ML20054F962
| ML20054F962 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/15/1982 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20054F959 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8206180280 | |
| Download: ML20054F962 (216) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .g7 33 ) 7 3; g(,
i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
~
In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant, Units 1 and 2) )
APPLICANTS' RESPONSE TO SUPPLEMENT TO PETITION TO INTERVENE BY WELLS EDDLEMAN George F. Trowbridge, P.C.
Thomas A. Baxter, P.C.
John H. O'Neill, Jr.
SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Samantha Francis Flynn CAROLINA POWER & LIGHT COMPANY Counsel for Applicants June 15, 1982 8206130280 820615 PDR ADOCK 05000400 0 PDR
_j
TABLE OF CONTENTS Page INDEX........................................................iv
- 2. INTRODUCTION............................................ 1 ZI. RESPONSE TO CONTENTIONS................................. 2 A. Requirements for Contentions....................... 2
- 1. Scope of Hearing Notice....................... 3
- 2. Bases With Reasonable Specificity............. 3
- 3. Challenges to Regulations.................... 14
- 4. Rulemakings.................................. 15
- 5. Application of Standards to Mr. Eddleman's Proposed Contentions......................... 16 B. Need for Power, Alternative Energy Sources, Cost-Benefit Analysis (Contentions 14-18, 20-23, 36, 59, 60, 87, 88, 126 (1st))............................ 19 C. Othe r Envi ronmental I ssue s . . . . . . . . . . . . . . . . . . . . . . . . 45
- 1. Radiological Monitoring (Contention 82)...... 45
- 2. Impacts on Fish (Contentions 83-86)..'........ 48
- 3. Mixing and Dispersion Model (Contention 80).............................. 50
- 4. Wildlife Habitat (Contention 98)............. 51
- 5. Site Hole (Contention 90).................... 52
- 6. Ocean Dumping of Low-Level Waste (Contention 12).............................. 52
-i-1
Page
- 7. Miscellaneous Information Request (Contention 109)............................. 53 D. Health Effects (Contentions 8, 37, 61, 62)........................................... 55 E. Waste Storage and Transportation.................. 67
- 1. Spent Fuel Transportation and Storage at Harris Plant (Contentions 24-28, 64, 126 "X").......................... 70
- 2. Waste Disposal (Contentions 67-69)........... 79 F. Decommissioning (Contentions 89, 104, 135)........ 81 G. Construction Deficiencies / Quality Assurance (Contentions 41, 65).................... 85 H. Risk Assessment / Accident Analysis (Contentions 34, 58 (1st), 93, 105, 119, 125)..... 88 I. Plant Design..................................... 102
- 1. Radiological Monitoring (Contentions 1, 2, 13, 91, 102, 103)..................... 102
- 2. Radioiodine Releaser (Contention 29)........ 109
- 3. Failure Modes (Contentions 4, 7, 108, 111)................................... 112
- 4. Equipment Qualification (Contentions 9, 11, 43, 70-72, 76-78, 96)................ 115
- 5. Steam Generators (Contentions 19, I
112-114).................................... 122 f
- 6. Reactor Vessel (Contentions 46-51, 92, 130, 131)............................... 124
- 7. Heat Sink (Contentions 75, 79).............. 131
- 8. Unresolved Safety Issues (Contention 107)... 135
- 9. ATWS (Contention 115)....................... 136
- 10. Hydrogen (Contention 128)................... 138
-ii-
Page
- 11. Miscellaneous (Contentions 10, 45, 116, 120, 132, 134)......................... 139 J. Emergency Planning.(Contentions 30, 32,-
56, 57, 63, 81, 97, 99, 100, 100B, 117, 118, 121, 124)................................... 147 K. Security Plan (Contentions 35, 54(2d), 133)...... 168 L. Management Capability (Contentions 3, 42, 44, 101, 106, 123, 127, 127X)............................................ 173 M. Municipal Power Agency (Contentions 58 (2nd), 66, 94)................................ 186 N. Antitrust (Contentions 38, 39)................... 192
- 0. Miscellaneous (Contentions 5, 6, 31, 33, 52-54 (1st), 55, 73, 74, 95, 110, 110X, 122, 129)........................................ 194 III. CONCLUSION............................................ 207 e
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-111-
. = - .- - . - -.
INDEX 4
Contention Page Contention Page
! l' 103 21 39 2 104 22 39 i
j 3 173 23 40 l
! 4 112 24 71 i
)
5 194 25 71 '
i
- 6 194 26 73 7 113 27 74
- 8 55 28 74 i
l 9 116 29 109 10 139 30 148 i
j 11 117 31 196 12 52 32 151
- l 13 106 33 197 14 30 34 94 15 31 35 168 l 16 35 36 41 i
17 36 37 55
! 18 37 38 192 19 122 39 192 20 37 40 197 J
]
-iv-i I
Contention Page Contention Page 41 86 59 42 42 181 60 42 43 116 61 -
65 44 182 62 66 45 140 63 151 46 129 64 75 47 125 65 18 7 48 127 66 190 49 127 67 79 50 127 68 81 51 128 69 81 52 197 70 119 ,
53 199 71 120 54(1st) 199 72 121 54(2nd) 168 73 201 55 200 74 203 56 151 75 131 57 153 76 118 58(1st) 95 77 119 58(2nd) 186 78 119
-v-
L Contention Pacn 00ntention Page 79 131 99 162 80 50 100 162 81 160 101 183 82 45 102 107 83 48 103 108 84 48 104 83 85 48 105 97 86 48 106 183 87 43 107 135 88 44 108 114 89 82 109 53 90 52 110 205 91 106 110X 205 92 130 111 113 93 97 112 122 94 190 113 122 95 204 114 122 96 117 115 136 97 161 116 142 98 51 117 164
-vi-
i Contention Page 118 165 119 99.
i 120 144
! 121 166 122 206 123 184 124 166 125 99 126(1st) 44 1
- 126X 75 127 184 i
127X 185 128 138 i
! 129 206 130 130 i
- 131 130 i
1 132 145 133 168 134 146 i
! 135 84 l
1
-vii-4 i
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UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant, Units 1 and 2) )
APPLICANTS' RESPONSE TO SUPPLEMENT TO PETITION TO INTERVENE BY WELLS EDDLEMAN I. INTRODUCTION By " Supplement to Petition to Intervene," dated May 14, 1982 (hereinafter the " Petition"), petitioner Wells Eddleman proposed approximately 135 enumerated contentions.2 The Petition also includes several motions and other
, requests for relief. Applicants Carolina Power & Light Company 1 On June 5, 1982, Mr. Eddleman filed " Amendments to Contentions and Additional Contentions." Applicants do not view their response to this unanticipated supplement to be governed by the response schedule established in the Board's Order of June 4, 1982. Consequently, Applicants will submit their response to the supplement separately pursuant to the g provisions of 10 C.F.R. S 2.714(c).
2 In several instances, two contentions have the same number (i.e., there are two contentions numbered 54, 58, 110, 126 and 127), and many contentions given one number have a considerable number of independent sub-parts.
I cnd North Carolina Eastern Municipal Power Agency herein present their response to the Eddleman petition.
We begin the response to Mr. Eddleman's proposed conten-tions with a general discussion of the legal requirements for contentions and of their application to this petition.
Applicants then address the contentions by subject matter group. (See the Table of Contents for an overview of the designated groups and order of presentation.) Because most of the proposed contentions are multi-faceted, the assignment of a particular contention to any one group is necessarily arbi-trary. It is Applicants' hope, however, that the subject matter groupings will facilitate Board decision-making where common legal principles and factual circumstances apply, and will provide for an easier identification of shared interests among the various petitioners.
II. RESPONSE TO CONTENTIONS A. Requirements for Contentions Applicants set forth below their specific response to each of the proposed contentions advanced in this petitioner's supplemental petition for leave to intervene. The issue before the Board now, of course, is not whether the petition is right or wrong about the assertions made in the contentions, but whether or not the contention meets the NRC's standards for admission into the proceeding as a matter in controversy which then will be decided on the merits by the Board -- either through the summary disposition procedure (10 C.F.R. $ 2.749) or in a Board initial decision rendered after an evidentiary hearing. Because these NRC standards serve as the benchmark for Applicants' responses below to the individual proposed contentions, we will discuss those requirements at the outset.
- 1. Scope of Hearing Notice A threshold requirement for an admissible contention is that it address a matter which is within the scope of the issues set forth in the Commission's Notice of Opportunity for Hearing in this proceeding. See Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1),
ALAB-619, 12 N.R.C. 558, 565 (1981); Portland General Electric Company, et al. (Trojan Nuclear Plant), ALAB-534, 9 N.R.C. 287, ,
289-290, n.6 (1979); Public Service Company of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-316, 3 N.R.C. 167, 170-171 (1976).
- 2. B_ases with Reasonable Specificity The Commission's Rules of Practice, at 10 C.F.R.
S 2.714(b), require that the supplemental petition for leave to intervene ". . . must include a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity."
Application of this " bases with reasonable specificity" standard has spawned a significant body of case law within the Commission and, while the essential ingredients of section 2.714(b) have long been in the regulations, some controversy remains at least as to when in the course of a proceeding the contentions must all meet the standard. In particular, in its Order (Setting New Date for Prehearing Conference and for Related Filings), June 4, 1982, at 4-5, the Board calls attention to a recent special prehearing conference order by the Licensing Board presiding over the operating license proceeding in Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2 ) , Docket Nos. 50-413, 414. We address that board's rulings below because, as the Board observes in its Order, the same issues will arise in this case.
There are several purposes which underlie the Commission's standard in section 2.714(b):
A purpose of the basis-for-contention requirement in Section 2.714 is to help assure at the pleading stage that the hearing process is not improperly invoked. For example, a licensing proceeding before this agency is plainly not the proper forum for an attack on applicable requirements or for challenges to the basic structure of the Commission's regulatory process. Another purpose is to help assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose. Still another purpose is to assure that the proposed issues are proper for adjudication in the particular proceeding. In the final analysis, there must ultimately be strict observance of the requirements governing
__-_________-__________-_________________________________________a
intervention, in order that the adjudicatory process is invoked only by those persons who have real interests at stake and who seek resolution of concrete issues.
Philadelphia Electric Company, et al. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13, 20-21 (1974) (footnotes omitted).
The notice aspect of the requirement is a natural outgrowth of fundamental notions of fairness applied to the party with the burden of proof. As the Atomic Safety and Licensing Appeal Board has observed:
The applicant is entitled to a fair chance to defend. It is therefore entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being asked . . . . So is the Board below. It should not be necessary to speculate about what a pleading is supposed to mean.
Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 N.R.C. 559, 576 (1975)
(emphasis supplied; footnote omitted). Moreover, the Licensing Board is entitled to adequate notice of a petitioner's specific contentions to enable it to guard against the obstructionism of its processes. As noted by the Supreme Court in upholding the
- Commission's requirements for a threshold showing of mate-riality for environmental contentions
. . . [I]t is incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contention. . . . Indeed,
- administrative proceedings should not be a
game or forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that "ought to be" considered. . . .
Varmont Yankee Nuclear Power Corporation v. Natural Resources Dnfense Council, 435 U.S. 519, 553-554 (1978).
Yet, important as the notice aspect of the standard is, the requirement for bases with reasonable specificity goes beyond the " notice pleading" allowed in the federal courts, which has been found to be insufficient for NRC licensing proceedings.3 See Wolf Creek, supra, ALAB-279, 1 N.R.C. at 575, n.32 (1975). On the other hand, the regulation does not require the petition to detail the evidence which will be offered in support of each contention. Peach Bottom, supra, ALAB-216, 8 A.E.C. 13, 20 (1974).4 In short, the standard falls somewhere in between, and "[t]he degree of specificity with which the basis for a contention must be alleged initially involves the exercise of judgment on a case-by-case basis."
i _I_d.
l 3 Thus, the federal cases cited by CHANGE /ELP (in its May 24, 1982 amendment to proposed Contention 80) in suppe t of the
" notice concept" of pleading are inapplicable here.
4 See also Missouri Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2 ) , ALAB-130, 6 A.E.C. 423, 426 (1973); Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542, 548-549 (1980).
I
There are several practical elements which should play a particularly important role, however, in the Board's judgmental exercise of applying the " bases with reasonable specificity" l
l standard to a particular proposed contention -- beyond the question of whether it provides clear and precise notice of the issues on which Applicants may bear the burden of proof.
First, the contention should refer to and address relevant documentation, available in the public domain, which is relevant to this facility. This applies with special force to Applicants' Final Safety Analysis Report and Environmental Report, but may also include applicable NRC Staff regula-tory guides and other published reports. Second, there should be either a reasonably logical and technically credible explanation, or a plausible and referenced authority for the factual assertions in the contention. The petitioner's personal opinion alone is not adequate for this purpose.
The Licensing Board in Catawba was concerned about applying the " bases with reasonable specificity" standard to i proposed contentions where the factual information necessary for specificity is not available to the prospective intervenor at this stage of the proceeding. In particular, that Licensing Board did not view it to be appropriate to apply the regulatory l
0 standards applicable to late contentions where, through no 5 See Cleveland Electric Illuminating Comoany, et al.
(Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 N.R.C. 175, 181-184 (1981).
6 Late contentions are judged upon a balancing of the following factorc, among others:
(Continued Next Page) fcult of the petitioner, the key document bearing the requisite
.information becomes available at a later stage of the case.
Consequently, that Board admitted on a conditional basis some contentions which presently lack specificity. Intervenors advancing such contentions will be required, by the Catawba Board's order, to revise them within 30 days following receipt of the relevant document currently absent. The additional criteria applied to late contentions, 10 C.F.R. 5 2.714(a)(1),
are not to be applied to these revised contentions. See Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), LBP , 15 N.R.C. __, slip op. at 3-13 (March 5, 1982).
(Continued)
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means wher-eby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
10 C.F.R. S 2.714(a)(1).
We have considerable sympathy for the very real dilemma which faced the Catawba Board. It does not seem reasonable to require bases with specificity on issues which have not yet been addressed by the applicant and the agency staff. We do disagree, however, with the Catawba Board's resolution of the problem. In our view, it is entirely feasible to rectify any unfairness to petitioners from the unavailability of informa-tion in certain areas without mounting a fundamental alteration of the adjudicatory process and without emasculating regula-tions which, in the vast majority of cases, serve a valuable purpose as literally applied.
The Catawba Board, however, should not have' conditionally admitted vague contentions, where key documents are not yet available, and thereby subjected the applicants and NRC staff in that case to discovery requests on them. Applicants submit that it also erred in providing a waiver of the so-called " good cause" factors for an assessment of later revisions of such contentions. Like the NRC Staff in Catawba,7 we do not believe that application of the criteria for late-filed contentions need be a barrier to the admission of contentions i
genuinely based upon new information in documents which are yet to be issued and which routinely must be produced in connection i
7 NRC Staff's Objections to Licensing Board's March 5, 1982 Order on Admission of Contentions, April 5, 1982, at 11-15.
with the NRC's review of an operating license application.
Rcther, the present absence of such information would overwhelm the other " good cause" factors.
Except for the apparent concern which the Catawba Board had with an intervenor's ability to pass the criteria of 10 C.F.R. 5 2.714(a)(1) on a previously unavailable document critical to the case, Applicants believe that the controversy in that proceeding is academic in this case. That Board stated that "[w] hat we have just said applies only to contentions for which little or no information has been supplied by the Applicants in their FSAR or Environmental Report." Catawba, supra, slip op. at 12. Applicants' response below to the individual contentions is responsive to this view. We have ossentially stipulated there that new information in: (1) future amendments to the FSAR on the subject of equipment qualification; (2) a future amendment to the ER to conform the cost-benefit analysis to the Commission's new "need for power" rule; (3) the Staff's treatment of the health effects of fuel cycle activities (not addressed in the ER, but required to be 1
addressed in the Draft Environmental Statement); (4) the i
Staff's discussion of Class 9 accidents in the Draft Environmental Statement (where by rule they need not be addressed in Applicants' ER); (5) the Staff's treatment of unresolved safety issues in the SER; and, (6) the availability
{ of draft emergency plans -- will constitute good cause for the l
l
filing of new contentions. In other words, factor (i) will prevail over a balancing, as the regulation provides, with factors (ii) to (v) of section 2.714(a)(1).
Consequently, there need be no " Catch 22" or " squeeze play" as the Catawba Board termed it. The factors in section 2.714(a)(1) are to be balanced, and that judgment is a discre-tionary one with the Board. There are relatively few instances, however, where documents are yet to be produced which will include genuinely new information.8 Applicants also wish to address what they believe was another, but more serious, erroneous ruling by the Catawba Board, which was to admit yet another group of vague conten-tions -- even where no key licensing document integral to their particularization was yet unissued -- for a period of discovery before revision.
Applicants submit that the leading cases discussed by the parties and the Board in Catawba -- Wisconsin Electric Power Company (Koshkonong Nuclear Plant), CLI-74-45, 8.A.E.C. 928 i (1974) and Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-lO7, 6 A.E.C.
188 (1973), aff'd, CLI-73-12, 6 A.E.C. 241 (1973), aff'd sub nom., BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974) -- clearly 8 For example, the Staff's SER and draft environmental sta-tement largely will address facts and information available in Applicants' FSAR and ER.
4
etand for the proposition that where an applicant's safety analysis and environmental reports are available, petitioners may not rely on the opportunity for future discovery or the absence of other documents as grounds for deferring their obligations to plead specific contentions.9 Discovery is not to be used as a means of establishing the basis for a contention. See Koshkonong, supra, CLI-74-45, 8 A.E.C. 928, 929 (1974). The purpose of discovery is not to frame contentions, but rather ". . . to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expeditious hearing or trial." Pennsylvania Power &
Light Company, et al. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 N.R.C. 317, 322 (1980). The refining and narrowing process which occurs through discovery, summary disposition, and the final prehearing conference before trial is above and beyond the initial requirement to provide 9 In this regard, Applicants believe that the Catawba Board's reliance upon the decision in Tennessee Valley Authority (Browns Ferry Nuclear Power Plant, Units 1, 2 and 3),
ALAB-664, 15 N.R.C. (January 6, 1982), is misplaced since it was an admittedly " unique case" where the petitioner's party status might depend upon a future Staff analysis. Furthermore, the Appeal Board majority did not support admitting defective contentions, but rather required the Licensing Board to defer ruling on such contentions until issuance of the Staff docu-ment. This distinction is important because deferral would not trigger discovery. Likewise, reliance should not have been placed upon the decision in Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 N.R.C. 683 (1980), since no concededly vague contentions were admitted by that Licensing Board.
bcsis with reasonable specificity in order to invoke the entire adjudicatory, process, including discovery.10 In conclusion, the Boarc should now apply the standard of
" bases with reasonable specificity" to proposed contentions, recognizing that as to key, foreseen licensing documents --
i.e., FSAR and ER amendments, the SER, DES, and draft emergency plans -- new contentions may be judged principally by the criterion in 10 C.F.R. 5 2.714(a)(1)(i) -- i.e., good cause (new information) for the untimely contention. An alternative to this approach would be simply to defer ruling on proposed contentions which must depend on these documents, subject to revision and ruling when the new information is made available.11 Discovery, of course, would await the deferred ruling.
10 Applicants do not underestimate the capacity of a peti-tiener such as Mr. Eddleman literally to overwhelm the Staff and Applicants with discovery requests on broad conditional contentions. We submit that such a time-consuming and costly exercise is unfair and unwarranted absent a finding that a cog-nizable issue, with basis and reasonable specificity, has been advanced.
11 This is the approach taken by the Licensing Board in Commonwealth Edison Company (Quad Cities Station, Units 1 and 2), LBP-81-53, 14 N.R.C. 912, 914-915 (1981), a decision cited by the Catawba Board. The Quad Cities Board did not condition-ally admit defective contentions, however, subject to later refinement.
- 3. Challenges to Regulations Any rule or regulation of the Commission, and the underly-ing basis for that rule or regulation, is not subject to attack in an individual license proceeding unless a petition is first made to the Licensing Board for an exception or waiver. The cole ground for a petition for waiver or exception shall be that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted. The potition is to be accompanied by an affidavit in support of that basis for the petition. Opportunity is provided for other parties to respond to the petition, including the submission of reply affidavits. If the Licensing Board determines that a prima facie showing has been made in support of waiver or exception, it shall, before ruling, certify directly to the Commission for a determination on the matter. If the Licensing Board does not determine that such a prima facie showing has been made, it must deny the petition. 10 C.F.R. 5 2.758; Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79, 89 (1974).
Applicants oppose the anticipatory request -- made by petitioners Eddleman, CHANGE /ELP, Kudzu Alliance, and CCNC --
l
for permission to seek waiver or exception to any rule or regulation the Board considers to be attacked by a proposed contention. Blanket requests that the Board treat intervention petitions and contentions as petitions for exceptions to the Commission's regulations wherever the Board finds a regulation under attack are not an acceptable substitute for, and would bypass, the careful process prescribed by 10 C.F.R. $ 2.756.
In addition, Mr. Eddleman's abstract request for Appeal Board cortification of an adverse Licensing Board ruling on these grounds is particularly inappropriate. There are specific standards to apply to a request for discretionary interlocutory review, and the Licensing Board should rule on such a request only in the face of an actual ruling under challenge, and with the benefit of responses by other parties.12
- 4. Rulemakings Licensing Boards should not accept in individual license proceedings contentions which are, or are about to become, the subject of general rulemaking by the Commission. Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79, 85 (1974);
12 This same objection applies to Mr. Eddleman's other antic-ipatory requests for certification to the Appeal Board of Licensing Board decisions not yet made. See, e.g., Eddleman Petition at 18-19 (exclusion of any contentions on jurisdic-tional grounds).
Sacramento Municipal Utility District (Rancho Seco Nuclear Generation Station), ALAB-655, 14 N.R.C. 799, 816 (1981).
- 5. Application of Standards to Mr. Eddleman's Proposed Contentions With respect to Mr. Eddleman's proposed contentions, there is a particular difficulty in applying the criteria of " bases with reasonable specificity" which creates a substantial burden upon Applicants and grave impairment of Applicants' ability to respond to and defend against them.
Mr. Eddleman has acknowledged that while intending to be specific, he perhaps has stated his contentions in an overly broad fashion. Petition at 21. Applicants have indeed found that in spite of all their words and threads of ideas many of Mr. Eddleman's proposed contentions fail to set forth any' basis therefore with the required degree of specificity. Another aspect of the problem created by the way in which Mr. Eddleman's prcposed contentions are stated is that, in many instances, there are so many ideas expressed in uhat purports to be a single contention that Applicants are unable to determine with any '
confidence exactly what issue Mr. Eddleman wishes to raise.
These qualities of Mr. Eddleman's style of framing proposed contentions point up that a necessary corrollary~of the requirement of reasonably specificity is the prigciple that a contention must be stated with clarity and precision. See
Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 N.R.C. 559, 576-77 (1975).
To repeat what the Appeal Board stated in Wolf Creek:
The applicant is entitled to a fair chance to defend. . . . It should not be necessary to speculate about what a pleading is supposed to mean.
Zd. at 576. Such clarity and precision in the articulation of proposed contentions are crucial if an applicant's right to due process is to be ensured.
Applicants understand that a layman who proceeds without.
legal counsel cannot be held to the degree of clarity and precision that is required of lawyers. Id. at 576-77; Public
+
Service Electric and Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 A.E.C. 487, 489 (1973).
On tlie other hand, Applicants believe that a petitioner to intervene can and should be held to such standards as are commensurate with his own background and skills. Mr. Eddleman has already called to the Board's attention the facts that he operates an energy consulting business and is a teacher; that he was permitted to sit at counsel table and act as an advisor to the intervencrs in the Shearon Harris management capability hearings before the construction permit Licensing Board; that he das appeared pro se in a hearing before the North Carolina Environmental Management Commission; and, finally, that he possesses "the ability to conduct cross-examination on
technical issues." Petition to Intervene, Request for Hearing, and Motion for Extensions of Time of Wells Eddleman, pro se (February 25, 1982) at 2, 6. A person with such credentials can be expected, and required, to articulate his contentions in a manner which enables an applicant to understand the issues against which it might be required to defend.
It is Applicants' position, therefore, that where a contention proposed by Mr. Eddleman lacks sufficient clarity to permit comprehension of the issue sought to be raised, it cannot be deemed to have been stated with the degree of specificity required by section 2.714 and should not be admitted as a contention in this proceeding.
Should the Board decide to admit a contention proposed by Mr. Eddleman to which Applicants have objected as lacking in clarity or specificity, Applicants urge that, before such a contention is admitted, Mr. Eddleman be required to clarify his position sufficiently to permit its reformulation into a concise, clear contention. Fairness requires this process because such a contention, if not properly modified, will create an intolerable burden upon Applicants, who will have the obligation to defend against and the burden of proof as to such issue. A licensing board directive to reformulate contentions is not unusual. The process of clarification urged by Applicants has been recognized by the Appeal Board in Salem, suora, where the Appeal Board pointed out that, at the
prehearing conference, a licensing board may insist that an intervenor who has presented an inartfully drawn contention provide such clarification of the contention as the Board deems necessary. Salem, supra, ALAB-136, 6 A.E.C. at 489. If Mr.
Eddleman fails to provide such clarification as is necessary to frame a comprehensible contention to which Applicants can be expected to respond without unreasonable difficulty and risk, Applicants believe that principles of fundamental fairness require the exclusion of the proposed contention.
B. Need for Power, Alternative Energy Sources, Cost-Benefit Analysis (Contentions 14-18, 20-23, 36, 59, 60, 87, 88 and 126 (1st))
Applicants note at the outset that material on need for power, alternative energy sources and related cost-benefit balance contained in their Environmental Report, to which many of Mr. Eddleman's contentions are addre'ssed, was prepared in a format common to environmental reports and statements prior to amendment of Part 51 of the Commission's regulations concerning the admissibility of need for power and alternative energy source issues at the operating license stage. This amendment, which became effective on April 26, 1982, and which was made applicable to pending operating license proceedings, is now controlling with respect to intervenors' need for power contentions. See 47 Fed. Reg. 12940 (March 26, 1982). The pertinent additions to Part 51 are as follows:
5
I No discussion of need for power or alterna-tive energy sources or alternative sites for the proposed plant is required in the report, [at the operating license stage]
unless otherwise required by the l
Commission. (Section 51.21) l l In the case of environmental impact statements prepared in connection with operating licenses for nuclear reactors no discussion of need for power or alternative
- energy sources or alternative sites is j required, unless otherwise required by the (Section 51.23(e))
Commission.
Presiding officers shall not admit conten-tions proffered by any party concerning need for power or alternative energy sources for the proposed plant in operating license hearings. (Section 51.53(c))
While the amendments to Part 51 are framed in terms of the elimination of need for power and alternative energy source issues in operating license proceedings, it is clear from the explanations which accompanied both the proposed and final rule that the Commission had a broader purpose in mind. That purpose was to establish a presumption of continuing validity at the operating license stage of the favorable cost-benefit balance already struck in the construction permit proceeding.
That presumption is open to challenge only by a showing of "special circumstances" in accordance with the criteria and procedures of section 2.758 of the Commission's regulations.
In publishing its final rule the Commission made clear that the justification for the amendment was the small likeli-l hood that reconsideration at the operating license stage of I ,
1
)
n2ed for power or alternative energy source issues would tip the NEPA balance, struck at the construction permit stage, cgainst the operation of the plant. Thus in the Commission's statement of Background of the Rule, published with the final rule, the Commission explained:
On August 3, 1981, the Commission published in the Federal Register (46 FR 39440) for public comment, proposed amendments to 10 CFR Part 51 of its regulations. As discussed in the statement of considera-tions which accompanied the proposed rule, the purpose of these amendments is to avoid unnecessary consideration of issues that are not likely to tilt the cost-benefit balance by effectively eliminating need for power and alternative energy source issues from consideration at the operating license stage. In accordance with the Commission's NEPA responsibilities, the need for power and alternative energy sources are resolved in the construction permit proceeding. The Commission stated its tentative conclusion that while there is no diminution of the importance of these issues at the construc-tion permit stage, the situation is such that at the time of the operating license proceeding the plant would be needed to either meet increased energy needs or replace older less economical generating capacity and that no viable alternatives to the completed nuclear plant are likely to exist which could tip the NEPA cost-benefit balance against issuance of the operating license. Past experience has shown this to be the case. In addition, this conclusion is unlikely to change even if an alterna-tive is shown to be marginally envi-ronmentally superior in comparison to operation of a nuclear facility because of the economic advantage which cperation of nuclear power plants has over available fossil generating plants. An exception to the rule would be made if, in a particular case, special circumstances are shown in accordance with 10 CFR 2.758 of the Commisslua a regulations.
m 47 Fed. Reg. at 12940.
A similar explanation of the purpose of and justification for the amendments, again emphasizing the unlikelihood of an unfavorable change in the cost-benefit balance drawn in the construction permit hearing, also accompanied the proposed rule issued in July, 1981. 46 Fed. Reg. 39440 (1981). At that time the Commission explained in greater detail the Commission's reasons for concluding that a favorable cost-benefit balance found to exist at the time of construction is very unlikely to be tipped against plant operation. These reasons included factors which actually improve the cost-benefit balanca at the time of operation, e.g., that investment in the plant will already have been made, that environmental impacts associated with construction will already have occurred, and that the Commission's universal experience has been that nuclear plants once completed are operated at capacity to replace older or less economical generating plants regardless of need for power.
Thus the Commission explained:
In accordance with the Commission's NEPA responsibilities, the need for the power to be generated by a proposed nuclear power plant and alternative energy sources for the generation of the power, including no additional generating capacity at all, are considered and resolved in the construction permit proceeding associated with the proposed facility. The construction permit proceeding is the appropriate forum in the Commission's two step licensing process for resolution of these issues. Prior to the start of construction there has been little environmental disruption at the proposed site and only a relatively small capital investment has been made by the license applicant. Hence, real alternatives to the construction and operation of the proposed facility exist, including no additional i generating capacity at all if no "need" exists, or generation of the needed electricity by some nonnuclear energy source. In issuing this proposed rule, the Commission in no way diminishes the importance that attaches to having the most accurate possible assessment of need for power and alternative energy sources during the construction permit review.
The situation is significantly different at the operating license stage. This stage of the licensing process is reached only after a finding at the construction permit stage that there existed a need for the power and that, on balance, no superior alternative energy sources existed. At the time of the operating license decision, construction related environmental impacts have already occurred at the site and the construction costs have been incurred by the licensee.
The facility is essentially completely constructed and ready to operate when the Commission's Atomic Safety and Licensing Board renders its decision on the operating license application.
Operation of a nuclear power plant entails some environmental cost which should be justified, under NEPA, by some benefit from plant operation. In all cases to date, and in all foreseeable future cases, there will be some benefit in terms of either meeting increased energy needs or replacing older less economical generating capacity.
Experience shows that completed plants are in fact used to their maximum availability for either purpose. Such facilities are
- not abandoned in favor of some other means i
of generating electricity. For purposes of this proposed rule the Commission has assumed, conservatively, that the plant is not needed to satisfy increased energy needs, but rather is justified, if at all, as a substitute for other generating capacity.
NEPA also requires the Commission to consider alternatives to the proposed action. This is not to say that need for power and alternative energy source issues previously considered in the construction permit proceeding need be reconsidered at the operating license stage. On the contrary, NEPA does not require the Commission to duplicate at the operating license stage its review of alternatives absent new information or new developments.
Calvert Cliffs' Coordinating Committee, Inc. v. A.E.C., 449 F.2d 1109, 1128 (D.C.
Cir. 1971). Union of Concerned Scientists
- v. A.E.C., 499 F.2d 1069, 1079 (D.C. Cir.
1974). In reaching its decision on the issuance of a construction permit, the Commission will have found that, on balance, no superior alternative energy source exists, and that the environmental consequences of the construction and operation of the proposed plant, are small relative to the anticipated benefits.
There has never been a finding in a Commission operating license proceeding that a viable environmentally superior alternative to operation of the nuclear facility exists. Therefore, past experi-ence suggests that rarely will an alterna-tive energy source, including use of an existing fossil-fired unit as substitute for the nuclear plant, be found envi-ronmentally superior to the nuclear plant.
