ML20207Q322

Memorandum & Order.* Explains Aslab 860116 Order Ruling That License Condition Imposed in ASLB Partial Initial Decision LBP-86-41 Does Not Bar Issuance of Low Power Ol.Aslb Lacked Authority to Impose Condition.Served on 870123

ML20207Q322
Person / Time
Site:	Vogtle
Issue date:	01/21/1987
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
CON-#187-2261 ALAB-859, LBP-86-41, OL, NUDOCS 8701270163
Download: ML20207Q322 (8)

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' ~ $l SERVED JAN 231987 DOCKETED

, USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'87 Ja 22 A11 :41 ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: GTt - '

DCCVf 'm '

Gary J. Edles, Chairman January 21 1987 Christine N. Kohl (ALAB-859)

Howard A. Wilber

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In the Matter of )

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GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424-OL

) 50-425-OL (Vogtle Electric Generating )

Plant, Units 1 and 2) )

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MEMORANDUM AND ORDER In an order issued January 16, 1987, we ruled that a license condition imposed by the Licensing Board in its concluding partial initial decision, LBP-86-41, 24 NRC ,

(December 23, 1986) (slip opinion at 50), was not a bar to the issuance of a low-power operating license for the Vogtle facility by the Director of the NRC's Office of Nuclear Reactor Regulation (NRR). The basis of our ruling was that the Licensing Board lacked authority to #-

oose this condition, rendering it null and void. We now < .ain that

_ ruling.

Background

In 1984, the Licensing Board admitted contention 10.1, proffered jointly by intervenors Campaign for a Prosperous Georgia (CPG) and Georgians Against Nuclear Energy (GANE).

Relying on a report from the Sandia National Laboratories, 8701270163 B70121 gDR ADOCK 05000424

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this " environmental qualification" contention alleged that certain safety-related equipment at Vogtle contained polymers that might experience greater degradation from lower dose rates of radiation than would be expected based on testing at higher dose rates. (This is termed a " dose rate effect.") See LBP-84-35, 20 NRC.887, 903 (1984).

After hearing substantial uncontroverted testimony on contention 10.1, the. Board ultimately concluded that it was without merit. Specifically, the Board found that polymer materials destined for use in safety-related [Vogtle] applications have -

acceptably passed an adequate environmental qualification program. Additional assurance as to the adequacy of these polymers will derive from an operational surveillance program to be implemented by Applicants. .-

L LBP-86-28, 24 NRC , (August 27, 1986) (slip opinion at 50).

GANE filed a notice of appeal from LBP-86-28 on September 8, 1986.I By letter ten days later, applicants advised both us and the Licensing Board (as well as the parties) of newly discovered information regarding contention 10.1. The polymer that showed discernible dose rate effects in the Sandia study is a member of a group of I

We dismissed CPG's appeal, finding that CPG had voluntarily withdrawn from this proceeding, thereby forfeiting its appeal rights. ALAB-851, 24 NRC (October 16, 1986).

3 polymers designated as XLPO and, in particular, is a co-polymer of ethylene and vinyl acetate (EVA). At the hearing before the Licensing Board, applicants' witnesses testified that EVA was not used in any safety-related equipment at Vogtle. Applicants have now learned that XLPO insulation of certain instrumentation cable at Vogtle contains a polymer classified as EVA. Applicants state that they will identify which cable is affected and will subject it to the surveillance program already established and required for safety-related equipment. Applicants also express the view that, in any event, the Sandia conclusions about dose rate effects do not prevent XLPO insulation from performing its intended electrical function. Letter from David R. Lewis to Gary J. Edles, et al. (September 18, 1986). No party commented on applicants' letter. In fact, in its subsequent brief on appeal, GANE expressly eschewed l any appeal in connection with contention 10.1. GANE Appeal l Brief (October 8, 1986) at 16.

I The Licensing Board later issued its concluding decision, LBP-86-41, on the one remaining issue pending before it (contention 10.5, concerning the environmental qualification of solesoid valves used at Vogtle). Although contention 10.1 was unrelated to the subject of LBP-86-41, I the Licensing Board took note of the applicants' September 18 letter and its earlier conclusion in LBP-86-28 about this contention. It then added:

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4 As a condition precedent to the issuance of any operating licenses, it would first have to be initially determined by appropriate authority that the changed information contained in Applicants' letter of September 18, 1986, pertaining to XLPO insulation that contains vinyl acetate, does not lead to a conclusion that is inconsistent with that of this Board on Contention 10.1.

