ML20090J108

Nuclear Regulatory Commission Issuances for December 1983. Pages 1,303-1,482

ML20090J108
Person / Time
Issue date:	12/31/1983
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V18-N06, NUREG-750, NUREG-750-V18-N6, NUDOCS 8405220259
Download: ML20090J108 (179)

Text

{{#Wiki_filter:. ,. ~... y m. -. -. n ...c u .<-.-e. -. - -.....i.-- .-..-....=e......-~.-%-=,. v......+.m.+a. .w-. ... v (. .n.. + - < m..% t,.,,i. m ;, we., & c ... a.<., s.n.,:.,,..,,. -,,...,.w

o. 6 ~ ;#.

~ m.,... . Vol.18, s .c,r

t., r.,v.:n.vspw r.m. -w Pages _1303-14821 g

a ;,-,, ' 5 yf - .*.j >A*s .y*, Y -u. ~.,,,m3 3. w. _. 3

v. w.-

,r ..,,...,,..,,,,.,. ~,, ..,,v.- tt = ,e-yy a '., ay~*

• -.+s,.

. l M.%.

• .N..

sr. .c.4 ..yr.*44 r y n t, .r . _. -._ _. _. s+ ; _M.W. Ast* wM us Q,v._s_ ;;s,~.~ _ w.g g h UC ' EAR;R EGU EAT,ds.:t.:rwik %% , M,gg _.%+.: On Q c. on w vm h... m. 4 o., J%.F.S... a.,0.% r u. 4,....U$5dMNI 5. I NslSSOA. SNG..&.5M E 4 - ~mw

.n;y&,=wmmitvm..?NWcr.x.,y.c :M *~wr.m.:1pmnyx19.-

=x:: ' yy . s.,,,,;y _ _ _ u u ~: n - - * ~- L. r _ yw wwetw:M.:nsmwzweew=.w.w' ?ewWNww.:,1x?%.w,cw z e xa. W +>+.*v %:: n v,. w. -.%.+,n,w ~ -.,, _.%.~v,.s. 4,7_ :?... Q(f} h._ - .._w ne

a

u..t.

~.. m. _ ~w?.m v?.cw 1 m.m.k& ~ ~...,a ww.r se .a voow i s m.m*.py,:,m no.w.aw w:.=we-wn.omny m m + t.ws<*p w +- u: e.-. .~.<.m avs. .w.c W -

1. .mm., wt.% _ :

\\ = r- + .e. s%w.,*,- . w,>.r...- ~ v.a:a n,. n...n.n

a. m.

a. .m > m n.w. . e., x, 7;.;;; q ' p ~; c g r -. ;; ~ ~ n.: ~ - _.c.r. +.c.w,. n.w a g - -u .~m.v.._....m.,... .. u e... u c .. ~.. - .n r n,. ...~.~%.,..... w w,,. w. a., m. m,,,,n u.m.. u ,.m ~t. p<, sps.REGy,.,c .~.. . v. m.sm,uc. . u a. . n w. w.u. n , m, a. - m.,.mmow m. s.

• -yms M@*';awre Rwar*

4**o.r e er.:m M*'tpw N v % r,v* c ,Q.~ < w.,. -. v,, ,,.. n.w w .a ..,.y ?.L.. .w c.. c ,,..r w... 4, c..

.~.....

w,. . p~,.. r, ....,s-.. ; ,m.a. <A, ~

.n s,

+ e Ov - . h.. ~ e G. + s _s-#, ww ,_v e,s: e +., w..,. < ~v., o w: p a.a ...n. -.>.e. m, n.x. w k,4h.s' 4 e .f.d%._'d.MadybdkdNN Q r*/,/5,hsi.+'yk durur ft. ........%4 Q,, h - }g )s f,,, M5;.d~%MumWd ~. .r nm?M &':aSim .y.we>; Q... ;. A., ~M W s -. r u..&. we* ~ .., o nm.,J m.w .a. 6 ,e m 9.n, .e g m.m .N..h. @[n.f[.[ &..M. w., N P 1 a ~ U.S. NUCLEAR REG TORY COMMISSIO

..,.,.,: z:..

c....

... x.2:

.a,.

p- --. w ,;.wp;.y 9,y L,. .p < p w:w .n,., ~; ~^ .o wr,'*f"'W_..n!M,'h.,s,ww'~M., e,&. 1, .s, y

• y.,.a; r w mw=a.,4.,,, *a., v.e,rwn..- M,4, m v

w 4 r...-o i %,. v

m. s rwo.--

.s n.#. w. ~ e .. ~ .: f. w -. s,. y - m-y

• ed.',.2rM V " xxi w.f.v.d

.m 'rt v . seghed m.a=A h d4p )t M w.4w 4.p.v , 4 .A - - _ J ,_ _ J.., m+A,,. t, m w %a O m g i,. m,g:..u :: y :.;,:: 'n:.:. w w-a wq; Tisa ed he g e,. w,hy.,.,,. +:-- +. m m.

• . n-e 4 - awe i w.- * <

w =M, - e..*-~s. < 4, o,s . i. e ..,c,e, t.;- o .....~...w y . tm w p v. 7 4 g. f. .s e. N Q,% P9W.AM W i. ,,+g.4 %yv.m %.,yi,,%,*ui 5..m.. ny 49., - avenf40 u . m,a,.,. s b.m..

• e.rpe N u

+ mgy y'.n rm. apr.g.e,94,4 gem %w.p *A*44.e rr % q%m.,:.. ..n,. + ~.tr, ,e n. m., ww p.. yyGW w t >.,w a f, g % g z. w m n.p.7 bh.x bh0h k'h!', YhY.hh. 2 ;,,_ _Yk$ n- --A nr m n l 1 8405220259 831231 PDR NUREG 0750 R PDR

(

. :, ~ng sw.x,wr c,7my. i;

==c-- ~ ~ - m. 5 A*R*k r M &u.a L3 y ' 54,n$.7 Q + *p %.. 4. %y;f., s.x...a m...,,% A ...w n w 7,. e 4 .1

• Q Yu(..

.. Om & s y a n.,~. _.. h.. : v *' r > Q4 n vw,o,.p,y.ay%g:,emb,v "t M - - 4 w m.v m g a ,a: m.>. c.& - -. - .w,mw.s.c n.l 4..w a w.fn.-W,Q.4. n*,.? A : m. ".-M:p.w;c. Qy M..., ~. ~ c a. .~ a w w&w.v - 4.s.r. se. ' p '. 6+. n-k, \\e.,.,.m, 8-ear r AW' vie .> ~ ~ '. Ipw o. a ..w%=.. ~m o e ~n..e.w.,..e.1.n. :. m m..,. ~. r n. s 7 ..~ m. ~ . s.,,. c., _ A.o. s..,.... m.*a. . m. m , v n..s ~ n,.. ~.. - .r.. ..w .~.. .au . n. e .*v

• YN aazve

.a. A w.,% m.n,3 %- c (.., '.w; -.w. ww r.. . - e%~ u -y*e. -* a W.ym. d.p . ~. w b- ~.. w,-a y e. w &. N.,s; % g.* - p e a w g? n u h b.s b.f m gwv N4 %. Q.c., M '. M I v. 4 .c 4,4A gr4.% v..t % C Z,C _ y f_ ..v..&W M W b ? M

• M 3:

. :.w+.r %.. v. r.. n, 7... -

v w n s

e...

v. f.id,.*h. ",T. M dJF33. % fp A n. ey -.M...Q, 33 %.g. m M.. M...;,r.s** e 'l.y,M,i.e.e.d,g.: .T-4* g Q#T j prA.- %s% me,.m, . t... w,m _. m... ~. _. e-.g.<~.. m...--. .r. .a n t 9 ,c,.gs _... m. w,. _ y mm M: M., 9. M/ PN.%.W Wty, e, cwa.,Aved.eble..f. romp. G....g ;W.t. W-64.' e _ - _..e.,,u.,,-,.,...,s. %,~... v., %. w.._._. .,y, gw 4s NRC/GPO Sales Program.WH, {.$y wp s.

d. >MMy

%'=*M. &m....W % % G ?};b t M. W,. y W K hg.....M% s?..y: ~ ._ ~, ~.mA.,,,. Supe..n.,nte.nde. nt of.D. ocuments, e%.5. e.,e- ~,5 ce,< w& ~ w r, Rm. :. - w mu- ..~ ..:Govemment Printing Office i, ; - m s y"@r -y o ?^ ^' - ' i.am.aww c.rw..u,wWa.shingto.n, D,C 204.02 o ~,. y g : y,w w.- :.w.~.

.c..w., men.w.a.u uu

.w.n v. wu m:.n.n u. i ~ _.....,,A r's .of.12 so.ftbound issues,...n- .c.

. ~.a. n a. n. '

"i 4 indexes, and 2 herdbound editons for this publication." ? ",,, ~ yw ,v y. p. c, .n, g. n. a,%. a.mm.w

w...

ps,.#. ies of this pdbhcotio. _ m... e m. .c. m. y . m + e,. v. a -.'" ? Single cop n t Wwn M Info.rm.ation Service, Springfierd, VA.ical : are'aveilable from National Techn 22161 ' ~ ..y,.. . Microfiche of single copies are'. avalable from NRC/GPO Sales Program. Washington, D.C. 20555 * + ,e- . rw <..,..~. w..m e. . a... e. mw .? x-..w -

..,~. -..

u.n yp. .n . n -...+--~.n~. . ~r .4 m. m, -.w. u.m.n w. ..w.m w e.- s : -.n. w c

x..n cwwa,.m.&..m n.a,s + 8.w:o; W.a e S. Q. - ; u a. X,.m, l 2 ; w..M.. n. M...a. i V

.w... ~ . ~ o..~ % _. -., am ,w q w. p m ; g. a ;: 3 . v. s .n. ...,. m.m, . n.,, -. ..,.e n. . r.. w.. 4.. .c .s. ...,_..t- .-.m. a-.#. m , ~....~...2,..., .a-m o-4 4.[., f.h. $.' %' 7~1 e %..,[.4 M,.f 4*I.,t $ 1,..,, m.. ,7., M. N, P. E. -.4.il~ i e..i~ L E '.d .8.. '..

• M h0

.., /, \\ 4 V w .~

• .4 y
• '~,**rs-*

- 4 4 ' ed y y. W, q- ?., r m

/ -.-

..,. /.; ...._s . + .e v .~ ~, - .,,...,, s v. f % -. ~

• a. w r v.. m, <..

-.,.4 m N 31 .m t.... .+. m :v .g y ..% 4 Errors in this publication may be reported to Vicki E.Yanez Division of k c i Technical Information~ and Document Control,' Office of Admin'etration," U.S. Nuclear Regulatory Commission, Washington, D.C. 20566 (301/492 8925) ,e s 4,, , m. m e m s.p. _ 4.., :, *,,, t - -,5 'e' * '... - .m n.. ,ts., ~., .- mu. &. Y. W '.be, . f$. $s W '. *',N. " 4 [ &. &)..' k).h. \\.4 *,N

• d....

~% 's g N. 's' ^b*> s....,'..ce m.'... c. ~ b s a been4 C L y%, e,,wa /w t 4 6 6. ;g

• A s y uj &,.w

e. % A f My M. y

.A-"- '... *'e w%., e 4 4 s,- e

.-a S.

s ,e 2 *. [*;U '. g.[h*/ ht _v ,p Y. *f ' N"' ' NU I # C ' f * .# h*

• • , dy 8. %*
• Q ',,--[,* 'j' **

.n.+ 3, a ,.~,m<,y.~. .... :, Qy.Q g n, , +,. s s ang.

w.

q- .es. A. 0 * ., M :. v ! & * '. u,. 1 n.. nf a

p.W.;

4 m.n a q.,...mme. e, y : y v.+. -,... s.v,.*s m.e - a o e- /e+ ,.. w,.m m.e s -sev. m.. a+ a _[" h,, b gif _.f_ $ 5 '_. _ _ y f _' 5' f y,f f*f W ;Y ^& y _p _ '. _} g Y _$ A W ;y {_ N 4

i i NUREG-0750 Vol.18, No. 6 Pages 1303-1482 l l NUCLEAR REGULATORY l COMMISSION ISSUANCES December 1983 l l i 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 Rulemaking (DPRM). The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dent legal significance. i I 1 l l l Prepared by the Division of Technical Information and Document Control, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20566 (301/492-8925) ..._,....-e 4 e..

i r e i i I i COMMISSIONERS Nunzio J. Palladino, Chairman Victor Gilinsky Thomas M. Roberts James K. Asseletine t Fredenck M. Bernthal 4 i i t I i Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeel Per.el

8. Paul Cotter, Chairman, Atomic Safety and Ucensing Soord Penel i

i i I b t 8 I l' 1 I 2

. _ - - ~.........,... _ _, _.. t 6 CONTENTS i lisuances of the Nuclear Resulatory Commission DUKE POWER COMPANY, et al. (Catawba Nuclear Stathn, Units I and 2) 1 Dockets 50 413, 50 414 ORDER, CLI.83 31. December 6, 19 8 3.................. 13 03 u PACll:lC OAS AND ELECTRIC COMPANY i (Diablo Canyon Nuclear Power Plant, Units I and 2) Dockets 50 275, 50 323 ORDER, CLI.83 32, December 9. 19 8 3.................. 13 09 I l lisuances of the Atomic Safety and Licensing Appeal Boards l 1 i LOUISIANA POWER & LIGilT COMPANY l (Waterford Steam Electric Station. Unit 3) Docket 50 382 0L DECISION. ALAB.753, Dece,mber 9, 198 3............... 13 21 PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power I'lant, Units I and 2) Dockets 50 275 0L,50 323 0L MEMORANDUM AND ORDER, ALAB 756. December 19, 19 8 3....................... 13 40 PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, et al. (Seabrook Station, Units I and 2) Dockets 50 443 0L,50 444 0L i MEMORANDUM AND ORDER, ALAB 751, December 6, 19 8 3........................ 1313 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Seabrook Station, Units I and 2) Dockets 50 443 0L,50 444 0L MEMORANDUM AND ORDER. ALAB.757, December 20,1983....................... 1356 i- { 4 l lli ! O i-l r e h an

t l t l t l TENNESSEE VALLEY AUTHORITY t l (Phipn Bend Nuclear Plant, Units I and 2) L: Dockets STN 50 553, STN 50 554 i i ) MEMORANDUM AND ORDER, ALAB.752, December 6, 198 3........................ 1318 g l \\ UNION ELECTRIC COMPANY i (Callaway Plant Unit I) Docket STN 50 483 0L DECISION, ALAB.754. December 9, 1983............... 13 3 3 I I l UNITED STATES DEPARTMENT OF ENEROY PROJECT MANAGEMENT CORPORATION TENNESSEE VALLEY AUTHORITY + (Clinch Riger Breeder Reactor Plant) Docket 50 537.CP l ORDER, ALAB.7$5, December 15,1983................. 13 3 7 Issuances of the Atomic Safety and Lleenslas Reard CLEVELAND ELECTRIC ILLUMINATING COMPANY, er al. (Perry Nuclear Power Plant. Units I and 2) Dockets $0 440 0L, $0 4410L ( ASLHP No. 81457 04 0L) i PARTIAL INITIAL DECISION. LHP.83 77, December 2, 19 8 3......................... 136 5 - CLEVELAND ELECTRIC ILLUMINATING COMPANY, cr al. (Perry Nuc! car Power Plant Units I and 2) Dockets $0 440 0L,50 4410L MEMORANDUM AND ORDER, r LBP.83 79. December 2 0, 198 3........................ 1400 t CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. (Perry Nuclear Power Plant, Units I and 2) Dockets $0 440 0L,50 4410L MEMORANDUM AND ORDER, LBP.83 80, December 2 3, 198 3........................ 1404 i r j t t I I .., - ~.,.

....._ _.. _ _ ~ _ _... i l l l PUGET SOUND POWER AND LIGilT COMPANY, et al. (Skagit/flanferd Nuclear Power Project Units I and 2) l 1 Dockets STN 50 522, STN $0 523 (ASLBP No. 75 279 08.CP) l MEMORANDUM AND ORDER, LBP 83 78, December 13, 19 8 3......................... 1398 1 TEXAS UTILITIES GENERATING COMPANY, er al. (Comanche Peak Steam Electric Station, Units I and 2) Dockets 50 445,50 446 (Application for Operating License) MEMORANDUM AND ORDER. LBP 83 81. December 2 8, 19 8 3........................ 1410 Issuance of Director's Decision 2 CINCINNATI GAS & ELECTRIC COMPANY (William 11. Zim'mer Nuclear Power Station) Docket 50 358 (10 C.F.R. l 2.206) DIRECTOR'S DECISION UNDER 10 C.F.R.12.206 DD 8319, December 16, 19 8 3........................ 1461 i Issuance of Denial of Petition for Rulemakins STATES OF TEXAS, WISCONS' N, MINNESOTA NEVADA.' I 1 AND UTAll Docket PRM.601 DENIAL OF PETITION FOR RULEMAKINO, DPRM 83 3. December 9, 198 3....................... 1473 l l e 9 e

• i h

l t i l 1 l t l L

y-- g he e b 84 af 4 4 'O Commission issuances t O e t

t I C6te as 18 NRC 1303 (1983) CLI 83 31 t UNITED STATES OF AMERICA l NUCLEAR REOULATORY COMMISSION COMMISSIONERS: Nunale J. Palladine, Chairman l Vieter Gillnehy Thomas M. Roberte James K. Asseletine Prederlek M. Sernthal j l In the Matter of Decket Nee. 50 413 50 414 DUKE POWER COMPANY, et al. (Catewha Nucleet Station, Unite 1 and 2) December 6,1983 l The Commission denies the applicant's request for stay of an Appeal Board order that modilled a Licensing Board's order allowing interve. i nor's counsellimited access to applicant's employec witnesses. ' I ~ RULES OF PRACTICEt ATTORNEY. CLIENT PRIVILEGE (APPLICATION TO EMPLOYEES OF A PARTY) o Under Upjohn Co. v. Untred Starts. 449 U.S. 383 (1981), an employer may under appropriate circumstances treat communications from em. l ployees to corporate counsel as privileged under the attorney.cIlent 3 privilege. That does not mean, howeser, that every employce from l' whom a privileged communication is obtained is thereby a " client" rep. resented by corporate counsel, or a " party" to any pending legal disputes for purposes of ABA Disciplinary Rule 7104. = .[ l i I 1343 1' 1 e I

i i 4 RULES OF PRACTICE: ATTORNEY. CLIENT PRIVILEGE (APPLICATION TO WITNESSES) It is'a welldstablished p'rinciple that counsel should be at liberty'to ap2 I pro:ch witnesses for an opposing part). lira t. #/oomshurgh. 427 F. Supp. $93 (D. Mass.1977). That principle is not oserturned by Uplo4n, supra. ORDER On November 17, 1983, we inued a brief order tunpubbshed) in which we deictred action, per. ding the reccept of submissions from the parties, on Duke Power Company's November 15 request for a stay of un order issued by the Atomic Safety and Licensing Appeal Board the-previous dJy. That order, whICh modified 8 No$ ember 10 order of the Atomic Safety and Licensing Board, pctmitted counsel for palmetto Alli. ance to approach Duke's employee.witnenes during breaks in the heat. Ing and after hours in order to scsk their cooperation. The Appeal Board made clear that employees were to be able to decide for themse!.es whether they wished to cooperate with Palmcuo. Duke wn forbidden to instruct emplo)ces not to spcak wtth Palmetto counscl. and was directed to rescind any prior insttust!on to that cliect. At the same time, Palmetto was barred from making any inquiry of en) witnen that directly or indi. rectly solicited information about the custence or nature of any com. munications bet *cen the witness and Duks enunsel. Moreover, the Appeal Board ruled that Duke could instruct the witnesws not to dig. clo:e any such communication with Duke counset 'n Palmetto. The Appeal Board made clear, homeser, that inquiry into underlying facts would be propct, notwithstanding that those facts may hoe been the subject of prior communications between the witnencs and Duke counsel. in its application to us for a stay Duke asserted that the rule of Up/ohn Co. v. UmicJ Starrs, 449 U,5. 383 (1941), made clear that the ettorney.chent privilege attached to communications between Duke and its employee.witnesws. According to Duke,its employees were clients of Duke counsel such that Duke counwl could legally bar contacts with those employees, and any such contacts, even if authorised by the Appeal Board, would constitute a violation of Disciplinary Rule 7104 of I the American Bar Anociation. Duke anerled that it met all the crlieria for luvance of a stay of the Appeal Board's order: likelihood of pre. valling on the merits, substantial harm to itself if a stay were denied. 1.44 i .......a. .m

l l t lack of harm to others if the stay were granted, and public interest con-siderations fasoring the grant of a stay. In our order of Noumber 17, we posed four questions relating to the issues in this matter, and we asked the parties to address whether the criteria for a stay had been met, in out order tod.ty, we do not issue a Unal ruling on the merits of the comples legal issues involved. We do, howeser, make an initial ruling on those topics for the limited ourpose of dctermining whether Duke has met its burden of showleg a hAthhood of prevailing on the merits. Our initialjudgment is thst Duke has failed to meet th.it burden, and that the criteria for a stay thatefore have not been met, for the reasons which follow,' in our vicw, Duke's reliance on U/yohn is misplaced. Under U/yohn, an emplo)ct may under appropriate circumstancet treat certain com-munications from emplo)ces to corporate counsel as prisileged under the attorney client privilege. That does not mean, howeser, that every emplo)ce from whom a privileged communication is obtained is thereby a " client" represented by corporate counscl, or a " party" to.iny rending legal dnpute, for purpases of AllA Disciplin.ity Rulo 7104. Although the Supreme Court in U/yohn rejected the " control group" test for determining when the attornepclient prmlege is applicable, that does not mean that in escry legal dispute insolsing a company, senior corpo. rate utkialt and manual workers stand on the same legal footing simply because both ate company emplo)ces and both may be called to testify. Since Duke's claim that the witncts employees are " clients" and " parties" depends solely on its interpretation of U/yohn, and not on any I proffered indicia of those witness employees' intent to retain Duke's counsci as thcar own of to seek party status, we have no basis to Ond that these indniduals are slients or parties, or anyding other than em. lP ayces and wiinesses of Duke. We do not read Uplohn as having ' overturned the well established principle that counsci should be at hberty to approach witnesses for an opposing party, l'rra v. #loorniburrh. 42717. Supp. 593 (D. Mass.1977). To the estent that Upjohn bars forced disclosure of communications from employees to corporate snunsel, the Appeal Board's order has gone at least as far as did the Supreme Court in U/yohn in protecting the employer's intercsl. Whereas U/yohn barred only the release of certain written communkations, the Appeal Board's order bars l'almetto finm asking, and allows Duke to instruct the witnewes not to reveal, anything 5 I N$ Af t$ 99A4 0Gffa lh4 ##Gir4 IHP$4 $d thf iaW9ffAm4 Al 4468teR84b,4689 Pf4W4: 6Ad IM sleM8f Illa av44flei rtdtem, Pt4 they as met enett thf #t644#84 44 $tsi aft $## IMS I L...... 6

regarding prior communications between the witnesses and Duke counsel.8 l, if the employee witnesses were in fact " clients" and " parties " som#t doubt might be cast on the vahdity of the Appeal Board's order, since it forbids Duke counsel from directing the witnesses not to talk to Palmet-l to counsel. Since we are not persuaded, however, that the witnesses are "clic:ts" of Duke's attorneys (notwithstanding that some communica-I ti::s from the witnesses to Duks counsel may be privileged under the tttorney client privilege). no problem is presented in this regard. We need not reach the question whether Duke's witnesses are also Palmetto's witnesses, since in our siew. Duke's challenge to the vahdity of the Appeal floard's order is no more tahd 6f it is assumed that the wit. nesses a re Duke's alone than ifit is assumed that the witnesses are boni Dukis and Palmetto's. $1nce Duke has failed to carry its burden of demonstrating a likehhood of success on the merits, we need not diwust in any detall the other fac-t:rs involved in determining whether a stay shall be granted. Suflice it l to say that we are not persuaded that Duke would be irreparably [ harmed, or that Palmetto would be uninjured or that the pubhc interest could be sersed, by a departure from the general rule that opposing counsel may hase access to a part)'s intended witnesses We are not intensittse to Duke's cofwern oser Pairf'etto's stated l d::ite to probe the communications which hage taken place tictueen the citnenes and Duke counsel. Indeed, the record shows Palmetto alleging no other motive than that for withing access to the Duke employee-uitneues Nesertheless, we bellese the Appeal lloard's restrictions on the hope of inouiry and of dmlosure are such as to protect Duke's interests. We are entitled to presume that all parties will comply with the lloard's order, both from respect for the lloard's authortly and a regard for the unctions which would flow from any flouting of that older. Duke's request for a stay is therefore DLNlLD. l \\ I l l i 8 eea. a.,ee.inene .r.nonein,4ei..isecai, s.ive,w eeae.... .n.as...,aine em...%s r.imou... a.c. a e..., u. e.. a in,....as is n.. a n... nnev., n...:,...ia a m., o.a.ca inc iw 4e,..i p..a e e,w=i, a me, he, p.a. f.nne w v.a re.+. IM j f

I } The dissenting views of Commluloner Roberts are attached, it is so ORDERED. For the Comminion' SAMUEL J. CillLK Secretary of the Commission Dated at Washington, D C., thin 6th day of Dxember 1983. DISHENTING VIEW OF COMMISSIONER ROMENTS I would hase sta)ed and rescrsed the Licensing lloard's order. Interve. nor's only stated puipow l'or necking contact with Applicant's witneswt during brc.ikt in the heart'1g, to discoser the nature of the communica. lions between Applicant's counsel and its witnesus, wat art improper l one. Tr. 649192. Intervenor's counwl failed to provido any authority in support of lit requcst. Tr 6592. Nesertheten, and our the strong objec. Hon of Appl 6 cant's counwl, the Licensing lloard ordered that Intersenor may contact Applicant's future witnetics (sucpt esecullse lesel witnenes) and that neither Applicant not lit counwl shallinstruct Appli. cant't employec/witnenct not to 9 peak to or cooperate with intersenor's counsel. Tr. 6646 Morcoser, any such instructions previously ghen had to be withdrawn. I,I The Licensing flodrd inued its order apparently on I a theory that Applicant's employee /wlincues are also Interunor's wit. nettet and that not to allow Intervenor's counsel acceu to the witnenct would be unfair. Tr. 6645 46. The Licensing floard placed no restrictions on the nature of the information that could be sought by Intervenor's counsel during his off the. record contacts with the witnesws flowever, the Appeal flodrd, apparently recogniting the esistence of an attorney. client privilege at to certain information known to the witnence, mmll. fled the Lhensing floard's order to provide that Intervenor's counsel may not, during any off the. record contat. Inquire into communkations between the wttneswg and Applicant's counsel that bear on the proceed. Ing and the inues being litigated in the proceeding, ,o.,. ..., y,o,... _, ~,......,,,,,.,,,,,,,4., 1M7 m

r O By modifying rather than reverting the Licensing floard's order, the Appeal Board merely specificd a barrier between privileged communica. Ilone and facts known to the Apphcant's employec/*ltnesses that is im. possible to define or enforce Therefore, and because the Licensing Board should not have taken its entraordinary action without citing clear authority for doing so. I would have stayed and reversed its order. I t e b e 1394

t I Cite se 18 NRC 1309 (1963) CLI.83 32 UNITED STATES OF AMERICA NUCLEAR REQULATORY COMMISSION COMMISSIONERS: Nunale J. Pelledene, Chalfman Vieter 6604nehy Thefnee M. Robotte James M. Aseeletine Prederlek M. Bernthal la the MeMet of DoeketNee.40 378 80 333 l PACIPIC OAS AND ELECTRIC COM9ANY (Olebte Canyon Nweleet Power Plant. UnHe 1 and al December 9,1943 ORDER On June 6.1983 Joint Interses ort petitioned for Commiolon review l of ALAll 728,17 NRC 777 (1983), the Appeal lloard allirmation of inues other than quality anurance addrened in the Lkensing floard de. l cision on Pacific Gas and T.lectric Company's application for a licente to load fuel and conduct low. power testing. The time for the Commlulon to act on the pell.lon, at entended, hat espired and the petition is there. fore deemed denied pursuant to 10 C.fr.it. l 2.786thH5). The separate views of Comminiontre Ollinsky and Aneletine are attached.' d ' Althaven teP6fele veget pege#a ng the dentel or festee est ett retth ettenely hela eteet er e Commtessamef. they ete def es legel tromn eAee e en adl.16en, quen espe #ete esetements 0 e pien4ietly mu6ee line Se,eese the Commiemme mer,te ptweedet na "on the teenta espionation of the reemas the nas et.etwe feties-the seesse6e eseveeme 64 fettet et femangenet fe943 efe sesst Gaevetta lopettle stee 4 eften tid het est fef th teesses fat ebenga s omg ***We sea theet are peashie se intempiste teosta of the i emmaemn 4 deemmen mee.ee reeeeev f IM9 4

1 It is to 0RDERED, j For the Comm6edon SAMUEL J. CHILE 2 Secretary of the Commiselon i ^ Dated at Washington, D.C., i thin 9th day of December 198.1, i NEPARATE YlEWR OF COMMisslONER GILINSKY j (NECY.8M77 REVIEW OF ALAB.734. DIARLO CANVONI i I am diuppointed that in the fol'oming three instances the Comm6e. 1 tion has failed to raw aboge giving: pattkipants in its ptoceedin6e the les l tun around. 4 i

1. The Intervenors wanted to lillsate the adequicy of the hydtopen l

control system, whkh is suppowd to protect a6ainst the burning of lette Quantities of h)drogen which might te generated during an accident. The Hoard refund to hear thli contention on the grounds that thle event is "not credible" and that the intervenors had not surmounted the attin. i ci:1 barriers whkh the Comminton has placed in the way of cono6defing this inue. I thould make clear et the outwt that h)drogen controlle not en acute problem at Diablo Can)on. The containment buildins, unlike that of cet. tain plants, has a tutkiently large volume and h6sh dee6sn Pfenute to l oith:tand a hydrogen burn. While the effects of hydrogen Ate on the continued operability of afety equipment ino6de the containmeni are i not yet clear. the situation here se the some se at other plante and the question it being conddered in a rulemaking, i The problem in this cow, se in pfkit cawe where hydrogen control ces a more alsoincent ufety luue, it that the Commission pero 6ets 6n Pfetending that the accident whkh actually oceutred at 1MI nearly Ave l years neo le "not credible." The hydrogen control system required by NRC's pre Three Mile liland regulatione = whkh ste stillin fatee - le detiened to sore with the emell amount of hydrogen whkh was thought ) to be the :nanimum that could be peneteled in en ace 6 dent, by contreet. it It estimated that during the 1979 Three Mile liland accident septoel. lHe i ~ 1

mately ten times as much hydrogen as this maximum - several hundred 1 kilograms - was in fact generated. released into the surrounding I containment, and ignited. In 1980, during the course of the proceeding on whether to permit Three blile Island Unit I to restart, the Licensing Board asked the Com-mission two questior.a: (1) whether the regulation on hydrogen control i should be waived since a pnma faele case had been made that hydrogen generation at TMI 2 was well in excess of the design basis of the TMI l hydrogen control system; and (2) whether post accident hydrogen gas j control should be an issue in the proceeding. The Commission's re-sponse was that the issue could be litigated but, instead of waiving the discredited regulation, it required any party wishing to discuss the hydro-4 l gen control system to first demonstrate tha't: (1) a " credible" loss-j of coolant accident could occur (2) which would entail the generation of hydrogen, (3) which would burn or explode, (4) causing the breach or leaking of the containment. (5) which,in turn, would result in offsite radiation doses in excess of Part 100 guideline values. The purpose seems to hage been to keep this issue from being pursued here and elsewhere. It is interesting that the Commission, a majority of whose members have persistently denounced NRC's excessive legalism, has consistently followed this most legalistle of precedents. The Comminion should get on with the sul)stJntige task of deciding wh:ther the various contain-ment designs are strong enough to withstand a ltrge h)drogen burn, and whether the equipment in the containment meets whateser environmen-tal quahlication standard the Commission chooses, and forget about this being an " incredible" accident.

2. The second issue is what consideration should be given in emergency planning to the effects of earthquakes on emergency preparedness. When this issue was first raised in the San Ono//c operat-ing license proceeding, the Commluion quashed a quite limited inqWry into the problem by ruling that this issue was of such magnitude that it i

should be resolved in a " generic proceeding" rather than in case by case ikensing reviews or hearings. Now the NRC staff say that they will not undertake such a generic pro-ceeding because they think that the probability of an earthquake severe i i enough to disrupt emergency preparedness occurring simultaneously with, or causing, a reactor accident in too low to justify a regulation. They want to deal with the problem, which affects only reactors on the West Coast, by doing plant specific reviews. Nonetheless, the Appeal libard in Diablo Canyon followed the Commission's directives in San j Ono/ c and affirmed the Licensing Board's decision to exclude the earth-quake contention. t i 1311 1 e u.

. - -..-....... ~..~.

3. The third area of concern has to do with the Commission's policy on considering Class 9 accidents. These most serious accidents dominate th: risk posed by nuclear power plants. even taking into account their

,very low' probability. Indeed, it is pointless to look at the environmental consequences of reactor accidents in environmental statements unless Class 9 accidents are considered'. Prior to the Three Mile Island accident, the Commission's position was that Class 9 accidents were so improbab'e that they did not need to be considered in balancing the costs and benefits of a plant. After the recident (which was, in effect, a Class 9 accident), the Commission chinged its policy to require that such accidents be considered in cases in which the final Environmental Impact Statement had not yet been issued or, if the final EIS had been issued, in which "special circum-stances" were shown to exist. ,Since the Diablo Canyon final EIS had been issued before that change in policy, the controversy in' this case was over whether "special circum-stances" existed. The difficulty is that, instead of deciding this disptite, the Licensing Board resorted to the argument that, because the Appeal Board had found that Diablo Canyon meets the NRC's seisinic design trquirements, no special circumstances exist. Since no plant will receive a license unless it is found to meet NRC's requirements,- the Licensing Board's approach amounts to defining away the "special circumstances" which might justify consideration of Class 9 accidents. This was not the result intended by the Commission when it adopted the new policy. SEPARATE VIEWS OF COMMISSIONER ASSELSTINE i I agree with Commissioner Gilinsky's separate views on the class nine recidents issue. t i ~ 9 1312 i 1 i I m _,_,,n, _m

Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Dr W R Joh son ri ne N. K h Gary J. Edles Dr. Reginald L Gotchy Howard A. Wilber {1,hNt : n i 9 0

.__._.___...._....e_-_, l 1 i Cite as 18 NRC 1313 (1983) ALA B-751 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD 1 I Administrative Judges: - Alan S. Rosenthal, Chairman Gary J. Edles i Howard A. Wilber i 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) December 6,1983 - The Appeal Board denies a third motion seeking the.recusal or dis-qualification of the Chairman of the Licensing Board. The Appeal Board finds that the motion is untimely and further that, as in the earlier recu-sal motions by other parties, the alleged examples of' bias neither stemmed from sources outside the' proceeding nor demonstrated perva ' sive bias. 4 RULES OF PRACTICE: MOTION FOR RECUSAL (OR DISQUALIFICATION) Ordinarily, disqualifying bias must stem from an extrajudicial source ~ unless there is a demonstration of pervasive bias. Housrori Lighting and Power Co. (South Texas Project, Uni _ts 1 & 2), CLI-82-9,15 NRC 1363 (1982).

• t 1313 i

I .,-~% 9 L

3 APPEARANCES Dire Curran and William S. Jordan, III, Washington, D.C., for the New England Coalition on Nuclear Pollution.' MEMORANDUM AND ORDER For yet a third time, we are confronted with a motion under 10 C.F.R. l 2.704(c) seeking the recusal or disqualification of Administrative Judge Helen F. Hoyt as Chairman of the Licensing Board in this operat-ing license proceeding. The prior two motions were filed on October 7 i and October 28, 1983 by intervenors Seacoast Ai.ti-Pollution League ~ -(SAPL) dnd the Attorney General of'the Commonwealth of Massachu-setts (Attorney General),.respectively.: Judge I.foyt denied both in writ-ten' orders entered on November 2 and November 22. On the referral to ' us required by Section 2.704(c), we affirmed those orders. ALAB-748, 18 NRC 1184 (1983); ALAB-749,18 NRC.1195 (1983). The motion now before us is that of another intervenor in the pro-ceeding - the New England Coalition on Nuclear Pollution (Coalition). It was filed on November 23. And, as were the earlier motions of SAPL and the Attorney General,'it is grounded on the claim that, by her con-duct during the course of the proceeding. Judge Hoyt has demonstrated personal bias - or at the'least has created an appearance of such bias - against the intervenors and town representatives participating in the proceeding. On the date of her receipt ofit (November 28), Judge Hoyt summarily denied the motion with the observation that the matters addressed there-in had been ruled upon in her previous orders on the other recusal motions. In compliance with the Section 2.704(c) mandate, this latest order also was referred to us.' We affirm. 1. The merits of the Coalition's motion need not detain us long. The substance of every example of asserted bias set forth by the Coalition was likewise advanced in one or both of the two recusal motions passed upon in ALAB-748 and ALAB-749. The conclusions reached in those dccisions are therefore equally applicable here. In short, as its predecessors, the Coalition's motion must fail because (1) all of the cited rulings, conduct or remarks of Judge Hoyt occurred during the l 3 A copy of the order is attached as Appendix A to this opinion. t 1 r 1314 ^ m' s yw

• -gm,m,~
  • r y Ma

. _. ~. i

1 i

u i I course of the proceeding; (2) the Commission held in South Texas 2 that, 4 + i ordinarily, disqualifying bias must stem from an extrajudicial source; and (3) although the requirement of an extrajudicial source might not obtain in the instance of pervasive bias, the incidents relied upon by the { movants, whether considered separately or in combination, do not demonstrate the existence of such bias. t Despite its acknowledged familiarity with ALAB-748,3 the Coalition j does not explicitly ask that either the first or the third of these conclu-sions be reconsidered. It does, however, challenge the correctness of the Commission's South Texas ruling with respect to the generally prevailing disqualification standard.* As we observed in response to similar chal-lenges on the part of SAPL and the Attorney General, any criticism of that ruling must be addressed to the Commission. ALAB-748,18 NRC l at 1188; ALAB-749,18 NRC at 1200 n.13.3 2. In ALAB-749, we also discussed the assertion of the applicants and the NRC staff that the Attorney General's October 28 filing of his l recusal motion was untimely. Without expressly endorsing that claim, we noted "our concern that the motion was not filed with any apparent sense of urgency." In that connection, we took note of both judicial and Commission precedent to the effect that a request for disqualification or recusal must be filed promptly once. the information or developments-undergirding the request have come to the fore. Because all of the events referred to in the Attorney General's motion had occurred no later than the end of August - i.e., at least two months before the . motion was filed - we expressed the view that the Attorney General had not fulfilled that obligation. ALAB-749,i 8 NRC at 11.98-99. 1 i Even though it relies on the same alleged manifestations of bias as 3 had the Attorney General (or SAPL before him), the Coalition remained l on the sidelines for several additional weeks before filing its motion. i (Indeed, as above seen, when that motion reached Judge Hoy't on Novem,ber 28 both she and we had.already acted on both the SAPL and Attorney General motions.) Further, although in his papers the Attor. ney General offered a partial (albeit unsatisfactory) justification for not having moved more expeditiously, there is not a single word of explana- \\ J i .2#ausson Larhriar sad Power Co. (South Texas Project, Units I & 2). CLI-82 9.15 NRC 1363 0982). l '3 See Motion by New England Coahtion on Nuclear Pollution for Disqualincition of Judge Hoyt (November 23.1983) at 29. The motion was, of course, filed before issuance or ALAS-749. 4 #at 5. 3 in acting upon the sAPL and Attorney General motions, we had before us the responses to them that the applicants and the NRC stair Gled with Judas Hoyt. In the circumstances, we have tressed those re-sponses as if they had been directed to the Coalition's motion as well. E j- ~ 1315. l: l l I n, ~ E ~ N w," P ,? p .{ +

1. T'

'?..'

= g

1. _ _

ti:n in the Coalition's motion as to the reason for its inertia.* It thus seems a fair inference that the Coalition assumed that it was free to . twait Judge Hoyt's disposition of the previous recusal motions before putting in its own o'ar. A canvass of the readily available precedents on the question would have, of course, immediately disabused the Coalition of any such notion. Beyond that, it might have occurred to the Coalition that the motivation underlying its filing of a recusal motion that simply rehearsed the assertions made by other parties in prior - and denied - motions of their own might be misunderstood.' In the circums'tances, we are persuaded that, apart from its lack of !!gil merit, the Coalition's motion was untimely'without any suggested or discunible cause. For this further and independent reason, its denial by Judge Hoyt must be upheld. The November 28,1983 or' der of Judge Hoyt is affirme4 ' j i. ~ It is so ORDERED. -FOR THE APPEAL BOARD ) C. Jean Shoemaker Secretary to the Appeal Board-6 In tlus regard, it is worthy of note that even SAPL felt ccnstramed to dealin its motion with the timeli-f. I ness quesuon sAPL's Motion for Disqualincauon of Judge Hoyt (october 7.1983) at 24. Accordmg to sAPL, at the conclusion of the evidentiary hearing at the end of August all of the intervenors were con- + f fronted with an immment deadline for the submission of contentions on offsite emergency response l. planning issues. That being so, sAPL mahtained (and we implicitly agreed),' "the five-week delay in j filing titsi motion is... not grounds for waiver of its risht to move for disqualiGcation." Needess to i say, the Coalition's November 23 Gling cannot be justined on a hke basis. 7At the very least, it is not customary for a tribunal to receive motions at well. spaced intervals that seek precisely the same relief on essentially the same factual averments. This is so even where, unhke l here, the motions do not constitute a repetitious attack upon the personal integrity of the tribunal of a m1mber thereof. Accordingly, to asoid any possible (albeit erroneous) implication of an unworthy purpose, it was incumbent upon the Coahtion to emplain the timing of its action. on that score, it should be observed that leaving asede its opportunity to Gle its own motion at a considerably earlier date, the Coahuon might well have made its views known in reply to the monons filed by sAPL and the Attorney General The Coahuon had the same right to respond to those motions as did the apphcants and the stair but nonetheless remained entire!y silent. - 1316 e I

1. PD-w@*gdm'w..qqwp p

yg 94, gp..Wh bgp ph

i l l s APPENDIX A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Sefore Administrative Judge: Helen F. Hoyt In the Matter of Docket Nos. 50-443 OL 50-444-O L (ASLBP No. 82-471 02 OL) PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Seabrook Station, Units 1 and 2) November 28,1983 ORDER. ,On November 23,1983, NECNP filed " Motion by Ne'w England Coa-lition on Nuclear Pollution l'or Disqualification of Jtidge Hoyt." The-motion was received by this Judge on November 28,1983. The matters addressed in the subject motion have previously been I ruled upon by this Judge on two occasions (November 2 and 22,1983). The first ruling was in response to SAPL's motion.of October 7,1983 and the second was in response to MassAG's motion of October 28, 1983. NECNP's motion is denied. The matter is referred to the Atomic Safety and Licensing Appeal Board pursuant to 10 C.F.R'. { 2.704(c). Helen F. Hoyt ADMINISTRATIVE JUDGE Bethesda, Maryland 1317 ~ i .~...+---~.--------..----% O

Cite as 18 NRC 1318 (1983) ALAB 752 UNITE'D STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC EAFETY AND LICENSING APPEAL BOARD Administrative Judges: Al' n S. Rosenthal, Chairman a Dr. John H. Buck In the Matter of Docket Nos.STN 50 553 STN 50-554 TENNESSEE VALLEY AUTHOR'JY (Phipps Bend Nuclear Plant, Units 1 and 2). December 6,1983 The Appeal Board grants the applicant's motion to terminate the Board's jurisdiction over the single remaining issue pending in this con-struction permit proceeding, based upon the facility's cancellation. RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES Parties to appeal board proceedings ~have an obligation to keep the board informed of all significant developments that may bear ori deci-sions in the proceeding. Tennessee Valley Authority (Browns Ferry Nucle-ar Plant, Units 1,2 and 3)l ALAB-677,15 NRC 1387,1388 (1987). APPEARANCES Hsrbert S. Sanger, Jr., Lewis E. Wallace, and James F. Burger, Knoxville, Tennessee, for the applicant, Tennessee Valley Authority. 1318

.. - ~ ~. - - - -. - .~ f* l i [ l MEMORANDUM AND ORDER p

1. On the authority of our recent Cherokee decision,t we grant the applicant's November 30,1983 motion to terminate the appellate juris-diction retained over this construction permit proceeding in ALAB 506.2 The situation here is identical in all material respects to that in 4

Cherokee. The retained jurisdiction was with regard to a single issue: the environmental effects associated with the release of radioactive radon gas (radon 222) to the atmosphere as a result of the mining and milling of uranium for reactor fuel. Although the ultimate Commission determi-nation on it has not as yet been reached,2 that generic issue has no fur-ther importance insofar as the Phipps Bend facility is concerned. This is because the applicant has cancelled the facility, 4 2. In granting the sought relief, we are constrained to record our con-j viction that the applicant was' extremely tardy in bringing our attention to the facility cancellation. Appe' ded to its motion are two letters sent l. n by the applicant's Nuclear Licensing Manager to the NRC Director of j Nuclear Reactor Regulation. The first letter, dated October 26,1982 - i f.e., more than a year ago - referred to the fact that, as the NRR Direc-tor was said to be already aware, "TVA has made a decision to cancel i . [ thel Phipps Bend Nuclear Plant." The letter went on to explain that i as purpow was to inform the. Director that TVA was engaged in discus-sions looking to the leasing of portions of the site to a stee'l company. In the second letter, dated February 16, 1983, the official alluded to the 1 prior communication "regarding TVA's decision to cancel the Phipps } Bend Nuclear Plant" and requested the NRik Director to withdraw the construction permits that'had been previously issued for th'e facility. En- ) closed with that letter were copies of a document entitled TVA Cancella-tion of the Phipps'BendNuc/ car Plant (February 1983). The first sentence of the introduction to 'the docu' ent stated that the cancellation decision m ' 'had been made on August 25,1982. 4 j We were not furnished with copies of either of these letters. Nor were g we otherwise advised by the applicant (or fet that. matter by the NRC i stafD of the facility' cancellation. Two months ago, however, the cancel-j lation came to our attention through a different source. Accordingly, by j letter of October 19, the Secretary to this Board requested apphcant's counsel to move promptly to terminate the appellate jurisdiction f = I Duke Pouve Co. (Cherokee Nucteer station. Unite I,2 and 3) ALAS 745, il NaC 746 (19s3). s 2 8 NRC $33,550 (1978).. 3 ee Chere4er, apre.18 NaC at 747. S 9, 1 1319 4 l i, m ' i e +s' e v ,.E.,_~-.. . I

retained in ALAB-506. On November 22, nothing having been heard fr:m counsel in the meantime, the Secretary wrote to him again. Eight days later, the motion was filed. Just las' year, we had occasion to remind this applicant ofits obligation 13 keep.us informed of "all significant developments that may bear on decisions in pending proceedings." Tennessee Valley Authority (Browns Firry Nuclear Plat.1, Units 1,2 and 3), ALAB-677,15 NRC 1387,1388 (1982). True enough, the Browns ferry proceeding was in active litiga-ti:n when the significant development occurred. But while the fact that, in c:ntrast, the proceeding at bar has been ' dormant for some time might explain the failure to have notified us immediately of the Phipps Bend cancellation, it cannot justify a fifteen month delay. Moreover, even ~ were it to be assumed that applicant's counsel had forgotten entiri:ly tbout the retained appellate jurisdiction and thus had thought in August-1982 that the adjudicatory proceeding had already come to an end, the question would remain why the Secretary's October 19 letter to him did n:t trigger the prompt action requested therein. It is so ORDERED. FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board D 4 1 6 1320 b o w ' 3' 9

-. - ~.. ? Cite as 18 NRC 1321 (1983) ALAB-753 i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: Christine N. Kohl, Chairman Dr. W. Reed Jo".. son i Howard A.Wilber in the Matter of Docket No. 50-382 OL t.OUISIANA POWER & LIGHT COMPANY (Waterford Steam Electric Station, Unit 3) December 9,1983 'The Appeal Board in this op'erating license proceeding denies as' not now presenting a significant safety concern a motion to reopen the record on an issue relating to basemat cracks, denies a second motion to reopen on the synergism issue because of a lack ofjurisdiction, and, on sua sponte' review, alTtrms the Licensing Board's partial initial decision on the adequacy of applicant's emergency planning brochure. RULES OF PRACTICE: REOPENING OF PROCEEDINGS A motion to reopen must satisfy the following three-part test: (1) Is the motion timely? (2) Does it address significant safety (or environmenta0 issues? 0) Might a different result have been reached had the newly proffered material been considered initially? Metropolitan' Edison Co. (Three Mile Island Nuclear Station, Unit No. 4 1), ALAB-738,18 NRC 177,180 (1983), and cases cited. ,l l' 1321- ~ 4 t 1.. l l l t

RULES OF PRACTICE: REOPENING OF PROCEEDINGS The proponent of a motion to reopen bears a heavy burden. Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-462,7 NRC 320,338 (1978). RULES OF PRACTICE: REOPENING OF PROCEEDINGS A successful movant must provide with its motion to reopen more than bare allegations or simple submission of new contentions. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CL1-81-5,13 NRC 361,363 (1981). Any supporting material should be provided with the motion so that the test for reopening can be mean-ingfully applied. RULES OF PRACTICE: REOPENING OF PROCEEDINGS A party that seeks to raise a new, previously uncontested issue through a motion to reopen the record must satisfy both the reopening criteria and the late contention criteria set forth in 10 C.F.R. j 2.714(a)(1). Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL182 39,16 NRC 1712,1714-15 (1982). RULES OF PRACTICE:

SUMMARY

DISPOSITION A party seeking summary disposition nas the burden of proving the absence of a material issue of genuine fact; an opposing party's failure to respond is thus not necessarily fatal. RULES OF PRACTICE: REOPENING OF PROCEEDINGS t (BOARD JURISDICTION) Appeal boards are without jurisdiction to consider a party's request to reopen the record on an issue specifically addrosed in an earlier decision that has become administratively final. See Public Service Co. of kdiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-530,9 NRC 261,262 (1979); Public Service Co. of New Hampshire' (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695-96 (1978). See generally Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551,9 NRC 704 (1979). 9 1322 9

m RULES OF PRACTICE: REOPENING OF PROCEEDINGS i l Undocumented newspaper articles on matters with no apparent con-nection to the facility under consideration do not provide a legitimate basi, on which to make an evidentiary finding or to reopen a record. TECHNICAL ISSUES DISCUSSED Cracking and moisture in concrete. APPEARANCES Carole H. Burstein, New Orleans, Louisiana, for Joint Intervenors Oys-tershell Allia,nce and Save our Wetlands, Inc. Bruce W. Churchill, Ernest L. Blake, 'Jr., and Delissa A. Ridgway, Washington, D.C., for applicant Louisiana Power &' Light Company. Sherwin E. Turk for the Nuclear Regulatory Commission staff. DECISION In Al' AB-732,17 NRC 1076 !.1983), we ' affirmed the Licensing Board's November 1982 partial initial decision (LBP-82-100,16 NRC 1550, as modvied, LBP-82-112,16 NRC 1901) 'concerning certain emergency planning and synergism contentions in this operating license proceeding. Three ma'tter's remain for our consideraiion: sua sponte review of the. Licensing Board's second partial initial decision (LBP-83 27,17 NRC 949 (1983)) on the issue of the adequacy of appli-cant's emergency planning brochure,' and two motions to reopen the record filed with us by Joint Intervenors subsequent to that decision. For the reasons set forth below, we deny one motion to reopen,' dismiss the other for lack ofjurisdiction, and affirm LBP 83-27. 3 Joint Intervenors raled except ons to LBP.83 27, but failed to brief them. Accordingly, in an unpub-lishi:d order entered August 17,1983, we dismtssed their appeat As is our practice, however, we under-take here on our own initiative a review or that decision and the underlying record. See offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB-689,16 NRC 887,890 l (1982). t I, i + 1323 l l --~--;-~~--- ~ l l c

~. I. We recently reiterated the three-part test that a motion to reopen must satisfy: "(1) is the motion timely? (2) Does it address significant safety (or environmental) issues? (3) Might a d.frerent result have been reached had the newly proffered material been considered initially?" Metropolitan. Edison Co. (Three Mile Island Nuclear Station, Unit No. .i 1), ALAB-738,18 NRC 177,1801(1983), and cases cited. The propo-i n:nt of such a motion thus has a " heavy burden." Kansas Gas and Elec-tric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-462, 7 NRC 320, 338 (1978). A successful movant must provide with~its motion more than " bare allegations or simple submission of new contentions." Pacific Gas and Electric Co. (Diablo Canyon Nuclear Powtr Plant, Units I and 2), CL1-815,13 NRC 361,363 (1981). It is not enough merely to' express a willingness to provide unspecified, addi-tional information in support of the motion at some unknown date in the future. Any supporting material should be provided with the motion so that the test for reopening can be meaningfully applied. A. Joint Intervenors' first motion to reopen concerns the May 198,3 discovery of hairline cracks in the concrete foundation mat on which the' Waterford facility rests.2 Joint Intervenors claim that these cracks, and-the water found seeping through them, " raise fundamental questions about the integrity of the plent's design and the effect [they} will have on future safe operation" of the' facility. Memorandum in Stipport of Motion to Reopen Contention (July 25,1983) at 2. Joint Intervenors assert that similar cracks were found in 1977 and that it raised this matter as an issue through its original contention 22. According to movan'ts, the' cracks and associated moisture are at odds with the theory on which Waterford was designed - i.e., that the facility is to be j " watertight." In their view, this has serious implications for the public safety, raising, for example, the prospect of radioactive materialleaking down through the cracks and eventually contaminating sources of drink-ing water. 2 This "basemat" is a rectangular structure or steel-reinrorced concrete 380 feet long. 267 reet wide, tnd 12 reet thick. The Reactor Bmiding. Reactor Auxihary Building. Fuel Handims Buildmg. and Component Coohng water system structure rest on this concrete -island." Final safety Analysis Report (FsAR).j 3 4.1. 1324 n e 6 4

i The focus of our concern here is on the second reopening criterion: whether Joint Intervenors' motion addresses a significant safety issue.2 As noted, movants rely principally on a May 28,1983, article in Gambit magazine concerning newly discovered hairline cracks and moisture in the foundation mat of the Waterford facility. The article also refers to the discovery in 1977 of similar cracking and seepage, and to thesuppos-edly watertight design of the plant. See Applicant's Answer (September 30, 1983). Attachment 7. The article alone does not provide a basis for reopening the record. It reports certain facts - i.e., the existence of hair-line cracks in 1977 and 1983 - that are not really in dispute, but fails to explain their significance vis-a vis the safe operation of the plant.* The Gambit report, however, does suggest a basis for further inquiry. Several such inquiries have been undertaken. In a routine inspection conducted in May 1983 NRC inspectors examined the foundation mat 'and found a very small amount of seepage, but no visible cracks. The 3 oint Intervenors base their July 25 monon prmcipally on a May 28.1983, artgle in Gamber massiine J that discussed the May 11 discovery of moisture and cracks in the Waierford foundat on Although it could reasonably be argued that joint intenenors should hase Sied their monon earher. no party really disputes that it is timely and therefore satis 6es the Grst of the three reopenmg critena. To the estent that Joirrt Intervenors may seek to reopen to litigate the 1977 discovery of cracks in the basemat. however, theis nouon is grossly out of ume. In a rekted sein, appixant argues that, in addition to the three reopemns crnena. Joint Intersenors must sausfy the fise cntena enumerated m 10 C F R.12 714taMI) gosernmg the admnsu n of late ~ contenuons. See 10 C.P R. t 2.7144bt in applicant's sico. Jomt Intersenors are seekms to taae a new. . previously uncof: tested nuue. l.lnder Paci/k Gas sad Ortrne Co. (Diab 60 Canyon Nuclear Power Plant, thuis I and 2h CLI.82 39.16 NRC 1712,171415 (1982). Jomt Intersenors must therefore fu:Gil both the reopening criteria and the late contention crneria. We agree with appucant's staten.ent of the gosernmg precedent, but disagree that Jomt intenenors are raising a wholly new and previously uncon. tested issue in this proceedms. Their contenuon 22. as rephrased and ecmirsed ey the Lwensms Board in an unpublished order dated september 12.1979. read; "Apphcant has failed to discover, acknowledge, report or remedy defects m safety related con. crete construction." LBP.8148.14 NRC 577. 880 (1981). Jomt Intervenors' then-counsel apparently acknowledged that the contention lacked the basis and specificity required by our Rules of Pracuse. /J. at 878 79. See 10 C.F R. t 2.714(b). The Licensms Board nonetheless admitted it, and, due to its very breadth,it encom. passes the specific claims of defective concrete construction now before us. Those are the periment con. sideranons for our present purposes - not the Licensing Board's hkely error in admitimg such a broad contenuon m the first place. Moreover, it is no answer that Joint Intervenors " abandoned" contenuon 22 by not respondmg to ap. plicant's monon for summary judgment and are therefore estopped from resurrecting it now., As the Licensms Board correctly pomted out, the party seekmg summary sudgment has the burden of provmg it!e absence of a material issue of genuine fact; an opposms party's failure to respond is thus not necessarily fatal The latter sarnpty runs a greater nsk that the mouon will be granted - as it was here. See L BP-8148. siers.14 NRC al 883. In sum, the matter Jomt Intervenors now raise is fairly encompassed within its original, albeit overly broad, contenuon 22. accordingly, they are not required to satisfy the Ove factors set forth m 10 C F R. i 2.714(aHit in any event, our determmauon of the sigmficarne of the issue raised by their motion bee pp.1325 28 m/rol renders this matter academic. 8 Jomt Intervenors' and GamWs discussion of the cracks discovered m 1977 is somewhat misleading. Ttey state that apphcant reported the cracks to the NRC as a "sigm6 cant construcuon denciency

• Jomt intertenors' Memorandum at 4; Applicant's Answer. Attachment 7. See 10 C F R. t 50 55(e). In fact, after evaluaung the cracks, applxant mformed the NRC that this was aos a reportable sismficant den.

ciency in construcuen. Nor did the NRC assue a nouse of violanon. See Appigant's Answer at 20. As. tachment 5. Attachment 6 (Inspect on Report No. 50J,42/77 08 (september 28,1977)) at 9. I 1325 } I 4 e

e inspectors reached no conclusions on the safety implications of the m:tter. Id., Attachment 4 (Inspection Report No. 50-382/8318 (June 30,1983)) at 5-6. A special Inquiry Team established to investigate the cracking and other matters at Waterford issued a report on July 14, 1983, in which it recommended that applicant obtain "an independent engineering evaluation of the common basemat cracking and seepage matt:rs." See Board Notification 83133 (September 15,1983), Enclo-sure (" Inquiry Team Report") at 12. Whether in response to this report, the Gambir article, joint Intervenors' motion, or some other impetus, applicant requested liarstead Engineering Associates, Inc., to perform such a sttidy. Applicant has submitted the liarstead Report as an attachment to its r: ply to Joint intervenors' motion. First, the report addresses the cracks themselves. All are so small that they can be characterized only as " hairline," and the existence of many can be inferred solely from the presence of moisture. liarstead Report (September 19,1983) at 10,26 Th2 report points out that such cracking is expected in reinforced con-crete structures and is generally caused by tensile forc'es, drying shrinkage, thermal gradients, and settlement. Id. at 24.5 According to the report, the cracks "ldol not give any evidence at all of any structural distress," and "are oflittle concern with respect to the structural adequa-cy of the mat." Id. at 24,25.* The liarstead Report also analyzes the moisture anociated with the h irline cracking. It finds a minimal amount of moisture (probably ground water) and no evidence of scepage from standing or draining water. Id. at 10, 25. Further, the waste management system i.i adequate to eliminate the possibility of any ground water accumulation. Id. at 1112. The report also determines that there are not enough chemical agents in the moisture present in the cracks to have any corrosive effects. Id. at 32. More important, the authors of the report find no evi-dence of any corrosion of the steel reinforcing bars (rebars). /d at 34.' Any evidence of iron or rust is thought to originate from pipe threading or sweepings on the surface of the concrete. Id. at 39 40. The report therefore concludes: "there is no evidence of any process which has been or could be detrimental to the structuralintegrity of the foundation m t." /d. at 40. 8 The report notes that although overall settlement or the structure was tmtially greater than espected, at has remamed constant since 1979. Harstead Report at 8. 23

• A secced report reaches the same conclusion, su Harstead Report (october 12,1983) at 20-23.

