ML20151P161

Answer Opposing Intervenor Ocre 851212 Motion to Reopen Record to Admit Six Late Filed Contentions Re Changes to Tech Specs Concerning Fire Protection & Operation W/One Recirculation Loop

ML20151P161
Person / Time
Site:	Perry
Issue date:	12/30/1985
From:	Silberg J SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20151P165	List: ML20151P161 ML20151P195
References
CON-#186-649 OL, NUDOCS 8601030318
Download: ML20151P161 (24)

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O ny vi December 30, 1985a_a UNITED STATES OF AMERICA '86 JN! -2 P 2 :08 NUCLEAR REGULATORY COMMISSION BeforetheAtomicSafetyandLicensingAppe515EBoabdhs.$ g BaMD In the Matter'of )

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THE CLEVELAND ELECTRIC Docket Nos. 50-440 50-441 6 f',

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ILLUMINATING COMPANY, ET AL. )

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(Perry Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' ANSWER TO OCRE MOTION TO REOPEN THE RECORD AND TO SUBMIT NEW CONTENTIONS I. INTRODUCTION By motion of December 12, 1985, Intervenor Ohio Citizens for Responsible Energy ("OCRE") asks the Appeal Board to reopen the record in this proceeding for the purpose of admitting six late-filed contentions. Motion To Reopen the Record and To Submit New Contentions (December 12, 1985) (" Motion"). OCRE's proposed Codtention A concerns changes to the draft Perry Nuclear Power Plant Unit 1 Technical Specifications relating to fire protection. Proposed Contentions B-1 through B-5 concern Applicants' request that operation of Perry with one recircula-tion loop be permitted up to 70% of rated thermal power.

Applicants oppose reopening of the record and admission of these late-filed contentions for the reasons set forth below.

8601030318Bjo ADOCK O 40 PDR PDR 9

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m II. ARGUMENT l

A. Standards for Reopening the Record To Admit Late-Filed Contentions As the Appeal Board has recently restated, a motion to re-open the record in an NRC adjudicatory proceeding

'must be timely and address a significant safety or environmental issue. It must also show that a different result might have been reached had the newly proffered material been considered initially.'

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 N.R.C. 5, 13 (1985) (quoting Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),

ALAB-786, 20 N.R.C. 1087, 1089 (1984)). "[B]are allegations or simple submission of new contentions is not sufficient."

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 N.R.C. 361, 363 (1981).

'At a minimum, . . . the new material in support of a motion to reopen must be set forth with a degree of particularity in ex-cess of the basis and specificity require-ments contained in 10 C.F.R. 2.714(b) for admissible contentions . . . . [I]t must be tantamount to evidence . . . [and] pos-sess the attributes set forth in 10 C.F.R. 21743(c) defining admissible evidence for adjudicatory proceedings. Specifically, the new evidence supporting the motion must be " relevant, material, and reliable."'

ALAB-812, supra, 22 N.R.C. at 14 (quoting Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 N.R.C. 1361, 1366-67, aff'd sub nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir.

L 1984), vacated in part and reh'g en banc granted on other grounds, 760 F.2d 1320 (1985)). See also ALAB-755 at 1367

n. 18.1/

A motion to reopen that seeks to introduce a new conten-tion - such as OCRE's motion here - must also satisfy the Com-mission's standards for admitting late-filed contentions.

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-39, 16 N.R.C. 1712, 1714-15 (1982); ALAB-812, supra, 22 N.R.C. at 14. The burden of satio-fying all these requirements is heavy indeed. ALAB-812, supra, 22 N.R.C. at 14-; see Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N.R.C. 320, 338 (1978); see also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-07, 21 N.R.C. 1104, 1106 (1985). For the reasons stated below, OCRE fails to carry this burden B. OCRE's Contention A OCRE's proposed Contention A states:

Contrary to 10 CFR 50.36(c)(2), the Perry Unit 1 Technical Specifications do not con-tain limiting conditions for operation for fire protection equipment.

Motion at 1-2. OCRE fails to make the required showing for reopening the record and admitting this late-filed contention.

