ML20059M643

Memorandum & Order (Consideration of Possible Sua Sponte Issues).* No Issues of Sufficient Importance Identified to Declare Sua Sponte Issue & Case Dismissed.Certificate of Svc Encl.Served on 900925

ML20059M643
Person / Time
Site:	Turkey Point
Issue date:	09/25/1990
From:	Anderson G, Bloch P, Johnson E Atomic Safety and Licensing Board Panel
To:	FLORIDA POWER & LIGHT CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC), NUCLEAR ENERGY ACCOUNTABILITY PROJECT
References
CON-#490-10854 90-60-01-OLA-5, 90-60-1-OLA-5, LBP-90-32, OLA-5, NUDOCS 9010050140
Download: ML20059M643 (24)

Text

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N b 90 September 25, 19S0 '

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UNITED' STATES OF AMERICA ~ - UC NUCLEAR REGULATORY COMMISSION -

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ATOMIC SAFETY AND LICENSING BOARD ho SEP 251990 i Before Administrative Judges:-

Peter B. Bloch, Chair '0 Dr. George C. . Anderson '

Elizabeth B. Johnson

.In the Matter of I Docket Nos. 50-250-OLA 50-251-OLA-5 l FLORIDA POWER AND LIGHT COMPANY Technical Specifications Turkey Point Plant Replacement-

-(Unit Nos.' 3 and 4) ,

Facility Operating. ASLBP No. 90-602-01-OLA-5' Licenses Nos. DPR-31, DPR-41

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MEMORANDUM AND ORDER (Consideration - of Possible. Sua' Soonte Issues):

MEMORANDUM.

The purpose of this opinion is to consider whether or t

not to declare-a'sua sconte~ issue based on information~that.

came to our attention while this case wa's pending and before '

i we dismissed the intervenors from the case. We have: decided.

that, despite the position of the remaining carties, we-have' .

-the authority to declare a sua sconte issue at this stage ofs a

the proceeding, even though there are no parties left in the

b. l L  : case.

However, after considering the facts submitted to us by

[ the Staff and the Applicant, we have decided that there are 9 9010050140 900925 K i

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.a-no issues of sufficient importance to declare a ag1 sconte issue. In the course of our opinion, we discuss sot '

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p matters that concern us, and we request that the Advisory Committee on Reactor Safeguards make an independent assessment of the significance of those mattars. The proceeding is dismissed.

I. Procedural Background 3

Wo have granted Applicant's niotion to dismiss f rom thi .

proceeding the Nuclear Energy Accountability Project (MEAP),

the only remaining intervenor. Florida Power and Licht Com-pany (Turkey Point Plant, Units 3 and 4), LBP-90-24 (July 17, 1990), slip op. at 1. In addition,-we requested infor-mation from the Staff of the Nuclear Regulatory Commission for ths purpose of determining whether or not to exercise our ant _y,nonte authority. We stated, id. at los Pursuant to 10 CFR S 2.760a, Matters not put into controversy by the parties will be examined and decided by the presiding officer only where he er she determines that a serious safety, environmental, or common defense and security matter exists.

i This authority to raise matters on our own or "apa '

suente" gives rise to the responsibility to determine whether or not to use the authority. <

n dismissing NEAP after having reached a determination that some of its contentions were litigable, we hava-a responsibility to consider

+ whether or not to retain jurisdiction of one or more of its contentions as a sua sconte matter. In i

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u reaching this determination,.we must consider the j seriousness of each contention. However 1 Tha mere acceptance of a contention does not jus-tify a board to assume that a serious safety, envi-ronmental, or common defense or security matter exists or otherwise relieve it of the obligation under 10 CFR 2.760a to affirmatively determine that t<

such a matter exists.' '

Furthermore, if the matter has already been c spotlighted for serious consideration by the Staff, '

apart from the hearing process, then the seriousness of the issue is mitigated and a Board i need not declare it to be a sua sconte issue.' i II. Filings o i

l The filings relevant to this decision are "NRC Staff's kesponse to Licensing Board's Order of July 17, 1990,"

August 31, 1990; and " Applicant's Response to Memorandum and l Order (Wotion to Dismiss)," September 14, 1990. j 1

' Texas Utilition Generatina comoany, et al. (Comanche Peak Steam I:lectric Station, Units 1 and 2), CLI-81-36, 14 NRC 1111 (1981) at 1114.

