ML20106J540

Comments on Immediate Effectiveness of ASLB 841127 Decision Authorizing Full Power Operation.Public Interest Favors Operation Pending Appellate Review

ML20106J540
Person / Time
Site:	Catawba
Issue date:	12/28/1984
From:	Mccgary J, Mcgarry J, Mcgary J BISHOP, COOK, PURCELL & REYNOLDS, DUKE POWER CO., NORTH CAROLINA ELECTRIC MEMBERSHIP CORP., NORTH CAROLINA MUNICIPAL POWER AGENCIES, SALUDA RIVER ELECTRIC COOPERATIVE, INC.
To:	Asselstine J, Bernthal F, Palladino N, Roberts T, Zech L NRC COMMISSION (OCM)
References
CON-#185-865 OL, NUDOCS 8502150681
Download: ML20106J540 (42)

Text

{{#Wiki_filter:C k LAW OFFICES OF b)CIUf) U%cr BISHOP, LIBERM AN, COOK, PURCELL & REYNOLDS I200 S EVE NTE E NTH ST R E ET, N.W. IN N EW YORM WAS HI N GTON, o.c.2O O 36 84 28 P3 :Ns oR. <,eER-.~ s Coo, (202)857-9800 h 55 AVENU E CF TH E AM E RiC AS i-o N EW YORM. N E W YO R n 4C036 ..[d ', f ' ~ ].j{2 I (2 :217 o4-o s o o TELE x 440574 INTLAW UI I S A, 'UL "*I' TELEX 222767 W RITE R*$ DIR ECT D4 A L (2023 December 28, 1984 Chairman Nunzio J. Palladino Commissioner Thomas M. Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal Commissioner Lando W. Zech, Jr. United States Nuclear Regulatory Commission Washington, D.C. 20555

Subject:

Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), Docket Nos. 50-413 and 50-414 0 L_ Gentlemen: Pursuant to 10 C.F.R. $2.764(f)(2), Duke Power Company, North Carolina Municipal Power Agency Number 1, North Carolina Electric Membership Corporation, and Saluda River Electric Cooperative, Incorporated (" Applicants") herein submit to the Commission their comments pertaining to the immediate effectiveness of the November 27, 1984 decision of the Atomic Safety and Licensing Board (" Licensing Board") authorizing full ' power operation of Catawba Units 1 and 2.1/ 1/ The date for filing comments was extended to today's date by Commission Order of December 12, 1984. 8502150681 841228 PDR COMMS NRCC CORRESPONDENCE PDR .d'-

q _fs. ~ ~ A _21-1 ~' -- e; } section :2.764( f) (1)(i)? provide's' for an l automatic-stay.of effe'ctivenesstof_ Licensing Board decisions l authorizing;operationi ~ E ~ -atigreater than=five' percent; power _pending commission ~ review.. Inn- ~ conductingLitstreview,':the' Commission willlstay'.further the-f- decision-

if'itidetermines that.it isLin.the public..interestito do!so,': based on a consideration of [1.]..the gravity of the substantive issue, [2.] the likelihood that it'has

.been-resolved incorrectly below, [3.]lthe degree to' which correct resolution of the issue would be. pre-judiced byLoperation pending review,'and [4 3.other relevant public. interest factors. 10 C.F.R. $2.764(f)(2)'(i) 2/- Applying these criteria, Applicants submit'that'there.is no reason to stay the effectivene'ss of the Licensing Board decision authorizing full' power operation of Catawba. Thel Licensing Board' authorization of full power operation issued only after a lengthy ~ hearing _ process in which Palmetto Alliance and Carolina Environmental Study Group ("Intervenors")lwere given~ ample opportunity to litigate their concerns. Indeed, this operating license proceeding has consumed almost-three and'a1 half years. Sixty-five days of hearings have been held in three -phases, and have resulted in.three separate Partial Initial Decisions.:See. Duke' Power Co., et al. (Catawba Nuclear Station, Units 1 & 2), LBP-84-24, 19 NRC 1418.(June 22, 1984)(resolving all' safety and environmental issues except for two narrow safety-issues); Duke Power Co.,1st'al. (Catawba Nuclear Station, Units 1.& 2), LBP-: 2/ The Commission's review pursuant to' 52.764( f) Lis without prejudice to. normal appellate review by the Appeal Board and-Commission. See Duke Power Co. (William'B. McGuire Nuclear Station,. Units 1 & 2), CLI-81-15, 14 NRC 1, 2 (1981). +. h-w-

c. e-84-37, 20 NRC-

-(Sept. 18, 1984)(resolving'all emergency -planning issues);- Duke Power Co., et al. (Catawba Nuclear Station, Units 1 & 2), LBP 20 NRC (Nov. 27' 1984) (resolving the_ remaining-deferred safety issue, denominated " foreman override").3_/- The bulk-of the: hearing time was devoted to' cross-examination by Intervenors of the 167 witnesses who . testified,' producing a hea' ring transcript of approximately 20,000 ~ pages and the admission of over 395 exhibits. After considering all the evidence presented, the Licensing Board correctly resolved those issues-before it. 'In sum, the public interest would not be served by delaying operation of Catawba; the record in this proceeding clearly and fully supports the Licensing Board's determination that Applicants met their burden of proof with respect to the contentions raised by the Intervenors. Under such circumstances Applicants would have nothing further to add.-

However, Intervenors have unsuccessfully-sought stays before boti the Licensing Board (see Tr. 14,435-14,486) and the Appeal Board.

See Appeal Board Memorandum and Order, December 4, 1984 (denying Intervenors' oral stay application);-Intervenors' " Application For A Stay Pending Administrative and' Judicial Review" filed with the Appeal Board on December 10, 1984; Duke Power Co., et al. 3/ The other deferred _ safety issue involving the diesel generators was dismissed by the Licensing Board. See discussion in Section I.B.1, infra. e

- s (Catawba Nuclear.' Station,' Units 1 and 2), ALAB-794, 20 NRC (Dec. 24 1984)(denying Intervenors'~ written stay application).d/ Therein they have raised the following matters: A. Litigated Quality Assurance Allegations 1. The 1981 SALP Report 2.~ Application of the Callaway standard 3. Time allotted for discovery 4. " Foreman Override" and sensitization of welds B. Rejected Contentions 1. . Diesel generators 2. Hydrogen control 3. Control room design 4. Financial qualifications 5. Environmental impacts of severe accidents 6. Cost / benefit of facility (need for/ power) 7. Transshipment of spent fuel to Catawba Additionally, persons affiliated with the Intervenors have directly contacted members of the Commission on several occasions on various issues.1/ Inasmuch as it is conceivable that tlue Commission might wish to have information concerning any of these matters, Applicants feel compelled to address each one.5/ i/ Intervenors have also indicated that they would seek stay relief in the Courts and have filed preliminary documents in Docket No. 84-1590. 1/

See, e.g.,

Memorandum for William C. Clements, Chief Docketing ad Services Branch, from Patricia R. Davis, Legal Assistant, Office of Conmissioner Asselstine (Dec. 6, 1984); Memorandum to Files from Patricia Davis, Legal Assistant, Office of Commissioner Asselstine (Oct. 11, 1984). The Commission should be aware that Ms. Sapp provided assistance on a regular basis to Intervenors; that Ms. Duggan is an officer in CESG; and that, Ms. Welles has provided as'sistance to Intervenors on several occasions. 1/ In'this regard, Applicants recognize that 2.764(f)(2)(ii) contemplates the submittal of "brief comments" by the parties, and that our comments may seem excessively long by this standard. However, the importance to Applicants of the ( footnote continued) c

