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Response Opposing Applicant 820323 Motion for Directed Certification of ASLB 820303 Order.Aslb Ruling on Hydrogen Control Issue Does Not Affect Basic Structure of Proceeding in Pervasive or Unusual Manner.Certificate of Svc Encl
	ML20054C137
Person / Time
Site:	Perry
Issue date:	04/16/1982
From:	Thessin J; NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	; NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
	ISSUANCES-OL, NUDOCS 8204200113
	Download: ML20054C137 (37)
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 7,')

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CLEVELAND ELECTRIC ILLUMINATING Docket Nos. 50-440 OL COMPANY, ET AL.

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50-441 OL

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(Perry Nuclear Power Plant,

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Units 1 and 2)

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RESPONSE OF NRC STAFF TO APPLICANTS' MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD ORDER OF MARCH 3, 1982 t

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James 11. Thessin Counsel for NRC Staff s

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Dated: April 16, 1982

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

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CLEVELAND ELECTRIC ILLUMINATING

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Docket Nos. 50-440 OL e

COMPANY, ET AL.

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50-441 OL

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(Perry Nuc' ear Power Plant,

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Units 1 and 2)

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i RESPONSE OF NRC STAFF TO APPLICANTS' MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD ORDER OF MARCH 3, 1982 l

't James H. Thessin j

Counsel for NRC 5*.aff Dated: April 16, 1982 l

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1 TABLE OF CONTENTS PAGE Table of Citations....................................

ii I.

Introduction..........................................

1 II.

Background............................................

2 III.

Discussion............................................

6 A.

The Requirements For Di rected Certifica tion......................

6 B.

The Applicants Misstate The Effect of Pending Rulemaking On The Admissibility of Contentions.........

8 C.

The Licensing Board's Errors Do Not Reach The Level Warranting A Motion For Directed Certification.........

22 D.

The Licensing Board's Conclusion That The Late-File Hydrogen Control Contention ftet The Standards

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of % 2.714(a) -- Even If Incorrect

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-- Does Not Justify A Motion For Directed Certification......................

26 IV. Conclusion..................................'.........

28

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. TABLE OF CITATIONS Page NRC CASES Cleveland Electric Illuminating Company, (Perry Nuclear PowerPlant, Units 1and2),LBP-81-24,14NRC175(1981)..

3 Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-382, 5 NRC 603 (1977).................................

6 Duke Power Company (William B. McGuire, Units 1 and 2)

CLI-81-15, 14 NRC 1 (1981).................................

20 Duke Power Company (William B. McGuire, Units 1 and 2),

ALAB-669, 15 NRC (March 30,1982)...................

16, 19, 20, 21 Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309 (1981) 6 Long Island Lighting Company (Shoreham Nuclear Power Station), ALAB-99, 6 AEC 53 (1973).........................

12 Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6AEC 1003',1010 (1973) remanded for elaboration, CLI-74-002, 7AEC 2(1974), further state-

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ment of Appeal Board views, ALAB-175, 7AEC 62 (1974),

affirmed sub nom. Citizens for Safe Power v. NRC 524 F2d 12 91 ( D. C. C i r. 19 7 5 ).......................................

10 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), CLI-80-16, 11 NRC 674 (1980).........

2, 15, 17, 18 l

Nuclear Fuel Services (West Valley Reprocessing Plant),

CLI-75-4, 1 NRC 273 (1975).................................

26 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5,13 NRC 361 (1981)...

11 Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317 (1980).............................................

18 l

l Potomac Electric Power Company (Douglas Point Nuclear

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Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974).....................................................

8, 12, 14 Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277,1 NRC 539 (1975).....................................................

10 l

l

-iii-Page Project Management Corporation Tennessee Valley Authorit (Clinch River Breeder Reactor Plant), ALAB-326, 3 NR (1976).....................................................

27 Public Service Company of Indiana (Marble Hill Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977).......

2, 6, 25 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977)..................

10 Public Services Electric and Gas Co. (Salem Nuclear Generating Station, Uait 1), ALAB-588, 11NRC533(1980)..........................................

6 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799 (1981)...........

8, 16 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-81-12,13 NRC 557 (1981)..........

15 South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC (December 14,1981)........................................

6 South Carolina Electric and Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981)......

27 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-56, 4 AEC 930 (1972)..........

12

.I Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station, ALAB-73, 5 AEC 297 (1972)...........

12 STATUTES Atomic Energy Act of 1954, as amended, 42 U.S.C.

5 2235 et.

seq.............................................

10 National Environmental Policy Act of 1969, 4332 et. seg...

12 REGULATIONS 10 C.F.R. Q 2.714..........................................

10 10 C.F.R.'s 2.714(a).......................................

8, 26, 27 10 C.F.R. 5 2.718(i).......................................

1, 6

-iv-Page 10 C.F.R. 6 2.758..........................................

11, 17 10 C.F.R. 5 2.785(b)(1)....................................

1, 6 10 C.F.R. 50.44..........................................

3, 5, 17 18, 21, 22, 23 10 C.F.R. 6 50.46(c)(1)....................................

