ML19274E830
| ML19274E830 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 03/23/1979 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904280103 | |
| Download: ML19274E830 (65) | |
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k UNITED STATES OF AMERICA NUCLEAR REGULATORY COBC41SSION l
BEFORE Tile ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC COMPANY, )
)
(Control Building)
)
(Trojan Nuclear Plant)
)
NRC STAFF'S BRIEF IN OPPOS[ TION TO EXCEPTIONS OF CONSOLIDATED INTERVENORS AND COALITION FOR SAFE POWER ON IliTERIM OPERATION MARCH 23, 1979 79042801o3
4 TABLE OF CONTENTS Page A.
INTRODUCTION AND BACKGROUND.
1 B.
ISSUES ON APPEAL 4
C.
STAFF POSITION 7
I.
An Environmental Impact Statement or an Environmental Impact Appraisal and Negative Declaration Is Not Required in Connection With Authorization of Interim Operation 7
II.
The Licensing Board Was Correct in Not Con-sidering Matt rs Beyond Those Related to the Seismic Capability of the As-Built Control Building and the Effects of the Design Deficiencies On the Seismic Qualification of Safety-Related Equipment 17 III.
The Licensing Board Did Not Err in Refusing to Call Robert Pollard as a Board Witness and Its Actions in this Regard Neither Violated Inter-venors' Procedural Due Process Rights Nor Constituted an Abuse of Discretion.
27 IV.
The Licensing Board Was Correct in Its Accep-tance of the Square Root of the Sum of the Squares Technique for Combining Model Responses and Its Acceptance of That Technique Does Not Invalidate Its Finding That the Facility Will Safely Withstand the SSE.
34 V.
The Licensing Board Was Correct in Finding that the NRC Procedures for Inspection of the Facility After an Earthquake Requiring Shutdown are Adequate.
36 VI.
The Licensing Board Was Correct in Finding That Fire Protection Equipment Will Remain Functional Following an SSE and That Fire Protection Is Adequate For Interim Operation.
40 VII.
The Licensing Board Was Correct in Refusing to Consider the Probability of an Earthquake.
45
v t
_ 11 _
P,_a.g3 VIII.
The Licensing Board Was Correct in Refusing to Consider Seismic Siting of the Trojan Facility.
. 49 IX.
The Licensing Board Was Correct in Finding That Safety-Related Equipmen.t.. Seismically Qualified
. 50 X.
The Licensing Board Was Correct in Refusing to Consider the Environmental Qualification of Safety-Related Equipment
. 56 XI.
The Licensing Board Was Correct in Refusing to Consider Need for Power.
. 58 D.
CONCLUSION 63
- 111 -
TABLE OF AUTHOP.ITIES P,,a33 Cases Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 1), LBP-74-57, 8 AEC 176 (1974)
. 8, 10 Cities of Statesville et al. v. AEC, 441 F.2d 962 (D.C. Cir. 1969)
. 59 Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C.
Cir. 1975)
. 61 City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975).
11 City of Lawrence, Mass. v.
C.A.B., 343 F.2d 583 (1st Cir. 1965).
. 55 City of New Haven v. Chandler, 446 F.Supp. 925 (D. Conn. 1973)
. 14 Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit 2), ALAB-243, 8 AEC 850 (1974).
22 Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit 2), LBP-73-25, 6 AEC 607 (1973)
. 60 Consumers Power Co. (Midland Plant, Units 1 & 2),
ALAB-382, 5 NRC 603 (1977)
. 30, 32, 33 Consumers Power Co. (Midland Plant, Units 1 & 2),
ALAB-235, 8 AEC 645 (1974)..
. 19 Cruz-Casado v. U.S., 533 F.2d 672 (Ct. of C1. 1977)
. 55 Delta Airlines, Inc. v.
C.A.B., 561 F.2d 293 (D.C.
Cir. 1977)
. 55 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-il, 7 NRC 381 (1978)
. 11, 62 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),
ALAB-355, 4 NRC 397 (1976) 6 EDF v. Corps of Engineers, 325 F.Supp. 728 (E.D.
Ark. 1970), dismissed, 342 F.Supp. 1211 (1972),
aff'd, 470 F.2d 289
. 11
s
- iv -
Page EDF v. TVA, 468 F.2d 1164 (6th Cir. 1972)
. 11 Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404 (1975)
. 11, 62 Coldberg v. Kelly, 397 U.S. 254 (1970)
. 27 Grannis v. Ordian, 234 U.S. 385 (1914).
. 28 Green v. McElroy, 360 U.S. 474 (1959)
. 29 Culf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760 (1977)
. 21, 22 Culf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222 (1974)
. 22 Hanly v.
Kleindienst, 471 F.2d 823 (2d Cir. 1972),
cert. den., 412 U.S. 908 (1973) 8, 10, 12, 14 Hartnett v. Cleland, 434 F.Supp. 18 (D.S.C. 1977) 55 Houston Lighting & Power Co. et al. (South Texas Project, Units 1 & 2), ALAB-381, 5 NRC 582 (1977) 18, 62 Illinois Power Co. (Clinton Power Station, Units 1
& 2), ALAB-340, 4 NRC 27 (1976) 6 Izaak Walton League of America v. Schlesinger, 377 F.Supp. 287 (D.D.C.1971) 7 Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 2), ALAB-242, 8 AEC 847 (1974)
. 27 Mathews v.
Eldridge, 424 U.S. 319 (1976) 29 Montgomerv v. Ellis, 364 F.Supp. 517 (N.D. Ala.
1973) 11 Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79 (2d Cir. 1975) 12 NRDC v.
NRC, 539 F.2d 324 (2d Cir. 1976),
vacated & remanded, 434 U.S. 1030 (1978) 12 Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347 (1975) 61
-v-Page Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-249, 8 AEC 980 (1974) 17 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-453, 7 NRC 41 (1978) 11, 59, 62 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857 (1974).
31 Nuclear Reculatory Commission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, 4 NRC 494 (1976).
. 22, 28 Philadelphia Electric Co. et al. (Peach Bottom Atomic Power Statien, Units 2 & 3), LBP-73-32, 6 AEC 724 (1973) 18 Portland General Electric Co. et al. (Trojan Nuclear Plant), Com'n Meao. & Order (unpublished), June 7, 1978
. 32 Portland General Electric Co. et al. (Trojan Nuclear Plant, ALAB-524, 9 NRC (January 30, 1979) 4 Portland General Electric Co. et al. (Trojan Nuclear Plant), LBP-76-32, 8 NRC 413 (1978) 50 Portland General Electric Co. et al. (Trojan Nuclear Plant), LBP-74-10, 7 AEC 191, af f 'd, ALAB-181, 7 AEC 207 (1974).
. 46 Portland General Electric Co. et al. (Trojan Nuclear Plant), 4 AEC 529 (1971) 46 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179 (1978).
6 Public Serivce Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-316, 3 NRC 167 (1976).
. 18, 20, 21, 22 Public Service Co. of New Hampshire et al. (Seabrook Station, Units 1 & 2), ALAB-513 (December 21, 1978)
. 26, 50
- vi -
Page Public Service Co. of New Hampshire et al. (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977)
. 60 Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973).
. 14, 15 Scientists Institute for Public Information, Inc.
- v. AEC, 481 F.2d 1079 (D.C. Cir. 1973)
. 11 Sierra Club v. Froehlke, 359 F.Supp. 1289 (S.D. Tex.
1973), rev'd sub nom, Sierra Club v. Callaway, 499 F.2d 982 (5th Cir. 1974)
. 11 Sierra Civb v. Morton, 400 F.Supp. 610 (N.D. Ca. 1975)
. 11 Society for Animal Rights, Inc. v. S chlesinger, 512 F.2d 915 (D.C. Cir. 1975)
. 11 State of Illinois v.
Butterfield, 396 F.Supp. 632 (E.D. Ill. 1975)
. 11 Stop H-3 Ass'n v. Volpe, 353 F.Supp.14 (D. Hawaii 1972)
. 11 Texas Committee on Natural Resources v. Bergland, 433 F.Supp. 1235 (E.D. Tex. 1977)
. 14 Union Electric Co. (Callaway Plant, Units 1 & 2),
LBP-78-31, 8 NRC 366 (1978), aff'd, ALAB-527 (February 23, 1979)
. 20, 22 Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974)
. 60 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-245, 8 AEC 873 (1974)
. 19, 21 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159 (1974)
. 61 Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, 8 NRC 245 (1978)
. 21, 22 Virginians for Dulles v. Volpe, 541 F.2d 442 (4th Cir. 1976)
. 11
- vii -
Page Statures Atomic Energy Act of 1954, as amended 42 U.S.C. 2011 et seq.
6 42 U.S.C. 2102 (Section 102)
. 59 42 U.S.C. 2133........
. 58 42 U.S.C. 2201....
. 30 42 U.S.C. 2241a (Section 191a)
. 17 42 U.S.C. 2242 (Section 192)
. 60, 61 National Environmental Policy Act 42 U.S.C. 4321 et seg.
. 4, 6, 7, 12, 17, 58, 60 42 U.S.C. 4332 (Section 102) 7 Regulations 10 CFR 92.102.
. 18 10 CFR 92.104.
. 18 10 CFR 82.105.
. 18 10 CFR 92.202.
. 18 10 CFR 52.205.
. 18 10 CFR 52.206..
. 26 10 CFR 82.503.
25 10 CFR 82.700.
. 18 10 CFR 52.718.
. 30, 31 10 CFR 82.720.
30 10 CFR N2.743.....
. 31 10 CFR s2.760a
. 25, 26 10 CFR 82.762.
4, 27 10 CFR 850.91.
. 59 10 CFR Part 50, App. A
. 41, 53 10 CFR Part 51
. 59 10 CFR e51.5
. 4, 7, 15, 16, 59 10 CFR 851.7
. 4, 16 10 CFR Part 100, App. A.
. 46 40 CFR Part 1500 (CEQ Guidelines)
. 4, 7, 17 40 CFR E1500.6
. 13 Federal Register 43 F.R. 23768 (June 1,1978) 1 43 F.R. 23770 (June 1, 1978)
. 18 43 F.R. 34847 (August 7, 1978) 2
t UNITED STATES OF AMERICA NUCLEAR REGUIJ. TORY C0FSIISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC COMPANY, )
)
(Control Building)
)
(Trojan Nuclear Plant)
)
NRC STAFF'S BRIEF IN OPPOSITION TO EXCEPTIONS OF CONSOLIDATED INTERVENORS AND COALITION FOR SAFE POWER ON INTERIM OPERATION A.
INTRODUCTION AND BACKGROUND On May 26, 1978, the Acting Director of the NRC's Office of Nuclear Reactor Regulation issued an Order for Modification of License (Order) directing Portland General Electric Company (licensee) to perform modi-fications to the Control Building at the Trojan Nuclear Plant (facility) to bring that structure into substantial compliance with the require-ments of facility Operating License NPF-1.1!
That Order resulted from the discovery by the licensee and its agent, the Bechtel Corporation, of several design errors with respect to the shear walls in the Control Building at the facility.
The facility had been shutdown since March 17, 1978.
The Order for Modification of License set forth findings that the design errors reduced the seismic capability of the Control Building, that the originally intended seismic capability and safety margins should be substan-tially restored by modifications to that structure, and that operation of the facility with the Control Building in its as-built condition would A! rder for Modification of License, May 26, 1978, published at 43 F.R.
O 23768 (June 1,1978).
% violate the existing facility license.
Based on the related safety evalu-ation by the NRC Staff, however, the Order stated that the Control Building nevertheless had adequate structural capacity to resist the licensed Safe Shutdown Earthquake (SSE) and that the facility operating license r,hould be modified to permit operation, with conditions, in the interim period prior to approval and completion of the modifications required by the Order.
The Order for Modification of License also provided that the licensees could request a hearing and that any person whose interests might be affected by the Order could file a request for hearing setting forth that person's interests and the manner in which those interests might be affected by the proceeding.
In the event that a hearing were ordered, the terms of the Order for Modification of License would not become effective until a date specified in an order made following the hearing.
The Order also set forth the issues to be considered if a hearing were hela.
Several organizations and individuals successfully petitioned for inter-vention and for a hearing.
In addition, the State of Oregon was gran'.ed leave to participate as an " interested State" under the provisions of 10 CFR 82.715(c). Thereafter, a Notice of Evidentiary Hearing was issued. !
Pursuant to the Order for Modification of License of May 26, 1978, that Notice explicitly set forth the scope of the evidentiary hearing as limited to the following two issues:
(1) Whether interim operation prior to modifications required by [the May 26, 1978] Order should be permitted; and
! 43 F.R. 34847 (August 7, 1978).
- (2) Whether the scope and timeliness of the modifications required by [the May 26, 1978] Order to bring the facility into substantial compliance with the license are adequate from a safety standpoint.
By Order dated August 25, 1978, tha presiding Atomic Safety and Licensing Board (Licensing Board) granted a cotion by the licensee to bifurcate the proceeding into two phases, the firat of which would involve consideration of, and a decision on, interim operation price to Control Building modifi-cations and the second of which woulo' constder the proposed modifications theeselves.
In accordance therewith, heatings were held, over a total of 14 hearing days, on the issue of interim operation prior to modifications.
Following the conclusion of the hearing, the licensee, the Staf f and the State of Oregon filed proposed findings. No proposed findings were filed by intervenors. /
3 On December 21, 1978, the Licensing Board rendered its partial initial decision (PID) on the issue of interim operation (LBP-78-40, 8 NRC
).
