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interpretation appears to revert to the intention behind the

rule.

The Minor Interpretations

Even though the staff made no formal response to what the May 1984 Memorandum identifies as minor issues raised by three interpretations the staff makes in the Questions and Answers (see SECY-85-306, Enclosure 5), the staff has been helpful in answering our questions about these interpretations, and we have thus been able to come to some conclusion about each of them.

1. Seismic Qualification of Oil Collection Systems

Section III.0 of Appendix R requires, among other things, that the oil collection systems, which drain off oil leaked from the lube systems for reactor coolant pumps, be designed to provide reasonable assurance that the collection systems will withstand a Safe Shutdown Earthquake (SSE). Section 6.1 of the Questions and Answers says that a basis for an exemption from this requirement would be that the lube oil system was itself designed to withstand the SSE. See SECY-85-306, Enclosure 5, at 26. The reasoning behind an exemption on such a basis would be that if the lube oil system could withstand an SSE, no oil would leak during an SSE, and thus the oil collection system would not be needed during an SSE.

The 1984 Memorandum is concerned that oil leaked before an SSE might accumulate in the collection system and present a fire hazard if the collection system were to break up during The Memorandum therefore recommends that any analysis performed to justify an exemption from section III.O consider whether oil accumulated in the collection system could present a fire hazard in an SSE.

The Memorandum's comments on this section of the Questions and Answers raises no legal issues. The staff is not arguing in that section that section III.O does not require that oil collection systems be seismically qualified. Strictly speaking, the staff is not interpreting section III.O at all, but rather simply setting out one basis for an exemption request. The Memorandum seeks some assurance that an analysis done to determine whether an exemption from this rule should be granted would consider more than just whether the lube oil system was seismically qualified. It is, of course, reasonable to argue that, whatever the design of the lube oil system, the container to which the oil collection system drains the leaked oil (see Appendix R, sec. III.0) should be seismically qualified. However, the answer to which the Memorandum responds does not say that

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the staff would not consider factors other than the design of the lube oil system when deciding whether to grant an exemption from III.0. The answer at issue only lists a basis for a request, not a promise to grant any request made on such a basis.

Moreover, when in the role of commenting on the legal soundness of a staff position, we must assume that the staff will not breach its duty under 10 C.F.R. 50.12 to determine that exemptions will not endanger life or property or the common defense and security and are otherwise in the public interest. We therefore must assume that the staff, when passing on a request for an exemption from sec. III.0, will analyze the hazards associated with the oil collection system, including any hazards associated with the container linked to the system. We note that section 6.2 of the Questions and Answers evidences staff's awareness of the need to assure that such containers are designed to withstand design basis accidents.

One alternative to protecting redundant trains of hot shutdown systems by a one or three-hour barrier is separation of the redundant trains "by a horizontal distance of more than 20 feet with no intervening combustible or fire hazards." Appendix R, section III.G.2.b. We are informed that in the past, the staff has required that any licensee which planned to rely on separation rather than barriers, but also wanted to have some amount of intervening combustibles in the space between the redundant trains, had to apply for an exemption from the "no intervening combustible" requirement of sec. III.G.2.b, no matter how small the amcunt.

The staff now proposes, in secs. 3.6.1 and 3.6.2 of the Questions and Answers, that "no intervening combustible" means "no significant quantity of combustibles." The staff also proposes that a licensee's fire protection engineer make the initial judgment of whether a given quantity of intervening combustible is significant enough to require that the licensee apply for an exemption, and that if the engineer is concerned that the amount of combustibles may not be considered insignificant by an independent reviewer, an exemption is to be requested, or the staff consulted. engineer's judgment that the quantity was insignificant would be subject to later audit by the NRC.

An

The May 1984 Memorandum argues that the presence of intervening combustibles in the separation between redundant trains of hot shutdown equipment lessens the effectiveness of horizontal separation. The Memorandum thus implies that

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the staff should continue to rely on the exemption process, rather than licensees' fire protection engineers, to determine whether a given set of circumstances renders intervening combustibles harmless.

The Memorandum relies on the apparent absence of any qualifier like "significant" in the rule, and if this reliance were clearly justified, we would have to conclude that the staff's interpretation of the phrase "no intervening combustible" was not consistent with the rule, for we have found nothing in the history of the rule to suggest that the absoluteness of the phrase is sometimes to be ignored in the implementation of the rule.

