ML20141G727
| ML20141G727 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 02/24/1986 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#186-191 OL, NUDOCS 8602260330 | |
| Download: ML20141G727 (9) | |
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February.24,1986 00CMETED USNRC UNITED STATES OF Alt! ERICA D
3 NUCLEAR REGULATORY COMMISSION GFFICE CF ::.c BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD 00CHET.r
- m jc In the Matter of
)
)
CLEVELAND ELECTRIC
)
Docket Nos. 50-440 OL ILLUMINATING COMPANY, ET AL. )
50-441 OL
)
(Perry Unclear Power Plant,
)
Unite 1 and 2)
)
NRC STAFF RESPONSE TO OCRE f.!OTION TO STRIKE NRC STAFF AFFIDAVIT I.
INTRODUCTION By Memorandum and Order issued January 3, 1986, the Atomic Safety and Licensing Appeal Board (Appeal Board) in the captioned proceeding directed Ohio Citizens for Responsible Energy (OCHE),
Cleveland Electric Illuminating Company et al. (CEI or Applicants) and the NRC Staff (Staff) to respond to two questions concerning the hydrogen control issue presently on appeal.
The three parties provided j
their responses on January 29, 1986.
The Staff's response included an affidavit by a member of NRC Staff.
By motion dated February 3,1986,
't CCRE requested the Appeal Board to strike the Staff's affidavit.
The j
Staff opposes OCRE's motion for the reasons set out below.
I 8602260330 860224
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BACKGROUND During April and May,1985, hearings were held by-the Licensing
'I Board to address three issues admitteri for litigation.
On September 3,1985 the Licensing Board issued a Concluding Partial Initial i
Decision (CPID) finding for Applicants on the three issues litigated and authorizing issuance of an operating license.
The Intervenors, Sunflower Alliance and OCRE appealec' Ns and other Licensing Board decisions -
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and Applicants and Staff filed opposing briefs.
Subsequently, by Crder dated November 20, 1985 the Appeal Board scheduled oral argument for December 19, 1985.
Ilowever, due to the inability of the intervenors t
to appear, oral 'rgument was cancelled by Order dated December 10, 1985.
In a Memorandum and Order dated January 3, 1986, the Appeal Board indicated that a drcision could be made on the pending appeals without oral argument, but that two questions concerning the hydrogen control rule should be answered by the Applicants, Staff, and OCRE, in
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The issues concerned (1) hydrogen control, (2) TDI diesel genern-tors and (3) offsite emergency plans for PNPP.
The hydrogen con-trol end TDI diesel generator issues were sponsored by OCRE.
The emergency plan issue was sponsored by Sunflower Alliance.
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" Appellate Brief of Sunflower Alliance," October 29,1985; " Appellate Brief of Ohio Citizens for Responsible Energy," October 21, 1985.
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" Applicants' Brief in Opposition to Intervenors' Appeals from the Concluding Partial Initial Decision," December 2, 1985; "NRC Staff Response to Appeals Filed by Ohio Citizens for Responsible Energy and by Sunflower Alliance, Inc. of the Concluding Partial Initial De-cision on Issues #1, #8, and #16 and Six Prior Decisions,"
December 6,1985.
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supplemental written memoranda. A The Appeal Board's questions related to the assumptions of the accident scenarios accepted by NRC Staff for i
preliminary analyses and final analyses required by the hydrogen control rule, 10 CFR I 50.44(c)(3)(iv)-(vil), and the necessary elements of the Perry hydrogen control system in view of the assumptions in the preliminary analysis.
OCRE's recent motion objects to the affidavit attached to the Staff's response to the Appeal Board ouestions b on the ground that the affidavit " essentially constituted ' extra-record opinion testimony" favoring Staff's appellate position and augmenting the i
evidentiary record without opportunity for cross-examination.
Motion,
p.1 There is no basis for OCRE's motion since the Staff's affidavit was r
properly submitted.
Ill.
DISCUSSION OCRE asserts that the Appeal Board's Memorandum and Order posing questions to the parties was not an invitation for the parties to submit supplemental testimony but merely poses questions which would have been addressed by Staff Counsel at oral argument, if it had not been can-celled.
Motion, p. 1.
