ML20056F373

Comment Discussing Proposed Determination That Requested Amends Do Not Involve Significant Hazards Consideration within Meaning of 10CFR50.92 for Filing

ML20056F373
Person / Time
Site:	River Bend
Issue date:	08/23/1993
From:	Wetterhahn M GULF STATES UTILITIES CO., WINSTON & STRAWN
To:	NRC OFFICE OF ADMINISTRATION (ADM)
References
FRN-58FR36423 58FR36423-00001, 58FR36423-1, NUDOCS 9308270063
Download: ML20056F373 (11)

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L Of ~7/tJ 43 WINSTON & STRAMW FREDERICK H WINSTON (1%31866) 1400 L STREET. NW. cHCAGO FCE SILAS H STRAWN0 891 1946) WASHINGTON, DC. 20005-3502 as wcsv wAcxcm onwr CHCAGO, ILLINOlB bDtW1 (202) 371-5700 FACSIMILE (202) 371-5950 w n waitt a s DmEC2 Di AL NUMBE R NEW YORK. NY 10036 4981 202/371-5703 " ""5 August 23, 1993 b '

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Rulen Review and Directives Branch O Division of Freedom of Information $

and Publications Services g Office of Administration ~J U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Gulf States Utilities Company Docket No. 50-458 River Bend Station, Unit 1, 58 Fed. Rec. 36423, 36435, 36436 Gentlemen:

Enclosed please find the Response of Gulf States Utilities Company to the Comments of Cajun Electric Power Cooperative, Inc., on the Staff's Proposed Determination that the Requested Amendments do not Involve a Significant Hazards Consideration Within the Meaning of 10 C.F.R. S 50.92 for filing in connection with the above-referenced matter.

Please contact me if you have any questions on this filing or require any additional information.

Sincerely,

1. f Mark J. Wetterhahn Counsel for Gulf States Utilities Company MJW:sdd Enclosure cc: Suzanne C. Black NRC Project Director 9308270063 930823 PDR PR 50 SBFR36423 PDR

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1 RESPONSE OF GULF STATES UTILITIES COMPANY TO THE  !

COMMENTS OF CAJUN ELECTRIC POWER. COOPERATIVE, INC.,  !

ON THE STAFF'S PROPOSED DETERMINATION THAT THE  ;

REQUESTED AMENDMENTS DO NOT INVOLVE A SIGNIFICANT l HAZARDS CONSIDERATION WITHIN THE MEANING OF 10 C.F.R. E 50.92 l

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I. INTRODUCTION 1 On January 13, 1993, Gulf States Utilities Company ,

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("GSU") filed two applications relating to Facility Operating l c

License NPF-47 (" License") for the River Bend Station -

Unit 1 l

(" River Bend") . The first application sought the NRC's consent i

pursuant to 10 C.F.R. S 50.80 to a change of control over GSU and l i

a conforming amendment to the operating license to reflect the  ;

l change in control over the licensee (" merger applic=. tion").I' The- l second application sought a license amendment to reflect a change ,

in the licensed operator of the facility from GSU to Entergy l Operations, Inc. ("EOI"), a subsidiary of Entergy Corporation

("Entergy") (" operator application").2/

By notices published in the Federal Register on July 7, j 1993 (58 Fed. Reg. 36,423, 36,435 and 36,436), the Nuclear Regulatory Commission ("NRC" or " Commission") provided, inter alia, an opportunity for comment pursuant to 10 c.F.R. S 50.91 on the NRC Staff's proposed determination that the license amendments involve  :

no significant hazards consideration.

On August 6, 1993, in response to the notices, Cajun

r Electric Power Cooperative, Inc. (" Cajun") filed a single document l'

See License Amendment --

Change in Ownership of Licensee, dated January 13, 1993. l 2' See License Amendment -- Change in Licensed Operator of the Facility, dated January 13, 1993.

