ML20049H378
| ML20049H378 | |
| Person / Time | |
|---|---|
| Issue date: | 10/31/1981 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V14-N04, NUREG-750, NUREG-750-V14-N4, NUDOCS 8203020089 | |
| Download: ML20049H378 (151) | |
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Vol.14, No. 4 I Pages 787 931 L-i NUCLEAR REGULATORY COMMISSION ISSUANCES t
October 1981 I
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NUREG4750 Vol.14, No. 4 Pages 787-931 Available from NUCLEAR REGULATORY uRC,Geo S.ies e,-
Government Printing Office COMMISSION ISSUANCES Superintendent of Documents Wasnington, D.C. 20402 A year's subscription consists of 12 issues for this pubiicaten.
October 1981 Single copies of this publication are available from National Technical information Service, Springfield, VA 22161 Microfiche of single copies are avaitable from NRC/ goo Sales Program Washington, D.C. 20555 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors Denial (DD), and the Denial of Petitions For Rulemaking (DPRM).
The summaries and headnotes pre ding the opinions reported herein are not to be deemed a part of Inuse opinions or to have any inde-pendent legal significance.
U.S~ NUCLE R REGULATOdfCOMMISSION Errors in this publication may be reported to Vicki E. Yanez, Division of Technical Information and Document Control, Of fice of Administration, U.S. Nuclear Regulatory Commission Washington, D.C. 20555(301/492 8925).
Prepared by the Division of Technical Information and Document Control, Of fice of Administration, M. $. ht@rn
CONITATS Issuances of the Nuclear Regulatory Cesianission ALABAMA POWER COMPANY (Joseph M. Farley Nuclear Plant, Units I and 2),
Docket Nos. 50-348A, M-364A MEMORANDUM AND ORDER, CLI-81-27. October 22,1981 795 COMMISSIONERS CENTRAL ELECTRIC POWER COOPERATIVE, INC.
(Virgil C. Summer Nuclear Station, Unit No. I),
Nunzio J. Palladino, Chairman Docket No. 395A Victor Gilinsky MEMORANDUM AND ORDER, CLI-81-26. October 16,1981 787 Peter A. Bradford John F. Ahearne issuances of Atoanic Safety and Ucensing Appeal Beards Thomas M. Roberts SACRAMENTO MUNICIPAL UTILITY DISTRICT (Rancho Seco Nuclear Generating Station),
Docket No. 50-312 SP MEMORANDUM AND ORDER, ALAB-655, October 7,1981 799 Isseances of the Atoanic Safety Licensing Beards CLEVELAND ELECTRIC ILLUMINATING COMPANY,ct al.
(Perry Nuclear Power Plant, Units 1 & 2),
Docket Nos. 50-440-OL, 50-441-OL MEMORANDUM AND ORDER, LBP-81-42, October 2,1981 842 COMMONWEALTH EDISON COMPANY (Byron Station Units I and 2),
Docket Nos. STN 50-454-OLA,50-455-OLA MEMORANDUM AND ORDER, LBP-81-52, October 27,1981 901 Alan S. Rosenthal, Oiairman, Atomic Safety and Licensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety and ucensing Board Panel COMMONWEALTH EDISON COMPANY (Quad Cities Station, Units I and 2),
Docket Nos. 50-254-OLA,50-265-OLA ORDER, LBP-81-53, October 27,1981 912 FLORIDA POWER & LIGHT COMPANY (St. Lucie Plant, Unit No. 2),
Docket No. 50-389-A
{
MEMORANDUM AND ORDER, LBP-81-41 October 2,1981 839 t
t t
HOUSTON LIGHTING AND POWER COMPANY,ct(f.
WISCONSIN ELECTRIC POWER COMPANY (South Texas Project Units I and 2),
(Point Beach Nuclear Plant, Units I and 2),
Docket No. STN 50-498 OL, STN 50-499 OL, (Operating Docket No. 50-266-OLA,50-301-OLA License)
MEMORANDUM AND ORDER, LBP-8I-43. October 7,1981 848 MEMORANDUM AND ORDER.BP-81-54 October 30,1981 918 WISCONSIN ELECTRIC POWER COMPANY LOUISIANA POWER & LIGHT COMPANY (Point Beach Nuclear Plant. Units I Lnd 2),
(Waterford Steam Electric Station Unit 3),
Docket Nos. 50-266-OLA 50-301-OLA Docket No. 50-382-OL MEMORANDUM AND ORDER, LBP-81-44. October 13,1981 850 MEMORANDUM AND ORDER LBP-81-48. October 20,1981 877 WISCONSIN ELECTRIC POWER COMPANY METROPOLITAN EDISON COMPANY (Point Beach Nuclear Plant Units I and 2),
(Three Mile Island Nuclea? Station, Unit I),
Docket Nos. 50-266-OLA, 50-301-OLA Docket No. 50-289-SP,(Restart),(Reopened Proceeding)
MEMORANDUM AND ORDER, LPB-81-45 October 13,1981 853 MEMORANDUM AND ORDER, LBP-81-50. October 22,1981 888 WISCONSIN ELECTRIC POWER COMPANY PACIFIC GAS & ELECTRIC COMPANY (Point Beach Nuclear Plant, Units I and 2),
(Humboldt Bay Power Plant, Unit No. 3),
Docket Nos. 50-266-OLA,50-301-OLA Docket N150-133-OLA MEMORANDUM AND ORDER, LBP-81-46, October 15,1981 862 MEMORANDUM AND ORDER, LBP-8I-49, October 20,1981 885 Issuances of the Directors Denini SOUTH CAROLINA ELECIRIC and GAS COMPANY,et al.
(Virgil C. Summer Nuclear Station, Unit I),
WABASH VALLEY POWER ASSOCIATION and Docket No. 50-395-OL PUBLIC SERVICE COMPANY OF INDIANA MEMORANDUM AND ORDER, LBP-BI-47, October 15,1981 865 (Marble Hill Nuclear Generating Station, Units I & 2),
Docket Nos. 50-546, 50-547, (10 C.F.R. 2.206)
TENNESSEE VALLEY AUTHORITY DIRECTORS DECISION UNDER 10 C.F.R. 2.206, (Browns Ferry Nuclear Plant, Units I,2 and 3),
DD-81-18. October 13,1981 925 Docket Nos. 50-259-OL,50-260-OL,50-296-OL PRE! FEARING CONFERENCE MEMORANDUM AND ORDER LBP-81-40, October 2,198I 828 TEXAS UTILITIES GENERATING COMPANY,ct al.
'~
(Comanche Peak Steam Electric Station, Units I and 2),
Docket Nos. 50-445-OL,50-446-OL MEMORANDUM AND ORDER LBP-81-51, October 23,198I 896,-
WISCONSIN ELECTRIC POWER COMPANY (Point Beach Nuclear Plant. Units I and 2),
Docket Nos. 50-266 OLA 50-301-OLA MEMORANDUM AND ORDER, LBP-81-39. October I,1981 819
i i
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C<ta es 14 NRC 787 (1981)
CLl-81-26 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladino, Charman Victor Gilinsky Peter A. Bradford John F. Ahearne Thomas M. Roberts i
In the Matter of Docket No. 395A CENTRAL ELECTRIC POWER COOPERATIVE, INC.
(Virgil C. Summer Nuclear Station.
Unit No.1)
October 16,1981 The Commission denies a petition for reconsideration of its decision of June 26,1981 (CLI-81-14) in which it declined to make a "significant changes" determination under Section 105c(2) of the Atomic Energy Act, thus precluding statutory antitrust review of applicants in connection with their pending application for an operating license for the Virgil C. Summer facility.
NRC ANTITRUST REVIEW: SIGNIFICANT CllANGES DETERMINATION
~.
A petition for a "significant changes" determination pursuant to Section 105c(2) of the Atomic Energy Act does not require decision (and may not be decided) by a formal adjudicatory proceeding governed by the Cemmission's Rules of Practice,10 CFR Part 2, Subpart G.
RULES OF PRACTICE: MOTION FOR RECONSIDERATION Motions to reconsider an order sheuld be associated with requests for re-evaluation of the order in light of an elaboration upon, or refinement of, arguments previously advanced; they are not the occasion for advancing an entirely new thesis. Tennessee Valley Authority (llartsville Nuclear Plant, Units I A. 2A, IB & 2B), ALAB-418,6 NRC 1,2 (1977).
787
I i
NRC ANTITRUST CEVIEW:
OPERATING LICENSE STAGE the chtract:r of this matt:r cs an informal adjudicatory process for the purpose of arriving at a fair and reasoned determination. This is not, nor Under Section 10$c(2) of the Atomic Energy Act, a second formal can it be, a formal adjudicatory proceeding governed by the Commission's antitrust review at the operating license stage of a reactor licensing rules of practice for such proceedings in 10 CFR Part 2, Subpart G. Even proceedmg is the exception and not the rule.
with the modicum of control established by Commission schedules, the Commission has been almost besieged with pleadings, letters containing argument and the like. Petitioner Central, in particular, has taken every NRC ANTITRUST REVIEW: SIGNIFICANT CHANGES p ssible occasion to reargue and supplement its contentions before us. Even DETERMINATION the instant petition has been filed in an initial version on July 6 and an I
- I Under Section 105c(2) of the Atomic Energy Act, to determine whether "significant changes" have occurred requiring the matter to be referred to be terny a Snovmg targer has mak h extremely Meult h ec us n t e c anges t a entral aHeges. Wneseless, de the Attorney General for formal review, the "significant changes" Comm. nission has seriously endeavored to focus on root elements of determination requires that there be a factual basis for the determination and that the alleged changes be reasonab!y apparent.
tral's petition and provide a correct and reasoned response.
MEMORANDUM AND ORDER We turn now to the matters which Central urges should cause the On July 6,1981, Central Electric Power Cooperative, Inc. (Central)
Commission to reconsider its June 26 decision. For convenience Central's petitioned the Commission to reconsider its decision of June 26,1981. That order of presentation and numeration is retained.
decision denied Central's stition for an affirmative determination pursuant to Section 10$c. of the Atomic Energy Act of 1954, as amended, that
- 1. The Commission's Significance Criterion significant changes have occurred with respect to the activities or proposed Central contends that the Commission has wrongly adopted a sig-activities of South Carolina Electric & Gas Co., Inc. (SCEG) and South nificance criterion that requires a threshold determination that changes in Carolina Public Service Authority (" Authority" or " Santee Cooper")
the Applicants' activities "have antitrust implications that would be likely (jointly Applicants) related to the Virgil C. Summer nuclear power facil-to warrant Commission remedy." It argues further that the Commission ity. On consideration of Central's petition and the responses to it submitted erred in elaborating on that standard to require that alleged changes "also by SCEG, Authority and the NRC Staff, the Commission has decided to be so
- apparent' as to enable a petitioner for review to establish a ' factual deny Central's request and sets forth its reasons below.
basis' or
- specific facts' supporting them without the benefit of discovery."2 In the interest of brevity we do not again relate the extensive back s Central concludes that the significance criterion thus qualified impermis-ground of this matter. It may be found in our tentative order of June 30, sibly imposes a substantially greater obstacle to review thsn Section 105c.
1980. CLI-80-28,11 NRC 817, and in our decision of June 26, 1981',
interposes to a hearing after review.
CLI-81-14, which Central has asked us to reconsider (June 26 decision).
With regard to the significance criterion alone, we think Central's flowever, before responding individually to Central's enumerated allega:
arguments come too late. In its June 30, 1980 order the Commission set tions of error, we have some preliminary observations on the nature of the forth the criteria it intended to consider in determining whether significant process to arrive at decisions on significant changes pursuant to Section changes had occurred. The significance criterion appeared there in iden-10$c.
tical language to that of the June 26,1981 decision. In the June 30,1980 order, the Commission specifically stated that it was establishing new I.
Preliminary Olnervations 8 This rnemorandum will respond to the amended petition for reconsideration (hereinafter In the interest of exercising some control over the proliferation of
-peiiiion t written materials addressed to this matter, the Commission has at various 2 Petition at 2. Citations omitted.
times established schedules for responses. Nothing in those schedules alters 788 789
criteria and accordingly requested comments from the parties. Central's response to the Commission's request found no fault with the Commission's
- 3. Retargeting the Group Boycott Toward Central Rather them analysis except in one specific detail not relevant to this question.' Thus we Santee Cooper think it is late in the day for Central to present a new and elaborate legal Central alleges that the Commission should have found a situation thesis for the proposition that the significance criterion is inconsistent with nconsistent with the antitrust laws in that SCEG and the Authority statutory requirements. Motions to reconsider should be associated with entered into a private agreement to allocate Central's power exchange ud requests for re-evaluation of an order in light of an elaboration upon, or bulk power business to the Authority.
refinement of, arguments previously advanced. See Tennessee Valley As we noted above, Central's numerous filings have made it difficult for Authority (Hartville Nuclear Plant, Units I A,2A, IB & 2B), ALAB.418, the Commission to focus on the central allegations and grounds for relief.
6 NRC 1, 2 (1977). They are not the occasion for an " entirely new Based on a careful review of all of the proceedings, we understood thesis". /d.
Central's amended petition for a significant changes finding to assert that Apart from timeliness, we reject the merits of Central's arguments on Applicants had unlawfully joined to seek territorial legislation and that this this point. As we have explained twice before, the Commission's sig-agreement offended the antitrust laws. The instant Petition alleges a nificance criterion is fully consistent with the statutory intent that antitrust different agreement in what at least appears to be an effort to escape the review at the operating license stage be the exception not the rule.
implications of the state action doctrine of Parker v. Brown. Central had Regarding the requirement that there be a factual basis for its deter-sufficient opportunity before the June 26 decision to frame its allegation mination and that alleged changes be reasonably apparent, the Commission specifically and clearly and to develop this thesis. As we said before, a concludes that there is no room for reconsideration. Pursuant to statute it motion for reconsideration is not the occasion for presenting new ar-may not conduct a hearing at this stage. Likewise, by statute the deter-guments. Thus we do not believe that reconsideration is called for.
mination that it must make to refer the matter to the Attorney General for formal review is that significant changes have occurred. The language is
- 8. Santee Cooper's Alleged Refusal to Deal with Central on not "are alleged to have occurred" or "may have occurred" but rather Reasonable and Practicable Terms "have occurred". Thus the Commission's requirement is a practical inter-Central alleges that the terms of the Power System Agreement pretation that gives force to the statutory language.
(Agreement) negotiated with Santee Cooper are in themselves anticom-2 SCEG's Use of Coercios Against the Authority petitive. Both Central's Board of Director and the REA have approved the Agreement, and in the Ccmmission's Staff's view the Agreement provides Central alleges error in the Commission's failure to find the record as much as Central could have obtained by way of license conditions had sufficient to support its claim of coercion. In its June 20 decision the it proved a situation inconsistent with the antitrust laws in a hearing before Commission found that the factual basis presented in support of this claim a Licensing Board. Thus no case for reconsideration may be found here.
contained generalized hearsay and evidence contradicted within the sub-mission in which it was included.* Faced with internally conflicting state.
- 5. SCEG's Alleged Refusal to Wheel and to Negotiate Coordinated ments, the Commission found, among other things, that the statement that Detelopment of Generation with Central Santec Cooper knew it need not submit to coercion because the Justice Department would see that it got access to Summer was the more credible Under this heading Central combines its thesis of a group boycott (see one. No cause for reconsideration is presented here.
section 3 supra) with its earlier assertions of SCEG's refusal to deal to conclude that it requires wheeling from SCEG in order to avoid com-petitive harm.
Central's amended petition requested as relief wheeling from Santec Cooper or SCEG. The Commission has concluded that such relief is 3 Comrnents of petitiongr Central Electric Power Cooperative. Inc. at 1. August 25.1980.
- Compare Central's Petition at 10 with the Commission's decision. CL:-81-14 at 25.
afforded to Central by the Agreement it executed with Santec Cooper.
Moreover, the Commission believes that its acceptance of SCEG's asser-
Ii tions that it would provide ad hoc transmission was reasonable under the Since the Commission denied Central's petition on other grounds, it circumstances.5 Nothing presented by Central causes the Commission to abstained from re-evaluating its judgment on timeliness. Central's current reconsider.
explanations are therefore irrelevant.'
- 9. Alleged Error in Failing to Assess the Significance of
- 6. The Comunission's Refusal to Permit Discovery Santee Cooper's Acqaisition Offers Central again complains of the Commission's failure to permit discovery (and uses the occasion to characterize what it will find). The Commission Central argues again that offers to acquire its bulk power supply function and absorb one of its members were anticompetitive in nature.
has responded to this point. In its view discovery is not available because The Commission is satisfied that the Agreement between Central and this is not a formal proceeding.* Moreover, discovery is not the only means Santee Cooper provided a reasonably comprehensive resolution to the available to the Commission to obtain the necessary informatiori. The Commission staff routinely conducts its own investigation of each petition.
relationship between Santee Cooper and Central and to Central's alleged in this case the staff determined after conducting its own investigation that needs for power and trans.aission insofar as they relate to licensing the Summer facility. Thus the Commission did not need to resolve whether no formal antitrust review was warranted.
and to what extent a past " offer" would constitute an anticompetitive
- 7. The Commission's Standard of Proof situation.
Under another heading Central resumes its complaint regarding the
- 10. The Commission's Alleged Failere to Coasader the Asserted Commission's requirement that the factual basis be reasonably apparent Significant Changes in Their Entirety (see Discussion of Allegation I, supra). Central argues that the Commis-sion has applied here too strict a standard of proof.
Central appears to imply that the Commission examined its allegations We believe that our determination that the sign?ficant changes must be in isolation and failed to consider them in their entirety.
reasonably apparent is fully in accord with Congressional intent underlying in the process of responding to Central's allegations the Commission Section 105c.(2), that a second formal antitrust review at the operating was required to provide reasonably specific responses. However, it should license stage be the exception rather than the rule. Moreover, in an be clear that the Commission has considered the entire competitive situa-analogous area, the courts have made clear that a full-blown formal tion. In particular it concurs with Staff's judgment that the situation as proceeding need not be launched solely because some violation is alleged.
changed by Santee Cooper's and Central's Agreement is improved from a Porter County Chapter v. NRC. 6% F.2d 1363 (D.C. Cir.1979).
competitive standpoint.'
- 8. Allegation of an Unwarranted Commission Inference
- 11. The Effect of the Agreement en Market Forces with Respect to Timuliness This allegation of error is another attack on the Agreement which Central complains that the Commission has drawn an unwarranted Central and Santec Cooper concluded. The Commission views the inference with respect to the date at which Central became aware that it Agreement as an improvement in the competitive situation which providesin might find in the Commission a forum in which to assert its antitrust claims.
' Nonetheless nothing in Mr. Brand's affidavit to which the Commission is referred is necewarily inconsistent with an inference that might be drawn that Central knew of a possible Commission forum considerably before filing its December 1978 petition even as early as August,1977. We note further that Central has told the Commission that in 1976 it 8 June 26 Order. CLl-81-14 at 26 27.
was in consultation with antitrust counsel for the purpones of investigating its rights with
- We would add that there is no statutory right to discovery even in formal adjudicatory respect to the very matters here at issue.
proocediras, a See NRC Staff Response to Commission's Order of June 15. 1981, 11 12 February 10 1981.
f substantial measure the relief requested by Central in its Amended Peti-Cete as 14 NRC 795 (1981)
CU-81 27 l
tion for a significant changes determination. Nothing has been offered to cause the Commission to reconsider this view.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSON COMMISSIONERS:
For the reasons presented above,' the Commission declines to reconsider its order of June 26,1980. Accordingly, Central's Petition is denied.
Nunzio J. Palladino, Charman Commissioner Gilinsky did not participate in this decision.
Victor Gleinsky it is so ORDERED.
Peter A. Bradford John F. Ahearne For the Commission Thomas M. Roberts in the Matter of Docket Nos. 50 348A SAMUEL J. CHILK 50 364A Secretary of the Commission the 16th d y of ol$e, 981.
(Joseph M. Farley Nuclear Plant Units 1 and 2)
October 22,1981 The Commission denies petitions by the licensee and an intervenor for review of the Appeal Board's June 30, 1981 decision (ALAB-646) im-posing certain remedial antitrust conditions on the operating licenses for the Farley nuclear units; the Commission also denies the licensee's motion for a stay of the decision's effectiveness pending judicial review of the decision.
RULES OF PRACTICE: STAY PENDING APPEAL The four factors to be considered in reviewing a request for a stay are set forth in Section 2.788 of the Cenmission's regulations,10 CFR 2.788.
While no single factor is dispositive, the most crucial one is whether irreparable injury will be incurred by the movant absent a stay. Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-437,6 NRC 630,632 (1977).
RULES OF PRACTICE: STAY PENDING APPEAL (BURDEN OF PROOF)
' The Commission has noted the documents furnished by letter of September 14.1981 from The burden of persuasion on the four factors in 10 CFR 2.788 rests on centrars counsel wallace Brand. In its view these documents do not materially affect the June 26 1981 decision and the Commission therefore dechnes to give them further the moving Party. Public Service Co. of Indiana (Marble Hill Nuclear consideration.
Generating Station, Units I and 2), ALAB-493,8 NRC 253,270 (1978).
RULES OF PRACTICE: STAY PENDING APPEAL (BU DEN OF (3) whetiier the granting of a stay would harm other parties; and PROOF)
(4) where the public interest lies.2 i
To meet the standard of making a strong showing that it is likely t The burden of persuasion on these factors rests on the moving party.s prevail on the merits of its appeal (the first factor under 10 CFR 2.788),
While no single factor is dispositive, the most crucial is whether ir-L the movant must do more than merely establish possible grounds for reparable injury will be incurred by the movant absent a stay
- To meet the appeal. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units I, standard of making a strong showing that it is likely to prevail on the 2, and 3), LBP-77-7, 5 NRC 452 (1977). In addition, an " overwhelming merits of its appeal, the movant must do more than merely establish showing of likelihood of success on the merits" is necessary where the possible grounds for appeal.' In addition, an " overwhelming showing of showing on the other three factors is weak. Florida Power and Light Co.
likelihood of success on the merits" is necessary to obtain a stay where the (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185, showing on the other three factors is weak.* Moreover, where an applicant 1186-89, and ALAB-415,5 NRC 1435,1437 (1977). Moreover, where an is asking "as a preliminary matter for the full relief to which [it] might be applicant is asking as a preliminary matter for the full relief to which it entitled if successful at the conclusion of [its] appeal... [it] has a heavy might be entitled if successful at the conclusion of its appeal, it has a buroen indeed to establish a right to it."'
heavy burden to establish a right to it. Toledo Edison Co. (Davis-Besse On consideration of APCO's motion and the responses in opposition to j
Nuclear Power Station, Unit No. 1), ALAB-385, 5 NRC 621, 626 it filed by the other four parties to this proceeding,' the Commission has (1977).
determined that APCO's request does not merit the grant of the extraor-dinary relief requested.'
MEMORANDUM AND ORDER Accordingly, the application fcr a stay is denied.
Commissioner Bradford dissents in part from this order. His separate The Commission has determined to grant neither Alabama Power Com-view s attached.
pany's (APCO) nor Municipal Electric Utility Association's (MEUA) petition for review of the Atomic Safety and Licensing Appeal Board's decision of June 30,1981 (ALAB-646) in the captioned case.
APCO has sought review of the Appea Board's decision in the United States Court of Appeals for the Fifth Circuit' and on July 22,1981 moved a 10 CFR 2.788 codifies the criteria established by Virgrasa Petroleum Jo6bers ass *n v.
the Commission to stay during the pendency of litigation the effectiveness F P.C 295 F.2d 921. 925 (D C. Cir.1958).
.6
, uC arbic Hdl Nuclear Generating Station. Units l and of certain remedial antitrust conditions imposed on APCO's licenses to y of,ind a 3
g g
operate the Farley nuclear units.
- Pubhc senic, Company ofindiana (Marble Hdi Nuclear Generating Station. Units I and Commission regulations and precedent establish the agency law govern-2). ALAB-437. 6 NRC 630. 632 (1977), citing Permian Basin Area Rate Cases. 390 US.
ing decisions on stays and comport with judicial case law. Section 2.788 l47Ac Tot do E ison Company. et al. (Davis-Besse Nuclear Power Station. Units I.
of the Commission's regulations sets out the following factors to be con-tsp.77-7. 5 NRC 452 (1977), citing Environmentai Defense fund. inc. v. Froralle. 348 F.
sidered in reviewing a request for a stay:
Supp. 338,366 (W.D. Mo.1972), affd 477 F.2d 1033 (8th Cir.1973).
- Florida Power and light Company (St. Lucie Nuclear Power Plant. Unit 2). ALAB-404. 5 (1) whether the moving party has made a strong showing that it pRC II85 il86-89 and ALAB-415. 5 NRC l435.1437 (1977).
Toledo Edison Company (Davis.Besse Nuclear Power Station. Unit No.1). ALAB-385. 5 is likely to prevail on the merits; NRC 621. 626 (1977).
' In addition to APCO MEUA and AEC, parties in the proceeding were the Department of (2) wl!cther the party will be irreparably injured unless a stay is Justice (Department) and the Nuclear Regulatory Commission staff (Staff).
' APCO requested oral argument on both its stay request and on its petition for review. As granted'.
the Commission perceives no need for oral argument on either of these motions and the question of whether to hold oral argument is entirely a matter of Commission discretion.
APCO's requests are denied.
- Ala6ama Power Co. v. Nuclear Regulatory Commission and United States. Nos. 80-7547 and 80-7580. Alabama Electric Cooperative (AEC) and MEUA have intervened in that proceeding.
i i
ii Commissioner Gilinsky did not participate in this decision.
L[
For the Commission
[-l SAMUEL J. CHILK Atom.ic Sofety and
'l Secretary of the Commission Licensing Appeal
).
Dated at Washington, D.C.
the 22nd day of October,1981.
s.
SEPARATE VIEWS OF COMMISSIONER BRADFORD
- Boards Issuances I agree with the result of the Commission's decision as to Alabama ATOMIC SAFETY AND LICENSING APPEAL PANEL
.sD u
Power Company. However, I would take review of that portion of the j
Appeal Board's decision that finds that MEUA is not a potential wholesale Alan S. Rosenthat, Chainnan g
- f. jZ competitor.
t Dr. John IL Buck,Vice Osirman 7l Dr. Lawrence R. Quades Michact C. Fanar
[, a ^^' {
Dr. W. Reed Johnson
- -
- 44 Thomas S. Moore Oristine N. Kohl j ~,7;'t.
Stephen F. Eilperin
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Cate as 14 NRC 799 (1981)
ALAB-655 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
d ATOMIC SAFETY AND LICENSING APPEAL BOARD r
Administrative Judges:
Alan S. Rosenthal, Chasman f
Dr. John H. Buck Christine N. Kohl In the Matter of Docket No. 50-312 SP SACRAMENTO MUNICIPAL UTILITY DISTRICT q
(Rancho Seco Nuclear Generating Station)
October 7,1981 Upon review, sua sponte, of the record and Licensing Board's decision in this special proceeding (LBP-81-12) - which was instituted to deter-mine the adequacy of certain short-term actions and long-term require-ments for continued reactor operation ordered by the Commission as a result of the March 1979 accident at Three Mile Island - the Appeal Board defers judgment on the Licensing Board's decision that approved continued reactor operation and requests submission of further analyses and information by the licensee and NRC staff.
APPEAL BOARD: SCOPE OF REVIEW (SUA SPONTE)
It is the Appeal Board's practice to review sua sponte any final disposition of a licensing proceeding that either was or had to be founded upon substantive determinations of significant safety of environmental issues. Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-571,10 NRC 687,692 (1979).
APPEAL BOARD: STANDARD OF REVIEW (SUA SPONTE)
The Appeal Board's standard in conducting a review, sua sponic, is similar to that required in a contested proceeding. The Appeal Board may reject or modify findings of the Licensing Board if, after giving its decision the probative force it intrinsically commands, the Appeal Board is
convinced that the record compels a different result. Northern Starts (c) Implement a hard-wired control-grade reactor trip that would Power Co. (Monticello Plant, Unit I), ALAB-611,12 NRC 301, 304 be actuated on loss of main feedwater and/or turbine trip.
(1980).
(d) Complete analyses for potential small breaks and develcp and RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
(c) Provide for one Senior Licensed Operator assigned to the Licensing boards should not accept in individual license proceedings control room who has had Three Mile Island Unit No. 2 contentions which are (or are about to become) the subject of general (TMI-2) training on the B&W simulator.
rulemaking by the Commission. Potomac Electric Power Co. (Douglas Point Station, Units I and 2), ALAB-218,8 AEC 79,85 (1974).
44 Fed. Reg. T.779-27780 (May ll,1979). The Commission also ordered the licensee to implement "as promptly as practicable" these four TECilNICAL ISSUES DISCUSSED:
The licensee will provide to the NRC staff a proposed schedule for Auxiliary Feedwater System Reliability; implementation of identified design modifications which specifical-Anticipatory Reactor Trips; ly relate to items I through 9 of Enclosure I to the licensce's Small-break LOCA Analyses; letter of April 27,1979, and would significantly improve safety.
liigh Pressure Injection-censee w su t a faHure mode and cUcets analysis d the Operator Training and Competence-Instrumentation.
Integrated Control System to the NRC staff as soon as prac-ticable. The licensee stated that this analysis is now underway Hydrogen Control.
with high priority by B&W.
MEMORANDUM AND ORDER The reactor trip following loss of main feedwater and/or trip of the turbine to be installed promptly pursuant to this Order will I.
thereafter be upgraded so that the components are safety grade.
The licensee will submit this design to the NRC staff for review.
The Rancho Seco Nuclear Generating Station, licensed in 1974, utilizes a Babcock and Wilcox (B&W) pressurized water reactor (PWR). As a The licensee will continue operator training and have a minimum result of the March 1979 accident at Three Mile Island (TMI)- another f two licensed operators per shift with TMI-2 simulator training B&W facility - the Commission ordered Rancho Seco to remain shut at B&W by June 1,1979. Thereafter, at least one licensed down' until the satisfactory completion of the following five short-term Perator with TMI-2 simulator training at B&W will be assigned t the control room. All training of licensed personnel will be actions, intended to enhance the reactor's ability to respond safely to feedwater transients:
completed by June 28,1979.
(a) Upgrade the tiractiness and reliability of delivery from the in response to a Commission invitation, several parties requested a Auxiliary Feedwater System by carrying out actions as iden-hearing.2 On June 21,1979, the Commission directed a licensing board to tific,d in Enclosure I of the licen<ce's letter of April 27,1979.
be constituted to determine whether these parties had standing to par-ticipate in this matter and to convene a hearing if necessary. The Commis-(b) Develop and implement operating procedures for initiating and controlling auxiliary feedwater independent of Integrated Tao joint requests were made, one by Gary Hursh and Richard D. Castro (directors of 2
Control System control.
SMUD), and the other by Friends of the Earth. Ensironmental Councd of Sacramento. and Original SMUD Rate Payers Associauon (collectisely FOE).
' Anhcipating the order. licensee Sacramento Municipal Utility District (SMUD) had already shut down Rancho Seco on Aprd 28,1979.
~
sion further instructed the board to consider at any such hearing: (1) competency [,] are sufficient to provide continued reasonable assurance that whether the five short-term actions "are necessary and sufficient to provide the facility will respond safely to feedwater transients." LBP-81-12,13 reasonable assurance that the facility will respond safely to feedwater NRC 650 (I.D 11245-247).*
transients, pending completion of the long-term modificat' ions;" (2)
None of the parties has appealed from the Board's decision. It is our
"[wJhether the licensee should be required to accomplish, as promptly as
, Practice, however, to review sua sponte "any final disposition of a licensing practicable, the long-term modifications;" and (3) "[w]hether these long-Proceeding that either was or had to be founded upon substantive deter-term modifications are sufficient to provide continued reasonable assurance minations of significant safety or environmental issues." Washington Public
. Power System (WPPSS Nuclear Project No. 2), ALAB-571,10 NRC that the facility will respond safely to feedwater transients." CLI-79-7, 9
~ 687,692 (1979). Our standard or review in such instance NRC 680,681. Subsequently at a public meeting, the Commission, while.
not amending its prior order, expressed its intent not to preclude the board is similar to that required in a contested proceeding. We may from also considering whether the management competence and control at
" reject or modify findings of the Licensing Board if, after giving Rancho Seco are adequate. Comm. Tr.12 (July 11,1979).
its decision the probative force it intrinsically commands, we are On July 27, 1979, the Director of the Office of Nuclear Reactor convinced that the record compels a different result."
Regulation (NRR) determined that SMUD had satisfactorily completed the five short-term items, and he authorized the facility to resume opera-Northern States Power Co. (Monticello Plant Unit 1), ALAB-611,12 tion. In the meantime, the Licensing Board below was constituted and NRC 301,304 (1980), and cases cited.
commenced prehearing acitvities. The Board admitted FOE and Messrs.
