ML20102A747

Response to Ohio Citizens for Responsible Energy 850122 Motion to Reword Issue 8 Re Hydrogen Control Rule for Degraded Core Accidents,Per 10CFR2.714 Requirements.Motion Should Be Denied.Certificate of Svc Encl

ML20102A747
Person / Time
Site:	Perry
Issue date:	02/06/1985
From:	Glasspiegel H CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#185-479 OL, NUDOCS 8502080546
Download: ML20102A747 (10)

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February 6, 1985 UNITED STATES OF AMERICA I['

NUCLEAR REGULATORY COMMISSION iv r a _n Before the Atomic Safety and Licensing Board N0:17 In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 O (-

ILLUMINATING COMPANY, ET AL. ) 50-441 O L-

)

(Perry Nuclear-Power Plant,- )

Units 1 and 2) )

APPLICANTS'~ RESPONSE TO OHIO CITIZENS FOR RESPONSIBLE ENERGY MOTION TO REWORD ISSUE #8 on January 23,'1985, Ohio Citizens for Responsible Energy

("OCRE") served a Motion to Reword Issue #8, dated January 22,

-1985 ("OCRE Motion"). OCRE's motion seeks to revise the wording of Issue #8, on hy-drogen control, so as to align its wording with its true intent and with the Commis-sion's'new hydrogen control rule for~de-

_ graded core accidents.

OCRE Motion at 1. For the reasons below, Applicants respect-

. fully request that the Licensing Board deny OCRE'S motion.

J OCRE'S_ motion proposes a complete rewording of its. Issue

98. . Issue #8, as admitted, states as-follows:

-Applicant has not demonstrated that the manual operation of two recombiners in each of the. Perry. units is adequate to assure that large amounts:of hydrogen can be safely-accommodated without a rupture of the containment and a release of

' DR o 440

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.o substantial quantities of radioactivity into the environment.

Memorandum and Order (Concerning Late-Filed Contentions: Qual-ity Assurance, Hydrogen Explosion, and Need For Increased Safe-ty of Control System Equipment), LBP-82-15, 15 N.R.C. 555, 563 (March 3, 1982). OCRE bases its proposed rewording / entirely l

1/ OCRE proposes the following new language for Issue #8:

Applicants have not complied with 10 CFR 50.44(c)(3)(iv),(v), and (vi), in that:

A. the Perry hydrogen control system has not been justified by a suitable program of ex-periment and analysis; B. the Perry hydrogen control system is not capable of handling the amount of hydrogen generated from a 75% metal-water reaction with-out loss of containment integrity; C. structural integrity of the Perry Mark III containment has not been demonstrated by a technique that adequately describes the contain-ment response to the structural loads involved:

D. systems and components inside the con-tainment necessary to establish and maintain safe shutdown and to maintain containment integ-rity are not capable of performing their func-tions during and after exposure to the environ-

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mental conditions created by the burning of hydrogen, including those environmental condi-tions caused by local detonations of hydrogen; E. Applicants have not analyzed suffi-cient and appropriate accident scenarios involving hydrogen generation from a metal-water reaction (up to and including a 75% metal-water reaction), and their scenarios (and evaluations thereof) do not adequately describe the behavior of the reactor system during and following a de-graded core accident.

OCRE Motion at 4.

e

b.

e on the Commission's new hydrogen control requirements for boiling water reactors (BWR's) with MARK III containments and pressurized water reactors (PWR'S) with ice condenser contain-ments, published at 50 Federal Register 3498 (January 25, 1985)

(effective Febrtiary 25, 1985) (" Hydrogen Rule"). The language of each part of OCRE's reworded contention is taken directly from a corresponding subsection of the Hydrogen Rule.2/

Thus, OCRE has proposed an entirely new contention which on its face bears no resemblance to the wording of Issue #8.

OCRE's proposed new contention uses new lc.aguage based upon a new Commission regulation. In these circumstances, OCRE is ob-ligated to comply with the Commission's requirements for new and late-filed contentions, set forth in 10 C.F.R. S 2.714.

OCRE must provide the basis, with reasonable specificity, for its new contention. 10 C.F.R. 5 2.714(b). OCRE also must jus-tify its late-filed contention with a discussion of each of the factors in 10 C.F.R. 5 2.714(a)(1). See 10 C.F.R. 5 2.714(a)(3) (applying the balancing factors in paragraph (a)(1) of S 2.714 to late-filed amended petitions).

