ML20058G545
| ML20058G545 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 07/30/1982 |
| From: | Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8208030358 | |
| Download: ML20058G545 (18) | |
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00CKETED USNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3)Au_ h-
- u 1 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 'yj[;Y In the Matter of )
)
DUKE POWER COMPANY, et al. ) Docket Nos. 50-413 -
) 50-414 (Catawba Nuclear Station -)-
Units 1 and 2) )
APPLICANTS' RESPONSE TO LICENSING BOARD'S QUESTION REGARDING INTERVENORS' SERIOUS ACCIDENT CONTENTIONS I. INTRODUCTION .
By Memorandum and Order'~of March 5, 1982, this Atomic , ..
Safety and Licensing Board (" Licensing Board") ruled on proposed contentions filed in the captioned proceeding by Carolina Environmental Study Group ("CESG") and Palmetto Alliance (" Palmetto") (hereinafter referred to collective-ly as "Intervenors"). Therein the Licensing Board denied Intervenors' Contentions regarding serious accidents (Pal-metto's Contentions 5, 9 and 31 and CESG's Contention 2) due to Intervenors' failure to set forth a credible, Catawba-soecific accident scenario upon which the conten-tions could be based. Subsequently, on March 31, 1982, Intervenors jointly moved the Licensing Board for recon-sideration of'its rulings regarding, inter alia, their serious accident contentions because "Intervenors believe that a variety of plainly credible, Catawba specific 820 '
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- accident scenarios are implicit in their contentions as originally filed. . . . " Palmetto Alliance and Carolina Environmental Study Group Responses and Objections to Order Following Prehearing Conference" at p. 5 ("Interven-ors' Motion"). Therein, Intervenors set forth four acci-dent scenarios and requested that, based on such scenar-ios, the Licensing Board " revise its Order accordingly or certify the question of the litigation of these issues for determination by the Commission or Appeal Board." Id.
Applicants and the NRC Staff responded to Intervenors' .
Motion on April 15, 1982 and April 28, 1982, respectively.
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By Memorandum and Order of July 8, 1982, the Licen- ,,
sing Board requested that the NRC Staff and Applicants
" comment on whether any of . . . [the four scenarios ad-vanced by Intervenors] may form the basis for an accept-able contention." In response thereto, Applicants main-tain that (1) Intervenors new accident scenarios consti-tute untimely filings without good cause and thus, should be denied,1 and (2) in any event, as discussed below, 1 Intervenors' new accident scenarios constitute con-tentions filed nearly four months after the time within which contentions in this proceeding were to be filed.
Intervenors have failed to address the late-filing cri-teria set .forth in 10 CFR $2.714(a) . Applicants submit that Intervenors' failure to address such criteria, including a justification for late filing is fatal to their request for admission of these new contentions.
Applicants are cognizant of the Licensing Board's contrary view and, thus, the above objection serves to preserve Applicants' position. See Memorandum and Order of July 8, 1982 at p. 12.
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Intervenors new accident scenarios do not warrant admis-
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sion of previously rejected contentions. Further, Appli-cants maintain that Intervenors have failed to provide adequate justification for certification of these issues to the Commission or Appeal Board.2 II. ARGUMENT Intervenors have listed four specific scenarios in their Motion, viz., off-site power failure, ATWS, fatigue failure of the reactor pressure vessel, and stud bolt failure. Applicants maintain that Intervenors in each ,
instance have failed to postulate a credible accident scenario at Catawba, a necessary prerequisite identified by this Licensing Board in its March 5, 1982 Memorandum 2 Requests for interlocutory review of Licensing B5ar'd decisions, as Intervenors seek here, are not to be granted absent a showing that ' the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner." Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NRC 309, 310, quoting directly from Public Service Co. of Indiana (Marble ~
Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190, 1192 (1977). Intervenors have made no such showing. Commission regulations (10 CFR
$ 2.71d(a) and 2.730( f)) and case law leave no doubt that absent such a special showing a Licensing Board's ruling denying a contention is not an appealable order where the party's status is not affected. Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-286, 2 NRC 213, 214 (1975). See also Boston Edison Company, et al. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-269, 1 NRC 411, 413 (1975).
and Order at pp. 27-28. Thus, Applicants submit that Intervenors are precluded from litigating such scenarios in this proceeding.