^ 3: - u_ .I. LThe Intervenors_have not raised any-substantive-issues of sufficient gravity .to merit afstay; the enumerated issues were resolved correctly by the licensing board ~~ In this section the Applicants address ' together the firstL two factors relevant _to the Commission's immediate' effectiveness ce review: .l.)' "the gravity of.the substantive issue"; and 2.) "the likelihood that it has beenl resolved incorrectly below." See 10 C.F.R. $2.764(f)(2)(1). The Intervenors' eleven allegations raised before the Appeal Board can be broken down into two categories: those that involve matters associated with litigated issues; and, those that involve rulings dismissingL ~ contentions from the proceeding. These are addressed below in th order'they were raised. Applicants note'that none of either category of these allegations were deemed sufficiently compelling by the Appeal Board to warrant a stay. A. The Litigated Issues Are Not Of Sufficient Gravity To Merit A Stay And Were Properly. Resolved in Applicants' Favor With respect to those matters involving litigated issues, Applicants' comments will be brief, due to the fact that in our ..s view these matters are either' amply supported by the evidence and reflected in one of the Licensing Board's Partial Initial Decisions or:were properly resolved in appropriate Licensing Board decisions. Each of these matters is-discussed below. (footnote continued from previous page) Licensing Board's decisions in this operating license pre eeding cannot'be' overestimated. s

6. '1. 'The 1981 SALP Report The NRC's 1981 Systematic. Assessment of Licensee Performance ("SALP") Report, NUREG-0834,-rated Catawba "below average" based upon 1979-1980 data. The Licensing Board evaluated the SALP-IReport in_its June 22, _1984 Partial Initial Decision, and found that it was "not entitled to very much weight." 19 NRC'at 1457. Subsequent SALP reports rated Catawba substantially higher (Tr. 2510-11; Apps. Exh. 1, Owen, p. 19; Apps. Exh. 2, Grier, p. 35), and the-NRC Staff "now support the Applicants' OA program without significant reservation." 19 NRC at 1457. Furthermore, the Licensing Board found, "[t]his Board and the parties, through the hearing process, have performed a far more thorough and critical review of the Catawba QA program than the Staff SALP review," and,-in sum, the " evidence adverse to the Applicants fairly E derivable from 1981 SALP is far outweighed by other favorable evidence in the record." Id. at 1457-58. The Licensing Board also stated that in any attempt to compare Catawba with other plants, such as Zimmer, rated "below average" in that 1981 SALP Report, "[t]he factors bearing on such a comparison would be so diverse as to render it virtually useless." Id. 2. Application of the Callaway Standard The standard for Licensing Boards to use in reviewing construction quality and quality assurance programs was set out by the-Appeal Board in Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 345-47, pet. for reconsid. denied,

7- .ALAB-750,;18 NRC 1205, as modified, ALAB-750A, 18.NRC 1218 (1983). -Therein, the Appeal Board recognized that'in-the construction of'a nuclear power plant: (1) there will inevitably be construction defects;f(2) there is no requirement that_there -be "zero defect": construction; and (3) even assuming all deficiencies are detected.and corrected, there must be an inquiry into whether there' has been a pervasive breakdown' of quality _ assurance procedures such as to call into question'the ability of the plant to operate safely. See ALAB-740, 18 NRC at 346; see also Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-756, 18'NRC [340, 1345~(1983). A review of the record demonstrates that the Licensing Board correctly applied the Callaway standard.1/ The Licensing Board, presiding over extensive adjudicatory hearings,. properly concluded that those quality assurance lapses, including harassment and retaliation, that did occur were detected, did not result in deficient work, were isolated in nature and had been corrected by Applicants; accordingly, such lapses did not call 7/ In addition to challenging the Licensing Board's application of Callaway, Intervenors argued before the Licensing Board that since Callaway had never been subject to-review, that in itself was sufficient reason for granting a stay. Contrary to Intervenors' claim, the Callaway standard is-not."new." It is based upon the reasonable assurance finding articulated in the Commission's regulations, 10 C.F.R.-$50.57(a)(3)(i), and concurred.in by the U.S.-Supreme Court in 1961 in Power: Reactor Development Corp. v. International Union, 367 U.S. 396,_407 (1961). See also Citizens for Safe Power v. NRC, 524 F.2d 1291, 1298 (D.C. Cir. 1975). Under that standard, perfection in plant construction and in the quality assurance program need not be demonstrated. Diablo-Canyon,'18-NRC:at 1345. i +

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m b' ;*;y. y.; - _;g_ q .r m.. 4 c T .w r (intolquestionjthe entire Catawba 1 quality assurance program. 1 .See' s m . i: ~ 19?NRC'at 1434,-1504-05,-1519-20, 1530-3?,11572,-1583-84;'20 NRC~ i [ ?,7 slip op. fat?41-42-(Nov. 27,':1984). L 3.; . Time Allotted;for Discovery- ~ e. The Licensing Board'sLdiscovery. rulings were proper.and? - : prov ded: ample time?for the:Intervenors to develop their case. l For: example l' the Intervenors.had already hadl more than1.eight ~ months (over-a-fifteen month period) for forma 17discoveryfon their QA contention-when they filed their May'1983 Erequest ~for-severaliadditional-months-of unrestricted discovery.::The-1 F } Licensing Board.found that the Intervenors had failed to 1 l demonstrate good cause for their request except in the._ area of p. welding. 'However, with respect to welding, Palmetto:was allowed 1.j' an extension of time from June 20 until July.15, 1983 to conduct-i i. numerous depositions. See June 13, 1983: Memorandum and Order. The Board's ruling was clearly proper -- and, under the circumstances, generous. i li The Licensing Board did not grant the Intervenors' September j 1983 oral motion for a " reopening" of discovery!on a document } l' which was not within the scope of Contention 6'. .See'In Camera- -Tr. 948-51. However, the Board, rather than simply'diamissing. 4 ' the: request on=the basis of the pleadings, devoted an entire day-f of hearing - time to ' questioning a panel of.. the authors of this ' document to provide it'self with sufficient information to rule on Intervenors'-request. Tr. 10,046-276. The Intervenors' 4 - suggestions-as to the composition of the panel and substantive-I t a ,-,,-i. &#,.,m 4 ,.,y m y . ~,... ~.,,,,. ~..., ,,-,..c a

9;_ areas of inquiry were largely accepted by the Board (Tr.'8946-48,- '10045-46),- and the'Intervenors1 cross-examined the-panel. Tr.- 10,162-229. It is therefore clear thatLthe: Licensing Board care' fully. considered this~ discovery request and was~able to make an' informed decision on it. On the' day _before' commencement of the evidentiary hearings on the in camera issues, the Intervenors made. a belated request-for postponement of the hearings and formal ' discovery on those-issues, which included the issue of " foreman override." See 19 NRC at 1431. 'The Board properly denied Palmetto's. request for a number of reasons other than time constraints, including the-extreme tardiness of the request,, the availability ofiinformal-discovery, the fact that these were Board witnesses, and Palmetto's overall failure to demonstrate good cause. See'19 NRC at 1431-32; Tr. 11,217-21. The discovery schedule during the " foreman-override" hearings was also adequate. As the Licensing Board noted in its November 27, 1984 Partial Initial Decision, the Intervenors made no specific objection to the Licensing Board's proposed discovery l' and hearing schedule until after the foreman override hearing began. 20 NRC slip op. at 3-4 (Nov. 27, 1984).$/ Furthermore, discovery opportunities on' foreman override did not begin on~ September 21, 1984, as Intervenors imply. On the $/ In a September 21, 1984 conference call (Tr. 12,845-48) the Licensing-Board proposed a schedule for consideration and-solicited comments from the parties in a subsequent conference call (September 25, 1984)(Tr. 12,867-905; 12,911-15).- No adverse comment was made'by Intervenors.-

'e 10 - . contrary, theissua was first' raised on November 9, 1983 by a Board witness, Mr. Nunn, a witness who was later represented at the hear'ings by counsel for Palmetto; the NRC Inspection Reports on this issue were available beginning January 31, 1984; Applicants' report was distributed: August. 3, 1984; the Staff's report was served on August-28, 1984. Foreman Override / and Sensitization 9 4. When'the record evidence'from-the " foreman override" s hearings is examined, it is highly unlikely that'the Licensing Board will be'found to have resolved the issues incorrectly.Not one of the witnesses who testified-stated that there were any bad welds at Catawba. Rather, the testimony reflects that some of the stainless steel welds in the primary coolant loop at Catawba are sensitized when evaluated in the field by ASTM A-262 Practice ~ A. See 20 NRC slip op. at 36-37 (Nov. 27 1984). The experts called by the Applicants and the NRC Staff did not link sensitization of welds in any way with improper foreman conduct, and the Licensing Board recognized that none of the isolated incidents of " foreman override" could be linked to sensitization of any welds. Id. The safety significance of the sensitization of some welds at Catawba was thus resolved as an additional independent technical concern at the hearings. Id. at 34. The Staf f's and Applicants' metallurgical experts testified repeatedly, and without contradiction, that Practice A is only an I 9/ The Licensing Board defined " foreman override" as a situation where a foreman directs a craftsman, either implicitly or explicitly, to violate procedures. See 20 NRC slip op, at 5-6 (Nov. 27, 1984).

