ML19309G109
| ML19309G109 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 04/03/1980 |
| From: | Markey A, Scott W, Sekuler S ILLINOIS, STATE OF |
| To: | |
| References | |
| NUDOCS 8005020369 | |
| Download: ML19309G109 (27) | |
Text
Cow 8005020369 UNITED STATES OF AFERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
COMMONWEALTH EDISON CO.
)
Docket Nos.
)
(Zion Station, Units 1 &2
)
Spent Fuel Storage' Pool
)
BRIEF OF THE STATE OF ILLINOIS WILLIAM J. SCOTT Attorney General State of Illinois OF COUNSEL:
SUSAN N. SEKULER ANNE K. MARKEY Assistant Attorney Generals Environmental Control Division 188 W. Randolph Street Suite 2315 Chicago, Illinois 60601 (312) 793-2491 i
TABLE OF CONTENTS Page INTRODUCTION vi 1.
THE APPLICANT DID NOT MEET ITS BURDEN TO SHOW CORROSION AND SWELLING WOULD NOT OCCUR AND THAT SUCH SWELLING WOULD NOT INTERFERE WITH FUEL MOVEMENT, THEREFORE THE BOARD'S CONCLUSION THAT THE SPENT FUEL POOL MODIFICATION WOULD BE SAFELY LICENSED IS ERR 0NEOUS 1
2.
THE BOARD FAILED TO IMPOSE TECHNICAL SPECIFICA-TIONS AND CONDITIONS ON THE LICENSED AMENDMENT THAT PUBLIC HEALTH AND SAFETY REQUIRE 4
3.
THE BOARD'S FINDING THAT A LOSS OF C00LANT IN THE POOL COULD NOT OCCUR FROM NEGLECT WAS AN UNREA-SONED FINDING BASED ON NO EVIDENCE AND IS INAD-EQUATE TO SUSTAIN THE ULTIMATE CONCLUSION 13 4.
THE BOARD ERRED IN CONCLUDING THAT THERE ARE SUF-FICIENT SOURCES OF MAKEUP WATER AND ADEQUATE AC-CESS TO SUCH SOURCES TO ENSURE THAT THE PUBLIC HEALTH AND SAFETY IS NOT ENDANGERED BY BOILING IN THE SPENT FUEL POOL.
16 5.
THE BOARD ERRED IN RULING THAT THE TESTIMONY OF PETER J. CLEARY BE EXCLUDED FROM THE RECORD 18 6.
THE BOARD ERRED IN FINDING THAT THERE IS NO NEED TO CHANGE THE APPLICANT'S EMERGENCY PLAN DUE TO THE PROPOSED MODIFICATION AND SUSEQUENT OPERATION OF THE ZION STATION WITH INCREASED SPENT FUEL STOR-l AGE CAPACITY 24 7.
THE BOARD ERRED IN REFUSING TO REQUIRE GROUNDWATER i
MONITORING l
-11_
TABLE OF AUTHORITIES CASES PAGE Baltimore & Ohio R.
Co.
v.
Aberdeen & Rockfish R.
Co.,
39 3 U.S.
87, 89 S. Ct. 280(1968).
4, 24 Bowser v.
Publicker Iddeststes, 101 F.
Supp. 386 (E.D.
Pa., l'151).
18 Burlington Truck Lines Inc.
v.
United States. 371 U.S.
156, 83 S.
Ct. 239 (1962).
24 Eastburn v.
Ford Motor Co.,
471 F24 21 (5th Cir., 1972) 18 Lo cal 13 8 v. N. L R. B.,
321 F2d 130 (2d Cir., 1963).
16 Melody Music Inc.
v.
F.C.C.,
345 F2d 730 (D.C. Cir., 19 6 5 ).
15 Northeast Airlines v.
C.A.B.,
331 F2d 579 (1st Cir., 1964) 15 Paradise Prairie Land Co.
v.
United States, 112 F2d
, 18 SEC v.
Chenery Corp, 318 U.S.
- 801, 15 63 S.
Ct. 454 (1943).
-iii-CASES _
PAGE Smith v. Hobart Manufacturing Co.,
185 F.
Supp. 751 (E.D.
Pa.,
1960) 18, 19 Vermont Yankee Nuclear Power Corp.
v.
N.R.D.C.,
435 U.S. 519 (1978) 14 Wingo v. Washington, 395 F.2d 633 16 (D.C. Cir., 1968)
York Committee for a Safe Environment v.
N.R.C.,
527 F2d 812 (D.C. Cir. 1975) 14 ADMINISTRATIVE DECISIONS Boston Edison Co. et al (Pilgrim' Nuclear Generating Station' 13' 14 Unit 2) ALAB-479, 7NRC 774 (1978).
Duke Power Co.(Catawba Nuclear Station, 23 Units 1 & 2) ALAB-335, 4 NRC 397 (1976).
Illinois Power Co.
(Clinton Power Station, Units 1 & 2)
ALAB-340'.
23 4 NRC 271 (1976)
Portland General Electric Co.
(Trojan Nuclear Plant) 7, 10 ALAB-531, 9 NRC 263 (1979) i I
-iv-i CASES PAGE Public Service Co. of New Hampshire et.al. (Seabrook Station, Units 1 & 2) ALAB-471, 14 7 NRC 477 (1978)
Tennessee Valley Authority (Hartsville Nuclear Plant, Units la,1b,2a,2b) 23 ALAB-334, 3 NRC 809 ( 1976)
Tennessee Valley Authority (Yellow Creek Nuclear Plant Units 1 & 2) LBP-78-39 2
8 NRC 602 (1978)
Virginia Electric & Power Co.
