ML20058A461
| ML20058A461 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 04/06/1981 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AIA, TASK-SE SECY-81-220, NUDOCS 8110280656 | |
| Download: ML20058A461 (31) | |
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AD. JUDICATORY ISSUE rrcn:
. =. u n Assistad. fh u=n-9ansel EQahOf Subdect:
Cornission Fieview of ALAB-603 (Florida Fower and Light Company)
Facility:
St. Lucie Nuclear Pcwer Plant, Unit 2
Purpose:
To propose a Mercrandum and Order I'i s c u s si en :
This is te present a prcpesed Menorandun and Crder concluding Cermissien review cf the fc11cw-ing two generic 'ssues raised by ALAB-603:
(1) i~nat are the generic implications of using i
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.clant des' ~n and operation?
1 (2) Granting the need for protective i.easures against '_ css cf all AC pcwer for some reascnable pericd cf time, is designaticn of station tlack-
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randu cla"ifying ALAB-603 was issued by twc ce:-
bers cf the Appeal Beard who issued that decision
[ Attach =ent 3].
The applicant Ficrida Power and Light Oc=pany filed a brief challenging the Com-
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Reccmmendation:
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ri::terald Assistant Ger.eral Counsel DISTRIBUTION:
Comissioners Comission Staff Offices Attachments:
Secretariat 1.
URO staff triefs 2.
AIF brief 3
Appeal E:ard Kemo i
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Florida Fewer & Light 'crief 5
Proposed Order This paper is tentatively scheduled for affirmation at an Open Meeting during the week of April 27, 1981.
Please refer to the appropriate ileekly Commission Schedule, when published, for a specific date and time.
Commissioners' comments or consent should be provided to the Office of the Secretary by c.o.b. Tuesday, April 21, 1981.
Comission Staff Office comments, if any, should be submitted to the Comissioners NLT April 14, 1981, with i.n information copy to the Office of the Secretary.
If the
-paper is of such a nature that it requires a d t onal time for analytical review and dii comment, the Commissioners and the Secretariat should be apprised of when comments j
may be expected.
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01/12/81 t-D Ui;ITD STATES OF ' A". ERICA.
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Unit 2)
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NRC STAFF RESPONSE TO C0ttISSI: 'S DECEt.:ER 12, 19 80 FE'+0R A' :.
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I.
INTRODUCTIO*:
On December 12, 1980 the Ccomission issued a Memorandun and Order in which it indicated that it had decided to reconsider its previous detemina-tion not to review the decision of the Atomic Safety and Licensing Appeal Board in ALAS-603.1/ The Commission directed the Staff to file a brief concerning two generic issues which it felt were raised by the Appeal Board's decision. Those issues are:
(1) Knat are the generic implicatier.s cf usir.; the threshold probi-bilities in Section 2.2.3 -of the Standard Review Plan as guide-lines in detemining the design basis events to be used for plant
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design and operation?
(2) Granting the_ need for protective measures against loss of all AC power for some reasonable period of time, is designation of station blackout as a design basis event the appropriate regulatory frame-work in wnich to consider such measures pending completion of the Staff ge.7eric study TAF-A-M?
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Florida Power & Light Co. (St. Lucie Unit 2), ALAS-603,12 NRC 30 (1980).
}
The Staff will address the two identified issues in this brief.
II.
B':KG 000'.0 ine A;;4a1 Board affirte:-Int Licensin; Soard's Initial Decision author-izin; issuance of a construction permit for St. Lucie Unit 2 in October of 1977.1/ However, the Board retained jurisdiction ever allegations which were made by Robert D. Pollard in a letter to the Attorney General of the Those allegations concerned the reliability of the offsite United States.
power grid serving the St. Lucie f acility. As a part of its review of those alle;ations, the Appeal Board pesed a nanber of quesnons concerning the design of the St. Lucie facility.
Subsequently, the Appeal Board cetermined that an evicentiary hearing would be held to explore the stability of Florida Power and Light's electrical grid and the reliability of AC power for St.
Lucie Unit 2.
The Appeal Board summari:ed its concerns as involving St. Lucie's compliance with General Design Criterion 17 (dealing with offsite and onsite power systen requirements); an analysis of the probability of and consequences tnet r.icht result from a loss of offsite porter with a siraltaneous failure of onsite power; whether that sequence of events should be guarded against in designing the plant ("that is, whether it should be a ' design basis' event");
the reasures that might be taken to assure or increase a system reliability; and any ongoing or planned improvements that might enhance the reliability of the FP&L sys tem.
