ML20054M195

Memorandum & Order Overruling Applicant & Intervenor Objections Following Prehearing Conference,Denying Requests for Referral to Aslab & Addressing Related Questions

ML20054M195
Person / Time
Site:	Catawba
Issue date:	07/08/1982
From:	Kelley J Atomic Safety and Licensing Board Panel
To:	CAROLINA ENVIRONMENTAL STUDY GROUP, DUKE POWER CO., PALMETTO ALLIANCE
References
NUDOCS 8207120084
Download: ML20054M195 (19)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 7

ATOMIC SAFETY AND LICENSING BOARD BEFORE ADMINISTRATIVE JUDGES James L. Kelley, Chairman Dr. A. Dixon Callihan Dr. Richard F. Foster SERVED R O M

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In the Matter of ) Docket Nos. 50-413

. ) 50-414 DUKE POWER COMPANY, ET AL.

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(Catada Nuclear Station, )

Units 1 and 2) ) July 8, 1982 I

MEMORANDUM AND ORDER (Overruling Objections Following Prehearing Conference, Denying Requests for Referral to the Appeal Board, and Addressing Certain Related Questions)

Introduction Pursuant to 10 CFR 2.751a, the Applicants, the NRC Staff and Intervenors Palmetto Alliance (Palmetto) and Carolina Environmental Study Group (CESG) filed objections to various rulings in our Memorandum and Order of March 5,1982, or, in the alternative, sought referral of some of those rulings to the Appeal Board. In our Memorandum and Order of June 30, 1982 we rejected the Applicants' and the Staff's objections to our rulings on specificity of contentions and referred those rulings to the Appeal Bo ard. We deal now'with the Applicants' other objections, the objections ,

of the Intervenors, and with certain related questions,

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6 A. Applicants' Remaining Objections.

1. Financial Qualifications. The Applicants, supported by the Staff, ask us to dismiss Palmetto Contentions 24 and 25, relating to the financial qualifications of small owners and to costs of decommissioning.

! They point out that these contentions are barred by new rules the Commission adopted shortly after our March 5 Order. See 47 Fed. Reg. 13750. 'We agree that these contentions are barred by the new rules; they are dismissed.

2. Service of Documents. The Applicants object to that portion of our Order that requires service on all parties of copies of relevant documents generated by the Applicants or the Staff. Order at 39. We adhere to our Order and reject the Applicants' objections for the reasons stated by the Staff at pp. 17-19 of their Response dated April 20, 1982.

We see no reason to refer this part of our Order to the Appeal Board,

3. Corbicula. Palmetto 43 (CESG 17) concerns possible effects of Corbicula on the performance of the cooling tower system. Our Order of March 5, 1982 admitted this contention provided it was clarified and made much more specific following discovery. Applicants object, believing that the Board has placed a burden on them to provide the necessary specificity.

Applicants have misinterpreted the Board's ruling. The burden for clarification and specificity of this contention remains with Intervenors.

It was evident to the Board from the pleadings, the CP-FES and the FSAR that:

(a) Corbiculaispresentandmayinfestthecoolingtower system; (b) fouling of the Nuclear Service Water System by Corbicula is of sufficient concern to require control measures; (c) precisely where and to what extent fouling will occur is spec ul ative. If the consequences of such fouling are safety related this issue should clearly be litigated. -

Ou'r March 5, 1982 Order did not say that the lack of specificity in the contention was grounds for rejection under 10 CFR 2.714. Rather we have attempted to focus discovery so that it would be clear as to whether the kind and magnitude of the consequences of a clam infestation would justify litigation. We reaffirm our conditioned admission of this contention. Intervenors have the burden of clarification and greater specificity. ,

8. Intervenors' Objections.l./

1. The Burden of Further Specifications. The Intervenors object to the conditional acceptance of most of their contentions and to the " burden of further specification" later when relevant information becomes available, or, in some cases, when discovery is complete. We reject this objection . Given the availability of information, the Commission's 1/ The Intervenors Palmetto and CESG filed a single joint response and objections to the March 5 Order. Charlotte-Mecklenburg Environmental Coalition did not file objections.

requirement of specificity in contentions is certainly reasonable.

