ML20035C528

Nuclear Regulatory Commission Issuances for January 1993. Pages 1-54

ML20035C528
Person / Time
Issue date:	03/31/1993
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V37-N01, NUREG-750, NUREG-750-V37-N1, NUDOCS 9304080072
Download: ML20035C528 (62)

Text

{{#Wiki_filter:.._. i NUREG-0750 Vol. 37, No.1 Pages 1-54 I ? I NUCliEARiiREGULATORY COMMISSIONilsSU' NCES? A i L ^ ? January 7 1993:i i ~

j'.

[} g y 'M '- .)g -O:

g

',

t f.:. x; g i 9304080072 930331 PDR NUREC 0750 R PDR

l l. t: I /_ Available from 1 Superintentendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 i s A-par's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound oditions for this publication. Single copies of this publication are available from National Technical information Sorvice, Springfield, VA 22161 b I i Errors in this publication may be reported to the f Division of Freedom of Information and Publications Services Office of Administration i U.S. Nuclear Regulatory Commission Washington, DC 20555 '(301/492-8925)

NUREG4750 Vol. 37, No.1 Pages 1-54 i NUCLEAR REGULATORY COMMISSION ISSUANCES January 1993 J l. This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards l (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM). The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance. i U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

COMMISSIONERS Nan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Plangue B. Paut Cotter, Jr., Chief Administrative Judge, Atomic Safety ard Ucensing Board Panel

CONTENTS Issuance of the Nuclear Regulatory Commission TEXAS UTILITIES ELECTRIC COMPANY, et al. (Comanche Peak Steam Electric Station, Unit 2) Docket 50-446 MEMORANDUM AND ORDER, CLI-93-1, January 29,1993....... 1 Issuance of the Atomic Safety and Licensing Board PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) Dockets 50-275-OLA-2,50-323-OLA-2 (ASLBP No. 92-669-03-OLA-2) (Construction Period Recovery) (Pacility Operating Licenses Ncis. DPR-80, DPR.82) PRElIEARING CONFERENCE ORDER, LBP-93-1, January 21,1993................................. 5 Issuances of Directors' Decisions TEXAS UTILITIES ELECTRIC COMPANY, et al. (Comanche Peak Steam Electnc Station, Units 1 and 2) Dockets 50 445, 50-446-DIRECIOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-93-1, January 15, 1993.................................. 39 TEXAS UTILITIES ELECTRIC COMPANY, et al (Comanche Peak Steam Electric Station, Unit 1) Docket 50-445 DIRECIOR'S DECISION UNDER 10 C.F.R. { 2.206, DD-93 2, January 15,1993........................... ...... 52 iii

pm4 _a,a e,.m-. ,-A e aL-am e An-e --,-4,-A'e'A =a ~- --- - - - - - - - - - - - - - - - -w-- -->m mes m a-w-- w <aA4--w -- <=- m--ww w w i i I i a i e a i P h I l i Comm.ssion i l lssuances i B l l I l O D i 4 l 2 o O i i d l 1 i i J l i t i 4 1 5 i I 1 l 1 l 1 i t 9 + l 4 i i I i i

Cite as 37 NRC 1 (1993) CU-93-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Ivan Selln, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remiek E. Gail de Planque in the Matter of Docket No. 50-446 TEXAS UTILITIES ELECTRIC COMPANY, et al (Comanche Peak Steam Electric Station, Unit 2) January 29,1993 The Commission denies the request of Citizens for Fair Utility Regulation (CFUR) for a hearing on the proposed issuance of an operating license for Comanche Peak, Unit 2. "Be Commission finds that it cannot reopen the hearing on the Unit 2 proceeding as a maner of discretion, based on a hearing request that does not address the criteria for late intavention and reopening of the record. The Commission does not preclude CfUR from filing a renewed hearing request that addresses the relevant regulatory standards. RULES OF PRACTICE: REOPENING OF RECORD (PRIOR TO LICENSE ISSUANCE) Until the full-power license for a nuclear reactor has actually been issued, the ' possibility of a reopened hearing is not entirely foreclosed; a person may request a hearing concerning that reactor, even though the original time period specified in the federalRegister notice for filing intervention petitions has expired, if the requester can satisfy the late intervention and reopening criteria. 1

^ i l RULES OF PRACTICE: REOPENING OF RECORD; LATE INTERVENTION A person seeking a discretionary hearing after the expiration of the time period for filing intervention petitions should either address the late intervention t and reopening criteria or explain why they do not apply. RULES OF PRACTICE: REOPENING OF RECORD (PARTY WITilDRAWAL) A party that voluntarily withdraws from a proceeding that was later resolved l by a settlement agreement must satisfy the late intervention standards before. seekmg to reopen the record of that proceeding. MEMORANDUM AND ORDER I. INTRODUCTION i nis matter is before the Commission on a request by the Citizens for Fair Utility Regulation ("CFUR" or " Petitioner") asking that the Commission issue a Federal Register notice offering a hearing on the proposed issuance of an i operating license for Unit 2 of the Comanche Peak Steam Electric Station j (" Comanche Peak"). De Licensee, Texas Utilities Electric Company ("TUEC" or " Licensee") and the N~<C Staff have responded in opposition to the request. After due consideration, we deny CFUR's request for the reasons stated below. II. BACKGROUND i { On February 5,1979, the NRC published a FederalRegister notice announc-t Comanche Peak. See 44 Fed. Reg. 6995 (Feb. 5,1979). CFUR filed a timely ing TUEC's request for an operating license for both Unit I and Unit 2 of. I petition to intervene and a rcquest for a hearing on the requested licenses. On June 27,1979, the Licensing Board issued an order granting CFUR's petition to intervene in the proceeding. See LBP-79-18,9 NRC 728 (1979). ne or-i der also gianted two other petitions to intervene from two other organizations and granted a request from the State of Texas to participate as an " interested state." Subsequently, the Licensing Board issued an unpublished order on April l 2,1982, granting CFUR's request to withdraw from the proceedmg. A second j intarvenor had aircady withdrawn in 1981. j i L 2 I l 4 7 1 +

l q ne proceeding continued with the Citizens Association for Sound Energy 'i (" CASE") as the sole intervenor until the parties reached a settlement agreement dismissing the proceeding. See LBP-88-18A,28 NRC 101 (1988); LBP I ISB, 28 NRC 103 (1988). At that time, CFUR attempted to re-imervene in the proceeding; however, the Commission found that CFUR had failed to demonstrale that its petition met the criteria for late intervention in 10 C.F.R. [ t 2.714(a)(1)(i)-(v). See CLI-88-12,28 NRC 605, 609 (1988), as modified, CL1-89-6,29 NRC 348 (1989). CFUR filed a petition for review of that denial but the Commission's decision was upheld. Citizensfor Fair Utility Regulation v. NRC, 898 F.2d 51 {5th Cir.), cert. denied,111 S. Ct. 246 (1990). l De NRC Staff issued a full-power operating license to TUEC for Comanche 1 Peak Unit 1 on April 17, 1990. The NRC Staff has now completed its I preliminary reviews and is currently preparing to issue a low-power license for. Comanche Peak Unit 2. , i IIL ANALYSIS tssuance of the full-power license for Unit 1 cloecd out the opportunity for a hearing on the Unit 1 operating license under the 1979 FederalRegister notice; I however, until the full-power license for Unit 2 has actually been issued, the l possibility of a reopened hearing is not emirely foreclostd. Er example, a person may request a hearing concerning the Unit 2 r crating license under the 1979 Federal Register notice if the requestor can satisfy the late intervention and reopening criteria. See Texas Utilities Electric Co. (Comanche Peak Steam l Electric Station, Units 1 and 2), CLI-92-1,35 NRC 1,6 n.5 (1997) ("CLI 1"). In essence, CFUR's request constitutes a petition for late intervention and to reopen the record. However, CFUR has failed to address the standards governing such requests set out in 10 C.F.R. Part 2. 'Iherefore, it appears that CFUR is asking the Commission to reopen the hearing on the Comanche Peak Unit 2 operating license as a matter of discretion without applying the Commission's late intervention and reopening standards. Yet CFUR offers no explanatica why the Commission should igno:e the standards in 10 C.F.R. Part 2 for late intervention and reopening such as CFUR proposes. CFUR does assert that [ new issues have arisen since the initial hearings and that hearings on these j matters could be beneficial. Whether the issues are, in fact, new and whether. j the hearings could be beneficial in resolving them must be veighed against i the tardiness with which the petition has been presented to the Commission, the contribution the petitioners could make in resolving those issues, and the -l resulting delay in the proceeding. This is the very purpose for which the late - intervention and reopening standards were created. We decline to ignore these 3 f e ~) I ~

fs 1 s [ standards and, therefore, we deny CFUR's request By this decision, we do not , preclude CFUR from filing a renewed request for a hearing that addresses the relevant regulatory standards 1 - Rr the above reasons, we deny CFUR's request for a discretionary offer of-' reopened hearings on the Comanche Peak Unit 2 operating license.2 It is so ORDERED, Ru the Commission, SAMUEL J. ClllLK Secretary of the Commission Dated at Rockville, Maryland, this 29th day of January 1993. 3 As we noted in GJ42-1, are nust fast bamrne a party to a paceeduig bcfore aseling to reopen that pucen&ng $ae gera#y GJ421, Beme QUR had voluntadly withdrawn frun Os ongmal ComancAireak proceedings hafare de satiemers agmament was concluded, OUR does am now beve em right to sed so roupce de somed of the promeding without first sceting leie irnervenuan in the preanading la addt6an. as we also psanted out in QJ-92-1,1me inservanaan and soupemns is now available esdy with regsid to the Unit 2 pnamedmas. QJM1, as NRC at 6 m.5. 2 Ws have soviewed the induscal aDegatwee raised in the OUR Request anJ Gm ruiponses so thwe ellega6csts by both Os 13censee end the Suff, in Lght d the afLinviu susdud to the staffs Response, we 6nd no pubhc hashh and safety reason to prevas insannoe of the low-powa liaros for Unit 2 at this tirne. 4 s n., e-

i I I i t i e i I a j Atomic Safety I anc Licensing i Boarcs issuances i j ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge O l Robert M. Lazo,* Deputy Chief Administrative Judge (Executive) Y Frederick J. Shon,' Deputy Chief Administrative Judge (Technical) i O i Members g I l l Dr. George C. Arderson James P. Gleason* Dr. Kenrmth A. McColiom l Charles Bechhoefer* Dr. David L Hot-ick Marshali E. Miller ] l Peter B. Bloch* Emest E. Hill Thomas S. Moore

• G. Paul Bottwerk !!I*

Dr. Frank F. Hooper Dr. Peter A. Moms j Glenn O. Bnght Elaabeth B. Johnson Thomas D. Murphy

• Dr. A. Dixon Callihan Dr. Walter H. Jordan Dr. Rchard R. Partrek Dr. James H. Carpenter
• Dr. Charles N. Kolber*

Dr. Harry Rein [ Dr. Rehard F. Cole

• Dr. Jerry R. Kline*

t.ecter S. Rubenstein Dr Thomas E. Eileman Dr. Peter S. Lam

• Dr. David R. Schink Dr. George A. Ferguson Dr. James C. Lamb til Ivan W. Smith
• O Dr. Harry Foreman Dr. Emmetn A. Luebke Dr_ George F. Tdey l

Dr. Achard F. Fo::ter Morton B. Margates* Sheldon J. Woffe d I i

• Permanent panelmembers w

Cite as 37 NRC 5 (1993) LBP-93-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Charles Bechhoefer, Chairrnan Dr. Jerry R. K!!ne Frederick J. Shon in the Matter of Docket Nos. 50-275-OLA-2 50-323-OLA-2 (ASLBP No. 92-669-03-OLA-2) (Construction Period Recovery) (Faci!Ity Operating Licenses Nos. DPR-80, DPR-82) i PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power P!se.', Units 1 and 2) January 21,1993 The Licensing Board grants the request for a hearing / petition for leave to k intervene of a petitioner in a proceeding concerning the proposed extension of operating licentes to recover or rcrapture into those licenses the period of construction of the reactors. RULES OF PRACTICE: STANDING To establish standing, a petitioner must demonstrate that it has suffered or will suffer " injury in fact," that the injury falls within the zone of interests sought to be protected by the statutes being enforced, and that the injury is redressable by a favorable decision in the proceeding. Public Service Co. of 5 E r

~ ~. i lt l New flampshire (Seabrook Station, Unit 1), CL1-91-14,34 NRC 261,266-67 j (1991). RULES OF PikACTICE: STANDING (INJURY IN FACT) A demonstration of " injury in fact" must be actual but need not be substantial. IIouston Lighting and Power Co. (South Texas Project, Units 1.and 2), LBP-79-10,9 NRC 439,447-48 (1979), aff'd, ALAB-549,9 NRC 644 (1979). De incremental risk of reactor operation for an additional 12-15 years is sufficient to invoke the presumption of injury in fact for persons resident from 10 to 20 miles from the facility. To require a direct showing would in effect emasculate the i hearing procedures by offering a hearing that could not in fact likely be obtained. Northern Indiana Public Service Co. (Bailly Oenerating Station, Nuclear-1), .[ ALAB-619,12 NRC 558,564 (1980). l i I RULES OF PRACTICE: STANDING - A group does not have standing to assen the interest of plant workers, wtere it has no such workers among its members. j RULES OF PRACTICE: CONTENTIONS i The Commission's revised contention rule, which " raise [d] the threshold" { for the submission of contentions, has been held valid on its face, although susceptible to misapplication so as improperly to deny the admissibility of I I contentions raising material issues. Union of Concerned Scientists v. NRC,920 F.2d 50 (D.C. Cir,1990). l t ADJUDICATORY llEARINGS: SCOPE OF REVIEW j De scope of review for construction period recapture proceedings may be { broader than that for license renewal, inasmuch as the Commission issued a new l rule (10 C.F.R. Part 54) for license renewal specifically spelling out and limiting the scope of such proceedings. g i RULES OF PRACTICE: SCIIEDULING OF IIEARINGS j Even though a license amendment request is filed many years prior to its f actual need, it will not be deemed premature where there is no specified application period. Ilewever, any conditions found necessary will te applied as 6 9 6 i l l l