3 1

10 C.F.R. 9 50.57(a)(1)-(a)(3).............................

10 10 C.F.R. Part 100.........................................

5, 17, 18, 22 OTHER Notice of Proposed Rulemaking, " Environmental Effects of The Uranium Fuel Cycles", 37 Fed. Reg. 24191 (November 15,1972)........................................

13 Notice of Proposed Rulemaking, " Storage and Disposal of j

Nuclear Waste", 44 Fed. Reg. 61372 (October 25,1979)......

11 Proposed Rule, " Interim Requirements Related to Hydrogen

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Control and Certain Degraded Core Considerations",

45 Fed. Reg. 65466 (October 2, 1980).......................

3, 19, 25 Advance Notice of Proposed Rulemaking, " Consideration of Degraded or Melted Cores in Safety Regulation", 45 Fed. Reg. 65474 (October 2, 1980)....................................

19 Statement of Policy, "Further Commission Guidelines for Power Reactor Operating Licenses", CLI-80-42,12 NRC 654 (December 18,1980)........................................

11 Final Rule, " Interim Requirements Related to Hydrogen Control", 46 Fed. Reg. 58484 (December 2,1981)............

18, 19, 22 1

Proposed Rule, " Interim Requirements Related to Hydrogen i

i Control", 46 Fed. Reg. 62281 (December 23,1981)...........

19, 25 Final Rule, " Licensing Requirements for Pending Construction Plant and Manufacturing License Applicants", 47 Fed. Reg.

I 2286 (January 15,1982)....................................

11 Proposed Policy Statement on Safety Goals for Nuclear Power Plants, 46 Fed. Reg. 7023 (February 17,1982)..............

22

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04/16/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

CLEVELAND ELECTRIC ILLUMINATING

)

Docket Nos. 50-440 OL COMPANY, ET AL.

)

50-441 OL

)

(Perry Nuclear Power Plant,

)

Units 1 and 2)

)

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RESPONSE OF NRC STAFF TO APPLICANTS' MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD ORDER OF MARCH 3, 1982 I.

INTRODUCTION the Applicants 1/ or a license to operate the On March 23, 1982, f

2 Perry nuclear power plant filed a motion / with the Appeal Board for directed certification of a March 3,1982 Order / of the presiding 3

Atomic Safety and Licensing Board.(" Licensing Board"). Applicants in their motion requested that the Appeal Board, pursuant to 10 C.F.R.

i 55 2.718(1) and 2.785(b)(1), certify to it for immediate review the Licensing Board's March 3 Order and reverse that portion of the Order admitting a hydrogen control contention submitted by the Intervenor i

-1/

Cleveland Electric Illuminating Company, Dusquesne Light Company.

Ohio Edison Company, Pennsylvania Power Company and the Toledo Edison Company.

-2/

Motion for Directed Certification of the Licensing Board's Memorandum and Order of March 3,1982, dated March.23,1982 (" Motion for Directed Certification").

-3/

Memorandum and Order (concerning late-filed contentions: Quality Assurance, Hydrogen Explosion, and Need for Increased Safety of i

Control System Equipment), March 3, 1982 (" March 3 Order"). Only the portion of this Order which addressed the " Hydrogen Explosion" question is at issue in this appeal.

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9 Sunflower Alliance, et al. (" Sunflower"). As admitted, the hydrogen control contention, denominated " Issue #8", reads as follows:

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" 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 accommo-i r

dated without a rupture of the containment and a release of substantial quantities of radioactivity into the environment."

The NRC Staff opposes Applicants' motion for directed certification because it fails to provide the required justification for such an extraordinary procedure.

While the Staff believes that certain of the j

Licensing Board's reasons for admitting the contention were improper and that the admitted contention is not sufficiently specific, the Licensing Board's hydrogen control ruling does not affect "the basic structure of the proceeding in a pervasive or unusual manner"4/ -- the standard governing this motion for directed certification.

Therefore, Applicants' motion does not merit interlocuto'ry review, and must be rejected as a i

result.

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i II.

BACKGROUND l

Both Sunflower and the Ohio Citizens for Responsible Energy ("0CRE")

had originally proposed contentions addressing the need for hydrogen control measures.

The Licensing Board at the June 2, 1981 prehearing l

conference had expressed the tentative view that hydrogen control contentions must comply with the Commission's directive in the TMI-1 Restart _/ case.

That case addressed the way in which hydrogen S

-4/

Public Service Co. of Indiana (flarble Hill, Units I and 2),

ALAB-405, 5 NRC 1190, 1192 (1977).

~~5/

Metropolitan Edison Co. (Three Mile Island, Unit 1), CLI-80-16, 11 NRC 674 (1980).

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. j control questions, which are founded on assumptions at variance with 10 C.F.R. 6 50.44, may be litigated.

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Both Sunflower and OCRE indicated that each was then unable to articulate a scenario which met the standards of TMI-1 Restart.