Assuming as we do the seriousness of the Intervenors' intentions, they will have to read and analyze relevant material as it become available. In that context, it is not unfairly burdensome to require them to add niore specificity to their presently vague contentions. Indeed, the burdens involved in that task will be minor compared to those involved in the eventual litigation of this case.

2. Serious Accidents (Palmetto 5, 9, 31; CESG 2). Although these contentions were rejected by the Board for lack of specificity, the door was left ajar for possible consideration of a site-specific credible accident at Catawba. Intervenors now return with descriptions of accidents which presumably could occur at any pressurized water reactor. The Applicants and the Staff are now asked to comment on whether any of these scenarios may form the basis for an acceptable contention. Comments shall be filed by July 30, 1982.

3. Operator Qualifications. We admitted conditionally Palmetto's Contention 8 on operator qualifications, subject to the responses we called for concerning whether this contention might b'e the equivalent of an impermissible attack on a Commission rule. Palmetto and the Staff urge the admission of this contention. The Applicants see it as an attack on the rules. This is a rather close question because the Commission did not make its intentions clear in its most recent rulemaking on the subject.

( However, we find the Staff's arguments persuasive and endorse the following summary of those arguments:

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[W]hile litigation of Palmetto Contention 8 might ordinarily be barred as a challenge to the operator licensing requirements in 10 CFR Part 55, the Commission has, through its Revised Statement of Policy on TMI Action Plan requirements, authorized the litigation of such a contantion and that authorization is not affected by the fact that TMI action plan requirements are now the subject of rulemaking. Palmetto Contention 8 may properly be admitted and litigated in this proceeding. Staff Response at 7.

Palmetto Contention 8 is now admitted unconditionally.

4. Cost vs. Benefits. The Intervenors object to our disallowance of Palmett,o's Contentions 11, 12, 13, 30, 33, 34 and 39 and CESG's Contentions 1, 5, 6'and 12 concerning need for power, certain broad economic issues and financial factors said to affect the NEPA cost / benefit balance struck at the construction permit stage. We have considered their objections and adhere to our prior rulings. Most of the Intervenors' objections are, in substance, objections to the Comission's recently adopted rule barring litigation of need for power and alternative power sources in operating license cases.

In the alternative, the Intervenors ask us to " certify" (refer) to the Commission or Appeal Board the cost / benefit contentions we do not admit.

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Referral is an exception to the normal rule against interlocutory review of

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Licensing Board orders. The burden is on the movant to demonstate that an issue meets established standards for referral (discussed briefly at 14 of our Order of June 30,1982). Here, the Intervenors simply ask for referral without any attempt to meet that burden. We see no obvious reasons for I referral. The Staff opposes referral and makes a persuasive showing that referral standards are not met. Staff Response of April 28, 1982 at 9-10.

The Intervenors' request for referral of the admissibility of these

cost / benefit contentions is denied. Following this denial, the Intervenors may seek directed referral from the Appeal Board. See Public Service Co.

of New Hampshire (Seabrook Station),1 NRC 478, 482 (1975).

5. Spent Fuel Transportation and Storage (Palmetto 14-17, 38; CESG 11). Palmetto has five contentions and CESG one contention about these subjects. Their concerns involve not cnly the spent fuel storage facilities at Catawba but also the potential transport of spent fuel from otber Duke Power Company nuclear power stations to Catawoa. In our Order of March 5 this Board asked the Applicants and the Staff to address questions about Duke's plans to use, Catawba f acilities to store fuel from other stations and to comment on our jurisdiction over applications to store or transport spent fuel from other facilities. Although, as the parties' submissions show, this Board lacks jurisdiction over shipment of spent fuel from other Duke facilities, we must consider the environmental impacts associated with its transport to, and storage at Catawba.

