ML20078L166

Response Opposing Wisconsin Environ Decade 830923 Petition for Review of ALAB-739 Re Steam Generator Tubes Repaired by Sleeving.Nexus Between Sleeving & Tube Failure Shown. Certificate of Svc Encl

ML20078L166
Person / Time
Site:	Point Beach
Issue date:	10/17/1983
From:	Churchill B SHAW, PITTMAN, POTTS & TROWBRIDGE, WISCONSIN ELECTRIC POWER CO.
To:	NRC COMMISSION (OCM)
References
ALAB-739, ISSUANCES-OLA-1, NUDOCS 8310200102
Download: ML20078L166 (13)

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October 17, 1983 00CKETED USNR0 UNITED STATES OF AMERICA

' NUCLEAR REGULATORY COMMISSION -- --

13 00T 19 A11:45 BEFORE THE COMMISSION c : ;- . 7 ~ - : - - - . . . .

In the Matter of. ) 6C '. C - c

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Docket Nos. 50-266 (OLA-1)

WISCONSIN ELECTRIC POWER COMPANY )

) 50-301 (OLA-1)

(Point Beach Nuclear Plant, )

. Units 1 and 2) )

LICENSEE'S OPPOSITION TO DECADE PETITION FOR REVIEW OF'ALAB-739 I. INTRODUCTION On. September 7, 1983, the Atomic Safety and Licensing Appeal Board issued ALAB-739, 18 N.R.C. __, affirming the Initial Decision in this proceeding, LBP-83-4, 17 N.R.C. 109 (1983). The Initial Decision authorized.the issuance of a license amendment allowing Wisconsin Electric Power Company (" Licensee")~ to operate Point Beach Nuclear Plant with steam generator tubes which have been repaired by 1/

By " Petition For Review of Appeal Board Decision"

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sleeving.

(" Petition") dated September 23, 1983, Wisconsin's Environmental Decade, Inc., the sole intervenor in the proceeding below (" Petitioner") , seeks

-discretionary Commission review of ALAB-739, pursuant to 10 C.F.R.

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S 2.786(b).'-- For the reasons set forth below, the Petition should be denied.-~3/

8310200102 831017 PDR ADOCK 05000266 PDR g

_1/ As authorized by the license amendment, a repair program involving the sleeving of steam generator tubes in Unit 2 was completed on June 11, 1983.

_2/ Decade's Petition erroneously indicates that the February 4, 1983

Initial Decision was issued on March 16, 1983. See Petition at 1.

3/ Petitioner failed to serve the Petition on Licensee's counsel of record _in this proceeding. As explained in counsel's October 7, 1983 letter to the Secretary of the Commission, counsel of record did not receive a copy _of the Petition until October 6, 1983. Accordingly, Licensee's response is'due October 17, 1983.

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e II. BACKGROUND The background of this proceeding is detailed in the "NRC Staff's Answer In Opposition To Wisconsin's-Environmental Decade Petition For.

Rsview," dated October ll, 1983..

III. LDISCUSSION The' Commission's Rules of Practice authorize petitions to the Commission for review of decisions or actions of the Appeal Board.

Sne 10 C.F.R. S 2.786. These procedures were established to constitute:

a discretionary review system, based in part on the certiorari practice of.various faderal agencies and the United' States Supreme Court....

-41 Fed. Reg.-54206 (December 13, 1976). Discretionary Commission review of Appeal Board decisions is undertaken only "in cases of exceptional

' legal or policy importance ...." 10 C.F.R. S 2.786 (a) .

A petition for Commission review of an Appeal Board decision must include,-inter alia:

'(11) A statement (including record citatian) where the matters of fact or law raised in the petition . . . .

were previously raised before the

[ Appeal Board) and, if they were not, -

why they could not have been raised.

4 . 10 C.F.R.. S 2.786 (b) (2) . The Commission will not review matters that could have been but were not raised before the Appeal Board. 10 C.F.R.