( ALAS-6C3,12 NRC 34.)
In the course of its cecision the Appeal Board recognized that the Office of Nuclear Reactor 2/
ALAB 435, 6 NRC 541 (1977), af firming LBP-77-27, 5 NRC 1038 (1977).
Regulation had designated station blackout as an " unresolved safety issue" The Board and had taken a number of actions in connection with this issue.
noted however that no final plan for resciution of the ratter had been arrived at and that a final plan was not estimated for completion until 1952.
(12 NRC 46, fn. 55.)
The Appeal Board was of the opinion that its resolution of the issue for St. Lucie Unit 2 could not wait the completion of the Staff's generic review.
The Appeal Board found that St. Lucie Unit 2 met GDC-17 but that loss of offsite power at St. Lucie was not a highly improbable event and that the This led redundant emergency diesels were not the selves highly reliable.
the Board to the conclusion that a complete loss of AC power (station black-The Board out) rust be considered a design basis event for St. Lucie Unit 2.
required that the Applicant's Final Safety Analysis Report include an analysis demonstrating the ability of St. Lucie to operate through station blackout and a description of training programs and procedures for station operation during a blackout transient and for the restoration of AC power.
Neither the Staff nor the Applicant has sought Co : mission review of the However, as a part of the Commission's review of Appeal Board's decision.
materials related to TAP-A-44, certain memoranda from members of the Staff In a memorandum for concerning ALAB-603 came to the Comission's attention.
Harold R. Denton, Director, Office of Nuclear Reactor Regulation, from Robert M. Bernero, Director, Division of Systems and Reliability Research, Office of Nuclear Regulatory Research, Mr. Bernero suggests certain impacts which could occur if ALAS-603 is interpreted to endorse the use of Standard Review Plan Section 2.2.3 as a numerical basis for determining what kind of
4 ac cid er.: sequences Boards should look at.
The Co. mission was concerned in its De:e-bsr 12 !!enerandu and Order
".at this raised generic issues regard-ing the impact of the Appeal Board's decision on the regulatory process and calle: fcr the brief 'herewitt. bein; filed.
On Decenbir 22, 1950 two of the Administrative Judges who participated in the decision rendered by the Appeal Board in ALAB-603 issued a Memorandum expressing their concern that the Commission was interpreting the ALAS-603 decision to be grounded upon the use ci the "inresncic probatilities"in Sectier. 2.2.3 of the Standard Review Flan.
In the Memorandum the Board indicates that its detennination that station blackout should be considered a design basis event at St. Lucie Unit 2 did not rest on any particular SRP probability value but rather upon the Board's independent assessrent of the probability of this event as established by the evidentiary record.
To properly context the Staff's discussion in the remainder of this brief of the issues presented by the Commission's Memorandum and Order another adjudicatory decision should be mentioned.
The station blackout event which is under consideration in the St. Lucie docket is an unresolved In Gulf States Utilities Company (River Bend Station, Units 1 safety issue.
and 2), ALAB-444, 6 NRC 760 (1977), the Appeal Board established a standard of evidence which must be met concerning unresolved generic safety issues which The have implications for the particular reactor being reviewed by a Board.
River Bend Appeal Board found that unresolved issues could not be disregarded in individual licensing proceedings because they had generic applicability but that tnere must be some explanation concerning why operation or construc-tion could proceed even though an overall solution had not been found.
5 The explanation furnished es>st be sufficient to enable a licensing boarc to detemine whether '-
u.c. problem has already been resolved for the react:r un:er study; (2) tnere is a reasonable basis for concluding that a satisfactory solution will be obtained before the reactor is put in opera-tior.; cr (3) tne problem would have no safety ic;,li:a. ions until af ter several years of reactor operation and, should it not be resolved by then, alternative means will be available to insure that continued operation (if pemitted at all) would not pose an undue risk to the public.E Tast A: tion Pian A-44 (Station Blackout), apprcued in July 1980, states the technical issue to be:
(a) whether the probability of station blackout r,ay be too high, and (b) what the consequer.ces of station blackout are; that is, whether severe core damage may result. Thus, to properly resolve the station blackout issue in St. Lucie, consistent with the River Bend decision, the Appeal Board had to detemine the applicability of TAP A-44 to St.Lucie.1/ Of course, by its wn tems TAP A-44 requires an examination of probability of occurrence before a conclusion can be reached concerning the applicability of the issue to a particular reactor.