'The report enpla ns that a passavatmg film forms on the steel rebars throvsh contact with concrete. This rilm protects the rebars from corrosion unless there are entremely hish levels of corrosion-mducing factors present. The levels of such asents ai % sterford are mets below that threshold. Harstead Report at 29 34, Appendia M. 1326 b = w +o-a e._ w

.~. Applicant has also submitted the affidavits of two engineers from Ebasco Services Incorporated, the architect engineer of Waterford 3. Both are consistent with the Harstead Report. One elaborates on why controlled cracking, such as that discovered in 1977 and 1983, is expect-ed and necessary for the transfer of tensile loads from the concrete to the embedded rebars. Affidavit of Joseph L. Ehasz (September 27, 1983) at 2,6-7. See also American Concrete Institute Standard Building Code Requirements for Reinforced Concrete, ACI 318-63, j 1508(b) and commentary for i 1508. The other aflidavit addresses the negligible amounts of corrosion inducing agents in the moisture associated with the cracking and concludes that there is no basis for expecting any sig-nificant corrosion. Affidavit of William F. Gundaker (September 27, 1983). The NRC stairs position is generally in accord with that of applicant and the Harstead Report.8 The staff performed an. audit of applicant's analysis and design of the foundation mat, reviewing both.the original Ebasco analysis and the recent Harstead Reports. Affidavit of John S. Ma (November 28,1983) at 12,3 7.' Based on this review and visual examination by NRC personnel, the stafT concludes that "the cracks and water seepage do not represent a challenge to the structural integrity of the foundation basemat." /d. at 3. The staff considers the methodology of applicant's structural design and analysis to be "sulliciently conservai tive and... acceptable," even takin's account of the discovered cracking. /d. at 6.5 More important, the strength of the basemat itself, as well as that of the underlying foundation soils, is considered adequate to support the structures above. Id. at 9; AtYidavit of Raman Pichumani (November 28,1983) at 3-7,' The staff also concludes that the water associated with the cracking. does not threaten the stability and integrity of the basemat. Affidavit of - John S. Ma at 7. It agrees with the Harstead Report that this moisture'is proba,bly ground water that has, seeped through joints and cracks. Id. at

9. See pp.1328-29'and note 12, Iq/ra. It also agrees that the chemical composition of the seepage is not likely to cause corrosion of the steel 8 Thee position is renected in several a#ldevies attached to the NRC stan's Answer to Joent intervenors' Motions to Respei Contentions 8/9 and 22 (November 28.1983).

'In addition. the stafr solicited and received rnore detailed inrormation Trom applicant on a number or areas. Afridevis orJohn s. Ma at 2. Astachments I and 2. M The september 19 Herstead Report (at 24-25) did not identity a particular source or the crackins. The seafr. however. beleeves the cracking descovered in 1983 is the result or " tensile stresses generosed by flemure, torsson, and punching-induced sheer strees, as a result or the weight or the structures (the dead losa) and their location on io, or the mat." Affidavit or John s. Me at 7. on the other hand the 1977 cracks apparently were couesd by sesi settlement.14. at 7-9. The staff agrees with an icant (sw note $. a sacre) that there has been no agerecent settlement once 1979. /4. at 9; Affidevit or Raman Pichumani (Novemter 28,,1983) at 5. 7. - c 4 i, . r, i 1327 ) 1 m.....-,-..v~~,-.~.-w -~~--~v-*

• ~~*~w
• 4 l

e 4 [. j r -.. -, r e

rebars. Affidavit of John S. Ma at 10. But despite its overall favorable evaluation of the strength and adequacy of the foundation mat, the stalT points out that "significant changes in loads or environmenital conditions ^ over the course of time" could affect its current conclusions. Id. at 3. The staff will thus require applicant to establish a surveillance program to tssure the continuing integrity of the foundation mat. Id. at 3,10-11; Affidavit of Raman Pichumani at 7-8. The Harstead Reports and the affidavits submitted by both the staff cnd applicant convince us that the cracking and related moisture do not n:m present a significant safety concern respecting the integrity of the 7. J foundation mat at Waterford 3.n We agree with the staff, however, as to' the desirability of a surveillance program to assure the continued validity of this conclusion. We also believe that the continued integrity of the foundation mat is so important to rafety that we urge the staff to require the formal incorporation of a surveillance program into applicant's technical specifications. See Portland General Electric Co. (Trojan Nuclear Plant), ALAB 531,9 NRC 263,273 (1979). Because of our conclusion of no present safety significance of the cracks and moisture in the basemat, it follows that a difTerent ultimate result could not have been reached by the Licensing Board had Joint in-tervenors' claims been presented to it during the hearing. Reopening of the record for further consideration'of this matter thus is not. warranted,- and the motion is denied. Notwithstanding our unequivocal conclusion, on the basis of the infor-mation submitted to us, that the cracking and moisture in the Waterford basemat have no safety significance, we have one further observation. Both the stafT's Safety Evaluation Report (SER) and applicant's Final Safety Analysis Report (FSAR) use the term " watertight" when refer-ring to the foundation mat and the structures resting on it. See SER, NUREG-0787. (July 1981), { 3.4.1; FSAR, 3.4.l'. It is not clear, however, whether it is the basemat and specified structures that are to be watertight or just the passageways into and out of those structures. Nor is it apparent what is meant by watertight - a perfect barrier against water intrusion of all sorts, or something less. See, e.g., Affidavit of Joseph L. Ehasz at 4.12 A further inconsistency arises from the fact that H As for joint Intervenors' concern about possible contamination of drinking water. this does not tppetr possible at waterford 3. The common foundation mat is below the natural water table. Thus. ground water exerts hydrostatic pressure upward, under the foundation mat. precluding 1he downward ritterms a f contammated water through the mat. See FsAR. 66 2.4.13.3. 2.5.4.11; Harstead Report at 25; Afndavit of Raymond O. Gonzales (November 28,1983) at 2 3. 12A r11ated question anses from Dr. Ma's affidavit. He states that "ltlhe water seepage... appears to be due to the absence of waterproofing membranes under and around the mat." Affidavit of John s. Ma - at 9. See also id., Attachment 2. Attachment at 6. The stafr fails to explain, however. whether such wLterproofing is er should be required in the giant design, a I ~ 1328 P .?Wel r a gW @ eem ea.se p e9 p e 6 D D

i l 4 I the facility is designed to an ACI standard that assumes a certain amount of cracking. See SER, f 3.R.5; ACI 318 63, { 1508(b). Where there is cracking, it is reasonable to infer the presence of moisture, par-ticularly in an environment like that in which Waterford is situated. And, as we have seen, moisture is in fact present in the Waterford base-n"t cracks. We thus assume that the inconsistencies arising from the various references to the foundation mat as watertight are only semantic or inadvertent;n and that it is only the passageways to and from certain structures housing safety related equipment - not the foundation mat itself - that are intended to be truly watertight, as that term is ordinarily understood. If our assumptions are correct, applicant should amend its FSAR accordingly. See generally 10 C.F.R. (( 50.34(b),50.59. If our as-sumptions are not correct, however, we expect applicant and the staff to advise us of that fact promptly. B. Joint Intervenors' second motion seeks "to reopen Contention 8/9 with respect to Synergism." Th'at contention alleged: Applicant failed to properly evaluate the cumulative and/or synergistic effects oflow level radiation with environmental pollutants, known or suspected to be carcinogens. In ALAB-732, supra..we concluded that the great weight of the evidence refuted Joint Intervenors' claim that radioactive releases from Waterford ,3 would react synergistically with,the chemical pollutants of the lower Mississippi River area, causing higher levels of cancer than would be ex-pected ordinarily. Specifically, we found that (1) the radiation dose esti-mates projected for Waterford were property derived and are conservative; (2) a synergistic effect between these low radiation doses and chemical agents has not been scientifically demonstrated and is con-sidered very unlikely; and (3) even if synergism were to occur at this level, the additional dose from Waterford is so low (especially compared -to natural background radiation) that it is exceedingly unlikely to cause any measurable enhancement in preexisting effects.17 NRC at 1083-90. By letter dated September 14, 1983, the Secretary of the Commission informed the parties that the Commission had declined to review. I ALdB-732, and that our decision had becomeLfinal agency action on { September 7. Accordingly, we acree with the staff and applicant that this Appeal Board is without jurisdiction to consider Joint Intervenors' re-quest to reopen contention 8/9 - a matter specifically addressed in an i 1 U we reiterate that the cracking and moisture in the roundation met have treen shown to be without j sarety sigm6cance. 't j. 1329 ? w. _ _._ _ _. _ L

s earlier decision that is now administratively final. See Public Service Co. of Irdiano -(Marble Hill Nuclear Generating Station, Units 1 and 2), ' ALAB-530,9 NRC 261,262 (1979); Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695-96 (1978).84 i Even if we still did have jurisdiction over this matter, we would nevertheless be compelled to deny the motion as totally unsub-st:ntiated.u In support of their motion to reopen the record on synergism, Joint Intervenors supply only an article from the October 31, l 1983, edition of The Times Picayune /The States-Irem.'The article reports on an English television documentary about "lallarming levels ofleuke-mia and cancer... found in children who live near a nuclear power plant [Windscale] in northwestern England." It contains not a single i reference to a synergistic relationship between low levels of radiation and chemical pollutants and a possible link to the reportedly higher cancer levels. Moreover, Joint Intervenors themselves offer no such hypothesis.t* We also note in passing that it is extremely unlikely tha' there could t be any plausible connection between Windscale and Waterford because cf the numerous major design differences in the two facilities. First, Windscale (which is no longer in operation) was a plutonium-production recctor;" Waterford is a power' reactor. Second, Windscale was air - cooled / graphite moderated; Waterford is water-cooled / water moderated. Third, and perhaps most significant, Windscale had an "open cycle" reactor cooling system - f.c., primary coolant air entered the reactor, w 88Ndther applicant nor the stafr addressed whether we have junsdictaon to rule on Joint intervenors' mrtion to reopen contention 22. Nonetheless, we conclude that we do. At the time that monon'was filed, we had not yet wholly terminated our review of that part of the proceeding mot spretree#p addressed in ALAB.732. In other words, had we already completed our review of the Licensing Board's second partial fnitial decesson at the ume Joint intertenors filed their monon to reopen on the cracked slab issue, we would have lacked jurisdiction and would have been obliged to refer the motion to the Commission. See scarreap Verseas EArcar and faser Co. (North Anna Nuclear Power station. Units I and 2). ALAB-551. 9 NRC 704 (1979). is Thus, because of the compione lack of basis for the motion (as discussed belom), we decline to refer it + e the Director of NRR - the course we took in MarNr Nd sanpre,9 NRC at 262. l'1.4 ALAB-732. we cnucina Joint Inaervenors' similar reliance on undocumenced newspaper articles on sutnects with no ossensible connecuon to the Waterford facility. See 17 NRC at 1089. such material simply does not provide a legitimate basis on which we can make an evidentiary nnding or reopen a record. 17 Us assume that this is the Windscale reactor to which the newspaper article refers. There was ' however. another umt also referred to as Windecele, a small carbon 6onide. cooled / graphite-moderated I ccentercial power reactor that operated from 1963 to 1981. Src. IV laarrassemel Asener Enerier Asency - Drectory e/Nardeer Jtescurs 227 32 (1962); 28 NascArer Emireseernes laarraersonal No. 348 et 13 - (November 1983). our belief of an unlikely connection between windscale and waterford is unenected ^ by wluchever seasser the newspaper article intended. 6 1330 i ~ ?. E l l 2 aen di. a 4w%>s '-M, e

• F'"M*

Opig.,._J., p J $so mi-a

pw_,

4 e r 'N v 4 A L C-j A m o ,,,c.y,, e

. - -_ ~. - i coolea the core and moderator, and was discharged directly to the atmos-phere through a 400 foot stack;is Waterford has a closed loop cooling system with many barriers (including a containment) between the core and the outside environment. Fourth, Windscale was based on the state-of the art design or the 1950s; Waterford's design and more sophisticat-ed instrumentation reflect the experience and technological advances of the past 30 years. See 26 Nuclear News No.14 at 11617 (November 1983); 15 Nucleonics No.11 at 130,204 05 (November 1957); FSAR (( l.0,1.2, 5.1; Final Environmental Statement (FES), NUREG 0779 (September 1981),{ 5.9.2.4. II. In LBP 83 27, supra 17 NRC.949, the Licensing Board completed its consideration of this proceeding and authorized the Director of. Nuclear ' Reactor Regulation to issue an operating license to applicant for Water. ford 3. In so doing, the Board concluded that applicant's er.nergency plan-ning brochure is adequate to provide necessary information to the publir concerning possible actions in the event of aa emergency at Waterford

3. The brochure underwent substantial revisions from its original conception, due largely to the constructive criticism of Joint Intervenors. The Board below thoroughly reviewed the brochure itself and the large record developed on it. Although we may not fully agrec

= with each and every discrete finding of the Board, we find its decision to be well reasoned and supported by the evidence. See note 1; stipra. The entire issue of emergency planning for Waterford has now ticen exhaus-tively addressed (see LBP 82100, supra.16'NRC at 1560 68,1574 89, as mod,Aed.16 NRC 1901 (1982), a/J'd. ALAB 732, supra 17 NRC at i 1093 1110), and we see no error warranting corrective action; We there-fore affirm LBP 83-27. L Joint Intervenors' motion to reopen contention 22 is denied. Joint in-l tervenors' motion to reopen contention 8/9 is dismissedfor lack of i t 18 We note that in october 1957 a major fire occurred 6n the windscale reactor core itself. As a result, a sipiificant amount or radioactive fission products (mostly lodine) was rebessed directly into the countrysade. See Atomic Energy office. " Accident at Windscale No. I Pile on 10th Octoher,19$7." pre-sented so Par. lament by the Pnme Minister by Command or Her Masesty (November 1957); Final Envi. ronmental sutement (FEs). NUREG 0779 (september 1941). { 3.9 2.3. 4 t' t + . i e 1331 4 m .y a-o w me.ese e.* + e nw g - e aw.. e. -w -4 - m + y 4waw e.. e e.- s. h h i

Jurisdiction. The Licensing Board's second partial initial decision (LBP 83 27) is g(firmed. it is so ORDERED. FOR Tile APPEAL BOARD C. Jean Sheemaker Secretary to the Appeal Board S 5 1332 P .,,..w .,,n

A j Cite as 18 NRC 1333 (1983) ALAB 754 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Adminletrative Jud9es: Alan S. Rosenthal, Chairman Gary J. Edles Dr. Reginald L. Gotchy in the Matter of Docket No. STN 50 483 OL UNION ELECTRIC COMPANY (Callaway Plant Unit 1) December 9,1983 ' The Appeai Board affirms on sua sponte review the Licensing Board's second partial initial decision in this operating license proceeding which accepted the State of Missouri's determination that the distribution of potassium iodide and instructions for its use is not necessary for ade-quate emergency planning. i EMERGENCY PLANNING: GENERAL REQUIREMENTS The NRC's emergency planning regulations require that a range of protective actions be developed for the public in the area surrounding a nuclear power plant. See 10 C.F.R. 6 50.47(b)(10). EMERGENCY PLANS: CONTENT (USE OF RAD 10 PROTECTIVE DRUGS) There is no express mandate under emergency planning regulations thaa protective action include the use of radioprotective drugs. /d. and NUREG 0654, FEMA REP 1, Rev.1.

i

? 1333 ' ~ + m.. ...c.. .m-~~*..- .+ e. A -..

I EMERGENCY PLANS: FEMA VIEWS Generally, the Commission bases its decision regarding the adequacy cf emergency plans on a review of the findings and determinations made i by the Federal Emergency Management Agency (FEMA).10 C.F.R. 5 50.47(a)(2). DECISION .s On October 31. 1983, the Licer. sing Board issued its second - and final - partial initial decision in this operating license proceeding. LBP 83 71,18 NRC 1105.3 No exceptions to that decision were filed. Accordingly, as is customary in such circumstances, we have reviewed it on our own initiative. That review has disclosed no error necessitating corrective action. At issue in this phase of the case were two related contentions ofinter-venor John Reed. First, according to Mr. Reed, the radioprotective drug potassium iodide (KI) should be issued to members of the general I public living near the Callaway plant as part of the local emergency re-sponse plan. Second, emergency information provided by state or' local gosernments to the general public should include instructions regarding the use of Kl for thyroid protection if prolonged sheltering becomes necess.try in the event of an accident. The NRC's emergency planning regulations require that a range of protectise actions be developed for the public in the area surrounding a nuclear power plant.3 Neither those regulations nor NUREG 0654 (which is a document designed to provide guidance and criteria for the [ development of radiological emergency plans) expressly mandates that such protective actions include the use of radioprotective drugs.3 Gener-ally speaking, the Commission bases its decision regarding the adequacy 3 The Licenwrig Board had eather issued a parnal iminal decimon resolv 'is. en tavor of the spoticant a number of issues relating to quality assurance shach had twen htisated by the Joint Intervenors, Coah. tion ror the Enuronment. st Louis Resion. Messourians for safe Energy, and the Crasdad Alhance LBP-12109.16 NRC 1826 819821 we aftermed the Board's deciuon in ALAB.140. Il NRC 343 (198M. pentme for arromakreres dreard AL AB.750,18 NRC 1203 Il9tD, as meNird ALAB.7$0A, 15 NRC 1220 (1983). 2 Src 10 C.F R. 6 $0 47(bH101 3 NUREG.0654. FEM A.RrP.I. Res I, la the current vers on of a document entitled " Criteria ror Precarapon and Etaluation or Radictosical Emergency Response Plans and Preparedness 6n support or Nudear Poser Plants." prepared juntly in 19so to the NRC staff and the Federal Emergency Wnase. ment Agency. It is incorporated by reference imo Regulatory Gu+de 1.101,

• Emergency Planmns and.

Preparednese ror Nuclear Power Reactors.* Rev. No. 2 (Oct.1991). i 1334 e 4 hs.

of emergency plans on a review of findings and determinations made by l the Federal Emergency Management Agency (FEMA), which is re. i sponsible for reviewing olTsite emergency plans.* In turn, FEMA leaves to state governments the decision regarding the distribution of Kl. A FEMA interim policy guidance statement on the use of potassium i iodide, dated December 1,1982, indicates: i Each state has a responsibdity for formulating guidance to define if and when potas. I sium iodide is used as a thyroid blocking agent for emergency workers. Institutional. ised persons, and the general pubhc. Where States elect not to includd K1 in their preperedness posture either for emergency workers or institutionalized persons. the plans should state under whose authority the decision was made and the ratiMale for the decision,8 Similarly,.the Federal Radiological Preparedness Coordinating Committee, which is co.nprised of representatives of numerous Federal agencies, including FEMA, the_NRC, and the Environmental Protection l Agency, states: 11 is recognized that the decision to use K1 for thyroid blocking to protect the health l and safety resides with the State and local health authorities. Therefore, with the es. l ception of the NRC licensee's personnellocated on site during the accident, the de. casion for use or Kl during an actual emergency by all other individuals for whom the use of K! is recommended are the responsibehty of those authorities in j addition, because the factors bearms on the desirabihty of stockpding and distribut. ) ing KI for thyroidal blocking of the general population withm the Emergency Plan. ning Zone for the Plume Enrosure Pathway depend heavily on local conditions, this matter is a decision for State and local authorities to make.' The Callaway facility is located in' Missouri. That. State will make KI available.to emergency workers and persons for whom evacuation would i-not be feasible, but it has decided not to distribute it to the general ,public. Based on its review of the evidentiary record and existing Com. mission policy and precedent, the Licensing Board concluded that that decision should be accepted, in this connection, the Board noted that the issue of KI distribution has been litigated in several other licensing . proceedings and that " state policies against... distribution (to the i general public) have not been found contrary to requirements for provid. I ing adequate protective measures for emergency planning purposes."? i 8 le C.F R. i 50 47(e)(2). 8 ee seesimony or Mettee Carteet. Comniuneiy Pleaner. Tecluienesiset Hesseds arench. Netutet and S Testinenesseel Hasares Divinen. FEMA Reesen vil, fol. Tr. 2344 et 2 L 414 at 4 5. l 7LBF.03 71, are. II NRC at 1800. l i. i-. i 1338 ( = ^

i 4 + .i The Board also found that, as called for in the Missouri response plans. instructions to the public on in house sheltering are adequate despite 3 the lack ofinformation on KI.* We see no reason to disturb the Board's determinations. Accordingly, LBP.83 71 is g/ firmed. It is so ORDERED. l FOR THE APPEAL BOARD 1 i l C. Jean Shoemaker j

• Secretary to the j

Appeal Board I r i i 1 t d l l ) 2 1 i i 1 i j i 1 l 1 l I ). l' s 1 i i i, 8 M M 1182,1816 l 13M I 1 ?

Cite as 18 NRC 1337 (1983) ALA5 755 UNITED STATES OT' AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: Gary J. Edles, Chairman Dr. W. Reed Johnson Howard A.Wilber in the Matter of Docket No. 50 537.CP UNITED STATES DEPARTMENT OP ENEROY PROJECT MANAGEMENT CORPOR ATION TENNESSEE VALLEY AUTNOMITY (Clinch River Breeder Heactor Plant) December 15,1983 After the discontinuance of funding for this fallity by Congress, the Appeal Board in this construction permit proa:cding, upon motion of .the intervenors, terminates as moot all appellata proceedings and vacates the Licensing Board partial initial decision paving the way for issuance of a limited work authorization (LWA). Revocation of the LWA is left to the Licensing Board to determine what conditions,'if any, are needed to ameliorate the environmentalimpacts of site preparation activities. CONSTRNCTION PERMIT PROCEEDINGS: TER. lINATION Appeal boards traditionally terminate their proceeding 4 on the ground of mootness and vacate the decisions under review when a project is cancelled. Boston Ed/wn Co. (Pilgrim Nuclear Power Station Unit 2). ALAB 656,14 NRC 965 (1981); Rochester Gas and Electric Cur). (Sterling Power Project, Nuclear Unit No.1), ALAB 590,11 NRC 867 ,i F i 1 1337 4..._.. .s

(1980), Cf Puget Sound Power and Light Co. (Skagit Nuclear Power Projecti Units 1 and 2),* CLi 86-34,12 f RC 407 (1980). <= ORDERe> We have *)efore us an appeal by the Naiural Ri. sources Defense Coun-cil and the Sierra Club (Intervenors) from the Licensing Board's Febru-i 1 ary 28,1983, partial initial decision paving the way for issuance of a ilmited work authorization (LWA) for the Clicch River Breeder Reactor Plant.' Briefs have been filed and oral argument was held on September ~ ,4 28, 1983.2 On November 23, 1983, the Intervenors filedm motion to terminate the appellate proceedings, vacate the partial ins:U.i decision, and author-l ize revocati6n of the limi.ed work authorization' They observe that Con-gress hat declined to appropriate additional funds for Clinch River so that the project ha been effectively terminated. They contend that all } appellate ph.ceedings'are therefore moot. Neither the applicants nor the NRC staff objects to the grant of the Intervenors' motion to terminate the proceedings and 65te the inhial decisiorC(he applicants, however, G believe that, in view of thiVRR Direcier's authority under the Com- ' mission's regulations, "there is simplf no med for the Appeal Board to authorize the Director to revoke the LW A."3 On the other hand,^the 7 NRC staff argue: that, in order to ensure scpropriate site redress, any i ~ h , directive to revoke the outstandingfLf,Mhould be issued by t e f Licensing B'urd as part of its dismiutoi the construction permit application./ ~ ? We grant the motion insofar as it requests (ctmiitation of appellate proceedings and vacation of the Licensint lloard's, partial initial de6slon. We traditionally terminate appellate } proceedings on the + ) 4 3rr i BP 33 8,17 NrtC I$8 4 Aln ALAB.721.17 NRC $39 (1983L me denied a requem for a stay or tPA l.icerimns Soard's decisson. The Commission made the Licensing Board i deciuon emmediately er scii-e 6n an unput+shed order or Mav $.1983, and the omce or Nuclear Reactor Regulation issued she t.4 A on May 19.1943. As a 'trasteet matter, most or the sMe s* reparation activities authoris.4 by the Lw A have already been comp sted under an enempts.m svanted by the Commismon in August 1982. See CLI 82 23. le NRC 4)L The esemreien was challensed in court and the Commation's decision osa teversed and,' esenanded AAl*C v. AM 695 F 2d 623 (D C. Cir.19821. sne preparation actmties went forward. . homevet.hauw the cours declined to stay the Commnsion's esemption decivon The Commission i rumtmed t.**e stant or the esemption in an opinion issued on fanuary 6.1983, See CLl 8J.l.17 NAC1. Applicants' Response to M.,t.on or latersenors to Terminate ihn Appeat Proceedings. vacate Partial 3 Inneet Decrw. and Authorise Revos stion of Limned %vra Authot.r.s' ion (December $.19831 et J. 4 s ' -*-o i g /, 9-4 -p .m-

l i grounds of racotness when a project is cancelled. Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), ALAB-656,14 NRC 965 (1981h Rochester Gas and Electric Corp. (Sterling Power Project, Nuclear Unit No.1), ALAB-596,1I NRC 867 (1980). Cf Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 and 2), CLI 80-34, 12 NRC 407 (1980). Termination of appellate proceedings for mootness s1 is accompanied by vacation of the decision under review. Sterling, supra. In light of the termination of the Clinch River project, grant of the Inter-venors' request to terminate the appellate proceeding and vacate the ini-tial decision is warranted. We agree with the staff, however, that the issue of revocation of the LWA is better left to the Licensing Board, which still retainsjurisdiction over the application for a construction permit. We anticipate that the Board will determine if any conditions to ameliorate the environmental impacts of the site preparation activities are needed.* LBP-83-8,17' NRC 158 '(1983), is vacated on the ground of mootness; appellate proceedings are terminated. In all other respects, the Intervenors' motion is denied. It is so ORDERED. 'FOR THE APPEAL BOARD c C. Jean Shoemaker Secretary to the Appeal Board - 'i. t + 4 4 See rewrolly Tohtd Edsos (c. '(Davis.Sesse Nuclear Power station. Uruts 2 and 3) ALAB-622, [2 NRC 667 0900) and ALAB-652.14 NRC 627 (1981). we have ordered the revocation oroutstanding authoriza ions where, unlike the instant case, the Licensing Board no longer had jurisdiction over any portion of the proceeding. Sec. c r., Long tsarmf Literug Co. Harnesport Nuclear Power station. Units I 2 and 2), ALAO-628. IJ NRC 24,25 (1941);Sirrhag, supre. 4 s. 1339~ , y h 5 _.w,,,..wo.,gw mee m-v ed. -- - er e4m 'e-* "** s = l

• r Y

f e

Cite as 18 NRC 1340 (1983) ALAB-756 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: l .i Thomas S. Moore, Chairman Dr. John H. Buck Dr. W. Reed Johnson in the Matter of Docket Nos. 50-275-OL 50 323-OL PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) December 19,1983 The Appeal Board sets out the reasons for its earlier order denying the motions of the intervenors and the Governor of California to reopen the record on the issue of construction quality assurance in this operating license. proceeding. RULES OF PRACTICE: REOPENING OF PROCEEDINGS Proponents o a motion to reopen the record in a licensing proceeding r carry a heavy i>acen. Kansas Gas and Electric Co. (Wolf Creek Generat-ing Station, Unit No.1), ALAB-462,7 NRC 320,338 (1978). RULES OF PRACTICE: REOPENING OF PROCEEDINGS A motion to reopen the record in an operating license proceeding, to succeed, must be timely presented, addressed to a significant safety or environmental issue and must establish that a different result would have been reached initially had the material submitted in support of the 1340

motion been considered. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units I and 2), ALAB-291, 2 NRC 404,409 (1975); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974). See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598,11 NRC 876,879 (1980). OPERATING LICENSE: HEALTH AND SAFETY STANDARD Perfection'in plant construction and the facility construction quality assurance program is not a precondition.for a license under either the Atomic Energy Act or the Commission's regulations. What is. required instead is reasonable assurance that the plant, as built, is able to and will be operated without endangering the public health and safety. 42 U.S.C. 2133(d), 2232(a); 10 C.F.R. 50.57(a)(3)(i); Power Reactor Development Co. v. International Union, 367 U.S. 396, 407 (1961); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161,6 AEC 1003,1004 (1973), affd sub nom. Citi:ensfor Safe Power v.' NRC, 524 F.2d 1291 (D.C. Cir.1975). RULES OF PRACTICE: REOPENING OF PROCEEDINGS ~ To determine what constitutes a "significant safety issue"-for reopen-ing motions predicated on alleged deficiencies in an applicant's construc-tion quality assurance program, the new evidence must establish either ~ that uncorrected construction errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufri-cient to raise legitimate doubt as to.the plant's capability of being operat-ed safely. See Union Electric Co.-(Callaway Plant, Unit 1), ALAB-740, 18 NRC 343,346 (1983). APPEARANCES -Joel R. Reynolds,, John R. Phillips and Eric Havian, Los Angeles, California, and David S. Fielschaker, Oklahoma City, Oklahoma, for the San'Luis Obispo Mothers for Peace, et al., joint intervenors. John E. Van DeKamp, Attorney General of the State of California, Andrea Sheridan Ordin, Michael J. Strumwasser, Susan L. F 1 s 1341 I -am--wn=-.s s .s,e w w --m .w., ,,lsw-.. .n ,- ~-- e* = * ' ' ~ ~

Durbin and Peter H. Kaufman, Los Angeles, California, for George Deukmejian, Governor of the State of California. Rtbert Ohlbach, Philip A. Crane, Jr., and Richard E. Locke, San Francisco, California, and Arthur C. Gehr and Bruce Norton, Phoenix, Arizona, for Pacific Gas and Electric Company, applicant. L;wrence J. Chandler and Henry J. McGurren, for the Nuclear Regulatory Commis,sion staff. MEMORANDUM AND ORDER We are faced with the question whether the record in this operating ~ license proceeding should be reopened to consider new evidence on the alleged' inadequacy of the construction quality assurance program utilized by the Pacific Gas and Electric Company in the construction of the Diablo Canyon facility. In our unpublished orde: of October 24, 1983 we answered that question in the negative. The reasons for our decision are detailed belo'w. I Citing the discovery of significant new evidence of deficiencies in the Diablo Canyon construction quality assurance program, the joint interve-nors moved on hiay 10,1983 to reopen the record in this proceeding.' Shortly thereafter, on hiay 18, 1983, the Governor of the State of Cali-fornia filed a similar motion to reopen the record. These motions fol-lowed in the wake of earlier ones by the joint intervenors and the Gover-nor to reopen the record on all aspects of quality assurance (i.e.. design and construction) for the Diablo Canyon plant. Although the applicant and the NRC staff initially opposed the prior motions in their entirety, 3 The joint intersenors' motion also seeks vacation of the Licensing Board's summary rmdings on the . Edequacy of the Diab!o Canyon construction quality assurance Program contained in the Board's July 17.1981 partial mitial decision authorizmg fuel loadmg and low power testmg. and revocation of the low In ALAB-728 power license issued persuant to that authorization. See LBP 8121.14 NRC 107 (1981). 17 NRC 777 (198D. we drirmed the authorization for fuel leading and low power testms. That decision also contains a recitation of the recent history of this proceedmg. Because the jomt intervenors' supple. mIntal requests necessarily are dependent on the outcome of the reopenmg question, they also are denied. 1342 6 - m m -.

_m... _ i a they subsequently conceded that the motions met the adjudicatory stand-ards for reopening the record on the design phase of the quality assur-e ance program. We agreed and ordered the proceeding reopened on the issue of design quality assurance but declined to rule at that time on the construction quality assurance issue because of the procedural posture of the case.2 4 Following the filing of the new motions concerning the latter issue, the applicant and staff continued vigorously to oppose any reopening of the record on the issue of construction quality assurance. They both filed extensive responses to the hfay 1983 motions, accompanied by numerous affidavits and other supporting documents, setting forth the . reasons and the factual bases for their opposition. By our leave,3 both the joint intervenors and the Governor filed replies to those responses. Owing to the voluminous filings and the number of unanswered ques-tions we had concerning the exact nature and significance,of the new evidence, we set the motions for hearing so that these questions could be more fully explored.4 Further, because of the importance of quality assurance in the Commission's scheme for regulating the construction of nuclear power plants 5 and our desire to be as informed as possible on the factual claims of the parties, we allowed njovants to supplement their previous filings with any new evidence not already submitted.6 Commencing on July 19, 1983, a four-day hearing on the motions was held near the plant's site at San Luis Obispo, California, where the par-ties were afforded an opportunity to cross-examine each other's affiants'. The joint intervenors.and the Governor advance a number of argu-ments in support of their motions to reopen. In general, they' follow four lines: (1) errors in the applicant's design quality assurance program suggest the existence of errors in the construction quality assurance program; (2) newly found deficiencies in the construction quality assur-ance programs of several of the' applicant's contractors indicate 'that fur ' ther qu'ality assurance program errors, as well as' construction errors, exist; (3) the applicant's alleged lack of commitment to'implem' ent'the' 2 Commission's quality assurance regulations confirms the existence of flaws in the applicant's construction quality assurance program; and (4) the extensive nature and rapid pace of recent_ modification work follow-j i t 2 See Memorandum and order or April 21.1983 (unpublished). 3 Ser Oroer or June 7,1983 (unpublished). Under 10 C.F.R. 2.730(c), a moving party has no right to reply to a response to a motion. 4 See Order orJune 28,1983 (unpubhshed). SSer. e.g., Vermont Yanker Nucitar Power Corp. (Vermont Yankee Nuclear Power station), ALAB-124. 6 AEC 358. 361-62 (1973). 6 See Order or June 28.1983, supra. s s e a A e 1343 f. t N e l l - * - - ~ ' ' * - ^ l l l l i i - 1

1 \\ 4 - ing the discovery of design errors at the plant suggest the need to moni-ter the present construction quality assurance program. We consider these arguments below. II The proponents of a motion to reopen the record in a licensing pro-ceeding carry "a heavy burden." Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-462, 7 NRC 320, 338 o 't (1978). To prevail,, (tlhe motion must be both timely presented and addressed to a significant safety or environmental issue. Vermont YanAce Nuclear Poner Corp. (Vermont Yankee Nucle-ar Power Station), ALAB-138, 6 AEC 520, 523 (1973);. Georgio Power Co. (Alvin W. Vogtle Nuclear Plant, Units I and 2), ALAB.291, 2 NRC 404,409 (1975). Beyond that, it must be established that "a different result would have been reached initially had [the. material submitted in support of the motion} been considered." Northern Indiana Public Sernet Co. (Bailly Generating Station, Nuclear-1), ALAB 227,8 AEC 416,418 (1974). Id. See also PacVic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB 598,11 NRC 876,879.(1980). All parties agree that this tripartite test controls our decision. Although the timeliness of the May 1983 motions is not in dispute, the applicant contests, the assertions of the joint intervenors and the - Governor that the new evidence establishes.a significant safety issue and,'that had the evidence previously been known, a different result would have been reached. For its part, the staff rests its opposition on - the "significant safety issue" criterion. We turn, therefore, to the second prong of the WoyCreek standard. Because we, conclude that the new evidence presented by the joint intervenors and the Governor lacks ~ the. requisite safety significance on the issue'of construction quality assurance, we reach no other question. To determine what constitutes a "significant safety issue" for motions predicated on alleged deficiencies in the applicant's construction quality i assurance program, we need to bear in mind the enormous size and com-plexity of this nuclear power plant. The Diablo Canyon facility has been under construction since 1968' and has entailed costs running into the billions of dollars. Its construction has required millions of hours of reork by thousands of workers 'with vast ranges of differing skills. By The construction perrnits were issued for Units I and 2 on Apnl 23. I%8 and December 9.1970, ? rispectively. l 1344 l l l 9

t 6 l virtue of the sheer size and compiexity of the plant, it is inevitable that errors will occur in the course of construction. Although a program of I construction quality assurance is specifically designed to catch construc-tion errors, it is unreasonable to expect the program to uncover all errors. In short, perfection in plant construction and the facility construc-tion quality assurance program is not a precondition for a license under l either the Atomic Energy Act or the Commission's regulations. What is required instead is reasonable assurance that the plant, as built, can and I will be operated without endangering the public health and safety. 42 U.S.C. 2133(d), 2232(a); 10 C.F.R. 50.57(a)(3)(i); Power Reactor Devel-opment Co. v. International Union, 367 U.S. 396, 407 (1961); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003,1004 (1973), a/Td sub nom. Citizens for Safe Power v. NRC. 524 F.2d 1291 (D.C. Cir.1975). It is in this context that the movants' evidence of alleged quality assur-ance deficiencies must be addressed. In order for new evidence to raise a "significant safety issue" for purposes of reopening the record, it must - establish either that uncorrected construction errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufficient to raise legitimate doubt as to the plant's capability of being operated safely. See Union Electric Co. (Callaway Plant, Unit 1), .ALAB-740,18 NRC 343,346 (1983).8 " III A'. The joint intervenors and the Governor argue that the existence of deficiencies in the design quality. assurance program not only justifies reopening on that issue (as has already been ordered). but requires reopening on construction quality assurance matters as well. They assert that the correspondence of several of the same factors that led to inade- , uacies in.the, design aspects of the quality assurance program compels q an inference that the applicant's construction quality assurance program for the plant was also deficient. Specifically, they point to the same top 8As noted earlier. the Governor concedes the applicability of ti e WoFCrec$ entena for reopening the I hearing record. But the Governor, relying on a statement contained in Fermeer reekee NurArar power Corp. Germont Yankee Nuclear Power station). ALAB.138. 6 AEC 520. $23 24 (1973). claims that his reopening monon must be granted if he has umely presented newly discovered evidence addressed to a signancant safety issue and the moving papers are strong enough in light or oppossng filings, to avoid summary disposition. The analogy in Vermont reaAce to summary disposition (te.. that a motion for reopening must be supported by evidence that is at least equivalent to that necessary to avoed a knction for summary daspostion) should not be interpreted to mean that such evidence is all that is ever f necessary to meet the test ror reopening. To so conclude would, for all practicel purposes, relieve mov. ants of the hoewy burden imposed by Wo(Creek, supre. and decissons cited therein. ,,t' l +$ 7 1345 l t e 's l l

management that ran both aspects of the program and the same quality assurance manual that governed both activities. The movant's evidence on this point fally far short of establishing thsir asserted inference. Although at Diablo Canyon both design and c;nstruction quality assurance are parts of a single program, the histori-c:1 dtvelopment, organizational structure and responsibilities of each camponent are different. Similarly, the personnel skills, verification m thods and corrective actions applicable to each phase of the programs era different.' Therefore, it simply does not follow that merely because the same top management is ultimately responsible for the entire quality I tssurznce program and the details of the program are found in'a single minual, the existence of defects in the design aspect of the program are symptomatic of like errors in the construction phase of the prograrp. Th2 many different elements and functioning of each component of the pregram are such that it would be gross speculation to arrive at the mov-ants' conclusion based on these two factors alone.io More important, however, is the fact that the joint intervenors and the Governor - de-spite the additional opportunity presented by the hearing on their mo- .tions -- were unable to support their premise and establish construction quality assurance shortcomings sufficient to show a systematic break-down in the quality assurance program or defects in~ the plant that may ', adversely affect its capability for safe operation. B. The movants also rest their motions to reopen the record on cer-tain specific areas of deficiency in the quality assurance programs of the applicant's contractors. In this connection, they focus primarily on three contractors: the H.P. Foley Company, the G.F. Atkinson. Company, - and the Wismer.and Becker Company.

1. The Foley Company was responsible for all of the electrical work at the plant and, from about 1977, for much of the completion of the plant's construction (l.c., the " clean up" contracto'r). The joint interve-nors and the Governor claim that the inadequacy of Foley's (and, in

'See Afndanit of Richard s. Bain (July I.1982) and Amdavit of Warren A-Raymond. Charles w. Dick and Michael J. Jacobson (July 2.1982), accompanying Response of Pacinc Gas and Electric Company to Jemt intervenors' Motion to Reopen the Record tJuly 2.1982). These affidavits are incor. porated by reference m Response of Pacinc Gas and Electr c Company to Motions to Reopen the Rtcord on Construction Quality Assurance (May 31.1983), 10 Both the joerit miervenors and the Gosernor rely on the espert opimon of Richard B. Hubbard to sup-port their position that the denciennes m the applicant's desesn quality assurance program portend simi. lar diraciencies in the construction quahty assuaance program, in hke fasheon. they depend upon Mr. Ilubbard's opinion for support of most of thett other arguments. Vedr dre and Cross-enemmation of Mr. Hubberd. hometer, established that he lacked esperience and famiharity with construction work in genetzt and with the Diablo Canyon construction quahty assurance program. Tr. 39-42, 92 95. 105 10 16162. la the circumstances. Mr. Hubbard's opsmon is entitled to httle weight and at does nothing to enhancs the movants' arguments. 1346 A

• am 1

a e

turn, the applicant's) construction quality assurance program is made manifest by several incidents and construction practices. Relying heavily on a sworn statement provided to the Governor's attorneys by a former quality assurance manager of the company, Virgil H: Tennyson, they assert that Foley's quality assurance organization, in contravention of the Commission's regulations,10 C.F.R. Part 50, Appendix B, I, lacks sufficient independence from the company officials responsible for production. On this score, they allude to statements made by hir. Tenny-son to the effect that he was constantly under pressure to shortcut quali-ty assurance requirements in order that construction work could go forward. They stress, for example, an incident recounted by Str. Tenny-son in which red tags, used by the Foley construction quality assurance department to identify nonconforming work, were allegedly ordered re-moved by the company's project manager in violation of quality assur-ance procedures. But when hir. Tennyson was cross examined at the hearing on the motions, a far different picture emerged from that painted by the joint intervenors and the Governor. Although an incident involving the premature removal of red tags from nonconforming work did occur in violation of the company's quality assurance procedures, it appears that the physical corrections to the nonconforr. ling work already had been performed before the tags were removed.".The same conclusion was reached by the staff after its investigation of the incident.o $1oreover, the incident appears to be an isolated one. Thus, it neither establishes a systematic breakdown in Foley's construction quality assurance program nor demonstrates an uncorrected defect in the plant that adversely af. fects safe operation. Nor do we believe that the red tag incident, or other statements concerning the removal of red tags attributed to Foley's construction manager by htr. Tennyson, demonstrate a lack of independence on the part of the quality assurance organization from the production department. In the context in which these statements were allegedly made, we believe the various remarks were little more than shorthand expressions to completc the inspection process in a timely manner, but not at the expense of proper quality assurance procedures or the independence of that organization." il Tr. 652. Il,e inspection Report Nos. $0 275/8313 and 50 323/8310 (May 19.1983) al 4. attached to Enhabit 5 8 of Amdant of John D. Carlson Otay 20.1983). accompanytne NRC starl"s Response to Motions to Reopen the Record on Construction Quahiy Assurance (June 6.1983). 13.Tr 336.34143,350-32 W'e note that in the opinion of the NRC senior resident inspector at Diablo Canyon John Carlson, the quahty assurance cesanuation enjoyed sufDcient andependence within the company's corporate ICamnnuedt I 1347 l

Other aspects of Mr. Tennyson's sworn statement similarly fail to sub-stantiate the joint intervenors' and the Governor's allegations of serious defictncies in Foley's construction quality assurance program. The mov-ar.ts point to the recent large increase in construction work at Diablo Cany:n. According to Mr. Tennyson, this " push," which started in late December 1982, reguited in the hiring of many new welders and quality assurance inspectors within a time frame of approximately three m:nths. In addition, the quantity of work required that the inspectors, cmong others, work long hours - from sixty to seventy hours or more .per week., All this, according to the joint intervenors and the Governor, led to improper welds that escaped quality assurance detection and now must be made the subject of a broad reinspection program. During this period of a rapidly expanding work force, a number of minor welding deficiencies escaped Foley's quality control inspections. But such incidents are not unusual in construction and can be expected, even with qualified and experienced people, until the newly hired work-l ers and inspectors become used to the new conditions. requirements + and other aspects of the work environment.i$ The important point is that the problems were recognized and caught by the applicant almost from their inception and it quickly took steps to correct them. T he appli-cant closely monitored the situation and conducted a total of ten audits l of Fcley's work during this period so as to bring all the work up to ac. ceptable standards. Thus, rather than establishing a pervasive failure of the applicant's quality ' assurance program, this incident demonstrates th:t the applicant's construction quality assurance program was perform-ing in an acceptable manner. 2. Like the li.P. Foley Company, the G.F. Atkinson Company and the Wismer and Becker Company were major contractors for the Diablo Canyon plant. The former was responsible for the erection of the con-tainment structure while the latter installed the primary coolant system structure. He stated that although Foley's orsamaanonal structure was such that both production and J quahty managernent reported to the temor project manager at the site the quahty assurance manager had direct access to the company's regional vice president in the company's corporate omces in l Cthrorma. Te. 900 01. 38 See Inspection Report Nos $0 275/8) 13 and 50.J23/8310 at II. swra, fr. 236-38.898 IlTr. 805 07. 18 Tr. 56L72 87The movants also cite Mr. Tennyson's sworn statement concermns an incident or harassment or a quality assurance enspector by an ironworker as eviderice of Foley's deficient quahty assurance program. According to Mr. Ter.nyson. such harassment was reported to the Foley project manager but, as far as Mr Tennyson was aware. noihing was done to curtail it. The record. however, shows that the errant ironworker was immediately dismissed as a result of the harassment. See Amdavit or Richard s. Bain. James R. Manmns and Richard D. r. trier (May Ji,1933) at 14. accompanying Response of Pacific oss and Electric Company to Motions to Reopen the Record on Construcuen Quahty Assurance (May 31. s 1983) thereinarter *BME Afridavit (May )l.1983)"). 6 1348 p f

L piping. Asserted deficiencies, found by a review of the construction per-formed by these contractors also form part of the basis for the joint inter-venors' and the Governor's assertions that the record should be re-opened on the issue of the applicant's quality assurance program. In the fall of 1981, the applicant discovered errors in the assignment i of seismic design spectra for equipment and piping in portions of the containment annulus of Unit 1. These errors, in conjunction with the j discovery of additional problems with the applicant's design quality assurance program, prompted the Commission to order the applicant to undertake an independent design verification program to assure the ade-quacy of the Diablo Canyon design.t* While the program was in progress, and as an adjunct to it, the applicant commissioned the same organizations performing the design review to examine the containment structure construction and the primary coolant system piping. The appli-cant undertook this, at the urging of the NRC regional staff, to confirni the adequacy of the construction of Diablo Canyon and to verify that the staff inspection efforts had not allowed significant undetected deficiencies.8' Although a number of contractors were involved in con-structing the applicant's facility, the independent reviewers selected the construction performed by the Atkinson Company and the Wismer and Becker Company (and their subcontractors) because that construction was both substantial and involved structures or components vitally im-portant for safe operation of the plant.M This review resulted in a favora-ble finding on both the adequacy of the applicable quality assurance pro-grams and the construction.2' The joint intervenors and the Governor, however, dispute the validity of these conclusions. They assert'that the deficiencies uncovered by the review stand as evidence that the applicant's construction quality assur-ance program and those ofits contractors were not functioning properly.- Further, they claim that no. conclusions can! e drawn from the review b about the adequacy of construction by other contractors working on the plant because of the limited nature of the review (i.e., only two of twelve contractors were examined). . Although the review did result in the finding of a number of errors, these deficiencies were essentially matters of minor significance and .l 4 is See CLI.8130,14 NRC 950 (1981). I' Jet Afridsvit of Phdip 3. Mornli Uune 2,1983) at 3 accompanyint NRC staff's Response to Joint Intgrvenors' and Governor Deukmejian's Motions to Reopen the Record Uune 6,1983). N14 21/d $re else Attachment 3, Interim Technical Report No. 36 (Revision 1) and Attachment 4. Intene Technical Report No. 38 (Revision 2), accompanyms Response or Pacific Gen and Electric Company to

g Motais to Reopen the Record (May 31,1983) (heremaner "ITA 36" and "ITR 38').

