ML20055J139
| ML20055J139 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 07/23/1990 |
| From: | Frye J, Kline J, Shon F Atomic Safety and Licensing Board Panel |
| To: | CLEVELAND ELECTRIC ILLUMINATING CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC), OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| References | |
| CON-#390-10657 90-605-02-OLA, 90-605-2-OLA, LBP-90-25, OLA-2, NUDOCS 9008010116 | |
| Download: ML20055J139 (18) | |
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, . /06 5f LBP-95LHRfiED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION P
T A 23 P2 :08:
ATOMIC SAFETY AND LICENSING BOARD I cre w or ECRETAHV i Before Administrative Judges ,
1 m :. ni W v John H Frye, III,. Chairman >
Dr. Jerry R..Kline ,
Frederick J. Shon SERVED JUL 2 3 1990 -[
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d88RVED JUL 2 6 1990
'In the Matter of
- Docket No. 50-44 0-OLA -42.
The Cleveland Electric 1 Illuminating Company, et al ASLBP No. 90-605-02-OLA (Perry Nuclear Power Plant, Unit No.'1)
July 23, 1990 t MEMORANDUM AND ORDER (Denying Staff's and Licensee's Motions for Reconsideration) '
This proceeding results from a petition to intervene and request for a hearing filed on March 8, 1990, by Ohio Citizens for Responsible Energy, Inc. , -(OCRE) .1 OCRE l' petitioned in response to a notice 2 that NRC was considering the issuance of a license amendment to The Cleveland
.; 1 0CRE is a private, nonprofit corporation which l
~a 1_. specializes in research and advocacy on issues of nuclear reactor safety and promotes the application of the highest safety standards to such facilities. It was an intervenor in the Perry operating license proceeding. In this proceeding, it seeks to intervene on behalf of its member L and representative, Susan L. Hiatt, who resides within 15 miles of the Perry plant. CEI and Staff do not question l- OCRE's representations in this regard.
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- M* W r M* 7 i M' g ADOCK 05000440' PDR
- Reserved on pu-ww A-2 docket in accordance with Chief, Docketing and Service Branch memo of 6/14/90.
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t ElectricLIlluminating Company (CEI).3 The license-amendment-1
.in question removes cycle-specific core operating limits and other= cycle-specific' fuel information from.the plant's
' Technical Specifications (TS) and replaces them with NRC-
' approved methodology for determining these limits. These
. limits provide the technical rules under which the reactor may be operated. OCRE wishes to litigate a single contention which states:
The: Licensee's proposed amendment to' remove cycle-
-specific parameter limits and other cycle-specific fuel information from the plant Technical Specifications to the. Core Operating Limits Report violates Sect 2on 189a of the Atomic Energy Act (42 USC 2239a) in that it deprives members of the public of the right to notice and opportunity for hearing on any changes to the cycle-specific parameters and fuel information.
-In,its petition OCRE agreed with CEI and Staff that the amendmentiinvolves purely an administrative matter that raises no significant hazards considerations.as the latter term = is defined in 10 CFR S 50.92 (c) . It stated that its intent is to raise a legal issue, via.: that the grant of the amendment will deprive OCRE members of the legal means to participate in the consideration of significant changes ,
to the plant's cycle-specific operations. '
3 CEI is lead applicant for itself and Duquesne Light Company, Ohio Edison Company, Pennsylvania Power Company, and the Toledo Edison Company, co-owners of the Perry Nuclear Power Plant.
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In: LBP-9 0'-15,1 31 NRC (1990), we' tentatively determined that OCRE had standing to intervene.and had i stated _a! valid contention. There we stated:
IIt may be that the amendment at' issue would' improperly
' deprive OCRE of hearing rights with; respect to futuro ~ ,
'changesLin cycle-specific parameterilimits. -
The answer to that question depends on whether the
. changes which the amendment would make=are in accord '
with $ 50.36 ind the Troian decision (Portland General Electric Comoany (Trojan Nuclear Plant), ALAB-531, 9 i
i NRC 263, 271-74 (1979)). As noted above, that decision!
interprets S 50.36 to require that
...those matters as to which the imposition of rigid conditions or limitations upon reactor operations is deemed necessary to obviate the oossibility of an abnormal situation or-event civina rise to an immediate threat to the oublic health and safety murt be included in the Technical Specifications.