OCRE's motion expressly denies that its " rewording of Issue #8" is a new, late-filed contention, subject to the 2/ Parts (A) and (B) of OCRE'S reworded contention are based on S 50.44(c)(3)(iv)(A) of the Hydrogen Rule. Part (C) of OCRE's reworded contention is based on 5 50.44(c)(3)(iv)(B) of the rule. Part (D) of OCRE's re-worded contention is based on S 50.44(c)(3)(v)(A) of the rule. Part (E) of OCRE's reworded contention is based on S 50.44(c)(3)(vi)(B)(3) of the rule.

requirements of 10 C.F.R. 5 2.714. OCRE Motion at 4-5, 8. But OCRE provides no legal justification for introducing an entire-ly new contention into this proceeding -- three years after the admission of Issue #8 -- without meeting 10 C.F.R. 5 2.714.

As OCRE notes in its motion at page 5, it tried unsuccessfully to reword Issue #8 in February 1983.3/ In re-sponse to OCRE's February 1983 motion, Applicants' answer4 /

clearly stated:

At such time as the final rule may issue, if OCRE decides to submit a new contention based on " Applicants' degree of compliance with the new regulation," such a new con-tention would have to meet the test for late-filed contentions under 10 C.F.R. 52.714(a), and the basis and specificity requirements of 5 2.714(b).

Id. at 7 (footnotes omitted). OCRE has now decided to submit a new contention testing Applicants' degree of compliance with the newly enacted Hydrogen Rule. As we stated in our March 14, 1983 answer, and as we have consistently stated since that time,5/ OCRE must first comply with 10 C.F.R. 5 2.714. In 3/ See OCRE Reply to NRC Staff Motion for a Deadline for the Specification of a. Scenario for Issue #8 and Motion for the Rewording of Issue #8 and Specification of Guidelines for its Litigation, dated February 23, 1983; Memorandum and Order (Applicant's Answer to Procedural Motion Con-cerning Hydrogen Control), dated March 31, 1983 (deferring a ruling on OCRE's motion to reword Issue #8 until after the NRC issues its rule on hydrogen control).

4/ Applicants' Answer to Ohio Citizens for Responsible Energy Motion for the Rewording of Issue #8 and Specification of Guidelines for its Litigation, dated March 14, 1983.

5/ See, e.g., Applicants' Reply to OCRE Response Regarding Specification of a Credible Accident Scenario Under Issue

1. 8, dated October 12, 1984, at 3 n.5.

O

light of Applicants' previous statements, we do not understand OCRE's claim that Applicants' current position represents "a radical departure from previous . . . Applicant positions."

See OCRE Motion at 4-5.

As OCRE points out, it has conducted broad discovery over the past three years on Issue #8. See December 7, 1984 tele-phone conference transcript, Tr. 2024-2025 (summarizing the ex-tent of discovery on Issue #8). Although Applicants have been liberal in supplying information in response to OCRE'S inter-rogatories concerning Applicants' plans for installing a hydro-gen ignition system, we have never agreed to a rewording or broadening of the scope of Issue #8 beyond its plain words.1/

The Licensing Board has never enlarged the scope of Issue #8, which speaks only to the adequacy of the manual operation of the recombiners to prevent rupture of the containment and re-lease of radioactivity. Thus, it is OCRE'S position that "ne-glects the histary of Issue #8."Z/

Even if OCRE were able to meet the standards of 10 C.F.R. 5 2.714 and to justify a new, late-filed contention based on the Hydrogen Rule, OCRE would still be bound by the 6/ See the Licensing Board's December 20, 1983 Memorandum and Order.(OCRE Motion to Reopen Discovery), at 4'(distin-guishing the relevancy and materiality requirements for questions at.a hearing with the standards for discovery; i.e. questions that "may lead to the discovery of relevant material".).

7/ See OCRE Motion at 4-5.

~

A implementation provisions of the new rule. With the exception of the requirements of 5 50.44(c)(3)(iv)(A), the requirements of the rule need not be met before operating license issuance.

Sections 50.44(c)(3)(vii)(A) and (D) of the new rule provide that Applicants have until June 25, 1985, to submit to the staff a proposed schedule for meeting the requirements in para-graphs (c)(3)(iv), (v), and (vi) of the new rule. The staff then has 90 days to establish a final schedule for meeting the requirements of paragraphs (c)(3)(iv), (v) and (vi). Only with respect to the requirements of paragraph (c)(3)(iv)(A) is there an implementation deadline that necessarily precedes OL issu-ance. For this paragraph only, the rule provides that Appli-cants must submit "a preliminary analysis which the staff has determined provides a satisfactory basis for a decision to sup-port interim operation at full power until the final analysis has been completed." 10 C.F.R. S 50.44(c)(3)(vii)(B). The rule places significant discretion with the staff to determine what constitutes a satisfactory preliminary analysis under 10 C.F.R. 55 50.44(c)(3)(iv)(A) and (c)(3)(vii)(B).

