ML20214W032
| ML20214W032 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/08/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#486-1813 ALAB-854, OL-1, NUDOCS 8612100056 | |
| Download: ML20214W032 (14) | |
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UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC ATOMICSAFETYANDLICENSINGAPPEALBOAgD DE -8 Ph E4 Administrative Judges:
CFr Alan S. Rosenthal, Chairman December 8,'1986 Gary J. Edles (ALAB-854)-
Howard A. Wilber 3
SERVED DEC -91986 In the Matter of )
)
PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL-1 OF NEW HAMPSHIRE, et al. ) 50-444-OL-1
)
(Seabrook Station, Units 1 ) (Onsite Emergency Planning and 2) ) and Safety Issues)
)
Robert A. Backus, Manchester, New Hampshire, for the intervenor Seacoast Anti-Pollution League.
Thomas G. Dignan, Jr., R. K. Gad III,, and Kathryn A.
Selleck, Boston, Massachusetts, fcr the applicants Public Service Company of New Hampshire, et al.
Robert G. Perlis for the Nuclear Regulatory Commission staff.
DECISION The Seacoast Anti-Pollution League (SAPL) seeks reversal of the Licensing Board's October 7, 1986 memorandum and order in this operating license proceeding. That order authorized the issuance of a license allowing fuel loading and precriticality testing at the Seabrook nuclear power facility. We earlier took up the appeal from the same order 1
See LBP-86-34, 24 NRC .
hok DO 5 j1 ((ig2-G
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filed by the Attorney General of Massachusetts.2 SAPL had joined in that appeal but raised other issues as well. In considering the appeal, we evaluated SAPL's arguments in support of those advanced by the Attorney General, but deferred review of SAPL's separate assertions. We also declined either to affirm or to reverse the Licensing Board's October 7 order until we could examine those separate matters. Upon such examination, we now affirm the Board's order.
A.
The applicants filed a motion with the Licensing Board pursuant to 10 CFR 50.57(c) seeking authorization to load fuel and conduct precriticality testing.4 That regulation provides, in part:
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, pursuant to this paragraph (c), for an operating license t authorizing low-power testing (operation at not more than 1 percent of full power for the purpose of testing the facility), and further operations See ALAB-853, 24 NRC (November 20, 1986).
3 The applicants argue that when a party " joins" in another's appeal, it is confined to the issues and arguments made by the original appellant and may not advance separate issues and arguments. Given our substantive disposition of SAPL's claims, we need not address the applicants' argument in this regard.
4 Applicants' Motion for Authorization to Issue License to Conduct Fuel Load and Precriticality Testing (August 22, 1986) at 1-2 (hereafter, Applicants' Motion).
3 short of full power operation. Action on such a i motion by the presiding officer shall be taken 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. 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 contested activity sought to be authorized. The Director of Nuclear Reactor Regulation will make findings on all other matters specified in paragraph (a) of this section.
The applicants asserted that none of the pending intervenor contentions was relevant to fuel loading or precriticality testing. SAPL claimed, to the contrary, that a portion of its Supplemental Contention 6 concerning the Seabrook control room design review and associated human engineering deficiencies was relevant to the requested authorization.
It also argued that some error or malicious act might permit criticality to occur. In this connection, it suggested that leakage of borated water from the reactor coolant system could affect the applicants' ability to maintain boron concentration at a level sufficient to prevent criticality.
The Licensing Board rejected SAPL's claims. It pointed out that the part of Supplemental Contention 6 that adverted to the control room and human engineering discrepancies had earlier been decided in response to the applicants' motion
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4 for summary disposition. It also indicated that SAPL had not submitted any contention that questioned the applicants' leakage reduction program. Finally, it concluded that the assertions about possible errors that might lead to accidental criticality were " vague" and did not challenge the applicants' methods for assuring maintenance of boron concentration in the reactor coolant system sufficient to prevent the occurrence of criticality.6 Before us SAPL makes three arguments. First, it claims that the Licensing Board's reliance on the summary disposition of the contention dealing with control room design review and associated human engineering deficiencies deprives it of an opportunity to obtain appellate review of Second, it mainkains that the the Board's determination.
Board erred in authorizing issuance of the license because there is no guarantee that criticality will not occur during fuel loading or precriticality testing. Third, it asserts that the Licensing Board failed to make a finding regarding i i the state of onsite emergency preparedness as required by 10 CFR 50.47(d). The applicants and the NRC staff oppose each assertion.
5 LBP-86-34, 24 NRC at (slip opinion at 5).
6 Id. at (slip opinion at 9).
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5 B.
- 1. SAPL first contends that the issue raised in Supplemental' Contention 6 and decided in response to the appliennts' motion'for summary disposition is relevant to
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fuel loading and precriticality testing. It argues from this that the Board's authorization of fuel loading and precriticality testing " deprives [it] of the right to seek redress at the appropriate point in future of the denial of hearing on this issue . . . ."8 Contrary to its claim, SAPL has not been deprived of an opportunity to seek appellate redress of the Board's decision. If, as it contends, the control room design issue is relevant to fuel loading or precriticality testing (a matter we need not decide), SAPL could have challenged the Board's summary disposition of that issue in connection with its attack upon the October 7 order authorizing issuance of the license.9 But SAPL has LBP-86-30, 24 NRC (September 15, 1986).