46 Fed. Reg. at.39440-41 (1981).
The purpose of the Part 51 amendments is further evidenced in the Commission's explanation of the special circumstances which might justify a reopening of need for power or alterna-tive energy source issues. In promulgating both its proposed and final rule the Commission made clear that exceptions to the rule could be sought on the basis of special circumstances in accordance with 10 C.F.R. 5 2.758. The Commission explained
- - - - - - - - - - - - - - - - - - - - - - - - - - - --- - - - -. .-- -- J
that "(s]uch special circumstances could exist. if, for example, it could be shown that -n tar plant operations would entail unexpected and significant adverse environmental impacts or that an environmentally and economically superior alternative existed." (Proposed Rule, 46 Fed. Reg. at 39441. Thus the Commission made it clear that special circumstances must be shown, whether they relate to the cost or to the benefit side of the cost-benefit analysis, in order to reopen questions of need for power or alternative energy sources. This reinforces the conclusion that the Board should itself set a high thresh-old before concluding that new allegations of environmental cost justify certifying to the Commission pursuant to 10 C.F.R.
5 2.758 any exception or waiver from the new rule which would permit reconsideration of need for power or alternative energy sources.
A logical extension of the amendments to Part 51 would be to require any party seeking to reopen the cost-benefit balance to make a showing of special circumstances before permitting contentions claiming unexpected and significant environmental costs, just as they do for contentions concerning need for power and alternative energy sources. The amendments them- I selves, however, do not appear to go so far. Applicants will not therefore object to otherwise acceptable contentions claiming that environmental impacts of plant operation have not been given proper consideration. Such ;ontentions may, of course, be raised in the context of considering measures that might be taken to mitigate such impacts. They may also be asserted in the context of attempting to establish a basis for challenging the cost-benefit balance. The Board should, however, take into account the findings already made by the Commission in promulgating its now rule which recognize the cost-benefit determination already made in the construction permit proceeding and the factors which at the operating license stage improve or support the cost-benefit balance in favor of plant operation. Applicants anticipate confidently that any claims of unexpected and significant environmental costs, even if shown to have some validity, will be more than offset by both environmental and cost savings in replacing existing generating capacity with the Harris units. In any event, the Board should insist that petitioners meet a heavy burden in showing that any environmental impacts alleged to have been overlooked or underestimated are of an equivalent magnitude to that which would justify reopening the issues of need for power or alternative energy sources and conducting a de novo review of the cost-benefit balance.
Mr. Eddleman has neither made the kind of showing of special circumstances required to reopen need for power or alternative energy source issues nor observed the procedures mandated by the Commission for doing so. As discussed pre-viously in section II.A.3, suora, in order to reopen these
incues Mr. Eddleman must make a substantial showing to the Board in accordance with 10 C.F.R. 5 2.758, by way of both petition and affidavits, to which other parties may respond.
The Board is directed to deny any petition for exception or waiver of the Commission's regulations where the requisite showing has not been made. Mr. Eddleman's blanket request that the Board treat his intervention petition as a petition for exception to the Commission's regulations would shortcut the Commission's standards for such petitions in both a procedural and a substantive way.
Mr. Eddleman not only seeks to reopen the issues of need for power and alternative energy sources but would have the Board suspend construction of the Harris plant based on his own cost-benefit analysis. The dispositive answer is that a Licensing Board in an operating license proceeding has no authority to suspend construction. As recently as May 5, 1982, an Appeal Board in an operating license proceeding, where intervenors also sought to have the Licensing Board suspend construction, has ruled squarely on this point. As stated by the Appeal Board:
A licensing board for an operating license proceeding, such as the one involved here, is limited to resolving matters that are raised therein as legitimate contentions by the parties or by the board sua sponte. 10 CFR 2.760a; Consolidated Edison Co. of New York (Indian Point, Units 1, 2 & 3),
ALAB-319, 3 NRC 188, 190 (1976). Pursuant to that mandate, a board can authorize or refuse to authorize the issuance of an
operating license. .It does not, however, have general jurisdiction over the already authorized ongoing construction of the plant for which an operating license application is pending, and it cannot suspend such a previously issued permit.
Thus, the Board below was powerless to grant the relief that intervenors reques-ted.
Consumers Power Company (Midland Plant Units 1 and 2),
ALAB-674, 15 N.R.C. (May 5, 1982). .The Appeal Board further pointed out in its decision that the proper course of action in seeking suspension of construction would have been a petition to the Director of Nuclear Reactor Regulation pursuant to 10 C.F.R. $ 2.206.
Mr. Eddleman further misunderstands the nature of the cost-benefit considerations at the operating license stage. As pointed out by the Commission in explaining its amendments to Part 51, at the time of an operating license decision the facility is essentially completely constructed and ready to operate, and it must be assumed that construction costs have been incurred. Quite apart from need for power, operation of l the nuclear facility can be justified as a replacement for more I
expensive generating capacity. Since the capital costs of system generating plants, including the nuclear plant to be operated, have already been incurred, the proper analysis of replacement cost savings involves only a comparison of incre-mental fuel and other operating costs.13 Applicants 13 The Commission and Appeal Board have already in other con-texts ruled on the propriety for cost-benefit purposes, of (Continued Next Page)
therefore oppose below a number of Mr. Eddleman's cost-benefit contentions which seek to challenge the cost of plant construc-tion.
As indicated at the outset of this introduction, Applicants' cost-benefit analysis in the ER was prepared prior to the Commission's amendments to Part 51. It included information on need for power, i.e., load forecasts and reserve margins. It also compared the Harris plant with other alterna-tives and included in its comparison both construction and operating costs. With the elimination of the issue of alterna-tive energy sources, such a comparison is no longer necessary.
Applicants will replace the existing cost-benefit analysis with (Continued) taking into account " sunk" costs. The sunk costs to be consid-cred are governed by the stage of the licensing proceeding in question and encompass engineering and construction costs legitimately incurred by the applicant in reliance on Commission regulations and permits. Thus in the initial con-struction permit proceeding it is appropriate to consider site investigation costs allowed by Commission regulation and neces-sary to the preparation of a construction permit application.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 N.R.C. 503 (1977). In the case of a construction permit remand for additional cost-benefit con-sideration, such costs include construction costs incurred by the applicant at the time of remand on the strength of the ini-tial construction permit. Vermont Yankee Nuclear Power Corporation, et al. (Vermont Yankee Nuclear Power Station),
ALAB-392, 5 N.R.C. 759 (1977). This is all the more appropri-ate where in an operating license proceeding, the Board has no jurisdiction to consider issues relating to construction of the plant. Midland, supra, ALAB-674. The presumption of " sunk" costs being outside the cost-benefit balance was a premise for the "need for power" rule. 46 Fed. Reg. at 39440 (1981).
I
ona which compares only the operating costs (including fuel) of the Harris Plant with other available capacity. Applicants are willing to stipulate that new contentions filed within a reasonable period of time after Applicants file such new data will not be challenged as untimely, and pursuant to 10 C.F.R.
5 2.714(a) may be accepted by the Board as long as they meet the test for bases with reasonable specificity and are otherwise cognizable in this proceeding.
With this background we address Mr. Eddleman's contetions with respect to these issues.
Contention 14 asserts that " Applicants' Cost-Benefit Analysis under NEPA is seriously in error because in estimating benefits to be derived from the operation of Harris Units 1 and 2, it fails to take into account both a short-run and a long-run price elasticity of electric demand." Mr. Eddleman contends that "when these elasticities are applied to the known capital costs of Harris Units 1 and 2 . . . the short-run reduction in demand will eliminate the consumption of most of the output of the units; and the long-run reduction in demand will eliminate the entire output of the units (or more) from consumption." Petition at 62.
In raising this contention, Mr. Eddleman seeks to inject the question of the need for power into the proceeding. For the reasons discussed in the introduction to this group of contentions, Contention 14 must be rejected as an impermissible
challenge to 10 C.F.R. S 51.53(c). See Catawba, supra, slip op. at 32-33.
Contention 15 can be described as an attack on ce.rtain of the cost data and benefit assumptions in sections 8 and 11 of the ER and on the cost-benefit balance struck. Many subsidiary issues, raised as individual contentions and discussed subse-quently in this response, are mentioned in the development of this contention. The substance of such subsidiary issues is not treated here; rather we address only the contention that the cost-benefit analysis is " deficient and inaccurate."
Petition at 68.
Mr. Eddleman complains that the data in sections 8 and 11 are outdated. He obviously is not referring to the data as updated by Amendments 1 and 2 of the ER (although later at Contention 22 Mr. Eddleman mentions the two amendments -- thus he is aware of them). The information in these sections of the ER is generally up-to-date. His gratuitous allegations of incompetence and/or dishonesty for failure to provide up-to-date information are unfounded and tasteless.
In large part Mr. Eddleman seeks to attack Applicants' estimates of the cost of construction of the Harris Plant. As discussed above, at the operating license stage such costs are sunk casts which do not properly enter into the cost-benefit balance in determining whether the plant should be operated.
Mr. Eddleman asserts that the cost-benefit analysis should include an evaluation of alternatives. However, he acknowl-cdges that by Commission rule such an evaluation is not to be considered at the operating-license proceeding. Petition at 71. Thus Mr. Eddleman's challenge here is strictly legal argument against a Commission rule and is inappropriate in proposing contentions. See 10 C.F.R. 6 51.53(c) and the discussion at the beginning of this group of contentions.
Mr. Eddleman claims that Applicants' ER makes no mention of the cost of nuclear waste disposal; then, after referencing the cost used in Applicants' ER, asserts that it is too low.
Mr. Eddleman has not cited a sufficient basis for this aspect of his contention. The estimated cost for spent fuel storage and disposal of 1.22 mills per kilowatt-hour (ER at Table 8.2.1-4) is in excess of the charge recently established by the United States Senate of one mill per kilowatt-hour for spent fuel transportation, interim storage in a monitored, retrievable storage facility and permanent disposal in a repository S. 1662, 97th Cong., 2d Sess. (Title VI)(1982).
This charge was considered adequate by the Department of Energy and Congressional Budget Office. Hearings on the Fiscal Year 1983 Department of Energy Budget Before the Subcommittee on Energy and Water Development, House Committee on Appropriations, 97th Cong., 2d. Sess. (May 13, 1982) (Testimony of Shelby T. Brewer, DOE Assistant Secetary for Nuclear Energy); 128 Cong. Rec. 5 4164-69 (daily ed. April 28, 1982)
(correspondence from Congressional Budget Office). The roference cited by Mr. Eddleman to a 1978 DOE Report is not current and was in 1978 only a rough estimate.
Mr. Eddleman asserts that the cost-benefit analysis should have assigned a value to " lives lost in uranium mining, nuclear fuel cycle otherwise, radon emissions from nuclear fuel cycle, nuclear plant operations and accidents, and nuclear transport accidents and nuclear fuel disposal." As discussed infra in response to Contention 8(b), the environmental impacts of the nuclear fuel cycle have been taken into consideration and have been established by Commission rule not subject to attack in this proceeding.
Mr. Eddleman contends that Applicants "should have used more accurate data on the health effects of radioactive emissions, short and long term." This is really the same allegation as was made in Contention 8. Applicants' response is set forth infra in answer to that contention.
Mr. Eddleman cites to cost estimates for radioiodine releases in a nuclear emergency which he asserts should have been considered. However, Mr. Eddleman provides no nexus between such figures and the operation of the Harris Plant.
Mr. Eddleman provides no basis for including any such figures in the cost-benefit analysis for the Harris Plant.
l
)
Mr. Eddleman asserts that costs of certain transmission lines should have been included in the cost-benefit analysis.
Transmission line costs are sunk costs (construction costs) and are not costs appropriately considered at the operating license stage which focuses solely on the costs of operating the Harris Plant. Furthermore, the 500 kV power lines described by Mr. Eddleman will not be constructed (because of the cancel-lation of Units 3 and 4) and will no longer be described in the ER after Amendment 3. See Applicants' Response to NRC Staff
" Environmental Report Review Questions" submitted by letter from M. A. McDuffie to H. R. Denton, dated June 3, 1982.
In critiquing the benefit side of the cost-benefit balance, Mr. Eddleman contends that Applicants failed to consider whether the full power output of the Harris Plant will be saleable. This is simply a variation on Mr. Eddleman's need for power contention and an attack on the Commission's regula-tions. See Applicants' discussion at the introduction to this group of contentions.
Mr. Eddleman challenges the choice of a 70% capacity factor used in Applicants' cost-benefit analysis for the full lifetime of the plant. As previously explained, the existing ER cost-benefit analysis will be replaced by an analysis of the differential savings in operating costs alone between the Harris units and other available generating capacity. The new analysis will consider a range of capacity factors and will
~34-
chow that the incremental operating cost savings per kilowatt hour of production are not very sensitive to capacity factor.
Unless Mr. Eddleman revises his contention on capacity factor (incuding the possible effect of steam generator problems on capacity factor) so as to limit his contention to the effect of cepacity factor on incremental operating savings, the conten-tion should be disallowed. Applicants suggest that Mr.
Eddleman wait until Applicants amend the cost-benefit section of the ER and, at that time, if his concerns regarding capacity factor have not been satisfied, to propose a new contention concerning the impact of capacity factor on the incremental system operating cost savings. As we have stipulated pre-viously, Applicants will not argue that such a contention is untimely filed if presented promptly after the ER amendment issues.
In Contention 16 Mr. Eddleman offers his version of an accountant's bottom-line analysis of the Harris Plant. In comparing the costs with his valuation of the benefits, Mr. Eddleman finds the Harris Plant uneconomical. Petition at 76.
We mention in passing that there are numerous flaws in his numbers and analysis. For example, Mr. Eddleman compared the cost of four units with the 25-year - 'l benefit from one unit (annual revenues from one unit is estimated at $280.4 million (ER, Table 8.1.1-1) X 25 years results in Mr. Eddleman's
1 l
banefit figure of $7.010 billion). Thus, even using Mr. Eddleman's methodology, the benefits of the revenues derived from two units when compared to the cost of the two units would result in a very significant net gain.
However, this contention must be rejected not simply because of errors in arithmetic, but more fundamentally because construction costs are not cognizable in operating license proceedings. Construction of the Harris Plant has been authorized and, for purposes of the cost-benefit analysis at the operating license stage, it must be assumed that it will be completed. The sole issue before this Board is whether the plant should be operated. To the extent that economics enter into the cost-benefit balance, they are the economics of operating the Harris units compared to other available generat-ing capacity. See Applicants' discussion supra at the introduction to this group of contentions.
Contention 17 alleges that the NEPA cost-benefit balance is deficient "in not taking into account the fact that, in constant dollars, the cost of Harris Unit 1, and Unit 2 even more, will continue to rise." Mr. Eddleman cites a study by C.
Komanoff, "Powerplant Cost Escalation" in support of this contention. Petition at 78.
For the reasons set forth in response to Contention 16 this contention is not cognizable by the Board in an operating license proceeding. The cost of Harris Plant construction is not an issue in the operating license proceeding.
Contention 18 faults the ER for excluding an analysis of "the cost of repairs, modifications, disposal of nuclear waste including wornout steam generators, lost power production due to power restrictions, and the enviro (nmental) and cocio-economic impacts under NEPA, or radiation exposure to steam generator inspection, modification, repair and replacement personnel, disposal of radioactive waste of steam generators wornout or unuseable before the end of SHNPP's operating life." This contention is based on Mr. Eddleman's assertion that the Harris Plant steam generators are Westinghouse Model D steam generators of a similar design as those installed at McGuire, Summer, Ringhals and Almaraz, since certain Model D steam generators have exhibited vibration flow problems. Petition at 78.
We have opposed infra Mr. Eddleman's Contention 112 that the Harris Plant steam generators should be considered as a safety issue on the ground that Mr. Eddleman fails to provide any basis with requisite specificity for the assumption that steam generators will be subject to major repair and or replacement after operations commence. We oppose this conten-tion seeking to raise steam generators as an environmental issue on the same ground.
Contention 20 asserts that "it is likely that Shearon-Harris Unit 2 will not be completed." Thus, Mr. Eddleman argues that the cost-benefit analysis under NEPA
must consider the benefits of operating Unit 1 only as compared with the cost of Unit 1. Petition at 80.
It is clear from Mr. Eddleman's discussion at Contention 20 that the cost to which he is referring is the construction cost. Mr. Eddleman states: " Cancel Unit 2 and you save only one-third the construction cost, but you lose half the benefits
. . .". Again, this contention is not cognizable in an opsrating license proceeding because costs of construction and the cost-benefit analysis regarding constructing the Plant is not before this Board. Part of Mr. Eddleman's support for this argument is a re-hash of his arguments that the Harris Plant is not needed based on load forecast projections and the ability to reduce need for power by conservation and load management option. Petition at 80-81. These issues are not cognizable in an operating license proceeding for the reasons set forth in l the introduction to this group of contentions.
Mr. Eddleman states his unsupported belief that CP&L "is concealing ... plans to cancel Unit 2." Petition at 81. This
{ '
j simply is not true; Applicants have no intention of cancelling l
Unit 2. Mr. Eddleman has no basis for this assertion but would like to use discovery to fish for some evidence of his hypoth-esis. Apart from questions of allowability of the contention, l
this is impermissible use of discovery. See Applicants' l discussion at Part II.A.2, supra.
Contention 21 is similar to Contention 14. Mr. Eddleman anserts that if the Harris Plant construction were terminated immediately or as soon as practical, CP&L would be able to conserve electricity due to the price elasticity of electricity demand if the " sunk cost of Harris construction to date ...
wore passed on to customers in rates." Mr. Eddleman states that this contention " focuses on the electric energy conserva-tion benefits of terminating Harris Plant construction."
Petition at 83.
Terminating construction of the Harris Plant is outside the scope of the operating license proceeding. Centention 21 also may be characterized as a challenge to the need for power from the Harris Plant, which is an impermissible challenge to the Commission's rules. See Applicants' discussion, supra, at the introduction to this group of contentions.
Contention 22 is, in e.fect, an addendum to Contentions 15 and 16, discussed previously. Mr. Eddleman asserts that the fuel cost estimates in Table 8.2.1-2 of the ER are erroneously low; that the estimates of the payroll at the Harris Plant is suspect; that Applicants' own estimate of benefits of power produced as compared with the cost of producing that power show a net loss; and that the present value of Harris costs still exceeds the present value of benefits by two billion dollars.
Petition at 85.
Disregarding other fallacies in Mr. Eddleman's analysis, ho continues to include in his analysis the costs of construc-tion of the Harris Plant. As indicated in the introduction to this group of contentions, at the operating license stage the cost-benefit analysis used only compares the relative operating costs of the Harris Plant with those of other available generating capacity. Thi.s contention is not, however, cast only in terms of operating costs and is therefore in its present form unallowable.
Contention 23A asserts that "a 3-year delay in both Harris units, on the basis of CP&L's most current load forecast, results in a 32.1% reserve lfar above the 20% needed) in 1992 (and using CP&L's forecast, one can calculate that reserves would then remain above 20% until 1995 or later)." Petition at 87.
Contention 23A is yet another variation on the need for power theme. Mr. Eddleman argues that reserve margins will be sufficient and that there is, therefore, no need for the Harris Plant. For the reasons set forth in Applicants' introduction to this group of contentions, the need for power issue may not be admitted in an operating license hearing. Contention 23A also must be rejected as an impermissible challenge to the Commission's rules.
Contention 23B asserts that Applicants have failed to comply with 10 C.F.R. S 51.21 in that the ER contains outdated information. Petition at 88.
l Applicants concede that revisions to information contained in the ER are required and they are in the process of preparing Amendment 3 to the ER to update some of the information contained therein. However,.Mr. Eddleman's proposed Contention 23B fails to state a contention. Applicants have already filed two amendments to the ER to reflect the cancellation of Units 3 and 4. Certain design changes are required as a result of the elimination of the two units and revisions are being made to i
the FSAR and ER on a timely basis. The information in Sections 8 and 11 of the ER on costs, benefits and environmental impacts is generally up-to-date, but as previously indicated will be amended to show system operating cost savings from the opera-tion of the Harris Plant to be in line with the Commission's new regulations on need for power. Furthermore, Applicants are no longer required to discuss need for power or alternative I
energy sources in the ER. See 10 C.F.R. S 51.21.
Mr. Eddleman contends in Contention 36 that the Staff's environmental impact statement and SER do not give " full and
[
adequate consideration to Class IX accidents and Class X events." Petition at 103.
Contention 36 is not really a contention, rather it is a series of arguments in favor of considering Class 9 events in environmental impact statements. Pursuant to the Commission's Statement of Interim Policy on " Nuclear Powerplant Accident Considerations Under the National Environmental Policy Act of
1969" (45 Fed. Reg. 40101 (1980)), the environmental impact l statements prepared by the NRC Staff "shall include a reasoned consideration of the environmental risk (impacts) attributable to accidents at the particular facility or facilities within the scope of such statement." After the Staff releases its Draft Environmental Statement, Mr. Eddleman may within a reasonable time file proposed contentions based on the new information presented in the Draft Environmental Statement regarding the environmental impacts of Class 9 accidents.
Applicants will stipulate that such contentions will not be challenged as untimely filed and may be admitted by the Board, if found to state an issue with basis and requisite specificity based on such new information, and are otherwise cognizable before the Board in the operating license proceeding.
Therefore this contention is premature. With respect to so-called " Class X" events, see Applicants' Response to Contention 34, infra.
Contention 59 states that the Harris Plant Power output is not needed on the CP&L system. Petition at 158. The reasons that Mr. Eddleman proffers are irrelevant. For the reasons set forth in Applicants' introduction to this group of contentions, Mr. Eddleman may not raise in an operating license proceeding a contention concerning need for power.
Contention 60 asserts that a combination of insulation, conservation, efficiency improvements, solar heating, gas fuel l'
(dorived from both conventional sources and renewables),
alcohol fuels and biomass, and waste heat from existing CP&L-coal-fired power plants are economically and environmentally superior to completion of the Harris Plant. Mr. Eddleman moves tho Board "to (1) suspend Harris construction ASAP; and (2) schedule an expedited hearing on this contention." Petition at 161.
For the reasons set forth in Applicants' introduction to this group of contentions, a motion to suspend the construction of the Harris Plant is outside the scope of the jurisdiction of this Board, and a contention which seeks to litigate alterna-tive energy sources to the Harris Plant is specifically proscribed in operating license proceedings.
At Contention 87 Mr. Eddleman asks the Licensing Board to order the NRC Staff to prepare an evaluation of the psychologi-cal impact on neighboring residents of operating the Harris Plant. Petition at 194.
Applicants are aware that in another operating license proceeding involving the Perry Nuclear Power Plant, Units 1 and 2 (Docket Nos. 50-440 and 50-441), the NRC Staff has taken the t
position on a similar contention that it " anticipates that the Commission will be offering instructions or guidance to Licensing Boards and to the Staff on the matter (of psychologi-1 cal stress]". Thus the Staff suggested that the Perry Licensing Board hold in abeyance its ruling on the
N g l admissibility of a psychological stress contention'"untiL the '
Commission has spoken." Cleveland Electric Illuminating '
Company (Perry Nuclear Power Plant, Units 1 and 2), " Response of NRC Staff to Motion of Sunflower Alliance for Leave to
~
Submit Additional Contentions," (May 25, 1982), at 4. On this ,
basis, Applicants propose that this Board'efer d its ruling on Mr. Eddleman's Contention 87 and provide further opportunity ,
for response after hearing from the Commission. s Contention 88, while cast in terms of cost-benefit, is'I n i substance a challenge to the feasibility of timely evacuation '
of the Harris reservoir in the event of an accident.- Petition; ; .
% .,m at 198. Since Applicants have not yet submitted their'onsite s emergency plan, the contention is premature' . As with other ,
emergency plan issues, Applicants are prepared to stipulate ,
that it will not object on grounds of timeliness to contentions based on that plan if filed within a reasonable period aft'i- e t
its submission. A s w , 'N' l Contention 126 (1st) alleges that the economic cost',of r ,.
n severe accident must be taken into consideration. Petition at 233. In the Commission's statement of interim policy on \ ,s ;'O. ; s s
" Nuclear Power Plant Accident Considerations Under the Nat'ional Environmental Policy Act of 1969" (45 Fed. Reg. 40101 (1980)),
the Commission directed that the Staff consider the envi-ronmental risk (impact) attributable to accidents at a particu-lar facility within the scope of each environmental impact s
\
- m. .i. .
T statement prepared after the Statement of Interim Policy. It is anticipated that the NRC Staff will provide such a reasoned consideration of environmental risks including the probability of occurrence of releases and the probability of occurrence of environmental I consequences of such releases. This proposed contentions is, therefore, premature. See Applicants' Response to, Contention 3,6,, supra.
C. Other snvironmental Issues
- 1. Radiological Monitoring (Contention 82)
Contention 82 claims that Applicants' preoperational environmental. radiation monitoring program is deficient for the following reasons: (1) in failing to provide sufficient sampling points and sampling frequency to determine radionu-clide concentrations from nuclear weapons fallout and other nuclear powe,r plant emissions; (2) in failing to use the same type of monitors during the preoperational and operational phases; (3) in failing to monitor algae in the Harris rese rvoir; and (4) in failing to assure that monitors and test samples will not be contaminated deliberately or accidently.
Petition at IS'8~.-
By way of background, we point out that the preoperational environmental radioactivity' monitoring program was evaluated by the NRC Staff at the construction permit stage. See $$ 6.4 and 6.5 of the Revised Final Environmental Statement (Related to 4
Construction of Shearon Harris Nuclear Power Plant Units 1, 2, 3 and 4), (March, 1974). As a result of the NRC Staff assess-ments of Applicants' radiological monitoring program, addi-tional sampling and analyses were added. Furthermore, the number of monitoring sites and frequency of monitoring at those sites were matters in controversy at the construction permit proceeding. See, in this docket, LBP-78-4, 7 N.R.C. 92, 122 (1978). The Board specifically found that Applicants' radio-logical surveillance program (both preoperational and opera-tional) "is adequate from the standpoint of the number of sampling locations and frequency of sampling." Id. at 123-124.
The preoperational radiological monitoring program is discussed in the ER at S 6.1.5.1. This program has been established in accordance with NRC Regulatory Guides 4.1 and 4.8 and must be consistent with the environmental technical specifications as set forth in NUREG-0472. Table 3.12-1 of NUREG-0472 specifies sample types, numbers and locations of samples, sampling and collection frequencies, and type and frequency of analysis.
Mr. Eddleman provides no basis with requisite specificity for his allegation of insufficient sampling points and numbers of samples. He fails to address the program established in the ER and to indicate specifically which sampling points or sample frequencies that he finds insufficient. Similarly, he provides no basis for the alleged deficiency in the program in not establishing specific concentrations of radionuclides in the air with certain continuous reading monitoring equipment that he has proposed in Contentions 1 and 2. See Applicants' Response to Conter,tions 1 and 2 infra. Nor does Mr. Eddleman provide any basis for arguing that algae and other lower forms of life in thr, Harris Reservoir are not sufficiently monitored.
Tha vagueness of his allegations of deficiencies simply does not put Applicants on notice as to what sampling program he would believe is required and why he contends that Applicants' program as set forth in the ER does not provide a statistically reliable base line concentration of radionuclides. Finally, the question of accidental or deliberate contamination of sampling points is not a litigable contention. Mr. Eddleman provides no basis for his suggestion that anyone would de-liberately or accidently " seed" a test sample; nor has he suggested how such contamination, even if it occurred, would adversely affect the monitoring program.
Contention 82 must be rejected as one based on unfounded allegations of deficiencies and unsupported speculation regarding future events. There is no requirement for Appli-cants to dwell on " remote and speculative" potential envi-ronmental impacts. Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974).
- 2. Impacts on Fish (Contentions 83-86)
Contention 83 alleges that the chemicals discharged from tha cooling tower blowdown would adversely affect fish, benthic and aquatic life in the Harris Plant reservoir and the Cape Fcor River. Mr. Eddleman asserts that Applicants have insuf-ficiently considered (1) the impact of overflow from CP&L's.
waste water treatment operation onsite; (2) the sensitivity of fish, benthic and aquatic life forms to chemical discharges from the cooling towers; and (3) the biological concentration of cooling tower blowdown chemicals and the reaction products in the food chain of the reservoir and Cape Fear River.
Petition at 190. Contention 84 asserts that the environmental impact statement is deficient in not taking into account the carcinogenic and toxic effects of chemicals from the cooling tower blowdown interacting with other chemical pollutants in the Cape Fear River. Mr. Eddleman argues that these toxins and carcinogens could concentrate in fish and other food species eaten by persons and could result in adverse impacts on public health. Petition at 190. Contentions 85 and 86 allege that inadequate consideration has been given to fish kills due to hot water discharged into the Harris Plant reservoir and that appropriate measures to prevent or minimize fish kills have not been taken. Petition at 192.
Both chemical discharges from the cooling tower blowdown and thermal discharges to the Harris Plant reservoir have been considered in detail by Applicants and by the NRC. The chemical and thermal releases to the Harris Plant reservoir, based on the operation of four units, was analyzed by the NRC Staff at the construction permit review in the Revised Final Environmental Statement at 5 5.4.3. The impacts of blowdown chemicals and thermal discharges were also considered by the Atomic Safety and Licensing Board at the construction permit stage. See 7 N.R.C. at 114-15, 133-34. The Board there found that the impact of chlorine releases from the cooling tower blowdown (chlorine being the principal chemical discharge) would be rapidly diluted. Furthermore, the Board found that the state of North Carolina, pursuant to the Federal Water Pollution Control Act, had issued to CP&L a certification that the discharge resulting from construction and operation of the Harris Plant would not violate Sections 301, 302, 306 and 307 of the Act. Id. at 115. The Board also found that there would be no significant adverse effects upon the ecosystem of the reservoir based on thermal discharges. Id. at 133-34.
The chemical and thermal discharges for the two units of the Harris Plant are discussed in the ER at S 5.3. Chemicals discharged in the blowdown will meet NPDES standards set forth by the State for the protection of aquatic life. See ER at 3.3-4. The treatment of waste water and evaluation of the effects of the discharge of waste water are discussed in the ER at S 5.4. The temperature tolerance for fish in the Harris Plant reservoir is found in Table 5.1.3.1 of the EP. It is clear from all of the above that the impacts on fish and other benthic and aquatic life forms from chemical and thermal discharges from the Harris Plant will be insignificant. Mr.
Eddleman has not dealt with the substantial amount of informa-tion provided by Applicants that addresses this issue. He has not provided any basis with requisite specificity to support any contention proposed with respect to the effects of chemi-cals and thermal discharges on fish and other aquatic life and thus all four contentions must be rejected.
- 3. Mixing and Discersion Model (Contention 80)
At Contention 80 Mr. Eddleman asserts that the mixing and dispersion models for radioactive liquid and other radiological releases from the Harris Plant are deficient "in that they assume more complete mixing and dispersion of such radionu-clides released than will actually take place." Petition at 188. The mixing and dispersion models used by Applicants are described in the ER at 5 5.2.2. The models used are those specifically approved by the NRC. See NRC Regulatory Guides 1.109 and 1.113. Mr. Eddleman provides no basis with the requisite specificity to support the allegation that the models used are deficient. The only specific assertion is that the
models take insufficient account of rainout. As Mr. Eddleman uses the term, " rainout" means rain precipitating the radionu -
clide plume onto the ground. By removing radioactivity from the air, the most sensitive pathway, and transferring it to a loss sensitive pathway, the potential for health impacts are diminished. FSAR 55 5.2.1.2.1, 5.2.1.2.2, and Table 5.2.5-1. ,
l Contention 80 fails to state a contention with basis and requisite specificity.
- 4. Wildlife Habitat (Contention 98)
Contention 98 asserts that Applicant should be required to provide wildlife habitat to replace that~ destroyed by the construction of the Plant. Petition at 206. Mr. Eddleman asserts that the wildlife habitat destroyed was "some of the l best in the area according to NC Wildlife Personnel". As discussed in the ER at S 2.2.1.2, the wildlife habitat in the Buckhorn - White Oak water shed (site of the Harris Plant) was generally conceded to be of below average quality. This
, evaluation was initially based on a U.S. Bureau of Fishery and Wildlife Survey of 1969.