1/ See also Proposed Rule: Criteria for Reopening [ Records]

in Formal Licensing Proceedings, 49 Fed. Reg. 50189 (1984)

(proposing to codify the case law standard and to require sub-mission of supporting affidavits).

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1. OCRE's Motion Fails To Carry Its Burden for Reopening the Record

a. The Motion To Reopen Is Untimely.

OCRE claims that its motion is timely because it was filed i

within seven days of OCRE's receipt of notice that the NRC Staff (" Staff") had approved the deletion of fire protection elements (including limiting conditions for operation) from the

! draft Perry Technical Specifications. Motion at 7. OCRE states that it did not file earlier because "it hoped that its letter (Attachment 2) might dissuade the Staff." Id. OCRE's letter to the Staff is dated November 22, 1985; thus, OCRE knew of the proposed changes prior to that date. Since information was previously available to provide the basis for an earlier

! filing of the contention, OCRE should not have sat back and waited for the Staff to document its final approval of the changes. See Duke Power Co. (Catawba Nuclear Jtation, Units 1 and 2), CLI-83-19, 17 N.R.C. 1041, 1048 (1983). Although OCRE's delay in filing the contention might not be considered untimely at an earlier stage of the proceeding, it is not jus-tified at this late stage. See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 526 (1973) (motion to reopen denied based on delay of one month).

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b. OCRE's Contention A Does Not Address a Significant Safety Issue. [

Even if OCRE's proposed Contention A were timely filed, OCRE's motion utterly fails to show that the contention raises a significant safety issue. OCRE claims that the contention

" raises the issue of regulatory compliance, which is always a significant matter . . . ." Motion at 7. Yet OCRE does not.

show how this generality bears any relationship to the facts at hand. Although OCRE points to the deletion of fire protection program elements from the Perry Technical Specifications (while ignoring their incorporation in-- and control through--the FSAR, as noted in Attachment 3 to OCRE's Motion), OCRE identifies no significant safety issue arising from this change.

OCRE cites 10 C.F.R. S 50.36(c)(2), which requires that technical specifications include limiting conditions for opera-tion, defined as "the lowest functional capability or perfor-mance levels of equipment required for safe operation of the facility." The thrust of OCRE's argument is that "[s]ince fire protection systems are undeniably necessary for the safe opera-t tion of the facility," limiting conditions for operation of these systems "must be included in the Tech. Specs." Motion at 2.

OCRE's interpretation of the regulatory requirements for technical specifications is incorrect. As the Appeal Board has said:

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.[T]here is neither a statutory nor a reg-ulatory requirement that every operational detail set forth in an applicant's safety analysis report (or equivalent) be subject to a technical specification, to be includ-ed in the license as an absolute condition of operation which is legally binding upon the licensee unless and until changed with specific Commission approval. Rather, as best we can discern it, the contemplation of both the (Atomic Energy] Act and the regulations is that technical specifica-tions are to be reserved for those matters as to which the imposition of rigid condi-tions or limitations upon reactor operation is deemed necessary to obviate the possi-bility of an abnormal situation or event giving rise to an immediate threat to the public health and safety.

Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531,

, 9 N.R.C. 263, 273 (1979) (footnote omitted). The Commission's stated intention in adopting the present form of Section 50.36 was to eliminate unnecessary detail and "[ focus) attention on items more directly related to public safety . . . ." 33 Fed.

Reg. 18610 & n.1 (1968). The Commission specified that "those items that are directly related to maintaining the integrity of the physical barriers designed to contain radioactivity . . . .

are expected to be the subjects of technical specifications in the operatiqq license." Id. at 18610 (emphasis added).