S : 2.786 (b) (4) (iii) . Similarly,-the Commission will not review ques-tions of fact unless the Appeal = Board "has resolved a factual issue

.ntcessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the [ Licensing Board] . . . . " 10 C.F.R.

' S 2.786 (b) (4) (iii) . Petitioner does not allege any such errors of

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7 fact by the Appeal Board.

Petitioner seeks Commission review of three issues, discussed sariatim below.

A. The " Linkage" Argument Petitioner first asserts that the Appeal Board erred in affirm-ing the Licensing Board's dismissal of a contention (Contention 1)

.which alleged, generally, the consequences of steam generator tuba failures, Petition at 3-5, but which did not relate the cause of such failures to the sleeving repair. The Appeal Board affirmed the Licensing Board's reasoning that the contention was beyond the scope of'the proceeding, since Petitioner had " failed to provide any link demonstrating that_ sleeving may lead, or be related, to tube failures."-~4/

ALAB-739, 18 N.R.C. __ , slip op. at 7; see generally id. at 4-7.

-Patitioner claims that it did assert such a linkage by advancing a contention in the proceedings below which alleged that the presence of the crevice between the sleeve and the original tube would create an environment-conducive to tube degradation.

Petitioner did indeed advance such an allegation before the Licensing Board (Contention 3 (b)) , but failed to substantiate it in j

_4/ In addition, both Licensee and the NRC Staff presented affidavits in support of summary disposition of Contention 1 which demonstrated that the consequences of tube failure alleged in Contention 1 would not occur as a result of sleeving steam generator tubes. See Licensee's R:sponse to Decade's Motion Concerning Litigable Issues, August 9, 1982,  ;

ct 52-55; NRC Staff Response to Decade's Motion Concerning Litigable Icsues, August 16, 1982, at 18-21. Petitioner presented no affidavits

• in support of its Contention 1 or in refutation of Licensee's and the NRC Staff's affidavits.

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-any way. Both Licensee and'the NRC Staff' filed affidavits demonstrating

.that the' tube-sleeve crevice ~would not present a more corrosive environ-

-msnt'than that which'unsleeved tubes normally experience. The Licensee's affidavit further' explained that the. sleeving material is more resis-tant to cerrosive degradation than the original tube material.-~5/

,Pstitioner filed no affidavits either in support of its own position or in refutation of the affidavits of Licensee and the NRC Staff.

Based on the affidavits before it, the Licensing Board factually dis-posed of Contention 3 (b) on summary disposition, including Petitioner's allegations of " concentration effects" in the tube-sleeve crevice.

'LBP-82-88, 16 N.R.C. 1335, 1348 (1982).

Despita the prehearing dismissal of- Contentions 1 and 3 (b) , the Licen' sing Board nevertheless instructed the parties to addr,ess the overall safety. considerations associated with sleeving (including the consequences of undetected tube leakage) at the evidentiary hearing

.on the remaining contention, which concerned .the adequacy of eddy current testing. LBP-82-88, 16 N.R.C. at 1338. Although Petitioner presented no testimony at the hearing, both Licensee and the Staff ,

adduced extensive evidence on the overall safety implications.of sleev-ing,fincluding detailed consideration of the tube-sleeved crevice 6/

. cnvironment which is the subject of Petitioner's Contention 3 (b) .'-~

_5/ See " Licensee's Response to Decade's Motion Concerning Litigable j Issues" (August 9, 1982) , . at 62-63; "NRC Staff Response to Decade's Motion Concerning Litigable Issues" (August 16, 1982), at 29. -

_6/. LBP-83-4,~17 N.R.C. at 120-22 (temperature and accumulation of corrosive ;

materials in annulus less than for unsleeved tube).

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if j iJ Thus, .as:the Licensing Board. observed in its Initial Decision, the

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evidentiary ~ record developed at the hearing goes well beyond the

-l efficacy of eddy current-testing, to include:

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thorough consideration of both the

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likelihood of not finding flaws and the consequences of not finding them.