III.
AR3UMENT Section 2.2.3 of the SRP Should Not Be Used as a Guideline in A.
Detemininc Desien Basis Events and Is Not Recuired by ALAB-603 The first issue designated by the Commission for discussion in the context of ALAS-603 is the use of Section 2.2.3 of the Standard Review Plan.
See Summary of River Bend at n.6, Virginia Electric and Power Co.
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(Nortn Anna Units 1 & 2), ALAS-491, 8 NRC 245, 248 (1978).
The Staff had presented the status of TAP A-44 to the Appeal Board as a 4/
part of its evidentiary case at the hearings in December 1979.
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Memorandur and Order specifically affirms The Codssion's December 12, 1930 At issue is AllE-C2 f:
thE St. Lv:ie c tstructi:n peWt prc: serin;.
whether A.AB-603 and by implication ALAB-444 (River Bend) have generic Given 16.5 im:licatf--! warranting Co--ist cr. dire:tien or cle ificaten.
i Appeal Board's clarification, it is clear that ALAE-603 sh:uld nct be it..
preted to mandate use of Section 2.2.3 of the Standard Review Plan to establish threshold probability numbers for determining design basis events at :. :tsi: :ct de.irminn.,
hows,er, it Secticr. 2.2., were tc be :a:
the design basis events to be used for plant design and operation, it w There are a large number of have a severe impact on the regulatory process.
accident sequences with estimated probability of occurrence (frequency greater than 10~7/ reactor year which could produce or result in co If Staff resources were to be used to evaluate each or severe core damage.
of these sequences, particularly those at the lower end of this range, substantial additional staff personnel would be recuired without achieving a proportional reduction of risk to the public health and safety due Unless Staff resour:es were significantly sw likelihood of occurrence.
augmented, diversion of current resources to carry out such evaluat could actually result in an increase in risk to public health and safety.
Systematic efforts to identify the risk dominance sequences fo are underway by the Staff.
Station Blackout Should Be Considered as Part of the Design Basis o Nuclear Power Plants and Designating TAPA 44 a Design Basis Event.
B.
Is an Acoropriate Reculatory Framework in Which to Consider It.
The second issue raised by the Comission's Order is whether desig station blackout as a design basis event is the appropriate regulatory
7 framewcrk in which to consider protective measures acainst loss of all AC power fer some reason!ile pe-iod of time.
ALA5-f:3 does not s;ecifically define design basis event, although it is evident that the Appeal Board only used the term to denote those events which if not denit with, made less probable or mitigated could pose undue risk to the public and were sufficiently' probable that they should be considered in evaluation of plant safety.
" Design basis events" are not defined in the regulations. The term
" design basis" is defined in 10 CFR 5 50.2(a):
" Design basis means that information which identifies the specific functions to be performed by a structure, system, or component of a facility, and the specific values or ranges of values chosen for controlling
- parameters as reference bounds for design.
These values may be (1) restraints derived from generally accepted
" state-of-the-art" practices for achieving functional goals, or (2) requirements derived from analysis (based on calculation and/or e.xperiments) of the effects of a postulated accident for which a structure, system, or component must meet its functional goals."
Thus, the Appeal Board's disposition of tap A 44 in St. Lucie was con-sistent with the treatment given sequences required to be considered part of a facility's design basis.
In view of the logic cf River Send it wt, appropriate for the Appeal Board to impose the conditions it did to provide i
for adequate protection at St. Lucie foi the station blackout scenario.
Nothing in ALAB-603 requires those particular mitigative measures at other facilities nor precludes them if circumstances warrant. The Staff believes it is appropriate to provide reasonable assurance that station blackout can be acco=odated at a particular facility pending the generic resolution of tap A 4a, and is taking steps to do so. Consequently, the Appeal Board's treatment (i.e. designating station blackout a design basis event) is, in the Staff's view, the appropriate regulatory framework in which to consider
8-such measures in light of what the Board ordered to be done.
IV.
