ML20049H021

Partially Withheld Commission Paper Re Application of 10CFR2 App B to Proceeding

ML20049H021
Person / Time
Site:	McGuire, Mcguire
Issue date:	01/13/1981
From:	Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
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References
FOIA-92-436 SECY-81-026, SECY-81-26, NUDOCS 8110070465
Download: ML20049H021 (4)

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January 13, 1981-ADJUDICATORY ISSUE SECY-81-26 (Notation Vote)

For:

The Commissioners From:

Leonard Bickwit, Jr., General Counsel

Subject:

APPLICATION OF 10 CFR Part 2, APPENDIX B, TO McGUIRE PROCEEDING Discussion:

On November 25, 1980 the Licensing Board for the !!cGuire Nuclear Station OL proceeding, acting on a summary disposition motion by Duke Power Co., authorized fuel loading, initial criticality, and zero power physics testing for !!cGuire Unit 1.

The intervenor,

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Carolina Environmental Study Group (CESG) had opposed the motion.

Under the pro-cedures of 10 CFR Part 2, Appendix B, the f

Board's authorization is stayed pending a decision by the Commission.

This is' the first occasion in which the Commission has confronted application of Appendii B.

The present posture of the case is.this:

On April 18, 1979, the Licensing Board issued an initial decision authorizing a full-power OL for McGuire Unit 1.

9 NRC 489 (1979).

By stipulation the parties to the proceeding.had agreed that the following matters were'the sole issues in controversy:

"(1) need for power; (2) cost-bonefit analysis of alter-native generation; (3) seismology; (4) stud-bolts; (5) financial qualifications; and (6) i solar power."

9 NRC 491.

The Board resolved Ir.formatica m $s ierza,:2 c ud all these issues in favor of the applicant.

m atadance mth the f ree6 cd i:Jcrmahon However, the Board stayed its decision, Act, mmchons I

pending issuance of a supplement to the SER F01A_f2-U4 addressing the significance of any unresolved l

generic safety issues.

Because of this stay, the Appeal Board treated the Initial Decision as interlocutory and ordered that the time for filing exceptions (and for Appeal Board sua sponte review) would not commence to run

Contact:

E.

Leo Slaggie, GC NOTE:

This paper is identical to advance copies that were distributed to Comission X-43224

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offices on January 13, 1981.

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until after the Licensing Board had lifted the stay.

Accordingly, the six stipulated issues remain matters in controversy.

CESG has now introduced new contentions in the OL proceeding as well, which emphasize the TMI-related issue of hydrogen generation control at-McGuire, which is a PWR with a thin shell containment.

The Licensing Board has reopened the record to take evidence on these conten-tions.

See Memorandum and Order Regarding CESG's Motion to Roopen Record (November 25, 1980).

The Licensing Board denied that part of Duke Power's motion which sought summary authoriza-tion for low-power (up to five percent full-power) testing, on the grounds that CESG had raised a genuine issue of material fact, i.e.,

whether there is a possibility that hydrogen in quantities exceeding 10 CFR 50.44 design basis could be generated during low-power testing.

In opposing fuel loading, initial criticality, and zero power physics testing, however, CESG appears not to have disputed the applicants' f actual claim that excessive hydrogen genera-tion cannot occur during those activities.

CESG's objection rested primarily on the theory that these activities would be the " camel's-nose-in-the-tent," the camel being the full-l power OL, which CESG opposes.

CESG did not file exceptions or move for a stay of the Licensing Board's decision on the applicant's summary disposition motion.

Pu r-suant to 10 CFR Part 2, Appendix B, the effect of the Board's decision is automati-cally stayed pending Appeal Board and Com-mission review.

The Appeal Board on its own initiative has reviewed the Board's order and the underlying record to determine whether a further stay is warranted.

In ALAB-626, January 6, 1981, the Appeal Board stated:

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Our examination - of the portion of the record pertaining to. the motion for summary disposition - persuades ' us : that the Board below correctly.; granted the.

motion insof ar as fuel loading, initial r

criticality and zero power physics ^

testing are concerned. ' (We.are not called: upon to consider,. and thus. ex-press no opinionHon,'the Board's. denial l

of the balance of the motion).

The Appeal Board concluded' that no further stay was warranted.

The Appeal Board also stated that thb order raises no issues requiring [the Commission's] prompt policy guidance."

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Leonard Bickwit, Jr.

General Counsel SECY NOTE:

The General Counsel has requested the following:

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