w u i r of the date of the licensing board's fmal decision or (assuming that the board does not bar the amendments) of the license amendment, whichever comes later. i RULES OF PRACTICE: SilOW-CAUSE PROCEEDING (EXCLUSIVITY) -l t Although the 10 C.F.R. 92.206 forum may be technically available for a l petitior.cr that wishes to assert operational problems, it is not the exclusive forum. Where operational issues are relevant to a recapture proceeding, they i-may also be raised in that proceeding. Moreover, the hearing rights available { through a section 2.206 petition are scarcely equivalent to, and not an adequate substitute for, hearing rights available in a licensing proceeding. See Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167,1175-77 (1983). RULES OF PRACTICE: LITIGABILITY OF ISSUES i In a construction period recapture proceeding, implementation of mainte-nance and surveillance programs may be challenged, even though the paper programs are not being modified. Irrespective of how comprehensive a program } may appear on paper, it will be essentially without value unless it is timely, continuously, and preperly implemented. { RULES OF PRACTICE: LITIGAllILITY OF ISSUES Numerous, repetitious cited violations or other incidents may form the basis for a contention questioning the adequacy of a aaintenance or surveillance program, even though none of the individual violations or other incidents rises i to the level of a serious safety issue. When sufficient repetitive or similar l incidents are demonstn: led, aggregation and/or escalation of sanctions may be in order. i, 4 RULES OF PRACTICE: CONTENTIONS In proving its claim, a petitioner is not limited to the specific facts relied on l to have its contention accepted, as long as the additional facts are material to the contention. i i RULES OF PRACTICE: RESIONSIIIILITIES OF PARTIES De " ironclad obligation" of a petitioner to examine publicly available doc-umentary evidence in suppen of its contentions applies only to information in l 7 l i i .o I t t f i

l [ support of a contention. A requirement also to examine contrary publicly avail-able documentary evidence would unduly exacerbate the considerable threshold l that a petitioner must already meet under the current revised cantention rules, { t NEPA: LONG TERM STORAGE A contention attempting to raise an issue of the lack of long-term spent fuel storage is barred as a matter oflaw from operating license and (perating license amendment proceedings.10 C.F.R.16 51.23(a), 51.53(a). D l EMERGENCY PLANS: CONTENT j The Commission has limited the scope of litigation on emergency prepared-1 ness exercises to a consideration of whether the results of an exercise indicate that emerSency plans are fundamentally llawed. - i RULES OF PRACTICE: JURISDICTION OF IlOARDS -t A contention challenging the appropriateness of a "no significant hazards l consideration" finding of the NRC Staff is outside the Board's jurisdiction. It i is solely within the province of the Staff.10 C.F.R. 9 50.58(b)(6). NEPA: PROCEDURES } In a situation where an Environmental impact Statement (EIS) is neither } required nor categorically excluded, a contention seeking an EIS, filed prior to i i the Staff's issuance of an Environmental Assessment (EA), is premature. After Staffissuance of an EA, a late-filed contention may be submitted (assuming the t EA does not call for an EIS). t PREHEARING CONFERENCE ORDER (Ruling upon Intervention Petition and Authorizing IIcaring) i 'Ihis proceeding involves the proposed amendment of 11 e operating licenses for the Diablo Canyon Nuclear Power Plant, Units I and 2, to extend the life ' l of those licenses by more than 13 years (for Unit 1) and almost 15 years (for Unit 2). As explained in our Mcmorandum and Order (Filing Schedules and Prehearing Conference) LEP-92-27,36 NRC 196 (1992) (hereinafter."LBP 27"), the amendments are intended to " recover" or " recapture" into the operating l 8 I i L 0 or

-y....- -i i H licenses the period of construction for the reactors, to conform it'e licenses with Commission practice, in effect since 1982, of licensing nuclear reactors for a 40-year period of operation. j In LBP-92-27, we also considered a petition for leave to intervene and - request for a hearing filed by San Luis Obispo Mothers for Peace ("MFP" or " Petitioner"). We pointed out that pethioners for intervention had a right - j - to amend their petitions, and we established schedules for the filing of any -l - such amendment and responses by Paci c Gas & Electric Co. ("PG&E" or j fi ~l " Applicant") and the NRC StatT. In accord with those schedules, MFP on October 26,1992, filed a supplement to its petition. The Applicant and NRC Staff filed timely responses on November 18,1992, and November 30,1992, respectively.2 On December 10,1992, we - j held a prehearing conference in San Luis Obispo, California, to consider these j filings.2 As outlined in LBP-92-27, a petitioner for intervention must, as a requirement l to achieve party status, establish that it has standing and that i'. has proffered at least one viable contention. The Applicant opposes MFP's revised petition, for both lack of standing and the failure to assest a valid contention. 'Ihe Staff also .j opposes MFP's petition, based on lack of a valid contention. j Ibr the reasons set fonh below, we are her;,by granting MFP's petition for -( leave to intervene and request for a hearing. In view of that action, we are also issuing a Notice of Hearing. e L STANDING i As set forth in LBP-92-27, to establish standing, the petitioner must demon-. strate that it has suffered or will suffer " injury in fact," that the injury falls within ~j the zone of interests sought to be protected by the statutes being enforced - here, the Atomic Energy Act or the National Environmental Policy Act (NEPA) - and that the injury is redressable by a favorable decision in the proceeding.- 4 - fublic Service Co. ofNew Hampshire (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261,266-67 (1991). In addition, a group such as MFP, to the extent. j it asserts standing as a represenutive of the interests of its members (as is the j case here), must demonstrate that it is authorized to do so. e 'on Novemher23. 1992, the Apphcant filed a sxrrecten to hs response At the pn:heanng conference an Deccenhar 30,1992 (see as 2, h(re). MrP and the staff made several conecuans no abair rdmas. the conferanos was annmmced through our Nadce <( Preheanns onference, dated N-. - - - 2. 1992, c puhLshed at 57 Fed. Reg 53.362 (Nov 9.1992) In accordance with the inwhation in that Nm s. the Applicant and WP elocaed to r.le propmod agenda for the confereros. (References no the transcnpt of this pretwaring conference are hereafter ciisd as Tr. ) As also announced tvy that Nedce, the Board heard arallonited appearance steiameras faarn enernbers or the puhuc en Thursday everdng. Deceniher 10.1992 Ur. 218 351), and Fnday marning. Deuerd or11,1992 Ur. 352-406). ? l i f' 9 r t

'Ib assert its standing, MFP has proffered the affidavits of five members, asserting that they reside and/or carry on businesses 10 (one member),15 (two i members), and 20 (two members) miles from the facility. Each expresses a concern that operation of the plants within the recapture period will be unsafe. In its petition, MFP indicates that this position is founded on reasons set forth in its proposed contentions.8.All of them also authorizc MFP to represent their. [ interests in the proceeding. In 1 BP-92-27, we pointed to the Commission's recent decision that dealt with ,j standing in pmceedings involving amendments to operating licenses. Florida Powcr and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CL1 21, 30 NRC 325 (1989). Were, the Commission noted that, in construction permit or operating license proceedings for nuclear reactors, residence'of a - person within 50 miles of a facility would be sufficient to confer standing. >j The Commission went on to hold that this 50-mile presumption did not apply in all operating license amendment proceedings but only in those involving a i "significant" amendment involving " obvious potentir.1 for offsite consequences." Id., 30 NRC at 329-30.d For other amendments, a petitioner would have to demonstrate a particular " injury in fact" flowing from the amendment in order to participate in the proceeding. he Applicant challenges the Petitioner's demonstration ~ of standing.5 It i claims that the amendment in question is not "significac'" but indeed is virtua!Iy . j ministerial - i.e., "an administrative change to the license" with no changes in authorized structures, procedures, or operations.* Therefore, according to the Applicant, the 50-mile presumption does not apply and a petitioner would have to demonstrate actual " injury in fact" in order to be admitted as a party. He Applicant thus contends that MFP's demonstration of the residence of five MFP members fmm 10 to 20 miles from the plant is not sufficient' l Tor its part, the NRC Staff observes that *'the geographical 50 miles seem[s] t reasonable given that this does have to do with operation."8 De Staff does not challenge MFP's demonstration of standing, except with respect to Contention VI, which seeks to litigate certain of the Applicant's practices on the basis, i h 8 e ocais x.1992 sWanmal h:nne Ommaha. MFP supplem). at n - 1

• 1a that paceedmg. the Conumanion danad for lack of standmg the irnervemma myucst af a residst hving 40

- i mDes imn the facilry. 'nio pooendmg oncerned a proposed caempnan inn ngulaterf mjuimneras denhng yl t with the use of"protectim factors" in respirators used by workea in radioactive envirorunana. The Commission commerned the the caemption.. deals with the protacunn of workers in the plars. not prammen of the { general public.... The Pennmer ife irnervenian) is nai a weiter si the plara St. Lucie. 30 NRC at 329. 8 Pacific oss and Electric Company's Answer to Request far licsong and itnnan so lniervene, dated Sepiernber 4 1992, at 11 14; Facific Gas and Dactric Company's Respanse to Penniancr's supplemera to Ittinan no intervene. dated Nevern's 18.1992 (hereir.ahar. PGAE Response), at 51% i 'Tr. !$. l INo pany currently challenges MrP's danonstration that the orgamranan is authunrad no sepresarn the interests j of the five individual members who submined affidavits. 8Tr. 34. 10 [ i 1 k t e

inter alia, of alleged harm to workers.' He Staff claims that MFP has not demonstrated authority to represent workers and thus lacks standing to present a portion of that contention. (De Staff opposes Contention VI in its entirely on other grounds as well.) In response to the. Applicant's claims on standing, MFP replies that the; members it is representing will be subject to a risk of an accident with offsite consequences for an additional 13 to 15 years (from Units 1 and 2, respectively). It thus deems the amendment in question to be "significant" and to possess an " obvious potential for offsite consequences."2' It differentiates this amendment from the " minor change to.... existing operation" considered in cases cited by the Applicant. In reply to the Staff's claim that MFP cannot Pssert the portion of Contention VI raising matters affecting workers because none of its members are workers, MFP concedes that it has no members who are also Diablo Canyon employees." 11 also asserts that Contention VI additionally deals with harm to members of the genemi public; we will address this claim in our discussion of the contention, irfra. t It is clear to us that a demonstration of " injury in fact" must be actual but need not be substantial. Houston Lighting and Power Co. (South Texas Project, Units I and 2), LBP-79-10,9 NRC 439,447-48 (1979),'afd, ALAB-549,9 NRC 644 (1979). MFP claims that the risk of accidents from the facility is a real risk and that, under the amendment, it will continue for more years than if [ the amendment were not granted. Although the opportunity for considering the risk of accidents was earlier available durirg the operating license pmceeding, j as claimed by the Applicant, this does not mean that such risk may not be a basis for standing in this proceeding. He risk, even though it then may have j f been evalur.ted by NRC as being acceptably small, nevertheless continues - it is in part a furetion of time - and constitutes the necessary showing of " injury in fact" for this proceeding. A _ direct showing of injury in fact caused by the proposed amendment, as the Applicant claims is necessary to establish standing, could prolubly not be l shown,82 for the amendment authorizes no substantive changes except for the. added risk stemming from additional time of exposure. Hat being so, we do not i l .1 'NRC staff Response in san taua obispo Moders for Pnace supplernera in Petaian to intervme, dated November 30 !?92 0=rninafier.NRC staff Response) at 34. 30 MFP supponent at 2 3 l IITr.16041. The "cancerns" ca.pamaed by the five MFP members. ahhaugh nos er.isfying de Applicant's cmena mists r2 possibly be adequate an this regant, aldugh we as not relyms on these capriased concerns to demonsuute mjury in recL* Nur does the Appheant acszyt as a showing of real injury in fact the incremema! nak assened by MrP as the foundation of ha standing claim (rt. 3433). i a 11 .f . I r i r i o l -= r 7 y

P r i t read the Commission's notice as in effect emasculating the hearing procedures - i by offering a hearing that could not in fact likely be obtained. As stated by the Appeal Board with respect to a comparable claim in a. construction permit extension proceeding: l l ? lithe applicant's premise is right, it wadd appear to follow that tlere vuild not be many, if any, persons resident in the general area of a nuclear facility under construcdon who muld -{ obtain intervendon in a pennit extension proceeding sudi as the one at bar. Tie applicant provides no examples of possible *addinomi or incremental injury beyed that authorized by de construenon permit" which might I w from tie extension of the compledon date specifed in the permit. And very few come readily to mind? Thus, what the applicant's posidan ccanes down to is that the notice of opponunity for hearing amounted to a tender 4 I of public perdespadanal rights on terms which almost no individual could meet. We should, of course, be most caudous in treating Comminskni notices (whether issued j by de Cornmission itself or its delegate) as being, in praedcal effect, illusory. l i ' offhand, we can thira of only one: the enlarganent of the time interval during which the surmeding f camnunuty snust endure the transinary _ -! and sacencenamic effects of the corstruction work inacir.. Northcro Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-619,12 NRC 558,564 (1980), j This Appeal Board conclusion would appear to be fully applicable to the situation here. Momover, we also believe that the additional operation of a t nuclear reactor, for 13 to 15 years, in itself would constitute significant additional - exposure to risk for nearby residents, thereby establishing potential " injury in j fact." Ihr these reasons, we are accepting MFP's demonstration of " injury in ~I fact." As for the aspects of standing beyond " injury in fact," MFP through its contentions has alleged harms involving the public health and safety and l the environment. Thus its injuries arguably fall within the zone of interests sought to be protected by the Atomic Energy Act and NEPA, Rtrther, MFP has - demonstrated how it could attain relief for the problems it assens - either by [ Iicense denial or by conditions relating to the problem in question. 1 In conclusion, at the prehearing conference we stated that we had determined [ that MFP has standing to participate in this proceeding.""Dtat conclusion was. not intended to include the representation of plant workers, as comprehended -{ by Contention VI. We reiterate that conclusion now. Except with respect to its l attempt to raise the concerns of workers in Contention VI MFP has demonstrated its standing to participat as a party in this proceeding, { f % ce t 12 i .{ i 1 h

p P II. ' CONTENTIONS ' l. General j in order to be admitted as a party, a petitioner for intervention must not only establish its standing but must also proffer at least one valid contention.. 10 C.F.R.12.714(b)(1). In its October 26,1992 supplement to its intervention j petition MFP submitted eleven contentions (numbemd I-XI).The Applicant and Staff, in their responses, each opposed the admissibility of all of the contentions. j At the prehearing conference, we considered each contention, but we ruled on only one of them (No. X) which we denied as be.ing beyond our jurisdiction to consider. We now turn to all of the contentions, which we discuss seriatim. ~ At the outset, we would note that contentions in this proceeding are governed by the recendy amended version of 10 C.F.R. 52.714, the scquirements of j which we summarized in LBP-92-97. 'Ilese amendments were intended by l the Commission to " raise the threshold" for the admissibility of contentions. 54 l Fed. Reg. 33,168 (Aug.11,1989). f Although petitioners long have been required to iden:ify a " basis" for contentions, they now must identify facts or expen opinion supponing the contention, together with demonstruting that they have a" genuine dispute with .i the applicant on an issue of fact or law." Id. 'In addition, under both the j former and the revised rule, contentions assened must be within the scope of ] the proposed licensing action. i De revised contention requirement was challenged by an intervenor group [ on the basis, inter alia, that it deprived intervenors of the hearing provided by 3 section 189a of the Atomic Energy Act. The court rejected this claim and held the stvised rules to be valid on theirface. Union cf Concerned Scientists v. NRC,920 F.2d 50 (D.C. Cir.1990). In doing so, however, the coun observed -i dat -i q "the NRC sules of course could be apphed so as to prevera all parties from raising a material issue. But *ic]vm assuming arguendo that we were to (md that thric instances... iwould) cmstitute specific misamlications of the rule... they twouldi suggest, at most, mly that the rute might in the future be misapplied. Such arguments are of course inappropriate lere, where the rule is being challenged on its face.* [ Citation omitted.1 Id. at 56. In reviewing MFP's proposed contentions, we will keep in mind j b::*h the upholding of the purpose of the rule and the need to interpret it as not foreclosing reasonable inquiries into the licensing action before us. As for the scope of the present licensing action, the Applicant would treat i the amendment as an " administrative change," whereas the petitioner appears i to consider it the equivalent of " initial licensing."'In our view, it is neither.- he Commission has not spoken with regard to such scope, here is no legal j 13' t [ r f f 7 + 1 h .i

r t r C precedent that would defme such scope, although the decision of the Licensing - f . Board in the Vermont Yanice recapture proceeding provides some guidance, j Vermon: Yantec Nuclear Power Corp. (Vermont Yankee Nuclear Ibwer Station), j LBP-90-6,31 NRC 85 (1990), j The Applicant asserts that, logically, the scope could not be broader than that 7 for license renewal (where the Commission striedy limited the issues that could - ( be considered). Indeed, the single safety issue that can be considered in license j renewal - age-related degradation of structures, systems, and components (SSCs)- would not, under the Applicant's view, be litigable in this proceeding inasmuch as the SSCs have, according to the Applicant, been previously analyzed for a full 40 years of operation (the license term that is currently being. j i sought). The Commission, however, passed a new rule in order to effectuate such limitation of issues for license renewal. It explicitly defined the issues that could be litigated in tho:,c proceedings.10 C.FR. Part 54, in particular,10 i C.F.R. 554.29. It has enacted no similar limitation with respect to recapture proceedings. Therefore, absent a regulatory p onouncement of this type, the

f scope of permissible issues wotdd be similar to that permitted with respect to any license amendment involving a degree of risk to the public.