LBP-83-4, 17'N.R.C. at 113,'n.8. The Licensing Board concluded that 1

the. sleeved tubes are not only " safer than other unsleeved tubes," but also " safe, without reference tofwhether'they are safer than unsleeved tubes." LBP-83-4, 17 N.R.C. at'll1.

Against this backgrcund, there are-several reasons why Petitioner's first' allegation.of Appeal Board error cannot lie. Petitioner's sole claim here is that, because it advanced Contention 3 (b) , the Appeal

. Board'was incorrect in affirming the' Licensing Board's-finding that Petitioner had not demonstrated a linkage between sleeving and the con-sequences ofEtube failure ~ alleged in Contention 1. In fact, the Licensing Board considered, substantively and comprehensively, the x

contention-3(b) allegations, rejecting the allegations first on summary

' disposition, and then again at the evidentiary hearing after (effectively) giving Petitioner another chance to develop evidentiary support for its "

' allegations. Petitioner' failed to avail itself of either opportunity, and has badly mischaracterized the record in-asserting that the Licensing Board refused to consider the effects of tube failure, Petition at 3, and that the Appeal Board ~ ignored.the issue, id. at 5.

Beyond the~ fact'that~ Petitioner's claim is simply incorrect,

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Petitioner.has. failed to satisfy the threshold requirements of the

-Rules lof Practice for discretionary Commission review of an Appeal

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fs Board decision.- The most obvious infirmity is'that Petitioner never sought Appeal Board review of the disposition of Contention 3(b).

Indeed, Petitioner's only reference'to the crevice environment before the Appeal Board appeared to be a belated attempt to demonstrate a

' link between sleeving and tube failure, in conjunction with its appeal of the. dismissal of its Contention 1. See " Decade's Brief In Support of Its Exceptions To Board's Initial Decision" (March 16, 1983), at-6.--7/

Petitioner's failure to challenge the Licensing Board's disposition of Contention 3 (b): before the Appeal Board (or to explain why the issue could not have been raised ' there) precludes Commission consideration of Petitioner's first assertion of Appeal Board error here. See 10 C.F.R. 5 2.786 (b) (4) (iii) .

Commission-review of the first assertion of error is further

-precluded because the issue raised does not rise to the level of "an important matter that could significantly affect . . . the public health and safety ...." 10 C.F.R. S 2.786 (b) (4) (i) . Although Petitioner strains to. frame its concern as an exceptional issue of law and public policy, its Petition merely reiterates allegations which have already

'bsen resolved once -- and, in some cases, twice -- adversely to it.

-Bscause the Licensing Board gave comprehensive and exhaustive

_1/ The parties, like the Appeal Board, had great difficulty in determin-ing what Petitioner was challenging in its exce'ptions. See generally, ALAB-739, 18 N.R.C. __, slip op. at 4-5, n.4. Petitioner's brief to

• the Appeal' Board reiterated the ' allegations made in its Contention 3 (b) ,

!but_allegedLno Licensing Board' error in dismissing.that contention, or ,

in-the Licensing Board's factual treatment of that issue, and failed to' relate that passage in its brief to any of its exceptions.

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-consideration to the safety aspects of sleeving (including the tube-sleeve crevice environment), both in summary disposition proceedings andfat the evidentiary hearing, and because the Appaal Board affirmed the Licensing' Board's findings, and because, even yet, Petitioner has provided no e::planation of why those findings were in error, there is Dno question that the Commission is not here presented with an important

-issue. warranting its' discretionary review.

B. The Safety Standard Issue Petitioner next asserts that the Appeal Board erred in affirming the Licensing. Board's holding that the Licensing Board is neither re-c;uired nor permitted.to modify the safety standards' established by the Commission. In essence, Petitioner argues that the Licensing Board should'first'have determined the consequences of steam generator tube failure before addressing whether the sleeved tubes would meet existing

? safety standards,'d.e., "have an extremely low probability of abnormal'

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leakage, of rapidly propagating failure, and of gross rupture."

l 10 C.F.R. Part 50, ' App. A , General Design Criterion 14 ("GDC-14").

