ML20138B403
| ML20138B403 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 10/10/1985 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20138B407 | List: |
| References | |
| CON-#485-760 OL, NUDOCS 8510150354 | |
| Download: ML20138B403 (10) | |
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i UNITED STATES OF AMERICA <.m NUCLEAR REGULATORY COMMISSION c;IdC ;"
Before the Atomic Safety and Licensing Appeal BoarA c5 Oct p P1 :24 In the Matter of )
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SRANCH THE CLEVELAND ELECTRIC ILLUMINATING ) DocketNos.50-440p-COMPANY, ET A.I.. ) 50-441
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(Perry Nuclear Power Plant Units 1 and 2) )
APPLICANTS' ANSWER TO OHIO CITIZENS FOR RESPONSIBLE ENERGY'S " MOTION FOR A STAY PENDENTE LITE" Applicants respond herein to the September 25, 1985 Motion for a Stay Pendente Lite (" Motion") filed by Ohio Citizens for Responsible Energy
("0CRE").1/ For the reasons set forth below, OCRE's motion should be denied.
I. OCRE HAS FAILED TO SHOW IRREPARABLE INJURY Of the four factors to be considered in passing upon a stay application,2/
the most crucial is whether irreparable injury will be incurred by the movant 1/ OCRE's motion requests the Appeal Board to stay the effectiveness of the Atomic S'afety and Licensing Board's ("ASLB's") Concluding Partial Initial Deci-sion on Emergency Planning, Hydrogen Control and Diesel Generators, LBP-85-35, 22 N.R.C. _ (September 3,1985) (served September 4,1985) ("PID"), and the ASLB's Memorandum and Order (Denying Motion for Summary Disposition on OCRE Issue No. 6 and Dismissing the Contention), LBP-84-40, 20 N.R.C. 1181 (1984).
2/ The four factors are: (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless a stay is granted; (3) whether the granting of a stay would harm other parties;.and (4) where the public interest lies. 10 C.F.R. 5 2.788(e). The burden of persuasion in satisfying the four part test rests on the moving party. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 N.R.C. 795, 797 (1981).
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absent a stay.3/ OCRE fails to demonstrate that imminent and irreparable harm will result if its stay request is denied. The Affidavits of Dr. Carl J.
Johnson and Ms. Susan L. Hiatt, attached to OCRE's motion, fail to establish any actual or imminent threat to the public health or safety.4/ OCRE's arguments about the risks of a severe nuclear accident (Motion at 7) are at best specula-tive, and do not amount to a showing of immediate, irreparable harm.5/ OCRE's argument regarding the potential mooting of OCRE's Issue #6 (Standby Liquid Con-trol System ("SLCS")) appeal, Motion at 8-9, also fails to establish irreparable injury.s/ OCRE does not even attempt to show any harm that would result to OCRE l
3/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-77-27, 6 N.R.C. 715, 716 (1977). See Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-81-30, 14 N.R.C. 357, 360 (1981)
(movant must show that alleged threats of irreparable injury are not remote and speculative, but are actual and imminent.)
4/ See Affidavit of Dr. Leonard D. Hamilton (attached). The Appeal Board has emphatically rejected Dr. Johnson's assertions about increased incidence of can-cer from low-dose radiation exposure. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1090 (1983) ("In short, we find Dr. Johnson's testimony to be of essentially no value with re-spect to the staff and applicant dose estimates for Vaterford 3"); see also Johnston v. United States, 597 F. Supp. 374, 415-17 (D. Kan. 1984) ("In order for this Court to credit the rationale of Dr. Johnson, this Court would have to ignore the international and national scientific consensus on this point . . . .
Once again, either Dr. Johnson is correct or the rest of the world is correct.
This Court has no faith in Dr. Johnson's opinions").
5/ See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-5, 19 N.R.C. 953, 964 (1984) (speculation about a nuclear accident does not, as a matter of law, constitute the imminent, irreparable in-jury required for staying a licensing decision). As shown in the attached Affi-davit of Dr. Deborah A. Hankins, a realistic assessment of the consequences of a severe, low-probability core-melt accident at Perry shows that the risk is in-significant. See PID, Finding 46.