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acceptance standard-and:thatifailure-to' meet lits? criteria ~(e.g.,

+ findingJaensitization)'does?not mean that a.weldiisfrejectable or defectivelor that;itCwillu fail; in service or. be unsafe. Tr. - s .-13!470s;13,505,i13,534, 13,867, 13,890,.13,898, 13,900.: As '. explain'ed by.the.NRC Staff's~metallurgicalJ' expert,'"there are -many welds in the field.that are. sen'sitized that never ciail in z service,.that have never failed:in. service:and that.nobody. ~ . expects:toffail innservice."~Tr. 13,898. Sensitization'is;-a concern to the' extent it could cause a. J susceptibility to intergranular stress-corrcsion: cracking .("IGSCC").-See 20 NRC slip op..at 35 (No'v. 27,- 1984).- ~However,'the phenomonon will lead to IGSCC only if! stress.andra sufficiently corrosive environment are also'both;present. See id.'at 38-39. The -record demonstrates, 'and the Licensing. Board' found, that no such environment will exist at Catawba;.thus the questioned welds will not fail in service and no IGSCC.-will occur, regardless~of the presence of sensitized welds.'. p. at-39-40.12/ 10/ Intervenors' unsuccessful written stay motion before the Appeal: Board reliedLin'part'upon the affidavit of David A. Schlissel. Neither th.is affidavit nor' the' affiant were presented by Palmetto or CESG before the Licensing Board duringLthe hearings on the issue in October 1984.1 Contrary touthe speculation.in Mr. Schlissel's affidavit,.~the Licensing Board found, based on the record evidence, that there-is no indication that sensitization can'be expected in-any'systens'at' Catawba where IGSCC might have a chance of occurring. See 20'NRC slip op.Jat 39-40 (Nov.-27, 1984).. Further,:thel Appeal Board was not? persuaded by;this 1 affidavit. See, NRC. 'ALAB-794 at pp. 7 and 8. n-, s i -- L. :.. ~

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-'5 '. > ' Conclusion 1. F Nofnew: substantive issue'ofLsufficient1 gravity to merit /the. T- .. Commission'sistaying~ operation of. Catawba above'five percent;has a been' raised.- Further,.as-demonstrated'in the-discussion abov'e, ~ witdt. respect to the. issues - that have been raised, the

• Licensing-Board's resolution.of'such! issues was correct.

Accordingly, 'neither'of the factors under'lO C.F.R. $2.764(f)(2)(1). addressed in this section supports the Commission's stayingffull-l power g operation of Catawba. a B.. The Licensing Board's rejection of-certain' - contentions'was proper and presents no 1 issues-sufficiently grave to merit a stay-With respect to those matters which were not1 the subject of ' hearings, Applicants' comments will be more ex' tensive, due to the-fact that-the record developed on each of these subjects (with-the exception of diesel generators) is necessarily' sparse. sEach of these matters is discussed below. J ,j. J l' i i i s.

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9 - .' l. - Diesel Generators ~The tortuous history of1the Licensing Board's consi,deration of' diesel generator concerns in this proceeding demonstrates that careful attention was given :to this matter and that-no issue of sufficient gravity remains to meritiaistay. On December 5, 1983', in response-to Board notifications issuedlin October and November of 1983, the Intervenors orally requested that the Licensing Board either amend the existing .l quality 1 assurance contention so'as to encompass events relevant to the'TDI generators or else accept.a late-filed diesel generator contention. See Tr. 9620-26, 9659-75. On' January 12, 1984 the Intervenors submitted orally a contention the text of-I which the Licensing Board finalized in a February 23, 1984 Order. l In a telephone conference call on February 17, 1984 the i Board admitted part of this late-filed contention,finvolving cranksha f t design adequacy. Tr. 12,541-51; See also Memorandum and Order of February 23, 1984. In compliance with the third factor of $2.714(a)(1), as interpreted in Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC

~ 1167, 1177-78,-1180-81 (1983), the Licensing Board conditioned admission and further litigation ofEthis contention upon the Intervenors obtaining, by April 2, 1984, a qualified-expert and ~ their providing the substance to'which the expert would testify. Tr. 12,548. Shortly thereafter the Board also admitted its own sua sponte' contention on diesel generators as a' result. of information provided by Applicants about-certain site-specific problems with the Catawba-diesels. See Memorandum and Order of Febroery 27, 1984 at p. 2'. -The Intervenors subsequently defaulted on their obligation to obtain a diesel generator expert and the Licensing Board consequently dismissed their contention on crankshaft design adequacy. See Order of April 13, 1984. The Board's sua sponte, Catawba-specific contention remained. On June 8, 1984. the Commission, exercising its review authority of Board sua sponte contentions,. dismissed. the Licensing Board's contention. However, upon motion by the Intervenors, the Licensing Board subsequently re-admitted the identical contention as a contention of the Intervenors. In balancing the five factors of 10 CFR 2.714(a)(1) the Board stated: As we have made clear in the past, we do not believe the present Intervenors can make a substantial cc3-tribution to these technical issues unless ' they Jare prepared to present expert testimony or at least have expert assistance in their cross-examination. The Intervenors have repeatedly indicated that they will be able to produce experts; so far, however, they have not done so. Now that the Intervenors have in hand the Applicants' report on site-specific problems at

' Catawba, they should be in a position to moveLquickly 1 to.obtain the~ appropriate expert assistance. In these circumstances, our. admission of this late contention _is conditioned upon the Intervenors' serving.by July 6, 1984 their designation of a named diesel generator expert or experts, along with a description of qual- .ifications =( resume). Failure to meet-this condition will result in dismissal of this contention. Con-versly, if this condition is met, Factor 3 [the-Intervenors contribution to the record].will favor ~ admission of the contention. LBP-84-24, 19 NRC at 1586, n.50. On. July 6, 1984, the Intervenors named a Dr. Robert Anderson as their diesel generator expert,'in apparent satisfaction of the Licensing Board's condition. -However, subsequent statements by the'Intervenors raised doubts about the availability to Intervenors of Dr. Anderson, and the role, if any, he would play in litigation of the issue. The Licensing Board accordingly issued an order clarifying its position that the Intervenors must obtain expert assistance as a condition for continued viability of the diesel generator contention. Making clear that it I expected this expert to do more than lend his-name to the proceeding to serve as a vehicle for admission of the contention, the Licensing Board gave_the Intervenors the alternative of either (1) certifying by August 1 that Dr. Anderson would review reports and be present to assist in cross-examination at the hearing; or 2) preparing and providing by August 20 a statement of their technical position prepared with the substantial assistance from qualified experts. See Memorandum and Order of July 20, 1984 at pp. 4-5. i

n- _ 16 - j ~~ On' August 1,'the Intervenors indicated by letter that they were unable'to certify Dr. Anderson's participation. 'In an August 10, 1984 conference call, the Board-denied Applicants' ~ motion.to dismiss the contention and instead provided Intervenors another opportunity to comply with its direction.,The Board indicated that by August 16 Intervenors must either certify that they. had a qualified expert who would attend the hearing and assist-them or certify that they would,.on August 21, file a statem,ent of technical position prepared with substantial expert assistance. Tr. 12,813-15. The experts who. participated in this effort were to be identified and their qualifications demonstrated. On August 16 Intervenors filed a technical position document. That, document and testimony, contrary to the explicit direction of the Board, did not address Catawba-specific diesel generator problems, nor was it prepared with the assistance of an expert. Instead, the document made certain assertions with respect to the Catawba' diesel generators, and in support of such, simply attached testimony filed on behalf of intervenors (not affiliated with PA/CESG) in the Shoreham proceedings.11/ On August 21, 1984, the Applicants and the NRC Staff filed their pre-filed testimony on the diesel generator contention, thus fulfilling their hearing preparation obligations. On August kk/ The Shoreham diesel generators are a different type and design than Catawba's. Memorandum and Orderi September 4, 1984 at 3, n.1. In addition, the Board had specifically stated that simple reliance on Shoreham was insufficient,for Intervenors to make their case at Catawba. Id. at 2-5.

