ML20127L056

Decision on Remand from Appeal Board.Denies Necnp Intervention in Proceeding to Amend License

ML20127L056
Person / Time
Site:	Monticello, Vermont Yankee
Issue date:	03/24/1975
From:	Hall D, Kornblith L Atomic Safety and Licensing Board Panel
To:
Shared Package
ML20127L046	List: ML20127L042 ML20127L056
References
NUDOCS 9211230407
Download: ML20127L056 (11)

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G W ti!D UNITED STATES OF AMERICA NUCLEAR REGULATORY C0 MISSION.

,6 s MAR 2 51975

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]}r 9 'UjE:h.'.Y' O In the Matter of m-n b 7

-VERMONT YANKEE NUCLEAR POWER CORPORATION Docket No. 50-271 o> e\

(Vennont Yankee Nuclear Power )

Station) )

DECISION ON REMAND FROM APPEAL BOARD We have before us two separate but related issues in the captioned 1/

case. First, we have a remand by the Appeal Boarl of our Order of v October 22, 197 denying New England Coalition on Nuclear Pollution (NECNP) intervention in a proceeding to amend the license of the licensee. - This i . .

' remand was for the purpose of obtaining certain additional informatien' as a basis for granting or denying intervention. Second, we have a request by NECNP to amend its original petition to intervene and to permit-inter-vention. In addition, NECNP requests that this Board- refer NECNP's request i

that the December 3, 1974, amendment to ihe Vermont Yankee o;.erating

! license be revoked or its effectiveness stayed:to a licensing board estab-i lished to rule on the merits of the Petition to intervene. In this

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Decision we set forth the additional information we have been directed _

i l by the Appeal Board to obtain, reaffirm our previous order denying i intervention and deny NECNP's petition and to revoke or stay the amendment.

! l lf ALAB-245, RAI-74-il 873. See also ALAB-246, RAI-74-12 933 and . j

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1. The Appeal Board in ALAB-245 has directed that this Board obtain, for the record, "an explanation as to what factors played a part in the April 1974 decision to adopt less stringent limitations on emissions that we had been led to believe would be in effect. In particular, the Staff must indicate whether the excessively high leakage rate in the existing fuel was a factor in that decision. If it was, intervention must be granted; if the Board becomes satisfied that it was not, intervention should be denied."3/

In ALAB-246, the Appeal Board repeated its directive in only slightly different words:

"The purpose of the remand is only to develop on the record the Staff's reasons for establishing limits higher than 1 and 2%, and then to determine if sufficient nexus exists to warrant granting intervention."4/ (emphasis added)

Again in ALAB-250, the Appeal Board stated:

"In view of these circumstances, we adhere to the view that a recand is in order. We repeat that we arc asking for nothing more or less than an explanatien of why the technical specTfications were changed, with particular reference to whether consideration of leaking fuel played a part in the decision to make that change."5/ (emphasis added)

In Orders dated December 4 and December 6,1974, the intervention Board j

directed the Staff to supply the specified data and also provided an oppor-6/

tunity for Vermont Yankee and NECNP to respond. The Staff filed its responseT j

accompanied by two affidavits, on February 15, 1975 and the licensee and 3/ RAI-74-ll 873, 877 4/ RAI-74-12 933, 934

_5/ RAI-74-12 990, 002 p NRC Staff's Fesconse to Board Orders dated December 4,1974, and December 6, 1974 l

. p. 7 ,

NECNP responded on February 25 and February 28, 1975, respectively. The Staff in its response " states unequivocally that a specific fuel leakage rate for the existing fuel was not considered by the NRC Staff in authorizing the revised Technical Specifications of April 10, 1974. The Staff further states that the revised Technical Specifications were based on proposed Appendix I and 10 CFR 550.36a(b) to the extent that they

\ provide for operating flexibility or permissible variations from the' "as low as practicable" design objectives set forth in the revised Technical Specifications. These provisions for flexibility -(as they relate to gaseous releases) are provided in. Sections 3.8.C.1.b and 3.8.C.1.c of the revised Technical Specifications and are attached to the Staff's response.