CO CLUSIO" In accordance with the foregoing discussion, the NRC Staff recomends that the Comission affirm ALA5-603 and accept the clarification issued by the Appeal Board.
Section 2.2.3 of the Standard Review Plan should not be used to determine design basis events to be used for plant design and operation. The measures required by the Appeal Board to accomodate station blackout at St. Lucie are appropriate and are etasistent with the designation of the event as one which should be considered within the design basis of the facility pending completion of the Staff generic study, TAP A-44.
Respectfully submitted, s~
Wiillam J. Olmstead Assistant Chie' Hearing Counsel f
Dated at Bethesda, Maryland this 12th day of January,1951.
UNITED STATES OF AMERICA 40 %
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NUCLEAR REGULATORY COMMISSION tri::c
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Docket No. 50-3S9 FLORIDA POWER & LIGHT COMPANY
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(St. Lucie Nuclear Power Plant,
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Unit 2)
CERTIFICATE OF SERVICE I
I hereby certify that cooies of NRC STAFF RESPONSE TO COM MEMORANDUM AND ORDER in the above-captioned proceeding served on the following by deposit in the United States mail, first clas 12, 1980 or, as indicated by an asterisk, through deposit in the Nuclear Regu Comission's internal mail system, this 12th day of January 1931.
Dr. David L. Hetrick
- Richard S. Sal: man, Esq., Chairman Professor of Nuclear Engineering Atomic Safety and Licensing Appeal University of Arizona Board Tucson, Arizona 85721 U. S. Nuclear Regulatory Comission Washington, D. C.
20555 Dr. Frank Hooper Resource Ecology Program School of Natural Resources
- Dr. W. Reed Johnson Atomic Safety and Licensing Appeal University of Michigan Board Ann Arbor, Michigan 4 S1 04 U. S. Nuclear Regulatory Comission Washington, D. C.
20555 Harold F. Reis. Esq.
Lowenstein, Necan, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D. C.
20036 Norman A. Coll, Esq.
Steel, Hector & Davis 1400 S.E. First National Bank Bldg.
Martin Harold Hodder Esq.
Miami, Florida 33131 1131 N.E. 86th Street Miami, Florida 33138
- Atomic Safety and Licensing Board Panel Terrance J. Anderson, Esq.
U.S. Nuclear Regulatory Comission-University of fiiani Washington, D. C.
20555 School of Law Coral Gables, Florida 33134
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- Atomic Safety and Licensing Apesal Bea-:
U.S. Nu: lear Regulatory Commission Washingten, D. C.
20555
- D::Letin: and Service Se: tion Office of tne Se:retary U.S. Nu: lear Regulatory Commission Washington, D. C.
20555 Mr. Samuel J. Chilk Office of the Se:retary of the Co-.ission U.S. faclear Regulatory Commission Washington, D.C.
20555 Leonard Bickwit, Esq.
General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Y
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.6' MU_ tan Wilila J. Olpstea:
Assistant Chief Hearing Counsel i
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FEB 13t98tP 3 Secretary of the Commission Ces et tWg M
U.S. Nuclear RegMatory Commission Washington, D.C.
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SUBJECT:
ATOMIC INDUSTRIAL FORUM COMMITTEE ON REACTOR LICENSING AND SAFETY COMMENTS ON GENERIC ASPECTS OF ALAB-603
Dear Sir:
In its Memorandum and Order (CLI-80-41) dated December 12, 1980, the Nuclear Regulatory Commission announced its decision to reconsider the generic aspects of ALAB-603 concerning the need to consider loss of all AC power (station blackout) as a design basis event.
In response to the Commission's invitation to interested parties to file briefs on this matter, the Atomic Industrial Forum Cottittee on Reactor Licensing and Safety would like to offer comments on the two generic issues under review:
Issue 1.
What are the generic implications of using the threshold probabilities in Section 2.2.3 of the Standard Review Plan as guidelines in determining the design basis events to be used for plant design and operation?
Comments 4
We believe that in applying the values given in Section 2.2.3 of the Standard Review Plant (SRP) as decision criteria for consideration of events such as station blackout, the ALAB has misinterpreted the staff's intent with respegt to those It is our opinion that the value s in' 'SRP 2. 2~.3',wer~e,, _
values.
intended for use in judging the need to design agai'nst not accident sequences involving multiple system or component failures such as those which would result in station blackout.