22-the-Licensing Board dismissed.the contention based upon Intervenors' -default in failing to' meet the conditions properly imposed under $2.714(a)(1)(iii). See Memorandum and Order of September 4, 1984.. In lightaof the above, it was proper for the Licensing Board to take the action it did. It is well established that agencies are free.to fashion their own rules of procedure. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543 (1978). The late-contention regulations and case law have been developed in the proper exercise of this authority. See 10 C.F.R. 2.714(a)(1); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1045 (1983); Washington Public Power ~ Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1181 (1983); Mississippi-Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 1), ALAB-704, 16 NRC 1725, 1730 (1982). The Licensing Board's action is consistent with this precedent. Furthermore, the diesel generators at Catawba pose no threat to the public health and safety. The NRC Staff has thoroughly reviewed the status of TDI diesel generators, including those at Catawba. The Staff has issued'three SERs, two directly applicable to Catawba and one applicable to all plants. The overall conclusions of these reports indicate that the diesels at Catawba will provide a reliable standby source of-onsite power. See SER Supplement 4 at 8-1. I

-y A ' -- 18'- ~. ~ I2. - ~Hydrogan Control i. fIntervenors raised two" general contentions:related to an . explosive hydrogen-oxygen reaction within the: reactor containment- - 'followingsa loss-of: coolant ~ accident,'viz.,-Palmetto Contentions. ~ ~9.and 31 (CESG. Contention 2). The Licensing Board, citing.the

Appeal Board's ; decision in Rincho Seco,12/ properly rejecte'd

~ these contentions, holding that the matter was being addressedcin thelrulemaking~ process.L15 NRC 566, 584. LThe Licensing Board. recognized that hydrogen issues could be litigat'd.(pursuant to e -Commission directionll/) i f a-credible accident scenario.were postulated. Id. l Thereafter, Intervenors sought reconsideration of the 2. Licensing Board's ruling, advancing four, accident scenarios they l j maintained were credible. The Licensing Board properly-disposed of one of these accident scenarios'(stud bolt failure) by holding that litigation of this issue was barred by the doctrines of res judicata and collateral estoppel. 16 NRC 1791, 1807-08.- As to the remaining three accident scenarios, the Licensing Board determined, in again dismissing the issue, that the then on-going rulemaking directly addressed Intervenors' hydrogen concerns.14/' 4a. j 12/- Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655,-14 NRC 799, 816 (1981). i 11/ See Metropolitan Edison Company (Three Mile Island-Nuclear Station, Unit No.:1), CLI-80-16, 11 NRC 674, 675 (1980). 14/ The Licensing Board informed Intervenors that its action did not mean that they "may not have their hydrogen scenarios considered at-all." 16 NRC:at 1810. Rather, Intervenors were pointed to the ongoing rulemaking. proceeding. ' In this regard,-Applicants note that the proposed ~ rule specifically (footnote-continued) i i i,,. ,a.y-_ -_y, y ,,---e,yM,- -+,yn -wm - r, + w---, y

Id. at'1808-10. ~ Therein theILicensing Board, citing the- ~ Commission's. proposed rulemaking package (46. Fed.. Reg. 62281), . specifically; held that [t]he technical review being conducted in the rulemaking features-both depth and breadth, including ' review of the deliberate ignition' systems 11nstalled at Sequoyah and McGuire a-spectrum of degraded core accident scenarios 1. and several hydrogen. combination phenomena.' Id. at.62282. 16 NRC at 1809-10.- On April 12, 1984 Intervenors renewed their hydrogen generation contentions, seeking "an opportunity to litigate the plainly credible accident scenarios." Again, the Licensing Board properly dismissed the contentions on the basis;of the ongoing rulemaking. 19 NRC at 1425 n.3.ll/ It is-well established that "the choice made between proceeding by general rule or by individual, ad' hoc litigat' ion is one that lies primarily within the informed discretion of the Bell Aerospace Co., 416'U.S. administrative agency." N.L.R.B. v. 267, 293 (1974). In ruling out the contentions because the/ issue raised was being addressed in a pending rulemaking, the Licensing f (footnote continued-from previous page) requested comment on hydrogen gen'eration scenarios that should be' considered, and provided a listing of those scenarios ~which the Commission was considering. 46' Fed. Reg. 62283-84.(1981). An examination of the rulemaking record indicates that Intervenors failed to comment. 11/ Intervenors' pleading challenged the Licensing Board's ruling dismissing'three~ accident scenarios on-the basis of ongoing rulemaking. Intervenors did<not challenge the Board's ruling regarding the fourth 2 scenario (stud bolts). Litigation of this issue should be viewed as waived. 1 k

~ r x ' A Board was exercising sound discretion. See Union of Concerned ~ Scientists v. AEC, 499 F.2d 1069, 1086-91 (D.C.'Cir. 1974); Ecology Action v. AEC, 492 F.2d 998, 1002 (2nd Cir. 1974). The subject rulemaking.was finalized by a vote of this Commission in.a.public session on December 10, 1984.- Supplemental information supporting the final rule, and the rulemaking record, makes clear that in adopting the final rule, the Commission, consistent with -the Licensing Board's decision (16 NRC at 1809-10) as well as the Appeal Board's Rancho Seco decision, found (1) that the use of distributive ignition systems in general, and the ignition system installed at McGuire (virtually identical to that installed at Catawba (Catawba SER Supplement 2, Section 6.2.5, June 1984)) in particular, was acceptable in meeting the hydrogen control requirements imposed; (see, e.g., SECY 83-357A, at 3, 8, 10; Enclosure F at 5, 13, 15-16; Enclosure G at 4, 6, 8, 9, 12-13; see particularly Enclosure G, 9, wherein it is stated that the backfit required to meet the regulations would only be applicable to the five operating plants [ including McGuire] and they have already had the required modifications made [1.e., their hydrogen control systems comply with the regulation]);16/ (2) that a representative spectrum of 16/ In this regard, the Appeal Board just recently stated: As a matter of fact, Catawba's ice condenser containment and associated hydrogen mitigation system are not totally unique. They are to be found, for example, at Duke Power Company's McGuire facility. In affirming the Licensing Board's authorization of operating licenses for McGuire, we discussed the hydrogen mitigation system at considerable length. See Duke Power Co. (William B. ( footnote continue <1)

r -i.21,- s.: c Y ^ degraded 1 core accident' scenarios were= addressed; (see, e.g., SECY-84-357A ath 8 wherein it? is ' stated:: "Since the' commission L has already considerednthe PWR ice condenserlplants.during -it's1 - deliberations on-the McGuire and~Sequoyah cases,acceptabl.e accidentiscenarios are. established"; see also, Enclosure F at. > 16);-.(3)oand that several hydrogen combination phenomena'were considered. g In-this regard, it:is.important to note tiiat. the' cost / benefit document. accompanying'the Commiasion's: hydrogen. rule (SECY-83-357A,. Enclosure G) focused on the distributive ignition system used-in McGuire and Catawba;as the basis for its cost analysis and in its benefits section realized: 7 =the net result of codifying these requirements into the NRC regulations will be to eliminate the need for redundant litigation of this particular hydrogen ' control issue:in future licensing cases. [Id.:at p. 1 l 13 ].. -~ While Applicants maintain that.the Licensing Board correctly rejected Intervenors' hydrogen control contention's based on the j hydrogen control rulemaking for ice condenser plants, Applicants submit that an equally valid basis for rejecting these 4 contentions is Intervenors' failure to provide a credible l' accident scenario supporting its proposed contentions.11/ i I I ( footnote continued from previous page) McGuire Nuclear Station, Units-1 and 2), ALAB-669, 15 NRC 453,~459-72 (1982). 11/ It is clear that in deciding whether to stay the immediate effectiveness of a Licensing Board decision, the Commission may relyJon. reasons not articulated below. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-93 (1951); Davis, 2 Administrative Law Treatise-{10.04 (1958)(an " agency is clearly free to substitute its judgment'for'that of the-l examiner on any or all questions"). l l 4 y n e,. s .ow-. . ~.. ~ ,,e..,. ~

a

22 '