We have therefore reviewed, sua sponte, the record and Licensing Hursh and Castro as intervenors' and the California. Energy Commission Board's decision, as well as the Commission's orders that led to the (CEC) as an " interested State" under 10 C.F.R. 2.715(c). All of these institution of this special proceeding. While our tentative conclusions are parties advanced contentions, and licensee SMUD moved for summary essentially in accord with those of the Board below, we find it necessary disposition of many. In a series of orders, the Licensing Board admitted and advisable to address a number of issues before bringing this chapter of numerous contentions, granted summary disposition of some, and posed Rancho Seco to a close.' In some instances, we attempt to resolve apparent three of its own " Additional Board Questions" for pursuit at hearing. Not inconsistencies in the evidence or the decision itself. In others, we sup-long before the evidentiary hearing was to begin, intervenors Hursh and plement the Licensing Board's discussion with further references to the Castro and FOE withdrew from the proceeding. The Board, however, record. Finally, we order SMUD and the staff to submit additional essentially adopted as its own the previously admitted contentions of these information that has developed since the close of the record and to under-erstwhile parties. The hearing thus proceeded as technically " uncontested,"
but with CEC participating more actively than an interested state does ordinarily.
In a decision served on May 18, 1981, the Licensing Board set forth its 1
findings on the 29 contentions and issues it explored during the hearing.
The Board concluded that the five short-term actions ordered by the Commission "are necessary and sufficient to provide reasonable assurance that the facility will respond safely to feedwater transients, pending com-pletion of the long-term modifications." It also concluded that the licensee should perform the long-term modifications "as promptly as practicable "
and that these actions," coupled with the additional changes completed and
- r r case of reference, we shall cite to the initial decision's numbered paragraphs. as well as to the NRC Reports.
being undertaken at the facih.ty, including management and operator
$ Inasmuch as this is a sua sponte review and we are without the benefit of briefs from the parties. we address only the most significant points requiring our attention. Thoac portions of the Licensing Board's decision not dncussed here. in our view. do not require corrective action. On the other hand. the inherent limitations on our review necessarily preclude construing our silence on these matters as blanket approval of the Board's arcatment of them.
- Sec note 2 supra.
take certain analyses that we believe are necessary for hur ultimate disposition of this proceeding.'
A.
Auxiliary Feedwater S)stemi Reliability An important concern of the Commission, as reflected in its May 1979 H'
order, was the reliability of Rancho Seco's auxiliary feedwater (AFW)
' system and its independence from the integrated control system (ICS). See it is apparent that the Licensing Board diligently pursued the many 44 Fed. Reg. 27779. Hence, short-termitem (a), for example, required SMUD complex and highly technical issues raised in this proceeding. In particular to upgrade the timeliness and reliability of the AFW system by accom-we appreciate its effort to see that serious questions raised by parties who plishing nine actions described in an April 27,1979, letter from SMUD to later withdrew were addressed at the hearing. Nonetheless, our review has.
- the NRC staff.' In addition to these, a number of other act! ms were been somewhat hampered by the Board's failure to relate the contentions suggested during the course of this prucceding. In many instances, the and issues it addressed more specifically to both the long and short-term Licensing Board noted SMUD,s " commitment" to undertake them or the
. stats request & WW to & q In new d se ugn4 cant weigM modifications and the subjects for consideration at hearing set forth by the.
' assigned to AFW reliability, we beheve,t is useful to explore some of Commission in its orders. See 44 Fed. Reg. 27779 and 9 NRC 680 i
supra.' Because of the special nature of this proceeding, we believe the those suggestions or commitments for additional analyses and modifications Board should have reframed the proffered contentions and structured the t the AFW and related systems.
to subn,tt a Nage mMe ad course of the hearing in a manner more closely tied to the scheme L
m missm n e
suggested by the Commission's initiating orders.
effects analysis" (FMEA) of the ICS. B&W performed this study and Ifaving made these general observations, we now turn to the specific rec mmended a number of areas for further review "for possible changes t enhance reliability and safety." CEC Exhibit 3 " Integrated Control portions of the initial decision that warrant further comment of am-plification.
s Those actions, which the Director of NRR determined had been satisfactorily completed, arc
- The Licensing Board refam.ed from actually " ordering" any actions other than those found in CEC Exhibit 25 (Enclosure I), as follows:
1.
Review procedures, revise as nece sary and conduct training to ensure timely and originally specified by the Commission, even though at commented favorably throughout its decnion on a number of such actions.13 NRC at 649.65o (l.D.,11243, 247). The Board proper starting of motor driven auxiliary feedwater (AFW) pump (s) from vital AC apparently believed that, under the terms of the Commission's June 1979 order, it could only buses upon loss of offsite power.
recommend that the Commission issue a show cause order concerning the need for additional 2.
To assure that AFW will be aligned in a timely manner to inject on all AFW menures. /d at 566 (I D.,1115). We do not read the Commisuon's order so narrowly. The demand events when in the surveillance test mode, procedures will be implemented Commission limited the general scope of the hearing to the facihty's abihty to respond safely and training conducted to provide an operator at the necessary valves in phone to feedwater transients and specified three subjects for the Board's consideration at the communications with the control room during the surveillance mode to carry out the hearing. The order did not, however, descnbe what the Board should do if it were to find a valve alignment changes upon AFW demand events.
3.
Procedures will be developed and implemented and training conducted to provide for need for additional modifications. The Commission merely stated: "[ijn the event that a need for further enforcement action becomes apparent, esther is the course of she hearing or at control of steam generator level by use of safety grade AFW bypass valves in the any other time, appropriate action can be taken at that time." 9 NRC at 681 (emphasis event that ICS steam generator level control fails.
4.
Verification that Technical Specifications requirements of AFW capacity are in added). The Commission did not specify or limit who could take " appropriate action." In these circumstances, we be, eve it proper to (c.rmalize through an order, if necessary, any accordance with the accident analysis will be conducted. Pump capacity with mini n
uhimate findings that SMUD should accomplish certain additional modifications. See Part f)ow in service will also be verified.
5.
Modifications will be made to provide verification in the control room of AFW flow I
l11, infra.
Our scrutiny of the record and init al decision reveals that the Board did, in fact, cover all to each steam generator.
6.
Review aud revise, as necessary, the procedures and training for providing alternate the items directed by the Commission. Although the Board does not so characterize them, most of the matters discussed, however, appear to fall within consideration of whether the sources of water to the suction of the AFW pumps.
7.
Design review and modification, as necessary, will be conducted to provide control Commission-ordered modifications (short and long-term) are " sufficient" to assure a reasonably safe response to feedwater transients.
room annunciation for all auto start conditions of the AFW system.
8.
Procedures will be developed and implemented and training conducted to provide Insofar as it appears to ranc issues beyond the scope of the Commission's order, the Board also attempted (principally in its prehearing conference orders of October 5,1979, and guidance for timely operator verification of any automatic initiation of AFW.
i 9.
February 14, 1950) to link the more attenuated issues to the general subject of this Verification will be made that the air operated level control valves (a) Fail to the proceeding - response"to feedwater transients.
50% open position upon loss of electrical power to the electrical to pressure converter, and (b) Fail to the 100% open position upon loss of service air, The AFW bypass valves are safety grade.
4
~.
~
l System Reliability Analysis" (BAW-1564, August 1979) at 3-1.' Both the (a) Provide a safety grade AFW automatic initiation and control staff and the Oak Ridge National Laboratory (ORNL) - which critically system design that is independent of the ICS.
i appraised the B&W report for the NRC - agreed that these recommen-l B&W Report BAW-1564," passim; Board Exhibit I, ORNL Report Re-(b) Provide for the automatic loading of the motor driven AFW
?
dations warranted some follow-up action. Staff Exhibit 5 " Assessment of Pump onto the diesel generator buses upon loss of all offsite
^
view at 16-17. At the hearing, NRC witness Capra indicated that SMUD Power.
haa already made changes in several of the recommended areas and was (c) Revise the AFW system piping and provide a remotely considermg still others. Tr. 3703-3711. Mr. Capra's testimony also sug-operated valve operated from the control room instead of the gested that the staff would continue to oversee SMUD's response to the local manually operated full flow recirculation valve (FWS B&W recommendations. Tr. 3707.
055)'
The Licensing Board's initial decision discussed at length the B&W recommendations, along with the ORNL and staff evaluations, and noted,
simply that SMUD is considering and acting upon a number of items.13 '
(d) Incorporate into the Technical Specifications a requirement to operationally verify AFW flow capability from the condensate NRC at 570-573 (l.D., 1126-35). The record, however, contains no storage tank to the steam generators following extended cold information concerning SMUD's final response to BAW-1564 and the shutdown.
staff's final evaluation. Because we would find this information useful, we request SMUD and the staff to provide us with a status report on the six (c) Upgrade the existing condensate storage tank level indication B&W recommendations.
and low level alarm to safety grade requirements.
- 2. The Licensing Board concluded that the AFW system " provide [s]
(f) Upgrade the existing control room indication of AFW flow to reasonable assurance that the plant can be safely shut down in the event of each steam generator to safety grade.
a loss of main feedwater." 13 NRC at 604 (I.D.,1119). It noted, however, seven additional long-term modifications to which SMUD is " committed" (g) Establish pmcedu es on how to obtain water for the AFW and which, in the Board's view, will enhance AFW reliability even further system from sources other than the condensate storage tank.
by reducing operator action and thus error. Id.at 604-605 (l.D.,11119-l20).
The Board set forth these actions as follows (id. at 604 (l.D.,1119); see See f I. Tr.1163, Matthews Testimony on Board Question CEC 1-6 at also id. at 569 (I.D.,124)):
17-19; CEC Exhibit 21 (Enclosure 1) at 3-7. The staff, in fact, identified these and still other actions it expected from SMUD" and proposed a schedule for their completion in CEC Exhibit 21 (Enclosure 2). SMUD responded favorably to each of the items listed, indicating that it would take the specified action within the time set by the staff. CEC Exhibit 22.
'Specirecally. these areas were (CEC Exhibit 3 at 3-1):
Again, because these modifications all relate to AFW system reliability -
Non-nuclear instrumentation /ICS power supply reliabihty.
a.
b.
Rehability of input signals from the nuclear instrumentation / reactor protection the very essence of this special proceeding - we believe a status report on system to the ICS - specifically, the reactor coolant flow signal.
SMUD's fulfillment of its commitments is in order. We therefore request c.
ICS/ balance of plant system tuning, particularly feedwater condensate systems and the ICS controls.
d.
Main feedwater pump turbine drive minimum speed control - to prevent loss of main feedwater or indication of main feedwater.
c.
A means to prevent or mitigate the consequences of a stuck-open main feedwater startup valve.
n Other actions, included, for example, revision of AFW system procedures with regard to f.
A means to prevent or mitigate the consequences of a stuck-open turbine bypass AfW pump suction and discharge pressure instrumentation and revision of proposed technical valve.
Specification for AFW t.imiting Condition for Operation.
88 for example. SMUD made changes relating to power supply reliability and ICS procedures. It also was said to be considering changes relating to hard. wiring the reactor coolant Dow signal to the ICS and the purchase of a new main feed pump control system.
[
f SMUD and the staff to advise us as to the progress SMUD has made ori record that SMUD has >ct fulfilled its commitment in response to the
[
each action identified in CEC Exhibit 21 (Enclosure 2).u -
Commission's May 1979 order. We therefore request the staff and SMUD
{
to inform us whether the safety-grade trip has, in fact, been installed, and, j
B.
Anticipatory Reactor Trips if it has not, to explain the delay and provide a projected completion date.
{
The Commission's May 1979 order directed SMUD to "[i]mplement a
~ C.
Small-break LOCA Analyses hard-w, red control-grade reactor trip that would be actuated on loss of i
main feedwater and/or turbine trip." 44 Fed. Reg. 27780. The Licensing The Commission's May 1979 order directed SMUD to "[clompletc
[
Board concluded, and the evidence shows, that control-grade reactor trips analyses for potential small breaks and develop and implement operating
}
-instructions to define operator action." 44 Fed. Reg. 27779. The staff
+
are "acceptabic in the short-term," because they do not perform a direct
! reviewed SMUD's actions with regard to this "short-term" item and, l
safety function but merely serve as an additional backup.13 NRC at $82 although it concluded that the licensee had complied with this aspect of (l.D.,157). See also fol. Tr.1163, Thatcher Testimony on Board Question 9, etc., at 6-7." For the long term, however, the Commission ordered the Commission's order, it identified several additional studies assertedly i
needed for long-term operation: (1) the more detailed small-break loss-SMUD to upgrade this component to " safety-grade" and submit the design of-c tant accident (LOCA) analyses discussed in Sections 8.4.1 and 8.4.2 to the NRC staff for review "as promptly as practicable." 44 Fed. Reg.
of NUREG-0560, " Staff Report of the Generic Assessment of Feedwater 27779-27780. " Safety-grade' describes circuitry that is more reliable than Transients in Pressurized Water Reactors Designed by the Babcock and
" control-grade" and that meets the design requirements of the protective Wile x Company," and (2) analyses to (a) confirm that AFW, if lost, can t
safety system, such as " single failure, testability, qualification, indepen-be restored within a reasonable period of time and (b) describe the dence and automatic removal of operating bypasses." Fol. Tr. 1163, thermal-mechanical behavior of vessel materials under these conditions.
i Thatcher Testimony on Board Question 9, etc., at 6. The Board thus noted F 1. Tr. 362 Staff Evaluation at 19, 23. The Licensing Board also SMUD's commitment to install safety-grade trips "in the next few discussed SMUD's small-break LOCA analyses (performed by B&W).
months." 13 NRC at 582 (I.D.157).
eventu lly finding them " adequate to demonstrate that core cooling will bc The record shows that the NRC staff approved SMUD's prelimirary sufficient" so as to assure Rancho Seco's safe response to such events. See design for the safety-grade anticipatory trip on December 20,1970, and I3 NRC at 586-598 (l.D.,1170-101 ). It is not readily apparent from that the trips would be installed and operational within about six months either the record or the Board's decision, however, whether the specific of that date - i.e., by June 1980. Fol. Tr.1163, Thatcher Testimony on an hsu ident lied by the staff as necessary for long-term operation have Board Question 9, etc., at 6; fol. Tr. II63, Capra Testimony on FOE been performed, and, if so, what the results were. Consequently, we request contention III(c) at 5; fol. Tr. 1988, Dieterich Testimony on Board the staff and SMUD to submit a status report on these further analyses.
Question CEC 1-6, etc., at 26, 27. The Board issued its decision approx-Otherwise, the Licensing Board's decision accurately and fully reflects j
imately one year later, but there is no indication there or otherwise in the the evidence adduced on this important issue, and we tentatively agree with the Berdt scnual conclusions. While this matter was pending our sua sponte review, however, counsel for SMUD directed our attention to another matter related to the small-break LOCA analyses. A March 25, 1981, letter from B&W to SMUD on " Reactor Coolant Pump Suction We note, in this regard, that mo6 items were to have been completed by May 1,1980, or Small Break LOCA" points out that the small-break LOCA analyses 82 January 1.1981.
discussed in this proceeding assumed, as a " worst case," a small break at i
"The Licensing Board explored at the hearing a claim that control-grade anticipatory reactor trips at B&W reactors had failed to respond on one out of four occasions during the first few the reactor coolant pump discharKe line. In normal circumstances, this months after the accident at TMI.2. Testimony showed that this one failure was attributed to type of break would be more severe than a pump suction line break, since, initial break.in probisms at an Art ansas reactor. Tr. 1712-1713. In seven or eight in the latter case, a greater degree of high pressure injection (llPI) l additional anticipatory trip requests over approximately the next six months, however, no penetration is achieved. But where llPI is not automatically initiated and failures occurred. I'ol. Tr.1988, Dieterich Testimony on Board Question CEC l-6, etc., at 16; fol. Tr.1163. Thatcher Testimony on Board Question 9, etc., at 8-9. The Board found, and we agrec, that control-grade trips are therefore sufficiently reliable for short. term
June 1o.1981, iciter from Thomas A. Baxter, Esq., served on all parties. We commend operation.
SNtUD counsel for alerting us and the parties to this matter.
C
AFW flow is delayed, a pump suction break can result in a greater loss of Reaching this limit carries with it the implication that the nozzles will fluid inventory. Thus, the B&W LOCA analyses could be characterized as begin to experience some degradation and diminished effectiveness incomplete, insofar as they did not consider a " pump suction thereafter. Unfortunately, neither the record nor the Board's opinion deals break / delayed AFW" scenario.
satisfactorily with the impact that this matter may have on safety. In the i
The B&W letter suggests further analysis is unnecessary, however, first place, the record should, but does not, establish the maximum al-because the post-TMI-2 small-break LOCA guidelines for operator action ' lowable number of thermal cycles for each flPI nozzle. SMUD's testimony and upgrading of the AFW control system are equally relevant to a pump reflects no tangible basis for the original lifetime limit of 40 HPI cycles suction break, and this scenario is, in any event, highly unlikely. In his plus 40 test cycles for each nozzle. See, e.g., Tr. 2015. Further, licensee cover letter, counsel indicates that SMUD's witnesses have reviewed this witness Dieterich stated that recalculations based on different usage factors 2
information and would not alter their testimony before the Licensing may or may not show that the llPI nozzles can withstand more cycles.
Board. See, e.g.. fol. Tr. 535. Karrasch and Jones Testimony on Board Ibid. Thus, while the permitted number of cycles may well be " overly Questions CEC 1-2, etc., at 50-63; fol. Tr. 2948, Rodriguez Testimony on conservative," as the Board found, there is no real evidence to justify that Board Questions CEC 1-2, etc., t 25-31. Nevertheless, we believe it would characterization or upon which to rely in setting a new limit on thermal be useful to have the staff's (and any other party's) comments on the-cycles. Moreover, although the record does show "several ways to cope B&W letter and the "resoloa paths" proposed in it.
with the matter, it does not reflect any consideration of means to detect thermal cycle effects or to prolong the life of the llPI nozzles.
D.
liigh Pressure Injection The record gives no cause to doubt that the existing design basis total of in paragraph 125, the Licensing lloard properly noted its " concern" that 70 cycles per nozzle (40 plus 30 converted from test cycles) is safe. But in the number of high pressure injection (llPI) initiation cycles permitted view of the facts that (1) this limit is being approached more quickly than (under the design basis of Rancho Seco) on each injection nozzle for the anticipated, and (2) an increase in high pressure injections and thus added life of the plant is being approached. The Board, however, concluded -
stress on the llPI nozzles is likely, we conclude that further analysis by without elaboration - that the limit imposed on these cycles "may be SMUD and the staff is warranted. Accordingly, we shall retain jurisdiction overly conservative, and that there are several ways to cope with the of this case to enable supplementation of the record with analyses of (1) matter should it become evident that a real safety limit is being ap-the maximum allowable number of thermal cycles on the HPl nozzles;(2) proached." 13 NRC at 607 (l.D.,1125). But the record, in our view, does methods of detecting thermal cycle effects on the nozzles; (3) possible not support the Board's somewhat optimistic appraisal of the effect of the means of prolonging the useful life of the nozzles; and (4) technical Commissior.'s May 1979 order on the llPI system.
specifications or operating procedures that might reduce the use of the The number of IIPI cycles projected for the 40-year life of the plant is llPI without endangering the core. SMUD and the staff should submit a i
40, or one a year for each nozzle. Tr. 994-995, 997. Another 40 " test" proposed schedule for supplying this information.
cycles (at low pressure) are projected, which roughly convert to 30 cycles of high pressure injection. Tr. 2014-2015. A staff witness acknowledged E.
Operator Trai..ing and Competence that "one of the high pressure injection nozzles, has been subjected to 31 Short-term items (d) and (c) required SMUD to " implement operating thermal cycles to this date," and a SMUD witness later stated that all instructions to define operator action" for potential small breaks and to three of the llPI nozzles are already in the "ballpark" of 30 thermal assign to the Rancho Seco control room one senior licensed operator who cycles. Tr. 1159, 2018. Because one of the consequences of the Commis-sion's May 1979 order is an increase in the number of reactor trips, and
At least three methods were noted: (1) cutting out the old nozzfe and weldirg in a riew according to the staff, this leads to a "likely" increase in high pressure one - a very cosity' procedure; (2) addins a mini. flow line that b> passes the HPI valve injections," there is a substantial chance that the permitted lifetime num.
and permits cold water to trickle through the nozzle continuously to climinate thermal shock; I
and (3) limiting HPI initiaina. Tr. 2016. 2019. See also Tr. 3358.
ber of IIPI cyctes for each nozzle will soon be reached.
"See fol. Tr. II63. Rubin and Novak Testimony on CEC Contentions 1 1 and 1 12 at 3. But compare the siews of SMUD's witnesses that a resulting increase in high pressure injections i
is not anticipated. l'ol. Tr. 535. Karrasch and Jones Testimony on Board Questions CEC 12, etc. at di: Tr. 997. See also 13 NRC at 606 (l.D.,1124).
at 615 (l.D.,1147). In reaching this conclusion, the Board discounted has had TMI 2 training on the B&W simulator. For theJong term, the CEC's reliance on the three depositions by noting that "[a] considerable Commission's order required at least two licensed operators per shift with portion of each deposition was devoted to matters such as description of TMI-2 training on the simulator, one of whom is to be assigned to the the facility, operator experiences with various transients, equipment control room. 44 Fed. Reg. 27779. Because the Commission directed the availability, descriptions of the SMUD organization, and other matters not Licensing Board to explore whether these measures were 'necessary and germane to the operators' training and knowledge." Ibid. We disagree with sufficient' for the safe response to feedwater transients, the matter of the Board's characterization of these matters as "not germane" and find operator training and competence arose in this proceeding.
them to be of obvious relevance to an inquiry of operator competence.
Although the principal focus of the Commission's order (insofar as The Board also indicated its reluctance to give much weight to the operator training is concerned) was on TMI-2 simulator and other training, depositions because of its inability to observe the witnesses' demeanor. It the Licensing Board devoted a relatively substantial portion of its decision
! opined that the operators were unaccustomed to answering questions under to contentions that challenged the general adequacy of the overall Rancho oath and thus might not give their best answers. The Board further stated Seco training program. See 13 NRC at 609-624 (I.D.,11130-165).
_that this may have been the reason for an operator's incorrect answer indeed, the Board affirmatively disclaimed any mandate to review the regarding " feed and bleed" cooling. Ibid. n.15. But rather than engaging in adequacy of the post-TMI-2 program, in particular. Id. at 613 (I.D., - such speculation, in our view, the Board should have either focused on the 1140). See also id. at 611 (I.D.,1137). We have no quarrel with either the totality of the depositions and the exact way the questions were phrased relevance in t,i case of some discussion of the overall training program at and answered, or - if it still had serious concerns - called the deponents Rancho Seco, c. the Board's favorable conclusions on this issue. We point as witnesses for additional questioning.
out, however, that SMUD, like all licensees, is expected to comply with the We have reviewed the depositions in question (ranging from approx-NRC regulations that govern training and operator competence, obviatina imately 80 to 150 pages) and find that, overall, they ar.d the other any lengthy discussion to the effect that SMUD is doing what it is evidence of record reflect adequate knowledge and training on the part of supposed to do. More importantly, as noted, the emphasis in this special the three operators. The few instances cited by CEC to show a lack of proceeding was to be on the training undertaken in the wake of the events operator understanding involved questioning that was confusing or vague at TM1-2. Thus, we find it somewhat disconcerting that the Board devoted and thus susceptible to responses in kind."
comparatively little of its decision to the special post-TMI-2 training given Rancho Seco's operators.
F.
Instrumentation We are nonetheless convinced by the underlying record that SMUD in response to the Commission's May 1979 order and the accident at personnel adequately understand the TMI-2 sequence of events and the TMI, SMUD made various modifications to the instrumentation in the proper responsive action." Where the NRC staff identified weaknesses in Rancho Seco control room and elsewhere." See 13 NRC at 628-629 the program, SMUD undertook additional training and corrective measures (l.D.,11179-181). The Licensing Board noted, however, two instances in that the staff audited and later found to be acceptable.
which the NRC staff assertedly found that additional instrumentation or One other aspect of the Licensing Board's discussion of operator train-study was needed - extended pressurizer level indication and reactor ing and competence warrants comment. CEC contended, on the basis of its vessel water level indication.14. at 584,631 (I.D.,1163,185).- As to the depositions of three Rancho Seco operators (CEC Exhibits 36,37, and 38),
former, the Board agreed with the staff's alleged recommendation that that a senior operator did not display a complete understanding of plant teps [should) be taken to assure that pressurizer level indication not be s
operations and an operator had an inadequate understanding. The Board, lost." Id. at 584 (I.D.,163). See also id. at $86 (l.D., T69). But as to however, concluded on the basis of the entire record that SMUD's opera-sesse! level indication in particular, and Rancho Seco's instrumentation in tors have sufficient knowledge and understanding of the facility.13 NRC
Sec. r g. CEC Exhibit 38 at 1819. CEC Exhibit 36 at 16.
"The hearing devoted significant attention to the configura ion of the Rancho Seco control 3
"Of particular value are the foHowing portions of prefiled testimony: fol. Tr.1863. Capra r*m 8tScif. Particularly the placement of the main feed *ater and auxiliary feedwater Testimony on FOE Contention Ill(c) at 5-6; fol. Tr. 2948. Rodriques Testimony on Board entruh See 13 NRC at 632-633 (l.D.11tb8192). Our review of the record convmces us Questions CEC 1-2. etc.. at 15-18, 23-24 Appendia 111. fol. Tr. 3496. Bridenbaugh-Mmor that the control room design is a good one, prunded two operators are present, as is now Testimony at 6-13; fol. Tr. 3788. Wilson Testimony on boarc CEC Question I-7. etc., at 4-7 rc4uired ($ce P.801, sanpra-)
II.15.17,19-21: fol. Tr. 362. Staff Evaluation at 24-26.
813 5
812
s general, the Board concluded that the present instrumentation is tesel, not pressurizer level indication. Staff Exhibit 4 at 5-13.2' The staffs
" state-of-the-art" and adequate to cope with feedwater transients. Id. at oral testimony seems to support this interpretation of Exhibit 4, though it 631-632 (I.D.,11186,187). We believe these. matters merit further is not entirely free of confusion. See Tr. 1460-1464.
attention and clarification.
While we agree with the Board that the loss of level indication down-
- l. A contention raised by Hursh and Castro, and later adopted as a scale may not be a threat to safety, we nonetheless request the staff to Board question, concerned whether the capacity of Rancho Seco's pres-clarify its position on this matter, particularly since the Board instructed surizer is adequate to accommodate various feedwater transients. It was irl SMUD and the staff to proceed "directly" with " plans" for extended !: vel 3
j this context that the related issue of maintenance of pressurizer liquid indication.2' Following receipt of the staffs statement, we will determine volume arose. While testimony referred to data showing that, in each whether it is necessary to formalize the Licensing Board's direction in instance of a reactor trip at a B&W PWR, the pressurizer did not actuall) paragraphs 63 and 69.
empty, there was other evidence that level indication had occasionally beer!
- 2. The Licensing Board,in paragraph 185 (13 NRC at 631), found a lost at the lower end of the scale. Id. at 584 (I.D.,1T62,63). In its Exhibit difference of opinion among the witnesses on the desirability of direct 4, NUREG-0667, " Transient Reponse of Babcock & Wilcox-Designed detection of reactor vessel water level. While SMUD concluded that no Reactors," at 5-13, the staff stated that "the loss of pressurizer level, alon8 - available designs for such instrumentation would give unambiguous in-l with the need for operator actions of the kind described, places the plant in dications,22 the staff - according to the Board - expressed a "need" for a an undesirable condition and should be remedied." Relying on this staff reactor vessel water level indicator.2' The Board nonetheless concluded that document, the Licensing Board found that, although loss of pressurizer e isting instrumentation is sufficient, particularly in view of the pending i
level indication may not pose a threat to safety,"the Staff recommendation n temaking on " Interim Requirements Related to Hydrogen Control and l
l should be complied with" so as to facilitate operator action.13 NRC at Certain Degraded Core Considerations," in which the need for a reactor 584 (I.D., T63). Later, the Board directed SMUD and the staff "to vessel water Icvel indicator is under consideration.13 NRC at 631 (l.D.,
proceed directly with plans for extended pressurizer level indication." /d. at 1186). Sec 45 Fed. Reg. 65466,65471,65473 (October 2,1980).
586 (I.D.,169).
Our concern is not with the Board's conclusions, but, again, with its We find both the staffs position on this matter and the Licensing somewhat misleading characterization of the staffs views. The relevant Board's direction to the staff and SMUD to be somewhat unclear. The prefiled staff testimony stated that "[t]he existing instrumentation will be pressurizer at Rancho Seco,.as described in the licensee's testimony, has reviewed as part of the ICC [ inadequate core cooling] studies to determine three separate, temperature-compensated water level indications, calibrated if any additional instrumentation is needed, such as reactor vessel water to cover "the normal operating level range of the pressurizer and level, to supplement existing devices." Fol. Tr.1163. Norian Testimony on provid[ing] sufficient margin above and below that operating range to Board Question 22 at 5 (emphasis added). The same testimony indicated allow the operators additional time to take action and to restore a proper that any such additional instrumentation would serve as a " backup to the level within the pressurizer in the event of an off-normal condition." Fol.
existing systems. Id. at 6. At no point did the staff aver that reactor vessel Tr. 2948, Rodriguez Testimony on Board Questions CEC 1-2, etc., at 40.
level indication was "needed." See also fol. Tr. 3788, Wilson Testimony on There are also alarms to alert the operator to off-normal conditions. Ibid.
The staffs prefiled testimony stated that similar B&W pressurizer level 3,This document also assigns a rctainely so. priority to system Response Modifications io indication was " reliable" during the TMI-2 accident, but described circum-Prevent Preuvrizer Lesci Loss and ECcs Actuation. see staff Exhibit 4 at 7 is. 7-28,' 3s stances in which level indication might be lost. Fol. Tr.1163 Norian 39.
S "'fi'*l 7 'h* 5'*ff 'h "3d *dd"" *h*'her it ia' cad'd ia NU REG-o667 to recommend P
Testimony on Board Question 22 at 3,4. See also Tr. 774. The staff did estended preuuriier level indicauon and. if so, whether that is still its position.
not suggest there, however, that extended pressurizer level indication was SMUD also emphasiicd that the loss of subcoohng. and not reactor scuct level, is the key 22 necessary. Further, staff Exhibit 4 - contrary to the Board's inter-to operator ac' son, and that existing instrumentation enables the operators to monitor this
'""don.
r 1. Tr. 2948. Rodnques Testimony on Board Questions CEC l.2, etc., at 46-48.
pretation - recommends study of ways to mitigate loss of pressurizer See aho fol. Tr.1163. Norian Testimony on Board Question 22 at 5 6.
2'CLC testified generally as to the tesirabihty of such an indsator. but recognized the need for careful rescarch on the best msasurement system. rol. Tr. 3496, Bndenbaugh. Minor Testimony at 15.
f 814 815 i
CEC !ssue 5-3a at 5. Later at the hearing, a staff witness, in response to rulemaking and refrain from any explicit comment or judgment on this Board questioning, opined that this item is "not... required." Tr. 3877.
portion of the Board's decision.25 Finally, in our review of the record, we have discoiered no evidence that the staff subsequently recommended this instrumentation for Rancho Seco m.
after the ICC study and review to which the Norian testimony referred.
This memorandum has identified several areas that require additional G
H9 9 Cel analyses or information from SMUD and the staff before we are able to One of the issues raised by former intervenors Hursh and Castro find that the actions ordered by the Commission in May 1979 are neces-concerned Rancho Seco's ability to cope with the generation of hydrogen _
sary and sufficient to assure Rancho Seco's safe response to feedwater within the containment following an accident like that at TMI-2. Noting,
transients. To summarize, we request the following information by Novem-several reports on TMI-2, the Licensing Board found that it could, not "
ber 20,1981:2.