6/ See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-810, 21 N.R.C. 1616, 1620 (1985) (the potential mooting of an appeal does not in itself constitute irreparable injury; the activity that will take place in the absence of a stay must also cause concrete harm).
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if'an automated'SLCS is not installed pending OCRE's appeal on Issue #6. At any rate, OCRE's argument that a stay would prevent mooting of OCRE's appeal by avoiding the'" costs of downtime" associated with automating the SLCS (Motion at
- 9) is without basis. See Affidavit of Gary R. Leidich (attached) (costs of
" downtime," i.e., delayed operation of the plant, if SLCS were required to be automated estimated to be a minimum of $88.2 million). Finally, OCRE's argu-ments on Issue #8 (Hydrogen Control) cannot constitute irreparable injury suffi-cient to justify a stay of fuel loading and low power operation, since the Com-mission by regulation has tied compliance with the Commission's new hydrogen control requirements to operation above 5*. power.7_/
II. A STAY WOULD RESULT IN SUBSTANTIAL ECONOMIC INJURY TO OTHER PARTIES The attached Affidavit (. Murray R. Edelman demonstrates that a stay would result in substantial economic injury to Applicants, their stockholders and/or customers.8/ As shown by Mr. Edelman's affidavit, the costs of a stay would be at least $2.1 million per day, even without considering the costs of replacement power.
7/ ,It is uncontroverted that Applicants' hydrogen control system, and Appli-cants' preliminary analysis justifying the system, need not be completed until full power operation under 10 C.F.R. 5 50.44(c)(3)(vii)(B). See, e.g., OCRE Proposed Findings of Fact and Conclusions of Law in the Form of A Partial Ini-tial Decision (Issue #8, Hydrogen Control) (June 13, 1985) ("0CRE'PFC") at 15.
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8/- See 10 C.F.R. I 2.788(e)(3). OCRE's suggestion that cost increases'due to a stay are not a " relevant" consideration (Motion at 9) is clearly wrong. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-808,-21 N.R.C. 1595, 1603 (1985); see also Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 N.R.C. _
(August 1, 1985), slip op. at 5.
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III. OCRE HAS FAILED TO SHOW THAT A STAY WOULD BE IN THE PUBLIC INTEREST For the reasons noted above, OCRE has failed to demonstrate either a seri-ous safety concern,9/ or serious environmental harm,M/ to establish that a stay would be in the public interest. See 10 C.F.R. I 2.788(e)(4). Indeed, to the extent that unnecessary costs resulting from a stay will be passed on to rate-payers, a stay would not be in the public interest. H/
IV. OCRE HAS FAILED TO SHOW THAT IT IS LIKELY TO SUCCEED ON TFE MERITS Because its showing on the other factors is weak, OCRE must make an overwhelming' showing that it is likely to succeed on the merits.M/ ' OCRE has
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provided no basis -- let alone an overwhelming basis -- for the Appeal Board to conclude that OCRE is likely to prevail on the merits.
With respect to Issue #8, OCRE first argues that the ASLB erred in failing to evaluate the adequacy of the implementing procedures for Applicants' hydrogen control system. Motion at 3. Contrary to OCRE's claim, the ASLB did not find the adequacy of the hydrogen control procedures " material to licensing."M/
9/ See Southern California Edfson Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 N.R.C. 688, 692 (1982).
M/ See Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2),
ALAB-414,-5 N.R.C. 1425, 1434 (1977).
M / ALAB-414, supra, 5 N.R.C. at 1434 n.20.
-M / CLI-81-27, supra, 14 N.R.C. at 797.
M / OCRE's reliance on Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir._1984) is misplaced. In that case, the Court held that the evaluation of emergency preparedness exercise results was a material licensing issue which NRC could not exclude from a licensing proceeding. This conclusion was based on
_-an NRC regulation which made the exercise results a precondition to licensing.
