ML20062D115
| ML20062D115 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/03/1978 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Blau H, Cohen J, Like I AFFILIATION NOT ASSIGNED, NEW YORK, STATE OF, REILLY & LIKE |
| References | |
| NUDOCS 7811200008 | |
| Download: ML20062D115 (26) | |
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November 3,1978 NRC PUBLIC DOM M
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j Howard L. Blau, Esq.
Irving Like, Esq.
j 217 Newbridge Road Reilly, Like eld Schneider 4
Hicksville, New York 11801 200 West Main Street
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Babylon, New York 11702.
i Jeffrey Cohen, Esq.
Deputy Commissioner and Counsel
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l New York State Energy Office 1
Agency Building 2 6
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Empire State Plaza Albany, New York 12223 g.
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In the Matter of 4
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, d.'d LONG ISLAND LIGHTING COMPANY
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(Shoreham Nuclear Power Station, ' N N
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Unit 1)
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Docket No. 50-322
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Gentlemen:
Enclosed for your information are copies of the Commission and Arpeal Loard decisions In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant Unit, Nos. I and 2). "./
These decisicas deal with the treatment of issues relevant to the issuance of a 10 CFR Part 70 license to store unirradiated nuclear fuel assemblies at a facility currently under construction prior to the issuance of an operating license.
The Long Island Lighting Company has applied for a Part 70 licensa for its Shoreham facility.
If you have any questions, please do not hesitate to contact me.
i U
v Sinc rel,
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i ard K. Hoefling i
Counsel for NRC Staft
Enclosures as Stated cc (w/encls.):
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Elizabeth S. Bowers, Esq.
Atomic Safety & Licensir.g Board Dr. Oscar H. Paris Mr. Frederick J. Shon Atomic Safety & Licensir9 Appeal Board Docketing and Service Section Edward M. Barrett, Esq.
Edward J. Walsh, Esq.
MHB Technical Associates W. Taylor Reveley, III, Esq.
Mr. J. P. Novarro, Pr lect Manager 7 8112 0 0 od f G-
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UNITED STATES OF Af,1ERIC
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L t.761 NUCLEAR REGUL ATORY COTJ.*
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Commissioners:
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,' 'I ltj William A. Anders, Chairman gq h
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Edward A. Mason Victor Gilinsky Q
Richard T. Kennedy b
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in the Matter of Docke 5 O.L.
50 323 O*L*
PACIFIC GAS AND ELECTRIC j.
COMPANY February 5,1976 (Diablo Canyon Nuclear Power
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Plant, Units Nos.1 and 2) s
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Upon petition by intervenors for the designation of an appropriate board or i,
panel to hear their appeal from the Licensing Board's order granting a materials j :,, [
license under 10 C.F.R. Part 70, the Commission (1) rules that the Licensing
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Board order is final for review purposes (and hence ripe for review) since it
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authorizes the issuance of a materials license; and (2) pursuant to 10 C.F.R. 2.785, delegates to the Appeal Board authority to assume jurisdiction over the l
appeal.
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RULES OF PRACTICE: APPELLATE REVIEW
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A licensing board order which is interlocutory in the formalistic sense that it
,k was rendered in the context of an ongoing operating license proceeding may h
.llf nonetheless be final for purposes of review if it authorizes the grant to the I
applicant of a license to perform activities that later will be included in its i', ' -
operating license.
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O usuORANDUM AND ORDER
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The San Luis Obispo Mothers for Peace (MFP),intervenors in this operating ll licensing proceeding, have petitioned us to designate "an appropriate board or
,g panel" to hear their appeal from the Licensing Board's order of December 23,
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1975. The utdity had applied for a materials license under 10 CFR Part 70 under L
~h which it could deliver and store fuel assemblies at the Diablo Canyon site prior
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1 to hsu.mee of t!.e reques ed operatics licenses. The Ucensing Board held an I
evidentiry hearir; un the Part 70 heense and denied MFP's motion to present dehvery and storaj;e of the fuelin its December 23 order.'
7 De regulatory staff tckes the position that the Licensing Board's order is interlocutory because the MFP motion was heard as a part of the operating j
heensing proceeding in which hearings are not yet complete. See 10 CFR 2.714a, m
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730(f); Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), RA173121155. He staff suggests, however, that in the circumstances i
of th3 case an exception to the usual rule should be made, and thit an appeal should be allowed.
j We do not think that the Board's order is interlocutory except in the j
formalistic sense that it was heard in the context of the operating license j
proceeding. De issue presented by the MFP motion was whether the utility should be issued an NRClicense that would authorize,it, among other things, to transport and store fuel assemblies at the Diablo Canyon site until operating
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licenses are issued in this proceeding.a That issue has now been heard and j
decided and a Part 70 license has been duly issued. As things now stand, the utility is free to ship and store fuel at its convenience, consistent with the license i
l conditions. Accordingly, the matter is ripe for review.
There is,however,an obstacle to review of the Ucensing Board's order by an l
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Atomic Safety and Ucensing Appeal Board which, under our present rules of practice, can only be removed by Commission action. Under 10 CFR 2.785, the Appeal Board does not have jurisdiction over proceedings for the issuance of a license under Part 70, such as the license involved here, without a specific delegation from us.
We think it would be appropriate,in the circumstances of this case, that the
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Ucensing Board's decision be reviewed by an Atomic Safety and Ucensing Appeal Board. The initial decision on the operating license applications may not l
be rendered for some months. Without, of course, intimating any view on the i
merits of MFP's contentions,it is true that their contentions may be rendered moot if an appeal on the Part 70 license must await the initial decision on the 4
'The Atomic Safety and Licensing Boards may be giver. jurisdiction over proceedings for the issuance of Part 70 materials licenses.10 CFR 2.721. Nntmally, the notice of hearing constituting a particular board confers juri'sdiction in a particular case by referencing the specific license application or applications to be considered. Although the notice of hearing q
estabbshing the present board did not explicitly reference the materials license in question i
here, that license is integral to the Diablo Canyon project, and it does not appear that any interested person was actually prejudiced by the lack of such a reference. Given that Board's familiarity W.th the Diablo Canyon project,it made good practical sense for it to hear and j
decide the related issues raised by the Part 70 materials license application. Accordingly,we hereby confirm the Limnsing Board's assertion of jurisdiction in this instance.
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'If and when such licenses are issued, they would include authority to transport and store fuel and t!" separate Part 70 license would no longer be needed.
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i iew is more
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h appropriate for the essentially factual contentions
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constituted. Accordingly, we direct that Board to assume juris ict on o
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PiFP has requested that its " time to file a formal appealbe exte
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weeks after receipt of the Commission's response to t
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Appeal Board the establishment of appropriate filing deadline
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it is so ORDERED.
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.i By the Commission f
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l SAMUEL J.CHILK Secretary of the Commission
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Dated at Washington, D. C.
this 5th day of February 1976.
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NUCLEAR REGULATORY COMMISSION
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. SAFETY
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ATOMIC SAFETY AND L10ENSING APPEAL BOARD
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f (PPEAL B0rph '
Richard S. Salman, Chairman
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Dr. Lawren e R. Quarles
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Dr.W. Re d Johnson
, >eal Board
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Docket Nos. 50-275 O.L.
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gn the Matter of
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I cory that PACIFIC GAS AND ELECTRIC COMPANY l
[Diablo Canyon Nuclear Power Plant
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IJnits Nos.1 and 2) h On the ground that it would imolve no unreasonable risk of harm to the "W
public, the Licensinp Board authorizid the applicant to be licensed under P to e W
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mablo Canyon fa:ility before the facility itself was licensed for operation.
Under our Intervenors excepted and the Appeal Board afSrmed. holding that the Licensing }
O are bound pard had (1) applied the correct standard (2) rendered a decision in accordance e
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to the C
.ith and supported by the evidence and (3) not committed prejudicial pro-
'er, I feel e redural error.
ayers" as s gULES OF PRACTICE: TELEPHOS E CONFERENCE CALLS the judicial sig a
1 definitely,ho,q Promptly after any prehearing conference carried on via telephone dunng l
he Commissiong 4' shich rulings governing the conduct of the proceedings have been made,
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licensing boards must draft and enter written orders confirming those rulings.10 rging a Commhalg C.F.R. Q2.752 (c).
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RULES OF PRACTICE: TELEPH0!!E CONFERENCE CALLS H
% hen a prehearing conference is conducted via telephone, the licensing
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board must insure that representatives of all parties concemed are on the line y
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'unless that representation has been vaived.
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RULES OF PRACTICE: HARMLESS ERROR f
it is error for a licensing boarc to make a ruling at a prehearing conference jJ:
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proceedmts. If that he via telephone where one party is ur. represented without conveying that ruling to 4
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FOR THE ATOh11C SAFETY
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AND LICENSING APPEAL BOARD
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T.. 4*J: M.M Supplemental concurring opinion of Afr. Salzman:
~*i PACIFIC Qffe '.. ~ I In Jamesport, the NRC staff had urged upon us the theory that parties whc Tr (Diablo I lacked " judicial" standing could nonetheless be admitted to Commis
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Units Nc "E-;'* *; j,-
ceedings "in the sound exercise of administrative discretion". See NRCI.75/10 g M M /;,... '....,
658. I supported that position, expressing my view that the Commission was not
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bound to apply-and indeed should not apply-in its own proceedings rules or. -
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standing developed in the federal courts for reasons largely extraneous to the
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admininstrative process. Id. at 654-59. That position, ho vever, was rejected b)
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the majority of the board hearing the Jamesport appeal. Under our practice &
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subsequent appeal boards (as well as the licensing boards) are bound by the - Ci1 Board ha Intervenc i:
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Jamesport ruling that judicial standing tests govern entry to t
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licensing proceedings. Hence, though my personal views differ, I feel constrainec -
Ofic.-@.4y- 'I to go along with my colleagues in holding that " rate payers" as such lact g-- '
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standing and may not intervene in this case.'