" accept without question the notion that, following a feedwater transient, no serious accumulation of hydrogen could occur before a recombiner I. Status reports from SMUD and the staff on the six recommen-could be installed." Order of February 14,1980, at 7. It therefore adopted dations in BAW-1564 to enhance AFW safety and reliability; the Hursh-Castro contention as a Board question and received evidence on
- 2. Status reports from SMUD and the staff on SMUD's commit-ments to improve AFW reliability, as described in CEC Exhibit In ts n t decision, the Board found - without much claboration -
21 (Enclosure 2);
that, even though Rancho Seco is not protected by recombiners or purging of hydrogen in amounts like those produced at TMI-2, the facility could
- 3. Status reports from SMUD and the staff on the installation of withstand the generation and combustion of such amounts of hydrogen.
the safety-grade anticipatory reactor trip; The Board also pointed out, however, that since the Commission has initiated a rulemaking to explore ways to mitigate the consequences of
- 4. Status reports from the staff and SMUD on the need for the hydrogen within the containment.2* it could " rely upon the Commission's additional analyses identified in the Staff Evaluation at 19,23 implied judgment tiiat operation of Rancho Seco.. in the iaterim will not (see p. 809, supra);
present an undue hazard to health and safety." 13 NRC at 637 (I.D.,
- 5. Staff comments on the March 25, 1981, letter from B&W to
" rning " Reactor Coolant Pump Suction Small Pretermitting the question of whether hydrogen control is even within B
A"'
the scope of this special proceeding, we would ordinarily expect a more substantial treatment of this matter than that set forth in the initial
- 6. SMUD and staff schedules for HPI analyses; and decision. But, as the Licensing Board observes, the Commission now has under consideration the consequences of the generation of large amounts of
- 7. Staff clarification of its position on the need velson for extend-ed pressurizer level indication.
hydrogen within the containment following a TMI-2 event. In this circum-stance, we rely on our prior holding that " licensing boards should not following the receipt and consideration of this material, we will deter-accept in individual licer.se proceedings conteniions which are (or are mine whether it is necessary to order additional action.
about to become) the subject of general rulemak,ng by the Commission.
i Potomac Electric Power Co. (Douglas Point Station, Units I and 2),
ALAB-218, 8 AEC 79, 85 (1974). We thus leave the matter of hydrogen control at Rancho Seco to the Commission's consideration in the ongoing i
2s We note that the Board itself took this course with regard to the exclusion from this proceeding of contentions concerning emergency response plans. See Order of October 5, 1979. at 2-4.
2eThe parties may each submit this material in one document.
2'Sec 45 Fed. Reg. at 65472. swpra-816 817
It is so ORDERED.
FOR THE APPEAL, BOARD I
i i
tOmic SOfOty
- c. Jean Bishop Secretary to the Appeal Board
, 0 d & @ sing
[
Boards issuances b
p.
y
. n ATOMIC SAFETY AND LICENSING BOARD PANEL
[ :2; I jmi h, %..s' p
- f' B. Paul Colter, *ChJJrmar#
Robert M. Lazo. '5irr Chastmart (l'xectaiw)
( ',;
Frederick J. Shon. *l'is c Chairmart (Techtsical) p.
Members h pn-
,Y ' D P y-J '
Dr. George C. Anderwn John 11. Frye, lite Dr. M. Stanley Uvin pson pC a
naries Bechhoefer*
Michael Glaser Dr. Immeth A. Luebke'
' '.*j'f Peter B. Bloch*
James P. Gleason Dr. Kenneth A. McCoBom
~
llasabeth S. Bowers
- Andrew C. Goudhope Dr. %:llsam F. Martin
{
j lawrence Brenner*
llerbert Grossman*
Gary L Mdholha i '
8 s' t Glenn H. Unght*
Dr. Cades ll. Iland. Jr.
Manhell E. Maller*
'[hE-Dr. A. Dnon Cathhan Jerry llasbout*
Dr. Peter A. Morris
- 5, " - 7 Imus J. Carter Dr. DaviJ L lietrwk Dr. Oscar 11. Pans
- k 6 &-
Dr. F. leonard Cheatum I rnest F. lida Dr. Ilugh C. Passon ilugh K.Gark Dr. Robert L. Ilotton Dr. Paul W. Purdom Dr. Rxhard l'. Osde*
Dr. I rank F. Blooper Dr. Iorrsat J. Remick Dr. I redernk R. Cowan t brabeth B. Johnson Dr. Davmf R. Schink
[
Valentane B. Deale Dr. h alter 11. Jordan F rederm k J. Shone
[
Ralph S. Ihker James I., Kelley
- Evan %. Smith
- Dr. Donald P. de SyIva Jerry 2. Klane*
Dr. Martin J. StesnJter Dr. MAhact A. Duggan Dr. James C. L nb lll Dr. Quentan J. Stober Dr. (.cosse A. I erguson Dr. J. Venn Leeds. Jr.
Sey mour h enner Dr. If arry l'oreman Gustave A. Unenberger*
John F. half I
+
Rahard F. Iinter Dr. U=ida W. betic Sheldon J. Wolfe*
+
4 i
i SIS
- l's rottastcral R>atici II*t'tr00Da'We
)
Cate as 14 NRC 819 (1981)
LBP-8149 UNITED STATES OF AMERICA
~
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Charman Jerry R. Kline Hugh C. Paxton in the Matter of Docket Noe. 50 266-OLA 50-301-OLA WISCONSIN ELECTRIC POWER COMPANY (Point Beach Nuclear Plant, Units 1 and 2)
October 1,1981 in order to help expedite the proceeding, the Board asked a series of questions based on a technical report submitted in support of the ap-plication for a license amendment. The Board also adopted special pro-cedures to attempt to resolve the case fairly prior to the time Applicant seeks to conduct a demonstration program.
RULES OF PRACTICE: BOARD QUESTIONS Ur. der extraordinary circumstances created by the r.ced to decide rapidly whether to authorize Applicant to conduct a tubesleeving demonstration program, it is appropriate for the Board to address questions to Appliant even before formal action has been completed concerning the admission of an Intervenor into a license amendment proceeding.
RULES OF PRACTICE: DISCRETION OF PRESIDING OFFICER The Board can authorize a variety of special filings in order to expedite a proceeding sufficiently to permit a decision to be made prior to the date on which Applicant requests approval to conduct a demonstration program 6
pursuant to its license amendment request.
819
RULES OF PRAGICE FAIRNESS IN AN EXPEDITED We recognize that this Board action, taken even before we have decided whether or not to grant the intervention petition filed by Wisconsin's PROCEEDING Environmental Decade (Decade), is extraordinary action. However, this is Specal sensitivity must be shown to Intervenor's procedural rights when no ordinary case, as the ensuing chronology documents.
the cause for haste in a proceeding was a voluntary decision by Applicant j
I concerning both the timing and content of its request for a license I.
BACKGROUND OF THE CASE amendment.
On July 2,1981, Wisconsin Electric Power Company (WE) asked the Office of Nuclear Reactor Regulation to amend the licenses for Units I RULES OF PRAGICL SUA SPONTE ISSUES and 2 (Point Beach). WE's license requires it to plug tubes in its steam generator when the walls of the tubes have been degraded by more than 40 i
Board quesuons designed to clicit information rapidly in order to percent of their origirial thicknes. The amendment seeks permission to expedite a license amendment proceeding, need not be considered sua insert new tulo or " sleeves" inside of the defective tubes and to operate sponte issues requiring notification of the Commission.
the reactor witt. sleeved rather than plugged tubes. The sleeving would occur in two parts: a demonstration involving up to 12 tubes to be sleeved in the fall of 1981 and a program involving about 1,000 tubes to be sleeved RULES OF PRAGICL DISCOVERY in March 1982.
When haste is required, Petitioners can be granted the right to utilize A. Claims Concerning Urgency discovery even before they are admitted as parties.
WE urges substantial urgency for the treatment of its application. In particular, it requests approval of the ame.,dment in time to conduct the RULES OF PRAGICE ORDER TO SHOW CAUSE sleeving demonstration program "during the Point Beach Unit I fall refueling outage. The % E assertion of urgency was reiterated in a Applicant can proceed with a propsed demonstration program requiring September 18 filing requesting issuance of a hearing schedule to assure a license amendment unless Petitioner /intervenor can show cause why it completion of the proceeding by March 16, 1982. Even greater urgency is would be appropriate not to authorize the demonstration program.
sought because of WE's most recent request, for interim operation of Point Beach Umt I with sleeved tubes, following a refueling outage scheduled n MEMORANDUM AND ORDER begin on October 9,1981.
Requesting Additionalinformation Decade requested a hearing in a filing of July 20,1981, antedating the NRC's publication of federal register notice which announced the oppor-On September 28,1981, Applicant filed a Motion for Authorization of tunity for a hearing. 46 Federal Register 40359 (August 7,1981). Decade Interim Operation of Unit I with Steam Generator Tubes Sleeved Rather vehemently contests the need for expediting this hearing, stating:
than Plugged. Neither petitioner nor Staff have yet had the five days we allotted to them for a response. However, we find that this fihng contains insufficient information and we have therefore framed a series of requests for additional information which will help us to decide the question on merits. Since we do not believe that any party,s rights will be preju by ordering a response to these requests for mformation, we are issuin these requests subject to comment by all parties. Unless we are persua otherwise,. failure to respond to these questions could result in an a verse determination concerning facts or legal conclus,ons.
i bar meaningful public participation.
~
821 820
It should be noted, as well, that the licensee makes no claim that contentions. At the time, we anticipated that the matter of basis could be there is any compe!!ing need to comp!cte the s!ceving program for rapidly decided in petitioner's favor. Now, however.WE insists on respond-Point Beach Unit 2 in March 1982, other.than the fact that this ing, so that presumption is no longer called for. Hence, discovery shall not apparently is the time which has been scheduled for the overhaul. be had against Decade. But it would continue to expedite the proceeding A matter of apparent convenience to the Licensee is not a suf. by permitting to allow Decade to propound discosery requests to WE.
ficient ground to override a matter of meaningful, participation for Although this will involve some risk of wasted expense should Decade not members of the public; this is especially true in a case involving a.
be admitted as a party, we are hopeful that it will nevertheless proceed to controversial project of the size and nature proposed by the Licen-use this authorization.
j see.
The Commission's procedural rules are designed for fair and efficient Intersenor's Response to Licensee's Proposed Hearing Schedule at 2-3.
proceedings. Ordinarily, those rules should be used as helpful tools. When we deviate, as we do m this case, we do so because those usual procedural i
B. The Board % Approach.
tools will not provide us witis the timely decision that is required. Ilowever, On September 16, 1981, the Board held an on-the-record telephone in our innovations, we are cautious because we do not wish to compromise conference for the purpose of clarifying the status of the case and working.
s rights to a fair proceeding. Consequently, we will be receptise out procedures for the fair and expeditious handling of the proceeding.
to any serious claim of prejudice from our unorthodox methods. Simul-3 During the conference a number of steps were taken in order to attempt taneously, we will be grateful to parties who join us in a cooperative spirit to expedite the proceeding. One step was to authorize WE to file an that seeks to determine this case on its merits and avoid unnecessary
" interim motion with supporting information, affidavits if necessary, t adversary squabbles.
show that there is no problem with this sleeving program." Tr. 8. The in this case, we expect to be particularly sensitive to petitioner's pro-supporting information was intended to include " full documents on the cedural rights because we agree with Decade that the need for expedition amendment, including [a]. Westinghouse study being prepared for has been created by WE, which delayed filing its amendment only because Applicant. Tr. 6,17-of its incorrect assumption that a hearing would not be necessary. (Tr.16.)
We conducted oral argument, subject to subsequent briefing, concerm.ng in fact, WE's plans concerning sleeving were formulated well before its the relevance to the proceeding of three of Decade's contentions. Tr. 29-37. filing and have already been the subject of a decision of Wisconsin's Public During the Conference the parties agreed that the issue of whether or not Service Commission. Investigation.. into the Ratemaking Effects of the Staff must prepare an Environmental impact Analysis would be helf Sicam Generator Degradation etc., Public Service Commission of Wiscon-open until the Staff decides whether or not to prepare one. Tr. 46-47. %e sin,6630-UI-2,6630-CE-20,6630-ER-10 (August II,1981).
ordered the parties to facilitate discovery by discussing "everythmg that a available and relevant." Tr. 49-50. We set deadlines for the filing of a 11.
Tile BOARD'S QUESTIONS request for scheduling the hearing and for responses to that request. Tr.
i l
21-26.
In this overall setting, the Board must decide how to attempt to reach a i
Both WE and Staff have conceded that Decade has standing to inter-fair determination concerning an interim order before October 9 and vene. Tr. 41,55. The Board agrees. Ilowever, WE and Staff object to the concerning the full Amendment Application by early March, without lack of basis for Decade's contentions. The Board invited a fast-trad compromising any party's rights. With that in mind, we carefully read i
particularization of the contentions, based on Decade's representations that WE's request for interim relief and the accompanying Point Beach Steam further basis was available. Tr. 62. We even established a procedure by Generator Sleeving Report for Wisconsin Electric Power Company, which WE and Staff might waive their rights to respond to the basis that WCAP-9960 (proprietary)(Westinghouse Report).
was to be offered. Tr. 71. However, on September 28, 1981, we were The Westinghouse Report and WE request left us with a series of informed that WE would not waive that right; so we are awaiting its unanswered questions. Ordinarily, answers would be obtained by waiting f r Staff analysis, Decade's response and WE's clarifications. Ilowever, response.
Meanwhile, with Applicant's support (Tr. 57) and opposition from both there is no time for such a delay. To wait would be to moot the WE Staff (Tr. 72) and Decade (Tr. 61, 64.), we also ordered that discover) request. Ilence, we have decided to propound our questions immediately.
could com'mence even before a decision was reached on the admissibility d We believe that this procedure will be helpful to Decade but that this 822 823
assistance is permissible because it results from our concern for necessar)
(9) What is the basis for believing it to be saf: 12 conduct a expedition rather than from an attempt to assist an intervenor. Staffs demonstration program before testing is completed?
i rights also should not be prejudiced, since Staff will.have the opportunit)
(556.i.3.1,6.1.3.2: Tables 6.1-11, 6.1 -3.)
to ask questions of its own and to help to provide answers to the Boardi questions. (We do not consider these questions to be sua sponte issues (10) flow, if at all, do the tests now being performed on the requiring Commission notification.)
sleeves and joints differ from tests performed for initiallicens-We urge WE to respond fully to our questions. Any full response wig ing? Please explain any differences.
suffice, including a cross-reference to a portion of the Westinghouse Repor' which may have escaped our notice. Our questions are these:
(11) One of five samples appears to have experience axial trans-lation at 1610 lbs. and the range of test results was almost (1) Describe fully the demonstration you are proposing to conduc equal to the average. Are these test results consistent with and its importance to the overall sleeving project. More safety? (Table 6-16.) Please compare these results to Task j
specifically, what techniques are to be tested, what empirical M4 in Appendix A.
information will be collected and how will the data be evaluated?
(12) lias there been any corrosive weakening of the joints between the tubes and tubesheet?
(2) What basis is there for believing that the demonstration is (13) Has there been any shearing or rupturing of tubes in Units I sufficiently safe to proceed without full discovery and a hear' ing? In particular, what problems might arise if from 6 to 12 and 2 or in similar steam generators located elsewhere?
tubes ir.volved in sIceving were to shear?
(14) Please explain the basis for using the adjective (3) What is the basis for the statement in $4.1.2 (section refer.
" unrealistically" on p. 6.61 and for believing that the sub-stituted calculation is realistic.
ences are to the Westinghouse Report) concerning the tube-t 4
to-tubesheet weld? (Some of these questions may be difficuh (15) Are we correct in nssuming that Westinghouse is planning to understand without reference to arguably confidential in-maintenance procedures to reduce the number of formation contained in the Westinghouse Report.)
personnel / hours of exposure and not merely to " provide for the minimum number of personnel." ($8.0.)
(4) With how much force.is the sleeve driven into the tube?
What happens if there is a obstruction in the tube? ($4.2.1.)
(16) flow much corrosion can be expected in normal operation in (5) is.it possible for :he internal dimension of the sleeve to be toc crevices which may occur between a corroded outside tube and the sleeve?
large? If so, what is done to remedy the situation. ($4.3.)
(17) For how long a time are the sleeves expected to function?
(6) Will all the joints be measured during the demonstration?
($$4.6.1, 4.6.2.) What criteria will be applied to decide (18) On what date did WE inform the State of Wisconsin Public whether the sampic size should be increased in light of Service Commission of its interest in sleeving tubes in its preliminary results? ($$4.6.1,4.6.2.)
(7) What is the basis for the conclusion of "no significant effect*
(19) What is the legal basis for us to issue an Order for Interim on page 4.17?
Operation before completion of the full hearing process?
(8) flas provision been made to adjust processing of tubes if the}
are crooked? ($5.1.) llow, if at all, will crookedness affect tube preparation or insertion?
1 1
824 825 I
i
Ill. FURTHER PRDCEEDINGS (3) Wisconsin's Environmental Decade is authorized to make im-mediate use of the discovery process with respect to its con-f Although our questions may advance discovery a'nd expedite the pro tentions 3 through 7.
ceeding, there still remains the task of fashioning a method to satisfy th (4) This is an interlocutory order and is not subject to appeal.
legitima procedural needs of the parties.
l First, we plan to act expeditiously on the admission,of contentions upa FOR THE ATOMIC SAFETY AND receipt of WE's response.
LICENSING BOARD Second, we encourage Decade to make immediate use or, the discover) process, even before it is admitted as a party.
Third, we solicit comments from the parties concerning the followini Feter B. Bloch, Chairman procedural plan, which we expect to implement providing the Decade:8 ADMINISTRATIVE JUDGE admitted as a par.y. Pursuant to this plan, Decade and the Staff wouk October 1,1981 have 14 days from receipt of i Ts answers to Board questions to sho' Bethesda, Maryland cause why an Order authorizing immediate operation with up to 12 tube-j sleeved should not be issued. Cause might consist of legal argument or ofi i
substantive matter which should be pursued before the Board can reach:
reasonable conclusion concerning the safety and environmental accept ability of the amendment. Cause could include comment on whether th demonstration proposed by WE is important to its ovenil sleeving prog ram. It would be understood that a showing of good cause would requin that something important be shown but that, given the fact that WE couk have alleviated the urgency in this matter by filing earlier, the Board wa listen receptively to attempts to show cause.
I Fourth, we urge the Staff to disclose to the Board at as early a time a possible whether staff expects to be prepared to act in a timely fashion a the interim order request. Since it is the Director of Nuclear Regulatia who issues an Amendment, and not the Board, the inability of the Staff a l
achieve timely action could moot WE's request.
ORDER For all the foregoing reasons and based on con.;ideration of the entin record in this matter,it is this first day of October 1981 j
l ORDERED (1) Wisconsin Electric Power Company shall respond to the quct
~
tions propounded in the accompanying memorandum.
(2) The parties and petitioner have 5 days to comment on tir issuance of the show cause order discussed ia the accorn panying memorandum.
5 t
l 827 826 l
I
C4te as 14 NRC 828 (1981)
LBP-81-40 PREHEARING CONFERENCE MEMORANDUM AND ORDER UNITED STATES OF AMERICA' ION (Ruling on Petitions to Intervene and Requests for Hearing)
NUCLEAR REGULATORY COMM:SS f
ATOMIC SAFETY AND LICENSING BOARD On July 31, 1980, the Tennessee Valley Authority (TVA) submitted a request for an amendment to its operating licenses for the Browns Ferry Before Administrative Judges:.
Nuclear Plant. This amendment would have permitted TVA to store John H Frye,111, Chairman low. level radioactive waste (LLRW) generated at Browns Ferry on the Elizabeth B. Johnson Browns Ferry site for the life of the plant. (Request of July 31,1980, to Quentin J. Stober Harold R. Denton, Director. NRR, from L M. Mills, Manager Nuclear Regulation and Safety TVA.) This request was prompted by restrictions in the Matter of Docket Noc,50-259 OL imposed on the amount of LLRW that will be accepted for burial at 50-260-OL Chem-Nuclear Systems, Inc/s commercial disposal site at Barnwell, S.C.
50-296;OL (Request, Enclosure 2, pp.1-2.) Following a conference with the NRC Staff. TVA amended its request to seek authorization to store LLRW for TENNESSEE VALLEY AUTHORITY a period of five years (Letter of November 17, 1980).
(Browns Ferry Huclear Plant, On December 4,1980, the NRC issued a Notice of Consideration of Units 1,2 and 3)
October 2,1981 Amendments to Facility Operating Licenses with respect to TVA's request (45 F.R. 81697, December 11, 1980). This Notice provided that any Licensing Board denies petitions to intervene in regard to Applicanti person whose interest might be affected could petition to intervene in the request for temporary onsite storage of low-level radioactive waste because proceeding and request a hearing by January 12,1981. In response to this the petitions fail to raise an acceptable contention.
Notice five timely petitions were received from David R. and Uvonna J.
Curott, Nancy Muse, Richard L. Freeman, Noel M. Beck, and Robert W.
Beck of Florence, Alabama; Alice N. Colcock, and Betty L. and John R.
NEPA: SCOPE OF REVIEW Martin of Sheffield, Alabama; and Thomas W. Paul, Richard W. Jobe, Marjorie L. Hall, Gregory R. Brough, Michael D. Pierson, David Ely, and The environmental assessment of a proposed Federal action may be Debbie Havas of Huntsville, Alabama. Hollis Fenn of Florence, Alabama, confirmed to that action together with its unavoidable consequences.
and Rebecca Hudgens and Tom Thornton of Huntsville, Alabama filed a timely petition which was not received by NRC. (See this Board's " Order RULES OF PRACTICE: CONTENTIONS, ADMISSIBILITY OF Setting Special Prehearing Conference" of March 10,1981, at p. 2.) A copy of that petition was furnished on February 2,1981. The petitions are identical.
Contentions which raise matters outside the zope of an application for a license amendment are inadmissible.
All of the Petitioners live approximately 30 to 35 miles frem the plant.
They allege that they will be adversely affected by this proceeding in that p
they are: (I) customers of electric utilities which purchase electricity from i
TVA; (2) dependent on sources of water, food stuffs and air in proximity to the plant; and (3) owners of property which is subject to damage as a result of this proceeding. More specifically, Petitioners state that the granting of TVA's request may affect their interests by ".. increasing the on site r t.Jioactive inventory and increasing the risk of radioactive con-tamination to [ petitioners and their] descendants, increasing the risk of fire, air contamination, water pollution and other dangers to [ petitioners and their] descendants." (Petitions, p. 3.)
828 829
Standing TVA opposes the petitions on the ground that Petitioners have not TVA's position with respect to Petitioners'standin6 to k.tervene in this demonstrated that they have standing. Among its objections, TVA notes Proceeding presents an interesting argument which 'may not have been I
that while Petitioners' residences are geographically close enough to the Previously considered. TVA asserts that because the activity which it seeks plant to support standing in a reactor licensing case, these residences are to undertake (storage of low. level waste) involves a lesser degree of threat too distant to afford standing in this case because the request for the to the public health and safety than that ordinarily involved in a reactor e
amendment contemplates !cvels of radiation at the site sc !ow as to cause licensing case, the traditional rules governing standing should not be no concern for public health and safety. (TVA's Reply of January 27, applied. TVA in essence asserts that Petitioners' residences are too distant 1981.)
from Browns Ferry to support a claim of injury in fact which is required The Staff, on the other hand, conceded Petitioners
- standing but urged to support standing. In the absence of another basis for stat. ding. TVA that they be permitted to amend their petitions to satisfy the requirement argues that the petitions should be dismissed. Staff did not address itself to of 10 CFR $2.714 that they state the aspects of the proceeding with which the merits of this argument. Although we find the argument interesting, they are concerned. (NRC Staff's Responses of January 28 and F' bruary we also find it unnecessary to address it, and confine ourselves to a e
1 23, 1981.).
consideration of the Petitioners
- contentions. Consequently, for purposes of i
On March 10, 1981, this Board
- ordered that a prehearing confererice this Memorandum and Order, we have assumed without deciding the be held. Petitioners were directed to file supplements to their petitions question, that Petitioners have standing based upon their residence in setting forth their contentions 15 days prior to the conference.
proximity to Browns Ferry.
j On March 26, Leroy J. Ellis, til and Robert B. Pyle entered their appearance on behalf of Petitioners and filed an amendment and sup-Contentione picment to the petitions setting forth aspects of the proceeding on which Petitioners wish to intervene as well as four contentions. Additionally, some As background to a detailed review of Petitioners' contentions, it is l
Petitioners wrote to set forth their concerns in response to the Board's helpful to focus on Petitioners
- principal concern. Petitioners do not ques-l March 10 Order.
tion TVA's five-year LLRW storage plans. (Tr. 8182.) Rather, Petitioners On April 3 TVA responded to Petitioners' March 26 filing reiterating are concerned about what appears to them to be an overall plan to deal i
i its objection to standing and opposing the admission of any of the four.
with LLRW at the Browns Ferry site. (Tr. 12-13, 74.) The source of this I
stated contentions. On April 7, the Staff responded opposing contentions concern appears to stem from TVA's Environmental Assessment of j
two through four and agreeing to the admission of contention one as a February 28,1980. The second paragraph of that document states:
legal issue only.
l A prehearing conference was held on April 10 at which TVA, Staff and It is the purpose of the Environmental Assessment (EA) to
[
i Petitioners were represented by counsel. Both standing and the four con.
c nsider the potential environmental impacts of the proposed low.
4 C
i b f
tentions advanced by Petitioners were considered. Subsequently, on April level radioactive waste (LLRW) management plans for Browns 27 Petitioners filed five additional contentions. On May 15, Staff respond, Ferry Nuclear Plant (BFNP). T\\ A's proposed LLRW manage-l I
l ed with an opposition on the ground that Petitioners had not attempted to ment plan is threefold. It consists of (1) implementing the es-i i
satisfy the requirements of 10 CFR 52.714 relating to untimely conten, tablishment of temporary LLRW storage areas, (2) installing
}
tions. On May 8. TVA filed a response reiterating its former position and equipment designed for volume reduction and solidification of opposing the five new contentions on the grounds that they are both LLRW, and (3) constructing facilities des:gned to safely store the inadmissible and impermissibly late. On May 27, Petitioners filed a plead.
LLRW generated at BFNP for the remaining operational life of ing addressing the 10 CFR 62.714 factors pertaining to untimely filings.
the plant. Although each segment of the LLRW management plan On June 4, following a request from the Board, the Staff filed an c uld be,mplemented independently, each is an integral part of i
opposition to the admission of contentions five through nine. In this filing.
the pmposal for BFNP and all will be considered together as a the Staff also took the position that contention one is now moot, and thus single action for the purpose of this document.
opposed all Petitioners' contentions.
Petitioners focus in particular on the second aspect of the LLRW i
- On September 9.1981, this Board was reconstituted by appointing John H Frye. til management plan, volume reduction and solidification (VRS) and are Chairman vice Herbert Grossman who was unable to serve bewuse of a schedule conflict.
'l 2
830 s3
concerned about TVA's expressed proposal to employ incineration of Decision (LBP-80-28,12 NRC 459 [1980]) which had found that Duke LLRW as a part of this plan. (Environmental Assessment, p. II: Tr.
Power's application to transport spent fuel from Oconee to McGuire for 12-13.) The LLRW mannement plan as detailed in TVA's Environmental storage was part of a so-called Cascade Plan regarding transfers of spent Assessment, together with D A's amendment of its request to NRC for fuel among Duke's nuclear stations. The Initial Decision denied authority LLRW storage authority which reduced the term of the requested author-to make the requested transfers in part because it found that request to ity to five years from the life of the plant leads Petitioners to claim that.
constitute an illegal segmentation of the Cascade Plan, consideration of TVA is seeking to improperly segment its overall LLRW management which was required under NEPA. The Appeal Board, in ALAB-651, found plan for purposes of NRC review.
that NEPA consideration of the Cascade Plan was not required. In so
)
These concerns are offset by other factors. First of all, Counsel for TVA.
doing, the Appeal Board noted that, were Duke a Federal agency commit-i has assured the Board in writing (Response to Petitioners' Second Amend-- ted to the Cascade Plan, NEPA would mandate a consideration of the ment to Petitions to Intervene, pp. 2-4) and at the prehearing conference entire plan. Because Duke, a private entity, had not requested Federal (Tr. 21-22, 43-44, 50-51, 54-55, 71-72) that TVA has not yet decided permission to implement the Cascade Plan, no proposal for Federal action whether to pursue any LLRW management techniques other than the. existed which required consideration of the entire Cascade Plan, provided five year storage for which NRC approval has been requested. Further, that the requested amendment had independent utility and approval of tbc TVA's representations that the five-year storage proposal has immediate amendment would not foreclose later disapproval of subsequent portions of utility regardless what decisions may be made in the future with regard to the overall plan (ALAB.651,14 NRC at 312-14).
other management techniques is beyond question.
We believe that Northern States Power Company (Prairic Island Clearly, storage of LLRW onsite for five years will alleviate the present Nuclear Generating Plant, Units I and 2), et al., ALAB-455, 7 NRC 41 shortage of available disposal facilities and permit TVA to evaluate its (1978), is more on point with this case. Prairic Island pointed out that, in options in light of future developments. Petitioners do not question this accord with Kleppe v. Sierra Club. 427 U.S. 390 (1976), ".. the environ-proposition. Nor does it appear likely that granting this authority would in mental assessment of a particular proposed Federal action coming within i
any way prejudice NRC action on future TVA applications dealing with the statutory reach [of NEPA] may be confined to that action together LLRW management.
with, inter alia, its unavoidable consequences." (7 NRC at 48, emphasis in in this connection, the need for further onsite LLRW management original.) NRC licensing of further LLRW management techniques (such techniques may depend, at least to some extent, on the success of the as VRS) is clearly not an unavoidable consequence of permitting five.3 ear t
Southern States Energy Board in providing for the disposal of LLRW. The LLRW storage. Consequently NRC need only consider the environmental i
staff informs us (Response to Petitioners' Motion Proposing Admission of consequences of the request for five-year storage pending before it.
Five Additional Contentions, p. 4) that this Energy Board was established On appeal of Prairic Island to the court of appeals, it was argued that,
}
pursuant to the Low-Level Radioactive Waste Policy Act of 1980 (Pub. L because the operating license amendment in question (expansion of the l
96-573,94 Stat. 3347, December 23, 1980) and is exploring the formation facility's spent fuel pool) would, if granted, permit stcrage of spent fuel of a " Southern Interstate Low Level Radioactive Waste [ Management]
only until 1982, another amendment permitting yet more spent fuel storage l
Compact." Should the Energy Board's efforts bear fruit, there could be no would have to be sought. This, it was argued, constituted improper seg-i need to consider further LLRW management techniques for Browns Ferry.
mentation of the consideration of environmental impacts under NEPA.
In any event, should TVA in the future decide to implement additional The court rejected this argument, noting that its proponent had failed to onsite management techniques such as VRS, an application will have to be point to any consequences of future expansion which could not adequately filed with NRC and hence the applicable hearing requirements of the be considered at the time such authority was requested. State of Min-Atomic Energy Act would once again come into play.
nesota v. U.S.N.R.C. 602 F.2d 412 at 416 n.5 (D.C. Cir.1979). Similarly, On September 4. Counsel for TVA wrote the Chairman of this Board to in this case, Petitioners have failed to allege why the environmental request action on the pending petitions and to point out a relevant recent impacts of any future LLRW management techniques for which TVA may decision of an Appeal Board: Duke Power Company (Amendment to seek approval cannot be adequately addressed at the time sought. Con-Materials License SMM-1733 - Transportation of Spent Fuel from sequently their contentions based on improper segmentation of the LLRW Oconee Niiclear Station for Storage at McGuire Nuclear Station management plan under NEPA must fail.
(ALAB-651,14 NRC 307 (1981)). That Decision reversed an Initial 832 1
833
Contention one raises Petitioners' argument that.. TVA, by seeking Contentions five through nine were filed after the deadline set by this only authority for five years' storage of [LLRW) onsite is seeking in-Board for the filing of contentions. TVA and Staff both take the position l
cremental decisionmaking on its onsite LLRW storage and management that they should be denied for failure to satisfy the provisions of l2.714 plans, in violation of Federal law." (Amendment and supplement to Peti-with respect to untimely contentions. We do not address this argument tions to Intervene, p. 2.) The contention goes on to state that TVA because, as set out below, we beliese the contentions are otherwsie inad-contemplates operation of VRS by 1985, a part of VRS is incineration and missible.
TVA has already begun plans to incinerate LLRW (apparent!y, in Contention five incorporates the allegations of contention one and relies Petitioners' view, because the number of LLRW storage modules planned on quotations from TVA's environmental assessment as wc!! as on an will not accommodate the amount of LLRW likely to be generated during alleged decision of the TVA Board to authorize installation of VRS. It the life of the facility). The contention concludes that, in essence, in-apparently asserts essentially the same matters as contentions one and cremental decisionmaking in this case will violate NEPA.
three. Clearly, the contention seeks review of TVA's environmental assess-TVA opposes this contention. Staff initially supported its admission as a which concluded that an EIS is unnecessary. In response. TVA legal issue. At that time, Staff proposed a NEPA review confined to points out that its Board has authorized onsite storage facilities for LLRW ment TVA's request for five-year storage. Subsequently, after deciding to expand and preliminary design and investigative studies which, on satisfactory its NEPA review to life-of the-plant storage. Staff took the position that completion, could lead to procurement of VRS. TVA asserts that this contention is outside the scope of this proceeding because NRC need only the contention was moot, We believe that the contention raises the legal issue discussed, supra.
consider the application for five-year LLRW storage presently before it with respect to Petitioners' principal concern. For the reasons given in that and has not jur:sdiction to consider TVA's Environmental Assessment.
discussion, tlie legal issue is decided adversely to Petitioners and the Staff views the contention as challenging TVA's Environmental Assess-ment only and agrees with TVA that this matter is not within NRC's contention denied.