(North Anna Power Station, Units 1, 2,
3,
& 4) 1 ALAB-256, 1 NRC 10 ( 19 75).
Virginia Electric & Power Co.(North Anna Power Station, Units 1 & 2) 4 l
ALAB-555, 10 NRC 23 (19 79).
STATUTES Administrative Procedure Act of 1966, as amended, 5 U.S.C.
S 500 et. seq., S557(c) (1) (A).
24 Atomic Energy Act of 1954,as amended, 5
42 U.S.C.
S 2232 (a)
FEDERAL RULES OF EVIDENCE 18 Rule 702.
23 Rule QO 3 (18).
23 Rule 803 (24)
_y_
~
REGULATIONS PAGE 1
S50.36.
5, 6
6 S50.54 7
S50.59 6
550.100 14 S50.103 l
-vi-This proceeding arose out of Commonwealth Edison Company's application for an amendment to its license to operate the Zion Nuclear Generating Station.
Commonwealth Edison Company (Applicant) sought to install new compact Boral and stainless steel racks in its cpent fuel pool, increasing the fuel storage capacity.
The State of Illinois (State) was granted leave to intervene and a public'. hearing was held. Most of the State's contentions were admitted; the Board also propounded its own questions for the parties to address at the hearing.
The hearing was held in Zion, Illinois on June 11 through 15'and June 20 through 29,1979.
After the hearing conclud6d' and Ptbposed Findings and Conclusions were submitted by Applicant, Staff and the State, the Board reopened the record, sua sponte, to consider whether the use of type 304 stainless steel would cause intergranular stress corrosion cracking in the Zion pool.
Two sets of affidavits were submitted on the. issue by each party.
l, On February 15, 1980 the Board rendered its Initial Decision, granting Applicant the requested license amandment with two conditions relating to the U-235 loading of the fuel and weight of load carried over the pool.
The State filed its Exceptions to the Initial Decision on March 3, 1980. This Brief is submitted in support of those Exceptions.
_1 THE APPLICANT DID NOT MEET ITS BURDEN TO SHOW CORROSION AND SWELLING WOULD NOT OCCUR AND THAT SUCH SWELLING WOULD NOT INTERFERE WITH FUEL MOVEMENT, THEREFORE THE BOARD'S CONCLU-SION THAT THE SPENT FUEL POOL MODIFICATION COULD BE SAFELY LICENSED IS ERR 0NEOUS Illinois's Exceptions 3, 4 and 5 contest the Board's findings and conclusions in regard to possible swelling and deter-ioration of spent fuel tubes and racks and the effects of such pheumonias on fuel to be placed within those racks.
These issues go the core of Illinois' intervention, for the Brooks and Perkins racks used in spent fuel storage pools other than Zion have been shown by experience to be unreliable and dangerous.
For the Applicant to have sustained its burdens of proof and persuasion, it would have been necessary to adduce sub-stantial and concrete information sufficient to prove that swelling of the racks, due to corrosion, was a null proposition.
This the Applicant did not do.
Under Commission practice the applicant in licensing proceedings always has the ultimate burden of proof.
10 C.F.R.,
52.732.
In addition, the burden of persuasion, the degree to which the applicant must convince the Baord, is influenced by the " gravity" of the matter in controversy.
Virginia Electric And Power Company (North Anna Power Station, Units 1, 2, 3 and 4),
ALAB-256, 1 NRC 10, (1975).
The more serious the matter in con-troversy, the greater the burden of persuasion must be.
The safety of the spent fuel racks is of such gravity that a very high degree of proof should b: required to allow licensing.
l l
l
When, as in the instant proceeding, the matter in contro-versy involves an unresolved safety problem an additional standard must be met.
For the applicant to meet its burden in this regard there must be a full description of the unresolved safety pro-blems and their relationship to the proposed action, a program to resolve the problem must be explained to the Board, and the ap-plicant must offer a rational basis for the licensing not with-standing the problem.
Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), LBP-78-39, 8 NRC 602(1978).
In this proceeding, althoughApplicant did address the problems of corrosion and resultant swelling and impingement on fuel, it did not definitely show that such effects would not occur in the Zion Spent Fuel Pool during the lifetime of the Brooks and Perkins racks.
To the contrary, the Board acknowledges in its Initial Decision that swelling has previously occured in Brooks and Perkins racks.
(Initial Decision at 52).
The true cause of that swelling is unknown, as is demonstrated by the Board's statement that "[the] swelling is believed to have been caused by the accumu-lation of entrapped gas between the Boral and the stainless steel tube."
Initial Decision at 52 (emphasis added).
Thus the Board's conclusion "this kind of swelling should not occur at Zion" (Id.)
is speculative because (1) the cause of the swelling in Brooks and Perkins racks has not been definitely shown and (2) the technique proposed for alleviating the swelling has not been show to be ade-quate.
Although the applicant has proposed, through its expert testimony, some possible solutions to alleviate the problems, no i
test program was described which could serve as a basis for the expert opinions on this matter Virginia Electric And Power Company (North Anna Nuclear Power Station), 10 NRC 23(1979).
The record shows in fact, the full extent of corrosion in Boral/ stainless j
steel tubes is still the subject of experimentation.