The Licensing Board confirmed its tentative view on the applicability of j

TMI-1 Restart in its July 28,1981 Order.5/

In that decision, the Licensing Board also rejected the argument that the pending hydrogen 1

control rulemaking / preempted consideration of hydrogen control j

contentions.E/

Five months after the July 28 Order, Sunflower filed a motion for a hydrogen control contention based upon the following accident scenario:

1.

a pipe break in the reactor coolant pressure boundary causes a LOCA, as defined by 10 C.F.R. s 50.46(c)(1).

I 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 Cleveland Electric Illuminating (JulyCo., (Perry, Units 1 and 2) 6/

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LBP-81-24, 14 NRC 175, 207-209 28, 1981) (" July 28, 1981 Order").

-7/

At that tine the relevant rulemaking was the Proposed Rule, " Interim Requirements Related to Hydrogen Control and Certain Degraded Core Considerations", 45 Fed. Reg. 65466 (October 2,.1980).

-8/

July 28 Order, supra, at 208. The advanced copy of p. 208 should include the word "not" in line 8 between "does" and " prohibit,"

Unpublished Memorandum (correcting errors), Dockets 50-440 OL and 50-441 OL, March 4, 1982.

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-4 deficiencies which undermine ECCS effectiveness; and/or operator error.

3.

the Zircaloy fuel cladding melts; the zirconium reacts with water, liberating hydrogen gas.

4.

the hydrogen concentration within the containment increases to the flammability 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 10 C.F.R. 100.11 guidelines of 25 rems whole body and 300 rems thyroid.

With this supporting scenario, Sunflower asked in its motion that a major portion of its original Contention 7 be admitted as follows:

Petitioners allege that there is insufficient documentation of the ability of the containment structures of said facilities to safely 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.

Both the ApplicantsE/ and the Staff E/ opposed Sunflower's late-filed l

hydrogen control raotion, asserting that Sunflower had not satisfied the requirements for a late-filed contention.

In addition, the Staff argued that Sunflower had not satisfied the standards of TMI-1 Restart because it had failed to provide an adequately specific scenario. The Applicants

-9/

Applicants' Answer to Sunflower Allicance Motion to Resubmit Contention 7, dated January 25,1982 (" Applicant's Answer").

--~10/ Response of NRC Staff to Motions of Sunflower Alliance to Resubmit Hydrogen Control Contention and to Expand Quality Assurance Contention, dated January 28, 1982.

i contended that Sunflower's scenario lacked specificity, basis and a showing of relevance to the Perry facility. Applicants continued to i

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press the position that the pending rulemaking on hydrogen control should preemptconsiderationoftheproposedcontention.EI The Licensing Board, however, in its March 3 Order rejected these arguments and admitted a modified and restated form of Sunflower's hydrogen control contention.

The Licensing Board supported this action on the alternative grounds (a) that, in light of the Commission's view that the assumptions of 5 50.44 are unrealistic, it could now admit contentions which seek to require more stringent assumptions than 950.44,El and (b) that Sunflower's latest attempt now satisfied the Commission's requirements for raising hydrogen control issues under f

Part100oftheCommission'sregulations.El However, in admitting the contention, the Licensing Board rephrased it intentionally to exclude "any reference to the mechanism by which hydrogen can be generated.E/

Applicants' motion for directed certification followed this March 3 l

l Order.

l H/ Applicants' Answer, supra, at 12.

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12/ March 3 Order, supra, slip op. at 8.

l 13/

Id., slip op. at 8 and 11.

O 14/

Id., slip op, at 11.

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III.

DISCUSSION A.

The Requirements for Directed Certification 10 C.F.R. 5 2.718(i), in conjunction with i 2.785(b)(1), allows the Appeal Board to direct a Licensing Board to certify questions to the Appeal Board for its determination.35/ Because such appellate review in the midst of an ongoing licensing proceeding is disfavored,55/ a party l

seeking directed certification under 5 2.718(i) must meet stringent standards.

As the Appeal Board has recently reiterated, its discretionary interlocutory review, almost without exception, has been granted only I

where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter could not be alleviated by a later appeal, or (2) affected the basicstructureof'theproceedinginapervasiveorunusualmanner.12/

The Applicants have requested the Appeal Board to review the March 3 Order because they claim that the ruling indicates that the " Licensing i

15/ South Carolina Electric and Gas Co. (Summer, Unit 1), ALAB-663,

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14 NRC

, slip op, at 16 (December 14,1981).

-16/ See, e.a., Consumers Power Co. (Midland, Units 1 and 2), ALAB-382, TiiRC lid 7, at 606 (1977).

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---17/ Houston Lighting and Power Co. (Allens Creek, Unit 1) ALAB-635, 13 NRC 309 (1981) citing Public Service Company of Indiana (Marble Hill, Units I and 2), ALAB-405, 5 NRC 1190, 1192 (1977). Accord, Summer, supra, slip op, at 17, citing Public Service Electric and l

Gas Co. (Salem, Unit 1), ALAB-588, 11 NRC 533, 536 (1980).