Contention two incorporates the allegatio ts of contention one and as-I serts that TVA's application does not contain adequate data to permit jurisdiction.
To the extent that contention five asserts the same matters as conten-NRC to di., charge its responsibilities under NEPA with respect to TVA's tions one and three, it must be denied for the same reasons. To the extent LLRW management plans. TVA opposes. Staff views this contention as that it seeks review of matters considered in TVA's Environmental Assess-both outside the scope of the proceeding and as too vague to give adequate ment which are not the subject of licensing requests to NRC, it raises i
notice of what is to be litigated. Contention two is denied for the same matters outside NRC's jurisdiction. Cf. Public Service Company of In-diana. Inc. (Marble Ilill Nuclear Generating Station, Units I and 2),
reasons as contention one.
Contention three also incorporates the allegations of contention one and i
ALAB-493,8 NRC 253 (1978).
l asserts that an EIS is required for TVA's LLRW management plans. TVA Contention six asserts that TVA's LLRW management plan constitutes f
opposes. Staff views this contention as outside the scope of the proceeding.
a major Federal action significantly affecting the environment for the f(
it is denied for the same reasons as contention one.
reasons stated in contention five and because of certain enumerated aspects Contention four asserts that TVA has not submitted sufficient data to of VRS. TVA opposes this contention for largely the same reasons it evaluation of its LLRW management plan under the Atomic opposed contention five. Staff views the contention as, among other things, i
permit Energy Act. In particular, the contention points to a lack of information onoutside the scop-of the proceeding. The contention must be denied for the l
the specifications or health effects of the operation of VRS. TVA and same reasons as contention one.
L Staff oppose this contention both as outside the scope of the proceeding Contention seven incorporates the provisions of contention five and i,
and as too vague and nonspecific. The Board agrees. Clearly the only asserts that the application for five-year LLWR storage is defective be-is TVA's matter,pending consideration under the Atomic Energy Act cause the LLRW management plan is subject to the provisions of 10 CFR request for five-year storage of LLRW. To the extent that the contention raises matters beyond that application, it is outside the scope of the Part 30 which have not been followed. Petitioners apparently have re-ference to $30.32(f) which requires the filing of an application to receive proceciling. To the extent it might be viewed as questioning the adequacy and possess byproduct material which significantly affects the environment of the application for five-year storage (and we do not so view it), it is at least nine months prior to construction of the facility where the licensed entirely too vague to be litigated.
activity will be conducted.
834 DfG
TVA does not believe this contention raises a factual issue, and can find impacts of this proposal are inadequately addressed by TVA because the no basis for the legal argument invoking Part 30. Siniilarly Staff does not costs of decommissioning or long-term disposition of LLRW at the end of believe it raises a litigable issue.
five > cars have not been considered.
As best the Board can determine, Petitioners attack the application in '
TVA objects on the grounds that its Environmental Assessment is not question because, in their view TVA's LLRW management plan is a resiewable in this proceeding, that the contention is too vague, and that the major Federal action significantly affecting the environment. If the ap-costs of ultimate waste disposal are not litigable in an operating license plication for five-year LLRW storage may not be considered separately '
proceeding. Staff agrees that the adequacy of TVA's Environmental Assess-from TVA's management plan (the assertion of contention five which is ment is outside the scope of this proceeding and also points out that the incorporated by reference), and if that plan is a major Federal action contention impermissibly challenges 10 CFR $$30.22 and 50.90 which do significantly affecting the environment for NEPA purposes, then $30.32if) not require submission of decommissioning or long term disposition cost would require filing of a byproduct material license application nine data.
months prior to construction of the facility where the licensed activity is to The Board agrees with TVA that to the extent this contention seeks to be carried out. Construction of the LLRW storage modules began sorne litigate the adequacy of the consideration of matters in TVA's Environ-time ago.
mental Assessment which are not the subject of requests for license Because the contention depends on the need to consider the five-year authority pending before NRC, it is outside the Board's jurisdiction. To LLRW storage application in connection with the LLRW management the extent the contention seeks to challenge the sufficiency of the environ-plan in order to succeed, it is denied for the same reasons as contention mental information furnished NRC it also fails. As a general proposition, one.
the Board does not view economic costs as constituting an environmental Contention eight asserts that TVA's November 17,1980 amendment to impact. Thus the Board has difficulty in faulting the application for failing its request seeking authority for LLRW storage for a period of five years to adequately address environmental impact because certain economic costs I
as opposed to the life of the plant should not be recognized for environ-are omitted. Perhaps Petitioners had environmental cmts in mind. In any l
mental purposes because it was filed for the improper purposes of avoiding event, the contention fails to indicate what sorts of costs Petitioners believe environmental consideration of the LLRW management plan and other need to be considered and totally fails to indicate why such consideration is licensing requirements related to the plan. Three factors are said to,
necessary. Consequently it is too vague to be admitted.
illustrate this: (1) TVA's stated reason for amending its application to seek authority to store LLRW for five years rather than for the life of the '
ORDER plant (a lack of NRC policy on onsite LLRW storage); (2) an alleged desire to avoid the provisions of 10 CFR Part 30; and (3) TVA's reevalua-For the foregoing reasons, it is this 2nd day of October,1981, r
tion of its Environmental Assessment.
ORDERED f
l TVA finds this contention to be an admixture of prior contentions; thus That the petitions to intervene and requests for hearing filed herein are I
it suffers from the same defects as the others. Staff believes that to the hereby denied.
i extent the contention asserts a need to consider the environmental con-Pursuant to 10 CFR $2.714a, Petitioners may appeal this ORDER to I
sequences of LLRW storage for the life of the plant, it is moot because the the Atomic Safety and Licensing Appeal Board within ten (10) days of the Staff has undertaken such an assessment. Staff also notes Petitioners' service of this Order by filing a notice of appeal and accompanying brief.
attempt to show an improper purpose for the filing of the November 17 Any other party may file a brief in support of or opposition to the appeal amendment to its request and finds no litigable issue to have been raised.
within ten (10) days after service of the appeal.
In the Board's view, the contention merely seeks another means to expand the five-year LLRW storage application to include the broader LLRW management plan. We have held that NRC consideration of the overall plan is unnecessary. In the absence of some improper or unlawful purpose, motivation is irrelevant. The contention is denied.
Contention nine is the only contention which directly addresses the application for five-year LLRW storage. It asserts that the environmental 836 837
Judges Johnson and Stober concur in this Memorandum and Order but i
were unavailable to sign it.
Cate as 14 NRC 839 (1981)
LBP-8141 1
FOR THE ATOMIC SAFETY AND -
UtJTED STATES OF AMERCA LICENSING BOARD NUCLEAR REGULATORY COMMISSION
,I ATOMIC SAFETY AND LICENSING BOARD l
~
Before Administrative Judges:
John H Frye, III, Chairman ADMINISTRATIVE JUDGE
- i p
Dated at Bethesda, Maryland, the 2nd day of October,1981.
j Michael A. Duggan Robert M. Lazo Ivan W. Smith, Altemate f
In the Matter of Docket No. 50-389 A FLORIDA POWER &
".lGHT COMPANY (St. Lucie Plant, Unit No. 2)
October 2,1981 The Board's Order denying intervention to Parsons & Whittemore, Inc.,
is affirmed after considering objections and making minor changes in the initial Order.
MEMORANDUM AND ORDER Concerning Parsons And Whittemore, Inc.'s Objections j
To The Memorandum And Order Of August 5,1981
,t On consideration of the Objections filed by Parsons & Whittemore, I
i inc., and Resources Recovery (Dade County), Inc. ("RRD") on September 25, 1981, the Board affirms its August 5,1981 Memorandum and Order
)
(14 NRC 333), except as indicated below.
i The Board is persuaded that were RRD to become a party there would be no procedural bar to its challenging the settlement agreement approved in this case. Hence, the paragraph in our memorandum decision stating a contrary conclusion on this point (id. at 339) should be considered deleted.
We also have decided to clarify two portions of our memorandum First, it is our understanding that if RRD obtains title to the disputed small
- j power production facilities as a result of the pending arbitration, then Florida Power & Light Co. (FPL) would have no choice but to honor RRD's PURPA rights. Were this to occur, RRD's entire problem could be cleared up, as we stated in our opinion. Id. at 338-339.
838 C
I l
i i
Second, in our August 5 opinion we deal with whether or not RRD has (2) The first full paragraph of our Memorandum and Decision of shown good cause for late filing. Id. at 344-345. For the purpose of that August 5,1981, (14 NRC 333, 339) shall be considered discussion, we assume that the settlement agreement did not create a cause deleted and the remainder of that Memorandum and Order i
of action but that RRD must rely on an underlying cause of action,if any.
shall be interpreted in light of this Memorandum and Order.
l Consequently, it is important to determine the first date at which RRD 1
I should have known of the availability of that cause of action and whether FOR THE ATOMIC SAFETY AND I
there is good cause for waiting until the present time to raise an antitrust LICENSING BOARD, claim. We concluded that the pivotal date was when RRD first learned it WITH THE CONCURRENCE OF had contractual problems which would require it to sell power to and -
JUDGE MICHAEL A. DUGGAN demand power from FPL; and we found that RRD should have known of l
{
AND its potential cause of action against FPL at the time it reached a contrac.
JUDGE ROBERT M. LAZO j
tual impass with Dade County.
It was RRD's burden to show good cause for late filing. Hence, it had' to show us the date on which it first learned of a need which could lead to Peter B. Bloch, Chairman the current cause of action. RRD did not even allege what that date was, ADMINISTRATIVE JUDGE despite hints dropped to it by the Board in its July 7 Order,14 NRC 87 October 2,1981 e
(1981). It also was unable at the conference to contradict FPL's statement Bethesda, Maryland j
that in February 1980 RRD informed Dade that it would not operate the
{
clectrical generating facility. Indeed, Counsel for RRD admitted that "we j
were saying, that the shortfall was so great that we simply wouldn't be j
able to operate and we would walk away from it." 14 NRC 344 345.
j RRD knew that the details of its contract dispute with FPL were in
{
j sharp issue in this proceeding. We cannot accept its view that it did not
}
have an adequate opportunity to set forth its own version of the timing of that dispute.
We are convinced that the remainder of our Memorandum and Order
}
does not require any further clarification.
l l
ORDER For all the foregoing reasons and based on consideration of the entire record in this matter,it is this 2nd day of October 1981
}
ORDERED (1) The Objections of Parsons & Whittemore, Inc. and Resources Recovery (Dade County), Inc., filed on September 28, 1981, 4
are denied except to the extent indicated below.
i i d
840
- n 84I
MEMORANDUJ AND ORDER Concerning Cite as 14 NRC 842 (1981),
LBP-81-42 For Leave To File A Contenuon About Electromagnetic UNITED STATES OF AMERICA Pulses And Possible Readmission To Discovery j?
NUCLEAR REGULATORY COMMISSION Of The ATWS Contention
- ;ij ATOMIC SAFETY AND LICENSING BOARD I. ELECTROMAGNETIC PULSES CONTENTION Before Administrative Judges:
Peter B. Bloch, Chairman M
filed a motion seeking permission to file Contention 14, relating to the Dr. Jerry R. Kline Mr. Frederick J. Shon disruptive effect of electromagnetic pulses (EMP) on plant operation.
Answers were filed by applicant and staff. Then, at the direction of the Board, OCRE f;ted a reply on August 19.1981.
In the Matter of Docket Nos. 50-440 OL OCRE's centention arose from an article in Science News, May 19, 50 441-OL 1981 at p. 300. That article states that high altitude nuclear explosions w uld gen rate electromagnetic pulses that would induce current or voltage CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.
temporarily disrupting control systems m Perry that are essential for (Perry Nuclear Power Plant, safety.
Units 1 & 2)
October 2,1981 Applicant argues that the admission of this contention is barred by 10 CFR 650.13 (upheld in Siegel v. Aromic Energy Commission. 400 F.2d An electromagnetic pulse (EMP) contention was excluded from the 778,780-782 (D.C. Cir.1968)), which states:
proceeding because 10 CFR 950.13 prohibits consideration of design fea-tures related to attacks on the facility by an enemy of the United States An applicant for a license to construct and operate a production or i
(U.S.). Any explosion causing an EMP that affects the plant would be utilization facility, or for an amendment to such license, is not considered to be an attack on the facility by an enemy of the U.S.
required to provide for design features or other measures for the l
specific purpose of protection against the effects of (a) attacks and
"'I ""
8 **
- 8#'
'8* " * ## I RULES OF PRACTICE: ADMLSSIBILITY OF CONTENTION an enemy of the United States, whether a foreign government or ther person, or (b) use or deployment of weapons incident to U.S.
A brief suspension of an admitted contention concerning anticipated l
transients without scram (ATWS) can no longer be continued when it no
- * "* * #I longer appears likely that the Commission is about to issue a proposed rule Staff joins Applicant in this ground for opposition but also argues that this on the subject.
is a late-filed contention that does not meet the criteria for admission established by 10 CFR $2.714.
RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS If we accepted staff's arguments concerning late filing, we would not reach the merits of admitting this contention. However, we disagree with Contentions regarding the effect of an EMP are barred from staff. Intervenor learned of this issue from a responsible current publica-consideration by 10 CFR 950.13 because such a pulse necessarily ti n. To the extent that the current publication induced substantial fresh constitutes an attack on the facility by an enemy of the U.S.
doubts in intervenors' minds about the safety of Perry, we do not think that technicalities should be used to exclude the issue in this still young proceeding. In addition, we have been impressed by OCRE's technical sophistication in arguing its corbicula contention and with its responsible 843 842
approach to this particular contention, which it has presented logically and procedures and systems for rapid shutdown of the facility included
.l for which it has presented well conceived technical and' legal arguments.
in these features could serse a useful purpose in protection against the effects of enemy attacks and destructive acts, although that is Having decided that the contention may not be dismissed for late filing, we must turn to the proper interpretation of 10 CFR $50.13. OCRE not their specific purpose. One factor under!)ing the Commission's contends that the section does not bar its contention because: (1) an EMP practice in this connection has been a recognition that reactor
}
j could be caused by an accidental nuclear explosion rather than by an design features to protect against the full range of the modern arsenal of weapons are simply not practicable and that the defense er.cmy attack on the plant, and (2) an explosion at 200 miles above ground t
and internal security capabilities of this country constitute, of level caused by an attack on Canada, Mexico or even El Salvador, would not be " directed against the facility by an enemy of the United States" but necessity, the basic " safeguards" as respects possible hostile acts would cause Perry serious disruption. For this second proposition, OCRE by an enemy of the United States.
cites specific portions of the Science News article as a basis.
The merit of OCRE's position depends on the interpretation of the crucial phrase, " directed against the facility." OCRE apparently would Furthermore, assessment of whether at some time during the life l j
have us apply a subjective test in order to interpret this phrase. It implies of a facility, another nation actually would use force against that j that we should inquire into the mind of the attacker and decide whether particular facility, the nature of such force and whether that the act was intentional or merely incidental to some other purpose.
enemy nation would be capable of employing the postulated force We disagree with OCRE's application of a subjective test. We apply an against our defense and internal security capabilities are matters objective test which asks whether the consequences were a reasonably which are speculative in the extreme. Moreover, examination into ;
foreseeable result of the act of detonating a nuclear device.
the above matters, apart from their extremely speculative nature, Nuclear weapons are dangerous instrumentalities. Just as with guns, less would involve information Rgularly sensitive from the standpoint dangerous instrumentalities, users of nuclear weapons are subject to a more of both our national defense and our diplomatic relations.
stringent standard than a subjective test. If a person fires a gun into a crowd and kills someone, he is responsible for the result and is guilty of See also Siegel at 780.
murder or of voluntary manslaughter. Similarly, if a nation fires a nuclear We also reject OCRE's argument that an EMP could be generated by an accident. First, we note that OCRE's example, mvolving a missile silo i
device which causes electromagnetic pulses over the United States, that accident, nows from the deployment of weapons by the Um,ted States.
i nation is responsible for the result. By that hostile act, the nation becomes I
an enemy of the United States and is responsible for direct or indirect Hence, that risk is explicitly barred from consideration by $50.13. In consequences resulting from its use of a nuclear weapon. If that weapon addition, OCRE has failed to provide a basis for believing that there is any damages the control system at Perry, then the nation firing it is responsible plausible mechanism by which there could be an accidental explosion of a 4
y non-defense related nuclear device at sufficient altitude to create a problem for that consequence and we would consider the attack to have been
" directed against the facility", as well as against all other targets it of the sort described in the Science News article.
For all these reasons. *e have decided that the EMP contention is not destroys through blast, pulses or other foreseeable physical consequences of its act.
admissible as an issue in this proceeding.
This interpretation is consistent with the Statement of Consideration issued by the Commission when it promulgated $51.13. 32 F.R.13445
- 11. ATWS Contention (September 26,1967). The Statement of Consideration explained that:
In our Order of September 9,1981, we suspended from discovery the ATWS issue which we had admitted to the proceeding in our July 28 '
, The protection of the United States against hostile enemy acts i
is a responsiblity of the nation's defense establishment and of the Order. The reason for suspending discovery on this issue was Applicant's various agencies having internal security functions. The power argument that the Commission was about to promulgate a proposed rule reactors which the Commission licenses are, of course, equipped on this subject and that the rule would preclude any ATWS issue from our :
with numerous features intended to assure the safety of plant proceeding.
employees and the public. The massive containment and other 4
845 344
Applicant was correct in arguing that the Commission had, acted to (2) Issue r6 in Ordering paragraph (7) of our July 28. 1981 publish a proposed rule for comment. On June 22,1981, Samuel 'J. Chilk, Order is readmitted to discovery.
Secretary to the Commission, issued a memorandum to William J. Dircks, (3) This is an interlocutory order from which there,s no appeal.
i Executive Director for Operations. In that memorandum, the Office of General Counsel and the Executive Director for Operations were authoriz.
FOR THE ATOMIC SAFETY AND ed to publish for comment two ATWS rules.
LICENSING BOARD However, it is now October. Two new Commission members have been appointed, including a new Chairman. No action has ensued concerning pubhcation of the Rule. Hence, we conclude that imminent publication is Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE no longer a reason for suspending the ATWS issue from the proceeding.
October 2,1981 Our discussion of the ATWS issue occurs in our July 28,1981, Special Prehearing Conference Order 14 NRC 175,219 221. In its brief of August Bethesda, Maryland II,1981, Applicant objects that the Sunflower Alliance Inc., et al., cannot contribute meaningfully to the resolution of this issue. However, we are unwilling to bar a contention at this stage of the proceeding by making such a determination. We simply have not had enough experience to render such a serious judgment about competence before Sunflower has had a chance to use discovery and demonstrate its aoility. Furthermore, we note that OCRE also expressed an interest in this contention in its August 8 brief; and OCRE has already demonstrated its competence to our satisfaction.
We note that the readmission to discovery of the ATWS issue is a tribute to the correctness of staff's assertion, in its August 12 brief, that there was no pending rulemaking on ATWS.
ORDER For all the foregoing reasons and based on consideration of the entire record in this matter,it is this 2nd day of October 1981 ORDERED (1) The Motion of the Ohio Citizens for Responsible Government for leave to file its Contention #14 is granted; but the conten-tion shall not be admitted as an issue for reasons stated in the accompanying memorandum.
s a
gg 847
Cate as 14 NRC 842 (1981)
LBP-81-43 to obtain access to the report for the purpose of arguing it UNITED STATES OF AMERICA s
NUCLEAR REGULATORY COMMISSION contentions knowledgeably and preparing its case in chief.
ATOMIC SAFETY AND LICENSING BOARD FOR THE ATOMIC SAFETY AND Before Administrative Judges:
~
Peter B. Bloch, Charman Peter B. Bloch, Chairman Jerry R. Kline
~
ADMINISTRATIVE JUDGE Hugh C. Paxton October 7,1981 Bethesda, Maryland in the Matter of Ncket Nos. 50-266-OLA. -
50 301 OLA WISCONSIN ELECTRIC POWER COMPANY (Point Beach Nuclear Plant, Units d and 2)
October 7,1981 The Board issued a written order establishing the agenda for an on-the-record telephone conference call convened by the Board in order to expedite the proceeding.
MEMORANDUM AND ORDER Setting Agenda for October 9 Conference Call Subject to change by motion of a party at the beginning of the 10 am, October 9,1981s on-the-record telephone conference call, the agenda shall be:
I WE's schedule for responding to Decade's September 24, 1981 filing, containing further particularization of contentions.
(Including a discussion of the procedural implications of WE's not yet having responded.)
11 WE's schedule for responding to the Board's request for infor-mation and its representations concerning the last feasible date for acting on its request for interim relief.
til Staff's schedule for responding to the particularization of conten-tions and for completing its analysis of the Westinghouse report.
IV Scheduling a conference to discuss Decade's contentions concern-ing the appropriateness of according confidential treatment of all or part'of the Westinghouse report, Devising a method for Decade 844
i Cite as 14 NRC 850 (1981)
LBP-81-4A resolve remaining questions. Wisconsin's Environmental Decade (Decade)
'JNITED STATES OF AMERICA shall have at least seven days from receipt of the answers to these NUCLEAR REGULATORY COMMISSION questions to show cause (pursuant to our October i Order) why WE should not be granted permission to conduct its proposed tube-sleeving ATOMIC SAFETY AND LICENSING BOARD demonstration program.
Before Administrative Judges:
- urge E to answer these quesp clep aM W h h6 objective is to ascertam what is known, m a scientifically rigorous manner.
Peter B. Bloch, Chairman and what is not known. We are aware that any engineering program will Jerry R. Kline Hugh C. Paxton have areas of uncertainty. However, in order to evaluate the acceptibility of that uncertainty, we must know where it exists. Fully forthcoming answers will assist the Board in understanding what is and is not known.
In the Matter of Docket Nos. 50-266-OLA The procedure we are following continues to be unusual. However, in 50-301-OLA this case we face unusual time pressures and the likelihood that Staff documents will not be available in time for Board and intersenor review.
WISCONSIN ELECTRIC POWER Under the circumstances, we consider our probing review of the Ap-COMPANY plication to be necessary.
(Point Beach Nuclear Plant.
The following are the Board's additional questions:
Units 1 and 2)
October 13,1981 (1) Was plug removal performed at San Onofre or R.E. Ginna?
(2) Please show in one table (or set of tables) all tests performed on The Board requested further information from the Applicant in order to tubes from which plugs were removed and the results of those clarify the record.
tests. Minimum values and ranges should be indicated. Tables should be clearly labeled so that they disclose differences between RULES OF PRACTICE: SIIOW CAUSE the testing conditions and the Point Beach project.
(3) What empirical tests will be performed prior to sleeving deplugged Intervenor may be required to show cause why a licensing amendment should not be issued to permit Applicant to conduct a demonstration program.
these empirical tests are performed? What laboratory tests or engineering studies narrow these areas of uncertainty? What un-certainty will continue to exist?
RULES OF PRACTICE: BOARD QUESTIONS (4) What radistion exposure is expected for the workers who will manually insert sleeves?
Under exceptional circumstances, Board questions may precede (5) Please file the relevant sections of the San Onofre Repair Report discovery by the parties.
which you rely on in answer to Board questions. Be sure to include all related sections.
MEMORANDUM AND ORDER (6) What is the criterion for " unacceptable expansion" which would Concerning Further Board Questions cause sleeves to be plugged?
(7) What quality control measures, if any, will be used to assure On October 9,1981, Wisconsin Electric Power Company (WE) respond-accurate measurement and data collection during the demon-ed to questions asked ' f it by the Board in its October 1,1981 Order.
o stration program?
Although these answers resolved some of the Board's questions, they left (8) Please explain your answer to our previous Question 7 more fully.
some incompletely resolved. The purpose of these questions is to help to More particularly, why is there a difference in torque indicated?
Does this entry merely mean that Point Beach can withstand more torque or does it mean something else?
850
(9) Please indicate in a single table or set of tables the extent to Cite as 14 NRC 853 (1981)
L8P-81-45 which you rely on San Onofre tests rat'her than on laboratory tests of the Point Beach configuration and the extent to which there are no data whatever available concerning the Point Beach configura-NUC RE ORY O SSON tion. Provide explanations where applicable.
(10) Please explam, the improvements in the Model 44 steam generators ATOMIC SAFETY AND LICENSING BOARD which make the Table 6.1 16 results no longer applicable. Please Before Administrative Judges:
provide actual observation data for Table 6.1 15, which has only
" averages" rather than actual observations from which a variance Peter B. Bloch, Chairman or range could be computed.
Jerry R. Kline (11) What is a safe minimum value for axial translation? Why is it a Hugh C. Paxton safe value? Does your reliance on Task M5 mean that you have not yet donc a test comparable to Task M4? Is that acceptable?
In the Matter of Docket Nos. 50-266-OLA 50 301 OLA FOR THE ATOMIC SAFETY AND LICENSING BOARD WISCONSIN ELECTRIC (WITH THE CONCURRENCE OF POWER COMPANY KLINE, J.; PAXTON, J., NOT (Point Beach Nuclear Plant, PARTICIPATING)
Units 1 and 2)
October 13,1981 The Board admitted a single, broad contention based on four admitted contentions. It decided, based on a review of Applicant's filing, that the Peter B. Bloch, Chairman contentions should be admitted because they provided reasons for doubting ADMINISTRATIVE JUDGE the safety of the proposed steam generator tube sleeving program. It then October 13,1981 admitted the single broad contention because it concluded that a decision i
Bethesda, Maryland was required within a short time which was insufficient to accommodate the usual procedure for deciding whether late-filed contentions should bc l
admitted.
RULES OF PRACTICE: CONTENTION, ADMISSIBILITY OF Whether or not basis for contentions has been established must be decided by considering the contentions in the context of the entire record of the case up to the time that the contentions are filed.
RULES OF PRACTICE: CONTENTION, ADMISSIBILITY OF When an application for a license amendment is itself incomplete, the standard for the admission of contentions is lowered because it is casier for petitioners to have reasons for believing that the application has not demonstrated the safety of the proposed procedures for which an amendment is sought.
852 853
RULES OF PRACTICE: CONTENTION, ADMISSIBILITY OF E*""*
" " *"Y issue admitted for hearing.
s When quick action is required on a license amendment, it is appropriate 1.
Tile BACKGROUND to mterpret petitioner's safety concerns broadly and to admit a single broad contention which will permit wide-ranging discovery within the On July 2,1981, Wisconsin Electric Power Company asked the Office limited time without the necessity to decide repeated motions for late filing
' of Nuclear Reactor Regulation to amend the licenses for Units I and 2 of new contentions.
(Point Beach). WE's license requires it to plug tubes in its steam generator A contention may not be admitted unless it is related to the license when the walls of the tubes have been degraded to less than 40 percent of amendment which is requested. Petitioner may not challenge the safety of their original thickness. The amendment seeks permission to insert new activities already permitted under the license.
I tubes or " sleeves" inside of the defective tubes and to operate the reactor if a contention states more than is required for its admission into the with sleeved rather than plugged tubes. The sleeving would occur in two proceeding, its admission should be considered in light of the minimum parts: a demonstration involving up to 12 tubes to be sleeved in the fall of necessary allegation for admission into the proceeding.
1981 and a program involving about 1,000 tubes to be sleeved in March
~
1982.
RULES OF PRANCE: DISCOVERY WE's filing of July 2 cannot be characterized as an attempt to demon-strate the safety of the sleeving program. It was WE's expectation at :he Parties are required to set forth the purpose for each discovery request, time that it would not need to participate in a hearing but that its to discuss differences concerning contentions informally before filing formal amendment could be approved informally, and this filling reflects those objections and to file discovery progress reports.
expectations. By contrast, on September 28, WE submitted a formal request for authorization for interim operation, containing an affidavit of MEMORANDUM AND ORDER the Manager of its Nuclear Engineering Section. This was quickly followed CONCERNING THE ADMISSION OF A PARTY by a Westinghouse proprietary report, providing extensive documentation AND ITS CONTENTIONS about the structure of the tubes and welds involved in this project and discussing laboratory tests and engineering data marshalled in support of On September 24,1981 Wisconsin's Environmental Decade (Decade) the safety of the process.
submitted a letter providing additional bases for its contentions but object.
We note that Decade's letter preceded the filing of the affidavit and the ing to having to particularize its contentions at such an early stage of the Westinghouse report; and we conclude that it would be unfair to require proceeding. This letter was submitted in response to the Board's invitation.
Decade to respond to information in those latter filings, which it had not (Tr. 62-66.) Applicant responded on October 5,1981 and Staff on October even seen. (This point would seem obvious, but response to the Decade
- 9. llence,the matter is ripe for decision.
filing cited both the subsequently submitted affidavit and report.)
We have concluded that Decade should be admitted as a party. This conclusion accords with Staff's recommendation.
II. TIIE PROCEDURAL SE'ITING We also have concluded that Decade's contentions should be simplified by being combmed into the following single issue: " Wisconsin Electric The admissibility of contentions in proceedings involving the amendment Power Company has not demonstrated that Pomt Beach Nuclear Plant, of operating licenses is governed by 10 CFR 92.714, which requires Units I and 2, will operate as safely with its degraded steam generator petitioner to tubes s!ceved as it would if they were required to be plugged."
file a supplement to his petition to intervene which must include a After discovery is comp!cted, Decade will have the burden of coming forward to demonstrate that there are one or more genuine issues of fact list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with related to this contention. Wisconsin Electric Power Company (WE) will reasonable specificity.
then have the burden of persuasion concerning the existence of a genuine 854
It is solely petitioner's compliance with this section that is in issue, as III. DISCUSSION OF CONTENTIONS Decade 1 as demonstrated that it has met the other standing requirements, as Applicant and Staff concede. Tr. 41,55.
A. Admissibility of Contentions 3,4, 5 and 7 Despite the long history of Commission proceedings, the proper meaninF In reviewing Decade's contentions, we find that it often says more than of " reasonable specificity" in $2.714 is somewhat ambiguous. However, is necessary for it to gain consideration of its contentions as issues in the standards governing the interpretation of that phrase were discussed in proceeding. We think it appropriate to consider whether Decade has met Cleveland Electric illuminating Company, et al. (Perry Nuclear Power
- minimum standards for the admission of issues rather than to play a Plant. Units I & 21. LBP 81-24 (1981),14 NRC 175,181-184,189-192,197.
technical game and exclude issues which have been overstated. For exam-We find those standards helpful.See also Philadelphia Electric Co. (Peach plc, contention 3 states that "the braze or weld between the upper rim of Bottom Atomic Power Station, Units 2 and 3). ALAB-216, 8 AEC 13,
, the sleeve and the inner surface of the original tube will weaken the 20-21 (1974).
integrity of the tube" All Decade had to state is that WE bas not The first principal utilized in Perry is that " reasonable specificity" specified the nature of the braze or weld nor demonstrated that it would should be interpreted in light of the " full procedural context."Id.at 182.In
- . be safe.
that case, the extensive Final Safety Analysis Report and Environmental When Contention 3 is looked at in this light, Decade's reliance on a Analysis worked in Applicant's favor. Ibid. In addition, the Board in that statement of a witness called by WE in a prior proceeding is appropriate, proceeding had required Applicant to file a brief setting forth specific That statement documents that laboratory tests show a 10 percent reduc-objections to contentions; and it was considered to be appropriate to tion in the ultimate strength in the area of the weld. Although Mr. Porter require intervenors to respond to those specific objections. Id. at 183-184.
then stated, without proof, that the reduction is still "within the design By contrast, the filings of WE at the time Decade was invited to factors of safety", it is still appropriate for Decade to come forth and particularize its content ons were quite rudimentary. Instead of 22 thick demand WE's proof for this self serving statement. Finally, the decision of i
volumes, we had six pages, consisting largely of conclusory statements the Public Service Commission of Wisconsin to permit s!ceving is simply without documentation. Some of the undocumented conclusions were that irrelevant to us in performing our responsibilities. (Subsequently, extensive "the sleeves will be designed and analyzed to the latest edition of Section proof on this and other admitted issues has been offered by WE, but that til of the ASME Boiler and Pressure Vessel Code as well as applicable proof is not reievant to the admission of contentions, for reasons we Regulatory Guides", "the corrosion resistance of the sleeve material ex-discussed above.)
cceds that of the original tube material", and " confirmatory testing Similarly, Contention 4 questions whether stagnant water might collect
[ unspecified) will be performed".
between the tube and sleeve, causing unexpected corrosion. Given the in addition, the six pages were vague at key junctures. For example, the history of unexpected corrosion at Point Beach and WE's failure esen to letter stated that sleeves would be inserted into "several" tubes, the joints discuss this possibility, this simple assertion might provide reason enough between sleeves and tubes would be formed by a " brazing, mechanical or to admit the contention. However, Decade did more. It pointed out that combination process" and the program would be "of the same or similar Commission Staff had required San Onofrc's owners to explain why this design" to that at San Onofre. Furthermore, although the proposed change special corrosion would :.ot occur. September 22, 1980 memorandum in technical specifications would have permitted any number of tubes to be oncerning San Onofre Unit No.1. See Attachment I to Staff's Response.
sleeved, the letter failed to disclose that within one year WE was planning This establishes the seriousness of the concern. And it is an incomplete to sleeve about 1000 tubes.
answer that the owners of San Onofre satisfied the Staff because the Under these circumstances, Decade was invited to file additional bases relevant record i..his case does not establish the extent of similarity for its contentions. As WE correctly points out in its brief, Decade does between the vaguelt described WE project and the San Onofre project.
not have the opportunity to wait until all applicable technical documents (This deficiency was addressed by the subsequently filed Westinghouse are filed. It must file its contentions at an early stage of the proceedings.
report.)
