ML20043G156
| ML20043G156 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 06/11/1990 |
| From: | Frye J, Kline J, Shon F Atomic Safety and Licensing Board Panel |
| To: | CLEVELAND ELECTRIC ILLUMINATING CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC), OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| References | |
| CON-#290-10459 2.206, 90-605-02-OLA, GL-88-16, LBP-90-15, OLA, OLA-2, NUDOCS 9006190130 | |
| Download: ML20043G156 (15) | |
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$.9 LBP-9 0-15 00ggg0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-)0 JJN 12 A10:32 ATOMIC SAFETV AND LICENSING BOARD
, rr g er McRrTf.rv Before Administrative Judges b^'
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John H Frye, III, Chairman Dr. Jerry R. Kline Frederick J.-Shon SERVED JUN I 21990 In the Matter of Docket No. 5 0-4 4 0-OLA-2*
The Cleveland Electric Illuminating Company, et al ASLBP No. 90-605-02-OLA (Perry Nuclear Power Plant, Unit No. 1) l June 11, 1990 l'
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MEMORANDUM AND ORDER l
(Granting Petition to Intervene) l This proceeding results from a petition to intervene L
and request for a hearing filed on March 8, 1990, by Ohio Citizens for. Responsible Energy, Inc., (OCRE).1 OCRE 2
petitioned in response to a notice that NRC was considering the issuance of a license amendment to The Cleveland
'OCRE is a private, nonprofit corporation which specializes in research and advocacy on issues of nuclear reactor safety and promotes the application of the highest l
safety standards to such facilities.
It was an-intervenor in the Perry operating license proceeding.
In this proceeding, it seeks to intervene on behalf of its member and representative,' Susan L. Hiatt, who resides within 15 miles-of the Perry plant.
CEI and Staff do not question OCRE's representations in this regard.
2See 55 Fed. Reg. 4282, Feb.
7, 1990.
9006190130 9006 DR ADOCK 050 40 p
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. 1 Electric Illuminating Company (CEI).3 In addition to providing an opportunity to request a hearing, the notice stated that the NRC proposed to determine that the amendment involved no significant hazards considerations.
J The license amendment in question removes cycle-I specific core operating limits and other cycle-specific fuel information from the plant's Technical Specifications (TS) and replaces them with NRC-approved methodology for letermining these limits.
These limits provide the technical rules under which the reactor may be operated.
l The amendment application was prompted by Generic Letter 88-f i
16, which noted that the processing of changes to the cycle-i specific parameter limits generated using NRC-approved l
l methodology constitutes an unnecessary burden on both licensees and the Staff. 'The letter encourages licensees to l
propose changes to their Technical Specifications which are consistent with Staff guidance.
That guidance provides, in
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part, that:
This alternative consists of three separate actions to modify the. plant's TS:
(1) the addition of the definition of a named formal report that includes the values of cycle-specific parameter limits that have been established using an.NRC-approved methodology and consistent with all applicable limits of the safety analysis, (2) the addition of an administrative reporting requirement to submit the formal report on cycle-specific parameter limits to the Commission for 3CEI is lead applicant for itself and Duquesne Light Company, Ohio Edison Company, Pennsylvania Power Company, and the Toledo Edison Company, co-owners of the Perry Nuclear Power Plant.
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information, and (3) the modification of individual TS to note that cycle-specific parameters shall be maintained within the limits provided in the defined formal report.
In the evaluation of this alternative, the NRC staff concluded that it is essential to safety that the plant is operated within the bounds of cycle-specific parameter limits and that a requirement to maintain the
'7 plant within the appropriate bounds must be retained in the TS.
However, the specific values of these limits may be modified by licensees, without affecting nuclear safety, provided that these changes are determined using an NRC-approved methodology and consistent with all applicable limits of the plant safety analysis that are addressed in the Final Safety Analysis Report (FSAR).
Additionally, it was concluded that a formal report should be submitted to NRC with the values of these limits.
