ML20112C881
| ML20112C881 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/09/1985 |
| From: | Guild R, Jeffrey Riley CAROLINA ENVIRONMENTAL STUDY GROUP, PALMETTO ALLIANCE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#185-033, CON-#185-33 OL, NUDOCS 8501110466 | |
| Download: ML20112C881 (79) | |
Text
033
/h' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
' lI/
ffg,.
7 -
In the Matter of f
DUKE POWER COMPANY, et al.
)
)
C) (__
(Catawba Nuclear Station,
)
Docket Nos. 50-413, 50-414 Units 1 and 2)
)
January 9, 1985 l
l BRIEF OF APPELLANTS PALMETTO ALLIANCE AND l
CAROLINA ENVIRONMENTAL STUDY GROUP
(
Robert Guild I
2135 1/2 Devine Street Columbia, SC 29205 (803) 254-8132 ATTORNEY FOR PALMETTO ALLIANCE Jesse L.
Riley 854 Henley Place Charlotte, NC 28207 (704) 375-4342 CAROLINA ENVIORNMENTAL STUDY GROUP 8501110466 850109 PDR ADOCK 05000413 C'CJ3 G
PDR 2
TABLE OF CONTENTS PAGE REQUEST FOR ORAL ARGUMENT i
QUESTIONS PRESENTED 2
STATEMENT OF THE CASE 4
I.
SERIOUS VIOLATIONS OF THE COMMISSION'S QUALITY ASSURANCE REGULATIONS AND THE EXISTENCE OF KNOWN YET UNCORRECTED WORKMANSHIP DEFICIENCIES PRECLUDE THE MANDATORY SAFETY FINDING REQUIRED FOR AN OPERATING LICENSE.
5 II.
THE LICENSING BOARD ERRED IN DEPRIVING PALMETTO ALLIANCE AND CAROLINA ENVIRONMENTAL STUDY GROUP OF A FAIR OPPORTUNITY TO BE HEARD ON THEIR QUALITY ASSURANCE CLAIMS THROUGH ITS DENIAL OF ACCESS TO NECESSARY EVIDENCE AND DISCOVERY AND 'TS IMPROPER LIMITATION ON THE NUMBER OF WITNESSES AND TIME ALLOTTED FOR EXAMINATION OF WITNESSES AT HEARING 35 III. THE LICENSING BOARD ERRED IN CONCLUDING THAT ADEQUATE PROTECTIVE MEASURES CAN AND WILL BE TAKEN IN THE EVENT OF A RADIOLOGICAL EMERGENCY AT THE CATAWBA NUCLEAR STATION WHERE THE PROMPT PUBLIC ALERT AND NOTIFICATION SYSTEM HAS NOT RECEIVED THE REQUIRED EVALUATION AND NECESSARY CORRECTIVE ACTIONS FOR APPROVAL BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY AND THE NRC.
46 IV.
THE LICENSING BOARD ERRED IN WHOLLY DEPRIVING PALMETTO ALLIANCE AND CAROLINA ENVIRONMENTAL STUDY GROUP OF AN OPPORTUNITY FOR A HEARING ON IMPORTANT SAFETY AND ENVIRONMENTAL CLAIMS THROUGH IMPERMISSIBLE INTERPRETATION OF THE COMMISSION RULES OF PRACTICE REGARDING THE FILING OF CONTENTIONS FOR LITIGATION.
INTERVENORS' SAFETY CLAIMS INCLUDED THE SAFETY OF THE CATAWBA EMERGENCY DIESEL GENERATORS, HYDROGEN CONTROL MEASURES TO PREVENT SEVERE ACCIDENTAL CONTAINMENT FAILURES, CORRECTION OF KNOWN HUMAN ENGINEERING DEFICIENCIES IN THE
r CONTROL ROOM AND THE FINANCIAL QUALIFICATIONS OF SMALL MUNICIPAL CO-OWNERS.
INTERVENORS' ENVIRONMENTAL CLAIMS INCLUDED THE IMPACTS OF SEVERE ACCIDENTS INVOLVING FAILURE OF HYDROGEN CONTROL MEASURES, THE COSTS AND BENEFITS OF THE FACILITY'S OPERATION AND THE IMPACT OF TRANSHIPMENT OF SPENT FUEL FROM DUKE'S OCONEE AND MCGUIRE PLANT TO CATAWBA 52 CONCLUSION.
71
REQUEST FOR ORAL ARGUMENT Pursant to 10 CFR 2.763 Palmetto Alliance and Carolina Environmental Study Group hereby request an opportunity to be heard on oral argument in support of these appeals.
TABLE OF AUTHORITIES Page CASES BPI v.
AEC, 502 F.2d 424 (D.C. Cir. 1984).
53 Calvert Cliffs Coordinating Committee v.
- AEC, 449 F.2d 1109 (D.C. Cir. 1971).
55, 67, 71 Consolidated Edison Company of New York, Inc.
v.
Donovan, 673 F.2d 61 (2nd Cir. 1982).
20 Mackowiak v.
University Nuclear ystems, Inc.,
735 F.2d 1159 (9th Cir. 1984).
.11, 20 MCI Communications Corporation v.
American Telephone & Telegraph Company, 85 FRD 28 (ND Ill.
1979), aff'd 708 F.2d 1081 (7th Cir. 1983).
45 New England Coalition on Nuclear Pollution v.
- NRC, 727 F.2d 1127 (D.C. Cir. 1984).
65 Padovani v.
Bruchhausen, 293 F.2d 546 (2nd Cir. 1961)36, 45 Power Reactor Development Co.
v.
International Union of Electrical, Radio and Machine Workers AFL-CIO, 367 U.S. 396 (1961) 7, 34 Union of Concerned Scientists v.
U.S.
N.R.C.,
735 F.2d 1437 (D.C. Cir. 1984).
48, 51 AGENCY DECISIONS Cincinatti Cas and Electric Company (William H.
Zimmer Nuclear Power Station, Unit 1) Order to Show Cause and Order Immediately Suspending Construction, CLI-82-33, 16 NRC 1489 (1982).
14, 21 Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2) LBP-84-3, 19 NRC 282 (1984).
20 Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2) ALAB-770, 19 NRC 1163 (1984).
8 Detroit Edison Company, et al. (Enrico Fermi Atomic Power Plant, Unit 2) ALAB-730, 17 NRC 1057 (1983). 47 Duke Power Company (Amendment to Materials License SNM-1773-Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station) ALAB-651, 14 NRC 307 (1981).
70
Page Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2) Docket Nos.
50-413 and 50-414 Memorandum and Order, CLI-83-19 (June 30,1983).
56 Order, CLI-83-31, 18 NRC 1303 (1983).
14 Order (June 8, 1984).
58 ALAB-687 (August 19, 1982).
55 Memorandum and Order (Reflecting Decision Made Following Prehearing Conference)
March 5, 1982.
54, 67 Memorandum and Order (Denying Motion for Reconsideration or Referral and Establishing Schedule), February 2, 1983.
38 Memorandum and Order (Ruling on Palmetto Alliance Motion for Further Discovery)
June 13, 1983.
.39 Memorandum and Order (Referring Certain Diesel Generator Issues to the Appeal Board), February 23,1984.
57 Memorandum and Order (February 27, 1984).
59 Partial Initial Decision, LBP-84-24, 19 NRC 1418 11, 12, 13, 14, 23, 24, 25, 26, 27, 34, 62, 64, 65 Memorandum and Order (July 20, 1984).
.59 Memorandum and Order (September 4, 1984).
60 Supplemental Partial Initial Decision on Emergency Planning, LBP-84-37, 20 NRC 46 (September 18, 1984)
Partial Initial Decision Resolving Foreman Override Concerne and Authorizing Issuance of Operatimg Licenses, (November 27, 1984). 28, 29, 30, 31, 33, 34 Federal Tort Claim of General Public Utilities Corp., et al, CLI-81-10, 13 NRC 773 (1981) 6 Louisiana Power & Light Co. (Waterford_ Steam Electric Station, Unit 3) ALAB-732, 17 NRC 1076 47
~
Page Texas Utilities Generating Co. (Comanche Peak i
l Steam Electric Station, Units 1 and 2) l LBP-83-81, 18 NRC 1410.
15 l
Union Electric Company (Callaway Plant, Unit 1)
ALAB-740, 18 NRC 343 (1983) 5, 6,
7, 8,
9, 10, 20.35 Washington Public Power Supply System (WPPS5 Nuclear Project No. 3), ALAB-747, 18 1;RC 1167 (1983) 59, 60 Wisconsin Electric Power Company (Point Beach.
61 Nuclear Power Plant, Unit 2) CLI 73-4, 6 AEC 6 (1973)
STATUTES Atomic Energy Act.
5, 34, 35, 48, 54, 61, 63, 65 National Environmental Policy Act.
54, 67, 68, 70, 71 REGULATIONS 10 CFR 2.714.
52, 54 10 CFR 2.730 57 10 CFR 2.732 5
10 CFR 50.47 46 10 CFR 50.57 5,
21 10 CFR 51.20 69 10 CFR 50.7 11, 20 10 CFR 51.53 71 10 CFR Part 50 Appendix B passim 40 CFR 15.02 68
QUESTIONS PRESENTED I.
Did the Licensing Board err in concluding that a reasonable assurance had been demonstrated by Duke Power Company that its Catawba Nuclear Station was safely built where prevasive flaws in its quality assurance program including harassment and retaliation against Quality Control inspectors and the existence of uncorrected workmanship defects preclude the required safety findings?
II.
Did the Licensing Board err in depriving Palmetto Alliance and Carolina Environmental Study of a fair opportunity to be heard in the denial of access to important quality assurance evidence through improper limitations on discovery and the exclusion of relevant and material evidence through the improper limitations on number of witnesses and the time permitted for examination of witnesses at hearing?
III.
Did the Licensing Board err in concluding that adequate protective measures can and will be taken in the event of a radiological emergency at the Catawba Nuclear Station, including specifically an effective prompt alert and notification system for the public where the required evaluation and correction of the alert and notification system at Catawba has not yet been performed by either the Nuclear Regulatory Commission or the Federal Emergency Management Agency?
2
v IV.
Did the Licensing Board err in wholely depriving Palmetto Alliance and Carolina Environmental Study Group of an opportunity for hearing on important safety claims including the adequacy of the emergency diesel generators, the effectiveness of hydrogen control measures to prevent severe accidents, the correction of deficiencies in the control room design, and the financial qualifications of small municipal co-owners of the facility; and environmental claims including the impact of severe accidents from deficient hydrogen control measures, the costs and benefits of the facility, and the impacts of transshipment of spent fuel from other nuclear plants to Catawba for storage?
3
STATEMENT OF THE CASE This is an appeal by intervenors Palmetto Alliance and Carolina Environmental Study Group from three separate partial initial decisions which, in sum, authorize operating licenses to applicants Duke Power Company, et al. for the Catawba Nuclear Station, Units 1 and 2.
The first Partial Initial Decision, LBP-84-24, 19 NRC 1418 (June 22, 1984) decided Quality Assurance, reactor vessel embrittlement and adverse site meteorology issues.
A second Licensing Board decided emergency planning issues in its
" Supplemental Partial Initial Decision on Emergency Planning,"
LBP-84-37, 20 NRC (September 18, 1984).
The original Licensing Board decided remaining safety questions in its
" Partial Initial Decision Resolving Foreman Override Concerns and Authorizing Issuance of Operating Licenses," LBP 20 NRC (November 27, 1984).
Timely Notices of Appeal were filed by Palmetto Alliance and Carolina Environmental Study Group pursuant to 10 CFR, Section 2.762 (a), taking appeals from each of these partial initial decisions.
In light of the heavy litigation responsibilities remaining in the proceeding, all parties agreed to a deferral of the briefing of these appeals which was approved by this Appeal Board.
4
I.
SERIOUS VIOLATIONS OF THE COMMISSION'S QUALITY ASSURANCE REGULATIONS AND THE EXISTENCE OF KNOWN YET UNCORRECTED WORKMANSHIP DEFICIENCIES PRECLUDE THE MANDATORY SAFETY FINDING REQUIRED FOR AN OPERATING LICENSE.
If the instructions of the Commission's chartering legislation, the Atomic Energy Act, 42 U.S.C.
Section, 2232 (a) its implementing substantive regulations, 10 CFR Section 50.57 (a) (3) (i), and the teachings of this Appeal Board's decisional authority, In The Matter of Union Electric Company (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343 (1983), are to be read as providing meaningful protections for the public health and safety in the construction of a nuclear power plant, then the evidence of record in the Catawba proceeding before the Licensing Board must preclude the affirmance of decisions authorizing operating licenses for that facility.
Applicants Duke Power Company, et al. have simply failed to carry their burden of proving, 10 CFR Section 2.732, that the Catawba Nuclear Station has been constructed "in conformity with the construction permit and the application as amended, the provisions of the [ Atomic Energy]
Act, and the rules and regulations of the Commission," 10 CFR Section 50.57 (a) (1), and that it will operate "without endangering the health and safety of the public..." 10 CPR Section 50.57 (a) (3).
