ML20086U030
| ML20086U030 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 03/03/1984 |
| From: | Hodder M CENTER FOR NUCLEAR RESPONSIBILITY |
| To: | |
| Shared Package | |
| ML20086U033 | List: |
| References | |
| REF-GTECI-A-49, REF-GTECI-RV 84-496-03-LA, 84-496-3-LA, OLA, NUDOCS 8403070135 | |
| Download: ML20086U030 (11) | |
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00CMETED UWC
'84 l' Ja -6 fj0 :59 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION " l _ I ' " _.; '
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Dr. Robert M. Lazo, Chairman Dr. Richard F. Cole Dr. Emmeth A. Luebke In the Matter of ) Docket Nos. 50-250 OLA Florida Power & Light Company ) ASLBP No. 8 -496- LA Turkey Point Units #3 and #4 ) March 3, 1984 PETITIONERS BRIEF.ON.THE CONFLICT POSED BY.THE LEGAL REQUIREMENT OF TIMELINESS AND EQUITABLE CONSIDERATIONS
' INTRODUCTION On' February 28, 1984, the Atomic Safety and Licensing Board (ASLB) held-a'Prehearing Conference on the captioned Petition to Intervene in Homestead, Florida. At that Prehearing Conference, the Board asked the parties to submit briefs on the thresho'l'deissue posed by-the conflict between the procedural requirement of timeliness of the issues to be litigated regarding-the fuel core design changes and the equitable' issue raised by the Petitioner's assertion at oral argument
-that the Notice in the Federal Register of July 20, 1983, (48FR 33080)
.had not' fully and fairly disclosed the true scope and nature of the act* ion proposed to be undertaken pursuant to the proposed license amendment, and which as a matter of equity, barred imposition of the legal: requirements of timeliness. The Board's schedule required the e
. Petitioner's brief be filed by Friday, March 2, 1984, with responses from the Licensee, Florida Power & Light Company,and the NRC Staff due by. March 14, 1984.
8403070135 840303 POR ADOCK 05000250 0 PDR
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The Petitioners, Center for Nuclear Responsibility, Inc. (Center) and Joette Lorion, in original and amended petitions filed November 4, 1983, and January 25, 1984, respectively, had ' asked the U.S.
Nuclear Regulatory Commission (NRC or Commission) to consider eighteen contentions lettered a-r, which pertained to the utilization of a new fuel core design, technical specification changes to support the new design, and reduction in safety margins for the Turkey Point Nuclear Power Plant Units #3 and #4' located near Miami, Florida,1 and which had been. noticed in the Federal Register prior to their issuance which occurred in December of 1983.
At the Prehearing Conference, all of the parties, the NRC Staff, the Licensee, Florida Power & Light Company (FPL) , and the Petitioners,
- the Center for Nuclear Responsibility and Joette Lorion, were able to stipulate that at least some of the proposed ' contentions were associated with activity described in the July 20th Federal Register Notice. Petitioners have contended that all of the activity sought to be. permitted under the notice published on October 7, 1983, 21 is part and parcel of the same program to achieve flux reduction.
Further, all of the parties and Board generally acknowledged that the Petitioners in their Petition to Intervene , and comments which were incorporated by reference, had adequately manifested an intent to raise issues that derived from both the July 20th, fuel core design change . and the October 7th technical specification change and safety margin reduction Fedaral Register Notices.
The Board recognized the existance of the equitable argument posed by Petitioner's charge that there had not been full and fair disclosure by the Commission in the July- 20th notice of the full scope and impact of the flux reduction program, which the Florida Power & Light Company and Commission were seeking to permit by issuing an operating license amendment that would allow utilization of the new fuel core design. Specifically, the Board provided this opportunity to 1/ The first set of operating license amendments (nos. 92 & 93) were first noticed in the Federal Register on July 20, 1983, 48 FR 33080 and were issued December 9,'1983. The second set of Amendments (nos.
98 & 99) were noticed in the Federal Register on Oct. 7, 1983, 48 FR 95882 and were issued on December 23, 1983.
