ML20083G037
| ML20083G037 | |
| Person / Time | |
|---|---|
| Issue date: | 08/31/1983 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V18-N02, NUREG-750, NUREG-750-V18-N2, NUDOCS 8401040089 | |
| Download: ML20083G037 (145) | |
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NUREG-0750 Vol.18, No. 2 Pages 157-296
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NUCLEAR REGULATORY COMMISSION ISSUANCES August 1983 l
l This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for flulemaking (DPRM).
The summaries and headnotes preceding the opinions reported herein i
are not to be deemed a part of those opinions or to have any indepen-dont legal significance.
1 U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Technical Information an) Dv-" ment Control, Office of Administraten, U.S. Nuclear Regulatory Commission, Washington, D.C. 20666 (301/492-81125) l l
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O COMMISSIONERS Nunzio J. Palladino, Chairman Victor Gilinsky Thomas M. Roberts James K. Asselstine Frederick M. Bernthal I
Alan S. Rosenthal, Chairman, Atomic Safety and Ucensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety and Licensing Board Panel l
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O CONTENTS Issuances of the Nuclear Regulatory Commission MAINE YANKEE ATOMIC POWER COMPANY
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(Maine Yankee Atomic Power Station)
Docket No. 50-309 (10 C.F.R. > 2.206)
MEMORANDUM AND ORDEi CLI-83-21 August 2,1983 157 Issuances of the Atomic Safety and L? censing Appeal Boards CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.
(Perry Nuclear Power Plant, Units I and 2) i Dockets 50-440-OL, 50-441-OL MEMORANDUM AND ORDER, ALAB-736, August 24, 1983.
165 METROPOLITAN EDISON COMPANY, et al.
(Three Mile Island Nuclear Station, Unit No.1)
Docket 50-289-SP (Management Phase)
MEMORANDUM AND ORDER, ALAB-738, August 31, 1983.
177 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
l (Seabrook Station, Units I and 2)
Dockets 50-443-OL, 50-444-OL MEMORANDUM AND ORDER, ALAB 737, August 26,1983.
168 Issuances of the Atomic Safety and Licensing Boards l
CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.
(Perry Nuclear Power Plant, Units I and 2) i Dockets 50-440-OL, 50-441-OL MEMORANDUM AND ORDER, LBP-83-46, August 9,1983.
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l CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.
(Perry Nuclear Power Plant, Units I and 2)
Dockets 50-440-OL,50-441-OL MEMORANDUM AND ORDER, LDP-83-52, August 18, 1983...............
256 COMMONWEALTH EDISON COMPANY (Byron 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, LBP-83-51, August 17, 198 3...........
253 CONSUMERS POWER COMPANY (Big Rock Point Plant)
Docket 50-155 (Spent Fuel Pool Amendment)
SUPPLEMENTARY INITIAL DECISION, LBP-83-44, August 1,1983............
201 CONSUMERS POWER COMPANY (Big Rock Point Plant)
Docket 50155 (Spent Fuel Pool Amendment)
MEMORANDUM, LBP-83-44A, August 15, 1983...
211 CONSUMERS POWER COMPANY (Midland Plant, Units I and 2)
Dockets 50-329-OM&OL,50-330-OM&OL)
(ASLBP Nos. 78-389-03-OL, 80-429-02-SP)
MEMORANDUM AND ORDER, LBP-83-50, August 17,1983.
242 CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2)
Dockets 50-329-OM&OL, 50-330-OM&OL)
(ASLBP Nos. 78 389-03-OL, 80-429-02-SP)
MEMORANDUM AND ORDER, LBP-83 53, August 31, 1983...
282 Iv
O GULF STATES UTILITIES COMPANY, et al.
(River Bend Station, Units I and 2)
Dockets 50-458-OL,50-459-OL (ASLBP No. 82-468-01-OL)
MEMORANDUM, LBP-83-52A, August 26,1983.
265 HOUSTON LIGHTING AND POWER COMPANY, et al.
(South Texas Project, Units 1 and 2)
Dockets STN 50-498-OL, STN 50-499-OL (ASLBP No. 79-421-07-OL)
MEMORANDUM AND ORDER, LBP-83-49, August 16, 1983.
. 239 NIAGARA MOHAWK POWER CORPORATION, et al.
(Nine Mile Point Nuclear Station, Unit 2)
Docket 50-410-OL (ASLBP No. 83-484-03-OL)
MEMORANDUM AND ORDER, LBP-83-45, August 4,1983.
213 SOUTHERN CALIFORNIA EDISON COMPANY, et al.
(San Onofre Nuclear Generating Station, Units 2 and 3)
Dockets 50-361-OL, 50-362-OL (ASLBP No. 78-365-01-OL)
MEMORANDUM AND ORDER, LBP-83-47, August 12,1983.
228 l
TEXAS UTILITIES GENERATING COMPANY, et al.
(Comanche Peak Steam E'.:ctric Station, Units 1 and 2)
Dockets 50-445, 50-446 (Application for Operating License)
MEMORANDUM AND ORDER, l
LBP-83-48, August 15, 1983.
236 l
Issuances of Directors' Decisions TEXAS UTILITIES GENERATING COMPANY, et al.
(Comanche Peak Steam Electric Station, Units 1 and 2)
Dockets 50-445, 50-446 (10 C.F.R. f 2.206)
DIRECTOR'S DECISION UNDER 10 C.F.R. s 2.206, DD-83-ll, August 19,1983.
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COMMISSION lSSuanCOS s
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Cite as 18 NRC 157 (1983)
CLI-83-21 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 No. 50-309 (10 C.F.R. I 2.206)
MAINE YANKEE ATOMIC POWER COMPANY (Maine Yankee Atomic Power Station)
August 2,1983 The Commission affirms the Director's denial of a petition seeking an order to show cause why the licensee should not be ordered to discon-tinue operation of the Maine Yankee facility for alleged financial incapa-bility to operate the plant safely and dispose of spent fuel stored and to be generated there. The Commission also decides as a matter of discre-tion to direct the staff to review whether there are any safety problems at the plant which might stem from financial dilliculties.
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i FINANCI AL QUALIFICATIONS: PUBLIC IIEALTil AND SAFETY CONCERNS The Commission's concern with financial problems of a licensee is limited to the relation which these problems may have to the protection of public health and safety. See Pacific Gas & Electric Co. v. State Energe l
Resmarces Conservation and Development Cmnnussion. 000 U.S. 000. 75 L. Ed. 2d 752,767 (1983).
157
FINANCIAL QUALIFICATIONS: PUBLIC HEALT81 AND SAFETY CONCERNS A showing that a licensee is undergoing financial dilTiculties does not
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by itself require that the Commission halt operations of the licensee's plant. Allegations, however, that defects in safety practices have in fact occurred or are imminent would form a basis for enforcement action, whether or not the root cause of the fault was financial.
RULES OF PRACTICE: GENERIC RULEMAKING (EFFECT ON INDIVIDUAL PROCEEDING) l Proceedings will not generally be instituted in response to a 10 C.F.R.
f 2.206 petition to consider an issue the Commission is treating generi-cally through rulemaking.
ATOMIC ENERGY ACT: WASTE DISPOSAL There is reasonable assurance that, until the availability of geologic repositories for safe, permanent disposal, spent fuel can be stored safely in storage basins at reactor sites for up to thirty years beyond the expira-tion date of operating licenses. See 48 Fed. Reg. 22,730 (1983).
NUCLEAR WASTE POLICY ACT: WASTE DISPOSAL (CONTRACTS FOR SERVICES WITil DOE)
Under the Nuclear Waste Policy Act, utilities are required to contract with the Department of Energy (DOE) and provide prepayment for waste disposal services they will ultimately require. Id.
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l MEMORANDUM AND ORDER The Commission has considered and affirms the Director's Decision, DD-83 3,17 NRC 327, issued February 14,1983 under 10 C.F.R.
I s 2.206.' The Decision denied the October 20, 1982 petition of Safe
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Power for Maine, Emil G. Garrett, John B. Green and John Jerabek (collectively " Safe Power") for action pursuant to 10 C.F.R. s 2.206.
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Safe Power sought an order to show cause why Maine Yankee Atomic l
3 By successive orders of the secretary pursuant to 10 C F R ( 2.772, the time in which the Commission may take review of the Director's Decmon was entended to July 29.1983 158 i
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O Power Company (" Maine Yankee" or " licensee") should not be ordered to discontinue operation ofits nuclear power plant at Wiscasset, Maine,
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.(s in light of Safe Power's allegations of Maine Yankee's financial incapabil-ity to operate the Wiscasset facility safely and dispose of spent fuel now stored there and to be generated during the remainder of the licensing period. The Commission has concluded that denial of this petition lay within the Director's discretion but notes that subsequent developments provide additionaljustification for the Director's Decision. Accordingly, rather than simply declining to review the Director's Decision the Com-mission is issuing this memorandum and order to enlarge the discussion of the issues raised by the petition.
In its petition for a show cause order Safe Power alleged a number of circumstances indicating " poor financial condition of Maine Yankee."2 Safe Power requested that the Commission halt operation of Maine Yankee until the licensee "has demonstrated that it has adequate finan-cial backing and adequate financial support... to raise capital require-ment to continue operation, to make any changes or capital investments required by the NRC, and to provide for the funding of its shutdown and disposal of spent fuel at the end of its licensed term." Safe Power also asked that the Commission determine what amounts Maine Yankee should collect to provide for decommissioning and disposal of spent fuel and order the creation of a trust fund in which these monies would accu-mulate until needed.
In denying Safe Power's petition the Director correctly observed that the Commission's concern with financial problems of a licensee is limit-ed to the relation which those problems may have to the protection of public health and safety.) Allegations about financial difIiculties at an operating facility are not by themselves a sufficient basis for action to re-strict operations. In the Commission rulemaking, cited by the Director, which eliminated the financial qualifications review for electric utilities, 2 These asserted circumstances include: (1) use of funds obtained through pledge of the company's stock of nuclear fuel for purposes other than purchase, remanufacturing and handlang of nuclear fuel; (2) need to ask for early payment from Central Mcine Power Company to meet Maine Yar.kee's daily cash requirement because its unsecured borrowing limit has been reached; (3) exhaustion of all of Maine Yankee's established sources of capital with the exception of infusaon of additional common equity con'ributions by its sponsors; and (4) need for " sponsor guarantees" to continue the fuel Gnancing.
3 Recently in an opinion isued subsequent to the Director's Decision the supreme Court took note of tlus limitsuon on the Commnsion's concern with economics.
The Nuclear Regulatory Commission (NRC)... does not purport to exercise its authority based on economic consideranons,10 C.F R. 8.4. and has recently repealed its regulanons concerning the Gnancial quatincations and capabilities of a utihty proposing to construct and operate a
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nuclear power plant. 47 Fed Reg 13751. In its nonce of rule repeal, the NRC stated that utahty financial quahncations are only of concern to the NRC if related to the pubhc health and safety.
s Pact 0c Gas & Electrac Co. v. Soane Energy Resowers Conserverson and Dev. Comm*n. 000 U.s. 000. 75 T
L Ed. 2d 752. 767 (1983L 159
47 Fed. Reg. 13,750 (1982), the Commission noted the absence of evi-dence that financial problems are inevitably linked with corner-cutting on safety.' Thus, even had the Commission retained its financial qualifi-cations review requirements, a showing that Maine Yankee was undergo-1
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ing financial difficulties would not by itself require that the Commission i
halt operations at that plant.5 On the other hand, allegations that defects
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in safety practices have in fact occurred or are imminent would of course form a possible basis for enforcement action, whether or not the root cause of the fault was financial. In the case at issue Safe Power has of-fered no evidence nor made any claim of actual hazards at Maine Yankee. Indeed, Safe Power's petition supports a view that Maine Yankee has continued to seek and receive from its " prime sponsors" or otherwise the funding which it needs to conduct its operations in a safe fashion. The Director did not abuse his discretion in refusing to take en-forcement actionsbased on mere speculation that financial pressures might in some unspecified way undermine the safety of Maine Yankee's operation.
Safe Power's concerns about decommissioning of the plant and dispos-al of spent fuel address matters which are presently the subject of rulemaking. The Director correctly advised Safe Power that proceedings will not generally be instituted in response to a petition under 10 C.F.R.
{ 2.206 to consider an issue the Commission is treating generically through rulemaking. The Commission currently expects to issue early in 1984 a proposed rule dealing with decommissioning of nuclear power plants and addressing, among other questions, how to assure the ade-qua.e financing of decommissioning by the licensee. In the absence of any evidence of need for early decommissioning at Maine Yankee, Safe Power's concerns about financirig for decommissioning afford no safety-related reason to take individual enforcement action against Maine Yankee, pc'iding completion of the Commission's generic treatment of the issue.*
Similarly, Safe Power's concern about adequate financing for spent fuel storage and disposal presents no need for safety-related enforcement action. The Commission has determined in its decision in the so-called
- The Commission's ri, e is currently under ressem in the D C. Circuit in Acn England Codiven on Am trar Pollmmn r ARC. No. 82 1581 Inled May 24,1982L 5 Under section 186 orthe Atomic Energy Act the Commission ma> revoke a twense when a condison exists that would have perrmtied the Commission to deny the lwense m the Grst in>tance, but it n not required to do so, especially w' tere means short or twense suspension a e awailable to proude continued assurance or public health and safety.
'In the event or an accident that might require premature decommissioning, increased properig insurance lescL ww available ror accident decontammation and requirei by NRC proude substantial assurance that it.dmg will be available Ser 47 Fed Reg 13.750 t19823 160
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" Waste Confidence" Rulemaking, 44 Fed. Reg. 61,372 (1979), that there is reasonable assurance that spent fuel can be stored safely in stor-age basins at reactor sites for an extended peried of time (i.e., up to thirty years beyond expiration of reactor operating licenses) until the e
availability of geologic repositories for safe, permanent disposal. See 48 Fed. Reg. 22,730 (1983). Thus the issue raised by Safe Power's petition is not a matter of safety but rather a question of the assurance that Maine Yant:ee will be able to pay the costs of storage and disposal of spent fuel produced by the facility. That assurance is enhanced by two developments subsequent to the Director's Decision denying the petition.
With regard to financing of spent fuel disposition, the Commission has proposed for public comment an amendment to 10 C.F.R. Part 50 whereby reactor licensees must submit for Commission approval no later than five years before expiration of the operating license written notification of the program by which the licensee intends to manage and provide funding for management of spero fuel at the facility upon expira-tion of the operating license until ultimate disposal in a repository. 48 Fed. Reg. 22,730, 22,732 (1983).
The Commission noted that [tlhe procedures established by this amendment are in-tended to confirm that there will be adequate lead time for whatever actions may be needed at individual sites to assure that the management of spent fuel following the expiration of the reactor operating license will be accomplished in a safe and envi-ronmentally acceptable manner.
42 Fed. Reg. 22,731 (1977).
As the Director noted, establishment of a fund for ultimate disposal of spent fuel was provided by Congress in the Nuclear Waste Policy Act of 1982,42 U.S.C. l 10,101. That provision is part of a comprehensive framework for disposing of spent nuclear fuel and high level radioactive waste, of domestic origin, generated by civilian nuclear power reactors.
48 Fed. Reg. 16,590 (1983).
Subsequent to the Director's Decision in the instant matter, the Department of Energy (DOE), acting pursuant to the Nuclear Waste Policy Act, issued first a proposed rule for comment' and then a revised final rule requiring utiliti:s, including Maine Yankee, to contract with DOE for waste disposal services that they will ultimately require.8 While the contracts have separate fee structures for spent fuel in place on April 748 Fed. Reg.5458 (198D.
848 Fed. Reg. 16.590 (198R 161
4,1983' and spent fuel to be generated after that date,'8 they provide in essence for total prepayment for the waste program.
On June 14, 1983 DOE received from Maine Yankee an executed contract, which when accepted by DOE will impose on Maine Yankee' an obligation to begin monthly payments to DOE to cover disposal costs for spent fuel being generated. Within a maximum of two years Maine Yankee must elect how to p'ay for disposal of spent fuel now on site and begin to pay for that disposal, which must be paid for in full by the end of ten years. These provisions are in addition to Commission require-ments for insurance and for decommissioning with which Maine Yankee will be obliged to comply.
In summary, Safe Power's petition demonstrated no safety-related concerns which might require immediate enforcement action, and there are procedures proposed or already in place to deal in a timely manner with the financial concerns raised by Safe Power's allegations. The Com-mission therefore affirms the Director's Decision that the relief request-ed by Safe Power should be denied.
Although the Commission has concluded that it may legally deny Safe Power's petition and has affirmed the Director's Decision, the Commis-sion has decided as a matter of discretion to direct the staff to look into the situation at Maine Yankee to determine whether there are any safety problems which might stem from financial difficulties.
Commissioner Roberts believes that financial qualifications reviews do little to enhance the protection of the public's health and safety.
Thus, as olicy matter, he would spend staff resources on safety-related issues.
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'Three options are available: payment in a lum; esm withm two years without interest. payment in a lump sum withm ten years with interest and 3.symert m rour installments per year over ten years with interest.
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There is a pay-as-you.go charge or I mil per kilowatt hour to be paid monthly to cover disposal or i
spent ruel being generated 162
O Commissioner Gilinsky dissents from this decision. His separate views are attached.
It is so ORDERED.
s For the Commission
- SAMUEL J. CHILK Secretary of the Commission Dated at Washington, D.C.,
this 2nd day of August 1983.
SEPARATE VIEWS OF COMMISSIONER GILINSKY MAINE YANKEE ATOMIC POWER COMPANY I am not prepared to join in the Commission's overblown and highly legalistic rejection of Safe Power for Maine's petition under Section 2.206 of our regulations. The petition alleges the Maine Yankee Atomic l
Power Company is suffering from financial difficulties and that the l
Company has inadequate resources to continue to operate the reactor safely and to dispose of the spent fuel and decommission the plant at the expiration ofits license. The Commission argues that since it no longer examines the financial qualifications of utilities for the purposes of licensing, and because the petitioners did not identify specific safety problems, the NRC is not obligated to look any further.
Whatever the merits of the petition, it should have been handled differently. Section 2.206 is intended to serve as an informal way for members of the public to raise concerns which they would like the NRC to address. The NRC's objectiye in responding should not be solely to determine whether the specific action requested should be granted or denied, but to make a reasonable evaluation of the concern raised and to do what is sensible.
The Commission has repeatedly professed that it wants to get away from legalistic formalities and to find more commonsense ways of
' Commissioner Gdinsky was not present when this order was approved but had previously indicated his disapproval.
163
O Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Alen S. Rosenthel Chairmen Dr. John H. Buck, Vice Chairman Dr. W. Reed Johnson Thomme S. Moore Christine N. Kohl Gary J. Edies Dr. Reginead L Gotchy Howard A. Wdber li
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l dealing with safety concerns. Here, instead, it has run a relatively straightforward petition through a series oflegal buzz saws.
The NRC's response quotes statutes, rules and court decisions, yet
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there is no record that at any point anyone looked into whether there are, in fact, any safety problems at Maine Yankee which might stem from financial difficulties. It would have been more helpful in dealing with this petition if, instead of peppering us with legal citations, the Director of Nuclear Reactor Regulation had told us that he had called the Region-I Administrator to check if there have been any such problems.
When the Commission dropped its licensing review of a utility's financial qualifications - because these reviews had never been useful in determining an applicant's qualifications to build and operate a nuclear power plant - it was not intended that absolutely no notice ever be taken of a utility's financial difficulties. These may well be a reason to double-check that a company is complying with NRC's safety requirements. While I am pleased that the Commission has agreed with my suggestion that the staff undertake such a check at Maine Yankee, I would not act on the petition until we have a response.
As a final matter, this petition should serve as a reminder to the Commission that it must face up to setting a standard for decommissioning. Instead of saying that it " currently expects to issue in early 1984" the long promised - and long delayed - decommissioning rule, the Commission should set a firm deadline of no later than December 31,1983, for the NRC staff to submit a proposed rule.
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Cite as 18 NRC 165 (1963)
ALAB-736 l
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Christine N. Kohl, Chairman Dr. John H. Buck Gary J. Edles in the Matter of l
Docket Nos. 50-440-OL 50 441-OL CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.
(Perry Nuclear Power Plant, Units 1 and 2)
August 24,1983 The Appeal Board dismisses, as an impermissible interlocutory appeal, the intervenor's exceptions to the Licensing Board's grant of an NRC staff motion for summary disposition on one of a number of con-tentions in the proceeding.
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RULES OF PRACTICE: INTERLOCUTORY APPEALS Appeals from licensing board orders that do not eliminate a party to a proceeding or dispose of a major segment of the case - such as a grant of summary disposition - are interlocutory and must await the issuance of the initial decision (or partial initial decision). Cincinnati Gas & Electric Co. (William H. Zimmer Station), ALAB-633,13 NRC 94 (1981); Hous-ron Lighting & Power Co. (Allens Creek Nuclear Generating Station.
Unit No.1), ALAB-629,13 NRC 75,77 n.2 (1981); Toledo Edison Co (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 75' (1975).
165
RULES OF PRACTICE: INTERLOCUTORY APPEALS The only procedural vehicle by which a party may seek review ofinter-locutory matters is a request for directed certilication. The exercise of the appeal board's discretionary authority to grant directed certification, however, is reserved for those important licensing board rulings that, absent immediate appellate review, threaten a party with serious irre-parable harm or pervasively affect the basic structure of the proceeding.
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See, e.g., Clere/and E/cciric ///uminating Co. (Perry Nuclear Power Plant, Units I and 2), ALAB-706,16 NRC 1754,1756 (1982).
APPEARANCE Susan L. Ill tt, Mentor, Ohio, for intervenor Ohio Citizens for Re-sponsible Energy.
MEMORANDUM AND ORDER Intervenor Ohio Citizens for Responsible Energy (OCRE) has filed exceptions to the Licensing Board's grant of the NRC stalTs motion for summary disposition on issue 13, concerning turbine missiles. See LBP-83-46,18 NRC 218 (1983). Because the Board's order does not eliminate OCRE as a party to the proceeding or dispose of a major seg-ment of the case, it is interlocutory. Appeals from such orders must await the issuance of the Licensing Board's initial decision (or partial ini-tial decision). Cincinnati Gas a E/caric Co (William H. Zimmer l
Station), ALAB-633,13 NRC 94 (1981); Houston Lighticg d Power Co.
( Allens Creek Nuclear Generating Station, Unit No.1), AL AB-629,13 NRC 75, 77 n.2 (1981); Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300,2 NRC 752,758 (1975).'
' Louiurna, Pe. ir, me./ (Wu Co. (w terford steam Ilecirn-Generating siation, t; nit 31. AL AB.220 8 a
AlC 93 t 1974) rehed upon bs oCRL. n noi to the conirary That decewon simply stands for the propo-
- stion that an order dechning to grant a motion for summary disposition is interiwutory and therefore not JmCnJhlc to appCal ll WJs not Intended to imply the conserse - r r.. that a gram of summart dispo-sition n a rinal. appealabic order The only procedural schnic by whnh a party ma> seck reuew orinierlot uior> maisers n a ret;uest for dirested 6criitication T he encrtne of our descrcleonar) authorst) to grani diret ted (crtelnation.
homeser, n rescrsed for those important inenung board ruhngs that. abcni immedule appellate rcuew. Ihreatert a p.irly with screpus irreparable harm or persausel) alleri the bau( strutture of the prot ecding.%r. r e. ( Awknal lai na //h,m,,,.ne,re ( n (Perr) Nutlear Power Plani. l'mi, I and 2p.
Al AH 706.16 NRC 1754.1756 (IWt21 i
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O OCRE's exceptions are dismissed.2 It is so ORDERED.
FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board 2 This dismissalis, of course, without prejudice and reDects no judgment on the merits of the twensmg Board's ruhng i
167
Cite as 18 NRC 168 (1983)
ALAB-737 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4
ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
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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, et al.
(Seabrook Station, Units 1 and 2)
August 26,1983 l
The Appeal Board denies petitions for directed certification of a Licensing Board order (LBP-82-32A,17 NRC 1170 (1983)) granting partial summary disposition in applicarit's favor on two contentions deal-l ing with evacuation time estimates.
RULES OF PRACTICE: INTERLOCUTORY APPEALS I
Under 10 C.F.R. 6 2.718(i) and { 2.785(b), appeal boards have the power to direct the certification of legal issues raised in proceedings pending before licensing boards. Exceptional circumstances must be demonstrated, however, before they will exercise that authority. Public Service Co. of New Hampshire (Seabrook Station, Units I and 2),
l ALAB-271,1 NRC 478,483 (1975).
RULES OF PRACTICE: INTERLOCUTORY APPEALS An appeal board will undertake interlocutory review, in its discretion, where the ruling below either (1) threatens the party adversely affected 168
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by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affects the basic structure of the proceeding in a pervasive or unusual manner. Public Service Co. ofindiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405,5 NRC 1190,1192 (1977).
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RULES OF PRACTICE: TIME LIMIT FOR FILING CONTENTIONS Commission's regulations direct that contentions be filed in advance of a prehearing conference.10 C.F.R. 6 2.714(b).
RULES OF PRACTICE: TIME LIMIT FOR FILING CONTENTIONS Under 10 C.F.R. { 2.714(a), good cause may exist for a late-filed con-tention if it (1) is wholly dependent upon the content of a particular document; (2) could not therefore be advanced with any degree of speci-ficity in advance of the public availability of that document; and (3) is tendered with the requisite. degree of pr,omptness once that document comes into existence and is accessible for public examination. The contention, however, is amenable to rejection on the strength of a bal-ancing of all five of the late intervention factors set forth in that section.
CLI-83-19,17 NRC 1041,1045 (1983).
OPERATING LICENSES: CRITERIA (EMERGENCY PREPAREDNESS)
No operating license may be issued unless a finding is made that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. 10 C.F.R. 6 50.47(a)(1).
t EMERGENCY PLANNING: EVACUATION TIME ESTIMATES Both notification time and preparation time are now considered to be components of evacuation time estimates under Rev. I of NUREG-0654/ FEMA REP-1, " Criteria for Preparation and Evaluation of Ra-diological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (January 1980), at Appendix 4, Table 2;Section IV.B; and Figure 2; and NUREG/CR-2504, " CLEAR (Calculates Logi-cal Evacuation And Response): A Generic Transportation Network Model for the Calculation of Evacuation Time Estimates" (March 1982).
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RULES OF PRACTICE: INTERLOCUTORY APPEALS An argument that future litigation may be required does not satisfy the test for directed certification. See Pennsylvania Power & Light Co.
(Susquehanna Steam Electric Station, Units I and 2), ALAB-641,13 NRC 550 (1981); Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit No.1), ALAB-635,13 NRC 309,310 (1981).
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APPEARANCES Diane Curran and William S. Jordan, III, Washington, D.C., for the l
intervenor, New England Coalition on Nuclear Pollution.
Robert A. Backus, Manchester, New liampshire, for the intervenor, Seacoast Anti. Pollution League.
t Jo Ann Shotwell, Boston, Massachusetts, for Attorney General Francis X. Bellotti, Commonwealth of Massachusetts.
Thomas G. Dignan, Jr., and R.K. Gad, Ill, Boston, Massachusetts, for the applicants, Public Service Company of New flampshire, er al.
Roy P. Lessy, Jr., and Robert G. Perlis for the Nuclear Regulatory Commission staff.
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l MEMORANDUM AND ORDER l
Introduction At hand are two petitions for directed certification in this operating license proceeding now pending before the Licensing Board.' One was filed by the New England Coalition on Nuclear Pollution (Coalition).
l The other was filed by the Attorney General of the Commonwealth of Massachusetts. Both petitions seek immediate interlocutory review of I
(
l %e recenily denied two earher peuunns in AL AB 731.17 NRC 1073 (19836 and AL AB 734. IN l
NRc 11 (1983 l
2 The se.wrust Ann. Pollution League (s APL). an intersenor in the proteeding. h.es rled a pleading snining the Anorno Generafs peuuon for directed terurscanon l
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the same Licensing Board order, which granted partial suinmary disposi-Lion in the applicants' favor on two Coalition contentions dealing ' ith w
evacuation time estimates. LBP-83 32 A,17 NRC 1170 (1983).' The ap-plicants and the NRC stalT oppose the petitions.
Under the provisionsur 10 C.F.R. 4 2.718(i) and 4 2.785(b), appeal boards have the power to direct the certification of legal issues raised in proceedings still pending before licensing boards. Exceptional circum-stances must be demonstrated, howeser, before we will exercise that authority. Public Scrrice Co. of New Hamp3 hire (Seabrook Station, Units I and 2), AL AB-271,1 NRC 478,483 (1975). As we indicated in Pubhc Service Co. ofIndiana (Marble flill Nuclear Generating Station Units I and 2), AL AB-405, 5 NRC 1190, 1192 (1977), we undertake discretionary, interlocutory review only where the ruimg below either t t) threatenlsi the part) adtersely allected by it with immediate and serious irreparable impact w hich..ts a practical matier. muld not be allesiated by a later appeal or (2) alTetils) the basic structure of the proceed-ing m a persasisc or unusual m. inner.
Because we lind that they meet neither of the A/arb/c #d/ criteria, we deny both petitions.
Discussion
- 1. The applicants mosed the Licensing Board for summary disposition of the Coalition's contentions dealing with evacuation time estimates.
The Coalition opposed the motion, claiming, in part, that the estimates were inaccurate because they were not based on the actual evacuation routes to be incorporated in the final emergency plans. Such routes are to be chosen in due course by the local gcvernmental bodies. The i The tuniennons read as follows lit l]
The esatuanon ume esumanes prosided by the, Applwanh m Appenda C of the Radiologisal 1 mergency Response Plan are macturaic m that they proside unre.tsonably optimisuc esumates of the ume recuired for casuauon in addition, the esumates prouded m the radiologisal emergen6) plan are uselew to emergent > plannmg because they f ail to mslude bounds of error, to indwate the tuus for codes or assumpoons used for the time esumates. in indi6 ate whether the model used n stain or dynamic, to proude a wnutmt) anal)m for the esumates or to rescal the underlying anumpinms lll 13 r
The prehmmary esacuanon ume esumaies submined by the Apptwams awume tasorable meath.
er tonditions and thus rail to account for the morst case situanon of adserse meather condinons desclopmg on a busy summer meekend allernoon Nor do they take mio atrount esacuee direc.
nonal bias. evacuauon shadow, or reaumabis espetted schwie mn. As a result. ihe esumates are unduly optimisuc and useless to f uture plannmg 171 m
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Licensing Board recognized that the plans were incomplete in that respect. Nevertheless, it granted summary disposition, holding that the Coalition's sssertion " simply presents no litigable issue, nor can any ad-verse legal conclusion be drawn front the present incompleteness of the estimates." See LBP-83-32A, supra,17 NRC at i180.
The stalT argues that the Board dismissed this portion of the Coali-tion's contention without prejudice to resubmittal once the actual routes are designated. In the stalTs view, the Board properly found that there was no litigable issue before it at this time. NRC Staff Response to Peti-tions for Directed Certification (August II,1983) at 14. The Coalition contends, however, that there can be no certainty that its grievance regarding evacuation times can be redressed in a timely fashion. It claims that there is no assurance that it will ever have an opportunity to litigate the adequacy or completeness of the evacuation estimates be-cause the applicants' ability to submit revised estimates depends entirely on the completion of the offsite emergency plans by the local governments. The Coalition asserts that, at a minimum, it will be re-quired to satisfy the heightened threshold imposed by the Commission's recent Cafawba decision ifit attempts to file new contentions to litigate the merits of any revised evacuation estimates.* We conclude that the Licensing Board's decision does not impropctly foreclose litigation of contentions directed toward the evacuation estimates or necessarily im-pinge upon the Coalition's ability to file additional contentions at a later date.
The Commission's regulations mandate that no operating license be issued unless a finding is made that there is reasonable assurance that ad-equate protective measures can and will be taken in the event of a radi-ological emergency.10 C.F.R. 4 50A7(a)(1). Evacuation is one of the measures routinely considered. It may turn out, as the Coalition 4 The Commission's regulations direct that contentions be filed in advance of a prehearing conference 10 C F.R. 4 2 714(bt On occasion, an intersenor will tender a contention at a later date. In the Catombo case, we held that as a rnatter oflaw Isuchi a contention cannot be rejected as untimely ifit (1) is w holly dependent upon the content of a particular document. (2) could not therefore be advanced with any degree of specificity brat all) in advance of the public asailabihty of that document, and (3 3 is tendered with the requisite degree or promptness once the document comes anno esistence and is accesu-ble for pubhc examination.