However, the consequence of this procedural practice is that Decade may We also find sense in Contention 5, concerning whether the sleeved take the case as it finds it. It need not anticipate subsequently filed tubes might make eddy current testing more difficult, thereby inhibiting documents or plausible responses that WE has not already included in the discovery of incipient structural weaknesses. Decade tells us that Staff record.
showed concern about eddy current testing in San Onofre. Contrary to 856 857
Staff's assertion in its Response, the Staff did question "inspectability" in lloweser, Contention 10 should be interpreted, because of Decade's the San Onofre repair application and we interpreJ thi's to include the explanation, as raising generally the issue of whether the sleesing program question of eddy current testing. WE has not answered those concerns in requires the preparation of an environmental assessment or statement and the relevant record in this proceeding. It was sensible for Decade to raise whether the sleeving program is acceptable under the National Environ-the question.
mental Policy Act This issue was more specifically stated in 14 of the l
Contention 7, which speculates that radioactive conditions may lead to section of Decade's filing called "The Petitioner's Position", but the failure shoddy sleeve installation procedures, also is admissible. There are obvious to call it a contention should not exclude it from the proceeding.
problems in conducting repairs on a steam generator of an operating in fact, Decade has not provided sufficient basis for the admissibility of nuclear reactor. Radiological exposure of workers is one problem. Since the this contention at this time because it has not made any allegations about problem was not even addressed by WE in its filing, Decade's concern is the ultimate environmental balance. Apparently Decade intends to call that eminently understandable.
balance into question, but it feels it first to be necessary to assure that an Consequently, contentions 3, 4, 5 and 7 are admitted as contentions to emironmental impact statement be written.
be tried within the scope of the simplified issue which we stated near the it is WE's position that neither an environmental impact statement nor outset of this order.
an environmental assessment need to be prepared for this amendment. For this proposition it cites 10 CFR 551.5(b)(2). Tr. 42-43. However, we B. Other Contentions construe that section differently. 951.5(b) governs only whether an environ-In Contention 6, Decade states that siceving would " reduce the flow of mental impact statement need be prepared. On the other hand, $51.5(c) primary core cooling water and the cooling capacity of the core under (1) dictates that the environmental impact of a licensing amendment "will be esaluated"; and part (2) of that subsection requires publication of "a various accident scenarios to an extent not bounded in previous safety analyses." We find this Contention inadmissible in this proceeding. First, negative declaration and an en ironmental impact appraisal, prepared pursuant to $51.7."
we note that WE is already permitted to plug degraded sleeves. The safety of plugging is not open to question in this amendment proceeding because it therefore appears that an environmental impact appraisal should be it is already permitted. Since WE is merely asking to sleeve tubes which it prepared in this case. The Staff has agreed to inform us when it may be able to complete this work could already plug, the amendment does not permit it to restrict cooling capacity. In addition, as WE points out, it is not permitted to reduce IV. SCOPE OF DISCOVERY coolant flow below the minimum level provided in its Technical Specifica-tions. Consequently, the sleeving program does not waive or otherwise llaving decided that we should admit four contentions, we consolidated reduce cooling flow requirements and this contention is not admissible as them into a single issue.
an issue because it fails to be relevant to the pending amendment.
On October 9, inter enor received technical documents relating to the Contentions 8 & 9 are not truly contentions, as Decade has conceded.
sleeving program. Prior to that date, it had resisted signing a " protective Tr. 67. Furthermore, contentions I & 2 are allegations of the seriousness agreement" which would provide confidential treatment to the documents.
of the consequences which might occur if sleeving leads to steam generator Consequently, it denied itself access to the documents. Only as a result of failure. Decade will be permitted to demonstrate the consequences of the telephone conference of October 9 did Decade agree to sign the failure which might occur as the result of its admitted contentions; con _
pr tective agreement and begin studying the documents.
sequently, it is not necessary to admit these contentions as separate issues.
Were we to proceed in the ordinary fashion, Decade would examine C. Contention 10 these documents in order to determine whether to file additional tions. Each contention would need special prehearing attention and would At the September 16 telephone conference, Decade explained that be admitted or not, on a case by case basis.
Contention 10, dealing with the cost of the sleeving program, was relevant For a construction permit proceeding or an operating license proceeding, because of its impact on environmental issues. Tr. 40. Decade acquiesced this procedure makes sense. Dozens of contentions might be raised by at that time in the Board's statement that strictly ratemaking issues are intersenors, and a winnowing process could reduce the burden of the excluded from Commission proceedings. Tr. 39-40.
parties from unfocused discovery.
858 859
(5) Pursuant to $2.751c(d), objections to this Order may be filed by a In this proceeding, the issues are more narrowly defined. The sleeving party within five days after service of the order, except that the process is not as broad an ocean as is the entire reactor. There is less room regulatory staff may file objections to the order within ten days for rational fishing. There is less danger of burdensomeness and delay from after service.
an open discovery process than there would be from a staged process (6) Wisconsin Electric Power Company and the regulatory staff may requiring decisions before new issues are admitted to discovery.
appeal the portion of this ocier granting the petition to intervene j
It is for this reason that we have decided to simplify Decade's conten-pursuant to $2.714a(c); otherwise, it is an interlocutory order from tion into the single issue quoted at the outset of this memorandum. This -
which there is no appeal.
will provide Decade latitude for discovery in rational areas concerning safety effects. And it is understood that it may also pursue questions FOR THE ATOMIC SAFETY AND rationally related to the environmental balance concerning this amendment LICENSING BOARD (but not the operation of the entire reactor).
(WITH THE CONCURRENCE OF KLINE, J. AND PAXTON, J.)
V.
DISCOVERY RULES Parties must explain the purpose of each discovery request or set of,
Peter B. Bloch, Chairman requests so that requests may be reasonably interpreted.
ADMINISTRATIVE JUDGE Formal objections to a request will be dismissed by the Board unless October 13,1981 they are accompanied by a statement concerning the party's reasonable Bethesda, Maryland attempts to resolve differences in direct discussions with the requester.
Discovery progress reports will be filed on the last working day preced-ing the 22nd of each month and on the last working day preceding the 7th of each month. These reports will indicate accomplishments in the dis-covery process since the last report, progress expected before the next report, and suggestions for reducing delay. Reports are not expected to be longer than two pages, unless necessary to convey the party's message.
ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 13th day of October 1981 ORDERED (1) The Petition to Intervene filed by Wisconsin's Environmental De-cade is granted.
(2) The following contention is admitted as an issue in this pro-cceding: " Wisconsin Electric Power Company has not demon-strated that Point Beach Nuclear Plant, Units I and 2, will operate as safely with its degraded steam generator tubes sleeved as it would if they were required to be plugged."
(3) Liberal discovery rules, accompanied by requirements that requests be accompanied by statements of purpose and that objections document attempts at informal settlement, shall be instituted as outlined in the accompanying memorandum.
(4) Parties shall file discovery progress reports as discus;ed in this memorandum.
860 841
Cite as 14 NRC 862 (1981)
LBP-81-46 MEMORANDUM AND ORDER UNITED STATES OF AMERICA s Setting Agenca And Rules NUCLEAR REGULATORY COMMISSION For October 29-30 Hearing i
ATOMIC SAFETY AND LICENSING BOARD Subject to change by motion of a party, the agenda for the 9:30 October 29-30, 1981, combined hearing will be:
Before Administrative Judges:
1 A show cause hearing concerning Wisconsin Electric Pe Peter B. Bloch, Chairman Company's (WE) motion to obtain interim relief so that it i Jerry R. Kline operate its power reactor with up to six deteriorated ste Hugh C. Paxton generator tubes sleeved rather than plugged.
II Additional argument, if any, concerning WE's motion for su Docket Nos. 50-266-OLA mary judgment. (However, the Board is inclined to rule that la the Matter of this stage of a proceeding, when discovery has not >ct b<
50-301-OLA completed, that the standards for summary judgment are i standards already articulated with respect to the show ca, WISCONSIN ELECTRIC order.)
POWER COMPANY (Point Beach Nuclear Plant, lli If necessary, to conduct a limited evidentiary hearing for t Units 1 and 2) purpose of helping to resolve the show cause or summ.i October 15,1981 judgment motions.
in a license amendment proceeding in which expedition was required in IV If necessary and helpful, to conduct an evidentiary hearin unresolved issues of material fact.
order to make a timely decision, the Board issued an Order calling a single The parties are required to exchange a witness list and documents tii hearing related to an order to show cause, a motion for summary judgment and the hearing of evidence, will be relied on at the hearing at least 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> prior to the hearin unless they have good cause for being unable to do so with respe particular witnesses or documents. The witness list should include a co RULES OF PRACTICE: DISCOVERY riculum vita (including principal publications) for each witness and reasonably complete statemer.t of the particular safety or environmem When time pressure causes special difficulties for intervenors, discovery aspects of the sleeving project that will be of concern to each witness. i against intervenors may be restricted in order to prevent interference with addition, parties may file briefs (including WE's response to intervenor their preparation for a hearing.
brief attempting to show good cause for blocking the demonstra gram) up to 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> prior to the hearing.
RULES OF PRACTICE-DISCRETION OF PRESIDING OFFICER Due to the tight time schedule within which Wisconsin's Environment.
Decade must work, WE may conduct discovery only to the extent th.i A Board may authorize specially tailored proceedings in the interest of Decade agrees that the scope of the requested discovery will not undu expedition.
interfere with it in the preparation of its case.
Parties are advised to be prepared for night sessions and possibly Saturday session if required for the completion of business. In addition parties are advised that the hearing may be reconvened on November i and 7 if necessary.
s e
862 863
C+te as 14 NRC 866 (1981)
L8P-8147 FOR THE ATOMIC SAFETY AND UNITED STATES OF AAERCA LICENSING BOARD NUCLEAR REGULATORY COMAtSSON
(
ATOMIC SAFETY AND LiCENS NG BOARD Peter B. Bloch. Chairman 8efore Adtr.inistrative Judges:
ADMINISTRATIVE JUDGE Herbert Grossman, Chairman October 15,1981 Dr. Frank F. Hooper Bethesda, Maryland Gustave A. Lirienberger In the Matter of Docket No. 50-395-OL SOUTH CAROLINA ELECTRIC and GAS COMPANY, ef al.
(Virgil C. Summer Nuclear Station, Unit 1)
October 15,1981 The Licensing Board reaffirms its intention of calling seismolog as Board witnesses and orders the NRC Staff to respond to the reports.
ADJUDICATORY llEARINGS: STATUS OF NRC STAFF The Licensing Board's determination to call its own expert witnesse not sufficient cause for the NRC Staff to impugn the motivation of the Board Chairman where the record of the case does n improper motives.
LICENSING BOARDS:
DISCRETION IN MANAGING PROCEEDINGS Rule 706 of the Federal Rules of Evidence, which permits Federal courts to appoint expert witnesses of their own selection, merely codified existing law under which the inherent power of a trial judge to app l
expert of his own choosing is virtually unquestioned.
1 864 865
ATOMIC ENERGY ACT: LICENSING STANDARDS LICENSING BOARDS:
DISCRETION IN MANAGING mus eny eo rat ng lice. t would imp o a
ntrary t h PROCEEDINGS public interest for a Board to presume that a license must issue and qui d to affirmatively seek evidence to support the issuance.
Scott V. Spanjer Bics. Inc., 298 F.2d 928 (2d Cir.1962) and Danville Assn. v. Bryant-Buckner Assocs.. Inc., 333 F.2d 202 (4th Cir.1964) are the principal Federal appellate decisions recognizing the inherent power of LICENSING BOARDS:
a trial court to appoint its own expert, a practice which dates back to cases AUTilORITY TO REGULATE recorded in the 14th century.
PROCEEDINGS Matters pertaining to trial management are not always apparent to appellate tribunals.
LICENSING BOARDS:
DISCRETION IN MANAGING PROCEEDINGS LICENSING BOARDS:
Appellate tribunals have not reversed, or even granted interlocutory AUTHORITY TO REGULATE PROCEEDINGS review of, decisions by Federal administrative judges to call their own experts.
Administrative boards cannot voluntarily adopt rules that curtail their own powers in conDict with established legal standards.
RULES OF PRACTICE: EXPERT WITNESSES ADMINISTRATIVE PROCE*)URE ACF: PRESIDING OFF NRC Licensing Boards have adopted the practice of calling their own expert witnesses when the circumstances warrant it.
commonly accepted powers of a hearing tribunal may conflict with $19 the Atomic Energy Act, which established the Licensing Boards as LICENSING BOARDS:
DISCRETION IN MANAGING independent tribunals, and the Administrative Procedure Act, unde PROCEEDINGS they function.
The Appeal Board has indicated that the decision to call a witness for the Board rests ultimately and solely upon the sound discretion of the ADJUDICATORY BOARDS: DELEGATED AUTIIORITY tribunal which called the witness. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-382,5 NRC 603,608 (1977).
Licensing and Appeal Boards lack the power to make. policy. Of Power Systems (Floating Nuclear Power Plants), CLI-79-9,10 NR 261 (l979).
LICENSING BOARDS:
DISCRETION IN MANAGING PROCEEDINGS APPEAL BOARD:
in order to call its own expert witness, a Licensing Board need not EFFECTIVENESS OF DECISION satisfy a standard requiring that there be an extraordinary situation in which it is demonstrated without question that the Board cannot ot erwise reach an informed decision.
be followed by Licensing Boards.
m 866 867
arrise at maximum magnitudes and ground motion, and the application of MEMORANDUM AND ORDER s
(Reaffirming Board's intention of Calling independent Experts, response spectra, in this unique situation involving extemely shallow and Requiring Further Profiled Staff Testimony) reservoir-induced seismicity in the Eastern United States.
After prolonged discussion and with the unanimous agreement of its l
members.' the Board decided to seek out those persons in the forefront of P IEhf 0RANDUh1 the various disciplines to review the record and give their opinions. From the U.S. Geological Survey (USGS), we were successful in acquiring th Statement assistance of Drs. William B. Joyner, David Af. Boore and J. P. Fletcher.
On June 22, 1981, the evidentiary hearing in this operating license Drs. Boore and Joyner are recognized as outstanding authorities in es-proceeding began with the introduction of testimony on the seismic issue. -.
timating ground motion, and were co-authors of two USGS circulars (672 The Board has already been alerted to the sensitivity of this issue by a and 795) which supplied much of the foundation for the Appeal Board's decision in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power discussion in the Safety Evaluation Report, which indicated that the facility had been designed to withstand ground motions of 0.15q for a safe Plant, Units I and 2), ALAB-644,13 NRC 903. (June 16,1981). They shutdown earthquake (SSE) and 0.10g for operating basis earthquake-have recently updated the subject of those circulars to include strong (OBE); and that a ground acceleration from a recent seismic event in the motion records from the 1979 Imperial Valley, California earthquake.
vicinity of the plant had been recorded at 0.25g. In addition, the SER USGS Open File Report 81365. Dr. Fletcher was responsible for stress reported that: the frequency of seismic occurrences in the area had drop calculations at the Atonticello reservoir which were the subject of increased greatly due to the impoundment of the hionticello reservoir differing professional opinion among the Staff experts regarding the es-needed to provide cooling water; the ground motion already encountered, of timates of earthquake magnitude and ground acceleration. lie also co-greater than design basis, resulted from a magnitude 2.8 earthquake; authored USGS Open File Report 81-0448 containing an analysis of and, there were differing opinions by the Applicants, Staff, ACRS, and a accelerograms that recorded ground motions of 0.25g,0.22g, and 0.24 the N1onticello reservoir.
dissenting Staff member as to the maximum earthquake that might be expected from the reservoir induced seismicity, varying from a magnitude The Board was also fortunate in acquiring the assistance of Drs, 4.0 to a magnitude 5.3 (each of these projected magnitudes being far in Enrique Luco and hiihailo Trifunac, who are seismic consultant.;
'he excess of the magnitude 2.8 which had already produced ground motion in ACRS and who had previously been called by Licensing and Appeal excess of the design basis).
Boards as Board experts. Some of Dr. Trifunac's state-of-the-art work has The Board received the Applicants' and Staff's testimony on seismicity been utilized by Drs. Boore and Joyner in their formulations. In addition to his other qualifications, Dr. Luco is a colleague of Dr. J. Nf. Brune at from June 22, 1981 through June 24, 1981. Intervenor had no seismic witnesses and indicated at the outset that he was not well equipped t the University of Southern California whose model (the Brune model) was cross-examine on this issue, not knowing the distinction between mag-a large factor in the Applicants' and Staff's formulations in this case. We expect that Dr. Luco will have great familiarity with applying the results nitudes of earthquakes and ground accelerations. Tr. 755-757. The Board s concern for the seismic safety of the facility was further heightened by the of the Brune formula to physical structures.
presentation of Applicants' a,.d Staff's testimony which indicated that their in a conference call during the week of July 6,1981, the Board respective analyses of the seismic design basis did not depend upon indicated to the parties that it was considering retaining Board experts. W traditional methods of estimating magnitude and ground motion para-formally announced that decision when the hearing recommenced o 13, 1981. On July 17, 1981, we fully explained what it was that we meters on the basis of empirical data but, rather, upon certain state-of-the-art modelling techniques. While the Staff reviewers appeared to the Board to be highly competent and credible experts in the fields of geology,
' We are aware of the Appeal Board Paners practice of requesting additional e only one or the board members believes chai ihe additionai informaison will assist in ih seismology, geophysics, and structural engineering, none of them was dacharse of his adjudicatory functions. See unpubhshed Memorandum and Order (4far established to be in the forefront (as opposed to being merely h gh!y 1980), c ncurring (North Anna Nuclear Power Station, Units I and 2). Docket N competent) in-the formulation of the highly complex modelling required to Because of the unanimous agreement of our members that the testimony of inde Board caperts would be desirable, we did not have to resort to such a practice.
868 869 O
intended the experts to do ar.d why we had decided to retain them. At a conference call held the next week, we reaffirmed that decision and gase On August 27, 1981, the Appeal Board issued an unpublish the parties the names of our potential witnesses.
memorandum elaborating on its thinking. With a view towards the Lic On August 7,1981, the NRC Staff filed a motion seeking directed sing Board's reviewing the expected Staff prefiled testimony due certification of the Licensing Board's determination to call independent tember 15, 1981, the Appeal Board suggested a standard to be applie l
experts. A substantial portion of that motion concerned itself with the the calling of Board experts. The Appeal Board opined (p. 6) that "s allegation that the Licensing Board had failed to explain the reasons for an undertaking
[the calling of Board experts] should be reserved f j
seeking the assistance of independent consultants. On August 10,1981, the extraordinary situation in which it is demonstrated beyoi that most Appeal Board requested our full explanation. On August 13,1981, this question that a Board simply cannot otherwise reach an informed Board issued a memorandum which indicated, inter alia. that a full on the issue involved."
explanation had been contained in the transcript of the hearing on July 17, Moreover, even before
- s. ' ting the point at which that suggesti 1981 at Tr. 3790-3817. Later that same day, the Appeal Board issued an general rule might be applico,a determine whether Board witnesses order requiring responses to the Staff motion and providing the Staff with be called, the Appeal Board suggested options that must be ex an opportunity to file a supplement to its motion.
Licensing Board has been persuaded for one reason or another of the evidence is unreliable. As stated by the Appeal Board, The Staff filed that supplement on August 21,1981 in which it shifte'd its focus from the allegation of its August 7,1981 memorandum that the things, the [ Licensing) Board can (1) simply reject that evidence Board had failed to give a thorough explanation for its determination to decide the issue without regard to it (i.e., on the basis of the oth retain Board witnesses to an allegation that the Board's action was basca esidence of record); or (2) require the sponsoring party to plemental testimony which is not subject to the same infirmities "
upon the Board Chairman's supposedly pejorative thoughts and accusa-tions. The Board Chairman remarked at Tr. 3792 that the Staff should In its August 10 August 25 and August 27,1981 issuance recognize that an applicant should be expected to present information and Board had not acted on the Staffs motion for direct consequently, had not ordered us to take any specific action. Noneth experts primarily in support of its position, and that the Staff should review Applicants' information critically before making a final deter-on the Appeal Board's suggestion that we review the Staffs Sep mination. The Staff read into that discussion (NRC Staff Supplement 1981 prefiled testimony, which we have now received, we August 21,1981, p. 4) a " clear implication.. that Staff cannot be trusted any further proceedings on the seismic issue to reconsider our to present independent, unbiased information for the Board's decision;" a light of Staffs testimony. On October 2,1981, the Appeal Board
" conclusion that the Staff would ignore pertinent data or information further " Memorandum," which appeared to order us "not to call any which is potentially adverse to the Staffs position;" and "a prejudgement independent consultants as Board witnesses" until we have without good cause that the Staff would be less than candid with the reasons to the Appeal Board and that Board has had a chance to a r
have now read the further Staff testimony and, for the reasons tha Board regarding such matters with the consequence that the ' Staffs concern for its position' would prevail over truth." None of these im-have concluded that our decision of July 17, 1981 to call Bo 1
plications, conclusions, or prejudgements (even the phrase m, quotations) was desirable under the circumstances, and finds further was correct, are to be found in the record of the case. Staffs memorandum also support in the Staffs September 15 testimony. Although the Board witn indicated that it would present further prefiled testimony of its scismic ses have completed their written reports and, like Staffs and App seismic witnesses, are prepared to testify, we are staying our ha panel by September 15,1981.
On August 25, 1981, the Appeal Board ordered that the Staff file that matter of further scheduling until the Appeal Board has had an op tunity to decide whether it wishes to act supplemental testimony no later than September 15. The Appeal Board conjectured that, following the Licensing Board's consideration of that certification.'
on the motion for directed supplemental testimony, the Licensing Board might no longer find it necessary to call the independent experts. The Appeal Board's order 2
indicated that it would issue a further memorandum elaborating upon the The Licennns Board had originauy citabinhed a ichedute of requ reporis by septernber to.1981 and holding the further hearing on s sperts'
- matter, of Septembcr 21. 1981. We note that week rnotion for directed certification shall not stay the proceeding interpret the Appeal Board's direcison to us to conuder the further ered. We 870 CONTtNtJED 871
=
The legal Basis for Cdling Board Witnesses successfully challenged at this late date, especially after the adoption of Rule 706 of the Federal Rules of Evidence, which became effective on Rule 706 of the Federal Rules of Evidence.
July I,1975, permits a Federal Court to appoir3t expert witnesses of its Nor do we have to look beyond the Nuclear Regulatory Commission to own selection. The Rule did not confer new powers upon the trial court, find authority for a licensing board's calling its own experts. In addition to '
but merely codified existing law and established specific procedures by the two cases cited in the Appeal Board's unpublished memorandum of which expert witnesses would be appointed, compensated, and examined.
August 27,1981, fn. 5 Pacific Gas and Electric Co. (Diablo Canyon As stated in the Advisory Committee's note to Rule 706 with regard to Nuclear Power Plant, Units I and 2) ALAB-519, 9 NRC 42 (1979),
i existing law, "the inherent power of a trial judge to appoint an expert of ALAB-604,12 NRC 149,150-151 (1980) and Public Service Co. of New his own choosing is virtually unquestioned."
Ilampshire (Seabrook Station, Units I and 2) Docket Nos. 50-443 and The Advisory Committee cited the two principal cases m. the area, Scott 50-444 (November 6,1980 unpublished order), there are other cases in
- v. Spanjer Bros., Inc., 298 F.2d 928 (2d Cir.,1962) and Danville Tobacm which board experts were called, eg., Southern Cahfornia Edison Com '
Assocation v. Bryant-Buckner Associates. Inc., 333 F.2d 202 (4th Cir.
pany (San Onofre Nuclear Generating Station, Units 2 and 3), Docket 1964). In Scott v. Spanjer, p. 930, the 2nd Circuit indicated its understan-Nos. 50-361-OL and 50-362-OL; Public Service Electric Gas Co. (Hope ding that " appellate courts no longer question the inherent power of a trial-Creek Generatirg Station, Units I and 2), LBP-78-15,7 NRC 642 (1978);
court to appoint an expert rader proper circumstances to aid in the just and Public Sersice Co. of Oklahoma (Black Fox Station Units I and 2),
4 disposition of a case." It further quoted (Ibid.) McCormick on Evidence LBP-78-26, 8 NRC 102 (1978). See also Consumers Power Company that "the existence of judge's power to call witnesses generally and expert (Midland Plant, Units I and 2), ALAB-382, 5 NRC 603, 608 (1977), in witnesses particularly seems fairly well recognized in this country, and that which the Appeal Board indicated that "the decision to call or not to call a cases have been recorded as early r,s the 14th century on the summonmg witness for the Board must rest and does rest ultimately in the sound discretion of the tribunal alone."
of experts by the judges to aid them in deciding scientific issues.
Not only have trial courts claimed this inherent right to call experts of their own choosing, but so have Federal administrative judges.' See e.g.1)
The Ucensing Board's Present Position Federal Power Commission-Permian Basin Area Rate Case. 34 F.P.C.
17, 238 (1965); 2) Civil Aeronautics Board-Continental-Western Merger We have reviewed the Staffs further prefiled testimony submitted on September 15, 1981. We have also received and issued to the parties the Proceeding. Docket No. 38733; 3) Powl Rate Commission-Docket No.
MC73-1; Docket No. R741; 4) Federal Communications Commission-written reports from the independent consultants, although we do not AT&T Rate Matter. Docket No. 19129; 5) Federal Energy Regulatory consider the substance of those reports in re-evaluating our July 17,1981 Commission-Pacific Power a light Co., Docket Nos. E7777, E7296.
ruling. Staff, however, has reviewed the U.jGS experts' report in their September 15,1981 further testimony, and has concluded (p. 46) that the We have found no court cases or admimstrative board proceedm, gs in which a trial court or board was reversed in callmg,ts own expert, or even report contains " implicit support of the Staffs methodology in deriving the i
one in which the matter has been given mterlocutory review by an max mum reservoir-induced earthquake" and that any Staff differences appellate tribunal. We doubt that any such case or proceeding exists: the with those experts' estimate of ground motion relate to high frequencies inherent power of a trial court to call its own experts when it deems that that would not cause damage to the Summer plant. If Staffs conclusion is that the report corroborates the Staffs position, and that cor-correct procedure desirab!c is too firmly ingrained in the common law to be roboration can be ' established by those witnesses appearing at further hearing. in our opinion our decision to call independent witnesses has been calhng the experts as equivalent to an " order." even though the direction was contained in justified. If the testimony of the independent consultants allays the safety Memorandial dated August 27,19si and October 2,19si. Consequently, we did not hear the seismicity experts during the week of September 21, 1981 and have left the further concerns of the Board that prompted the retention *of those experts, it will hearing dates open until the Appeal Board acts, even though we do not wish to delay the g
gg proceedins.
perating license, if the other reports also corroborate the Staffs position couri cases sencrally involve only private parties. Where the public interest is involved, the reasons are stronger for permitting the presidmg ofScer to call his own witnesses, especially on the other aspects of seismicity, they will supply added support to the where the matters involve the public health and safety.
record; if they do not, we would want to explore the reasons why.
872 873
Taking into account the established precedents, which unanimously support the power of the trial tribunal to retain independent witnesses, and would constitute a policy decision on our part rather than the application Staffs representations that the report of at least one group of experts will of an established legal standard. We hase some question as to whether esen the Commission would consider adopting such a policy standard in serve to satisfy our safety concerns, we believe that the correctness of our derogation of the commonly accepted powers of a hearing tribunal, which decision of July 17, 1981 to retain these experts is beyond question. We might violate at least the spirit of $191 of the Atomic Energy Act, as cannot, however, claim to have satisfied the new standard that the Appeal amended, which established the Licensing Boards as independent tribunals, Board has suggested for calling Board experts, that this is "that most and the Administrative Procedure Act, as amended (5 U.S.C. $l551, er extraordinary situation in which it is demonstrated beyond question that a seq. ), under which they function.
Board simply cannot otherwise reach an informed decision on the issue involved." in view of the fact that the burden is on the parties to establish Moreover, even if we could agree with that suggested new policy, we that the safety issues can be resolved in favor of plant operation, we do not lack the power to adopt it. In Offshore Power Systems (Floating Nuclear Power Plants) CL1-79-9,10 NRC 257, 261 (1979), the Commission see how that standard can ever be satisfied:if the safety of the plant is not j
established in the record, the Board's informed decision must be to deny indicated that only it, and not the licensing boards (in that case an appeal the license. The suggested standard, as we see it, becomes appropriate only.
board), was " empowered to make policy as well as to apply it."
We do not mean to appear as disobeying an Appeal Board order. We if we presume that the operating license should issue and that we must acknowledge that the Appeal Board has the authority to review our acts affirmatively seek evidence that would support the issuance-a licensing and to reserse our position even on the basis of what we consider to be the standard that we think would be improper and contrary to the public adoption of a new policy. What we consider to be a matter of policy may interest.
be determined by the Appeal Board to be a renection of legal precedents Furthermore, as we have established previously, the standard for calling and, between the two boards, the Appeal Board's decision would be Board experts suggested by the Appeal Board is not a reflection of controlling. It is only the Commission that could then question the Appeal established precedent. All authorities of which we are aware are un-Board's ruling, regardless of how strongly we might feel.
animous in upholding the power of the trial tribunal, even when the public liowever, as we read the issuances of the Appeal Board in this pro-interest is not present, to call its own independent witnesses and in treating that action as an interlocutory one which can only be reviewed in the final ceeding, we do not find any order to us that requires the appliestion of the suggested standard. The Appeal Board has made it clear th : it has not appeal.' For this Licensing Board to voluntarily adopt the suggested yet even decided to accept for consideration and decide on the merits the standard, in derogation of the unanimously-accepted powers of a trial Staffs motion for directed certification. Moreover, in its August 27,1981 tribunal, in order to moot the pending motion for directed certification, Memorandum, which suggested t!e new standard, the Appeal Board in-dicated (Op.1, fn.1) that it had not yet reviewed the testimony in the preceeding, seemingly a prerequisite to deciding the Staffs motion on the
- The Appeal Board's August 27, 1981 memorandum was the third in a series of recent merits. We have no doubt that if the Appeal Board were to consider the oSe o'f i e L c ns n o$ hit of an adIer ry$n"y$
pr in1ts Licensing Board's decision to call expert witnesses in the context of the live r
ced ng ne,
1981 Decision ( ALAB442), reversing the Licensing Board's admission of the Fairfield facts of this case, as would be disclosed by its reading the transcript of United Acuon petitioner into the proceeding. the Appeal Board indicated (Op. 17, 20-21) its preference for hasing the Licensing Board assume the role of cross-examiner oser that of the hearing, it would reconsider proposing that new standard and would affirm late-fihng petitioner, without apparently considering the attendent consequence of the Lice.
this Board.
nung Board's sacrificing some of its appearance of impartiahty.
In sum, we find the procedural context of the Appeal Board's issuances Similarly, the Appeal Board's issuances of August 10,1981 and August 27,1981, requinns uncertain. We interpret them as directing us only with regard to reading on i h th Stal and pp n na r ef-writ g cont the A peal the Staffs September 15,1981 further testimony and stating our views on We do not raise this matter to imply an intentional denigration of hcensing board authority calling the Board witnesses. We view the standard enunciated in the or to question the Appeal Board's authonty to reverse this Licensing Board on discretionary matters. We raise is only to point out a dimenuon to the process of reviewing matters of trial August 27, 1981 Memorandum as a suggested standard that we might management that is not always apparent to appellate inbunals.
P ),
8 PP obviate an Appeal Board consideration on the merits of the Staffs motion for directed certification. In our opinion, however, we cannot voluntarily apply the standard proposed by the Appeal Board because we cannot 874 875
accept that standard as reflecting applicable legal precedent. Were we to Cite as 14 NRC 877 (1981)
LBP-81-4 adopt that standard, we would be establishing policy for the Commission in violation of the prohibition of Offshore Power Systedes, supra. Further.