MFP also asserts that the application under review is premature, that the amendment is not needed until 2008 at the earliest, and timt the proceeding j should thus be deferred until approdnately 2000... The Applicant expressed i certam business reasons why it filed its requested amendments at this time and also pointed out that there is no regulatory provision ilmt would bar the current - i application at this time. The Staff agrees. We conclude that, unlike license j renewal, where a specific application period is specified (10 C.FR, 654.17), l there appears to be no regulatory bar for the early application before us. j We thus will consider the application at this time. On the other hand, altlough certain of the contentions involve matters that could conceivably be moot by the time of the recapture period, we will taic facts as they exist today and apply the results of our review as of the date of our final decision in this proceeding or l (assuming we do not bar the amendments) of the license amendment, whichever i comes later. In other words, the Applicant cannot have it toth ways: with the early application comes the need to consider and rule based on facts that j cunently exist We turn now to the contentions before us.- 2. Contention I ne San leis Obispo Mothers for Peace contends that Pacific Gas and Electric Company's proposal to extend the life of the Diablo Canyon Nuclear Power Plant for more than 13 years i h 14 I s F r I I h r i

r I ? -l (Unit 1) and almmt 15 years (Unit 2) should be denied lecause PG&E lacis a sufficiently cffeaive and aunprehensive surveilbnce and mairnenance program.3' _j t a. MFP Position In asserting this contendon, MFP focuses on section 4.2.3 (" Surveillance and Maintenance Programs") of the Applicant's License Amendment Request 92-04, ~ in which PG&E submitted its request for the operating license amendments at y issue in this peceeding. "Ihat section states that these" programs assure that any j significant degradation of plant equipment will be pmmpdy identified and cor-rected throughout the proposed 40-year operanng license terms."" Throughout the application, according to MFP, PG&E relies on these programs in justifying the acceptability of many of the SSCs. MFP asserts that these programs "[have]. been noted as having significant weaknesses."2* MFP attributes the weaknesses to the " performance based pricing" rate-setting mechanism to which PG&E is subjected by the California Public Utility Commission. As bases for the alleged weaknesses in the programs, MFP cites a number of NRC inspection reports, notices of violation directed at the Appscant,- observations of various NRC personnel (at enforcement conferences and through -i other means), and Applicant Licensee Event Reports (LERs). MFP leads off with alleged instances where the NRC has " repeatedly cited IG&E for its slow response to correct maintenance problems." Specifically.

1. Inspection Repon 92-17 (May 12,1992), ameerning failure to correct a condition i

involving reverse rotauon of containmera fan cooler units (CFCU) 15.

2. A Notice of Violadon, dated June 19,1992, involving the same CFCOs.

3. An enforcement conference repon Onspecdon Repon 9219) also relating to the CICU maner and idennfying three apparent violations (one of which was later l withdrawn). In that same report, an NRC official allegedly criticized PG&E for i the excessive nme taken to address censin operational problems in a systematic manner. t Failure prornptly or effec 6vely to identify pmblems relating to the posinvc dis-placement diarging pumps (PDPs), as discovered in an inspeedon conducted from June 2,1992 through July 13,1992 (based on Notice of Viola 6an daied August t [113,1992, inspection Repon 92-20.) i 3'MFP supplanent at 5. "The *surveTance and Maintenance Pnigrams" covered by this secuan an dermed to include the lunervice Inspection OSI) bgram, inservice Testing OsT) bgram. Envamnmental Qualirication (EQ) Program, and Maintenance Psogram, MFP supplement at 6. f 26 P 15 .? I h p- -a g

~ 2{ l t MFP next asserts that {m]aintenance and surveillance practices at Diablo Canyon.. have been 'urther criticized by the NRC for lack of attention to detail, poor or incomplele work,' inadequate instructions to personnel, and ineffective surveillance." Tic following examples are provided: 1 L The first example provided is not an "NRC criticism" but rather a Licensec ; Event Repon (LER) submined to NRC by the Applicant. The report stated - that tools, plasde tool bags, chnhing and other items had been left unattended j in the containment. A PGAE invesdgadon determined dat the cause was de failure of four individuals who entered the corsainmcra to comply with surveinance .j recordkeeping requirements. LER 2-91012 00, dated March 5,1992. ~l 2. The discovery by NRC during a January 1,1992-February 3,1992 inspeedon (92 OI)of a malinenance violation,irwinding de failure of licensee personnel to dacct for over 7 days the failure of a reanct cav4y level instrumesa; this was a repeat of a 1990 failure of the instrument that lad not been Armed for over 2 mornhs A -l Notice of Violation dated February 28.1992 was ciud.

3. The report by NRC (Inspeaion Report 91-39, dated January 24,1992) of weak-

-I nesses in the motor. operated valve (MOV) te ing program. .i i 4. The sepon by NRC (Inspecuon Report 92-14, dated June 5,1992) of PGAE's

r failure to provide written instrucdons for de assembly of the expansion bellows to

.l the turbocharger of the diesel generator EDG-2-3. } .)

5. 11e next example is not a sepon by NRC but instead was derived from an LEit i

It concerned corrosion on DIO supply piping that left the liner below trummtun .( wall thidness acquiremerns. It also concerned maintenance of coal tar protective coating. LER 1-92&J600, dated August 6,1992. j 6. The discovery by NRC (Inspecian Repon 92-21, dated August 18,1992) of gum, ~ candy wrappers, sunflower seeds, and/or smcAed cigarcties in 12 different locanons '{ in which eating, drinking and smoking are banned.

l At the prehearing conference, MFP referred to several other asserted viola-

] tions. It sought to distribute a supplemental statement, but the Board declined i to permit it to do so, inasmuch as the Applicant or NRC Staff would not have had an opportunity to respond adequately. According to MFP, all of the ex- .I amples reinforced MFP's position that the sheer number and repetitiveness of ~! the violations or discrepancies reflected on its face'a deficiency in the' main-tenance or surveillance programs. Because of the lack of an opponunity for j proper response, however, we are not considering these additional violations in j determining the admissibility of this contention. In view of all of the foregoing examples of alleged deficiencies in trnin- { tenance and surveillance practices, as set forth in its Supplemental Petition, .l MFP claims that the Applicant has had a consistent and chronic pattern of poor g t M st 9. l f 16 l i I i I I f n

m i i . maintenance and surveillance practices, that its program is neither adequate not. effective and that the license amendment should be denied. Alternatively, MFP - indicated that it would accept license conditions if denial were not wananted. (Tr. 59).

b. Applicant andSuffPositions t

De Applicant and Staff each oppose this contention on a variety of grounds. We Applicant first expresses the view that the maintenance and surveillance l programs are outside the scope of the proceeding, inasmuch as the amendment offers no changes to these pmgrams, which were subject to review at the operating license (OL) stage of review. It would relegate the Petitioner's j challenge to these programs to an enforcement forum, as provided by 10 C.F.R. f 2.206, for operational problems of the type underlying this contention. Next, alternatively assuming (but not conceding) that implementadon of tiese i programs may be within the scope of the proceeding, it expresses the view that the cited inspection reports, LERs and notices of violation represent isolated, out-of-context events that do not have any implications about the adequacy of [ the Applicant's maintenance or surveillance programs. He Applicant also cites favorable NRC Staff imdings concerning plant opemtions, as well as what it l deems to be favorable Staff fmdings in the Systematic Assessment of Licensee Performance (SALP) program. It asserts that fmancial considerations bearing ' upon the California rate system are not subject to review in an NRC licensing ) pmceeding. Finally, it points out that the majority of adverse findings concerning the maintenance and surveillance programs have been " closed out" to the Staff's satisfaction. De Applicant concludes that there is no real dispute between it i and MFP inasmuch as the cited bases are inadequate to serve as such." Ibr its part, the Staff initially takes the position that, to the extent that MFP ~j raises matters that concern current operation of the facility rather than operation - in the recapture period, those concerns are properly raised in a petition pursuant to section 2.206 and "may not" be admitted into this proceeding." De Staff t goes on to describe why the various violations or findings cited by MFP cannot, j in the Staff's view, form a valid basis for a contention. ~ With respect to the CFCU assertions of MFP, the Staff points out that the Notice of Violation on this mauer was withdrawn and that a contention may not l be based on information repudiated by its source. (As an aside, the Staff notes '{ that the Licensee was cited for oller matters involving improper maintenance of the dampers (in the CICUst) De Staff also points out that tie CFCU-situation was identified in an LER, not a Staff inspection report (a circumstance "PGLE Resparme et 3-4,14-25; Tr. 84. 8 stafr Repmae at 10. l 17 -l r v 5 i t t i i 6 F - - - =

i that MFP acknowledged at the prehearing conference).2" The Staff concludes that the CFCU maintenance problems will be mooted long before the recapture period.28 c. Board Analysis (i) _ We disagree with both the Applicant and Staff that operational pmblems such as those cited by MFP need be relegated for challenges to the section 2.206 forum, "Ihat provision does no more than '.o permit the petitioner to request the NRC Staff-a party to this proceeding - to institute enforcement action against the Applicant for a panicular violation or activity. With respect to the matters brought to our attention by MFP, the Staff has until this time not chosen to take siy such action. Although tie section 2.206 forum may be technically available to MFl, it is not the exclusive means for challenging these practices. When it provided an opponunity for a hearing, the Commission opened the door of this pmceeding for licensing challenges of this type. Moreover, the hearing rights available j to MFP through section 2.206 are scarcely equivalent to, and not an adequate i substitute for, those available in this proceeding. See Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,'18 NRC 1167, j 1175-77 (1983). Among other matters, the decision of the Staff to take or not take enforcement action pursuant to section 2.206 is purely discretionary - it is not subject to review by the Commission (except on its own motion) or by couns, even for abuse of discretion.10 C.F.R. f 2.206(c)(I) and (2); #cckler

v. Cheney,470 U.S. 821 (1985).22 Funher, hearings as a result of section 2.206 l

petitions are almost never granted. For these reasons, we do not believe that the Commission has closed off - l the.various challenges advanced by MFP to the adequacy of the' Applicant's i surveillance and maintmance programs. The Applicant has relied extensively { on those progmms to support the adequacy of its proposed amendment. MFP has referenced that reliance. Moreover, consideration of the implementation of those programs is one of the limited means available to challenge the adequacy of [ those programs. "Ihe only aspect of the programs that could have been examined ' at the OL stage of review was the validity of the paper programs. But, even l t 3 Tr. 9A 99. 21 statiReapunse at 14 al 22.ne Commissaan has agreed that section 2.206 actions under 10 CAR. Pan 52 are reviewahle -unlike acuers taksi under section 2.206 in other coments, such reviewabilny in that earnest was one af the primary ingmt. ems ( in the judicial approval or Pan 52. Nasclear IVera, arson ter=ce servace e, NRc. 969 F.2d 1169 (1992). The Court thers noted that *'the use to which a 5 2.206 petition is put - nat iis fann - governs ha smewshihty? M at 1178. De Commissian or S:aff (or Appbcara) has nas suggested that the eartion 2.206 petnian to which they would relegate MFP would bc sw.cwable at the behest r4 MIT. either by the Carrmussion inactrer vuhcially. j f f 18 i i I 'I l J