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f- ) Rather, the ASLB considered and rejected the arguments. offered by OCRE to sup-i f port the claim that the procedures are of sufficient complexity to warrant' fur-ther. detailed consideration.14/ See PID at 27-28, 123, Finding 85. Thus, the l'
ASLB gave adequate consideration to the issue of procedures.1_5/ 5 lL . ;OCRE next questions the ASLB's treatment, PID at'28, of OCRE's' arguments-on ,
potential radioactive releases.from containment venting.- Mation at 3 16/ OCRE_ .
waspermitted[toexplorecontainmentventinginthehearing. The evidence indi ' ,
cated that the venting.and offsite dose issues raised by OCRE are being ade '
quately handl$d by Applicants in a manner consistent'with the Commissios n regu-lations.17/ OCRE's motion deals selectively with the ASLB's reasoning and' fails 2 to explain how the issue of " radioactive releases from containment venting" 9
. calls into question the ASLB's ultimate determination regarding the adequacy of Applicants' hydrogen control system.18/ -
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j 735 F.2d at 1438, 1442-43. Inthiscase,thereisnothingin'th'ehydrogenrule,
.or in OCRE's contention, that required the ASLB to examine the detailed imple-menting procedures for the hydrogen control system in order to find that1 the 'hy- m drogen control system would comply with the hydrogen control rule. See Appli- ,
'J cants' Reply to Proposed Findings of Fact and Conclusions of Law Filed by the. '
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- other Parties -(Hydrogen Control) (July 1,1985) (" App.
- Reply), at .10-11. ,!
i M/ The record also includes testimony setting forth the general-approach to be incorporated in the procedures for the hydrogen control. system. Sy App. Reply at 10-11. OCRE had fo11' opportunity to cross-examine this testimony.
M/. - Cf. ; ALAB-732, supra, 217 N.R.C. at' 1106-07 : (implementing procedures for ap-plicant's emergency plan not required for " reasonable assurance',' fitiding'; 11-censing hearings should-not become " bogged down with litigation about'such de--
tails"). 53 App. Reply at n.7.
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1_6/ . See OCRE'PFC at 15. .
I' H/ E 1 , Tr. 3599-3600.-(Buzze111) (demonstrating that current design basis'
(. .offsite dose' values are conservative).
.18/ OCRE's reliance on Metropolitan Edison Co. (Three Mile Island Nuclear,Sta-tion, Unit No.11), CLI-80-16,11 N.R.C. 674- (1980),- Motion at 3, is misplaced.1 a
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OCRE's assertion, Motion at 4. that the ASLB " refused te accept its respon-sibility" to determine Applicants' compliance with 10 C.F.R. $$ 50.44(c)(3)
(vii)(B) and 50.57(a)(2), is also without basis. The ASLB clearly held that
" Applicants' preliminary analysis as described in the preliminary evaluation re-port and in Applicants' testimony, and as approved by the Staff and discussed in Staff.'s testimony, does address in detail the substantive provisions of the hy-drogen rule." See PID at 25, 54-59.19/ The ASLB's standard of acceptance, "whether there is reasonable assurance of safety during operation at Perry based on our assessment of the record that was actually developed," PID at 26-27, is in accord with the standards set forth in 10 C.F.R. 5 50.44(c)(3)(vii)(B), as well as 10 C.F.R. $ 50.57(a)(3).20/ The standard is therefore not." illegal," as OCRE contends. -
OCRE cites a number of examples in which the ASLB allegedly " relied upon ipse dixit averments of the witnesses and other material that was not in the record and was incapable of being examined by OCRE." Motion at 4-5. Contrary to OCRE's assertions, the ASLB dealt appropriately with all the examples which (Continued) since that decision pre-dated the enactment of the hydrogen control rule which is the basis of OCRE's reworded contention. S_e_e PID at 22-23.
19/ Indeed, the PID provides in great detail the bases for the ASLB's conclu-sion that Applicants' hydrogen control system, and supporting preliminary analy-sis, meet the hydrogen rule. There was no necessity for the ASLB to " define the precise boundaries that separate the preliminary analysis from the final analy-sis because the Applicants submitted an extensive and detailed analysis of hy-drogen combustion during degraded core events at Perry." PID at 54. b Appli-cants' Proposed Findings of Fact and Conclusions of Law (Hydrogen Control)
(June 3, 1985) (" App. PFC") at 10-15, 20/ The ASLB clearly spelled out at pages 54-59 of the PID how it applied this general standard to the preliminary analysis requirements of the hydrogen rule.