As will be discussed, each of Intervenors' accident scenarios is premised upon the failure of regulatory re-quirements. It is well established that compliance with the Commission's regulations provides reasonable assurance that a facility can operate without undue risk to the public health and safety. See " Applicants' Response to Contentions Filed by Palmetto Alliance" at pp. 38-39 and 48-53 (December 30, 1981) (" Applicants' Response to Pal-metto's Contentions") and Applicants' Response to Conten-tions Filed by CESG" at pp.. 42-47 (December 30, 1981)
(" Applicants' Response to CESG's Contentio'ns"). Absent a showing of special circumstances, such regulations can'not be challenged in individual licensing proceedings. 10 CFR
$2.758. See Applicants' Response to CESG's Contentions at pp. 9-12. See also 47 Fed. Reg. 12941 (March 26, 1982) wherein the Commission stated that the showing of special circumstances required by 10 CFR $2.758 was "a much stric- .
ter standard" than the current requirements for acceptance of contentions in licensing proceedings.3 i 3 Applicants note that where Intervenors have attempted to raise "special circumstances" in their Motion, such attempts fall far short of the Commission's regulations in this area. For example, Commission regulations state that the sole ground for waiver or exception of any rule or regulation in an adjudicatory' preceeding (footnote continued)
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Integrated into such basic administrative practice, the Commission in recent decisions in the TMI proceeding (i.e., Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), CLI-80-16, 11 NRC 674 (1980) and Order of September 26, 1980 (Docket No. 50-289 (Restart)) stated that issues beyond regulatory require-ments could be litigated only if intervenors could set forth a credible accident scenat io resulting in off-site doses in excess of 10 CFR Part 100 guideline values. Id.
Significantly, the Commission did not state that the re-quirements of 10 CFR $2.758 requiring a showing of special circumstances to challenge Commission regulations were to be waived in setting forth such credible accident scenar-ios. Indeed, in the TMI proceeding, prior to authorizing litigation of hydrogen generation above the parametets set forth in 10 CFR $50.44, special circumstances were shown to be present (i.e., operator interference with the ECCS during the TMI accident which resulted in lack of core cooling and excessive generation of hydrogen) . TMI,
( footnote continued from previous page) involving. initial licensing "shall be that special circumstances . . . are such that application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted." 10 CFR $2.758(b). Further, a petition seek-ing waiver.or exception of Commission rules or regula-tions must by affidavit make a prima facie showing that such special circumstances do exist. 10 CFR $2.758(b),
(c), and (d). See also Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 584-5 (1978).
0 supra, 11 NRC at 675-6. See also Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2),
ALAB-669, 15 NRC , Slip op. at 3 (March 30, 1982) where- '
in it was noted that litigation of hydrogen generation in a
the McGuire proceeding was based upon the fact that such an accident had occurred at TMI.
Applicants submit that to allow Intervenors to chal-lenge the adequacy of Commission regulations in individual licensing proceedings under the guise of a " credible acci-dent" theory without first establishing special circum- ,
stances as required by 10 CFR $2.758 is clearly contrary to Commission regulations, case law and indeed, rational agency practice. See Applicants' Response to CESG's Con-tentions at pp. 9-11. If such a condition' prevailed, every substantive NRC regulation would be subject to'chal-lenge in individual licensing proceedings not because spe-cial circumstances brought such regulations into question, i
but merely because an Intervenor had a vivid imagination.
Indeed this may be the case here where Intervenors state that the four scenarios presented are to be recombined into an unspecified number of additional scenarios. Such a result clearly can not be accepted.
Applying these standards here, Intervenors, in at-tempting to set forth credible accident scenarios, have apparently defined " credible accidents" as being bound only by the limit of imagination, irrespective of the O
number of NRC regulations that must fall to arrive at the '
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" desired" serious consequences. For example, in their first scenario, regarding off-site power, failure,- Inter-venors hypothesize the complete loss of all off-site power and "[h3alf of the diesel electric generating capacity."
Intervenors' Motion at p. 6. Intervenors assume that such loss would result in insufficient power capability for -
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safe shutdown and after some undefined period'of time massive fuel failure. Intervenors' Motion at pp. 6-7.