DuAr Pmr Co. (Catamba Nuclear station. Ur.its I and 2). AL AB-687,16 NRC 460. 469 (1982) on its resiew of that determination, the Commission agreed that this "three-part test constitutes a reasonable and useful test of the good cause factor as apphed to late-filed contentions based soM; sn information conlaincJ an institutionally unavailable hcensms-related documents " CLi-8319.17 NRC 1041,1047 (1983) But it went on to hold that a belated contenison is nonetheless amenable to rejection on the strength of a balancing of all rive of the late intersention facto set forth in 10 C F.R. 4 2.714tal /J at 1045. only one of those factors relates to good cause for the laie fihng one of the others is "lilhe esient to whech the petitioner's participation will broaden the issues or delay the proceeding ~
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O suggests, that there can be no basis for a finding that the Seabrook area can be evacuated within the times predicted by the applicants in the ab-sence of information on the actual routes chosen. See NECNP Petition for Directed Certification (July 21,1983) at 7. It may also be that the se-lection of the actual routes will necessitate a material alteration in the
^
estimates. Those issues, however, are not amenable to resolution now, and thus do not warrant our involvement in the proceeding at this stage.
We can review in due course any decision the Licensing Board may eventually reach regarding the actual routes chosen or, in the event the routes are not known before the Board issues its initial decision on the merits, the adequacy or completeness of the existing evacuation time estimates. For the present, we hold only that the Licensing Board did not abuse its discretion in disposing of matters currently before it, pro-ceeding to hearing, and leaving ultimate resolution of the question of the adequacy of the existing evacuation time estimates for future disposition.5 11 is true that, applying the Commission's Catawba decision, the Licensing Board might reject a new contention on the basis ofits balanc-ing of all of the Section 2.714(a) lateness factors,6 even though the Coa-lition had no earlier opportunity to formulate sufficiently specific conten-tions relating to the final evacuation plans. But that consideration does not have any bearing upcn whether the Licensing Board correctly dis-posed of the Coalition's current contentions summarily on prematurity grounds.7 Moreover, we are unprepared to assume for present purposes that there is a high probability that the Licensing Board would reject as un-timely a further contention put forth by, the Coalition once actual evacu-ation routes have been selected and announced. In adopting its Catawba rationale, the Commission expressly relied on the traditional willingness oflicensing boards to apply the lateness criteria generously to admit late-filed safety contentions on a showing of good cause.' And the Licensing 8 For similar reasons, we do not agree with the Coahtion that the effect of the Licensing Board's deci.
sion is to accept the apphcants' commitment to comply with Commission regulations as a substitute for a demonstration of compliance In the rmal analysis, berore the plant may be licensed, the apphcants must demonstrate that there is reasonable assurance that the pubhc will be adequately protected in the event of an emergency.
6 See note S. supra.
1 We note. in passing, that we also need not rule here upon the Coahtion's claim that, had it moved for such rehef, it would itselr have been entitled to summary disposition on those contentions because the raiture to include information on the actual evacuation routes in the time estimates already supphed ren-dered those estimates incomplete as a matter or law. NECNP Petsuon, supra, at 9. That claim was not presented to the Licensing Board and thus cannot be pressed berore us.
3 CLI-83-19, surro.17 NRC at 1046.
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Board appears to understand its responsibilities in this regard. In passing on the petitions to intervene and admission of contentions, for example, the Board explicitly declared its willingness to accept new emergency planning contentions "when the additional plans and reports are issued, provided contentions are filed shortly after issuance of the plans or reports." See LBP-82-76,16 NRC 1029,1078 (1982). And later, in
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acting on the motion for summary disposition, the Board noted that the applicants had committed themselves to revise their estimates once the evacuation routes have been chosen. Although the Board's rulings were made before issuance of the Commission's Catawba opinion, the Coali-tion has given us no cause to believe that the Board will not properly evaluate whether the exclusion of the actual evacuation routes from the estimates renders them incomplete or inadequate, or that it will foreclose litigation of properly submitted new contentions.'
We have reviewed the other allegations of error raised (explicitly or by adoption) by the Coalition and SAPL. In our judgment, none justifies our interlocutory appellate intercession in the face of the long standing articulated Commission policy generally disfavoring such review. See 10 C.F.R. ( 2.730(0. One matter does warrant comment, however.
The Coalition argued below that the evacuation estimates should in-clude a computation for notification and preparation time. The applicants indicated that estimates for notification, evacuation of special facilities and persons with special needs, and for confirmation that an evacuation has been completed, "will be developed in detail as the arrangements for Seabrook Station are established.
"'o The Licensing Board deter-mined that, as a matter oflaw, the applicants' evacuation time estimates were not deficient in omitting notification and preparation times. This matter would not merit comment at this stage had the Licensing Board simply deferred ultimate consideration until the applicants' later
'The applicants staie that the scledian of the esacuation routes mill hase the sole efled of refinmg Ihe esacuauon ume estimates to refled saungs that may accrue as a result of local trafTic control rneasures They assert, therefore. that the Board has already concluded thal only the initial time estimates consti.
tule beenung seems subject to langanon See Applicanti Arismer to Peutons for Directed Certirkanon
( August 8.1983) at 27 n.19 As noted abose. me anterpret the Board's order simply to hase dismissed the Coahuon's consennon 45 premature Nothing in that order suggests that the Board deems conten.
tions directed to the etTect of the selection of routes on the evacuation time estimates to be automatical-ty outside the scope of hugable swues. Indeed. specific routes and road condiuons hase been the subject l
of huganon in some cases Scr. c.x. Drrmer Ednne (o (Enrico Ferme Aiomic Po.er Plant. Unit 2).
l LBP-82 96.16 NRC 1408.1422 e 1982). a//'d. AL AH-730.17 NRC 1057 (1983) % hether the eusimg I
eVacuJuan plan as sufficient lo demonstrate reawnable a%urance that ddequale prolecuse measures can and mill be taken in the event of are emergency,if the actual routes have nol been selected must be lef t for the Licenung Board's determinanon in the first mstance H'$rr Attachment A to the afTidaut of James A Mcdonald. accompanyms the Arpinanti Twenty-1
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First Monon for summary Dispouuon (Contention NECNP lli 12 and 131 IFebruary 14.1983). Pre-hminary Esuuanon Clear Time tsumates for Areas Near se4 brook station ( August 4.1980) at ll 174
O submission. But the Board's decision relies in part on NUREG-0654/
FEMA REP-1 (Rev. 0), " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (January 1980). That document explicitly states that "[tlhe requested estimates for time required for evacuations relate primarily to the time to implement an evacuation as opposed to the time required for notification." Id. at 4-1. The Board recognized that the cur-rent version of NUREG-0654, i.e., Rev.1, omits that explanatory phrase, but could find "no indication that the NRC purposely intended to change the requirement." LBP-83-32A, supra,17 NRC 1178. In short, the Board may well have discouraged the formulation and submis-sion of estimates that include notification and preparation times.
We believe the Board may wish to reconsider its conclusion in this regard. In Section 13.3 of the Seabrook Safety Evaluation Report (SER),
Supplement No.1 (April 1983) at 13-15, the staff utilizes NUREG-0654, Rev.1, as the criterion against which to measure the applicants' emergency plan. It is plain that the Board also recognized that Rev. I is the relevant regulatory document. While there is no clear specification in the text of Rev. I regarding the makeup of the overall evacuation I
time estimate, we believe the omission of the explanatory phrase includ-ed in the earlier version was quite intentional. In this connection, there are statements in the greatly expaniled Appendix 4 of Rev. I that estab-lish that evacuation time is made up of several components, and that both notification and preparation times are now to be included among those components. See Appendix 4, Table 2;Section IV.B; and Figure l
- 2. They are, in fact, included among the components listed in NUREG/CR-2504, " CLEAR (Calculates Logical Evacuation And Response): A Generic Transportation Network Model for the Calcula-tion of Evacuation Time Estimates" (March 1982). In our judgment, the change from Rev. O to Rev. I was deliberate, and NUREG-0654, Rev.1, now contemplates that the makeup of the estimated evacuation l
time include time estimates for notification and preparation."
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- 2. Turning to the Attorney General's petition, the record discloses that he did not oppose the applicants' request for summary disposition l
below. Such lack ofinterest certainly undermines the justification for his i
request that we step into the proceeding at this interlocutory stage.
While a lack of participation below may not absolutely foreciose grant of 3 3 The apphcants argue that. in any event, the Coahtson errs in suggesting that mobilization and prepara-l tion tirnes were ignored in its estimates. See Apphcants' Answer to Petitions for Directed Certification.
(August 8,1983) at JI n.22. A review of the underlying referenced document (see note 10. supre),
homever. reveals that preparation and notification. although not, stnctly speaking, " ignored." were plainly and intentionally excluded from the calculation at this time.
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9 a request for directed certification in all circumstances, it does increase the movant's already heavy burden of demonstrating that our interces-sion is necessary. The Attorney General offers no explanation for his sudden manifestation of interest and, apart from his argument that the Board has ruled incorrectly, claims only in the most conclusory manner that the Licensing Board's, decision will result in unusual litigation ex-e pense and delay and impede the development of a sound record for decision. Such general assertions are insufHeient to warrant directed certification.i2
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The petitions for directed certification are denieu it is so ORDERED.
FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board l'
e
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37 An argument that future htig hon may be required does not sausfy the test for directed cert #ganon See Pennsyhene fowr d Leht Co. (susquehanna steam Electre Stanon. Unos I and 2) ALAB 641 E
13 NRC 550 0981); #m<sion Lehrms 4 Powr Co. ( AttensCreek Nucicar Genetaung sianon. Una No 1), AL A8435. Il NRC 309. Jfo (1980.
r sf' 176 W
... - -,. -.,.,,, -., - -,,,, - - - -,,,, -, -. ~
Cite as 18 NRC 177 (1983)
ALAB-738 s
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
4 Gary J. Edles, Chairman Dr. John H. Buek Christine N. Kohl s
in the Matter of Dccket No. 50 289-SP (Management Phase) i liETROPOLITAN EDISON COMPANY, et al.*
(Three Mlle Island Nuclear s
i Station, Unit No.1)
August 31,1983 L
i Upon consideration of the motions of several intervenors to reopen the record in the management phase of this proceeding, tne Appeal Board grants the motions in part (insofar as they deal with certain allega-tions concerning leak rate data) and remands the matter to the Licensing Boaru for further hearing.
RULES OF PRACTICE: REOPENING OF PROCEEDINGS A motion to reopen a record must satisfy a tripartite test: (1) is the motion timely? (2) Does it address significant safety or environmental issues? (3) Might a different result have been reached had the newly
'on August 13. 1981, the Comm6ssion authorized the issuance or an amendment transferring the license to operaie TMI I rrom Metrapolitan Edison Company to GPU Suclear Corporation Ser
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CLI 81,87,14 NRC 299 Because no one has aslied ror a substitution or parties, me mill continue to shom L4etr>politan Edison in the caption, consistent with all prior decisions and orders in this procee6cs.
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1 proffered material been considered initially? Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-598,11 NRC 876, 879 (1980). See Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-462,7 NRC 320,338 (1978);
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138,6 AEC 520,523 (1973).
RULES OF PRACTICE: REOPENING OF PROCEEDINGS The proponent of a motion to reopen a record bears a heavy burden.
WolfCreek, supra,7 NRC at 338.
NRC: AUTIIORITY TO INVESTIGATE The pendency of a criminal investigation by the Department of Justice does not necessarily preclude other types of inquiry into the same matter by the NRC. See SEC v. Dresser Industries, Inc.,628 F.2d 1368 (D.C. Cir.1980) (en banc), cert. denied,449 U.S. 993 (1980); Metropoli-tan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2),
CLI-80-22,1I NRC 724,729-30 (1980).
RULES OF PRACTICE: REOPENING OF PROCEEDINGS A matter may be of such gravity that a motion to reopen may be grant-ed notwithstanding that it might have been presented earlier. Vermont Yankee, supra,6 AEC at 523.
NRC: ADJUDICATORY AND INVESTIGATORY RESPONSIBILITIES Commission policy recognizes that ongoing NRC investigations and adjudicatory proceedings that involve the same subject matter can pro-ceed simultaneously, subject to specified procedures to deal with con-flicts concerning public disclosure of investigatory laformation. 48 Fed.
Reg. 36,3 58 (1983).
RULES OF PRACTICE: EX PARTE COMMUNICATIONS The staff's communication of the results ofits reviews, through public filings served on all parties and the adjudicatory boards, does not consti-tute an ex parte communication.
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O RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES
\\.,
All parties, including the staff, are obliged to bring any significant new j
m.. [
information to the boards' attention. Tennessee Valley Authority (Browns g'
Ferry Nuclear Plant, Units I,2 and 3), ALAB-677,15 NRC 1387,1394 (1982).
ATOMIC ENERGY ACT: MATERIAL FALSE STATEMENT The untimely provision of significant information is an important mea-sure of a licensee's character, particularly if it is found to constitute a material false statement. See Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI 76-22, 4 NRC 480, 488-93 (1976).
APPEARANCES Marjorle M. Aamodt and Norman O. Aamodt, Coatesville, Pennsylvania, intervenors pro se.
Louise Bradford and Joanne Doroshow, liarrisburg, Pennsylvania, for intervenor Three Mile Island Alert.
Ellyn R. Weiss, Washington, D.C., for intervenor Union of Concerned Scientists.
Douglas R. Blarey and Robert W. Adler, liarrisburg, Pennsylvania, for the Commonwealth of Pennsylvania.
Ernest L. Blake, Jr., and George F. Trowbridge, Washington, D.C., for licensee Metropolitan Edison Com'pany, et al.
Jack R. Goldberg and Mary E. Wagner for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER I
Intervenors Marjorie M. Aamodt and Norman O. Aamodt and Threc
}
j, Mile Island Alert (TMIA) collectively have filed three motions to I
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G reopen the record in the management phase of this proceeding. They base their motions on various reports and other information that assert-edly have come to light recently and bear upon the Licensing Board's
~T partial initial decisions concerning management competence and integrity, which are now before us on appeal. See LBP-81-32,14 NRC 381 (1981), and LBP-82-56,16 NRC 281 (1982). Intervenor Union of Concerned Scientists and the Commcnwealth of Pennsylvania, respond-ing to our request for additional comments on certain matters ostensibly relating to the motions, generally support reopening. Licensee opposes each of the motions. The NRC stafTopposes some of the relief requested but asks us to defer ruling on other issues and to await the completion of several ongoing staffinquiries.
For the reasons set forth below, we grant the motions insofar as they seek reopening for further hearing on the so-called liartman allegations of falsification of leak rate data. In all other respects, the motions are denied.
1.
The criteria that a motion to reopen must sa, ify have evolved over the last decade into a well-defined tripartite test.
(1) is the motion timely? (2) Does it address significant safety (or environmental) issues? (3) Might a different result have been reached had the newly proffered material been considered initially?
Paci/7c Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB 598,11 NRC 876, 879 (1980). See Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-462,7 NRC 320,338 (1978); Vermont rankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973).
Although the basic standard is settled, applying it to a particular motion to reopen often proves a disproportionately greater task. Thus, we have characterized the burden of such a motion's proponent as a " heavy" one. Wolf Creek, supra,7 NRC at 338.
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II.
TI'c Aamodis' Grst motion to reopen concerns information revealed in Board Notification BN 82-84 (August 17, 1982).' Attached to the Board NotiGcation was an inspection report that discussed the discovery in May 1982 by licensee's Radiological Assessor of several unattended radiation worker examinations and their answer keys. Although this ap-parently occurred on two occasions over a three-day period, the NRC staffinspector concluded that licensee's corrective actions were adequate and that it appeared to be an isolated incident. Inspection Report No.
50-289/82-07 (July 1,1982) at 17. The Aamodts suggest, however, that this matter raises questions about licensee's training program, warranting further hearing. They also assert that the " withholding" of information about this incident for over three months casts doubt on the integrity of both licensee's management and the NRC staff.
In their second motion to reopen, ~the Aamodts list Gye categories of assertedly new and signiGeant evidence. This information came to light, according to the Aamodts, in the now-settled civil lawsuit brought as a result of the accident at TMI-2 by licensee's parent corporation against the manufacturer of the TMI reactors, Babcock & Wilcox (B&W). See General Public Utilities Corp. v. Babcock & Wilcox Co., No. 80 CIV-l683 (S.D.N.Y. filed March 25,1980) (hereinafter "Bd W trial").2 The first such information is the testimony at the Bd W trial of liarold W. Ilartman, Jr., a former TMI-2 control room operator. Ilart-man testified that the technical speciGcation for unidentiGed leak rates at that facility, one gallon per minute (gpm), was exceeded and the cor-responding data were falsiGed for a period of sweral months before the accident. The Aamodts contend that it is not unlikely that licensee's management (speciGcally Robert Arnold, now president of GPU Nuclear Corporation, the new entity responsible for TMI) knew of this matter.
In their view, the Hartman testimony shows a lack of management in-tegrity and thus could have provided the Licensing Board with the evi-dence necessary to Gnd management involvement in the instances of cheating on operator license examinations already explored at hearing.
See LBP-82-56, supra,16 NRC at 292-93.
I The Aamodis riled this motion with the Lwensing Board in ALAB-699.16 NRC 1324 (1982) =c agreed with tha: Board that it taked jurisdicteo.S over the motion and that it should be referred to us 2 The Aamodts' motion to reopen is contamed withm their comments to the Commission on the ade.
a.
quacy of the stali review or the 8d H trul record The Commisuon referred the monon to reopen to us ror disposition by order or May 5.1983 tunpublished), at 3-4 Accordmgly, we address here only those arguments directed to the mohon to reopen ror rurther hearms ort the rive categories or mformation speceried.
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The second piece of new information, by the Aamodts' account, is a 1978 in-house audit of TMI management. Among the deficiencies noted was training, an area contributing to the accident and explored at the re-start hearing. Third is the BalV trial court's "[clhastisement of Robert Arnold for [mlisleading [tlestimony." Aamodt.. Motions to Reopen x
(April 16,1983) at 9. The Aamodts contend that Arnold displayed a similar lack of forthrightness at the hearing on the cheating incidents and that the Licensing Board erred in not giving it greater weight. In their opinion, the new evidence - f.e., the Bd IV trial court's perception of Arnold's candor - supports their position on management involve-ment in cheating.
The Aamodts' fourth category of new and significant information con-cerns evidence presented at the Bdif trial showing B&W's superior technical resources. In short, this "new evidence" assertedly supports the Aamodts' apparent belief that B&W, rather than licensee and the NRC, should be principally responsible for training and administering operator examinations, respectively. Finally, according to the Aamodts, new evidence gleaned from the Balf trial transcript casts doubt on the Licensing Board's findings concerning operator ability to respond in an emergency. See, e.g., LBP-81-32, supra,14 NRC at 474-75. The Aamodts urge the creation of a backup decision center, stafTed by B&W cxperts and equipped with the capability to tap into all significant control room instrumentation.
TMIA's motion to reopen is b. sed primarily on the staffs recent action to " revalidate" its position on licensee's management integrity.
See pp.184-85, irtfra. As part of that effort, the staff prepared Inspection Report No. 50-289/8310 (May 17,1983), which covers a number of areas at issue in the management phase of this proceeding. Included is a discussion of the Hartman allegations, based on a review of job titles (not personal interviews) to determine if any individuals who might have been involved in falsification of TMI 2 leak rate data are now in-volved in TMI-l management. In a May 19, 1983, memorandum to the Commission, the NRC's Executive Director for Operations, William J.
Dircks, identified the following five matters that the revalidation effort and inspection Report did not address and thus are still considered "open issues"- (1) the veracity of the Hartman allegations; (2) state-ments in the Balf trial transcript; (3) allegations by two men employed in the TMI 2 cleanup operation (Richard Parks and Lawrence King) about retaliation against "whistleblowers"; (4) concerns raised by two 1983 management audits by outside consultants (the BETA and RHR I82 i
O Reports);I and (5) the timeliness oflicensee's submission of the BETA and RHR Reports and other documents to the Commission and this Board, and its implications for management integrity. TMIA seeks reopening to explore each of these five issues.*
TMIA also specifies several more areas warranting examination: the credibility of Inspection Report No. 50-289/83 10, especially its treat-ment of the Hartman allegations and the BETA and RHR Reports; the credibility of an earlier staff review of the Bd W trial record, headed by Victor Stello; and allegations by other whistleblowers besides Parks and King, and the significance of a Department of Labor finding of manage-ment retaliation against Parks.8 Clearly though, TMIA's chief concern is that the BETA and RHR reports have seriously undermined earlier tes-timony on a number of areas related to overall management competence and integrity (such as maintenance, training, and operator attitudes).
The Hartman allegations of falsified leak rate data, raised by both TMIA and the Aamodts, unqtiestionably constitute the most disturbing basis on which the requests to reopen are premised. We turn to this matter first.
A.
l
- 1. A brief chronology of the events surrounding the Hartman allega-tions themselves is in order. Allegations of falsification ofleak rate data first came to the NRC's attention during a May 22,1979, interview with Hartman conducted by staff from the Office ofInspection and Enforce-nient who viere investigating the TMI-2 accident ("I&E Interview"). In a deposition taken on October 29,1979, by Harold L. Ornstein on behalf of the Rogovin Special Inquiry Group, Hartman reiterated his claims
("Ornstein Deposition"). In March 1980 a New York City television sta-tion aired a story including portions 'of its own similar interview with Hartman. At about the same time, I&E interviewed Hartman again and examined existing documentation in an efTort to verify the charges. See l
I See Basic Energy Technology Associates. Inc.. "A Review or Current and Projected Expenditures and Msnpower Unlaanon ror GPU Nuclear Corporation" (Fe wuary 28.1983) (" BETA Report"); P.
D'Arcy & J. sauer "Pnority Concerns of Licensed Nuclear Operators at TMI and oyster Creek and sussested Achon steps" (March 15.1983) ("RHR Report").
- TMIA also supports the Asmodts'second motion to reopen.
5 TMIA also mentions Board Notification BN-83-71 (May 18.1983) concerning alleged falsification or operator training records in 1977. In supplementary comments, the Aamodts as well refer to this matter.
Aamodt Response to Appeal Board order of June 16,1983 Uuly 2.1983) at 1213. The NRC's ofTre or Investigations recently concluded its inquiry into the matter, finding no support ror the allegationsL See Board Notification BN 83-71 A Uune 27.1983). Neither TM1A nor the Aamodts specifically seek reopening on this point or provide additional matenal inrormauon beyond that revealed in BN-83-71 A.
183
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.
2), CLI-80-22,11 NRC 724, 728 (1980). On April 2,1980, the matter was referred to the U.S. Department of Justice (DOJ) for criminal in-vestigation and the NRC halted its own investigation. Ibid. Two weeks later licensee hired a Minneapolis law firm to conduct an inquiry. The latter submitted its report to licensee in September 1980 ("Faegre &
Benson Report")
- As part ofits evidentiary presentation before the Licensing Board, the staff prepared a Safety Evaluation Report (SER). Two supplements to the SER, issued in November 1980 and March 1981, each made a pass-ing reference to the allegations of falsified leak rate data, noting the pending DOJ investigation and suspension of any further NRC inquiry.
No other evidence on the matter was adduced at the hearing.
Consequently, in LBP-8132 the Licensing Board noted its limited infor-mation and made an overall finding of no deficiencies in corporate management, subject to the DOJ investigation.14 NRC at 557-58. In the meantime, the Justice Department had convened two successive federal Grand Juries to investigate the Hartman allegations. The second such investigation is still pending.
Aware of the then-ongoing Bd W trial (see p.181, supra), NRC Chairman Palladino in December 1982 requested the staff to review that trial record for information that could alTect the Commission's restart decision. On January 24,1983, before all of the evidence for both sides had been presented, the parties to that action reached a settlement. The staff, however, completed its review of the nonetheless substantial trial transcript and exhibits and submitted a report to the Commission on March 28,1983 ("Stello Report"). The report concluded that the Bd W trial record did not add substantially to the information already known about the Hartman allegations. Stello Report at 17-18.' But in subse-quent comments to the Commission, the staff indicated it was
" revalidating" its position on the management integrity issue - having previously found no deficiencies in that regard - at least in part because of the Hartman allegations. NRC StalTs Comments on the Analysis of GPU v. B&W Transcript (April 18,1983) at 4. On May 4,1983, at the i
regrest of staff counsel, licensee submitted the 1980 Faegre & Benson Report to us and the other parties in this proceeding. In the meantime, as part of the revalidation process, the staff completed Inspection Report 6 Also known as the "Rockwell Report "
i Bancally, the part or the Bd W Inal transcnpt deshng enh the Hartman alleganons here at issue con-sists or portions or a deposinon or Hartman taken on July 16.1982. and entered into the Bd W record at Tr. 7008-95.
I84
O No. 50-289/83-10, but listed the veracity of the liartman allegations among the "open issues" in the May 19 Dircks memorandum. See p.
182, supra. At a May 24, 1983, Commission briefing on the staff revalidation, Tim Martin, Director, Division of Engineering and Techni-cal Programs, NRC Region I (and a former NRC inspector who inter-viewed liartman in March 1980), stated:
I can tell you for a fact that the records were falsified, that much we knew. What caused those records to be falsified, what was the motivation for those records to be falsified, that I can't tell you because I was not allowed to get far enough into it to find out.
C.Tr.14.8 It is apparent from this chronology that the entire liartman matter es-sentially lay dormant, for purposes of this proceeding, from April 1980, when it was referred to the Justice Department, until relatively recently, when examination of the Bd W trial record led to renewed interest.
- 2. The allegations themselves can be summarized fairly briefly.' The technical specifications for TMI-2 establish a maximum rate of one gpm for unidentified leakage from the reactor coolant system. Tests to mea-sure leakage are to be taken every 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> if the specified rate is ex-ceeded and cannot be limited within four hours, the plant must be placed in "liot Standby" in the next six hours and " Cold Shutdown" in the following 30 hours3.472222e-4 days <br />0.00833 hours <br />4.960317e-5 weeks <br />1.1415e-5 months <br />. For several months before the March 1979 TMI-2 accident, Hartman states that it was difficult to get a " good" (i.e.,
less than one gpm) leak rate at the facility.io This coincided with leaking safety valves on the pressurizer, as well as substantial oscillations in vari-ous plant parameters. Hartman claims that, pursuant to directions from a shift supervisor and a shift foreman, he and at least one other identi-fled control room operator on several occasions redid leakage tests until they obtained a good rate. This involved the addition of hydrogen or water to the system, in small increments and without recording this 8 "C.Tr."is used to denote the transcript of the Commission's May 24 meeting.
l
'The source of this summary is the Hartman deposition as read into the Bd W trial record at Tr.
7008 95. See note 7 sapra. This is the pnncipal evidence concerning falsificaten ofleak rate data upon I
which both TMIA and the Aamodts rely in support of their motens to reopen. other documents provid-ed by the stafrand hcensee, however, are consistent with this account of the circumstances surrounding the charges. Sec. e.g. IAE Interview; ornstein Deposition; Faegre & Benson Repo 1, vols. one and I
Four.
I l
10 We note that in a letter and Notice of Violation issued october 25, 1979, the stafrconcluded that from March 22-28.1979, umdentined leakage at TMI-2 remained above one spm and the plant was not placed in " Cold shutdown." Notice of violanon at 10. The Gne for this techmcal specificauon violation was included in a total fine of s!55,000 for numerous other viotauons relaung to the TMI 2 accident.
Licensee did not challenge the leak rate rinding.
(
s l
185 l
G action in the control room logs. liartman says he assumed other un-named operators and supervisors took similar action because they had
'~
talked to him about it. lie and others threw out bad test results, with the knowledge of supervisory personnel, llartman asserts further that he dis-cussed the problem of bad leak rate data with at least one supervisor, who advised him that people were working on it, including modifying the computer program used for the data calculations. Consequently, Ilartman assumed that personnel on other shifts and management were aware of his concerns.
- 3. In addressing the three-prong Diablo Canyon standard for reopen-ing (see p.180, supra), licensee argues only that the Aamodts' motion is not timely." Licensee states that llartman's allegations are not new, having been broadcast on a New York television station in March 1980 and publicized in liarrisburg newspapers at about the same time.
Licensee also notes that, in December 1981 at the reopened hearing on cheating, Mrs. Aamodt said that she had read the I&E interview with llartman. See Tr. 26,346-47. Further, licensee argues that the stalTs SER, Supplement No.1 (November 1980), "certainly provided sufri-cient information to allow the Aamodts to pursue the matter at that time." Licensee's Reply to Aamodts' Motion (May 9,1983) at 4.
Consequently, in licensee's view, "[ilhe Aamodts are inexcusably late in seeking to reopen the record on the basis of the flartman allegations and have provided no new information not available throughout the course of the restart proceeding." /d. at 6. Licensee is silent as to wheth-er the llartman allegations address a significant safety issue and whether the Licensing Board might have reached a different result had this matter been considered initially.
The staffs position is somewhat curious. First it argues, as does licensee, that the lf artman allegations are not new and thus the Aamodis' motion is not timely. NRC Staff's Answer to Aamodt's Motion (May 13,1983) at 4,7. The staff a so contends that this is not a significant issue because changes in personnel at TMI-l are such that the leak rate problems alleged to have occurred at TMI-2 are unlikely to occur at TMI-l. Id. at 7. See Inspecticn Report No. 50-289/8310 at 10-6. Then the staff states that, although the liartman allegations themsebes proside no basis for (hanging any aspect of any presiously. stated Staff position on management issues, further desel-H Lwensec did not respond to TMI A's moi on to reopen inwrar as si toncerns the Hartman allegations twensec tumends thai TMI A's motion aciually dm unes only the BET A and RHR reports end. hense.
Iwenwe has limited its respone accordingly. Lwenwe's Resrome to TMI A Moison to Reopen the Record dune 7.1983) at 3.
186
O opment of the open issues identified in the Revalidation Memorandum ((one of
~
which is the scracity of the Hartman allegations)) is required before the StafT can conclude whether or not one or more of those matters will provide a basis for a change in the Staff's position on any of the management-related issues in this proceeding.
~.
NRC Staff's Answer to ThilA hiotion to Reopen Uune 13,1983) at 6 The staff continues: "[the liartman allegations] could affect the resolu.
tion of the management issues involving the technical and character qualifications of Licensee's management, operations and technical staff." /d. at 7. But instead of reopening the record now to achieve that resolution, the staff urges us to defer ruling on ThilA's motion "until further development of the open issues permits a sound determination of their significance." /d. at i1.
- a. We reject licensee's and the stafTs arguments that the motions to reopen on the Hartman allegations could have been filed earlier and thus are untimely. It is true that the allegations, first made in the hiay 1979 I&E Interview, are not "new." But even assuming that intervenors had knowledge of Ilartman's cialms then or at any time before the i
Licensing Board issued LBP-81-32,'2 the stalT, in rather cryptic com-I ments in its November 1980 and N1 arch 1981 supplements to the SER, clearly discouraged any other party from pursuing this at the hearing below. Supplement No. I stated that the NRC's initial inquiry into the matter of improper collection of leak rate data was " suspended" so as not to interfere with pending Justice Department and Grand Jury proceedings. As a result, the staff could " draw no conclusions on this item" until the DOJ investigation was completed. SER, Supp. No.1 l
(StafT Exhibit 4), at 37. Supplement No. 2 stated that the DOJ inquiry l
was still ongoing and that involved NRC personnel had "been requested j
by DOJ not to discuss the details of the matter." SER, Supp. No. 2 (StalT Exhibit 13), at 9. The stalT also noted, however, that it would
" resume its investigation" when the Justice Department concluded, and that in any event it believed, on the basis of a preliminary review of the allegations, that any management deliciencies hau been corrected and that "the identified concerns appear to be only of historical 12 The basis for such an assumption is not evident. Licensee pomis to a March 1980 teleusion broadcast m New York City and unspecsGed Harnsburg newspaper accounts of the Hartman allegations We are unmilhng to Gnd on either basas that mtervenors or any other member of the community surroundmg TMl was put on notice of the allegations.
We also note that neither the l&E Interuem nor any other pertmtni document was provided to the Licensmg Board and, m fact. did not come 10 our attention until licensee submitted the Faegre &
Benson Report to us several months ago.
187
9 significance." /d. at 9,10.8) The message was manifest: the 11artman allegations would not be investigated further because the Justice Depart-ment was conducting its own inquiry.88 Furthermore, the clear implica.
,'~
tion was that the NRC's investigation would resume ister and could be pursued then at hearing, if necessary. See also C.Tr.16-17.
It is ths understandable that neither the other parties i:or the Licens-ing Board pursued the matter at the hearing below. See LBP-81-32, supra,14 NRC at 557-58." The first time that it became apparent to in-tervenois that 11artman's allegations were not "offlimits" and could be pursued at hearing was upon examination of the Bd W trial record. That proceeding demonstrated that the pendency of the DOJ investigation does not necessarily preclude other types of inquiries into the same matter.56 In these circumstances, it would be fundamentally unfair to find that intervenors could and should have raised the liartman allega-tions earlier. liad they tried to do so, we have no doubt that the staff and licensee would have interposed forceful objections on the basis of the Grand Jury proceeding."
- b. Whether the liartman allegations raise significant safety issues need not detain us long. Alleged violation of technical specifications, noncompliance with proper operating procedures, and destruction end falsification of records at Unit 2 before the accident - all assertedly under the auspices of at least first level management - obviously have serious implications for the proposed restart of Unit 1. The facts that the NRC staff referred this matter to the Justice Department for criminal in-vestigation and that the Department has presented it to two Grand Juries underscore its significance.