Beyond the existence of known, yet uncorrected construction defects and numerous violations of the Commission's quality assurance regulations, there is a demonstrated failure by Duke Power Company, et al.,
to implement 5
the most basic requirements of the Commission's 10 CFR Part 50, Appendix B, Quality Assurance requirements "of sufficient dimensions to raise legitimate doubt as to the overall integrity of the facility in its safety-related structures and components."
Such "... pervasive failure to carry out the quality assurance program..." must
... stand in the.way of the requisite safety finding."
Callaway, supra, 18 NRC at 346.
Indeed, beyond the record evidence of " ascertained construction errors," both those untimely identified and those yet corrected and uncorrected, it is the systematic and willful circumventions of quality assurance requirements which pose such dire implications for the overall integrity of the facility and its safe operation.
As observed by the Commission in rejecting responsibility for the TMI-2 accident: "the regulated industry...
bears the primary responsibility for the proper construction and safe operation of licensed nuclear facilities."
The NRC merely prescribes licensing standards and inspects the industry's activities against those standards.
Federal Tort Claim of General Public Utilities Corp. et al.,
CLI 81-10, 13 NRC 773,775-776 (1981).
Largely, the scheme provided by Commission rules is one of self-regulation with NRC staff enforcement through a limited system of " sampling inspection," Tr.,
13, 774, Blake.
Thus, an effective program of Quality Assurance comprising "those planned and systematic actions necessary to provide adequate confidence that a structure, system, or component will perform satisfactorily in service," 10 CFR Part 50, Appendix B,
" Introduction," is an essential prerequisite of 6
l the " definitive findings of safety" required by the Atomic Energy l
Act.
Power Reactor Development Co.
v.
International Union of Electrical, Radio and Machine Workers, AFL-CIO, 367 U.S.
396, 398 (1961).
While an effective system of Quality Assurance is not required to produce perfection or " error-free construction," in the first instance, Callaway, supra, an effective quality assurance program is absolutely required "to assure that conditions adverse to quality, such as failures, malfunctions, deficiencies, deviations, defective material and equipment, and non-conformances are promptly identified and corrected."
10 CFR, Part 50, Appendix B, Criterion XVI, " Corrective Action."
Duke's failure to assure honest and effective performance of this key function is the flaw in WA at Catawba.
The key actor in assuring that safety deficiencies are indeed identified and corrected at Catawba is the Duke-employed Quality Control (OC) inspector.
Quality control consists of those " quality assurance actions related to the physical characteristics of a material, structure, component or system which provides a means to control (its) quality...to predetermined requirements." 10 CFR, Part 50, Appendix B,
" Introduction."
It is the task of the Catawba Quality Control inspector to perform the critical inspection function on safety-related work," to verify conformance with documented instructions, procedures, and drawings for accomplishing the activity," 10 CFR, Part 50, Appendix B, Criterion X,
" Inspection."
Thus, while the absence of human error on a 7
project of such magnitude as a nuclear power plant is not to be expected, it falls to the Quality control inspector to identify and thereby assure correction of deficiencies in safety-related work.
The end product then of an effective quality assurance system is not only the confidence that "all ascertained
(
construction errors have been cured," Callaway, supra, but that there is confidence that all conditions adverse to quality have been, in the first instance, fully ascertained, so that they can then be " cured."
Without an effective quality assurance system for assuring that errors and defects have been properly identified, the quality of safety-related structures and components remains indeterminate precluding the requisite assurance of safety. Callaway, supra.
Increasingly, the Commissica and its Licensing Boards have confronted evidence which casts a cloud of doubt over the confidence that nuclear plant construction quality assurance programs have effectively achieved this critical function of identification and correction of safety deficiencies.
The quality assurance record before the Catawba Licensing Board exhibits evidence rivaling in seriousness that in any reported licensing board decision.
This Appeal Board recently had occasion to review the unprecedented decision by the Byron Licensing Board denying an operating license on the basis of such a cloud of doubt over the effectiveness of the quality assurance program.
In Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-770,, 19 NRC 1163 (1984), this Appeal Board rejected the applicant's complaints that its program 8
passed muster under the Callaway standard since there was no
" widespread breakdown" in quality assurance procedures nor was there any finding of " actual uncorrected construction defects of potential safety significance."
Byron, 19 NRC at 1174.
This Appeal Board rejected such complaints:
The fatal difficulty with this line of argument is that it ignores the fact that one of the principal deficiencies with regard to both Hatfield and Hunter "related to the absence of adequate certification procedures for quality assurance personnel.
Given that absence, a legitimate question arose respecting whether
+he quality assurance inspectors examining safety-related structures, systems and components were, in actuality, competent to perform their assigned function.
And, so long as that doubt lingered, there also remained an uncertainty as to whether construction defects of potential safety significance had gone undetected.
Byron, Supra, 19 NRC at 1175.
(Emphasis supplied).
At Catawba, in place of the questioned competence of quality assurance personnel substitute, instead, as the source of doubt the lack of " required authority and organizational freedom, including sufficient independence from cost and. schedule when opposed to safety considerations," as the impediment to performance of their assigned function. 10 CFR, Part 50, Appendix B,
" Introduction."
The consequence is the same an undeniable
" uncertainty as to whether construction defects of potential safety significance had gone undetected."
Byron, Supra.
Harassment and retaliation against quality control inspectors stemming from a lack of independence from cost and schedule considerations, and pressure on craftsmen to sacrifice quality requirements to meet production schedules, produced the fatal flaw in the Catawba Quality Assurance program.
9
The existence of such flaws at Catawba is acknowledged by the Catawba Licensing Board in its June 22, 1984, Partial Initial Decision; and glaring examples of the consequences of such flaws are confirmed in the recent " Partial Initial Decision Resolving Foreman Override Concerns and Authorizing Issuance of Operating Licenses," of November 27, 1984.
The Licensing Board, however, ignores the teachings of this Board in Callaway and Byron by wholly failing to "look to the implication of those deficiencies in terms of safe plant operation."
Callaway, supra, 18 NRC at 346.
The cloud of doubt overhanging the adequacy of construction at Catawba requires no less remedy than at Byron or any of the other troubled nuclear construction sites to remediate the flaws and establish reasonable assurance of safe operation.
Yet in the absence of action by the Board, on independent review of construction quality at Catawba will ever take place.
The absolute necessity that quality control inspectors be free of pressures in order that they may perform this critical safety function is acknowledged by the Court of Appeals for the Ninth Circuit in enforcing the " whistle blower" protection provisions of the Energy Reorganization Act of 1974, 42 U.S.C.A.,
Section 5851, to protect quality control inspectors from retaliation for voicing internal safety and quality control complaints.
Quality control inspectors play a crucial role in the NRC's regulatory scheme.
The NRC regulations require licensees and their contractors and sub-contractors to give inspectors the " authority and organizational freedom" required to fullfil their role as independent observers of the construction process.
10 CFR, Part 50, App.
B, at 413.
In a real sense, every action by 10
quality control inspectors occurs "in an NRC proceeding," because of their duty to enforce NRC regulations.
At times, the inspector may come into conflict with his employer by identifying problems that might cause added expense and delay.
If the NRC's regulatory scheme is to function effectively, inspectors must be free from the threat of retaliatory discharge for identifying safety and quality problems.
Mackowiak v. University Nuclear Systems, Inc., 735 F.
2d 1159, at 1163 (19th Cir. 1984).
The Commission itself has recognized the importance of this protection for nuclear workers by codifying the employee protection provisions in its own rules, 10 CFR 50.7, and by requiring licensees and applicants to prominently post notices of the rules' provisions for the benefit of nuclear site worker in addition to the remedies included in the statute, the Commission has prescribed stringent regulatory penalties for the rules transgression:
A violation of paragraph (a) of this section by a Commission licensee, permittee, an applicant for a commission license or permit, or a contractor or sub-contractor of a Commission licensee, permittee or applicant may be grounds for -
(1)
Denial, revocation, or suspension of a license.
(2)
Imposition of a civil penalty on the licensee or applicant.
(3) Other enforcement action.
10 CFR Section 50.7 (c).
While the Catawba Licensing Board acknowledged just such retaliation by Duke management against Catawba Quality Control inspector supervisor Gary E.
" Beau" Ross because of his
" crew's strict adherence to OA procedures and expression of safety concerns," June 22, 1984, PID, Slip Op. 159, the Licensing 11
Board wholly failed to grasp the implication of such retaliatory conduct on the effectiveness of the QC inspection function for l
identifying and correcting deficiencies at the plant.
- Further, the Catawba Licensing Board acknowledged numerous cases of
" alleged harassment of welding inspectors to the detriment of the effectiveness of QA program," June 22, PID, Slip Op. 162, yet, similarily, failed to grasp the significance of such programmatic quality assurance flaws for confidence in the safe construction I
and operation of Catawba.
The lack of independence of Catawba quality assurance from construction cost and schedule pressures grows from deep historical roots in the structure of Duke Power Company and its approach to quality assurance.
Duke's Executive Vice President, Warren H.
Owen, the senior Duke official to testify in a licensing proceeding, expressed pride in Duke uniqueness in the industry as the only privately owned utility which integrates the functions of design, construction and operation of its nuclear plants.
Tr. 2027-28, Owen.
Such an " integrated" structure has institutionalized the subordination of quality assurance to cost and schedule considerations.
From the beginning of construction at Catawba, the Atomic Energy Commission staff identified this structural flaw in Duke's QA program, yet, failed to effectively combat the problem with the present result.
In its August 13, 1973 construction permit Safety Evaluation Report for Catawba, Palmetto Alliance Exhibit 1, the AEC staff expressed concerns about Duke's OA organization.
The staff expressed concern about the " lack of 12
clear definition of the independence, responsibilities, authorities, and specific duties of the electrical, mechanical, welding, and civil inspectors." Id.
The staff required
" definition and clarification" of the distinction Duke employed between " administrative" and " functional" reporting of quality assurance personnel to the head of the line construction department on the one hand, and the corporate QA manager on the other. Id.
Finally, the AEC staff questioned the acceptability of Duke's organizational arrangement where the positions of Corporate OA Manager and Senior Vice President for Engineering and Construction were filled by the same individual (Duke's present Chairman, William S. Lee)
Id,.
This Appeal Board in an earlier McGuire proceeding specified the prompt appointment of such an independent QA manager.
ALAB-128, 6 AEC 399, 410 (1973).
Unfortunately, such a structural lack of independence for the OA program continued unabated for many more years.
- See, e.g.
June 22, 1904, PID, Slip Op. 65.
Yet further warnings of the seriousness of quality assurance flaws at Catawba went unheeded by Duke and the NRC staff.
In the commission's first, and only, comparative analysis of nuclear utility construction performance, the Systematic Assessment of Licensee Performance (SALP) report of 1981, NUREG-0034, Palmetto Alliance Exhibit 4, Catawba was rated in the lowest performance category, "below average" along with six other notoriously troubled nuclear plants:
Marble Hill, Midland, South Texas, Washington Nuclear Project No.
2, Watts Bar, and Zimmer.
The inglorious end to a number of these projects is ample 13
testiment to the aptness of this rating and the quality assurance deficiencies upon which it was based.
- See, e.g.,
Cincinatti Gas and Electric Company (William H.
Zimmer Nuclear Power Station, Unit 1) Order to Show Cause and Order Immediately Suspending Construction, CLI-82-33 16 NRC 1489 (1982).
The Commission SALP report strongly criticized the Catawba OA program The Catawba facility displays evidence of weaknesses in the area of quality assurance, including management and training.
Quality assurance weaknesses were characterized by instances of inadequate design reviews, procedures not issued, specifications and commitments not translated into procedures, and audit programs not established.
There were numerous items of non-compliance involving failure to follow procedures for activities involving welding, concrete placement, design, quality control inspections, records control, and electric equipment installation.
Catawba received a relatively large number of items of non-compliance when compared with other power reactor facilities under construction.
Most of these items of non-compliance were attributed to weaknesses in the licensee's quality assurance and management overview process.
Id.,
Appendix B-1.
The Licensing Board chooses to credit the NRC staff's present endorsement of the Catawba OA program over this l
l earlier condemnation.
June 22, 1984, PID Slip Op. pp. 60, et seg.
The hearing evidence before the Catawba Licensing Board consisted primarily of the testimony of a number of presently employed Duke welding Quality Control inspectors who were presented as witnesses both by Duke Power Company and also by Palmetto Alliance.
(The pressure's on these witnesses from their 14
employer included initial instruction barring contact with intervenors justified on the theory that these " clients" were subject to the command of Duke corporate counsel.
Appeal Board and Commission intercession was required in order to obtain any access to these witnesses, CLI-83-31, 18 NRC 1303 (1983).)
Late in the discovery process the existence of programmatic OA breakdown complaints by these welding inspectors was revealed to Palmetto and CESG.
Over a year earlier, they had approached the NRC staff with complaints of harassment, falsification of OA records, a lack of support for implementation of the OA program over a period of years, and a fear that Duke would attempt to
" white wash" their concerns.
The NRC staff deferred to Duke managsment's review of these concerns.
Staff Exhibit 7,.