Cl(arly, cycle-specific parameter-limits are necessary ,
to obviate the possibility cf an event which 'could immediately threaten the public health and safety.
Staff states that'the amendment in question is not contrary to the Troian decision because it will.not result in any reduction in safety margins. However, in our view that is the issue raised by OCRE's contention.
Leaving it to CEI (or any.Other licensee) to determine cycle-specific parameter. limits in accord with approved methodology but without prior Staff approval would only be proper, in,our view, if the '
methodology by which they are determined does not allow
-for excessive discretion or judgement on the part of CEI. We are unable to determine from the license amendment application or from Generic Letter 88-16 whether such discretion would be permitted. If excessive discretion were permitted the licensee, the amendment could constitute an unlawful abdication of b Commission responsibility to pass on the question of whether a licensea's activities meet the standards of the Atomic Energy Act and the concomitant responsibility to provide the public an opportunity to participate in that process.
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The question.herelat issue, while ostensibly only a question of law,ris not barren of subtle factual-c content.' -The legal issue is whether the change will unlawfully deprive OCRE-of participation'in_the< setting f of<the safety-significant cycle-specific parameter-limits._ But if the methodology'specified for the calculation of those parameters'and the specificstion of fuel design are such.as-to rigidly'determineithe cycle-specific parameter limits without the_use of engineering judgement,.OCRE would lose no legal rights by the change.~ (OCRE's-greatest loss would be the dubious privilege of checking CEI's arithmetic.) On the other hand,1if, as a matter of fact, substantial engineering judgement is needed to derive the parameters from the bases to be included in the new tech specs,-the change would.indeed deprive OCRE of its legal right to participate in the setting of safety-significant parameters. Thus we see wrapped within the outer layer of-the legal question a more recondite question of fact: To what extent does the material to be-included within the new technical specifications inexorably specify the cycle-specific parameter limits
.which would be removed? If some engineering judgement is permitted,Lis it permissible under the Atomic Energy Act for CEI to exercise it? We believe tha issueswouldbenefitfromexperttestimony.{these Because our reasoning went beyond the. arguments which had been raised by the parties, we did not issue an order
. admitting OCRE as a party, but rather permitted CEI and Staff to move for reconsideration. Both have done so, and OCRE has responded to those motions.
In its motion of June 28, CEI makes three arguments.
First, it repeats its position that OCRE lacks standing to participate because it has not demonstrated that it will suffer an injury in fact from the amendment and has not asserted an interest protected by the Atomic Energy Act.
CEI's argument is that OCRE's alleged injury is wholly
'LBP-90-15, 31 NRC (slip op, at 9-11).
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-5 E speculative,. raising only the possibility that, at some future time, OCRE'may be_ unsuccessful in seeking a hearing --
on certain unspecified CEI modifications to the cycle-specific parameter limits. CEI also argues that OCRE's claimed injury, the improper denial of hearing rights, does
-not raise a health and safety interest which is protected by i
the Atomic. Energy Act.5
.In its July 12 response, OCRE denies that the loss of hearing rights is in any way speculative. OCRE correctly 4
points out that that loss is one of the intended results of the license amendment at issue,' We agree with OCRE that j
this is a direct and immediate injury. If OCRE does not-4 assert it as a basis for standing now, but rather permits the license amendment to go into effect, there will be no future opportunity to raise the issue before the Comm'ssion. ,
'We also agree with OCRE that the hearing right it asserts is protected by the Atomic Energy Act. After all, it makes no sense for Congress to have provided for a right to a hearing before an administrative agency, and not to have provided a remedy to one deprived of that right by the agency.
S CEI's June 28 motion, pp.2-4.
' July 11 response, pp.2-4. OCRE aleo states that it has certain ". . . specific safety concer:ss about the adequacy of the computational methodologies used to support the
. reload analyses and to calculate the core operating limits."