The limiting conditions for operation relating to fire protection deleted from the Perry Technical Specifications "are not of the gravity and immediacy alluded to in Trojan that calls for translation from commitments to technical specifica-tions." Cf. Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 N.R.C. 419, 423 (1980). The fire

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.I protection system is not directly related to maintaining the integrity of the physical barriers designed to contain ra-dioactivity. See 33 Fed. Reg. at 18610. Rather, it is a sec-ondary, support system which protects the process systems asso-ciated with operation of the reactor.2/ Fire protection has the same indirect relationship to safe plant operation that securi-ty protection and emergency plans have. Security protection and emergency planning are appropriately included in Technical

, -Specification Administrative Controls and not in limiting con-ditions-for operation. This is precisely how fire protection would be treated. x

, In any event, the Staff's objective of simplifying the Perry Technical Specifications by deleting certain fire protec-

" tion elements (see Motion, Attachment 1)3/ will not affect the level of protection provided by Applicants' fire protection

, program. The limiting conditions for operation for fire pro-tection deleted from the revised draft Technical Specifications 2/ OCRE argues that General Design Criterion 3 of 10.C.F.R.,

Part 50, " clearly establishes" that fire protection systems are "important to safety." Motion at 2. GDC 3 actually states that fire protection systems "shall be provided and designed to minimize the adverse effects of fires on structures,' systems, and components important to safety" (emphasis added).

3/ Applicants note the Commission's generic efforts to sim-plify technical specifications based on its concern that in re-cent years "the increased volume of technical specifications lessens the likelihood that licensees will focus.. attention on matters of more immediate importance to safe operation of the facility." Proposed Rule: Technical Specifications for Nuclear Power Reactors, 47 Fed. Reg. 13369, 13370 (1982).

are' required by the Technical Specifications to be incorporated into plant operating procedutas. See Attachment 1 hereto, at p. 6-16. In addition to the requirement for fire protection procedures, other administrative controls over the fire protec-tion program are retained in the Technical Specifications. See id. at p. 6-9, 6-13. Finally, the Perry operating license will be conditioned to require prior NRC approval for any change in the fire protection program which adversely affects the ability to achieve and maintain safe shutdown in the event of a fire.

In short, Applicants are obliged to comply with their internal fire protection program and procedures whether or not fire pro-tection program elements are included in limiting conditions for operation. There is no need to retain these commitments as

limiting conditions for operation. See Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2),

ALAB-578, 11 N.R.C. 189, 216-18 (1980); ALAB-616, supra, 12 N.R.C. at 423-24.

c. OCRE Fails To Show That Contention A Could Change the Result of the Proceeding I

OCRE argues that it meets this standard for reopening the record because compliance with the regulations is."one of the findings prerequisite to issuance of a license." Motion at 7 (citing 10 C.F.R. S 50.57(a)(2)). OCRE simply assumes that the changes to the draft Technical Specifications constitute a noncompliance. As discussed supra, OCRE fails to produce any

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evidence that the changes are improper or, even if improper, would have any adverse consequences on the public health or safety. Thus, OCRE does not show that the contention could provide a basis for altering the results of the proceeding, i.e., reversing the Licensing Board's authorization of issuance of an operating license for Perry Unit 1.

2. The Five Factors Test Does Not Favor Admission of Contention A As discussed supra, OCRE must also show that a balancing of the following five factors favors admission of its late-filed contentions:

(1) Good cause, if any, for failure to file on time.

(ii) The availability of otheer means whereby the pe-titioner's interest will be protected.

(iii) The extent to which the petitioner's participa-tion may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's participa-tion will broaden the issues or delay the proceeding.

10 C.F.R. $ 2.714(a)(1).

I The balancing of these five factors as applied to OCRE's Contention A weights heavily against its admission. First, as discussed supra, the contention is not based on information which should be considered new in light of the advanced stage of the proceeding. OCRE lacks good cause for failure to file on time.

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k Second, OCRE fails to demonstrate its ability to contrib-ute to the development of a sound record. The Appeal Board has repeatedly observed that "[w] hen a petitioner addresses this criterion it should set out with as much particularity as pos-sible the precise issues it plans to cover, identify its pro-spective witnesses, and summarize their proposed testimony."

Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 N.R.C. 1725, 1730 (1982). See also Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C. 1167, 1177 (1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-743, 18 N.R.C. 387, 399 (1983). OCRE has ignored this ob-servation.

Rather, OCRE claims that its ability to contribute is dem-onstrated by "the record of the operating license proceeding."

Even if it were true that OCRE has contributed on other conten-tions, this does not mean that it can be expected to make a similar contribution with respect to the contention at hand.