2/ Examples of Contentions derived from the July 20, 1983 Federal Register Notice are: c, j, k, 1.
f- .
Petitioners to submit a legal brief on their view that equity dictated inclusion of consideration of the use of the new fuel core and issues derived therfrom in this Board proceeding, which was y empaneled to consider changes in the Technical Specifications and reduction in established safety margins at the Turkey Point Plants.
Petitioners argued that the contentions they had raised address far more than the activity announced in the two Federal Register notices. Petitioners submit their contentions address an entire scheme or program by the Commission, the Licensee, and the Reactor Vendor,: Westinghouse, acting in concert, to deal with the site-specific problem of reactor pressure vessel embrittlement and Pressurized Thermal Shock (PTS) at Turkey Point. Because the problem at Turkey Pint is site-specific, Rulemaking on the generic issue of PTS does not control.the proceeding here.
JPetitioners submit that since January 1983, FPL contemplated
.and planned at all times-prior to the License Amendment application
'to NRC of June 3, 1984, (noticed in the Federal Register at 48 FR 33080) to haplement a flux reduction program that would require the Technical Specification Changes and Reduction of Reactor Safety Margins sought'in the October 7, 1983, Federal Register Notice (48
. FP. ' 4 58 62) .
Specifically, petitioners submit that utilization of the new fuel core _ design by its inclusion of a certain configuration of
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Wet Annular Burnable Absorber Rods (WABA) requires the modification to the Technical Specifications.and reduction of safety margins sought in the October 7, 1983, notice, which is the subject of this hearing.
In their responses, the NRC Staff and the Licensee, FPL, each have argued that the Petitioners have not presented a timely petition
'to' intervene with respect to the July 20, 1983, Federal Register
-notice and that their contentions, so derived, must therefore, fail
,as untimely. In the alternative, they seem to argue, to the extent that the original Petition to Intervene may be taken as an attempt
'to address those issues arising'from the July 20, 1983, notice, the contentions so raised must nevertheless fail due to untimeliness.
_a_
Petitioners submit that this result would be inequitable. The activity sought to be licensed in the July 20 Federal Register notice
'is the'same as, part and parcel of, and to the same purpose as the activity sought to be licensed on October 7. Indeed, the operating license amendments of December 9, 1983 and December 23, 1983 are but increments of an overriding and grand scheme, which constitutes a major federal ~ action or program to deal incrementally, and in a man-ner designed to. escape formal review, with the problem of reactor pressure vessel embrittlement and pressurized thermal shock.
The Staff and Licensee, FPL, argue "there is currently no licensing board with subject matter jurisdiction over that parti-cular license amendment". (notice July 20, 1983 fuel corquesign change) (See NRC Staff Response at P.6, also see FPL's Licensee's Answer at P.5).
Petitioners hold the conviction that they have adequately and prior to the issuance of the amendments in December, 1983, manifested an intention to obtain a hearing before the Atomic Safety and Licensing Board on matters raised in the July 20, 1983 (48 FR 33080) Federal Register notice as well as those in the October 7, 1983 notice (48 FR 45862).
In' support of that view Petitioners refer to the original Petition to Intervene filed November 4, 1983, specifically the contentions, (a) (b) and (d) and paragraph 9 of that Petition which states:
- 9. The Commission has known of the utility company's plan to change technical specifications and use the new fuel design since January 1983. It received the utility company's license amendment request June 3, 1983 with a request the amendment be available for use on December 1, 1983 refueling Unit 4. Yet' notice was first given of the proposed action to the public on October 7, 1983. This is stampeding a change that involves a serious significant hazard considera-tion and requires technical scrutiny by the Commission's staff regulators and administrative law judges in a hearing process in which adverse evidence and views may be presented.
If.the Commission permits, it deserves the epitaph " lapdog -
not watchdog."