On the basis of the findings contained therein, the Licensing Board con-cluded that reasonable assurance existed that such operation would not endanger the public health and safety so long as the license amendment authorizing interim operation contained certain specified conditions.
On January 5, 1979, Consolidated Intervenors (represented by Ms. Nina Bell) and the Coalition for Safe Power / (represented by Mr. Eugene Rosolie) 4
-3/ While the Licensing Board requested that proposed findings be filed by all parties, in the express interest of preserving intervenors' rights on appeal in the event they did not file proposed findings, the Licensing Board did not order that findings be filed.
Tr. 2387-89.
-4/ Hereinaf ter referred to as "Intervenors".
4
, filed joint exceptions to the Licensing Board's PID pursuant to 10 CFR 62.762.1 These exceptions totaled 26 in number. On February 6,1979, Interveuors filed a joint brief in support of their exceptions (Joint Brief).
The issucc raised by this appeal, in the order that they are addressed in the Joint Brief, are set forth below.
B.
ISSUES ON APPEAL As set forth in the Intervenors' exceptions to the Licensing Board's PID and_the Joint Brief in support of exceptions, the issues raised by this appeal may be summarized as follows:
I.
Did the Licensing Board err in ruling that neither an environmental impact statement (EIS) nor an environmental impact appraisal and negative declaration is required for interim operation? Specifically (a) Are the environmental impacts of interim operation, in light of the identified design deficiencies, such as to require the preparation of an EIS under the National Environmental Policy Act (NEPA), the guide-lines of the Council on Environmental Quality (CEQ)b or the Commission's regulations?
(Joint Brief, pp. 2-5).
(b) Evan if no EIS is required, did the Licensing Board err by failing to follow 10 CFR 8851.5 and 51.7 with regard to preparation of an environmental impact E Cn January 4, 1979, the Coalition for Safe Power filed a petition for a stay of the Licensing Board's PID pending this appeal. That petition was denied in Portland Cencral Electric Co. (Trojan Nuclear Plant), ALAB-524, 9 NRC (January 30, 1979).
6/
- The CEQ guidelines on the preparation of environmental impact state-ments are set forth in 40 CFR Part 1500.
,e
. appraisal and negative declaration?
(Joint Brief, pp. 6-7).
II.
Did the Licensing Board err in refusing to consider matters other than those related to the seismic capability of the as-built Control Building and the effects of the design deficiencies on the seismic qualification of safety-related equipment?
(Joint Brief, pp. 8-10).
III. Did the Licensing Board err in failing to call Robert Pollard as a Board witness? Specifically:
(a) Did the Licensing Board's failure to subpoena Pollard as a Board witness deny Intervenors their right to procedural due process?
(Joint Brief, pp. 16-19),
(b) Was the Licensing Board's failure to subpoena Pollard as a Board witness'an abuse of discretion?
(Joint Brief, pp. 13-15).
IV.
Should the Licensing Board have required the use of the " absolute sum value" technique to combine modal responres of structures in the Control Building complex and did the Board's failure to do so render its finding that the facility will safely withscand the licensed safe shutdown earthquake invalid?
(Joint Brief, pp. 19-20).
V.
Did the Licensing Board err in finding that the NRC Staff's procedures for inspection of the facility after an earthquake requiring shutdown are adequate to assure safety?
(Joint Brief, pp.20-21).
. VI.
Did the Licensing Board err in finding that fire protection equipment will remain functional following an SSE and that fire protection is adequate for interim operation? (Joint Brief, pp.21, 22).
VII. Did the Licensing Board err in not considering the probability of an carthquake ducing interim operation?
(Joint Brief, pp. 3, 4, 26).
VIII. Did the Licensing Board err in refusing to consider the seismic siting of the Trojan facility?
(Joint Brief, pp. 27-28).
IX.
Did the Licensing Board err in finding that safety-related equipment is seismically qualified? (Joint Brief, p. 28).
X.
Did the Licensing Board err in failing to consider the environmental qualification of safety-related equipment?
(Joint Brief, p. 31).
XI.
Do the Atomic Energy Act of 1954, as amended, the Commission's regulations, or the National Environmental Policy Act require that need for power be considered prior to authorization of interim operation and did the Licensing Board thereby err in refusing to consider need for power?
(Joint Brief, pp. 32-34).
Each of these issues and Intervenors' arguments thereon will be addressed in their turn.-/
7
--7/ Intervenors do not address in their brief, either directly or in-directly, exceptions 15, 16, 18, 20, 22 and 25, although exceptions 15 and 16 are listed in certain headings in the brief.
Accordingly, since exceptions not briefed are abandoned, Public Service _Co.,_of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 &
2), ALAB-459, 7 NRC 179, 203 at n.66 (1978); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397, 413-14 (1976),
the Staff's brief in oppositon to the appeal will address J.e matters raised in the appellants' brief rather than the exceptions which have been filed.
Illinois Power Co. (Clinton Power Station, Units 1 & 2), ALAB-340, 4 NRC 27, 52 at n.39 (1976).
,s
. C.
STAFF POSITION 1.
An Environmental Impact Statement or an Environmental Impact Appraisal and Negative Declaration Is Not Required in Connection With Authorization of Interim Operation Intervenors argue that before interim operation of the as-built facility can be authorized, the NRC has a clear, non-discretionary legal duty to prepare and issue an EIS.8/
The basis for this contention is the assertion that NEPA, the CEQ Cuidelines, and the Commission's regulations all dictate that an EIS be prepared here.
The need to prepare an EIS for any federal action arises from Section 102(2)(C) of NEPA. That section requires that an EIS be prepared for any " major Federal actions significantly affecting the quality of the human environment".
As Intervenors correctly point out, this require-ment is clearly reflected in 10 CFR 851.5(a)(10) of the Commission's regulations. The fact that the particular Commission action in question may be a license amendment does not mean that an EIS is unnecessary.9/
Assuming for the sake of argument that the license amendment involved in
-8/ In this regard, Intervenors cite Izaak Walton League of America v.
Schlesinger, 337 F. Supp. 287 (D.D.C. 1971).
Therein, the Atomic Energy Commission (AEC) proposed to issue an initial operating license, authorizing operation at less than full power, prior to the completion of an EIS, based on the AEC's argument that it had the discretion to comply with less than all of the mandates of the National Environmental Policy Act (42 U.S.C. 4321 et sec.).
The court held that no such discretion resides in the agency.
As will be shown, all of the mandates of NEPA have beer met with regard tc the interim operation of Trojan.
Consequently, Isaak Walton Leacue is inapposite.
E! See, e.g. 10 CFR a51.5(b)(2) v.ich indicates certain license amend-ments which "may or may not reouire preparation of an environmental impact statement, depending upon the circumstances...."
. the instant proceeding is a major federal action,10/ the question then is whether it will significantly affect the quality of the human environment.
To determine if an action will significantly affect the environment, the agency should examine:
(1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area and (2) the absolute quantitative adverse environmental effects of the action itself, including any cumulative harm that results from its contribution to existing uses.
Hanly
- v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972), cert.
den., 412 U.S. 908 (1973).
In the instant proceeding, the federal action is approval of a license amendment that would authorize operation of the Trojan facility with the Control Building in its as-built condition.
Explored in great depth on the record were the effects of the Control Building design deficiencies on the seismic capability of the as-built Control Building and inter-connected structures, on the seismically induced deflections of these structures, on the seismic qualification of safety-related equipment in affected structures and on the ability to bring the facility safely AS! Intervenors' assertion that Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 1), LBP-74-57, 8 AEC 176 (1974) stands for the propo-sition that a license amendment is a " major federal action" (Joint Brief, pp. 2-3) is wrong.
The Licensing Board in that case explicitly stated that it "assum[ed] for purposes of the present analysis" that the license amendment in question was a major federal action.
8 AEC at 183.
Such an " assumption" is not a finding that, in fact, a major federal action was involved.
. to the cold shutdown condition and maintain it in that condition in the event of an earthquake of a magnitude up to and including the licensed safe shutdown earthquake of 0.25g.
Based on the uncontroverted evidence, the Licensing Board properly found that the Control Building in its as-built condition., as well as the interconnected Auxiliary and Fuel Build-ings, have more than adequate structural capability to safely withstand the licensed SSE and that gross failure or collapse of the Control Build-ing or shear walls therein is not a credible consequence of earthquakes up to and including the SSE.
Similarly, the evidence demonstrates, and the Licensing Board found, that safety-related equipment, components and systems necessary for safe shutdown, as well as safety-related piping once modified in accordance with the Licensing Board's order, are adequately qualified to withstand the SSE.1_2,/ The ability to safely shutdown, assure integrity of the reactor coolant system and prevent or mitigate consequences of serious accidents will not be affected by the displace-ments of as-built structures brought about by an SSE.
In sum, the design deficiencies will not affect the ability to safely shutdown the facility for any earthquake up to and including the licensed SSE.
The foregoing matters having been established, it is cicar that this license amendment would permit nothing more than operation of the facility
-11/ PID, Slip Op. p. 30, Paragraph 41.
-12/ PID, Slip Op. p. 40, Paragraph 61.
-13/ PID, Slip Op. p. 43, Paragraph 65 and recoru citations therein.
-14/ PID, Slip Op. p. 43, Paragraph 65; pp.47-48, Paragraph 75.
. as it has operated since the operating license was issued, and while the safety margins for seismic capability are reduced somewhat from those ori-ginally thought to be present, the Board found that these would remain more than adequate to withstand the SSE.
Consequently, it is also clear that interim operation of the as-built facility will not result in environmental impacts that differ in any way from those that were originally assessed, weighed and balanced in the EIS prepared prior to issuance of the operating license.15/
In terms of the first factor from Hanly v.
Kleindienst, there will be no " adverse environmental effects in excess of those created by existing uses in the area" because of this amendment.
Similarly, under the second factor of Hanly v. Kleindienst, there are no
" absolute quantitative adverse environmental effccts" from this license amendment that differ in any way from those previously evaluated and found to be acceptable at the operating license stage.16/
Application of the factors set forth in Hanly v. Kleindienst is wholly appropriate in this case. As the Appeal Board has stressed more than once, and as tie Licensing Board has acknowledged here,17/
- in a license amendment proceeding, a licensing board may not:
... embark broadly upon a fresh assessment of the environ-mental issues which have already been thoroughly considered and which were decided in the initial decision.
Rather, the Board's role in the envfronmental sphere will be limited to assuring itself that the ultimate NEPA conclusions reached
--15/ Staff Exh. 8; PID, Slip Op. pp. 47-48, Paragraph 75.
---16/ For a case in which the Hanly v. Kleindienst test was applied in closely analogous circumstances and a similar result reached, see Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 1), LBP 57, 8 AEC 176, 184 (1974).
---17/ See PID, Slip Op. p.48, n.9.
. in the initial decision are not affected by such new develop-ments....
Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2),
ALAB-291, 2 NRC 404, 415 (1975).
---18/ See also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 46 at n.4 (1978); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 393 (1978).
Intervenors arguments that an environmental reevaluation of Trojan operation must be undertaken are without merit.
The numerous cases cited in support of the assertion that a continuous reevaluation of a project in light of new developments is necessary (Joint Brief, pp. 4, 5) are clearly inapplicable here since they all involved ongoing projects for which an initial EIS had not been completed or for which the initial EIS was clearly inadequate in light of new information.
See, e.g. Montgomerv v.
- Ellis, 364 F.Supp. 517 (N.D. Ala. 1973) (ongoing project with major portions yet to be started, important assumptions in original EIS outdated and no longer valid); Sierra Club v. Frochlke, 359 F. Supp. 1289 (S.D. Tex. 1973), rev'd sub nom., Sierra Club v. Callaway, 499 F.2d 982 (5th Cir. 1974) (case reversed); Stop H-3 Ass'n. v. Volpe, 353 F.Supp. 14 (D. Hawaii 1972) (continuing substantial investment in project prior to completion of EIS); Scientists Institute for Public Information, Inc. v. AEC, 481 F.2d 1079 (D.C. Cir. 1973) (broad agency program with significant environmental effects commenced without EIS); Sierra Club v. Morton, 400 F.Supp. 610 (N.D. Ca.
1975) (construction project completed prior to NEPA but federal license required for operation - EIS necessary if operation has significant environmental impacts); Society for Animal Rights, Inc.
v.
Schlesinger, 512 F.2d 915 (D.C. Cir. 1975) (EIS on use of animal poison in one project may have to be revised prior to future decisica to use poison elsewhere); Vircinians for Dulles v. Volpe, 541 F.2d 442 (4th Cir.1976) (ElS required for revision or expansion of ongoing federal project significantly affecting environment);
EDF v.
Corps of Engineers, 325 F. Supp. 728 (E.D. Ark. 1970),
dismissed, 342 F.Supp.1211 (1972), aff'd., 470 F.2d 289 (where project approved prior to NEPA but uubstantial construction with significant environmental impact not yet commenced, EIS required);
State of Illinois v. Butterfield, 396 F.Supp. 632 (E.D. Ill. 1975)
(EIS required for revision or expansion of ongoing federal project significantly affecting environment); EDF v. TVA, 468 F.2d 1164 (6th Cir. 1972) (where project approved prior to NEPA but substantial construction with significant environmental impact not yet commenced, EIS required); City of Davis v. Coleman, 521 F.2d 661 (9th Cir.