See LBP-82-11, 14 N.R.C. 348, 352 (no basis shown for OCRE spe-cial competdnce on core catcher contention). At any rate, the extent to which an intervenor's participation may reasonably be expected to assist in developing a sound record "is only mean-ingful when the proposed participation is on a signifjeant, triable issue." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 N.R.C. 1132, 1143 (1983).

Such is not the case here.

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Third, admission of the contention clearly would broaden

, the issues and delay the proceeding. The record is closed,4/

no other issues are being litigated, and fire protection was not the subject of a previous contention.5/

Even if factors (ii) and (iv) might weigh in favor of ad-mission,6/ those factors are heavily outweighed by the lack of good cause for OCRE's late filing, OCRE's inadequate showing on factor (iii) and the delay to the proceeding which would re-sult if the contention were admitted.7/ Thus, the balance l weighs strongly against the admission of OCRE's late-filed contention.

4/ The evidentiary record in this proceeding has been closed since May 3, 1945.

5/ OCRE's argument that admission of the contention "will cause very little d( ay, as OCRE intends to move for summary disposition in it. tuvor soon after the issue is admitted" (Mo-tion at 9), is dit ngenuous, since OCRE cannot possibly know how long it might take the Appeal Board and/or Licensing Board to act on the present Motion and OCRE's postulated summary dis-position moti'n.

6f f. utna (11) and (iv) are the least important of the five criteria. South Carolina Electric & Gas Co. (Virgil C. Summer

Nuclear Station, Unit 1), ALAB-642, 13 N.R.C. 881, 895 (1981).

I 7/ A. 'me Appeal Board stated in ALAB-642, supra:

[I]t is most difficult to envisage a situa-tior, in which [ factors (ii) and (iv)] might cerve to justify granting intervention . . . to one who (1) is inexcusably late; (2) seeks to expand mate-rial'y the scope of the proceeding; and (3) offe,s, at best, a marginal showing with respect to its ability to make a truly sig-nificant, substantive contribution.

13 N.R.C. at 895.

C. OCRE's Contentions B-1 through B-5 OCRE's proposed Contentions B-1 through B-5 deal with var-ious aspects of Applicants' proposal to allow extended opera-4 tion of Perry with a single loop of the recirculation s, stem

(" single loop operation" or " SLO") at power levels up to seventy percent. The five specific issues are:

Contention B-1 Applicants should analyze the progression and consequence of an anticipated transient without scram ("ATWS") initiated by the inadvertant startup of the idle recircula-tion loop when operating at 70% of rated thermal power with single loop operation. The analysis should demonstrate that this event will meet the safety criteria outlined in Section 15C.3 of the FSAR.

Contention B-2 Applicants have not demonstrated that the seizure of the operating recirculation pump when operating up to 70% of rated thermal power with a single loop will not exceed fuel safety limits, assuming scram functions, and that ATWS initiated by this event will meet the safety criteria of FSAR Section 15C.3.

Contention B-3 Applicants have not demonstrated that the traversing incore probe ("TIP") noise uncertainty values reported in FSAR Section 15.F.2.2 are applicable to single loop operation up to 70% of rated thermal power; consequently, the minimum critical power ratio ("MCPR") may not be determined in a conservative fashion.

I Contention B-4 Applicants' Technical Specifica-tions for single loop operation up to 70% of rated thermal power should include limits on the core plate pressure drop.

Contention B-5 Applicants have not demonstrated that single loop operation up to 70% of rated thermal power will not aggravate the strong variability in flow rate along the fuel channel seen in fast BWR transients, or that this phe-nomenon has been conservatively accounted for in analyses of fast transients.

Motion at 2-6. As with Contention A, OCRE fails to make the requisite showings for reopening the record and admitting these late-filed contentions.

1. OCRE's Motion Fails to Carry Its Burden for Reopening the Record

a. The Motion to Reopen is Untimely OCRE claims that its Motion was timely with respect to Contentions B-1 to B-5 since it received the FSAR amendment on which the contentions were based on November 27, 1985 and filed its motion some two weeks later. Had this been the entire story, Applican.ts would agree with OCRE that the motion was timely.

