ML20140B214

Response Opposing Applicant 810821 Motion to Dismiss Joint Intervenors Contention 28 Re Hydrogen control.ALAB-218 Does Not Support Dismissal.Rulemaking Commencement Does Not Preclude Litigating Issue.Certificate of Svc Encl

ML20140B214
Person / Time
Site:	Waterford
Issue date:	09/10/1981
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
ALAB-218, NUDOCS 8109140100
Download: ML20140B214 (7)

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< 09/10/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the !btter of ]

LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382 m

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s NRC STAFF'S RESPONSE TO APPLICANT'S MOTION f. -

TO DISMISS JOINT INTERVEN0RS' CONTENTION 28 /j. 'e (HYDR 0 GEN CONTROL) '$/7T20

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Jn August 21, 1981, Louisiana Power & Light Company (" Applicant") filed i its " Motion to Dismiss Joint Intervelors' Contention 28 (Hydrogen Control)"

(" Motion"). In its Motion, the Applicant asserted that the issues raised by Contention 28 "have now become the subject of a general rulemaking" by che Commission and, accordingly, that those issues "cannot be litigated in this individual operating license proceeding" (Motion, at 1). For the reasons set forth below, the NRC Staff (" Staff") opposes the Applicant's Motion l and recommends that it be denied.

Background and Introduction Contention 28 was filed along with five other TMI-related contentions by Intervenors 0ystershell Alliance, Inc. and Save Our Wetlands, Inc.

("JointIntervenors"),onDecember 10, 1979. It asserts as follows:

28. Applicant has not presently plans which demonstrate how it will 1)provided prevent adequate the creation and accumulation of free hydrogen from forming in the pri-mary system during a Nuclear Emergency; 2) alleviate the accumulation of dangerous quantities of hydrogen within the containment.

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On December 26, 1979, the Applicant filed its response to the Joint Intervenors' THI-related contentions,Ei n which it stated that it "has no present objection to these additional contentions but reserves the right at a later date to move to strike Contention 28" on the grounds, in part, that it raises a generic issue which would more appropriately be addressed in a new rulemaking proceeding recommended by the Final Report of the Lessons Learned Task Force, if such a rulemaking proceeding were to be adopted by the Commission.E On January II,1980, the Atomic Safety and Licensing Board (" Licensing Board") admitted as issues in controversy all of the Joint Intervenors' TMI-related contentions, including Cortention 28, and noted that it was allowing the Applicant to reserve the right later to movetostrikeContention28.E On October 2,1980, the Commission published in the Federal Register a proposed rule entitied " Interim Requirements Related to Hydrogen Control E " Applicant's Response to Joint Intervenors' Additional Contentions,"

dated December 26, 1979.

E Id. , at 2.

E rder O dated January 11,1980, at 1. As indicated by the Licensing Board, the Staff had supported the admission of the Joint Intervenors' Tril-related contentions. See "NRC Staff Response to % ended Conten-tions of the Louisiana ConTuliier's League, Inc. and Joint Intervenors (Save Our Wetlands, Inc. and 0ystershell Alliance, Inc.)," dated December 31, 1979.

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and Certain Degraded Core Considerations" (45 Fed,. R_e_g. 65,466), which would amend 10 C.F.R. 9 50.44 and introduce a new b 50.44a. At the same time, the Conaission published an advance notice of proposed rulemaking, entitled

" Consideration of Degraded or Melted Cores in Safety Regulatio" (45 Fed.

Reg. 65,474), which was to include consideration of whether systems for con-

i. rolling hydrogen combustion should be incorporated into containment design.

Discussion An analygis of Contention 28 and of the brief elaboration upon that contention provided by the Joint IntervenorsO leads the Staff to conclude that many issues raised by the contention are to.be addressed by the rule-making proceeding announced by the Commission. Thus, Contention 28 questions the adequacy of Applicant's design for " prevent [ing] the creation and accumulation of free hydrogen ... during a Nuclear Emergency" and its means of "alleviat[ing] the accumulation of dangerous quantities of hydrogen within the containment." In their Answers to the Applicant's Interroga-tories.N the Joint Intervenors indicate that the amount of hydrogen generated during the TMI-2 accident must be anticipated to occur at the O Se_e," Joint Intervenors Answers to Applicant's Supplemental Interroga-tories" (" Answers"), dated April 24, 1980. Those Answers were pro-vided in response to interrogatories filed by the Applicant after the Joint Intervenors' TMI-2 related contentions were admitted fo" litigation.

See " Applicant's Interrogatories on TMI-2 Related Contentions of Joint Intervenors" (" Interrogatories"), dated February 19, 1980.

E ee S n.4, supra.

Waterford facility.5/ In addition, the Joint Intervenors state that the Applicant's FSAR is inadequate, as follows: E Section 6.2.5 of the FSAR does not adequately provide plans for the elimination of dangerous hydrogen quantities in the following areas:

(1) Containment Hydrogen Indication 2.1.9 of " Discussion of Lessons Learned Short Term Requirements."

(2) Dedicated H, Control Penetrations 2.1.5a of the some reference.

