ML20049K076
| ML20049K076 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 03/23/1982 |
| From: | Willmore R CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8203290377 | |
| Download: ML20049K076 (28) | |
Text
6 March 23.,11942i P2 20 UNITED STATES OF AMERICA '/5 NUCLEAR REGULATORY COMMISSION a Before the Atomic Safety and Licensing Appeal Board In the Matter of )
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 , _ _ _
ILLUMINATING COMPANY, et al. ) 50-441 s G i Q_ , ,
gv yN (Perry Nuclear Power Plant, ) s'/' , Oh Units 1 and 2) )
/ -(/y G,\
vo l
'& Y-El w/C MOTION FOR DIRECTED CERTIFICATION OF THE \' /, '/
LICENSING BOARD'S MEMORANDUM AND ORDER '\ ,;/
OF MARCH 3, 1982 - , ,- ,',/
xyi/ s On March 3, 1982, the Atomic Safety and Licensing Board below (" Licensing Board") entered a Memorandum and Order granting in part the motion of Intervenor Sunflower Alliance, Inc. (" Sunflower") to resubmit its contention on hydrogen control. For the reasons stated below, Applicants move the Atomic Safety and Licensing Appeal Board (" Appeal Board"),
pursuant to its authority under 10 C.F.R. SS 2.718(i) and 2.785(b)(1), to direct the Licensing Board to certify to it for immediate appellate review that portion of the Memorandum and Order admitting the hydrogen control contention. Applicants i
request that the Appeal Bord reverse the Order and deny Sunflower's motion to resubmit its hydrogen control contention.
l At the outset, Applicants wish to emphasize that this [)5Q3 l S l
l 8203290377 820323
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4 motion for directed certification is not filed merely to obtain Appeal Board review of the hydrogen control contention or to challenge any particular finding of the Licensing Board.
Rather, Applicants bring this motion to obtain Appeal Board review of the Licensing Board 's failure to follow NRC regula-tions and Commission and Appeal Board authority, which, if permitted to continue, will undermine the efficacy and purpose of this entire license proceeding.
Background
In its Petition for Leave to Intervene, Sunflower sought to raise a contention on the ability of the Perry Nuclear Power Plant ("PNPP") " structures and containments" to withstand a hydrogen explosion such as occurred at Three Mile Island, Unit 2.1/ Applicants, in their special prehearing conference brief, I noted that hydrogen control was the subject of a pending NRC rulemaking proceeding, 45 Fed. Reg. 65466 (Oct. 2, 1/ The pertinent portion of the contention read as follows: ,
Petitioners allege that there is insuffi- -
l cient documentation of the ability of the containment structures of said facilities to safety inhibit a. hydrogen explosion of the magnitude and type which occurred at Three Mile Island Unit 2 near Harrisburg, Pennsylvania and of which the Commission is aware.
Petition for Leave to Intervene, dated March 5, 1981, at 6.
The contention also included allegations of low-level radiation j releases that are not relevant to the present motion.
2/ See Applicants' Brief on Contentions of Sunflower Alliance, Inc., dated May 22, 1981, at 10.
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4 1980) (" Interim Rcquirements Related to Hydrogen Control and Certain Degraded Core Considerations"), and, therefore, should not be considered in a license proceeding. See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974) (" Douglas Point").
At the June 2, 1981, Special Prehearing Conference, the Licensing Board stated its tentative view that the hydrogen control contention was governed by the Commission's decision in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-80-16, 11 NRC 674 (1980) ("TMI-1"). As explained by the Licensing Board, a hydrogen control contention based on quantities of hydrogen beyond those specified in 10 C.F.R.
F 50.44 can only be admitted if the intervenor can demonstrate a credible loss-of-coolant accident scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiation doses in excess of Part 100 guideline values. Tr. 320-22.3/ When Sunflower conceded that it could l not then comply with the TMI-1 requirements, the Licensing Board pointed out that Sunflower could seek to raise the contention at a later time, subject to meeting the standards for untimely contentions. Tr. 322-23.
i 3/ As the Licensing Board observed, the transcript is somewhat garbled at this point. Special Prehearing Conference Memorandum and Order of July 28, 1981, LBP-81-24, 14 NRC 175, 208.
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In its Special Prehearing Conference Memorcndum and Order, LBP-81-24, 14 NRC 175, 208-08 (July 28, 1981), the Licensing Board codified its tentative view expressed at the Special Prehearing Conference that the contention's admission,was governed by TMI-1. The Licensing Board, however, stated its belief that the Commission's subsequent two-to-two decision in Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), CLI-81-15, 14 NRC 1 (1981), weakened the force to be accorded to TMI-1.