(TR. at 1333).
The record also shows that the Applicant, even at the time of hearing, had not settled on a trial rack design, but was altering the design as new tests indicated additional problem areas. (Tr.
at 1342) the Board gave insufficient attention to use problems, accepting conclusory statements by Applicant and staff witnesses as a basis for its own conclusions.
See Baltimore & Ohio Ry. Co.
- v. Aberdeen and Rockfish Ry. 393 U.S. 87, 92 (1968).
The Applicant did not meet its burden to show conclusively that swelling would not occur or that its plan to alleviate swelling was final and effective.
Neither did the Applicant provide within the testimony a rational basis to legitimize the licensing of the spent fuel pool modification despite the adknowledged corrosion and swelling problems and tentative, untested programs proposed to resolve those l
problems.
Therefore, the Board erred in granting the Applicant a license to rerack the Zion pool.
THE BOARD FAILED TO IMPOSE TECHNICAL SPECIFICATIONS AND CONDITIONS ON THE LICENSED AMENDMENT THAT PUBLIC HEALTH AND SAFETY REQUIRE l
The Board granted the Applicant the license amendment that it requested and imposed very few technical specifications or conditions to the license.
No technical specifications or con-dicions whatever' were imposed that pertain to the possibility of e
w-
+
w
-5 corrosion and swelling in the spent fuel storage racks.
The Board has thereby left concern for corrosion, swelling, and loss of neutron attenuation capability, which may become a serious problem over the lifetime of the racks, in the unfettered discretion of the Applicant.
A.
TECHNICAL SPECIFICATIONS AND CONDITIONS ARE THE ONLY MEANINGFUL ENFORCEABLE TOOLS THAT THE COM-MISSION HAS FOR PROTECTING THE PUBLIC HEALTH AND SAFETY IN LICENSES.
Section 182(a) of the Atomic Energy Act, 42 U.S.C. 2232 (a) authorizes the NRC to impose such technical specification as it deems necessary, in order to enable it to find that the license activity will provide adequate protection to the public health and safety.
Such technical specifications become part of the license.
Pursuant to Section 182(a), the NRC has promulgated cate-gories of technical specifications in 10 C.F.R.
Section 50.36(c).
Section 50.36(c)(1) and (2) concern safety limits, limiting safety system settings, limiting control settings, and limiting conditions for operation.
Violation of these specifications may require a licensee to shut down a reactor or to take permitted remedial action.
Violation of other categories of technical specification, however, have less draconian sanctions.
Section 50.36(3)(4) and (5) provide that surveillance requirements relating to testing, cali-bration, and inspection, design features, and administrative controls l
that are necessary to ensure the operation of the facility in a safe manner may also be technical specifications.
Since these speci-
fications are considered a part of the license, any violation may be grounds for modification, suspension, or revocation of the license, pursuant to 10 C.F.R.,
Section 50.100, or for imposition of the statutorily authorized monetary fine.
A condition of a license like a technical specification, becomes a part of that license, and contravention of a condition can subject the licensee to payment of a monetary penalty or to modification, suspension, or revocation of the license.
Standard conditions included in every license are set forth in 10 C.F.R.,
l Section 50.54.
Technical Specifications should be imposed wherever necessary to ensure the operation of the facility in a safe manner.
Such a specification is appropriate when it is likely that safety will require that a certain procedure be followed without change throughout the life of the plant.
These can be surveillance re-quirements relating to testing, calibration, or inspection to ensure that the necessary quality of its system and its components is maintained (10 C.F.R. Section 50.36(c)(3)) or organizational or management requirements, procedures, record keeping, review and audit procedures, or reporting that is necessary to assure safe operation (10 C.F.R. Section 50.36(c)(5)).
In contrast to technical specifications and license con-dicions, commitments of a licensee are voluntary, unenforceable statements of the licensee.
There is no enforcement mechanism to 4
1 ensure that commitments are followed.
The NRC is entitled under its regulations only to know what the licensee commitments are.
10 C.F.R. Section 50.59(a)(1) allows a licensee to make any changes in its facility or in its procedures that it wants, without prior NRC approval, as long as the change does not affect its technical specifications and does not involve an unreviewed safety question.
A licensee is required by 10 C.F.R. Section 50.59(b) only to main-tain a record of these changes, which is available for inspection by the NRC Staff.
Only this reporting requirement is a mandatory obligation upon the licensee that is "just as enforceable as a technical specification."
Portland General Electric Company (Trojan Nuclear Plant), 9 NRC 263, 274(1979).
If the licensee fails to perform or adhere to its commitment, it has not violated any regulation or provision of the Atomic Energy Act.
A licensee can change or abandon a commitment and still not be subject to any express NRC sanction.
Since a commitment has such limited coercive power behind it, it should not be used for any prdvision that may affect the safety of a facility.
To be satisfied with a commitment, that NRC must satisfy itself that the reporting requirement alone will assure "that any significant deviation would... come to light long before an unsafe operating condition conceivably might develop as a con-sequence of it."
9 NRC at 275.
When the recording requirement alone will not assure safety, the provision in question should be a tech-nical specification.
B.
THE STATE'S PROPOSALS MEET THE STANDARD FOR TECHNICAL SPECIFICATIONS OR LICENSE CONDITIONS.
The State proposed four technical specification or con-ditions, which are designed to monitor for and protect the spent fuel storage racks against corrosion, swelling, and loss of neutron attenuation capabiilltyv.
