ML20083D503

Nuclear Regulatory Commission Issuances.July 1983.Pages 1-155

ML20083D503
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Issue date:	07/31/1983
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V18-N01, NUREG-750, NUREG-750-V18-N1, NUDOCS 8312280077
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O Available from NRC/GPO Sales Program Superintendent of Documents Government Printing Office Washington, D.C. 20402 A year's subscription consists of 12 softbound issues, 4 indexes, and 2 hardbound editions for this publication.

Single copies of this publication are available from National Technical information Service, Springfield, VA 22161 Microfiche of single copies are available from NRC/GPO Sales Program Washington, D.C. 20655 I

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Errors in this publication may be reported to Vicki E. Yanez, Division of Technical Information and Document Control, Office of Administration, l

U.S. Nuclear Regulatory Commission, Washington, D.C. 20565 l

(301/492 8925) l l

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NUREG-0750 Vo!.18, No.1 Pages 1-155 NUCLEAR REGULATORY COMMISSION ISSUANCES July 1983 This report includes the issuances received during the spec.fied period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dent legal significance.

U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Technical Information and Document Control, j

Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (301/492 4 925) l

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l COMMISSIONERS Nunzio J. Palladino, Chairman i

Victor Gilinsky Thomas M. Roberts James K. Asselstine Alan S. Rosenthal, Chairman, Atomic S1fety and Licensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety and Licensing Board Panel i

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CONTENTS Issuances of the Nuclear Re:tulatory Commission l

GENERAL PUBLIC UTILITIES (Three Mile Island Nuclear Staticn, Units I and 2)

Dockets 50-289,50 320 (Civil Penalty)

STATEMENT OF Tile COMMISSION, CL1-83-20. July 22,1983.

I Issuances of the Atomic Safet> and Licensing Appeal Boards COMMONWEALTH EDISON COMPANY (Byron Nuclear Power Station, Units I and 2)

Dockets STN 50-454-OL, STN 50-455-OL MEMORANDUM AND ORDER, ALAB-735, July 27,1983.

19 DAIRYLAND POWER COOPERATIVE (La Crosse Boiling Water Reactor)

Docket 50-409 DECISION, ALAB-733, July 13,1983.

9 PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, ci al.

(Seabrook Station Units I and 2)

Dockets 50-443-OL, 50-444-OL MEMORANDUM AND ORDER, ALAB-734, July 19,1983.

11 Issuances of the Atomic Safet> and Licensing Boards ARIZONA PUBLIC SERVICE COMPANY, et al.

(Palo Verde Nuclear Generating Station, Units 2 and 3)

Dockets STN 50-529 0L, STN 50-530-OL (ASLBP No. 80-447-01-OL) l MEMORANDUM AND ORDER, LBP-83-36, July 11,1983.

45 CLEVELAND ELECTRIC ILLUMINATING COMPANY, ci al.

(Perry Nuclear Power Plant, Units I and 2)

Dockets 50-440-OL, 50-441-OL MEMOR ANDUM AND ORDER, LBP-83-38, July 12,1983.

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COMMONWEALTil EDISON COMPANY (Byron Nuclear Power Station, Units : and 2)

Dockets STN 50-454-OL, STN 50-455-OL

( ASLBP No. 79-411-04-PE)

MEMOR ANDUM AND ORDER, LBP-83-41, July 22,1983.

104 COMMONWEALTH EDISON COMPANY

_tityron Nuclear Power Station, Units I and 2)

Dockets STN 50-454-OL, STN 50-455-OL (ASLBP No.79-411 04-PE)

MEMORANDUM AND ORDER DENYING STAY APPLICATION, LBP-83-40, July 26,1983.

93 ilOUSTON LIGHTING AND POWER COMPANY, et al.

(South Texas Project, Units I and 2)

Dockets STN 50-498-OL, STN 50-499-OL (ASLBP No. 79-421-07-OL)

MEMOR ANDUM AND ORDER, LBP-83-37, July 14,1983.

52 LONG ISLAND LIGliTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket 50-322-OL-3 (Emergency Planning Proceeding)

MEMORANDUM AND ORDER, LBP-83-42, July 28,1983.

112 PillLADELPlilA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2)

Dockets 50-352-OL, 50-353-OL SECOND SPECIAL PREllEARING CONFERENCE ORDER, LBP-83-39, July 26,1983..

67 TEX AS UTILITIES GENERATING COMPANY, et al.

(Comanche Peak Steam Electric Station, Units I and 2)

Dockets 50-445,50-446 (Application for Operating License)

MEMORANDUM AND ORDER, LBP-83-33, July 6,1983.

27 TEXAS UTILITIES GENERATING COMPANY, ci al.

(Comanche Peak Steam Electric Station, Units I and 2)

Dockets 50-445,50-446 ( Application for Operating License)

MEMOR ANDUM AND ORDER, LBP-83-34, July 6,1983.

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I TEXAS UTILITIES GENERATING COMPANY, et al.

(Comanche Peak Steam Electric Station, Units I and 2)

Dockets 50 445,50-446 ( Appl; cation for Operating License)

MEMORANDUM, LBP-83-35, July 6,1983.

40 TEXAS UTILITIES GENERATING COMPANY, et al.

(Comanche Peak Steam Electric Station, Units 1 and 2)

Dockets 50-445-OL, 50-446-OL (ASLBP No. 79-430-060)

PROPOSED INITIAL DECISION, LBP-83 43, July 29,1983 122 i

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Commission Issuances l

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Cite as 18 NRC 1 (1983)

CLI 83 20 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Nunzio J. Palladino, Chairman Victor Gilinsky Thomas M. Roberts James K. Asselstine in the Matter of Docket Nos. 50 289 50-320 (Civil Penalty)

GENERAL PUDLIC UTILITIES (Three Mlle Island Nuclear Station, Units 1 and 2 July 22,1983 i

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The Commission authorizes the NRC staff to issue a Notice of Viola-tion and Proposed Imposition of Civil Penalties against the Licensee for its (1) material false statements concerning the qualiGeations of an indi-vidual operator and (2) failure to properly implement its operator re-training program.

STATEMENT OF THE COMMISSION The Executive Director for Operations has recommended to us that civil penalties be proposed for imposition against the Licensee: Grst, in the amount of $40,000, for the Licensee's failure to properly implement its Operator Accelerated Retraining Program, and second, in the amount of $100,000, for material false statements associated with an August 3,1979 letter to the Commission certifying a particular individu-l al's satisfactory completion of an accelerated requalincation program and with a November 15, 1979 application by the individual for renewal of i

his Senior Operator License. The Commission has approved the recom-1 l

mum mendation and has authorized the staff to issue a Notice of Viola: ion and Proposed Imposition of Civil Penalties.

The dissentini; views of Commissioner Roberts are attached.

For the Comi. ission SAMUEL J. ClllLK Secretary of the Commission Dated at Washington, D.C.,

the 22nd day of July,1983.

DISSENTING VIEW OF COMMISSIONER TIIOMAS M. ROBERTS On Friday, July 15, the Commission authorized the Staff to propose on General imposition of a civil penalty in the amount of $140,000 Public tJtilities (Licensee). This penalty is comprised of two parts:

(1) $40,000 for failure to implement properly the Licensee's Oper-ator Accelerated Retraining Program (OARP). This program was established by Licensee in response to the Commission's August 9,1979 Order.10 NRC 141,144 (1979).

for material false statements related to the certifica-(2) $100,000 tion by the Station Manager of Operator VV as having satisfac-torily completed the requalification program.

l As I believe the underlying basis of each of these penalties is significant-ly flawed,I dissented from the Commission's action.

I do not support the $40,000 penalty because I do not believe the Commission has the legal authority to impose it. The program under-taken by Licensee was voluntary; it was not required by any statute, regulation, order, or license condition. In efTect, the Commission is penalizing Licensee for inadequate implementation of a voluntary commitment. Although I do not condone cl eating, I believe imposition of a civil penalty for a voluntary commitmeat exceeds the Commissio authority.

With regard to the $100,000 penalty, while I agree that material false statements were made to the NRC in a 1979 application for a senior reac-tor operator license, I do not believe the Commission may use statutory authority not in'elTect in 1979 to impose a higher penalty.

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I The Commission justifies use of the statutcry authority granted to the NRC in June 1980 by saying that willful material false statements are continuing violations. The Commission's theory is that in 1979 Licensee and VV made willful material false statements in that they knew at the time the statements were made that they were incomplete.

The Commission believes that, in light of this willfulness, the Licensee was under a duty every day after its submission of material false state-ments to correct these statements and that this duty continued in effect up to and after June 30,1980 when Section 234 of the Atomic Energy l

Act was amended to permit the imposition of higher penalties. This con-clusion that a material false statement can be a " continuing violation" is viewed merely as an extension of the rationale in l'irginia Elecnic and Power Co. (North Anna Power Station Units I and 2), CLI-76-22, 4 NRC 480 (1976) (omissions may be material false statements).

l Other Federal agencies have attempted to treat material false state-ments and reporting failures as continuing violations in order to increase the size of the penalty levied. These efforts have been rejected by the courts. Thus, I do not believe the Commission's theory is legally correct or proper. My analysis of the flaws in these proposed penalties follows.

l FACTUAL BACKGROUND AND LEGAL ANALYSIS OF

$40,000 PENALTY In the course of its evaluation of the accident at Three Mile Island i

Unit 2, the Commission identified concerns which led it to order that Unit I remain in a cold shutdown condition. The Commission decided that a hearing would be conducted prior to restart of this unit. In an August 9,1979 Order which made that shutdown etTective immediately, the Commission listed the subjects to be litigated in that hearing. It also stated that satisfactory completion of certain short-term actions and rea-sonable progress toward completion of certain long-term actions was re-quired prior to restart. One of the short-term actions involved the recommendation of the Director of Nuclear Reactor Regulation (NRR) that the Licensee augment the retraining of all Reactor Operators and Senior Reactor Operators assigned to the control room including training in the areas of natural circulation and small break loss of coolant l

accidents, that all operators receive training at the B&W simulator on the TMI-2 accident, and that the Licensee conduct a 100% reexamina-tion of all operators in these areas.10 NRC 141,144. The Commission's Order further explained that those short-term and long-term actions to be considered " required" were those dekrmined by the Commission, 3

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after review of the Licensing Board's decision, to be necessary and suffi-cient to provide adequate protection of the public health and safety.10 NRC 141,146. Thus, i: is quite clear that this Order did not impose any requirements but rather prescribed a. procedure whereby requirements for restart would be determined and imposed.

On September 12, 1979, Licensee voluntarily committed to establish an Operator Accelerated Retraining Program (OARP) to accomplish the training outlined in the Commission's Auguss 9 Order. During the hear-ing prescribed by the Commission, allegations were made that Licensee employees cheated on both Licensee-and NRC-administered exams.

The Hearing Board appointed a Special Master to develop a factual record on these allegations. Both the Special Master's Report and the Board's decision concluded that G,11, O, W, and GG cheated on Licensee-administered tests in addition, both the Special Master and the Board criticized the Licensee's OARP and suggested that deliciencies in it created an atmosphere in which cheating could occur. It is these findings that have brought about the proposed $40,000 penalty. While i do not condone cheating, the cheating occurred on tests that Licensee volunteered to give. Only NRC-imposed requirements are enforceable by the NRC. Thus, I believe the Commissioa exceeded its authority when it authorized imposition of a civil penalty for failure to implement a voluntary commitment.

FACTUAL BACKGROUND REGARDING Tile MATERIAL FALSE STATEMENT l

l Section 55.33 of the Commission's rules requires that each licensed in-dividual demonstrate his continued competence every tv.o years in order for his license to be renewed. Competence may be demonstrated by satisfactory comp!ction of a requalification program which has been reviewed and approved by the NRC. During the 1978-1979 requalilica-j 1

tion year, VV, a senior reactor operator, was found delicient in four areas of training and was enrolled in the Fundamentals and Systems Review (FSR) Program for retraining in these areas. On July 2,1979, he turned in completed take-home tests for each of the four areas. Parts of two of the tests were submitted in someone else's handwriting. VV's scores on the section, and the handwriting found on each are as follows:

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SECTION SCORE II ANDWRITING A

89.1%

VV and O E

75.6 VV G

80.5 VV 11 64.0 VV and O Licensee's administrative procedures require that an individual be relieved of his licensed duties and enter an accelerated requalification program ( ARP) if that individual receives a grade ofless than 80% oser-all or less than 70% on any section on the annual examination. Upon successfull) passing a second written or oral examination and certifica-tion of satisfactory rating by the director of Three hfile Island Unit I, the individual will be returned to licensed duties. Thus, in accordance with this procedure, VV was enrolled full time in an ARP to be retrained and retested.

On August 3,1979, the Station blanager certilled to the NRC that VV had received a satisfactory rating based upon his completion of an accel-erated requalification program in which he had achieved a score of 99.8.

After citing the scores VV had received in the four areas of the FSR as shown above, the Station blanager further stated that the specially tail-ored ARP was instituted because VV received two scores less than 80%.

lie did not mention the handwriting discrepancy, the fact that one of the sections for which VV received a score greater than 80% was completed at least in part in another person's handwriting, or the fact that he had directed that VV be retrained on this section.

On November 15, 1979, VV submitted to the NRC an application for renewal of his senior operator license. That arplication included the statement that he had " satisfactorily completed the hietropolitan Edison Company Operator Requalification Program."

ANALYSIS l

The statements that (1) VV had received scores of 89.1, 75.6. 80.5 and 64.0 on the FSR, (2) that VV had received two scores less than 80%, and (3) that VV had satisfactorily completed the operator requal-ilication program were made in 1979. At that time, Section 234 of the AEA provided that the maximum civil penalty that could be imposed for a single violation was 55,000 per day and $25,000 for all violations occurring within a thirty day period. EITective Ju' e 30, 1980, how es er, n

Section 234 was amended to provide for much larger cisil penalties, up 5

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to S100,000 per violation per day. As noted earlier, the Staff has concluded, with Commission concurrence, that Licensee's provision of material false statements was willful and that this willfulness gives rise to a duty on the part of Licensee to correct the statements.' This duty to correct persists until Licensee corrects the statements or the NRC dis-covers their falsity. As the Licensee did not fulfill this duty to correct, a continuing violation has been committed and a larger penalty may be levied under the amended Section 234.

There has been no interpretation of the phrase " continuing violation" under Section 234 of the AEA, The concept is not uncommon, however, and other government agencies have attempted to use the con-cept to increase the size of civil penalties in cases similar to that at issue here. These elTorts have not met with success in the courts. A limited sampling of those cases follows.

In a case under the Communications Act.2 the FCC attempted to exact a civil forfeiture for a licensee's " continued" failure to adhere to ihe FCC's " personal attack" rule. United States v. WITN Radio Inc.,614 F.2d 495 (5th Cir.1980). In rejecting the FCC's interpretation, the court held:

In a continuous uolation, hke those noted above, there exists a continuing or persis-tent legal duty that the uotator steaddy fails to fuGil. In the instant case, there was but a single, pointed duty, admitting of (mly a single derchetion. The broadcast of the arguable pery>nal attack gase rise to a discreet duty under section 73.123(a), to transmit "within a reasonable time and in no esent later than one week after the attack" (1) notification of the attack. (2) a script or tape, and (3) an offer of oppor-tunity to respond over the hcensee's facihties. When in such a situation the pres-cribed period passes without the broadcaster hasing made the required osertures, a dereliction of this duty, and therefore a siotation, occurs at that point. Though the ct/ar of this failure to act within the prescribed period persists, the violation itself I

cannot be said to " occur" cach da) thereafter within the meaning of section 503(hMI). Consersely. esen if the broadcaster acts after the prescribed period to ameliorate the c//ars of his derchetion by transmitting what might earher h.ise been a satisfactor) notilication and offer of opportunity to respond, such an oscriure can hase no elTect on the fact of the siolation.

614 F.2d at 497.

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I In this caw the statements made by the sianon Manager m his ceridkaison of VV mere true. The uola-tion of haung made material fahe statements arnes from the f4 dure of the sianon Manager to proude additional inrormanon such as the fact that VV theated on the FSR The fourth Circuit has held shal the prowrapunn in sesuon 186 against materwl f.she slaiements entends to ommons as meal as to af-firmaine slaiements ll ss aho important to note that NRC regulations do not require thai 4 Lwensee inform the NRC on whe6h areas an mdaid"A aaa'ator must be retessed All materi.at statements in an applwauon should. homeser. be true 247 U s c. 503t bHil 6

I Simi!arly, in a prosecution under 18 U.S.C.1001 (the law which imposes criminal penalties for material false statements made to the l

federal government), the prosecution charged a conspiracy to make l

false, fictitious, and fraudulent statements as to material facts in a matter within the jurisdiction of the Department of Labor. Unire:/ States

v. Davis,533 F.2d 921 (5th Cir.1976). The defendants made false state-ments in a contract proposal which was submitted on August 13,1969 arJ was accepted by DOL on September 8,1969. An indictment was re-turned on September 5,1974. The government charged that overt acts in furtherance of the conspiracy had occurred within the five year period before the date of the indictment. On appeal the court found the prose-cution barred by the live-year statute oflimitations:

Although the contract itself was signed by representatives of IDOLI on September 8,1969. any inducement of that action by the appellants occurred when the false statements and the representations were submitted to the Department on or prior to August 13.1969. Indeed, the Umted States Attorney conceded that the appellants submitted the contract proposal to the Department prior to September 8.1969 and that the gosernment was unaware of any speciGc act by the appe!!arits on September 8, I969. Thefact shar the appellants newr torrc< red theJolse svarements < untamed m the contrat I proposal does not make the consparmy < harged m the mdniment a < onturuntx one, and thereby es,tnd the statute oflimitations. Neither was the hmitation period ex.

tended becaun (DOLI rehed upon the falsiGcations within 0,c years prior to the return of the indictment. The conspiracy charged in this indictment had run its course with the submission of the false statements to lhe Department on August 13, l%9. and the subsequent issuance of the contract by the Department in rehance on the falsincat ons was not for purposes of the statute of hmitations an osert act in i

furtherance of the conspiracy.

533 F.2d at 928 (emphasis added; footnotes and citations omitted).

In yet another case interpreting the phrase " continuing violation," the Supreme Court held:

The emphasis shot.ld not be placed on mere continuity lof impact fron. 'he act of discriminationi; the critical question is w hether any present reformn exists I

United Airlines. /nc. v. Evans, 431 U.S. 553, 558 (1977) (emphasis in original).

The key element then of a continuing violation is a continuing or per-sistent legal duty. The cases stress that emphasis should not be placed on the mere continuity of the elTect or impact of the violation but on whether, once a false statement has been made, a new duty arises to cor-rect that statement. In a criminal prosecution, the Fifth Circuit held squarely that "It]he fact that the appellants never corrected the false 7

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, does not make the [ violation) a continuing one." 533 F.2d at 928.

SOME OBSERVATIONS in conclusion, I would like to comment on some of the views ex-pressed by my fellow Commissioners on Friday. Despite a detailed awareness of the significant legal weaknesses in this enforcement action, the view is widely held that Licensee will not challenge this penalty. In other words, the Commission believes that it can get away with imposing a substantial civil penalty without sound legal basis because Licensee will not sue. Additionally, the Commission expressly decided that even if it were sued and even ifit lost, a large civil penalty should be proposed so that the world will know how seriously the Commission regards this violation. Finally, the view was expressed that the question of whether the Commission could issue this penalty was a policy matter. This re-flects the apparent belief that when legal constraints limit the ability of the Commission to take a particular action, a viable way out of the dilemma is labelling the problem a policy question.)

When the Commission imposes large fines for the reasons described above, it is obviously bad public policy, Rarely mentioned, however, is how unfair such action is. Penalties, directly or indirectly, are paid by the consumers. It is extremely unfair to make consumers pay for sub-stantial civil penalties that don't have sound legal and factual foundations. It is similarly unfair to the customers of a particular utility to make them bear the cost of a penalty that the Commission has in-creased in size so that it will be a lesson to all other NRC licensees. I be-lieve that the Commission's decision in this case is improper and does not serve the public interest.

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3 The Commewon also appears to beheve that Vrrmio Dreira and to ier Co. r NAC. 571 F.2d 1289 (4th Cir 1970, proudes a legal basis for its ever-capandmg emerpretations of the phrase " material false i

statement." The Commiswon's rehance on the Fourth Circun decision to me seems misplaced That de-casion affirmed the Commission's deiermmanons that scener is not a necessary element of the phrase

" material false statemem" and that an omission can be a material false statement The courrs bnef deci-saon rewed explicitly on the fact that the case involved false statements m a hense app /noren and imph-citly on the fact that vEPCo's failure to mform the Commission of a possibly capable fault below the North Anna Units had a clear neaus to the Commisson's abihty to protect the public health and safety.

That decision does not support the theory that willful malenal false statements are contmuing uolations. Ibd 8

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O Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosanthal, Chairman

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i Dr. John H. Buck, W.* Chairman Dr. W. Reed Johnson Thomes S. Moore ef Chrienne N. KoN i

Gary J. Edles Dr. Reginald L. Gotchy Howerd A.Wilber a

l Mr. Eliperin resigned from the Panel on June 30,19!iG.

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u Cite as 18 NRC 9 (1983)

ALAB-733 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthat, Chairrnan Dr. John H. Buck Thomas S. Moore in the Matter of Docket No. 50-409 DAIRYLAND POWER COOPERATIVE I

(La Crosse Boiling Water Reactor)

July 13,1983 The Appeal Board in this consolidated proceeding (invohing, inter l

alia, the conversion of the long-standing La Crosse provisional license l

I to a full-term operating license) affirms, sua sponte, three Licensing Board decisions: LBP-81-7,13 NRC 257 (1981); LBP-82-58,16 NRC 512 (1982); and LBP-83-23,17 NRC 655 (1983).

DECISION This is a consolidated proceeding involving (1) the application of the Dairyland Power Cooperative for a full-term operating license for its La Crosse nuclear facility to replace a long-standing provisional license; and (2) a February 25,1980 show cause order issued by the Director of the f

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j Office of Nuclear Reactor Regulation and concerned with the liquefac-tion potential at the La Crosse site.' The extended history of the pro-ceeding is adequately summarized in LBP-82-58,16 NRC 512 (1982),

and requires no rehearsal here. Suf0ce it to say that, in an April 21, 1983 initial decision, the Licensing Board determined the last issue re-maining before it. See LBP-83-23,17 NRC 655. Because no exceptions to that decision have been filed, we are now called upon to review it on our initiative. Also at hand for like review are two earlier Licensing Board substantive opinions that similarly were not appealed -

LBP-82-58, supra, and LBP-81-7,13 NRC 257 (1981). We deferred consideration of them to await the final outcome of the proceeding below.

Our examination of the findings and rulings contained in the three opinions, and the record on which they are based, has disclosed no error warranting corrective action. Accordingly, each is affirmed.

It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board 3 More parttularly. IM show cause order - on which an evidentiary hearing mas held - raised the question whether the IKensee should be required to install a site dematering system 10 present liquefac-tion t#.r., the How or soil under the site), were an earthquake to ' occur en the sKinit) In order to determine the liquefaction potential, and thus lhe need to take protectivc measures against it the Licensarig Board had to ascertain, mier clan. the ground vibratory motion (t r.. acceleration) that might be associated with the posiulated earthquake Scr ALAB-618.12 NRC 551 (1980L 10

m Cite as 18 NRC 11 (1983)

ALAB 734 UNITED STATES OF AMERICA 1

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NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD l

Administrative Judges:

Alan S. Rosenthal, Chairman Gary J. Edles Howard A.Wilber In the Matter of Docket Nos. 50-443-OL 50 444-OL PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, etal.

(Seabrook Station, Units 1 and 2)

July 19,1983 The Appeal Board denies an intervenor's petition for directed certifica-l tion of a May 11,1983 Licensing Board ruling granting summary disposi-tion against one of intervenor's contentions in this operating license proceeding.

RULES OF PRACTICE: INTERLOCUTORY APPEALS Interlocutory appellate review of a licensing board's ruling will not be granted absent a showing that the ruling (1) is not only legally erroneous but, additionally, "afTect[s] the basic structure of the proceeding in a per-vasive or unusual manner," or (2) threatens the petitioner with "immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal." Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-405,5 NRC 1190,1192 (1977).

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RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES An oppositinn to a directed certification petition should include at least some di assion of the petitioner's claim of Licensing Board error, llow comprehensive the discussion of the merits need be will depend upon she totality of the circumstances of the particular case. Where the Licensing Board has summarily disposed of a principal contention of a party on a subject hasing as much potential safety significance as does quality assurance, the respondents to the petition should treat the merits in reasonable detail.

RULES OF PRACTICE: INTERLOCUTORY APPEALS The mere fact that legal error may have occurred below does not justi-fy interlocutory appellate review in the teeth of the long-standing artic-ulated Commission policy generally disfavoring such review. Sec 10 C.F.R. 2.730(f). Houston Lighting a Power Co. ( Allens Creek Nuclear Generating Station Unit No.1), ALAB-635,13 NRC 309, 310-11 (1981).

APPEARANCES Diane Curran, Washington, D.C. (with whom William S. Jordan, Ill, Washington, D.C., was on the brieD, for the intervenor New England Coalition on Nuclear Pollution.

R.K. Gad, III, Boston, Massachusetts (with whom Thomas G. Dignan, Jr., Boston, Massachusetts, was on the brie 0, for the applicants.

Public Service Company of New llampshire, ci al.

Roy P. Lessy (with whom William F. Patterson, Jr., and Robert G.

Perlis were on the brien for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER The New England Coalition on Nuclear Pollution (Coalition), an in-tervenor in this operating license proceeding, has petitioned for directed 12

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i certification of so much of th6 Licensing Board's May 11,1983 memo-randum and order as granted summary disposition against it on Coalition Contention 11.B.4. For the following reasons, the petition is denied.'

l. The quality assurance criteria for nuclear power plants are set forth in Appendix B to 10 C.F.R. Part 50. Pursuant to 10 C.F.R. 50.34(b)(6)(ii), the Final Safety Analysis Report (FS AR) accompanying an application for an operating license must include "a discussion of how the applicable requirements of Appendix B will be satisfied." In Contention ll.B.4, the Coalition asserted that the Seabrook FSAR failed to fulfill this mandate insofar as the applicants' operational quality assur-ance program for replacement parts and repair work is concerned.2 in granting the motions of the applicants and the NRC staff for sum-mary disposition of the contention, the Board took note of the acknowl-edged absence of any genuine issue of material fact and concluded that, as a matter of law, the FSAR complied with the dictates of 10 C.F.R. 50.34(b)(6)(ii). The conclusion rested on the following considerations:

In (FSARI 417.2.24 Applicants hate committed to conform to the recommenJa.

tions of Regulatory Guide 1.33. February 1978. "Qualily Assurance Proyram Requirementis) (OperationP Applicaats have committed to satisfy 4 5.113 lof a standard of the American N.stion.

al Standards Institutel " Procurement Materials Control," which requires that pur.

l chased materials and components associated with safety-related structures or sys-tems be purchased to speci0 cations equivalent to those specined ror the original equipment.

f Applicants have committed to a program that requires that spare and replacement parts must be purchased to meet the technical and quality level equal to that of equipment originally purchased, that inspection N made to assure proper ms: Watson

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of replacement parts and materials, that icpaired or reworked items must be inspect.

ed or tested to assure their acceptability, and that documentation of design changes i

will be acceptable to personnel.

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1 Ancther entervenor in the proceeding filed an appeal from, and in the ahernatne sought direcsaf ter-l tiricahon or a discrete ruhng contained in the same Licensing Board order % e dismissed Ac.ppea! and denied directed ceruricahon m AL AB 731.17 NRC 107) (1983) 2The full test or the contentson is as rollons-The Quahty Assurance Program ror operanons as deuribed m the Fs AR does not demonuraie how the Apphcant will assure that replacement materials and replaternerit p.irts incorporated into structures systems. or components empor:4nt to safety mill be equeidlent to she origmal equipment installed m accordance with proper procedures and requirements, and otherone ade-quate to protect the pubhc healih and safety. similarly, the Quality Awurance Program don nm assure of demonstrate hom repaired or remorked structures. systems or components eill be ade-quvely inspected and tested durirt, and arter the repair or remork pJ documented in "as buili" drawmss 13 l

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The NRC StalT indicated that at a later date the Apphcants must submit a QA manu.il which will $ct forth the actual procedures that are being descloped. That manual will be inspected by Region i personnel prior to the Applicants' receipt or an operating hcense.

At this point in time.. Applicants have sulTiciently outhned in the l'S AR how they well meet the quality assurance requirements.

May 11,1983 memorandum and order (unpublished) at 28 30.

2. Before us, the Coalition argues that interlocutory appellate review is warranted because the ruling below on Contention II.B.4 is not only legally erroneous but, additionally, "alTect(s] the basic structure of the proceeding in a pervasive or unusual manner" within the meaning of Public Scrrice Co. ofIndiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-405,5 NRC 1190,1192 (1977).5 in essence, the Coalition's position is that the acceptance by the Licensing Board of ap-plicants' " commitments" to meet the Appendix B quality assurance criteria cannot be squared with the Section 50.34(b)(6)(ii) directive that the FSAR describe how those criteria will be satisfied. We are further told by the Coalition that the Board's ruling has " critical implications

. for the validity of the overalllicensing decision." Petition at 9.

For their part, both the applicants and the staff maintain that, whether correct or erroneous, the Licensing Board's ruling does not warrant our interlocutory review. In its written response to the petition, the stalT went on to defend the rding on the merits.* According to the staff, the

" commitment" to which the Licensing Board attached the greatest sig-nificance was the applicants' adoption in their FSAR of the detailed guidelines established in Regulatory Guide 1.33 (February 1978), which in turn inccrporates standards promulgated by the American National 3 Marbir #4 estabhshed Iwo ahernative criteria for the grant of directed certification There es no claim here that the other test is also satisfied. Lt. the Coahtoon does not maintain that the challenged rukng ahreatens et with "smmediale ami serious arreparable impact which, as a practical matter, could not be al-leviated by a taier a9 peat " 5 NRC at 1192.

4 in an unpubhshed June 20. 1983 memorandum and order scheduhng the Couhuon's petition for oral argument, we noted our disapproval of the applicants' failure to have treated the merits of the controver-sy in their written respome. For the guidance of our Bar as a whole we reiterate the concluding para.

graph of our discussion on the point:

lOlur general expectation is that an opposition to a Jirected certification petition will include at least some descussion of the peutioner's claim of Licensing Board error. (Indeed. more broadly, the response to any motion (and a petition for directed certsrication falls in that category) is in-complete ifit totally ignores assertions advanced in support of the rehef sought by the movaw How comprehensive the unscussion of the merits need be will depend. of course, upon thu totati-ty of the circumstances of the particular case. Where, as here. the Board below Pas summarily disposed of a principal contenuon of a party on a subsect having as much potential safety sismfi-cance as does quality assurance, the respondents to the petition.buld treat the merits in rea-sonable detail.

June 20.1983 memorandum and order at 4-$.

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Standards Institute ( ANSI). As the staff sees it, that adoption -

coupled with the FSAR description of the overall quality assurance pro-gram - sufficed to meet the applicants' Section 50.34(b)(6)(ii) obligation. Any further detail, so the argument proceeds, can await the issuance of the applicants' quality assurance manual in implementation of the program outlined in the FSAR. Once the manual becomes publicly available, the Coalition will be free to submit a new contention if it deems the procedures set forth therein to be inadequate to insure compliance with the Appendix B criteria. Scc p.16, infra.

3. As seen, the Coalition's petition would have us decide at this inter-locutory stage whether the treatment in the FSAR of the applicants' quality assurance program for replacement parts and repair work -

which includes a commitment to comply with the relevaot provisions of Regulatory Guide 1.33 and the ANSI standards incorporated therein -

is a suflicient " discussion of how the requirements of Appendix B will be satisfied" within the meaning of 10 C.F.R. 50.34(b)(6)(ii). Insofar as we are aware, that portion of the regulation has not received prior adju-dicatory scrutiny. And it may be that the Coalition is right that the phrase in question should be interpreted as calling for greater illumina-tion of the details of the quality assurance program than has been sup-i plied in this FSAR. But it scarcely fo"aws that the directed certification standard has been met. Contrary to the Coalition's claim, it does not I

appear to us that the Licensing Board's interpretation and application of Section 50.34(b)(6)(ii) - even if of doubtful validity - perforce will have a pervasive or unt!sual effect upon the basic structure of this proceeding. And, as we stressed in Houston Lighting d Power Co. (Allens Creek Nuclear Generating Station, Unit No.1), ALAB-635,13 NRC 309, 310-11 (1981), the fact that legal error may have occurred does not of itself justify interlocutory appellate review in the teeth of the long-standing articulated Commission policy generally disfavoring such review. See 10 C.F.R. 2.730(f).

4. Notwithstanding the foregoing considerations, there was one aspect of1.~- L.icensing Board's ruling that became of concern to us early in our appraisal of the Coalition's petition. Although deeming the de-scription of the operational quality assurance program in the FSAR to be

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sufficient compliance with 10 C.F.R. 50.34(b)(6)(ii), the Licensing Board took pains to point out that, prior to commencement of facility operation, the applicants must supplement that description with a quality assurance manual in which "the actual procedures that are being deve!-

oped" are set forth. See p.14, supra.5 The Board did not go on to ad-

' Thn oNigation arrears to h.ese its roots in section H or Appi ridis B to 10 C l' R Par 50 l

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dress explicitly the question whether, when the manual became publicly available, the Coalition might Gle a new contention directed to the ade-quacy of those procedures. But, as previously noted, the staff took a po-sition on that question in its response to the Coalition's petition. In the staffs view, the grant of summary disposition on Contention ll.B.4 was "without prejudice... to a later assertion by (the Coalition) in the form of a contention that the actual procedures, once they are submitted, are dencient." Response at 11. In this connection, the staff pointed to our decision in DuAe Power Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-687,16 NRC 460,469 (1982). We there held that "as a matter of law a contention cannot be rejected as untimely if it (1) is wholly dependent upon the content of a particular document; (2) could not therefore be advanced with any degree of specificity (if at all) in advance of the public availability of that document; and (3) is tendered with the requisite deFree of promptness once the documen: comes into existence and is accessible for public examination."

In common with the staff, it seemed to us that the Coalition's oppor-tunity to challenge the adequacy of the applicants' quality assurance procedures should not hinge upon whether the procedures were fully spelled out in the FSAR (as the Coalition has insisted they shou ld have been) or, rather, were reserved for a later-issued manual (as the Licens-ing Board implicitly concluded is permissible). What the staff response left unclear, howeser, was whether, as a practical matter, the Coalition would be able to availitself of our Catawba holding.

Although Appendix B requires the formulation of detailed quality assurance procedures (see note 5, supra), neither it nor any other Com-mission regulation of which we are aware specifies how far in advance of reactor operation the procedures are to be submitted. For present purposes, all that was before us on that score was the applicants' repre-sentation in Section 17.2,2.1 of the FSAR that their quality assurance program would be "implemer;ted at least 90 days prior to fuel loading."

By that time, of course, the evidentiary record in this proceeding well could be closed.

In the circumstances, we decided to hear orai argument on the petition and to direct the parties to discuss at argument, inter alia, the question of the remedy that would be open to the Coalition were the detailed quality asurance procedures not to become publicly available until after the evidentiary record had closed. June 20, 1983 memorandum and order at 5-6.

5. Between the issuance of our June 20 order and the date of argu-ment (July 13), there were two developments having a bearing on our inquiry. First, on June 30, the Commission reversed in part our Catawba 16 l

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decision. CL1-83-19,17 NRC 1041. The Commission held that, even if it were to satisfy the three-part test we laid down in ALAB-687 (see p 16, supra), a belated contention nonetheless is amenable to rejection on the strength of a balancing of all live of the late intervention factors set

'iorth in 10 C.F.R. 2.714(a).* Second, in a July 5 letter, applicants' coun-sel advised us that a number of the detailed quality assurance procedures within the scope of Contention ll.B.4 are now both formulated and available for inspection and that the balance would be so available no later than October 1,1983.' (Presumably, the totality of the procedures constitutes the manual to which the Licensing Board referred.)

Given these developments, at oral argument we sought the siews of counsel for the applicants and the staff respecting whether, in the event that the Coalition were to prevail on the good cause factor (i.e., to satisfy each element of the three-part Catawba test), there migM nonetheless be room for the Licensing Board to reject a new quality assurance con-tention on the basis of the other Section 2.714(a) factors - particularly, the fifth factor.8 (As scarcely requires elaboration, the outcome of the balancing of the five factors in a specific case will turn upon the particu-lar circumstances of that case.) Both counsel responded in the negative

- without, of course, conceding that, in fact, the Coalition will be able to make the requisite good cause showing. App. Tr. 41-42, 44, 52, 55.

We agree with that assessment. This being so, we are now persuaded that, far from doing violence to the basic structure of the proceeding or to the Coalition's participational rights, the Licensing Board's interpreta-l tion of Section 50.34(b)(6)(ii) is of relatively little true significance.'