Rather, the SRP values were intended as simple screening criteria for excluding any consideration of accidents involving I
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Secretary of the Commission 2-i the presence or use of hazardous materials in the vicinity of a plant.
It does not necessarily follow, nor do we believe that failureswhoseprobabilityexceeds10gofsysge=orcomponent it was the sta ff's intent, that any se or 10-per year should be made a design basis event.
Such an interpretation would have far-reaching implications with respect to many other combinations of failures which are presently considered beyond the design basis for nuclear plants.
probabilistic risk assessmentsl/ indicate that the probab from allsourcescanbeontheorderof10jlityofcoremelt to 10-5 per year and still, in our judgement, adequately protect the health and safety of the public.
Therefore, application of values such as 10-6 or 10-7 per year as criteria for design consideration would compel incorporation of measures to prevent or mitigate the effects of many accident sequences which are insignificant contributors to risk.
The Commission has undertaken an effort 2/ to establish quan t i t a t i ve safety goals.
This effort should define the probabilities that should be used in evaluating probabilistic risk assessments and in decision-making regarding need for l
additional protective measures in plant design and operation.
L The values given in Section 2.2.3 of the Standard Review plan are inappropriate and should not be used for this purpose.
Issue 2.
Granting the need for protective measures against the loss of all AC power for some reasonable period of time, is designation of station blackout as a design basis event the i
appropriate regulatory framework in which to consider such measures pending completion of j
the staff generic study TAP-A-44?
l Comments The staff has already initiated actions / aimed at ensuring 3
that existing plants have reliable sources of AC power and are 1
capable of providing core decay heat removal for some minimum time period in the event oftotallossofACpower.
We concur with the staff's judgmenid that these actions provide an 1/ For example, WASH 1400 and the German Risk Study f/ NUREG 0735, October 1980 J/ See Section 3 of tap-A-44, July 1980 1/ H. Denton memo to Chairman Ahearne, dated Sept. 26, 1980 l
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Secretary of the Commission 3-adequate basis for continued operation and licensing pending completion of TAP-A-44.
inclusion of station blackoutAny final decision regarding the as a design basis event should be-based on comprehensive probabilistic risk assessments that include a realistic estimate of the degree of risk posed by this event sequence.
The overall estimate of risk should then be compared to the established quantitative safety goals in order to determine whether and to what extent it is necessary to consider station blackout in the design of nuclear power plants.
This decision-making process should be included in the staff generic study TAP-A-44 and a final decision regarding this matter should be held in abeyance until completion of those studies.
We hope that you will find these comments useful, and we would be pleased to discuss this matter with you or others at your convenience.
Sincerely, 7 ll ll
/;hafm-D.ClarkGibbs[' Chairman Committee on Reactor Licensing and Safety Enclosures DCG:ssl Dr. J. Carson Mark, Chairman, ACRS cc:
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD s
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Adninistrative Judges:
Richard S.
Sal =an, Chairman Dr. W. Reed Johnson t
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In the Matter of
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FLORIDA POh?R AND LIGHT COMPANY
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Docket No. 50-389
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(St. Lucie Nuclear Power Plant,
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l Unit 2)
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MEMORANDUM i
December 22, 1980
. In its order of December 12, 1980, CLI-80-41, 12 NRC the Commission announced that it would review sua sponte the
" generic aspects" of ALAS-603, 12 NRC 30 (1980).l-[
As the order correctly notes (slip opinion at p. 1), in that decision this Board determined that the total loss cf on-site and off-site AC power (i.e., station blackout) must he treated as a design basis event for Unit 2 of the St. Lucie nuclear facility.
The order goes on to state that this determination had been based upon:
calculations which showed that the probabil-ity of station blackout could exceed some threshold values in the Standard Review Plan that are used by the staff to aid in its de-termination as to whether or not protective measures are needed for certain off-site hazards.
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In that same order, the Cercission af firred the license acentrents we care::ec for St. Lucie Uni: 2.
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-Ibid.- On this reading of ALAS-603, the order -then sets forth -
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as one of the generic issues the Commission proposes to con-
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F sider as part of its review of that decision:
j What are the generic implications of using the threshold probabilities in Section 2.2.3 i
of the Standard Review Plan as guidelines in determining the design basis events to be l
used for plant design and operation?
i Slip opinion at p. 3 (footnote omitted).
t Although not expressly stated in the order, it may reason-l ably be inferred that the Commission's characterization of the l
J basis for the finding that station blackout should be considered a design basis event was derived from an in :erpretation of ALAB-603 contained in the August 22, 1980 memorandum from the Director, Division of Systems and Reliability Research, NRR, to the Direc-l ter, NRR.