! Petitioner does not dispute.that the Licensing Board evaluated

the-sleeving process against GDC-14. See LBP-83-4, 17 N.R.C. at 114, 128'.- Nor has Petitioner argued -- either before the Appeal Board or the Commission -- that the Licensing Board erred in its determination that the established standard, GDC-14, had been met. Rather,

,_8/ Petitioner's characterization of the applicable standard, GDC-14, is subtly but significantly misleading. The' standard is not merely a ,

" low probability" cf failure, as Petitioner emphasizes (Petition at 6,7),

.but.rather."an extremely low probability" of failure (emphasis aided).

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Patitioner makus sweeping references to unspecified " statutes and rules" which allegedly require "a probabilistic assessment of pro-b2bilities and consequences." Petition at 9. To the contrary, as the Appeal Board noted, "[c]onsideration of the probability and magni-tude of steam generator tube failures is not required by the Commission's existing regulations." ALAB-739, 18 N.R.C. a t __ , slip op. at 8.

Given the Appeal Board's affirmance of the Licensing Board's straight-forward and exhaustive application of the undisputed applicable safety ctandard -- and in the absence of any allegation of error in the evaluation of the safety implications of sleeving against that standard

-- Petitioner's second assertion of error fails to merit yet a third level of agency review.

Indeed, the Commission itself has already recently clarified the role of probabilistic risk assessment in its regulatory scheme:

The qualitative safety goals and quantitative design objectives contained in the Commission's Policy Statement will not be used in the licensing process or be interpreted as requiring the performance of probabilistic risk assessments by applicants or licensees during the evaluation period.... The staff should continue to use conformance to regulatory requirements as the exclusive licensing basis for plants.

" Policy Statement on Safety Goals for the Operation of Nuclear Power Plants," 48 Fed. Reg. 10775 (March 14, 1983) (emphasis added). And, i

• U1 any event, as discussed above in Section III.A, the Licensing Board actually did inquire into the possibility of undetected flaws in sleeves end the consequences of their occurrence. See ALAB-739, 18 N.R.C. at __, y elip op. at 9. Accordingly, Petitioner's second assertion of Appeal '

Board error should be denied.

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C. The Inspectability Issue Finally, Petitioner claims that the Licensing Board erred in dismissing its contention ' relating to -the inspectability of the upper .

. joint of: the sleeved tube (Contention 3 (a) ) . Both Licensee and the

- NRC Staff-moved for summary. disposition of that contention,.with sup-L porting affidavits which-demonstrated that: (a) at the transition areas - (which ' include the upper - joint) , standard eddy current techniques can detect degradation smaller than that which would cause a tube

- rupture during normal operation or postulated' accidents; (b) available equipment and' techniques can provide inspectability of the upper joint comparable to' standard'techniquen on the non-transition portions of the

.. sleeve; (c) inspectability of sleeved tubes is sufficient to locate degradation with the potential for tube rupture; (d) the region of the tube where the upper joint-is located has been virtually free of cor -

i - rosion,=and corrosion-is not expected to occur in the immediate vicinity of'the' upper-joint; and (e) undetected corrosion in the F . .

.  : vicinity of the. upper joint-(if-it should occur) would not be a sig-nificant safety concern because, even under the worst postulated-4 conditions, leakage at-that. location would be constrained by the sleeve-

, tube configuration'such that it would be detected and the plant ~could ba safely 1 shut down in an orderly manner.--9/ Petitioner provided no

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affidavits' contesting these sworn factual statements and, on that basis, 9/>;See " Licensee's Response to Decade's Motion Concerning Litigable

_ Issues" (August'9, 1982), at 60-61.- See also "NRC Staff Response to

Dacade's Motion Concerning: Litigable Issues" (August 16, 1982), at 26-27.

the issue of upper jo' int inspectability was dismissed by the Licensing Board on summary disposition. See LBP-82-88, 16 N.R.C. at 1349.