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• Those Gwe factors are-(i) Goud cause,if any. for failure to Gle on time (ii) The asailabihty of other me ns whereby the petinoner's interest mill be proiccted I

(m) The esient to mh5ch the petinoner's parucipauon may reasonably be espected to asust eri de-veloping a sound record.

(iv) The estent to mhich the pennoner's interest will be represemed by esisiing parues.

(v) The estent to which the petauoner's participanon mill broaden the issues or delay the protecoms The Commission did agree than our three part iest censututes a reasonable and usetut tesi of the good cause factor as apphed to late-Gled contenuons based solely on informauon contamed in insutu-uonally unavailable hcensmg-rel.;ted documents " CLI 83-19.17 NRC at 1047. li held in ellect.

however. ilut, sa a parucular case. a Board might conclude that. although there mas good cause for the l

late submission of the contenuon. Ihr other four factors operated to outweigh that considerat on 7 As we understand it, in no esent mill the eudentiary record in this proceedmg slose pnor to this

December, a Patently the acceptance of the conteni on mould broaden the issues and might bnng about some mea-sure of delay in concluding the proceedmg (the Gfth factor) i

'one of the prongs of the Carenbo good cause test es that the contenuon be " tendered with the requi.

site degree of promptness once the document comes into esistence and is accesuble for pubbe esamination." Sec.p.16. supra. Although portions of the quahiy assurance procedures may hase been available for some ume. counsel for the apphcants acknomledged that. "through no fauli" cf its own.

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I To be sure. the Coalition would have preferred the FSAR to contain greater detail regarding the implementation of the applicants' quality assurance program for replacement parts and repair work. And it is equally true that, had that detail been provided (as the Coalition main-tains was mandated by the regulation), the Coalition might not be faced with the possible future burden of justifying the filing of a late conten-tion from the standpoint of the good cause factor as delineated in Carawba. But that burden should not be a dillicult one to fullill if what-ever contention the Coalition were to advance following receipt of the complete quality assurance manual rests upon the disclosures in that manual, rather than upon information that was available to it from other sources at the time Contention ll.B.4 was liled.

The Coalition's petition for directed certilication is denied.

It is so ORDERED.

FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board s

the Coalition had not been prenously amare of the pictemeal reicaw and th.et. in an3 esent. the prose-dures are miended to be m.ide available for reuem and mspection as a smgle unit App Tr.1 N 3 %v alw App. Tr 70 in this caw, therclort. the tlnk will start to run for the Coalition on the date th t the last qualst) assurance procedure dealing with repl.itement parts and rep.iir work be6pnics puble61) asailable 18

i Cite as 18 NRC 19 (1983)

ALAB 735 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman Christine N. Kohl Dr. Reginald L Gotchy i

in the Matter of Docket Nos. STN 50-454-OL STN 50 455 OL COMMONWEALTH EDISON COMPANY (Byron Nuclear Power Station, Units 1 and 2)

July 27,1983 The Appeal Board dismisses the NRC staffs appeal from, and denies its alternative motion for directed certification of, the Licensing lioard's unpublished July 1,1983 memorandum and order in which the Board, in/cr alia, directed the staff to present evidence that the staff asserts would require it to disclose information about confidential investigations that could result in their compromise.

1 RULES OF PRACTICE: INTERLOCUTORY APPEALS l

Almost without exception, an appeal board will undertake discretion-ary interlocutory review only where the ruling below either (1) threat-ened the party adversely alTected by it with immediate and serious ir-reparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a t

pervasive or unusual manner. Public Service Co. ofIndiana (Marble Ilill Nuclear Generating Station, Units 1 and 2), ALAB-405,5 NRC 1190, 1192 (1977).

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f fl ADJUDICATORY llEARINGS: RESOLUTION OF FACTUAL m

ISSUES (REPRESENTATIONS OF COUNSEL)

Questions of fact are not susceptible of resolution on the basis of noth-ing more than the generalized representations of counsel who are un-equipped to attest on the basis of their own personal knowledge to the accuracy of the representations. See, e.g., Charles River Park "A " /ne.

Department of Housing and Urban Development. 519 F.2d 935,939 (r Cir.1975). See also Cohen v. Massachusetts Bay Transportation Authoru.

647 F.2d 209,213-14, (1st Cir.1981); Stokes v. UnitedStates,652 F.2d 1 (7th Cir.1981). Cf Fed. R. Civ. P. 56(e); 10 C.F.R. % 2.749(b).

RULES OF PRACTICE: PROTECTIVE ORDERS In the absence of evidence to support a belief of a risk of breach, a licensing board may assume a protective order will be obeyed. Houston Lighting d Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535,9 NRC 377,400 (1979).

FEDERAL COURTS: COLLATERAL ORDER DOCTRINE f

The " collateral order doctrine" in federal practice permits the immeci-ate appeal of orders that " finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that ap-I pellate consideration be deferred until the whole case is adjudicated."

Cohen v. BeneficialIndustrial Loan Corp.,337 U.S. 541,546 (l949).

APPEARANCES Steven C. Goldberg and Mitzi A. Young for the Nuclear Regulatory Commission staff.

Jane M. Whicher, Chicago, Illinois, for the intervenors, the Rockford League of Women Voters and DAARE/ SAFE.

Joseph Gallo, Robert G. Fitzgibbons, Jr., and Lisa C. Styles.

Washington, D.C., for the applicant, Commonwealth Edison Company.

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Tho:nas Devine, Billie Pirner Garde, and John Clewett, Washington, D.C., for the amicus curiae, Government Accountability Project, Institute for Policy Studies.

MEMORANDUM AND ORDER The NRC staff has appealed from, and in the alternative moved for directed certification of, an unpublished July 1,1983 memorandum and order of the Licensing Board in this operating license proceeding (" July I order"). Responses to the motion for directed certification were filed by the applicant, the joint intervenors,' and the Government Accounta-bility Project of the Institute for Policy Studies as amicus curiae.2 On full consideration of the papers before us, and for the reasons set forth below, we deny directed certiGcation. In addition, the stafl's appeal is dismissed.

1. It is not necessary to canvass in great detail here the background of the controversy. Suflice it to say that.she July I order was preceded by a June 21,1983 unpublished memorandum and order (" June 21 order")

in which, on the motion of the joint intervenors, the Licensing Board reopened the record on quality assurance issues. That motion was found-ed upon the sworn statement of John llughes, a quality assurance inspector formerly assigned to the flatGeld Electric Company (a con-struction subcontractor for the Byron facility). In that statement, Mr.

Ilughes asserted a number of speciGed irregularities in the execution of the quality assurance program pertaining to the work performed by llatfield.)

For its part, the July I order served principally to memorialize the sub-stance of conferences that the Licensing Board had held with the parties by telephone in the wake of the June 21 order. The Board Grst took note of the directive in the June 21 order that the parties be prepared "'to present a full evidentiary showin5 and explanation of the pertinent in-vestigations ofliatGeld Electric's quality assurance program and the sub-sequent reinspections.'" July I order at 1. In this connection, the Board 8 The Rodrord League or Women voters at:d D A ARE/s AFE 2 The Project's moison for leave to file an emans rurme bner. which accompanied als respone. is hereb) granted.

3 In a companion order issued on the same day, the Licenung Board granted the joint intersenors' rur-ther request to allow the testimony or Mr. Hughes.

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alluded to the previously received direct testimony of NRC officials in Region ill (which has territorial inspection jurisdiction oser facilities located, as is Byron, in Illinoiz) that:

Three addnional persons hase prouded allegations related to work performed or being performed by the llatfield Electric Compan) and these allegations are now under NRC insesiigation. These allegations are in the areas of records. QC lqualit) controll inspector qualification and certification. liardware. design and drawing control. correctise action. houwkeeping, and inspector independence. A pprosimate-

1) half of these allegations were presiously identified by routine and nonroutine inspections. and will be resob ed by routine inspector followup. The remaining alle-gations are being esaluated jointly and seserally b) the OHke of Insestigations and Region Ill. The results of the inspections or ingestigat;ons will be documented at some future time.

Id. at 1-2. The Board went on to reiterate that, as it had explained in one of the telephone conferences, the ordered esidentiary presentation is to cover "all aspects of the llatfield QA/QC program referred to in the Region ill testimony." /d. at 2.

The Licensing Board then addressed the staff's insistence that it would not comply with the directive to present evidence elaborating on the Region 111 testimony because, "'as a matter of policy, lit) will not disclose detailed information about allegations which are the subject of ongoing inspections and investigations (including those by the Office of Investigations) because such disclosure has the potential to compromise the inspection and investigation of the matters.'" lbid. On that score, the Board observed, inter alia, ti at the staff "has failed to explain or even discuss why traditional procedures such as in camera hearings and protective orders would not serve to protect the effectiveness of the in-vestiguions and inspections. Nor does the Staff provide an explanation why it believes, if it does, the Board can proceed to a decision on the factual issue without the evidence covered by the order.' /d. at 3.

Indeed, the staff had not provided "any advice to the Board whateser, other than to advise lit] to accept the premise that lit} cannot inquire into pending investigations." lbid. Accordingly, as the Board saw it, it was "left with no choice but to direct the Staff to present esidence on the cited portion of the Region ill testimony." lbid.

Finally, the Licensing Board addressed the question whether the staff should be required "to provide in advance of the hearing relevam infor-mation on the confidential investigations." /d. at 3-4. Observing that the staff opposed the imposition of such a requirement "on the basis of 10 C.F.R. 2.790l(a)](7) which may exempt from. disclosure investigatory records compiled for law enforcement purposes," the Board responded:

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O Here again the staff would not consider the possibility of protectise orders as anticipated by 10 CFR 2.744(e) an8. of course, the Board has no way of knowing ehether all on the informati6n is coscred by exemption (7) of Section 2,790 or whetner an eneption to esiemption-(7) is in order. Accordangly, the Staffis directed to produce telesant documems in advance of thc' reopened proceeding. This order does not prohibit the Staff from dechning to produce documents exempt from production on other grounds, c.Jr., privilege, or from secking a protectise order against improper disclosure by other parties.

/d. at 4.*

2. The standards for the grant of directed certification are well established:

Almost without exception in recent times. we base undertaken diwretionary inter.

locutory resicw only where the ruimg below ci"ier (1) threatened the party adserse, ly afrected by it with immediate and serious irreparable impact which. as a practical matter, could not be alleviated by a later appeal or (2) allected the basic structure of the proceeding in a pervasise or unusual manner.

Public Service Co. ofIndiana (Marble liill Nuclear Generating Station, Units I and 2), ALAB-405, 5 NRC 1190,1192 (1977). The stafT does not maintain here that the second of these criteria is satis 0ed. Rather, its motion rests entirely upon the first criterion. We are told that "the disclosure of detailed information regarding allegations which the NRC has not yet inspected or investigated could seriously compromise the in-spection and investigations of the pending aliegations and the Commis-sion's ability to pursue future investigations of safety-related matters, thereby injuring the Commission's ability to protect the public health and safety." Motion at 10-11. This same broad assertion is repeated throughout the motion, with respect to both the evidentiary presentation and the prehearing disclosure of documents that has been ordered by the Licensing Board. See, e.g., id. at 12,15,17.

The difficulty with this line of argument is that it is advanced by staff counsel, entirely unsupported by the affidavit of any NRC official actual-ly responsible for the conduct of either inspections or investigations.

Whether a particular NRC investigation or inspection might be compro-mised by disclosures of the type ordered by the Licensing Board here is a question of fact, not of law. As such, it is not susceptible of resolution in the stalTs favor on the basis of nothing more than the generalized rep-resentations of counsel who are unequipped to attest on the basis of

• At the conclusion or the order, the Board announced that the reopened hearms mould commente c.n August 9.198) It noe appears. however, that the required stafr cudenury presentation m controsere here will not, en any esent. be received at that time Sev Licensing Board Memorandum and Order Denymg stay Applicauon. LBP.8340,18 SRC 93,103 n 7 Il98D 23 f

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their own personal knowledge to the accuracy of the representations.

See, e.g. Charles River Park "A "inc. v. Department of Housin.t: and Urban Dere/orment, 519 F.2d 935, 939 (D.C. Cir.1975). See also Cohen v.

Afassachusetts Bay Transportation Authority, 641 F.2d 209, 213-14 (1st Cir.1981); Stoltes r. United States. 652 F.2d I (7th Cir.1981). C/. Fed.

R. Civ. P. 56(e); 10 C.F.R. 2.749(b) (amdavits in support of a motion for summary judgment or disposition "shall set forth such facts as would be admissible in evidence and shall show amtmatively that the amant is competent to testify to the matters stated therein").

In its motion (at 2 n.2), the stalT pointed out that the " inspection" and "insestigation" functions that it lumps together in its argument are performed by two separate entities within the Commission:

" inspections are done by NRC Regional personnel and investigations by the Omce of Investigations (01)." The footnote goes on to stress that 01 is not represented by the Omce of the Executive Legal Director (i.e,

the office that authored the motion and the assertions therein).'

Nonetheless, we are told, " reference to investigations is appropriate be-cause the potential compromise of NRC activities is equal /r important with respect to both inspections conducted by the StalT and investiga-tions undertaken by 01." / bid. (emphasis supplied).

In these circumstances, crucial significance attaches to the failure of the staff to have buttressed its pivotal assertion with the affidavits of om-cials of both Region til and O! possessing firsthand knowledge of the possible impact of the Licensing Board's disclosure order on the carrying out of their respective responsibilities. Surely, if they in fact subscribed to stalT counsel's sweeping claim, it is reasonable to suppose that those officials would have been prepared not merely to go on record to that effect but, as well, to provide under oath the requisite underlying detail.

Be that as it may, absent any such undertaking, neither the Licensing Board nor we could justifiably accept the claim?

$for organuational purposes. of n regarded as a "Commimon uafl~ ointe. # r il reports direstly to the Commnsion rather than (as do the Region 111 personnel concerned with re.ntor enspestions) to the Emecutive Director for Operations The OtDsc of the Esecutne Legal Director n not sharged with the responsibihty or representing Commmion stair otTwes m adjudwator) matiers or prosidmg them with legal adtwe. Rather. as me understand it, sush othes must look to the Othe of the General Counwl for an) Jewred representation and adswe

• on July 22.1983 Ben B flaves. the ol Director, responded to a letter sent oser a month carher ton June 211 tn Judge Ivan w. smiih. the twensmg Board Chairman. in Eugene T. Pamhk. the Director of the 01 field otRe tocated in Region lit tot is headquarnered in Bethesda Maryland, but h.h field per.

sonnel stationed in each of the the NRC regions I in his letter. Judge smith reque,ted the soluntar) cooperaison of of in certam partwular respects with regard to the further esidentiar) hearmy on the re.

opened quahiy assurarwe assues 101 n not a party to ihn proceedmg i Although statmg his behet that compliance with some of Judge Smith's speans requests of ol might compromne the ongoing 3 I order insestigation. Mr. Ita>cs did not address emplwitly or imptwitty the Licensmg Boardi Jul Morcoser. Mr. It4>es' letter neither was before the Lwensmg Board nor properly s.in be treated as part of the record before ut 24

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Even were we to overlook these considerations and to adopt uncritical-ly counsel's premise that public disclosure of the sought information might compromise inspections and investigations, the stafi's request for our intercession at this juncture would still be lacking a sufficient foundation. We do not understand the Licensing Board to be insistent that the inforr iation supplied by the staff be made publicly available. See

p. 22, supra. The stafT appears to recognize as much but argues that, even if the information were disclosed to the parties in camera and under an appropriate protective order, there would remain the risk that, inadvertently or otherwise, the protective order would be violated and the information communicated to individuals who are the target of'the inve:tigation or inspection. Motion at 12.

But the same could be said of the disclosure of any information to the parties to an adjudicatory proceeding under the aegis of a protective order. Up to this point at least, licensing and appeal boards have acted on the assumption that protective orders will be obeyed. Houston Lighting d Power Co. ( Allens Creek Nuclear Generating Station, Unit 1),

ALAB-535, 9 NRC 377, 400 (1979). On that assumption, boards have permitted the disclosure to parties of a wide variety of sensitive informa-tion - including the details of plant security plans. See, e.g., Parvic Gas and Electric Co. (Diablo C:.nyon Nuclear Power Plant, Units I and 2),

ALAB-592,1I NRC 744,746, and ALAB-600,12 NRC 3 (1980); Con-solidated Edison Co. (Indian Point Station, Unit No. 2), ALAB-177, 7 AEC 153 (1974). But see Houston Lighting & Power Co (South Texas Project, Units 1 and 2), ALAB-639,13 NRC 469, 477 (majority),

484-85 (dissent) (1981). To our knowledge, there has never been a breach of an NRC protective order that seriously threatened the confi-dentiality of the information revealed under that order. If, nevertheless, the staff has some basis for believing that there is an actual, as opposed to purely theoretical, risk of such a breach here, it had the obligation to document that basis.

In sum, tLe staff has failed to buttress adequately on the record its claim that the ongoing inspections and investigations into the pertinent allegations might be seriously compromised. Thus, it has failed to satisfy the first of the two Afarble Hi/I criteria (see p. 23, supra), and there is simply no cause for our stepping into the controversy. We therefore deny the stafTs motion without prejudice to its seeking Licensing Board reconsideration of the July I order.' Any motion for such relief, 7 for a hke reason, we reject the applwant's suggestion that the Licensms Board's order warrants ulti-male referral to the Commnuon to "reconule conflgting polg) considerations " Response at 29 25

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/

however, must be grounded upon a concrete showing, through appropri-ate affidavits rather than counsel's rhetoric, of potential harm to the in-spection and investigation functions relevant to this case.

3. In light of the foregoing, there is also no justification for keeping the stafTs appeal from the July I order on our docket. That appeal is founded on the " collateral order doctrine" set out in Cohen r. Bencficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).' As the staff acknowl-edges (Motion at 3 n.4), we have previously observed that "lw]hether a disclosure order of the kind in question" comes within that doctrine "is an issue about which the federal courts are themselves divided." South Texas, supra 13 NRC at 472.' We see no need here to endeavor to reconcile the conflicting judicial views respecting the reach of the doctrine. For, even were we to conclude that it lies, the appeal would be unsuccessful for essentially the same reason as the motion for directed certification has been denied, i.e., the failure of the staff to establish that it has a substantial claim of Licensing Board error. This being so, the appeal is dismissed.

The staff's motion for directed certification and appeal are, respectively, denied and dismissed without prejudice to the filing of a motion with the Licensing Board for reconsideration of that Board's July 1,1983 order.

It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board

~,

8As described in, Cohen, the doctrme permits the immediale appeal of orders that " final!) determme claims of right separable trom, and collateral 10. rights asserted in the action. too important to be denied review and too independent or the cause stself to require that appellate consideration be deferred until the whole case is adjudicated. 337 U.s. at $46.

'In this regard. ser In rc Unned Siairs. 565 F 2d 19. 21 (2d Cir.1977), art. drard sub noar. Bell i Socankst WorArrs Party. 436 U.S 962 (1978). and Sournern Methodasr Unw Ass'n v. Hjnne & JaHr. 5%

F.2d 707,711-12 (5th Car.1979), cited in n 8 of the South Texasopinion 26 4

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t Atomic Safety and Licensing l

Boards issuances l

ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter, ' Chairman Robert M. Lazo, 'Vice Chairman (Executive)

Frederick J. Shon, *Vice Chairman (Technical) 1 Members I

l l

Dr. George C. Anderson Andrew C. Goodhope Dr. M. Stanley Lhnngston Charles Bechhoefer*

Herbert Grossman*

Dr. Emmoth A. Luebke' Peter B. Bloch*

Dr. Cadet H. Hand. Jr.

Dr. Kennth A. McCollom Lawrence Brenner*

Jerry Harbour

• Morton B. Margulies*

Glenn O. Bright' Dr. David L. Hetrick Gary L. Milhollin i

Dr. A. Dixon Canihan Emest E. Hill Marshall E. Miller

• James H. Carpenter

• Dr. Robert L. Holton Dr. Peter A. Morris' Hugh K. Clark Dr. Frank F. Hooper Dr. Oscar H. Paris' Dr. Richard F. Cole

• Helen F. Hoyt*

Dr. Hugh C. Paxton Dr. Frederick R. Cowan Elizabeth B. Johnson Dr. Paul W. Purdom Valentine B. Deale Dr. Wetter H. Jordan Dr. David R. Schink Dr. Donald P. de Sytva James L. Koney*

tvan W. Srnith' Dr. Michael A. Duggan Jerry R. Kline' Dr. Martin J. Stemdier Dr. George A. Ferguson Dr. James C. Lamb Ill Dr. Quentin J. Stober Dr. Harry Foreman James A. Laurenson*

Seymour Wenner Richard F. Foster Gustave A. Linenberger*

John F. Wolf John H Frye lil' Dr. Linda W. Uttle Sheldon J. Wolfe' James P. G6eesen i

• Purmanent panel members l

I

l f

O Cite as 18 NRC 27 (1983)

LBP 83-33 UNITED STATES OF AMER 6CA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chairman Dr. Kenneth A. McCollom Dr. Walter H. Jordan in the Matter of Docket Nos. 50-445 50 446 (Application for Operating License)

TEXAS UTILITIES GENERATING COMPAPiY, et al.

(Comanche Peak Steam Electric Station, Units 1 and 2)

July 6,1983 The Licen<.ing Board rules that although pipe supports expand when heated by environmental conditions that occur in the containment during a loss-of-coolant accident, the stresses that occur within those supports due to thermal stress are not required either by the stalT guid-ance or applicable code provisions to be considered in designing the supports. However, intervenors are not barred from introducing esi-dence that failure to cor. sider thermal stress would lead to design insta-bilities that are unacceptable under the Commission's general design criteria. Although thermal stress need not be considered, the expansion of a pipe support under loss-of-coolant accident conditions will place stress on its end points. These stresses on anchors, concrete and pipes must be considered during the design of these systems.

27

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LOSS-OF-COOLANT ACCIDENT: PIPE SUPPORTS Stress that would be placed on supports and pipes by the expansion of pipe supports under LOCA conditions must be considered in the design of those supports and pipes. However, under applicable stalT guidance and industry codes, design consideration need not be given to thermal stress that occurs within the pipe supports because the expansion of the support is constrained. Intervenors may, however, introduce evidence that casts doubt on the stability ofindividual supports as a result of ther-mal stress not having been considered in the design of those supports.

ASME CODE When the American Society of Mechanical Engineer's ( ASME) Code is applicable to a nuclear plant pursuant to Commission regulations, the Board must interpret the Code to determine its applicability to the licens-ing proceeding. The general principle of the Code that only ASME may interpret its Code is not biraing on licensing boards.

REGULATORY GUIDES 11 is appropriate for a licensing board to interpret a Regulatory Guide that applies an ASME Code section. To the extent that the Guide applies a Code provision in a setting for which it was not originally intended, in-terpretation of the Guide does not constitute a Board interpretation of a Code provision.

TECHNICAL ISSUES CONSIDERED Thermal stress in pipe supports (under LOCA conditions)

LOCA hhermal stress in pipe supports) l Free end displacement Expansion stresses Self-balancing stress Design conditions (meaning under the ASME Code)

Repetitive loads Elastic action i

Shakedown into elastic action.

l 28

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MEMORANDUM AND ORDER (Thermal Stress in Pipe Supports)

Citizens Association for Sound Energy (CASE) has argued that the pipe supports attached to piping systems that must function during a loss of-coolant accident (LOCA) must be analyzed to determine whether they would function properly under the e!evated temperatures in the containment that would be expected to occur during a LOCA.

There is no argument with CASE's basic proposition. Obviously, plant systems which are designed to mitigate a LOCA must be able to operate in the environmental conditions that would occur in the containment during a LOCA.

There also is no basic disagreement with the way in which a LOCA would affect the pipe supports. LOCA conditions would cause a tempera-ture rise in the containment of somewhere between 180'F and 210*F.

The steel pipe supports would expand more and would heat far more rapidly than the concrete containment. Because the supports lie between anchors fixed in the concrete, or between concrete surfaces, or between a concrete surface and a pipe, this thermal expansion would be constrained. This constraint will generate forces on the surfaces to which the supports are affixed and it also will generate stress within the support itself.

There is no argument among the parties about the need to analyze the effect of this thermal expansion on the anchors, surfaces and pipes to which pipe supports are alTixed. Ti.e Staff of the Nuclear Regulatory Commission (staff) and Texas Util' ties Generating Company, et al.

(applicant) agree that these stresses due to the expansion of the supports must be analyzed.

The difference among the parties is solely with respect to how thermal stresses, lying entirely within the supports themselves, should be treated. CASE argues that these forces must be analyzed in combination with other forces acting on the supports in order to determine whether they would " fail" from these combined loads. Applicant and staff argue, on the other hand, that there is no regulation, regulatory guide or provi-sion of the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code (Code) that requires applicant to analyze ther-mal stresses in the design of pipe supports. They argue that these forces, which they consider to be "self-limiting" and of minimal engineering 29 i

l importance, are easily accommodated within the design margins being m

used at Comanche Peak.'

The purpose of this decision is to review the regulations, guidance and Code provisions and to Jetermine what they require of the applicant. The scope of our inquiry is limited to these regulatory materials. Our conclusions concerning these materials do not preclude CASE from demonstrating - as they have attempted to do through evi-dence already presented to us - that particular supports fail to meet the Commission's general design criteria. Since CASE has come forward with some evidence on these matters, thus meeting the burden of going forward, the burden of proof rests with the applicant.

I.

BACKGROUND AND DEFINITIONS Interpretation of applicable regulatory materials to the proper treat-ment of thermal stress in pipe supports is a tangled web. As different Code provisions have been interpreted and oral argument has progressed, the positions of the parties on these Code provisions has not always remained constant. Indeed, the Board itself had at one point thought it understoc d these materials but then reconsidered, calling for more oral argument. The principal relevant oral arguments were heard on Atay 16,1983 and again on June 13, 1983, these arguments are part of our transcript.

Although we are convinced that we have now arrived at the correct in-terpretation of the applicable materials, we are concerned that the ASN1E Code may not be as useful a document as it should be. In particular, it is ash 1E's practice to promulgate Code provisions and amendments without an.r statement of purpose or of objectives. This is contrary to the practice of legislatures and regulatory agencies, which recognize that a discussion of the objectives for which words are drafted can be most helpful in efficiently interpreting and using those words.

We believe that ash 1E could improve the usefulness of its Code if fute.c amendments were accompanied by statements of purpose.

In this instance, the interpretive problems posed by the Code revolve around developing a consistent interpretation for the terms " thermal stress," and " free-end displacement." Along the way, we also have had to learn the irrelevance of " expansion stresses," which are defined by I Apphcant also argues, from a morst-case anat>us. that its supports can accommodate thermal stresses adequately since C AsE has presented eudence concermng the adequx) of thei.' analpes for awuring the safety or the upper lateral restraint and the moment restraint, and since the parties hase not )ct Oled Gndm!ts on this eudence. we rerrain rrom addresung the sahday of this eudentiary argumet 1 30

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Code subsection NB-3213.20 to be limited only to "the piping system,"

rather than to pipe supports.

The principal confusion afuicting our consideration has been between

" free-end displacement" and " thermal stress." Code subsection NB-3213.19 defines free-end displacement as:

. the relatise motions that would occur between an attachment and connected structure.. if the two members were separated. Esamples or such motions are those that would occur because of relatise thermal expanuon of piping. equipment, and equipment supports, or because of rotations irnposed upon the equipment by sources other than the piping.

For this definition to come into play, there must be concern for an at-tachment and connected structure and for some motion that would occur but for the connection between these two. Ilowever, the source of the motion is not specified. Thermal expansion of piping is one listed example. Applicant has suggested that differential building settlement or differential seismic displacements also are examples.2 To understand thermal stress, defined in subsection NB-3213.13, we consider it helpful to analyze the first two sentences of the definition separately. The first sentence is:

Thermal stress is a self-b.lencing stress produced by a nonuniform distribution of temperature or by difTering thermal coefficients of expansion.

It appeared to us that the most likely way for the stress we were con-cerned with to fall within this definition would be if it resulted from

" differing thermal coefficients of expansion." Because we were not sure whether that aspect of the definition covers the phenomenon that we are concerned about, we asked the parties to comment on what would happen if a steel pipe were attached along a diameter of the inside of a steel cylinder (a steel diame.ar), of the same type of steel, and the two were uniformly heated. The parties agreed that the unit would expand uniformly and that there would be no thermal stress. This clarifies for us that if the cylinder were made of concrete, which has a lower coefficient of expansion than the steel diameter, that a stress generated when the unit is heated would be the result of differential coefficients of expansion.

In addition, if uniformly heated air circulated around our hypothetical concrete cylinder, a portion of the stress would be due to differences of 2Tr.7551.

31 m_..

e heat transfer. The steel diameter would heat faster, causing a non-uniform distribution of temperature in the concrete steel unit. This also would give rise to thermal stress.

The most enigmatic part of the Code sentence that we are analyzing is the first clause, which calls thermal stress "self-balancing." After lengthy deliberation, we conclude that thermal stresses may be defined as "self-balancing" because the only portion of the stress from thermal es-pansion that is being called " thermal stress" is the stress occurring within the heated component because it is conGned and cannot espand.

Ilence, thermal stress is the stress resulting within a component uw// in order to balance the stress created because the component cannot expand.

This interpretation of the Grst sentence of the definition is consistent with the second, somewhat clearer, sentence:

Thermat stress is deseloped m a soM t=4 whenener a solume of material h pre-sented from assuming the site and shape that it normally should under a change m temperature. (Emphasis added.)

This sentence makes it clear that thermal stress is generated because a solid body is prevented from expanding due to a change in temperature.

Furthermore, the stress involved exists in the solid body itself.

This explication clarifies for us the relationship between free-end dis-placement and thermal stress. When a solid body (say a pipe support) is alTixed at its ends (possibly to two anchors set in concrete), heating that body will make it want to expand. Because the ends are presented from moving outward by the anchors, there will be a constraint of free-end displacement, placing stress on the anchors. This also causes an equal and opposite reaction within the solid body itself. This "self-balancing" reaction in the solid body itselfis called thermal stress.

11. CODE PROVISIONS FOR DESIGNING LINEAR TYPE SUPPORTS Code section NF-3230, " Design of Linear Type Supports by Analysis," is the controlling section for the design of linear supports.

~

The first subsection, which deals with " design, normal, and upset condi-tions" is controlling.

The reason this first subsection controls is not apparent frorn the Code itself. LOCA conditions are not design conditions, as is apparent from Code section NA-2141, which states:

32

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The temgratures. prewures, and mechanical loads to *hith components and sup-ports are subjected in consequence of plant or estem operating conditions are referred to in this Settion n component or support Design or Sersice Loadings This section does not apply either to emergency conditions or to faulted conditions, which are dealt with in the other subsections.

The reason that subsection (a) is applicable is by operation of Regula-tory Guide 1.124, a staff guidance document to which applicant is committed. The purpose of this regulatory guide is to provide service limits and loading combinations for class I linear-type component sup-ports because " failure of members designed to support safety-related components could jeopardire the ability of the supported component to perform its safety function." Regulatory positions 8 and 5(a) of that guide permit stress limits in pipe supports to be increased beyond limits that are otherwise applicable, provided that the increase is made pur-suant to the provisions of NF 3231.l(a).

That key subsection states:

The stress limits for Design. Normal. and Upsei conditions are identical and are given in Appendis XVit. The allowable stress for the combined mechanical loads 7

and efTects which result from constraint of free-end displacements (NF 321310),

but not thermal or peak stresses. shall be limited to three times the stress limits of X V!!-2000.

Now is the time that we reap the fruit of our careful consideration of the meaning of " free-end displacements" and " thermal stresses." With re-spect to pipe supports, loads on them from constraint of free-end dis-placements would be loads external to themselves, such as loads caused by the thermal expansion of pipes. Ilowever, the internal forces called thermal stresses are expressly excluded from consideration by this subsection.'

CASE has argued, hov.ever, that this subsection was never intended to cover LOCA-type thermal stresses. We accept that argument because of our interpretation of " design

. conditions" to which this section applies. Consequently, we also accept CASE's argument that the thermal stresses excluded by this subsection were primarily hot spots on pipe supports caused by the heating of pipes to which they were attached.

This analysis leads us to believe that, despite all parties' contrary beliefs, the question we are dealing with is not really a question of Code 3 Applesant and staff hate urged Ih.it me sonuder a sutwequent scrwon of the code Js reinfordng Our concluwnns atout thermat strewet Nr Code. Winter 1082 F dnion, seueon NF 3121 11 (c A51 I shit'ei 839. follommg Ir 6242) % c are urged in tonuder this reuwon meret) esplanatory and tlareliin t a

floocser, we do not need to deude whether to ver!) on this reuwon ticcause me are alread) (onunsed of the sneannig of the A%11' Code i

33

l interpretation at all. What we must determine is the intent of the staff of the Commission in applying this subsection to a purpose for which it was not originally intended.

It is our conclusion that the staffs reference to this subsection, for use in LOCA situations, has the effect of broadening the original intent of the Code. Regulatory position 5(a) of the Regulatory Guide (applied to emergency and faulted conditions by Regulatory position 8) rcTer-ences a Code section which included the language "but not thermal

. stresses." The meaning of that language, in light of the Code's defi-nition of thermal stresses, was to exclude all thermal stresses (internal to the solid body itself). Although this was broader than the-original intent of this Code section, as we have construed it, the staff could have anticipated this problem and could easily have provided (had it thought it necessary) that some kinds of thermal stresses must be considered. By remaining silent on this point, the Regulatory Guide appears to adopt the Code's definition of thermal stresses.

We are convinced that this interpretation is correct, in part because we are convinced that it is consistent witn plant safety. The thermal stresses from a LOCA are expected to occur at most once within the life of the plant. Obviously, these stresses are not cyclical. So there is no reason to consider whether they exceed twice yield (or three times the stress limits, which are two-thirds of yield).* Only repetitive loads that exceed twice yield will cause a support to break down into clastic action; shakedown into elastic action will not occur as the result of a single appli-(

cation of thermal stress.' Even for a thermal stress of about 200'F, a beam would expand only 0.001 inch per inch - a one-time stress that is i

well within the margin of safety applicable to pipe supports in nuclear plants.*

III. Tile BOARD'S ROLE At various times during the oral arguments concerning interpretation of the Code, the parties have expressed discomfort that the Board con-siders this a matter of legal interpretation of documents rather than of expert opinion. CASE has even argued that this Board cannot properly interpret the Code, which 'ies exclusively within the prerogative of ASME, which has procedures for obtaining Code interpretations.

8 Testimony or Mr. Mwhael vmrilo, applwanfs empert mitness. at Tr 5893 94 S /d at Tr. 5891-95.

• /J at Tr 58%

34

I Fortunately, our path through the legal materials led us to the conclu-sion that the key issue was the interpretation of a Regulatory Guide, in light of the Code. There could be no issue more clearly within the pre-rogatives of this Board. Ilowever, even were this a Code interpretation issue, we would still consider it our prerogative, in part because it is im-practical to delay licensing proceedings to await ASME action. Even more important is the responsibility of this Board to form its own inde-pendent conclusions about licensing issues. We do not believe that regu-lations that reference the ASME Code were ever intended to give over the Commission's full rulemaking authority to a private organization on an ongoing basis; nor do we think that a private organization was intend-ed to become the authority concerning criteria necessary to the issuance of a license.

ORDER For all the foregoing reasons and based on consideration of the entire record ir, this matter, it is this 6th day of July 1983, ORDERED That the legal interpretations contained in the accompanying memo-i randum are the opinion of the Board and are ordinarily subject to a motion for reconsideration only if it is filed within ten days of service of this decision. The deadline for filing of motions for reconsideration may be exceeded only if a party demonstrates good cause.

1 FOR Tile ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTR ATIVE JUDGE Walter H. Jordan ADMINISTRATIVE JUDGE Kenneth A. McCollom ADMINISTRATIVE JUDGE Bethesda, Maryland 35

O

.c Cite as 18 NRC 36 (1983)

LBP 83 34 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chairman Dr. Kenneth A. McCollom Dr. Walter H. Jordan in the Matter of Docket Nos. 50 445 50 448 (Application for Operating License)

TEXAS UTILITIES GENERATING COMPANY, ef al.

(Comanche Peak Steam Electric Station, Units 1 and 2)

July 6,1983 The Licensing Board holds that a decision of the Secretary of Labor, concerning discharge of a whistleblower by a major contractor of the applicant, is binding on the applicant by operation of the doctrine of col-lateral estoppel, Accordingly, facts necessary to the Secretary's decision and relevant to the licensing action are binding on thelicensing Board.

COLLATER AL ESTOPPEL There is sufficient identity of interest between applicant and a major contractor that an administrative decision by the Secretary of Labor against the contractor is binding against the applicant.