1975) (no EIS prepared prior to road construction that would have significant environmental impacts).
In point of fact, the appro-priate environmental inquiry here is precisely that undertaken by the Licensing Board in accordance with the teachings of the Voctle, Prairie Island and Fermi cases.
. The evidence establishes that the environmental effects of interim operation will not differ from those evaluated at the initial licensing stages. Those earlier NEPA conclusions are unaffected and application of the factors from Hanly v. Kleindienst shows tSat the environmental effects of this amendment are not significant.
Consequently an EIS is not required.
Intervenors appear to assert that the NRC has attempted to avoid consider-ing the environmental effects of this license amendment by labeling the operation which it would authorize as " interim" or " temporary" (Joint Brief, p.2).
Intervenors cite Natural Resources Defense Council, Inc.
- v. Callaway, 524 F.2d 79, 92 (2d Cir. 1975) and NRDC v. NRC, 539 F.2d 824 (2d Cir. 1976), vacated and remanded, 434 U.S. 1030 (1978) for the proposition that allowing " interim" activities prior to completion of an EIS violates NEPA.
Their reliance on these cases is, however, misplaced since each of the actions condemned therein was an action which was part of a larger or ongoing program or project for which an adequate EIS had not been completed. This is far different from the instant case in which the enviornmental impacts of facility operation were long ago extensively assessed in a comprehensive EIS.
More importantly, the action now in question has, in fact, been evaluated and shown to result in no environmental effects differeat from those previously assessed and found acceptable. No attempt is being made to "except [this amendment]
from the PIS process" (Joint Brief, pp. 2, 6).
Rather, the "EIS process" is simply inapplicable.
. Intervenors further argue that the CEQ Cuidelines set forth at 40 CFR 1500.6 indicate the necessity for an EIS when the proposed action has the
" potential" for significantly affecting the environment or when the environmental impact of the action is highly controversial (Joint Brief, pp. 1, 2).
Apparently in an effort to. demonstrate that operation of the facility in its as-built condition has the potential for resulting in significant environmental impacts, Intervenors cite a number of state-ments in the record that purport to show inadequate siting of the facility from a geology and seismology standpoint, a lack of knowledge about the probability of an earthquake, and an absence of any e"aluatioa of the effects of Control Building collapse. Apart from the fact that many of the record citations are taken out of context,- / are mischaracterized in 19 Intervenors' Brief,20/ or have no evidentiary status,- /
21 Intervenors, arguments in this regard are immaterial.
Siting of the Trojan facility is a matter which was considered and resolved in the initial licensing proceedings.
It is not an issue in this proceeding.
As will be discussed
---19/ Intervenors state that witness Andersca's testimony at Tr. 950 shows that analyses of structure responses to carthquakes did not account for vibrational frequency or loads but only considered building dis-placement. A review of the record itself reveals that in the referenced statement, the witness was describing the pure displace-ment analysis that was performed. That analysis was not intended to consider loads or vibrational responses, matters which were addressed elsewhere.
---20/ intervenors mischaracterize a witness' statrment that no catastrophic iallares of structures will occur (Tr. 669) as a belief that no earth-quake will occur.
--21/ Intervenors ctate that the seismic and geological siting of the facility is in question because of an alleged lack of adequate studies and recent seismic activity in the area.
The haces for these claims are referenced limited appearance statements (fr. 1058-59) which are unsupported and have no evidentiary value.
. in Section C.VII. infra, the probability of an earthquake was not con-sidered as a basis for allowing interim operation and the safety and potential environmental effects (or lack of environmental effects) of interim operation are dependent upon the ability of the as-built facility to withstand an earthquake (i.e. a basic assumption is that an earth-quake will occur) not on the low probability of an carthquake's occurrence.
Finally, while it is true that the effects of Control Building collapse were not explored in detail, the uncontroverted evidence shows, simply, that the structure will not collapse even for an earthquake of a magnitude far beyond that which the facility is required to withstand.22/
Conse-quently, Intervenors' arguments as to each of these matters have no bearing on whether an EIS should be prepared.
Similarly, Intervenors' assertion uith regard to the " highly controversial" nature of the impacts of interim operation are without merit.
It is now well established that " controversial", as that term is used in the CEQ Guidelines, means that there is a substantial dispute over the size, nature or effect of the proposed action, not mer21y that there is continued opposition to it.
Rucker v. Willis, 484 F.2d 158, 163 (4th cir. 1973);
Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972), cert. den., 412 U.S. 908 (1973); City of New Haven v. Chandler, 446 F.Supp. 925, 932-33 (D. Conn. 1973); Texas Committee on Natural Resources v.
Bercland, 433 F.Supp. 1235, 1247 (E.D. Tex. 1977).
Any other interpretation wauld amount to surrendering the determination on need for an EIS to opponents of the federal action, no matter how insignificant that federal action
! PID, Slip Op. p.30, Paragrapu 41 and evidence cited therein.
. might be.
Rucker supra. While there is clearly continuing opposition to interim operation of Trojan, there is nothing on the record or other-wise presented by Intervenors that indicates any substantial dispute as to the effects of interim operation.
Finally, the Commission's regulations do not require preparation of an EIS.
10 CFR SSI.5(b)(3), relieu upon by Intervenors for the proposition that an EIS may be necessary, does not even apply to this licensing action.
Read in context, the phrase "less than design capacity", as used in Section 51.5, clearly rc.ers to less than full reprocessing or enrichment capacity for a fuel reprocessing or isotopic enrichment plant, just as "less than full power" refers to less than full design power production capacity for a power reactor.
The reference to " design capacity" in Section 51.5(b)(3) cannot be taken to mean " structural design capability" as implied by Intervenors.
Consequently, since the instant licensing action does not involve issuance of a license to operate at less than full power or less than design capacity, 10 CFR 951.5(b)(3), which only applies to such actions, is inapplicable here.
Instead, the only potentially applicable provisions of 10 CFR 851.5 are Sections 51.5(a)(10), 51.5(b)(2), and Sl.5(d)(4). Section 51.5 (a)(10) requires the preparation of an EIS for any major Commission action significantly affecting the ersironment. As previously discussed, the instant amendment is not in that catr zory.
Section Sl.5(b)(2) stat.is that an EIS may or may not be required for an amendment to a... full power... operating license for a nuclear power reactor... that would authorize a significant change in the types or a significant increase in the amounts of effluents or a significant increase in the authorized power level.
/
. Although the licensing actica involved in this proceeding is an amend-ment to a full power operating license for a power reactor, it does not authorize any change in types or amounts of effluents or any increase in power level.
Section 51.5(b)(2) is, therefore, inapplicable.
Section Sl.5(d)(4) applies to Issuance of... [an] amendment to... [a] facility license
... other than those covered by paragraphs (a) and (b) of this section.
The instant licensing action, not being covered by Sections Sl.5(a) or (b), thus falls within 51.5(d)(4).
Section 51.5(d)(4) provides that, unless otherwise determined by the Commission, actions falling within its domain need not be accompanied by in EIS or by an environmental impact ap,raisal (EIA) and negative declaration (ND). Thus, an EIS is not required under the terms of the Commission's regulations.
In this vein, Intervenors also assert that, even if no EIS is required here, the Licensing Board erred in failing to follow 10 CFR 2351.5(c) 1 and 51.7 which require the preparation of an EIA and publication of an ND in conjunction therewith.
In so doing, Intervenors have totally ignored the clear provisions of Section 51.5(d)(4).
As shown above, that Section, rather than Sections 51.5(b) and (c) and 51.7, applies to the instant licensing action.
As such, the Licensing Board was correct in not requiring the preparation of an EIA and publication of an TID.
---23/ This was erroneously referred to by Intervenors as Section 51.5(d).
(Joint Brief, pp. 6, 7).
. Based on the foregoing, an EIS is not required under NEPA, the CEQ Guidelines or the Commission's regulations.
Nor is the preparation of an EIA and publication of an ND required.
Intervenors' exceptions and their assertions of Licensing Board error in this regard are without merit.
II.
The Licensing Board Was Correct in Not Considering Matters Beyond Thosy Related to the Seismic Capability of the As-Built Control Buile.ing and the 2ffects of the Design Deficiencies On the Seismic Oualification of Safety-Related Eauipment Intervenors contend that the Licensing Board erred in limiting the scope of matters to be considered in this proceeding and that it relied on inapplicable legal authority in so doing.
(Joint Brief, pp. 7-8, 12-13).
They further argt.e that any and all concerns raised by Intervenors should be given "presump tive validity" and that the Licensing Board failed to fulfill its healtit and safety responsibilities when it refused to consider all matters raiset by the Intervenors.
(Joint Brief, pp. 8-10, 12).
A licensing boa';d has only that jurisdiction delegated to it by the Com-mission.24/ A licensing board has no independent authority to initiate any form of adjudicatory proceeding.
Rather, what is required is the prior issuance by some other component of the Commission of one of the
---24/ Atomic En..rgy Act of 1954, as amended, fl91a (42 U.S.C. 2241a).
See also Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-l), ALAB-249, 8 AEC 980, 987 (1974).
,e
. five types of orders or notices specified in 10 CFR 92.700 25/
Houston Lighting & Power Co. et al. (South Texas Project, Units 1 & 2), ALAB-381, 5 NRC 582, 592 (1977).
To determine jurisdiction of the licensing board then, the proper inquiry is an examination of the hearing notice or order governing the case. Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-316, 3 NRC 167, 170-71 (1976); Philadelphia Electric Co. et al. (Peach Bottom Atomic Power Station, Units 2 & 3), LBP-73-32, 6 AEC 724, 716 (1973).
The general issue to be considered in the interim operation phase of this proceeding, as set forth in both the May 26, 1978 Order, which contained a notice of opportunity for hearing,26/ and in the Notice of
~
Hearing published on August 7, 1978,27/ is "[w]hether interim operation prior to modifications required by [the May 26, 1978] Order for Modifi-cation of License should be permitted". The Licensing Board succintly outlined the bounds of its jurisdiction for this interim operation phase of the hearing in its Partial Initial Decision where it stated that:
[ tine scope of this proceeding is limited to the issue of whether interim operation of the Trojan Nuclear Plant with
---25/ These orders or notices are:
(1) show cause order - 10 CFR n2.202; (2) order calling for a hearing on the imposition of civil penalties -
(3) notice of hearing on an application for which a hearing is mandatory - 10 CFR 82.104; (4) notice of opportunity for hearing for an application not covered by Section 2.104 - 10 CFR n2.105; and (5) notice of opportunity for hearing on antitrust matters - 10 CFR 82.102(d)(3).
10 CFR S2.700; South Texas supra.
25/ Order for Modification of License, May 26, 1978, 43 F.R. 23768, 23770 (June 1,1978).
SE! 43 F.R. 34847.
. identified design deficiencies in the Control Building should be permitted prior to such modifications as may be required to bring the facility into substantial compliance with the license.25/
The Licensing Board's actions can neither enlarge nor contract the issues it thus has a duty to decide, Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-235, 8 AEC 645, 647 (1974) and, in a license amendment pro-ceeding such as this, the matters that may be considered are those which arise as a direct consequence or necessary implication of the proposed action (in this instance, issuance of a license amendment that would waive certain license requirements so as to permit operation with the Control Building design deficiencies) and have a sufficient nexus to it to be relevant to the proceeding. Vermont Yank.ae Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-245, 8 AEC 873, 875 (1974).
It is clear from the context of both the May 26, 1978 Order and the Notice of Hearing that the Licensing Board's perception of its authority as indicated in the statement quoted above from the Partial Initial Decision is correct and that the scope of the issue here is to be limited to the propriety of interim operation in view of the identified Control Building shear wall design deficiencies and their effects. Matters beyond these
-! PID, Slip Op. pp. 51-52.
. bounds simply should not and cannot be considered in this proceed-ing.29/
Intervenors attack the Licensing Board's holdings in this regard on the ground that the Board's reliance on Public Service Co. of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-316, 3 NRC 167 (1978) was in error.
In Marble Hill, an intervenor who attempted to raise only antitrust matters before a licensing board designated to hear health, safety and environmental issues was denied admittance to the proceeding.
Intervenors assert that the basis for that decision was the " Commission policy to hold hearings on health and safety separately from antitrust issues" and that it is inapposite to the instant proceed-ing because Intervenors have not attempted to raise antitrust issues (Joint Brief, p. 13).
Intervenors misread the Marble Hill decision. The primary basis for the decision was that antitrust matters were beyond the jurisdiction of, and scope of issues to be decided by, the Licensing
---29/ See, e.g.,
Union Electric Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 8 NRC 366 (1978), aff'd, ALAB-527 (February 23, 1979).
In that case, a notice of hearing on an order to show cause set forth the issues to be considered by the Licensing Board. Those issues related to whether the NRC was impeded in its investigation of con-struction problems at the Callaway Plant, whether the construction permits for the plant should be suspended until the permittee submits to investigations deemed necessary by the NRC and whether the NRC should defer its investigation to an ongoing grievance procedure between the dismissed worker who reported the construction problems and the permittee's contractor.
The worker, who was an intervenor in the ensuing proceeding, contended that the NRC should compel the permittee to reinstate him in his job. The Licensing Board held that such an issue was beyond its jurisdiction as set out in the Notice of Hearing.