Applicant made commitments as to two of these proposals - the corrosion surveillance plan and the in situ neutron attentuation testing - however, the corrosion surveillance program to which Applicant has committed falls short of what the evidence in the record requires.
(Exceptions 6, 8, and 11).
The other two technical specifications proposed by the State, a dummy fuel assembly test of each tube and a contingency plan in case a boral plate is missing from a tube (Exceptions 9 and 10), were opposed by the Applicant.
1.
Without Careful Surveillance And Testing, Corrosion And Swelling May Seriously Impair The Operation Of The Racks Over Their Lifetime The State has already argues in this brief that the Ap-i plicant has failed to sustain its burden of proof that corrosion and swelling will not degrade the tubes and spent fuel storage racks proposed for the Zion spent fuel pool.
The State's cross examination and its affidavits demonstrated that corrosion and swelling are real possibilities in the Zion spent fuel pool.
_9_
The Board ignored this evidence.
Nonetheless, the Board still found that corrosion and swelling may in fact occur.
The Board concluded that surveillance and monitoring are necessary in the Zion spent fuel pool.
"Unfortunately", the Board found,
" visual inspections and radiation monitoring detect only advanced stages of cladding degradation."
Initial Decision at 51.
The Board adopted the conclusion of one of Applicant's witness that
" surveillance should continue to be provided for the spent fuel over whatever time period the spent fuel will be stored."
Initial Decision at 51.
2.
The Mere Reporting Required For A Commitment Will Not Provide Protection Against Corrosion And Swelling Problems While the Board found that corrosion surveillance is important and necessary in the spent fuel pool, the surveillance program was left an Applicant commitment and was not made a technical specification.
The Baord's reasoning rejecting the corrosion pro-gram as a technical specification reflects their misunderstanding of the nature of commitment and technical specifications.
l The Board stated that the Applicant "should not be relieved of this [ corrosion surveillance] commitment without careful review l
by the Staff based on the facts at that time."
Initial Decision l
at 63.
But Applicant can relieve itself any time of a commitment simply by reporting to the NRC staff that it no longer adheres to the commitment.
The Staff cannot then demand that the commitment l
~
be reinstated, nor can it penalize Applicant for failing to follow the commitment.
To require that the commitment be followed, the Staff must initiate proceedings to make the commitment into a technical specification or a license condition.
There is no assurance that the surveillance will be done unless the surveillance is embodied in a technical specifi-cation.
Since the program is now merely a commitment, Applicant is obligated only to report whether it changes or drops the program entirely.
This recording requirement does not protect the public against the potentially serious consequences of corrosion and rack degradation.
Applicant's own expert agrees that the surveillance program must continue over the life of the spent fuel storage racks.
As long as the surveillance is done, it is likely that any damage or rack degradation will be detected in time to take remedial steps.
There may be no sign of corrosion in the spent fuel storage pool for years because, as the Board pointed out, visual inspections detect only advanced stages of cladding degradation.
If no problem appeared for ten years and Applicant dropped the surveillance pro-gram, then Applicant, the Staff, and the public would be helpless when the problem first comes to light after twenty or thirty years.
Without the information and advance warning available from the sur-veillance program, rack degradation will not be detected until the fuel assemblies are stuck in the tubes or a rack falls apart.
Con-1 sequently, the reporting requirement will not assure for corrosion I
problems "that any significant deviation would.. c;ee to light long l
before an unsafe operating condition conceivably might develop as a consequences of it." Portland General Electric Co., 9 NRC at 275.
Despite the critical importance of corrosion surveillance, the Board rejected the only assurance that surveillance would con-tinue:
making surveillance a technical specification.
This would impose no hardship upon the licensee.
The Board has already found that the surveillance program must continue over the lifetime of the racks.
It is, therefore, highly unlikely that there will be any need on justLication to relieve Applicant of the program.
At minimal expense and effort, the surveillance program provides an important assurance of the safe operation of the spent fuel pool and thereby an important protection to the public health and safety.
The corrosion surveillance program that the NRC should require as a technical specification should cover more than that proposed by the Applicant.
The Applicant's program has no standards and no remedial flexibility.
It does not define in advance what kind, degree or location of corrosion or cracking will threaten the racks, and what actions will be considered when a problem arises.
l Without advance definition of problem situations, Appli-cant will be able to attempt to explain away or overlook problems when they arise.
It will be able to ignore any warnings that periodic inspection of the coupons yield (if, indeed, it continues to inspect).
Without an extra spent fuel rack stored at Zion, Ap-plicant has little. flexibility in responding to corrosion problems.
Should corrosion appear on the coupons after the pool is filled with spent fuel, it will be more difficult and dangerous for Ap-plicant to examine destructively a rack that.is in use because its
fuel assemblies must be shipped off site.
In failing to define corrosion problems that will require action and to store an extra rack, Applicant shows that it is only paying lip service to the idea of corrosion surveillance.
The Board found that monitoring was important, therefore, the possiblity must be taken seriously that monitoring will uncover a problem.
But Applicant's program does not deal with these potential con-sequences.
The Board erred in denying other technical specifications sought by the State.
The in situ neutron attenuation test will provide valuable information about the initial atteruatictirapabilityi:y of the racks.
Should Applicant drop this testing, the opportunity to establish this baseline condition will be lost.
The commitment record keeping requirement will not assure that alti; potentially hazardous situation does not occur.