~OCRE states that it may wish to raise these concerns in future proceedings.
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-l Second, CEI complains of our-statement, quoted above,-
that: -
Clearly, cycle-specific parameter limits are necessary to obviate the-possibility of an event which could immediately threaten the public health and safety, i i
CEI believes that this statement illustrates that we have prejudged the merits of'OCRE's contention because it-suggests that we have-already concluded "...that under certain circumstances the information which Licensees propose to remove from Technical Specifications cannot be removed.without violating 10 CFR S 50.36...."7 CEI's quoted i
- statement is absolutely correct. We have concluded that CEI's proposal to remove information from the Technical .
Specifications may violate S S0.36 if it would vest too much
'I discretion in CEI. The statement from LBP-90-15 quoted
- above states the obvious and provides the basis for that conclusion. We reached that conclusion in the context of considering whether "...the contention, if proven, would be l
of no consequence in the proceeding because it would not j ,
entitle petitioner to relief."
10 CFR S 2.714 (d) (2) (ii) . !
l Thus we concluded that under certain' circumstances, the l contention might entitle the petitioner to relief in this proceeding. This conclusion in no way indicates a prejudgment of the merits of the contention on our part.
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7 1 CEI's June 28 motion, pp.5-6. l 1
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CEI's last argument is that we:have in effect raised a sua sconte issue without following the procedure required by- '
10 CFR-S 2.760a. CEI' bases this argument'on the facts that 1)
~OCRE. characterized its' contention as raising purely an issue _
of law,; stated:that no significant hazardsfwere involved, '
~l and neverfsuggestedLthat safety concerns might.be raised.. ,
'CEI states that we have transformed that contention-from the j
purely legal issue put forward, i.e., the amendment would !
improperly deny hearing rights, to 1
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...a more recondite question of fact: To what extent does the material to be incluted within the new !
technical specifications inexorably specify the cycle-specific parameter limits which would be removed? If i
some engineering judgement is permitted, is it '
permissible-pnder the Atomic Energy Act for CEI to ;
exercise it?
CEI believes that the question whether the setting of cycle-specific parameter limits involves-substantial-engineering judgement'is beyond the scope of the contention advanced by OCRE.'
Although it-does not phrase the issue in terms of 10 CFR S 2.760a, Staff also believes that we have incorrectly interpreted OCRE's contention. Like CEI, Staff points out E that OCRE has consistently maintained that the contention does not raise an issue of safety significance. Staff urges 8
LBP-90-15, 31 NRC (slip op. at 11).
__ 'CEI's June 28 motion, pp.6-8.
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that we reconsider ourLinterpretation of OCRE's <
contention.10 r 1
For. its part, : OCRE states that we 'have notl raised a gna
- soonte issue, but merely recognized the need for factual ana: Lysis in order to resolve the contention. However, OCRE goes on-to express concern that our analysis limits its t
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hearing rights to the degree of engineering judgement i r
accorded CEI by.the proposed' amendment. OCRE states that -
1 those rights also. encompass the Staff-approved methodologies J
applied by CEI, noting that these are not contained in the ff i
Commission's regulations and consequently are subject to-challenge.ll We'believe that Staff and CEI are incorrect in stating that our analysis has strayed far beyond the contention which OCRE put forward. That contention raises a legal issue, viz., whether the amendment improperly would deprive
.OCRE of hearing rights under S 189a of the Atomic Energy Act '.
...on any changes to the cycle-specific parameters and fuel i information." While OCRE advanced no argument in support of its contention which centered on the safety implications of
.the change, but argued that S 189a and the judicial deci'sions intarpreting it prohibit the Commission from depriving OCRE of the right to a hearing on such changes, 10 Staff's motion of July 3, p.4.
11 0CRE's July 11 response, pp.7-9.