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And it is by no means true that every party deserving of the Commission's ear r
tests with some liberality. Those tests cannot be stretched indefinitely,however. E Pror j-py.
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would have standing under those precepts. I therefore concur m my colleagues'
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treatment of this intervention appeal and join them in urging a Commission d
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decision now on the certified questions.
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i JM-not meet the tests for judicial standing to intervene in Commission proceedings. If that be g-F., i f. h*1 'l true, no clue is there prodded about who possesses that discretion or about the standards 7
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f j for its exercise. To raise such a " hint" to the status of a holding (or even a dictum for that the abt
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matter) would require us to engage in levitation. not adjudication.
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It is not error to deny discoscry into matters irrelevant and immateg. p'
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to store unused nuclear fuel assemblies without a finding, inter alia. that issuan:e O
taking test of the license would not constitute an unreasonable risk to the public health and 7' The inters N3
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RULES OF PRACTICE: CROSS-EXAMINATION (HYPOTHETICAL Q out c !
fi,"(( L TIONS) ber 23, I R.. Lc r
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While the appropriateness of any given hypothetical question is a rnatter'. S nei j
largely for the trial board's discretion, as a general rule such questions are irnper! f 3rd ord
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Mr. Philip A. Crane, Jr., San Francisco, California (Messrs.
l,. ' [ [/;M.; q John C. Morrissey, Dennis C. Sullivan and Bruce R. Worth-t-h soarded a i 66mp @
ington, San Francisco, California, with him on the brief) for
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.s the applicant Pacific Gas and Electric Company, appellee.
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'.y Mr. James R. Tourtellotte (Mr. L. Dow Davis with him on i'
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UI w..ety" 4 The Licensing Board now has before it Pacific Gas and Electric Company's
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-. #,ve and store at the Diablo Canyon site nuc!ect fuel assemblics for future use
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- ha'Mg cat facility. The San Luis Obimo Mothers for Peace and John J. Forster are
[ (Q N nr14 ervenors in the operating license proceedine.11:ey objected to granting appli-jj l,l p 3 10 CI A
- jt that interim license before the plant itself was licensed,' contending that g: p storage of nuclear fuel at the facility would constitute an unreasonable risk
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the Public health and safety. The Commission's regulations prohibit the ry%
l 4 nce of a license under Part 70 where such risk exists.10 C.F.R. 70.31
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g The Ucensing Board held a three-day hearing on intervenors' objections,
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' gng testimony from seven witnesses proffered by the applicant and the staff,
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' ge intenenors presented no witnesses of their own but their representatives, l,"hg
' go are not attorneys,did cross-examine those of the other parties. On the basis g ; t'Tt*
,' i:he record developed at the hearing, the Board concluded that the applicant 8
, *J i,vid receive and store nuclear fuel assemblies at its Diablo Canyon facility c
"AI. gg v.:hout creating any unreasonable risk of,eblic harm. Accordingly,on Decem.
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. yr 23,1975 the Board authorized the applicant to be licensed to undertake t
s.;h storage.3
.E is a natie The intervenors have jointly appealed from the Licensing Board's December
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'For obvious reasons, authority to receive and store nuclear fuelis granted to applicants ga ~
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, anzded an operating license.
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'The Commission's regulations provide in pertinent part that "[n]o license [under Part
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would constitute an unreasonable risk to the health and safety of the public." 10 C.F.R.
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, 170.31 (d).
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'The Licensing Board's December 23rd order is unpublished.
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'Our jurisdiction is normally limited to appeals arising in proceedings under Part 50 of
, te Commission's regulations.10 C.F.R. 52.785 (a). We entertain this Part 70 appeal by
". 7" mtue of a specific delegation of authority from the Commission.CLI.76-1, NRCI.76/2,73 Tebruary 5,1976).
'On March IS,1976 we denied Joint Intervenors' motion to stay shipments of nuclear
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, 'ael to the plant site pending our disposition of this appeal. ALAB-320, NRCI-76/3,196.
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ged to and did not paricir I
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'oint Inurvem rs direct our attention to three procedural rulings by th -
whether the Board failee to Licensinc Board which they assert are grounds for overturning the detisix :
harties on the line i
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without notica to the repr-:sentative of the Mothers for Peace, to that late' ~
g pertinent here are its it stru
-u venor's serious disadvantage; (2) denied improperly intervenors' attempt t -
forthcoming hearing, f, cst, i.'
discover details of the security plan for the Diablo Canyon facility e g' I
! collapsed in an earthqu f,
limited unfairly intervenors' right to crossuamine witnesses for the purpose g '
I eliciting testimony about the value of the nuclear fuel assemblies and it, number of saboteurs who might be able to break into the plant.We discuss thw
! and saboteurs had gaine3 en assumptions, only two isst assertions in that order.
- 1. The modification of the issues in controversy. He hearing below,,, r-quake" and (2) "the cffee precipitated by a motion made on April 10,1975 at a prehearing confererne, fourth issue (alternativa fui Mrs. Sandra Silver, representing intervenor Mothers for Peace, there mosed to.
only economics and was nc preclude the applicant from receiving and storing nuclear fuel assemblies at the - the subject of the matt rials-The Licensing Bi ard.
Diablo Canyon site before the facility was licensed for operation (Tr.444),og,
Although Mr. Silver rimit June 3rd, Mr. Gordon Silver, husband of Mrs. Silver and representative in this ca!! with Mrs. Silver,'.ie st P*
proceeding of intervenor John J. Forster, moved on Forster's behalf "to alle, simplification of the hear l
him to associate with and support [that] MFP motion at all proceedings con.
. /.,
nected with it." On June 24th the Licensing Board acted on both motions.h ~
sents to us that she did not ruled that the MFP motion raised factualissues which would require a hearing.-
opening of the heariig it m
that the failure to give IV for resciution and stated those issues to be:
(1) The forces to which the fuel storage building could be subjected to a them at an "unconsoona' the result of the occurrence of a hypothetical earthquake appropriate '
say, the Board's orde r mu We begin our a ialys for this site; (2) The probability and significance of the formation of a critical mass asa intervenors not to h ve b result of the application of this force (including the presence of water case in the circumst:.nces ti,.,
" i do intervenors themselvej due to possible pipe breakage);
1 (3) ne probability and significance of a critical mass being formed by an compelled to labor by 11 of the record we pe:ceivr act of sabotage;and We reached our cor (4) /.!ternat! res to the storage of the fuel at the site.'
did not use the confer cc
- 7. : \\ 'i Here were no objections to the Board's formulation of the issues. He Board.
eliminated certain exis}
~
j
?
also granteil Mr. Silver's request on behalf of intervenor Forster "to associate assume (for purpcses r k
~
with and support" the MFP motion.
prevail on those i: sues.
At Mr. Silver's instigation, in October the Board heh' a telephone con. ",
ndings, the intervanors
(. -g.
ference cell to d.scuss matters relevant to the conduct of the fuel storage license withstand an eartl.quak p[
hearing which had been calendared to get underway the following December.
7 (Tr. 650 52). For reasons not entirely clear to us,Mrs. Silver was apparently not.
't.icensing Boart Orde
^
' Ibid.
'lbid.
n e]c> int interver. ors' tr
- 0rder of June 24,1975, p. 4 (unpublished).
y
-T x
a L.'
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l gcd to and did net parti.:ipate in the call. // bid.) Mr. Siher was aware of11 it
[b j
f.,ct at the time, but made no mir. tion of it. The record is ambiguous abc st g [*,
1 whether the Beard failed to :.ppreciate Mrs. Silves's absence from among the a
I
/'".m ;'2 h. t,..-
parties on the line or assumed that Mr. Silver was speaking for her as well wr
,d i
tr g.
- - M 5"e5 in cer.tr v6 hirnself.
, ace, to that 6,,
During the course of the conference call the Board made several rulir ;s.
l F y 3
i Tn 's' atternpt so pertinent here are its instructions to the parties to assume for purposes of he D" I"cihn end q forthcoming hearing, first, that the Diablo Canyon fuel storage building i ad
!lg d I
7 I ' '5
- .se,
collapsed in an earthquake and damaged the racks in which the nuclear fuel"as i
k T
stored and, second, that the plant's security arrangements had been breac' ed ssemblies and tbc
'M Auss the,c and saboteurs had gained entry.' The Board then indicated that,in light of thse l
{
assumptions, only two issues remained for trial: (1) "the effect of an ca.th.
b
89 'aie.v %
quake" and (2) "the effect of entry of saboteurs."' The Board dropped the
- "4 'O'tferer.ce, fourth issue (alternative fuel storage sites) althogether, obsening that it involved
<}
"' thue moved to only economics and was not relevant to the issue of the public health and safety,
[;
[
the subject of th~ materials license hearing?
- I p
asurne5 at the e
tion (Tr..ut) -)n The IJcensing Board did not memorialize its actions in a formal orJer.
g
[-
Although Mr. Silver admitted discussing other matters raised at the confere nce j
L
.nesent/ ' ir. this
,s betal.. to aN call with Mrs. Silver, he stated that he did not draw her attention to the Bosd's
'l r:.ceedinEs cao.
simplification of the hearing issues. (App.Tr. 13 14,77 78). Mrs. Siber repre.
h P
h}
i bc th motioru. It sents to us that she did not become aware of the modifications sittually unti' the
'I l rmire a hearing opening of the hearing itself.'" The Mothers for Peace now advance the c' aim
}
p that the failure to give Mrs. Silver timely notice of the change in issues pl ced
.~
be subje:ted te as them at an " unconscionable disadvantage"in the hearing. For this reason, hey f
^
qua4 appropnate say, the Board's order must be reversed, We begin our analysis by observing that the Board below expressly found a critical mass as s intervenors not to have been prejudiced by being required to go ahead with heir l
f.d.