LBP-86-41, 24 NRC at , (slip opinion at 6, 50)

(emphasis added) .

In a January 14, 1987, letter to the Appeal Board's Secretary, counsel for the NRC staff submitted an affidavit containing the results of the staff's review of the information disclosed in the applicants' September 18 letter. The staff concluded that the information does not change its earlier favorable evaluation of the safety-related equipment and corresponding maintenance and

, surveillance program at Vogtle. The staff also concluded l

that the license condition imposed by the Licensing Board was thus satisfied, and it suggested that the Director of NRR was the " appropriate authority" to make this I

determination. Letter from Bernard M. Bordenick to C. Jean Shoemaker (January 14, 1987) and Enclosure. In a letter sent the next day, the Licensing Board Chairman advised staff counsel that the purpose of the license condition imposed by the Licensing Board was "to resolve the matter of the changed information prior to licensing." The letter also stated the Licensing Board's intention "to make known that at the time we set the condition we did not know who

S the appropriate authority may be and we still do not know, for it depends on the course the proceeding will take." The letter implied, however, that the " appropriate authority" was other than the Director of NRR, perhaps "the Appeal Board or the Commission itself." Letter from Morton B.

Margulies to Bernard M. Bordenick (January 15, 1987). Staff counsel replied to Judge Margulies on January 16, 1987, expressing the view that the NRR Director was indeed the appropriate authority to rule on any remaining matters concerning contention 10.1. Staff counsel argued that this contention was "no longer in litigation" because no appeal or motion to reopen was pending on the matter. Letter from Bernard M. Bordenick to Morton B. Margulies (January 16, 1987).

Late in the afternoon of January 16, however, the Director of NRR asked us by telephone to clarify his authority in light of the flurry of correspondence described above. We responded with our January 16 order.

Discussion Under NRC case law, once the Licensing Board issue 6 the partial initial decision in which it disposed of contention i

l 10.1 and a notice of appeal from that decision was filed, l the Licensing Board no longer had jurisdiction to act further with regard to that issue. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),

ALAB-699, 16 NRC 1324, 1327 (1982). Jurisdiction over the

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matter raised by applicants' Septender 18, 1986, letter rests with us. When the Licensing Board issued its concluding partial initial decision on an unrelated issue some months later, it had no authority to impose a license condition in connection with a previously decided matter.2 Inasmuch as the condition is therefore void, the Licensing Board's two partial initial decisions must be read without the condition. In that light, together they provide the authorization necessary for the Director of NRR to issue a low-power operating license for the Vogtle facility. See 10 C.F.R. SS 2.764 (b) , 2. 764 (f) (1) (i) .

But in so ruling, we do not fully endorse the staff's position that only NRR has oversight of the matters here at issue. As noted, jurisdiction over the subjects addressed in the Licensing Board's first partial initial decision --

and thus the matter raised in applicants' September 18 letter -- lies with us. To be sure, contention 10.1 has not been pursued before us on appeal or in any motion to reopen or for a stay of licensing action. The staff overlooks, l

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We suggest no disparagement of the Licensing Board's action, however. As the Board Chairman's letter to staff counsel noted, its purpose was to bring attention to an i

important matter and see that it was resolved prior to any licensing action. It is only the vehicle by which the Board

expressed its concern -- the imposition of a license condition -- that was inappropriate in the circumstances here.

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, however, our long established authority to review sua sponte the entirety of-licensing board decisions, even where no appeal has been taken. See Offshore Power Systems-(Manufacturing License for Floating Nuclear Power Plants),.

ALAB-G89, 16 NRC 887, 890, aff'd on other grounds, CLI-82-37, 16 NRC.1691 (1982). This authority can include the imposition-of license conditions as well. See, e.g.,

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-746, 18 NRC 749 (1983).

It is fully our intention to review the disposition of contention 10.1 (including the related correspondence subsequent to the Licensing Board's decision on this issue) l on the merits, pursuant to our sua sponte appellate review authority, and at the same time we take up GANE's appeal on other. matters. In the meantime, our preliminary review of f

, - the record on contention 10.1 and the newly discovered-

, information discloses no basis for withdrawing or altering the authorization for the issuance of a low-power operating license. >

Our order of January 16, 1987, as explained here, is reaffirmed.

8 It is so ORDERED.

FOR THE APPEAL BOARD b.

C. Je @ Shdemaker Secre&ry to the Appeal Board 1

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