' Cincinnati Gas and Electric Comnanv. et al. (Wa H.

Zimmer Nuclear Power Statior., Unit No. 1), CLI-82-20, 16 NRC ^

109 (1982) at 110. As Commissioner Asselstine points cut in his dissent in this case, at 116, even the. Staff agreed that  :

the particular issue met the criteria for admission as a Rua sponte issue because it was "a most serious issue." ,

Although the Commission itself appears not to offer a  !,

rationale for how it could take the action it did, in face '

of the regulation -- and Chairman Palladino, made it clear at p. 112, that;he did not intend to revoke the sua sconte.

authority - , we believe that our explanation in the text of ,.

this decision provides an appropriate rationale sympathetic to the intent of the Commission.

L However, in this case we are uninformed of the Staff's evaluation.of the importance of the issues before us or of the extent of its follow-up of these issues, so the proper application of the Zimmar rule is not apparent.

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l III. Arguments of the Parties A. The Licensing Board Lacks Jurisdiction

1. Staff Argument f The Staff has argued that the Licensing Board lacks  :

jurisdiction for two reasons. First, because NEAP has k

appealed our ruling that dismissed it from the case and th ",

once a listice of appeal has been filed, the Licensing Board loses jurisdiction ovsr the issue being appealed. For this 1

proposition, it cites ggorcia Power comoanv. et al. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-859, 25 NRC e 23, 27 (1987).

Second, the Staff argues that should our dismissal of NEAP be sustained the issues in the case would then become 1 uncontested and would rest exclusively with the Staff.

Their form of citation ("see") for this-proposition impli-citly recognizes that the cases are not directly in point; i l

it ist See. Public Service of New Hannshire. et al.

(Seabrook Station, Units 1 and 2),-ALAB-854, 24 NRC 783, 790-91 (1986); consolidated Edison Co. of q N.Y.,

Inc. (Indian Point, Units 1, 2 and 3) ALAB- l

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319, 3 NRC 188, 190 (1976). 4

2. Applicant's Argument Applicant-introduces the additional argument that the i Board lacks jurisdiction at this stace of the. case -- prior l to the issuance nf a Notjce cf Hearing that states the issues to be adjudicated and the parties that are admitted.

5-It relies on two cases: Public service co. of Indiana and Wabash Vallev Power Association (Marble Hill Nuclear Generating Station, Units 1 and 2), LBP-96-37, 24 NRC 719 (1986)* and Rockwell International corooration (Special Nuclear Material License Number SNM-21), ALAB-925, 30 NRC 709 (1989) 411$ CLI-90-05, 31 NRC (1990).

In MAA y illl, the Board found that it lacked author-ity to take .urther action under the provisions of 10 CFR S 2.107. Applicant relies on the scholarly analysis of that Board, at pp. 723-24, which concluded that hearings histor-ically have had two parts:

The first was to rule on requests for hearing and petitions to intervene.

The second was to exercise the Commission's authority to issue any notice of  !

hearing in the event a hearing is granted upon a  !

petition or to issue any other appropriate order.

[F)ull analysis leads to the conclusion that the regulations, statutes and the Federal Register notice all anticipate a bifurcated process in operating license proceedings where first the threshold intervention issue is settled, then the notice of hearing is issued.

Applicant would have us conclude that the sua sponte auth-ority attaches to the second part of this bifurcated process and that since we have not issued a notice of hearing we do not have sua sconte authority pursuant to 10 CFR S 2.760a

• Although decisions of licensing boards are not

" precedent", it is always helpful to consider the views of fellow judges and to attempt to achieve uniformity and predictability of results in arear where neither the Appeal Board nor the Commission has spoken.

