ML19316B141

Motion for Reconsideration of Commission 800516 Memorandum & order,CLI-80-16.Order Resolved Factual Issues W/O Benefit of Record & W/O Giving Opportunity to Parties to Present Cases

ML19316B141
Person / Time
Site:	Three Mile Island
Issue date:	06/04/1980
From:	Weiss E SHELDON, HARMON & WEISS, UNION OF CONCERNED SCIENTISTS
To:	NRC COMMISSION (OCM)
Shared Package
ML19316B142	List: ML19316B141 ML19316B145
References
CLI-80-16, NUDOCS 8006110370
Download: ML19316B141 (7)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION T/

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BEFORE THE NUCLEAR REGULATORY COMMISSION A Co g3 /

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In the Matter of )

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METROPOLITAN EDISON ) Docket No. 50-289 COMPANY, _e_t a_l . ,

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(Three Mile Island )

Nuclear Station, Unit )

No. 1) )

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UNION OF CONCERNED SCIENTISTS' MOTION FOR RECONSIDERATION OF CLI-80-16 In a Memorandum and Order dated May 16, 19 80, C LI 16, the Commission addressed itself to two questions certified to it by the Licensing Board for the TMI-l Restart proceedings.

These were: ,

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1. Whether the provisions of 10 CFR 50.44 should be waived or exceptions made thereto in this proceeding where a prima facie showing has been made under 10 CFR 2.75'8 that hydrogen gas generation during the TMI-2 accident was well in excess of the amount required under 10 CFR 50.44 as a design basis for the post-accident combustion gas control system for TMI-1. l

2. Whether post-accident hydrogen gas control should be an issua in this proceeding where post-accident hydrogen control was perceived to be a serious problem and was in fact a problem during the TMI-2 0 ?

accident. O 8 006110 59C) Cr- .

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r In response to the certification (and without inviting the comments of the parties), the Commission declined to waive 10 CFR 50.44 and held that post-accident hydrogen control can be litigated under Part 100. Specifically, in order to get to the question of whether hydrogen control measures planned for TM-1 are adequate, intervenors must show that there is "a credible loss-of-coolant accident scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiation doses in excess of Part 100 guideline values." (Sl. op. at 2)

In support of its decision to leave 10 CFR 50.44 in place, the Commission made two basic and interrelated argu-ments. First, while recognizing that the TMI accident

" raised a safety issue regarding hydrogen control . . . that should be addressed," (Sl. op. at 2), the Commission argued that the appropriate forum in which to consider hydrogen design basis assumptions is a " planned" rulemaking which has yet been neither noticed nor scheduled. Second, the Commis-sion finds that " operator interference with ECCS operation .

. . was the root cause of the hydrogen generation problem" at TMI-2 (Sl. op. at 4) and that the post-TMI " instruction" to licensees not to prematurely turn off ECCS " compensates for the less conservative analytical framework of Part 100, and serves as a basis to sustain the present hydrogen generation assumption of 50.44 at least for the interim until the degraded core rulemaking can be completed." (Id.)

UCS requests the Commission to reconsider CLI-80-16.

We believe that it is incorrect both as a matter of law and

of fact and that it reflects an ill-considered prejudgment of some of the basic unresolved issues raised by the TMI-2 accident.

-Because the key to the decision seems to be the Commis-sion's conviction that interference with the ECCS was the

" root cause" of the hydrogen problem and that the new instruc-tion to operators has sufficiently addressed that cause, we will address that issue first. UCS believes that, in reaching that factual conclusion, the Commission has made a number of implicit assumptions in the absence of any factual record and has prejudged issues yet to be resolved in the hearings.

First, the Commission has assumed that if the TMI operators had not turned off the ECCS, the 'c ore would have been adequately cooled. This assumption is unproven and unwarranted. There is no evidence of which we are aware indicating that the core was in a coolable condition at the time ECCS was throttled. It is not an established fact that, for the small-break LOCA sequence of the TMI-2 acci-dent, the core would have been adequately cooled but for premature throttling of ECCS. On the contrary, this is the subject of UCS Contention No. 8.-1/

Second, the Commission has assumed tnat the instruction to operators removes the cause for concern that ECCS will be prematurely turned off. The instruction only specifies the conditions under which the operator may terminate ECCS. It assumes that the instrumentation available to the operator 1/ For the convenience of the Commission, a copy of UCS's final contentions is attached.