If at this stage of the proceeding Petitioners were to file a new " Petition to Intervene with respect to the July 20, 1983 Federal Register Notice" in an attempt to correct the procedural flaw alleged to exist by the Staff and Licensee, they would then merely fall into a trap for the unwary. Since the new petition would be vulnerable to the attack that the issue is also moot.
"Once the NRC has taken final action on an applica-tion, the proceeding is terminated and there is no longer any " proceeding" in which to intervene."
(Licensees' Answer'to Amended Petition to Intervene, P.5 February 10, 1984) 31 The Petitioners concur with the suggestion of the NRC Staff expressed in the NRC Staff's Response To Amended Petition to Intervene at the footnote (9) on page 8:
If the Licensing Board construes Petitioners' request as a late-filed petition relating to the core design modification amendment, the Board may wish to contact the Office of the Secretary of the Commission to ascertain whether the Commission wishes to delegate authority to the Licensing Board to consider this matter.
It would be appropriate if the Board wished to make such an inquiry. Petitioners submit the issue should be posed with respect
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to the original timely (prior to issuance of license amendments)
Petition to Intervene and the comments addended thereto.
3/ FPL relics upon Houston Lighting and Power Co. (South Texas Project, Unit Nos. 1 and 2) ALAB.- 381, SNRC 582 (1977);
Florida Power and Light Company. (St Lucie Plants, Units 1 and 2) LBP-77-23, SNRC 789, 791 (1977). Petitioners disagree recognizing that the instant case involves an on going " scheme" or program by the Commission, as well as a presentation of equitable issues. Furthermore, the cases relied upon to support the FPL view are 1977 cases which pre-date the implementation in June 1983 of the new rule at 10 CFR 2.105, 2.10 6 and 10 CFR 50.58 and 50. 91 Ap r il 1, 1983, 48 Federal Register 14865. The '
" finality" of agency action is highly questionable when a new rule allows issuance of amendments and then after the fact examination of.the propriety of that issuance. Petit ione r s hold the view they have timely and adequately met the burden of addressing the July 20 issues. They would not submit a new petition to intervane unless there were circumstances compelling that effort.
The remainder of this Brief addresses the Conflict, the factual basis for the determination to be made here and the underlyina legal and equitable considerations.
N Argument In the-late 1960's and early 1970's when the Turkey Point reactor vessels were fabricated by the Westinghouse Electric Corporation, it was not generally known then that the presence of copper in the welds and the steel comprising the pressure vessel itself could substantially induce reactor pressure vessel
~ embrittlement with its susceptibility to pressurized thermal shock. Charpy Tests that would amply demonstrate this physical law had only been recently initiated and were still in process.
As a result, the presence of copper in the aging Turkey Point Reactor Pressure vessels has manifested itself only recently.
(Petitioners attach hereto as Exhibit A an article entitled
" Thermal Shock" from Popular Mechanics, June 1983 for the judicial notice of members of the Board.)
Petitioners have conceded their original Request for A Hearing and Petition for Leave to Intervene may be considered untimely as it relates to issues arising from the July 20, 1983 Federal Register notice (48 FR 33080). However,-the failure of the Commission to fairly disclose the full scope and purpose of the activity sought to be licensed by the July 20, Federal Register notice constitutes sufficient good cause to allow an untimely petition to intervene as to the issues associated with the new reactor core design and granting of Petitioners earlier request under 10 CFR 2.176 to consolidate both proceedings.
Petioners can and have met the b'urden that their contentions as to both Federal Register notices based upon a balancing of the -factors established at 10. CFR 2.714 (a) (1) :
(1). Good cause, if any, for failure to file on time.
(ii) The availability of other means
.: whereby the petitioner's interes.t will be protected.
(iii) The extent to which the petitioner's '
participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's
' interest will be represented by existing parties.
(v) The extent to which teh petitioner's participation will broaden the issues or delay the proceeding.
(i) The entire brief here addresses and demonstrates substantial fgood cause for late filing.
(ii) There are no other hearings on the site-specific issue of the reactor core design modification at the Turkey Point Plants, yet the experimental process of installing the new core is ongoing.