There is no requirement of Applicants to restore the wildlife habitat to its original status or to compensate for the destroyed habitat by creating other wildlife habitat.
Contention 98 does not present an issue cognizable before this Board in an operating license proceeding.
- 5. Site Holea (Contention 90)
Contention 90 asserts that the environmental impact otstement is deficient in not including the cost of measures to rostore the Harris Plant Units 3 and 4 reactor site holes both during Harris Plant operation and after the Harris Plant has bocn decommissioned. Petition at 199. The costs associated with terminating construction of Units 3 and 4 are not an issue bafore this Board in a proceeding regarding operating licenses for Units 1 and 2. The cost associated with restoring the site holes are not in any way a cost associated with or resulting from the operation of the Harris Plant Units 1 and 2. Even if such costs were construed to be associated with operation of the Harris Plant, it is unclear what Mr. Eddleman would have us do with this information once it was presented to the Board.
There is clearly no basis for suggesting that the additional cost of restoration of the site holes might significantly reduce.the system cost savings of operation of Harris Units 1 and 2. See Applicants' discussion at the introduction to section II.B. This issue is simply not cognizable before this Board.
- 6. Ocean Dumping of Low-Level Waste (Contention 12)
At Contention 12, Mr. Eddleman states that " Applicants' FSAR, ER, the SER and ES do not properly include the l
l cnvironmental effects of dumping low-level radioactive waste >
produced at SHNPP into the ocean . . .." Mr. Eddleman claims a that this issue is relevant because the state of North Carolina is not now a member of any radioactive waste disposal compact and has no land burial facility for low-level radioactive waste. Petition at 61.
Ocean dumping of low-level waste is not contemplated by Applicants. Thus, consideration of the environmental effects of such an action is not required because NEPA contemplates dealing only with circumstances "as they exist and are likely to exist" (Carolina Environmental Study Group v. United States, 510 F.2d 796, 801 (D.C. Cir. 1975); " remote and speculative" possibilities need not be explored, Life of the Land v.
Brinegar, supra). With respect to the availability of low-level waste repositories, see Applicants' Response to Eddleman Contention 67, infra. Mr. Eddleman has provided no basis with the requisite specificity for consideration in this proceeding of the environmental effects of ocean dumping of I
l low-level radioactive waste.
- 7. Miscellaneous Information Request (Contention 109)
Proposed Contention 109 is not a contention at all. It simply states that Applicants' ER and other existing reports do not provide sufficient information in six areas: (1) chemicals to be released into the Harris Plant reservoir; (2) nature of pollutants to be found in the Cape Fear River; (3) temperature tolerance limits for all significant fish species in the Harris Plant Reservoir; (4) actually measured background radiation lovels around the Harris Plant on a statistically reliable basis; (5) data on the environmental impact of uramium mining; and (6) actually measured radionuclide releases from operating PWRs, including V.C. Summer. Petition at 217.
In fact, relevant information that Mr. Eddleman alleges is not available has been provided. Chemicals to be released into the Harris Plant reservoir are set forth in Tables 3.6.2.1 and 3.6.2.2 of the ER. Given the minimal amount of flow from the reservoir lato the Cape Fear River and the significant dilution of any chemicals discharged from the Harris Plant in the reservoir prior to reaching the Cape Fear River (see FSAR S 2.4.2.3.2.1), there is no basis for evaluating the nature of pollutants found in the Cape Fear River. Mr. Eddleman has not suggested any specific interaction or provided any basis for an interaction which he contends could be hazardous. The tempera-ture tolerance for fish in the Harris Plant reservoir is found in Table 5.1.3.1 of the ER. The actual background radiation levels in radionuclide concentrations around the Harris Plant will be determined pursuant to the preoperational radiological monitoring program as approved by the NRC Staff. See also Applicants' Response to Eddleman Contention 82, suora. Since the V.C. Summer Plant is not yet operating, actually measured rcdionuclide releases from that Plant would be difficult.to obtain at the present time. Furthermore, there is no basis provided for the need to determine radionuclide releases from other nuclear power plants. Applicants note that information on effluent re:'ases from all operating PWRs is submitted periodically to the NRC. See FSAR S 6.9.1.6 (requirement for filing radiological environmental monitoring reports).
D. Health Effects (Contentions 8, 37, 61, 62)
Mr. Eddleman's contentions on radiological health impacts fall into two categories. One is the health effects associated with the uranium fuel cycle. These are the subjects of Contention 8. The other is the health effects associated with radiation releases in the course of normal operation of the Harris plant. These are covered by Mr. Eddleman's Contention
- 37. Before addressing these two contentions and their subsets we address the principles applicable to each category of contentions.
Since fuel cycle activities are not within the scope of the Board's health and safety responsibilities under the Atomic Energy Act in this proceeding, they are cognizable only under NEPA as an environmental impact, indirectly associated with the operation of the Harris plant, which is to be taken into account in the NEPA cost-benefit balance. The Commission has established certain numerical values by regulation in
promulgating Table S-3, and they are not subject to challenge in individual licensing proceedings. However, the health effects associated with these numerical values have not been proscribed by regulation and-may be put in issue in individual licensing proceedings. See 10 C.F.R. 5 51.20, Table S-3 at n . 1. Applicants are aware that the U.S. Court of Appeals for the District of Columbia Circuit has remanded the Table S-3 rule to the Commission for further consideration. See Natural Resources Defense Council v. NRC, No. 74-1586 (D.C. Cir., April 27, 1982). However, the mandate of the Court of Appeals has not been issued and Applicants understand that NRC will appeal the Court's decision. In the absence of contrary directions from the Commission, the numerical values of Table S-3 remain binding on the Board.
With respect to the radiological impacts of plant l effluents from normal operation, the Commission has, in adopting Appendix I to 10 C.F.R. Part 50, established permissi-l ble effluent release rates. These release rates are not l
subject to challenge in ind.1vidual licensing proceedings, whether through attacks on the health effects of such releases or otherwise. Intervenors may, however, question whether the health effects from these releases have been properly consid-ered in the NEPA cost-benefit analysis. Like the health effects associated with the uranium fuel cycle, the Commission has not by regulation quantified the health effects of Appendix G
I releases. However, in this area an intervenor's burden of providing a basis for a contention and of alerting the other parties to that basis is particularly important. The Commission has stated that continual relitigation of the health effects of radiation "when there is no serious contest as to l the result" should be avoided, given the thorough consideration I
of this issue in the Appendix I rulemaking. Public Service Company of Oklahoma (Black Fox Station Units 1 and 2)
CLI-80-31, 12 N.R.C. 264, 277 (1980). Rather, official notice of the Appendix I record should be taken by a licensing board.
An intervenor therefore must come forward with specific evidence challenging that record.
We turn now to a specific discussion of Mr. Eddleman's health effects contentions.
Eddleman's proposed Contention 8 is a disparate radiolog-ical health effects contention relating to the uranium fuel cycle. Petition at 50-51. Applicants object to the admission of this contention. _
Proposed Contention 8(a) states that the Applicants' and the Staff's safety and environmental reports (FSAR, SER, ES, _
EIS and ER) are deficient because they do not comply with the recent NRDC decision. This extremely vague contention fails to meet the specificity requirements of 10 C.F.R. & 2.714(b);
Applicants have no idea what Mr. Eddleman would require of us or of the Staff. Furthermore, as stated above, until the
}
Commission states to the contrary, Table S-3's values remain fully applicable. Contention 8(a) therefore should be rejec-ted.
Proposed Contentions 8(b) through 8(e) are based on the premise that the health effects of the uranium fuel cycle set out in Table S-3 "need to be taken into account" regardless of the final outcome of the NRDC case. Applicants do not dis-l agree. Applicants also agree that, in keeping with the 1
Commission's regulations, health effects resulting from the l
uranium fuel cycle have not been included in the ER. Under NRC regulations (10 C.F.R. 6 51.20) Applicants need not evaluate health effects associated with Table S-3 numerical values but may elect, as Applicants have elected, to depend instead on the NRC Staff's evaluation. The NRC Staff is required in its environmental statement "to take account of dose commitments and health effects from fuel cycle effluents set forth in Table S-3." 10 C.F.R. S 51.23(c). The Staff's environmental statement has not yet been prepared and Mr. Eddleman's conten-tions attacking the adequacy of their health effects evaluation is premature. When the Draft Environmental Statement is issued, Mr. Eddleman will have the opportunity to submit within a reasonable time thereafter, without timeliness objections by Applicants, any properly framed contentions he may propose with respect to the Staff's evaluation.
Contention 37 is a massive radiological health effects contention relating to normal plant operations. Petition at 105-121. Applicants will treat in seriatim the specific issues, identified as (a) through (j) and (9) and (10) in Contention 37. We ignore, here, the introductory section to this contention, which appears to be a summary of what follows.
In Contention 37(a), Mr. Eddleman seeks first to litigate psychological stress, which he defines as " fear of radiation-induced cancer or genetic damage or disease." Applicants rely here on our response to Eddleman proposed Contention 87, supra.
The remainder of his contention depends largely on his allega-tion that the number of cancer victims has been underestimated, a subject covered in following subcontentions.
Proposed Contention 37(b) asserts "the work of I.D.J.
Bross (Ph.D.), Rosalie Vertell (Ph.D.) and others" show that radiation exposure increases the risk of cancer and other diseases to a degree not recognized by the NRC Staff or BEIR report. Petition at 106. This basis for Contention 37(b) is insufficient. As Applicants stated in their response to Kudzu's Contention 1, not only must a contention generally provide "with reasonable specificity" the grounds on which it is based but, in particular, in the case of radiological health effects, an intervenor must aver evidence which would support a licensing board adjudicating matters already fully aired in the Appendix I rulemaking proceeding. 10 C.F.R. 5 2.714(b); Public
Service company of Oklahoma (Black Fox Station, Units 1 and 2),
CLI-80-31, 12 N.R.C. 264, 277 (1980). Broad claims of increased cancer risks from unspecified exposures, supported only by general references to unidentified works of even named individuals, not to mention other unnamed individuals, fail to meet either the basis requirement of 10 C.F.R. 5 2.714(b), or the Commission's policy statement in Black Fox.
Proposed Contention 37(c) challenges the estimates of cancer and genetic-damage from radiation provided in the BEIR-III Report, the 1980 report of the National Academy of Sciences' Committee on the Biological Effects of Ionizing Radiations, entitled, "The Effects on Populations of Exposure to Low Levels of Ionizing Radiation." Petition at 106-107.
Mr. Eddleman relies here on "the work of Mancuso, Stewart, Kneale, John Gofman, K. Z. Morgan and others" to establish BEIR-III's (i) incorrect understanding of latency periods for cancer; (ii) consideration only of expressed dominant genetic defects, rather than recessive genetic defects; and (iii) failure to use a "supralinear response" rather than a so-called threshold or linear-or-less model to determine low level radiation effects. Id. Applicants would not object to the contention if it is limited to the three topics identified.
Any greater breadth accorded this contention would violate the basis and specificity requirements of 10 C.F.R. S 2.714(b) u _ . _ _ .
Contention 37(d) cont ends that the AEC conducted " highly d
biased, unscientific ' experiments'," under pressure," which g
led to the underestimation of the ecological and biological concentrations of radioactive elements in microorganisms and plants. Petition at 107. Mr. Eddleman lists several allegedly improper and biased accions which he believes the AEC took --
apparently in connection with nuclear fallout tests -- on which ho alleges NRC's absorption rates are based. No references are provided to support these all.egations. Nor is reference made to the NRC calculations to which Mr. Eddleman apparently objects. Mr. Eddleman does refer to the so-called Heidelberg study, NRC Translation 520; however, it is unclear how this reference relates to his specific allegations of AEC wrongdoing in connection with nuclear fallout tests.
Applicants object to the vagueness of this contention, which does not adequately notify the parties of the contention Mr. Eddleman seeks to litigate here, or the basis for the contention. Accordingly, the Board should reject Contention 37(d).
Proposed Contention 37(e) appears to allege that the NRC and CP&L have systematically avoided, prevented, suppressed, attempted to suppress, covered up, ignored or otherwise unscientifically and biasedly treated data that does not accord with the nuclear industry position on radiation health effects.
Petition at 108. Several examples are provided by Mr. Eddleman to support this contention.
In Applicants' view, this contention is not a radiological health effects contention at all and does not relate to
.oporation of the Harris plant. It seeks to litigate allegedly improper conduct of the NRC Staff in representing to the public its expert opinion as to the health effects of radiation, and tha conduct of CP&L in one alleged instance involving the release of strontium-90 at Brunswick nuclear plant. The contention should be dismissed. It is not the function of this Board to investigate the general conduct of NRC employees. As it relates to CP&L, the contention as stated provides no nexus between the alleged incident at Brunswick 14 and Applicants' oporation of the Harris plant.
Proposed Contention 37(f) asserts that insufficient consideration has been given to the greater radiation effects resulting from internal emitters due to incorrect modeling of internal absorption of radionuclides, and underestimation of the health "and genetic" effects of alpha, beta and neutron radiation on DNA, cells' membranes and enzyme activity.
Various articles published since the Appendix I proceeding are cited to support this contention. Applicants do not object to the litigation of Contention 37(f).
14 It is not even clear what the cited incident at Brunswick has to do with the suppression of radiation health effects data.
Proposed Contention 37(h)l5 states that health effects have been looked at over an " arbitrarily short period compared to the time when the radionuclides will actually be causing health and genetic damage," ' referring to papers by Dr. Helen Caldicott and Dr. Gofman. Petition at 109-110. A hypothetical cxample is given, where a plutonium atom enters Mr. Eddleman's lung, causes cancer that kills him, escapes his coffin after 300 years, enters ground water, is swallowed by a' child "who then gets a genetic defect from the U-235 atom the Pu-239 has decayed into, and so on down the decay chain." Id. at 110.
Applicants do not object to the admission of Contention 37(h) on the understanding that the contention challenges the Commission's expert opinion, which led to the Appendix I criteria, of the health effects of low levels of radiation, based on more recent analyses by Dr. Caldicott and Dr. Gofman.
Contention 37(h) incorporates by reference pages 112 and 113 of Mr. Eddleman's Petition, which delves into completely different topics.. Applicants will address these other topics separately as Contentions 37(k) and 37(1), respectively.
Contention 37(i) is not a contention -- no allegation concerning the Shearon Harris facility is made by Mr. Eddleman.
-Consequently, this paragraph should be disallowed. See Eddleman Supplement at 110-111.
15 There is no Contention 37(g).
Contention 37(j) is also not a contention, but rather a legal argument that failure to consider Mr. Eddleman's pre-viously raised health effects contentions violates the Constitution, the Atomic Energy Act ("AEA"), and NEPA.
Applicants object to litigation of health effects in any context other than NEPA. Contention 37(j) is not necessary to allow Mr. Eddleman to make any legal arguments he sees fit in support of other contentions and should be dismissed.
In proposed Contention 37(k), listed as (9) in Mr.
Eddleman's Petition at 112, Mr. Eddleman asserts that NRC's and Applicants' radionuclide concentration model is inadequate bacause it underestimates or excludes the following means of concentration of radionuclides in the environment: rainout of radionuclides or hot spots, radionuclides absorbed in or attached to fly ash from coal plants which are in the air around the SHNPP site, and incomplete mixing and dispersion of radionuclides. Applicants do not object to the admission of this contention.
Proposed Contention 37(1) asserts that in computing radionuclide concentrations in the environment, less reactive rather than more reactive forms of radionuclides are used in the computation, certain radionuclides are ignored, and there aro "other erroneous computing, statistical and scientific procedures." Petition at 113. Applicants do not object to the initial portion of Contention 37(1), but would object to the
inclusion of an all-encompassing vague allegation of "other erroneous . . . procedures." Mr. Eddleman, at the end of this contention, makes allegations about the adequacy of monitoring by both CP&L and the NRC. These allegations are framed, however, as support for his allegations about radionuclide concentrations and are not a separate contention. In Applicants' view, these monitoring allegations simply obfuscate the initial assertion.
Applicants do not object in principle to Eddleman proposed Contention 61A, which seeks to litigate the health effects of radon emissions during the nuclear fuel cycle. See, however, Applicants' response to Contention 8, which suggests that contentions based on fuel cycle health effects are premature.
Eddleman proposed Contention 61B is extremely confusing.
Petition at 165. First, it challenges NRC and Applicant's assessment of the health effects of nuclides, including radon, generated over the course of the nuclear fuel cycle. Here, Mr.
Eddleman refers to Radon-222, U-238, U-235 and other nuclides in Table S-3. Next, reference is made to Th-230, Ra-226 and Rn-222 in the context of NUREG-0889, Tables 2.13 and 8. But NUREG-0889, antitled " Steam Generator Tube Experience," has no relevance. Third, Mr. Eddleman refers to Tables 8 and 10 of Regulatory Guide 3.51, which is entitled, " Calculational Models for Estimating Radiation Doses to Man from Airborne Radioactive Materials Resulting from Uranium Milling Operations," March, 1982. Table 10 shows continental population doses per kCi of Radon-222 released in 1978, but has no data on health effects.
None of the references sheds any light on what Mr. Eddleman is seeking to litigate here.
Applicants object to Contention 61B. The health effects of radon are already the subject of Contention 61A. As this muddled contention now stands, it is so lacking in clarity as to utterly fail to meet the specificity requirement of 10 C.F.R. 5 2.714(b).
Proposed Contention 62 charges that Applicants have not taken appropriate measures, including campaigns to stop people from smoking, to reduce the impact on health and environment (e.g., lung cancer) from Table S-3 via means suggested by K. Z.
Morgan, "et al.," such as chemically removing.and isolating hazardous nuclides from uranium tailings, isolating the tailings, preventing wind access to mill tailings from uranium milling, "etc." Petition at 165. Contention 62 should be rejected. There is no legal basis (or practical means) to take actions to reduce the impact on health and environment from the Table S-3 effects of the uranium fuel cycle, activities entirely outside its control. The " measures" which Mr.
Eddleman would require are outside the scope of this pro-ceeding.
e I
1
E. Waste Storage and Transportation l
Applicants' operating license application includes a rcquest for " authorization to store source, special nuclear, l and byproduct material irradiated in the nuclear reactors licensed under DPR-23, DPR-62, and DPR-71 and subsequently trcnsported to the Shearon Harris Nuclear Power Plant site."
Tha three referenced licenses are for CP&L's three operating nuclear power reactors -- Robinson Unit 2 and Brunswick Units 1 and 2. Mr. Eddleman raises a number of contentions regarding spsnt fuel storage and spent fuel transportation. We turn first to a discussion of what is properly before the Board concerning this issue.
Applicants seek authority to receive and store spent fuel from other CP&L facilities at the Harris Plant. Such a request is part of the application for an operating license and the Board has jurisdiction to entertain contentions raised with respect to that application. See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
CLI-76-1, 3 N.R.C. 73, 74 n.1 (1976), and Catawba, supra, "NRC Staff Response to Board Questions on Spent Fuel Storage and Operator Qualifications," dated April 5, 1982, at 15-16.
Applicants and the NRC must take into consideration, with respect to this license application, the health, safety and environmental impacts (if any) of the expanded spent fuel storage (which is limited by the present design capacity of the pools which were intended to be adequate for the spent fuel j l
from four units). Applicants' FSAR includes a discussion of the design of the spent fuel pools at the Harris Plant and the storage of spent fuel (both BWR and PWR) up to the maximum capacity of the two inter-connected pools. FSAR at 59.1.
Applicants' ER addresses the environmental impacts associated with normal plant operations (55.0), which include storage of spent fuel in the Harris Plant pools, and the environmental impacts associated with accident conditions (67.1).
Furthermore, these impacts have been considered often by the Commission both in individual licensing proceedings and generically. See e.g., Table S-3 to 10 C.F.R. S 51.20; U.S.
N.R.C., Final Generic Environmental Impact Statement on Handling and Storage of Scent Light Water Power Reactor Fuel (NUREG-0575)(August 1979), Vol. 1, Section 3.2.1, pp. 3-22 to I 3-27.
l' Applicants are not seeking authority to transship spent fuel from Robinson Unit 2 and Brunswick Units 1 and 2 to the Harris f
Plant. CP&L already has authority, by virtue of its licenses to operate the Robinson and Brunswick plants, and by virtue of the l
general license conferred on it by 10 C.F.R. S 70.42(b), to l
transfer the spent fuel "to any person authorized to receive such special nuclear material under terms of a specific license or a general license or their equivalents. . . ." Thus, any proposed i - - _
contentions concerning transportation of spent fuel from Robinson and Brunswick are not properly before this Board.
With respect to the health, safety and environmental impacts of the transportation of spent fuel from the Harris Plant (including the additional fuel transshipped from Robinson end Brunswick) such shipments must comply with the stringent safety and other requirements which have already been prescri-bed by the Commission (10 C.F.R. Parts 71 and 73). Spent fuel shipments must also comply with Department of Transportation
(" DOT") requirements covering the packaging and movement of radioactive materials (49 C.F.R. Parts 171-79). The envi-ronmental impacts of shipments of spent fuel are established by rule at Table S-4 to 10 C.F.R. S 51.20. With respect to the possible sabotage of a spent fuel shipment, the Commission has imposed by rule routing and physical security requirements on spent fuel shipments. 10 C.F.R. S 73.37. In adopting these requirements, the Commission " reaffirm [ed) its judgment that spent fuel can be shipped safely without constituting unrea-sonable risk to the health and safety of the public." 45 Fed.
Reg. 37403 (1980). See Duke Power Company (Amend. rent to Materials license SNM-1773 -- Transportation of Spent Fuel from Oconee Nuclear Station for storage at McGuire Nuclear Station),
ALAB-651, 14 N.R.C. 307, 319 (1981).
In summary, transportation of Robinson and Brunswick spent fuel to the Harris Plant is not a cognizable issue before this Bonrd because Applicants already have authority to transport Robinson and Brunswick spent fuel. Health and safety aspects of spent fuel- transportation from the Harris Plant are not bafore this Board because Applicants' do not here seek a license to transport spent fuel. Transportation is subject to the joint regulatory structure mandated by the NRC and DOT. )
. l Environmental impacts of such transportation from the. Harris l Plant are properly considered but have already been dealt with ganerically in Table S-4. Health and safety and environmental aspects of spent fuel storage (including storage of Brunswick and Robinson spent fuel) at the Harris Plant are discussed in dstail in the FSAR and ER.
Mr. Eddleman also proposes contentions regarding the assurance of storage and disposal sites for low-level and high-level radioactive wastes. Such contentions are challenges to '
existing laws or proposed rulemaking and, as will be discussed below, are not cognizable in this proceeding.
- 1. Spent Fuel Transportation and Storage at Harris Plant (Contentions 24-28, 64, 126 "X")
The contentions proposed by Mr. Eddleman on spent fuel l
storage and transportation are generally not cognizable before l
the Board in this proceeding because they raise issues outside of the scope of the operating license or they constitute a collateral attack on the Commission's rules. Mr. Eddleman has not complied with the requirements of 10 C.F.R. $ 2.758 in sacking a waiver of the application of any regulation to this proceeding.
Contention 24 suggests that shipments of spent fuel from Robinson Unit 2 and Brunswick Units 1 and 2 will be " inimical to the common defense and national security in that such shipments provide an excessive number of tempting targets for terrorists." Mr. Eddleman provides us with a list of weapons and sabotage techniques which he baldly asserts are "well within the capability of small groups or terrorists comprising only a handful of individuals." Mr. Eddleman contends that such a terrorist campaign could endanger the health and safety of the public and the surrounding environment. Petition at 89.
Contention 25 argues that "because of the unwarranted risk of terrorist activity posed by such (spent fuel shipments from Robinson and Brunswick to Harris] which provide numerous almost indafensible targets over long routes in a long period of time for multiple spent fuel shipments", an alternative posing less environmental impact needs to be considered. Mr. Eddleman lists various alternatives including reracking of spent fuel pools, expansion of onsite spent fuel pools, and onsite storage for the operating life of the Plant and disposal in a final repository after transportation in "one extremely well guarded and completely unpublicized unit train." Mr. Eddleman contends that it is "not enough to say the impacts fall within Table S-4
~
w.
x ;
/ >
e ,,
limits -- you have to say why, prove it, and alse prove that other alternatives are not environmentally superior under NESA ,
- s..,
or superior under the common defense provision of the '
Constitution." Petition at 89-91.
As discussed above, the transportation of spent fuel from v.
Robinson and Brunswick to the Harris Plant is not'an issua ' \
before this Board. Beyond that Mr. Eddleman provides no b, asis whatsoever for his " spy novel" scenarios for a terrorist attack on spent fuel shipments. He provides no explanation for ..
g . i presuming the Commission's regulations on physical security D requirements for spent fuel storage will not be adequate.
Thus, these contentions are inadmissible also because they- - -4
, n would constitute an impermissable attack on 10 C.F.R. $ 73.37.
Mr. Eddleman's premise in attacking Table S-4 is incor-rect. Table S-4 to 10 C.F.R. S 51.20 summarizes the envi-ronmental impacts of transportation of fuel and waste;to and' from one light-water cooled nuclear power reactor.
Applicants ~
need not prove that the environmental impacts of transportatione summarized in Table S-4 are those that will result from shipments from the Harris Plant; Table S-4 was established generically by Commission rule for use in all NRC licensing proceedings. Furthermore, where there are no significant environmental impacts from the proposed action, the Commission need not consider possible alternatives. Duke Power Company, '-
suora, 14 N.R.C. at 321; Portland General Electric Company
(Trojan Nuclear Plant), ALAB-531, 9 N.R.C. 263 (1979); accord, Virgini,a Electric & Power Company (North Anna Nuclear Power I
. Station, Units 1 and 2), ALAB-584, 11 N.R.C. 451, 457-58 (1980); Public Service Electric and Gas Company (Salem Nuclear 1 Generating Station, Unit 1), ALAB-650, 14 N.R.C. 43, 65 n.33 (1901).
For all of these reasons, Contentions 24 and 25 are not 4 acceptable contentions.
Contention 26 argues that the storage of spent fuel from Robinson and Brunswick at the Harris Plant would "be inimical to the common defense and public health and safety in that it would provide more radioactive material to be released by a terrorist attack on the spent fuel building at Harris." Mr.
Eddleman incorporates in this contention the means of terrorist attacks that are listed in Contention 24. Petition at 91.
Mr. Eddleman provides no basis with the requisite spe-cificity regarding the likelihood of the terrorist attacks that the fabricates in this contention. Beyond that, the use or deployment of certain of the weapons described in Contention 24, and incorporated by reference in Contention 26, are not to be considered in designing either a nuclear power plant or measures for the purpose of protection against sabotage. See 10 C.F.R. S 50.13; Applicants' Response to Contention 24.
Thus, Contention 26 must be rejected both as an impermissible
, attack on the Commission's rules and for its failure to establish any basis for its premise.
1
Contention 27 repeats aspects of Contentions 24, 25 and 26 and alleges that the Staff's environmental impact statement is doficient in not considering the environmental impacts of terrorism against spent fuel.in transit or stored at the Harris Plant. The Staff's Draft Environmental Statement should not spccifically consider impacts of terrorism against spent fuel in transit or stored at the Harris Plant for all of the reasons set forth in Applicants' Response to Contentions 24, 25 and 26 and the introduction to this group of contentions. In this Contention, Mr. Eddleman asserts that the Staff must consider the " sociological impacts of such terrorism and the threat of it." Petition at 92. The Appeal Board has specifically found that there is no duty on the Commission to consider "the political and social impacts" of spent fuel shipments and storage. Duke Power Company, supra, 14 N.R.C. at 317.
Contention 27 must also be rejected.
Contention 28 argues that Applicants' request for "such licenses as necessary to ship spent fuel from Brunswick and Robinson . . . to Harris and store it at Harris should be i
denied because such request is overly broad, vague, unlimited as regards the amount of fuel to be shipped." Petition at 92.
As previously stated, transportation of spent fuel from Robinson and Brunswick is not at issue. As to storage, the total amount of spent fuel that can be stored at the Harris Plant spent fuel pools is limited by.their total capacity as doncribed in the FSAR at section 9.1. Although Applicants are not in a position to specify the exact amount of spent fuel which will be transshipped from Robinson and Brunswick and stored in the Harris Plant (in part because the quantity transshipped will be dependent on the development of federal policies regarding reprocessing, interim spent fuel storage and disposal of spent fuel and high-level radioactive wastes), the FSAR and ER analyze the health, safety, and environmental impacts of operations with up to full spent fuel pools. Thus the ESAR and ER analyses bound the range of potential impacts.
Contention 64 consists of a series of assertions regarding the increased probability of an event, or potential for increased damage as a result of an event, due to additional storage of spent fuel from Robinson and Brunswick at the Harris Plant. Petition at 167. Contention 126 "X" states that Applicants' ER fails to provide a detailed analysis of the environmental impacts of spent fuel transportation and to factor such costs into the cost-benefit balance. Petition at 233. In general, Mr. Eddleman fails to provide any basis with the requisite specificity for the events suggested in these contentions. Beyond that, in a number of instances the contentions are a challenge to the Commission's rules regarding the storage or transportation of spent fuel.
At Paragraph (a) Mr. Eddleman asserts " storage of nuclear fuel during construction increases the risk that it will be 4
sebotaged." Mr. Eddleman provides no basis with the requisite specificity for this assertion.
Mr. Eddleman asserts that additional storage of spent fuel at the Harris Plant would result in " increased damage due to a loss of coolant or melting of the spent fuel pool at Harris."
At Paragraph (b) Mr. Eddleman suggests that the potential damage from a spent fuel pool lose-of-coolant accident at Harris " induced by plane crash, terrorism or sabotage" is greatly magnified by the presence of the Robinson and Brunswick spent fuel. Mr. Eddleman provides no basis with the requisite specifity for his assumption that such plane crash, terrorism or sabotage will occur, or that any other loss-of-coolant accident will occur. The design basis for spent fuel storage includes both maximum storage of both PWR (Harris and Robinson) and BWR (Brunswick) spent fuel. FSAR S 9.1.2. The fuel pool cooling system with redundant means of ensuring cooling water is addressed at FSAR section 9.1.3. Mr. Eddleman fails to address the safety analysis which demonstrates that the spent fuel will always be covered with water. FSAR S 9.1.3.3.
At Paragraph (c) Mr. Eddleman states that additional handling and transport of such spent fuel multiplies the i
probability of a fuel handling accident. Fuel handling accidents at Brunswick and Robinson are outside the scope of this proceeding. The Harris Plant fuel handling system is described at FSAR S 9.1.4. The system is designed to handle Robinson and Brunswick spent fuel. Accidents involving fuel handling have been analyzed in the ER at section 7.1.10, including an accident involving Brunnwick spent fuel. The results of such an accident are inconsequential. Mr. Eddleman has not challenged this analysis, nor the safety analysis in the FSAR. He has not presented the basis for a contention that a safety or environmental issue is involved in additional fuel handling.
At Paragraph (d) Mr. Eddleman indicates that the risk and probability of transport accidents for spent fuel are increased by transshipments to Harris. The health and safety impacts of transportation of spent fuel are not cognizable in this proceeding for the reasons set forth above. Contrary to the assertions in paragraph (d) and in Contention 126 "X", since Table S-4 to 10 C.F.R. 5 51.20 summarizes the environmental impacts of spent fuel transportation to and from one light-water cooled nuclear power reactor, the values in Table S-4 would overstate the environmental impacts of the transportation of Robinson and Brunswick spent fuel from the Harris Plant after storage. If we assumed that all spent fuel from Brunswick and Robinson (3 units) was temporarily stored at the Harris Plant and then transported from Harris (a highly improbable scenario), then the to'~al environmental impacts from transportation of such fuel would be something less than the values in Table S-4 multipled by a factor of three. This
provides an absolute upper bound. Actual impacts will considerably less since the amount of fuel that can be shipped to Harris is limited by the pool capacity.
At both Paragraphs (d) and (e), Mr. Eddleman asserts that the risks from spent fuel shipments do not take into account ncw information in an unidentified Sandia study mentioned in Paragraph (d). Mr. Eddleman has not come forth with such new information in the required manner to petition for a waiver of the application of Table S-4 to this operating license pro-coeding. See 10 C.F.R. 5 2.758.
