ML20128B893
| ML20128B893 | |
| Person / Time | |
|---|---|
| Issue date: | 05/31/1985 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V21-N03, NUREG-750, NUREG-750-V21-N3, NUDOCS 8505280104 | |
| Download: ML20128B893 (78) | |
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NUREG-0750 Vol. 21, No. 3 Pages 471-559 Available from NRC/GPO Sales Program S""d""m"" "' fe!""lT"e * ' COMMISSION ISSUANCES Washington, D.C. 20402 A year's subscription consists of 12 softbound issues, 4 indexes, and 2 hardbound editions for this publication. March 1985 Single copies of this publication ' are available from National Technical information Service, Springfield, VA 22161 Microfiche of single copies are available from NRC/GPO Sales Program Washington, D.C. 20555 ! This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Apper,I Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM). The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dent legal significance. i GULATORY d6 l Errors in this publication may be reported to Vicki E. Yanez, Division of ( Technic:1 Information and Document Control, Office of Administration, i U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 Prepared by the Division of Technical Information and Document Control, (301/492 8925) , Off. ice of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (301/492-8925) e , T '
CONTENTS Issuance of the Nuclear Regulatory Commission LOUISlANA POWER & LIGIIT COMPANY (Waterford Steam Electric Station, Unit 3) Docket 50-382-OL MEMORANDUM AND ORDER, COMMISSIONERS CLI-85-3, March 15,1985 . . .. .. 471
" no, Chairman '
ho s o Issuances of the Atomic Safety and Licensing Appeal Boards James K. Asselstine Frederick M. Bernthal CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. Lando W. Zech, Jr. (Perry Nuclear Power Plant, Units I and 2) Dockets 50-440-OL, 50-441-OL DECISION, ALAB-802, March 26,1985. . . . . 490 LOUISlANA POWER & LIGitT COMPANY
. (Waterford Steam Electric Station, Unit 3)
Docket 50-382-OL MEMORANDUM AND ORDER,- ALAB-801, March 22,1985. . . . . . 479 issuances of the Atomie Safety and Licensing floards t IlOUSTON LIGilTING AND POWER COMPANY, et al. (South Texas Project, Units I and 2) Dockets STN 50-498-OL, STN 50-499-OL Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeal Panel - (ASLBP No. 79-421-07-OL) B. Pau: Cotter, Chairman, Atomic Safety and Licensing Board Panel MEMORANDUM
- LBP-85-8, March 15,1985. 516 IlOUSTON LIGitTING AND POWER COMPANY, et al.
(South Texas Project, Units I and 2) i Dockets STN 50-498-OL, STN 50-499-OL (ASLDP No. 79-421-07-OL) l MEMORANDUM AND ORDER,
, LBP-85-9, March 29,1985. . . 524 I
s t l lii f.
UNITED STATES DEPARTMENT OF ENERGY PROJECF MANAGEMENT CORPORATION TENNESSEE VALLEY AUTilORITY (Clinch River Breeder Reactor Plant) Docket 50-537.CP (ASLBP No. 75-291-12-CP) MEMORANDUM AND ORDER, (Q@@]$$lQM L8P-85 7, March II,1985. 507 ISSuanCBS Issuances of Denials of Directors' Decisions PUBLIC SERVICE COMPANY OF NEW IIAMPSillRE, et al. (Seabrook Station, Units I and 2) Dockets 50-443, 50-444 DIRECTOR'S DECISION UNDER 10 C.F.R. ( 2.206, DD-85-3, March 18,1985 , ..
. 533 Tile DETROIT EDISON COMPANY, et al.
(Enrico Fermi Atomic Power Plant, Unit 2) Docket 50-341 l DIRECTOR'S DECISION UNDER 10 C.F.R. s 2.206, DD.85-4, March 20, I985 - 546
.f.
1 iv 8
Cite as 21 NRC 471 (1985) CLI-C5-3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: l Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr. In the Matter of Docket No. 50-382-OL LOUISIANA POWER & LIGHT COMPANY (Waterford Steam Electric Station, Unit 3) March 15,1985 The Commission authorizes the issuance to the Applicant of a full-power operating license for the Waterford Steam Electric Station, Unit
- 3. At the same time it declines to stay the effectiveness of its Decision for a 2-week period as requested by Intervenors. Issuance of the Deci-sion is without prejudice to the Intervenors' motions to reopen that are currently before the Atomic Safety and Licensing Appeal Board.
OPERATING LICENSE: CRITERI A The standard for an operating licensing decision is whether there is reasonable assurance of public health and safety to allow plant opera-tion, either for the full licensing term or until additional analysis is completed that would provide additional assurance for the full-term license. 1 871
MEMORANDUM AND ORDER ALAB-753' 18 NRC 1321 (1983). Ilowevcr, joint intervenors' motion to amend and supplement their motion to reopen on the basemat issue was received the same day ALAB-753 was issued.' In response, the INTRODUCTION Appeal Board requested the NRC Staff to provide additionalinformation on the issue. ALAB-786,20 NRC 1087 (1984). That information, which For the reasons discussed below, the Nuclear Regulatory Commission is described below, has been provided. The basemat motion is still pend-(",NRC" or ing before the Appeal Board. this proceedm_"g provides the necessary basis for authorizing the issuanceCommission") has determine In the meantime, on February , , to Louisiana Power and Light Company ("LP&L") of a full-power largely based on allegations, to reopen the hearing on quality assuran e operating license for the Waterford Steam Electric Station, Unit 3 (QA) issues. On April 11, 1984, by Memorandum and Order unpu ("Waterford"). This Decision is without prejudice to the motions to lished), the Appeal Board denied the motion but stated that the interse-reopen which have been filed by the Joint Intervenors and which are nors were free to file another motion if the hearing was reopene on currently pending before the Atomic Safety and Licensing Appeal Board other grounds prior to plant operation. Subsequently on November , (" Appeal Board"). Should the Appeal Board ultimately decide to reopen 1984, the intervenors moved to reopen on three QA contentions: the record in this proceeding, it would, undoubtedly, also address the ef-failure to maintain an adequate QA program during construction fects of such a decision on the antinuing viability of the full-power lack of basic character and competence by Louisiana Power an g generating license, and we would have an opportunity to review that de. , (LP&L) to operate Waterford safely; and (3) failure of the NR to pro-termination. In the interim as explained below, we have determined that vide the necessary degree of confider. e that the plant has been con-the pending motions do not support a stay of our authorization of a full-power operating license. structed properly and can be operated safely. That QA motion is a so still pending before the Appeal Board. STATUS OF ADJUDICATION BASEM AT CRACKING The first partial initial decision (PID) - on synergistic (radiation and In July 1977, a number of cracks were identified by the Applicant at atmospheric pollutants) health effects and on all but or;e aspect of the top of the basemat within the ringwall for the containment structure. emergency preparedness - was issued by the Licensing Board on The ground water seepage rate was low, just enough to show the cracks November 3,1982. LBP-82-100,16 NRC 1550 (1982), as amended, and to moisten surrounding concrete. The cracks were sealed with LBP-82-Il2,16 NRC lir01 (1982). In ALAB-732, on June 29, 1983, epoxy grout as approved by NRC. In May 1983, an NRC inspector the Appeal Board completed its merits review on this PID and affirmed found small amounts of water seepage on the Reactor Auxiliary Building the Licensing Board's findings.17 NRC 1076 (1983). The Commission part of the basemat, but no cracks were visible. Ilowever, a special NRC let the Appeal Board decision stand. inquiry team was set up to investigate concerns about cracking and,in a A second and final PID on the offsite emergency planning brochure report on July 14,1983, recommended that LP&L obtam "an independ-was issued on May 26,1983. LBP-83-27,17 NRC 949 (1983). No peti- ent engineering evaluation of the common basemat cracking and seepage lions for review were filed; the Appeal Board conducted its usual sua matters." liarstead Engineering Associates, Inc., hired by the Applicant sponte review. During that time, Joint Intervenors filed with Appeal to evaluate the cracking and associated moisture, submitted a report in Board two motions to reopen the hearing on synergism and basemar September 1983, concluding that " hairline" cracking was expected in cracking. In particular, Joint Intervenors moved to reopen the hearings reinforced concrete structures and is generally caused by tensile forces, on renewed allegations regarding basemat cracks and the water found seeping through them - issues which had been resolved previously in the Applicant's favor by the Licensing Board. LBP-81-48,14 NRC 877 (198I). On December 9,1983, Ihe Appeal Board denied Ihe motions to i rne comnumon n.s oeiernunca noiio review At As-75L This d . punaison as without prejudwe io reopen, and completed its review of the Licensing Board's final decision. the ^ppe,i so.ro s curreni consatersiion of the rauhaa5 'a 'copea-472 i e i _.m__
