ML20043H127
| ML20043H127 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 06/15/1990 |
| From: | Anderson G, Bloch P, Johnson E Atomic Safety and Licensing Board Panel |
| To: | FLORIDA POWER & LIGHT CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC), NUCLEAR ENERGY ACCOUNTABILITY PROJECT |
| References | |
| CON-#290-10485 90-602-01-OLA-5, 90-602-1-OLA-5, LBP-90-16, OLA-5, NUDOCS 9006220040 | |
| Download: ML20043H127 (53) | |
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LBP-YW E6 June 15, 1990 UNITED STATES OF AMERICA
% JUN 15 P3 :28 NUCLEAR REGULATORY COMMISSION Grr!CE OF SECRETARY
-ATOMIC SAFETY AND LICENSING BOARD DOCKETma A w<vlCf.
PHANC6!
Before Administrative Judges:
Peter B. Bloch, Chair h JtJN 15 W Dr. George C. Anderson Elizabeth B. Johnson e
In the Matter of Docket Nos. 50-250-OLA-5 50-251-OLA-5 FLORIDA POWER AND LIGHT COMPANY Technical Specifications-(
Turkey Point Plant Replacement.
(Unit Nos. 3 and 4)
Facility Operating ASLBP No. 90-602-01-OLA-5 Licenses Nos. DPR-31, DPR-41 MEMORANDUM AND ORDER (Prehearing Conference Order: Parties and Contentions)
MEMORANDUM The purpose of this proceeding is to determine whether or not Florida Power and Light Co. (Applicant) may amend the technical specifications for its plant pursuant to "the NRC and industry initiative to standardize and improve techni-cal specifications for nuclear plants.
Egg 54 Fed. Reg. at l.
50295 (December 5, 1989]."
Applicant's purpose in seeking to change its technical specifications is to benefit from p
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industry experience with technical specifications and to facilitate a " uniform understanding of requirements."1 l
I" Applicant's Response to Amended Petition to Inter-vene" (Applicant's Response), March 16, 1990, at 5.
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However, a petition has been filed that asserts that the change in technical specifications is unsafe.
During the litigation of this case, the Staff may decide to permit the proposed change in technical specifica-tions after comments have been received and considered on the proposed determination of the Staff of the Nuclear Regulatory Commission (Staff) that "the amendment request involves no significant hazards considerations."
55 Fed.
Reg. 20218 at 20227-28 (May 15, 1990).
On Friday, March 23, 1990, we held a prehearing con-ference in this case in Miami for the purpose of deter-mining whether either of the petitioners -- Mr. Thomas J.
Saporito and the Nuclear Energy Accountability Project (NEAP) -- should be admitted as a party.
A purpose of this memorandum is to determine whether party status should be granted.
To reach that determination, we must decide wheth-er or not a petitioner: (1) has standing, and (2) has sub-mitted at least one admissible contention.
Both prongs of this test must be met for a Petitioner to be granted party status.
l With respect to the standing issue, the Board ruled at 1
I the prehearing conference that it would accept the position of Applicant and the Staff that Mr. Saporito had standing 2 2Mr. Saporito works over 40 hours4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> a week as a teacher at the ATI Career Training Center, 1 N.E.
19th Street, Miami, Florida 33132, and this is well within the 50 mile l
geographical zone of interest.
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' and that, based on his standing, NEAP -- which Mr. Saporito serves as a director -- also would have standing.
The vali-dity of this ruling was, however, placed under fresh doubt when Mr. Saporito filed a " Notice of Withdrawal from Pro-ceeding" on April 1, 1990.
In that petition, he allegedL that Applicant had intimidated and harassed him; and he, therefore, asked to withdraw both as an individual party and as the basis on which NEAP might be said to have standing.
On April 24, 1990, we established a schedule for resolving this motion through the issuance of an unpublished memoran-i dum and order concerning the Motion to Withdraw.
The first part of this Memorandum will address the merits of the Motion to Withdraw and the standing issue.
The second part of this Memorandum will address the question of whether any contentions are admissible.
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I.
Motion to Withdraw and Standing In our April 24 memorandum, we discussed in detail Mr.
Saporito's charge of intimidation and we invited him to i
resolve that charge, which he has not done.
Our discussion, which now contains our reasons for denying Mr. Saporito's motion to withdraw as the person on whom NEAP relies for standing, follows:
II Unproven Allegations and Ambiguities A
Unproven Allegations Mr. Saporito stated in his motion that he was withdrawing both as an individual Petitioner and as a person on whom NEAP relies for standing because
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-4 he felt intimidated by actions-of the Applicant.
However, he has not persuaded the Board that there is any.vali timidation.preasonforhisseriouschargeofin-(Footnote in original.]
An allegedly intimidating event of which we have been informed is a letter of March 7,
- 1990, sent by Mr. John T.
Butler, counsel for Applicant, to Mr. Saporito's employer.
We have examined that letter and have concluded that it was a simple factual inquiry for the purpose of confirming facts 1
concerning Mr. Saporito's employment.
There is-nothing in the letter that we consider to:be in-timidating. -Indeed, all the letter may have done
.I with respect to Mr. Saporito's employment relation-ship is to bring to the employer's attention, in a neutral manner, a fact that is common knowledge and
'that Mr. Saporito reasonably must have expected his employer to learn during the course of this litiga-tion: that Mr. Saporito is involved in a case affecting Florida Power and Light, a customer of Mr. Saporito's employer.
In addition to the March 7 letter, Mr. Sapor-
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ito's employer also received a copy of a letter sent by Mr. Butler to Mr. Saporito on March 19.
In that letter, Mr. Butler assured Mr. Saporito that "neither Florida Power & Light Company nor I had-any hostile or coercive motives in making the in-quiry (of March 7)."
Since the contents of Mr.
Butler's letter was not directly relevant to any interest of Mr. Saporito's employer, there does not appear to be any strong reason for him to have sent a copy of the letter to the employer and -- in light of Mr. Saporito's earlier complaint -- Mr.
Butler might easily have anticipated that Mr. Sap-orito could have felt coerced by this procedure.
Mr. Butler could have avoided the appearance of coercion by not copying the employer.
However, he may also have felt that the letter would reassure the employer about there being no coercive intent and we find that the routine copying of that letter 3We do not find that "Intervenor's Answer tc A#
plicant's April 13, 1990 Response
, April 20, 1990, is a permissible filing because it is a reply to Applicant's I
answer and is not provided for under the rules.
Further-more, we do not find any good cause for permitting Petition-er to reply because it has.not demonstrated that there was anything in the answer that could be considered a surprise.
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...c does not, by itself,-demonstrate coercion to this Board.
After Mr. Saporito complained in a filing of March 9, 1990, that the March 7 letter was in-timidating, we had an internal Board discussion about the allegation, but we did not communicate to anyone our conclusion that no intimidation had been demonstrated to us and that there was, therefore, no need for us to ?ct on Mr. Saporito's filing, which did not request any specific action on our part.
At the Prehearing Conference that we held in Miami on March 23, 1990, Mr. Saporito apparently also was in possession of a copy of the March 19-letter.
Yet, Mr. Saporito did not raise the ques-tion of coercion at that time, and we did not rule on it.
Subsequently, we have learned from Applicant' (footnote in original) that Mr. Saporito filed a complaint with the Department of Labor concerning the March 7 letter; and that his complaint has been dismissed.
It is important to the Licensing Board to get to the bottom of this matter.
It is not acceptable for one party to coerce another in a proceeding of this importance.
Lt also is not accentable for a carty to accuse another of coercion on our record without succortino facts.
(Emphasis supplied.)
We also admit to being puzzled by charges of intimidation in this matter, for Mr. Saporito's H
fear of intimidation does not keep him from: (1) continuing to make public accusations against Ap-plicant, (2) filing charges before the Department of Labor against Applicant, or (3) continuing to represent NEAP -- though, apparently, in some "non-personal" manner that causes him to want not to be the source of standing for NEAP.
On May 5, 1990, Mr. Thomas J.
Saporito, Jr.,
filed
" NEAP's Response to the ALSB's Memorandum and Order."
In
' Applicant's Response to Notice of Withdrawal from Proceeding, April 13, 1990 (Response), at 3.
According to Applicant, Mr. Saporito made a complaint with the Department of Labor under the "Whistleblowing" Statute, Section 210 of the Energy Reorganization Act (42 USC S 5851), based on the March 7 letter; his complaint was dismissed by a letter of April 2, 1990, from Jorge Rivero, Assistant Director, Em-ployment Standards Administration, Wage and Hour Division, U.S.
Department of Labor.
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that filing, Mr. Saporito-had an opportunity to address the Board's serious concern that one party should not accuse another of-coercion without supporting facts.
He did not i
address that concern.5 He also did not address the follow-ing question asked by the Board:
If he (Mr. Saporito) is a member (of NEAP), then I
why_is he not willing-to authorize.himself -- ac-ting for NEAP -- to represent himself?