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-- whether or not a serious safety issue may be found to exist. i Applicant cites Rockwell for the proposition '5at a presiding officer, whether in Subpart L proceeditas or in other ccmaission proceedings, may not ask questions of the <

parties before ruling on a petition for a hearing.  !

3. Conclusion .

We conclude that the question of whether or not we can I retain jurisdiction to raise a sua sconte issue, in the absence of a party, is a question or ricrt impression. None of the cited precedents deals directly with tt.c appropriate

, use of the nua_soonte authority in this situation.

Despite the fact that the commission obviously doe s not '

favor sua sconte issues, we consider that it is implicit in the sua sconta authority itself that a Board can examine certain serious issues on its own authority and that its -!

l authority does not depend on any party raising or being willing to pursue those issues, nor does it depend on the stage of the proceeding. This authority is unusual in ju-dicial type proceedings. It apparently arises from the belief that no officer of the NRC who sees a serious safety ,

issue may work with closed eyes and pretend that it is on '

someone else's beat.

The authority is, however, closely supervised by the l commission, which must receive immediate notice of its use.

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l consequently, there is no chance that a Board will go out on a limb by itself and raise issues that the commission does  :

not also consider serious. t The nost applicable case appears to be Texas Utilities Generatina comeanv. et al. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC lill (1981). In i that case, the Board adopted the contentions of a dismissed  ;

intervenor without making specific findings that supported its declaration of a sua sconte issue. The commission, at

p. 1114, directed the Board to make affirmative findings under 10 CFR S 2.760a before declaring a sua neonte issue. .

However, there was no requirement that any other party have $

an interest in pursuing the issue, It was enough that the Board itself would pursue the issue.

The rationale for permitting a noard to declare sua sconte issues appears to be that a Board's expertise is an -'

additional protection f.c the public interest, beyond the i protection provided by the adversary process. It is our belief that if a Board learns, during its contact with a '

case, that there are serious issues, then it is authorized to use its exp9rtise -- which includes-the technical exper-tise of two of its members and the legal expertise of the third -- tra pursue those issues. This is, of course, a ,

highly unusual authority. It can exist because we are a ,

judicial tribunal within the executive branch, not subject  ;

to Article III limitations concerning the need for a case or '

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controversy. We understand that this unusual authority should be used sparingly and with great caution. However, the authority does not depend on parties having any formal role in the pursuit of sua sponte issues, so that their ah-sence from the caso does not provide a reason to limit the Board's authority to use its expertise to pursue these issues.

We find that the cases cited by Staff are not persua-sive. Georaia Power, supra, was cited for the proposition that a Licensing Board loses jurisdiction over an issue that has been appealed. In this instance, NEAP has appealed its dismissal. It has not appealed our inquiry into declaring a sua sponte issue; nor is its appeal in any way directed at our decision to inquire. Thus, the appeal does not affect our jurisdiction to purcue sua socnts issues in the absence of a party.

Staff also cites Public Service of New Hampshire, suora, which desls with an intervenor's argument that a Licensing Board must make findings on an issue that the intervanor argued was important to safety. The Commission found that a Licensing Board needs to act only on contested issues and on issues that it has declared sua sconte. A Licensing Board is not required to act on any other issues.

Similarly, Consolidated Edison, supra, at 190, stands for the proposition that: "(A) license board is neither required

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nor expected to pass upon all the items which.the staff must consider and resolve before it approves the license."

l Here we fully understand that the Staff's respon-sibility far exceeds our own, which is 1.iaited to the grounds set forth in the formal grant of sua sponte t

authority, which is "to be exercised sparingly." Id. l Applicant's argument, based on Marble Hill, has  ;

suggestive but not controlling force. That case. involved .;

interpretation of 10 CFR S 2.107, which provides authority ,

to a Board to determine issues related to withdrawal of an application but which predicates its authority on the issu-t,nce of a " notice of hearing" -- which the licensing Board "

interpreted to be notice that sets the matter for hearing and not the notice that invites public participation in the adjudicatory matter. The parallel to S 2.760a, if any, is that the predicate to authority must be present. With re-l spect to S 2.760a, the sua sconte authority is predicated en  !

l a. finding that a serious matter exists. It is not predi-L.

i cated on the irsuance of a notice of hearing; and, given thi  ;

purpose of the sua sponte authority, we do not infer this additional predicate to its use. '

We have similar reasons for rejecting the applicability of the Rockwell case. The use of the sua sconte authority '

is carefully hemmed in by commission overview an5 its pur-pose suggests that it be used whenever the presiding officer becomes aware of a serious matter before it.