36

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MEMORANDUM AND ORDER (Collateral Estoppelt Atchison Case)

On June 10, 1983, the Secretary of Labor (Secretary) issued a Deci-sion and l'inal Order in Atchison v. Brown a Root. /m. That decision determined that Charles A. Atchison had been discharged from his duties as a Quality Control inspector on the Comanche Peak Steam Elec-tric Station project. The Secretary found that Atchison was fired for engaging in a protected activity and that Brown & Root's alleged reasons for firing him were pretextual.' The protected activities for which Atchison was fired were the filing of non-conformance reports and the reporting of defects outside the area of his responsibility.'

We find that each of the facts we have just cited was necessary to the Secretary's opinion and that they should be binding in this proceeding pursuant to the doctrine of collateral estoppel. The purpose of that doc-trine is to prevent unnecessary relitigation of matters that hase already been tried, consistent with concern for fairness to the parties involved.

The key criterion for application of collateral estoppel in this instance is the requirement that there be privity of parties in the two litigations.

The other criteria are more clearly met.

The uncertainty about privity is that the Secretary reached a decision concerning Brown & Root, Inc., which is a major contractor for the con-struction of piping at Comanche Peak but which is not the Texas Utilities Generating Company, et al. (applicant or TUGCO). So, strictly l

speaking, the defendant before the Labor Department was not applicant in this case. Nor was Brown & Root, Inc., defending as applicant's agent.

Nevertheless, we accept the suggestion of the State of Texas that appli-cant and Brown & Root, Inc., are so intricately intertwined as to make preclusion proper in this case. The companies are cooperating on an im-portant aspect of a multi-billion dollar venture. The quality assurance ac-tivities of Brown & Root, Inc., are subject to audit by applicant and appli-cant is responsible for those activities.

We also are impressed by Texas's argument that Mr. Brandt. a TUGCO employee, was directly involved in the process of firing Mr.

Atchison, showing the extent to which the activities of these two compa-nies are interwoven. Furthermore, there is every reason to beliese that Brown & Root was fully and competently represented in the Labor Departinent proceeding, giving applicant no incentive to participate 3 An &um. slip op at 15. are alw 11 12. It 17.

2 /J at 11 12.15.

37

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directly. On the other hand, if Brown & Root were incompetently represented, we believe that applicant's concern about its own reputation (because of its contractor's activities) would have led it to exert its in-Guence to see that the case would be more properly handled.

Although we do not consider any of the precedents provided to us on the privity question to be directly applicable, we have found for our-seives the case of Telephone it'orkers Union of bew Jersey, Local 827 v.

New Jersey Bell Tc/cphone Co.,584 F.2d 31 (1978), and we consider this case to be suggestive. In Tc/cphone ll'otActs, a worker won an arbitration award against the company, which refused to honor the award. Its reason for refusing to comply was a consent agreement previously en-tered into by the union in a case that did not involve this worker.

Nevertheless, the worker (who did not participate directly in the consent decree) was bound by the action of his union in the previous case.

Just as the worker was afTected by the action of his union, so too do we think that the applicant should be affected by the action of a major contractor.)

In this case, the interest in applying collateral estoppel is heightened by the quality of the labor department decision. The Secretary's opinion is carefully reasoned, explaining the interrelationships of facts in a com-plex factual record. It would be wasteful for us to begin over again.

As the Staff of the Commission (staff) has told us, the doctrine of col-lateral estoppel has been applied to administrative proceedings, such as the labor department proceeding. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182,7 AEC 210,212 (1974). Col-lateral estoppel applies if: (1) the issue for which preclusion is sought is the same as was involved in the prior action; (2) the issue was actually litigated; (3) the issue was determined by a valid Gnal judgment; and (4) the determination of the issue was essential to the prior judgment.

Florida Power d Light Co. (St. Lucie Plant, Unit 2), LBP-81-58,14 NRC 1167 (1981) discusses and provides authority for these criteria, and also discusses requirements concerning the burden of proof in the ditferent proceedings.

Since we are accepting only those Gridings of the Secretary that were both necessary to his decision and relevant to this case, criteria 1,2 and 4 are met. The Secretary's decision is conceded by all to be a Onal judgment.

hr d.cturn in Sowhrra Cahtorne f hma Co tsari Onofre Nu6 tear Gerieratirs Stainin. L'enis 1 and D.

AL AB-673.15 NRC 688. 695 96 t198D -The,tandard for deiermining whether rcrsons or org.inir.

tions are 30 closely related m miereu as to adequatel> represent one another in whetherl legal 46-countability belmeen the two groups or sirlual reprewnlation of one group 19 the other In shoen! "

38

We agree with the applicant that the Secretary's decision does not es-tablish the existence of a safety problem at Comanche. However, it does establish that there was an instance in which Brown & Root took action against an employee for reporting a quality assurance deficiency. Al-though applicant asserts that this is an isolated instance, we do not con-siiler our record to be sufficiently complete for us to derive that conclusion. In addition, we are in0uenced by the fact that the previous Board chairman called for the public interrogation of witnesses concern-ing quality assurance issues. As a result, a public hearing also is neces-sary in order to fulfill public expectations and enhance public confidence in the hearing process.

ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 6th day of July 1983, ORDERED That the findings made by the Secretary of the Department of Labor in Archison r. Brown d Roor. Inc.,82-ERA-9 Oune 10,1983) and dis-cussed i1 the accompanying memorandum are binding in this proceeding by application ofI's doctrine of collateral estoppel.

This Board ordsr ordinarily is subject to a motion for reconsideration only ifit is Gled within ten days of service of this decision. The deadline for filing of motions for reconsideration may be exceeded only if a party demonstrates good cause.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTR ATIVE JUDGE Walter H. Jordan l

ADMINISTR ATIVE JUDGE Kenneth A. McCollom l

ADMINISTRhTIVE JUDGE Bethesda, Maryland 39

O ME I

Cite as 18 NRC 40 (1983)

LBP 83-?S UNITED STATES OF AMERICA NUCLEAR GEGULATORY COMMISSION ATOMIC GAFETY AND LICENSING EIOARD Before Administrative Judges:

Peter B. Bloch, Chairman Dr. Kenneth A. McCollom Dr. Walter H. Jordan in the Matter of Docket Nes. 50-445 50-446 (AppUcation for Operating License)

TEXAS UTILITIES GENERATING COMPANY, et af.

l (Comanche Peak Steam Electric Station, Units 1 and 2)

July 6,1983 The Licensing Board responds to a Commission request by stating that it will no longer pursue evidence concerning the identity of indi-viduals who cooperated with a staffinsestigation but that its record is in-complete concerning whether or not applicant has discouraged the filing of non-conformance or deficiency reports. The Board designates a partic-ipating party, the State of Texas. to play an important role in pursuing that issue. It also asks the Commission's Staff to ;alay a role in insestigat-ing the problem.

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RULES OF T i.TCTICE: INTERESTED STATE U 0-.. e..

lances where public doubt has t.een cast on the elTicacy of ?, '..; y.

.n conducted by the Staff of the Commission. it is ap-pror ate to appint an interested State as lead intervenor for the purpose l

40 l

I t

of conducting discovery reiated to a portion of an admitted contention to which the questioned staff investigation was addressed. The interested state may also pursue questions concerning weave welding and downhill welding, questions within the knowledge of witnesses to which it will be speaking.

MEMORANDUM (Response to Commission Order of June 30, 1983)

On June 30, 1983, the Nuclear Regulatory Commission issued CLI-83-18,17 NRC 1037, which contained some questions for this Board to answer within ten days. This Memorandum is our response.

I.

IDENTITY OF INTERVIEWEES This Board will not pursue any questions concerning the identity of people interviewed for the preparation of Staff Exhibit 199 nr the nature of the participation ofindividuah in that Exhibit.

II. TENTATIVE SCllEDULE ON ATC111 SON-RELATED MATTERS By separate order of today's date, this Board has determined that a recent decision of the Secretary of Leoor concerning the dismissal of Charles A. Atchison is entitled to collateral estoppel effect in this proceeding. This establishes that one individual was discharged by appli-cant for reporting quality control deficiencies.

We believe that pursuit of the implications of the Secretary of Labor's decision requires us to inquire further into oncher or not there is a practice of discouraging quality assurance reports t the Comanche Peak l

Steam Electric Station. This further inquiry will occur during an evidenti-

'ary hearing scheduled for August 1-5, 1983, in Fort Worth, Texas.

To date, the only indication other than the Atchison decision that there may be a practice of discouraging such reports is that Texas Utili-ties Generating Company, er al.'s (applicant's) employee, Mr. Tom Brandt, issued a memorandum (Case Exhibit 853) requiring that certain non conforming conditions be reported on inspection reports rather than on non-conformance reports. See Tr. 8137-81. It is applicant's posi-tion that this practice had only one deficiency, which has been cured:

41

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-. m

a that inspection reports were not trended, Tr. 8534-39. There also may have been a physical separation or tagging problem, but that is no longer considered important. Tr. 8555.

We note that the parties have not yet filed their suggested findings on these subjects and that our discussion of the record is therefore tentatise

- for the purpose of assessing the current state of the record. flowever, the combined impact of the Archison determination and the Brandt memorandum is that our record is not complete concerning whether there has been a practice of discouraging non-conformance reports. (See also the testimony of Mr. Vega, who is responsible for applicant's audit program, that he has not audited quality control personnel records to determine whether quality control inspectors are disciplined or dismissed for lack of conscientiousness in reporting quality assurance deficiencies.

Tr. 6370-73.)

To this point, the Commission's staff (staf0 has never focused an in-vestigation on this precise point. The Atchison investigation focused on the firing of that one individual. The Construction Assessment Team focused on the paper records of non-conformances and never conducted any evidentiary investigation of this point.

There are several ways to make our record more complete. One would be to ask the stalT to present more evidence. In one respect, we consider this to be an appropriate way to proceed and have asked the staff to pursue this matter during yesterday's on the-record telephone confer-ence among the parties. We have suggested to the stalTthat it conduct a limited number (about five) of confidential interviews with non-supervisor quality assurance inspectors or craft personnel in order to determine whether there has been a practice of discouraging non-conformance reports. Staff counsel has expressed a willingness to initiate such an inquiry; and staff will inform the Board by July 8 concerning whether this investigation will go forward.

With respect to witnesses previously interviewed by the stalT, we think that the inconclusive nature of the previous staffinvestigation re-quires us to ask that some other mechanism be used to complete our record. The adequacy and reliability of this particular investigation were questioned by this Board. See Notice of Resumed Evidentiary Heanng.

March 4,1983 at 4 6 (unpublished). Subsequently, this Board has not pursued this publicly raised question of stalT performance. Although it does not now seem to the Board necessary to inquire further into the performance of the investigalise team, we do not think it appropriate to rely entirely on stalT to present further evidence to us from witnesses it interviewed in this particular investigation. StalT may, of course, present whatever evidence it desires on this contention.

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way around this dilemma would oc for the Board to question the witnew 's itself. Ilowever, we prefer not to adopt so adversary a role if it is avoidau!e. Therefore, we have decided to rely on a participant for this purpose. The. e is a party and an interested state. The party, Citizens Association for Sound Energy, is not represented by a lawyer. On the other hand, the State of Texas is so represented. Consequently, we ask the State of Texas to conduct discovery and be the lead participant for this portion of the contention. It has agreed to fulfill this role. It will in-terview each of the witnesses listed on pp.1-2 of our March 4,1983 order plus Dale Ballard, who was mentioned on p. 2 of the Atchison Statement (unpublished) of April 14, 1982, attached to the Order to Show Cause issued by this Board on August 4,1982 (LBP-82-59,16 NRC 533). The purpose of the State's discovery and trial-preparation ac-tivities will be to gather evidence relevant to the Quality Assurance Con-tention admitted to this proceeding. More specifically, it will interview witnesses in order to present evidence concerning the possible existence of a practice of discouraging the report of non-conforming conditions or deficiencies at Comanche Peak.

Compulsory process available in support of discovery will be available to Texas, if needed. Additionally, Texas may pursue leads or questions that arise during its discovery process and is not limited to the individu-als we have named in order to obtain information.

At applicant's suggestion, we have provided that Texas may, after pursuing its preliminary interviews (which one representative from each of the parties may attend), decide that there is no evidence for it to present. If so, it may file a statement seven days in advance of the sched-uled evidentiary hearing, statirig that it has no evidence to present and attaching affidavits of the witnesses in support ofits position.

Although the applicant has objected to these procedures, stalT, CASE and the State of Texas have not objected.

Ill. ADDITIONAL MATTERS As part of our review of questions raised in this proceeding prior to the appointment of the new Board chairman, we have ascertained, as a preliminary conclusion, that there are two open matters having to do with welding. These matters include weave welding, which is not pro-hibited unless transverse oscillation exceeds code standards, and down-hill welding, which also is acceptable in some applications. With respect to weave welding, there is an allegation that it had occurred. Applicant's explanation appears to be incomplete because it rests on: (1) a state-ment that some transverse oscillation is permitted, and (2) a statement 43

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that some weave welding has been reported on non-conformance reports. There apparently was no attempt to investigate further to ascer-tain whether there may be a real problem that has not come to manage-ment's attention. (See ir. 8635-39.) Similarly, applicant's response on downhill welding is that it is permitted in root-and cover pass welds.

Apparently, applicant assumes that those are the only welds that the person making the allegation could have any knowledge of. But the record does not show the scope of the alleger's knowledge, nor does it show any follow-up investigation to ascertain whether there were im-proper downhill welds that were made. (See Tr. 8640-44.)

We insist that allegations about defects in a nuclear plant be answered in a rigorous fashion. Consequently, we consider the record incomplete on these matters. Since the State of Texas will be interviewing some wit-nesses with possible knowledge of these matters, we have asked it to ex-piore these two open matters as well.

FOR Tile ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTR ATIVE JUDGE Bethesda, Maryland 44

G memes I

Cite as 18 NRC 45 (1983)

LBP-83-36 g

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Robert M. Lazo, Chairman Dr. Richard F. Cole Dr. A. Dixon Callihan in the Matter of Docket Nos. STN 50-529-OL STN 50-530-OL (ASLBP No.80-447 01-OL)

ARIZONA PUBLIC SERVICE COMPANY, et al.

(Palo Verde Nuclear Generating Station, Units 2 and 3)

July 11,1983 The Licensing Board denies motions by West Valley Agricultural Pro-tection Council, Inc. which ask the Board to rule that the NRC StalTs Final Environmental Statement (FES) does not meet the requirements of the National Environmental Policy Act (NEPA) and that the re-opened proceeding on Palo Verde Units 2 and 3 be continued until a supplemental environmental statement is published.

NEPA: FINAL ENVIRONMENTAL STATEMENT Defects in an FES can be cured subsequent to its issuance by the re-ceip; of additional evidence.

RULES 'OF PRACTICE: AMENDMENT OF FES A licensing board decision based on the evidentiary record before it shall be deemed to modify the FES.

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NEPA: JURISDICTION West Valley's request that a supplement to the FES-OL be prepared is beyond the Board's jurisdiction. New England Power Co. (NEP, Units I and 2), LBP 78-9,7 NRC 271,279 (1978).

RULES OF PRACTICE: AMENDMENT OF THE FES At the least, it must be determined that there is significant new infor-mation before the need for a supplemental environmental statement can arise. Warm Spring Task force v. Gribb/c. 621 F.2d 1017,1023-36 (9th Cir.1981). A resolution of the significance of the allegedly missing infor-mation and its need to be circulated in a supplemental environmental statement must await the outcome of a hearing.

MEMORANDUM AND ORDER I.

WEST VALLEY'S NEPA ARGUMENT On May 6,1983, West Valley Agricultural Protection Council, Inc.

(West Valley) filed a " Supplemental Motion for Declaration That NEPA Analysis is inadequate and for Continuance of Proceeding." In its sup-plemental motion West Valley renews its arguments respecting the issues raised in its motion filed February 2,1983, as to which the Board heretofore has not made a decision, namely, whether the NRC Staff's Final Environmental Statement (FES) meets the requirements of the National Environmental Policy Act (NEPA); and, if not, whether a sup-piemental environmental statement must be issued before the reopened hearing,s on Palo Verde Units 2 and 3 may proceed.

The basis asserted for filing the supplemental motion.is the alleged inability of joint Applicants to supply sufficiently detailed information in their interrogatory responses concerning the salt deposition issue and the failure of the NRC Staff to come forward with additional data since West Valley's intervention.

The earlier February 2,1983 motion was responded to by Joir.t Appli-4 cants and Staff by answers filed February 14 and 17,1983, respectively.

Further, West Valley's request was the subject of considerable debate between the parties at the prehearing conference held on February 24, 46

1983 in Phoenix, Arizona.' Both Staff and Joint Applicants urge the Board to deny the motion.

By letter dated May 23, 1983, counsel for Joint Applicants argue that West Valley's supplemental motion is impermissible under the estab-lished rules of practice,10 C.F.R. 4 2.730(c), which govern proceedings before the Board but, in the event the Board decides to consider the motion, request the opportunity to respond to such motion. No such re-sponse by Joint Applicants is deemed necessary. In its answer filed May 26,1983, the StafT has submitted a lengthy response supporting its posi-tion that West Valley's request for a new environmental impact state-ment and a continuance of this proceeding should be denied. We agree.

In its first motion West Valley requested that the Board rule formally that the enviranmental statements submitted by the NRC fail to ccmply with NEPA and order that additional data be developed to be used in the preparation of a supplemental environmental statement. West Valley further asked that any discovery or hearings in connection with its con-tentions be continued pend:ng " preparation by the NRC of an adequate environmental analysis." However. following oral argument during the February 24,1983 prehearing conference, all parties agreed that discov-ery would proceed immediately.2

1. The Commission's licensing boards have had frequent occasion to address supplementation and recirculation of a final environmental state-ment ("FES") in instances where it is alleged that there are inadequacies in the FES or that changes to the FES are required. The Commission has adopted the procedure that defects in an FES can be cured by the re-ceipt of additional evidence subsequent to issuance of the FES. See Eco/-

ogy Action v. AEC. 492 F.2d 998,1000-02 (2nd Cir.1974); florida Power d Light Co. (Turkey Point Nuclear Generating Station, Units 3 and 4),

ALAB-660,14 NRC 987,1013-14 (1981); Philadelphia E/cciric Co.

(Limerick Generating Station, Units 1 and 2), ALAB-262,1 NRC 163, 195-97 (1975). The Commission's regulations explicitly provide that a licensing board decision based on the evidentiary record before it shall be deemed to modify the FES:

In.. a proceeding lm which a hearing is held for the issuance of a permil. license or order), an initial decision of the presidmg oGicer ma) mclude Ondmgs and conclu.

sions which aGirm or modify the content of the Gnal enuronmental impact state-ment prepared by the staff. To the extent that Gndings and conclusions dinerent from those in the Gnal environmental statement prepared by the stafT are reached.

the statement will be deemed modined to that euent and the mitwIdemon wil! be

' See Tr 2734-57. 27o190. 2783-98. and 2800-52 2Ser Tr 2891.

47

O distributed as prouded in 4 51.2Mch if the Commission or the Atomic Safety and Licensing Appeal Board in a final decision reaches conclusions dillerent from the presiding ollicer with respect to such matters, the final ensironmental impact state-ment will be deemed modified to that extent and the decision will R imilarly datributed.

10 C.F.R. 4 51.52(b)(3). Three courts of appeal hase approved of this rule. New England Coalition v. NRC. 582 F.2d 87,93-94 (1st Cir.1978h Citi ens for Sa/c Power r. NRC, 524 F.2d 1291,1294 & n.5 (D.C. Cir.

I975); Ecology Action v. AEC. supra.

The Appeal Board has noted that there may be instances in which a deficiency in an FES may be so significant as to call for recirculation of the FES. In Turkey Point, supra, the Appeal Board considered an order of the Licensing Board authorizing the issuance of license amendments to effect steam generator repairs at Turkey Point. The Licensing lioard had found that the impact of a hurricane or tornado on low level waste to be stored at the plant during the repairs would not endanger the health and safety of the public. The intervenor in that case argued that NEPA had been violated because the Turkey Point FES did not treat the impact of severe storms on low level waste. The Appeal Board rejected that argument and also found no reason to require recirculation of the FES.

[T]he Grotenhuis and Gould aflidauts submitted by the stat? and licensee showed the consequences of a hurricane to be small. In sum. the FES did not disregard im-portant alternatises or broad areas of environmental impact, nor fail to apprise the pubhc of the nature of the project or its espected consequences. In these circum-stances we hold that the omission of discussion from the FES of the impact of sesere storms on low level waste was a minor faihng which did not call for recircula-tion of the FES. It was cured by ll'c evidentiary submissions to the Licensing Board and by the Board's decision.

/d. at 1014. West Valley's request that a supplement to the FES-OL be prepared is presently beyond the Board's jurisdiction based on the regulatory scheme established by the Commission and discussed in New England Power Co. (NEP, Units I and 2), LBP-78-9,7 NRC 271 (1978):

The Commission has estabhshed a carefully articulated regulatory scheme for the processing and adjudication of apphcations for the beensing of nuclear power plants.

The StatTis responsible for an evensive and contmuing resiew of massne amounts of data and plans related to the construction and operation of nuclear plants

.The Staff among other documents, produces the Safet) Esaluation Report (SER) and the Draf t and Final EnsironmentalStatemen't3 (DES and F1SL The stud-res and analnes ishis h result on these reports are made snJennJenth tes the Statt. and Ikensing twrds how no rule or authorarv in their preparation The reports themsches are subject to reuew and amendment by the Board in an adjudicator > setting. in 48

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M which all parties with a demonstrated interest may participate in evidentiary hearings, initial decisions on these matters are subject to appeal or sua sponte review a

by the Appeat Board, and by the Commission itself if it so elects. Accordingly, it is arparent that the Boarddoes not how any supernsory authom owr thatpart ofthe apph-cation reuew process that has twen entrusted to the Staff.

/d. at 279 (emphasis added, footnotes omitted). See Offshore Power Srs-rems (Floating Nuclear Power Plant 4, ALAB-489,8 NRC 194,206-07 (1978). Based on the NEP case, at this early stage of consideration of the salt deposition issue, this Board does not have the authority to order the Staff to prepare a new or supplemental environmental statement.

After a hearing, the Board might deny a license or require further devel-opment of a record to support an application, llowever, at this time, there is no basis in the record for determining that the environmental reports prepared by the Staff are inadequate or that the conclusions therein are incorrect.

2. In its supplemental motion West Valley claims that Joint Appli-cants' interrogatory responses establish that there is a significant lack of information regarding the salt deposition issue. From this it again argues that a new environmental statement needs to be circulated and this pro-ceeding snould be stayed until that is done.3 The short answer to these criticisms in West Valley's supplemental motion is that, as the record now stands, it has not been established that materialinformation is lack-ing in the previously prepared environmental statement or that such a lack would cause a need for preparation and circulation of a supplemental environmental statement. It must, at least, be determined that there is significant new information before the need for a supplemental environ-mental statement can arise. Warm Sp:ing Task Force v. Gribble,621 F.2d 1017,1023-36 (9th Cir.1981). Secondly, even if there should be new information, a supplemental statement need not necessarily be prepared 3 % est valley alleges that ihis lad of mformation as purportedly revealed by Jomi Apphcants' mierroga.

tor) rewon.es that-4l} Joint Apphcants base no present plans to monstor sahnity of spray ponds and esaporation ponds nor to monitor drift mass and drift droplet site distribution tinter No 29 Al.

121 Josat Apphcants have not in the past nor at present considered mater desahnisation as a salt drafi mitigation study tinter No. 33 & 35);

O) joint Apptecants have not in the past nor at present constdered bloadown treatment or mater recirculation as a salt drift mitigation strategy (inier. No 37 & 391 t4) Jomt Appbcants have not as yet deseloped a maintenance program for the PvhGs cochng tower drift chmmators tinier. No 51).

t5) Joint Apphcants do not have in their possession documents concerning ahy the " FOG" model was chosen to describe sah depoution patterns from P4 NGs tinner No 22) and (61 Jomt Apphcants hase failed to identify any mdneduals with the enception of the coohng tower sendor connected with the PvNGs project siih knowledge of alternaine cochng tower drift ehmmation systems (Inter No 52L (7) Jome Appbcants have failed to conduct an area crop salt tolerance stud) before completion of its Environmental statement tinier. No. 52).

49 l

1

l and circulated. Cali/ornia r. It'arr,683 F.2d 1253,1268 (9th Cir.1982);

see 40 C.F.R. ( 1502.9(c). The purportedly missing information (set out in note 3, supra) may not need to be included in an environmental state-ment and at this time cannot be said to be the basis for compelling the preparation and circulation of a supplemental environmental statement.

A resolution of the significance of the allegedly missing information and its need to be circulated in a supplemental environmental statement must await the outcome of a hearing.

II. INTERVENOR PATRICIA LEE IIOURillAN'S MOTION FOR LEAVE TO FILE RESPONSE TO WEST VALLEY'S MOTION Responses to West Valley's February 2,1983 motion from all parties excepting the NRC Staff were due on February 14, 1983. On February 23,1983, Patricia Lee Hourihan submitted a response accompanied by a motion for leave to Gle the admittedly late response. The only excuse furnished by Ms. Ilourihan for her tardiness in responding to West Val-ley's motion is that her attorney is located in Washington, D.C., and Dr.

Robert 11. Turne, whose supporting affidavit was believed to be necessary, is located in California.

The Board l'as de' ermined to dismiss Ms. liourihan's response on the grounds that it is a late, unauthorized filmg and there has been no show-ing of good cause to justify its acceptance. Accordingly, Ms. liourihan's motion of February 23,1983 for leave to file a late response, is demed.

On March 20, 1983, Ms. Ilourihan filed a response to Joint Appli-cants' and Staffs Answers to the pleading filed by her on February 23, 1983. Thereafter, on April 16, 1983, a " Supplemental Response" was filed by Ms. Hourihan. Both of these filings have been disregarded be-cause under the Commission's Rules of Practice, a reply to another party's answer is forbidden except when leave is granted under special circumstances.10 C.F.R. ( 2.730(c).

III. ORDER For the foregoing reasons and in consideration of the entire record in this matter, it is this 1Ith day of July 1983, ORDERED West Valley's February 2,1983 Motion for Ruling on Contentions, for Declaration That NEPA Analysis is inadeqtiate and for Continuance of Proceedings is denied; 50

West Valley's May 6,1983 Supplemental Motion for Declaration That NEPA Analysis is inadequate and for Continuance of Proceedings is denied; Patricia Lee Hourihan's Motion of February 23, 1983 for Leave to l

File Response to West Valley's Motion is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Robert M. Lazo, Chairman ADMINISTR ATIVE JUDGE s

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s.

Cite as 18 NRC 52 (1983)

LBP 83-37 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. James C. Lamb Mr. Ernest E. Hill in the Matter of Docket Nos. STN 50 498-OL STN 50-499-OL (ASLBP No. 79 421-07-OL HOUSTON LIGHTING AND POWER COMPANY, et al.

(South Texas Project, Units 1 and 2)

July 14,1983 The Licensing Board denies a motion by an intervenor to add a new financial qualifications content;on to the proceeding. The Board also de-clines to recommend to the Commission. pursuant to 10 C.F.R. 4 2.758, that the regulation prohibiting consideration of the linancial qualitica-tions of regulated utilities be waived for this proceeding.

OPERATING LICENSES: CRITERIA (FINANCIAL QUALIFICATIONS)

Financial qualifications to " construct" a facility is not - and was not prior to the 1982 amendment to the rule governing consideration of an rpplicant's qualifications - a subject open to consideration at the operat-ing license stage of review.

I S2

m RULES OF PRACTICE: NONTISIELY SUB311SSION OF s

CONTENTIONS Given a proceeding that was initially noticed in 1978 and for which the Special Prehearing Conference was held early in 1979, any conten-tions Gled in 1983 would perforce be untimely and could be admitted only upon a balancing of the factors listed in 10 C.F.R. ( 2.714(a)(1).

RULES OF PRACTICE: NONT151ELY SUB311SSION OF CONTENTIONS Ability to contribute to the record is relevant to the admissibility of late. filed contentions (as distinguished from timely contentions, where the factors in 10 C.F.R. ( 2.714(a) are not applicable).

RULES OF PRACTICE: CilALLENGE TO C051511SSION REGULATIONS The sole ground for obtaining an exception or waiser to a Commission regulation is that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted.10 C.F.R. 4 2.758(b). Unusual and compelling circumstances must be shown.

TECilNICAL ISSUE DISCUSSED Financial Qualincations.

MEMORANDUM AND ORDER (Denying Slotion for New Contention)

On March 18, 1983, Citizens Concerned About Nuclear Power (CCANP), an intervenor in this operating license proceeding, Gled a motion for admission of a new contention, dealing with the Applicants' financial qualifications to " complete and operate" the South Texas Nuc! car Project (STNP). (On March 29, 1983, CCANP submitted cer-tain corrections to its motion.) The Applicants and NRC Staff each oppose admission of the contention. As authorized by us in our Memo-randum and Order dated May 11,1983 (unpublished), CCANP filed a reply to the substantive arguments of the Applicants and Staff on its 53

l o

l contention. For reasons hereinafter set forth, we decline to admit the contention or to certify CCANP's request to the Commission (pursuant to 10 C.F.R. 6 2.758(d)).

1. CCANP seeks to add its new contention to the i.ssues to be consid-ered in Phase 11 of the proceeding.' In its current form, the contention i

challenges the Applicants' financial qualifications to complete and oper-ate" the STNP on two grounds:

1. A December,1982 Final Order of the Public Utility Commis, l

sion of Texas (PUC) which allegedly concludes that flouston Lighting & Power Co. (HL&P) has mismanaged the STNP and indicates that ilL&P may not be allowed to recover all ofits in-vestment in STNP; and

2. A suit filed against IIL&P in January,1983 by the City of Austin, one of the participants in the STNP, seeking a refund of all investment by Austin to date and assumption by HL&P of Austin's STNP obligations.

Earlier, we had denied CCANP's motion to reopen the Phase I record to include a contention raising similar factual questions. Memorandum and l

Order dated January 10,1983 (unpublished).2 The Applicants and Staff each oppose the present contention as untimely, and as encompassing an issue which is not litigable in an NRC licensing proceeding. They also claim that CCANP has not satisfied the substantive or procedural requirements of 10 C.F.R. % 2.758 for obtain-ing a waiver of the general rule barring litigation of financial qualifica-tions issues in proceedings involving regulated public utilities.

We note at the outset that our entire discussion will focus on the con-tention only insofar as it raises questions concerning the Applicants' financial qualifications to " operate" the STNP As the Applicants observe, fincncial qualifications to " construct" a facility is not - and was not prior to the 1982 amendment to the rule governing cons.dera-tion of an applicant's financial qualifications - a subject open to consid-eration at the operating license stage.10 C.F.R. l 50.33(f) (1982); see Clere/and Electric ///uminating Co. (Perry Nuclear Power Plant, Units 1 &

2), LBP-81-24,14 NRC 175,192-95 (1981). The qualifications of these l

Applicants to construct the STNP were considered during the construc-I tion permit review and found to be sufficient. Houston Lighting & Power Co. (South Texas Project, Units I and 2), LBP-75-71, 2 NRC 894, l

l 3 This proceeding has been divided into three separate phases. See Fourth Prehearms Conference

(

order. dated December 16.1981 (unpubhshedt 2 That contention sought to raise the mismanagement allegations as a " character and competence."

rather than a rinancial quahfications, question 54

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914-16 (1975), aff d. ALAB-306,3 NRC 14 (1976). Nor was the Appli-cants' financial qualiGcations to complete construction of the STNP one of the construction-related matters which the Commission authorized us to litigate in CLI-80-32,12 NRC 281 (1980). The proper avenue to reopen that matter and to factor in significant new developments (were they to exist) would be through a petition filed under 10 C.F.R. ( 2.206.3

2. Tuining first to the timeliness question, the Applicants and Staff correctly claim that the contention was not timely filed. Indeed, given a proceeding that was initially noticed in 1978 and for which the Special Prehearing Conference was held early in 1979, any currently filed con-tentions would perforce be untimely. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP 82-63,16 NRC 571,577 (1982). But we dis-agree with the Applicants and Staff as to whether, after balancing the fac-tors in 10 C.F.R. ( 2.714(a), the untimeliness should bar the admission of this contention. Since we believe that the contention should not be admitted for other reasons, we will treat the timeliness question only briefly.

We regard the PUC final decision (dated December 6,1982) and the filing of Austin's suit (on January 6,1983) to be critical elements in CCANP's proposed contention. CCANP's prior knowledge of the PUC hearing examiner's report (as amended on November 16,1982) would not have been sufGcient to support a Gnancial qualineations contention, since it did not constitute final PUC action. Nor would knowledge of tentative plans by Austin to file suit against HL&P: as CCANP points out (reply dated June 2,1983, at p. 9), " hiring a lawyer does not guaran-tee a suit will be filed. Furthermore, the general economic conditions to which reference is made in the contention - which clearly were de-veloping over an extended period of time - appear to be background for, rather than a constituent component of, the contention.' CCANP's filing of its present contention within two to three months after the events which (in CCANP's view) gave substance to the' contention was reasonably prompt. We find that CCANP has demonstrated " good cause" for its delay until March 18,1983 in Gling its contention, within the meaning of 10 C.F.R. ( 2.714(a)(1)(i).

As for the other factors, all of them either dictate that the contention not be rejected cn timeliness grounds or are neutral in that regard.

3 Whether an adjudicatory proceeding should be instituted as the result of such a petition would not be acted upon by this Board 10 C F R 44 2 202 and 2 206. we note, however, that the current Commisuon a

pohey on consideration of an apphcant's rinancial quahfications, which we discun later in this opinion.

would be reic$ ant to (and possibly dispositise on such a petition.

4 As we carher pointed out (p 54. surra). CCANP also tried - unsuccessrully - to ha$e certain aspects of the contention added to the Phase I record.

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CCANP's interest could not be adequately protected by other means, including the Texas PUC. While the PUC could consider the Applicants' financial ability to meet safety requirements, the only relief it could grant would be to increase rates or require the reduction of other ex-penses to a point where the safety requirements could be funded, it could not deny a license (as could NRC) because of lack of Gnancial capability. Although not demonstrating any particular financial expertise, CCANP could assist through cross-examination or possible expert witnesses in developing a sound record on this matter (which would not appear to require the same quantum of expertise as do many technical safety and environmental questions).* We regard this factor as neutral. No party disputes that CCANP's interest in the proposed con-tention will not be represented by existing parties. And although some broadening of the issues and delay in hearings might result from admis-sion of the contention, no delay in this extended proceeding (where con-struction on either unit is not scheduled to be completed prior to December 1986) would likely result. We balance the latter factor as neutral.

In sum, the final balance of the factors in 10 C.F.R. ( 2.714(a)(1) dic-tales that the contention not be rejected on timeliness grounds.

3. The crucial question regarding the admissibility of CCANP's pro-posed contention is whether a financial qualifications question of the sort proposed by CCANP can or shou ld be litigated in an operating license proceeding. Effective March 31, 1982, the Nuclear Regulatory Commission amended its rules to eliminate the financial qualifications issue from both construction permit and operating license proceedings.

47 Fed. Reg. 13,750 (1982). All parties recognize this development.

Were it not for this rule change, we might likely have accepted at least certain aspects of CCANP's contention for litigation either in Phase 11 or Phase 111 of this proceeding. As a result of the rule change, CCANP is seeking a waiver of the rule pursuant to 10 C.F.R. ( 2.758, which establishes a procedure for obtaining an exception or waiver on the sole ground that w

IContrary to CCANP's claim. ability to contribute to the record as relevant to the admimbihty or late.

riled comentions (as distmguished rrom timely contentions. where the ractors m 10 e I' R 4 2 714(a) are not apphcable) 56

special circumstances with respect to the subject matter of the particular proceeding are such that apphcation of the rule or regulation (or prostsion thereoD would not serve the purposes for which the rule or regulation was adopted.

10 C.F.R. f 2.758(b).6 t

CCANP asserts that the rule barring consideration of financial qualifi-cations contentions was adopted on the premise that the previous finan-cial qualifications review did not help identify health and safety concerns regarding utility-operated nuclear power plants because prudently managed, regulated utilities are "almost guaranteed sufficient revenues to enable them to meet their needs" (June 2,1983 reply, p. 2). CCANP contends that the Commission expected utilities facing financial ditTicul-ties to cancel or postpone plants, and that a utility that persisted in the construction of a nuclear plant even when the cancellation of the plant is called for by the economic conditions facing the utility would be acting outside the normal bounds the Commission expected to be observed by such utilities (June 2,1983 reply, p. 3). In CCANP's opinion, HL&P is currently a utility of that type.'

As part of its argument for waiver of the financial qualifications rule, CCANP also questions the efficacy of the Region IV inspection efTorts.

CCANP refers in particular to instances in 1979 where Region IV failed to uncover certain activities but where the special inspection organized at headquarters found violations with respect to those activities.