At Paragraph (f) Mr. Eddleman suggests transportation of spent fuel results in undue risks to the health and safety of the public because pressure valves on the cask are likely to unseat. At Paragraphs (g) and (h) it is asserted that the casks to be used by applicants for such shipments will have never been tested physically. There is no basis with the requisite specificity for such assertions. Casks used by applicants will meet all requirements set forth with particu-larity in 10 C.F.R. Part 73. Mr. Eddleman is challenging the Commission's rules at Part 73, but he has not made the showing required by 10 C.F.R. 5 2.758.
Paragraph (i) asserts that NRC calculations of the impact of a spent fuel accident fail to include the first quarter mile from the accident. Mr. Eddleman provides no basis with the requisite specificity for such an assertion. Nor is it clear .
to Applicants to what he is referring.
Paragraph (j) asserts that Applicants have failed to prove that emergency response personnel are capable of handling spent fuel accidents in the course of transportation. This is a health and safety issue applicable to transportation, not storage, and as discussed above is not cognizable in this proceeding.
Finally, in Paragraph (k) Mr. Eddleman asserts that Applicants have failed to prove there will be adequate radio-logical monitoring of spent fuel shipment to and from the Harris plant. As discussed previously, health and safety issues regarding spent fuel transportaion are not properly at issue in this proceeding.
- 2. Waste Disposal (Contentions 67-69)
Contention 67 asserts that there is no assured disposal sito to isolate low-level radioactive waste produced by nucmal operation at the Harris Plant. Mr. Eddleman alleges that the assurance of low-level waste disposal sites is eroded by the refusal of South Carolina, Nevada and the State of Washington to continue to accept unlimited amounts of low-level radioac-tive waste and by enactment of a new law allowing states to form compacts for regional disposal sites. Petition at 172.
The 96th Congress enacted the Low-Level Radioactive Waste Policy Act, 94 Stat. 3347, Pub. L.96-573, 42 U.S.C. 2021.
This Act sets forth a federal policy for the disposal of low-level radioactive waste. Section 4 of the Act directs that each state "is responsible for providing for the availability of capacity either within or outside the State for disposal of low-level radioactive waste generated within its borders except for waste generated as a result of defense activities . . . ."
Mr. Eddleman's contention can be reduced to an assertion that the states will fail to comply with the mandates of the United States Congress. Consideration of such a situation is not required because NEPA contemplates dealing with circumstances, "as they exist and are likely to exist" (Carolina Environmental Study Group v. United States, supra); " remote and speculative" possibilities need not be explored (Life of the Land v.
Brinegar, supra). Furthermore, as Mr. Eddleman admits, there is a low-level waste disposal site accepting waste in the State of South Carolina, which is obviously in the region of the country which includes the Harris Plant. The United States Congress found that " low-level radioactive waste can be most safely and efficiently managed on a regional basis" and provided that the states may enter into compacts as necessary to provide for the establishment and operation of regional disposal facilities for low-level radioactive wastes. 42 U.S.C. 2021(d). Thus, the fact that a low-level waste disposal site exists within the geographic region encompassing the Harris Plant would on its face appear to contradict the premise of Mr. Eddleman's proposed contention. Mr. Eddleman has failed to state a basis for his contention.
2
Contention 68 asserts that there is no assurance of secure disposal of high-level radioactive waste from the Harris Plcnt.
Petition at 172. Contention 69 states that "further production of such extraordinarily dangerous material as spent fuel from Harris should not be allowed until basic research . . . has progressed far enough to reasonably assure . . . that the high-level spent fuel radioactive waste to be generated by the Harris Plant could be safely disposed of." Petition at 175.
Such contentions amount to a collateral attack on the " Waste Confidence" rulemaking. See 44 Fed. Reg. 45362 (1979). The Commission has determined that during the conduct of the waste confidence proceeding, " licensing practices need not be altered." See 44 Fed. Reg. 61372, 61373 (1979). Decisions of the Appeal Board have supported this interpretation and have not allowed the issue of long-term storage of spent fuel to be raised in licensing proceedings. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2),
ALAB-584, 11 N.R.C. 451, 465 (1980); Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1),
ALAB-650, 14 NRC 43, 69 (1981).
F. Decommissioning (Contentions 89, 104, 1351 Eddleman proposed Contentions 89, 104 and 135 raise several issues dealing with the future decommissioning of the Harris plant site. In brief, the subjects Mr. Eddleman seeks to litigate may be summarized as follows: (1) environmental and economic costs of restoring the plant site; (2) uncertainties in the cost estimates of decommissioning of the facility; and, (3) lack of assurance that funds will be available to decommission the facility. As set forth more particularly below, Applicants object to the admission of these contentions as lacking sufficient bases, constituting a challenge to the Commission's regulations and as attempting to raise issues which are about to be the subject of generic rulemaking proceedings.
Proposed Contention 89 asserts that Applicants' Environmental Report fails to consider the costs of restoring the Harris site to a state equivalent to the pre-existing natural " wildlife habitat". Petition at 199. Mr. Eddleman does not reference any authority which would require such restoration and Applicants know of none. Rather, 10 C.F.R.
S 50.82 requires, at the time that license termination is sought, that licensees provide procedures for disposing of radioactive material, decontaminating the site and assuring the public health and safety. To the extent that this contention challenges section 50.82 of the Commissicn's regulations as insufficient in not requiring full site restoration to pre-existing conditions, Applicants submit that this consti-tutes an impermissible attack on the Commission's regulations under 10 C.F.R. 5 2.758. Further, to the extent that Mr.
}
Eddleman's concerns go to the restoration for public use of the plant site following decommissioning, Applicants believe that thosa concerns would be more properly addressed at that time.
In this regard, we note that the envirommental impacts of this future proposed action will be evaluated in accord with the Council on Environmental Quality Guidelines and may lead to the prcparation of an environmental impact statement by the Staff.
See 10 C.F.R. S 51.5(b)(7).
Proposed Contention 89 may also be read as claiming that an alternative, non-nuclear, facility may result in lowered restoration costs at the end of the facility's operating life.
If Mr. Eddleman is attempting to raise this issue, Applicants bolieve that any such consideration, at the operating license stage, of constructing alternates to the project has been precluded by the Commission's recent amendments to Part 51 of its regulations. See 10 C.F.R. S 51.53(c), " Presiding officers shall not admit contentions ... concerning ... alternative energy sources for the proposed plant in operating license hearings." 47 Fed. Reg. 12940, 12943 (March 26, 1982).
Eddleman proposed Contentions 89 and 104 additionally assert that the ER is deficient in failing to consider
" uncertainties" in the costs of decommissioning the Harris plant. Petition at 199, 209. However, Mr. Eddleman fails to provide specific, detailed facts which challenge the cost estimates set forth in Table 5.8.2-1 of the Environmental
Report. Indeed, Mr. Eddleman does not even reference Applicants' cost estimates in his proposed contentions.16 Eddleman proposed Contention 135 claims that no plans have bson made to assure that Applicants will have sufficie,nt funds to safely decommission the Harris plant. Petition at 239. The consideration of funding for decommissioning has been explicity climinated from review by the Commission's recent revisions to its financial qualifications regulations. See revised 10 C.F.R. $ SO.33(f) (1), 47 Fed. Reg. 13750 at 13754 (March 31, 1982). In the Supplementary Information accompanying the revised regulations, the Commission explained its decision to eliminate consideration of decommissioning funding as
...recogniz[ing) that any action on decommissioning is more appropriate in the context of the generic rulemaking now being conducted. Until that time, the C'mmission has concluded that it is premature to include any f'.nal decision on decommission-ing in this final rule on financial qualifications. Because the generic decommissioning rule is scheduled to be 16 Applicants note that the resolution of uncertainties per-taining to decommissioning costs may well be advanced in the Commission's generic decommissioning rulemaking. In 1978, the Commission published an Advance Notice of Proposed Rulemaking which sought comments responding to the Commission's considera-tion of promulgating more specific guidance on decommissioning criteria to be followed by licensees. 43 Fed. Reg. 10370 (1978). Since that time, the Commission has held workshops on decommissioning criteria and has published a draft generic environmental impact statement on decommissioning of nuclear facilities. (NUREG-0586, January 1981). Further, according to the Commission's most recent Regulatory Agenda, action on a proposed rule is currently scheduled for October, 1982. See 47 Fed. Reg. 18525 (April 29, 1982).
published in 1982 and since all licensees will be required to meet any financial requirements imposed as a result of that rulemaking, there should be little practical effect in temporarily eliminating consideration of decommissioning funding from licensing activities.
47 Fed. Reg. at 13751. Further, the Commission points out that consideration of this issue in individual proceedings may result in findings contradictory to evolving Commission policy.
Id. In view of this specific Commission guidance, Applicants contend that Eddleman contention 135 constitutes an imper-missible attack on Commission regulations (10 C.F.R.
S 50.33(f)) and that the issues Mr. Eddleman seeks to raise would more properly be considered during the generic rulemaking on decommissioning.
G. Construction Deficiencies / Quality Assurance (Contentions 41, 65)
The adequacy of CP&L's Quality Assurance and Quality Control programs for the design and construction of the Harris Plant was the subject of NRC review in connection with the construction permit applications. See, in this docket, LBP-78-4, 7 N.R.C. 92, 107-109 (1978). Those design and construction programs are not open to attack once more in a proceeding on the issuance of an operating license. We recognize, however, that one of the findings which the NRC must make in issuing a full-term operating license is that construction of the facility has been in conformity with the construction permit and the rules and regulations of the Commission. See 10 C.F.R. 5 50.57(a)(1). Consequently, a contention that construction has not been in compliance with the previously approved QA programs may be admissible if it is coupled with an admissible contention that safe operation will thereby be affected. The adequacy of Applicants' quality assurance program to assure safe operation of the Harris plant is, of course, a subject within the scope of this application proceeding.
While Eddleman proposed Contention 41 cites Commission regulations governing the QA program for plant operation, Mr.
Eddleman fails to address in any way the extensive program description provided in FSAR section 17.2, " Quality Assurance During the Operating Phase." Rather, the contention appears to address QA inspections during the design and construction phase, and relies mostly upon QA problems discovered at the Diablo Canyon plant in California. Petition at 122. There is no nexus between the problems at Diablo Canyon and the con-i struction of the Harris plant, and Mr. Eddleman fails to establish one. His mention of improper inspection of pipe hanger welds at the Harris plant does not give rise to a litigable issue in an operating license proceeding in the absence of some basis for concern that some defect in the construction has gone undetected and might result in a plant which is not safe to operate. In short, Eddleman proposed Contention 41 should be rejected because it fails to address the operations QA program with any specificity and because it provides no basis for inquiring into CP&L's adherence to the construction / design QA program.
Eddleman proposed Contention 65 also addresses construc-tion, rather than operations matters. It is alleged that Daniel Construction Company, which is constructing the Harris plant for Applicants, has built defective base mats and containments at other nuclear power plants, so that there should be a complete ultrasonic re-examination of the Harris base mat and containment, "able to detect voids over 1 inch."
Petition at 171. Mr. Eddlemam cites to no documentation in support of his allegation that Daniel has constructed "defec-tive" containments or base mats.17 Daniel's construction
- activities at the Harris site, in any event, are under the direct supervision of CP&L management. See FSAR S 1.4.4. This includes CP&L Quality Control inspectors independent of the Daniel organization. Major concrete placements for structures such as the reactor building and its base mat are the subject of close QC inspection and complete documentation. NRC Staff inspectors have been present for such pours at the Harris site.
, 17 The Farley units have been licensed to operate; operating license applications are pending for the Callaway and Wolf Creek plants.
Any significant problems with this construction would have been reported to the NRC. Mr. Eddleman has absolutely no basis to sucpect that there are construction defects at the Harris plant. Any such issues which may have arisen at other sites have no nexus to the Harris plant, where the QC program and responsibilities, the structural designs, and other factors may c differ significantly.
H. Risk Assessment / Accident Analysis (Contentions 34, 58 (1st), 93, 105, 119, 125)
Eddleman proposed Contentions 34, 58 (1st), 93, 119 and 125 all raise, to some extent, perceived inadequacies regarding the extent to which beyond design basis accidents have been (or will be) analyzed for the Harris plant. While these conten-tions, at first blush, may appear to bring into question a wide ,
variety of unrelated subjects, it is Applicants' view that the underlying basis for each of these contentions presents a common theme -- the adequacy of Commission-mandated accident analyses -- which must be addressed prior to discussing any of the specific complaints presented by the contentions.
Initially, it must be noted that applicants for an operating license (or construction permit) must submit two separate accident analyses for review by the NRC Staff: (1) a safety analysis showing that installed safety systems are capable of mitigating a postulated design basis event (contained in section 15 of the applicant's safety analysis report); and, (2) an evaluation of the environmental risks associated with postulated accidents (contained in section 7 cf the applicant's environmental report). See 10 C.F.R. 9 50.34, 51.21; further guidance regarding the required scope of these analyses is set forth in Regulatory Guides 1.70 (Section 15) and 4.2.10 .
With respect to the analysis performed for plant design considerations, the Commission has, pursuant to its Atomic Energy Act mandate of providing reasonable assurance of protecting the public health and safety,19 promulgated regulations which set forth the design standards which must be met by . applicants. See, e.g., 10 C.F.R. S 50.46 and Appendix K to Part 50 (establishing emergency core cooling system (ECCS) performance criteria), and Appendix A to Part 50 (establishing the general design criteria (GDC) for water-cooled nuclear power plants). Compliance with these standards must be 18 Regulatory Guide 4.2 references the proposed Annex to Appendix D of 10 C.F.R. Part 50. This Annex was withdrawn and replaced by a Statement of Interim Policy (45 Fed. Reg. 40101 (1980)), which will be discussed in greater detail below.
19 See 42 U.S.C. $$2133(b), 2134(b),(p) and 2232(a); see also, Power Reactor Development Corporation v. International Union, 367 U.S. 396 at 404 (1961) (holding that the Atomic Energy Act clearly contemplates that the Commission shall by regulation set forth what the public safety requires as a pre-requisite to the issuance of any license or permit under the Act).
documented, and the adequacy of the plant's structures, systems and components in preventing and mitigating accidents must be datermined, in the applicant's safety analysis report. 10 C.F.R. S 50.34. In order to determine the adequacy of the plant design, the Staff has developed a set of design basis casumptions (see Regulatory Guide 1.70, Section 15) against which the acceptability of a particular plant can be judged.
As the Commission has explained, if the analyses performed in section 15 of the safety analysis report conclude that the plant design is adequate to respond safely to these design basis accidents (i.e., so as to meet the siting criteria of 10 C.F.R. Part 100), a judgment is reached that the facility can be operated without undue risk to the health and safety of the public. See 45 Fed. Reg. 65475 (1980) (Advance notice of proposed rulemaking: Consideration of Degraded or Melted Cores in Safety Regulation). Applicants are not required to analyze accidents more severe than the design basis accidents.20 Id.
20 It should, however, be noted that in order to determine compliance with the 10 C.F.R. Part 100 siting criteria, the accident analysis assumes a hypothetical situation resulting in the release to the containment of 100% of the core noble gases and 50% of the halogens (including 25% of the equilibrium radi-oactive iodine inventory). See Regulatory Guides 1.4 and 1.70 (Section 15). Applicants have performed this analysis. FSAR
$15.6.5.4.
Similarly, in accord with the Commission's mandate to carry out the provisions of the National Environmental Policy Act (MEPA), applicants are required to perform an evaluation of the environmental risks of normal plant operations and postula-ted accidents. On December 1, 1971 the Commission published a proposed Annex to Appendix D to 10 C.F.R. Part 50 (Appendix D at that time contained the Commission's regulations imple-menting NEPA) which specified standardized accident assumptions to be used in applicant's environmental report analysis. This Annex set forth nine classes of accidents, ranging from trivial to very serious.21 Evaluations of Class 1 and Class 9 accidents were not required, as they were considered too trivial or too improbable to warrant consideration.
Based upon this regulatory guidance from the Commission, Licensing Boards, the Appeal Board and the Commission itself consistently held that, absent a special showing that a particular reactor presents risks substantially greater than an average plant, consideration of beyond design basis (i.e.,
" Class 9") accidents was not necessary. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-8, 11 21 The accidents categorized as Class 8 are those postulated design basis accidents analyzed in Section 15 of the appli-cants' safety analysis reports. However, the SAR analysis uses highly conservative assumptions while the NEPA accident ana-lyses utilize realistic evaluations. See proposed Annex to App. D, 10 C.F.R. Part 50.
N.R.C. 433, 434-435 (1980); see also Duke Power Company, et al.
(Catawba Nuclear station, Units 1 and 2), LBP (Mamorandum and Order, March 5, 1982), slip op, at 27 (ruling on the health and safe'ty issue); Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 A.E.C. 222, 225 (1974) (ruling on the NEPA issue).
While these past decisions and regulatory guidance have limited consideration of beyond design basis accidents to special circumstances from both the environmental and design view points, the Commission has recently withdrawn its proposed Annex to Appendix D and has issued a Statement of Interim Policy which requires the Staff, in its environmental impact statements,22 to include "... a reasoned consideration of the environmental risks (impacts) attributable to accidents at the particular facility or facilities. ... Events or accident sequences that lead to [ radioactive] releases shall include but
) not be limited to those that can reasonably be expected to occur." 45 Fed. Reg. 40101, 40103 (1980) (emphasis added). It is clear, then, that the Staff's Environmental Statement on the Harris plant will include consideration of those events previously categorized as beyond the design basis or Class 9, 22 These requirements are also applicable to applicants' environmental reports submitted on or after July 1, 1980. As i noted previously, Applicants' Environmental Report was sub-l mitted prior to that time and therefore follows the accident l
analysis guidance given in the proposed Annex to Appendix D.
end that intervenors will be allowed to challenge the Staff's findings following publication of the ES. In that the Staff hmo not yet issued its environmental statement, Applicants submit that any attempt to raise the issue of the environmental consequences of beyond design basis accidents at this time is prcmature.
Further, it is Applicants' position that, despite the new requirement to consider beyond design basis accidents for environmental purposes, any attempt to litigate the design / safety aspects of beyond design basis accidents is still governed by the previous Commission precedent -- i.e., absent a special showing that a particular scenario is likely to occur at this facility, consideration of these accidents is not properly within the scope of this proceeding. Additional support for this position is provided by the Commission's October 2, 1980 Advance Notice of Proposed Rulemaking, in which the Commission stated that it is considering~ amending its regulations to determine to what extent commercial nuclear power plants should be designed to cope with beyond design basis accidents, in particular degraded core cooling and resultant core damage events.23 45 Fed. Reg. 65474 (as 23 Here again, the Appeal Board's guidance in Douglas Point is applicable -- issues which are, or which are about to become the subject of a generic rulemaking proceeding are more pro-perly left for resolution in the rulemaking process rather than in individual licensing proceedings. Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and (Continued Next Page) corrected by 45 Fed. Reg. 70474). Since this Advance Notice of Proposed Rulemaking followed the publication of the Commission's Statement of Interim Policy regarding NEPA accident evaluations, it is clear that the Commission did not intcnd the Interim Policy to extend to design reviews.
Having set out the current regulatory status regarding consideration of beyond design basis accidents, we turn now to a brief discussion of Mr. Eddleman's accident analysis conten-tions. Proposed Contention 34 asserts that the ES and SER are incdequate in evaluating the effects of scenarios designated by Mr. Eddleman as " Class X events". Petition at 102. As discussed above, the Staff has been directed to consider the environmental impacts of beyond design basis accidents that lead to radioactive releases, including those sequences leading to core melt. To the extent that Mr. Eddleman disagrees with the Staff's conclusions, he is free to propose new contentions following publication of the draft ES. Any other litigation of I
this issue would be precluded by Commission precedent.
Applicants' objection to Contention 34, however, goes beyond our general position on consideration of accident analysis, in that the sole initiator for all of the various scenarios (Continued) 2), ALAB-218, 8 A.E.C. 79, 85 (1974); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station),
ALAB-655, 14 N.R.C. 799, 816 (1981).
postulated by Mr. Eddleman as constituting a Class X event is an act of sabotage by terrorists. Section 50.13 of the Commission's regulations, 10 C.F.R. 5 50.13, states that applicants are "...not required to provide for design features or other measures for the specific purpose of protection against the effects of (a) attacks and destructive acts, including sabotage, directed against the facility by an enemy of the United States, whether a foreign government or other person...". The Appeal Board has interpreted this regulation as prohibiting the litigation of contentions which attempted to raise consideration of potential risks due to sabotage of the facility. See Douglas Point, supra, 8 A.E.C. at 81, n. 7; see also Consolidated Edison Company (Indian Point Station, Unit No. 2), ALAB-202 (ALAB-197R), 7 A.E.C. 825, 830 (1974).
Applicants therefore submit that this contention must be
- tejected as a challenge to 10 C.F.R. 550.13.
! Proposed Eddleman Contention 58(1st)24 appears to begin at page 154 of the Petition, and to continue to pages 156 and 155, in that order. There are only 5 " sentences" in the 3-page contention, and one begins at the bottom of page 154 and runs through page 156 and two-thirds of page 155. This run on, stream-of-consciousness, polymorphous approach to pleading i virtually smothers any attempt at response. Mr. Eddleman i
24 Another contention numbered "58" begins at p. 157.
simply has " thrown in" here a multitude of issues, adding up to no single point, and most of which appear to be the subject of othcr proposed contentions.
Applicants will assume, however, that the main point intended is the first one made -- that there should be a quantitative risk assessment for various postulated accidents.
While probabilistic risk assessments now are performed occa-sionally for some plant systems, there is no regulatory requirement to perform an overall plant evaluation. The Commission recently published, for comment, a Proposed Policy Statement on Safety Goals of Nuclear Power Plants. 47 Fed.
Reg. 7023 (February 17, 1982). Discussing implementation of the goals and numerical guidelines, if adopted, the Commission expressed its
... intention ... that the goals and guidelines would be used by the NRC staff in conjunction with probabilistic risk assessments and would not substitute for NRC's reactor regulations in 10 C.F.R.
Chapter 1. Rather individual licensing decisions would continue at present to be based principally on compliance with the Commission's regulations.
47 Red. Reg. at 7026. The Commission requested the Staff to develop a specific action plan for implementation of the proposed qualitative safety goals and numerical guidelines.
Id. Thus, while the Commission is considering, in this rulemaking, the use of safety goals and probabilistic risk assessments, licensing is to proceed per the regulations and an l
cocessment of an applicant's compliance with them. Mr.
Eddleman has advanced no reason why the Harris plant should be an oxception to this established Commission policy.
Consequently, the contention.should not be admitted.
Proposed Contention 93 asserts that the potential of accidental criticality in a collapsed, damaged or degraded core must be thoroughly analyzed in the SER. Petition at 201, 202.
Consideration of this issue would be subject to the Commission's guidance on Class 9 accidents as discussed above.
Mr. Eddleman has not, however, made any showing of any unique circumstances at the Harris plant which would require consider-ation of this type of accident. Further, Contention 93 raises issues which would more properly be considered in conjunction with the Commission's Advance Notice of Proposed Rulemaking, Consideration of Degraded or Melted Cores in Safety Regulation, 45 Fed. Reg. 65474 (1980). Applicants also oppose admission of this contention in that it assumes, as a starting point, a collapsed, damaged or degraded core without providing a specific and credible scenario for arriving at that condition.
Proposed Eddleman Contention 105 asserts that Class 9 accidents must be considered in order to properly establish the Harris plant site exclusion area and low population zone (LPZ).
Mr. Eddleman also contends that the accident analysis performed to establish the exclusion area and LPZ did not utilize the assumptions required by 10 C.F.R. $ 100.11. Petition at 210-212. Mr. Eddleman engages in an extended discussion supporting his contention that a beyond design basis accident must be considered for siting purposes pursuant to 10 C.F.R.
$ 100.11, note 1. Applicants do not contest this assertion; indsed, as noted in the introduction to this section, the accident analysis and associated dose calculations required by this regulation have been performed. Mr. Eddleman, however, overlooks the relevant25 sections c1 the FSAR (Sections 2.1.3 and 15.6.5) in his argument and does not, in any manner, attempt to show how Applicants' analyses performed pursuant to 10 C.F.R. $ 100.11 are inadequate. As to Mr. 7ddleman's assertion that the releases associated with t}.e TMI-2 accident provide support for the need to consider more severe Class 9 accidents for siting purposes, it should be noted that the TMI-2 accident did not result in releases of fission products from the core more severe than that presumed in 10 C.F.R. Part 100 or TID-14844 (cited by Mr. Eddleman). See 45 Fed. Reg.
65474, 65475 at n.4 (Oct. 2, 1980) (Advanced Notice of Proposed Rulemaking: Consideration of Degraded or Melted Cores in Safety Regulation). Based on the foregoing, Applicants urge the Board to reject proposed Contention 105 as lacking sufficient supportable basis to be considered in this proceeding.
25 The only section of the ESAR cited by Mr. Eddleman relates to the containment structure design basis. See FSAR
$ 6.2.1.1.1.
Eddleman proposed Contention 119 appears to assert that
~
the cost-benefit balance under NEPA is insufficient due to uncartainties-in accident probabilities. Petition at 227.
Applicants object to the admission of this contention as so lacking in clarity and specificity that it fails to put the parties on notice as to the subject to be litigated. If Mr.
Eddleman is here attempting to assert that the environmental impacts of Class 9 accidents must be considered, Applicants contend that the admission of such a contention is premature.
As noted above, if Mr. Eddleman wishes to contest the Staff's findings on the impacts of beyond design basis accidents, that subject would be properly raised following publication of the draft ES.26 Eddleman Contention 12S begins by asserting that unspeci-ficd beyond design basis accidents are credible occurrences and that no assurance can be had that the Harris plant can be safely operated because the " WASH-1400 methods of probabilistic risk assessment claimed to serve as a basis and standard for finding ... reasonable assurance" have been shown to be inappropriate for use in licensing decisions. Mr. Eddleman then goes on to mention several accident scenarios or equipment failures without any attempt to link these failures with the Harris plant 27 or to his opening proposition regarding 26 Applicants were not required to address Class 9 accidents in their Environmental Report. See the introduction to this section, supra.
27 Indeed, in his discussion of vessel thermal shock at page 231 of his petition, Mr. Eddleman states that " Harris has been (Continued Next Page)
1 accident analysis. Petition at 230, 231. Applicants object to the admission of this contention for the reasons set forth balow.
Mr. Eddleman has provided no support for his assertion '
that WASH-1400, or other probabilistic risk assessments, serve as the basis for the accident analyses performed by Applicants in order to show that the Harris plant can be operated without endangering the health and safety of the public (i.e., the FSAR Section 15 analyses). Rather, the transients analyzed in the FSAR are categorized into four conditions ranging from normal operational transients to limiting faults. See FSAR S 15.0.1.
No attempt is made to assign a strict probability to any of the events analyzed. Therefore, Eddleman Contention 125 must fail as' lacking a supportable basis for its allegation that Applicants' accident analyses are inadequate.
To the extent that Mr. Eddleman, in Contention 125, is seeking to litigate the safety impacts of the generic category-of beyond design basis accidents, Applicants object to this contention as challenging the Commission's design criteria and (Continued) operating for 10-15 years". There is obviously no basis for this statement.
28 WASH-1400 is referenced in the ESAR only as a recent study presenting the occurrence probabilities of reactor coolant sys-tem pipe ruptures, but is not relied upon to any extent. See FSAR $15.6.5.1. -
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regulatory requirements established to assure the health and safety of the public. As discussed above at the beginning of this group of contentions, if Mr. Eddleman wishes to litigate this issue, a showing must be made that the Harris plant presents risks beyond those of other plants and he must postulate a specific scenario that is likely to occur.
Applicants submit that Mr. Eddleman has failed to make such a showing; the very general discussion of possible accidents or failures in Contention 125 does not attempt to relate these possibilities to any specific design failures at the Harris plant.
In addition, we note that this first paragraph of Contention 125 is taken from Palmetto Alliance Contention 5 in the Catawba proceeding. The Palmetto contention was rejected by the Catawba Licensing Board. Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP , 15 N.R.C.
(March 5, 1982), slip op. at 27, 28.
The second and third paragraphs of Contention 125 are taken from Palmetto Alliance Contention 9 in the Catawba proceeding. The Palmetto contention was rejected by the Catawba Licensing Board because of the pendency of Commission rulemakings on the subject. Id. at 28. The same grounds warrant rejection of these allegations here. In addition, Applicants note that they lack reasonable specificity and any asserted basis in that they do not address the FSAR presentations on hydrogen control or quality assurance.
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The remainder of Contention 125 (Petition at 231) appears to have been photocopied from some other source. Note the insart of " Harris" in the sentence "has been operating for 10-15 years." These statements, which are general and unsup-ported by any Harris-specific basis, largely repeat matters rniced elsewhere in the petition. For all of these reasons, proposed Contention 125 should not be admitted for litigation.
I. Plant Design
- 1. Radiological Monitoring (Contentions 1, 2, 13, 91, 102, 103)
Prior to addressing Mr. Eddleman's proposed contentions on the adequacy of radiological monitoring at the Harris plant, it is worth noting that this subject was raised by intervenors, including the Conservation Council of North Carolina, and litigated at the construction permit hearings. In particular, the intervenors pressed the idea of continuous monitoring stations in receiving waters and evenly spaced atmospheric monitors in circles of 5 and 20-mile radiuses from the center of the plant. The presiding Licensing Board found that CP&L's plan to monitor at the point of release provided earlier warning and greater protection for the public health and safety. See, in this docket, LBP-78-4, 7 N.R.C. 92, 122-127 (1978).
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T Eddleman proposed Contention 1 asserts that emergency response decision-making requires the installation by Applicants of'real-time radiation monitors capable of reading gamma, beta and alpha radiation levels continuously and remotely. Thermoluminescent dosimeters ("TLDs") are said to be inadequate,29 Petition at 28. While Mr. Eddleman dis-cusses the State's capabilities in the area of regular envi-ronmental surveillance, there is no clear nexus between such a vague concern and emergency response equipment needs for the Harris plant. The apparent sole basis for this contention is the implicit argument that real-time monitors are superior to TLDs.30 No references or documentation are cited in support of this proposition. The contention also fails to provide any rationale for the apparent argument (not articula-ted by Mr. Eddleman) that the real-time effluent monitoring provided by Applicants at all significant release points and the mobile area radiation monitoring capability are not 29 Parts of this contention are identical to Kudzu Contention 14, 30 In its ruling on a petition for rulemaking by Critical Mass Energy Project, et al., the Commission rejected the propo-sal that off-site radiation monitoring systems should be desig-ned so that cumulative doses to the public from accidental releases can be established with an error of less than 30% for the most exposed section of the public within 10 miles of the plant. In doing so, the Commission relied upon a Staff eval-uation of, inter alia, TLD capabilities. See 46 Fed. Reg.
11288, 89 (1981).
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cdaquate for emergency response planning. See FSAR sections 11.5, 12.3.4; TMI App. at 56-58. The contention further fails to explain where any real-time monitors would be placed and why such exposure rate environmental monitors, operating after dilution has occurred, would provide superior emergency response information to that available from Applicants' monitoring equipment. In fact, the installed in-plant area radiation monitors and effluent monitors are real-time monitors and will be used by Applicants for initial accident assessment and any protective action recommendations because they tell the current status of the plant and provide earlier warning than would any off-site, general area radiation monitors.
Applicants submit that in the absence of any allegation that Applicants' radiation monitoring system fails to meet NRC required design bases, greater specificity of basis is required before requiring Applicania and the Staff to defend the planned monitoring system.