Applicants. submit that each' of Intervenors' ' three hydrogen generation scenarios 18/;is on its face technically incorrect, internally. inconsistent, and constitutes a challenge to NRC regulations (including the single failure criterion set forth.in.

10 C.F.R. Part 50,. Appendix A).without a showing of special circumstances. See 10 C.F.R. $2.758. Further, Applicants maintain that in each scenario the pivotal, substantive initiating condition giving rise to-the scenario was previously addressed in this' proceeding.11/ 18/ The stud' bolt failure scenario does not-include allegations of containment breach due to hydrogen generation, and clearly is precluded from litigation due to basic precepts of collateral estoppel, res judicata and waiver. 11/ With respect to the loss of off-site power scenario several comments are appropriate: 1. The redundancy requirement of General Design Criterion 17 requires that on-site power capabilities be adequate to assure plant safety even in the event of loss of one diesel train (one half of the diesel capacity) at Catawba, as Intervenors postulated. In that Intervenors do not contest' Applicants' compliance with such regulation (see FSAR Sections 8.3.1.2.1~and 8.3.1.2.2), Intervenors' scenario which postulates that operation of one half of the' diesels is inadequate is either factually incorrect or challenging such regulation. 2. Intervenors' loss of off-site power scenario also constitutes a challenge to the new hydrogen control regulation, previously noted. See SECY-83-357A, Enclosure F at 16. 3. Intervenors have attempted unsuccessfully to advance contentions in-this proceeding related to loss of power. The Licensing Board twice rejected such zus being fatally vague. See 16 NRC 1791, 1793, 1795' (1982); 17 NRC 282, 283-84 (1983). In any event, Intervenors were permitted to litigate a diesel generator contention, which is a linchpin issue with regard to station blackout. Their default on this ( footnote continued) a ~,

= m-f' ; -Qf ~ - 231-- ] Finally, ifofocus'is;placed onLt$he(operability (of'the ' igniter; system,yIntervenors:; consistently--failed to-provide any specificityL as. to why,it, will not perform itsiintended function. [ L ccordi$ gly,lthedspecificityLand basis requirements'of-10 C.F.R. A 4 152'.714 have-notieen' satisfied.-. Importantly in this regard, the-2 ~ (footnote continued from previous page)' issue,-(see discussion in Section I.B.1.,c' supra)- --precludes further litigation of the matter. -With regard.to:ATWS several= comments,areLmade:

1.. Applicants c first-. maintain that without the requisite-showing lof special circumstances, Intervenors' second scenario constitutes an impermissible" challenge to the ~

Commission's new. regulations regarding ATWS. 49 Fed. Reg. 26036. 2. ,The scenario is technically flawed.on itsiface in, among other things, (1) failing to consider the effects of~the recirculation fans 'hich are designed to-w recirculate the upper containment atmosphere-to the lower containment thereby precluding excessive concentrations of hydrogen in the dome and providing an. ~ opportunity for controlled burning of the hydrogen by the ice condenser igniters (FSAR~Section 9.4.10),.(2) ~ assuming that rupture of one coldileg pipe will render. entirely inoperative the ECCS of anfour loop PWR (Section G.3.3 of the Catawba FSAR sets forth descriptions and analyses of the. operation of the ECCS which indicate that this assumption is erroneous ), and' (3) assuming that a turbine blade wi11'become afmissile penetrating the turbine casing (Section 3'.5i of the Catawba FSAR sets forth a detailed analysis;of why this will not occur). Applicants submit that these technica1' flaws not only call into question the credibility of the scenario,-but:also constitute a . challenge to the single failure criterion set i forth in 10 C.F.R. Part 50, Appendix A~. 3.- Further, Applicants maintain.thatuthe initiating premise set forth in the scenario (i.e.,.that the nil ductility temperature of the reactor. vessel has-increased:to'above 200 F)-~has been raised by Intervenors and litigated in this proceeding. See Palmetto Alliance Contention 44 (CESG'18). With regard to this issue, Applicants maintain that the Board's' (footnote continued);

.,. ~ - _ _ [ ~ ) X .v' _.24-- 1; 'Intervenors themselves:do not: challenge the: adequacy?ofLthe igniters pe_ris_e,;;rather'their focus-has-been upon accident r b ' scenarios (EPsTr. 2454-57;1see'also Tr. 130, 291-294) which1are L . embraced by the new hydrogen rule..See discussion: supra. ~ (footnote continue'dJfrom previous.page) finding. that.there -is reasonable assurance. thgt.the: nil 4 ductility ^ temperature will.not' rise above'200 F is dispositive of this scenario.. 19 NRC'at11575.' 4. Intervenors acknowledgeEthat this issue willinot arise until.10-15 years after reactor start-up. Accordingly, .the propriety.of the. Licensing: Board's ruling.can be-i left to normal ~appellateLresolution; stay relief is j ' unnecessary. { With regard to fatigue failure, Applicants note the 1 following: ~ } r j 1. Applicants maintain that the underlying. assumption ~ reflects an improper-challenge to Commission ~ i regulations, viz.c Appendices G'and H to 10 C.F.R. Part i 50 which-detail. requirements regarding the surveillance and modification of vessel operating parameters,such 3 as NDT, in? response to the operating history:of'the plant. Applicants' compliance with such regulations is l ' set forth in Applicants' FSAR at Sections 5.3.1.5, 5.3.1.6 and 5.3.2.1. The thrust of Intervenors' ~ j arguments is not that. Applicants.do notl meet such j regulations. Rather, Intervenors apparently are of the [ view that such regulations are inadequate to. provide reasonable assurance that thermal cycling'throughout a plant's life will be adequately' considered in periodically determining appropriate operating conditions, including'NDT for the reactor vessel. See CESG's Response to NRC. Staff's Second Set of i Interrogatories and Document Production Requests, March I 17, 1983, at 9-10. In thatDIntervenors have made no j showing of special circumstances for challenging-such j regulations, Intervenors' scenario must fail. 10 C.F.R. $2.758. t l 2. This. precise issue was litigated in this case. See 19 NRC at 1574-77. The premise for the accident, viz.,.a NDT in excess of 200 F was specifically rejecte3 Ey the Licensing Board on the ' basis of: record evidence. 19 l NRC at 1575. (footnote continued) 7 .-..a.,_._.__-,_,

g.,,, c , y ' ^ j- - k 1 .[ - 25. ~ ~ <c

Thus itEislapparentithat-the Licensing Board.:is'not likely t

g- - g; = to, havel reached t0ut wrong result; the hydrogen content' ions:which IIntervenors' sought'to. litigate do not raiseiissues of2 sufficent < ~

gravity to merit aistay.2p/f 03.