Moreover, among the matters the Commission directed the Licensing Board to examine in this phase of the proceeding was issue 10 -
33 The focus of both sER supplements was on alleged failures to adhere to procedures. There ues no suggestion that would have alerted the parties - save a reference to " management philosophy" in sup-piement No. I - to possible management involvernent in the alleged wrongdoing.
18 Although the sER suggests otherwise. there was no irrat bar to the NRC's contmued. parallel investi-gation or the Hartman allegations. See SEC v. Drrsser ladus.. lac. 628 F.2d 1368 (D C. Cir.1980) (en bancl. crrr. dremf. 449 U.s. 993 (1980); TMI-1. CLI-80-22. sup-a. Il NRC at 729-30.
U At the December 1981 reopened heanns on cheating. Mrs Aamodt noted difUculty in reaching Hart.
man and his inability to " speak with anyone in this hearing because of hes involvement in (the Grand Jury 1 investigation." Tr. 26.347.
Licensee, as well. did nothms to prompt the full airing of Hartman's charges. Ahhough it had com-missic,ned an outside study of the matter, it did not disclose the resulting 1930 Faegre & Benson Report to the stafr. the other parties, or any adjudicatory board until the spnns or 1983. See note 38, utfra.
16 In addition to the Hartman deposition read into the Bd W trial record, the deposition or another tormer TMI 2 control room operator. Theodore F. tiljes. was taken also addressing the leak rate data problem-17 In any event. we have long recosmzed that "a matter may be or such gravity that the motion to
~-
reopen should be granted notwithstandmg that it might have been presented earlier." Fermont YasAcc.
supra. 6 AEC at 523. As demonstrated below, this is such a case.
188 M
O whether the actions of Metropolitan Edison's corporate or plant management (or any part or individual member thereoD in connection with the accident at Unit 2 reveal deficiencies in the corporate or plant management that must be correctect before Unit I can be operated safelyl.1 CLI-80-5,11 NRC 408,409 (1980). The staff early on viewed the liart-man allegations as within the scope of this issue, and no one now claims otherwise.'8 In its first supplement to the SER, the staff stated: "The allegations raised concerns regarding the principles of compliance with operating procedures and management philosophy and actions." SER, Supp. No.1 (Staff Exhibit 4), at 37. Nothing in the information that has been revealed so far - though certainly not dispositive of any issue -
has alleviated those concerns. In fact, the Facgre & Benson Report, Ornstein Interview, and Illjes deposition (see note 16, supra) are gener-ally consistent with liartman's I&E Interview. Plainly, they demonstrate the need for additional inquiry.
- c. Determining if there might have been a different outcome below, had the newly proffered evidence been considered, is generally the most dilricult of the three reopening criteria to decide. That task arises here in a somewhat different context than is ordinarily the case and is less troublesome.20 The Hartman allegations highlight a' gap in the record that the Licens-ing Board explicitly acknowledged through its conditional finding of no unremedied deficiencies in licensee's management. The Board stated:
In overall summary of CLI-80-5 issue (10), we have noted our lack of knowledge about the Department of Justice investigation. Subject to this matter... we find no deficiencies in the corporate or plant manage' ent, arising from our inquiry into m
management's response to the accident, that have not been corrected and which must be corrected before there is reasonable assurance that Unit I can be operated safely.
LBP 81-32, supra,14 NRC at 557 (emphasis added).2l Thus, in efTect, the record on this point has never closed. The Board's decision to qualify 18 Issue 13 "such other specific issues as the Board deems relevant to the resolution or the issues set forth in this order" - also provides a basis for including the Hartman allegations within the scope of the proceeding. CLI-go-5, supra.11 NRC at 409.
l'In sER supplement No. 2, the sisfr described the Hartman allegations as having only " historical significance." sER, supp. No. 2 (stafr Exhibit 13), at 10. The stafr has recently recanted on this point and now says only that hcensee's actions in response to the allegations were adequate. NRC staff's Com-ments on the Analysis of the GPU v. BAw Transenpt, supra, at 3 n.5.
Y%
20 Neither hcensee nor the stafrargues that intervenors have failed to meet their burden on this point.
21 At the same time, the Board also stated that its hmited information about the allegations provided "no basis to conclude that irstarr 1(a decision entrusted to the Commission itselnl should not be per-mitted until the DoJ investigation is complete." LBP-81-32, siera.14 NRC at 557 (emphasis added).
189
1 1
its finding of management competence and integrity, because of the ongoing investigation, is tantamount to a determination that considera-tion of the liartman allegations might well have made a difference in the outcome.22 We would agree.
Moreover, we cannot make any final judgment on appeal as to licen-see's management competence and integrity without an adequate record. The 11artman allegations fall within the scope of the issues the Commission has directed be resolved through the hearing process. See pp.188-89, supra. The absence of a materially complete record precludes us from reaching any conclusion on those issues, one way or the other.23 "The Commission's primary commitment
. to a fair and thorough hearing and decision" in this case requires no less than an exploration of flartman's charges at hearing. CLI-79-8,10 NRC 141,147 (1979).2a
- 4. The staffs requ'est that we defer ruling, pending the outcome ofits overall management revalidation review and a separate inquiry by the Office of Investigations (01) specifically into the llartman allegations, does not present a satisfactory alternative. By the staffs own admission, completion of the revalidation review is "'many months away.'" NRC Staffs Memorandum on the Status of its TMI-l Restart Review (July 2!,1983) at 2. The OI investigation of the llartman allegations is es-timated to be complete by December 1983 but, in the staffs view, it may nevertheless be constrained by the pending Grand Jury proceeding.
Id. at 2-3. It is already more than four years since liartman first made his allegations of falsification of leak rate data to NRC inspectors, and three years since this agency halted its investigation and referred the matter to DOJ. One Grand Jury has expired without action, and another is still sitting, with no prospect ofimminent decision.25 In short, by next year we may be exactly where we are today
" square one." Further deferral ofinquiry into a matter clearly within the scope of this adjudica-tory proceeding - to await the outcome of an investigation that should have been undertaken and completed at least three years ago - would I
be unconscionable, as well as contrary to the Commission's expressed i
desire that this proceeding be conducted expeditiously. See CLI-79-8, supra,10 NRC at 147.
1 I
22 For emample. additionalimense conditions might hase been imposed 23 similarly. In another part of this same proceedmg, we reopened the record for suppiemeniation on the assue of decay heat remosal see AL AB 708,16 NRC 177011982).
l 24 We note that the Commission directed the Licensmg Board to "enercise its authoney to seek to ensure that si recenes all information necessar) to a thorough insestigateon and resolution of the ques-tions before it? CLI-79-8 su/wa 10 NRC at 147.
l 25 Apparently the Grand Jury has until spring 1984 when the statute of limitations on the possible i
crimes insolsed empires, su hand doen an indntment Ser letier from J scinio (Depuis Derector. Hear.
eng Dnision. NRC ofnce of E necuine Legal Director) to Appeal Board i August 4.19838 at i 190 l
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l l
O Moreover, recent staff action pursuant to its revalidation effort pro-vides no meaningful substantive basis for abiding the outcome of the various ongoing investigations. In Inspection Report No. 50-289/83-10, the staff discusses the alleged falsification of leak rate data, but notes that it restricted its inquiry into the matter to a review of present and former job titles. No individuals in the TMI-l organization were inter-viewed and no job descriptions or other company records were examined. Consequently, the report includes " findings" based wholly on the stalTs speculation and are thus highly suspect.26 in other circumstances, we are reluctant to interfere with staff reviews and investigations. But here, too much valuable time has been wasted.
Evidence and witnesses' memories are getting state. See Dec55er, note 14, supra,628 F.2d at 1377. It simply is time to move forward on the liartman allegations, as our independent responsibility to protect the public health and safety under the Atomic Energy Act requires. See id.
at 1375,1377,1380; TMI-2, CLI-80-22, supra,1I NRC at 730.
We believe the most fruitful way to achieve this is within the adjudica-tory setting and with the active participation of all parties.2' We also be-lieve that the Licensing Board in this case is better equipped than we to preside over a reopened hearing on the liartman allegations. We there-fore remand the case to that Board for further hea...
on a schedule that permits this matter to be explored and resolved fully and as expeditious-ly as possible. (In the meantime, we will con'i,1ue our consideration of the appeals of other aspects of the management phase of the proceeding.
An order schedulin;; oral argument will be issued soon.)
We entrust the mechanics of the reopened hearing to the Licensing Board's expertise. liowever, our review of the material recently submit-ted to us in connection with the liartman allegations - which the Licensing Board has not yet had an opportunity to scrutinize - prompts us to note several areas that should be pursued at the hearing.
26As only one eaampic. the report notes that the present Manager of Plant Operations at TMI.I may have been aware of TMI-2 leek rate testmg difDculties because he held a dual license to operate both units. It aim notes that he could have been involved in such tesims if he had ever filled m at TMI 2 as a shift supervisor. Without ever internewing that individual (or others m a position to knom) or examm-ing personnel records, the inspectors simply concluded that it was "unkkely" that he had an.* " direct" connection with TMI 2 leak rate testing irregulantees. Inspection Report No. 50-289/83 10. sura at 10-5. 10-6. such conclusory statements create a lack of conGdence in the stafr reuew and certamly pro-wde no reliable basis on whch a decisson of any nature can be based.
27As we have pomted out at note 14. sure, the pendency of the Grand Jury proceedmg does not legally bar parallel admmistrative action. There is also apparently no reason to contmue deferrms to the Jusuce Department on the basis of comity. See C.Tr. 26. Moreover, the Commission has recently adopted a policy statement addressing the relationship of ongoing NRC investiganons and adjudicatory proceedmss that involve the same subject matter. The polry recognizes that both can proceed simultaneously and es-tabhshes procedures to deal with conDects that may anse concernmg the publK disclosure of msestiga-tory information 48 Fed. Reg 36.358 (19831.
191
G
- a. The focus en the Hartman allegations thus far has been on whether new operating procedures are adequate to prevent a recurrence of the problems described by Hartman. See, e.g., SER, Supp. No. 2 (StalT Ex-hibit 13), at 10; C.Tr. 52. The individuals implicated by Hartman's charges, however, should not be overlooked, particularly if they are now employed in connection with TMI-1. Even if they no longer work for licensee or have no duties at TMI-1, these persons are still in a position to shed light on the matter.28
- b. The Faegre & Benson Report includes a fairly comprehensive technical analysis of the leak rate problem, and we assume it will be of-fered into evidence.M The report seems to show that oscillations and lack of control of plant parameters existed for approximately a year and may have been a significant cause of the operators' alleged inability to obtain consistent leak rate data. See generally Faegre & Benson Report, Vol. Two, at 93-107.M Because ofits limited scope, however, the report does not contain any meaningful information about management efforts to identify and correct the oscillation problem.33 We believe it would be useful to obtain such information, because the ability to operate a plant without substantial oscillations in vital plant parameters bears on management competence.32 Thus. Hartman's allegations raise questions about not only management integrity, but also management willingness and ability to resolve important operational deficiencies.
28 Among the specific questions to ask are: Did the incidents desenbed by Hartman in fact occur? If so, who knew ? bout them? Who authonzed them? Who looked the other way? Did the operators and any other individuals involved assume their actions were acceptable oxrstmg procedures? on the other hand, did they assume otherwise and hope they would not get caught or be repnmanded?
M Because a number of key plant personnel dechned requests for mierviews. the report does not include an analysis of possible management involvement in the falss6calson ofleak rate data. Faegre & Benson Report, vol. One, at 13.
M Another factor that seems to account for the asserted difGculty in getting a " good" leak rate at TMI-2 is the one gpm umdentined leakage technical specification hmit itself. Because the leakage pathways at the two umas are classified differently, the TMl-2 hmet is more stnngent than that for TMl-1 and cu-nously does not allow for evaporative losses. See at. vol. Two, at 14-16.
31 several of Hartman's statements include references to a supervisor's general somment that peopic were " working on" the leak rate data problems of concern to Hartman. Sec. e z. Bd W inal Tr 7056, 7058.
32 The Faegre A Benson Report, Vol one. at 57 reaches the same conclusion We recognize that hcensee "has instituted major organizational and stafrms changes in order to pro-vide additional safety review and operational advice regarding TMI-I." LBP 81-32. suswa.14 NRC a' 519. See rencro'I d at $19-28, 558-63. Presumably, the new procedures are designed to detect and f
remedy problems such as substantial oscillations in plant parameters. Our eeview of the pending appeals will consider the adequacy of these changes. But m order to achieve a complete heanns on the Hartman aHegations, we beheve it is also necessary to reopen to enamme management's speciGc response to all aspects of the leak rate data problem raised t y Hartman.
192
O
- ---e B.
The Aamodts' carlier motion to reopen concerns the May 1982 discov-cry of unattended radiation worker examinations and answer keys,
~
revealed in Board Notification BN-82-84 and Inspection Report No.
50-289/82-07. See p.181, supra. The motion itself is timely, as both the staff and licensee concede. We agree with them, however, that this new information is neither significant nor likely to have affected the Licens-ing Board's decision. We therefore deny the motion.
The motion contains rather generalized complaints about management integrity. It refers to portions of the Special Master's report and the Licensing Board's subsequent partial initial decision in the reopened hearing on cheating. The referenced material concerns the Aamodis' car-lier allegations of cheating on radiation worker permit tests. The Aamodts' only witness in support of these allegations was found by both the Special Master and the Licensing Board to be not credible, and thus the allegations, not proven. LBP-82-34B,15 NRC 918,988-89 (1982);
LBP-82-56, supra,16 NRC at 333. Our attention has been directed to nothing that casts doubt on these judgments.
In supplemental comments submitted after oral argument on the motion, the Aamodts refer to a March 17,1982, Notice of Violation con-cerning unauthorized entry to a high radiation area at TMI-1. Even if this information had been provided in a timely manner, the Aamodts have failed to establish a specific nexus between the subject of that notice and the unattended examinations and. answer keys discussed in BN-82-84.33 The inspection report itself also provides no basis for granting the motion. Although there were two instances.in three days of examina-tions being left unattended, the report concludes that this was apparently "an isolated incident attributable to a single individual's practices."
Several corrective measures were undertaken, including use of new examinations, storage of copies in locked containers when not in tse, and reprimand of the involved supervisor.34 These actions were de-scribed in an internal TMI memorandum within about two weeks of the 33Although the notice was made public in April 1982. before the incidents on which the Aamodts base their request to reopen. the information was thus also available well before the Aamodts filed this motion to reopen.
We also note that a May 4,1982. letter from H. Hukill (Director. TMI l) to R. Haynes (NRC Region i Administrator) described the various corrective actions taken tn licensee in response to the notice.
34 Licensee elaborates on the corrective action and informs us that this mdividual later resigned. Licen-see Answer to Aamodt Mouon (september 20,1982) at 3-4. 8 9, We remmd hcensee that information of this nature is more properly provided in affidavit form.
193 i
9 initial incident. Based on a review of all these measures, the NRC inspector determined that no further action (including a formal Notice of Violation) was necessary. Inspection Report No. 50-289/82-07, supra,
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at 17. We have no reason to conclude otherwise.
We reject the Aamodts' claim that these incidents show licensee's in-ability to prevent a compromise ofits training and testing program. On the contrary, we believe that the series of events described in Inspection Report No. 50-289/82-07 is evidence that the system is working. Irregu-larities were discovered by licensee itself and promptly corrected. This is fully consistent with the evidence presented to the Special Master by Dr.
Robert L. Long, now Vice President of Nuclear Assurance for licensee.
His testimony was that " specific methods
. for ensuring that exams are secured" would be provided; his stalT would "take measures to pro-tect the efficacy of the exams [they] administer"; cheating and similar misconduct is to be reported promptly and will result in appropriate dis-ciplinary action by responsible management; and GPU Nuclear requires
" strict compliance" with these policies. Long, fol. Tr. 24,925, at 25-28.
Licensee did not promise that problems of this nature would never occur, nor could it. Where there is human involvement, it is not possible to speak in absolutes.
As for the Aamodts' charge that both the staff and licensee unduly withheld information concerning this matter, we disagree. The incidents themselves and licensee's corrective action were disclosed within days by licensee to the staff during a routine inspection conducted May ll-June 8,1982. The inspection report is dated July 1 and was placed in the public docket rooms (including Harrisburg) on July 22. The Board Notification was issued to us and the parties on August 17. Although we frequently remind the stafT of its obligation to issue board notifications as promptly cs possible, we do not regard the time lapses set out above as unreasonable, given inherent bureaucratic delays and the nature of the matter involved.35 l
C.
The Aamodts' second motion seeks reopening for hearing on four matters in addition to the Hartman allegations already discussed above.
We deny the motion on all four counts.
35 Our judgment on this motion should not be perceived as reflecting our uees on licensee's overall training program or on the cheating anquiry. Those matters will be taken up in our conssderation of the w,
ments or the pending appeals.
194
O
- 1. The Aamodts contend that a 1978 in-house management audit at
" ' ~ ~
Thil, an exhibit at the Bd W trial, consti' '.ts "new and exceedingly ger-mane" evidence. Aamodt.. hiotions to Reopen, supra, at 8. Of particu-lar relevance, in intervenors' view, is the audit's discussion of training deficiencies. Both the staff and licensee point out that this audit was made available to all parties during prehearing discovery in h1 arch 1980.
NRC Stafi's Answer to Aamodt's hiotion, supra. at 8; Licensee's Reply to Aamodts' Motion, supra, at 7. It therefore does not constitute new evidence and the Aamodts aae unjustifiably late in seeking reopening on this basis. Moreover, the significance of the audit to this proceeding is not apparent. Its findings do suggest much room for improvement in TMI management in 1978. But as a result of the accident at Unit 2 and the extensive hearings be. low, licensee's present management and train-ing program are substantially different from that in 1978. See LBP-81-32, supra,14 NRC at 403 79." The Aamodts fail to explain how consideration now of this report - critical of a management organization that no longer exists - might affect the outcome of this proceeding.
- 2. The Aamodts suggest that certain comments made by the judge presiding at the Bd W trial are new evidence, casting what they consider to be further doubt on the credibility of Robert Arnold, president of GPU Nuclear. Aamodt.. Motions to Reopen, supra, at 9,10. We reject the notion, however, that these comments - even if accurately stated by the Aamodts - might have some bearing on the resolution of this case.5' Arnold testified extensively before the Special Master and Licensing Board, and thus both had the opportunity to observe his demeanor and weigh the credibility of his testimony given in this very proceeding. The Licensing Board's ultimate judgment on this score is a matter to be taken up when we consider the intervenors' pending appeals. In this circumstance, we believe that it would be inappropriate to give weight to the comments of a judge during trial in a different proceeding, involving difTerent parties and issues, particularly when that litigation ended in a stipulated settlement before the judge heard all the evidence and issued a formal opinion.
- 3. The Bd W trial record, in the Aamodts' view, establishes the supe-rior technical resources of B&W. Although it is unclear exactly what the M in affidavits attached to the staffs reply to the motion, three stafr witnesses aver that they hase reviewed the 1978 audit and that it would not alter their previous testimony on present TMI management. Affidavits of Lawrence P. Crocker (May 5.1983) Frederick R. Allenspach (May 4 1983). and Richard R. Keimig (May 5.1983). attached to NRC staffs Answer to Aamodi s Motion, supra.
37 We have reviewed the BJ W inal transcnpt pages cited by the Aamodts (Tr. 1555. 1690-99. 1741' and do not fully agree with their characterization of the judge's remarks 195
O new and signilicant evidence undergirding their motion is, the Aamodts assert that it could lead to a more adequate resolution of the deliciencies in training explored at the hearing below. Their apparent view is that B&W, rather than licensee and the NRC, should bear principal responsi-bility for training and testing at TMI.
We agree with licensee and the stalT that the Aamodts hase providcd no basis for reopening the record on this point. In the first place, licensee concedes that B&W's espertise in certain areas is superior to its own and notes that extensive testimony was adduced below concerning B&W's participation in various aspects of licensec's training program. Licensee's Reply to Aamodis' Motion, wera, at 10. The staff emphasi/cs that, while the NRC encourages the use of sendor personnel in training, it is not required, inasmuch as the nuclear steam supply system sendor typi-cally cannot prmide all necessary information on pLmt components sup-plied by other manufacturers. Ultimately, the utility, as the holder of an NRC license, must bear principal responsibility for operation and thus training.17urther, the NRC cannot legally delegate its operator licensing authority to a prisate company like ll&W. See Allidasil of Bruce A.
Iloger (May 12, 1983), attached to NRC Staffs Answer to Aamodt's Motion, wpra. The information on B&W's superior resources that the Aamodts seek to admit into the record would not alter any of these factors.
- 4. According to the Aamodts, the BJ li' trial record " calls into ques-tion the lloard's decision that the operators were able to handle emer-gencies with no undue risk to the public." Aamodt Motion to Reopen Record, wpra, at 13. They claim that comments by GPU counsel at the #d il' trial show that various stresses in the control room will reduce the operators' ability to cope during an emergency, contrary to the Licensing Board's findings. See L B P-81 -3 2,.wpra. 14 N R C a t 474-75. The Aamodis urge the establishment of an offsite decision center with remote readout capability from the control room as a means of ameliorating this situation.
The comments of counsel upon which the Aamodts rely constitute no new or significant information concerning operator ability to act in an emergency. That an emergency will create a certain amount of stress in the control room is neither a reselation nor a matter that can be elim-inated entirely. The Licensing Board fully considered it and concluded that licensee has " consciously factored [thisl in!o its program for prepa-ration of operators" and has undertaken sullicient measures "to allesiate or minimi/c the potential for stress in operators under critical sit ua tions. M. at 475. The cited portions of the BJ li' trial transcript iTr. 33,65,79,8m do not undermine this linding. As for the Aamodt3' 196
O suggestion of a fully equipped olTsite decision center, the stafT expects licensee's onsite Technical Support Center and olTsite Emergency Opera-tions Facility to have computer terminals displaying all critical plant parameters following the first refueling outage after restart (if authorized). Afndavit of Falk Kantor (May 12,1983) at 3, attached to NRC StalTs Answer to Aumodt's Motion, supra. Whether this should be a prerequisite to restart is a matter for the Commission to decide in the course ofits "immediate elTectiveness" review.
D.
As discussed earlier (see pp.182 83, supra). TMI A's motion seeks reopening on, in addition to the Hartman allegations, the following four "open" items in the stalTs revalidation elTort: statements in the Bdli' trial record; the Parks and King allegations of retaliation against whis-tieblowers at the TMI-2 cleanup operation; concerns raised by the recent BETA and RllR management audits; and the timeliness of licensee's submission of the 13 ETA and RilR Reports and other documents.)" We agree with the stalT; hat it is premature to reopen the record at this point for further hearing on any of these four items. As explained in greater detail below. TMIA has failed to call to our attention anything so far that might have made a dilTerence in the Licensing Board's decision.
Moreover, the sta!T review in each instance (including that of 01) is still under way and may yet disclose other related information that does war-rant further hearing." If that proves to be the case, intervenors may then seek again to satisfy the Diablo Canyon criteria for reopening.
' 8 We assume that among the "oihcr do(uments" that the staff is considerms an this regard as the Facgre & Benvm Report. daied scpicmher 1980 but not submitted to the stalT. parines. or any adjudwa-sory board until sprmg 19N3 M Scr. r jr. Board Noiifnation H483-il7 t August 4.1983) where the stali adsnes us that ceriam documents uncoscred durmy i:s retice of she SJ 44 record relate 10 present m.indbement's role m re.
spondmg to the TMI 2 annient and thus may be relegant 10 the resolution of luue 410) The matter is bems referred to 01 for msesuganon in ihn connecticn. me dnamgunh the stales sult ongomg reuce of the Hariman allegations As es-plamed ahnse, acierral of our ruhng on the motion and of further hearmg es noi sainiactor), gaten the aircady protracied delan in that msesugation The four items dmuwed here are of convderably more rennt untage and me are thus more amenabic to Ictung the snailcompicie its reuce TMl A mntakenly beheses that permiumg lhe star to adssse us of its esaluation of these open swues consututes an improper es parte communwauon TMI A Monon in Reopen the Record iMay 23.1983) at 6 in the first pl. ice, the resulas of sush staff reuems are communwaied in the adiudecator) hoards through pubbe filmys scrsed on all parues Any party is free 10 seek reopenmg for other appmpriate rehen on the b.nn of the ncely dmiosed informanon There n noihms es parte or oihermne unlaine of a pariy's heanng rights about that Marcoscr. all paruct erkludir y the stan. are oN,xrd to brms any segmficant nem mformanon lo the boards' aliennon Tem #rsur Islin dur/wwsn 4 Bromns Ferry Nucicar Plani. Units 1. 2 and 36. AL AB-677,15 NRC 4 387.1394 419821 4
l 197 l
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This is not to say that the four matters on which TMIA bases its motion to reopen are unimportant. For example, reprisals against whistleblower-emrloyees - if they are proven and if a nexus to TMI-l management is suggested - certainly reflect negatively on management integrity and would provide a basis for further exploration. See Board Notification BN-83-46 (April 11,1983)."The untimely provision of sig-nificant information is also an important measure of a licensee's character, particularly if it is found to constitute a " material false statement." See Virginia Electric and Power Co. (North Anna Power Station, Units I and 2), CLI-76-22,4 NRC 480,488-93 (1976).
As for the BETA and RilR Reports, we agree with TMIA that some portions of each are critical of TMI management. But other selective ex-cerpts reflect favorably upon licensee. Significantly, the specific focus of the BETA Report is on ways to cut costs and improve the efficiency of operations, not on safety matters. BETA Report at 1. A follow-up letter from the principal author of the BETA Report, William Wegner (provided to the parties and us at the same time as the report), stresses this fact and explains the relationship of the report to testimony he gave before the Licensing Board in 1981.
[T]he latest BETA review did not address the same issues las the 1980 review) even though many of the same functional areas were reviewed. The predictive nature of my 1981 testimony was in almost all cases fully substantiated by the 1982 review.
Where expectations fell short it was in the area of elTiciency rather than matters relating to safety or competence.
Letter from W. Wegner to R. Arnold (May 13,1983) at 4. See generally Wegner, fol. Tr.13,284. A co-author of the RHR Report on operator attitudes states that his work represents only the initial stage of a much larger consulting activity and is "one-sided." The survey and resulting data, which combined TMI and another licensee facility (Oyster Creek),
were not designed to address management integrity directly, and he ac-knowledges that some questions and their responses may have been confusing. Letter from P. D'Arcy to R. Arnold (May 13,1983). Given the limitations in both reports and - more important - the fact that the ground covered therein (including the criticisms) was well traversed at the hearing below, we are unable to conclude that any of the matter
- We note that one of the alleged whistleblowers. Parks, is actually an employee of Bechtel (the princi-pai contractor for the TMI 2 cleanup operation) and recently reached a settlement of his complaint Sec Preliminary Notification of Eient PNo-TMI-83 06 Ouly 27.1983). one or TMIA's other bases for reopenmg is an earher Department of Labor finding in favor of Parks. Presumably this is a rr.atter it st the pending 01 investigation will take snio account, along with Labor's disposition of the King complaint We understand that the latier mas initially denied and is now on appeal withm that agency.
198
O called to our attention might hase made a dilTerence in the Licensing Board's decision. Further, we would not want to discourage an) licensec from undertaking such reviews of its management and operations (and disclosing their results) for fear of reopening a closed record. Our perusal of the BETA Report, in particular, shows it to be an extremely useful document, upon which licensee can rely to improve its operation oserall.
The other three bases on which TN11 A's motion rests also fail to sup-port reopening of the record. First, we are inclined to agree with TMI A that inspection Report No. 50-289/83-10 is not a scry credible document. See p.191, 3upru. But so far that document is not in esidence and thus its credibility is not in issue. If the document is introduced into evidence at the reopened hearing, TMI A is, of course, free to challenge and discredit it at that time. Similarly, the credibility of the Stello Report on the Bif tl' trial (3cc p.184, supra) is also not at issue here.
Morcover, the Commission itself has requested the more thorough review of the Btill' record now under way, essentially mooting the ade-quacy of the Stello Report as an issue. Finally, TMIA's references to allegations by whistleblowers other than Parks and King are completely undocumented.
In conclusion, the motions of the Aamodts and TMI A arc granted in-sofar as they seek reopening of the record for further hearing on the liartman allegations. We remand this matter to the Licensing Board for hearing consistent with the views expressed in this opinion. Otherwise, the motions to reopen are denied.
It is so ORDERED.
FOR Tile APPEAL BOARD C. Jean Shoemaker
$ccretary to the Appeal Board 199 f
O U
F-
^
Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter, ' Chairman Robert M. Lazo, *Vice Chairman (Executive)
Frederick J. Shon, 'Vice Chairman (Technical)
Members Dr. George C. Anderson Andrew C. Goodhope Dr. M. Stanley Uvingston Charles Bechhoefer' Herbert Grot.wn' 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 Dr. A. Dixon Callihan Emeet 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 Ehzabeth B. Johnson Dr. Paul W. Purdom Valentine B. Deele Dr. Walter H. Jorden Dr. David R. Schink Dr. Donald P. de Sylva James L. Kelley*
hran W. Smith' Dr. Mchael A. Duggan Jerry R. Kline*
Dr. Martin J. Steindler Dr. George A. Ferguson Dr. James C. Lamb lil Dr. Quentin J. Stober Dr. Harry Foremen James A. Laurenson*
Seymour Wenner Richard F. Foster Gustavo A. Linenberger*
John F. Wolf John H Frye lin' Dr. Linda W. Uttle Sheldon J. Wolfe' James P. Gleeson
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e L
'hwmenent panelmembers 5
I O
Cite as 18 NRC 201 (1983)
LBP 83 44 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
[
ATOMIC SAFETY AND LICENSING BOARD i
Befote Administrative Judges:
Peter B. Bloch, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shon i
in the Matter of Docket No. 50-155 (Spent Fuel Pool Amendment) l l
CONSUMERS POWER COMPANY I
(Big Rock Point Plant)
August 1,1983 l
The Licensing Board determines that applicant has complied with the Board's earlier initial decision (LBP-82-77,16 NRC 1096 (1982)) con-cerning emergency planning. The Board also decides that it is not neces-l sary to conduct a hearing before making this determination.
EMERGENCY PLANNING Applicant satisfied the Board that it had demonstrated sullicient compliance with the applicable emergency planning requirements of the Commission for the purpose of a proceeding concerning a license amendment to expand a spent fuel pool.
RULES OF PRACTICE: ilEARING ON COMPLIANCE WITil BOARD ORDER A hearing is not required to determine whether applicant has complied with a Board order if the written submissions fail to raise any serious deficiencies that the Board might remedy. Considering the 201
circumstances, a hearing is very unlikely to be productive and need not be held.
TECIINICAL ISSUES DISCUSSED Radiclogical training Transporta' ion of people without access to personal vehicles Evacuation for schoolchildren Compilation of a list ofinvalids.
SUPPLEMENTARY INITIAL DECISION (Compliance with Emergency Planning Initial Decision)
On September 14, 1982, the Atomic Safety and Licensing Board issued an initial decision' sustaining several emergency planning subcon-tentions of Christa-htaria, et al. (Christa-blaria) and finding that Consumers Power Company (applicant) had not complied with certain aspects of the Commission's rules governing emergency planning.
In Glings of December 3 and 17,1982, and of January 7 and 21,1983, applicant has attempted to demonstrate its compliance with our decision.
Its Glings include nine afGdavits and a report prepared by Stone & Web-ster Engineering Corporation (Stone & Webster).
The Federal Emergency hianagement Agency (FEh1A) has found that applicant has complied with our decision;2 however, Christa-htaria and John O'Neill challenge that conclusion and seek an evidentiary hear-ing concerning compliance.
We have concluded that there are no serious deGeiencies in applicant's elTorts to comply with our decision. Compliance has been in good faith and the plan is greatly improved over its former state. Consequently, al-though FEh1A continues to be responsible for assuring compliance with the emergency planning requirements, we can no longer justify our con-tinued assertion ofjurisdiction.'
8 t.BP-82 77,16 NRC 109611982) at 10971104.1105 2 The compicie F E M A films n attuhed to a staff rihng or July 15.1983 3 our mitial awruon of junsdntion rested on a findmg of 'the posubeht, or occurrence of improbable modents"il the license amendment mere granted. LBP-82-32,15 NRC 874 (1982) at 881 Although ap-phcant's respong may hase sausried the standard apphcable m an operating beense proseedmg. me hase not apphed that standard our authoni) relates to the pendmg amendment apphcanon Our concern is that apphcant demonstrate sufficient tomphance enh the emergency planmns regulations so that the granimg or the hcenw amendment mill not adserwly allect pubbc safety.
e 202 M
O in this decision, we review each of the deficiencies found in our previ-ous initial decision and the responses of the parties. The deficiencies, which we will discuss, are that applicant had not demonstrated:
(a) the adequacy of radiological training of local and school omcials, includ-ing school bus drivers, (b) that evacuation plans provide adequately for the transportation of people who do not have access to private vehicles, (c) the adequacy of evacuation means for schoolchildren, and (d) the ad-equacy of the list ofinvalids that omcials have compiled so that they can provide evacuation assistance.