Pruence of water case in the circumstances described. (Order of Dec. 23,1975, p. 3; Tr. 658.) Nor f
do intervenors themselves particularize any disadvantage under which they were eing formed by ao compelled to labor by the IJcensing Board's rulings. On the basis of our re view
'f l
V of the record we perceive none.
I We reached our conclusion by the following route. First, the Board 1elow did not use the conference call to inject new issues into the case. It rr.erely
[l u
e Board eliminated certain existing matters in controversy by requiring the parties to
{M ntu
, ass c ate assume (for purposes of the part 70 license hearing) that intervenors s ould i
prevail on those issues. Thus, as a consequence of the Board's conferene: call
' a telephone con.
rulings, the inter <enors no longer needed to show that the facility could not f, -
- .1 fuel storage license withstand an earthquake (this was issue (1)). Instead, they had only to demon-
't H
Jowing December.
I
{.y eas apparently not
' Licensing Board Order of Decernber 23,1975,p.5.
(
- I l
' Ibid.
i
'lbid.
" Joint Intenenors' brief, p. 7, and Tr. tis 0-51.
k.4y 813 s
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crate how, in the event of such a seismic occurrence, t'.e stored nuclear f be determined at the proi might be formed into a " critical mass" and, should 11 at transpire, ho wntten and entered have public might be harmed as a resu!t (issue (2)).
Similarly, the Licensing Board did not burden intervc iors by ruling that the was hannkn.
s parties need only consider the consequences of"the entry af saboteurs"intob Diablo Canyon facility and not concern themselves abo-t how that entry i j where a failure to enter achieved. To the contrary, as the Board below noted, this ruling relie recognize that instances :
intervenors of a burden they would otherwise have hr i to shoulder, te,'
IUg c nferences by telept
/ '
demonstrating how intruders cou!d evade or overpower tia facility's guard for those occas ns the boat
~
In other words, for purposes of the hearing the Boarc accepted intervenoy --
8" uce m W h t 7
argument that applicant's security arrangements would b: inadequate (issue (3)
Prac part 1). This allowed intervenors to make out a case against issuance of the l happened hue,W h materials license on sabotage grounds simply by showirg-if they could-how tion before memory fade saboteurs might use the stored nuclear fuel to endanger ;.ublic health and safe (issue (3), part 2). And the dropping of point (4) by the Board meant thatif staff is correct in.ts s i
intervenors could prevail on either of the two issues ren.aining(i.e., the effects partic1Pation m the cor of sabotage or earthquake), the Part 70 license would h ive to be denied evenif.
the applicant lacked an economically reasonable alternat;ve to storing the fuelat reiterate what we said i
the Diablo Canyon site.
which include some par in short, the Board's actions in the conference :all did no more than f the most d_re i
case eliminate intervenors' obligation to establish (or to diteredit their opponents, Possibility of a violatto-
~
showing on) a number of key points. Whether the B ard below should have tions. W cucunmanc reformulated the issues as it did may be debatable. But.he reformation accrued C
E*"
to intervenors' benefit, not detriment. Thus, even acce ting as true Mrs. Silver's lack of awareness of the Licensing Board's simplificatic n of the trialissues,the f any Party whobecc only consequence was her appearance at the hearing primed to litigate four call to bring that fact t issues when only two remained to be heard.' 8 Be that a it may,it is fruitless for -
of the board and the 7-a party to complain on appeal about trial rulings whic:t operated in itsfavor.
appropriate inquiry at We do agree with the intervenors that the Licensing Board should have A the line or have waivei reduced its prehearing conference call rulings to writing Had this been done,the type encountered here 4
confusion about the number and nature of the issues te be tried probably would
- 2. Denial of disc 2 have been avoided. Indeed, the Commission's Rules of'ractice contemplate that Licedng Board reser a licensing board will " enter an order which recites the action taken at the plan to the operating n7 z
818-819
' ' "Cntical Mass" and " criticality" are discussed in part 11, afra, pp.
Puerto Rico Ware
Licensing Tcard Order of December 23,1975,p.3.
s
Lack of notice of those changes might have inconvenier.:ed any witnesses brought by]"
ALAB 313, NRCI-76/2,9 intervenors to testify about issues no longer in the case. As s a noted, however,intervenors}
'*We appreciate that this proceeding. Neverth had no witnesses of their own.
F '
Ford Motor Company v. Mathis. 322 F. 2d 267,274 (5,h Cir.1963);#ighway Const.
Board below and to the Co. v. City of Miami.126 F. 2d 777, 780-81 (5th Cir.), cr riorari denied, 317 U.S. 643 fully aware of procedt (1942); Langroise v. Cummings.123F.2d 969,974 (9th Cir.1941), cerriorari denied. 314interests in order to insu U.S.664 (1942); Montgomery Ward & Co. v.Medline 104 F ~d 485 (4th Cir.1939).
814 4
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wntten and entered such an order fellowing its rulings at the conference re l$
.Z
~. ~.l; pe call was error. For the reasons.ust desenbed.however,in this instance the error i
ingth::y#
. @W9
'rs'* -
was harmless.
Waifestly, that result wa:. fortuitous. But we can emision other situations
', *[CZi I
I en where a failure to enter writte i procedural orders may not be so harmless. We recognize th tt instances arise v hen licensing boards feel they must hold prehear-
- g. ;('QM
.ng r H
[Q --+.s fer,h ir.g conferences by telephone. For the reasons this case illustrates,however, on jj p$j{
uard('*'
those occasions the board mu.t insure that orders rendered over the telephone
.8 7 r t
ntenen.,
are followed up promptly witl written confirmation to all parties. Honoring this l, t-pn
- (issa, g3b practice-required by the ruies-not only should avoid repetition of what l ' pj]
happened here, but also would enable the parties to bring to the boards'atten-nce of tion before memory fades any discrepancies between the oral and written orders.
f, pg
'ou!
t
> t~.4r %
and s:.re Our disposit;on of this point renders it unnecessary to decide whether the staff is correct in its suggesHon that, on the facts of this case, Mr. Silver's Qg ent th2
- the erree participation in the conferenie call was adequate notice to Mrs. Silver of any g%"3
?
t
.ied eSen if action taken there. (See Tr. 655 66). We take this opportunity, however, to
' s, l kMkf33 reiterate what we said in No-th Coast: "As a general matter, conference calls the fug TQ.T l j {j.yd which include some parties a-d exclude others are to be avoided except in the j
' note than case of the most dire neces>ity."is That case, unlike this one, involved the bag e I
p ssibility of a violation of t'.e Commission's rules against ex. parte communica.
y ipponents, ould ha tions. The circumstances heri exemplify another good reason why conference calls among fewer than all the parties are unwise.
, 3,,%@
~
m accrue 1
is. Silve.,
In sum, we believe that :onsiderations of simple faimess make it the duty l
issues,tg f any p. arty who becomes as are that another is not represented at a conference j
, Wh (y ig igate four call to bring that fact to the ] residing officer's attention. And it is the obligation i
I h==5 uitless for of the board and the staff (as a representative of the public interest) to make appropriate inquiry at such t. call to ascertain that all the parties are in fact on
{
.:.k. N sfoor.8*
the line or have waived repte entation.By takingthatprecaution,problemsof the g
ould hav,
?
E' type encountered here and ir North Coast should be eliminated.
J.h, h:n done, the My would
- 2. Denial of discosery. For reasons which need not be rehearsed here, the
' NC.4 plate that Licensing Board reserved ccnsider* tion of the adequacy of applicant's security plan to the operating licenu hearing. Completion of discovery in this area has en at the PM U
- Mr
! 2f.wg.
i I
' %erto Rico k'ater Resc urces <tuthority (North Coast Nuclear Plant, Unit 1),
ALAB.313, NRCI-76/2,94,96 (.976).
' ought by n
- *We appreciate that Norr7: Coast was handed down after the conference call at issue in
. rervenors n
g.
l this proceeding. Nevertheless, w tat we said in that decision should have been obvious to the I'y) g
- y Coast.
Board below and to the staff. T trticularly where pasties are proceeding pro se and are not
?pr+gm
' U.S. 643 fully aware of procedural nic : tics, the boards must act scrupulously to protect their Q*ly-
"ried. 316 interests in order to insure that pstice is not only done,but seen to be done.
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been delayed pending the adoption of final arrangements for keeping int...,
it.. (4 M, M,th-
! c mee to entiah.ty tion about the plan confidential." This was one of the reasons which uM...'
i the Board's decision to instruct the parties to assume for purpmes of th I"
ti. A 'i Y '" "
rials license hearing that the security plan was inadequate," thus m[t
.I ti d #
- " Ii necessary in this case to delve directly into questions of the risk of harrnh.
rye, (Tr.1034). Gn rG,gng say public health and safety from successful acts of sabotage involving the stE.,"
widn the Board s di nuclear fuel assemblies."
intervenors nevertheless contend that their lack of discovery of the secu.-i ftgly entitief to limit:
plan handicapped the presentation of their case.We think intervenors' positi
[$
testimony.1 a C.F.R. L E
I"I'" '
not well taken. A purpose of the security plan is,of course, to exclude una; tions abo' t the valuc rized individuals-including saboteurs-from the facility. The Board, hov,e theory v n h h -
required the parties to assume that security was breached. Consequentiv, th -- i staff is correct in pointing out that this left intervenors free to assume 15',,
purposes. M M *
~
security would be breached by as many individuals as were necessary for aslo 1
"10 I*' ' #* "*
as needed to establish " criticality." Knowledge of applicant's security plan
[
, o ted, the parties t thus irrelevant for purposes of the Part 70 hearing as structured by the B ud'.
had already gained pc to eXP ore the possibl l
consequently it was not error to hold the hearing before discovery was com.
I that fuel. Intervenors.
pleted in this area.
- 3. Limitation on cross-examination. Intervenors' final assertion of pro. '- {
the Board did not at.
cedural error involves two occasions on which the Licensing Board cut sh :, n i g2.757.