A~ ~ ~ I' q E J j assuming the continuing adequacy of the paper programs, the implementation of 1 those programs is the only real gauge of theireffectiveness. As the Appeal Board observed with respect to analytically similar quality assurance (QA) programs, ~ No QA program is scif-executing. "Ihus,inespective of how mmprehensive it may appear on paper, the program will be essendstly without value unicss it is timely, connnuoudy and f f mpicmemed. j properi i Consumers Powr Co. (Midland Plant, Units I and 2), ALAB.106, 6 AEC l 182, 184 (1973). We thus reject the positions of the Applicant and Staff that the implementation of the maintenance and surveillance programs cannot be. j questioned in thD proceeding. Further, the prior opponunity at the OL stage of review to question the paper programs was in itselflikely to have been circumscribed. Ibr, on paper, the only statement of those programs normally appears in various technical specifications j - there is no detailed progmm set forth in the Applicant's FS AR, except through incorporation by reference. Moreover, the programs as a whole need not comply with any NRC regulations and are merely subject to approval by the NRC Staff." i, Indeed, at the operating license stage, a timely challenge by an intervenor would not have been possible inasmuch as proposed technical specifications were not issued at the time when timely petitions would have had to have been submitted. - j (laite-filed challenges, although permissible, are explicitly not favored, and must ' i meet a balancing of the factors set forth in 10 C.F.R. 6 2.714.) l (ii) As for the claims that the cited incidents are not sufficient to indicate a problem with the surveillance or maintenance programs, we disagree. Although . j . the cited incidents each may rise to a level no higher than a level IV violation, { such violations "are of more than minor concern, i.e., if left uncorrected they . j could lead to a more serious concern." 10 C.F.R. Part 2, Appendix C, IV. l Moreover, when sufficient repetitive or similar incidents are demonstrated, i aggreg.stion and/or escalation of sanctions may well be in order. See Tulsa Gamma Ray,Inc., LBP-91-40,34 NRC 297, 305 (1991). Sufficient incidents have here been cited so that we could not, as a matter of law, hold that there are no problems with the maintenance or surveillance programs. Although none of the cited incidents individually' rises to the level of l I a serious violation, collectively they might well have some safety significance, - as MFP claims. ~ j Moreover, ahhough some of the cited incidents may in fact have little or no bearing on surveillance or maintenance practices, that is an evidentiary matter, (The single CFCU matter that the Applicant and Staff focus on as having no j L DThe Commiss%n has issund a Pok:y statement s=nwernmg snansmance prosrams, but ihai staument explicitly' ' { dachnes so impose any genicular standards. s4 Fod. Reg 50.611 Ghe, s.1989). 19 l ' i 9 l ? s

q 's : n,

• , y.h 3:'kz

3 bearing on maintenance or surveillance was not primariiy xclied upon by MFP -

only the CFCU violations bearing on maintenance.") ne favorable comments. i cited by the Applicant may counterbalance the negative comments relied on byl j MFP, But that is also an evidentiary question. Nor does the circumstance (relied ~ { on by the Applicant) that all of the alleged violations or adverse comments have ) been " closed out" by the NRC Staff indicate that implementation problems do not exist. Indeed, if the violations had not been closed out, far more serious enforcement remedies might well be in order. Nor is there any indication that the closcouts will render the impicmentation j question moot by the time of the recapture period. -In any event, were we to find that implementation conditions (as contrasted with license amendment denia!) were warranted because of problems with the maintenance or surveillance j programs, we would make those conditions effective as of the date of issuance ' of our Order in this proceeding or of the license amendment, whichever came. later." (iii) Ibr these reasons, we find that Contention I is a valid contention, and we hereby accept it into this proceeding. He contention is similar in type to ' j that accepted by the Licensing Board in Vermont Yankee, LBP-90-6, supra. De Applicant's point that the defects in the implementation of the maintenance or [ surveillance programs here are less severe than in Vermont Yankee is another l purely evidentiary question. And the contrast that the Applicant and Staff make concerning the more stringent contention rule in effect here is not meritorious. [ The revised contention rule requires a statement of facts - which MFP has i provided. De facts and the issue raised thereby must also be material - a requirement that MFP in our opinion has satisfied. Finally, the revised rule i requires a showing of a genuine dispute with the Applicant which, in our view, MFP has demonstrated. In sum, were the new contention rule to be interpreted to rule out this contention, a material issue would in effect be ruled out"of this proceeding. .i His is the type of " specific misapplication of the rule" that the Court in UCS indicated would be improper under the rule as applied. We note that, in proving its claim, MFP will not be limited to the specific ~ incidents relied on to admit its contention. As set forth in the Statement of Considerations for the revised contention rule, b " San MrP supplanaa at 11. D We ame that on dw basis d a proposed r.o sigmrscant hazardf analysis. de Apphcant seds to make de proposed amendmems effective pnor to de sencimian of dus proceeding. 20 4. 3 t i 1 1 j

~.- 1- .L. V: I t fihe ecuseraient requiremens does rd call squn[the iruervenor to make its case at this stage ip s of the proceeding. tut rather to indicate what facu se expert opinnet be in cre fut ur opinion .[ N', ', or many,of which it is amare er rh.sr poiar in simt which prtwide the tusis for its ecumentKin. f e 54 Fed. Reg. at 33,170 (emphasis supplied). hwidents such as those that MFP attempted to read into the record at the ~ prehearing conference may be acceptable, as long as they are snaterial to the implementation of the surveillance and maintenance prognirns. To the extent that MFP is asked M do m, however, it must identify prior to hearing all of the E incidents on which it intends to rely.in advancing and going forward with its j contention. 3. Contention 11 "[he San Luis Obispo Mathers for Peace ocasends that the swaposed license cuendn si - Diablo Canycu Nudcar Power Piara should not be grarned because PGLE's employees have [ run proven themselves skilled. rdiable or motivated enough to adequately protect the putdic safety.26 l a. MFP Position r r In suppon of this contention. MFP claims that the Diablo Canyon plant has been " plagued" with incidents related to personnel errors. It cites differang incidents or NRC comments set forth in four LERs, one PG&E leuer to NRC, and j three NRC inspction reports (one of which concerned a report by PG&E and led to a Notice of Violation). It concludes, generally, that the incidert.s in question j demonstrate a " consistent and repetitive pattern of poor and unsafe personnel performance" and that the license " extension" would further jeopardize safety, i because "persomici at the plant have not exhibited the expertise or motivation to i resolve detected safety problems or to prevent dangerous situations.*'2' Finally, .] it adds that, as the plant ages, experienced personnel will retire and there -} is no assurance that qualified personnel can be obtained and, further, that a j " maintenance program must rely on experienced and qualified workers."28

b. Applicant and Staff Positions i

De Applicant opposes this contention on essen'ially two bases. First, it claims that the contention represents a challenge to PG&E's technical qualifica-tions and that such issue was considered during initial plant licensing. Second,' { 26 MFP supplerners at 1314. 27 14 at 16. 2s14 at 16-3*l. f ? l 21 i I l 2 w f

i 5 } l l it asserts that the contention fails for lack of a basis indicating a gendine dis-pute between it and MFP. Specifically, it denics the accuracy of the claim of a consistent and repetitive pattern of poor and unsafe personnel performance. It-j derogates the significance o the cited incidents, claiming that they do not sup-j r port the systematic programmatic conclusion suggested by MFP, it also critkizes + MFP for ignoring favorable SALP reports in the functional area of operations.ry cinally, it concludes that, even if proved, the assenions would not entitle MFP I to relief. De Stati acknowledges that the incidents cited resuhed from personnel errors. But it asserts that, considered together, they da not reflect any recurring or pervasive problem with the competence of PG&E's employees. According to the Staff, they represent isolated incidents of the type that inevitably occur in. the operation of a reactor, and do not reflect any underlying breakdown in the 7 training, motivation, or reliability of the employees." l c. Board Analysis At the outset, we reject the Applicant's position that, because the technical qualifications of the Applicant were open to examination during initial licensing, they perforce cannot be examined here. Ibr that examination could not have i reflected any experience in operating with those technical qualifications. To claim that the program will stay the same throughout the recapture period and thus cannot be zeexamined is to state that, irrespective of the quality of personnel performance, there can be no collective examination of the company's operation - a result that would defy rational analysis and ignore the need for adequate protection of the public health and safety. :And, as set forth in conjunction j with Contention I (p.18, supra), the potential exandnation of various personnel practices under secaon 2.206 is not a practical substitute for a hearing here, at least for anyone ather than the NRC Staff. j De other major claim of both the Applicant and Staff has more merit. As they each point out, the incidents cited appear to have no common thread. Specifically, the four that were uncovered by the Applicant involve (1) a mobile PGAE Response at 26-27. De Applicam funher ennciaes MFP for ignoring hs *inrziad eQation to cammine the publicly available documentary maierial.... with aufreierd cam to mable it so uncover any information dat enuld serve as the foundanan far a specific cunantion." cuing Data foi.or Co. (Catawbe Nw1 car stone. Umta I and 2). AIAB4r7.16 NRC 460. 468 0982), and Dagnesw ligat Co. (Beaver YaDey Power stanon. Unh 2). tEP-844.19 NRC 393. 412 (1954). hat ebbgatana by its terms only apphes to publidy avanable informati<siin ' I' support of a cranennan. Although the Apphcant claims that h is " logical" as wcB en "corisistant with fundamema! canceps d fairness and judicial economySo apply the obliganan to infannancas both suppornvc cf and contrary to a pmposed contentaan, we daagrer. such an arnerpraanan would undu y emacerbeu the cons,dctable threshold t that pennoners mun almedy meet unda the pued caracanon rules. Cf. D=44 fewr Ca. (William B. Meguut Nuclear Stanan. Units I and 2). AIAB-143,6 Alf 621,62s (1973) (at evidczniary stage, au panics have an obligation to reveal aE informanen in their possemian corocrning a maner at issue). "statt Response at 19. 5 e i ' 5 ? f e +- --e g ww+

r aane coming too close to 500-kV power lines; (2) calibration of a steam flow channel being performed using an incorrect data sheet / scaling calculation; (3) a nonlicensed operator who filled the acid and caustic day tanks simuhancoasly, l causing an acid / caustic spill and a chernical mist to enter the turbine building; and (4) the isolation of the sprinkler fire water to the component cooling water and centrifugal charging pump areas in accordance with an equipment tagout request without the Shift Ibreman noting that a continuous fire watch was needed? The remaining three are founded on Staff inspection reports. Specifically, (5) the statement in an inspection report that, during a 3 ;nonth period in 1991, there " appeared to be a high number of noteworthy personnel error events"; (6) i the performance of inspections (,f the CFCU matter (discussed in conjunction with Contention I) without appropriate procedures; and (7) a reported weakness in control of lifting and rigging devices for heavy loads, panicularly in light of a year ago rigging problen involving a loss of offsite power. ? We agree that these ine dents or statements represent unrelated and widely disparate personnel incidents that collectively do not appear to amount to a failure of either the personnel program or related training programs. Unlike the .I numerous incidents cited in Contention I that relate, for the most part, to the specific maintenance and surveillance programs, the incidents cited here have no apparent common focus. Ibr that reason, we are rejecting Contention II. We note, however, that the

l incident of the missed fire watch (founded upon LER 1-92-008-00, dated July

? 22, 1992) is sufficiently related to the maintenance and sun'eillance programs, dealt with by Contention I, as well as the "Ihermo-L.ag Contention V (which we are also accepting in part) for it to be included in the litigation of either (or both) of those contentions. Further, the CBCU incident bears upon a subject that we have accepted for litigation in Contention I, and those allegations here .f' may also be examined in conjunction with Contention I. 4. Contention ill ne San Luis Obispo Mothers for Peace contends that PG&E's application for an extended license should be denied because PG&E has not taken adequare measures to detect the I presence of fraudulently certified components at Diablo Canyon Nuclear Pomer Plant Nor has PGAE demonstrated that it is capable of preventing tie acquisition and use of counterfeit parts in the future. Failure of such cxxnpannats could cause or contrilmite to an accideaa at j Diablo Canyon. hus. NRC tacks reasonable assurance that the plarn can safety operate beycmd its originallicznse period? 33 rd at 20 sL10. i Strr sum==a.i 17. l 1 ? 23 f + e '1 .i I I

i i ? .I t a. MFP Position l In support of this contention, MFP cites several regulatory requirements I concerning a licensee's obligation to establish suitable control programs for purchased parts and components. It references a General Accounting Office report and several NRC information notices or other statements to the effect that there is a general problem concerning bogus parts. With respect to Diablo Canyon, however, MFP cites two NRC inspection reports critical to particular [ specified procurement activities. b. Applicant and Staf Posuions j

r Both the' Applicant and Staff oppose this contention for not setting forth any viable basis for challenging the Applicant's procurement program. The Applicant notes that the criticisms advanced by MFP both related to nonsafety

) r procurements that were not subject to the Applicmt's quality assurance rules for-safety-related pmcurements. Moreover, in both cases, the Applicant provided information to the NRC that eventually led to the anest and conviction of the fraudulent vendors. Further, the Applicant cites an NRC Procurement-j Assessment Report that gave a favomble overall assessment of PG&E's program. The Staff observes that the only one of the cited Infonnation Notices having l - any beanng upon Diablo Canyon is one that concerns the felony conviction of a vendor after PG&E identified it as a seller of counterfeit valves. c. Board Analysis ,7 11 is clear that the cited incidents do not raise a sufficient question about -f PG&E's progmm to constitute an adequate challenge. In particular, the two inspection reports concern c.quipment the purchase of which is not estn subject to the procurement program for safety equipment. Rr these reasons, we are rejecting this contention. i 5. Contention IV 'Ihe San tmis Obispo Mochers for Peace contends that PGAE's application forlicense exten-l sian must be denied because age-related degradatian d systerns, structures and carnpanents unscaptably inucases the risk d accidents during the extended period d operation.38 t I .I 'I "M at 24, i -l M 5: i 1 t 'E I v I .I

f

f I

a. AfFP Position { In support of this contention, MFP claims that it is " common knowledge" [ ' that a wide variety of SSCs (it lists some twenty-seven of them) are subject to age-related degradation. It cites a GAO report concerning uncertainties in this [ area and stating that, accordingly, each plant applying for an operating license [ " extension" must be evaluated in light of its own operating history. It also references a speech by an NRC Commissioner. These materials are general statements that do not relate specifically to Diablo Canyon. Specifically with rega, to Diablo Canyon, MFP references two LERs, one of which concerned leakage from the chemical and volume control system [ and the other corrosion of piping associated with dicsci fuel oil and two fire i suppression system carbon dioxide lines.S' MFP further cites an article stating f that Diablo Canyon has been identified by NRC as a reactor with anticipated vessel embrittlement, and a newspaper account of PG&E's discovery of several age-related problems. MFP concludes that, as components age, the protubility of an accident increases, including accidents involving multiple failures of j equipment or more severe than the safety systems were designed to mitigate. b. Applicant and StaffPositions i ne Applicant and Staff view age-related degradation as a subject suitable for q examination in a license " renewal" proceeding but not in a recapture proceeding such as this one hey reason that the components have already been examined for 40 years of operation, and, if they age prematurely, maintenance and j surveillance programs are designed to detect and mitigate any such. effects. They note that the GAO reports related to license renewal and the Commissioner's speech related to common-rnode failure of steam generator tubes. They also question the accuracy of or weight that should Ic afforded the cited newspaper ? accounts. %cy further refererace the holding of the Ucrmont Yanlec Licensing f Board rejecting a similar contention, largely because of the ava. bility of maintenance programs. Rey conclude that this contention lacks a proper basis. I i c. Board Analysis We agree that the contention lxts an adequate basis. We also note that, to tic extent that degradation is subject to maintenance efficacv, the subject j will be examined in conjunction with the contention on that subject that we are 3 I accepting (Contention 1). Accordingly, we are rejecting this contention. "Ilus latw IIR 92-DDfr00. dated August ( 1992 - was niso cind in angunctice with Canentusi I and is to be reviewed by as in that anscat. D i 4-6 1! + [ I