UNITED STATES OF AMERICA more, it is a policy which we believe might violate the statutorily imposed NUCLEAR REGULATORY COMM:SSION responsibilities of a licensing board under the Atomic Energy Act and the i
Administrative Procedure Act, and thus would have an undesirable effect ATOMIC SAFETY AND LICENSING BOARD l
upon licensing board's responsibilities to the public health and safety.
However, we recognize the authority of the Appeal Board to decide these Before Administrative Judges:
matters contrary to how we view them and to reverse our actions. We do Sheldon J. Wolfe, Chasman not claim the last word on these matters--only the first. We, therefore, Dr. Walter H. Jordan reaffirm our ruling of July 17,1981 to call the independent consultants as Dr. Harry Foreman board witnesses to appear together with the Applicants' and Staffs seismic witnesses at a further hearing, but do not schedule such a hearing pending in the Matter of Docket No. 50-382-0 a further issuance by the Appeal Board.
LOUISlANA POWER &
ORDER LIGHT COMPANY (Waterford Steam Electric Station, For all of the foregoing reasons, upon which the Board relics to proceed Unit 3)
October 20,198 with calling its own expert witnesses, it is this 15th day of October,1981 Ordered The Licensing Board grants the Applicant's motion for summary di:
That Staff file by October 26, 1981 further written testimony, to be p sition of one of the Joint Intervenors' contentions which related i presented at further hearing, responding in full to the Board experts.
safety-related concrete, and dismisses the contention.
reports.
Judge Hooper joins in this Memorandum and Order, but is not availa-RULES OF PRACTICE:
SUMMARY
DISPOSITION b!c to sign it.
It is the party seeking summary judgement, not the party opposing i FOR THE ATOMIC SAFETY AND which has the burden of showing the absence of a genuine issue as to an LICENSING BOARD material fact, and, where the moving party's evidentiary matter in suppor of the motion does not establish the absence of a genuine issue, summar judgment must be denied even if no evidentiary matter is presentec
- "^
Herbert Grossman, Chairman ADMINISTRATIVE JUDGE RULES OF PRACTICE:
SUMMARY
DISPOSITION Gustave A. Linenberger, Jr.
If the movant has properly supported its motbn for summar:
ADMINISTRATIVE JUDGE disposition, it is incumbent upon the opposition to entwer, setting fort l specific facts showing that there is a genuine issue of fact. Virgini.
Electric and Power Company (North Anna Nuclear Power Station, Unit I and 2), ALAB-584,11 NRC 451 (1980).
876 377 t
RULES OF P2ACTICE:
SUMMARY
DISPOSITION A party cannot avoid summarydisposition on the mere hope thatat trial he will be able to discredit movant's evidence not can'he be permitted to and that it had been predicated upon reports by several members I the Joint Petitioners concerning conversations with various con-go to trial on the vague supposition that something may turn up. Gulf States Utilities Company (River Bend Station, Units 1 and 2), LBP-75-10' 5tructi n emP oyees who were unidentified and unknown to him.
l
"" * *5 # " " ' " ' '
i I NRC 246 (1975).
5Pecific allegation or affidavits. However, counsel stateo that he
{
~
decided to file the contention after a local newspaper article RULES OF PRACTICE:
SUMMARY
DISPOSITION appeared, which reported that three concrete masons, who declined to give their names or to provide detailed explanations to the If the issue is demonstrably insubstantial, it should be decided pursuant newspaper reporter, stated that they had witnessed numerous mis-to summary disposition procedures in order to avoid unnecessary and takes being made in the concrete work at Waterford. (A copy of possibly time-consuming hearings. Houston Lighting and Power Company the New Orleans States-Item article, dated April 3,1979 was (Allens Creek Nuclear Generating Station, Unit I), ALAB-590,11 NRC appended to the Joint Petitioners
- submission of June I,1979.)
542 (1980).
Mr. Jones urged that this contention be admitted in order that discovery could be initiated, and represented to the Board that the MEMORANDUM AND ORDER Joint Petitioners would abandon this contention should discovery (Granting Applicant's Motion for Summary Disposition fail to disclose facts proving the allegations in the contention (Tr.
Of Joint Intervonors' Contention 22) 102-105).
At the request of the Board, under date of May 30,1979, the On August 21, 1981, pursuant to 10 CFR $2.749, Applicant filed a Staff furnished a copy of a memorandum prepared by a member Motion For Summary Disposition of Joint Intervenors' Contention 22 f the Office of Inspection and Enforcement on April 4,1979. The (Safety-Related Concrete). The NRC Staff filed an Answer in Support memorandum reflected that, upon being interviewed, the staff thereof on September 15, 1981. The Joint Intervenors (Save Our Wet-lands, Inc. and OystershcIl Alliance, Inc.) neither responded to Applicant's writer f r the States-Item newspaper indicated that he had no further information than that presented in the article. The Motion for Summary Disposition nor responded to any new facts and arguments presented in Staffs supporting answer.
memor ndum also reaccted that the staff writer stated that the three concrete workers were working on the intake structure, a non-safety related structure, but that these workers did say th.it MEMORANDUM their comments also applied to previous work. The staff writer was I. Backgr M unaware whether these three workers were employed by a subcon-tractor who performed safety related work or by another subcon-With respect to Joint Intervenors' Contention 22,' our Order dated tractor who performed non-safety related work. The memorandum September 12,1979 reaccts the following:
concluded that " Based on the vagueness of the allegation and the reported employees' relationship to previous safety related work During the Special Prehearing Conference [ held on April 26, act es, it is n t c nsidered practical to pursue this mattri 1979], the Joint Petitioners' counsel, Mr. Jones, acknowledged
"'I that, when drafted, there was no specific basis for this contention, We are loathe to admit any contention' founded on purported
' As originally submitted Contention 22 read:
allegations of unidentified individuals. On the other hand, however, 3' i5 ' "'*"d*d 'h't Applicant has failed, to discover, acknowledge, report or remedy defects a portion of the contention relating to safety related concrete in materials. consgruction and workmanship such as improperly poured and set concrete and concrete poured without required reinforcement during the fabrication of the containment construction is reasonably specific and perhaps may be Deshed out vessel (reactor vessel) and/or related integral systems.
uEOet use of the discovery procedure. Further, after discovery has been concluded, in the event the Joint Petitioners do not withdraw this contention, Applicant and/or Staff may move for summary 878 879 L
disposition pursuant to 10 C.F.R. $2.749. In sum, the contention is been properly mixed and is acceptable before it leaves the bati specific enough to evoke our concern. The contention, as rephrased p! ant. (Gerrets' affid., par. 5) by the Board, is admitted and reads as follows: " Applicant has
- 5. Before any safety-related placement begins, tests upon the f?
failed to discover, acknowledge, report or remedy defects in safety related concrete construction."
truckload of concrete of the day are conducted by Peaboq Testing Services for air content, slump, unit weight, ambit II. Discussion temperature, and concrete temperature. These tests are repeat approximately every 50 cubic yards of concrete after the fit In support of its Motion, Applicant appended the affidavit of Thomas Gerrets, who is its Quality Assurance Manager for the Waterford 3 batch of the day and every batch is checked for prop water / cement ratio and the number of drum revolutions on 0 l
nuclear generating plant. Applicant also appended Exhibits A through G.
delivery truck. Additionally, a set of four compression cylindt Applicant's statement of material facts, as to which it asserts there is no genuine issue to be heard, seDects the following:
is made from the first batch of the day and every 150 cut yards thereafter. If a concrete placement is less than 150 cut
- 1. Applicant's architect-engineer for the Waterford 3 project is yards, but more than 50 cubic yards, a minimum of two sets Ebasco Services, Inc., which has general supervisory respon. -
cylinders must be molded. The cylinders are then tested f sibility for construction, including the placement of all safety-related concrete. Most of the concrete was actually placed 6y compressive strength at the Peabody Concrete Testing I abor) tory with one cylinder being broken at 7 days of age; two at i an Ebasco subcontractor, J. A. Jones Construction Company.
days and one which is used as a spare should problems I Some of the specialized concrete placements were performed by encountered with the 28-day breaks. Cylinders are molde another subcontractor, Fegles Power Service. At present, more than 99% of safety-related concrete construction at Waterford 3 cured and broken in accordance with ASTM C-31. (Gerret affid., par. 6) has been completed. (Gerrets* affid., par. 2)
- 6. Before each concrete placement, the placement location is su
- 2. Applicant has implemented a Quality Assurance (QA) and jected to a pre-placement inspection by representatives <
Quality Control (QC) program for Waterford 3 in compliance Ebasco and the concrete subcontractor. The actual placement '
with 10 C.F.R. Part 50, Appendix B. This program is described concrete is performed in strict compliance with Ebasco's D in Section 1.8 of the Waterford 3 Preliminary Safety Analysis tailed Specifications for Concrete Placement, Curing ar Report and in Chapter 17 of the Final Safety Analysis Report.
Finishing. The placement must also be carried out in acco in addition Ebasco independently implements its own QA/OC dance with the detailed concrete placement procedures of tl program, which has been generically approved by the NRC.
concrete subcontractor. All concrete placements are observe Both concrete construction subcontractors also have detailed and inspected by QC inspectors of the concrete subcontractor i QA/QC programs, which have been reviewed and approved by ensure that the concrete is properly placed and cured in acco Ebasco. (Gerrets' affid., par. 3)
- 3. The cement, aggregate, admixtures and other materials used in dance with the established procedurcs and specifications. I addition, most of the concrete placements have been indepci batching concrete for Waterford 3 are all obtained from supply dently observed and inspected by Ebasco QC inspector sources with QA programs that have been reviewed and ap-(Gerrets' affid., pars. 7, 8) proved by Ebasco, and are inspected by the concrete batch
- 7. All inspections and QA/QC functions concerning safety-relatc contractor upon receipt. In addition, an independent testing concrete are documented in accordance with 10 C.F.R. Part 54 laboratory, Peabody Testing Services, Inc., performs physical Appendix B, and the documentation is retained by Applican and chemical tests on the cement, aggregates and water.
In addition, Applicant's QA auditors periodically observe th (Gerrets' affid., par, 4) work at Waterford 3 and audit the QA/QC programs c
- 4. A!! concrete is batched in accordance with mix designs that Ebasco and the concrete subcontractors to ensure that prope m'cet industry standards and have been approved by Ebasco, and thereafter Ebasco and Peabody Testing Service peform QA/QC procedures are followed. Ebasco also independenti j
appropriate tests and inspections to ensure that the concrete has audits the concrete subcontractors
- QA/QC procedures, an i
Ebasco's QA/QC program at the Waterford 3 site is in tur 880 881
audited by representatives from Ebasco's headquarters in New York. Applicant's QA/QC program is ' audited by Middle South We note again that the Joint Intervenors neither responded to Ap-Services, Inc., a subsidiary of the holding company that owns plicant's Motion for Summary Disposition nor responded to any new facts Applicant. Finally, the NRC performs its own on-site inspec-and arguments presented in the Staffs supporting Answer. Except for the tions of the construction at Waterford 3 and audits of thecircumstances herein, these failures to respond would not necessarily be QA/QC program. (Gerrets' affid., par. 9) fatal because, in AdicArs v. Kress and Company, 398 U.S.144 (1970), the
- 8. During the cou se of construction, the placement of safety. -
Supreme Court held that it is the party seeking summary judgment, not related concrete has resulted in only four Construction De-the party opposing it, which has the burden of showmg the absence of a ficiency Reports. Each deficiency was duly reported to the genuine issue as to any material fact, and that, where the moving party's j
NRC, corrected by Applicant, and closed out through an NRC evidentiary matter in support of the motion does not establish the absence l
inspection.* (Gerrets' affid., par. I I) of a genuine issue, summary judgment must be denied even if no opposing
- 9. During the course of construction, the NRC made a number of evidentiary matter is presented liercin, however, the movant supported by the Staffs answer, has sustained its burden of establishing the absence of a unannounced visits to the Waterford 3 site to inspect the genuine issue of material fact via the affMavit of its quality assurance construction, including the placement of safety-related concrete..
manager and via supporting exhibits which show that detailed specifica-None of the NRC inspections revealed any significant defect in
- j the safety-related concrete placed at Waterford 3 of such tions and the test and inspection procedieres acre followed by Applicant seriousness that it should have been reported to the NRC under and by its architect cngineer and subcontractors, and that any deficiencies 10 C.F.R. $50 55 (c) because of its effect on safety. All of the were corrected and/or resolved. Where, as here, the movant had properly deficiencies concerniag safety-related concrete identified by supported its motion for summary disposition, it was incumbent upon the NRC inspections have been relatively minor, mostly involving Joint Intervenors to answer, setting forth specific facts showing that there problems with QA/QC procedures and documentation. In each is a genuine issue of fact. Virginia Electric and Power Company (North case, the problem discovered has been wrrected by Applicant, Anna Nuclear Power Station, Units 1 & 2), ALAB-584,11 NRC 451 453 (1980).
and the matter has been closed following a reinspection by the A party cannot asoid summary disposition on the mere hope NRC.'(Gerrets' affid., par.12) that at trial he will be able to discredit movant's evidence nor can he be
- 10. With regard to the New Orleans States-Item newspaper article, permitted to go to trial on the vague supposition that something may turn Applicant investigated the allegations wntained therein, in.
up.' Gulf States Utilitics Company (River Bend Station Units I and 2),
ciuding numerous interviews with construction workers, but was LBP-75-10,1 NRC 246, 248 (1975). In sum, the safety-related concrete unable to locate the three concrete workers in question, and was issue is one of those " demonstrably insubstantial issues' that should be unable to discover any factual basis for the questions they had decided pursuant to summary disposition procedures in order to avoid reportedly raised.*(Gerrets' affid., par.13) unnecessary and possibly time-consuming hearings. See Houston Lighting and Powcr Company (Allens Creek Nuclear Generating Station, Unit I),
ALAB-90,11 NRC 542,550 (1980).
2 These facts were confirmed in NRC Inspector beph Tapia's affidavit (par. 3) which was appended to the NRC Staff's supporting answer.
ORDER
' in his affidavit, NRC Inspector Tapia attes'cd that, during the past five > cars the NRC Office of Inspection cod Enforcement had conducted seven inspections of concrete con struction activitics, and that, while two notices of items of non-compliance acre issued all such iterns have been satisfactorily resolved. (pars. 4,5) s in their ansacrs to Staffs Interrogatories and Response To Request for Documents nerve
- In an affidavit appended to the Staffs supporting answer
. Rarnon Hall, Acting Chief, on January 15. 1980, while stating that they were in the proccas of identifpng appropriate Engineering and Materials Section. Office of Inspection and Enforcement, attested that after witnenes in support of Contention 22 and would seasonab!) disclose this information. the intersieming the newspaper's staff writer who had written the article, he had pacpared the Joim Intervenors thereafter dad not furnish this information. Further, with respect to other memorandum dated April 4,1979, and that, since that conversaison, he had receised no interrogatories regarding this contentson. the Joint intervenors stated that the) =cre claboration, substantiation, or further allegation concerning the subject matter of that articlefurther commun unanswerable untd such time as the Board granted their Motion to Compcl Applicant to (pars. 4-6) answer certain interrogatories. In an Order of January II.19160, the Board denied the motion to compel because the mformation sought was not related to the issue piaced into controversy by Contention 22.
882 883
For the foregoing reasons, it is this 20th day of October 1981 Qe as u MC WM NH ORDERED That Applicant's Motion For Summary Dispositiorrof[oint Intervenors' UNITED STATES OF AMERICA Contention 22 is granted, and the Contention is dismissed.
NUCLEAR REGULATORY COMMISSION Judges Jordan and Foreman concur.
?
ATOMIC SAFETY AND LICENSING BOARD i
FOR TI{E ATOMIC SAFETY AND Before Administrative Judges:
LICENSING BOARD Robert M. Lazo, Charman Gustave A. Linenberger David R. Schink Sheldon J. Wolfe ADMINISTRATIVE JUDGE in the Matter of Docket No. 50-13'3-OLA i
i PACIFIC GAS & ELECTRIC COMPANY (Humboldt Bay, Power Plant, Unit No. 3)
October 2D,1981 l
in a license amendment proceeding, the Licensing Board seeks infor-mation from the Staff on whether maintaining the plant in long-term cold shutdown pending issuance by the Commission of backfit requirements for older plants presents risk to the health and safety of the public.
MEMORANDUM AND ORDER in an order entered on July 14, 1981, the Atomic Safety and Licensing Board (Board) directed Pacific Gas and Electric Company (Licensee) to submit a written statement setting forth its intentions regarding plant modifications necessary to bring llumboldt Bay Power Plant, Unit 3, into compliance with current NRC requirements and, if it wished to retain the operating authority provided in Facility Operating License No. DPR-7, a proposed schedule for completing such plant modifications. In response thereto, on August 13, 1981, Licensee filed an affidavit executed by its Senior Vice President for Facilities Development.
According to Licensee, additional studies are necessary to evaluate various alternatives for the plant. These studies include updating Licensee's analysis of those actions which must be taken in order to resume power operation as well as various decommissioning options. Licensee has already embarked upon such a program which should be completed by December 15,1981.110 wever, an additional six months will be required, to reassess the costs associated with various alternatives being evaluated, after the 884 885
Commission determines backfit requirements for older plants such as llumboldt and issues guidance on those requirements.
the results of surveillance efforts in 1980,1981? (Assume n Licensee's response concludes with the statement' that it is extremely change in operational status).
reluctant to abandon a proven source of generation located in a relatively
- 7. What is status of facih.ty, mcluding components and system isolated area within its system and with the assertion that; that are routinely operated; and including location and con "Since the unit, in its present cold shutdown condition, presents ditions of storage of all new, partially used, and spent fuel no risk to the health and safety of the public, PGandE believes What is currently being done to maintain fuel integrity an<
that there is no compelling reason for this Board to issue an Order assure its safety with respect to security, criticality and therma stability?
to Show Cause why the operating authority for liumboldt Bay -
- 8. Describe phys.ical and preventive maintenance being performes l
Unit No. 3 should be revoked. We are convinced that it is beneficial to maintain the plant in an operational status pending a j
decision on NRC backfit requirements and an assessment of their to assure continued integrity of safety related components What is size, makeup (by discipline) and duty cycle of standb l
cffect on the economics of returning the Unit to operation."
C*? What will be required to return facility to operationa 3
~
Before taking further action in this proceeding, the Board would like to.
readm.ess? Is there known deterioration of any components suct have the views of the NRC Staff on Licensee's assertion that the llum-that replacement is contemplated in order to retain adequat<
boldt Bay nuclear plant in its present cold shutdown condition, presents no standby conditions - in order to achieve operational readiness" risk to the health and safety of the public. Specifically, the Staff is lias state of technology advanced to such an extent that any directed to provide answers to the following Board questions:
significant components on instrumentation and control systems will need to be modified to achieve operational readiness?
- 1. What regulatory requirements apply to a plant in cold shut-down mode.
ORDER
- 2. Are applicable regulatory requirements currently being met by it is this 20th day of October 1981 Licensee?
ORDERED
- 3. lias the Staff given consideration to the question of whether the That within thirty (30) days of the date of service of this Order, the NRC staff shall file written resporises to the Board's questions set fortt exceptionally long shutdown of Humboldt Bay Unit No. 3 might give rise to the potential for significant safety problems?
above. Other parties may file their comments regarding questions or the What unusual problems might arise?
Staff's responses thereto within fifteen (15 days) after service of the Staff's responses.
- 4. lias there been any evidence whatsoever of seismic effects within the exclusion area? If so, please describe.
FOR Tile ATOMIC SAFETY AND
- 5. What physical security measures are currently in force? What LICENSING BOARD was date and nature of last change to physical security pro-cedures? What changes are planned between now and end of CY 1982? (Assume no change in operational status).
Robert M. Lazo, Chairman
- 6. What surveillance is being routinely performed by I&E? What ADMINISTRATIVE JUDGE was date and nature of last change in routine surveillance?
What' changes are planned between now ard ad of CY 1982?
What nonroutine surveillance has been m 1ed? What were 886 887
Cite as 14 NRC 888 (1981)
L8P-81-50 confidential if to do so would increase the likelihood of a fair and imparl UNITED STATES OF AMERICA hearing.
NUCLEAR REGULATORY COMMISSION MEMORANDUM AND ORDER j
ATOMIC SAFETY AND LICENSING BOARD ON COEDEEM j
Before Administrative Judge Gary L. Milhollin as Special Master Chairman I. Bac Q M 1
On July 31, 1981, the Office of Inspector and Auditor of the Us In the Matter of Docket No,50 289-SP States Nuclear Regulatory Commission reported that candidates for I (Restart) positions of reactor operator and senior reactor operator at the nucl<
(Reopened Proceeding) power reactor at Three Mile Island, Unit I, cheated on their Ni METROPOLITAN EDISON COMPANY licensing examinations. It also reported that the NRC had failed to proc
~
(Three Mile Island Nuclear Station, the exaniination properly and had failed to detect the cheating wt grading the examination papers. On August I,1981, the NRC's Office Unit 1)
October 22,1981 Inspection and Enforcement filed a similar report, in which two candida admitted in signed statements facts which constitute an admiss:on The Special Master issues a Memorandum and Order ruling that there cheating. As a result of these investigations, the Atomic Safety a is no right, on behalf of the,ndividuals involved in cheating incidents, the i
Licensing Board on September 14, 1981, ordered that the above-entitl Licensee, or the NRC Staff, to prevent the disclosure of the identities of proceeding be reopened to evaluate the effect this cheating might have these mdividuals during the hearing process.
the conclusions the Board reached in its Partial Initial Decision of Augi 27, 1981. The Board also appointed me Special Master under 10 Cl FREEDOM OF INFORNfATION ACT: PRIVATE RIGHT OF ACTION 92.722 (1981) for the purpose of conducting the reopened proceeding.
The purpose of this Memorandum and Order is to decide to what ext <
Under Chrysler Corporation v. Brown. 441 U.S. 281, 60 L.Ed.2d 208, individuals who may have cheated on examinations, or who have been 995 S. Ct.1705 (1979) neither the Privacy Act. 5 U.S.C.1552a (1974) may in the future be accused of cheating, are entitled to have th nor the Freedom of Information Act,5 U.S.C. 9552 (1977) gives a private identities held confidential. The parties to the reopened proceeding h.
individual the right to prevent disclosure of names of individuals where the taken the following positions on this question: the NRC Staff urges il Licensing Board elects to disclose.
confidentiality is required by the NRC's Rules of Practice and by i regulations which implement the Freedom of Information Act; the Int
^**
REGULATIONS: INTERPRETATION that confidentiality is inconsistent with the need to examine and to refer those who cheated in order to discover whether management condoned 10 CFR $2.744 requires a weighing of the need for a proper decision encouraged cheating and to discover how much cheating there was; atD against the interest in privacy where information is eligible for exemption neys for the individuals who were involved in cheating oppo pub from disclosure under 10 CFR 92.790(a) (7).
disclosure on the ground that intense feeling in the community may rs in threats or other harm to the individuals and their families; the Licens LICENSING BOARD (S): AUTilORITY TO REGULATE GPU Nuclear Corporation, takes the position that it has no legal right PROCEEDINGS refuse to identify these individuals by name through the normal process discovery, but suggests a lettering system which, if adopted by the Spec It is within the discretion of the Special Master to hold information Master through exercise of his discretion, could preserve anonymity least until individuals are called to testify; the Commonwealth of Penns I
L vania takes no position of the legality of disclosure, but recommends discretionary use of the Licensee's !cttering system. The pptiefwere given for the reasons stated above, a ruling on confidentiality will now be an opporturisty to make these arguments orally and in writing at a made so that an appeal can be decided before the evidentiary hearing h
begins.
conference among the parties held in Harrisburg, Pennsylvania on October 2,1981. At that time the Special Master ruled from the bench that the Ill. Confidentiality as a masser of right l
Licensce's lettering system should be used to facilitate discovery 'until such A. With respect to the Licensee.
time as a final ruling on confidentiah,ty could be made. (Tr. 23,228.)
a 1
t II.The timing of this deesseen The Licensee now stands ready to disclose to any party m this case the identity of any present or former employee whose name may be linked to i.
As stated above, the parties are now using the lettering system proposed cheating on operator examinations. The Licensee points out that neither by the Licensee. That system consists of replacing, by letters, the names of the Privacy Act nor the Freedom of Information Act (both of which are individual candidates in investigatory reports, examination papers, and discussed below) applies to the Licensee's records. Thus, the Licensee does seating diagrams. The system is working; discovery is proceeding rapidly.
not assert any legal basis for refusing a properly-drawn discovery request i
However, when the evidentiary hearing begins on November 10 it will then which seeks these idemities. The Licensee also states that, in its opinion, be necessary to decide whether confidentiality wi'l be maintained. In-s there are no solid grounds upon which individual employees would bc l
dividual opsrator candidates will be called to testify; they will be asked legally entitled to prevent disclosure by the Licensee. From this it follows about their own conduct, their knowledge of the conduct of other opera-the only way in which the Licensee could refuse to supply the.
that tors, and the conduct of management. That decision will be appealable, identities would be if the Licensee were ordered not to supply them by the first to the Atomic Safety and Licensing Board (Tr. 23.119-120) and then, Special Master. As stated above, the Licensee recommends that the 5
perhaps, to the Atomic Safety and Licensing Appeal Board, and to the Special Master make such an order through the use of his discretion. The Commission. The time required to decide such an appeal would probably Special Master's decision on discretion is set out below.
amount to three or four weeks, at a minimum. Unfortunately, the schedule With respect to the law applicable to the Licensee, there is little doubt for this reopened proceeding cannot accommodate such a delay.
about the soundness of the Licensee's position. Both the Privacy Act, 5 The balance of the Licensing Board's initial decision will be issued in US.C. $552a (1974) and the Freedom of Information Act,5 US.C. 5552 late November ~ (unpublished Licensing Board Order of September 3, (1977), apply to government agencies only, not to the Licensee. Nor does
'1981). If that decision is favorable to restart, the Commission will decide either of these Acts give a private individual the right to prevent dis-i by early January whether to make the decision immediately effective.
closure. Chrysler Corporation v. Brown. 441 US. 281,60 led. 2d 208, Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 99 S.Ct.1705 (1979) (no private right of action where a government
- 1) CLl-81-19,' 14 NRC 304, 305 (August 20, 1981). At that point, agency elects to disclose). The result is that the litigants to this case are however, the Commission will not have a complete record before it fully entitled under the law to obtain the information they seek. In the because the Licensing Board rendered its first Partial Initial Decision absence of the Special Master's discretion, mentioned above, there is no r
(P.I.D.) subject to the outcome of this special prcceeding. P.I.D., August barrier to discovery from the Licensee.
27,1981 at 27. Therefore, in order to provide the Commission with a B. With respect to the NRC Staff.
timely opportunity to rule on a complete record, this proceeding must go forward (and will go forward) on an extraordinarily rapid schedule. As The Staff urges that the identities of the individuals accused of cheating things now stand the evidentiary hearing in this proceeding should bc are not discoverable from the Staff because they fall.within two exceptions completed in November of 1981. Under this schedule the Special Master to 10 CFR 52.790, thr, rule which makes final NRC documents generally could, if necessary, make preliminary report in December or early January available to the public. These exceptions are contained in ll2.790(a)(6) regarding the content of the record. A delay to decide appeals on confiden-and 2.790(a)(7). The first, in $2.?90(a)(6), exempts " personnel and med-tiality would preclude soch a report. Under the present schedule the ical files and similar files, the disclosure of which would constitute a Special Master's final report is due in early January, and the Licensing clearly unwarranted invasion of personal privacy.' This language is the Board's decision on the final report on the first of February,1982, same as that in 10 CFR $9.5(a)(b), which implements the Freedom of Information Act 15 US.C. $552 (1977). The second, in $2.790(a)(7),
4 I
898 891
___-----~~~-~
~
1 exempts " investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would..> constitute an gosernment's power to investigate effectively. If identities of persons men- !
unwarranted invasion of personal privacy.". There is" again, a parallel tioned in raw investigatory data are released, persons could be inhibited provision in 10 CFR $9.5(a)(7), implementing the Freedom of Informationfrom speaking candidly to investigators. This power might well be under-l Act. With respect to 52.790(a)(6), there is considerable doubt whether mined if the same information contained in the government's reports could that exemption is intended to shield the type of information sought herebe obtained directly from the Licensee through routine discovery. Howeve The concern of the exemption, as the Staff points out, is with the " personal.
the fact that Congress did not choose to make the Freedom of Information quality of the information in the file," Wine Hobby U.S.A. v. I.R.S., 502 Act or its exemptions applicable to private entities weakens such an 1
F.2d 133,135 (3d Cir.1974), and with " intimate details of a highly considerably. Further, the NRC staff in this case has not ;
argument
]
_ ersonal nature," German v. N.LR.B., 450 F.2d 670, 675 (D.C. Cir.
p requested that the exemption be extended to the Licensee. Finally, the o
1971). The qualifications of an inoividual reactor operator for his job are-language of $2.744, quoted above, appears to view di: closure of infor,
rather different from that. They are not
- intimate details of a personal mation by the Licensee as a clear alternative to disclosure by the NRC nature," they are objective facts necessary to resolve an issue of central Staff. The result is that no basis appears in law for exter. Jing any of the l'
relevance to the restart proceeding. Those qualifications include, of course, only basis could lie in the Special Master's discretion as discussed below.
concepts peculiar to the Freedom of Information Act to the Licensee. Th the fact of whether the operator cheated on a licer. sing examination With respect to $2.790(a)(7), however, which deals with investigatoryThere remains the question ofinformation which may be available onl reports, it is clear that the exemption applies. The names of the operators from the Staff's investigatory records. In this case, those records contain involved in cheating first appear in NRC investigative reports, so the the id4.ntities of persons who have provided information relative to cheat-policy of protecting the privacy interests of individuals named in these ing. These persons will be called as witnes es. They may give testimo reports is brought squarely into play. In order to decide whether to which describes acts or words which amount to cheating by others, or implement that policy in a particular case, a balancing test is required.10which reflects upon management's possible implication in the cheating.