{
their cross <xamination. The first instance involved Mr. Undblad, one of appli.
cant's witnesses. Intervenors contend that the Board would not let them explore i
through Mr. Undblad the situation which would be created in the event more ~. !
In the first por:
than four saboteurs broke into the plant. It was intervenors' position before the J without cause to con Ucensing Board that "the consequences of an act of sabotage is a function of the number of saboteurs". They argue to us that their " position was com. _
here to a considerat below. In order to pl pro,mised by the Board's limitation" of their cross-examination.2' The short answer to this charge is that intervenors simply have miscenceived context in widch the the witness' testimony and the Board's rulings. Mr. Lindblad merely testified a brief and perhaps >
used and the way it i:
that,in his judgment, the plant's internal security forces could handle any threat A. Background.
up to four intruders, but for greater numbers the applicant would rely on "out.
uranium dioxide (ur side public agencies for reinforcement."(Tr. 1027 28,1033).The Board did no use this testimony as a basis for ruling out consideration of acts of sabotage 3.1%). The fuel is in achievable only by more than four indisiduals. Neither did it limit the number of intruders intervenors magnt hypothesize. What the Board did do at that point
% applicant als-was to remind the intervenors that they were to Proceed from the assumption properly cut off becaus
('
that " criticality" would be achieved by whatever number of saboteurs entered uained saboteurs'", ci:
A!.A3197R,7 AEC 8" that it must demonst:
saboteurs and to alert L "See Joint Intervenors' brief, p.10.
Ibid. See 10 C.F.R. O
" Licensing Board Order of December 23.1975, p. 5.
" See part II, infra, pp 817-828.
hrnitation of the inters above, not because all a
" Joint Intervenors' brief, p.10.
816 p... gg.
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i j tr.',,
l#}..,(you att able to establish that there would be a signific.nt wah 110wmg
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f'..g
- 5 ag.~.3 l the. g e
- iticality, it would allow them to take up the likehbd of its occur.
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4g
- ,(Tr.1034). Given the posture of the case and the Board's assumptions
'f 'T,$
9 N g;.
@, ding the sdoteurs' effectiveness, we think the ruling comp!.dned of,as
- p Em.(;W h.;hin the Board's discretion to make. Under the Commission's rules, the %
entitled to Imm the cross-examination of witnesses to exclude irrelevant S O g ;;5 4
j{8
- ,,3 iony. G e F.lt g2.757 (c).3 I, N'h nterveners also complain that the Board sustained objections to their quer-
's. MT"N 9
' M.. S I p.s bout the value of nuclear fuel assemblies. (Tr. 1205-06). Intervenors' 1 '.
~
a I W.J.
' y'" 9 pfY was that these are costly items which might be stolen fn blackmail
, --g
',,. poses.We think the Board did not err in cutting short this line erinquiry as
_, y, Kf M seeeJ. ?.s 8
e t.
g far removed from our immediate concerns"in the hearing. (Tr.1206). As
[i NP i 'Q Q
.h noted, the parties were instructed to accept as fact that unautherized persons
'4 p; y
),
['e g already gained possession of the nuclear fuel. He point of the hearing was y
[ L, y td' h,
f g oplore the possible risk of harm or injury to the public throui;h their use o
~'4 FM-Q
-se fuel. Intervenors' questions were clearly tangential to that br. sic inquiry and
,j[
{. Board did not abuse its discretion in declining to allow them.10 C.F.R.
-T*-
cut 9'
, s.'.75 7.
p :g
- 5. %.*T:i
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e of n rn eg" Il rg
., 'k Q 6.8 pa I. 4 4, s..%%Q' vent %
l in the first portion of this opinion we explained why intervenors were U / fj Qj,
befe,,,j out cause to complain of the ljcensing Board's proceduralrulings.We turn h::e to a consideration of their substantive dissatisfaction with the decision
[ l p'*%g u
m.
ew, in order to place their objections in perspective, as well as to indicate the l
g!pn
% 3, h,tm.%
t cor.gg
- context in which the Board's rulings were made,we preface our discussion with li, hp[.N
, a brief and perhaps somewhat elementary description of nuclear fuel, how it is l
y tenea l ad and the way it is stored.A. Background, ne Diablo Canyon nuclear power p a y tw 1 g',q'y.y gq y
om.
arsnium dioxide (uranium-238 enriched with uranium.235 to a maximum of
..;5 fr.
'rd N l
f
.1%), ne fuel is in the form of " sintered" pellets; that is to say pellets which 3
L T saby s M, h..@:q.
[h' brnbug s
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0 38 "The applicant also suggests (br. p.11) that the intervenors' cross exammation was
,ttw.p.%
j reperly cut off because " license applicants need not consider actions by an ' armed band of
' h)Q M e L
4 L-:%.+o r1 MW t
uned saboteurs *", citing Consolidared Edison Company (Indian Point Station. Unit 2),
Alls i
' {*.'.y'fd; ALAB-197R. 7 AEC 825, 830 (1974). The applicant mistcads our decision,for it also holds g
J eat it rnust demonstrate that it has a security plan adequate to detect encroaching a
e
, thoteurs and to alert law enforcement authorities to their presence quickly and effectively.
f D' 2
1 3 Ed See 10 C.F.R. 5 5 50.34 (c). 73.1, 73. tp), and 73.40; Regulatory Guide 1.17. The k
.T '
," t itation of the intervenors' cross-examination was permissible for the reasons discussed
,M
- i 5 ; p w[.{.
eo*e not because all aspects of protection against saboteurs are beyond the Board's ken.
I s..,.
ii L-.'M,
j 2
- IJW 4 -
817
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.s
.-/ < / *.e -
-m
,:% C s'."**;
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,. ^- Q g N7=L -d @'T %?rlM'yph* *g-*k..'dg,g.g
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- a
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I hase been sufficien 1;c..wed. wse tem to asn me the foim cf a c n.,
is taking place is !
ceramic material. (Tr. fi1. p. I130, p. T,. Lw fuel pe" cts ac nc.t d ngered the heat energy ti.
ceeling water whi radioactive and may <nfc!y be held in t*1e han The stable ch pellets are stacked in tubes meie of a curresion-resistant alley of zircon electric power.
known as "zirealoy" llbiJ./ Ea tube ineasures about twelve feet iong, butt 4
an outside diameter of only 0.374 inc es (Tr. fol. p. I130, App. A). (Their a series of essenti k
slender shape suggests why they are con.monly called " fuel pins".) After being sufficient supply the presence of loaded with pellets, the tubes are pressurized with helium and sealed.as Unused 3
fuel pins,like new fuel pJlets, may be handled without danger.(Tr. II60) Th.
I
moderator" (ust
'i fuel pins in turn are permanently assembled in a 17 x 17 square array, are fhed For reasons we in place by top and bcttam nozzle assemblies andlaterally supported by grids sti neutrons will terr nird, the fuel el 6 positions along their length. Each array of fuel pins is known as a " fuel r
assembly" or " fuel e'enent," is approximately 13-1/2 feet long and 91/2 inches j
a proper geometr square, and weighs approximately 3/4 of a ton (1500 lbs.)(Tr. fel. 130, App.
i Finally, the heat I
the moderator is A ). It is in this form that the uranium fuel is placed in reactors.
in about one third of the Diablo Canyon fuel assemblies,certain of the fuel f
them escape ("n pin spaces hold mooble " control rod cluster assemblies" containing neutron-creases the likeli!
absorbing material, which can travel in and out of the array. And in lieu of undergo fission (
(
certain other pins, steel rods with " burnable poisons" have been inserted for back mechanism purposes related to 6e efficiency of reacto: operation.(Tr.1050-51).
an uncontrolled ne assemblies are made at a fabrication plant (in this case by Westinghouse supm), the sud in South Carolina) and trucked in reusable sealed casks to the reactor. Each caskmoderator to fic is steel, holds two f sel assemblies, and weighs 7,400 pounds (3.7 tons) loaded.
forces created b; (Tr. I163). It is permission to receive and store these fuel assemblies at the ly, will thrust 11 Diablo Canyon facility which the applicant sought and the I.icensing Board immediately dis:
-granted in this proct eding.
ng a condition r The chain reaction principle on which nuclear reactors operate has often At the Dial been described. For purposes of this case it is sufficient to observe that, under specially constr:
'a.
appropriate conditions, a uranium atom which absorbs a neutron may undergo critical array", a
" fission," that is split into two or more lighter elements (" fission products"),
mass, ne rack:
release energy in the form of heat, and free additional neutrons in the process.
constructed of '
Should these neutrons strike other uranium atoms and one cause fission, the "In more tec process will be repeated with the same consequences of heat generation and when the number neutron release. In an operating nuclear power reactor, conditions are main.
.. f" tained that assure the occurrence of this stable " chain reaction"in which each
,,2is
,,((ti fission triggers another. His balanced condition of continuous neutron produc.
assu cending to rials in the systen tion and loss is known as " criticality"; a physical system in which such a process one generation multiplication fac (criticality) the r
- Tr. fol.1130 at p. 8, t 157,1163.
Because it is in hard pellet form, the nuclear fuel is not in uniform contact with the multiplication is fuel rod itself. The main purpose of the helium is to use its superior heat conducting neutron populati.
properties to facilitate the transfer of heat from the fuel to the rod when the reactor isin so that K,gg agair operator or it ma operation.
818
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- _ =.
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.;. my ph:c. is id to hae "pn uh.a."" If the njstem is a powcr reactor,
'[f Y:$
- g., l i.: heat cue:c.3 rete:,ed by the fissien proccss is removed frem the fact by ieG r
' i;. O.m,..
'rea-Er.^y'
.- J.n; wate: WJ:h i.!timately produces stum to drive a turbine and generate
- g..