We have examined the methods used by the Staff to establish the several limits on gaseous effluent releases. These methods are set forth in the Affidavit of Frederic D. Anderson, attached to the Staff's February 15, 1975 response, and in the " Bases" for the Technical Speci-El . 9) fications and are succinctly stated in ALAB-250. The Board has compared these procedures with the requirements of proposed Appendix 1 and finds them to be identical. In view of this, it is clear to this Board that the 7 -Ibid., p. 2 .

The " Bases" are not included in the excerpts from the Technical Speci-fications attached as Appendix A to the Staff's response, but they

+ were included in the miterial supplied by the Staff to all parties under

! cover of a letter of November 12, 1974, from David E. Kartalia to Micnael C. Farrar. Eso.

9f RAI-74-12 990, 991

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- 4-i leakage characteristics of the particular fuel involved did not play a J0) ..

part, and the Board so finds.

2. We come now to NECNP's request to amend its petition to' intervene by adding the following " alternative contention":

"There is inadequate evidence of the expected performance , -

of 8x8 fuel rods during normal operation and transients -

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5 to support a conclusion that the mechanical design-of 8x8 . .

'[li fuel will provide adequate protection for'the public health' -

and safety. The rods may be damaged by thermal stresses, .

internal and external gas and water pressures, frettingi -

~ vibrations, seismic loads, blowdown transients ~and other expected normal and accident conditions to the point where the public i alth and safety will be endangered by exces-sive release of radioactivity."

Its request it based on what it asserts is information not known to 4

it earlier than December 6,1974; namely, that the Appeal Board had rejected the factual basis for NECNP's earlier assumption that "all aspects of the nechanical performance of 8x8 fuel and its-ability to withstand normat operation and transients was well-established". The statemert on which this claim is based appears in ALAB-246 and is as follows:

"At this point in- the development of 8x8 technology-it would be premature to attempt to establish-different leakage rates for the two types of fuel. See ALAB-245, fn. 7."

The Applicant and the Staff have both responded to the effect that NECNP's use of this statement is a strained and improper interpretation l

}0/ The fact that some-fuel does leak to some extent, as well' asL the available methods for treating 1such leakage, was taken into account, of course, in the preparation of proposed Appendix I in j selecting the design objective of 2%.  !

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of a sentence taken out of context. This Board has carefully reviewed ALAB-246, as well as ALAB-245 and ALAB-250. Reading the Appeal Board's statement in-conjunction with the previous sentence _of that paragraph, the cited footnote and the other relevant positions of the decision, the Appeal Board's position, in'our view, can be paraphrased as follows:

\ \ NECNP's petition first seeks to establish on remand-a

" reasonable, general expectation" as to leakage rates for 8x8, as compared to 7x7, fuel rods. We have pre-viously stated that, generally, neither a change in m fuel nor a discovery that_a given batch of fuel.is performing above or below-expectations should provide a basis for a change in the' applicable limitations .cn releases. Over th .ong term, evaluation of stati.s-tica.ly significant amounts of operation with improved fuel may lead to reductions in the leakage rates that are " practicable" to achieve, but at this point in the development of 8x8 technology such experience.does not exist. For this reason it would be premature now to conclude that the expected leakage rate for the 8x8 fuel would be significantly different than that for the-7x7 fuel.11/

If our reading of the Appeal ' Board's position is correct NECNP's assertion--that the Appeel Board has rejected the factual- basis for the conclusion that the ability of 8x8 fuel to withstand normal-_ operation and transients is well-established--is without support. Under.these circumstances there is no grounds for NECNP's request to amend its petition to intervene and it is denied.- ~.In= view of this denial, we also deny 11/ We have received and considered the Staff's submittal .of March 13,  ;

1975, and NECNP's submittal of- March 17, 1975.- NECNP's point that experience with the .new fuel . continues: to accumulate is, of course, i correct. - In our view, however, the accumulation is not- yet.  !

sufficient to provide a statistical- basis for any changes.