This will allow continued trending of this information, even though prior NRC approval of the changes to these limits would not be required.
L The current method of controlling reactor physics parameters to assure conformance to 10 CFR 50.36 is to l
specify the specific value(s) determined to be within specified acceptance criteria (usually the limits of the safety analyses) using an approved calculation methodology.
The alternative contained in.this guidance centrols the values of cycle-specific parameters and assures conformance to 10 CFR 50.36, which calls for specifying the lowest functional performance levels acceptable for continued safe operation, by specifying the calculation methodology and acceptance criteria.
This permits operation at any specific value determined by the licensee,.using_the specified methodology, to be within the acceptance criteria.
The Core Operating Limits Report will document the specific values of parameter limits resultingfromlicensee'scalculationsincludpngany mid-cycle revisions to such parameter values In its petition OCRE agreed with CEI and Staff that the l
amendment involves purely an administrative matter that raises no significant hazards considerations as the latter
' Enclosure to Generic Letter 88-16, p.1-2.
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- term is defined in 10 CFR S 50.92(c)..
It stated'that its intent is to raise a legal issue, 211.: that the grant of the amendment will deprive OCRE members of the legal means to participate in the consideration of significant changes to the plant's cycle-specific operations.
Both CEI and Staff attacked OCRE's standing.
CEI pointed out that OCRE concedes that the amendment is purely administrative and involves no significant hazard.
Thus, in CEI's view, OCRE has not alleged an injury in fact which would support intervention.
CEI views OCRE's alleged legal injury as remote and speculative because it amounts to no more than the possibility that OCRE might be precluded from raising an issue in the future.5 Following our direction to it, OCRE filed its contention and responded to CEI's and Staff's arguments.
OCRE's contention states:
5See CEI's March 23, 1990, answer to OCRE's petition, pp.
2-5.
In essence, Staff agrees with CEI's position.
It points out that no injury in fact was alleged and that, because OCRE merely raises the possibility that it may wish to litigate future matters, there is nothing to litigate in this proceeding.
See Staff's March 28, 1990, answer, pp.
5-7.-
On April 2, we issued a Memorandum and Order directing OCRE to file its contention and respond to CEI's and Staff's arguments on standing.
OCRE's response and contention were filed on April 23.
Following receipt of that contention, we directed CEI and Staff to respond to that contention and afforded OCRE an opportunity to reply to those responses.
CEI responded on May 9, stating only that in its view, OCRE's contention meets the requirements of 10 CFR S
- 2. 714 (b) (2 ).
Staff responded on May 18.
OCRE replied on June 1.
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The Licensee's proposed amendment to remove cycle-specific parameter limits and other cycle-specific fuel information from the plant Technical specifications to the Core Operating Limits Report violates Section 189a of the Atomic Energy Act (42 USC 2239a) in that it deprives members of the public of the right to notice and opportunity for hearing on any changes to the cycle-specific parameters and fuel information.
CORE notes that CEI concedes that this amendment will have the effect of eliminating most requests for amendments to change the cycle-specific parameters.
OCRE maintains that this results in a direct and palpable injury to its legal right to notice and opportunity for hearing on such L
requests, and that S 2.714 clearly contemplates that such a purely legal injury will support standing.
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l In support of its contention, OCRE argues that, because the amendment would permit the changing of core operating limits without public notice and an opportunity to request a hearing, the only effect of the amendment is to exclude the public-from the process of setting these limits.
OCRE maintains that this is contrary to S 189a of the Atomic Energy Act and a "... strong Congressional intent to provide for meaningful public participation."'
OCRE further maintains that the only opportunity for public participation which would remain if the amendment is granted, 10 CFR S 2.206, is not adequate.
OCRE believes that the amendment would permit CEI to operate in ways which it otherwise could~
not without seeking and receiving specific license
'See OCRE's April 23 Filing of Contention, p.
4.
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' amendments.