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We conclude that we have the sua sponte authority and l we proceed, therefore, to a careful examination of whether i or not the grounds for its use exist.

IV. Consideration of Individual Contentions e A. Contention 11

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Reasons We Admitted the Contention  ;

In admitting Contention 11, we said:

The proposed conte.ition states:

The.RTS relaxes the CTS because MODE )

Applicability is explicitly defined for each Surveillance Requirement and forced MODE reductions required by Action state-ments will, for the most part, stop with the first Mode beyond the LCO require-ment. ,

l In oral argument at the prehearing conference, Petitioner stated:

The Applicant in their safety evaluation i admits in some cases that there will be a relaxation compared to the current re-quirements. They even cite an example that the revised tech specs for the emer-gency core coolant system, the ECCS, the mode applicability for modes 1, 2, and 3 and the action statement mode stops at mode 4, while the current tech specs requires mode reduction to mode 5. So the current tech specs require them to implement a mode reduction to Mode 5, and then the revised tech specs are not as restrictive. They only require mode change to Mode 4. (Tr. 103.) .

Petitioner then has criticir9d Applicant for fail-ing to document or td present supporting references for its statement that "in Mode.4 the' probability and consequences from a design basis rupture is.

1 reduced." (Tr. 104.)

, .- .a i Applicant's answer to this question of lack of analysis is that the change is consistent with the 4 standard technical specifications for Westinghouse plants.' (Tr. 105.)  ;

Applicant concedes that there is some risk from being in Mode 4 rather than in Mode 5. (Statement of Counsel, Tr. 106.) Appli-cant also concedes that it did not provide a syste-matic review of possible accident sequences that might occur in Mode 4. (Statement of Counsel, Tr.

108.) Nor has the Board or the public been pro-vided with supporting analyses from the Staff's acceptance of the standard technical specifica-tions. (Staff Counsel, Tr. 113.)

Under the circumstances, we conclude that Petitioner has created a genuine issue of fact concerning Applicant's omission from its analysis of consideration of the risks related to the change in mode reduction requirements. Hence, this contention shall be admitted with respect to this '

genuine issue of fact.

2. Staff and Applicant Conclusions Staff assures us that this is not an important ,

safety issue. It states that modes need be reduced only until all required equipment for a particular~ mode is available. When all required equipment is available, that ,

particular mode has b an designed for safety. Further mode reductions are considered to add little to reactor safety.

" Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment No. 137 to Facility 1

'Although we are not aware of any analyses accompany-ing the standardized technical specifications -- and there-fore have a void on our record -- we suspect that there may be very little difference in risk occurring because of a L

150* difference in temperature between hot and cold shut-down, occurring in a system designed for extremely high I pressures and temperatures.

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D Operating License 4o. DPR-31 and Amendment No. 132 to Facility Operating License No. DPR-41 Florida Power and Light company Turkey Point Unit Nos. 3 and 4 Docket Nos. 50- '

250 and 50-251," August 28, 1990 (Safety Evaluation) at 28.

Applicant relies on the Staff's reasoning. i i

3. Conclusion concorring contention 11 I Basod on the filings before us, we have no reason to believe that there is a serious safety issue here. However, l we remain uneasy that the Staff and Applicant appear not to  !

have done any troubleshooting concerning possible scenarios I that could result in an accident, despite the analyses of mode stability.' We are particularly uneasy that there is '

no indication of any effort to ascertain whether the original plant designers, who wrote technical specifications that required'a further mode reduction, had any knowledge l that led them to introduce a requirement that now seems to

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be completely purposeless.