We appare.-tly could adopt Commissioner Gilinsky's view [in McGuire] that the requirement of a specific credible accident sequence " amounts to saying that there is no need to protect against an accident that cannot be anticipated in detail, even when a closely related accident has already occurred." Id., at p. 9. However, we find that the TMI decision is still law and that we are " forced to act in blinders." Id. at
- p. 10-11.
LBP-81-24, 14 NRC at 208. The Licensing Board's reluctance to be governed 'v TMI-l then is made plain.
Were intervenors to propose a specific accident scenario, we might adopt a broad view of.what is " credible," in light of the ,
accident at TMI and this ambiguous legal
, background, but without such a scenario we l are now powerless to admit this particular contention.
Id. (emphasis added). ...
The Licensing Board rejected the argument of Applicants and the NRC Staff that the pending hydrogen control rulemakingA / barred admission of Sunflower's contention. The 1
4/ Although Applicants had relied on the Commission's
! proposed hydrogen contention rule published at 45 Fed. Reg.
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Licensing Board observed that the Commission in TMI-1 had contemplated the prompt initiation of a rulemaking on degraded core conditions, and that the degraded core rulemaking did not prohibit litigation of hydrogen control contentions.
LBP-81-24, 14 NRC at 208. The Licensing Board neither cited nor discussed Douglas Point, supra, relied upon by Applicants.E/
The Licensing Board also repeated its Special Prehearing Conference invitation for Sunflower to file a late contention addressing the TMI-I requirements.
Intervenors may desire to raise this contention at a later time. Should they do so they will need to meet the requirements of f 2.714, governing late filings of contentions. Obviously, as time passes, the criteria of that section will be harder and harder to meet.
LBP-81-24, 14 NRC at 208.
On January 8, 1982, more than seven months after the Special Prehearing Conference, Sunflower moved to resubmit its hydrogen control contention. In an attempt to comply,with the l
l TMI-1 standard, Sunflower submitted the following " specific credible accident sequence:"
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65466, see pages 2-3, supra, the Licensing Board failed to acknowledge the proposed rule, but, instead, cited to the l
Commission's advance notice of propaeed rulemaking on
" Consideration of Degraded or Melted Cores in Safety Regulation," 45 Fed. Reg. 65474 (Oct. 2, 1980). LEP-81-24, 14 NRC at 208.
5/ See Applicants' Brief on Contentions of Sunflower Alliance, Inc., dated May 22, 1981, at 10.
- 1. o pipe break in the reactor coolant pressure boundary causes a LOCA, as defined by 10 CFR 50.46(c)(1).
- 2. failure of the ECCS to maintain coolant inventory. The cause of this failure may be: electrical or mechanical component failure; common mode failures resulting from the LOCA; design deficiencies which undermine ECCS effectiveness; and/or operator error.
- 3. the Zircaloy fuel cladding melts; the zirconium reacts with_ water, liberat-ing hydrogen gas.
- 4. the hydrogen concentration within the containment increases to the flam-mability limit before the combustible gas control system becomes effective, or said system never operates effectively.
- 5. uncontrolled hydrogen-oxygen reaction
< (explosion) occurs.
- 6. containment is breached; a substantial fraction of the core inventory of fission products is released to the atmosphere, resulting in offsite doses at the LPZ boundary which exceed the j 10 CFR 100.11 guidelines of 25 rems whole body and 300 rems thyroid.
Sunflo,wer Alliance Motion to Resubmit Contention 7, at 3. .
As " good cause" for its late filing, Sunflower asserted that the Commission's final rule, " Interim Requirements Related to Hydrogen Control," 46 Fed. Reg. 58484 (Dec. 2, 1981), had not addressed design analyses for EWR Mark III containments.
l According to Sunflower, this clearly indicates that the rulemaking process is not adequately addressing this l
issue. Plaat specific litigation is j therefore appropriate . . . .
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e Motion to Resubmit, at 5. Sunflower evidenced no knowledge of the detailed rulemaking proceeding commenced on December 23, 1981, aimed specifically at hydrogen control for BWR Mark III containments. See 46 Fed. Reg. 62280 (Dec. 23, 1981) (" Interim Requirements Related to Hydrogen Control").