Thus OCRE argues that each time CEI does so, the Commission will be granting a de facto license amendment on which it must offer a hearing.
OCRE relies on Sho11v v.
EEg, 651 F.2d 780, 791 (D.C. Cir. 1980), vacated on other grounds, 435 U.S.
1194 (1983), and Commonwealth of Massachusetts v. NRC, 876 F.2d 1516, 1521 (1st Cir. 1989).
While CEI states only that OCRE's contention' meets the basis and specificity requirements of S 2.714 (b), Staff opposes the contention on the merits.
Staff points out that the Commission has determined that the TS of nuclear plants have become filled with unnecessary information and as a result, they are cumbersome and may constitute a hindrance to safe operation, citing the Commission's Interim Policy Statement on Technical Specification Improvements of February 3, 1987.7 Staff states thtt the removal of unnecessary information from the Technical Specifications must not operate to remove the essential requirements concerning operation.
Thus, in this case, the removal of the cycle-specific parameter limits will be accompanied by inclusion in the Technical Specifications of the requirement that the cycle-specific parameter limits are to be
' determined in accord with NRC approved methodology.
Staff believes that limits so determined will not affect the 7See 52 Fed. Reg. 3788, February 6, 1987.
safety of the unit, and that no reduction in safety margins will take place.
Staff points out that the Commission's requirements concerning what must be included in Technical Specifications are set forth in 10 CFR S 50.36.
Staff notes that Portland Ggngral Electric Comoany (Trojan Nuclear Plant), ALAB 531, 9 NRC 263, 271-74 (1979) discusses this issue and concludes that
... technical specifications are to be reserved for those matters as to which the imposition of rigid conditions or limitations upon reactor operations is-deemed necessary to obviate the oossibility of an l
abnormal situation or event civina rise to an immediate threat to the oublic health and safety, i
Id.
(Footnotes omitted, emphasis supplied.)
Staff believes 1
that removal of the cycle-specific parameter limits in the circumstar.ces contemplated here is in accord with the Appeal Board's conclusion in Troian.
Staff recognizes that OCRE is entitled to a hearing on 1
the question of whether this amendment should be granted.
However, Staff does not believe that OCRE's contention is admissible because in, Staff's view, it is related to some l
future contingency, not to the amendment in question.
For this reason, Staff views OCRE's reliance on the Sholly and Commonwealth of Massachusetts decisions, supra, as mis placed.
Those decisions involved Staff approvals of licensee applications which should have been opened to requests for hearing, but were not.
In contrast, Staff
e
. believes that OCRE only raises the possibility that such an event might occur in the future if this amendment is granted.
We agree with OCRE that injury to a purely legal interest will support standing.
Clearly, 10 CFR S 2.714 contemplates this result.
Subsection 2.714 (b) (2) requires that each contention state the natter of law or fact which it raises and subsection 2.714 (b) (2) (iii) requires sufficient information to demonstrate that a genuine dispute exists with respect to an issue of law or frat.
Subsection
- 2. 714 (e) provides that contentions raising purely legal issues must be decided on the basis of briefs and oral argument.
In promulgating the recent amendments to S 2.714, the Commission noted that purely legal contentions were admissible, but added subsection 2.714(e) to clarify how they should be handled.a Thus OCRE has standing to request a hearing based on its alleged legal injury.
The question remains whether OCRE's contention is admissible.
We agree with Staff's analysis of this issue up to a point.
Staff is correct that the Commission has been concerned with the detail contained in plant Technical Specifications and has sought to take action to alleviate that situation.
Generic Letter 88-16 is a part of that effort.
In that letter, Staff requested that licensees seek 8See 54 Fed. Reg. 331FJ, August 11, 1989; 1 NRC Rules and Regulations 2 SC 52, 2 SC 56.
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the sort of amendment which is at issue here.
We also agree with Staff that 10 CFR S 50.36 and the Troian decision control the content of Technical Specifications.