OCRE argues that the Staff's affidavit constitutes an attempt to augment the evidentiary record with " opinion testimony" favoring Stcff's appellate position without meeting the standards for
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Sunflower Alliance did not appeal the Licensing Board's decision on the hydrogen control issue and thus was not included in the Appeal Board's directive.
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"NRC Staff Response to Appeal Board Questions Concerning the Hy-drogen Control Rule," January 29, 1986.
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4-i reopening the record and depriving adversary parties of an opportunity for cross-examination.
Id.
Contrary to OCRE's characterization, the-
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Staff affidavit does not consist of "cpinion testimony" relevant to the evidentiary record or to Staff's appellate brief.
Rather the affidavit
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merely answers the ' Appeal Board questions concerning Staff's implementation of the hydrogen control rule provision concerning choice of 3
accident scenarios, as explained below.
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At the hearing concerning the hydrogen control issue, Applicants j
presented their preliminary analysis of the hydrogen control system in-stalled at PNPP during their case-in-chief.
Staff and Applicants' 1
witnesses testified concerning the sufficiency of this analysis to support.
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plant operation until the final analysis required.by regulation is provided.
The hydrogen control issue before the Licensing Board challenged the t
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adequacy of the hydrogen control system at PNPP to prevent breach of containment in case of a degraded core accident.
The ~ preliminary analysis was presented as evidence of the adequacy of the hydrogen control system and thus was the subject of the Licensing Board's findings i
of fact.
The final analysis has not been submitted by the Applicants, i
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was not before the Licensing Board, and was not directly a part of the l
pending appeal of the hydrogen control issue.
l Nevertheless, in order to - better understand the boundaries of the l
accident scenarios in the preliminary analysis, the Licensing Board i
allowed some limited questioning by. OCRE concerning the expanded accident scenarios considered acceptable to Staff for the final analysis to i
be submitted after completion of ongoing hydrogen control experimental i'
testing.
LDP-85-35, 22 NRC 514, at 548~.
The Appeal Board's questions l
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to the parties also concerned the parameters of the accident scenarios accepted by Staff for the preliminary and final analyses.
The Staff's concerns and considerations in regard to the accident scenarios deemed acceptable for the two analyses were not the subject of testimony at hearing, and thus are not on record below.
The Staff affidavit challenged by OCRE is limited to explanations of the accident scenarios acceptable to Staff to be addressed in analyses required by 10 CFR $ 50.44(c)(3)(vi)(B).
Since the rule provides that accident scenarios used for analyses of hydrogen control systems must be s' enarios acceptable to NRC Staff, those c
are particularly within the knowledge of the Staff and, as to the final analysis, are not included in the hearing record, except for brief references.
Thus, it was appro-priate for Staff to provide a direct explanation to the Appeal Bohrd con-cerning the accident scenarios to be used for final analyscs, especially sinec this information was not directly at issue in the hearing before the b
Licensing Board,
The scope of the accident scenarios or the preliminary and final analyses are the subject of the Staff's affidavit and 1
l nothing therein is intended to speak directly to the hydrogen control
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Contrary to OCRE's assertion that Staff Counsel would have been able to answer the Appeal Board's questions if asked at oral argument, it would have been necessary for Staff Counsel to question Staff before fully responding to the questions since details of the accident scenarios for the final analysis and bases for the Staff's views on what the final analysis should encompass were not presented at hearing and are not addressed in the appellate brief filed by NRC Staff.
.c.imilarly, in the absence of the affidavit attached to Staff's response to the Appeal Board's questions, Staff Counsel would have had to represent the Staff views and positions i
(now contained in the affidavit) in the body 'of the Staff response in order to properly respond to the Appeal Board's questions.
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contention litigated below or the correctness of the Licensing Board's decision on that contention which is the subject of OCRE's appeal.
The Appeal Board questions, in part, concerned requirements for the final analysis expecially within Staff's purview, and the Staff merely attempted to answer those questions directly.
The final analysis was neither submitted by Applicants nor litigated at hearing.
Thus, the Staff's cffidavit concerning accident scenarios acceptable to Staff for the final analysis cannot fairly be construed as new evidence directed at the hydrogen control issue that was litigated.
OCRE's characterization of the affidavit and its implication that the affidavit constitutes extra-record ter.timony on the litigated hydrogen control issue is incorrect.