I.
RADIOLOGICAL TRAINING Our finding was that applicant had failed to determine the extent of the need for radiological training of local omcials or school omcials or to show that the need is being met in a satisfactory fashion by the combined efforts of applicant and state and local governments. Applicant's re-sponse included amdavits from Lt. James M. Tyler, Commanding Olli-cer of the Pre-Disaster Services Section of the Emergency Management Division of the Michigan State Police, and from Mr. Est! Muma, Emergency Services Director / Coordinator for Charlevoix County, Michigan.
Mr. Tyler's Affidavit demonstrates that "the Pre-Disaster Services Section has developed a comprehensive training program for all support groups who will have responsibilities during a radiological emergency.
."' It also documents an impressive list of activities that have helped to train the people who would have primary responsibilities during an emergency.5 This training even includes an annual briefing session for the press.* There is no reason to question the contents of the training.'
Mr. Muma's Affidavit demonstrates that there has been a successful training session for school bus drivers.' It also establishes that as of December 1,1982 there were plans to train the other local emergency response personnel thought to require radiological training.'
Subsequently, as we learned in an untimely filing by Christa Maria, Mr. Muma has changed his mind abot t the financing available to permit
- Tyler Affidavit at 12. Exhitnt C to that afndavit hsis support groups utentified as needing traimns Tyler Afratavit at 14.
5 /d at 7-11.
6 /d at i1.
7 The contents are set forth in Tyler Aindavit at 12-14.
8Muma Afridavet at 5 8.
'IJ at 8-9 e
203 l
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him to fulGli his responsibilities. Since this subsequent afGdavit repre-sents a clarification of previous testimony, we will consider it even though it is untimely. Ilowever, we do not consider this deGeiency su!G-ciently serious for us to retain jurisdiction in this license amendment case. Now that there is a plan calling for training and for other local action, ofGcis!s are pware of what would be required to meet the needs identiGed in the plans. A subsiantial portion of those needs base already been met. Although it is hard for local governments to Gnd the money to meet the additional needs, it may well be that this shortage of funds will trove to be temporary. If not, it is FEM A's continuing responsibility to'see that the emergency planning responsibilities are adequately irnplemented.
Admittedly, FEM A's conduct in this case has not inspired complete public confidence. Previous to the Board's findings that there were several offsite emergency planning deGeiencies, FEM A had not identi-Ged any serious deGeiencies. Then, in analyzing applicant's response to our Order, in which we found severd serious deficiencies. FENI A completed a reasoned analysis. }{nwever, FEM A did not address interve-nors' filings until it was requested to do so. Even after FENI A was requested to review the comments of intervenors, whose knowledge of local circumstances might have assisted FEMA, its written explanation of its review was conclusory, not bothering to provide reasons for sum-marily rejecting each of the comments of the intervenors."
We are hopeful that FEM A will fulGil its responsibilities for assuring the adequacy of offsite emergency planning after we have renounced jurisdiction. In particular, we trust that FEM A will realize the importance of providing reasoned responses to the concerns of informed people.
The process of providing reasons often prove; useful in clarifying the mind and improving decisions. It also helps to fulGil people's expectation that their government hears their problems and responds to them in a rea ined fashion.
'OMuma Aindavit, attached to Christa. Marts letter of July 3.1983, ai 12 13 Mr. Dan Bement's letier or May 19. If,83. lor r E M A. does not appear to address an> 01 the interse.
nor's comments direcity, merely biating the concluvon that "the intersenors hwl reply. {hasl been reviewed" and that FEM A realTirms its earher sonclusions. fasorable so the emergerk) rian Mr Bement does not address or provide reasons for disresarding suih years somments as numerous Inensed day ure facilaSes have not been included ;n the plans and hate esacuation needs.' that the rien for loadmg school buses to 1205 of capaaiy leaves too little neubilii). thal drners from surround-ing school diuricts are not trained and that no money is auttable to tram them, that Charleson Count) has run out of money for traming. that plans for esacuaison of hospei41 peitents are inadequaic, ihai Iran-s#ents are inadequately provided for, that the Charlesoin Couni) Hospital sannot be um' oc64uw #1 is within the emergeno planning tone, and that certain esasuasion routes are ernproper.
204
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II. ASSISTING PERSONS WITHOUT VElllCLES We found that applicant failed to determine the extent of the need for transportation of persons who lack personal vehicles or to demonstrate that the need is being met in a satisfactory fashion by the combined ef-forts of applicant and state and local governments.
Applicant has persuaded us that it is new doing an excellent job on this aspect of its emergency planning responsibilities. There has been substantial advertising to obtain names ofinvalids,'2 an appeal for names of invalids was made in the emergency planning booklet," and knowl-cdgeable citizens have cooperated in compiling these lists. Local insti, tutions that care for those unable to provide their own transportation
,~
have.been consulted." Plans have been made to evacuate Charlevoix liospital. The Director of Personal licalth Services for District Ilealth f
Department No. 3, which runs a liome Health Program that includes s
hospital post-care, has developed a reasonable procedure for identifying
~N people who are temporarily incapacitated." The Charlevoix Ministerial
~
Association has been requested to help in identifying people in need of A transportation, and its cooperation is expected to be obtained.
We also are convinced that the rather unusual, jitney-type transporta-fjon system provided by the Charlevoix County Public Tranrportation System places that system in an excellent position to transport invalids, who are already an important part of their constitaency." This system is equipped to handle wheelchairs and regularly provides on-demand serv-s K
ice to people who call to request transportation.28
~
Although plans for the evacuation of schoolchildren require intensive use of all available transportation, we ' consider the provisions to be adequate. It makes sense to us that school buses be utilized at 120% or more of rated capacity during an emergency;28 otherwise, the public s.
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12 Amdavit of George Thomas Lascer (attached to apphcant's December 3.1982 Ghng) at 3,5.
u 14. at 4.
1414. at 3. District Health Department No. 3 and Art saworski, who is Director of the Charlevois County Commission on Aging. have been consulted. Further Amdavit of George Thomas Lasater (attached to apphcant's fihns of December 17,1982) at 7 8.
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M Further Amdavit or George Thomas Lasater (attached so apphcant's fihng of December 17,1982) at 2-7. County jail inmates can be moved in an emergency. stone & Webster Engmeenns Corp.'s report.
identgficarson and Analysa of rk Transportaren-Dependent Popukten svahm the he-Mar Plume Lusmsure
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Pathmey Emergemy Pkenmg Zone ofihr Bq Rock Pomt Nucirar Pknr Uanuary 1. I983 submisseo. ).
16 Afridsvit of Roger W. smderman (anached to applicant's January 21,1983 fihng) at 3.
17 Amdavit of Frances Hooper (atuched to applicant's December 17,1982 fihng) at 2-5.
m 18 Further Amdavit orGeorge Thomas Lasater at 8 9.
Amdavit of Art saworski (attached to applicant's December 3,1982 fihng) passem.
20 jg.
. N 21 Afndavit of Vincent R. olach (attached to apphcant's December it,1982 fihng) at 2-8.
g
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school system would need to divert precious school funds to purchase 20% more bus capacity in order to prepare for an event that is highly un-likely ever to occur. Even if the school absenteeism rate were 3% (a con-servative assumption used in applicant's estimate) the students would be accommodated with less overcrowding than aduits generally cr. peri-ence when commuting on metropolitan-area bus systems throughout the nation.
We are impressed by the quality of the Stone & Webster Engineering Corp.'s report, Identdication anditnalysis of the Transportation-Dependent Pop::!ation Within the Fisc-A!ll. Pliime Erpusiere l'auhway Emcoxcmy Pian-ning Zone of the Big Rock Point Nuclear Plant (January 7,1983 submission). That report helped to identify some emergency planning deliciencies and to suggest ways of remedying those deliciencies. Appli-cant has dernonstrated that these deliciencies are being addressed rea-sonably and 00iciently, by joint elTorts of the applicant and responsible local agencies.12 Although we agree with Christa-Maria and John O'Neill about the in-adequacy of a newsletter notification to parents about plans to evacuate their children in an emergency, we do not consider this to be a serious deficiency. Given the remoteness of the need for an evacuation. any cur-m'-
rent notice to parents is likely to be overlooked or forgotten. The time to inform parents is during the emergency itself, should one occur. We are confident that appropriate messages will be broadcast at the time of the event so th?t parents will know where to meet their children."
Applicant has demonstrated its compliance with regulatory provisions concerning transportation of persons who lack personal vehicles.
III. AVAILABILITY OF SCilOOL BUS DRIVERS We held that applicant had failed to show that there is a satisfactory method for alerting school bus drivers who are not on duty or that such bus drivers have agreed to perform emergency transportation duties when they are not on duty.
22 AlTid.svis of Roger w. Sinderman (aituhed to appin.inti January 21. 198.1 Gling) pmum % e do not agree with John O'NeillN charxterstation or apptwanes program, that "to slepend uten poor people to idently themsches b not enough..
- IRepixement Gleng for telet'at Mar 6h 14.14X.1 i Losal gosern.
ments are using many means to find peoric that do not rely on their identif ung themsches % e tonwler
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these means to be tc.nonJblC.
23 The resord does not appear so show that such a mcwge a planned, but oc are sonfident that if plans have not aircady been made that the need lor suth a mewge n so obsious and that approprute plans mill be made.
206
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2
O F -
. 3 11 is FEM A's conclusion that the fan-out system of notification of off-pIf(@{
duty bus drivers is not wholly satisfactory because it does not make pro-s vision for an alternate call if a person in the network does not answer.
>,f (
However, we expect that the responsible ollicials will remedy this prob-
~
Icm now that it has been pointed out; therefore, we do not consider this to be a serious deliciency.
We also have some concern about the plans to notify bus drivers who are en route during the declaration of an emergency. We agree with FEM A that merely telling the drivers to report to the bus garage with a partial load is not adequate. During the morning rush hour, this could leave some school age children at home without their parents.
Consequently, more complete directions should be given to the drivers.
We suggest that, unless time is extremely short (as is unlikely), they should complete their routes, picking up children who do not hase other means of transportation. In the afternoon, consideration should also be given to having them completc their routes, dropping oft those children for whom adults with transportation are available. We are confident that the governments, with aid from FEM A, will find a satisfactory resolution of these questions, which we therefore do not consider serious.
We also are satisfied that bus drivers generally will be available, for reasons given to us by Mr. Olach, who allirmed that he knows each of the bus drivers personally and has confidence that they place a very high value on seeing to the safety of the children.2' Because we can imagine an accident so severe that it would tax the mettle of our most courageous citizens, we understand intervenors' concerns that these bus drivers could not be counted on in an emergency. However, the rapidly unfold-ing worst-case scenario feared by intervenors is a kind of emergency that is highly unlikely to occur and is not the kind of event in which an emergency plan could ever be expected to work well. Emergency plan-ning is a last-resort measure, prepared for the purpose of protecting people if all the other safety precautions have failed.
We think tiie pian for busing children is well conceived. It is likely to perform its function best in the kind of slowly unfolding scenario that is most likely to occur; but it is also reasonably well suited to a worst-case scenario, where it would help the surrounding communities to do their best in a time of adversity. The plans for assuring the availability of school bus drivers are adequate.
24 Olath Aflidawn mi 8 9. FEM A Memorandum of March 3,1983 tait *hed to statT tilms or July 15.
1983 6 as Defic ency "C ' twe mould aivreciaic hawms dll pages numbered m filmgs unh this Board )
2' Oiuh Aflidawet ai 11 12.
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IV. TRANSPORTATION FOR SCHOOLCHILDREN Our order questioned the adequacy of transportation for schoolchildren. Since people are particularly concerned abon' 3._
schoolchildren, we thought it appropriate to single out this deficiency.
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However, transportation for schoolchildren is only one aspect of trans-portation for people who lack their own vehicles; consequently, we have already discussed this subject under the portion of our decision dealing with the more encompassing deficiency. Applicants have satisfied us about provisions made to transport schoolchildren.
V.
ADEQUATE LIST OF INVALIDS This subject has been discussed in the portion of our decision dealing with transportation for people who lack their own vehicles. Applicants have satisfied us that measures being taken to compile this list are adequate.
VI. USE OF EMERGENCY BUS ROUTES We found that there was insufficient evidence for us to oc satisfied by the method by which emergency bus routes would be established or about how bus drivers would be able to drive routes they never have seen before. However, applicant has demonstrated that the jitney type public transportation is used to providing on-demand service, so its driv-ers have demonstrated that they do not need pre established routes.26 The Boyne Falls school system has offered back up support in the case of an emerg:ncy. Although plans have been made to train these drivers, including orientation in emergehey routes, the apparent shortage of local funds makes the availability of this training uncertain.27 Al-though we do not consider this a serious safety issue, we are hopeful that ways will be found to train these reserve bus drivers properly.
VII. HEARING RIGHTS In a letter of May 4,1983, Christa-Maria maintained that it was en-titled to a hearing on the adequacy of applicant's response to the Board's 26 AfTedevit or An saworski (attached to applicant's December 3.1982 rahng) possam 21 Chnsta-Maria rihng or March 14.1983 at 3.
208 J
O September 14, 1982 Order. After considering the record before us, we conclude that there are no genuine issues for hearing, that no construc-tive purpose would be served by having a hearing, and that no hearing should be convened. Consequently, we grant applicant's May 3,1983 motion to resolve the matters pending based on the pleadings.
Paragraph (3) of our September 14 Order 28 established the procedure for resolving matters raised by that Order. It gave the intervenors an op-portunity to come forward with reasons why a hearing is needed.
We find that intervenors have come forward with some substantial criticisms of applicant's response. However, we also have concluded that none of those criticisms amounts to a serious deficiency that would re-quire further correction under the jurisdiction of this Board. We note that the issues are rather straightforward. Intervenors are not contending that applicant's expert witnesses could be shown to lack credibility under the pressure of cross-examination; the matters they have testified to are largely matters of fact that can be addressed without the need for cross-examination. Nor do intervenors seek to call witnesses of their own.
ORDER For all the foregoink reasons and based on consideration of the entire i
record in this matter, it is this first day of August 1983,
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ORDERED
- 1. Christa-Maria, et al.'s Contentions 9(2) (insofar as it concerns training),9(4) and 9(5) are dismissed.
- 2. Consuiners Pow' r $ompany is found to have complied with this e
Board's Order of Septernber 14, 1982.
2s 16 NRC at l105.
209
O
- 3. This decision is an initial decision that shall not be appealable until we declare that we are issuing our final initial decision in this case.
Tile ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTR ATIVE JUDGE Dr. Oscar H. Paris ADMINISTR ATIVE JUDGE Mr. Frederick J. Shon ADMINISTR ATIVE JUDGE Bethesda, Maryland
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O Cite as 18 NRC 211 (1983)
LBP-83 44A
-v UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOAPD Before Administrative Judges:
Peter B. Bloch, Chairman Dr. Oscar H. Paris Mr. Frederick J. Shon in the Matter of Docket No. 50-155 (Spent Fuel Pool Amendment)
CONSUMERS POWER COMPANY (Big Rock Point Plant)
August 15,1983 MEMORANDUM (Addendum to Supplementary Initial Decision)
On August 9,1983 Consumers Power Company (applicant) filed a motion stating that our Supplementary initial Decision of August I, 1983 (LBP-83-44,18 NRC 201), apparently had not considered facts supplied by applicant in its filing of April 19, 1983.
l Applicant's inference is correct. Applicant also is correct that the elTect of our oversight is that we did not consider additional material which buttresses our decision that a hearing is not required for Cententions 9(2) (insofar as it concerns training), 9(4) and 9(5). In particular, we did not consider affidavits showing that applicant's compliance with our previous decision on emergency planning was more complete than we believed The additional material related primarily to
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E 211
I i
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applicant's follow-up activities with respect to its Stone & Webster Report, which we discussed in our August I decision.'
There is no need for us to change the Order we issued at the end of i
our Supplemental Initial Decision of August I,1983.
l FOR TiiE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTR ATIVE JU DGE Bethesda, Maryland l
i rN
}
8This new material does not afTect our comment with respect to the need to inform parents, during an emergency, of where they may meet their children By ating this new material with general approsal we do not necessarily agree with each of its conclusions 212
-,,_n_..,
G Cite as 18 NRC 213 (1983)
L8P 83 45 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Merton B. inargy::(,6, Gnairman Ernest E. Hill Dr. Paul W. Purdom in the Matter of Docket No. 50 41G-OL (ASL8P No.83-484 03 OL)
NIAGARA MOHAWK POWER CORPORATION, et al.
(Nine Mlle Point Nuclear Station, Unit 2)
August 4,1983 The Licensing Board rules that no hearing is required in this operating license proceeding.
RULES OF PRACTICE: INTERESTED STAIRS The mere fihng by a state of a petition to participate in an operating license application pursuant to 10 C.F.R. 6 2.715(c) as an interested state is not cause for ordering a hearing. The application can receive a thorough agency review, outside of the hearing process, absent indica-tions of significant controverted matters or serious safety or environ-mental issues.
RULES OF PRACTICE: DISMISSAL OF PROCEEDINGS No hearing is required on an operating license application without a re-quest for a hearing made in accordance with section 189a of the Atomic Energy Act of 1954, as amended, and 10 C.F.R. l 2.714.
213
O MEMORANDUM AND ORDER (Ruling on Need for a Hearing)
PROCEEDING DEVELOPMENTS The Nimlear Regulatory Commission had published in the federal Register of May 13, 1983, a notice that it received an application from the Niagara Power Corporation (Niagara) to operate a boiling water nuclear reactor, located on the southeast shore of Lake Ontario, in the town of Scriba, Oswego County, New York. It directed that requests for a hearing and petitions for leave to intervene in the proceeding be filed by Jane 13,1983.
By order of the Atomic Safety and Licensing Board Panel, this Licens-ing Board was established to rule on petitions for leave to intervene'and requests for hearing in the captioned matter and to conduct the proceed-ing in the event a hearing is ordered.
On June 7,1983, the New York State Energy OfGce filed, pursuant to 10 C.F.R. % 2.715(c), a petition on behalf of the State of New York and its interested agencies to participate in the proceeding as an interested State. Niagara and Nuclear Regulatory Commission Staff (StalD respond-ed on June 22 and June 23,1983, respectively,'and ofTered no objection to the request.
On June 10, 1983, Multiple Intervenors, an uninccrporated associa-tion ofindustrial consumers of electrical energy submitted a petition for leave to intervene indicating support of the project. By response of June 23,1983, Staff contended Multiple Intervenors liad not made the requi-site showing ofinterest and standing nor had it identified specific aspects of the subject proceeding as to which it seeks intervention. Staff recom-mended that the petitiori io intervene be denied unless Petitioner filed an amended petition to cure the alleged defects.
In a response of June 23,1983, Applicant advised it was of the belief Multiple Intervenors would withdraw its petition to eliminate a hearing inasmuch as it favors prompt issuance of the operating license.
On August 1,1983, Multiple Intervenors applied "for permission to withdraw its petition for leave to intervene subject to the condition that it be allowed to apply for late intervention iflate intervention is granted to any other intervenors which properly make application for intervenor l
status." No further elaboration of the request was provided.
What Petitioner in effect wants is that the granting of the petition to withdraw not be with prejudice. It recognizes that any refiling it would undertake must meet the stringent requirements for acceptance of a late-filed petition, as provided for in 10 C.F.R. l 2.714(a)(1).
214 8
n
O Petitioner does not seek anything it is not entitled to under the Com-mission's Rules of Practice. The changed conditions it contemplates
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would permit it to again file a petition for leave to intervene. Whether the petition will be accepted would depend upon the ability of Multiple Intervenors to meet the requirements of the regulation. We grant Peti-tioner's request for permission to withdraw, without prejudice.
This action will in no way prejudice the interests of Applicant or Staff.
~
It will permit the disposing of the application without a hearing which benefits Applicant. Staff already has opposed Multiple Intervenors' participation. Its withdrawal will not be inconsistent with Stafi's position.
TIIE NEED FOR A HEARING The Atomic Energy Act of 1954, as amended, does not prescribe a mandatory hearing for obtaining the operating license which Applicant seeks. Section 189a of the Act provides, "the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person or a party to the proceeding." Section 2.714 of the Code of Federal Regulations sets forth the manner in which a petitioner is to establish before the agency the interest that may be affected. The Commission has held that contempo-raneous judicial concepts should be used to determine whether a peti-tioner has standing to intervene. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units I and 2), CLI-76-27,4 NRC 610 (1976). A petitioner must allege an " injury in fact" which must be within the
" zone ofinterests" protected by the Atomic Energy Act or the National Environmental Policy Act of 1969.
With the withdrawal of the Multiple Intervenors' petition, there is but a single pending petition in the proceeding, that of the New York State Energy Office. It was filed pursuant to 10 C.F.R. ( 2.715(c) which provides, inter alia, that a presiding ofHeer will afford representatives of an interested State, county, municipality, and/or agencies thereof, a rea-sonable opportunity to participate and to introduce evidence, interrogate witnesses, and advise the Commission without requiring the representa-tive to take a position with respect to the issue.
The reason given for the filing of the petition was, "The State of New York has an interest in assuring that all matters pertaining to the safety of this plant aad to the energy, environmental and economic impacts of the issuance of an operating license for this plant are thoroughly considered."
The New York State Energy OfHee did not request a hearing in its petition. In the Stali response of June 23, 1983 to the petition, it was 215 i
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O stated Staff counsel was authorized to report "New York State is not seeking a hearing but seeks to participate in this proceeding only in the event a hearing will be held.
A No basis in fact or law has been provided for holding a hearing in the captioned matter. Nobody has requested a hearing, which is a requisite i
under section 189a of the Act, for one :: be heid. The filmg of the New York State petition under 10 C.F.R. 4 2.715(c) does not ipso. facto trigger the holding of a hearing. See Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36,12 NRC 523, 527 (1980). Furthermore, the state expressly does not seek a hearing. Its interest, that the application l
will be thoroughly considered, is a standard procedure of the agency.
There is no requirement that it be accomplished through the hearing process, absent as here, signmcant controverted matters. Nothing was presented indicating that serious safety or environmental matters are present.
In view of the fact that no request or need has been established for a hearing, it would not be in the public interest to hold one in this uncon-l tested proceeding. To do otherwise would work to defeat the regulatory process.
1 ORDER Upon consideration of all of the foregoing, with alljudges concurring:
It is hereby ORDERED:
- 1. Multiple intervenors' petition to intervene is withdrawn, without prejudice.
- 2. That no hearing be held in this operating license application proceeding, and l
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216 i
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- 3. That necessary findings under applicable statutes and regulations be made by the Staff.
FOR THE ATOMIC SAFETY AND g
LICENSING BOARD Morton B. Margulies, Chairman ADMINISTRATIVE LAW JUDGE Dated at Bethesda. Mary!and, this 4th day of August 1983.
This order is appeatable under the provisions of 10 C.F.R. 4 2.714a the Atomic Safety and Licensing Appeal Board within ten (10) days after service of the Order. See 10 C.F.R. 4 2.710.
217
O Cite as 18 NRC 218 (1983)
LBP 83 46 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION K
ATOMIC CAFETY 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 al.
(Perry Nuclear Power Plant, Units 1 & 2)
August 9,1983 The Licensing Board holds that intervenors did not raise any genuine issue of fact concerning the adequacy of the interim program, adopted by the applicant and required by the staff, for inspecting and maintaining turbines to prevent the generation of missiles. Consequently, summary disposition of the turbine missile issue is granted. The fact that General Electric Company is conducting a study that could alter this conclusion is not grounds for granting a continuance.
RULES OF PRACTICE:
SUMMARY
DISPOSITION Summary aisposition must be granted unless a party demonstrates the existence of a genuine issue of fact by setting forth " specific facts such as would be admissible in evidence." Since an article, not accompanied by a supporting affidavit, would not be admissible in evidence, the article cannot be the ground for establishing the existence of a genuine issue of fact.
218 1
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RULES OF PRACTICE:
SUMMARY
DISPOSITION ing study might produce results helpful E
ngo-disposition. Nor can a continuance be granted when afte summary period of discovery, a party seeks additional time to ob c ent witness.
r TECHNICAL ISSUES DISCUd5ED Turbine missiles (inspection and maintenance)
Ultrasonic tests, turbines Turbine missiles, sisks Overspeed protection system, turbines General Electric nuclear turbines.
MEMORANDUM AND ORDER (Summary Disposition of Turbine Missile issue)
The Staff of the Nuclear Regulatory Commission (staff) summary disposition ofIssue #13, concerning the risk to sa se strike safety-related targets at Perry Nu u
of the unfavorable orientation of the turbines.
It is the staff's view that the probability of generation of tur sites' at Perry may be reduced sufficiently by adequate m mis-inspection of the turbine. The program approved by the st ff protection systems and for detecting stress a
ncludes the intervenors, Ohio Citizens for Responsible Energy (OCRE r of flower Alliance, Inc. (Sunflower), challenge the overspeed nor Sun-rotection 3 Previous litigation has defined a missile as "a hi h object..." Vergmia Eircine and Power Co. (North Anna Nuclear Ps. velocity fragme ALAB-676,15 NRC lil7, till n.2 (1982) (heremarter " North A ower station, Unsis I and 2),
in that case Benerally to be caused either by (1) nna"). A turbine missile was found ing of the turbine due to loss of electnc load or by (2) ia fracture associated with stress cause disc failure at normal turbme operating speeds, as well as under startntergranular stres 2
of Material Facts (Facts).NRC staffs Meten for summary Desposition ofissue N up stress.14. at 1819 20,1130.
Answer in support of NRC stafr Motion for summary Dispo2 (16), 3 (118-9 y.
(Appiscant's Answer) at Afridavit of D P Timo and LH J pnl 1983). Applicant's sanon of Issue No.13. June 24,1983
. ohnson (Appbcant's Affidavit).8 10,11 18.
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O program, which consequently is not at issue. Their challenge is limited to the program for detecting cracks.
We find that the motion for summary disposition should be granted.
Staff's program for inspection and maintenance consists of two parts.
The first, an interim program, contains detailed requirements for period-ic visual, surface and volumetric (ultrasonic) examinations of the turbine disks.2 The staff requires that " Shafts and disks with crack depths near or greater than one-half the critical crack depth are to be repaired or replaced."'
The second part of the program, which is longer term, anticipates possible revision of the interim program in light of studies that the manufacturer (General Electric) is expected to perform concerning mis-site generation probabilities.
It is our conclusion that neither of the intervenors has given us any reason to question the adequacy of the interim maintenance and exami-nation program required by the staff. Since that program will be in effect until applicant demonstrates to the stafT that its studies permit it to adopt its own program, there is no genuine issue of fact concerning the safety of Perry during the time that further analysis is being performed by General Electric. There is no genuine issue of material fact for us to set for hearing.
Although intervenors' filings have not demonstrated the existence of a genuine issue of material fact, we also have inquired in somewhat greater depth in order to fulfill our obligation concerning whether or not to declare a sua sponte issue based on the materials filed before us. Our conclusion is that we are satisfied that the risk of a turbine missile is suf-ficiently small for us not to consider this to be a serious safety issue, as defined in the sua sponte section of the procedural rules.
I.
SAFETY CONS!DERATIONS AND
SUMMARY
DISPOSITION Some limited assurance of safety is available because there has never been a turbine failure in a General Electric nuclear turbine from stress corrosion cracking.5 Given the rigorous risk standard that has been ap-plied by the stalT - a probability of a turbine missile of less than 1 X 10 this limited operating experience is of only minimal value in 3 ssER 4 3.5.1.3.1.5. "Alternaine Procedure for Demonstraung Compliance with Regulanons" ai 3 5 to 34 4M at 34 5 Applicant's ansact at applicant's alredavit,2.
220
O demonstrating the safety of the turbine. However, additional assurance is derived from General Electric's inspections of 1300 turbine wheels at 36 operating units. Although 12 5% of these inspections produced indica-tions of stress corrosion cracking, almost all were shallow indications.*
The largest had a radial depth of only 1.75 inches.' All of the Daws are
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less than one-half the critical crack length' - the length of Daw deter-mined through a fracture mechanics analysis, using conservative assumptions, to be great enough to be of safety concern.' Furthermore, all of the indications deeper than % inch have been found in BWRs that are different from Perry because they lack the reheat system found at Pctry.'8 We attach considerable signiGeance to these results. The accuracy of the ultrasonic tests has been validated through laboratory tests on sam-ples containing stress corrosion cracks, produced by placing the samples in a caustic environment and experimentally inducing stress.ll Consequently, we are not as concerned about the comparatively high rate of Daws detected by the testing as is Ohio Citizens for Responsible Energy. Under the circumstances, we consider the three year inspection interval set by staff to be conservative and appropriate.12 Only one aspect of the record gives us pause. This aspect is OCRE's ci-tation of Patrick G. Heasier, " Missile Generation Rates from Historical Data," PaciGc Northwest Laboratories, for the proposition that:
iT]here is approximately one in a thousand chance of a new turbine in a plant faihng soon after it goes into operationM 6 Id. at i1.
' id.
8 ssER 3 si 3-10.
' General Electric seminar at 4-l.
10 IJ.
Il 1.arge steam Turbine-Generator Division..%Irar Hwert Srmmar. May 5 6.1982 (GE semmari at 2-1. of course. the vahdity of the testmg depends on the concluvon that "these cracks were successfully detected by the ultrasome test? We trust that the stalT either has esammed the data. or will shortly examme the data, in order to assure itself that General Electric's conclusion about the accuracy of the testmg is corroborated by the empirical evidence. This corroboration appears to be necessary because of recent esperience with the accuracy of ultrasonic testmg in detectmg stress corrosion crackmg m pipmg 12 ssER 3 at 310.
13 oCRE Response to NRC staffs Motion for summary Disposition of issue e13 ai 3. oCRE attributes this article to an october 1982 EPRI semmar on.Turbme Missile EITeas m Nuclear Power Plants.
(Having failed to ob.ain a copy of the article from our hbrary anJ hasmg had difreculty contactmg oCRE's representalise by telephone. the Board obtained a copy of this article from apphcant on August
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4.1982. At the same time, at the request of the Board, appbcant supphed a copy of s H Bush " A Reassessment of Turbine Generater Failure Probability." 19 Nuclear safety 681 t1978) )
221
O Mr. Heaster's article is based on empirical evidence. It differs by an
~~
order of magnitude'* in its conclusions from a staff estimate based on an article by S.H. Bush." It is not clear whether the stalTs reliance on an in-spection and maintenance program is dependent on its acceptance of the Bush estimate; however, we conclude that the staff cited Bush in the SSER 3 because it does rely on him.'* Furthermore, it would appear I
more appropriate for the staff to count on an inspection and maintenance program to reduce the risk of a turbine missile by one order of magnitude, to the level of risk previously accepted by the staff (1 X 104), than by two orders of magmtude.
Accordingly, we must decide whether citation of the Heasier article produced a " genuine issue of material fact," the standard defined in 10 C.F.R. 4 2.749(b). We conclude that it has not.
We note that this issue of legal interpretation is subtle. It depends to some extent on attaching a precise meaning to " genuine issue," in light of the procedural regulation and the cases (and policy statement) that have interpreted it. At the outset, OCRE faces a serious barrier because the regulations require it to " set forth specific facts such as would be admissible in evidence,"" and its citation to Heasier is not supported by an affidavit that would establish its admissibility. In this instance, the requirement of an aflidavit has especially important justification: the Heasier article appears to have been succeeded by subsequent field research, using ultrasonic testing, that may have changed Mr. Heasler's views. Consequently, an affidavit by Heasier would have established that he currently believes the facts and opinions stated in his article to be true. Furthermore, submission of an allidavit would have permitted Mr. Heasier to provide further support for his arguments, if he still believes them to be correct, in light of the subsequent research.
Nevertheless, because of the significance of granting a motion for summary disposition'8 and our responsibility to consider whether or not I
to declare a sua sponte issue, we will consider whether an affidavit from Heasier stating that his article and opinions are correct, would be sufli-cient to result in a denial of summary disposition. We conclude that it would not.
Heasier's estimate is a risk orone turbine missile per 10 reactor > ears during the initial or " burn-in" 3
period. while stafr estimates one incident in 10' years.
' See note 13. supro.
16 ssER 3 si 3-3 (6 3.51.3.3.3).
3710 C.F.R. 4 2.749(b).
38 we are also innuenced by the ract that oCRE is not represented by an ettorney. However. oCRE will be required to conform to the standards for filings on summary disposition in the ruture 222
in Pennsylvonia Power and Light Co (Susquehanna Ste am Electric Station, Units I and 2), LBP-81-8,13 NRC 335 (1981),
Board stated:
the Licensing
(
[
When a response to a summary disposition motion has been provided we m view the record and afDdavits both supporting and opposing the motion in a
most favorable to the opposing party. See Public Service Co. of New Hampshir (Seabrook Station, Units 1 and 2). LBP.74 36. 7 AEC 877,879 (1974).