In opposing the motion, the Applicants and StafT assert that the cir-cumstances pointed to by CCANP were contemplated by the Commis-sion when it adopted the new rule. They claim that CCANP has not made a primafacie demonstration of the " unusual and compelling cir-cumstances" needed to warrant a waiver. See Northern States Power Co.

(Monticello Nuclear Generating Plant, Unit 1), CL1-72-31, 5 AEC 25, 26 (1972).

In general, we agree in substance with the views advanced by the Ap-plicants and Staff. But in our opinion, all parties have overlooked one significant aspect of the background of the new financial qualifications rule which makes the outcome sought by the Applicants and Staff even more compelling. The Commission's opinion in the ScabrooA proceed-ing - which was the genesis of the rule change barring consideration of 6 As the Apphcanis and stafreach point out, CCANP has not seusfied the anidaut requerement of this rule. But as me noted in our Ma) 11.1983 Memorandum and order tunpubhshed), if me mere to agree with CCANP as to the substanine uabehty of its contenison. me might meH permit ec ANP io supple-ment its earher fihngs to conrorm to the afridaut requirement Cmen the contluwens me are reathing in this opinion, me need not devote further docuswon to the athente of proper afTedauts

' But <t. noic 8. mira.

57

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[

f financial quali0 cations contentions in licensing proceedings - stressed, inter alia, the duty of State regulatory bodies to approve such rates as are nscessary to enable a regulated utility to fulfill obligations imposed upon it by its nuclear facility licenses. Public Serrice Co. of New Hampshire (Seabrook Station, Units I and 2), CLI-78-1,7 NRC 1,14 (1978), quor-ing approvingly from ALAB-422, 6 NRC 33, 77 (1977). Indeed, in its opinion, the Appeal Board strused the legal obligations of State agencies (as defined in Supreme Court decisions) to establish rates designed to cover costs engendered by nuclear facility licenses. ALAB-422, supra. 6 NRC at 77-78, citing Federal Power Commission v. Hope Natural Gas Co.,

320 U.S. 591,603 (1944).

Although the Commis:iion indicated that, under then-current regula-tions the Appeal Boaro may have over-emphasized the importance of the legal obligations governing State regulatory authorities (CLI-78-1, supra. 7 NRC at 18,20), those obligations nevertheless persist today. In our opinion, they now assume greater significance, since they constitute the basis for the Commission's differentiation in its current regulations between utility and non-utility applicants. For that reason, they are perti-nent in determining whether a waiver of the current financial qualifica-tions rule is warranted.

The general obligations to which State regulatory bodies must adhere are particularly relevant to the most important reason assigned by CCANP for waiving the new regulations - the recent Final Order of the Texas PUC. That ruling (dated December 6,1982) granted in part and denied in part a raie increase request ofIIL&P. CCANP deems as impor-tant to its requested waiver the portions of that ruling which (1) discuss mismanagement by llL&P; (2) for that reason refuse to permit ilL&P to include in its rate base some of the expenses of the cancelled Allens Creek Nuclear Project; (3) comment that the STNP is also being mismanaged; and (4) warn llL&P that STNP costs attributable to mis-management will not be recoverable. llaving reviewed the PUC Order, together with the portions of the hearing examiner's report and PUC Commissioners' comments which CCANP provided us, we find no indi-cation that the Texas PUC is not taking into account llL&P's resenue requirements Iar successfully meeting the obligations of its NRC licenses. Nothing in the PUC decision would appear to derogate from

" ~

the presumption which the NRC stated would underlie its then-proposed and now-effective rule - i.e., that " regulated electric utilities... will be able to meet the costs for safe construction and operation" of a nucle-ar facility. 46 Fed. Reg. 41,786,41,788 (1981)..All that the PUC appears to be 'doing is penalizing (or threatening to penalize) IIL&P for mismanagement by setting rates designed to yield somewhat less return 58

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r than HL&P would have been (or will be) allowed to earn absent such mismar.agement.

The situation we have described scarcely constitutes the type of unusual circumstance necessary to bring about a waiver of the current financial qualifications rule. Indeed, the Texas PUC seems to be filling the role envisaged by the NRC winen amending its regulations and in effect delegating the financial qualifications review to State regulatory bo' dies. When NRC changed its rules, it could not have contemplated that any utility covered thereby would never have financial difficulties or that a State would never deny a utility some of the return it was seeking. In our view, decisions like the Texas PUC Order would logically have been anticipated by NRC when it amended its rules.8 The other circumstance relied on by CCANP presents even less of a case for waiver than does the Texas PUC decision. Austin's suit has been filed, not won; and even were Austin to succeed, we have not been shown that IIL&P would be so adversely affected that it could not fulfill its NRC regulatory obligations. As for the generally deteriorating financial condition of the nuclear industry, to which CCANP refers as background to its motion, the NRC explicitly referenced that condition when it amended its rules.

Finally, we are aware of NRC's intent to utilize its inspec-tion / investigation resources to help assure itself that utilities which have a need for operating funds will not skimr on complying with regulatory requirements. Seabrook. CLI-78-1, supra. 7 NRC at 19; 47 Fed. Reg. at 13,751. We are also aware that the inspection activities carried on by Region IV have not always been completely efTective. Nonetheless, there has been significant reorganization and restructuring of NRC's in-spection functions in the recent past. Moreover, the asserted 1979 defi-ciency in Region IV activities to which CCANP has called our attention (June 2,1983 reply, pp. 6-7) was well known to the Commission when it amended its financial qualifications rule. In addition, as is reflected by the special inspection conducted in this case, NRC's inspection resources are not limited to inspections conducted solely by field office personnel. In short, CCANP has not brought forth any circumstances concerning NRC's investigatory efforts which would cause us to dif-ferentiate this proceeding from the general run of proceedings and to s We note that HL&P's determmation to cancel the sliens Creek project is consistent with the especto hons expressed by the Commission ehen it amended its financial quahrications regulations. We also note that the Texas PUC does not appear to hase raised any question about HL&P's prudence in con-tenums to construct the sTNP. Src Heanns Examiner's report, p. 28.

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recommend a waiver of the bar to considering financial qualifications contentions.

For the reasons stated, it is this 14th day of July 1983, ORDERED That CCANP's motion for a new contention, including CCANP's re-quest that we recommend a waiver of the regulation barring the consid-eration of financial qualifications contentions, is denied.

FOR Tile ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTR ATIVE JUDGE

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O Cite as 18 NRC 61 (1983)

LBP-83 38 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chairman Dr. Jerry R. Kline Mr. Glenn O. Bright In the Matter of Docket Nos. 50 440 OL 50 441-OL CLEVELAND ELECTRIC ILLUMINATING COMPANY, et af.

(Perry Nuclear Power Plant, Units 1 & 2)

July 12,1983 The Licensing Board holds that it would have jurisdiction to decide issues raised in an operating license proceeding that would control whether or not it was appropriate to issue a license to receive unitradiat-ed fuel at the reactor (a Special Nuclear Material License), but that inter-venors must first raise an admissible contention that calls into question applicant's ability to receive and care for spent fuel safely. It finds that no such issue has been raised, and the filing of an application for a spe-cial nuclear material license does not give intervenors a fresh opportuni-ty to raise questions that have been available to them since the Notice of Hearing in this case was issued. Consequently, the Board denies the ad-mission of a contention concerning the Special Nuclear Material License.

ee' SPECIAL NUCLEAR MATERIAL LICENSE: JURISDICTION IN OPERATING LICENSE PROCEEDING A Board in an operating license case has jurisdiction over properly raised contentions and may enter orders conceriting a related special 61

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nuclear material license application providing that the orders are related to the admitted contentions. Ilowever, the filing of an application for a special nudear material license does not create an opportunity to file fresh contentions about matters that have previously been part of the public record.

RULES OF PRACTICE: JURISDICTION OVER SPECI AL NUCLEAR MATERIAL LICENSE IN OPERATING LICENSE PROCEEDING See SPECIAL NUCLEAR M ATERI AL LICENSE.

i RULES OF PRACTICE: NEW CONTENTION ON SPECI AL NUCLEAR MATERIAL LICENSE A late-liled contention concerning issuance of a special nuclear mate-rial license must meet all the criteria for a late-filed contention, including a showing of good cause for late filing. If the questions raised were al-ready available in the record prior to the filing of the application for a special nuclear material license, the filing of the application does not by itself create good cause for late filing.

RULES OF PRACTICE: ENVIRONMENTAL IMPACT

[

STATEMENT FOR SPECIAL NUCLEAR MATERIAL LICENSE It is sufficient that an environmenta: impact statement is prepared con-cerning the granting of an operating license;it is not necessary to prepare a separate statement concerning the receipt of unirradiated fuel or of other plant components, on the assumption that receipt of the compo-nent will not be followed by completion of the plant. A single environ-mental impact statement covering the entire construction and operation of the plant includes within it the component steps involved in the project.

MEMORANDUM AND ORDER (Late Contentions: Special Nuclear Material License Application)

On May 10,1983. Ohio Citizens for Responsible Energy ("OCRE" or "intervenor") sought to file late contentions that could block Cleveland 1

)

62 1

M Electric illuminating Company, er al. (applicant) from receiving unitra-diated reactor fuel and associated materials. The occasion for the filing of these contentions was that OCRE had just learned that applicant nad

' requested an application for a Special Nuclear Material (SNM) license on August 30, 1982. OCRE became aware of this application early in April 1983 when it received correspondence in which the Staff of the Nuclear Regulatory Commission (staf0 requested applicant to supply some additional information about the SNM application.

We find that the factors controlling the admission oflate-filed conten-tions' are not met in this case. Ilence, these contentions may not be ad-mitted in this proceeding.

Although OCRE claims to have been ignorant of the filing of the SNM application, we agree with stalT that this ignorance is irrelevant.2 From the outset of this proceeding, in which applicant requests an operating license, it has been apparent that it would have to receive unir-radiated fuel some time prior to low power testing. The Commission's procedural rules govern the way in which such an application is to be filed and the criteria governing that application.

If OCRE had advanced an admissible contention that called into ques-tion the wisdom of granting an SNM license, we believe that we would have jurisdiction over that contention and over the related question of whether to stay the elTectiveness of any license that might be issued.

Whether or not we could grant or deny the application before staff acted is merely a wording formality that would have had no substance were such a contention before us. See Parvic Gas and E/cctric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI-76-1, 3 NRC 73 (1976); Cincinnati Gas and E/cciric Co. (William 11. Zimmer Nuclear Station), LBP-79-24,10 NRC 226 (1979).

liowever, OCRE has, with one exception, failed to rely on any rele-i vant new material that was not available from the onset of this l

proceeding. That one exception, related to staff guidance requiring appli-cant to demonstrate that its unirradiated fuel will not become critical if immersed in a mist environment, is now moot. Applicant has amended its application so that it is no longer attempting to show that its fuel casing will prevent the occurrence of a mist environment. So applicant will meet the letter of the stafTs requirement, and OCRE has withdrawn Ihis contention.

t l

8 10 C V R 2 714taHI L,

7 Stati Answer IJune 13.198D al 5-6

%one of the the nem umieniums ben arguabh irrears to ts-based on nem anformation appeanns en the appination for a wparaic materiah IAense "

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OCRE has also argued, citing a September 5,1982 newspaper article, that Perry has experienced a variety of vandalism incidents that could in-dicate sabotage. Ilowever, OCRE has not provided a sufficient logical link between this "new" information and a reason for us to question the adequacy of the applicant's program for safeguarding its fuel. The occur-rence of Ove instances of vandalism, each of which was important al-

)

though only one was in a safety-related system, should be cause for ap-plicant to be concerned; but it is not reason for us to believe that there are important gaps in applicant's safeguards system that would jeopardize the safety of unitradiated fuel.

We conclude, therefore, that there was no good cause for late filing for these contentions and that the other factors governing late-filing do not overbalance this deficiency. There was another remedy: participa-tion in the SNM licensing proceeding; although OCRE did not learn of that proceeding, it could have. There has been no showing of how OCRE could participate in the development of a sound record about this particular contention. Although OCRE's members' safety could be af-fected if the special nuclear materials were first irradiated and then dis-persed in an accident, there has been no showing of any plausible mecha-nism through which this could occur; hence, OCRE's interests do not weigh heavily in its favor on this issue. Additionally, admission of new contentions would broaden this proceeding and cause a risk of delay; however, this factor is close to neutral because we do not believe delay is a serious problem in this case.

On balance, these contentions are not admitted because they have failed to meet the late-filing criteria.

As i; our custom, we also have considered the possible safety signifi-cance of the contentions. liowever, we find nothing that rises to the status of an important safety issue. Most of the issues are economic. Not only are they expressly barred from consideration by the regulations but they do not raise serious safety issues with respect to unitradiated fuel.

The principal argument - that the fuel will be stored longer than necessary, seems to be an argument of minimal economic importance.

Applicant concedes that three months of storage might cost $300,000, but we think it concedes too much. It is obvious to us that the fuel must 7 ~.

be delivered at some time before fuel loading. Delivery on the day of loading would cause certain economic risks Various economic factors related to arranging for a favorable purchase and appropriate transporta-tion would introduce uncertainties about how much lead time would be appropriate. We see no basis for believing that a three-month lead time for receipt of materials is inappropriate. (The argument that applicant's 64

M economic condition is so shaky as to endanger its ability to care properly for unirradiated fuel lacks credibility.)

OCRE also argues that applicant is not qual;fied by reason of training and experience to receive unirradiated fuel. It relies on a transcript of an ACRS meeting and also on contradictory arguments that: (a) applicant has never operated a nuclear plant, and (b) that its participation in the operation of the Davis-Besse and Beaver Valley plants does not inspire confidence in its ability. To (b), applicant responds that it has no own-ership in Beaver Valley and does not operate Davis-Besse. To (a), appli-cant responds that a license to receive nuclear materials is not a license to operate and that there is no logical link between lack of operating ex-perience and inability to receive and protect unirradiated fuel. With this we entirely agree. (Since there is no admitted contention on training and experience to operate, this area of review of the application is the re-sponsibility of the staff and not of the Licensing Board. We hase no reason to doubt stafTs competence in pursuing this issue.)

Intervenors also have argued that a separate environmental impact statement is required for an SNM license. Not only is this contrary to the regulations, but it is contrary to common sense. An environmental impact statement has been done for the operating license application, including the delivery of fuel. There is no need for each component to be analyzed separately, on the assumption that the plant may never be licensed to operate.

l Finally, OCRE argues that applicant must demonstrate that it will l

comply with local laws concerning the shipping of nuclear fuel.

flowever, the granting to it of an SNM license will not excuse it from complying with all valid laws and regulations governing shipment of fuel. If it cannot comply with those laws, its SNM license will be value-less to it. Consequently, there is no reason to believe that the granting of the SNM license should be deferred until after the applicant shows its compliance with these laws.

OCRE's brief also contains an argument that troubles us for its con-cept of public confidence in this proceeding. OCRE argues that the grant-ing of an SNM license will have the symbolic meaning to the public that an operating license must be granted and that the public will lose confi-dence in our proceeding if the SNM license is granted. This is entirely illogical. If OCRE had valid late-filed contentions, we would admit them to the proceeding. If its contentions are not valid, we will not admit them. Our ruling stands for nothing more or less than the application of l

the law to the facts presented to us. There is no relationship of this l

ruling to the grant or denial of an operating license. We believe that a i

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Licensing Board which acts thoughtfully and deliberately this time can be counted on to act thoughtfully and deliberately in the future.

l ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 12th day of July 1983, ORDERED None of the contentions filed by Ohio Citizens for Responsible Energy on May 10,1983, is admitted as an issue in this proceeding.

Tile ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTR ATIVE JUDGE l

Jerry R. Kline l

ADMINISTRATIVE JUDG E l

Glenn O. Bright ADMINISTR ATIVE JUDGE Bethesda, Maryland t

66

M Cite as 18 NRC 67 (1983)

LBP 83 39 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence Brenner, Chairman Dr. Richard F. Cole Dr. Peter A. Morris In sne Matter of Docket Nos. 50 352-OL 50-353-OL PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2)

July 26,1983 in a special prehearing conference order, the Licensing Board rules on the admissibility of pending safety contentions, admitting three conten-tions and excluding nineteen. Before addressing the admissibility of l

specific contentions, the Board concludes that safety contentions con-cerning the probabilistic risk assessment (PR A) done for Limerick would be admissible only if they alleged that the PRA identified a partic-ular design problem for Limerick. The Board leaves open the question of how PRA contentions should be litigated when they relate to the Na-tional Environmental Policy Act, 42 U.S.C. ( 4332, review of plant operations.

RULES OF PRACTICE: ADMISSIBILITY OF CONTENTION l

Good cause for the untimely filing of a contention based on a newly available document may be lost by waiting to see what action another party will take in reaction to the document.

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RULES OF PRACTICE: ADMISSIBILITY OF CONTENTION When a document becomes available, contentions based upon it must be Gled promptly to preserve good cause for an untimely contention al-though the document may be incomplete.

PROBABILISTIC RISK ASSESSMENT CPRA)

In the context of health and safety (as cpposed to environmental) issues, litigation related to the choice of methodology used to develop the PRA would not be profitable. Ilowever,if the PRA indicates a partic-ular design problem with the plant, that may te litigated.

REGULATIONS: INTERPRETATION (GENERAL DESIGN CRITERlON 64)

" Postulated accidents" as used in General Design Criterion 64 is a term of art meaning design basis accidents.

RULES OF PRACTICE: ADMISSIBILITY OF CONTENTION A contention which merely recites unrtlated adverse Ondings in reports of quality assurance inspections and audits performe<' by the Staff and Applicant is not admissible.

SECOND SPECIAL PREHEARING CONFERENCE ORDER s

The Board helC a special prehearing conference in Philadelphia on May 911,1983, to discuss proposed contentions and further scheduling of these proceedings. On May 16,1983, we issued a " Memorandum and Order Confirming Schedules Established During Prehearing Confer-ence" (unpublished). Our order today provides further rulings on the basis of that special prehearing conference, including rulings on the ad-missibility of contentions and the provision of specific dates for schedules which were previously described only in terms of triggering events.

In its filings prior to the special prehearing conference and at the con-ference itself, LEA (Limerick Ecology Action) indicated that a number of contentions were being dropped. These are Contentions 1-1; I-2; 1-5; l 6; l-13; l-16(c)-(j); l-17; l-18; l-19; l-20; l-21; l-22; l-24.1-25; l-27; 68 e

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l-28; l-29; I 32; l 33A, C, F, G, H, I & L; i 34; I-35; I 36; I-37; l-39; 1-43; l-44; l 46; l 55; l-56; I 59, and I 61. In addition, LEA dropped Contention 13 in its hiay 31,1983 " Response to Licensing Board's Order of hiay 16,1983."

In our hiay 16, 1983 hiemorandum and Order, supra. Contentions 1-33B, D, E & K and I 45 were denied without prejudice. LEA was per-mitted to respecify them by June 15,1983. LEA's counsel, in a letter to the Board dated Jct:e 10,1983, indicated that LEA was no longer inter-ested in pursuing Contentions 1-33B & K and I-45 because the conten-tions were satisfied. As to Contention 133E, LEA stated that it may submit new contentions when more information is available from the Applicant. According to LEA, the issue in Contention I-33D,is being pursued by the NRC Staff, and LEA may at some future time submit a contention on it if LEA is not satisfied with the Staff's resolution of the matter.

When information is not asailable, there will be good cause for filing a contention based on that information promptly after the information becomes available. See Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-687,16 NRC 460, 469-70 (1982). The Commission has recently ruled that the five statutory factors must be balanced in determining whether to admit such a contention filed after the initial period for submitting contentions. DuAe Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041,1045 (1983). The Commission accepted the Appeal Board's standard for determining when the good cause factor is satisfied with regard to contentions based on newly available documents. Id. at 1045, 1047. The Commission recognized that it would be fruitless to raise as a contention the tempo-rary lack of a document which is " unequivocally licensing-related." /d.

l at 1045 n.4,1049. It would seem to be a rare instance in which, balanc-ing the five factors, a contention truly arising from a completely new and necessary document would not be admitted.

As this Board has previously indicated, LEA may file contentions based on information arising from new licensing-related documents. In doing so, it should, in the future, address the factors set forth in the Carawba decisions, and the contentions will bejudged on that basis.

In both the Appeal Board and Commission Carawba decisions as well as in our previous orders, however, the finding of good cause for the late filing of contentions is related to the total previous unavailability of information. LEA is cautioned that a submitted document, while perhaps incomplete, may be enough to require contentions related to it to be filed promptly. Nor may LEA wait to see what action another party, 69 I

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including the Staff, will take in reaction to a document before filing con-tentions without losing the *,ood cause associated with the filing of a new document. Cf. Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440,6 NRC 642,644 45 (1977) (denying late interven-tion to petitioner who determined her interests were not being adequate-ly protected by other participants). We realize that in the past we have, with the concurrence of the parties, in some cases encouraged LEA to drop without prejudice contentions for which information has been unavailable. If a newly filed contention follows up on such a dropped contention, we will, of course, take these circumstances into account. In particular, schedules already established in our May 16,1983 order remain in effect.

In conclusion, Contentions I-33D and E are not presently a part of this proceeding. If LEA later wishes to file contentions on these matters, those contentions will be subject to the balancing test for late-filed contentions. Previous unavailability of documerits will be treated in the manner set forth in the Catawba decisions discussed above.

PROBABILISTIC RISK ASSESSMENT (PRA) CONTENTIONS in the June 1,1982 Special Prehearing Conference Order (LBP-82 43A,15 NRC 1423), the Board ruled that the following general PRA contention was admissible, subject to specification:

1 The Applicant's Probabihstic Risk Assessment (PR4). insofar as it is to be used by the Nuclear Regulatory Commission in determining whether the operation of the Limerick facility may constitute a disproportionate portion of the societal risk from nuclear power reactors, and thus constitutes an undue risk to the pubhc due to its siting in a heavily populated area and to its proposed power levels is inadequate and derwient.

Id. at 1489. The Board did not rule on the 32 individual PR A contentions proposed at that time but indicated that many of them supply the requi-site specification and would be admissible. Id.

A major censideration of the Board in not ruling on the individual PRA contentions at that time was the question of the scope and purpose

~

of the NRC Staffs use of the Limerick PRA. At the first special prehear-ing conference in June 1982, the Board was given the impression that the Staff might compare the risk from operation of Limerick directly to the risk from operation found in the WASH-1400 analysis of a reference boiling watef reactor located at a composite site. Id. at 1492. In a

" Statement of the NRC Staffs Use of PRA" dated April 13,1983, sup-plemented by oral statements at the prehearing conference May 9-11, 70

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1983, and by a statement of"The NRC StafTs Use of Limerick PR A" at-tached to the "NRC Staff Response to Licensing Board Order of May 16,1983" (May 24,1983), the Staff has described its current plans for use of the Limerick PRA. The Staff's plans appear to be affected (as they should be) by Commission Policy Statements issued since the first special prehearing conference, in March 1983, the Commission issued a Policy Statement on Safety Goals for the Operation of Nuclear Power Plants. 48 Fed. Reg. 10,772 (1983). In April 1983, the Commission issued a Proposed Commission Policy Statement on Severe Accidents and Related Views on Nuclear Reactor Regulation. 48 Fed. Reg.16,013 (1983).

In ruling on the extent to which PR A contentions would be admissible in this proceeding, the Board has considered these explanations by the StafTand these Policy Statements. In addition, the Board has considered arguments made by LEA and the Applicant on the record and in

" Limerick Ecology Action Response to Licensing Board's Order of May 16,1983" (May 31,1983) and " Applicant's Response to 'the NRC StalTs Use of Limerick PRA and Limerick Ecology Action Response to Licensing Board's Order of May 16 '"

~ Oune 10,1983).

The StafTis no longer planning on directly comparing the risk of reac-tor operation found by the Limerick PRA to that in WASH 1400. Tr.

4205-07. Rather, as regards Safety Considerations, the Staff has stated it plans to use the PRA as part ofits detailed safety review of the Limerick Application, giving particular attention to any identified dominant risk sequences ".. to check whether such sequences are attributable to structures, systems, components or procedures which fail to satisfy NRC regulatory requirements." StalTs April 13,1983 Report on PR A, at 1.

Any identified non-compliances must be corrected. In the event that a dominant risk sequence is identified which is not attributable to a non-conformance with Commission regulations, but, rather is attributable to a unique design aspect of Limerick, the Staff may recommend additional measures to compensate for the unique problem. /d. Any major potential problem areas uncovered as a result of the PRA analyses and review would be (and should be) studied in greater detail to determine whether, in fact, a significant problem exists and whether corrective action is required. Such a major potential problem would also be reported to this Board and to the parties to this proceeding. Tr. 4214. Depending upon the nature of any site-specific unique problem, both the Staff and LEA suggest that justification for requiring remediai or compensatory ac-tions may be found in various regulatory provisions. Sce, e.g.,10 C.F.R.

%4 50.57(a)(3), 50.109(a).100.10 and 10 C.F.R. Part 50, Appendix A, Introduction.

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O The Staff will compare the Limerick PRA to other PR As as a check to determine the reasonableness of the data and assumptions resulting from the PRA. Staffs May 24,1983 Report cn PRA. Such a comparison may be made to determine why a particular dominant risk sequence is an outlier for Limerick. Tr. 4206-08.

With respect to Environmental Considerations the Staff will use the in-formation obtained from its review of the PR A to assess the risks of cei-dents beyond the design bases, in accordance with the Commission's Statement of Interim Policy Concerning Nuclear Power Plant Accident Consideration Under the National Environmental Policy Act of 1969,45 Fed. Reg. 40,101 (1980). Staffs April 13, 1983 Report on PR A, at 1.

Titis is commonly called the Staff's Class 9 environmental resiew or the Environmental Report Chapter 7, analysis. Because there is a large population near Limerick, the thrust of the environmental review will be concerned with population dose considerations under various accident conditions and will be cast in terms of identifying disproportionate risk components. See, c.g., Tr. 4209.

In order to make its environmental review, the Staff will review and evaluate the Applicant's Severe Accidents Risk Assessment (SARA) which will include modeling of external initiating events as well as updat-ing some of the intctnal everus stiodelitig and revisirig the consequerwe modeling. Tr. 4245. This, apparently partly derived from the existing PRA,'will be utilized to determine the overall population risk attributa-ble to Limeri;k (see Tr. 4201-03). As the Board understands it, then, it will be in the environmental review that the overall risk figures emerging from the PRA and from SAR A will be utilized by the Staff. If the overall risk associated with Limerick is significantly greater than that attributable to other nuclear reactors, the Staff would consider recommending com-pensatory features. Stafi's May 24,1983 Report on PR A.

In its April 13, 1983 report, the Staff also mentioned certain other additional uses of the Limerick PRA outside the licensing proceeding, including the general buildup of PRA knowledge and as a source ofin-formation and guidance in severe accident rulemaking activities. The PRA may also be used as the basis for voluntary improvements in the facility and, in fact, the Applicant has made several changes as a result of PRA findings.

The contentions which are presently proposed address the use of the PRA in regard to safety considerations. The Board has indicated conten-tions on SAR A and the Environmental Report Chapter 7 analysis can be 72

(

x filed later. Sec " Memorandum and Order Confirming Schedules Estab-lished During Prehearing Conference" (May 16, 1983), at 6-7.*

Therefore, we consider these contentions only as they relate to the cur-rent PRA and the StalTs use ofit in the safety analysis.

From this perspective, we find that the consideration of safety uses of the PRA in this proceeding should be limited to allegations that there is a particular design problem with Limerick which is pointed out in the PRA. We do not believe that litigating the choice of methodology used in developing the PRA would be profitable. Our concern in this hearing is not whether the PRA was done in the best possible way, but rather w hether the plant is safe.

We recognize that a change in the methodology could modify the numerical results or possibly bring to light potentially new safety problems. Ilowever, we do not believe it would be a profitable use of ad-judicatory time te litigate the methodology used on the chance that dif-ferent methodology would identify a new problem or substantially modify existing safety concerns. If it is known that a problem exists which would be illustrated by a change in PRA methodology, that prob-lem can be litigated directly; there is no need to modify the PRA to con-sider it.

We recognize that changing the PRA methodology could have an effect on the overall risk figures produced. Ilowever, at this time, the technc!cgy is too new for there to be a sorrect or an incorrect way in which to do a PRA. Indeed, these uncertainties are a large part of the reason that the Commission has directed that its safety goals not be used in licensing. See Policy Statement on Safety Goals for the Operation of Nuclear Power Plants, 48 Fed. Reg. 10,772 (1983). This Policy Statement may be viewed, as the Applicant argues, as directing that bottom-line risk figures from PRAs should not be used for making safety findings in licensing proceedings. In fact, the Statement directs that "The staff should continue to use conformance to regulatory requirements as the exclusive licensing basis for plants." 48 Fed. Reg.

10,775, col. 3.

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' Pursuant to the agreement reached b) LEA. Apphcant and the NRC 5taff. as reported m LE A's "Moieon ror en Estenson of Time" of July 21.1983. me approse the proposed amended schedule for t

I the fihns of contentions on EROL Chapter 7 (sAR At LE A's conienisons shall be received b3 seriem-l ber 1.1983. The Apphcant's and the staff's responses shall be received b> september 20 and 30.1983.

respeciescly As stated at the prehearing conference and elsewhere m this order the Board is unsure of lhe scope, nature and practnahties of useful hingation of " bottom-hne" risk contentions based on ihe Chapter 7 ERol analysas m the contemi of the total NEPA enstronmental analysis. % e direct LE A. Ap-l phcant and the stafr to discuss the scope and wordmg of proposed conienisons before they are file.1 with the goal of achicsmg mutualidentiGcation of the issues and of the proper course of the litigation of this i

subject Ihe sep cmNr I,1983 Gims of contentions shall mclude a report on b: half of all parises on the l

course, status and results of such discussions 73 I

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It should be noted that in its environmenta! review, the Staff apparent-ly will be using the numbers it gets from its analyses of population risk.

In that context, it may be possible to litigate the accuracy or meaning of this bottom-line risk number in the context of the NEPA environmental analysis. Even so, the Board is concerned that it is not pertain at this time how such litigation would proceed. That problem, however, is more properly addressed when the SAR A contentions are filed.

Applicant argues strenuously that any problems uncovered as a result of PRA analysis must be judged solely on the basis of conformance or non-conformance with Commission regulations. The Staff does not necessarily disagree with that position. Staff and Applicant apparently do depart in their views as to whether certain regulatory provisions might be invoked to require remedial action on any significant identified problems. The Board does not have to face that issue at this time but ad-vises the parties that on matters of health and safety, this Board is not in-clined to take an unnecessarily restrictive view of the applicability of regulatory provisions.

Considering the extent and use of the Stafi's review of the Limerick PRA and applicable Commission Policy (including proposed policy), the Board will view each proposed contention not only in the light of the Staff's planned uses of the Limerick PRA, but also in light of the litiga-bility of the specific issues. In addition to being within the scope of ad-missible PRA contentions as discussed above, these contentions must satisfy the Commission's criteria for admissibility.

Of the original 32 individual PRA contentions, the Board must rule on only 13, the others having been dropped or withdrawn. The voluntary l

withdrawal of certain contentions was based on LEA's perceptions as to the Staff's planned use of the PRA consequence analysis, if future events show these perceptions to be in error, LEA may petition for reconsideration of their withdrawal. That is a future matter. It should be l

mentioned, however, that LEA was not discouraged by the Board from dropping contentions relating to bottom-line risk numbers on the under-l standing that SARA or the Staff Environmental Report Chapter 7 analy-sis might supply new information which could provide a basis for refiling them. Tr. 4420-21. LEA has also submitted five new contentions based on the Brookhaven National Laboratory (BNL) icview of the Limerick PR A, which are discussed below.

Of the contentions remaining for consideration, only two meet the l

requirements for admissibility. They are LEA Contentions 1-8 and I-15.

A brief discussion of the individual contentions follows.

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s Contention I-4 in this contention LEA asserts that the risk of pressure vessel failure is not considered in the Limerick PRA as it was in WASil-1400 and that, by that omission, Limerick achieves undeserved design credit.

LEA admits that pressure vessel failure was not found to be a dominant accident sequence in WASil-1400 but argues that one cannot assume that it is not a dominant sequence at Limerick. LEA provides no basis for attaching high risk potential to pressure vessel failure at Limerick other than a statement that it may be a dominant contributor to risk due to the severe consequences should such a failure occur.

Applicant and StalT argue that this contention lacks basis. The Board finds that this contention essentially concerns the methodology by which the scope of the PRA was determined. As such, it is not within the scope of litigable PRA contentions. If the concern were vulnerability to pressure vessel failure per se, due to special circumstances regarding the Limerick pressure vessel, that could have been addressed directly in a contention with a properly specific basis. We note, in addition, that pressure vessel failure is being considered in SARA. Thus, the problem of allegedly undeserved design credit should not occur when a bottom-line risk comparison is made. Contention 1-4 is denied.

Contention I-7 This contention is a general allegation that because no suo-part common mode failures were considered in the Limerick PR A, the proba-bility of a core melt accident could be underestimated. Both Applicant i

and Staff argue that this contention should be denied because it fails to address or identify any specific system or sub-component which should be considered. The Staff further argues that I 7 does not state a j

contention, but merely makes a statement regarding tht scope of the i

fault tree model.

l This contention is another example of LEA disagreeing with the scope and methodology used in preparing the PRA. LEA has not focused on any systems or sub-components in which it believes such failures could lead tc a core melt. The Board has been unable to conceive a reasonable scenario in which such failures would occur without being reflected ade-quately in the PRA as component failures. Therefore, the Board does

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not believe this to be an instance where the PRA highlights (or could highlight) particular safety problems with any reasonably based potential for occurrence. The contention is denied.

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i Contention I 8 l

LEA Contention I-8 asserts that estimates in the Limerick PRA of outage time in loss of offsite power (LOOP) events are low because the time estimates are based on an assumed gamma distribution instead of on log normally distributed variants. As we understand it, LEA is con-cerned that use of the gamma distribution leads to a monotonically de-creasing hazard function, whereas use of the log normal distribution would lead to steadily increasing or peaking hazard function values. The l

contention does focus on a specific potential problem. The Board is con-cerned that if outage times are underestimated, inadequate compensating measures may have been provided. Therefore, this contention is admit-ted for the purpose oflitigating whether the plant is adequately designed I to withstand LOOP. While the PRA may provide evidence on this latter issue, the litigation will not determine whether the PRA should be revised.

h Contention I-10 LEA alleges that the Limerick PRA is deficient in that it does not con-sider location-dependent common mode failures. No such failure is l

identified. Thus, the contention lacks specificity about any such failure.

l To the extent it addresses the scope and methodology of the PRA, it l

goes beyond the scope of what may be litigated in this proceeding.

Contention I-11 LEA asserts that the assumption for the equipment failure rate due to aging used throughout the Limerick PRA does not apply to many l

classes of equipment and that a proper assessment of the efTects of equipment aging or risk may reveal a larger effect on Limerick than at other plants. This comparison to other plants is not within the scope of l

the safety analysis based on the PRA and hence not the subject of an ad-missible contention now. Moreover, as a criticism of the methodology of the PRA, the contention not only exceeds what we have determined to be an acceptable scope for PRA contentions, it does not specify how equipment aging should be handled. This contention is denied.

We note that aging of electrical equipment is considered under the Commission's new environmental qualification rule,10 C.F.R. ( 50.49, and that LEA on July 11, 1983 submitted a contention directly dealing with compliance of Limerick with that rule. Tha't contention alleges cer-l tain deficiencies in plant equipment related to environmental qualification, and will be ruled on after responses to it are filed.

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Contention I-12 LEA asserts that the Limerick PRA does not take into account inten-tional or accidental errors and that such errors, if included, could be revealed to be major contributors to risk. LEA states that licensee

" penalty" reports might be used to assess the effect of construction errors but does not elaborate on how that should be done.

It does not appear that LEA is concerned with a particular vulnerabili-ty of Limerick to sucl. errors. Rather LEA appears to be concerned that the overall societal risk from Limerick will be understated. As we ex-plained earlier in this order, the PRA per seis not being used to provide a bottom-line risk number. llence, this contention is not within the scope of what may be litigated with regard to the PRA. This contention is denied.

Contention I-14 in Contention I-14, LEA alleges that, because testing of safety systems design:d to function during a loss of coolant accident (LOCA) or antic-l ipated transient without scram (ATWS) for full-sized reactors in accident conditions has not been done, more conservative assumptions of failure l

rates should be used in the Limerick PRA. LEA wishes the Applicant to use smoothing or higher component failure rates.

The Applicant argues that this is a challenge to the Commission's recently issued regulations on environmental qualification of electrical equipment. See 48 Fed. Reg. 2729 (1983) (codified at 10 C.F.R.

E 50.49]. We do not understand LEA to be seeking further testing of equipment beyond that required by the rule. See Tr. 4380. Ilowever, the rule does make the assumption that equipment which is properly qualified will perform during a design basis accident.

