ML20049K086

Suppl to 811221 Answer Opposing Applicant Motion for Summary Disposition of Prairie Alliance Contention 5.ASLB in Perry Case Refused to Dismiss ATWS Contention.Certificate of Svc Encl

ML20049K086
Person / Time
Site:	Clinton
Issue date:	03/23/1982
From:	William P ILLINOIS, STATE OF
To:	NRC COMMISSION (OCM)
References
ISSUANCES-OL, NUDOCS 8203290392
Download: ML20049K086 (7)

Text

t . *

s. .

DQ7UID UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

3n y p j 50 IN THE MATTER OF )

ILLINOIS POWER COMPANY, )

SOYLAND POWER COOPERATIVE, INC. )

and WESTERN ILLINOIS POWER )

COOPERATIVE, INC. )

) Docket No. 50-461 OL (Operating License for Clinton ) ag[,3 Power Station, Unit 1). ) s

/

s s{g\g  ;

t -

I t ILLINOIS' SUPPLEMENTAL ANSWER - ,

')'

TO MOTIONS BY NRC STAFF AND- -

ej' T 7 :>,,w

APPLICANTS ON PRAIRIE ALLIANCE -

081 CONTENTION 5 y s:1' -s On December 21, 1981 the State of Illinois (Illinois),'d its attorney, Tyrone C. Fahner, Attorney General of the State of Illinois, filed an answer in which it opposed Applicants' motion for summary disposition of Prairie Alliance Contention 5.

It also concurred in the NRC Staff's motion to defer considera-tion of the Applicants' motion pending issuance of the Safety Evaluation Report (SER) for the Clinton Power Station, Unit 1 (CPS-1). On February 14, 1982 the NRC Staff announced the publication of the SER for CPS-1. On March 9, 1982 the Board orally granted Illinois leave to further respond to the Applicants' Motion.

Illinois stands by the arguments it made in its December 21 answer. In addition, Illinois states as follows:

1. Further support for Illinois' position that the Applicants' motion should be denied is found in the recent Licensing Board {ggS3 decision in Cleveland Electric Tlluminating Co., et al. (Perry

/ /

8203290392 820323 PDR ADOCK 05000461 Q PDR

e .

_ 2-Suclear Power Plant, Units 1 and 2) (Memorandum and Order Concerning Motion to Dismiss ATWS Contention), Jaruary 6, 1382 1 In Perry the Applicant noved to dismiss an anticiotted transient without scram (ATWS) contention for several reasons, among which was that the ATWS issue is currently subject to general rulemaking by the NRC. The Licensing Board rejected the Applicant's motion, stating, among other things, that the NRC has not explicitly barred ATWS issues from licensing proceedings. The Board then noted:

The consideration of ATWS issues is particu-larly important because the Commission has determined that ' reductions must be made in the frequency, severity, or both the frequence and severity of ATWS accidents.'

46 Fad. Reg. at 57522. Hence, this is the kind of serious safety issue which is at the core of the Board's responsibilities in deciding whether to license Perry.

Appendix A at p.

The rationale of the Perrv decision has direct application to the Applicants' motion for summary disposition of Contention 5.

Applicants have made the naked assertion that they are entitled to summary disposition as a matter of law because the ATWS issue in Contention 5 is an unresolved generic safety issue. Presumably their rationale is that the ATUS issue is applicable to reactors in general and is the subject of an ongoing attempt to find a universally applicable solution. See Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2) ,

1 1

'A copy of this opinion is ,ttached as Appendix A for the convenience of the parties.

i

l e .

.a u--'

8 NRC 245, 248 (1978). One of the obvious methods to resolve such an issue is for the NRC to resort to its broad rulemaking authority. See, e.g., Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 767(1977) . The NRC has chosen to do that for.the ATWS issue. Yet, despite the imminence of a final rule, the Perry Board has held on to its review of the ATWS issue because of its seriousness. Illinois urges the Board to deny Applicants' motion for the same reason and review Contention 5 to see what measures are necessary to protect public health and safety during the pendency of final NRC action on ATWS.