Eddleman proposed Contention 2 is similar in that it suggests additional radiological monitoring equipment for emergency response. decision-making. Here, Mr. Eddleman proposes the installation on the main stack of two pressurized, ionization monitors or similarly capable equipment that can analyze not only the rate of emissions in gross terms, but the precise radionuclides being emitted and their quantities. He suggests, in addition, that such equipment be placed on every
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gnorous release point, be required for analysis of radioactive liquid effluents prior to discharge, and for the environmental monitoring system around the plant. Finally, it is proposed that all towns and cities within 30 miles of the Harris plant should receive such monitors at CP&L's expense. Petition at 29,-30. While Mr. Eddleman here improves on proposed Contention 1 in that he is more specific about the relief requested, this contention fails as well because it asserts no basis for the relief beyond the vague conclusion that the sought information would improve emergency response decision-making. Mr. Eddleman provides absolutely no explana-tion as to why Applicants' monitoring equipment is not adequate for emergency response situations, or for the proposition that radionuclide-specific information should be required.31 In fact, EPA's Protective Action Guides, which form the basis for nuclear power plant emergency response decision-making thresh-olds, are not radionuclide specific. In the absence of even a theory to support the need for these monitors, proposed Contention 2 should be rejected for lack of basis.
31 Again, Mr. Eddleman does not identify any deficiencies in Applicants' monitoring equipment described in FSAR sections 11.5 and 12.3.4. He also fails to identify any real-time moni-tors which have the capability to analyze precise radionuclides being emitted and quantities, or to explain why measurements of low levels of radioactivity, such as a pressurized-ionization monitor measures, is needed for this application.
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)
Proposed Contention 13 challenges Applicants' ER and FSAR, and the Staff's non-existent environmental impact statement and safety evaluation report for the absence of " proof" that there will be adequate and independent radiological monitoring around the Harris site. This proposed contention lacks adequate bases with reasonable specificity. The only elaboration provided is a reference to alleged CP&L financial difficulties and to inadequate funding of state and federal agencies. Petition at
- 61. If Mr. Eddleman has a specific complaint, with some basis, with respect to the adequacy of off-site radiological moni-toring, he has not set it forth in this contention. General concerns about state and federal budgets are not appropriate subjects for litigation in this operating license proceeding.
In addition, Mr. Eddleman fails to explain why Applicants' quality assurance program, and the NRC Staff's inspection and enforcement program do not provide a sufficient degree of independence. Except for an irrelevant reference to CP&L's Brunswick Station, Eddleman proposed Contention 91 is simply repetitive of Contention 13 and, for the same reasons, should not be admitted for litigation. See Petition at 200.
32 Applicants' financial qualifications to operate the plant are not to be considered in this hearing. See 10 C.F.R.
$5 2.104(c)(4), 50.33(f), as amended in 47 Fed. Reg. 13750 (March 31, 1982).
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Eddleman proposed Contention 102 asserts that the in-containment radiation monitors are incapable of reading the highest radiation levels associated with a Class 9 accident.
Petition at 207. Following the Three Mile Island Unit 2
("TMI-2") accident, the Staff's Lessons Learned Task Force rccommended that two physically separate, safety-orade instru-msnts capable of measuring radiation up to 10 rad / hour be installed in containments of all operating plants and plants under construction.33 The Task Force also stated that those nonitors should meet the requirements of Regulatory Guide 1.97. See NUhE 0578 at 11, A-36 to A-40; see also, NUREG-0737 at II.F.1-13. This Regulatory Guide, " Instrumentation for Light-Water-Cooled Nuclear Power Plants to Assess Plant and Environs Conditions During and Following an Accident", while.
not classifying the severity of the accident to be analyzed, makes clear that no " Class 9" boundary has been imposed when it states that ". . . it is essential that instrument ranges be selected so that the instrument will always be on scale."
Regulatory Guide 1.97, Rev. 2, at 2 (emphasis added).
Applicants have committed to install two high-range containment monitoring systems which meet the Staff's Lessons 33 It should be noted that the TMI-2 containment radiation monitor, which had a range of 10 to the 6th rad / hour, was capa-ble of adequately measuring the radiation levels during that accident. NUREG-0578 at A-39.
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Laarned criteria. ESAR, TMI Appendix at 62, 63. Mr. Eddleman han failed to specify, in proposed Contention 102, why he balieves that the range of the radiation monitors to be installed is insufficient. Further, there is no support to his statement that the containment monitors will only be capable of maasuring radiation levels resulting from a design basis accident. Absent the requisite specificity and basis for Mr.
Eddleman's allegations, Applicants oppose the admission of this contention.
Eddleman proposed Contention 103 claims that the Harris plant is equipped with insufficient shielding to allow for the collection and analysis of primary coolant in a timely manner following an accident. Petition at 207, 208. Pursuant to i
recommendations of the Staff's Lessons Learned Task Force, Applicants have performed a shielding review of the Harris plant and have instituted design changes to provide the capability of collecting and analyzing coolant samples within the allowed time limits without exceeding allowable doses to personnel. This system is described in detail in the TMI Appendix to the Harris FSAR at pages 48-52. Proposed Contention 102 does not even reference the revised sampling system, much less provide any specifics as to why this system is inadequate. Applicants therefore object to the admission of proposed Contention 103.
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- 2. Radiciodine Releases (Contention 29)
Eddleman proposed Contention 29 consists of an introduction and 8 parts, raising disparate arguments with rocpect to the release, monitoring, and effects of radicio-dinas. Petition at 93, 94.
Part A states that there has been a failure to "take cccount of" evidence by certain authors, including Dr. Bruce Molholt, of underestimation of radioiodine releases at Three Mile Island.34 In the design of engineered systems to contain and mitigate the release of radioiodine to the envi-ronment during normal and anticipated operational occurrences, Applicants have followed General Design Criterion 60 of Appendix A to 10 C.F.R. Part 50, and the design objectives of Appandix I to 10 C.F.R. Part 50. Estimates of radiciodines released have been determined using Staff guidance in NUREG-0017, " Calculation of Releases of Radioactive Materials in Gaseous and Liquid Effluents from PWRs." Mr. Eddleman gives no indication of how the " evidence" he cites, even assuming its 34 See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 N.R.C. 1211, 1496-97 (1981)
". . . the German data and studies, on which Dr. Molholt bases his claim that NRC transfer factors are underpredicted, uti-lized maximal values intended to result in a maximal calculated doso. . . . Measured concentrations of radionuclides in the environment near 17 operating nuclear power plants in the United States were one to two orders of magnitude lower than the concentrations predicted using the data relied upon by Dr.
Molholt.").
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validity, would call into question in a specific way the Harris plant design or radiological monitoring program, or the environmental assessment of the effects of radiological releases. It is not enough merely to cite a study and attempt to place the burden upon Applicants and the Staff to discern its import and relevance to this proceeding. .
Parts B and C allege, but provide no explanation or basis for the proposition, that the radiciodine releases and effects have been underestimated.
Part D asserts a failure to provide means for citizen protection in the event of a radioiodine release. Potassium iodide pills or capsules are suggested. This raises an issue of state government responsibility. The emergency response plans.under preparation for the Harris Plant will provide for evacuation of persons within the EPZ, if necessary, as required by NRC regulations. In addition, Federal Emergency Management Agency guidance indicates that planning for protective actions shoald include methods by which the state health department may decide whether to administer radioprotective drugs to the general public during an emergency. NUREG-0654, Rev. 1, at 61,
- 63. The use of radioprotective drugs for the public is not an NRC regulatory requirement, however, and the advisability of stockpiling potassium iodide for the general public is still under NRC review. See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 N.R.C. 1211,
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1666-67 (1981). If Mr. Eddleman has a quarrel with the policy of the State of North Carolina on the use or.radioprotective drugs -- and such policy must have been established by the State for existing operating reactors -- he has not set forth his contention here with specificity or basis.
Parts E and H simply repeat Eddleman proposed Contention 2 on radiological monitoring. Applicants oppose them for the same reasons, stated above in response to Contention 2.
Part F states that there has been a failure to trap radiciodines from any release point. The Harris Plant has, however, a gaseous waste management system designed to minimize release of radiciodines to the environment and maintain off-site doses to "as low as reasonably achievable" per Appendix I to 10 C.F.R. Part 50. See FSAR sections 11.3.1, 11.3.2, 11.3.3. Mr. Eddleman advances no deficiencies in this treatment system.
Part G alleges that erroneous conclusions have been assumed about radiciodine effects on fetuses and infants. Mr.
Eddleman does not state what these " conclusions" are, how they are in error, or the consequences of these alleged errors for operation of the Harris plant. In addition, the reliance upon the Licensing Board's decision in the TMI-l Restart proceeding is misplaced. That Board found the testimony of Dr. Molholt on the effects of I-131 on the health of the fetus and infant, the environmental transport and monitoring of I-131, and the
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quantity of radiation released during the TMI-2 accident, to be technically flawed. See TMI-1, supra, 14 N.R.C. at 1591-96 (1981).
None of the disparate parts of proposed Contention 29, or their sum, meets the standards of 10 C.F.R. 5 2.714(b).
- 3. Failure Modes (Contentions 4, 7, 108, 111)
Eddleman proposed Contention 4 asserts that Applicants' safety analysis is deficient because it assumes, in general, only a single failure at any one time. Mr. Eddleman states that the issue of multiple and common-mode failures is not addressed in any comprehensive or conclusive manner in the FSAR. Petition at 46.35 For the purpose of performing safety analyses to test the adequacy of the plant design, it is true that Applicants have followed the " single failure criterion" required by the NRC.
That criterion is used throughout the Commission's General Design Criteria, and " single failure" is defined as follows in the " Definitions and Explanations" portion of Appendix A to 10 C.F.R. Part 50:
i 35 The remaining argument in the contention is irrelevant.
There is no relationship between construction and operation of the Brunswick Station and the safety analyses for the Harris plant. See Petition at 46, 47.
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A single failure means an occurrence which results in the loss of capability of a component to perform its intended safety functions. Multiple failures resulting from a single occurrence are considered to be a single failure. Fluid and electric systems are considered to be designed against an assumed single failure if neither (1) a single failure of any active component (assuming passive components function properly) nor (2) a single failure of a passive component (assuming active l components function properly), results in a loss of the capability of the system to perform its safety functions. [ Footnote omitted.]
Contention 4, then, amounts to a challenge to the Commission's General Design Criteria set forth in Appendix A to 10 C.F.R.
Part 50. In addition, Mr. Eddleman has ignored, and perhaps failed to consider in formulating the contention, the Commission's TMI Action Plan requirements to provide reactor operators with the instrumentation, procedures and training necessary to recognize and respond to inadequate core cooling conditions, regardless of their cause.
Proposed Contentions 7 and 111 advance the need for a comprehensive failure modes and effects analysis of the entire Harris plant. Mr. Eddleman cites to opinions by Staff members 6
Demetrios Basdekas and Dr. Stephen Hanauer. Petition at 36 Mr. Eddleman does not provide a reference for the remarks he attributes to Dr. Hanauer. Since the issuance of NUREG-0585 (TMI-2 Lessons Learned Task Force Long-Term Recommemdations),
however, the NRC, through its TMI Action Plan, items II.C.1, II.C.2 and II.C.3, has instituted a program to address systems interaction. Mr. Eddleman does not advance any complaints about this effort.
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50, 221. Mr. Eddleman provides no explanation as to why such an analysis should be required for Harris. He has not identified the kinds of failures with which he is concerned, any inadequacies of their consideration in current safety analyses, or their potential impact. The contention is too vague to be admitted and should be disallowed. See Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2),
LBP , 15 N.R.C. (March 5, 1982), slip op. at 32 (Palmetto 29).
Eddleman proposed Contention 108, as best we understand it, alleges the need for performance testing of the Harris plant (prior to start up), or a plant of similar design, for a series of events including " Class 9" accidents. In addition, it is. asserted that a record should be compiled of operational experience with the systems in the Harris plant to provide a basis for appropriate design modifications to guard against control systems interations. Petition at 215-217.
Testing of nuclear power plant systems for postulated accident situations is performed at experimental and research test facilities designed for that purpose. In addition, a comprehensive initial test program for the Harris plant is l
l described in FSAR Chapter 14. Mr. Eddleman does not explain why he is not satisfied with these tests, and the basis for any such complaints. Surely he realizes why it is absurd to suggest simulating Class 9 accidents at a power plant, and why
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it is impo'ssible to do so prior to operation. As to operating experience with similar plant systems and components, it should be obvious that Applicants' vendors are familiar with the experience with their product in operating plants, as are the NRC and industry in general as a result of the Licensee Event Report surveys and other data gathering efforts by the Institute for Nuclear Power Operations. In sum, this.conten _
tion does not raise a cognizable safety concern and is without basis.
- 4. 2quipment Qualification (Contentions 9, 11, 43, 70-72, 76-78, 96)
Programs are in progress to review the environmental qualification of safety-related electrical equipment pursuant to IE Bulletin 79-01B and the Commission's decision in Petition for Emergency and Remedial Action, CLI-80-21, 11 N.R.C. 707 (1980). In CLI-80-21, the Commission endorsed the Staff's action to use NUREG-0588 (" Interim Staff Position on Environmental Qualification of Safety-Related Electrical Equipment") to evaluate the equipment for plants under licens-ing review to determine compliance with General Design Criterion 4 of Appendix A to 10 C.F.R. Part 50. 11 N.R.C. at 711.
The Commission subsequently issued a proposed rule on Environmental Qualification of Electric Equipment for Nuclear
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Powar Plants. 47 Fed. Reg. 2876 (January 20, 1982). If adopted, the rule would codify the acceptable environmental quclification methods and clarify the Commission's require-ments. Until the rule is adopted, however, CLI-80-21, in the form of a Commission order, establishes the qualification mathods and criteria applicable to the Harris plant. Absent soms showing of special circumstances, we submit that the Commission's order is not subject to challenge in this individual licensing proceeding.
Applicants' compliance with the Commission's requirements is an appropriate subject for this proceeding if properly raised. FSAR section 3.11 (" Environmental Design of Active Mechanical and Electrical Equipment") provides considerable information on equipment qualification. Applicants have not yet amended the FSAR, however, to address compliance with NUREG-0588. See FSAR Appendix 3. llc. Eddleman proposed Contentions 9 (Petition at 52) and 43 (Petition at 123) essentially just record the fact that Applicants must yet file this additional information. While it is not appropriate to admit these contentions as presently worded, Applicants recognize that the filing of new qualification information with the Staff will constitute good cause for the filing of new contentions. The appropriate course, then, is for Mr. Eddleman to review the filing and then promptly submit specific conten-tions, if any, with respect to any deficiencies he has identified.
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Proposed Contention 11 asserts that Applicants have failed to account for the fact that polyvinyl chloride ("PVC"), used for cable jackets in nuclear plants, has been shown in recent tests to deteriorate more rapidly under long-term doses of gamma rudiation than they do when exposed to the same total doso over a much shorter period of time in tests. Petition at
- 56. Mr. Eddleman cites the work of K. Gillen and P. Clough of Sandia Laboratories. This aspect of the contention is inap-plicable, however, beca4se no safety-related cable at the Harris plant will be PVC jacketed. Consequently, Mr. Eddleman should withdraw this aspect of the contention.
The same allegation is made in Contention 11, however, with respect to polyethylene, used as cable insulation.
Petition at 56. Proposed Contention 96 merely repeats this point. Petition at 203, 204. While certa.n forms of polymeric material are employed as cable insulation at the Harris plant, all safety-related cabling has been tested in accordance with IEEE 323 (1974). See FSAR Appendix 3.11A-9 to 3.11A-15.
Specifically, the Arrhenius testing was used to assess the effects of radiation over time. NUREG-0588, Rev. 1, states, for Category I equipment:
The Arrhenius methodology is considered an acceptable method of addressing accelerated aging. Other aging methods that can be supported by type tests will be evaluated on a case by case basis.
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NUREG-0588, Rev. 1, at 16. Thus, Applicants have used the testing methodology found to be acceptable by the standards (NUREG-0588) which the Commission ordered, in CLI-80-21, to be used in licensing reviews until the completion of rulemaking on the criteria. I its statement in the notice of proposed rulemaking issued this year, the Commission confirmed that NUREG-0588 forms the basis for the requirements applicants must meet until the rulemaking has been completed. 47 Fed. Reg. at 2877 (January 20, 1982). Consequently, when Mr. Eddleman attacks the test methodology used for polyethylene insulated cabling, he is challenging the Commission's Order and raising an issue which should be addressed in the pending rulemaking.
See Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79, 85 (1974); Sacrament Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 N.R.C. 799, 816 (1981).
Eddleman proposed Contention 76 essentially repeats the points made in Contentions 11 and 96 on equipment quali-fication, and attempts to speculate about the consequences for t1ydrogen control if the cables feeding power to the recombiners degrade. Petition at 182-184. Applicants' objections to Contentions 11 and 96 apply as well to the premise which underlies and is necessary to Contention 76. In addition, as noted above, the cabling in the Harris plant has been tested to
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,L
IEEE 323 (1974), and not to IEEE 323 (1971) as Mr. Eddleman contends.37 Proposed Contentions 77 and 78 likewise amount to nothing mors than extensions of the arguments advanced in Contentions i 11 cnd 96. Petition at 184-186. Contention 77 is simply additional unsupported speculation about the consequences of radiation-induced cable failure. Contention 78 attempts to add to these scenarios loss of control power experience at other plcnts without establishing any nexus between those plants and the Harris plant. Mr. Eddleman totally ignores Applicants' presentation on the reliability of its control power supply.
See FSAR SS 8.1.4.2, 8.3.1.1. Thus, these contentions are lacking in basis for these and the above-stated reasons advanced in response to Contentions 11 and 96.
Eddleman proposed Contention 70 asserts that Applicants are not in compliance with IE Information Notice 81-20 (July 13, 1981) on the potential failure of electrical penetration assemblies. Petition at 176. The Notice and therefore the contention, however, are inapplicable to the Harris plant. The Notice states as follows:
37 The contention is further lacking in basis because Mr.
Eddleman has failed to address the FSAR analysis of hydrogen generation and control, which shows that only one of two hydro- -
gen recombiners, or the hydrogen purge system (three alterna-tives) is necessary to control hydrogen in containment. FSAR S 6.2.5.3.2. With regard to hydrogen monitoring, Mr. Eddleman has ignored the fact that the Hydrogen Analyzer and Instrumentation are Class lE and therefore designed for acci-dent conditions. See ESAR Table 3.2-1.
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The Sandia National Laboratory, under contract to the NRC, recently completed an independent environmental qualification test of a D. G.
O'Brien model K EPA [ Electrical Penetration Assembly]. The test EPA was obtained from the Duke Power Company's Catawba plant. The only other known application of EPAs of the same design is in the McGuire plant and two replacement units at Yankee Rowe.
The Harris plant has no electrical penetration assemblies of the type or design which are discussed in the Notice.
Consequently, Contention 70 should be withdrawn by Mr.
Eddleman.
Proposed Contention 71 advances the proposition that Ebasco-purchased equipment for the Harris plant should be temperature qualified for Class 9 accidents. Petition at 177.
There is no such requirement, and the TMI-2 accident experience did not create one. We address above the Eddleman contentions
(" Risk Assessment / Accident Analysis") which urge that Class 9 accidents form a new design basis. Here, Mr. Eddleman misreads the FSAR and states that accident temperatures for the equip-ment are higher than their qualification temperatures. The document actually states as follows:
The peak transient temperature exceeds the peak qualification temperature for some Ebasco purchased equipment located in the Containment. The thermal response of each particular type of equipment has been analyzed. In all instances, it has been demonstrated that the actual peak tempera-ture experienced by the vital subcomponents of safety related equipment are less than the qualification peak temperature.
Consequently, all vital subcomponents experience peak DBA [Cesign Basis Accident]
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temperatures less than that for which they are qualified. Appendix 3.llB demonstrates these analyses.
FSAR $ 3.11.l'. Mr. Eddleman has not set forth any deficiency in these analyses. To the extent he quarrels with the deter-mination of design basis qualification temperatures for the cquipment, Mr. Eddleman is challenging the Commission's qualification standards once more. The contention thus fails both because it challenges the NRC standards and because it lacks any basis for questioning Applicants' analysis.
Eddleman proposed Contention 72 asserts that numerous pieces of equipment for the Harris plant should be qualified to IEEE 323 (1974), rather than to IEEE 323 (1971). Petition at 178, 179. Again, Mr. Eddleman is quarreling with'the Commission's standards, without a showing of special circum-stances with respect to the Harris plant. The standards applicable to this plant are contained in NUREG-0588, which states that:
For Operating Licenses issued after May 23, 1980, whose Construction Permit SER is dated before July 1, 1974, the Operating License applicant is required to qualify equipment to at least Category II require-ments in NUREG-0588. . . .
NUREG-0588, Rev. 1, at ix. The construction permit SER for the Harris plant is dated December, 1972. Category II applies to equipment qualified in accordance with IEEE 323 (1971). Id. at
- 2. Thus, Contention 72 simply challenges a standard which the
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Commission has already determined to be adequate. The contention should therefore be rejected as an impermissible challenge and as lacking in basis.
- 5. Steam Generators (Contentions 19, 112-114)
Eddleman proposed Contentions 19, 112, 113 and 114 each attack the design of the steam generators in the Harris plant and, in particular, the potential for adverse consequences from steam generator tube vibration and corrosion.38 Petition at 79, 222-224. For the most part, these contentions rely upon the fact that some operating nuclear power plants have experi-onced some problems with steam generator t bes. Mr. Eddleman speaks generically of the Westinghouse "Model D" steam genera-tors. See id. at 112. In fact, however, there are variations of the Model D steam generator which are significant for the potential for vibration-induced wear. The Almarez, Ringhals and Summer plants to which Mr. Eddleman refers have Model D-3 steam generators. The McGuire plant has Models D-2 and D-3, and the Harris plant has Westinghouse Model D-4 steam genera-tors.39 Whereas the D-2/D-3 steam generator design 38 The issues are also the subject of CHANGE /ELP proposed Contentions 30 and 33.
39 Mr. Eddleman's comparison of these plants is under-standable since the FSAR does not identify the Harris design as other than a Model D steam generator. See FSAR $ 5.4.2. The distinction, nevertheless, is important and the comparison is not valid.
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incorporates a bi-directional, split-flow feedwater entry, the D-4 design employs an uni-directional, counter-flow feedwater entry.
Consequently, while Westinghouse and Applicants are continuing to evaluate, through studies and tests, the potential for vibration-induced fatigue.in D-4 steam genera-tors, the bases cited in the Eddleman contentions (i.e.,
experience at other plants), do not have a direct nexus to the Harris plant. Except for the references to other plants, the contentions contain no asserted basis and they fail to set forth any shortcomings in Applicants' discussion of mechanical and flow-induced vibration. See ESAR S 5.4.2.5.3.
With respect to the potential for corrosion of Inconel-600, the steam generator tubing material for the Harris plant, Mr. Eddleman has not addressed the extensive testing and favorable operating experience described in the FSAR. See Petition at 223. Rather, he has inappropriately attempted to apply to the Harris plant the experience with Inconel tubing at Turkey Point 3,and 4, Surry 1 and 2, Robinson 2, and Prairie Island. Each of these plants, at one time, used phosphates for secondary side chemistry control, and all but Robinson have switched to an "all volatile treatment" (AVT) chemistry control program. The Harris plant will begin operation using AVT control and therefore should not experience the sludge formation and denting problems associated with the use of phosphates at these other plants.40 The FSAR discusses the 40 In addition, the contentions fail to address the contribu-tion of extensive sea wate,r in-leakage to the secondary system (Continued Next Page)
tacting of Inconel-600 material in the AVT environment, and opsrational experience with such systems. See FSAR S 5.4.2.1.3. Mr. Eddleman has failed to address this informa-tion in any way. Further, the contentions fail to address the advanced design features (such as condensate polishers, stainless steel feedwater heater tubes and moisture separator-reheater tubes, and integrally grooved tube sheets in the main condenser) intended to prevent corrosion products from entering the steam generator. See ESAR SS 10.4.1.2, 10.4.6.
In sum, Contentions 19 and 112 to 114 lack a specific basis because the cited operating experience has no direct nexus to the Harris plant, and because the contentions fail to identify deficiencies in FSAR information provided on steam generator tube fatigue and corrosion.
- 6. Reactor Vessel (Contentions 46-51, 92, 130, 131)
Reactor pressure vessels are the subject of numerous NRC regulatory requirements. See, e.g., 10 C.F.R. S 50.55a(c)
(requirements of ASME codes); $ 50.55a(g) (inservice inspection requirements), Appendix G to Part 50 (fracture toughness (Continued) at the Turkey Point and Surry units. The Harris plant, with a fresh-water lake and closed cooling tower system, will not be exposed to this potential source of corrosion.
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requirements); Appendix H to Part 50 (reactor vessel material surveillance program requirements); Appendix A to Part 50 (General Design Criteria 14, 30, 31 and 32). The Commission's confidence in its own regulations governing reactor pressure vessel integrity has been such that in order to warrant inquiry into vessel integrity in licensing proceedings, evidence must be directed to the existence of special considerations involv-ing a particular facility in issue. The Commission empowered Licensing Boards, in their discretion, to exclude contentions or challenges relating to pressure vessel integrity which have no substantial or prima facie basis, or which merely amount to generalized attacks upon the standards presently required by the regulations. Consolidated Edison Company of New York (Indian Point Unit No. 2), CLI-72-29, 5 A. E.C. 20, 21 (1972).
Eddleman proposed Contention 47 asserts that Applicants have not properly considered the so-called " fast fracture" of the reactor vessel or associated primary coolant boundary and material. Mr. Eddleman relies exclusively on the writing of a British metallurgist, Sir Alan Cottrell, who apparently defines
" fast fracture" in the following terms:
In many construction materials there is a critical stage, at a certain depth of penetration, at which a crack becomes unstable and will then run on rapidly in the material, at almost the speed of sound, to rip the material completely apart in a fraction of a second.
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l Patition at 127. We are not told what " construction materials" tha author has in mind. It is not even clear, from the quotations provided, that pressure vessel material is at issue.
It is further assumed, apparently, that cracks will go undstected.41 The remainder of the contention simply assumes that fast fracturing of an undetected crack occurs resulting in pressure vessel failure, and presents lengthy speculation on the consequences of such a failure. Petition at 127-129. There is no indication here that Mr. Eddleman has any basis to support a contention particularly aimed at the Harris plant, as would be required under the Commission's decision in Indian Point, supra. It is not enough simply to point to a written piece without establishing that it has relevance for the facility at issue.42 Since the contention does not otherwise allege a failure to comply with applicable Commission regulations, we submit that it should be disallowed for failure to set forth any basis relevant to the IIarris plant. See also 41 The adequacy of Applicants' surveillance and inspection program in this regard is the subject of Eddleman proposed Contentions 48 and 49.
42 In this regard, it appears that Cottrell has since come to approve the low-alloy steels (ASME types SA533B and SA508) used in pressure vessels (including the Harris plant -- see FSAR S 5.3.1.1), and the best modern practices which produce steels with " upper shelf" range toughness. See Cottrell, "A Second Look at the PWR Pressure Vessel," Nuclear Engineering International (May 1982), at 36. These practices are employed in the manufacture of the pressure vessel for the Harris plant.
See FSAR $ 5.3.1.2.
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FSAR $ 5.3.3.6 (evaluation of unstable crack growth'under i
faulted conditions).
Eddleman proposed Contentions 48 and 49, along with a portion of Contention 47, crgue that Applicants' surveillance cnd inspection programs are inadequate to detect cracks which could cause the " fast fracture" phenomenon alluded to in Contention 47. Petition at 129-132. Applicants' programs for non-dostructive examination of the reactor vessel and its
- eppurtenances, for fracture toughness tests called for by Appandix G to 10 C.F.R. Part 50, and for inservice surveillance
- nro fully described in FSAR sections 5.3.1 and 5.3.3.7. See
,also FSAR $ 5.2.4.1. While Mr. Eddleman attempts to articulate his view of an adequate testing and inspection program, he does not address in any specific way the actual programs used by
,Ap.nlicants, and he does not set forth any failure to comply with NRC regulations and requirements. Therefore, to the extent he seeks different tests and methods of inspection, Mr.
3 Eddicman attempts to attack generally the standards presently required by the regulations. See Indian Point, supra, CLI-72-29, 4 A.E.C. 20, 21 (1972). If the contentions are intended to raise Applicants' compliance with those standards, than they lack specificity and basis. In either case,
' Contentions 48 and 49 should not be admitted for litigation.
Proposed Contention 50 amounts to nothing more than a procedural request -- the suspension of construction of the -
i
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Harris plant -- adorned by the arguments discussed above iny,/
l ,-
i /
response to Contentions 47-49. Petition at 133, 134. For' the )13' rossons advanced above in response to a sim'ilar requess \c1 cmbodied in Mr. Eddleman's NEPA cost-benefit contentions,
- 1.x o.
Applicants submit that the Board does not have the authority to-suspend construction. See Consumers Power Company'(Midland v.
Plant, Units 1 and 2), ALAB-674, 15 N.R.C. (May 5, 1982). ,
Eddleman proposed Contention 51 asserts that because of /_, [ -
i \l experience at CP&L's Robinson plant, Applicants have not ,'} i .i- ,
4 5
.q '
demonstrated compliance with Appendices G and H t@ 10 C.F.R. D/,'f ., .
Part 50 for this operating license application. Petition at' 135, 136. The Robinson experience, however, clearly is not <
" pertinent" since the vessel materials and manufacturing processes differ from those used for the Harris plant. The fact that they are both Westinghouse PWRs does not establish commonality for vessel fracture toughness. Where Mr.' Eddleman states that six specimen capsules are planned in total for the reactor vessel surveillance program, he misreads the^FSAR, which does not state that there will be six " total." See FSAR S 5.3.1.6. In fact, there will be six per vessel, and that is the intent of the discussion. Neither does Mr. Eddleman have any basis for speculating that Applicants' fracture analysis (which obviously considers radiation damage, tempera-ture/ pressure variations, and corrosion) is not sufficiently conservative. See FSAR S 5.3.1.6. As for the capacity for
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annoaling, see Applicants' response to CHANGE /ELP proposed Contention 27 on'the same subject. In short, the only basis cdvcnced for Contention 51 is the inapplicable experience of other plants. Absent an adequate basis, the contention should not be admitted.
Proposed Contention 46 alleges that the FSAR is deficient bacause it does not consider an accident in which the reactor neutron shield falls, ad blocks core coolant flow, due to the failure of embrittled bolts. Petition at 125, 126. Again, Mr.
Eddleman ignores the Harris plant in order to concentrate on an older designs at other plants (here, Robinson and Oconee). The Harris design does not employ a single neutron shield, but rather a neutron shield pad assembly consisting of four pads that are bolted and pinned to the outside of the core barrel.
FSAR S 3.9.5.1. One of the reasons for this design is to reduce the tendency for induced vibration in the thermal shield, and thereby to reduce the stresses on the supporting members. As discussed in FSAR Ref. 3.9.5-1, the bolts are designed to resist most of the primary flow induced and seismic ,
normal loads, but the pins, which are press fit into position, carry all of the weight and are designed to resist the accident loads. Consequently, the accident scenario postulated in Contention 46 is not applicable to the Harris plant, and the contention should be rejected for lack of basis.
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Eddleman proposed Contention 131 postulates vessel failure as a result of the failure of stud bolts which have experienced corrosion from borated water. This contention obviously was photocopied from another proceeding. See Petition at 238.
This is confirmed by a reference to "FSAR Table 5.3.-12," which does not exist in the Harris FSAR. The design of the reactor vessel fasteners for the Harris plant is discussed in FSAR section 5.3.1.7, which Mr. Eddleman does not address. In addition to discussing compliance with applicable NRC require-monts, the FSAR there states that "the reactor closure studs are never exposed to the borated refueling cavity water."
Further measures to protect against corrosion are described.
Since the contention fails to identify any deficiencies in this presentation, it must fail for lack of any basis.
Proposed Contention 130 also appears to have been photoco-pied and seems to address only Duke Power Company plants.
Petition at 237. The contention merely repeats, in summary fashion, matters on reactor vessel cracking, steam generator tube degradation, and ATWS, which are raised in several other Eddleman contentions. Repetition alone would justify the rejection of this contention. Further, it lacks any degree of specificity and basis -- amounting to a mere series of con-clusory and unsupported speculations.