OCRE raises.21/ OCRE failed during the hearings, and fails in its motion, to show any unreliability of the cited testimony, and fails to substantiate its claim that the testimony relied upon by the ASLB was not susceptible of being tested on examination of the witnesses at hearing. Moreover, OCRE's motion fails to suggest how any of its assertions, even if correct, calls into question Applicants' compliance with the Commission's hydrogen control rule.22/
21/ OCRE's argument regarding testimony on " analyses of stresses at defective welds in the containment vessel at 50 psig" (Motion at 4; is without basis.
OCRE itself failed to ask Applicants to furnish copies of the underlying calcu-lations, and asked no questions about the calculations that the witness was un-able to answer. OCRE does not offer any reason to question the witness' testi-mony, and fails to explain why a review of the underlying calculations is required. gee PID at 31-32.
The testimony by Dr. Lewis on flame speeds, cited by OCRE (Motion at 4),
was hardly an unreliable "ipse dixit averment" of a witness. The Appeal Board has recognized the special competence of Dr. Lewis to address the hydrogen con-trol issue. gee Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 N.R.C. 453, 471 & nn. 37 & 39 (1982). Moreover, OCRE did exam-ine Dr. Lewis on the statement. gee Tr. 3520-22 (Lewis). In any case, the ASLB's conclusions as to the adequacy of Applicants' analysis clearly do not depend on the flame speed testimony cited by OCRE. gee PID at 40.
OCRE's argument regarding Applicants' testimony on drywell leakage of hy-drogen (Motion at 4) is refuted in Applicants' Proposed Finding 106, and in Ap-plicants' Reply Findings at 48 and n.26. As noted by the ASLB, PID at 45, there was ample testimony demonstrating that Applicants had adequately considered the effects of drywell leakage on the operation of the igniter system.
OCRE's complaint about the ASLB's treatment of testimony relating to Grand Gulf analyses is without basis. OCRE's argument on the unavailability of the Grand Gulf drywell capacity analysis (Motion at 4-5) is refuted in Applicants' Reply Findings at 25-26. See Applicants' Proposed Findings 71-72. Similarly, OCRE fails to show how Applicants', Staff's, and the ASLB's consideration and use of Grand Gulf's equipment survivability analysis was improper, inconsistent with the hydrogen rule, or prejudicial to DCRE. gee Applicants' Proposed Find-ings 111-112. OCRE's argument about the unavailability of analyses of secondary fires also must fail, since the ASLB heard sufficient credible evidence on this issue during the hearing. gee Applicants' Proposed Finding 115; App. Reply at 49-50. OCRE falls to support its claim that the analyses were improperly withheld, or even requested, during discovery. See Motion at 5.
22/ See ALAB-673, supra, 15 N.R.C. at 692, aff'd, CLI-82-ll, 15 N.R.C. 1383, 1384 n.2 (1982) (movant failed to show legal error prejudicial to licensing board's ultimate conclusion) .
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OCRE is>also incorrect in its assertion that "the Board ignored substantial evidence in the record contrary to its conclusions." Motion at 5. OCRE sug-t gests that the AEL"; ignored "the severe criticisms of the CLASIX code." The criticisms were not ignored; the ASLB explained at length why 'it[ discounted them. PID at 38-40, 101-02. OCRE's example of a statement <by Sandia w'nich che ASLB allegedly ignored (the effect of igniter location cud spray shield), Motion at 5, is similarly flawed; the ASLB considered the evidence and reached a dif-ferent conclusion.2_3/ Similarly, OCRE's assertion that the ASLB ignored infor-mation in OCRE Ex. 18 regarding credit for annulus concrete, Motion at 5, is no more than a disagreement with the ASLb's weighing of the evidence. S_ee App.