Seacoast. Anti-Pollution League's Brief in Support of Appeal of Licensing Board Order Authorizing Issuance of operating License to Conduct Fuel Load and Precriticality Testing (October 29, 1985) at 8 (hereafter, SAPL Brief).
9 See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-765, 19 NRC 645, 648 n.1 (1984), aff'd mem., Anthony v. NRC, 770 F.2d 1066 (3d Cir.
1985) (licensing board ruling dismissing contentions and paving the way for issuance of a license is immediately appealable to appeal board).
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6 not availed itself of the opportunity to challenge the substance of the Board's summary disposition determination.
In fact, it has not referred us to any instance where the control room design or an associated human engineering deficiency might affect the safety of fuel loading or
-precriticality testing. That being so, we find no impediment to issuance of the license by virtue of the Board's disposition of Supplemental Contention 6 matters.
Whether SAPL may also attack the Board's decision at a later date must abide future events.
- 2. For a reactor to achieve criticality, i.e., a self-sustaining nuclear chain reaction, a sufficient number of neutrons must be captured by the uranium fuel. Control rods or dissolved boron in the reactor coolant are used to absorb neutrons if it is necessary to prevent criticality.
(Boron is a neutron-absorbing " poison" and decreases reactivity.10) The applicants propose to protect against inadvertent criticality (even in the event that all control rods are withdrawn from the reactor core) by maintaining a 10 See Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 47 n.2 (1981), aff'd, Township of Lower Alloways Creek v.
Public Serv. Elec. and Gas Co., 687 F.2d 732 (3d Cir. 1982).
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7 boron-concentration of 2000 parts per million (ppm) or greater.1 SAPL agrees that criticality could not occur if the boron _ concentration in the reactor coolant system is maintained at a level.of 2000 ppm. But it contends that the Licensing' Board erred in authorizing issuance of the license because there is no " guarantee" that criticality will not 12 occur. In particular, SAPL hypothesizes the occurrence of criticality as a result of the inadvertent or. malicious addition of insufficiently borated water during the replacement of leakage from the reactor coolant system.
SALP notes that the applicants have not submitted the results of leak rate measurements. Its concern over the leakage reduction program was sparked by the appearance of a requirement regarding the submission of leak rate data in a draft of the license authorizing fuel loading and precriticality testing (and in the subsequently issued license itself) . In accordance with that requirement, before exceeding 5% of rated power the applicants must submit the results of leak rate measurements in order to 11 Applicants' Motion at 5. .
SAPL Brief at 8.
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demonstrate that the leakage reduction program has been implemented successfully.1
'SAPL has not set forth any justification for withholding the license for fuel loading and precriticality testing. To begin with, the license requirement cited by SAPL has little, if any, bearing on the safety of fuel loading or precriticality testing.- The submission of leak rate data is ordinarily required before the ascension to power levels above five percent. In the instant case, the applicants committed to submit these data before initial criticality.14 Moreover, SAPL has not shown that the applicants' leakage reduction program will be ineffective. The efficacy of the program comes into play (if at all) only because water to replace routine leakage must be added to the reactor coolant system at the proper boron concentration.
The applicants described the method of ensuring that the boron concentration of the reactor coolant and makeup water See Seabrook Station, Unit No. 1 Facility Operating License NPF-56 (October 17, 1986) at 5. See also SAPL's and NECNP's Response and Objection to Applicants' Motion for Authorization to Issue License to Conduct Fuel Load and Procriticality Testing (August 29, 1986) at 4.
14 See Safety Evaluation Report for the Seabrook
! Station, NUREG-0896, Supplement No. 5 (July 1986) at 15-13.
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D-9 supplies will be maintained at the proper level. In particular, they indicated that
[g]rab' samples will be manually taken from the reactor coolant and makeup' water supply and analyzed at least once per shift to verify that the boron concentration is at least 2000 ppm. In addition, the makeup water supply will be sampled and analyzed in this manner each time any water is added to the supply to verify this concentration.
To preclude inadvertent boron dilution which could reduce the concentration below 2000 ppm, nonborated water sources will be isolated from the reactor coolant system by mechanically locking closed th a padlocks.T5 ppropriate valves with chains and The staff reviewed the applicants' approach and procedures and found that they provided reasonable assurance that the boron concentration of the reactor coolant system would be maintained at or greater than 2000 ppm throughout fuel loading and precriticality testing.16 Based on its review of the parties' submittals, the Licensing Board dete'rmined that SAPL's arguments were unpersuasive. The Board explained:
SAPL's vague concerns about possible errors associated with addition of borated makeup water, and possible analytical errors in monitoring boron concentration, do not challenge any of the physical and administrative controls, or their implementation, devised by the Applicants to assure' maintenance of boron concentration in the 15 Applicants' Motion, Affidavit of George S. Thomas at 2-3.