LBP-78-31, 8 NRC at 370-71.
Although the Appeal Board did not pass on the mt:ter, it did indicate agreement with the Licensing Bocrd in this regard, acating that "... licensing boards have limited jurisdiction; their authority extends only to matters the Commission places before them".
ALAB-527, Slip Op. p. 36.
. Board as determined from the Notice of Hearing. ALAB-316, 3 NRC at 170-71.
While the Appeal Board discussed, at some length, the Commission's policy to hold separate antitrust hearings, it did so to address the contention that the Licensing Board abused its discretion in refusing to consider antitrust matters, " assuming arguendo" that the Licensing Board has some discretion in that regard.
ALAB-316, 3 NRC at 173.
Intervenors further argue that Marble Hill has been superseded by Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, 8 NRC 245 (1978) and Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760 (1977).
These cases, in pertinent part, dealt with the need to address and resolve generic issues in initial operating license and construction permit proceedings, respectively.
Obviously, in such proceedings, the licensing board's jurisdiction extends to a consideration of,21 matters related to the health and safety and environmental aspects of operation and construction. These cases stand for the proposition that, within the bounds of that broad jurisdiction, a licensing board is to consider generic issuen applicable to the facility in question and assure the satisfactory disposition thereof.30/
This is certainly not inconsistent with Marble Hill and Intervenors' assert'.an that Marble Hill has been superseded by North Anna and River Bend is
---30/ As discussed previously, in a license amendment proceeding such as that involved here, no such broad jurisdiction bounds exist. Vermont Yankee supra. Thus, North Anna and River Bend have no bearing on the Licensing Board's jurisdiction in the instant proceeding and Inter-venors' assertion to the contrary (Joint Brief, pp. 11-12) is without merit.
,e
. unsupported and unsupportabic.31/ Marble Hill is wholly applicable to the instant proceeding and the Licensing Board was fully justified in relying on it for the proposition that the Board cannot " expand the issues beyond those related to the design deficiencies that resulted in the notica of hearing... [ describing] the issues (the Board is] empowered
.to consider".
Intervenors assert that any and all matters which they raised should have been given " presumptive validity".
Intervenors cite no authority for this novel contention and the only apparent basis for it appears to be their discussions of the value of intervention to sound decision-making.
(Joint 22!
Brief, pp. 8-9).
While the cases cited by Intervenors in this regard do discuss the valuable contribution that Intervenors can make to the licensing process, they also establish that matters raised by Intervenors must ha confined to " concrete issues which are appropriate for adjudication in the proceeding".34/ Although intervention may be valuable, its value
--31/ For a case subsequent to North Anna and River Bend in which Marble Hill was cited by the Appeal Board for the sama proposition as that relied upon by the Licensing Board in Trojan, see Unici. Electric Co. (Callaway Plant, Units 1 & 2), ALAB-527, Slip Op. p.36 (1ebruary 23, 1979).
22! PID, Slip Op. p. 49.
33/
--- Nuclear Reculatory Commission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, 4 NRC 494, 518-20 (1976);
Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit 2), ALAB-243, 8 AEC 850, 853 (1974); Culf States Utilities Co.
(River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222, 227-28 (1974).
--34/ River Bend, ALAB-183 supra, 7 AEC at 727, n.
11 (emphasis added).
. does not warrant a presumption that every assertion made by an intervenor is true until it is proven otherwise.
There is no basis for such an approach either in law or in practice.
More importantly, such an approach, as Intervenors would have it here, would require the Licensing Board to entertain and decide matters over which it has no jurisdiction. This cannot be done.
Intervenors list those matters which, they contend, the Licensing Board should have considered but did not.
An examination of the listed items reveals that, in each case, the Licensing Board's treatment of the matter has been mischaracterized by Intervenors, the matter was fully considered dispite Intervenors' protestations to the contrary, or the matter was clearly beyond the jurisdiction of the Board.
Thus, for example, the assertion that Intervenor Fosolie was not permitted to cross-examine with regard to the " survey of August 22" (PGE Exh. 11) is simply inaccurate. The record shows that cross-examination by Mr.
Rosolic was permitted.
Only meaningless questions were rejected by the Licensing Board.35/ Similarly, the assertion that Intervenor Bell was precluded frca asking questions about the Turbine Building is likewise incorrect.
In point of fact, Ms. Bell was permitted to cross-examine on the reanalysis of Turbine Building deflections.
She was not permitted to ask questions on Seismic Category I structures which have no relation-ship to those structures affected by the Control Builc'.ing design defi-ciencies.25! Intervenor's statement that licensee witnesses Holly and 25/ See Tr. 1015-22.
25/ See Tr. 831-33.
. Bresler did not know what would happen if a "high magnitude" earthquake occurred at the plant site is misleading.
In point of fact, the testi-mony was that magnitude alone is not meaningful.37/
Also listed as " matters of concern which should have been examined by the Licensing Board" (Joint Brief, p.9) are the review to confirm the original seismic qualification of safety-related equipment (i.e. that performed at the operating license stage) and the adequacy of fire protection at the plant.
Despite the fact that these matters, on their face, appear to be outside the Board's jurisdiction, they were addressed in considerable detail on the record and are the subject of findings in the PID.
The remaining items of concern listed by Intervenors are those related to coolable geometry of the reactor core, the need for a general, facility-wide safety audit because of alleged problems at the facility in the past, the need for a general reevaluation of the facility in light of some undefined "new information",38/ a review of facility design criteria by
]7/ See Tr. 1466-68, 1476-78.
---38/ While Intervenors' reasons for insisting that a general reevaluation of the facility be undertaken are unclear, they do argue that the Commission's repudiation of the Reactor Safety Study (Rassmussen Report), WASH-1400 brings about a need for reconsideration of some of the original findings of the initial licensing proceeding.
(Joint Brief, p.8).
WASH-1400 was issued in October 1975. nearly a year after the Safety Evaluatien Report (SER) on Trojan operation was issued and less than a month before the SER Supp]cment and the operat-ing license itself were issued in November 1975.
The Staff has been unable to identify any areas in which WASH-1400 was relied upon to support evaluations, analyses, findings or conclusions with regard to the safety of Trojan operation at the time of the initial operating license proceeding and Intervenors have not shown any such reliance.
Thus, apart from any consideration of whether such matters can or cannot be raised in this proceeding, there appears to be no basis for raising them in any event.
~
. John A. Blume Associates which was a party of the Staff's Safety Evalu-ation Report in support of the construction permit for the facility, and alleged cracks in the containment. No nexus between any of these items and the licensing action in question was ever shown and, indeed, there is none. All of these matters are far beyond the jurisdiction of the Licensing Board which is limited to a consideration of the propriety of interim operation in view of the identified Control Building design deficiencies and their effects. Contrary to Intervenors' assertions, '
the Board was totally correct in eschewing a consideration of these matters.
In not considering these ratters, the Licensing Board did not ignore its health and safety responsibilities.
Rather, the Board's action in this regard was a recognition of the scope of its authority. While Intervenors assert that 10 CFR 682.503 and 2.760a confer on the Licensing Board the authority to give " appropriate consideration" to " serious safety matters" even when such matters are not put into controversy by the parties (Joint Brief, pp. 10-11, 12), these regulations are of no aid to Intervenors here.
Section 2.503 is not even applicable to this proceeding but, instead, applies to proceedings on manufacturing licenses for nuclear power plants under Part 2, Subpart E of 10 CFR.
Section 2.760a deals with matters which a licensing board may consider in an operating license proceeding where a hearing is not mandatory.
As a general rule, issues to be con-sidered in such a proceeding are to be confined to those properly admitted into controversy.
In extraordinary circumstances, matters beyond those put into controversy by the parties may be consi'ered.
At the same time,
. there is nothing to indicate that a licensing board is authorized by Section 2.760a to consider additional matters which are outside its jurisdiction and Intervenors cite no authority for such a proposition.
In summary, the Licensing Board did not err in refusing to consider certain matters raised by Intervenors in this proceeding. This does not mean that Intervenors do not have a vehicle through which they can raise serious safety issues, if there are any.39/ Rather, it means that they are in the wrong forum.40/
---39/ Any matters of concern may be raised by means of a request for an order to show cause under 10 CFR 92.206.
--40/ Public Service Co. of New Hampshire et al. (Scabrook Station, Units 1 & 2), ALAB-513, Slip Op. pp.3, 4 (December 21, 1978).
~
. III. The Licensing Board Did Not Err in Refusing to Call Robert Pollard as a Board Witness and Its Actions in this Regard Neither Violated Intervenors' Procedural Due Process Rights Nor Constituted an Abuse of Discretion Near the end of the hearings on interim operation, a written limited appearance statement was submitted on behalf c' Mr. Robert Pollard, a former employee of the Atomic Energy Commission.
Based on concerns raised in the statement, the Licensing Board directed the licensee and the Staff to present additional evidence addressing certain matters set forth in the statement.
Intervenor Bell requested that the Licensing Board subpoena Mr. Pollard as a Board witness but this request was denied.
Intervenors now appeal this denial on the ground that it violated their procedural due process rights and was an abuse of discretion.41/
Intervenors base the claim of a denial of procedural due process primarily on Goldberg v. Kelly, 397 U.S. 254 (1970).
Goldberg involved the question as to whether welfare payments can be terminated without prior notice to, and an opportunity to be heard by, the welfare recipient.
The Supreme Court found that velfare payments were a matter of statutory entitlement for persons qualified to receive them (397 U.S. 261-63) and that prior to their termination, the recipient had to be afforded the
---41/ Intervenors took no exceptions to the refusal by the Licensing Board to subpoena Pollard.
Since a properly perfected appeal under 10 CFR 62.762 requires the filing of exceptions and the submission of a brief confined te a consideration of the exceptions thus filed, Intervenors do not appear to be in technical compliance with the requirements for an appeal on this natter. Normally, an appeal board will not review or pass upon a specific ruling of a licensing board in the absence of a properly perfected appeal.
Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 2), ALAB-242, 8 A2C 847, 848-49 (1974).
. opportunity to present his arguments against termination to the decision-maker.
(397 U.S. 266-70).
In this vein, the thrust of Intervenors' argument appears to be that prior to any decision authorizing interim operation, they have a right to be heard on the matter, that such hearing must be meaningful, and that for it to be meaningful, Pollard must appear as a witness.
Since Intervenors cannot afford to sponsor Pollard, they will not receive the meaningful hearing to which they are entitled unles's his appearance is financed by the NRC.
(Joint Brief, pp. 16-17).
The fault in this argument in twofold.
First, the argument boils down to an assertion, in essence, that Intervenors have some sort of an entitlement to government-financed testimony of a witness of their choice if they are unable to finance the witness' appearance themselves. There is clearly no statutory or regulatory basis for such " entitlement" and, in fact, it would be in conflict with express Commission policy developed after substantial study of the matter of intervenor funding.42/ At bottom, there is simply no basis for classifying NRC financing of intervenor participation as an entitlement to which due process rights attach.
Second, as Intervenors note, the fundamental requisite of due process is the opportunity to be heard.
Grannis v. Ordian, 234 U.S. 385, 394 (1914).
Where government action may seriously af fect an individual, that individual must be afforded an opportunity to challenge the infor-mation on which the government action is based and to confront the
---42/ See Nuclear Rep,ulatory Commission (Financial Assistance to Partici-pants in Commission Proceedings), CLI-76-23, 4 NRC 494 (1976).
. source of that information. Greene v. McElroy, 360 U.S. 474, 496-97 (1959).
In the instant proceeding, the opportunity to meaningfully challenge and confront the information presented to the Licensing Board and to cross-examine the proponents of such information was available in its purest form - an evidentiary hearing.
Intervenors were full parties to that proceeding and were afforded the full procedural rights of parties including extensive opportunity for pre-hearing discovery and the right to present direct evidence at the hearing.
The Licensing Board went to great lengths to assure that the concerns of Mr. Pollard were heard, delaying the close of the hearing to receive Pollard's limited appearance statement after closing arguments had been presented and requiring further evidentiary presentations on matters raised by the Pollard statement.
Procedural due process in administrative proceedings "is not a technical conception unrelated to time, place and circumstances
[D]ue process is flexible and calls for such procedural protection as the particular f.ituation demands...." Mathews v. Eldridge, 424 U.S.
319, 334 (1976).
Intervenors have not presented any basis for the claim that the partictlar situation which obtained in this proceeding required the direct tesuimony of Robert Pollard and, indeed, there appears to be no basis for such a claim. There is no showing that Intervenors were prejudiced in any way by the lack of direct testimony from Pollard. The Licensing Board conducted an extensive inquiry and developed a full and adequate record with regard to all matters raised by Pollard which were arguably within the scope of proceeding.
Due process requires no more and Intervenors were afforded no less.
. In point u. ract, a determination as to whether to subpoena an individual as a " board witness" as requested by Intervenors with regard to Robert Pollard "must and does rest ultimately in the sound discretion of the
~-
tribunal alone".
Consumers Power Co. (Midland Plant, Units 1 6-2),~ALAB-382, 5 NRC 603, 608 (1977).S Intervenors assert that, in refusing to subpoena Pollard here, the Licensing Board abused that discretion. The basis for this claim is the allegation that the Licensing Board's action was a result of its desire to rigidly adhere to " arbitrary timetables" so as to conclude the hearings.
The record itself contradicts this claim.