6. Contention V ' h is the c<unentkzi of the San tmis Obispo Mathers for Peace that the hermo-tag material fans as a fire terrier sad. in facs, poses a bazard in the event of a firc or an carthquake, tJntil this situatkm is adequately resolved. the license for Diablo Canyon Nucicar Plant certainly should not be extended." a. MFP Position As a insis for this contention, MFP first asserts that Thermo-Lag is used I at Diablo Canyon (citing a PG&E Letter to NRC, dated July 29,1992, to this effect). MFP next refers to a series of NRC Bulletins _ warning pawer reactor operators that, based on cenain tests. Thermo-lag failed to protect cables ' and conduits. It references a series of compensatory measures that NkC has prescribed for nermo-Lag materials, including " roving human observers." it. then cites five incidents (based on two NRC inspection reports and three LER.) involving such matters as missed fire watches or the disabling by plant personnel j for personal convenience of fire protection measures (specifically, fire barriers).)' MFP observes that NRC proposes to treat the issue generically but to require " compensatory measures" in the interim. It asks that the license amendment be denied until PG&E has taken all measures necessary to end its use of Hermo-Lag for fire protection. (It addr that the risk of Thermo-lag is even greater in an area subject to carthquakes, as is Diablo Canyon.)

b. Applicant and Stqff Positions -

r' De Applicant describes this contention as addressing a current issue, generic in the industry, that is "not safety significant."" According to the Applicant, it is an issue that will be resolved generically, without regard to the expiration dates of the Diablo Canyon licenses, and accordingly is not within the scope of this i proceeding. The Applicant also references a letter to it from NRC accepting the interim fire protection measures adupted by PG&E. Finally, it asserts that l MFP has failed to develop a nexus between the fire protection measures and the proposed license amendments. As with cenain other contentions, the Applicant -l asserts that the Petitioner's only remedy for a perceived problem of this type is - i through a section 2.206 petition (under which the Staff has already declined to take action with respect to the Thermo-Lag question). - t "MrP supplaners at 28. 3'F/P also cites a purparted sodrucal study of the questian, denved inun a newspapa snick k turns out that the infamation in the newspaper anicis was ancanece and that no such separt exists, and Mf? conceded its enar in this repas at the pnAc.anng conference (Tr.14647) We are giving no consideration to this pupcried study. "PGAE Respese at s7. j r N) i )

\\

The NRC Staff disagrees with PG&E's conclusion that the Thermo. Lag is-sue lacks safety significance, but the Stati agrees that the issue is not safety significant at Diablo Canyon.58 It acknowledges that it has accepted the Ap-plicant's interim compensatory measures as providing adequate fire protection. The Staff claims that MFP has not shown acy basis for concluding that the Ap-plicant has not taken sufficient action to prevent any problems arising from its - use of Thermo-Lag. Further, the Staff assens that MFP has provided no basis on which it could be concluded that any problem with Thermo-Lag at Diablo l I Canyon would not be rendered moot for the recapture period, inasmuch as any needed action would be taken prior to that time." l l + c. Board Analysis This contention can be construed as raising a question of the adequacy of fire protection both on an interim and a permanent basis. Covering both aspects of the contention, MFP has provided bases for asserdng that problems with use of Thermo-Lag exist (the NRC Bulletins) and that Thermo-Lag is used at Diablo Canyon (the PG&E letter). However, the basis providoi for contending that fire protection on a permanent basis is inadequate -i.e., the purported study that in fact does not exist - is insufScient. (The connection to canhquakes, also app:;rently derived from the purported study, is also inadequate.) Thus, there is an insuflicient basis for the claim concerning the generic resolution of the Thermo-Lag issue, as applied at Diablo Canyon. This aspect of the contention is accordingly rejected-On the other hand, the p v* ion of the contention applying to the interim corrective action stands on a different footing. Bcts are provided to support this aspect of the contention - i.e., missed fire watches and disablement of fire barriers, together with the use of Thermo-Lag at Diablo Canyon and the existence of problems with Thermo-Lag. Moreover, there is no basis for requiring MFP to demonstrate that the interim measures will become moot by the recapture period, as asserted by the Staff. Those measures are scheduled to extend indefinitely, until superseded by a generic resolution of the issue. Terming the measures "ia.crim" does not limit the time of their applicability

• In any event, cs noted earlier, any corrective action found by us to be necessary would be made effective as of the date of our final decision or the license amendment, whichever comes later. Finally, required resort to section 2.206 is "NRC sta!r Raponse a 30 n.16.

1. 14 at 32.

"When the Conumssion wishes to impuse a ternunsdun date for knerbn nsasuns k does so espliculy. See, es, 20 CfJL H 50 44(c)(3) (combustible sss contat sysusns). 50 62(d) (Alvs requiremems), and 50.63(c) (kss d a!! ahernating current). 27

~ i f not appropriate - particularly where, as here, the Staff has already unilaterally denied a similar petition. 7; Ibr these reasons, MFP has met all applicable requirements for setting forth f a contention concerning the interi~ f.re-protection measures. We could provide - various forms of relief, ranging from license denial to conditions designed to improve fue protection pending generic resolution of the Hermo-Lag issue. Accordingly, this contention is accepted, limited to the litigation of interim fire-protection measures.*2 i t 7. Contention V1 l The San 1. mis Otsspo Moders for Peace cxwnends that l'G&E's inability to properly store and handle hazardous msterials is anather indication d the company's inadequate ctrarat j programs and personnel. (Refer to Caraentians I and E.) PG&E*: violations of NRC regulatiors affects the heahh of its employees, the local environment, the iraegrity of safety-i related equipment, and thus the safety of the general putdic. On this basis,PGAE's proposed license extension must he denied." a. MFP Position In support of this contention, MFP cites a number of NRC inspection reports and Notices of Violation, and a Licensee Nonconformance Report, dealing. with such matters as the mislabeling of low-level waste and chemical storage. 'l containers, the failure to properly post areas in which waste is stored, the failure to perform a whole-body frisk immedmtely following a person's exit from a j contaminated area, and the failure to include certain chemicals on a specified list.

• Ihese violations or failures are said to endanger workers and have " implications

l for the integrity of safety-related equipment as well, thus jeopardizing the health and safety of the general public."'

t i I

b. Applicant and Stqff Positions De Applicant opposes this contention because it involves operational issues that, in its view, are beyond the scope of this proceeding. Further, it claims that the allegation that labeling and posting practices at Diablo Canyon have

" implications for the integrity of safety-related equipment" lacks any basis. I i. ? '3 We empress no opinian wah aspect to the AppLcara's entonsac arguments 00&E Response at173s, especially j m A2) concerrung the htsability or gersene issues. inasmuch as the issue we are accepting for liugation is not such r en assus. hDP supplanent at 31. C ld at s4 35. U i ?! 28 ]

A De Staff claims that the asserted violations and deficiencies were discovered I in a Staffinspection devoted to the Applicant's occupational radiation protection program and are relevant only to workers at the facility. It claims that MFP J lacks standing to represent workers. Like the Applicant, it claims that MFP has l provided no basis for its claim that the practices may affect the general public. [ r

c. Board Analysis

'l in our discussion of standing (supra pp. 10-11, 12), we already ruled that MFP lacks standing to assert claims on behalf of workers. Although we believe j that occupational practices affecting the public could form the basis for a contention in this proceeding (contrary to the assertion of the Applicant), vt agree with both the Applicant and Staff that MFP has provided no basis for its claim of consequences to the general public. Accordingly, we are rejecting this contention. j E 8. Contendon VII The San Isis Obispo Mothers for Peace casends that the proposal to cuend the opersdng life of the Diablo Canyon Nudear Power Plant for an addidonal 15 years unust be denied because of the unsolved problein of radiosaive warte storage and disposal" 'f a. AfFP Posidon ) his contention takes issue with the portion of PG&E's license amendment j application dealing with the disposal of spent fuel, stating that PGAE has a contract with the Department of Energy for tic disposal of spent fuel. MFP j claims that there is no assured storage location, either permanent or interim, for such waste. It states that the problem should not be treated generically inasmuch as carthquakes make the Diablo Canyon spent fuel pool likely to be deformed (citing actual deformation of the spent fuel liner at PG&E's 11umboldt Bay l Power Plant as the result of an carthquake). -j ' b. Applicant and Staf Positions As both the Applicant and Staff point out, this contention is barred as a matter t oflaw from operating license and operating license amendment procec4ings. As set fonh in 10 C.F.R. 0 51.23(a): I " M. at 35. g i r i l b [ f

.~. _ b b ' i t he Cornmissian has made a generic determination that,if nemssary. spera fuel generated in any reactor can be stored safeh and without significata environmernal impads for at least 30 years beyond the licensed life for operation (which may include the term of a revised or l renewed license) of that reacts at its spent fuel storage basin or at either onsite or offsite independera spera fuel storage installations. I x See also 10 C.F.R. 651.53(a) (Applicant's Supplement to its Environmental-Report need not discuss any aspect of the storage of spent fuel within the scope ,l of the generic determination in secdon 51.23); Vermont Yankee, l.BP-90-6,31 'l NRC at 94-95. ~ I t t c. Board Analysis ' r We agree that this contention is generally bar ed as a matter oflaw. Further,- . j to the extent that it attempts to challenge the lack of safety of the cunent spent - l i fuel pool, it is not supported by an adequate basis. The alleged defects at Humboldt Bay are not relevant to, or suggestive of, defects with regard to the i Diablo Canyon spent fuel pool. Indeed, MFP has not even alleged, much less l demonstrated, that the design at llumboldt Bay is any way comparable to that at Diablo Canyon. j in view of the foregoing, we decline to admit any aspect of this contention. 9. Contendon VIH ' i He cmergency i y. ass program for Diablo Canyon Nuclear Pour Plant is inadequate i to prcsect public heahh and safety. De San Luis Obispo Mathers for Peace contends that l until this program is revised and improved. PGAE's request for a license estension canncs ,l he ocsisidered." a. MFP Position ' l I Petitioner cites NRC Inspection Reports 91-15 and 92-15 and a FEMA report ] dated April 1,1992, as bases for its contention. 'Ihe reports cite particular deficiencies in performance of the Licensee or local government noted during i exercises of the Diablo Canyon Emergency Plan conducted in 1991 and 1992.- j Most of the deficiencies cited by Petitioner involve failures of personnel to follow procedures. These include, for instance, delays in the transmission of protective action recommendations (PARS) from the Licensee to the County, j failure to verify reactor shutdown, failure to refer to all Annunciator Response j i du at 3s. _..k E ? i i -1 - 1 1 I

.i l.. Procedures, and several instances of failure to follow procedures in the per-formance of emergency-related tasks or communications. Rese failures lead Petitioner to conclude that PG&E's and County's em-playecs are inadequately trained for emergency response and unprepared to act efficiently in an emergency. Accordingly, MFP urges the Board to deny the license amendment pending correction of the asserted deficiencies in personnel training. b. Applicant and Staff Posi: ions De Applicant opposes admission of this contention on two grounds. First, it' claims that there is no nexus between the proffered contention and the proposed license amendment because the amendment does not change the emergency plan in any way. Second, it claims that t!c inspection reports cited by Petitioner do not provide support for the contention because all findings cited in the reports. have been addressed by PG&E and closed out by NRC. ne Applicant argues that i tie contention is beyond the scope of the proceeding and should be rejected." The NRC Staff opposes admission of this contention for the same reasons cited by the Applicant. Additionally, however, the Staff argues that to be liti-gable in any proceeding, contentions concerning emergency planning exercises must allege 11411 the exercise revealed a fundamental flaw in the emergency plan. A fundamental flaw is defined as a failure of an essential element of the plan that can only be corrected through a significant revision of the plan itself. Under this standard, minor or isolated problems on the day of the exercise do not constitute fundamental flaws in the emergency plan. According to the Staff, MFP has not advanced any rationale for concluding that the flaws cited in its contention are indicative of a pervasive breakdown of any essential element in the emergency preparedness program sufficient to constitute a fundamental flaw in the program. Accordingly, for reasons cited by the Applicant, and for the asserted failure to allege a fundamental flaw in the emergency plan, the Staff concludes that the contention is inadmissible." c. BoardAnalysis De Commission has limited the scope of litigation on emergency prepared-ness exercises to a consideration of whether the results of an exe:cise indicate that emergency preparedness plans are fundamentally flawed. It has determined that minor or ad hoc problems occurring on the day of the exercise are not "PGAE Respmse at 43-45.

1. staff Resymse at 343s.

t ~ 31 t

relevant to licensing and may be excluded from consideration in a hearing. The Commission has explained that a fundamental flaw in the plan is a deficiency that would " preclude a finding of reasonable assurance that protective measures can and will le taken." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CL1-86-11,23 NRC 577,581 (1986). A fundamental flaw in an emergency preparedness plan has two essential components. First, the deficiency must reflect a failure of an essential element ' of the plan; and second, the deficiency must be sufficiently serious t!1at it can be remedied only through a significant revision of the plan. With respect to the first factor, an essential element should be determined by reference to the sixteen emergency planning standards set forth in 10 C.F.R. 5 50.47(b) and the requirements of 10 C.F.R. Part 50, Appendix E. Long Island Lighting Co. (Shoreham Nuclear Power Station. Unit 1), ALAB-903, 28 NRC 499, 505 (1988). Deficiencics that alone do not constitute a fundamental flaw can be considered collectively provided that "they are pervasive and show a pattern of related or repeated failures associated with a particular essential element of the plan." Ilowever. [w]here the ocSciency is the resuh of a particular persun's failure to follow the requircrnents of the emergency plan itself, such de6ciency is nat a fundamental flaw unless that person performs a entical role under the plan and there is no teclup structure or provision that would mitigate the effects of the individual's failure. Id. at 505-06 (footnote omitted). The second factor requires consideration of how the deficiency can be corrected. "If the involved portion of the plan itse*f must be reassessed and reconceived to a significant extent in order to prevent such a failure in 114 future, then there is a fundamental flaw." llowever, "where the problem can be readily corrected, the flaw cannot reasonably le characterized as fundamental." /d. at 506. "Any contention alleging that an exercise revealed a fundamental flaw in the emergency plan must address Nth of these factors...." Id. In this case, the Petitioner has submitted the results from three recent emergency preparedness exercises as bases for its belief that the Diablo Canyon Plan is fundamentally flawed. The contention together with the accompanying bases urge the Board to consider the irxlividual exercise deficiencies collectively in support of Petitioner's assertion that both the Applicant and local government personnel lack the requisite preparedness or training to effectively protect the public health and safety in an emergency. Training and preparedness of personncI are one of the sixteen essential elements of emergency preparedness set forth in 10 C.F.R 650.47(b)(15). 7b that extent, the petition partially meets the criteria for an admissible contention. 32 e I, ?

