ML20206M995

Decision.* Affirms Board 880808 Memorandum & Order LBP-88-20 Determining That RG-58 Cable Issue Need Not Be Resolved Prior to Authorization of Low Power Operation of Facility. Served on 881129

ML20206M995
Person / Time
Site:	Seabrook
Issue date:	11/29/1988
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
CON-#488-7578 ALAB-904, LBP-88-20, OL-1, NUDOCS 8812020127
Download: ML20206M995 (10)

Text

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l UNITED STATES OF AMERICA

• W M" NUCLEAR REGULATORY COMMISSION l' LC M ,I h

I ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: j Alan S. Rosenthal, Chairman November 29, 1988 Howard A. Wilber (ALAB-904) f

) SERVED NOV 291988 In the Matter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al. ) 50-444-OL-1

)

(Seabrook Station, Units 1 ) (Onsite Emergency Planning and 2) ) and Safety Issues)

)

Diane Curran, Washington, D.C., for the intervenor New England Coalition on Nuclear Pollution.

Thomas G. Dignan, Jr., and Deborah S. Steenland, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.

gregory Alan Berry for the Nuclear Regulatory Dommission statt.

6 DECISION On temand from us, the Licensing Board has befcre it i

i the issue of the environmental qualification of RG58 coaxial i cable used in the Seabrook nuclear power facility.1 On i June 29, 1988, the. Commission en':ered an unpublished order i

i i

1 See ALAB-891, 27 NRC 341 (1988). The basis of the

! remand was that the Licensing Board's treatment of the issue

! in LDP-87-10, 25 NRC 177 (1987), and certain subsequent j memoranda did not appropriately dispose of the matter. In l

this connection, we observed that neither the Licensing

Doard nor any party had brought to 11.ght any ovidence of

, record that might edequately support that Board's finding

. that the environmental qualification of the RG58 cable has

! boon established. ALAB-891, 27 NRC at 351.

}

g 1

. T 2

in which it directed that Board to determine whether the issue needed to be resolved before operation at levels not to exceed five percent of rated power (i.e., low-power operation) was authorized. Following the receipt of the parties' submissions on that question, the Board issued a memorandum and order on August 0 in which it concluded that "the remanded coaxial cable issue is not relevant to .

low-power cperations inasmuch as the safety concerns raised .

thercin would not adversely impact upon the public health and safety if the Seabrook facility were to be authorized to  ;

I operate only up to 5% of rated power."

2 LBP-88-20, 28 NRC 161, 168-69 (1988). The Board went l on to note that it was not then in a position to renew an earlier authorization of 2cw-power operation because of the pendency of another ice.ue -- specifically, whether the provisions in the applicants' emergency response plan for providing public notification of a nuclear emergency to j those within. the Massachusetts portion of the Seabroon plume  !

exposure pathway emergency planning zone are adequate. Id. t i at 169. Since the rendition of LBP-88-20, however, the i j Commission has J clared that the public notification matter  ;

i is no longer a bar to low-power operation in light of a  ;

recently promulgated amendment to 10 CFR 50.47 (d) . See

! CLI-88-8, 28 NRC (October 7, 1988); 53 Fed. Reg. 36,955 -

1 (1988).

i In addition, the Licensing Board took note in LEP-88-20 of the fact that the NRC staff had not as yet reviewed or  ;

evaluated the applicants' position that the RG58 cable issue

, is not relevant to lcw-power operation. Accordingly, the Board stated that, if so requested by the Commission, the j staff should provide such an evaluation to the Commission  ;

before a icw-pcwer license is issued. LDP-88-20, 28 NRC at  ;

169. To our knowledge, no such request has been >

> forthcoming.

< (Footnote Continued) ,

\

I

3 c

The sponsor of the RG58 cable istse, intervenor New England Coalition on Nuclear Pollution (Coalition), has appealed that determination. The appeal'is opposed bf both

' the applicants and the NRC staff. We affirm.

A. The Coalition's~ principal claim is that "[t]he Commission lacks authority, under either the Atomic Energy l i Act or NRC regulations, to permit operation of the Seabrook l

nuclear power plant at low power levels before completing l

[ litigation of contested safety issues."3 For this reason alone, we are told, completion of the remand on the RG58 l

cable issus mubt procede the issuance of a low-power license

[

for Seabrook.4 f n

i i This line of argtwant need not detain us long. For, as the Licensing Board correctif observed (but the Coalition f fails to acknov3 edge in its appellate papers), we provided

~

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our answer to it just last May. In response to essentially }

1 i

t 1 (Footnote Continued) l l

Finally, as the Commission also observed in CLI-88-8,

28 NRC at n.1, in any event low-power operation must t i await the disposition of a pending financial qualification [

j question.