Palmetto Contention 14 asks for "... a full description and detailed l analysis of the environmental effects of the transport of spent fuel shipments to the Catawba Plant from other Duke Power Company facilities and of the contribution of such effects to the environmental costs of licensing Catawba...", asserting that Summary Table S-4 does not apply because the destination of the spent fuel in transit would be the Catawba facility rather than a fuel reprocessing plant. The Board, in its Order of March 5, 1

1982, disallowed this contention because no reason has been advanced as to why Ta)le S-4 values would not adequately describe the environmental effects, i

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Intervenors object (Response and Objections to Order Following Prehearing Conference, March 31,1982) to this rejection, citing the wording associated with 51.20(g)(1) and Table S-4 which relates to the method of shipping. Intervenors do not assert that the method of transport will be different than that covered in 51.21(g)(2)(v) (truck, rail, or barge). No new information has been presented that invalidates the kind or magnitude of effects presented in Summary Table S-4. Therefore, we reaffirm our rejection of this contention.

Palmetto Contention 15 asserts that "... the favorable cost-benefit balance struck at the construction permit phase ..." is compromised by expanding the Catawba fuel storage facilities to accommodate fuel from other Duke stations, and by the transport of such fuel. We admitted this contention provided the words "Away From Reactor" were stricken. We need also to confine this issue to the action now before us, which is a license to operate the constructed plant. Palmetto Alliance may resubmit this contention based on the OL Environmental Statement, when issued, and subject to the conditions of our Order of March 5,1982 at 12.

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[ Palmetto Contention 16 asserts that Applicants have not demonstrated their ability to transport and store irradiated fuel assemblies from other Duke facilities so as to provide reasonable assurance that the health and l

l safety of the public is not endangered. In our Order of March 5 we admitted this contention conditionally, subject to revision in light of information we received in response to our questions. We now exclude the portion of this contention which relates to the transport of irradiated fuel because the safety aspects of this activity are controlled by 10 CFR l

Parts 71 and 73, and by 00T regulations and is outside the scope of this hearing. The portion of this contention which relates to the storage of irradiated fuel assemblies from other Duke facilities at Catawba is admitted.

l Palmetto Contention 17 is concerned with provisions for safe storage l

l of irradiated fuel at Catawba after expiration of the license for the facility.

Our March 5 Order rejected this contention because it lies beyond the scope of this proceeding and it is also the subject of current Commissison rulemaking. Intervenors object to this rejection citing the Court of Appeals in Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.1979). As pointed out in our Order of March 5, the Commission has initiated rulemaking on this generic issue and the Appeal Board has subsequently held that this topic is not litigable in individual proceedings pending the outcome of the completion of the " waste confidence" rulemaking. Public' Service Electric and Gas Co. (Salem Nuclear Generating Station), 14 NRC 43, l 68-69 (1981). Our rejection of this contention is reaffirmed and Intervenors request for certification is denied.

I Palmetto Contention 38 (CESG 11) concern's enlargement of the spent fuel pool without an amendment to the construction permit and the associated increase in the source term. Our Order of March 5 rejected these contentions because they were in the nature of legal argument or concerned issues we conditionally admitted elsewhere (Palmetto Contention 16). Intervenors object to this rejection, but provide no specific l

argument as to why the Board should reconsider its decision. Rejection of l these contentions is reaffirmed.

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6. ECCS (Palmetto Alliance 19, 45; CSEG 19). This contention concerns a postulated malfunctioning of the Catawba ECCS caused by

" dropping of the neutron shield from its support" and a resulting " blockage of the coolant system flow path." We previously rejected this contention for lack of specificity. Tha Intervenors object to that ruling and now point more specifically to portions of the Catawba and McGuire records

.where a " neutron shield" (also called a " lower core barrel") is referred -

to. Sowever, these references do nothing to clarify the manner in which the postulated accident might occur. We therefore adhere to our earlier rul ing.

7. ALARA. Palmetto Contention 20 postulates that occupational exposures will not be as-low-as-reasonably achievable because certain equipment minht require extensive repairs and because the FSAR does not adequately consider exposure that might occur. Our Order of March 5,,1982 rejected this contention because it failed to provide any reasonably specific basis for the assertion that 10 CFR 20.1 requirements will not be met. Intervenors object to this rejection but still provide no specific reason why the applicable rules will not be. met. We reaffirm our rejection of this contention.

8. Control Room Design (Palmetto 22, 42; CESG 16). These contentions concern control room design and an interf ace with human factors, particularly water-level indicators. They were denied in part and admitted conditionally in part in our March 5 Order. Intervenors object to our partial denial of Palmetto 22 and reference certain vaguely identified

documents. Finding no new reason to modify our earlier ruling, we decline to do so.