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, y ofjt , the terms of the contention inexorably raise a safety l b ,
l dy consideration. The contention asserts that S 189a prohibits the. elimination of an opportunity'for hearing on these changes. Section 189a requires a hearing on license
'l amendments, and' changes in Technical Specifications require
- such amendments. Thus OCRE's contention is correct if i r cycle-specific parameter limits and fuel information are of '
such a nature as to b'e required to be in the Technical Specifications. Clearly, the Troian decision requires that some such limitations must be included in the Technical r
Specifications.12 )
The amendment would both' remove these limitations from the-Technical Specifications and permit CEI to calculate li them according to approved methodology. From this we assume that.CEI would be permitted to implement the new cycle-specific parameter limits so calculated without prior Staff approval. Given the safety significance of the cycle-specific parameter limits, this would only be proper if the y methodology required te be applied does not permit substantial discretion on the part of CEI. In that circumstance, the Commission will exercise its statutory t
responsibilities through approval of the methodology, 12 Staff's affiant, Mr. Fieno, confirms this. Mr. Fieno states that "[a]n example of a cycle-specific rarameter for a boiling water reactor is the minimum critical power ratio ;
... that protects the fuel cladding from overheating."
Fieno affidavit, p.2.
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h .thereby removing the need to include cycle-specific
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parameter limits in the Technical Specifications. 'Indeed, e i 1
- Ithe Notice to which OCRE responded indicates that the 1
1 methodology is specifically. referenced.in the Technical Specifications. Presumably, OCRE could have raised a challenge to the methodology in response-to the notice that the instant amendment was under consideration. Permitting such a challenge would satisfy the hearing-requirements of S 189a.13 i-This: brings us to.the substance of Staff's motion. _
1 Staff views'LBP-90-15 as raising several questions. Staff ,
i characterized the-questions raised as whether: .
[c]ycle-specific parameter limits,are conditions of operation required to be in the technical !
specifications (TS) by 10 CFR S 50.36; (T]he' methodology of calculating cycle-specific parameters required by the TS allows for " excessive Judgement" by the Licensee; i (T]he proposed amendment constitutes an unlawful abdication of Commission responsibility to pars on the question of whether a licensee's activities meet the standards of the Atomic Energy Act; and
'13 0CRE has expressed concern that our interpretation of its contention was-too narrow because it does not contemplate that, if OCRE's contention is granted, it would be able to challenge the Staff's methodology in future hearings. WhileLwe believe that the answer to the question posed by OCRE's contention depends on the narrow issue of the amount of discretion which the amendment would vest in CEI, we do not believe that any future hearing which might be held would be-limited by that narrow issue. Rather, we believe that the scope of any such hearing would be controlled by existing Commission practice.
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[T]he cycle-specific parameters are conditions or-L, gar limitations necessary to obviate the possibility:of an abnormal _ situation or event'giving rise to,.an immediate s
threat to.the:public health and safety.
1 In order to answer these questions, Staff hac supported itc motion with the affidavit of Daniel Fieno. Staff l-ch'aracterizes Mr. Fieno's affidavit as demonstrating that the proposed amendment will not vest excessive discretion in '
CEI, that relocation-of the cycle-specific parameter limite .
from the Technical Specifications to the Core Operating Limits Report "...does not involve conditions of reactor '
operation necessary to obviate the' possibility of an g abnormal situation or event giving rise to an immediate threat to public health and safety as described in 10 CFR S 50.36." Staff notes that this change does not involve any l change in the regulatory limits for operation. The'latter !
remain the same and continue to' govern the cycle-specific parameter limits through the application of >"aroved methodology.
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" Staff's July 3 motion, pp.1-2. Staff also states that we characterized OCRE's contention as raising an issue ;
of the reduction of safety margins. We did comment in LBP- ,
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90-15, in response to Staff's assertion that the amendment in question did not run afoul of the Troian decision because it would result in no reduction in safety margins, that in .
, our view,.that was the issue. By that comment, we meant only to convey our opinion that the amendment in question ,
would meet the Troian standard if in fact the methodology for setting the cycle-specific parameter limits is so tightly drawn as to preclude discretion on the part of a licensee which could result in the reduction of safety margins.