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Board has embarked upon a course patently inconsistent with NRC regulations and established Commission and Appeal Board case law."El Because the Applicants contend that "[t]his disregard of well settled rulesandlegalprinciples...plac[es]intodoubtastoeveryissuethe significance of relevant NRC regulations and controlling authority,"El i

the Applicants believe that their motion addresses an issue of pervasive importance in the proceeding, thus satisfying the second standard of the MarbleHillcase.E/ Applicants support their position by contending I

1) that the Licensing Board had misunderstood the applicability of pending rulemaking to the Perry proceeding, 2) that the Licensing Board had misapplied the Commission's directives concerning hydrogen control I

contentions found in TMI-1 Restart, and 3) that the Licensing Board employed an incorrect standard for judging late-filed contentions.

The Applicants have failed to present a case warranting directed a

l certification.

While the Staff believes that certain grounds given by

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I the Licensing' Board for admitting the contention are incorrect, the l

Board's ruling does not affect "the basic structure of the proceeding in l

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l 18/ Motion for Directed Certification, supra, at 9.

I 19/ Id. (emphasis in original).

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20/

Id., at 2 and 9-10.

Applicants make no claim that their motion sficuld be evaluated against the first standard articulated in Marble Hill.

Id., at 9-10.

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w a pervasive of unusual menner,E l and thus does not warrant inter}ocutory intervention.

In parti ular, the central argument advInced by the Appli -

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s cants for reversal--that the pending hydrogen control rLlemaking' preempts i

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consideration of this contention--is incorrect.

Even ;f f Applicants' secondary arguments -- that the Licensing Board should have included in this contention a specific accident sequ'ence generating pxcessive h'ydrogen -

and that the Licensing Board misapplied 9 2.714(a) -- are' correct, the Licensing Board's errors in this case would not warrant int $r, locutory review.

These conclusions are elaborated lupon in the sections below.

B.

The Applicants Misstate the Effect Of Pending Rulemaking j

On the Admissibility of Contentions Applicants' principal argument for their assertion,thatihe underlying rationale of the Licensing Bodrd's admission-of the hydrogen control contention "affects the basic structure" of this proceeding is that the Licensing Board failed to come to grips with the Appeal Board's holdings in Douglas Pointe and Rancho Seco.

The Applicants believe Douglas Point and Rancho Seco_ prohibit con-1 sideration in this proceeding of any hydrogen control matter because the issue is currently the subject of rulemaking. Therefore, i

1 21/ Marble Hill, supra, at 1192.

1

---22/ Potomac Electric Power Co. (Douglas Point, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974).

-23/ Sacramento Municipal Utility District (Rancho Seco), ALAB-655, 14 NRC 799, 816 (1981).

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t Applicants contend that the Licensing Board, by harboring a " basic dis-agreement" with the Appeal Board's " holding and philosophy of Douglas Point,"SSI exhibits a more general reluctance to follow well-settled

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rules and precedent.

Applicants conclude that the Licensing Board's failure to follow Applicants' reading of Douglas Point cannot be " con-doned"2E/ and urge reversal of the Board's admission of the hydrogen control contention.

Applicants' position on the effect of pending rulemaking on a licensing proceeding is wrong and should be rejected.

1.

The fundamental obligation of a licensing board in determining whether an operating license application satisfies the standards for licensing is to ascertain compliance with currently applicable Commission regulations at issue in the proceeding.

As pointed out by the Appeal Board in the Maine Yankee operating license proceeding, a licensing board need not go beyond determining that an applicant has complied with l

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24/ Motion for Directed Certification, supra, at 14.

25/ Id.

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' applicable Commission regulations in determining whether there is adequate protection to the public health and safety.E/

The relevant inquiry for a Licensing Board in evaluating whether it should consider a proposed contention--otherwise in compliance with 10 C.F.R. @ 2.714--is to ask the following:

(a) does the contention articulate a question of an applicant's compliance with existing regulatory requirements, or (b) does it attempt to compel an applicant to measure up to standards beyond those now required by the existing regula-tory structure.

The question of compliance with existing regulations is abasicfindingrequiredbytheCommission'sregulations,El and the AtomicEnergyAct,El as a prerequisite to issuance of an operating license for a nuclear reactor.

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-26/ Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station),

ALAB-161, 6 AEC 1003, 1010 (1973), remanded for elaboration, CLI-74-002, 7 AEC 2 (1974), further statement of Appeal Board views, ALAB-175, 7 AEC 62 (1974), affirmed sub nom; Citizens for Safe Power

v. NRC 524 F.2d 1291 (D.C. Cir. 1975). Accord Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2),

ALAB-277, 1 NRC 539, 545 (1975); Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 42 (1977).

E/ 10 C.F.R. 9 50.57(a)(1) to (a)(3).

28/ Atomic Energy Act of 1954, as amended, G185; 42 U.S.C. 5 2235.

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...In the present case, if the proposed contention on hydrogen control raises an issue of compliance with existing regulations, and is otherwise acceptable under the standards of 5 2.714, it must be admitted.

