ML20058A446
| ML20058A446 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 01/29/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AIA, TASK-SE SECY-81-079, SECY-81-79, NUDOCS 8110280585 | |
| Download: ML20058A446 (18) | |
Text
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- SECY-81-79_
January 29, 1981 ADJUDICATORY ISSUE (Affirmation)
For:
The Commissioners From:
James A. Fit:: gerald Assistant General Counsel
Subject:
Review of ALAB-618 (In the Matter of Dairyland l
Power Cooperative)
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Facility:
Lacrosse Boiling Water Reactor Pur' pose:
To inform the Commission of an Appeal Board decision on which the licensee has petitioned for review [and which, in our opinion, d3 Review Time Expires:
February 20,1981 (as extended)
Discussion:
In ALAB-618, the Appeal Board decided that under the specific circumstances in this proceeding the Licensing Board in a show cause hearing on i
the need for a site dewatering system could first determine the Safe Shutdown Earthquake for that site.
Licensee Dairyland Peter Cooperative has ^
1 petitioned for review, 1/ contending that the Appeal Board's decision expands the scope of the hearing beyond the remedy in the order and, thus,conflictswitg.theCor. mission'sdecision in Marble Hill. 2/
l C e-d 1/
The Commission's regulations provide that peti _tions from a decision on a certification will not be entertained.
10 CFR 2.786(b)(1) and (b)(9).
~2/
Public Service Co. of Indiana / Marble Hill Nuclear Gener-ating Station, Units 1 and 2), CLI-80-10, 11 NRC f438 (1980).
CONTACT:
Sheldon L. Trubatch, OGC 634-3224 laforma'i:n in h3 :md v:s bed in s::mbnte v..:h Sje F c;$m e; humMian i
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Y{ L CILINSK92-436
2 This proceeding arose fren an Order issued by the Director, Office of Nuclear Reactor Regu-lation, on February 25, 1980 directing the licensee to show cause why it should net be required to design and install a site dewater-ing system "to preclude the occurrence of liquefaction in the event of an earthquake with -
peak ground surface accelerations of 0.12g or less" or shut down the Lacrosse reactor (LACBWR).
l That Order also provided interested persons with an opportunity to request a hearing on the following issues: (1) "[w]hether the licensee should submit a detailed design proposal for a site dewatering system;" and (2) "whether the licensee should'make operational such a dewater-ing system as soon as possible after NRC approval but no later than February 25, of the system, 1981 or place the LACBWR in a safe cold shutdown condition."
Subsequently, in response to requests for a hearing, the Commission on July 29, 1980 delegated its authority to a Licensing Board to determine if the petitioners had standing and, if so, to conduct a hearing on the issues as framed in the Director's Order. 3/
Petitioners were found to have standing and a hearing was initiated.
Staff has since received additional information regarding soil properties at the Lacrosse site and, as a result, no longer believes that a dewatering system is required there to prevent soil liquefaction in the event of an earthquake producing a maximum ground acceleration of 0.12g. i/
Consequently, staff has moved the Licensing Board for summary disposition in the affirmative on the following issue which it characterizes as basic in this' proceeding:
Whether for an earthquake up to magnitude 5 5 with a peak ground acceleration of 0.12g or less, the soils under pile-supported structures at the LACBWR site are safe against liquefaction.
i Petitioners are the Coulee Region Energy Coalition and 3/
Frederick M. Olson III.
The Appeal Board did not have before it licensee's request E/
that the Licensing Board terminate the hearing in light of this development.
i l
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3 Although the analysis in the Director's Order is based on the assumption that no earthquake the LACBW3 site would produce ground accel-ateration exceeding 0.12g, the Licensing Board believes that under the circumstances in this proceeding it is not required to limit the scope Lacrosse of the hearing to such earthquakes.
was licensed before promulgation of Appendix A to Part 100, and, therefore, no Safe Shutdown Earthquake (SSE) has been established for The maximum acceleration value of site.
that 0.12g has been proposed by licensee in its application for a full-term operating license, and that value has been used by the staff toHow-analyze liquefaction at the Lacrosse site.
ever, staff had assigned an acceleration value of 0.20g to the SSE for the Tyrone facility which is in the same tectonic province as Lacrosse and less than 100 miles away from that Because of these circumstances, the facility.
Licensing Board proposed to permit the size of the SSE to be litigated in this proceeding.
Licensee and staff took the position that the show-cause Order treated the SSE as given and its magnitude could not be explored in this that proceeding.