New England Coalition on Nuclear Pollution's Brief in l

Support of Appeal of Licensing Board's Memorandum and Order l Dated August 8, 1988 (September 23, 1988) [hereafter  :

1 "Coalition's Appellate Brief") at 6. l t

4 f 7'id.

Sco LDP-88-20, 28 NRC at 166-67. ,

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i the same assertions that the Coalition presents here, we -

determined both (1) that 10 CFR 50.57(c) affirmatively '

authorizes the issuance of a low-oower license so long as no ,

i n.atters germane to such opernt' D remain unresolved; and (2) ,

that it is for the Commission and not us to entertain any l

l challenge to that section based upon the provisions of the  ;

Atomic Energy Act of 1954, as an. ended.6 [

The Coalition assigns no reason why those i 1 .

determinations should now be reexamined by us and we can ,

i i i think'of none. In the circumstances, it is a fair inference  !

i 1

! thst the Coalition desires simply to preserve for [

examination by higher authority its claim that, as a matter  :

of both statute and regulation, an authorization of 5

1cw-power operation f.s not permissibic unless and until all [

safety contentions hav, been resolved.7 Needless to say, it l i could have accomplished that objective by the mere notation  !

that it was in disagreement with our prior disposition of i

the claim. Ther was no need for it to brief anew its t l l position on the question.

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i i

! i 6

See ALAB-892, 27 NRC 485, 489-93 (1988). The i Coalition made particular reference to the hearing rights  ;

l said to be guarantced to it by section 189a. of the Act, 42 [

l U.S.C. 2239(a).

7 k On June 13, 1988 the Coalition filed a petition for Commission review of ALAB-892. That petition is still  !

pending.

1 i

. i l I

5 B. In its brief to the Licensing Board on the question  ;

whether the RG58 cable issue stood as an obstacle to ,

low-powcr operation, the Coalition confined itself to the claim that, as a matter of law, the resolution of all l contested safety iscues is a condition precedent to such

operation.8 on its appeal, however, the Coalition endeavors to advance an entirely new claim. It now asserts that the )

failure of the RG58 cables during low-power operation might result in the presentation of misleading information to the  ;

plant operators.9 Ic this connection, the Coalition does .

j not appear to dispute the applicants' assertion that the  !

a

computer instrumentation and level detectors to which the cables are connected have no assigned role in the t i

4 achievement of a safe shutdown in the event of an accident  :

during low-power operation.10 Nonetheless, the Coalition hypothasizes, because they arc in the "habit" of relying on [

t

! those components for information about plant status during l 1

1  ;

) l i i I

b . .c . __ _ __ \

8 j See New England Coalition on Nuclear Pollution's i 1 Brief in Opposition to Authorization of Low Power Operation [

l at Soabrook Nuclear Power Plant (July 21, 1988). .

9 See Coalition's Appellate Brief at 9.

10 The assertion was advanced at p. 4 of the  !

Ibid.

) Applicans.' ficmorandum in Support of Permitting Low Power  !

t Operation Prior to Resolution of "Coaxial Cable" Issue (July [

{ 22, 1988) [hcreafter "Applicants' July 22 Memorandum").

i i

? l

F-9 I

s n< rmal operation, the oper:Jtors "would be incl.ned to refer }

to them during the course of an accident."11 "We have repeatedly stressed . . . that, in keeping l

with court practice, arguments and issues not raised before  !

the Board below cannot properly be pressed initially on l

appeal."12 This settled principle may well come into play  !

in this instance. To be sure, the Coalition's filing below preceded by one day tha applicants' submission to the Licensing Board in support of the proposition that the RG58 cables are not germane to low-power operation. It is  !

i unclear to us, however, that the Coalition's new claim necessarily hinged upon disclosures in that submission. Be P

that as it may, over two weeks elapsed between expudited l delivery of the applicants' oubmission to the Coalition and i the issuance of the Licensing Board's August 8 memorandum j and order. This interval appears to h6ve been sufficient to ,

enable the Coalition to seek leave to present any additional i e

i I

l 11

) Id. at 9-10. )

12 Philadelphia Elcetric Co. (Limerick Generating i Station, Units 1 and 2), ALAB-845, 24 NRC 220, 235 (1986) t (citing /,; warlier decision in the same proceeding, I NRC 479, 496 n.28 (1986)). See also Tonnessee l

ALAD-836 .