The dummy fuel assembly test would assure the initial structural soundness of the tubes.The requirement that a boral de-ficient tube be plugged is vital to prevent inadvertent or inten-tional insertion of a fuel assembly.
Without these provisions, fuel assemblies may be placed in boral deficient tubes or stick in structually deficient tubes.
All of these significant tests and programs are important to safe operation of the spent fuel pool.
There are no foreseeable circumstances that would justify changing any of these:
the testing will be completed at the time the racks are installed, and the mon-itoring program, to be effective, cannot be dropped for as long as une racks are in use in the pool.
These provisions should, there-fore, be made part of the license amendment as technical specifications.
4 i
THE BOARD'S FINDING Thl.T A LOSS OF COOLANT IN THE POOL COULD NOT OCCUR FROM NEGLECT WAS AN UNREASONED FINDING BASED ON NO EVIDENCE AND WAS INADEQUATE TO SUSTAIN THE ULTIMATE CONCLUSION.
Illinois ' first exception is taken to the conc 1isory finding of the Board that:
(t]here is no reasonable basis for the witness's (sic) speculation that such an accident might be allowed to occur through neglect.
Further, his concern that during a war or other period of social disruption the applicant might " simply turn off the cooling system and walk awa;r" from the generating station is without basis (Initial Decision at 44.)
Although the Board may have found the witness to be less expansive than it wished in explaining how a LOCA, or other accident, might occur through such neglect, the Board did not fulfill its duty to explore fully the question once it was raised by the State's witness.
There can be no doubt that the testimony in the record sustains burden of the State as an intervenor to go forward and pre-sent a reasonable factual assertion that raised a question requiring resolution.
The burden of answering the question falls on the Applicant and Staff.
Boston Edison:: Co.
(Pilgrim Nuclear Generating Station) 7 NRC 774(1978).
Once an injury has been raised by an in-1
tervenor, the burden of proof in the adjudicatory context again shifts to the applicant.
Public Service Co. of New Hampshire, (Seabrook Station) 7 NRC 477, 489 at n.8(1978).
The intervenor l
need make no affirmative evidentiary showing other than to make a showing sufficient to require.uasonable minds ta inquire further.
Vermont Yankee Nuclear Power Corp v.
N.R.D.C.,
435 U.S. 519,(1978).
Even the burden of going forward that normally falls on an inter-venor has been questioned when the information is in the hands of the Staff or applicant.
York Committee for a Safe Environment
- v. NRC. 527 F.2d 812 at n.12(D.C.Cir.1975).
Not only does the burden of proof and persuasion rest with the applicant, but an additional burden is placed on licensing boards, for they are independent tribunals presumed to operate as a " check" on whether staff and applicant have properly assessed all relevant and signi-ficant problems.
Boston Edison Co.,
supra at 793. "[T]he Commis-sion itself has made clear that in contested proceedings a Board has not only the right to but is expected to do more than simply resolve the litigants' contentions." Id. In these cases the Board i
i is expected to assure itself by inquiryy into areas where it per-ceives problems. M.
l l
l In the instant case the Board inappropriately dismissed 1
I essential safety questionsyperemptorily and without adequate ex-planation.
Initial Decision at 44.
In defense of its position that it is unnecessary to censider neglect due to the catastrophic event, the Board references 10 C.F.R. 550.103. (Initial Decision l
at 44, n.133).
However, official notice of a regulation that pro-
.m,,
vides emergency powers to Congress does not satisfy the need to make proper inquiry-into the issue.
That inquiry must be made by requiring the pargr who has the burden of proof in the proceeding to provide evidence.
The Board also has failed to meet its burden to arti-culate clearly rational reasons for ruling.
Northeast Airlines
- v. CAB 331 F.2d 579 (1st Cir.1964).
It is a basic premise of ad-ministrative law that "the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained."
SEC v. Chenery Corp.318 U.S. 80, 94, 63 S.Ct. 454, 462(1943).
It is not enough for an agency simply to make a great number of findings or to render a bulky decision.
The agency must make findings and give reasons for its resolution of the pertinent, vital questions in contention among the parties.
See e. g., Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C.Cir.1965).
The Board's finding on catastrophic emmes give.
no guidance to the Appeals Board, the reviewing court, or I
the parties in judging whether the State's evidence and argument l
have been properly disregarded in favor of the Applicant's and l
Staff's case.
~
l It is particularly disconcerting that the Board's off-hand ruling in this matter indicates a general attitude of indiffer-ence towards the State's claims.
The remarks of the Court in Local 138 v. NLRB, 321 F.2d,
'_38, 138 (2d Cir.1963) are directly applicable:
"I am disturbed by what seems a rather frequent practice of some of the Board's examiners, in-stanced here, of endeavoring to support findings by applying a " credible" rubber-stamp to one witness and a "not credible" one to another, with no explanation that will assist the Board or a reviewing court in ascertaining what led to the use of the particular stamp."
The Board is required by law to do more than make con-clusions, it must " confront the facts on which appellant relies and the legal inferences those facts suggest."
Wingo v. Washington 395 F.2d 633 (D.C.Cir.1068).
The Board's disregard of its obliga-tions render its findings and conclusion inadequate.
THE BOARD ERRED IN CONCLUDING THAT THERE ARE SUFFICIENT SOURCES OF MAKEUP WATER AND ADEQUATE ACCESS TO SUCH SOURCES TO ENSURE THAT THE PUBLIC HEALTH AND SAFETY IS NOT ENDANGERED BY BOILING IN THE SPENT FUEL POOL.
