ML20246F091
| ML20246F091 | |
| Person / Time | |
|---|---|
| Issue date: | 07/31/1989 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V29-N05, NUREG-750, NUREG-750-V29-N5, NUDOCS 8908300152 | |
| Download: ML20246F091 (76) | |
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COMMISSIO'N ISSUANCES
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U.S. NUCLEAR REGULATORY COdMISSIO'N i
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Available from Superintendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.
Single copies of this publication are avalable from National Technical information Service, Springfield, VA 22161 Errors in this publication may be reported to the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)
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NUCLEAR REGULATORY
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COMMISSION ISSUANCES
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May 1989 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), an.1 the Denials of Petitions for Rulemaking (DPRM).
The summaries and headnotes pret 9 ding the opinions reported herein are not to be deemed a part of those opinions or have any independ-ent legal significance.
- U.S, 'NUC L E A hsJ REGULATORY C6lVIMISSION 4
Piepared by the Division of Freedom of information and Pt.blications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925) s e d
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a COMMISSIONERS Lando W. Zech, Jr., Chairman Thomas M. Roberts >
Kenneth M. Carr Kenneth C. Rogers James R. Curtiss Christine N. Kohl, Chairman, Atomic Safety and Licensing Appeal Panet B. Paul Cotter, Chairman, Atomic Safety and Licensing Board Panel l
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y 1 CONTENTS m Issuances of the Nuclear Regulatory Commission PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
(Seabrook Station. Units I and 2) -
i' Dockets 50-443-OL-1,50444-OL-1 (Onsite Emergency Planning and Safety Issues) '
MEMORANDUM AND ORDER,' CL1-89-7, May 3,1989. . . . . . . . . . 395 H y PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
(Scabrook Station, Units 1 and 2)
Dockets 50-443-OL 1, 50444-OL-1 (Onsite Emergcncy Planning .
- and Safety Issues)
MEMORANDUM AND ORDER, CLI-89-8, May 18,1989. . . . . . . .. 399
n PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. .
(Scabrook Station, Units 1 and 2) .
Dockets 50-443-OL-1, 50-444-OL-1 (Onsite Emergency Planning and Safety Iss:ics)
ORDER, CLI-89-9 May 24,1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Issuancer of the Atomic Safety and Licensing Appeal Boards PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
(Seabrook Station. Units I and 2)
Dockets 50-443-OL, 50-444-OL (Offsite Emergency Planning Issues)
L DECISION, ALAB-915, May 15,1989 . . . . . . . . . . . . . . . . . . . . . . . . . 427 '
PUBLIC bERVICE COMPANY Oft NEW HAMPSHIRE, et al.
(Seabrook Stadon, Units 1 and 2)
Dockets 50-443-OL, 50-444-OL (Offsite Emergency Planning Issues)
MEMORANDUM AND ORDER, ALAB-916, May 24,1989 . .. . . . . 434 l i
l Issuances of the Atomic Safety and Licensing Boards j l
FLORIDA POWER & LIGHT COMPANY (St. Lucie Nuc! car Power Plant, Umt 1)
Docket 50-335-OLA (ASLBP No. 88-560-Ol'-LA)
INITI AL DECISION, LBP-89-12, May 9,1989 . . . . . . . . . . . . . . . . . 441 i lii 1
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VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station)
Docket 50-271-OLA-2 (Testing Requirements for ECCS and SLC Systems (ASLBP No. 88-567-04-OLA)
MEMORANDUM AND ORDER, LBP-89-13, May 23,1989 . . . . 461 l
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1, l-Cite as 29 NRC 395 (19b2) CLI-89-7 UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
1 Lando W. Zech, Jr., Chairman Thomas M Roberts Kenneth M. Carr Kenneth C. Rogers James R. Curtiss in the Matter of Docket Nos. 50-443-OL-1 444-OL-1 (Onsite Emergency Planning and Safety issues)
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
(Seabrook Station, Units 1 and 2) May 3,1989 l
The Commission denies a "Second Motion for Reconsideration of CLI 10," in that Interveners have again fundamentally misperceived the purpose and nature of the decommissioningfunding requirements and thus failed to make a case for reconsideration. The Commission finds that the changed circumstances brought to them by Interveners should not be expected to alter substantially the sums estimated by the Commission.
ATOMIC ENERGY ACT: WASTE DISPOSAL l
Even in the event that all three waste disposal sites were barred to Seabrook and the state of New Hampshire does not move to meet its obligations under LLRWPA, the Commission sees no need to alter its decision in CL188-10,28 NRC 573 (1988).
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ATOMIC ENERGY ACT; WASTE DISPOSAL NRC: CONSIDERATION OF ECONOMIC MATTERS NUCLEAR WASTE POLICY ACT: FUNDING FOR DISPOSAL OF SPENT FUEL OPERATING LICENSE (S): DISPOSAL OF SPENT FUEL No demonstration has been made to cause the Commission to believe that
' the sum that it ordered to be set aside in CLI-88-10, including a contingency .
in excess of 514 million, is inadequate to provide the requisite assurance for the limited additional potential costs of continued onsite storage for'the term of
- years until the state of New Hampshire itseY becomes responsib!c for the waste.
ATOMIC ENERGY ACT: WASTE DISPOSAL 1.
NRC: CONSIDER ATION OF ECONOMIC MA'ITERS NUCLEAR WASTE POLICY ACT: FUNDING FOR DISPOSAL OF SPENT FUEL OPERATING LICENSE (S): DISPOSAL OF SPENT FUEL -
RULES OF PRACTICE: RECONSIDERATION PETITIONS The Commission fmds that the changed circumstances brought to it by Interveners should not be expected to alter substantially the sums estimated by the Commission, and thus reconsideration is not warranted.
RULES OF PRACTICE: RECONSIDERATION PETITIONS Because of allegedly changed circumstances that could not have been brought to them, the Commission gives consideration here to matters beyond the original record of the order for which reconsideration is sought.
l MEMORANDUM AND ORDER By this order the Commissica rules on the "Second Motion for Reconsid-eration of CL1-88-10" (" Motion"), filed on March 3,1989, by the Attorney General of Massachusetts (MassAG) on behalf of himself, the Seacoast Anti-Pollution League and the New England Coalition on Nuclear Pollution (co!!cc-396 e
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tively " Interveners"),5 CLI-88-10,8 among other things, established decomm s-
-sioningfunding requirements which Applicants must meet before a license can issue permitting low-power testing operations at Seabrook. Interveners ask that the Commission, on reconsideration of that order," remand the issue of low-level' waste generation and disposal to the Licensing Board for litigation"2 based on factual allegations of the unavailat,ility of low-level waste disposal sites. As the Commission explains briefly below, the Interveners have again fundamentally; misperceived the purpose and nature of the decommissioningfunding require-ments and thus failed to make a case for reconsideration.
In CLI-89-3' (denying reconsideration of CLI-88-10), the Commission reiter-ated that it had established specific fmancial assurance requirements to provide reasonable assurance of the availability of decommissioning funding in the event low-power testing had occurred but a full-power license was not authorized. The Commission made clear that to effect a change in the Commission's dollar re-quirements a party would at the least have to " squarely challenge those included in the Commission's determination." CLI-89-3,29 NRC at 241. '
Interveners' Motion argues that South Carolina's denial of access by New '
Hampshire to the low-level-waste regional disposal fr. ility located at Barnwell, South Carolina, and the State of Washington's denial of access to the facility at Richland, Washington, along with 16 expected denial by Nevada to the facility at Beatty, Nevada, wou? ensure that low-level waste generated by low-power operation at Seabrook cannot now be shipped off site.8 Interveners fail to assert what the projected increase in costs of lengthier onsite storage would be, but simply say they must be explored. The Commission disagrees,
. Even in the event that all three waste disposal sites were barred to Seabrook and the state of New Hampshire does not move to meet its obligations under LLRWPA - matters that, except for purposes of argument, we may not assume to be true, the Commission sees no need to alter its decision in CL1-88-10.
No demonstration has been made to cause the Commission to believe th sum that it ordered set aside in CLI-88-10, including a contingency in excess of $14 million, is inadequate to provide the requisite assurance for the hmited additional potential costs of continued onsite storage for the term of years until 3The Apphcams fihd their response en March 13,1989, and the staff,in turn, filed en March 20,1989.
2CL1-88-10,28 NRC 573 (1988).
3 Motion at 2.
d 29 NRC 234 (1989).
8 Denial of access is pernuned under pronsions of the towlevel Radionetive waste Pohey Act of 1985 U.S.C. I2021b, et seg. (LIRWPA). In particular,43 U.s C. 52021e(eX2XB) estabhshes requircinems for or vaerstate compact regiers that do not have apeatmg low-level radioscuve weste dsposal suas and perm sanchans agamst those states or mornpacts that do not meet milestones toward the developmen thcar own disposal sites. Failure to meet the January 1,1989 milestans subjects the dehnquent state er ea to the possibibty of a bar of future shipreents of waste into BarnwcH, Rachland, and Beatty.
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the state of New Hampshire itself becomes responsible for the waste?.Under LLRWPAs costs to Applicants of low-level waste storage are limited to those '
i accruing until January 1,19%?
The Commission adheres to the view that it previously emphasized-he Commission has not determined that decommissioning will be required after low power tatt simply that in these unique circumstances fmancial projections should be in place to provide reasonable assurana of the availabihty of funds should commercial operation tot occur. In that tight the Commission did not require or expect that the analysis of the cosu of decommissioning would include precise information . . . He Commission expected approximate estimates of costs so that a reasonable minimum sum could be determined and then adequate assurance provided for its availability.
28 NRC at 586 (emphasis in original).
In light of the foregoing discussion, the Commission finds that the changed circumstances' brought to us by Interveners should not be expected to alter substantially the sums estimated by the Commission and thus that reconsideration is not warranted. Accordingly, Interveners' Motion is denied.
It is so ORDERED?
Ibr the Commission SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, this 3d day of May 1989.
6 The Commission notes, without necessarily nlymg on. Apphcants' evidence by affidavit of the imuted nature of such casts. See Apphesnts' Response at 6, with supponmg Affidavit of George s. Thomas, dated March 10.
1989.
742 U.S.C. 5 2021e(d)(2)(C) states in relevant pan:
If a s.aw (or. where applicable, a compact agion) m which low-level radioactive waste is genersted is unable to provide for the disposal of all auch wasic generated withm such state or the compact regmn by January 1.19%. each State in which such waste is generated, upon the request of the generator er owner of the waste, shall take title to the waste. be obbgated to take posacasion of waste, and shall be hable for all damages directly or induectly incurnd iy such generator or owner as a consequence of the failure of she state to take passession of the waain as soon after January 1,1996, as the generator or owner noufies te 5sse that the waste is available for shipment.
8 The Commission pseriously stated that iis decision en reconsideranon in CU-89 3 would be only on the existmg secord. See CU-89-3.29 fGC at 239 n.8. Beause of allegedl; changed circumstances that could not previously have been brought to us, we have given considersuan here to maners beyond the ongmal acord.
' Commissioner Carr was absent for the affirmauon of slus order. If he had been present he wcnild have approved it 398 l
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Cite as 29 NRC 399 (1989) CLl-89-8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Lando W. Zech, Jr., Chairman Thomas M. Roberts Kenneth M. Carr Kenneth C. Rogers James R. Curtiss Docket Noa. 50-443-OL 1 '
. In the Matter of 50-444 OL 1 (Onsite Emergency Planning -
and Safety lasues) -
PUBLIC SERVICE COMP ANY OF NEW HAMPSHIRE, et al.
(Seabrook Station, Units 1 May 18,1989 and 2)
The Commission has before it three separate motions seeking to stay au-theorization to conduct low-power testing at Seabrook. The Commission denies the motions after analyzing the four factors relevant to consideration of stay motions. Those factors did not favor a stay. 'Ihe Commission finds that In-tervenors' claims of harm did not meet the standards of irreparable harm, and Interveners did not demonstrate how the irreversible effects from irradiating the nactor were harm to them. The Commission found further that Interveners not make a strong showing that they are likely to prevail on the merits: (1)
Interveners err in interpreting the Atomic Energy Act to bar any operation of a nuclear reactor until all issues material to the issuance of a full-power license are decided; (2) low-power operation is not a new circumstance, or a separate federal action, either of which could requin further Environmental Impact State-ment analysis under NEPA: (3) delay of corrective measures to three items of the Safety Parameter Display System until as late as the first refueling outage would not result in a lack of reasonable assurance of public health and safety.
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'Ihe Commission found that delay would harm Applicants and would tot serve the public interest.
ADMINISTRATIVE PROCEDURE ACTt STAY OF PROCEEDINGS
- RULES OF PRACTICE: STAY OF AGENCY ACTION l (IRREPARABLE INJURY)
The Commission's determination of whether to grant or deny a stay appli-cation involves consideration of four factors. But it is incontrovertible that the most significant factor is whether the party requesting a stay has shown that it would be irreparably injured unless a stay is granted.
RULES OF PRACTICE: STAY OF AGENCY ACTION (IRREPARABLE INJURY)
Simply reciting claims of risk of some futme harm, without discussing the likelihood or degree of any such risk does not meet the standard of irreparable harm required by this Commission or the courts.
RULES OF PRACTICE: STAY OF AGENCY ACTION (IRREPARABLE INJURY)
At a nuclear plant that complies with Commission requirements for *2 w-power operation, there is no threat of irreparable harm either from the risks or the irradiation of the reactor that occur during low-power testing.
EMERGENCY PLAN (S): LOW. POWER LICENSE (COMPARATIVE RISK ANALYSIS)
RULES OF PRACTICE: STAY OF AGENCY ACTION (IRREPARABLE INJURY)
The Commission has consistently found that the risk of an accident during low-power operations is not irreparable harm. Certain factors contribute to a substantial reduction in risk and potential accident consequences for low power testing as compared to the higher riAs of continuous full-power operations.
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' EMERGENCY PLAN (S): LOW POWER TESTING AND OPERATION OPERATING LICENSE PROCEEDINGS: RISK ASSESSMENT The Commission has recognized a somewhat increased risk of operator error in early phases of operations where operators are less experienced, but nonethe-'
less, determined that the slightly higher risks due to the relative inexperience of operators are significantly outweighed.
EMERGENCY PLAN (S): . LOW. POWER TESTING AND OPERATION NRC: AUTHORITY (IMPOSITION OF LICENSE REQUIREMENTS)
OPERATING LICENSE (S): LOW POWER LICENSE (EMERGENCY PREPAREDNESS)
The greatly lowered likelihood of any offsite harm even in the unlikely event of an accident during low-power testing is all the more true here where the Commission has strictly limited the operation that may occur pursuant to the low-power liccuse.
RULES OF PRACTICE: STAY OF AGENCY ACTION (IRREPARABLE INJURY)
Irradiation of the reactor is not irreparable harm to the interveners.
RULES OF PRACTICE: STAY OF AGENCY ACTION (IRREPARABLE INJURY)
It is true that criticality of the reactor will irradiate the reactor core and thus effect some irreversible changes. The D.C. Circuit, in denying a stay of low-power operation at the Shoreham reactor, evaluated the irreversible changes from low power and found that they did nct rise to the level of irreparable injury, i
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> ATOMIC ENERGY ACT: WASTE DISPOSAL '!
l NUCLEAR WASTE POLICY ACT: . FUNDING FOR DISPOSAL OF SPENT FUEL OPERATING LICENSE (S): DECOMMISSIONING (FUNDING);
DISPOSAL OF SPENT FUEL Re Commission's provisions to ensure availability of funds to decommis .
sion after low-power testing mean that any necessary action to avoid hazards from radioactive contamination resulting from low power testing can be taken promptly, Adequate provisions have been made for decontamination and de-commissioning of the reactor and the safe storage of nuclear waste until it can be removed from the site.
ADJUDICATORY BOARDS: SCOPE OF REVIEW (OPERATING LICENSE PROCEEDING) t ATOMIC ENERGY ACT: HEARING RIGHT OPERATING LICENSE (S): LOW POWER LICENSE (EFFECT ON FULL POWER LICENSE)
RULES OF PRACTICE: CONTENTIONS (APPEALABILITY OF DISMISSAL); REOPENING OF PROCEEDINGS No irreparable harm arises from the . potential mootness of Interveners' claims. Those claims would not become moot simply by the occurrence of low-power operation. Were Interveners ultimately to prevail on their claim that the operator-related exercise was_ wrongly rejected, their contention could be admitted to reopened hearing for adjudication. Were Interveners to prevail in the ensuing litigation Applicants would be required to ctre whatever deficiencies were found. nus Interveners would not be deprived of the opponunity to have their cause of action heard and to receive meaningful relief.
NUCLEAR REGULATORY COMMISSION: AUTHORITY (RELATION TO APPEAL BOARD)
OPERATING LICENSE PROCEEDINGS: ROLE OF COMMISSION The Commission's consideration of the Onsite Exercise contention, which is before the Appeal Board on the merits, is without prejudice to the merits of Interveners' ongoing appeal. In order to make the required predictive finding on the likelihood of success on the merits, the Commission must give at least l
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- 3 threshold consideration to the Licensing Board's decision and the record before the Appeal Board.
NUCLEAR REGULATORY COMMISSION: JURISDICTION OPERATING LICENSE PROCEEDINGS: ROLE OF COMMISSION REGULATIONS: EXEMPTIONS (WAIVER) -
RULES OF PRACTICE: WAIVER OF RULES OR REGULATIONS The Commission's rules are clear that orJy the Commission may waive a rule in an NRC proceeding. A rule waiver will be presented to the Commission only when the adjudicatory tribunal finds that a primafacie case for waiver has been made, but tle decision on whether a waiver is necessary rests with the
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. discretion of the Commission.
RULES OF PRACTICE: WITHDRAWAL OF APPLICATION Withdmwal of an application is neither automatic nor a matter of right, especially where Applicants would be in possession of an irradiated reactor.
- ADMINISTRATIVE PROCEDURE ACT: DENIAL OF APPLICATION NUCLEAR REGULATORY COMMISSION: AUTHORITY OPERATING LICENSE PROCEEDINGS: ROLE OF COMMISSION RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES The Com.r ufon may deny a pending full-power application if it is not pursued. Subsequent to the denial of the application, NRC would nonetheless retain regulatory authority over applicants that are in possession of nuclear materiale.
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J ADMINISTRATIVE TRIBUNALS: JURISDICTION -)
NUCLEAR REGULATORY COMMISSION: JURISDICTION; j ;
RULEMAKING AUTHORITY RULES OF PRACTICE: CHALLENGE TO COMMISSION . ,
REGULATIONS; CONTENTIONS (CHALLENGE OF COMMISSIf".
RULE) '
An adjudicatory licensing hearing is not a permissible forum for a challenge
- to Commission regulations. Such a challenge may be brought by means of a ~ .
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petition for rulemaking. j ATOMIC ENERGY ACT: HEARINGS; INTERPRETATION .
1 NUCLEAR REGULATORY COMMISSION: AUTHORITY 1
Interrenors' claim that Congress did not intend to allow plant operation at !
any power level before the conclusion of all hearings is difficult to understand in view of the Commission's consistent interpretation of its organic statute ra j J
permitting low-power testir.g before the conclusion of all hearings.
l RULES OF PRACTICE: CHALLENGE TO COMMISSION REGULATIONS; CONTENTIONS (CHALLENGE OF COMMISSION .