In addition to the problem that this contention appears to challenge the rule, however, there is the problem that the contention is directly a I

challenge to the methodology utilized in the PRA. It does not point to any possible specific defect in Limerick's design. As we have explained above, we will not admit a contention which alleges that the methodolo-gy used in developing the PR A is inadequate.

Contention I-14 is denied.

1 Contention I 15 in this contention LEA alleges that there may be interfacing LOCA initiators which might markedly contribute to overall risk. LEA points out thr.t WASil 1400 identified the potential for a PWR LOCA/ check 77

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i valve failure combination to contribute markedly to overall risk. LEA notes that no such similar case has been identined for Limerick and al-leges that this suggests the possibility of inadequate design revic v. The subsequent identification of a potential interfacing LOCA initiator (involving leakage past closed main steam isolation valves) for Limerick by Brookhaven National Laboratory in its review of the Limerick PRA provides sufficient basis for LEA's allegation.

The question to be resolved now is what to litigate. The Board has ex-plained why it does not believe that litigation of the methodology in-volved in the PRA would be prontable. However, in this instance, LEA has identified a speciGc potential design problem. The Board accepts this contention limited to the purpose of determining whether leakage past closed main steam isolation valves is a problem for Limerick and, if so, what measures should be taken.

Contention 1-16a In Contention I-16a, LEA alleges that it was improper for the Appli-cant to use a 25-mile evacuation radius for the Limerick PRA when plan-

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ning for evacuation around the Limerick site that extends only to a 10-mile radius. LEA alleges that this affec.s the consequence category of early fatalities.

The Board understands this contention not to address the desirable size for the evacuation radius, but the way that this is incorporated into the PRA. In essence, LEA's concern is that the consequences of an acci-dent will be understated. See Tr. 4411. Since it is the Board's impression, set forth above, that the PRA will not be used directly to evaluate consequences, this contention is not admissible. The Board notes, however, that SARA, on which the Staff will base its conse-quences evaluation, takes care of this problem in LEA's mind. /d.

Contention I-16b Contention 116b alleges that the Limerick PRA is deGeient in that it does not consider site-speciGe data. This is a question of the methodolo-gy used in the PRA and the consequences shown by the PRA. SARA has largely taken care of this concern for LEA. Tr. 4411. Since SARA will be used to analyze consequences, it is properly addressed there.

LEA indicated that it might be interested in raising a contention con-cerning the treatment of this issue in SARA. Id. LEA may, if it desires, submit a contention on this, which meets the requirements for 78

E admissibility, including specificity and basis, at the scheduled time for 4

contentions on SAR A. This present contention is not admitted.

Contention 1-23 Contention 1-23 alleges that external initiators of accidents were im-properly excluded from the Limerick PRA. The concern in this conten-tion is the risk from the plant rather than the plant design. Tr. 4419-20.

An evaluation of whether the risk from Limenck is acceptable will be made based on the Environmental Report Chapter 7 and SARA as op-posed to being made on the basis of the PRA. Since this. contention ap-parently aheges that the PRA is not suitable for a purpose for which it will not be used, the contention is not admitted.

Contention I-26 LEA alleges in this contention that the Limerick PRA improperly as-sumed sheltering would occur between 10 and 25 miles from the plant in the event of an emergency. LEA, apparently realizing that if the PRA were not to be used for evaluation of the consequences of an accident at Limerick the contention would be without basis, expressed a willingness to drop this contention if that were the case. Tr. 4423. Since it is our un-derstanding that the PRA will not be used for that purpose (SARA wi10, this contention is denied as lacking basis. If LEA disagrees with SARA's treatment of this matter, LEA can file a contention to that effect with its other SARA contentions.

Contention I-30 LEA alleges that the calculation of risk of latent cancers attributable to Limerick is understated in the PRA Secause malignant thyroid.

nodules with fatal outcomes are not included. As with several earlier contentions, the matter is addressed in SARA. This contention addresses the consequences of an accident at Limerick rather than alleging any design defect. SARA, rr her than the PRA, is being used by the Appli-g cant to evaluate consemences. This contention, which pertains to the PRA is therefore without basis and is denied.

ConteMion I-31 In tNs contention LEA alleges that justification is not provided in the PRA ior the assumption that large-scale medical treatment will be avail-i i

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able to people exposed to radiatior as a result of an accident at Limerick. A major reason for this allegation was the agreement between the Pennsylvania Emergency Management Agency (PEM A) and the Ap-plicant that the City of Philadelphia would not be considered as a support county for emergency planning purposes. LEA does not address the facilities that will be used but implies their inadequacy because of the ab-sence of Philadelphia's capability. In that regard, this contention is lack-ing in both specificity and basis.

If adequate medical treatment is not available, that could be addressed directly with a cor.tention concerning emergency planning. In this regard, however, we note that the Commission recently addressed the question of arrangement for medical services. Southern Cahfornia Edison Co. (San Or.ofre Nuclear Generating Station, Units 2 and 3),

CLI-83-10,17 NRC 528 (1983). In that decision the Commission decid-ed that it was unnecessaiy to plan treatment for large nurnbers of con-taminated or contaminated injured individuals. The Commission rea-soned that only a few individuals might be injured and contaminated so as to require treatment and the planning for onsite personnel and emergency workers could accommodate them,17 NRC at 535, while ar-rangements for those exposed to radiation (but not also injured) could be made on an ad hoc basis. /d.

NEW PROBABILISTIC RISK ASSESSMENT CONTENTIONS In its April 12, 1983 specification of conditionally admitted contentions, LEA filed five contentions which it identified as new proba-bilistic risk assessment contentions. Both the Applicant and the Staff note that LEA did not address the Commission's criteria for the admis-sion of late-filed contentions in submitting these contentions. A consid-erable discussion was held at the special prehearing conference on the

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issue of timeliness of these contentions. See Tr. 4435-42.

LEA argued that good cause existed for filing these contentions late because at the time contentions were originally filed LEA did not have access to the fault trees, event trees, Brookhaven National Laboratory evaluation of the PRA, or other discovery materials. Tr. 4435. The StafT took the position that if the new contentions were sufficiently tied to in-i formation newly available since contentions were originally filed, they l

would not be untimely. Tr. 4442. The Applicant does not believe that l

the Intervenor should be permitted to rely completely for a new conten-l tion on the Staffs review of material which'the Intervenor previously had in its possession. Tr. 4439.

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At the prehearing conference, the Licensing Board indicated that before the Licensing Board would rule against these contentions because they were untimely, LEA would be permitted to submit an afndavit sup-m.

porting its position that the information was not available until the Brookhaven analysis was published (or otherwise not available until after the January 1982 Grst special prehearing conference). Tr. 4441-42.

Particularly in light of the Commission's decision in Carawba, which we have discussed previously in this opinion, there may be room for argu-ment as to whether the Brookhaven analysis is a document sufnciently central to the licensing process that its issuance provides good cause for the Gling of late contentions. LEA did, after all, have the PRA which formed the basis for the Brookhaven analysis. In view of our decisions on the particular contentions, however, it is not necessary for us to decide whether issuance of the Brookhaven document could provide good cause for the late Gling of these contentions.

Contention 1 In this contention, LEA asserts that accident sequences were not realistically modeled in the Limerick PRA. LEA alleges that there are errors in systems unavailability values and that some Limerick support systems were not considered. LEA has not specified particular errors, or even indicated the systems for which it believes these errors were made.

To the extent it alleges a dencient methodology in performing this par-ticular PRA, it is not admissible for the reasons stated in our general dis-cussion of PR A. Contention 1 is not admitted.

Contention 2 In Contention 2, LEA alleges that the binning of accident sequences in the Limerick PRA was improper and that smoothing should have been used as it was in WASil-1400. According to LEA, the risk of both acute and latent fatalities is higher if smoothing is utilized. LEA has not provided a basis for why these higher risk figures would be more accurate. Nor has LEA pointed to anything which would indicate that the methodology used in the PR A was improper.

LEA characterizes the issue as "a ditTerence in opinions by experts.

Tr. 4448. We are not, however, given any details about the basis for the experts' conclusions. Therefore, we find the contention vague.

In addition, we note that this is a contention which challenges the methodology of the PRA. We do not believe it is our role to validate all the procedures utilized in the PRA. We view the PR A as a tool which is 81

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useful in identifying particular potential safety problems. This contention does not point us to any particular safety problems with the plant. We do not, therefore, see that litigating it would be a beneficial use of adjudica-tory time.

Contention 2 is not admitted.

Contention 3 Contention 3 alleges that the frequency for the loss of offsite power (LOOP) initiator is understated in the Limerick PRA because partial LOOP occurrences were excluded from the data base and nuclear and non-nuclear LOOP experiences were combined in calculating LOOP frequency. Contention I-8 also related to LOOP. As we have described in discussing Contention 18, we will not admit a contention which al-leges that the methodology used for incorporating LOOP in the PRA is inadequate. On the other hand, we are

'cerned that Limerick's design be adequate to handle LOOP occurrences which may be anticipated. We are denying this contention as it is stated.110 wever, this does not pre-clude the possible relevance of similar evidentiary support as part of the litigation of Contention I-8 on the question of whether the design of the plant is adequate for coping with LOOP events which may be anticipated.

Contention 4 Contention 4 alleges that because an older model is used in the Lim-erick PRA for the decay heat curve, the evacuation warning time is over-stated and (radioactive) source terms may be understated. At one time LEA alleged that it led to an understatement of core melt probability due to overs'ating opportunity to quench core melt by safety systems, however, LEA has dropped that part of the contention. Tr. 4454-55.

LEA's concern is stated to be the efTect that use of this model will have on the consequence analysis in the PRA. /d. As discussed above, the PRA is not being utilized to develop an ultimate consequence (and hence risk) figure. Therefore, this contention is without basis. In addition, the contention concerns the methodology used in the PRA which, we have explained, is not in and ofitself a proper subject for liti-gation in this proceeding.

Contention 4 is not admitted.

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E summmmmmm-m Contention 5 LEA contends that if deficiencies in the Limerick PRA are corrected, the PRA will show that Limerick represents an undue and disproportion-ate risk to the public due to its location. This is clearly a contention con-cerning the overa!! risk attributable to Limerick. As we understand it, the PRA is not being used to establish an overall risk figure for Limerick. Therefore, it is not important for the uses to which the PRA is being put whether the risk figure resulting from the PRA is accurate.

(Establishing overall risk is much closer to what will be done in SAR A.)

Furthermore, the contention as it is phrased is quite vague. It refers to "PR A deficiencies" without specifying them. Presumably, they have been specified in other, more precise contentions.

Because it is vague and does not relate to the Staff's stated uses for the PR A, this contention is denied admission.

NON PRA HEALTH AND SAFETY CONTENTIONS 1-33M - Modification of ADS Logic (LEA)

This contention stems from NUREG-0737 " Clarification of TMl Action Plan Requirements," item II.K.3.18, which states that the au-tomatic depressurization system (ADS) logic should be modified to eliminate the need for manual actuation to assure adequate core cooling.

The BWR owners' group feasibility and risk assessment study, re-sponding to item II.K.3.18 and satisfying the first part of the contention, has now been completed and approved by the Staff. See NRC Stali letter to Applicant of May 23,1983, and attached Staligeneric evaluation (issued on or about April 1,1983), both of which are attached to "NRC StalT Response to Licensing Board's Order of May 16,1983," dated May 24,1983. By responsive letter to the Staff, dated June 20,1983, the Ap-plicant has committed to the StafT-approved option 4 of the owners' group evaluation. Option 4 involves adding a timer which would bypass the high drywell pressure permissive after a sustained period oflow reac-tor water level, and adding an ADS manual inhibit switch.

Accordingly, the only portion of LEA's contention still pertinent is that:

lAlpplicant states that rnodifications resulting from the LADS logic] review will be deferred until the first refueling outage. The risk of an accident is particularly high in the initial period of operation of a nuclear power plant, and the applicant should be required to justify a delay which could unnecessarily threaten the health and safety of the public.

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4471-81), LEA believes the NUREG 0737 implementation date for this item requires that the now agreed upon modifications be made prior to fuel load of Unit 1 (estimated by Applicant as August 1984, at the earliest), since that will be later than six months after the now issued Staff approval of the option 4 modification. The Applicant asserted at the conference that the implementation date for this requirement for operating license applicants is established in NUREG 0737 as the first refueling outage. The NRC Staff report to us of May 24,1983, unfortu-nately fails to analyze the implementation date, as we had requested, by discussing either the language and rationale of NUREG-0737 or whether there are any later clarifications of NUREG 0737 schedules. Rather, the Staff merely asserts in its report to us, and in its May 23,1983 letter to the Applicant that, under the NUREG-0737 schedule, the modifications need not be made until the first refueling outage.

The NRC Staff's letter to the Applicant does note that the modifica-tions do not appear to require a large-scale effort and that therefore the Applicant should consider the feasibility of making the changes prior to fuel load. The Applicant's response of June 20, 1983, states that it is unable to commit to making the change before loading fuel due to possi-bly requiring time for final analysis and subsequent equipment purchases.

If we were required simply to interpret the four corners of the NUREG-0737 implementation schedule, given the absence of any expla-nation by the Staff, we would agree with LEA that the implementation schedule as stated in the text of item li.K.3.18 cannot, now that the Staff has approved the design options, be longer for new operating licenses than the sensible scheme set forth for operating reactors - the first refueling outage after six months from that Staff app; oval. Six months from the April 1,1983 Staff approval (or arguendo the Staff's May 23,1983 letter to the Applicant) (i.e., October 1 or November 23, 1983) still leaves eight to ten months for the modification to be made before Applicant's most optimistic fuel load date estimate.

This is also consistent with the modification schedule in Table 2 of NUREG-0737, although its understandably shorthand notation is not clear without reference to the text of item II.K.3.18. In other words, both the schedule in summary Table 2 for new OL applicants to make the item II.K.3.18 modification "Ist refuel 6 mo. after Staff approval" l

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- and the schedule implementation for operating reactors in the NUREG-0737 text of this item, instruct that utilities are expected to make this change after a six month grace period from Staff approval.

Ilowever, if the reactor is operating at the end of that six month period, 84

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can be delayed until the first planned outage after that six month period, i.e., the first refueling outage. As noted, Limerick would not be operat-ing for at least eight to ten mon:hs after this six month period.

Therefore, Applicant must establish before us that this NUREG-0737 item II.K.3.18 position is not necessary if it wishes to depart from it until some time after fuel load. The posture of Limerick is, of course, dilTerent from other BWRs which were ready to load fuel before even the Staff approval (or before six months from that date has elapsed).

For such reactors, unlike Limerick, the first planned outage after the six month post-approval of design grace period would be the first refueling outage.

If our reading of the modification schedule is at odds with the Stafi's, again we note the Staff has failed to explain its apparent rote application to Limerick of the schedule applicable to the post-NUREG 0737 BWRs which have been or will be granted operating licenses prior to or within six months of the Staffs approval of a modification plan responsive to item II.K.3.18. Based on our discussion above, we see no logic to the StalTs application of the schedule to Limerick. Regardless, LEA would be permitted to litigate whether such an extended NUREG-0737 imple-mentation schedule would be sufficient as applied to the schedule cir-cumstances of Limerick. See Statement of Policy: Further Commission Guidancefor Power Reactor Operating Licenses. CLI-80-42,12 NRC 654 (1980). Our above discussion shows the bases exist for such a contention. Therefore, the technical merits of the contention are litigable in any event. We admit the contention as quoted above.

l I Post-Accident Radiation Monitoring (LEA) l It is not completely clear upon reading Contention I 38 exactly what i

LEA's concern is. At the prehearing conference, h*owever, it appeared l

that LEA's concern is with post-accident monitoring both inside and out-i side of the containment (Tr. 4487), but not offsite. Tr. 4488. LEA's con-(

cern is that the Design Basis Accident-Loss of Coolant Accident (DBA LOCA) was bemg utilized to establish monitoring capabilities.

LEA asserts that General Design Criterion (GDC) 64 would require monitoring capabilities beyond those needed to monitor radiation levels during a DBA-LOCA. Tr. 4490,4493. LEA wishes to address the ability of the monitoring equipment to withstand an environment more severe l

than DBA-LOCA and to measure radiation levels in such conditions. Tr.

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Although LEA has cited in its basis for this contention item II.B.3 from NUREG-0737, LEA is not contending that the Applicant will not satisfy that requirement. Tr. 4494. Rather LEA cites item II.B.3 because it requires sampling. /d. Item II.B.3 refers primarily to sampling of the reactor coolant and containment atmosphere under accident conditions.

Thus, it may not cover the entire spectrum of monitoring, i.e., outside containment, with which LEA is concerned. For the sampling which it does require, item II.B.3 requires that, for a boiling water reactor such as Limerick, the fission product release described in Regulatory Guide 1.3 for DBA-LOCA be assumed. LEA, citing GDC 64, would require the Applicant to go beyond item II.B.3 to require sampling capabilities for " postulated accidents" beyond design basis.

The Commission has said that an intervenor may litigate whether mea-sures beyond those required by NUREG-0737 should be imposed if an otherwise admissible contention addresses the problem to which a NUREG-0737 item is directed. Pacific Gas and Electric Co. (Diablo Canyon, Units 1 and 2), CLI-81-5,13 NRC 361,363 (1981). At least in-sofar as LEA is concerned with reactor coolant and containment at-mosphere sampling, LEA is, in fact, addressing a problem to which item II.B.3 is directed and arguing that further measuses should be required.

See Tr.4486.

The problem with LEA's basis, however, is that it requires that

" postulated accidents" as it is used in GDC 64, be interpreted to include l

accidents beyond design basis. The Board finds that " postulated acci-l dents" is a term of art which refers to design basis accidents. There does not appear to be any written defmition of " postulated accidents." See Tr. 4490-92. We are, however, reinforced in our interpretation that GDC 64 is intended to require monnoring only for design basis accident conditions by the recently enacted rule requiring Environmental Qualifi-cation of Electric Equipment important to Safety for Nuclear Power Plants. 48 Fed. Reg. 2729 (January 21, 1983). This rule requires that electrical equipment important to safety, including "certain post-accident

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monitoring equipment" be qualified to perform under design basis acci-dent conditions.10 C.F.R. 6 50.49(b)(3) and (d)(1). It would not be rea-

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sonable for the Commission to have limited the qualification of momtor-ing equipment to design basis accidents if the general guidance of the Commission's GDC 64 were interpreted by the Commission to require that this very monitoring equipment be able to perform in more severe conditions.

Insofar as this contention seeks to require monitoring or sampling not l

covered by item II.B.3, LEA has not identified a NUREG-0737 or a NUREG-0694 item directed to LEA's concern. Under Diablo Canyon.

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supra, if the concern is not addressed in a NUREG-0737 or a NUREG-0694 item (and it is not litigable under some other regulatory requirement) it is a challenge to the regulations and may be raised only by a petition under 10 C.F.R. ( 2.758. Thus, in addition to the fact that we do not interpret GDC 64 to require monitoring capability beyond design basis accident conditions, LEA has not shown why the contention would not, to this extent, be a challenge to NRC regulations.

For the above reasons, Contention I-38 is not admitted.

I Engineering Safeguards to Compensate for Class 9 Accident Release of Airborne Radiation (LEA)

LEA contends that due to high population (ensity and the dependency of Philadelphia on surface water sources for drinking water, additional compensating design features are necessary to prevent and mitigate the post-accident release of airborne radioactivity. As examples of the addi-tional design features which should be required, LEA advocates the use of in-core thermocouples for detecting inadequate core cooling (which LEA labels preventive) and a filtered vented containment (which LEA labels a mitigative feature). As appears from the thrust of the contention, and as confirmed at the prehearing conference (Tr.

4517-18), the contention is premised on the occurrence of an accident greater than design basis; i.e., a Class 9 accident.

The Commission recently issued its " Proposed Commission Policy l

Statement on Severe Accioents and Related Views on Nuclear Reactor Regulation," 48 Fed. Reg. 16,014 (1983). In it, the Commission discussed its bases for belief that, pending the resolution oflarge generic programs presently underway, existing design basis requirements provide reasonable assurance that the risk of degraded core accidents is acceptable. 48 Fed. Reg.16,018, cols.1-2. The statement continues:

Accordingly, individuallicensing proceedings are not appropriate forums for a broad examination of the Commission's regulatory requirements relating to control and i

mitigation of accidents more severe than the design basis. Similarly, notwithstanding the Class 9 accidents review requirements for environmental hearings of the Com-mission's Statement ofInterim Pohey on " Nuclear Power Plant Accient Considera-tions Under the National Environmental (Plohey Act of 1969" (45 FR 40101, June 13, 1980), the capability of current designs or procedures (or alternalises thereto) to control or mitigate severe accidents should not be addressed in case-related safety hearings.

i Id. at 16,018, col. 2.

We recognize that this policy statement at present is proposed, not adopted. However, it is prudent for us to accept it now as disclosing the l

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Commission's present intent to impose the very clear quoted mandate not to litigate a contention such as 1-60. If the policy statement, as adopted, changes this mandate materially, we will of course consider any such change.

If the proposed policy statement is not adopted at all, or remains pend-ing at the conclusion of the Limerick proceeding, Contention 1-60 would still not be admissible, since it would also not have been admissible prior to this proposed policy statement. The Commission's proposal is expressly intended to supersede, inter aha, the Commission's advance notice of proposed rulemaking, " Consideration of Degraded or Melted Cores in Safety Regulation," 45 Fed. Reg. 65,474 (1980). Sec 48 Fed.

Reg.16,014, col. 3. The Commission has presiously pointed to that car-lier proposed rulemaking proceeding as the proper place for considera-tion of the ques; ion of possible additional safety factors to deal with degraded core conditions, tather than an individual proceeding. See Afe-tropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1).

CLI-80-16,11 NRC 674,675 (1980) (involving hydrogen generation foi-lowing a degraded core accident). In fact, one of LEA's examples of a fil-tered vented containment was one of the express issues being considered in the degraded core rulemaking, as question 6. 45 Fed. Reg. 65,476 (1980).

Prior to the April 1983 proposed policy statement, it might have been open to LEA to allege, with basis and particularity, a credible degraded core accident scenario for which additional design measures should be considered to control airborne radiation releases. CL Three Sti/c h/and, supra, at 675. Ilowever, LEA's contention does not do so. It is simply a broad concern that an unspecified accident beyond those presently de-signed for is credible, and that unbounded (except for tv o examples) additional design measures should be required. Accordingly, the conten-tion does not provide adequate bases or specilicity, and is rejectable also for this reason.

VI-l - Pattern of Improper Quality Assurance / Quality Control (AWPP)

The contention alleges a pattern of faulty workmanship, inspection and supervision by the Applicant. The written contention, and the Air and Water Pollution Patrol's ( AWPf9 remarks at the prehearing conference, highlight an allegation that Applicant's corrective action was insufficient in response to an NRC Staff inspection report (76-06, November 10, 1976). This inspection report cited improper welds and welding procedures, and the fact that the welds had been approsed by 88 i

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Applicant's inspector. AWPP's basis for this particular allegation is Ap-plicant's December 15, 1976 response to the NRC StafT inspection report. This respanse stated that, in addition to repair of the particular welds and preventive actions, a reinspection of all other work inspected by that same Applicant's inspector "has been accomplished, where accessible." AWPP argues that all such welds, even if not accessible, should have been reinspected.

In addition, the contention lists ten other NRC Staff inspection reports and summarizes problems reported on in those reports which al-legedly indicate a pattern ofinadequate QA/QC.

The Board could perceive no particular pattern from the allegations or summaries of reports in the contention. In recognition of the fact that AWPP is not represented by counsel, and of the importance of the sub-ject of QA/QC, we spcnt considerable time at the prehearing conference in an attempt to clicit from AWPP just what the alleged pattern is, and what specific bases exist to support the allegation of a pattern. Tr.

4134-52; 4172-96. Based on this discussion, we conclude there is no par-ticular pattern being alleged by AWPP. Rather, AWPP is merely relying on the fact that there are many deviations and non-compliances in NRC Staff and Applicant inspection reports over the many years of construction, and that this shows inability of the Applicant to carry out a proper QA program. (AWPP is not alleging that any particular defect still exists. Indeed, the contention asserts that later correction of the items found is irrelevant to the fact that a pattern exists.)

We agree in general with the Applicant and Staff that the mere recita-tion of unrelated adverse findings in teports of inspections and audits performed by the Staff and Applicant does not supply information on what specifically would be litigated. It suggests a broad, unfocused, item by item cross-examination of the very Staff and Applicant inspectors who reported the problems and approved their resolution. This is to be contrasted with proceedings where particular allegations of specific pat-terns of QA/QC problems, often based on inspection reports, have been litigated. It is also in sharp contrast with supported allegations of particu-lar existing construction defects.

The Board initially was concerned that the highlighted example sum-marized above might be a well-based instance of a failure by the Appli-cant to take sufTicient corrective action. The Applicant, in response to

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the contention, asserted that all welds inspected by the inspector in ques-tion were in fact reinspected, not just accessible ones, and that docu-ments supplied to AWPP show this. Pursuant to our order of May 13, 1983, Applicant supplied these documents under cover of counsel's letter of May 20,1983. Included as attachments 8 and 9 are Applicant's 89 n

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(actually its agent, Bechtel's) inspection reports of April and July 1977.

According to counsel's letter, these reports show further follow-up through reinspection of all of the inspector's welds which were inaccessi-ble for temporary reasons at the time of Applicant's initial December 1976 response, as well as the inspection to the extent possible of such welds embedded in concrete. Counsel's letter further asserts that the Ap-plicant performed structural analyses which assumed that embedded welds or portions thcreof which were not accessible for reinspection were nonexistent. AWPP is correct that Applicant's original response to the inspection report implied that only accessible welds were reinspected. Given Applicant's asserted follow-up, however, it may be that Applicant's letter of December 15,1976, only intended to report on reinspections performed by that time. If so, it would certainly have been useful for Applicant to have indicated in that response that further in-spections and analyses would be performed.

The Bechtel inspection reports do not by themselves make clear that the welds listed are those which had been inspected by the same inspec-tor cited in NRC StafT inspection report 76-06, or that the other state.

ments in counsel's letter are accurate descriptions of the reports (attachments 4 9). In addition, we have no sworn amdavit attesting to the fact that the structural analyses, showing the assumed absence of the embedded welds as acceptable, were performed. (The details of these structural analyses are beyond the scopc of the contention that QA/QC follow-up action to this Staff inspection report was improperly limited to reinspection of accessible welds.) However, it presently appears from counsel's representations of facts that there is no basis to admit even this part of AWPP's contention. We will not do so, subject to Applicant providing, as soon as practicable, appropriate amdavits of knowledgeable persons verifying the accuracy of the statements in its counsel's letter of May 20,1983.

Nothing in AWPP's letter to the Board of May 25, 1983, responding to Applicant's counsel's letter of May 20, 1983, remedies the fatal ab-sence of bases for believing thr.t Applicant limited its follow-up action to accessible welds.

WPP seeks to conduct further discovery to better specify the m

contention. We have already permitted AWPP about a year to examine QA/QC documents and it has been unable to frame an admissible contention. Further discovery is unwarranted given AWPP's failure to specify with any reasonable particularity what it would seek to litigate within the broad area of QA/QC. The fact that AWPP has not received 90

O details of everything it might need to actually litigate a case at an evi-dentiary hearing does not excuse its failure now to state an admissible contention with reasonable specificity and basis.

For the reasons stated, this contention which had been conditionally admitted in an earlier form, subject to AWPP providing better specificity and basis, is rejected, subject to our acceptance of the affidavits to be filed by Applicant.

DISCOVERY Discovery may begin immediately on contentions admitted by the Board in this order. All discovery requests must be served by October 14, 1983. Discovery is subject to the directions and time limits set forth in our Order of May 16,1983.

ORDER

1) Contentions I-8,1-15 and 1-33M are admitted for litigation. The litigation is to be within the scope described in this memorandum and order.

2) Contentions I-4, I-7,1-10, I 11,1 12,1-14,1 16a,1-16b,123,1-26, 1-30,1-31,1 38,1 60, VI-l (provided appropriate confirmatory affidavits are filed by Applicant), and the five new probabilistic risk assessment contentions are denied.

3) Discovery on the admitted contentions may start immediately and will follow our instructions set forth in this memorandum and order and our " Memorandum and Order Confirming Schedules Established During Prehearing Conference" (May 16, 1983).

4) Pursuant to 10 C.F.R. 6 2.751a(d), parties normally may file objec-tions (requests for reconsideration) to this Order with the Licensing Board within five days after service (ten days in the case of the Staff) of 8

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the Order. Parties may not file replies to the objections unless the Board so directs.

IT IS SO ORDERED.

Tile ATOMIC SAFETY AND LICENSING BOARD t

Lawrence Brenner, Chairman ADMINISTR ATIVE JUDGE Dr. Richard F. Cole ADMINISTR ATIVE JUDGE 1

Dr. Peter A. Morris ADMINISTR ATIVE JUDGE Bethesda, Maryland July 26,1983 l

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Cite as 18 NRC 93 (1983)

LBP 83 40 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Ivan W. Smith, Chairman Dr. Dixon Callihan Dr. Richard F. Cole in the Matter of Docket Nos. STN 50-454 OL STN 50 455 OL (ASLBP No. 79 411 04-PE COMMONWEALTN EDISON COMPANY (Byron Nuclear Power Station, Units 1 and 2)

July 26,1983 The Licensing Board denies the NRC Stafi's application for a stay pending appeal from a part of a Board order directing the parties to pre-sent a full evidentiary showing and explanation of certain investigations and subsequent reinspections related to the quality assurance program of one of Applicant's contractors.

RULES OF FRACTICE: STAY PENDING APPEAL The criteria for determining whether to grant a stay pending appeal have been codified in 4 2.788(e) of the Commission's Rules of Practice (10 C.F.R. ( 2.788(e)).

RULES OF PRACTICE: STAY PENDING APPEAL lt is appropriate for a party seeking a stay pending appeal of a licensing board order to petition the licensing board first. Florida Poner and Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404. 5 NRC 1185.

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1186 n.2 (1977). Ilowever, it is also appropriate for a licensing board to place relatively little v'eight on the first criteria for determining a stay pending appeal, l.c., whether the moving party has a strong showing that it is likely to prevail on the merits of the appeal.

RULES OF PRACTICE: PRODUCTION OF NRC RECORDS AND DOCUMENTS in considering whether the NRC StalT will be irreparably injured by an order to produce relevant documents even though germane to a pending inspection or investigation, the licensing board cannot determine the ap-plicability of the " investigatory record" exemption to the NRC codifica-tion of the Freedom of Information Act,10 C.F.R. 4 2.790(a)(7), with-out at least a discussion of the various protections afTorded by 6 2.744 of the Commission's Rules of Practice (10 C.F.R. 5 2.744).

RULES OF PRACTICE: PRODUCTION OF NRC RECORDS AND DOCUMENTS The Staff may not unilaterally and summarily declare that the

" investigatory records" exemption (10 C.F.R. 2.790(a)(7)) applies to in-formation in its possession. Pursuant to 10 C.F.R. 2.744(c) this determi-nation must be made by the presiding officer after examination of the information.

RULES OF PRACTICE: PRODUCTION OF NRC RECORDS AND DOCUMENTS Although ( 2.744 by its terms refers only to the production of NRC documents, it also sets the framework for providing protection for NRC Staff testimony where disclosure would have the potential to threaten the public health and safety.

RULES OF PRACTICE: DISCLOSURE OF NRC RECORDS AND DOCUMENTS With respect to safeguards information, the Commission has declined to permit any presumption that a party who has demonstrated standing in a proceeding cannot be trusted with sensitive information.

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1 RULES OF PRACTICE: PRODUCTION OF NRC RECORDS AND DOCUMENTS If there are persons who might be privy to sensitive information who I

are not trustworthy, that fact can be made known exclusively for the licensing board's consideration in fashioning suitable protection under the various means available to the board. The fact that persons employed by Applicant or its contractors cannot be trusted to receive information on a quality assurance issue is itself relevant to the issue'and must be provided to the Laard.

/

RULES OF PRACTICE: STAY PENDING APPEAL Where the NRC Staff has failed to show that the provisions of 10 C.F.R. Q 2.744(c) do not provide sufficient protection for the informa-tion ordered to be disclosed by the board, it has failed to demonstrate the potential for irreparable injury that would justify the granting of its application for a stay of the board's order pending appeal.

LICENSING BOARDS: RESPONSIBILITIES If, with respect to an uncompleted inspection and investigation, an explanation of the nature of the allegation and a description of the evi-dence so far gathered can put a matter to rest or indicate a need for fur-ther inquiry, the licensing board has the responsibility to inquire timely into the significance and relevance of the pending inquiries to the issues in the proceeding.

MEMORANDUM AND ORDER DENYING STAY APPLICATION The NRC Staff applies for a stay pending appeal' from a part of this Board's July 1,1983 Memorandum and Order directing the parties to "present a full evidentiary showing and explanation of the pertinent

[ Region Ill and Office of Investigation) investigations of Hatfield Elec-tric's quality assurance program and subsequent reinspections." That 3 NRC staff Apphcation ror stay or the Licensmg Board's July 1.1983 Memorandum and order. July s

ll 1983. subsequently, on July 21 during a conference esII, the staff supplemented the apphcation to extend the requested stay through any Commission reuew I

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same order required the Staff to provide relevant documents in advance of the reopened hearing set for August 9,1983.

The Staff agrees to present evidence and provide documents ci completed inspections and investigations but has appealed from and seeks a stay of that aspect of the order which would require evidence on

' 1 pending inspections and investigations The background of the Board's directive is set out in two memoranda and orders of June 21, 1983 respectively accepting portions of John s -

Hughes' testimony and reopening the evidentiary hearing.2 Also, the parties have very thoroughly briefed the factual circumstances to the Appeal Board. The matters we inquire into are, by the Stafrs adrais'sion,

. potentially serious problems alTecting the public health etd safety.

E.g., Stay Application at 5. Moreover, the Staff does not assert' that the results of its inspections are not suitable for litigation if otherwise rele-vant to the issues. Motion for Directed Certification at 8.

Before we address the merits of the stay application, we wish to clarify our July 1 order which may be confusing out of context. Our order of June 21 reopening the evidentiary record and the July 1 order are direct-ed to the Omce of Inspection and Enforcement and other staff compo-nents who are represented by the Omce of Executive Legal Director and who report to the Executive Director for Operations. The Board has made a separate request to the Omce of Investigations (01), which is not a staff omce, for voluntary cooperation in the reopened proceeding.)

Our references (some by incorporation) to 01 in the reopening orders

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were intended to include all information in the possession of the staff of-fices even though that information is the subject of pending O!

investigations.

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DISCUSSION The familiar criteria set out in Virginia Petroleum Jobbers Association v.

Federal Power Commission. 259 F.2d 921, 925 (D.C. Cir.1958), have

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long goverric.d the determinations of whether to grant stays pending appeal in NRC proceedings. In 1977 the criteria were codified in 10 3

C.F.R. 2.788(e):

x 2 Memorandum and Order Ruhng on intervenors' Mouon to Admit lesumony or John Hughes. and Memorandum and Order Reopenmg Evidenuary Record (unpubbshed).

3 Lett-June 21.1983 rrom Board to Pa hk.

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(e) In determining whether to grant or deny an application for a stay, the Commission, Atomic Safety and Licensing Appeal Board, or presiding otricer will consider:

(I) Whether the mosing party has made a strong showing that it is likely to pre-vait on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the publicinterest lies.

(1) Likelihe~! of Prevailing on the Merits it is an inherently difikult task for a party seeking a stay pending appeal of a licensing board order to attempt to persuade that board that its own order will be thrown out on its merits. The Staff has correctly brought the stay application to the Licensing Board, however. E.g., Flori-da Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 2),

ALAB-404,5 NRC 1185,1186 n.2 (1977). We do not believe that the Staff will prevail on the merits - but we also believe that this criterion is the least important of all four. If the Staff prevails on the other three criteria, we would be inclined to accept relatively slim chances of prevail-ing on appeal in satisfaction of the " merits" criterion. This weighting of the four factors is particularly appropriate when the stay application is directed to the presiding officer whose order is the subject of the appeal.

However the Staff is entitled to full consideration of its merits argument. It states that our order threatens a long-star. ding practice of providing testimony and documents only after the respective investiga-tion is complete. We are aware of no such tradition or practice and the Staff has not provided any support for its claim. Nor are we aware of any l

legal authority for the practice no matter how long standing it may be.

Lest there be doubt, our directive to the Statt did not attempt to direct the Staff in the timing of its investigations or the timing of its final reports. Nor did we direct the Staff in any other way except to re-quire it to present otherwise appropriate information in the hearing.'

Staffs assertion that sooner or later all of the relevant information will i

be presented in the adjudication was made for the first time in its appeal l

i d See D//sharr Poner Sisiems (Floatmg Nuclear Power Plants). ALAB489. 8 NRC 194.199 208 (19781 tboards and stafT must coordmate as of partners m the pubhc mierest).