Control-Rbom' Design-In originally. dismissing Intervenors'icontention, the -Licensing. Board directed that. Applicants serve copies of the ^ control room design review-on the Intervenors sorthat 'if they s ~ ~ 9 desired,'they could timely file new contentions' based on that i 1795-96. Consistentiwith.that Jinformation. 16LNRC~at'1795 n.2, j Applicants submitted to direction,-on February 28,11983, Intervenors-Duke's Control Room Design Review Plan. See letter from Hal B. Tucker to Harold R. Denton (Feb. 28,11983)(cc: Robert i Guild, CESG, and Palmetto, inter ali,a).- In a March 31, 1983 telephone conference, counsel for Applicants advised that. additional documentation concerning control _ room design (and q emergency planning) would soon be filed, along with a cover E letter alerting the Board and parties that in Duke's-view any I f (footnote continued from previous _page) 3. In that by Intervenors' own-admission this scenario would not occur until a' number of-years-after reactor start-up, in any event, litigation of'this' scenario ~ would not be prejudiced.by reactor operation.- I' 1Accordingly, this scenario does not support a stay. 1 23/ _ Regardless of the Commission's view of the Licensing Board's j ruling,: the matter is not deserving.of a ntay,_in that the Commission. specifically found that+ the distributive ignition, [ . system installed at McGuire, which is essentially identical to1 Catawba (SER Supp. 2 at G.2.5) is adequate-SECY 83 - j Enclosure F at p. 16, Enclosure'G at p. 9. Clearly

357A, the public health and safety:would not be jeopardized'if the-4 issue were reso.1ved'in the normal. appellate' process.-

t 1 f-i y h- %-~,-.,-,-,.v----,_,-., .-,,,w ,~, ,,,,..e,- y, .,.c.,,, .-m..

~ 4:,. y q X ,f -L26D-4 - additional"fcontentions'on contro1Lroom design 1(and emergency' planning) should-be4 filed within thirty-days ofjreceipt. See April 1] 1983' Memorandum and Order at-p._3.. The Licensing Board ~ t directed -that1any party thatibelieved another conference' call was: necessary to discuss a-filing deadline for:new. contentions should z

telephone the' Licensing' Board promptly.-Id.

The Intervenors took l-no action.- On April 18, 1983, theLApp11 cants filed a. motion with the Licensing Board asking it'to direct;the Intervenors to file'new. i contentions, if'any,.concerning the control room-design review. c Intervenor did not file a response to Applicants' motion. i On June 1,-1983, copies of the supplement'to'the control E i F room design review ^we're' transmitted to the~NRC, Palmetto, Land ~ i CESG, among others.'See letter from.Hal B.' Tucker to Harold R. Denton (June 1, .983)(cc: Robert Guild, CESG,:and Palmetto, inter alia). On June 8, 1983, counsel-for Duke informed the -Board and al.1 of the parties of this fact in a. letter. See letter from-l Albert V. Carr, Jr. to James L. Kelley, et al. (June 8, 1983). The Intervenors never filed any new contentions on the control 4 room design matter (though they filed emergency; planning contentions on material received at approximately the same time). l Indeed, the Intervenors did not take any: action on the ~ ~ ~ control room design matter until January.31, 1984, shortly before I' the close of the last~ day of hearings on the safety phase of the proceeding. See Tr. 12,404-07. At the invitation of the Board-4 l (Tr.,12,406-07), the Applicants'sent to the Board'and parties a J

--letter recounting the history of Palmetto's control, room design-contention, attaching copies of relevant correspondence already served on all parties. See letter from J. Michael McGarry, III to James L'. Kelley, et al. (Feb. 2, 1984)..In a telephone ~ conference call, counsel for Palmetto stated to the' Board that he would_ hate'to see the control room design issue " simply go'by the board as a result of, you know,-what I will characterize as, you -know,-as my. neglect."drr. 12,564.- The Licensing Board, however, properly rejected the now untimely control-room design centention once more because of the Intervenors' failure to demonstrate an ability to make a substantial contribution to the resolution of those issues. 19 NRC at 1425, n.3. In any event, the control room design review has_been resolved to the satisfaction of the NRC Staff. SER Supplement 2, Section 18, June 1984. Thus no unresolved safety issue is outstanding; the gravity of this issue in no way merits the Commission delaying operation above five percent power. Financial Qualifications 4. The issue of whether an applicant will be able to generate sufficient funding to operate a nuclear power plant in accordance with regulatory standards does not, by its very nature, involve a-substantive issue of sufficient gravity to merit a stay. As demonstrated.below, there is hardly any likelihood that the Licensing Board erroneously struck this contention. k

.i.

• Intervenors originally cubm!tted a financial qualifications contentionfin 1981.

The. Licensing Board, however, ruled at that time that the contention was barred by a Commission regulation which eliminated financial qualifications review for electric utility applicants. 16 NRC 167, 168 (1982).- On April 12, 1984, ~ the'Intervenors filed a motion which sought to admit two late- ~ filed contentions questioning the financial qualifications of the small municipal and cooperative owners. The basis for the motion was the recent decision in New England Coalition on Nuclear , Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984). However, in a Statement of Policy issued on June 7, 1984, the Commission correctly found that the Court had not vacated the rule, and that therefore financial qualifications reviews need.not be reinstated for electric utility applicants for operating licenses. 49 Fed. Reg. 24111 (1984).21/ On the basis of the Commission's Statement of Policy, the Licensing Board properly dismissed the Intervenors' proposed contentions on financial qualifications. 19 NRC at 1425, n.3. The Commission's Statement of Policy has been buttressed by its new final rule. Certainly, the Commission's new final rule, read in light of the Court's decision in New England Coalition on Nuclear Pollution v. NRC, supra, which remanded the Commission's March 1982 rule eliminating financial qualification review of electric utilities, is valid. Therein the Court simply held that the Commission's rationale in its March 1982 rule was internally Sl/ See also 10 C.F.R. $ 50.40(b).

inconsistent because it justified-el'imi,nating financial-qualifications review for all classes of applicants,-not just electric utilities. Significantly, the Court did not vacate the previous rule end it was for this reason that the ' Commission -issued'the June 1984' Statement of Policy indicating that' financial qualifications reviews would-not be reinstated for L electric utility applicants for operating licenses. The l Licensing Board cannot be faulted'for dismissing'a contention which is~ expressly excluded from licensing proceedings by Commission regulation and for which Intervenors did not make the i j showing required by 10 C.F.R.-$2.758. Thus there is no basis for granting a stay on this issue. 5. the severe accident contentions were properly rejected by the Licensing Board Intervenors flied numerous contentions on this topic (Palmetto 2, 5, 10, 31 (CESG 2), 36 (CESG 9), 37 (CESG 10), DES-1 and DES-22).. Palmetto 2 and 3 (CESG 2) involve hydrogen generation and are discussed in Section I.B.2., supra. Palmetto l 5 expressed a generalized concern about severe accidents at Catawba, asserting that "no reasonable assurance can be had that l the facility can be operated without endangering the health and f safety of the public through occurrence of a serious accident l beyond design basis," questioning the use of the Reactor Safety l Study and contending that severe accidents are " plainly credible" a f ter TMI. The Board rejected this contention for lack of l specificity, but added that it might accept another contention on 1 ,m- ,c-y