2. Illinois reiterates its argument in the December 21 answer that, even if Contention 5 contains an unresolved issue, it cannot be disregarded because of its generic applicability, Rather, Applicants must show that operation of the CPS-1 can proceed even though an overall solution has not been found.

Virginia Electric and Power Co., supra.

l 3. Alternatively, Illinois requests that the Board continue i

to defer ruling on the Applicants' motion until the NRC Staff completes its reyiew of the ATWS issue at the CPS-1. It is clear from the SER that the NRC Staff's review, particularly of the Applicants' emergency operating procedure program, is incomplete. Therefore, there is no assurance that Applicants will meet what the NRC Staff considers to be adequate interim requirements to control and mitigate ATWS events.

3 f

i

, WHEREFORE, Illinois requests the following:

1. That the Board deny Applicants' motion for summary disposition of contention 5;

2. That the Board defer consideration of Applicants' motion pending complete review of the ATWS issue by the NRC Staff; and

3. That the Board allow Illinois to file a response upon the NRC Staff's complete review of the ATWS issue.

Respectfully submitted, 7YRONE C. FAHNER httorney General State of Illinois BY:' '

'dW

. . . _ PHILIP U. WILLMAN Assistant Attorney General Environmental Control Division 188 West-Randolph Street Suite.2315 Chicago, Illinois 60601 (312) 793-2491 DATED: March 23, 1982 l

l r

I l

. -: y ..y, APPENDIX A e .

• u oc,r:m.Er

~

_' '82 Jul-6 P2:17

- UNITED STATES OF MERICA NUCLEAR REGULATORY COMMISSION '?.51.7.s? :' - f

....._ a .n.

' ' ' ' ~ "

ATOMIC SAFETY AfiD LICENSING E0ARD Before Administrative Judges: '

O!D 01.022 Peter B. Bloch, Chairman Or. Jerry R. Kline b--- s E

Mr. Frederick J. Shen jg ,,gy,:y,g

y

. In the Matter of Docket Nos._50.tN0-01.lAR 7 3 0 M 1 . 4 c:.: ,., 13 3 2-y CLE'/ ELAND ELECTRIC ILLUMINATING '1

'i

.- COMPANY, --

et al. -

D. Li?E.asdd~d NC

//> .

(Perry Nuclear Power Plant, Units -1 t, 2) January 6, Ys (\

.===..-... ~ __ m MEMORANDUM AND ORDER

, (Concerning Motion to Dismiss. ATWS Contention)

J Applicant seeks to dismiss Issue #6, t.he anticipated transient without scram (ATWS) contention. (Motion of December 9, 1981.) That issue states:

Applicant should instali an automated standby liquid control system i

to mitigate the consequences of an anticipated transient with'out scram.

( An anticipated transient without scram- occurs in -a power reactor when-a --

-==.

1. ferseeable problem is so severe that control rods should be inserted in the reactor core to slow the reaction but insertion fails to occur. An automated standby liquid control system automatically puts a' reactivity " poison", such I'

i as baron, into the reactor coolant in order to slow the, reaction.)

Applicant claims that the ATWS issue should be dismissed because of proposed rulemaking on ATWS issued on November 24, 1981. It argues that Boards should not accept contentions that are the subject of general rulemaking by the Commission. Potomac Electric Power Company (Doualas Point

(

D5.r 0)

32011100M orp-nUUU^

[gh b [

l PDR

ATMS Dismissal: 2 Nuclear Generatina Station, Units 1 and 2), ALAS-218, 8 AEC 79, 85 (1974) .

However, the regulatory staff of the Ccmmission (staff) disagrees with this interpretation of Douolas Point and rejects applicant's arguments for.

dismiss al .

1 APPLICC'7' S ARGUMENTS Applicant argues that the Douglas Point principle is especially germane here, where consideration of the same issue in this proceeding that is being considered in a general rulemaking proceeding would be administrative 1y inefficient and counterproduc-p@ tive. No purpose would be served in having this Licensing Board determine whether or not Applicants should install an automated standby liquid control system when that very question will be determined generically by the Commission in a rulemaking proceeding.