In their answers to the motion to resubmit, Applicants and the NRC Staff both noted that~the accident scenario submitted by Sunflower is not merely lacking in " minute details"--as Sunflower ,was quick to concede--but, in fact, is lacking in "any details."6/ More importantly, as further observed by Applicants and the Staff, the scenario lacks any basis for concluding that it is credible.
By Memora'ndum and Order of March 3, 1982, the Licensing Board granted the motion to resubmit, and admitted the following Issue # 8:
Applicant has not demonstrated that the manual operation of two recombiners in each of the Perry units is adequate to assure that large amounts of hydrogen can be safely accommodated without a rupture of the containment and a release of substantial quantities of radioac-tivity into the environment.
Notwithstanding its earlier statement that the criteria of 10 C.F.R. S 2.714, governing late contentions, would become harder and harder to meet as time passes, see page 5, supra, the 1
l 6/ See " Applicants' Answer" of January 25, 1982, at 8-9;
" Response of NRC Staff" of January 28, 1982, at 5-8. See also
" Sunflower Reply Brief" of February 26, 1982 (contending that it is " absurd" to require Sunflower to postulate a specific accident scenario).
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Licensing Board ignored Sunflowar 's seven month delay in filing l
the contention. Instead, the Licensing Board relied on two factors--the importance of the issue and whether intervenor's delay will contribute to an overall delay of the proceeding--in finding that the criteria for late filing have been met.
Memorandum and Order, at 10-11.
Although the Licensing Board held--or, at least, appeared to hold--that Sunflower had demonstrated the specific accident scenario required by TMI-1, it concluded "that little purpose would be served by litigating the likelihood that any one of the suggested scenarios (each one of which included a mechanism by which the reactor would experience a failure of the core cooling system) could occur." Memorandum and Order, at 11.
Rather, claiming to find support in recent " Commission utterances . . . inconsistent with the TMI decision on which
[it] relied, "2/ the Licensing Board invoked the " general powers of the presiding officer," and admitted the contention.
The Standard For Directed Certification The Appeal Board possesses the discretionary authority under 10 C.F.R. SS 2.718(i) and 2.785(b)(1) to direct the Licensing Board to certify an order to it for immediate 7/ The Licensing Board cited the Commission's proposed rule on hydrogen control for Mark III BWR's, 45 Fed. Reg. 62280 (Dec.
23, 1981), as,well as the Commission's recently issued Proposed Policy Statement On Safety Goals For Nuclear Power Plants, 46 Fed. Reg. 7023 (Feb. 17, 1982).
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interlocutory appellato review. San Public Service Co. of Nnw Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975). Although the Appeal Board has stated its reluctance to exercise that authority, it has held on numerous occasions that it will engage in interlocutory review where the ruling below either (1) threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, cannot be alleviated by a later appeal, or (2) affects the basic structure of the proceeding in a perva-sive or unusual manner. See, e.g., Public Service C0. of Indiana (Marble Hills, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977); Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units I and 2), ALAB-572, 10 NRC 693, 694 (1979); Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980).
Here, the latter test plainly is met.
l The Licensing Board has embarked upon a course patently inconsistent with NRC regulations and established Commission l
l and Appeal Board case law. It has taken it upon itself to 1
adjudicate the continued validity of a NRC regulation, and has l rejected binding authority on the most tenuous of grounds.
l This disregard of well settled rules and legal principles affects the license proceeding in the most pervasive and fundamental sense by placing into doubt as to every issue the significance of relevant NRC regulations and controlling authority. If this license proceeding is to take place within j co
the pararieters established by NRC regulations and Commicsion and Appeal, Board case law, it is incumbent upon this Appeal Board to restore such authority to its proper and necessary role by directing certification of the Licensing Board Order.
The Licensing Board Misunderstands Its Relationship To The Rulemaking Process Licensing Boards are required to apply Commission rules, not to make new ones. The Licensing Board's March 3rd Memorandum and Order has taken the forbidden path.
Notwithstanding the Licensing Board's view, 10 C.F.R. S 50.44 is still an NRC regulation. A rulemaking now is in progress to consider changes to S 50.44 for Mark III containments. See page 7, supra. It is improper for the Licensing Board to second-guess the outcome of this rulemaking and to seek to duplicate the generic rulemaking through this license pro-ceeding.