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O and stated to us for the first time in its stay application.5 This is an entire-ly distinct consideration which we address in the second part of this order. As we understand it, the StafTs position is only indirectly related to timing. Its position seems to be that the pendency or uncompleteness of an inspection or investigation, with nothing more, is sufficient to pro-tect the respective information from being produced in litigation. This is true even where the information, a corporate record say, would other-wise be subject to a production order. It is not clear, but it may be that there is a second aspect to the Staff position, i.e., the pendency of the in-quiry protects the information only when the Staff declares that its pro-duction will compromise the uncomplete investigation. In that case, the Staff may unilaterally and summarily make such a declaration. If we have characterized the Staff position accurately, we see little chance of it prevailing on appeal under present Commission precedent and policy and on any grounds presented to this Board or the Appeal Board. It has advanced nothing in support of that position. The Applicant has briefed that point thoroughly. Response to Motion for Directed Certification at 15-24.

The StafT also asserts that congressional attention, by the Committee on Interior and Insular Affairs, Subcommittee on Oversight and investigation, will somehow affect favorably its chances of prevailing on the merits. We need not judge the probability of that effect. Even assum-ing that the StafT is correct, and assuming that the issue now before us, and the generic issue it represents, will predictably result in a change in Commission policy and regulation, we are not empowered to disregard present case law and regulations in the conduct of this proceeding.

The only material possibility that the Staff will prevail on the merits depends on its claim that it will suffer irreparable injury ifit does not.

(2) Irreparable Injury The Staff asserts that it will be irreparably injured if required to comply with the Board's order because premature release of uninves-tigated allegations might compromise the respective inspections and in-vest'gations and that the ".potentially significant public health and safety problems may remain undiscovered and uncorrected."

iWe rec 3nize that the testimony or the Region 111 ofrecials underlying the present inquiry stated that "the results or its inspections or investigations will be documented at some future time " Region til testimony fr. Tr 3586. at 6. There has been no prior suggestion, hometer, that the stafr intended to bring those results into the adjudication. The staff acquiesced in the closing of the record and opposed reopening it to receive the Hughes testimony.

s.,

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G Remarkably, the StafT in its earlier discussions with us, in its two plead-ings on appeal and its stay application not once cited /0 C.F.R.1.744. We are told simply that in camera treatment and protective orders would

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only somewhat reduce the risk of premature disclosure. The subjects of the investigations and inspections "by inadvertence or otherwise" might become aware of the allegations. Stay Application at 5.

In arguing to this Board against the issuance of the order directing the Staff to produce relevant documents even though germane to a pending inspection or investigation, the Staff pointed to the " investigatory records" exemption to the NRC codification of the Freedom ofInforma-tion Act,10 C.F.R. 2.790(a)(7). We ruled in our July I order that, with-out at least a discussion of the various protections afford'ed by Section 2.744, we could not give the Staff's argument the consideration it required. We are in no better position today. Even the Applicant and In-tervenors had to postulate how the Staff might avail itself of the protec-tions afforded by NRC regulations in attempting to present a complete picture to the Appeal Board.

Although Section 2.744 by its terms refers only to the production of NRC documents, it also sets the framework for providing protection for NRC Staff testimony where disclosure would have the potential to threaten the public health and safety. The Commission's approach to protecting nuclear plant security information and safeguards information in general is analogous and instructive. The Atomic Energy Act was amended with new Section 147 in 1980 to provide for the minimum re-l strictions needed on the release of safeguards information to protect the l

public health and safety. In conforming Parts 2 and 73 to Section 147 of l

the Act, the Commission discussed at length the balance between mea-I sures used by Boards to protect sensitive information and the rights of parties in adjudicatory hearings. Statement of Considerations, Protection of Safeguards Information,46 Fed. Reg. 51,718 (73-SC-26) (1981). The Commission noted:

l The minimum protection required for Safeguards Information is stated in proposed 4 73.21. The requirements there apply to intervenors and their counsel as well as to the applicant or licensee. Section 2.744(e) allows a Board to go further. if, in its judg-ment after hearing all relevant arguments, the circumsiances warrant it. This Corn-mission needless to say, has confidence in the ability ofits Boards to exercise sound judgment in the exercise of their discretion under ( 2.744(e), and therefore at this time declines to write any special rules for the guidance of the Boards as to the extra measures they may require for the protection of Safeguards Information in adjudica-tory hearings.

Id. at 73-SC-28.

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O The Commission also stated that:

At this time the Commission tKlieves that its opinion lDeblo Canyon. CLI-80-24, iq/ral and those of the Boards provide adequate guidance. See, l'acsfic Gas and Elec-tric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI 80-24.11 NRC 775 (1980), ALAB-410,5 NRC 1398 (1977); ALAB 580,11 NRC 227 (1980h ALAB-592,11 NRC 744 (1980h and ALAB-600,12 NRL 3 (1980).

Id.

Of particular importance to this proceeding is that the Commission, with respect to safeguards information, declined to permit any presump-l tion that a party (discussing intervenors), who has demonstrated stand-l ing in a proceeding cannot be trusted with sensitive information. /d.; see I

also Diablo Canyon, CLI-80-24, su;'ra. We cannot assume that the em-ployees of Applicant, selected to be privy to information under a protec-tive order, as a class of persons, cannot be relied upon to protect sensi-tive information under Board order and a suitable nondisclosure 3greement. Moreover if, as suggested by the Staff, there are persons em-ployed by Applicant or its contractors who might be privy to sensitive in-l formation and who are not trustworthy, that fact could be made known exclusively for the Board's consideration in fashioning suitable protec-tion under the various means available to us. Further, if the Staff has knawledge that persons employed by Applicant or its contractors cannot

(

be trusted to receive information on the QA/QC issue, that information I

in itselfis relevant to the issue and must be provided to the Board.

Given the protective methods available to the StalT, we find that the Staff will not be injured by providing otherwise appropriate information in the reopened proceeding. In addition, the StalT may avail itself of the i

provisions of Section 2.744(c) by submitting information in camera ex-clusively to the Board to determine whether the information is relevant I

and necessary to the proceeding, and whether the " investigatory records" exemption should apply. In other words, if the Staff complies with the protective scheme anticipated by the regulations, not only will it not be injured, but it might succeed in not producing the information.

In that respect the Staffs appeal and stay application is premature be-cause the Staff has not yet put forth any claim of exemption under Sec-tion 2.'/90(a)(7) to a test.

(3) Harm to Other Parties The Applicant would be injured by any stay because of delay and says so. The Staff's pleadings have been inconsistent with respect to any l

delay in the proceeding. We are told that the timing of the initial decision 100 1

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O would not be affected because we have already caused a delay by reopen-ing the evidentiary record. Stay Application at 7-8. We simply do not un-derstand that point.

The Staff also reports to this Board that the recent postponement of the fuel load date from August to December 1983 may accommodate any delay. /d. at 8. But the Appeal Board has been informed that the Nff cannot predict when the inspections and investigations will be

leted but that many if not all of the underlying allegations would re-caire resolution before fuelload. Motion for Directed CertiScation at 15 n.21. Because the Staff has so far failed to present any plan for the pre-sentation of evidence on yet-to-be-completed ir.vestigations, it seems clear that the Staff's unwillingness to share with the Board the nature of the health and safety concerns underlying the allegations has the tenden-cy to prolong the proceeding. We cannot Gnd, nor need we find, that the actual initial decision will be delayed to or beyond the projected fuel-load date. The parties, especially the Applicant, are entitled to a reasonably prompt decision regardless of fuel loading.

Intervenors also state that they will be harmed if the stay is granted be-cause the Quality Assurance litigation will be further segmented and the proceeding will become even more unwieldy. This potential effect is nothing more than an inconvenience and does not weigh heavily against granting the stay. But delay in presenting Staff evidence might take the results of the investigations out of the adjudication. The StafT suggesis that this is one of the options available to the Board. Motion for Directed Certification at 15.6 That course would deny full participation by Interve-nors or place very heavy burdens upon them.

(4) The Public Interest The public interest lies in providing for an undelayed hearing pursuant to Section 189a of the Atomic Energy Act, an undelayed initial decision based upon a complete and reliable evidentiary record, and in protecting sensitive information so that inspections and investigations important to public health and safety will not be compromised. With suitable protec-tive measures in place for the reopened hearing, the public interest lies in denying the application for a stay pending appeal.

6 The stafes position on closing the record is ambiguous in the Motion for Directed Certirication cited in the body, the s'afr refers to the option of retammg junsdiction follo=mg the close or the record to re-cerve information of the eventualinspection result. But in the stay Appiscation the stafrasserts that the applicahon " seeks a stay of the rulmg directmg the provision of testimony and documents only for the period of time necessary to complete the investigation into these allegations-" The Board will mauire further mto the staffs intent as me discuss below.

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O II. Tile REOPENED PROCEEDING As noted above, the Staff has not previously explained to the Board its plans for presenting the results of its yet-to-be-completed investiga-tions and inspections. In its hiotion for Directed Certification the Staff adds still another new dimension to the issue. The Staff stated that our direction to present evidence on uncompleted investigations may be premature and may produce information oflittle value. /d. at 13-14, 16.

Our order of July 1, directing an evidentiary showing, and the telephone conference preceding it did not address that problem - perhaps the StalT believed that it was obvious.

Storeover the Staff has informed the Appeal Board that our order tends to " strain already limited agency resources because, instead of providing evidence at the end of inspections which are documented in reports, a premature hearing would cause delays in inspector efforts to resolve allegations." /d. at 14. Similarly the alleged waste of inspector resources was never raised as a consideration. If the Stafrs position about the potentially poor quality of evidence and inspector inefliciency in a premature hearing is an important concern, it is a matter worthy of very careful consideration. But it was not a consideration within the ambit of our July I order and properly should not be the subject of the stay application - or the appeal for that matter. We have not been provided an opportunity to explore the bases for StalTs concern and we recognize that it is our responsibility to do so. floating Nuclear Power Plants, supra,8 NRC at 203.

Our problem with the StalTs position, as we see it explained to the Appeal Board, is that all investigations and inspections seem to fit pre-cisely into one of two categories - crimpleted or uncompleted. If noth-ing of value can be learned from any uncompleted inspection and

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investigation, so be it. We will listen to that explanation. But, if an expla-nation of the nature of the allegation and a description of the evidence so far gathered can put a matter to rest, or indicate a need for further inquiry, the Board has the responsibility to inquire timely into the sig-nificance and relevance of the pending inquiries to the issues in our proceeding.

Accordingly the Bc,ard denies the StalTs application for a stay pending appeal. The Board will take up the issue of whether ongoing investiga-tions and inspections are ripe for hearing at the opening session of re-i 1

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cpened hearing on August 9, 1983.7 We shall also consider any protec-tive m:asures which may be necessary. The StafT is directed to be pre-pared for the discussion. This phase of the reopened hearing may be in camera.

FOR Tf[E ATOMIC SAFETY AND LICENSING BOARD Ivan W. Smith, Chairman ADMINISTRATIVE LAW JUDGE Bethesda, Maryland July 26,1983

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l 7 In a telephone.ynference call on July 21.1983 the parties agreed th.t the time allocated for the re-opened hearmg. August 9-12. would be sufTicient to hear endence from the Apphcant and from the staff on completed inspections and investigations The Board has not been able to schedule a hearms to i

receive evujence on inspections and msestigatsons not >ct completed.

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O Cite as 18 NRC 104 (1983)

LBP-83-41 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD l

Before Administrative Judges:

Ivan W. Smith, Chairman Dr. Dixon Callihan Dr. Richard F. Cole in the Matter of Docket Nos.STN 50 454 OL STN 50 455-OL (ASLBP No.79-411 PE)

COMMONWEALTH EDISON COMPANY (Byron Nuclear Power Station, Units 1 and 2)

July 28,1983 The Licensing Board denies Intervenors' motion to reopen the record l

for the purpose of receiving certain inspection reports.

l RULES OF PRACTICE: REOPENING THE RECORD A motion to reopen the record must be timely, must demonstrate that l

signiDeant new evidence of a safety question exists and that the new evi-dence might materially affect the outcome of the proceeding.

RULES OF PRACTICE: REOPENING Tile RECORD Where Intervenors do not seek a general reopening of the evidentiary record, but only to supplement the record with certain inspection reports, it is read;ly possibie to settle the matter by considering the factu-al responses of the Applicant and Staff to determine if the signiGcant safety problem actually existed and, if so, whether it has been resolved.

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O RULES OF PRACTICE: REOPENING THE RECORD Because each motion to reopen the record must be evaluated on its merits, and because the Applicant's burden of proof and the Staff's over-sight responsibilities give strong leverage to Intervenors, the board will examine carefully the Intervenors' pleadings for detail of factual analysis as one of the factors in determining how seriously the matter is viewed by Intervenors.

TECIINICAL ISSUE DISCUSSED Integrated flot Functional Testing.

MEMORANDUM AND ORDER DENYING INTERVENORS' MOTION TO SUPPLEMENT Tile QA/QC RECORD The Intervenors, Rockford League of Women Voters and DA ARE/ SAFE, by their June 29, 1983 motion, seek to have the evidentiary record supplemented with respect to the Quality Assurance / Quality Control Contention I A. The motion is founded on three Region til inspection reports regarding preoperational testing at Byron.' The motion urges the Board to reopen the record to receive the inspection reports but requests no other evidentiary proceeding.

During the period March I to May 4,1983, Region til inspectors conducted two routine inspections of the Byron " Integrated flot Functional" testing (Exhibits B and C) which resulted in an enforcement conference among cognizant Region ill officers and Commonwealth Edison personnel (Exhibit A). The first inspection by the NRC resident inspectors resulted in a Level IV Notice of Violation because the inspectors perceived departures from 10 C.F.R. 50, Appendix B, Criterion XI which requires, among other things, a testing program in accordance with written criteria. Noteworthy in the resulting Notice of Violation was the view by Region ill that all channels of the loose parts monitoring system were in a high alarm state and that the operators reacted inadequately, that, although the reactor coolant I Inspection Report No 50-454/83 23 (DE) (Enhibit A). Inspection Report No. 50-454/83-18 (DPRP). 455/8315 (DPRP) ( E n hibit Bl. and Inspection Report N os. 50 454/8317 (DE).

50-455/8314 (DE) (Eshibit C). The enhibits were attached to the motion Eshibii 4 and Eshibii B were transposed 105

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9 system pressure and temperature were not maintained within expected ranges, testing continued; and that operators had not been adequately briefed before the test concerning the reactor coolant temperature and pressure control bands. Exhibit B.

The second inspection, by a test program specialist, also produced Region 111 criticism of the Integrated Hot Functional testing and another Level IV Notice of Violation because, in the words of the notice:

(Contrary to Appendix B and the Byron Startup Manual], the applicant approved and issued for performance Test Procedu e 2.63.10. " Integrated Hot Functional."

without performing an adequate review of the procedure as evidenced by incomplete or missing acceptance criteria, data not designated as acceptance criteria, misleading typographical errors, incomplete testing provisions, and incomplete objectives.

Exhibit C.

The Intervenors, however, do not analyze or even discuss the particular items of alleged violations, but focus instead on the strong reaction by Region 111, especially Engineering Director R.L. Spessard, to the findings of the inspectors. In the special enforcement conference, Mr. Spessard informed high-level Commonwealth Edison officials that the NRC views inadequate preparation of preoperational test procedures and inadequate preopers'.ional testing at Byron as serious problems and that the observed problems are not indicative of a quality test program.

He warned that the problem cannot continue. Exhibit A at 2 of details.

As pertinent, Region 111 summarized the enforcement conference as follows:

The NRC cautioned against an overemphasis on schedule and production which may have contrituted to inadequate procedures and an operations staff which was ill-prepared for the increased involvement of IHF. The licensee acknowledged the difficulties encountered in the IHF, but took exception to the opinion that overemphasis on a schedule may have influenced the events. The NRC pointed out that the problems noted were primarily associated with personnel attitude and preparation as opposed to equipment. The NRC stressed that, although the licensee l

corrective actions appear to be reacting to specific NRC observations, a more aggressive attitude is needed to discern potential problems and prevent their occurrence. The licensee responded by stating that potential problems are pursued in this way with many successful results but that these successful efforts go unnoticed by the NRC.

The enforcement conference concluded with the NRC stressing the importance of quality test program performance and the licensee stating the intent to correct the problems and perform a complete and quality test program.

Exhibit A at 4.

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O The Applicant answered Intervenors' motion in part by providing letters containing the corrective actions already undertaken and proposed. Although there is no expert evidence, and there is insufficient contextual evidence, upon which this Board can judge whether the responses are technically suf0cient, the responses to and explanations of the perceived problems appear to be sensible and founded on rational engineering judgments. More important, it is clear that a dialogue between Region 111 and Commonwealth Edison exists and that corrective action was initiated promptly.

The NRC Staff answered the motion in part by a factual response in the form of the aflidavit of Mr. Forney who is now Region lil's Chief of Special Cases and was the senior resident inspector at Byron. lie conducted one of the inspections at issue and participated in the enforcement conference. Mr. Forney provided the only testimony concerning preoperational testing during the hearing.

lie makes several statements relevant to the motion. The strong language in the inspection reports was intended to convey the foremial seriousness of the deficiencies. Level IV violations are "of more than minor concern but are not a significant safety issue." If uncorrected they could lead to a more serious concern. The concern of Region til was the need for Applicant to initiate immediate and effective resolution of the deficiencies so that they do not become a significant safety issue according to Mr. Forney.

Mr. Forn;y stated further that the inspection reports are not, as stated by Intervenors, an admission by NRC Staff that the Applicant is conducting a substandard preoperational testing program at Byron.

Preoperational testing is extremely complex and Integrated Hot Functional testing is even more complex and normally takes 30 40 days to complete. Due to this complexity and scope and the large number of inspector hours (Exhibits B and C) ". the identification of many items of noncompliance is not unexpected."

Mr. Forney also recognizes that the Applicant has implemented corrective action and has restarted Hot Functional Testing which the StalT has closely monitored and will continue to monitor. He does not expect that the identified deficiencies will go uncorrected, and, in any event the StalT would not permit them to go uncorrected. He also asserts that the StafTs position on the QA/QC contention remains unchanged as a result of these inspection findings.

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O We have recently reviewed prevailing Commission law on the standards for reopening evidentiary hearings.2 in Wolf CreeA where the motion to reopen was filed after the initial decision, the standard applied by the Appeal Board was that the motion must establish that a different

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result would have been reached had the respective information been considered initially. 7 NRC at 338. In BlacA Fox. the record had been

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closed but the motion was filed before the initial decision. There the i

Appeal Board employed as a standard whether the outcome of the proceeding might be afTected.10 NRC at 804.

Recently the Appeal Board in Paci//c Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-728,17 NRC 777, 800 n.66 (1983) commented on the various ways in which starHards for reopening have been stated, but announced that the traditional standard requires that the motion be timely, that it demonstrate that l

signiGeant new evidence of a safety question exists and that the new l

evidence ". might materially affect the outcome" of the proceeding.

l This standard seems to fit comfortably the circumstances of the present case.

Intervenors' motion is timely. Although inspection reports, Exhibits B and C, were issued in late May, it is the later report of the l

enforcement conference, Exhibit A, which has raised the Intervenors' l

concerns. That report was available only about one week before the motion was filed. We refer to this circumstance in slightly difTerent context below.

Both the Applicant and the StafT state that the inspection reports do

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not raise significant safety issues; that Severity Level IV violations do l

not meet the standard for reopening. As we noted above, the Staff's affidavit asserts that Severity Level IV violations ". are violations which are of more than minor concern but are not a significant safety issue.

." Forney Affidavit at 2. However, the Commission's General Policy and Procedures for NRC Enforcement Actions (10 C.F.R. Part 2, Appendix C) with respect to both reactor operations (Supplement 1) and reactor construction (Supplement II) define, as pertinent, Level IV violations as failures to meet regulatory requirements "that have more j

than minor safety or environmental significance." But whether it is l

2 Memorandum and order setting specul Deposamn sesuon. May 12.1983. at 3 5. <mnr Poork Gas and Electre Co. (Diablo Canton Nuclear Power Plant. Unas I and 2) CL1-815.13 NRC 361. 362 (1981). PuNr Serrar Co. of o4fa6oma (Black Fos sianon. Unas I and 2). AL AB-573.10 NRC 775.

804 (1979 4 Kansas Gas and Ekstra Co twotf Creek Genersung sianon. Umt 1). AL AB-462. 7 NRC j

l J20. 338 (1978). PuNr Serrar Co. of Arw Hampshire (seabrook stanon. Unas 1 and 2). AL AB-422. 6 NRC 33,64 n 34 (1977h irrmont Tanarr Aurtrar Pa=cr Corp. (vermont Yar.kee Nuclear Pomer stahont. AL AB-138. 6 AEC 520. 523 (1973).

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'J appropriate to apply the policy's definition of" safety signincance to the standard for reopening an evidentiary record will be left for another day because, in the case before us, the issue will not turn on the label placed on the problem by Region 111. The particular question presented by the pleadings before us, especially the Staff's answer, is whether the prospective nature of the safety concern removes the issue from consideration. The Board recognizes that the problems found during the non-nuclear hot functional testing at Byron did not and could not directly endanger the health and safety of the public. The description of the alleged items of violation does not, standing alone, establish that the matter was serious.

On the other hand Region Ill's response to the violations was very strong. In addition, Mr. Forney's affidavit makes it clear that the problems observed at Byron could become serious if uricorrected. We see no reason in law or in logic which would remove a safety concern from consideration because the portended risk to the public has not yet arrived.

As was the case when the Board provided for further inquiry into John Hughes' allegations ) we find useful guidance in Vermoni Yankee, supra. There the Appeal Board ruled that Thus, esen though a matter is timely raised and involves significant safety considerations, no reopening of the evidentiary hearing will be required if the affidasits submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact, i.e., if the undisputed facts establish that the apparently significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding.

6 AEC at 523.

The Vermoni Yankee reasoning is even more appropriate in this case because, unlike the movant there, Intervenors here do not seek a general reopening of the evidentiary record on the issue. They seek only to supplement the record with the three inspection reports. Therefore it is readily possible to settle the matter by considering the factual responses of the Applicant and StalT to determine if a significant safety problem actually existed, and if so, whether it has been resolved. Thus we have a paradox. The matter became significant in part because of the Stafi's strong response which is relied upon by Intervenors as evidence of a significant safety problem. Because of that strong response, the matter in part loses its significance. The corrective actions produced by 3May 12,1983 Memorandum and Order, note 2, spra 109

O the Staff's enforcement conference, the additional explanatory information provided by the Applicant, and the Staff's monitoring commitment provide reasonable assurance that the matter has been or will be timely resolved.

Moreover, since Intervenors seek nothing more than to supplement the record with the three inspection reports, and since reopening the

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record would also require receiving into evidence the factual responses of the Staff and Applicant, and considermg the fact that there is little other litigation on this sub'.ssue,' reopening the record would not likely materially affect the outcome of the proceeding on this contention.

Accordingly, based upoi our conclusion that if a significant safety concern existed, it has bem resolved, and that receiving the information into the record would not likely materially affect the outcome of the proceeding, Intervenors' motion cannot prevail.

However, the Board prefers not to leave the matter solely on the narrow grounds that a dispute between the parties has been decided. We noted Mr. Forney's rathen brief comment that because of the complexity of the Hot Functional Testing program and the increased number of inspection hours required for preoperational testing, identifying many items of noncompliance is not unexpected. Affidavit at 3. This conclusion seems logical to us. Presumably preoperational testing is intended to test not only the machines and their operators, but the quality assurance program as well. Intervenors' major approach to the quality assurance contention was that the Applicant and its contractors were institutionally incapable of complying with Appendix B to 10 C.F.R. Part 50. Although actual quality assurance failures may be indicative of any institutional incapacity, the events reported in the inspection reports did not seem to rise to that level.

Finally, we address Applicant's request that the Board provide some guidance to the parties so that repeated filings such as the instant motion may be inhibited. As Applicant recognizes, each motion must be evaluated on its merits. There is little relief that the Board can afford.

However we were struck with the apparent ease with which Intervenors were able to send the Applicant and the Staff scurrying for factual responses to the motion and to create the need to carefully prepare answering legal arguments. The Beard also devoted a substantial efTort in considering the matter, and in preparing this order. We do not suggest that counsel for Intervenors had those purposes in mind. She is 4 Mr. Forney rererred brie 0y to preoperational testing in his written direct testimony. Testimony or Region !!! on League Contention IA. ff. Tr. 3586, at 910. In ract he summarized much or the preoperation inspection activity at issue in the Intervenors' motion during cross-eaammation but no party or the Board pursued the matter. Tr. 380912.

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O also very busy in this proceeding and states that the inspection reports were carefully selected because of the significance of the matters raised.

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In any event, we do not believe she wou:J abuse the process. Strong leverage is available to intervenors because of applicants' burden of proof and the Staff's oversight responsibi'ities. This is a normal phenomenon of NRC licensing adjudications. Even so, if occasions for similar motions arise in the future, the Board will examine carefully the Intervenors' pleadings for detail of factual analysis, somewhat lacking in the present motion, as one of the factors in determining how seriously the matter is viewed by Intervenors.

Intervenors' motion is denied.

FOR Tile ATOMIC SAFETY AND LICENSING BOARD Ivan W. Smith, Chairman ADMINISTRATIVE LAW JUDGE Bethesda, Maryland July 28,1983 111

O Cite as 18 NRC 112 (1983)

LBP-83 42 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James A. Laurenson, Chairman Dr. Jerry R. Kline Dr. M. Stanley Livingston in the Matter of Docket No. 50 322-OL-3 (Emergency Planning Proceeding)

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

July 28,1983 The Licensing Board denies a petition to intervene in the separate emergency planning hearing in this proceeding by a petitioner supporting Applicant's ofTsite emergency plan and favoring issuance of an operating license to Applicant. The Board finds that the petition was nontimely, and that a balancing of factors pursuant to 10 C.F.R. s 2.714(a)(1) re-quires that it be denied.

OPERATING LICENSE PROCEEDINGS: ESTABLISIIMENT OF SECOND LICENSING BOARD When a new licensing board is established to conduct a separate hear-ing in an ongoing operating license proceeding, the establishment of such a new Board does not constitute a new Notice of Hearing; the timeliness of petitions to intervene will be evaluated in light of the initial notice of hearing.

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O RULES OF PRACTICE: NONTIMELY PETITION TO INTERVENE Where a licensing board Gnds that a nontimely petition 'o intervene is inexcusably late, that it would significantly delay the proceeding if admitted, that the petitione: has made no showing ofits ability to make a substantial contribution to the record, and that the petitioner's interest is adequately represented by another party to the proceeding, the petition will be denied notwithstanding the fact that there are no other means available to protect petitioner's interest.10 C.F.R s 2.714(a)(1).

MEMORANDUM AND ORDER DENYING PETITION TO INTERVENE OF CITIZENS FOR AN ORDERLY ENERGY POLICY, INC.

I.

PROCEDURAL HISTORY On March 18, 1976. the Nuclear Regulatory Commission pubiished a notice in the federal Register regarding receipt of an application for an operating license and an opportunity for hearing. 41 Fed. Reg.11,367 (1976). Various petitions to intervene were submitted and allowed and an operating license proceedia;; commenced. Over the course of that proceeding, there have been numerous changes in personnel among the members of the licensing board. On August 24, 1982, a separate licensing board was appointed to preside over security planning issues of the Shoreham operating license proceeding. On May 11,1983, the instant board was appointed to preside over emergency planning issues in the Shoreham operating license proceeding.

On June 14, 1983, the Citizens for an Orderly Energy Policy, Inc.

(hereinafter " Citizens") Gled a petition to intervene in the emergency planning aspect of Shoreham's operating license proceeding. Citizens, on behalf ofits members, supports the offsite emergency plan submitted by Applicant, Long Island Lighting Company (hereinafter "LILCO"L Citizens also favors issuance of an operating license to LILCO. Citizens asserts that most of its members live within a 20 mile radius of Shoreham. It asserts that it is entitled to intervene "as of right" or, in the alternative, it requests admission to the proceeding under the Board's discretionary authority. Finally, Citizens asserts that its petition is timely but, in the alternative, it alleges that the petition should be allowed because it meets the requirements for late filings. Citizens 113

O submitted affidavits from several of its members along with five contentions.

LILCO supports Citizens' petition. SulTolk County, an Intervenor herein, does not oppose the petition. NRC Staff and the Town of South-ampton (hereinafter "Southampton") oppose the petition.,None of the other parties submitted a written response to the petition. NRC Staff op-poses the petition to intervene for the following reasons: Citizens has not demonstrated standing to intervene as of right; Citizens cannot trake a strong showing for discretionary intervention; Citizens' petition is late-filed and no good cause is established for such late filing; the late-filed petition does not meet the test of 10 C.F.R. l 2.714(a) fpr late-filed petitions; and Citizens' contentions are not required and should be disregarded. Southampton asserts the same arguments as NRC Staff.

At the prehearing conference of July 13,1983 to consider this petition to intervene, counsel for Citizen; presented an oral argument. Counsel stated that Citizens interded to present witnesses to testify in support of its five proposed contentions. It also expected to participate in cross-examination (Transcript p. 34, hereinafter T. 34). Citizens based its right to intervene on the Atomic Energy Act (T. 35) and its good cause for late filing, if any, upon the assertion that in 1976, when the original Notice of Opportunity for Hearing was published in the Federal

Register, l

SufTolk County was cooperating in the emergency planning process. Citizens had no need at that point to try to enter this proceeding. It is only very recently that these l

events have come about and it is only very recently that Citizens beliesed its participation is necessary.

(T. 36-37).

II. ISSUES Is the petition timely and, if nontimely, should it be entertained?

III. APPLICABLE LAW As pertinent here, i 189(a) of the Atomic Energy Act of 1954, as amended,42 U.S.C. l 2239(a), provides that in a proceeding under the Act for the granting of any license, "The Commission shall grant a hearing upon the request of any person whose interest may be afTected by the proceeding."

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The NRC regulations at 10 C.F.R. 6 2.714(a)(1) provide in pertinent part that a

lainy person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene..The petition and/or request shall be filed not later than the time specified in the notice of hearing.. Nontimely filings will not be entertained absent a determination

. that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set out in paragraph (d) of this section:

(i) Good cause,if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

The most recent Commission decision regarding the criteria for accepting late-filed contentions based on information contained in documents filed after commencement of a licensing hearing was Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CL1-8319,17 NRC 1041 (1983). In Catawba, supra, the Commission modified a decision of the Appeal Board as follows:

For the reasons discussed belcw, the Commission believes that the Appeal Board erred in holding that Section 189a. of the Atomic Energy Act requires a Licensing Board to treat the good cause factor as controlling in ruling on the admissibility of a contention that is filed late because it is based solely on information in institutionally unavailable licensing-related documents. Rather, the Commission finds that all of the factors in 10 C.F.R. 2.714(a)(1) should be applied by the Licensing Board, including the Appeal Board's three-part test for good cause. The Commission believes that the five factors, together, are permitted by Section 189a.

l of the Act and are reasonable procedural requirements for determining whether to admit contentions that are filed late because they rely solely on information contained in licensing-related documents that were not required to be prepared or l

submitted early enough to provide a basis for the timely formulation of contentions.

l These procedural requirements are consistent with a petitioner's obligation to l

examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could i

I serve as the foundation for a specific contention. Accordingly, the institutional unavailability of a licensing-related document de:s not establish good cause for filing a contention late ifinformation was publict) available early enough to provide the basis for the timely filing of that contention.

Id. at 1045.

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IV. ANALYSIS A.

Nontimely Filing of Petition to Intervene We first turn to the issue of the nontimely filing of the petition and the factors to be balanced in decidmg whether to entertain this petition.

We do so because we find these issues dispositive of the petition.

Although LILCO supports Citizens' petition to intervene and Suffolk County does not oppose it, botn oi them agree with NRC Staff and Southampton that the petition is nontimely. Citizens' does not dispute the fact that the only notice of opportunity for hearing that is pertinent here was published in the federal Register on March 18, 1976. Rather, Citizens argues "that because this special proceeding was established so recently, it could not have acted in a more expeditious fashion."

(Citizens Reply at 5.) Citizens further argues that "[t]he need to litigate this particular issue did not arise until late April 1983." Ibid. Citizens implies that the establishment of this Board constitutes a "special proceeding" which will somehow justify the intervention of new parties.

In fact, the establishment of this Board was no more than the exercise of a procedural device sanctioned in 10 C.F.R. Part 2, Appendix A, I(c)(1). That section permits the separation of one or more. issues from a construction permit or operating license proceeding and assignment of such issue (s) to a different board. Citizens is in error when it asserts that the establishment of this Board constituted a "special proceeding" where new parties could file timely requests to intervene.

We find that the Notice of Opportunity for Hearing was published in the Federal Register on March 18, 1976. 41 Fed. Reg.11,367. NRC regulation,10 C.F.R. ( 2.714(a), provides that a petition to intervene must be filed within the time specified in the notice of hearing. Citizens' petition to intervene was filed more than seven years after the expiration of the time specified in the notice. Pursuant to 10 C.F.R.

( 2.714(a) we find Citizens' petition to intervene to be nontimely.

B.

Analysis of Late-Filing Factors The provisions of 10 C.F.R. ( 2.714(a)(1) and the recent Commission decision in Catawba, supra, require that all five factors enumerated in the above regulation shoulu be applied to late-filed contentions even where the licensing-related document, upon which the contentions are predicated, was not available within the time prescribed for filing timely contentions. The Commission in Catawba, supra, went on to state that a petitioner has an " obligation to examine the publicly available documentary material pertaining to the facility in question with 116 i

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sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention." Catawba, supra, at 1045.)

Thus, the unavailability of a licensing-related document does not establish good cause for filing a late contedlion if information was publicly available previously to provide for a timely filing of that contention.

Although NRC case law speaks in terms of nontimely filing of contentions, the specific language of 10 C.F.R. 4 2.714(a)(1) provides that "[nlontimely filings will not be entertained absent a determination by the

. presiding officer

, that the perition

, should be granted based upon a balancing of the following factors

" (emphasis supplied). Hence, the decisions of the Commission and Appeal Board concerning the test for admission of nontimely contentior.s have equal application to nontimely petitions to intervene.

The above analysis is pertinent to the instant petition because Citizens asserts that it was unaware of any need to litigate the instant matter until late April 1983, apparently because of the Board Order of April 20, 1983, LBP 83-22,17 NRC 608, denying Suffolk County's motion to terminate the proceeding. We will proceed to an analysis of the five factors to be considered in determining whether to grant the late-filed petition.

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Good causeforfailure tofile on time in Catawba, supra, at 1047, the Commission specifically endorsed "the Appeal Board three-part test" for determining the good cause factor of a late-filed contention which

1. is uhotly dependent upon the content of a particular document;

2. could not therefore be advanced with any degree of speciGcity (if at alD in ad-l vance of the public availability of that document. and

3. is tendered with the requisite degree of promptness once the document comes into existence and is accessible for public e samination.

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Id. at 1043-44.

l At the outset, we must determine whether the instant petition is l

predicated on any such previously unavailable, licensing-related l

document. NRC Staff states that other i.itervenors have asserted a desire to litigate emergency planning since January 1980 and that in March 1982, Suffolk County repudiated the County-L,lLCO offsite emergency plan. On February 23, 1983, Suffolk County announced that it would not adopt or implement any offsite emergency plan for 117 l

O Shoreham. On May 26,1983, LILCO filed its emergency plans. Citizens asserts that the LILCO plans filed on May 26, 1983 constituted the previously unavailable, licensing-related documents that establish good cause for the late filing of this petition and contentions.

As stated in its Petition to Intervene, p. 4, most members of Citizens

" live within 20 miles of the Shoreham Nuclear Power Station." The longstanding emergency planning dispute between LILCO and Suffolk County has been the subject of extensive media coverage within SufTolk County. We find that even with regard to the County's intention not to participate in emergency planning, all of the documentary material has been available to interested persons since at least February 1983. Thus, Citizens failed to pass the three-part Carawba test for determining

" good cause" for late-filed contentions. We find that Citizens' petition and contentions are not wholly dependent upon the LILCO offsite emergency plan. Moreover, the information cited by Citizens to justify its late filing was publicly ava' fable for almost four months prior to the filing of the instant petition. The licensing board decision of April 20, 1983 is irrelevant to the " good cacse" issue here. In conclusion, we find that Citizens failed to establish " good cause" for its late filing.

2.

A vailability ofother means to protect),etitioner's interest Citizens asserts that "no other means exist, at the present time, for Citizens to protect its interests." (Petition at 11.) NRC Staff asserts that Citizens "can argue its position on Shoreham offsite emergency planning directly to Suffolk County government." (NRC StalT Response at 10.)

In any event, Staff asserts that this factor " counts for very little when weighed against the fact that the petition is seven years late." / bid. In South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station.