{ j 1349 i ._..._.w.__.__... el 4 e

wera generally the result of close decisions by the reviewing personnel cn items that had called for the exercise of similarjudgments by the con-tract:rs' quality control personnel.22 None of the deficiencies required any physical modifications.2) Moreover, the review was conducted on werk performed as far back as eight years earlier using today's more stringent quality standards and not those applicable to the period of the, actual construction.24 Thus, in the circumstances, the number of errors discovered by the review is neither surprising nor particularly merningful. What is important is that none of the deficiencies represents eny defect adversely afTecting the safe; operation of the plant or a sys-t tematic breakdown of the applicable construction quality assurance programs. In addition, the movants' assertion that the independent construction r?.vi;w was too narrow to enable any statistically valid conclusions to be drawn about the quality of the work of the contractors not examined misses the point. On motions by the joint intervenors and the Governor to rtopen the record on'the issue of construction quality assurance, it is not incumbent upon the applicant to establish the adequacy of its con-struction quality assurance program or the adequacy of the construction 4 at Diablo Canyon.25 Therefore, given the results of the limited indepen-i dent review (f.e., both the construction and construction quality assur-ance programs'of two major contractors were adequate), we fail to see how the applicant's decision not to review the work of;all the other plant contractors casts suspicion on the adequacy of any of the unreviewed programs or construction work. It is, of course, possible. that a review of the work of the remaining contracters might lead to the discovery of serious construction or con-struction quality assurance flaws. But the theoretical possibility of such discoveries is insufficient. To demonstrate the need for additional con-struction quality review, the movants must either establish construction errors that endanger safe plant operation or show a pervasive failure of the quality assurance programs sufficient to raise legitimate doubt as to the adequacy of a plant's construction. The results of the independent construction review of the work performed by the Atkinson Company tnd the Wismer and Becker Company do neither.26 22 Tr. 428 40. 23 See trR 36 and ITR 38. 24 Tr. 429-31. 25See p.1344, sisve. 26 The rnovants also assert that numerous deviations in piping installations rrom what the movants latrf ts built" drawings, identified by the apphcant and the independent construction review, show the ta l-(Continuedi i i 1350 i F e s

.. -. -... - -.~.~ -.. - - i i i 4 l C. In a more general vein, the joint intervenors and the Governor contend that since 1970 the applicant's construction quality assurance program for Unit I has not complied with the Com. mission's quality assurance regulations,10 C.F.R. Part 50, Appendix B, because the appli-cant did not commit to conform its program to Appendix B after it became effective. Rather, the applicant only committed to apply Appen-dix B to the extent possible. Thus, they argue, the applicant effectively exempted its quality program from compliance with the regulations for post-1970 construction activities and the record must be reopened to ensure that Diablo Canyon was properly constructed.27 Although not ex-pressly stated, seemingly implicit in movants' argument is the notion that the regulations required immediate compliance upon the effective date of Appendix B and that the applicant's commitment was insufficient to ensure a properly constructed facility. We disagree. The Commissions predecessor, the Atomic Energy Commission, recognized in promulgating Appendix B in 1970 that the nature of the construction process for a plant already being built, such as Diablo Canyon, Unit 1, precluded the complete and immediate application of ure of the applicant's construction quality assu.ance program. But the conclusion the jemt intervenors and the Governor draw from these asserted discrepancies is unsupported by the recield and esidences a 1 misapprehension of the appficant's drawing procedures. The applicant has had in place and followed appropriate drawing procedures from the begmnmg of the Diablo Canyon project. See BME Amdasit (May 31,1983) at 2 5; Tr. 634 35. Further, the subject pipmg was correctly installed by the contractor in accordance with the design requirements on the area drawmss and erection isometric drawings. See BME Amdasis (May 31.1983) at 6-7. Tr. 618,619 20 634. Hence, there was no construction quality problem. rr. e19,626. The discrepancies cited by the + movants were those between the design analysis isometric drawmss and the actual installations. But those analysis drawings were not used in the field to erect piping. See BME Amdavit (May 31.1983) at 7; Tr. 618,619 20,634 The apparent source of the problem was the failure of the appheant's engineer. ing department timely to incorporate into the analysis drawmss all the previously approved field changes so that the drawmss at the time of the review conformed to the installed pipmg. See BMF. Amdavit (May 31.1983) at 7-8; Tr. f,26. We do not find this particular failure by the Pacdie Gas and Electric Company ensmeenne department to be significant from the standpoint of the applicant's construction qualaty assurance program. 27The joint intervenors pomt to the construction of certain raceway supports at Diablo Canyon usms "superstrut" matenal manufactured by the Midland.Ross Company as evidence of the applicant's failure to comply with Appendix B and to construct the facility properly. An NRC inspection of the Midland. Ross factlity determmed that the manufacturer's quality assurance program was insufficle" and not in conformance with Appendix B. See Board Notdication No. 834)2 Uanuary 7,1983) and enclosure. Thereafter, the agency conducted an inspection a. Diablo Canyorr on the use of the material. That in. ,t spection concluded tha't the apphcant's procurement and use of the material was generally consistent with Appendix 8 requirements applicable to oIT-the.sheir or commercial grade items. See Affidavit of Philip 3. Morntl Uune 2,1983) at 6 and Exhibit C (Inspection Report Nos. 50 275/82 41, 50-323/82 19 Uanuary 6,1983)), accompanyms NRC stafs Response to Joint Intervenors' and Governor Deukme. jian's Motions to Reopen the Record Gune 6,1983); Tr. 887 92. Further, we note that subsequent physical testing and evaluatsons of the superstrut matenal indicate that it meets the design requirements fo? Diablo Canyon. Tr. 884. See Board Notification No. 8314A ( April 6,1983) and enclosure. See also Pac 4c Gas and Electnc Company and Bechtel Power Corporation " Final Report on the Evaluation of spot. welded Materials Used in support Sycems for Electrical Conduit and Cable Trays at Diablo Canyon Power Plant" Uuly 1.1983). I

• i 1351 i

t_..__._. 8 y

the quality assurance criteria. In the Statement of Considerations accom- ~. panying the final version of Appendix B, it stated that the criteria would be "used for guidance in evaluating the adequacy of the quality assur-ance programs in use by holders of construction permits and operating licenses."28 Therefore, contrary to the movants' suggestion, the applicant was not required to conform the construction quality assurance program for Unit I to Appendix B upon the provision's effective date. Moreover, the applicant's commitment in the Final Safety Analysis Report (FSAR) 13 apply the Appendix B criteria to the extent possible for the construc-i ti:n of Unit I was completely reasonable.2' As stated by the applicant's 6 .) assistant manager for nuclear plant operations, Warren A. Raymond: We applierf iAppendix Bl as we possibly could. But you must remember that a

• grstt deal of the design and construction and procurement for Unit No. I had al-re:4y been completed prior to the time that Appendix B came into custence, and it's extremely diff'tcult to try to apply all of those provisions to something which was

i donc prior to the time that the regulation was enacted.30 I

'I'n the-circumstances, the applicant's failure to conform the Diablo Canyon quality program to Appendix B in 1970 carries with it no suggestion,'as the movants would have it, that the applicant's construc-tion quality assurance program was insufficient to ensure a properly con-structed facility.38 28 5 Fed. Reg. 10,498,10,499 (1970) (emphasis supplied). 3 hSee Diablo Canyon FsAR, } 17.0. 30 Tr. 464-i The movants turn the apphcant's commitment on its head by suggesting that it was a loophole that permitted the apphcant to ignore construction quality assurance for tlmt I Although Mr. Raymond fur. ther stated that it would take "an exhaustive review" to identify the construction work at Unit i per. formed under the quality assurance criteria of Appendia B and that such a review had not been. 3 undertaken, this fact does not translate into a conclusion that the arphcant neglected construction quah. I ty assurance at Umi 1. Tr. 466 Indeed, as early as May 6.1971 the staff noted in Inspection Report No. 50 275n1 1 at 9: a QA program,. has been developed and implemented as required. The specific provisions of the QA program are set forth in a docwment entitled. "PGAE Q A Manual, Diablo Canyon Umt No. 2.* The stafr confirmed that s'though the provisions of the document had been developed to meet the licenseg requirement emposed for L'mt No. 2 and the 18 criteria of Append s B to 10 C.F.R. Part 50. they are also spphcable to Unit No I with no distinction in t' e requirements between the two umts. See sho Afridavit of J M. Amaral (May 31,1983), accompanyms Response of Pacific Gas and Electne Company to Mouons to Reopen the Record on Construcuan Quahty Assurance (May 31, 1983) therrinafter "Amaral Afridavit, May 31,1983"), 36 in addauon, the pint intervenors and the Governor assert that the apphcant's Diablo Canyon quality assurance program failed to comply with 10 C F R. Part 50. Appendin A, General Design Cnterion 1, 1 thich states, amer sea, that systems, structures and components "important to safety" must meet quahty standards commensurate with their safety funcuan. The movants argue that the Appendit A tequire. mint is distinct from the Appendia B criteria apphcable to " safety.related"' systems, structures and c mponents and that the apphcant only comphed with the latter requirement. Putting to one side the ^ question or the correctness of the movants' interpretation of Appendices A and B - a matter about fContsnued) i 1352 I i 6 4 4

i i D. Finally, as another reason to reopen the record on the issue of construction quality assurance, the Governor refers to the extensive amount of modification work being performed at the plant resulting from the design verincation program. Speci0cally, the Governor argues that the applicant's deadlines for completing the modi 0 cations have placed such time pressures on the construction that errors are likely to result. According to the Governor, this factor, combined with the dell-ciencies already identided, establishes the need to reopen the record to examine the construction quality assurance program for the new work. l The Governor's argument is unpersuasise. The movants have failed to produce any reliable or persuasive evi-dence that the extent of recent construction activities has led to signid-cantly faulty construction or a serious breakdown in quality control. Rather, it appears that the modification work has been adequately planned and coordinated. In addition, this work has been subjected to an aggressive program of quality assurance inspections and audits by the staff and the applicant which has insured that the minor denciencies uncovered hase been corrected." Further, as explained by Allan John-son and Bobby Faulkenberry, Enforcement Of0cer and Deputy Regional Administrator, respectively, of the Commission's Region V office, shakedown errors can be expected at the beginning of any large construc-tion work." Sforcoser, Nfr. Faulkenberry, in his review of the inspection - history of Diablo Canyon from 1969 to the present time - a program amounting to some 20 to.25 man years of effort and covering the activ6-ties of all contractors on the site - did not Ond the applicant's non-compliance record out of the ordinary, indeed, he found the noncompil-ance rate "about average, or possibly even on the low side."" This being so, in the absence of evidence of serious construction quality assurance breakdowns in connection with the modi 0 cation work now going on at the plant, no justincation is presented for reopenhis of the record. i ehich we hate considerable doubt.= they have nos 6denti6ed a sangle system, strue;ture of vomponent "important to selety that the septwant's quality assutance program failed to eovef. Moreovef, the apple. j cent publ6thed the Diablo Canyon Fs A R designating those stant reatures outwct to its construction qual. Ity suursnte program ln 1974 tre Diebte Canyon is Alt, l 31 The stafr accepted inst des *saation the same year See safety Essluation Report for Dishio Canyon lostobet 16. lH46 at 121 Ali%ough twith dwuments hate been pubinly avadahle since 1974, the movanis weited until lell to assert this poeteon in their mot.on to reopen the resofd in the g6ftumstarkes, the motion on this point is grouly out of tsme agd cannot rofm the basis for reopening the record. See 66',(f freet, supre. at ))3. H see BMt Arndavit (May ll.190D at 9 il, Amaral Affldavel f May 31.199H st 2 3. see else inspee. tion Report Nos. $0 27!/8).29 and 3012J/8).2l (Osloher 7.198D " It 30108, 24 ft. 807e 820 22 1353 e I.,.. ..-.,, m.. --+-+4

We have also considered the other allegations of construction quality assurance deficiencies made by the movants. We And them without merit.88 IV As is evident from our discussion above, we find that the joint interve-nors and the Governor have failed to provide new evidence of a signifi-c:nt safety issue. Although there is some evidence of errors in both the i applicant's construction quality assurance program and the construction at Diablo Canyon, we are unable to Ond that the errors are pervasive so as to indicate a breakdown in the construction quality assurance program and raise legitimate doubt as to the plant's capability of being operated l l 38 some ses weeks afiet the hearing on the monons to reopen the record, the joint tmervenors fled a "surriement" to their earliet monon Dated upon an October 27,1977 independent audit report statual of the quahty assurance program of Pullman Poser Products fone of the archcanfo masor comractors for pering other than the reimary coolant systemi The audit. sonducted by Nucleaf servues Corpots. tion iMC) in the laie summer of 1977, covered a pernid from 1971 to 1977 and ident feed a large nemtiet of purrotted deDuensies in the Pullman prostarn The soint intervenors. Joined by the 00sernor, argue that the ferott proudes addinonal s$nirwant new sudence suppotung their teopening monone on the luus of construt1 eon quality assurarne The staff respunte indwales that a feuem t,f the MIC inspesuon repnf ts for the Period covefed by the MC suJit shoes the same hind of de6ciefwies in the Pullman program as innee noted in the audit reputt. Therefore, the staff beheves the audit findings reflect a6 ready corrected, isolated occuttences. The arrinant's teironie coniains a detailed history of the MC audit and fuit documentauon of subw. euent asuont taken by Pullman and Pacifie Gai and I.lectrie Company That documenianon shoes that l Pul' man feirnnded fully la esth of the audit findinet end. ehefe arrtoptiste. Propowd correcuse $n AlhJaist bl Rugeell P %ikhow t$er:eraber 21, les)L Atteshment 4, assompartying Pacif-l estmnt ie Get and riectrie Cort pany (nsett to joint OMettenott' Supplement The aceleant tenemed the MC auJit 6nd,ngi mith the Pullman rest +nies arid then sonJusted a separate audit of the Putiman qual. 6tt suutafke tregram,6fkluAng a teuem of the entialled hardeste The appiganfe audit found three pracrammano defoetkies and three de6uenues in the imp.emeritet on ad the reogram but sotkluded that the Pu!! men reagram generally mei the archsable stiteria lJ at Atta6hments I and 6 The dernien. sies Jenb6ed by the arriaant mere theft 6ttre(itJ /> st Anashment 7. The artigant also concluded that the MC sudit 6nJ+3s reenefited se inascu ate mesevre of the esetah Pu man quahty suurathe r n program because mant of the MC finJ=nst inarctoreistely comrated the Pullman Program to 1977 sundards esther than those arrlwable ehen the enth est actuativ retformed /d at ) Ihe Jeont intervenote filed the "surrtement" to their teocening mobon siihout an accompanytes mnunn for lease to file the dusument or an earlan4 ten of oben ther obtained the MC audit terort Thus, theit 6bng was in the teeth of out earlier adenoniuon to. punt talettenots teth respett to such Ghnp $n Memotandum and Order of Artil 21. legi Ivarubhthedt 4: 2 4 % e do not, homever, fesect the snint aniefsenoes' Ghns on that stov..d we have (aref utiv teneeed the MC audit terort and the te. sennut of Pullmart and the app 6nant Ibese lead ut ta corutude that the derniensies hientified by NT in le77 ans not estderne e sismosant at sistemaus failute of the quality anvrance rtogram see stem board Notifisanon 81488 (Dnember 13.19418 and erklosure Another potenbally serious matter to toised by the MC sud61 report According to the joint clervenors. the report had not been distowd pronously even though the audit in queshon was sonduct. Cd attd the report ottilen at ahnut the time the Lkensing Board was tongedertrag the adequa0 of the Diality ensurante program at nieblo {anyon Ihas, a host of quesucris tofNerning the mondittletute of the tert $tt assit enteef t llut it is ngsther pote4kte riot erprtirttaie fot ut to addrett thete queshofie on the materials at hand aethef, thse is a maHef for the slaft to tntethgate and, if artfortlete,lo take the fietettsty enfortement eftlan we espett th4 staff to infotm les thethet 64 is undettahlfig an 6fivesbga. tion of this mallet 1354

l ( safely. Nor can we find that any construction errors endanger safe plant operation. Accordingly, the motions of the joint intervenors and the r Governor to reopen the record on the issue of construction quality assur-ance and for other relief are denied. It is so ORDERED. FOR THE APPEAL BOARD ~ C. Jean Shoemaker Secretary to the Appeal Board 9 f 4 4 4 9 4 6 a D f 4 j 0 e O 4 0 I a l. + 4 i f a + g 1355 i I F + . m.

Cite as 18 NRC 1356 (1983) ALAB-757 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: l Alan S. Rosentha;, Chairman Gary J. Edles Howard A.Wilber I 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) December 20,1983 The Appeal Board in this operating license proceeding declines to reconsider its earlier denial of an intervenor's motion requesting recusal by a Licensing Board judge on the ground of bias. RULES OF PRACTICE: MOTION FOR RECUSAL (OR DISQUALIFICATION) , A claim for dimualification must be raised as soon as practicaole after a party has reasonau : cause to believe that grounds for disqualification exist. Marcus v. Direcwt Office of Workers' Compensation Programs, 548 F.2d 1044,1051 (D.C. Cir.19M. See also United States v. Patrick' 542 F.2d 381,390 (7th Cir.1976). RULES OF PRACTICE: MOTION FOR RECUSAL (OR DISQUALIFICATION) The posture of a proceeding tray be considered in evaluating the timeliness of the filing of a motion for d:squalification. Smith v. Danyo, 585 F.2d 83 (3d Cir.1978). 1356

1 1 APPEARANCES Diane Curran and William S. Jordan, III, Washington, D.C., for the New Enhiand Coalition on Nuclear Pollution. MEMORANDUM AND ORDER Interv.enor New England Coalition on Nuclear Pollution (Coalition) asks us to reconsider ALAB-751.8 In that decision, we affirmed the denial by Administrative Judge Helen F. Hoyt of a Coalition motion I seeking her recusal or. disqualification as Chairman of the Licensing Board in this operating license proceeding. That affirmance rested on two independent grounds: (1) The Coalition's averments did not estab-lish disqualifying bias; a'nd (2) th'e recusal motion was untimely filed. In urging reconsdration, the Coalition maintains we were wrong on both scores. 1. The Coalitioni recusal motion was preceded by similar motions filed by intervenors Seaccast Anti-Pollution League (SAPL) and the At-torney General of the Commonwealth of Massachusetts (Attorney General). We affirmed Judge Hoyt's denial of those motions in ALAB-7482 and ALAB-749,2 respectively. In ALAB-751, we stated that "[tlhe substance of every example of as- ~ setted bias set forth by the Coalition was likewise advanced in one or, . both of the [ earlier] recus'ai motions...."' According to the Coalition, this statement was inaccurate. We are told that the Coalition was the only movant "to address the appearance of bias created by the way in which Judge Hoyt made an exparte contact with the town of Rye,.New ' Hampshire,' and then mischaracterized her treatment of Rye repr:senta'. tive Guy Chichester in the Licensing Board order of September 8."5 Further, the Coalition maintains, neither of the prior recusal motions had focused upon the action Judge Hoyt had taken at an August 31, 1983 conference conducted by the Licensing Board in Dover, New Hampshire.' s i 18 NRC 1313 (1983). 218 NRC 1184 (1983). 318 NRC 1895 (1983). 418 NRC at 1314. 5 New England Coalition on Nuclear Poitution Motion ror Reconsideration (December 13.1983) at 3 (rootnote omitted).

• .14. at 2 3.

+ 1357 5 1 .... ~., ~,..-....~~_n. -n.. r. t a

As to-the first matter, the Attorney General's recusal motion con-tained the express claim that " Judge Hoyt exhibited personal bias and improper judicial behavior by contacting the Town of Rye ex parte ...."7 in addition, the Attorney General alluded to the September 8 order,8 and we were aware of it.' Quite true, the Coalition believes that the Attorney General did not deal in sufficient detail with either the ex parte contact with Rye or the September 8 order.l* Be that as it may, the Attorney General had brought our attention to both, and we considered th; full implications of each in passing upon the question whether perva-siv: bias on Judge Hoyt's.part had been established.. The Coalition is correct, however, that neither SAPL nor the Attorney General had referred to the August 31 conference. Our implicit repre-sentation to the contrary in ALAB-751 thus was in error. The question remains whether that error bears significantly upon the result reached in ALAB-751. We think not. The August 31 conference was attended by counsel for the Common-wealth of Massachusetts, the State of New Hampshire, the applicants ~ and the NRC staff, as well as by one of the participating town representatives. The Coalition was not likewise represented. This is be-cause it understood the conference to be "for information gathering pur-poses only."H The asserted source of that understanding was an August 29, 1983 telegram sent by the Board to all parties, which requested the presence of the Director of the Massachusetts Civil Defense Agency at the conference and stated: The purpose of the conference is to discuss the status'of the emergency plans for Massachusetts and the Massachusetts towns, in order to give the Board an idea as to the timing of the remainder of the proceedings. All participants m these proceed. ings are invited to attend. In addition, according to the Coalition, a law clerk to the Licensing Board had informed it that "the Board would be discussing the timing of the submission of the Massachusetts plans, alid would not be discussing matters substantively affecting... [the Coalitioni in the proceeding."t: The Civil Defense Director appeared at the conference and briefed the Board on the likely completion dates of the Massachusetts regional 7 Memorandum in support of Attorney General Francis X. Bellotu's Monon for Disqualification and Recusat of Judge Helen F. Hoyt (october 28.19831 at 36 (emphasis omitted): E gg gg 34. 'Scr At.AB-749.supri.18 NRC at 1199 n.8 10 Coalition's Reconsxferanon Mouon at n.2 Il Motion by New England Coalition on Nuclear Pollution for Disqualification of Judse Hoyt (Nosember 23.1983) at 19. '11bei 1358 I I m

L ~. \\ l 4 i f and local emergency response plans.n In light of that information, Judge Hoyt embarked upon a discussion with counsel regarding the possibility 4 of reducing the time periods for, inter alia. the submissiort of contentions .and the conduct of discovery on the Massachusetts plans.H But, despite Judge Hoyt's expression of tentative views, no determination was made at the conference; rather, Judge Hoyt indicated that the Board would welcome briefs from the parties on these matters.u The Coalition would have it that, by entertaining the views of appli-1 cants' counsel on the scheduling question, Judge Hoyt went beyond the . previously announced scope of the conference and, 'in doing so, " demonstrate [dl the degree of her bias" in favor of the applicants and against the intervenors.l* We find that claim insubstantial. To begin with, it is not entirely clear to us that the Coalition was justified in assuming that there would be no discussion whatsoever at the confer-ence respecting the timing of the filing of contentions and the conduct of discovery on the Massachusetts emergency response plans. Indeed, j-quite.the opposite inference might'have been drawn from the notation ) in the August 29 telegram that the status of the emergency plans was i being discussed "in order to give the Board an idea as to the timing of i the remainder of the proceedings." See p.1358, supra." But even if it could be said that, by its telegram, the Licensing Board had committed itself to the avoidance of any scheduling discussion at the conference, the fact that that commitment was not observed scarcely establishes bias I - let alone pervasive bias - with respec't to eith'er the intervenors as a A.! class or the Coalition in particular. Those intervenors represented at the f conference were heard orally; i.e., the Board did not provide that oppor-tunity to only the applicants.'And, to repeat, all parties to the proceeding ' were specifically invited to die briefs on the scheduling question prior to { any ultimate determination by the Board. Notwithstanding our mistakeri belief that the same. assertion of demonstrated bias had been advanced in one of the earlier recusal i . motions, we had independently considered the claim in the context of 13Tr.1845-61. i 14 Tr 1855 77. ISTr 1875. l' Coahtion's Disquehfication Motion, saprd. at 21. I Ult appears that the conversation between Coahtson's coumel and the Licenans Board's law clerk had j taken piece at the end or the previous week. See NECNP otgection to improper Board Conduct, Re. sponse to Applicants' Pastoon as to scheduling or Emergency Planning leaues, and Roguest for Hearing on Lignsens 5chedule (octoter 5.1983) et 1. The Coshtien thus should have resolved any inconmeten. cy between the law clerk's advise and the terms or the telegram in rever or the telegram. But those may 2 not have been en inconnesency whole the hne between "sutetence" and "proceduse" is not especially i bright, scheduhrig queessons rmeht well to taken as purely procedural in cherector and thus cuande the amint,or "meners subesanovely asselens" the Coahuen. 4 l t 1389 ( J 1 ~. _ _ ) 6 g / A . I de + e s..J.. .....L. ..m

the Coalition's motion and, for the foregoing reasons, had rejected it. The reconsideration motion gives us no cause to alter our prior conclu-si:n on the subject.

2. In determining that the Coalition's recusal motion was late, we took into account that it was filed almost three months after the events upon which the allegations of bias rested, that there was no explanation for the Coalition s failure to file earlier, and that the Board was actively inv;lved in processing the case during the three month period.88 The Coalition now argues that the timing of its filing was consistent with the precedent established in federal case law. In particular, it contends that

"[tlhe crucial factor is not the date of discovery of the bias... but the effect of the disclosure on the future conduct of the proceeding" and that the nearly three month lag in filing "has not jeopardized the con- ' duct of the Seabrook licensing proceeding." We disagree with the Coalition's contention that the date of discovery cf bias does not bear significantly on the issue of timeliness. As we ex-plained in some detail in ALAB 749, and reiterated in ALAB 751, both the federal courts and this agency insist that all requests for disqualifica-ti:n or recusal be filed promptly. The District of Columbia Circuit has summarized the law as follows: The general rule governing disquahncation, normally appheable to the federalJudici< ary and administrative agencies ahke, requires that such a claim be raised as soon as practicable after a party has reasonable cause to beliese that grounds for disquahnea. Lion exist. It will not do for a claimant to suppress his misgivings w hile waiting ans. iously to see whether the decision goes in his favor. A contrary rule would only countenance and encourage unacceptable inefficiency in the administrative process.20 We explicitly acknowledged that the most egregious example of untime-liness is where a complaining party awaits a tribunal's substantive deci-sion before seeking to disqualify the decisional officer. But we carefully explained that the requirement for timely filing was not limited to such situations. We observed: lAlny delay in Ghng a motion for disquahGeation or recusal necessarily casts a cloud over the proceedmss and increases the likeh'tood of delay in the ultimate completion of the case in the event recusal or disquahncation is warranted and a new decisional ALAB 751 ssere.18 NRC at 131516. 3,e she ALAB.749, sagre,18 NRC at 1199. 18 l' Coalition's Reconsiderauon Motson, sawis. at 6. 20y,,rus v Darcror. Office of Wor 6ers'Comprewme Prorcems. 548 F.2d 1044,105I (D.C. Cir.1976) (footnotss omittedt 3re eso l'med Suns v. Parrset. 542 F.2d 381. 390 (7th Cir.1976) ("The tan is well settled that one must raise the disqualification of the judge at the earliest moment after knowledge of the facts demonstrating the basis for such disquahfication."). 1360

a I l I omeer must be appointed. Thus, we insist that all requests for disqualification or I recusal be filed promptly.21 In the absence of mitigating circumstances not present here, rejection of a motion submitted three months after the events purportedly demonstrating bias and containing not a single word of explanation for the delay is fully consistent with established precedent. We do not disagree with the Coalition that the posture of a proceeding may also be considered in evaluating the timeliness of the filing of a motion for disqualification. Smith v. Danyo,22 cited by the Coalition, illus. trates this principle. However, we reject the Coalition's suggestion that our earlier determination failed to take proper account of the posture of the case. As a threshold matter, we note that in the Danyo. case the court ac-knowledged that the actual time elapsed before a motion is filed is a rele-vant consideration. The court nonetheless determined that other factors were overriding on the facts there present. A three-month delay in Danyo was not deemed disabling where the trial judge accused of bias had declared a mistrial, the motion for disqualification was filed well in advance of any new trial date, and no activity in connection with the case was apparently taking place in ti.e interim.2) The facts of the instant case are considerably different. During the three month period before the Coalition's motion was filed, the Licens-ing Board was actively engaged in the management of both the predeci-sional aspects of the recently concluded phase of the case and planning the upcoming hearings on offsite emergency planning issues. Perhaps more important, the Coalition was an active participant before the Board during that period. On September IS, the Board reaffirmed its prior oral rulings establishing due dates for the submission of proposed findings of fact and conclusions of law in connection with the hearings concluded in August. Under the schedule established, all submissions except for the applicants' reply findings were tendered before the Coalition's motion was filed. The Coalition filed its proposed findings on October 27. Thus, the Coalition waited essentially until all procedural steps short of deci. sion were completed before asking the Licensing Board Chairman to step down.- i 21 ALA3 749,,.pe, lg Nac ai 3393, 22 $35 F.2d 83 04 Cir.1978). 22.f. at $6. / 1361 0 A

I During this period, the Board also made rulings and considered vari-cus requests regarding the upcoming emergency planning hearings.2* 1 The Coalition argues that, apart from an October 5 filing" and the sub-mission of contentions in conformity with previously established deadlines, it did not " affirmatively approach the Board seeking a favora-ble ruling."" On at least three occasions during the three month period, l however, the Coalition made recommendations, suggestions, or formal requests to the Board regarding the emergency planning phase of the case." While the October 5 filing did seek the appointment of an inde-pendent. board or special master to rule on certain limited questions sur- + rounding the expected completion date for the Seabrook plant and the scheduling of pleadings and hearings on offsite emergency planning issues, at no time (before November 23) did the Coalition indicate that the Bard could not examine the substance of pending issues impartially. in the context of this case, the Coalition's silence on the question of Judge Hoyt's impartiality during' the three month period is signincant. On October 7, in connection with its motion for disqualineation, SAPL specifically asked the Board to defer all further rulings pending disposi-tion of the motion. The Coalition chose not to respond to the SAPL deferral motion, permitting the inference, at least, that, apart from its + October 5 request, it had no views regarding the Board's ability to dis-pose of pending business' impartially. On October 21, the Board denied SAPL's request. The Board's decision should have alerted the Coalition to the need for urgent action. Yet the Coalition waited still another month before Oling its motion for disqualification or recusal. And, as we noted in our earlier decision, it never indicated its concerns by way of re-sponding to the motions for disqualincation Gled by SAPL or the Attor. I ney General of Massachusetts. In our judgment, the Coalition's conduct over the three month period required some explanation of why it waited until November 23 before calling into question'the impartiality of the Licensing Board Chairman. In its request for reconsideration, the Coalition offers such explanation. It indicates that it wanted to " undertake a thorough review and analysis of the transcript and records of this proceeding and of the i = M$ar. ror example, the Board's order or November 10,1983 (unpubbshed), postponing the December ' 13 target date for commencement or heariegs. and announctng its intent to schedule a preheanns son. r rerence 6n January 19tt See mise the Board's order of November ll.1983 luripublished). denying the peutson or John F. Doherty ror leave to intervene. M $<c note 17, supre. D Coahuon's Reconsideration Monon, supra, at 7. 213,, leiters rrom Diane Curran to the Board (september 9.1993, and september 23.1983) and NECNP obsection to Improper Board Conduct. Response to Arphcants' Poe.uon as to scheduhns or Emergency Planning issues, and Request ror Hearms on Licensing schedule. sapes. note t7. 1362 i e e e, e 6 9 4 3

t applicable law" and that " lilt was also necessary to understand the detail and full implications of Judge Hoyt's improper actions with respect to the dismissal of Guy Chichester as representative of the Town of Rye and the ex parte contact with the town."" We llnd such highly general. ized averments unconvincing. j Finally, the Coalition objects to what it believes to be an unfavorable comparison with SAPL and the Attorney General. It argues that its re-quest should n_ot be judged by comparison with other parties, it was not. Our reference in our earlier decision to the submissions of the other par-ties was designed to illustrate two matters. First, there was ample time available for the filing of a thorough and thoughtful request for disqua. i lincation well in advance of November 23. Second, any motion for dis-quali0 cation not filed promptly should have included some explanation for the delay. That such explanation should reasonably have been ex-i pected is demonstrated by its inclusion by both SAPL and the Attorney - General. j i l The Coalition's motion for reconsideration of ALAB 731 is denied. l It is so ORDERED. i FOR THE APPEAL BOARD 1 i r C. Jean Shoemaker Secretary to the l . Appeal Board i l l 4 i. J le ca.gm Recons aermion Menon, m. at 910. i 1343 l e 1 4 t

w t .y., 'r's ; ff* Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL g i v 'a B. Paul Cotter,

• Chairman Robert M. Lazo, 'Vice Chairman thecutivel

.a Frederick J. Shon, 'Vice Chairman (Technicall L., t hh. Members 54 eO. Dr. George C. Anderson Andrew C. Goodhope Dr. M. Stanley Uvingston fy * " Chartee eachhoefer' Herbert Groseman' Dr. Emineth A. Luebke' t Peter 8. Bloch' Dr. Cadet H. Hand, Jr. Dr. Kennth A. McCollom I',' 4* Lawrence Brenner' Jerry Harbour' Morton 8. Margulies' Clenn O. Bright' Dr. Dav64 L. Herrick Cary L. M.tholbn p-s a, Dr. A. Dison Catlihan Ernest E. Hill Marshall C. Meller' James H. Carpentee' Dr. Robert L. Holton Dr. Peter A. Morrte' + Hugh K. Clark Dr. Frank F. Hooper Dr. Oscar H, Paris' Dr. Richard F. Cole

• Ho6en F. Hoyt' Dr. Hugh C. Peston 9 l Dr. Freder6ck R. Cowan oteabeth 8. Johnson Dr. Poul W. Purdorn Valentme 8. Deste Dr. Walter H. Jorden Dr. Osvid M. Schek l,' '

De, Donald P. de Syne James L. Keiiey* Iven W. Strath' Dr. M:chael A. Duggen Jerry R. Kilne' Dr. Mortin J. Stemdier Dr. George A. Ferguson Dr. James C. Lamb 111 Dr. Quentin J. Stober Dr. Harfy Foremen James A. Laurenson' Seymout Wennet R6 chard F. Foster Gustave A. L' enbergee' John F. Wolf a John H Frye Hl' Dr. Linde W. Uttte She6 don J. Wolfe' Jarnee P. Gleason i l i

• Permanent panelmembers l

%~ m = l l l

( 1 Cite as 18 NRC 1366 (1983) LSP.88 77 1 UNITED STATES OF AMiir'.tCA NUCLEAR HEOULATORY COMMISSION I ATOGNC SAPItTY ANO LICENSihG COAllO I Sefere Administrative Judgeot Peter S. Bloch, Chaltman Dr. Jerry R. Klone i ut, etenn o. Betent In the Metter of Deeket Nee.80 440 0L 80 4410L (ASLSP No.81487 04 0L) CLSVELANO ELECTRIC ILLUMINA'llNQ COMPANY, et. W. (Persy Nweleet Power Plant, Un6te 1 & 2) December 2,1943 The Licensing Board dism!sse: a uvslity assurance contention, Onding that there were no quality asautance dc0ciencies that seriously call into 4'JeMion applicant's ability to control its electrical contractor, I a commit. rinnt to the qaality ofits plant, or it.c safety of any plant compt nant. QUALITY ASSURANCE: RE.40LUT10N OF DEFICIENCIES Appendix B to 10 C.F.R. Part 50 requires prompt resolutlan of quality suurance denciericles. This standard should be Interpreted as requiring reasonably prompt resolution of danciencies. If a quality assurance deficiency is serious, it must be resolved i imrnedlately. On the other hand, less wrious druciencies or minor den. i cit.tcies in writt.'n procedures may be resolved "promptly"in a rnatter of days or months. 1 i 1345 i i i s n u.

Furthermore, in reviewing a very large number of deficiencies, a rea-sonableness standard considers the possibility that there will be some laggards in the race to resolution. QUALITY ASIURANCE: NUMBERS OF DEFICIENCIES The number of quality assurance deficiencies identified at a plant is an ambiguous measure of the program's adequacy, in the absence of other interpretive information. i QUALITY ASSURANCE: SIGNIFICANCE OF VIOLATIONS Although applicant has been found responsible for certain severity Level IV and Level V quality usurance violations, this may merely rep-resent perturbations v-ithin an essentially sound system. QUALITY ASSURANCEt RESPONSIVENESS TO CRITICISM - The Board considaieu testimony concerning arplicant's attitude and its responsiveness to advesse Maff findings to be relevant. PARTIAL INITIAL DECISION (Qvs11ty Assurance Contention) This Partial Initial Decisitui deci<tes the remaining aspect of a quality assurance contention, portions of which survived summary disposition.' l The pdrties are Cleveland Electric illuminating Company, er al., (applicant or CEI), Sunflower Alliance Inc., et al. (Sunflower), Ohio Citizens for Rc+,ponsible Energy (OCRE) and the Staff of the Nuclear Regulatory Commission (staf0. The genuine issues of fact set for trial were: The esistence, cause, severity, duration and estent of an allesed instance in which arpinant's quality assurance program failed try not properly controllins its elecitKat contractoft, I summary D ornwec>n oss densed in LsP 12 Ild,16 NRC 190e 11)62) and this result see recon. Armed in LhP.83 3. If NRC le (1983) In LBP 8).74,18 NRC 1241 t1963) we resolved aspects or thse toelenteon teoulting from out teotiening er the receed le tessive evepente stout two leewet 3ef LsP 8bl2, it NRC 236 (194)). In hiemorandum and order (Procedural oiweteone and stafr witnese Questioni, dated Aug Mi )c 194), we teeolved les procedural snetters taised by sunnowet Alhance Ine eret (sunnowers. im 4

~ 'j Whether the alleged deficiencies in properly controlling electrical contractors extend to the proper control of other contractors. Whether deficiencies in the control of contractor activities have resulted in unsafe { conditions at Perry. i Whether applicant has an adequate system for periodically reviewing its program l for assusing the quality of contractor performance and ascertaining and correcting deficiencies that have arisen, particularly in systems essential to safe plant operation.2 These were the only issues of fact set for trial following a period of very broad discovery rights.2 Consequently, these issues examine applicant's-quality assurance program in the context of a " worst case."' l During the public hearing on this issue, held May 24-27, special atten- ? tion was paid to the findings of the NRC's staff (stafD in Report 81-19, 4 September 24,' 1982. It was Report 81-19 that caused us to' deny staffs motion for summary disposition. At the hearing, the Board attempted to assure that every important question raised in that report was pursued in - \\ sufficient depth so that our record would be coniplete. In addition, the - Board attempted to assist intervenors, who were without counsel, by rea-sonably pursuing each problem with which intervenors were concerned. We are convinced, after reviewing the proposed findings of the parties and considering the entire record, that there are no quality' assurance i deficiencies that seriodsly call into question applicant's ability td control. its electrical contractor, its commitment to the quality of its plant, or the safety of any plant component. We consider. Report 81-19 to have been cautious and carefully prepared. The staff. witnesses impressed us by their candor and their concern with the safety of this plant. Si_milarly, we 4 3 I were impressed by the knowledge and candor of applicant's witnesses, l Mr. Murray R. Edelman and Mr. Gary R. Leidich.' 3 The construction of Perry is a massive task. We a're not surprised that applicant's quality assurance program has detected thoutands of noncon-l . formances 'that have. arist.n during construction. Nor are we surprised that one of the construction contractors has had problems, including problems in hiring enough quality assurance ietspectors and the training ~ of electrical craft personnel. However, we are riassured that applicant i. I IL8P-82 ?!4,16 MC 19N P*;2) at 1917. 3 LP,P-82-IS,15 NRC)33 (1982) at 564.

• of Novemoer 25,198J. oCRP. Informed the Board chairman that it was y,cparing a motion to l

reopen the record on quality assurance, based on newspea reports ofimproper dischaises of quality assurance persocnet. The issuance of this decision does not prejudge the nierits cf the motion for reconsideration. It mere.y resolves the issues that were fuHy tried and were cu rently before us. Should new evidence cast doubt on our conclusions, the conclusians play be revised. .i; -r i ' 1367.' i 1 j t A_ _ __. _ _.m.,., .. %s i 4 s b 4 ~ h g [' 3 ( ~ ) 4.. - 'c

t v W i has a quality assurance program that alerted it to most of the LK. Com-O . stock problems. We also are reassured that the staff has conducted an in-vestigation that identified further problems that needed correction and that applicant was responsive to the stairs findings. There is no indica-ti:n that there are serious problems that have escaped detection or are h not being carefully tracked and resolved. Intervenor OCRE is concerned about the large number of deficiencies i ,being discovered by applicant. However, we have no reason to believe that the number of deficiencies is abnormal or is indicative of sloppy craftsmanship or of a safety problem in the plant.., i i OCRE also is concerned that a'pplicant has violated 10 C.F.R. Part 50, Appendix B, Criterion XVI because it has not "promptly identified and corrected" nonconformances. This concern arises because some of appli-cant's nonconformance reports have taken long periods of time to resolve. For example, twelve reports (only some of which 'may have be:n related to Comstock) have been left open for over four years.5 We conclude, however, that it is reasonable to expect that applicant i~ 'would have varying success in the speed of resolving the large nuniber - of deficiencies involved. The test of whether matters are being resolved so slowly as to violate regulatory requirements is a test of reason-ableness. In this instance, the test has been met; each time intervenor l. inquired into'an apparently lengthy delay, applicant demonstrated that s th2 delay in resolving the matter did riot have safety significance. Although we may have wished for prompter action in.resblving non-conformances in some instances, we are convinced that there have been - 4 no inordinate delays and that the safety of the plant has not been com-promised by delay's. Whatever regulatory violations have occurred have been comparatively minor in nature and do not merit the denial or' con-ditioning of a license.' In reviewing the propdse'd findings of the parties, we found that appli' cant's position was closest to our own and that its findings would help us 8Tr.1164. 9Ahhough there sre some regulatory requirements, essr%al to safety, whose violation Ms3 reouire denial of a *wou,'there are other requirements that do ret have riajor safety segnificance and whose l breach dots v.ot require demal or a hcem Compare 5*ermont rankee %ricar Poiser Ctrp. tv;fsnont Yenkee NirlA.r Power station). ALAB.D8. 6 AEC 520. 528 29 (1973) and Meme Fenkee Asonur l Power Co. (Mame Yankee Atomic Power Station). A1.AB-161. 6 AEC 1003.1010 (1973) to Consowst-ed Edison Co. of New hvt findian Poirt station. Unit No. 2). A!.AB-188. 7 AEC 323.M3 34 (1974) ("Whether hcensing can be authorned in the hght of existing deficiencies obviously depends on the sig-g mficance of the deficiencies."). We reject the impracdcal proposition that any minor violation of qualuy cssurance regulations, regardless of wbether the violation calls plant safety seriously into question. 5 l-would call for denial or a license We do not believe the Commission intended that fallible human beings, who must administer quality assurance programs, would be held to such an impractical standard. 4 l 1368 { J t_ cw* s -W .eA4e 4

• -*y=e r-g op - e w,,,.

v 4 y, ? _ :~ .a + g i

I l 3 j to explain our personal conclusions about the quality assurance i contention. Consequently, in the remainder of this Partial Initial Decision, we use applicant's filing freely, without quotation or attribution, altering it to fit our own style and beliefs. i f I. OVERVIEW OF ISSUE NO. 3 1 A. Sequence Leading to Issues of Material Fact t Applicant filed its operating license application for Perry on June 26, 1980. In February 1981, the NRC published a FederalRegister Notice of " Receipt of Application for Facility Operating Licenses, Consideration of Issuance of Facility Operating Licenses, and Opportunity for i Hearing."2 This notice provided an opportunity for any person whose 1 interest might be affected by the proceeding to request a hearing and file a petition for leave to intervene. Several intervenor groups'and individu-als filed petitions in response to the FederalRegister notice. By order dated April 9, 1981,8 the Board made initial determinations concerning party status and scheduled a special prehearing conference pursuant to 10 C.F.R. j 2.751a. The Board convened a special prehearing conference in Painesville, Ohio on June 2-3,1981, and thereafter issued a special prehearing conference order on party status, contentions and discovery.' Intervenors Sunflower Alliance Inc., et al. (Sunflower) and ' hio Citi-O zens for Responsible Energy (OCRE) have litigated Issue No. 3. Al-though Sunflower is the designated lead intervenor for Issue No. 3,t* OCRE has also been involved actively. As originally admitted by the Board, Issue No. 3 stated: i t l Applicant has an' inadequate quality assurance program that has caused or is con-tinuing to cause unsafe construction. We defined this issue as being limited to a stop work order issued by ap-plicant and to a related NRC immediate action letter, both of which were issued in February 1973, and to corrective action and any remedial t 7 46 Fed Reg. 12.372 (!98?). 8 Memorarshm anc order (scheduling Preheanne Conrerence Regarding Petit 4ns for Intervention). appended to LBP 81.N.14 NRC 175 (1931) at 231 'Special Prehearms Conference Memorandum ano Order Concerning Party status. Mations to Dis-miss and to stay, the Admissitnlity orContentions, and the Adoption of specut Discovery Proced' ares, LBP-81-24,14 NRC 175 (1981). 30 /d 14 NRC.at 231; see unpublist.ed Memorandum and Order (Concerning Procedural Motions), dated september 17.1982. ,3 1369 r-i 5_ _._ __._- O m

4 deficiencies related thereto." Despite the limited scope of the issue, in the interest of full disclosure the Board accorded the intervenors broad dise:very concerning applicant's quality assurance program.32 On October 29,1982, the staff filed a Motion for Summarybisposition cfIssue No. 3. The affidavit supporting the staff's motion stated that ap-plic:nt had adequately addressed deficiencies relating to the February 1978 stop work order, and that there were no residual QA deficiencies cf a serious nature." After considering the filings of the parties, we granted in part the stafTs summary disposition motion. In our summary disposition decision, we indicated that we were. con-t i c;rnid with apparent deficiencies in applicant's control of the electrical con' tractor subse'quent to the 1978 stop work order. This concern stemmed from our review of an NRC investigation report and notice *of viohtion arising from an investigation of the electrical area initiated by NRC in October 1981,34 and related findings in an NRC Systematic As- , sessment of Licensee Performance (SALP) report dated July'13,1982.n In order to consider the significance of some of the unrebutted factual findings in Report No. 81-19 and the SALP report, we' admitted'for trial the following genuine issues of material fact: 1-The existence, cause; severity, duration and extent of an alleged instance in which applicant's quality assurance program failed by not properly controlling its electrical contractors. { l s Whether the alleged deficiencies in properly controlling electrical contractors extend to the proper control of other contractors. Whether deficiencies in th'e control of co' tractor activities have resulted in unsafe n conditions at Perry. . Whether apphcant has an adequate system for periodically 'eviewing its program r for assuring the quahty of contractor performance and ascertaining and correcting deficiencies that have arisen; particularly in systems essential to safe plant ooeration.16 31 LBP-8124,14 NRC at 209-12; Memorandum and order Concermns the status of Ashtabuls County and objectiots 10 the special Preheanns Conference order, LBP-8135,14 NRC 682,687 (198D. 12 ee Memorandum and Order (Cowernmg Late Filed Coritentions Qualitv Ass, uran;e, Hydrogen S Explosion. and Need for Inacased Safety of Control system Equipment), LBP-82-15,15 NAC 555, 556, 364 (1982). 33Alndavis of James E. Konklin and Cordel; C. Wilhams in Support of Summary Disposmen ofissue - No. 3. dated October 22,1982. 34See letter dated Septemt.er 27, 1982, James Keppler (NRC) to Dalwyn Davidson (awhcant), tnclosms Notice of Violation (September 24,1982) and Investigation heport 50-440/81 10(E15); 50-441' /81:19(fE) (Report No. 81 19) (Licens.ng Board Ex. 3). 38M1morandum and order (Concermns summary Disposition-ouahty Assurance. Corbuk and Scrim Discharge Volume Contentions), dated December 22,1982, LBP-82114,16 NRC at 1915-17. 16 g.: j 9g7, i 1370 a 9 e-a -9f W 9 <n-a- -

a l By admitting these four issues, we were required to explore fully the implications of the staff's electrical investigation and findings, and to determine independently whether any significant deficiencies in appli-cant's QA program were indicated by applicant's performance in the electrical area. In our Memorandum and Order (Reconsideration: Quality Assurance), dated January 28,1983 (LBP-83-3,17 NRC 59), in which we declined to reconsider our December 22, 1982 Memorandum and Order admitting the four issues of fact, we reemphasized that our pri. mary concern was with applicant's QA overview program as applied to 3 Comstock. We noted that we would only consider other specific noncon-formances if we found that management's role in QA' has been suffi-ciently suspect to require that we descend to that further level of detail." B. Prefiled Testimony and Evidentiary Hearing Pursuant to our Memorandum and Order (Procedural Matters Affect-ing the Hearing) of April 18,1983 (unpublished), direct testimony was filed on May 2,1983, by applicanti8 and the staff. Neither Sunflower nor OCRE filed testimony or presented witnesses on Issue #3. As indicated in applicant's prefiled testimony, Mr. Edelman is apph-cant's Vice President, Nuclear Group. As such, he has the overall management responsibility for the Perry Project. The various Perry Proj-ect department managers, including the.QA manager, report. to Mr. Edelman. He has worked at Perry since 1972 in various management capacities. Mr. Edelman was the Perry QA Manager from 1978 to 1981, and in that capacity was responsible for applicant's QA Management re-sponse to the February 1978 stop work order.m Mr. Leidich, who is an electrical engineer by degree and. training, has' worked at Perry since j 1975 in various quality assurance and engineering supervisory positions. , Mr. Leidich also is currently serving as Secretary of'the' Nuclear Peer Enginee'ing' Committee l(NPEC) of the Institute of Electrical and r l' . 37 Memorandum and Order (Reconsideration-Quality Assurance), dated January 28, 1983, t. LBP 83-3,17 NRC at 65, see abo Tr.14e5. 18 " Applicants' Testimony of Murray R. Edelman sM Ga*y R. Leidich on the Cleveland Electric !!!u-minating Company's Quahty Assurance Program for Control of safety Related Contractors at Perry Nuclear Power Plant (Issue #3)," dated May 2,1983, followmg Tr.103I (hereinafter Edelman/Leidich Tesumony). I'* restimony of NRC Region 111 on the Quality Assurance issues of Fact Contained in the Licensms Boarfs order of December 22,1982," dated May 2,1983. following Tr.1568 (testimony of James E. i Konklin, Corde3 C. williams, George F. Maxwell, and Max L Gildner, hereinener Konklin, er al, Testimony). M Edelman/Leidich Testimony at 2-3,7-8. l j 3 1371 l i aus-s -we==-- =~ea-== +

• * * " ~ ' * - * *
• 7 e.

v +

~ Electronic Engineers (IEEE), and has participated in developing nuclear electrical standards for IEEE.28 In their prefiled testimony, Messrs. Edelman and Leidich provided a g:neral description of the stalling and organization of applicant's QA program, an explanation of the procedures followed in applicant's QA overview of contractors, and a discussion of the application and findings cf apphcant's QA program in the electrical area. In response to a request by the Board,22 applicant's direct testimony concerning the electrical area was supplemented at the hearing by Mr. Leidich, who presented a detiled month by'-month historical. description of applicant's QA over, i i viso of Comstock.2) The staff witness panel included four NRC regional inspectors, each of whom has had NRC inspection experience at Perry.2* Mr. 0.nes E. Konklin, the lead panel member, is Chief of a Reactor Projects Section in NRC's Region 111 office, and is responsible for coordinating and con-trolling the NRC's inspection and enforcement activities at Perry.~Mr. Cordell C. Williams, Chief of the Region 111 Plant Systems Section, su-pervises NRC electrical inspections at Perry and was directly involved in the electrical investigation, conducted between October 27,1981 and March 19,1982.25 His name appears on Report No. 81-19 as one of the i principal reviewers of that document.2* Mr. George F. Maxwell, current-ly an NRC Senior Resident inspector at the Sheaton Harris site, was a. Region Ill Quality Assurance Specialist for Construction from 1977 to 1980 and performed ten inspections at. Perry during that' period. Mr. Max L. Gildner has been the NRC's Resident inspector at Perry since 1981. ' The staff's prefiled testimony summarized the res' lts of NRC inspec ' u tions performed at Perry since 1978. The testimony provided details of ^ the staff's 1981-82 investigation 'and findings and discussed the appli-i cant's corrective action in response to Report No. 81-19. The Board received limited appearances on May 23,'1983, and May 31, 1983,27 and conducted an evidentiary hearing on May 24-27, 1983, in Painesville, Ohio. We received a site tour of electrical and other areas on June 1,1983. 21 Edelmarut.cideh,Testirnoriy at 3 5. 22 Tr.1006 (BoardL i 23 Tr.1441 1543 (i endich); ser section !!!.B., wifra. l 24 Konklin. er al. Testimony at 2-J. 23 Tr.1572 (williams). 26 Board Ex. 3. Report No. 81 19. at 1; see Tr.1626 (williams). 27 we also granted an unscheduled limited appearance on May 24.1983..Tr.1134-36. 1372 I l l + -g.

i I C. Governing Standards Applicant's QA program for safety-related work is governed by the criteria in 10 C.F.R. Part 50, Appendix B, of the Nuclear Regulatory Commission's regulations, and by various industry codes and standards.28 In deciding the issues of material fact we have particularly considered 10 C.F.R. Part 50, Appendix B, Criterion II (Quality Assur-ance Program),2' and Criterion XVI (Corrective Action)." We are not aware of any Commission regulatory guidance elaborating upon Criterion XVI's requirement that adverse conditions and nonconformances be "promptly identified and corrected," and th>e parties have identified none.)! In the absence of such directly applicable guidance, we reject OCRE's suggestion that 10 C.F.R. Part 2, Appendix C, " General Policy and Procedure for NRC Enforcement Actions," is directly helpful to us in interpreting this language. in the context of the seri'ous problems addressed in Appendix C, " prompt",may be defined as "immediate." However, t.his use of lan-guage in Appendix C is consistent with our view that we should, apply a reasonableness test to determine what is " prompt." If a deficiency is serious, particularly if it has immediate implica'tions for ongoing construction, it must be remedied immediately. On the other hand, less serious deficiencies or minor deficiencies in written procedures may be resolved "promptly" in a matter of days or months. Furthermore, in reviewing a very large number of deficiencies, a rea-sonableness standard considers the_ possibility that there will be some laggards in the race to resolution. Providing the laggards do not them-selves constitute serious problems, their existence merely' confirms the bureaucratic principle that institutions are unable to resolve everything . 28Edelman/Leidich Testimony at 12, Auachment 3. + 2'Sre LBP-82-l!4,16 NRC at 1914. In that decision. we referenced what we view to be the relevant portions of Criterion II. namely-The quality assurance program shall provide control over activities afrectang the quality of the identified structures, systems, and components. to an extent consistent with their importance to safety....The applicant shall regularly review the status and adequacy of the quality assurance - program. Management of other organizations participating in the quality assurance program shall regularly review the status and adequacy of that part of the quality assurance program whsch they are executing. M Cnterion xVI states-Meassres shall be established to assure that condi' ions adverse to quality, such as failures' malfunctions, deficiencies, deviations. defective t.iatenal and equipment, and nonconformances are promptly identified and corrected. In the case of sigmricant conditions adverse to quality, the measures shall assure that the cause of the condition is determmed and corrective action taken I to preclude repetition. The identification of the signiracant condition adverse to quality. the cause of the condition, and the corrective action taken shall be documented and reported to ap-I propriate levels of management. 33 See Tr.1399-1400,15,94-99. . t 1373 9 !( a. ..M = n k b .g ( ~~:.._.. ' _ - _.

immediately. Small numbers of relatively unimportarit laggards are not cf themselves a source of serious concern. In addition, we note that intervenors are required to do more than .1 simply cite deficiency reports (applicant's or staft's) in support of their quility assurance contention. The number of deficiency reports is an am-t biguous measure of the success of a QA program. A low number of find-ings may indicate either an inactive QA program or a very effective one thit prevents recurring difficulties. Likewise, a large number of findings may indicate that a QA program is active or that it has failed to prevent .I the recurrence of deficiencies.32 Furthermore, were we to pay excess at-tention to the number of deficiencies, by itself, we might " create an ad-verse incentive for reporting deficiencies; and this incentive could se-riously impact safety."33 II. RELATIONSHIP BETWEEN APPLICANT AND COMSTOCK Applicant presented extensive testimony about its QA overview of Comstock. Some of the testimony described the characteristics of appli-cant's QA overview program for controlling safety related contractors, including Comstock and others.. Applicant a_ so gave specific testimony l on how their overview program covered the electrical area. This included a detailed review of the major QA findings against' Comstock and the corrective actions taken by the contractor. A. Applicant's General Program Applicant manages the Perry Project through its Project Organization, consisting of all applicant and consultant 3' personnel at'the Perry site'. There are now approximately 650 ap'licant and 700 ' consultant p personnel. Contractors are not part of the Project Organization." Applicant consolidated its entire project organization at the Perry site in 1978 as part of a major corrective action program put into effect fol-lowing the 1978 stop work order." The Board finds that the post-1978 management changes, devised by the applicant and the staff, reflect sig-nificant organizational ' mprt.vements. i 32 LBP-8124.14 NRC at 211. 33/d 34 The consultants provide specific expertise or short-term support to applicant. They are -integrated" into the Project organnation. Edelman/Leidgh Testimony at II. 3514. at 1. M /t at 8-9,1516. 1374

4 Mr. Edelman presides over the Project Organization.37 In this role, he has ultimate project responsibility for the quality assurance program. Mr. Edelman testified as to the close organizational an.d working rela-tionship between his office and those of other senior applicant executives, including the President. Executive communications were i formalized as part of applicant's corrective action following the February 1978 stop work order. Applicant instituted formal monthly vice-president I meetings and quarterly management meetings with applicant's Chief Ex-ecutive Officer and President. In addition, applicant established a special QA advisory group which assists Mr. Edelman on key program issues.38 Also, since 1978 the Perry Quality Assurance Manual has contained a policy statement signed by applicant's President, which describes and I commits applicant to a strong, independent QA program for Perry.3' The Board concludes from this uncontradicted evidence that appli-cant's most senior management has been thoroughly involved in the management of the Perry Project, and in particular the quality assurance. program. We believe that this type of senior management involvement is a prerequisite to the successful implementation. of a nuclear quality assurance program. Applicant's direct testimony described the organization and staffing of the Perry Quality Assurance Department, the QA systems used by appli-cant for controlling contractors, and the applicant's. management tools used,for periodically reviewing th'e effectiveness of the QA program.". Applicant's Nuclear Quality Assurance. Department is headed by the 4 QA Department Manager. He reports to the Vice President, Nuclear Group (Mr. Edelman) and has organizational status and authority eq'ual to th.at of the managers of the construction, engineering, and operations departments. Under the QA Manager are various QA sections headed by applicant's general supervisors. One of these is the Construction Quality Section (CQS), which has the direct responsibility for QA control of con- . struction contractors such as Comstock. CQS is divided by discipline into four units, one of which is the CQS electrical unit. Separate from CQS is the Quality Auditing Unit, which is responsible for internal audits of the Project Organization as well as contractor audits.'t i Since 1978 applicant's QA Department has grown from fewer than 50 to approximately 200 personnel. The CQS electrical unit has grown from l 2 in 1977 to 12 currently; Applicant's personnel perform "second-line" 37A number of applicant's project management officials (including Mr. Edelman) have significant pnot project QA expenence. /d at 10-11. + 3Pld at 7-8.15-16,23-24. 3'It at 14. and Attachment 3.