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- 6-NECNP's request that we refer its request for a revocation or stay of the December 3, 1974, amendment to the Vermont Yankee license to a licensing board to be heard on its merits. ,

ATOMIC SAFETY AND LICENSING BOARD

\_s1:5 <k ? >b David B. Hall, Member (J )

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Lester_ Kornblith, Jr. , Member Dated at Bethesda, Maryland,'

this 24 th day of March 1975.

SEPARATE STATEMENT OF SAMUEL W. JENSCH:

If the issue specified by the Appeal Board for the remand is as narrowasbelievedtobebymycolleagues,i.e.,whethertheleakrate in the fuel which was authorized prior to April 10, 1974 was so excessive, that for that reason, the Staff changed the technical specifications to what the Appeal Board termed were less stringent technical specifications, then to that extent, I believe the Staff, in its February 15, 1975 submittal, has presented data that satisfactorily answer that issue.

It is not my impression, however, that the Appeal Board so narrowly 1

limited the remand considerations. The Appeal Board stated in ALAB-245: l l

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" .... The Commission's 'as low as practicable' regu-lations require that a number of factors, including any hazard to public. health, be considered in ascer-taining the appropriate limitations on emissions.

Some degree of fuel leakage must always be anticipated.

Of necessity, then,-a factor representing fuel leakage must be considered in determining what is 'as low as practicable'. The only sensible approach consistent with the purpose of the regulations is to take into account the reasonable, general expectation for the rate of fuel leakage. . In our opinion, the limitations thus established should not, in the _ absence of extra-ordinary circumstances, be varied to take account either of fuel which proves to have an excessively high leakage rate or of fuel which proves to be of exceptionally good '

quality."

"This being the case, neither a change in fuel nor .

a dis Svery that existing fuel rods are performing either well above or well below expectations, should provide a basis for a change in the applicable limitations on releases.Z/"

The footnote is as follows and serves as a' basis for further identification of the petitioner's contention:

"Z/ On the other hand, informatien developed over the long

term as to what can be reasonably expected in terr; of fuci performance could affect what is ' practicable' to achieve. In other words, what is relevant is the'stan-dard expected to be met, rather than the actual l performance of one lot of fuel ."

The foregoing quotations are utilized. by the petitioner for its

.f contention that an evidentiary hearing is needed to develop whether the

" extraordinary circumstances" exist to warrant a change in technical j specifications and whether the "long term" has occurred toLpermit I development of data to assist in the determination of the relevant

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i -1 standard expected to be met by the operation of the 8x8 fuel.

The additional portion of ALAB-245 is impliedly considered by petitioner for its contention:

"During the reactor's operating lifetime, developments ,

may occur over the long term which could affect earlier beliefs as to what is. ' low as practicable'. Some developments may warrant investigation to determine whether emission limits should be revised."

In other words, petitioner assumes that the Appeal Board agrees that at-some time, emission limits may be or need to be reduced and petitioner urges that the time for that consideration is now.

In ALAB-246, the Appeal Board stated:

"NECNP's petition first seeks the right to establish on remand a ' reasonable, general expectation' as to leakage rates for the 8x8..as compared to 7x7, fuel rods.

At this point in the development _of 8x8 technology it would be premature to attempt to establish different ,

leakage rates for the two types of fuel."

In further filings by the petitioner, it is contended that tne data are not identified for declaring prematurity for setting different leakage rates, and in any event, petitioner contends that different leakage rates should be established since it is possible to do so.

The Appeal Board in ALAB-250 concluded th'at on the basis of the record for the operating 1fcense, the Board understood that releases from-the plant "... would be kept, on the average, to the 1 and 2% levels"  !