RULES)
Interveners' challenge to the Commission ngulation that specifically elim- j inates the need for review and findings on offsite state and local emergency response plans before granting a low-power license is impermissible under the Commission rules.
NUCLEAR REGULATORY COMMISSION: AUTIIORITY REGULATIONS: INTERPRETATION (10 C.F.R. I 50A7(d));
YALIDITY l STATUTORY CONSTRUCTION OR INTERPRETATIONS:
l GENERAL RULES Section 50.47(d) was issued on a legally sound basis, and the Commission has been issuing low-power licenses pursuant to it for 7 years. It is significant that Congress has been made aware of this process and has never suggested that the practice is unlawful.
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NEPA: RELATIONSHIP TO ADMINISTRATIVE PROCEEDINGS; SUFFICIENCY OF CONTENTIONS NUCLEAR REGULATORY COMMISSION: ENVIRONMENTAL RESPONSIBILITIES; RESPONSIBILITIES UNDER NEPA '
Interveners' contention that full-power operation is unlikely amounts to no more than speculation as to the eventual outcome of litigation on offsite emergency planning issues and is not a new circumstance requiring further anMysis under NEPA.
ADJUDICATORY BOARDS: STANDARD OF REVIEW; SCOPE OF REVIEW (OPERATING LICENSE PROCEEDING)
LICENSING BOARD (S): RESPONSIBILITIES (ASSESS IIEALTH AND SAFETY RISKS)
NUCLEAR REGULATORY COMMISSION: HEALTH AND SAFETY RESPONSIBILITIES i
OPERATING LICENSE (S): HEALTH AND SAFETY ISSUES RULES OF PRACTICE: COMMISSION REVIEW OF APPEAL BOARD DECISIONS Intervenor provided no explanation to the Appeal Board or to the Comn'ission as to why permitting corrective measures with respect to three items of the Safety
. Parameter Display System to occur at any time up to the first refueling outage would result in a lack of reasonable assurance that the health and safety of the public will be protected, ner does the Commission find any reason to disturb the contrary conclusions of the two boards which carefully considered this matter.
OPERATING LICENSE (S): LOW. POWER LICENSE (EFFECT ON FULL-POWER LICENSE)
RULES OF PRACTICE: STAY OF AGENCY ACTION The Commission finds that there will be harm to th'e Applicants from further delay of low-power testing. In general the Commission has found that longer periods of time for low-power testing hold the advantage that any problem that may be revealed during the testing process can be corrected without delaying full-power operations with their attendant benefits.
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M' .:4 ATOMIC ENERGY ACT: RESPONSIBILITY OF NRC .
LICENSING BOARD (S): EXPEDITION AND THOROUGHNESS LICENSING DECISIONS: ' EXPEDITION AND TiiOROUGHNESS
' SAFETY STANDARDS: COMPLIANCE The public has an interest in the resolution of licensing proceedings with reasonable expedition it is consistent with the expressed iPtent of Congfess, which defines the public interest, that a plant that has been found to be safe for the purposes of low-pvwer testing and is ready to be tested be so permitted, MEMORANDUM AND ORDER The Commission has before it three separate motions with a single purpose:
, to stay auddo-ization for Public Service Company of New Hampshire ("PSNH" or " Applicants") to conduct low-power testing at Seabrook) On consideration of these papers and the responses to them, the Commission declines for the reasons set forth below to impose such a stay. A license for the conduct of low-power testing as circumscribed by the Commission's December 21,1988 order may therefore be issued.2 PuMic Serv /cc Co of New Hampshire (Seabrook Station, Units 1 and 2), CL1-88-10,28 NRC 573 (1988).5 I. BACEGROUND Authorization of the issuance of a license to conduct low p')wer testing at Seabrook was first granted on March 25, 1987, by the Atomic Safety and Lice.nsing Board (Licensing Board) conducting the Laring on onsite emergency planning and safety issues in tids proceeding (Onsite Board). Because of a I'ne monons are: (1) Imervanors' Mone for a stsy of tow Power operanon Pandmg Commismon er Appenate Review. dated May 8,1989, (2) Apptcsta= for $my on Behalf of seacoast Anu Polluuan league, dated May 8.1989. and Q)Intaa snors' Mouoniw a stay of hfiectiveness of 1;6P B9 4 3%ndmg Appeal, dateo Febn=ry b.1989. The suy appheabon m LMP-49-4 (29 NRC 243) was sacampamed by Imervenors'sequest that is b accepted for fdmg ahhough m excess c'the 10 page hmitsuon set fonh m nur rules. The Cornmission grants this sequest, but notes with dupleasure that margs requuements were duragarded and that the f!hng appeared to be unduly freighted with smglespaced lootnotes. we do not expect future fihngs to .ibuse the Camnussion's indulgence m the regard. opposinans :o each of the stay apphcauens have been fJed by the Apphcams and NRC l
saaff.
IPriwmanos for ik etissuve data of the muchonanten so usue e h>w-power licerse are set forth at the conclusion l-of tha order.
3 11ermaNr. D adnusstesttwe decisions in the scabrook proceedmg will be esied ordy by number end date.
The emancy's cumuan system denuns decisions of the 1.icansmg Board Panel as "LDI decmors, of the Appeal Board as *ALABT and the Comnussion decisions es T'LI."
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. number of intervening actions by the Commission and the Atomic Safety and Licensing Appeal Board (Appeal Board) that license has not been issued. 'Ihe Commission does not here retrace the complicated litigation over the past 2 l years that has prevented the issuance of that license. Suffice it to note that .,
in that time the entire administrative appellate course has run on all issues -l on which the Seabrook low-power license depends save one '- the Licensing l Doard's rejection of a contention challenging operator performance bised on an -j emergency planning exercise. Nor are there any design or construction problems . q
- unresolved for full-power operat'.,as. Thus, apart from the exercise contention . j and emergency planning issues, there is a fmal agency decision that the Sec. brook j nuclear facility b safe to operate at full power. 'j
^ In the 2 years since low-power testing was first authorized for Seabrook, the j i
Commission itself has caused the license to be twice stayed.* First, as a maner of R l; policy, the Commission required Applicants before low-power testing to submit - l l' !
their own plan to protect Massachusetts residents in the EPZ in light of the state and local governments' failure to participate further in emergency planning.
That action was completed. Sec CL187 2,25 NRC 267 (1987); CL1-87-3,25 .l NRC 875 (1987); and CLI-87-13,26 NRC 400 (1987). Second, the Commission !
, required that the Applicants present a plan, with supponing documentation, to ensure the availability of adequate funds for decommissioning the reactor in the hypothesized circumstances that low-power testing was conducted at Seabrook and subsequently a license to conduct full. power operations was not granted. l' See CLI-88-7,22 NRC 271 (1988). That condition has also been fulfilled.
Pursuam to CLI-88 7, Applicants submitted a decommissioning funding plan l which in CLI-8810 the Commission found acceptable in part. To cure those portions that were imacceptable, the Commission ordered modifications to the submittal both to increase significantly the sum of funds to be ensured -
from a little over 20 million to 71.2 million dollars - and to provide greater assurance of the availability of those funds. The Commission required the Applicants to submit the necessary assurances for compliance to the NRC Staff =
for review. Staff in turn was to provide notice to the Commission that CLI l 10's requirements had been satisfied. $ce CLI-88-10.
At the time of its CLI 88-10 decision, the Commission was aware that a new contention had been put before the Onsite Board. Taking account of this, the Commission provided that a low-power license could issue after the Staff had provided notice of Applicants' compliance with the decommissioning funding requirements, but ordy after the Licensing Board had resolved the new contention. Recognizing that some parties might wish to seek an agency or a The Couriussian's stsys did nm cover ths annre period. Other adininistrauve elecisions idanufted dr.faciateses en the earlaw deosmnal ruunasuon far Jow-power opersuans. See A1.Alk 883. 27 NRC 43 (1988)(remand ai pubhc emergency muunenuan). Sar ska AIAB-875,26 NRC 251 (1987)(rusnandmg twc sejaeted contenuans).
407 y.. .
3 mx judicial stay, the Commission also established a period after these con t ons dii were met within which stays cot 0d be filed.s The Licensing Board decided the R
matter before it on January 30,1989. LBP-89-4, 29 NRC 62 (1989). ' On May 3,1989, the NRC Staff provided notice that the Applicants had satisfied the Commission's requirements of CLI-88-10. As noted above, on May 8 and 9, Interveners filed requests to stay the low-power operation of the Seabrook facility, in addition to the request seeking a stay of LBP-89-4.
'nie Commission now turns to its decision on those requests.
H. DECISION ON THE STAY FACTORS The Commission's determination of whether to grant or deny a stay appli-cation involves consideration of four factors. See 10 C.F.R. 6 2.788(e). But it
- is incontrovertible that "the most significant factor in deciding whether'to grant a stay request is 'whether the n.trty requesting a stay has shown that it will be irreparably injured unless a stay is granted.'" Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984)..
citing Westinghouse Electric Corp. (Exports to the Philippines), CL1-80-14,11 NRC 631,662 (1980). See also Alabama Power Co. (Joseph M. Parley Nuclear Plant, Units I and 2), CL1-81-27,14 NRC 795,797 (1981) (irreparable injury -
is "the most crucial factor"). Because we find that our determination on that factor does not support the grant of a stay, we turn to it immediately.
A. Whether Low Power Testing Irreparably Injures Interrenors interrenors' Claims Interveners' offer a number of largely unsupported assertions of their claim that they will be irreparably harmed by the low-power operation of Seabrook:
- 1. Interveners contend that irreparable harm results from the increased risk to the public from low-powcr testing which permits low-power operations to take place "despite well-documented inadequacies in the training and knowledge of key plant operatons." (Since the Commission has identified no "well-documented inadequacies in the training and knowledge of key plant operators," the Commission assumes that Interveners refer to disagreements they have with NRC 8 1n a laws arder the Commusion smabhshed a 9-day bnsfing period for swy sequests and provided parues the assurance that ne low power beense would issus ann! any sisy mauons had been decided. Order (unpubbshed)
Mmh 21,19f9 6 The term "Intervenos" win be used imerchanges*4y to Mer to ths vanaus groupmss of the four parbes:
At.orney oeneral for ihr Commonweahh of Massachuseus if*.nssAo).New I:ngla..d Canhuan on Nuctoar Puuunon (NTENP). seacoast Ann-Pouunun 1.mague (s APO. and the Town of flampton (IDHL 408 v..
"A _.-.____a.,____,__ __ _ _ _ __ _ , _ _ _ _ _
Staff and FEMA regarding operator emergency performance during a recent emergency planning exercise. This matter is the subject of LBP-89-4.)
- 2. They contend that even temporary operation at low power will result in irreversible plant contamination caused by radiation of the reactor a..J its component parts, and the creation of high-level radioactive waste. SAPL claims in addition that it wi!! suffer irreparable harm from the creation of a defacto nuclear waste dump at the site.
- 3. They state that "[o]peration at low power will also result in increased worker exposures, and poses a risk to the public health and safety."
4 They state further that should a radiological accident occur at :he Seabrook plant, it could cause irreversible health damage.
- 5. Interveners contend that to permit low-power operations with their-irreversible consequences "would be to allow precisely the harm that Congress intended to prevent in enacting 6189(a) of the Atomic Energy Act. See Commonweahh of Massachusetts v. Watt,716 F.2d 946,952 (1st Cir.1983)."
- 6. SAPL further claims harm from the " tendency oflow power operation sa foreclose alternative courses of action at the site in the event that emergency planning problems prove to be intractable."
- 7. In their stay motion on LBP-89-4, Interveners say that because they ,
seek a hearing on the operator performance issues before low power, irreparable harm would arise from the potential mooting of their appeal of the Licensing Board's rejection of their emergency plar at exercise contention.
Position of Applicants and Staff .1 In response, the Applicants and Staff emphasize that the plant has been foun'!
safe to operate and that under judicially upheld Commission law and precedent, there can be no fmding of irreparable harm.
Decision Neither separately nor in sum do Interv nors' claims of harm meet the stan-dard of irreparable harm required by this Commission or the courts. E.g., Cuomo
- v. NRC,772 F.2d 972, 976 (D.C. Cir.1985), citing Wisconsin Gas Co. v. Fed-eral Energy Regalatory Commission,758 F.2d 669, 674 (D.C. Cir.1985) (" harm must be both certain and great"). ~
EssentirJiy, in all its claims except the fifth and seventh as numbered above, Interveners do no more than recite claims of risk of some future harm, without 409 i
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-vmnv, discussing the likelihood or degree of eny such risk. They also assert claims that irradiating the scactor will result in irreversible effects, without demonstrating how such effects constitute irreparable harm.' On the other hand, as Applicants and Staff have demonstrated, at a nuclear plant that complies with Commission requirements for low-power operation, there is no threat of irreparable harm from either the risks or the irradiation of the reactor that occur during low-power testing. And the Court of Appeals for the D.C. Circuit reached the 1,ame conclusion in Cuomo v. NRC, 772 F.2d at 976. With the record of this proceeding before us, the Commission concludes that the Interveners have -
little likelihood of prevailing on a claim that Seabrook does not meet these requirements.
The Cominission has consistently found tnat the risle cf c.a eccident during low-power operations is not irreparable harm. "[CJertain factors contribute to a
'substantd1 reduction in risk and potential accident consequences for low-power testing as compared to the higher risks in continuous full-power operation.'"
[ Citing 46 Fed. Reg. 61,132 (1981)]. ALAB-865,25 NRC 430,436-37 (1987).
Even in the unlikely event of an accident during low-power operations, the risks 1 of any offsi'e harm are substantially less than at full powcr. See, e.g., CL1-88-10.
See also Emergency Planning and Preparedness Final Rule,47 Fed. Reg. 30,232, 30,233 n.1. {1982).* This is because:
the fission product inventory during low power testing is much lest than during higher power geradan due to the low level of reactor power and short period of operation. Second, at low power there is a significant reduction in the required capacity of systems designed to mitigste the consequences of sccidents compared to the required capacities under fuU power operation. 'Ihird, the time available for taking sclions to identify accident causes and mitigate accident consequences is much longer than at full power.
47 Fed. Reg. at 30.232-33.
'lhe Commission has recognized a somewhat increased risk of operator error in early phases of operations when operators are less experienced. Nonetheless, we determined that in light of the three reasons discussed iqfra the "slightly 7
To the contrary. for enample. Interveners' affaant Bndenbaugh has concluded with respect to worker esposures that they *probably would not caceed allowabic hmita.** Intervenom' stay Eahibit 3. Af6 davit of Dale o. Bndan.
baugh.112. dated october 2A 1987. Moreover, that affidevn supporta no claim of trQury other than econonuc. .
and it as far from clear who suffers any econonue harm.
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The level of nak associated with low. power operaumi has been estimated by the sta'l an sevem! secent operaung hcense casca: Dablo Canyon Docket Nos. 275 oL,323 014 san onofre. Docket Nos. 361-oL 362-oL; and lasalle. Docket Nos. 373 oh 374-oL In each case the safety Evaluauan Report concluded that low-power nak as neveral onics of magrutude less than f4 power nak. These fmdanga support the general concluaton m the scat that a number af factor: paocasted wnh low power opersuun imply greatly reduced nrk compared with full power.
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higher risks" due to the relative inexperience of operators are "significantly outweighed." Id.
Moreover, the greatly lowered likelihood of any offsite harm even in the unlikely event of an accident during low-power testing is all the more true in this instance where the Commission has rtrictly limited the operation that may occur pursuant to the low-power license without obtaining additional Commission approval. Under the terms of CL1-88-10, low-power testing operations (not to exceed power levels of 5%) are limited in duration to no more than the equivalent of 0.75 effective full-power hours.
Similarly, irradiation of the reactor is not irreparable harm to the Interveners.
It is true that criticality of the reactor will irradiate the reactor core and thus effect some irreversible changes.' The Cuomo Court, in denying a stay of low-power operation at the Shoreham reactor, evaluated the irreversible changes from low power and found that they did not rise to the level of irreparable injury. In ALAB-865, in denying the 1987 stay petition for Seabrook low power, the Appeal Board evaluated nearly identical claims to those before the Cuomo Court and found no basis to distinguish them. It specifically concluded "tbat the contamination of the plant and the possibility that waste may need to be stored" did not constitute irreparable injury, The Appeal Board's conclusion then was properly founded on Commission and judicial precedent and is directly applicable now. ALAB-865, 25 NRC at 438. Moreover, the Commission's provisions to ensure availability of funds te decommission after law-power testing, in the hypothesized circumstance that a full-power license would not be granted, mean that any necessary action to avoid hazards from radioactive contamination resulting from low-power testing activity can be taken promptly.
They also ensure that the economic burden will not fall on federal, state, or local governments. In short, adequate provisions have been made for decontamination and decommissioning of the reactor and the safe storage of nuclear waste until it can be removed from the site. Under no circumstances will Seabrook be turned into a " waste dump."
With regard to the fifth and seventh claims, Interveners appear to be asstrt- ;
ing that they would be irreparably harmed by the potential mootness of their j claims. But those claims would not become moot simply by the occurrence of low-power operation. Because both claims are made under the Atomic En-ergy Act, the citation to Commonwealth ofMassachusetts v. Watt, supra. whose holding is restricted to NEPA violations, is inapposite. Nonetheless, that case is instructive that violations of substantive statutes are susceptible to judicial grants !
l 3
' Aher the projected low-power tesung, comanunanon levels in ;he scactor wtB be neghgible apart from the arradiated fuel hsell Apphcams' Response. Affadsvit of omorge s. 'Diamas,113.
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of relief and thus are unlikely to be mooted.28 Were Interveners u'timately to .
prevail on their claim 1efore us that their opemics-related exercise content - i was wrongly rejected, their contention could be admined to a reopened hearing ~6 for adjudication relevant to the grant of a full-power license. Were Interveners to prevail in the ensuing litigation, Applicants would be required to cure whatever deficiencies were found. Thus Interveners would not be deprived of the opportunity to have their cause of action heard and to receive meaningful ,
relief.
Lacking any mear.ingful showing of irreparable harm to them, there is scarce basis for the Commission to grant Interveners a stay. De Commission turns nonetheless to the three remaining stay factors.
B. Whether the Movants llave Made a Strong Showing That They Are Likely to Prevail on the Merits Interveners MassAG, NECNP, and TOH base their stay motions on claims of (1) Onsite Exercise Contention;(2) error that they group under four headings:
Decommissiomng; (3) Violations of the Atomic Energy Act; and (4) Violations of NEPA. To these, which SAPL adopts, SAPL adds (5) Partial Deferral of the Safety Parameter Display System." Of these issues, all but the first and a sin subissue of the second have already received a final agency decision which the Commission has either made itself, reviewed, or after threshold consideration declined to review. See generally 10 C.F.R. 6 2.786. Thus, only as to two issues is there even the possibility that movants can prevail on the merits before the Commission, let alone make the overwhelming showing needed to outweigh a weak case on irreparable harm. Accordingly, we turn to them first.