The deficiencies noted in regard to Illinois' Exception 1 apply also to the subject of Illinois Exception 2.
The Board's finding (Tr. at 45) is a mere conclusory statement, unsupported by l
reasoning and apparently based on the same disregard for the real questions raised by Illinois at the hearing.
Again, the State I
satisfied its burden by hypothesizing a credible event that would preclude workers from gaining access to the manually operated make-up systems in the auxiliary building.
(Tr. at 1557-1560, 1571).
The Board attempts to rationalize its finding by attending
_17 in a footnote (Tr. at 45, n.134) to the findings in answer to Board Question 4(q), which dealt with the engineered safety features designed to decrease the likelihood of a severe pool drainage accident.
Illinois did not take exception to the Board's findings in respect to Board Question 4(Q) and does not dispute that the existing design and engineered safety features reduce the likelihood of a severe drainage accident.
However, we do question whether the existing engineered and manual systems, taken together, in the event hypothesized by the State's witness can " ensure that the public health and safety is not endangered by boiling in the spent fuel pool."
Initial Decision at 45.
Illinois also questions whether the Board analyzed the real question raised sufficiently to reach a rational conclusion that in all events make-up water would be i
available.
The arguments put forth in respect to Exception 1 also apply here.
The Applicant has not produced any factual evidence to show that in the event of a severe accident, where high amounts of radiation are present and the existing automated makeup water systems malfunction, it can assure adequate access to manual sources of makeup water to preclude any danger to the public health and safety.
The failure of Applicant and Staff to meet their I
burdens and the failure of the Board to consider adequately all ramifications of the State's contention and to provide a reasoned basis for its conclusions render the Board's finding on makeup l
l water erroneous.
THE BOARD ERRED IN RULING THAT THE TESTIMONY OF PETER J. CLEARY BE EXCLUDED FROM THE RECORD A.
The Board Erred In Holding The Witness To Be Unqualified.
I Illinois Exceptions 14 and 15 are based on the exclusion of the written testimony and attachments thereto of Peter J. Cleary, which were excluded when the Board rules that Mr. Cleary's qualifi-cations were insufficient for an expert witness on evacuation and j
Tr. at 1610.
The rule is well settled that an expert witness is a person of science, educated in the area or possessed of special knowledge acquired from practical experience, and if a court is satisfied that the witness has gain such experience in the matter as to entitle his evidence to credit, it should be admitted.
The witness need not be infallible nor need he show the highest degree of skill.
The witness need not be registered or the holder of degrees or certificates qualified.
Smith v. Hobart Manu-facturing, 185 F.Supp.751 (E.D.Pa.1960), citing Bowser v.
Publicker Industries, 101 F.Supp.386, (E.D.PA.1951).
See also Eastburn v.
Ford Motor 471 F.2d 21 (5th Cir.1972); Paradise Prairie Land v.
U.S.
212 F.2d 170 (5th Cr.1954).
The standard for qualification of witnesses is set by Rule 702 of the Federal Rules of Evidence.
That rule states:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
I,. _ _ _ _-
It can,therefore, be seen that both the Federal Rules and the case law uphold the credentials of those expert witnesses who, though without academic credentials in the area of their testimony, have acquired by personal training, interest, or pro-fessional employment some skill that can be brought to the testi-many.
This is particularly true in an area such as evaluation of evacuation or emergency planning for nuclear power plants.
Even counsel for the Applicant has admitted on the record that there is no " recognized course of study or specific qualification that one can point to for one to be able to :. valuate an emergency plan."
Tr. at 93.
Thus it can seem tl.at the law in general will qualify as an expert witness one who can show that through some course of study or employment he has acquired expertise in the area of his testimony.
Mr. Clearly fully meets the test for qualification.
The State recognizes that the party offering the witness who would give expert testimony bears the burden to show the qual-ifications of the witness.
Such qualifications may be recorded achievement in the chosen field, for instance, by submission of oral or documentary corroborating proof of qualification.
Smith v.
Hobart, supra.
8 Both by documents submitted as part of the testimony and by oral testimony on the record at the hearing the State has proven that Mr. Cleary is indeed an expert in the area of evaluating emergency plans.
The record shows that the witness has studied emergency and evacuation plans for a period of approximately two l
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i years as part of his duties as an employee of Citizens for a Beeter Environment.
His familiarity with the subj ect is based on know-ledge obtained from study of government documents, general texts, specific emergency plans, personal interaction with utility emer-gency planners and coordinators, the director and the employees of the Illinois Emergency Services and Disaster Agency, Illinois Depart-ment of Public Health, U.S. Environmental Protection Agency, and other federal agencies and local emergency and disaster agencies.
Tr. at 1602-3.
Among topics upon which Mr. Cleary has developed expertise are: "How one should be able to riscognize an adequate emergency plan and how, if an emergency plan were not adequate, one could improve the plan." Tr. at 1603-4.
i In regard to this particular proceeding, Mr. Cleary reviewed and analyzed the following documents:
the Commonwealth Edison Generating Station Emergency Plan, the Zion Station Emergency Plan, the Zion Station Emergency Plan Implementing Procedures, and the Zion Police Plan, which is the emergency plan for the City of Zion itself.