It was these Duke OC inspectors' testimony regarding these concerns coupled with the Duke and NRC responses which provided the " limited window" through which we are able to view the quality assurance program at Catawba.
.See, e.g.,
Texas Utilities Generating Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2) LBP-83-81, 18 NRC 1410, 1420 l
(1983).
(on the basis of limited experience of two site engineers, Licensing Board required conduct by applicant of independent design review to address design OA doubts, 18 NRC at 1454.
"For this purpose, we intend to continue to conduct an efficient proceeding, mindful of the need not to immpose undue cost or delays on applicant, but we will not be especially concerned about meeting applicant's construction targets."
18 15
NRC at 1453.
This approach contrasts starkly with the Catawba j
Licensing Board's deference to Duke's construction schedule in the face of the Catawba OA deficiencies.)
t The testimony of these Catawba welding Quality Control inspectors - still current employees of Duke Power Company -
demonstrated the existence of a fundamentally flawed Quality Assurance program where those charged with verifying the quality of safety-related work (such as welding "' critical' reactor piping systems) were institutionally and functionally hampered in their efforts to identify, document and seek correction of violations of appropriate codes, specifications and procedures required for such work.
10 CFR Part 50, Appendix B, criterion XVI, " Corrective Action."
Such " pressure to approve faulty work" was the essence of intervenor's claims of quality assurance breakdown at Catawba.
- See, e.g.,
June 22, 1984, PID, Slip Op.
pp. 19, et. seg.
This failure by Duke to insure that the quality assurance functions at Catawba were provided " sufficient independence from cost and schedule when opposed to safety consideration" violates the " Independence Principle" of the Commission's Quality Assurance Regulations, 10 CFR Part 50, Appendix B, Criterion I,
" Organization," and precludes the
" reasonable assurance" conclusions that the reactor has been constructed such that it will operate safely, 10 CFR Section 50.57 (a).
The Licensing Board itself acknowledged that these historic flaws existed in Duke's OA organization, yet it took no action except to observes 16
We believe that the OA function at Catawba would have been performed somewhat more independently if the present organizational structure had obtained throughout construction.
June 22, 1984 PID, Slip. Op. 65.
The Board relied on the Commission's earlier " implied blessing" for such lack ot independence in Duke's OA program and concluded by expressing only " regret" that such compliance with mandatory regulatory requirements had not been established before Catawba had been substantially constructed.
Id.
Testimony of a number of present Catawba welding OC inspectors demonstrated the serious breakdown in quality assurance at Catawba resulting from cost and schedule pressures from their supervision.
These inspectors presented a shocking picture of harassment, intimidation and management discouragement of the documentation of welding deficiencies as well as unlawful management retaliation against those inspectors who dared to express concerns to Duke management in a~ responsible and conscientious manner.
See, June 22, 1984 PID, pp. 21-30, 162-l 181.
While the Licensing Board acknowledges numerous cases of l
" alleged harassment of welding inspectors to the detriment of the effectiveness of the OA program," Id. p.
162, and the likelihood that such " harassment incidents have occurred in other major crafts / inspection areas, e.g. concrete and electrical work," Id.
p.
180, the Board dismisses the serious implications of these incidents to the effectiveness of the OA program by simply chiding Duke Power Company for being " lenient" in response to reported incidents of harassment such that the QC inspectors were 17
\\'
7s i
left "with the feeling that management was not supportive of the inspection activity."
Id.,
p.
181.
Incredibly, the Licaning Board's remedial response to the harassment of QC inspectors at i
Catawba'is limited te a direction that Duke " revise its A
harcssment policy" within the following six months, Id.', although now six months have passed and the Catawba Nuclear Station is licensed for operation.
The most striking example of Duke pressure on quality control inspectors to sacrifice their responsibility for assuring
. pl.an t safety is evidenced by the retaliation against QC welding inspector supervisor Gary E.
" Beau" Ross by Duke senior managemen'. because of "his crew's strict adherence to QA procedures and expression of safety concerns."
June 22, 1984,
?
'/
- PID, p.
159.
The Licensing Board concluded that Duke Power Company Corporate Quality Assurance Manager George Grier was responsible for retaliatory efforts to demote to fire QC supervisor Ross through the device of a false and discriminatory l
performance evaluation.
(Grier was also responsible 'or improperly attempting to influence Mr. Ross' license hearing testimony, I d,.,
p.
158, urging Ross to "be clear on the meaning of terms like ' intimidation,' ' threats,' ' falsification,' and
' pr'e s sure ' to approve faulty workmanship," Id.)
The Licensing Board further concluded that Larry R.
Davison, the Projopt Quality Assurance Manager at Catawba during virtually the entire course of construction, had also discrimiaated against Ross for doing his job conscientiously and expressing safety concerns.
I,d.
Because Messrs. Grier and Davison occupy senior IIevel 18 4
m.
i supervisory positions with Duke, the Licensing Board found that such discrimination was " fully attributable to the Duke Power l
Company."
i While acknowledging that a " pattern" of such retaliation could be the basis for an operating license denial, I d,., p.
159, and that the retaliation against Ross was part of an effort by QA management to " bring about an informal relaxation of inspection procedures... (which) might have underminded the QA program at Catawba by diminishing the efforts of inspectors,"
I d,., p.
161, the Licensing board refused to look further for such a pattern of harassment and retaliation. See, e.g.
In Camera Tr.
at 948-954 (order denying request by Palmetto to reopen discovery).
The Board simply concluded, without more, that no such pattern had been shown here.
Id.
The Licensing Board concluded that the retaliation against Ross did constitute discrimination on account of his voicing safety concerns, at least violative of the spirit if not the letter of 10 CFR 50.7, and, in any event, inconsistent with the " thrust of Appendix B and the ' reasonable assurance determinations that must be made under 10 CFR 50.57 (a) (3) and the Callaway decision."
Id.
The Licensing Board refused to take any further action whatsoever by way of license modification, denial or further proceedings to remedy or probe the implications of these regulatory violations, Idl., 159, trusting simply that "the airing of this matter in public hearing and in this decision will have a salutory effect on the company's handling of similar matters in the future."
Id. at 161.
This result is small comfort for Mr.
19
Ross and his conscientious inspectors or for the public which must live with the consequences of such misconduct as it may offect the quality of construction of the Catawba Nuclear Station.
There is simply no basis in the record for the Licensing Board's implicit assurance that no such " pattern" exists, and refusal to act on the obvious implications of such conduct for the work of other inspectors.
As this Board has observed:
Common sense tells us that a retaliatory discharge of an employee for " whistle blowing" is likely to discourage others from coming forward with information about apparent safety discrepancies.
Union Electric Company (Callaway Plant, Units 1 and 2) ALAB-527 9 NRC 126 at 134 (1979).
Similarly, if quality assurance inspectors have been intimidated, that would have serious implications for plant quality no quality assurance system is any better than the individuals who record the data on which it is based.
A failure to recore deficiencies would raise serious questions indeed.
Cleveland' Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2) LBP-84-3, 19 NRC 282, 285-286 (1984).
The findings by the Catawba Licensing Board with regard to the discrimination again welding inspector supervisor Ross clearly established a 10 CFR Section 50.7 violation attributable to cenior Duke QA management.
Mackowiak v. V. University Nuclear Systems, Inc., 735 F.
2d 1159 (9th Circuit, 1984); Consolidated Edison Company of New York, Inc. v.
Donovan, 673 F.
2d 61 (2nd Circuit, 1982).
Such conduct by senior QA management in and of itself has systematic implications for the effectiveness of the 20
_,,. +,,
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-y,
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w m.m m-.-
+
s.w,,,---,
-ry.---r-y -aw e
Catawba OA system.
Further development of this record, at the very least, is required in order to reach a " reasonable assurance" conclusion.
The results of a " comprehensive program to determine the quality of completed construction work" were the basis for the Commission Order to Show Cause and Order To Immediately Suspending Construction in Cincinnatti Gas & Electric Company (William H.
Zimmer Nuclear Power Station) CLI-82-33, 16 NRC 1489, 1491 (1982).
Such a requirement to verify construction quality had been imposed after "significant quality assurance problems and related management breakdowns" were identified in allegations by site employees and the Government Accountability Project.
Id.
16 NRC 1499.
An effort to " determine the quality of completed construction work" at Catawba is clearly required on the basis of the "significant quality assurance problems and related management breakdowns" disclosed on this record.
Upon NRC staff delegation of the investigation of the walding inspector concerns, Duke Power Company management's " task forces" concluded that the inspector concerns including horassment and lack of management support of the Catawba OA program were simply " communications problems," June 22, 1984, PID, p. 160, and rejected the inspectors' technical concerns as roflecting no deficiencies in workmanship or quality assurance.
The NRC staff concurred with Duke Management.
Id.,
p.
123.
However, even the Licensing Board was compelled by the cvidence to reject-these conclusions, with regard to harassment and retaliation against inspectors, supra, and regarding the 21
inspectors' technical concerns among which it found some forty-five violations of the Commission's 10 CFR Part 50, Appendix B Quality Assurance criteria including three violations of Criteria II "Cuality Assurance Program," (One of which was "a pervasive problem that required reinspection of thousands of welds," June 22, 1984, PID, pp. 129-130); twelve violations of Criterion IV
" Instructions, Procedures and Drawings;" five violations of Criterion IX, " Control of Special Processes;" four violations of criterion X,
" Inspections;" eight violations of criterion XV, "Non-conforming Material, Parts or Components;" five violations of Criterion XVI, " Corrective Action;" and eight violations of Criterion XVII, " Quality Assurance Records."
Id.,
pp. 125-135.
In a number of instances only because of the welding.
inspectors' expression of concerns were significant conditions adverse to quality finally identified and corrected which had previously escaped remediation due to the breakdown of the Catawba Quality Assurance system.
For example, not until more than a year and half after the QC inspector's initial identification of the problem were a large number of weld repairs made to substandard containment dome plates which violated
- code
-requirements.
The plate had previously been judged acceptable by dssign engineering without even examination of the defects.
June 22,--1984, PID, pp. 116-117.
Only because of the inspector's i
expression-of concerns was action finally taken to correct the.
. problem of inadequate specification of-weld size in required process control documents.
Final corrective active required reinspection of 12,500 socket welds and the addition of weld 22
metal for those found to be undersized.
Id.
Only after another welding inspector's expression of concern was an investigation recommended to determine whether or not a more widespread practice existed of failing to require proper gapping in the fit-up of safety related socket welds where expansion of the pipe during welding may cause a weld to fail in the absence of such a gap.
The record before the Licensing Board failed to reflect whether Duke ever conducted such an investigation.
The Licensing Board directed Duke to confirm that such an investigation was, in fact, conducted and to communicate the result to the NRC staff.
If[., pp. 120-121.
The record before the Licensing Board reflects disturbing failures by the Duke OA program at Catawba to permit the proper identification and documentation of deficiencies required in order to insure that defects are, indeed, ascertained and corrected.
A visiting NRC inspector was disturbed to note in July of 1980 that Catawba welding inspectors was using personal
" black books" to document welding deficiencies instead of the required quality assarance system records.
Maxwell, Tr. 9296, 9297.
Much to the NRC inspector's concern, the practice still continued when in October of 1980 welding inspectors informed him that they were maintaining such black books for purposes of "CYA" cnd that such black books contained identified specific non-conformances not documented on site OA records.
If[., Tr. 9302-03.
After the NRC inspector informed Catawba OA manager Larry Davison of this problem, Davison reprimanded welding inspectors for going to the NRC, June 22, 1984, PID, pp. 143-144.
(Duke's 23
Executive Vice President, Warren Owen, responded to OC inspector questions regarding their freedom to go directly to the NRC without retaliation.
A less than forthright response by Owen was interpreted by the questioner as a message that he "better not go to the NRC,"
Rockholt Tr. 6361.
The Board ultimately directed that the NRC staff promulgate a clearer and more definitive statement of policy in understandable terms regarding access to the NRC.
June 22, 1984, PID, pp. 145-146.)
The record discloses cdditional troubling evidence that Catawba OA management simply discarded or " verbally voided" required quality assurance documents 0-1A's, Nonconforming Item Reports on NCI's) rather than incorporate them in the permanent site records.
The Licensing Board holds this practice as a mere benign effort to employ less formal'means for documenting deficiencies.
June 22, 1984, PID, pp.96-115.
The Board's reaction to the " black book" cnd " verbal voiding" reflects a disturbing casualness for strict edherence to the Commission's clear quality assurance requirements.
10 CFR, Part 50, Appendix B, Criterion V,
" Instructions, Procedures and Drawings;" Criterion XVII, " Quality Assurance Records."
The absence of required documents as
" evidence of activities effecting quality,"
Id.,
casts serious doubt on the assurance that conditions adverse to quality have indeed been identified and corrected.
The NRC staff, upon review of Duke's self-investigation, found absolutely no violation of Commission regulations reflected in the welding inspector concerns or Duke's conduct.
The staff interprets the Commission's enforcement 24
policy 10 CFR Part 2, Appendix C, IV, A as not warranting citation since any violations were of low severity level and were found by Duke and reported.
It is simply incredible that Duke management should be credited with identifying violations brought to their attention by the very welding inspectors who met harassment and retaliation from Duke management for their trouble.