16 Letter from Robert G. Perlis to Licensing Board (September 18, 1986), Affidavit of Warren C. Lyon at 3-4.
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10 reactor coolant system sufficient to prevent occurrence of criticality in the reactor fuel.17 We agree with the Licensing Board that SAPL has failed to point to any deficiency in the applicants' method or controls. Although criticality is not an impossibility, an applicant need only demonstrate, and a Board need only find, that there is reasonable assurance that the reactor will operate as proposed.18 SAPL concedes that analytical errors leading to a concentration of boron insufficient to prevent criticality is "not a high likelihood event."19 Furthermore, it does not allege that harm to the public would result even if criticality occurred. In the circumstances, the applicants have demonstrated that they have an acceptable program for ensuring that criticality will not occur during fuel loading and precriticality
, testing.
SAPL also argues that a disgruntled employee might attempt intentionally to cause criticality. The Commission has recognized the potential for sabotage as a contributor 1
1 LBP-86-34, 24 NRC at (footnote omitted) (slip opinion at 9).
18 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 741 (1985),
review declined, CLI-86-5, 23 NRC 125 (1986); Commonwealth
, Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 421 (1980).
19 SAPL Brief at 9.
11 to accident risk. Commission regulations require each plant to have a detailed security plan to protect against external and internal sabotage.20 SAPL does not challenge the adequacy of the Seabrook security plan. Indeed, it characterizes a deliberate attempt to cause criticality as
" remote." In the circumstances, the theoretical possibility of sabotage cannot justify denial of the requested license.22
- 3. Section 50.47(d) of 10 CFR provides that a license authorizing fuel loading or operation up to five percent of rated power can be issued "after a finding is made by the NRC that the state of onsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
SAPL contends that the regulation imposes on the Licensing Board "an affirmative responsibility" to make the requisite finding despite the absence of an applicable contention raised by a party in the proceeding. As support, SAPL points to the Commission's response to a public comment on the rule change to allow low-power testing without state and 0
See 10 CFR Part 73.
SAPL Brief at 9.
22 Cf. Limerick, ALAB-819, 22 NRC at 699-701.
SAPL Brief at 6.
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12 local emergency plans in place. There, the Commission stated that "the NRC will review [certain] offsite elements of the applicant's emergency plan . . . ."24 The applicants and the staff disagree with SAPL's argument. They acknowledge that, in accordance with section 50.47(d), the commission must be satisfied regarding the state of onsite emergency preparedness before the license may be issued. But they contend that the Licensing Board need not make such a finding. They point to section 50.57(c), which authorizes the issuance of low-power licenses and provides in pertinent part:
Prior to taking any action on . . . a motion [for issuance of a low-power license] . . . , the presiding officer shall make findings on the matters specified in paragraph (a) of this section as to which there is a controversy . . . . The Director of Nuclear Reactor Regulation will make findings on all other matters specified in paragraph (a) of this section. [ Emphasis added.]
We agree with the applicants and the staff.
Contrary to SAPL's interpretation, the regulations do not require the Licensing Board to make findings with respect to issues not before it. Section 50.47(d) provides that the commission will make a finding as to the state of onsite emergency preparedness but does not assign this responsibility to any component within the agency. Section 24 47 Fed. Reg. 30,232, 30,234 (1982).
9 13 50.57(c) does. As noted above, licensing boards are to make findings as to contested issues, while the NRC staff (i.e.,
the Director of Nuclear Reactor Regulation) must make all other necessary determinations.
The distinction set out in section 50.57(c) between the responsibilities of a licensing board and the NRC staff in granting a low-power license reflects well-established NRC procedure in operating license cases. For example, 10 CFR 2.760a directs that In any initial decision in a contested proceeding on an application for an operating license . . . ,
the presiding officer shall make findings of fact and conclusions of law on the matters put into controversy by the parties to the proceeding and on matters which have been determined to be the issues in the proceeding by the Commission or the presiding officer. Matters not put into controversy by the parties will be examined and decided by the presiding officer only where he or she determines that a serious safety, environmental, or comgpn defense and security matter exists .
As we pointed out in oar Indian Point decision, "once an operating licensing board has resolved any contested issues and any issues raised sua sponte (by the board), the decision as to all other matters which need to be considered prior to the issuance of the requested license is the 25 See also 10 CFR 2.104(c) and 10 CFR Part 2, Appendix A, VIII (b) .
e-e 14 responsibility of the staff and it alone."26 It is thus evident that the Board is required to make the reviews and findings referred to in 10 CFR 50.47(d) for only those matters that were contested.27 The Licensing Board's October 7, 1986 memorandum and order is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD E b NY __h C. JeQ Shobmaker Secretary to the Appeal Board 26 Consolidated Edison Co. of New York (Indian Point, Unita 1, 2& 3), ALAB-319, 3 NRC 188, 189-190 (1976)
(footnote omitted).
27 In this instance, the NRC staff has reviewed the state of onsite emergency planning at Seabrook and found it adequate. NRC Staff Brief in Opposition to Seacoast Anti-Pollution League's Appeal from the Licensing Board's Order of October 7, 1986 (November 14, 1986) at 5.