(That memorandum was specifically referred to in the order (at p. 2) and seemingly played at least some.part in the l
Cetmission's decirion to review ALAB-603.)
We feel constrained i
to call to the Commission's attentien our belief that the Divisionf
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Directer misconstrued the intentions of this Soard, with the i
consequence that the first issue stated in the December 12 order (quoted above) is not presented by ALA3-603.
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specif.i. -11y, our determination that station blackout must -
l be considered a design basis event was not grounded upon the use f
of the " threshold probabilities in Section 2.2.3 of the Standard l
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Review Plan".
This is apparent from a' collective : consideration of Findings.2, 3 and 4 in ALA3-603 (12 NRC-at 64):
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Despite the diverse connections to the grid at Midway'and indications that the j
Florida Power and Light Company is. up-5 grading the reliability of its transmis-i 5
sion network, the loss of offsite power at St. Lucie is not a highly improbable j
event.
This circumstance, combined with l
the f act that the redundant emergency diesels are not themselves highly relia-ble, leads to the conclusion that a com-
_l plete loss of AC power -- station black-out -- must be considered a design basis event for a Lucie Unit 2.
In this instance, the single. failure criterion i
does not appear to provide adequate pro-l tection of the public health and safety.
i L
3.
In the event of a station blackout, a steam driven auxiliary feedwater-system l
can function to provide core cooling and the plant can apparently be maintained in a safe condition' for a number of hours 1
in the absence of AC power.
4.
There is a high likelihood that following i
station blackout, a source of AC power can be restored before events resulting from its 1 css produce reacter core damage i
or other circumstances injurious to the public health and safety.
l 12 NRC 30 at 64.
Finding 2 stemned from eviddnce to the effect that the l
I probability of loss of off-site power would be "at least 0.1 per year" (id. at 44) and that the probability that both diesel
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l generators fail to start on demand would lie in tb< range of 10 to 10~4 Id. at 46-48.
The combined probability for t$e l
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resulting complete loss of AC power was thus determined to lie
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-5 in the range 10 to 10 per year.
Id. at 52.
It was the very magnitude of these probability values which served as the basis for' our ultimate determination in Finding 2 that the station blackout sequence =ust be considered as a design basis event.
The largest of the Standard Review Plan probability values was cited in this discussion of loss of AC power.
Ibid.
It was, however, our intent there only to provide perspective as to the likelihood of " accidents and other events" which were commonly deemed credible for the purpose of nuclear power plant design.2-!
The loss of AC power event does not itself create an acci-i dent.
Id. at 4 6.
Finding 3 reflects this point, and is based 8
on pertiens of the record discussed in Section B of ALA3-603.
t
_I_d. at 52-57.
Finally, Finding 4 is a statement of the acceptabili" f of the St. Lucie plant as designed, based upon the high probability The Standard Review Plan prcbability values,10-6 to 2/
10-7 per year, were mentioned in ALA3-603 in our dis-
~~
cussion of an earlier order in this case (ALAB-537, 9 NRC 407, 415-416).
There we had posed certain ques-tions to the parties.
Recognizing, however, that these values were not intended to encompass such events as a loss of AC power, we looked to them simply as a
" starting point" for ascertaining acceptable levels of risk.
ALAB-6 0 3, 12 NRC a t 4 5.
The staff and ap-
~
plicant adopted 10-7 per year as a guideline for the analysis of power restoration times.
Id. at 46, 58, 60, and 61; see also the discussion of Finding 4 above.
that power can be restored following a station blackout before core damage or other public health and safety consequences re-sult.
A discussion of the time to restore AC power, includin'g explicitly an-equation presented by the applicant for calculating
~
the probability that AC power not be restored by a certain time following the blackout event, appears in Section C of the deci-sion.
Id. at 57-61.
In this Section, the probability values of the Standard Review Plan were used to provide guidance as to whether the power restoration ti=es calculated by the applicant and staff were acceptable.
Id. at 58 and 60-61.