Additionally, the witness prepared himself by speaking with emergency service employees from Zion and from the neighboring cities of Racine and Kenosha.
Tr. at.1604.
The documents sub-mitted to attest to Mr. Cleary's qualifications also relate to evalu-ationof the Zion Plant, in that the CBE 7865 Report reseerched and written by the witness deals with emergency and ev.acuation plans, some of which apply in the Chicago area.
Finally, Staff counsel admitted on the record that Mr. Cleary had-a " demonstrated interest in the subject of emergency planning." Tr. at 1600.
The Board's refusal to allow Mr. Cleary.to testify as an expert witness and its action in striking his written testimony
e- -
and the documents attached thereto are erroneous and an abuse of discretion.
As a result of this error a full evaluation of the.
emergency plans as they apply to the modification of the spent fuel pool could not be made.
Therefore, the Board further erred in not giving full consideration to possible changes in the emergency and evacuation plans that were necessitated by this modification.
B.
The Board Erred In Excluding Peter Cleary's Written Testimony And Attachments Thereto On Grounds Of Relevancy And Hearsay The Board's ruling at the hearing to disallow testimony of Mr. Cleary (Tr. at 1593, 1601, 1610) was an abuse of discretion.
The testimony and documents submitted were clearly relevant to the proceeding.
Mr. Cleary's testimony was put forward in response to the Board's Question 4(b), which requested information from the parties no changes in the emergency plan.
The written testimony was based on the witness's study of the appropriate documents pertinent to the Zion emergency plan; the appended documents (CBE 79137and CBE 7865), researched and/or written primarily by the witness, centered on the subject matter of the Board's Question. The relevancy of these documents was explained by the State on the record:
o
o.
As to the relevancy, first of the attachments to his testimony, the second attachment, CBE 7865 deals with Zion only in part, and the firs ~t one is an analysis of a Nuclear Regulatory Commission document.
These attachments are probative of two things:
First, they show Mr. Cleary's investigation, work and study in the area since, as he has testified, he was in essence the primary author of both of these documents.
Second, particularly CBE 7865 describes the kind of problems that can be encountered in imple-menting an emergency plan from experience from other reactors, and go to support Mr. Cleary's testimony that a drill of the Zion Station emergency plan is imperative to test its adequacy.
Tr. at 1608' Finally, again on the relevancy issue, as to how Mr. Cleary's testimony relates to this modification, Mr. Cleary's testimony, most of it, sets forth what the problera are with the current emergency plan.
As he has stated, he is not qualified to quantify what the particular radioactive emissions are that may occur as a result of this particular modification.
And we are not relying on his testimony for this, but, rather, on testimony of other witnesses to speak of accidents or pool boiling, as Dr. Resnikoff testified today, to speak of wha: incidents nay occur that will cause an in' crease in radioactive emissions from the plant.
Mr. Cleary's addressing whether the plan can do the job.
And if it can' t do the job now, then we would submit that it certainly could not do the job --
has not been shown to do the job with the modified compacted spent fuel racks in place.
Ir. at 1609 The fact that Mr. Cleary's associate wrote part of one document and that the documents contain quotes from or references to other works does not deprive the witness's writings of their relevancy.
I L
e o',
o To the extent that the Board's ruling was based on a finding that Mr. Cleary's testimony and the attachments thereto were irrelevant, the ruling should be reversed.
As to the hearsay objection, as counsel for Illinois stated on the record, if Mr. Cleary's testimony had been included in the record it would have been received as the testimony of an expert witness.Tr. at 1608. Such testimony traditionally includes certain types of information formally regarded as hearsay. Federal Rules of Evidence 803 (18),(24). In an administrative proceeding the rules in regard to hearsay are substantiall.y relaxed. Hearsay evidence is generally admissible in administrative proceedings.
Duke Power Co. (Catawba Nuclear Station) 4 NRC 397 (1976);
Illinois Power Co. (Clinton Power Station) 4 NRC 271 (1976).
None of the Cleary testimony on emergency plans, hearsay or not, has been shown to be from an unreliable source; therefore it is admissible. Tennessee Valley Authority (Hartsville Nuclear Plant) 3 NRC 809 (1976).
To the extent that the Board's ruling to strike Mr.
Cleary's testimony and the attachments thereto was based on a find-ing of hearsay, the Board was in error and abused its diseration.
Therefore the ruling should be reversed.
The Board's ruling on Mr. Cleary's qualifications and the admissibility of his testimony suffer from the same deficiencies previously discussed in this brief: the reasoning behind the Board's decision is not discern-ible from the transcript. See Tr. at 1610 l
The Supreme Court has consistently ruled that administrative decisions must be based on substantial evidence and reasoned
g t
findings "which alone make effective judicial review possible".
Baltirtore and Ohio R. Co. v. Aberdec." and Rockfish R. Co.,
393 U.S.
87, 92, (1968). The Court has held that where there are no findings and no analysis to justify decisions and no indication of the basis upon which a commission exercises its discretion, the Administrative Procedure Act will not permit acceptance of such adjudicatory practice.* Burlington, Truck Lines,Inc. v.
U.S.,
371 U.S.
156,16"(1962).
THE BOARD ERRED IN FINDING THAT THERE IS NO NEED TO CHANGE THE APPLICANT!S EMERGENCY PLAN DUE TO THE PROPOSED MODIFICATION AND SUBSEQUENT OPERATION OF ZION STATION WITH INCREASED SPENT FUEL STORAGE CAPACITY.