9. ATWS (Palmetto 28). This matter was previously rejected by the Board on the basis of a recent and controlling Commission statement.

Completely ignoring the Commission statement and alluding to matters of which the Commission is already aware, the Intervenors object. The Board's

'earli,er position on this generic issue is reaffirmed.

10. Systems Interaction (Palmetto 29). This contention voices concern that unrecognized interactions of systems could result in plant conditions that compromise the safety and health of the general public.

Our Order of March 5,1982 rejected this contention because of its vagueness. Intervenors object to this rejection pleading their lack of technical qualifications to be specific in respect to Catawba. The Board agrees that the general subject is of safety significance, but in the' absence of a specific basis f5r litigation the contention must be disallowed.

11. Risk Evaluation (Palmetto 32 CESG 3) . These contentions concern risk analyses and introduce, at p. 22, a co'ncept of " totality of risk" in terms of fatalities arising from apparently simultaneous accidents at the Catawba and McGuire power stations. The contentions were rejected as not being site-specific to Catawba. The Board considers bringing McGuire into the statement as not affecting the argument. No elaboration has now appeared on the alleged fault in the analysis by the Staff of potential risks to the public, the principal thrust of these contentions. The Board retains its earlier position.

12. Emergency Planning (Palmetto 35, 37; CESG 8,10). The Intervenors lodge a rather cryptic objection to our rulings on Palmetto Contention 35 (CESG 8). We take.it they are referring to our ruling on the second sentence of the contention, which appeared to call for a 30-mile radius for the plume exposure pathway emergency planning zone. We continue to view this as an impermissible attack on the rule establishing a zone

' radius of "about 10 miles." We are now asked to " certify" this contention for determination by the Commission or Appeal Board.

We are not sure whether this request to " certify" means to send up our ruling for interlocutory appellate review pursuant to 10 CFR 2.751a(d) or to certify the matter to the Commission for determination whether a waiver should be granted, pursuant to 10 CFR 2.758(d). We are doing neither, because neither of the quite different kinds of showings required of the movant have been made by the Intervenors here. See p. 14 of the Order of June 30, 1982; 10 CFR 2.758(b).

As to the crisis relocation contention (Palmetto 37, CESG 10), we adhere to our prior ruling. The request for " certification" (referral) is also denied for lack of an appropriate showing.

13. EMP (Palmetto 41; CESG 15). This contention asserts that the design and construction of Catawba does not give appropriate consideration to an electromagnetic pulse (EMP) which might knock out power grids, communications systems, control systems, and other electronic equipment.

l Our Order of March 5,1982 disallowed this contention as an impermissible challenge to Commission regulation 10 CFR 50.13. Intervenors object, asserting that an EMP could be caused by the detonation of nuclear weapons l

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short of war, and request certification of the issue to the Appeal Board or Commission. The wording of 10 CFR 50.13 includes ". .. (b) use or deployment of weapons incident to U.S. defense activities..." and we remain unconvinced that the contention is outside of this rule. Although we are disallowing this contention as an impermissible challenge to the Commission's rules, the potential disruption of operations at nuclear power statiops and all other types of facilities that depend upon sophisticated

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electronic systems must be viewed as potentially serious. Because of the pervasive nature of the problem, policies and possible mitigative actions need to be developed on a generic basis rather than piecemeal through litigation in individual licensing actions.

i The Commission is aware of the EMP problem and has research under way to better define the nature and magnitude of this issue (SECY-81-641).

This research is a prerequisite to the formulation of a Commission policy or rule, should this be necessary.

14. Embrittlement (Palmetto 44; CESG 18). We previously rejected this contention for lack of specificity. Intervenors have included clarifications of this contention in their objection to our ruling such that it now meets specificity standards. It is therefore admitted as clarified. The clarified contention was filed in March 1982, some four months late under 10 CFR 2.714(a)(3). However, we do not believe that any party can claim prejudice from the Board's now considering the clarified contention on its merits, in view of subsequent slippages of more than four months in construction and hearing document schedules. We caution the Intervenors, however, that any contentions filed hereafter and not based on

new information must be accompanied by a showing with reference to the five factors in 10 CFR 2.714'a)(1).