i t Ilowever, there is no insis provided that suggests that the cited deficiencies constitute a pervasive breakdown in a training program and the Petitioner does i not address the question of actions required to remedy the deficiencies. Nothing in Petitioner's filing suggests that the Applicant's program for radiological emergency response training must Ic reassessed or reconceived in order to t prevent such failures in the future. De deficiencies cited by Mf? appear to te attributable to individual failures ' to follow procedures occurring on the day of the exercise. No reason is given why such deficiencies could not be corrected by instructions to the individuals instead of restructuring the emergency plan. Both the Applicant and Staff assert that the deficiencies have in fact been addressed by the Applicant and closed out by the Staff. While such action is not sufficient per se to cause rejection of a cas.tention, it places a burden on petitioners under the pleading requirements of 10 C.F.R. 9 2.714(b)(2) to state I with specificity why the Staff remedy is inadequate and why an essential element of the plan must be reconceived. His has not been done. De Board concludes that the Petitioner has not satisfied the Commission's par *.icular requirements for admission of a contention based on nlleged funda-mental flaws in emergency preparedness exercises or its general pleading re-l quirements set forth in section 2.714(b)(2). Accordingly, Contention VIII is not l admitted. j i

10. Contention IX he Emergency Pre;mredness program for Diablo Canyon Nudear Power Plant is inadequale w protect the public heahh and safety during an canhquake. De importance of an effeaive prq; ram was demonstrated recerdy by the la.i of an adequate response to the effects d Iturricane Andrew in Florida?s I

a. MFP Position As basis for this contention, the Petitioner cites seismic dangers of the Hosgri j Fault and the Commission's asserted prior refusal to consider impacts of an i earthquake that either caused, or occurred coincidentally with, an accident at Diablo Canyon. He Petitioner claims that the impact of Hurricane Andrew on [ the Wrkey Point Emergency Planning Zone demonstrates that it is unsafe for NRC to ignore effects of kcal natural phenomena on emergency planning for i Diablo Canyon. Restricted emergency access assertedly due to storm-caused road blockage at Erkey Point is cited as basis for Petitioner's assertion by analogy that earthquake damage to roads and bridges near Diablo Canyon would a urr sung.m. ai e 33 i e i ) I f

+ i'! t 't inhibit emergency respese during a simultaneous nuclear accident. Petitioner buttresses the point witi.ssertions that storm warnings were available at Thrkey l Point prior to Hurricane Andrew while earthquakes would strike-suddenly ~ and without warning at Diablo Canyon. Rus, says Petitioner, there is no assurance that PG&E or the local government could respond rapidly to a 1 sudden carthquake. Finally, MFP cites a newspaper article that asserts that'= new seismic information exists that brings into question PG&E's assessment of f ground motion.during an earthquake. We Petitioner urges that the Diablo Canyon Emergency Plan be revised l to take into account new seismic information and that it include plans for a L [ simultaneous earthquake and nuclear accident {

b. Applicant and StqffPositions l

De Applicant opposes admission of this contention because principles of {' collateral estoppel and res judicata preclude consideration of this issue. De Applicant cites prior litigation in which Petidoner was a party where issues l related to simultaneous plant accident and canhquake were adjudicated and l resolved by a tribunal of competent jurisdiction *' The Staff also opposes admission of this contention on the basis that established doctrines of collateral -l cstoppel and res judicata prevent relitigation of issues decided against Petitioner [ in previous litigation." c. Board Analysis .t ne Board concludes that litigation of issues related to simuhancous carth-quake and plant accident at Diablo Canyon is prohibited by the doctnnes of collateral estoppel and res judicata. The Board also concludes that MFP has not provided an adequate basis to support revisiting this issue based on new seismic information that may have been developed since the operating license hearings were held. -t Petitioner attempted to save its contention at the prehearing conference by 1 denying that it was interested in relitigating the issue of simultaneous carthquake and plant accident. It claimed instead that it was concerned about diminished I resistance of the plant to carthquake stresses caused by aging components (11.. f 184-85). His claim, however, is contrary to the wording of the contention as. 481sc#ic Car and Dactric Co. (Diablo Canyon Nuclear Power Plant. Units I and 2), CtJ-5412. 20 NRC 249 0984); CLJ-84-13,20 NRC 267 0984); son Ims Obige Markersfer feats e. NAC,751 F.2d 12s7 (DC Ca. 1984). reFg t'8ared,760 F.241320 (DE Cir.19E5), ag'd.789 F.2d 26 (DC Cir.1986). see PGAI Responsa j at 45 46. "sufr Response at 39-40. -l kj 34 1 l l '1

l s 6 l I it was filed with the Board and parties, and it came too late and with too little .l basis (i.e., no scientific data) to permit admission of a revised contention. Ibr t , all of the foregoing reasons Contention IX is not admitted to this proceeding. We have every confidence, however, that the Staff has examined, or will j examine, any new information bearing upon the resistance of plant SSCs to i carthquakes. j i

11. Contention X l

• lhe San tmis Obispo Mathers for Peace believes that PG&E is not justified in their request ~

$t i to extend their operating License for Diablo Canym Nuc1 car Power PlanL Ahhough not apparent from the text of the contention, MFP is here challeng-ing the appropriateness of a"no significant hazards consideration" finding by the 3 Staff in this proceeding. MFP admitted as much at the prehearing conference .j (Tr.189). As we advised the parties and Petitioner at that prehearing confer-ence, this contention is beyond our authority to consider (Tr.190), It is solely i within the province of the NRC Staff.10 C.F.R. 6 50.58(b)(6). Accordingly. .j we reiterate our earlier denial of this contention (Tr.192). We note that, at the time of the Notice of Opportunity for Hearing in this i proceeding, the NRC also sought public comment on a proposed "no signi5 cant j hazards" finding. 57 Fed. Reg. 32,571-72,32,575 (July 22,1992). The Staff, j to our knowledge, has not yet issued a final finding (which does no more than j determine the timing of any evidentiary hearing)." We asked the Staff to consider this proposed contention as a public comment on the proposed finding, and the l Staff agreed it would do so (Tr.189).' q t

12. Contention XI

) r

• Ihe San imis Obispo Mothers for Peace contends that before permining the extension of PGAE's lianse for the Diablo Canyon Nuclear Ibwer Plant, PG&E must weigh the costs and benefits of continued operation of the plara - as required by the National Environmercal

$3 Puticy Act (NEPA) 42 USC 4332 I a. Parties' Positions l Through this contention, MFP seeks to have an Envimamental Impact State-i ment issued for the proposed amendments. It also seeks to have the question of need for power explored. l l 53 MPP suppicema at 43 52 At the sirne af the prancaring emforarse. the stafr had not ya made sudt a rmduig. Ts.1st. h0'P supp'emere et 4s- { $3 .e i l t 1 i

,y ? f I As the Applicant and Staff each point out, recapture amendments of the i type involved here are not among those actions for which an EIS is required (10 C.F.R.151.20) or categorically er.cluded (10 C.F.R. 651.22).' They are among those for which the Staff must prepare an Environmental Assessment j -(EA) determining whether an EIS need be issued.10 C.F.R. 651.21. As of the time of the prehearing conference, the Staff had not yet prepared its EA but indicated its intent to do so in the near future (Tr.193). The Board in the Permont Yanice recapture proceeding noted, however, that EISs had not been prepared in any of the prior recapture actions. 31 NRC at 97 98. b. Board Analysis. Insofar as this contention seeks an EIS, therefore, it is premature. We are sj denying it on that basis. After the Staff issues its EA, and assuming that the EA will not call for an EIS, MFP may submit a late-filed contention calling for an EIS. Such a ccatention, to be accepted, would have to be based on substantial and significant information indicating why an EIS is called for. As for the question of need for power, that question appears not to be open to us to r;xplore.10 C.F.R. il51.53(a),51.95(a),51.106(c). We deny outright { that aspect of the contention. 2 U. Conclusion with Respect to Contentions As set forth above, we have found two of the contentions (I and one aspect of V) to meet the Commission's revised requirements for contentions. (Cenain bases set forth for other contentions may also be considered under those contentions.) Coupled with our finding of standing, therefore, HEP has l satisfied the intervention requirements and will be admitted as a party /intervenor into the proceeding. III. OTilER MA'ITERS 1. On December 9,1992, the California Public Utilities Commission filed ~ .f a Notice of its intent to participate as an interested state, pursuant to 10 C.F.R. i 2.715(c). (We did not receive this Notice until December 14,1992, subsequent to the prehearing conference.) No party opposed this request. We could not A grant the request until we had formally authorized a hearing. We do so now. 2. At the prehearing conference, we advised the parties that, were we to accept any contentions, we would arrange a telephone conference call to armnge for discovery schedules and schedules for a further prehearing conference, if necessary, and the evidentiary hearing. We plan to hold this telephonc l l i t t i I u

~ -i conference during the period of January 27,1993-Fetruary 3,1993, and will f contact the parties to arrange a convenient time. l i IV. ORDER j l Rr the foregoing reasons, and in light of the entire record of this proceeding, - i it is, this 21st day of January 1993, ORDERED: 1. The request for a hearing and petition for leave to intervene of the San Luis Obispo Mothers for Peace (MFP) is hereby granted, 2. MFP Contentions I and V, to the cuent indicated in this Opinion, are .4 hereby admitted. t

3. MFP Contentions II, III, IV, VI, VII, VIII, IX, X, and XI are hereby

~j i denied. (Certain bases for these contentions may be included in the adjudication

of one or the other of the contentions we are admitting, as described in this j

Order.)

4.. The request of the State of California Public Utilities Commission to 3

participate as an intemsted state pursuant to.10 C.F.R. 52.715(c) is hereby - i granted. 5. A telephone conference call for the purpose of developing discovery. j schedules and considering schedules for further prehearing conferences and the l cvidentiary hearing is scheduled for the period of January 27,1993-February 3,- 1993, at a time to be established in the near future. I i t s t d i i - i 4 ? 1 37 1' i -i ? b

~ i 1 i 6. This Order is. subject to appeal to the Commission in accordancc with the requirements of 10 C.F.R. I 2.71*a (particularly 10 C.F.R. & 2.714a(c)). Any j such appeal must be filed within ten s'10) days after service of this Order. r TiiE ATOMIC SAFETY AND LICENSING BOARD i Charles Bechhoefer, Chairman i

ADMINISTRATIVE JUDGE

.t Dr. Jerry R. Kline {by C.B.) ADMINISTRATIVE JUDGE i i e Frederick J. Shon ADMINISTRATIVE JUDGE l Bethesda, Maryland i January 21,1993 F i p i l t ~! t t i 7 N i i

h i

r i ? i. s

i< F r 2 i, 1 i I i Directors' 1 i DECISIONS Under 10 CFR 2.206 l 1 i n l l l I l I f t i t I i I 1 ( ? l f l I i i I l f 1 -. -.. ~.. -

C!te as 37 NRC 39 (1993) DD-93-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director in the Matter of Docket Nos. 50-445 50-446 TEXAS UTILITIES ELECTRIC COMPANY, et al (Comanche Peak Steam Electrie Station, Units 1 and 2) January 15,1993 l 'Ihc Director of the Office of Nuclear Reactor Regulation denies a petition filed by Michael D. Kohn on behalf of the National Whistleblowers Center and certain confidential allegers. The Petition alleged that: (1) Texas Utilities Electric Company (TUEC or Licensee) made material false statements before the Atomic Safety and Licensing Board (ASLB) during hearings on WEC's application for an operating license in order to conceal significant safety flaws in the design for pipe suppon systems at Comanche Peak Steam Electric Station (CPSES); namely, that in violation of 10 C.F.R. Pan 50, Appendix B. WEC i transferred pipe support packages for review and certification between pipe support design groups that used different, multiple design criteria; (2) WEC's material false statements delayed construction of CPSES Unit I and thus were i germane to a contention in a related proceeding that TUEC had intentionally delayed construction of CPSES Unit 1; (3) WEC, Citizens Association for Sound Energy (CASE), and the NRC Staff deliberately withheld information from the ASLB about the transfer of pipe support reviews between pipe support design groups; and (4) WEC employees responsible for making material false [ statements to the NRC continue to perform critical engineering and quality assurance tasks at CPSES. Petitioners requested that the NRC provide the following relief: (1) hold licensing hearings to determine whether the Licensee has the requisite character and competence to operate a nuclear power facility; (2) fine and otherwise penalize WEC for making material false statements 39 I I I t i t

t to the NRC: (3) investigate whether the NRC Staff knew of TUEC's alleged material false statements and failed to act on such knowledge; and (4) determine which high-level managers were responsible for *IUEC's making material false statements, and tun such persons from all licensed nuclear facilitics, i DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 I. INTRODUCTION On July 30,1991, Michael D. Kohn submitted a request (Petition) addressed to the Chairman and to the Executive Director for Operations of the Nuclear Regulatory Commission (NRC) on behalf of the National Whistleblowers Center - and certain confidential allegers (Petitioners) to take action with regard to the Texas Utilities Electric Company's (IUEC or the Licensee) Comanche Peak Steam Electric Station (CPSES). Petitioners request that the NRC provide the following relief: (1) hold licensing hearings to determine, in view of TUEC's having made material false statements to the NRC, whether the Licensee has the requisite character and competence to operate a nuclear power facility; (2) fine 1 and otherwise penalize TUEC for making material false statements to the hTC; (3) investigate whether she NRC Staff knew of TUEC's alleged material false i statements and failed to act on such knowledge;8 and (4) determine which high-level managers were responsible for TUEC's making material false statements, l and ban such persons from all licensed nuclear facilities. 1 Petitioners assert as bases for their requests that (1) *IUEC r.ude material false statements before the Atomic Safety and Licensing Board (ASLB) during 2 hearings on TUEC's application for an operating license to conceal significant safety fla.is in the design of CPSES pipe support systems; namely, in violation of 10 C.F.R. Part 50, Appendix B, TUEC transferred pipe support packages for review and certification between pipe support design groups that used different, multiple design criteria; (2) *IUEC's material false statements delayed construction of CPSES Unit 1 and thus were germane to a contention in a related proceedinh that TUEC had intentionally delayed construction of CPSES Unit 1; 8 (3) TUEC, Citizens Association for Sound Energy (CASE), and the NRC Staff deliberately withheld information from the ASLB about the transfer of pipe i support reviews between pipe support design groups; and (4) *IUEC employees I As noted in my lener d August 28,1991, to Ponnoners. a copy of the hnnon was forwarded to the NRC offsee ofInspeciar oeneral. This Duvetor's Decision docs ans address aDegenons of NRC Staff misconduct 2NRC1kuiet Na 50445 and 5044 3 7he January 20.1986 applicanon af TUEC in extend its construenan pemus was the subject d a selated NRC bcensing gsmandmg. NRC Daciet No. 50-445CPA. See AtAB46s. 25 NRC 912 0957). 't I P i p I r w

i i responsible for making material false statements to the NRC condnue to perform critical engineering and quality assurance tasks at CPSESL The Licensec responded to the Petition by letter dated July 2,1992 (here. ) inafter, " Response").* I have now completed my evaluation of the Petition and have determined, for the casons set forth below, that no adequate basis exists to take action against [ the Licensee.' Accordingly, the petition is denied. 1 II, DISCUSSION l A. Pipe Support Certification Process at CPSES .g Petitioners assen that TUEC cenified individual pipe suppons in violation' of 10 C.F.R. Part 50, Appendix B, because, after field engineers made design changes to pipe supports during construction, "IUEC routinely transferred re-sponsibility for review of the field changes from the pipe support design group that originally designed the pipe suppon to another pipe suppon design group that used different design criteria. Petitioners contend that, as a result, the Li-censee applied " multiple design criteria" to individual pipe supports.s 1. Description of the Pipe Sityport Design Review and b Certificadon Process A summary of TUEC's pipe suppon design review and certification process, and its evaluation by the NRC Staff and by the ASLB in the Comanche Peak licensing proceeding provides a frame of reference for evaluating Petitioners' contentions. TUEC originally contracted the responsibility for pipe suppon design at CPSES to ITT-Grinnell. After it became apparent that TIT-Grinnell could not handle all the pipe support design work, TUEC contracted with an additional f company, Nuclear Power Sewices, Inc. (NPSI), and established its own pipe suppon design group, Pipe Suppon Engineering (PSE). All three pipe suppon design groups wem required to comply with design j criteria contained in the American Society of Mechanical Engineers (ASME) [ d The Response was sided *10 CFR 2.206 Pennan submined by Kahn, Kdm & Colapuno Regarding Comanche Peak steam Doctric sinnan."