1. It at 815.and Attachment 2.

48 /d at 8.16.1819 and Attachment 2. 1 i l, 1375 I f I 4a b

surveillance and inspection. "First line" inspection is performed by the contractors' QA/QC personnel, who currently number in excess of 300. Applicant's QA force has been increased when construction activities havs increased. Applicant presented uncontradicted evidence that Perry . has one of the largest nuclear plant QA departments in the country, and thit as of June 1982 it had the best (lowest) ratio of craft to quality assurance / quality.. control (QC) personnel of any plant under c:nstruction.42 The QA staff has a large number of certified inspectors and auditors. The rate of turnover of' personnel has been low. Mr. Edel - 3 man attributed this to applicant's s' alary structure,'to training and promo- - i tion of inspectors, and to applicant's success in attracting experienced personnel with. local. ties.43 The Board was favorably impressed with the evidence applicant presented regarding applicant's overall QA staffing - and organization. Applicant's QA oversight of individual safety-related contractors begins with detailed reviews of the contractor's written QA program and, procedures, which must conform to applicant's QA program. The con. tractor's program must be approved by applicant before safety-related j construction can commence. During construction, applicant continues to review and approve all changes to the contractor's program and procedures." A'pplicar'It's' daily oversight of tlie contracto'r's QA/QC program imple-1 mentation is the responsibility ofinspectors and quality engineers (QEs) } in the Construction Quality Section. The inspectors and QEs are orga-niztd by contractor areas, with a responsible QE and supporting inspec-tion staff assigned to each contractor. The inspectors spend 85 to 90% of their time in the field overseeing arid inspecting the contractor's QA/QC l w:ork. The extent of field surveillance and inspection,is intended to be J related to the safety significance of the activity, the level of construction activity, previous contractor performance, and the extent to which a .'.~ new type of work or procedure is involved. The inspection results are reviewed by the responsible QE, who also performs " process audits" in specified areas, as well as other ongoing QA program and procedure + reviews. The responsible QE participates with a design engineer and con-tractor administrator on a'" contract team," which meets regularly to l review the status of the contractor's program.'5 s Applicant's QA program uses formal documentation /close-out m:chanisms, including nonconformance reports (NRs), observation / y 42Id at 9.17. Tr.1045-54.1215-17 (Edelman). f 43 Edelman/t.cidich Testimony at 9-10.19. 44Id at 13.19-20. 4514 at 9.1619,22; Tr.1077-83.1118 (Leidwh and Edelman). 1376 4 i l i 4 a b-

t 1 l i I surveillance or audit action requests (ARs),a corrective action requests (CARS),*7 and stop work notifications (SWNs). Each is recorded by the initiating inspector or auditor, and tracked through the system until i closcout. Each applicant and contractor NR is entered'into a central, computerized NR tracking system and monitored by an NR coordinator 4 in applicant's QA Department. Applicant's testimony documented the number of NRs, ARs, CARS, and SWNs issued to date in the electrical area, and the total number of such documents issued to all safety related contractors.*: Applicant uses a number of different periodic review mechanisms to overview its formal daily inspection and corrective action program. CQS prepares monthly performance analysis reports (PARS) discussing ilidi-i vidual contractor performance. These are based on quantitative informa-l tion collected by the responsible QEs. Significant PAR information is passed up applicant's management chain." ( Of central importance to applicant's QA overview program are quarter ' [ ly reportsso prepared by the QA Department manager. These reports, l which were a response to applicant's 1978 QA difficulties, provide sum-maries of contracto'r QA performance for the quarter. The reports are reviewed at quarterly Chief Executive meetings.5L The Quality Assurance Advisory Committee (QAAC), composed of senior CEI managers, the corporate QA managers for applicant's L, ' consultants, and an outside QA consultant, separately reviews site QA [ reports and conducts' first-hand reviews as' part of applicant's overview l, program. The QAAC then consults with and advises applicant's Vice f President, Nuclear Group, regarding its findings.52 Mr. Maxwell of the' . staff. indicated that the QAAC was not established in response. to an 4 ~ NRC requirement; however, he believes that the committee has been beneficial to the Project.!2 l l , 4 When arr'icara QA personnel identified programmaue or procedural deficier.cies not involving plant %srdware " these a.e documented by CQs personnel as observation or surveillance ARs. or by the l . Quality Auditing Unit as audit ARs. The Quality Auditing Umt is responmble ror the tracking and follow up or all ARs. A computenzed tracking system is used ror this purpose. Each Unit is responsible for closing out ARs which it generates. Edelman/Lentich Testimony at 21. ' ' i 47 It in reviewing an AR the umt that generated it determines that a senous programmatic probiem is l involved, that umt changes the AR to a CAR. The purpose or the CAR is to assure that the probiert re-ceives increased management attenhon. All open CARS are identined to applicancs managers and the j. vice Premdent, N achar Group, on a monthly basis /d as14 at 20-21;Tr.1076 77,1116-22 (Leidsch and Edelman).

1. Edelman/Leidich Testimony at 23; Konktin, er el, Testimony at 20-21.

50 Assessment or Quality Assurance Program Effectiveness ror the Perry Nuclear Power Plant. First . Quasser 1979 - First Quarter 1983 (Licenang Board Ex. 2), identified at Tr.1256. received at Tr.1259. 38 Edstman/Leidich Testirnony at t6, 24; Tr.1074-75; Konklin, et al. Testimony at 21. 52 Edelman/Leidich Testimony at 16. 24; Konklin, er et, Testimony at 22. i 53Tr.1701-83 (htamwett). l* l. t, g,' : + + l 1377 i ~ 4.___.--.----.4 - :-m.~ 4 a o s. I L- ~ e l - w .e ,u 4-., n ,,-g .p., - r- .,.q---,- g w p

r a + Another aspect of applicant's QA overview is its formal auditing program. Applicant created the Quality Auditing Unit in 1980 as an inde-M pendent QA Department unit reporting directly to the QA Department Manager. This replaced the former auditing arrangement, under which 4 audits were performed by the CQS QEs, along with their other responsibilities. The auditing unit conducts annual audits of safety-reitted contractors, as well as periodic internal audits of the Project Or-ganization's QA program implementation.5* 1 These riviews collectively constitute. applicant's periodic review system.~ Applicant emphasized that itsioverview mechanisms are not in- 'p p ten'ded to substitute for the formal ' inspection and corrective action system (i.e., the NR/AR/ CAR /SWN system). Further, applicant j stressed that periodic QA reports are principally for highlighting problem areas, rather than for detailing program areas that are working.well. In response to a Board inquiry, Mr. Leidich illustrated how ap'plicant's QA process is applied, using the example of electrical cable pulling. The l first step described was the pre-pull walkdown inspection of the cable ' [ tray or duct bank. Its purpose is to examine for any obstructions that might damage the cable during the pull. In addition to the contractor's pre pull inspection, applicant may formally identify to the contractor a i mandatory hold or witness point to enable applicant's QA/QC persorinel to perform a second line inspection' prior to cable pulling.55 The contrac-: j tor must perform 100% coverage of all cable-pulling activities. If the pull - is complex', applicant would also perform surveillance over all pulling activity. This decision would be made by the QE, and would be reviewed by his QA management, including in some cases the QA Department l Manager. Both the contractor's and applicant's inspectors prepare inspec-tion reports of their activities, and formally document any deficiencies ~ that are found. That documentation is then reviewed by applicant's QE, and ultimate,1y becomes part of the projectN permanent quality records. The QE then prepares reports, generally on a weekly basis, of the status T . of cable installation activities, including performance evaluations of the contractcr. These reports go to the CQS supervisor and then to the QA j Departrnent Manager. Information in these reports then is conveyed to senior management through the previously described reporting system.s. Fer each of the inspection steps, there are detailed work and inspec, ' tion procedures. These procedures receive thorough reviews by applicant design and quality engineers prior to being accepted for use. The indi- 'I 54 EdelmarVLeidich Tenimony at18-19. 25. i 55 See, e.gl. Tr.1509 (Leidich). se Tr 108).89,1096-97 (Leidsch).- y ( ~ 1378. .[ 7 i' sa 4 .-eet.- h-=- e e- ~ ) e ~ V 4 (; ~ J. ): Y ~v

_. _,. ~... _ . _ _.. -.. _. -. - ~.. ~ - - ~. - i vidual inspectors are responsible for documenting compliance with ap-plicable work and inspection procedures." During the actual cable pull, dynamometers are attached to the cable. J. These register cable tension during the pull and are read by inspection personnel to assure that the tension is within pre-specified limits. Al-i though the manufacturers' engineering values for cable tensions are con-servative58 any overtensioning is documented on an NR, which then re-ceives engineering review. If over tensioning occurs, the design engineer I may direct that the cables be scrapped or may determine that the cable may be used as is. To determine that a cable may be used as is, a design engineer may perform additional calculations or may consult with the manufacturer concerning the need for additional tests.5' i Mr. Leidich also described post-pulling inspections. These inc!ude meggering tests performed by the contractor's inspectors. Their purpose is to measure for possible cable insulation deficiencies that may have i been caused by faultp pulling procedures. After the completion of these' tests, the cable is turned over to applicant's inspectors, who perform a review of all documentation. This assures that any deficiencies are prop-erly identitled and corrected prior to t'urnover. At the completion of this second level of review, applicant's nuclear test section performs another review of the cable system, which may include another meggering test. This would be followed by preoperational testing.68 4 In addition, cable pullin.g' is covered by applicant's formal audit program. Audits are performed at least annually and rnay be performed' more often in specified areas, particularly when there is a concern over contractor performance. There may also be increased auditing when a. new w'ork activity begins. Audit checklists are used by the auditors, with input from the quality and design engineers.68 j The stsff's direct testimony described the staff's construction inspec- ) tion program for Perry, and provid'ed a summary of~ the staffs ir.spection l findings since the beginning of the project. The NRC reviews applicant's l written QA program and procedures, as well as those of the contractors. i The staff observes, on a sampling basis, the construction and QA activi- ] i h i .t es at t e s te. This is followed by a review of QA reccrds. The staft's in-l spections are intended to assure that the Perry QA program is identifying and requirin'g' correction of significant deficiencies.62 In addit' ion to'the 1 l I* 57Tr.1094 96,1099 (Leid ch)[ j 58 Tr.10971104 (Leidich). { 5' Tr71107 08 (Leidich). i 68 Tr.1104 07 (Leidich). i 61 Tr.1089 9) (Leidich). 1 63 Konklin. er el. Testimony at 4 5. }

l }

f 1379 t 1 i .l i er ~0 b~ sjy, ( ,4 .4

_.. _~ _ l stafi's routine inspection program, the staff evaluates and investigates t tilegations and performs special team inspections by regional or head-qutrter groups such as the Regional Construction Assessment Team (CAT) review performed at Perry in July and August 1982.u From July 1978 to April 1983, the staff spent over 6000 inspector hours on inspections at Perry. The staff conducted 95 inspections and identified 64 noncompliances. There were thirteen noncompliances issued in the electrical area. The total number of noncompliances at j Perry.was average for construction sites in Region III. The noncompli-rnces identified were not serious, as defined under NRC enforcement l policy guidelines. During this period, the staff issued no enforcement orders and imposed no fines.** The NRC's 1982 CAT investigation re-quired 464 inspector-hours and included, among other things, a review of applicant's QA overview program, corrective action systems, in-process inspections, and inspector effectiveness. The CAT review concluded that applicant's QA program, appeared to be satisfactory.65 Three NRC Systematic Assessment of Licensee Performance (SALP) reports, covering July 1979 through September 1982, made similar find-performance.66 of applicant's overall regulatory ings about. the acceptability When the staff has identified deliciencies, it has considered applicant's corrective actions to be effective. Indeed,'Mr. Cordell Williams, who im-pressed the Board with his candor and concern for the public, safety, stated that applicant "tends to go further" than required and.is l " extraordinarily responsible across the board."" Staff witnesses further testified that in their view, all deficiencies identified by the NRC at Perry either have been or will be corrected, so that no unsafe conditions will exist at the time of fuelload or operation.68 Tne staf!'s predled testimony also di. cussed applicant's QA overview system and stated that'the system is adequate to assure the quality of i. contractor performance, including the identification and 'correcti3n of o i L 63/d at 5-6. 64/d at 6-7.9. 4 45/d at 10.

• • /d However. the stafr did rate the Perry electncal area *besuw aserase" in the 1982 Pero sALP repcrt (sALP 21. The rating was based on the findings of the stafTs 1981-82 investigation. /d To avoid a double penahy for findings or Report No. 81 19. and because or the corrective action under way, the stafr did not rate the electrical area in the sALP 3 Report. Tr. 1$88 89,1780 (Konkhn),1834 J5 (Wdliams). staff witnesses testified that during the sALP 2 period seven plants were rated in the electri-cat t.rea and four of the seven received below averase ratings. Tr.1794 (Konklin). See section v, ht/ra.

67Kon6 lin, er al Testimony at 23 24. Tr.1672 (withams). See section V, et/ra. as Konklin, er at, Te,timony at 27. i I 1380 sw 9 D d ? 6-

i j any construction deficiencies.*' The staff testified that it does not believe i there has been a loss of control of Comstock or other site contractors by applicant.78 The Board has considered the evidence presented?' concerning the ef-fectiveness of applicant's general QA overview program. Based on this evidence, we find applicant's general program to be an acceptable one. We conclude that applicant's program is comprehensive and provides ap-propriate assurance that significant construction deficiencies have been and will be identified and corrected, thereby minimizing the likelihood i i of unsafe conditions at the plant. } i B. Chronology of Applica'nt's Electrical QA Program 1 Applicant's prefiled testimony summarized applicant's initial selection and QA review of Comstock in 1977, and then discussed applicant's principal QA' findings against Comstock; and corrective action taken, since the time Comstock began its work at Perry.72 At the commence-ment of the hearing, the Board requested a more detailed " play by play" discussion of applicant's overview program in the electri-cal area.73 Applicant answered the Board's request with a detailed presentation by Mr. Leidich. In response to our recommendation,75 applicant's pro. posed findings of fact and conclusions oflaw provided a matrix listing some of the major areas covered by Mr. Leidich's presentation, with ac-companying record citations. The matrix summarize,s by quarter the number of applicant audits, applicant and Comstock stop work orders, and NRC inspections in the electrical area, and records Comstock QA and craft levels, and selected electrical construction completion levels discussed by Mr. Leidich. Although Mr. Leidich's presentation was pre-( pued o:a short notice, it provided relevant information that we believe' adds we,ight to applica $t's and staff's other testimony. As the matrix i 49 g : 20 24. The staft's ecsumony discussed the apphcant's "seir4niusted" Insutute of Nuclear f Power operauens alNPot evaluaucn. ohich found appli6 ant's QA overview program to.be sat sfactory. i /4 at 24,26. At the hrasing Mr. r.delman entiairies the scope cr the INPo review. which evaluated ap. phcant's QA pregram as weu as other areas of the project. Applicant entered INPo QA findings on apph. l cant's AR ' racking systsm,o assi.rs piover closetu' or the programmater, and procedura; rendags in the R eport. Tr. 1260-45.14004e.1485 84,(Weiman). j 7' Konklin. er al. Tesumony at10 14. 25 25, il sections Ill.8, IV ard V 1/rs. rocus on the specific apphcauon of the prograe* with respect to Comstock. } 72 Edelman/Leidsch Tesumony at 26 32. 73 Tt.1006 08 (soord). 76 7t.1489-1551 (Leedsch). 3 75Tr.1490 (soard). e y e 1381 I l m.- -~-~~--=-..*,-+.**.--e ~a <~ v w'- l L-

reflects, Mr. Leidich documented frequent applicant audits and NRC in-spections of the electrical area before and after the staf1's 198182 investigation. As of September 1981 U.c., just prior to the commence-ment of the NRC's 1981 82 investigation), applicant had already con-ducted forty six audits of Comstock. After the initial preparation, in 1974 and 1975, of the specification for the electrical work at Perry, including an " attachment specification" de-scribing electrical QA requirements, applicant in 1976 prepared a pro-spective bidders list with input from applicant's QA Department. Appli- cant held meetings with prospective bidders in 1976 ' nd early 1977, and p, t a estblished a qualified bidders list in March 1977. Later in 1977 applicant c*nducted contractor interviews and site visits and reviewed contractor prcposals. In October 1977 applicant conducted a pre-award QA survey cf Comstock at Comstock's corporate headquarters, and at the Fermi 2 nuclear site in Michigan where Comstock was performing electrical work, including quality assurance." Applicant awarded Comstock the. electrical contract in November 1977.78 Applicant's post-award QA review of Comstock procedures began in December 1977. Detween December 1977 and October 1978, applicant and Comstock.',< eloped Comstock's program and procedures. No safety related estallation work was performed during this period." Ap-plicant's February 1978 stop work order had no' direct effect on'Com-stock since Comstock was not performing work in the field; however, ap-plicant did upgrade the electrical QA attachment specification as part of applicant's overall corrective action program following the stop work order.80 In October 1978. Comstock commenced its first safety related activity with the installation of duct banks and manholes.8' As summarized in ap-plicant's prefiled testimony, safety related work, performed.until mid-1980 in. the electrical area was primarily underground cable ductwork, cable tray hanger installation, and field placement of equipment. Few complex electrical inste;1ations were completed during this period. For example, less than 1% of the safety related conduit had beta installed as of mid-1980.82 'o Tr 1539 (Leadich)- "Tr 1:46,149193 (Leidich). ?: oris nally, Comstock was to perform the electrical and QA work. ared the m40f part of the construe. tion as part of a joint wenture. rhe Jomt venture was dissobed in med.1900. See EJetman/Leidech Tes. timony at 25 26. r._ M Tr.1493 90 (Leidich). so Tr.1495 (Edelman). 83 Tr.149198 (Leidich). s2 Edelman/LeidschTestimony. Attachment A. 1382 - +-- = a + %e-e + F 4 4 e 8 b e. J 3 % ' 4

Mr. Leidich's presentation provided details which demonstrated to the Board that applicant was providing close QA overview of Comstock's activities during this 1978-1980 period.8) In 1979 alone, applicant con-ducted thirteen audits of Comstock covering numerous aspects of Com-stock's program.84 This suggests to the Board close involvement in Com- - ] stock's activities by applicant. In 1978, 1979, and the first half of 1980, applicant was identifying deficiencies and achieving corrective action 't with regard to Comstock's QC staffing, electrical cable separation i criteria, timeliness of audit closeouts, the need for procedure clarifications,,and other areas.85 The evidence indicates that applicant.. was adequately aware of Comstock's activities during this period. Applicant testified that as the more complex electrical installation work increased in he last half of 1980, applicant shifted the emphasis of its QA' overview fram program and procedure development and review, .to surveillance of procedure implementation and field installation activities. During this time, applicant documented Comstock conduit in-stallatiori problem.; and took corrective action. Comstock increased and better defined its in process inspections, and applicant stepped up its in-stallation surveillance.86 With the benefit of this intensified QA/QC effort, applicant identified a trend of Comstock misinterpretations of ' ~ drawings and specifications and directed corrective action, including in-creased craft training.8' In September 1980, as a result of an internal CAR, Comstock began an extensive program for ugigraded craft training, which has continued to the present. Also in the last half of 1980, applicant continued to press Comstock to. increase its QA/QC staffing.for upcoming work.88 In Octo- ~ ber 1980,8' applicant met with the President of Comstock and discussed - the importance of hiring additional QA/QC staff." Mr. Leidich testified that there was a substantial industry shortage of qualified ' electrical. inspectors'iri 1980 and 1981, and that Comstock was actively recruiting ~ ~ for inspectcrs during that period.'8 Irt November 1980, applicant partici-rated iri Comstock craft unining sdssions. In December, applicant audit- - 83 Tr.14971510 (Leidsch). 64 Tr.1500 06 (Leidich). as Tr.14971512 (Leidich). se Ede! mar /Leidsc'i Testimony at 27. 8714 at 27 23. 88 Mr. LeiJich res.ifica.hst alth%th t"te.n pe tor / cran nat'es were satisfactory in late 1980 and early 1981 applicant was "trying to get ti.e contrar'or out in front or the installation" in anticapation or 1981 installation acuvities. Tr.151213.1519 0 eidich). 3et Tr.1620 (williams). 8' Memorandum and Order (Concerning scheduling), ftptember 16,1982 (unpublished) ' at 3; Tr.. i 1868 4 2. i

1. Tr.1511 13 (Leidich).

'l Tr.151314,152122 (Leidich); Edelman/Leidich Testimony at 28. See Tr.1645 46,-1855 56 (williams).

8. '

'I 1

• i j

I 1383 .,.....- m s _ -.~ e i j . o 4 8 5 C g, e .m, y a4,

5 ed Comstock's craft training program and identified areas for improvement.'2 Comstock did increase its QA/QC staff throughout 1981 in response to CEl's requests; in addition, applicant increased its field surveillance and conducted additional audits of Comstock's surveillance activities and nonconformance system. Mr. Leidich discussed ten applicant audits of Comstock that were conducted in 1981 prior to the commertement of the NRC's 1981-82 investigation. In addition to addressing Com-stock's surveillance and NR system, applicant's audits of Comstock reviewed such areas as inspector qualifications, certifications and training; Comstock internal auditing; corrective action documentation; craft training; and the overall implementation of Comstock's QA program. Applicant was identifying procedural deficiencies, and correc-tive action was being implemented.') Based on the foregoing, the Board concludes that applicant's QA pro-gram was actively overviewing Comstock's.QA program for the period prior to the commencement of the NRC Staft's 1981-82 investigation. Applicant was identifying deficiencies and requiring appropriate correc-tive action. 'Almost all the deficiencies appear to be procedural and not to be significant construction errors. Applicant apparently reported to the NRC and adopted appropriate remedial actions for each instance where items of potential safety significance were detected. - 4 Although intervenors had an opportunity to undertake b' road discovery and to cross-examine applicant on its testimony, they have not raised i any doubts about the handling of individual deficiencies and have given no specific reasons for doubting the adequacy of the overall pattern of quality assurance activities. There is no reason to believe that the quality assurance program ever was inadequate to detect and correct unsafe conditions. In November 1981, applicant ordered-that Comstock stop safety- ~ related cable pulling. Applicant's witnesses testified that the stop work notification was isnled because of the accumulation of Comstock pro-cedurel def;ciencies and becaus: ef concerns raised by a joint NRC/CEI observation at t!'.e beginning of safety-related power duct bank cable a2Tr.15141: (Leidi6 h). ')Tr.1518 27 Q cidwh); Edelman/Leechch Testimony at 29. In August 1981, at the beginning of its &sble tertniaauos ac*iviacs, Cc,rmtrsk hself issued several internal stop work orders as a result of pro. ' l c., cadural(ifrecuhics with the terminations. Tr.1525 (Leidich). Applicant riled 10 CJ.R. i 50.55(e) reports in January 1980 (cable tray and conduit hanger gusset pt; tis). Tr. 1506 07; september 1981 (cable tray sphce boit torquing requirements).Tr. 1525-26; ocio. ber 1981 (cable tray mounting devices). Tr.1527; and December 1981 (attachment welds on safety. ~ related switchgear).Tr. 1528 29 (Leidich);see Tr. 1543 44 (Leidsch). 3 1384 5 + 6 l K P 4

• 9

1 pulling." Applicant required Comstock to review thoroughly its safety-related cable-pulling program and procedures before it lifted the stop work order in January 1982." Applicant subsequentlyissued stop woric notifications against Comstock in December 1981, regarding electrical terminations; in February 1982, regarding techniques for nondestructive-i l ly examining welds; and in March 1982, regarding potential flammability of motor control center materials." Mr. Leidich discussed twenty applicant audits of Comstock in 1982. These covered a variety of areas, such as cable tray and conduit installation; raceway separation criteria; corrective actions on cable l . pulling; document control;~ storage and maintenance; applicant's annual 18 criteria audit under 10 C.F.R. Part 50, Appendix B criteria; and a follow-up audit to the 18-criteria audit. In addition, applicant issued I five corrective action requests to Comstock during 1982." i In 1982 applicant also established a hold point for closeouts of all Comstock NRs,'" requiring Comstock, prior to closing out any NR, to formally notify applicant QA/QC personnel, who would then review the proposed closeout. 't In June 1982, as part of Comstock's significant steps to upgrade training, Comstock held craft training workshops in cordunction with the National Electrical Contractors Association and the International Brotherhood of Electrical Workers. The workshops empha-sized conduit installation and cable-pulling requirements and reviewed applicable QA requirements.102 Between January 1981 and July,1982 Comstock gave approximately 15,000 person-hours of training to its craft and QA/QC personnel.302 Applicant's QA overview continued on an intensive basis in early 19,83. ** The Board concludes *nat applicant conducted an intensive.QA over-view of Comstock from late 1981 through early 1983, and that applicant i adequately controlled Comstock's work. Applicant conducted a steady ~ ~ stleam of reviews, including at least 25 audits; and took s:gnificant cor- . rective. action steps during this period,. including issuing 4 stop wo:k notifications against Comstock. There is evidence demonstrating that Comstock undertook major corrective action in response to applicant's " Edeltran/Lettic'a Tesiimony as 29; Tr.15??-23 (Leidich). t Edelman/Leidsch Testimo* y at 29. Tr.1532 (i.eMich). 97Tr. t529.1532,1534 35 (LeiJichi. 9:Tr.1534-41 (Leidich). I "Tr.1532 33,1535.1538 39 (Leidich). 1" Tr.1540 (Leidich). 3M.See Tr.1085 (Leidich). 102Edelman/Leutich Testimony at 32; Tr.1537 (Leidich). 103Edelman/Leidich Tesumony at 28; Tr.1538 (Leidich). 104Tr.1541-42 (Leidsch). j 1385 i 1 l i _, _ _ _._

involvement, particularly in the area of QA/QC staffing, and QA/QC end craft training. We note that Comstock's QA/QC staff almost doubled in this period, and that the current ratio of craft to QA/QC is ap-proximately 3 to 1, which indicates close Comstock QA/QC coverage of the work in progress.* III. TIMELINESS OF CORRECTIVE ACTION The Board received evidence concerning the closeouts of NRs, ARs and C'ARs'. This was an' item'of initial concern to us iri light of state-ments in Report No. 81-19 and the July 13, 1982 NRC SALP Report which suggested that electrical problems at Perry were not being prompt-ly identified and corrected. Preliminary findings from the StalTs 1982 SALP Report stated: Taken individually these findings may not represent major problems, but collectively they reveal deficiencies in the implementation of the quality assurance program in that problems are not identi ied and corrected m a timelv manner. '# f Thereafter, the Staff's September 27, 1982 letter transmitting Report No. 81-19 to applicant stated: We are concerned that even though your continuing assessment of the electrical contractor's performance showed degradation of the quality assurance program, you failed to investigare in a prompt manner the elements contributing to the poot per-iormance andrequire adequate correcrose acnon to upgrade the program.'M Specifically with respect to applicant's corrective action system, Report No. 81-19 at 92-93 discussed a staff review of Comstock responsiveness to applicant audit findings issued between November 1978 and Decem-ber 1981. That review disclosed "what appeared to be L.K. Comstock's poor performance in closing out applicant audit findings."2# - Applicant and staff presented extensive testimony concern'tng the timeliness of Comstock's corre:tive action in response to NRs, ARs, and CARS issued in the electrical area. With respect to nonconformances, applican'.'s prefiled testin7ony it dicated that noplicant and Comstock have issued approximately 2000 4 I y W Edelman/Leidich Testimony, Aanchment A. 1# sALP 2 Report at 7 (emphasis added). See LBP-82 Il4.16 NRC at 1916. IM Licensing Board Ex. 3. NRC lener to apphcant dated september 27,1982, at I (emphasis added). l# Licensing Board Ex. 3, Report No. 81 19, at 93. 1386 ^ F k-

1 1 NRs in the electrical area.l" Mr. Edelman testified that 240 of the NRs are still open."' NRs must be resolved before the plant can go into operation; however, applicant's practice has been to attempt to obtain i j disposition of NRs within 30 days and to track the status of all noncon-i forming conditions open longer than 30 days."I Mr.- Edelman testified that the timeliness of corrective action imple-i i mentation depends, in part, on factors such as the type and phase of con-l struction in the area and the projected time for turnover of the item i involved."2 Mr. E,delman stated that the most important QA considera-tion with respect to open NRs is to have an adequate system to track and identify the status of every NR, and that applicant's NR tracking system accomplishes that purpose."3 Mr. Edelman also presented uncon-tradicted testilaony that applicant's reviews and audits have not identi-fled an undue delay in the closeout of NRs."' No timeliness problems in connection with the closeouts of NRs were i [ cited by staff witnesses. Mr. Konklin testified that in order to apply the timeliness requirements of 10 C.F.R. Part 50, Appendix B, Criteria t XVI, a judgment must be made based on a number of considerations, such as the type of item, the significance of the deficiency, the stage of construction, whether the item would become inaccessible due to con-struction in the near future, and the hold points that might be involved - in the work.us Mr. Maxwell testified that IEEE-336 requires applicant to 3 resolve unsatisfactory conditions before operating'a system."6 Based on tlie evidence, it is clear to the Board that th'e closcout of 1 NRs has not been a problem. The intervenors have not raised any'seri-ous doubts about the adequacy of the closeout systems. The Board is en-tirely satisfied that applicant's system is closely tracking the status of, NRs at Perry, and that nonconformances are being properly closed out: in a manner consistent with their safety significance. The Board snd intetvenors also inquired extensively into whether Cemstock has corre'cted, applicant ARs ar.a CARS on'a timely basis."7 h i 109 cdctman/Leidsch Testimony at 20, t10Tr. L356-57 Ede'rsan). ill Tr.1162 43 Edelmtn). The 3'Niay time for "dispositun" refers to review by the desegn entineer j and a deciron as u.be app *og*iate type of cor ective ao on to I a implemenad ratter than to the con-tractor s fnal Arnriementation of tre speevied cor ect4e anon. Tr 186749 Edelman). 112 a r.1163 64 Edelina st 133 Tr.1161-64 Edeter.an). ' II* Tr.1164 66,1164-69 Edelman). l ll3Tr.15% (Konklin). - lie n.1597 (Manwet0. !!7ARs and CARS involve procedural or programmatic deGciencies not involving plant " hardware

• A CAR is essentially an escalated AR. See note 47. savnr. Tr.1279 (Leidich); Tr. 1312-14 (Board); and i

Tr.1371 Edelman). is j i l ~ 8 I', , i 1387 i 1 - t, i_.. _. _. _ _ _ _.a-,, _ _, _. _, ~. l 1-4 + 1 5 g t

3 At the hearing, Sunflower's representative and the Board asked appli-cant's witnesses to address the statements in Report No. 81-19 regarding Comstock's apparent lack of timeliness in responding to applicant audit findings."8 Messrs. Edelman and Leidich agreed with the Staff's finding at 93 of Report No. 81-19 that there were excessive open ARs against Comstock as of the time the staffs review was conducted."' However, rpplicant had issued a number of CARS and an SWN to Comstock for tick of responsiveness to applicant audit findings.828 Mr. Edelman and Mr. Leidich also testified that applicant had recognized underlying prob-lems such as Comstock's QA/QC staffing and: training, and that applicant. took significant steps to addr'ess these areas.i21 We have previously concluded that a significant improvement in Comstock QA/QC staffing and training has indeed been accomplished.522 Mr. Leidich testified that applicant saw improvements in some areas covered by its audit findings and that in other areas there were lingering problems.i:2 Mr. Edelman testified that applicant continues to take any action (e.g., upgrading an AR.to a CAR or issuing a SWN) it believes is required to get responsive-ness from the contractor.'2' The uncontradicted evidence is that open ARs and CARS are not a current problem with respect to Comstock. 25 Applicant's prefiled tes-timony stated that applicant has issued 267 ARs against Comstock.326 Al-though there was no evidence as to the precise number of current open ' ARs, Mr. Leidich testified that the long-standing " problem" ARs against Comstock have now.bcen closed out' As to CARS, as of the time of the hearing, applicant had issued eighteen CARS against Comstock. Only two of these (both of which were issued in 1983) remained open as of the hearing.127 Since the time of the NRC's 1981 82 investigation, ap-plicant has requested Comstock to respond to all'ARs and CARS within live da>s with an appropriate plan and resrJnse schedule, which Com-i stock has done.82' lis Tr.1278 (Licenses Board);Tt IJ63 (H btardt. ~ 11'Tr.1278 79.136344 (Le&M. Tr.1371 (Edelman). 120Tr.1371 (Edelman). See Tr. 130811. l'i07 (March 1980 CAR); Tr.1527 (November 19f t sWN). Tr.1535 f AprilJ98: CAR); Tr.137415.1538 (Augurt 1982 CAR) (Leid*cM. 12t Tr.1272 79 (Edeltran/LedcM, pp. 1383 84, spra. i 122 Pages l'85-16. apre: see Tr. I369 70 (Leidich). l-a22 Tr.1279 (L endsh). 124 Tr.1371 (Edctman). Sec. e.g.. Edelman/Leidich Testimony at 33 (disctdsing applicant's responses to Comstock's rinal inspection backlog). 125Tr.136648 (Leidich). 12* Edelman/Leidich Testimony at 21. 127Tr.186748 (silber 8). 12e Tr.1375 76 (Leidich). E 1388 i i ..~ - -,. 4 9 S a gr. 4 0

i t ^! s There was testimony by applicant that the acceptable time for closing out ARs depends again on the circumstances.12' The Board agrees. The ? fact that an AR is still open does not necessarily mean the contractor has taken no action. Applicant may still be reviewing the contractor's response, or applicant may have a concern over a particular aspect of the l response.8M Further, the mere existence of an open AR cannot be equat - 5 ed to a safety problem. These matters must be examined in context. We t would be concerned if it appeared that applicant was not adequately monitoring the safety significance 38 and status of ARs; however, the record indicates otherwise. Applicant's procedural system,132 and its use of this system to correct problems, in our view reflect a proper. degree of involvement and control. Intervenors have not indicated any evidence that casts doubt on this conclusion. Two overall conclusions follow from the evidence. First, applicant's NR system has achieved the timely identification and correction of non-conforming conditions in the electrical area. Physical conditions ot' potential safety consequence are being identified and corrected under the formal NR system. Second, applicant's AR/ CAR system has also achieved the proper degree of corrective action. ARs have been identify-ing procedural and programmatic deficiencies as they have arisen. Al-though Comstock'has not always fully addressed applicant's ARs on a ~ timely basis, when tardine'ss has occurred applicant has escalated ARs to i CARS to resolve the issue at hand.' Applicant created the' CAR system for just such a purpose. At the hearing it did not appear to the Board that AR/ CAR escalation has been improper or gives rise to any safety concrns.133 Applicant has not hesitated to use CARS, or SWNs, when such escalated corrective. action has been appropriate. Moreovei,'there . is no evidence that failures by Comstock to address applicant' ARs on a timely basis have resulted in unsafe conditions at the plant. t* IV. SIGNIFICANCE OF REPORT NO. 8119 FINDINGS l Report No. 81-19 indicates that on October 27, 1981, Individual A - made six rJlegations to Region III concerning specific aspects of Com-stock's activities at Perry. The individual asserted that electrical inspec-tors had been " intimidated" during a rr.eeting, and also alleged that cer - I2' Tr. I290-91 (Leidich). l IM TT.1391.1394 (Edelman). 133 Tr.1313 (Board). 132See note 46 swre. 3 1 Tr. L314 (Boent). t - 1389 i r l L 4 h t 9 A k. e e i- - v w P +

t trin procedural violations had occurred in the areas of conduit installation, cable pulling, electrical penetrations, and motor control - center storage.u' The staff conducted a thorough invgstigation and did not substantiate Individual A's allegations. ~ Because of the staff's overall responsibility for overseeing the quality of construction, its investigation of allegations about Comstock was ex-panded into a detailed inspection of electrical hardware procurement, drawing control, electrical cable tray installation, electrical and instru-mentation hanger installation, and installed switchgear. Between October 27, 1981 and March 19, 1982, six staff representatives spent a total of - 1 711 hoursus on the staffs investigation and inspection of the electrical area.3" In the course of its inspections the staff identified nine items of noncompliance ? and a number of unresolved or open issues.*The u noncompliar.ces, most of which were procedural,u were assigned com- - paratively low (Level IV or V) severity levels.U' The inspections identi- ' fled no significant " hardware"' deficiencies. The staff concluded that the noncompliances did not merit a monetary penalty.'" The staffs testimony at the hearing was that the electrical construction difficulties identified at Perry "are not very unusual" within Region III. Mr. Williams noted in' response to a Board inquiry that nuclear electrical work is "particularly complex," that there are "many attributes that require insp'ection," and t' hat "there are many opportunities.for error to occur."842 His overall assessment was that, considering the l extent of the areas examined,.the items of noncompliance reflected in Report No. 81-19 involved " perturbations within what was essentially a sound system."'*3 While in the earlier stage of the investigation the staff - raised questions concerning Comstock, and urged applicant to stop Com-stock's cable pulling activities, the staff ultimately found that "the great majority of t'he documentation and the effort was acceptable."i*' 134 Board Ex. 3. Report No. 81;19. at 6-29. 135 Based on our familianty with other staff.ns estigad ens ar d u spcotons, and cri the staffs rigu es con. cerning the total ifispector hours expended to da;e at Perrv. wt conclak saat the Coms ock invesusanon represented a si niricant commitment of the staft's time anJ resources. This is relevant in measuring 6 the sigMcance of;V s:aifs rendings, since me w%la nctrra!?) expect a's ir.sestigation of this magnitude to identify at lease some areas of der 9ciencies. Id Board En. 3. Report No. 81 19, at 2. Sec Konklin, er at. Tesumony at 12. U7 aoard Ex. 3. Notice of Viola' ion. 08/d;See Konkhn,eral.Tesumony5: 1213; tdecarthdich Tes:.: nom at M 13' Board Ex. 3, Nonce of Violanon. Konklin, ci at. Tesumony u 13; Tr.1812 13 (williams). 88Tr.1774 (williams);see Tr.18*718 twi' hams). 143 Tr.1794 (Konkhn and withams); see note 66, supre. 142 Tr.1795 (Williams). 143 Tr.1699 (Williams). 144/d 1390 ~ b Y e-4 y 9' I am I _'

- -.. _ _ _ _ _.. _. ~ _.. _ _ _ _ i 1 i i i 1 l We do not believe, based on our review of Report No. 81-19 and the uncontradicted evidence presented at the hearing, that the noncompli-l ances in the Notice of Violation raise serious safety concerns. We in-quired about cable separation criteria violations (there were eight found by the Staf0 and learned that such violations are not uncommon. Mr. . j Leidich, who is quite familiar with the IEEE standards and industry prac-tice in this regard,845 testified ~ that "[ilt is clearly not unusual to see that i kind of situation, not only at the Perry project but at any project in the United States." a Mr. Williams confirmed Mr. Leidich's explanation 4 and conclusions. He stated that "[tlhe experiences ~ at Perry in the area of electrical separation have not been unlike those that we have had at every other site in tiie region over the last 13 years ~that I have been in Region III." Mr. Williams testified that he was "certain that most of the work was done correctly."t*' Similar testimony was given rega'rding-the cable pulling pr,ogram. The Board asked whether there was any. reason to believe that cable pulls were completed by Comstock without adequat'e testing. Mr. Williams re-plied that the chance was "very, very small, ifin fact it existed at all."'48 Mr. Leidich testified, without contradiction, that cable over tensioning i is not uncommon, particularly where cable is being pulled around a bend.t" The Board discussed with staff witnesses the various procedures used for testing safety-related cable, and inquired into the engineering, 4 2 reviews and dispositions that have been used at Perry when cable over. t'ensioning has occurred. We were particularly interested in use-as-is and scrap disposition's. The staff testified that it closely reviews us'e-as-is dispositions." Mr. Gildner described an instance in which a large safety-related cable had been over-tensioned. Although it pa' sed subsequent s engineering tests,'it was nevertheless scrapped. Mr. Gildner's conclusion l j from tnis and siinilar episodes wr.s that "this Licensee does tend to take the conservative approach." I, We reviewed with wi,tnesses the sequence leading to applicant's November 1981 SWN against Comstock's cable-pu; ling program, dis-a cussed at 13-15 of Report No. 81-19. Applicant's lead electricai QE, and. Region 111 personnel, were jointly observing a duct bank cable pull. They noted deficiencies in the procedures being followed, and applicant 4 issued an SWN which required Comstock to complately review its. cable l 3'5 Tr.1544 51 (Leidich); pp. 137172 apre. 146 Tr.1549 (i.eidich). 147 Tr. M47 54 (williams). 148 Tr.1632 f 5oard, withems). i 3# Tr.1354 (Leidsch) ',158 Tr.1633 44 (Board. withems. Maxwell). i l t e + t i I 1391 ~ I ~ l y I s., s-4. 7 P' 8-4-- -r

procedure.858 Although we do not take lightly the mistakes Comstock made,852 at the same time we recognize that the incident occurred at the beg ning of a new phase of Comstock's work - power cable pulling thwagh safety related duct banks.is) These w'ere not recurring problems. The Board concludes that applicant's QA/QC personnel and the staff jointly identified Comstock's difficulties, including both inspection and craft training deficiencies, at the beginning of the work activity. This in-dicates that applicant was controlling its contractor and was receptive to staff suggestions. The fact that the staff was also present does not cause us to draw adverse inferences 'regarding applicant's overview. of Comstock.i34 Inquiry by the Board into other technical areas discussed in Report No. 81-19 also failed to disclose serious problems. Mr. Williams testified that noncompliance 5(a)(2) of the Notice of Violation, involving motor control centers, was a procedural problem, " easily corrected," and not surprising. The staff finds " problems like this one at all of our plants chen they are at this stage of construction."i35 One of the NRC non-compliance findings,2(a),3% relating to an alleged violation of the 270* conduit bend criterion, epparently, involved an error ofinterpretation on the part of the staff.85' in our review of Report No. 81-19 prior to the hearing, we were partic, ularly concerned over statements 'at 94-95, to the effect that 'applicarit ' had failed to exercise overview and control of Comstock in 1981, and that "CEI had failed to identify the findings of this investigation inde-pendent of the NRC." The staff's conclusion in R,eport No. 8119 was based on its review of various applicant overview documents showing repeated months of below-standard performance by Comstock in 1981.in We stated, at the summary disposition stage, that we could draw no mecnirigful inferences from applicant's below standard ratings 'of Com-stock without a better understandirg of applicant's overview program and its implementation. In light of our findings an'd conclusions regard-ing applicant's and Comstock's programs, set forth in previous sections of this opinion, we no longer retain a serious concern. In a more perfect world, problems be:veen a licensee and a contractor would be more quickly remed.ed. However, we have no reason to believe that there are 15t ?rt pp.1384 85. surra 132 Tr 1661 (Board. williams). 153 Tr.1276.1283. 154 Tr.1659 60 (william 4). 155Tr.16951701 (Williams). 3% Board Ex. 3. No: ice orViolation at 2. 157Tr.1668.1778 (williams). 15s BoarJ Ex. 3. Report No. 81 19. at 95. { 4 1392 k 5 - ) i 9

l 4 1: any safety problems at. Perry as the result of this less than desirable l petiod for correction. Consequently, we conclude applicant's overview and control of Comstock prior to the StafTs 1981 82 investigation was adequate. Although the Stati has indicated in Report No. 31 19 and SALP 2, as well as in testimony,u' that Comstock's problems seemed und'aly persistent, applicant in its performance ratings of Comstock and i its stepped up audits and surveillance of the contractor, recognized the + problems and took adequate corrective action, j' Applicant's and stalTs prefiled testimony set forth persuasive evidence concerning applicant's positive attitude and actions in responding to the i findings of the staffs 1981 82 investigation. Mr. Williams testified that "in nearly every instance, in fact all instances that I can ' recall, an 3 j appropriate corrective action was initiated upon notification by me and/or my inspectors on site."ie' lie also testified in response to a ques. 4 ] tien from OCRE's representative regarding the February 10.1982 meet-ing bJtween applicant and Region til on preliminary findings from the n-j Staffs investigat' ion, that ^11.c Licensee's - I suppose we are'ealking about his attitude,if you will, was ons of wperation. He demonstrated professional competence. He demonstrated general willingness to get on with correcting the issues that we mutually agreed needed corremng. He demonstrated a willingness to assist the regulator, to the estent that it was possible,in esta'ohshins the status of his activities and by that I simply mean, j. they were willing tu prmide til records and as many bodies as anc need to track " 2hrou'sh their syst:m to get 'tungs in order, j As I have indicated before - and perhaps others of this panel haie been'a tenefactor or dx to the estent they allowad you to conic. onto the site and plow ti tout?, all of the records -. it is an open book. By my espnierde, and t partiopeted j in a nunther of these, that rarely happens.'*3 l The Board cencludes from the foregoing that the staffs 198182 in-l i i vestigatica and itispection: dischstd no seriout 'insdequacies in appli. j . cant's QA/QC overview a id contr'ol of Comstock. The noncomplit.ncts 2 the staff found werc largely procedural. None revealcd unsafe conditions J j in the efectrical area. Many of the difficulties were associated with the ( tirst phase' of a major new work activity, where " start up" defklencies l b ik .may e more l i.ly, i ~ Most of tne staff's firedhas repr:sonted problems that are seca at j other ngclear niants at si.nilar stages of construction.^ Moreover, the - i a 1 tse 5,,,*,s. Tr.162344,1656.1817 (withemd. j l*8See a.s.. Edsoman/t.e+ dish Teenmony at 30 31. Konkha, er et. T+stimony at 15 20. lol Tr.1:37 (ws. emot T lal gg,176,.73 (wigg6 emet 5,, yr, 336142 (Geldnert l t i 1393 i j .- ~ - d -,.,-..+ -.., -...,-.. * ' % wm - 2______. q .,e.~.-...c g I L n 9 4 88 ..r d..,"

N-stall's investigation and inspections wer: broad in scope and did not, Lonsidering their extent, find a disproportionate number of noncom-pliances. Of the noncompliances found, all were of a relatively low severity level. Applicant's and Comstock's corrective actions were re-sponsive to the raff findings, sometimes exceeding the strict bounds of the staff's findings. In short, applicant has withstood not only the Staf1's thoroughgoing s:rutir.y. but our ov.n. V. MISCELLANEOUS - ISSUANCE OF PARTIAL, j INITIAL DECISION The Board has determined that this Partial Initial Decision should be issued prior to the completion of evidentiary hearings on other issues and that the Partial Initial Decision should be made immediately effec-tive for purposes of appellate review. The Board's authority in this regard is based 'on the NRC's Rules of Practice. Appendix A to 10 C.F.R. Part 2 authorizes the Board to hear issues separately and issue separate decisions in those separate hearings. 1he Commission or the Atomic Safety and Licensing Board may consider on their own initiative, or,a party may request the Commission or the board to consider, a particular issue or issues separately from, and prior to, other issues relating to the effect of the construction and/or operation of the facility upon the public health and safety, the common defense and security, and the environment or in regard lo' anti-trust considerations. If the Commission or the board determines that a separate heais.ig should be held, the notice of hearms or other appropriate notice will state the tiri e and place of the separate hearing on such issue or issues. The board devgnated to conduct the hearnng well ossue an snurral decssoon, if dermed approprate, absch wdl be est/io srive of the essse(s) conssdered at the hearing, in the absence of an appeal or Commission or Appeal Board raview pwsaant to il 2.760 and 2.762, o: fore the Naring on, and (onderation of. the re-nainin6 issues in the proceeding.i The Appeal Board has neid that a licensing board action is appealable if it " disposes of at least maior segment of the case."8" There can be no dispute that Issue #3 is a r.3r segmen', of the case. 10310 C.F R. Part 2 App. A,{ l(c)(l) (emphasts addedL id Tekan E,tison Co. (Davis-Besse Nuclear Power stauon), ALAB.300,2 NRC 752,758 (1973). See aho, souronsa Ekrtre Powe Ce treint Beuti buclear Plant. Unit I), ALAB.696,16 NRC 1245,1256 (1982) Louissna Po.cr A La$i Co. (Waterford steam Electne station. Unit 3), ALAB-o90.16 NRC 89). 894 tl982); Nastkar Easmeertet Co. (sheffield, Illinois, Low Level Radioactive Waste Disposal site), ALAB-606,12 NRC 156,160 t193m. 1394

i l I Licensing boards in other proceedings have routinely made partialini-tial decisions immediately effective,165 and Appeal Boards have routinely taken jurisdiction over exceptions filed from partial initial decisions.166 While the Appeal Board might defer briefing of an appeal "so as to avoid piecemeal or concurrent review,"167 that is a choice which rests j with the Appeal Board based on its control of its docket and need not i affect this Board's actions. The Board is, of course, aware of an unpublished Appeal Board order in Consumers Power Co. (Big Rock Point Nuclear Plant), dated October j 4,1982, in which the Appeal Board stated that the Big Rock proceeding, in~ olving a spent fuel pool license application, did not appear to warrant v j more than one initial decision. Three partial initial decisions ha'd already issued and the Appeal Board anticipated more. The Appeal Board also deferred briefs on exceptions to one of the decisions and tolled the time . for filing exceptions on others. The. Big Rock order is not applicable here. Apart from'the' legal principle.that unpublished decisions are not generally to be relied upon,68 the Appeal Board in Big Rock was simply observing :Mt.in the particular facts involved, numerous partial initial decisions were not warranted. The Appeal Board recognized that " sound management of some proceedings requires the issuance of more than one initial decision" and that NRC regulations "do not preclude the is- ~ suance of partial initial decisions."16' The only criterion stated by the Appeal Board was that partial initial decisions "should dispose of a major segment of the case,"tM Since the quality as,surance issue is "a major seg-ment of Ithis] case" and since a' timely appeal decision might avoid an unnecessary delay in this proceeding should more hearings on quality assurance be necessary, we believe that a partial initial decision is ap-propriate here, l t 165 Sec. c.r., f/mos Elecerr Co. (Callaway P: ant. Unit 1), LBP-82-109,16 NRC 1826 (1982); Louisissa Powr a Light Co. (waterford steam Electric station Unit 3), LBP-82-100,16 NRC 1550 (1982); South Carolina Electric and Gas Co. (virgil C. summer Nuclear stauon, Unit I), LBP-82-55,16 NRC 225 a (1982); Southern Califoram Edison Co. (san onofre Nuclear Generating station, Units 2 and 3),' LBP-82-3,15 NRC 61 (1982). ) 166 See, e.g., Philadelphw Electre Co. (Limerick Generating station Units I and 2), ALAB-726,17 NRC 755 (1983); Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-725,17 NRC 562 i (1983). l l'7Limerrk, supra,17 NRC at 759 n.9. { 16sPacific Gas and Electre Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-592,11 i NRC 744,745 (1980) See also Cmcmmasi Gas and Electric Co. (wm. H. Zimmer Nuclear Power station. Unit I) LBP.82-47,15 NRC 1538,1547 (1982) (unpublished order given no weight). 16' Order at 2. .L

'" M I

1395 l k i t i!m_ .-maa+- m.. .--ower..a-. w oe e.-.=* ~ - - -+v+ ~ ~ > -v*-. --e~~ ~-*~em*A+~**I i a S

VI. CONCLUSION The uncontradicted evidence is that applicant's quality assurance pro-gr-m has provided adequate overview and control of Comstock's activi-ties at Perry, and that applicant's program has prevented, and will con-tinue to prevent, unsafe conditions at the plant. We therefore conclude that there is no serious safety issue that requires us to undertake further inquiry into applicant's QA control of Comstock or other safety-related contracters at Perry. ORDER For all the foregoing reasons and based on consideration of the intire rrcord in this matter, it is, this 2nd day of December 1983, ORDERED

1. The sole remaining issues of material fact admitted under issue 03 in this proceeding, concerning the adequacy of applicant's quality assurance program for the control of safety-related contractors at Perry, are found to be without merit and are dismissed.