Eddleman proposed Contention 92 advances the proposition thmt the Harris Emergency Core Cooling System is not designed
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to mitigate the extreme overpressure accidents (ATWS) or reactor vessel failure. Petition at 201. Again, this is maroly a small variation on themes which are pressed in other contentions. No attempt is made, however, to contend, with basis and specificity, that the ECCS has not been demonstrated to comply with 10 C.F.R. $ 50.46 pursuant to Appendix K to 10 C.F.R. Part 50. Any contention that the system must exceed those requirements constitutes an attack on Commission regula-tions without the showing required by 10 C.F.R. 5 2.758.
- 7. Heat Sink (Contentions 75, 79)
Proposed Eddleman Contentions 75 and 79 postulate sce-narios whereby the cooling tower heat sink would be lost --
cither by blockage of water flow by Asiatic Clams or other marine growth (Contention 75)43 or by collapse of the cooling towers (Contention 79). Petition at 181, 167.
Prior to addressing the allegations set forth in proposed Contentions 75 and 79, Applicants believe it would be useful to briefly describe the functions of the Harris Plant cooling towers. Water from the cooling tower basins is used to supply 43 Proposed Contention 75 also attempts to raise other issues (i.e., defective steam generators, corrosive effects of bio-cides added to the cooling tower water) not applicable to the main thrust of the contention. However, these issues are addressed in response to proposed Contentions 112-114 and 83-84, respectively. .See Sections II.I.5 and II.C, supra.
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two systems: the non-safety-related Circulating Water System (used to supply water to the main condenser) described in section 10.4.5 of the ESAR; and, during normal operations, the Service Water System, described in section 9.2.1 of the FSAR.
Contrary to the assumptions of proposed Contentions 75 and 79, the cooling tower basins are not required for safe shutdown or cooldown of the reactor. In the event of a Cir.culating Water System (CWS) failure, the Atmospheric Steam Dump System will perform the residual heat removal function of the CWS-supplied main condenser. FSAR 6 10.4.5.3. The normal Service Water System is not used during emergency conditions; rather, cooling is provided by the Ultimate Heat Sink (UHS) which dissipates the service water heat load, with water provided by the cmargency service water pumps from either the Auxiliary Reservoir or the Main Reservoir, not from the cooling tower basins. ESAR 55 9.2.1.2, 9.2.5.2. The UHS assures a redundant supply of cooling water under accident conditions and is designed to withstand the following conditions without a loss of function: safe shutdown earthquake; design basis tornado; design basis flood and other natural phenomena; failure of any single man-made structure. FSAR 6 9.2.5.3.
Returning now to the substance of Mr. Eddleman's allega-tions, proposed Contention 75 asserts that the plant heat sink could become blocked or fouled by marine growth.44 44 Mr. Eddleman's reference to IE Information Notice 81-03 is incorrect; the proper references are IE Bulletin 81-03 and IE (Continued Next Page)
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l Applicants have taken appropriate measures to reduce the entry of dcbris via the water intake and to control biological fouling of the condenser tubes and circulating water piping l (i.e., through the use of traveling screens and a program of controlled chlorination). See FSAR 55 9.2.1.2, 10.4.5.2, 10.4.5.3. Mr. Eddleman's statement of general concerns does
'not roference, much less take issue with Applicants' response to IE Bulletin 81-03 or with the discussion in the FSAR of maasures to control blockage of the cooling tower water intake.
Further, as discussed above, the CWS is not required for plant shutdown and the Service Water System, backed up by the
. Ultimate Heat Sink, has sufficient redundancy to assure availability of a service water heat sink. Applicants therefore submit that proposed Contention 75 does not meet the
'bosis requirements of 10 C.F.R. 5 2.714(b) and should not be admitted as a contention in this proceeding.
Proposed Contention 79 asserts that the collapse of a l cooling tower, resulting in an inability to remove core decay (Continued) lInformation Notice 81-21. Applicants responded to IE Bulletin l81-03 on July 10, 1981. In that response we noted that lCorbicula (asiatic clam) did not inhabit the Main Reservoir, lbut that the potential for biofouling did exist due to the
! existence of the clam in the vicinity of the site. Applicants
!further noted that any introduction of clams would be detected by the ongoing benthic masero-invertebrate monitoring program, at wh acted lupon.ich time necessary protective measures will be l
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heat, must be assumed for purposes of performing a proper eccident analysis. Petition at 187. In support of his cocortion that the cooling towers could collapse, Mr. Eddleman citos the collapse of a cooling tower in West Virginia con-structed by the same firm building the Harris Plant towers, and further claims that an earthquake or tornado could cause a collapse. With respect to this first argument, Applicants note _
that the 1978 accident in West Virginia involved the collapse of scaffolding during construction of the cooling tower. As such, this event provides no basis for Mr. Eddleman's assump-tion that, after construction of the cooling townrs had been completed and the plant was operating, the cooling towers would suffer such a failure.45 In that the cooling towers are not required for safe shutdown (see introduction to this Section), they are not constructed to Seismic Category I criteria. While collapse of a cooling tower is considered unlikely, this event would not result in the distribution of debris over a large area outside the cooling tower basin area itself (the nearest edge of any cooling tower is approximately 550 feet from any Seismic Category I structure). FSAR S 10.4.5.3. Thus, while the collapse of a cooling tower is in the realm of possible 45 Further, Mr. Eddleman has made no showing or supported allegation that the Harris cooling towers were improperly con-structed.
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occurrences, this type of accident would not, as shown above, impact the plant's ability to effectively remove core decay heat. Eddleman proposed Contention 79 must therefore fail as lacking sufficient basis to be accepted as an issue in this proceeding.
- 8. Unresolved Safety Issues (Contention 107)
Eddleman proposed Contention 107 claims that the SER does not provide adequate assurance that the Harris Plant can be safely operated in light of a number of generic safety issues, which Mr. Eddleman claims are applicable to the Harris Plant, which have not as yet been resolved by the Staff. Petition at 213-215. Applicants acknowledge that justification allowing operation of a plant while certain generic safety issues remain unresolved is a matter appropriate for consideration at the operating license stage. See, e.g., Virginia Electric and Power Comoany (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 N.R.C. 245 (1978). Applicants contend, however, that admission of proposed contention 107 would be premature at this time.
By letter of February 16, 1982, the Staff requested information from Applicants regarding twelve Unresolved Safety issues 46 which it believes are applicable to the Harris 46 Applicants note that the issues listed by Mr. Eddleman are, for the most part, the same as those found applicable to (Continued Next Page)
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Plcnt in order that a discussion of these issues may be included in the SER. (Applicants are to provide the requested information by July 31, 1982.) It is clear then that the SER will provide either justification for operation pending resolution of these issues or require interim modifications pending complete resolution. Applicants believe that, while the sufficiency of the Staff's findings may be litigated, this contention should not be admitted or should be deferred until the GER is issued. At that time, Mr. Eddleman should be required to state with particularity the basis for his disputes (if any) with the Staff's conclusions.
- 9. ATWS (Contention 115)
Proposed Contention 115 asserts that a failure modes and offects analysis of Anticipated Transients Without Scram (ATWS) must be conducted in order to provide assurance that the Harris Plant can be safely operated. Petition at 225.
(Continued) the Harris Plant by the Staff. The Staff does not, however, include pressurized thermal shock (Eddleman issue (K)) as applicable. As the Appeal Board has held, in order to consider a generic technical issue, a party must do more than present a list of issues it claims are applicable to the facility.
Rather, the party seeking to raise such an issue must establish some nexus between the facility in question and the generic issue of concern. See Gulf States Utilities Comoany (River Bend Station, Units 1 and 2), ALAB-444, 6 N.R.C. 760, 768-774 (1977). Applicants therefore contend that thermal shock should not be litigated as an Unresolved Safety Issue in this pro-ceeding.
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The Commission is currently considering amending its regulations to require design and operation modifications aimed at reducing the likelihood of failure to scram events and to mitigate the consequences of.ATWS events. Proposed Rule:
Standards for the Reduction of Risk from Anticipated Transients Without Scram (ATWS) Events for Light-Water-Cooled Nuclear Power Plants, 46 Fed. Reg. 57521 (1981). The Commission has under consideration three proposed alternatives for resolving this generic issue and has requested public comments on these alternatives. Id.
As Applicants have noted previously, the Appeal Board has hold that issues which are to be taken up in generic rulemaking proceedings are most properly left for resolution in the rulemaking process, rather than in individual licensing proceedings. See Potomac Electric and Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79, 85 (1974); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 N.R.C.
799, 816 (1981). Applicants believe this guidance is particu-larly apt in this case, where the Commission has made the following finding:
The Commission believes that the likelihood of severe consequences arising from an ATWS event during the two to four year period required to implement a rule is acceptably small. * * * [T]he Commission believes that there is reasonable assurance of safety for continued operation until implementation of a rule is complete. The implementation
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schedule contained in this rule. balances the need for careful analysis and plant modifications with the desire to carry out the objectives of the rule as soon as possible.
Id. at 57522. Applicants therefore submit that proposed Contention 115 must be rejected as raising an issue which is tha subject of generic rulemaking.
- 10. Hydrogen (Contention 128)
The first paragraph of Eddleman proposed Contention 128 is a photocopy of Palmetto Alliance Contention 31 in the Catawba proceeding. Petition at 235. The Licensing Board in that proceeding rejected the proposed Palmetto contention for reasons which Applicants here support. See Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP , 15 N.R.C. (March 5, 1982), slip op. at 28 (hydrogen issues being addressed in the rulemaking process). In addition, we note that the Harris plant does not have the igniter system to which the contention refers. Rather, redundant electric hydrogen recombiners are used. See FSAR 6 6.2.5.2 and TMI App.
at 27.
The remainder of the contention, to the extent that it attempts to postulate a credible scenario resulting in combus-tible hydrogen being generated, fails to establish a basis in several respects. One obvious fault is that only one of two redundant diesel generators is needed to ruoply adequate power
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_-~
for safe plant shutdown. See FSAR $ 8.3.1.1.1.5. For all of thoce reasons, the proposed contention should not be admitted.
- 11. Miscellaneous (Contentions 10, 45, 116, 120, 132, 134 Eddleman proposed Contention 10 claims that there is no ovidence that the documents listed in Table 1.6-1 of the FSAR are up-to-date and sufficiently accurate for use in providing adaquate protection of the public health and safety. Petition at 53-55. In support of this contention, Mr. Eddleman argues that: (1) the older topical reports listed in Table 1.6-1 do not consider operating experience of large PWRs or the TMI-2 accident; (2) the Westinghouse reports are biased; (3) the Staff has not completed its review of "most" of the documents; and, (4) financial constraints have prevented Applicants from extensively reviewing these matters.
Initially, it must be pointed out that Table 1.6-1 is merely a consolidated listing of topical reports referenced by Applicants in various other sections of the FSAR. Mr.
Eddleman, however, makes no attempt to relate his generalized complaints about these reports to any deficiencies in the ESAR sections which specifically reference or rely upon the listed reports.47 Such broad-brush allegations as those made by 47 The one specific complaint identified by Mr. Eddleman that WCAP-8682/8683 does not include the effects of reracking to store additional spent fuel -- must fail for lack of basis.
(Continued Next Page)
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Mr. Eddleman, without the slightest showing of any basis for his suppositions, clearly do not meet the specificity and basis requirements of 10 C.F.R. 5 2.714(b) and Applicants therefore object to the admission of this contention. Indeed, Mr.
Eddicman himself recognizes the lack of specificity in proposed contention 10, when he states that additional specificity will require discovery of the Staff and Applicants. Petition at 55.
As Applicants discussed in section II.A (Requirements for Contentions), supra, discovery is not to be used as a means of establishing the basis for a contention.48 Proposed Eddleman Contention 45 alleges, in essence, that the piping layout and design of the Harris Plant is inadequate because certain components were fabricated under outdated ASME Codes and other standards. Petition at 124. Applicants (Continued)
Mr. Eddleman has not discussed how Applicants' reliance on this report (or if, indeed, it is relied upon) would be impacted by failure to consider reracking nor has a showing been made that reracking will be undertakem. Finally, Applicants note that these reports were merely submitted to the Staff as background information and are not under formal review. FSAR Table 1.6-1 at 1.6-6.
48 The holding of the Catawba Board allowing admission of vague contentions pending the issuance of relevant information such as the SER (Catawba, supra, slip op. at 11-12) would not be relevant here. Applicants consider it highly unlikely that published reports will contain the information sought by Mr.
Eddleman. Rather, Mr. Eddleman is requesting permission to 4 conduct a wide-ranging fishing expedition that is unlikely to uncover any relevant information.
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ccknowledge that certain components of the reactor coolant system pressure boundary do not meet the Code criteria of 10 C.F.R. 5 50.55a.49 However, this fact was recognized during the Construction Perm'it review, at which time Applicants rcquested and were granted an exemption from the provisions of this regulation. See NRC Safety Evaluation Report Related to Construction of Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4, Supplement No. 3, July 1977, at 5-1 through 5-4; see also FSAR S 5.2.1. While this was not a contested issue in the Construction Permit proceeding, the Licensing Board did find tho facility design adequate. See, in this docket, LBP-78-4, 7 N.R.C. 92, 103-105 (1978).
Mr. Eddleman has not, however, set forth with particu-larity any safety deficiencies resulting from the use of ASME Codes slightly older than those approved under 10 C.F.R.
5 50.55a nor has Mr. Eddleman in any way attempted to dispute the basis for the Staff's approval of Applicants' exemption request. The sole consequence alleged by Mr. Eddleman is that Applicants may not be able to comply with the potential resolution being prepared by the Staff with respect to the 50 generic water hammer issue (Unresolved Safety Issue A-1) 49 Mr. Eddleman, however, is incorrect in asserting that the steam generators were not manufactured in accordance with the applicable Code, in that they meet the requirements of 10 C.F.R. 5 50.55a. See FSAR Table 5.2.1-1.
50 Applicants' plans for resolution of the water hammer issue is also raised in Eddleman proposed Contention 107, to which Applicants have responded below.
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Mr. Eddleman, however, has shown no nexus between this unresol-ved safety issue and the exemption to 10 C.F.R. 5 50.55a granted by the Staff. Applicants submit that, absent such a showing as required by 10 C.F.R. 5 2.714(b), proposed contention 45 should not be admitted.
Proposed Contention 45 also attempts to link the exemption from 10 C.F.R. 5 50.55a to several undocumented allegations regarding construction and testing deficiencies. Mr. Eddleman provides absolutely no specific details regarding these alleged deficiencies nor any factual aupport for his claims. These allegations must therefore be rejected as lacking the requisite specificity and basis. See also Applicants' response to proposed Contention 41, supra.
Proposed Eddleman Contention 116 asserts that the fire protection provided for the plant computer system is inadequate in that it does not meet the requirements of GDC 3 (App. A to 10 C.F.R. Part 50), 10 C.F.R. 5 50.48 and Appendix R to 10 C.F.R. Part 50. Mr. Eddleman additionally alleges that a fire-induced computer failu,re could lead to an inability to safely operate and shutdown the plant. Petition at 226.
Initially, it must be pointed out that the underlying assumption of proposed Contention 116 -- that the plant computer is required for safe operation and shutdown -- is incorrect.51 The plant computer will serve merely as an 51 It must also be pointed out that Mr. Eddleman's reference to the ICS is incorrect. The ICS (Integrated Control System)
(Continued Next Page)
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cid to the control room operators in monitoring certain plant partmsters; the plant computer will not serve a control function. The plant computer will thus function only as a convenient backup to the primary, safety-related instru-mantation and controls provided in the control room.
(Dnacriptions of these instrument and control systems can be found in Chapter 7 of the FSAR.)
Proposed Contention 116 also alleges general inadequacies in the level of fire protection afforded to the plant computer system.52 The measures undertaken by Applicants to provide adsquate fire protection are described in Section 9.5 of the ESAR and a Fire Protection Hazards Analysis is contained in Appendix 9.5A to the FSAR (the fire protection measures (Continued) is unique to Babcock & Wilcox nuclear power reactors. The Harris Plant does not have an ICS, although the non-safety-re-lated control systems described in FSAR S 7.7 do perform some of the functions performed by the ICS in B&W plants.
52 Contrary to Mr. Eddleman's assertion, the fire protection system was designed to meet the provisions of GDC 3. See FSAR S 9.5.1.2.1. At the time that the Harris Plant license appli-cation and FSAR were submitted, the current version of 10 C.F.R. S 50.48 and Appendix R to Part 50 were not in force.
However, pursuant to the request of the Staff, Applicants are currently performing an evaluation comparing the Harris Plant fire protection system with the criteria set forth in Appendix R. It is anticipated that a portion of the evaluation results ,
will be provided in Amendment 3 to the FSAR, with the remainder to be submitted to the Staff in September, 1982. Applicants intend to conform with the provisions of 10 C.F.R. S 50.48 and Appendix R.
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l cocociated with the computer room are specifically discussed in ESAR 5 9.5.1.2.4, 9.5A.11 and 9.5A.12). Mr. Eddleman, however, does not address this description of the fire protection system nor attempt to identify any specific deficiencies in the level of protection afforded to the plant computer system or to any other plant component. On the basis of the foregoing, Applicants submit that proposed Contention 116 has failed to set forth the requisite basis and specificity and therefore must not be admitted as an issue in controversy in this proceeding.
Eddleman proposad Contention 120 contends that the Harris Plant design is insufficient to protect against the effects of shrapnel, missiles and other high impact effects of failures inside containment. Petition at 228. Mr. Eddleman's asser-tions are very _:neral and do not postulate any specific design deficiency resulting in such internally generated missiles.
While the Board might view such vague contentions as marginally acceptable were the information upon which the contention is based not yet available, such is not the case here.
Sections 3.5, 3.6 and the Appendix to Section 3.6 of the FSAR present an extremely detailed analysis of the effects of postulated missiles and jets and pipe whip resulting from pipe ruptures and describes the measures taken by Applicants to protect against these events. See also FSAR S 3.1.4 (compliance with General Design Criterion 4). Absent any specific allegations t
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regarding asserted deficiencies in Applicants' analysis and protective measures, Applicants contend that proposed Contention 120 must be rejected as failing to meet the basis and specificity requirements.of 10 C.F.R. $ 2.714(b).
Eddleman proposed Contention 132 claims that the design of tha Harris control room does not meet the " regulatory require-mants" of NUREG-0660, NUREG-0694 and NUREG-0737 53 in that it lacks sufficient instrumentation for detecting inadequate cora cooling (ICC) and, further, that the control room has not boon subjected to a human factors review. Petitiom at 239.
Applicants submit that this contention lacks specificity and basis, as discussed below, and therefore should not be admitted.
Mr. Eddleman's allegation that the Harris control room design is inadequate is premised upon a supposed lack of ICC detection instrumentation. Applicants' description of the manner in which they intend to comply with Recommendation 2.1.3.b of the Lessons Learned Task Force (" Instrumentation for Detection of Inadequate Core Cooling") is set forth at pages 13 through 19 of the TMI Appendix to the Harris FSAR. Proposed Conter. tion 132 does not specifically dispute the efficacy of
, Applicants' proposal for detecting ICC -- in fact, Mr. Eddleman 53 As discussed in our response to Eddleman proposed Contention 73, the TMI Action Plan recommendations do not carry L
the weight of requirements imposed by regulation.
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totally fails to reference this description. Absent a discussion of the manner in which the proposed ICC monitoring system is deficient, Applicants contend that proposed Contention 132 fails to present a litigable issue.
With respect to Mr. Eddleman's assertion that Applicants havo failed to perform a human factors review of the Harris control room, Applicants, on June 1, 1982, informed the Staff that a detailed control room design review had been performed by the Essex Corporation, in compliance with item I.D.1 of NUREG-0737, and that certain control room modifications are planned. Therefore, there is no basis for Mr. Eddleman's contention that Applicants have not performed a human factors review of the control room. As in the case of Dr. Wilson's Contention IV.B(d), if Mr. Eddleman develops specific areas of concern with respect to the design of the Harris control rooms after he reviews the control room report, he would be permited to raise promptly new contentions based on that information without timeliness objections from Applicants.
Proposed Eddleman Contention 134 claims that Applicants ,
have not demonstrated that the Harris Plant diesel generators are capable of providing reasonable assurance that the public
' health and safety will not be endangered in the event of a loss of offsite power. Petition at 239. As with many of Mr.
lEddleman's proposed contentions, Contention 134 is merely a ivague, generalized statement of concern which does not set I
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forth with particularity any alleged deficiencies specific to the Harris Plant. Applicants view this failure to set forth apacific allegations applicable to the Harris Plant as particu-larly disturbing in this case, where there is extensive information set forth in Sections 8.1 and 8.3 of the FSAR regarding Applicants' onsite power systems. Applicants therefore contend that proposed Contention 134 is utterly lacking in clarity and precision and must fail as not meeting the basis and specificity requirements of 10 C.F.R. 5 2.714(b).
J. Emergency Planning (Contentions 30, 32, 56, 57, 63, 81, 97, 99, 100, 100B, 117, 118, 121, 124)
Eddleman proposed Contentions 30, 32, 56, 57, 63, 81, 97, 99, 100, 100B, 117, 118, 121 and 124 raise a number of emergency planning issues. As set forth more particularly below, Applicants object to the admission of these contentions as variously lacking the requisite specificity, lacking sufficient bases, constituting a challenge to the Commission's emergency planning regulations, and attempting to raise issues which are the subject of rulemaking before the Commission.
While Applicants recogni=e, with respect to a number of emergency planning contentions, the absence of the critical documents generally necessary for the presentation of " bases with reasonable specificity" -- the draft emergency plans for the Harris plant --
it is clear that numerous contentions are
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ococntially unrelated to the actual plans. For example, while the precise configuration of the approximately 10-mile plume exposure pathway Emergency Planning Zone has not been deter-mined, it is clear that it will not extemd to a radius of 50 miles. Consequently, in such situations, where the contention clearly constitutes an attack on the Commission's regulations and their underlying bases, the proposed contentions are ripe for ruling by the Licensing Board, without awaiting the issuance of draft plans.
Similarly, although the draft emergency plans themselves have not issued, sections 13.3 of Applicants' FSAR includes a summary of Applicants' emergency plan, and other sections of the FSAR include detailed information on areas which are subjects of emergency planning, such as radiation monitoring.
Consequently, Applicants here present their positions on bases and specificity with respect to contentions which have been drafted without reference to the FSAR on subjects which are in fact covered in the FSAR, and contentions which have referenced the relevant information included in the FSAR but have failed to make correct use of that information.
Proposed Contention 30 asserts that emergency plans are deficient in failing to address potential radiciodine releases, in that they "do not provide the equipment, data, prompt notification of persons at risk, [and] radiation monitoring data * *
- necessary to make prompt decisions to protect the
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hocith and safety of the public, [and] do not assure that * *
- potassium iodide * ** [is] in the possession [of'the public]"
within 50 miles of the plant. Petition at 95. However, Mr.
Eddleman's proposed contention is so general and lacking in clarity and precision that it utterly fails to adequately put the parties on notice of the issues to be litigated.
Mr. Eddleman has not adequately identified the type of
" equipment" and " data" which he broadly asserts is necessary to protect the public from radioiodine releases. Particularly, Mr. Eddleman has failed to identify any specific inadequacies in Applicants' effluent monitoring system, detailed in sections 11.5, 12.3.4, and 13.3.7.3.1 of the FSAR. Further, Mr.
Eddleman has failed to adequately specify the " prompt notifica-tion" system which he asserts is necessary to protect the public from releases of radiciodine. To the extent that his contention may be read to suggest that a no tification system other than that required by 10 C.F.R. Part 50, App. E, 6 IV.D.3 is necessary, that portion of the contention constitutes an impermissible challenge to the Commission's regulations.
Finally, for the reasons set forth in Applicants' response to Part D of proposed Contention 29, that part of proposed Contention 30 which raises the subject of potassium iodide is lacking in specificity and bases. Moreover, to the extent that Mr. Eddleman asserts that emergency planning (including, e.g.,
consideration of administration of potassium iodide) must
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extend beyond the approximately 10 mile plume exposure pathway Emsrgency Planning Zone (" plume EPZ"), that part of the contention constitutes an impermissible challenge to the Commission's emergency planning regulations, specifically 10 C.F.R. 5 50.47(c)(2). See Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-82 __, " Memorandum and Order (Reflecting Decisions Made Following Prehearing Conference),"
slip op. at 25-26 (March 5, 1982).
The Commission's regulations (e.g., 10 C.F.R. 5 50.47 and Appendix E to 10 C.F.R. Part 50, 45 Fed. Reg. 55402 (1980)]
clearly establish a plume EPZ approximately 10 miles in radius for airborne exposure to radioactive materials. Within this EPZ, Commission regulations require specific actions to protect the public health and safety in the unlikely event of an accident. To the extent that Mr. Eddleman takes issue with the size of the plume EPZ established by Commission regulations, that part of his proposed Contention 30 is clearly a proscribed attack upon those regulations and their bases. 10 C.F.R.
5 2.758. Absent a clear showing of special circumstances, not presented here, that part of the contention cannot be admitted as an issue in this proceeding. The proper forum for consider-ation of such a proposal is the Commission, which now has before it the December 21, 1981 petition of the Citizens' Task Force, Docket No. PRM-50-31, which seeks, inter alia, the extension of the plume EPZ to a radius of approximately 20 miles.
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In short, Eddleman proposed Contention 30 should be rojected because it is lacking in specificity end bases, constitutes an impermissible challenge to the Commission's regulations, and seeks to raise a subject which is presently in rulemaking before the Commission.
The general thrust of proposed Contentions 32, 56 and 63 is that emergency planning fails to provide for adequate msdical care for the contaminated wounds and radiation injuries of members of the public. Proposed Contention 32 asserts that emergency planning fails to provide for adequate warning to the public of the risk of contaminated cuts and wounds, and fails to provide for adequate medical treatment for such injuries.
Petition, at 98-99. Applicants specifically object to Part (B)(3) of the proposed contention, which speculates that special consideration must be given to planning for treatment of individuals with contaminated wounds who are also suffering from " panic and psychological stress" (presumably resulting from the accident), since, it is alleged, those individuals will be unable to care for themselves. Mr. Eddleman has advanced no basis whatsoever for his underlying assumption that panic and psychological stress would result from an accident and would impair the public's ability to take appropriate protective actions. Applicants further object to the conten-tion to the extent that it asserts that emergency planning must provide for medical treatment for persons "perhaps within 50 or
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100 miles" of the plant. To the extent that the contention seeks to require such planning beyond a radius of approximately 10 miles, it constitutes an impermissible attack on the Commission's emergency planning regulations, and seeks to raise a subject which is presently in rulemaking.
Proposed Contentions 56 and 63 are virtually identical, and generally assert that emergency planning is deficient in that it does not assure adequate medical treatment for members of the public injured by radiation, in that it does not provide for medical care "on a mebile basis," does not assure the availability of sufficient facilities, does not plan to utilize facilities beyond a 30-mile radius (although, it is alleged, closer facilities may be contaminated), and does not consider l the medical consequences of a " Class 9" accident. Petition at 150, 166. While Contention 56/63 improves upon Contention 32, Contention 56/63 (phrased as proposed) so mixes contention and bases as to be nonlitigable.
Though the provisions for medical care for radiation-injured members of the public (including those with contaminated wounds) may be the subject of a cogninble conten-tion in this proceeding, Mr. Eddleman's generalized assertions in Contentions 32, 56 and 63 -- necessarily formulated without reference to the emergency plans themselves -- must necessarily lack basis and are fatally nonspecific. While it is inappro-priate to admit any contention on the subject at this time,
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Applicants recognize that the issuance of draft emergency plans will constitute good cause for the filing of new contentions.
Tho appropriate course, then, is for Mr. Eddleman to review the cmorgency plans when issued and thereafter submit specific contentions, with bases, with respect to any deficiencies he hen identified in the provisions for the medical. care of radiation-injured members of the public.
Proposed Contention 57 consists of an introduction and 4 parts, raising numerous unrelated emergency planning matters.
Petition at 151-53.
Part A asserts that the emergency plan is deficient because "[i]t doesn't yet exist." This is an uncontested assertion of fact. Applicants do not dispute that emergency plans which comply with the Commission's regulations must be prepared prior to commercial operation of the Harris plant.
However, part A is so lacking in clarity and specificity that it utterly fails to put the other parties on notice of the issues for litigation and must therefore be rejected.
Similarly, part D asserts that the emergency plan will have specific deficiencies which can be identified only after an examination of the plan itself. As examples of such defi-ciencies, Mr. Eddleman provides only a laundry list of broad areas such as " training," " manning," " times and methods of evacuation" and "means of locating the plume and assessing its dangers." Again, these generalized assertions clearly lack the
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specificity required of a litigable contention; nor has Mr.
Eddleman supplied any bases for his charges. While it is not appropriate to admit such contentions as presently worded, Applicants recognize that the issuance of draft emergency plans will constitute good cause for the filing of new contentions.
The appropriate course, then, is for Mr. Eddleman to review the emergency plans when issued and then submit specific conten-tions, if any, with respect to any deficiencies he has identified in the newly-available information in the emergency plans.
Part B asserts that the emergency plans are deficient in that they do not include " realistic estimates of the effects of Class IX accidents as required by the fact that such an accident has occurred, at TMI-2." However Mr. Eddleman has completely failed to explain how such " realistic estimates" should be incorporated into the plans. The contention therefore lacks the specificity required of a litigable contention.
Moreover, to the extent that Mr. Eddleman would have the emergency plans consider the effects of " Class 9" accidents by enlarging the plume EPZ beyond a radius of approximately 10 miles, Part B of the contention is a clear challenge to the Commission's regulations, and is without basis. In fact, the entirety of the Commission's new emergency planning regulations were promulgated after -- and indeed included consideration of
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tha TMI-2 accident. See generally, 45 Fed. Reg. 55402, 55403 (1980), at " Rationale for the Final Rules."
The basis for establishing the size and nature of the EPZs set forth in Commission regulations is contained in, inter alia, NUREG-0396, " Planning Basis for the Development of State cnd Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," NUREG-0396; EPA 520/1-78-016 (December 1978). Appendix E to 10 C.F.R. Part 50, note 2. NUREG-0396 was developed by a task force composed of recognized NRC and EPA experts on the effects of radioactivity.
In recommending the size and nature of the EPZs, this planning document specifically recognized the possibility of a range of accidents including worst case Class 9 accidents.
The EPZ recommended is of sufficient size
[10 mile radius] to provide dose savings to the population in areas where the projected dose from design basis accidents would be expected to exceed the applicable PAGs
[ Protective Action Guidelines] under unfavorable atmospheric conditions * ** *
[C]onsequences of less severe Class 9 accidents would not exceed the PAG level outside the recommended EPZ distance. In addition, the EPZ is of sufficient sice to provide a substantial reduction in early severe health effects (injuries or deaths) in the event of the more severe Class 9 accidents. [NUREG-0396, at 16-17.]
Appendix I of NUREG-0396 further explained that the 10 mile EPZ was designed to provide full protection to the public
,in the event of any Class 9 accident.
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T -
A b
r.
Class 9 accidents cover a full spectrum of ,
releases * * *
- The lower range of the spectrum would-include accidents in which a core " melt-through" of the' containment would occur * * * * [T]he doses from -
" melt-through" releases * *
- generally would not exceed even the most restrictive . ,
PAG beyond about 10 miles from a power plant. The upper range of the core-melt accidents is categorized by those in which the containment catastrophically fails and releases large quantities of radioactive materials directly into the atmosphere because of over-pressurization or a. steam explosion. These accidents have the potential to release very large quantities
- of radioactive materials. There is a full spectrum of releases between the lower and upper range with all of these releases involving some combination of atmospheric and melt-through accidents. These very severe accidents have the potential for causing serious injuries and deaths. '
Therefore, emergency response for these.
conditions must have as their first priority the reduction of early severe health effects. Studies have been per-formed which indicate that if emergency action such as sheltering or evacuation were taken within about 10 miles of a' power plant, there would be significant savings of early injuries and deaths even from the most " severe" atmospheric releases.
[NUREG-0396, at I-6 to I-7. Footnote omitted].