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to indicate the condition of the core is reliable. UCS believes that in the case of TMI-1, the available instru-mentation does not in all instances give an uncmbigious and reliable indication of the condition of the core and thus, the NRC's instructions do not ensure against premature ECCS

{ termination. Again, this is an issue in controversy in this case through UCS contention No. 7.

Thirdly, the Commission appears to assume that instruc-tions to operators can compensate for poor design. 10 CFR 50.55 (a) (h) incorporates 54.16 to IEEE 279, which requires:

The protection system shall be so designed that, once initiated, a protection system action shall go to completion.

In UCS's view, this requires that the design of the facility preclude premature ECCS termination by, for example, prevent-ing manual interference with ECCS until certain selected plant parameters measuring the condition of the core have reached established levels. We recognize that our interpre-tation of the regulations is disputed by other parties.

Nonetheless, it is an issue yet to be decided in this case and properly raised by UCS Contention No. 10.

Finally,-the Commission assumes that the appropriate dose limits to apply to the analysis of hydrogen control are those contained in Part 100. Part 100 requires the licensee

! to show that, even if the plant's safety systems are breached, doses to the public will not exceed the limits established I .therein.- In contrast, the much stricter provisions of Part 20 limit expected releases which occur assuming the proper

operation of plant systems.

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By incorporating the Part 100 limits for the purpose of judging the acceptability of hydrogen control measures, the Commission has confused the two and misapplied Part 100.

Application of the principle established by CLI-80-16 would allow purposeful releeses up to the Part 100 limits. This would be analogous to saying that, if a plant's system for treating radioactive wastes were to malfuction, the licensee would be permitted to deliberately release material up to the Part 100 limits. Of cource, this would not be permitted; the Part 20 limits would apply.

The staff has acknowledged this issue in NUREG-0578, "TMI-2 Lessons Learned Task Force Status Report and Short-term Recommendations:"

The course of events at TMI-2 with respect to hydrogen production and control in containment has indicated a need for thorough reconsideration of the Commission's design basis for combustible gas control systems. This should include both a re-examination of the reactor sys-tem effects (i.e., coupling the ECCS evaluation and the assumption of hydrogen produced by metal-water reaction) and the acceptability of 10 CFR Part 100 guidelines for evaluation of offsite doses from purposeful re-leases from the containment. (NUREG-0578, A-23, Emphasis added)

The above discussion has demonstrated that, in CLI-80-16, the Commission explicitly or implicitly resolved disputed factual issues without benefit of a record and without giving the parties an opportunity to make their case. This is analogous to the course followed by the Commission in a previous case and disapproved by the Court in State of Minnesota v. N.R.C. 602 F. 2d 412 (D.C. Cir., 1979). The Commission may establish l precedent by rulemaking or by adjudication; what it may not l

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do is resolve factual issues properly raised in pending pro-ceedings by fiat. (Id. at 416-417)

The final issue is whether the Commission, recognizing -

the lack of a rational technical foundation for the hydrogen generation design basis limits established in 10 CFR 50.44, may keep these limits in place for this proceeding while moving on an entirely separate track toward a " planned" rulemaking which has been neither scheduled nor noticed. We believe that it cannot.

There is no question that the agency is free to resolve issues before it either by rulemaking or by adjudication.

SEC v. Chenery Corp. 332 US 194 (1947) The question here is whether, once the issue has been raised in this case the Commission can (1) take it out of this case when no formal rulemaking has yet been announced and (2) proceed with completing this case and authorizing restart before the issue has been resolved in the rulemaking proceeding. If the Commission were to tie the restart of TMI-l to resolution of the generic issue in the rulemaking context, we would have no grounds to object. However, we believe that it is impermis-sible to deny the intervenors any forum in which to address this question before the plant resumes operation. The l Commission's decision would do precisely that..

For the above-stated reasons, UCS moves the Commission l

to reconsider CLI-80-16 and to answer the certified questions in the affirmative by waiving the applicability of 10 CFR 50.44 for this proceeding. In so doing, the Commission woul'd fully preserve its ability to consider the generic

issues in a rulemaking proceeding and would avoid prejud'.ciously prejhdgi.'g unresolved questions involved in the restart proceedings.

l Respectfully submitted, t

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'L Eltyn ,R'.

u Weiss Harmon & Weiss 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 (202) 833-9070 Counsel for the Union of Concerned Scientists June 4, 1980 1

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