2. Pursuant to 10 C.F.R. j 2.760(a) this is a partial initial decision that will constitute final action of the Commission forty five,(45) days from the date of issuance unless exceptions are taken" pursuant to 2 $ 2.762 or the Commission directs that the record be certified to it. 3. Exceptions to this decision or designated portions thereof may be filed with the Commission, in the form required by J 2'762(a), within ten (10) days after service of this decision. 4. To pursue an appeal, briefs in support of a party's objection also must be filed, within thirty (30) days after filing the exceptions (or forty days in the case of the. staff of the Nuclear Regulatory Commission). The brief must comply with the requirements ofl 2.762. 5. Within thirty (30) days of the service of the brief of the appellant (40 days for the staf0, parties may file opposing or supporting briefs or supporting briefs that comply with the requirements of 6 2.762(c). ? ? 1396 I 4 4

_.. - ~ - - I 6. Filings that do not comply with the rules governing appeals may be stricken. THE ATOMICSAFETY AND LICENSING BOARD l t .i Peter B. Bloch, Chairman ADMINISTRATIVE JUDGF i i Jerry R. Kline + ADMINISTRATIVE JUDGE Glenn O. Bright ADMINISTRATIVE JUDGE Bethesda, Maryland k b a b e D 5 i s J i i j e-I 1397 I.. _.. _. _. _ _ + r t

Cite as 18 NRC 1398 (1983) LBP 83-78 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: John F. Wolf, Chairman Frank F. Hooper Gustave A. Linenberger, Jr. In the Matter of Docket Nos. STN 50-522 STN 50 523 (ASLBP No. 75-279-08-CP) PUGET SOUND POWER AND LIGHT COMPANY,'et al. (Skagit/Hanford Nuclear Power l Project, Units 1 and 2) December 13,1983 The Licensing Bot.rd grants Applicants' motion to withdraw their ap-plication and termina.te the proceedings. 4 MEMORANDUM AND ORDER Under the date of November 23, 1983, the Applica% (Puget Sound Power and Light Company, Portland General Electric Company, Pacific Power and Light Company, and the Washington Water Power Company) filed a Withdrawal'of Application in the above entitled pro-cceding and a Motion for Order Approving Withdrawal of Applic'ation and Terminating Proceeding'. In a letter, dated November 23, 1983, Mr. Robert V. Myers, Vice President, Engineering Operations, Puget Sound Power and Light Company, advised Mr. Nicholas D. Lewis, Chairman, Energy Facility 1398 i 9 I

I Site Evaluation Council, 4224 Sixth Avenue, S.E., PY-ll, Olympia, Washington 98504, that "our application no. 81-1 for the Skagit/Haliford Nuclear Project is hereby withdrawn.. " { Chairman Lewis, of the Energy Facility Site Evaluatio' Council, in a n telephone conference. has advised this Board that the Council has re-ceived the Notice of Withdrawal of the Application for Site Certification No. 81-1 by Puget Sound Power and Light Company, et al., and will i process it in accordance with its regulations. The NRC Staffin responding to the Applicants' request for withdrawal of the construction permit application and termination of the proceedings stated in part: There is no apparent problem with respect to site restoration at the Skagit/Hanford site. The land in question is owned by the Department of Energy (DOE), and the i Applicant has an agreement with DOE as to the manner in which the land will be 1 restored. The only work the Applicant performed alTecting this land was the digging of certain exploratory trenches and wells. Where DOE does not have a use for these excavations, they are being back filled. This work is expected to be completed by February 1984. None of the parties, save the NRC Staff, has responded to the Appli-cants' Motion for an order approving the withdrawal and termination of the proceedings. There is nothing in the record to show that any party or ' the public interest will be harmed by granting this motion. Accordingly, it is ORDERED That the Applicants' motion to withdraw the application and terminate the proceedings is granted without prejudice. FOR THE ATOMIC SAFETY AND j LICENSING BOARD ) John F. Wolf, Chairman ADMINISTRATIVE JUDGE l Dated at Bethesda, Maryland, I tr.L-13th day of December 1983. i t i ( i' 1399 i l l F I l' I

Cite as 18 NRC 1400 (1983) LBP-83-79 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Peter B. Bloch, Chairman Dr. Jerry R. Kline Mr. Glenn O. Bright in the Matter of Docket Nos. 50-440-OL 50-441 -OL CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. (Perry Nuclear Power Plant, Units 1 & 2) December 20,1983 The Licensing Board denies intervenor's motion to reopen discovery. RULES OF PRACTICE: DISCOVERY Reasonable discovery deadlines, subject to good cause for subsequent ^ filing of discovery requests, may be established and adhered to. Delay between a deadline and a hearing is not by itself ground for generally reoreriing discovery. l l l MEMORANDUM AND ORDER (OCRE Motion to Reopen Discovery) l Ohio Citizens for Responsible Energy's (OCRE's) November 15, 1983 motion to reopen discovery is denied. 1400 w , i-n

~ __ ~ e i j This Board established fair discovery deadlines on certain admitted i issues pursuant to guidance g.ven to us by the Commission.' This is con-sistent with the introductory language in 10 C.F.R. 2.740(b), which permits discovery to be limited by Order of the Board. It also is consis-l l tent with Section 2.711, which permits the Board to reduce time limits j j when there is a good reason to c'o so. OCRE admits that "[ alt the times they were imposed, these restric-3 l } tions were reasonable."2 However, it feels that the time for hearing is i now far removed from what was originally expected and it feels that this constitutes materially changed circumstances, requiring us to rethink our ] previous restrictions.) OCRE's arguments mistake our purpose for limiting discovery. This is. potentially a very complex proceeding. New contentions may be admit-I ted for good cause at any time. Even completed decisions. of the Board may be reopened. In fact, at this very time OCRE is seeking to admit a new contention and it is also seeking to reopen the hearing record on quality' assurance. Under these circumstances, thoughtful hearing i management requires that matters that can be completed, be completed, so that they will not interfere with other matters that may arise. Another way of putting this thought is that I the purpose of a discovery cut.off date is to require a party to complete as much dis-covery as is feasible before that date. The fact that Sunflower will obtain additional information in the future will permit it to argue that it has good cause for late-filing. of interrogatories with respect to that material. providing that the information was not previously availabic to it. We will not deprive la party) of its fair opportunity to seek discovery of ma,tters not previously known to it. but that is not a reason to extend the deadline on mat-ters already known to it.' 1 We have adhered to the principle that additional; discovery, beyond ' j discovery deadlines, would be available upon a showing of good cause. I In-one ' telephone conference, in August 1982, we stated that, "[tlhe i l Board in setting a target understands that there may be good cause for exceeding these deadlines. We would not expect them to be exceeded I j. ,3 Sasannest e/Mity on Consherr o/Lwasear hocredars. CLI 818.13 NitC 452 (1981) at 4$6 states that "the boards, in consultation with the parties. Ishould) estatWish time trames ror the completion or both ~ . voluntary and involuntary descovery " i i 2 oCRE's Motion at 1. l 3.Giuen the substanuel time that has elapsed since discovery has closed, we thank it appropriate that ap. plicant Die, durins January 1984l either an update or its anecers or a statement that no update is i necessary 4 UW Memorandum and order (Concerning Request to Entend Discovery on Issue el), dated ' Osester 8.1982, as I. l t i ,e i 1401 Y l 1

without good cause.a5 In another telephone conference, in November 1982, we stated that, "[alfter considering the arguments, we have decid-cd to set a January 31 cut-off date on initial discovery requests on issues 13 through 15 subject to a showing of good cause for late filing."* Under the circumstances, we are surprised that OCRE was dissatisfied by the seven-day period we permitted for follow-up interrogatories. This is the first we have heard of the difficulty, to which we would have given a sympathetic ear had it been raised in a timely fashion. Although we are aware that discovery responses may be complex, we did not analyze OCRE's problems on these specific matters to; determine whether it n;eded more time. Had we been asked to consider the difficulty of the t3k, we would have given serious attention to the request. However, cven at this time OCRE phrases its problem in generalities, withbut reference to particular documents or the scope ofits problem of analysis end we cannot be sure from this filing whether good cause for an exten-sion of time would have existed had a timely motion been filed. OCRE's reliance on Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB 196,7 AEC 457 (1974) is entirely misplaced. The Licens-ing Board in that case did not exercise its authority to set a discovery de:dline applicable to all the parti:5. Had it set such a deadline, the un-certainty that existed in that case concerning the admission of conten-tions makes it uncertain whether a deadline prior to the preliminary herring would have been. appropriate. Furthermore, the Board granted subsequent discovery to other parties, indicating a lack of reciprocity or fairness in its actions. That case is not instructive here because our dead-lines have been reasonably set for all parties and are, and have always been, subject to exceptions for good cause. There are some possible confusions afloat which we would like to clear up. First, questions asked at a hearing must be relevant and material. A party must be able to explain,their relevance. By contrast, discovery may be used to ask questions that may lead to the discovery of relevant material. At the hearing, questions may no longer be asked merely because they may lead to the discovery of relevant material. Second, termination of discovery by a deadline does not prohibit a party from obtaining subpoenas for witnesses or documents to be produced at trial. For example, OCRE might like to assure itself that when it delves into analytical conclusions relied on by another party that witnesses will be unable to plead lack of memory but will be able to refer to th'e docu. ments from which they formed their opinions. Of course, OCRE will 8Tr.753. 6 Tr. 800-OL I 1402 i

-_..__~m. l l have to meet the standards applicable to the issuance of a subpoena and will have to be able to resist a motion to quash, as in the Zion case that OCRE cites, but it should not feel that it is precluded from seeking sub-t poenas by a discovery deadline. ORDER 4 For all the foregoing reasons and based on consideration of the entire record in this matter, it is, this 20th day of December 1983, ORDERED Ohio Cit,izens for Responsible Energy's November 15, 1983 motion to reopen discovery is denied, without prejudice to its filing discovery re-3 quests accompanied by a showing of good cause for late filing. Tile ATOhflC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman l ADhilNISTRATIVE JUDGE Jerry R. Kline ADhllNISTRATIVE JUDGE Glenn O. Bright ADMINISTRATIVE JUDGE ~ Bethesda, hfaryland 4 i f q d e 1403 +

Cite as 18 NRC 1404 (1983) LBP-83-80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:. Peter B. Bloch, Chairman Dr. Jerry R. Kline Mr. Glenn O. Bright i in the Matter of Docket Nos. 50 440-OL 50 441 OL CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. (PCtry Nuclear Power Plant, Units 1 & 2). December 23, ig83 i The Licensing Board admits a late filed contention concerning the reliability of diesel generators. RULES OF PRACTICE: LATE FILED CONTENTION An intervenor that has demonstrated its ability to contribute to the de. velopment of the record on a particular contention need not also promise to provide expert witnesses or outline their testimony. RULES OF PRACTICE: LATE FILED CONTENTION By adopting a schedule for discovery, the Board may minimize the potential for delay of the proceeding and reduce the negative impact of this criterion for late filing. 1404 t l l l

, - - -. ~ - - -.... I MEMORANDUM AND ORDER (New Contention on Diesel Generators) Ohio Citizens for Responsible Energy's (OCRE's) September 26, 1983 Motion to Resubmit its Contention #2 (Motion) shall be granted. However, our review of the basis for the contention persuade's us that it should be simplifiedi and admitted into this pr,oceeding in the following form: Issue #16. Applicant has not demonstrated that it can reliably generate emergency onsite power by relying on four Transamerica Delaval diesel generators, two for each ofits Perry units. Although this contention no longer states that a third, independently manufactured diesel generator must be ordered for each of the Perry units, as the submitted contention did state, OCRE will have the oppor-tunity to establish the validity of its contention and to demonstrate what relief may be appropriate, including the addition of a third ~ diesel generator. However, Cleveland Electric Illuminating Co., ef al. (applicant) will be permitted either to demonstrate the invalidity of the contention or that OCRE's concerns have been resolved by appropriate action, in compliance with 10 C.F.R. Part 50, Appendix B, General Design Criterion 17 and applicable guidance. I. BNSIS FOR.THE CONTENTION Although this contention must meet th'e five criteria of 10 C.F.R. l 2.714(a)(1) befo.e it is entitled to substantive c'onsideration,2 we find it useful to discuss OCRE's basis for the dontention before we address the late filing criteria, The event which triggered the filing of OCRE's motion was the August 12, 1983, failure - during a load test - of the main crankshaft of the #102 Electrical Diesel Generator of the Shoreham Nuclear Power 1 The authority to simplify and focus contentions is derived from 10 C.F.R. i 2.714(e). 2 We need not decide the ments of oCRE's argument that we should admit this contention because ap-plicant obtained dismissal ofits Contention 2 (which it is resubmittirig) by a misstatement. However, ap-plicant did not conceal any facts. Although its argument may have been somewhat misleading. OCRE had all the information available to it dunns the special prehearing conference that it has now since it relies for this argument on FsAR i 8.3.I.I.3.2. oCRE's Motion at 2. We note that the key question for avanatnlity of onsite power is whether Perry can achieve safe shutdown. Compere oCRE's Motion at 2 to NRC staff Response to oCRE Monon to Resubmit Rejected Proposed Contention 2, october 6.1983 (stafr Respunse) at 4 cirmt SER (( 8.3.1 and 9.6.3. (our record is not clear on whether applicant can rely on its High Pressure Core spray dedicated diesel generators to achieve safe shutdown, even if both . the larger diesels are unavailable.) .1405 9

Station. That event was followed by an inspection of the crankshafts on the #101 and #103 Electrical Diesel Generators, and each of these was f und to have " cracks in locations similar to that of the break in the - 0102 crankshaft.". All three electrical diesel generators at Shoreham were supplied by Transamerica Delaval.) OC. "'s Motion does not rely entirely on these remarkable events at Shsreha It relies as well on reported deficiencies in Perry diesel generators, which also are manufactured by Transamerica Delaval. It . states that the eleven deficiencies are " harbingers of troubles to come."* Applicant correctly states that the.rnere listing of deficiencies does not O provide a basis for a contention, since the reporting of deficiencies may merely indicate the correct operation of a quality assurance system.5 However, the Nuclear Regulatory Commission's Staff (staff) has concluded that the crankshaft failure and "many minor problems" in Transamerica Delaval generators constitute an " abnormally'high" rate of problems.' It also is concerned about the adequacy of the quality assuranc'e program of Transamerica Delaval,7 and has changed its conclua sion about the adequacy of the basis for OCRE's contention, currently concluding that it has a basis.8 Furthermore, we note that a number of the problems in Perry's gener-ators appear to be related to design problems. Deficiency Analysis Report (DAR) 044 concerned a problem in the d'esign of the system for lubricating the turbocharger thrust bearings.' DAR 079, involved poten. tial leakage of a check valve in a seismic event, and we are unable to'tell from the DAR whether a design problem occurred. DAR 081 is a design' lube oil problem, the choice of a mounting' location for.the governor,d we are cooler. DAR 083 concerns " inadequate Code Data Reports," an unable to tell from the DAR whether or not this may indicate'a lack of thoroughness in Transamerica Delaval's application of Code provisions. DAR 089 concerns nonconforming piping welds, but the DAR does'not disclose whether this was a design problem or a manufacturing problem. DAR 099 may have resulted from a failure by the designer to consider the clearance that would be necessary for proper installation of a cap 3 stair Response. Attachment E, ** summary of september 2,1983 Emergency Diesel Generator Meeting." september 21.1983 at 1. 4 oCRE's Motion at 4 n.l. 8LSP 8124.14 NRC 175 at 211. Applicants' Answer to ohio Citizens for Responsbie Energy Motion to Resubmit its Contention e2, october 3,1983 ( Apphcant's Answer). i + 6 Darrell G. Eisenhut. "New Information Concernins Transamerica Delaval (TDI) Emergency Dessel GInerators. Board Notification 83160." october 21,1983 (Board Notification) at 1. 711 at 2. See she sf. at Enclosure $ (letter transmitung Notice of violation). 8NRC staff supplemental Response (Based upon New Information in Board Notification BN.83-160), e october 27,1983 at 2. 2 3. 8For a discusson of these DARs, ser Applicant's Answer at 1214 and the referenced attachments. l ~ s 1406 j r 4 i ~ j 'f a e e p n m* L-g 4 af y 5%.s amr m w mey g

• y w

,....ysv_- y 9- ,a 9 y m 9 g sy y

=. h l t 1 } 4 screw. DAR 101. may have been caused by improper choice of a l material. DAR 109 may have occurred because of an improper or incom-plete specification of the grade of electrical wiring. DAR -117 apparently resulted from a design failure to comply with the ASME Code provisions governing pipe supports. DAR 139 involves a possible failure to use Class 1E power as required by the regulations. We note that the serious failure at Shoreham also involved improper design of the crankshafts.I' We do not consider it appropriate to consider at this time affirmative defenses raised by applicant in afTidavits..Whether or not applicant's 1, quality assurance program has been adequate to detect design or manu-facturing problems in the Delaval generators is a matter to decide after discovery has occurred, not before. Furthermore, we do not even have a description of how applicant has attempted to assure the quality of the , design of the Delaval generators. We conclude that OCRE has set forth the basis for its contention with sufficient specificity to gain admission of this issue to the proceeding. 1 II. GOOD CAUSE FOR LATE FILING After con' sideration of each of the five factors set forth in 10 C.F.R. l 2.714(a)(1), we find that the balance of these factors weighs in favor of the admission of OCRE's contention. ] OCRE filed shortly after the Shoreham incident, which is the kind of event that brings a potential problem graphically to mind and causes wise people to rethink their positions. The event'has had that effect on' both the staff and on OCRE. The fact that' other parts of the jigsaw puzzle of inadequate quality assurance were previously available does L i not detract from the significance' of this new information. OCRE had good cause for latc filing. We find that the'second and fourth factors, consider'ed t'ogether, also; ) favor CCRE's contention. The Appeal Board recently castigated counsel for another applicant for an unbalanced presentation of an argument that the staff could adequately, represent an intervenor's interest.'8 In its decision, the Appeal Board said: 1 j' + 10 Applicant's Answer to "NRC stair supplemental Response." December 16.1983 (Turk /swaneeser Amdavit.115-6). 88 Washwes Pupe Pomer Swpfy Syme (WPPss Nuclear Prosect No. 3) ALAB.747,18 NRC 1167, p 1173 77 (1983). .l . e e 1 1407 i i iI_ = _.. _ _ _. _ _.,,. _ ~ e 3 4 e ,y

-.c. e ~ t J i j The annals of NRC adjudications renect that the position taken by staff on a specific l safety or environmental issue (in the fulfillment of its role as the protector of the general public interest) orten is at odds with the views espoused by an intervenor seeking to vindicate either its personal interest or its independent perception respect. i ing where the public interest lies. Indeed, it was doublicss in recognition of the potential for such divergence that the Congress elected to provide hearing rights to private citizens and organizations in Section 189 of the Atomic Energy Act of 1954, a as amended,42 U.S.C. 2239.t2 1 i We note that applicant's rather nov'el suggestion that it can adequately represent OCRE's interests was unsupported by authority. We consider, p t.

g

{ this argument to fall a forfiori because of the just-referenced authority ~ i i that the staff, which is responsible for serving the public interest, cannot ' adequately represent OCRE.82 The third factor, the extent to which OCRE may be expected to partic-l ipate in the development of a sound record, weighs in OCRE's favor. In t this i'n' stance, OCRE has laid before the Board evidence suggestive.of a f pattern of design deficiencies. Had this evidence not been brought to us, we would have remained ignorant of the problem. Furthermore, OCRE I reiched a plausible conclusion about the implications of the Shoreham j incident, based on a reasonable interpretation of available evidence, before the staff reached that same conclusion. This represents considera- [ 'ble sophistication and diligence. We recognize that OCRE's greatest ' dra,wback as a party is that it has not yet presented any' witnesses to this I 'I Board and has not made any promises to do so on this issue. This repre-sents a weakness with respect to the third factor, but not a fatal one - i j particularly because the staff position makes it likely that there may be j some divergence of opinion that'OCRE may help to develop for the Boa rd. i The fifth, factor, broadening the issues or. delaying the proceeding,. works mildly against admission of this contention. To mitigate the risk ( of delay of the proceeding, the Board adopts the following filing schedule:

1. Briefs on the regulations and guidance applicable to this issue i, -

will be simultaneously filed by January 20,1984, with replies t l permitted by February 3,1984. Service of the brief, but not ' the reply, should be by express mail. I I L . til.f. at 1175. Sec'else 18 NRC 1175 n.25; "Illn cases where there are no other intervenors, the fourth factor snay always favor a grant of a laae interventum peutson." i 33 The staffs argument, staft Response at 7 9. was addressed detectly by the Appeat Board in the I WPPs5 case, cited above, and me nnd it to be entirely without rnent. .'If We do not mterpret WffSS, sagre to require an intertenor to indicate testimony it will present if it has established its ability to contnbute to the record in other w.ys. See the concumns openson of Mr. Edles,18 NRC at 1182-83. } 1408 I g i l I 4 2 f .. ~ - ,_-.-r. ~ ~- + 5 z

l I

2. The last discovery request, subject to good cause for an exten-sion of time or for late filing, must be made by April 6, 4984.

Parties should conduct discovery so that all follow up interro-gatories may be filed by that target date, j In light of these actions, designed to manage this phase of the proceeding, the effect of the broadening of the issues and the potential for delay is expected to be minimal. l l ORDER l For all the foregoing reasons and based on considerat!on of the entire j record in this matter, it is, this 23rd day of December 1983, l ORDERED l !ssue e16, concerning the reliability of generators supplied by Trans. america Delaval, shall be admitted into this proceeding. The schedul. discussed in the memorandum for the filing of briefs and completion of. discovery is hereby adopted. THE ATOMIC SAFETY AND LICENSING BOARD l Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE 6 Jerry R. Kline ADMINISTR4TIVE JUDGE. i Glenn O. Bright ADMINISTRATIVE JUDGE, I Bethesda, Maryland' E O g .t l j I I e ( - - -. + - -.. -. -. - - - - - - - - - - - + -. - - - -

• i i

1 u. c

Cite as 18 NRC 1410 (1983) LBP 83 81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAPETY AND LICENSING BOARD Before Administretive J@s: Peter 5. 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 al. (Comanche Peak Steam Electric Station, Units 1 and 2) December 28,1983 The Licensing Board finds that applicant has not demonstrated the ex-istence of a s! stem that promptly corrects design deficiencies and has not satisfactorily explained several design questions raised by the intersenor. The Board suggests the need for an independent design review and requires applicant to file a plan that may help to resolve the Board's doubts. QUALITY ASSURANCE: DESIGN - Appendix B to Part $0 of the regulations requires that there be a quali-ty assurance system that will promptly identify and correct deficiencies in the design of the plant. Applicant may not delay design review until the plant is nearly complete and claim that it is thereby complying with this regulatory requirement. 1410

QUALITY ASSURANCE: INDEPENDENT DESIGN REVIEW The Board issues criteria for an independent design review that would satisfy it, including specifications governing the independence and qual-ilications of the review group, rules assuring organizational independ-ence during the review, reliability measures for the review, sampling concerns, the scope of the review (including in-depth consideration of each of the intervenor's concerns), methods of documenting and pre-senting findings, provisions for review of findings and provisions for hearings concerning the findings. EVIDENCE: EXPERT QUALIFICATIONS Allegations should' be responded to in a reasoned manner.' General assurances by experts, even if the experts be better qualified are 'not satisfactory responses to. detailed engineering arguments by a qualified engineer. EVIDENCE: EXPERT OPINION A statement by an engineer that a matter need not be considered be-cause of unexplained and otherwise unsupported " engineering judg-ment" is an unsatisfactory explanation in response, to an engineering argument. RULES OF PRACTICE: FINDINGS OF FACT-Unless the Board has required that arguments be'previously filed or disclosed, there is no prohibition restricting a party from making new arguments in findings of fact. RULES OF PRACTICE: REFERRAL TO THE APPEAL BOARD Because of the potential expense of complying with an order suggest-ing the need for an independent design review, the Board expressed a willingness to refer its decision to the Appeal Board. It also established a deadrne for motions for reconsideration. TECHNICAL ISSUES DISCUSSED i U I)olts in pipe supports, cinching down SA 307 steelin friction connections j ,U bolts, local stresses on pipes 1411 i [ - - ~ - - - ~ ~ ~ ~- ~ l l l

Pipe support stability Stability of pipe supports American Welding Society Code, applicability to nuclear plant AWS Code, applicability to nuclear plant Free-end displacement, pipes and pipe supports Thermal stresses in pipe supports U-bolts, failure from overtorquing Torquing of U-bolts Over-tensioning of U-bolts, adequacy of field inspection J Field inspection of U-bolt tensioning i Stiff pipe supports Beta factor for tube-to-tube welds Recapping of welds Engineering error, significance of Calculation error, significance of Concrete stresses, allowable LOCA forces on upper lateral restraint beam Wall-to-wall supports, expansion stresses Siab-to-wall supports, expansion stresses Floor-to-ceiling supports, expansion stresses - Expansion stresses, pipe supports Richmond inserts Axia torsion, Richmond inserts Quality assurance, organizational interfaces. MEMORANDUM AND ORDER (Quality Assurance for Design) [The parties are prohibited from informing anyone about the ' existence or content of tr.is Memorandum and Order prior to 12 noon Eastern Day-light Savings Time, December 28.] - The record before us casts doubt ort the ' design quality of the Comanche Peak Steam Electric Station (Comanche Peak), both'because the Texas Utilities Generating Company, et al. (applicant) has not d3monstrated the existence of a system that.promptly corrects design - deficiencies and because our record is devoid of a satisfactory explana-tion for several design questions raised by the Citizens Association for Sound Energy (CASE). We suggest that there is a need for an independ - ent design review and we require applicant to file a plan that may help to resolve our doubts. 1412

l The concerns that led to this decision were introduced into the pro-ceeding by two engineers, Mark A. Walsh and Jack Doyle, who worked for applicant for a combined total of less than two years. During that time, they acquired doubts' that they have brought to the Board's attention. Because of the limited ability of these two individuals to ob-serve deficiencies in such a mammoth undertaking as the construction of a nuclear plant, the failure to provide logical explanations for several of their allegations raises questions about the adequacy of design of the entire plant. The purpose of the plan we are requiring applicant to file is to assist this Board in resolving those questions. I. APPLICABLE REGULATIONS It is applicant's position that " Appendix B does not address inadequate designs but rather addresses the conformance of installed hardware and ~ the inspection thereof to the design /'t We conclude that this position,is unacceptable. The applicant and staff, which agrees with it, have adopted a' fallacious interpretation of Appendix B, and CASE, while not' entirely correct, has urged a more logical interpr,etation.2 We begin by accepting the staff's interpretation of the applicable regulations, up to a point. General Design Criteria 1 and 4, in Appendix A of 10 C.F.R. Part 50 are applicable. In relevant part, with emphasis . supplied, they provide: Structures, systems, and components important to safety shall be des <gned.. to quality standards commensurate with the importance of.the safety functions to be ' erformed. p Structures, systems, and components $mportant t2 ufety shall be designed to ac-commodate the effects of and to be compatibie with [ design, normal and accident conditions). The quality assurance implications of these general design criteria are set forth in NRC regulations: Appendix B to 10 C.F.R. Part 50. We in-terpret Appendix B to be a sensible, integrated regulatory system for requiring that both the design and construction of a nuclear plant must I Apphcant's Findings at 27. 2 Compare CASE's Proposed Findings of Fact and Conclusions of Law (walsh/Doyle Allegations). August 22,1983 (CASE's Findings) at Chapter XxV to NRC staffs Proposed Findings of Fact in the Form of a Partial Initial Decimon, Au8ust 30,1983 (staffs Findings) at 814 and to Applicant's Pro.. posed Findings of Fact in the Form of a Partial Initial Decision, August 5,1983 (Applicant's Findiass) at 18 28 and to Applicant's Reply to CASE's Proposed Findings of Fact and Conclusions of Law (walsh/Doyle Allesations), september 6,1983 (Applicant's Reply) at 9,1214. (See abo Tr. 6675 80.) I s " ' 4 1413 ~ i-

l be scrutinized to assure that all conditions adverse to quality, including design deficiencies, are promptly identified and corrected. Our tour through Appendix B begins with the introduction, which pro-vides that an applicant must have a quality assurance plan for design and construction of its nuclear plant. We'do not consider it fortuitous that design is listed first. Quality assurance for design logically precedes quali-ty assurance for construction, which conforms construction to design. We find that this theme recurs throughout Appendix B. Criterion I of Appendix B specifies the establishment of "the quality cssurance program," which shall assure that " activities affecting the t i safety-related functions have been correctly performed." (Emphasis edded.) Nothing in this section is limited to construction activities. It en-compasses all activities affecting safety, including design activities. Criterion 11 requires that the quality assurance program be established "at the earliest pr'acticable time" and that "[tlhe applicant shall regularly - review the status ' nd adequacy of the quality assurance program.") This a concern about the timeliness of quality assurance is echoed in Criterion XVI, which requires that " conditions adverse to quality (bel... promptly identified and corrected." Criterion XVI also contemplates the identification and correction of the causes of significant deviations from quality; it requires the reasonably prompt identification, documentation and correction of deficiencies.' The need for prompt identification of deficiencies is consistent with 10 C.F.R. l 50.55(e)(1), which requires that the holder of a construction permit "shall notify the Commission of each [significant) deficiency found in deAign and construction, which, were it to have remained uncorrected, could have adversely affected the safety of operation' of s the nuclear power plant...."5 It is apparent that fulfillment of the obli - gotion to report design deficiencies to the Commission requires that an applicant have an ongoing quality assurance program for design and that its program must have the capacity to spot, track and resolve significant' design deficiencies on an ongoing basis.' 3 Emphasis added. 4See Cleveland Electre Illamtmarma Co. (Perry Nuclear Power Plant, Units I a 2), LBP-83 77,18 NRC 1365.136849.1372-73 (1983). (The Board decided that a quality assurance contention should be dismissed on the ments because deficiencies had been corrected in a reasonably prompt menner, connd. erms the seriousness cf individual deficiencies and the small number of deficiencies cleared after delays of more than just a couple of months.) 8 Emphasis supplied. The wording of the section has been abridged to increase its conciseness while r.ill reflectmg its mient. 6 Arguably,i $0.55(e)(1)(ii) is restrictive because it only requires a report of "tal signancant dancien-cy in faaldesse as approved and released for construction... " (Emphases supplied.) However, "6nel design" should be interpreted to be consistent with industry usage, reflected in the following dennstion (Conrinand) 4 4 1414 b

i, ( The importance of design control also is recognized in Appendix B, i Criterion III. The first paragraph of that criterion recognizes that design documents have a commanding place in the quality control system be-l cause those documents " include provisions to assure t' hat appropriate quality standards are specified..." The first sentence of the third para-j graph states that design control measures "shall provide for verifying or checking the adequacy of design." l l The fourth paragraph of Criterion ill recognizes the " iterative pro-cess" for the design of plants.'It provides a method for making field i changes in design. It states: ~ Design changes, including field changes, shall be subject to design control meas-A ures commensurate with those applied to the original design and be approved by the organization that performed the original design unless the applicant designates another responsible organization. 4 We interpret this provision as intending to assure that whatever d'esign + changes are made be of high quality. Furthermore, that quality, which af-fects the entire process of construction, was intended to be subject to all the requirements for an ongoing quality assurance program. We reject the view, propounded by the staff, that "the regulations don't have a time sequence built into them as to when you have to run an analysis."? Applicant is incorrect in believing that it is permitted an i indefinite period of time to catch errors commiped early in the design 4 process because, "in.the later stages of design review,", it will have highly experienced and capable engineers check the system once again.8 _It is o'ur view that the regulations require timely identification and cor-rection of errors. We reject the view that the promptness requirement of the regulations applies to construction deficiencies and not to design deficiencies. Such a view necessarily rests on' an illogical interpretation of the regulations; it would require us to believe that the Commission { sought prompt correction. of construction deficiencies, defined as a fail-i ure to comply with design documents that are themselves exempt from the need for prompt' correction of deficiencies. In that view, quality j assurance is a scholastic pursuit not related to the actual quality of the plant. A preferable vi_cw is that both construction and design deficiencies 1 1 4 i or " final design" in ANsl N45 2.11 1974, i 1.4: " Approved denen output documents and approved i changes thereto." Consequently, documents used to construct the plant are final denen documents and deficiencies in those documents. as approved and released ror construcuon, are covered by { $0.55 j e reporting requirements. 7Trve676. 8 Apphcant's Findings s't 25. Ceaupere to ANsl N43.2.ll.1974. 611.$. requenne that "faludats should be conducted on a routine basse to establish the adequacy or and conformance to the demon quality a assuranm regunenwam" pt i, f I 1415 i -.-. ~, -. --.. -.. - -- - - - - - - ? _._____________.m._ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ^ ^ - - - - - - ~ ' ^ ' - ~ - - " - - ~ ~ ' '

must be identified, reduced to writing, and corrected with reasonable pr:mptness. II. BACEGROUND Contention 5 in this proceeding states: The Applicants' failure to adhere to the quality assurance / quality control provisions required by the construction permits for Comanche Peak, Units I and 2, and the re-j quirements of Appendix B of 10 C.F.R; Part 50, and the construction practices i employed, specifically in regard to concrete work, mortar blocks, steel, fracture s t;ughness testing, expansion joints, placement of the reactor vessel for Unit 2, weldms, inspection and testing, materials used, craft labor qualincations and work-2 ing condations (as they may affect QA/QC) and training and organization of QA/QC i personnel, have raised substantial questions as to the adequacy of the construction cf the facility. As a result, the Commission cannot make the findings required by 10 l C.F.R. 50.57(a) necessary for issuance of an operating license for Comanche Peak. This contention is very broadly worded'and has been b'roadly interpreted by the Board.' We have interpreted it to apply to quality assurance for i design of Comanche Peak and also have permitted CASE to raise ques-l tians concerning particular design deficiencies alleged not to have been c ught by the design control program. A. Relevant History of the Walsh/Doyle Concerns ** 1 On July 28, 1982, Mark A. Walsh made a limited appearance state-mint in which he expressed a range of concerns about the design of pipe supports for Comanche Peak.Il Mr. Walsh has a B.S. in Civil Engineering i from Wayne State University, Detroit, in 1976 and had five years and l .three months engineering experience prior to June. 18,1982,-when he j-voluntarily resigned his employment as a group leader in a Comanche Pe:k technical support group.32 Subsequent to his limited appearance, Mr. Walsh appeared as a witness ' { for CASE.33 Mr. Walsh's written limited appearance statement was b identified and admitted into evidence, together with several attachments.l* i I ' Tt. 714. 30 For stus section or the opinion we rely in part on stafra Findinst i i II Tr. 271218. l 12 CASE Enhetut 639A. l. la Tr. 3074 3188,3197. i 18 CASE Enhitut 6$9,6$9 A.II, OAsE Enhitnt 668 (and enachment). i 1416 1 p + S w i

4 l Following conclusion of the July hearing session, CASE requested j i and the Board issued a subpoena to enable CASE to depose Mr. Jack Doyle, who was described by CASE as having informat. ion supporting l, Mr. Walsh's allegations and otherwise challenging the design of pipe sup-ports at Comanche Peak. Mr. Doyle is a non-degreed engineer with over 4 thirty years of experience in stress, design and field engineering, includ-ing about 8.5 years in various aeronautical and aerospace engineering projects. He has spent in excess of three years in the design and analysis i of pipe supports and pipe support systems for nuclear plants and has , additional experience in the petrochemical and construction industries. i He has designed pipe supports by hand (overlapping assumptions) and computer. From August 1981 to June 1982, Mr. Doyle and Mr. Walsh i worked for the same pipe support group at Comanche Peak.l! Prior to the resumption of hearings on September 13,1982, applicant and staff prefiled rebuttal testimony on the allegations of Mr. Walsh.l* CASE submitted the deposition of Mr. Doyle as his direct testimonyt? and later introduced supplemental direct testimony for Mr. Walsh and Mr. Doyle.'8 i At the September 1982 hearing session, Mr. Doyle was called as a wit- ' ness by CASE.I' Mr. Doyle's written direct testimony consisted of his j - deposition, which was identified and admitted into evidence,20 and his written supplemental testimor'y,23 In his testimony, Mr. Doyle also ex-pressed concerns regarding the design of pipe supports for Comanche ~ Peak. Some of these concerns were similar to those of Mr. Walsh. i At those September 1982 hearings, applicant presented its prefiled }, rebuttal testimony on Mr. Walsh's allegations 22 and provided additional written rebuttal testimony on Mr. Doyle's allegations.22 Applicant's' wit-nesses were experts in the area of (1) the ASME Code (Mr. Reedy), (2) structural engineering (Mr. Scheppele and Mr. Finneran), (3) pipe sup. c j piirt engineering and the' Structural Design Lan' uage (STRUDL) code g j ISCAsE Eahibit M9A. Attachment 1. 16Appiscant's Preflied Testimony of witnesses scheppele, Reedy. Chang. Finneran and Krishnan Ap. plicant's Exhibit 142; sted's Profiled Testimony of witnessee Chen and Tapia, marked for identencation as stafrl!ahibit 201. i 17 Tr. 36314010. CASE Exhibit H9. + Ilsupplemental Testimony of Mark A. Walsh, CASE Exhibit M8; supplemental Testimony of Jack j Doyle CASE Exhitet 683. l'Tr. 3622 4012,4705 56. l-20 CASE Exhibit H9. H9A. es corrected by CASE Enhibit M9.l. together with attachmente to that j testamony. CASE Eshibit H98. i l j 28 CASE Enhitst 683. together with attachmente to that test 6 mony. CASE Exhibit 683 A through K. j 22Applicent's Enhibit 142. Tr. 47H. i 22Appheant's Bahabit 142F.Tr. 4784. a m; i t p,, i 1417 I 4' ( r ~ _.. ~

4 (Dr. Chang), and (4) pipe stress analyses (Mr. Krishnan). These wit-nesses were subject to extensive cross examination and Board qu:stioning.24 The staff presented its panel of Dr. W. Paul Chen and Mr. Joseph Tapia25 in rebuttal to the allegations of Mr. Walsh and Mr. Doyle. Their t:stimony consisted of prefiled direct testimony 26 and additional' oral ex:mination.22 However, since the Board was dissatisfied with the staffs preparation, it interrupted the cross-examination of these witnesses before cross-examination was completed, and the staffs direct testimony i was never admitted into evidence.28 r Following the conclusion of the September hearing ses-!on, the staff frrmed a Special Inspection Team (" SIT") to investigate and evaluate the Walsh/Doyle concerns. The SIT's work occurred from October-13, 1982 to January 18,1983. The results of its work are found in inspection Report 82-26/82-14, dated February 15,.1983 (" SIT Report").2' . The SIT Report documents the special inspection of applicant's pipe support engineering program, in response to concerns expressed at the July and September 1982 hearings by Walsh and Doyle. SIT identified nineteen broad areas of concern expressed by Walsh and Doyle, deter-I mined the design status of the pipe supports used as examples of these concerns, evaluated the validity and safety significance of each concern, inspected the design procedures and practices of the applicant's pipe sup. port design organizations, and inspected a sample of 100 pipe support d: signs that had passed through the complete design review process.30 Prior to the resumption of the hearing in May 1983, witnesses Walsh and Doyle, who had not been given an opportunity to comment on the SIT Report prior to its publication, filed additional written testimony.31 Mr. Doyle's testimony raised new concerns regarding pipe support design, clarified.his earlier testimony, and criticized the SIT Report anal. yses and conclusions in numerous respects. Mr. Walsh's testimony, identified 'for the record certain documents. In anticipation of the May 1983 hearings, the staff pre filed the SIT - Report and written testimony of the SIT members regarding the con-24 Tr. 4832 5305. 25 Tr. 5326. 26 staff Exhibit 201. 27Tr. 5353 56. 2:Tr. 640102. 2'stalt Exhibit 207. 30 staft Exhibit 207 at 12. 33 See "surrebuttal Testimony of Jack Doyle, witness for Intervenor CASE."' April 26. 1983;

• supplementary surrebutta! Tesumony of Jack Doyle. Witness for Intervenor CASE." May 9.1993; "strrebuttal Tesumony of Mark Anthony Walsh. Witness for intervenor CASE." May 4.1983.

j i 1418 i t i + .~,, o m

A + cerns of witnesses Walsh and Doyle,32 as well as supplemental testimony regarding the concerns raised by witnesses Walsh and Doyle and the NRC Construction Appraisal Inspection Report (CAT).for Comanche Peak.33 At the May 1983 hearing session, the staff presented its prefiled writ-ten testimony. The staft's witnesses were the primary SIT members: Spottswood Burwell (Project Manager, NRC Division of Licensing); Dr. W. Paul Chen (Manager, Stress Analysis Unit, Systems Engineering Department of the Energy Technology Engineering Center); Joseph I. Tapia (NRC Reactor Inspector, Region IV); Robert O. Taylor (NRC Resident Reactor Inspectos at Comanche Peak); Dr. Jai Rad N. Rajan (Mechanical Engineer, NRC Division of Engineering). These witnesses were subject to extensive cross-examination and Board questioning. Subsequent to the May 1983 hearing, Mr. Tapia and Dr. Chen filed af-fidavits concerning items that the staff felt it was unable to respond to in the course of the hearing.34 On November 4,1983, CASE responded with affidavits of Mr. Walsh and Mr. Doyle.35 ~ We also requested filings from the parties concerning applicable weld-ing codes at Comanche Peak and concerning the applMability of the staf1's position on stiff pipe supports (Board Notification 82105A) to the Walsh/Doyle matters. The parties filed briefs in response to these requests. J B. Qualifications of Witnesses Applicant has argued that we should place substantially more weight on the expert testimony offered by its witnesses and by stafl's witnesses because they are so much better qualified than CASE's witnesses.3* This we decline to do. Although we find that applicant's witnesses are better 32,e NRC inspecuon Report 50-445/82 26. 50-446/8214 (staE Exhibit 201); "NRC staff Testimony 5 of spottswood Burwell. W. Paul Chen, Joseph I. Tapia. Jai Raj N. Rajan, and Robert G. Taylor Resard-ins Concerns Raised by Mark A. Walsh and Jack Doyle." 33 See "NRC stag supplemental Testimony of spottswood Burwell, w. Paul Chen, Joseph I. Tapia. Jai Raj N. Rajan, and Robert O. Taylor Resardins the Concerns Raised by Mark A. Walsh and Jack Doyle, and the NRC Construction Appraisal Inspection Report for CPsEs." 34 Afridavit of Joseph I. Tapia and A mdavit of w. Paul Chen (october 14.1983). 38 The only aspects of those amdavits utilized in this decision are Mr. Doyle's discussion of torsional moments in Richmond inserts and his discusson of the shield well thickness near the upper lateral restraint. Both matters are fully covered in previous testimony (Tr. 6886 6911. NRC staK Response to CASE's Motion for Reconsideration. Decerisbet 14.1983 (stan Response) at 14; see, e.g.. Tr. 6018 34; staff Response at 15). Consequently, we have not treated these portions of the amdavit as new evidence but as permissable argument and we have rejected applicant's request for an opportumty to submit a reply *we informed apphcant of out ruims with respect to torssonal moments Dy telephone on December 15.1983. subsequently, we realized we also would utilize the Doyle amdavit concermns well thickness ' and that applicant would not be permitted to reply for the same reston. 34 Applicant's Findings at 10. 4 1419 y

• [ t.l

-[( + p t n

. e L. a.:. ~....... =.:........--. qualified, in that they have more schooling and have risen to more pres-tigious places in their profession, we found Mr. Walsh and Mr. Doyle to be field-wise engineers. Many of their points are valid, as reflected j throughout the SIT Report, which often stated that applicant had identi-fled the Walsh/Doyle concerns independently or that its design review process could be counted on to identify some of the matters and cure thtm. Our criterion for weighing Walsh/Doyle concerns tgainst other testimony is that we required a reasoned explanation that supported the e safety of the systems challenged by Walsh and Doyle. If we were satisfied that a reasoned explanation had been provided we accepted it. j Otherwise, we were unable to find that a preponderance of the evidence i ftvored the applicant's case. In some instances, applicant or staff urged us to accept a conclusion because of " engineering judgment." However, we do not consider it satisfactory to present engineering judgment without any explanation. Engineers should be able to explain the reasons for their judgments. An in!.bility to provide an explanation beyond the bald statement of " engineering judgment," erodes this Board's confidence in the validity of the statement.37 Although we disagree with the significance of the qualifications of ap-plicant and staff witnesses, we agree that applicant has stated them tecurately. Consequently, we adopt applicant's statement, which we set' forth as Attachment A to this memorandum.38 C. Extra-Record Materials We previously decided that CASE would not be permitted to supple-mint the record in this proceeding in order to make up for possible defi-ci:ncies of proof that it noticed when it was preparing its findings.3' We considered the motion to supplement the record to be an untimely at-tempt to reopen the record. However, when applicant and staff filed their findings we were sur-prised to see an argument that CASE was barred from relying both on extra-record evidence and on new arguments.* With respect to extra-record evidence, applicant and staff are correct. However, their assertion about new arguments is unsupported by cited authority and seems to be / c. 9 incorrect. This Board has not previously required any filing of - c 37 [ Footnote deleted. see LBP-84-10.19 NRC 0000 (February 8.1984). say sp. at 1315. 37.1 38 Attachment A is derived frorn Applicant's Findings at 310. .j 3'LBP.83 55.18 NRC 415 (1983).

1. Applicant's Reply at I.3; staffs Findins: at 2 3.

5. ICO J'.s i p qf 9 ,r. --* m-", " ~ ~ ~ ~t ~ q rr* y*

+-~-- - ~

m...,y - . f.., e.2.. w. s.r p ;,,c ..g ...s.,, )uw: ~ M;. .s., w .s.... ~ -N ~ ', l m.- @l C., !;. ' y, ;3.- li -..1 i * * ' },[ ,' 1 > > ~ .T? ' l, '.' %n .b f.; .:,2 ,j. < p., ve -(g {;. r'. s

• 1 A,.o

^ ) Mzu; x

Walsh/Doyle arguments and we have no knowledge of any reason to pre-clude new arguments. At the close of the evidence, it is up to applicant to argue that it has sustained its burden of proof and up to.the intervenor to argue its own view. We know of no valid reason to forecice new ~ arguments. 1 Furthermore, when it comes to considering the safety of a nuclear plant, we think it important to consider any argument that may be made. If the safety of applicant's plant is not assured, even from argu-I ments not previously thought of by the intervenor, then the ssfety of the public is not assured. There is no reason to think that potential acci-i dents have all been described in arguments previously made.' i III. EVIDENCE CONCERNING QUALITY ASSURANCE FOR DESIGN A. The Iterative Design Piucess Applicant sta:es that, "lal substantial portion cf the allegations raised by CASE concerns the design of individual pipe bupports."*2 In response to these allegations, applicant provides some partit:ular responses, but it also relics on a description of its iterative design process. Applicant's own description of that proce.ss is helpful in reachmg an understanding of the methods that it employs: The process for tas design of piping and supports is itera'ive in nature. In fact, it is ] unrealistic to expect to design piping and supports to s.tisfy all applicable require. I ments the first time through the process. Such an iterative design approach is em. played throughout the nuclear industry, and is utilized in the design of other nuclear companents as we'L Briefly. the design of an individual support begins with an initial design b.ned on the known initial piping stress analysts. When it is impractical to construct ths support as originally designed, a new support scheme is required and an update of tf e oci,insi piping analysis will be performed. This process continues t until ths final as.bt.ilt analysis confirms the adequacy of t,oth the piping and supports. (Applicant's Exhibit 142 at 33 34;Tr. 4%9, $184,7155 57.) The it.r ative design process was described by Applicants and is summarized in NRC Exhibat 207 at 1416. As described therein, the process focuses upon a piping " stress probleut" which consists of a designated length of ptpe for which a pipe support is an accetsz,ry that cannot be designed separately from the length of pipe. The steps in this iterative design process are, as follows:

• l We note that the rules antacipate the possibility of new arguments by intervenors. This 6s undoubt.

edly a reason that appbcant, wNsh has the burden of proof, as given the opportunity to reply to interve. nt.r's findicas 10 C F A. ) 2.754(a)U). 42 l Applicant rerers us to CASE EaNbis 4595. I \\ 1421 k e P 1

o F y.N' ~. GM,. I k t

1. A conceptual design for a length of pipe le propered using the piping plan and i

elevation and/or loosnetric drawings for the plant. } I I

2. An initial pipe stress analysis on the conceptual piping design is performed to I

calculate the forces and types of loads on proposed supports on the conceptual piping design. i

3. The description of the acceptable piping layout (6ncluding the proposed support locations with accompanyms directions of restraint and magnitude of forces) is i

sont to one of the three support design groups.

4. During installation of the supports, field engineers are available to authoriae changes to support designs as neccesary to produce a usable design.

t

5. Once pipes and some of the accompanying supports are ineselled, a QA inspec.

I tion of the as-built dimensions of the piping and installed pipe supports is a performed. The drawings utihnd at this step are then stamped "as built veri-ned" and transmitted as e package to the appropriate piping strees analysis or. i, genisation (Gibbe & Hill or Westinghouse) for a preliminary stress analysis. f f J

6. The pipe stress analysis organisation conducts its preliminary stress analysis, sdjusting the piping strees problem for any new factors which impact on the f

/ i s pipe or support stremos. The stress problem is rerun to determine new stresses I in the pipe and new loads on the pipe supports.

7. The attees package is then returned to the appropriate design group, which reviews the new piping loede to determine whether the particular hanger 6e still appropriate Supports which are found to be satisfactory are sta'nped " vendor i

certified" and if found to be unsatisfactory are medaned and a new as built design parksge is sent to the pipe strees analysis organ 6sation.