15. Releases to Lake Wylie (Palmetto 46; CESG 20). This contention is concerned with the accidental release of " radioactivity" to Lake Wylie.

Our Order of March 5, 1982 disallowed the contention because of vagueness and thus not meeting the requirements of 10 CFR 2.714(b). Intervenors object, to this rejection asserting that "... it is appropriate to inquire i to potential Catawba equipment design to deal with a [0conee-like]

non-planned release." Since Sections 3.5, 5.2, 11.2 and 15.7 of the FSAR discuss the equipment design of the radwaste system at issue, it is incumbent upon intervenors to base their contention upon specific aspects of the system which they think will not work. Intervenors have failed to be specific and the contention cannot be admitted.

16. Liability of New Owners. We adhere to our earlier ruling on CESG Contention 22 (Palmetto 48). In addition, this contention must now be disallowed on the independent ground of the recently-adopted rule barring financial qualifications from operating license proceedings.

17. Documents. The Intervenors ask us to require the Applicants to serve on them complete copies of the Application, Environmental Report, 1

l Final Safety Analysis Report and Technical Specificaticns. We are denying this request because of the expense involved in supplying these voluminous documents to each Intervenor. These documents are available to Intervenors l

at the Public Document Room in Rock Hill. We understand they are also l

! available in Charlotte at the Applicants' offices. We are exploring the i

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possibility of opening another public document room in Columbia. Such a room would alleviate the practical problem for Palmetto.

C. Access to +%e Catawba Security Plan.

Although we conditionally admitted Palmetto's Contention 23 concerning the Catawba security plan in our Order of March 5, we stated that "we dould condition a disclosure order on Palmetto's having obtained the services of a qualified security plan expert." We also indicated that access to the plan would only be granted subject to some form of protective order restricting disclosure of safeguards information. In response to questions subsequently posed to them in our Order of April 13, Palmetto has informed us, among other things, that they do not have and do not intend to obtain a security plan expert in the generally accepted sense of that *tenn.

! Furthermore, Palmetto has expressed an unwillingness to submit to any form of protective order that will restrict their freedom to disclose safeguards information in any manner they see fit. Palmetto's Response to Board Questions at 3-5.

The Staff and the Applicants have filed pleadings in opposition to l Palmetto's submission, arguing that both expert assistance and a protective 1

order are prerequisites to access to a security plan. We agree with the Staff and the Applicants on those points, substantially for the reasons t

they advance. We also believe that these developments call for the '

l dismissal of Contention 23 because, in our view, access to the Catawba l

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security plan is necessary in order to develop specific contentions in this case. A few additional comments on this subject are appropriate.

Palmetto proffers two former Duke Power Co. security employees at the McGuire f acility as expert witnesses. There is no showing that these i people are qualified as security experts except as would be derived from

! their prior employment. The burden is on the sponsor to demonstrate his

' witnesses' credentials. Pacific Gas and Electric Co. (Diablo Canyon Plant)

ALAB-410, 5 NRC 1398, 1405 (1977). An expert in nuclear power plant security should possess extensive training or experience in that or closely related fields. Such a person sho.uld be able to assess overall plant security with an appreciation for its interrelated aspects. There is no basis for assuming that a former security employee ipso facto has the necessary background. We cannot accept Palmetto's unsupported assertion that "more formal expertise" in this area is only available to the owners o,f nuclear power plants. As the Applicants point out, there are indications that intervenors in other cases have been able to secure the l

services of security experts. See Applicants' Response at 23, n.17. At the very least, we would have required proof of diligent efforts to secure expert services.

As we read Palmetto's response, they decline to be bound by any restrictions on subsequent disclosure of safeguards information. The Commission's rules (10 CFR 2.744(e)) clearly authorize and may well require l

l imposition of such restrictions. In any case, this Board would consider them necessary here. We note Palmetto's alternative suggestion that they be given a " sanitized" version of the Catawba security plan without any l

i restrictions on disclosure. The concept of a sanitized plan involves withholding from an intervenor sensitive parts of a plan that he does not need to litigate his contentions. But as the Staff correctly points out, the resulting sanitized plan, minus those parts, is still subject to restrictions on disclosure. Given Palmetto's stated aversion to such restrictions, the sanitized plan approach can serve no purpose here.