Intervenors sought to put the issue Because of this difference of in controversy.
and the importance of the issue to the
- opinion, Licensing Board, it certified 1/ to the Appeal Board the question of whether the Licensing Board must accept the 0.12g value as the maximum acceleration for the purposes of the hearing.
In the alternative, if the Appeal Board did not favorably on the certified question, the act Licensing Board requested further certification to the Commission, with a recommendation that its delegated authority in this show-cause pro-ceeding be expanded to include determination of the SSE for the Lacrosse site.
2/
4 The Appeal Board accepted the question and was triefed by the licensee and staff.
Licensee contends that the Licensing Board is bound to the 0.12g value because that is the maximum acceleration value identified in'the Director's Order, and the enforcement proceeding is limited to the consideration of the remedy proposed in that order. 6/
Staff contends that the Licens.
ing Board must determine whether a dewatering l
system is required.
That determination depends on the assessment of liquefaction potential which in turn depends on seismic conditions at the site.
Since the SSE has never been defini-tively determined for the Lacrosse site, staff changed its position and now believes that:the Licensing Board must be free to inquire into the premise that 0.12g is a realistic estimate of the seismic hazard as claimed by applicant and staff.
In ALAB-618, the Appeal Board agreed with the staff's analysis and concluded that the Licens-ing Board is empowered to consider and determine the SSE for the Lacrosse site. 1/
In response to licensee's argument that the Director's order was premised on a maximum acceleration of 0.12g, the Board noted that the issues framed by the Director and repeated in the Commission's Crder did not explicitly refer to any particular acceleration value.
In the Board's view, the issues are simply whether a site dewatering system should be designed and then installed by a particular date.
The Board found no intent on the part of the Directer (or the Commission) to foreclose examination of the validity of the-assumed maximum acceleration value.
- Moreover, the Board noted that no one has suggested pre-scribing a different remedy even if the Licensing Board assigns a different acceleration to the Lacrosse SSE.
-6/
Public Service Conrany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980).
For this reason, the Appeal Board found it did not need to 1/
address the Licensing Board's alternative request for certi-fication to the Commission.
I
5 r-D' I fInourview, The Director's order was premised oh'thb-~pbtentdal seismic hazard from an earth-quake produef.ng a maximum acceleration of 0.12g and limited the proposed remedy to the design and installation of a site dewatering system to preclude the occurrence of liquefaction in the.
event of such an earthquake.
Although that acceleration value has never been definitively determined as the maximum potential earthquake induced acceleration at Lacrosse, and there is some question as to that value in light of staff's assignment of a higher value of 0.2g for the maximum earthquake-induced acceleration expected at the nearby Tyrone site, 8/ the Director's-analysis of the seismic risk of interim opera-tion was also premised on the maximum acceleration value of 0.12g.
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For these reasons i
r J
It should be noted that the staff has also nsed a maximum 8/
Wo30 Creek, which is in acceleration of 0.12g for.the SSE at
'-3, 11 NRC 175 the same tectonic province as Tyrone.
(1980).
i 7
1 6{
J Accordingly, we believe
<t i
Recommendation:
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M-ames A. Fitzgerald Assistant General Counsel
Attachment:
Proposed Order Comissioners' comments or consent should be provided directly to the Office of the Secret by c.o.b. Friday, February 13, 1981.
Comission Staff Office coments, if any,.should be submitted to the Comissioners NLT February 6,1981, with an infomation copy to the Office of the Secretary.
If the paper-is of such a nature that it requires additional time for analytical review and coment,-
l the Comissioners and the Secretariat should be apprised of when comments may be expected.
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i This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of February 16, 1981.
Please refer to the appropriate Weekly Comission Schedule, when published, for a specific date and time.
DISTRIBUTION Comissioners Comission Staff Offices Secretariat k
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. Buck Thomas S. Moore
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In the Matter of
)
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Docket No. 50-409 SC DAIRYLAND POWER COOPERATIVE
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(La Crosse Boiling Water Reactor)
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i Messrs. O. S. Hiestand and Kevin Gallen, Washington, D.
C.,
for the licensee, Dairyland Power Cooperative.
Mr. Steohen G. Burns and Ms. Ksren D. Cyr for tae Nuclear Regulatory CoIrdnission s ta f f.
MEMORANDUM AND ORDER November 17, 1980 t
(ALAB-618)
In this show-cause proceeding involving the La Crosse nuclear f acility, the Licensing Board is called upon to decide whether the licensee should be required to install a site dewatering syste= to prevent liquefaction (i.e., the flow of were an earthquake to occur in the vicin-soil under the site)
In order to determine the liquefaction po-ity of the site.
and thus the need to take measures to protect against
- tential,
- j:(0b ?J
4 4 j the seismic conditions obtaining at the site obviously must it, be taken into account.