Commission regulations also reference NUREG-0654,
" Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," NUREG-0654/ FEMA-FEP-1, (Januar. 'a80), as providing a basis for selection of the sf4- av aature of the EPZs. 10 C.F.R. $ 50.47, note 1. NUREG-d654, a joint NRC and Federal Emergency Management Agency (FEMA) document, adopted
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E tha cpproach recommended in NUREG-0396 regarding the size and nature of'the EPZs and noted that its conclusions were based upon, inter alia, consideration of a range of potential accidents to include worst case core melt accidents involving a containment breach. NUREG-0654, at 7. In short, Commission emergency planning regulations were promulgated after thorough consideration of, inter alia, accidents of all types, including worst case core melt " Class 9" accidents.
In sum, Applicants oppose the admission of Part B of Contention 5'i as lacking in specificity, without basis, and i
constituting a veiled challenge to the fundamental basis of the Commission's emergency planning regulations.
Part C asserts that the plume EPZ is not appropriately set :
in that it does not address the specific needs of certain populations, does not " realistically estimate notification and evacuation times for an accident occurring between midnight and 6 a.m.," and do?- act " provide for effects outside 10 miles or potential maximum radiation effects in the EPZ as far as evacuation is concerned." Finally, it is asserted that the evacuation plan does not provide for the evacuation of Chapel Hill and does not fund emergency planning for state and local governments (thus allegedly failing to recognize asserted needs for independent monitoring, prompt warning, and a means to
, evacuate the population).
l
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To the extent that Part C seeks to extend the plume EPZ bsyond a radius of approximately 10 miles, to include hospital patients, jail prisoners and college students in Chapel Hill,
, Raleigh and Durham, that part of Contention 57 constitutes a challenge to 10 C.F.R. 5 50.47(c)(2). While particular attention must be devoted to emergency planning for special facility populations (such as the hospitalized, imprisoned and school students) within the 10-mile EPZ, see, e.g., NUREG-0654, Critoria J.10.d and J.lO.e and Appendix 4, at 4-3, 4-8, the existence of special facility populations outside the 10 mile radius is not one of the factors to be considered in determin-ing the exact configuration of the EPZ. See 10 C.F.R.
5 50.47(c)(2). The Apex hospital is within a 10-mile radius of Harris, and therefore will be included in the plume EPZ; accordingly, to the extent that Part C seeks to extend the plume EPZ to include patients at the Apex hospital, it is without basis. Mr. Eddleman's assertion that the 10-mile EPZ is inadequate to provide for children under 6, persons under 18, and pregnant women similarly fails as a contention; again,
- neither the age nor the reproductive status of the general population outside the 10-mile radius is a factor to be considered in determining the exact configuration of the EPZ.
- See 10 C.F.R. 5 50.47(c)(2). Thus, that portion of Part C is also a challenge to the Commission's regulations.
i
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Applicants further object to that portion of Part C that asserts that the plume EPZ "does not realistically estimate notification and evacuation times for an accident occurring between midnight and 6 a.m." Mr. Eddleman has failed to provide any basis for the proposition that the EPZ should ostimate notification and evacuation times. Indeed, there is simply no logical basis in fact for such an assertion; Applicants believe that the contention evidences a fundamental misunderstanding of the EPZ concept. The plume EPZ is nothing more than the geographic area defined about a reactor as a basis for planning; it does not include any estimates of notification and evacuation times -- realistic or otherwise.
Nor has Mr. Eddleman specified how estimates of notification and evacuation time should be factored into the EPZ. Finally, to the extent that Mr. Eddleman asserts that factors such as notification and evacuation times should be considered in some (unspecified) fashion in determining the exact configuration of the EPZ, that portion of the contention should be rejected as a challenge to 10 C.F.R. S 50.47(c)(2), which does not provide for consideration of such factors in defining the EPZ.
Applicants also object to that portion of Part C which asserts that the plume EPZ does not " provide for effects outside 10 miles or potential manimum radiation effects in the EPZ as far as evacuation is concerned." The first part of the assertion is yet another challenge to 10 C.F.R. $ 50.47(c)(2),
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and therefore must be rejected. The second part of the assertion is so lacking in clarity and specificity that it fails to put the parties on notice of the issues for litiga-tion; nor has Mr. Eddleman advanced any basis for his assertion that the EPZ does not consider " maximum radiation affects."
Applicants therefore oppose the admission of the quoted portion of Part C.
The basic thrust of the concluding paragraph of Part C of Contention 57 again criticizes Harris emergency planning for not including Chapel Hill, which is well beyond the 10 mile radius of Harris. Accordingly, that portion of the contention must be rejected as a challenge to 10 C.F.R. S 50.47(c)(2).
Moreover, each of the specific concerns expressed in the concluding paragraph of Part C -- including the expansion of the EPZ and the funding of state and local emergency planning (in recognition of asserted needs for independent monitoring, prompt notification, and means of evacuation) --
are directly raised in the Citizens' Task Force petition for rulemaking now before the Commission.
In sum, for all the stated reasons, Applicants oppose the admission of Contention 57.
Proposed Contention 81 asserts that the emergency plans are deficient because they have not been tested through the exercises and drills required by the Commission's regulations.
Petition at 188. However, there is no requirement that such
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exorcises and drills have been conducted at this time; nor do Applicants dispute that a program of exercises and drills which complies with the Commission's regulations must be in place prior to the operation of harris. Such a program is described in section 13.3.8.1.5 of the FSAR. Mr. Eddleman has failed to identify any deficiencies in the exercise / drill program described there; indeed, he has not even referenced that section of the FSAR. Accordingly, proposed Contention 81 must be rejected as lacking in specificity and bases.
The general thrust of proposed Contention 97 is that the emergency plan does not "take sufficient account of, or provide means to deal with" rapidly-escalating emergencies. Petition at 204-05. However, Mr. Eddleman has neither explained how the plans fail to address rapidly-escalating emergencies, nor has he detailed what remedial measures he asserts are necessary to adequately provide for such emergencies. Particularly, Mr.
Eddleman has not identified any deficiencies in the concept of operations of emergency response (described in section 13.3.6 of the FSAR) which would render it ineffective in a rapidly-escalating emergency; in fact, Mr. Eddleman has not even referenced that section of the ESAR, though it describes the procedures for activation of the emergency response organiza-tion, assessment of the event, and corrective and protective actions. Applicants therefore oppose the admission of Contention 97 on the ground that it is so lacking in
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cpscificity that it fails to give other parties adequate notice of the issues for litigation.
Proposed Contention 99 asserts that the emergency plans cro deficient in that they do not assure that the plans will be l
l kapt up to date with respect to certain categories of informa-tion. Petition at 206. Though the provisions for updating the 1
plano may be the subject of a cognizable contention in this proceeding, Contention 99 -- necessarily framed without reference to the plans -- is necessarily lacking in basis and fatally nonspecific. While it is inappropriate to admit this contention at this time, Applicants recognize that the issuance of draft emergency plans will constitute good cause for the filing of new contentions. The appropriate course, then, is for Mr. Eddleman to review the plans when issued and submit a specific contention, with bases, with respect to any defi-ciencies he identifies in the provisions for updating the plan.
Proposed Contentions 100 and 100B assert that the emergency plans are deficient in that they do not provide for the decontamination of farmlands, homes and food after " Class 9" and " Class 10" accidents, respectively. Petition at 208.
However, Mr. Eddleman references no authority which would require planning for decontamination of farmlands and homes, and Applicants know of none. Rather, in promulgating the new emergency planning regulations, the Commission expressly rejected requiring such provisions, reasoning that "public
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l l
health and safety should take clear precedence over actions to protect property. Measures to protect property can be taken on an ad hoc basis as resources become available after the accident." 45 Fed. Reg. 55402, 55407 (August 19, 1980).
Applicants oppose the admission of proposed Contentions 100 and 100B as challenges to the Commission's regulations, to the extent that those contentions assert that planning for the decontamination of farmlands and homes is required.
On the other hand, Applicants acknowledge that the Commission's emergency planning regulations do require the development of appropriate protective actions for the ingestion exposure pathway EPZ, presumably including measures for the decontamination of food. 10 C.F.R. S 50.47(b)(10).
Nevertheless, Mr. Eddleman's generalized prospective criticism of emergency planning for an alleged failure to provide for the decontamination of food clearly lacks the specificity required of a litigable contention. While it is not appropriate to admit this part of the contention as presently worded, Applicants recognize that the issuance of draft emergency plans will constitute good cause for the filing of new contentions.
The appropriate course, then, is for Mr. Eddleman to review the draft emergency plans when issued and then submit specific contentions, if any, with respect to any deficiencies he identifies in the provisions for the decontamination of food described in those plans.
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The general thrust of proposed Contention 117 is that the emergency plans are deficient in that they do not include adequate provisions for mobilizing wrecker trucks and other equipment to keep evacuation routes clear. Petition at 227.
Applicants specifically object to Mr. Eddleman's bald specula-tion that not only will accidents occur in an evacuation, but
" fear and panic will make them more likely." Despite a vast body of civil defense literature on actual evacuations, Mr.
Eddleman has advanced no basis whatsoever either for the proposition that " fear and panic" would result from an accident or for the proposition that, even assuming such reactions did occur, those reactions would increase the incidence of auto accidents. Applicants therefore oppose the admission of the assertions in Contention 117 of " fear and panic" as without basis. Applicants further object to the admission of Fr.
Eddleman's assertion that wreckers must be able to clear evacuation routes of accidents involving hazardous cargo. Mr.
Eddleman has failed to specify the types of " hazardous cargo" which he asserts should be considered in emergency planning; nor has he advanced any basis whatsoever for his assumption that such cargo is transported on the roads within the 10 mile EPZ. Applicants therefore object to that portion of Contention 117 which deals with wrecks involving hazardous cargo as lacking specificity and without basis.
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Though the adequacy of provisions for equipment to keep cvacuation routes clear may be the subject of a cognizable contention, proposed Contention 117 -- necessarily formulated without reference to the emergency plans -- is necassarily lacking in basis and if fatally nonspecific. While it is not appropriate to admit this contention at this time, Applicants 1 recognize that the issuance of draft emergency plans will constitute good cause for the filing of new contentions. The appropriate course, then, ir for Mr. Eddleman to review the plans when issued and submit a specific contention, with bases, with respect to any deficiencies in the provisions for wreckers and other equipment which he identifies in the plans them-solves.
Proposed Contention 118 asserts that the emergency plans are defective in that they do not assure "that hazardous materials and cargoes abandoned in the EPZ during an evacuation will be identified and secured and safeguarded during and after an evacuation." Petition at 227. Mr. Eddleman has fai1=d to identify in any fashion whatsoever the types of "haz:4rdous materials and cargoes" which he contends should be considered in planning. Nor has he advanced any basis whatsoever for his assumption that such materials and cargo exist within the 10 mile radius, or for his assumption that such materials and cargo -- if indeed they did exist within the 10 mile EPZ --
woald be " abandoned" in an evacuation, or for his assumption
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that -- if they did exist and were " abandoned" within the EPZ 2- they would need to be " secured and safeguarded" even in the absence of persons within the EPZ to disturb them. Applicants therefore object to the admission of proposed Contention 118 on the grounds that it lacks the requisite specificity and is aithout bases.
Proposed Contention 121 asserts that the emergency plans are inadequate because they " fail to address appropriate protective measures needed to provide radiological protection to all residents in the vicinity of the Harris plant who might be threatened with injury or death from an accident greater than a design basis accident." Petition at 229. This conten-tion is so lacking in specificity that it fails to give the other parties adequate notice of the issues for litigation, and nust therefore be rejected. Further, to the extent that the contention can be read to assert that a plume EPZ of approxi-nately 10 miles provides inadequate protection in a " Class 9" accident, the contention must be rejected as a challenge to the Commission's emergency planning regulations. 10 C.F.R.
i 50.47(c)(2). See discussion of Part B of proposed Contention 57, supra.
Proposed Contention 124 asserts that Applicants and the surrounding counties lack the experience and technical ability adequately to plan for emergencies and lack the capability to implement appropriate protective measures. Petition at 229.
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Though the experience and technical ability of Applicants and counties within the plume EPZ to plan for an emergency may be tha subject of a cognizable contention in this proceeding, Mr.
Eddlaman's generalized assertion plainly lacks the specificity required of a contention under the Commission's regulations.
While it is not appropriate to admit that part of Contention 124 as presently worded, Applicants recognize that the issuance of draft emergency plans will constitute good cause for the filing of new contentions. The appropriate course, then, is for Mr. Eddleman to review the emergency plans of Applicants and the counties, when issued, and then submit specific contentions, if any, with respect to any deficiencies he has identified based on the newly-available information in the emergency plans with respect to the emergency planning experi-ence and technical ability of Applicants and the counties.
Mr. Eddleman's further generalized assertion that Applicants and the counties lack the capability to implement appropriate protective actions as required by NUREG-0654 i
criterion J.9 is objectionable as a broad " catch-all" assertion which simply restates the ultimate cmergency planning issue, and fails to give the other parties any notice of the soecific issues for litigation. The second part of the contention is objectionable as it relates to Applicants on the additional ground that NUREG-0654 criterion J.9 does not require that an Applicant have the capability to implement protective actions;
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scthar, NUREG-0654 recognizes that the responsibility for the Nctucl implementation of protective actions rests with the l@teto cnd local governments.
For all these reasons, proposed Contention 124 should be sojected.
$. Sncurity Plan (Contentions 35, 54 (2nd), 133)
In proposed Contentions 35, 54 (2nd) and 133 Mr. Eddleman eceks to litigate the adequacy of Applicants' security plan for the Harris plant. Petition at 102, 143, 239. There are certain specific threshold requirements which must be met beforo an intervenor may have access to and litigate any aspec t of an applicant's security.
A security plan for a nuclear facility is highly sensi-tive, confidential information as to which Commission regula-tions demand protection from disclosure. 10 C.F.R. $$ 2.790, 73.21. While alleged inadequacies in a security plan may be cognizable contentions in a licensing proceeding, disclosure of the plan is permissible only to the extent deemed necessary by the presiding officer to a proper decision in the proceeding and only if made subject to carefully fashioned protective seasures. 10 C.F.R. S 2.744. _See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-410, 5 N.R.C. 1398 (1977).
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The Appeal Board has established guidelines, endorsed by the Commission,54 which prescribe the conditions under which and the extent to which a security plan may be disclosed.
Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant Units 1 and 2), ALAB-592, 11 N.R.C. 746 (1980); Pacific Gen and Electric Company (Diablo Canyon Nuclear Power Plant Units Nos. 1 and 2), ALAB-410, 5 N.R.C. 1398 (1977).
First, to the extent that any portion of the plan is disclosed, disclosure is limited to a " sanitized" version of such portion of the plan, i.e., one from which has been deleted all details not necessary for proper evaluation of its ade-quacy. Diablo Canyon, ALAB-410 at 1405.
Second, disclosure is to be limited to those portions of the plan which the intervenor demonstrates to be relevant to and necessary for the litigation of his contention. See Diablo Canyon, ALAB-410, at 1404, 1405. As the Appeal Board stated in Diablo Canyon, ALAB-410, the issue of whether a security plan may be disclosed must be resolved by ". . . a balancing of the interests of the ' person. . . urging nondisclosure and the public interest in disclosure. 10 C.F.R. 5 2.790(a)."
ALAB-410 at 1404. One of the means by which these competing interests are balanced is the limiting of an intervenor's 54 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units Nos. 1 and 2), CLI-80-24, 11 N.R.C. 775, 777 (1980).
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)ccaco to those portions of the plan which are relevant to the tasua he wishes to litigate. Applicants submit that if the
.Sublic interest and the common defense and security are to be trocorved, wholesale disclosure of the security plan is not
- 1cceptable . Applicants understand that an intervenor may be Intblo to articulate a contention concerning the security plan 71th the generally required degree of specificity until he has lad access to the plan. Applicants urge, however, that in view Sf the important interests to be protected, an intervenor must Bact a threshold level of minimal specificity by identifying ho particular areas of the plan as to which he is concerned.
enly in that way can disclosure be limited to relevant portions
>f the plan.
Third, the intervenor has the burden of demonstrating that dus plan will be reviewed by an expert witness who possesses dua technical expertise to evaluate the portions of the plan as to which disclosure is sought. Disclosure is to be limited to
$ hose portions of the plan which the intervenor's expert
'?itness is competent to evaluate. ALAB-410, at 1404, 1406.
To the extent disclosure is ordered, it must be accom-411shed pursuant to a protective order and affidavits of sondisclosure such as those issued and signed in Diablo Canyon, sppeal Board Protective Order on Security Plan Information April 3, 1980). ALAB-410, at 1404, 1406. Of key importance 4ere is whether a protective order will offer adequate
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cacurity, i.e., whether the proposed recipient of the informatiom is likely to abide by such an order. See ALAB-410 at 1404. In addition to the intervenor's expert witness, therefore, access to a security plan has been limited to counsel for the intervenor. See Diablo Canyon, ALAB-410 at 1405. As the Appeal Board noted in ALAB-410,"the law presumes that counsel will abide by their oaths and comply with protec-tive orders." ALAB-410 at 1406. In the instant proceeding, to the extent that disclosure of any aspect of the Harris security plan is otherwise warranted, access to the plan should be limited to the Kudzu Alliance, the only petitioner which is represented by counsel. With respect to Mr. Eddleman, CHANGE /ELP and CCNC, the three other intervenors which have raised issues regarding the Harris plant security plan, there do not exist meaningful restraints which correspond to the lawyers' ethical obligation as an officer of the courts to adhere to the letter of such a protective order.
Having established the principles governing the admissibi-lity generally of contentions concerning Applicants' security plan for the Harris plant, we believe that it is premature to address the admissibility of any of the specific proposed contention relating to the plan. Rather, Applicants urge the Board that the better course would be that adopted by the Licensing Board in the Catawba proceeding, whereby the Board asked the petitioners to consider the procedural complexities
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1
1 and costs associated with raising security plan issues and to edviso the Board within a prescribed time as to whether the intorvenors wish to pursue such issues. See Duke Power Company (Catawba Nuclear Station, Units 1 and 2) DKT No. 50-413-OL and 50-414-OL, Memorandum and Order (March 5, 1982) at 37-39.
Patitioners Eddleman, CHANGE /ELP and CCNC must consider, for instance, whether-they want to retain counsel. And all of the petitioners must decide whether they wish to employ a security plan expert. The Petitioners must also consider whether they are willing to accept the restrictions on access to the plan that would be contained in a protective order.
If any of the petitioners demonstrates an intention to pursue security plan issues, it will be appropriate at that time for Applicants and the Staff to respond to its specific proposed contentions and for the Board to rule on them. Any contention which meets the threshold level of minimal spe-cificity discussed above and is not otherwise inadmissible should be admitted conditionally pending expert witness review of the security plan. Subsequent to such review, the intervenor should be required to restate the contention with the degree of specificity ordinarily required and must provide an adequate basis to support it.
f
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L. Management Capability (Contentions.3, 42, 44, 101, 106, 123, 127, 127X)
Eddleman proposed Contention 3 is a broad-sweeping menagsment capability contention. Petition at 31-45.
Applicants will answer in turn the different contentions included within the proposed Contention 3 rubric.
Contention 3(a) is virtually identical to Kudzu's proposed
- Contention 4. Petition at 31-32. Applicants adopt here and refer the Board to their objection to the admission of Kudzu proposed Contention 4.
Applicants object to Contention 3(b), which is inaccurate and outside of the scope of this operating license proceeding.
Mr. Eddleman states in proposed Contention 3(b) that Mr. S. D.
Smith, who Mr. Eddleman describes as "CP&L's VP of Nuclear construction and operation," " lists no PWR construction experience at all in his qualifications." Petition at 32. In fact, Mr. Sheldon D. Smith has nothing to do with Operations.
Rather, he is the Vice President - Nuclear Plant Construction.
, FSAR S 13.1.1. 3 (L) (resume of Sheldon D. Smith). In l55 While CP&L's technical qualifications to operate the (Harris plant, including-the issue of management's competence to ido so, is clearly within the scope of this proceeding; CP&L's
- qualifications to design and construct the plant are not. That jmatter was reviewed and resolved at the construction permit jstage. See, in this docket, LBP-79-19, 10 N.R.C. 37 (1979).
(Moreover, contra _y to Mr. Eddleman's assertion, Mr. Smith's resume indicates that he has had three and a half years of man-
'agement experience primarily in the nuclear power plant field, responsible for overall management and supervision of major (Continued Next Page)
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f Emmary, Contention 3(b) is baseless and not relevant to this
.rococding. Accordingly, it should be rejected.
Proposed Contention 3(c) should be rejected by the Board or vagueness. Petition at 32-33. Here, Mr. Eddleman makes ho serious charge that Applicants have failed to use up-to-ate and, in many cases, readily available information in their ubmittals to the NRC, thereby " raising serious questions about pplicants' honesty in withholding information." Id.
- r. Eddleman's generally rhetorical castigation of Applicants' ntegrity includes only one specific alleged incident of ishonesty, viz., that Applicants withheld information in their ocember 31, 1980, cost estimate of SHNPP units 1 and 2; but hat allegation is supported by no facts or references whatso-ver. Thus, Applicants are not informed in any manner of why tr . Eddleman believes this cost estimate was dishonest, or of ny information which suggests such serious misconduct.
onsequently, proposed Contention 3(c) utterly fails to meet to specificity requirement of 10 C.F.R. S 2.714(b) and should e discarded by the Board.
Proposed Contention 3(d) challenges the adequacy of CP&L's ianagement primarily on the basis of the so-called Jacobstein Continued) o onstruction projects, while employed by Ebasco Services. FSAR 13.1.1.3(L). The resume also indicates that Mr. Smith has lone work for the NRC at Oak Ridge, Tennessee. Id.
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Report. Petition at 33-35. Applicants object to this contention.
Applicants oppose Mr. Eddleman's contention based on the Jacobstein Report for a number of reasons. The Jacobstein Roport is a document prepared by a consultant to the Public Staff of the North Carolina Utilities Commission (NCUC). The Public Staff is an agency completely independent from the NCUC, charged with the responsibility of representing the consumer in state rate proceedings. Thus, the Public Staff is a consumer advocate agency. Mr. Jacobstein prepared his report in anticipation of a pending contested rate proceeding concerning ccsts incurred during 1980 and 1981 outages at Brunswick. The purpose of the Jacobstein Report is to support the Public Staff's adversarial position in that proceeding; namely, that the costs incurred by CP&L should be disallowed because Brunswick's lower capacity factor due to outages should be paid for by CP&L, not by CP&L's customers. Thus, the Jacobstein Report was not intended to be, and does not purport to be an analysis of Brunswick operations from a safety perspective.
Rather, Mr. Jacobstein was interested in the allocation of costs stemming from the outages in question. Furthermore, the report expressly represents the interests of a party interested in attributing to CP&L the causes for the plant shutdowns.
Adding to this inherent bias is the fact that the Jacobstein Report has not been subject to any scrutiny, such as NCUC
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.rcvicw, nor has it been the subject of cross-examination.
Moreover, the report represents the views of only one individual. Finally, the Jacobstein Report does not purport to make findings about CP&L's general operational or management ccpability. The report deals only with very specific and often BWR plant-unique problems which occurred at Brunswick.
Conssquently, there is no ready nexus between the subject of this adversarial report and the operation of the Harris plant.
In the absence of a specific nexus drawn by Mr. Eddleman, the Jacobstein Report -- of questionable relevancy to begin with --
provides no basis for contentions in this proceeding.
Applicants also find no basis whatsoever for Mr. Eddleman's charge that another example of alleged mismana-gement not mentioned in the Jacobstein Report is Applicants' response to the Commission's fire protection rule.
Mr. Eddleman apparently is not seeking to litigate the adequacy of fire protection at Brunswick in proposed Contention 3(d).
Rather, Mr. Eddleman argues that in view of alleged past fire protection problems, vic., alleged problems which occurred at Brunswick before the 1975 Brown's Ferry fire and the development of new fire protection cris .ria, Applicants' current position on the new Commission; fire protection rule
" suggests a cavalier attitude toward safety." Petition at 34.
Applicants find this suggestion illogical. Applicants' legal and technical position in a rulemaking proceeding has, in
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Applicants' view, no connection whatsoever to conditions at Brunswick in 1974. Furthermore, Applicants are hard pressed to andarstand why the exercise of their legal right in taking a aincerely held position in response to a new rule constitutes svidence of "a cavalier attitude towards safety." Certainly, no evidence exists, nor is the suggestion made, that Applicants Will not abide by whatever fire protection requirements are imposed upon it by the NRC. Accordingly, the fire protection allegations in Mr. Eddleman's proposed Contention 3(d) are without basis and should be disallowed.
Proposed Contention 3(e) appears to challenge the adequacy of CP&L's management on the basis of allegedly poor health
@hysics practices at the Brunswick facility. Petition at 35-36. A section of the so-called Jacobstein Report is cited by Mr. Eddleman, along with an unidentified Brunswick internal Ecmo. Applicants object to the admission of proposed Contention 3(e) for the reasons specified in that portion of our response to proposed Contention 3(d) which addresses the Jacobstein Report. In addition, Mr. Eddleman's unspecified reference to a Brunswick memorandum has no nexus to operation of the Harris facility.
Proposed Contention 3(f) again generally challenges the adequacy of CP&L's management on the basis of the so-called Jacobstein Report. Applicants request that the Board not admit this contention both because it is redundant and because it is
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not supported by a sufficient basis. See Applicants' Response to Eddleman, Contention 3(d).
Proposed Contention 3(g) alleges that CP&L used an unqualified worker at the Brunswick and Harris facilities. Mr.
Eddleman does not describe any safety-related work done by this aorker which could jeopardize construction at the Brunswick facility, much less operation of Shearon Harris. Applicants therefore object to the admission of this contention.
Applicants also object to the extremely vague assertions in the second paragraph of Contention (g).
Proposed Contention 3(h) has two separate parts.
Contention 3(h)(1) is based entirely on Mr. Eddleman's misread-ing of Figure 13.2.1-1 in the FSAR and his recollections of a controversy during the construction permit remanded proceeding concerning the inclusion in Brunswick's technical spe-
- ifications of "SRO desirable" next to eight supervisory positions. See Carolina Power & Light Company (Shearon Harris luclear Power Plant, Units 1, 2, 3, and 4), LBP-79-19, 10 1.R.C. 37, 85-88 (1979). Mr. Eddleman asserts, essentially, that the same problem that arose in the Brunswick context appears to exist at Shearon Harris. However, the reference on ehich Mr. Eddleman relies -- ESAR Figure 13.1.1-1 -- belies his 1ssortion. That figure indicates the training schedule for supervisory personnel at Shearon Harris. Next to eight supervisory titles or organizational functions is a footnote
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i ono, which indicates that " BACKGROUND FOR [SRO) LICENSE, DESIRABLE." The same chart indicates the specific parts of the SRO license training program which the specified supervisory parsonnel will be attending,.and when they will be so attend-ing. Thus, unlike the situation in Brunswick, there is no ambiguity in the Harris FSAR, as the construction permit Licensing Board found present in the Brunswick technical cpecifications, with regard to any implied promise to meet a scnior operator license requirement. 10 N.R C. at 87. Rather, the commitment to train specified supervisory personnel in portions of the SRO training program is laid out in Figure 13.2.1-1. Because proposed Contentic- 3(h)(1) lacks a basis, it should be rejected by the Board.
The second portion of proposed contention 3(h), 3(h)(2),
is without any basis whatsoever and should also be rejected by the Board. This contention begins by asserting that it is not possible to evaluate the adequacy of management at Shearon Harris without seeing the individuals described in Applicants' organicational charts and plans. Petition at 39-40.
Mr. Eddleman references the ability of these individuals to work together, etc. This assertion is totally circular and without basis. Surely Mr. Eddleman does not seek to challenge the ability of the plant staff to operate SHNPP on the basis that their ability to do so has not been tested. Insofar as Mr. Eddleman is concerned about qualifications, the technical
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qualifications possessed by Applicants' supervisory personnel and the training requirements which these individuals will meet are indicated in the FSAR, or will be if the position is now open. Mr. Eddleman's subsequent reference to the insufficiency of levels of staffing is hollow -- no facts support this Eddleman assertion other than a diatribe of general technical problems Mr. Eddleman believes CP&L has had during the con-struction of SHl;PP and operation of Robinson 2 and Brunswick.
However, these alleged problems have no nexus to qualifications of individuals to perform their assigned duties during opera-tion of SHNPP. It is thus apparent that Mr. Eddleman has no more specific conce n than that "the individuals to be named to fill those positions open in the staffing charts submitted by CP&L are or will be insufficiently qualified by training, experience, temperament, psychological stability and ability to work effectively with others on difficult problems, to deal with the level of nuclear problems that CP&L can reasonably be expected to be naving." Petition at 40. This is not a contention, but a vague unsupported assertion. As such, it falls considerably short of the specificity and basis require-ments of 10 C.F.R. 5 2.714(b). Contention 3(h)(2) should therefore be rejected by the Board. -
Proposed Contention 3(i) asserts that a temporary pay cut to workers transferred to SENPP will precipitate problems akin to those previously experienced at Brunswick, including " poor
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ntnff morale, high staff turnover, and an inability resulting from those and other factors (including inadequate management end inadequate resources) to make necessary repairs" and oparate Harris safely. Petition at 41-45. No nexus is provided by Mr. Eddleman between a temporary pay cut for employees transferred to Shearon Harris, and the alleged problems experienced in the past at Brunswick. Mr. Eddleman speculates that all sorts of problems will arise at Shearon Harris; at the same time, however, Mr. Eddleman acknowledges that "[t]hese effects are difficult to specify in greater detail now," Petition at 44, although Mr. Eddleman says that an exception to this is "the result of what CP&L did at Brunswick in 1974-75." Id. This is completely illogical and circular.
In essence, Mr. Eddleman has no support whatsoever for his bald assertion that a temporary pay cut will lead to any sorts of problems at Shearon Harris. Such a wholly speculative contem-tion fails to meet the basis with reasonable specificity standard.
Proposed Contention 42 appears to challenge the adequacy of operator training and plant operating plans because of their failure to provide to operators " direct means of analyzing and seeing all at once the nature and condition (of] the core, cooling, radiation protection and control, and other safety
'related equipment in all known failure sequences . . .".
Petition at 122-123. No basis is provided for why these
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eemingly impossible requirements need to be met. Mr. Eddleman oes on to reference QA/QC deficiencies at Diablo Canyon, and roblems identified by Mr. Basdekas of the NRC Staff. Both of hese separate issues are raised by Mr. Eddleman in other ontentions. Applicants find these subjects of no relevance to he topic which introduces proposed Contention 42, operator raining and plant operating plans. Moreover, Applicants have ddressed these issues substantively when appropriately raised y Mr. Eddleman in other contentions. In the context of perator training and plant operating plans, however, these road issues are meaningless. Accordingly, the contention hould be rejected because it is unacceptably vague and aseless.
Proposed Contention 44 appears to challenge CP&L's anagement capability to safely operate SENPP because of CP&L's lleged failure to properly protect SHNPP against common-mode lectrical failures caused by fires, and because of CP&L's lieged failure to protect against fires at Brunswick, eferencing CLI-81-12. No basis is provided by Mr. Eddleman in upport of these alleged management failures; consequently, the ontention is inadequate. Furthermore, Applicants are per-lexed here by the reference to CLI-81-12, which is a St. Lucie decision concerning the loss of all AC power and the rela-ionship of that possibility at St. Lucie to design basis vents. See Florida Power & Light Company (St. Lucie Nuclear-
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Powar Plant, Unit No. 2), CLI-81-12, 13 N.R.C. 838 (1981).
This issue has no relationship whatsoever to management capnbility to meet fire protection requirements. Contention 44 should be rejected by the Board because of these deficiencies.
Mr. Eddleman's proposed Contention 101 states that Applicants' training schedule for Ros, SROs, " supervisors and others" does not provide sufficient staff for SHNPP control room operations to meet the minimum shift crew requirements.
Petition at 207. Applicants intend and will be required by the Staff to meet the current regulatory requirements for shift staffing and operator training. Applicants agree with Mr. Eddleman that if its operator training program preventr the requisite number of qualified individuals from serving on shift when the plant is in operation, a problem would exist.
However, Applicant is aware of no reason why either its initial operator training program or its requalification program would produce this result. See F.S.A.R. SS 13.2.1.1.2, 13.2.2.1.
