ML20209J286
| ML20209J286 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 09/10/1986 |
| From: | Cassel D CASSEL, D.W. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-684 OL, NUDOCS 8609160323 | |
| Download: ML20209J286 (15) | |
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[hY UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!RIISSION i
USNRC BEF0PI THE ATOMIC SAFETY AND LICENSING BOARD E SEP 15 P2:00 CFFICE rr M~Wi' f
, -),
q C0C In The Matter Of:
f Docket Nos. 50-456 14 4 COMMONWEALTH EDISON COMPANY 50-457 f
(Braidwood Station, Units 1 and 2)
)
INTERVENORS' OPPOSITION TO APPLICANT'S MOTION FOR AUTHORIZATION OF FUEL LOADING AND PRECRITICAL TESTING Intervenors, by their undersigned counsel, oppose Applicant's motion requesting the Licensing Board to grant authorization to load fuel and conduct precritical testing at Braidwood Unit 1.
Applicant's Motion is triply flawed:
t First, relying on a creative misreading of 10 C.F.R'.
50.57(c), Applicant seeks to oust this Board of its responsibility to make findings on all applicable criteria under 10 C.F.R. 50.57(a),
once any party opposes the request to load fuel and do precritical testing.
Second, because of that misreading, Applicant would have this Board ignore Applicant's obvious inability - in the absence of a demonstrably reliable electrical system at Braidwood - to comply with all applicable criteria of 10 C.F.R. 50.57(A) 8609160323 860910 PDR ADOCK 05000456 G
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i Third, even as to the one criterion of 10 C.F.R. 50.57(a) which Applicant does address reasonable assurance of safety - Applicant. improperly seeks to deny Intervenors the hearing procedures to which we are entitled.
For each of these reasons, discussed in parts I, II and III below, Applicant's Motion mus t be denied.
I.
APPLICANT. MISREADS 10 C. F.R. 50. 57(c) IN AN EFFORT TO IGNORE CRITERIA OF 10 C.F.R. 50.57(a).
This Board's responsibilities are set forth in a straight-forward manner by 10 C.F.R. 50.57(c), which reads as follows:
An Applicant may, in a case where a hearing is held in connection with a pending proceeding under this section make a motion in writing...for an operating license authorizing low power testing..., and further operations short of full power operation.
Action on such a motion by the presiding officer shall be taken with due regard to the rights of the parties to the proceeding, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized.
Prior to taking any action on such a motion which any party opposes, the presiding officer shall make findings on the matters specified in paragraph (a) of this section as to which there is a controversy, in the form of an initial decision with respect to the activity sought to be authorized.
(Enphasis added.)
This section plainly mandates the Board to make findings i
on all maters specified in 10 C.F.R. 50.57(a) whenever:
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"any party opposes" - as do Intervenors here, and "as to which there is a controversy" - which plainly exists here, because Intervenors' pending contention challenges the reliability and safety of the electrical system at Braidwood,*/which will.necessarily be used in fuel loading and precriticality testing' at Braidwood.
This is not, for example, a case in which it is contended that the inadequacy of Applicant's off-site emergency planning precludes fuel loading and precriticality testing.
In such a
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case (assuming Applicant could, indeed, assure that it would not reach criticality), Intervenors' contention would not be
" relevant to the activity to be authorized," i.e.,
there would be no " controversy," and the Board would therefore not be called upon to make the 10 C.F.R. 50.57(a) findings. 'Here, in contrast, the adequacy of the electrical system is patently " relevant" to the " activity" (namely, fuel loading and precriticality testing). Accordingly, it is the Board,which must make the 10 C.F.R. 50.57 (a) findings.
In an effort to avoid this conclusion - because Applicant cannot satisfy the 10 C.F.R. 50.57(a) criteria - Applicant's
- Applicant admits (Motion, p.9) that Intervenors' " contention asserts that the quality of Comstock's electrical installations is indeterminate".
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4 entire argument, boiled down, appears at p.9 of its Motion, where Applicant states that it "will demonstrate that no reliance need be placed on any electrical systems or circuitry in order for Applicant to conduct safely its fuel loading and precritical testing activities.
The contention thus can have no relevance to these activities. "
Even,1f it were true, as Applicant claims, that the electrical. system is not needed to load and test " safely",
Applicant has not claimed - and cannot claim - that the electrical system is not needed to load fuel and to conduct precriticality tes ting.
Obviously it is needed for these activities, unless Applicant were to propose to monitor and conduct loading and t 7 testing by visual inspection, manual valve turning, and so on, with no reliance on' electrical gauges, controls or power.
But even if such a herculean feat were physically possible, it would be' pointless, because the very purpose of precriticality testing is to ensure that the plant's integrated systems including the electrical system interacting with others - will function once the plant goes critical.