More specifically, an essential ingredi-ent of the determination is the ground vibratory motion (i.e.,
acceleration) which might be associated with the postulated ear thquake.
What has brought the proceeding to us at a still incipient stage is a question certified by the Licensing Board in its September 30, 1980 prehearing confe'rence order.
LBP-80-26, In essence, we are asked to decide if in its 12 NRC consideration of the ultimate issue before it -- whether a site dewatering system must be installed -- the Licensing Board must accept a particular level of acceleration as a "given".1/
Stated otherwise, is the Board clothed with the requisite au-thority to determine for itself (following the receipt of evi-dence addressed to the matter) the acceleration level which sh'ould be assigned to the postulated earthquake for present purposes?
Id. at (slip opinion, p. 21).
on October 1, we accepted the certified question under the authority of 10 CFR 2.718 (i) and solicited the views of
--1/
The acceleration associated with an earthquake is ex-pressed in terms of a percentage of "g" (one g represents the gravitational acceleration of a free falling body).
i
3 the partics.
The licensee and the NRC staff responded; the (an organization and an individual) did two intervenors not.
Following full consideration of the disparate positions of the licensee and staff, we conclude that the Board below is empowered to consider and determine de novo the ground acceleration matter.
For this reason, we need not act upon the Board's alternate request that 'the Commission be asked now' to confer such power upon the Board.
Ibid.
The current seismic and geologic siting criteria A. 1.
for nuclear power plants are contained in Appendix A to 10 CFR Part 100.
Firmly embedded in those criteria is the " Safe Shut-down Earthquake" (SSE) concept.
l The SSE for a particular site is that earthquake "which is based upon an evaluation of the maximum earthquake potential considering the regional and local geology and seismology and specific characteristics of local subsurf ace material" and "which could cause the maximum vibratory ground motion at the site * * *".
10 CFR Part 100, Appendix A, 50 III(c),
V (a).
The nuclear power plant must be designed so that, should the SSE occur, "certain [specified safety] structures, systems, and components will remain functional".
Id.,
5 VI(a).
In addition, the design must "take into account the possible effects of the ISSE) on the facility foundations by ground Ibid.
disruption, such as * *
- liquefaction
- the SSE is the earthquake postulated for the In short, purpose of determining the adequacy of the seismic design of the f acility.
The plant has to be capable of being safely shutdown despite the effects of whatever vibratory ground motion might be experienced at the site as a result of the (One of the elements of the SSE determination is, of SSE.
an ascertainment of the amount of such motion (jtc[.,
- course, a V{a)).)
As the Licensing Board pointed out, 2/ an SSE for 2.
This the La Crosse site has never been formally established.
is because Appendix A was not promulgated until 1973, years af ter the La Crosse f acility received its construction permit (in 1963) and then a provisional oper.iting license (in 1967).
the licensee submitted a seismic eval-In 1974, however, uation in connection with its application for a full-term operating license for La Crosse. 3[
That evaluation selected l
_2 /
LBP-80-26, supra, 12 NRC at (slip opinion, p. 15).
_/
The adjudicatory proceeding involving that application 3
is still pending.
See ALAB-614, 12 NRC fn. 6 (September 24, 1980).
l
And, although an SSE with an acceleration of 0.12g at the site.
it is yet to have made its own SSE determination,1/ believing the staff like-the 0.12g value to be suf ficiently conservative wise employed that value in its recent analysis of the liquefac-tion potential at La Crosse.
But the Licensing Board is disinclined to accept the 0.12g value uncritically.
LBP-80-26, supra, 12 NRC at (slip opin-Its principal rea' son is that a 0.20g value had ion, pp. 17-18).
been assigned by the staf f to the SSE for the Tyrone facility, located less than 100 miles from La Crosse and in the same tec-tonic province.
As the Board sees it, the considerations which i
led the staff to its Tyrone result might come into play as well The Board further observed that, although the staff has here.
now concluded that liquefaction would not be a problem at La Crosse in the event of an earthquake accompanied by a 0.12g acceleration, E/ no analys'is seemingly has been made regarding (at pp. 9-11), the staff took note 4/
In its brief to usalthough Appendix A to Part 100 does of the fact that,
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not directly apply to plants operating under licenses issued prior to its promulgation, a Systematic Evalua-tion Program has been established for the purpose of comparing. "important features of the eleven oldest nu-4 including clear power plants in the United States, f
[La Crosse), with current NRC design criteria for 1
The ultimate objective is to determine the plants".