drying shrinkage, thermal gradients and settlement. Th2 r: port conclud-now considers this issue closed, end has conclud:d that the basemit ed thrt the cracks wers oflittle concern to the structural adequacy of the basemat and that there was no evidence of and little potential for corro- cracks do not raise a significant safety issue. sion of the steel reinforcing bars (rebar). The Staff agreed with the liar- In Supplemental Safety Evaluation Report (SSER) 7 and SSER 9, Staff provided evidence that the foundation soils, concrete and rebar stead Report. Ilowever, recognizing the possibility that the loads on the meet their design capacities. Moreover, documentation establishes that, basemat could change over the course of time, the Staff required the Ap-even though there was a breakdown in the QA program, adequate m-plicant to establish a surveillance program to assure the continuing in-tegrity of the mat. spection and quality controls were applied subsequently. Also, the NDT testing and the Cornell tests provide some additional assurance of base-In April 1984, the NRC initiated another review of the basemat issue mat r.dequacy. The Staff, consistent with the recommendation of its con-further to assure itself that no significant safety issues had been over-sultants and with commitments by the Applicant (SSER 9, at A-121 and looked with regard to the design implications of basemat cracking at A-122), has recommended that Waterford-3 be licensed with two con-Waterford. The Staff hired Robert E. Philleo, an independent consulting firmatory conditions - a basemat cracking surveillance program and engineer with outstanding credentials in concrete construction, to re-additional confirmatory analyses of basemat structural strength. spond to QA concerns about basemat construction. The Staff required the Applicant to conduct additional studies which involved nondestruc-tive testing (NDT), i.e., sonar analyses, to better characterize the cracks ASSESSM ENT and additional analytical analyses of the basemat structural capability. Staffs Brookhaven National Laboratory (BNL) and City University of Under these circumstances, the Commission believes that ti.ere is no New York (CUNY) consultants conducted laboratory studies (breaking d to defer full-power operation pending the Appeal Board's dispos,-t of concrete beams) to provide additional confirmation of the adequacy ((n of the pending motion to reopen on basemat issues. of the basemat. The Applicant's prime contractor, Ebasco Services, Inc., The standard for a licensing decision is whether there is reasonable provided analyses of shear slippage associated with cracked concret assurance of public health and safety to allow plant operation, either for under dynamic loading. Ebasco also referenced Cornell University tests the full licensing term or until additional analysis is completed that on slippage along cracks in concrete under dynamic loading conditions would provide additional assurance for the full-term license. The current as providing further support of the conclusion that the basemat was ade- record has provided a reasonable basis to conclude that the plant can be quate to resist earthquakes. operated safely at full power, pending resolution of the issues currently Although Mr. Philleo did not unqualifiedly endorse all of the technical before the Appeal Board and we so find. Confirmatory analyses to which details of the NDT analysis, he found that LP&L's NDT studies support- Ihe Applicant has committed will address the response of the plant to a ed the StalT conclusions. Both the Staff and BNL also found that the obability design basis seismic event and the possibility oflonger-NDT results substantiated their conclusions. Ilowever, two Staff mem- eter oration of basemat structural capability. bers. Drs. John S. Ma and John Chen dilTered from the NRC Staff majority opinion on technical details of the causes and possible conse-quences of basemat cracks. QUALITY ASSURANCE After reviewing the final submittals by the Applicant in November, the Statiand its consultants, taking into account the oilTering views of The Joint Intervenors alleged on November 9,1984, that the break-Drs. Ma and Chen, concluded that there remains no question as to the down of QA throughout Waterford's construction prevents reasonable assurance that the plant has been constructed in accordance with NRC adequacy of the soil backfill and basemat to resist all imposed loads, including seismic elTects. Ilowever, at the recommendation of BNL, the requirements and that the public health and safety can be protected. In Staff has identified areas in which further analysis might be useful. The support of this contention, the Joint Intervenors have submitted specilic StalT has determined that, even in the absence of further analysis, Water- allegations and documentation derived largely from docket files, allega-ford is a safe facility even under design basis earthquake loads. The Staff tions by three anonymous persons, and magazine stones. Intervenors further alleged that LP&L's lack of character and competence to operate a nuclear plant is shown by the mere fact that the Office of Investigation 474 475
investigated falsification of r; cords end harassment of Quality Assur- sought end order d by a court the :tility c n r y e s pro ss enc-/ Quality Control personnel, and by alleged misstatements of LP&L reduce powe[ to the financial community and the Securities and Exchange Commission day of delay in commercial operation of Waterford will cost the Applicant regarding plant status. Joint Intervenors also amended the basemat and the public it serve I mi ion dollars cracking motion based on a magazine article alleging extensive quality Interveno s nee against these facts. Nor have assurance problems and falsification of information regarding basemat e Commission with a formal request to stay Waterford i fuI wer operation. Thus, they have not offered to the Commission I reh 1984, the Staff initiated a broad inquiry by an NRC special any legal arguments which woul supp stay n hy review task force to address over 350 such allegations, and other open us aware of any sign 8 h e items from the Construction Assessment Team (" CAT") inspection on to resolve with regar quality assurance and basemat cracking. The task force assessed the ACC f 8Y Order is being made immediately elTective by the validity of the allegations, their safety significance and any generic impli. . Commission. ' cations, as well as Applicant's responses to CAT inspection findings. In SSERs 7 and 9, the Staff concluded that nothing in the allegations war-ranted delaying full-power operation. CONCLUSION Solely for the purposes of determining whether the pending motions For the reasons set out above, the Commission finds that the Direc-warrant the Commission's staying issuance of a full-power operating license for Waterford, Joint Intervenors' motions and supporting argu- tor, Nuclear Reactor Regulation, may issue the full-power operating ments, Staff and Applicant responses, and the StalTsafety evaluations as- license for Waterford, Unit 3. sociated with the hundreds of allegations, particularly those related to Commissioner Asselstine dissents from this Order. QA and the basemat, have been reviewed. Under the circumstances de- 11 is so ORDERED. scribed above, we find no reason to stay authorization of a full-power . operating license. Of course, this determination is without prejudice to For the Commission the Appeal Board's substantive decision on the merits of the pending motion to reopen the record on these issues. JOllN C. IlOYLE Assistant Secretary of the REQUEST TO STAY EFFECTIVENESS OF WATERFORD'S Commission FULL-POWER LICENSE By letters dated Afarch 8 and 11,1985, Intervenors have requested a Dated at Washington, D.C., 2-week stay of the effectiveness of this Order. The utility, by letters of this 15th day of hlarch 1985. h1 arch 12 and 14,1985, has opposed this request. In our view, the utility has offered persuasive reasons why the Com-mission should not delay the clTectiveness of this Order. Ascension to full power is a gradual process. During the first 12 days of this process, Waterford will not exceed 20% of its full-power level of operation. The public health and safety risks of thesc low levels of power are far less than the theoretical risks of full-power operation. Nor is the level of con-tamination which results from such levels of operation significantly dif-ferent than those associated with, and already reached as a result of, Waterford's low-power operation. hforeoser, in the event that a stay is 476 477
Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman Dr. W. Reed Johnson Thomas S. Moore Christine N. Kohl C Gary J. Edles Dr. Reginald L. Gotchy Howard A. Wilber l l L ,_ ;: -= . - -- - - -
Cits ta 21 NRC 479 (1985) ALAO-801 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: Christine N. Kohl, Chairman Dr. W. Reed Johnson Howard A.Wilber in the Matter of Docket No. 50-382-OL LOUISIANA POWER & LIGHT COMPANY (Waterford Steam Electric Station, Unit 3) March 22,1985 Finding the existing record inadequate on which to rule on a motion to reopen made by intervenors, the Appeal Board defers ruling on the motion. With limited exception, it strikes the brief and affidavits submit-ted by the NRC staffin opposition to the motion and calls for additional information from the staff and the applicant. RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES It is each party's job - applicant, intervenor, and staff alike - to pre-sent its respective position in an intelligible form to the decisionmaker. An appeal board is neither advocate nor clerk for any party that appears before it.