Applicant's Brief of August 11, 1981.

~

Dismissal is sought by Applicant for two additional reasons. . First, that the " supplementary information" accompanying the proposed rule .

. has findings supporting the continued operation of reactors during the cendency of the rulemaking. Applicant argues that if plants may continue to ,

operate during the pendency of rulemaking that it necessarily follows that a plant that will not commercially operate for two and a half years does not require design modifications prior to the completion of the rulemaking.

Applicant's motion at 3-4.

Second, applicant argues that two of the proposed ATWS rules deal explicitly with automated standby liquid control systems (SLCS) and that it would be unnecessary and counterproductive to litigate these same issues in this case. Applicant considers it particularly unproductive because of the possibility that the Board would reach a different conclusion from that reached in the parallel rulemaking proceeding. .

e

/ .

j ATWS Dismissal: 3 -

.a 1I STAFF'S ARGUMENTS '

Staff distinguishes the Doualas Point case on the ground that it dealt with uranium fuel cycle issues which were beyond the reach of Cemnission regulations, particularly Appendix 0 to Part 50. Vermont Yankee Nuclear Power Corocration (Vermont Yankee Nuclear. Power Station) ALAB-56, 4 AEC 930 (1972); Lona Island Liahtina Company (Shoreham Nuclear Power Station! ALAB-99, 6 AEC~ 53 (1973). By contrast, staff fince that 10 CFR Part 50, Appendix A and the Standard Review Plan (NUREG-0800, 15.8) set .

forth several ATWS-related general design criteria (Criteria 10, 15, 25, 27 and 29) and that the mitigation or control of ATWS events currently falls within the ambit of the regulations.

Staff also indicates that the supplementary information published with the pr6 posed ATWS rule does not provide a reason for suspending the application of existing Commission rules, including the applicable general design criteria. Furthermore, staff does not consider the language in the supplementary information to constitute an explicit direction to the Board not to address ATWS issues in ongoing proceedings.

III CONCLUSIONS We are convinced that there are even more. significant differences between this proceeding and Douglas Point than have been argued to us by staff. Consequently, the motion to dismiss shall be denied.

First, we are persuaded that the Commission's existing regulations, contained in Appendix A to Part 50, survive the issuance of a proposed rule.

Nothing in the supplementary information indicates that the existing regulations relating to ATWS are to be suspended. (Nor is there any reason to think that the issuance of a proposed rule should freeze current thinking Y

e

.j -

/ ATWS Dismissal: 4 i /

about the interpretati.on of judgmental standards contained in the rules.) ,

f Second, whether or not Perry should~have an automated stan control system is f ar more specific to Perry than nuclear waste dispos 2 ever was to any particular plant.

t Perry is one of the-first General -

' Electric BWR/6 reactors with a Mark III~ containment tonseapply for a li -

and an arpropriate decision about an SLCS for Perry requires detailed knowledge of its characteristics.

Hence, specific knowledge of this particular plant is required both for an adjudicatory determination n or-

'a d f issuance of a reasoned rule affecting Perry.

by nature specific. 'In this sense, this issue is Although the requirement of an SLCS can be treated by rulemak ,

i our effort to assemble and analyze facts in an adjudicatory e setting will helpful. to the Comission whether the ultimate decision an is made in

,adjuciatory context or through rulemaking.

Unlike fuel disposal issues, '

which are largely industry-wide and dependent on overall , the SLCS policies j

issue has many asp'ects specific to Perry and different '

s that from SLCS is might be raised with respect to different power reactors. .

Third, the Commission has suggested a variety of approaches in it proposed rules. .

Under the first proposed rule, if enacted, an SLCS would be required unless the Board determined that "an operator quate would have ade information and would reasonably be expected within a a e to the time av il bl take the proper corrective action." Proposed 57525. 50.60(b)(3), 46 Fed. Reg. at i Hence, even if this rule were adopted, Board efforts to resol ve this .

issue are likely to contribute to reaching an appropriate result .