The Board's ruling on the modification of the emergency plan, based on the testimony it received in resonse to Board Question 4(b), is in error.
The Board Finding at 80 of the Initial Decision thac there was no need to change the Applicant's emergency plan was basel exclusively on testimony provided by the Applicant and Staff, as the State had no opportunity to comment on the record on problen s that exist in the emergency plan.
The Board did not give proper consideration to all problems that may occur due the modication of the soent fuel pool.
As a result the Board's find-ing should be reversed.
- See Administrative Procedure Act, 5 U.S.C.
S552 et seq., S557 (c) (1) (A) l of which provides that all decisions shall include a statement of findings and conclusions, as well as the reasons and casis therefore, upon all mauerial issues of fact, law or discretion presented on.
therecord.
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D THE BOARD ERRED IN REFUSING TO REQUIRE GROUNDWATER MONITORING The Board was clearly shocked by the total absence of groundwater monitoring around the Zion facility. Initial Decision at 94-96.
A well monitoring technical specificiation, originally included in the Zion license, which required sampling of wells up gradient from the facility, was dropped in 1977. The purpose of the technical specification had been not to monitor for ground-water contamination, but merely to check existing potable water supplies. Initial Decision at 94.
Despite its concern the Board felt constrained by law from requiring Applicant to institute affective groundwater mon-itoring down gradient from the spent fuel pool.
In declining to act the Board has interpreted the scope of this proceeding much too narrowly.
The vast increase of radioactive material stored in the pool as a result of this proceeding justifies increased monitoring.
The fact that requiring monitoring would be a novel act should not be persuasive.
The Board in this same case found that corrdsion monitoring was needed in the pool for the firse time since the original licensing because the compacted racks would be used, yet there have been fuel and racks stored in the pool before this proceeding.
While the Board failed, wrongly, to make the corrosion surveillance program a technical specification, there was no question that it had the authority to do so. Since a new corrosion surveillance program falls within the scope of the proceeding so does a new groundwater monitoring program.
Given the Poard's eloquent statement of urgent reasons for groundwater mor.itoring at Zion, and given that the Staff will most certainly s'.tirk its responsibility and will fail to exercise its discretion Ud to impose such a technical specification, monitoring should be o
required as a condition,or technical specification in this license amendment to protect the public health and safety.
CONCLUSION For the reasons stated in this Brief the State of ILLINOIS prays that the Initial Decision of the Atomic Safety and Licensing Board be reversed.
In the alternative, the State of ILLINOIS prays that the Board's decisions on the excepted areas be reversed and that the Atomic Safety and Licensing Appeal Board impose the technical specifications sought by the State, that the testimony of Peter Cleary be admitted and the Zion emergency and evacuation plans be reevaluated and improved in light of the license amendment, and the makeup systems be ordered automated to eliminate possible contamination of the environment.
Respectfully Submitted, WILLIAM J. SCOTT ATTORNEY GENERAL STATE OF ILLINOIS By:
Susan N.
- Sekuler, Assistant Attorney General Anne K. Markey Assistant Attorney General
G UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY & LICENSING APPEAL BOARD In the Matter of COMMONWEALTH EDISON CO.
)
(Zion S':ation, Units 1 & 2)
)
Docket Nos 50-295 (Spent Fuel Storage Pool)
)
50-304
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the State of Illinois Brief on Exceptions to the Initia Cecision of the Atomic Safety & Licensing Board in the above -saptioned proceeding have been served on the following b y deposit in the United States mail, first class, this 3rd day of April, 1980.
- !ic.">el Miller, Esq.
Mr. Rick Kcnter Accric Safety & Licensing Sca-Philip ?. Steptce, Esq.
617 Piper Lane pr,el
%sha=, Li.ncoln & 3eale Lake Villa, Ill 4.cis 60046 U.S. Nuclear ?egulatorr Cem.
gdcago,I1'Scis60690 Washing c, D.C. 20555'
.e Firs :Taticnal Placa Atcmic Safety & Licensing Arpeal Docketing & Service Secticn Richard G-M M,
Esq.
Scard Panel U.S. Nuclear Pegulaterf Ccm.
Steven Goldberg, Esq.
J.S. Nw-1aa" Pagulatcr/ Ccm.
Washington, D.C. 20555 Office of the Executive Lecal iashingten, D.C. 20555 Direc wr, U.S Nuclear F M 'm Cenmission, Washingten,D.'C.2' Cr. Ferrest J. Famick Jchn Wolf, CP2i_ m.
Dr. Linda W. Little 305 E. Hamilten Avenue At=ic Safety & Licensing Scard Meder, At.~nic Safety & Licer State Cc11ege, Pennsylvr.ia Panel, U.S. Nucla=- Pegulaterf sing Scard Pr.el 15801 Ccmnission 5000 Hermitage Drive Washington, D.C. 20555 Paleigh, NC 27612 Richard S.Salcman, Dr. John H.
Buck Dr.
W. Reed Johnson Chairman Atomic Safety Safety Atomic Safety & Licensing Atomic Safety SLicensing Licensing Appeal Board Appeal Board Appoal Board U.S. Nuclear Regulatory U.S.
Nuclear Regulatory C U.S. Nuclear Regulatory Commission Washington,D.C. 20555 Commission Wahington, D.C.
20555 Washington,D.C. 20555 SUSAN N.
SEKULER 1
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