The Commission has and continues to indulge in a pattern of unlawful conduct. Arbitrarily and capriciously and without formal review,
-it issues license amendments designed to implement the FPL - Westing-house program for' flux reduction without the reviews required by Federal law. It has allcwed implementation of an 18 month reactor fuel cycle without notice in the Federal Register. It has issued license amendments on an emergency basis in conjunction with the extended fuel cycle, and without formal agency review relying upon the emergency provisions of the newly enacted Rule 10.CFR 50.91 where no emergency exists (License Amendments No. 89 and 95 to facility operating licenses DPR-31 and DPRs41). These license amendments-allowed a four-fold increase in the tolerable radioactivity
.at the Turkey Point reactors by changing the Technical Specifications.
'In the future the Licensee will seek to enrich the nuclear fuel using the modified fuel core design:
" Approval of a Technical Specification Change to increase
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the enrichment limit for the Turkey Pcint Unit 4 Cycle 10 (Spring 1984) will be dependent upon that approval".
(Letter Uhrig to Varga March 25, 1983 p. 2)
(iii) The enunciation by the Petitioners of issues that are relavent'and presentation of evidence by Petitioners witnesses would constitute participation that may reasonably be expected to assist in developing a sound record.
( .
(iv) The interest of Petitioners will not be represented by other parties since no other parties have sought to intervene
'here.
(v) Since the Parties have stipulated that at least some of the issues raised by the Petitioners derive from the October 7, 1983 Federal Register Notice, there is a strong likelihood a hearing will be granted. Inclusion of issues relating to the July 20 notice will broaden the scope of the hearing process, as it should, but it will not produce delay.
Initially, we must consider the legal adequacy of thb July 20, 1983 Federal Register notice. That notice is legally defective in that it does not meet the requirement of 10 CFR 2.105(b) which pro-vides in pertinent part:
The notice of proposed action shall set forth:...........
(2) The manner in which a copy of the safety analysis or ACRS report, if any, may be obtained or examined.
The July 20, 1983 Federal Register notice fails to comply with the requirement of 10 CFR 2.105(b) in that there is no reference either direct or implied to the existance of any " safety analysis" or " safety evaluation" pertaining to the license amendments, yet they did exist.
In its application for the license mmen5nents the Licensee utility company had submitted a " Safety Evaluation" in support of the license amendments. (See FPL letter of June 3, 1983 Uhrig to Varga applying for operating license amendments.) The existance of this safety evaluation was not referenced in any way either directly or by implication in the July 20 notice. Nor was any provision announced for obtaining or examining the safety evaluation as the rule required. By its failure to note the existance of th~e Safety Evaluation the Commission failed in its responsibility to provide notice to members of the public that by its very existence would have alerted them to the fact there were safety issues to be consid-ered and evaluated rather than "no significant safety hazard con-siderations" as was noted in the July 20 Federal Register notice.'-
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The statements of the Licensee's Counsel Mr. Bauser at the pre-Hearing Conference on Febrary 28, 1984 TR 72-73 seems to vindicate Petitioner's contention that there is an interdependence between the activity noticed on July 20 and that noticed on October 7, rendering them part and parcel of the same scheme. Paraphased due to non-availability of an official transcript Judge Cole had asked Mr. Bauser to the effect - with the changes in the core design associated with the July 20 amendment are you saying you would be able to operate at design power levels without the amendment (?)
(Transcript p.72) --
Mr. Bauser's response, again paraphased, due to non-availability of the transcript was to the effect that -- because of the arrange-ment of the poisons they needed to change their flux arrangements and FPL needs the ammendments to operate at full power level " comfort-ably". (Transcript p.73) --
Clearly Mr. Bauser's statement (FPL Counsel at Transcript p.72) to the effect that the first amendment (July 20 notice) had nothing to do with flux reduction was incorrect. This is confirmed by Dr.
Uhrig:
The present objective of the flux reduction program is to reduce the fast neutron flux at the vessel surface suffic-iently to allow operation to at least the licensed lifetime ~
To achieve this objective, changes'to core designs are
" anticipated to substantially reduce vessel flux.