Unde r 10 C. F. R.' 50. 5 7 (c), then, the threshold question of relevance is not merely whether, as Applicant suggests, the pending contention is relevant to the safe conduct of the proposed activity.
Instead, the relevance contention is broader:
whether the pending contention is relevant to the conduct of the proposed activity, period.
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5 This interpretation - not Applicant's more restricted reading - is consistent with the plain language of 10 C.F.R. 4 50.57(c), which asks only whether " contentions are relevant to the activity to be authorized."
Section 50.57(c) does not state, as Applicant would have it, " relevant to the safe conduct of the activity to be authorized."
The wording of 10 C.F.R 50.57(c) is no accident.
Its purpose is to specify whether the Board must make 10 C.F.R 50.57(a) findings.
Those findings are not limited only to "s a fe ty. "
On the contrary, section 50.57(a) expressly contemplates findings as well on the following (among others):
"... conformity with the construction permit and the application as amended, the provisions of the Act, and the rules and regulations of the Commission" (550.57(a)(1)),
that, "The facility will operate in conformity with the application as amended, the provisions of the Act, and the rules and regulations of the Commission" (550.57(a)(2)), and reasonable assurance that the proposed activities "will be conducted in compliance with the regulations in this chapter..." (6 50. 5 7(a) (3) (ii)).
Moreover, this regulatory scheme is entirely sensible.
It prudently requires proof of compliance with relevant regulations i
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prior to proceeding with fuel loading and precriticality testing.
This does not mean that all requirements for a full power license must be met in order to obtain a low power license.
It does mean' that where Intervenors' contention - here the indeterminate quality of the electrical system - is relevant to the fuel loading and precriticality testing,10 C.F.R. 50.57(a) findings on compliance with regulations applicable to the electrical aspects of all systems and equipment used in the loading and testing must be made before a low power license can be authorized.
(See Texas Utilities Electric Co. (Comanche Peak), LBP-84-30A, 20 NRC 442 (1984)).
In that case, involving a " broad quality control contention," the Board identified the particular plant systems to be involved in the precriticality testing (e.g.,
fuel handling systems, reactor protection systems) and required " evidence concerning the adequacy of quality control for the contested systems."
20 NRC at 444.
Similarly, here Applicant must identify what systems are to be involved in the precriticality testng, and produce evidence on the quality of the electrical aspects of each system, before the 10 C.F.R. 50.57(a) findings can be made or Applicant's requested authorization granted.
As noted earlier, relying on its misreading of 10 C.F.R. 50.57(c), Applicant's Motion does not even attempt to show compliance of the electrical aspects of relevant systems with applicable regulatory requirements, even in the face of Intervenors'
7 pending contention which, as Applicant admits, " asserts that the quality of Comstock's electrical installations is indeterminate."
(Motion, p.9.)
Applicant has therefore failed to meet its burden to justify the requested authorization.
Moreover, as shown in the next part of this memorandum, it is not difficult to demonstrate that Applicant cannot now do so.
II.
APPLICANT HAS NOT SHOWN AND CANNOT NOW SHOW COMPLIANCE WITH REGULATORY REQUIREMENTS GOVERNING THE ELECTRICAL ASPECTS OF THE SYSTEMS INVOLVED IN FUEL LOADING AND PRECRITICALITY TESTING.
Even though Applicant's Motion does not specify all the plant systems to be used in its fuel loading and precriticality testing, it is clear that the electrical aspects of all those systems are subj ect to a number of the General Design Criteria and Technical Specifications.
(See Appendix A hereto for, an illustrative listing.)
Given Applicant!s failure to date to demonstrate the quality of its electrical systems, Applicant is faced with several choices.
Either it can seek exemption from the relevant General Design Criteria and Technical Specifications, pursuant to 10 C.F.R. 50.12 (See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) CCI-84-4, 19 NRC 1154 (1984))
or Applicant can seek to prove that the electrical system will in fact not be relied upon at all in its fuel loading and precriticality testing; or, to the extent it is relied upon, that the GDC and technical specifications will still be satisfied.
If Applicant l
8 persists in its 50.57(c) request, the Board should begin the formal adjudicatory process whereby Applicant is held to its burden, as described in the next section.
III.
INTERVENORS' RIGHT TO A HEARING 10 C.F.R. 50.57 (c) directs the presiding officer to act on Applicant's Motion "with due regard to the rights of the parties to the proceedings, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized."
Intervenors agree, as Applicant suggest (Motion, p. 7),
that the legal question of the relevance of our contention to Applicant's proposed activities is a legal question to be resolved on the pleadings.
As shown in parts I and II above, the pleadings in this case demonstrate that the contention is relevant to Applicant's proposed activities.