Id. at 337. If we interpreted this sentence from Susquehanna liter viewing Mr. Heaster's article "in the light most favorable" to OCRE, might deny summary disposition and hear the issue of risk during the burn-in,neriod. However, we do noi interpret this precedent to requir us to do that. In the case that is most directly in point, Houston Lighting
& Power Co. (Allens Creek Nuclear Generating Station, Unit No.1)
ALAB-629,13 NRC 75 (1981) the Appeal Board was confronted with a similar problem. In that case, two expert witnesses testified that a 100 foot diameter test farm had produced evidence that it was feasible to operate a 306 square mile marine biomass farm. Nevertheless, the Appeal Board (and the Licensing Board in that case) examined the con-flicting affidavits and found that there was no genuine issue of fact.
We accept the Appeal Board precedent on this issue as sound. The regulations do not require merely the showing of a " material issue of fact" or an " issue of fact." They require a genuine issue of material fac To be genuine, we believe that the factual record, considered in its entirety, must be enough in doubt so that there is a reason to hold a hearing to resolve the issue.
This view is buttressed by the Commission's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452 (1981). In sec tion G. Summary Disposition, the Gommission declared that:
In exercising its authority to regulate the course of a hearing the boards should encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so thar endentiary heartng time is not w cessarily devoted to such issues."
(Emphasis supplied.) In this statement, the Commission linked the phrase genuine issue of material fact to a statement of the purpose to be served by applying the standard:
the purpose of avoiding spending un-necessary hearing time on an issue.
8' /d. at 457.
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O in this case, we conclude that we would spend unnecessary hearing
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time trying to resolve the colorable difference existing in our record.
The Heasler article is a series of figures and interspersed paragraphs re-flecting a presentation he made at a seminar. It is in the nature of a draft. It apparently was not published in a refereed journal, as was the S.H. Bush article that reaches a contrary conclusion.
That is not to say that Mr Heasier's article, presented to a respected forum, is not credible. It develops an interesting thesis, based on empiri-cal evidence - that the risk of a turbine missile failure is greater during an initial, burn-in period. It is presented in a straightforward, scientific manner and there is no reason to believe that the author suffered from any unfair bias about nuclear reactors.
However, we consider the refereed Bush article to be more credible.
Mr. Bush and Mr. Heasier both worked for Battelle's Pacific Northwest Laboratories.2o Bush was a member of the Advisory Committee on Reac-tor Safeguards from 1966 to 1977 and was its chair in 1971.2' Bush pre-sents a variety of assumptions in carefully presented statistical form. His article contains " comments" that in two instances indicate that at least two events could not properly be considered by Heasier as reflecting ad-versely on operating experience with turbines. These events occurred during a " factory test" or were "preoperational.*22 Heaster's article does not explain why it was appropriate to include these events in his analysis.
Bush's article also contains internal evidence that it may credibly be applied to a General Electric turbine. It derives this credibility because it presents General Electric's argument in favor of the company's modeling approach (which uses failure rates for components actually used in nuclear plants) and then rejects that model because 20 Bush at 681 n.l; src she the title page of the Hessler article.
21 id 22 in a table on p.10 of his report. Heasier hsts a 1951 bntile fracture at siemens as a " burn-in" failure, and he also hsts a 1972 fadure at Kainan as a " burn-m" failure, Both of these incidents are hsted m Table 6 of Bush, at 690. but they are described as " factory test" or "preoperationa'" We consider Bush's character'ution to be more credible since it presents a speciric fact thes was not commented on at all by Heasier.
This inconsistency came to our attention through Apphcant's Answer in support of summary Disposs-tion at 7 n.2. There. apphcant argued that all the Heasier incidents occurred during factory or preopera-tional tests. Although we could not venfy that, we did compare the articles and confirmed that the state-ment was true for two instances. We lack enough knowledge to know whether it is true for the other Hessler incidents as well.
we reject oCRE's argument that it was improper for applicant to respond to intersenor's prior riling.
Appiscant's rihng was proper and timely and we must consider it Admittedly, this creates an incentive for parties always to file at the last moment so their adversaries wi'J not gain an advantage. but the Board sees no efrective way around that particular incentive structure.
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factors not yet revealed during the limited experience with nuclear turbines to date may not be properly accounted for in the General Electric and Westinghouse models and therefore will cause their projections to be overly optimistic.23 in accepting the Bush conclusions, we also are influenced by the af-fidavits filed by applicant. In those affidavits, D.P. Timo and L.II. John-son present the detailed, empirically based analysis of turbine missile failures that this Board relied on at the outset of this opinion. We note that this affidavit, which has not been controverted, postdates Bush and Heasier and derives support from research results that were not available to them. Given its later date, there may well be other data available to its anthers t at were not previruisly available in this instance, we need h
not prefer the Timo-Johnson analysis to Bush's. We merely accept their analysis as additional corroboration for Bush.
On balance, and after consideration df the entire record, we therefore conclude that neither OCRE nor Sunflower has indicated that it has a genuine issue of material fact to litigate. The motion for summary dispo-sition should be granted.
- 11. POSSIBLE SUA SPONTE ISSUE We have decided not to declare any sua sponte issue growing out of the challenged contention. The staff and applicant have persuaded us that the maintenance and inspection program to be applied at Perry is ad-equate with respect to missiles generated from stress corrosion cracks.
In addition, we are favorably impressed by applicant's presentation on overspeed protection. The GE nuclear steam turbines have two separate, automatic systems to protect from overspeed failures.24 There are additional, manual systems available.25 All components that could contribute to a turbine-missile failure are designed to be tested on-line.2a The testing program to be implemented by applicant equals or exceeds what staff requires.27 23 Bush at 672-%.
24Aindavit of Timo and Johnson at 3-6. The hydrauhc system is common to these two protection systems, but its failure causes rapid closure of salves that would abort an overspeed esent IJ ai 6 251d. at 7-8.
26 IJ. at 8-10.
27 c p,,e Afndavit of Edward J. Turk, senior Engineer Nuclear Design & Analysis section of appli-cant at 2-3 to ssER 3 at 3-6 to 3-7.
225 I
9 Ill. OCRE REQUEST FOR A CONTINUANCE
~
y in its response to the Summary Disposition, OCRE argued that sum-mary disposition was not appropriate because certain tests to be done by General Electric had not been completed. It also stated that it had not yet had time to analyze documents received from applicant in response to a recent Freedom ofInformation Act request.
We are convinced that the lack of availability of the General Electric study does not provide ground for a continuance. Whatever that study may say, applicant is bound to an inspection and maintenance program as to which there is no genuine issue of material fact. Although that study, or any study, could provide additional doubts about the genera-tion of turbine missiles, it is sheer speculation for us to reach the conclu-sion in advance that this possibility is enough to delay consideration of the issue. No. It is salutary that research continues into nuciear safety issues even after safety of particular systems seems assured. It is ap-propriate that the NRC act on the best information available and that additional research also be conducted.
When we received OCRE's filing, however, we were concerned that the recently available Freedom ofInformation Act documents might pro-vide important information to it. Hence, we asked OCRE to flesh-out its request for a postponement by estimating how long a postponement was required. The response: that a postponement of six months is needed.28 This was not the magnitude of request for an extension of time that we contemplated. We deny the request. Despite OCRE's protestations that the recent hearings informed it about what is needed to try a conten-tion successfully, we have had several prior motions for summary dispo-sition and OCRE should be well aware of the nature of the analysis that this Board applies to such motions. There has been adequate time for discovery, since October 1982.2' OCRE's failure to conduct effective dis-covery during that time period may have resulted from failure to conduct its case diligently, but it is also possible that it has failed because there is no serious safety problem related to turbine missiles. There is no reason for us to speculate further, however; OCRE (and Sunflower) have had a fair opportunity to make their case and we do not believe that there is an important safety issue for us to pursue.
.f 28 AfGdavit or susan L Hiati et I (Gled June 29.198D.
2' LBP-82-98.16 NRC 1459 (1982) (admittmg turbme missile contention) 226
O ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 9th day of August 1983.
ORDERED The Summary Disposition Motion filed by the Staff of the Nuclear Regulatory Commission on May 31, 1983, is granted and issue #13 is dismissed from this case.
T11E ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISTR ATIVE JUDGE Glenn O. Bright ADMINISTR ATIVE JUDGE Bethesda, Maryland 227
O Cite as 18 NRC 228 (1983)
LBP 83 47 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
James L. Kelley, Chairman Dr. Cadet H. Hand Mrs. Elizabeth B. Johnson in the Matter of Docket Nos. 50-361-OL 50-362-OL (ASLBP No. 78-365-01-OL)
SOUTHERN CALIFORNIA EDISON i
COMPANY, et al.
(San Onofre Nuclear Generating Station, Units 2 and 3)
August 12,1983 The Licensing Board grants the, Applicants' motion to supplement the record, holding that they had met their burden of demonstrating a rea-sonable assurance that medical services arrangements had been made for the offsite public in the event of a serious accident.
EMERGENCY PLANNING: MEDICAL SERVICES ARRANGEMENTS The Ccmmission has interpreted 10 C.F.R. f 50.47(b)(12) on a gener-ic basis to require only that existing medical facilities be identified with respect to risks of radiation injury to the ofTsite public. Boards are not to go beyond lists of existing facilities to determine whether those facilities are adequate to cope with various accidents in the site-specific setting.
228
G MEMORANDUM AND ORDER (Ruling on Offsite Medical Services Issue)
Background
in our Initial Decision of May 14,1982 (LBP-82-39,15 NRC 1163),
and in accord with our interpretation of 10 C.F.R. 6 50.47(b)(12), we held that the Applicants had not met their burden of proving that ade-quate medical services had been arranged for members of the public off site who might suffer radiation injuries in a serious accident.
Concluding, however, that short-term operation while the Applicants ad-dressed those deficiencies would not endanger the pub!!c, we ruthorized interim operation and retained jurisdiction over the offsite medical ser-vices question.15 NRC at 11861200. Subsequently, in the course of ruling on a stay application, the Appeal Board expressed doubt whether we had correctly interpreted the medical services rule. ALAB-680,16 NRC 127,136-39. Thereafter, and viewing medical services arrange-ments as potentially significant generic issues, the Commission directed certification to it of two legal questions bearirig upon their proper scope.
CLI-82-27,16 NRC 883. In response to a certified question from this Board, the Commission directed us not to proceed with a site-specific hearing on medical services arrangements, pending further Commission order. Memorandum and Order of November 19,1982 (CLI-82-35,16 NRC 1510). On April 5,1983, the Commission decided the certified questions (CLI-83-10,17 NRC 528). The Commission did not address the medical services arrangements reflected in the record in this case.
Rather, it gave generic guidance and directed this Board to "take any fur-ther action it deems necessary to comply with this decision." /d. at 537.
Pursuant to procedures agreed upon among the Board and parties, the Applicants first submitted their position'on satisfaction of section 50.47(b)(12) requirements as they have now been interpreted by the Commission, supported by proposed findings of fact and conclusions of law and a motion to augment the record. The Intervenors and NRC Staff then responded to the Applicants' filings. Finally, the Applicants and Staff commented on the Intervenors' response.
In the succeeding paragraphs, we will summarize the Commission's decision and the Applicants' position (which the Staff supports), and we will discuss the Intervenors' objections. We conclude that the Appli-cants' position is correct, that they have now fully satisfied the require-ments of 10 C.F.R. 5 50.47(b)(12), anu that no further proceedings or license conditions concerning medical services arrangements are
~~
necessary.
229
O The Commission's Rulings The Commission's opinion provided separate guidance on required ar-rangements for two categories of members of the public who might be injured in a nuclear accident. The first category comprises persons who become traumatically injured and also contaminated - e.g., a person with a broken limb who is also contaminated by accident debris. As to such persons, the Commission stated that -
[Tlhe arrangements that are currently required for onsite personnel and emergency workers provide emergency capabilities which should be adequate for treatment of is.unisen ofiiic scnce ai pubii. Tiecrefore, no additionai medicai facilities or capabili-ties are required for the general put,lic. However, facilities with which prior arrange-ments are made and those local or regional facilities which have the capability to treat contaminated injured individuals should be identified. Additionally, emergency service organizations within the plume exposure pathway emergency planning zone (EPZ) should be provided with information concerning the capability of medical facilities to handle individuals who are contaminated and injured.
16 NRC at 530.
The second category comprises persons who may have been exposed to dangerous levels of radiation. As to such persons, the Commission stated that -
Treatment requires a lesser degree of advance planning and can be arranged for on an as-needed basis during an emergency. Emergency plans should however, identify those local or regiomt medical facilities which have the capabilities to provide ap-propriate medical treatment for radiation exposure. No contractual agreements are necessary and no additional hospitals or other facilities need be constructed.
Id.
The Applicants' Position and Motion As the Applicants point out, this Board has already determined that the Applicants' medical services arrangements for onsite and emergency workers are in place and adequate.15 NRC at 1244 45..ndeed, the find-ings on those arrangements were uncontested, although the Intervenors had cross-examined the Applicants' principal witness at some length. Tr.
7731-76, 10,834-41. Pursuant to the Commission's guidance, and as demonstrated in their motion to augment the record, the Applicants have informed the offsite emergency response agencies which hospitals 7-can provide medical services to persons traumatically injured and con-taminated by an accident at San Onofre.
230 m
/
1 With respect to members of the offsite publi that provision of appropriate medical trpos mission has determir sive advance planning. As that rule has now beeeat requirement is that the emergency plans "identifn interp
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9 which have the cap
\\
radiation exposure." abilities to provide, appropriate m y.
. medical faciliti 17 NRC 537. In response to this requirem Applicants have submitted updated portions of th
)
V San Diego Counties listing the available f iliie plans f
,11
"~
addition, the Applicants have identined to the O ac t es in each county.1 agencies other hospital facilities that could providrange C an emergency.
e necessary services in The NRC Staff and FEMA Positions concluded that the Applicants,have m submissions and has requirements, as interpreted by the Commission Thcab plicants' motion to augment the record and p ey support the Ap-and propose an additional finding of fact for our roposed Gndings of fact, The Staff has also submitted a document b consideration.
" Federal Emergency Management earing the letterhead of
" Review of OITsite M sions in this case (sce,edical Services." Like s 1983,17 NRC 536 n.12a), this D Decision of April 4 raises as many ques,tions as it answers. In the Grst n
the FEMA hierarchy, and therefore the w i h ent ace, its position in ly be entitled, is unclear. Is this a " national"e g t to which it Staff's pleading), a " regional" view (as sugg view (as implied by the paragraph of the text)? This Board has a as implied by the Orst we cannot allow Mr. Nauman, a regional official arned the hard way that view. ALAB 717,17 NRC 346,381-82
, to present the national tive paragraph of this document hopelesslP second and only substan-a capability to handle " contaminated and injur dy ambiguous area over which we no longer havejurisd e
personnel." We can n ured on site, an in the most general way to the health e ast sentence refers in the document is there any explicit recognitiand safety of posed to dangerous levels of radiation-existing u ar y persons ex-L
.r 231 x
j
a, O
~ ' "
That the FEM A officials may not have understood the narrow issue before this Board is also suggested by their apparent focus on the
" adequacy" of offsite medical services. Thus FEM A now tells us (without any explanation) that present levels of planning and existing medical resources in the San Onofre area " reflect a capability to meet potential requirements." Prior to the Commission's ruling on the certi-lied questions, this Board had held that arrangements for medical ser-vices for injured members of the ofTsite public were required and that this Board would have to make a site-specific determination on the ade-quacy of those arrangements.15 NRC 1196 n.24. As shown by our Order of October 5,1982 (LBP 83-8C,17 NRC 297) setting adequacy of medical services issues for hearing, such issues can be rather complex.
In response to our certified question, however, the Commission directed us not to conduct such a hearing. And the Commission's subsequent rul-ings specify only that lists of existing facilities are to be compiled. Thus we read the Commission's rulings on the certified questions, particularly
/
in the context in which they arose, as generic determinations on the ade-quacy of medical services arrangements. In other words, as to members of the offsite public who may suffer radiation injuries, a licensing board's proper inquiry is quite narrow - whether existing medical facili-ties have been identified. That identification itself is to be deemed ade-quale to satisfy the rule as a matter oflaw, whetner the existing facilities are many or few, subject only to the possibility of an exception under 10 C.F.R. # 2.758. Boards are not to go behind the list of existing facilities to determine whether those facilities are adequate (or inadequate) to cope with various accident scenarios in the site-specific setting. Thus FEM A's views on the adequacy of facilities around San Onofre are irrelevant.
In light of these considerations. FEMA's most recent submission has not been helpful. It can remain in the record to evidence the fact that FEMA was duly consulted. We close on this point with two observations. First, while there are technical emergency planning issues on which FEM A's participation may be helpful or even essential, this is not one of them. The Board and parties in this case are perfectly capable of compiling a list of existing medical facilities. Second, although it adds nothing, neither is there anything in the FEMA submission that detracts from our conclusions.
The Intervenors' Comments and Objections
.g.
The Intervenors argue, first, that this Board must go behind the list-ings of existing medical facilities "to determine whether in any specific s
232
x A
<w 9
case there is a reasonable assurance that [ arrangements for adequate treatment] can and will happen." Comments at 3. As we have already x
1..
4 explained, our reading of the Commission's opinion precludes the kind
[., M of site specific analysis the Intervenors urge. Again, as we understand the Commission, the listing of existing facilities - whatever they may c - '
/
N be - is to be deemed adequate. The Intervenors do not point to any specific defects in the prolTered listings of the kind we might consider -
e.g., that hospital Xwas omitted or that hospital Yhas no nuclear medi-cine department.
~
Among other matters, the Intervenors argue for a requirement that
" implementing procedures and SOP's" for sending people to different hospitals should be deu19 ped. Comments at 4. Although this may be a useful suggestion, we read the Commission's opinion as an exclusive listing of what is required under the rule. We have no power to add this suggestion as another requirement.
The Intervenors ask for further hearings en the adequacy of medical arrangements for onsitu_ workers in light of the Commission's ruling that such arrangements are aim to serve for members of the public who are traumatically irdured and contaminated. It is true that the Intervenors' contention as drafted focused on the offsite public, not onsite workers, and that may explain why they did not present a direct case or proposed findings on the Applicants' plan for onsite workers. But the Intervenors'
! ' statements that they "were not litigating" the onsite arrangements and that "no cross-examination was tendered thereon" are not accurate. As we noted earlier, the Intervenors cross-examined the Applicants' princi-pal witness on this subject at some length. Thus they have already had and have taken advantage of one opportunity to probe the Applicants' onsite plans. See 15 NRC at '175 76,1186. It may be true as an abstract
~
proposition that the Intervenors might have done more (or something 7,
different) with this issue if they had had the benefit of the Commission's guidince at the time. But that theoretical possibility is not a sufficient basis for a further hearing. First, it is significant that the Applicants' d'
plans for onsite workers were quite extensive; we found them to be
" fully adequaic fin that purpose." 15 NRC at 1186. Beyond that, the Commission's extension of the onsite arrangements to protect persons who may be traumatically injured and seriously contaminated off site in-volves only a very modest potential extension of those plans. It is un-realistic to expect that large numbers of people off site will, simultaneously, become seriously injured and contaminated, even in a serious nuclear accident. Tr. 11,059-61. Furthermore, the Intervenors do not point to particular features of the onsite plans as justifying their
=
,+ f
+
m.
[
~
233 e
+
3 g
O
~~n request for further hearings. At this late stage, we would insist upon a L,
particularized showing of need as a predicate for further hearings.
The Intervenors object that the portions of the emergency plans for Orange and San Diego Counties in the motion to augment the record have not been properly authenticated. The Applicants have met this ob-jection by the Declaration of Mr. Massey and attachments thereto.
Finally, the Intervenors propose a license condition that would require further listings of medical facilities and related modifications of offsite plans. Much of what this condition would require, and all that the Com-mission's rule requires, have already been done. We reject this proposed condition as unnecessary.
Conclusions in light of the foregoing, the Board grants the Applicants' motion to augment the record and adopts and incorporates herein by reference the Applicants' proposed findings of fact dated May 16, 1983. We also find that the NRC Staff has reviewed the Applicants' submissions of May 16, 1983 and has determined that they reflect compliance with 10 C.F.R. 6 50.47(b)(12), as interpreted by the Commission. Based on the fore-going findings, the Board concludes that the Applicants have met their burden of proof and have demonstrated a reasonable assurance with respect to arrangements for medical services required by 10 C.F.R. 6 50.47(b)(12), as that rule has been interpreted by the Commission.
In accordance with the foregoing findings and conclusions, the Direc-tor of Nuclear Reactor Regulation is authorized to delete any conditions in the operating licenses for Units 2 and 3 of the San Onofre Nuclear u...-
234
O Generating Station concerning medical services arrangements pursuant to 10 C.F.R. 6 50.47(b)(12). Upon issuance of this Memorandum and Order, the jurisdiction of this Board will terminate.
THE ATOMIC SAFETY AND LICENSING BOARD x
James L. Kelley, Chairman ADMINISTR ATIVE JUDGE Dr. Cadet H. Hand ADMINISTRATIVE JUDGE Mrs. Elizabeth B. Johnson ADMINISTR ATIVE JUDGE 1
Dated at Bethesda, Maryland, this 12th day of August 1983.
6 1
235 ll
)
O Cite at 18 NRC 236 (1983)
LBP.83 48 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 50-446 (Application for Operating License)
TEXAS UTILITIES GENERATING COMPANY, et af.
(Comanche Peak Steam Electric Station, Units 1 and 2)
August 15,1983 The Licensing Board holds that it is not appropriate to supplement the record of an ongoing proceeding with unsolicited filings. Parties have an obligation to assist the Board by presenting eviderace in a controlled, organized fashion and should await an appropriate opportunity to submit evidence rather than submitting documents in dribs and drabs.
RULES OF PRACTICE: MOTION TO SUPPLEMENT Tile RECORD Parties should present evidence in a controlled, organized fashion and the Board will not grant attempts to supplement the record on pending issues by making filings in dribs and drabs.
236
l t
MEMORANDUM AND ORDER (Motion to Supplement and Correct Record)
Citizens Association for Sound Energy (CASE) filed a motion on E
August 3,1983, regarding the completeness of the record in this case.
That motion, which was opposed by Texas Utihties Generating Company, er al., is denied for lack of ripeness.
CASE filed material for the record because of its concern that the Licensing Board be kept informed. Ilowever, with the exception of Board Notification Procedures applied by the Staff of the Nuclear Regulatory Commission, we do not consider it appropriate for a party to
" supplement" the record with respect to issues that may still be heard in this ccse. By awaiting a possible hearing, which might occur either with respect to our recently issued Proposed /nitia/ Decision or with respect to the ongoing investigations being conducJed by the Office of Investigation, CASE will be ab!c to assist the Board by presenting its evidence in a controlled, organized fashion. Such a presentation would be far more helpful to the Board than would a serics of dribs and drabs that would require the Board to organize and make sense of the record for itself. In this instance, the filing of affidavits prior to a hearing in which direct testimony likely would be elicited is especially nonproductive.
On the other hand, we agree with CASE and with the July 27,1983 motion by the State of Texas, that the transcript of our telephone conference of July 20, 1983 should be corrected. The State of Texas took the position in that telephone call that it would stipulate to the l
content of interviews that it had conducted providing that the stipulation included reference to the position of the witnesses that Mr. Atchison I
had not been fired because he had engaged in protected activities. We f
note that this is the same conference in which we " denied" CASE's
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motion for reconsideration on thermal stress. The transcript states, erroneously, that we " applied" the motion.
ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this !5th day of August 1983, ORDERED Citizens Association for Sound Energy's motion to supplement the F
record, filed on August 3,1983, is denied for lack of ripeness. Ilowever, 237
O the transcript shall be considered to be corrected pursuant to the accompanying memorandum.
=
FOR Tile ATOMIC SAFETY AND l
LICENSING BOARD Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland F
h 4
E 238
Cite as 18 NRC 239 (1983)
LBP 83 49 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Charles Sechhoefer, Chairmen 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 af.
(South Texas Project, Units 1 and 2)
August 16,1983 The Licensing Board denies a motion by an intervenor for reconsidera-tion of LBP 83-37, which declined to admit a financial qualifications con-tention or to recommend to the Commission (pursuant to 10 C.F.R.
f 2.758) that the rule prohibiting consideration of financial qualifications contentions be waived.
RULES OF PRACTICE: CHALLENGE TO COMMISSION REGULATIONS To make a primafacie showing under 10 C.F.R. 6 2.758 that a regula-tion should be waived, a stronger showing than would be required to in-troduce a new contention must be made. Evidence would have to be pre-
~
sented demonstrating that the facility under review is so different from other projects that the rule would not serve the purposes for which it was adopted.
239
O MEMORANDUM AND ORDER (Denying CCANP Motion for Reconsideration of LBP-83-37)
In our Memorandum and Order dated July 14,1983, LBP-83 37,18 NRC 52, we denied the motion of Citizens Concerned About Nuclear Power (CCANP) for admission of a new contention, dealing with the Applicants' financial qualifications to " complete and operate" the South Texas Nnclear Project (STNP). We also declined CCANP's request for us to certify to the Commission, pursuant to 10 C.F.R. 4 2.758, a recom-mendation that the regulation prohibiting consideration by licensing boards of the financial qualifications of regulated utilities be waived for this proceeding.
On July 29, 1983, CCANP filed a motion for reconsideration of LBP-83-37. We believe that the reasoning in LBP-83-37, supplemented by the comments below, essentially covers the points raised in the motion for reconsideration and, accordingly, we are denying the motion.'
Only a few additional comments are warranted:
- 1. CCANP is claiming we adopted too stringent a standard for determining that waiver of an NRC rule is justified. It asserts that it need only make a prima facie showing that the Applicants' ability to demonstrate their financial qualifications is "not substantially certain."
We disagree. Even under the rule in efTect prior to March 31, 1982, under which consideration of the financial qualifications of a utility was permitted, the standard was whether there was " reasonable assurance" of an applicant's financial qualifications.10 C.F.R. 6 50.33(f) (1982). To make a primafacie showing under 10 C.F.R. 6 2.758 for waiving the cur-rent rule, a stronger showing than lack of reasonable assurance would have to be made. " Unusual and compelling circumstances" is the stan-dard we referred to in LBP-83 37. To satisfy that standard, CCANP would have to present persuasive " evidence," not " bare allegations."
Cf. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI-81-5,13 NRC 361, 362-63 (1981). And, in particular, it would have to present evidence that the STNP ir so dif-ferent from other projects that the rule would not serve the purposes for which it was adopted. CCANP has not made the requisite showing con-cerning IIL&P's financial qualifications.
3 on August 12.1983 we advised the NRC staff. and suggested that the staff inform the Apphcants, that a response to the motion ror reconsaderaten would not be necessary C/ Masar FaaArc Aromsr Poner Co. (Maine Yankee Atomic Power station). AL AB-166. 6 AEC 1148.1150 n 7 (1973L 240
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- 2. CCANP has provided additional information concerning what it regards as the inadequacies of Region IV inspection efforts. In LBP 83-37, we recognized that, in limiting the financial qualifications review, the Commission placed some reliance on NRC's inspection efforts. But we found that the Commission was well aware, when it amended its rule, of the asserted 1979 deficiency to which CCANP directed our attention. We also noted that there has been significant reorganization and restructuring of NRC's inspection functions in the recent past. Even if we were to accept the additional information con-cerning the elTectiveness of Region IV inspection efTorts which CCANP has provided, it would not alter our opinion that CCANP has not shown that this proceeding is different from the general run of proceedings in-volving reactors subject to Region IV inspection efforts. Nor have we been provided with any connection between the inspectors now being criticized by CCANP and the South Texas facility. The current criticism may or may not be justified. Acceptance of CCANP's arguments would effectively dictate a waiver of the financial qualifications rule for every Region IV reactor. On the basis of the information before us, we are not prepared to make any such waiver recommendation to the Commission.
- 3. In declining to recommend a waiver of the financial qualifications regulation, we wish to stress that we are merely applying NRC rules as we understand them. We are not indicating any agreement or disagree-ment with the current rule. CCANP's arguments for waiver appear to us to represent a dissatisfaction with the new rule and a showing why that rule may not be appropriate as a matter of policy, rather than a showing that the regulation is particularly inapplicable to STNP. While we have indicated that CCANP would perhaps have succeeded under the prior rule in introducing a late filed financial qualifications contention, we must recognize that such rule is no longer in elTect and that the rule change must be accorded some substance.
For the reasons stated,it is, this 16th day of August 1983, ORDERED That CCANP's Motion for Recoasideration of LBP-83-37 is demed.
FOR THE ATOMIC SAFETY AND LICENSING BOARD r.
Charles Pechhoefer, Chairman ADMINISTR ATIVE JUDGE 241
O Cite as 18 NRC 242 (1983)
LBP 83 50 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Charles Bechhoefer, Chairman Dr. Frederick P. Cowan Dr. Jerry Harbour in the Matter of Docket Nos. 50 329 OM&OL 50-330-OM&OL (ASLBP Nos.78-389 03 OL 80-429 02 SP)
CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2)
August 17,1983 The Licensing Board denies a motion by an intervenor to reopen the record, on the grounds that the facts asserted to justify reopening do not fall within the scope of an admitted contention and, in addiuon, are not of sufficient safety significance to warrant a reopening of the record.
RULES OF PRACTICE: REOPENING OF PROCEEDINGS Where the entire record of a proceeding is not closed and an initial de-cision has not been issued, a party seeking to reopen the record on issues the adjudication of which have been completed must demonstrate that the matter it wishes to have presented is (1) timely presented, and (2) addressed to a significant issue. The timeliness inquiry is subsidiary to the significance of the material to be considered. Where an initial deci-sion has been issued, a party must additionally demonstrate that the matter is susceptible of altering the result previously reached.
242
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RULES OF PRACTICE: REOPENING OF PROCEEDINGS A party moving to reopen a record must ofter significant new evidence and not merely " bare a!!egations" or new contentions. Pacific Gas and L.
Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-815,13 NRC 361,362-63 (1981).
w Y
MEMORANDUM AND ORDER (Denying Motion to Reopen Record on Containment Cracks)
During the evidentiary hearing session on June 27,1983, Ms. Barbara
-[
Stamiris, an intervenor in this consolidated OL/OM proceeding, moved to reopen the record on her Contention 4 (Tr.17,988-92,17,994-96).'
The Applicant and NRC StafT filed responses dated July 18,1983 and July 22,1983, respectively, opposing the motion. During the hearing session on August 4,1983, we heard Ms. Stamitis' reply to the responses
?-
of the Applicant and Staff (Tr. 20,481 96). For the reasons which follow, we find that the grounds relied on by Ms. Stamitis do not estab-g lith a set of facts which would be encompassed by Contention 4 and, in addition, are not of sufficient safety significance to warrant a reopening i
of the record.
A.
Positions of the Parties
_W_
- l. Contention 4 asserts, in pertinent part, that
-}
Consumers Power Company performed and proposed remedial actions regarding soils settlement that are inadequate as presented because:
7 eee P'
C. Remedial soil settlement actions are based on untested assumptions and inade.
p quate evaluation of dynamic responses of those structures to such things as dewatering, difTerential soil settlement, and seismic characteristics:
C la-d, four listed structures, not including containment]
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t
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I The contention referred to is Contention 4 of the oM proceedmg. as set fonh in our Prehearing Con-x Terence Order dated october 24.1980 (unpubhshed).
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D. Permanent dewatering
- 1. would change the water table, soil and seismic charuteristics of the dewa-tered site from their originally approved PSAR characteristics - characteris-tics on which the safety and integrity of the plant were based thereby necessitating a reevaluation of these characteristics for afTected Category I structures; 2 rr.sy cause an unacceptable degree of further settlement in safety related structures due to the anticipated drawdown efTect; Prehearing Conference Order, dated October 24,1980, at Appendix pp.
5-7.
In support of her motion to reopen the record, Ms. Stamiris cites reports of containment cracks in Unit I set forth in Inspection Report 83-01, dated February 25,19832 (Stamiris Exh. 50) (derived from an in-spection conducted on January 11-14, 1983), tog'ther with a memoran-dum from Darl Hood (NRC Project Manager) to iles, dated January' 19, 1983 (Sinclair Exh. 5), enclosing a record of telephone discussions be-tween the Staff, the Staff's consultants, Consumers and Bechtel concerning, inter alia, a "possible explanation" for uneven settlement at the north end of the Main Auxiliary Building - namely, that The dewatering for underpinning is causing an uneven immediate settlement over a relatively large area in the thick glacial tilllayer.
Ms. Stamiris also cites certain Stone & Webster reports which assertedly indicate that unanticipated dewatering was necessary to control groundwater seepage in soils underpinning excavations. She claims that the OM record does not include any assessment of the containment cracks or whether the integrity of the glacial till is an adequate founda-tion for safety related structures when affected by " soils remedial mea-sures or other soils conditions causing degradation in its essential foun-dation properties" (Tr.17,991). She explains that the cracks in the Unit I containment "may be an example of how the soils remedial fixes themselves have the capacity to produce irreversible damage to safety class structures" (Tr.17,992). In essence, she is claiming that the con-tainment cracks resulted from differential settlement of the till which un-2 This report was attached to a letter and Notu:e or violation dated March 4.1983 and was distnbuted to the Board and parties on that date.