Reply at 19; PID at 31-32.2_4/ Finally, OCRE argues that the ASLB's treatment of 1
Applicants' containment spray-availability assumption was " contrived." Motion at 5. OCREfailstoaddressthekSLB'sreasoning,PIDat43-44,whichiscom-pletely consistent with the r$ cord developed by Applicants and Staff on this issue.25/
23/ There was a substantial, reliable record basis, for the ASLB to conclude that the hydrogen igniter location, and the igniter spray shield configuration, would not affect combustion characteristics. See'the portions of the PID cited by OCRE at page 5 of its motion; App. Reply at 39-40 (which also refutes OCRE's claim that "[t]he Board similarly ignored experimental data (NTS tests, Tr. l 3627) substantiating Sandia's concerns."' Motion at 5). '
24/ In any case, the annulus concrete issue was not central to the'ASLB's ac-ceptance of Aptech's analysis, which is discussed at length by the ASLB. Sy PID at 31-32, Findings 100-104 Moreover, the annulus concrete was considered by Applicants in analyses subsequent to Aptecij's analysis. PID.at 32.
25_/ OCRE's claim, that the Staff believes that spray availability is question-able, Motion at 5, is a mischaracterization of the record. The Staff has re-viewed and approved Applicants' spray availability assumption in the Perry pre-liminary analysis. See, e.g., Testimony of Allen Notafrancesco on the Hydrogen Control Issues Contained in the Licensing Board Contention #8, ff. Tr. 3276, at 5, 7; see also Applicants' Proposed Finding 104; App. Reply at 44.
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m OCRE makes two peripheral attacks on the PID with respect to Issue #16 (Diesel Generators). Motion at 5-6. Although a statement relating to cylinder block inspection intervals noted in the PID was corrected by the witness, see Motion at 5-6, the inspection interval itself is amply supported by the record.26/ The second claim, that the ASLB ignored a Staff witness' disapproval of Applicants' engine foundation evaluation, is without support.27/ And, even if OCRE were to prevail on these arguments, OCRE has failed to demonstrate that the ASLE's ultimate conclusions on Issue #16 would change. See ALAB-673, supra, 15 N.R.C. at 692.
With respect to Issue #6 (SLCS Automation), OCRE argues that the ASLB ig-nored the legislative history of the rule on Anticipated Transients Without Scram ("ATWS"), improperly delegated to the Staff the SLCS issue for Unit 2, and ignored generic Staff analyses underlying the ATVS rule. Motion at 6-7. All three arguments lack basis. The ASLB majority considered the history of the ATVS rule and rejected OCRE's interpretation. LBP-84-40, 20 N.R.C. at 1183-85, 1187-91. With respect to the delegation argument, the ASLB did not expressly exclude Unit 2 from its decision. Even if it had, after finding manual initiation of the SLCS for Unit 1 acceptable, it would have been unnecessary to make a separate finding for the same SLCS system in Unit 2. Cf. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-811, 21 26/ The ASLB, in accepting the 572 hour0.00662 days <br />0.159 hours <br />9.457672e-4 weeks <br />2.17646e-4 months <br /> inspection interval for cylinder blocks, noted that emergency power would not be needed for core cooling purposes for more than week. PID at 72. Although the witness cited by the ASLB cor-rected this statement, Tr. 2274, the ASLB still correctly accepted the 572 hour0.00662 days <br />0.159 hours <br />9.457672e-4 weeks <br />2.17646e-4 months <br /> inspection interval in view of the substantial conservatisms in that value. Tr.
2269-73; PID at 72-73.
27/ The witness did not disapprove Applicants' evaluation, but rather stated that he wanted more information. Tr. 2417. Applicants' witness provided this information and the ASLB found it persuasive. PID at 74-75, Findings 199-200, N.R.C 1622,.1627-28 (1985). With respect to OCRE's third argument, the ASLB rejected OCRE's request for a site specific" analysis, and ruled that OCRE's
" flexible" interpretation of the AWS rule was' unwarranted, and that the lan-guage of the rule should be applied to implement the Commission's generic AWS resolution. LBP-84-40, 20 N.R.C. at 1190.
V. CONCLUSION For the reasons set forth above, a balanc.ing of the four factors in 10 C.F.R. $ 2.788(e) weighs decisively against the granting of a stay pending ap-peal. OCRE's motion should therefore be denied. <
Respectfully submitted,
- SHAW, PITTMAN, POTTS & TROWBRIDGE BY: E. 'Silberg, P.C. I y I. Glasspiegel j haql A. Swiger Rose Aan C. Sullivan Counsel for Applicants 1800 M Street.:N.W.
Washington, D.C. 20036 (202) 822-1000 DATED: October 10, 1985 m