10 sum, an Intervenor must have a qualified expert and must submit to

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a protective order if he wishes to pursue a security plan contention.

Palmetto has failed to meet these preconditions. Accordingly, Palmetto Contention 23 is dismissed because it is impermissibly vague and because Palmetto has not met reasonable conditions that would enable it to develop specific contentions.

Palmetto makes the alternative request that this Board " pursue this security issue pursuant to its general sua sponte authority." Palmetto Response at 5-6. In that connection, they also ask the Board for an order enjoining the Applicants from acts of " harassment, intimidation or reprisal" against the former security employees as a result of their cooperation in this matter.

• The Board reserves for the present the question whether it will take f any further action on the seemingly serious allegations at page 5 of I

Palmetto's response. As to the request for an injunction, we need not now explore the scope of our authority (if any) in that regard. The Applicants i have categorically denied those allegations. Injunctive and similar relief

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does not issue without a predicate of convincing proof. We presently have i

no proof of Palmetto's allegations.

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D. Revision of Condition on CMEC Contention.

By letter dated June 15, 1982, Counsel for the Staff brought to our attention an inaccurate statement made in a condition attached to our admission of CMEC Contentions 1-4 in the March 5 Order (at page 14). The inaccuracy arises from the fact that the Staff's review of the methodology for ca1culating the source term of radioactive emissions at Catawba will be ib the Staff Safety Evaluation, not the Staff's environmental impact statement. Accordingly, the first two sentences on page 14 of the March 5 Order are amended to read as follows:

Should these contentions go to hearing, additional information concerning them may be contained in the Staff's safety evaluation report and impact statement. Accordingly, CMEC shall review the Staff's safety evaluation report and draft and final environmental impact statements pranptly after they become available and revise these contentions, as appropriate, in light of those documents.

E. Discovery.

l The Board's Order of May 25, 1982, tenporarily suspended discovery on specified contentions pending our rulings on requests for reconsideration, motions for referral, and related matters. That suspension was based upon the Staff's extension of its expected issuance dates for certain documents, particularly the six month extension with respect to the Safety Evalaution Report. The SER in this case is now scheduled for issuance in February 1983. Hearings normally begin about three or four months after the SER issues. However, in light of the l

i information supplied by the Applicants in Mr. Carr's letter of May 10, 1982 to the Board -- particularly an initial fuel loading date of October 1984 for Unit 1 -- it appears that the hearing in this case could begin somewhat later than the Staff's SER issuance date would normally indicate, if necessary to allow adequate time for discovery, without the risk of this becoming an " impacted" proceeding.

! , In these circumstaances, we solicited the views of the parties on a drpft drder that would have suspended all mandatory discovery in this case until after the status of the contentions became more clearly fixed by I

Appeal Board rulings on key issues. The Applicants and CESG (informally by i telephone call from Mr. Riley to the Chairman) expressed no objection to that approach. The staff supported suspension except with respect to Palmetto Contentions 8 and 16, if the Board decides to admit them. The Staff properly points out that those contentions would not be affected by ,

the anticipated Appeal Board rulings. The Board agrees with the Staff's reasons for allowing discovery to proceed on those contentions, and notes that the same considerations apply to Pa!metto Contention 27. With the l foregoing considerations as background the Board orders that:

(1) All mandatory discovery in this proceeding is suspended pending further order of the Board except with respect to Palmetto Contentions 8, 16 and 27. This suspension applies to all pending matters in the discovery process, including, for example, motions to compel, motions for protective order, and the like.

(2) This suspension of discovery is not to jeopardize the right of all parties to an adequate opportunity for discovery in this proceeding.

The Board intends to modify or rescind this suspension order promptly after the Appeal Board rules on the questions we are referring to it, or af ter the Appeal Board declines referral.

The Board encourages the continuation of informal voluntary discovery among the parties while this suspension of mandatory discovery is in effect.

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FOR THE ATOMIC SAFETY AND LICENSING BOARD b&+

Q $es L. Kelley, Chairman [

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. EMINISTRATIVE JUDGE Dated at Bethesda, MD, this 8th day of July,1982.

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