Further, many of these violations were long-standing, not corrected within a reasonable time, and should have been prevented by corrective action for previous violations.
It is simply an insult to the conscientiousness of these quality control inspectors to credit their tormentors, the Duke Quality Assurance management such as Messrs. Grier and Davison, with the identification of the quality assurance violations the voicing of which prompted their unlawful retaliation.
June 24, 1984, PID, pp.67-161.
The Licensing Board conclusions on this matter are nimply internally inconsistent.
One simply cannot find Duke's QA management responsible for attempting to " bring about an informal relaxation of inspection procedures," in discriminating against Ross and his crew for their expression of safety concerns, and then credit these same managers with having identifed those concerns themselves.
Id.
On the basis of Palmetto Alliance's representations that Catawba workers' willingness to present safety concerns to the NRC was " chilled" by fear of retailiation from the company, the Licensing Board agreed to heard safety concerns, in camera toward the end of the initial evidentiary hearings on QA at Cotawba.
See, June 22, 1984 PID, pp. 12-19 and 40-42 for the 25 1
Board's summary of the development of this evidence.
Among the four originally in camera witnesses was former Catawba welder Sam Nunn who raised eight safety concerns, of which four went to hearing after surviving motions to strike by the staff and cpplicants.
One of these concerns was " foreman override,"
defined as the practice of craft supervisors pressuring workers to violate established safety standards or procedures in order to meet costs or schedule requirements.
June 22, 1984, PID, pp.
232-238.
Palmetto's request for an opportunity to pursue any discovery of evidence from Duke or the NRC on these in camera issues was opposed by Duke and the NRC and refused by the Board, en was a previous request for additional discovery on OA issues, largely out of the Board's commitment to complete licensing prior to Duke's anticipated construction completion, as mandated by their understanding by the Commission Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981),
Tr. 11,217-8.
Palmetto unsuccessfully sought Appeal Board review of the Board's denial of any further discovery on the " foreman override" and other newly admitted issues.
See, December 16, 1984; " Palmetto Motion to Direct Certification, etc;"
June 22, 1984, PID, pp. 16-19.
Although Duke, the NRC staff and the Board rejected the foreman override claims of welder Sam Nunn as unsubstantiated; cven before the earlier record was closed, significant corroborating evidence of a most serious character was presented, in confidence, to NRC staff investigators by a Catawba welder identified as " Welder B."
While refusinng to require even 26
protected disclose of the details of this new evidence to Palmetto and CESG, the Board determine to await completion of NRC staff and Duke Power Company investigations of the " Welder B" foreman override concerns, June 22, 1984 PID, pp. 236-238; yet it concluded that "there is no indication of a pattern of foreman pressure to 'get the job done without regard to quality' at Catawba."
Id,.
How very wrong the Licensing Board was in reaching that conclusion became apparent only on the eve of licensing when, in haste, the hearing record was reopened to receive widespread evidence of just such pressure to sacrifice quality requirements and circumvent GA procedures in order to meet production schedule.
On the eve of Duke's then most recent operational echedule, the Licensing Board was confronted with the concequences of the very quality assurance breakdown which had been identified, yet ignored on the record of the closed quality cssurance hearings.
The evidence before the Board and parties from the NRC staff and Duke's subsequent forman override investigations simply belied the conclusions advanced by both Duke and the NRC staff that foreman override was not a problem at Catawba.
What was the Licensing Board tb do?
Serious and thorough consideration of this new evidence would clearly impact Duke's commercial operation schedule; and, yet, this evidence was co damning that to ignore it simply invited disaster from both the procedural and substantive perspectives.
Sadly, instead of honoring the asserted principle that public health and safety comes first, even before the drive to license this facility, the 27
Licensir4g Board, once again, attempted to force-fit consideration of those unraveling QA problems into Duke's sacred operating schec.ule.
- See, e.g.,
November 27, 1984, PID, pp. 2-5.
On the basis of Palmetto Alliance's showing and over the objectiva: Of D;ke and the NRC staff, the Licensing Board agreed on September 21, 1984 to reopening the hearing record to consider the safety significance and extent of the foreman override evidence.
The entire matter occupied less than a month of pre-hearing and hearing consideration, with the Board's decision to reopen the hearing on September 21, 1984 and concluding the early morning hours of Saturday, October 13, 1984, when the hearing was adjourned and the record was finally closed on quality assurance claims.
In the intervening three weeks, Palmetto and CESG were required to replicate investigations conducted by the NRC staff and Duke Power Company over a period of nine months including the review of multiple affidavits from over 217 Catawba craftsmen and supervisors involving hundreds of technical, workmanship, and QA concerne and thousands of documents.
Palmetto was served with a mass of documentary materials on or about September 26, 1984 and permitted to conduct a limited number of depositions during the four days between Tuesday and Friday the following week.
It was expected to conduct interviews with all of the knowledgeable craftsmen of its choosing in order to prepare for hearing commencing Tuesday, October 9, 1984.
28
t i
Intervenors confronted the impossible yet exhausted i
i every effort to obtain and analyze crucial unfolding evidence of OA' failures and workmanship defects as it presented itself.
It was not until late in the afternoon on Friday, October 5, 1984 t
that Palmetto finally unraveled the " suppress (ed)" evidence of I
Duke's field weld tests which indicated the existence of significant sensitization of " critical" welds at Catawba to i
intergranular stress corrosion cracking (IGSCC).
- See, e.g.
November 27, 1984 PID, p. 38.
The results of such field weld I
testing by Duke were not described-in Duke's Investigation Report to the Board and parties, nor to the NRC staff's own technical j
consultant sent to investigate the problem at Catawba.
Only after disclosing such test results to Palmetto on Friday, October 5,
1984, did Duke's engineer, Kruze, report the results of this field test to the NRC staff consultant.
Tr. 13, 473.
The practice of foreman override at Catawba reflected the natural consequences of the failure by ' Duke to assure that all those charged with responsibility.for quality assurance in conformance with the Commission's 10 CFR Part 50, Appendix B r
i
' requirements were provided sufficient independence from cost and ccheduling consideration in order to effectively perform-their OC i
i and QA functions.
Foreman override, the practice of craft l
[
supervision pressuring workers to cut corners and violate OA or I
safety standards in order.to get the job done, reflects the most
(
serious challenge to the OA program.since the practice involves 1
intentional circumvention of quality standards (such as, for example, posting lookouts to stand guard for quality control 29
,My,_.-,..m y,,,_,-, - ~, -. -.,,,, - -, ~ -,, -. _
..,-.,,-----..-_.-.-~.-.---..-------v
,-,...,,,,.7
inspectors while procedures were violated) and not simply the sort of human error or inartfulness that a QA system is designed to identify and correct.
- See, e.g.,
November 27, PID, pp. 19-24.
The initial evidence which prompted the NRC staff and Duke investigations of foreman override came from confidential source " Welder B."
The craftsmen presented evidence not previously revealed to Duke or the NRC staff extending back years at the site,. of practices by his foreman (one Arlon Moore), who pressured his crews to get the job done at the expense of quality requirements.
According to the NRC staff's report of their interview with this craftsman, he related the following example:
He stated that in late'1981, he was welding in the Unit 1 pipe chase working two or two and one half inch schedule 180 heavy wall stainless steel socket welds which he believed were either class B or C welds.
He said that he had set up a small. fabrication work area and that he was welding sockets with the use of a jack stand on the fabrication table.
He said that his foreman told him that job absolutely had to be completed and that he had to keep on welding.
He said that the foreman had the crew lead man standing guard to watch for QC inspectors who might come in the area where he was working.
He said he was welding very fast that he had to wrap his hands to protect them from the heat.
He said that he did not maintain interpast temperature as required when welding stainless steel and When he complained to the foreman that the work was out of procedure, the foreman told-him to keep welding or " hit the road."
l Individual B stated that while he was still working for the foreman, he had a-conversation with the foreman Who said, "that if any ' son-of-a-bitch' messed with my job, I would cut his throat."
He said that he recalled the foreman casually mentioning that there-was a hit man in Westminster (SC) Who would kill someone for one hundred dollars.
Individual B took these remarks by the foreman as a threat especially in light that the foreman had told him that he was a convicted felon who had served time in prison.
30
NRC Staff Exhibit 31.
Such a statement is shocking, indeed, and its truthfulness is unquestioned by the Licensing Board's decision.
Yet, such practices by this foreman have been going on at Catawba for at least four years undetected by Duke's OA program or by the inspection and enforcement efforts of the NRC staff.
The throat of retaliation, in particular, discouraged the reporting of such conduct by those who are its victims.
Yet, even on the evidence from Duke's own limited investigation the existence of this practice of foreman pressure extended far beyond this single foreman to other welding foremen and other foremen in such safety-related crafts as pipefitting end electrical instrumentation.
On the limited basis of the affidavit evidence collected by Duke in its own study of the i
practice, Palmetto identified twenty-three supervisors implicated in foreman override practices.
The Board itself does not appear to dispute this conclusion but simply eliminates many of these instances for lack of clear proof of their significance on this limited existing record.
November 27, PID, pp. 32-33.
Since the NRC staff delegated its inspection responsibility to Duke
. management to investigate its own wrongdoing, the true scope, extent and significant of foreman override practices for workmanship at Catawba remain yet unknown.
However, it is clear oven from this record that the experiences of harassment such as for Welder B at the hand of foremen like Arlon Moore - literally out of control in his zeal to meet production - were the natural consequences of Duke Power Company's rush to complete and license
the Catawba Nuclear Station regardless of the cost and sacrificed quality of workmanship.
We ask that the Appeal Board specifically consider the Proposed Findings of Fact and Conclusions of Law on the Issues of Foreman Override submitted by Palmetto and CESG to the Catawba Licensing Board which provide a detailed factual analysis of the foreman override record.
As is reflected in those proposed findings, pp.
14,417-14,426, serious methodological flaws in Duke's study prevent generalization regarding the extent of foreman override problems at Catawba.
Palmetto and CESG presented the expert testimony of Dr. Raymond Michalowski, Professor of Sociology at the University of North Carolina at Charlotte, who detailed serious methological flaws undermining the validity and reliability of Duke's study.
Palmetto Exhibit 147.
Duke's interviews with only two per cent of the powerhouse mechanics and electricians and four per cent of the steel workers simply provide no basis for generalizing to the population of persons in those crafts who work in safety-related area.
Hollins, Tr.
13,247-250, Applicant's Exhibit 113.
Further, the reliability of Duke's study is seriously compromised by the nature of the high risk information sought, the interview environment involving Duke questioners and the nature of the questions asked themselves.
Palmetto Exhibit 147.
Even so, Palmetto's review of the offidavits themselves, Proposed Findings 14,426-14,430 and cccompanying tables, reflect the broad extent of foreman override concerns which have been disclose,d.
32
The Board's attention is specifically directed to the Licensing Board November 27, 1984 P.I.D, pp. 34-40 which discusses the evidence of violations of interpass temperature in oafety-related welding caused by the foreman override practices.
Palmetto and CESG's proposed findings on this subject, pp.
14,396-14,407, set forth' evidence of the safety significance of such improperly made welds which are sensitized to intergranular stress corrosion cracking.
The Licensing Board acknowledges that two of the three causes of IGSCC in stainless steel are present in the improperly " welded critical" safety welds at Catawba.
Yet, the Licensing Board simply trusts that IGSCC failure is "not expected" to occur at Catawba, November 27, 1984, P.I.D.,
- p. 39.
The NRC's own Regulatory Guide 1.44 " Controls of the Use of Sensitized Steel" rejects such blind confidence:
Control of the application and processing of stainless steel to avoid severe sensitization is needed=to diminish the numerous occurrences of stress corrosion cracking in sensitized stainless steel components in nuclear reactors.
Test data demonstrates that sensitized stainless steel is significantly more susceptible to stress corrosion cracking than non-sensitized (solution heat treated) stainless steel.
The welding of safety-related stainless steel piping at Catawba in violation of required interpass temperature controls dasigned ta) minimize sensitization and prevent intergranular stress corrosion cracking presents a clear regulatory violation otemming directly from the foreman override practices.
It also atands as an untested yet serious reduction in the level of 33
cafety conservatism in the construction of the Catawba Nuclear Station.
There are a large number of other workmanship defects identifiably associated with OA failures reflected in the June 22, 1984 PID, pp.67-136; and particularly associated with the foreman override practices only recently brought to light.
November 27, 1984, PID, pp. 18-32.
Palmetto and CESG urge that the suppressed evidence of the existence of IGSCC sensitized walds in critical safety systems at Catawba is compelling enough, in and of itself, to require the Appeal Board's intercession in order that the full extent of these defects can be ascertained and corrective action taken.
Palmetto and CESG submit that the " definitive findings of safety" required by the Atomic Energy Act as a prerequisite to the issuance of a license to operate a nuclear power plant, Power Rsactor Development Co. v.
International Union of Electrical, Radio and Machine Workers, AFL-CIO, 367 US at 398, simply cannot be reached on the record at Catawba.