The evidentiary hearing on interin operation was origiaally scheduled to commence on September 6, 1978 but was postponed and rescheduled for October 23, 1978 when new information 1978.44/ Hearing sessions were held from became available in August October 23 to 25 and October 30 to November 3, 1978. The hearing was
---43/ 42 U.S.C. 2201(c) authorizes the Commission to issue a subpeona to any person it deems necessary in the administration of the Atomic Energy Act, the regulations or Commission Orders.
10 CFR 92.718(b) implements this authority be providing that the presiding officer may issue subpoenas.
10 CFR 82.720 sets forth the procedural re-quirements for issuance of a subpoena pursuant to an application by a party. Contrary to Intervenors' assertion that, under 10 CFR 82.720(a), "the board shall issue subpoenas," (Joint Br:cf p.14),
issuance of a subpoena at a party's request is not automatic but can be conditioned on a showing of general relevance of the testimony sought (Section 2.720(a)). Moreover, fees for attendance of the witness and mileage must be tendered upon service of the subpoena '
(Section 2.720(c), (d)) and "just and reasonable" conditions may be placed on issuance of the subpoena (Section 2.720(f)).
E! PID, Slip Op. p.6.
. then recessed for five weeks, during which ime both the licensee and the Staff filed additional written testimony, in accordance with 10 CFR S2.743 (b), on the matters to be taken up at the next hearing session.
The hearing resumed on December 11, 1973 and, but for Pollard's -limited
appearance statement, would have ended with a closing of the record on 12, 1978.45/ However, when it was informed by Ms. Bell that December Mr. Pollard's written statement would arrive at about mid-day on Decem-ber 12, the Board held the record open for receipt of the statement.--/
46 The Board then extended the hearing for an additional two days and directed that the licensee and Staff present witnesses to testify to certain matters raised by the Pollard statement.
Intervenors participated fully in the extended hearing 47/ just as they had in prior hearing sessions, and, while the Licensing Board acknowledged a desire to conclude the hearings during the week of December 11, 1978,48/ tha record was closed only after it had been fully developed as required for a sound bb PID, Slip Op. p.7.
bb! See Tr. 2613-14.
---47/ Intervenors assert that their " cross-examination was rushed beyond the call of expediency", citing Tr. 2988.
The record at this point reveals nothing more than the Licensing Board's indication to Ms.
Bell, after 17 transcript pages of cross-examination by her, that she should cencentrate on meaningful questions in the time remaining.
This is wholly within the power of the Board in fulfilling its duty to take appropriate measures to avoid unnecessary delay under 10 CFR S2.718(e).
No party has a right to unfettered or unlimited cross-examination and questioning may not be carried to unreason-able lengths.
Northern States Paver Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), s AB-244, 8 AEC 857, 869 (1974).
--48/ The Board indicated that, chough it was reluctant to do so, it would proceed by quorum if necessary.
Tr. 2970.
. decision.
Finally, all parties were given the opportunity to submit proposed findings, either written or oral, and to do so in a piecemeal fashion so as to assure that preparation of such proposed findings would not interfere with hearing preparation.4c/
The Board's actions here do not exhibit a blind adherence to rigid schedules.
Rather, they amounted to an attempt by the Board to comply with the Commission's directive to proceed expeditiously consistent with reaching a sound decision.50/
In Midland supra it was emphasized that calling an individual as a licensing board witness is a matter wholly within the board's discretion
---49/ At the close of the hearing session on November 3, 1978, the Licens-ing Board requested that parties file proposed findings on the matters covered by the October 23 to November 3 hearings by Novem-ber 20, 1978.
Tr.2387-89.
Proposed findings were filed by the licensee, the Staf f and the State of Oregon but not by Intervenors.
Prior to the hearing commencing on December 11, 197P;, the Licensing Board informed the parties that it would also accept proposed findings at the close of the hearings and that such proposed find-ings could be presented either orally or in writing.
Both the licensee and the Staff presented additional proposed findings related to the matters addressed at the hearing sessions on Decem-ber 11 and 12.
Interveaors presented nothing.
Finally, in view of the additional two days of hearings as a result of the Pollard limited appearance statement, the Licensing Board informed the parties that it would accept and consider any further proposed findings submitted by December 19, 1978.
Tr.2994-95.
Again the licensee and Staff filed further findings; Intervenors did not.
Contrary to Intervenors' claim that they had less than a week following the close of the record to file proposed findings, the Licensing Board provided nearly six weeks for Intervenors to prepare and file proposed findings on the matters addressed in the October 23 to November 3 hearings. While the time provided for preparing proposed findings on the December hearings was somewhat less, all parties were operating under the same time contraints in that regard.
--50/ See Portland General Electric Co. (Trojan Nuclear Plant), Com'n Memorandum and Order (unpublished), June 7, 1978, p.3.
. and that a licensirg board is not precluded from taking this action, despite the Commission's policy against funding of intervenors, where the board finds a genuine need for the individual's testimony.
No such need for the testimony of Pollard was shown to exist in the instant proceeding.
In Pollard's area of expertise (electrical instrumentation and controls), the NRC Staff member primarily responsible for AEC/NRC review of Trojan equipcent was presented as a witness.- / The Licensing 51 Board's request to hear, "if at all possible, any additional testimony and experts that have been significantly involved with looking at the qualifications [of safety-related equipment]"- / was, therefore, met 52 without the need to have Pollard testify.
Indeed, in view of the Appeal Board's admonition that a licensing board should act with circumspection in calling an individual as its own witness when intervenors would have sponsored that witness had it not been for financial difficulties,53/
- the Licensing Board would have been delinquent in calling Pollard without a demonstration of need for his testimony. There was no showing of need of any kind here and the Board's refusal to call Pollard was a proper exercise of the discretion entrusted to it.
E1! This witness was Daniel Mcdonald who testified as to the seismic qualification of safety-related equipment at Trojan.
See Tr.
2889-90 for a statement of Mr. Mcdonald's review responsibilities.
5 Tr. 2720, 53/
--- Midland sunra, 5 NRC at 608.
Intervenors indicated at the hearing that they might sponsor Mr. Pollard as a witness (Tr. 489).
' IV.
The Licensing Board Was Correct in Its Acceptance of the Square Root of the Sum of the Squares Technique for Combining Modal Responses and Its Acceptance of That Technique Does Not Invalidate Its Finding That the Facility Will Safelv Withstand the SSE Intervenors assert that the Licensing Board erred in condoning use of the square root of the sum of the squares technique (SRSS) to combine the different modes of earthquake-induced vibration in a structure, that the absolute sum value technique should have been used, and that the use of the SRSS technique renders the Licensing Board's finding that the facility will withstand a C.25g SSE invalid.
The bases for Intervonors' assertions are difficult to ascertain. The original analyses performed prior to the initial licensing of the facility used the absolute sum technique.54/
At the same time, the approved design criteria for the Trojan facility authorized the use of either the absolute sum technique or the SRSS technique 55/ and the Licensing Board explicitly acknowledged that the SRSS technique was used in the reevaluation of the seismic capacity of the as-built Control Building and interrelated struc-tures.56/ The uncontroverted evidence shows that the SRSS technique pro-vides more realistic results than the absolute value technique, is acceptable under current standards, and is entirely proper for use in the reevaluation of the as-built facility.- / While the evidence also 57
---54/ PGE Exh. 6, Attachment 1; PID, Slip Op. p.13, Paragraph 11.
55!
r.
700; Staff Exh. 5, p.16.
T
---56/ PID, Slip Op. p.15, Paragraph 13, item 5.
52! Staff Exh. 5, pp. 7, 16; Tr. 640-41, 1612, 2109.
. shows that the SRSS technique is not as conservative as the absolute value method, there was no reliance of any sort on the conservatisms inherent in the latter technique in reaching the determination that the as-built facility will withstand the SSE.58/
Intervenors' assertion that the " Absolute Sum Value technique coincides with the results of the NRC Staff safety analysis and order dated May 26, 1978 and the conclusion that the OBE for the plant be.08g" (Joint Brief, p.20) is simply wrong.
The Staff found the use of SRSS to be appropriate and acceptable as an examinati.a of the referenced safety evaluation amply demonstrates.'59/ The basis for the Staff's recommendation that the operating basis earthquake (OBE) level for interim operation be set at 0.08g was a determination of the level of seismic loading at which inelastic behavior in a major shear wall would begin, not any consideration of the technique used to combine modal responses.60/
Similarly, Intervenors' claim that use of SRSS amounts to attack on Com-mission regulations and policy is without merit. Neither the absolute
---58/ The Licensing Board listed those conservatisms which it found to exist and to provide additional confidence in the structural capability of the as-built facility.
PID, Slip Op., pp. 26-28, paragraphs 34-38.
Use of the absolute sua value technique for combin'.ng modal responses is not included.
--59/ See Safety Evaluation by the Office of Nuclear Reactor Regulation Relating to the Seismic Design and Analysis of the Control Building (p.5), issued concurrently with the Order for Modification of License of May 26, 1978.
--60/ See PID, Slip Op. pp. 24-25, paragraph 31 and pp.30-31, paragraph 41 and evidence cited therein.
35 -
value technique nor the SRSS technique is a " code conservatism".
Both are acceptable as methods for combining modal responses today and both were acceptable under the criteria approved for Trojan at the initial licensing stages. Moreover, the language from PGE Exhibit 9 quoted by ' ' '
Intervenors with regard to the "need for code conservatisms" (Joint Brief, p.20) does not even relate to modal response combination techniques.
Instead, as the plain language of the quoted text indicates, it dealt with methods for predicting wall capacities.
In sum, the evidence shows that the SRSS technique is appropriate and acceptable. Accordingly, the Licensing Board was correct in accepting its use, and the Licensing Board's findings with regard to the SSE capability of the as-built facility are not invalidated by use of this technique to combine modal responses.
V.
The Licensing Board Was Correct in Finding that the NRC Procedures for Inspection of the Facility After an Earthquake Requiring Shutdown Are Adequate In its order authorizing interim operation, the Licensing Board imposed a condition requiring the facility to be shutdown upon the occurrence of an earthquake which equals or exceeds an OBE level of 0.08g at the plant site. Operation cannot resume in such circumstances without prior NRC approval.61/ Pursuant to a Licensing Board request, the Staff presented testimony outlining the initial inspections that would be conducted by the NRC's Office of Inspection and Enforcement following such a shutdown.
Intervenors now assert that the evidence on this matter is insufficient to support the Board's findings related to the adequacy of the NRC
---61/ PID, Part IV, pp. 55-56.
. inspection. The basis for Intervenors' claim in this regard is that the Staff witness lacked expertise in the areas of geology, seismongy and structural engineering, and that there is no specific written guidance on the methods of inspection or the NRC review process leading to an ~
authorization to resume operation (Joint Brief, pp. 20-21).
In assessing Intervenors' appeal in this regard, one must bear in mind that what was being dcscribed by the Staff witness was the initial actions that would be taken by the NRC.
The testimony makes it clear that the purpose of these initial actions is:
(1) to determine what immediate actions were taken by the licensee and whether additional actions are required to protect the public;
/2) to determine whether there were releases of radio-activity as a result of the seismic event; (3) to verify the operational status of plant systems; (4) to estimate the magnitude of the carthquake based on the raw data from the seismic instrumentation; and (5) to determine whether there was observable damage to the plant and/or equipment.
/
62 These actions are essentially the same as those that would be taken by the Office of Inspection and Enforcement following any significant abnormal occurrence from natural phenomena,63/ and do not require special expertise in geology, seismology or structural engineering.
In point of fact, the S! Staff Exh. 1, pp.ll-12, 13-14.
S Id., p.ll.
~
Staff witness who testified as to these inspection procedures has over 17 years of experience as a reactor inspector- /
64 and conducted the only inspection of a nuclear plant following a siesmic event that has ever been undertaken by the AEC/NRC.65/ He is adequately qualified to testify as to the nature of the initial NFC response after an earthquake and Intervenors' assertions to the contrary are without merit.
Moreover, the lack of a detailed written procedure on the initial NRC inspection following a seismic event is of no moment. The Licensee cannot resume operation following an OBE wit 2t authorization by the NRC.
The function of the Office of Inspection and Enforcement in this regard is to observe first hand the status of the plant and the outwardly visible physical effects of the carthquake and to report its o'aservations to NRC Headquarters aloag with recommendations on further NRC actions.66/
The nature of NRC Staff review prior to a decision on the resumption of operation, and, indeed, the extent of onsite inspections by the NRC Staff is highly dependent upon the severity of the earthquake and the extent of the damage to the t'acility.- / This being the case, detailed 67 written procedures beyond the existing " incident response procedures for
... abnormal occurrences"68/ would be of little value.
64/
-- Staff Exh. 1, Statement of Professional Qualifications of Robert T.
Dodds.
51 Staff Exh. 1, p.1.
55/ Id.., p.15.
d., pp. 11, ' 2, 14-15.
55/ Id.., p. ll.
~
. Through the testimony recounted above, the Sts'f described in detail the initial inspection procedures that would be undertaken following a seismic event. These procedures are directed toward assuring that actions taken immediately after an earthquake are adequate to protect the public
~ and'
~
are only a part of the process leading up to a determination as to whether resumption of plant operation should be authorized.