The Appeal Board has addressed the interaction between rulemaking proceedings and individual license proceedings. In Douglas Point, supra, the Appeal Board upheld the denial of a motion to intervene for the purpose of litigating contentions regarding the uranium fuel cycle's adverse environmental effects. Noting the Commission's ability to choose between deciding issues generically or on a case-by-case basis,E/ the 8/ The Appeal Board observed that the Commission, as well as other agencies, has "the flexibility to defer broad across-the-board issues presented in a multitude of individual
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Appeal Board held "that licensing boards chould not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission." Douglas Point, supra, at 85. The Appeal Board in its opinion made two observations fully applicable here.
First, the Appeal Board noted that the issue was "not a matter capable of simple resolution.. It necessarily encompassed considerations far transcending the operation of a single nuclear power generator, . . . [and] _w as thus particularly appropriate for resolution by the Commission in a rulemaking proceeding." Id. Second, the Appeal Board concluded that
" consideration in adjudicatory proceedings of issues presently to be taken up by the Commission in rulemaking would be, to say the least, a wasteful duplication of effort." Id.
Hydrogen control, of course, is not capable of " simple resolution" in a license proceeding, and necessarily encom-passes considerations far transcending the operation of PNPP.
Since Three Mile Island, hydrogen control is receiving substan-tial Commission consideration through its rulemaking proce-d0res. See, e.g., 45 Fed. Reg. 65466 (Oct. 2, 1981); 46 Fed. Reg. 58484 (Dec. 2, 1981); 46 Fed. Reg. 62280 (Dec. 23,
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adjudicatory proceedings and to consolidate them for considera-tion in a single rulemaking proceeding, while continuing in the interim to rely on individual adjudications to resolve remaining questions." Douglas Point, supra, at 84.
1981). In light of these recent efforts by the Commission, it is inconceivable that the Licensing Board did not at least recognize the generic nature of the hydrogen control problem, and the corresponding inadequacy of policy making through the license proceeding.
The " wasteful duplication of' effort" of litigating an issue that is the subject matter of Commission rulemaking is as readily apparent here as it was in Douglas Point. Whatever decisions the Licensing Board arrives at with regard to hydrogen control at PNPP, Applicants will have to comply with the final rule the Commission promulgatec for Mark III BWR's.
The increased expense of litigating the contention, as well as the delay that inevitably will result from adding an open-ended issue of this complexity, all will be obviated once the Commission completes its rulemaking proceeding. The Licensing Board's desire to engage in superfluous and inappropriate l policy making cannot justify such waste of the parties' resources and resulting delay of the license proceeding.
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The Licensing Board was not, however, left to its own devices in determiaing how to apply Douglas Point to Sunflower's motion to resubmit. Here, at least, it had recent and unequivocal Appeal Board authority directly on point. The Licensing Board not only chose to distegard that authority, it l
l chose to ignore it altogether.
l In Sacramento Municipal Utility District (Rancho Seco l
Nuclear Generating Station), ALAB-655, 14 NRC 799 (1981)
("Rnncho Seco"), the Appaal Bocrd uphold the licensing board's dismissal of a hydrogen control contention. The Appeal Board, unlike the licensing board, did not, however, reach the merits of the contention. Rather, the Appeal Board made the following statement:
[T]he Commission now has under considera-tion the consequences of the generation of large amounts of hydrogen within the containment following a TMI-2 event. In this circumstance, we rely on our prior holding that " licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission." Potomac Electric Power Co. (Douglas Point Station, Units 1 and 2),
ALAB-218, 8 AEC 79, 85 (1974). We thus leave the matter of hydrogen control at Rancho Seco to the Commission's considera-tion in the ongoing rulemaking and refrain from any explicit comment or judgment on this portion of the Board's decision.
14 NRC at 816-17.E!
The Appeal Board's holding could not be plainer:
licensing boards are not to litigate hydrogen control contentions. Such clear appellate authority cannot simply be ignored--yet, that is precisely what the March 3rd Memorandum and Order does.
l The Licensing Board's failure to even acknowledge Rancho Seco is not a mere oversight, or something peculiar to hydrogen 9/ In a footnote to its holding, the Appeal Beard cited with approval the fact that the licensing board had taken this course with regard to the exclusion of certain contentions concerning emergency response plans. 14 NRC at 817 n.25.
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control. It cppears to ba -- as evidenced by other rulinga by the Licensing Board -- the result of a basic disagreement of the Licensing Board with the holding and philosophy of Douglas Point. For example, another contention in this proceeding involves an aspect of the anticipated transient without scram (ATWS) controversy. See LBP-81-24, 14 NRC at 219-21.