30 - -this issue if Palmetto wers to' postulate:"a specific serious and credible accident' scenario at Catawba."' 15 NRC at 583. This' invitation of the Board led to Intervenors' filing of'the four accident scenarios discussed in Section I.B.2., supra. ' Palmetto 10 alleged'that the " economic costs of a' severe accident with release of radiation to the environment (a so-called Class 9 ' accident) were not considered' in the CP- - [ construction permit] review for Catawba.~" Palmetto'36'(CESG'9) took the position that the EIS should consider "the entire spectrum'of. serious release accidents, including PWI-l to PWR-9" and that consideration should recognize "that local officials and resources are not qualified to assure protection of-the public wealth and safety in the event of a serious accident." As it did with Contention 2, the Licensing Board properly rejected these contentions for lack of specificity.16 NRC at 1793-94. Palmetto 37 (CESG 10) took the position that an " adequate crisis relocation plan" should be a condition of an operating license, as " particulate relettses in serious accidents, such as PWR 1" required relocation of the "affected population."22/ The Licensing Board rejected this contention as an impermissible attack on the NRC's regulations. 15 NRC at 567. DES-1 and DES-22 challenged the reliance upon the Reactor Safety Study (WASH-1400) and the DES analysis of accidents more severe than design basis. These contentions were properly 22/ When questioned by the Board as to what he would. consider an " adequate" plan, CESG'sl representative responded that the plan should provide for_ relocation for "Oh, six centuries." Tr. 341. J v ~

m.,. _ 2 h- - E s .._ 31 1 4 rejected by.the Licensing Board;on several1 grounds? including?l'ck' a of specificity-and.the ongoing;rulemaking. 116 NRC?at 1796-- 1798.23/.. Applicants-as' sert that'allcof.these: contentions ~ involving ~ severe ~ accidents were correctly' rejected.-JIntervenors for.chall'nging the~ validity of~ have.provided no credible grounds e 'the' Licensing l Board's decisions ^ rejecting the various ' severe accident contentions. Thus no" issue of sufficient gravity to ' merit a stky is presented.21/ Similarly, there:is.little_ ~ ~ likelihood'that the Licensing Board erred in rejecting these contentions. 6. .The' Cost Benefit Contentions (Need for Power) ~ The Licensing Board did not err in rejecting the three cost / benefit, contentions challenging the'need.for the power to be generated by Catawba. Such matters clearly are not of sufficient gravity to merit a stay. As detailed below, there is little. likelihood that the Licensing' Board reached the wrong result. The Licensing Board properly rejected contentions DES-6 and 8 as challenging the need for the Catawba facility's power at the operating license stage, after the plant is approaching. i completion, in violation of 10 C.F.R. $51.53(c). 16 NRC at 1801. 23/ The one aspect of DES-22 admitted by the Licensing Board was subsequently dismissed. See Memorandum and Order, March 24, ~ 1983.. 21/ The Staff, in Section'5.9 of the Catawba Final Environmental Statement (HUREG-0921), dated January'1983, has considered-the effects of a range of accidents, including those beyond design basis, and has concluded that no special or unique . circumstances prevail at Catawba with respect to.such' accidents.- Thus there is no basis to grant a-stay. 1 -. - ~.,,. -,. .c.

,a -. The Commission explained in issuing the current need-for-power l rule that even ' assuming that the facility's power is to be used ~ to' replace existing power, need for power and alternative energy issues.need not be considered at the operating license stage because such reconsideration would.not at that time likely tilt the cost-benefit balance against issuing the license. 47 Fed. Reg. 12940 (March 26, 1982)..Accordingly, the Commission removed from operating' license. proceedings such as Catawba's the issue of whether substituting a new nuclear plant's power for existing, less economical means of power production results in additional costs or reduced benefits. Because that is precisely the issue P raised by Contentions DES-6 and 8 (see, e.g., Tr. 501-04), these contentions were properly denied admission. In any event, it should be noted that Intervenors were explicitly directed to the- ~ provisions of 10 C.F.R. $2.758 concerning this contention (see 15 NRC at 586) and chose not to avail themselves of this avenue. A third contention (DES-7) sought to inject fixed capital costs (including construction costs) into the NEPA cost / benefit analysis. It is well-settled.in NRC practice, however, that the costs of construction are not considered in the cost / benefit i analysis at the operating license stage because it simply comes too late. See, e.g., 15 NRC at 584; 16 NRC at 1801. In sum, the Licensing Board's 1982 rejection of Contentions DES-6, 7 and 8 was correct. The Intervenors have-clearly not raised a grave substantive issue, but have instead sought to improperly adjust.the cost / benefit balance in violation of both ..-~-er a

4 9 ~33'-- L' W h -logicJand the Commiss' ion's' regulations. ' Additionally, the ~ Licensing Board's rulings were. appropriate and in conformity with-festablished NRC practice. Thus these contentions provide no ~ reason for the Commission to delay operation above five percent 4. power. /7. : Transshipment of Spent Fuel - Two ~ environmental conter31ons dealing with. transshipmeni ofL

'9.

. w 1 -spent l fuel from. Duke's Oconee or McGuire. Nuclear Stations -to ' lCatawoa'(DES-10 and 19) were rejected.21/ There41s virtually no likelihood-that the Licensing Board erred in issuing these: rulings. The Licensing. Board ; carefully' considered the rather complex arguments which the parties raised with. respect to these iI contentions and issued thorough and well-reasoned opinions-4 l supporting'its decisons. See 17 NRC 291 (1983); 18-NRC 421' (1983). Ad'ditionally, no spent. fuel transshipment is. imminent, so no issue of sufficient gravity or requiring 1 prompt. resolution is presented. Much of the discussion of DES-10 and 19 focused on wh' ether the environmental effects or' costs of shipping Oconee and McGuire spent' fuel to Catawba would come within the boundaries of Table S-4 of lO-C.F.R..$51.20. The Applicants stipulated that any such shipments from other Duke: Power Company. facilities to Catawba 'would be scheduled'so~that their environmental impacts would~not 21/: Intervenors' filed several~ transshipment contentions in their initial safety phase ~ pleading..'These contentions were discussed by the Licensing Board-(15.NRC at 578-581, 16 NRC at-171-172,:16 NRCEat 1802) and, in essence, were subsumed } in the environmental contentions. y .n-+ .r n .n~.- r

F exceed the values contained in Table S-4. Accordingly, the NRC Staff concluded in the FES that nc new environmental impacts would be introduced by the transportation of spent fuel from Oconee and McGuire. Moreover, since the environmental effect of transporting spent fuel away from the Oconee and McGuire facilities to a fuel reprocessing plant (including intermediate shipment to a facility such as Catawba) had already been considered and factored into the licensing of those plants, it was.not necessary to count these environmental costs another time. The NRC Staff thus concluded that it was not necessary to factor any environmental costs for transport of non-Catawba spent fuel into the cost / benefit balancing for Catawba. Because the potential transportation of spent fuel raised by these contentions was viewed as coming within the scope of Table S-4 to 10 C.F.R. $51.20, they were rejected as impermissible attacks on NRC regulations. See 17 NRC at 294. They were also rejected on the alternative basis that they lacked adequate specificity and thus failed to satisfy 10 C.F.R. $2.714(b). See 17 NRC at 295. The Board further ruled that if Intervenors believed Table S-4 should not apply and if they could identify with reasonable specificity those environmental-impacts not adequately accounted for by Table S-4, they should file a petition pursuant to 10 C.F.R. $2.758 delineating those special circumstances which could justify a waiver of the rule. 17 NRC at 294. The Intervenors never did so.

Intervenors have failed to demonstrate any impropriety in the Licensing Board's decisions dismissing DES Contentions 10 and 19. It is clear that there is little likelihood that the - improper result was reached by the Licensing Board. The-gravity - of this issue is minimal in that no immediate commission action is warranted pending the full appeal. No spent fuel has been shipped to Catawba. Moreover, Duke does not plan to ship any 4 spent fuel from the oconee or McGuire Nuclear Stations to Catawba during the duration of a reasonable appellate process.

Finally, even in the event that such transshipment of spent fuel becomes necessary in the future, the Licensing Board has found that the impact of such transshipment is within.the limits allowed by Commission regulations.