"overall safety significance" of the nonconformity of those facilities with " current licensing requirements".
In light of that conclusion, the licensee urged the 5/
Licensing Board to terminate this show-cause proceed-
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LBP-80-26, supra, ing.
The Board declined to do so.
i 12 NRC (slip opinion, pp. 4-7).
That matter is not before us at this time.
I I
the likelihood of liquefaction were the acceleration to reach l
(slip opinion, p. 18).
0.20g at the site.
Id. at _
the licensee in-Notwithstanding the foregoing f actors, B.
in deciding whether a site dewater-sists (as it did below) that, ing system is necessary, the Licensing Board is barred from in-quiring into the magnitude of the seismic hazard obtained at the the Board Rather, according to the licensee, La Crosse site.
must accept the 0.12g acceleration *value without regard to whether This is said to a basis exists to question its correctness.
follow f rom the terms of both (1) the show-cause order issued by the Director of the Office of Nuclear Reactor Regulation (NRR) on February 25, 1980; and (2) the Commission's July 29, 1980 order.
the licensee was directed to show cause In the former order, why it should not be required to design and install a site de-watering system "to preclude the occurrence of liquef action in the event of an earthquake with peak ground surf ace accelerations.
That order went on to provide interested per-of 0.12g or less" sons an opportunity to request a hearing.
At any such hearing, the issues to be considered would be (1) "[w)hether the licensee should submit a detailed design proposal for a site dewatering "whether the licensee should make operational system"; and (2) such a dewatering system as soon as possible af ter NRC approval
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25, 1981", or shut down of the system, but no later than February the La Crosse reactor.
For its part, the July 29 Commission order established a licensing board to pass upon the hearing re-quests filed in response to the show-cause order and then stated:
If the Poard determines that a. hearing is required, the Board is instructed to conduct an adjudicatory hearing solely on contentions within the scope of the issues identified in the February 25, 1980, Order: (1) whether the licensee should submit a detailed design pro-posal for a site dewatering system; and (2) whether the licensee should make operational such a dewatering system as soon as possible af ter NRC approval of the system, but no lat-er than February 25, 1981, or place the LACBWR in a safe cold shutdown condition.
The licensee would have it that the specific reference to c
"0.12 g or less" in the show-cause order must be imported into the statement of issues contained in that order (and later re-I Consequently, we are told, peated in the Commission's order).
the Licensing roard's authority is restricted to determining whether a site dewatering system is necessary in order to avoid liquefaction should there be an earthquake occasioning no greater than a 0.12g acceleration.
For, as the licensee reminds us (and no one disputes), NRC adjudicatory boards pos-sess only such powers as have been conferred upon them by the Commission. 5/
And the responsibility for setting the bounds (Shearon Harris 6/
See, e.g., Carolina Power and Light Co.and 4), CLI-80-12, Nuclear Power Plant, Units 1, 2,
3,
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11 NRC 514, 516-17 (1980).
I u '
E of this show-cause proceeding was vested by the Commission in the NRR Director, not the Licensing Board.
The staff had taken a similar stance before the Licensing Board.
But it now sees the matter differently.
Its present position is this (Br. pp. 6-8; footnotes omitted) :
Although the Licensing Board must ultimately determine whether or not a dewatering system should be designed and then installed at the La Crosse site, the Board's determination can-not be made without refer *ence to the under-lying reasons in the Order to Show Cause for even considering installation of a dewatering system at La Crosse.
A dewatering system was proposed in the Order to Show Cause, because it was viewed as a possible solution to the perceived potential liquefaction problem at La Crosse.
Whether there is a liquefaction problem at the site will, in turn, depend upon the nature of the seismic hazard at the site.
A determination of the need for a site dewatering system rests in part, therefore, on an assessment of liquefaction potential inThe light of seismic conditions at the site.
Staff believes that the Licensing Board is correct in saying that a reasoned determina-tion of the need for a dewatering system de-pends partly on its confidence in the ground acceleration value used as a basis for its j
determination.
If a particular safe shutdown earthquake with i
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a corresponding ground acceleration value had been established in a prior licensing proceed-ing, the effect of the 0.12g ground accelera-tion value might be different and indeed con-t clusive for purposes of the inquiry on the Order to Show Cause.
However, as the Board a particular safe-shutdown earth-points out, quake has never been conclusively determined i
, i for the La Crosse reactor.