Intervenors apparently choose to ignore General De- "
sign Criteria 17 and 18, 10 CFR Part 50, Appendix A, which set forth the Commission imposed ' requirements, including multiple redundant power sources, single-failure criterion 7 and inspection and testing, that provide reasonable assur-ance that such a situation will not occur. Indeed, '
General Design Criterion 17 requires that onsite power -
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capabilities be adequate to assure plant safety even in the event of loss of one half of the diesel capacity at Catawba, as Intervenors postulate here. Thus,.even assum- [
ing loss of power as Intervenors hypothesize, compliance with regulatory requirements assure that there'is still ~
adequate power capabilities to assure plant safety. In that Intervenors do not contest Applicants' compliance with such regulations (set forth in Applicants' FSAR at Sections 8.3.1.2.1 and 8.3.1.2.2), Intervenors' position is either totally without basis or Intervenors must be G
advocating that such regulations are inadequate.4 In that Intervenors have made no showing of special circumstances to contest auch regulations as required by 10 CFR $2.758, Applicants submit that Intervenors are precluded from litigating these issues here.5 With regard to Intervenors' third 6 scenario, concern-ing fatigue failure of the reactor pressure vessel, Inter-venors hypothesize the failure of the NRC and Applicants to adequately correct speculative. problems with Catawba's.
steam generators. -Intervenors speculate that over a 30 year period this uncorrected problem will " require shut-down and startup on a much greater rate than designed for. . . ." Further, Intervenors postulate that during 4 Applicants note that to the extent Intervenors question compliance, Intervenors have totally failed to seE forth a basis with specificity for such an assertion.
5 Applicants are cognizant of the litigation of such issues in the St. Lucie proceeding. Florida Power &
, . Light Company (St. Lucie Nuclear Power Plant, Unit No.
2), ALAB-603, 12 NRC 30 (1980). There, however, the concern (special circumstances) giving rise to such litigation was the questionable off-site power grid system in the peninsular Florida area. Id.
6 With regard to Intervenors' second scenario, Applicants l' note that Section 3.5 of the Catawba FSAR sets forth a detailed analysis of actions which provid e reasonable assurance that a turbine blade will not become a damag-ing missile as postulated by Intervenors here. In any
, event, Applicants maintain that litigation of Interven-l ors' second scenario regarding an ATWS event is barred by ongoing Commission rulemaking. 46 Fed. Reg. 57521 (November 24, 1981). See also Applicants' Response to l Palmetto's Contentions at pp. 84-85. This Licensing Board has already stated that it is of a similar view.
See Memorandum and Order of March 5, 1982'at p. 31 and l Memorandum and Order of July 8, 1982 at p. 10.
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the 30 year period, Applicants and the NRC Staff are either unaware of or choose to ignore that excessive cycling increases the nil ductility temperature ("NDT").
Intervenors conclude that at some future date, after a plant-shutdown, the plant " restart is too rapid" (with the temperature of the reactor vessel below the NDT) resulting in brittle failure of the reactor vessel.
Therefore, Intervenors' scenario rests upon the pre- ,
sumed and totally unsupported position that over a 30 year period the Applicants and NRC would fail to correct specu- .
lative problems or to appreciate their potential conse-quences. More specifically,-Intervenors contend that Applicants will fail to recognize and take appropriate corrective action for potential changes in the Catawba NDT. However, Intervenors have overlooked Commissio'n regulations that mandate the continual surveillance of and periodic modifications to the operating criteria to take into account changes to the NDT. That is Appendix H to 10 CFR Part 50 which sets forth a detailed and comprehensive reactor vessel material surveillance program to monitor ~
changes in the fracture toughness properties of the vessel as a result of, inter alia, thermal cycling, Intervenors precise concern here. The data from the surveillance program is used to determine "the conditions under which the vessel can be operated with adequate margins of safety against fracture throughout its service life." The
explicit fracture toughness requirements for the vessel are set forth in Appendix G to 10 CFR Part 50. Inservice requirements include the provision that the conditions for operation must be periodically updated, if necessary, to account for the results of the Appendix H surveillance program (Sections V.A and B of Appendix G). Further, such requirements specify that if conditions can not be main-tained within the bounds of acceptable vessel operating parameters, the plant must be shutdown (Section V.C of Appendix G).
In short, the NRC has set forth detailed regulations regarding the surveillance and modification of vessel operating parameters, such as NDT, in response to the operating history of the plant. Applicants' compliance with such regulations is set forth in Applicants' FSKR at Sections 5.3.1.5, 5.3.1.6 and 5.3.2.1. Intervenors appar-ently'do not question compliance with such regulations, or, to the extent compliance is questioned, Intervenors provide no basis with specificity for such assertions.