There is no answer in our record concerning the possi- ,

bility that the original designers knew something that has i been lost. There also is no indication of systematic i

'Such troubleshooting, which resembles PRA (probability risk assessment) or fault tree analysis but without quantification, can spot unanticipated interactions among plant systems or unexpected sources of accidents that result from'idiosyncracias in a particular plant.

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e troubleshooting. We are, however, without resources to reach a conclusion as to the importance of these omissions.

B. Contention 14

1. Reasons We Admitted the contention After refusing to admit most of Contention 14, we explained our admission of a portion of Contention 14 as follows (We) . . . would have ended our inquiry (into the admissability of Contention 14) but for lan-guage in the No Significant Hazards Evaluation at App. A 3/4 1-17_that we do not-fully understand.

The language that we do not understand states:

After borating to cold shutdown SDM, the only boration-system function is make-up for loss in volume due to shrink. In the event that this capability is lost in this time interval, the olant's ability to reduce modes as reauired is lost, but the safety aspect of me.intaining the SDM is preserved. So, extending the time period to restore operability to the pumps or flow path does not result in an-increase in the probability of or impact on the consequences of an accident previously evaluated. (Emphasis added.)

our concern is that it seems to be possible, during the additional time in hot standby, to lose the ability to reduce modes; the possible safety implications of this loss of ability require explanation. Accordingly, we find the Applicant's explanation inadequate and admit this contention for this one purpose.

2. Staff and Applicant conclusions Staff concludes that it is not possible for Applicant to lose the ability to reduce modes. Staff states that even

i if both of the flow paths regr. ired by RTS 2.1.2.2 were lost, t two additional .nethods would be available (1) the f f

Chemical and Volume Control System, and (2) safety injection t pumps taking suction from the refueling water storage tank. '

Safety Evaluation at 29-30.

Applicant, in its Response at p. 10, states that:

Maintenance of the reactor in Mode 3 (hot standty) and fully borated to 1% delta-k/k at 200* F l t

constitutes reactor operation under safe and stacle i conditions.

It cites the Safety Evaluation, at p. 28, for the propo-sition that the plant has been designed to be in this mode t and that it may therefore be expected to fully accommodate accidents and transients that might occur while it is in .

that mode.

3. Conclusion We have no basis for concluding that this particular;

• technical specification gives rise to an important safety question. However, we are distinctly uneasy that neither of >

the parties has explained the reason that Applicant's No Significant Hazards Evaluation stated that the plant could lose the capacity to reduce modes. Was there an error in the choice of words? Was'there an error in failing to  :

consider other ways to reduce mode? What was the source of L the error? Was something important being considered without fully describing the problem that the analyst had in mind?

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- 1. Reasons We Admitted the Contention  !

In admitting Contention 30, we said: i Proposed Contention 30 states:

Specifically, the amendments would change the CTS at specification 3/4.4.1.1. The  :

RTS relaxes the allowed outage time for a ' t Reactor Coolant Loop in Mode l'from one j hour to six hours.  ;

Petitioner' objects to a relaxation of the ,

outage time for a Reactor Coolant Loop in Mode 1, I from one 1,our to six hours, because operation with two loops 1:aa not been analyzed. No Significant i Hazards Eva.'uation at S 2.1.1 2) b.2. We conclude  !

that this coatention shall be admitted. '

Applicant's explanation is far from complete:  ;

Relaxing the time limit to be in (get into)' HOT STANDBY from one to six hours '

will allow the plant additional time to i

restore the loop'or perform a normal shutdown. Increasing this ACTION state- ,

ment time limit will have a mini ==1 in- .

pact on a previously evaluated sooident because the ACTION statement only applies ,

in the unlikely event of a single Ecs '

loop being lost during NODE 1 or 2. With power above the P-8 setpoint, a'second plant accident transient during the time interval of the ACTION statement is unlikely. The Reactor Trip System continues to monitor plant conditions during the ACTION time interval and trip functions such as overtemperatura delta-T, or loss of flow are available to provide protection during the ACTION time interval. Finally, adopting the proposed.