244 i
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derlies the containment structures, and that the differential settlement was caused by dewatering.
- 2. In opposing Ms. Stamiris' motion, the Applicant claims both that the motion was not submitted in a timely fashion and t'iat it does not raise a significant safety issue. With respect to timeliress, it claims that Ms. Stamiris should not have waited until June 27,1983 to file a motion based on an inspection report served on March 4,1983 (and presumably received by Ms. Stamiris shortly thereafter). As for safety significance, the Applicant supplied the aflidavits of Dr. Palanichamy Shunmugavel and Dr. W. Gene Corley (both of whom have previously appeared as witnesses in this proceeding). In sum, they concluded that:
- 1. The containment cracks occurred prior to the time the contain-
~
ment coating was applied in 1977. Therefore, they are not relat-ed to dewatering or any soils remedial action.
- 2. The containment crack patterns do not suggest that the cracks were caused by settlement. Moreover, there has not been any unusual or unexpected settlement of the containments at Midland.
- 3. The containment cracks are not unexpected in the locations where they are found and do not represent any safety problem.
This will be confirmed by mapping the cracks before and after and by monitoring the cracks during the structural integrity test.
Through its pleading, the Applicant made a commitment to carry out the crack monitoring program referenced in paragraph 3, above (as de-scribed in Dr. Shunmugavel's affidavit and approved by Dr. Corley).
- 3. The StafT tock a somewhat different approach. It perceived Ms.
Stamitis' motion as raising five issues (StafTresponse, pp. 2-3):
Issue 1: Need for the OM record to contain a general discussion of the cracks in the containment building discovered by the Staff m January.1983 and docu-mented in Inspection Report 83-01. (Stamiris Exhibit 50) (Tr.17.991)
Issue 2: Fact that the OM record contains no evidence on the competence of the gla-cial till. (Tr.17.991)
Issue 3: More specifically. the cracks se the con:2inment call into question the compe-tence of the glacial till. and cast doubt on the acceptability of underpinnmg structures down to the till. (Tr. 17,990. 17.992)
Issue 4: Possibihty that dewatering is causing uneven settlement of the till. (Tr.
17.990-92)
Issue 5: Need to explore comments made during telephone calls held on January 11 and 12.1983. The participants were CPC. Bechtet. the Staff and the Staf!'s 245
O consultants. The purpose of the call was to discuss settlement records for the benchmarits associated with the underpinning of the two Electrical Penetra-
~ ~ * - -
tion Areas. In the course of the call CPC speculated that a possible cause of a larger amount Of settlement occurr.as et the north end of the auxiliary building was due to dematering. (Tr.17,990)
It found the first two of these issues not to involve the proposed reme-dial fixes and hence not to fall within the scope of the contention sought to be supplemented by Ms. Stantiris. Moreover, as to questions concern-ing the foundation competency of the glacial till (including the elTects of dewatering on that till), the Staff notes that those questions have already been addressed in this proceeding and that Ms. Stamiris' assertion to the contrary is incorrect.
With respect to what it regards as "new" information - i.e., the sug-gestion during the January 11,1983 conference call that a larger amount of settlement at the northern end of the auxiliary building was due to dewatering, and the discovery of cracks in the containment building -
the Sta " takes the position that the information is not significant enough to warrant reopet.ing of the record. In support of this position, the Staff offered the affidavits of Mr. Joseph Kane and of Mr. Frank Rinaldi (both of whcm have also previously appeared as witnesses in this proceeding). In general, Mr. Kane stated that settlement resulting from dewatering had been expected and, in fact, was less than had been anticipated. Although the Staff has not yet ascertained the cause of the containment cracks, Mr. Kane concluded that the cause was not differen-tial settlement. That being so, the Staff asserted that an insufGeient basis was proffered to reopen the record on Contention 4.
B.
Applicable Criteria
- 1. The Applicant characterizes Ms. Stamiris' motion as an attempt "to add a new contention after the close of the record." On that basis, it asserts that Ms. Stamiris must satisfy (1) the specificity and basis re-quirennents in 10 C.F.R. ir 2.714(d); (2) the standards for admitting a late-filed contention set forth in 10 C.F.R. { 2.714(a)(1); and (3) the criteria established in case law for reopening the record, citing Pacif7c Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL182-39,16 NRC 1712,1714-15,(1982); CLI-815,13 NRC 361, 364 (1981); and Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730,17 NRC 1057,1065 & n.7 (1983). It outlines the criteria for reopening the record by referring to the summary of those criteria presented by the Appeal Board in fermi, supra, to the effect that a party must demonstrate that the matter it wishes to have presented is 246
O (1) timely presented, (2) addressed to a significant issue, and (3) sus-ceptible of altering the result previously reached. The Applicant adds 1
. r that, in tuling upon a motion to reopen the record, we may take into ac-t count aflidavits and other evidentiary material as if ruling on a motion for summary disposition. Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523-24 (1973).
- 2. In discussing the standards for considering Ms. Stamitis' motion, the Staff refers only to the criteria for reopening the record, it stresses that "the proponent of a motion to reopen bears a heavy burden,' citing Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 9, 21 (1978). In order to satisfy that burden, according to the Staff, the motion must be timely presented and addressed to a significant issue. See also Pacvic Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB 598,11 NRC 876, 879 (1980); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320,338 (1978). Ac-cording to the Staff, significance has long been interpreted as "of major significance to plant safety." Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-124,6 AEC 358,365 (1973). As had the Applicant, the Staff pointed out that a party moving to reopen the record must offer significant new evidence and not merely
" bare allegations" or new contentions. Diablo Canyon, CL1-81-5, supra, 13 NRC at 362-63.
- 3. Ms. Stamiris, in replying to the Applicant's exposition of the stan-dards applicable to her motion, disavowed any intent to add a new and different contention (Tr. 20,481). She claims that only the criteria for a motion to reopen should govern. She delineates those criteria in the same terms as the Applicant and claims that her motion satisfies those standards (Tr. 20,482).
- 4. We agree with the Staff that Ms. Stami-i:' me:ica presents essen-tially five issues (as set forth above). We also agree that the first two issues, standing alone, are not encompassed within Contention 4, since they do not directly raise questions concerning the adequacy of remedial actione (the subject of Contention 4). Since Ms. Stamiris has indicated that she does not wish to proffer a new contention but only to reopen the record on an existing contention, we will not consider the first two issues, as outlined by the StalT.3 That being so, the standards we will
-w 3 We note that. contr6ty to Ms. stamiris' dom. :he record does include s4gnificant inrormation on the d
7' competency or the glacul till. as ou'hned in the responses or the Apphcant (pp 4-5) and stafr (pp 54L 247
G apply to our consideration of Ms. Stamiris' motion will be those applica-ble to reopening a record, and not the standards for the adequacy of con-tentions or for the acceptance oflate-filed contentions.
The criteria outlined by the Applicant (and apparently accepted by Ms. Stamiris) are more stringent than those which properly govern the motion before us. In this situation, the record is not yet closed in the OM proceeding, in which Contention 4 has been litigated. Instead, only the hearing of certain issues has been completed. However, all of the cases but one cited by the Applicant (and the Staff as well) for defining the criteria for reopening a record involved situations where not only had the record been closed but an initial decision had been issued. See Diablo Canyon, CLI.82-39, CLI-81-5, and ALAB-598, supra; fermi, ALAB-730, supra; TMI, ALAB-486, supra;and Wolf Creek, ALAB-462, supra. In Vermont Yankee, ALAB-124 and ALAB-138, supra, the entire record was closed although an initial decision had not been issued at the time the motion was filed. ALAB-124, supra,6 AEC at 363. Only where an initial decision has been issued must a movant to reopen a record es-tablish that the material sought to be presented is susceptible of altering the result previously reached. Three Mile Island, ALAB-486, supra, 8 NRC at 21. Absent a decision, there is no result to be altered. Thus, the third criterion advanced by the Applicant (although not by the StafD does not apply to Ms. Stamiris' motion.
The closest decision we have found to the factual situation before us (not cited by either the Applicant or StalD involved a situation where, although a partial initial decision on certain questions had been issued, the record nf the entire proceeding was not closed when a motion to
~
reopen was filed. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-86,5 AEC $76 (1972). There, the Appeal Board indicated that the motion had to be timely and raise issues "of substance"; these are essentially the first two criteria advanced by the Applicant and accepted by the Str.frand Ms. Stamitis. Collectively, all of these decisions s.;ggest that these two criteria would similarly govern the situation before us. Accordingly, we will. apply them to Ms. Stamitis' motion. In doing so, we also will take account of the fact that the burden for reopening the record of a proceeding not yet closed (such as this one) may be somewhat less than if the record of the proceeding had been closed. See Vermont Yankee, ALAB-138, supra,6 AEC at 523 n.12.
C.
Board's Ruling
- 1. Applying the foregoing standards to Ms. Stamiris' motion, we need not dwell long on the timeliness question. For, as the Appeal Board has 248
1 O
stressed, the timeliness inquiry is clearly subsidiary to the significance of the material to be considered:
' ~ '
A board need not grant a motion to reopen which raises matters which. even though timely presented, are not of "maior significance to plant safety" *
- By the same token, howeser, a matter may be of such gravity that the motion to reopen should be granted notwithstanding that it might have been presented earlier Vermont Yankee, ALAB-138, supra,6 AEC at 523 (citations omitted).
Given that guidance, we turn directly to the significance of the matters sought to be raised by Ms. Stamiris, without considering whether her delay from mid-March to late June 1983 in submitting the motion might prove fatal to her motion.*
- 2. Of primary importance is the explanation provided by both the Applicant and Statiof the meaning of the conference call statement con-cerning the possible effect of dewatering the glacial till on differential settlement of the auxiliary building, on which Ms. Stamiris relies. It is clear from the enclosure to the January 19, 1983 memorandum (in which that statement appears) that dewatering was one of three "possible explanations" of differential settlement which representatives of CPC/Bechtel and the StalT had discussed. According to the Staff, the three possible explanations had been offered by Consumers' consultants (Kane Aff., p. 2).5 Later in the same document, the Staff expressed its opinion that "the relatively small settlement values and the trends of that data which have been recorded to date are a result of temperature changes" (Sinclair Exh. 5, Enclosure, p. 4). In other words, the apparent differential settlement observed at the auxiliary building was not the result of dewatering.
Beyond that, both the Applicant and Staff have provided affidavits in-dicating that the total amount of settlement of the containment buildings to date has been less than previously predicted and analyzed. The total settlements recorded up to May 7,1983 are 1.32 mehes for Unit I and 0.92 inch for Unit 2 and a maximum differential settlement of approxi-mately one-halfinch at both units. These settlements reflect the efTects of structural loadings as well as temporary and permanent dewatering.
Kane Aff., p. 3. Total predicted settlement during the 40-year life of the plant is 2.4 inches for Unit I and 2.3 inches for Unit 2 (Staff Exh.14,
- We note. however. that in evaluating timeliness we may conseder such ractors as when the si8nificance or an issue can be fully appreciated and the complexity or the issue. Pomi Broca. AL AB-86. supra. s AEC at 378 3 Mr Kane is the stafr member who authored the enclosure to the January 19. 1983 memorandum in which the statements in quesuon appear.
249
O SSER-2, p. 2-41), or about 2.5 inches (Shunmugavel AIT., p.10). The Staff attributed 0.4 inch of the observed settlement to dewatering, but it stresses that in its SSER-2 evaluation it had predicted 0.6 inch of settle-ment due to dewatering (Kane Aff., p. 5). The Applicant had predicted 0.8 inch of settlement from dewatering (Shunmugavel Aff., p.10; Corley Aff., p. 4). The Staff expressed the opinion that, given the amount of settlement ob:;;rved and attributable to dewatering, the
' cracks in the containment were not likely to have emanated from effects of the dewatering system on the glacial till (Kane Aff., p. 3).
During her oral reply (Tr. 20,492-96), Ms. Stamiris and her counsel also expressed concan that the predicted value of settlement of contain-ment buildings due to dewatering (0.6 inch by the Staff and 0.8 inch by the Applicant) applied to the lifetime of the plant'; and, since 0.4 inch has already occurred, futere settlement due to dewatering may exceed the predicted value. Careful reading, however, shows nothing in the Kane aflidavit, SSER-2, or the FSAR to indicate that future settlements oi containment buildings caused by dewatering are to be expected after that caused by initial lowering of the water table to about 590 feet, which has already occurred (Kane Aff., pp. 4-5). Even if Ms. Stamitis' interpretation were correct, the proportion of measured-to piedicted set-tlement from dewatering is not significantly different from the propor-tion of measured-to-predicted total settlement for the containment buildings.6 This similarity between measured-to-predicted settlements does not lend credence to Ms. Stamitis' concern that settlement due to dewatering has been excessive.
The only other grounds for questioning the dewatering system are the Stone & Webster reports referred to by Ms. Stamiris (Tr.17,991) as al-legedly showing that greater dewatering than originally predicted had been found to be necessary. We agree with the Applicant (response, pp.
3 4) that Ms. Stamitis has misinterpreted the reports in question.
The dewatering system is the only remedial action contemplated by Contention 4 with respect to which Ms. Stamiris has attempted to
- Proportion or mesured-to-predicted settlemtat from demaienng is 0 4 inch 0.6 mch = 67%
(stafn 0 4 inch 0 8 snch = 50%
(Apphcani)
Portion or mesured to.predsted total settlement is E
2i nch = 55% (Unit D
= 40% (Unit 2)
(stafn
,nc f = 53% (Umt D 2
37% (Unit 2)
(Applicant)
=
250
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demonstrate a relationship to the ec1:ainment cracks. On the basis of the taformation prosided by the Applicant and StalT, it appears that the containment cracks cannot be reasonably attributable to the dewatering.
That being so, what we have before us is reduced to " bare allegations,"
not the evidence required ;o jus;ify reopening of the record on Conten-tion 4. Diablo Canyon. CLI-81-5, supra,13 NRC at 362-63.
We might add that, given the lack of any persuasive connection of the cracks to dewatering, we have not attempted to evaluate the Applicant's position that the cracks originated prior to the installation or operation of the dewateri,1g, system, and that the cracks have no safety significance. Answers to those questions would not provide the requisite nexus of the cracu to remedial actions covered by Contention 4.
Moreover, the StalT inelf has not completed its resiew of either the cause or the :;ignificance of the containment cracks. We note, however, that Dr. Corley's alTidavit, as well as prior testimony in this proceeding, indicates that the existence of cracks in concrete structures is not unes-pected and does not per se reflect any safety concern. Corley AIT., p. 2; Wic&ct, prepared testimony, fol. Tr.10,790, at pp. 28 29; Solen. pre-l pared testimony, fol. Tr.10,950, Attachment I, pp. 1.1-1.3, 2.2. In terms of evaluating the significance of the containment cracks, both the Applicant and StalT refer to the structural integrity test which the Appli-cant must perform, and the Staff indicates that it will defer completion of its evaluation of the cracks until after the test has been completed (Rinaldi AIT.). In addition, we accept the Applicant's commitment to perform the crack monitoring which it has outlined.' From what we have before us, we find no basis for concluding that applicable regulatory standards will not be met or that public health and safety will be compro-mised by the method selected by the Applicant and StalT for resolsing the questions surrounding the containment cracks.
Based on the foregoing, and particularly the lack of any credible con-nection of the chcerved containment cracks to the remedial actisities questioned by Stamiris Contention 4, it is, this 17th day of August 1983, ORDERED 1
t
- 1. That Ms. Stamiris' Motion to Reopen the Record on her Conten-tion 4 is denied.
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- 2. That the Applicant is direacd to undertake the crack monitoring program to which it has commiticd in its pleading responding to Ms. Sta-miris' motion.
FOR Tile ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTR ATIVE JUDGE Bethesda, Maryland 252
O Cite as 18 NRC 253 (1983)
LBP 83-51 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
1 Ivan W. Smith, Chairman l
Dr. Dixon Callihan Dr. Richard F. Cole l
l In the Matter of Docket Nos.STN 50 454 OL STN 50 455 OL (ASLBP Nc' 79-411-04 PE)
COMMONWEALTH EDISON COMPANY (Byron Nuclear Power Station, Units 1 and 2)
August 17,1983 The Licensing Board reports on its in camera receipt of information concerning pending investigations and inspections.
i l
ROLES OF PRACTICE: PRODUCTION OF NRC INFORMATION nursuant to 10 C.F.R.12.744(c) and the Commission August 5,1983 Statement of Policy - Investigations and Adjudicatory Proceedings 48 Fed. Reg. 36,358, the Licensing Board may receive exclusively in camera information from the Omce ofInspection and Enforcement and the Office of Investigations concerning pending inspections and investigations.
253
l l
i O
RULES OF PRACTICE: PRODUCTION OF NRC INFORMATION Although 10 C.F.R. f 2.744(c) refers only to NRC documents which may be presented for the presiding oflicer's exclusive in carr: era inspec-tion for relevancy and exemption under 10 C.F.R. s 2.790, the Commis-sion's August 5,1983 Statement of Policy, investigations and Adjudica-tory Proceedings, 48 Fed. Reg. 36,358, authorizes the presiding officer also to inspect non-documentary information in camera and exclusive of other parties.
MEMORANDUM AND ORDER On August 5,1983 the NRC Staff moved for reconsideration of the Board's July 1,1983 order (unpublished) requiring the parties to present evidence on pending inspections and investigations into llatfield Electric Company's quality assurance program at Byron. The Staff requested in-stead that the Bc,.ord receive, in camera and exclusively to the Board, explanations of the allegations which gave rise to the pending inspections.
We found authority for the exclusive in camera presentation in 10 C.F.R. % 2.744(c) (pertaining to documents) and in the Commission's August 5,1983 Statement of Policy - Investigations and Adjudicatory Proceedings, 48 Fed. Reg. 36,358 (pertaining to general information).'
Accordingly, on August 9 we received exclusively and in camera, by means of an information deposition, information from Region 111, Office of Inspection and Enforcement (IE). On August 10 we received exclu-sively and in camera more information from Region Ill and information from the OfTice ofInvestigations (01).
As a result of these presentations, we have determined that some of the pending inspections by the Office of IE are of no interest to the Board. All other pending IE inspections and all pending investigations by 01 are in early stages and respective evideniiary presentations now would not produce reliable results. Moreover, to receive an immediate 8
The Applicam and intervenors agreed that the Board may receive documents for its ciciusise consider.
anon but objected to an oral present4uon They argued that the only relesant regulauon prewntly m force. 4 2 744tc) permits cacluwve esathnauon of documents only %c ruled. hometer, that the Com-miwon authorned a broader mouiry by the Augus 5 polwy statement and that the polwp statement is.
m effect. the Commswon's genenc ma emti acuon under 4 2 758 espanding the regulauons tempo.
ranty to meet rnent deselopments m adjudications. The Commession noted the need for broader aa.
thority to review preiected miormauon pending the cornpletion ormsestiganons during adjudaanons 254
l evidentiary presentation on the pending inspections and investigations
'v would disrupt the IE inspectors and 01 investigators and would cause a 1
delay in the ultimate resolution of the respective allegations.
Reports of completed inspections and investigations will be provided to the Board and parties as soon as they are available for disclosure and will be considered as new information on a case-by-case basis.
The transcripts of the exclusive in camera presentations will be served on the public record when the respective inspections and investigations have been completed except where necessary to protect prisileged information, i.e., the identity of allegers. The NRC Staff and OfGee ofIn-vestigations are reviewing the in camera transcripts to determine which portions need not be conGdential and these portions will be released as soon as possible.
Accordingly:
(1) The Board's order of July 1,1983 directing the NRC Staff to pre-sent evidence on per. ding investigations in a reopened proceeding is vacated.
(2) The Board's request of June 21, 1983 to the OfGce of Investiga-tions for cooperation in the reopened prdceeding has been satisfied.
(3) The evidentiary record on the hearing reopened pursuant to the Board's order of June 21, 1983 was closed on August 12,1983 (Tr.
8021) and will remain closed until further order. The Board does not foreclose all possibilities that it might inquire again into the status of pending inspections and investigations.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Ivan W. Smith, Chairman ADMINISTR ATIVE L AW JUDGE Bethesda, Maryland August 17,1983 255 l
l O
Cite as 18 NRC 256 (1983)
LBP-83 52 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 8efore Administrative Judges:
Peter B. Bic '.h, 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 al.
(Perry Nuclear Power Plant, Units 1 & 2)
August 18,1983 The Licensing Board reopens its record on quality assurance on its own motion, in order to receive written filings con,:erning a document that was filed by an intervenor and that apparently indicates serious problems not covered in prior testimony, latervenor's motion to reopen the record is denied because the failure to introduce this evidence into the record at an earlier time was due to intervenor's failure to pursue its discovery rights in a timely fashion.
RULES OF PRACTICE: REOPENING Tile RECORD When the entire record has not been closed, the record on a single issue may be reopened on a showing that the motion to reopen is timely and raises an issue of substance. Ilow'ever, a motion is not timely ifit is based on information that should have been discovered prior to an evi-dentiary hearing.
256
O LICENSING BOARDS: OBLIGATION TO COMPLETE TIIE RECORD When an intervenor brings important information to light, the Board must inquire further in order to have a complete record even if the infor-
" ^
mation should have been filed at an earlier time. This action is partic-ularly appropriate when the new information casts new light on earlier testimony.
MEMORANDUM AND ORDER (Motion to Reopen)
On July 13,1983, Ohio Citizens for Responsible Energy (OCRE) filed a Motion to Reopen the Record on Quality Assurance. We consider the motioni to be untimely and are therefore denying it. liowever, OCRCs concern about the L.K. Comstock Engineering Company, Inc.'s (Comstock) use ofinspectors on tasks for which they were not certified, is of such potential safety importance that we consider this to be a gap in our record and will require the filing of further evidence in order to fill that gap.
1.
LEGAL STANDARD Many of the cases cited to us by the parties are addressed to motions to reopen the record of a case after an initial decision on all or a portion of the record has been written. Those precedents are not applicable here. Instead, we need only find that OCRE's motion is timely and that it raises an issue of substance.2 We need not find that it would change the result on an issue that we have not yet decided, even though findings of fact have already been filed.
I The motion is supported by sunnomer Alliance Inc., er at (sunnomer) and opposed by the stafr or the Nuclear Regulatory Commission (stafD and by Cleveland Electric liluminatmg Company (apphcant) 2 w,sconsm Ekrirar fo=rr Co. (Pomt Beach Nuclear P6 ant. Umt 21. ALAB-86. 5 AEC 34 (1972), ser oho Consumers Pp.cr Co (Midland Plant. Umis I and 2). LBP-83-50,18 NRC D2,248 (1983).
(
1 257
~
O II. UNTIMELINESS OF MOTION Despite the appropriateness of this somewhat more relaxed standard, the motion must be denied because Sunnower Alliance Inc., et al.'s (Sunflower's) motion is untimely. Although OCRE's request is founded on material it first obtained on June 22,1983, the reason for this late re-ceipt was entirely within OCRE's control. The information was received in response to a Freedom of Information Act (FOIA) request that OCRE filed on April 15, 1983, but that it could have filed months earlier.
The information OCRE obtained consisted of two documents that have been in existence on or before August 6,1982. Had OCRE Gled its Freedom ofInformation Act request earlier, or had it filed an appropriate request for documents as part o'r the discovery process in' this case, it could have obtained these documents well in advance of the hearing.
Had it done so, these documents could have been used for its cross-examination of applicant and staff witnesses. This would have clarified the issues in a fair and efHeient manner, providing the kind of assistance to this Board which parties must provide in order to fulfill their hearing responsibilities.
Under the circumstances, we cannot condone this untimely approach to discovery by granting the motion to reopen the record. Nevertheless, OCRE has brought new information to our attention. It raises questions concerning the completeness of our record and imposes on us the obliga-tion to satisfy ourselves that we understand the full implications of the matters OCRE has raised.
III. IMPORTANCE OF SOME OF tHE NEW INFORMATION When new information is submitted to this Licensing Board, we have the responsibility to review the information and decide whether it casta sufficient doubt on the safety of Perry so that its inferences must be logi-cally and reasonably addressed and resolved. We think that some of the issues brought to our attention by OCRE require our consideration and accordingly we will reopen the record for the limited purpose of receiving written evidence from the parties.
The most serious matter presented to us is an August 6,1982 letter from V.A. Eichler (Task Force Letter), leader of an internal Comstock 258
__________---___------___--_--------------------------------------------------------------J
O task force, setting forth "concerr.s as a result of the review of the equip-ment installation packages."3 At the outset, let us no:e that these are
.n
[
findings generated by Comstock as a result of a stLdy that it undertook c
.w and that these findings apparently have resulted in a substantial reinspec-Q,'.k tion program.* This reinspection program (whose design and findings j _
W*~s are not yet before us) appears to have found that the reinspected areas do not contain any "significant safety problems."5 Nevertheless, we agree with OCRE that the Task Force Letter indi-cates that "CEl's [ Cleveland Electric illuminating Company's) Control of Comstock... may be much worse than the testimony presented at the recent hearing would lead one to believe."' We share OCRE's con-cerns that applicant's testimony focused on Comstock's difficulty in ob-
-l taining appropriate numbers of quality control personnel but it did not reveal that the Task Force Letter found that only 6 of 22 people whose work was reviewed were certified to complete inspection documents in areas being inspected.' This is a serious finding, which Comstock appar-J l
ently accepted hs true.
?
The Task Force Letter summarizes the importance of its findings in
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the following concluding passage:
S considered invalid and the lack of certi6 cation of the individuals performing these l,
y
[Als a result of these findings, all inspections performed prior to 1/1/82 should be inspections should be addressed immediately. Additionally, all Megger/ Continuity Tests should also be considered invahd, as a result of the acceptance of test results p
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Q Also, all inspections presently being performed and all personnel certifications f ;1 should t*e reviewed at this time because of the fact that same 7 the inspectors h " Q[.
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3 Attachment to oCRE's Julv 13,1983 fmdmg (Task Force Letter).
h' -
- Task Force Letter at 4.
}
I 5 Affidavit of Gary R. Leidich, attached to Applicant's Answer to Motion to Reopen ( August 4,198" at 4. Vr Leidsch also states that the Comstock fmdmas "did not mclude any analysis of the mdividuals' I;
3-actual rpahfrations to perform their int.pection functions," but we are not impressed by this argument because they were required to be property certified for the functions they drd perform and the burden of proof is or the apphcant to estabhsh any afternative defense, such as quahfication m some other manner r
than the estabhshed certification procedure.
6 oCRE's Mohon to Reopen at 1.
7We note that at p. 26 in the testimony of Murray R. Edelman and Gary R. Leidich, dated M*v 2.
1983, fr. Ir.1031, the witnesses were asked to summarize "CEI's QA overview of the implementation of L K. Comstock's program for the period prior to November 1981." The succeeding question, at p. 30
't-
+
of the Wtimony, asked for an overview of the program since November 1981. The witnesses did not ad-dress stus apparent siericiency in either of their answers, even though they mentioned the posubly related i.
issue of a shortage of quahty controlinspectors.
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This area of deficiency also was omitted from the appbcant's response to the bard's request for a
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" blow by blo# of problems concerning Comstock. Given the rushed nature of this response, prepared
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[found?): as being not certified in specific activities are currently employed by L.K.
Comstock at the Perry Site.
The importance of the findings also is indicated by Comstock's response, which included the development of detailed checklists and the conduct of reinspections by certified inspectors.' The situation also led to a staff finding of a severity level IV violation, to the issuance by Comstock of two nonconformance reports that are still opcn," and to the issuance of a Corrective Action Request (CAR) by applicant.'2 Now that we have seen the Task Force Letter we more fully appreciate the meaning of the portion of our record containing the Notice of Viola-tion of March 16,1983. Without that ktter we were ill-equipped to ap-preciate the finding that:
i (Tlhe L.K. Comstock QA Wogram failed to provide control over deficiencies identi-fied by an internal LKC documentation task force,in that these deficiencies wcre ad-dressed in uncontrolled review checklists and internal LKC tetters.I3
/
We also are troubled, now that we appreciate what is at stake, by the en-forcement finding that "the LKC personnel indicated that they did not know if many of the generic deficiencies had been corrected, even though related work activities were continuing."8*
We understand the record to document that Comstock used uncerti-lied inspectors for months, without detection by its own quality control program, the applicant's audit program or the staff. There apparently has been no investigation to determine whether the supervisors who tolerat-ed this practice and others who knew ofit were involved in wrongdoing.
Then, when Comstock discovered this deficiency it made no formal report to applicant. Was this consistent with applicable procedures or codes? What did applicant know about the situation, and what did it do?
If applicant did know of the situation, why did it not insist that a noncon-formatice report be filed. Ifit did not know ofit, why did it not know of it?
It would appear that the reinspection burden imposed in response to the Task Force Report was substantial, even in relation to the ongoing 8 We must guess at this word because the nght hand margin of the document provuled to us chops oft a portion of the text.
' Afndavit or Gary R. Leidich, attached to apphcant's answer or August 4.1983. at 4.
If Inspection Report Nos. 5M40/83 06; 50-441/83-06 (March 16,1983).
IlLeidsch amdavit at 4.
13Id 33 Notice or Violation, fr. Tr.1619.
14 Report Nos. 50-440/8346(DE); 50-441/8346(DE) at 4 (entorcement report), fr Tr.1619.
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inspection burden. By the end of 1981, over 49% of the work on both units had been completed," including work in highly congested areas of the plant.'* Consequently, reinspection would be not only extensive but might, in some instances, prove to be quite dimcult. Without further evidence, we cannot judge either the adequacy of the reinspection 3i effort, the adequacy of the conclusion that serious safety problems were not overlooked, or the adequacy of the number of quality control inspec-lors empicyed by Comstock.
In light of the Task Force Letter, we find the following explanation of these events in the l'nspection Report to be cryptic and unsatisfacir):y:
Subsequent to this lindmg for lailure to proude control over the dentiencies found by Comstot-k task rc,recsl. L AC (Comstock) titade an assewment of the dc6aencies addrewed in the Task Force letters. based 9 their awcwment they stated that all generic denciencies had already been corrected. The Region 111 inspectors reuewed and discuwed the LKC awessment telated to the penetration and arcuit actnities.
The respettive generic denaencies appeared to have been corrected try.. appropri-ate procedure revisions).
Additionally, LKC management stated that the appropriale QA controls would be im reedutely initiated for all of the speane and generic dencienaes identined by the Task Force."
We do not find any discussion by the stafTofits reasons for concluding that Comstock has adequately addressed problems relating to the use of urwertified. inspectors. Indeed, we do not even have applicant's explana-tion of hov extensive this reinspection burden is, what physical dimcul-ties m;ght have to be overco~ e to inspect areas that may now be difficult m
to access, and whether there were some improper in-process inspections tiat may not be adequately remedied by reinspection.
In light of thc. Board's concerns, we are reopening the record to re-ceive documentary evidence and reasoned, documented arguments that respond to the Bard's questions.
IV. PROBLEMS OF SOME CONCERN to the motion to reoper is not evidence. As applicant forcefully points out, it is an unsigned, unattributed typed document provided to OCRE in answer to its FOI A request.
t O Tr.15D.
86Tr.1503.
O in pection Repon at 4. D' Tr 619 Q
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O Were this document entirely uncorroborated we would inquire no further. Ilowever, the document alleges: (1) the applicant's Quality
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Assurance Advisory Committee (QAAC) "was not doing meaningful reviews," (2) lindings from audits of Pullman and Comstock were not being processed in a timely manner, and (3) CEI has not done any sig-nificant trending of findings of CEI audits of contractors since 1980.
These allegations have in common that they are specific, serious and ap-parently not contradicted by anything in our record (applicant did not re-spond to these unsigned allegations).
The first allegation is corroborated by a Notice of Violation issued on July 25,1983.'" finding that the QAAC met only twice during 1981 in violation of its own written procedures - hence, lending credibility to the inference that the committee, which has since increased the frequen-cy of its meetings to once every other month, was not doing meaning-ful reviews during that particular time period.2" Applicant ' and stalT22 testimony described the QAAC in favorable 2
terms. StalTs testimony seems artfully drafted to conceal the question raised about the QAAC; it stated that from 1979 to 1982 the committee was " required to meet and document the results of their reviews and evaluations on a quarterly basis."2) Staff does not mention that the com-mittee did not meet as often as required during that perioa.
Our record does not disclose what, if any, significance should be at-tached to the QAAC 2* In particular, it would be helpful to know whether the staff person who wrote and retained the unsigned memorandum brought to our attention by OCRE is satisfied with the staffs present po-sition and whether that person has specific evidence that is not reflected in our record but bears on the degree of management commitment to quality assurance at the Perry plant.
'8 Attached to appinant's answer to the motion to reopen.
" Alredout or Cyril M. shuster, attached to Appfscant's Answer to oCRE Motion to Reconsider t August 4.1983) at 3.
20 Comparr /d at 2, which hsts documents that the QA AC reucus but does not document the nature or those reuews an sumcient detail for the Board to assess their seriousness 2 Testimony or Edelman and Leidich. fr. Tr.1031. at 23-24.