- 1. The Onsite Exercise Contention his issue arose from the NRC Staff's repon on Applicants'The onsitereport emer-gency planning exercise which was conducted on June 28-29,1988.
found no violations, but Staff did find some matters relating to various operator responses which the Staff initially descrioed as weaknesses. The Staff 2dd these matters in followup discussions with Applicants, as is the normal pro-10 Farr also make clear that sap!y afleging that a hT.PA violatim would 976. Andbec mas moot a msuf a stay, a NEPA vacantion must be cleady stabbshed 564 F.2d Finas, at 456 see mise Cuomo.
of Canibelt, f 772 the equitaes must be balanced and round to favor arerniva re.bef. Amoca Production Co. v, 480 LLs. 531 (1987).
" sAPL also simply Nata, But Duca Not Argue At tagih" whatindividunhaad it percesves as neveral add of the Commission to properly resolve the issues. His hsting mthout more does act warrant Cmnrrussion rapanse-412
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4 *1 cedure.12 The matters were resolved in some cases by c. explanations of misun-derstandings and in others by commitments to implement various initiatives and recommendations for improved guidance to operators. L issue that is raised by Interveners is whether they have been wrongfully denied the opportunity, be-fore low power may proceed, to litigate their contention that, contrary to Staff's l view, the weaknesses that Staff noted have not been resolved and demonstrate that Applicants' onsite plan does not provide adequate protection for the public .
at low power.
Interveners argue, inter alia, that the Board erroneously applied the stan-dards for reopening a proceeding, and also misapplied the late-filed contention standards, causing the rejection of their contention regarding the emergency re-sponse judgments of various NRC-licensed operators. The Applicants defend the decision of the Board and also maintain that the exercise performance is not a relevant standard for ruling on the adequacy of the Applicants' onsite emergency plan which must be available for low power. They also assert that under the Shoreham rule the exercise contention is inadmissible in any event since the Interveners do not a!Iege a " fundamental flaw"in the plan but at most a training problem. See Long Island Lighting Co. (Shoreham NucIcar Power Station. Unit 1), ALAB-9f>3,28 NRC 499 (1988). The Staff observed that the reopening determmation was unnecessary, and that Interveners' failure to file their contention timely, and to satisfy late-filed contention requirements, was sufficient to wa; rant dismissal.
The Commission's consideration of this issue is, of course, without prejudice to the merits of interveners' ongoing appeal. Howeser, in order to make the required predictive finding on likelihood of success on the merits, the Commission must give at least threshold consideration to the Licensing Board's !
decision and the record before the Appeal Board. As set forth below, we find that there is not such a likelihood of a chariged outcome in the Licensing Board decision that the Commission might, as a matter of discretion, wish to stay the effectiveness of LBP-89-4 In particular, ment,D as reflected in questioning by the Appeal Board at oral argu-there is at least a reasonable question whether the exercise is material to a decision on the adequacy of the onsite plan for low power." The scenarios 12"[I]t a normal NRC procedure, when an exercise inspecuan. repet idenufies 'open items ' f or the stafr so conduct a followup
" LBP-89-d,29 NRC atanspecuan
- 14. to deternune whether those opened items should be closed in a sub 7" Judge Rosemhal If an fact the Commission has authorized low pont with respect to man) seactors wnhaut an esercise havint ad an plaes. neuld you agree that that as at least impbcady a rejecuan by the cornnussian o gour punion en $st? Tranaenpt of Oral Argument before the Apped Board. April 21.1989. at 11.
Board dec sian on admission of the comention and if admitted. unt did act decide that the issue was one properly before the onsite Board. but sunply sagtured that the o daende it before low power. If the Board found that the issue was susceptible to hugauan before it and o (Continusd) 413 i
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t being tested were those that would bring into play offsite emergency plans and involved larger and more fast-breaking accidents than any that could reasonably be anticipated at low power in the very unlikely event that such an accident should occur at all.
Assuming, without deciding, that Interveners are coirect that the reopening standard does not apply, substantial timeliness issues must still be resolved to admit a late-filed contention. He answer to the question of whether the contention was timely does not clearly favor interveners. The exercise that is alleged to have revealed the flaws complained of by Intelvenors occurred on j June 28-29,1988; Interveners did not file this contention until September 16, 79 days later. Even assuming they needed the exercise report to frame their contention, that was received m mid-July. Even assuming they needed additional exercise information (contrary to the Licensing Board's finding) Interveners received that information the " weck of" August 15. Since they did not file their contention until September 16, there was a minimum of 27 days from the i last day of "the week of August 15" when the last of the information they
- assert was necessary to their contention was received. That contention was the sole contention pertaining, in their view, to the otherwise concluded "onsite" or low-power portion of the hearing. De Commission reasonably demands that contentions filed after the hearing is under way be filed promptly after receipt of the information needed to frame those contentions. Duke Power Co. (Catawba ;
Nuclear Station. Units 1 and 2), CLI-83-19,17 NRC 1041,1048 (1983). In i these circumstances, we do not now see that there is a substantial likelihood j
that there will be a reversal of the finding that this contention was not timely i and that its late-filing was without good cause. !
Without even reaching the " fundamental flaw" issue, the Commission is l
satisfied that Interveners have not demonstrated a likelihood that they will prevail j in overturning the result of LBP-89-4. The Commission is also satisfied that, whether it was required or not, the Board's diligent threshold examination of the significant safety question provides important assurance that no significant safety matter has been overlooked. See LBP-89-4,29 NRC at 72-86.18 As we have noted supra, this onsite exercise contention is the only issue rel-evant to the safety of Seabrook low-power operations where appellate review of the Licensing Board decision has not been corecluded. If the Interveners'show-ing raised a meaningful doubt whether key plant personnel, who had met NRC admissible. than the Camrmsanon reganred that th hugatior. be conc,1uded before low-power opersuans could be emhan. rad.
IS Of causse, even a abe absence of the adjudicanon sought by interveners the issues presented by die contennon I are not senesaminedama FtiMA and the NRC staff have independently been sausfied dist the June 28 29.1988 I scabnmk exercise, eihach meluded exercise of the Apphcants' onsite plan. has demonstrated reasonable assurance of adequise prntecban for the pubhc. see later. Peterson to siello (Dec.14.1988) refemncing RIMA's seabreuk Emercise Repor (sept.1.1988); NRC stafr Inspection Report Na 5G443/88 09 (July 6.1988).
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operator-licensing requirements, were insufficiently trained and knowledgeable to operate Seabrook saicly at low power, then the Commission itself would want to examine this matter further. But both FEMA and the NRC Staff have found that 'he level of training and knowledge is adequate and that the onsite exer-cise did not show otherwise, even though some problems were observed. The Interveners' differing evaluation appears largely conclusory and at most simply reflects their disagreement witt. FEMA and with the Staff's expert evaluation.
The Licensing Board's opinion remains under review but the likelihood that the Staff's and FEMA's judgment will be overturned seems small and is certainly not enough to support a stay.
- 2. Decommissioning The Commission's rules are clear that only the Commission may waive a rule in an NRC proceeding. See 10 C.F.R. 6 2.758. A rule waiver will be presented to the Commission only when the adjudicatory tribunal finds that a primafacie case for waiver has been made, but the decision on whether a waiver is nec-essary rests with the discretion of the Commission. As explained previously, the Commission on analyzing the concerns of the parties found that a waiver of its rule exempting public utilities from financial qualifications review and ,
i findings was not needed. This was in large measure because the Commission could reasonably and without a waiver provide the principal relief sought, i.e.,
assurance that notwithstanding the pendency of a Chapter 11 Bankruptcy pro-ceeding for Public Service Company of New Hampshire, adequate funds would be available to decommission Seabrook under the hypothesized circumstances that low-power operation was concluded and that a full-power license was not granted.
Answers to Interveners' claims of error in our resolution of what must comprise the decommissioning funding plan may be found in our responses to Massachusetts AG's successive requests for reconsideration of CL1-88-10.26 We do not repeat them here, nor do we believe that Interveners can be heard to complain of the Commissi?p's efforts to establish a reasonable funding mechanism for decommissioning, in brief, the Commission rejected Applicants' l proffer of $21 million in an internal fund as insufficient in amount and in security.
It required assurance of $72.1 million dollars prefunded in 1988 dollars in a separate and segregated internal account with specified additional guarantees or by surety or other guarantee method."
"S** CD-ft 3. 29 NRC 2M 0989). arid CtJ t9.'t,29 NkC 395 09th.
U on review of Appbcams' Arst proffer of comphance.the NkC Su!f found that in changmg ham a prefunded scenunt to a surety method of guarantee to be paid out in successwe years as the need arose. Appbcants had (Cont nud) l 415 l
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One new argument raised in Interveners' stay papers may be easily dis-patched. With regsd to implemente. ion of CLI-88-10, Interveners argue that the agreement is deficient in that it provides for obligation of the surety only on
~ denial of a full-power license. Interveners fear that Applicants might withdraw their application and thus prevent the Commirsion from denying the license and triggering the surety agreement.
The simple answer is that withdrawal of an application is neither automatic -
nor a maner of right," especially where as here Applicants.would be in -
di f ll possession of an irradiated reactor. The Commission may deny a pen ng u -
I
" power application if it is not pursued. Subsequent to the den al of the application, - ~
NRC would nonetheless retain regulatory authority over applicants that are in possession of nuclear materials. .
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In light of the foregoing, Interveners cannot claim a likelihood of success on this issue.
- 3. Viciations of the Afomic Energy Act Interveners also claim that the NRC has erred in interpreting the Ainmic Energy Act to permit any operation of a nuclear reactor before allissues material to the issuance of a full. power license are decided. This claim directly challenges -
the Commission's regulation at 10 C.F.R. 6 50.57(c). An adjudicatory licensing -
hearing is not a permissible forum for a challenge to Commission regulations.
See 10 C.F.R. f 2.758. Such a challenge may be brought by means of a petition for rulemaking.
Interveners state in their stay motion that [i]t is clear that Congress did not intend to allow the initial operation of a nuclear power plant at any power level
before the conclusion of allhearmgs. Interveners' Stay Motion at 4. This claim which is unsupported is difficult to understand in view of the Commission's consistent interpretation of its organic statute as permitting low-power testing before the conclusion of all hearings." ,
insufficiently allowed fw the sum to be in 1968 dollars. Adjustments inemaams the amouns of sumy were mads '
before Esas promied nouce that Appheams had sampbed. ,
181se 10 C.F.R 62.!D7(s): "Ihe Comnussion may permit an applicam to withdrew an opphcanon . . . . c.r may, si saceweg a request fer withdrawal of an apphcauan. deny the apphcauan er dasmiss it with preju-dwe . . . ?
"Saa 150.57M 37 Fed. Reg.1s.127 (1972): g)
As apphsent may, in e emme where a haanns is held in cannacuan wah (an operstmg r_ heanse snake a taction in wnung pursuant to this paragraph (c), for an eq>emung hcenes authonr.ing lowtower tesung (operatian at not more than t perces of full power for the purpose of tesung the facihty), and further operahans short of full power apersnon. Acuan en such a mauon by the presidmg officer shall
, be taker, with due regard to the mghts of the parues tothe pmceadmas includmg the right of any party I
to be heard to the saient that his contenuons are relevam to the acuvny to be authassed. ..
(Conrinust) 416 1
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In particular, Interveners have challenged the Commission's regulation that specifically elimir.ates the need for review and fmdings on offsite state and local emergency response plans before a low-power license may be granted. See 10 C.F.R. 6 50.47(d).20 This challenge is also impermissible under the Comrnission rules. See 10 C.F.R. 62.758. Section 50.4?(d) of 10 C.F.R. was issued on a legally sound basis, and for 7 years the Commission has been issuing 10w-power lic-nses pursuant to 6 50.47. It is also significant that Congress has been made aware of this process through quarterly reports which include notification of the issuance of such licenses. Congress has never suggested that the practice is unlawful.
Interveners also assert that "even if the Commission reads the Atomic En-ergy Act as permitting the issuance of low-power licenses, it would be arbitrary and capricious to issue one in this case, in light of the great uncertainty that Seabrook will ever receive an operating license." Interveners' Stay Motion at
- 4. Interveners profess that there is great uncertainty because the " Common-wealth's nonparticipation in emergency planning" compounds the unlikelihood that Seabrook will meet the Commission's emergency planning regulations and secondly because, in their view, it is highly questionable (although Interveners do not state why) that PSNH, "which has declared bankruptcy, will ultimately receive a license to operate Seabrook."
Our discession of Interveners' " improbability" claim infra at pp. 418-19 is equally applicable here. The Commission will not speculate at this stage whether and, if so, when a full-power license will issue for Seabrook, but we do note the following. In every NRC authorization act that has been passed since 1980, Congress has instructed the Commission to consider utility emergency plans whenever state or local governments refuse to submit plans. The NRC has amended its rules to make clear that it will consider such plar.a as a basis for a full-power operating license.10 C.F.R. 5 50.47(c). That rult Ms been judicially upheld. Commonweahh of Massachusetts v. United States, 856 F.2d 378 (1st Cir.1988). The utility has prepared such plans for those portions of the Seabrook EPZ which are in Massachusetts. The plans have been exercised. The emergency plannir3 or f both the New HampslGre and Massachusetts portions of the emergency planning zone have been found adequats by FEMA. A Licensing Board has already found that the New Hampshire plan meets the Commission's licensing requirements. LBP-88-32,28 NRC 667 (1988). Hearings are under way on the utility's plan for the Massachusetts portion of the e nergency planning The Canumanon has long issued lowpwer heensa pursuant to 150.57(c1 E.g.. Dagwas ught Co. (Beaver Vatey Powes suman. Utut 1). LBP.%s. 3 NRC 44 (19M1 ComroMased Ed. sun Co. af New York (Indan Fumt.
thnt 3}, LBP 4!t.1 NRC 43109751 23 Ttus pnwsuan ha been in place amoe 1982. see 47 Fed. Reg. at 30.236.
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zone. In those hearings FEMA's favorab!c finding has the status of a rebuttable presumption.
With respect to Public Service's bankruptcy petition, insofar as it has been relevant to our provisions for the public health and safety the Commission has taken a.ccount of it and will continue to do so.
In these circumstances we continue to find that eventual full-power licensit:g of.Scabrook is in the " realm of the possible."2d Thus it is reasonable for the Commission to act promptly, before a final resolution of all full-power issues, so that the Applicants may derive the full benefits of low-power testing.
i 4 Violations of NEPA Interveners contend that low-power operation is either a significant new i chcumstance necessitating a supplement to the 1982 Final Environmental Impact
. Statement (EIS) or a separate federal action requiring its own EIS. The sole reason presented for this asserted obligation is the alleged improbability of Seabrook's rece'ving a full-power license. This fraprobability, they argue, mandates that the costs and benefits of operating only at low power be separately evaluated.
This is not the first time that the Commission has faced such a NEPA claim. As the Appeal Board observed in rejecting Interveners' argument,"[t]he principal and decisive difficulty with this line of argument" is that it has been rejected both by us in the Shoreham proceeding and by the Court of Appeals for the District of Columbia Circuit. ALAB-875,26 NRC 251,259 (1987), citing Long Island I!ghting Co. (Shorcham Nuclear Power Station Unit 1), CLI 9,19 NRC 1323,1326 (1984), and CLI-E5-12,21 NRC 1587.1589 (1985);
Cuomo v.NBC,7'i2 F.2d at 974 '76. Interveners base their belief thtt full-power operation is unlikely on the fact that in September 1986 the Commonwealth of Massachusetts refused to submit emergency plans for the Massachusetts sector of the 10-mile emergency planning zone (EPZ) around Seabrook."-
In this pfoceeding, as in Shoreham, the Commission recognized that " low-power testing could be held up if it were established. beyond significant doubt, that there were truly insuperaMe obstacles to issuance of a license for operation at any substantial power level." CLI-87-2. supra,25 NRC at 271. To assure itself i
(
21Saa 26 NRC at 404. Owen the cumnt mate of the record ef umergency plannmg kanng, it would appear that t ' PsNWs hkehhood of receiving a fuDpesar hcense is greater than it was when the Comnussion first made thns cosensaum is 1987.
Mineerveanus aho essen that"It}he bankruptcy of r%1ir service of New Hampshim. the lead apphess for the j seshmok heense, camsidershly deepens the abubt that scabrook will ever get its full pcwcr heerme? stay Motion l
st 6 Wh thm should be the case is totally unexplained. The PsNil bankruptcy concewably could affect the I utihtyi seby w Jecommassen the facibty should it not uhimately be grated a fullpwer heense. To assure l itself that ds;un.missiomng funds will be available an such an evemushty. the Commissiat has required the estabbahment of a deconn.ussierthg surety fund.
1 418 i
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a- a that this was not the case, the Commission, as a matter of policy, required the
' applicants to file an offsite emergency response plan to include the Massachusetts portion of the EPZ. Id.: CL1-87-3. The Applicants did so? The Commission examined that plan and concluded that adequate emergency planning for the Massachusetts portion of the EPZ is at least "in the realm of the possible."
CLI-87-13, 26 NRC 400, 404 (1987). While uncertainty exists with respect l to the ultimate outcome of the ongoing litigation over the adequacy of offsite emergency planning, such uncertainty is nc different from the uncertainty that always exists where futepower issues rernain in dispute? See 19 NRC at 1327.
In short, Interveners' contention that full-power operation is unlikely amounts to no more than speculation as to the eventual outcome of litigation on offsite emergency planning issues and is not a new circumstance requiring further analysis under NEPA.
Finally, we repeat here what we said in the Shoreham proceeding:
iE]ven were we required to perforre some cost / benefit analysis at this interim stage of these proceedings. we would not say that the uncertaint) of iSeabrook] fulepower operation is so great that it necessiunes avoidance of the environmental effects of low. power testing. De environmental effects of low-power testing are well known,i.e., moderate irradiation of the core and contamination of the remainder of the primary coolant system, with no significant irnpact m the surrounding environment by releases of efnuents dunng normal operation.
Rese effects of low. power testing are subsumed in the FE1S's analysis of the far greater, but nonetheless very small impacts from full pov er operation In our view, the benefits of low-power op ration clearly outweigh the envimnmanal costs.
CL1-85-12, supra,21 NRC at 1590.
- 5. Partial Deferral of the Safety Parometer Display System SAPL comends that the Appeal Board (ALAB-875,26 NRC 251,264-67 (1987)) erred in affirming the Licensing Doard's finding (LBP-87-10,25 NRC 177,183-87 (1987)) that certain deficiencies noted by the Staff in the Seabrook Safety Parameter Display fystem (SPDS) could await correction until the first refu.e:ing outage after full-power operation with no tmdue ri-k to the public l
1 U 1he utihty plan addresses the sisteen plannmg stankrds by which emergency plans are judged (see 10 r:JA $ 50.47(b) and NUROG 0654) ana has campensa:.mg masures for At lack of state and local government gruerpation.We note agam that the ticonstra Board resolved all centtenuens relatmg to emergency resp that paruon of the EPZ mWun New Hampsture m fs<or of Appbcama. t.BP 88 32. 28 NRC 667 (1988). We also agam note that although Massachusetts refv .es to cooperaie with sa.brod emergency planrung, such cooperauon as not a sie, gua wa for a full power heense.10 CEA 6 50 47(c)(I) (1988), cownom.ealsa of Afassactueerts
- v. Unned Startsmpes. In this regard the Federal Emergency Managed em Agency has approved the utilriy's plan is the Massadruartas poruon of the EPZ thus es;abLshag a shunable presampuan that the plan is adequate.