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(for purposes of this response " Cajun Comments") addressing the Staf f's proposed findings of no significant hazards consideration, as well as petitioning for intervention and a hearing.2' For the reasons set forth below, in accordance with 10 C.F.R. S 50.92 and the Faderal Register notices, the NRC Staff should make a final {

determination that the proposed amendments do not involve a significant hazards consideration.d' '

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l 2' On August 17, 1993, Cajun filed a pleading titled " Cajun Electric Power Cooperative, Inc. 's Amendment to its Previously l Filed Comments, Petition for Leave to Intervene, and Request for Hearing and Conditions, on Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing." The untimely filing of Cajun adds nothing on the issues relevant to the Staff's no significant hazards consideration determination.

i' It is well-established that the issue of whether a proposed amendment to an operating license constitutes a "significant hazards consideration," as that term is defined in 10 C.F.R.

S 50.92, is a matter clearly within the discretion of the Staff and is not subject to any review by a licensing board.

10 C.F.R. 50.58 (b) (6) . See also Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) , LBP-87-17, 25 N.R.C. 838, 844 (1987), aff'd in part on other arounds, ALAB-869, 26 N.R.C. 13 (1987), reconsid. denied on other arounds, ALAB-893, 27 N.R.C. 627 (1988). Accordingly, GSU is filing this response to Cajun's comments on the proposed finding of "no significant hazards consideration" with the Staff, separately from GSU's opposition before the Atomic Safety and Licensing Board to Cajun's petition to intervene and request for hearing.

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II. DISCUSSION A. THE STAFF CORRECTLY DETERMINED THAT THE PROPOSED TWO I AMENDMENTS DO NOT INVOLVE A SIGNIFICANT HAZARDS CONSIDERATION  :

. I Under the Commission's regulations in 10 C.F.R. 5 50.92, j i

the Staff must review a proposed amendment to an operating license I for purposes of determining whether the proposed amendment involves  ;

a significant hazards consideration with respect to the operation l I

of the facility. In order to find that the amendment does not '

i constitute a significant hazards consideration, the Staff must determine that the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety.

In the present case, the two amendments involving the proposed transfer of control over GSU and the authorization to transfer to EOI the responsibility for, and control over, the physical operation and maintenance of the facility, satisfy the three criteria. As set forth in the Amendment Applications of GSU, the proposed amendments do not change the ownership of the facility, do not change the physical condition of the plant, do not change any operating procedures, and do not change the source of funding for plant operation.2' Rather, the proposed amendments l' See License Amendment -- Chance in Licensed Operator of the Facility, dated January 13, 1993, at 12-3:

(continued...)

simply recognize the decision by Entergy and GSU to combine their businesses and for EOI to operate River Bend.

As explained in the applications, the proposed changes will not increase the probability of any accident previously evaluated. Under the proposed amendments, all of the Limiting Conditions for Operation, Limiting Safety System Settings, and Safety Limits specified in the Technical Specifications will remain unchanged. Moreover, the River Bend Quality Assurance Program, Emergency Plan, Security Plan, and Operator Training Requalification Program remain unaffected by the proposed amendments. In f act, EOI is presently operating four other nuclear power reactors,s' and thus has been found technically qualified by l'( . . . continued)

The business combination and proposed amendment do not in any way alter the status auo with respect to GSU's and Cajun's ability to obtain the funds necessary to cover all costs for the operation, maintenance, repair, decontamination and decommissioning of River Bend. GSU and Cajun will remain severally liable for such costs, on a pro rata basis, under the Joint Ownership Agreement.

GSU's and Caiun's financial responsibility for River Bend and their sources of funds to support the facility will remain the same as under the present License. (emphasis added).

Indeed, because the costs for the operation of River Bend remain the responsibility of the owners, GSU and Cajun, the financial qualifications of EOI and Entergy are not at issue here, nor is the NRC required to conduct a review of the financial qualifications of these entities pursuant to 10 C.F.R. S 50.33(f). Therefore, gratuitous statements by Cajun concerning EOI's financial status, see, e . a.,_ , Cajun Comments at 3 (EOI " thinly capitalized"), ici, at 4 (the " shaky financia1 underpinnings of EOI"), are irrelevant.

s' The four units are: Arkansas Power & Light Company's Arkansas Nuclear One, Units 1 and 2 ("ANO"); Louisiana Power & Light (continued...)

