ML20052D830

Motion for Reconsideration of ASLB 820422 Memorandum & Order Part II Denying Decade Motion to Compel Response to Embrittlement Interrogatories.Certificate of Svc Encl

ML20052D830
Person / Time
Site:	Point Beach
Issue date:	05/03/1982
From:	Patricia Anderson WISCONSIN'S ENVIRONMENTAL DECADE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8205070256
Download: ML20052D830 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

& fore the Atomic Safety and Licensing Board w

f Wisconsin Electric Power Company POINT BEACH NUCLEAR PLANT UNITS i & 2 Y a DOCKET NOS. 50-266 AND 50-301 #

Operating License Amendment ($ I (Steam Generator Tube Sleeving Program)  ; d DECADE'S MOTION FOR RECONSIDERATION OF BOARD D' g MEMORANDUM AND ORDER CONCERNING MOTION TO COMPE

% . a cc Wisconsin's Environmental Decade, Inc. (" Decade") , hereby moves the Atomic Safety and Licensing Boar d (" Board") in the above-captioned matter for reconsideration of Part II(Embrittlement Interrogatories) of its Memorandum and Order Concerning a Motion to Compel, entered April 2 2, 19 8 2 ("Ord e r") ,

in order to:

(1) Compel the Licensee to answer Decade's interrogatories concerning. c.r.brittlement; or, in the alternative,  ;

(2) Devise its own m9ans of insuring that the embrittlement issue is address'ed in a timely fashion.

This motion is made on the grounds set forth below.

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The Licensee had objected to answering the interrogatories based upon an argument that embrittlement is unrelated to sleeving.M In rebuttal, the Decade had asserted that potential 4

actions taken to ameliorate embrittlement could mean that an otnerwise minor impairment of safety functions from defective ,

sleeves would become a matter of major significance.

The Board in its Order has sustained the Licensee's .

objection, but not on the grounds maintained by the utility. I Indeed, b for the purpose of enforcing discovery, the Board 2 recognizes that there is a nexus between e:abrit tlemen t and f sleeving to establish relevance, bmt nonetheless denies ^

enforcement of discovery for this reason:

"However, our review of Decade's filings fails to discover any showing of how the sleeving program would cause problems in the reactor pressure vessel or how discovery of informtion about- embrittlement, or steps to remedy embrittlement, would lead in any way to information reflecit ,

unfavorably on the safety of sleeving. Indeed, Decade seems  ;;

to have things somewhat reversed. It seems is to be arguing $

that if the sleeving program would weaken steam generator =

tubes then reactor vessel problems of enbrittlement and thermal 5 dangerous.shock would make this weakend[ sic] condition @

tubes wouldItcause also argues specialthat a failure problems at ofPoint steam generator Beach if the 5 reactor core should be reconfigured in embrittlement problems, thereby increasing the cooling response to ME es requirements coolant accident.in the center of the core during a loss of ggg

[ Emphasis in textl i=Id E

E "For the purpose of analyzing the relevance of these .E arguments, let us assume that Decade can prove its uderlying premise, 5 sleeving and that steam would be generator dangerous.tubes would be weakened by G If Decade demonstrates the truth of that premise, then it will have drawn the tube Es sleeving project into serious question. However, the gig

.=5 validity of Decade's case depends on its proving that tube weakening may occur and does not depend on whether the FF reactor vessel is embrittled. Evidence of embrittlement .E5 would not contribute to the proof that sleeving weakened the _%

tubes and is therefore dangerous. EE; vessel .is embrittled would hg unnecessarv Further oroof icing thatcake.

an j;he ihm =

unessential in obtaining relief f rom .g sleeving project that =

had been shown in he unsafe." [ Emphasis added] =

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Order, at p. 4.

If our understanding of the Order is correct, the Board is stating that the ultimate issue in this case is whether sleeving is safe or unsafe. Compounding problems arising out of

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embrittlement do not bear on this question because they would only make an already unsafe condition more unsafe,- in the view of the Board.

That statement of the issue, we believe, does not comport with the law established by Commission to govern these j1 i

proceedings.  ;

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Rightly or wrongly, a license amendment such as this one is i e

controlled by 10 C.F.R.