However, once that threshold determination of relevancy is made, Intervenors are entitled to a hearing on whether Applicant satisfies the applicable 10 C.F.R. 50.57(a) criteria, i.e.,
in 1
this case, whether the electrical aspects of the plant systems to be used in fuel loading and precriticality testing satisfy l
all regulatory requircuents including applicable General Design Criteria and Technical. Specifications.
l Applicant argues that its asserted non-electrical means of avoiding criticality will mean that the reactor can be tested i
j safely without reliance on electrical systems.
(Motion, pp. 7-8. )
i Applicant (p.8) attempts to portray this assertion as bearing l
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9 only on the " relevance" issue, and therefore as not requiring a hearing.
In fact, as shown above, Intervenors' contention is relevant regardless of whether Applicant's assertion is true.
Applicant's assertion thus goes not to " relevance" but to the issue of whether the following 10 C.F.R. 50.57(a) criteria are me t:
. whether "[t]here is reasonable assurance (i) that the activities authorized by the operating license can be conducted without endangering the health and safety of the public..."(10 C.F.R. 50.57(a)(3)(i)), and
. whether " issuance of the license will not be inimical...to the health and safety of the public" (10 C.F.R. 50.57(a)(6)).
And on these questions - whether the 50.57(a) criteria are met - Intervenors are plainly entitled to a hearing.*
The er. tensive Diable Canyon 50.57(c) proceedings - including discovery, prefiled testimony, motions for summary disposition, and cross examination - demonstrate the extent to which the regulation comtemplates a formal adjudicatory process as protection for the rights of the parties.
Pacific Gas & Electric (Diablo Canyon), LBP 81-21, 14 NRC 107,110 (1981) and LBP 81-5, 13 NRC 226, 251 (1981).
- In that hearing, Applicant has the burden of proving compliance with 10 C.F.R. 50.57(a). 10 C.F.R. 2.732 f
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10 In this case, Intervenors are entitled to a 50.57(c) hearing process not only on the " safe shutdown" issue raised by Applicant's Motion, but also on the many 50.57(a) regulatory compliance issues not addressed by Applicant's Motion.
However, in this case it is not clear that the issues in the 50.57(c) hearing would be any different from the issues on the merits of Intervenors' contention.
The nature of each set of issues would be the same:
whether extensive harassment, intimidation and production pressure has resulted in electrical work of indeterminate quality.
The only theoretical difference might be the scope of this issue:
Intervenors' contention relates to all L.K. Comstock electrical work, whereas the 50.57(c) hearing would relate only to L.K. Comstock electrical work involved in those plant systens to be used for fuel loading and precriticality testing.
As a practical matter, given the number of systems involved in precriticality testing, the evidence in each hearing might be identical, and separate hearings would be duplicative.
It thus appears that the 50.57(c) hearing should be consolidated with the hearings on Intervenors ' contention. (On the other hand, if Applicant can show that separate hearings would not be duplicative and wasteful, Intervenors would not oppose separate hearings on the 50.57(c) issues.)
11 IV.
DIRECTED CERTIFICATION TO THE APPEAL BOARD IS NOT APPROPRIATE.
Anticipating an adverse ruling, Applicant asks that the Board refer this matter to the Appeal Board pursuant to 10 C.F.R.
- 2. 730 (f) in the following circumstance:
If the Licensing Board does not agree with Applicant's interpretation of the regulatory scheme set forth in 10 C.F.R. 50.57(c), and, in particular, if the Board deems it appropriate to permit discovery or hold a hearing on the issue whether the admitted contentions are relevant to the matters raised in the Mo t io n,...
(Motion, p.16. )
But as noted earlier, no discovery or hearing is needed on the relevancy ques tion.
It is obvious on the face of the pleadings that the indeterminate quality of Applicant's electrical system is relevant to fuel loading and precriticality testing, i.e.,
to the electrical aspects of the plant systems to be used in such loading and testing.
There is thus no need for the Board to address the Applicant's hypothetical request for directed certification, because no hearing on relevancy is required.
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CONCLUSION For the foregoing reasons, Applicant's Motion for Authorization Of Fuel Loading And Precritical Testing should be denied.
Respectfully Submitted Dated:
September 10, 1986 b'
m.
x Douglass W.
Cassel, Jr.
One of the Attorneys for Intervenors
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APPENDIX A:
ILLUSTRATIVE LISTING OF GENERAL DESIGN CRITERIA APPARENTLY IMPLICATED BY APPLICANT'S PROPOSED FUEL LOADING AND PRECRITICALITY TESTING Under Commission regulations, Applicant must submit principal design criteria and technical specifications as part of its application.
10 CFR 50.34 (a)(3)(i); 50. 34(b) (6) (vi).
The principal design criteria are based on the General Design Criteria of Part 50, Appendix A.