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the NRC to operate multiple units and will bring added experience to River Bend. See License Amendment -- Change in Licensed Operator of the Facility, dated January 13, 1993, at 11-12 (The expected benefits of EOI's operation of River Bend include, among other things, access by River Bend to a larger repository of nuclear expertise and experience, enhances perspectives on nuclear operations, and a broader base and a more competitive environment for management personnel) . While EOI's experience is not essential to the Staff's analysis, it provides additional assurance that the proposed amendments do not constitute a significant hazards consideration. It is also significant that nowhere does Cajun raise any issue concerning EOI's ability to operate River Bend.

Similarly, these two amendments will not --

indeed, cannot --

create the possibility of a new or different kind of accident. The design and design bases of River Bend will remain the same; therefore, the existing plant safety analysis remains complete and accurate in analyzing design basis events as well as plant responses and consequences.

Finally, contrary to the comments of Cajun, the amendments do not involve a reduction in the margin of safety for River Bend. Plant safety margins are established though the Limiting Conditions for Operation, Limiting Shfety System Settings, f(... continued)

Company's Waterford Unit 3 ("Waterf ord") ; and System Energy Resources, Inc.'s Grand Gulf Unit 1 (" Grand Gulf").

Importantly, the design of the Grand Gulf Unit is similar to River Bend.

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and Safety Limits specified in the Technical Specifications.2/ In I granting the proposed amendments, these margins will remain unchanged. In addition, there will be no change to the physical design of the plant. Moreover, as set forth in the application for the amendment to permit EOI to operate River Bend, substantially j all of the GSU employees presently dedicated to the operation of l i

River Bend will simply become EOI employees. See License l l

Amendment -- Change in Licensed Operator of the Facility, dated j January 13, 1993, at 5. For these reasons, the Staff's initial l

l determination that the two amendments do not involve a "significant 1

I hazards consideration" was correct and supported by the record. l l

l The Staff should now finalize those initial determinations with l

l respect to the two amendments at issue here.

l B. THE PURELY ECONOMIC ISSUES RAISED BY CAJUN DO NOT l CONSTITUTE A SIGNIFICANT HAZARDS CONSIDERATION

1. The " Unavailability" of Entergy Assets For Operating Expenses At River Bend is Not a Safety Issue.

In response to the Staff's preliminary finding of no significant hazards considerations, Cajun attempts to create purely economic issues which purportedly constitute a significant hazards consideration. First, Cajun argues that the failure of Entergy to guarantee funding of EOI's operation of River Bend is such an issue. Cajun's argument is circular and without merit. The funding for River Bend operations will remain, as it is today, the 1

21 See 51 Fed. Reg. 7744, 7751 (1986), " Final Procedures and Standards on No Significant Hazards Considerations."

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I responsibility of the owners of the facility. The proposed amendments do not change the ownership of the facility.

Under the merger application, GSU, currently an owner of l a 70% undivided interest in River Bend, will become a wholly owned subsidiary of a reconstituted Entergy Corporation. As a subsidiary of Entergy, GSU will continue to retain its 70% undivided ownership i interest in the facility. Likewise, Cajun will maintain its 30% >

undivided ownership interest. After the two amendments take effect, GSU and Cajun, as the co-owners of River Bend, will continue to be responsible for the costs of operation of the plant, s

just as today.

I Cajun fails to identify how or why amendments that will i not change the funding responsibility or capability for the plant I

l constitute a substantive issue for NRC consideration, let alone a '

l significant hazards consideration.

l 2. Cajun's Purported Significant Hazards Consideration Is Premised Upon a Misunderstanding of the Staff's Responsibility Under 10 C.F.R. E 50.92.