- RULES OF PRAT".FICE: RESPONSIBILITIES OF PARTIES An appeal board is required to state "the reasons or basis" for its con-clusions. See Administrative Procedure Act, 5 U.S.C. % 557(c). It 479
- - ~
ust work i e , the le gs a her i L m Ie u h record - is grossly inadequate On November 8,1984, Joint Intervenors filed their fifth motion to RULES OF PRACTICE: RESPONSIBILITIES OF COUNSEL . seek a hearing on three proposed contentions. One alleges a breakdown Legal counsel - through whom a party expresses its position - must in applicant Louisiana Power & Light Company's (LP&L) construction bear a large responsibility for the form and quality of submissions made quality assurance (QA) program. The second claims that LP&L does not m licensing proceedmgs. have the character and competence necessary to operate the Waterford facility in a safe manner. The third asserts that the NRC staft's inspec-
"# " E* * * ""' " " #E RULES OF PRACTICE: RESPONSIBILITIES OF STAFF construction deficiencies at Waterford have been corrected and that the The NRC staff's conduct and contribution must conform to the same plant can be operated safely. Joint Intervenors have submitted over 60 standards applicable to other parties. documents and made scores of more specific charges in asserted support of their motion. .LP&L and the staff have filed reply briefs, affidavits,
* #* " E "'
RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES After lengthy consideration of the motion, we are unable to rule on
,Where a party (particularly, where represented by legal counsel) sub. the entirety of it on the basis of the existing record, While we have mits a helter-skelter collection of materials, it must live with the conse, found that man, of Joint Intervenors' charges are unsupported or pro-4uences. See Pacv7c Gas and Electric Co. (Diablo Canyon Nuclear Power vide no basis for reopening this record,2 some of the more serious re-I,lant, Units I and 2), ALAB-775,19 NRC 1361,1368 n.22 (1984). maining ones have not been addressed adequately in the responsive pleadings, especially that of the stalT.3 We therefore call for additional in-formation from the staff and LP&L and offer Joint Intervenors the op-A PPEAR ANCES portunity to respond to these submissions.*
Lynne Bernabel and George Shohet, Washington, D.C., for joint inter- I* venors Oystershell Alliance and Save Our Wetlands, Inc. Bruce }V. Churchill, Dean D. Aulick, and Alan D. Wasserman' Wash- * *" '" #"## *
** * ' ##"
- E Ington, D.C., for applicant Louisiana Power & Light Co*P "Y- hibits submitted in support of a particular charge are incomprehensible Bernard M. Bordenick and Sherwin E. Turk for the Nuclear Regulatory Commission stafT. I We ruled on two or these monons in ALAB.753,18 NRC 1321,1323-31 (1983),and on another in our order or r'ebruary28,1984 (unpublished). A rourth,concermng the concrete beemat on whwh the Waterrord racility rests, as still under consideration.
Two adduaorial monons are also pending before us. one is Jomt Intervenors' nwuon for a protectne order (riled with the November 8 motion to reopen); the other is joint Intervenors' January 25,1985, request ror leave to reply to applicant's and the NRC stales responses to the November 8 nmuon to reopen. We rule on the latter at pp. 487-88, m/ra. Two more monons Gled by Joint Iniervenors were re. cently dnposed or an our order or March 14,1985 (unpubhshed). 2 ser farvic Gas saJ Ekctrar Co. (Diablo Canyon Nuclear Power Plant, Umas I and 2), ALAB-598, il NRC 876, 879 (1980), ad, Cll-82 39,16 NRC 1712,171415 (1982); and d. AL AB 775,19 NRC 1361,1365-67 (1984), rur the requerements that must be sann6cd ror reopemng on new mues. 3 Unrortunately, this as not the Grat such escauon en the course or this protracted proceeding. Scr AL AB-786,20 NRc 1087,1091-95 (1984). 4 In ALAB-792, 20 NRC 1585 (1984), abrved ALAB-797,21 NRC 6 (1985), we round that we had jurndicuon to conskler the enurely or Jumi inicrvenors' motion.
# 481
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(for a vrriety of rzsons), or irr: levant to the charg;, or both. In other they are not rectly rfridavits et til, es n.Nat term is generally understood instances, the arguments have no appar:nt relation to the point being in legal partane:. They are signed and nocrizcd but the " substance of pressed. Other charges that appear to have at least limited validity have the statements for the most part is more couc, such as "A-229, A-48, been ef*ectively refuted by LP&L.5 But broad questions raised principally A-306g," with an occasional accompanying cryptic comment, or a terse by Joint Intervenors' first proposed contention - a!!eging a breakdown memorandum between two membets of the staff. That code generally in construction QA - appear on their face to have some merit. These refers us in turn to Supplement No. 7 to the stafrs Safety Evaluation are important matters that could bear directly on plant safety. LP&L's re- Report for Waterford (SSER-7). This time-consuming, convoluted, and sponse to these charges is similarly persuasive but necessarily self- confusing process must be repeated at least once for each of the Joint in-serving. Thus, we regard thorough staff input as essential to our resolu- tervenors' charges. tion of such issues. Therein lies the problem. The staffs reply in opposi- Overall, in both format and content, this material amounts to nothing tion to joint Intervenors' motion (both the brief and the affidavits) is so more than individuals' worksheets. They have been gathered up and confusing and internally inconsistent that we are unable to make a rea- Gled as a formal submission in a legal proceeding, leavmg it to us and soned judgment on whether to reopen. See ALAB-786, supra note 3, the parties to put the pieces of the puzzle together. This is wholly unac-20 NRC at 1091. Indeed, the deficiency of the staff response compels us ceptable. It is each party's job - applicant, intervenor, and staff alike - to strike all but a small portion ofit. to present its respective position in an intelligible form to the decision-To be sure, the staffs legal brief addresses seristim the criteria that maker. We are neither advocate nor clerk for any party that appears Joint Intervenors' motion must satisfy in order to obtain reopening of before us. We are obliged, however, to state "the reasons or basis for the record. See note 2, supra. The staffs position on the most important our conclusions. See Administrative Procedure Act, 5 U.S.C. criterion from the standpoint of plant safety - whether the motion { 557(c). We cannot properly fulfill this responsibility if the raw material raises a significant safety issue - is based on seven attached affidavits. with which we must work - i.e., the pleadings and other matter that in the stalTs view, these affidavits fully address the issues raised by the make up the record - is in such an inchoate condition. motion to reopen, show that they have been satisfactorily resolved, and Despite this difficulty with the matrix format of the staffs presenta-demonstrate their lack of safety significance. NRC Staffs Response to tion, we made a serious effort at cryptography to learn the underlying Joint Intervenors' Motion to Reopen (Dec. 21,1984) at 8 (hereafter, basis for the staff s conclusion that "the joint intervenors' motion does Staff Brief). But as we show below, these affidavits in large measure not contain any significant new safety issues that have not been pre, neither fully address nor satisfactorily resolve the issues. To the extent viously reviewed by the staff and brought to a satisfactory resolution. the staffs brief relies on the affidavits, it sulTers from the same infirmity AfGdavit of Dennis M. Crutchfield (Dec 21,1984) at 7. We found this and is of no value to our consideration. to be a largely futile endeavor. For, apart from problems associated with As a general matter, instead of a readable narrative that addresses in its form, as discussed above, the staff's submission is of negligible value sequence the myriad charges in Joint Intervenors' motion, the staff has for at least seven reasons. provided us with a " matrix" that purports to tell us where to find the First, the matrix and affidavits themselves are inaccurate and sloppy., stafTs response (s) to each of the charges. The matrix is keyed to six sub- Second, in many instances no information at all (not even a cross-refer-ject matter categories (quality assurance, civil / structural, etc.). For ence to another source) can be found in the affidav,t i identified by the example, the answer for charge A(1)(a)(i) can be found in "QA," "Civ- matrix.' Third, documents (some of which are described as m draft ) il/Struct.," and "RIV Insp. Activ." The code for the matrix tells us that that have not been submitted to us and therefore are not part of this team leaders J. Ilarrison, R. Shewmaker, and W. Crossman are responsi- record are relied upon and cross-referenced.8 Fourth, entire, large docu-ble for these categories and that their alTidavits can be found in Attach-ments 2,3, and 7. After turning to the affidavits, however, it is apparent 6 Sec. c g . A(l Hb). A(!)(mi. A0)(4) Iml. Bt II. BI28
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_ 75ce, e g.. AU HaHi), AH HJ), AOHb). A(4)(c). A(6Hb). A(6Hc), A(7Ha). DO). BO)(CI
- shewmaker; A(lHp). B0) .Cronman.