Nec does Mr. Eddleman's proposed Contention 101 indicate any reason why CP&L's operator training schedule will result in &
shortage of operations staff. In view of this lack of basis, proposed Contention 101 should not be accepted by the Board.
Proposed Contention 106 is utterly lacking in basis with reasonable specificity and should be rejected by the Board. In this contention, Mr. Eddleman references what he perceives to be a myriad of problems in CP&L's management, quality assurance
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and quality control, and states that because the Staff "is unable to cope with" these, the health and safety of the public is no'c assured. Petition at 212. Mr. Eddleman does not state why or in what manner the Staff has been unable to cope with these alleged events. In addition, 32 other Eddleman conten-tions are generally alluded to, with the problems they discuss
" incorporated by reference herein." Id. Such a broad brush approach, devoid of any degree of clarit- a.id precision, fails 3
to meet the pleading requirements of 10 C.F.R. $ 2.714(b). A Proposed Contention 123 states that Applicants' SENPP reactor operator staff lacks sufficient " hands on" experience.
Petition at 229. Applicants believe that this contention should also be rejected by the Board because it lacks basis.
No reference is made to the qualifications of operators set forth in the FSAR; nor is reference made to the NRC criteria for determining operator qualifications. It is insufficient for Mr. Eddleman to simply aver that Applicants' " hands on" experience is insufficient. Without an adequate basis or particularization, the contention fails to meet the " basis with ,
reasonable specificity" standard.
Proposed Contention 127 appears to assert that CP&L cannot safely operate Shearon Harris in view of the findings of the NRC Staff's Systematic Assessment of Licensee Performance (SALP) Group in their assessment of the Robinson and Brunswick facilities published in NUREG 0834 (August 1981). Petition at
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234. Specifically, Mr. Eddleman challenges the ability of CP&L to adhere to operating and administrative procedures, presuma-bly at the Harris plant. Applicants object to this contention.
The purpose of the SALP assessment was to provide to Applicants indications of where improvements could be made in plant I operations at Robinson and Brunswick. The report does not in any mahner indict CP&L's management, nor conclude that the Robinson and Brunswick facilities are not safely operated.
Absent any specific references in Mr. Eddleman's contention to conduct at these facilities which relate to management defi-ciencies in the future operation of the Harris plant, proposed Contention 127 lacks a sufficient basis and should be rejected by the Board.
Proposed Contention 127X should be rejected by the Board.
It alleges that PWR " hands on" experience of Catawba operators is insufficient. Petition at 234. This surely is irrelevant in the SHNPP operating license proceeding. Insofar as Mr. Eddleman meant to assert that additional PWR experience is required of Shearon Harris operators, no reason is provided to support this assertion. See Applicants' response to Kudzu Contention 4. Also, proposed Contention 127 is very similar to proposed Contention 123, which lacks a basis. Accordingly, proposed Contention 137 fails to meet the requirements of 10 C.F.R. S 2.714(b) and should be rejected.
l
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M. Municipal Power Agency (Contentions 58 (2nd), 66, 94)
In this proposed Contention 58 (2nd), Mr. Eddleman seeks to raise the issue of the capability of the municipalities which comprise Applicant North Carolina Eastern Municipal Power Agency (" Power Agency") to " finance their share of operating and repair costs" of the Harris plant. Petition at 157.
This proposed contention in inadmissible in that it constitutes an impermissible challenge to the Commission's final rule which eliminates review of the financial quali-a fications of an electric utility applicant for an operating '
License. 47 Fed. Reg. 13750 (March 31, 1982). The rule, which was effective upon publication, amends, inter alia, 10 C.F.R.
6 50.33(f) and provides that "no information on financial qualifications . . is required in any application, nor shall e any financial review be conducted, if the applicant is an -
electric utility applicant for a license to . . . operate a -
production or utilization facility ... ." 10 C.F.R.
5 50.33(f); 47 Fed. Reg. at 13734.
The rule also amends 10 C.F.R. 6 2.104(c)(4) and Appen-dix A to 10 C.F.R. Part 2. Section 2.104(c)(4), as amended, excludes from the range of issues which may be addressed by -
presiding licensing boards in hearings on applications for -
operating licenses the issue of an electric utility applicant's financial qualifications. Id. at 13753. The term " electric
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utility" is defined in amended 10 C.F.R. % 2.4(s) to include "muni : pal; ties and state and federal agencies, including i
l associations of the foregoing." Id. at 13753. Power Agency is a public body created pursuant to the North Carolina
> ;;nt Municipal Power & Energy Act ("The Act"), North Carolina General Statutes, Chapter 1598, 5 159B1 et seg. (1975) Power Agency is compr sed of 32 North Carolina municipalities for the putocso af ;olntly planning, financing, developing, owning and operating electric generation and transmission facilities appropriate to
- heir leeds. Id. 5 159B-4. As such, Power igency is an " electric utility" within the meanang of 5 2.4(s)
- . promulgating its recent regulations in financial T. a .11. ; a t : 0 n s , the C omn. : s s ; o n has reaffirmed its view expres-s-1 . Fub ;1 5e: 1:e Comcan / cf New Hamoshire (Seabrook CLI ~9-1, ' N.R.C.
.5 t a t : r Units 1 and 2) 1 (19'8) and in the Mattre 3: Proposed Rulemaking, that a financial qualifications
.o' lew is of .ittle use in identifying issues of public health and s a r e t', 3ee 4' Fed. Reg. Tt 13~50. In the Notice of Et puJed Rulemaking, *'le Commission stated that it may be pro umed ~ hat regulated electr:c ut; lties (or those able tc .s e t the:: ?wn rates) wil. be able to meet the costs for safe corstruction and
"' e l' 3 t 1 2 n :f a 'uC1 eat product 1on ar
'r ; ; 2 a t; o: rac .; y 40 ro1 Reg. 41"io, 41'99 (l991)
_lg _
1 1
Eddleman Proposed Contention 58, therefore, is clearly prec aded fram consideration in this proceeding.
M o r a o */ e r , this proposed contention contains no allegation
'which even arguably challenges the assumptions underlying the final rule with respect to Appilcant Power Agency. It is, therefore, inadmissible on the further ground that it lacks spec.ttc;ty and is without stated basis. On November 3, 1981, the immiss;an issued the amendments to the construction permits for Harris Units Nos. 1, 2, 3 & 4 which added Power Agency as a :o-owner of as much as 16.5 ; interest in each of the tcur units. :n 1.s su i n g each of the amendments, the Commission expressly found that Power Agency "is qua11 fled to finance .tz proposed 16.5 percent undivided ownership interest in *he *ac;..ty See, Amendment No. 2, Ccnstruction Permit No. :PPR-1SS DKT No. 50-400; Amendment No. 2, Construction Permi- Nc :FFF-159 DKT No. 50-401; Amendment No. 2, Canattucticn Permit No. CPPF-160 DKT No. SC-4C2; Amendment No.
2, Construct;on Permit No. PPR-16,1 DKT. No. 50-403. See also, 3a t ety E . aluat i;r Feport, Shearon Harris Nuclear Power Plant, Un;te . 2, 3 and 4, Cocket Nos. 50-400.401 402 4C3 (November
, . a. a '. )
y
..c.ec o- -e , 'mmisslan also ssued on sTovember z, ---
.93. ,
ame: Jmer~s t, -% rperacing .:cerses 13r ZP&L's E 1.nswick Piant jn.tS ND, . a D C1 - adding PJWei Aye n c y as a : -owner of ea:b
..'.'* . ao 9 ' a ar .S.~$ :' W n e l 1p
. 1rter9st in eaC'r unit.
_;Jg_
In issuing each amendment, the Commission found that Power Agency is ". . . financially qualified to acquire, operate and safely decommission the facility to the extent of an 18.7 percent undivided ownership interest." Amendment No. 42, License No. DPR-71, Docket No. 50-325 (November 2, 1981);
Amendment No. 65, License No. DPR-62, Docket No. 50-324 (November 2, 1981). See also Analysis of Financial Qualifications by the Office of State Programs Supporting Amendment No. 42 to Facility License No. DPR71 and Amendment No. 65 to Facility License No. DPR62, Carolina Power & Light Company, Brunswick Steam Electric Plant, Unit Nos. 1 and 2, Docket Nos. 50325 and 50324 (November 2, 1981).
In addition, the terms of the entire arrangement between CP&L and Power Agency which also provides for the purchase by Power Agency of interests in several coal-fired electric generating units, in operation and under construction, have been approved and the sale authorized by the North Carolina Utilities Commission. See Order Authorising Sale and Granting Certificate of Public Convenience and Necessity, Docket No. E2, SUB 436, Docket No. E44 (November 18, 1981).
Finally, the North Carolina Local Government Commission
("LGC") has approved the issuance by Power Agency of up to
$2,665,000,000 in revenue bonds to finance its purchase of these facilities and to carry its share of expenses relating to the construction, operation and maintenance of the facilities.
-189-E_ _. ..
The LGC is entrusted under the Act with the authority and obligation to approve the issuance of such bonds if it finds, inter alia, "(1) that based upon engineering studies and feasibility reports submitted to it, the principal amount of the proposed bonds will be adequate and not excessive for the proposed purpose of the issue"; and (2) "that the . . . joint agency's debt management procedures and policies are good, or that reasonable assurances have been given that its debt will henceforth be managed in strict compliance with law." N.C.G.S.
5 159B-24. On April 21, 1982, Power Agency, in fact, acquired approximately onethird of its ultimate ownership interests in the facilities, and successfully issued approximately
$400,000,000 in bonds in connection with this purchase.
The existence of these specific administrative findings highlights the total lack of basis of this proposed contention and the absence of any allegations which would put in question the assumptions underlying the Commissiom's final rule on financial qualifications with respect to Applicant Power Agency.
Because, therefore, this proposed contention constitutes an impermissible challenge to the Commission's final rule on financial qualifications and because, in addition, it lacks specificity and basis, the contention should not be admitted.
Proposed Contentions 66 and 94 would raise the issue of the adequacy of Applicants' financial resources to finance the
-190-
"E cleanup and decontamination of the Harris plant in the event of a nuclear accident simliar to that which occurred at Three Mlle Island, 'Jn i t 2. Petition at 171, 203.
.hese propused contentions are prec,uded by tw.e . m
! Commission's final rule on financial qualifications. 47 Fed.
Reg., supra. The final rule amended 10 C.E.R. % 50.54(w) which 7 Imposes as a license condition the requirement that: w3 Each electric utility licensee under this __=
part for a production or utilization -
facillty shall, by June 29, 1982, -
take reasonable steps to obtain onsite -
property damage insurance available at _
reasonable costs and on reasonable terms ,
from private sources or to demonstrate to the satisfaction of the Commission that it -
possesses an equivalent amount of protec-t1:n covering the facility. -W
-mm Id. a* 1J'54.
. ' the 3upplementary :nformation accompanying the final %
=
rule, the e mm i s s i o n stated:
A TM:2 type accident could well require coverage approaching $1 billion The Commission expects that the required insurance will cover leasomable decontamin- _
ation and cleanup costs associated with the -
property damage resulting from an accident at the licensed facility. -
_==
.. L, . iJ,,5 _-
.1 t .
_EE
- 1 App;1 cants are unable ta satisfy the .lcense condition E impm>oa .; y se-t i m w s,
t n, e y will be barred from operating _- M the Hai'. rian~ The prcmu .;ation af section 50.54 has, ] _
%. 8 & D . k l * ' e 46 E
_;3:_ =
_M M
hearing the issue of an applicant's financial capability to decontaminate after a radiological accident. Section 2.104(c)(4), as amended, specifically removes from the juris-diction of the presiding licensing board in a hearing on an application for an operating license the issue of an electric utility applicant's financial qualifications. Id. Lt 13753.
For the reasons stated, therefore, the proposed conten-tions constitute a challenge to the Commission's final rule on financial qualifications and should not be admitted.
N. Antitrust (Contentions 38, 39)
In proposed Contentions 38 and 39, Mr. Eddleman has alleged violations of the antitrust laws of the United States by Applicant CP&L, acting alone or in concert with Applicant Power Agency. Petition at 114, 119.
Such contentions are beyond the jurisdiction of the Board to consider, such jurisdiction having been conferred in the Notice of Opportunity for Hearing in this proceeding published in the Federal Register on January 27, 1982. See, Florida Power & Light Company (St. Lucie Plant, Unit No. 2), ALAB661, 14 N.R.C. 1117, 1123, n.15 (1981); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB316, 3 N.R.C. 167, 171 (1976).
Furthermore, the litigation of antitrust issues in the context of an operating license proceeding may not be raised
-192-1
until the Commission has completed its review of antitrust information required to be submitted in connection with the application and has published its findings as to whether significant changes in the applicant's activities have occurred since completion of the antitrust review during the construc-tion permit proceeding. 10 C.F.R. 5 2.101(e)(2) as amended; 10 C.F.R. Part 2, Appendix A, paragraph X(b)(2), as amended, 47 Fed. Reg. 9983 (March 9, 1982).
In this proceeding, the antitrust review and the "signifi-cant changes" determination have not yet occurred.
Finally, on March 9, 1982, the Commission published its final rule delegating to the Directors of Nuclear Reactor Regulation and Nuclear Material Safety and Safeguards its authority to make tr.e "significant changes" finding which is a condition precedent to a hearing on antitrust issues in an operating license proceeding. Id. This delegation of author-ity is yet another reason why this licensing Board lacks jurisdiction to consider antitrust issues. See, St. Lucie, supra, at 1122, n.12.
In proposed Contention 38, Mr. Eddleman alleges a viola-tion of PURPA. PURPA is the Public Utility Regulatory Policies Act of 1978, 16 USCA S 2601 et seg. There is nothing in PURPA which in Applicants' view can be construed as granting juris-diction to the Nuclear Regulatory Commission with respect to matters arising under the Act. Moreover, such matters are not
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within the jurisdiction of this Board as set forth in the Notice of Opportunity for Hearing in this proceeding.
For the foregoing reasons, therefore, these proposed contentions are not cognizable issues in this hearing and should not be admitted.
At page 20 of the Petition, Mr. Eddleman requests a hearing on antitrust matters under 10 C.F.R. $ 2.104(d). As discussed above, the opportunity to request an antitrust hearing in connection with an application for an operating license does not exist until the publication by the Director of Nuclear Reactor Regulation of "significant changes" findings.
For these reasons, among others, Mr. Eddleman's request must be denied.
O. Miscellaneous (Contentions 5, 6, 31, 33, 40, 52-54(1st), 55, 73, 74, 95, 110, 110X, 122, 129)
Eddleman proposed Contentions 5 and 6 cannot be looked upon as true contentions capable of being litigated in an operating license proceeding. See 10 C.F.R. 9 2.104(c).
Rather, these two proposed contentions amount to no more than legal arguments which are unsupported by and, indeed, run counter to, existing legal precedent regarding the authority and jurisdiction of the NRC and its implementing statute, the Atomic Energy Act of 1954, as amended (42 U.S.C. 5 2011, et seq.).
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l _
Proposed Contention 5 claims that the grant of an operat- ---
I ing license for the Harris Plant would be in contravention of _
the United States Constitution and the U.N. Declaration of E
_==
Human Rights. Petition at 48. Mr. Eddleman's legal --
argument here is essentially parallel to that in the July 29,
=
1978 petition filed by Ms. Jeannine Honicker with the Commission requesting the shutdown of nuclear power plants and other fual cycle facilities. In denying this petition, the Commission explicitly examined these arguments and found them to be unsupportable in law. See Denial of Petition, 46 Fed. -7 mm Reg. 39573, 39579-39581 (1981) and cases cited therein.
Similarly, proposed Contention 6 asserts that licensing of __
the Harris Flant is prohibited by Section 19 of the North Carolina Constitution, which provides protection of life, e
liberty and property Mr. Eddleman further claims that neither
]
the Commission's regulations nor any federal law may overrule .[5m the provision of Section 19. Petition at 48-49. Contrary to l_-
Mr. Eddleman's assertions, federal pre-emption of the States' wW 4--
powers to regulate the nuclear industry has been explicitly ---
E established by both statute and court decisions. _See 42 U.S.C. _
7mt Sc Applicants do not understand petitioner's reference to 1==
"(Henickel Hendrie?) J.S. Court of Appeals, D.C. Circuit, -4E
.992." Ms. Hon 1cKer did seek to en;oln the Commission to order _ =
the re'cocatlan of al. nuclear fuel cycle licenses; this action was acwe'er diamissed in 19 a and the court's findings tnere --
procide 'o >;ppert for Mr
. Eddleman's arguments. See Moni:ker Hendrie, 405 F Supp. 414 ;M.D. Tern 19~9)
.s q T-E
==
-m 1 -
1 5 2021; Nor*hern States Power Comoanj v. Minnesota, 447 F.2d __
. 43 (ath C1: 19'1) a f_f_ _' d _. mem. 4C5 'J .S. 1035 (1972)
Eased on the foregoing then, it is clear that proposed Mr. ten sns 5 and 6 attempt to raise unsupportable legal m
n arguments which are not cognizable in this individual licensing -
proceeding and therefore must mot be admitted.
Eddleman proposed Contention 31 contends that Applicants must pro /e "nat the NRC Staff is capable of carrying out its _
tespcns;ci ities umder the Commission's regulations, the Atomic ====
Enerty Act and NEPA. Petition at 96, 9~ In support of his 't
~;ntentian that the Staff 1s unable to properly perform these --
autles, Mr Ea,d;emar ~ .tes pressure uron e the Statt- to issue -
m a pe t a * : ..g . ;;enses, impacts of budget restrictions, alleged __
- >. . _.x ce weer *e S t a :. : and Licensee in the Three Mlle -
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- xk - .r ually identical" positions during the 1979 remand -
ieat ngs and a :ost of other su c.ositions. e However, nowhere in m -
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.3 t scussion does Mr E-idleman attempt to establish a nexus -
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f this proceeding. See 1C 2F R. i .24( : ) Theref re, App 11: ants submit that, acsent a _
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Mr. Eddleman, in Contention 33, requests funding for NRC E various aspects of his participation in this proceeding.
funding of intervenor participction is proscribed by Section
^
502 of Pub. L. No. 97-88, 95. Stat. 1135 (1981). See Wisconsin m
Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 N.R.C. (February 12, 1982). Contention 33, more appropriately considered a motion, must be denied.
At Contention 40 Mr. Eddleman contends that the Board must raise sua sponte any significant issues not addressed by petitioners or the NRC Staff. Petition at 121. Contention 40 .
does not present a contention. The Commission's regulations provide: 7 -
Matters not put in controversy by parties will be examined and decided by the presiding officer only where he or she ,
determines that a serious safety, envi-ronmental, or common defense and security matter exists. 10 C.F.R. $ 2.760a. ;
The Board's compliance with the Commission's rules is not an .
appropriate matter for litigation in an operating license proceeding.
In Contention 52, Mr. Eddleman argues " Applicants' safety i 3
analysis is deficient in that it does not consider the total _
consequences of terrorists commanding a very large airplane
-i
. . . and driving it into the containment." He also postulates -
that expansion of the Raleigh-Durham airport to accommodate larger planes enhances the possibility of such planes crashing F
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into the plant as a result of accidental causes such as heavy ,_
fog or cloud cover.
==
The portion of this contention pertaining to terrorist --
attacks constitutes a clear challenge to an NRC regulation, _-
which states that an applicant: (( =
is not required to provide for design j features or other measures for the specific purpose of protecting against the effects -
of (a) attacks and destructive acts, including sabotage, directed against the --
facility by an enemy of the United States, _
whether a foreign government or other person . . . . _--
10 C.F.R. S 50.13. This regulation and the Commission's policy --
of not considering military attacks have been upheld by the courts. Siegel v. Atomic Energy Commission, 400 F.2d 778 (D.C.
Cir. 1968). --
With regard to airplane crash probabilities, Mr. Eddleman has not provided a basis for assuming that expansion of the 3N!
m Raleigh-Durham airport increases the probability of airplane -
crashes at the Harris Plant site. NRC Regulatory Guide 1.70, Rev. 3, at section 3.5.1.6, sets forth the conditions under ===
which an aircraft hazard analysis should be required. The location and traffic volume of airports are important criteria. j An aircraft hazard analysis is called for in the case of 75
" Federal airways or airport approaches passing within 2 miles S
--=
E of the nuclear facility" and "[alll airports located within 5 ==
miles of the site." There are no such airways, approaches or 55 m -
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-2 A
- ==
- airports in this case. See FSAR 3.5.1.6. The Guide also calls for a:. analysis for "Iajirports with projected operations o
greater than 500d' movements per year located with 10 miles o
of the site and greater than ICOOd" outside 10 miles, where d is the distance in miles from the site." The Shelba Airport (at Holly Springs, 6 miles away), the Luther Airport (at Apex, 8 miles away), and the Raleigh-Durham Airport (20 miles away) do not have sufficient operations to warrant an analysis under t h e :s e :riteria. S_e e FSAR 5 3.5.1.6. Mr Eddleman has advanced no new facts in this contention, and has not explained why the S t a f f ' .-s :riteria might be inadequate, or what might justify de,lating from the criteria in this case. Consequently, the cortention lacks basis and specificity and should not be admitted.
Nearby aircraft activity, including future expansion plans, and the nazard probability, are discussed in FSAR sections 2.2.2.5 and 3.5.1.6. Mr Eddleman has provided no basis f o: asserting Applicants' analysis is insufficient.
Mr Eddleman's C o n3 e n t l o:7 _5 3 alleges the " Harris plant is inimical to the common defense and security under the U.S.
Constitut;on in that it provides a tempting target for:
- et. t ;t. s abo t eu r s , and 'csti.e 'ations.
. . Simliarly, Centont'.- ~4 ( . ;t) : m te: as t ". a t 'osti.e nations and terror-1 .i " ', m a 'f Se _sor' .l s t i c a t ed We ap 3 n t /
- 0 set aff a thermonuclear eXp.' . .Em W :. ' .' ^}e C13r*
_ '. a O .
t . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
E Applicants believe that these contentions are a challenge to Commission regulations and should be rejected. First, the attacks which Eddleman postulates would seem to fall within the scope of 10 C.F.R. 5 50.13 (see discussion of Contention 52 above) and are thus the type of " attacks and destructive acts" against which the facility need not be designed.
Mr. Eddleman's Contention 55 postulates that a " deranged c
fighter plane pilot might fire on the Harris plant with air-to-ground missiles," or that pilot or computer error may "cause a missile to take off at the nuclear plant. . . ." Mr. Eddleman y contends that Applicants' FSAR is inadequate in failing to take these risks into account.
This proposed contention constitutes a direct challenge to 10 C.F.R. % 50.13(a), quoted above in Applicants' Response to Eddleman, Contention 52. It also improperly challenges subpart T- (b) of section 50.13, which provides that a plant need not be designed to withstand the effects of "use or deployment of weapons incident to U.S. defense activities."
Further, Contention 55 fails to provide any basis for Eddleman's assertion that a deranged fighter pilot might fire on the plant in that there is no explanation as to why such an m -
event might occur. Mr. Eddleman, himself, states, "This event a-
_;m may be improbable, but surely not below the probability that Applicants claim attends severe core-melt accidents. . ."
=-
-gh -200-
For these reasons, proposed Contention 55 should not be admitted.
Eddleman proposed Contention 73 asserts that there has been no showing that the Harris plant will fully comply with NUFEG-0660 ("NRC Action Plan Developed as a Resul* of the TMI-2 Accident"), NUREG-0737 (" Clarification of TMI Action Plan Requirements") and other, unspecified, updates of the TMI Action Plan. Mr. Eddleman would require an independent ir/estigatior, be performed in order to certify Applicants' _
comp 11ance with the Action Plan. Petition at 180.
At the present time, only a portion of the recommended actions contained in NUREG-0660 have been approved for imple-mentation by the Commission; the Action Plan items which have cee. approzed by the 2cmmission are set forth in NUREG-073~
3ee Abstract to NUREG-O~3~ Those items which are applicable to applicants for an operating license are tabulated in Enclosure 2 of NUREG-C'3" Therefore, Applicants submit that
-here is no support f or Mr Eddleman's claim that the Harris plant must comply witl al. of the recommendations contained in n-NUREG-0660.- Further we would note that the approved Action Plan recommendations are not regulatory requirements for 5' : 1 addl lan : th se Act1;n Piar 1: ems not approved by the Ccmmissier certair items apply on1 3 to a specific type (i.e.,
BWR) or ender : ass of ceactor w n l :1, wcuid not include the Ha . a giant.
operating license applicants, as Mr. Eddleman implies. Rather, the Commission is currently conductimg a rulemaking to consider the feasibility of implementing these recommendations as O
regulations. See 46 Fed. Reg. 26491 (1981).
Beyond Mr. Eddleman's misconstrual of the status of the Action Plan recommendations, Applicants submit that proposed Contention 73 presents only a very generalized statement that Mr. Eddleman does not believe Applicants will comply with the provisions of the Action Plan. If Mr. Eddleman contends that Applicants do not meet certain provisions of the Action Plan, these allegatic..s must be set out with specificity and basis.59 Failing a particularized articulation of Mr.
Eddleman's complaints, Contention 73 should be rejected.
58 Applicants are, however, committed to respond to the NUREG-0737 recommendations. At the present time, the FSAR addresses the Harris Plant compliance with the short-term Lessons Learned recommemdations, as required by the Staff's letter of November 9, 1979. Amendment [3] to the FSAR, to be submitted in July, 1982, will address Applicants' plans for complying with the bulk of the NUREG-0737 items.
59 The examples given by Mr. Eddleman in proposed Contention 73 are not persuasive. Page 2 of the TMI Appendix, cited by Mr. Eddleman, merely sets forth one of the Staff's short-term Lessons Learned recommendations and is not supportive of the prcposition set forth by Petitioner. Page 17 of the TMI Appendix is a portion of Applicants' response to one of the Staff's clarifications to the recommendation that a subcooling meter be installed. While Mr. Eddleman expresses concern that additional clarification will be provided at a later time, he does not take issue with the overall adequacy of Applicants' subcooling meter design.
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With regard to Mr. Eddleman's proposal that Applicants' _
compl ance with the Action Plan be certified by an incependent ,
investigation, Applicants note that the response to the -
m MUBEG-G'37 recommendations will be available for review by the ____
intervenors, the 30ard and the Advisory Committee on Reactor --
.3afeguards. Applicants contend that Mr. Eddleman has made no -
showing that a further investigation by an independent organi-zation is required.
m J
Proposed Eddleman Contention 74 alleges that the NRC Staff n is unable to protect the public health and safety in that the 5taff nas not changed its " basic attitudes toward safety" as m recommended by the President's Commission and Special Inquiry m
c...,,, p
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. v.
le: tion .' 104(c) of the Commission's regulations, 10 ]!
m a
C.F R. s 2.104(c), sets forth the pa ameters of an operating "E a
.1:ense hearing within which individual contentions must be y tramed. Applicants fall to see how the issue of whether the Staff has implemented the recommendations of various investiga- __
-m tars cf the TM:-2 accident relate to cl.e specific issues to be '
s i de red in ar cperating .1 cense hearing. Further, the imm President's Commission and the Special I nqui ry Group issued a _
mu1~:tude af recommendations, jet Mr Edd]eman does mot specify _
the cart ~ a .at recammendati;ns wh19 are of ccmcern to him. E 7he OdsS : i "efer9nceS EO "he Staff's attitude and i n t e r'/ e nC r =
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6 & h- b- 4 & 6 har 6 7
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M
issue to be litigated. Applicants therefore object to the admission of this contention as attempting to raise an issue which is outside the scope of this proceeding and as lacking the requisite specificity and basis.
Proposed Contention 95 claims that the yet-to-be-published ES fails to adequately consider the cost of property insurance for the Harris plant.60 Petition at 203. Obviously, at this point, any discussion of inadequacies in the ES are merely speculative. However, Applicants' ER (which is reviewed by the Staff during its environmental review) does include the cost of both property and nuclear liability insurance, levelized over the lifetime of the project. See ER, Table 8.2.1-2, at 8.2.1-4. Eddleman proposed Contention 95 does not take issue with the insurance costs projected by Applicants; indeed, this information is not even referenced in the Contention. Lacking any dispute by Mr. Eddleman to Applicants projected costs, proposed Contention 95 must be dismissed as failing to meet the specificity amd basis requirements of 10 C.F.R. S 2.714(b).
Mr. Eddleman is, of course, free to submit new specific contentions following the publication of the Staff's ES if he 60 Mr. Eddleman further contends that this inadequate consid-eration of insurance costs will adversely impact the cost-benefit balance struck at the CP stage. Applicants have extensively discussed the standards required to litigate this type of issue (see S II.B, supra); for the reasons stated therein, this question should not be litigated in this pro-ceeding.
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1 finds fault with the Staff's consideration of this issue. See
~
$ II.A, supra.
Applicants perceive Eddleman proposed Contentions 110 and 110 "X" as more in the nature of legal argument than as posing a cognizable contention in this proceeding. Proposed Contention 110 consists of a long list of plant design related issues which Mr. Eddleman contends have not been adequately addressed in the ESAR or the yet unpublished SER and, therefore, prevent-ing Petitioner from submitting specific contentions on these issues at this time. Petition at 218-220. Similarly, proposed Contention 110 "X" asserts that the non-existent ES is defi-cient in failing to provide information regarding certain events which Mr. Eddleman contends is necessary to formulate contentions.61 Petition at 220-221. As noted in our introductory discussion regarding bases and specificity (Section II.A, supra), Mr. Eddleman will have the opportunity to pose new contentions following issuance of amendments to the ESAR or the ER and following publication of the ES and the SER.
As presently worded, however, proposed Contentions 110 and 110 "X" do not put the parties on notice of the issues to be litigated, i.e., a listing of areas of interest, without a 61 For example, Mr. Eddleman would require the ES to address the issues designated in his proposed Contention 108. That proposed Contention, however, deals with performance testing for Class 9 accidents -- an issue not dealt with in the Staff's ES. See Applicants' Response to Contention 108, section II.I.3, supra.
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specific description of alleged inadequacies or an explanation y of why the present information is inadequate, does not meet the :
requirememts of 10 C.F.R. 5 2.714(b). Applicants therefore object to the admission of proposed Contentions 110 and 110 .
It tf Eddleman proposed Contention 122 asserts that Applicants a lack sufficient financial qualifications to withstand the costs _
of various contingencies, such as extended shutdowns. Petition ^
at 229. As we have discussed in connection with Mr. Eddleman's proposed contentions on Decommissioning and Municipal Power -
Agency (see Sections II.F and II.M, supra), consideration of the financial qualifications.of an applicant for an operating -
licemse have been expressly precluded by the Commission's recent anendments to Part 2 and Part 50 of its regulations. ,
See 47 Fed. Reg. 13750 (March 31, 1982).
Eddleman proposed Contention 122 must therefore be rejected as an impermissible challenge to the Commission's regulations.
Proposed Eddleman Contention 129 claims that the capital _
intensive investment required for construction of the Harris Plant has resulted, and will continue to result in a net loss R
of jobs in the area served by Applicants and, further, that this net job loss is an impact which must be considered under NEPA. Petition at 236. The sole support for proposed Contention 129 is the following statement: "The net losses of _
jobs associated wfprojects like SHNPP are established in a
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number of studies." Mr. Eddleman does not, however, provide an identification of these studies nor does he provide other factual support (i.e., area employment figures or the like) for his proposition. Absent such bases for the speculative statements contained in proposed Contention 129, Applicants submit that this contention must be rejected.
III. CONCLUSION In their March 12, 1982 response to Mr. Eddleman's petition for leave to intervene, Applicants recognized that Mr.
Eddleman had sufficiently stated an interest in the proceeding to meet the initial requirements for intervention under 10 C.E.R. 5 2.714. In this response, Applicants have found that Mr. Eddleman has advanced several admissible contentions (portions of Contention 37, and Contention 61A). Therefore,
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, Applicants do not object to the granting of Mr. Eddleman's petition for intervention.
Respectfully submitted, George F. Trowbridge, P.C.
Thomas A. Baxter, P.C.
John H. O'Neill, Jr.
SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Richard E. Jones Samantha Francis Flynn CAROLINA POWER & LIGHT COMPAtri P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants Dated: June 15, 1982
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