Fourth, the Conmission has not explicitly barred ATWS rm issues f o proceedings, and we are reluctant to infer that they were barred. o be intended t The supplementary material issued with the proposed ae. rule doe .

O

,/

/

7

/ ATWS Dismissal: 5 , ....

A that "there is reasonable assurance of safety for continued coeration until imolementation of a rule is complete." [Emonasis added.] 46 Fed. Reg. at 57523. However, the Commission did not advise Boards, as it did in the solid waste disposal rulemaking, to discontinue their consideration of ATWS issues during the pendency of the rulemaking. Therefore, we continue to be controlled by the procedural rules which require us to adjudicate contentions that have been found to be admissible in the proceeding.

The consideration of ATWS issues is particularly important because the Commission has determined that " reductions must be made in the

() frequency, severity, or both the frequency and severity of ATWS accidents."

46 Fed. Reg. at 57522. Hence, this is the kind of serious safety issue which is at the core of tIhe Board's responsibilities in deciding whether to license Perry. .

ORDER ,

For all the foregoing reasons and based upon consideration of the entire record in this matter, it is this 6th day of January,1982

~

ORDERED Cleveland Electric Illuminating Co., et al.'s motion to dismiss Issue !6, relating to the use of an automated standby liquid control system

..3 to mitigate an anticipated transient without scram (ATWS), is denied.

O O

a /

/

/

/ ATWS Dismissal: 6 FOR THE ATOMIC SAFETY AND LICENSING BOARC y (B.iW Pcter s. Blocn, Chairman ADMINISTRATIVE JUDGE

% f// ~

J U A q /\// M

//r. JerryIR. Kline

%DMINI TRATIVE JUDGE h

h Frederick J. Sn 'n h ADMINISTRATIVE JUCGE Bethesda, Maryland ,

I.

O l

l l

m

• 1 UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

ILLINOIS POWER COMPANY, )

SOYLAND POWER COOPERATIVE, INC. )

and WESTERN ILLINOIS POWER )

COOPERATIVE, INC. )

) Docket No. 50-461 OL (Operating License for Clinton )

Power S'ation, t Unit 1). )

NOTICE TO: Hugn K. Clark, Esq., Chairman P.O. Box 127A Kennedyville, Maryland 21645 Dr. George A. Ferguson School of Engineering Howard University 2300 Sixth Street, N.W.

Washington, D.C. 20059 Dr. Oscar H. Paris Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard J. Goddard Office of the Executive Legal Director United States Nuclear Regulatory Commission Washington, D.C. 20555 Sheldon A. Zabel Schiff, Hardin, & Waite 7200 Sears Tower l

233 South Wacker Drive Chicago, Illinois 60606 j Jan L. Kodner

^

Tutt & Kodner 173 West Madison Suite 1004

Chicago, Illinois 60602 l

t

Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 PLEASE TAKE NOTICE that today I have caused to be filed with the Secretary, United States Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Chief, Docketing and Service Section, one original and two conformed copies of Illinois' Supplemental Answer To Motions By NRC Staff And Applicants On Prairie Alliance Contention 5. A copy of this document is attached and served upon you.

Respectfully submitted, TYRONE C. FAHNER Attorney General State of Illinois BY: '

PHILIP L.#WILLMAN Assistant Attorney General Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 (312) 793-2491 DATED: March 23, 1982

l UNITED STATES OF-AMERICA' NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

ILLINOIS POWER COMPANY, )

SOYLAND POWER COOPERATIVE, INC. )

and WESTERN ILLINOIS POWER )

COOPERATIVE, INC. )

) Docket No. 50-461 OL (Operating License for Clinton )

Power Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby cer tify that I served copies of Illinois' Supplemental Answer To Motions By NRC Staff And Applicants On Prairie Alliance Contention 5 on the persons listed on the attached Notice by causing them to be deposited in the United States mail, first class, postage prepaid, on this 23rd day of March, 1982.

.h PHIJLIP L. WILLMAN s