ML20010G033

Clarifies Procedures Applicant Believes Should Be Taken in Event 810911 Evidentiary Hearing Answers ASLB Questions 3-10 on Fire Rack Proposal Positively

ML20010G033
Person / Time
Site:	Dresden
Issue date:	09/03/1981
From:	Steptoe P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8109150252
Download: ML20010G033 (3)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket Nos. 50-237-SP COMMONWEALTH EDISON COMPANY ) 50-249-SP

) (Spent Fuel Pool (Dresden Station, Units 2 & 3)) Modification)

Dear Administrative Judges:

In our telephone conference call on Monday, August 31, 1981 it was tentatively determined to hold a hearing in Bethesda on September 11, 1981 to answer certain outstanding questions the Board has concerning Applicant's

" Motion for a Partial Initial Decision Approving Installation of Five Racks" dated August 13, 1981. There appeared to be some uncertainty whether, if the Board determines Applicant has met its evidentiary burden in that hearing and approves Applicant's five rack proposal, such approval must be documented in a formal written opinion.

1/ Part of this uncertainty arises because, although l i

10 CFR Section 2.730(e) , added by the recent rule changes for expediting the NRC hearing process, allows Licensing Boards to dispose of written motions "

either by written order or by " ruling orally . . . , %O3 .

Section 2.760(c) which was unaffected by the recent y i l

rule changes, states that "An initial decision will be in writing. . . ." /(fO S Lcc :n g L.a 95 SEP 9198l ,, h Offico cf th Sece f k;ketz & Sgn, Et;::;!! e M 8109150252 810903 PDR ADOCK 05000237 /

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The purpose of this letter is to provide clari-fication about the procedures which Applicant believes should be taken in the event the evidentiary hearing on i September 11 satisfactorily answers Board Questions 3 through 10 on the five-rack proposal. Although its motion was captioned as a request for Partial Initial Decision, the motion was intended to request that the Board issue i

! a complete written initial decision on all matters in controversy (including all of Intervenor's contentions and Board Questions 1 and 2), but make that decision i immediately effective only as to five racks.

Applicant believes the above procedure, whatever it is denominated, is justified by the Commission's Rules of Practice and by the present posture of this proceeding.

Evidence had been taken on all matters in controversy, the .

record was closed, a complete initial decision was prepared, and the Staff then asked the Board not to issue the decision.

4 The Staff, husever, even agrees with the Applicant that

} the reason why the Staff originally requested the initial l

decision not be issued (the " sliding and tilting" issue) should not prevent the Board from approving the installation of five racks. Consequently, if Board Questions 3 through i

10 are answered to the Board's satisfaction, the initial decision which had been prerared can be issued and the installation of five racks approved.2 The initial decision need not contain any written findings concerning the " sliding and tilting" issue pursuant to 10 CFR SS2.760 (c) and 2.760a since this issue is not a matter in controversy in this case 3 1

2/ Of course, Applicant readily concedes that in the event

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the Board is not satisfied with the responses to Board Questions 3 through 10, approval for even the five racks vould be inappropriate.

3/ An issue becomes a matter in controversy by being included in an intervenor's contention (which is not the case here) or by action of the Board if it determines that a serious safety, environmental, or common defense and security matter exists. 10 CFR S2.760a. As we understand it, one of the purposes of the September 11, l 1981 hearing is to help the Board determine whether such a serious safety matter exists. Applicant and the Staff have already informed the Board through affi-davits that they do not believe a serious safety issue exists with respect to installation of five racks.

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Consequently, Applicant believes that the Board  ;

can (A) issue oral findings on Board Questions 3 through 10  !

at the conclusion of the hearing on September 11, 1981; (B) enter the initial decision previously prepared in this matter; (C) make the initial decision immediately effective as to five of the high-density racks and stay its effective-ness as to the remainder; and (D) retain jurisdiction over this proceeding pending final resolution of the " sliding and tilting" issue, at which time the initial decision can be (1) made effective as to the remaining racks or (2) modified to deny approval for the remaining racks.

Further, Applicant hopes that (A), (:B) and (C) , above, could all be completed by September 15, 1981 so that Applicant would not be forced to resort the inferior aternative of moving fuel between pools to re-establish full core discharge capacity in time for the forthcoming refueling outage.

Respe s bmit d Phili P. Np lh One of the Attgrneys j or Commonwealth Edison Company PPS/kb CC: Service List (Express Mail)

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