3 our aate decmon on the monon to reopen, or coune. =di enplam mure rully our scawns ror ac- 8See eg AOHm), AO Hn). A(2)(a). A(2ddI. AI2 MCI. AOHg), AOH4), B(6) . (,rowman. ceptmg ar rejectmg - as the cnc may bc - Joma intervenors' numeruuuharget ggy,'C D - staiT Bnerat 15,17. 482 483
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did not rke acuon to implemeza the recommendahons of its consult:nts tnd the - In uew of the apparintly in equate amplement: tion of t_ PAL's QA progr m NRC to incres.c its manpower and involsement with the Clat rford 3 Project. dunng the course of construction, what b the basis for the siclT conclusion LP&Cs Ldura to etTecuvely emplement their QA Prc; rim has potential safety sig. (ibd) that LP (L's correcuve actions rnd the modi 0citions to itt QA F:c;r:m, na6cance and the inadequate management controls whnh led to this QA breakdown, .together with proper management attention and oversight, and attention to thatel generic impheations on the queshon of management's abihty to safety operate detail, provide reasonable assurance that LPAL can safely operate and property the Waterford 3 facdity. Other NRC Task li'lorce undings identified in t;as SSER manage" Waterford? are further mdications of the QA program breakdown between EBASCO and Mercury and are indicauve of a breakdown of the t.P&L QA program. e strff should also focus particular attention on Joint Intervenors' SSER-7 at 100. In Issue 23 of the Eisenhut Letter, the staff requested cha es A(1)(b) A(1)(h), A(1)(p), A(10)(e), A(12)(a), A(12)(b), A{i ){c) B(4)' and B(5).o LP&L, if it chooses, may supplement its ex-LP&L to address this situation. LP&L has done so in three separate sub- . on these matters. Joint Intervenors as well are provided missions, dated September 28, October 31, and November 21,1984. See 'S 8 SSER-9 at 84.'* Despite all the deficiencies in LP&L's QA program dis- an opponunW m msWnd, but must limit their comments to the argu-cussed in SSER-7/A-48, the stalT addresses them in less than one page ments mau W de Md WL and concludes that LP&L's corrective action was " comprehensive" and its revised QA program is " sound." SSER-9 at 85. That may well be the Ill-case, but SSER-9 utterly fails to provide the elaboration necessary to justify such a favorable assessment just months after the damning lan- On January 25, 1985, joint Intervenors moved f, a e to reply to guage of SSER-7/A-48. the staffs and applicant's responses to the motion to icopen. The os-This informational void is all the more significant because the staff tensible purpose of the reply is to correct " misstatements and misleading relied on SSER-7/A-48 no fewer than 27 times in attempting to respond statements" by LP&L and the stalT. Joint Intervenors' Motion for Leave to Joint Intervenors' charges in their motion to reopen. As we have to File Reply (Jan. 25,1985) at 1. We grant the motion in part. seen, A-48 concludes that the breakdown in LP&L's QA program "has Joint Intervenors first argue that the staff's brief should be rejected be-potential safety significance" - a conclusion squarely at odds with the cause portions ofit are virtually identical to that of LP&L. In their view, staffs overall position on the motion to reopen. SSER-7 at 100. And this shows the staff s lack of independent thought. Joint Intervenors little reliance can be placed on the subsequent favorable staff conclusion also claim that there are misstatements in certain of the staffs affidavits. on this subject in SSER-9/ Issue 23 because that conclusion is not ade- Our sua sponte decision to strike all but a small part of the staffs total quately explained. filing, for the reasons discussed at pp. 482-84, supra, moots the Joint In-It is therefore essential that the staff clarify and explain its current po- tervenors' request in this regard. . sition on SSER-7/A-48 and SSER-9/ Issue 23. In preparing its com- Joint Intervenors imply that it is necessary to correct misleading state-ments, the stalT should bear in mind the following concerns: ments by LP&L in the latter's reply to the motion to reopen. Joint Inter-venors, however, actually seek to correct certain shortcomings, identi-
- Why as the QA breakdown described m SsER-7/A-48 not so "pervasne . .as fied by LP&L, in the supporting documentation for their motion to re-to . raise legitsmate doubt as to the plant's capabihty of being operated safely?" Sa fact /k Gas and Deanc Co. (Diablo Canyon Nuclear Power Plant, open. To this end, they tender four more exhihits, each of which is of tJmts I and 2J. At. A HJ56,18 NRC 1340,1354-55 (t983). dubious value and was available well before they filed their motion to reopen. Joint intervenors have provided no good cause r permi ing
- In view of the app.irently serious QA de6ciencies idenufied, what is the basis this belated attempt to rehabilitate their motion.is Moreover, as we said for the stalTs conclusion (SSER-9 at 851 th.si "the As-Budt plant was adequate-
'Y dc5'8"ed '""$8'ucied, inspected. and iesied and can be operated wiihoui n our Order of March 14,1985, supra note 1, at 6,"[wle are capable of undue risk to the pubhc heahh and safety *? Icading legal argument, Cxamining exhibits, and deciding the matters H The saalTs reply m exh or these instances was ewentially "A-48 "
*" us as t P& L Enh. 5 m reply to Joana interve. t P&L's response m son o ica T riwo Kuments have not been provkled.