Thus, Intervenors apparently are of the view that l
such regulations are inadequate to provide reasonable assurance that thermal cycling throughout a plant's life will be adequately considered in periodically determining appropriate operating conditions, including NDT for the l
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reactor vessel. In that Intervenors have made no showing of special circumstances for challenging such regulations, Intervenors' scenario must fail.7 Turning now to Intervenors' final scenario regarding stud bolt failure, Intervenors note that in 1971 the Com-mission analyzed the problem of corrosion of stud bolts due to borated water and required corrective action to protect against such corrosion, e.g., surface treatment of such bolts, procedures to keep bolts free of borated water, and visual and non-distructive inspections of such bolts during refueling outages. (See Applicants' FSAR at Section 5.3.1.7). Intervenors hypothesize that such generic corrective actions are inadequate and such inade-quacies have not been discovered during the ensuing years.
Thus, Intervenors speculate that during a refueling'ou'tage borated water will come into contact with the stud bolts, and during the following twelve-month period, corrosion 7 Applicants also note that Intervenors' scenarios re-garding fatigue failue of the pressure vessel and stud bolt failure would result in a breach of the reactor coolant pressure boundry integrity greater than the size set forth in Commission regulations as bounding design requirements for emergency core cooling system operation.- See 10 CPR $l50.46(a)(1) and (c)(1). Such Commission regulations were developed only after extensive and exhaustive analysis of, inter alia, i
potential accident modes. Intervenors' attempts to i postulate an accident outside these parameters constitutes an attack on Commission regulations, necessitating the required showing of special circumstances for litigation, not present.here. See also Consolidated Edison Company of New York (Indian Point Unit No. 2) CLI-72-29, 5 AEC 20, 21 (1972).
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due to such borated water will be so rapid that one of the
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bolts will fail. Intervenors postulate that the failure of one bolt will result in an "unzippering" effect causing all bolts to fail, allowing the vessel head to be pro-jected upward, breaching containment. .
At the outset, Applicants note that Intervenors have totally failed to provide any basis or support for their position that preventative action for the problem of cor-rosion of the vessel head stud bolts by borated water is inadequate to protect against accelerated corrosion and short-term failure of such bolts. Further, Applicants note that the lynchpin of Intervenors' scenario, the "un-zippering ef fect", has been unsuccessfully litigated by CESG at the Catawba construction permit st' age (1 NRC 626, 642-6 (1975)). There the Licensing Board stated as
follows:
(b) The Board recognizes that, should one weak stud nevertheless fail . . .,
the vicinal nuts could have additional loads applied at much faster rates than the loading rates actually ap-plied during yield and ultimate strength testing. Nevertheless, due to the precautions required by the ASME Code during heat treating, and the subsequent testing required, the Catawba bolting material retains con-siderable toughness. Moreover, im-posed stresses are still much less than yield strength. For these rea-sons, the Boards believes it extremely doubtful that vicinal nuts would fail under these conditions.
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(c) The Board agrees with Applicant witness Gangloff that one can always conjure up a hypothetical series of improbably failures and events which could lead to calculated pressures sufficiently high to cause the " unzip-pering" effect Intervenor suggests.
However, the Board believes that such hypothetical accidents clearly fall into that small residuum of extremely improbable accidents (Class 9) for which protective measures are either impossible or so impractical and cos-tly as to be deemed unnecessary. [1 NRC at 645-6, footnote omitted.]
In that this issue has already been fully litigated by one of these Intervenors (CESG and its representative, Jesse Riley), Applicants maintain that, pursuant to precepts of res judicata and collateral estoppel, Intervenors are precluded from litigating this issue here. (See Appli-cants' Response to Palmetto's Contentions and CESG's Con-tentions at pp. 13-22 and 12-18, respectively.) Thts is particularly the case here, where Intervenors have not even attempted to provide additional or new information regarding the "unzippering effect" issue. Further, not-l withstanding collateral estoppel and res judicata argu-ments, Applicants maintain that in the face of the Con -
struction Permit Licensing Board's finding regarding the extreme improbability of the unzippering effect, Inter-venors indeed must clearly provide a sufficient chowing I
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that such an effect is credible. Applicants submit that Intervenors have failed to do so. Thus, this scenario must also fail.8 In sum, Applicants submit that Intervenors' accident scenarios, wherein numerous pieces of safety-grade equip-ment designed to strict NRC requirements with redundant power sources and independent, separated operational trains, all suddenly fail to operate, despite detailed NRC rulemaking proceedings that established the adequacy of such systems, cannot be litigated absent a showing of .