However, OCRE fails to point out that the same information which it received on November 27, 1985 in the form of an FSAR amendment had been transmitted to.NRC by Applicants (and was therefore available to OCRE) a month earlier.g/ OCRE has not explained why its timeliness should not be measured from the availability of this earlier and identical information. As noted above, even a one month delay has been sufficient to deny a motion toireopen. Vermont Yankee, ALAB-138, supra.

g/ Letter from M. R. Edelman, Cleveland Electric Illuminating i Company, to B. J. Youngblood, NRC, dated October 28, 1985. See Affidavit of Kevin W. Holtzclaw attached hereto ("Holtzclaw Af-fidavit"), at 13. OCRE is obligated to " diligently uncover and apply all publicly available information to the prompt formula-tion of contentions." Catawba, CLI-83-19, supra at 1048.

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Even more glaring is OCRE's failure to acknowledge that single loop operation at power levels up to 70% has been a part of the Perry Technical Specification since mid-1984. Holtzclaw Affidavit, at 14. OCRE makes no attempt to explain why it did not raise these issues a year and half ago. Although the cur-rent Technical Specifications do not allow extended SLO at 70%

power, nothing in OCRE's contentions distinguishes between ex-tended and short-term SLO at this power level.9/ Thus, OCRE's timeliness obligation must be triggered by the availability in mid-1984 of this Perry-specific information on single loop operation. Judged by this standard, OCRE's motion is clearly untimely.

b. OCRE's Contentions B-1 through B-5 Fail to Address a Significant Safety Issue Apart from being untimely, OCRE's SLO contentions fail to raise a significant safety issue. OCRE provides no separate analysis of this key requirement, but merely states that the contentions "also raise significant questions on the safety of operating the Perry facility up to 70% power on a single recir-culation loop." Motion at 7. Applicants are left to guess at what the "significant questions" are. Even if OCRE meant to 9/ Indeed, many of OCRE's arguments have nc relationship to the particular power level specified in the ESAR amendment.

For example,.OCRE's claims in Contention B-2 on steam binding and recirculation pump seizure apply to SLO at any power level.

OCRE cannot use the fortuitous timing of the FSAR amendment to raise issues which could as easily have been raised at any other time.

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I incorporate by reference its explanation of each of the five contentions, it.has not met the test.

Contention B-1 claims that Applicants should analyze an anticipated transient without scram ("ATWS") initiated by inad-vertent startup of the idle recirculation loop when the plant is in single loop operation at 70% power. OCRE can only say that "it is not clear what the consequences would be," that "it appears that General' Electric ('GE') has never analyzed this event," and that "it is not clear" whether this event is milder than another ATWS event which OCRE admits that GE did analyze.

' Motion at 3. This kind of uncertain speculation on OCRE's part hardly qualifies as a significant safety issue. In contrast to OCRE's insubstantial showing, the Holtzclaw Affidavit sets forth in detail why Contention B-1 fails to raise a significant safety issue. As set forth in the Affidavit, ATWS considera-tions are irrelevant for the idle recirculation loop startup event at power levels up to 54%, Holtzclaw Affidavit 19.

Although ATWS evaluations are relevant for this transient above 54% power, other ATWS events already analyzed are more severe than an ATWq event initiated by inadvertent startup of an idle recirculation loop. Id., 1110-12. ATWS evaluations already performed bound the event raised by OCRE. Therefore, addition-al ATWS evaluations need not be performed. Id. 1113-15. For these reasons,. Contention B-1 fails to raise a significant safety issue.