CFR 52.744 provides that the presiding officer may order production of anSuch testimony is very likely to be contradicted by other testimony. It is (
NRC record exempt under $2.790 if its " disclosure is necessary to a proper obvious that whatever facts emerge from this conflicting testimony will be decision in the proceeding and the document, or the information therein is important to the question of operator competence at TMI.1, and of great not reasonably obtainable from another source...". This balancing test in interest to the community surrounding the reactor. The policy in favor of
$2.744, which weighs the need for a proper decision against the interest inpublic hearings is designed to avoid having testimony such as this received privacy,is similar to that used by the courts in cases under the Freedom of in camera. Absent a far stronger showing in favor of confidentiality than Information Act where this same language is at issue. See Columbia the Staff has made so far, the community's right to have these matters Packing Co., Inc. v. Department of Argriculture. 563 F.2d 495, 498 (1staired publicly means that the balance under 10 CFR 62.744 must be Cir, l'177); Wine Hobby, supra, at 136: German v. N.LR.B., supra at struck in favor of public disclosure. It follows that there is no legal right 674. However, this balancing test is apparently not required under $2.744on the part of the Staff to hold these identities confidential.
if the "information... is... reasonably obtainable from another source. "
j
(
Here, of course, it is " reasonably obtainable" from the Licensee. This C. With respect to rights asserted by private individuals.
would appear to make the above inquiry moot unless the Special Master Counsel for three persons who have been involved in cheating incidents exercises his discretion so as to block the Licensee's disclosure. As in-entered appearances. They argued that their clients' names should be held l
dicated below, this discretion will not be so exercised, at least at this time.confidential. However, they cited no persuasive authority for the pro-The result with respect to the Staff, therefore, is that it is unnecessary to position that their clients had any individual rights against either the Staff decide which way the balance under $2.744 should tip with respect to or the Licensee. Instead, they cited evidence that the intense feeling in the information which is also obtainable from the Licensee.
community, where all the individuals still reside, may result in harm to the Such a result might not be reached if it were decided that the protec-individuals and their families if identities are disclosed. They indicated that tion enjoyed by the Staff's reports should be extended, as a matter of this fact should be taken into account by the Special Master in the policy, to the Licensee. It could be argued that the policy underlying the exercise of his discretion.
exempion for investigatory reports is principally one of preserving the in the recent decision of Chrysler Corporation v. Brown. supra the i
Supreme Court of the United States decided that individuals have no 892 893
private right of action under the Freedom of Information Act to enjoin in pen hearings. At this time it is difficult to predict what, if any, disclosure of documents by a governmental agency. This decision would be i
relevant to a decision to disclose by the NRC Staff. However, in this case arrangements for conMentiahty wM k feasMe. It is, kwever clear mw that testimony by those involved m, cheating, and about those m, volved m, the Licensee stands ready to disclose, and ne authority whatever has been cheatmg, will be of vital importance to issues in the reopened procce cited for the proposition that private indivuuals have a right against the Licensee.
and it is clear that all litigants have the right to participate effectively an exploring this testimony. Any claim of confident:ahty which connicts with; this right must give way. Smce it is not possible now to say with,
IV. Confidentiality as a maatter of discretion c nfidence whether it will eventually be feasible to reconcile confidentia Under 10 CFR $2.718, a presiding officer has all powers necessary to with litigants' rights and the pubhc interest in open hearm, gs, it is im-conduct a fair and impartial hearing. Under 10 CFR 62.722, a Special prudent to exercise discretion to prevent disclosure. This is true even Master must be assumed to have these same powers with respect to those though it still appears that a reasonable accommodation may be possib matters which the Master has been appointed to hear. From this it follows through in camera proceedings and protective orders.
that a Special Master has the power to hold information confidential if to do so would increase the likelihood of a fair and impartial hearing. In this It is the ruling of the Special Master that there is no right, on behalf of V. Ruling j
case, it appears that confidentiality would have that effect to the extent that it increases the likelihood of compiling a full and accurate evidentiary the individuals involsed in cheating incidents, the Licensee, or the NRC '
t record. If such a record were made more likely, for example, because witnesses accused of wrongdoing would be more cooperative under con-Staff, to prevent the disclosure of the identities of these individuals the hearing process.
fidentiality, then it might be proper to exercise discretion to facilitate such cooperation. Also, granting confidentiality might advance the policy under-VI. Effetti,eness of this ruling lying the exemption for investigatory reports, as explained above. However, these benefits of confidentiality may be possible only at the cost of placing This Order refusing to grant confidentiality is immediately appealable practical burdens on other parties, and at the cost of subordinating the to the Atomic Safety and Licensing Board (Tr. 23,120). A party may general policy, contained in 10 CFR 62.751, of having NRC hearings be appeal this Order within seven (7) days after its service by filing a notice public. A weighing of these considerations determines whether discretion of appeal and a supporting brief. Any other party may file a brief in should be exercised, and to what extent.
support of or in opposition to the appeal within seven (7) days after the The information sought from the Staff's investigatory reports can be appeal. During pendency of any appeal, and until further notice, confiden-divided into two types. First is the identity of those who cheated. Second is tiality shall be maintained by use of the lettering systrm, referred to abo the manner in which they cheated, the extent to which they cheated, their or by such other order of the Special Master as shall become nemry.
knowledge of cheating by others, their knowledge of management's attitude IT IS SO ORDERED.
toward cheating, and their knowledge of the extent to which the integrity of the examination process could have been or was in fact compromised by other devices, such as coaching, or knowledge of questions in advance, Gary L Milhollin which would permit an unqualified candidate to become licensed. It is ADMINISTRATIVE JUDGE possible that the second type of information could be explored without Dated at Bethesda, Maryland, going into the first. It is also possible that it could not be. The persons this 22nd day of October,1981.
involved in cheating will be called as witnesses. Other persons called as witnesses will be asked about the persons involved in cheating. Both TMIA and Mr. and Mrs. Aamodt assert that disclosure is necessary. TMIA contends that it wou'Id be confusing, and perhaps impossible, to develop a factual record on the cheating without referring to specific individuals by name during questioning of the witnesses. There is also the public interest 894 E
C.te as 14 NRC 896 (1981)
LBP-81-51 Units I and 2), ALAB-218,8 AEC 79,85 (1974).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ORANDW AW ORDER Denial of Motions to Defer Considerations ATOMIC SAFETY AND LICENSING BOARD of Contentions 22,24 and 25 Before Administrative Judges:
Marshall E. Miller, Chairman b ik h(s Mehg &&r entered M U % an MMan l
Dr. Kenneth A. McCollom hearing on Contentions 9, 22, 24, 25 and Board Question No. 2 was Dr. Richard F. Cole scheduled.a commence December 2,1981. This hearing schedule was confirmed by our duly published Notice of Evidentiary Hearing and I
f in the Matter of Docket Nos. 50 445-OL Prehearing Conference entered September 17, 1981 (46 Fed. Reg.
47033-34).
l W4OL On Oc:ober 19,1981, the Applicants and CASE filed a joint motion to 1
defer consideration of Contention 25, concerning Applicants' financial TEXAS UTILITIES GENERATING COMPANY, et al.
qualifications to operate Comanche Peak. The basis for the motion was the (Comanche Peak Steam Electric Commission's proposed rule concerning requirements for financial Station, Units 1 and 2)
October 23,1981 qualifications review, published in the Federal Register August 18, 1981.'
That notice stated that the Commission was considering amending its The Licensing Board m. an operating license proceeding declines to defer financial qualifications review regulations:
consideration of contentions relating to financial qualifications. Although
"(I) To climinate entirely these requirements for construction per-the Commission is considering adopting a new regulation related to finan-mit applicants; and either cial qualifications review, the notice of proposed rulemaking indicates that only when final is the rule to be applied to ongoing proceedings.
(2)(i) To also eliminate entirely these requirements for operating license applicants; or FINANCIAL QUALIFICATIONS: APPLICABLE STANDARD (2)(ii) To retain these requirements for operating license applicants to tne extent they require submission of information concer.
Although a rulemaking concerning review of financial qualifications is ning the costs of permanently shutting down the facility and pending, hearings on contentions concerning financial qualifications may go maintaining it in a safe condition (i.e., decommissioning forward when the contentions were previously admitted. The intention cf costs)."
the Commission, shown by the notice of proposed rulemaking, is that proceedings with financial qualifications contentions continue. (46 Fed.
The comment period for th.is proposed rule was stated to expire October Reg. 41786.)
19,1981.
This proposed rulemaking results from a directive in Scabrook 2 that the Staff initiate a rulemaking proceeding to reevaluate the financial qualifica-RULES OF PRACTICE: CONTENTIONS tions issue. The Commission thereupon published a Federal Register notice of its proposed study on May 25, 1978, and requested comments from When a contention is admitted before the issue in contention becomes interested persons.' On August 8,1981, the Commission stated in its notice the subject of a general rulemaking by the Commission, the Commission's intention, as st.swn by the notice of proposed rulemaking, determines
' 46 rcI Reg. 4 t 786 91.
whether consideration of that contention should be deferred. Potomac Public Scruce Company of New Hampshire. et al. (Scabrook Station, Units I and 2),
2 Electric Power ' Company (Douglas Point Nuclear Generating Station.
03$,"[y'egj2375.("
8%
897
of proposed rule:
"The Commission has tentatively concluded that the present finan-Rulemaking on the Storage and Disposal of Nuclear Waste, the Commis-cial qualifications review can appropriately be el'iminated forelec-si n explicitly stated that "during this proceeding the issues being con-sidered in the rulerraking should not be addressed in individual licensing tric utility applicants, which can be presumed to be able to meet proceedings the financial demands of constructing and operating nuclear power However, all licensing proceedings now underway will be plants. As an alternative to entirely climinating the present finan-subject to whatever final determinations are reached in this proceeding."'
The instant proposed rule regarding financial qualifications review does cial qualification review, the Commission is considering retaining n t purport presently to bar consideration of these matters in ongoing at least as an interim rule, that portion of the current operating Hcensing board adjudigatory proceedings. The notice of rulemaking states:
license review related to financing the permanent shutdown and maintenance of the facility in a safe condition." (46 Fed. Reg. at If the Commission decides to retain the financial qualifications 41788) requirements relating to decommissioning costs, the rule will serve as an interim rule until completion of a future rulemaking on As the Applicants state, it was held in Douglas Point
- that "the decommissioning that will consider the costs of decommissioning Vermont Yankee line of cases stands for the proposition that licensing and the necessary financial assurances."'
boards should not accept in individual license proceedings contentions The notice further provides:
which are (or are about to become) the subject of general rulemaking by the Commission." However, it should also be observed that Douglas Point refers to the acceptance of contentions by licensing boards. It does not "As an alternative to entirely climinating the present financial necessarily or automatically app!y to contentions or issues which have been qualification review, the Commission is considering retaining, at admitted and remain pending for a long period of time, and which are the least as an interim rule, that portion of the current operating a scheduled evidentiary hearing.
license review related to financing the permanent shutdown and subject of imminent consideration at Under those circumstances, it is necessary to determine the intention of the maintenance of the facility in a safe condition."
Commission itself, which has plenary power over our proceedings.
Fin lly, with regard to the proposed application of the final rule, it was The Appeal Board rurther stad in Douglas Point that regulatory stated that "the Commission notes that the final rule, when effective, will agencies may (and n do) decide so-called generic issues on a case-be applied to ongoing licensing proceedings now pending and to issues or f
by-case basis. The Supreme Court decisions it cited teach that "the choice c ntentions therein."" Unlike Douglas Point and its progeny, the Commis-made between proceeding by general rule or by individual, ad hoc litiga-si n has expressly recognized that there are ongoing proceedings which will tion is one that lies primarily within the informed discretion of the c niinue t have pending issues and contentions relating to financial administrative agency -s The issues involved in Douglas Point and that line of cases' concerned qualifications, which will continue until there is a final rule which, "when the proper evaluation of the environmental consequences of the uranium effective, will be applied" to such ongoing proceedings. Accordingly, there is n fuel cycle. As stated in Shoreham, they involved " matters which the need to defer consideration of Contention 25 and the joint motion of Commission has explicitly reserved for its own consideration in the exer-applicants and CASE will be denied. In view of the pending prehearing nd trial schedule, which is reconfirmed, the movants " request expedited cise of its rulemaking authority " citing 37 Fed. Reg. 24292 and 38 Fed.
treatment of this motion" (page 7). The Board has authority to extend or Reg. 49, 50' (Emphasis supplied). Similarly, in its notice of Proposed shorten time limits for good cause (10 CFR $2.711). Accordingly, the Board considers it appropriate to give the requested expedited treatment
- Potomac Electric Power Company (Douglas Point Nuclear Generating Stati on, Units I and of this motion, and also of two motions to defer filed by CASE on October 2). ALAB-218. 8 AEC 79. 85 (1974).
8 Douglas Point, supra 8 AEC at 84.
17, 1981, discussed below. To that end, all parties and counsel were
ALAB-56. 4 AEC 930 (l972); Long Island Lighting Cornpany (Shoreham Nuclear Power' iu r 6W at 61373 Atow 25, N Station). ALAB-99,6 AEC 53 (1973).
o 76 AEC at 57.
48 M M M86 (August 18, W84 w M 'I n/d.. at 41789.
898 899
notified by telephone this date (October 23, 1981) that the Board had denied all motions to defer.
Cite as 14 NRC 902 (1981)
LBP-81-52 In order to give any party whc so desires an opportunity to state its UNITED STATES OF AMERICA views on these motions, the Board will permit such matters to be brought
^
to its attention by seasonably filed motions for reconsideration which show good cause therefor.
ATOMIC SAFETY AND LICENSING BOARD CASE has filed motions to defer consideration of Contentions 22 and
- 24. These motions are also denied for the reasons discussed above. It is Before Administrative Judges:
important for all contested operating license proceedings to go to eviden-Marshall E. Miller, Chairman tiary hearings promptly and expeditiously. It may be that all of the Dr. Richard F. Cole selected contentions set for hearing on December 2,1981 cannot be fully Dr. A. Dixon Callihan l
completed at that time, but we can certainly start to receive evidence j
thereon. The admitted contentions have been pending since June 16, 1980, in the Matter of Docket Nos. STN S&454-OLA and are well known to all parties. Orders concerning discovery were 50-455-OLA entered by the Board on December 5 and 19,1980, and on April 13 (2),
COMMONWEALTH EDISON COMPANY Af ay 21, July 20, July 22, July 23, July 24, July 28 July 29 (2), July 30 l
(2), August 3. August 4 August 20, August 21 and September 25,1981.
(Byron Station, Units 1 and 2)
October 27,1981 it is high time that this proceeding advance beyond the discovery and motion stage to at least the commencement of an evidentiary hearing. An additional Schedule will be entered shortly, taking cognizance of the issuance of SSER's and establishing discovery and motion deadlines lead-
. In c nsidering the apph. cant's motion for sanctions because of the ing to the commencement of the final evidentiary hearing in mid-February, mterven fs failure r refusal to answer interrogatories, the Board found gggy nothing to excuse or condone the willful failure to provide responsive Tl cre is one final matter to be considered regarding CASE's motion in interr g t ries and the intervenor was consequently dismissed as answers t connection with Contention 24. CASE stated that if its motion to defer is a party.
denied, it "in the alternative moves that the Board grant CASE voluntary withdrawal from Contention 24 (CASE hiotion, pp. 4-5). That motion is RULES OF PRACTICL DISCOVERY (INTERROGATORIES) granted and CASE withdraws from Contention 24. CASE's further mo-tion "that the Board adopt theissues covered by Contention 24 sua sponte,"
is denied. No adequate grounds are shown for such a motion, and none An applicant is entitled to prompt answers to interrogatories inquiring is apparent to the Board.
into the factual bases for contentions and evidentiary support for them, as It is so ORDERED.
intervenors are not permitted to make skeletal contentions and keep the bases for them secret.
L CEN G
RD RM M MAND MMEW (SAMOW The willful failure or refusal of an intervening party to answer interrogatories and its unexcused failure to comply with a Licensing Afarshall E. Afiller, Chairman Board's orders to do so, warrant the imposition of sanctions (10 CFR ADh11NISTRATIVE JUDGE
$ $ 2.707, 2.718, 2.740).
Dated at Bethesda,' Nfaryland this 23rd day of October,1981.
900 901
RULES OF PRACTICE: DISCOVERY (SANCTIONS) tions, any evidentiary support for them, and the identity of witnessesand the substance of their expected testimony.* The use of interrogatories such Where a pirty's derelictions of duty concerning the furnishing of as these has been approved by the Appeal Board as a common and ordered discovery were part of a pattern of behaviour rath'er than isolated reasonable method of discovering the evidentiary and factual bases for incidents, such conduct resulted in the striking of all of its contentions contentions.' This is especially true where intervenors have filed a very (114) and its dismissal as a party (Commission's " Statement of Policy on
.'arge number of contentions.
Conduct of Licensing Proceedings" [CLI-81-8,13 NRC 452,454 '(1981)]).
The Appeal Board in Susquehanna held that "it is not proper for a party to ignore a discovery request,** and quoted with approval the MEMORANDUM AND ORDER Licensing Board's statement that:
"The Applicants in particular carry an unrelieved burden of proof The Commonwealth Edison Company (Applicant) on October 2,1981, in Commission proceedings. Unless they can effectively inquire filed a motion for the entry of an order imposing sanctions on the into the position of the intervenors, discharging that burden may Intervenor Rockford League of Women Voters (League) for its continuing be impossible. To permit a party to make skeletal contentions, failure or refusal to answer interrogatories. A response to this motion was keep the bases for them secret, then reqaire its adversaries to meet filed by the League October 13, 1981. The League also filed a motion for any conceivable thrust at hearing would be patently unfair, and sanctions against the Applicant on the same date. The Applicant's op-inconsistent with a sound record."'
positior. to the latter motion was filed October 22, 1981. The Staff has indicated that it does not intend to take a position with respect to these Answers to the Applicant's interrogatories were due under our rules by motions. For the reasons set forth infra, the Applicant's motion for sanc-July 27,1981 (10 CFR $2.740(b)). No answers were filed by that date, so tions will be granted, and the League's motion will be denied.
on July 30,1981 the Applicant filed a motion to compel discovery by the The League filed its revised contentions on March 10,1980, consisting League. On August 5,1981, the League by one of its attorneys' filed of 146 numbered contentions. Many of these contentions were vigorously objections to these interrogatories, which in substance argued that they opposed by the Applicant and the Staff, but the pleading rules were were " premature" but gave no factual or other bases for the contentions.
liberally construed by the Board and 114 contentions were admitted as On August 7,1981, the League's attorneys filed a response to the Applicant's motion to compel discovery. This response asserted that lead pleading issues.' Ilowever, it was specifically stated that ",0f course, all admitted contentions are subject to motions for summary disposttion after counsel for the League (Myron M. Cherry, Esq.) was engaged full-time, the completion of discovery, if* there is no genuine issue to be heard.'"2 a.interrogatones:
- 1. With respect to each Contention advanced by the League which has And our Order further provided that " discovery shall commence forthwith been admitted by the Atomic Safety and Licensing Board in the above-captioned proceeding.
upon all issues included in the adm.itted contentions.,,3 list the following:
A concise siaiement of the facts supporting each Contention together with references a.
The App!icant served written interrogatories on the League on July 8, to the specific sources and documents and portions thcroof which have been or will 1981. These interrogatories inquired into the factual bases for the conten.
be relied upon to establish such facts; b.
the identity of each person expected to be called as a witness at the hearing;
'he subject matter on which the witness is empccted to testify; c.
d.
the substance of the witness's testimony.
2.
With respect to each witness identified in the Leagac's response to interrogatory I above, identify each document which the witness will rely upon in whole or in part in the preparation of his testimony or in the development of his position.
3.
With respect to each witness identified in the League's response to Interrogatory I 8 Memorandum and Order entered Deceraber 19,1980, LBP.80-30,12 NRC 683.
/ bid, at 696.
above, identify the witness's qualifications to testify on the subject matter on which 2
/ bid., at 698.
the witness will testify.
3 4.
Identify all persons who participated in the preparation of the answers, or any portion thereof, to these Interrogatories."
5 Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc.
(Suwuchanna Steam Electric Station, LJnsts I and 2), ALAB-613,12 NRC 317,333 35,340 (Ibid., at 322.
1980).
' Ibid.. at 338.
- Peter flynn Esq., of the firm of Cherry and Flynn, Chicago, Illinois.
902 903
and his partner (Peter Flynn, Esq.) virtually full-time, in a discovery and The League's prematurity argument and its + Acuses for ignoring inter-pretrial schedule in connection with a preliminary injunction hearing in a rogatories because its attorneys were busy, were dealt witl as follows:
circuit court in Illinois. The League's attorneys also opined that "the great
.The League's objections based largely upon the argument that burden of time and expense entailed in attempting to respond to those the four interrogatories are premature, are denied. While more Interrogatories at this juncture is grossly disproportionate to the mimmal information may be available when the SER is filed, there is benefit (if any) which might be gleaned from responses...." (Response of presently available a large amount of documentary and other League, p. 2). It further stated that counsel should have an opportunity for information. The movant is entitled to full and responsive answers consultation with opposing counsel to resolve differences concermng dis-based upon the presently known status of these matters, and to covery (/d., p. 3).
additional information when it becomes available.
The Board considered the League's objections to these interrogatories, and it entered an Order on August 18,1981 that expressly overruled such "The League's response to the motion to compel discovery is objections, and rejected counsel's excuses for failing to file timely discovery likewise overruled. The involvement of a party's lawyers in litiga-responses.'That Order provided:
tion or other professional business does not excuse noncompliance with nor extend deadlines for compliance with our rules of prac-
~
"It is sufficient for an intervenor at the pleading stage merely to tice. The League's response is also a bit too casual about the state his reasons (l.c., the basis) for contentions, and he is not length of time available for trial preparations leading to the required to plead evidence or to establish that the assertions are commencement of evidentiary hearings. A schedule will be issued well-founded in fact. The Applicant is entitled to obtain discovery soon by the Board. Ilowever, a large number of somewhat com-concerning the bases of these contentions, since a good deal of plex contentions have been filed by the League, and the Applicant information is already available to the League from the FSAR is not required to delay discovery or trial preparation.
and other documents. The League must furnish such information promptly, and it cannot delay until the SER or other documents "The last point relied on by the League's response concerns the are filed. The factual or evidentiary bases for such contentions request for consultation on discovery between or among the par-may in part reDect such later information, but discovery may ties. This request is covered by paragraph I of the discovery ru cs precede such filings, subject to later supplementation..
set forth supra. The parties will be allowed a reasonable period of time to confer. Ilowever, responsive answers shall be filed to these "The origind O% entered December 19, 1980 directed that and other interrogatories promptly, and discovery shall be conduc-discovery should commence immediately upon all issues included ted expeditiously." (Ibid., 373-374).
in the admitted contentions. All parties are directed to proceed expeditiously with iiscovery and other trial preparation."
It was therefore ordered that:
(Footnotes omitted) s.oid., 369-370 "The Applicant's motion to compel discovery by the League.is Our Order of August 18 further stated:
granted, subject to a prompt conference between the parties." (Id.
"To clarify and expedite further discovery in this proceeding, the board adopts the following measures:
Following entry of the Board's specific directives in its Order of August 18, the League neither requested nor furnished any discovery in this
- 1. All parties are directed to confer directly with each other proceeding. liowever, counsel for the Applicant pursuant to our directives regarding alleged deficiencies in discovery before resorting contacted the League's counsel by telephone on August 25, 1981 concer-to motions involving the Board. To this end, voluntary ning interrogatory answers. Similar conversations took place on September discovery and disclosure are highly encouraged. All mo-3, September 10 and September 15, 1981, but no responses to Applicant's tions involving discovery controversies shall describe fully interrogatories were furnished by the League.
the direct efforts of the parties to resolve such disputes Letters from Applicant's counse! to the League's counsel, dated Septem-themselves." (Ibid., 371-372.
ber 4,1981 and September 16, 1981, are attached to this Order marked
'LBP-8130-A,14 NRC 364 (1981).
905 g
Exhibits A and B, respectively, and are incorporated herein by reference.
Board that Mr. Cherry hid been contacted directly regarding the call (Tr.
These letters and the transactions which they rcilect clearly establish that 5-6). Nevertheless, the Board did not go into the merits of the Applicant's the League by its counsel has willfully failed and refused to obey the complaints about the League's failure to answer interrogatories, but direc-Board's Order of August 18,1981. such conduct will not be permitted.
ted that a written motion be filed promptly because the scheduled dates The Board has examined the response filed by the league on October are important in this proceeding (Tr. 23). We add that Mr. Cherry's 13, 1981 to the Applicant's motion for sanctions, together with attached nonparticipation in the conference does not render it ex parte. He apparen-Exhibits A-D. We find nothing in these discursive documents,to excuse or tly had some notice in advance of the call. One party cannot exercise a condone the League's total failure to provide responsive answers to inter-veto by absenting himself from conferences with the Board, whether rogatories. The disputes between counsel concerning depositions and other because he and his office are too busy or for some other reason. No discovery, as shown by the League's Exhibits A, C and D, do not relate to unilateral definition of ex parte encompasses such a result. It is unneces-the instant NRC proceeding. As they show on their face, they involve some sary to comment upon the League's deprecatory language regarding the pending Illinois Commerce Commission proceeding. The Board does not schedule in this proceeding. Such pejorative comments as " hurry up and r
l intend to become involved in some collateral litigation which is not shown wait" (Response, p. 6), or criticizing the November 1,1981 cutoff date for j
to be relevant to this proceeding. As the Exhibits show, copies of the discovery (p. 4, n.1), or false insinuations of "the instability of arbitrary cutoffs applicable in effect only to the Intervenors" (p. 6), do not merit a l
letters reflecting some disputes between counsel were all mailed to "Ms.
Wanda Kamphius, llearing Examiner." None was copied to this Board,,
serious response. The dilatory conduct of the League and its counsel is the issue, and such " red herring " tactics will not obscure that issue from and properly so.
The Leagues response also describes at length the circuit nrt litigation consideration.
referred to supra, as well as the vacations and personal proble ns of some The facts discussed supra establish that the League and its counsel have of counsel's partners. Our Order of August 18,1981 made it ch ar that the deliberately and willfully refused to comply with the Board's Order of involvement of counsel in other litigation or business would not excuse August 18, 1981, and have not answered interrogatories or furnished ioncompliance with our rules of practice. The lengthy period of the ordered discovery for a long period of time. The nature of the pretexts and League's deliberate failure and refusal to obey our orders and provide excuses offered for such noncompliance demonstrate that such conduct is discovery, makes this attempted excuse unacceptable.
not an isolated incident, but rather is part of a pattern of behavior which A large portion of the League's response is d: voted to a wholly ir-seriously impedes our proceedings and impairs the integrity of our orders.
relevant telephone conference held between the Board and all of the parties Sanctions are therefore appropriate both to give all parties due process in except counsel for the League on October 2,1981. At the time the this proceeding, and to deter similar condt.ct by other parties in the future.
conference call was arranged, the Board was informed that Mr. Cherry as The Commission has indicated that the presiding officer has the neces-well as all other counsel or parties had agreed to participate. Mr. Cherry sary authority to " impose appropriate sanctions on all parties who do not now says that " events overtook" him after he or his office was informed fulfill their responsibilities as participants."'2 in a recent policy statement, that a conference call would be made. There was also apparently some the Commission has discussed the spectrum of sanctions available to confusion whether the call referred to Afidland or Byron but in any event counsel's schedule would have prevented his participation. Counsel then objects " strenuously" to a so-called "ex parte" conference call."
This whole prolix objection to the conference call is a nonissue which in no way exculpates the League or its counsel from derelictions of duty concerning discovery. Fortunately, the Board requested that the telephone conference be covered by a court reporter, which was complied with. The transcript of the conference shows that Applicant's counsel informed the
Response of League. Exhibit B (Letter from Mr. Cherry to the Chairman of the Board, dated October 5.1981).
i2 Commission's Statement of Consideration. 37 Fed. Reg.15l27-28 (July 28.1972).
'Id.
l 906 907
licensing boards to assist in the management of proceedings, including the dismissal of a party." Unjustified refusals or failures to comply with ISHAM, LINCOLN & BEALE discovery orders have resulted in the dismissal cf parti,es or' contentions.
COUNSELORS AT LAW Under all of the circumstances shown in this proceeding, the Board finds WASHINGTON OFFICE that the League should have all of its contentions stricken, and it should be 1120 CONNECTICUT AVENUE, N.W.
dismissed as an Intervening party (10 CFR $$2.707,2.718,2.7,40).
SUITE 325 The motion for sanctions filed by the Lea 6ue on October 13,1981, is WASHINGTON, D.C. 20036 devoid of merit and borders on the frivolous. Such motion will be denied.
202-833 9730 September 4,1981 ORDER t
BY MESSENGER l
For all the foregoing reasons and based upon a consideration of the entire record, it is this 27th day of October,1981 Peter Flynn, Esq.
ORDERED Cherry & Flynn (1) That the Applicant's motion for sanctions is granted, and the One IBM Plaza Intervenor Rockford League of Women Voters is dismissed as a party.
Suite 4501 (2) The Rockford League of Women Voter's motion for sanctions Chicago, Illinois 60611 against the Applicant is denied.
Re:
In the matter ofCommonwealth Edison Company (Byron Station, FOR THE ATOMIC SAFETY AND Units I and 2), Docket Nos. STN 50-454-OL, STN 50-455-OL LICENSING BOARD
Dear Mr. Flynn:
On August 25, we spoke briefly with regard to the Licensing Board's Marshall E. Miller, Chairman order of August 18 requesting that the parties discuss the League's ADMINISTRATIVE JUDGE fc5Ponse to Commonwealth Edison Company's interrogatories. At the time, you indicated that you were reviewing the League's contentions for pur-poses of determining in what time period you expected to be in a position to answer the interrogatories. You also stated you would advise me before the end of the week, that is, before August 28, as to an expected date for your responses. At the time, I suggested the possibility of some con-solidation of contentions, inasmuch as the contentions now admitted by the Board contain a significant level of duplication and overlap. Yesterday, we
'3 " Statement of Policy on Conduct of Licensing Proceedings", May 20,1981 CLI-81-8,13 spoke again to discuss discovery. You indicated that your review of the NRC 452.
Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Su-contentions still continues and you are not yet in a position to state when squehanna Steam Electric Stauon. Units I and 2), ALAB-613,12 NRC 317, 322, 339 answers to imerrogatories can be expected. You also indicated that you (1980). See Metropolitan Edison Company (Three Mile Island Station, Unit No.1), LBP.
Northern States Power Company, et al. (Tyron Energy Park, agreed w. h me that some consolidation of issues might be possible.1 it I 17. Il NRC 893 (1980);
Unit 1) LBP-77-37, 5 NRC 1298,1301 (1977); Offshore Power Systems (Manufacturing inasmuch as we are meeting on Thursday, September 10, to resolve License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813. 817 (1975); Public discovery differences in a parallel case now pending before the Illinois Service Electric & Gas Company (Atlantic Nuclear Generating Station, Units I and 2),
Commerce Comm..
Hockey Club,427 U.S. 639,640 (1976); See also National Hockey League v. Metropolitan ission, it was agreed we would raise the question of )
LBP-75-62, 2 NRC 702, 705-6 (1975).
Kelley v. United States 338 F.2d 328 (1st Cir.1964).Mertens v. Hummel,587 F.2d 862 (7th Cir.1978);
responses to discovery in the NRC licensing case at the same time.
I would hope that by the September 10 meeting you will have made l some progress toward responding to our interrogatories, as you have now had them since July 8,1981. I enclose herewith a proposed method of 908 909
consolidating contentions. I would ask that you review these to the extent September 16,1981
~ hat time permits and be prepared, if possibic, to discuss the enclosed t
Proposal at our meeting on September 10.
Mr. Myron Cherry Cherry & Flynn Sincerely' One IBM Plaza PMM/js Suite 4501 Chicago, Illinois 60611 Paul M. Murphy Re:
Enclosure Commonwealth Edison Company (Byron Station, Units I and 2)
One of the Attorneys for Docket Nos. 50-454 and 50-455 Commonwealth Edison Company cc: Steven C. Goldberg, Esq.
Dear Mr. Cherry:
This is to confirm our conversation of yesterday regarding.pending discovery initiated by Commonwealth Edison Company and directed at the Rockford League of Women Voters and at DAARE/ SAFE. As you recall, on July 8,1981, Edison directed interrogatories to be answered by the League and by DAARE/ SAFE. On August 18,1981, the Licensing Board entered an Order directing DAARE/ SAFE to answer the interrogatories forthwith, and directing Edison and ~ the League to consult regarding responses to discovery.
I spoke to your partner on August 25 and September 3, and with you on September 10th and yesterday in an effort to obtain a date certain for answers to our interrogatories, as there did not appear to be any other matter to discuss in view of the Board's overruling your objections. Yester-day you agreed to provide answers on behalf of the League and on behalf of DAARE/ SAFE by October I,1981. This date is by no means satisfac-tory, given that the interrogatories were served on you on July 8,1981, and that the Licensing Board overruled your objections to the inter-rogatories on August 18, 1981. However, in view of your representation made on September 10,1981 that as of that date nothing had been done towards answering the interrogatories, it does not now seem that an earlier date is achievable. We look forward to receipt of answers on behalf of the League and DAARE/ SAFE by October I,1981.
Sincerely, Paul M. Murphy 4
Attorneys for Commonwealth Edison Company
~
PMM/msb cc: Entire Service List 910 911
Cite as 14 NRC 912 (1981)
LBP-81-53 UNITED STATES OF AMERICA
~
ORDER (Reflecting Actions Taken NUCLEAR REGULATORY COMMISSION at Prehearing Conference)
ATOMIC SAFETY AND LICENSING BOARD A special prehearing conference pursuant to 10 CFR 2.751a was held at Before Administrative Judges:
the Rock Island County Office Building in Rock Island, Illinois, on James L Kelley, Chairman October 14, 1981. Representatives of the Applicant, the NRC Staff, and Dr. Peter A. Morris e ch of the organizations petitioning to intervene in this proceeding were Dr. Richard F. Foster Present and participated. This Order reflects the major matters discussed and actions taken at the Conference.
In the Matter of Admission of Petitioning Organizations as Parties. Timely petitions to Docket Nos. 50-254-OLA intervene were filed by Citizens for Safe Energy ("CSE") and Quad-City SO-265-OLA Alliance for Safe Energy and Survival ("QASES"). Subsequent discussions COMMONWEALTH EDISON COMPANY am ng the petitioners, the Applicant and the NRC Staff resoived some (Quad Cities Station, Units 1 and 2) imtial questions from the Applicant abrut standing, and a hst of agreed-October 27,1981 upon contentions was developed. Our independent application of the The Licensing Board held a prehearing conference and admitted as standing-plus-one-valid-contention test satisfies us that the petitions for r les tw titiomng organizations who satisfied the Commission's stan-intervention of these two organizations should be granted. CSE and g an contention requirements m, this spent fuel pool expansion QASES are admitted as parties. We will refer to them collectively as "the intervenors "
rej c ed o ther uted n ent o s-A'
'8*"
"I
- ' ^ * * **"' ' ' "'IY 8 I*
^
also petitioned for leave to intervene. However, the areas of interest indicated in their petition were too vague to qualify as contentions. Al-NEPA: CONSIDERATION OF ALTERNATIVES though reminded in our notice of the prehearing conference of their right to file further contentions, they chose not to do so. They were represented A Licensing Board has no objection to explore alternatives under NEPA at the prehearing conference by Mr. Jack Smith, their Director, who except upon a showing that the action in question will constitute a " major indicated that OAER was no longer interested in participating as a party Commission action significantly affecting the quality of the human in this case. Tr.14. The Chairman informed Mr. Smith that, under the environment." This determination should not be made until the NRC circumstances, he could choose to withdraw the OAER petition, or the Stiff's environmental impact assessment is available.