Ung.:bu ne stab'e chain :caction process just described can be sustained only where j.Md M]
t f ti n..
c.rcmc P"er-reries of essential cenditions are first satisfied. To start w;th, there must be a
. 4 pM r
. ! Af$r i fiicient supply of uraniam fuel. No chain reaction can be sustained without
{
- k NE.$
> A) (n
'.y pre >ence of a " critical mass." Second, the fuel must be placed in a Mj.
j.:3 t,,, ;,
f t!!60) g podaator" (usually water) to reduce the speed of neutrons. (Tr. 893, 1139).
);1:4 foi =$ "5 ** 8'eed not go into here, this increases the likelihood that the t
[rf p[. (
sy, are fis.d 3 by g-ih.t neatrons will remain in the system, strike the uranium atems and cause fission.
i
.a i
j eh g d, the fuel elements, and the rods within those elements, must be arrayed in i as a 7.g i,;A 8-1/21-4
- preper geometric pattern, with the fuel / moderator ratio within certain limits.
.I130.An.
F ally, the heat produced by the fission process must be carefully controlled. If yQ-t
, e mvderator is allowed to overheat,rather than slowing the neutronsit willlet j
-S 3 3
i kFQ n of the f:.cl them escape ("modcrator voiding," Tr.1087). And heating the fuel itself in-
- ases the likelihood that the uranium will si nply absorb neutrons rather than l g -Q 8
trig neut...
d in li.. i ut.dego fission (" doppler coefficient"). (Tr. I141). In either event, these feed.
{ g, y g g
. inserted fa gek racchanisms act to terminate the state of criticality. In the limiting case of h
- a. uncontrolled power excursion or "supercriticality event"(see footnote 24, tQM (estinght.ase 3.,pra), the sudden generation of great amounts of heat causes the water
$. Eik ir. Each c24
- r. ederator to flash into steam. Unless the excursion is otherwise controlled,the I[y"t ons)1oaded.
forces created by enormous steam pressure, which occurs almost instantaneous-
< /jfh L tg]
iblies at the 1,, will thrust the fuel elements apart or distort the slender fuel pins. Either case nsing Board immediatelf disrupts the geometrical confi uration of the fuel,thereby destroy-5
.. j ing a condition necessary for criticality and terminating the chain reaction.
te has oftm.
At the Diablo Canyon facility,270 fuel elements can be stored vertically in
- @q -
r that, undet saecially constructed steel racks. The racks retain the fuel elements in a "sub-
. Vi nay unde g3 fritical array",i.e., sufficiently separated to prevent the formation of a critical
- j. kQ e
E.*fud
. products 7, mass. De racks themselves are permanently affixed to the bottom of a pool ithe process-constructed of reinforced concrete and lined with steel.His fuel storage poolis
[kh.y
, h r fission, the
'. t.* y,
.f,w.Q
'*In more technical terms, a state of criticality exists in a neutron multiplying system aeration and 33 when the number of neutrons in or:e generation equals the number in the preceding genera-ti n. In this condition the neutron production rate (due to neutron absorption and fission Q['M
'ns arr ~ *in, t
?
) whik ch U) is exactly equal to the neutron loss rate. Neutrons may be lost by absorption in 235
- tron produc*
23 5U (leading to more neutrons),by non-productive absorption in 2asU and other mate-
.p%
m
,d #
1ch a process rials in the system, or by leakage from the system. De ratio of the number of neutrons in Jg- $ g' one generation to the number in the preceding generation is commonly catled the 9
1f mul:iptication factor and is often referred to as "K-effective"(K,ggWus for exact batance Yk'.. t
[
(=iticality) the multiplication is unity and K,gr=1. An unbalanced condition in which the multiplication is greater than unity (a condition known as supercriticatity) causes th'c ntact wP.h W
- '""I"'M rieutron population to increase continuously until some change acts to restore the balance
- i.,[( ej so that K,gg again equals unity. In a normal reactor the restoring action may be taken by the f % 'a -
ie react r h a l
operator or it may be the action of an automatic control or safety dedce,
?#l ?.d.c
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C Risk to the public.
I b
h 40 feet deg and Siled with cold borated wates to a point 23 feet a ove t e 3p carlier, the Board instructu
't of the fuel. The water protects penons in the fuel bui' ding from exposurt to l
uboteurs would be able it,
)
3,)
r:fiation when " spent" (i.e., used and therefore highly radioactive the stored nuclear fuel elements are stored in the pool. As an additional safety measure, neu' an.
the Parties were required.
absorbing boron is maintained at a concentration in the water high enou'. to that saboteurs could u i
prevent the establishment of a critical state under any geometrical configur and second,if they did so,:
q.
To this end the app!!
of the fuel elements.(Tr.fol. 850,pp. 5 9).
Because of their weight, individual fuel elements can be inserted in ( re.
engineering project mana; moved from the fuel racks in the pool only with a powered crane. (Tr. i 139, 3
(Dr. Brunot). The staff te; 1041). Even were some of thnse elements removed from the experience in nuclear poi in the poolin the appropriate geometrical array, criticality could not be ach n diluted with the earned doctorates in nu urass the borated pool water was replaced or substantially qualifications.ne essence fresh water. It was testified that the dilution would require more than fou and for intruders to be able one half hours to accomplish under the most favorable conditions; total replace stored at Diablo Canyon ;
ment would take longer. (Tr. fol. 850, pp. 6 9).
but momentary duration -
The foregoing recital is well documented in the record and is not disputed.
intervenors offered no At issue before the Board below was whether, given these conditions, there participation was limite6 exists an unreasonable risk to public health and safety if a critical mass v.ere to
(
perts in an effort to weak be formed as the result of an earthquake or an act of sabotage.We turn now to On the basis of the that formation of a cr B. Consequences of an earthquake. The Licensing Board held tl at the extremely difficult," an1 these questions.
Diablo Canyon fuel storage facilities were so designed and located t! at the though theoretically por.
consequences of an earthquake "cannot lead to the formation of a :ritical decision authorizing the '
mass." (December 23rd oider, p. 8.). On appeal, Joint Intervenors neit!. : cha relied on its further fir.
lenge rior discuss that conclusion in their brief, much less attack the e :ide critical mass from the introduced before the Board below upon which it rests,in the circumste ices we unreasonable risk of har and content ourselves with noting that,in our 88
- 1. Likelihood of need not consider the issue judgment, the Licensing Board's conclusion on this question stands on venors do not questior l
evidentiary footing.8 8 saboteurs being able tc even a " remote" possit
" Appellate tribunals may generally disregard issues not briefed and we fellow i ? uc! car.1),
fore, we sunply note t practice." Northern InJ4:na Mlic Serrice Com;wny (BaillyGeneratingStat on, the Board below did n AI.AB-207,7 AEC 957 (1974)(citations of authority omitted).
d withott damage saboteurs."
8'Both the pool and storage racks are designed to withstanDiablo Ca tyon vea.
('
earthquakes whose effects are twice as severe as those anticipatible in the d hould the As long as the fuel elements are in the racks no critical mass can be forme. '
il that storage racks co11 apse or the fuel c!cments be dislodged and fall into pre. se y ld I reclude its s'The expert witnes[
geometrical arrangement necessary to criticality, the borated p j
h l nt's piping drain and accomplished to achieve systems can dilute the pool water sufficiently to allow criticality;it has no bottot i lhf ility's fresh water would have to be dilutec the borated water can be removed only by pumping.Moreover,al t e ac f h water maximum of 2125 ppm, storage tanks are situated below the lesel of the fuel storage pool.The only res l ti n the fresh water sources a-piping systems above pool level are closed off by valves lo (Tr. fol. 850, pp. 6 9J. ;
3 ff Safety critical mass, would have.
absence of the necessary moderator. See Tr. fol. 850 (Lindl. lad);fol.11301 ta 3
Evaluation).
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I c.11isk to t!.e rublic from incidents of s:botag. For reasons expbined
.W
,. -.' g j:r, the Board it.structed the parties to try the cas, en the assump, ion that
[ t-gi z
g.cteurs would be able to enter the Diablo Canyon f cility and gain access to
. F ir -SM
,7
.,j,,e,tered nudear fuel elements. (See pp. 815 816,sy ). In essence, tids meant
,; EQ'l;
- 9 5'.
ge parties were required to address two principal ir Jes: first, the likelihood
- p.. ry --$
ld. p'.4 '
that saboteurs could use that fuel to start a chain reac. an(" achieve criticality")
{
r
- C-pd second,if they did so,what harm to,the public mi; it ensue.
l
\\hd h.
To this end the applicant proffered several expe t witnesses, including its j
[p %g
. : 3, engineering project manager (Mr. Lindblad) and an e: pert on radiation effects i
g
- g$y.y y
!y (pr. Brunot). The staff tendered four additional witnc ses,all with considerable niq h;w operience in nuclear power engineering. Of the sever witnesses in all, two held l
[
- [. ;p;cyM 13 earned doctorates in nuclear engineering;none was chdienged as to his technical j
j
$d gg
,ur e qualifications. De essence of their testimony was that it was virtually impossible
(
[ j. Eg'; g
- pl.,.g,
fot intruders to be able to establish criticality using the new fuel assemblies
{
! ;.qc :gg stored at Diablo Canyon but, even could they do so, that criticality would be of i mW[g p;ted, but momentary duration without significant conseque1ce for public safety.The f
' t. JQM
. thert intervenors offered no witnesses of their own, expert or otherwise. Their
[
fy y^.M
.ere to.
participation was limited solely to cross. examination of the other parties' ex.
- y. ps Q ;
lP. 4 y g iow to(
perts in an effort to weaken their testimony.
On the basis of the esidence adduced before it, te Ucensing Board found
,[' ( gg 2t the that formation of a critical mass out of the stored luel elements "would be g;f;;f.2; ist the extremely difficult," and that the likelihooJ of sabo :uis being able to do so, JM...
I..M.:.
criti:a!
though theoretically possible, was " remote." The Boa d did not elect to rest its 2
4. -
-A er chal.
decision authorizing the fuel storage license on this gr und, however. Rather it w
$.4m' c.nxg -
,s idente relied on its further finding that, even were saboteu i successfulin forming a 9.*2f-4 o.~w t
i
,ces s e critical mass from the nuclear fuel, the public wouk not be subjected to any
[ [
- jM in our unreasonable risk of harm.