Based on this failure to supply information, we conclude that Mr. Saporito was not subject to any coercion and we 3" Applicant's Reply to NEAP's Response to the ASLB's Memorandum and Order" was filed May 17, 1990 and the "NRC Staff's Reply to NEAP's Response to Licensing Board's Memor-andum and Order of April 24, 1990" was filed May 24, 1990.
Both parties' chose to ignore Petitioner's charge of in-timidation and did not address whether or not we should grant all or part of Mr. Saporito's motion to withdraw.
This is, of course, not surprising; Mr. Saporito's withdraw-al is essential to Applicant's and Staff's argument chal-lenging NEAP's standing based on another ~" member" who claims to be a basis for standing.
However, we are permitted -- in the interest of justice and to prevent manipulation of this Board -- to address an apparent attempt.by a party to raise a procedural issue frivolously, whether or not another party would have us do so.
We note that (were Mr. Saporito's motion granted) we are inclined to deny standing based on the alleged standing i
of Shirley Brezenoff -- whom we find: (1) has no control, either formal or through her membership activities (which she'did not discuss in her affidavit despite our invitation to do so) over NEAP, and (2) became a member "For Quad' City Citizens for Nuclear Arms Control" and not for herself.
(Hgg'her certificate of membership.)
Therefore, she lacks the indicia of membership requisite to provide a basis for j
l NEAP's standing.
Health Research GrouD v. Kennedy, 82 L
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h+-Wgp e
e ma., y
order that all material alleging coercion shall be con-sidered to be struck from our record.
We also caution Mr.
Saporito not to make defamatory charges in this proceeding unless he is prepared to prove them.
Further unsubstan-tlated attacks could constitute grounds for barring him from participation.
In light of our finding that Mr. Saporito was not co-erced and in light of his failure to explain why he is not willing to authorize himself to represent himself, we con-sider his motion to withdraw himself as the basis for NEAP's standing to be frivolous and we deny that motion -- whose effect would be to place in controversy a procedural issue concerning whether another person could be the basis for NEAP's standing.6 (Were Mr. Saporito a lawyer, fully in-formed of the possible consequences of his motion to with-draw, we might grant his motion and rule that NEAP is no longer a party.
However, given Mr. Saporito's lay status, our denial of his motion will give him a chance to consider the full consequences of his request.)
However, Mr. Saporito's motion to withdraw as an in-dividual is granted because it does not create any new
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'At the beginning of the prehearing conference, Mr.
Saporito revealed his strong feelings that his own standing was not necessary for NEAP's standing. Tr.
- f. - 6.
At that time, he acknowledged that the issue was moot.
Tr.
6.
However, he has since taken steps calculated to raise the issue that we all considered moot.
The Board is not pleased by this apparently contrived attempt to cause us to consider an issue that all agreed was moot.
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I ipsues for us to decide.
We caution Mr. Saporito not to engage in procedural maneuvers whose principal purpose ap-pears to be the creation of new issues for decision in this Case.
If Mr. Saporito continues to withdraw himself as the basis for NEAP's standing, he may do so.
However, he is the sole basis on which NEAP relies and NEAP has already had all the opportunity it needs to establish standing; it may not file any further documents alleging a new basis for stand-ing.
Hence, if Mr. Saporito fails to assure us of his willingness to have NEAP represent him (by complying with paragraph 2 of our order, below) the entire basis for stand-ing for NEAP fails and this case will be dismissed.
II.
Contentions A.
Legal Setting This case represents one of the first in which the Commission's recently amended contentions requirement is l
l applicable.
Consequently, it is appropriate to set forth the full contentions requirement as it appears in 10 CFR S 1
- 2. 714 (b) (2) :
Each contention must consist of a specific state-ment of the issue of law or fact to be raised or controverted.
In addition, the petitioner shall provide the following information with respect to each contention:
(i)
A brief explanation of the bases of the contention.
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(ii)
A concise statement of the alleged 1
fact or expert opinion on which the peti-tiener intends to rely in proving the i
contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or ex-pert opinion.
(iii) Sufficient information (which may include information pursuant to para-graphs (b) (2) (1) and (ii) of this sec-tion) to show that a genuine dispute exists with the applicant on a material issue of law or fact.
This showing must include references to the specific por-tions of the application (including the applicant's environmental report and safety report) that the petitioner dis-putes and the supporting reasons for each dispute, or, if the cetitioner believes that the acclication fails to contain information on a relevant matter as re-cuired by law, the identification of each failure and the succortino reasons for the cetitioner's belief.
On issues aris-ing out of the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report.
The petitioner can amend those contentions or file new con-tentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assess-ment, or any supplements relating there-to, that differ significantly from the data or conclusions in the applicant's document.
(Emphasis supplied.)
B.
General Description of Contentions Although Petitioner submitted lengthy contentions that purported to comply with the contention requirements now in effect, on examination we find that they consist primarily of allegations -- based on Applicant's own admissions --
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. that Applicant has in some instances relaxed requirements in the course of amending its technical specifications.
Gener-ally, Petitioner failed to tdvance an independent basis for any of its contentions.
Instead, Petitioner relied entirely on alleged omissions in Applicant's analyses and said it intended to support its proposed contentions by Mr. Sapor-ito's expert opinion, by interrogation of Applicant's wit-nesses, and by discovery, without any indication of the analytical basis for further inquiry.
These allegations of omission were always based on assertion, without any specif-ic source of evidence concerning the importance of the al-leged omission.
The question this presented to us was: could an allega-tion, based solely on an admission of Applicant, that some of its technical specifications are being " relaxed" -- while others are being made more rigorous -, form the basis of a contention which should be admitted under the newly ap-plicable rules?
We have concluded that there is no simple answer to this question but that we must look further and examine Applicant's explanations for why a particular relax-ation is not hazardous.
If Applicant provides a clear ex-planation that is not directly challenged by Petitioner --
through evidence or citations to sources or reasoning --
then Applicant's admission of a " relaxation" is not by it-t self sufficient to admit a contention.
If, however, Ap-plicant's " analysis" is merely conclusional and therefore
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' fails to provide any assurance that its " relaxation" is safe, then we accept Petitioner's reliance on Applicant's admission as sufficient grounds for the admission of a con-tention.
Applying this standard, Petitioner NEAP has presented contentions that are properly admitted.
Since NEAP provis-ionally has standing,7 based on Mr. Saporito's membership, NEAP may be a party and may be referred to as "Intervenor."
" Petitioners Amended Petition for Intervention and Brief in Support Thereof (Amended Petition)," March 5,
- 1990, contains 56 proposed contentions.
The first two contentions are environmental and shall be reserved for later discus-sion.
The twenty-fifth contention relates to facts that are not related to the change in technical specificaticns, as we shall discuss below.
The other contentions (3-24 and 26-
- 56) follow a uniform format that we shall proceed to ana-lyze, for the purpose of communicating accurately the issue with which we were faced.s In Table 1 we set forth Petitioner's third contention verbatim.
We have added to the contention our titles, which we insert in all capital letters, for the purpose of in-dicating the apparent purpose of each section of the conten-7See Ordering Paragraph 2, infra.
"We consider it our obligation to set forth our reason-ing fully both because this facilitates review of our deter-mination and the use of our decision by future parties who wish to be guided by prior cases.
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' tion.
Then, in the right margin, we have inserted our com-ments on the individual sections of the contention.
We note that Contention 3 relates to a change in word-ing of the technical specifications and is in this respect different from some of the other contentions.'
- However, the basic approach is the same for all contentions.
In the succeeding portion of this memorandum, we will analyze each section of the transcript of the prehearing conference and the related documents to determine whether the criteria for admission of contentions are met.
In those analyses, we discuss the rationale advanced by Applicant for determining that each " relaxation" does not have significant safety consequences.
Because three of the Applicant's ex-planations with respect to safety contentions are unsatis-factory, we admit three safety contentions and two environ-mental contentions.
'All the participants agreed with the Board that the proper place to evaluate the effect of the omission of defi-nitions is with respect to those substantive sections in which the omission of a definition changes the required action.
Tr. 22-32.
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$ TABLE 1 UNIFORM FORMAT FOR CONTENTIONS NOTE:
Petitioner's heading for the contention we analyze ist Contention 3: Statement of the issue of law or fact to be raised or controverted.
Descriptive Title (Provided by Board)
Board Comments and Text of Contention 3 PURPOSE STATEMENT (a)
The license amendments This statement is requested by the Applicant to the true.
However, it Turkey Point operating licenses DPR-31 does not provide and DPR-41 for Turkey Point Units 3 the basis for a and 4 respectively, would authorize contention.
replacement of the current plant Custom Technical Specifications (CTS),
with a set of technical specifications based on the Westinghouse Standard Technical Specifications (STS).