Applicants had argued that the proposed ATWS rulemaking served to exclude the contention under the authority of Douglas Point.1SI In rejecting Applicants' argument, the Licensing Board acknowledged the ongoing rulemaking proceeding, but decided to litigate the issue nonetheless. Among other reasons for its decision, the Licensing Board stated that its " effort to assemble and analyze facts (regarding ATWS) in an adjudica-tory setting will be helpful to the Commission whether the ultimate decision is made in an adjudicatory context or through rulemaking." Memorandum and Order (Concerning Motion to Dismiss ATWS Contention), dated January 6, 1982, at 4. This completely misperceives the proper function of licensing boards, which is not to assist the Commission in its policy making functions, .
but to apply NRC regulations and Commission and Appeal Board authority to the facts of a particular license proceeding.
The Licensing Board's reluctance to follow an explicit i
l Appeal Board directive cannot be condoned. As aptly put by the l
10/ See Applicants' Motion to Dismiss ATWS Contention, dated December 9, 1981.
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[. Appeal Bocrd in its recent cdmonition of another licensing l
l board that had not found the prevailing appellate authority to t <
l its liking:
[T]he Licensing Board's obligation was patent: it was duty bound to carry our
, instructions so long as they were not countermanded by our own superior tribunal--the Commission. It matters not whether that Board thought those instruc-tions to be legally infirm . . . .
-Licensing boards--in commom with trial courts--have not been given the function of passing their own judgment on the soundness or propriety of the rulings and instruc-tions of a reviewing appellate tribunal,
' let alone the power, in effect, to nullify i
them if not tc the boards' liking. Indeed, to sanction ~the attitude manifest in the statement of the Board below . . . would substitute chaos for order in this Commission's adjudicatory process.
South Carolina Electric and Gas Co. (Virgil G. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC , slip op. at 18 (Dec. 14, 1981).
Under the authority of Douglas Point, as applied in Rancho Seco, Sunflower's motion to resubmit must be denied.
To The Extent That Hydrogen Control Can Be Litigated,<
The Licensing Board Is Bound By TMI-l It is Applicants' position that in light of the recent Commission rulemaking proceedings regarding hydrogen control, jhydrogen control contentions cannot be litigated in license proceedings. However, to the extent that hydrogen control can be litigated at all, it can only be litigated pursuant to the standards of TMI-1.
In TMI-1, the Commission permitted the litigation of a hydrogen control contention under 10 C.F.R. Part 100, but only "if it is determined that there is a credible loss-of-coolant scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiation doses in excess of Part 100 guidelines values." TMI-1, 11 NRC at 675.11/ The prerequisite that intervenors show a credible loss-of-coolant accident goes to the core of the TMI-l holding.
Without such a demonstration, the quantity and rate of hydrogen production cannot be determined, and without a given quantity and rate of hydrogen production, the ability of the hydrogen control system to prevent containment breach or leaking leading to offsite radiation doses cannot be litigated. In other words, unless strictly held to the requirements of TMI-1, intervenors would be free to litigate virtually any aspect of hydrogen control--in effect, suspending 10 C.F.R. F 50.44 for purposes of litigating hydrogen control in license proceedings.
The Commission in TMI-1 expressly rejected the proposition that 10 C.F.R. S 50.44 be opened up to such challenges, and the Licensing Board is not free to substitute its judgment as to I the wisdom of the Commission'c ruling.
11/ Although the Commission in TMI-l indicated its intention I to engage in a broad rulemaking proceeding on degraded core conditions, the proposed rule had not yet been issued. The l Commission now has promulgated specific proposed rules on i hydrogen control for Mark III BWR's. See page 7, supra.
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. As diccussed earlier, the Licensing Board in its Special Prehearing Conference Memorandum and Order of July 28, 1981, indicated its dissatisf action with the holding of TMI-1.
Citing with apparent approval Commissioner Gilinsky's dissent-ing opinion in McGuire, CLI-81-15, 14 NRC at 5-11', the Licensing Board nonetheless reluctantly found that TMI-1 "is still law and that we are ' forced to act in blinders.'"
LBP-81-24, 14 NRC at 208; see page 4, supra. That reluctance to part with Commission authority now has been shed by the Licensing Board in its March 3rd Memorandum and Order, in which it finds that TMI-1 has been undermined by "recent Commission utterances . . . inconsistent with the TMI decision."
Memorandum and Order, at 8. Characterizing the TMI-l standard for litigating hydrogen control as "the Commission's former criteria for admission," the Licensing Board offers its own opinion on how hydrogen control should be litigated.