ACTION time has the potential benefit of -

reducing the number of reactor trip ,

' Proposed Technical Specifications 3/4.4.1.1 A. 2) c.

at App. A 3/4 4-1 states that "The allowed outage time for a REACTOR COOLANT LOOP in MODE 1 (1) is relaxed from one hour to six hours." ,

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I transients imposed on the plant.' (All emphasis added but for all-caps.) l Petitioner challenges Applie it's jus-tification for this change (Tr. J):

Increasing this ACTION statement time i limit will have a minimal impact on a )

previously evaluated accident'because the )

ACTION statement only anniles in the unlikelv event of a sinale RCS loon being lost durina MODE 1 or 2. No Significant Hazards Evaluation at App. A 3/4 4-2.

(Emphasis added.)

The Board agrees with Petitioner that this l particular justification is lacking. An ACTION j

statement should not be justified simply because it would be used only rarely. The question is whether it is safe when it is user'.

Petitioner also challenges this new outage provision because Applicant has deleted the technical specifications governing operations with 3 two loops, stating that the. safety analysis for the I plant has-not analyzed the safety of operating with <

just two loops. Tr. 160-61; Proposed Technical Specification 2.1.1 at App. A 2-1 (". . . . power operation (MODES 1 and 2) with less than three  ;

loops is not analyzed in the safety analysis."). 1 In an attempt to explain this problem, Applicant erroneously stated that this technical specifica-tion permits " hot standby" and not operation and i i

that there is no need for a guideline governing operation with two loops when all that will be attempted is hot standby with two loops. Yr. 162.

However, Proposed Technical Specifications 3/4.4.1.1 A. 2) c. at App. A 3/4.4-1 states that "The allowed outage time for a REACTOR COOLANT LOOP j in NODE 1 *,1 relaxed from one hour to six hours."

[ Emphasis added.) >

l Since the loss of a coolant loop reduces heat  !

L removal capacity, it is important that operation in I this mode even for six hours be analyzed.

that apparently has not been done. Nor are However, we l pleased with the Applicant's use of the adjectives

" minimal impact," "unlikely event," and "unlik-i

'}k) Significant Hazards Evaluation at App. A 3/4 4-2. '

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l ely," in place of analysis. While it acy be true  !

that this change increases plant safety.through reducing the number of reactor trip transients, I that depends on whether this particular change is  !

safe and can be justified.

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2. Staff and Applicant's Conclusions Staff states in its Safety Evaluation, at p. 30: 5 is not.[T]he six hours an allowed outage settime. forth in this contention

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RTS 3.4.1.1 ACTION does not permit a remedial action with an opportunity.for continued operation.

Rather, it consists only of a specification that  ;

requires completion of shutdown. Throughout the i Standard Technical Specifications 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> has been adopted as a standard time for achieving HOT STANDBY and has been implemented in many

• Westinghouse Plants. Generally the time of 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> l' to achieve HOT STANDBY allows s2fficient time for the-plant to be shutdown in a controlled and orderly manner, and thereby reduce the potential ,

for challenges to safety systems and the initiation 4

of plant transients. '

I (P)rovisions have been made for adequate heat removal capacity under all operating conditions.

I.! reactor power is above 45% and flow in one loop i is suddenly and significantly reduced, the reactor will automatically trip. Several-diverse trip functions are provided to assure this, including overtemperature AT, loss of flow, low voltage or e, low frequency on pump power supply bus, and pump '

circuit breaker opening. Therefore, this Action _  :'

Statement will generally

• not be entered at power levels above 45%.

"The use of the word " generally" suggests that Staff '

either is being very cautious in accepting the possibility that for some unknown reason (failure of an automatic trip?)

the plant could continue at power above 45%, or that the 1 Staff knows of an exception. 'We urge the Staff to examine i this comment and determine for itself that its analysis is complete. 1 L  !