18 Joint latervenurs' monon ror leave to re7ty to kP&L es liself unumely as weli was rded ainess iwo months herore Joini intertenors sought permmson to reply to n 886 487 __ ,Waf. .B,B* {M.l#*D-N [ I ' '
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in our Order of December 19,1984 (unpublished). we noted the before us without the cxtended volleying of the parties." Accordingly, Joint Int;rvenors' motion for leave to reply to LP&L is demed. po sible overlap of m:tters being inv7stigated by OI rnd r:ised en JoEt s Intervenors' motions to reopen. Invoking the Commission's policy for A large part of Joint intervenors' tendered reply consists of new argu-ment, critical of the staffs conclusions on certain a'. legations addressed handling conflicts between the need to protect investigative material , from remature public disclosure, and the need for disclosure of infor- ( in SSER-7. Our striking of most of the stalTs reph, which relied heavily on SSER-7, renders Joint Intervenors' argument on this pomt largely ac- matio potentially relevant and material to a pending adjudication, we ademic. In addition, SSER-7 was issued almost a full month before Joint sou ht information from 01 - in writing and on an ex parte, in camera, Intervenors' November 8 motion to reopen. See Board Notification No. basis - that bears on the motions pending before us. See 49 Fed. Reg. 84-170 (Oct. 12, 1984). Ilence, any criticism specifically directed t 36,032 (1984). 01 responded to our request on January 15,1985. Much SSER-7 should have been encompassed in Joint Intervenors' motion t of the information provided was sketchy because many of the 12 investi-ations in question were still under way. By a separate order issued reopen. As in the case of their unsuccessful attempt to rehabilitate a part of their motion to reopen in the guise of a reply to LP&L, it is too late foday also on an ex parte, in camera, basis (as contemplated by the now for joint Intervenors to supplement, in elTect, their motion with Commission's policy), we request additional and updated information from 01 concerning the issues before us. argument on SSER-7. Joint Intervenors' motion for leave to reply, inso-far as it concerns SSER-7, is therefore denied. Finally, another segment of Joint Intervenors' reply addresses three 1. The NRC staffs December 21,1984, reply (including the affidav-issues in SSER-9 (Issues I,6, and 22). Unlike SSER 7, SSER-9 was not its) to Joint intervenors' motion to reopen is stricken, except to t e issued until after both Joint Intervenors' motion to reopen and the extent noted in this opinion. stalTs reply were filed. See Board Notification No. 85-006 (Jan.14, 2. The staff's affidavit (s) attesting to the validity of the statements , 1985), supra. The SSER-9 issues discussed in Joint Intervenors' ten- of fact in SSER-9, and its clarification and explanation ofits current posi-dered argument relate to charges in the motion to scopen. Moreover, we tion on SSER-7/A-48 and SSER-9/ Issue 23 shall be filed by Aprd 10, have indicated our intent to treat SSER-9 as though it were the staffs 1985. LP&L also may file supplementary comments on th_s i matter by reply to that motion. See p. 485, supra. In these circumstances, we grant the same date. Joint Intervenors may submit comments in reply to these that part of Joint Intervenors' motion for leave to reply that includes staff and LP&L filings by April 22,1985. All such filings shall be delivere argument on SSER-9. The comments of LP&L and the staff, filed in re- to us and the parties by close of business (5:00 p.m.) on the dates sponse to Joint Intervenors' January 25 motion, will also be considered specified. insofar as they concern SSER-9."
- 3. Joint Intervenors' January 25,1985, " Motion for Leave to File Reply to Applicant and NRC StalTs Responses to Joint Intervenors, E#" #
IV* M II " I wise denied. Several of the charges in Joint Intervenors' motion to reopen appear It is so ORDERED. to concern matters that are before the NRC's Ollice of Investigations (01).2* The response to these charges provided by the staff and LP&L is FOR Tile APPEAL BOARD minimal. This is understandable, given that LP&L is not in a position to know what 01 might be investigating, and the staff, if it knows, might be precluded from disclosing information about such ongoing investiga- C Jean Shoemaker tions. S to me Appeal Board l'We none that the w!!'s commems an thss regard are ,uthlantsally bcuer and mose undermndable than us origmal reply to the nusuon to reopen. 20 3,,, , g , M g gg3, g( p. 489 488
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Cite as 21 NRC C90 h985) ALAB-802 LICENSING BOARD: DISCRETION IN hlANACING PROCEEDINGS UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION on the part of the tribunal hearing the evidence. A trialjudge must have great latitude in that regard, especially where certain of the parties are represented by lay persons and the judge concludes that they are in need ATOMIC SAFETY AND LICENSING APPEAL BOARD of assistance. Administrative Judges: RULES OF PRACTICE: SUBPOEN AS (STAFF WITNESSES) More than a mere disagreement among staff members is necessary to Alan S. Rosenthat, Chcfrman compel testimony by staff witnesses not otherwise scheduled to testify. Dr. W. Reed Johnson Aferropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. Gary J. Edles 1), ALAB-715,17 NRC 102 (1983). In the Matter of Docket Nos. 50-440-OL ~ 50-441-O L The Commission's Rules of Practice do not prohibit the admission of hearsay chct Duk her & Mam R Muh Nuckar Sa-DuAe Power CLEVELAND ELECTRIC ILLUMINATING tion, Units I and 2), ALAB-669,15 NRC 453,477 (1982); COMPANY, et at Co. (Catawba Nuclear Station, Units I and 2), ALAB-355,4 NRC 397, (Perry Nuclear Power Plant, 411-12 (1976). s and 2) March 26,1985 QUALITY ASSURANCE: DEFICIENCIES (RESOLUTION) The requirement in 10 C.F.R. Part 50, Appendix B, Criterion XVI, The Appeal Board in this operating license proceeding denies interve-that quality assurance deficiencies be identified and corrected promptly nor's request to reopen the record to receive further evidence on the does not mean that they must all be corrected as quickly as humanly issue of quality assurance, and affirms the Licensing Board's partial m,- i . tial decision (LBP-83-77,18 NRC 1365 (1983)), which found applicants, p ssible. quality assurance program for the Perry Plant adequate. QUALITY ASSURANCE: DEFICIENCIES (RESOLUTION) RULES OF PRACTICE: REPRESENTATION Although ultimately all deficiencies of potential safety significance must be corrected, it is not necessary to rectify all of them at once, ow Neither the Administrative Procedure Act nor the Commission's rapidly a particular deficiency need be cured will depend upon such fac-Rules of Practice require an adjudicatory tribunal to ensure that a party tors as its nature and significance, the stage of plant construction, and appearing before it is represented by counsel Rather, it is the responsi-whether the deficiency might shortly be covered up by further construc-bility of the party itself not merely to decide whether it wishes to be rep-II "
- resented by counsel but, in addition, to take the necessary measures to implement its decision. See generally Aletropolitan EJison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,1246-47 (1984), rev'd in part on other grounds, CLI-85-2,2i NRC 282 (1985).