It seems to us that little purpose would be served by litigating the likelihood that any one of the suggested scenarios (each one of which includes a mechanism by which the reactor would experience a failure of the core cooling system) could occur.
There is little doubt that any one sce-l nario, except perhaps for the occurrence of l human error, would be highly unlikely to l occur. However, we could embark on an endless search for multiple, unlikely events unless we assay that tortuous path in advance and refuse to enter.
l Memorandum and Order, at 11.
l l As support for its conclusion that TMI-1 is no longer law, the Licensing Board cites the Commission's recently proposed
rule regarding hydrogen control for Mark III BWR's, in which the Commission states that additional hydrogen control protec-tion will be required and that control methods not involving burning provide protection for a wider spectrum of accidents.
See Memorandum and Order, at 7-8. Without explanation, the Licensing Board also cites the Commission's Proposed Policy Statement On Safety Goals For Nuclear Power Plants, 46 Fed. Reg. 7023 (February 17, 1982), in which the Commission reaffirms its recognition of the "importance of mitigating the consequences of a core-melt accident." See Memorandum and Order, at 8.
The Licensing Board's reliance on the Commission's recently proposed rule regarding Mark III BWR's, see page 7, supra, cannot withstand scrutiny. The Licensing Board appears to assume that whenever the Commission indicates its intention to revise an NRC regulation, the subject matter of that regulation may be litigated in license proceedings. Nothing l
could be further from established NRC law. Not only does such a construction run directly counter to Douglas Point, discussed I above, but it seemingly would deprive any NRC regulation of its .
binding authority once the Commission has indicated its intention to amend or otherwise review the regulation.
j Considering the many NRC regulations that are revised by the Commission each year, the result of such a policy on the license process would be chaotic. Moreover, despite the 1
l Licensing Board's misconceptions regarding its role in the rulemaking process, licensing boards have not yet been given 1
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the authority to implement their expectations of the Commission's resolution of a rulemaking proceeding.
Whatever the merits of the Licensing Board's analysis regarding the continued vitality of the TMI-1 holding, the Licensing Board cannot have it both ways in applying the Commission's recent rulemaking on hydrogen control for Mark III BWR's. It cannot cite the rulemaking as a basis for refusing to follow TMI-1, and, at the same time, ignore the preclusive effect of the rulemaking under Douglas Point. Either the pending rulemaking impacts this license proceeding or it does not: if it does impact, then it operates to bar litigation under Douglas Point; if it does not impact, then TMI-1 remains controlling Commission authority with which Sunflower has failed to comply. Either way, Sunflower's hydrogen control contention is inadmissible.
By holding that TMI-l is no longer NRC law, the Licensing Board has accomplished what the Commission denied intervenors in TMI-1--a suspension of 10 C.F.R. S 50.44 for purposes of litigating hydrogen control in license proceedings. A licens-ing board is not free to suspend or otherwise litigate the validity of a NRC rule or regulation. If a licensing board concludes that "special circumstances" require the-waiver of a NRC rule or regulation, it is not permitted to make that decision on its own, but is required to certify the matter directly to the Commission. 10 C.F.R. S 2.758.12/ The 12/ It is worthwhile noting that the question of whether 10 C.F.R. S 50.44 should be waived or suspended was brought before
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Licensing Board here is not only engaging in substantivo policy making far beyond its legitimate powers, but it is doing so in complete disregard of the procedural requirement that such matters be directly certified to the Commission.
Finally, to the extent that the Licensing Board suggests that Sunflower has met the TMI-1. requirement of demonstrating a credible loss-of-coolant accident scenario, it is plain from even the most cursory review of the submitted " scenario" that Sunflower has not come close to complying with TMI-1--or, for that matter, even really tried to do so. Ind ee d , the "sce-nario" is so lacking in detail that it is impossible to determine whether it is " credible."11/
The Licensing Board Did Not Apply The Correct Legal Criteria In Ruling That Sunflower Had " Good Cause" For Its Late Filing In both the Special Prehearing Conference and the Special Prehearing Conference Memorandum and Order the Licensing Board indicated that Sunflower could seek to raise the hydrogen
[ continued) l the Commission in TMI-1 by way of 10 C.F.R. F 2.758 direct certification. CLI-80-16, 11 NRC at 674. The Commission, of course, decided that such waiver or suspension was unwarranted j
because the matter was best handled through rulemaking. Id. at l 675.