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health and safety.n SAPL argues that such delay ignores the Staff's statement .
in Supplement i that "[p}rompt implementation of an SPDS can provide an F important contribution to plant safety" Suppl.1 at 8?'
b It is important to emphasize that what the Appeal Board sanctioned was not a delay in implementation of the entire SPDS but faimply a schedule setting the ii first refueling outage as the deadline for three corrective measures required ty-the Staff? Those measures pertained to (1) the containment isolation display, .
a device that depicts the open and closed status of valves that come into play, when there is a need for the sealing of the contabment; (2) the data validation ,
algorithms, a procedure for treating several measurements of the same parameter [
I to obtain the desired signal for the SPDS: and (3) the tests of SPDS cornputer response time under heavy loading, See 26 NRC at 265-67.
With regard to the first, the Appeal Board no'ed that witnesses for Staff and ,
l Applicants had testified that a modified display on the main control board would ,j' suffice until the display was incorporated into the SPDS, a position smrebutted by SAPL. With regard to the i.econd, the Appeal Board noted that the Staff's concern " appeared 10 be limited to the case where an off-normal signal might -
. but that Staff testimony showed "that, if such a signal should change enough to affect adversely the information conveyed by the SPDS, it would most likely activate an alarm on the main control board . . . [and that] the operators d do not rely on SPDS information alone but are required to corroborate any SPDS data with other control room information before taking any corrective
- action." 26 NRC at 266. With regard to the third, the Appeal Board noted that uncontradicted testimony showed "that some level of plant operation is required M Ahhaugh all the aformation available on the sPDs is & splayed elsewhere in the control room, the spDS acrves the funcnon of providmg m a ccnvenien locanan in the comrol room a coneme esplay of crincal plact dam.
The key purpose d the SPDs is to aid control room personnel durms abnormal or ernergency candiunna. The SPDs is one of the requiremema approved for implementanon in NUREC 0737,Clanficauan of TMI a.cuan Plan Regmremema" (Novanber 1980). Dependmg upon safety rigmncance and the immediacy of need far carrective acnon, NUREG-0737 set an implemamation achedule specifymg that many of the post-TMI aqmrements be implememed pnm to imtial enucahty, but 6d met impose such a requuernent with respect to the sPDS. In NUREo-0737, supplement No.1 (Suppl.1), pubhshed in January 1983, the staff provided funher clanficanon regardmg the sPDS but determined not to spectfy an implementation schedula. Rather, staff decided to permit development of plam spectfic schalules which would take into care rance the dess of complenon of the power gnt. suppl 1at12.SAPL ines to convey 6.e impression that because supplanant I was pablsh of any denciencies until a pasm after the beginnma of low-power apesure at seabmak cannat be pmmp? This completely ignares the fact that supplement 1 au2ihanucly chase not au ampane generic schedules based upon lapse of uma from 1983 but instead recograd that an sPDS soust be imegrated wah other systems, and thus gant-specific schedules were needed based on the pomt of drvelopmera of the particular fa The staff argued befom the Licensmg Board that all eleven danciencias found in a staff audit of the seabrook 1
SPDS rau:4 ewait conscraus until the 6rst r%futbrg outase. The Board eaarmned each deficiency and concluded l
diat, escept lur thme defmanctes shot would have to be corrected prior to full-power operanon, the Apphcants had esu%shed that the others other would have no adverse impact on the pubhc 1alth and safety if corrections an drierrud to the fi.rst rduehng outage or had already been conected by the appuanms in such a manner as to prr.act the pubhc heahh and safety.
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to load the computer to provide a test that will give representative SPDS response times." Id. SAPL provided no explanation to the Appeal Board or to us as to why permitting corrective measures with respect to these three items to occur at any time up to the first refueling outage would result in a 1,0 7f reasonable assurance that health and safety of the public will be protected . f do we fmd any reason to disturb the contrary conclusions of the two boards that carefully considered this matter.28 C. Harm to Other Parties De Commission fmds that there will be harm to the Applicants from further delay of low-power testing. In general the Commission has found that longer periods of time for low-power testing hold the advantage that any problems that may be revealed during the testing process can be corrected without delaying full-power operatio 1s with their attendant benefits. See Shoreham,21 NRC at 1590.
De anticipated time left for low-power testing before a full-power license can be granted is not long. An Atomic Safety and Licensir.g Board decision on a full-power license for Seabrook is expected before September 30,1989. See Commission's Memorandum (unpublished). February 3,1989.2' If that decision is favorable to Applicants, Seabrook could have a full-power license within 5 months after receiving a low-power license. This is no longer than Interveners' affiant Bridenbaugh has assened was the average time between the grant of low-power and full-power licenses during a period when he found that the "two-step process worked reasonably well," Intesvenors' Stay Exh. 3 at 6-7,18 & n.2.
D. Where the Public Interest Lies Finally, as the Commission has consistently held, the public has an interest in the resolution of licensing proceedings with reasonable expedition.
Furthermore, it is consistent with the expressed intent of Congress, which defines the public interest, that a plant that has been found to be safe for purposes 28 SAPL, imphes that deferral of tNue correcuans to the fust sofuchng outage means that the supplement I requuement that "operstars should be trained to respond to accident candiuons bads with and without the sPDs availaNe" cannot be met. First. at is misleading to call the sPDs unavailaMe sanply becs :se a few corrections in the sysiam need to be made. second, the sigruficance of that opesator traimng seguirement is thn operators are fully abic to handle ernerger:cies wuh ar without an sPDs. Thus the incompleteness of an sPDs door not snean that an operstar is not trained to respond to accident conditions.
"In its February 3.1989 Memarandum, the Commissian noted that, extrapolating from the L.icensing Board's pubbshed schedule, h appeared that september 30,1989. would be e remhstic time to expect a finalimuni decisica on offsne emergency plannmg. De Coasnusion ihan stated that k *would like the tacensing Board to infarm the Cnemassaan prenspdy if, at any taans, a becomes apparent that she september 30,1989 target schedule for a Anal mrCai decisim cannat be actueved." The Corrsiussian has received no such ticuncanon frorn tN Board.
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- of low-power testing and is ready to be tested be so permitted. It serves the public interest to have adequate time to test and cure any problems revealed in
. order that if and when the plant is licensed to operete and provide the bene fits - g
~of nuclear power to the public, there will be no further delay. '!
'Ihus, the Corr. mission finds that the public interest does not favor the grant of a stay.
- Conc *usion j
' In light of the foregoing, the three pending applications for a stay are denied. l~
'! 1 Effectiveness of Order ;
interveners have filed a challenge to the Seabrook low-power license in the j U.S. Court of Appeals for the District of Columbia Circuit.: Commonwealth of Massachusetts v. NRC, No. 89-13% (D.C. Cir., filed May 11,1989). In connection with that challenge, Interveners have also sought a stay of any low-
. power license for Seabrook pending resolution of the issues raised in their !
i appeal. That stay request has not been acted on by the Court.
.Although, for the reasons set forth in this order, the Interveners have not
' made a case for a stay, in order to give the Court an opportunity to review these stay claims and any appositions that may be filed, we are entering a brief housekeeping stay at this time. No license authorizing low-power testing for ,
Seabrook shall issue before May 25,1989, at 4 p.m. EDT, or such earlier date as the Court may deny the stay requests now before it.
It is so ORDERED.
For the Commission
- SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, this 18th day of May 1989. ,
i
- Camensionar Curuss did not rarucipais in this order.
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Cite as 29 NRC 423 (1989) CLf-89 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
I-Lando W. Zeeh, Jr., Chairman Thomas M. Roberts Kenneth M. Carr Kenneth C. Rogers James R. Curtiss in the Matter of Docket Nos. 50-443-OL 1 50-444-OL-1 (Onsite Emergency Planning and Safety lasues)
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
(Seabrook Station, Units 1 May 24,1989 and 2)
The Commission finds that Inervenors' motion for reconsideration of CLI-89-8,29 NRC 399 (1989), does not seek reconsideration of matters before the Commission, but rather seeks a stay based on an entirely new theory. The Commission determines that interveners' failure even to address the irreparable harm factor in the context of the new theory is fatal to the stay motion and therefore denies the motion. The Commission also notes that interveners have not made the substantial showing required for reopening of a closed record.
RULES OF PRACTICE: REOPENTNG OF RECORD A substantial showing would be needed to reopen a hearing where not only is the evidentiary record closed, but also the Commission has issued a final detailed decision.
423
l ORDER On May 22,1989 - 2 days before the expiration of the Commission's housekeeping stay to enable the U.S. Court of Appeals for the District of Columbia Circuit to rule on stay motions before it' - the Attorney General of the Commonwealth of Massachusetts on his own behalf and on behalf of Scacoast Anti-Pollution I.cague, the New England Coalition Against Nuclear Pollution, and the Town of Hampton (together the " Interveners") moved the Commission for " reconsideration of CL1-89-8" and renewed Interveners' request j
for a stay. But what is sought is not reconsideration of the matters before the Commission; rather, Interveners seek a stay based on an entirely new l theory never presented to us, the Licensing Board, or the Appeal Board. In essence, Interveners ask that the Commission delay a low-power license until the conclusion of current emergency planning litigation before the "Offsite Board" on a contention that they have not until now claimed was relevant to a low-power license.2 The Commission denies the motion. First, Interveners added nothing to their previous showing of irreparable harm which the Commission found was insufficient to warrant a stay. See CL1-89-8,29 NRC at 409-11. The failure even to address the irreparable harm factor in the context of Interveners' new theory is fatal. Second, Interveners have not made the substantial showing that would be needed to reopen a hearing where not only is the evidentiary record closed, but also the Commission has issued a final detailed decision. The lateness of Interveners' raising this new theory constitutes a total failure to timely alert the Commission to their concerns; moreover, it is clear demonstration that this matter is not one that even in Interveners' eyes jeopardizes the pub.lic health and safety during the limited low-power operations authorized for Seabrook.8 3 Commonwealth of Manachusaru v. NRC.No. 89-1306 (D C. Car., fded bay 12.1989).
21n comrast. Imervenom did earber assert that a different contattian (one based en abe pedormance of heensed opersion) which also flowed from Appheams' orne gercy plannmg esercise was relevam to nasuance of a low-l er beerme.
Purmaet to ths Appeal Bonurs order (AtAB-916,29 NRC 434). the Intervenon* comenuon on which their innant snarme is basual, winch the tacensing Bsard had das week distmssed for lack of junsdicuan, was temstated for hugmian.
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11 is so ORDERED.
For the Commission * '
JOHN C HOYLE
? Acting Secretary of the Commission '
Dated at Rockville, Maryland,'
- this 24th day of May 1989.
T l-
"Chabmen Zach was nas pesus for the affirmadon of dus Order,if he had been preern he would have apprwed
- n. Canamstaner Orma did mas perumpsie in this Order.
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Cite as 29 NRC 427 (1989) ALAB-915 o
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Alan S. Rosenthal, Chairman
' Thomas S. Moore Howard A.Wilber in the Matter of Docket Nos. 50-443-OL 50-444-OL (Offsite Emergency Planning issues)
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et af.
(Seabrook Station, Units 1 and 2) May 15,1989 The Appeal Board affirms a Licensing Board's ruling, LBP-89-3,29 hTC 51 (1989), denying an intervenor's petition to reopen a closed record to consider certain seismic isst.:s.
RULES OF PRACTICE: REOPENING OF RECORD A motion to reopen a closed record must address a significant safety or er.vironrnental issue. 10 C.F.R. 2.734(a). In addition, such a motion must be accompuied by one or more affidaviu _which set fonh the factual and/or technical bases for the movant's claim that such an issue is involved. Rrdier, the affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised.
427 i
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RULES OF PRACTICE: REOPENTNG OF RECORD Reopening motions that do not meet the requirements of 10 C.F.R. 2.734 within their four corners is subject to rejection outof-hand; i.e., it must appear fro:n the morant's own submissions that the standards for reopening have been satisfied. Louisiana Power & Light Co. (Waterford Stearn Electric Station, Unit 3), CLI-86-1, 23 NRC 1 (1986); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units a and 2), CL1-86-7,23 NRC 233 (1986), aff'd sub nom. Ohio v. NRC,814 F.2d 258 (6th Cir.1987).
RULES OF PRACTICE: REOPENING OF RECORD A petitioner who seeks to reopen a closed record is not relieved of the requirements of the reopemng standard by virtue of being represented by a non-lawyer. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,1247 (1984), rev'd in part on other grounds, CL1-85-2,21 NRC 282 (1985).
APPEARANCES Elizabeth Dolly Weinhold, Hampton, New Harrpshire, appellant pro se.
Thomas G. Dignan, Jr., George II. Lewald, Kathryn A. Selleck, Jeffrey P. Trout, Jay Bradford Smith, and Geoffrey C. Cook, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.
Gregory Alan Berry for the Nuclear Regulatory Commission staff.
DECISION On November 25,1988, an earthquake occurred in the Province of Quebec in Canada. This event prompted Elizabeth Dolly Weinhold to endeavor to enter the operating license proceeding for the Seabrook nuclear facility on the New Hampshire seacoast - a proceeding that has been in progress for more than seven years.3 Specifically, in a petition filed on December 5, Ms. Weinhold called upon the Licensing Board to inquire into the significance of the carthquake from Ms. wcanhoM ms a party to the senaamchan permit pracsedmg for the scabmok racihty.
428 1
! 8 1
E_ _. _ _
1' the standpoints of Seabrook's seismic design basis and emergency response plan. The petition asserted that it was filed pursuant to the Rule of Practice authorizing the grant of a motion to reopen a closed record provided that the following criteria are satisfied:
(1) The motion must be timely, except that an etc.eptionaDy grave issue may be cantidered in thr discretion of the presiding officer even if untimely presented.
(2) he motion must address a significant safety or environmental issue.
(3) he motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidena been considered initially.2 In a January 30,1989 decision, the Licensing Board denied the petition.8 Ms. Weinhold appeals. The applicants and the NRC staff oppose the appeal.
We affirm.
A. Under Commission regulations, a nuclear power plant must be designed to comply with certain seismic and geologic siting criteria contained in Appendix A to 10 C.F.R. Part 100. As we explained several years ago in a decision in the construction permit proceeding for this facility, the " Safe Shutriown Earthquake" (SSE) concept is at the root of those criteria:
ne SSE for a particular site is that earthquake *which is based upm an evaluation of the maximum carthquake potential mnsidering the regional and local geology and seismology and specibe characteristics of local sub-surface material and "which could cause the maximuin vibratory ground motion at the site. " 10 C.FR. Part 100. Appendix A.
III(c), V(a). The nuclear power plant must be designed so that, should the SSE occur,
- certain (specified safety] sinactures, systems, and components will remain functional." 14.,
VI(a).
In short, the SSE is the carthquake postulated for the purpose of determining the adequacy of the seisraic design of the facility. he plant has to be capable of being safely shutdown despite the effects of whatever vibratory ground motion might be experienced at the site as a resuh of the SSE. (One of the elements of the SSE determination is, of course, an asartainment of the amount of such motion (14., V(a)).)"
As discussed in some detail in a later decision in the construction permit proceedirg, the size of an earthquake is generally measured in terms of either
" magnitude" or " intensity."8 Suffice it to say for present purposes that mag-2 10 Cf.R.1734(a). As will be discussed an greater danil below, subsection (b) mpures that the n.ation be supparuj by one or more affidavua.
The peunan also cued 10 CE.R.1714 and 1805. The former sectum of the Rules of Pracuce is concemed with interveman in adpubcaury proceedmgs, the lauer deals wnh pamcipman in rulemakmg proceedmgs by interested persons and. as auch, has no apparern nlevance here.
8 LEP.B9 3,29 NRC 51 oM9).
" AtAB-623,12 NRC 670,672 o 980) (quaung DairplandPower Coopersaur (la Crosac Boilmg Water Reactor),
ALAD-618.12 NRC 551,552 (1980)).
8 ras ALAB-667,25 NRC 421,43637 (19s2).
429 I
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nitude, expressed in terms of arabic numerals on the so-called Richter scale, is determined with the aid of various types of seismographs. In sharp contrast, earthquake intensity, which is reflected in roman numerals on the so-called Mod-ified Mercalli scale, is not instrumentally measured. Put into use to estimate the size of earthquakes occurring before instruments had been devised for the mea-surement of earth movement, the intensity conceirt has at its root the subjective assessment of that size on the basis of the observed effect of the carthquake on persons and structures (the greater that effect, the higher the assigned numerical value to its intensity).*
In the case of the Seabrook site, the SSE was expressed in terms of maximum intensity.7 For this purpose, the applicants selected a value of VIII, with an associated maximum wibratory ground motion (i.e., acceleration) at the site of 0.25g. This choice was challenged and extensively litigated in the construction permit proceeding.' Ultimately, it was upheld.'
Despite this consideration, Ms. Weinhold's petition rests essentially on the assertion that a 6.0 magnitude has been assigned to the Seabrook SSE, whereas the recent Quebec carthquake had a magnitude of 6A. Ms. Weinhold has not informed us of the basis for the first prong of that thesis.20 As to the second prong, the petition points to " reports in local newspapers" to the effect that Mary Cajka, said to be associated with the Geophysics Division of the Geological Survey of Ottawa, Canada, had " issued a statement that the epicenter magnitude of the [ Quebec] earthquake was measured as 6A and was felt as far west as Cincinnati, Ohio and as far south as Washington, D.C. and parts of Virginia.""
The petition goes on, however, to acknowledge that the National Oceanic and Atmospheric Administration's Earthquake Center in Golden, Colorado, had measured the carthquake as magnitude 6.0 and to express the hope that the variation will be resolved by the agencies in question and a " correct magnitude" supplied to this Commission.22 6See ad at 437 n.39 for the effens sunbuted by Diades F. Richter e preenunent gemmologist. to each uusnasty level from I to XII. For its pan. the Rachter seals theoreucaD) has no lower or upper knut. See B. Boh. f.ar:Aguckes
- A Prs.ner 0978) at 106.
7The was became the major aanhquakes in the northeast secuans of the Uruted stains and Canada that were considered in datormuung the ssE occurred in the eighiaemh connary. long before the devolarment of semmographs. see AtAB-422. 6 NRC 33. 57,64610977).
8See ad at 54-65; AtAB461.10 NRC 410 0979); CLJ.8433,12 NRC 295 0980); ALAB 667,15 NRC 421.
' AtAB467.15 ERC at 449.
20 Although the pounan does not refer to AtAB467. in a footnaie in that decision we noted parenthencally that a magnitude ai 6 0 n'presems *an intensity of approzhmmely VEL" Jd at 442 n 45 lemnhasis anded). we did mot mean en suggest. however, the custance of a precase encalauen betwem spec 6s antensity and magrutude levels.