In conclusion, this Board's determi.,ation that station blackout should be considered as a design basis event at St. Lucie Unit 2 hinged upon our independent assessment of the probability of this event as established by the evidentiary record.
We used the Standard Review Plan probability values to judge the reasonableness of the time periods within which the witnesses estimated that AC power could be restored.
We are hopeful that the foregoing may be of assistance to the Co=r.ission in the conduct of its review of ALA3-603.
FOR THE APPEAL BOAPS h
a w,1, w Barbara A. Tomekins Secretary to the Appeal Board
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NUCLEAR REGULATORY COMMISSION.
w.::e BEFORE THE COMMISSION (N
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In the Matter of
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FLORIDA POWER & LIGHT COMPANY
)
Docket No. 50-389
)
(St. Lucie Nuclear Power Plant,
)
Unit No. 2)
)
)
)
BRIEF OF FLORIDA POWER & LIGHT COMPANY IN RESPONSE TO COMMISSION MEMORANDUM AND ORDER (CLI-80-41) 1 On July 30, 1980 the Atomic Safety and Licensing Appeal Board (" Appeal Board"), following an tvidentiary hearing, issued a Decision concerning the need to consider the loss of all AC power (station blackout) as a design basis event for Unit 2 of f
the St. Lucie nuclear' power plant.
Florida Power & Light Co.
(St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-603 12 NRC 30.
)
Subsequently, on December 12, 1980, the Cc= mission issued a Memorandum and Order announcing its determination "to exercise its authority to review on its own motion certain implications J
of ALAB-603."
Florida Power & Light Co. (St. Lucie. Nuclear i
I Power Plant, Unit No. 2), CLI-80-41 12 NRC __.
In particular, the Commission expressed interest in two specific questions --
which it set forth -- and, further, prescribed that The parties to the review proceeding shall be the permittee Florida Power and Light Company, the Intervenors, and the NRC staff.
f f id6D-I l
-2 The staff shall file its brief no later than 30 days after the date of this Order.
The other parties may file briefs by the same date.
Reply briefs may be filed no later than 50 days after the date of this Order.
In addi-tion, because of the generic nature of the issues on review it this proceeding, the
[
Commission invites other persons to address either or both of these issues by submitting briefs no later than 50 days after the date of this Order.
Memorandum and Order, pp.
3-4.
As discussed below, Florida Power and Light Company ("FPL" or " permittee") is of the view that the Commission lacks the requisite jurisdiction to conduct the sua sponte review of ALAB-603 called for in its Memorandum and Order.
Accordingly, the instant proceeding should be terminated.
However, should the Commission reject FPL's position and determine to continue with the review, or fail to terminate the proceeding prior to the date fixed for filing reply briefs, permittee reserves its right to respond to the substantive issues identified by the Commission in the reply brief provided for in the Memorandum and Order. /
Section 2.786 (a) of the Commission's regulations provides that, "Within forty (4 0) days after the date of a decision or action by.an Atomic Safety and Licensing Appeal Board under 5 2.785
. the Commission may, in cases of exceptional legal 1/
In ary event, since the genesis of this proceeding resides in documents prepared by the Staff (see Memorandum and Crfer, p. 2) it is appropriate that the Staff have an opportunity to take the lead in responding to the specific questions posed by the Commission.
or policy importance, review the decision or action on its own motion."
Commission regulations also provide that, in cases involving the filing of, among other things, briefs with "the Commission itself, as opposed to officers who have been delegated authority to act for the Commission, the Secretary or Assistant Secretary are authorized to.
[e]xtend the time for the Commission to grant review on its own motion under l
t 10 CFR 2.7 86 (a). "
See 10 C.F.R. 5 2.772(f).
Subsequent to the issuance of ALA3-603 last July, a number of Orders were issued "[p]ursuant to 10 CFR 2.772, [ extending]
the Cemmission's time to determine whether to review ALAB-603."
E.c.,
Order dated October 6, 1980.
However, as described in the Memorandum and Order itself, upon expiration of the last such Order, "[o]n October 14, 1980, the time expired for Com-mission sua sponte review of ALAB-603."
Memorandt: and Order,
- p. 2 (footnote omitted).
In addition, the cited case law in no way supports a con-1 trary result.