1. This same claim was made to the NRC staff as rme of more than 60 aucgasms by s.MA lisaan in January i

1956. Resoluuan or thane allega6ans was transnuned to Mr. Itasan by a hatw dated January 6,1988, and _i signed by Philip F. hEKec. Deputy Deeciac, Comanche Peak Njea Dwision Ofrece d Special Psujects. The sta!T condaded that, because es Swne & Webster Engineenng Curparanan (sWEC) pipe sappan regualification i pagam would use one engmeenna appmsch. "lainy idanufied deficiencies which mi#s hevo n=hd fann the use orinemmissent design criteris will be cometed." and the *aneganan asuussted with the mas d inconsisters ? pipe support design criteria by the pavious design smurs has been adequately resolved." (Enclosure 1 et 1) I 41 6 i

i

? L

f i Boiler and Pressure Vessel Code hereafter referred to as the "ASME Code" and in Gibbs and Hill Pmject Specification MS-46A. Because neither the ASME Code nor Specification MS-46A dictates in detail the means by which an engi-neer is to satisfy the design criteria, differences in engineering methodologies or design appmaches to achieve compliance with the design criteria occurred between the three parallel pipe support groups. ' After a pipe suppon design group completed a pipe suppon design, it was released to the field for construction. If, during construction, the field engineering organization determined that changes were necessary to the design of a pipe support,"IUEC authorized implementation of the change lefore review [ and approval by the design organization. Changes by the field organization, as a result, were subject to possible disapproval by the design organization and a requirement to rework the pipe suppon in question. In response to the Petition,'the Licensee described its review of field engineering changes to pipe support design at CPSES, in most cases, the group that created the original pipe suppon design would alto review field engineering I changes to that design. In a few cases, however, de pipe suppon design group that originally designed the support did not have an establisted methodology for analyzing the acceptability of the field engineering changes under the ASME Code and Project Specification MS-46A or could not approve the changes using its established methodologies. In such cases,TUEC transferred responsibility for review and certification of the entire pipe support design to another pipe support design group, and the review and certification was performed on the entire pipe support design, not just the field changes in isolation. Ebr example ITT-Grinnell did not have a design approach foc Richmond inserts used in conjunction with tube steel. If the field organization modifi.X1 a pipe support originally designed by ITT-Grinnell to include Richmond insens in conjunction with tube steel, then ITT-Grinnell would be unable to analyze the modified design. Therefore, responsibility for review and cenification of de entire pipe support design would have been transferred to the PSE group, which did have the capability to analyze r such a change. During the CPSES licensing proceedings, Messrs. Mark Walsh and Jack Doyle raised nineteen broad concerns about de pipe support engineering pro-gram at CPSES, including technical issues, organizational issues, and design in-terface issues (an interface is the communication path and tte coordination of the l design process between various groups or organizations). The NRC Staff con-l ducted a comprehensive special inspection that consumed 1322 inspector-hours. 'f "Ihe NRC Staff evaluated each of the Walsh and Doyle concerns, inspected the design procedures and practices of the pipe suppon design organizations, and i 1 42 l, l P

inspected a sample of 100 pipe suppon designs that had gone through the entire design review process.' The three pipe suppon design groups were all required to comply with the de; .[ sign criteria contained in ASME Code and Project Specification MS-46A. Based in part on the NRC Staff analysis of the Walsh and Doy!c concerns alcut the pipe support engineering program, the ASLB found that the differences among the thrac pipe support design groups in " design approach" and " engineering ap-l proach," or in application of and interpretation of the ASME Code and Project i Specification MS-46A design criteria, did not create a safety concern or violate NRC requirements because each group had a specific scope of responsibility for a specific group of pipe suppons, and the three design groups did not share common in-line design responsibility for any individual pipe support.' Nonetheless, the ASLB found that TUEC failed to demonstrate that design deficiencies were being promptly conected and failed to satisfactorily resolve several design questions. The ASLB required TUEC to file a plan to resolve the Board's doubts? In June 1985, TUEC notified the ASLB that TUEC would resolve all remaining issues through the Comanche Peak Response Team (CPRT). TUEC also developed a Conective Action Program (CAP) that resuhed in the validation of the design of all safety-related and seismic Category 11 pipe supports at CPSES. As part of the CAP, SWEC became solely responsible for the design of pipe suppons at CPSES, and the three pipe support design groups were released. SWEC revalidated all pipe suppons to ensure that the pipe-suppons complied with the ASME Code and Prcject Specification MS46Ai~ and in doing so, used a single engineering approach. In Supplement 14 to the r Safety Evaluation Report (March 1988), the NRC Staff concluded that CAP provided a comprehensive program for resolving technical concerns identified ' { by the ASLB, CASE, NRC Staff, and CPRT, and that the CAP ensured that the design of pipe suppons at CPSES satisfied applicable requirements of 10 C.F.R. Pan 50. (NUREG-0797, SSER 14, at iii.) 2. Multiple Design Criteria In evaluating the Walsh and Doyle concerns, which included possible use of multiple design crit'eria, the ASLB found that all three pipe support design groups used the same design criteria, the ASME Code and Project Specification M46-A, but applied different " engineering approaches" or " design approaches," and that this arrangement was in compliance with 10 C.F.R. Part 501 -i

• Su special Inspection Team Report 50-445/E2-26 and 50-44(4244 (Fott.15,19E3).

+ 'LBP 83-81.18 NRC 1410.14S5109:3). i 8 14. at 3452% '14. at 14:6 51. t 43 i I t i

TUEC agrees that the three pipe suppon design groups interpreted and applied tie design criteria of the ASME Code and of Project Specification MS-46A with different design approaches. TUEC denics, however, that multiple design criteria were used for any individual pipe suppon. TUEC states in its Response that when responsibility for review and _cenifi-cation of field changes to pipe support design was transferred from the original pipe support design group to another pipe support design group, responsibility for review and certification of the entire pipe suppon design, rather than just the field engineering change, was also transferred. The Licensec also asserts that only one pipe support group had responsibility for any individual pipe suppon design at one time. (Response at 3.) Petitioners provide no facts to contradict this description of the review and cenification process. Moreover, it would not be possible, as an engineering matter, to review a field change in isolation from the entire pipe suppon design. The pipe support design group'that reviewed the field change would necessarily have reviewed the entire pipe support desigu l with the same design criteria used by all three groups, albeit with its oum design approach. Since the three pipe support design groups used the same design criteria but different design approaches, transfers of responsibility for review of field changes could have resulted in application of multiple design approaches to an individual pipe support.' However, because only one group was responsible for an individual pipe suppon design at any one time and because such transfers resul:ed in a review of the endre pipe suppon design by the responsible group, l rather than the field change in isolation, the transfers did not result in applicadon of different design approaches to any individual pipe support. Not only were the same design criteria applied to all pipe suppons, but individual pipe supports - were reviewed and cenified with a single design approach. Accordingly, I conclude that Petitioners have not demonstrated that TUEC used multiple design criteria for any pipe suppons; nor did they show that mul-tiple design approaches were applied to any individual pipe support. Petitioners provide no basis to disturb the findings of the ASLB that the use of three differ-ent design approaches by the three pipe support design groups did not present a safety concern and did not violate 10 C.F.R. Pan 50. 3. Transfer ofDesign Review Responsibility Between Pipe Support Design Groups l Petitioners contend that the Licensce's transfer of responsibility for review of l field changes from one pipe support design group to anotler was in violation of NRC requirements. To the contrary, NRC requirements explicitly permit such. l transfers: i i =

I I: l. L i f' Design changes, including field changes, shall be subject to design conuut measures - cornmensuiate with those applied to the original design and be approved by the organiza6an that performed the original design unicas the applicara designates another organization.3' l 10 CF.R. Part 50, Appendix B, Criterion III. Momover, since the transfers of design review responsibility between the - three pipe support design groups did not result in the application of multiple design criteria to any individual pipe suppon, but rather in application of a uniform engineering approach or design approach to the required design criteria i-- for individual pipe supports, no safety concern was raised by the transfers. l Accordingly, I conclude that there is no basis to conclude that the transfer l .of responsibility for review and certification of field changes to pipe support designs either violated NRC requirements or raised a safety concern, B. Material False Statements Petitioners identify the Licensee's alleged material false statements as certain statements made in testimony and affidavits by TUEC managers and employees, between 1982 and 1985, during the NRC hearing on TUEC's application for an operating license for CPSES. Specifically, Petitioners cite: 1. Testimony of John C. Finneran, Jr., Manager of Civil Engineering, that field &anges to a pipe support design went to the original design organizadon for review and erdficaricut.33

2. An affidavit of Mr. Finneran and others that states that changes made by Suuaural Engineers to an original design were nyiewed by the original designers before the design was sera to the field for constmaica, and that each organizadon and group had separate and disdna reponsibilides for the design of pipe supports.12

3. An affidavit by Mr. Finneran that design danges created by CMC's were reviewed by the

• responsible design organizadon" for cenificadon.33 Petit oners contend that not only did TUEC deliberately introduce false evi-dence that design changes were reviewed by the " original" design organization, but that TUEC also repeatedly made material false statements that pipe supports "were not being transferred between various pipe support groups" and were "not 30AddnianaDy, as the lhensee naies, ANs! N45111-1974 also permits such trarsfers:

NamaDy, the procedarca rar effec 6ng design ananges shall requist that changes be arsiewed and apprmal by das name groups or organirstions whidi reviewed and appnwed die engmal design documents. Where an ergammation which enginally was sesponsibic for appnwang a panisular design document is no langer senpesibic, the plant owner shau designate the new aspansible organization. 1:Tr. 4971,4985-86, and 5013. See Pc66an at 4. 12 Affidavit of D.N. Oiapman, J.C. Fmaman, Jr., DE Powers. R.P. Deubler, R.E. Ballard. Jr., and AT. PaAer, dated July 3,1984, at 13,36. See Pentian as 6-7, 13Affidevis of John C. Fanneran, Jr., desed Juns17,1954, at 4. See Petition at 6. 45

t 7 being certified using multiple sets of design criteria"" (Petition at 8), and that l TUEC never revealed the transfers to the ASLB, despite orders and requests of I the ASLB to be kept informed of potentially significant developments. Petition-ers also allege that the Licensee falsely testified before the ASLB that interfaces - between the three pipe support design groups were " separate" and " distinct." ne NRC may revoke a license because of material false statements made to j t!c NRC: Any license may be revtaed for any material false staicment in the application sw any statemens of fact required urmier section 182.... Atomic Energy Act, i 186a,42 U.S.C. 6 2236. At the time of the alleged material false statements, a material false statement within the meaning of section 186 of the Atomic Energy Act was a false statement, or omission of information, that was material. A material statement is one that is capable of influencing the agency decisionmaker," Petitioners contend that in this case the alleged material false statements were made with the intent to deceive the NRC about serious safety flaws in pipe suppon design, namely that multiple design criteria were applied to pipe suppons," Petitioners have not demonstrated that the Licensec made any false state-ments to the NRC, First, Petitioners assen that the Licensee " repeatedly" gave testimony before the ASLB that TUEC

• pipe supports were not being trans-ferred between the various pipe support groups and were not being cenified using multiple sets of design criteria." (Petition at 9, emphasis added.) Peti-tioners, however, provide no record citation to demonstrate that the Licensee either explicitly made such a statement or made any statement that could be interpreted in that manner, Second, in the context of the questions asked and answers given in the testimony cited by Petitioners,'il cannot be concluded that the Licensee provided testimony to the effect that review of field changes or

{ other changes to a pipe suppon design was always performed by the original pipe suppon design group, or was never performed by any other of the three pipe suppon design groups. He testimony cited by Petitioners, that review i "smos the tacenste was not in fact, usmg muhiple design enteria (sse secten !!A, saqpra), any mateness t,y -{ . the lacensee that it was not using vrmhiple design criteria cannot be canaidered ralaa. unrginie Decaric anid Po er Co. (&rth Anna hwsr stanon, tlnits 1 and 2), C1J422,4 NRC 460,487 ~ 0976), qf'd sed, am Virginia Decaric and Pomer Cc. v. NEC, STI F.2d 1289,129114th Cir.197th Unaed Stars v. WeinrsocA,231 F.2d 609. 701 (D.C. Cir.1956h United Saares v. Diar. 690 F.2d 1352,1357 58 (11th Or 1932). "In 1987, sane 2 to 5 years afur the aneged material falso stancmenta, the !GC adoped new sules unplemernmg section 186 d the Auxnic Imergy Act. Rose rules seguire umt any informaums suhrained by Lcensees to the { NkC naist be omnplete and accurais in au material respects. see 10 C.F.ll 4 50 9(a). De Commusinn decided tr, caercise its decretion in the opphcstian of the scrm 'haterial false statement" by hmiung the one of the term to egnginus situa6ans where there is an elemost d intent to misiced. stausnaiis d Crusidersnan. *C-and Accurney of Informa6an,"12 Fed. Reg. 49362,49367 (Dec. 31.1987), 4 I e I