However, it can be argued that the phrase is not so unbending as it may appear. As we noted above, the whole of the pertinent phrase is "no intervening combustible or fire hazard." It could be argued that insignificant amounts of intervening combustible materials do not constitute a hazard and therefore may be permitted under the rule. The strength of this argument depends on whether the drafter of the whole phrase intended to write "no intervening combustibles and no intervening fire hazards," or "no combustible hazard and no fire hazard," that is, on whether "combustible" in the published phrase is a noun or an adjective. If "combustible" is a noun in the phrase, then the rule is, with unavoidable absoluteness, that there will be no amount, no matter how small, of intervening combustibles.

The history of the rule sheds no light on the syntax of the phrase. In the final rule, the word "combustible" is used clearly as a noun about as often as it is used clearly as an adjective. See, e.g., Appendix R, sec. III.K, subsecs. 1-3, 6, 8. In sec. 3.6.2 of the Questions and Answers, the staff uses it, self-defeatingly, as a noun.

In the absence of a decisive history and unambiguous syntax, what will decide this issue is the strength of the non-legal arguments that it is, technically speaking, possible to have insignificant amounts of combustible materials in the horizontal distance being relied on as fire protection, that a licensee's fire protection engineer can be relied on to judge whether a given amount of combustible material is insignificant, and that the requirement that the staff be brought in when the engineer thinks that an independent reviewer might disagree with his or her judgment is protection enough against the possibility of misjudgment by the engineer.

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3.

Oil in Closed Cans as an Intervening Combustible

The interpretation at issue here focuses on another word in the phrase "no intervening combustible." In sec. 3.6.3 of the Questions and Answers, the staff says that oil in closed cans which are in accordance with NFPA 30 is not to be considered an intervening combustible under sec. III.G.2.b, just discussed. The Memorandum says that, given that a fire near an oil-filled can could heat the oil enough to cause it to vaporize, burst the can, and then ignite, the staff should be asked why oil in closed cans need not be considered to be an intervening combustible.

The Memorandum's concern is not with the notion that a properly contained flammable material, such as electrical cable in a metal conduit, ought not to be considered an intervening combustible. Rather the Memorandum apparently does not think that oil can be contained so as not to be a fire hazard. However, we are informed that an oil container meeting code requirement NFPA 30 is vented so that it would not burst during any fire which, assuming an otherwise adequate fire protection program, could occur in the horizontal separation between redundant trains of hot shutdown equipment, and that flammable vapors escaping the vent would not significantly increase the threat caused by the exposure fire that is nearing the container. We therefore see no need to modify the interpretation.

Mr. DEFAZIO. Did you consider a public rulemaking at that time to modify these onerous standards that were so difficult for the industry to comply with? I mean perhaps at that point, as a professional body, you should have determined that well, indeed for at least these five utilities, compliance was impossible and you should contemplate new rulemaking.

Mr. ZECH. I am aware that we had a number of workshops throughout the country in order to explain the rule, give the interpretations, and give as much understanding to the issue as we possibly could.

Mr. DEFAZIO. Who was invited to the workshops?

Mr. ZECH. The public was invited, it is my understanding, as well as the utilities. There are a couple of other memoranda on this subject.

Mr. GEJDENSON. Would the gentleman yield for one moment? Would you check with Mr. Stello and find out how the public was informed of the hearings so they might know of their invitation? Mr. ZECH. I am informed that they believe there was public notice.

Mr. DEFAZIO. We would like if you could provide copies of however the public notice was rendered-legal advertisements, Federal Register, whatever. We would certainly appreciate that.

[EDITOR'S NOTE.-A copy of the public notice may be found in the committee's files of today's hearing.]

Mr. ASSELSTINE. Mr. DeFazio, the staff had issued this generic letter which was really the staff's guidance on how the rule should be interpreted, and then these series of public meetings were scheduled in various parts of the country. And I think they were basically for the purpose of the staff then being able to answer questions, particularly that the industry might have, if there were any remaining questions on what this interpretation meant.

It is interesting to note that Mr. Stello stopped those seminars, or stopped one of them, postponed one of them, so that this reinterpretation document could be done because there were series of things that were really based upon the existing staff interpretations, the generic letter, and then this group of utilities came in and said well, we want to upset the apple cart on that; we want some of these things reinterpreted.

So that seminar program or set of meetings was stopped temporarily while this document was being revised or this new document was being created.

Mr. ZECH. May I also, Mr. Chairman, ask for another document to be entered in the record, dated March 7, 1986?

Mr. GEJDENSON. Without objection.

[EDITOR'S NOTE.-March 7, 1986 Memo for Victor Stello from Samuel Chilk on Staff Requirements-Appendix R.]