8. Upon completion of installation of all supporte, a stress problem package (incorporating changes to the supports sees the problem was nest run) is pre.

pared and prov6ded to the pipe strees analyses organisation for teenelysis. A l pope strees problem will be terun if the new as built connguration impacts the g p,,,,,,,,,,

9. This package is once again returned to the appropriate design group to deter.

mine whether any supporte need be modened as a result of the new strees prob. o lem and if so, will be modined and returned ones again to the pipe stress analy. sie organisat6on until all pipe stresses are neceptable and all pipe supports are vendor certined to the loede developed in the last run of the strees problem. (Applicants Enhib6ts 142 at 33 35,150 and 151; NRC Enhib6: 207 at 1416; Tr. $236 91,7152 54 ) + i. . s . i *, g' The above described as built program le established in asserdance with the re. , y quirements of NRC IAE linspection and enforcement) Sulletin 7914 (NRC Enhib64 20lC; Applicent's Eshibit 142 at 34 35.) s s , g p 4, g 3 J # P t 9 e 9

• f 4,

e-test y 5 e. c. :.,

I

~. .s f 8 r [' , i 3' ,{e-8 4 e 8 ,,8 r. 5. e* g - c y m,.y yay.q.f & % p.- -.., m f., n g.

m. -

7f,7 t $ 's. 4.- 4.- . f 4. f.. r . s. ' N ; 'c ' ', ', E* E 'p*_ .,'\\, e, 't. gh I' ' ' e,,,, (jh k,'Q 2 ',*gi 'l: ie

,.(,..

y ,f.,- T! ' '.j * 'f, f,'3,' ,i. ',o-.?., . t *j =", v p ',.,. 3 9 ' ,1 c. ' J.,;a.

4

, c; - ,, 3 ..-.,g ;. - s m, %..,,,, -. <. g j + + ' ;.. M,, e*x...,;,.f.,n .4,.:n t t , e.,, = .s .,.e.- a, w. %*

f. (; Q a v.>...

? & Q: m Y,,%c;;.v. T i Y.:. V ",g y ' l. 3 f 'b j i &, [ ; f,, f,,:;;;., ' ~, ; }. ~3{&,,6%."[. ] 4 i 'M CU (' ba. _ : ~; _ _ _ ,4m v: L~ MW

.m .v.j .= 'c;

• _s e

','^i Further Applicants have at least two processes in place to check the validity of ~ thefinal vendor certification process.43 The first is a design control group within the pipe support engineering organization on site which is responsible for randomly sam- ",s pling final vendor certified drawings to assure satisfaction of applicabic requirements. Second, Applicants audit the tendor certification process and final I designs from both a programmatic and technical viewpoint. (Tr. 7143, 7173-75.) i ~ 5-Accordingly,... adequate controls are in place to assure the effectiveness of the it-m erative design process." i B. Analysis I Applicant would have us accept its iterative design process in fulfill-ment of regulatory requirements because of "two processes in place to check the validity of the final vendor certification process."*5 Applicant's witnesses testified that rionconformance reports covering design defi-ciencies need not be completed until the end of the iterative process." s Similarly, staff would have us accept the process because " Applicant's it-a; erative design review process has the capability (emphasis in original] to '4 .i identify and correct pipe support design deficiencies prior to or during the Applicant's As-Built Verification Program."*7 The reason we reject these arguments is that we do not consider it proper for applicant to wait until the end ofits design process to attempt to locate and correct design errors.'8 For reasons we discussed in detail above, Appendix B requires that the process for correcting errors be rea-sonably prompt. Waiting until the end of the design process does not ~ satisfy this requirement. There should be quality assurance for design as part of the iterative process, not just a QA inspection of construction, as - '~ provided in Step 5.*' 4 1 43 The Board interprets the " final vendor certification process," for which there is a validity check, to be saep 9 in the iterative design process, set forth above. " Emphasis supplied. Applicant's Findines at 19-21. See else staffs Findings at 15-17, which are simi-lar but are somewhat more detailed in some respects. 45 Applicant's Findings at 21.

1. Tr. 5185 (Reedy); Tr. 5186 (Finneran). This excerpt from the transenpt establishes as well that ap-plicant knew in september 1982 that CASE was concerned that Appendix B, Criterion XVI, applied to demsn deficiencies.

47 Staffs Findings at 17, cWar Stair Exhibit 207 at 16. 48 Applicant's argument that it has complied with I&E Bulletin No. 79-14 is an incomplete answer to j ~

whether it has an appropriate program for assuring the quality of design. That bulletin addresses a con-cern that " inspection by IAE and by licensees of the as-built configuration of several piping systems revealed a number of nonconformances to design documents which could potentially afrect the validity of sesentic analyses." The Bulletin attempts to assure that as-built information is utdiaed in pipe stress analyses. !&E Bulletin No. 79-14 (1979) at 1.

The only mention of prompt quality assurance in Applicant's Findings is a vague reference to "internEl checks in that process." Applicant's Findings at 28. However, applicant has not demonstrated how those checks work and it has continually belittled the importance of such checks by belittling CASE's identification of errors in documents that have not undersons the final vendor certification I fConnnued)' s k 1423 4 l \\' ? .: h u L w ),1.Q( *Q 7a [7~ (.N 'f jg G&,f L !' y .f g ..f.. $x 6, 'y-

? y$.a

~ y a .;y

_ [ k-o

[ k s r 3

a ~ :..w..a. -.-..~. The case before us provides ample justification for the promptness re-quirement of Appendix B, though it is not up to us to decide whether or not the rules of the Commission are appropriate.5o We find that it is im-l portant that Mr. Walsh and Mr. Doyle were able to provide many i " preliminary design drawings" indicating potential problems - because i applicant had no quality assurance process for prompfly identifying, tracking and resolving those problems.58 An interesting example in which a nonconformance tracking system would have been useful is with respect to problems ofinstability in pipe supports. Although this concern is one of CASE's,52 we think applicant accurately describes the concern, as follows: CASE's witnesses expressed a concern that certain pipe supports, the designa,for which they observed in their positions in the STRUDL Group, were unstabic. Specifically, they alleged that certain types of supports could t,c characterized as three-bar linkages which would be unstable if the supported piping was able to rotate within the box frame or U-bolt attaching the pipe to the support. Further, other instances of instability could arise even where such gaps did not exist initially but were created by movement or deformation of the U-bolt or by insufficient fric-i tion of the box frame on the supported piping. (CASE Exhibits 669 at 95-104,669B, Attachments 4 and 13. See also CASE Exhibit 659H at 1; Tr. 3103-05,3109.)53 Instability problems were known to applicant by April 1981.54 Mr. Doyle, while he was working within applicant's STRUDL Group (from August 1981 to June 1982), explained the problem ofinstability to Mr. Terry Curlin, who appears to have had some form of supervisory re-sponsibility for pipe support design.55 Furthermore, an incident of seri-ous instability was known to and corrected by the applicant.5' Nevertheless, it was applicant's practice to handle instability problems on Component Modification Cards (CMC) and not on nonconformance procesa. Mr. Reedy did state that two pipe support contractors comply with Appendix 3 but his testismo- {_ ry is not persuasive because he does not believe that Appendix B requires NCRs for design dersiencess ( :. until after the iterauve process is completed. Tr. 5187, 5185. (The stafr also is not concerned about qual-i e ity assurance for demsn prior to completion of the vendor certification process. Tr. 5407-08 (Mizuno, [* stafrcounsel).) SoIf the application of a Commission regulation would be inappropnate in this case, an excepuen may ( be applied for under 10 C.F.R.{ 2.758(b). StThere are many instances of problems in " preliminary design drawings" in the slT Report, and staffs Findings at 22 characterized the scope of the problem as beans "many" such problena We agree with the stafr characterization of tius problem but reach a diNerent conclusion about its significence. [ 52 3,e CASE's Findings, m 1, citing CASE Exhibit 6698. items 4C to 4H,41 and 4J,4-0 and 4-F,4Q p and 4R, llYY though 11BBB and CASE Exhibit 669 at 95-105 (Doyle). F 53Apphcant's Findings at 45. P 54 CASE Exhibit 669A at 2122 (Mr. Doyle). Note that the transcript refers to Mr. Curlin but CASE's j findings, at III-2 refer to Mr. "Curtin." The Board is not certain what the correct spellins of the name j ^, may be. i.' 55 Testimony of Mr. Finneran (Tr. 4889). y 56 CASE Exlubit 669A at 24 (Doyle). s s s ~ 1424 ~. >. L R l a ,. -l }., N y. ...v-r rra p - - y;,~~e v ~ w. v -w- - - %..R,.... ?. t .l,. - $ w.NW,W i., ', ',..+ .,. - A. C,.. - -,w....wa.. k,{, ; #? 6 ..m. . :h ',-. w

e,..

. v"... .. x '(. #C ',* a *. .p. k !.,_,,_'Y ((r?,I* ' f[ N. ~ y g ' y"I ]

• 3 t'{ f 7

c. . k.2..,,. ,,(. .: ? &n 4 _ ~ -.h w. ~ :.+K. :,,*:- arpy ~.1.1;. a... ~. y : .y..~.-

• 3...

m. * * '.~

• • *"iM.

-= q,

~ 9,9,>{ti,l'y 17'iM.<N[.)WW.V. '. W S';; ~ N. f.i -< -' '.,lM J - ,N *

• a.. _ -

-l' ~F ', W.k ' - ? ' - l' w ~

fy M QLW'

. h ^ u*p. ' J '..W ',,;T.; ' G.? l.;~.. y. y,;., .,,4 . +, ~ . ~ - r n, r.. ,y f.,

&y ;,

1 .y. ~_. .a s + ~ ), Q '...'l ".f ~ .e } ?z?_' '5 l ~.v 's = ' .l; ,~

~~ ,. -;.I m ~ y. . s t: , ' 7 l 4 ~ ~ reports (NCRs).87 A consequence of this difference in documentation is that there was no prompt effort made to identify analogous problems elsewhere in the plant,5 there.was no trending of similar deficienqies," ~ and there was a breach of applicant's obligation to determine the cause of the condition ofinstability and to take steps to " preclude repetition," ~ as required by 10 C.F.R. Part 50, Appendix B, Criterion XVI. The absence of a nonconformance tracking system for design may also have led to the feelings of personal dissatisfaction felt by Mr. Walsh and Mr. Doyle. These engineers were assigned to applicant's Structural Design Language (STRUDL) Group, ~ a subgroup within the Site Stress Analysis Group ("SSAG"). The entire SS AG is a service organization with no responsibility for the design of pipe supports. TI'e STRUDL Group's function is to develop a mathematical model of pipe supports c, based on information provided by the pipo support design organization, to conduct an analysis using the STRUDL computer program employing the data piovided, and to return the results of that computer analysis to the designer. (Applicant's Ex-hibit 142 at 910.) The STRUDL Group performs only a service function and is not organazed or called upon to evaluate the results ofits computer analyses.60 As members of the STRUDL Group, Mr. Walsh and Mr. Doyle worked on many design documents. As engineers, they becanic con-cerned that many of these documents had deficiencies. Although they J t were not responsible for correcting those deficiencies, they were con-cerned that those deficiencies be cured so that the safety of the nuclear plant would not be jeopardized. However, there was no process by which ~ those concerns could be evaluated and resolved in a thoughtful and ap-propriate manner. Despite the fact that some of their observations were potentially valuable, applicant was procedurally deaf to their concerns. There also was no way for Mr. Walsh and Mr. Doyle to find out whether their particular concerns were being attended to, a fact that applicant has used in this proceeding to try to cast doubt on the credibility of their testimony.' In addition, there also is no way for us to determine at this time the extent to which applicant has made corrections in its designs 37Mr. Finneran tesafled that a CMC was issued on the potentially unstable support identified in 1981 but that an NCR was not untion. Tr. 4890-93. 5s Tr. 4893 (Finneran) 59 We are not aware of any program by which applicant trends " deficiencies" fourut in CMCJ. 88 [ Applicant's Findings at 16-17; see a6e SIT Report at 10. For the purpose of this discusson, we accept applicen's description of the sTRUDL Group and see no need to address CASE's claim that the group's rseponabilities exceeded what applicant states. Compere CASE's Findings, Chapter XxlV. 'l ee, e.g.. Applicant's Findings at 45: " CASE's witnesses had only a timited knowledge by virtue of S their limited roles in the entire design process for pipe supports and were unaware of measures beyond their scope of responsbelity to idenufy and correct unstable supports

• j i

i 1425 I 7 .v . g.. -b

• f..

,e. cp 'l ~ ,a., l ~ an.; I ,p- ,9,*. ~ s I i g

=_ m -~:&.:~........--... .....: w - l i a 4 h-i solely under pressure from this litigation rather than as part ofits routine design process.'2 1. C. SIT Findlass The SIT's failure to appreciate the need for a quality assurance system to promptly resolve design deficiencies led it to be too gentle with applicant. The period of inspection for the SIT Report was October 13 to December 2,1982.') At that time, one year and ten months after the first CMC on instability, applicant had "no explicit design guidelines addresslinal overall stability"; it was relying on "the normal iterative design and review process "** which contains no procedures that require 7' any consideration for stability probl ms.'5 In addition, applicant hdti only " begun to assess the stability of non-rigid box frame supports."*' Al-though applicant has now undertaken to assess all.such supports for stability, the SIT found it had not yet decided which of three design op-tions to employ. Apparently this problem is still handled under appli. cant's design modification process rather than its nonconformance monitoring system. In one pipe analysis group, the design modification ~' process had not even progressed to the point that pipe support instabili-ties could be quantified.'8 With respect to the changes that were promised, applicant's failure to deal promptly with the stability problem required that the NRC staff would have to come back to vetify that the prondsed changes were completed." Furthermore, applicant told the SIT that it did not need to conduct a stability reassessment of the use of non rigid U-bolt supports.The SIT Report erroneously accepted applicant's argument that if U-bolts on 62Although the SIT Report stated in several places that applicant had independently identined a Walsh/Doyle concern in its design process, the report contains no docurnentation substantiating that the descovery was independent of the Walsh/Doyle allegations. Mr. Chen clarined the masams of the stT Resort statements somewhat Tr. 6661. We interpret his statement On response to a wordy and some-what confunns question from the Board) to indicate that he was not sure whether the design process wocid have found these problems were it not for Mr. Walsh and Mr. Doyle. 63 SIT Report at 2. MMun. 'SWe are not reassured by the SIT's rehance on "mandard indussry design practice" as an excuse that M.' Q ^ ~ f permits applicant to do without any guidelines on pipe stability. M "M 64 Applicant's Findings at 13 a.6, casar Tr. 709192. we reiset.ppannat's suggesuon that the percent- [.*, a- ~ 61 g age of instabihties would be the same within the group that has not analysed its supports as it is within j the arm two groups. There is no paracuiar reason to accept that kind or._. 2 prior to compie. .k '

• tion of the design review.

'x ~

• M
• ^

10M at 29. ~ 1426 3 [ q

• 4 y y' -

% i [, I= < 9

• a 8

I J

• L A

h N s ag, 2-z.-:,.yiv/r.w" p... . ~. y'....:.s e. O. m U'. v % t a ; : ; P l ??: ? f 3. f._ Q.fw ~~w :. y w m* ;:.w;GM :& w*fl-

c. m s.s., -.. r f.-

.w:.. - ) ' M3-{,.Q:~" ' ' ' m g7

• i 9,",G

".W-;; V:;. :,, _, . n. .a ~.

- %},.

f r c ; ,,c m,n;. 2j m- . y - y. -fs -, m, 9 W==-x 2 a - y- ~ e, ,,..,,I

-q-

~ p- ,9,x r e j "' N>- s-

', ' l ~. - - f. i ,".A 3 O - " -,3 - these supports were cinched down on the pipe those U-bolts "will not t become loose during service life" and the concern "about the instability ~ of the non-rigid U-bolt supports is resolved."" There is no indication in ~ our record of what discussion or documentation persuaded the stafT that i, the cinching down of U bolts was an adequate resolution of this problem. ' ~ We agree with CASE that "the mere fact that a friction on a point of a U bolt exists does not indicate that the friction is sufficient to prevent e rotation under the most adverse design conditions...."72 We have no n E analyses before us that establish the adequacy of the friction forces de-veloped by a cinched down U-bolt. Furthermore, the applicant uses SA-307 steel in.U-bolts. This material has no design allowable under. the applicable American Society of Mechanical Engineers Boiler and ~ ' - Pressure Vessel Code (ASME Code) provisionsu when it is used in a ~ friction type connection.74 The reason there is no allowable for fnetion i type connections using SA-307 steel is explained in note I to the applica-ble table. The noten tates: s j. .o ..e Friction type connections loaded in shear are not permitted. The amount of clamp-ing force developed by SA-307 bolts is unpredictable and generally insufTsient to prevent complete slippage. ~ This argument did not confuse the Board, differentiatine us from ^ applicanL 6 We were persuaded by this rather straightforwax srgument 1 7 that SA-307 bolts cannot be relied on in a U-bolt to cinch down a pipe and prevent its rotation by the use of friction.77 The fact that this mate-rial was incorporated into the U-bolts is not surprising, since they were not initially designed to be cinched down and to develop friction forces ~' i to hold the pipe. What appears to have happened, according to this information, is that applicant's engineers have adopted an impermissible fix for a stability problem that was identified by Mr. Walsh and Mr. Doyle. 75IL 72 CASE's Findings at III-7. 73Conformance to the July 1974 and winter 1974 Addenda Editions of the AsME Sciler and Pressure Vessel Code (AsME Code) is mandatory.10 C.F.R. t 50.55a(d).See i 3.2.2 of the applicant's FsAR and i 3.2.2 of the safety Evaluation Report for Comanche Peak (september 3.1974). 74 CASE Exhibit 752 contains page 387 of Appendix XVil of the AsME Code. That pese contains a table concerning " Allowable Bolt Tension and shear Stresses." H14 at 388. 76Apptcant's Reply at 15 found this argument confusing. 77 we also accept Mr. Doyle's testimony that the thermal expension of pipes will cause cinched-up U-bolts to yield so that, aner many cycles of heating and cooling, the frictional forces generated by the U. bolts will be reduced. CASE Exhibit 763 at 13-14, cartnr CASE Exhibit 6698 (Doyle) at 318 21. t + O 1427 '- ~ p ,-'p". [*.,,'__7 + I }..' ' N.; q. W^a - af33:r m: - 4 s*a ,-: 7 1 ' b?, \\ [ g

y y.:.

g' Q..,

- 4 Q -... ..... =..... ~. - ~. _...... - ~~:L I I D. Conclusion We do not consider the " iterative design process" to be satisfactory fulfillment of the Appendix B Part 50 requirement to promptly identify and correct design deficiencies. Although Gibbs & Hill apparently has identified some gross instability problems in the course of its participa-tion in this process, the iterative design process does not assign to Gibbs l & Hill the responsibility to review each support for stability.78 Furthermore, the iterative design process has no promptness require-i' ments other than that it be completed before the plant is completed. It is unsatisfactory for: " trending" deficiencies, recording problems spotted by individual employees, or seeking to determine and eliminate the ccuses of deficiencies. J In this section of our memorandum, we have discussed one engineer-ing problem with respect to which compliance with Part 50 would have been helpful. In our review of other engineering problems raised by CASE, we have become convinced that there are' other problems, some of which are discussed later in this memorandum, that would have been addressed in a more timely fashion and might have been resolved more appropriately if applicant had a formal, prompt system for quality assur-ance of design. An extreme example is that in 1981 the staff conducted an audit of weld designs at Comanche Peak that ultimately led to the dis-covery of 382 supports that did not meet minimum ASME Code require-I- ments for fillet welds." These changes, which required structural i alterations, were documented on CMCs and not NCRs," with the conse-quence that there apparently was no attempt to identify the cause of this error or to prevent its repetition. Applicant and staff would have us decide that applicant's stability reassessment program will resolve the stability problem, but we are unable to accept this suggestion. The progrrm's procedures have not been presented to the Board and the progra n is in the control of the ~ " highly qualified" engineers who were responsible for the review of others whose work has been characterized by applicant and staff as Il-l.' "somewhat knowledgeable" and "somewhat inexperienced."8 Although these individuals are undoubtedly qualified, competent engineers, we . s. n ' WTr. 6721 (Chen " believes" he has seen such analyses); Tr. 7015-17 (it is Taylor's " understanding" that Gibbs & Hill looks for gross error). There is no direct testimony on this point from Gibbs & Hill or from applicant's design group personnel. M SIT Report at $1, cfrmt Inspection No. 99900531/8101 (November 17 20,1981); see CASE's Fmd. y ings at V.7. ug 81 Tr. 7167-69 (vega and Finneran); Tr. 4%2-65 (Mr. Finneran); Tr. 6406 (Mr. Taylor). ,y [; e t ~~ 1428 _ ~ - - -- l ~ w.. -

. ~-

+ -. y. ' m.p,.,,.** 7, .p. P ' 73]..p.. ". ] [ f ."'],. W.F [ J f cd g I,, cf f7 - M,.'_..,...m g,f.,,P., +, ?k, *, JM I 'i h' ( bh,~ * \\(*>l [,, ,35, y*

e,'c,,' '.'r O f..M - 7.*b; r.

...?M+ ' J.Mf ?- E#<'.I--[E Y.N '..

• e '

\\..' L. ?. ,./. e;.! - .? Gp ,,x ~ > y;. c '>..'.-) '. ;y f;l'. (. M. [. t . ' */ r l ',' & . + l;Y.. -.'s. * 'Pi +..... 3 :. -2 ??$*j l N h ' - ll:v-l' $ '

• 0.q r *'

%Cv '..y ~ p..s.7 ? .v W yp; 1.m.f.ziW'.& .". k'N.' $*W N'l'? j k&s' %c ~' .r., .,w '*,-f a: V, x: :., W,qpe -.3-, - .iq: ,. Qf,, ' s ~ ,'y d';. ,'s h' GQff... e. ,e c' y,t. ,s t,,

, l 2;

-_J -a [ ~ are not content to rely entirely on their work to correct problems that have arisen under their supervision and control. Having found applicant in noncompliance with Appendix B, we must >7 decide what implications that has for this proceeding. Those implications are discussed below. IV. SPECIFIC DESIGN PROBLEMS In addition to questions about the quality assurance program for design, CASE has raised many specific design problems, presented to the Board in detail. CASE's Findings, which contain the discussion of these problems, is a document that is two inches thick and that is filled ~ with technical arguments and citations to codes, regulations and testimo-ny (and to some extra-record material). We appreciate the difficulty that the opposing parties faced when con-4

j.,

fronted by this document. In places, it is in error. In other places, it is ~ overly rhetorical or irrelevant. However, it reflects the work of two quali-fled engineers and cannot readily be discounted. To be sure that it is appreciated, it must be read. To be sure that the Board not be misled by it, applicant needed to respond to it. It is our observation that there are several places in this document where valid points are made, without ad-1 equate rebuttal elsewhere in our record. The design errors, indicated on i the present state of our record and pointed out by CASE, cause us to be concerned about the quality of de:ign of Comanche Peak. To appreciate the significance of the deficiencies that this Bcard is about to note, it is important to realize that Mr. Walsh and Mr. Doyle were only two people, with limited access to design documents even within their sphere of responsibility, which was participation in the STRUDL Group. With this limited window on the design process, any problems that they spotted and that applicant did not resolve may have implications for'the quality of design of the remainder of the plant. To be sure, the pipe support design groups involved in the questioned ac-c ~ tivities were not involved in other design processes. To that extent, the Walsh/Doyle observations lack generality. However, applicant's inability to spot and resolve pipe support design problems has possible implica-tions for the remainder of the plant.' A. Previously Discussed Problems In two previous decisions, we have discussed design allegations made by Walsh/Doyle. In LBP-83-33,18 NRC 27 (1983) we concluded that j the ASME Code did not require the analysis of thermal stresses which j 1429 r l i.. ~ + e / 4 y U i N.', - 'N '

DYGL ' ' . : n. -~..a... 5 occurred within pipe support members as the result of LOCA environ-mental conditions. We also concluded that free-end displacement, 'd fined as forces exerted on the supports because of the expansion of the pipes and as forces exerted on the pipes because of the expansion of the supports, would need to be considered. Thus, we partially dismissed one of the Walsh/Doyle design concerns. In LBP-83-63,18 NRC 759 (1983) we found that applicant had com-plied with the ASME Code in its analysis of supports manufactured from A-500 Steel but that it had not demonstrated that its pipe supports have adequate safety margins, considering that there was a 15% error in the code allowable for that grade of steel. We required that applicant submit an analysis demonstrating the safety margins for limiting cases in which A-500 Steel was used and that it attempt to " quantify the combined effect of errors in code values... and othcr variations typically covered by safety factors." Id. at 764 (emphasis in original). In this opinion, above, we have already addressed specific design argu-1 ments dealing with pipe support instability and with the use of U-bolts as friction connections. With respect to instability, there seems to be I agreement by applicant with the substantive position taken by CASE. J. Applicant has undertaken to correct conditions ofinstability. Hence, the only problem we found in that general area of instability was the adequa-cy of the design quality control process to contribute to the identification and correction process in a timely fashion. We did find a design problem, however, with respect to one aspect ofinstability: the use of SA-307 steel in friction connections. We conclude from the evidence t that this is a design error, in contradiction to the ASME Code. Applicant f [ has not demonstrated the validity of cinching of U-bolts made of SA-307 steel as an adequate design correction for the purpose of pre-l,~' i venting rotation. In the following sections of our memorandum we will deal with further design problems, with emphasis on applicant's errors. This organization y of our decision is not intended to overlook the fact that there are areas in which we would sustain applicant. However, based on our record, we consider design error to be sufficiently prevalent to require independent

h. -

means of assuring ourselves of the quality of design of Comanche Peak.- I < ~.. B. Stresses on Pipes Caused by Cinching Up U-Bolts k, N ' b i force on a pipe to constrain rotation. However, CASE's U-bolt allega-I " Z.. We have already discussed why SA-307 U-bolts may not exert enough ~ N tions go beyond that narrow concern. We have not discussed whether I . - e the pretensioning of the U-bolts and the thermal expansion of the pipe ['. ~

j..

b -c n 1430 - - + r . f. q n. , g'

• ~1 g

.E <,; ll - } ^; - _ > ' ~= ^.'* a p .e. g a g -n-- -~ m.o.,-,- vy - j~ m~ y -:.","' ". g. M f > T'* W *n ,-w",T.~=-~ r;m s ****;-v .= w , f. w :,' q ]- - ~ 8 .,w ,~ ,3, v .._ a.a ; '..,/. s n,, a y[O .y, j j ' *. L. s,,I (,i . 5 s ~ ~ .{ ,7 <,. /- (r [, ' # (( * ) f, 1" r b C' ' : P Y V "G "-.. . u.M OS M' ,t-y $7 2' b %.S' * @.7 DJ.; 1. '? -2 > 't 2;j:hn pjg' G 7c ',* ^ ^ W' L.'~-r

f. ) '. m '. '

-~.C 2 W-g&,j nM '9ln'%?.tc;D W ~ > W,:.l. ? a-

' ' ' ' =:

^ s x., r 1 g,. - L h '.*p"s % i.' W-,: %.'.\\, q*. .c. s '\\ ' M W'. m a m, e n 3 p' y'p:,,, g.g/g;;.: n l p g. g y';

• p

-"-[-+ jfg.p ; _. '.1.Y.h

. y, ?c '

~ 4 s ~ 1 y- '..,,, y. a. :,

~ %..,',

i c TM[-p 4 . o _a m. 11_

e x- .. _ ~.. _ i might overstress the bolt. Furthermore, note 1 to Table XVII-2461.1-1 of the ASME Code does not exclude the possibility that the U-bolt - i could exert sufficient clamping force on the pipe to cause substantial local stresses on the pipe. To the contrary, the note calls the amount of clamping force " unpredictable" and allows the possibility that substantial clamping force may be exerted. L CASE's Fimiings ] CASE's Findings on this point are instructive:82 3 The problem associated with cinching up the U-bolts is that this establishes three ~ mechanisms for inducing stress into the pipe wall and the U bolt instead of the one which was anticipated. The original mechanism which was anticipated was the loads as listed in the ou.put from the pipe stress run (the original design load). The two additional mechanisms are: (1) the stress induced into the U-bolt and the pipe by the torquing of the nuts to cinch up the U-bolt; and (2) the stress resulting from s J heating of the piping system (radial expansion) which, regardless of how little, will result in a differential temperature between the pipe and the U-bolt with a subse-4 quent tension induced on the U-bolt, a compression on the pipe, and some bending in the member which restrains the U-bolt. The stresses and displacement for the U-bolt, pipe, and involved structures are j therefore dependent on the three mechanisms involved - not merely the loading i as listed by the Pipe Stress Group (the original design load). 4 In the case of severe thermal constraint as is depicted in CASE Exhibit 669B i (Attachment to Doyle Deposition /restimony), items 14D through 14M and Item ~ j 12N, the thermal constraint induced stress may exceed all other considerations such I as the problems of mass on the pipe and mechanically induced loads. However, for a proper analysis, it is again the summation of all factors which induce stress and/or 4 displacement which must be considered. e In the May 4,1983, Surrebuttal Testimony of Mr. Doyle (CASE Exhibit 763 at 11 12) it is proved by the use of standard mathematical means that the stresses de-veloped due to the Applicants' cinching procedures alone mean that the stress levels will exceed manufacturer's allowables, as determined by converting load to stress... CASE then proceeds to review detailed calculations through which Mr. Doyle alleged that the force on the U-bolt from torquing alone will be either 8472 pounds, which exceeds its allowable, or.5333 pounds, which is just below its allowable.82 Mr. Doyle also presents detailed cal-culations of the amount of thermal expansion that would occur even if 82 CASE's Findings at IV-8, IV-12-IV-14. 8314. at IV 13, IV.14. 1431 j l .._.1._m_.__,_..-. _._ m. y m.,,. _ - _g e , Jy g ..g

m L-.: a --. ..w. I I l i 900-degree insulation surrounded the pipe and clamp; he points out that these stresses are additive to the mechanical stresses from torquing.84 The principal effect that Mr. Doyle expects is failure of the U-bolt itself, representing a failure of the clamp, a transfer ofloads to other supports and a change in the fundamental frequency of the piping system.85 Hcwever, he also is concerned about the effect of induced loadings on piping.8' These loadings are required to be considered by ASME Code i NB-3645, " attachments" which requires the design of external attach-ments to pipe in a way that will avoid a flattening of the pipe, excessive localized bending stresses or harmful thermal gradients in the pipe wall.8'- 2. Analysis ~ Mr. Doyle'.s detailed calculations are not answered on our record. Instead, applicant relies on the SIT Report,88 which cites " analyses per- ~ fermed by the Special Inspection Team" and " calculations performed by the Special Inspection Team" but never introduced into the record.8' Consequently, we conclude that Mr. Doyle's concerns about excessive stresses on the U-bolts may be valid. The SIT was satisfied that applicant could ignore thermal movement in the unrestrained direction of 1/16 inch or less." It also was satisfied that the maximum radial growth of U bolts would be less than 1/32 of in inch and that this would be acceptable. However, in the absence of i any direct challenge to Mr. Doyle's calculations and in the absence of tny data supporting the staft's position, the applicant's burden of proof has not been met. Furthermore, the staff's principal witness on pipe supports, Dr. Chen, admitted that the SIT Report never analyzed the load combination which is the basis for Mr. Doyle's testimony.'2 The basis for this omis-sion was " engineering judgment and usual industry pts.ctice."" However, we cannot accept this generalization in light of the specific cal-culations tendered by Mr. Doyle. Applicant has the burden of proof of ( - . ' demonstrating that its plant has been designed within applicable code h 84 It at IV.16. 85/d at IV.17. 8614 at IV-15. ~ 87N2ither applicant nor stafr have discussed Code interpretation in this context. as Applicar.t's Findings at 49. * 'N^ 8' SIT Report at 30,33. 90/d at 30-31. 'I14 at 32 33. M Tr.6742. n id ~ ~ 1432 e g

• a s. ~,.,.,-

~ "Y Y,W"((Ka*7 *., ;. a- ~. ~. ~' i.~' ' m-, e W t % h. y p.:,.;. v...~. ~ z

~ O..,. :

w 'n ;. .^

1. %%:.g v. ; e. h ~

z.u - - j?Yk,W!:.2.,.*, L I ~ ' '.l r.. y?: 1 '

r..^. u - d '.

- ',q; ' ~ .l. ' *? ]r, i ~ '. ~ s ' ~ - z: 2 L =a >Q;Q[; [,M'ty' 'p ' ' b,.. ' ' ". 2

' y

l : ',

.. cr.. .wt y' p : Ly., ~ ~ " s ? [. ~ y? ". ' '.' - ^ .g

• a s-

. z

' * ; Q f. ' ~ s ~ + i ~^ ~

n 9 .a. ,( .;*.s. S allowables. It is not free to rely on judgment or practice to answer partic-ularized engineering arguments. It must demonstrate that those allow-ables have been met. While engineering judgment must necessarily be employed in designing a nuclear plant, we expect the basis for engineer-ing judgment to be explained on our record and we are unable :a accept bald, unsupported statements ofjudgment. In this instance, we also are troubled by an apparent inconsistency in staffs position. StatT asserts that the overtensioning of U-bolts can be detected by field inspection. However, the field inspection referred to i-will occur prior to the heating of the pipe and obviously under conditions where seismic forces cannot be observed.'5 Hence, the inspection will be useless to assure that the U bolt will perform adequately under condi-tions of combined load. ~ The amount of force with which U-bolts are cinched down may lead x. to further complications, relating to Board Notification 82-105A. Pages IV-4 and IV-5 of that Notice state: The dynamic interaction between the pipe and pipe clamp is a complex design 1 problem. From a design standpoint, there are many uncertainties that could affect the actual system response such as consideration of total support system flexibility, mechanical non-linearities, construction and installation tolerances, and uncertain-t ties in the dynamic loading itself. It is beyond the scope of this report to discuss the - 1[ clamp-to-piping responses to these various factors. However, the report will focus on those local dynamic effects on the piping that can be attributed primarily to the clamp attachment that, in general, are not explicitly evaluated by piping designers. The computer programs used for piping dynamic analyses generally consider the pipe as a lumped mass system connected by structural elements with cross-sectional properties equivalent to that of a pipe defined at the center line of the structural element. Piping st.pports are modelled as springs (or infinitely rigid elements) which are connected to the centerline of the structural elements. Thus, localized pipe stresses due to clamp-pipe interaction are not computed using this lumped mass-a spring piping system analytical method. Clamp-induced loads on the pipe should be evaluated as a locally distributed or a concentrated load on a cylindrical shell using an appropriate method of analysis. The resulting local stresses should be added to c the stresses calculated by the lumped mass-spring piping model which calculates c only beam bending modes. During dynamic applied loadings, local pipe stresses induced by the pipe clamp could be significant depending on several factors including clamp to pipe surface contact, load magnitude and frequency, and support orientation to pipe. It has recently been established by the staff that certain designs rely on a preload of the clamp onto the pipe in order to achieve large stiffness requirements in the ~ '4 SIT Report at 32; Tr. 6742 (Chen). See aho Applicant's Findings at 49 (overtightening would cause strippins). 95 Tr. 6746 (Chen); see CASE's Findings at IV-18. 1433 ] ~n c x

D?h rys'a j

.-a a

• 4 C-

~ f.p j~ 'l ~ 1..

• u q 14 L'

R: ?

a p, ~' e u ; u :._. _.. _ - -.a .-- m m -- -. clamp. The large stiffnesses are needed to assure that the clamp will not lift off the pipe during dynamic loadings. When the stiffness requirements become large, the required preload also becomes large resulting in a radially compressive load on the j pipe. The resulting local membrane and bending stresses in the pipe due to the preload when properly applied is deflection limited and, thus, self-limiting. Local yielding of the pipe can reduce the pteload condition which caused the pipe stress to occur.The l preload is a unique situation which should be evaluated further because large defor. I, mations of the pipe resulting from an initial preload application could be further in-l creased when the piping is brought to hot conditions. In addition, subsequent reap- , plication of the preload to correct for preload relaxation could cause a ratcheting effect in the pipe wall. The Board's first concern about this notice is that there are about twenty stiff pipe supports at Comanche Peak." The staff's concern, which is very similar to CASE's concerns about pipe supports, applies to these supports, for which localized pipe stresses have been ignored. Unlike the staff, we consider these supports to fall within CASE's con-cern even though these particular supports have not been identified by it. We find that, despite the fact that CASE has been arguing that local-ized pipe stresses from supports must be considered, applicant failed to idIntify supports with respect to which CASE was clearly right. Engi-neers who were sufficiently sensitive to plant safety would have realized thtt the only reason for thinking CASE's concerns to be unfounded was that the " soft" supports did not generate enough force. These same engi-j neers would have realized that this reason for lack of concern in the identified supports was a real concern for other supports. l But our concern goes further. CASE has stated, in testimony that has [ not been specifically rebutted, that certain " soft" box frames may gener-ate a thermal expansion force of almost fourteen tons, most of which will be seen by the pipe. It has also stated that the prestressing of U-bolts may generate a force of between 5333 pounds and 8472 pounds. Th se forces are not vastly different from those mentioned in the Board Notification." Consequently, we have no factual basis for accepting staff's testimony, including the testimony of the principal author of the Board Notification, that the stiff clamp-derived concerns of the.Notifica-tion are inapplicable to " soft supports" at Comanche. The record does not provide specific analysis to rebut the substantial loads calculated by

• Affidavit of W. Paul Chen (Novernber 4.1983) at 4.

.l, ; ~. _. [' '7 CASE Exhibit 763 at 14-15; CASE's Findings at IV 17. ~ ' '8 CASE Exhibit 763 at 11 12; CASE Exhibit 6693 at 10. - " Board Notification 32-105A notes with concern preloading stresses of $104 poi and 5169 poi, with re. spect to rTT Grinnett supports. 7 P b 1434 e M' b i j., " .} +,

• j.%,,

4' 'g ,F x - c. ~, ? ~

• I 7

7 78'"****{U

• h,,* = w : n ;.n.".. v :,. : '.

3~:

• g

~,.,u'. R, 2 % y;aygs.y::;, gh. ~r L ,e'.,~,ps / r e ..,c-. <,, : c., ~.q: q ~

• ?

.l . i

• f b

. l i. m a w:,u.. w ~. mw :~. . n Y,. ... w 5 'E ,kN b N U-y l !'j. ~' 1: n, 'f '* ? ~ t ip q:pm,;v. e. u.y .c ~ ' sp .s. v. ' ~. ~ pf:,% ' f, ~ L-N. 2: -.~ -} v. l

_,~ t Mr. Doyle. To us, the concerns derived from the stiff-clamp context - r have not been demonstrated to be inapplicable here.1" The Board Notification provides us with still another reason to be concerned. The Notice found that ITT Grinnell does not calculate piping ~; stresses because that is the responsibility of the piping designers.lo That J accords with our understanding of how the iterative pipe desigit process works generally at Comanche Peak, with one word of cautioli. We do not think the iterative design process places the responsibility for cal-culating local pipe stresses on any group, including Gibbs & Hill. Consequently, we are not aware of any evidence that these forces were considered in the pipe design process at Comanche Peak. This is a prob-lem similar to our concern about pipe support stability, which we found above did not fall within any group's assigned responsibilities until the applicant decided to undertake a stability reassessment program. C. American Welding Society (AWS) Code ~ s CASE alleges that there are criteria for welding design that are not specified anywhere within the ASME Code and it suggests that the most authoritative source for those criteria is the AWS Code.'" CASE offers its Exhibit 716, consisting of Section XI of the Pipe Support Engineering ~ (PSE) Guidelines. We find that the cited document references American Welding Society Code Dl.1, as CASE says it does; furthermore, that document does contain procedures for welding pipe to pipe. However, applicant acknowledges that it sometimes refers to the AWS Code,tm contesting only whether it is legally required to apply its provisions. Hence, the true debate is over the extent to which AWS Coce concerns are met at Comanche Peak and not over whether that Code " applies," in the sense of formal adoption of that Code by the Commission. Provi-sions of the AWS Code are relevant to a decision about whether ASME Code provisions have been " supplemented or modified as necessary to assure a quality product," as required by General Design Criterion 1. l# But see Chen Affidavit at 3 (" stresses imposed by conventional U-bolts and box frames are signift-cantly lower than that which may be potentially induced by the staff pipe clamps"); and Affidavit of Dayd Terno (stresses from stifTclamps are "significantly higher" than for conventional clamps). 101 Board Notirication 82105A at V.22. See also CASE Exhibit 669 (Doyle) at 318-21. I IMCAsE's Findings. Chapter V. f IU Applicants' Bnef Regarding Board Inquiry into Applicability of Aws and AsME Codes to Welding ( on Pipe supprwts at Comanche Peak. october 28,1983 (Applicant's Aws Brie 0 at 7. 1435 i 1 i e' N c .n

• ~
• Q R

~ i a

r.,.

e ...._m.._.._.. _...sm.-_.-. A.-_.. i i t 1. CASE's Specyic Allegations CASE lists the following AWS Code provisions as applicable to non-nuclear facilities and, by inference, to nuclear facilities:* (1) pre-heat requirements for welds on plates over % inch thick, (2) drag angle and w:rk angles (which limit the space allowed for the welder to function), (3) Beta f;ctor for tube-to-tube weldt, (4) multiplication factor and reduction factors for skewed "T" weld joints, (5) ; imitations on angularity for skewed "T" joints, (6) cal-culations for punching (actually a reduction factor for the weld) shear on step tube joints, (7) lap joint requirements, (8) design procedure forjoint of tube to tube with Beta equal to 1.0, (9) calculation for effective throat of flair bevel welds, (10) limita-tions on weld sizes relative to plate thickness, etc., etc. CASE states that a portion of the SIT Report, which sets forth appli-cant's criteria for a combination bevel and fillet partial penetration weld indicates that applicant has now adopted the Beta provisions cited by Mr. Doyle almost two years ago.l" However, the SIT Report does not m:ntion the date that applicant adopted these criteria so it is not clear, in light of applicant's statements that the AWS Code does not apply to Comanche Peak, to what extent the Comanche Peak plant complies with the Beta requirement." Although the staff has conducted an inspection to ASME Appendix XVII requirements, this is not directly responsive to this argument about AWS requirements, including the Beta requirement.5" O CASE also has a more specific point related io criteria apparently adopted by applicant pursuant to a September 1982 study by Korol and Mirza." Mr. Doyle's testimony questions whether NPSI rear brackets (three examples of which are listed in the testimony) and two specifically described supports, offered as examples, comply with the Korol and Mirza criterion of a width ratio at least as great as 0.6.3" CASE also refer-a cnces Mr. Doyle's testimony that the SIT incorrectly evaluated weld 7- ' sizes on two drawings because those drawings show % inch fillet welds when the minimum weld requirements are 3/8 inch or 5/16 inch.l'O tr ~ y f ^ ); , i'

• Case's Findings at V-3 to V.4.

~ 105 N. at v-4.

i. :. ; ::. '

r i. 106Ser SIT Report at 49. ~ 307See SIT Report at 50-51 concernias staffinspections that have been conducted. [ ',, ' los srr Report at 50.

.!.. ' ~ ~- c

/ le CASE Exhibit 763 at 26. 330 CASE Exhuit 763. (There is a e, .. ' ? error in CASE's Findings at V-6 which causes one of. the support numbers to difler from the number cited by the SIT Report but it is our understandias that Mr. Doyle was refernas to the same supports as were referenced by SIT.) We noes that the SIT Report ^ 7 does not sense the h of welds or the criteria apphed, so there has been no direct sospones to the specific compissat that CASE has smede. .~ w

1. A 1436

'.'i., I c. ,-s ;, e r =.- ~ ~ . ~ - ?"; -..' :-- J - (}".~ :.T~~' *!? .l* T.f.~ W.

• i d, y,

i -g .,J.A.W.": ',;', f%'

• ~h.

r.

J"U~^(.,

'W g,<.W f. -. 4 c.. cw;!;5?k;;,. ' li.._ '. = . g s. Q ~ %:* 7. w -y'. W.' W','. W l . ' U' : ~ ,.y J..... '1 ^ .' s. .u. - ' v.-s. n.' - - ~ J.' s o.. .e .b.. 'M M d' '.,.'%y y x. & bg:M.5.'kM ;%y:J.)*. ':' .'-S y' N. j'y q':,'.L;*i :.,l?;':;Q; G; '3 2 G M &, ;; '.; ' '. r Y;*: -r.. ~. L[e'g'., J ' * :; '. _ f::;g. [ ; u,-f.g;; ~y 'u.- M,. L.y _.g 3' g %p;....,. x

m.

,I y' - JG s, s. 1 , k ' ' S gg,,, ' -., 1 r '< -,, y ]' q .[ .. H.,. q,., ( ~ (i%

• h, ' '

b; g,.. _. E*f_,,_ _ _ _

aoe @ ~ ' CASE also faulted the SIT Report for erroneously finding, without con-ferring with CASE, that a particular support number did not exist.HI Another important point made by CASE is that the SIT Report states that 382 supports were modified, in some unspecified way. CASE infers that the method of repair was " recapping," which is unacceptable."2 Since there was no NCR prepared on this matter, we are not sure wheth-er there is any construction record documenting the method of comply-l devoid of a response to this concern. ing with the CMC; however, even if such a record exists, our record is 1

2. Amlysk

~ Applicant's principal response to the CASE concerns is that it uses " qual (/ird" (emphasis in the original) welding procedures, pursuant to ASME Code Subsection NF-4311, which states that: ~ ' Only those welding processes which are capable of producing welds in accordance with the welding procedure qualification requirements of Section IX and this Subsec-tion (subsection NFl shall be used for welding Component Support materials or at-tachments thereto. [ASME Code Section III, Subsection NF-4311.lH3 i l - C Applicant contrasts this qualified welding process to the prequalification of procedures incorporated in the AWS Code.H'It points out that even the AWS Code permits deviations from its provisions for " successful qualification" conducted by the contractorus - a point conceded by CASE.He Applicant also has listed for the Board each of the AWS criteria listed by CASE, finding for us the Code sections that were referenced. With re-spect to the tube to tube punching requirement and the Beta i requirement, applicant references the SIT's finding of adequate tube-to-tube joint designsH7 but does not rebut any of the Doyle testimony,H8 i discussed above, concerning: (1) specific joints that do not meet AWS design requirements, and (2) specific design measurements that do not meet AWS requirements. With respect to the effective throat for flare bevel welds, applicant is correct in its comparison of its own proce-l til CASE's Findines at V.6, came CASE Exhibit 6698. Items 13X and 13Y. 112 Tt. 6249,626161 (Doyle); Tr. 7957 58 (Compton). 113 Cited exactly rrom Applicant's Aws Brierat 10. 114M. at i1 12. 138 Af. at 13. It' CASE Exlubis 669 (Doyle) at 116,118. I17Apphcant's AWs Brierat 16. tilCAsE's Findings at V.5 to V.7 contain the specific testimony that was not responded to. l l l i i 1437 1 l: L _.A [W 3 , ]>, l

27 l

.c* Q*, l l . r:h ~ a l I 8.1

e a a s: N-J~1.-,-,.

..-~._.2..

~...a w..a.. a.... f dures"' to the AWS Code; accordingly, applicant has satisfied the Board that there is no problem there. l ~ Applicant does not respond at all to seven different AWS criteria ad-venced by CASE because "the AWS Code expressly excludes them l fr:m applicability to welding procedures which are qualified by tests."820 6 The problem with this response is that it leaves the Board in the dark as j to which of these Code provisions has been demonstrated nonapplicable bec:use of specific qualifying tests. Since these criteria, advanced by i CASE, represent reference material that is suggestive for plant design, we think it incumbent on the applicant to carry its burden of proof that etch criterion has been properly considered in its qualification procedures. With respect to one of the AWS criteria, " drag angle and work angles (which limit the space allowed for the welder to function)," - referred to by applicant as " groove angles"828 - we have special curiosity. We c:nnot imagine how applicant may have performed qualification tests to bypass this criterion. Arguably, this would have required the use of very 11rge or odd-shaped welders to see if they could function adequately in smiller work spaces. Applicant's answer with respect to weld cracking also is unacceptable. CASE alleges that the repair of undersized welds apparently was done by performing a cap weld.822 Applicant answers that the ASME Code re-quires "the qualification of every welding procedure by extensive testing and examination to assure adequate strength and integrity of the weld." However, applicant has not responded to CASE's concern about cap welds and has not stated that the method for repair of undersized welds, by adding additional weld materi'al, has been qualified by test. When CASE presents us with specifics, we are not satisfied when applicant re-sponds with generalities. We are concerned that specific matters raised by CASE as falling within the AWS Code, may not have been properly addressed by appli-i + cant in the design of Comanche Peak. Applicant has not carried its ., [. burden of proof on this set ofissues. ., ( *

• 7 -.

II' CASE Exhibit 716 at 7. ..,, J. ~ 4 - "/ 120 Applicant's AWs Brief at 15. 121Apphcant's AwS Bnef at 16. 122At CASE's Brief v.7 to V.8. a vanety of record and extra-record materials are cited. we have con-sidered only the Doyle testimony and the Compton testimony. Although her. Doyle has modestly sensed that he is not a weideng **espert. he has demonstrated enough knowledge of welding codes and reemre-i mems for us.o give has testimony soine weight. l ~ 143s l '>v i l GG*. t

1. *

• d

+ g s I

• M+*'".

.5.. W ",. w-,. _.: p,,,; . a.. pM: n.,, c .na . y c...;..,s.,; ;.-, ass

• u

~. c.e, . n

.m -

+ +, 2 . v.. t,; J. r. ; , r.,; w, :.

n..'. g y

,,7 q,,.p c.

e..., -...- + *

~... e.m. ..y - < ?' ~~; V "~ ; g l.. %f. , ?,.- n. ' ,b %jf, A,', 2.. ' ' + f a '. %

j d.f.. 6 ' ;G,.o *

' -,,

?

re-c 5

m y,4 - " ~ *. s ?* ' ~ ); 3 /,., e, & @ e- - r;g y \\ / Mf -'. . [, '. _ y;

O ~ ~ = 3. Analysis of the Steff's Response ~ l The staff attempted to respond to the Board's concerns about the AWS Code by filing the affidavit of Dr. Jai Raj N. Rajan, who has a Ph.D. with a major in fluid mechanics from Duke University.823 This af-fidavit adds two considerations not raised by applicant: (1) the state-ment by Dr. Rajan that compliance with the ASME Code and with the AWS Code produces welds of comparable strength but that the Codes have different conceptual approaches,824 and (2) the following statement i ~ concerning the nature of qualification procedures: Qualincation of welding procedures involved testing or examination of a sample of welds which must be fabricated by the construction organization (for ASME) in ac-cordance with the procedure to be qualified, in order to assure that the weld possesses the required properties for its intended application. ~ 4. He also clarified the relationship between the two Codes, stating that 3.- several (but not all) of the criteria cited by Doyle are not explicitly provided for in the ASME Code.i25 } 4. Conclusion The essential conflict among the parties is whether the qualification of d. j welds has been adequate to assure that each of CASE's concerns, stem-ming from the AWS Code, has been taken care of. It is clear that if the qualification procedures cover these matters or provide reasons for ignoring them, then CASE's argument is without merit.' However, the AWS Code contains provisions intended to embody sound welding prac-tice and all our record contains is generalizations that boil down to the fact that the AWS Code and ASME Code have different approaches. Pursuant to the ASME Code, a sample of welds has been tested in a qualification program, but the characteristics of that sample of welds and i ~ of the qualification program have not been discussed; nor does our record contain a logical basis for concluding that each of the AWS con-1 cerns have been obviated by qualification tests. We are sympathetic with applicant's and staffs desire to avoid such a complex task of proof. We ourselves are not anxious to undertake such a burden, either. However, we cannot accept an argument that well-recognized welding standuds, embodied in an industry code, may be 123 NaC Stafr Response to Board Question Regarding Applicable Welding Codes at CPsEs. october 18, 1983 (Staff's AWs Brien. 124 Rajan Affidavit at 4-5. 125 R@ Affidavit at 3. 1439 3 ,-,,D x. . EfE.. } l, s. av a n, y_ -e +8"T+4

9:;.: .M

.~ ~.

t I j waived because of a qualification program about which we are totally in i J the dark. l On balance, after considering all the arguments on this subject, we i ~ find that applicant has not met its burden of proof on the principal thrust of CASE's AWS concerns. 1 D. Upper Lateral Restraint Beam 1 l CASE has called into question the safety of the upper lateral restraint beam, whose primary purpose is to help to resist blowdown loads that m y exist within the steam generator in the event of a LOCA.82' The CASE allegation is that when the beam is heated during a LOCA it will expand about 0.24 inch, creating a free-end displacement between.the steel beam and the adjacent concrete.327 This constraint of free-end dis-placement must be considered by applicant in the design of its plant,128 but CASE alleges that applicant's analysis of the upper lateral restraint w:s incorrect. We find that CASE's allegations about an incorrect analysis of the upper lateral restraint are meritorious. CASE's first concern was that ap-l plicant made an error in its graphical technique (iterative analysis) for analyzing the upper lateral restraint. All parties agree that there was an error, in that the graphical technique was not carried to its proper conclu-h sion but was truncated, apparently without any explanation or notation on the design drawing.i2, it is our conclusion that the truncation of the graphical technique was an engineering error. Applicant's engineer commenced an analysis of f' f the beam and frame structure that sequentially assumes that one end of the beam is locked and the other is released, thereby redistributing the + moments in the beam.5" Although applicant's engineer knew how to !~ carry out this analysis properly,838 he did not do so. Had he done so, the criterion the engineer set for his own analysis would have been k, exceeded;'32 and the analyst himself considers this to have been an f. '.',, - crror.833 P Applicant and staff have attempted to excuse this error on two l grounds: that it was committed in documents prepared for a hearing s

t. _

~. h' 126 Tr. 6038 (vivirito). t 127See CASE's Findsnes at XIX-6. ~ 12s See LBP-83 33,18 NRC 27 (1983). U' 129 Tr. 6052-53 (Vivirito); Tr. 6051 54,6057, 6189-92 (Chen). h ~ IMTr. 6189 (Chen). r 7.; 331 Tr. 6190 (Chen). 132 Tr. 6026 27,6175 (Doyle). s 133 Tr. 6193 (Vivirito report of conversation with the analyst). I - 1440 ~ . s.. ~. s s. - + f 1.,., U g'm- .yr. "e*~'<l ; - - ,,. m v.: a x :.. ; w a wmm;gn.y.u. .' :.l "n ' ?,.; .U? ' '. '~'..; 2, .'*l'~. ..;,~ y V?&e.?k: ~ ' e~ C ~. a ;:, 4.?.my u ,- P ' W, t,; p ;.pa ; : s.~s:. x; :. C .+ w ..m u. ~

• V o :-4

.~ w .w r.. ' D'* * ? 'Y l lN l >.lI ,j' Y ~' v.'fi

• f.

n ,wm = ~- ww.e.