(
.1 e.o -
. w.a o firm
- 1. Ukelihood of saboteurs forming a critical m:ss. On appeal, the inter.
M'.
venors do not question the Licensing Board's assessr.ent of the likelihood of l h.QM saboteurs being able to form a critical mass, apparem!y being of the view that t ?.y:?
even a " remote" possibility is sufficient cause for con :ern. On this point, there.
' diDtM
- th*'
d*** M' fore, we simply note that our independent review of the record confirms that
! $..N.N..
s the Board below did not underestimate the possibility of a successful effort by 7a
- p.i Q
[ E 42~ M on area.
saboteurs."
f lsuid the Q
- 1y tQ M(%;?"
plude ir I}%
I'FPN i
"The expert witnesses testified that several difficult s sps would first have to be
[ NC[.i'/M pain ud accomplished to achieve criticality. First, the boron content if the water in the fuel pool si.K.
h y water mould have to be diluted from its present concentration of 4550 parts per million to a 4y
.t
- g %n 7'b/t,%
.h wate' maximum of 2125 ppm,a process which would take at least 'our and one hal~ hours with
'cystion.
r(,c6,f.,'c.4h the fresh water sources available at the site (the pool volume.s almost 54,000 cubic feet.)
- pad'i 8 *I th' (Tr. fol. 850 pp. 6-9.). Then at least three fuel elements, thi minimum needed to form a I DI'4 critical mass, would have to be removed from the racks.(Tr.
- 038).These weigh about 3/4 I / ?_$.M (Foo note continued on next page)
^
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4 1
- 2. Con <equen, es of a critier.!!ry incident. The intersenon start frora t$
ID # ' '*
t.nexcepw t.r.Ne p mise that an applicant for a maten.Js license under PartN I'". S ^
"'"I must prose .it nr 2nreasonable risk of public harm is involved in grantingit 19rW20* F"* "
C.F.R.
@2.731 a 3 70.31 (d). The heart of intervenors' case is that this apg bottom et the fuel pm cant did not carry hat burden. In intervenors' view, the witnessesinadequate:
Rather, the new li hter analyzed the cons. luences of a criticality incident. The t
i oxide fM pcks @
they well may ha, underestimated the potential danger should such an ev 2
1 occur, through sabc age or otherwise.
et un be " burned" in a f
craniam es ermed b)
(a) To compt hend the testimony directed to this question-and inter.
i atinosphere, :hese fissior venors' criticism-it must first be understood that a state of critic:lity, or for Pfacess is ewemely sig that matter a supercritical power excursion, does not in and ofitself representa the focl is hdd at higl' serious risk to the i ublic at large as Research reactors, for example (Tr.1200 period of t.me.
h for years have ope sted continuously at power levels up to five me;;awatts $)
j contained by the zircon open pools (about 20 feet beneath the surface) and some of them have been 4
cladding will they be re deliberately put inte supercritical excursions (pulses) for experimental purpos es, absorb them. (As discu Operators and visit rs may look down upon these critical nuclear reactors t a
there will be no critica essentially no risk a themselves. We do not understand intervenors to suggest products produced whic:
(
otherwise. Rather, t,ieir brief focuses on the radioactive fission products which j
escapes from the water would be formed :I a result of a criticality incident and on whether those products are the sou ce of a potential safety hazard.a' large.
l (b) Applicant's ra6
}
likely results of a critica (Footnote continued fr m previous page)
(Tr. fol. 912). Ile elects of a ten apiece (Tr.10 1). Consequently the removal would have to be a:complished with e ntuyenors by compari crane dependent on of site electric power that would be availdte only on the assumption
{
Handling Accident ana, o
that the saboteurs rema :ned entirely undetected. (Tr. fol. 850 at p.12). Because the nuclear the Diablo Canyon facil:
fuel is only slightly er riched with 3.1% U.235, it will become critical only if the close fuel rods is carefully maintained by keeping a horizontal distance venors, that accident ass geometrical array of th between the fuel elem,nts of.3 inches (Tr. 861 and fol.1130 at p.13). This is why the radioactive fission prodU assemblies must be re:ioved from the racks, which maintain greater separation. (Ibid).
tjal conscquences of suc Finally, even were the equisite number of fuel elements placed in the proper geometrical 53 gg; J
IDC array for criticality inilally, steam pressure generated by that occurrence would disperv of guidelines accepted b them instantly, autom. tically ending the critical state (Tr. 1649, 1064). De witnesses testified that no bindir;s placed around the fuel elements would be sufficiently strong to g 15.4.6.
overcome the forces of fispersion (Tr.1059). Esen if the elements could be kept together, Dr. Brunot's approa the slender fuel pins th mselves would be twisted out of shape sufficiently to destroy theboth situations and the.
(d seometry absolutely ru essary to maintain the critical state (Tr.1064). As we noted, the reflect differences betwc intervenors neither offe ed contrary eddence of their own nor challenged the qualiGcationsincident. Utilizing thoE of the witnesses who so testified. In the circumstances, the Board's characterization of the likelihood of saboteurs !stablishing criticality with the stored fuel as " remote" was com-to fission products fron pelled by the record.
incident involving critic "To be sure, the ne atrcn and gamma radiation produced by a critical or super-criticalstored unused nuclear assembly if not shielded will present a hazard to indisiduals in the immediate vicinity. For directed) that they couk; the various scenarios co sidered at these hearinas, water shieldi,g was normally assumed to i
Dr. Brunot explame be present at least to ome degree and the only persons in the vicinity of any of the I
criticality sirustions exar sined would be the saboteurs.
" Joint Intervenors" rief, pp. 24.
f
]
"See Final Safety Anal) l 822 l
)
I.
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The answer to that question requires a b=ic und::st::nding of t!ie Wrn
.v
' der p."
hanism for fission produ:ts. When nudear fael elements "go critin!.' he
...r nu.h,1
[dicactive products created by the fission process do not precipitate out tc the gn
- g,.f.-
,c,ttom of the fuel pms m the manner of many famdiar chemical reactons.
,g g
',f
' g'/2
'pther, the new lighter elements are created, atom by atom, throughout the
- b.7; -byy.
ede gje fuel pellets (CO ). (It is to be remembered that although fuel elements N
2
,sen:.,d
.an be " burned" in a reactor for extended periods, the actual quantity of
,l; b., p[.,
f
.han
~
g2nium transformed by the fission is relatisely small.) To be released to the g ;=
posF ere, these fMion products must first diffuse out of the solid UO.Thir
[ gg:f h
2 Sndi..[,
process is extremely slow and takes place to any appreciable extent only when 3-2 t $5 ity. e epre[r ge fuel is held at high temperature (greater than 1000*F) for an extended j E. M:y'
{ p--M i
'eriod of time.3* Those fission products which diffuse out of the pellets are
-Tr. l t,,I 4-y py.3 '
centained by the zirconium cladding of the fuel pins;only upon failure of the
. 3. y.'T =b har. m
.a. dding will they be released into the water moderator, wideh itself tends to
- r. {.g-A.g s
gsorb them. (As discussed earlier, water must be present as a moderator or
- pu g.,
eaet:.:s,.
cere will be no criticality at all.) In sum, only that fraction of the fission
- j' F '-
n vg to sa
'rodacts prcduced which diffuses from the fuel pe!!ets, gets by the cladding and
- ts escapes from the water into the atmosphere can pose a threat to the public at j[,
q her e..w brse.
2 j [r
,,e m
.q,Q (b) Applicant's radiological expert, Dr. Brunot, addressed himself to the gely results of a criticality incident with the new fuel stored at Diablo Canyon.
g p,,,, [
(Tr. fol. 912). He elected to respond to the hypothetical situation suggested by lg ;b ;g intervenors by comparing it to the consequences erwisioned in the " Fuel
}
,3%3 '
ihndling Accident" analysed in the Final Safety Analysis Report ("FSAR") for g
? ']@
nm.m the eu, the Diablo Canyon facility. Like the hypothetical scenarios postulated by inter.
i.
" 4.
6 '""
I the d w venors, that accident assumes an incident in the fuel storage pool which releases I 4
,m.
k "I 6 284 radioactive fission products-albeit from spent rather than new fuel.The poten-
- ~
n sty e,
tial consequences of such an accident are explored in some detailin the FSAR, Q.y
,, g including whether such an event might expose the public to radiation in excess
,, g ~.y come.w MM.
M 6svrw of guidelines accepted by the Commission in the interests of safety. See FSAR I 4, N %;
(
- tac'-'
[15.4.6.
/"*4 "
Dr. Brunot's approach was to ascertain what he deemed the key factors in
' : Ch i
1,u e, i,,'
both situations and then to adjust those factors as he thought appropriate to s,y,.iy-
. iy:scr noteq reflect differences between the spent fuel accident and the postulated new fuel
[. t.Q
' y ?.
tW th!-v incident. Utilizing those figures,he then estimated the potential public exposure
' t i, -
I'"'bd to fission products from what, in applicant's judgment, was the most serious incident involving criticality which saboteurs might be able to create with the
- byN h'lH[g stored unused nuclear fuel, assuming arguendo (as the Licensing Board had
.crem,g h.
dam rar directed) that they could establish criticality.
oc t>
Wu Dr. Brunot explained that the quantity of fission products produced by an e
c ny of es I
~E..
m
- See Final Safety Analysis Report (FSAR), Chapter 11.1, and Tr.120$.