FEAR OF CONSEQUENCES (b)
The license amendments sought This statement by the Applicant, to revise the Turkey contains general Point (CTS) with the Westinghouse (STS) fears that are will cause the plant to be operated not grounded on uneafely because of the relaxed safety any technical marains contained in the Westinghouse concerns about (STS), resulting in a release of radia-the proposed tion and fission products into the en-changes in tech-vironment which will enter the food nical specifica-chain causing loss of life, due to can-tions.
cer and other related illnesses, to the general public and radioactively conta-minate hundreds of miles of land and privately owned property and homes, solely dependent on the prevailing air currents.
[ Emphasis added.)
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e TABLE 1 UNIFORM FORMAT FOR CONTENTIONS (Continued)
DESCRIPTION OF CHANGES (c)
Specifically, the amendments Statement of a would change the CTS at specification change from the 1.0 and Table 4.1-1 omitting the follow-CTS to the STS.
ing Technical Specification definitions:
No statement of
- 1. SAFETY LIMITS, 2. LIMITING SAFETY the basis for a s
SYSTEM SETTINGS, 3. LIMITING CONDITIONS contention.
Note:
FOR OPERATION,
- 4. PROTECTIVE INSTRUMEN-this is the only H TATION LOGIC,
- 5. DESIGN POWER,
- 6. REAC-part of the uni-
<X TOR COOLANT PUMPS, 7.
ENGINEERED SAFETY fo"L format that
- FEATURES,
- 8. REACTOR PROTECTION SYSTEM, changes from con-
- 9. SAFETY RELATED SYSTEMS AND COMPO-tention to con-NENTS, 10. PER ANNUM, 11. REACTOR COOL-tention.
Often ANT SYSTEM PRESSURE BOUNDARY INTEGRITY, this part alleges
- 12. COOLANT LOOPS, 13. HEAVY LOADS.
a " relaxation."
Note: the next portion of the discussion of Contention 3 is preceded by the following title: Concise statement of the alleaed facts or exDert oDinion on which the Petitioner intends to rely in Drovina the contention at the hearina.
SERIOUSNESS OF NUCLEAR ACCIDENT (a) Petitioners would state here Petitioners state that the alleged facts supporting Con-their fears.
They tantion 3 are that any release of ra-do not state how diation and fission products from a nu-Applicant's STS clear power plant adversely affect will contribute to human life and the environment as a those fears.
In whole and that the relaxed safety mar-other words, "the gins evidenced in the Applicant's (RTS) means and method" provide the means and method for such are not specified.
a release of radiation and fission Petitioners cite products into the environment.
Applicant's word:
" relaxed."
NAME OF WITNESS" (b) Petitioners will rely on the Petitioners name a expert opinion of Thomas J.
- Saporito, witness without Jr., Executive Director of the Nuclear providing any idea Energy Accountability Project (NEAP),
about what he may
- in support of Contention 3.
See Affi-
- say, davit of Thomas J.
SaDorito, Jr.
"The same witness, Thomas J.
Saporito, Jr.,
is speci-fled for all the contentions.
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' TABLE 1 UNIFORM FORMAT FOR CONTENTIONS (Continued)
CROSS-EXAMINATION (c) Petitioners will rely on Petitioners fail cross-examination of Applicant's to state any witnesses to support contention 3.
analytical basis for cross-examin-ation.
GENERAL REFERENCES References to those specific docu-ments on which the Petitioner intends to rely to establish those facts or expert opinion:
(1)
There are no (2) Applicant's Safety Evaluation for specific No Significant Hazards Consideration, citations.
(3) Applicent's Undated Final Safety Analysis Reports, (4) Federal Regis-ter Volumes 48, No. 67 at 14870, (5)
Other documents which Petitioners may find through further research or which Petitioners may obtain through discovery in these proceedings.
r III.
Discussion of Specific Contentions A.
Withdrawn Contentions The following contentions were withdrawn by the Peti-tiener at the prehearing conference and are no longer at issue all portions of Contention 3 other than e
those related to the definitions of
" safety limits" and limiting safety sys-tem settings.
(Tr. 22, 29 (Staff state-ment, uncontradicted by Petitioner).)
the portion of Contention 3 relating to e
the omission of the definitions of
" safety limits" and limiting safety sys-tem settings (Tr. 27+49, 30, 31-32), with the understanding that these omissions may be considered with respect to par-ticular portions of the technical speci-fications where it is alleged that the change has an effect.
Contention 10 (Tr. 102).
All of Contention 12 but that part that deals with the frequency of RCS boron concentration surveillance.
e Contention 13 (Tr. 130-31).
Contention 14 except for the portions stating: (1) that the boric acid pump need only be available when its asso-ciated flow path is required to be oper-able, and (2) permitting hot standby for 108 hours0.00125 days <br />0.03 hours <br />1.785714e-4 weeks <br />4.1094e-5 months <br /> after loss of operability of a charging pump. (Tr. 131-143.)
Contentions 15, 17, 19, 20, 22, 23, 24, e
26, 27 28, 29, 31, 32, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48,
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49, 50, 52, Sg,54, 55, 56 (Tr. 144, 150, 154, 158, 163 168, 175, 181).
B.
Contention 4 Petitioner's proposed Contention 4 statest Specifically, the amendments would change the CTS at specification 1.0 and Table 4.1-1.
Surveillance tables pages 3-8 to 3-10 of the RTS utilize fre-quency codes which are defined in Table 1.1 in section 1 at page 1.7 of the RTS.
Therefore, plant operators will experience increased and greater difficulty using the surveil-lance tables at pages 3-8 to 3-10 of the RTS since the operators will have to refer back to the fre-quency code table in Section 1, at page 1.7.
This change incorporated in the RTS as com-1 pared to the CTS which provides a frequency code table with the surveillance Table 4.1-1 increases the probability of operator error which could result in missed surveillances and unsafe plant operation.
This contention relates to an editorial change in the current technical specifications.
In the current technical specifications, the definition for certain frequency codes used in Table 4.1-1 was contained at the end of that table.
In the revised technical specifications, these codes are de-fined in Section 1, Table 1.1 -- which provides more spe-cific definitions than do the current technical specifica-tions.
That is, definitions have been transferred from footnote status to an earlier section of the Technical Spe-cifications, where they are more fully defined.
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"Although Petitioner spoke of Contention 31, be ad-i dressed the substance of Contention 33 and purposely skipped over Contention 31 and 32.
See Tr. 165.
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' Petitioner did not offer any facts and cited no expert sources on this subject and presented no reasoned statement of why this was unacceptable (see Tr. 33-41, 43 (discussion of Judge Bloch and Mr. Frantz), Tr. 44 (Frantz for Ap-plicant: operators are fully trained); compare Tr. 44-45);
hence, the admission of this contention is denied.
There is no genuine issue of fact raised pursuant to 10 CFR S 2.714 (b) (2) (li) and (iii)."
C.
Contention 5 Contention 5 states, without further specification, that "RTS, Table 4.3-1, section 3/4 at page 3-8 relaxes certain surveillance requirements (without specifying which requirements).
At the prehearing conf (ronce, Peti-tiener clarified that he is concerned that: (1) the power range neutron flux detectors may be excluded from channel calibration both for the high set point and the low set point (Tr. 46-49); (2) the test frequency for over-tempera-ture Delta T is decreased from biweekly to every thirty-one days-(Tr. 49); (3) the test frequency for over-power Delta T is decreased from biweekly to every thirty-one days (Tr.
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"Our memorandum defines the failure to demonstrate a i
genuine issue of fact as a failure to provide any factual evidence or supporting documents that produce some doubt about the adequacy of a specified portion of Applicant's documents or that provides supporting reasons that tend to show that there is some specified omission from Applicant's documents.
See 10 CFR S 2.714 (b) (2) (ii) and (iii).
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, 49); and (4) there is no test for "under voltage 4.16 kilo volts" (Tr. 49).
Petitioner also provides the following statement of reasons:
I'd also like to point out that over-temperature Delta T and over-power Delta T and under-voltage 4.16 KV have beer analyzed in the current techni-cal specifications safety analysis of the plant, so to change these trequency surveillances is defi-nitely going to affect the health and safety of the public because it's going to provide a means and a method to release fission products to the environ-ment.
(Tr. 52.)
These concerns are addressed in the No Significant Hazards Evaluation at App. A 3/4 3-1, which discusses the changes in test frequency in detail.
In particular, it relies on a Westinghouse owner's Group study, WCAP-10271 series.
In light of this reference, we find that Petitioner has not show us how Applicant's analyses are in error or that they have made a sit.tnificant omission.
Consequently, the contention is not admitted.
D.
Contention 6 Proposed contention 6 states:
Specifically, the amen atspecification1.17.gmentswouldchangetheCTS In the RTS the definition of OPERABILITY requires " electrical power" for system operability, and the A-C power source re-quirements are defined by the A-C sources Technical Specification.
Where one of the A-C sources is inoperable and a component in the opposite train of a redundant system is inoperable, the CTS require that both of the redundant trains be declared inoperable.