This Board has acknowledged this same principle, ironically in reviewing the licensing dscision for Duke's McGuire Nuclear Station, Duke Power Company
-(William B. McGuire Nuclear Station, Units 1 and 2), ALAB-128, 6.
AEC 399 at 410 (1973):
In an area as significant as QA, the record should leave no doubt as to whether the applicant is in full compliance with applicable criteria and, if not, the basis upon which the regulatory staff authorizes any departure from such criteria, t
34
The remedy of suspension of construction so that remedial action can be taken is clearly justified on this record on application of the Commission's decisional precedent.
Cincinatti Gas and Electric Co. (William H.
Zimmer Nuclear Power Station) CLI-82-33, 16 NRC 1489 (1982).
The members of Palmetto Alliance and Carolina Environmental Study Group and other citizens residing in proximity to the Catawba Nuclear Station are entitled to expect no less a standard to be applied to this nuclear plant.
II.
THE LICENSING BOARD ERRED IN DEPRIVING PALMETTO ALLIANCE AND CAROLINA ENVIRONMENTAL STUDY GROUP OF A FAIR OPPORTUNITY TO BE HEARD ON THEIR QUALITY ASSURANCE CLAIMS THROUGH ITS DENIAL OF ACCESS TO NECESSARY EVIDENCE AND DISCOVERY AND ITS IMPROPER LIMITATION ON THE NUMBER OF WITNESSES AND TIME ALLOTTED FOR EXAMINATION OF WITNESSES AT HEARING.
Where the standard of proof required of Palmetto and CESG in order to prevail on their quality assurance claims, rcquired a showing of a " pervasive failure to carry out the quality assurance program," at Catawba, Union Electric Company (Callaway Plant, Unit 1), ALAB-740 18 NRC 343, 346 (1983), the Licensing Board's refusal to permit intervenors access to material evidence through improper limitations on discovery, and impermissible restrictions on the opportunity for proof at hsaring-deprives intervenors of their section 189(a) hearing rights under the Atomic Energy Act, violates the Commission's 35
" Statement of Policy on the Conduct of Licensing Proceedings,"
CLI-81-8, 13 NRC 453, 453 ("The Commission wishes to emphasize though that, in expediting the hearings, the Board should insure that the hes. rings are fair, and produce a record which leads to high quality decisions that adquately protect public health and safety in the environment"), and, in effect, improperly serves to preclude proof of intervenors' claims.
Padovani v.
Bruchausen, 293 F.
2d 546 (2nd Cir., 1961).
Since the very outset of the Catawba operating license proceeding, the fuel load and operational plans of Duke Power Company have controlled the litigation schedule and limited the intervenors' opportunity to prepare for hearing through discovery of evidence in support of their claims and consequently their right to be heard.
The constriction of Petitioner's hearing rights by the Licensing Board have profoundly limited the scope of evidence available for use and support of our quality acsurance claims.
Under the Commission's primary decisional authority, the standard of proof of the quality assurance breakdown sufficient to warrant license denial requires demonstration of " pervasive" quality assurance failures and a pcttern of deficiencies as contrasted with mere isolated defects.
Callaway, supra.
The narrowing of pre-hearing discovery and preparation rights and limitation on the scope and quantity of i
evidence permitted to be offered impermissibly hamper the establishment of such patterns and pervasiveness.
36
Intervenors have consistently identified good cause for expanded discovery of quality assurance failures at Catawba.
Pursuing leads as they became available, we time and again sought relief to gather evidence of quality assurance deficiencies.
Time and again the Licensing Board responded with slavish deference to Duke Power Company's imprecise and ever-shifting operational schedules for the Catawba Nuclear Station.
At the outset of the proceedings, Duke represented that it would be prepared to load fuel and commence operations at Catawba in the August to December 1983 time frame.
Tr. 17-19.
By May of 1982, Duke had slipped its schedule to October 1984, on the basis of which, at the request of Duke and the NRC staff, the Board stayed discovery by intervenors on our quality assurance contention for over six months.
(As we later have learned, the most significant known quality assurance flaws were unfolding as the welding inspector safety concerns were documented and investigated while our discovery rights were under suspension.)
In January 1983, Duke announced their intention to accelerate a construction ochedule to completion by May of 1984.
Tr. 6061.
Although Palmetto Alliance and Carolina Environmental Study Group challonged Duke to substantiate the reliability of its construction schedule representations and objected to the Licensing Board's interpretation of the Commission's Statement of l
Policy, 13 NRC 452 (1981), as dictating the sacrifice of procedural protections for intervenors to satisfy the private interest of the utility.
The Board turned aside our objections 37
cnd declined our offer to demonstrate the unreliability of the utility scheduling assertions.
The Board adopted a hearing echedule limiting our discovery on our quality assurance contention to less than five months while committing itself to a license decision in order to meet the utility's May 1, 1984 cchedule.
Duke Power Company, et al. (Catawaba Nuclear Station, Units 1 and 2) Memorandum and Order (Denying Motion for Rsconsideration or Referral in Establishing Schedule), February 2,
1983.
The 1981 Statement of Policy was adopted in the immediate post-Three Mile Island accident licensing environment expressly by the Commission to remedy the licensing backlog created by the diversion of Commission resources to enhancing gafety of operating reactors.
By its own terms, the Statement of Policy had no application to Catawba whose scheduled hearings fell far outside the twanty-four month impact period identified explicitly in the Policy Statement, 13 NRC at 453, and where licensing has proceeded at the very swiftest pace.
In any event, the sacrifices of important procedural protections to participants in licensing proceedings and of the protection of the public health and safety cannot be legitimately bartered away in exchange for narrow economic interests of the utility seeking a Commmission license.
Palmetto repeatedly sought to develop the evidence of quality assurance failures as indications of such failures became available to them.
Discovery on Palmetto's quality assurance contention 6 had only been formal.ly opened between December 1, 4
38
1982 and May 20, 1983.
However, promptly on the basis of Palmetto's discovery of documents reflecting the serious safety allegations regarding quality assurance failures in welding, Palmetto sought an expansion of discovery on its quality assurance contention.
See, " Palmetto Alliance Motion to Establish Discovery Schedule on Its Quality Assurance Contention 6 (May 25, 1983).
The Appeal Board's attention is directed to this motion for a recitation of the extreme dilatory discovery tactics engaged in by Applicants and the NRC staff which resulted in the production of critical quality assurance evidence only at the latest hour in the discovery period.
In response to Palmetto's Motion the Licensing Board acknowledged that:
1.
many of the documents concerning QA in welding did in fact come into Palmetto's possession late in the discovery process; 2.
"these QA welding documents appear to raise serious safety questions (which), if substantiated, could compromise the safety of the Catawba facility;" and, finally, "it appears to the board that these documents might have bsen transmitted to Palmetto earlier than they were, if the Applicants and staff had been interested in disclosing matters of obvious relevance to contention 6 early 'in discovery."
Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2)
M:morandum and Order (Ruling on Palmetto Alliance Motion for Further Discovery), June 13, 1983, pp. 5-6.
The Licensing Board 6
39
rejected Palmetto's request to extend discovery into October, and granted only an extension of less than one month for Palmetto to conduct depositions limited to the welding questions.
Id. p.
7.
Information which came to Palmetto's attention during this limited extension of discovery prompted us again to seek further discovery of quality assurance failures beyond the walding concerns.
Only then did we learn of the existence of the only quasi independent and highly critical audit of the quality of construction at Catawba entitled " Construction Project Evaluation for Catawba Nuclear Station Unit 1-2, (which became known as the "INPO Report" since performed under guidance from the Institute for Nuclear Power Operations) by a team of Duke and Tsnnessee Valley Authority (TVA) personnel.
Based on the specific findings of the INPO Report, Palmetto sought reopened discovery in areas where critical findings were made:
- pipe, hcngars, the auxiliary feedwater systen, the residual heat removal system, heating ventilation and air conditioning (HVAC) and design.
With the Board's authorization, Palmetto's motion w s made in a transcribed telephone conference call, September 9, 1983, Tr. 1299 - 1323, in which the Board and all parties participated.
The Licensing Board passed on Palmetto's Motion To Rsopen on the record of the operating license hearings, November 4,
1983.
Tr. 5974-5983.
The Board, there, concluded that the October 1982 INPO Report was obviously relevant to the quality ccsurance contention and "should have been turned over at the 40
bIginning of discovery and served on the Intervenors."
Tr. 5978.
The Board thus viewed Palmetto's motion to reopen as timely, Tr.
5970.
It concluded as follows:
The board's present assessment of INPO, based on our review of the portion cited by Palmetto, and our review of the other portions, portions of the report do seem to reflect a wide range of problems in OA at Catawba.
Tr. 5979.
However, instead of granting Palmetto's motion to reopen, the board reserved judgment in order that it might hear from the authors of the report to determine "whether it is good cause to believe that the matters addressed in relevant portions of the INPO Report indicate breakdowns in OA in one or more areas at the Catawba facility other than the welding areas that are presently being litigated before us Tr. 5979.
The examination of the report's authors occurred late in the QA hearings and was conducted without any prior opportunity for Palmetto to review any of the underlying technical evidence available alone to Duke, and included only the most truncated opportunity for Palmetto to ask summary questions of an enormous panel of audit participants.
Duke, predictably, used this opportunity to minimize and obtain retractions of such portions of the written evaluation as was possible.
At the conclusion of the panel presentation Palmetto was permitted only the briefest opportunity to argue the effects of this presentation on its 1
motion for further discovery.
Tr. 10053, et seg.
On the eve of cdjournment of the quality assurance hearings, the Licensing Board rejected Palmetto's September request for further 41
discovery.
In camera Tr. 948-954.
Clearly this result was improper particularly where the Board concluded that Palmetto chould have been provided with this critical report at the outset of discovery.
Tr. 5978.
It was for Palmetto and not the Board co the trier of fact (nor the Applicants alone), to explore and dsvelop the evidence underlying the INPO Report through fair access in discovery.
The report's express criticisms of OA at Catawba remain Tr. 5979.
On the basis of Palmetto Alliance's representations that Catawba workers' willingness to present safety concerns to the NRC was " chilled" by fear of retaliation from the company, the Licensing Board agreed to hear safety concerns, in camera, toward the end of the initial evidentiary hearings on OA at Cctawba.
See, June 22, 1984, P.I.D. pp. 12-19 and 40-42 for the board's summary of the development of this evidence.
Among the four' originally int camera witnesses was Catawba welder Sam Nunn who raised concerns including the existence of a practice of
" foreman override," the practice of craft supervision pressuring workers to violate established safety standards or procedures'in order to meet a cost or schedule requirements.
Promptly upon Licensing Board admission of these issues in litigation on December 13, 1984, Palmetto sought formal or informal discovery.
opportunity on these issues.
As it had in the past, the Licensing Board rejected this request by Palmetto largely out of its commitment to complete licensing prior to Duke's anticipated construction completion.
Palmetto unsuccessfully sought directed 42
csrtification of this decision to this Appeal Board on December 16, 1983.
See, June 22, 1984, P.I.D.
pp. 16-19.
Ironically, the oignificance of this foreman override evidence would remain hidden from Intervenors and the Licensing Board until the reopened hearings of the following October on the widespread
" foreman override" concerns.
Finally, Palmetto and CESG were confronted with the most " truncated", Tr. 12, 889, discovery opportunity in preparation for the reopened foreman override hearings.
Palmetto and CESG diligently pursued the discovery opportunities made available to us and made the Board aware of our needs for further preparation opportunities at the very earliest opportunity at the beginning of the October 9, 1984 hearing.
This was the first opportunity for Palmetto to move the Board to compel production of documentary evidence which Duke had refused to make available.
i Similarly, it was the first opportunity for Palmetto to seek Board relief to effectively gathering evidence from the over 217 Duke employees whose statements were the substance of the foreman override evidence.
Once more in deference to Duke's asserted criticality date, and in misapplication of the Commission's Statement of Policy, the Board denied Palmetto's request for relief.
Ironically, only at the close of the hearing did Applicants announce a schedule slippage of almost a month, followed thereafter by further slippages into early January 1985.
43
As the Board notes in passing, "with the benefit of hindsight, 4
the foreman override hearing could have been held somewhat later than it was."
November 27 P.I.D.
Slip Op. p.
5.
In addition to the constrictions on discovery the Licensing Board impermissibly precluded Palmetto and CESG from an 1
offective opportunity to present the evidence that was available
~
to them through arbitrary limitation on the number of witnesses with obviously relevant testimony which Intervenors could present end an equally arbitrary limitation on the time allotted to Intervenors to conduct cross examination of Applicants' witnesses.
Thus, for the reopened foreman override hearings 3
where 217 Duke employees' affidavits were presented in evidence by Applicants, Palmetto was permitted the opportunity to present
]
only five affidavits at hearing.
November 27, P.I.D.
p.
16.
In its P.I.D. of June 22, 1984, the Licensing Board acknowledges the time limits and limits on numbers of witnesses it imposed over Palmetto's objections, Id,,
pp. 8-12.
Frequently during the hnarings Palmetto's examination was terminated by the Licensing Board upon expiration of these arbitrary time limits, See, eg.
examination of Inspector Bryant, Tr. 6086, et seg.