i i + of changes was done by the original pipe suppon design group, was given in response to questions seeking to determine whether changes were reviewed by a pipe suppon design organization at all. The testimony was not clicited in response to inquirier whether the original, as opposed to another, pipe support design group conducted reviews of design changes made by the field engineers or other engineers. If any such inquiries were made,Ittitioners cite none. More-over, as Ittitioners note, Mr. Finneran also testified that review of changes to pipe suppon designs were performed by the "zesponsible" pipe suppon design group. As *IUEC stated in its Response, responsibility for review of each pipe support was assigned to only one group at any time; following any transfer, the new dcsign group, or " responsible design group," evaluated the design of the entire suppon. (Response at 3,9-10.) Petitioners claim that testimony of 'IUEC managers and employees in a i complaint proceeding before the Depanment of Labor (DOL)" demonstrates that TUEC had attempted to conceal the transfers between pipe suppon design j groups and the use of multiple design criteria frorn the ASLB during the earlier NRC operating license proceeding. Petitioners argue that this testimony shows that interfaces between the three pipe suppon groups were not " separate" and " distinct" as represented by TUEC, but instead that the three pipe support groups routinely transmitted pipe support packages "back and forth" among themselves (Petition at 9-12), presumably to mean that the groups in fact shared common design responsibility for individual pipe supports. Petitioners' assestion that multiple design criteria were used for individual pipe supports rests upon a confounding of " design criteria" with interpretation and application of design criteria (i.e., " design approach" and " engineering approach"). As the Licensee explains, this confusion was created when Licensee ernployees in their testimony before the ASLB and before the DOL used the term " design criteria" interchangeably with the terms " design approach" and " engineering approach." (Response at 19-24.) Petitioners do not dispute that all three groups were required to comply with and did apply the requirements of the ASME Code and Project Specification MS-46A. The testimony upon which Petitioners rely, when scad in context, was that each group interpreted and applied those requirements with its own guidelines, design approach, or engineering approach. The testimony of the Licensee's managers before the DOL, upon which Petitioners rely, was to the effect that { review of facid changes was sometimes transferred to another pipe support design group if the original design group could not cenify the changes, either because i 17# aran e.#m: lear Power ser=ku. lac., DolCass k s6 IJtAM Mr. s.M.A. IIasan cturged that is lad been terminated and blacklisted rar raising safety cancans abms prpe suppen design at CPsEs,in violation of section. 210 af Gm Energy Roorganization Act Mr. Itasan's cumplaint was denied after hearing befess an Adnumstrative taw hoge, su Recuenmended thx:ision and order. october 21,19K7. De secsetary of tater affamed the denist. see Faal Decision and order. June 26,1991 t i 47 -l a' i -? c -6 t

q f k it did not have the analytical capability or because the design change could not be certified under the original design group's methodology? As the Licensee explained, Mr. Rencher, upon whom Petitioners rely, also testified that each of l the three pipe suppon groups had its own " design guidelines, which differed in some respects, but that each pipe had to be qualified under one of these three -l design guidelines. (Response at 22-23.) The ASLB found that, by whatever. -} name, the different interpretations by the three pipe support groups of the ASME Code and Project Specification MS-46A did not violate NRC requirements? Petitioners incorrecdy assume that because transfers took place, there must have been a common or shared design responsibility between the three pipe suppon -I design groups, which necessarily resulted in the application of multipi desig', t criteria to individual pipe apports. Because the pipe support design group that - assumed responsibility after a transfer reviewed and cenified the entire repe suppon, there was, in fact, no common or shared design responsibility between l tic three pipe suppon design groups. (Section II.A. Supra.) By letter dated July 8,1987, CASE suggested to the ASLB that the Licensee ' Jf should provide the ASLB with all documents fmm the DOL proceeding because i some unidentified testimony was of potential significance to the Comanche i Peak licensing proceedings. However, CASE did not disclose the nature or significance of that testimony, and Petitioners fail to demonstrate that the matter [ was either pursued by CASE or taken up by the ASLB 'lhere is no basis to conclude, as Petitioners contend, that the Licensee's failure to disclose the l transfers during the CPSES operating license pmceeding violated any ASLB order or constituted withholding of evidence from the ASLB. Because the ~ transfers neither constituted a safety concern nor violated NRC requirements, it l cannot be concluded that the Licensee had an obligation to inform the ASLB of i tie transfers. Moreover, on May 17,1988, CASE provided the ASLB with tic January 6,1988 NRC Staff resolution of Mr. Hasan's sixty-five allegations, including allegations about muhiple or inconsistent design criteria, because CASE considered the information to be potentially significant? Since the Commche Peak operating license proceeding was dismissed on July 5,1988, -l based on a settlement and joint stipulation of the panies, without mention of that information " it cannot be concluded that the ASLB necessarily considered the-j fact of the transfers to be a potentially significant development. In suppon of their allegation of intentional withholding of evidence from the ASLB, Petitioners also rely on and request considention of a letter dated October 5,1990, sent to NRC Region IV Office of Investigations. Petitioners j I i "See Pahion si 1411, and 12 n 9. I "(EP-3341,15 NRC st 1454$1. "See was s. amra. I 23 tEP48-Ita.2s NRC 103 0980- .l 48 ' j I i I ~? I I 1 ~

b t request that the iderstity of the alleger named in the letter and the contents of that letter remain confidential. (Pr Non at 14.) Dat letter does not recite any factual information beyond that cc ined in the Petition, and does not provide any information not provided in similar allegations, which were found to be ~ 'without merit. Accordingly, I find that the Licensee's statements cited by Petitioners, when. evaluated in the context of their utterance, were not false. I also find that s Petitionen have not demonstrated that the Licensee was obligated to inform the ASLB of the transfers of review responsibility between pipe support design g.txipt. Because the Licensee made no false statements, and because the i transfers neither resutted in the application of multiple design criteria nor raised safety concerns, it cannot be concluded that the Licensee intended to deceive 1 the NRC about the transfers in order to conceal safety concerns. Herefore 1 find that there is no basis to conclude that the Licensee made material false statements to the NRC or to the ASLB. k C. Delay of Construction Because of Alleged Material False Statements Detitioners contend that TUEC's material false statements in the operating t h' proceeding delayed construction of CPSES Unit L (Id. at 8 n.4.) [ t However, Petitioners have not demonstrated that the Licensee made the alleged material false statements, and Petitioners have not explained how the alleged material false statements could have delayed, or did in fact delay, construction of Unit 1. Accordingly, there is no basis to conclude that the construction of CPSES Unit I was delayed by any staicments of the L' ensee in the operating license proceeding. Petitioners also contend that the Licensee's testimony in Mr. Hasan's com-plaint proceeding before the DOL, regarding the tonsfer of review responsibility between pipe support design groups, shows that the Licensee deliberately misled the ASLB in the construction permit amendment proceeding bcfore the NRC, regarding the Licensce's _ intentional delay of the construction of CPSES Unit 1. (/d. at 2.) Petitioners have not explained, nor is it apparent, how transfers of responsibility between pipe suppon design groups for review and certification of pipe support design could have delayed, or in fact did delay, construction of CPSES. It is just as likely that transfers of review and certification responsibility

j i

from a pipe support design group without the capability to analyze or certify a field design change, to a pipe suppon design group with the capability to analyze or certify a field design change, would speed construction. Even if such transfers had delayed construction, there is no basis to conclude that any delay was deliberate. j for the reasons given above, I conclude that Petitioners have provided no basis to conclude that the Licensee deliberately delayed t!e construction of CPSES 49 P i i

~ _, d l J or that the Licensee misled die ASLB regarding any delay in construction of CPSES. IIL CONCLUSION i 1he institution of proceedings pursuant to 10 C.F.R. {2.202 is appropriate only where substantial health and safety issues have been raised. Sec Consol-l idated Edison Co. of New York (Indian Point, Units 1, 2, and 3), CL1-75-8, 2 NRC 173,125-76 (1975); Washington Public Power Supply System (WPPSS i Nuclear Project No. 2) DD-84-7,19 NRC 899,923 (1984), This is the standard that I have applied to determine whether the action requested by Petitioners, or l other enforcement action, is warranted. l Rir the reasons discussed above, there is no basis for taking the actions i requested by the Petitioners. 'Ihe NRC Staff has carefully reviewed die Petition, assessed the specific references and citations in' the Petition,'and reviewed additional documents regarding Petitioners

• allegations. Petitioners have not demonstrated that the Licensee, in yiolation of NRC requirements, transferred responsibility for review of field changes to pipe support designs a that multiple pipe support desigt criteria were applied to any individual pipe j

support. Petitioners have presented no basis to conclude that any such transfers raised safety concerns Petitioners have not demonstrated that the Licensee .I deliberately delayed construction of CPSES Unit 1.. Finally, Petitioners have -not demonstrated that the Licensee made any material false statements to die' l NRC or the ASLB, violated any orders of the ASLB, or withheld evidence from l the NRC or the ASLB. Accordingly, Petitioners' requests for hearings to determine whether die. l Licensee has the requisite character and competence to operate a nuclear power facility, for imposition of a fine or other penalties on de Licensee, and to ban l certain of the Licensee's rnanagers from alllicensed nuclear facilities for making material false statements to die NRC are denied. ~l f l r i I k t i 50 i I t e f

-. ~, .-= 6 .t

t As provided by 10 C.F.R. $2006(c), a copy of this Decision will be filed '

-f with the Secretary of the Commission for the Commission's review. J FOR TiiE NUCLEAR -. f REGULATORY COMMISSION .l Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, i this 15th day of January 1993. { i i l ,t i.j t ? 6 ). f'. [ t i I i -I r i 4 k t i .i ~. 51 l r I I i -l .I

i .t Cito as 37 NRC 52 (1993) DD-93-2 UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION 4 OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director In the Matter of Docket No. 50-445 TEXAS UTILITIES ELECTRIC COMPANY, et al. (Comanche Peak Steam Electric Station, Unit 1) January 15,1993 The Director of the Office of Nuclear Reactor Regulation concludes that a petition filed by Sandra lAng Dow and Ricturd E. Dow raised no substantial health or safety concern to call into question the mntinued safe orcration of Comanche Peak Steam Electric Station (CPSES) and, therefort, denics de petition. In a Motion to Reopen the Record filed by Petitioners in the CPSES operating license proceeding for Units 1 and 2 Petitioners alleged that Texas Utilities Electric Company (TUEC or Licensee) repeatedly made false and misleading statements to the Atomic Safety and Licensing Board (ASLB) regarding the pipe support design process at CPSES, and that the ASLB relied on this false information when it issued sa operating license for Unit 1. DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 I. INTRODUCTION By Memorandum and Order of January 17,1992, CLI-92-1, 35 NRC 1, the U.S. Nuclear Regulatory Commission (NRC) referred to die NRC Staff under 10 C.F.R. 6 2.206 allegations by Sandra long Dow and Richard E. Dow l (Petitioners) concerning the pipe support design process at die Comancte Peak Steam Electric Station (CPSES), Unit 1. These allegations were contained in a Motion to Reopen the Record (Motion) filed by Petitioners in the CPSES 52 i i } t I

i t -[ operating license proceedings for Units 1 and 2. In the Motion, Petitioners r f alleged that Texas Utilities Electric Company's (TUEC or Licensee) witnesses repeatedly made false and misicading statements to the Atomic Safety and Licensing Board (ASLB) between 1982 and 1985. { In my letter of February 18,1992, I acknowledged receipt of the Petition and stated that the NRC would take action on the Petitioners

• request. I have now

[ completed my evaluation of the issues in the Petition and determined for the reasons set forth below that no adequate basis exists to take action against the. Licensee for CPSES Unit 1. l r II. DISCUSSION j i Petitioners asserted that TUEC's witnesses repeatedly made false and mis-leading statements to the ASLB between 1982 and 1985 and that these false j and misleading statements prompted the ASLB to rely on and adopt false or misleading facts concerning the question of pipe support design when issuing its December 28,1983, Memorandum and Order, LBP-83-81,18 NRC 1410, in _j the operating license proceeding for CPSES Unit 1. Petitioners also alleged that [ after the ASLB issued LBP-83-81, TUEC filed a series of motions for summary t disposition that included affida rits in which the affiant knowingly made false statements to the effect that each of the three design organizations had sepa-J rate and distinct responsibilities for the design of pipe supports and all design j changes during construction were returned to the original designer for correction and rechecking. i These allegations of material false statements by TUEC to the ASLB are l identical to those made in a 10 C.F.R. 9 2.206 petition filed by Michael D. { Kohn on July 30,1991. Both petitions assert that the ASLB relied on false i information when issuing LBP-83-81,8 and both petitions cite the same testimony l of a TUEC witness to support the allegation of material false statements.21 j found Mr. Kohn's allegation that TUEC officials made material false statements

l or intentionally misled the ASLB regarding the pipe support design process to.

l be unsubstantiated. (DD-93-1 Section ll.B.) As Petitioners have provided no .l I spsificany, Fusinnrurs aucge that the false ir.farman<m led the Ast.B to behave that: l he eviderme estabhshes that each of the three pipe suppmt desip ergenizations hasits own specifs soge j of responsibuity for a specire group of suppor.s. There is no need far cross communicatmn between the ' dune groups smce they share no comman, intne design napansioihty..,. he Board concludes that the Applicanas have adequately defmed and documemed the respoemibihty and paths d ccanmunicanon { between... the pipe support desip groups. No NRC regulatmn has been vicisted. t t ser Dow haltion at $5; Kahn Pennan at 6. l 2The Dows ciis the July 3,1984 affuisvit of Mr. J.C. Finneran. Jr., en pages Is and 36. he Kuhn Ptainen cites the same tesnmuny, an adduian to Mr. Fmueran's testimony before the Ast2. Although the Duws do not pnwide any citanons to Mr. Fanneran's testimony before the As13. the staff assurnes they are scfarnng to de i same testimany cited by Mr. Kuhn. 'I-! 53 y ? r i

p L 1- ~ information beyond that already provided by the Kohn I etition,' these allegations remain unsubstantiated, and I conclude that Petitioners have not raised any safety concerns. Ill. CONCLUSIONS "~ He NRC Staff has reviewed Petitioners

• allegation that 1UEC's witnesses '

provided false and misicading information to the ASLB regarding the pipe suppon design pmcess at the Comanche Peak Steam Electric Station Unit 1. The NRC Staff assessed the specific references and citations in the Petition and reviewed the documents attached to the Petition as well as many additional documents regarding the allegations in the Petition. On the basis of its entire review, the Staff has not found any substantial health and safety issues that would call into question the continued safe operation of CPSES. The institution of proceedings pursuant to 10 C.F.R. 62.202 is appropriate only when substantial health and safety issues have been raised See Consol-idated Edison Co. ofNew York (Indian Point, Units 1,2, and 3), CLI-75-8,2 NRC 173,126 (1975), and Washington Public Power Supply Sys:cm (WPPSS Nuclear Project No. 2), DD-84-7,19 NRC 899,923 (1984). His is the standard that I have applied to determine whether the action requested by Petitioners, or other enforcement action, is warranted. For the reasons discussed above, no basis exists for taking any action in response to the Petition because Petitioners raised no substantial health or safety issues. Accordingly, no action pursuant to 10 C.F.R. 6 2.206 is being taken in - this matter. The Staff will file a copy of this Decision with the Secretary of the Commis-sion for the Commission's review in accordance with 10 C.F.R. 6 2.206(c). POR THE NUCLEAR REGULATORY COMMISSION Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 15th day of January 1993. Iin fact. the Dows have pnmded sutsnandally las infunnaum than pnmded in the Kahn Twiuan of Ady 30 1991. 54 L _. _}}