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and that "... the present technical specifications permit the 1 and 27 levles to be exceeded on a regular basis by 100% without any corrective action being requireG."

Basically, however, this proceeding involves 8x8 fuel. The Comission issued a notice of proposed changes by amendment to operating license and a change in technical specifications, and provit 'er an opportunity for hearing (39 Federal Register 24,046, June 28, 1974). The notice referred to a proposed amendment to permit 8x8 fuel assemblies, and to a proposed revision _of Technical Specifications limiting the conditions for operation assooiated with fuel densification for the fuel assemblies.

NECNP has sought a hearing-by its petition that contends that if-the 8x8

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fuel is better, then a rate lower than for the previously authorized 7x7 fuel and at a level as low as practicable should be established.

Opposition by Applicant-and the Staff to the petition asserted that such an analysis would be re-doing the low as ' practicable rulemaking hearing..

The Appeal Board dismissed that assertion as-invalid.

12f The Appe ' Board has noted that no opportunity for a _ hearing was provided oy the procedure adopted to change-the. technical speci-fications which was accomplished in April 1974, shortly after the

= Appeal Board had approved the technical specifications. presented-in the evidentiary hearings-held in reference to the operating j license. ,

The Staff explanation for the April 1974 change in tech specs was to confom to a proposed regulation I. The specifics for the proposal were. initiated in July 1973, and could have been incorporated in the' tech specs during the course of_and be con-sidered.in the appellate review.

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Applicant has stated that the proceeding contemplated by the Commission's published notice "... involves the mechanical and nuclear design of the 8x8 fuel as well as the analyses of abnormal operational transients and design basis accidents of that fuel." The Staff likewise asserts that the scope of the proposed amendment and changes relates to the thermal, hydraulic and mechanical design of the fuel and their adequacy and the fuel's performance under anticipated transients and accident conditions.

Applicant " hopes" that the 8x8 fuel will not have hydriding problems as dij the originally loaded 7x7 fuel. The further NECNP contention is that if a rate for leakage for 8x8 fuel cannot be established now, then NECNP contends that something must be wrong (enumerating several possibilities, such as: wall thickness, thermal stress, vibrations, gas and water pressures, etc.) with the 8x8 fuel,.

either as to its mechanical perfonnance or structural integrity. The Applicant implies that the 8x8 fuel is not mechanically imperfect nor lacking in structural integrity. The question raised by the petitioner whether operating experience is needed, in order to ascer-tain what the level of leakage should be, presents a further problem.

I This can be illustrated by the concept of what the putlic concern would be if a new model of an automobile were allowed to wobble all over the highway until operating experience could develop whether the steering i -

gear mechanism would finally take hold and render the auto safe on the i

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. 11 i- highway. Or, to be conservative, to consider the possibly unlikely and incredible occurrence, the steering gear mechanism may not work, and the car could run amuk in the traffic. The contention of the intervenor is that some demonstration of safety should be made or a level of release rates of the 8x8 fuel should be established, before-the public is exposed to the use of the fuel.

4 The views of the parties are thus in conflict about facts which could be resolved by a hearing. The petition for intervention also refers .to allegations that fuel densification is no longer a limiting condition but that reference .,ay be a part of the contention respecting low as practicable releases. In my opinion, it'is not clear that at the present time there is an adequate record of facts to warrant the several conclu-sions made respecting the 8x8 fuel, so that evidence would assist in a determination of whether a leak rate can be established at this stage in the operating history. The, leakage rate is a safety consideration that need not be postponed to some future and indefinite. time. The petitioner's contention might.be answered by a dissertation that could be examined of why a demonstration of leakage rate is not available or necessary, or possibly, but of least usefulness, .by_ a calculation of._the safety of the leakage rate of the 8x8 fuel, with its . steering' gear importance. I woulti grant the petition to intervene, permit a hearing board to specify the precise scope of' the. issues, and let this. matter be resolved on an _

evidentiary record.

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~$amuel W. Jensch g li I t

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