(3) The Combustible Gas Control System is designed to control a 4% cladding reaction [FSAR 6.2.5.3(b)]. This gives

' an error factor of 5 over the accident design level of 10 CFR 50.46(3). However, Three Mile Island, Unit 2 suffered cladding failure of 44'-63* (Kemeny Commission Report, page 30). The CGCS is underdesigned, therefore, by an order of magnitude.

As noted by the Applicant (Motion, at 4), each of the concerns i

l raised by the Joint Intervenors is addressed by the Commission's proposed rule: Hydrogen indication is addressed at 45 Fed. M. 65,470-71; hydrogan control penetration is addressed at 45 Fed. R_eg. 65,468; and the percentage of cladding reaction is addressed at 45 Fed. _ Reg.e 65,466-68. Similarly, the advance notice of proposed rulemaking published by the Commission indi-cates that hydrogen combustion control is to be addressed in that proceeding on a generic basis. 45 Fed. Reg. 65,476.

Notwithstanding the pendency of rulemaking in this area, the Staff believes that the Applicant incorrectly relies upon the Appeal Board's decision in Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974), as a basis for dismissing Contention 28.

5/ oint J Intervenors' Answers to Applicant's Interrogatories, n.4 supra, Answer to Interrogatory No. 28-1, 1! Id. , Answer to Interrogatory No. 28-3.

Thus, while the Appeal Board stated that " licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Comis-sion" (8 AEC at 85),U the mere fact that a rulemaking proceeding has commenced does not lessen an applicant's obligation to corply with existing regulatory requirements or the Licensing Board's duty to make a finding as to such compliance upon any properly admitted contention.

Accordingly, the Applicant's compliance with existing regulations such as 10 CFR 550.44 is litigable.

Under present regulatory requirements related to hydrogen issues, the Commission has clearly indicated that the issue of hydrogen generation and control is litigable also under the provisions of 10 CFR Part 100, notwithstanding the fact that an applicant may have complied with 10 CFR 950.44. Thus, the Comission has stated that the issue of post-accident hydrogen control may be litigated under 10 CFR Part 100, if it is determined that there is "a credible loss-of-coolant accident 4

scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiation doses in excess of Part 100 guideline values." Metropolitan Edison Co. (Three Mile Island Nuclear l Station, Unit No. 1), CLI-80-16, 11 NRC 674, 675 (1980). In the present I

proceeding, however, it is not clear to the Staff whether the contention 8 ee S also, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

CL1-76-28, 4 HRC 618 (1976), aff'g ALAB-355, 4 NRC 397, 417-18 l

i (1976); Tennessee Valley Authority (Hartsville Nuclear Plant, Units l 1A, 2A, 1B and 2B), ALAB-367, d NRC 92, 107 (1977).

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seeks to litigate the likelihood of radiation releases under 10 CFR Part 100 or compliance with existing regulations, or solely compliance with proposed rules now the subject of rulemaking. The Staff intends to give further consideration to this matter and if warranted, will file an appropriate motion with the Licensing Board. At this time, however, the Staff believes that the grounds for dismissal asserted by the Applicant do not support the dismissal of the contention.

CONCLUSION For the reasons set forth in greater detail above, the Staff opposes the Applicant's Motion and recommends that it be denied.

Respectfully submitted, lo b Sherwin E. Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 10th day of September,1981

UNITED STATES OF AMERICA liUCLEAR REGULATORY COMMISSION BEFORE THE AT011IC SAFETY AND LICENSING BOARD In the Matter of LOUISIANA POWER AND LIGHT COMPANY Docket No. 50-382 (Waterford Steam Electric Station, )

Unit 3) )

CCRTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO APPLICANT'S MOTION TO DISMISS JOINT INTERVENORS' CORTENTION 28 (HYDR 0 GEN CONTROL)" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 10th day of September, 1981:

Sheldon J. Wolfe, Esq., Chairman

• Lyman L. Jones, Jr. , Esq Administrative Judge Gillespie & Jones Atomic Safety and Licensing Board P.O. Box 9216 U.S. Nuclear Regulatory Commission Metairie, LA 70005 Washington, DC 20555 Luke B. Fontana, Esq.

Dr. Walter H. Jordan 824 Esplanade Avenue Administrative Judge New Orleans, LA 70116 881 West Guter Drive Oak Ridge, TN 37830 Malcolm Stevenson, Esq.

Monroe & Lemann Dr. Harry Foreman 1424 Whitney Building Administrative Judge New Orleans, LA 70130 Box 395, Mayo 7

University of Minnesota Atomic Safety and Licensing Board

! Minneapolis, MN 55455 Panel

• U.S. Nuclear Regulatory Comission E. Blake, Esq. Washington, DC 20555 George F. Trowbridge, Esq.

Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Appeal 1800 M Street, N.W. Panel (5)*

Washington, DC 20036 U.S. Nuclear Regulatory Comission Washington, DC 29555 Stephen M. Irving, Esq.

535 North 6th Street Docketing and Service Section (1)*

l Baton Rouge, LA 70802 Office of the Secretary i U.S. Nuclear Regulatory Comission Washington, DC 2C555 hlAAU) {

Sherwin E. Turk Counsel for NRC Staff