• : L

;?Q.'

l m '-. .e

• W:

.V q ~. ~.. 1" ..*2 '1-4 6.;. ;t i

... + .y. J fj and was not representative of what the analyst would have done if this s ^ were a real design drawing about to be used for plant construction, and that reanalysis shows that the. upper lateral restraint is safe. We reject both of these explanations. We consider applicant's assertion about the differential care paid to hearing documents and construction documents to be wholly without merit. Mr. Vivirito said:t34 You most understand,... that the calculations that you are seeing here are not design calculations to implement construction. The design calculations were pre. 4 ' pared in 1975. These are merely to illustrate that the walls will indeed reiieve the stresses. The degree to which you would be concerned with the accuracy of these calculations, since they are not actually calculations that are going to result in construction, are not the same as when you are preparing something and you are going to build it... The first error in this logic is that calculations done for confirmatory purposes, as these were, can result in a decision about whether or not to reconstruct a portion of the plant. Whenever such calculations are required, it is because questions have been raised; and those questions must be analyzed in a serious fashion. The second error in this logic is that this analysis was prepared for possible NRC use, related to Walsh/Doyle contentions, and should have been done with care because i of the applicant's responsibility to prepare full and accurate records.- Furthermore, these records were shown to NRC investigators and an error was likely to result in embarrassment for Gibbs & Hill. We reject applicant's position that less care was required for this document than for other design documents. We also are concerned that. applicant's analysis used incorrect wall thicknesses, under circumstances where there is no indication that the thicknesses employed in the analysis would have produced conservative results.835 This error in wall thicknesses, which the staff found to be an offsetting error, was nevertheless an error.tM _t Another concern of ours is that applicant too readily concluded that the 14,000 kips strain resulting from the 0.24 inch expansion of the upper lateral restraint beam was within the capacity of the concrete walls.837 Industry codes applicable to concrete do not support this t 334 Tr. 3055-56. 135 Tr. 6052 54; see Tr. 6133 (Doyle) (one wellis much more rigid and the other more flexible). 13' 11. 137Tt. 604150 (Vivirin). 1 1441 ) t =,. - C- ',a. .{ a ^ f w. ~ = li'}b_-l ~ -y .y. 1. ['b l l J - 'E " l

c - ,t ~ m.. rssertion, as one-time stresses of this kind exceed code values but are n:t covered by the codes.l38 In the event of a LOCA, the upper lateral rrstraint beam will expand approximately 0.24 inch. Since this expansion will be constrained by the concrete shield walls, the force on the walls is d; pendent on the stif1' ness of the beam and the walls. Under applicant's stiffness assumptions the force on the wall would be some 14,000 kips.83' A force of 14,000 kips is above the design allowables for the shield wall and CASE contends that the wall could fail. The applicant's witness, Mr. Vivirito, testified that in his judgment the effects on the w:ll would be minimal, that local cracking of the concrete would relieve the expansion stresses and they would drop to zero,8" and that NRC guidelines do not cover self-limiting stresses.148 ~ Since applicant has not introduced into our record any calculatio'ns of the effects of beam expansion on the wall, considering them ~ unnecessary,842 we were faced with balancing the engineering judgments of CASE's and applicant's witnesses. Consequently, we requested the staff witness, Dr. Chen, to look into the matter for us. In Dr. Chen's opinion neither the applicant nor the intervenor is correct. He does not agree with applicant that the local deformation of concrete would be sufficient to relieve the expansion stresses; instead, ~ he concludes that a load of 14,000 kips would exceed the design load of the walls, as reflected in applicant's calculations. However, Dr. Chen is of the opinion that the applicant has overestimated the stiffness of the walls and that a more reasonable value for wall stiffness would lead to much lower stresses, well within the allowable wall stresses. But the complex calculations required to demonstrate the lower wall stiffness have not been done.n*3 Furthermore, CASE's witness, Mr. Doyle, disa-grees with Dr. Chen's conclusions about wall stiffness.'** On balance, therefore, we are unable to accept these lower stiffness values. Dr. Chen also would approve the design of the upper lateral restraint beam because he believes applicant has used more conservative assump-tions about LOCA forces than are necessary. Applicant assumed that the ~ LOCA-induced heat-up of steel in the beam and the LOCA pressure ~ spike in the steam generator would be simultaneous, a condition under t -- 138 Tr. 6847 (Vivirito). 13' Tr. 6048 (Vivirito);Tr. 6061 (Chen); CASE Exhibit 761C at 5 (Doyle). ' II l# Tr. 6049 (Vivirito). 343 Tr. 6071 (Vivirito). 142Tr. 6072 (Vivirito). 6er are CASE's Findmss at X1x.9. cfrmr Tr. 6044 45 (Vivirito) concerning un. + ^ certainties in the properties of concrete. 143 Chen Afrulavit at 1314. 384 Tr. 6029. Doyle Afrulavit at 912. summarizins Mr. Doyle's earlier testimony about well thickness. + e 6 j I

• i r

s 4 ,p , g g y a.. h. f. . E c' m ~ v &w;t,h W !.k. %s v , l:,,& ' '

i %;Tl,

., ^ ? ' fy. L J. ' Q ' .. ' :N ' ' .i * ^^s' ' ' kh: i ~ w ]~., l7~ ~ + &.f.S.3 'p s,.t Ww& ;I & &.. i ' W*:~:c W;{ ' ~ s: s.~ %.,.M . ;. :. C nL n &* * :: i '<:w's e n;;a:,, '. Y ' ,N, 4 s Q <x,,. '41 , b t'h t.MNNG ' d,.[ , r

• b% c );g ~ ~.

,E 5I -s' i., [ 3 !+ jf,Ihh, ' N I ',' '. x.

.. w w I,;

'e 5 05-)h . w i OV'Pd'k t .sA"* 5

t.r (.S. a

d ,A '. ~ ' which both the concrete and the steal beam itself might fail.145 However, '. ~ the staff believes that these thermal and pressure forces will not coincide ~ during a LOCA,i'6 a position it asserts without presenting any evidence concerning possible LOCA scenarios. Because of the lack of supporting evidence, we decline to accept this conclusion, particularly without providing other parties with the opportunity for cross-examination on this entirely new evidence. In the face of the possibly conflicting engineering viewpoints of three different parties, we conclude that applicant has not demonstrated the adequacy ofits analysis of the upper lateral restraint beam. This conclu-sion contributes to our lack of confidence in the design of Comanche Peak. E. Errors Concerning Generic Stiffness Values Mr. Doyle alleged that applicant's use of generic stiffness values for. supports does not adequately represent actual stiffness values for the purpose of calculating piping system seismic response. The SIT found that applicant had not' demonstrated "that supports designed in accor-dance with Applicant's criteria and guidelines have sufficient stiffness to assure that they do not adversely affect the response of the piping system."i*7 Additionally, Mr. Doyle correctly argued that Component Cooling. Water Support No. CC-1-107-008-E23R had been incorrectly analyzed because the deflection calculation did not include the potential rotation of the plate.i'8 Although subsequent analysis and redesign may ~ have attenuated these concerns, " we find that CASE correctly identified these problems, and their subsequent resolution does not eradicate our concern that these design problems were present. i F. Differential Seismic Displacement CASE alleges that there should be a slip joint in all large frames that i span a corridor or go from floor to ceiling. The Pipe Support Engineering (PSE) guidelines acknowledge this principle. Nevertheless, the designs of two PSE floor to-ceiling service water supports identified by Mr. 145 Chen Affidavit at 12. stating that both the concrete and the steel beam itself might failif these condi-tions were simultaneous. 146 /d. i4'str neportat40 41. l*S ld at 41. i# Chen Affidavit at 2126. We do not decide whether this complex stiffness study, which has not been subject to litigation, used appropriate assumptions concerning deflections of U-bolts and flexibility in base places and concrete anchorages. It at 22 n.II; see. e.g Doyle Affidavit at 14-20. 1443 L

• f.$

' $t u .,' x -

[5]

t k

p. y. y s ~.... -.m.______..__._ i Walsh were inconsistent with these guidelines and have been r: designed.* No explanation has been provided about how this devia-tion from design guidelines could have arisen and we have no knowledge about the frequency with which such deviations may occur. We note that, in the absence of a system for promptly correcting design deficiencies, applicant identified the deficiency in the PSE sup-i ports in late 1981is' but the two other pipe analysis groups were not directed to follow the PSE guidelines until January 19,1983.852 Although these groups may not have designed wall-to-wall or floor-to-ceiling sup-port frames, they apparently are authorized to do so and their procedures should have been revised more promptly.is3 Applicant's approach to the design of wall to-wall and floor-to-ceiling supports, including nonconformance with PSE guidelines and failute to revise guidelines of other groups promptly, contributes to our lack of i. confidence in its approach to the design process. i G. Component Cooling Water Support Mr. Doyle correctly alleged that Support No. CC-2-008-709-A43K ex-ceeded applicant's guidelines for maximum deflection. The reason for s the error was a mistake in numerical calculations.* The result of catch- + ing the error is that the plate for the bracket was increased in thickness f. from % inch to 1% inches and the weld to the plate was increased from 3/16 inch to 5/16 inch.tS5 Although the design verification process ~ was not yet completed when this error was found,m we do not adopt the SIT's assertion that this error would have been caught in the ordinary d sign process, regardless of whether this had been a CASE allegation. This design, required by regulations to be of the same quality as an initial design, had a numerical deficiency that produced a deficiency in actual construction. We simply have no way of knowing whether or not errors ~ pointed out by CASE would have been caught in the ordinary design process. w-I- 150 Tr. 3142; sTT Report at 26. IS' fg 152 s!T Report at 25. 151/d at 25. The SIT reports that it "was informed" that the other pipe support groups had not deugned these large frame supports. However, the source of the information was not provided to the Board and tre stT apparently did no verification of this matter. /d i-Wid at 40-41. i ' ' - ~ ~ 155Chen Affidavit at 12; SIT Report at 41. (' 35' SIT Report at 4142. e i 1444

'

b c.

t e. 8mi_ i ' '. } l^ r.~. Q}%j'j' ?-' <.K Ct. i z 2._ %.,, o -

,+

a s - - *~ "

,5

~. '. ; i %.;K', n L,,

l.,' -

. u.. 3 ,~ i**-, ;:g'g* y:. ,w' - 7," s., t.- . w,4 n-h,,e - : ' r = - r..}. f, _^. +.w < e m

v_ [ ~ c. ' 0, . : s. ' H. Richmond Insert . s. 1. Testing ~ ~ CASE had alleged that Richmond Insert assemblies (Richmonds) at Comanche Peak were not adequately designed.is? With rgspect to one aspect of this allegation, the design of 1%-inch-diameter Rtchmonds, the ^ SIT Report vindicated the CASE allegation by finding that applicant's use of a safety factor of two for Richmonds was insufficient because "there are no deflection test data for 1% inch Richmond inserts in shear loading."ts: Consequently, the staff required further testing. s' The staff 4 considers the further testing to be adequate.888 The exten: of this design deficiency is accurately depicted in the fol-lowing portion of the Staff's Findings,l'I which we adopt as our own: t 1 The allowable tension loads for the 1%-inch Richmond anchor insert were estab-lished by the Applicants based on a factor of safety of two of the ultimate load as ' ~ determined from actual tension test results. Ai!owable shear loads were set equal to the allowable tension loads and reduced by a factor equal to the ratio of the manu-i facturer's allowable load values (about 0.83). Shear load allowables for the 1% inch insert would have a factor of safety of about 2.4 based on the assumption that the shear test ultimate is equal to the tension test ultimate. However, there was no em- .j pirical support for this assumption since no shear tests had been conducted on the .1 ,i 1%-inch size at the time of the SIT's inspection. Moreover, published allowable loads in the Richmond Screw Anchor Company Bulletin No. 6 are based on a factor ? of safety of three. As a result, the Applicants' shear load allowables for the 1%-inch insert are 50 percent higher than the value recommended by the manufacturer. j (ISIT Report at 19.]) The SIT found this reduction in the factor of safety to be of ~ concern, since these factors establish a reserve capability which will account for the possibilities of overload and understrength. Such possibilities may be due to varia-tions in material dimensions, variations in construction procedure implementation, simplifications in calculation procedures, effects oferection tolerances, and disregard of secondary stresses (including thermal stresses). (/d. at 22.) In sum, the Appli-cants' non-inclusion of the thermal stress component in the design of supports utiliz-ing 1%-inch Richmond inserts was not desirable where the manufacturer's recom-mended safety factor was not also being utilized. The SIT also found that the Richmond Screw Anchor Company's published allow-able shear values for the 1%-inch diameter Richmond insert were extrapolated from 3 shear tests on the 1%-inch diameter insert. Although the published allowable values are theoretically valid, standard industry practice requires that testing be performed to confirm the values. In addition, the shear tests conducted on the %,1, and 137 CASE Exhibit 659 at 4; Tr. 3154 (Walsh). 158 stT Report at 18; m aho &f. at 19 21. i 159/4. at 18. 160 Tr. 6411-12,6436 (Taria). 16i Staff's Findings at 37 39. 1445 k g ~ y ', eu l J , Gj%j.1 '. 1 1 +[6 y .y.x y 2.ws L' ?A, 3 ..j, :* a 4 ,a_ -~ 29

i r I t%-inch inserts do not fully model the configuration of the anchor assembly used with a 1-inch thick washer between the wall and the support frame. This washer in-troduces a bending moment in the bolt which is not reflected in the shear test results. (ISIT Report at 19-20.]) Applicants have stated that ACI 349-80, " Code Requirements for Nuclear Safety , Related Concrete Structures," an industry standard not adopted by the NRC as a regulatory requirement, allows a factor of safety of two for concrete inserts. However, the ACI standard specifies load factors and capacity reduction factors and requires consideration of the forces caused by thermal efTects under accident conditions. In addition, the ACI standard requires a testing program far broader than that which has been carried out for the Richmond inserts. ([ SIT Report at 20.D For these reasons, the Board agrees with the SIT that ACI 349-80 does not permit Applicants to utilize a factor of safety of two in these circumstances. The Board concurs in the SIT's original determination that because of the uncCr-tainties introduced by the test modeling, considered together with the limited test data available, the use of a factor of safety of three at another nuclear power plant utilizing Richmond inserts, and the strict requirements of ACI 349-80 before a safety factor of two may be employed, that an insufficient basis existed for the use of the factor of safety of two for the 1%-inch Richmond insert.This was especially true since Applicants disregard loads resulting from thermal expansion of the at-tached support, and bending moments introduced by the 1-inch thick washer. (ISIT Report at 19-21.1) b We are concerned that applicant had inadequate reason to apply a. safety factor of two to the Richmond insert, in the absence of tests. We have no reason to believe that this problem, identified by the SIT, would have been found in the normal design process. This design prob-lem contributes to our lack of confidence in design processes at Comanche Peak. 2. Axial Torsion in RichmondInserts CASE also is concerned about the ability of the Richmond to resist axial torsion. The concern is important because the Richmond was ~ tested without being conriected to a steel member that could induce tor-9- sion into the bolt. Consequently, the safety of the Richmond depends in part on the test described in subsection 1, above, and in part on the engi- [, ? neering analysis of the effects of torsion on the bolt. ( The nature of this problem may be understood by reference to Figure .nr ^

1. The figure shows three cross-sections of a Richmond. The top view 1

shows the upper section of the bolt, the nut that is threaded on the bolt,

. j, the upper washer and an end-view of a tube-steel member that is being

o. -

? bolted to the wall. The middle view shows the lower washer. The 4 bottom view shows the bottom portion of the bolt as it enters the c:ncrete, represented by a cross-hatched area. Since the views are g '. 6 1446 3-4 # <>-b s .f s -o,-

=r--= n- - 7.,f.- Y [k ' '

~ E' 1 I'.:i' ][ [ ,&(ft2 ' 't,$ h.!,e hf..?.. al ', ?.O l' ~.e- ~ > :.; s.. &a ?.% ;a$ 0 A k h ' '.;',h ? ,z : L. V ~ ?. L.t. - ,Oi

• a

^ q.: - . x,, p.'+, g. i,W t. 1 (... w -v.:.ur.. MI f f, f g2, e j ^'*e h g j g#9' ? ~ a ~ 4 e [,,- T 4g N.' . S [ ~ d ' ' U g,- W [ ^~ j ~ m;rg.pm. v.~ a ' n

x.,..-

-~.. + n, n.:. ,7 i .Jg., 4 a ~- '

... -. --w m ~. = =

~

V ~ 1 V/ / /. 5 (/ / / A s, s s s ~ = = =_ b F=FEF N T g j E g Fd = T j = k = E__ t = g % l Ch \\\\ y 35 NI o d o 1 F, p d 1 F3 o F=F j 2 V/ // // J V // // s a =g 1 2 g l 2 F2 "d 2 F p B 2 o e3 F = F (= F) 2 8 I,,,,. 5 Fd = T 2 //////////////////////// O O FIGURE 1 1447 t f ,d, s'[ ' '-p t _, ~:. x. .N,- 6 ..%Yo 4 e O p g

.. ~. v_ e ~' + ~z. ^ .w. I 6 I b i schimatic, it is not important that the length of the bolt in the top view end in the bottom view exceed the width of the lower washer. In przetice, the bolt would be made snug tight, so that there would be no space separating the steel member, the lower washer and the concrete w:ll. H re, with emphasis added to reflect points of divergence from the visws of Mr. Doyle, is how Dr. Chen describes this concern:3'2 To calculate the tension force in the bolt of the Richmond insert assembly resulting from torsion in the tube steel, the Applicants use the formula T = Td. In this computation d is taken as 2/3 of one half of the width of the washer. This is an ac-ceptable method for computing the bolt force if a linear distribution of forces along the bottom of the lower washer is assumed.363 Mr. Doyle questioned the accuracy cf this method. He noted that the flat surface of the tube steel was smallcr than thq, a bottom of the washer, and indicated that the distance to use in computing the moment should be 2/3 the distance from the bok to the edge of the flat portion of the tube steel He stated that this was smaller than the d used in Applicants' calcula. tions and would thus result in a larger f for a given moment. Thus, the tension in the bolt would be larger than that calculated by Applicants. The Board stated that it wished to have the SIT's evaluation of this newly-identified issue (Tr. 6831); accord-ingly this was an open item at the hearing. _g in [ Figure 1].. torsion in the tube steel (T in the figure) is resisted ultimately by forces of compression in the concrete and by a balancing tension in the bolt. Be-cause of the relative stiffness of the lower washer in comparison to the tube steel and the fact that the bolt is snug," rotation of the assembly will occur primarily about the edge of the tube sterL Hence, the compressive force on the concrete willexstad fully e the edge of she mesher. Therefore, a linear distribution is an appropriate de-( scription of this compressive load. For such a distribution the resultant for purposes of computing the moment can be represented by a concentrated load (f ) at 2/3 the ( i dhtance from the bolt centerline to the edge of the lower washer (4 I-2

l. =

An equal and opposite compressive force acts on the bottom surface of the inwer' washer. This force must be resisted by an equal and opposite force on the top surface of the washer. This force is in turn the result of the downward force exerted by the tube steel Since the assembly is in equilibrium the forces on the lowet washer must be equal, F must equal f, and the moments must be equal, Lt., E x d must equal Q, 1 <J ~ 2 i i i f x 4. Since the surface over which the force from the tube steel acts is smaller 2 g than the top surface of the washer, the force distribution on the top surface cannot [ be linear. This non-linear distribution between the bottom of the tube steel and the j. top surface of the lower washer is shown in Figure 1.Thus, the moment of the non-f_[ .'i.. linear distributed forces will be equal to the moment of forces linearly distributed at

M _

~ - N the bottom of the washer: f, x d, = f, x d = f x 2/3 of % the width of the ,C. ,E 2 washer.3" -Q, " ' O., + 162Chen Affklavit at 8-11. 3 l t63 (Footnote 2 o*nitted.] <~. ~ ' I'd [Footsoe 3 omitted.) t

X a

%'i W 6 g* q 1448 ..- - M: + s I A m m;-." f. ~ .J,

• I 3:

v.

• . i.

~,*, e . } J M. mm. -

• y-

- 3 .A. %',.. s y. e,. of 4' ,=g. -,,~..,.;..m..* 4 A +., s d. ..r=4 g .g .h 4 " De 8 y,.E # e.u.s. <.d *U*.Q ": e,..j.? 'i ? ?e* N t %% g.*.... .m r;,-. n., 7 'x w - ~ .p* aA i '. f..,. y e ,...Js;,. 7.Q,',y.,,s i * ~' ~ c, ;f? e *... -, v 9.. r. , ".h., yr, & o, o, >> 0.e V n s&;w.s.- .am a..,s.~ 3 wm . v. - < e % 2l.y. a. ;y; p'. .C w ^ ,y n - a,. ~ e r: ',t. %, N,N, :.y A ylg.;g yN;:. l 'j.39.i'.- yW(:,@a.% h)!;,lng? y. ey g ;'# j ',.;,' u$[%g88tDN[M["n on' m.w ww...s r%. g" ~.g. W's ) 3fh b W i N Q; ' **, + ;y [' @G. . g 4 M rf d ' -G '?c .y .' -W -,- f Q j.Q '.L w ' ~.~ ~ h 3, .n. 5 MWlL :d. '.h. ;<' Q, e u* N L QQ. ;,' e, f M 4k ? > * *yj' U. >; *": h '", % s v.:+4, s

• .T-

\\ ".*

• l g

s - S; *.. 7-1 *' -

• Ze. : y. ;

m..~ ~ - ..i W" m s E >.- s ,o a \\ F } 'c

t

% q' w mc - [ ' d 3

wa l_ '. J

• b;

'-u < ~i Because of the tciative stiffness of the lower washer as compared to the tube steel, and because the bolt is " snug," the assembly was arnd so phet about the etre of the washer and there will be a linear distribution offorces along the lower surface of the mesher. Accordingly, the resultant is accurately represented by a co'ncentrated load s at 2/3 the distance from the bolt centerline to the edge of the lower washer. Mr. Doyle disagrees with Dr. Chen's representation in Figure 1 of a tri-angular distribution.of the compressive forces between the concrete and the hottom of the washer. He further argues that "[rlegardless of how .c snus the assembly is installed, the fact remains that there is no continui-ty between the tube / bolt and lower washer"; hence, "the transfer of the moment (torque) into a couple can only occur... (from the reaction) at ' ~ the uPrer surface of the washer at the tangent on the tube and the bolt."iss + We agree with Mr. Doyle.t** We are convinced that (1) Dr. Chen's as-c. sumed distribution of forces on the bottom,of the washer is incorrect, and (2) that the use of such a force diitribution is of no value in ~ d:termining the tension in the bolt resulting from a torque on the tube. We conclude that the applicant and stalihave erred in calculating the tension in the toit.,It further appears that this is a type of error that is not caught by the applicant's iterative design process. We are not able to decide whether the error will significantly alTect the design of the pipe supports. If the potential difference in the load on the bolt were to ~ amount to a factor of two, as stated (without contradiction in the record) by Mr. Doyle,'" bolt. allowable stresses might weil be exceeded. This state of the record reflects adversely on the adequacy of the design of Comanche Peak. 165Doyie Affidavit at 8. See ano Tr. 6894-6911 and surroundmg sostirnony for a fuit discussion of this point. 166 We discount the testimony of Mr. Reedy, who attempted tojusuf> applicant's analyse primarily be. cause it complies with industry practice that is less precies than the aeronautical enameeting to which Mr. Doyle is ecssiomed. Mr. 8teedy admitted, however, that he has no knowledge of how the industry an 'yzes this partet.1ar probiem outside of Comanche Peak itself. Tr. 6905 31 especially Tr. 6921 22. we find Mr. Reedy's testirrony about industry practice to be largely irrelevant to deterunining the cor. rect length of the moment arm. In light of the lack ofimportance he placed on the problem and his fail. V ota to explain his reasons, we resect his assurance that "the snoment arm will finally reach the transfer point that the Stafr said they would use as theit assumption." Tr. 6911. We noes that Mr. Reedy never responded to Mr. Doyle's testimony that because this is not a welded connection there will be a " minute but existing elencation is the bolt." causing a gap between the tube steel and the washer. Tr. ? 6900 4 1, 1 le Tr. 6903 (Doylel i 4 1449 / l l -/

%;O

}. '. M M. 1 e< m. , :q '- ~ ] ,Y g / -:.. i a s.% = .i

e 1 I. Organizational and Design Interfaces At various places in this opinion, we have expressed concern that m:mbers of the STRUDL group were unable to report design noncon-farmances and that certain design problems - such as the assurance that there is stabihty in pipe supports - may not havsbeen clearly as-i signed to any one engineering organization. With the exception of these j specific findings, however, we find that the CASE concerns about orga-e nizational and design interfaces are not justified and we adopt the follow-l ing Staff Findings on this subject:i'8 {. Messrs. Walsh and Doyle expressed their concern that because the iterative design process is so corr. plex, the interfaces between the Applicants' various design j groups are inadeouate. As evidence of the allegedly inadequate interfaces, Messrs. Doyle and Walsh stated that each of the three pipe support organizations were using different design appros(hes, and that another approach was used by the onsite civil / structural design group charged with the design of cable tray and conduit supports. For example, they noted that each of the orguizations appeared to be using different section property values for tube steel members (CASE Exhibit 654,

p. 5), and different design criteria for the consideration of frictional loads between pipes and supports (CASE Exhibit 659H, p. 5). Messrs. Doyle and Walsh seem to feel that had the design basis inputs and interfaces been adequate, these differences would no*. have occurred. They further state that since such diflerences have occurred, the Applicants have violated NRC regulations, as well as standards en-dorsed by the NRC, including ANSI N45.2, " Quality Assurance Program Require-ments for Nuclear Power Plants. (See, e.g., Tr. 2973, 3706, 3852, 3864. 3925, 6984-85). Messrs Walsh and Doyle also stated that they believed that internalinter-f~

faces within the SSAG [ Site Stress Analysis Group) were inadequate, since there was no clearly delineated line of communication and responsibility in the Applicants' engineering guidelines, in violation of ANSI N45.2.11 (Tr. 6984-87,6989). The Board disagrees with Messrs. Doyle's and Walsh's conclusions about the Ap-plicants' organizational and design interfaces in the pipe support design area. It is true that there are diflerences in design approaches between the Applicants' three p9e support design organizations. These difTerences appear to be die outgrowth of the Applicants' utilization of three separate pipe support design organizations.8 An ~ orly decision was made by the Applicants that pipe support designs would be con. tracted out to cimprnies who are in the business cf designing and fabricating pipe ,.a -

• support components. In order to satisfy ASME Code requirements and to set a basis f:r competitive bidding between the companies, it was necessary to provide them with the overall design criteria to be met. The Gibbs and Hill document which ac-complishes this objective was Specification MS-46A. Contracts !3r the design of pipe supports at CPSES [ Comanche Peak) were awarded to ITT-Orinnell and NPSI. In 2.-

addition Applicants created what became the PSE, which also utilized Specification 2 las staff's Findings at 17-20. 16'lFootnote la in originall The Applicants also employ a fourth organization for the design of struc-tura! supports for cab 6e trays and conduits tNRC staft Exhibit 207, p.12). 1450 .( ~ - 9 v O'" r W II [

• N'*,

"^N M** [ 4 itl ; k.' ~.,'l;7 l. 4, ? L. .,.-Y ', d' l,,l Ks..

• {'...

, f.? ~ u o 4 e y# - ey s - s

• ,~

A m y b,y $ h f[. ' ' ,( 9(I j },* .'h.)l .'#[Q'. 2, ,, "., ~ 4 R,f. 9,,3 y.(,t.*f;% Tg: J ',; 3 y l : v x* ~ w[. -r . v. m ;.. y.. s c.w ~.w s,' v [] / U 'DeJ l.;*Vr g - F r # f{d ' - +. ' o s ay r u-y - .(- _.q.ty e j,

• 1t g

's;

• ~-

, w, a ?'&g - - os >pi 7 , - ~ ; ~ y\\ 'O . fl

i= ' ~ ..-.a x -.:. 7.. m -y s. ~ MS-46A. Since neither Specification MS-46A nor the ASME Code dictate in detail the means by which an engineer is to satisfy the design criteria, differences in ensi-neering approaches occurred between the three parallel pipe support groups. (Staff s - Exhibit 207 iSIT Report], p.12; Applicants' Exhibit 142, p. 9). The fundamental issue for this Board to resolve is whether these differences in ' ~ design approaches represent a safety or engineering concern, or if they violate any NRC regulations, Staff guidance or other NRC-endorsed standard. The Board be-lieves that ANSI N45.2, and N45.2.ll in particular are relevant in resolving this issue. The overall purpose of ANSI N45.2.lt is to assure that each design organiza-tion has a clear, documented scope of responsibility and that there are documented paths for communication when the responsibility shifts from one organization to the other or is shared by both. N45.2 is a general requirement document essentially 870 equivalent to Appendix B of 10 C.F.R. 50 while N45.2.ll is specific to those design controls requirements contained in Criterion III of Appendix B and N45.2. The NRC has endorsed N45.2 via Regulatory Guide 1.28, and endorsed N45.2.ll via Regulatory Guide 1.64. (Steff Exhibit 207, p.12). ~ The evidence establishes that each of the three pipe support design organizations has its own specific scope of responsibility since each has been assigned the responsi-bility for a specific group of supports. (Staff Exhibit 207, p.13; Applicants' Exhibit 142, p. 9). There is no need for cross-communication between the three groups since they share no common, in-line design responsibility. Furthermore, the lines of communication between the Applicants, Gibbs and Ilill, and each pipe support design organization are clear and documented. Ud.) There is also no need for inter-nal interfaces within a design or support organization, under ANSI N45.2.ll. (Sec. e.g., Tr. 6987-89). Even if we believed that interfaces between the SSAG, and the STRUDL subgroup were necessary under ANSI requirements, we seriously doubt whether there would be any safety significance with regard to CPSES, in light of the clear evidence that the pipe support design groups are well aware that they are ulti-mately responsible for assuring that pipe supports meet all applicable NRC and ASME Code requirements (Tr. 6989-92). The Board concludes that the Applicants have adequately defined and document-ed the responsibilities and paths of communications between Gibbs & Hill and the pipe support design groups. No NRC regulation has been violated, and the program-matic objectives of Subsection NA of the ASME Code, N45.2 and N45.2.ll have . been satisfied. (Staff Exhibit 207, p.13.) s In reaching these conclusions, we do not wish to minimize the difficul-ty applicant may have created,' for design control purposes, by adopting this multiple organization approach. However, we see no prohibition of the approach, providing that applicant's design quality assurance program-is able to accommodate these differences. Obviously, the difficulty for 170The Boas du N ') , g a s :he stafr document because of our belief that Criterion til is not the only deman caJ,4 rec,%; w ound in Appendia 8. 1451 ,.ki. _ l -} d G s2: i '4% b s e 9, O

. u.: s.,.u.i... - -.. :. u.- quility assurance is somewhat increased; but the approach is not pr:hibited. V. CONCLUSION This Board has faced the difficult task of analyzing a complex record cantaining many technical assertions about civil engineering, a field in vthich none of the members of this Board is specially trained. Furthermore, we would note that even for a qualified civil engineer, just a fcw of these issues can require extensive analysis over a period of months.17' Nevertheless, we have carefully analyzed those aspects of the record that have been most significant or that appeared on initial impression to be the most troubling. This analysis has persuaded us that the record before us casts doubt on the design quality of Comanche Peak, both be-ccuse applicant has failed to adopt a system to correct design deficiencies . promptly and because our record is devoid of a satisfactory explanation for several design questions raised by intervenors. Given the limited time frame in which Mr. Walsh and Mr. Doyle had the opportunity to make observations of the Comanche Peak design program, the lack of an adequate explanation for their allegations raises serious questions about the adequacy of the design of the remainder of the plant. At thisjuncture, we think it wise to pause and consider the seriousness of the design problems we have seen, for an appreciation of the serious-ness of those problems is essential in order to attach proper conse-quences to them in this proceeding.in We consider the absence of a pro-gram to correct design deficiencies promptly to be a serious deficiency, mitigated only slightly because it was acquiesced in by the Nuclear p Regulatory Commission's staff. However, the principal consequence of i.- t P(.* a 373 Mr. Tapia and Dr. Chen took over four months to address the open items left from our May hearing. 5' l 172The re'stionship between the seriousness of a violation and the consequences of that violation was ~ recently discussed in the following language in CJrvebad EArcrre lanamarnw Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-83-77,18 NRC 1365 (1983) at 1368 n.5 : Although there are some regulatory requirements, essential to safety, whose violation may re-quire denial of a license, there are other requirements that do not have major safety signincance and whose breach does not require denial of a license. Compare Vermost Yankee Nucher Power Corp. (vermont Yankee Nuclear Power station), ALATA38,6 AEC 520,528-29 (1973) and Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power station) ALAB-161,6 AEC 1003, 1010 (1973) to ConsoMosed Edason Co. of New York (Indian Point station. Unit No. 2), "1 l ALAB-188,7 AEC 323,333-34 (1974) ("Whether licensiog can be authorized in the light of ex. ~ isting deficiencies obviously depends on the significance of the deficiencies."). We re.iect the im-practical proposition that any minor violation of quality assurance regulations, regardless of whether the violation calls plant safety seriously into question, would call for denial of a license. We do not believe the Commission intended that fallible h,arman beings, who must administer l, quahty assurance programs, would be held to such an impractical standard. 4 7 1452 'r~ 4 l ~ a. \\ ( . o ,~ . (- '. i ' l howyv%us mm-w my* ~ ~~ W*'w' 'Tm N,Q ~? %d &&QV[-Q:*i-; M ~ [ ~.~ ' 'c,l,,.)., '., :6

f. ' ' -

f(;", N.

m l?,

J! ',y~. N ' g >-:n.Qi' _y ^,s.+

• ),,

a g,. [y Qs.y ; s;f- ~.5~*^ ff?Gf;]f";, 9.: *; ms;, ) f.. ..J,' N i } -l ~ lN ~ u w s ,, w,> #,'.

• ,=

Q." L,.'t.~~ r ~ ^ . ~ V y[. C, %...,s;y d,).: +th' ? w> &.G / ~.,. - Ny [c $. [,,

• M f, _ N.,., -.

, f

C a.

a o s r l*l g; l % ** V. l" ,7 j .. -,7,, . gg 'MM ;, 4.- 4 1 % b.n.i ; C ~

1 v - ', i - :,.,L Q. s. I, ~. this deficiency is that applicant, the staff and this Board must now be es- ~ pecially careful to determine that quality assurance standards for design ~~.f have been met at the conclusion of the construction process. For this purpose, we intend to continue to conduct an efficient proceeding, mind- .r ful of the need not to impose undue costs or delays on applicant, but we ~ will not be especially concerned about meeting applicant's construction targets. A consequence of applicant's chosen method of assuring design quality is that this Board's task with respect to the pending quality assur-ance contention has been partially deferred to a later stage of the design process. We consider care in performing nur job to be of paramount importance. With respect to the design deficiencies we have noted, we would first caution that therv were aspects of applicant's case that we would have decided in a fashion that was favorable to applicant, and the absence of a discussion of those issues does not necessarily indicate that we have doubts. Our decision to stop where we did was based on our conclusion that there were enough deficiencies that we could not be satisfied by the quality of design reflected on our record. We acknowledge that almost all of the specific design deficiencies we have noted may, on further proof and analysis, be shown to be oflittle or no consequence. We recognize that applicant, faced a difficult task in responding to the numerous, detailed comments made by CASE. It may well be that the absence of proof that would satisfy this Board was a con-sequence of a litigation strategy that relied on applicant's ability to per-suade this Board to accept the testimony of applicant and staff witnesses - . because of their more impressive credentials. In describing the kind of Proposed Findings we required of the parties, we attempted to stress the need for logical explanations that covered all the material in our record and that explained why we should reach the conclusion sought by the party. In this instance, CASE heeded our advice better than applicant and staff and we therefore had no choice but to decide these issues as we have. In assessing the next step in this proceeding, we urge applicant to abandon its belief that its difficulties with this Board are related to the lack of continuity of Board members.") If applicant were to persist in that belief, it likely would find this Board unreceptive to its reargument of old grounds. We have studied the record in this case and believe that applicant must realize that its principal difficulty has been its inability to submit rigorous, logical answers to opposing proof. 1 I 173,e Applicants' Identircation of Issues and Proposal to Establish Hearing schedule (December 3 S 1983) at 2. 1453 I l ~ 'h l

~

Q E%-

,:c ? ~ ND , + - .y-e - mv e- -s 6

e w-c_ __.-_.__w.- y We shall ask applicant to propose a plan to alTect the Board's level of c::nfidence in its design process for Comanche Peak. Staff walkdowns { l-that cover design issues may be helpful to us because of the acquired knowledge of staff,"4 but limited staff resources suggest the need for supplemental elTorts of the nature we are about to describe. Lesser mea-sures might, possibly, succeed in affecting this Board's views, but we urge consideration by applicant of an independent design review with each of the following characteristics: Independence and Qualifications. The review organization should-t be composed of individuals with the combined ability to review design problems in the construction of a nuclear power plant. Consultants may be used to supplement those skills. There should be no lasting financial ties between the reviewing organiza-tion and applicant. Cygna Energy Services, which has already done a design review for applicant, appears to meet this criterion. Organi:ational Independence. During the conduct of the review, there should be no undocumented oral discussions between appli-cant and the reviewing organization concerning findings."5 The reviewing organization should obtain all its information from: observations of documents or hardware; written answers to writ-ten questions; or transcribed conferences open to all parties. Reliability. There should be enough overlap in the work of the reviewers so that inter-reviewer reliability may be established. If reliability is low, then multiple reviews may be necessary in order l to reduce the expected level of undetected errors to an acceptable level. In that way the Board will know how elTective the reviewers have been in identifying the design errors in the plant. Sample. One or more segments of important safety systems should be studied. If there are important design deficiencies in ,7 ' studied systems, the sample should be enlarged. The fact that im-portant design deficiencies have no ultimate consequences, for '~ reasons not considered by the designers, should initially be given i little weight with respect to expanding the sample. However, after '^ several systems have been reviewed, the use by the designers of ?' .. ~,. 178 We have no opinion about whether an Integrated Demgn Inspection Program (IDIP) report should be prepared for Comanche Peak. See Union Elrcsrac Co. (Callaway Plant, Unit I), ALAB 750,18 NRC 1205, 1:07 (1983). 173 See, e.g., Teledyne Engineering services, Technical Report TR.5633, Earcunve Summary of fast Report: Independent Desen Revarwfor the Shortham Nucirer Power Sserion Uune 30,1983) at 2. 1454 i [ <.y .ep + ' F g +- . Sp ' ,. f [.j - r,,, e

• .g

.g g . s ,r* g .pg . fM,. ?,,, R$ $/,9 g - 9.J A.. #.,~' g g 6.'...N[ '. ym ',kg.- [r ;.., [> [ '.i '. - I ~ E', f 7 ).[p M \\ $ I(:,.N 1 r saw u ;S ' i. f c

v. ;:Y", ^ ' ' :/

s n: s . ~. w e C,h.. ',3,, M.,-N, c 17d .e.. " N,. i f *i - i J~ '~% ;' - k &,.,'* M y I ^ + ' 3 m ,,a ~~ e .g'- _ (." 2 ,i y. ' v'$ -e 1

-S f-I' adequate safety margins to accommodate design errors shall be ~ considered with respect to the need to further expand the sample. Scope. In addition to design review functions, the independent

• l~

~ reviewers should respond, in detail, to each allegation of CASE - ~, concerning hardware design problems. This response should indi- ? cate the criteria that are applied, where they are derived from and how each criterion is met. The review should cover those prob-lems considered in this opinion by the Board, which may be per- ~ suaded to modify its present determinations based on carefully reasoned presentations of the design review organization. ~ Documentation and Presentation. Each analysis of an observed potential deficiency should be documented in the report. There should be no vague assertions such as "we have been assured." Scoping calculations or other analyses should be presented. Exten-sive documentation (such as lists of criteria) should be accompa-nied by tables of contents and indexes of sufficient detail to make the material accessible to this Board. Design discussions should be accompanied by drawings that will make the discussion clear. Tables and graphs may be used to clarify the presentation. ~ Review. To facilitate timely review, the report should be pre-pared in phases, and drafts of discrete segments should be published. Applicant and CASE would have thirty days (and the staff would have ten additional days) within which to file, by first class mail or more expeditious method, carefully reasoned, docu-mented objections to these segments, subject to extensions of time granted by the Board for good cause. The design review or-ganization should respond fully to each of these comments in a i report supplement, making alterations in the report if appropriate. Alterations made in response to comments will, however, be subject to the same review process. Hearing Process. After final publication of the document, the parties would have thirty days (staff would have ten additional days) within which to file written exceptions. These exceptions would be limited to matters that a party has previously raised or that the party attempted to raise previously, in a timely manner, but was prevented from raising. There would then be a fifteen-day , period for responses, with staff having an additional ten days. 3 Because this decision does not finally resolve the Walsh/Doyle issues, we have.not considered it to be a partial initial decision, subject to, i 1455 1 l _y.., fCV~ . f;.' e.-> a F w f.y.? l r. J 1 4 M.

q..

.m.-.. i E rppeal. However, due to the importance of the matter involved and the apparent expense of complying with our suggestions for remedying the j problems we have found, we would be receptive to motions to refer this decision to the Appeal Board, either before or after motions to reconsid-i er may be filed before us. (Due to the noliday season, motions to reconsider may be filed 20 days after issuance of this decision.) ORDER I~ t f" i For all the foregoing reasons and based on consideration of the entire record in this matter, it is, this 28th day of December 1983, l i ORDERED i 1. Citizens Association for Sound Energy's (CW'.,1 contention concerning design quality assurance is found to be meritorious, to the + extent indicated in the accompanying memorandum. f 2. Texas Utilities Generating Company, et al., may, within thirty days, file a plan designed to satisfy the Board concerning the issues dis-cussed in this decision. An appropriate extension of time may be granted, particularly if a party files a motion for reconsideration of this d: cision within twenty days ofissuance. 3. CASE has twenty days from the date of filing of the plan specified i in 12 within which to respond to that plan. The staff has five additional t days. FOR THE ATOMIC SAFETY AND I LICENSING BOA RD 2 (. Peter B. Bloch, Chairman l~ ADMINISTRATIVE JUDGE i .s Walter H. Jordan (by PBB) ~ ADMINISTRATIVE JUDGE J [.. Kenneth A. McCollom (by PBB) b[. ,,. ~ F ADMINISTRATIVE JUDGE s Bethesda, Maryland i I a w,. 1456 u; 4 ~ 5 ~..-r-vy wm -:-o--~~- ~ y.~ p -- .,, u. - ~rqaw-v;-- y;e-- n : mflV(f D*l ' ': dp;.f ' ' *. l

• , 3 l z

.y.*.. _ ~, ; O ) f._)?. }, s 5. ~. .7 . ?:-. z.. g :... n. ?,-*--

.,,._,,~

~ft. s e + ~' p., _.:b."; 5 ~. ; y.

. y.,

h,*:p ; r... c f..'. ~~ - ..,.M i:p Ml.17.n.'a*? iWQK L ;',

f. ;.,. " ! : '.h. 3 5. Y..$.-Y..,

k..l'

.a.- N... *.

$c r f,Y.

• Q,

N \\ v v..., s ._ ~., ; ' l - s .+ s +

• *l L ',

+ _; s;/.-. I

• 9

.E d t a.

n.-- l ~ ATTACHMENT A Applicants' and Staff's Witnesses and Testimony ~ ~ I. APPLICANTS In response to the allegations made by Messrs. Walsh and Doyle, Ap-plicants presented at the September 1982 hearing a panel of five wit-nesses with expertise in pipe support design and related fields. These wit-nesses submitted written testimony regarding the pipe support design allegations and were cross-examined (Applicants' Exhibits 142 and 142F). In addition, oral direct testimony was presented by three of these witnesses c.nd another individual as a panel in the May 1983 hearing. Applicants presented Mr. Kenneth L. Scheppele as an expert in struc-tural engineering (Applicants' Exhibit 142 at 1). Mr. Scheppele is Senior Vice' President of the architect / engineer for Comanche Peak, Gibbs & Hill, Inc., and is a registered professional engineer. His qualifications in the field of structural engineering are extensive. (Applicants' Exhibit 19; Tr. 3086.) Applicants also presented Mr. Roger F. Reedy as an expert in the development, interpretation and application of the ASME Code with regard to general requirements, materials, fabrication, examinations, design and analysis. Mr. Reedy has extensive experience in his field of expertise. He is a registered structural engineer in Illinois and a regis-tered professional engineer (civil) in five states. He has been involved in the design of components for nuclear power plants since 1956. He has served as the responsible registered professional engineer for the design l i of nuclear reactor vessels, containment vessels, piping and supports. He has been chairman of the ASMF Section Ill Code Committee since early 1977. He assisted in the development of Section 111 prior to its publica-tion in 1963 and has been a member of the ASME Code Committee ~ since 1969. He personally compiled the Code rules and Subsections NC, ND and NE for inclusion in the 1974 Code Edition, and provided guid-ance to the task group developing the rules for Subsection NF prior to its adoption into Section III. Mr. Reedy was a founding member of the ASME Pressure Vessel and Piping Division and Chairman of the Profes-sional Division in 1979. In 1982, Mr.' Reedy was awarded the honor of ASME Life Fellow because of his ASME Code work and design develop-menttfor multi layered vessels. (Applicants' Exhibits 142 at 2-4; 41.) Dr. Peter S.Y. Chang was presented by Applicants as an expert in pipe j support engineering and STRUDL analysis. Dr. Chang has a Ph.D. in .I i 1457 i m .. y [ ".' 14 a W

.w L I l Civil Engineering and is a registered professional engineer. Dr. Chang is the Chief Engineer, Pip Support Engine: ring for Comanche Peak. He his eleven years of practical experience in the design and analysis of power plant structures, the last nine years being on nuclear plants. He is experienced in the application of the ASME Code, Section III, to con-tainment vessel, pipe stress and pipe support analysis and design. Dr. Chang.is experienced in the development of computer programs for modelling static, thermal, seismic and other transient loadings for nucle-ar power plants. His experience with the application of the STRUDL Code has included advanced lectures and seminars on STRUDL, in addi-tion to graduate course work in topics related to STRUDL analysis. Dr. Chang served as a supervising engineer responsible for structural analy-sis and design for static, thermal, seismic and other loads for all safety-related buildings at another nuclear project. Since coming to Comanche Peak in 1981, he has been cc:ponsible for small-bore ASME pipe stress analysis and ASME NF pig support design. (Applicants' Exhibits 142 at 4-5; 142 A.) Mr. John C. Finneran, Jr., presented testimony for Applicants as an expert in structural engineering. Mr. Finneran has Bachelor's and Mas-ter's Degrees in Civil Engineering and is a member of the American Society of Civil Engineers. He is a registered professional engineer. Mr. Finneran is the Pipe Support Engineering Supervisor for Comanche Peak. He has several years' experience in structural engineering in design and analysis of substation and transmission structures for power plants, and he has been a supervisor of structural engineering groups at Comanche Peak for three years. (Applicants' Exhibits 142 at 7; 142B.) Also, Mr. Gary Krishnan was presented by Applicants as an expert in pipe stress analysis. Mr. Krishnan is the Site Stress Analysis Group Su-pervisor for Comanche Peak. Mr. Krishnan has Bachelor's and Master's Degrees in Mechanical Engineering. His Master's degree is in the area of stress analysis. He has eight years' experience in pipe stress analysis v at nuclear facilities. He has been a Senior Engineer for Gibbs & Hill for three years, performing pipe stress analyses of safety class piping. ( Applicants' Exhibits 142 at 8-9; 142C.) Finally, Applicants presented Mr. Michael A. Vivirito as an expert in '.,n structural engineering (on a panel with Messrs. Reedy, Finneran and Chang) during the May 1983 hearings to testify in response to NRC Staff testimony and the surrebuttal testimony of CASE's witnesses. Mr. l, e, Vivirito is the Vice President - Power Engineering of Gibbs & Hill. Mr. ^ Vivirito is a registered professional engineer and has thirty five years' experience in structural engineering, including seventeen years' experi-4.- ~ cnce in the design and construction of nuclear power reactor facilities.

6 1458 P<

f,. F..vx.- j 5 M-- g .5 [ ' = * ~: e 4 . : /

• k, e;<.