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Contention B-2 claims that Applicants have not evaluated a i recirculation pump seizure accident in single loop operation, either with scram or in an ATWS event. In the "with scram" situation, OCRE's argument is based on the assertion that

" steam binding" would occur. Not only does OCRE provide no cupport that steam binding is particularly relevant to single loop operation, it relies wholly on a document which has no reference to SLO. Id. at 118. As to the ATWS part of the con-tention, ATWS is irrelevant to the postulated accidend since no scram is required, id. at 119, the postulated neutron flux oscillations are suppressed by manual control rod insertion, not by the scram function, id. at 20, and GE analysis reviewed and accepted by the Staff subsequent to the Board Notification on which OCRE relies, demonstrates that the oscillations do not cause fuel design limits to be exceeded. Id. at 121. Finally, it should be noted that OCRE's postulation of an ATWS in addi-tion to a recirculation pump seizure accident is the kind of multiple accident which goes far beyond the single failure cri-terion of App. A to 10 C.F.R. Part 50. Contention B-2 there-fore fails to cet forth a significant safety issue.

Contention B-3 claims that Applicants have not demon-strated that traversing incore probe ("TIP") noise uncertainty values are applicable to SLO at 70% Power. However, OCRE's only support for this claim is that the test used to determine these values was performed at 59% power rather than at 70%.

OCRE provides nothing to indicate that the uncertainty values

would be greater at 70% power. Here, too, OCRE is asking for confirmatory testing, rather than raising a significant safety I issue. In any case, the Holtzclaw Affidavit explains why there would be no significant difference between TIP noise uncer-tainties at 59% power in SLO and at 70%. Id. at 125. There-fore, this contention fails to raise a significant safety issue.

Contention B-4 claims that the Technical Specifications for SLO should include a limit on core plate pressure drop to permit "better regulation of core flow," "less variable within-core coolant flow," and "more even cross-core power."

Motion at 5. OCRE fails to explain why such a limit would ac-complish any of these purposes and more importantly says noth-ing about the safety significance of such a limit. The mere fact that another power plant (Cooper) has such a limit is of little importance,'particularly where Cooper and Perry are dif-ferent plant designs. Finally, the Holtzclaw Affidavit estab-lishes that core plate pressure drop limits are not needed for

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core flow considerations since more direct measures (core power and flow) will be available. Id. at 128. As with the other contentions, Contention B-4 fails to present a significant safety issue.

Finally, Contention B-5 claims that Applicants have not demonstrated that SLO at 70% power will not aggravate flow rate variability in fast BWR transients. OCRE can only state that

"[i]t is not clear" that single loop operation "will not aggravate this effect." Motion at 6. As in prior contentions, OCRE relies on its lack of knowledge whether the phenomenon will have any effect. This speculation is not adequate to raise a significant safety issue. The Holtzclaw Affidavit affirmatively demonstrates that flow variability during fast transients is already amply considered by GE's analyses. Ig.

at 1133-38. This contention does not raise a significant safe-ty issue.

It is therefore clear the OCRE has failed to meet the sec-ond of the three reopening tests.

c. OCRE Fails to Show that Contentions B-1 through B-5 Could Change the Result of the Proceeding OCRE's sole support for meeting this standard is the statement that "[h}ad the Licensing Board been aware of Appli-cants' plans in this regard, it is very likely that a different result would have been reached." Motion at 7. As discussed supra, OCRE has failed to show that its contentions raise sig-nificant safety issues. Therefore, it is difficult for Appli-ca.nts to conceive that this newly proffered material if consid-I ered initially might have lead to a different result.

2. The Five Factors Test Does not Favor Admission of Contentions B-1 through B-5 A balancing of the five factors to be evaluated in deciding whether to admit late filed contentions also yields the conclusion that Contentions B-1 through B-5 should be excluded.

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The first factor, good cause for OCRE's untimely filing, has been discussed in SII.c.1.a supra. While OCRE states that it "would not have been possible or practical to file any ear-lier," single loop operation has been a part of Perry Technical Specifications since mid-1984 and the information on which OCRE based its contentions was available some six weeks before OCRE decided to file its contentions.

With respect to OCRE's ability to assist in developing a sound record, the discussion in $II.B.2 supra in connection with Contention A applies equally here. OCRE has failed to show-how it would contribute to the development of a sound record on these cort ntions.

With respect to the fifth factor, broadening the issues and delaying the proceeding, OCRE concedes that admission of the contentions "may result in some delay," Motion at 9. Since the proceeding is in its final phase, it is virtually certain that admitting five new contentions would delay its completion.