Intervenors have pointed to nothing in the record that would indicate that these procedures are inadequate for their intended purpose - the determination of what further immediate and long-term actions are necessary to assure plant safety. The Licensing Board was fully justified in its finding that these "NRC Staff procedures in combination with those of the Licensees' personnel for inspection of the facility following shutdown after an earthquake are adequate to maintain safe conditions at the facility, and resumption of operation would not be authorized until the safety of resumed operation was demonstrated".70/
---69/ See Staff Exb. 1, pp. 11-13.
---70/ PID, Slip Op. p.46, Paragraph 71.
s VI.
The Licensing Board Was Correct in Finding That Fire Protection Equipment Will Remain Functional Following an SSE and That Fire Protection Is Adequate For Interim Operation As a result of the Pollard limited appearance statement, the Licensing Board directed that evidence be presented on the facility's fire protec-tion capabilities.71/ Based on the record thus made, the Board found that fire protection equipment in the facility would remain functional following an SSE and that fire protection provisions are adequate for interim operation.72/
Intervenors claim that the Licensing Board erred in this regard.
Intervenors assert that the record does not support a finding that fire protection equipment is seismically qualified.
In this vein, it is true that fire protection equipment is not classified as Seismic Ca*.egory I
---71/ No relationship between the matter at issue in this proceeding -
whether interim operation should be permitted in view of the identi-fled design deficiencies and their effects - and the adequacy of fire protection provisions at Trojan was ever established.
It is the Staff's position that the adequacy of Trojan fire protection is beyond the scope of matters properly considered in this proceeding.
No showing to the contrary has been made by Intr anors and, in the Staff's view, the Licensing Board would have b:-c fully justified in refusing to consider the matter.
---72/ PID, Slip Op. p.39, Paragraph 60, p.51, Paragraph 79.
. equipment (Tr. 2908).73/ Nevertheless, the uncontroverted evidence demonstrates that, based on historical data, fire detection systems, fire protection systems and sprinkler systems designed to the National Fire Protection Association Code, as are those systems at Trojan, will not fail but, absent building collapse, will remain functional following an earthquake (Tr. 2911-13). Moreover, a minimum of five fire brigade members, exclusive of plant operators, are required to be onsite at all times by the Trojan technical specifications (Tr. 2919-20), and manual fire fighting capability, through fire brigade personnel using portable fire fighting equipment, will remain available (Tr. 2910-11).
In the event that a fire protection system in a safety-related area somehow becomes inoperable, the Trojan Technical Specifications require that a fire watch be posted in that area until the system is restored (Tr.
---73/ There are no NRC criteria requiring that fire protection equipment be seismically qualified (Tr.2908-10). The criteria for fire protec-tion provisions are set forth in General Design Criterion 3 (not General Design Criterion 2 as implied by Intervenors - Joint Brief, p.22) of Appendix A to 10 CFR Part 50 (Tr. 2988). That Criterion states:
CRITERION 3--FIRE PROTECTION.
Structures, systems, and components important to safety shall be designed and located to minimize, consistent with other safety re-quirements, the probability and effect of fires and explosions.
Noncombustible and heat resistant materials shall be used wherever practical throughout the unit, particularly in locations such as the containment and control room.
Fire detection and fighting systems of appropriate capacity and :apability shall be provided and designed to minimize the adverse effects of fires on structures, systems, and components important to safety.
Firefighting systems shall be designed to assure that their rupture or inadvertent operation does not significantly impair the safety capability of these structures, systems, and components.
. 2918-19).
In view of this and in the total absence of any evidence to the contrary, the Licensing Board was fully justified in finding that fire prote-tion equipment will remain operable and that adequate fire protection will be available following a seismic event.
Intervenors also assert that fire barriers between redundant systems have not been shown to be adequate (Joint Brief, p.22).
Again, the uncontroverted evidence shows that in the most critical area of the Control, Auxiliary and Fuel Building complex - the cable spreading room - redundant safety-related systems are well separated, either by physical distance or by Marinite fire-resistant barriers that will prevent a fire in one system from spreading to the redundant system for over one and one-half hours (Tr. 2920-21). While the Trojan fire protec-tion review identified some areas where cables were in proximity, these areas, for the most part, did not involve redundant systems or did not involve systems necessary for safe shutdown (Tr. 2990-91).
In the remain-ing areas, fire barriers will be added merely to provide an additional level of protective margin under the very conservative assumptions that a fire involving a very large amount of equipment in an area occurs, that fire protection systems fail, that personnel take no action whatsoever, and that the fire continues for a long period of time (Tr. 2991-92).
There is nothing in the record to indicate that such a scenario could occur or that existing provisions for preventing the spread of fire from one safety system to a redundant system is inadequate and Intervenors
. have not shown otherwise.74/ Contrary to Intervenors' assertions then, existing provisions for fire protection for redundant systems are adequate.
Intervenors argue that there was no evaluation of the possibility of a fire being initisted by an earthquake, and that this alleged failure precludes a determination that there will be adequate fire protection during interim operation.
Intervenors are simply wrong.
First, in point of fact, the fire protection review and fire hazards analysis performed for Trojan assumed, simply, that a fire would occur in various areas throughout the plant.- /
75 The existence of a fire was assumed, independent of any specific cause (Tr. 2859).
Consequently, an explicit determination of the probability that an earthquake would cause a fire is unnecessary and Intervenors' arguments in this regard are not material to adequacy of existing fire protection provisions for the Control, Auxiliary and Fuel Building complex. This conclusion is not affected by the fact that modifications to fire protection systems are to be made by the licensee.76/ The so-called " dedicated shutdown
---74/ Intervenors' statement that "a fire could destroy all the cables of redundant systems necessary for safe shutdown" (Joint Brier, p.24) is without basis and is contrary to the record (Tr.2990-92).
--75/ See Staff Exh. 11, Section 5.
---76/ Intervenors express some confusion over the date by which modifi-cations will be fully impicmented. As set forth in Amendment No.
22 to License NPF-1 for the Trojan facility, Paragraph 2C(S) of the license requires that the modifications be completed by the end of the second refueling outage for Trojan and prior to the return to operation for Cycle 3.
See 'mendment 22 to License No. NPF-1, March 9, 1978 (attached to Staff Exh. 11).
The 1.icense does not state that the modifications will be made by th; " Spring of 1979",
though reference was made to that period in t'.e Staf f's fire protec-tion safety evaluation (see Staf f Exh.11, r. 3-1) as the time at which return to power for Cycle 3 operation was contemplated to occur.
^
. system" to be installed pursuant to the fire protection modifications actually involves the addition of certain decouple svitches in the safe shutdown system so that shutdown from outside the control or cable spreading rooms can be accomplished more quickly (Tr.2862). This modi-fication was proposed by the licensee but would not have been otherwise required by the Staff, and does not involve a change which offers sub-stantial additional protection necessary for the public health and safety (Tr.2968-69).
Rather, this change, along with the other fire protection improvements being undertaken by the licensee, will provide additional fire protection margin and an extra level of defense assuming very conservative fire scenarios (Tr.2991-92).
Second, though an explicit, quantitative analysis of the probability of an earthquake - induced fire was not perfor=ed for Trojan, an evaluation of the likelihood of a fire's affecting safety-related equipment in the Control, Auxiliary and Fuel Building complex was presented. The evidence shews that there are no ignition sources and nothing that is easily ignitible in safety-related areas in these buildings (Tr.2919). Admini-strative controls prohibit the introduction into these areas of combustible materials that could provide a source of fires (Tr.2860).
Equipment whose failure could result from a seismic event and subsequently lead to a fire is not locaced in safety-related areas and fire barriers separate safety-related areas from non-safety-related areas (Tr.2910).
Although there are pipes carrying combustible materials that pass into, and are routed through, the Control, Auxiliary and Fuel Building complex (hydrogen line for volume control tank, propane and other combustible gas lines running
9
- into a laboratory, fuel oil lines for the diacal. generator and diesel-driven auxiliary feedwater pumps), their routing is sech that if they failed and resulted in a fire, safety-related equipment vould not be affected (Tr.2915, 2917).
The single exception to this involves piping in the diesel-driven auxiliary feedwater pump and deisel generator rooms. The piping in those rooms, however, is seismically qualified (Tr.2915-16). These considerations all indicate that a seismically-induced fire in the Control, Auxiliary and Fuel Building complex is not a likely event (Tr.2910). This evidence, which was not controverted, also demonstrates that an earthquake will not initiate a fire that will adversely affect safety-related equipment in these structures or prevent safe-shutdovn.
The Licensing Board was thus fully justified in finding that fire protection for interim operation was satisfacterily established and Intervenors' assertions to the contrary are without merit.
VIl. The Licensing Board Was Correct in Refusing to Consider the Probability of an Earthauake Intervenors contend that the Licensing Board crroneously failed to consider the probability of an earthquake in authorizing interim oper-ation.77/ This assertion is without merit since such consideration is far beyond the scope of issues to be litigated in this proceeding and, in any event, is immaterial to the findings of the Licensing Board with regard to the safety of interim operation.
---77/ No exceptions were filed with regard to this issue.
Consequently, In te rvenors ' appeal as to this matter has not been properly perfected.
See footnote 41 sunra.
_._ The magnitude of earthquakes which a facility must be designed to with-stand, and, indirectly, the probability that a facility will experience an earthquake of a given magnitude 78/ are matters which, of necessity, must be considered and resolved at the construction permit and operating license stages for a particular facility. These matters were, in fact, resolved during the initial licensing stages for Trojan.79/ They are not at issue in this proceeding.80/
Despite the fact that the probability of an earthquake is not properly an issue in this proceeding, Intervenors assert that it should have been explored in detail because the licensee, the Staff and the Licensing Board allegedly placed heavy reliar.ce on the probability of an earthquake in concluding that interim operation would be safe (Joint Brief, pp.26-27).
Intervenors' asserticas in this regard are incorrect.
'atervenors cite various portions of the transcript which allegedly show that Staff and licensee witnesses were unable to support their written testimony but " persisted in maintaining that they could rely on generali-zations concerning the low probability of an earthquake" (Joint Brief, p.26).
An examination of the cited testimony reveals that it does not 28/ See 10 CFR Part 100, Appendix A.
2E! ejl S
Portland General Electric Co. et al. (Trojan Nuclear Plant), 4 AEC 529, 532-33 (1971) (initial decision at the construction permit stage); Portland General Electric Co. et al. (Trojan Nuclear Plant),
LBP-74-10, 7 AEC 191, 194-95, aff'd, ALAB '81, 7 AEC 207 (1974)
(initial decision at operating license stage).
---80/ See Section C.II. supra.
.-. relate to the probability of an earthquake,81/ was mischaracterized by 82/ or shows an absence of reliance on probability.- /
83 Intervenors--
There was no need to present witnesses "to support claims of low proba-bility of seismic events" since there was no rei_ance on any such claim to support interim operation.
On the contrary, there was an expreas disclaimer of any such reliance as the Staff clearly indicated that a deterministic analysis (i.e. one in which earthquakes up to and including
--81/ The testimony of witness Dodds cited at T1.1668 has nothing to do with earthquake probabil' y but, instead, deals with the information that this witness commu.acated to the Staff following Mr. 7 odds' inspection of the Humbolt Bay facility.
---82/ While the testimony cited at Tr.705 and 750 relate to general esti-mates of the probability of an SSE, it is clear from the context that the purpose of this was to give a general description of what an SSE is.
The same is true for Tr.2227 and the Staff written testimony referred to there (Staff Exh.5, pp.30-32).
In both instances, the discussion of carthquake probability was to illustrate the size of earthquakes in a layman's terms.
In neither instance was there any reliance on earthquake probability to support the claim that interim operation would be safe.
The testimony at Tr.1958 must be read in conjur -tion with that at Tr.1956. Therein, licensee witness Brochl catified that because an SSE does not occur very often, the plant cannot actually be tested for its SSE capability.
At the same time, the OBE is a lower level earthquake which provides an opportunity to shut down and evaluate the validity of analysis predictions of the effects of earthquakes.
Again, there is no reliance on earthquake probability as a basis for supporting interim operation.
At Tr.2259 and 2270, reference is made to a statement by Staff witness Herring at Tr.2231-33 that load factors approved at the initial licensing stages for use in designing safety-related struc-tures are implicitly influenced by earthquake probability.
Such probabilities are not an explicit consideration (Tr.2270) and the testimony in this regard does not imply that there was any reliance on the probability of an earthquake in determining the safety rf interim operation.
---83/ At Tr.707, licensee witnesses testified that they were unfamiliar with the Reactor Safety Study, WASH-1400.
The clear implication of this testimony is that there was no reliance on that docunent, not that there was, in fact, reliance as asserted by Intervenors.
.-.e the licensed SSE where assumed to occur) was utilized to assess the seismic capability of the as-built facility (Tr.2228-29).
A review of the Partial Initial Decision reveals a total absence of any reliance on probability by the Licensing Board.
The Licensing Board explicitly found that the as-built Control, Auxiliary and Fuel Building complex and the safety-related equipment therein would safely withstand earthquakes up to and including the licensed SSE.84/ These findings were based on analyses which assumed an earthquake would occur during interim operation.
Intervenors' references to the Reactor Safety Study, WASH-1400, and to the Lewis Report, NUREG/CR-0400 b are puzzling.
Nowhere in any of the testimony or exhibits pres inted by the Staff, the Licensee or the State of Oregon are these documents referenced or relied upon as bases for
---84/ See, e.g.,
PID, Slip Op., Paragraphs 31, 40, 41, 44, 45, 54, and 75.