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OCRE notes that the affidavit provides some of the factual information which we sought but does so without A providing it an opportunity to confront the witness. OCRE maintains that Mr. Fieno does not answer our question regarding the degree of discretion afforded CEI because he asserts only that Generic Letter 88-16 coes not allow for L any discretion on a licensee's ptet which differs from that previously allowed. OCRE also believes that Mr. Fieno's affidavit confirms its opinion that the only change which would be accomplished by the amendment is the elimination of the requirement for a public hearing on changes to the cycle-specific parameter limits. Finally, OCRE points out that Mr. Fieno's observation that the approved methodology is contained in Topical Reports, rather than the regulations, requires that a hearing be afforded to permit challenges not only to the application of the methodology, but to the meth.cs.syy itself.
We believe that Staff bases its vpinion that the proposed change does not implicate S 50.36 on the ground that nothing !3 being changed, but rather is being re.1.ocated. However, as noted above, that relocation entails important procedural changes. Previously, cycle-specific parameter limits were calculated by the licensee and approved by the Staff. Under the amendment, Staff approval is no-longer necessary. "The current method of controlling reactor physics parameters to assure conformance to 10 CFR
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50.36 is to specify the specific value(s).... The alternative contained in (Generic Letter 88-16) controls the values of cycle-specific parameters and assures compliance with 10 CFR 50.36 ... by specifying the calculational methodology and acceptance criteria."Is Staff may well be correct that the change contemplated by the proposed amendment makes no change in the degree of i control exercised by Staf f over CEI's activities.16 If so, the proposed amendment does not contravene S 189a as claimed by the contention. But OCRE is correct that it is entitled to an opportunity to confront that factual conclusion at an evidentiary hearing. Consequently we are scheduling an (
evidentiary hearing to afford OCRE that opportunity. j We emphasize that this hearing is to be strictly limited in scope. The only factual lasue before us concerns the amount of discretion which would be vested in CEI by the proposed amendment. The related question raised by OCRE concerning the propriety of stating the approved guidance for setting cycle-specific parameter limits in topical reports is outside the scope of the contention and the hearing. Given the limited scope of the hearing, at most only limited discovery is necessary. Any interrogatories are to be propounded promptly and excessive numbers of 15 Enclosure to Generic Letter 8E-16, pp.1-2.
l'Indeed, on cursory examination Mr. Fieno's affidavit appears to substantiate this claim.
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interrogatories will be looked upon with disfavor. Should the parties wish to take depositions, it is suggested that i they be scheduled the day before the hearing. If necessary, we will hold a prehearing conference to dispose of any outstanding matters immediately prior to commencing the hearing.
In consideration of the foregoing, it is this __ day of July, 1990, ORDERED:
- 1. CEI's and Staff's motions for reconsideration are denied;
- 2. OCRE is admitted as a party to this proceeding and its contention is accepted for litigation in accord with the terms of this Memorandum and order;
- 3. Any interrogatories which the parties wish to propound are to be served no later than August 3, 1990;
- 4. Answers to interrogatories are to be served no later than August 17, 1990; t
- 5. Any depositions are to be completed on or before '
August 27, 1990;
- 6. The evidentiary hearing, imr?.diately preceded by a prehearing conference, if necessary, will commence at 9:00 AM, August 28, 1990, at a location in the vicinity of the plant to be announced, and will be completed no later than '
s 5:00 PM, August 30, 1990; and
- 7. In accord with 10 CFR S 2.714a, an aggrieved party may appeal this Memot,'ndum and Order within ten days after
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p its service by the filing of a notice of appeal and accompanying supporting brief with the Atomic Safety and Licensing Appeal Board. Within ten days after service of an appeal, any other party may file a brief in rupport of or in opposition to the appeal.
Atomic Safety and Licensing Board
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Frederi A J.
S 'n ADMINISTRATIV NJUDGE
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. Jerry /R. Kline MINISTRATIVE JUDGE
'H(ptye, III, Chairman ISTRATIVE JUDGE Bethesda, Maryland July 23, 1990 J
4 UN!1ED STATES OF AMERICA NUCLEAR REGULATCRY COMMl!S!ON k In the Matter of I THE CLEVELAND ELECTRIC [LLUMINATING ;
Docket No. (s) 50-440-0LA LOMPANY. ET AL.