The UThis appears to be a citation to the RTS.
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. RTS permit the ACTION restrictions of the A-C source to govern.
1 The CTS would typically require MODE reduction within 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> pursuant to T.S.
3.0.1.
The RTS requires MODE reduction within 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br /> when one Diesel Generator and an opposite train component are inoperable.
This relaxation of the safety margins dis-cussed above is unacceptable because it provides for an increase in the time permitted for MODE reduction from 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> to 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br />.
Additionally, this relaxation of the safety margins would provide for one train of a two train safety system being inoperable at the same time that one of the two A-C sources powering the opposite train components is inoperable.
Contention 6 deals with a " relaxation" in technical specifications pursuant to an NRC letter dated April 10, 1980, to all power reactor licensees from the Division of Operating Reactors.
The purpose of the letter was to clar-ify "the use of the term OPERABLE as it applies to the single failure criterion for safety systems."
The letter states that:
By and large, the single failure criterion is preserved by specifying Limiting Conditions for Operation (LCOs) that require all redundant com-ponents of safety related systems to be OPERABLE.
When the required redundancy is not maintained, either due to equipment failure or maintenance outage, action is required, within a specified time, to change the operating mode of the plant and to place it in a safe condition.
The specified time to take action, usually called the equipment out-of-service time, is a temporary relaxation of the single failure critorion, which. consistent with overall system reliability considerations, provides a limited time to fix equipment or other-wise make it OPERABLE.
If equipment can be re-turned to OPERABLE status within the specified time, plant shutdown is not required. (Letter at 1.)
l l
, The gist of the letter is that there must be full re-dundancy of systems.
However, one system may lose a source of power (either on-site or off-site but not both)" crovid-ing "all of its redundant systems, subsystems, trains, com-ponents and devices are OPERABLE, or likewise satisfy the requirements of this specification."
(Enclosure 1 at 3.0.5.)
The Revised Technical Specification has adopted this Staff suggestion.
It obviously does represent a " relax-ation," as Applicant admits: previously two sources of power had to be available for a safety-related system or the system had to be declared inoperable and any conditions are specified where a system with only one power source can be operated temporarily.
However, Petitioner does not provide any technical opinion or reasons to believe that the change 1s unsafe; in particular, it is not shown to be in violation of the single failure criterion."
(Tr. 55-63, 65.)
- Hence, "At the preliminary hearing, Judge Bloch asked a ques-tion that showed that he did not properly understand the nature of this change in technical specifications.
He believed that this specification permitted one of two alter-nate sources of off-site power to be unavailable but that this change had nothing to do with emergency on-site power.
This apparently incorrect view was, however, corroborated by counsel for Applicant.
Tr. 56-63.
"The explanation of the basis for the Staff letter is not wholely satisfying to the Board.
There is no discus-sion, for example, of what new risks occur for reactors be-cause of this change nor of what analyses have been done to provide assurance that it is appropriate to permit such new risks to occur during the limited out-of-service time.
Nor (continued...)
n.,
s
. Petitioner has not given us a reason to determine that there is a genuine issue of fact with respect to this contention and it shall not be admitted.
We note that this change in Technical Specifications also increases the time allowed for mode reduction (while operating in modes 1 through 4) from seven to 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br />.
No Significant Hazards Evaluation at App. A 1-5.
(Compare Revised Technical Specifications at 3/4 0-1, S 3.0.3, which appears to differ from the No Significant Hazards Evalua-tion.)
This time allowance exceeds the Model Technical Specifications attached to the April 10, 1980, Staff letter on which Applicant relies for its technical specification
"(... continued) is this matter cleared up by Applicant's No Significant Ha-zard Evaluation at 1.17.
It is not clear why Applicant has concluded that these risks are acceptable.
If they have not already done so, we urge Applicant and Staff to pay detailed attention to possible risks.
(See Tr. 116. (Staff counsel agrees with the Board that Applicant should have thought through what pequences they are inviting through the relaxa-tion of requirements.))
However, we still conclude that Petitioner failed to state an admissable contention.
Though the request for an amendment does not appear to be as well-analyzed as we would like, Petitioner failed to address the Staff's technical letter at all and failed to state a reasoned, documented basis for believing that this change was unsafe.
Thus it did not meet the genuine issue requirement of 10 CFR S 2.714 (b) (2) (ii) and (iii).
We note that 10 CFR S 50.63 states that operators must demonstrate that their alternate AC power sources "will con-stitute acceptable capability to withstand station black-out", presumably under adverse operating conditions such as might occur during the limited out-of-service time.
How-ever, Applicant is not yet required to comply with this regulation, which goes into effect according to a schedule filed by Applicant.
10 CFR S 50. 63 (c) (4) ; Tr. 206.
, change.
Section 3.0.3 of the Model Technical Specifications requires that the unit be placed iu at least HOT STANDBY within one hour and at least HOT SHUTDOWN in the next six hours.
Had the Petitioner cited this source, we would have required Applicant to respond.
None of Applicant's ana-lyses clearly states the risk
-- in the form of possible accident sequences -- that is being avoided by mode reduc-tion.
Hence, it is impossible for us to evaluate the ap-propriate duration of time before mode reduction is re-quired.
It is obvious that permitting operation during an equipment out-of-service time is a potentially dangerous practice.
Because the time of out-of-service operation is limited, there is little total risk during this time and therefore little chance that empirical evidence will become available with which to evaluate the extent of the risk occurring during implementation of this practice.
So it seems to the Board that it is particularly important that risks during out-of-service time be carefully delimited by analysis.
As no such analysis appears to have been done,"
"The Applicant's No Significant Hazards evaluation does Dst analyze this situation.
Instead, it uses the following phrases to supplant analysis: generally high reliability, narginal reduction in overall system reliabil-ity, slight increase in time, generally high reliability, and extremely remote.
No consideration has been given to specific accident scenarios and no probabilities have been (continued...)
, we ask the Applicant and Staff to carefully scrutinize these provisions and, in particular, to anticipate possible acci-dent sequences that are being risked and to take appropriate steps -- including reducing the risk exposure -- if the analysis indicates some new grounds for caution.
(See Tr.
108-117.)
In this instance, however, Petitioner's assertions that there is increased risk from this technical specification change is based entirely on Applicant's admission that there is a relaxation of requirements here; and we do not think that the admission, without more, is enough to provide a basis for this contention in light cf the Staff letter supporting the Applicant's position.
Petitioner brought no expert opinion to bear to show what risks are being taken and only the Board -- and not Petitioner -- has advanced
"(... continued) estimated.
The full " analysis", at App. A 1-5, is:
The potential relaxation discussed above is accep-table because of the generally high reliability of the A-C sources, the marginal reduction in overall system reliability due to the temporary unavail-ability of one of the two A-C sources and the slight increase in time allowed for the mode re-duction (7 to 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br />).
Also, due to the gener-ally high reliability of the safety systems in the plant, the likelihood of one train of a two train safety system being inoperable at the same time that one of the two A-C sources powering the oppo-site train components is inoperable, is extremely remote.
1
' reasons to be concerned about Applicant's new procedure."
(See Tr. 65.)
Consequently, we find that Petitioner did not show the existence of a genuine issue of fact and this s
contention is not to be admitted.
E.
Contention 7 Proposed contention 7 states:
Specifically, the amendments would change the CTS at specification 2.1.1.
The CTS require, at the related section 1.1, that if any safety limit is exceeded, the associated reactor shall be shut down until the AEC authorizes resumption of operation.
The CTS at section 2.1 provides for fuel cladding in' aurity as indicated at B2.1 with a design pres-
. of 2485 psig for safety valve set points.
1,5f.tionally the CTS include requirements for TWO Aou ONE loop operation, and natural circulation.
The RTS are less restrictive because they do not include requirements for TWO and ONE loop oper-ation, and natural circulation.
The RTS relax existing safety margins in the CTS by permitting a (one hour) time requirement for mode reduction in the ACTION statement.
In the RTS at Figure 2.1-1, the reactor core safety limits appear to be outside of the safety margins described in the CTS.
In this contention, Petitioner challenges a portion of Applicant's proposed technical specifications that appears to be more restrictive than the prior version.
In the pro-posed specifications, Applicant has deleted the requirements l
for one and two loop power operation.
They have done this because power operation with less than three loops has not "Although we might declare a sua sconte issue on the ground that this issue is important to safety, we trust the l
Staff to respond sympathetically to our suggestion and we do not, therefore, think it necessary to make this a matter set for hearing.
s
' been analyzed in the safety analysis and, therefore, should not be permitted in the technical specifications.
Proposed Technical Specification 2.1.1 at App. A 2-1.
Since Peti-tiener does not show how this apparent tightening of the l
technical specifications is less restrictive, we find no genuine issue with respect to that part of the contention.
See Tr. 68-72.
q There is another potential issue here concerning wheth-er or not there has been a change in the time required for mode reduction.