Of the 35 walding inspectors and first line supervisor witnesses, Palmetto was permitted to question only 15.
Id,. pp. 9-10.
In support of its extraordinary approach in arbitrarily limiting the time for Intervenors' examination and the number of witnesses which Intervenors could call, the Licensing Board seeks comfort in the authority of MCI Communications Corporation v.
44
American Telephone & Telegraph Company, 85 FRD 28 (ND Ill. 1979),
aff'd 708 F.2d 1081, 1170-73 (CA7, 1983).
June 22, 1984, P.I.D.
- p. 11.
Aside from endorsing in the most general terms the catablishment of time limits on the trial of complex cases, MCI provides little support for the Licensing Board's extraordinary cpproach.
The affirmance of the District Court's limits in that case is predicated explicitly on two grounds which will not support the decisions of the Catawba Licensing Board.
First, MCI was an anti-trust proceeding and unlike Palmetto's OA claim, no
" pervasiveness" test was applicable to require consideration of additional testimony which was explicitly characterized in MCI as cumulative and irrelevant.
Second, the Court of Appeals datermined that District Court had not transgressed the constraints of Padovani v. Bruchhausen, 293 F.2nd 546, 549-50 (2nd Circuit 1961), which disapproved the practice of excluding witnesses on the basis of mere numbers as at Catawba.
- Indeed, exclusion of witnesses on the basis of mere numbers was exactly the approach taken by the Catawba Licensing Board, an approach that was particularly prejudicial where the numbers of quality aosurance deficiencies were explicitly considered in rejecting Palmetto's claims of pervasive quality a'ssurance flaws.
The Licensing Board restrictions on Intervenors' opportunity to discover evidence in support of its quality ecsurance claims and to present its evidence fairly at hearing d:prived Intervenors of a fair opportunity to be heard contrary to the protections of $189A of the Atomic Energy Act and the 45 m
Commission's Statement of Policy on the conduct of licensing proceedings, 13 NRC 452 (1981).
Its restriction amounted to
(
preclusion orders preventing Palmetto and CESG from litigating their quality assurance claims.
Padovani v.
Bruchhausen, supra.
III.
THE LICENS2NG., BOARD ERRED IN CONCLUDING THAT ADEQUATE PROTECTIVE MEASURES CAN ANE WILL BE TAKEN IN THE EVENT OF A RADIOLOGICAL EMERGENCY AT THE CATAWBA NUCLEAR ETATION WHERE THE PROMPT PUBLIC ALERT AND NOTIFICATION SYSTEM HAS NOT RECEIVED THE REQUIRED EVALUATION AND NECESSARY CORRECTIVE ACTIONS FOR APPROVAL BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY AND THE NRC.
Palmetto Alliance and Carolina Environmental Study Group challenged the adequacy of the prompt alert and notification system to be used in the event of a radiological emergency at Catawba as required by 10 CFR,50.47(b)(5).
The emergency planning Licensing Board approved the Catawba public notification system (subject to the requirements of a license condition requiring an enhanced emergency plan for the nearby Carowinds Theme Park) inspite of the fact that the Federal Emergency Management Agency (FEMA) had not yet evaluated the Catawba system as it is required to do employing the acceptance criteria and guidance contained in NUREG-0654, Appendix 3 and in N
F EMA-4 3, the Standard Guide for Evaluation of Alert and Notification Systems for Nuclear Power Plants (September 1983).
Supplemental Partial Initial Decision on Emergency Planning pp.
59-72 (September 18, 1984).
s According to the pre-filed testimony of the FEMA witnesses, Messrs. Heard and Hawkins:
46
057.
Is the siren system adequate to provide early notification to the persons in the EPZ (plume) (1) generally, (2) who have hearing impairments, (3) who are inside homes with perhaps competing sounds from t.v.
programs and record players, and (4) who are asleep, giving consideration in each case to the effects of weather conditions, such as snow or excessive wind with howling or strong wind noise?
Explain.
A57.
Alert and notification systems have been satisfactorily operationally tested periodically.
The official, engineering and acoustical testing will be accomplished utilizing guidance provided by the publication entitled " FEMA 43" at some future date.
NRC Staf f Exhibit. EP-2 pp. 20-21.
The Licensing Board apparently takes the position that it may fully approve the Catawba alert and notification system inspite of the absence of the required FEMA review and evaluation on the basis of a predictive finding that the system will be adequate at some unspecified future time.
September 18, 1984 P.I.D.,
- p. 62, citing Detroit Edison Company, et al. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730, 17 NRC 1057, 1066 (1983); and, Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103-04, 1106-07 (1983).
Palmetto Alliance and Carolina Environmental Study Group urge that where the FEMA review of the adequacy of the prompt alert and notification system is material licensing Catawba for full power operation, failure to require consideration of such a material matters in the licensing proceeding impermissibly 47
dsprives Intervenors of their $189(a) hearing rights, 42 USC
$2239(a) (1976).
Union of Concerned Scientists v.
U.S.
NRC, 735 F.2d 1437 (1984).
The standards for acceptance of the Catawba prompt clert and notification system are set forth in Appendix 3, pp.
3-3, 3-4 of NUREG 0654/ FEMA REP-1, Rev.
1,
" Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (November 1980).
This is a joint FEMA /NRC document of which the Emergency Planning Board took official notice, Tr. 4615-17.
The
" criteria for acceptance" for the prompt alert and notification system provides:
1.
Within the plume exposure EPZ the system shall provide an alerting system and notification by commercial broadcast (e.g.,
EBS) plus special systems such as NOAA Radio.
A system which expects the recipient to turn on a radio receiver without being alerted by an acoustic alerting signal or some other manner is not acceptable.
2.
The minimum acceptable design objectives for coverage by the system are:
a)
Capability for providing both an alert signal and an informational or instructional message to the population on an area wide l
basis throughout the ten mile EPZ, within 15
- minutes, b)
The initial notification system will assure direct coverage of essentially 100% of the population with five miles of the site.
c)
Special arrangements will be made to assure 100% coverage within-45 minutes of the population who may not have received the l
initial notification with the entire plume EPZ.
'The. basis for any special requirements exceptions l
(e.g.,
for extended water areas with transient boats or remote hiking trails) must be j
documented.
Assurance of continued notification 48
capability may be verified on a statistical basis.
Every year, or in conjunction with an exercise of the facility, FEMA, in cooperation with the utility operator, and/or the state and local governments will take a statistical sample of the residents of all areas within about ten miles to assess the public's ability to hear the
. alerting signal and their awareness of the meaning of the prompt notification message as well as the availability of information on what to do in an emergency.
The system plan must include a provision for corrective measures to provide reasonable assurance that coverage approaching the design objectives is maintained.
NUREG 0654, App. 3, pp. 3-3, 4.
Further guidance is provided in Appendix 33 pp. 3-8, 3-13 and 3-16.
In addition, the FEMA review is guided by FEMA-43, " Standard Guide for the Evaluation of Alert end Notification Systems for Nuclear Power Plants," (September 1983).
Neither the field testing of the sirens nor the conduct of the statistical survey of the EPZ populace to determine whether.the sirens have been heard and their meaning understood have been performed.
Intervenors Palmetto Alliance and CESG-
' offered in evidence results of a February 1984 survey performed by Duke Power Company of the EPZ populace which reflected that come 25.7 percent of the respondents indicated they had not received any brochures or pamphlets telling them what steps to take in the event of an emergency at the plant.
The Licensing Board refused to consider these exhibits, which were identified as Intervenor Exhibit EP-9 and 10, offers of proof.
The existence of this survey information establishes that at least Applicants were fully capable of conducting such a study as required by the acceptance criteria in order to determine the nsed for supplementary notification means and other necessary 49
corrective action.
The large number of persons apparently indicating that they had not received the required informational brochure, itself, is troubling and reinforces the need to require the FEMA review which the acceptance criteria specify.
Applicants offer the testimony of their acoustical expert, M. Recda Bassiouni.
His study identified siren coverage design deficiencies and recommended the installation of ten additional sirens to remedy these gaps in siren coverage.
Applicants Exhibit EP-17, Bassiouni, pp. 3-4, Attachment C; Glover Tr. 1822, 5/11/84.
Not all persons will hear the sirens even if they operate according to design.
Weather conditions will affect the ability of the sirens to be heard and do their
-job.
Falling rain will raise ambient noise levels by several decibels.
Bassiouni, Tr. 1860, 5/11/84.
Snow fall on the ground can absorb the siren sound up to 6 or 7 decibels.
Bassiouni, Tr.
1860-61, 5/11/84.
And a siren signal propating against the wind will be attenuated based on wind velocity and direction deflecting the siren signal upward and limiting its audibility in positions.that are upwind from the siren.
Bassiouni, Tr. 1862, 5/11/84.
Finally, many people in the EPZ also will not likely hsar the siren if indoors where such normal life functions as the operation of an air conditioner with closed windows during the hot months or sound levels from a t.v. or stereo may generate ambient noise levels which drown out the sirens.
Bassiouni, Tr.
1852-1854, 5/11/84.
50
Thus, without an empirical measurement of the degree to which the limitations on siren audibility and public awareness of siren signal meaning will adversely affect reliance upon the ciren system as a means for prompt notification, there is no basis for establishing the design requirements to be applied to the use of supplemental notification means to notify those which the siren system has not reached.
Nor can the required corrective measures be either identified or implemented to assure offectiveness.
NUREG 0654, App. 3.
The state of the record before the Catawba Licensing Board simply does not support a meaningful conclusion as to the offectiveness of the alert and notification systems to be used at Catawba.
Since by the explicit terms of the NRC and FEMA guidance document, NUREG-0654, FEMA-REP-1 (Rev. 1) the means for establishing the acceptability of a prompt alert and notification system are established, the Licensing Board erred in reaching a reasonable assurance conclusion in the absence of the required verification.
Such a material factor must he subject to litigation in the public hearing and may not be simply left to less formal staff resolution later.
This board's conclusion in l
Wnterford, supra, if understood to be to'the contrary cannot be squared with the Court of Appeals decision in UCS v. NRC, supra.
Thus, the Licensing Board decision approving the Catawba alert and notification system on the basis of these impermissible
" predictive" findings must be reversed.
51
IV.
THE LICENSING BOARD ERRED IN WHOLLY DEPRIVING PALMETTO ALLIANCE AND CAROLINA ENVIRONMENTAL STUDY GROUP OF AN OPPORTUNITY FOR A HEARING ON IMPORTANT SAFETY AND ENVIRONMENTAL CLAIMS THROUGH IMPERMISSIBLE INTERPRETATION OF THE COMMISSION RULES OF PRACTICE REGARDING THE FILING OF CONTENTIONS FOR LITIGATION.
if INTERVENORS' SAFETY CLAIMS INCLUDED THE SAFETY OF THE CATAWBA EMERGENCY DIESEL GENERATORS, HYDROGEN CONTROL MEASURES TO PREVENT SEVERE ACCIDENTAL CONTAINMENT FAILURES, CORRECTION OF KNOWN HUMAN ENGINEERING DEFICIENCIES IN THE CONTROL ROOM AND THE FINANCIAL QUALIFICATIONS OF SMALL MUNICIPAL CO-OWNERS.
INTERVENORS' ENVIRONMENTAL CLAIMS INCLUDED THE IMPACTS OF SEVERE ACCIDENTS INVOLVING FAILURE OF HYDROGEN CONTROL MEASURES, THE COSTS AND BENEFITS OF THE FACILITY'S OPERATION AND THE IMPACT OF TRANSHIPMENT OF SPENT FUEL FROM DUKE'S OCONEE AND MCGUIRE PLANT TO CATAWBA.
Through a process that can only be characterized as creane legal maneuvering involving the impermissible application of Commission Rules of Practice regarding intervention and the filing of claims for litigation, 10 CFR 2.714, the Licensing Board deprived Palmetto Alliance and Carolina Environmental Study
- Group of the opportunity to be heard on important safety claims cognizable under the Atomic Energy Act, and the Commission's I
' cubstantive safety regulations; and on environmental claims rcquired to be considered under the National Environmental Policy 52
Act (NEPA) in order to reach an " informed decision" regarding the environmental impact of the licensing of the Catawba Nuclear Station.
By such maneuvering the Licensing Board has refused to haar Palmetto and CESG claims regarding 1) acknowledged safety deficiencies in the critical emergency diesel generators required for safe shutdown in the event of an accident; 2) the offectiveness of Catawba's hydrogen control measures to prevent a eevere breach of containment accident; 3) failure to correct identified human engineering deficiencies in the Catawba control room design; 4) the lack of financial qualifications of Catawba's emall municipal co-owner to safely operate and decommission the plant; 5) the adverse environmental impacts of possible severe accidents involving failure of Catawba's hydrogen control maasures; 6) the adverse consideration of the actual expected benefits of the operation at Catawba Nuclear Station as weighed against the cost of the facility and its impact on the human environment; and 7) the adverse environmental impact of Duke's plans to trans ship radioactive spent nuclear fuel from its l
Oconee and McGuire nuclear plants for storage at Catawba including a consideration of need for such action and the existence of less harmful alternatives.