Cajun attempts to create an issue by formulating a new ,

test for determi! ting the existence of a significant hazards consideration. Rather than evaluating the three criteria set forth in 10 C.F.R. S 50.92, Cajun argues that the Staff should review the proposed amendments to ensure that River Bend will continue -- for some indefinite and undefined period --

to generate electrical power . E' l'

See, e.u. , Cajun Comments at 4 ("EOI may be forced to shutdown the River Bend Station" (emphasis in original, footnote omitted)).

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This supposed criterion -- that River Bend continue to  ;

produce electricity --

is not found in the regulatory scheme. f Indeed, whether or not River Bend continues to produce electricity is of no concern to the NRC as long as the plant is operated safely and, if and when it can no longer be operated for any reason, can j be shut down and maintained safely in a shut down condition. Long

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Island Liahting Co. (Shoreham Nuclear Power Station, Unit 1) , l t

CLI-90-8, 3 2 NRC 2 01, 207 (1990) ("LILCO is legally entitled under the Atomic Energy Act and our regulations to make, without any NRC i i

approval, an irrevocable decision not to operate Shoreham. The )

alternative of ' resumed operation' --

or other methods of l generating electricity -- are alternatives to the decision not to i

operate Shoreham and are thus bevond Commission consideration." '

i (emphasis added)); Id. at 208, n.4 (the Commission has "no authority to mandate operation of the f acility") . See also Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 385 ("The protected interest under the AEA relate to radiological health and safety"), aff'd, ALAB-470, 7 NRC 473 (1978). Even if electric power production should cease, the reactor in a shutdown state would still be in a safe condition.

Moreover, nowhere in its comments does cajun explain how or why the proposed amendments will constitute a significant hazards consideration or even why it would make shutdown of the unit more likely. Even if the unit were shut down, as hypothesized 1

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by Cajun, it would be because of the Cajun litigation, not because of anything contained in the proposed amendments.2'

3. Cajun's Comments Are Simply Legal Posturing for Its Litictious Activities in Other Forums.

The Staff should recognize the obvious desire of Cajun to i l

capture a " deep pocket" in the event it is successful in any of its l litigation. Cajun's comments are replete with references to enhancing Cajun's ability to collect a judgment against GSU by l

imposing financial responsibility for any judgment on Entergy.E' j The Staff should not accede to Cajun's efforts to use the NRC I regulatory process as a means of enhancing Cajun's chances of obtaining a more favorable settlement or perhaps a " deep pocket" i for any judgment.

i These are matters that do not affect or even pertain to safety, or constitute a significant hazards consideration. The proposed amendments and the underlying business transactions that gave rise to the request for the amendments have no adverse effect 2' Despite its attempts to belittle the GSU application as too brief on this issue, nowhere does Cajun take exception to or issue with any statement contained in either GSU's surmission or, more importantly, the Staff's proposed finding of no significant hazards consideration. See Cajun Comments at 14.

The facts that ownership of River Bend will not change that funding capability and responsibility for the operations of the plant will not change account for the brevity of the submission by GSU.

E' Any doubt as to the real purpose of Cajun's Comments is dispelled by its request for a license condition seeking, inter ali_a, to " require Entergy to extend its credit to, indemnify and otherwise financially support GSU" to ensure that Cajun will be paid in the event it is successful in its other unrelated litigation against GSU. See Cajun Comments at 30.

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on the safe operation of River Bend. Indeed, under EOI's operation, the safety of River Bend will be enhanced, and Cajun has l offered no evidence or arguments to the contrary. Rather, for reasons purely of financial self-interest, Cajun has asked that the Staff reverse its preliminary decision with respect to its finding i

of "no significant hazards consideration." Cajun's request is without merit and should be rejected.

III. CONCLUSION ,

Cajun has failed to identify any issue that would require  !

i the Staff to reconsider its proposed determination that the two i license amendments do not involve a "significant hazards l

l consideration" within the meaning of 10 C.F.R. S 50.92. For that [

reason, the Staff should finalize its determination and issue the j i

two proposed amendments to the River Bend Operating License.

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