Applicant claims that "An ACTION statement is added for consistency with the Standard Technical Speci-fication."
The Action statement permits one hour for mode reduction for exceeding a combined limit for thermal power, pressurizer pressure and the highest operating loop coolant temperature.
Proposed Technical Specification 2.1.1 at A 2-1.
We note that Applicant does not discuss what action was appropriate under the current technical specifications, orier to the addition of this action statement
-- so we do not know precisely what change in practice has occurred.
However, the revised procedures have a separate section dealing with the reactor trip system, which produces faster shutdowns than the one hour required by S 2.1.1.
Further-more, they contain a clear statement that the plant must be in hot shutdown within an hour (S 2.1.1), that the NRC must be notified "as soon as practical" ($ 6.7.1 a.) and that
?
' critical operation shall not be resumed without permission of the NRC (S 6.7.1 d.).
This appears to comport fully with 10 CFR S 50.72 and, since Petitioner has given us no reason to determine that there is any uncovered situation for which faster shutdown than one hour is required, we find that there is no genuine issue of fact and do not admit this portion.of the contention.
See also Tr. 73 (representation of counsel concerning current practice).
Still another potential issue with respect to conten-tion 7 relates to petitioner's argument, at Tr. 84-85, that:
(T]he reactor core safety limits appear to be outside the safety margins described in the current technical specification.
And in that revised tech-nical specification Figure 2.1-1, the RTS at 110 (percent) power (has a) Delta T ((T-average = 1/2 (T-hot + T-cold))
at.
2,385 psig, (of)
. approximately 620 degrees fahrenheit.
And that has to refer to their figure 2.1-1.
That is compared to the current tech specs at 110 percent
. at 2,385 psig.
(of) approximately 627 degrees F.
However, both the Applicant and Staff stated that there was no change in this particular figure from the current techni-cal specifications.
Having checked both the current and revised specifications we also are not aware of any change.
Therefore, it appears -- as Mr. Saporito stated at the prehearing conference at Tr. 87 -- that Mr. Saporito was misled by the documentation he used into believing that a problem existed when in fact no problem did exist.
- Hence, this portion of the contention shall not be admitted.
o F.
Contention 8 Contention 8 states":
Specifically, the amendments would change the CTS (current technical specifications) at specification 2.1.2.
The CTS require immediate plant shut down and compliance with Administrative Controls in section 6.3[;).
page 6.3-1 contains the repor-ting requirements.
The RTS (revised technical specifications), in an ACTION statement, require plant shutdown within 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> and compliance with Administrative Controls in Section 6.7.1 if the safety limit is not met in MODE 1 or 2.
Therefore, the RTS represent a relaxation of safety margins existing in the CTS.
The lack of admissability of this contention is governed by the portion of our discussion of Contention 7 in which we discussed S 2.1.1 in the revised technical specifications (with respect to THERMAL POWER, pressurizer pressure and the highest operating loop coolant temperature) that requires plant shutdown within one hour and compliance with the Administrative Controls in Section 6.7.1, We find that the same_ procedure, when applied by S 2.1.2 to Reactor Coolant System pressure, fully complies with 10 CFR S 50.73 and that Petitioner has not demonstrated that there is any signifi-
"At the prehearing conference, we invited Petitioner to specify errors or omissions in Applicant's supporting analyses.
In our memorandum, we have addressed only those issues for which Petitioner has attempted to show errors or omissions and have treated other portions as withdrawn.
For example, in Contention 8, Petitioner had argued that "the amendments would change.
specification 2.1.2 and.
(the " reporting requirements" at) S 6.3 [have been re-laxed)." Contention 8.
However, as Applicant stated, there is no S 2.1.2 in the current technical specifications and S 6.3 is irrelevant.
Letter of April 4, 1990.
These problems appear to have resulted from Petitioner's use of outdated o
l documents.
l
cant safety concern.
Hence, this contention is not ad-mitted.
G.
Contention 9 Proposed contention 9 states that "The RTS relaxes the CTS by providing for channel drift in the reactor trip set point table 2.2-1 at page 2-4 in the RTS."
However, the table in the RTS does not contain any values for channel drift and therefore does not make any substantive change in prior operation.
In addition, we have been assured by Applicant that it would require a new amendment to insert a value into the blank column on this table.
(Tr. 92.")
Hence, we conclude that there is no change in the referenced portion of the technical specifications and no genuine issue of fact.
The contention shall not be admitted.
H.
Contention 11 The proposed contention states:
The RTS relaxes the CTS because MODE Applicability is explicitly defined for each Surveillance Re-quirement and forced MODE reductions required by Action statements will, for the most part, stop with the first Mode beyond the LCO requirement.
In oral argument at the prehearing conference, Petitioner stated:
)
"We interpret the conversation in the transcript to constitute an assurance to us.
If it is not, Applicant should notify us promptly of our error.
l
' The Applicant in their safety evaluation admits in some cases that there will be a relaxation compared to the current requirements.
They even cite an example that the revised tech specs for the emer-gency core coolant system, the ECCS, the mode ap-plicability for modes 1, 2, and 3 and the action statement mode stops at mode 4, while the current tech specs requires mode reduction to mode 5.
So the current tech specs require them to implement a mode reduction to Mode 5, and then the revised tech specs are not as restrictive.
They only require mode change to Mode 4.
(Tr. 103.)
Petitioner then has criticized Applicant for failing to document or to present supporting references for its state-ment that "in Mode 4 the probability and consequences from a design basis rupture is reduced." (Tr. 104.)
Applicant's answer to this question of lack of analysis is that the change is consistent with the standard technical specifications for Westinghouse plants."
(Tr. 105.)
Ap-plicant concedes that there is some risk from being in Mode 4 rather than in Mode 5.
(Statement of Counsel, Tr. 106.)
Applicant also concedes that it did not provide a systematic review of possible accident sequences that might occur in Mode 4.
(Statement of Counsel, Tr. 108.)
Nor has the Board or the public been provided with supporting analyses from the Staff's acceptance of the standard technical specifica-tions.
(Staff Counsel, Tr. 113.)
"Although we are not aware of any analyses accompany-ing the standardized technical specifications -- and there-fore have a void on our record -- we suspect that there may i
be very little difference in risk occurring because of a 150' difference in temperature between hot and cold shut-down, occurring in a system designed for extremely high pressures and temperatures.
- Under the circumstances, we conclude that Petitioner has created a genuine issue of fact concerning Applicant's omission from its analysis of consideration of the risks related to the change in mode reduction requirements.
Hence, this contention shall be admitted with respect to this genuine issue of fact.
I.
Contention 12 In oral argument, Petitioner narrowed Contention 12 to deal exclusively with its concern that the frequency of surveillance for the RCS boron concentration in operating modes 1 and 2 is reduced from twice per week to once in 31 effective full power days.
The No Significant Hazards Evaluation -- which also constitutes Applicant's Safety Evaluation 21 -- at App. A 3/4 1-3, justifies this change because:
the RCS boron concentration is not directly related to SHUTDOWN MARGIN in MODES 1 and 2.
The SHUTDOWN MARGIN in Modes 1 and 2 is ensured by surveillance of the control rod bank position and verifying that the rod bank withdrawal is within the allowable withdrawal limit.
l The principal argument Petitioner presented was the unsup-ported assertion that the probability for change in boron concentration is greater in MODES 1 and 2.
(Tr. 121-22.)
By inference, Petitioner therefore argues that more frequent i
surveillance is required to maintain constant boron con-IITr. 179.
~ = - - - - - - - -
?
- {
l centration.
However, Petitioner does not respond to the principal argument: that the boron is not needed for shut-down margin in these modes."
Hence, this contention shall not be admitted.
J.
Contention 14 Proposed Contention 14 states:
Specifically, the amendments would change the CTS at specification 3/4.1.2.2.
(1)
The RTS relaxes the safet-; margins existing in the CTS whereas in the RTS a boric acid pump is only required to be operable when its associated flow path is required to be operable.
(2)
The allowed outage time for a boric acid pump is relaxed from 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />.
(3)
The RTS do not require cold shutdown of the plant for a period of 102 hours0.00118 days <br />0.0283 hours <br />1.686508e-4 weeks <br />3.8811e-5 months <br /> after loss of the boric acid pump or the boric acid flow path.
(4)
The RTS include an explicit Action time for restoring operability of the boric acid flow path which ultimately can result in a lapse of 174 hours0.00201 days <br />0.0483 hours <br />2.876984e-4 weeks <br />6.6207e-5 months <br /> before the plant is required to be placed in cold shutdown.
(5)
The RTS provide for an explicit Action restriction which addresses an event where both the boric acid source and the normal flow path through the regenerative heat exchanger is inoperable.
Petitioner objects to relaxing requirements so that the boric acid pump is only required to be operable when its associated flow path is required to be operable.
Applicant points out in its No Significant Hazards Evaluation, at App.