Valley Autaurity (llartsville Nuclear Plant, Units 1A, 2A, 18 and 28), ALAb-453, 7 NRC 341, 348, reconsideration denied, i l ALAB-467, 7 NRC 459 (1978). i l

l

7 arguments that might have been suggested by representations 13 in the applicants' papers.

In any event, the Coalition's belated concern is without substance. As the Coalition explicitly acknowledges the applicants advised the Licenring Board  ;

(without contradiction) that only three systeus (referred to collectively as the "Safe Shutdown Instrumentation" (SSI))

are required for safe shutdown during low-power operation:

the Reactor Trip System, the Engineered Safety Features Actuation System, and the Category I Accident Monitoring Instrumentation. Given their training and the established

'3 in its November 17, 1998 response to the oppositions of the applicants and the staff to the appeal, the Coalition seeks (at 3) to justify its tardiness in edvancing its new einim on the g'ound thy. f ts purposc was sinply to ahow that the Lfcenoing Board h6s acced arbitrarily and capriciously in failing "tc even consider the applicability of the second Staff criterion for relevance to low power operation." That  ;

ondeavor falls far short of the mark. According to the coalition's respo.tse (at 2), the criterion in question was "whether failure of the RG-58 cables could mislead plant operators." But the Coalition can scarcety fault the Licensing Board for not addressing that matter in light of the Coalition's ta11uro even to make such an assertion.

In this connection, the Coalition may well not have received its copy of the staff's filing with the Licensing Board until about August 1 (it was served by first class mail on July 27). That being so, it is conceivable that the Coalition did not have a sufficient opportunity to react, before the Licensing Doard's August 8 ruling, to *he staff's reference therein to the possibility that cperators might be misled. Once the coalition reecived the ruling, however,  :

nothing stood in the way %f its promptly seeking Li_consing Board reconcidoration of the Board's asserted fail _ure to cddress that possibility.

9 procedures with which they must become fam111ar,14 there is every reason to expect the operatcrs to rely upon these systems in determining the prcper course of action on their part.

In tha final analysis, the coalition would have us assume that the operators are likely to cast aside their instructions and, wholly inconsistent with governing procedures, place reliance on possibly suspect information garnered from sources outside of the thres systems designed to cope with an accident at low power. In the absence of a cc.ncrete showing that such serious operator error is a

-+a) stic possibility, and the Coalition provided none, the conjecture is scarcely worthy of extended consideratio .

C. For the foregoing reasons, we are satisfied that the Coalition has provided no caur.e to overturn the result reached by the Licensing Board in its August 8 memorandum and order. Our review of the matter has not ctopped, hcwever, at that point. We have gone on to consider whether P

thero is affirmative support in the reccrd for the conclusion that the environmental qualification of the RG58 cable is not ecsential to safe Seabrook operation at low pcwor. We find that there is.

1 See 10 CFR 55.41, 55.43, 56.4

9 i

.t Specifically, the required demonstration is contained ,

in the affidavit of Bruce E. Beuchel, a senior electrical engineer with the responsibility for performing engineering evaluations and preparing engineering design changes involving instrumentation and control systems for the Seabrook facility.15 As explained in detail in his

) affidavit, he had conducted analyses that (1) established the portions of the SSI required during low-power operation; and (2) then verified that those portions would not be affected by an RG58 cable failure (to the point of I destruction) in an accident environment. The Coalition does

! not even endeavor to challenge the Beuchel analysis or the j conclusions that were drawn from it.16 I

i i The Licensing Board's August 8, 1988 merorandum and l

l' order, LBP-88-20, 28 NRC 161, is affirmed insofar as it l

determines that the RG58 cable issue need not be resolved prior to authorization of low-power operation of the i Seabrcok facility.

l i

15 The affidavit, dated July 22, 1986, was attached to i the Applicants' July 22 Pemorandum. Mr. Becchel's qualifications are set forth immediately following the i affidevit.

16 We need not, and do not, explore the sufficiency of i the applicants' other evidence on the point.

. . - - - n.., ..-_ , _, _ . _ -..,..a...- __,ng . _,. y

10 It is so ORDEPID.

FOR THE APPEAL BOARD

b. mb ehA C. J Qn SEoemaker Secretary to the Appeal Board l

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