(Perr y Nuclear Power Plant , Unit 1.' ;
i CER11FICATE CF SERVICE l'hereoy certif y that copies of the f oregoing LB M60 LBP-90-25 (DENY!NG...)
have been served upon the following cersons by U.S. mail, first class, except '
as otherwise noted and in accoroance alth the recuirements of 10 CFR Sec. 2.712.
Atomic Safety and Licensino Acceal Administrative Judge Boare 3ustave H. Linenberger. Jr.
U.S. Nuclear heculatory Commissten Atomic Safety and Licensing Boarc Washington. DC 20555 U.S. Nuclear Regulatory Comntssion Washinoten. DC 20555 Administrative Judge Administrative Judge John H. Frye, Ill, Chairman Jerry R. Kline
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Atomic Safety and Licensing Board Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commitston U.S. Nuclear Regulatory Commisster Washington, DC 20555 Washington, DC 20555 4dministrative 'udge ;olleen F. wocchedd i iso.
x Frecertek J. Shen Office of the General Counsel 1 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
'U.S. Nuclear Regulatory Commissten Washington, DC 20555 Washington, DC 20555 Colleen Woodhead, Esquire Jay E. Silberg, Esc. l Office of the General Counsel Shaw, Pittman, Fetts & Tronortdge U.S. Nuclear Regulatory Commission 2300 N Street, N.W.
Washington, DC 20555 washincton, DC 20037 Susan L. Histt Shaw, P ttman, Potts & Trewbridge Ohio Cittrens for Responsible Energy 2300 N Street, N.W. 8275 Munson Read Washincten. DC 20037 Menter. CH 44060
i Docket No.(s)50-440-OLA LB N60 LBP-90-25.IDENYlN6...)
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I Carol 0'Claire Ohio Emeroency Management Agency j Tecnnical Hazards Branen '
! 2625 West Granville Road Coluseus, OH 43235 l
Dated at Rockville, Md. this 23 day of July 1990
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Offic of the Secretary of the Conaillion '
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UNITED STATES OF. AMERICA' ,i NUCLEAR RE6ULATORY COMMISSICN :
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In.the Matter of I THE CLEVELAND ELECTRIC 11LLUMINAT!hG : Docket No.(s) 30-440-OLA-2 COMPANY ET AL. !
tFerry Nuclear. Power Plant, Unit 1) i l
i CERTIFICATE OF SERvlCE
- p. I hereby certify that contes of the foregoing MbC L6F-90-25 (DENYINS.. 17/23 i; have been servec upon the 4ollowing persons by U.S. mall, first class, except L. .m as otherwise noted and in accorcance with the requirements of'10 CFR Sec. 2.712.
p Atomte Saf ety and Licentino Appeal Administrative Judge L
Boarc John H. frye, 111, Chairman U.S. Nucsear heculatory Ccemission Atomic Sciety and Licensanc boarc Washington, DC 20555 U.S. Nuclear Regulatory Ccamission aashinoten. DC .20555 Administrattve Judge Administrative Judge Jerry R. Lline Frederick J. Shon Atomic-Safety and Licensing Boaro Atomic Safety and Licensino-Goare
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
' Washington DC 20555 Washtanten. DC 20555 Collten Wnodhe40 E*Qutre JdV E. 'llbery 0ffice of the General Caunset Shaw. Atttman, Potts & Trowbricge U.S. Nuclear ReQulatory Commissten 2300 N Etreet, N.W.
Washington. DC 20535 Wasninotcn, DC 20037 Eusan Hiatt Carol O'Claire Ohio Citt: ens for Responsible Energy Technical Ha:ards Branch 8275 Munson Road Ohio Eeergency Manacement Agency Mentor. OH- 44060 2825 West tiranville Roac Columeus. OH 43235 Deteo at Rockville, Md. this 26Lday of July 1990 ,
p 4. .6 014U. AdOd Offic e4 tne secretary of the Commission l:
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