Thus, while the Commission expressly applied the schedule requirements of 5 50.44(c)(3)(vii)(A) and (D) to the substan-tive hydrogen control requirements of paragraphs (c)(3)(iv),

(v) and (vi), it only applied the preliminary analysis require-ment in 5 50.44(c)(3)(vii)(B) to paragraph (c)(3)(iv)(A).

4 Under the legal doctrine "expressio unius est exclusio alteri-us".(expression of one thing is the exclusion of another),E/it is clear that the Commission intended to exclude the detailed requirements of paragraphs (c)(3)(iv)(B), (c)(3)(v), and (c)(3)(vi) from the preliminary analysis requirement of para-graph (c)(3)(vii)(B). Accordingly, parts (c), (D) and (E) of OCRE's proposed new contention, which are taken directly from paragraphs (c)(3)(iv)(B), (c)(3)(v)(A), and (c)(3)(vi)(B)(3) of the Hydrogen Rule, respectively, are not admissible in any case, since Applicants are not required to demonstrate compli-ance with these requirements of the Hydrogen Rule prior to receiving a full power license from the Commission.

Nor has OCRE even attempted to demonstrate that Applicants will be unable to meet the preliminary analysis requirement for paragraph (c)(3)(iv)(A), upon which the remaining parts (parts (A) and (B)) of OCRE'S proposed new contention are premised.

OCRE cites without any explanation a newly filed, updated re-sponse to Interrogatory No. 10 of Applicants' Second set of In-terrogatories to OCRE. OCRE Motion at 4.1/ OCRE's updated.in-terrogatory response is a selective discussion of information-8/ See D. Sands, 2A Sutherland Statutory Construction (4th ed. 1972), 5 47.23, page 194 ("The force of the maxim is strengthened where a thing is provided in one part of the statute and omitted in another").

9/ OCRE's updated response was filed with OCRE Updated Re-sponses to Applicants' Second Set of Interrogatories to OCRE, dated January 22, 1985 (" Updated Response").

2 gathered from bits and pieces of the massive quantity of hydro-gen documentation acquired by OCRE after three years of discov-ery in this case, and after numerous Freedom of Information Act

-requests. OCRE's updated interrogatory response provides no eA lanation of why Applicants will be unable to meet the pre-liminary analysis requirements of the Hydrogen Rule.10/

'For all these reasons, OCRE has provided no basis for re-wording Issue #8. OCRE's motion should therefore be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: Y -

i Jay E. (llberg, P.C.' f Harry H. Glasspiegel Counsel for Applicants 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: February 6, 1985 10/ Indeed, a number of OCRE's latest arguments in its updated response involve issues, such as manual initiation of the igniter system (Updated Response, page 10), and provision of a backup power supply-(Updated Response, page 10),

which challenge the new rule. See 50-Fed. Reg. 3504

(" manual actuation was concluded to be acceptable"); 50 Fed. Reg. 3502 (" Provision of a backup power supply is not required by the rule".).

l&.

4 i

February 6, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In.the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing

" Applicants' Response to Ohio Citizens For Responsible Energy Motion To Reword Issue #8" were served by deposit in the United States Mail, first class, postage prepaid, this 6th day of February, 1985, to all those on the attached Service List.

i 4.f r 4 Harry H Glasspiegel #

Dated: February 6, 1985 l

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't UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

SERVICE LIST James P. Gleason, Chairman Atomic Safety and Licensing 513 Gilmoure Drive Appeal Board Panel Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Jerry R. Kline Docketing and Service Section

. Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Glenn O. Bright. Colleen P. Woodhead, Esquire.

Atomic Safety and Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C.- 20555

. Christine N. Kohl,' Chairman

. Atomic Safety and. Licensing Terry Lodge, Esquire Appeal Board Suite 105 U.S. Nuclear Regulatory Commission 618 N. Michigan Street Washington, D.C. 20555 Toledo, Ohio 43.624 Dr. W. Reed Johnson Donald T. Ezzone,. Esquire Atomic Safety and Licensing' Assistant Prosecuting Attorney Appeal Board Lake County Administration U.S. Nuclear Regulatory Commission Center Washington, D.C. 20555 105 Center Street Painesville, Ohio 44077

. Gary J. Edles, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board . Board Panel

U.S. Nuclear Regulatory Consnission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 John G.. Cardinal, Esquire Ms. Sue Hiatt-Prosecuting Attorney- 8275=Munson Avenue Ashtabula County Courthouse Mentor,jOhio 44060 Jefferson,' Ohio 44047