Unit 1), ALAB-642,13 NRC 881 (1981), the Appeal Board reversed a licensing board's allowance of an untimely intervention petition. The Appeal Board found that although there were no other available means to protect the petitioner's interests, tnat factor and the factor of the extent to which other parties would protect that interest were entitled to less weight than the other three factors enumerated in i 2.714(a). While it is true that any citizen may petition the government, we find that pursuant to 10 C.F.R. ( 2.714(a)(1), the factor of "the availability of other means whereby the petitioner's inter-est will be protected," should be resolved in Citizens' favor. However, in accord with Summer, supra, we conclude that this factor is enti-tied to less weight than other factors enumerated in 10 C.F.R.

% 2.714(a)(1).

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3.

Development ofa sound record Citizens asserts that most of its members "are recognized authorities in the field of nuclear power" and that some of its members " work professionally in radiological emergency planning." In Missis !gpi Pvwer d Light Co. (Grand Gulf Nuclear Station, Units I and 2), ALAB.704, 16 NRC 1725 (1982), the Appeal Board set forth a petitioner's burden.

in demonstrating special expertise on the subject it seeks to raise as follows:

When a petitioner addresses this criterion it should set otn with as much particularity as possible the precise issues it plans to cover, identify its prospectiv witnesses. and summari:e theor proposed testimony. l Citation omitted.] Vague assertions regarding petitioner's ability or resources, as we have here, are insufficient.

/d. at 1730 (emphasis supplied).

Citizens makes no attempt to identify its prospective experts or summarize the proposed testimony or other evidence it expects to offer on the record. Citizens' statements concerning its ability to "make a valuable contribution to the proceeding" are vague and insufTicient.

Suffice it to say that Citizens failed to establish that its intervention in this proceeding could be expected to assist in developing a sound record.

4.

Representation ofinterest by existing parties Citizens asserts that, "[w]hile LILCO and Citizens both favor operation of the facility, the utility does'not have the same interest or perspective as does Citizens." (Petition at 10.) Citizens does not specify in what way its interest will not be represented by LILCO. Citizens seeks to intervene in this proceeding "in support of the emergency plan submitted by Applicant." /d. at 1. It is not readily apparent to us, and Citizens has not established, why LILCO would not represent the interest of Citizens. Accordingly, the factor of representation ofinterest by existing parties is resolved against Citizens.

S.

Delay and broadening ofissues At the prehearing conference, counsel for Citizens commented on the

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role it envisioned for itself as follows:

We intend to present witnesses on the contentions that we didfile. We would also participate in the cross. examination of not all witnesses but those witnesses that me behewd, or on those assues that me betwwd ne couldpresent aidin dewfoping the record.

119

O The members of Citizens do habe a strong background not only in nuclear energy but also in emergency planning. A major portion of Suffolk County's contentions deal with accident assessment. They allege that accident assessment is not adequate or that it can't be done.

Members of Cits: ens could be able to aJJress that m a lot ofJetail, and I think that is an important point that me would be able to address.

~-

(T. 34-35 emphasis supplied.)

While it is true that this aspect of emergency planning is just beginning, the Board has informed the parties that it will order an ex-pedited schedule for discovery, prehearing motions, and hearing. (T. 86, 97,103 and 105.) LILCO has already Gled a motion for a low-power operating license with an indication that construction of Shoreham will be complete in August 1983.

The general principle concerning delay was stated by the Appeal Board as follows: " Manifestly, the later the petition, tne greater the potential t' tat the petitioner's participation will drag out the proceeding."

Detroir Edison Co. (Greenwood Energy Center, Units 2 and 3),

ALAB-476,7 NRC 759,762 (1978).

Considering the lateness of the instant petition and the role Citizens envisions for itself in this proceeding, we find that Citizens' participation herein would delay the proceeding and broaden the issues.

In light of the statements of Citizens' counsel at the prehearing, we conclude that an allowance of the instant petition would significantly delay this proceeding. Accordingly, this factor is also resolved against Citizens.

C.

The Balancing Test Based upon our analysis and evaluation of the five factors enumerated in-10 C.F.R. f 2.714(a)(1), we find that four of those factors weigh against allowing intervention: Citizens is inexcusably late, offers no showing of its ability to make a substantial contribution to the record, is adequately represented in interest by LILCO, and will significantly delay the proceeding if admitted herein. Weighing in favor of allowing intervention is the unavailability of other means to protect Citizens' interests. As noted above, this latter factor is entitled to less weight in the balancing process. The issue is not difficult to resolve. Pursuant to 10 C.F.R. f 2.714(a)(1), we find that Citizens failed to establish that its petition should be granted and we deny Citizens' petition to intervene.

Accordingly, we do not reach the issues of Citizens' standing, 120

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discretionary intervention, or the propriety of Citizens' contentions in support of LILCO's offsite emergency plan.

ORDER WilEREFORE, IT IS ORDERED that the " Petition of the Citizens for an Orderly Energy Policy, Inc. to Intervene in the Emergency Planning Hearing" is DENIED.

FOR Tile ATOh11C SAFETY AND LICENSING BOARD James A. Laurenson, Chairman ADMINISTR ATIVE JUDGE Dr. Jerry R. Kline ADh11NISTR ATIVE JUDGE July 28,1983 Bethesda, hlaryland Dr. hl. Stanley Livingston concurs in this hiemorandum and Order but was unavailable to sign it.

121 w-e

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Cite as 18 NRC 122 (1983)

LBP 83 43 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chairman Dr. Kenneth A. McCollom Dr. Walter H. Jordan i

In the Matter of Docket Nos.50 445 OL 50 446 OL (ASLBP No. 79 430-060)

TEXAS UTILITIES GENERATING COMPANY, et al.

(Comanche Peak Steam Electric Station, Units 1 and 2)

July 29,1983 RULES OF PRACTICE: DEFAULT FOR NOT FILING REQUIRED FINDINGS A party that does not file required findings is in default on the related issues. The Board may examine those issues to determine whether they should be raised by it sua sponte; otherwise, the issues are excluded from the case.

RULES OF PRACTICE: PROPOSED INITIAL DECISION Rather than issuing an initial decision in its finished form, a Board may choose to obtain comments from parties on a " proposed" decision before it makes its final choice. This is particularly appropriate when two of the Board's members were recently appointed and the record was complex.

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122

TECliNICAL ISSUES DISCUSSED Quality assurance Quality assurance, number of inspectors Quality assurance, operational Non-conformance reports, number of '

Emergency planning Rock overbreak Dental concrete Limestone (susceptibility to fracture during blasting)

Settlement crack, concrete

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i Concrete settlement crack Morale, low Water stops, improper tacking Polar crane, gaps in rails Discouragement of non-conformance reports ' ~

liarassment, quality assurance inspectors Surface preparation, near white blast Maximum roughness, steel substrate Paint, force-curing with smoking heaters Welding Welding, heat numbers only on structural members Welding, weave-beading Welding, downhill l

Welding, heating of weld rods Welding, plug welding, inspection Welding, control of welding rods Torque Seal I

Quality assurance, interpretation of Torque Seal by inspectors Traceability of materials l

Torque values, procedures Quenching welds Flange bolt-up joints, inspection delayed Piping, wall thickness Piping, cold springing flydrogen control Recombiners, electrical ATWS, Salem Unit I analogy Boron injection tank, deletion of Departure from nucleate boiling ratio (DNBR)

Boron crystals.

l 123 l

1

t a

4 O

-JROPOSED INITIAL DECISION (Concerntag aspects of construction ecality control, emergency l

s planning and Boa:Cqrtetuens) ;'

)

t 5

T

.4 l

This is the first hitial decision in this operating license proceeding.

The issues we decide today relate to particular d(egations of failure of Texas Utilitics Generating Company, t al.'s (applicant's) qeality assur-i ance program' during construction of Comanche Peak and to e egations i

n concerning the adequacy of emergency planningHearings on these par-

)

ticular allegations were completed on September 17,1982 and proposed N

findings of fact were received from the part!es on February 25,1983.2 In this decision we have declared CASE to be in default on each alle-1

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gation on which it has not filed findings of fact. Ilowever, we also have examined each important allegation that is in default in older to deter-mine whether to raise any of these clefaulted issues by ourselves (sua i

sponte). See 10 C.F.R. Q 2.760a. In a few instances, we require some additional evidence before determining whether or not to declare a sua sponte issue.

Two of the three members of this Board were added to it after the tearings on the matters we address. Consequently, we have adopted the unusual procedure of issuing a proposed de;ision. The consequence of calling this a proposed decision is that the Board recognizes that its tecord is complex and that it is wiser, under the cheurnstances,so invite comments on our tentative conclusions before we become committed to them. We expect the parties to object to any aspect of this decision which they believe to be in error. Objections must clearly and logically explain what the suspected error is and the legal and factual arguments on which the objection is based.2 Failure to comply with 'ady' aspect of this required format may result in a default on the objections.

The Board had posed certain questions and taken some limited evidence, to determine whether there is a serious question that the l

Althnugh "quahty assurance" and "quahty control" sometimes are used in 'a speciahzed way, we 1

generally wil' use these words interchangeably in our opmion.

' 2 The state or Temas did not nie proposed rmdmss. Citizens Association ror scand Energy # CASE or miervenor) Gled proposed Gndmss on some or the allegations discussed m this ikession. C AsE indica'ed that et mshed an entension or time to rile proposed rmdmgs on additional issues However. the parties had been granted a sam meek entension ror Ghng or proposed Gndmss Reconsideratic, or December 7 1982 order at 1-2 (December 21.1982L Under the circumstances good cause has nos been shown ror granting CASE more time in which to Gle its proposed Gndmgs 3 we recci.ed Apphcants' summary of the Record Regardmg Weae and Downhill Weldii.g Guly 15, 198D during the prepareson or this decision since other parties have not had an opportunity to som-meni on this ritmg. we have not considered it. Hometer, the Oling is a model or the kwd or specificity me expect in objections to this decisson. It mcludes rootnotes to the record. It also usu en affidavit.

which parties may Gle m support or their objections.r they consider i; helpful t

124 6

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O Board should raise by itself. See 10 C.F.R. ( 2.760a. The Board con-cludes that it is not now raising any of the questions sua spon/e.

I.

CONTENTION 5 AND TIIE APPLICABLE LAW Contention 5 states:

The Applicants' failure to adhere to the quahty assurance /quahty control provisions tequired by the construction permits for Comanche Peak, Units I and 2, and the re-quirements of Appendix B of 10 C.F.R. Part 50, and the construction practices employed, specifically in regard to concrete work, mortar blocks, steel, fracture toughness testing, expansion joints, placement of the reactor vessel for Unit 2, melding, inspection and testing, materials used, craft labor qualdications and work-ing conditions (as they may affect QA/QC), and training and organization of QA/QC personnel, have raised substantial qt.estions as to the adequacy of the con-struction of the facihty. As a result, the Commission cannot make the findings re-quired by 10 C.F.R. ( 50.57(a) necessary for issuance of an operating heense for Comanche Peak.

Order Subsequent to the Prehearing Conference of April 30,19s0, slip op. at 11 (June 16,1980) (unpublished). As the Board has previously indicated,* this is a broad contention calling into question the applicant's entire quality assurance program.

The Atomic Energy Act of 1956, as amended, 4103,42 U.S.C. 6 2133 (1976), authorizes the Nuclear Regulatory Commission to issue licenses for nuclear power plants to applicants "who agree to observe such safety standards to protect health and to minimize danger to life or property as the Coms.lission may by rule establish..." The Commission has, by rule, required that "'ltructures, systems, and components important to safety shall be desig..ed, fabricated, crected, and tested to quality stan-dards commensurate with the importance of the safety functions to be performed." Criterion 1, Appendix A - General Design Criteria for Nuclear Power Plants,10 C.F.R. Part 50. A quality assurance program is required to ensure that the safety functions will be properly performed.

Id. Criteria for the quality assurance program are set forth in Appendix B to 10 C.F.R. Part 50 and must be discussed in the Preliminary Safe:y Analysis Report (PSAR) for construction permit applications and in the Final Scfety Analysis Report (FSAR) for operating license applications.

10 C.F.R. ! 50.34.

The chief concern of the quality assurance program is to identify and correct problems that arise during plant construction or operation.

4Tr.714.

125

i

)

l Indeed, a quality assurance program that failed to find probicms would undoubtedly be inelTective.

A problem identified by the quality assurance program may cause con-cern for the public safety if it cannot be satisfactorily resolved. A pro-gram may also cause concern if it identifies an extraordinarily large number of deGciencies, casting doubt on the plant's design and construc-

~~

tion processes. Additionally, if a quality assurance program identifies ex-traordinarily few deficiencies or if we were to find that substantial num-bers of deficiencies have been overlooked, that may raise questions about the adequacy of the quality assurance program. At this stage, we are not evaluating the overall eflicacy of the quality assurance program, but, rather, whether any of the alleged deficiencies are sufficiently seri-ous and uncorrectable that the plant, due to those deficiencies, cannot operate with the requisite degree of safety, in other words, we have considered each allegation independently, without regard to whether it may represent a pattern related to the ade-quacy of the quality assurance program. In addition, there are particular allegations which have been or will be the subject of hearings held after September 17,1983. These questions are not resolved by this decision.

A.

Rock Oterbreak One of the specific allegations encompassed within Contention 5 was that during construction blasting, rock which was supposed to remain intact was displaced and cracked. The foundation for Comanche Peak is set on a rock structure known as the Glen Rose limestone. This is a marine formation of the Cretaceous age.S The Glen Rose limestone is

" soft" or " weak" rock' and is not homogeneous.' Both of these factors make it difficult to predict and control the effects of blasting in this par-ticular rock.

The applicant's geotechnical consultants, Mason-Johnston and Associates, Inc., recommended that all safety-related structures be placed against intact rock.' It was planned that once the site had been leveled off at plant grade (l.c., the mountain top had been removed down to a specified level') excavation for the reactor buildings would assure that their bases would be forty feet below plant grade.'" Explosives 5 Tr. 801 6 Tr. 835. 946.

7 Tr. 957-58.1210.

sTr.809,

' Tr 806-07.

10Tr.808.

126

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I were used for the purpose of creating a crack in the rock around the perimeter of the hole for each containment building. Further blasting was contemplated to break up the rock within that perimeter crack."

Unexpectedly, the blasting to create the hole for the Unit I contain-ment caused approximately the top ten feet of the rock wall around the planned hole to be displaced and to suffer both horizcntal and vertical cracking.'2 Although changes were made to the blasting procedures when the hole for the Unit 2 containment was blasted, a similar over-break pattern emerged." Overbreak also occurred in excavating for other safety related buildings. Indeed, the overbreak was so extensive that there was no point in associating particular fractured rock with the excavation of a particular building." Applicant reported the oserbreak to the NRC pursuant to 10 C.F.R. ( 50.55(e).'*

The extent of the overbreak was determined by digging trenches at in-creasing distances from the excavation wall and examining them for cracks. When a trench was dug for which any cracks on the side closest to the excavation were found not to have been propagated to the far side of the trench, that was determined to be the edge of the overbreak."

Overbreak was detected up to approximately thirty feet from the excavation. While some overbreak is common during construction, the amount of overbreak at Comanche Peak was unexpectedly large."

To " repair" the overbreak, all rock within the area of the overbreak was remoud ut!!izing techniques which did not require blasting.'"Once this rock had been removed, some cracks were found in the newly creat-ed walls.2' These cracks did not appear to be associated with displaced rock and were grouted.22 The original shape of the excavation was re-stored by filling with concrete the area from which fractured rock had been removed.2)

This " dental" concrete was less strong than that used in constructing the reactor buildings; nevertheless, it was stronger than the fractured

" Tr. 80914.

12 Tr. 81516 O Tr.829.

14 Tr. 831.1208 09.1269 72 85 Tr.1270.

(

86 Tr 845 46.1270. section 55te) requires ihai senous breddowns be reported to the NRc DTr. 819 21.

38 Tr. 820.

a.

" T r. 835,1815.1209 12 2c r, sp7, g21-22 211r. I'73 24.

22 Tr. 332-33,1272.

23 Tr. 817.

127

rock had been.2* There was uncontroverted testimony from the appli-cant's panel that, once these repairs had been effected, the foundation was actually improved from what it would have been if the overbreak

+

had not occurred.25 The applicant's witnesses also testified, without contradiction, that the seismic capacity of the site was not impaired by the repair.26 The NRC cited the applicant for failing to have and to utilize quality control procedures for excavation for these safety-related structures.2' Applicant subsequently developed such procedures.2" It is coparent, l

however, that, even without quality assurance procedures for this excavation, the applicant detected and took action to remedy the overbreak. Moreover, the soundness of all areas excavated before the quality control procedures were instituted was verified by an engineering genlogist who was present during all phases of the excavation. The engi-neering geologist veri 0ed the soundness of all the materials on which concrete was to be placed. In making thisjudgment, he relied on profes-sional knowledge and confirming photographs? The repair work, in addition, was subject to quality assurance procedures.)

While it was a quality control deficiency to have done the excavation without quality control procedures, we find that this has not led to a last-ing deficiency. This potential problem has been negated by the detection and satisfactory repair of the excavation defects which should have been detected by the quality control program. The possible implications of management's failure to implement quality assurance procedures for the excavation activities is not being considered in this decision.

i i

B.

Cracks in Concrete Allegations were raised that cracks were present in the basemat for the containment. CASE presented no witnesses who addressed the allegations. liowever, CASE did introduce as exhibits a non-conformance report (NCR) and a revision to it which refer to cracks "on 812' Base Mat Containment #1.""

24 Tr. 827. 955-56 25Tr.835,838 26 Tr. 957-58 27Tr.1051.1273.1279. CAs0 Es.15.

2:Tr.1055.

29 Tr.1047-48 MTr.843.

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MCAsE Ess. 8 and 9 128

O Using the pour numbers given in that same NCR and revision,32 wit-nesses for the applicant and the stalidetermined that the cracks in ques-tion were not in the basemat" but were in the reactor shield wall. This is part of the internal concrete which is, in fact, separated from the twelve foot thick concrete basemat by a steel liner.34 The concrete pours in which the cracking occurred surround the reactor vessel.n The wall of which these pours are a part is steel reinforced.36 its main function is the provision of radiation shielding."

The witnesses uniformly concluded that these were shrinkage cracks, caused by the shrinkage of concrete as it cools.38 These are essentially hairline cracks into which something as small as a pencil lead would not fit." Cracks of this type are not unusual or troublesome when found.in large concrete pours.*a The staff witnesses believed that the cracks were about two inches deep. The applicant's witnesses believed that the cracks went through the entire depth of the pour.4r in determining the structural adequacy of the shield wall, the assumption was made that the cracks went entirely through the pour.di in addition, expert testimony was given by :he architect-engineering firm responsible for the design that a construction joint could have been piaced at approximately the location of the shrink-age crack, since the concrete pour was so large. The formation of the shrinkage crack is said to serve much the same purpose as a construction joint at this location might have served.**

Unrebutted testimony was presented that these cracks in the concrete did not impair the wall's capacity to perform its intended functions.*5 Ra-diation shielding would not be affected. Nor would the wall's ability to I

l l

32 Tr.1363

" Tr.1011 13.1363.

34Tr. 850-54, i181.

J' Tr 856. 859-66 App Eis 21 and 22.

36 Tr. 855.

" Tr 865.

38 Tr 867. 570-71,1384

" Tr. 867. I198 40 Tr 869.

E

'l Tr.1374 75.

42 Tr. 960.

43Tr 1398.

44 Tr 882 83 45 Tr. 885.1295.

• • Tr. 885 86.1301 129 l

l l

l

1 transfer vertical loads. The reinforcing steel (rebar) in the wall is relied on to take tension loads."

A potential problem that was examined is whether the crack would admit water that would rust the rebar. Ilowever, there is unlikely to be any problem with water reaching the reinforcing steel through the cracks, causing rust and weakening the steel's load bearing capacity."

After a short time, the exposed surfaces of the cracks were grouted to present a smooth face for painting."The grout excludes water.

These cracks were identified through the quality assurance system, which illustrates that, at least in this regard, the system was functioning at Comanche Peak. They have been analyzed and minor repairs made.

Based on the record before us, we conclude that the repair was adequate and there is no safety problem associated with the cracks.

C.

Other Specific Allegations Raised in the Context of Contention 5 CASE presented several witnesses who made allegations about con-struction deficiencies and deficiencies in the quality control system at Comanche Peak. Ilowever, CASE did not include these matters in its proposed findings even though the proposed findings were mandatory.

See Order (Proposed Findings of Fact; CASE Exhibits) at 3-4 (December 7,1982) (unpublished). Because th8 Board is consequently left to speculate about what CASE currently coatends about these issues, its failun to file proposed findings constitutes abandonment of this portion of its case. See Southern CaI(fornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717,17 NRC 346, 371-72 (1983); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709,17 NRC 17 (1983); 10 C.F.R. f 2.754(b).

t We therefore find that CASE has abandoned the allegations on which it has not filed findings. We have, however. considered whether these allegations raise such serious questions of public health and safety that we should raise them as sua sponte issues. We discuss briefly why, based on the record, we either have decided not to raise these matters sua 47Tr.869.1300.

88 Tr. 866. 385

" Tr. 897 98.1022,1028 2 Tr.1205,1313.

130

O sponte or have indicated that further information is required before we can reach that determination."

1.

Allegations by John Junior Gates CASE witness John Junior Gates was a carpenter who worked on the Comanche Peak site from November 1976 to h! arch 1979.52 Much of his concern related to the fact that work was done and, due to design changes, had to be ripped out and redonc, lie related this to increased cost and low worker morale. As Mr. Gates himself testified, rework and low worker morale do not alTect the quality of the plant if ultimately the work will only be approved when it is done correctly." Mr. Gates testi-fied that he did not know whether in the end the work was done correctly.5* The fact that rework was required, however, suggests that ap-proval was not forthcoming unless the work met the specifications. The Board finds that this allegation does not by itself raise a serious health or safety issue.

Mr. Gates also alleged that at one point work on the steel lin~

'.e Unit I containment was halted because the steel liner was fou. inches out of plumb.55 The applicant agreed that the liner had been out of alignment, but applicant's witnesses testified that this had been corrected to within specified tolerances.* Construction was stopped and stiffeners were added to the inside of the liner, bringing it back in line before con-tinuing construction." This matter does not raise an issue which the Board finds it should pursue sua sponte.

According to Mr. Gates certain water stops were improperly installed.58 He inentioned that nails were put in the water stops, tacking them to the forms. A water stop is a neoprene strip half of which is em-bedded in concrete on each side of a joint in a wall. Since the nails are located at a distance away from the actual joint, applicant assured the Board that there is no problem ofleakage from this normal procedure.5' H some or the allegations could relate to the question or the entent or management's commitmefil to quahty control That issue. orcourse me have srectricau> ieri open in this decision in add lion. matters which relate to allegations made by CASE witnesses Mark waish and Jack Do>le or to issues rmed b>

the staffs Construction Appraisal Team report also remain open.

52 Testimony orJohn Junior Gates. CAs0 E n. 651, at 5 HTr,2795,2820 21.

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54 Gates Testimony, CASE En. 651, at 21.

55 Gaies Testunony, CASE En. 651, at 37.

4Tr.2988,2992.

" Tr. 2992-93. 2995 3000.

5s Gates Testimony, CASE Ex. 658, at 37.

131

The forms are removed, together with the nails after the concrete is poured. The applicant also testified that, as of the time of the hearing, no water seepage was occurring through the outside walls of any safety-related building.*0 For these reasons, we see no need to pursue these questions further.

Mr. Gates also alleged that the concrete work at Comanche Peak was

" sloppy." He mentioned observing honeycombing, watery concrete, and materials left in the concrete.*' ilis knowledge, however, did not seem to extend to whether possible problems have been corrected.62 To illus-trate the problems with the concrete work, Mr. Gates pointed to a photo-graph of the containment buildings 68 lie stated, however, that the defects which he believed were shown by the photographs would not have any structural significance." This lack of structural significance was confirmed by Ralph McGrane, a professional engineer who appeared as a witness for the applicant.*' The Board finds that Mr. Gates' allegations about concrete work do not contain any specific information which causes the Board to be concerned with the structuralintegrity of safety-related concrete at Comanche Peak. llence, the Board will not raise this issue sua sponte.

2.

Allegations by Stanley G. Miles CASE witness Stanley G. Miles was employed at Comanche Peak from March 1977 to May 1982.** Like Mr. Gates, he was concerned about low worker morale.*' Low morale alone, assuming that it could be adequately defined and measured, does not raise health and safety concerns. Only if low morale causes defective work to be accepted as the final product would this cause us to question the safety of the plant. W.

have no reason to believe that defective work was accepted. If a specific mstance is brought to our attention, we can, of course, address that specific instance. As a general matter, however, we have no reason to raise a question about the possibility that low morale has, by itself, led to an unsafe plant.

5'Tr. 2989 90 60 Tr 2993.

63Gaies Testimony. CASE F s 651, si 24-26,36.

62Scr. c r. Tr. 2842. Gates Testimony. C AsE E s. 651, ai 26 63Gaics Testimony. CASE Es 651. at 24. Board En 4 64Tr.2883.

65Tr. 2990-92.

66 Testin.ony or stanley G. Miles. C ASE En 655. at i

~w 61 IJ at 49 132 l

{

l

O Mr. Miles also alleged that in one instance he was instructed to do work for which he had not been provided a blueprint.*' lie alleged that he had welded boom struts on rigs manufactured by Manitowoc, in viola-tion of the conditions of Manitowoc's warranty." lie alleged that a panel was made to appear to have been anchored with liitti bolts when it had not been.'"

None of these allegations would have safety significanca for the plant.

Neither Mr. Miles' work without a blueprint nor the false Ilitti bolts, ap-parently anchoring the panel, occurred in a safety-related area. The Manitowoc rigs apparently are no longer even used on the Comanche Peak site.'2 Mr. Miles also alleged that there were problems with the polar crane.

lie alleged that there were 3/8 inch gaps between each longitudinal sec-tion of the rails on which the polar crane ran. As the crane was operated, the rails could move, accumulating some of the gaps so that as much as five inches could be found in a single gap. When the polar crane wheel dropped into this gap, it would stop.7) llowever, Mr. Miles also testified that the problem had been corrected by the clips that he personally had installed. These clips were made of a weld-on piece, a bolt-on piece and the bolt itself.'* So there is no defect remaining that the Board might de-clare to be a sua sponte issue.

Also, in connection with the polar crane, Mr. Miles alleged that, con-trary to the design documents, " fingers" were cut off of several shims to make them fit in their designated places." It appears that this did occur.

Ilowever, the Board does not believe that it is a matter which the Board should pursue sua sponte because it appears that the staff and the appli-cant are addressing it. The staff issued a No' ice of Violation in connec-tion with the failure to inspect these shims.'6 The applicant has stated that all the shims in the polar crane girder support bracket assemblies will be removed and inspected. Shims which have clipped " lingers" will be evaluated by an engineer to determine whether they are acceptable."

6s Miles Testimony CASE Es 655. si 31 6' supplementary Testimony or stanl y G Miles. CASE Es. 657. ai 4

'" Wies Testimon). CASE En 655. at 26-27 73 /d at 31,27.

72 Miles supplementary Testimony, CASE Ea. 657. at 54 73Tr.2932.

74 Tr. 2978 79 M Miles Testimon). CASE Em 655. at 17.

'* staff Es.1483 77 Tesi::non) of John T. Merriti. Jr. Regarding Placement or shims m Polar Crane Glider support Bracket AssemMies. App En 127. ai 6 133

3.

Allegations by Cordella Marie Hamilton and Robert L Hamilton Mr. Robert L. and Mrs. Cordella Marie llamilton appeared as a panel; both raised concerns about the quality assurance program for protective coatings. Mrs. llamilton worked as a documentation clerk for the protec-tive coating quality assurance program.'8 Mr. Ilamilton was a quality assurance supervisor for the protective coatings.' Certain allegations in this area were made by Mr. Ilamilton, certain allegations were made by Mrs. llamilton, and certain allegations were made by both.

Mrs. Ilamilton alleged that there were denciencies in documentation for protective coating quality assurance. Specifically Mrs. flamilton al-leged that some paperwork required a large number of revisions or was never corrected and that approximately fifteen quality assurance inspec-tion reports were lost.88 Mrs. Ilamilton testified, however, that the prob-lems were identified through an audit and all necessary corrections were made. Reinspection was required because documentation was missing.

Although Mrs. llamilton did not believe the required reinspection took place, because the material was out in the field and had been cut up,82 she indicated that the lost documentation had not indicated any deficiencies.8) Therefore, it appears that the documentation problems identiSed by Mrs. Ilamilton either have been corrected or had no safety significance. In addition, it appears that the procedures governing paper-work for protective coating quality assurance were changed in July 1981.8* Thus it would seem that the source of the alleged problems also has been addressed. The Board finds nothing to raise as a sua sponte issue arising from this allegation.

Mrs, llamilton was also concerned about the specified method for determining " tack-free tirne" for paint, but she admitted that she did not know that the method being used was incorrect. 5 She further alleged that there were problems with the calibration of instruments used in paint inspections.8* These two allegations, made by a lay witness in very general terms, are insufficient to indicate a deficiency or to serve as a basis for a sua sponte question by the Board. They appear to be in the 78 Testimony orCordella Marie Hamdion. niiness ror CASE. CASE En. 652, at 12.

7' Testimony or Roberg L Hamilton. mitness ror CASE. CASE En. 653. at 1.

so C Hamilton Testimony. CASE En. 652. at 5,910 83 /d at 8. 9.14 11 is not clear from Mrs Hamilton's testimony whether there was an audit by the ap-plicant or an inspection by the NRC However. an NRC inyecison report did note dericiencies in the program in 1981..Scr App En 448 s2 C. Hamilion Testimony. CASE En 652. at 15.18 8' IJ at 18.

• • IJ at 13 85 // at 1819 86 od at 2122.

134

W nature of general questions rather than the identincation of specific prob-lems which might require a serious inquiry.

Mrs. Ilamilton alleged that for a year quality control inspectors were directed not to write NCRs on work done by the paint department." Mr.

llamilton testified that he was directed to stop writing if not any, at least so many, NCRs.8' Neither the staff nor the applicant addressed these allegations directly. These allegations are, however, closely related to the issue of management's commitment to the quality control program.

As such, they remain open.

In addition, Mr. llamilton's allegation that craft personnel harassed quality control inspectors" is related to management's attitude towards the quality assurance program. If management permitted or failed to dis-courage harassment ofinspectors, that would, of course, reflect adverse-ly on that attitude. The question of whether this has occurred remains open.

Mr. llamilton alleged that he and two other inspectors were fired for trying to do their inspection job." The given reason for his firing was that he refused to make an inspection under what he believed were unsafe working conditions. liowever, he alleged that other individuals who refused to make the same inspection under the same conditions were not fired. This allegation is relevant to the applicant's attitude to-wards the quality control program and will be dealt with in a subsequent decision.

Mr. llamilton also alleged that his quality assurance supervision was not qualified.'2 While this could also reflect on management's commit-ment to quality assurance, we note that Mr. flamilton's concerns in this regard apparently related to his opinion that he was more knowledgeable than his supervisors in the area of procedures for quality assurance in-spection of paint.') lie disagreed with changes in procedures and objected to supervisors overruling quality control inspectors on specific inspection findings." We do not believe that an employee's disagreement with a de-cision made by his supervisor raises suflicient questions about the super-visor's qualifications that the Board should raise supervisor qualifications as a sua sponte issue.110 wever, there appears to be a gap in the record because neither the applicant nor the staff has testified about whether s' fg 39 as R. Hamilton Testimony. CASE Ex. 653. at 22,43. 53-54 8' /d at 36 38.

• /d at 26.

l

% /d 92/4 at 14,16.

'3 /d at 16. 39,41

'd /d at 15.16.1819. 38.

135

i l

the procedures which Mr. llamilton criticized were, in fact, acceptable.

(Specifically Mr. llamilton has questioned the lack of standards for determining near white blast for surface preparation, the lack of a maxi-mum roughness for steel substrate surface, and procedural changes which allegedly reduced all painting inspection to adhesion testing.) If evidence introduced on this open item led us to conclude that there were significar.t faults in these inspection procedures, that could lead us to question the qualifications of the supervisors who approved them as well as the adequacy of the inspections rerformed following them. We note, however, that this does not indicate any present conclusion by the Board that problems exist in this regard.

It also appears that Mr. llamilton disagreed with dispositions of NCRs. He disagreed with the repair method for minor defects in painting." lie questioned the disposition of an NCR which addressed contamination of a painted surface which was force-cured using Kelly heaters which smoked.* Once again, these specific allegations were not addressed in the hearing by either the applicant or the staff. Since the implications of a failure to provide adequate disposition of NCRs could be serious, we consider this an open item. In particular, we need to be able to evaluate the disposition of the NCR related to smoking Kelly heaters and the procedures for repair of v.inor defects, as specified by Mr. llamilton.

There is one other allegation made by Mr. llamilton which the Board is currently unable to evaluate. Mr. llamilton alleged that a paint applied by Westinghouse and not tested by the applicant's quality control pro-gram could not pass an adhesion test." We need to determine whether this use of paint is safety-related and, if so, whether the paint will per-form satisfactorily.

Mr. flamilton alleged that an audit of Carboline, a paint vendor, was a

" white-wash."" This audit followed two audits which had found unsatis-factory conditions at the Carboline plant. Mr. llamilton was not present for the audit which he felt was a white-wash and based his charges on a

" gut feeling."" lie admitted that the sequence of events concerning Car-

" 14 at 15.

%/d at 2122. He also questioned the disposition or an NCR on which he had documented what he be-lieved was grease in pamt.14 at 21. However, it was shown. hat the pamt was ultimately returned to the vendor. Tr. 3502. App. En 139. while Mr. Hamilton believed some or the pamt had been uwd he had applied hold tags to the contame 5, the amount or paint missing was small (less than two contamers).

and some or the paint would have been used m an attempt to stram it and remose the roreign matter Tr. 3503-05.The Board is satisried that this NCR was property dispositioned and does not raise any ques-tion or the sare operation or the plant

" R. Hamilton Testimony. CASE Es 653, at 55.

• • 14 at 24-25.

" 14 at 47-48. Tr. 3522.

136

I boline would appear to illustrate the satisfactory performance of the qual-ity assurance program in resolving unsatisfactory conditions."" There is no evidence that the audits of Carboline demonstrate anything other than appropriate functioning of the quality control program. hir. Ilamil-ton's gut feeling is not sufficient to induce us to inquire further.

Another of hir. llamilton's allegations addressed undocumented removal of cable trays for which quality assurance documentation had been completed.H" Documentation problems have been noted by the NRC Construction Appraisal Team (CAT) and were addressed in a hear-ing subsequent to the parties' filing of proposed Gndings of fact. This allegation will be considered at the time the CAT findings are addressed.

Other allegations made by hir. flamilton do not require that the Board raise sua sponic issues because they have not been sufGciently related to denciencies in the quality assurance program; consequently, the Board does not believe that, if true, they would raise serious health or safety issues. These include allegations that the only quality control vault ceil-ing is not Greproof,'o2 that it takes some time to retrieve records from the quality assurance vault, that quality control inspectors did not ob-serve paint being applied to buildings outside the containment,'" and that he was never instructed to take greater care because the project was a nuclear plant.'05 4.

Allegations by Darlene K. Stiner and Henry A. Stiner Darlene K. Stiner and llenty A. Stiner appeared as a panel providing direct testimony for CASE. Afr. Stiner had worked at Comanche Peak as a welder from November 1979 to December 1980 and from June to July 1981.* hirs. Stiner began working at Comanche Peak in August 1977 and was employed there at the time she testified.W She had been em-ployed as a welder and was a quality assurance inspector at the time she testified.'"

in his direct testimony hfr. Stiner indicated that he had a criminal record.W The applicant's counsel brought out on cross-examination that he had multiple convictions and had not revealed all of them on his W R. llamilton Testimony. CASE Fa 653, at 54

'O' IJ at $$.

W IJ t03 Jg

~~ ~

WIJ at $9 IOS 14 at 65.

WCAsE Es. 6664.

• Testimony or Derlene K. simer, witness ror Intenenor CASE, CASE Ea 667. at 3 (Tr 4t271 W /J at J 5 iTr 4127. Al29L W Testimony el llenry A. simer, witness ror imenenot CASE. CASE E a 666. er 47-48 (Tr. 4249-50L 137 l

l l

second application for employment at Comanche Peak."* lle had not in-dicated any criminal record on his Grst application for employment."'

The Board has considered this information in determining the weight it gives hir. Stiner's testimony. The Board notes that, almost without exception, hir. Stiner's allegations are duplicated by other witnesses.

Also, the Board is not aware of any motive that hir. Stiner would have to make allegations in this proceeding which he did not believe were true. If anything, the fact that hir. Stiner's wife was employed at Comanche Peak at the time he testified would seem to provide him with a motive not to make allegations against the applicant.

The one allegation which was made by hir. Stiner and by no one else was that he was terminated because he showed a quality assurance inspector a gouge in a pipe."2 This allegation was not elaborated on to any signiGcant extent by any of the parties. Ilowever, it is related to the question of management's commitment to quality control and, as such, it will be considered in a later decision.

