit late-filed Issue F8, the requirements defined by the Commission in CLI-80-16 for litigation of hydrcgen control measures beyond those required by 10 CFR 50.44 apply to
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this proceeding.
See ALAB-675 at 1114.
The Commission in CLI-80-16 declined to waive 10 CFR 50.44 but stated that hydrogen control neasures beyond those required by 10 CFR 50.44 would be required under 10 CFR 100 only "if it is determined that j
there is a credible loss-of-coolant accident scenario entailing hydrogen 1/
ALAB-675, 15 ftRC 1105, 1116 at t. 14 (1982) 2/
Id. at 1115.
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, generation, hydrogen combustion, containment breach or leaking, and off-site radiation doses in excess of Part 100 guidelines." CLI-80-16, supra at 675. Moreover, the Commission clearly stated regarding litiga-tion'of a hydrogen control issue under 10 CFR 100 that:
Under Part 100 the likelihood of an accident entailing generation of substantial (in excess of 10 CFR 50.44 design bases) quantities of hydrogen, the likelihood and extent of hydrogen combustion, and the ability of the reactor contain-ment to withstand any hydrogen combustion at pressures below or above containment design pressure would all be at issue.
A critical 17ue here would be the likelihood of an operator interfering with ECCS operation. CLI-80-16, supra at 676.
The Commission noted that if it were to suspend 10 CFR 50.44, which "at least for the interim until the degraded core rulemaking can be.
completed" it declined to do:
[Any safety evaluation of the effectiveness of hydrogen control measures would need only] assume that a loss-of-coolant accident is certain to occur, that any hydrogen generated is certain to burn, and that the containment is certain to fail at pressures in excess of design pressure. The only issues would be how much hydrogen would likely be generated and whether the pressures resulting from combustion of the hydrogen would exceed contain-ment design pressure.
CLI-80-16, supra at 676.
Therefore, it is crystal clear that the Licensing Board's assumption of a credible scenario is in direct conflict with CLI-80-16.
Until it has been determined based on the evidentiary record that such a scenario exists, hydrogen control measures beyond those required by 10 CFR 50.44 cannet be imposed by a Licensing Board.
Thus litigation of the effec-tiveness of such hydrcgen control reasures prior to litigation of the existence of a credible scenario requiring them, as mandated by CLI-80-16, would be a useless exercise.E
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As noted above, although it made clear that the requirements in CLI-80-16 for litigation of hydrogen control measures beyond those required by 10 CFR 50.44 apply to this proceeding, the Appeal Board specifically withheld judgnent on the propriety of the Licensing Board's assumption of the existence of a credible scenario.
5-Sunflower in resubmitting its hydrogen control contention did not provide an adequately specific scenario for litigation. OCRE, now the lead intervenor on Issue #8, has taken the position that it has no resp'onsibility to-define the accident scenario that will govern the litigation of Issue #8 but that the Licensing Board was assigned'that responsibility under 0CRE's reading of ALAB-675.0 The Staff strongly dis grees that the Licensing Board must originate the scenario to be litigated.
For it to do so would be tantamount to the raising of a contention sua sponte, action that is now subject to special procedures.
ALAB-675, supra at 1115.
It is the duty of the party who seeks to require hydrogen control measures beyond those presently required by 10 CFR 50.44 to define the specific scenario to be litigated, or no admissible contention exists.
See CLI-80-16, supra.
It is the duty of the Licensing Board only to determine whether "there is a credible loss-of-coolant accident scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiation doses in excess of Purt 100 guideline values" Lefore allowing litigacion of the efficacy of propcsed additional requirements.
Id.
d The Appeal Board emphasized that Issue #18 is predicated on the assumption of a TMI-2 type accident and that to meaningfully litigate the adequacy of additional hydrogen control measures beyond those 4_/
See "0CRE Response to Applicants' Interrogatories and Request for Production of Documents to Intervenor Ohio Citizens for Responsible Energy (Second Set)" dated November 15, 1982 at p. 4.
See also "0hio Citizens for Responsible Energy Resubmission of Sixth Set of Interrogatories to Staff with the Presiding Office and Motion Requesting the Presiding Officer to Require the NRC Staff to Answer Same" dated November 30, 1982 at n. 1.