Staff does not believe that OCRE's contention is admissible because in, Staff's view, it is related to some future contingency, not to the amendment in question.
In its contention, OCRE maintains that the amendment will result in changes being made to cycle-specific parameter r
limits without the opportunity for a hearing as is presently the case.
CEI and Staff agree that this is so.
OCRE contends that this change would violate the provisions of S 189a of the Atomic Energy Act.
We believe that OCRE has stated a valid contention.
It may be that the amendment at issue would improperly deprive OCRE of hearing rights with respect to future changes in cycle-specific parameter limits.
The answer to that question depends on whether the changes which the amendment would make are in accord with 5 50.36 and the Troian decision.
As noted above, that decision interprets S 50.36 to require that
...those matters as to which the imposition of rigid conditions or limitations upon reactor operations is deemed necessary to obviate the nossibility of an abnormal situation or event alvina rise to an immediate threat to the oublic health and safety must be included in the Technical Specifications.
- Clearly, cycle-specific parameter limits are necessary to obviate the possibility of an event which could immediately threaten the l
t public health and safety, staff states that the amendment i
in question is not contrary to the Troian decision because i
it will not result in any reduction in safety margins.
However, in our view that is the issue raised by OCRE's contention.
Leaving it to CEI (or any other licensee) to determine cycle-specific parametor limits in accord with approved i
methodology but without prior Staff approval would only be proper, in our view, if the methodology by which they are determined does not allow for excessive discretion or judgement on the part of CEI.
We are unable to determine from the license amendment application or from Generic Letter 88-16 whether such discretion would be permitted.
If excessive discretion were permitted the licensee, the amendment could constitute an unlawful abdication of Commission responsibility to pass on the question of whether a licensee's activities meet the standards of the Atomic Energy Act and the concomitant responsibility to provide the public an opportunity to participate in that process.
The question here at issue, while ostensibly only a question of law, is not barren of subtle factual content.
The legal issue is whether the change will unlawfully deprive OCRE of participation in the setting of the safety-significant cycle-specific parameter limits.
But if the methodology specified for the calculation of those parameters and the specification of fuel design are such as l
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, j to rigidly determine the cycle-specific parameter limits without the use of engineering judgement, OCRE would lose no legal rights by the change.
(OCRE's greatest loss would be i
the dubious privilege of checking CEI's arithmetic.) On the other hand, if, as a matter of fact, substantial engineering l
judgement is needed to derive the parameters from the bases to be included in the new tech specs, the change would indeed deprive OCRE of its legal right to participate in the setting of safety-significant parameters.
Thus we see wrapped within the outer layer of the legal question a more recondite question of fact: To what extent does the material to be included within the new technical specifications inexorably specify the cycle-specific parameter limits which would be removed?
If some engineering judgement is permitted, is it permissible under the Atomic Energy Act for CEI to exercise it?
We believe that these issues would benefit from expert testimony.
Because we believe that OCRE has stated a valid contention, it is unnecessary for us to address the argument that 10 CFR S 2.206 provides OCRE an appropriate means to participate in the setting of cycle-specific parameter limits.
OCRE has challenged the legality of the amendment under 5 189a of the Atomic Energy Act.
If OCRE is successful in that challenge, there will be no need for it to consider using S 2.206.
On the other hand, if it is not
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. successful, S 2.206 would appear to be OCRE's only means of participating.
Our reasoning in reaching our tentative conclusion that OCRE has stated a valid contention has extended beyond the arguments advanced by OCRE, CEI, and Staff.
Consequently, we are deferring a final ruling admitting OCRE and setting a schedule for resolution of its contention in order to permit CEI and Staff to move for reconsideration.
CEI and Staff may seek reconsideration of this Memorandum and Order within ten and fifteen days of its service, respectively.
It is so ORDERED.