While the Rules of Practice requiring the filing of contentions stating the specific claims which intervenors seek to litigate have been upheld by the l
l Court of Appeals in BPI v. AEC. 502 F.2nd, 424 (1974), even the f
Catawba Licensing Board recognized that misapplication of these l
53 t
rules might impermissibly deprive intervenors of the right to a hearing under the Atomic Energy Act, 42 USC 2239 and be impermissible under the National Environmental Policy Act, p.
102, requiring that environmental questions be considered "to the fullest extent" possible throughout the Commission's review process.
The Licensing Board rejected arguments by the Duke and NRC Staff that the Commission's intervention rules may be applied in such a fashion as to impose a classic " Catch-22" on intervenors:
we either lose our prematurely-filed claims for failure to plead a specific factual basis in the absence of the nscessary licensing information; or, we lose our later claims under the " late-filing" provisions, 10 CFR 2.714(b), for failure to surmount the "five separate" hurdles to "non-timely" contentions.
The Licensing Board observed:
In the main, these criteria are inappropriate for application to a contention that is " late" for reasons wholly beyond the intervenors control.
For example, the last criterion concerns the extent it will
" broaden the issues or delay the proceeding."
An issue based on new information will almost necessarily broaden the issues and it may well delay the proceeding.
But the responsibility for these effects must be borne by_the applicant or the staff for producing a late informational document.
M:morandum and Order (Reflecting Decisions Made Following Prehearing Conference) March 5, 1982, Slip Op. page 7 FN.
6.
Indeed, we think that the applicants' and staff's position on the specificity question, as they would have us apply it here, is of very questionable legality not only under the Atomic Energy Act (as to safety issues) but also the National Environmental Policy Act (NEPA) (as to environmental issues).
...Where, as'in this case, much of the necessary information is not yet available, a Court might well 54
hold, that Section 189(a) requires an equivalent opportunity to frame a contention promptly following the availability of the information.
If that were not allowed, the exercise of the right to a hearing would be impermissibly hindered, or virtually foreclosed, by unreasonable procedural requirement.
NEPA requires that environmental questions be open for consideration to the " fullest extent possible" throughout the agency review process, including the hearing process.
- NEPA, Section 102.
In the landmark Calvert Cliffs decision, the Court invalidated several provisions of the AEC's original implementing rules, viewing the agency's
" crabbed interpretation of NEPA" as a " Mockery of the Act.
Calvert Cliffs Coordinating Committee v. AEC, 449 F.2d 1109 (CADC 1971).
Id. Slip Op.,
pp. 10-11.
At the request of Duke and the NRC Staff, the Licensing Board referred to this Appeal Board for its interpretation of the Commission's intervention and late filing rules.
Upon consideration, this Board acknowledged the impermissible interpretation of the intervention rules identified by the Licensing Board:
Where, however, non-existence or public unavailability of relevant documents made it impossible for a sufficiently specific contention to have been asserted at an earlier date, that factor must be deemed controlling; it is not amenable to being overridden by other factors such as that relating to the broadening of the issues.
As scarcely requires further extended discussion, any different result would countenance placing the Petitioner in a classic " Catch-22" situation -- which, once again, the statute forbids and our regulations cannot be thought to have authorized.
Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and
- 2) ALAB-687, August 19, 1982.
Ironically, upon review, the Commission itself validated just such an impermissible reading of its regulations; 55
t and the imposition of exactly this " Catch-22" situation upon blameless intervenors:
For the reasons discussed below the Appeal Board erred
-in holding that Section 189a of the Atomic Energy Act requires a Licensing-Board to treat the good cause as controlling in ruling on the admissibility of a j
contention that is filed late because it is based i
. solely on information in institutionally unavailable i
licensing-related documents.
i
. Duke Power Company, et. al. (Catawba Nuclear Station, Units-1 and' i
j
- 2) Memorandum and order, CLI-83-19, June 30, 1983.
Thus, the
- Catawba Licensing Board was instructed in no uncertain terms that I
- its concerns for intervenors' hearing rights under the Atomic Energy Act and protection under the National Environmental Policy I
_Act were unjustified.
Palmetto and CESG submit that the Catawba 1
]
- Licensing Board learned its lesson all too well and procecded to burden them with exactly _the impermissible " crabbed interpretation" of these Rules of Practice it had earlier itself cautioned against.
The Licensing Board's own earlier legal analysis _ amply supports Petitioner's claims that the Commission.
2 has transgressed our statutory rights in depriving us of our i
opportunity to be heard on these important safety and environmental claims prior to licensing of the Catawba facility for' operation.
-- l.
The Licensing Board deprived Intervenors of their right to ba heard on timely' claims regarding' safety deficiencies in the I
Catawba emergency diesel generators.
i l
As a result of the NRC Staff's identification of ocrious questions regarding the s.afety of the design and 56
manufacture of the Transamerica Delaval, Inc. (TDI) supplied cmergency diesel generators in place at a number of nuclear power plants under construction, Palmetto and CESG raised a new contention on the record of the safety hearing on December 5, 1993, challenging the assurance that the Catawba TDI-supplied diesel generators ceuld function effectively in their safety related service.
For a procedural history and technical dsscription of these issues current through the date of its filing see, " Palmetto Alliance and Carolina Environmental Study Group Memorandum on Emergency Diesel Generator Questions Referred Pursuant to 10 CFR 2.730(f)", of March 23, 1984, filed with this Appeal Board.
Suffice it to say that the Licensing Board impermissibly applied the very same Catch-22 criteria of the Commission's late-filing rule, 10 CFR 2.714(a), as hurdles to this "non-timely" contention although this diesel generator claim was " late" for reasons concededly beyond the intervenors' control.
In so doing the Licensing Board impermissibly excluded consideration of parts of Petitioner's claims on the grounds that consideration of such claims would likely broaden the issues and
" require a very substantial delay" as well as require substantial expertise in order to make the requisite showing of likely contribution to the development of a sound record on these claims.
TR 12,544 et. seg.
The Licensing Board explicitly concluded that, but for their lateness, Palmetto and CESG's diesel generator claims would have been admissible in some form.
M*morandum and Order (Referring Certain Diesel Generator Issue to 57
the Appeal Board), February 23, 1984, p. 5.
Thus, although Intervenors timely responded to raise claims of safety defects in the critical components at Catawba we-are to be deprived of our opportunity for a hearing under Section 189a of the Atomic Energy Act through the imposition of these additional impermissible burdens.
The Licensing Board excluded the more difficult
" generic" aspects of our claims reasoning that it would be unable to render its safety decision prior to applicants' early May fuel load date if such contentions were to be litigated in this proceeding.
Id. p. 6.
Upon consideration of parties' papers and the Licensing Board's treatment below, this Appeal Board rejected the Licensing Board's suggestions that a generic resolution of these claims was appropriate.
...the issues regarding the reliability of the TDI diesel generators do not appear to be wholly generic.
We can take official notice that at least four different models of TDI diesel generators have been supplied to nuclear power facilities; in~this regard Catawba has DSRV-16 generators, while those at Shorham (one of the other reactors referred to by the Licensing Board) are of model DSRV-48.
- Moreover, insofar as we are aware, the limited operating history of the various generators has not been precisely the same.
In these circumstances, it is far from clear that any substantial advantage would be gained by removing the TDI diesel generator issues from assorted individual licensing proceedings and consolidating them in one existing (or special) lead proceeding.
Duke Power Company, et. al. (Catawba Nuclear Station, Units 1 and 2), ALAB-768, April 17, 1984, Slip Op. at pp. 8-9.
Nevertheless the Licensing Board ultimately declined to permit Palmetto and 58
CESG to be heard on any aspects of the emergency diesel generator enfety claims through the impermissible imposition of late-filing
" hurdles" which it reasoned we had failed to surmount.
On the basis of Duke report of site-specific Catawba Diesel generator problems, the Board admitted its own sua sponte diesel generator contention.
Memorandum and Order of February 27, 1984 at p.
2.
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 Palmetto and CESG, the Licensing Board subsequently allowed us to sponsor and re-admitted the identical contention.
The Board cmphasized that an application of the late-filing criteria and this Appeal Board's decision in Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1177-78, 1180-81 (1983) required it to condition litigation of the contention on the obtaining of expert testimony or assistance in cross-exanination.
19 NRC at 1586, n. 50.
In compliance with this imposed condition, Palmetto and CESG named Dr. Robert Anderson, a mettallurgist, as our diesel generator expert on July 6,
1984.
In a July 20, 1984 Memorandum and Order at pp. 4-5, the Licensing Board required Palmetto and CESG as a condition of further litigation of this contention to either certify that Dr.
Anderson would be physically present to aid in cross-examination at hearing or provide substantial assistance in preparation of a ctatement of technical position.
By our August 1st letter, we informed the Board and parties that we were unable at that time 59
to certify Dr. Anderson's participation because of his conflicting professional commitment as an expert consultant and witness for the intervenors in the Shorham diesel generator litigation - the lead case involving TDI diesel safety issues.
Wo noted our prior objection to the scheduling of hearings in Catawba conflicting with and in advance of the lead Shorham proceeding.
Such scheduling, here, served to deprive us of Dr.
Anderson's expert assistance, and ultimately, our right to a hsaring on these serious diesel generator claims.
A statement of our techincal position was filed with the Board and parties on August 16, 1984 analyzing the reports of Duke and the staff's technical consultant.
While Dr. Anderson's direct assistance was unavailable, we asked the Licensing Board to consider expert testimony sponsored by him and five other oxpert witnesses in the Shoreham proceeding as an offer of proof pursuant to 10 CFR 2.743 (e) of the substance of evidence which wa sought to establish through cross-examination of applicants and staff witnesses on the Catawba diesel generator claims.
The Licensing Board dismissed our diesel generator claims for failure to meet the late filing burden impermissibly imposed upon us.
Memorandum and order of September 4, 1984.
We submit that it was improper to dismiss our diesel generator claim where we should be entitled to making out our case entirely through cross-examination if we choose, WPPSS Nuclear Project No.
3, ALAB 747 18 NRC at 1182, Judge Edles, concurring.
Certainly,.the imposition of no greater burden upon 60
Palmetto and CESG who timely filed our diesel generator claims, 10 permissible consistent with the protecticns of Section 189 (a) of the Acomic Energy Act.
But, however, reasonable or logical that result may have appeared to the Appeal Board it does not adequately take into account the demands of the Atomic Energy Act and the Administrative Procedure Act.
Those statutes provide that wheneve-an agency is required to conduct an adjudicatory hearing on an operating license application, all parties have a right to an opportunity to participate in the resolution of properly contested issues.
Such procedural flexibility as inheres in the system does not go so far as to authorize elimination of that opportunity.
Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit
2.
The Licensing Board has Deprived Palmetto and CESG of the Opportunity for Hearing on Serious Safety Claims of Uncorrected Control Room Design Deficiencies.
Intervenors filed contentions challenging the safety of Duke Power Company's reactor control room design in light of the existence of so-called human factors deficiencies -- flaws which were revealed in the post-Three Mile Island study of reactor operator control room performance involving the so-called man-machine interface.
The Licensing Board initially admitted this contention conditionally, subject to further specification, 15 NRC 566, 581, then subsequently rejected it in light of the Appeal Board's guidance on consideration of the contentions.
16 NRC 1791 at 1795, citing 16 NRC 460, 467.
61
On the basis of a recently published NRC staff Preliminary Draft Safety Evaluation Report transmitted March 9, 1984, Palmetto and CESG timely filed the following contention:
Applicants have failed to demonstrate reasonable assurance that the Catawba Nuclear Station can operate safely since they have failed to adequately meet regulatory requirements for the correction of Human Engineering Deficiencies (HED's) in the Catawba control room design and instrumentation in the absence of sufficient attention to the interaction of human factors and efficiency of operation considerations.
As reflected in the ' Human Engineering Factors Engineering Branch - Detailed Control Room Design Review for Catawba Nuclear Station Unit 1,'
transmitted by cover letter of March 9, 1984, Applicants failed to demonstrate the justification for delaying correction of identified human engineering deficiencies until the end of the first refueling outage, and have failed to provide adequate verification that the implemented corrective actions in fact resolved identified human engineering deficiencies.
Palmetto Alliance and Carolina Environmental Study Group Motion to Re-admit Contentions Regarding Severe Accidents, Control Room Design Deficiencies and Lack of Financial Qualifications, April 12, 1984, p.
5.
In its June 22, 1984 Partial Initial Decision the Licensing Board rejected this control room design contention on the grounds that it was inexcusably late (although originally filed in 1981) and on the grounds of inadequate showing of likely contribution to the record.
Id. p.
5.
The Licensing Board unfairly imposed requirements for cuch a showing of contribution upon Petitioners where a control room design claim was timely filed.
The intervening delay in availability of the documents was due to no fault of the Intervenors.
Nor did the LicensiIng Board provide Intervenors 62 t
with any opportunity to cure whatever inadequacies it perceived in our ability to contribute on this claim.
Such a result dsprives Palmetto Alliance and Carolina Environmental Study Group of the Section 189 a opportunity for a hearing required by the Atomic Energy A'ct.
3.