The affidavit attached to Staff's response to the Appeal Board questions addresses the accident scenarios deemed acceptable to Staff for the preliminary and final analyses.
The affidavit merely provides the i
Sinff's views on what the Staff believes should be in the final analysis of,
the hydrogen control system, and why the Staff accepted a particular assumption in the preliminary analysis.
Cross examination of the affiant on these positions would accomplish little.
The Staff affidavit was neither an attempt to supplement the evidentiary record with factual testimony nor an attempt to p avide extra-record opinion testimony on m issue in controversy.
It was, rather, an attempt in good faith to answer Appeal Board questions raised for the first tir e in the appellate process.
In similar circumstances, the Appeal Board has accepted and relied upon Staff information and affidavits submitted in response to Appeal Board questions without a
formal reopening of the record.
See f.ietropolitan Edison Co.
(Three f.!Ile Island Nuclear Station,
Unit 1),
s.
ALAB-698,16 NRC 1290,1311 and n.58,1312-1314,1319 (1982), vacated in part on other grounds, CLI-83-7, 17 NRC 336, 337 (1983), rev'd in part on other grounds, CLI-83-22, 18 NRC 299 (1983).
The Staff affidavit was similarly properly submitted here and should not be stricken. U IV.
CONCLUSION For the reasons stated, OCRE's motion to strike the Staff's affidavit attached to Staff's January 29, 1986 response to the Appeal Board questions should be denied, but OCRE should be given the opportunity to comment on the Staff's affidavit.
Respectfully suomitted,
/
Colleen P. Woodheac' Counsel for NRC Staff Dated at Bethesda, Marylend this 24th day of February,1986
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It may, however, be appropriate to permit OCRE (and Applicants) to comment on the Staff's affidavit and response, in general.
See Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245, 249-50 (1978) (Appeal Board permits parties' comments on Staff responses to Appeal Board questions); Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 42 (1977)
(Appeal Board may base decision on grounds foreign to those relied -
upon by Licensing Board.so long as parties had sufficient opportunity to address new grounds with argument and, where appropriate, evidence).
The Staff, of course would not object to the Appeal Board's provision of an opportunity to comment.
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-00CMETED UNITED STATES OF' AMERICA NUCLEAR REGULATORY COMMISSION 116 FEB 25 A9:43 BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARAFlCE C4 L ;,,,
NMETING 4 Suy!O BRANC+f in the Matter of
)
)
CLEVELAND ELECTRIC
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Docket No.
50-440 OL ILLUMINATING COMPANY, ET AL. )
50-441 OL
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CEPTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO OCRE NOTION TO STRIKE NRC STAFF AFFIDAVIT" in the above captioned proceeding have been servc<* nn the following by deposit in the United States mail. first class, or, as indicated by an asterisk, by deposit in the Nuclent Regulatory Commission's internal mail system, this 24th day of February,1986:
- Dr. Jerry R. Kline
- James P. Gleason, Chairman Administrative Judge Adr intstrative Judge Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, MD 20901 Washington, DC 20555
- Mr. Glenn O. Bright Donald T. Ezzone, Esq.
Administrative Judge Assistant Prosecuting Attorney Atomic Safety and Licensing Board 195 Main Street U.S. Nuclear Regulatory Commission Lake County Administration Center Washington, DC 20555 Painesville, OH 44077 Jay Silberg, Esq.
Susan IIfatt Shaw, Pittman, Potts and Trowbridge 8275 Munson Road 1800 M Street, MU Mentor, OH 44060 Washington, DC 2003G
- Atomic Safety and Licensing Board Terry J. Lodge, Esq.
U.S. Nuclear Regulatory Commission.
618 N. Michigan Street, Suite 105 Washington, DC 20555 Toledo, OH 43624 John G. Cardinal, Esq.
Janine fligden, Esq.
Prosecuting Attorney Ohio Office'of Consumers Counsel Ashbabula County Courthouse 137 E. State Street Jefferson, OH 44047 Columbus, OII 43215 m
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- Atomic Safety and Licensing-Appeal Board U.S. ' Nuclear Regulatory Commission Washington, DC 20555
- Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission i
Washington, DC 20555
.l" Colleen P. Woodhead N
Counsel for NRC Staff f
.