I 13/ The Licensing Board concedes the lack of credibility with Its statement that "[t] here is little doubt that any one scenario . . . would be highly unlikely to occur." Memorandum and Order, at 11. Se,e_ page 17, supra.
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control contention again at a later time. Sne page 5, supra.
The Licensing Board correctly observed, however, that Sunflower would have to meet the requirements of 10 C.F.R. F 2.714(a)(1) governing late filings of contentions. Sunflower nonetheless chose to wait over seven months after the Special Prehearing Conference before filing its motion to resubmit. In ruling that Sunflower has demonstrated " good cause" for its late filing, the Licensing Board relies on two factors--the impor-tance of the hydrogen control issue, and whether Sunflower's delay will contribute to an overall delay in issuing the operating license. Memorandum and Order, at 10-11. The Licensing Board's Memorandum and Order of March 3, 1982, not only applies incorrect legal criteria to the question of whether the late hydrogen control contention can be admitted,li/its display a fundamental misunderstanding of applicable law.
In determining whether an untimely contention is to be entertained, a licensing board must balance the following five factors:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means 14/ Although a licensing board's application of the criteria l of 10 C.F.R. S 2.714(a) is governed by the " abuse of discre-tion" standard, the legal ingredients of the analysis underly-ing the board's ultimate conclusions is subject to close appellate scrutiny. See South Carolina Electric and Gas Co.
l (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 885 (1981).
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P whereby the petitioner's interest will be protected.
(iii)The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
10 C.F.R. F 2.714(a)(1); South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1),
ALAB-642, 13 NRC 881, 885 (1981).1E/
The Licensing Board finds that Sunflower has met the " good cause" criterion because of (1) the importance of the hydrogen control contention, and (2) the fact (as the Licensing Board asserts) that the admission of the contention will not delay the license proceeding. Not only does the Licensing Board fabricate a new factor (importance of the contention) out of
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15/ The licensing board also is to consider the three factors listed in 10 C.F.R. S 2.714(d):
(1) The nature of the petitioner's right under the Act to be made a party to the proceeding.
(2( The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
whole cloth, it cests aside the well established meaning of
" good cause." " Good cause," in the context of 10 C.F.R.
S 2.714(a)(1), refers to whether petitioner can demonstrate an excuse or justification for the untimely filing. See id., 13 NRC at 887 n.5 ("Obviously, whether there is " good cause" for a late filing depends wholly upon the substantiality of the reasons assigned for not having filed at an earlier date."
[ emphasis in the original]). The Licensing Board made no determination as to whether Sunflower had a valid excuse or justification for waiting over seven months before filing its motion to resubmit. Sunflower proffered only one excuse for its untimely filing--that the Commission had failed to treat hydrogen control for Mark III BWR's as part of the final rule promulgated on December 2, 1981. But as the Licensing Board itself notod, proposed rules for Mark III BWR's were issued later that month. Memorandum and Order, at 7. The single excuse offered by Sunflower thus is wholly devoid of merit--and, for the purposes of 10 C.F.R. F 2.714(a)(1),
Sunflower has made no showing of " good cause."15! See Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-552, 10 NRC 1, 10 (1979) (burden of persuasion l 16/ It should be noted that, despite the fact that Soth Applicants and the NRC Staff devoted considera-ble attention in their briefs to Sunflower's delay in filing its motion, Sunflower's reply brief of February 26, 1982, is conspicuously silent on the existence of " good cause."
on " good cause" question rests on terdy petitioner). Whero no showing of " good cause" is made, " petitioner's demonstration on the other factors [of 10 C.F.R. S 2.714(a)(1)] must be particu-larly strong." Id., 10 NRC at 5.
The Licensing Board effectively reads the " good cause" requirement out of 10 C.F.R. S 2.714(a)(1) by failing to determine whether Sunflower has a valid excuse or justification for its delay in filing the hydrogen control contention.11! In addition, the Licensing Board relies on the "importance of the issue" for admitting the untimely contention. There is no indication whatsoever in NRC regulations or case law that tardiness somehow is more permissible when the late contention 17/ The Licensing Board's failure to apply the " good cause" factor of 10 C.F.R. S 2.714(a)(1) is not limited to the hydrogen control contention. By motion of January 8, 1982, Sunflower moved to expand the quality assurance contention. Both Applicants and the NRC Staff opposed the motion to expand, among other reasons, on the ground that Sunflower could not demonstrate " good cause" for its late filing.