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i De 33 *d bckw fc incident of en..tieality was.kpeno.ent uis a C. t
,bei ua u tis c -
.ien sf a cm. ied mrs i cuned during the event. For purposes of.., N ', he n..m. M.nt e3-
, m:o.. : mcm a ment fi ri and deliberately chose the largest m.mber cf & ns v..cn nad ewr been r2-
'l. ;.nem"ded that sierage -
'c ported as occurring in a criticality accideat (w:..e 6 x 10i.3) cn wh ch to baseim the n e na h M w calculations. lie then estimated a dose fron. crMer.li'.y accidsnts based I
- E" comparison of the types of radioactive isotopes which would be present in (c) Although interv incident involving new fuel as distinct f.om a spent fuel accident. The propo..
by the Licensing Board tion of isotopes with long half. lives would be lager in the latter situation be.
have demed the apphc.
I cause a considerable part of those with short L2f-fives would already hav.
testim ny adduced by '
decayed. He then determined the portion of ti.c isotopes which would diffuse I P'*"##'
(escape) from the fuel and the cladding, and rJ. ;ted that Ogure to account fo$
- ~
calculau n f the total the effect of isotope absorption by the wuct :noderator and the filtratio pr duced in a saboteur.
system of the fuel:ssembly building to find that fraction of the fission products i, pr p ru nal t the nui which would actually reach the atmosphere. Finally, to arrise at the dose to 5
'el ted to the duration which a member of the public might be exposed, he reduced that fraction to l
Brunot s testimony tha take account of atmospheric dilution (i.e., redwtion ofisotopic concentration as arbitrary because it res-a result of dispersion by air currents) and radicactive decay which could be j
saboteurs would reces:
(
expected to take place between the release point of the isotopes and their travel
- 5"* that if the sabo through the atmosphere to the site beundary. Bwd on these considerations, Dr.
suf6ctent strength to Brunot testified that the result of a deliberately set criticality incident with ne v tended to allow a far gr, fuel"would be expected to cause potential ta liolcgical exposures approximately 5'I*""',I"I 600 times less than those following a spent fuel handling accident,"38 and be unchallenged qualificat "well below the guide line levels established (by the Commission] for design forces which would d basis accidents" and, therefore,"would not censitute an undue risk to the health incident" (i.e., a nucle and safety of the public."(Tr. fol.912 at p.10,949 53).
" strapping the asserr DrJilirons and hit. 51arotta testined for the staff that, although they did (in"millisec nds") or not perfonn the calculations independently, they did review Dr. Brunot's 1074 75,1097). Eith procedures and computations. In their judgment, Dr. Brunot's methodology was rem val f the critical acceptable and his results " conservative." In other words, the staff's npert wit.
P. 819, $Pra.) Inter nesses expressed the view that if there were any error in Dr. Brunut's conclu.
tinding the assemblis sions, it was that he had overestimated rather than underestimated the serious, they posed to expert ness of a criticality incident with new fuel.(Tr. I146-1151).
courts have ruled, "'
dence. It should be a-the record and can 0
(
H The Fuel Handling Accident consequences were reported for spent fuel in the FSAR hiinberger, 514 F.2 at Table 15.4-81, surnrnarized as follows:
decision which relica Site Low Pop.
NRC Guidelines Consequently, the B Bound.
Zone (10 CFR Part 100)
Whole Body Dose tRDt) 2.5 0.t0 25 Thyroid Dose (RBO lt.t 0.46 300 824.
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manner described wuld pox nu unttisonable tisk to the health and safety
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f j. 22M
' b*2t! -
(c) Although intersenors proffered no evidence contrary to that relied upon L &.1 @
f#'t l' 4 w the Licensing Boa.d. they nevertheless argue on appeal that Board should l1;,j.p 4
."' II'Ft.
hve denied the cppF:cen for the materials license. Their thesis is that the h
ff rests on faulty hj.y.Q
- D ?.
t testimony adduced by the applicant and supported by t e sta p t.
.l. M
'fN gemises and should have been rejected.Their first peint ch:dlenges Dr. Brunot's F
L,,.' Q $'
U' :e 21culation of the total qantity of radioactive fission products which might be fP. Ct{
- h
-roduced in a saboter....duced critiedity. Hey do not dispute that the totalis U4%
poportional to the ns.ier of fissions which take place and that thisin turnis f hf-;.
h Dr.
g!sted to the duratien of the critical state. What they do contend is t at r ; QG.s.M
- D 3runot's testimony that the maximum number of fissions would be 6 x 10"is t
g
[,ggr
- b. M-->
D a:bitrary because it rests cn his assumption that any critical state established by i
....ra:.. "
t ei.
l saboteurs would i.ec::sa:i!y be transitory. (Tr. 934 35; 1064). The intersenors
. UM 3
,.ssert that if the sabattu.s strapped the fuel elements together with bonds of
.5 4
f.ag~fp 1
[ionsDe
- * ~ '
ufficient strength to present their disruption, the critical state could be ex-d
. m?.w.s i t w;.g -
tended to allow a far greater number of fissions than Dr. Brunot predicte.
. g :f
.oxi:~.re.Y This claim is refeted by the uncontradicted expert evidence. Witnesses with
'pg
.. + -
unchallenged qualifiestions in the field of nuclear engineering testified that the n aa,! y for y forces which would Jew!cp immediately upon the occurrence of a " criticality
, L, gisg
- l. -;y incident"(Lc., a nudear excursion) would be of such magnitude that no form of l T)'l[.
the he
" Strapping" the assemblies together could prevent their !mmediate disassembly 1060 65, i
1 thev,a (in " milliseconds") or preclude extreme distortion of the fuel pins.(Tr.
41
, Bru.%tg 1074 75, 1097). Either consequence would promptly terminate criticahty by
[ EMPd lolo y y removal of the criti:al mass or destruction the necessary spacing of the pins.(see
[ M{s p
Q
- p. 819, supra.) Inter enors' assertion that criticality could be maintained by r.Q i
.xpert us.
binding the assemblies was no more than an unsupported hypothetical which t*s e%.
f [.f(
4
~y they posed to expert witnesses and which those witnesses flatly rejected. As the
{
ye se.iy.
/ ;t' courts have ruled, "[i]t is axiomatic that a hypothetical question is not evi-e,'y dence. It should be an accurate summation of the evidence already presented in f
7 %(jf f
(
the record and can neither add to not detract from that evidence.".tf ers v. -
{ p j'.g i
i the g y Weinberger. 514 F.2d 293,294 (6th Cir.1975)(overtuming an administrative j-t l
decision which relied on hypotheses unsupported by evidence in the record.).
7;M..v.s Consequently, the Board below may not be faulted for crediting expert testi-4 %g-
.9.p
'E""
r 100) l.i4T;Q.
- NNAi l
l ea :g.
j
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- Licensing Board Order of Decernber 23.1975. rp.10-11.
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ns eser a mete hypetbis dnoid of evident desages essentia:ly to rpp'rt?-
wculd have accumulat (d) ' nenenots iso criticize the testimony, credited by the Board beln its extended use, whil etpe tin; the r.ite at dich radioactive fhsion products wculd be release criticality and accum the new fuel and cladding in the event of an excursion incider.t. For reasons Brunot supperted his need not rehearse in detail here, Dr. Brunot testified that,given the new the "SPERT" analysis
+
brev;ty ef the criticality excurs;on, a release of about 1/100th of the arnount o As before,interve radioactive isutopes would occur in the postuled incident as compared wim their own. Ecy sing re!cr.se of such products in an accident with spent fuel. This, cornbined sig argument on this poir other factors (dispersion and decay), would in his judynent result in an indi.
I the SPERT tests are t vidual d,se at the site boundary of 1/600th that which would cecur frorn me carlier. See fn. 33, su, "Fael !!mdling Accident" analysed in tbc FSAR, which itself is within per.
testimony to evaluati missible Commission guidelines." lie attributed the overall difference in
- *
- to ascertain or i bound and restrained complaint was given "Our own review of the record convinces us that Dr. Brunot's fi uie (6 x 1019 g
fissior.s) critical event. See fn.
/
is not too low but too high. Esen were it poWMc to Lind seseral DiaNo Can>un f ei What intervenors assemblies tvgether and operate them as a natural consectionoMed pool-type re;c*cr,at a gM M bin steady peser of I rnegawatt the assemNy would need 30 minutes to produce 6 x 1019 Operated at its rated fissions. Bat our own experience is that steady-state reactor operation requires extens.ve instrurnentation and claborate controls. These sirr. ply could not be set up in a few hours. w j
the diffusion of the e
agree, therefore, that assuming a guendo that saboteurs could achieve critic:Jity by bint g ceramic fuel pellets-nudcar fuel assemNies together and putting them b:ck in the fuel storage pool (or the i
fission process ever d ocean), what would fellow (if anything) would be a sudden escursion, of which mere bons 11.12 and 3). A fo.
wu!d net present almcst mstantaneous disassembly and immediate cessatwn of criticaMy, those likely to be as Dr. Brunot's use of 6 x 10 ' Gssions is the resalt of its being the lagest salue listed in a 3
by intervenors (assut t.,Ne of reactor criticality accidents. See, Thn pson and Beckerty, Rearor Safety hcA.
nology, Vol.1, Ch.11, pp. 616-17, Table 3.1. But ae accident from which this result was
{
extended period of 0 derised was not of the sudden excursion type. Rather, it involved a relatively lone i
operation of interven (70-second) power operation in a cooled reactor. In our judgment, the results of certain
(
fission prohs wd "SPERT' escursion tests (also reported in nompson and Beckerly, op. cir. supra. pp.
684 85) are closer to the situation intervenors postulate. In these tests, control rods me e Dr. Brunot's values forcibly ejected from the reactor system, prodding a step increase in the multiplicatan excursion incident wi constant (k,gg) bey ond unity and a ugid, transient super criticality which resulted in a total (e) Lastly, inten e
1 number of fhsions of about 5.5 x 10. (See Tr. fol. 912 at p. 6-3). We consider this figure a of the fission produc more reasonable upper bound on the number of Ossions to be anticipated from an excursion with a slight'v enriched 00 fuel system such as the one at Diablo Canyon.
could not affect the 1
( '
2 Intervenors etn. plain that siifferences between the tested system and the Diablo fuel the fuel building an intervenors do not d make it inappropriate to use SPERT data. According to staff witness, however, these terts g
provide the best experimental or analy ticalinformation availaue and,in fact,are as close to t.
neutralized. Rather, a representation of the poorly epecified " sabotage eriticality"as one might hope to achien.