"See 10 CFR S 50.62, which is consistent with the position of Staff and Applicant because it requires an independent auxiliary (or emergency) feedwater system for PWRs (subsection (c) (1)) rather than a standby liquid con-
' trol system, which is required for BWRs (subsection (c)(4)).
- A 3/4 1-16, that the boric acid pump is not assumed to be operable in the safety analysis.
Petitioner asserts, with-out authority, that if safety injection fails, "the only thing you have left is insertion of boron to decrease the reactor's reactivity to bring it to safe shutdown margin."
Tr. 131.
Since Petitioner does not offer qualified facts, pur-suant to the regulations, or cite a relevant source on this point, we accept Applicant's representation.
There is no genuine issue of fact and this portion of the contention shall not be admitted.
Petitioner also alleged that it was improper to permit hot standby for 102 hours0.00118 days <br />0.0283 hours <br />1.686508e-4 weeks <br />3.8811e-5 months <br /> after loss of operability of a charging pump.
Petitioner is addressing a mode change where Applicant will-go to hot standby with boration for 102 hours0.00118 days <br />0.0283 hours <br />1.686508e-4 weeks <br />3.8811e-5 months <br /> instead of cold shutdown.
The full statement concerning this " relaxation" in current requirements is set forth in the No Significant Hazards Evaluation at App. A 3/4 1-14, S A.2)c.3., and states:
The requirement for restoring operability if the boric acid pump or the boric acid flow path is not returned to service within the initial time period is changed from placing the plant in cold shutdown within an additional 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> to placing the plant in hot standby and borating to 1% delta-k/k at 200'F within the next 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> and restoring the plant to operable status within the next 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> or be in cold shutdown within the next 30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br />, j
The logic of this section seems impeccable.
The prim-ary function of the boric acid pump and flow path in hot l
l
34 standby is to provide enough boration to attain the boron needed for cold shutdown margin (i.e., borating to 1% delta-k/k).
Hence, if you borate to that standard, it seems acceptable to stay in hot shutdown for some period of time.
This would have ended our inquiry but for language in the No Significant Hazards Evaluation at App. A 3/4 1-17 that we do not fully understand.
The language that we do not understand states:
After borating to cold shutdown SDM, the only boration system function is make-up for loss in volume due to shrink.
In the event that this capa-bility is lost in this timo interval, the olant's ability to reduce modes as reauired is lost, but the safety aspect of maintaining the SDM is pre-served.
So, extending the time period to restore operability to the pumps or flow path does not result in an increase in the probability of or impact on the consequences of an accident previous-ly evaluated.
(Emphasis added.]
our concern is that it seems to be possible, during the additional time in hot standby, to lose the ability to reduce modes; the possible safety implications of this loss of ability require explanation.
Accordingly, we find the Applicant's explanation inadequate and admit this conten-tion for this one purpose, K.
Contention 16 Proposed Contention 16 states:
Specifically, the amendments would change the CTS at specification 3/4.1.2.4.
(1)
The RTS would relax existing safety margins in the CTS whereas the RTS change the BAT boron concentration surveil-lance from twice weekly to weekly.
l l
4 L.:
f-i l (2)
The RTS would relax existing safety margins in the CTS whereas the RTS delete the BAT level instrument weekly channel check.
Petitioner objects to a relaxation in BAT boron con-centration surveillance from twice weekly to weekly, the l
deletion of a minimum volume requirement on the primary water storage tank, and the provision of some specified delays in m300 changes required because of the inoperability of the Boric Acid Storage System.
Applicant explains the a
basis for these provisions in the Proposed Technical Speci-fications at B 3/4 1-2 to 4; it also handles this subject in its No Significant Hazards evaluation at App. A 3/4 1-27.
As Staff points out:
In the application Applicant states the boron concentration does not vary very much over a week, thus making weekly surveillance of the concentra-tion adequate, and that there are additional sur-veillance requirements which compensate for the deleted channel check.
App. A at 3/4 1-23 to 24.
Petitionerhasnotaddressedgpplicant'sdiscus-sion of these changes at all.
We agree with the Staff.
Petitioner has failed to show that Applicant is in error or has omitted something from its analysis.
(See Tr. 146-50; note that Applicant repeats its assurance that a weekly boric acid tank volume surveillance is planned.)
Hence, there is no genuine issue of fact and this contention is not being admitted.
Petitioner states that:
23Staff Response at 40.
_-, their position in_the safety evaluation is that once a week is adequate (surveillance) because the boron concentrations don't significantly change in Modes.5 and 6.
Our position is the safety analysis is incomplete because they should have considered boron concentration in all modes of operation be-cause that's the way it's established in the cur-rent technical specifications.
Tr. 146.
I Petitioner is correct that the safety analysis presented in the No Significant Hazards Evaluation at App. A 3/4 1-23 omits any discussion of the deletion of surveillance re-quirements for MODES 1 through 4.
Since the boron con-centration surveillance is reduced for all modes (see 3/4.1.2.4 A.
2) c.1.
at App. A 3/4 1-22), Petitioner seemed to have addressed an omission in the analysis.
However, the Staff addressed this at Tr. 150 by stating "[T]he technical specification at issue here appears to be related to shut-down, which would be the modes that were discussed in the safety analyais -- in the accompanying no significant ha-zards analr is."
In this assertion, which was not con-trovertri by Petit'oner, Staff appears to be correct.
Hence, tart e it r
- eauine issue of fact here and this portion
- uo ent e:ttion is not being admitted.
Peti M Ma c"atinues to say:
You know, they say that that channel check surveil-lance they want to delete, and they say it's not needed because they do a weekly surveil they do a weekly check on it and even the instru-ment that's local at the tank -- if it indicated l
zero in there, that there's always 900 gallons L
remaining in there.
Tr. 147.
L
i J.
' This we find to be an incorrect reading of Applicant's position.
Applicant.does not assume that 900 gallons always remains in the. BAT regardless of the reading of the in-1
'dicator.
What it says is that the indicator never-shows less than 900 gallons and that they therefore rely on a weekly vu(v61ilance of the BAT liquid volume itself to determine whether the inntrunent readings are accurate.
No Significant Hazards Evaluation at App. A 3/4 1-24.
(Applicant also states that "the BAT is not required to be OPERABLE for accident mitigation by the reactor trip or ESF actuation system."
Petitioner does not address this ground for asserted safety.)
We conclude, therefore, that this portion of the con-tention -- dealing with the BAT level instrument weekly CHANNEL CHECK does not contain a genuine issue of fact and is not being admitted.
L.
Contention 18 Proposed Contention 18 states:
Specifically, the amendments would change the CTS at specification 3/4.1.2.6.
(1) The RTS would relax existing safety margins in the CTS whereas the RTS increase the allowable outage time for one channel of heat tracing from 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to 30 days.
Applicant would increase the allowable outage time for one channel of heat tracing from 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to 30 days.
No significant Hazards Evaluation at App. A 3/4 1-30.
How-ever, the increased outage time is allowed only because I
i 1.
~~
6 l
m,
there is an eight hour temperature surveillance to ensure that a proper temperature is-being maintained in the portion of the system that is traced.
Id. at App. A 3/4 1-31.
Petitioner's principal challenge is to question how a temperature surveillance can be appropriately performed in order to assure proper temperature is maintained.
Tr. 151; No Significant Hazards Evaluation at App. A 3/4 1-31, S B.3)a.
Although this argument is not directly answered on the transcript (Tr. 152-154), Petitioner is not an expert in methods of performing surveillance of piping systems and we are unpersuaded by his unsupported assertion that there is some difficulty here.24 In addition, we note that Applicant has stated without contradiction by Petitioner that the boric acid is not required to be operable for accident mitigation (Tr. 153) and Petitioner has not stated any other purpose for which it needs to be available.. Hence, there is no genuine issue of fact and this contention is not being admitted.
i l'
l L
i 24 l-We expect that the Staff has ascertained, during its review of the RTS, that temperature surveillance measures are adequate.
i l
t
' M.
Contention 21 Contention 21 states:
Specifically, the amendments would change the CTS at specification 3/4.1.3.4.
(1) the RTS measures rod drop time from the "beginning of decay of stationary gripper coil voltage to dashpot entry".
This contention deals with rod drop time, petitioner alleges that Applicant admits that the measurement is a relaxation of requirements.
Tr. 154.
However, Applicant makes no such admission.
Indeed, it is clear that the new measurement is more conservative.
The prior measurement of rod drop time is from the beginning of rod motion to dash pot entry.
The new measurement commences before there is any rod motion.
It begins "from the beginning of decay of stationary gripper coil voltage" and ends at the same time as previously: with dash pot entry.
Since the new measure-ment begins earlier -- and ends at the same time -- and since the limit on the allowed rod drop time remains the same, it is-clear to the Board that the new requirement is actually more conservative and that there is no genuine issue of fact here.
No Significant Hazards Evaluation at App. A 3/41-42; Tr. at 157-158.
The contention is not being admitted.
l l N.