To the onutrary, we endier observed irt the same decanon that there as espen opuuan to the efect that such a carrsinuan does not eust. Id at 429 n.19.
HPeunan (Dooember 5,1988) at 2.
12n=d The peudon also refers to "Laped televised news reports and newspapers throughout the nauon" that assenedly repsuted effects of the eenhquate that buttress the claun that the event was severe Jd at 8.
430
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l i
' On the assumption that the Qaebec earthquake had a 6.4 magnitude, the l
petition maintains that the Seabrook SSE requires reevaluation with the possible consequence that the facility will require modification to ensure its ability to withstand the effects of a larger carthquake tinn that now postulated." In addition, Ms. Weinhold advances five contentions that collective!y assert that the Seabrook emergency response plan might prove inadequate in the event of an earthquake exceeding a magnitude of 6.0 in eastern United States regions.2*
B. The Licensing Board based its denial of the Weinhold petition on several ,
alternative grounds. We need not explore cach of those grounds. As previously .l noted, Ms. Weinhold's petition seeki to reopen a closed reccid." It is plain that, .
as they have been spelled out in both section 2.734 of the Rules of Practice 25 .j and Commission decisions concerned with record reopenings, the conditions ;
precedent to the grant of such relief have not been satisfied. !
Section 2.734(a) mandates that a reopening motion address a significant safety or environmental issue. To enable an informed judgment on whether this ' j requirement has been met, subsection (b) of that section directs that the motion be accompanied "by one or more affidavits whPh set fonh the factual and/or l technical bases" for the mov:r.t's claim that such an issue is involved. R rther, i l
the affidavit (s)"must be given by competent individuals with knowledge of the . 1
' facts alleged, or t y expens in the disciplines appropriate to the issues raised." l The petition at bar is not accompanied by any affidavit, let alone one that l complies with the dictates of section 2.734(b). To the contrary, all that the i petition provided to the Licensing Board was Ms. Weinhold's opinion that the . :j Quebec earthquake has possible safety significance for Seabrook. Even had it !
been supplied in affidavit form, : hat opinion scarcely would have fulfilled the '!
I obligation imposed by section 2.734(b). j For one thing, the petition is devoid of anything to suggest that Ms. Weinhold {
has any forncal education or professional experience in the highly technical and I complex disciplines of geology, seismology and canhquake engineering. In her appellate brief, she concedes as much but maintains that she "has researched -i the issue of Earthquakes - Seabrook Nuclear Facility since 1971" and was {
an active panicipant in the litigation of the seismic issues presented in the j construction permit proceeding for the facility." Apart from it.e fact that not all j of these representations are to be found in the petition put before the Licensing j t
Uld at 12.
I'44 et 9-1O U Ms. Wemhnid appmeetly secogerized that such shef was necessary because, at the ame of the fding of the peution. shes oss no open secord a this procesang regar&ng any esaanne issue. see 10 CJ.R. 2.734(d). As ;
pnwsausly noted, an quasaans pennining to the esisrmeity of the sesbraak siac wars litissied in the onnstrucuan !
prc.ceadmg and mene of the parues to me opersung boense proceadmg sought to scopen the subject '
- 10 Cf.R. 2.7s4.
U Wemhold Bnef (Febmary 27.1989) at 54.
l 431 1 I
.y k' :.
1;
. Board, however, the' bare assertion of self-education presented to us falls far l
short of demonstrating that Ms. Weinhold is an expert in any of "the disciplines L
appropriate to the issues raised."
Further, it appears that Ms..Weinhold cannot even lay claim to having l
" knowledge of the facts alleged." As we have seen, the sole sculte of her, L insistence that the Quebec earthquake was of 6.4 magnitude are reports in unspecified " local newspapers" that an employee of the Geological Survey of Ottawa had issued a statement to that effect. Inasmuch as the employee was ~
identified by name in the newspaper accounts, at the very least one might have
' expected Ms.LWeinhold to have obtained that person's affidavit detailing the basis.of her knowledge respecting the seismic measurement of the Quebec-carthquake. Most significant, once having done that, it would then have been incumbent upon Ms. Weinhold to supply the sworn opinion of a qualified expert on the safety significance to Seabrook operation (including emergency planning) -
of an earthquake of the measured magnitude occurring at the particular Quebec location.'8 Any possible doubt that the Commission expects its adjudicittory boards to enforce the section 2.734 requirements rigorously -i.e., to reject out-of. hand -
reopening motions that do not neet those requirements within their four corners
- is dispelled by its 1986 decisions in the Waterford and Perry operating license pmceedings.2' In the former, the Commission addressed the question of our authority to seek additional information from the agency's Office of Investigations before ruling on a motion to reopen the record on new contentions.
Answepug that question in the negative, the Commission squarely held that it must appear from the movant's own submissions that the standards for reopening -
have been satisfied." On the strength of that determination, the Commission rejected the portion of the reopening motion referred to it by us because of the failure of that portion "on its face" to meet those standards.28 Shortly thercafter, in Perry, the Commission reiterated its Walerford ruling in circumstances closely akin to those presented here, in January 1986, a 5.0 magnitude carthquake occurred in the vicinity of the Perry nuclear facility in Ohio. Within a matter of days, an intervenor in the operating license proceeding 38That 6t is far rnwn estabhahed that eenhquakes in the Province of Quebec have such passible sigmficance is reflecied by the discussion in ALAB422 of the rolesanor ud the 1732 Montreal earthquake to the scabmd saamic inquiry. Saa 6 NRC at 6041.
8 Imas.ana Powrr & Lig hr Co. (Waterford steam Decinc stauon. Unit 3). CU46-1,23 NRC 1 (1986). Clrwland Elec>ic flimmaareng Co. (Pt:rry Nuclear Power Piers. Uruns I and 2) C1J46-7. 23 NRC 233 (1986), afd sub moas. Ohio v. NRC,814 F.2d 258 pth Car 1i/87).
- At the tune of the Fararford decision, thase standards were sa fonh in adjudicatory decisians such as facFac Gas and Electric Co, (Disblo Canyan Nuclear Power Plent.Umns 1 and 2). ALAB 598.11 NRC 576. 879 0980)
(cited with approvalin Afsaropolaran Edason Co. Uhree Mde Ishd Nuclear stauon, Urs 1). CU-8*.2. 21 NRC 2E2.313 0985)). imsr in 1956. shey were caddsed an secuan 254. which added i'm affidavit mm. See
$1 Fed. Rag 19.535.19.539 ar amected. $1 red, Reg 23.523 0 986).
21 p,,,,faid. 23 NRC et 8 432 i
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.e .
1 filed a moticr with us to reopen the record for the purpose of admitting a new contention challenging, in light of the earthquake, the adequacy of the facility's seismic design. The gravamen of the motion was that the earthquake exceeded the Perry SSE in a particular respect. Following the receipt of the responses of the utibly and the NRC staff to the motion, we ordered an exploratory hearing for the purpose of aiding our determination respecting the significance of the carthquake to safe Perry operation.
Acting sua sponfe, the Commission vacated our orders calling for the exploratory hearing and itself denied the motion to reopen. It said:
Our Waterford decision holds that a Board is to decide the motion to reopen on the information before it and has no authonty to engage in discovery in order to supplem mt the pleadings before it. Simply put, the burden of satisfying reopening requirements is on the movent, and Boards must base their decisions on what is before them. That the movant did not meet this burden in the view of the Appeal Board is evident from the Board's order of April 8,1966, in which h states that it needs the exploratory hearing to aid its
- determination respecting whether she new i.uue raised by she fintervenor's) motion ha.r true safety ahsilicance? (Emphasis added.) Accordingly, the Board had no authority to pursue IM matter as it did. See also Aferropolitan Edaos Co. Ghree Mile Island Nuclear Station, Unit 1), Ctl.B5 7. 21 NRC 1104,1106 (1985).22 he shon of the matter thus is that a grant of the Weinhold petition would fly in the teeth of both the explicit terms of the governing Rule of Practice and controlling Commission precedent. His being so, the outcome below was mandated.
For the foregoing reasons, the Licensing Board's January 30,1989 denial of Ms. Weinhold's petition, LBP-89-3, 29 NRC 51, is aff irmed.
It is so GRDERED.
FC't THE APPEAL BOARD l Barbara A.Tompkins Secretary to the Appeal Board 22rerry. 23 NRC at 235 36. The Comnussion went on to note the imervener's cancessmn that there was no engineerms sigmficance to the suspect in wluch the earthquake ucended the facihty's asaams design.14 at 236.
That carmeeration does not, hmiever, appear to have been cmsaal to su decision.
It is worthy of possing menuen d.st the Perry smerwenar was represemed by an andmium) who. an common with Ms. Wanhold, was not a lawyer. 'lhe Commissaan obviously did not negard that considersuan to affect the l imervenor's affirmauve ebhgsuan to mest the seaperung standard. similarly. Ms. Wemhold's pro as siatus here l Ad noi seheve her of that obbgataart Sea Marmpotusa Ed.stm Co. (Three Mae Island Nuclear statsan. tinit 1),
l AIM 772,19 NRC !!93. 2247 (2 PSA) Pre'd m part en oAar gcounds. CLJ-85 2. 21 NRC 282 (1985) 433 l
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l l Che as 29 NRC 434 (1989) ALAB 916 )
L !
l 1 l UNITED STATES OF AMERICA ' .
E NUCLEAR REGULATORY COMMISSION J ATOMIC SAFETY AND LICENSING APPEAL BOARD '
l Administrative Judges:
L 1
l Alan S. Rosenthal, Chairman )
' Thomas S. Moore Howard A.Wilber !
In the Matter of Docket Nos. 50-443-OL 50-444 OL l (Offs!!e Emergency '!
Planning issues) i PUBLIC SERVICE COMPANY OF l NEW HAMPSHIRE, et af.
(Seabrook Station, Units 1 '
and 2) May 24,1989 "Ihe Appeal Board grants directed certification and reverses a Licensing Board's oral ruling " expunging" for lack of subject matter jurisdiction a portion ;
of a previously admitted contention of an intervenor in the proceeding.
RULES OF PRACTICE: INTERLOCUTORY APPEALS I
An appeal board normally undertakes discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it ;
with immediate and serious irreparable impact which, as a practical matter. l could not be alleviated by a later appeal or (2) affected the basic structure of '
the proceeding in a pervasive or unusual manner. Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-405,5 NRC 1190,1192 (1971) (footnote omitted).
434 t
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pi l
LICENSING BOARDS: ASSIGNMENT OF RESPONSIBILITY l' In the absence of contrary dir::ctions from the Commission,' the Chief
. Administrative Judge of the Licensing Borid Panel is empowered both (1) to establish two or more licensing boards to hear and decide 6iscrete portions of a licensing proceeding; and (2) to determine which portions will be considered by one board as distinguished from another. See, generally.10 C.F.R. 2.704, 2.721.
LICENSING BOARDS: ASSIGNMENT OF RESPONSIBILITY The powet of the Chief Administrative judge of the Licensing Board Panel (1)
L to establish two or more licensing boards to hear and decide discrete portions of l-a licensing proceeding; and (2) to determine which portions will be considered by one board as distinguished from another must be exercised within the confines l ' of the totality of issues that are properly before one Board or another as a result i:
L of the notice of hearing or some Commission directive. Sec Northern Indiana L fublic Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619,12 NRC 558,565 (1980); Commonwealth Edison Co. (Carroll County Site) ALAB.601, 12 NRC 18,24 (1980); Pordand General Electric Co. (Trojan Nuclear Plant),
l1 - ALAB-534,9 NRC 287,289 n.6 (1979); Public Service Co. ofIndiana (Marble P :lill Nuclear Generating Station, Units 1 and 2), ALAB.316,3 NRC 167,170-71.
(1976).
APPEARANCES
- John Traficonte, Boston, Massachusetts, for the intervenor Anorney General of Massachusetts.
Thomas G. Dignan, Jr., George H. Lewald, Kathryn A. Selleck, Jeffrey i.
P. Troat, Jay Bradford Smith, Geoffrey C. Cook, and William Parker, Boston, Massachusetts, for the applicants Public Service Com-pany of New Hampshire, et al.
Sherwin E. Turk for the Nuclear Regulatory Commission.
MEMORANDUM AND ORDER Before us is tht. May 23,1989, motion of the intervenor Attorney General of Massachusetts seeking directed certification (it, interlocutory review under 435 AW1
. a 10 C.F.R. 2.718(i)') of a May 22,1989, oral ruling of the Licensing Board in this operating license proceeding involving the Seabrook nuclear power facility.
That ruling " expunged" for lack of jurisdiction over the subject matter a portion of a previously admitted contention (MAG EX-19) proffered by the Attorney General. Because of the apparent necessity for a prompt decision on the tuotion, we directed that the responses of the applicants and the NRC staff be in our hands by 9:00 a.m. Otis morning? Upon consideration of the motion and the responses, we conclude that interlocutory review is warranted and that the challenged ruling is erroneous. Accordingly, we grant directed certification and reverse the ruling.
A. Insofar as here relevt.nt, contention MAG EX-19 asseru, (in Basis D) that tha June 1988 exercise of emergency response plans for the Seabrook facility disclosed that the computer model utilized to develop protective action recommendations (PARS) contained fundamental flaws. This contention was submitted by the Attorney General on September 21, 1988, in accordance with a schedule promulgated by the Licensing Board assigned to consider "offsite emergency planning issues." In an unpublished December 15, 1988, mernorandum and order, the Board admitted, inter alia, that portion of the contention.
In expunging Basis D for the coatention in its oral ruling now under attack, the Licensing Board (through its Chairman) explained that it was without jurisdiction to consider that Basis. This conclusion stemmed from the insistence of the Attorney General that a precondition to low-power operation ss art acceptable computer model for PARS generation. According to the Board, it lacks the jurisdiction to entertain so-called " low-power" issues? Apparently, the Board believes that such issue; come within the exclusive province of the separate Licensing Board that had been established some time ago to consider safety and onsite emergency planning issues.'
B. The directed certification motion at hand would have us review the conclusion of the Board below respecting the outer bounds of its jurisdiction.
The first question we must address is whether the standard for interlocutory review of Licensing Board action is here satisfied. Given the proscription egainst interlocutory appeals found in the Commission's Rules of Practice,5 we 3 see fabhc Snssica Co. of Nao Hampdira (scabrook $tauan. Umts 1 and 2), ALAB-271,1 NRC 478. 482-83 0975).
2 See May23.1989. order (unpubbshed).
- Die need for espedinon mated on the fact shat the apphcams' aquest for the mhng in quesnon we prompted by a pending motion f!!ad by the Anorney General with the Cumnussian on May 22.1989. See Tr. 2: .178-79. on behalf on other imerve .'rs as well as htmacif. the Attomey oeneral has asked the Comm:ssian m that mmtama to aconsider hs demal an ClJ-89-8. 29 NRC 399 0989), of amervenor snouuur aceAing e say of the awwance to the apphcanu of a heense authanung low-powes tesung of scabrook.
In caHmg far secursuderanon of Clbl9-S. kte Attmey Genera: emphettly rehed upon the pendency of the riow expurged pornen of tes t.mentaan MAG EX-19.
3 Ts. 22.22n.21.
"See Tr. 22.190.
83,e 10 Cf.R. 2.730(f).
436 I
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E exercise most sparing our discretionary authority to embark upon such review.
Specifically, we observed more than a decade ago that iallmost without exception in recent tirnes. we have undenaken discretionary interlocutory
. review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious ineparable impact which, as a practical matter, could not be allevia;ed by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.*
We need not decide whether, as the Attorney General maintains, his motion satisfies the first prong of this test. For, be that as it may, we are persuaded that the challenged ruling "affects the basic structure of the proceeding" in a
" pervasive" manner. Surely, a Licensing Board determination as to what type of issues are before it to consider and decide (as opposed to being before some other Licensing Board assigned to the same proceeding) goes to de " basic structure" of the proceeding. And that this Licensing Board's view of its jurisdictional boundaries has been pervasive in effect is reflected by the recollection of its Chairman that the Board was "always aware that [it was) the offsite board [and had] repeatedly turned down contentions which would go onsite."7 C. We now turn to the merits of the ruling below. It is settled, of course, that a licensing board must confme itself to those matters with respect to which it has been given authority to act. In circumstances where, as here, there is more than one board assigned to consider aspects of a particular licensing proceeding, this means that each must be careful not to invade the territory that has been carved out for another. This consideration led us last year to reverse an action taken by one licensing board in the Shortham operating license proceeding to the extent that that action materially affected the disposition of issues.pending before a second board in that proceeding.
For these reasons, the Licensing Board in the proceeding at bar correctly focused on the question of the scope of its jurisdiction vis a vis that of the so-called "onsite" Board. Unfortunately, however, it came up with the wrong answer. This is tipparent from a notice issued last January 10 by the Chief
' Administrative Jt.dge of the Licensing Board Panel.
The primary purpose of that notice was to advise the parties of certain changes in the composition of the Licensing Board assigned to offsite emergency e
rshLt smee Co. c/lada (Marhie Hill Nuclear Generaung stauon. Units 1 and 2). ALAD-405,5 NRC 1190, J!92 0977) (foocune mdned) 7 Tr. 22.182 see alsr>Tr. 22.191 ("we haw never come ously taken juns6ction over matters that we felt arguaNy would han ban tror) the Omne Barnr').
8 see Isag Islatal Lig44ag Co. (shorcham Nuclear Power stauan. Unit ). At.AB-902. 28 NRC 423. Commission review dachand. CLI 88-11. 28 NRC 603 (1988).
437 u_____. . _ . _ _ _ _ _ _ _ _
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l planning matters (i e., the Board that issued the ruling at hand). But the notice j
- went on to address specifically the matter of that Board's jurisdiction: .!
At present, a separate Licensing Board of limited jurisdiction (sometimes referred to for j convenience as the *onsite" Board), exists to hear and resolve issues related to " safety and l
- onsite emergency planning issues." Notice of hec.onstitunan of Board (Seriember 9,1985). ;
'i See Unpubbshed Order (Instructions Re Submissions), dated October 7,1985. In view of the - i existence of two Licensmg Boards in this proceeding, the jurisdiction of each Board should
, be stated clearly. 4
- s. *lhe instant Board (sometimes referred to for convenience as the "ofisite Board"),' as 'I reconstituted herein, stands in the shoes of the original Licensing Board cartstituted November -l 30,1981 in response to the October 19, 1981 notice of hearing. See 46 Fed. Reg. 51,330 i (1981). Thus, the Licer. sing Board re:onrtituted herewith has generaljurisdiction over a,*!
matters pertaining now or in the future to the applicationfor a licenre to operate Units )
- and 2 of the Seabrook Station not otherwise espressly arsigned to the onsite Board?