Specifically, it was noted that the NRC inspection reports relied upon by Sunflower in its motion to expand were known to Sunflower before the Special '
Prehearing Conference. See " Applicants' Answer" of January 25, 1982, at 1-5; " Response of NRC Staff," of January 28, 1982, at 14-16.
The Licensing Board, in its Memorandum and Order of March 3, 1982, denied the motion to expand as "not ripe for decision." The Licensing Board, neverthe-less, held that Sunflower, merely by showing genuine issues of fact, can add new quality assurance issues to the license proceeding, irrespective of whether it can demonstrate " good cause" for its tardiness in seeking to add the new issues. Memorandum and Order, at 12.
O is important. Licensing boards are no more free to add new criteria to 10 C.F.R. S 2.714(a)(1) then they are free to disregard the rule's listed factors.18/ It being plain f r ont the undisputed facts that Sunflower has not demonstrated " good cause" for its delay in filing the hydrogen contention, the Licensing Board's admission of the untimely contention must be reversed.
Conclusion The Licensing Board's admission of Sunflower's hydrogen control contention is in contravention of NRC regulations and Commission and Appeal Board authority. The Licensing Board misunderstands its role in the license process. Its function is not to engage in policy making or to assist the Commission in rulemaking; its function is to apply NRC regulations and authority to the facts of this license proceeding. Most
~
importantly, the Licensing Board is not free to ignore NRC regulations and authority that inhibit its policy making ambitions. For the stated reasons, the Appeal Board should direct certification to it of that portion of the Memorandum 1
l 18/ The Licensing Board also appears to be under the l misapprehension that overall delay of the proceeding i is an element of " good cause". The Appeal Board has l
stated that delay and " good cause" are independent j factors to be balanced in ruling on an untimely i
filing, and related only to the extent that an j absence of " good cause" will make delay all the more crucial. See South Carolina Electric and Gas Co.
l (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642,
! 13 NRC 881, 887 n.5 (1981).
i i
l l
l t
and Order of March 3, 1982, admitting the hydrogen control
\
contention, and deny Sunflower's motion to resubmit the contention.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
Jay E. Silberg, P.C.
Robert L. Willmore Counsel for Applicants 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 March 23, 1982.
I l
l
UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION
/
Before the Atomic Safety and Licensing Board In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, et al. ) 50-441
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Motion For Directed Certification of the Licensing Board's Memorandum and Order of March 3, 1982", were served by deposit in the U. S. Mail, first class, postage prepaid, this 23rd day of March, 1982, to all those on the attached Service List.
0 Robert L. Willmore Dated: March 23, 1982.
c
UNITED STATES OF AMEN'ICA NUCLEAR REGULATORY COMMISSION -
Bsfore the Atomic Safety and Licensing Board -
i
! In the Matter of ) ,
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY Et A1.) ,
50-441
),
(Perry Nuclear Power Plant, )
Units 1 and 2) )
SERVICE ~ LIST Pat'er B. Bloch, Chairman Ms. Sue Hiatt .
Atomic Safety and Licensing Board OCRE Interim Representative ~
~
U.S. Nuclear Regulatory Commission 8275 Munson Avenue -
~
Washington, D.C. 20555 Mentor, Ohio 44060"}
Dr. Jerry R. Kline Daniel D. Wilt,, Esquire Atomic Safety and Licensing Board Wegman, Hessler & Vanderburg -
U.S. Nuclear Regulatory Commission Suite 102 Washington,,D.C. 20555 7301 Chippewa Road
~~
Brecksville, Ohio 44141 -
Mr. Frederick J. Shon Atomic Safety and Licensing Board Terry Lodge, Esquire U.S. Nuclear Regulatory Commission 915 Spitzer Building Washington, D.C. 20555' Toledo, Ohio 43604 Atomic Safety and Licensing
- Mr. Tod J. Kenney 228 South College, Apt. A Board Panel Bowling Green, Ohio 43402
, U .'S . Ruclear Regulatory Commission Washington, D.C. 20555
' Donald T. Ezzone, Esquire Atomic Safety and Licensing Assistant Prosecuting Attorney Appeal Board Panel Lake County Administration Center U.S. Nuclear Regulatory Commission 105 Center Street Painesville, Ohio 44077 Washington, D.C. 20555 Docketing and Service Sect. ion John C. Cardinal, Esquire Prosecuting Attorney Office of the Secretary Ashtabula County Courthouse U.S. Nuclear Regt.' atory Commission Jefferson, Ohio 44047 Washington, D.C. 10555 James H. Thessin, Esquire Office of the Executive Legal Director ~
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 L -