ML20093H751
| ML20093H751 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 10/12/1984 |
| From: | Glasspiegel H CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| Shared Package | |
| ML20093H729 | List: |
| References | |
| OL, NUDOCS 8410160370 | |
| Download: ML20093H751 (6) | |
Text
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October 12, 1984 00th{5C U
UNITED STATES OF AMERICA g
NUCLEAR REGULATORY COMMISSION OCT f3A10:4g BEFORE THE ATOMIC SAFETY AND LICENSING BOAhDFc..
~tY.'.~$ 5f CP.
In the Matter of
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Sald,jeq:l
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THE CLEVELAND ELECTRIC
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Docket Nos. 50-440 O
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50-441 0 s -
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(Perry Nuclear Power Plant,
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Units 1 and 2)
)
APPLICANTS' REPLY TO OCRE RESPONSE REGARDING SPECIFICATION OF A CREDIBLE ACCIDENT SCENARIO UNDER ISSUE #8 In "OCRE Response to Applicants' Motion for Specification of a Credible Accident Scenario Under Issue #8," dated October 3, 1984 ("OCRE Response"),l/
OCRE asks the Licensing Board to overrule decisions by the Commission, the Appeal Board and this Licensing Board governing the litigation of Issue 48.
The Licensing Board should deny the relief OCRE seeks in its October 3 response.
The litigat'on of this issue is governed by Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),
CLI-80-16, 11 NRC 674, 675 (1980) ("TMI-l Restart").
- However, i
OCRE argues that TMI-l Restart has been overtaken by " time and 1/
OCRE's filing is in response to " Applicants' Motion for Specification of a Credible Accident Scenario Under Issue
- 8," dated September 18, 1984
(" Applicants' Motion"). [
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events,=2/ and-that Issue #8 should now be governed by the draftLrule attached to OCRE's response.3/
OCRE's new arguments are without legal basis.
The ground rules for the litigation of Issue #8 are those Lset forth in TMI-l Restart.
These ground rules were recently reaffirmed by the Appeal Board in Pacific Gas and Electric l
Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-728 17 N.R.C. 777,-805 (1983).
The TMI-l Restart ground rules are the law of this case.
See Cleveland Electric L
Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 N.R.C. 1105, 1114 (1982) ("the Commission's TMI-l Restart ruling requires a credible LOCA scenario for the generation of hydrogen.")
The Board itself has already agreed to "the need to specify a particular type of credible accident scenario in order to litigate meaningfully the adequacy of a hydrogen control mechanism.
Memorandum and Order (Con-cerning Reconsideration and Dismissal of Hydrogen Control Con-tention), dated December 13, 1982, slip op. at 2.
OCRE has set forth nothing to indicate that the Commission has withdrawn TMI-l Restart.
OCRE cites no authority in its response which would permit the Board to disregard TMI-l Restart and the rulings of this case.
OCRE cannot prevail by 2/
OCRE Response at 7.
3/
See OCRE Response at 2-4, and Exhibit 1 to OCRE Response (containing selected portions of SECY-83-357). __
r
' simply asking the Board to disregard these precedents in favor of a draft position paper.4/
The Licensing Board is bound to follow the Commission and its appeal boards on this issue.
In any event, even if OCRE were correct and this Board could ignore TMI-l Restart and apply the draft rule attached in Exhibit 1 (Enclosure "F") to OCRE's response, OCRE could not justify a new contention.5/
Section 50.44(c)(3)(vii) of the draft rule provides that CEI would have 180 days from the ef-fective date of the final rule by which to submit a schedule for meeting the rule's requirements (see last page of Enclosure "F" in OCRE's Exhibit 1).
According to the draft "Supplementa-ry Information" section of the draft rule (see page 9 of Enclo-sure "F")
it is expected that CEI will have a minimum of two years to implement the requirements of the rule.
Thus, under this draft language, OCRE's proposed contention would have to Le dismissed, since CEI would not be required to demonstrate compliance with the rule for two years.
-4/
SECY-83-357, which OCRE states is "[t]he current thinking on the hydrogen control rule" (OCRE Response at 2) is not a regulation.
In this situation, "[t]he existence of a draft internal staff working paper suggesting the adoption of some other standards
. could not relieve the Board of its obligations to apply the current regulations."
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 A.E.C. 244, 254-55 (1974); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268, 1 NRC 383, 407-09 (1975).
5/
OCRE appears at page 4 of its response to be suggesting a new contention based on the draft rule.
If so, OCRE would, of course, be obligated to supply the required basis, specificity, and justification for late-filing, under 10 C.F.R. 52.714.
OCRE has not attempted such a showing.. - _
For all these reasons, Applicants respectfully submit that OCRE's new argtments set forth in its response cannot be adopt-ed.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:'
7 Jay E. S i'l b e r g, P. C.
Harry H. Glasspiegel e
Counsel for Applicants 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 Dated:
October 12, 1984.
. 6 UNITED STATES OF AMERICA NDCLEAR REGULATORY COMMISSION C0C Mg, e_-
r UStsRC" BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00I IS 410:48 In the Matter of
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THE CLEVELAND ELECTRIC
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Docketk NOs.+50-,4 4 0
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y (Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing "Appli-cants' Motion for Leave to file Reply" and " Applicants' Reply to OCRE Response Regarding Specification Of a Credible Accident Scenario Under Issue #8" were served by deposit in the United States Mail, first class, postage prepaid, this 12th day of October, 1984, to all those persons on the attached Service List.
g_;22n L a.rry T-HARRY H. ALASSPIEGEL l
Dated:
October 12, 1984 l
1
y UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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THE CLEVELAND ELECTRIC
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Docket Nos. 50-440 ILLUMINATING COMPANY
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50-441
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(Perry Nuclear Power Plant,
)
Unita 1 and 2)
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SERVICE LIST Peter B. Bloch, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Jerry R. Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Wasnington, D.C.
20555 Washington, D.C.
20555 Mr. Glenn O. Bright Colleen P. Woodhead, Esquire Atomic Safety and Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Christine N. Kohl, Chairman Atomic Safety and Licensing Terry Lodge, Esquire Appeal Board Suite 105 U.S. Nuclear Regulatory Commission 618 N. Michigan Street Washington, D.C.
20555 Toledo, Ohio 43624 Dr. W. Reed Johnson Donald T.
Ezzone, Esquire Atomic Safety and Licensing Assistant Prosecuting Attorney Appeal Board Lake County Administration U.S. Nuclear Regulatory Commission Center Washington, D.C.
20555 105 Center Street Painesville, Ohio 44077 Gary J. Edles, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission i
Washington, D.C.
20555 Washington, D.C.
20555 John G. Cardinal, Esquire Ms. Sue Hiatt Prosecuting Attorney 8275 Munson Avenue Ashtabula County Courthouse Mentor, Ohio 440GO Jefferson, Ohio 44047 N
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