There is no room for serious doubt that, at least in the absence of contrary di-rections from the Commission, the Chief Administrative Judge of the Licensing Board Panel is empowered both (1) to establish two or more licensing boards to hear and decide discrete portions of a licensing proceeding; and (2) to de-termine which portions will be considered by one board as distinguished from another.S Thus, the allocation of jurisdiction set forth in the January notice was ,
well within the Chief Judge's' authority and, as such,is entitled to full respect. l This being f,o, the pivotal consideration is whether the substance of contention
, MAG EX-19 has been " expressly assigned" to the "onsite" Board. Our review of the annals of the proceeding indicates that that Board has a single issue remaining for its determination: the adequacy, from the standpoint of full-power operation, of the applicants': arrangements for public notification in Massachusetts of a radiological emergency." While acknowledging that the "onsite" Board's current jurisdiction is so limited, the staff tells us, in effect, that both Licensing Boards had lost jurisdiction over the issue raised by contention MAG EX-19 at the time the colitention was filed. The staff does not elaborate on this thesis and we do not find any foundation for it, In September, there clearly was room to advance a low-power issue before some Licensing Board and the
'Nouce of Reconsutunan of Board,54 Fed Reg. 2009 0989)(ernphasis suppluu!).
30 See, generetty,10 Cf.R. 2.704, 2.721. Needlest to say, that power must be exercised mthin the confmes of the totahty of issues that are properly before one Board or another as a result of the nouce of heanns or sauas Comuussion ducedvs. See NortAern Indens Fahhc Service Co. (Bailly omeraung sunan, Nuclear 1),
AIAB 619,12 NRC 551,565 0980), Comunom.aatA Edma Co. (Carroll County Sne), A1AD-601,12 NRC 18, 24 0980); Perdaad onneet Einesrar Ce. (trojan Nucts,ar Plam) ALAB 534. 9 MRC 287. 289 n.6 (1979): Pubhc Jervsv Co. ofledsams (MaMe 1011 Nuclear Genersung suuan, Uruts 1 and 2), ALAB.316,3 NRC 167,170 71 0 976).
H See CIJ.88-8,28 NRC 419 0988); 53 Fed. Reg. 40,804 (1988); 54 Fed. Reg. 6463 0989) che pubhcanon of a nauce of seconsutuuan of the " rune" Board that specifically refers in its capuon to the *houficauen system" and camm the irnplicauan that tius a the only issue new before that Bosrd).
I 438 !
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authority of such Board to act on MAG EX-19 was not subsequently withdrawn.
Moreover, also contrary to the staff's seeming belief, once MAG EX-19 had been admitJed to this operating license proceeding by the Board with general jurisdiction, it was not necessary for the Attorney General to file the identical contention a second time. before another Licensing Board merely because the subject of the contention had both full and low power ramifications by reason of the Commission's regulations.n Any other conclusion would occasion the dual litigation of the same issue with possibly inconsistent results.
For their part, the applicants maintain that the "offsite" Board lacked "ple-nary" jurisdiction over MAG EX-19 when it admitted the contention. Our trar-ing of the jurisdiction of the Licensing Boards demonstrates that that belief is siinply wrong. On the date the contention was admitted, the "offsite" Board stood in the shoes of the original Board.15 For the foregoing reasons, directed certification is granted; the Licensing Board's May 22, 1989, oral ruling expunging a portion of contention MAG EX-19 is rewrsed; and the cause is remanded to the Licensing Board with instructions to reinstate that portion of the contention.
It is so ORDERED.
FOR THE APPEAL BOARD Barbara A. Tompkins
. Secretary to the Appeal Board U.ree 53 Fed. Reg 36,955 09EB)(codded in 10 Cf.R. 50A7(d)).
13.tse 54 Fee. Erg. 3xs 09MA 53 Fed. Reg. 40.804 (1988); 52 Fed Reg. 35,820 (1987); 52 Fed Reg 2966 (1987130 Fed ites 37,60$ (1985); 47 Fed. Reg 38,656 (1982); 46 Fed. Reg 59,667 (1981).
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Gj*ly; yip?p. ATOMIC SAFETY AND LICENSING BOARD PANEL i f) ac N[N(iAMhs.gh$lk Robert M. Lazo, 'Vice Chairman (hecutive)
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1 Cite as 29 NRC 441 (1989) LBP-89-12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD-Before Administrative Judges:
B. Paul Cotter, Jr., Chairman Glenn O. Bright Dr. Richard F. Cole in the Matter of Doeket No. 50 335-OLA' (ASLBP No. 88 560-01-LA)
FLORIDA POWER & LIGHT COMPANY (St. Luele Huelear Power Plant,
' Unit 1) May 9,1989 In this issuance, the Licensing Board sustains the NRC Staff's grant of a license amendment permitting an increase in the storage capacity of the St. Lucie Unit 1 spent fuel pool by rcracking the pool i'ito two discrete regions using new, high-density storage racks. - However, th: Board conditioned the license amendment to require evaluations of the Boraflex panels within 30 days of in-service surveillance test results indicating gama irradiation above a Board-specified threshold.
RULES OF PRACTICE: BURDEN OF PROOF in considering whether a license amendment granted by the NRC Staff may remain in effect, the Licensing Board must determine, for each of the factual issues remaining in dispute, whether the preponderance of the evidence supports the Licensee's position. See Pacif.c Gas and Electric Co. (Diatto Canyon Nuclear Power Plant, Units 1 and 2), ALAB-763,19 NRC 571,577 (1984),
review declined. CL1-8414, 20 NRC 285 (1984).
441 0
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- TECHNICAL ISSUES DISCUSSED The following technicalissues are discussed: Criticality excursions in spent l fuel pools: Spent fuel pool design (racks); Spent fuel pool design (Boraflex -
panels).
j , TABLE OF CONTENTS Page' I. ' INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
- 11. THE SPENT FUEL POOL CONFIGURATION -
AND OPERATION .................................... 444-I
- A. General Configuration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 B. .' The Reracked Spent Fuel Pool . . . . . . . . . . . . . . . . . . . . . . . . 445 111. DECIS ION . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . - 44 6 A. The Safety of Boraflex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 '
- l. The Use of Boraflex in High-Density Fuel S torage Racks . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 8 -
- l. 2. Problems with Boraflex - Shrinkage and the Formation of Gaps in Boraflex Panels . . . . . . . . . . . . . . 44 8
- 3. Results and Conclusions of Boraflex Study Programs . .-. 448 .
- a. - The Effect of Heat . . . . . . .. . . . . . . . . . . . . . . . . . . . . 449
~ b. The Effect of Radiation . . . . . . . . . . . . . . . . . . . . . . . 450
- 4. . St. Lucie 1 Rack Design and Fabrication Process with '
Respect to Avoiding Excessive Mechanictd Constraint . 451
- 5. The Potential Effects of Gap Ibnnation on Reactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
- 6. The In-Service Surveillance Program at St. Lucie 1 ....-452
- 7. Oat Corporation Racks as New and Urproven Technology . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 4 5 3 B. Erroneous Fbel A'sembly Storage and Criticality . . . . . . . . . 454 l
l IV. CONDITION .........................................458 V. OR DER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 9 1
g 442 1
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INITIAL DECISION (Authorizing Spent INel Pool Reracking)
~
L INTRODUCTION - 1 1
i Licensee, Florida Power & Light Company, applied for and received 2 a license 1
to rerack the spent fuel pool at its St. Lucie Unit 1 plant. Staff Exh.1, The -
reracking enabled Licensee to increase the spent fuel storage capacity from 728, !
to 1706 fuel assemblies by reracking the spent fuel pool into two discrete regions -
j
' using new, high-density storage racks.
- 1 Campbell Rich, a netirby resident ("Mr. Rich" or "Intervenor"), challenged the reracking, contending that specific aspects of Licensee's plan would not ad-equately protect the public health and safety. Of Intervenor's seven contentions originally admitted, LLP-88-10A,27 NRC 452 (1988), aff'd, ALAB-893,27 NRC 627 (1988), one was dismissed at the request of the Intervenor, and all of four and parts of two additional cont ntions were dismissed by this Board in a j
ruling on Licensee's motion for summary disposition. LBP-88-27,28 NRC 455 (1988).
In the modi 6ed contentions remaining at issue. Mr. Rich asserts that the ;
safety of the reracked spent fuel pool it not ensured because of uncertainties ,
in the effectiveness of Boraflex (a reactivity inhibitor), thc risk of an accident
}
resulting from the possible mishandling of fresh fuel rods, and the possibility .
j of a criticality accident in the absence of a neutron moderator in the spent fuel '
pool. The foregoing issues were tried in a 3-day hearing in the Martin County Courthouse, Stuart, Florida, beginning on January 24,1989.2 l
in considering whether the license amendment granted by the NRC Staff may remain in effect, we raust determine, for each of the factual issues remaining in dispute, whether the preponderance of the evidence supports the Licensee's j
position. See Pac #ic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-763,19 NRC 571,577 (1984), review declined, CL1 .l '
14,20 NRC 285 (1984). R)r the reasons set forth within, we find that Licensee is entitled to judgment on all these contentions subject to the condition we impose as to the use of Botaflex Anythir.g in the record not expressly addressed in this Decision is rejected as unsupported by the record as a whole or as unnecessary to reaching our Decision. l j .l 3 on adma 11,1988.pursuam an 10 C.F.R. I 50.91(a)(4) (1988),the Nuclear Regulaury Comnussion Staff made t a 6neng of"ine agmfiams.butard annaderauen, appmved the tigh density seracking, and asuwt Amendment 91 to ticanse W.DPR-67 authanzing the smdificauan to the spera fuel pock 2 The panies ccrnplated postheanng fihngs on March 27.1989. staff and Appbcant fdings suggested corrections to the transenpt. Those accepted by the Board are suschad hermo as Appendta A (not published).
f 443 I
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l II. Tile SPENT FUEL POOL CONFIGURATION AND OPERATION )
For clarity it is worth reiterating some aspects of an earlier description of the configuration and operation of the spent fuel pool (" pool") at issue in t proceeding. LBP-88-27, supra,28 NRC at 457 59. He poolis adjacent t I of the St. Lucie nuclear power plant which is owned and operated by Florida Power & Light Company on Hutchinson Island in St. Lucie County, Florida.
De St. Lucie plant contains two units and is sited 12 miles south of Fort Pierce on the east coast of Florida.
A. General Configuration The spent fuel pool is 37 feet long,33 feet wide, and 40 feet 6 inches d is constructed of 6-foot-thick reinforced concrete weus and a rein floor and foundation mat 9 feet 6 inches thick.3 The floor and ,
w stainless steel, %-inch thick on the floor and bottom of the walls and /16 inch i thick on the remainder of the walls, A separate but adjacent fuel cask storage area is located in the northeas corner of the spent fuel pool. It is 10 feet long and 12 feet wide. Its floor is a depression in the basemat which is 3 feet 6 inches deep, lined with 1-stainless steel plate. The walls are lined with %-inch stainless steel plate. T cask storage area is separated from the fuel storsge area by steel plate w 67/s inches thick,14 feet 9 inches high, and lined with %-mch stainless s This requires that the fuel cask must be raised above the top of the stor before the cask can be moved laterally. He spent fuel cask weight is-limited t 25 tons.
The fuel assembly stmetures containing the spent fuel to be stored in the pool are made of stainless steel and inconel. The fuel rod cladding is These materials were selected because of their resistance to harmful changes (1) high radiation fields in nuclear reactors; in their properties resulting frora:
and (2) their exceptional resistance to corrosion in high-temperature wat steam. De assemblies were designed and constructed to withstand the hig temperatures experienced in nuclear reactor vessels (500* to 640* F
("F") at the coolant outlet). Vessel or core temperatures are far more se those nonnally encountered in spent fuel pools which are well below the boi temperature of water,212*F at atmospheric pressure. The (Let assembli stored in storage racks resting under water on the bottom of the spent fite l
l 444
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B. The Reracked Spent Wel Pool As noted, the amendment authorized Licensee to increase the spent pool capacity from 728 to 1700 fuel assemblics. The old stcrage racks were removed. The pool, as reracked with new, high-density racks, is divided into two disesete regions, identified as Regions 1 and 2, each with its own specially designed racks. Region 1 contains four rack modules with capacity for 342 fuel assemblies. It is designed to receive and store new assemblies up to 4.5 weight percent U-235 or spent fuel that has not achieved adequate "burnnp" (i.e., U-235 depletion) for storage in Region 2. " Safety Evaluation by the Off,ce of Nuclear Reactor Regulation Rclating to the Reracking of the Spent Puel Pool at the St. Lucie Plant, Unit No.1 as Related to Amendment No. 91 to Unit 1 Facility Opemting License No. DPR-67, Flori'la Power and Light Company, Docket No. 50-335 " at 2 (hereinafts "SER-Amendment 91"). The foregoing document is attached to License Amendment 91 for the St. Lucic Plant.
The essential difference between Region 1 and Region 2 storage rack modales is that the Region I racks are provided with additional neutron-absorbing material in the form of Mraflex 50 as to control the Ngher potential reactivity that would reault with fresh nuclear fuel. The Region 1 racks consist of stainless steel, square cross-section tubes equipped with a sheet of Boraflex and cover plate on each of its four sides. The spacing between assemblies in Region 1 is 10.12 inches. SER-Amendment 91 at 2 and Appendix A at 39,40.
Region 2 contain:; thirteen rack modules with capacity for 1364 fuel assem-blics. The spacing octween asserr.blies is 8J,6 inches, and Boraflex panels are sandwiched between channels. The Region 2 channels do not have cover plates, and the Boraflex panels are held in place by the mating of adjacent channels.
Id., Appendix A at 41,42. Region 2 racks with their slightly closer spacing and about 50% of the Boraflex neutron shielding material contained in Region 1 racks are designed to receive and store spent fuel that meets tuel burnup require-ments. The burnup requirements depend upon initial U-235 concentration and l ure graphically displayed in Figure 5.6-1 of Amendment 91 to License DPR-67 at 5-6b. The racks, as installed, are designed to provide storage up to the year 2008, assuming full-core offload capability is maintained. SER-Amendment 91 at 2.
The basic source of hcat energy in the spent fuel pool is the decay heat emanating from the spent fuel. " Decay heat"is the term used to describe the heat generated by the continuing radioactive decay of fission prcducts within spent fuel assemblies stored in the Tent fuel pool after the fuel assembly contents have burned up to a certain extent in the nuclear reactor. The decay heat generated from such assemblies in the spent fuel pool diminishes very rapidly, but it is :
significant for an appreciable length of time. Decay heat is transferred to the l
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pool water and hence to materials in contact witn the water. Secot dary heat sources are the gamma rays and neutrons emitted by the stored spent fuel rods.
The spent fuel pool cooling system is a closed loop consisting of two
) centrifugal pumps and a tube-and-shell heat exchanger with a maximum capacity V6 of 34 million British thermal units per hour (MBtu/hr). The normal maximum heat load condition was calculated to be 33.70 MBtu/hr. SER-Amendment 91 at7,8.
III. DECISION A. The Safety of Boraficx We adopt Licensee's and Intervenor's agreed statement of the Boraflex !
issues,5 as follows:
CoweWion 1 The possible materials degradation and failu-e that might occur in Boraflex panels due to heat md radioactivity generated in the spent fuel pool have not been adequately considered or analyzed.
Comewion 6. 'lhe proposed use of Boraflex in the high-density spent fuel storage racks iesigned and 1. icated by the Joseph Oat Corporation is essentially a new and unproven technology.
Licensee's Proposed Findings of Fact and Conclusions of Law, $6 at 4; Intervenor's Proposed Findings of Fact and Conclusions of Law,16 at 2-3.
Licensee ano NRC Staff argue that the effects of heat and radiation on Boraflex are known and predictable and that there are no outstanding safety problems related to the use of Boraflex in spent fuel pools. Licensee presented three witnesses on this issue. Dr. Krishns P. Singh testified on behalf of Licensee. Dr. Singh is President cf Holtec Intemational, a consulting firm that handled the design, analyses, and licensing of the St. Lucie 1 spent fuel racks as a subcontractor to the tack manufacturer, the Joseph Oat Corporation. He described the specific structitral and mechanical design and fabrication of the 3 Cassentaan 3, which enganUy penamma no all rack and spent fuel cell matenals as well as the cancrete and steel of the fuel pool structure was the subject of a summary dispostuan manan which was granted as to all matenals cacept Borafica. See Memorandum and order dated october 14.1988,12P.88-27,syre. The mouan was demed as to Boranen because Licensee had not adequately demonstrated that there were no outstandmg safety pmblems regardmg the performance of Bornfles.14 at 467. Even though the moucri was derund, the Basrd accepted acms proposed findings suhrmited with tacensee's monon for summary dispostuan penaming to aSe appixatum of BaraGet at St Lucie. The accepted Dorafles miai.d fmdmgs imm the August 5,1988 fdtng (lacensee's sta:anent of Atznal lacss as to Whach These is No oenume lasue to Be Ifeard with Respect to Fandags Nas.1,7,9,10,12,15-20, and 62 67. As to Camention 6 Interwnar's Contemians) arc Cuntersmn 3.
Fmdings Ns.1,7.E, t2,16,20,22,27. and 29 ware accepted by the Board.14 at 467.473. These prmously 24-26.1989 heanngs in sceepted fandargs are canaidsmd together with the evidence neceived dunng the January Nan. Florida.
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i I St. Lucie I spent fuel racks so as to accommodate shrinkage of the Boraflex material in such a manner as to prevent loss of its effectiveness following I, irradiation in the spent fuel pool. Dr. Singh hiso testified on the results of the Boraflex acceptance testing program and subsequent testing programs.
Testimony of Dr. Krishna P. Singh on Contentions 3 & 6 (Singh on 3 & 6),
I following Tr.139. Dr. Stanley E. Erner, Chief Scientist far Holtec International testified as to the design of the spent fuel racks authorized by the spent fuel pool expansion amendment (Amendment No. 91 to DPR-67), issued March 11,1988 (sce note 1, supra); NRC criteria and guidance; and industry standards for spent fuel pool criticality analysis and their application to the analyses performed for St. Lucie 1. Dr. Wrner also addressed the calculational methods used in the criticality analysis and results ob'ained fc: the St. Lucie 1 spent fuel pool and the effectiveness of the Boraflex test'ng program with respect to its ability to identify Boraflex property changes that might affect the performance of the material as a neutron absorber. Testimony of Dr. Stanley E. Turner on Contentions 3 and 6 (7brner on 3 & 6), following 'IY.139. Edward J.Weinkam, 111, a Principal Engineer with the Florida Power & Light Company, testified as to the surveillance activities prescribed by the FPL program for testing and in. service surveillance of the Boraflex neutron-absorbing material contained in the St. Lucie I spent fuel storage racks. Testimony of Edward J. Weinkam, III, on Contentions 3 and 6 (Weinkam on 3 & 6), following 'IY.139.
The NRC Staff also provided three witnesses on this contention, NRC em-playees Drs. James Wing and Laurence 1. Kopp and Mr. Ed nond G. Tourigny.
Dr. Wing addressed the effects of radiation and hest on Boraflex. Dr. Kopp ad-dressed reactivity considerations attributable to potential or unforeseen Boraflex degradation. Mr. Tourigny's testimony described and evaluated Licensee's in-service surveillance program which was set up to detect unforeseen Boraflex degradation. Testimony of James Wing, Edmond G. Tourigny, and Laurence
- 1. Kopp on Contentions 3,6, and 7 at 1,6, and 8, respectively, following 'lY. I10 (Wing, Tourigny, and Kopp on 3,6, & 7).