'.,J,"'. ~.' e w.ww:;x:\\2 ... ~ ~ r ~ q ,n 'm n. ' ,"?;:,. . - ~ ..~... ~ P:.j w~yy. .e e.: . ~.. s I ' * * ".f: *.?*. ? ~~ - ~ . r. ~c w....f2,:.\\ l.;2 y *, ~ T *. .'.y.,. . {: ,q .J y. m.,o ~ q..f. ~ j'. 4."' 'al .7 s. y .,. v ^ ' ?+ h2, D [P 'O e* xm- - n' ..<, _ l hll* t . m.y.. i r2 4 .y

e f: .i ' ] _ 0. ' He is a member of the American Society of Civil Engineers and has g, ~ served on numerous professional committees. (Applicants' Exhibit 154.) ./ II. NRC STAFF The NRC initially presented in the September 1982 hearings two wit-nesses to address the pipe support design allegations. Mr. Joseph I. Tapia and Dr. W. Paul Chen submitted prefiled testirnany on this matter (identified as NRC Exhibit 201), but because they had not had an oppor-tunity to complete their review of Mr. Doyle's allegations, the Board sus-pended the taking of evidence on that question until such time as the ~ Staff was prepared to proceed (Tr. 5407, 5410). Upon completion of its review of the pipe support design allegations, the Staffissued an inspec-tion report (I&E Report 82 26/82-14, cover letter dated February 15, 1983). That report was received into evidence at the May 1983 hearings (NRC Exhibit 207). The Staff also submitted the testimony of Mr. Tapia and Dr. Chen regarding pipe support design, and supplemental testimo-ny of Messrs. Tapia, Spottswood Burwell, Robert G. Taylor and Drs. Chen and Jai Raj N. Rajan on the same topic, as well as with respect to the NRC Construction Appraisal Inspection Team (" CAT") report fcr Comanche Peak (NRC Staff Testimony and Supplemental Testimony, following Tr. 6402). In addition, the Staff presented the testimony of Mr. A.B. Beach, as a member of the CAT, regarding the pipe support findings of the CAT (following Tr. 6283).' ~ Mr. Tapia is the Reactor Inspector in the Engineering Section of the Division of Resident, Reactor Projects and Engineering Programs, NRC Region IV. He had held this position since 1976. Mr. Tapia has Bache-for's and Master's Degrees in Civil Engineering. Mr. Tapia is a member ~ of the American Society of Civil Engineers; the International Society of Soil, Mechanics and Foundation Engineering; and the American Con-crete Institute, serving as a member of that Instituts's Committee on a Quality Assurance Systems for Concrete. (NRC Exhibit 8.) Dr. Chen is the Manager of the Stress Analysis Unit of the Systems Engineering Department of the Energy Technology Engineering Center, a U.S. Department of Energy Laboratory. Dr. Chen has Bachelor's and Master's Degrees in Civil Engineering and Applied Mechanics, and a The Const'ruction Appraisal Team is an NRC-commissioned team or inspectors who are charged I with conducting reviews or the adequacy orconstruction at racilities nearing completion. This team pre. sented testimony at the June 1903 heanns regarding its rendings, and our decision on the CAT Report will be issued at a later time. we address in this decision only those aspects or the CAT Report (NRC Exhibit 206) that concern pipe supports. i 1459 1 4 ? a g ~

+ 4 a

(,i 4 ~ h O

s, y . a,. Ph.D. in Theoretical and Applied Mechanics. Dr. Chen is responsible fcr the technical review of portions of the FSAR, including the pipe sup-port stress analysis performed by Applicants. Dr. Chen has extensive ex-pcrience in areas relating to material properties and stress analysis. He is responsible for performance of ASME compliance analysis of piping and components for ETEC. (Chen Statement of Qualifications, attached to NRC Staff Testimony following Tr. 6402.) Mr. Burwell is the NRC Operating License Proje,ct Manager for Comanche Peak. He is responsible for managing and participating in the safety and environmental reviews, analyses and evaluations associated with licensing actions at Comanche Peak. Mr. Burwell has Bachelor's and Master's Degrees in Mechanical Engineering, and is a registered professional engineer. Mr. Burwell has extensive experience in the design and construction of components for nuclear power reactors. He f has worked at the NRC since 1969. (Burwell Statement of Qualifications, attached to NRC Staff Supplemental Testimony, following' Tr. 6402.) Dr. Rajan is the mechanical engineer responsible for reviewing and evaluating safety analysis reports with regard to the dynamic analysis and testing of safety related systems and components, and the criteria s for protection against the dynamic effects associated with postulated fail-ures of fluid systems for nuclear facilities. Dr. Rajan has Bachelor's De-j grees in Physics, Mathematics and Chemistry and Civil Engineering; a Master's Degree in Applied Mechanics and a Ph.D. in Fluid Mechanics. He has extensive experience in the design, analysis, testing and evalua-tion of fluid piping systems and power fluid systems of nuclear reactors. t lf-He has contributed to published papers in various professionaljournals, end is a part time professor in the fields of mechanics, materials, fluid mechanics and applied mechanics. (Rajan Statement of Qualifications, attached to NRC Supplemental Testimony, following Tr. 6402.) Mr. Taylor is the Resident Reactor Inspector at Comanche Peak, a po-l sition he has held since 1978. He is responsible for conducting and coor- -F. dinating all safety related inspection efforts by the NRC Region at the .C site. Mr. Taylor is a registered professional engineer, specializing in qual. i ity control engineering. Mr. Taylor has thirty years of experience in the quality engineering field, including fifteen years of experience in quality j-r.ssurance and reactor inspection in the nu: lear power reactor field. Mr. c^' c ~ f Taylor joined the NRC in 1976 and served as the reactor inspector at ',, f, 9 c ,..g two other power reactors prior to being assigned to Comanche Peak. ( (NRC Exhibit 9.) ('. + .,7 ~ ~ r F 4 6 k g,. 1460 E h l '~ ~ L i' -]. A* 7 3, ]t [ ..; t = n: W *"*-" W -'; ~ ' 7 ~;* v

• k

. n., ~ .f =. f b,; g,..+- ?. n.+. m(l._,'e.".. ,4 ,f n? v: c ' i - ,*u:l'% w.VG;,;'y m'rh (*lT W, .y +~x. .c.m W ', n ; y' h f * ?!), .[F . Y. V. \\

V.

h.;'. ..~g,

,. Y'.,m. ', '. -

y j. y * 'ah,'*, ij; e a s.m._ .r .,, h 1. 3 _gl j - o, e-L * ' ~

• s

} 4 f j

-w.4 e-- \\ b 51, Directors' Dec..isions Under 10 CFR 2.206 1, I 4 4 6 w I D

) m Cite as 18 NRC 1461 (1983) DD-83-19 ' ~ UNITED STATES OF AMERICA s NUCLEAR REGULATORY COMMISSION ~ OFFICE OF INSPECTION AND ENFORCEMENT f Richard C. DeYoung, Director in the Matter of Docket No. 50-358 (10 C.F.R. 9 2.206) CINCINNATI GAS & ELECTRIC r COMPANY (William H. Zimmer Nuclear Power Station) December 16,1983 ~ The Director of the Office ofInspection and Enforcement denies a pe-tition submitted by Thomas Devine of the Government Accountability Project, on behalf of the Miami Valley Power Project, requesting that the Commission take certain actions with respect to the William H. Zimmer Nuclear Power Station. DIRECTOR'S DECISION UNDER 10 C.F.R. s 2.206 ~ By letter to the Nuclear Regulatory Commission dated May 25,1983, Thomas Devine of the Government Accountability Project, on behalf of the Miami Valley Power Project (hereinafter referred to as MVPP or the petitioner), requested that the Commission take certain actions with re-spect to the William H. Zimmer Nuclear Power Station. At the time, a partial denial of an earlier petition filed by MVPP was pending before the Commission for its review under 10 C.F.R. f 2.206(c). Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), DD.83-2,17 NRC 323 (1983). Although it declined to disturb the Director's Decision then pending, the Commission referred MVPP's May 25th letter to the NRC staff for treatment as a new request for t 1461 1 .. - s. ^ 6 i m. 4 9 8

o w_... ...,2.. ..._ : u -. action pursuant to 10 C.F.R. { 2.206 of the Commission's regulations. Notice of the request was published in the federal Register on July 6, 1983.48 Fed. Reg. 31,119. On August 10, 1983, the Cincinnati Gas & El ctric Company (CG&E), the licensee for the Zimmer facility, filed comments opposing MVPP's petition. I. On November 12, 1982, the Commission suspended construction of the Zimmer project pending the satisfaction of certain conditions which rsquired rehabilitation of the licensee's management and execution of ~ its responsibilities under the Commission's requirements. Order to Show Cause and Order immediately Suspending Construction, CLI-82-33,16 NRC 1489 (1982). The Commission's order required an immediate halt to safety related construction on the Zimmer station and rrquired the licensee to show cause why the suspension should not con-tinue pending review and implementation of proposals to improve the licensee's management of the project, to verify the quality of construc-tion work and to ensure that future construction would conform to the Commission's requirements. The licensee consented to the order and, tsccordingly, took steps to comply with its provisions. l The order required the licensee to obtain an independent review of l the management of the Zimmer project, and specified several manage- ~ ment alternatives to be considered in conducting this review. Upon com-pletion of the independent management review, the. order required the licensee to submit its recommended cour e of action, based upon the I findings of the review, to the Regional Administrator of NRC Region 111 for his approval. See 16 NRC at 1497-98. With NRC approval, CG&E I~ retained Torrey Pines Technology to conduct the independent review of the management of the Zimmer project. See Letter from James G. Keppler, Regional Administrator, NRC Region 111, to William H. Dickhoner, President, Cincinnati Gas and Electric Co. (April 15, 1983). J' Torrey Pines completed its management review and submitted a report [% j l to the NRC and CG&E in August 1983. After reviewing the Torrey i Pines report, CG&E submitted to the Regional Administrator for his ap-f.- i proval a proposed course of action for completion of the Zimmer project. See Letter from W.H. Dickhoner, President, Cincinnati Gas fl J and Electric Co., to James G. Keppler, Regional Administrator, NRC ~ Rtgion 111 (Oct. 5,1983), transmitting Course of Action for the William I H. Zimmer Nuclear Power Station (hereinafter cited as Course of Action). The staff has reviewed the Course of Action, as modified by subsequent filings from CG&E in response to staff questions developed l l 1462 .,r 1 v 51 ,~: 2:. 7 + . '. ~. q* .;: t., # g.

}

p2: -.w.,-,- y. 3-. m. , 9,./ M M.' h'.Y[gd T.(.lh'$,i ( ',, % "

• r' '.

P.4'. W r 1 sff,TQ88 ," 2. p e ' j., 4[ h[' ^ ' j. j

' - hn m%m; a v.-

N. '., :- f M I<.w - + '. - Q,gj f ... g ?, j 1,', ' ,'. 6 ~.. ' ' k,3-hy,h Ar QQ:;1.?., > f ll.a.m c n w ~ v :.;:.. $ (s.*; :s 5, *- k 0

• f.,'d s\\ ' .)

' f, f,~* - J~

--Y 'l z2

~ w ~ ~ 7,o p#. '.x;1g sixy - c (,; 1 g y, 7 .w +,,, + -LQ ~ _f s 4 >+

I l - a.. from the staft's and public comments on the Course of Action, and the Regional Administrator has today approved it. II. ~ ~ Before the Commission issued its suspension order, MVPP had filed a petition on August 20,1982, with the Commission which requested sus-pension of construction and other relief. This petition was referred to the staff for consideration in accordance with 10 C.F.R. l 2.206. The Commission's order substantially granted MVPP's petition by imposing ~ an immediate suspension of construction and by requiring an independ-ent management review and institution of a program to verify the quality of construction as conditions of any resumption of construction. DD-83-2,17 NRC at 324. The staff denied the petitioner's request inso-far as it asked that CG&E be removed frein any responsibihty for reveri-fication of the quality of construction. Id. at 325-26. In its May 25, 1983 letter, MVPP asked that the Commission modify the suspension order and the Director's Decision (DD 83-2) and there-by grant further relief pertaining to the suspension of Zimmer's construction. MVPP takes issue with the Commission's order and with i DD-83-2 in that both permitted the Quality Confirmation Program (QCP)' to continue at Zimmer and did net remove CG&E from control of, or responsibility for, the QCP and the quality assurance program. MVPP Request at 3. MVPP asserts that CG&E should be removed from responsibility for quality assurance activities. MVPP requested that the Commission take these three steps: (1) suspend the ongoing quality confirmation program and related activities being conducted at Zimmer; (2) remove CG&E from any decisionmaking role with respect to the recommendations of Torrey Pines, and require that the results of Torrey Pines' review be submitted directly to the NRC for approval; and (3) prohibit Torrey Pines from considering any organizational alternative that would allow the licensee to retain control of the quality verification and quality assurance programs until Zimmer is completed. MVPP Re. quest at 7. ~ l The QCP is a program which has been under way since 1981 and whose objective is to determine the quality of completed construction work at Zimmer in areas where questions as to quality had been raised. 1463 J. r t A I

o ,__n. _.. _.... l .l III. i i MVPP's requests to restructure the handling and scope of Torrey f Pines' management review under the Commission's order are denied. Prohibiting Torrey Pines from considering management alternatives l which allowed CG&E to retain control of the Zimmer quality verification and quality assurance programs would have unduly restricted the scope cf the management review mandaied by the order. The independent m:nagement review was intended to examine deficiencies in manage-m:nt that contributed to the Zimmer project's problems and to suggest possible strategies to remedy those management deficiencies. Thus, the j Commission's order encouraged consideration of a spectrum of manage-ment alternatives and, indeed, required consideration of alternatives that would require the quality assurance program to be conducted by an experienced outside organization. CLI 82 33,16 NRC at 1497. There is nothing inherently wrong with considering alternatives that include CG&E in a continuing role in the quality assurance of reverification programs, because such alternatives may be acceptable to fulfill the con. ditions of the order. In all events, consideration of an alternative is not tIntamount to its approval under the order. As to the petitioner's request that the licensee be removed from "any l decisionmaking role with respect to the.Torrey Pines reccommen-dations," and that instead the NRC itself approve the recommendations, .i It should be noted that the Commission's order require's that the NRC approve any revised management structure. The order requires CG&E to evaluate the recommendations of the independent management-review, and then " submit to the Regional Administrator the licensee's recommended course of action on the basis of this independent review.... The licensee's recommendations and its schedule for imple. mentation of those recommendations shall be subject to approval by the Regional Administrator." CLI 82 33,16 NRC at 1498 (emphasis M, added). While the licensee may propose a management structure, it is the NRC which makes 'the determination as to the adequacy of that prcposal. NRC's role in approving the revised management structure af. fords sufficient control to ensure that adequate measures to correct management deficiencies are taken by the licensee under the order. ...s... gy,. e w ,. + The remainder of this c.ecision examines the petitioner's request that CG&E be removed from the conduct of the quality assurance and quality 6 h 1. f. 1464 9 ,: s : ; ;;' -+. },

., '

,,.y,,,

• *!*T"' *[:'

'* " C 'D'*~'** l G"' **;*"hi.m f - **~~~******##'*"*""~ (. ,.,[ '.' '. p l * '.,, i v.'? ;.

' {, '."

s::,Y* 7 " y..,. ' 1 ;. u.-. ~. m' m ..~'

n. s.

e l. ,'l X4$f]k.[?.,j O.l J G _ [. , / ', ; i ;'. ? /' ,,Q (' 7 r N.,, .Q. ' ~ n t;,' ,., m t: P .L L. '. y j u p[,,i g Iel < ~ -C,., '; +: ) a ~ ejo d' 7.l ? e,.

Y

• se --

4 o,/- I y 4" / 3 3 j i '~.,. '. verification programs and that the QCP and related quality assurance ac-i tivities be suspended. The petitioner identifies several new developments i .x in support of its request: the licensee's " prejudgment" of the results j of the Torrey Pines review; the existence oflitigation between the utili-ties which own the Zimmer facility; and contradictions between NRC 'v and licensee findings as to the quality of the as built condition of the Zimmer plant. See MVPP Request at 3. For the reasons stated herein, l ,e this aspect of the relief requested by the petitioner is also denied. With respect to the licensee's " prejudgment" of the management } review, the petitioner alleges that CG&E devised " secret plans... to cir- ~ i cumvent the independent management review process in order to avoid f" time delays." MVPP Request at 5. MVPP was particularly concerned [ that "CG&E [would] attempt to develop verification and construction a, completion plans while Torrey Pines Technology [was) conducting the j. management review to recommend the appropriate reforms" to enable [' . V.fy - CG&E to complete the Zimmer project. /d. During and subsequent to the management review' conducted by Torrey Pines Technology, there has been no indication that the licensee would accept the results of that inquiry in other than good faith or other- _y wise take action to undermine the Torrey Pines review. CG&E did not stop all activity at the Zimmer site during the review, nor did the Com-j mission's order require it to do so. In a letter dated February 28,1983, CG&E informed the staff of its plans to undertake preparatory work in j anticipation of developing a new program to verify the quality of the l plant.8 See Letter from William H. Dickhoner, President, Cincinnati l Gas and Electric Company to James G. Keppler, Regional Administrator, NRC Region II! (Feb. 28, 1983). In this letter, CG&E also advised the staff that it intended to retain Bechtel Power Corpora-tion as a consultant to assist it in these activities. CG&E expressly stated l Its recognition that the described activities would be undertaken at its risk and would be subject to possible " amendment or elaboration" based c upon the results of the independent management review. l By letter dated March 10,1983, the NRC staff acknowledged CG&E's letter and concurred in CG&E's assessment that the enumerated activi. t j 2 These preparesory actsvinies includet

1. noview or development of a Propoet Procedures Manuel;

2. Review of documenesteen programe.

3. Review of essessas transing programe and intiassion of edditional progreme. d required;

• 4.

8 of programs to organese the date awedette on various esfety related construction t enenen. $. Review of the status of the Final safety Analysse Report; i

6. *weihdown*of the plant le determene 6te physiset "as buelt" condition; and

7., Analyse of esiastas computer programs and development of new ones. as required, i

l 14ss ..rq J__" p n. p'. J 1 i - 'a i e g,3, s l+k + t

n. ~

i. 7 i q.; ':C Q

i.,

e c 6 a ' 4,; 4

.a _ .. _ -.. - _ _ _o_. ) ties were not prohibited by the Commission's order. The staff g emphasized, however, that these activities could not be permitted to cur-tail in any way the reorganization options open to consideration by the independent management reviewer. An enumeration of additional activi-ties undertaken by CG&E prior to receipt of Torrey Pines' recommenda-l, ti:ns was contained in a letter from the licensee to the project manager cf the Torrey Pines review. See Letter from J. Williams, Jr., Cincinnati l Gas and Electric Co., to A.J. Neylan, Torrey Pines Technology (June 30, 1983).) i None of these activities were secret, but were instead made known to the staff and were placed on the public record. It is unclear whether the petitioner's reference to the circumvention of the independent manage-ment review encompasses the preparatory activities; nonetheless, there appears to be no basis for viewing these activities as such. It was not un-I reasonable for CG&E to initiate activities to strengthen its organization and to enable it to " react promptly and comprehensively" to Torrey Pines' recommendations when they were made. See Williams Letter of June 30,1983, at 5. So long as the activities did not compromise the in-dependence of Torrey Pines' management review nor involve safety-rel:ted construction, CG&E was not prohibited under the Commission's order from undertaking such work. Based upon a review of the Torrey { Pines report, correspondence between Torrey Pines and CG&E, discus-sions between the NRC staff and Torrey Pines, and NRC inspections, there is no indication that CG&E compromised Torrey Pines' independence, otherwise undermined the results ofits review, or contin-l ued safety related construction. j. As another development supporting its request, MVPP points to litiga-tion which has been instituted against CG&E by one of its partners in the Zimmer project, the Dayton Power and Light Company (DP&L). As characterized by the petitioner, this litigation raises issues concerning p I l' t j i. J This let er was v.ritten at the request of Mr. Neylan for Mr. Wilitams to put in wnting some of his ideas and philosophy regarding the future conduct of the zimmer project. Mr. Williams enumerated = steps that he had commenced to effect "a complete reorgamration and strengthening of the project stafr withm CG&E." See L.etter at 1. Mr withams stated that he recosmzed that further restructunns of the CG".E orgamzation might be necessary as a result of Torrey Pmes' recommendations. but that he be. I-ICved the steps he had taken would be esseitialin any restructured orgamzation proposed by CGAE as I* a result of the Torrey Pmes review. It at 3. Mr Wilhams also assured Mr. Neylan that the " tentative plans" outhned in his letter constitutes only his thinkms at that time and that he awaited the report and recommendations of Torrey Pmes, which would receive CG&E's "most thoughtful consideration." It at 5. 1466 ~. = . s ~ .p fy-.j.--p.~.-..-----e.-.r..----g+.. -,..--.--.--.m f ; ^ ,.&,y g. 'c ,; s, ' w ,:,.. p n.... -*g.< , 't. .,8 g g f. g a f ,e' t t ,Wl. q. s s.,, .[ s .e. 2 8, -'4 1 8 4, c. ,7 .f a i ala - e i. * =

\\ .z wuhm.; s. i 1 s. 3 .,~ - the financial obligations between the Zimmer partners.* The petitioner draws two conclusions from the pendency of this litigation. First, MVPP 'j asserts that DP&L's claims provide further support for the petitioner's lack of faith in CG&E's cerrorate character and competence. Second, MVPP asserts that, as a result of the litigation, CG&E now finds itselfin a " unique conflict ofinterest": Each CG&E finding through the QCP or its own QA program weakens its legal posi-tion if the results ev41ence previous mismanagement cr neglect, or require expen-sive and time-cons //ning corrective action. The stakes at Zimmer are too serious to samble that CG& 3 is se objective [ thall it will make disclosures that could defeat its lawsuit .j Request at 6. With respect to MVPP's first conclusion, the eventual results of the j arbitratioa might include facts or findings on CG&E's corporate charac-ter or competence which might be relevant to the NRC's ongoing con-sideration of CG&E's application for an operating license or indicate a 4 need for further enforcement action. The history to date of this project I clearly raises questions concerning CG&E's performance. For that ] reason the Commission's order was issued. The order is designed to remedy the past management problems. Should CG&E fail to rehabili-tate itself under the order, it faces revocation of its construction permit and denial of an operating license. Other than citing the existence of the litigation itself, the petitioner has not set forth an adequate basis for the assumption that CG&E might ignore its obligation to report to the NRC deficiencies or problems identified at the Zimmer facility. The licensee must report certain con-i struction deficiencies under the NRC's regulations in 10. C.F.R. f 50.55(e) and 10 C.F.R. Part 21. Moreover, the Commission's order re-quires the licensee to address the means of ensuring that construction c I ) 4 The petitioner identifies the issues as whether-4 3 l

1. DP&L is obligated to contmue to pay all costs billed to it in view of the history and current j

l status of the project, and in view of CGAE's inability or refusal to specify a compienon date or I a defined completion cost. or develop a satisfactory scheduled program;

2. CG&E had sumcient knowledge that sctions against suppliers for failure to comply with con-tractual obligations should have been initiated or other available remedies pursued;

3. DP&L's percentage of undivided interest in Zimmer and its corresponding entitlement to capacity of Zimmer as stated in the Basic Generaung Agreement should be modified;

4. The nghts. obligations and duties of the parties under the Basic Generating Agreement and t

the Zimmer operating Agreement should be modified; and

5. DP&L should be awarded damages resulting from CG&E's performance under the Basic Generating Agreement.

MVPP Request at $4. MVPP also notes that CG AE has sought a stay of the arbitration proceedings in-i statuted by DPAL and a declaratory judgment that the issues raised are not subject to arbitration. and has further announced that it would " prepare for and defend asamst (thel claims

• raised by DP&L /d.

,l at f 4. i 1467 1 i i 7 e, n .6 = , 4 4 5 m

1. ag -

6 .t?

y j

Q k 'I 1

g.

e + . o s I. l ~ qu;1ity is verified and that the Quality Confirmation Program has ade-quttely identified potential construction deficiencies at the areas in which it has been conducted. See CLI-82-33,16 NRC at 1498. The peti-tioner's contention is premised essentially on the assumption that the licensee will deliberately ignore or fail to meet its reporting obligations in order to gain an advantage in the arbitration. MVPP provides no evi-dence which would warrant the Commission to indulge in such an as-I sumption for this or any other licensee. While a concerted effort to 2 avoid its reporting responsibilities might afford a licensee some short-term gain, the licensee and its responsible officials risk potentially severe criminal and civil sanctions for such conduct. MVPP's reasoning on this point is insufficient to support its request for relief. Cf. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and*2), CL1-78-1, 7 NRC 1,18-19 (1978); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), CLI-83-21,18 NRC 157 (1983) (48 Fed. Reg. 38,702 (1983)), affirming DD-83-2,17 NRC 327 (1983). The more significant development cited by the petitioner in support of its request concerns contradictions between NRC and CG&E assess-ments of the quality of the as-built condition of Zimmer. The petitioner compares the findings of a special NRC inspection team (hereinafter referred to as the NET team)5 to the licensee's answers in response to a staff demand for information.* According to the petitioner, the contradic-- tions in the documents " cast serious doubt on CG&E's judgment" and " demonstrate the inherent inadequacy of the QCP's patchwork approach to checking the quality of Zimmer." MVPP Request at 3-4. The petitioner's assertion that CG&E's ability to assess the quality of construction at Zimmer is called into question by the NET team findings appears to be unfounded. These documents are not comparable. The licensee's response addressed specific allegations raised by MVPP in its ~ August 1982 petition 10 C.F.R. l 2.206. In contrast, the NET team was assembled by NRC to provide an independent evaluation of the extent of hardware problems at Zimmer. .~ Although the NET team developed its findings subsequent to the sub-mittal of the CG&E response, it did not rely upon the answers provided by CG&E. Rather, the NET Report was based on the NRC review team's independent inspection of the facility. The CG&E response was directed to specific allegations. In contrast, the NET Report took a 5 The NRC inspection team rindings referenced by the petmoners are contained in the Report ofik NRC Eualuaren Team on tM Quatory of Corstrucumn er ok Zimmer Nucker Powr Staten. NUREG 0969 4 ( April 1983). 6 on september 24.1982. the stafr transmitted, pursuant to 10 C.F.R. { $0.$4(0, a Demand for Infor-m, tion to the hcensee concermns the Zimmer facihty. The hcensee responded on February 28.1983. e 1468 f + .~ ye t t" 89 39- ,e sheer' _ ,9 gesent.e#. , ogsme w M 3 'a -...M..I,. , g' " ,.y b[ [l. S s' f'l;%..a+ v.'t.%yt. 3 .J : .. ' p ?' r s

• y 1,.

? -O l. *,,,, - c g.e ,,L1 ? ,?,'.' ~ = $.$. &;h'_ (3, f:> > ~. ', ,j 4 - - -;%.. ', -, M T,' M Nr" 34." ' Y.' > *,, 'i l' .f r : -j; ~ i .a p.h,,.#,. u

a. /.,1. Q.3

s ~*. = ,,-y. t, e, '#3 l *~ [ ~ r +0 .J * ! N; , +

broader view of the facility in an attempt to ascertain the extent of Zim-mer's hardware problems. In view of these fundamental differences, the CG&E response and the NET Report cannot be meaningfully compared. Moreover, in comparing CG&E's response with statements in the ~ NET Report identified by the petitioner, contradictions do not appear to be evident. For example, MVPP identifies a passage from CG&E's re-sponse which states that a determination as to whether the astuilt con-dition of Zimmer reflects a proper design can be made based upon the QCP and an independent design review,' and that design document changes are being reviewed as part of the QCP to assure that they have been properly considered. MVPP Request at 4; see also CG&E Response to Demand for Information at 36,38. The petitioner contrasts this re-sponse to a conclusion from the NET Report that "an independent design audit is recommended to resolve the issue of design adequacy satisfactorily... in addition to the QCP efforts... in the design area." MVPP Request at 3-4, quoring NET Report at 224. Both statements indi-cate support for an independent design review or audit. While there may be differences in specific aspects of CG&E and the NET Report { lindings, the recommendation as to the independent design review is es-i sentially the same. Although not required by the Commission's Novem-ber 1982 order, CG&E has proposed an independent design review as part of its course of action. Accordingly, there does not appear to be any basis for drawing CG&E's judgment into question. The petitioner asserts that the NET Report findings " demonstrate the inherent inadequacy of the QCP's patchwork approach to checking the quality of Zimmer." MVPP Request at 4. MVPP bases its conclusion on the fact that the QCP had not identified all of the deficiencies identified in the NET Report, including findings of structural steel bolting deficiencies. As to the structural steel and masonry wall safety-related bolted connections referenced by the petitioners, CG&E has specifically identified these problems as items which will be reviewed under its plan to verify the quality of the Zimmer project's construction. Moreover, CG&E has formulated a specific plan to deal with the findings of the NET Report.See Course of Action, Attachment 3. The failure of the QCP to duplicate findings discovered by the NET team does not demonstrate, in and of itself, the inherent inadequacy of that program. The QCP has been successful in identifying a number of problems with the Zimmer project. In any event, the QCP will not be the only program relied upon to verify the adequacy of construction at ? The independent design review subsequently outhned in a letter trom CGAE to the staff dated october 26.1983 and the detaded plan will be submitted to the NRC stafr tot approval. 1469 WWY __m 7 }. A 4 i. 9

f .l. ~- ~ a. u -. -. -.....= ~ e i i t Zimmer. Since issuance of the Commission's order, the licensee has j c:ntinued the QCP at its own risk. As discussed more fully below, the results of the QCP are subject to verification under the plan to verify the qu:lity of construction required by the Commission's order. Should sig-i nificant deficiencies be found with the results of the QCP, those areas of { the Zimmer facility verified under the QCP will be subject to i-reverification. The Commission was well aware of potential inadequacies in the QCP when the November 1982 order was issued. For this reason, the Commission's order required CG&E to develop a revised plan to I vtrify the quality of construction which included consideration of wheth-er the scope and depth of the QCP should be expanded. See CLI-82 33, 16 NRC at 1498. Given the nature of the QCP and the order's require-ment to develop a comprehensive quality verification program tha~t in-ciudes consideration of the adequacy of the QCP, suspension of the QCP is not required now in the interest of public health and safety.. CG&E's strategy to resolve the problems at Zimmer has evolved in + important respects since the submittal of MVPP's petition, particularly t.s a result of the requirements of the Commission's order. It is evident from the Course of Action that substantial changes have been and will be made to CG&E's management to improve its ability to construct the Zimmer plant in accordance with the Commission's requirements. CG&E has proposed as part of its Course of Action to complete con-struction of the Zimmer facility, both an independent design review and a " Plan to Verify the Quality of Construction" (PVQC). In Section IV.B(2)(a) of its November 1982 order, the Commission required CG&E to submit an " updated comprehensive plan to verify the quality i of construction of the Zimmer facility...." The Commission further directed that: "li]n preparing this updated comprehensive plan, the licensee shall review the ongoing Quality Confirmation Program to determine whether its scope and depth should be expanded in light of r. the hardware and programmatic problems identified to date." 16 NRC at F. :. - 1498. Although the details of the PVQC have not been submitted, the scope ir and organizational structure for the conduct of the plan is contained in [~' the proposed Course of Action. See Course of Action at 2130. The staff '. ~ J.' will review the PVQC when submitted by the licensee in accordance r.> e., with Section IV.B(2) of the order. The PVQC is subject to the approval cf the Regional Administrator, under the order.16 NRC at 1498. Based m ..j upon a review of the oucine of the PVQC in the Course of Action, the h.... ^ ' / PVQC appears to be sufficient to resolve MVPP's concern with the con- [4 ~ formance of the as-built condition of Zimmer to its design. The valida-ti:n of design documents by Sargent and Lundy will include a compari-g $ 4 4 6 .J 1470 ,o. I g f .. u., c.. 6;y, y', ,-' l' [,.h. jf 3+ .,---.-- r- ;. w.--e ~~..~ y. 9 *. w-....-----, ,4o y,

1. ",5

./.'.,'g*..,.,'., . 1 Y.

hQ a

)r l ; i- ..!p.r,..r% s v[,; r. ,a

*. x.. ' r 1

i e r.A.,, ,*,y 4 q ?v v N,, l','* . 5 ?! .. g* wI. c.m. +....,... ~. -. j - [ I. DE. ;*ii ,, 1 ..y. s t U N N h([. * ' ,~[ . Q j k i.,, '7 9.. S. g.>., A. ,fy : 4 s -5 n. 4-g. 3 a,~, ~, '. \\ s a,

' '( a._ . ~. ~ ^. d son "to the as-constructed condition through visual and, as appropriate, physical inspections, as described in the COA." Letter from Joe Williams, Jr., Senior Vice President, Cincinnati Gas and Electric Co. to James G. Keppler, Regional Administrator, NRC Region til (November 21,1983). The licensee has also stated that the PVQC will include "[p]hysical inspections of safety-related systems, structures or components... as necessary and appropriate to inspect nonvisual attri. bute requirements of design drawings and specifications." Areas to be ~ physically inspected include items identified by the NET team and "in public allegations now on file." Letter from Joe Williams, Jr. to James G. Keppler, Attachment at 2-3 (November 18, 1983). 1 The NRC itself remains substantially involved in oversight of the ac-tivities at Zimmer. As noted above, the Commission's order, in addition to requiring that the Region Ill Administrator approve the licensee's t. course of action, also requires that the PVQC be subject to his approval. 1 - CLI 82-33,16 NRC at 1498. The stalT will also continue its routine in-spection activities at the site. Moreover, the Commission's order re. quires that the PVQC " include an audit by a qualified outside i organization, which did not perform the activities being audited, to verify the adequacy of the quality of construction...." /d. The require-1 1.. ment that a qualified, outside organization audit the PVQC and the I NRC's own inspection presence at Zimmer should also help assure that the licensee and its agents adhere to the plan it has proposed to verify 4 J the quality of construction. Any inadequacies in the licensee's ongoing quality confirmation program should also be resolved by implementation ) of the licensee's Course of Action. Based upon the stalTs review of the matters set forth in MVPP's peti' ) tion and its review of the Course of Action proposed by CG&E, I find that there is no basis at this time to suspend the QCP or to remove CG&E from responsibility for quality assurance and verification efforts. l Accordingly, the petitioner's request is denied. i l ? Richard C. DeYoung, Director i Office ofInspection and Enforcement l Dated at Bethesda, Maryland, this 14th day of December 1983. t 1471 i l i v% et W .g +. n

.,.l Ny

~ ~

• - l $ '*

r

r

[#,S' 4 H: = .., ~ 'g._ e i 2

F ~ Denials of Petitions for Rulemaking Ad l I t k i ~ r I k O e 5 4 b / L 1

m___.__.. Cite as 18 NRC 1473 (1983) DPRM 83-3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION s. ~ COMMISSIONERS: Nunzio J. Palladino, Chairman Victor Gilinsky Thomas M. Roberts James K. Asselstine Frederick M. Bernthal In the Matter of Docket No. PRM 80-1 STATES OF TEXAS, WISCONSIN, MINNESOTA, NEVADA, AND UTAH December 9,1983 The Commission denies a petition for rulemaking by several States who proposed that the NRC adopt certain formal procedures for Com-mission concurrence in siting guidelines proposed by the Department of Energy for high level radioactive. waste repositories. The Commission ~ finds that the proposed procedures are not required by the Administra-tive Procedure Act or the Nuclear Waste Policy Act of 1982 and that petitioners' concerns are addressed adequately by the opportunity to publicly address the Commission on DOE's siting guidelines. c NUCLEAR WASTE POLICY ACT: NRC CONCURRENCE IN DOE SITING GUIDELINES (STATUTORY RESPONSIBILITY) Neither the Nuclear Waste Policy Act nor the Administrative Proce-dure Act requires the Commission to adopt any particular procedures in determining whether to concur in DOE's siting guidelines. T i 1473 i i ,e - _. - -* o J s j l 'l t u v I l

• )

I ~ o _.~ _... _ _ _. - _ _ ~. - _.. i i NUCLEAR WASTE POLICY ACT: NRC CONCURRENCE IN DOE SITING GUIDELINES (STATE ROLE) Nothing in the Nuclear Waste Polic;' Act suggests that States have a special role in the NRC concurrence process that would mandate the use of formal procedures NUCLEAR WASTE POLICY ACT: NRC CONCURRENCE IN DOE SITING GUIDELINES (RULEMAKING) NRC concurrence in DOE siting guidelines is not rulemaking under the Administrative Procedure Act. NUCLEAR WASTE POLICY ACT: NRC CONCURRENCE IN DOE SITING GUIDELINES (AMENDMENTS TO GUIDELINES) b Under the Nuclear Waste Policy Act, DOE must obtain NRC concur-rence in any proposed amendments to the DOE siting guidelines. = DENIAL OF PETITION FOR RULEMAKING t I. BACKGROUND t On September 2,1983, Mr. Ken Cross, an Assistant Attorney General for the State of Texas, on behalf of the States of Texas, Wisconsin, Minnesota, Nevada and Utah (" Petitioners"), petitioned the Commis-sion to adopt a proposed rule that would have established procedures for public participation in the Commission's concurrence in DOE's siting guidelines for high level radioactive waste repositories. The Commission is mindful of the importance of its role to concur in y the DOE siting guidelines and recognizes the Petitioners' interest in the guidelines. However, the Commission believes that the opportunity for oral presentation to the Commission will provide an adequate opportuni. ty for Petitioners to express their concerns and for the Commission to understand those concerns. 4 a I474 R w f er** Dg { t*m.*1er'",Fe=e****'*%"*WP***. s******M

• • '.',*"******""9NM are F"

}: > l,* jy G *( L 9.' r g,;" ,, ~ . d k j ;. y "l i ^ s-I g h* ,f,* t,t y ,t } ~ s t, .d?

4 L l,'- 1- .c-s The benefits of oral presentation include the discipline imposed on J- a - ~ the participants to focus their concerns and the opportunity for give-4 and-take between the participants and the Commissioners. Additional i opportunity for written comment as Petitioners propose ~ might enlarge i the body of information before the Commission; however, this fact must be weighed against the time it would take to complete the proce- ~- dures in this case because the NWPA objectives include timeliness. On the basis of its experience with rulemakings, the Commission believes ./ that the procedures could not be completed in less than 9-12 months. Therefore, given the opportunity for oral and written presentation to the Commission, the record of public participation before DOE, and the i interest in a timely (and fair) concurrence process, the Commission j denies the petition. i L II. THE PETITION 1 ~ The text of Petitioners' proposed rule appears at 48 Fed. Reg. j 48,473-74 (1983).' Essentially, Petitioners proposed that the Commis-sion adopt the following steps in its process for concurring in DOE's j i siting guidelines:

1. A DOE request for NRC concurrence on proposed guidelines l

would be supported by: (a) a description of the technical l rationale behind the guideline objectives; (b) a full description of DOE's decision process; and (c) a list of issues for which 4 l DOE wishes Commission review. } f ~ i i i I Attached to the comment submitted by the Department of Energy and Transportation of the state of Missisosppi is a copy of a letter to the Commismon deced september 13, IN3 giving notice of that i state's intent to join the state of Texas as a co-petitioner end suggesting a rnodencation to the proposed rule to add a public heenne on any NRC dran analysse of doe's guidelines. The Commission has no ( i record of receiving that letter before it received Mismemppi's comment (dened November I, IM3). j Thus, the Commission received Missisappi's proposei too late to treet it as part of the petition. Moreover, the state of Mississippe did not inform the Commission that the NRC's october 19, IM3 notice c(receipt of the Petitioners' petition for rulemaking made no mention of the siete of Miemesippi's september 13. IM3 letter. In any event. the Commismon believes that publication o(the state of Mis-l sissippi's proposal would not have menincantly effected the commente received. Indeed. the southwest Research information Council, serious Texans Against Nuclear Dumping and People opposed to Wested Energy Repostory commented on the state of Missisosppi's proposal. In conadering these - comsnente, the Commission treated Miamesippi's proposal as a comment on the petition. The Commis-sion's decision to deny the Petitioners' petition does not depend on the Ane tuning of procedural -I proposale. Rather, it is based on the Commission's determination that the proposed procedures are not i legeity required and would result in delay contrary to the public interest. Under these circumstances. the Commismon determined that Mienemppi's suggestion could he addressed without publication, especially 4 in light of the Commismon's having the benent of commente supporting that suggestion. accouse the state of Missiemppt's proposal would have added even more procedures to the NRC's concurrence process, those additional procedures must also be rejected for the same reasons. 4 4 I j i 1475 4 i e-M w.+ *,apa e= 3ye. _ ,-, _ Swm _ -+ ' J. ri - ,-[. 1 e {# [* h* m. .xx '. f*s t i

w n

.g. 6 L..__..__ .___.,_j,,,, .,.2 l, i I

2. NRC would publish notice of receipt of DOE's request along with an NRC stalireview of that request. Copies v.ould also be provided to affected States and Indian tribes

3. Subsequently, the NRC stalT would publish for comment a draft analysis of the proposed guidelines. Affected States and Indian tribes would also be asked to comment.

4. After a comment period of at least sixty days, the NRC stafi would publish a final analysis of the guidelines and provide j

copies directly to the affected States and Indian tribes. The Commission could then offer a discretionary public hearing on the staff's final analysis. S. The Commission would then decide on whether or not to p concur in DOE's proposed guidelines. These procedures would also apply to any DOE proposals to revise the siting guidelines. i A. Bases for Regnest DOE has notified three of the petitioners, the States of Texas, Nevada and Utah, that they have within their borders one or more potentially ac-t ceptable sites for the first high level radioactive waste repository. These States believe that this circumstance provides them with an interest in a formalized mechanism by which they can participate in the NRC concur-rence process. DOE has informed the other two petitioners, the States of Wisconsin and Minnesota, that they are potential candidates for a second waste repository. Accordingly, these States are also interested in t participating in the NRC's concurrence in DOE's guidelines and in any pr: posed amendments to those guidelines. Petitioners discussed three reasons supporting their belief that the NRC should adopt the proposed formalized concurrence procedure: (1) the procedures will promote NRC's distinctive role under the Nucle. ~ cr Waste Policy Act of 1982 (NWPA); (2) NRC concurrence is rulemak- ~ ing or its equivalent; and (3) the procedures are familiar and useful. (' ~ 1. The Procedures WillPromene NRC's Role Under NWPA ^ Petitioners contend that the NRC's concurrence role under the NWPA indicates a congressional intent to attach special significance to , /.; - NRC's concurrence in DOE's siting guidelines. Petitioners believe that their proposed rule will promote that congressional intent. Petitioners clso contend that their proposed rule is a necessary and desirable means f:t promoting the NRC's distinctive role in developing the guidelines. .i \\ 'k q~ 1474 o s E8 a F gP g t e a e. i 4 ,6 ) ... b.,.. ;. a e

• .l[,.&:.*,.s. $.;.' e[ -

, '. 'U..

~. '/s. - ? n *lr ; [ s'lf..,'I.. b. '! * * ,5 ~ " O, L y ;.,* ' c! $. -, '7l *.*.. -*t,, l* o! i*n s,, s 4,- - '

y

.e M ; q. ~ * 's'

". r s '

~ ic ' $.~',k.Y,!?;3

• b *,l G**l.

? - ~l f !..*.;.h b:;?q .Y.. e. ' ' /./. i,[D;i u ..c s jpp

• @ \\.; y g 'I. t

, (*. k .li.

N -

' ZSlr - df*); e C1 M(M Q

• +

4'((., [,C ( ;p. [. ,7 , i..* 2-w wm y, i 'er" M . 9':' tf ' e

e;~ They argue that by providing for public participation in the concurrence process, the proposed rule will help to ensure that the siting guidelines reflect NRC policies because the public will have an opportunity to point out inconsistencies between the guidelines and NRC's technicallicensing regulations. a L 2. Nt?C Concurrence is Rulemaking or its Equivalent Petitioners contend that the act of concurrence or non concurrence is a n act of rulemaking subject to the notice and comment procedures of the Administrative Procedure Act (APA). In Petitioners' view, NRC's concurrence is an act of adoption of DOE's guidelines sufficient to make them an NRC rule. Accordingly, Petitioners believe that their proposed rulemaking procedures wculd satisfy the NRC's obligations under the APA to conduct a rulemaking on concurrence. 3. The Procedures Are Familiar and Useful Petitioners believe that their procedures closely resemble those in 10 C.F.R. j 60.11 for NRC oversight of DOE site characterization of high. level waste repositories. Petitioners also believe that their proposed procedures would be useful because they would apply also to any pro-posed amendments to the siting guidelines. III. COMMENTS ON THE PETITION s On October 19, 1983 the Commission published the text of the peti-tion and a request for comments on it in the federal Register. 48 Fed. t Reg. 48,473. Although the comment period closed on November 2, 1961, the notice provided that late comments would be considered if it was oractical to do so. The Commission received seventeen letters of c comn'ent in response to the notice, including one late comment that it was able to consider.2 l Seven commenters opposed the proposed rule: the American Nucle-ar Energy Counsel ("ANEC"); the Atomic industrial Forum's Subcom-mittee on High Level Radioactive Waste ("AIF"); the Edison Electric Institute joined by the Utility Nuclear Waste Management Group 2 The, Commission also received thre* mailgrams trom private citizens in Mississippi who stated their support ror the petition submitted by she Depntment or Energy and Transportation or the state or Missiseeppi. As noted above, the Commu.on is denying that petnion as well because it requested proce. l dures beyond those that the Commissid.1 has already determined are unnecessary and contrary to the i public interest. I i 1477 i l emM n.;, + g. $ 'i e' b s 4 Q 4

a j .m 1 ("EEI/UNWMG"); Duke Power Company (" Duke"); the U.S. Depart-ment of Energy (" DOE"); Middle South Services, Inc. (" MSS"); and Carolina Power and Light Company ("CP&L"). ANEC, the AIF and MSS contended that the NWPA does not require or support the proposed procedures. MSS stated its belief that if Con-gress had wanted formal rulemaking procedures for NRC concurrence it would have required such procedt;res. Because Congress did not so provide, MSS and ANEC concluded that such procedures would contra-dict Congress' intent that the guidelines be established expeditiously. only 180 days after enactment of the NWPA. eel /UNWMG and CP&L believe that the public meeting which the Commission has stated it will [ hold prior to a decision on concurrence serves to promote the NRC's } distinctive role under the NWPA as well as the Petitioners' need to pre-t sent their views directly to the Commission. Most commenters opposing the petition noted that the Commission, in response to a similar petition filed by the Yakima Indian Nation, had already rejected the contention that concurrence was rulemaking for the F purposes of the APA. They also contended that a separate NRC rulemaking on concurrence would be redundant, time-consuming and wasteful of resources. DOE noted that its extensive public comment i process on the guidelines has already aired the issues which the Commis-l sion will consider in determining whether to concur in those guidelines. And Duke noted that DOE has provided all those public comments to the Commission. Accordingly, these commenters concluded that Peti-tioners' proposed procedures were neither necessary nor desirable be-cause they were redundant.) Ten commenters supported the proposed rule: the Yakima Indian Nation; the State of Mississippi Department of Energy and Transportation; the Natural Resources Defense Council ("NRDC"); Hector & Associates representing Serious Texans Against Nuclear ~ Dumping and People Opposed to Waste Energy Repository . ~ (" STAND / POWER"); POWER; the Southwest Research and Informa-

f.. -

tion Center ("SRIC"); the Nebraska Energy Office; Citizen Alert; the State of Wisconsin Department of Justice; and the Texas House-Senate Joint Study Committee on Hazardous Waste Disposal. Several of these y JDoE also stated that NRC concurrence is required by the end of 1983 ir doe is to meet the statutory + l deadline or January 1.1985 for recommendmg three sites to the President for characterization. While 2 l the Commission recognizes doe's legitimate desires to conform to time schedJies in the NWPA. doe's position is not reoperly included in the bases for the Commission's decision. The Commission's decision here cannot be based on the assumption that it will concur in doe's guidelmes by any particu. lar time. 4 s 4 ~4 1478 2 t y.\\ ~ ,+., F 'O e r f. oan .-e W'- + Z 'I.'

• .,I**,

1 ^=# g 8, \\ 3 '? 3; { 'f

.11 - '

-~' ' ' ~ . e ._ ~ h tl &_ ?.jN; ',,.i$ a "h q.2,.?l.? l K a ' <LO ,c ,, m:,. 2 ;. ~ .w. e. r,. <s r y: w

• b ri * <*N'-

W[MR;, hf(.k," t yl?' i.*Y^',_ * ?. ' id -." . c 2* I.. , M I',.. !.,-~- C.L J : 1 [- 7 ' ' ' -L ' ' +.: .~

- r @.-g.t,. ;

v.. y, 97- - ~ ,sr. \\ ;,: 7,) (' q m.f ~- 4.. 4*

• 7 s. ?... _ r

,,+4.. .c ( g,7 . -x - - - x,, , - s >'Jd.p:.

'c a 4* commenters contended that concurrence is rulemaking.* They also stated that the proposed procedures would provide a better procedural framework than a public hearing for informing the Commission of the public's concerns.s This is especially so because they believe that DOE . l, has made numerous material changes to the proposed guidelines since the last opportunity for public comment to DOE. NRDC believes that DOE's most recent changes to the guidelines warrant an opportunity to provide written comments to the Commission. Some commenters be-lieve that the proposed procedures would promote NRC's distinctive concurrence role under the NWPA, and would guarantee public partici-pation in that concurrence. STAND / POWER, SRIC, and the State of Wisconsin Department of Justice urged that the establishment of these procedures now would provide a consistent procedure for the Commis-sion's consideration of modifications to the guidelines. These commen-ters believe that such modifications will be necessary after EPA promul-gates final repository standards under Section ll2(a)'of the NWPA and before the guidelines can be applied to the second repository. IV. COMMISSION DECISION = ' For the following reasons, the Commission denies the Petitioners' re- ? quest for rulemaking. A. NRC's Role Under NWPA ~ There is no doubt that Congress' upgrading the NRC's role from con-sultation to concurring in the guidelines' indicates a congressional intent to create a special role for the NRC in the promulgation of DOE's siting guidelines. However, Petitioners have, failed to identify any basis for

• The state of wisconsin Department of Jusuce took the position that unlike the petition by the Yakima Indian Nauon, adoption of the procedures proposed by this petition does not depend on the conclusion that the Commission's concurretice is rulemaking. Rather, Wisconsin stated that this petition is pre-mised on the state's belief that formahzed procedures are necessary to ensure public participation in the NRC's concurrence process. As discussed in this decision, such formalized procedures are not legally necessary, are not required in light of the Commission's previous decision to permit pubhc participation in the coricurrence process, and are not desirable because they would unnecessarily delay the concur-rence process.

3 sRIC and STAND / POWER also suggested that the Commission distribute directly to interested mem-bers of the public any NRC staff analysis of DOE's guidelines, and Citizen Alert suggested that the NRC hold public heanngs in doe target states. As discussed above ha note 2, the Commission's deci-sion does not depend on fine-tuned procedural proposals. Rather, the Commission has found contrary to the p0blic interest any elaborate procedures that would unduly delay its decision on whether to concur in doe's guidelines. Moreover, the Commission has recently requested prospective participants in the public meeung on the guidelines to identify their representatives. 48 Fed. Reg. 50.432 (1983). Any per-sons who will not be able to attend that meetmg will shil have an opportunity to express their views by submitting them to those representatives. ; r i 1479 l [g:. A h! l 7- ' eg.

M.-

u

?

o w -.:. =.u.. -...-~ I their belief that their proposed rule will promote that congressional intent. If Congress had wanted the concurrence process to be a public rulemaking, it could have easily so required.' Rather, Congress gave DOE 180 days to develop siting guidelines and to obtain the NRC's con-currence in them. This schedule expresses a clear congressional intent that the guidelines were to be completed expeditiously. Since concur-rence is only the final stage of the lengthier process of developing the guidelines, Congress could not have intended the NRC's concurrence ~ process to be a lengthy public proceeding. The Petitioners also appear to believe that their request for forma! '{ procedures is supported by the special role of potential host States under the NWPA. That Act does give potential host States special considera-tion in specific steps of the repository development process. But nothing l in the NWPA suggests that these States have a special role in the NRC concurrence process that would mandate the use of formal procedures. Petitioners further suggest that their proposed procedures will help to ensure that the guidelines reflect NRC policies and are consistent with NRC rules. The Commission believes that the primary purpose of public comments is to help the NRC formulate its policy rather than to deter. mine consistency of the guidelines with NRC regulations. However, as discussed below, at the public meeting the Commission will also enter-tain comments on the consistency of DOE's siting guidelines with the NRC's requirements in 10 C.F.R. Part 60. Because both!of these pur-f poses can be accommodated at the public meeting, there is no need for the lengthier, more formal concurrence procedures proposed in the petition. For these reasons, the Commission finds that nothing in NWPA 'sup-ports Petitioners' proposal. v B. NRC Concurrence as Rulemaking The NRC has already considered and rejected this proposition in its re-a; ' -C - sponse to the petition by the Yakima Indian Nation. CL183-26,18 NRC 1139 (1983); 48 Fed. Reg. 39,536 (1983). Neither the Petitioners nor any commenter has provided any additional support for this proposition. Accordingly, the Commission finds no basis for reconsidering its previ- ,, yer; ous decision rejecting this proposition as unfounded. ,. \\ J, 6 Sec. for example, section 404 or the Department or Enersy organisation Act or 1977. 42 U.s.C. 57174. J. ..g n ,' f l" 1480 h's e m. s (_ ~ ' A '.f.,p [ [*.,t 4 .{ '[* ~c- - "~'Q TW* Y P'?- 7,,. :. c W Q M + f if- $.b f

• N Y :; f. J 'Y

1.: Y .h '.h, ?h.;:9.g.gc. w: . bg $k 'kk . z. %:...:em.w.am :W- .., n..m, c.wl;6,.y:qp.g&gn :..;;. -g;w;f. 2 ~ L. w. . m.a.w. .. w. m. x

...

. a m..

'5 ' U.* b. e ,,.-....s. . _w-. 3;. +...

m. w#n.

. n. s. .- c s - e ,m .> w + .s p s...;mpyu

n.e

.s 7 .,3 3-

4 R 1 l l . ~ C. Familiarity and Usefulness of the Procedures Petitioners' contention that the proposed procedures are familiar does not support the adoption of those procedures in the absence of a showing of necessity or utility.' These procedures are not the only means for public participation in the concurrence process; other less time-consuming and less complex procedures, such as the established public meeting, provide adequate opportunity for public participation. As for utility, Petitioners' argument is that these procedures could be applied to any proposed amendments to the siting guidelines. The Commission believes it would be premature to establish procedures now for NRC concurrence in any amendments to the guidelines. Before doing so, the Commission would want to evaluate the effectiveness of the procedures used in determining whether to concur in the guidelines. If and when DOE proposes amendments to the guidelines, the Commission will then determine what procedures may be appropriate for its concurrence process. Finally, the Commission believes that the forthcoming public meeting on the proposed guidelines and written comment period on the Commis-sion's proposed concurrence decision will provide an adequate forum for public participation in the Commission's concurrence process. Neither the Petitioners nor the commenters have provided any basis for reaching a contrary conclusion. Even if, as some commenters claim, DOE has materially changed the-guidelines since last soliciting public comment, the participants in the Commission's meeting will have time to study DOE's final proposed guideliner before meeting with the Commission. ~ In addition, the NRC, in a companion federalRegister notice setting the schedule for the public meeting with the Commission, has identified the issues that the NRC stalT believes are important to the Commission's decision. For the most part, these issues are familiar to the participants i in DOE's rulemaking proceeding because the NRC has raised them before in its comments Of course, participants may also raise any other i issues they believe that the Commission should consider. Moreover, the 4 Commission has agreed to issue for public comment its proposed deci-sion regarding concurrence in the DOE guidelines. Thus, the public will l' ave ample opportunity to bring to the Commission's attention any per-ceived problems with DOE's final version of the guidelines and to ad-7 Petitioners' proposal is also undesirable because it would interfere with the staff's role as advisor to the Commission by requesting third-party comment on its recommendations But the stafr has the princi-l pal expertise to evaluate doe's proposals and the Commission intends to use the staffs evaluation as a basis for its decision. Thus, the Commission believes that the staff should remain an integral part or the e j agency decisionmaking team and should participate directly in advising the Commission on whether to concur. ' +j l 1481 tSL'. e a. e v >. ? n-

> + -- l- ...w... dress the issues uniquely of concern to the Commission in its concur-rence role. s D. Denial After carefully considering the petition and comments on it, the Commission, for the reasons stated above, hereby denies the petition for rulemaking in Docket No. PRM 60-1. The Commission believes that it can best implement Congress' intent for the expeditious promulgation of siting guidelines and. provide for public participation by providing the informal public meeting announced in response to the Yakima Petition. A copy of the petition for rulemaking and copies of the letters of com-ment and of the Commission's letter of denial are available for public in-spection at the Commission's Public Document Room at 1717 H Street, NW, Washington, D.C. Although Commissioner Asselstine agrees with the denial of the petition, he would have preferred a somewhat different approach for ob-taining public comments than that adopted by the Commission. Com-missioner Asselstine would have required the NRC staff to prepare and l make available for public comment the staffs evaluation of the DOE ~ guidelines and its recommendation on the Commission's concurrence decision before the Commission's public meeting. He believes that this approach would have provided a more focused basis for comments by [ r the participants in the public meeting and would have provided a more meaningful opportunity for public participation in the NRC concurrence process. Commissioner Gilinsky concurs in the result and agrees with Commis-sioner Asselstine's comment. ~ For the Commission lj SAMUEL J. CHILK Secretary of the Commission f / # l' i - Dated at Washington, D.C., .D this 9th day of December 1983. .r., .. e.' 7 ~ ' s ~.. 4 / ,1 * - - ' ^~ 1482 Y ^-

• 3p O

}, g

• ,D 0

.g

• 2

+. t N -~ ' f, s. - . ~ g."V V T**'**. . -w ht;[i a [n.. s 7 % '%.). ** - . ~.,. ' ' * ' b N.I

(I et

,2'. a f' A;,y". y'm s e,. 1 - n %: * ". q-2

e. 3

,~6 s ~ ~:

c..

,..'?_. pf-;. 9.-'e, .T ,=.. *,.,.,, .u o e-J-..% J, ;, '. '., n'. - a a. ' ~ [' { %l ' s. ,s O Y. . E. t s;. [ eY s. e l, } L'l .,;) N i'l Q,?.'fl e 'I ' -;.9 7y_. 1 l:l;s} - ?h. l. i' eff? ')NO f Dh: ~ .+ : n.m-e - ~ < - '.,2. o. .- 2 }*I ^*J'; - ' ~ % y>k'M@ ^' ' M' 1; 1 IL. w.W. m k '~d ,1._r -*J 7 f _;}}