ML20141N198

Memorandum & Order Denying & Dismissing,In Part,Motion to Reopen Record to Submit New Contentions.Dissenting Opinion of WR Johnson Encl.Served on 860228

ML20141N198
Person / Time
Site:	Perry
Issue date:	02/27/1986
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	OHIO CITIZENS FOR RESPONSIBLE ENERGY, SUNFLOWER ALLIANCE
References
CON-#186-252, CON-#A86-252 ALAB-831, OL, NUDOCS 8603040471
Download: ML20141N198 (10)

Text

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' t' / UNITED STATES OF AMERICA

> NUCLEAR REGULATORY COMMISSION 00jgETED 1 ATOMIC SAFETY AND LICENSING APPEAL EOARD 2

~1k5 FES 28 h0:41 4

Administrative Judges:

Alan S. Rosenthal, Chairman 'O'a h!27, 1986 i Dr. W. Reed. Johnson Fp4ALAHg31)

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Howard A. Wilber i

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In the 3atter of ) ElYED FEB 28 7986 -

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, CLEVELAND ELECTRIC ILLUMINATING ) Doctet Nos. 50-440 OL COMPANY, ~ET AL. ~

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Gerry Nuclear Power Plant, ) i Units I and 2) )

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4 Susan L. Hiatt, Mentor, Ohio, for the intervenor, Ohio $

i Citizens for Responsible Energy. ,

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f Jay E. Silberg and Harry H. Glasspiegel, Washington, .

D.C., for the applicants, Cleveland Electric Illuminating Company, et al.  :

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, Colleen P. Woodhead for the Nuclear Regulatory j Cotytis .; ion sta f f,  !

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', MEMORAUDUM AND ORDER -

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] This operating license proceeding involving the Perry ,

nuclear facility is currently before us on appeals by .

intervenora Ohio Citizens for Responsible Energy (OCRE) and  !

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Sunflower Alliance from the Licensing Board's concluding I

L partial initial decision.1 OCRE has now rioved to reopen the  ;

record for the purpose of permitting its submission of new 4

l contentions. These contentions relate to two matters that ,

l See LEF-85-35, 22 NRC 514 (1985).

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2 were not the subject of prior Licensing Board consideration

(1) the deletion of elements of the applicants' fire i protection program from the facility's technical specifications; and (2) the applicants' request that they be permitted to operate the facility for protracted periods at 70% of rated power with only one of two primary coolant recirculation loops operable.2 OCRE maintains that it has satisfied the well-established tripartite test governing the reopening of an j

evidentiary record to consider new evidence:

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(1) Is the motion timely? (2) Does it address significant safety (or environmental) issues? (3)

Might a different result have been reached had the 4

newlyprofjeredmaterialbeenconsidered i initially?

2 Motion to Reopen the Record and to Submit Now Contentions (December 12, 1985) (" Motion"). On February 3, 1986, OCRE filed a second motion to reopen the record, based upon the earthquake that occurred in the vicinity of the Perry facility a few days earlier. That motion remains under consideration and will be decided in a subsequent order.

3 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 i (1980) , cited with approval in Metropolitan Edicon Co.

(Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 285 n.3 (1985). The Commission's use of this test has received judicial approval. Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720, 732 (3d Cir. 1985), petition for cert. filed sub nom., Aamodt v. NRC, 54 U.S.L.W. 3463 (U.S.

3 Dec. 18, 1985) (No. 85-1095), citing San Luis Obispo Mothers for Peace v. HRC, 751 F.2d 1287, 1316-18 (D.C. Cir. 1984),

vacated in part and reh'q en banc granted on other grounds, 760 F.2d 1320 (1985).

i' (Footnote Continued) i l

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3 In opposing 'c ne motion, however, both the applicants and the F

NRC staff insist that the test has not been met because the matters on which reopening is sought lack safety significance.4 For the reasons that follow, the motion is denied in part and dismissed in part.