Despite this fact, both the licensee and the Staff have relied on
.12g value as an appropriate estimate of the aseismic hazard at the La Crosse site.
The
.12g value was one of the premises for the Staff's issuance of the Order to Show Cause in the first instance, as well as in its later de-termination that the licensee need not install a dewatering system at the site.
Since both the Staf f's and the licensee's judgment that a dewatering system need not be installed at the site is premised, in part, on the belief that
.129 is a realistic estimate of the seismic hazard at the La Crosse site, it appears unrea-
'nable to restrict the Board's inquiry into is premise, particularly when the seismic nazard has not been conclusively established.
In view of the basic policy that the boards examine " thoroughly and carefully" the critical safety issues before them, inquiry into the appropriateness of the use of the.12g value by the Staf f and the licensee for purposes of eval-uating liquef action potential should be consid-ered within the scope of the permissible inquiry in this "show cause" proceeding.
C.
It is readily apparent to us both that the staff's analysis is sensible and that the result advocated by the li-censee offends reason.
In a nutshell, the Licensing Board (once having determined the necessity for a hearing) has been directed by both the Director's show-cause order and the Commission's subsequent order to determine whether safety con-siderations dictate the. installation of a dewatering system.
The answer 'to this question depends upon the liquefaction po-tential at La Crosse which, in turn, hinges upon the extent of the seismic hazard (i.e., the amount of the ground accelera-tion which might be experienced at the site were the SSE to F
i i
occur).
Although both the licensee and the staf f believe that 0.12g value can appropriately be assigned to that accelera-a tion, that value has never been formally established, let alone tested in adjudication.
Moreover, the Licensing Board has f
found (with at least some justification) cause to believe that l
it is suspect.
All this being so, how could that Board con-ceivably reach a confident judgment that the public health and I
safety does not demand a dewatering. system without first de-e i
ciding whether 0.12g, or instead some higher acceleration value, is the proper point of reference?
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To be sure, explicit language contained in a notice of hearing or its equivalent is entitled to respect even if it i
gives rise to an undesirable result subsequently repudiated by the promulgator of the document.
Thus, irrespective of its i
obvious unattractiveness, we nonetheless might be compelled to endorse the licensee's thesis had, in so many words, either of the relevant orders defined the issues to be litigated in ter=s of the 0.12g value.
But, as we have seen, neither order did I
so.
Despite the reference in the show-cause order to an " earth-quake with peak ground surface accelerations of 0.12g or less" I
(see p.
6, supra), no specific value was mentioned in the statement of the issues to be considered in any hearing on l
4 P
. 4 the order.
Rather, as earlier noted, those issues were said to be simply whether a site dewatering system should be de-signed and then installed by a particular date.
Significantly, the Commission's July 29 order not merely framed the issues in identical fashion but also did not allude at all to the 0.12g value.
In these circumstances, the two orders are susceptible of the reading that, while the show-cause order reflected the staff's " conservative" assumption of a maximum 0.12g accelera-tion at the La Crosse site, 1! it was not the h'RR Director's (or the Commission's) intent to foreclose examination of the validity of that premise in any hearing which might ultimately be held on the need for a site dewatering system to obviate liquefaction.
In adopting that reading, we need add only that the li-censee's reliance on the Co= mission's recent Marble Hill deci-sion 0[ is misplaced.
As the staff correctly observes (Br.
pp. B-9), that decision stands for two propositions:
(1) an enforcement proceeding lawfully may be limited to the consid-eration of the remedy proposed by the enforcement order; and 1/
see discussion in that order beginning at p.
2.
B/
Public Service Co. of Indiana (Marble Bill Nuclear
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Generating Station, Units 1 and 2), CLI-80-10, 11 WRC 438 (1980).
O o
(2) a person may not obtain a hearing on an enforcement order on the ground that the order should have granted more exten-sive relief.
Neither of these propositions comes into play here.
Although we conclude that the Licensing Board has been clothed with the authority to inquire into the extent of the seismic hazard at La Crosse, that inquiry will, as it must, be conducted in the context of the appropriateness of the precise remedy prescribed in the show-cause order:
the design and in-stallation of a site dewatering system.
In other words, no one (least of all the Licensing Board) has suggested that, depending upon what "g" value is eventually assigned to the La Crosse SSE, some other remedy might be prescribed.
i The certified question is answered as set forth above.
It is so ORDERED.
FOR THE APPEAL BOARD b.bd bh C. J Qn Bishop
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Secretary to the Appeal Board 9