---85/ Intervenors berate the Staff for a statement made by Staff counsel with regard to the Board's taking official notice of a portion of the Lewis Report.
Specifically, Intervenors argue that counsel's statement at Tr.2228 that he "has severe reservations about saying it (the Lewis Report) should be officially noticed or taken as evi-dence in this proceeding" gave a false impressicn of the Commission's position on WASH-1400 and "its recent review" (Joint Brief, p.27).
To set the record straight, the full statement by Staff counsel was "Without having reviewed it (the Lewis Report) and knowing the contents, I have severe reservations about saying that it should be officially noticed or taken as evidence in this proceeding."
The statement of Staff counsel was made on November 2, 1978, more than two and one-half months before the January 18, 1979 Commission repudiation of WASH-1400 based on the Lewis Report. At the time of Staff counsel's statement, there simply was no Commission position on WASH-1400 in light of the Lewis Report.
Rather than attempting to give any " impression" in this regard, Staff counsel was merely inricating that without knowing the contents of the Lewis Report or the purpose for which official notice was being requested, he was reluctant to agree to its contents being officially noticed.
% establishing the structural capability of the Control, auxiliary and Fuel Building complex or the seismic qualification of equipment therein.
Nor is the Staff aware of any such reliance on WASH-1400 at the initial licensing stages for Trojan. Similarly, there is nothing in the initial decision to indicate that the Licensing Baard looked to WASH-1400 to form a basis for any of its findings. Thus, Intervenors' arguments in this regard are, once again, i= material.
Since probability of an earthquake is not appropriate for consideration in this proceeding and was not relied on as a basis for finding that the as-built facility will safely withstand earthquakes up to and including the licensed SSE, the Licensing Board was correct in eschewing any con-sideration of probability.
VIII. The Licensing Board Was Correct in Refusing to Consider Seismic Siting of the Trojan Facility Intervenors assert that the Licensing Board erred in refusing to consider regional tectonics, geology and seismology in this proceeding (Joint Brief, pp.27-28).
These matters, houever, were fully considered at the construction permit and operating license stages for this facilty.- /
86 They are not within the scope of issues to be considered in this pro--
ceeding and are, in fact, beyond the jurisdiction of the Licensing Board.
These basic facts are not changed by Intervenors' allegation that "there is significant evidence that the Trojan site is not seismically suitable nor did it undergo necessary testing and investigation" (Joint Brief,
-86/ See footnote 79 supra.
,e 9
50 -
p.28).
The "significant evidence", in reality, amounts to nothing more than statements by Ms. Bell made in arguments before the Licensing Board.87/
In any event, Intervenors are, quite simply, in the wrong forum with regard to this matter.- / The Licensing Board was correct in eschewing 88 any consideration of seismic siting.
IX.
The Licensing Board Was Correct in Finding That Safety-Related Equipment Is Seismically Qualified When an earthquake occurs, the vibratory ground motion input at the base of the structure is amplified or modified throughout the structure so that the vibratory response of floors (floor response spectra) above grade level differs from that input at the foundation by the earthquake.
Equip-ment, piping and components in the structure will thus be subjected to varying floor response spectra depending upon their locatiens.89/ Safety-related equipment, piping and components must, therefore, be seismically
---87/ At Tr.2548-50, 58. Bell asked that a document prepared by Ms. Susan Garrett on the original seismic siting of the facility be accepted by the Licensing Board as a statement of Ms. Bell. At Tr.2597, Ms.
Bell alleged siting deficiencies in her closing argument.
It should be noted that similar arguments and a consideration of essentially the same issues were rejected in the Trojan spent fuel pool proceed-ing.
See Portland General Electric Co. et al. (Trojan Nuclear Plant), LBP-78-32, 8 NRC 413, at 415, n.1 (1978).
Ms. Garrett, one of the Intervenors in the spent fuel pool proceeding, petitioned for an order to show cause on the grounds of new geological infor-mation and alleged inadequacies in the original siting studies for the facility. This petition was evaluated by the Acting Director of Nuclear Reactor Regulation who denied it on March 22, 1978.
---88/ See Public Service Co. of New Hampshire et al. (Seabrook Station, Uni a 1 & 2), ALAB-513, Slip Op. pp. 3-4 (December 21, 1978).
---89/ See PID, Slip Op. p. 33, Paragraph 46 and citation therein.
. qualified to assure that they will withstand the floor response spectra to which they are subjected by earthquakes up to and including the llce aed SSE and that they will remain functional during and after such vibratory motion.
New floor response spectra which accounted for the design deficiencies in the Control Building were derived for the as-built Control, Auxiliary and Fual Building complex.90/ Safety-related equipment, components and piping in the building complex, originally qualified prior to issuance of the operating license, was then evaluated to determine whether they remain qualified to withstand the new floor response spectra for the as-built building complex. The reevaluation showed, and the Licensing Board found, that the safety-related equipment, components and piping in the building complex are seismically qualified to withstand the new response spectra, with the exception of certain pipe runs.91/ The Licensing Board imposed a condition requiring these pipe runs to be modified to withstand the revised floor response spectra prior to operation of the facility.- /
92 Intervenors do not challenge the derivation of the revised floor response spectra for the as-built building complex or the reevaluation of equipment, components and piping qualification based on that revised floor response spectra.
Instead, based on allegations in the Pollard limited appearance ES See PGE, Exh.19, pp.2-4; PCE Exh.20, Response to Question 6, pp.1-2; Tr. 2337, 2344-46, 2381; PID, Slip Op. pp. 33-36, Paragraphs 48-54.
---91/ See PID, Slip Op. p. 37, Paragraph 55, pp. 39-40, Paragraphs 60-61
--92/ PID, Part IV, Urder, item (3), Slip Op. p. 56.
. statement, Intervenors attack certain aspects of the original seismic qualification of equipment at the operating license stage.
After the Pollard limited appearance statement was submitted, the Licens-p ing Board directed the licensee and the Staff to present witnesses who could testify as to the seismic qualification of safety-related equipment, the applicable standards related thereto, and the analysis and review methods used to determine equipment qualification. The licensee presented as witnesses those individuals who were directly involved in evaluation of the seismic qualification of equipment in the as-built building complex. These witnesses identified the safety-related equipment involved and its safety function, described the methods used in the evaluation and identified the applicable standards.E The Staff presented witnesses who are intimately familiar with seismic qualification testing of safety-related equipment and who were directly involved in the original Staff review of seismic qualification of equipment used at Trojan.94/
These witnesses described the Staff review procedures for confirming seismic qualification of equipment, testified as to the applicabic standards for Trojan and set forth the bases for their conclusions that safety-telated E
See Tr.2759-94, 2798-2831; PCE Exh.23.
-94/ Staff witness Vincent Noonan is a structural, shock, and vibration expert with extensive experience in the seismic testing of electrical and mechanical equipment.
He was a menber of the NRC audit team which audited the seismic testing of Westinghouse equipment of the type used at Trojan (Tr.2888-89).
Daniel Mcdonald was the primary AEC/NRC reviewer for Westinghouse electrical equipment that was used at Trojan and was also a member of the NRC audit team mentioned above.
Intervenors' assertions that no Staff member who was responsi-ble for review of Trojan equipment qualification or who had direct knowledge of the facility was presented (Joint Brief, pp.29, 30,
- 31) is patently wrong.
equipment in the as-built building complex is seismically qualified.95/
Based on the evidence thus presented, the Licensing Board found that the concerns raised by Pollard with regard to seismic qualification of equipment were satisfactorily resolved and that safety-related equipment is adequately qualified to withstand the SSE.96/
Intervencrs assert that the Safety Evaluation Report (SER) for the Trojan Nuclear Plant, issued in October 1974 "had the seismic, radiation and environmental qualification of safety-related equipment as an open item, to be resolved in the SER Supplement", and that no such resolution was set forth in the Supplement (Joint Brief, p.29).
In point of fact, the SER stated that the review of the " qualification test programs splicable to the Trojan instrumentation systems" had not been completed, referred the reader to SER as 3.10, 3.11 and 8.3.2 for an additional discussion of the matter, and indicated that the results of the review and its applicability to Trojan would be reported in the SER Supplement (SER 93.10).
SER 53.10 states that the seismic qualification program and testing specified and implemented for Trojan meets Staf f requirements and Criterion 2 of 10 CFR Part 50, Appendix A and that the open item with regard to this matter was submissien of documentation that the program was implemented for Trojan instrumentation systems.
SER 53.11 stated that engineered safety features equipment had adequate environ-mental qualification but that documentation of that qualification for EE! r.2886-90, 2893-2908, 2928-43, 2946-68, 2971-2988; Staff Exh.10.
T E5! PID, Slip Op. pp.39-40, Paragraphs 60-61.
. instrumentation systems should be submitted.
SER 68.3.2 stated that certain engineered safety features switchgear relcys were not adequately seismically qualified but that modifications committed to by the Licensee would assure acceptable seismic qualification.
The matter set forth in SER H8.3.2 was actually resolved in that SER section (Tr.2904-2908).
Certain specific problems were identified in the additional review reported in SER Supplement 97.8.
As set forth therein, based on qualification test results, certain relays in a number of Trojan safety systems could malfunction during a seismic event.
Th; problem was resolved in the SER Supplement by imposition of a license
,nd' tion requiring that the faulty relays be replaced with seismically qualified relays or shown by analysis to be acceptable (Tr.2801). There were no unresolved items with regard to Trojan equipment for which the seismic qualification was being investigated as part of a broader generic review (Tr.2977-78) and no other unresolved or incompleted items were identified. The record amply demonstrates that there are no unresolved questions with regard to the seismic qualification of safety-related equipment in the Control, Auxiliary and Fuel Building complex and that such equipment will remain functional in the event of an SSE (Tr.2925-2932, 2946-47, 2993).
Inter-venors assertions to the contrary are unsuppcrted.97/
E1! Intervenors argue, in an earlier part of the Joint Brief, that the Staff review exhibited a lack of regard for proper procedure "which calls for reversal" (Joint Brief, pp.9-10).
No basis for this assertion is presented other than a vague reference to certain parts of the Pollard limited appearance statement.
As indicated previously, the Staff review procedures were outlined in some detail on the record. Nothing presented by Intervenors indicate that such procedures were not followed for Trojan.
The cases cited by Intervenors for the proposition that a failure to follow pro-cedures and policies " calls for reversal" are inapposite.
Each (FOOTNOTE CONTINUED ON NEXT PAGE)
. Intervenors assert that the original seismic qualification of equipment at Trojan was somehow inadequate because it was measured by the standards of the 1973 version of IEEE Standard 344(a<: to which the Staff has had technical objections in the past) rather th-
- )y the updated IEEE Standard 344-1975 (Joint Brief, p.30).
The 1971 vers;on specified single-axis or sine-beat testing of equipment rather than random vibration testing as specified in the 1975 version (Tr.2898, 2933-34). While the random vibration testing method specified in IEEE 344-1975 is more representative of actual seismic input for certain types of equipment, such as relays subject to centact chatter (Tr.2936), it is not necessarily the best or most con-servative test for all types of equipment.
The test methed of IEEE 344-1971 is, in some instances, preferable (Tr.2898-99, 2936-39).
In any event, IEEE 344-1975, which is an update of IEEE-1971, does not invalidate the testing methods sec forth in the 1971 version (Tr.2934).
Nevertheless, a reevaluation of Westinghouse equipment qualified under IEEE 344-1971 was undertaken to determine if requalification under IEEE 344-1975 would be necessary (Tr.2893-94, Staff Exh.10).
Staff Exhibit 10 is the result of that reevaluation and it sets forth a number of conditions that must be met to assure that equipment qualified to IEEE 27/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 0 involved instances where an agency violated its own regulations thereby causing prejudice to an applicant or where an agency took action which departed from established, long-standing policy with-out explanation.
See Cruz-Casado v.
U.S.,
553 F.2d 672, 675 (Ct.
of Claims 1977) (agency action in violation of its own regulations);
Hartnett v. Cleland, 434 F. Supp. 18 (D.S.C. 1977) (agency action in violation of its own regulations); Delta Airlines, Inc.
v.
C.A.B.,
561 F.2d 293 (D.C. Cir. 1977) (unexplained agency action contrary to existing policy); City of Lawrence, Mass. v.
C.A.n, 343 F.2d 583 (1st Cir. 1965) (unexplained agency action contrary to existing policy).
None of these situations obtain here.
~
344-1971 remains qualified in light of the testing methodologies of the 1975 version.
All of the conditions have been met for Trojan (Tr.2899-2900, 2792, 2946-47, 2949-50) and it has been confirmed that the original tests were adequate and, in some cases, were more severe than those of the 1975 version (Tr.2902).
Similarly, no unresolved questions remain on tr.c Westinghouse topical report on seismic qualification of equipment used at Trojan (WCAP 7821) (Tr.2946-47, 2949-52, 2954-55, 2957). Thus, Intervenors' allegations with regard to the inadequacy of seismic qualifi-cation test standards and the seismic qualification of safety-related equipment are contary to the record and without merit.
In summary, intervenors have presented nothing that would indicate that the seismic qualification of safety-related equirment at Trojan is inadequate. The Licensing Board was fully justified in its findings in this regard.
X.