Contention 30 Proposed Contention 30 states:
Specifically, the amendments would change the CT3 at specification 3/4.4.1.1.-
The RTS relaxes the allowed outage time for a Reactor Coolant Loop in Mode 1 from one hour to six hours.
4 Petitioner objects to a relaxation of the outage time for a Reactor Coolant Loop in Mode 1, from one hour to six hours, because operation with two loops has not been ana-lyzed.
No Significant Hazards Evaluation at S 2.1.1 2) b. 2.
We conclude that this contention shall be admitted.
Applicant's explanation is far from complete:
Relaxing the time limit to be in [get into)" HOT STANDBY from one to six hours will allow the plant additional time to restore the loop or perform a normal shutdown.
Increasing this ACTION statement time limit will have a minimal innact on a previ-ously evaluated accident because the ACTION state-ment only applies in the unlikely event of a single RC8 loop being lost during NODE 1 or 2.
With power above the P-8 setpoint, a second plant accident transient during the time interval of the ACTION
-statement is unlikelv.- The Reactor Trip System continues to monitor plant conditions during the ACTION time interval and trip functions such as overtemperature delta-T, or loss of flow are avail-able to provide protection during the ACTION time interval.
Finally, adopting the proposed ACTION time has the potential benefit of reducing the
- number, plant.',of reactor trip transients imposed on the (All emphasis added but for all-caps.)
DProposed Technical Specifications 3/4.4.1.1 A.
- 2) c.
at App. A 3/4 4-1 states that "The allowed outage time for a REACTOR COOLANT LOOP in MODE 1 [!] is relaxed from one hour to six hours."
)
26No Significant Hazards Evaluation at App. A 3/4 4-2.
['
m
na Petitioner challenges Applicant's justification for this. change (Tr. 160)':
Increasing this ACTION statement time limit will have a minimal impact on a previously evaluated accident because the ACTION statement only acclies in the unlikelv event of a sincle RCS looD beina lost durina MODE 1 or 2.
No Significant Hazards Evaluation at App. A 3/4 4-2.
(Emphasis added.)
The Board agrees with Petitioner that this particular jus-tification is lacking.
An ACTION statement.should not be justified simply because it would be used only rarely.
The question is whether it is safe when it is used.
Petitioner also challenges this new outage provision because Applicant has deleted the technical specifications governing operations with two loops, stating that the safety analysis for the plant has not analyzed the safety of oper-ating with just two loops.
Tr. 160-61; Proposed Technical Specification 2.1.1 at App. A 2-1 (".
. power operation (MODES 1 and 2) with less than three loops is not analyzed in the safety analysis.").
In an attempt to explain this problem, Applicant erroneously stated that this technical specification permits " hot standby" and not operation and that there is no need for a guideline governing operation with two loops when all that will be attempted is hot stand-by with two loops.
Tr. 162.
However, Proposed Technical Specifications 3/4.4.1.1 A.
2) c.
at App. A 3/4 4-1 states that "The allowed outage time for a REACTOR COOLANT LOOP in i
l l
L
.o 42 -
MODE 1 is relaxed from one hour to six hours."
(Emphasis added.]
Since the loss of a coolant loop reduces heat removal capacity, it is important that operation in this mode even for six hours be analyzed.
However, that apparently has not been done.
Nor are we pleased with the Applicant's use of the adjectives " minimal impact," "unlikely event," and "un-likely," in place of analysis.
While it may be true that this change increases plant safety through reducing the num-ber of reactor trip transients, that depends on whether this particular change is safe and can be justified.
27 O.
Contention 33 Proposed Contention 33 states:
Specifically, the amendments would change the CTS at specification 3/4.4.2.1.
(1)
The RTS provides for an Action statement modified so that an oper-able code safety valve is not required if the RCS is vented though an equivalent size vent pathway.
(2)
The RTS relaxes the current requirement l
to test'all safety valves each refueling to only testing a fraction of the safety valves.
(3)
The RTS delete the requirement of Mode and operability of safety valves.
I Petitioner objects that Applicant is moving from tech-nical specifications that require more frequent surveil-lance of safety valves to the frequency specified in the American Society of Mechanical Engineers (ASME) Code, which 27At Tr. 163 Petitioner states that it is addressing Contention 31, but he mis-spoke.
See Tr. 165.
a h
t-
.- has been accepted in 10 CFR S 50.55 (a) (G) (4) as an adequate assurance of safety.
Hence, Petitioner (which did not review the ASME code provisions -- see Tr. 167) appears to be challenging a Commission regulation, which it may not do.
There is, therefore, no genuine issue of fact and the con-l tention shall not be admitted.
.P.
Contention 35 Proposed Contention 35 states:
Specifically, the amendments would change the CTS at specification 3/4.4.4.
(1) The RTS deletes the i
PORV's from the specification.
(2)
The RTS relax-es the block valve mode reduction from Mode 5 to Mode 4.
Petitioner's objection to this change in technical specifications does not challenge Applicant's conclusion that "no credit is taken in the safety analysis for PORV operation in-MODES 1, 2,
or 3.
Tr. 170.
However, as Ap-plicant has asserted without contradiction (Tr. 171-173),
the challenged section of the technical specifications deals only with MODES 1, 2,
or 3.
No Significant Hazards Evalua-tion at App. A 3/4 4-22 to 23.
Proposed Technical Specifi-cations 3.4.9.3 at 3/4 4-36 and 3.4.2.1 at 3/4 4-7 require that in MODES 4 and 5 there must be adequate pressurizer relief capacity.
See Tr. 172-3.
Hence, Petitioner's objec-tion is not well-taken.
There is no genuine issue of fact and this contention is not being admitted.
L I
L e
y l
' I Q.
Contention 51 Proposed Contention 51 states:
Specifically, the amendments would change the CTS at specification 3/4.8.1.1.
(1) The RTS relax existing safety margins by requiring that if both start-up transformers are inoperable,- both the diesel generators be demonstrated. operable within i
eight hours unless the diesel generators are al-ready operating, and if one of the start-up trans-formers is not restored to operable status within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> then both units be shut-down.
(2)
The RTS relax existing safety margins by requiring that if both diesel generators are-in-operable, both start-up transformers be demonstrat-ed operable within one hour and if one of the die-sel generators is not restored to operable status within two hours then both units be sequentially shut down.
(3)
The RTS relax existing safety margins by deleting the peak voltage requirement immediately following a complete diesel generator load rejec-tion test.
(4)
The RTS relax existing safety margins by only requiring a check of diesel fuel inventory when the diesel is demonstrated operable.
(5)
The RTS relax existing safety margins by specifying that the diesel generator (s) be started only and not synchronized and loaded.
(6)
The RTS relax existing safety margins by allowing.for-performance of a fast start only at least once per 184 days and all other starts to be i
preceded by warmup procedures.
(7)
The RTS relax existing safety margins by reducing the diesel generator surveillance test frequency to at least (sic) once per 31 days.
Petitioner's principal concern in this contention is that Applicant has allegedly failed to analyze the effects of a loss of off-site power.
Tr. 182-203.
However, despite
.the Board's explicit invitation (Tr. 191), Petitioner never specified what chance in a technical specification raised the question Mr. Saporito was addressing.
Indeed, we are persuaded by Applicant's argument that the Proposed Techni-
is-
?
' cal l Specifications 3/48-2 (at 1 b.12..) are more conservative because they have added a new ACTION statement that requires the demonstration of operability of the cranking diesels
-l when a startup transformer is inoperable.
Tr. 204-205.
We also agree with.the Staff that Petitioner's arguments ad-dress compliance withLa station blackout rule that does not yet cover Applicant, that they are not relevant to the subparts of this contention, and that they do not show how a
.particular proposed change would in fact reduce a safety margin.
Tr. 206.
Hence, this contention is not being admitted.
2s R.
Contention 25 This lengthy contention relates to the effect of reac-tor vessel heatup and cool down and surveillance on the strength of the pressure vessel.
In this Contention, Peti-tioner first sought to argue that there was a change in a graph in the technical specifications that sets forth pres-L'
.sure/ temperature curves, presumably for the reactor pressure vessel.
However, after a conference, Petitioner agreed with i
Applicant that there was in fact no change made in these curves as a result of the pending amendments.
Tr. 210-211.
L Thereafter, the Board made repeated attempts to have the Petitioner specify what particular changes in the tech-28This contention is out of order in Petitioner's filing.
It may be found at page 104.
I
. [. i :
" nical specifications were being objected to;:but the Peti-tiener failed to specify any particular change.
Tr. 211-218.-
In addition, as we read Contention 25, we fail to ascertain any specified change.
Furthermore, Applicant stated at the prehearing conference that, "There are no J
changes of substance between the current techs and the proposed tech specs."
Tr. 219.
Staff also stated that "there are no changes."
Tr. 221.