If the proposed contention is an attempt to impose a new regulatory requirement, it must be rejected unless properly raised, such as pursuant to a petition under 10 C.F.R. 5 2.758. Although explicit Commission guidance could modify a licensing board's authority to consider an issue,21/ the Commission has not modified the standards articulated in TMI-l Restart for considering hydrogen control matters. In short, the effect of pending 1

rulemaking by itself does not restrict the ability of a party in a licensing proceeding to raise an issue of compliance with existing requirements.

~~~29/ See Pacific Gas and Electric Co. (Diablo Canyon, Units 1 and 2),

CLI-81-5, 13 NRC 361, 363-364 (1981).

This case makes clear that when an intervenor questions whether more is requ, ired of an applicant than compliance with all applicable regulations under the Atomic Energy Act, that issue is properly raised under s 2.758, unless the Commission authorizes licensing boards to consider the rule challenge. The Commission has made such a delegation with respect to certain issues related to the accident at Three Mile Island, Unit 2; Statement of Policy, Further Commission Guidance for Power Reactor Operating Licenses, CLI-80-42,12 NRC 654, 660 (December 18, 1980). The Commission has recently reiterated this principle with respect to hydrogen control measures for manufacturing license applicants:

" Licensing Requirements for Pending Construction Plant and Manufacturing License Applicants," 47 Fed. Reg. 2286, at 2299.

See also Notice of Proposed Rulemaking " Storage and Disposal of Nuclear Waste," 44 Fed. Reg. 61372 (October 25,1979)(Commission prohibition of consideration in a licensing proceeding of certain issues in that rulemaking).

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2. The Appeal Board's Douglas Point and Rancho Seco decisions are consistent with this interpretation of the Commission's regulatory structure.

Applicants in their motion misinterpret the thrust of these decisions.

The Appeal Board in Douglas Point addressed the issue of whether certain contentions should have been admitted in a licensing proceeding prior to the completion of pending rulemaking.

That rulemaking in the light of previous Appeal Board decisions in Vermont Yankec30/ and 3

Shoreham y represented aa attempt to expand the scope of the environmental costs the Commission would consider pursuant to its reponsibility under the National Environmental Policy Act of 1969.E/

The contentions at issue in Douglas Point dealt generally with the environmental effects of the nuclear fuel cycle.E l Previously in the Vermont Yankee proc'eeding the Appeal Board had held that the Commission's regulations did not then require consideration of the environmental effects of certain waste disposal questionsE/ or the effects of uranium mining and manufacturing.E/ Then in Shoreham, the Appeal

-30/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee), ALAB-56, 4 AEC 930 (1972).

31/ Long Island Lighting Co. (Shoreham), ALAB-99, 6 AEC 53 (1973).

E/ Douglas Point, supra, at 80-81.

M/ National Environmental Policy Act of 1969, 42 U.S.C. 4332 g seg.

34/ Vermont Yankee, ALAB-56, supra, at 935.

--35/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee), ALAB-73, 5 AEC 297, 303-304 (1972).

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. Board,-determining that the Commission in its uranium fuel cycle rulemaking notice had explicitly reserved to itself consideration of the adverse environmental impacts of the uranium fuel cycle, concluded that the "same considerations upon which the Vermont Yankee cases were premised," which considerations "are reflected in the notice of rulemaking..., are controlling."36/ As a result the Appeal Board denied admission of contentions on the incremental effects of fuel cycle costs.

The rulemaking which was pending at the time the Shoreham and Douglas Point contentions were dismissed was designed to expand the scope of the existing environmental regulations to include a requirement to consider fuel cycle costs in environmental assessments -- the same subject matter that was the focus of the contentions.

In the context of contentions which, if admitted prior to the completion of rulemaking, would have constituted a challenge to the existing requirements of the Commission, the Douglas Point Appeal Board concluded that " licensing boards should not accept in individual licensing proceedings i

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~--36/ Shoreham, supra, at 56.

The Commission in the rulemaking upon which the Appeal Board relied had expressly left standing the holding in i

the Vermont Yankee cases, ALAB-56 and ALAB-73.

37 Fed. Reg. 24193 (November 15,1972).

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contentions which are (or are about to become) the subject of general rulemaking by the Commission."El Because the Appeal Board previously had held that the scope of the Commission's environmental requirements then in existence was a narrow one, and excluded consideration of fuel cycle costs, it had no trouble in Douglas Point finding the contentions to be beyond the scope of existing regulations, and their subject matter properly left to the pending rulemaking.

Thus, the Appeal Board's statement in Douglas Point on the applicability of pending rulemaking was another way of saying that licensing boards are not to admit a contention which is an attempt to expand the scope of the existing requirements, absent an explicit Commission direction to the contrary. Douglas Point does not stand for the proposition which underlies Applicants' argument:

that a pending rulemaking automatically preempts all contentions which address the same subject matters as the rulemaking -- without regard to whether such contentions may be otherwise admissible as issue.s of compliance with existing regulations in the same general subject area.

The Appeal Board's Rancho Seco decision is not to the contrary.

Applicants argue that Rancho Seco mandates that " licensing boards are not to litigate hydrogen control contentions"El because of the pending hydrogen control rulemaking.

3_7/ Douglas Point,' supra, at 85.

7

-38/ Motion for Directed Certification, supra, at 13 (emphasis in original).

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. 3

..The Rancho Seco Licensing Board 1/ ad concluded (a) that the Rancho h

Seco containment could withstand the effects of hydrogen generation from

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a TMI-2 type accident sequence and (b) that for the control of any hypo-thetical accidents generating larger amounts of hydrogen than occurred at TMI-2 the Licensing Board would defer to the pending hydrogen control rulemaking.

The Licensing Board in Rancho Seco made findings with respect to the TMI-2 event that are consistent with an important element of the TMI-l Restart guidance -- strength of the containment in the face of hydrogen generation.SE/ With respect to the " possibility that larger amounts of hydrogen [than occurred at TMI-2] might be generated,"SA/ the Licensing Board noted that this would be addressed by the pending rulemaking.

-39/ Sacramento Municipal Utility District (Rancho Seco), LBP-81-12, 13 NRC 557, 635 et seq. (1981).

---40/ The Conaission in the TMI-1 Restart case indicated litigation of hydrogen control measures under Part 100 would include the issue of "the ability of the reactor containment to withstand any hydrogen combustion at presures below or above containment design pressure,"

supra, at 676.

l 41/ Rancho Seco, LBP-81-12, supra, at 637.

O

^

i j.

The Rancho Seco Appeal Board stated that the Licensing Board's determination on this sua sponte issue was made "without much

~

elaboration."S Relying on Douglas Point, the Appeal Board left the i

2

" matter of hydrogen control at Rancho Seco to the Commission's consideration in the ongoing rulemaking and refrain [ed] from any explicit comment nr judgment on this portion of the Board's decision."S/

Against this background, the Staff does not believe that the Appeal Board's Rancho Seco decision should properly be read for the proposition that consideration of all hydrogen control issues is preempted by the pending hydrogen control rulemaking, as Applicants contend. Moreover, Applicants' reading is inconsistent with the Appeal Board's ruling in the l

McGuire case that the litigation of hydrogen contentions is governed by the standards of TMI-1 Restart.SI In conclusion, we do not believe that the Douglas Point and

^

Rancho Seco decisions stand for the proposition that the pendency of rulemaking, without more, removes from licensing proceedings issues of i

compliance with existing regulatory standards relating to the same l

42/ Rancho Seco, ALAB-655, supra, at 816.

The Licensing Board in Rancho l

Seco had chosen to adopt the hydrogen control contention as a board question after the sponsoring intervenors had withdrawn from the l

case.

Rancho Seco, LBP-81-12, supra, at 635.

I M/

Id., at 816-817.

l 44/ Duke Power Co. (McGuire, Units 1 and 2), ALAB-669,15 flRC

, slip op. (March 30,1982).

The McGuire case is discussed further below.

The Appeal Board's McGuire decision was issued approximately a week' af ter Applicants' motion was filed.

. subject matter as the rulemaking.

Rather, the proper focus is whether a contention has in fact raised an issue of compliance with these existing requirements.

3.

The TMI-I Restart case articulates the standards for the admission of contentions challenging an applicant's compliance with hydrogen control requirements and makes clear that pending rulemaking should not preempt properly raised hydrogen control contentions.

In that case the Commission, in response to a Q 2.758 petition, refused to waive the applicability to Three Mile Island Unit 1 of the existing assumptions of Q 50.44 for the generation of hydrogen.

The Commission noted that the proper response to the issue of hydrogen generation in excess of the design basis assumptions of 5 50.44 was not a 9 2.758 waiver of 5 50.44, but "ruleraking to either amend or suspend the present rule," 9 50.44 --

a rulemaking proceeding that "will include measures to deal with hydrogen generation following a loss-of-coolant accident."4E/

The Commission, however, despite this intention tp consider hydrogen control in rulemaking, asserted that properly raised hydrogen control l

contentions could be litigated under Part 100.

As the Commission indicated, "quite apart from 10 C.F.R. 6 50.44, hydrogen gas control can i

properly be litigated" under Part 100, "if it is determined that there is a credible loss-of-coolant accident scenario entailing hydrogen generation, hydrogen combustion, containment break or leaking and offsite 45/ TMI-1 Restart, supra, at 675.

O et l

radiation doses in excess of Part 100 guidelines values."j6/

In the end, what the Commission articulated in TMI-1 Restart were the standards for

~

raising an issue of compliance with existing hydrogen control regulations.

4.

The Commission's statements on hydrogen control subsequent to TMI-1 Restart have not changed for power plants of the type involved in this proceeding the requirements of i 50.44 with respect to the quantities of hydrogen to be assumed for the plant's design, or the applicableprovisionsof10C.F.R.Part100.S2/