A. Fire Protection. Each operating nuclear power plant is required to have a fire protection plan (i.e.,

program) that satisfies General Design Criterion 3 in Appendix A to 10 CFR Part 50.5 OCRE does not dispute that the Perry facility has such a program. Nor does it ,

challenge the adequacy of any particular provision of the program. Rather, OCRE seeks to reopen the record to litigate what is essentially a legal question having nothing to do with the quality of the fire protection arrangements (Footnote Continued)

Because its motion seeks to inject new issues into the proceeding, OCRE also addressed the five factors set forth in 10 CFR 2,714 (a) (1) , which control the acceptance or rejection of late-filed contentions. See Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983). As will later appear, however, it is unnecessary for us to consider here the sufficiency of OCRE's showing on those factors.

See Applicants' Answer to OCRE Motion to Reopen the Record and to Submit New Contentions (December 30, 1985);

NRC Staff Response to Motion to Reopen the Record Filed by Ohio Citizens for Responsible Energy (January 2, 1986)

(" Staff Response") . The applicants, but not the staff, also argue that the motion was untimely. Intervenor Sunflower Alliance did not respond to the motion.

5 See 10 CFR 50.48 (a).

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4 for Perry: whether Commission regulations require that all elements of a facility's fire protection program be l incorporated in the technical specifications for that I

facility. The question arises here because, in a November 29, 1985 letter to the lead applicant, the staff agreed that some of the Perry fire protection program elements could be deleted from the technical specifications and, "in lieu thereof," documented in the Final Safety Analysis Report (FSAR).6 According to OCRE, this consent violated the provisions of 10 CFR 50.36 (c) (2) with respect to the required content of technical specifications.

The short answer is that GCRE's interpretation of section 50.36 (c) (2) is wide of the mark. Not only does the See letter from Walter R. Butler to Murray E.

Edelman, reproduced as Attachment 3 to OCRE's motion. The letter went on to state that the administrative control elements of the fire protection program were to be retained in the technical specifications.

Motion at 1-2. Section 50.36 (c) provides that

, technical specifications are to include items in several enumerated categories. Por its part, subsection (2) is concerned with one of those categories: limiting conditions for operation. It explains that such conditions are the lowest functional capability or l performance levels of equipment required for safe l operation of the facility. When a limiting l condition for operation of a nuclear reactor is not met, the licensee shall shut down the reactor or follow any remedial action permitted by the l technical specification until the condition can be met. . . .

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section make no specific reference to fire protection programs,.but, more important, the Statement of 1

Consideration accompanying its revision in 1968 contains a  !

clear indication of a Commission purpose to limit the scope I of operating license technical specifications to "those items that are directly related to maintaining the integrity of the physical barriers designed to contain radioactivity."8 Manifestly, a fire protection program is not such an item.

i We need only add that, even were the application of section 50.36 (c) (2) to. fire protection programs a closer question, we would still be disinclined to reopen the record ,

j on that question. For, in all events, OCRE has failed to 4

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33 Fed. Reg. 18,610 (1968). See, in this connection ,

Portland General Electric Co. (Trojan Nuclear Plant),

ALAB-531, 9 NRC 263, 271-74 (1979) ("as best we can discern i it, the contemplation of both the [ Atomic Energy] Act and  ;

the [ Commission) regulations is that technical specifications are to be reserved for those matters as to which the imposition of rigid conditions or limitations upon i reactor operation is deemed necessary to obviate the

! possibility of an abnormal situation or event giving rise to an immediate threat to the public health and safety"). 1 It is worthy of passing note that, in a subsequent l l discussion of certain proposed changes to its regulations  !

! pertaining to technical specifications for nuclear power ,

reactors, the Commission stressed the distinction between

functions considered of "immediate importance to safety" and

"[o]ther functions, such as those associated with the

! mitigation of the effects of natural or man-made phenomena i (fires, floods, earthquakes, etc. ) . " 47 Fed. Reg. 13,369,  ;

13,371 (1982). 1 s

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demonstrate that the exclusion of certain portions of the Perry fire protection program from the technical specifications has serious safety implications. Nor could it. The staff informs us that, consistent with a recommendation of the NRC Chairman, it has imposed an actual license condition requiring Unit 1 of the Perry facility to comply with its fire protection program. Thus, there is I

no room for any claim that the enforceability of the applicants' commitment to carrying out the program has been impaired by the transfer of portions of it from the technical specifications to the FSAR.