See-17 NRC at 294. Thus the Commission should not stay operation above five percent because of the. i rejection of the Intervenors' transshipment contentions. 8. Conclusion It is apparent that none of the Licensing Board rulings challenged by the Intervenors before the Licensing and' Appeal Boards are of sufficient gravity to justify the Commission's staying operation of Catawba above five percent power.21/ Additionally, the discussion above indicates that these issues have been resolved correctly by the Licensing Board. 21/ ne pleadings before the Appeal Board, Intervenors submitted the affidavit of Dr. Michio Kaku. The Appeal Board found that the Kaku affidavit "does not aid intervenorscause." NRC ALAB-794 at p. 7. e a

36 - Accordingly,_neither of the first two factors under 10 C.F.R. {2.764(f)(2)(1) supports the Commission's staying full power operation of Catawba. II. Correct resolution of any Licensing Board errors would not be prejudiced by operation of Catawba penoing review The third factor to be considered by the Commission under $2.764(f)(2)(i), "the degree to which correct resolution of the issue [s] would be prejudiced by operation pending review," does not support staying operation of Catawba. If the Licensing Board should be found to have erred on any of the eleven previously discussed issues, these errors could be corrected without any prejudice to the Intervenors or the resolution of the issue. Intervenors have suggested that sensitized welds exist in the plant and that these welds are defective and must be repaired. This position is fundamentally in error, as discussed supra in Section I.A.4. In any event, if any repairs to-any dspect of the_ plant are necessary, they will be made. A7 the Commission well knows, the NRC has not been deterred from ordering modifications to plants that have been operating at full power for many years, notwithstanding the presence of large quantities of fission products in the reactor. core. See, e.g., Connecticut Light & Power Co. v. NjC, 673 F.2d 525 (D.C. Cir. 1982), cert. denied, 459 U.S. 83'i (1932). Even in the unlikely -event that the Intervenors might prevail on appeal as to any of the issues they have raised, there is no work which would be precluded because the plant has been operating. Any repairs. i

~ would be made in compliance with the Commission's occupational exposure linits set in 10 C.F.R. Part 20. Or, more drastically, if Intervenors are ultimately successful in preventing continued cease. The NRC has previously operation, operation will ~ as, for withdrawn operating authority once initially granted, . example, in the. case of Diablo Canyon Unit'1, which had its low power license issued in September of 1981, but suspended by the NRC two months later. See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 1), CLI-81-30, 14 NRC 950 (1981); see also 10 C.F.R.-{2.202.22/ With respect to the individual issues raised by Intervenors, Applicants submit the following comments: As to those issues which were litigated, the record is so exhaustive on the matters as to give any decisionmaker a reasonable feeling that public health and safety will not be compromised during operation. As was shown in Section I.B.1., supra, the Licensing Board did not err in rejecting the Intervenors' late-filed diesel generator contentions after several iefaults. In any ravent, the substantive issae of the diesel generators'. operability has been properly _ resolved outside the hearing process to the satisfaction of the NRC Staff. SER Supplement 4 at 8-1. Thus, should any 21/ The Catawba Appeal Board cpecifically addressed this point in' stating: Should those appeals be successful, we will have full authority to order a halt to operation or such other relief as might be appropriate in the totality'of-circumstances. [ NRC , ALAB-794 at p. 9]

7. legal error _be found on appeal, any corrective action,'such as a remand-for further hearings, will not be prejudiced if Catawba is allowed to operate in the interim. As was shown in Section I.B.2, supra, Intervenors' argument that Catawba should not operate because the Licensing Board rejected its hydrogen contentions is without merit. These contentions were properly rejected. Operation of Catawba with its h'ydrogen igniter system pending appeal will not prejudice the Intervenors' appeal nor will it prejudice any alteration of the. igniter system.should the Commission eventually call for a modification. The hydrogen igniter system such as that in use at Catawba has been previously approved by the Commission for at least interim use at other facilities. See, e.g., 46 Fed. Reg. 62281_(1981) (Sequoyah 1); Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), CLI-81-15, 14 NRC 1, 2, 10 (1981). The NRC Staff has likewise approved Catawba's-distributive ignition system. SER Supplement 2, Section_6.2.5, June 1984; SER Supplement 3, Section 6.2.5, July 1984. Accordingly, interim use of the igniter system at Catawba pending appeal will'in no way prejudice the correction on appeal of any error by the Licensing Board. As discussed in Section I.B.3, there is nothing about-the Intervenors' -rejected control room design review contention which could be prejudiced by operation during appellateureview. As noted, the NRC staff has approved Applicants' design. SER Supplement 2, Section 18, June 1984. 1 .^ +

-4 e..- With. regard to-financial qualifications and-need for power- . contentions, neither will be prejudiced if Catawba is allowed to operate'pending Intervenors' full appeal. As described' supra in Sections I.B.4 and 6, the. Licensing Board was correct in rejecting these contentions. In any event, these contentions..by their very. nature do not raise matters which will.be mooted or otherwise beyond appellate scrutiny and correction (should that -be'necessary) after the plant begins operation. The Intervenors' argument.that alleged NEPA violations (i.e., those alleged in certain rejected environmental contentions) can be, in and of themselves, the basis for. staying operation of the plant prior to appellate review is invalid. First, as discussad previously, the Licensing Board's dismissal of the subject contentions was proper. See Sections I.B.5, 6, and 7, supra. Second, even if the Appeal Board or the Court of Appeals were to find that the Licensing Board had not complied with NEPA in some respect, the courts have consistent 1y' held that a violation of NEPA does not automatically lead to irreparble injury so as to justify, without more, a stay of the activities in question. In Potomac Alliance v. NRC, 682 F.2d 1030 (D.C. Cir. 1982), the D.C. Circult declined to stay or vacate' reactor operating license amendments notwithstanding -the Court's finding that the NRC had failed to comply with NEPA.with respect to'the -amendments. See also Natural Resources Defense Council, Inc. v. NRC, 606 F.2d 1261, 1272-73 (D.C. Cir. 1979)(on-going construction of nuclear waste storage facilities not enjoined

- f.\\ i.. ' despite.NEPA violation).- -Even.the case principally' relied upon below by the Intervenors in their argument on purported irreparable harm due to alleged NEPA violations, Massachusetts v. Watt, 716 F.2d 946-(1st Cir. 1983), recognizes this point in stating "[t]his is not to say that a likely NEPA-violation automatically calls for an' injunction; the balance of harms may point the other'way." Id. at 952. In sum,Enone of.the issues advanced by the Intervenors would be prejudiced by plant operation before the appellate process is. complete. III. The public interest favors operation of~ Catawba pending appellate review The public interest favors,the timely comp 1'etion of licensing proceedings in a manner consistent with due process. Statement of Policy on Conduct of Licensing Proceedings, CLI 8, 13 NRC 452 (1981). As discussed supra, the record compiled in this lengthy proceeding is quite extensive. The bulk of the hearing time was devoted to cross-examination by the Intervenors, which should in and of itself serve as prima facie evidence that Intervenors have been accorded due process. The only argument advanced by the Intervenors before:the Appeal Board in this regard concerns-limitations on discovery and trial preparation. These limitations'were properly imposed, as discussed in Section I.A.3., supra. Under the circumstances, the public interest will be served by minimizing any futher delay in an administrative process which has already run for three and a' half years. Cf. ICC

v. City of Jersey City, 322 U.S. 503 (1944).

In that the record

d evidence _ from these lengthy _ hearings amply supports the Licensing Board's finding of reasonable assurance that Catawba will operate s'afely, the public interest is served by the timely operation of the~ plant. Utilities such as the Applicants are required by statutes enacted in the-public interest by the states of North and South Carolina to provide reliable electric power ta the' members of the public. A delay in the start-up schedule for Catawba would delay commercial operation and interfere with providing'this statutorily mandated service to the public. For the above reasons the public interest favors allowing Catawba Unit I to begin operation as scheduled. ) .I .-+

( . s IV. Conclusion Consideration of the four criteria' listed in 10'C.F.R. $2.764(f)(2)(1) demonstrates that the Commission should' allow operation of the Catawba Nuclear Station above five percent ~ power. Respectfully submitted, f / Michael McGarr, III Anne W. Cottingh m Mark S. Calvert BISHOP, LIBERMAN, COOK, PURCELL AND REYNOLDS 1200 Seventeenth Street, N.W. Washington, D.C. 20036 Albert V. Carr, Jr. DUKE POWER COMPANY P.O. Box 33189 Charlotte, N.C. 28242 Attorneys for Duke Power Company, et al. cc: All parties}}