The Licensing Board Was Correct in Refusing to Consider the Environ-mental Qualification of Safety-Related Equipment The Licensing Board eschewed any consideration of the environmental qualification of safety-related equipment.- /
98 Intervenors claim that this action by the Board was error and argue that there is a lack of evidence demonstrating that appropriate standards were used for the environmental qualification of equipment at Trojan (Joint Brief, p.31).
Intervenors completely ignore the fact that there is no relationship, direct or indirect, between the environmental qua'ification of equipment on the E
See Tr.2988.
4 one hand and the Control Building design deficiencies and their effects on safe operation on the other.
Environmental qualif ication of equipment is not an appropriate subject for this proceeding, is outside the scope of the issues to be considered, and is beyond the jurisdiction of this Licens-ing Board.99/ The Board was correct in refusing to consider the matter.
Notwithstanding the lack of materiality of Intervenors' arguments on environmental qualification, certain assertions by Intervenors merit com-ment.
First, it is not true that Staff witnesses did not address the differences between the environmental qualification standards IEEE 323-1971 and IFEE 323-1974. 00/ In point of fact, Staff witnesses testified that IEEE 323-1971, which was not adopted by the Staff, set forth general guidelines on environmental qualification methodologies whereas IEEE 323-1974, which was adopted by the Staff in Regulatory Guide 1.89 (Tr.
2987), expanded on those guidelines, set forth suggested numerical guide-lines for use with regard to testing parameters and included explicit requirements that aging of components be considered (Tr.2973-74, 2981-82).
Second, Intervenors' discussion of relays and relay failures at the Humbolt Bay facility relates to seismic qualification of relays not to environ-mental qualification.
As previously discussed, problems with the seismic qualification of relays at Trojan were resolved in the SER and SER.
---99/ See Section C.II. supra.
100/ Intervenors' claim that Staff witnesses seemed relatively ignorant concerning the differences between the 1971 and 1974 versions of IEEE 323 (Joint Brief, p.31) is not supported by th; transcript a.itations.
The testimony at Tr.2984 does not even relate to the subject and that at Tr.2974 indicates good familiarity with the standards in question.
,e
. Supplement issued prior to issuance of the Trojan operating license (Tr.
2902, 2904-07).
XI.
The Licensing Board Was Correct in Refusing to Consider Need for Power During the course of the proceeding on interim operation, the Licensing Board denied a motion by Ms. Bell that need for power be considered (Tr.
2572), and, in several instances, sustained objections to questions related to need for power.
Intervenors now claim that various parties to the proceeding, including the licensee, raised the issue of need for 101/
power---
and that the Board erred in refusing to co,nsider it (Joint Brief, p.32).
According to Intervenors, the Atomic Energy Act of 1954 (the Act), the Commission's regulations, and NEPA all dictate that need for power be cot.idered here.
Intervenors first argue that Section 103(b) of the Atomic Energy Act of 1954 (42 USC 2133) requires a finding that the activitiec under the license will " serve a useful purpose" and that such a finding must be made here.
The plain language of Section 103(b), however, makes it clear that this requirement applies to the initial issuance of a license.
It is thus not applicable pow, long after the construction permit and operating license have been issued.
101/ Intervenors' assertions in this regard are without merit. The State of Oregon referred to the burden placed on Oregon ratepayers because of continued Trojan shutdown as a casis for its request that the hearing on interim operation commence as soon as possible (Tr.297-299).
The same is true of the licensee's statements in this vein (Tr.2326).
The Bonneville Power Administration's state-ments on regional need for power were made in support of its petition to intervene and the establishment of its interest in the proceeding on interim operation (Tr.144).
In no instance did any of these parties seek to raise need for power as an issue to be adjudicated.
. Similarly, Intervenors' reliance on Cities of Statesville et al. v. AEC,,
441 F.2d 962 (D.C. Cir. 1969) for the proposition that a finding of
" practical value" must be made under Section 102 of the Act is totally misplaced. The " practical value" requirement was deleted from the Act (P.L.91-560, 93, 84 Stat. 1472) in 1t/0, subsequent to Statesville but before either the construction permit or operating license was issued for Trojan.
The Commissiot;'s regulations likewise provide no basis for considering need for power. As indicated by Intervenors,10 CFR 950.91 provides that, in issuing a license amendment, the Commission will be " guided "by the con-siderations which govern the issuance of initial licenses or const cuction permits to the exteat applicable and appropriate" (emphasis added). These considerations require that the Commission be persuaded that the applicant will comply with all applicable regulations, that the health and safety of the public will not be endangered, that issuance of the amendment will not be inimical to the public health and safety, and that any applicable requirements of 10 CFR Part 51 on environmental protection have been satisfied. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 44 (1978).102/ As previously discussed at lengt.1, because of the nature of the interim operation license amendment and its effects, the applicable provision of 10 CFR Part 51 is Section 51.5(d)(4). For actions falling within that section, no EIS or EIA is required.
Since the necessity to consider need for power 102/ The required safety findings are set forth in the PID at pp.52 and 53 of the Slip Opinion.
103/ See Section C.I. supra.
. only arises pursuant to the cost-benefit analysis required by NEPA in an EIS, 04/ no such consideration is required where, as here, an EIS and its attendant analysis need not be undertaken.105/
The cases cited by Intervenor for the proposition that need for power must be considered under NEPA are totally inapplicable since each deals with matters which must be considered before the issuance of a construction 104/
'Need for power' is a shorthand expression for the
' benefit' side of the cost-benefit L11ance which MEPA mandates for a proceeding considering the licensing of a nuclear power plant A nuclear plant's principal ' benefit' is of course the elec-trical power it generates. Hence, absent "some 'need for power', justification for building a facility is problematical.
(citations omitted)
Public Service Co. of New Hampshire et al. (Seabrook 3tation, Units 1 &
2), ALAB-422, 6 NRC 33, 90 (1977).
105/ The Staff has found only one case, ynion of Concerned Scientists v.
AEC, 499 F.2d 1069,1084 (D.C. Cir.1974), where a court has implied that restriking an original cost-benefit balance (and therefore, reconsidering need for power) may be required even though the federal action did not result in significant environmental impacts and did not require the preparation of an EIS. The action in question was a hypothetical future license amendment significantly derating a reactor's authorized power level in such a manner as to upset the original cost-benefit balance. That case clearly differs from the instant case (where the interim operation license amend-ment permits continued full-power operation) and is, therefore, inapplicable here.
Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit 2), LBP-73-25, 6 AEC 607 (1973), cited by Intervenors, does not indicate otherwise.
Therein, Consolidated Edison sought a chang 2 to its temporary, partial power operating license which would authorize an increase in power level from 20% to 50% of full power.
An application for a full power license was pending but th, license had not been issued.
In emphasizing that the appli-cant had presented voluminous data on need for power during the period for which the temporary license was sought, the licensing board noted that the authority for issuing the partial power temporary license derives from Section 192 of the Act (42 U.S.C.
2242).
Section 192(b)(3) expressly requires a finding that operation under the temporary license is essential to assuring the adequacy and reliability of the applicant's power supplies before such a license can be issued.
As to such a license, the Act made a finding on need for power mandatory.
Of course, no such temporary, partial power license is involved in the instant licensing action. '
- permit or an operating license,
! actions which, on their face, require the preparation of an EIS and the balancing of costs and benefits which that entails. No such action is involved here.
Nor does the instant proceeding involve issuance of a temporary operating license under Section 192 of the Act or a license for less than full design power operation.
Intervenors' assertions to the contrary are simply wrong and their reliance on cases dealing with such matters is misplaced.
Intervenors assert that the instant amendment authorizing operation with the Control Buildin alls at less than structural design capacity changes the environmental costs or risks necessitating a re-weighing of benefits of the plant.
Intervenors cite no basis in the record for this assertion and, in fact, it is directly contrary to the uncontroverted evidence and the Licensing Board's findings based thereon that interim operation will result in no environmental impacts that differ in any way from those evaluated at the operating license stage.
The licensee possesses a full-power, full-term operating license and the action here involved is an amendment to that license that would temporarily waive certain requirements so that operation of the facility with identified 106/ E.g. Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C. Cir. 1975)
(initial operating license); Niagara Mohawk Power Corp. (Nine :lile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, 352 (1975)
(construction permit); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 175 (1974)
(initial operating license).
107/ See footnote 105 supra.
108/ PID, Slip Op. pp.47-48, Paragraph 75.
. design deficiencies would not violate the license. Where, as here, it has found that the proposed action would not result in environmental impacts that would differ in any way from those originally identified, evaluated and considered in the cost-benefit balance at the initial licensing stages, nothing in NEPA requires that the same ground covered in those initial licensing proceedings be wholly replowed. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),
ALAB-455, 7 NRC 41, 46 at n.4 (1978).
The Licensing Board properly limited its inquiry to assuring itself that the ultimate NEPA conclusions reached in the initial decisions were unaffected.109/ Georgia Power Co.
(Alvin W. Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404, 415 (1975).
See also Prairie Island supra at 7 NRC 46, n.4, and Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 393 (1978). Thus, the Licensing Board was totally correct in eschewing a consideration of need for power or a restriking of the original cost-benefit balance for the facility.
109/ Intervenors appear to imply that because the NEPA evaluation at the operating license stage was uncontested, it somehow lacks validity or is more susceptible to reconsideration now (see Joint Brief, p.34).
Intervenors cite no authority for such a proposition and, indeed, there appears to be none.
In fact there is some indication to the contrary.
See, e. g., Houstor. Lighting & Power Co. et al. (South Texas Project, Units 1 & 2), ALAB-381, 5 NRC 582 (1977).
- Therein, a petitioner attempted to raise antitrust matters long after the antitrust stage of an ongoing construction permit proceeding had terminated. Despite the fact that antitrust matters had not been previously contested (5 NRC at 584), the Appeal Board held that the petitioner would have to await the operating license stage, at which time antitrust matters would again be considered, or raise the matter pursuant to a request for a show cause order.
Thus, the fact that a litigable issue was not contested when it could have been does not mean that such an issue has special status when an attempt is made to raise the issue later.
9
. D.
COi.'1LUSION Based on the foregoing, Intervenors' appeal, in its totality, is without merit and should be rejected.
The relief requested by Intervenors -
reversal of the Licensing Board's Partial Initial Decision of December 21, 1978 - should be denied in toto and the Licensing Board's decision affirmed.
Respectfully submitted.
i fl' < ("/krc p&'.
Joseph' R. Gray
,dCounsel for NRC Staf Dated at Bethesda, Maryland this 23rd day of March, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENING APPEAL BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC COMPANY, ET AL. )
Docket No. 50-344
)
(Control Building)
(Trojan Nuclear Plant)
)
CERTIFICATE OF SERVICE I hereby certify that "NRC STAFF'S BRIEF IN OPPCSITION TO EXCEPTIONS OF CONSOLIDATED INTERVENORS AND COALITION FOR SAFE POWER ON INTERIM OPERATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of March, 1979:
Alan S. Rosenthal, Esq., Chairman
- Dr. Hugh C. Paxton Atomic Safety and Licensing Appeal 1229 41st Street Board Los Alamos, New Mexico 87544 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. John A. Kullberg Route 1, Box 250Q Dr. John H. Buck, Member
- Sauvie Island, Oregon 97231 Atomic Safety and Licensing Appeal Board John H. Socolofsky U.S. Nuclear Regulatory Commission Robert M. Johnson Washington, D.C.
20555 Oregon Department of Energy and Oregon Public Utility Commissioner Dr. W. Reed Johnson, Member
- Papartment of Justice Atomic Safety and Licensing Appeal State Office Building Board Salem, Oregon U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert Lowenstein, Esq.
Lowenstein, Newman, Reis Marshall E. Miller, Esq., Chairman *
& Axelrad Atomic Safety and Licensing Board Suite 1214 U.S. Nuclear Regulatory Commission 1025 Connecticut Avenue, N.W.
Washington, D. C.
20555 Washington, D.C.
20036 Dr. Kenneth A. McColiom, Dean Mr. David B. McCoy Division of Engineering, 348 Hussey Lane Architecture & Technology Grants Pass, Oregon 97526 oklahoma State University Stillwater, Okinhoma 74074
9
. H. H. Phillips, Esq.
Ms. C. Gail Parson Vice Preside.it., Corporate 800 S.W. Green #6 Counsel and Secretary Portland, Oregon 97206 Portland General Electric Company 121 S. W. Salmon Street Ms. Elizabeth Scott Portland, Oregon 97204 P. O. Box 611 St. Helens, Oregon 97051 William W. Kinsey 1002 N. E. Holladay Atomic Safety and Licensing Board Portland, Oregon 97232 Panel
- U.S. Nuclear Regulatory Commission Ms. Nina Bell Washington, D.C.
20555 728 SE 26th Portland, Oregon 97214 Atomic Safety and Licensing Appeal Panel (5)*
Mr. Stephen M. Willingham U.S. Nuclear Regulatory Commission 555 N. Tomahawk Drive Washington, D.C.
20555 Portland, Oregon 97217 Docketing and Service Saction (4)*
Mr. Eugene Rosolie Office of th'e Secretary Coalition for Safe Power U.S. Nuclear Regclatory Lommission 215 SE 9th Avenue Washington, D.C.
20553 Portland, Oregon 97214
,/ > YL l-f 1
?./ W
/ oseph f/
/lCounge/R. Gray
. l for NRC Staff