, B. Single Loop Operation. The other contentions that OCRE would inject into the proceeding at this late date are rooted in the applicants' request that they be permitted to operate the Perry facility at up to 70% of rated thermal power with only one of the two primary coolant recirculation loops operable. In OCRE's view, significant safety problems will attend upon a grant of the request.

10 Staff Response at 7.

11 I* s of littic moment here that, as the staff's response observes (ibid.), fire protection requirements have been included in the technical specifications of other operating licenses. For it does not follow from that fact that such inclusion is required by Commission regulation.

Cf. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-824, 22 NRC 776, 781 (1985).

7 The staff, however, tells us that it has not as yet

" evaluated the request, nor reached a conclusion on its merits."12 The staff further notq that in no event will any low-power license that mayjbecissued for Perry permit single loop operation (i.e., should the applicants'. request be granted, only the. full-power license will be affected).13 Clearly, should the staf f eventually turn down the applicants' request,I4 OCRE's concerns respecting single loop operation will be totally academic. This being so, no good reason appears for deciding, in advance of staff action on the request, whether the record should be reopened to ventilate those concerns -- i.e., for rendering what would 1

be essentially an advisory opinion on the merits of OCRE's contentions embodying the concerns. Accordingly, we dismiss those contentions at this juncture, without prejudice to i

12 Staff Response at 8.

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Id. at 8-9. Because, as of this writing, Perry has not received even a fuel loading authorization, the possible issuance of a full-power license is not imminent and thus the staff is not under severe time pressure to act upon the 1 request. Indeed, in response to a telephone inquiry, d

counsel for the staff advised the Secretary to this Board l that it will likely be several more months before a decision is reached. According to counsel, the staff will require additional information from the applicants, at least some of which will not be available until after the applicants 1 receive a low-power license for Perry.

1 14 It is by no means certain that the request will be honored. Some similar requests have been granted and others denied. Id. at p. 9, p.8.

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their possible renewal if and when the staff allows singie loop operation.15 Motion denied, in part, and dismissed, in part, without prejudice.

15 Despite the facts that the staff has.not as yet decided whether to allow single loop operation and may deny the applicants' request, the OCRE motion apparently prompted the staff to consider the precise concerns set forth in the motion. Each of those concerns is addressed in a joint affidavit of two members of the branch in the Office of Nuclear Reactor Regulation responsible for the review of boiling water reactor systems, which was attached to the staff's response to OCRE's motion. Those reviewers concluded that none of OCRE's concerns raises a significant safety issue. Joint Affidavit of Laurence E. Phillips and George Thomas Concerning Single Loop Operation Contentions Raised by "OCRE" (December 24, 1985)..

Although we need not now appraise the reasons assigned.

in the affidavit for that conclusion, one thing is clear:

there is nothing now before us that would bring those reasons into question. In the event that the staff should ultimately approve single loop operation, any attempt by OCRE to challenge that approval perforce will have to explain why the staff analysis is wrong (i.e., why'such operation does pose a significant safety threat). Mere allegations to that effect will not be enough to satisfy the standard for reopening an evidentiary record. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 363 (1981). Nor, absent a concrete demonstration of probable staff error, would OCRE stand much chance of surviving a balancing of the five section 2.714 (a) (1) lateness factors that determine the acceptability of eleventh-hour contentions. See note 3, supra. This is because a particularly important factor is

the extent to which the participation of the contention's submitter "may reasonably be expected to assist in developing a sound record."

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It is-so ORDERED.

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1 j FOR THE APPEAL BOARD 1

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, C. gan . S hoemaker 3

Secretary to the Appeal Board 1 .

The" opinion of Dr. Johnson, dissenting in part,.1 follows.

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' Opinion of Dr. Johnson, dissenting in part:

OCRE's motion to reopen sets forth objections to 7

several specific aspects of applicants' request for single loop operation at 70% power. On the basis of information contained in the responses to the motion by the applicants and staff, the Perry FSAR, and the applicants' FSAR Amendment 22,1 it is entirely possible to conclude that there is no safety significance to the issues raised by OCRE. I believe we should deny the second portion of OCRE's motion on its merits now, without regard to the staff's ultimate resolution of applicants' request.

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1 Attachment (FSAR Appendix 15F, "PNPP Single Loop Operation Analysis") to a letter.from Murray-R. Edelman to Harold R. Denton (November 20, 1985).