S50.57 (a) (3) , which states that the Board shall find that:

"There is a rgangnnk11 Azzurangs activities authorized by the operating licensethat can the (i) be conducted without endangering the health and safety of the $

public, and (ii) that such activities will be conducted in 3 compliance with the regulations in this chapter."

added] [ Emphasis a

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This formulation of the issue has apparently been accepted by the Board on another occasion. Transcript p. 164.

Thus, the question of safety is n21 treated by the WS y

Commission as some kind of light switch that is either on or off,  !

but rather as a matter of degree; and this undermines the Board's is 3

logic for denying enforcement of discovery in this regard. $

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!!5 For the way that this process has evinced itself in the case of Point Beach is as an imputed analysis of probabilities. In an }M is M

carlier phase of this docket arising out of Decade's November 13,

]C 1979 S2.206 petition, the Staf f rejected our safety concerns by $

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en analysis that implicitly utilized such a relative process. E

i First, the Staf f postulated that the secondary-to primary in-leakage during a loss-of-coolant-accident ("LOCA") would have to exceed 1300 gallons per minute to result in unacceptable steam binding. Second, it made an estimate of the in-leakage f rom a _

i ruptured tube within the tubesheet and in the freestanding region l

of the steam generator, which was 7 gallons per minute and 27 gallons per minute, respectively. This implied the necessity-for

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185 ruptures in the tubesheet or 48 above to stall reflood. It then evaluated such a leak rate against the number of tube '

f ailures thet, in its view, could be expected during a LOCA in

.the absense si sleeve induced failures and concluded that there l

was not " undue" risk. Safety Evaluation Report Related to Point 4

Beach Unit 1 Steam Generator Tube Degradation Due to Deep Crevice

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Corrosion, dated November 30,1979, at pp. 20 to 21 and Appendix A. Public Meeting of the Nuclear Regulatory Commission on -

Briefing on Point Beach 2.206 Petition, November 28, 1979, at Transcript p. 15.M When this case reaches the merits, the Board will be asked by the Staff and Licensee to undertake the same type of relative review. In perf orming that kind of analysis, the Board will, i illustratively, be asked to weigh its conclusion as to the

probabi.Lity. of sleeve induced in-leakage during LOCAU against f

that alleged 1300 gallons per minute threshhold of concern for  !

steam binding. l But--and this is the critical point--the validity of that j 6

1300 number may be significantly affected by reconfiguration of i i

l the core to ameliorate embrittlement because a higher resultant  !

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heat flux in the center of the core may increase cooling requirements, making less in-leakage lower than 1300 gallons per minute fatal for steam binding.

If discovery or subsequent cross-examination of these questions is not permitted, then the Decade will be deprived of its legal right to adduce countervailing evidence. 5 U.S.C.

S554. Ohio Bell Tel. A L. P.U.c. (193 6) , 3 01 U.S. 2 9 2.

Therefore, Decade's motion to compel the Licensee to answer its embrittlement interrogatories should be granted.

In the alternative, in the event the Board, on reconsideration, still determines to deny the motion to compel, it should, i t.self, undertake whatever ef forts are necessary to find a proper and tingly vehicle for investigating the i

core reconfiguration issues. Naive though it may sound in the rarified atnosphere of "H" Street, we firmly believe that every professional employee of the Commission has a solemn obligation to act to prevent a nuclear accident, and, if the present organizational parameters limit such action, that employee is obligated to pursue all proper avenues to correct those limits.

The Commission has already been called on the carpd by its l I

own members f or abusing procedural circumlocutions, not in the pursuit of an orderly process, but rather as a deliberate expedient of evading its responsibilities:

"One need not have high expectations about the contribution that a hearing might make to the safety of the ,

plant in any given case to be distrersed about the levels of '

illusion involved in the Nuclear Regulatory Commission's application of its recent Harble Hill decision to this and to f uture cases. * * *

" * *

• The agency so misstates history that it is clearly either incapable of giving an accurate account of its own past doings or else its legal positions are being

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chosen after the desired result (in this case no meaningful opportunity for hearing) has been decided. ,