Tests on faulty prem.
(Tr.1149-50). De key determining parameters in the SPERT tests are similar to those assumed that the sal fuel and a water rnoderator.
present at the Diablo Canyon facility,i.e., low enriched UO2 the fuel pool under Differences between the test fact and the DiaNo fuel such as fuel pin size, spacing, and t3 pc of claddir.g material, would ha<e little effect on the tots! Gssion yield. We therefore gee filter sy stem. Rey al with the staff that, on this issue, Dr. Brunot's Ggures are consenative.
reduction factor for
'* See fn. 31,IhPro-than that applicable t i
I 82G t
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, y a. r,tdly tc t'u g;mer : naunt of undec:yed firvon prt acts which
. id h.cc :.c a: u':td in ad v.ou!J tc relemd from the spent fuc because of i ; '.; J its c.terhd use, v. hilt t!.c rmw f..el would hase experienced but a i :ief state of
%2'j 4.
critkanty and ac.;umulated correspondingly fewer such fission r oducts. Dr.
,l C*
M ft:-,'
Brunot supported his testimony with seferences to experimental d: 1, inter alia, 3 p.
3,N. M
!1 N.i.
j
[-C.]
the "SPERT" analysis.(Tr. fol.912 at 6 8,950-51).
?]g.k ;
As before,intervenors' objections are not based on any contrari evidence of
(%;nt e.r g
u m
( :g their own. They simply disagree with Dr. Brunot's conclusions. F ich of their j j g
e p... a
- rgament on ilus point is directed at disputing that the experimen 11 results of
} p._gg r,
gn in.,.
the SPERT tests are appropriate for Diablo fuel,a contention whic! we rejected 1.
- q. --;-
$ b g.@;j 6 W earlier. See fn. 33, supra. Intervenors again complain that Dr. Brum t limited his t
Mn p.
testimony to evaluating a criticality of a transient nature and mau'e "no effort 1 I [ ;.gj k i e..;g e:se,
- *
- to ascertain or even suggest the consequer.ces of a criticality ( :curringin a
,.4.,.J3 bound and restrained fuel assembly bundle."(Br.p.4.)The short a iswer to this i
complaint was gisen earlier; such restraints could not effectively prolong any 1
{ t y:.Wpp "M
,b'Me ' j'g~
% :.9 critical event. See fn. 27, supra.
Fon f !
What intervenors apparently have not appreciated is that the n ost effective
! I ". J.I':
'a w'r '
retardant of fission products is the UO fuel itself. Even when a reactor is i
M.-a 2
operated at its rated power-and the high temperatures there devel ped enhance j~ )7. *,, qjh 3,,.,g the diffusion of the indisidual atoms of the various fission prodi :ts from the
- *. TM oun se bW ceramic fuel pellets-only a small fraction of the radioisotopes ct
- sted by the IQN K.Nen f ' !!*
fission process ever diffuses out of the fuel. (Tr. fol. 912 at 8,Tr.1205, FSAR
-- 4 t
'3 rge tw 11.12 and 3). A fortiori, under conditions of " excursive critica ity" such as
, g g:'.7;j
[ pyg(22 those hkely to be associated with the hypothetical acts of sabota.e postulated
.ted u h - ] *
? T<d.
by interrenors (assuming any criticality at all), or for that matt :r under the
-C
d'
- As extended period of criticality at a steady state, lower power, low temperature g
operation of intervenors' alternate hypothesis, an even smaller frat tion of those 3N e
- 3*
s t.M. %.. ~.d'.~7 t emun fission products would escape. (Tr. 1204 05). We therefore accept is reasonable P'8. rp.
g' 9
- i. q,'g ies uc.e Dr. Brunot's values regarding the rate of isotopic release in the event of an t
I i[.MD*
- cation excursion incident with new fuel.
n a ccW (e) 1.astly,intervenors challenge Dr. Brunot's computation of that fraction
[ ]k ON@
),,"
of the fission products which, though released from the nuclear fu 1,necessarily could not affect the public because absorbed by the water moderat 3r, trapped in j, u-}..j 3.,M,Q
[ Q[' ^
bio fu,-
the fuel building and its filter system or diluted by atmospher c dispersion.
T.f.3 t
vse td Intervenors do not deny that some portion of those fission produc s will be thus v
dme to neutralized. Rather, they claim that Dr. Brunot's computation of that fraction
{ [,JLQ rests on faulty premises. In particular,intervenors contend that ht unjustifiably assumed that the saboteurs would necessarily create any criticali y incident in i g.
ind t> pe the fuel pool under 23 feet of water and would not be able to s' tut down the
(* Q W M resp:e filter system.They also claim there to be no foundation for Dr. Brt not's use of a
.WMM reduction factor for atmospheric dilution and downwind decay si> times greater YP,M9M than that applicable to the spent fuel accident analyzed in the FSAL
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These cr ticisms are r:ot well 'ounded. First, for re, sons -redoasly ex.
i eners s.ere pre gb ved. 'he pre:,ence of w ater is in i.put;.bly recc sary to ac!.iese critica'ity.38 e
far from the Ikt ater dso absorbs fi:rn prot icts. The Bc.ard LJow found that the crjy e
- al then practied) remotely " credible of eddence and n.
po"iti'ity (:,nd this mon.
core sa%teurs fenning a critier.! mass v h the rtcred fu:1 required them to make use the euJence 12:.d Sics, Inc., 391 F.
of the 40 foot decp fuel storage p,1." Esen assuming that saboteurs were able I
at best unfair an to establish criticality by reassemt' ng fuel elements atop theroelstorage racks, i
Accordingly, the. -
s the rack tops are 23 feet under w; er (Tr.1069),the figure used by Dr. Brunot respect, the errort in his calcuhtions.
case, were harmle Secend, it is simply incorrect t at Dr. Brunot assumed that the fuel building tilter sy> tem would be operating; t? e record reflects that he also made allowance for the possibility that it might t til. (See. Tr. fol. 912 at p. 9). Final!y, the For the re:.s reason the reduction factor for atmospheric dilution and downwerd decay is Licensing Board is pester in the case of an incident ith new (unused) fuel than with spent (used) it is so ORDF fuel lies in the nature of the fissi n products coupled with each. As explained carlier, a much larger proportion of fission products having short half-lives are associated with the former than s ith the latter. A portion of those short-lived products naturally decays during te time required for them to travel downwind from tNir point of release into Oe atmosphere to the site boundary. (See p.
824, srgra, and Tr. I 149).
Moreover, even were this ret action factor assumed to be identical in the case of both new and spent fuel,'t would hold no significance for this case.The potential public exposure to rat stion at the site boundary as a result of a criticality incident with new fuel.vould still be less by a factor of 100 than that calcu!ated in the FSAR for the [5,ent] Fuel llandling Accident. Such exposures fall wc!! within the Commission's afety guidelines."
111 We cannot close this opini< n without at leasi a brief comment on the Licensing Board's handling of h jothetical questions. The Board permitted the 3
intervenors, over timely objectio s, to pose hypothetical questions to applicant and staff witnesses which a:su ned facts unsupported by evidence, if not contrary to it." We agree that tie appropriateness of a hypothetical questionis
' ' See p. 819, supra, and Tr. 857. 157.
s.
" Order of December 23,1975. p. 9. De expert witnesses considered att the other hypotheses suggested by intervenors, including the one that saboteurs might transport the fuel ele-nents to the ocean) as "incrt dible." (See e.g.. Tr. 904). No contrary esidence was offered by mtervenors. Gisen the g eat weight of the individual fuel assemblies and the consequent need to maneuver them Jy crane, we can not fault the Board's finding in tlus respect. See (n. 27, supra.
'See p. 824, supra.
" See, e.g., Tr. 91617 A,10t S.2.,1070 74.
828 8
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, nutter largely for the trial board's discrttion. B'it,everi recogitzing that inter.
nors v.cre pn ceding without ccanel,we think the Baard belew departed too e.
.2 ;
-,.1-;c f far frem the ";eneral rule * *
- that a hypothetical should rencin wiSin the
,}t esidence and i !!ude only such facts as are supported by the esi&nce or which
. _. g.
3
,.= 3pl the evidence nds to prove." Gand hiand Grain Co. v. Reusir.11obac Home f
Sales, Inc., 39: F. 2d 35,41 (Sth Cir.1968)(Blackmun, J.). Such departures are f-y ;
i
~
j g'
at best unfair and at worst lead to a mideading and unsatisfactory record.
- q f.1. Q j
> r-N 2i
, g*
Accordingly, : iey should be asoided. Assuming that the Board erred in this 3
li j
respect, the e: oss were in intervenors' favor and, given our disposition of the i ?:qG' =
I
- -~,.
e-r D0t p
e. J, 6 b l case,were han.less,
, _. e L M,( n.$ l i
4
~-.%:
.
- 2.,%
4 1
.the
- enf For the :asons developed in the foregoing opinion, the decision of the
'g 5'effi.
y Licensing Boai iis affinnaf.
i 3,3)
I I F.3."~.M j
it is so ORDERED.
ned FOR TIIE ATOMIC SAFETY AND 8P t $.99%,':
- " W.
, are LICENSING APPEAL BOARD
- r :- :-p; e
hed 3 ' ig.
F t.
- C '
'g j
.-ind Margaret E. Du Ro
, 3 4 '.
, g" ','
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D For the reasons deseloPed in the foregoing opiidon, the cecision of the f.
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"I It is so ORDERED.
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-..et a-d FOR Tile ATOMIC SAFETY AND
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re LICENSING APPEA' BOARD i
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Margaret E. Du Flo 2.-
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Secretary to the Appal roard
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