Instead these subsequent statements indicate that the Commission -- while retaining in the interim the current version of G 50.44 -- is going forward with the very rulemaking it anticipated in TMI-1 Restart, a rulemaking "to deal with hydrogen generationfollowingaloss-of-coolantaccident."18/

---46/ Id. Of course, while a party raising an issue of compliance with Part 100 must articulate an accident sequence, the burden of establishing compliance with Part 100 remains on an applicant for a license.

See Pennsylvania Power and Light Co. (Susquehanna, Units 1 and 2), ALIB!613, 12 NRC 317, 340 (1980).

--47/ The Perry facility is a boiling water reactor with a Mark III type containment. The Commission has adopted a final rule modifying the requirements of 50.44 with respect to inerting for boiling water reactors with Mark I and Mark II type containments, with respect to e

high point vents, and with respect to recombiner capability, 46 Fed.

Reg. 58484, Dec. 2,1981.

48/ THI-1 Restart, supra, at 675.

l i

O

..In none of the Statements of Consideration which are associated with the various noticesSE/ on the hydrogen control rulemaking has the

~

Commission indicated an express or implied intent to alter the position it delineated in TMI-1 Restart, which permitted consideration of properly framed hydrogen control issues during the pendency of this rulemaking.

In the absence either of a final rule which alters the existing hydrogen control requirements for reactors such as Perry (and consequently the nature of acceptable contentions challenging an applicant's hydrogen control system), or of any other guidance from the Commission on the proper treatment of hydrogen control issues, the guidance of TMI-1 Restart remains the proper standard for admission of hydrogen control contentions.

50/

5.

In the recent McGuirc decision, the Appeal Board confirmed that hydrogen control contentions continued to be governed by the guidance of the Commission's TMI-1 Restart decision.

At the hearing on the operating 49/ Proposed Rule, " Interim Requirements Related to Hydrogen Control and

~~

Certain Degraded Core Considerations," 45 Fed. Reg. 65466 r

(October 2, 1980); Final Rule, " Interim Requirements Related to 1

Hydrogen Control," 46 Fed. Reg. 58484 (December 2,1981)

(Principally addressing Boilding Water Reactors Mark I and Mark II Containments); and Proposed Rule, " Interim Requirements Related to l

Hydrogen Control," 46 Fed. Reg. 62281 (December 23, 1981) (BWR j

Mark III type containments and pressurized water reactors with ice condensor type containments). See also Advance Notice Of Proposed Rulemaking, " Consideration of Degraded or Melted Cores in Safety Regulation," 45 Fed. Reg. 65474 (October 2, 1980) (proposed change l

in " design basis accident" approach).

l

---50/ Duke Power Company (Wm. B. McGuire, Units I and 2), ALAB-669, 15 NRC

, Slip Op. (March 30,1982).

1

' license application, the McGuire Licensing Board had heard testimony both on the credibility of a TMI-2 type accident sequence, also characterized as 52D,53/ and on the measures required to mitigate the effects of hydrogen generated by such an accident. Because the Licensing Board found that a THI-2 accident sequence for the McGuire plant was not

" credible," it did not make findings on the adequacy of the hydrogen control system which the Applicant intended to install.

The Commission in its immediate effectiveness review of this decision stated that "in this case installation and use of an appropriate hydrogen mitigation system is required for adequate protection of public health and safety."j2/ The majority of the McGuire Appeal Board, taking intoaccountthisCommissionconclusionalongwithotherfactors,j3/

l addressed the adequacy of the hydrogen control system at the McGuire plant -- an issue not decided by the Licensing Board -- and concluded that "the hydrogen mitigation and control system could be operated without endangering the health and safety of the public during the period in which the Applicant and the Commission continue to explore the ade-quacy of the system in place and possible long-term alternatives."51/ n I

---51/

Id., slip op. at 19.

An 52D sequence assumes a small break Toss-of-coolant accident occurring anywhere in the primary coolant system with a simultaneous failure of the ECCS operation.

52/ Duke Power Co. (McGuire, Units 1 and 2), CLI-81-5, 14 NRC 1 at 2

~~

(1981).

j3/ McGuire, ALAB-669, supra, slip op., at 23 n.25.

54/

Id., slip op. at 35.

~

1 1

. the light of this conclusion and the unique circumstances of a Commission decision prior to Appeal Board review on a matter involved in that review, the Appeal Board majority concluded that it was unnecessary to reach the issue of whether the TMI-2 type accident sequence was a " credible" possibility for the McGuire plant.

Although the 11cGuire Appeal Board did not address the issue of what constituted a " credible" accident sequence, it made cleer that the TMI-1 Restart decision properly governed the litigation of hydrogen control issues. The Appeal Board found that the McGuire Licensing Board had properly relied on TMI-1 Restart in assessing hydrogen control contentions.EE/ As the majority stated in elaboration:

"The Commission thus having expressed its intent not to waive the design basis assumptions of 10 CFR 50.44 but to consider hydrogen control measures only in the context of a credible LOCA, it was incumbent upon the Licensing Board -- as it is now upon thig6pppeal Board --to act in accordance with that intent."

6.

In summary, the Commission, in subsequent statements, has not modified the basis established in the TMI-l Restart decision permitting litigation of hydrogen control issues in licensing proceedings. The recent Appeal Board McGuire decision confirms this principle.