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Many years of reactor operating f experience in various transient conditions provide  ;

confidence that the plant can be safely shut down .

with two loops operating. The staff concludes that provisions are in place to safely shut down the plant when one coolant loop is inoperable and that  !'

no serious issues exist. ,

Applicant adopts Staff's explanation without any '

comment of its own. e i

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3. Conclusion >

We_ join Staff and Applicant in concluding that there is no serious safety question concerning operation for six hours with one coolant loop down for the purpose of making I an orderly transition to hot shutdown mode. We are '

uncomfortable that Applicant's No Significant Hazards i Evaluation treated this technical specification as an allowed' outage time. A passage we already quoted said:  !

Relaxing the time limit to be in (get into)' HOT STANDBY from one to six hours will. allow the plant additional time to restore the loop gr perform a normal shutdown. (Emphasis added.)

We are puzzled that Applicant apparently misinterpreted its own revised technical specification. We are even more puzzled that the Staff did not comment on the Applicant's-

-apparently careless use of language. # '

' Proposed Technicui specifications 3/4.4.1.1 A. 2) c. .

at App. A 3/4 4-1 states that "The allowed outage time for a

, REACTOR COOLANT LOOP in MODE 1 (!) is relaxed from one hour to six hours." .

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D. overall conclusion We have concluded that there is no serious safety question with respect to any of the following contentions:

11, 14 and 30." As a consequenco, we also conclude that there is no significant environmental question raised in the case."

on the other hand, we are outsiders from the Staff process and we are left uneasy by a few aspects of what we have seen. With respect to contentions 14 and 30, there are unexplained differences of opinion between Applicant and Staff. With respect to Contention 14, there is an apparent unexplained difference of opinion concerning whether the ability to reduce modes might be lost. With respect to contention 30, there is an unexplained difference of opinion between the No Significant Hazards Analysis and the Safety Evaluation concerning whether Applicant may return this nuclear plant to full power if flow is restored in the inoperative loop during the six hours that the plant is being placed in hot standby condition.

"our conclusion is without prejudice to a fresh exam-ination miss theshould weinbe parties reversed this case, inour our determination to dis-  :

review process in deter-mining wh6ther or not to declare a sua sponte issue obvi-ously ir less thorough than would occur in litigation. We would L.?e no difficulty assessing fresh evidence that affects our conclusion.

"See Safety Evaluation at 31.

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I In addition to these Applicant " errors", Staff found an  !

additional error with respect to Contention 6. It stated in  ;

the Safety Evaluation at p. 26 that the No Significant  ;

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erroneously indicated that mode reduction would not be required for 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br /> after inoperability had '

been established for a diesel generator in one i train and a different component in-the opposite redundant train. This was inconsistent with the i'

-Revised Technical Specifications, which correctly i requires mode reduction within 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> . . . .

We are aware that there is a level of error that is

. acceptable with respect to any complex task. Hence, we are not sure what to make of this particular level of error.

In addition, we are concerned because we cannot find any indication that in changing the technical specifications that either Applicant or Staff has gone back to the bases '

for the initial technical specifications to ascertain whether there are special reasons why those initial speci- '

fications should not be varied in thAs particular plant. .

Similarly, we have advocated troubleshooting to determine '

whether there are unique scenarios in this plant that would

• make the standard technical specifications unduly risky in this unique setting. '

In making _these observations, we are fulfilling the

i obligation of judges to review our record with care and with concern for public safety. At the same time, we are aware that Staff experience with operating plants is an invaluable resource and that this Board must be humble in comparing our

,. o - .o combined skills with those available within the Staff. So we accept the possibility that our perspective is quite limited and'our concerns may not be particularly weighty -

when considered by skilled, experienced Staff members. '

on the other side of the balance, we also are aware  ;

3 that even skilled, experienced Staff members can at times.

fall into habits or thought patterns in which important I t

information can inadvertently be overlooked. Consequently,  !

we consider it important that tne Staff know our concerns and evaluate them sympathetically. In this instance, what l we have observed is one of many planned revisions of tech-nical specifications, so it is particularly important that any difficulties be ironed out for the sake of the entire program.