Another concern raised by hir. Stiner was that a hole was created in concrete in the Safeguards Building when he removed a partially installed liilti bolt."3 hirs. Stiner also observed the hole."4 hir. Stiner alleged that repair of the hole was not subject to proper quality assurance control.Hs The staff has investigated this allegation and reported its findings in in-vestigation Report 81 12."6 The investigation concluded that this allega-tion did not raise any safety questions."' Because we have no reason to doubt the stafTs evaluation of the signincance of a hole in the wall of the Safeguards Building, we will not declare this a sua spon/c issue."*

hir. Stiner also alleged that he was not told that greater care should be taken because the facility was a nuclear plant."'This allegation relates to the overall adequacy of the quality assurance program, but it is not by itself a cause for concern about the safety of the plant.

An allegation that was made by both hir. ard hits. Stiner was that pieces of scrap iron were added to hangers or supports in the Geld."8 At "0 Tr 4488-89. App Es 141 "ITr. 4484. App E s.145.

I12li simer Testimony. CASE I s 666. at 34. 40 (Tr. 4236. 4242).

"3/J at 25 (Tr 4227)

"4 D. soner Testimon). CASE I s. 667. at 40 4Tr 4161).

"511 stiner Testimony. CASE Es. 666. at 25 (Tr 4227).

"6 staliEs 178.

"7 /d at 9.

H8 % e are concerned that the stafr did noi provide a reasoned esplananon for its concluwon. t*ui me do not see any reason to inquire further about ttus particular defect.

"' H stiner Tesumony. CASE Es 666, as 32 (Tr si 4234).

120/J at 41-42 (Tr. 4242 43h D soner Tesumony. CASE Es. 667, at 47-41t (Tr 4171-72).

6 w

138

l t

least one of these allegations would appear to relate to Class 5 ("V")

hangers,'2' some of which may not be subject to the quality assurance system.'22 As to a Class 111 hanger mentioned by Mr. Stiner, he said that the heat number was added to a shim that had been made out of a scrap metal.'22 According to rebuttal testimony by the applicant, use of new material is not required and traceability through heat numbers is only re-quired for structural members used in component supports.'24 The shim is not a structural member, As far as Mrs. Stiner's allegation that she was directed to weld a piece of angle iron onto a small Class 111 support, she admitted that she does not know what happened to the support once it was taken from her. She did not know whether it was installed or scrapped.i25 None of these specific instances appears to be a problem. Therefore, the Board does not believe the Stiners' allegations in this regard raise serious health and safety questions about the plant which require the Board to raise this as a sua sponte issue.

The Stiners made numerous allegations about welding practices at Comanche Peak. They alleged that weave beading occurred although it was prohibited on site.'26 Weave beading involves welding using trans-verse oscillations of the electrode.'2' They further alleged that if weave beading welding violations occurred, the weld was improperly repaired.

Specifically, they alleged that repair of weave-beaded welds requires the grinding out and rewelding of the entire weld,'28 but that the practice of welders was to grind the surface of the weld which showed transverse os-cillations and make only a surface welding pass.'2' The applicant presented rebuttal testimony that established that only welding which involved significant transverse oscillation was prohibited as weave beading. Brown & Root, the firm performing construction at Comanche Peak, defines this to mean oscillations greater than four times the diameter of the weld rod used.'M Because some transverse os-cillation is permitted at Comanche Peak as beins acceptable under Sec-121 H simer Tesumony, CASE Ex. 666, at 42 (Tr 4244L 122Tr.4082,4565.

'22H. simer Tesumony. CASE En. 666, at 4142 (Tr. 4242-43L

'24 Apphcant cited AsME section lil or ANsl B 31 I as the apphcable code sections. Sec Tr 4628 29.

125 D. simer Testimony, CASE Es 667, at 47 48 (Tr. 4171-72).

'2614 at 23-24. 28 (Tr. 4147-48,4152L 127Tr.4086 12: D. stmer Tesumony, CASE Em 667, at 26 (Tr. 4150L 12' // at 25 (Tr 4149h it suner Testimony, CASE En 666, at 9-10 (Tr. 4213 12). Tr. 4357

'M Rebuttal Tesumony or C. Thomas Brandt, Ronald G. Tolson. Gordon R. Purdy, Raymond 3.

vurpillat and Randall D. smith Regarding Quahty Assurance /Quahty Control. App Es 141, at 30 (Tr.

4685), Tr. 4412,4420,4635-36.

139

O tion IX of the code of the American Society of Mechanical Engineers (ASME), some of the welds which concerned the Stiners may have been acceptable.

The NRC did an investigation of the allegations of weave beading. A visual inspection of an area in which this weave beading had allegedly oc-curred did not disclose weave welds."' llowever, it would not have done

' ^ '

so if the welds had been reworked as described by the Stiners."2 Conver-sations by the investigator with five welders revealed that three had seen weave welds but that those welds had been corrected."3 The applicant presented testimony that the repair method described by the Stiners did not violate any procedures."* The witness testified that by the time the weld has been ground down, it no longer exceeds the allowable diameter."5 llowever, we are unable to accept this explana.

tion because we fail to understand the engineering principles involved here. In particular, we do not understand the configuration of the joints in which weave beading occurred, where the grinding takes place or how the grinding cures the underlying weakness in the joint due to excess transverse oscillation during welding. IIence, we consider this to be an open item.

The Stiners alleged that " plug welds" were used to fill improperly placed bolt holes and that this was not a permissible procedure."' The applicant's witnesses testified that this procedure was permitted for fill-ing misdrilled holes at Comanche Peak and that this work requires a final visual inspection by quality assurance."' An NRC investigation of this allegation found that plug welding occurred and that quality control inspectors were aware that they were required to inspect it."' Mr. Stiner, however, specifically stated that these welds are being made without quality assurance inspecting them."' Neither the applicant nor the staff appears to have addressed the question of whether such welds are being made and not being inspected. Nor have we been able to find the ASME code provisions that may allow this practice. llence, the allegation is an open item.

"I stafr En.178 at $.

132 Tr. 4599.

133 stafr Es.178 at 5.

"4 Tr. 4650-51.

13S Id 13* D. Stiner Testimony. L AsE En. 667, si 30 (Tr. 4134h 11. simer Testimony. CASE Em 666, at 43-44 (Tr. 4219-20).

'" Apphcant's Rebuttal Pane! Testimony. App E=.141. at 36 (Tr. 4691).

13s stafr En 178 at 6.

33'11 stiner Testimony. CASE Ex. 666, at 19 (Tr. 4221).

140 1

O hir. Stiner alleged that downhill welding sometimes occurred, in viola-tion of site procedures.'" The applicant's rebuttal panel testined that al-though Browr. & Root procedures may have prohibited downhill welding at Comanche Peak, it is allowed by ASNIE Section 9 for root and cover pass and is allowed by the American Welding Society (AWS) to repair undercut. The record does not specify whether the Stiner allegations were limited to root and coser pass welds. Consequently, the record explanation of the allegation is incomplete and this is an open item.

Both of the Stiners alleged that there were problems with the control of we! ding rods. hirs. Stiner stated that, while these rods were suppos-edly controlled and accounted for through the use of stubs that assigned rods to a particular welder for a particular job, she had discovered rods which had been abandoned or thrown out without the control system having identified the problem.'*2 She also stated that there were in-stances when welders claimed to have used more welding rods than would be needed for a particular job.id) Thus, welders could have claimed to have used rods, kept them, and later used them on a weld for which they had not been issued and might be inappropriate. hir. Stiner testified that he had performed welding using rods which had been issued to other welders.'**

The applicant, in rebuttal to the Stiners' allegation, presented testimo-ny that weld rods were controlled to assure that safety-related weld rods of a proper type were used for a specific application.$ The panel stated that some NCRs had been written when these procedures were not followed."* (hlrs. Stiner herself identified one such NCR that she had written.)'

This testimony is not sufficient to resolve the issuc. The fact that NCRs have been written on uncontrol!cd weld rods does not refute a charge that the control system for these rods, while present, is less than perfect. Neither the staff nor the applicant has presented evidence that the system is so efTective that we may conclude that almost all (or all) of the breaches are corrected by the quality control system. This is an open item. There appears to be no way to clarify the scope of this problem l

without a field investigation.

l

'#/d. at 44-45 (Tr. 4246-47).

341Tr. 4601-02.

142 D. seiner Testimony. CASE En. 667, at 41 (Tr. 4165) l

'43IJ.

'" H. stiner Testimony CASE En 666 st 19 (Tr 4221).

'45 Appl > cant's Retwital Panel Testimony. App En.141. at 34 (Tr. 4689).

I l** 14. at 35 (Tr. 4690).

'47 CASE En. 667s.

I i

I41 f

it was also alleged that it was a common practice for welders to leave unplugged for prolonged periods the containers which were intended to keep weld rods heated."8 The purpose of keeping the rods heated is to 9

prevent the welding rods from absorbing moisture.'" If the rods do absorb moisture, the moisture will escape as steam during the welding.

This wi'.I cause surface porosity.'" (Porosity is holes or voids made in a weld by escaping steam.)i" Porosity is a visual inspection criterion for welds under the American Welding Society code.'52 If unheated rods cause welds with porosity, the weld must be inspected and repaired.'"

This will solve the problem caused by the unheated rod.Thus, this alle-gation involves construction practices rather than quality assurance and it involves practices which would not affect the safe operation of the facility.

The Board asked the applicant how welding in safety-related buildings would be veriGed prior to operation of the nuclear plant. In describing the welding verincation process, the applicant stated that all Class I,11, 111 and V supports in safety-related areas will be examined on a case-by-case basis prior to turnover to the operations groep."'The process in-cludes looking for evidence in the inspection record that there was a Anal visual inspection and other inspections that were required to be per-formed on all pipe and equipment supports.'" The Board concludes that this voluntary action of the applicant is important to assure the integrity of these supports.

The Stiners also alleged that adequate quality control was not main-tained over torquing of Ilitti bolts. The quality assurance inspector is supposed to observe the torquing of Ilitti bolts and to apply a material known as Torque Seal after the proper torquing has occurred.

(Inspection is not required for 100% of Ilitti bolt torquing, but that is the goal of the program.)

The Stiners alleged that quality control inspectors performing a llilti bolt inspection would not always stand where they could observe the 14:D. siiner Testimr ny. CASE En. 667. at 39 (Tr. 4163)

'" Tr.4597.

15 Tr.4302.4597.

858Tr.4631.

2

^

152 Tr. 4632. Porosity is not a criienon for inspections perrormed to the AsME code l.I IDApphcant's Rebuttal Panel Testimony. App En 141, ai 35 (Tr. 4690L Tr 4597.

154Tr. 4646 48.

1%14 142

• s

• /, TY N ?"

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actual torquing;"* that Torque Seal, whose handling was supposed to be controlled, was improperly in the hands of craft workers;'" and that Torque Seal had been found on liitti bolts that had not been properly torqued."8 The applicant's response in this area was that it was not necessary for the inspector to observe the actual torquing of a ililti bolt if the inspector checks the torque wrench for a proper setting, hears the click indicating that the bolt has been torqued, sees the craft person doing the torquing, and has no room to be in position to see the torquing indicator on the wrench."' The applicant's panel admitted that it was

)

likely that the possession of Torque Seal was not entirely limited to qual-ity assurance personnel, in spite of attempts to control it.'*" The applicant argued that this was not a cause for concern, however, because final verification of Ilitti bolt torquing is dependent on a review of quality assurance inspection records.l*'

The Board finds that there is no problem with the nature of the quality assurance inspections performed on Ililti bolts.'*2 The Board is concerned, however, that Mrs. Stiner understood her instructions to be that she should assume that all Torque Seal had been applied by quality assurance and that she should sign her inspections on that basis.'o if quality control inspectors signed inspections because they found liilti bolts covered with Torque Seal, the paper review of inspections would not reveal the fact that quality assurance had not actually checked wheth-er the liitti bolt had been torqued. Consequently, this is an open item.

There needs to be further evidence, based on field investigation, con-cerning whether quality control inspectors considered the presence of Torque Seal to be so definitive that they did not check quality assurance records further.

Mrs. Stiner alleged that an NCR which she had written on a burned bus box adjacent to the polar crane rail and resulting in gouges in the polar crane rail was unfairly voided.'6' The disposition of the NCR was that it was voided because its subject was not an item covered by the quality assurance program.365 There is no evidence that the bus bos in M6 D. simer Tesumony. CASE Es 667. at 34 (Tr 4158). H simer Tesnmon), c AsE E n 666. at 23 (Tr. 4225). T r. 4299-4300 3" D snner Tesumon). CASE Es 667. at 31 (Tr. 41551 na /d at 36 (Tr. 4160L CASE Fs 667R D' Apphcant's Rebuttal Panet Testimon). Apr Is 141. ai 32-33 (Tr 468188i. Tr 453'-34 7""

160Tr. 4534. 4536 tel Apphcant's Rebuual Panel Tesumon), App En 141. at 33 ITr. 4688i. Tr 45414;. 4544 162Src s/w stafT En 178 at 7-8 163Tr.4085.

16d D snner Tesumony. CASE En 667 ni 53 (Tr 4177L Tr 4073. 4102.

l*' /d ai 54 (T: 4178 L I 13

r question is safety-related, so there is no reason for us to declare a sua spon/e issue.

l Mrs. Stiner made several other allegations to which the staff and appli-l cant have not responded. Some of them are reasonably specific and are open questions. These include her allegations that lianger #SW-1 I

102106Y33K is in a safety-related area and is severely misinatched;'66 that a craft person was involved in performing quality assurance liquid penetrant inspections on the fuel pool liner;'6' and that ineffective action was taken when she identified numerous problems on a hanger previous-ly approved by quality assurance.i :

Two allegations made by Mrs. Stiner may simply be dismissed without further consideration. She alleged that there is no traceability.of mate-l l

tials until quality assurance becomes involved. Applicant argues that traceability is only required for the quality assurance program and that it l

j need not be applied to materials that are not covered by that program. In this posture, there is some ambiguity in the record, but we conclude that there is only one logical explanation for that ambiguity.

Theoretically, it is possible that items that had not previously been traced could be added to the quality assurance system, where they would then become traceable. Ilowever, we exclude this inference because tes-timony that items in the program are traceable means that : heir entire pedigree must be known. Those items could not previously have been l

untraceable. On this basis, we accept applicant's explanation."'

The second allegation is that material from a scrap bin could be uti-lized on the site and would lack traceability."' Since there is no allega-tion this has happened, it raises no issue about the cuality of actual con-struction at Comanche Peak.

Mrs. Stiner alleged that she was unqualiikd for a quality assurance po-l sition which she held."2 The CAT report discusses inspector qualification and this allegation will be considered in connection with our decision on matters in the CAT report.

Mrs. Stiner alleged that msnsgement st Comanche Peak had harassed her because she would he testifying for the intervenors in this proceeding."2 This is related to a matter considered in the CAT repor:

166 /4 at 45 (Tr. 4169).

167/d at 49 (Tr. 4173).

168IJ at 56 57 (Tr. 4180 8D.

16' /d at 46 (Tr. 4170).

WA party with inrormation that our resolution or this issue is ractually in error would have an obhga.

tion to correct the record even ir our rinding were ravorable to its interests.

"I /d at 57 (Tr. 41811.

U2 g sig(77,4:32).

f "2 /4. at 63-72 (Tr 4187 %).

144 l

l x.

~

~ ; "T**

m.

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and reflects on management's commitment to its quality assurance program. It will be evaluated in a subsequent decision.

S.

Allegations by Charles A. Atchison Charles A. Atchison was employed by Brown & Root to work on the Comanche Peak site from February 27, 1979 to April 12,1982."' He testified in these proceedings on behalf of CASE. Among his many allegations, Mr. Atchison claimed that he was improperly fired for per-forming inspections.ns This allegation has been covered by a previous Memorandum and Order of this Board."* That decision found that Mr.

Atchison was improperly fired.

The allegations not covered in either of our decisions include the following: (1) problems with welding on Chicago Bridge and Iron pipe whip restraints and moment restraints;"7 (2) problems with welding on NPSI pipe whip restraints;"8 (3) uncertified employees performed liquid penetrant testing;3" (4) unstated management direction to overlook problems;'88 (5) and pressure to approve an audit of Tennessee Wall, Tube and Metal. These appear to be open issues. Issue number 4 is the subject of two ongoing investigations, which may also cover num-ber5.

Other Atchison allegations are vague, unrelated to the quality assur-ance program, or are speculative. These allegations, which are not treat-ed in detail in this opinion, are that (1) the quality control vault may not be fireproof;i:2 (2) there is low morale among workers;'u (3) he was not instructed to use special care because he was working on a nuclear facility;'8' (4) Japanese steel was being used on site;'85 (5) pictures he had found in a desk on site showed a void at an unspecified location in l

D' Testimony orCharles A. Atchison, Witness ror iniervenor CASE, Case En. 650. at 5 7, ps 5,,,,y, f., $3 34.

I?6 L8P 83-34,18 NRC 36 (1983).

D7 Aichison Testimony, Case En. 650, at 23-24, 40 41, supplementary Testimony or Charles A.

l Atchison, Witness ror Intervenor CASE, CASE En. 656, at 2 3,5-6.

08Aichison Testimony. CASE Ex. 650, at 33

'M/d at 51.

580/d at 58 ist Atchison supp. Testimony, CASE Ex. 656, at 2.

182 Atchison Temmony, CASE Em 650, at 34.

383/d at 49,54 184/d at 67.

183 Atchison supp. Testimony, CASE En. 656, at 12.

145 1

i

Reactor Building I;"* (6) an individual, employed as a contractor's qual.

ity assurar:ce manager, ordered for Brown & Root;'"and (7) engineering permitted a type of welding by NPSI not authorized by procedures."'

Among Af r. Atchison's more substantial concerns is the allegation that there were problems with getting component modification cards to the document control center and incorporating them into appropriate document revisions.'" This allegation is related to matters discussed in the CAT report and will be discussed later in that context.

r Afr. Atchison alleged that A490 bolts were being broken and that after tests were run to establish torque values for the bolts, the new torque values were not incorporated into site procedures.'" Neither the appli-cant nor the stalT has responded to the allegation. It is an open item.

Another allegation made by hir. Atchison was that he had observed a welder " quenching" a weld directly, in violation of site procedures."' It appears from hir. Atchison's testimony that he wrote an NCR on this matter and that the project engineer determined that, while the quench-ing violated site procedures, it did not affect the quality of the weld."2 Ilowever, we have no understanding of the reason for prohibiting the quenching of welds or why this particular weld was found to be acceptable.

hir. Atchison alleged that a flammable lubricant was used to assist in pulling cable through electrical conduit.") The lubricant was tested in a laboratory and found to be satisfactory. Without hasing been present for the laboratory test, hir. Atchison questioned whether it reasonably ap-proximated conditions in the field."* In essence, hir. Atchison gave no reason for questioning the accuracy of the results of the laboratory tests.

We find nothing in this allegation which we should pursue sua sponte, hir. Atchison also alleged that there were too few quality control inspectors to perform the quality assurance work at Comanche Peak."'

Applicant provided rebuttal testimony indicating that during the time hir. Atchison was employed at Comanche Peak, the ratio of' quality con-trol inspectors to craft personnel was within the average for Ilic M614 at 7.

187IJ at 9.

til14 at 8 I" Akhiwn Tesumony. CASE Em 650. si 35-36 l# IJ at 29-31.

M' IJ at 50-51.

p2 IJ at 50 H314 at 55.

IS4 JJ at 55 56.

l'SIJ at $7.

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O industry.+ In addition, the applicant's witnesses testiGed that if the ratio had been less favorable it could have inDuenced how rapidly re-quired inspections were performed, but would not have affected whether they were performed.'" Accepting the applicant's testimony that the in-l spections will be perform:d regardless of the number ofinspectors, hfr.

Atchison's allegation does not by itself raise an important issue about the number of inspectors. We do not decide whether the parallel issue raised by the CAT inspectors is meritorious.

Mr. Atchison alleged that hu'id:cds of Dange bolt-up joints had not been submitted to quality assurar.ce for Gnalinspection. Thus, he alleged the start-up group would repeatedly disassemble and reassemble the joints.'" Certainly, if the units are to be disassembled, this should be done before the Gnal quality assurance approval. It does not appear that Mr. Atchison is alleging that these joints will never be submitted for final quality assurance approval. They appear to be just one additional item Icft for inspection during the Gnal walk-down at the end of the project.

Mr. Atchison alleged that,he had observed the " cold springing" of two lines from reactor coolant pump compartment number three.'" In rebuttal, the applicant indicated that the cold sprung pipe was part of the component cooling water system, that an NCR hri been written on it, and that repair work had been required.25 Mr. Atchison was reasonably speciGc about the lines he alleged had been cold sprung. The applicant did not indicate how they determined that the lines to which he referred were not part of the reactor cooling system. They may well be correct in their conclusion; however, there is an important gap in our record that needs to be filled.

Mr. Atchison's final allegation was that minimum wall thickness viola-l tions had occurred in piping."' He testiGed that an NCR had been writ-ten on this matter and had led to two back0t programs.202 As far as he j

knew the NCR had not been closed.263 Since an NCR had been written on the problem and there are controls requiring that there be an ap-propriate disposition, we Gnd that this s!!egation demonstrates the cor-196 Applicant's hebuttal Panet Testimony, App. En 141, at 38-39 tTr. 4693-941 i

'" IJ l9s Atchison Testimony, CASE E s. 650. si 62.

'" /d at 63.

I 2" Apphcant's Rebuttal Panel Testimony at 36-37 (Tr. 469192).

20t Atchison Testimony. CASE En 650. at 63.

202/J at 63-64 203Id at 64.

147

9 mumm-f rect working of the quality assurance program and does not present an 1

allegation that we should pursue sua sponte.

6.

Miscellaneous Allegations a) Lobbin Report hf r. B.R. Clements, Vice President, Nuclear of TUGCO commissioned a management study by hlr. Frederick B. Lobbin, to review the effective-l ness of management controls within the quality assurance organization.M This review was entirely voluntary on TUGCO's part.2"'

It was a quick and-dirty efTort to identify problems that his. Clements might follow up if he thought additional effort was warranted. Clements at 3-5.

hir. Lobbin testified that he sometimes overstated his conclusions in order to assure that they would be attended to.2'* Despite this method of exaggeration, each of his findings was evaluated by applicant in a re-sponse document.2

We conclude that as a result of the nature of hir. Lobbin's study, his individual findings are entitled to little weight in this proceeding. This conclusion does not prejudice the right of a party to use his findings as cumulative evidence, together with other direct evidence, of positive or negative findings concerning the quality assurance program.

b) The Number ofNCRs CASE introduced a large number of documents that demonstrated the existence of construction deficiencies at Comanche Peak.2"" llowever, there were no witnesses that testified that the number of deficiencies was abnormal. Indeed, the stafTs resident inspector, hir. Taylor, testified without contradiction that the number of NCRs indicates only that the qua:ity assurance program is working.2"' In addition, the staff examined a sample of NCRs to detect trends indicative of problems, and they base MSw App i s. 42. Testimony or B R Clements Regardmg Reuens or Management Comrel Program and Actmtses or Tetas Utahties Company Quahiy Anuranse orgamission. Apr l s IIR. ai 2-3. Tes-timom or f rederith B Lobbm Regardmg Reuem or Managemetil Control Pregrant arid Artisitees or Teias Utihues Generatmg Company Q4 orgamntion. App I a 119. at 2. Clemenis. Tr 2146.1obNn Tr. 2163 64 WB R Clements Testimony. App l's its. at 3. F Lobbin Testimony App 1i 119. at 2 Lv aho 10 C F R. Part $0. Appenda B m hish does not require any such managemem study 2im Lobben. Tr. 2170 M7 App 0 49 i

20s Sa. c r. Cast 1:a 300570 M Taylor. Tr. 1712. 1730 31 148 l

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concluded that there are no serious problems revealed by the logs of NCRs.28' Staff examination of corrective actions taken pursuant to NCRs also resulted in a positive evaluation.2" We And no evidence that the number of NCRs and of other deficiency reports was in any way excessive for a project of this size. To the contrary, the existence of these reports is consistent with the Commis-sion's quality assurance requirements.

II. CONTENTION 22 Contention 22 states:

Applicants have failed to comply with 10 C.F.R. Part 50, Appendia E, regarding emergency planning for the following reasons:

(a) The FSAR does not identify state or regional authorities responsible for emergency planning or who have special qualifications for dcaling with emergencies.

(b) No agreements have been reached with local and state olTicials and agencies for the early warning and evacuation of the public, including the identification of the principal officials by titles and agencies.

(c) There is no description of the arrangements for services of physicians and other medical personnel quahfied to handle radiation emergencies and arrange-ments for the transportation ofirhured or contaminated individuals beyond the site boundary.

l (d) There are no adequate plans for testing by periodic drills of emergency plans and provisions for participation in the drills by persons whose assistance may be needed, other than employees of the Applicant.

(c) There is no provision for medical facilities in the immediate vicinity of the site, which includes Glen Rose.

(O There is no provision for emergency planning for Glen Rose or the Dallts/ Fort Worth metroplex.212 CASE did not address this contention at allin its proposed findings of fact. In recent hearings CASE has had very few questions for witnesses on emergency planning 283 CASE's failure to file proposed findings on l

the emergency planning contention when directed to do so constitutes abandonment of the contention.2'* CASE subsequently has failed to pursue the contention vigorously, confirming the wisdom of declaring this to be an abandonment.

210 stewart, Tr. 1282,1285, crossman, Tr. 302I.

2HCrossman, Tr. 3022.

212 Order subsequent to i+w Prehearing Conference or Apn! 30, 1980, slip op at II Uune to,1980)

(unpubhshed>.

213 Tr 7286,7480-81.

214 10 C F R. 4 2.754tb).

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The development of emergency plans is an evolutionary process. In May 1983, the staffintroduced into the record an interim finding by the Federal Emergency Management Agency (FEMA) that there is reasona-ble assurance that the ofTsite protection of public heal h and safety is t

adequate.2'$ The documentation attached to this interim Gnding makes it apparent, however, that the state and county emergency plans do have deSciencies.

The interim Gnding is based upon a review of the paper plans.2'* The Onding is in the nature of a progress report.2It indicates that if all the commitments made in the emergency plans are carried out, there is rea-sonable assurance that the plans will pwvide adequate protection for the public.2'8 At this stage, it is too early to determine whether all those commit-ments will be fulGiled. The Board is not satisGed that the plans as pre-sently constituted are adequate. It remains concerned about these promises. Since the evolutionary process is not yet complete (there must, for example, be a drill or exercise),2 the Board does not believe it should raise any issues sua sponte at this time. ilowever, the Board-will continue to observe the development of the emergency plans and may raise issues sua sponte later if the commitments are not met or the denciencies are not rectined. Our Order of June 27,1983 (LBP 83 32, 17 NRC 1164), elaborates further about the extent of our concern about this issue.

III. BOARD QUESTIONS In addition to the contentions, the Board had posed fuct questions.

These questions were posed for the purpose of obtainir:g information so that the Board could determine wiiether a serious health or safety issue existed which the Board should raise sua spanic. This decision resolves those aspects of these Board questions that were raised during hearings occurring prior to March 1983.

A.

Board Question I in Board Question I the applicant and staff were asked to "ldlescribe in detail the planned riethod for handling any hydrogen gas in the 285 Memorandum rrom Lee M. Thomas to wdisam Dircks (september 29.19821. IT Tr. 7414 216y,,7417 33.

2i?Tr.7456 218 Tr. 7452 54 21' Tr. 7416-17. 74414). 7481.

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CPSES containment structure."22o The potential source of hydrogen gas in the containment structure would be a Loss-of-Coolant Accident (LOCA), Combustible gases, principally hydrogen, would be generated inside the containment during a LOCA by: a zirconium water reaction, release of free hydrogen from the primary coolant system, radiolysis of water, or corrosion of susceptible constructioa materials in containment.22' As it has previously indicated on the record,222 the Board is satisfied that any hydrogen generated within the containsvent structure can be satisfactorily handled. The Board relies on the large con-tainmen.t structure at Comanche Peak, the redundancy of electrical recombiners provided, and the requirement by the staff that the recom-mendations for operator training found in the TMI-2 Short Term Lessons Learned report will be implemented prior to issuance of the operating licenses.222 c

B.

Board Question 2 Board Question 2 states:

Appheant and stalishould describe in detail the operating quality assurance program for CPSES. A description of the provisions for conduct of quality control audits should be prosided, including a description of how reactor operations and reactor operator training will be audited.224 The applicant and the staff provided the Board with extensive informa-tion on the structure and purpose of the quality assurance program for operations at Comanche Peak.225 The Board is convinced that if the operational quality control program is instituted as described, it will func-tion adequately. The Board notes that while specific implementing proce-dures were not provided to the Board, the staff will review them before it will issue the licenses 22* The staff will also audit implementation o'f 220 order subsequent to the Preheanns Conference of Apnl 30, 1930, shp op at 4 (June 16,1930)

(unpubhshed).

221Fmal safety Analysis Report (FsAR) 44 6 2 5 and 6 2.5 A 222Tr. 693, 731.

223S,e Roard En.1;Tr. 730 31.

224 Order subsequent.o the Prehearms Conference of Apnl 30,1930, shp op. at 5 tunpubhshed).

225 Testimony of B R. Clements Regardmg Management Commitment to Quahty Assurance. App En 8; Tesumony of David N. Chapman Regardmg the Operstmg Quahty Assurance Program for Comanche Peak, App. En. 9. Testimony of R.A. Jones Regardmg Commitment of on-site Management to Quahty Assurance, App En.10; Testimony of Antonio vega Regardmg Provmons nor Conduct of QA Audits and Reactori)perator Trammg, App. Ea.12; stafr Tesumony of John G. spraul Regardmg Opernims Qualwy Assurance LBoard Question No. 2), staff En. 5. App. Ea. II,Tr.506-662 22' Tr. 657-58, 662.

151

the operational quality assurance program.22' In light of the commit-ments made by the applicant and the staff, the Board is satis 0ed at this N

time that the Board need not pursue this matter further by raising it as a separate, sua sponte issue.22' C.

Board Question 3 Board Question 3 asked the applicant and the staff to describe the status of the resolution of Safety issue TAP-9 (Anticipated Transient Without Scram or ATWS) as it relates to Comanche Peak. The staff an-swered the Board question with three affidavits.22' The staff noted that the Commission has issued a notice of rulemaling on ATWS 238 Prior to operation of Comanche Peak, the applicant will be required to develop emergency procedures and to train its operators to recognize and cope with an ATWS event. The staff indicated that the scram systems were redundant and highly reliable and that in view of favorable operating experience, Comanche Peak could be operated without undue risk during the period pending the final ATWS rule.

With respect to the fs arable experience, Mr. Pyatt stated that, "There have been rousn'" onc thousand reactor years of experience ac-cumuleted in foreign and domem: commercial light-water-cooled reac-tors without an ATWS ccident. He chose his words carefully to avoid having to mention ti.at there had been at least one ATWS event.

Although the Board had considered the stalTs response on ATWS to be satisfactory,238 v.c note that on February 25, 1983, a potentially seri-ous ATWS event occurred at Salem Unit I as a result of a failure of redundant reactor trip breakers.232 After that event, we asked whether the reactor trip breakers at Comanche Peak were similar to the Salem breakers and whether there would be any new requirements prior to operation. The staff has informed us that a task force has been formed to look into the generic implications of the Salem event and that final ac-tions in response to the event are still under consideration.

227Tr.656.

22:This cor.chjeon woisid not prevent us rrom renewins our concern about operations quahiy assurance sho Jd we gets ri thas anert hase been substantial dericiencies an aspects or the constructen quahty anrui met program that also ans present d.aring operations.

2NAr.idavi:s b. David W. Pyate James W. Llifrord and Marvin W. Hodges. dated May 5.1982 (Bd.

Es. 3).

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23046 Fed. Res. 57.521 (1981),

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232M2rnorandum rrom Darrett G. Eisenhus to Chairman Pa lladino. cr et. (March 3,1983) (Board Notikson 83 Fadure or Reac.or 1 rip Breakers tc open in Trip signal).

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D.

Boron Injection Tank

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When the Emergency Core Cooling System at Comanche Peak is activated, high-head pumps 2" take borated water from the refueling water storage tank and inject that water into the reactor cooling system.

The original design called for the insertion of a Boron injection Tank (BIT) between the high-head pumps and the reactor cooling system.

The applicant proposes to omit the BIT.234 The Board inquired into the appropriateness of the deletion.2" The concentration of boron in the refueling water storage tank is 0.2%; the concentration of boron in the BIT would have been 12%. Such a high concentration of boron would require that the tank and all lines and valves of the BIT be kept at high temperature to prevent the precipi-tation of boron crystals in the BIT and the consequent plugging of valves and lines which connect the high pressure injection system OIPIS) to the primary coolant system, a potential hazard to the operation of the ECCS system during a transient.

Representatives from Westinghouse have informed the staff that the BIT was included in the original design for the sole purpose of mitigating the consequences of a steam-line break accident. They have made an analysis of a worst case scenario, a large steam-1ine break when the reac-tor is just critical, at zero power and at operating temperature. In this scenario, the secondary system would rapidly dapressurize causing rapid cooling of the primary system, an increase in reactivity above critical (due to more optimal moderation at the reduced temperature) and a return to power production in the core. The reduction in primary coolant temperature and pressure would trip the safety injection signal and initi-ate the pumping of borated water into the core. If there is a BIT, the power would peak 236 at about 15% of full power and then gradually de-crease as the boron reduces the reactivity. Without the BIT the power would peak at about 20% of full power and persist somewhat longer.2" 2H Pumps designed to injecq mio the primary coohng system when it is fully pressurized D4 The descnonon of the BIT system and its effccineness m reducm3 the transient follommg a steam-hne break is taken chiefly from the afridavit of stafr meiness sammy Diab (followmg Tr. 781) and the at-nached" summary of Meetmg on Cemanche Peak Design Change and Responses to RsB Quesnons ~

2" order of Ap612. '982 at 2 3.

23e The main steam.hne break incideni is anal >ied usms a consersaine assumption that the control rods for the most reactne section of the core do not msert. Most of the power that is generated comes from thes one section.

2n Figures 3-4 and 3-s m Attachment I to the Testimony of s. Diab follamms Tr 781.

153 f

Applicant, with support icom the stalT, has argued that this increase in power without the BIT is not significant. It relies on Westinghouse calcu-lations that show that the DNBR (departure from nucleate boiling ratio) would remain above 2.5, indicating a wide margin of safety before the coolant would reach a " film" condition which would interfere with the safe removal of heat from the core.

Although applicant and stalT support deletion of the BIT in order to

=

reduce the risk that boron crystals might interfere with ECCS operation, neither identified an instance where the ECCS had been compromised due to precipitation of boron.228 The witnesses stated, generally, that there have been operational problems with the BIT.23' However, the Board is independently aware that there have been boron-crystallization events of sufficient seriousness to be called precursors to potentially severe core damage accidents.2*

We agree with applicant and staff that on balance the Comanche Peak Station apparently would be safe without the BIT. However, we are con-cerned that the NRC staff has relied entirely on the Westinghouse analyses.24' We recognize that the matter also has been brought to the at-tention of the Advisory Committee on Reactor Safeguards (ACRS);

however, the staff's reliance on the Westinghouse analyses was not brought out282 and is a matter of concern to us. We request the staff to bring this matter to the attention of the ACRS once again, clearly in-dicating inat the stafT relies entirely on Westinghouse analyses of DNBR.

ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 29th day of July 1983, ORDERED

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1. This is a proposed decision.

2. Pursuant to the Board's authority to require the filing of Findings of Fact, objections to this decision are waived unless they are filed in 238Tr. 746. Tr. 783.

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239 Tr. 778 and 782, stafr. Tr. 746, appheant.

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• f science Apphcations incorporated and oak Ridge National Laboratory. NUREG CR 2497 Precursors n

to Poserrom/ Sewer Core lkumane Amferrrs 1969-1979 (A Status Reteort) Uune l982) at Appenda C. pp.

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t 241 Tr. 782.

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242 Advisory Committee on Reactor safeguards. 259th Annual Meetmg (Nosember 13.1981L Tr.

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compliance with the format requirements prescribed near the beginning of the Proposed initial Decision.

3. Objections to this decision must be received within 22 days of is-suance of this Order.

4. Replies to objections must meet the same specificity requirements applicable to the objections themselves. In particular, they must clearly state what they are replying to and provide a reasoned, documented dis-cussion that responds directly.

5. Replies must be filed within ten days of receipt of the objection being replied to.

FOR Tile ATOMIC SAFETY AND LICENSING BOAP.D Peter B. Bloch, Chairman ADMINISTR ATIVE JUDGE Walter H. Jordan ADMINISTR ATIVE JUDGE Kenneth A. McCollom ADMINISTR ATIVE JUDGE Bethesda, Maryland l

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