493 490
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i APPEARANCES their importance t3 safety.,,* The program must also m.clude provisions r' quiring that the cpplic nt regularly review its status and adequacy.7 Terry Jonathan Lodge. Toledo, Oh , ( r intervenor Sun 00wer Alli-The regulations further mandate that the progr:m cst:blish mersur;s to ance. assure that conditions " adverse to quality" are promptly identified and
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- t The I ve and Ulect ic 11uminating Company, er al not relevant here) of the adequacy of the applicants' quality assurance *
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E E'* Colleen P. Woodhead for the Nuctear Regulatory Comm issi on staff. Sunflower's quality assurance contention in the following terms and ad-mitted it for trial: ISSUE #3. Apphcant has an madequate quality assurance prograrn that has caused DECISION or is continuing to cause unsafe constructionf The applicants questioned the Board's ruling on the ground that the con-Before us is the appeal of intervenor Sunflower Alliance (Sun 0ower) tention represented a baseless and unfocused attack on the entire Perry rom the Licensing Board's disposition of one of the matters in contro. quality assurance program.S The Board responded by limiting the scope versy in this operating license proceeding - Sunnower's contention of this issue "to the quality assurance implications" arising from a c allenging the adequacy of the applicants' quality assurance program February 1978 "stop work order issued to [the applicants) and the steps r the Perry plant.' Through a series of rulings that culminated in a par. taken by Ithe applicants] to remedy deGeiencies leading up to the stop t mittal decision, the Licensing Board found the program adequate "to work order "" continue to prevent unsafe conditions at the plant."2 Claiming that the Some four months later, Sunnower moved to broaden the scope of Board committed numerous errors, Sunflower asks us to overturn that the issue because " quality assurance deGeiencies and resultant unsafe result and to reopen the record for the taking of additional evidence on construction" assertedly were continuing to occur at the Perry site." t e qu ity assurance issue.2 The applicants and the NRC staff oppose The Licensing Board denied the motion as not " ripe." It declared that r the reasons hereafter discussed, we deny Sunflower's re. Sun 00wer might uncover other possible quality assurance deficiencies quest for a further hearing and aflirm the partial initial decision.* during discovery. For this reason, the Board thought it " preferable" to defer any consideration of the enlargement of the contention until it g, could become "more fully informed of the available evidence."" in this
* ###U * * * * * * *N
'#88 *
- Under Commission regulations, a utility building a nuclear p wer authorized to conduct should be " broadly interpreted in the interest of plant is required to have an effective quality assurance program to the end that the plant is constructed properly.5 Among other things, the pro-gram must provide for control over activities affecting the quality of structures, systems, and components, to an extent consistent with
- u t in.
Ibt. 8 M { XVI.
' LBP.8124.14 NRC 175. 210 (1981).
8As uwd en stus opin.on. the serm qualuy anurance" ( endudes "quahiy controt - s,c 10 l' Apphcants' Requests ror Ctanficanon or, and obpecuons so, special Prehearing Conference C F R. Part 50. Appendia B. Introducuan. dum and order ( Aug. 7.19818 at 13-84. 2 tap.g3-77.18 NRC 1365.1396 (1983). H ! BP-8135.14 NRC 682. 687 (1980. The February 1978 stop work order was issued by the Dire 2 sunkwer Altunce's Bner en support or E or NRC's Re8 eon it! It rollowed the applecanas' decmon so cease certain construction work until
- Inst:mi Decmon" (M4rth 20.1984) thercarter sunkwer's Snen at 1415. ried deficiencies were corrected. See LBP-82-t 14.16 NRC 1909.1913 (1982L 4 la dwns so, as udt be seen we tem sunhwer* 62I ntervenor sunflower Allunce er at Monon to Espand Quahty Anurance Contenuon (Jan. 8, (9
- g "P # 'cria8n 'nterlocutory ruhngs that preceded the partui uuual decmon. 88 3.
510 C F R. Part 50, Appends:B. OLBP 82-15 t5 NRC 555.564(1982L 493 492
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i their contractors was in question? The Board weit on in limit considera-full disclosur2" and that the intervenor could add to its contention lat:r, tion of the four issues "lijn the first instance" to the r; view program's , if necassary, or could even file a new one.H effectiv: ness vis-a-vis the work of Comstock." In this connection, it dis-On October 29,1982, the stalT moved for summary disposition of the c: aimed any interest in evidence respecting " individual instances of non-quality assurance issue against Sun 0ower, asserting that there was no conformances."22 Those issues, according to the Board, "will be of con-gunuine issue of material fact respecting that issue. The Licensing Board cern to us only if lit were to findl that management's role in QA has granted the motion in large measure. It nonetheless concluded that cer- been sufficiently suspect to require that [itl descend to that further level tain " management deficiencies" remained in question, which left four . of detad.,,33 issues of fact for trial:" About two months after the hearing on the four quality assurance "is-sues of fact," as thus refined, intervenor Ohio Citizens for Responsible existence, cause. neventy, duration and extent of an atieged mstance in
' u Iny *Ssura ce pr sram failed by not property controttins its Energy (OCRE) moved to reopen the record. OCRE referred to quality ciccinca$onirac ors assuranCC deficiencies assertedly substantiated by documents it had re-Whether the alleged deficiencies m property controlhng electncal contractors cently received from the NRC under the Freedom of Information Act.
extend to the proper control of olher contractors. The Licensing Board denied the motion as untimely but found two mat-ncies in the control of contractor activmes have resuhed in unsafe "
*'"*',derK Whether appheant has an adequate system for renodicall for assunng the quality of contractor performance and ast ria n ng n co rec m of receiving written evidence from the parties" on certam Afterquestions receiving deficiencies that have ansen, particularly in systems essential to safe plant operation. posed by the Board on the matters OCRE had raised.24 the requested information, the Board concluded that the deficiencies Subsequently, the applicants moved for reconsideration of this conclu. cited by OCRE were not safety-significant and thus warranted no further sion. The motion rested on the claim that Sunflower's assertions re- inquiry."
specting construction deficiencies related to only one of the project con- Meanwhile, following the submission of proposed findings of fact and tractors: L.K. Comstock, which was responsible for the electrical work. c nclusions of law by the parties, the Licensing Board opted to rule on According to the applicants, the identified deficiencies did not establish three procedural matters raised in Sunflower's proposed findings before d significant breakdown in Comstock's quality assurance program or in deciding the ultimate substantive quality assurance issues ventilated at the performance of the applicants' own responsibilities with regard to the May hearing.These matters involved claims of prejudice to the inter-the review of their contractors' work. llence, as applicants saw it, there venors because of (1) the withdrawal of Sunflower's lead coun were no issues warranting evidentiary exploration and the stafT's motion eve of the hearing; (2) the Board's assertedly unduly active role during should have been granted in its entirety." the intervenors' cross-examination of applicants' and staff's expert wit-The Licensing Board rejected this thesis. In doing so, it explained nesses; and (3) the Board's refusal to require the staff to reveal the that its specification of the four factual issues for hearing did not mean identity of an NRC inspector who purportedly disagreed with the views that the " quality assurance of all contractors' performances is as yet at expressed in the staff's testimony. Upon considering these matters in de-issue.
- Rather, in the Board's view, the adequacy of the applicants' tail, the Licensing Board rejected each of the claims.26 review program for overseeing the quality assurance performance of The Licensing Board subsequently issued its partial initial decision on the aspects of Sunflower's quality assurance contention not covered by I4lbal 2 /J at65.