special circumstances required by 10 CFR $2.758. Inter-venors have raised no such special circumstances that ,,
would warrant litigation of Commission regulations in this
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licensing proceeding. Further, Intervenors have not at-tempted to demonstrate the credibility of such scenarios.9 Rather, Intervenors' position is apparently that Commis-sion regulations are inadequate and the hypothesized acci-dents listed in Intervenors' Motion may occur as a result of such inadequacies. Applicants submit that, without more, such bald assertions cannot serve as the basis for i
I 8 See also, Footnote 7, supra.
9 Applicants submit that Intervenors' argument that hypo-thetical accidents are credible because the NRC has on-going studies regarding such accidents is totally with-out merit.
litigating Commission regulations in individual licensing proceedings under the guise of a " credible accident" theory, or for that matter under any theory. Further, with regard to Intevenors' scenario regarding stud bolts, Applicants submit that legal precepts of res judicata and collateral estoppel bar litigation of this issue in this proceeding.
Applicants note that if Intervenors have concerns about the adequacy of Commission regulations with regard to these accident scenarios, which Applicants note are generic and not Catawba-specific, the appropriate forum to address Intervenors' concerns is before the Commission (i.e., a petition for rulemaking pursuant to 10 CFR
{2.802) and not in this licensing proceeding.
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III. CONCLUSION From the foregoing, Applicants submit that Inter-venors (1) have failed to provide a Catawba-specific, credible accident scenario upon which a contention can be based, and (2) have failed to provide an adequate justifi-cation for certification of this issue to the Appeal Board t . _ __m
or Commission. Thus, Applicants maintain that Intevenors' request for reconsideration of the Licensing Board denial of their serious accident contentions or certification of the issue must be denied.
Respectfully submitted,
/Malcolm H. Michael Philips, McGa(ry, Jr. I4R DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9833 William L. Porter Albert V. Carr, Jr.
Ellen T. Ruff DUKE POWER COMPANY --
Attorneys for Duke Power Company July 30, 1982 s
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- - - .. _. - , , , - . _. - - _. ,, _. - - . _ - - + - _ _ - ,.y- ~_. - - ,,
e' UNITED STATES OF AMERICA 00LKETED NUCLEAR REGULATORY COMMISSION l'W O BEFORE THE ATOMIC SAFETY AND LICENSING BOASg AGO -2 P12:27 In the Matter of ) < - or sp
) - . ' JJ DUKE POWER COMPANY, et al. ) Docket Nos. 50-413'~n
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) ) .
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response To Licensing Board's Question Regarding Intervenors Serious Accident Contentions" in the above captioned matter, has been served upon the following by deposit in the United States mail this 30th day of July, 1982.
4 James L. Kelley, Chairman George E. Johnson, Esq.
Atomic Safety and Licensing Office of the Executive Legal Board Panel Director
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U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission -
Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan William L. Porter, Esq.
Union Carbide Corporation Albert V. Carr, Jr., Esq.
P.O. Box Y Ellen T. Ruff, Esq.
Oak Ridge, Tennessee 37830 Duke Power Company P.O. Box 33189 Dr. Richard F. Foster Charlotte, North Carolina 28242 P.O. Box 4263 Sunriver, Oregon 97701 Richard P. Wilson, Esq.
! Assistant Attorney General
- Chairman State of South Carolina l Atomic Safety and Licensing P.O. Box 11549 Columbia, South Carolina 29211
, Board Panel U.S. Nuclear Regulatory Commission Robert Guild, Esq.
Washington, D.C. 20555 Attorney-at-Law 314 Pall Mall Chairman Columbia, South Carolina 29201 Atomic Safety and Licensing .
Appeal Board - Palmetto Alliance
- U.S. Nuclear Regulatory 2135 1/2 Devine Street l Commission Columbia, South Carolina 29205 i Washington, D.C. 20555 I
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I Jesse L. Riley Scott Stucky
' 854 Henley Place Docketing and Service Station Charlotte, North Carolina 28207 U.S. Nuclear Regulatory Commission Henry A. Presler Washington, D.C. 20555 Charlotte-Mecklenburg Environmental Coalition 943 Henley Place Charlotte, North Carolina 28207
/J. Michael McGarrg, III g n
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