We ask that the Staff-seriously consider our views. We also ask that the Advisory Committee on Reactor Safeguards (ACRS), which is a technical check on the Staff, should

• consider whether or not it is worth its while to pursue any  !

of the issues we have raised."

"We considered retaining jurisdiction while the ACRS considered our concerns. However, we are satisfied that the ACRS and the Staff will determine whether our concerns are worth-further pursuit and that, if appropriate, they will carefully serious.- follow up on any of our concerns that they find jurisdiction.

In any event it is not necessary for us to retain Furthermore, it ultimately is the Commission that decides whether or not sua soonte issues are appro- j priate for adjudication, and they are always free to declare i i

such an issue and to remand it to us.

l l 1

.. 1

- at -

t on a more narrow legal note, we have decided that this ,

case must be dianissed. With our limited expertise and  !

limited exposure to this case, we do not find any important ,

safety or environmental questions to declare to be ana  !

Anonte issues.  ;

i i

ORDER ,

t For all the foregoing reasons and upon consideration of '

the entire record in this matter, it is, this 25th day of September 1989, ORDERED, that:

This case is dismissed. '

THE ATOMIC SAFETY AND LICENSING BOARD '

Dr. George C. Anderson kf Administrative Judge 4b Elizaeeth B. Jc ~

e k Admin strative $upon Uddge t

Peter B. Bloch Chair Bethesda, Maryland

o' {

o-UNITED ~ STATES OF AMERICA-

{

NUCLEAR REGULATORY COMMll5 ION i i

In the Matter of I i I

' l FLORIDA POWER AND LIGHT COMPANY l Docket No.(s) 50-250/251-0LA-5  !

I (Turkey Point Plant, Unit Nos. 3 & 4) l '

I  !

l l CERTIFICATE OF SERVICi:

i

! hereby certify that copies of the foregoing LB MEMO AND ORDER (LDP-90-321  :

have been served upon the following persons by U.S. asil, first class, except $

as otherwise noted and in accordance with the requirements of 10 CFR let. 2.712. t

.i Administrative Judge Administrative Judge Thomas S. Moore, Chairman Howard A. Wilber t

,. Atomic Safety and Licensing Appeal Atcate Safety and Licensing Appeal Board Board I U.S. Nuclear Regulatory Consission U.S. Nuclear Regulatory Consission Washington, DC 20555 Washington, DC 20555 Administrative Judge

6. Paul Bollwerk, !!! Administrative Judge Atomic Sainty and Licensing Appeal Peter B. 810th, Chairman Board Atomic Safety and Licensing Board -

U.S. Nuclear Regulatory Consission U.S. Nuclear Regulatory Consission '

Washington, DC 2055! Washington, DC 20555 i Administrative Judge Patricia Jehle, Esquire-  !

George C. Anderson Office of the 6eneral Counsel ABL9P U.S. Nuclear Regulatory Consission .

7719 Ridge Drive, NE Washington, DC 20555 Seattle, WA 90115 Steven F. Frant, Esquire Thomas J. Saporito, Jr. .

Newman.& Holt:1nger, P.C. Executive Director 1615 L Street. NW Nuclear Energy Accountability Project Washington, DC, 20036 P. O. Box 129 Jupiter, FL 33460 l;

I Administrative Judge -

E11:abeth B. Johnson Billie P. Garde, Esq.

Oak Ridge National Laboratory 103 East College Avenue '

P.O. Box 2000 Bethel Valley Rd Bldg 3500 Appleton, WI 54911 Oak Ridge, TN 37831 ,

l' l.

l 1, , - . - - , - . .. -- - --- - - -- - --- - --- --

e o

.o. -

DecketNo.(sis 0-250/251-OLA-5  !

i o LB MEMO AND ORDER-(LDP-90-32) ' I Dated at Rockville, Md. this  :

25 day of September-1990  ?

Office of the Secretary of the Coasteston i

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