DLBP-82114. supra.16 NRC at 1917. 22 jw b Apptwams' Mouon for Reconwderanon of the 1icenwns Board's December 22.1982 Memorandum 23 /w and order on summary Onpussuun or lasue No 3 (Jan. 6.1983). 24 L3P.83 52. t8 NRC 256. 258,263-64 (1983L U14 at 13-14. 25 g BP.83 74.18 NRC 1241.1252 53 (1983L ( Aug. 30.1983) 18 LBP-83-3.17 NRC 59 (1983L 26 Memorandum and Order (Procedural objecuons and staff Weincas Quesinon) D l.t at 64. (unpubbshed t 2014 at 64-65. 495 494 _ m,n,- . n. y; . _
.~m _ _
Wilt with- ! w:s Daniel D. Witt.28 On the cv3 of the hearing, however, Mr. l the Board's carlier summary disposition r: ling, it found the rpplic:nts' drew his representation of Sunflower, citing " irreconcilable difference j Nverview and control of Comstock's activities r Pctry" adequat'i, end cnd professional r;sponsibihty."n Upon being so advised, thej Lic that the applicants' quality assurance program "has prevented, and will Board informally discussed with two of Sxflower's repr_ sentatives, ; continue to prevent, unsafe conditions at the plant." The Board conclud. Amy llubbard and Jay Abramson, the implications of the withdrawa ' ed by declaring that no serious safety issue was present that required it "to undertake further inquiry into the applicant's QA control of Com-specting the hearing scheduled tito es begin th ; stock or other safety-related contractors at Perry."" the Board offered " limited assistance" to Sunnower's ified representa v This appeal by Sunflower followed38 with the further offer of additional assistance later if "they ident g* concerns that they wanted followed up at the hea ! scheduled, it began the next morning with the thetestimony cross- of the a imtia cants' witnesses. Initially, Sunflower was stated to start Sunflower seeks both a reversal of the partial . . . l decision and a examination of those witnesses. When Mr Wilt withdrew, however, OCRE agreed at Sunflower's request to conduct its cross-examinat tjopening of the record to receive evidence concerning first in order the to give applicants'eversight Ms. Ilubbard and Mr. Abramson ofh Sun-all safety additional prepara rel claim of entitlement to this relief, it argues in essence that the Licensing tion time. This agreement led Ms. Ilubbard to acknowledge t at Board: (1) conducted the hearing in an unfair manner; (2) unduly flower "would be able to present half-decent cross-examination.")* limited the scope of the hearing; O) incorrectly mterpreted certain On the second day of the hearing, Ms. Ilubbard and Mr. Abramson r:gulatory requirements; and (4) erroneously concluded that the appli- began their cross-examination of applicants' witnesses." c:nts oversight of their electrical contractor was adequate, We discuss 's remaining counsel, Mr. ll as in these claims smarim." participated in the cross-examination of the staffs witnesses as we A. 1. Sunflower s charge of Licensing Board unfairness stems in large part from developments m the wake of the last-minute resignation other aspects of the proceeding.38Notwithstanding the tab of its lead counsel. Prior to the commencement of the evidentiary hear- hearing to accommodate the last-minute withdrawal of Mr. Witt, ing on the quality assurance issue, Sunflower Alliance's lead counsel Dower maintained in its proposed findings of fact that that withd d this quired a reopening of the record." The Licen n LBP-83 Tr supra. 88 NRC as $396 Asst a rew days before the Lacensmg Board mued Hs decnion. suffered r 'udiCe*** ms that it was " deprived of a fa. hearing ir ocRE moved fut an evewgauon or anes 4aons te the en or ihe improper rinns Before 4 iwa Perry us, Sunflower compla.QA .nspeciars o,errmended to include Evesug4uon LNt is enore properly an NRC starr funcuon, and ror reture to demonurat up.84 NRC by3, thei,ssience withdrawal of its lead counsel on the eve of the hearing w a sgmr, cam sseiy mue or a -breakdown of ihe quainy asm,ar cc ,,og,a. 2a Um pAlthough OCRE acuvely supponed sunflower at the hearing below on the qualaiy assurante assue, a scemmsty has not jumed sunNwer's appeal. M sunhwer's Sner at 14-15 f h l'The Commissiun's Rules or Pracuce provuse char *lala appellant's bner rh muu clearty edenu M Try 1000 te errors or fact or Lw int are the subject or the appeal. For euh assue appealed, the preene 33 ibal. portsonAhoo participating te in the dncussmn was a representative l ce Mr.of oCRE, Susan iIsa Wdt. record releed upon in suppurt of the assernon orerror must aho be provided " 10 C.F R. 14 n 2.7624)(lL las other counsel (we noic 31, wpra) apparently was not emmediately avadable to rep Although 12 in number, only seven or sunhwer's enumeratedr iassertions warrant our considerano d to supply any . 35 Tr,100l. mmanon As to the remaming five (numbered 4,9,10, li and 82), senhwer has enher m *ece to sunflower did not plan to put on an aftirmauve case but was so rely on cross-ena record rererences or bs provided only general references such as "to the l evklence m the record 3* rr.100243. its proposed findmas" in addauun, with d be respect so each sunhwer reopened " The empia- I ""'N D N* hs raded EU to provide any exp 4na-non why its claim of err 14-15. as a resuta so requere she QMA/QC rr IMM l7418%on1808-09,1813-64,1820-35,1844,1852 3 weigh the evidence in the Conwnwrs record,Powr andCa (Midland recornauon the other four asseruuns as no more mroe waeved or sharmioned. Scr 80 CEA 2 76213); # Memorandum and order ( Aug. 30,1983), supra, at 2, IS,17-18. AL AB-270, L NRC 473. 475 0975L d 4B sunflower's Bnef at 4 It Another atiorney, terry Jonatbn Lodge, bd aho enacred an appearante on bebir or sunliower an On occawon NJ represented Hs mterests. Tr.1710 497 496 es
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understand its thesis, Sunflower believes that it b unimport:nt that the technical fr: ming of questions and pursuit'of lines of crossex:mina-tion "" According t3 the Board, it was motiv:ted by the need to com-Lic:nsing Board was not asked by it to postpone the hearing. For, ac-cording to Sunflower, the Board nonetheless was required to order such pensate for SunDower's loss of its lead counsel just befor3 the start of the hearing and to assure a complete record.47 o postponement on its own motion. This is said to be so because both On appeal, Sunflower complains that it was prejudiced by the "exces-the Administrative Procedure Act (APA')*2 and the Commission's Rules of Practice *2 entitled Sun 00wer to be represented by counsel at the hear- sive activism" of the Board.*: It maintains that the Board's conduct ! brought about substantive changes in the content of the record."It does ing. In this connection, we are told that there was no need for conducting [ not explicate, however, the respects in which the record was changed or the hearing expeditiously and are referred to an asserted Commission how its interests are adversely affected by the present state of the record. [ Policy of being " solicitous of intervenors' foreseeable needs for addition- [ SunDower advanced this same claim, in almost identical terms, before tl time for case preparation ** in recognition of the disparity between the Licensing Board at the close of the hearing below."In its August 30 [ their resources and those of the staff and applicants.** c memorandum and order, the Licensing Board examined it in detail (to-The difficulty with this line of argument is that it rests on a faulty [ premise. Indisputably, Sun 0ower had an entitlement under both statute gether with Sunnower's other claims of unfair treatment) and found it y znd Commission regulation to be represented by counsel. See notes 42 unsupported by the cited instances of Board involvement in the hear-ing." j znd 43, supra. But even given that entitlement, it scarcely follows that We need not decide whether, as one of the other members of the j' the Licensing Board was obliged to order a postponement sua sponte. Licensing Board opined,52 the Board Chairman's participation in Sun- j Contrary to Sun 0ower's apparent view, neither the APA nor the Com-mission's Rules of Practice require an adjudicatory tribunal to ensure Hower's cross-examination of witnesses might have been excessive on occasion. De that as it may, absent a clear demonstration of prejudice f that a party appearing before it is represented by counsel. Rather, it is [ (and none is even attempted by Sun 00wer), no possible basis exists for the responsibility of the party itself not merely to decide whether it 2 wishes to be represented by counsel but, in addition, to take the neces- upsetting the substantive determinations reached in the partial initial de-cision on reopening the record.5) Moreover, it must be borne in mind . sary measures to implement its decision.45 In the context of the present that there is not a bright line separating proper and excessive involve- [ ccse, this meant that, if Sun 00wer wished to be represented by counsel p ment on the part of the tribunal hearing the evidence - indeed, a trial tt the inception of the hearing and required time to arrange for the ap- h judge perforce must have great latitude in that regard.54 This is especially pearance of Mr. Lodge or some other lawyer in Mr. Wilt's stead, it had true where, as here, certain of the parties are represented by lay persons j the afErmative duty to request a postponement. Far from doing so, Sun- 1 Cower led the Licensing Board to believe that it was prepared to go for- and the judge concludes that they are in need of assistance.55
- 3. We turn now to SunDower's final claim of Licensing Board unfair- }
vard without counsel. In the circumstances, it has no ground now for q ness. At the hearing, the staff presented a panel of four witnesses who complaint. ; testified on the construction and quality assurance program activities at
- 2. The second prong of Sunnower's unfairness argument fares no g better. At the hearing, the Licensing Board took an active role in the in- the Perry site. These witnesses had participated in the inspection of U
tervenors' cross-examination of the various witnesses. As the Board ex-plained, this "was principally designed to assist intervenors . . in their 47 gag. p 48 sunflower's Bner at 2-4. d