OCRE does not challenge the obvious fact that admitting the contentions would broaden the issues.

Even iq the remaining factors (other means to protect OCRE's interest and representation of OCRE's interest by other parties) might weigh in OCRE's favor, these factors are the least important, Summer, ALAB-642, supra at 895, and are heavi-ly' outweighed by the first, third and fifth factors.

III. CONCLUSION For all of the above reasons, OCRE's motion to reopen the record for the purpose of admitting its late-filed Contentions A and B-1 through B-5 should be denied.

Re ctfully submitted, 7

b% c) HLr e /

J ilberg, P.C.

()'"

Hry . Glasspiegel SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: December 30, 1985

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UNITED STATES a NUCLEAR REGULATORY COMMISSION ATTACHMENT 1 Lt 2f WAsMiNoToN. D. C. 20sss

%,*....,l NOV 2 91985 Decket Nos. 50-440/441 Mr. Murray E. Edelman Vice President - Nuclear Group The Cleveland Electric Illuminating Company P.O. Box 5000 Cleveland, Ohio 44101

SUBJECT:

FIRE PROTECTION PROGRAM FSAR/ TECHNICAL SPECIFICATION CHANGES FOR THE PERRY NUCLEAR POWER PLANT .

In ycur letter of November 15, 1985, you proposed to delete the fire protection program elements from the Perry Unit 1 Technical Specifications, and in lieu thereof, to document.those elements in the FSAR. The staff finds this change, wherein you describe and centrol the fire protection program through the FSAR,*

to be acceptable, provided you retain the administrative controls related to the program as reflected in the enclosed markup pages of the November 12, 1985 final draft of the Technical Specifications. CEI is requested to certify the Perry, Unit 1 Technical Specifications implementing the changes reflected in the enclosure.

Should there be any questions or need to discuss this matter further with the staff, please let me know.

Sircerely,

, '^ .- >I

,1 ' : c ,<Yr

!. , . .> i. ?u Ylw Walter R. Butler, Director

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BWR Project Directorate No. 4 Division of B'nR Licensing

Enclosure:

As stated cc: See next page 4

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I L 4 0M7 ADMINISTRATIVE CONTROLS RESPONSIBILITIES 6.5.1.6 The PORC shall be responsible for: .

l i a. Review of all Adelnistrative Procedures;

b. Review of the safety evaluations for (1) proposed procedures /

instructions (2) changes to procedures / instructions, equipment, systems or facilities, and (3) tests or experiments performed under the provisions of 10 CFR 50.59 to verify that such actions do not constitute an unreviewed safety question; .

! c. Review of proposed procedures / instructions and changes to procedures /

! instructions, equipment, systems or facilities which involve an unreviewed safety question as defined in 10 CFR 50.59; l

d. Review of proposed tests or experiments which involve an unreviewed safety question as defined in 10 CFR 50.59;

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e. Review of proposed changes to Technical Specifications or the l Operating License; l'. Investigation of all violations of the Technical Specifications including the preparation and forwarding of reports covering evalua ,

tion and recommendations to prevent recurrence to the Vice President -

i i Nuclear Group and to the Nuclear Safety Review Committee;

g. Review of all REPORTA8LE EVENT 5;

$ h. Review of the plant Security Plan and Security contingency Instruc-tions and submittal of recommended changes to the Nuclear Safety Review Committee;

i. Review of the Emergency Plan and implementing instructions and sub-aittal of recomended changes to the Nuclear Safety Review Committee; l

j. Review of changes to the PROCESS CONTROL PROGRAM, the 0FFSITE DOSE CALCULATION MANUAL, and Radwaste Treatment Systems;

' ~

"k. Review of any accidental, unplanned or uncontrolled radioactive release including the preparation of reports covering evaluation, recomapdations, and disposition of the corrective action to prevent recurrence and the forwarding of these reports to the Managers, Perry

'- Plant Departments, the Nuclear Safety Review Comittee and the Vice President - Nuclear Group;

1. Review of Unit operations to detect potential hazards to nuclear safety; andr

s. Investigations or analysis of special subjects as requested by the Chairman of the Nuclear Safety Review Comittee4 4