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• The hearing being offered as a matter of right i pursuant to Harble Hill is a sham. Petitioners are not permitted to contest the issue that concerns them most, namely the suf ficiency of the NRC's action as against the claimed need for other remedies. In short, the Commission has constructed a test that grants a meaningf ul right to a hearing in cases of this sort only to the utility or another party which may assert that the order goes too far. Anyone else seeking to argue the sufficiency of an NRC imposed remedy must prove that the remedy has made the f acility less safe than it had been. Thus, the public'c opportuntiy to be heard when dangerous conditions are shown to exist at a plant can be foreclosed by a staff action resulting in a minimal improvement in safety. * * *

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• Most unfortunate of all is the way in which the Commission's pell mell retreat from meaningful public inquiry in the twistings between here and Harble 3131 suggests to the staff and the outside world that the agency is run by people living in f ear of their own citizenry. In the wake of the Kemeny and Rogovin Reports' caling for more effective public involvement, the Commission responds with a hearing offer that is a transparent sham."

Order of the Commission Concerning Request for Hearing, Docket 50-266, entered May 12, 1980, at pp.1 to 3(Dissenting Opinion of Commissioners Bradford and Gilinsky. [ Citations omitted]

Please remember, too, that the Commission's own independently commissioned investigation found that there was a mindset in the agency that accidents do not happen. Special Inquiry Group, Three Mile Island (1980), at p. 90.

To the rest of the world, the accident which did occur at Three Mile Island Nuclear Plant on March 28, 1979, demolished any rational basis for such complacency. Yet, the continuation of an attitude in which critical safety questions are ignored and not even considered because of meaningless legalisms can only convince the public that the agency is unfit to perform the responsibilities assigned to it.

,. 6 DATED at Madison, Wisconsin, this 3rd day of May, 1982.

WISCO EIN'S , ENVIRONMENTAL DECADE, INC.

by (, ,) .

PETER ANDERSON l

Director of Public Affairs 114 North Carroll Street Madison, Wisconsin 53703 (608) 251-7020 Footnotes 1 The Licensee argued as a second defense that the Board had previously disposed of this matter adversely to the Decade.

The Board also rejected this defense. Order, at p. 3.

2 Permission to cite the public meeting transcript is requested because the refusal of the Commission to grant a hearing on which a record could be made deprives the Decade of .any other way to establish the Staff's prior positions.

3 The possibility of concluding that sleeves can increase the risk of tube f ailure cannot be ignored. See, f or example, recent reports of leaking sleeves at San Onofre Nuclear Plant. Office of Nuclear Reactor Regulation, ltAEK Af Interest, Week Ending March 26, 1982.

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, .-r (HI'IED S'IATES OF 12 ERICA '-

NirTFAR REGUIAIGE CDtHISSION

=co eny _e: mn /R Wisconsin Electnc Poer Ompany g POINT BEACH NTPTFAR FIAT UNIIS 1 & 2 cc. s c. .:--- I Ibcket Nos. 50-266 and 50-301 02 2i_t .3 ,4 N, v...Ci

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I certify that true and correct cocies of the foregoing docunent will  !

be served this day by depositing copies of the same in the first class nn1.ls, 3 postage pre-pairl and cnrrectly ah% to the folkwing: ,f J

Peter B. Bloch, Chairman Istomic Safety & T 1rvmsing Board U. S. Nuclear Pegulatory Camuscion Washington, D. C. 20555 Dr. Hugh C. Paxton ,

1229 -41st Street Ios Alamos, New Ibxico 87544 ,

Dr. Jerry R. Kline -

Atatuc Safety & T irvmsing Board U. S. Nuclear Begulatory Camission Nashington, D. C. 20355 Ibcketing & Service U. S. Nuclear Ibgulatory Ctxmu.ssion .

Washingtcn, D. C. 20555 Mr. Richard Bachmann Office of Executive Icgal Director U. S. Nucloar Begulatory Comnission Washingtcn, D. C. 20555 1

Mr. Bruce W. Churchill l Shaw Pittman Potts and Towbridge i 1800 M. Street N.W. l Washington, D. C. 20036 j s

Barton Cowan 42nd Floor 600 Grant Street g Pittsburgn, PA 15219 ') g

&h. ' c Carol Pfeffcirbrg I

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