10 CFR 50.34(a)(3)(1). The General Design Criteria (GDC), establish minimum design, fabrication, and testing standards necessary to provide a " reasonable assurance" that the facility can be operated without undue risk to the health and safety of the public."
Appendix A,
Introduction:
- 50. 34(a) (3) (1).
Thus, those GDC which bear upon L.K. Comstock electrical work involved in those plant systems to be used in fuel loading and precriticality testing are necessarily controverted matters under 50.57(a).
Applicant, to receive a less than full power license, must prove compliance with these GDC.
An illustratide list of apparently applicable GDC's includes the following:
. GDC 1:
Quality Standards and Records
. GDC 17:
Electric Power Systems
. GDC 18:
Inspection and Testing of Electric Power Systems
. GDC 24:
Separation of Protection and Control
. GDC 33:
Reactor Coolant Makeup GDC 44:
Cooling Water
. GDC 46:
Testing of Cooling Water System Section 50.34 also requires the Applicant to file technical specifications.
These technical specifications must be prepared in accordance with the requirements of 10 C.F.R. 50.36 Id.
Section 50.36 requires the Applicant to prepare technical specifications in seven areas:
Surveillance Requirements ;
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Design Features; Administrative Controls; Initial Notificiation; and Written Reports.
10 CJF.R. 50.86.
Thus, as with the General Design Criteria, the Applicant must prove conformance with the technical specifications in order to comply with Commission regulations 50.36 and 50.34.
- Moreover, compliance with Commission regulations is necessary to meet the requirements of 50.57(a),
Therefore, Applicant must also conform to the technical specifications in order to comply with 50.57(a).
00LKETED CERTIFICATEOFSERMYbk 16 sg) 15 P2301 I hereby certify that I caused copies of_the OFFICE OF L'* '^"l foregoingIntervenors'OppositionToApplWU34kyjkth51$hFor i
Authorization To Load Fuel and To Conduct Precriticality Testing to be served on all parties on the attached service list by personal delivery this 10th day of September, 1986, to the members of the Licensing Board and to counsel for Applicant and Staff in open hearing, and by depositing copies in the U.S. mail, first class postage prepaid, to all others on the service list this same date.
D.. L- (v Cf Douglass W. Cassel, Jr,.
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SERVICE LIST
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Herbert Grossman, Esq.
Ms. Bridget Little Rorem Chairman 117 North Linden Street Administrative Law Judge P.O. Box 208 Atomic Safety and Licensing Essex, IL. 60935 Board United States Nuclear Regulatory Charles Jones, Director Commission Illinois Emergency Services Washington, D.C. 20555 and Disaster Agency 110 East Adams Dr. Richard F. Cole Springfield, IL. 62705 i
Administrative Law Judge Atomic Safety and Licensing William Little, Director Board Braidwood Proj ect United States Nuclear Regulatory Region III Commission United States Nuclear Regulatory Washington, D.C. 20555 Commission 799 Roosevelt Road Dr. A. Dixon Callihan Glen Ellyn, IL. 60137 Administrative Law Judge 1911 Parkview Street Ms. Janice A. Stevens Huntington, Uest Virginia 25701 United States Nuclear Regulatory Commission Stuart Treby, Esq.
7920 Norfolk Avenue Elaine E. Chan, Esq.
Bethesda, MD. 20014 Office of the Executive Legal Director George L. Edgar, Esq.
United States Nuclear Regulatory Thomas A. Schmutz, Esq Commission 1615 "L" Street, N.W.
Washington, D.C.
20555 Washington, D.C. 20036 Atomic Safety and Licensing Gregory Berry, Esq.
Appeal Board Panel NRC Staff Counsel f
United States Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 7335 Old Georgetown Road Bethesda, MD. 20014 Robert Guild 413 Pall Mall Joseph Gallo, Esq.
Columbia, S. Carolina 29201 Isham, Lincoln & Beale 1120 Connecticut Av., N.W.
Docketing & Service Section Washington, D.C.
20036 Office of the Secretary U.S. Nuclear Regulatory Commission Michael I. Miller, Esq.
Washington, D.C. 20555 Peter Thornton, Esq.
Isham, Lincoln & Beale Three First National Plaza Chicago, Illinois 60602
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Atomic Safety and Licensing James K. Asselstine Board Panel Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Nunzio J. Palladino Frederick M. Bernthal Chairman.and Commissioner Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C.
20555 Thomas M. Roberts Lando W. Zech, Jr.
Commissioner Commissioner U.S. Nuclear Regulatroy U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C.
20555 H. Joseph Flynn, Esq.
Erie Jones, Director Associate General Counsel Illinois Emergency Services and Disaster Agency 500 C Street, S.W.,
Suite 480 Washington, D.C.
20472 Springf e d IL. 62705 Lorraine Creek Route 1, Box 182 Manteno, IL. 60950 i
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