The Licensing Board Impermissibly Deprived Petitioners of Their Right to be Heard Regarding the Potential for Severe Accidents at Catawba Due to Inadequate Measures for Hydrogen Control In their earliest filing of contentions, Intervenors cought to litigate claims regarding the adequacy of Catawba cystems to prevent severe reactor accidents such as those which
.might occur in the thin-walled ice condenser type containment at Catawba from hydrogen gas explosion due to inadequate hydrogen control measures.
The procedural history of these claims is 4
roflected in our April 12, 1984, Motion to Readmit Contentions, pp. 1-4.
Suffice it to say, here, that at the direction of the Licensing Board, we submitted a series of " plainly credible, Catawba-specific accident scenarios" involving reactor containment failure through inadequate hydrogen control measures.
l Although the NRC staff supported admission of these contentions es sufficiently specific for litigation, the Board rejected them on the grounds that pending Commission rulemaking would consider, 9tnerically, the desirability of additional hydrogen control measures and provide for necessary remedial measures at Catawba 63
prior to licensing this facility.
Such a final rule and cpplication to specific facilities was anticipated by the Board in January or February 1983, a year or more before licensing of Catawba.
"Thus we see no safety justification for litigating the intervenors' hydrogen scenarios in this case, and we are rejecting them as proposed contentions."
16 NRC at 1809-1810.
As with a number of the Commission's so-called " unresolved safety icsues", the Commission's hydrogen control rulemaking remained b
panding as the Catawba licensing proceeding moved to conclusion with no fix in sight for the Catawba facility.
In its June 22,
- 1984, P.I.D.,
the Licensing Board again rejected opur claims regarding hydrogen control and severe accidents, now on the grounds that final Commission action on the rule addressing the same concerns was expected before the anticipated date for full power operation of Catawba.
June 22, 1984, P.I.D. at p. 5.
Only on December 10, 1984, three days after licensing Cetawba, did the Commission finally act to adopt its new general rule requiring future submissions of utility analyses for inproved hydrogen control measures at particularly vulnerable fccilities such as Catawba with its thin shell ice condensor containment, SECY 83-357-A.
The safety of Duke's hydrogen control measures will thus be relegated to approval by the Commission Staff only after plant operation.
Even the Commission's own decisional authority supports the opportunity for Petitioners to participate in the resolution of this serious safety issue.
Wisconsin Electrical Power Company 64
(Point Beach Nuclear Plant, Unit II) CLI 73-4, 6 AEC 6,7 (1973).
HOaring guarantees of the Atomic Energy Act, section 189(a) rcquire no less.
4.
The Commission Has Impermissibly Denied the Petitioners the Right to be Heard on Claims that the Small Municipal Co-Owners of the Catawba Facility are not Financially Oualified to safely Operate, Maintain and Decommission the Plant in Conformance with NRC Rules Palmetto and CESG initially filed a contention challenging the financial qualifications of small municipal and cooperative owners of the Catawba facility.
Though such a contention was conditionally admitted by the Licensing Board as mseting Commission pleading requirements, it was subsequently dismissed upon the adoption by the Commission of a new rule barring consideration of such contentions.
47 F.R.
- 13750, Catawba, 16 NRC 168.
In New England Coalition on Nuclear Pollution v.
NRC, 727 F.2d 1127 (D.C. Cir., 1984) the Court otruck down the commission's attempts to eliminate the financial qualifications requirements from licensing proceedings.
In its June 22, P.I.D.,
at p.
5, the Licensing Board again rejects Pstitioners' financial qualifications contentions on the grounds of the recently adopted Commission Statement of Policy of June.7, 1984, 49 F.R.
24111, once again barring consideration of such financial qualifications issues in operating license cases.
Such 65
cction flies squarely in the face of the court's decision.
As otated clearly in the Separate Views of Commissioner Asselstine:
I The Commission's Policy Statement is both short-sighted and most likely illegal.
The Commission is, in effect, betting that the D.C.
Circuit will not now act to make it very clear that the Commission's "new" financial qualifications rule has indeed been vacated, and that the Commission must re-open all those proceedings in which the rule was used to exclude financial qualifications contentions...
Financial Qualifications Statement of Policy, supra, Slip Op.,
pp. 109-110.
Commissioner Asselstine observes that the Commission's own General Counsel proposed an interim policy, requiring licensing boards to resolve financial qualifications issues in individual cases in an expedious manner. Id.
Such a course is clearly indicated by the Court's decision.
Commissioner A:selstine's further observations were worth noting considering the general claims of Petitioners that they are permissibly d:prived of their opportunity to be heard on these important iesues:
Furthermore, continually taking questionable legal positions can easily lead to a much more searching and critical attitude on the part of reviewing courts, and to adverse decisions that can seriously restrict agency flexibility in dealing with future cases.
Finally, the Commission's approach simply reinforces the belief of many that this Agency will go to any lengths to deny members of the public a fair opportunity to raise issues in our licensing proceedings, and have those issues fully and fairly litigated.
66
~
i Id.
The Commission has subsequently published a new final rule 49 FR 35747, September 12, 1984, again purporting to exclude i
. financial qualification issues from consideration.
Palmetto and CESG maintain that this "new" rule is invalid and that our contention should be admitted for litigation.
5.
Commission Licensing Board Refused to Provide Intervenors an Opportunity to be Heard on Their Claims that the Environmental Costs Associated with Licensing of the Catawba Facility Had Not Been Adequately Considered, as Required by the National j
Environmental Policy Act The Licensing Board itself acknowledged in its March 5, 1982 Memorandum and Order (Reflecting Decisions Made Following Pre-hearing Conference) that the " crabbed interpretations of NEPA" urged by applicants and staff in the consideration of our contentions "makes a mockery of the Act," by depriving Palmetto and CESG of the opportunity to ensure the " fullest possible consideration of the environment" in reaching the decision on the proposed licensing of the Catawba Nuclear Station.
The rejection of the Petitioners' environmental contentions produce such a result requiring reversal of the Licensing Board's decision in fcvor of licensing Catawba. Caivert Cliffs Co-ordinating Committee v. AEC, 449 F.2d.1109 (CADC, 1971).
The Catawba Licensing Board rejected three important d
environmental claims of Intervenors, thereby impermissibly i
limiting the environmental consideration required in order to 67
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l rcach a valid decision regarding licensing.
The Licensing Board oxcluded our contention seeking to require an environmental i
cnalysis of severe accidents due to failure of Catawba's ice condenser containment through ineffective hydrogen control m;asures.
As a corrollary to its rejection of Petitioners' contentions regarding the safety adequacy of these measures, the Licensing Board concluded that the detailed environmental consideration of this issue was best left to the Agency's long-panding rulemaking on the unresolved safety issue regarding hydrogen control.
16 NRC 1797-8.
As pointed out above, such Commission consideration was not accomplished prior to licensing of the Catawba Nuclear Station; nor did the Commission render any cuch detailed consideration of the environmental impacts of the failure of such systems.
Indeed, the statement of consideration accompanying the rule disclaims any enviornmental impact consideration:
That pursuant to $ 51.5(d) of Part 51 of the commission's regulations, neither an enviornmental impact statement nor a negative declaration need be prepared in connection with the amendment since the amendment is nonsubstantive and insignificant from the standpoint of environmental impact.
SECY 83-357A, Para. 2c.
In any event, the National Environmental Policy Act requires consideration of such environmental impact
- with regard to this specific licensing action.
A case by case enclysis is clearly required under the NEPA implementing rcgulations, 40 C.F.R.,
Section 15.02.22, given the Catawba-cp cific hydrogen control concerns related to its thin-walled ice condensor containment site meterology, population and accident 68
concerns.
The analysis of such low probability, but extreme consequences, events must be evaluated in conformity with NEPA.
The Catawba Licensing Board rejected Intervenors' cnvironmental contentions w".tich sought to require thorough cnvironmental impact analysis of the costs and benefits, as well so the consideration of more environmentally-sound alternatives to Duke Power Company's proposals to trans-ship radioactive spent fuel from its Oconee and McGuire Nuclear Stations through such populated areas as the City of Charlotte, North Carolina, to its Catawba plant for longterm storage.
The Licensing Board concluded that the Commission's Summary Table S-4, " Environmental Impact of Transportation on Fuel and Waste to and from One Light W2ter-cooled Nuclear Power Plant," conclusively established that tho environmental impact of Duke's proposed trans-shipments were
(
" insignificant."
The Commission's environmental regulations 10 C.F.R.
Section 51.20(g)(1) provide, however, that "if such transportation does not fall within the scope of this paragraph, a
full description and detailed analysis of the-environmental offects of such transportation and, as the contribution of such offects to the environmental costs of licensing the nuclear power reactor, the values determined by such analyses for the onvironmental impact under normal conditions of transport and the cnvironmental risk from accidents in transport" be evaluated in licensing.
"However, the provision clearly is limited to i
transport of irradiated fuel from the reactor to a fuel reprocessing plant and does not, by its own terms, apply he're to 69
Duke's unique " cascade plan" for intermediate spent fuel chipments between its reactors for temporary storage.
On its vary face, Duke's plan raises questions of unnecessary cnvironmental impact which the Licensing Board erroneously fails to evaluate.
17 NRC 291 (1983).
This Appeal Board has assured uo of just such an evaluation now:
Should Duke (pursuing " Cascade Plan") seek at some a
future date permission to make further spent fuel shipments between its facilities, the request will have to receive a separate environmental assessment.
That assessment will not be influenced by, let alone turn upon, how the present application might have fared.
Rather, the initial inquiry will be into whether those further shipments will have a significant environmental effect.
Should that question be answered affirmatively, a full environmental impact statement will be required in order to comply with the Section 102(2)(C) mandate.
In that statement, the staff will, of course, have to identify and weigh the benefits and costs of the proposal in the context of the overall waste disposal situation then obtaining.
In doing so, it might well conclude, upon a consideration of all factors, that the proposed additional shipments are an unacceptable solution.
Duke Power Company (Amendment to Materials License SNM-1773-Transportation of Spent Fuel from Oconee Nuclear Station in Storage at McGuire Nuclear Station) ALAB-651, 14 NRC 307, 315 (1981).
Consistent with NEPA, the Licensing Board must consider the need for such a hazardous spent fuel transshipment scheme, its full environmental impact; as well as the availability of environmentally less harmful alternatives.
Finally, the Commission's Licensing Board applied the then recently adopted commission rule barring consideration of "need for power", or " alternative energy" matters in nuclear power plant operating license proceedings.
10 C.F.R.
Section 70
. m-m
Sl.53(c).
The Licensing Board reasoned that each of Intervenors' l
claims which related to either the need for Catawba capacity or the " costs" of Catawba electricity were irrelevant to the NEPA ovaluation of the decision to license Catawba for operations.
The Board viewed the construction investment costs at Catawba as cunk, therefore, irretrievably committed the balance in favor of ths licensing decision.
16 NRC 1801.
Petitioners dispute the opplication of the Commission's need for power rule to exclude-these contentions.
Moreover, exclusion of the most obvious
" costs" of the Catawba facility -- the cost of the electricity
\\
which it will produce - permits only the most " crabbed" ovaluation of environmental impact of the facility.
Such a result clearly in inconsistent with the court's analysis in Calvert Cliffs, Supra.
Failure by the Licensing Board to adequately consider tha environmental impacts of licensing Catawba as required by NEPA compels reversal.
CONCLUSION For the foregoing reasons, Palmetto Alliance and Carolina Environmental Study Group urge that the Partial Initial D:cisions of the Atomic Safety-and Licensing Boards herein cppealed from be reversed and that these proceedings be remanded to those Boards for further consideration consistant with the positions urged herein.
71
January 9, 1985 sp ctful y submitted, 1
l4 d
Robert GtRZd, Esquire 2135 1/2 Devirae Street Columbia, South Carolina 29205 (803) 254-8132 (803) 252-1419 Attorney for Palmetto Alliance Jess.e L.
Riley 854 llenley Place Charlotte, North Carolina (704) 375-4342 Carolina Environmental Study Group I
I E
72 ii i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
)
Docket Nos. 50-413
)
414 (Catawba Nuclear Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the Brief of Appellants in the above-catpioned proceeding have been served, on the following by deposit in the United States mail, first class this 9th day of January 1985.
Alan S. Rosenthal, Chairman Richard P. Wilson, Esq.
Administrativo Judge Assistant Attorney General Atomic Safety and Licensing P.
O.
Box 11549 Appeal Board Columbia, SC 29211 U.
S.
Nuclear Regulatory Commission George E. Johnson, Esq.
Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Thomas S.
Moore Administrative Judge Michael J.
McGarry, III, Esq.
l Atomic Safety and Licensing Debevoise and Liberman Appeal Board 1200 17th Street, NW U.S. Nuclear Regulatory Washington, DC 20036 Commission Washington, DC 20555 i
Howard A. Wilber Administrative Judge Atomic Safety and Licensing Appeal Board
[l U.S. Nuclear Regulatory
[f)
}-
(ld
,[
Commission Rober[hV1,
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I Washington, DC 20555 t Ggilp, Esq.
Attorney Mr Palmetto Alliance J