22 Testimony of NRC Res.on ill, fr Tr.1568,at 21-22 23Id at 22 24 Compare Affidaut or Cyril M. shusser at 2 3. proudmg the einuse that one or the 1981 meetings consisted of site tours by three or the members and that one or the i98i meci nas iook piace in ie2 j
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OTHER, LESS SIGNIFICANT, NEW INFORMATION V.
During the hearing, there was substanti:1 testimony concerning cable trays that were overfilled. OCRE now calls our attention to a document showing that in some instances applicant's engineers resolved noncon-formances about overfill by extending the walls of the tray, thereby per-mitting the overfill. OCRE also argues that this overfill is a violation of Article 318 of the National Electrical Code, which OCRE admits is not applicable to Perry.25 Applicant's answer on cable-fill is that it complies with the Interna-tional Cable Engineers Association (ICEA) standards and that Perry's design exceeds ICEA standards on heat loading.26 We have no reason to suspect the adequacy of applicant's answer to this allegation.
We also are unconcerned by some of the allegations in the unsigned memorandum submitted by OCRE. There is too little detail in the second paragraph in the memorandum for us to be concerned that a change in format of QA manager reports seriously affected manage-ment's ability to comprehend those reports. On this issue, OCRE owed us at least some explanation concerning why the quarterly reports on quality assurance that are already in our record (at the Board's request) are insufficient for management purposes.
Paragraphs 6 and 7,of the anonymous memorandum do not concern us because they relate to another company, and our prior rulings make it clear that we must reach a preliminary determination that control of Comstock was lost before issues about another company may be raised.
We are not prepared to make such a finding now, preferring to give the applicant and staff an opportunity tq resolve the Board's uncertainties.
ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 18th day of August 1983, ORDERED
- 1. Ohio Citizens for Responsible Energy's July 13, 1983 Motion to Reopen the Record on Quality Assurance is denied.
- 2. The Atomic Safety and Licensing Board reopens the record on qual-ity assurance to receive the filings authorized in this Order.
,,y 25 oCRE's Mouon at 2.
r 26 Le@ch Affidavit at 3.
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- 3. Cleveland Electric illuminating Co., et al. (applicant) shall have 30 days from the issuance of this decision to respond by submitting c"i-dence and arguments responsive to the concerns of the Atomic Safety and Licensing Board, as set forth in the accompanying memorandum.
Applicant may address the question of whether a further evidentiary hearing is necessary.
- 4. The Staff of the Nuclear Regulatory Commission (staf0 may re-spond to this Board's concerns within !0 days from the date the applicant files its response, pursuant to paragraph 3 of this order.
- 5. Intervenors may respond to the Board's concern within 10 days vf the date they receive stafl's response, or within 15 days of the time that they receive applicant's response if they have been promptly notified that the staff will not respond.
- 6. Motions for reconsideration of this decision must be filed within 10 days ofissuance of this decision.
- 7. Deadlines falling on non-business days are automatically extended to the next business day.
THE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTR ATIVE JUDGE Jerry R. Kline ADMINISTR ATIVE JUDGE Glenn O. Bright ADMINISTR ATIVE JUDGE Bethesda, Maryland 264
O Cite as 18 NRC 265 (1983)
LBP 83-52A
.c m
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
B. Paul Cotter, Jr., Chairman Dr. Richard F. Cole Gustave A. Linenberger in the Matter of Docket Nos. 50-458 OL 50 459 OL (ASLBP No. 82 468-01 OL)
GULF STATES UTILITIES COMPANY, et af.
(River Bend Station, Units 1 and 2)
August 26,1983 In this memorandum the Licensing Board rules on the admissibility of contentions in this operating license proceeding and establishes proce-dures for further proceedings.
LICENSING PROCEEDINGS: FINANCIAL QUALIFICATIONS The Commission eliminated the review 'of financial qualifications from power plant licensing hearings in part because it could not find any reason to consider, in a vacuum, the general ability of utilities to finance the construction of new generation facilities. Only when joined with the issue of adequate protection of the public health and safety does this issue become pertinent.
A 265 4
O RULES OF PRACTICE: EFFECTIVE COMMISSION J
REGULATIONS Contentions attacking the Commission's regulations are prohibited unless the petitioner can make a primafacie showing of"special circum-stances" such that applying the regulation in the specific case would n'ot serve the purposes for which it was adopted.10 C.F.R. 6 2.758 (1983).
RULES OF PRACTICE:' EFFECTIVE COMMISSION REGULATIONS The mere allegation of financial probierns, three unrelated inspection reports, and an openly requested deviation from standards do not consti-tute a safety problem so as to permit a finding of"special circumstances" as required by 10 C.F.R. % 2.758 for the waiver of the prohibition of 10 C.F.R. 6 50.40(b) barring the rev;ew of financ;al qualifications in licens-ing hearings.
RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS Where intervenors have not identified a single chemical or ellluent of any kind that might interact with some unspecified level or quantity of ionizing radiation, contentions allegir.g that emissions may cause health hazards either alone or in combination with industrial effluents already present in the area's air and water are too vague and lacking in specificity to permit meaningfullitigation.
EMERGENCY PLANNING The flexibility in the 10-mile EPZ regulatory requirement does not contemplate including so remote a chain of speculative circumstances as that posited by intervenors in a contention alleging that inmates of a prison located 18 miles from the plant might effect a mass. armed escape and disrupt the orderly implementation of the emergency plan.
MEMORANDUM I.
INTRODUCTION
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This memorandum rules on the admissibility of contentions and other matters considered at a prehearing conference in the captioned proceed-266 l
9 ing held pursuant to 10 C.F.R. f 2.751a (1982) and this Board's un-published orders dated April 5 and April 29,1983. The conference took
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place on June 14,1983 in Baton Rouge, Louisiana and addressed the fol-lowing subject matter: (1) the admissibility of contentions filed by the
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state, corporate, and individual petitioners; (2) the status of procedural matters such as the issuance dates of documents needed for hearing, consolidation of any contentions admitted, and a schedule for any dis-covery needed; (3) the status of River Bend Unit 2 and its relationship to the proceeding; and (4) any other matters appropriate to the expedi-tious conduct of the proceeding. This decision has been deferred pending receipt of additional information bearing or, a contention concerning the Louisiana State Penitentiary at Angola. That information was received on August 15,1983.
II. PROCEDURAL IIISTORY The proceeding arises out of petitions to intervene in the application by Gulf States Utilities and Cajun Electric Power Cooperative (Applicants) for a license to possess, use, and operate two boiling water reactors known as River Bead Station Units I and 2. The reactors are located in West Feliciana Parish three miles southeast of St. Francisville on the Mississippi River and approximately 24 miles north-northwest of Baton Rouge. Each reactor is designed to operate at a power level of 2,894 megawatts thermal with an equivalent electrical output of approxi-mately 936 megawatts. Construction was authorized on March 25,1977.
Approximately 71% of Unit I has been built with construction comple-tion scheduled for April 1985. Applicants have halted construction on Unit 2 which is less than 1% complete. Tr. 25-26.*
Notice of the applicants' request for a facility operating license was published on September 4,1981 in the federal Register. 46 Fed. Reg.
44,539. Petitions to intervene were filed by the Louisiana Consumers League, Inc. (LCL), Louisianans for Safe Energy, Inc. (LSE), and Gretchen Reinike Rothschild, individually. The two corporate petitioners and the single individual petitioner will act jointly in this proceeding and will be referred to jointly herein. Tr. 7-8,130. The State of Louisiana also petitioned to participate both as a party to the proceeding, and as an interested state pursuant to 10 C.F.R. % 2.715 (1981).
The Board found all petitioners to have standing in rulings issued February 10 and July 30,1982 (unpublished), holding that they could
'All transcnpt citations are to the transcnpi of the prehearing conference held June 14.1983 m Baion Rouge. Louimana 267
be admitted as parties to the proceeding upon filing an admissible contention. Louisiana was admitted as an interested state in the February 10 order.
The joint petitioners filed 14 amended and supplemerted contentions dated May 31,1983 which supplanted the first filing of 12 contentions dated December 12,1982. The amended filing w4s objected to by Appli-cants as untimely. Following a stipula; ion among the joint petitioners, Applicants, and Staff, Applicants' objection as to timeliness was limited to contentions 13 and 14. Tr. 9-10,12.
On March 15,1983, the State of Louisiana filed six contentions which supplanted an earlier filing. All but the first of the State's contentions clearly parallel contentions in the amended filing by joint petitioners.
For pt rposes of this decision, the joint petitioners' contentions will be discussed with a cross-reference to the pertinent State contention.
In this memorandum we find that all petitioners have filed at least one admissible contention and admit LCL, LSE, and Ms. Rothschild (hereinafter referred to as " Joint Intervenors") and the State of Louisi-ana as parties to this proceeding pursuant to 10 C.F.R. { 2.714 (1983).
In light of the admission of Louisiana as a party under section 2.714, resolution of any procedural problems arising out ofits status as an inter-ested state will be deferred pending a report on discussions among counsel. Tr. 34-36.
III. DOCUMENTS NEEDED FOR HEARING At the prehearing conference, counsel for the Staff reported that Staff documents necessary to the hearing would issue as follows:
- 1. Draft Safety Evaluation Report (SER): June 1983 (70% com-plete - 147 open items);
- 2. Final SER: December 1983 (a, considerable number of open items);
- 3. First SER Supplement: May 1984;
- 4. Draft Environmental Statement (DES): January 1984; and
- 5. Final Environmental Statement (FES): June 1984. Tr. 22-23.
Staff counsel represented that with the exception of emergency planning matters and some minor deficiencies in the draft SER discussion of the liquid pathway, the draft SER and the DES are complete with respect to the subject matter of the parties' contentions. Tr. 24.
Counsel for Applicants reported that the offsite emergency plan re-quired pursuant to 10 C.F.R. 6 50.47 (1982) is scheduled to issue in or about December 1981 Tr.10,38-39.
268
IV. CONTENTIONS E
A, Contentions Resolved by the Parties A number of contentions were resolved by unilateral or jo the parties following discussions and negotiation. The pa into two stipulations which the Board hereby approves a follows:
- 1. Joint Petitioners will withdraw and not seek to again rais the matters encompassed by their Contentions Nos. 2. 3 5 6 and fled in "The First Amended and Supplemented Contentions by enti-Inc., and Gretchen Reineke Rothschild,"
1983. Applicants and State agree not to obsct to the admissibi of Joint Petitioners' Contention 12 related to the ef the River Bend Station. If the State of Louisiana wi which is contained in the Supplemental Petition of the State of Lo dated March 15, 1983, Contention 12. Tr.101-02.the Joint Petitioners will at that tim
- 2. Contentions arising out of the oft-site emergency plan, schedu in December 1983, shall be filed no later inan 60 days after servi site emergency plan on Joint Intervenors. Such contentions sh ce of the off-to any special showing as a prerequisite to the Board's consideration admissibility. Tr. 10,38-39,103.
ir The latter stipulation efTectively refers consideration of Stat tion 2 and Joint Intervenors' Contention 8 concerning the offs emergency plan with the exception of the Angola prison question d cussed below.
In addition, the parties withdrew several contentions during course of the prehearing conference. Joint Intervenors withdrew C tion 9, " Potassium lodide Tablets" and Contention 13, " Foss Thermal Discharge." Tr.100-01. The State of Louisiana withd Contention I, " Transuranic wastes and fuel cycle. activities" (T S-3). Tr.125-26.
The parties agreed further that consideration of Joint Interven Contention 11 and State's Contention 5, " Construction of Rive Unit 2," should be deferred pending a decision by Applica resumption of construction. Applicants state that the construction de sion will be made in 1985. Tr. 25-30,102-10. The Board approves the agreement and hereby defers consideration of the contentions concern-ing construction of Unit 2 until 1985.
269
B.
Disputed Contentions 1.
Contention 1: Financial and Technical Qualifications (No Comparable State Contention) a.
Positions ofthe Parties In essence this contention alleges that Applicants' " financial status has changed substantially for the worse" resulting in cost-cutting mea-sures which threaten the public health and safety. Tr. 66-75. Joint Inter-venors cite three NRC Inspection and Enforcement reports and a memo-i l
randum request to " limit or reduce" certain requirements for one-half inch tubing and supports as evidence of potentially harmful cost cutting.
Consequently, to consider this contention Joint Intervenors seek an ex-ception from the prohibition in 10 C.F.R. E 50.40(b) (1983) which pro-vides in pertinent part:
i 50.40 Common standards.
In determining that a license will be issued to an applicant, the Commission will be guided by the following consideratiors:
(b) The applicant is technic.lly and finan ally qualified to engage in the proposed activities in accordance with the regulations in this chapter. Howver, no consideraten offinancial qualfkotions is necessaryfor an electric utihty appikantfor a bcensefor a pro.
duction or utilcatwnfacility of the ope describedin.. f 30.22. (Emphasis added).
Section 50.22 describes Class 103 licenses for facilities such as those at issue here.
This contention constitutes an attack on a Commission regulation.
Such attacks are prohibited unless the petitioner can make a primafacie showing of "special circumstances" such that applying the regulation in this case would not serve the purpose for which it was adopted. The prima facie showing must be made by affidavit.10 C.F.R. 6 2.758 (1983).
Stephen M. Irving, counsel for Joint Intervenors, filed an affidavit with their May 31 amended contentions. The affidavit states that the cost of constructing the facilities in question has been underestimated, the rate of growth of Applicant Gulf States' sales has declined, and vari-ous reports concerning construction all point to hstmful cost cutting caused by Applicants' alleged financial situation. However, at oral argu-ment Joint Intervenors stated that they supported, and Gulf States has received, a fair rate of return. They ascribed Gulf States' allegedly
" strapped" financial condition to prior management but expressed satis-faction with present management and noted that new people had been brought in whose technical qualifications Joint Intervenors were not
,. 1 270
O challenging. Nevertheless, Joint Intervenors argue that Applicants simply cannot raise the money necessary to build the plant to meet the
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standards set out in NRC regulations. Tr. 67-74.
1 Applicants strongly disagree. They deny the existence of any financial difficulty. In a pleading dated April 15, 1983, Applicants argue that:
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(1) Joint Intervenors fail to show the "special circumstances" required v
by section 2.758; (2) Joint Intervenors' argument was specifically reject-ed by the Commission in eliminating financial qualifications from hearings; and (3) at least one other licensing board has rejected a similar argument under stronger circumstances, Commonwealth Edison Co.
(Byron Station, Units.1 and 2), Docket Nos. STN 50-454-OL and 50-455-OL (August 2,1982) (unpublished Memorandum and Order).
Applicants urge that the instances of deficiencies cited are no more than e
the minor noncompliances to be expected in a >roject the size of River Bend. Applicants also note that an aflidavit by counsel does not meet the prima facic showing requirement of section 2.758. Tr. 66-67. In a pleading filed April 15,1983 at pp. 810, NRC Staff agrees with Appli-cants that Joint Intervenors have not made the necessary showing of "special circumstances" to warrant a waiver of the prohibition against challenging Commission regulations.
b.
Decision on Contention I The Commission eliminated the review of financial qualifications from power plant licensing hearings in part because it could not " find any reason to consider, in a vacuum, the general ability of utilities to fi-nance the construction of new generation facilities. Only when joined with the issue of adequate protection of the public health and safety does this issue become pertinent." 47 Fed. Reg. 13.751 (1982). The Commission could find no " demonstrable link between public health and safety concerns and a utility's ability to make the requisite financial showing." /d.
The Commission addressed the general subject in more detail recently i
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in reviewing a Director's Decision involving a similar allegation concern-ing an operating plant. In Maine ranAce Atomic Power Co. (Maine Yankee Atomic Power Station). CLI-83-21.18 NRC 257 (1983), the Commission reiterated its observation about the absence of inevitable linkage between financial problems and " corner cutting" on safety and stated:
Thus, even had the Commission retamed its financial quah6 cations resiew w7 requirements, a showing that Maine Yankee was undergoing unancial dimculties L
would not by itself require that the Commission halt operations at that plant. On the
G other hand. allegations that defects in safety practices have in fact occurred o'..e imminent would of course form a possible basis for enforcement action, wt
.er or not the root cause of the fault was Gnancial. In the case at issue Safe Power has of.
fered no evidence nor made any claim of actual hazards at Maine Yankee. Indeed, Safe Power's petition svaports a view that Maine Yankee has continued to seek and receive from its " prime sponsors" or otherwise the funding which it needs to con-duct its operations in a safe fashion. The Director did not abuse his discretion in refusing to take enforcement action based on mere speculation that Gnancial pres-sures might in some unspecified way undermine the safety of Maine Yankee's operation.
In summary. Safe Power's petition demonstrated no safety-related concerns which might require immediate enforcement action, and there are procedures pro-posed or already in place to deal in a timely manner with the Gnancial concerns raised by Safe Power's allegations.
/d. at 160,162 (footnote omitted). While we note that the rule amend-ment eliminating financial qualifications is under review in the D.C.
Circuit, New England Coalition on Nuclear Pollution v. NRC, No. 82-1581 (filed May 24, 1982), and that the Commission exercised its discretion to direct the Staff to inquire further into the Maine Yankee situation, the basic point remains. There must first be a showing of a legitimate safety concern.
There has been no showing, even primafacie, of what could be called a safety problem in the work of constructing the River Bend Plant. Joint Intervenors' citation to three inspection deficiencies in a multi-billion dollar project hardly establishes such a link. Nor does a request to devi-ate frorn standards to reduce costs for a single categosy of tubing add any greater weight to the allegation. Cost cutting per se is not harmful.
The mere allegation of financial problems, three unrelated inspection reports, and an openly requested deviation do not constitute a safety problem. In short, the Board can find no safety problem, no financial problem, nor any link between the two.
Consequently, the special circumstances required by section 2.758 have not been shown, and the prohibition of section 50.40(b) cannot be waived. The contention will not be admitted.
2.
Contention 4: Liquid Pathways Contention 14: Synergistic Effects (State Contention 3) a.
Positions ofthe Parties State's Contention 3 contains the elements of Joint Intervenors' Con-tentions 4 and 14. As noted, Applicants object to joint Intervenors' Con-tention 14 as untimely. The Commission has a general policy of con-272
solidating contentions and intervenors whenever reasonably possible in the interests of the emcient conduct of our proceedings. Statement of
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Policy on Conduct of Licensing Proceedings, CLI-818,13 NRC 452,455 g
(1981). Accordingly, the Board finds that a ruling on Applicants' motion
-2 would not affect the uhimate result. The motion is denied.
The Intervenors' basis for the liquid pathway contention is the possi-e bility of radioactive materials finding their way into surface and ground waters that ultimately feed into the Mississippi River and certain regional aquifers and finally into drinking water supplies derived from these sources. The basis proffered by the State represented further that its con-cern includes the possibility that the effects of such radioactive materials combining with already present industrial effluents may present synergis-tic health hazards.
Joint Intervenors alleged further that Applicants have not established
" acceptable criteria" for judging the acceptability of the results of any studies. No basis was provided.
Joint Intervenors' Contention 14 charges that Applicants have failed to adequately assess the synergistic and/or cumulative effects of the ionizing radiation to be released from River Bend: (1) into the Mississippi River water in combination with the chemical emuents pre-sently existing therein; and (2) into the air in combination with the chemical emuents presently existing therein. No basis was provided.
The State and Joint Intervenors, in oral argument, emphasized the presence in the air and in the river of industrial emuents from heavily concentrated coal and petrochemical plants, questioned the applicability of Applicants' dye study in the River to the release of radioactive liquids, and questioned whether an earlier performed dye study would be applicable currently. Joint Intervenors argue that the area has one of the highest cancer rates in the country and that the addition of radioac-tive emissions to existing air and water b tne emuents will have a harm-9 ful health impact greater than the sum of harmful consequences of all in-dividual emuents. Tr. 76-78, 80-82, 84-85, 112, 124.
Applicants and the Staff opposed all three contentions becauset liquid pathway studies had been performed by the Applicants and ap-proved by the Staff; nothing was cited to show anything wrong with Ap-plicants' and Stafi's conclusions; and, no basis was given for believing that any specific ambient chemical emuents would react synergistically with radioactive releases. Tr. 82-83, 85,117.
b 273
O b.
Decision on Contentions 3 and 14 Sources of radiation and allowable emissions of any kind arc governed by 10 C.F.R. Part 20 (1983). These standards are mandatory and must be met by operators of facilities such as Applicants.10 C.F.R. % 20.2 (1983).
Against this background, all Intervenors argue that emissions, pre-sumably within the mandatory limits imposed by Part 20, may cause health hazards either alone or in combination with industrial efGuents al-ready present in the area's air and water as a result of the heavy concen-tration of industrial plants already in operation. Yet, despite repeated queries from the Board, Intervenors did not identify a single chemical or efDuent of any kind that might interact with some unspeciGed level or quantity ofionizing radiation.
Moreover, to the extent that the contentions seek to address the long-term effects of low-level ionizing radiation, they are inadmissible. Such effects are presently the subject of generic study.
The Board Gnds all three of these contentions to be too vague and lacking in specificity to permit meaningful litigation. General Electric Co.
(G.E. Morris), No. 70-1038-OLA (June 4,1980) (unpublished Order Ruling on Contentions of the Party). Accordingly, the Board denies the admissibility of State's Contention 3 and Joint Intervenors' Contentions 4 and 14.10 C.F.R. ( 2.714(b) (1983).
3.
Contention 7: Old River ControlStructure (State Contention 4) a.
Positions of the Parties The Old River Control Structure is a barrier approximately 70 miles north of Baton Rouge, maintained by the U.S. Army Corps of Engineers to prevent the Mississippi River from diverting some portion ofits flow into the Atchafalaya River. All Intervenors contend that Applicants have not adequately considered the effect of a failure of the structure on the safe operation of the plant. They contend that the structure's failure will result in a switch of the Mississippi River to the present course of the Atchafalaya River and thus: (1) the volume of the Mississippi River will be greatly diminished; and (2) there will be an increase in salt content in the waters due to the intrusion of more saline waters from the Gulf of Mexico.
The State raised this matter because it had received " virtually no treat-ment in the FSAR" and the State wanted the Board to know of this "potentially significant event." Tr. 92. In its Gling of March 15,1983 at 7, the State stated as part ofits basis that 274
Engineer Ralph Kazmann of Louisiana State University estimates there is a 50 50 chance that the Old River control structure will fait during the next 20 to 40 years, corresponding roughly to the operating life of River Bend Station.
[
Applicants have failed to adequately consgler the consequences of such failure on
? ' g' the safe operation of River Bend Station, Unit 1, specincally, the effect of a reduced now and heavy siltation of the Mississippi River on the 6take of cooling water, on the relative increase in thermal pollution resulting from the discharge of cooling r,
water into a reduced volume of river water, and the possible effect of salt water in-trusion into cooling and other safety and nonsafety related systems uti:izing Mississippi River water.
In its filing of May 31, 1983, Joint Intervenors offered the following in support of the proposed contention:
Continued operation of the Rives Bend Station after the decrease in volume of the Missi<sippi River water and increase in saft content therein will cause additional pit.
ting of pipes, additional amounts of metal salts and debris in the pipes, and structural weakness. The Applicants have not adequately considered these events on the exist-ing safety related equipment nor for such equipment to be added as a result of post-TMI requirements.
/d. at 5. Joint Intervenors and the State conceded that there is probably s
no immediate safety concern occasioned by the failure of the Old River Control Structure. Tr. 90-91, 93. Joint Intervenors also recognize that emergency cooling water for the reacters is provided by wells. Tr. 90.
Nevertheless, both Intervenors expressed concern that failure of the Structure could adversely affect further plant operation. Tr. 91,93-94.
1 Both Applicants and Staff would have the Board deny admission of
.these contentions because neither contention provides a basis for chal-
.lenging the ability of Applicants to safely shut down the plants and main-tain them in a safe shutdown condition should the Old River Control Structure fail. Applicants state that the design of the River Bend Station 1
is such that it places no reliance upon Mississippi River Water as the ulti-mate heat sink for the Station. It has sufficient storage capacity on site to
[
provide and maintain safe shutdown for an extended period. Makeup to i
this system is by deep well groundwater. Applicants' April 15,1983 re-sponse at pp. 24-27. Tr. 96-98.
Absent a basis for a challenge to safe operation, they allege that no valid safety concern exists. However, neither Applicants nor Staff refut-f ed the statement that there is a 50% probability of failure of the Old E
River Control Structure within the lifetime of the plant.
t i
t
.).
,b.
w eg.-
4 3
s 275 i
b.
Decision on Contention 7 The Board is persuaded that failure of the Old River Control Structure
~
does not preclude saf::ly shutting down the plant, and hence that there will be no immediate safety problem. However, the concerns of both In-tervenors about further facility operation under altered river flow and salinity conditions deserves further consideration. This is especially true absent a clear statement by Applicants of their intent with respect to fur-ther facility operation subsequent to the hypothesized failure of the structure.
The Board perceives the following unanswered questions as bearing upon both safe operation and the cost-benefit balance:
- 1. What is the likelihood of failure of the Old River Control Struc-ture over the next 40 years?
- 2. What are the current plans for repair and/or replacement of the Old River Control Structure in the event of failure?
- 3. In the event it is necessary, what are the estimates of time re-quired to accomplish repair or replacement of the Old River Control Structure?
- 4. In the event of failure, what are the current plans of the Appli-cants relative to plant operation?
- 5. What are the long-term implications for the River Bend Station from the cost-benefit and safety viewpoints of failure of the Old River Control Structure?
Accordingly, the Board hereby consolidates and rewords the two con-tentions as follown in the event of failure of the Old River Contre! Structure, Appli-cants have not considered the public health, safety and environ-mental impacts of further facility operation under altered river flow and salinity conditions.
State Contention 4 and Joint Intervenors' Contention 7 are consolidated, reworded, and admitted as stated above, in accordance with 10 C.F.R. f 2.715a (1983).
4.
Contention 8 (Partial): Angola Prison Evacuation (No State Contention) a.
Positions of the Parties While agreeing to defer other offsite emergency plan issues, the parties argued whether the Angola prison issue is admissible because the facility is located beyond the 10-mile Emergency Planning Zone (EPZ). Tr.10.
. ~
276
gjfg I ward, gency evacua-e no r Gsupon ntend that the ffsite emer 8,
tion plan hould include the Louis o
uct' W We are on a O
State and Joint intervenors co over 4,000 inmatesnorthwest of (3 squehanna iles
)y, shg op, n the facility housesr approximately 18 air mhree or a Pending s
i plantation farm type pr so, bend in the Mississippi R v only The facility is surrounded on t i
mp." It has12,1983 ide by an " impenetrable swa48; Letter dated August
- I#81 the River Bend Station. river and on the fourth sand t
80la by o
j,
- 00. the i and Arkansas n to be located on the same sfive miles one entrancefrom Charles R. Davoli to 8'IVe serie3 argument shows the prisoRiver Bend, approximatel d by 10 C.F.R. s 50.47 (19 Plan drawn ulatory re-Emergency plans are governet part that ower plants shall consistEPZ shall 0 c,p,p*
'f spCCula.
state borders.
50.47(c)(2) providesin pertinenathway EPZ for nuclear p nd the ingestion pathwayexact size and configur
- r falling d in 7
Generally, the plume exposure p 10 miles (16 km) in radius a50 miles (80 km) reactor shallbe determine
'O Cd.
d by blities as they are affectes routes, and particular nuclear powerresponse needs and of an area about consist of an area bout a
of the EPZs surrounding arelation to local emergencyas de in a radiological "Cd as s is to protect the public EG-0654 Rev.
such conditions jurisdictionalboundaries.
50.47(a)(1) (1983) and NURdiological Emerge l
The purpose f emergency p an r Plants."
'8 and Evaluation f Ra o
o in Support of Nuclear Poweulatio emergency. See 10 C.F.R.
dard quali-1, " Criteria for Preparation Response Plans and Preparedness ry for planning officials toEPZ radius would fied only by the flexibility necessaThe 10 es-that went into h n Cahfornia same specific considerations radius. See generally, Sout erGen specific circumstances. Any d 3),
have to be based on the as 10 mile nts a distinct i
tablishing the gener c Edison Co. (San Onofre Nuclear 177 82 (1982).h t the Angola prison preseha D'
LBP 82-39,15 NRC 1163,1 Joint intervenors not sug-U hy o the River Bend plant t They do River Bend emergency plan.
urge that the f
ors act en variable in the demograp 10-mile EPZ.Tr. 53. Intervenuld cau sion of the prison in the ld present a danger to th cisville, and gest enlargement of theaccident at River Bend wo argue that the masse to escape" which "wouwho live in the areain report of an nities." Tr. 49. Intervenors rather and the prison population d the plant and Baton Rougeeast Lo other surrounding commu outside road out of the prisonwould travel south towarward the Miss the prisoners than away from it to
./
277
=
E
- 3
.E-Therefore, the emergency plan should provide for additional prison security and mechanisms to guarantee the inmates a way to get out. Tr.
50.
ksM Applicants oppose admission of the contention, principally on the A.
grounds that control of the Angola prison comes under the jurisdiction
%fg of the State, is beyond the jurisdiction of the Licensing Board under ap-plicable NRC regulations and their interpretation, and that the escape scenario is highly speculative and implausible. Tr. 54-59. Staff opposes the contention on the grounds that the regulation does not requ:re evac-uation of facilities beyond the 10-mile EPZ, that the posited rebellion is speculative and without basis, that the prison situation is the responsibil-ity of the State in the exercise ofits police power, and that an escape is not a radiological threat and, therefore, not within the Nuclear Regula-tory Commission's jurisdiction. Tr. 60-61.
The question was raised during the prehearing conference whether the State had an emergency evacuation plan for Angola. Counsel for the State agreed to determine if a plan existed. Tr. 59-60. Thereafter, a letter dated August 12, 1983 from Charles R. Davoli, Assistant Secretary, Louisiana Department of Corrections to William H. Spell, Administrator, Louisiana Nuclear Energy Division, was filed. The letter
~_
confirms that a contingency plan for Angola, including plans for total evacuation, has been completed. Mr. Davoli stated that the plan covered
^i "all eventualities including attempted escape and the necessity for rein-e,,
forcement of personnel at the prison." Mr. Davoli stated further that the Department of Corrections is confident that it can prevent any mass es-capes and implement any contingency plans related to an cmcrgency at River Bend. He further requested that the State's emergency plan in-
- f clude notice to the Department of Corrections of an emergency at River Bend requiring action by the Department and that plan development be
,i coordinated with the Department as to any required details.
b.
Decision on Prison Contention The apparent thrust of Joint Intervenors' contention is not that the in-mates of Angola might be exposed to a radiological threat but rather that they would panic in the event of a radiological emergency at River V
Bend, effect a mass, armed escape from the prison, and disrupt the orderly implementation of the emergency plan. Tr. 51. To accept such a contention we must assume a mass panic by people 8 miles outside the
- _ 'j a
1 EPZ and 13 miles from the cause of the assumed panic; we must assume Ql.
that prison officials will be unable to control the inmates; we must assume the inmates will overpower all prison officials and escape; and, j
. Ars
?St y
s M;.e 278 l
?
O finally, we must assume that the panic-stricken inmates will flee toward, rather than away from, the cause of their panic. We have no facts upon which to base these assumptions concerning inmate conduct, and we are I
not inclined to speculate. Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), Nos. 50-387 and 50-388, slip. op, at 4 (July 7,1981) (unpublished Memorandum and Order on Periding Motions and Requests).
Section 50.47 is concerned with protection from radiological emergencies. No such emergency is claimed to exist at Angola by intervenors, and we can perceive none. Consequently, on its face, the contention does not fall within the ambit of the regulation.
Nor can we see any adequate basis for finding that a speculative series of events might disrupt the implementation of an emergency plan drawn up for a 10-mile EPZ. The flexibility in the 10 mile EPZ regulatory re-quirement does not contemplate including so. remote a chain of specula-tive circumstances as that posited by Joint Intervenors.10 C.F.R. 5 2.714(b) (1983). The assumed chain of events is a matter falling within State jurisdiction and is beyond ours. The contention is denied.
V.
SUMMARY
OF DECISIONS ON CONTENTIONS I
The contentions of Joint Intervenors have thus been resolved as follows:
- 1. Contention 1, Financial and Technical Qualifications -
Denied;
- 2. Contention 2, Environmental Qualifications - Withdrawn;
- 3. Contention 3, Prematurity of Application - Withdrawn;
- 4. Contention 4, Liquid Pathway Issue - Denied;
- 5. Contention 5, Generic Safety Issue - Withdrawn; j
- 6. Contention 6, Cracking of Materials - Withdrawn;
- 7. Contention 7, Old River Control Structure - Admitted as restated;
- 8. Contention 8, Emergency Response Plan - Deferred, except for the portion of the contention concerning Angola prison which is denied;
- 9. Contention 9, Potassium Iodide Tablets - Withdrawn;
- 10. Contention 10, Funds for Premature or Early Decommission-ing - Withdrawn;
- 11. Contention 11, Censtruction of River Bend Unit 2 - Deferred;
- 12. Contention 12, Asiatic Clams (Corbicula leana) - Admitted;
- 13. Contention 13, Fossil Plaut Thermal Discharges -
Withdrawn, and 279 mm t
r
l 1
8
- 14. Contention 14, Synergistic Efrects - Denied.
u..