55/

Id., at 16 and 18.

r

-56/

Id., slip op. at 18.

See also the concurring opinion of Mi. Rosenthal, slip op. at 55 et seq.

-n--.

n

22 -

.. C.

The Licensing Board's Errors do not Reach the Level Warranting a Motion for Directed Certification The Staff believes that the Licensing Board did err in its decision admitting the hydrogen control contention in this proceeding. The most serious flaw was the Licensing Board's conclusion that the Commission's pending rulemaking has in effect suspendeo the assumptions of i 50.44. E l Although assumptions at variance with s 50.44 can be raised in the context of 10 C.F.R. Part 100 with a properly drawn accident sequence --

as TMI-l Restart makes clear -- this does not mean that the Commission has suspended the assumptions of G 50.44.

In particular, contrary to the Licensing Board's contention the Commission's statements in conjunction with the rulemaking on hydrogen control and its proposed statement on safety goalsdonotdemonstrateasuspensionofS50.44.E/

In fact, the Commission has recently reaffirmed the continued viability of 6 50.44.

In a recent Statement of Consideration in the hydrogen control rule-making, the Commission noted that, although it will be reevaluating its assumption for hydrogen generation and hydrogen control during its long-term rulemaking on degraded cores, it " wishes to leave in place the existing provisions of 6 50.44..." in the interim.E/ Thus, to the 5_7/ March 3 Order, supra, slip op. at 8.

7

~-~58/ Id., slip op at 7-8.

See Proposed Policy Statement on Safety Goals Tor Nuclear Power Plants, 46 Fed. Reg. 7023 (February 17,1982).

59/ 46 Fed. Reg. 58484 (December 2, 1981).

0-

.n.

k

. extent,the Perry Licensing Board held that a hydrogen control contention can be admitted outside the context identified in TMI-l Restart, on the basis of its belief "that by the commencement of operation of Perry, the requirements of 10 C.F.R. 9 50.44 will be more stringent,"5SI its holding was improper.

If this were the only basis for the admitted contention, then Applicants' motion for directed certification of the March 3 Order would be more difficult to decide.

However, the Licensing Board indicates as an alternative basis for decision that Sunflower's reworded contention adequately raises an issue under the TMI-l Restart, holding that Sunflower, having suggested several accident sequences, "has met the Commission's former criteria for admission of this contentions."$1/

The Staff had argued in its opposition to Sunflower's resubmitted contention that the scenario proposed continued to lack specificity.

The Licensing Board, however, concluded that " Sunflower has not only suggested specific scenarios which might meet the, Commission's previous objections, it also provided increased specificity for its contention...."52/

60/ March 3 Order, supra, slip op. at 8.

61/

Id., slip op. at 11.

62_/

Id., slip op, at 8-9.

e 4

0

' The Sta.ff does not believe, however, that a disagreement over the specificity of an accident scenario constitutes an error that pervasively affects the pending proceeding.

If the Licensing Board had simply admitted Sunflower's contention that included a scenario the Board believed to be specific, the Staff would have employed traditional discovery tools to obtain additional specificity to assist in preparation of testimony or a motion for summary disposition.

But the Licensing Board went further and excluded from the contention "any reference to the mechanism by which hydrogen can be generated".52/ Without such a sequence, the parties, not knowing what accidents arc at issue, are forced to present evidence on a broad range of potential hydrogen generating sequences and the need for hydrogen control measures to prevent damage to containment.

Because the Licensing Board had modified and restated Sunflower's proposed contention, the parties are unable through discovery on Sunflower to clarify these uncertainties and narrow the hydrogen control issue to more reasonable dimensions.

As is evidenced by the hydrogen coretrol rulemaking, the choice of an effective method for hydrogen control may be directly f3/

Id., slip op. at 11.

l

. influenced by which accident sequence is assumed to generate the hydrogen.64/ In fact, an important question in the proposed rulemaking involves which accident sequence or sequences for generation of hydrogen are to be assumed when an applicant would perform analyses of the appropriate hydrogen control measures for its design.55/

4.

In conclusion, the Staff believes that errors in the Licensing Board's admission of this contention do not rise to a level of signifi-cance warranting Appeal Board certification of the matter to it for an interlocutory decision.

Specifically, the Licensing Board's ambiguity on the accident sequence, while troublesome, does not pervasively affect the basic structure of the Perry operating license proceeding,55/

nor does it exhibit a fundamental disregard of Commission precedent 51/ ni an admittedly difficult area of law.

O 64/ Proposed Rule, " Interim Requirements Related. to Hydrogen Control,"

46 Fed. Reg. 62281-62284 (December 23,1981).

It is this need to know the parameters of the hydrogen " problem" before one can come forward with the hydrogen control " solution" which underlies the Commission's statement "that control methods that do not involve burning provide protection for a wider spectrum of accidents than do those that involve burning."

Id. at 62282.

ML20054C137

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