The scle asserted basis of authority for the Commission's announced intention to review ALAB-603 is contained in one sentence appearing on the second page of the Memorandum and Order:
Because judicial review of final Commission orders is governed by the Hobbs Act, 28 U.S.C.
2347, the Ccmmission has 60 days in which to reconsider an otherwise final decision.
American Farm Lines v.
Black Ball Freicht, 397 U.S. 523, 540 (1970), Pan American Petroleum I
Corp.
- v. Federal Power Comm., 322 F.2d 999, 1004 (D.C. Cir.
1963,'.
1 4
l l
4 1
Neither case, however, supports review in instant proceeding.
It is true that, in American Farm Lines, the Court found that the Interstate Commerce Commission ("ICC") had properly r
initiated reconsideration of a decision, even though judicial i
i review had already been sought.
American Farm Lines v. Black Ball Freight, 397 U.S.
532, 540.
However, in its decision the Court relied upon a specific statutory provision empowering the ICC "at any time to grant rehearings as to any decision, order, or recuirement and to reverse, change, or modify the same."
Id.
No similar provision applies here.
In the Pan American Petroleum case the reopening of a proceeding by the Federal Power Commission ("FPC"), more than I
three months after issuance of the underlying order, was also upheld.
See Pan American Petroleum Corp.
v.
FPC, 322 F.2d 999, 1001-04 (D.C. Cir. 1963).
There, however, timely petitions for reconsideration had been filed with the FPC.
The 60-day period for seeking judicial review thus ran from the date of the FPC's denial of those petitions.
Since the reopening was ordered within this period, the agency's action was upheld by the court.
See id., 1003-04.
Here, of course, no party sought reconsideration of ALAB-603, and the time available for seeking judicial review expired 60 days later.
In any event, the NRC's own regulations operated to pre-clude any Commission review cf ALAE-603 after October 14, 1980.
Those regulatiens prescribe a system under which "It]he Appeal Board is authorized to render final decisions.
See 10 C.F.R.
5-2 S
l SS 2.785 (a) and 2.770."
New Encland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 99 (1st Cir. 1978).
To be sure, the Commission may review a decision, either on its own motion, or on the basis of a petition by one of the parties.
- However, the time when either action may be taken is specifically limited by 10 C.F.R. 5 2.786.
No party petitioned for review within the period fixed, and the time for review on the Com-mission's own motion admittedly expired.
Memorandum and Order, p.
2.
Consequently, even if the Commission might otherwise have technical jurisdiction under the Hobbs Act to reconsider ALAB-603, it cannot ignore the procedures and limited period for review established by its own regulations, q
,e An administrative agency is bound not only by the precepts of its governing statute, but also by those incorporated in its own regulations.
- See, e.c.,
United States v. Nixon, 418 U.S.
683, 694-95 (1974); Nader v. NRC, 513 F.2d 1045, 1051 (1st Cir.
i 1975).
"It is, of course, a fundamental tenet of our legal system that the Government must follow its own regulations."
VanderMolen v.
Stetson, 571 F.2d 617, 624 (D.C. Cir. 1977).
As adopted, the Commission's regulations relating to " finality" j
\\
introduce at least some elements of definiteness into an otherwise complex and lengthy administrative system.
License applicants, other parties to Commission proceedings, and the courts should be able to rely upon the framework established.
Recensideration, in the existing circumstances, would disturb
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the established system and inject. unnecessary confusion. /
For the reasons discussed above, the Conmission should t
terminate this proceeding for lack of jurisdiction.
I Respectfully submitted, E
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~~ Michael A. Bauser i
Lowenstein, Newman, Reis &
Axelrad 1025 Connecticut Avenue, NW Washington, DC 20036 Telephone:
(202) 862-8400 i
i Norman A. Coll Steel, Hector & Davis 1400 Southeast First National Bank Building Miami, FL 33131 Telephone:
(305) 577-2800 Attorneys for Florida Power &
Light Company l
Dated:
January 12, 1981 k
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Chis is not to say, of course, that the Commission is without power to address any issues raised in ALAB-603 i
which it feels are worthy of consideration.
For example, the Commission could initiate a rulemaking proceedinc and, thus, provide guidance with respect to any matter of concern by means of an adopted regulation.
See 10 C.F.R.
I 5 2.801.
In fact, it appears that Chairman Ahearne may have been inclined toward just such an approach.
Memorandum and Order, p.
3n.4.
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