Petitioner-failed to challenge the summary disposition of its Contention 3 (a) before the Appeal Board, and has not explained why the

.insue could not have been raised before the Appeal Board. Accordingly, pursuant to 10 C.F.R. S 2.786 (b) (4) (iii) , Petitioner is barred from creking discretionary Commission review of the matter.--10/ ,

III. CONCLUSION For all of the foregoing reasons, the matters raised in the Petition are not properly reviewable by the Commission under 10 C.F.R.

S 2.786. The Petition must therefore be denied.

Respectfully submitted, SHAW, PITTMgN, POTTS & TROWBRIDGE r i hGo j Bruce W7-Churchill, P.C.

Delissa A.-Ridgway Counsel for Licensee 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: October 17, 1983 10/ Petitioncr's assertions that it raised this issue before the Licensing Board,-Petition at 2, 9-10, are of no, moment. The regulation governing. discretionary Commission review on its face contemplates review '

of Appeal Board -- not Iicensing Board -- action's. See 10 C.F.R. S 2.786.

Further, while the Appeal Board adhered to its "long standing prac-tice" of conducting a'sua sponte review of the Initial Decision and the underlying record, ALAB-739, 18 N.R.C. at __, slip op. at 9', and though the Appeal Board did request some additional information on inspectability, the Appeal Board haa never declared inspectability of the upper joint to be n sua sponte. issue as that concept is defined in 10 C.F.R. S 2.785(b) (2) and used in 10 C.F.R. S 2.786 (b) (4) (iii) .

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DOCKETED USNRC T3 GH 19 m):45 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cprg: C: EiC?iif~,

DC0nEin.G & SEfe!!L BEFORE THE COMMISSION N In the Matter of )

)

WISCONSIN ELECTRIC POWER COMPANY ) Docket Nos. 50-266 (OLA-1)

) 50-301 (OLA-1)

(Point Beach Nuclear Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE This is to certify that copies of " Licensee's opposition To Decade Petition For Review Of ALAB-739" were served, by deposit in the U.S. Mail, first class, postage prepaid, to all those on the attached Service List, this 17th day of betober, 1983.

I I s v

BAEHf W'. M urchill, P.C.

Dated: October 17, 1983

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION-In'the Matter of )

)

WISCONSIN ELECTRIC POWER COMPANY ~) Docket No. 50-266 (OLA-1) l' 50-301 (OLA-1)

(Point Beach Nuclear Plant, )

Unit 1) )

SERVICE LIST Nunzio J. Palladino, Chairman Peter B. Bloch U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Chairman, Atomic Safety and Licensing Board Victor Gilinsky, Commincioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Hugh C. Paxton Thomas M. Robarts, Commissioner Administrative Judge U.S. Nuclear Regulatory Commission 1229 - 41st Street Washington, D.C. 20555 Los Alamos, New Mexico 87544 James K. Asselstine, Commissioner Dr. Jerry R. Kline U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Atomic Safety and Licensing Board Frederick M. Bernthal, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Thomas S. Moore Board Panel Administrative Judge U.S. Nuclear Regulatory Commission Chairman, Atomic Safety and Washington, D.C. 20555 Licensing Appeal Board U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel U.S. Nuclear Regulatory Commission Dr. W. Reed Johnson Washington, D.C. 20555 Administrative Judge Atomic Safety and Licensing Docketing and Service Section (3)

Appeal Board . .

Office of the Secretary ^

U.S. Nuclear. Regulatory Commission U.S. Nuclear Regulatory Commission 20555 Washington, D.C. Washington, D.C. 20555 - -

Dr. Reginald L. Gotchy Administrative Judge Stuart A. Treby, Esq.

Atomic Safety and Licensing Office of the Executive Legal Appeal Board Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

a lD .

2-Richard G. Bachmann, Esq.

Office of the Executive' Legal

. Director U.S.' Nuclear Regulatory Commission Washington, D.C. 20555 Myron Karman, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Peter Anderson Wisconsin's Environmental Decade 114 North Carroll Stree't '

Suite 208 Madison, Wisconsin 53703

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