Board would deny it. Mr. Smith indicated his preference for a Board denial. Tr.16. The OAER petition is denied.
FINANCIAL QUALIFICATIONS: OPERATING LICENSE AMENDMENTS c ntenti ns - set forth in Appendix A to their joint " Stipulation of Issue and Contentions" of October 2,1981 "should be admitted for con-sideration as matters in controversy." Our independent review of th :se:
Applicant for operating license amendments, such as an amendment proposed contentions leads us to agree that these contentions should be authonzmg expansion of a spent fuel pool, are not required to prove their admitted. Their admission is, of course, without prejudice to the possibility fin:ncial abihty to implement the amendment.
that one or more of them may later prove to be fit candidates for summary disposition under 10 CFR 2.749.
Disputed Contentions. The Intervenors' propose three additional conten-tions which the Applicant and the Staff opposc. Each contention and our ruling on its admissibility are set forth below.
912 WD
f Contention 2: The Licensees have not considered in sufficient detail the
~
showing of impact. In addition, we do not >ct have the Staffs environmen-possible alternatives to the proposed expansion of spent fuel. storage capac-tal analysis; Staff counsel stated that an environmental impact appraisal ity. Specifically, Licensees have not considered preferable alternatives for (EIA) will be prepared, but it apparently will not be available for some managing the spent fuel during the remainder of the operating license for the Quad Cities Nuclear Station, namely, the possibilities of:
months. Tr. 29. In these circumstances, Big Rock Point provides explicit direction that the Board should;
- a. shutting down the Quad Cities Nuclear Station once the racks await the preparation of the staffs environmental analysis. Itis presently installed in spent fuel pools are full, or unwise, if not improper, to decide without the record support
- b. reducing electrical output from the Quad Cities Nuclear Station provided by the staffs environmental review, whether a given in conjunction with either energy conservation and pricing alter-natives which would reduce demand or increasing the use of action significantly affects the environment. Id.. pp. 35-36.
Accordingly, we are deferring our ruling on proposed Contention 2 until underutilized fossil fuel plants to meet current demand.
after the Staffs EIA is available. At that time, if the Intervenors wish to Ruhng. Th s Board is not responsible for considering broad energy pursue this contention (or perhaps a contention revised in light of the i
alternatives in the abstract. Our job is to apply the Commission's rules and EIA), we will hear further argument and issue any necessary rulings.
federal statutes applicable to the comparatively narrow proposition before Contention 7: The Licensees should be required to submit cost evaluations us - whether the Applicant should be allowed to expand the capacity of for handling, transportation and storage of the additional fuel which will the spent fuel pool at the Quad Cities facility.
be stored in the proposed racks for the remainder of the operating licenses in that context, any responsibility of ours to explore the alternatives for the Quad Cities Nuclear Station.
outlined in this contention must flow from the National Environmental Policy Act ("NEPA") and implementing Commission regulations (10 CFR Ruling.This contention ;s disallowed. The financial qualifications of an Part SI) which do require consideration of reasonably availabic alternatives applicant for a reactor construction permit are subject to scrutiny. See 10 through the vehicle of an environmental impact statement.' However, that CFR Part 50, Appendix C. However, no comparable requirement applies requirement is only triggered where the action proposed will constitute a to an applicant for an amendment of the kind sought here. Consumers
" major Commission action significantly affecting the quality of the human P wer Co. (Big Rock Point Nuclear Plant) 11 NRC 117,127 (1980).
environment." 10 CFR 51.5(a)(II).
This contention might possibly be viewed as something other than a in a number of recent cases, intervenors have argued that proposed
" fin nci i qualifications" contention. Thus, the costs of the proposed expansions of particular spent fuel pools would have a "significant effect" m difications might become relevant if we eventually become involved in a on the environment, thus requiring an environmental impact statement.
c mparison of alternatives. Ilowever, as explained above, that would only See, e.g., Public Service Electric and Gas Co. (Salem Nuclear Generating happen upon a determination of significant environmental impact. Should Station), ALAB-650 (1981); Consumers Power Co. (Big Rock Point)*
such a determination be made following receipt of the Staffs EIA, conten-ALAB-636 (1981); Portland General Electric Co. (Trojan Nuclear Plant) ti ns b sed upon it should be drafted on the basis of the record as then 9 NRC 263 (1979); Northern States Power Co. (Prairie Island Nuclear developed.
Generation Plant), 7 NRC 41 (1978).2 In none of these cases was the At the prehearing conference, the Intervenors sought to link this conten-requisite effect on the environment shown to exist. Nevertheless, the tion with " substantial hidden subsidies to the nuclear power industry and Appeal Board made it clear in Big Rock Point that, unless and until some with the availability of other storage techniques, such as a new storage generic determination can be made, these determinations must be made on p
1, dry caisson storage, or air-cooled storage racks. Tr. 35-38. In the first a case-by-case basis. ALAB-636, slip op., p. 36, note 35.
place, the contentions as drafted would have to be stretched considerably in the present case,, however, we do not have an explicit allegation of t reach these topics. Even assuming that could be done, some health or significant impact on the environment, let alone a substantial record safety relationship between these topics and the proposed modification would have to be established.
We fail to see how this could be done with respect to the " hidden s arrlo $ ate piIo"r thS$iIions s a a$c io ihe l"'['
subsidies" question. The costs and policy soundness of such things as the ca i c
914 915
Price-Anderson Act, decommissioning, and federal energy,research prog-ments are complete and served on the parties, it will be time to consider rams are for the Congress, the Commission and State 'public utility dates for closing discovery and beginning a hearing. In the meantime, i
commissions, not this Licensing Board, should any party believe that some action by the Board is necessary, they As to the other proposed forms of storage, their availability could are, of course, free to file an appropriate motion. The device of a telephonc i
become relevant in this case should it appear that the Applicant's rerac-conference is also available.
king proposal is not acceptably safe. But if the requisite safety showing is-made, an applicant is free to choose among acceptable alternative ap-FOR THE ATOMIC SAFETY AND proaches.
LICENSING BOARD Contention 12: The proposed racks, as well as the Quad Cities Nuc! car Station, are not adequately designed to withstand earthquakes because the i
Safe Shutdown Earthquake (SSE) and the Operating Basis Earthquake peter A. Morris (OBE) which were estabished for the Quad Cities Nuclear Station are no ADMINISTRATIVE JUDGE longer appropriate in light of new information about possible carthquakes in the Quad Cities Area. Some carthquake scientists at the St. Louis '
Richard F. Foster University and the Midwest Research Institute feel that the Mississippi ADMINISTRATIVE JUDGE Valley is ripe for a major carthquake.
Ruling. This contention is disallowed. The NRC rule governing conten.
tions,10 CFR 2.714(b), requires that a petition include "... the bases for James L. Kelley, Chairman cach contention set fc i with reasonable specificity" " Bases" does not ADMINISTRATIVE JUDGE mean evidentiary proof, which is produced at the hearing. But it does Dated at Bethesda, Maryland contemplate a clear articulation of the theory of the contention, sufficient this 27th day of October,1981 that the Applicant can make an intelligent response.
Earthquakes do not occur just anywhere; they occur only on active faults. It would probably be sufficient, for example, if a contention stated that the previously established safe shutdown earthquake for Quad Cities was inadequate because new information would show that an earthquake of greater magnitude was now expected on a particular fault. Or a somewhat more general formulation might suffice. But this contention merely refers, without any specificity, to "new information about possible carthquakes in the Quad Cities Area." That is not sufficiently specific.
Discovery, The various discovery techniques (see 10 CFR 2.740) are i
now available to the parties. Discovery shall be limited at this time, as the rule provides, to those contentions that have been admitted by the Board
- i.e., the Appendix A contentions of the joint stipulation. The Board encourages the parties to engage in informal discovery, to show some restraint in the number of interrogatories, to forego hypertechnical objec-tions to discovery, and to attempt to negotiate and resolve differences before bringing them to the Board.
Further Actions. It is not now possible to schedule any future actions.
The Applicant has not completed its application and until that is done the Staff cannot complete its safety evaluation and EIA. When those docu-986 987
Cite as 14 NRC 918 (1981)
LBP-81-54 Board. Cf 10 C.F.R. 32.717(b).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OPERATING LICENSE IIEARING: SUA SNNTE ISSUES ATOMIC SAFETY AND LICENSING BOARD
%. hen a Licensing Board iri an operating license proceedmg considers Before Administrative Judges:
issues which might be deemed to be raised sua sponte by the Board, it Charles Bechhoefer, Chairman
- ". I #
Dr. James C. Lamb Mr. Ernest E. H6fl in the Matter of MEMORANDUM AND ORDER Docket No. STN 50-498 OL (Scheduling Prehearing Conference and Evidentiary STN 50-499 OL (Operating License)
Hearing on Transition Period Construction Activities)
HOUSTON LIGHTING AND POWER By letter dated October 16,1981, from the Executive Vice President of COMPANY, of al.
llouston Lighting and Power Co. to the Director, Region IV, NRC, the (South Texas Project Units 1 and 2)
Applicants requested NRC Staff concurrence in a plan for continuing October 30,1981 safety-related work during the transition period in which certain of the The Licensing Board schedules an evidentiary hearing to consider the project's engineering and construction management responsibilitiesare to be means by which the Applicants plan to maintain quality with respect to shifted from Brown & Root, Inc. (B&R) to Bechtel Corp.' The Board had certain near-term safety-related construction activities, in light of (1) the been preliminarily advised of the proposed organizational changes by the Applicants' letter of September 24,1981. In a telephone conference call on transition of design-engineering and construction-management responsibilit.
ies, and possibly construction responsibilities, to e new contractor; and (2)
Octob.r 7,1981, however, the Board also was apprised that the extent of the innsition from B&R to Bechtel had not been determined. Specifically, deficiencies m engineering pointed out in an independent consultant's we were informed that it was possible that construction as well as design report sponsored by the Applicants. The Board also inquires concerning the engineering and construction management responsibilities would also be means by which the NRC Staff plans to monitor the Applicants' commit.
transferred from B&R to Bechtel. See Memorandum and Order ments to maintain quality in regard to the specified construction activities.
(Concerning Changes in Schedule for IIcarings), dated October 8,1981, at The Board further schedules a prehearing conference.
- p. 2. Ace Jing to the October 16,1981 letter, the transition period during which the specified safety cctivities are to be undertaken will extend for LICENSING BOARDS:
JURISDICTION about 4 months. Depending upon the timing of NRC Staff review of the transition period activities, those activities could be completed as early as T e decision whether to approve a plan for construction during the n
certain design engineering and construction management
- The decis on whether to approve the plan for transition period construc-tion activities, as requested in the Applicants' letter of October 16,1981, is contr or to a ot er i initia i thi the prov e of the 1 Staf.
initially within the province of the NRC Staff. But because of the safety because of the safety significance of the work to be performed, and its clear bearing on whetber, or on what terms, a project should be licensed, and on the resolution of certain existing contentions, consideration of the
' ^ cop) of this iciter as served on the Licensins Board and parties to this proceeding. As adequacy of, and controls to be exercised by, the Applicants and NRC used in this Memoranduni and order, iraniti n peri d refen t t e pen u a =ha de Staff over such work falls well within the jurisdiction of the Licensing work stems spelled out in the attachments to the October 16 letter are to be carried out and is not intended to encompass the possibly dirreren time penod in which the entire transition from B&R to Bechtelis to occur.
91g 919
significance of the work to be performed, the adequacy of the plan for performing this work has a clear bearing on whether, or on what terms the South Texas Project should be licensed. Cf.10 C.F.R.'92 717(b) The to Attachment A suggests that six work items do not conform to adequacy of that plan also may have a significant impact on the resolution criterion 2. In additicn, based on issues raised in this proceedm, g of some of the contentions and other issues which are now before this and still not resolved, several work items appear not to conform Board.
with criterion 1; For example, transition work is to be performed in particular areas with
~
- 6. the possible safety significance of transition werk designated a non. safety-related (Attachment B to October 16, 1981 letter). In respect to which testimony has already been presented in this proceeding, such as containment dome concrete, containment shell concrete, and cer.
that connection, see Quadrex report: Section 3.1(d), vol.1, pp. 3 5 tain ASME and AWS welds. These items, among others, were the subject and 3-6; of comments and criticism in the report prepared by Quadrex Corporation
- 7. the degree to which the quality of safety-related work to be performed during the transition period can later be verified; and
(" Design Review of Brown and Root Engineering Work for the South Texas Project," May,1981), transmitted to the Board on September 28*
- 8. the relative safety implications of (a) stopping all safety-related 1981.
work and work which might affect safety-related structures or Because of the safety significance on the transition work and the equipment; (b) continuation of only such transition work outlined in the letter dated October 16,1981 as had already been cornmen, probability that it will have a bearing on the findings and conclusions we must reach in this operating license proceeding, we wish to be apprised of ced as of that date; or (c) continuation of work as proposed in the October 16,1981 letter.
the means by which the Applicants (including their contractors Bechtel at:d, if applicable, B&R) plan to maintain quality with respect to the in posing these areas of inquiry for the short term, we wish to stress that construction of safety-related structures and equipment durin3 the tran-we are concerned about the procedures to be followed by the Applicants sition period, and the means by which the NRC Staff plans to monitor the and Staff to assure the quality of work on items described in the October Applicants' commitments in this regard. Specifically, we call upon the 16 letter.
Applicants and/or Staff, as appropriate, and other parties if they wish, to For such advice to be meaningful, it must be provided to us at an early address the following subjects:
date and, in any event, prior to the expiration of the transition period. We therefore are scheduling an evidentiary hearing to commence on Tuesday.
- 1. the general responsibih.. ties during the transition pHod of HL&P.
December 8,1981, in Austin, Texas, to consider these questions. We Bechtel and B&R with respect to the safety-related work specified expect the hearing to conclude no later than Thursday, December 10, m the October 16 letter; 1981, and earlier if possibic.
- 2. the problem of assuring that adequate and competent construction To help meet this schedule, we invite (although we do not require) the and QA/QC personnel remain on the job or are brought to the job parties (particularly the Applicants and Staff) to provide prepared (as applicable) during the transition period; testimony, which must be in our hands no later than Wednesday, Novem-
- 3. the morale during the transition period of QA and QC personnel ber 25,1981. Discovery on the limiter' hsues involving construction during now employed by B&R, assuming either partial or full replace-the transition period (which do not encompass the entire Quadrex report) may begin immediately and shall conclude no later than November 18,
- 4. the likelihood that problems related to safety and licenscability 1981. If interrogatories are used, they should be filed by November 6, pomted out by the Quadrex report would (if they exist and to the 1981 and served either by personal service or by express mail. Responses extent they might affect transition-period construction as specified must also be served in this fashion. We do not anticipate providing an m the October 16 letter) be continued or even exacerbated during opportunity in the short term for written proposed findings of fact and the transition period; conclusions of law on transition-period construction, but we will accept oral
- 5. the conformance of the items of safety-related transition period statements of the parties' positions at the conclusion of the evidentiary construction activities (Attachment A to October 16,1981 lettu) sessions on this subject.2 To the extent that the prehearing conference to the criteria, for performing transition period construction set referred to in cur Memorandum and Order of October 8,1981 is needed, forth m the body of the October 16 letter. In particular, footnote 1 it will be held on December 8, immediately prior to this hearing.
2 We mill establish time limits far such statements after we ascertain the general positions to be taker. by various part es during the evident ary presentations.
920
The issues of what safety-related work should be continued during the June 30,1981 (subject: " Raising of issues Sua Sponte in Adjudicatory transition period and the controls (if any) which NRC may exercise over Proceedings").*
such work are being considered by the Licensing Board because of the For the foregoing reasons, it is, this 30th day of October,1981 important safety significance of the questions, their bearing on the ad-ORDERED equacy of construction of the facility, and the possibility that the quality of
- 1. That an evidentiary hearing to consider the questions outh.ned et least some of the safety-related work may not be able to be adequately herein will convene on December 8,1981, in Austin, Texas, at Austin verified after construction has been completed. Although these issues might
~
Public Library Auditorium, Fourth Floor, 800 Guadalupe, Austin, Texas be viewed as being raised by the Board sua sponte, their resolution is 78701. The hearing will commence at 9:30 a.m. or, if a prehearing essential to provide an adequate record for us to rule on the broader QA conference is held, immediately following the prehearing conference. (On matters which are before us. We are raising these questions solely in the
- 2. That discovery on these questions may commence immediately and context of our operating license authority, as enhanced by the Commis-December 8 and 9, the hearing will commence at 9:15 a.m.)
sion's broad instructions to us in CLI-80-32,12 NRC 281 (1980), which shall conclude by November 18, 1981, and that interrogatories (if used) pointed out that this operating license hearing could serve the goal of a are to be governed by the standards set forth in this opimon.
' full airing of all relevant information regarding the safety of the nuclear
- 3. That prepared testimony, if it is to be filed, shall be delivered to
~
iT ant". Id. at 290. In the Board's view, the adequacy of, and controls to be the Board by November 25,1981.
exercised over, safety-related transition work falls well within that grant of
- 4. That a prehearing conference, to the extent necessary, will be held authority. In raising these issues, however, we recognize that the halt of immediately prior to the evidentiary hearing, at 9:30 a.m. on December 8, some or all safety-related work during the transition period is a possible 19g1.
outcome and that there is some question of whether we possess stop-work authority. If we were to determine that a work stoppage in whole or in Tile ATOMIC SAFETY AND part were necessary, we would consider various means of effectuating that LICENSING BOARD determination, including certification to the Commission.2 Because this Memorandum and Order raises issues which might be deemed to be raised sua sponte by the Board, we are transmitting copics Ernest E. ilill to the Commission and to the General Counsel, in accordance with the ADMINISTRATIVE JUDGE Commission's instructions appearing in the Secretary's memorandum of Dr. James C. Lamb ADMINISTRATIVE JUDGE Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE issued at Bethesda, Maryland.
3 On October 29. 1981, we received copies of a CEU Petition to Suspend Construction
- In relevant pan, that Menwandum provides: -When a Licensing Board * *
- raises an to the Commission) and a CEU Motion to Suspend Construction (directed to inis issue sua spunte in an Operatmg License proceeding, it shall suue a separate order making t
d the panies by telephone on October 29 this Memorandum and the requmte findings, bric0) state its reason for raisms the assue; and it shall forward a copy Order. which encompanes some of the matters raised by CEU. has been under preparation of that order to the Office of the General Counsel and to the Cornmission * * '.
hen we received the Applicants' October 16 letter, and in no way has lTjhc Boards shall continue to make the inital determination of whether a Board question is en in uenced by or is inten4cd to respond to either of CEU's filings.
an cuercise of sua spewe authority or a question asked to ensure the completeness of the record on an admitted contention. Furthermore, the fact that an inue has been raised sua spunic. and that the Commission will be advised of that action by the Office of the General Counsel through its monitonng of adjudicatory proceedings, would not provide a basis for any party to fail to meet its obligation to respond expeditiously to the Board's questions."
922 923
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f Cite as 14 NRC 925 (1981)
DD-81-18 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Harold R. Denton, Drector in the Matter of Docket Nos. 50 548 50 547 (10 C.F.R. 2.208)
WABASH VALLEY POWER ASSOCIATION and PUBLIC SERVICE COMPANY OF INDIANA (Marble Hill Nuclear Generating Station, Units 1 & 2)
October 13,1981 The Director of Nuclear Reactor Regulation denies a petition under 10 C.F.R. 2.206 which requested action against a co-owner of the Marble Hill project for securing additional financing for its participation in the project in an allegedly improper manner.
NRC:
JURISDICTION.
Although decisions of other agencies may be relevant to the administration of the NRC's regulatory program, the Director of NRR will not institute proceedings to determine whether other agencies have carried out their own unique responsibilities.
E o
925
LICENSE CONDITIONS assistance to WVPA to continue its participation in the Marble liill project and to purchase a certain transmission line. The notice states that in the absence of a transfer of ownership or exercise.of certain the finding was made in accordance with the REA's procedures.
la its petition, Save the Valley complains that the WVPA failed to creditors' rights, the N.R.C.'s authorization need not be obtained in connection with financing arrangements a licensee may make with n tify "the parties of record" in the proceedings on the Marble 11ill financial institutions.
permits that the WVPA had sequested additional loan guarantees. Save the Valley contends that the WVPA's request, coupled with its approval by RUI.ES OF PRACTICE: RESPONSIBILITIES OF PARTIES.
' the REA, constitutes an unlawful amendment of the construction permits.
This " amendment". Save the Valley argues, was made without notice and When a licensing proceeding has been concluded and a matter is no opportunity to be heard in contravention of Sholly v. NRC. No. 80-1656 longer before a board, a licensee does not have a general duty to inform (D.C. Cir. Nov. 19, 1980). On this basis, Save the Valley would have the parties to the concluded proceeding of new information or developments Commission institute a proceeding to inquire into the WVPA's actions and, regarding matters that were adjudicated in the proceeding.
presumably, to take some sort of enforcement action against the WVPA.
Save the Valley's petition is wholly without merit. The petitioner's RULES OF PRACTICE: PETITIONS UNDER 10 C.F.R. 2.206.
arguments reflect a misunderstanding of the jurisdictional responsibilities A petition under 10 C.F.R. 2.206 must allege facts that would indicate
"* *' #8 *D
'*E"'*
'#N " * * * " '
governing the Marble 11ill permits. In the 'irst instance, this Commissgn further inquiry into a matter raised in the petition is warranted.
does not sit as a body to review decisions of the REA on matters within the REA's jurisdiction. If Save the Valley believes that the REA acted DIRECTOR'S DECISION improperly m extending financing assistance to the WVPA and in finding UNDER 10 C.F.R. 2.206 that such action would have no significant impact, then Save the Valley On September 8,1981, Thomas M. Datillo, counsel for Save the Valley, sh uld pursue whatever remedies are available before the REA or in the submitted a petition to the Commissioners and the Director of NRR which l
federal courts. While the decisions of sister agencies may be relevant to the administration of the Nuclear Regulatory Commission's regulatory prog-requested institution of a proceeding with respect to the construction i
permits for the Marble flill Nuclear Generating Station. Save the Valley j
r m. I will not institute proceedings to determine whether other agencies alleges that the Rural Electrification Administration's recent extension of l
have carried out their own unique responsibilities.'
Neither the WVPA's nor the REA's actions constitute an " amendment" financing assistance to the Wabash Valley Power Association (WVPA) i constituted an illegal amendment of the MarHe flill construction permits.
l f the Marble Ifill construction permits. No condition of the permits or of the Commission's regulations require the WVPA to seek the NRC's Save the Valley's petition has been referred to the Director of NRR for l
consideration under 10 C.F.R. 2.206.
permission before the WVPA obtains additional financing assistance to The WVPA, an association of 24 rural electric cooperatives, has a 17%
support its existing share of the Marble 11ill project.' Except in instances ownership interest in the Marble liill project. Both the WVPA and the inv Iving a transfer of ownership of an existing interest in a license or the lead applicant, Public Service Company of Indiana, were found financially qualified under 10 C.F.R. 50.33(f) before the construction permits for the Cf. Public Scrwe Co of New flampshire (seabrook station. Units 1 & 2), CLI.78.i. 7 3
NRC I,23 24 (1978) (NRC bound to accept EPA's prescription of cooling mystem); florida Marble flill project were issued.' The WVPA's financing of its ownership fy,,, a tj,3, Co. (St. Lucie Plant. Unit 2), DD-8I.15,13 NRC 589, (Docket No. 50-389 interest is based on long-term debt guaranteed by the Rural Electnlication August 7,1981) (Director wiii defer to FERC's interpretation of its regulations and Administration (REA).2 On June 8,1981, the REA published a notice in sovernin8 statutet it is worth noting that section 271 of the Atomic Energy Act. 42 US C.
the Federal Register (46 Fed. Reg. 31451) that it had prepared a 2018. pr vides N thins in this Act shall be construed to affect the authority of any Frder,1,
" Finding of No Significant impact" in connection with proposed financing D,'c$ Ng'h i7,*,N,$c$,'t.ci$*tif,$nNb IIe C 8*
iss Save the Valley indicates that the WVPA sought additional loan guarantees "to maintain its 171 undivided ownership in the plant". Petition at 2. Of course,17% is the WVPA's existsat
' rub /ic Service Co. of India et al. (Marble Hill Nuclear Generating Station Units I &
2). LBP-77-67. 6 NRC 1801,1115-16 (1977). LBP-78-12. 7 NRC 573. 576-77 (l'978), affd.
share in the project See LBP 77-67, supra. 6 NRC at 1115. Thus, the petition does not ALAB-493. 8 NRC 253 (1978).
allege that there has been a transfer of ownership which would require the Commission s Sec LBP-77-67, supra. 6 NRC at 1815.
approsal. See Atomic Energy Act i 184,42 U.S.C. 2234, lo C.F.R. 50.8o.
2 927 926
exercise of certain creditors' rights, the Commission's authorization need This description fits the case at hand. From the facts alleged by Save the not be obtained in connection with financing arrangements a licensee may Valley, it appears that the WVPA is taking steps to assure the financial make with private or governmental financing institutions.' Und'er the siability of its participation in the Marble liill project. Such adjustments Commission's current reginne, an applicant for a constructiors permit or may be expected as a licensee assesses new economic conditions. Save the operating license must demonstrate in accordance with 10 C.F.R. 50.33(f)
Valley does not allege that the WVPA is transfering a portion of its 17%
and Part 50, Appendix C, that it has "a reasonable financing plan in the interest in the Marble liill project. The WVPA's request for additional light of relevant circumstances"* As noted earlier in this decision' the REA guarantees and the REA's actions did not require the Commission's Licensing Board found both Public Service Company of Indiana and the approval and did not otherwise constitute an unlawful amendment to the WVPA financially qualified before the Marble flill construction permits construction permits.'
were issued.'
The Marble liill construction permits contain a provision requiring the Although the Commission may require a licensee to demonstrate that it remains financially qualified after a license has been issued, the issuance of permittees to make a report under certain circumstances:
a license amendment is not required each time an electric utility licensee G. The applicants are financially qualified to design and construct seeks a new loan, issues new securities, or requests a rate increase. The the proposed facility. llowever, the apphcants are required to financing of any undertaking is obviously a dynamic process. The licensee inf rm the Commission if the U.S. kural Electrification Ad-is generally free to adjust its financial plan to new economic conditions, a ministrati n ever ttempts to take any action, under color of point that was discussed in an earlier decision under 10 C.F.R. 2.206:
uthority of the loan contract, which the applicants deem to be at variance with Public Serv ce Company of Indiana's techm, cal Even after consideration of the fundamental underlying assump.
Judgment or any Commission regulations or requirements.
tions to a financial plan-a viable capital market, and for re-gulated utilities, the continuation of a rational regulatory The Licensing Board included this condition in the construction permits environment-one can only view a financial plan to be one
" ut of an abundancc of caut;on" at the suggestion of the staff. The possible way by which a company's projected capital requirements, c ndition was intended as a stop-gap measure in the unlik:ly event that the including those resulting from the construction of a facility, might REA eser took any action which interfered with the Public Sem_ce reasonably be obtained. The inherent dynamics of both a com-Company of Indiana's safety responsibility and techm, cal j,udgment. The pany's individual finances and the state of the economy as a whole REA's extension of further financing assistance to the WVPA does not (and particularly its effect upon the electric utility industry) lead r ise in itself any inference thas the REA has mterfered with the health one to reasonably expect that a company's financial plans will nd safety responsibilities of either permittee. As discussed m the previous change over time to accommodate required adjustments. These paragraph, the WVPA's request and the REA's approval are not actions changes include revisions to the sources of funds, type of security requiring a license amendment and are not m themselves contrary to issues (both publicly issued and privately placed), and the timing and amounts of its financing. This is where " relevant circumstances (as discussed by the Commission in Seabrook
, Sase the Valley's citation to the Sholly decision is inapposite. Even if Sholly is uphe'd by the Supreme Court, Sholly only requires an opportunity to be heard where there has been an come into play, in that they allow the company to depart from the amendmeni io a License. As discussed in the nest or this decision. no amendmeni" to the proposed financial plan when reasonable, to conform to chan in Marble taill permits has occurred. II Save the Valley is complaining the REA improperly found that its actions had no significant environmental impact then Save the % alley's conditions.a l'
compi,;,, i;,,,,,,nsi ihe REA. noi the N RC.
,See Atomic Energy Act $184. 42 U.S C. 2234; 10 C.F.R. 50.80 and 50 81.
t BP-78-12. supra. 7 N RC at 577.
Pubhc Sernce Cu. of New //ampsNrr, supra. 7 NRC at 18. affd sub nom. New England
" As the staff no:cd proposing the condition, it would be shc r speculation to suggest that G
the RI:A would take such actions. Letter from L. Brenner. Counsel for NRC staff, to Coahima on Nuclear Pollution v. NRC. 582 F.2d 87 (1st Cir.1978). It should be noted that the Commission is considering changes to its financial qualifications requirements. 46 Fed.
Licenung Board (March I.1978). The Board had found that the proposed arrantements
, Reg. 41786 ( Aug.18.1981)-
betacen the WVPA and Public Service Company of Indiana mere structured in a manner
, See note i supra.
that gnes PSI transcedent authority and responsibility with respect to the health and safety of the public. See LBP-77-67, supra. 6 NRC at !I17.
o of New //ampshire (Seabrook Station. Un is I & 2). DD-79 20.10 tr"<
k C 0 7 928 929
Commission requirements. Save the Valley makes no allegation that the REA has attempted to interfere by its actions with the Public Service appropriate, in response to a petition under 10 C.F.R. 2.206, to engage in Company of Indiana's technical judgment. If the REA were.to attempt a further inquiry into the permittecs' current financial qualifications." The petitioner has not raised facts that would reasonably suggest further such interference, I would fully expect that the permittees, particularly Public Service Company of Indiana as the permittee primarily responsible inquiry is warranted.
to the Commission, would have reported the REA's actions to the Commis-for the foregoing reasons, Save the Valley's petition is denied. A copy of this decision will be filed with the Secretary for the Commission's sion. Because Save the Valley has not alleged any such interference by the REA and because I am not aware of any information which would review in accordance with 10 C.F.R. 2.206(c). As provided in 10 C.F.R.
reasonably indicate such interference, I do not find that further inquiry 2.206(c), this decision will become the final action in this matter 25 days into the REA's extension of financial assistance to the WVPA is warran-after issuance unless the Commission institutes review of the decisio ted.'2 own motion within that time.
Save the Valley is under the misimpression that the Commission's rules required the WVPA to give Save the Valley, as a party to the NRC's Harold R. Denton, Director construction permit proceeding, notice of the request filed with the REA.
Office of Nuclear Reactor Regulation The Appeal Board has required parties to " inform the presiding board and Dated at Bethesda, Maryland other parties of new information which is relevant and material to the this 13th day of October,1981.
matters being adjudicated"in a proceeding." This requirement applies only to pending proceedings in which no final action has been taken. The i
requirement is intended to assure that information relevant to matters
+
under adjudication can be factored into the Board's decisionmaking. As Save the Valley and its counsel should be aware, there is no pending l
proceeding with respect to the financial qualifications of the Marble Hill permittees. An operating license proceeding has not been instituted for the Mirble Hill station. Consequently, the WVPA had no duty to inform Save the Valley of the WVPA's request to the REA.
Save the Valley's petition does not indicate, much less allege, that the WVPA is financially unqualified to participate in the Marble Hill project.
3 To the contrary, Save the Valley indicates that the WVPA has been able i
12 obtain financing for its participation in the project. This case does not 2
r present, therefore, an instance like Seabrook in which it would be l
1 e
t I
l "See Northers fadians Public Service Co. (Bailly Generating Station. Nuclear.1). CLI.78 7, 7 NRC 429, 432 34 (1978), affd smo som Porter Comary Chap. of she Isaak Walton t
Leagsc. Ear. v. NRC. 606 F.2d 1363 (D.C. Cir.1979).
" Dukt power Co. (McGuire Nuclear Station, loits I & 2). ALA8-143,6 AEC 623,625 i
j*l973).
See rm6/ic Service Co. ofladians (Marble Hill Nuclear Generating Station. Units I & 2).
ALAB-530,9 NRC 261 (1979) in which the Appeal Board dismissed for lack of jurisdiction Save the Valley's motion to reopen the safety hearings after the Appeal Board's final dec,ision isS DD-79-20.10 NRC 703 (1979)
Effirming the, issuance of the construction permits. At that time only the radon assue remained open in the Marble Hill construction permit proceeding.
teSte Northers ladsens public Service Co sapre. 7 NRC at 432 34-b 930 93I l
. -.