The contentions of the State of Louisiana have been resolved as follows:
- 1. Contention 1, Table S 3 - Withdrawn;
' ' ^
- 2. Contention 2, Emergency Plan - Deferred;
- 3. Contention 3, Liquid Pathway - Denied;
- 4. Contention 4, Old River Control Structure - Admitted as O
restated; y
- 5. Contention 5, Unit 2 Construction - Deferred; and H
- 6. Contention 6, Asiatic Clams - Admitted.
VI. FURTHER PROCEEDINGS 1.
Discovery The parties are directed to begin voluntary informal discovery immedi-ately on the Asiatic Clam and Old River Control Structure contentions.
Counsel for Intervenors is directed to report to the Board on or before November 1,1983, whether formal discovery is necessary. If the Board determines based on the report that formal discovery on either conten-tion is necessary, a schedule will be established promptly for completing it.
2.
Emergency Plans Pursuant to discussions at the prehearing conference, the parties are directed to meet and confer immediately on the emergency plan present-ly scheduled for issuance in December 1983. Counsel for Joint Interve-nors is to notify the Board promptly when the emergency plan is received. The purpose of the conference among parties is to resolve any questions Joint Intervenors may have about the adequacy of the plan.
The parties should confer as often as needed. Forty-five days after the plan is received by Joint Intervenors, counsel for Staff, on behalf of the parties, shall report the results of the conference and whether Joint In-tervenors still find it necessary to file contentions concerning the plan in accordance with the stipulation reached at the prehearing conference.
Should contentions be filed, a prehearing conference on their admissibil-ity will be held promptly, a ruling issued, and a discovery schedule established.
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280
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Vll. CONCLUSION Joint intervenors (LCL, LSE, and Ms. Rothschild) and the State of 9
Louisiana are admitted to this proceeding as party intervenors, based on the admission of the contentions concerning Asiatic Clams and the Old River Control Structure." The Asiatic Clam contentions of Joint Inter-i venors and State are hereby consolidated and renumbered as Contention I and the Old River Control Structure contentions, as reworded, are con-solidated and renumbered as Contention 2. Any additional contentions admitted will be numbered consecutively starting with Contention 3.
All other matters presented by the parties, but not addressed in this memorandum have been considered and found either to be without merit or such as not to alTect the result reached herein.
Tile ATOMIC SAFETY AND LICENSING BOARD B. Paul Cotter, Jr., Chairman ADMINISTR ATIVE JUDGE Richard F. Cole ADMINISTR ATIVE JUDGE Gustave A. Linenberger ADMINISTR ATIVE JUDGE Dated at Bethesda, Maryland, this 26th day of August 1983.
l
- Pursuant to 10 C F R. 4 2.714a. this is an appealable order l
281 6
l Cite as 18 NRC 282 (1983)
LBP 83 53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Jud9es:
Charles Bechhoefer, Chairman Dr. Frederick P. Cowan Dr. Jerry Harbour in the Matter of Docket Nos. 50-329-OM&OL 50-330-OM&OL (ASLBP Nos.78 389 03 OL 80-429 02 SP)
CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2)
August 31,1983 The Licensing Board grants one motion to quash subpoenas, denies another motion to quash subpoenas and enters a protective order to govern the enforcement of the subpoenas.
RULES OF PRACTICE: DISCOVERY; PRIVILEGE An attorney's representation, that all communications between the at-torney and the party were for the purpose of receiving legal advice, is sufficient for an assertion of attorney-client privilege.
RULES OF PRACTICE: DISCOVERY; PROTECTIVE ORDER A party's need for discovery outweighs any risk of harm from the potential release of information when the NRC Staff has indicated that no ongoing investigation will be jeopardized, when all identities and identifying information are excluded from discovery; and when all other information is discussed under the aegis of a protective order.
282 i
M
RULES OF PRACTICE: DISCOVERY; PRIVILEGE Even where a First Amendment or common law privilege is found ap-O plicable to a party (or nonparty) resisting discovery, that privilege is not absolute. A licensing board must balance the value of the information sought to be obtained with the harm caused by revealing the information.
MEMORANDUM AND ORDER (Ruling on Motions to Quash Subpoenas)
I.
BACKGROUND On July 8,1982, Consumers Power Co. (Applicant) requested this Licensing Board to issue deposition subpoenas to four Government Accountability Project (GAP) employees. These GAP employees had submitted affidavits to the NRC on behalf of whistleblowers, all but one of whom wished to remain anonymous. The contents of the affidavits apparently allege poor work quality and serious safety problems at the Applicant's Midland plant. By these depositions, the Applicant seeks to determine the substance of the allegations, but not the names of the individual allegers or any identifying information about them. Attached to the proposed subpoenas is a schedule of documents requested from the GAP employees. We issued the subpoenas on July 8,1982, but limited the scope of the questions asked of GAP and the documents which GAP had to supply to "only those relevant to matters already at issue (including admitted contentions) in the OL/OM proceedings."
Memorandum dated July 8,1982 (unpublished), at 2.
The Applicant, by agreemerit with the Staff, postponed serving and enforcing the subpoenas in order to allow the NRC investigatory staff an opportunity to conclude its investigation of the allegations prior to the initiation of discovery on these matters. However, in April 1983, the Applicant informed Region Ill Administrator James G. Keppler that it intended to begin discovery on the issues unless the NRC Staff raised any objection. Mr. Keppler responded that the NRC did not object to the initiation of discovery.' Thereupon, on April 6,1983, Applicant t in response to our question to the stafr at oral argument on July 26. 1983, the stafrindcated on August 2,1983 (at Tr.19.976), that at had checked with the ofrwe orInvestigations (oD and that that offre also does not otnect.
283 1
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informed the GAP employees by letter that it intended to enforce the subpoenas and proceed with the depositions.
On June 27, 1983, the GAP deponents filed a motion to quash the subpoenas. The Applicant and Staff filed responses in opposition to the motion to quash on July 11 and 18,1983, respectively. The Staff sought x
imposition of a protective order, and the Applicant offered no objection.
/
On July 20, 1983, Intervenors Barbara Stamiris and Mary Sinclair received from the Applicant a corrected copy of the list of requested documents.2 This was the first time Intervenors h'ad notice that documents concerning communications between themselves and GAP employees were requested. On July 26, 1983, these Intervenors then filed a motion to quash the subpoenas to the extent that they requested testimony or documents concerning such communications.
The Board heard oral argument on these motions on July 26, 1983.
We address herein the arguments raised in the motions and at the oral argument; and, for reasons stated, we are granting, Ms. Stamitis and Ms.
Sinclair's motion and are denying the GAP, deponents' motion. The subpoenas shall be enforced pursuant to the provisions of tiie attached protective order.
II. RULINGS ON MOTIONS TO QUASH SUBPONEAS A.
Intervenors Mary Sinclair and Earbara Stamirls' Motion to Quash Subpoenas Intervenors Mary Sinclair and Barbara Stamiris move to quash the subpoenas insofar as they request testimony or documents concerning communications between themselves and GAP. In particular, they move that paragraph 3 at 2 of the " Schedule of Documents Requested" be stricken on the ground that the information is absolutely protected by the attorney-client privilege. That paragraph requests the following:
- 3. All communications between Barbara Stamiris or Mary Sinclair on Ithel one hand and G AP, representatives of GAP, Billie P. Garde, Lewis Clark, Lucy Hallberg, or Thomas Devine on the other.
Counsel for Intervenors represents that Intervenors Barbara Stamiris and Mary Sinclair have consulted GAP for legal advice since March 1982 and that all communications were for the purpose of obtaining 2 When the deponents were first served with subpoenas in May 1983. an erroneous version or the document request was attached. The deponents were served with corrected versions on July 18.1981
_s 284
G legal advice (Intervenors' Motion at.5 and 3 Transcript at 19,121). Two of the GAP employees named in the subpoenas - Louis Clark and Thomas Devine - are attorneys at GAP. The other two individuals -
l Billie Garde and 1.u:y Hallberg - act as paralegals and investigators, under the supervir.wn of GAP attorneys, providing legal services to individuals requesting such assistance.
Neither the Applicant nor Staff challenges the Intervenors' we!!-documented interpretation of the law t.overning the attorney-client privilege. Rather, the Applicant challenges the factual foundation underlying the assertion of the privilege.
The Applicant suggested at oral argument that interrogatories be submitted to the Intervenors for them to set forth their understanding of their relationship with GA.P, dating back to the spring of 1982. In addition, the Applicant argued that the Intervenors should be required to submit an index of documents they are withholding on the grounds of attorney-client privilege, detailing the author, addressee, dates, and subject matter, so that the claims can be tested (Tr.19,145).
Intervenors objected strongly to this proposed procedure, arguing that certification by the attorney to the facts necessary to assert the privilege is sufficient (Tr.19,173). In support of this argument, Intervenors' counsel cited our ruling at hearing on June 29,1983. where we accepted the word of Applicant's attorney concerning his assertion of the existence of an attorney-client privilege (Tr.18,615).
~
We affirm here what we said then. We will accept the representations of attorneys before us. Counsel for Intervenors has stated that all communications between Intervenors Sinclair and Stamiris and GAP were for the purpose of receiving legal advice. We accept that representation. Therefore, we reject the requested discovery on this subject.
Moreover, we note that the Applicant's expressed purpose for the requested depositions and documents is "to discover the substantive content of the affidavits and to question the GAP representatives about the circumstances under which these affidavits were prepared."
Applicant's counsel at Tr. 19,127-28. Counsel for Intervenors represented that neither Ms. Stamitis nor Ms. Sinclair has seen the aflidavits and that neither has any information about their contents (Tr.
(
19,118). Therefore, neither testimony nor documents concerning communication between these Intervenors and GAP is relevant to y
Applicant's expressed purpose for the depositions and documents.
p.s Accordingly, we are granting Intervenors Mary Sinclair and Barbara ff Stamitis' Motion to Quash Subpoenas. Paragraph 3 shall be stricken NF from the Applicant's document request and deponents shall not be Q:
S e
b.
k_'
i
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m
- ' g t.
required to respond to any questions concerning communications between GAP and Intervenors Mary Sinclair and/or Barbara Stamitis.
B.
Deponents' Motion to Quash Subpoena
- - ~
[
..~f Deponents Louis Clark, Thomas Devine, Billie P. Garde, and Lucy i
Hallberg move to quash the subpoena in its entirety, including the attached request for documents. In essence, the deponents argue that no
~ ' ' '
information concerning the aflidavits can be released without risking the disclosure of the identities of the confidential informants (Tr. at 19,109 and 19,113). In addition, the deponents state that compliance with the subpoena to any extent would threaten the institutional integrity of GAP by creating the appearance that GAP cannot maintain the confi-dences entrusted to it by w%istleblowers. Motion at 1213, Tr. at 19,098-99.
GAP is a non-profit organization that, among other activities, assists whistleblowers "who pursue illegal, wasteful, improper or negligent actions by government or corporate bodies." Affidavit of Louis Clark, paragraph 4. GAP also acts as a conduit ofinformation from concerned citizens to government agencies. Motion at 6. The deponents suggest that the confidential sources of information will dry up if GAP discloses any information revealed to it in confidence. Tney argue that a First Amendment privilege should apply because disclosure of any of the subpoenaed information would " demolish the right of citizens acting through GAP to petition the government for redress of grievances."
Motion at 6. As an alternative, deponents argue common law privilege applicable to certain confidential relationships and information, and finally estoppel, based on the Commission's assurance of confidentiality.
Both the Applicant and Staff argue that the deponents' motion is premised on the false notion that the Applicant is seeking to expose the identity of the confidential informants. Therefore, they do not address in their motions deponents' legal arguments concerning privilege and estoppel. For the same reason, we also find it unnecessary to reach the question of privilege. With respect to the estoppel argument, even the deponents admit that the Commission gave assurance to the informants of nondisclosure only as to their identities. Affidavit of Louis Clark, paragraphs 8 and 12.
We have, however, considered what seems to be the thrust of deponents' argument, that release of any of the information concerning the contents of the affidavits, regardless of what restrictions or protections may be imposed, will inevitably lead to the release of the
" i 7
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286
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r identities of the informants, or at least create the appearance that GAP I
cannot protect the conGdentiality ofits informants.
We Gnd these fears to be unfounded for the following reasons:
- 1. The Applicant is not seeking and this Board is not ordering that the idemity of any affiant or any identifying information regarding an. afGant be disclosed. The Applicant has specific lly stated in its Application for Deposition Subpoenas at paragraph 5 that " Applicant will not ask for the names of the afGants during the requested depositions." Applicant has requested the cffidavits and statements at issue "with the afGant's name and any information which would disclose the affiant's identity deleted." Schedule of Documents Requested at 2.
- 2. The GAP deponents construed the subpoena as seeking information beyond the s: ope of admitted contentions - for example. the organization and financing of GAP and the means by which that organization obtains information (Tr.
19,079). The Applicant conceded that much of such information would likely 1ot be relevant to admitted contentions or issues (Tr.19,M7). We reiterate what we stated i
in our July 9,1982 Memorandt.m at 2, that the scope of the depositions and the documents wisich GAP must supply is limited to "those relesant to the matters already at issue in the OL/OM (including admitted contentions) proceedings." In that connection, the manner in which GAP generally obtains information would not be relevant; the manner in which it obtained particular information relevant to particular contentions or issues might be relevant.
- 3. In order to further allay the concern of GAP that conGdential information could be disclosed or that the public might perceive that G AP cannot be entrusted with confidential information, we are also entering a protective order restricting disclosure of any information revealed in the depositions or document request to Applicant's counsel, NRC Staff, and Intervenors, except that information necessary to obtaining a ruling on the propriety of any disclosure may be revealed to this Board. The Applicant offere2 no objection to such aa
~-
order, and the StalTaffirmatively,ought it.
Although deponents expressed apprehension concerning a poEsible breach of the protective order, they have presented no partictuar evidence that there is more of a risk of a violation in this case than in any other case. As the Appeal Board recently noted in Commonweahh 287
'1
9 Edison Co. (Byron Nuclear Power Station, Units I and 2), ALAB-735, 18 NRC 19,25 (1983):
Up to this point at least, licensing and appeal boards have acted on the assumption 7
..:i i
that protective orders will be obeyed. Houston Lighting a Pomer Co. (Allens Creek E.
.N[
Nuclear Generating Station, Unit I), ALAB-535,9 NRC 377,400 (1979). On that
~~ g assumption, boards have permitted the disclosure to parties of a wide variety of M.
sensitive information - including the details of plant security plans. See. e.g., Pacvic e
Ga: and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2),
ALAB-592,11 NRC 744, 746, and ALAB-600,12 NRC 3 (1980); Consolidated Edison Co. (Indian Point Station, Unit No. 2), ALAB-177,7 AEC 153 (1974). But see Hou; ton Lighting d Power Cv. (South Texas Project, Units I and 2), ALAB 639, 13 NRC 469, #77 (majority),484-85 (dissent) (1981). Ta our Anowledge, there has never been a breach of an NRC protectiw order that seriously threatened the cordidentsalory of the nl formation rewaled under the order. l Emphasis supplied).
In that case, it was the NRC Staff that expressed concern about the effectiveness of protective orders to prevent disclosure of information that is the subject of ongoing investigations. The Appeal Board indicated that if the Staff had "an actual, as opposed to purely theoretical, risk of such a breach here, it had the obligation to document that basis" (id. at 25). In particular, the Appeal Board stated that the StalT would have to make "a concrete showing through appropriate affidavits rather than counsel's rhetoric, of potential harm to the inspection and investigation functions relevant to this case" (id. at 26).
//
Since identities are not even being disclosed under the aegis of a e
protective order in this case, we find no risk of harm to GAP's confidential informants or to GAP's institutional integrity. In addition, th'e NRC Staff has indicated that no harm will ensue to the ongoing
./
investigation from initiation of this. discovery. On the other hand, we find that the Applicant does have a need to discover information relevant to the contentions and that it has been unable to obtain the information elsewhere.
We note that, even if we were to find that a First AmendmeTit or common law privilege were applicable, as argued by GAP, that privilege would not be absolute. It would call for a balancing of the value of the information sought to be obtained with the harm caused by revealing the information.2 Given the lack of harm which we find will result from revealing certain information subject to the protective order we are Dr W rehr v. '/ rep Co p.,547 F. supp 871 (E.D. Mich.1982); Graf v. Board of //wher Edarsten. Csty 3
of,'.ew tork. 92 F R U 87 (s D N.Y.1981); and Rachards of Rocaford. Inc. v. Pactfic Gas and Electre Co. 71 F R.D. 388 (N D. Cal.1976).
..i
- i 1
/ e 288 j
e 4
a g
a h
/
)
i imposing, we would net in any event quash the instant subpoenas on e
the basis of privilege.
A For the reasons stated, it is, this 31st day of August 1983,
- I ORDERED
- l. That the Motior. of Mary Sinclair and Bart.,ra Stamiris to quash certain aspects of the subpoenas on GAP deponents u granted.
/
- 2. That the GAP deponents' " Motion to Quash Subpoenas"is denied.
The depositions and document requests shall be carried out in accordance with theierms of the attached protective order.
FOR Tile ATOMIC SAFETY AND LICENSING BOARD
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Charles Bec%oefer, Chairman i
i ADMINISTRATIVE JUDGE l
Dated August 31,1983.
PROlECTIVE OR1)Eli 4
it is ordered that the deEsiiions and document requests encompassed by the Licensing Board't. Memorandum and Order (Ruling on Motions to Quash Subtocnas) dated August 31, 1983, shall be subject to the following terms and conditions:
(1) At theit respective depositions the GAP deponents who have been subpoenaed (Louis Clark, Thornas Devine, Billie Garde and Lucy llallberg) (the " GAP Deponenss") need not respond to any question which (a) seeks to learn the name of any individuals who have submitted affidavits th GAP pt. suant to a promise of confidentiality
("the anonymous al ents") or (b) may reasonably be expected to result s
in the disclosur: of tre names of he anonymous affiants, or any of them (" identifying information").
(2) The GAP Deponents may delete, or cause to be deleted, from s
the documents requested in the Schedule of Documents attached to
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their respective St:bpoenas, the names of the anonymous affiants and other identifyirg information.
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(3) The Applicant, Staff and Deponents will attempt to resolve any 6
differences they may have as to whether a particular question, if answered, or a portion of a document, if not deleted, would result in the disclosure of identifying information, and in the absence of such resolution the matter may be presented to the Board for resolution by motion, upon which the Board may enter such relief as it seems appropriate including, but not limited to, crdering the resumption of a deposition.
(4) All inf:rmation elicited from the depositions and document requests shall be restricted to Applicant's counsel, NRC Staf* and
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Intervenors, except that information necessary to obtaining a ruling on the propriety of any disclosure may be revealed to this Board.'
(5) In the event, through error or inadvertence, the name of an anonymous affiant, or identifying information, is disclosed during the course of a deposition of the GAP Des onents, upon request made on s
the record, by the GAP Deponent or counsel for the GAP Deponent, such name or identifying information shall be deleted from the transcript, and counsel for Applicant, the NRC Staff and Intervenors shall not disclose such name or identifying information to any other person except to this Board as may be necessary to obtain a ruling on the propriety of any disclosure. In no event, in the absence of a subsequent order by this Board shall counsel for Applicant disclose such name or identifying information to Applicant or to any employee of Applicant.
(6) This Order does not in any way determine whether the anonymous alTiants have any right to non-disclosure of their identities, or any othet question of fact or law in connection therewith, aad is without prejudice to the rights of any party to this proceeding to obtain a ruling on such questions of fset aisd/or law from this Board. This Order I
Appisant's coursel may come back before this Board and request permi*saon to disclose informaten to Appbcant it the counsel determines that the A;Tizant has a need to know it.See discussion se Tr.
19.135 36.
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shall not in any way alTect the burdens of proceeding or proof on such questions which would exist in the absence of this Order, E
FOR Tile ATOMICSAFETY AND LICENSING I!OARD Charles Bechhoefer, Chairman ADMINISTR ATIVE JUDGE Dated August 31,1983.
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l Directors' Decisions Under 10 CFR 2.206 i
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Cite as 18 NRC 293 (1983)
DD 8311 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OFINSPECTION AND ENFORCEMENT Richard C. DeYoung, Director in the Matter of Docket Nos. 50-445 50 446 (10 C.F.R. I 2.206)
TEXAS UTILITIES GENERATING COTAPANY, et al.
(Comanche Peak Steam Electric Station, Units 1 and 2)
August 19,1983 The Director of the Omce ofInspection and Enforcement denies a pe-tition pursuant to 10 C.F.R. j 2.206 which requested that the licensees produce certain design documents or, in the alternative, show cause why they should not be found in violation of NRC regulations if the docu-m nts are not in their possession.
RULES OF PRACTICE: PETITIONS UNDER 10 C.F.R. 5 2.206 A petition is not properly brought under 10 C.F.R. f 2*206 which re-quests the Director to grant relief which is within the power of the presiding oMcer in an NRC adjudicatory proceeding to grant.
10 C.F.R. PART 50, APPENDIX B: QUALITY ASSURANCE NRC regulations do not require licensees to maintain all quality assur-ance documentation pertaining to facility design within their immediate
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possession. Licensees may delegate the establishment and execution of its quality assurance program to contractors and other agents but the licensee retains responsibility for the quality assurance program.
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l DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 On January 28, 1983 Mrs. Juanita Ellis, president of the Citizens Association for Sound Energy (CASE), Dallas, Texas, submitted a peti-tion under 10 C.F.R. { 2.206 requesting that the Director of the Office c
of Inspection and Enforcement issue an order to show cause why the licensees, Texas Utilities Generating Co., et al..'should not have to pro-vide certain design information or, in the alternative, if the documents containing this information are not in the possession of the licensees, why their failure to possess these documents is not a violation of NRC regulations.
There is currently pending a proceeding before an Atomic Safety and Licensing Board for the purpose of determining whether operating licenses should be granted for the Comanche Peak facility. CASE has in-tervened in that proceeding, and CASE is challenging the adequacy of the design of pipe supports being used at Comanche Peak. As part ofits
" Twelfth Set ofInterrogatories to App;icants and Requests to Produce" (Aug. 9,1982), CASE requested the licensees to supply certain docu-ments containing information aboi.' design of the pipe supports. The licensees replied to the interrogatories hy stating that, with the exception of certain pertinent information contained in the PSE Design Manual, the licensees did not possess the requested documents.2 Several months later, CASE filed its petition asking the NRC to require the licensees to make these documents available to it or, in the alternative, to find that the licensees are in violation of NRC regulations for not having the 3 in addition to the Tenas Utihties Generating Co., the other co-hcensees of the Comanche Peab facihty are the Dallas Power & Lish: Co., the Texas Power & Light Co.. the Teams Municipal Power Agency, the Brazos Electric Power Cooperative, Inc., and the Ten-La Electnc Cooperative of Tesas, Inc. The co-hcensees hold the construction permits for the Comanche Peak steam Elecmc station and are apphcants for operstmg hcenses for the facihty.
2 See "Apphcants' Responses to CASE's Twelfth and Thirteenth sets ofinterrogatories ('d Requests to Produce" ( A ug. 23, 1932). specir.cally, CASE requested the followm3 documents pertaining to the design by ITT Gnnnell and NPs Indusines, Inc. (NPsi) of pipe supports (the numbers correspond to the requests an CASE's Twelfth set of Interrognones).
- 9. NPs! Design Criteria for ne supports (the ofTicial one issued in May,1981).
- 10. ( Allt docurpents.. whsh were used to define the method used to determme the tensile force in the Richmond inserts.
- 12. IT]he current Grinnell Design Cntena for pipe supports at CPsEs l Comanche Peak sicam Electnc station).
- 16. tA] copy of the Hilte allowables and the procedures for the analysis.
- 17. [ A] copy of FUB 11 and the instructions of how ta use the FUB 11information.
. to determme the capacity of the Hihi bolt.
In answer to questions 9,12 and 17 the hcensees referred CASE directly to their contractors, ITT Gnn-nell and NPsi, sayms that the licensees did not possess the ci ed documents. For questions 10 and 16.
t the hcensees responded that, to the entent they had any of the information requested, it was contamed in tfie PsE Design Manual, which was already available to CASE. Further mformation, they staied.
would have to be obtamed directly from SPsi Sr ITT Grmnell.
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O documents in their possession.2 CASE's request that it be provided the NPSI and ITT Grinnell design dv.uments is now appare:ntly moot, as CASE has been provided an opportunity to inspect and copy relevant portions of these and other documents which CASE has sought as a result of further negotiations over discovery matters with the licensees.*
However, in all events, CASE's request that the Director initiate a show-cause proceeding pursuant to 10 C.F.R. f 2.202 for the production of documents to CASE is not properly brougl.t under 10 C.F.R. f 2.206.5 CASE's request for production is essentially a motion to compel discov-cry of relevant documents to a party to an NRC sdjudication. Such mo-tions lie properly before the presiding ofTicer or Board havingjurisaiction over the proceeding. See 10 C.F.R. f 2.74C(f). The NRC's adjudicatory boards are charged with regulating prehear:ng discovery and ensuring the parties' access to documents relevant to tLe issues set for hearing. In an analogous context, the Commission has cautioned that 10 C.F.R.
f 2.206 should not be used as a means of circumventing a licensing board with jurisdiction to grant relief on a certain issue. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CL1-81-6,13 NRC 443 (1981).
The question remains whether the licensees have violated NRC re-quirements by not having the identified documents within their possession. To put CASE's petition in context, it should be noted that information concerning the design of a nuclear facility can generally be divided into three categories. The first is that of design criteria or design allowables. This information defines minimum characteristics which gross elements of a power plant are to have. For example, a rod protrud-ing fr'om a wall may be required to carry a load of some specific amount.
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The load for this rod would be a design allowable, and part of the design criteria. The second category is the actual design of the facility. Again using the rod analogy, a complete design would specify not only the type 3 CASE riakes note of the fact that it is challenging the adequacy of the pape supports. but that CASE is not attempung to use its i 2.206 petition to pursue matters proper!y before the Liccang Board. since the pipe supports issue is before the Licenang Board it shall no te addressed in this decision. section 2.206 is not a mechanism for adestepping the junsdiction of the Licensing Board or the Atoms safety and Licensing Appeal Board. See fac40c Gas and Eircrrar Co. (Diablo Canyon Nuclear Power Plant, UnP.s I and 2).CLI-816.13 NRC 443 (1981).
- See Letters to Juanita Ellis from Nicholas s. Reynolds. Counsel for Apphcants (March 29,1983). from William A. Horin. Counsel for Applicants (April 27. 1983). from Herman w. D'Ernco. Project
-f Manager. NPs Industries. Inc. (May 4.1983), from David D. McKenney. vice President and General Counsel. ITT onnnell Corp. (May 9.1983); Letters to Wilham A. Honn from Juanita Ellis (May 4 and June 8.1983).
5 The Director informed Mrs. Ellis of this view in a letter dated March 31.1983, which was sent in re-sponse to her letter dated March II.1983. CASE filed a motion to compel discovery with the Licensing Board on March 23rd, and since that ume CASE and the bcensees have negouated arrangemems where-by CASE has been allowed access to the documents. See syrs note 2.
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of rod to be used, in terms oflength, width, material and shape, but also how that rod would be attached to the wall, e.g., how many bolts would be used, of what material these bolts would be, and in what configuration
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procedures or other information concerning the manner in which the they would be. The third category of information includes the design design is to be developed or implemented. This third category would include, for example, tables and charts specifying properties of various materials, and computer programs incorporating algorithms which are used to calculate the final design. The information which CASE seeks in its petition, and which the licensees stated they did not possess, falls generally into this third category.' The licensees referred CASE tc ITT Grinnell and NPSI, the contractors which designed the pipe supports.
CASE pelieves that the licensees are require.$ to maintain the docu-ments in their possession at the Comanche Peak site. See Petition at 1.
It should be noted that the documents have been at the site in the possession of the pipe support contractors at times in connection with the contractors' performance of their assigned design and construction activities. Because the documents are mainta ned under the control of the contractors, the licensees have indicated that they do not have them within their immediate possession.
CASE contends that the licensees have violated various provisions of 10 C.F.R. Part 50, Appendices A and B, if the ITT Grinnell and NPSI documents are not within the licensees' possession. These regulations reiluire the establishment and implementation of a quality assurance program, including the creation and maintenance of appropriate documentation,' applicable to the design, construction, and operation of structures, systems and components important to safety. The licensee '
may delegate the work of establishing and executing the quality assur-ance program to ce tractors, consultants, or other agents, but the licen-see retains respons.bility for the establishment and execution of the qual-ity assurance program.10 C.F.R. Part 50, Appendix B, Criterion I. The regulations require licensees to be responsible for the records, to have access to them and to establish requirements for record retention, but the regulations do not require licensees to maintain within their immedi-ate possession all documentation bearing on the design of safety-related features of a nuclear power plant. See 10 C.F.R. P;rt 50, Appendix B, 6 The information sought in interrogatories 9.10.12.16. and 17 by CASE in its T ch4h sei or Inter.
rogatones appears to have been pnmanly directed towards design procedures despite references made to design cniena The & syn cntena referenced in these mierrogatones were already asailable io CASE ser supra note 2.
7 See 10 C F.R. Part 50. Apgnd:s A. Cntenon 1. and Appendit B. Cntena v. vl. & xvil c
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Criterion XVil. The Commission's regulations contemplate that some reccids may not be at the site where the facility is being constructed or operated. Criterion VI of Appendix B provides that:
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Measures shall be estabhshed to control the issuance of documents.. which prescribe all activities affecting quality. These measures shall assure that documents
.are distributed to and used at the location where the prescribed activity is performed.
The development of a design and the implementation of design proce-dures to create the design of safety-related equipment is often performed by contrtctors for persons who are licensed to construct a facility. The contractor may perform some ofits functions at its own facilities as well as at the site of the nuclear projict. Documentation related to the devel-opment of the design must be controlled and maintained by the contrac-tor in accordance with the contractor's quality assurance program imple-mented to satisfy the licensee's obligations under 10 C.F.R. Part 50, Ap-pendix B. The licensee's Preliminary Safety Analysis Report (PSAR) and Final Safety Analysis Report (FSAR) state that, under the quality assurance program for Comanche Peak, contractors and vendors are re-quired to have quality assurance programs which meet Part 50. See, e.g.,
PSAR 5617.0,17.1.2.4; FSAR (( 17.0,17.1.1.5.
Quality assurance requirements concerning design implementation documentation for the pipe hangers and supports were set forth in Proj-ect Specification 2323-MS-46A, which was part of the contracts between the licensees and their contractors ITT Grinnell and NPSI. The project specification incorporates the American National Stand.trds Insti;ute
'(ANSI) Standard N45.2.9 " Requirements for Collection Storage and Maintenance of Quality Assurance Records for Nuclear Power Plants."
The ANSI standard prevides that the implementation of the standard's requirements may be delegated to the organizations performing the work covered by these standards. The standard provides general require-ments and guidelines for record retention. See ANSI Standard N45.2.91974, at 1. The stafT has adopted the recommendations of the ANSI standard as a generally acceptable means of meeting the require-medM for maintaining quality assurance documentation. See Regulatory Guide 1.88, " Collection, Storage, and Maintenance of Nuclear Power Plant Qua]ty Assurance Records" (Rev. 2, Oct.1976). Consequently, the licensees are not required to themselves possess the NPSI and ITT Grinnell documents, although they retain the responsibility for ensuring that pertinent quality assurance documents related to the pipe supports are maintained i
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The documents are available to the licensees and to the NRC for its inspection
- in the omces of ITT Grinnell and NPSI. The documents have also been used and kept by ITT Grinnell and NPSI at the E
Comanche Peak site and at such times have been available to the licen-sees and the NRC.
In conclusion, the licensees have not violated the Commission's regu-lations although they do not themselves possess the ITT Grinnell and NPSI documents at issue. Accordingly, the petitioner's request for initia-tion of show cause proceedings is denied.
A copy of this decision will be filed with the Secretary of the Comm;s-sion for the Commission's review in accordance with 10 C.F.R. 5 2.206(c).
FOR Tile NUCLEAR REGULATORY COMMISSION Richard C. DeYoung, Director Omce ofInspection and Enforcement Dated at Bethesda, Maryland, tisis 14th day of August 1983.
g Ahhough they may not possess certain of the ITT Grtanell and NPsi documems. the hcensees aver that the documents are indeed available to them. See Letter to stephen G. Durns. Office of ne Enecu-tive Legal Director, NRC, from wdham A. Horin. Counsel for Licensees Uur.e 28.1983L The PsAR and F3 AR state that the quality assurance program includes audas of vendors
- and contractors' actnities to ensure conformance to quahty assurance requirements. 3rr grerralts *.R 44 17.1.2. 17.I.2 4 FsA R 44 17.1 1.5.17.1.17.17.1.18. NRC representaines have reviewed th6 stractors' documents as part of their inspection efforts. Sec. e g. NRC Region IV Inspection Report Nos. 50-445/82-26, E
50 446/82-14 (Feb.15.1983L 298 m
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