All of the witnesses had appropriate credentials to support their expert testimony. Intervenor Campbell Rich presented no witnesses.
As described in our October 1988 Memorandum and Order, gaps in the neutron-absorbing sheets of Boratlex wert found at the Quad Cities Plant, a commercial reactor with high-density storaga racks similar in design to the St. Lucie I racks. LBP-88-27, supra. 28 NRC at 466 67. The Quad Cities reid St. Lucie 1 racks were manufactured by the Joseph Oat Corporation. Licensee argues that the problems identified at Quad Cities have been resolved and will not occur at St. Lucie. Id. at 456 et seq.
M 447 B: m
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- 1. The Use of Boraflex in Higlo Density Fuel Storage Racks Neunon attenuation in the St. Lucie I racks is accomplished through the combined action of borated water and a widely used neutron absorber material, i Boraflex. Commonly refermd to as a neutron " poison," Bomflex is an effective E' i ' entrapper of neutrom. It is produced by uniformly dispersing Boron carbide particles in a polymeric silicone encapsulant, which performs as the matrix clement. Singh on 3 & 6 at 7, 8. The neutron-absorbing element is Baron.
Since 1980, 85% of all high-density racks ordered by U.S. utilities have used Boraflex as the preferred" paisan" material for neutron absorption. His involved twenty-three separat: U.S. commercial nuclear power plants. Id. at 7,14 (Table L). The Joseph Oat Corporation was involved in the fabrication of almost half (eleven plants) of the spent fuel storage racks ussag Boraflex. Id. at 18 Table A.
- 2. Problerns with Boraflex- Shrinkage and the Formation of Gaps in Boraflex Panels Gaps or separations were found in the Ibraflex absorber materials used in the high-density spent fuel no age racks at the Quad Cities Plant, LBP-88-27, supra, 28 NRC at 466,477. NRC Information Notice No. 87-43, " Gaps in Neutron Absorbing Material in High-Density Spent Fuel Storage Racks" and " Board Notification regarding Anomplies in Boraflex Absorbing Material (BN-87-1I)" ;
a'erted licensees to potential problems with the use of Boraflex in 2he spent l fuel pools at the Quad Cities and Point Ecach facilities. Gaps in the Boraflex ;
plates were found at Quad Cities, and anomalies involving the discoloration and water permeation of Boraflex samples were found at Point Beach. Singh at 10. The Point Beach anomatics were ibund to be of no safety significance.
Id. The gaps found at Quad Cities (some up to 4 inches) were determined to be of potential safety significance. Id. More recently, gaps up to 1.4 inches were found in Boraflex panels at the Grand Gulf Station, Unit 1. Wing on 3 [
r at 3. Both Quad Cities and Grand Gulf are Boiling Water Reactors (BWRs) with nigh-density spent fuel storage racks asing Boraflex and fabricated by the Joseph Oat Corporation. Id., Tables .A and B at 17,19.
- 3. Results and Conclusions of Bornflex Study Programs A considerable amount of information pertaining to Boraflex performance has been accumulated ovet the last decade. As part of a larger program to qualify Borailex for use in spent fuel pools, a series of inadiation tests were conducted on small samples at the Ford Reactot at the University of Michigan at Ann Arbor.
Singh on 3 & 6 at 13-17. These entlier tests focused primarily on the neutron 448 L- - _ - - -
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0 Id. at 197. Following the discovery of gaps in Boraflex panels used in the Quad Cities spent fuel racks, additional testing was initiated to quantitatively determine l
radiation-induced shrinkage in Boraflex. Exh. 9; Turner on 3 & 6 at 10,13,
- 14. Also as a result of the identified Boraflex pmblems, the Electric Power Research Institute (EPRI) collected and analyzed data from utility surveillance l programs, test reactor irradiations, and the open literature to assess the effect of service environment in spent fuel storage racks on Boraflex. Exh.1. The evidence presented as to the effects of heat and radiation on long-term Boraflex performance is summarized below.
- a. The Effect of Heat Prior to accepting Boraflex as the neutron-absorber material, the NRC re-quired testing of this material under physical conditions that were more severe than the environment to which the material would be exposed in actual use.
Heat aging tests at 350 F and long-term (over 6000 hours0.0694 days <br />1.667 hours <br />0.00992 weeks <br />0.00228 months <br />) pressure bomb tests at 240 F in boric acid solution (3000 ppm) demonstrated Boraficx's stability under aggravated environmental conditions. Singh on 3 & 6 at 14; Exh. 4 at 7,
- 8. Measurement of the physical characteristics of the test specimens of Boraflex after 251 days indicated a dimensional change, i.e., shrinkage, nf less than 1%
(0.83%) and an average decrease in weight of the test sample of 0.03%. The rate of gas evolution was also measured and found to be less than 1.8 x 10-2 cubic inches per day per pound of Boraflex. Staff agreed that gas generation was not a problem. Wing on 3 at 2, 3, 6. See also Exh. I at 4-5,4-6. The spent fuel pool water at St. Lucie I hovers around 100 F, considerably below the test temperatures. Moreover, Boraflex is never exposed to temperatures in excess of 200 F anywhere in the St. Lucie spent fuel pool. Singh on 3 & 6 at 14.
Intervenor argues that the combined cifect of heat and radioactivity were not considered in the study programs and therefore the data are meaningless. While it is true that the combined effect of temperature and radioactivity is not reported on as such, the results of in-reactor Boraflex irradiation studies would include the effects of reactor temperature along with radiation effects. Wing, TY. 548, 549. Since the reactor temperatures are much higher in the reactor than in the spent fuel pool, synergistic effects of heat and radiation would be included in the reported in-reactor irradiation studies. Based on these studies and a review of the 240 F test data, the NRC Staff anticipates no significant heat-induced deterioration of the Boraflex material or its neutron-attenuation ability. Wing on 3 at 5,6.
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- b. The Effect of Radiation Upon irradiation, Boraflex undergoes shrinkage, becoming a hard, ceramic-Ri like material, with increased compressive strength and reduced ductility. Turner on 3 & 6, ff. TY.139, at 10. Gamma radiation induces cross-linkage of the polymer in Boraflex which leads to shrinkage. As the accumulated radiation !
dosage increases, cross-linking becomes saturated and no further shrinkage wili occur. The NRC Staff estimstes that saturation of cross-linking in Boraflex l j
occurs at the cumulative dose of 105 rads, the dose at which Boraflex attains maximum shrinkage. Wing on 3 & 6. ff. Tr. Il0,'at 3. Radiation exposure tests of Boraflex at total equivalcat doses of over 1022 rads (including 10" rads gamma dose) were performed at the Ibrd nuclear reactor at the University of Michigan. The Michigan tests support the saturation of cross-linking theory in that the results showed no sigmficant changes of Borallex shrinkage at cumulative radiation doses from 5 x 10' to 10$ rads. Id. The EPRI Study (Exh.1) also concluded that shrinkage stops when cross-linking saturates at a gamma exposure of about 10$ rads with projected maximum shrinkage at 3-4%.
Exh. I at 5-12,6-2.
The EPRI Study concluded that an essential factor in Boraflex gap formation and growth appears to be the existence of a mechanism for restraint of the Boraflex sheet. Id. at 514 through 5-18. In Point Beach, the sheets were held in place between a pair of V-shaped grooves in the stainless steel sheathing. When removed for examination, the Boraflex sheets were intact. It was concluded that the frictional restraint provided by the V-grooves was not sufficient to result in local stresses to cause the material to tear as the radiation-induced shrinking of the Boraflex proceeded. Id., Figure 2-6 at 2-9.
In those racks where gaps were observed, there was evidence of restraint through the use of adhesives or by mechanical means sufficient to cause the formation of tears or gaps. At Quad Cines, tne Boraflex panels were held in place during manufacture with an adhesive, Dow Silicone Sealant No. 999. Additionally, the Quad Cities racks employ the so-called " cruciform" construction, wherein angles are welded together along the edges in a tiMure to form a cruciform with the Borpflex panel contained between the faces of the angic. Cruciforms are attached to each other by welding along their ,ianction.
This welding must be done remotely and, as a result, the weld quality depends on the flatness and straightness of the cruciform surfaces. Singh at 10.
Licensee's witnesses concluded that it was the fabrication process that led to excessive restraint of the Boraflex panels, and their subsequent cracking and gap formation following shrinkage upon irradiation at Quad Cities. The " cruciform" construction method is used for rack module; for BWR plants. Id. at 11. NRC Staff stated that, ahhough it did not have sufficient information to determine conclusively what caused the gap formation, it postulated that because the 450 BR.T l
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1 Boraflex panels were physically restrained, gamma-radiation-induced shrinkage E, i caused the breakup of the panels and led to separation. Wing on 3 at 4. No gaps were observed in Boraflex panels used in pressurized water reactors (PWRs).
hiner, Tr. 367. Both Staff and Licensee witnesses concluded that gaps observed in Boraflex panels were the result of the material being physically restrained while being irradiated (Wing at 10; Exh. I at 5-16) and further testified that if the Borallex panels are free to shrink (absence of physical restraint) no gaps will be formed. Singh, Tr. 2%; Wing on 3 at 4; Kopp, Tr. 495; Wing, 'lY. 544, 545.
- 4. St. Lucie 1 Rack Design and Fabricas an Process with Respect to Avoiding Excessive Mechanical Constraint The racks fabricated for St. Lucie 1 are not of the " cruciform" design which is unique to BWRs. St. Lucie is a PWR, and the apparently excessive restraint of Boraflex inherent in the BWR rack construction has never been found in the PWR rack design used by the Joseph Oat Corporation. No glue was used in the fabrication of the St. Lucie 1 racks. The racks as fabricated for Region 2 of the St. Lucie I spent fuel pool permit unconstrained shrinkage movement of the Boraflex panels within the stainless steel jacket. The panels are more than 6 inches longer than the active fuel length and, if not restrained, can accommodate panel shrinkage of at least 4%. The exterior cells in Region 1 are also more than 6 inches longer than the fuel length and are able to accommodate shrinkage movement without external stress. The interior cells in Region 1 are (as a result of construction requirements) of a design that upon shrinkage of the panel would tend to promote f.he generation of multiple cracks or gaps. The interior cell construction nece tsitred spot welds at 6-inch distances along the edge of the stainless steel wr pr i(12 inches along each side staggered). On shrinking, the Borallex panels rt r encounter these spot welds, and local stresses might appear along the axial le gth of the panels. Singh, ff. Tr.139, at 11.
S. The Potential Effects of Gap Formation on Reactivity Licensee has evaluated the consequences of various scenarios involving the formation of gaps in the Boraflex panels and loss of borated water in the spent fuci pool. hrner on 3 & 6 at 7,17, and Table 1 at 19. Assuming 4% Boraflex shrinkage distributed in 0.5-inch gaps at 12-inch intervals, with gaps at the same elevation in all panels, the calculations show a maximum k, of 0.771 under normal operating conditions in Region 1 of the spent fuel pool. Adding to this, a loss of all borated water in the pool results in a k g, of 0.948, a value still within the acceptrble bounds for reactivity. Id. Calculations for Region 2, 451 B?m 1
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E where Licensee states that gaps are precluded because the panels are fully free to contract, show a k,, of 0.760 for normal operating conditions and a value of 0.944 for loss of all soluble borate in the fuel pool. Id.
The Staff sees no criticality concerns because the Staff's criteria for k,,(not greater than 0.95) would not be exceeded. Kopp, Tr. 535. Dr. Erner also calculated the reactivity coefficient for a condition of 4% shrinkage of the entire 144-inch panel (5.72-inch shnnkage) occurring at the most reactive position in the same axial plane in all the panels in Region 1 (5.72-inch gaps in all panets ,
at the same elevation) and with no Baron in the spent fuel pool water. Under !
these extremely unlikely conditions, he calculated a k,, of 0.992, a value below criticality. Wrner, Tr. 412. De k,, for the same 5.72-inch gap condition with water bomted at 1720 ppm would be considerably less. Id., Tr. 413.
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- 6. The in-Service Surveillance Program at St. Lucie i Long-term and synergistic effects of factors such as radiation, heat, and '
atmosphere are, at best, very difficult to determine in the short term. Itis therefore necessary to employ accelerated testing as a necessary technology to obtain data *. hat can be used with some confidence in an operational situation.
To this end, an in-service surveillance testing program will be conducted at e
St. Lucie 1. The program is designed to verify the physical characteristics and neutron-absorbing properties of tic Loraflex utilized in both Regions 1 and 2 of the St. Lucie 1 fuel storage racks.
Le Boraflex used in the surveifiance program is representative of the absorber material within the storage racks. It is of the same compositiort, produced by the same method, and certified to the same criteria as the production lot material. The sample coupons are the same thickness as the poison employed within the storage system, and approximately 5 inches in width, and 15 inches in length. Each Boraflex specimen is encased in a stainless steel jacket of an austenitic stainless steel alloy identical to that utilized in the storage racks, formed so as to encase the Boraflex material and fix it in a position and with tolerances sirnilar to the design utilized in the racks. De jacket permits wetting and venting of the specimens in a marmer similar to that which' occurs in the actual rack environment. Weinkam Testimony, ff. Tr.139, at 4 In the current program, two types of tests for each Region are p*anned: a long tenn test, with coupons sunounded by the same spent fuel assemblics during the entire irradiation period; and an accelerated test, vdth coupons -
surroundu! by freshly discharged spent fuel assemblics during each refueling. I he kmgaenn test coupon examination frequency is after nominal irradiation times of 90 days,180 days, I year,5 years,10 years,15 years,25 years, and 35 years. The g celerated test coupon examination frequency is after each discharge
! from the second discharge to ninth discharge after the rack installation. Id. r; 5.
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- The coupons will be carefully examined for the following proper:ies:
E'A 1.
2.
Visual exhmint. tion imended to reveal any surface or excessive edge deterioration that might appear and to povide supportirig information to assist in interpreting any degradation suggested by other measurements.
Dimensional measurements to provide a c.ontinuing measure of Doraflex shraskage. t The length measurement is of particular importance u an indicator of tne potential for gap formation in excess of that accommodated in the design.
- 3. Neuuan attenuanan measurements will be made for establishing areal density to con 6rm that boron is not being lost from the Bordles. Although previous irradiation tests indicate that boron is retained, this is perhaps the single most important measure of the ability of Boraflex to conunue to serve its irnended function.
- 4. Neutron radiography provides supporting information on neutron anenuation and is imended to reveal any non-uniformities in the baron distribution within tte Beraflex that might not te uncovered in the attenuation measurements.
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- 5. Shore A hardness measurements will be performed on a continuing basis. Although the Borallex is ec:pected to become fally hard in the first few eycles of irradiation, continued measurement is intended to uncover any softenmg or friability as an indicator of excrssive degradation.
- 6. Weight and specific gravity measurements are supporting measurements intended to reveal any significant loss of Bornflex material or the development of more open porosity than expected.
Turner Testimony, ff. ~n.139, at 16,17.
Although Boraficx is expected to satisfactorily perform its intended func-tion, the surveillance program ensures that any radiation effects beyond those expected and accommodated in the design will be detected well in advance (probably years) of the need for remedial action. This surveillance program is consistent with the program described by EPRI in its study with respect to all parameters relevant to the performance of Boraflex as a neutron absorber. Id. at 17.
- 7. Dat Corporation Racks as New and Unproven Technology Intervenor contends that because of the changes made in the fabrication process as a result of problems identified during in-service use of Boraflex in high-density racks, the technology employing the Boraflex is new and unproven.
Licensee and NRC Staff disagree. Both contend that bigh-density spent fuel racks with Boraflex panels as the neutron absorber have been in use since the early 1980s and are not unproven technical innovations or unproven technology.
Tourigny on 6 at 10; Singh on 3 & 6 at 4-7 and 17.
453 l
l
E The Joseph Oat Corporation ("the Corporation"), the St. Lucie I rack manufacturer, has had extensive experience with the fabrication of spent fuel pool racks. Prior to the early 1980s when the Corporation began using Boraflex in high-density fuel storage racks, the Corporation was involved in the fabricahon of "new fuel racks" which employ the same technological base as spent fuel racks. Additionally, the Corporation has decades of experience in the fitup, cleaning, and handling of stainless steel components, and in the welding processes used in fabricating from stainless steel in sheet metal form, such as in fuel storage rick applications. Singh on 3 & 6 at 4-6. Rigorous quality control procedures have been employed at Oat for decades. Their Quality Assurance Program has been reviewed by the survey team of the American Society of Mechanical Engineers (ASME) at 3-year intervals since 1969. The Corporation has passed all of its AShG surveys. Hundreds of pieces of Corporation equipment have been used in nuclear and nonnuclear plants for years. There is undisputed testimony in this record that not a single case of equipment failure leadmg to pir.nt shutdown has been ascribed to Corporation-supplied equipment.
Id.
The Board agrees with Licensee and Staff that utilization of high-density racks designed and fabricated by the Joseph Oat Corporation is not utilization of a new and unproven technology.
B. Erroneous Fuel Assembly Storage and Criticality We adopt Licensee's and Intervenor's agreed statemen; of the Contention 7 issues' as follows:
Con ention 7
- 1. The mechanisms which prevent the erroneour insertion of a fuel assembly ine a storage cell such that the prescription of Standard Review Plan ("SRl**) Section 912, Part III2 b., that it not t.e possible for "a fuel assembly . . . (to) be inserted anywhere other than a design location"have not been d:monstrated; and
- 2. It has not been shcen why criticality will not occur in the spmt fuel pool in the absence of a moderator.
Standard Review Plan, 6 9.1.2, Part II, 2.b requires that "[t]he design of the storage racks is such that a fuel assembly cannot be inserted anywhere other than in a design location." Tlw St. Lucie pool racks are divided into two regions, Region 1, in which any of the St. Lucie fuel assemblies can be stored, d in our october 14. 1988 Mernerandum and Order Rulmg on Madorm rar Summary Dupusidan, we gramed sumrr/.ry dwpositian of Cretendon 7 wuh the excephon of the two Wuca dscussed in this decision as to which there remamed a dispute of ract. LBP 88 27, supra,28 NRC at 473 75.
454 l
i
including fresh fuel, and Region 2, in which only fuel that has reached the burnup
, requirements set forth in the " nitial Enrichment vs. Burnup Requirements for
) Storage of Fuel Assemblics in Region 2" curve in Technical Specification 5.6.1.b.
j Fig. 5.6-1. Tourigny Testimony, ff. Tr.110, at 13.
1 The racks themselves are design?.d such that it is physically impossible to insert a fuel assembly in any place other than the storage cells. It is, however, i possible to insen an assembly with less than the requisite burnup 'into Region l
- 2. It is also physically possible to lower a fuel assembly into the shipping cask area and a strall area between the east wall of the pool and rack modules E, l and H There are no racks in those areas. Weinkam Testimony, ff. Tr. 21, at 3
l 3-4; Tourigny Testimony, ff. Tr.110, at 12-13. ;
I The Standard Review Plan (SRP) requires the Licensee to develop and employ a system that prevents improper placement of a fuel assembly through the use of administrative controls, physical restraints, or by a combination of both. SRP 9.1.2, " Spent Puel Storage," NUREG-0800. Tourigny Testimony, ff. Tr.110 at 12.