Since the only " relax-ation" in S 3/4.4.9.1 is deletion of Figure 3.1-2 and since
' Petitioner has not addressed the significance of that dele-tion (No Significant Hazards Evaluation at App. A 3/4 4-41), we conclude that Applicant's and the Staff's mutual assertion of no significant change is indeed correct.29 Consequently, there is no genuine issue of fact with respect to this contention and it is not being admitted.
t S.
Contentions 1 and 2 Contentions 1 and 2 are both environmental contentions.
Contention 1 alleger that an Environmental Impact Statement 29Petitioner also argued that there was some im-propriety or illegality in Applicant separating out one change in its technical specifications and filing it prior to its filing of its current revision.
Tr. 223-24.
We do not agree with this argument.
Applicant is free to file amendments to its license in any order that it desires to file those changes.
We know of no limitation on that dis-cretion.
l-
- t we
- 4
-4 4.o v (EIS) must be prepared; and Contention 2 that an Environmen-tal Assessment must be prepared.
1.
Legal Background We agree with the Staff concerning the appropriate legal co.ntext in which to review these contentions.
The applicable regulation is 10 C.F.R.
S 51.20, which requires that an environmental impact statement be prepared if the proposed action (the proposed technical specification amend-ments) is a major Federal action significantly affecting the quality of the environment.
We endorse the following por-tion of the Staff's briet:
The scope of a National Environmental Policy Act (NEPA) environmental review of a license amend-ment is more limited than one performed prior to initial licensing.
Florida Power and Licht Co.
(Turkey Point Nuclear Generating Station, Units 3 and 4), LBP-81-14, 13 NRC 677, 684-85 (1981); Con-sumers Power Co. (Big Rock Nuclear Plant), ALAB-636, 13 NRC 312, 319 (1981).
A NEPA review for a license amendment requires an evaluation of only those environmental impacts beyond those evaluated previously which will result from the proposed action.
Idz A petitioner raising a NEPA claim is required to show a dispute exists between it and the ap-plicant or the Staff on a material issue of fact or law.
10 CFR S 2.714 (b) (2) (iii) ; 54 Fed. Rec. at 3g 33172.
l 30Staff Response at 21-23.
i l
1
- l
x.. y-
' Under the Commission's regulations, an environmental impact statement is not automatically required for the proposed action.
Egg 10 CFR S 51.20.
The Staff determines whether an environmen-tal assessment is.requiped or whether the action is a categorical exclusion (footnote-in original) for which no environmental document is required.
i Egg 10 CFR SS Sg.21, 51.22(b), 51. 22 (c) (9) and (10), 51.14(a).
[ Footnote added.]
2.
Analysis of Contentions 1 and 2 Petitioner asks in these two contentions that an envi-ronmental impact statement and an environmental assessment be prepared.
Petitioner's Amended Petition at 24, 26.
The cited ground in both instances is that the amendment of the 3'"' Categorical exclusion' means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which the Commission has found to have no such effect in accordance with procedures set out-in S51.22, and for which, therefore, neither an environmental assessment nor an environmental impact state-ment is required." 10 CFR S 51.14(a), Definitions.
32Section 51.25 provides:
Before taking a proposed action subject to the provisions of this subpart, the appropriate NRC Staff director will' determine on the basis of the criteria and classifications of types of actions in SS 51.20, 51.21 and 51.22 of this subpart whether the proposed action is the type listed in l
i S 51.22(c) as a categorical exclusion or whether an environmental impact statement or an environ-mental assessment should be prepared.
l l
4
,._,m
sr ?'
5 49 _
technical specifications is "a major Federal action.""
Id.
L Within the body of these contentions, there are no facts set forth that establish that this is a major Federal action.
In particular, there is no basis for believing that the. amendment of the technical specifications has some over-all effect other than the effect of each of the parts.
How-i ever, all the other contentions allege that there is an increased hazard resulting from the proposed amendment.
We think that Petitioner intends that by proving these allega-tions it will ertablish that the change in technical speci-fications is a major Federal action.
Therefore, it is ap-propriate to consider Contentions 1 and 2 in this context.
If Petitioner were to establish in one of its other conten-tions that there is a serious effect on safety, then it
.might sustain these first two contentions based on the others.
i "We have reviewed the regulations governing categori-cal exclusions from the need to prepare an environmental assessment and find that -- for the most part -- the allega-tion of " major Federal action" is sufficient to overcome exclusions.
For example, changes in inspection or surveil-lance requirements are exempt if there are no significant hazards considerations and no changes in off-site effluents or occupational hazards (10 CFR S S1.22(c) (9)); and we interpret the allegation of major Federal action to imply a significant hazard.
However, pursuant to 10 CFR S 51.22 (c) (10), changes in administrative procedures are exempt.
We also note that Applicant has not prepared an en-vironmental report in support of its amendment.
.. r
.g se y v
- Our conclusion is that contentions 1 and 2 should, therefore, be admitted.
However, their consideration --
including discovery based solely on the environmental bal-ance -- shall be deferred.
Only if the litigation of the other contentions establishes that there is enough of an impact on safety" for this amendment to be a major Federal action, will it be necessary to litigate these two environ-mental contentions separately.
Otherwise, these deferred contentions may be dismissed based on consideration of the other admitted contentions.
ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 15th day of June 1990, ORDERED, that:
Contincent Admission of Party 1.
The Nuclear Energy Accountability Project (NEAP) is admitted as a party to this proceeding, based solely on its representation of its member, Mr. Thomas Saporito.
2.
NEAP's continued participation in this proceeding is dependent on Mr. Saporito serving on this Board, on or "It is unlikely, but conceivable, that the Board would determine that an amendment is permissible under the regula-tions but creates so much additional risk that it is a major Federal action.
g o. l
- io before the 19th day of June 1990, a pleading in which he personally states his willingness to be represented by NEAP.
3.
Should Mr. Saporito fail to respond as ordered in i
paragraph 2, this case shall be dismissed.
t Contentions i
i 4.
The contentions that are admitted in the following paragraph are admitted only with respect to the genuine issues of fact discussed in the accompanying memorandum.
5.
Only the following four contentions or portions of contentions are admitted:
1, 2,
11 (risk related to change in mode reduction requirements), 14 (possible loss of abil-ity to change mode), and 30 (operation without one reactor-coolant loop).
6.
Litigation of Contentions 1 and 2 is deferred, pending the Board's conclusion on whether litigation of Contentions 11 and 30 establishes that the proposed modifi-cation of the technical specifications is a major Federal action.
Schedule for case 7.
Discovery and the filing of motions for summary disposition with respect to Contentions 11 and 30 shall be concluded by the end of August 1990.
8.
A hearing on Contentions 11 and 30, if necessary, shall be scheduled early in October 1990.
m.
W 4 -
1 52 -
i A11eaed Harassment
- 9. All material in our record that contains allega-I tions of intimidation or harassment of Mr. Saporito shall be considered to be struck from our record.
l 1
i Anneal i
1 10.-
Applicant'and the Staff may, pursuant to S 2.714a(c), appeal the portion of this order granting the petition-to intervene, contingent on Mr. Saporito's re-j sponse.
The time for instituting an appeal shall, however, be suspended until after Mr. Saporito shall file his re-sponse to paragraph 2 of this order.
I 11.
Except for paragraph 10 of this order, this is an l
interlocutory order from which there is no appeal at this time.
THE ATOMIC SAFETY AND LICENSING BOARD CW e
Dr. George D. Anderson l
Administrative Judge s
t fW f
Elizab6th B. Johp'sp' n Ad ini trative Judge 1
/,$$
eter B.
Bloch Chair I
Bethesda, Maryland d
..4. *
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION in the Matter of I
I FLORIDA POWER AND LIGHT COMPANY Docket No.(s) 50-250/ 51-DLA-5 I
(Turkey Point Plant, Unit Nos. 3 & 4) I t
I CERTIFICATE OF SERVICE 1 hereby certify that copies of the foragoing LB M60 (PREHEARINS CONF....)
have been served upon the f ollowing persons by U.S. mail, first class, except an otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Atomic Saf ety and ' Licensing Appeal Administrative Judge Board Peter B. Bloch, Cheirman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing boere Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555
- Administrative Judge Patricia Jehle, Esquire George C. Anderson Office of the Beneral Counsel ASLBP U.S. Nuclear Regulatory Commission 7719 Ridge Drive, NE Washington, DC 20555 Centtle, WA 96115
- Steven F. Franz, Esquire
- Thomas 0, Saporito, Jr.
Newman & Holtzinger, P.C.
Executive Director 1615 L Street, NW Nuclear Energy Accountability Freject Washington, DC, 20036 P. O. Box 129 Jupiter, FL 33466
- Administrative Judge Elizabeth B. Johnson Oak Ridge National Laboratory P.O. Box 2000 Bethel Valley Rd Bldg 3500 Oak Ridge, TN 37831 Dated at Rockville, Md. this 15 day of June 1990
- Sent via Federal Express.
OffI$
f the Secretery ci~the ComAi$$i'on
~~ ~~