- required by 10 CFR 50.44 a particular (emphasis added) accident is required. ALAB-675 at 1115. OCRE has denied the responsibility to specify, and expressed an inability to specify, the scenario to be
+tgated.
Supra at n. 4 The Licensing Board in this proceeding recognized its duty to deny admission to litigation of a hydrogen control contention where the Intervenor has not proposed a specific (emphasis added) accident scenario by stating that "without such a scenario we are now powerless to admit this particular [ hydrogen control] contention."$I LBP-81-24, supra at 208.
The Appeal Board's noting that "[i]t is the Licensing Board's-function to determine what a [ credible] TMI-2 type. accident is, insofar as the Perry facility is concerned,"E oes not conflict with the view d
that the party seeking to litigate a contention such as Issue #8 must identify a credible scenario before the contention is admissible to litigetion. Moreover, the Appeal Board has clearly stated that a Licensing Board is not authorized to admit conditionally, for any reason, a contention that falls short of meeting the specificity requirementsU and that "the Rules of Practice [do not] permit the filing of a vague, I
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The Licensing Board in the Seebrook operating license proceeding agrees that in the absence of the identification of a credible scenarin by an Interver.or a contention such as Issue 38 is ret ednissible.
Public Service Company of New Parrpshire (Scabrook Station, Units 1 and 2), Memorandum and Order dated September 13, f
1982 at 20.
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ALAB-675, supra at 1115, n. 13.
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Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-587, 16 NRC
, slip opinion at 11 (August 19,1982).
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7-unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or staff."S/
Thus events transpiring since the Licensing Board's ruling admitting Issue #8 to litigation compel a conclusion that the contention was not admissible when it was admitted by the Licensing Board, that the'conten-tion has not been further particularized as indicated by the Appeal Board to be required for meaningful litigation, and that discovery to attempt to identify a specific credible scenario to render the contention admissi-ble is not permitted by the Rules of Practice.
III. CONCLUSION For all of the reasons discussed above, Issue #8 should be dismissedasinadmissiblea'binitio.E/
Respectfully submitted, u. w w =1=
James M. Cutchin IV Counsel for NRC Staff Dated 6t Bethesda, Marylar.d this 6th day of December,1982 l
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Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1),
ALAB-696, 16 NRC
, slip opinion at 32 (October 1, 1982).
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The practice followed by the Appeal Board is that it is unnecessary for a party to respond to a motion for reconsideration unless specifically requested by the Board to do so. Houston Lighting and Power Conpany (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-544, 9 NRC 630, 631 (1979).
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CLEVELAND ELECTRIC ILLUMINATING
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Docket No. 50-440 OL COMPANY, ET AL.
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50-441 OL
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(Perry Nuclear Power Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION FOR RECONSIDERATION AND DISMISSAL OF ISSUE #8" in the above-captioned proceeding have.een 6
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 Commission's internal mail system, this 6th day of December,1982:
- Peter B. Bloch, Esq., Chairman Donald T. Ezzone, Esq.
Administrative Judge Assistant Prosecuting Attorney Atccic Safety and Licensing Board 105 Main Street U.S. Nuclear Regulatory Commission Lake County Administration Center Washington, DC 20555 Painesville, Ohio 44077
- Dr. Jerry R. Kline Susan Hiatt Administrative Judge 8275 Munson Road Atomic Safety and Licensing Board Mentor, Ohio 44060 U.S. Nuclear Regulatory Commission Ueshington, DC 20555 Daniel D. Wilt, Esq.
P. O. Box 08159
- Mr. Frederick J. Shon Cleveland, Ohio 44108 Administrative Judge Atonic Safety and Licensing Board Terry lodge, Esq.
U.S. Nuclear Regulatory Comnission Attorney for Intervenors Washington, DC 20555 915 Spitzer Building Toledo, Ohio 43604 Jay Silberg, Esq.
Shaw, Pittman, Potts and Trowbridge John G. Cardinal, Esq.
1800 M Street, NW Prosecuting Attorney Washington, DC 20036 Ashtabula County Courthouse Jefferson, Ohio 44047 4
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- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555
- Document 11anagement Branch Docunent Control Desk Room 016, Phillips Building A
C we N M: w James M. Cutchin IV Counsel for NRC Staff i
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