NRC Staff guidance, however, allows for administrative controls, utilizing written procedures, to prevent the misplacement of fuel in the pool. (See Tbrner on Contention 7, ff. Tr. 21, at 17-18; Tourigny on Contention 7, ff. 7Y.110, at 13.) The Licensee's fuel-handling methods are by administrative control.
Licensee described its methodology as follows:
Each fuel assembly arrives at St. Lucie I with a unique senal number which is engraved on it. De serial number remains visible regardless of storage location within the pool to facihtate identification. %e Licensee tracks the location of a fuel assembly throughout its life by its serial number.
Nel is moved to, and insened into, a spent fuel rack cell location with a spent fuel puol machine whidi consists of a rolling bridge which spans the pool. and a suel hiting device. he fuellifting device may be positioned by a spent fuel rnachine operator over any rack cell location in Regions I or 2. Each cell location within the racks is identified by a region. unique inden system, which uses a grid for Region I and another for Region 2 Nel assemblies are tracked within the pool by maintaining records of their serial numbers on maps indicating the all locations and associated alpha numeric indes codes where the assembties are located. lacation of new and burned fuel assem&es, stored in the spent fuel racks, are tracked by serial numbers whidi are reported in fuel status report records and spent fuel pool fuellocations maps. De transfer of assemblies to predetermined locations ir conducted by an NRC-licensed operator under the dinction of the licensed Control Room operator.
Rdlowing refuehng. an independent verification (by a remotely castrotled camera) of the location of the fuel assemblies in the reactor core and the spent fuel pool is conducted, and fuel status records are updated to reflect any assembly location dianges. In addition, an audit of the spent and new fuelin storage must be completed at least atmuntly in accordace l with lo CF.R. Pan 75.
Weinkam Testimony, ff. Tr. 21, at 3-7.
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'l The Board finds that the foregoing procedures and restraints used in the handling of. fuel assemblics in the spent fuel pool are adequate to provide , ,.4 Ocasonable assurance that fuel will be stored in the prescribed areas of the yt; pool. The procedures satisfy the guidelines of SRP 9.1.2 and will ensure against V improper storage of fuel assemblies.8 This issue under Contention 7 is dismissed. ,
The second issue under Contention 7 to be resolved arises out of Licensee's statement, in several places in its motion for summary disposition, that in the @%
absence of a moderator it would not be possible for the St. Lucie fuel assemblies g;;
to form a critical mass in any configuration. The Intervenor questioned this j4
. statement and pointed out that a Dr. Slotin was fatally injured in an incident that resulted in a " dry" criticality at Los Alamos in 1947, and that atomic weapons achieve criticality with no moderator present.
Licensee and Staff dispute Intervenor's assertion and deny the relevance of .
the two examples he citcs. Licensee's witness, Dr. Turner, testified to Licensee's a undestying criticality theory as follows:
%e term " fissile material" refers to material the atoms of which are capable of being .
- split or fissioned with the attendant production oflarge quantides of heat energy (the useful product from the reactor) upon the capture (absorpdon) of neutrons. ne primary fissile -
materialin new fuel assemblies of most nuclear power reactors, including St.1.ucie 1, is a nuclide of uranium called uranium-235. In natural uranium, the uranium.235 is present at a concentrationlus than 1% by weight, with almost all of the remainder being the uranium-238 nuclide. To be usei 1 in a light-water nuclear power reactor, natural uranium is enriched in uranium-235. The nuelcar fud utilized at St. Lucie 1 may be enriched up to 4.5% by weight of uranium 235, with almost all of the remaining 95.5% being the uranium-238 nuclide.
In general, when a neutron is absorbed by uranium-235, there is a high probability that uranium-235 will undergo fission, resuhing iu the selease of energy, fission products and more neutrons. nese neutrons,in turn, :an (1) be absorbed by uranium-235 or other fissile nuclides, (2) te absorbed by uranium-238 nuclides, sesuking in vinually no additional Ession, -
(3) be absorbed non-productively by non-fis;ile materials called
- poisons"(resuhing in no -
addidonal fission), or (4) escape without being absorbed (ie., leakage, whidt also resuhs in no additional fission).
As a practical matter, not all neutrons released as a resuh of fission will cause additional fissions. IJranium-238 nuclides, poison materials and leakage inhibit the fission process by reducing the number of neutrons available to cause fissions. If fewer neutrons are being produced as a 1csult of fission than are leaking and being absorbed, the fission process will not sustain itsel*; this condition is called *subcrincality." In contrast,if the rate of neutron production as a resuh of the fissian process is equal to the rate of neutran absorpdan and leakage, the fission process will sustain itself, and the condidon is referred to as *crincal."
Sh is also perurant to note that, even if a fresh fuel assembly were to be nuslocated widun the starsas pool in the wom possible locauan, the mamunum kegy would annam below 0.8. taking imo account the presence of soluble bomn an the pool water. Tumer en Comanuan 7, ff. Tr. 21, at 18-19. Turner. Tr. 92-93. I won an the absence of ?j soluble boren, the misinsertian of a fresh fuel assembly imo a Region 2 locauan would not result in enucahty. l4 Tumer. Tr. 92 93. Muluple nusinscruons would be necessary. (14) With the prescribed soluble borun in the If pool enucahty would not occur even if fresh fuel were misinsened imo each and every Region 2 cell. Turner.
Tr. 55 57.
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l E he term
- effective multiplication faoor"is defmed as the ratio of the number of neutrons per unit of time produced in the fission process,to the number of neutrons per unit of time absorbed and escaping. he effective multiplication factor, commonly called k-effective (or k,,),is a measure of the abihty of a system to sustain a fission reaction. Criticality occurs whenever the effective mu' triplication factor reaches or cacceds a vaaue of I o because at least as many neutrons are being produced as are being lost by absorption and leakage. For a k,,,less than 1.0, the fission inte cannot be sustained. The margin below a k,gof 1.0 is the safety margin to enticality, and this suberitical margm is the difference between a k,,
I j
of 1.0 and the k,gof a given system. j hmer Testimony, ff. Tr. 21, at 5-7.
U-235, the reactive isotope of uranium used in the reactor system, is a poor absorber of the" fast" neutrons produced in the fission process, but is a very good absorber of " slow" or " thermal" neutrons. U-238, which comprises the bulk of the uranium in the fuel, is, conversely, a very good absorber of fast neutrons but a poor absorber of thermal neutrons. Unless some mechanism is brought into play that will slow down the fast neutrons to allow neutron absorption by U-235, the fraction of neutrons absorbed by U-235 is small compar d with the absorption by U-238? 14. at 19-20. This requires the presence of a moderator.
A moderator is a material consisting of light elements which scatter and slow down the neutrons, but which do no' absorb many of the neutrons in the process.
hmer, ~1r. 60. There are only a few good moderators. The only ones that are in common use are water (hydrogen), heavy water (deuterium), graphite, and 1 beryllium. De moderator used in the St. Lucie reactor and fuel pool is light water. Id., D. 60 62.
In:crvenor attempted to establish that if the fuel melted and slumped to the ,
floor of the pool th41 there would be suff.cient zirconium, air, wood, and concrete l in the mass to act as moderators. Both Licensee's and Staff's witnesses denied this, saying that while there might be some small moderation by these materials, in practice it would be negligible and insignificant. Id., Tr. 62; Kopp, Tr.116-19.
Intervenor also questioned the amount of plutonium in spent fuel. Dr. Turner replied that the total amount of fissionable material in spent fuel, including both U-235 and the fissionable plutonium isotopes was about the equivalent of fresh fuel enriched to about 1.7% hrner, Tr. 67. This is far less reactive than fmsh fuel. Intervenor then asked about the total weight of uranium oxide, plutonium, fission products, and zirconium in tha pool. Licensee's witness had no figures, but stated that the total amounts we* felevant, as in his calculations he assumed an infinite mass as a matter of conservatism. 7he conservatism in assuming inLaite mass is that neuten leakage, i.e., a net neutron loss, is ignored.
Id.,Tr.66.
- !n order to sunphry ons Ascussion, the pasartshay af escspe or nonfissian capture of neuunns, neather of which l
pmduce new neutrar.s. is ignored.
457 l
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As a basis for his thesis that a moderator was not necessary for criticality, ,
Intervenor asserted that several incidents had occurred where criticality was !
achieved without a moderator. Intervenor's Response to Licensee's Motion for Summary Disposition of Intervenor's Contention 7,19. One, a criticality accident at Los Alamos in 1947, involved experiments with a supercritical mass of highly enriched plutonium metal in a form capable of attaining " dry" criticality. Erner Testimony, ff. Tr. 21, at 21, 22.
That material has no relationship to the low-enriched St. Lucie 1 uranium fuel. 1 Similarly, the fact that nuclear weapons do not use a moderator is irrelevant.
Weapons use either highly enriched U-235 or plutonium metal, which is not the case at St. Lucie. Three Mile Island and Chernobyl, both mentioned by the Intervenor, were moderated, the former with water and the latter with graphite, and do not apply to Intervenor's assertion that criticality could occur in the St. Lucie spent fuel pool if no moderator were present.
The Board has reviewed the entire record on the criticality issue and has found no basis to question Licensee's position. De Staff agrees with Licensee that in a dry fuel pool there is no danger of accumulating a critical mass of fissile material. We therefore find that Licensee has met its burden of proof in ;
this matter and find in favor of Licensee on Contention 7.
He Board finds that Licensee has met its burden on each of the admitted contentions, and operation of the spent fuel pool as modified is and would be in compliance with the Rules and Regulations of the Commission.
IV. CONDITION However, there is one aspect of the application which was the subject of much discussion at the evidentiary hearing and by the Licensing Board followir'g the hearing. That is the matter of the " controlled gap formation" in the interior Boraflex panels in Region 1. Licensce's expens argue that the constrt'etion technique used in Region 1, while required because of the manner in which 1 the cells are held together, is ruch that if the Boraflex panels are subjected to gamma radiation sufficient to cause shrinkage and sufficient stress at the weld connection points, they would selectively break at the weld point locations.
Weld connections are located at 12-inch spacing staggered along each side of the Boraflex cover panel (6-inch vertical spacing staggered along the panel kagth). Licensee's witnesses contend that the panel, if s.tessed sufficiently to cause rupture, would tweak at the weld connection on 6- or 12-inch intervals.
i Assuming 4% shrinkage and stress relief at 12-inch spacing, they calculated a gap size of 0.5 inch. Singh, ff. Tr.139, at lit Turner, ff. TY.139, at 19.
The NRC Staff did not address this aspect of Licensee's design. Written and m oral testimony by Staff wimesses stated that no mechanism for gap formation M ,l .
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h 1 existed and therefore no gaps should be formed in the Boraflex panels. This
( Staff assenion was reiterated on the stand even after the rack designers described A s
- g the system for controlling the location of gaps in Region 1. Wing, ff. R.110,
? . g,. at 4; D. 544-45.
Mg $ ne controlled gap system is unique and has not been tested. As far as the j p Board is aware, there is only one practical way to determine the effectiveness .
7(
p{4 of the Licensee's method for controlling gaps and that is to measure the ability of the Boraflex panel to absorb neutrons by a technique known as blackness
.'l
'( ! e testing." Both Licensee and Staff argue that the predicted 0.5-inch gaps would
- ,-] not be detectible by blackness testing and therefore it is not necessary. Tourigny,
?
U Tr. 552; hmer, Tr. 32122. Licensee further argues that the Region 1 pool h@4)y. ]
7; is generally not subject to irradiation. Spent fuel is normally discharged to Region 2, while Region 1 is used to store fresh fuel prior to refueling and A
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} !; for contingencies such as the possible need for a full-core offload. Weinkam, Tr.140; wrner, 'IY. 350. Because of the normal use of Region 1, shrinking g
@ and subsequent gap formation should thus be nonexistent or minimal in the
". 3,b . M Region I racks. In the Region 2 racks Boraflex is unconstrained and no gapping Myh$ y d' should occur. Singh, ff. Tr.139, at 11. The one exception which does result in some gamma irradiation of Region I cells occurs because of the in-service
%], C surveillance program which Licensee has undertaken. This program includes
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r two cells in Region I with separate sets of sample coupons. hrner, ff. Tr.139, at 15-16; Weinkam, ff. Tr.139, at 5.
l d 1p 7 Ji9 ne Board agrees that, without gamma irradiation, the Boraflex in Region Q 1 should not form gaps. The Board a'so agrees that even with irradiation the
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~ T,\ g . o unconstrained exterior Boraflex pr.nels in Region 1 and all the panels in Region 2 sl.ould not form gaps. Gamma irradiation of the interior panels in Region 1,
%f g however, poses a different situation.
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We, therefom, impose the following condition on the license amendment:
Q;d . ({ In the event that any of the Region 1 Bora!!cx test coupons are found to be ykl@b.k,A},q /qd subjected to gamraa irradiation equal to or greater than 1 x 10' rads, Licensee f., , is directed within 30 days to prepare a study program to be approved by NRC
'3j. y y Staff and performed by the Licensee to assess the effect of the irradiation on the ggOg y integrity of the Boraflex panels. De study program should include blackness
, +.f testing or a state-of-the art equivalent approved by the NRC Staff.
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V. ORDER
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For all the foregoing reasons and upon consideration of the entire record in f this matter, it is, this 9th day of May 1989, ORDERED:
%: 1. That judgment is granted for Licensee on the matten remaining at issue
.,4)1 { in Contentions 3,6, and 7, except as to the condition imposed in 13, below;
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- 2. That License Amendment No. 91 to License No. DPR-67, issued by the NRC Office of Nuclear Reactor Regulation on March 11,1988, shall remain in full force and effect as issued;
- 3. That in the event that any of the Region 1 Boraflex test couports are , _,
subjected to gamma irradiation equal to or greater than 1 x 10' rads, Licensee is directed to prepare within 30 days a study program to be approved by the NRC ,
Staff and performed by the Licensee to assess the effect of the i radiation on the f '
integrity of the Boraflex panels. The study program should include blackness ,
testing or a state-of-the. art equivalent approved by the NRC Staff; and
- 4. That, pursuant to 10 C.F.R. 6 2.760 (1988) of the Cotamission's Rules J
of Practice, this Initial Decision shall become effective immediately. It will consti:ute the final decision of the Commission forty-6ve (45) days from the date .
of issuance, unless it is appealed in accordance with 10 C.F.R. 6 2.762' (1988) or the Commission directs otherwise. See also 10 C.F.R. {$ 2.764, 2.785, and k .i 2.786 (1988).
ATOMIC SAFETY AND k LICENSING BOARD
- f N -
B. Paul Cotter, Jr., Chairman .
ADMINISTRATIVE. JUDGE Glenn O. Bright ADMINISTRATIVE JUDGE y
Dated at Bethesda, Maryland, h this 9th day of May 1989. jl 1
[The Appendix has been omitted from this publication but can be found in the NRC Public Document Room 2120 L Street, NW, Washington, DC 20555.]
f t
i 7 Any pany may appeal from this Decision 'o flhng a notice of appest within ten (10) days after device d this Imtial Dec siast Pursuam in to CI A 12.762 (1988). each appcDant must 61e a tenef supporting its position on apneal widun thiny (30) days after famg its notice of appeal (f arty (40) days if es staff a the appcHant). Wadan thiny 00) days after the pened has expmd far the rding and service of the bnefs of au sppstants (forty (40) days "
in the cas of the staff), a pany who a not an appeDant may file a brief an suppan of, or in oppositaan to. the appeal of the other pany. A respondmg pany shall file a single suspansave bnef only, regardless of the number j of appenant's bnefs fdod.
'Dr. Cole participated fully in prepanng this Decusan. concus in the rauh. but was not available to sign it at j issuance. }
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Cite as 29 NRC 461 (1983) LBP-89-13 UNITED STATES 01- AMERICA g.g . NUCLEAR REGULATORY COMM!SSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Charles Bechhoefer, Chairman Dr. James H. Carpenter Gustave A. Linenberger, Jr.
In the Matter of Docket No. 50-271-OLA 2 (Testing Requirements for ECCS and SLC Systems)
(ASLBP No. 88 567-04-OLA)
VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station) May 23,1989 The Licensing Board grants a joint motion by the Interveners and the Applicant to withdraw the only contention in the poceeding and to dismiss the proceeding.
MEMORANDUM AND ORDER I l (Dismissing Proceeding) 1 This proceeding concerns a proposal by Vermont Yankee Nuclear Power Cor-poration (Applicant), dated December 7,1987, to modify certain of the technical specifications applicable to the Vermont Yankee Nuclear Power Station, a boil-l ing water reactor located in Vernon, Vermont. The proposed changes concern l
the surveillance and testing requirements applicable to certain equipment on the reactor. j l )
461 1
l l
E In response to a notice of opportunity for bearing dated January 19,1988 (53 Fed. Reg. 2114 Qan. 26,1988)), two petitioners (the State of Vermont and the Commonwealth of Massachusetts) filed requests for a hearing and petitions to intervene. By Memorandum and Order Intervention Requests and Prehearing Conference), dated May 24,1988 (unpublished), we ruled that the two petitioners had st;nding to intervene and scheduled a prehea'ing conference to consider contentions. Ibliowing the conference (at which the opportunity for oral limited appearance statements pursuant to 10 C.F.R. 5 2.715(a) was offered), we accepted a single joint contention proffemd by the two petitioners.
We also outlined several substantive inatters relevant to that contention v hich we believed should be addressed on the record of the proceeding. Prehearing Conference Order (Rulings on Centention and Schedules), dated July 18, 1988 (unpublished).
Following that Order, the parties participated in extensive discovery. At this time, we are awaiting issuance of the Staff's Safety Evaluation Report (SER) and Environmental Assessment. By a filing dated May 15,1989, however, the two Interveners and the Applicant filed a joint motion to withdraw the contention and to dismiss the proceeding.
We are aware of no reason why we should not grant the motion. Because of the safety questions that we raised at the prehearing conference, however, we would appreciate the Staff's serv;ng on the Board a copy of the SER when issued. This request is not to be construed as a retention of jurisdiction by us over the proceeding (although we of course have available nonadjudicatory methods for expressing our view on substantive matters, if warranted).
Based of the foregoing, the joint motion to withdraw the only contention in this proceeding and to dismiss the proceeding is hereby granted and the proceeding is dismissed. This Order is effective immediately. In accordance l
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((g f with 10 C5.R. 652362 and 2.785, this Memorandum and Order may be 3 appeled by any party to the Atomic Safety and Licensing Appeal Board.
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THE ATOMIC SAFETY AND
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LICENSING BOARD
, .,d-. +j
/ $$ in Dr. James H. Carpenter -
'dk ADMINISTRATIVE JUDGE
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Gustave A. Linenberger, Jr.
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' ADMINISTRATIVE JUDGE M{
- Charles Bechhoefer, Chairman dg ' gj ADMINISTRATIVE JUDGE
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4 Dated at Bethesda, Maryland,
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