(FPL's Dr. Uhrig to Varga letter March 25, 1983, Attachment "B" page 3.
In order to increase the amount of flux reduction needed, FPL was aware that a certain loss of thermal margin and operating flexi-bility would result from the use of burnable poison (WABA) rods. An increase in the operating margins of the reactor would be required to operate at 100% power.
The Safety Evaluation Report (SER) accompanying the December 9, 1983 license amendments, (July 20 notice) describes the new burnable poison design, the WABA rods. The NRC says, "These rods contain no fuel, and by adding poison rods to the outer row of tubes, they modify
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flux characteristics such that certain Technical Specifications for the hot channel limit and total peaking factor will limit the total Nreactor power level to less than 100%. .... "the licensee has proposed an amendment request which will permit operation at full power, which is currently under review." SER December 9, 1983 p.4 Thus FPL's statement on page 15 of Licensee's answer to Amended
" ... each amendment has independent Petition to Intervene that, utility.and utilization of either amendment is not dependent on utilization of the other," is incorrect. Although in their brief, FPL names the amendment request the " core design" and " core safety limit" amendments, one can see that they are both part of the core redesign and that the new OFA core design, WABA rods, and the 18 month fuel cycle are all part of their program to achieve flux reduction and allow the Turkey Point units to run at 100% power.
In' addition, a July 6, 1983 letter from Robert F. Uhrig, FPL to Darrel G..Eisennutt, NRC, Dr. Uhrig addresses an FPL submittal regarding a" safety evaluation and associated Technical Specification changes to support theplanned fuel design from the Westinghouse Wet
-Annular Burnable Absorber (WABA) Rods for the Turkey Point Units."
'He also states," In addition, to achieve the higher Edg, without a power limiting reduction in the F limit, approval of the improved LOCA.Reflood Model ... approval of thse submittals is required
- prior to startup from refueling." Thus this letter clearly describes the full scope of the Turkey Point Unit 3 Cycle 9 licensing and dxms it incorporates:both the fuel assembly design and consequences of the design in this letter which was submitted prior to the July 20 request.
Furthermore, in Section I of the NRC Staff Evaluation of PTS, November 1982 f f.he NRC Staff-states under
Conclusions:
"If one attempted to maintain core power rating while implementing low leakage schemes, the power distribution would become more centrally peaked and would require' core redesign and fuel rearrangement to flatten power and probably would result in plant derating depending on available thermal margin". It was for'this reason that the FPL request for the core redesign' amendment necessitated their obtaining the safety Ibnit reduction as well.
.i.._..... -
. CONCLUSION.
The Nuclear Regulatory Commission, by issuing the subject operating license amendments is experimenting with the health and safety of the residents and environment of South Florida. They are doing it incrementally and in a manner designed to escape formal participation by-interested members of the public, by the failure to fairly disclose the scope and nature of the activity to be undertaken. This experiment is being implemented on a first-case basis at the Turkey Point Nuclear Power Plants which have the most severely embrittled reactor pressure vessels of some 82 operating United States reactors. 4/ It is an experi-ment that is being conducted in the field rather than in the laboratory where it belongs and where suitable controls could be
-implemented. In the interest of fairplay, the Licensing Board should issue a ruling allowing Petitioner's contentions that address both the new fuel core design and the changes in Technical Specifications and Reductions in Safety Margins, so that interested members of the public may participate in the decision making process, espectfully submitted, Martin H. Hodder
- Attorney for. Center for Nuclear Responsibility, Inc.
and Joette Lorion 4/
-See NRC Staff Evaluation of Thermal Shock'(Draft Report September 13, 1982); also see Inside N.R.C. Vol. 5, No. 21 October 17, 1983, which reports:
Owners of eight plants deemed by NRC staff to be the most embrittled have already addressed the PTS issue, the staff source said. Carolina Power & Light' (Robinson
- 2 and Turkey Point - 3 and 4) has had to plan for the most " radical" work.
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