Atomic Safety and Licensing Board l
Fred ic
.'Shon ADMIN VE JUDGE i
. i M% /\\
19 i
Q.JerrfR. Kline l
ADMINISTRATIVE JUDGE Jo nH
- .*ye, III, Chairman A
NI 1ATIVE JUDGE Bethesda, Maryland June 11, 1989 l
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l UN19ED STATES OF AGERICA NUCLEAR REGULATORY COMMIS$10N In the Matter of 1
THE CLEVELAND ELECTRIC ILLUMINATING i
Docket No.(s) 50-4a0-OLA C O MP At4 Y, ET AL.
derry Nuclear Power Plant. Unit 1) l t
1 CER11FICATE OF SERVICE I hereby certify that coctes of the forecoing LB ML0 (GRANTING...) LBP 90-15 have been served ucen the 4ollowino persons by U.S. mail, first class, except as otherwise noted and in accordance with the recutrements of to CFR Sec. 2.712.
Atomic Safety and Licensino Acceal Administrative Ju:ce Boarc Gustave H.
Linentercer, Jr.
U.S. Nuclear Reculatorv Comt.nssion Atomic Safety anc Licentino board Washington, DC 20:55 U.S. Nuclear Regulatory Commissten Washincton, DC 20555 Administrative Juone Administrative Jucce John H.
Frye, Ill, Chairman Jerry R. kline Atomic Safety and Licensina Boara Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commissten U.S. Nuclear Reculatory Commission Washinoton, DC 20555 dashington, DC 205 5 Administrative Judoe Colleen P. Woodhead. Eso.
Frederick J. Shen Office of the General Counsel Atomic Safety and Licenstnc Board U.S. Nuclear Regulatcry Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Colleen Woodhead Escutre Jay E. Silberg, Eso.
Office of the General Counsel Shaw, Fittman, Potts & Trowbridge U.S. Nuclear Regulatory Commission 2300 N Street, N.W.
Washington, DC 20555 Washington, DC 20037 Susan L. Hiatt Shaw, Pittman, Potts & Trowbridge Ohio Citirens for Rosconstble Energy 2300 N Street, N.W.
9275 Munson Roao Washington, DC 20037 Mentor, OH 44060 l
4 Docket No.Is150-440-OLA LB 4 0 (GRANTING...) LBP 90-15 Dated at Rockville, Md. this 12 eay af June iH0 jfjA< g,,,,,,,,,,,,,,
, A Offic~efoi the Secretary of the Coneission t
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l UNITED $1ATES OF AMERICA j;
NUCLEAR REGULATORY COMMISSION In the Matter-of I
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THE CLEVELAND ELECTRIC ILLUMINATik6 1
Docket No.(s) 50-440-OLA-2 COF.PANY. ET AL.
f (Ferry Nuclear Power Plant, Unit i) l i
i CERTIFICATE OF SERVICE 7
I hereby certify that copies of the foregoing LB M60 (GRANTINS....LBP-90-15
[
have been served upon the f ollowinc persons by U.S. sell, fi'rst class, except as otherwise noted and in accordance with the recuirements of 10 CFR Sec. 2.712.
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v Atouc Saf ety and Licensino Aeoeal Administrative Judge Ecard John H.
Frye. !!!, Chatrman J.S. Nuclear Reculatory Comntssion Atomic Safety ano Licensino Board Washinoton. DC 20555 U.S. Nuclear Regulatory Commis+.ich Washington, DC 20555' Administrative Judoe Administrative Judge Jerry R. Kline Frederick J. Shen 4
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Reculatory Cometssion Washington, DC 20555 Washington, DC 20555 Celleen Wooohead, Escutre Jay E. 511bero l
Office of the General Counsel shaw, Pittman,.Fotts.4 Trowbridge U.S. Nuclear Reculatory Commission 2300 N Street.
N.W.
aethington, SC 20055 Washington. DC 20037 Susan Hiatt Ohio Citizens for Responsible Energy 5275 Munson Road Mentor, OH 44060 Dated at Rockville, Md. this 13 day of June 1996 O.N
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Offieb of the Secretary of the Cometssion A