~

}  % La Q th. en iwb ": inm ad QJ tw O Mk e 6 c:r~ A .,

n ~M Q % L RL

( (

I PERRY - UNIT 1 6-9 '

N0Y 1 2 585

I Flp.w gr l ADMINISTRATIVE CONTR0!.5 AUDITS (Continued)

p. The performance of activities required by the operational Quality Assurance Program to meet the criteria of Appendix 8,10 CFR Part

50. at least once per 24 months;

~-

! e. The fire protection programmatic controls including the implementing 3

procedures at least once per 24 months by quclified licensee QA

personnel;

f. The fire protection equipment and program implementation at least d once per 12 months utilizing either a qualified corporate licensee fire protection engineer (s) or an outside independent fire protection consultant. An outside independent fira protection consultant shall i

be utilized at least every third year; 3 The radiological environmental monitoring program and the'results thereof at least once per 12 months;

h. The 0FFSITE DOSE CALCULATION MANUAL and implementing procedures at least once per 24 months

• l '. The PROCESS CONTROL PROGRAM and implementinir procedures at least once per 24 months; -

7." -

j. The performance of activities required by the Quality Assurance

, Program for effluent and environmental monitoring at least once per

• 1 12 months; and l

... Any other area of unit operation considered appropriate by the NSRC l or the Vice President - Nuclear Group.

RECORDSk 6.5.2.9 Records of NSRC activities shall be prepared, approved, and

distributed as indicated below

,, , , 4.

. Minutes of each NSRC meeting shall be prepared, approved, and

-forwarded to the Vice President - Nuclear Group within 14 days following each meeting.

b. Reports of reviews encompassed by Specification 6.5.2.7 shall be prepared, approved, and forwarded to the Vice President - Nuclear Group within 14 days following completion of the review.

c. Audit reports encompassed by Specification 6.5.2.8 shall be forwarded to the Vice President - Nuclear Group and to the management positions rdsponsible for the areas audited within 30 days after completion of

the audit by the auditing organization.

i 4

PERAY - UNIT 1 6-13 MOV lIW l

I n 1g ADMINISTRATIVE CONTROLS -

6.8 PROCEDURES / INSTRUCTIONS AND PROGRAMS 6.8.1 Written procedures / instructions shall be established, implemented, and maintained covering the activities referenced below:

. 1

, s. The applicable precedures recommended in Appendix A of Regulatory i Guide.1.33, Revision 2 February 1978.

b. The applicable procedures required to implement the requirements of NUREG-0737 and supplements thereto.

c. Security Plan implementation.

d. Emergency Plan implementation.

e. PROCESS CONTROL PROGRAM implementation.

f. OFFSITE DOSE CALCULATION MANUAL implementation.

g. Que ";j A;;w...;:

Pr:gr= fer effh=t W) environmental monitoring.

y

%. fsu 9%walA flagsM 6.8.2 cacn aaministrar.ive y,us.Jur ad'AW vi specification 6.8.1, and changes thereto, shall be reviewed by the PORC and shall be approved by the Managers, Perry Plant Departments, prior to implementation. All procedures / instructions shall be reviewed periodically as set forth in administrative procedures. e 6.8.3 The following programs shall be established', implemented, and maintained:

, , s. Primary Coolant Sources outside Containment A program to reduce leakage from those portions of systems outside containment that could contain highly radioactive fluids during a serious transient or accident to as low as practical levels. The systems include the HPCS, CS, RHR, RCIC, LPCS, feedwater leakage control system, and post-accident sampling systems. The program shall include the following:

l "1. Preventive maintenance and periodic visual inspection j requirements, and t

l *~

2. Integrated leak test requirements for each system at refueling '

cycle intervals or less.

l

! b. In-Plant Radiation Monitorina A program which will ensure the capability to accurately determine the airborne todine concentration in vital areas under accident conditions. This program shall include the following:

1. Training of personnel,

. 2. Procedures for monitoring, and

3. Provisions for maintenance of sampling and analysis equipment.

1

NOV 121985

! PERRY - UNIT 1 6-16

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