# JJ at 4. y a sunflower Athance's Proposed findmss at 16-17.
H Memorandum and Order ( Aug.30,1983), supra, at 214- [j 42 5 U s C. 555(b) provides m relevant part ihat "la] party as ennaled to appear an person or by or with counsel or other duly quahried representauve m an agency proceedmg.= 5214. separate views c(Judge Khne. Si ln this connecuon. Judge Kime emphculy stated lus view that sunflower was not harmed by what he g 4110 C F R. 2.78 3(b) prownJes en relevant part that -tal partnershap. corporation or unincorporated asso. [ ciauen may be represented by a duly senhorued member or oMcer. or by an attorney-at-law." regarded so be an unduly acuve envolvement on the Board Chairman's part. JJ . separate views or judge 84 Sunflower's Bner at 4. Compare Stam ment of Poluy en cenJiny of1,caseng Proceedurgs, CLl-St 8,13 Kime. at 3. b 54 c ,,,pa,c Three Hdr tasad, supra.19 NRC at 1247-48. NRC 452. 4$4 (198t t 18 es revealms that, although now complammg of the Board Chairman's acuvhm. sunnower did not { 55 9 "See scarrab Meaupoluam E.Asas Ca (Three Mde I, land Nuclear stauon, Und O. ALAB 772,19 NRC 4 Iv), l24647 (1984), teniss port om erect gromaJs CLB-85 2,28 NRC 282 (1985). reguaer an objecuun durms the course or the hearms itsett to many or the acuons a now cues in support j or that compiaant.
** Memorandum and Order ( Aug. 30.1983), supra at 3. i i
499 ! 498 l t 9 ."" { '{f'
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these activities while cmployed i2 the Commission's regional ofTice that adjudicatory board from ordering the cppearance as a witness of a spe fied st:IT member i; the absence of "a showing of cxc;ptional circum-has territorial jurisdiction over the Perry facility (Region III)? On the stances, such as " direct personal knowledge of a material fact not first day of the hearing, in response to the Licensing Board Chairman's known to the witnesses made available by the Executive Director for Op-inquiry whether there were individuals on the staff who disagreed with the content of the prepared testimony of these witnesses, counsel for crations."" In its brief to us, Sunnower does not make even passing reference to the staff submitted to the Board and the parties copies of a May 18,1983 , section 2.720(h)(2)(i). More important, it does not suggest the exist-memorandum from the Region 111 Administrator to the NRC Executive ence of either a particular material fact that might have been uniquely in[ Legal Director? Among other things, the memorandum indicated that [ c staff electrical inspector and a staff investigator, both of whom had con-the possession of the inspector or some other exceptional circumstance ducted an inspection of Comstock's work, did not agree fully with the requiring his appearance as a witness. Thus, under the Commission ((s Rules of Practice, we have been given no reason to upset the refusal of testimony 58 There was a dispute among the parties to the hearing as to whether the Licensing Board to require the inspector to testify. In our Three Afile Island Restari decision relied upon by Sun 0ower,** [q the memorandum reDected a disagreement on the part of the two stafT q members with the substance of the testimony or, instead, just with its we noted that something more than a mere disagreement among staff q
" tone."5' Because the representatives of both OCRE and Sun 00wer be-members was necessary before we would compel testimony by staff wit-nesses not otherwise scheduled to testify. We perceive no specialjustif~t-lieved that the differences were substantive in nature, they requested cation here for compelling the testimony of the inspector. As is clear q the identification of the electrical inspector and his appearance for cross- 18, 1983 memorandum to examination.** The Licensing Board deferred ruling on the request until frons ooth the Regional Administrator's May g the conclusion of the stafi's testimony.*8 The hearing ended without the the Executive Legal Director and the actual changes proposed m the g stafi's testimony, whatever differences may have existed between the inspector's appearance. Ifis views, however, were discussed by the staff 3 inspector and the NRC witness panel were oflittle consequence.*' g witnesses.
Following the close of the hearing, Sun 0ower again challenged the fail- B. As previously noted (p. 495, supra), prior to the commencement g ure of the Board to order the appearance of the electrical inspector.*2 of the hearing on quality assurance issues the Licensing Board indicated g that the examination of the applicants' oversight program would be re- p Additionally, it disputed on hearsay grounds the Board's admission of stricted to the work of Comstock, the electrical contractor. If that exami-the testimony of the stalT witnesses describing the inspector's views. nation suggested that the oversight program might not have been proper-The Licensing Board rejected both of these protests." As the Board ly carried out, the hearing would then be broadened in scope to embrac d] explained, it had admitted the challenged testimony for the limited pur- O pose of shedding possible light upon whether the inspector might have other areas of work. g Sun 0ower did not complain of that determination at the time it was direct personal knowledge of a material fact not known to the panel of g witnesses." The Board further observed that it was required to make made. On several occasions during the course of the hearing, however, q Sun 0ower sought to raise through cross-examination matters that the y that inquiry by 10 C.F.R. 2.720(h)(2)(i), which in essence precludes an Board ruled were outside the scope of the quality assurance contention because they did not relate to the applicants' oversight of the work of d n g
** tui. Tr.1567 tKonkhn, craf t a DTr.1011 14 Akhough made stadable to all or the parues and dmcumed at length, the memorandum 65 lbsd mas not formally entroduced into evidence. it.1872. ** Moropokies EJaps Co. (three Mile Island Nuclear suunn, Uma No.1), At. AB-7 sa Tr.1011-24 (1983) 8 i' / bat Not s these mern m sunbefs mmNaim M g gtd ed e au te th s a tn n *8 rr.1013-46. Powbty for the reason that the saalf invesugator was saustico enh certaen ndwated si ti sa w > Id call the inspector as a wnness pursuana to 1,0 m the acssimony, the smervenors did not aho request his appearance.
a u n ng a n C FR- t 2 270(h)(2)6). las uw for that purpose was plamly permsble. Beyond that, th n 62 sunnower Athance s Proposed Fmdangs at 9-84 gules of Practre do ma prohibit the admmon or hearsay evidence. IN&c PowrCo (Ca- IAAr Powr Co. McGmre Nuclear Suuon, Uruns I and 2). AL AB 669,15 NRC 453. 477 (1982), 63Sv Memorandum amt Order i Aug. 30.1983).wpeg. at 16-87. sa ba Nuticar stauon, Unus i and 2), AL A B-355,4 NRC 397. 411 12 (1976L
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j of "promptly."" We find far more Persuasi i i ready rod quick t3 act , , Comstock Befors us, Sunnower challenges a these rulings, insisting that . , Board's view of the term as used is the regu , b was entitled to inquire into the work of otherascontractorsFor the occasion demands."" two d reasons, Employme'it the oior challenge occasson tion is insubn q. to observe, l g, on the practical and sensible. As wefhave ha pr i lected to the Comstock e inconstruction \.y the erecd atand l d fromlimitation otsecting to the en. scope ect even remotely of its quality approachingassurancecontention magnitu e th of a nuclear power plant will enjoy error re posed that limitation, SunHower was forec i discov- - oseforcement. trary, there undoubtedly of the illimitationbe a substantial w ll during thenumber hearing. of that there is an impera-Second,constr t was warranted The quality assurance contention had its roots n s ven were : cred deficiencies in Comstock's work - rather i than in widespread . deficiencies. con- Although, ultimate y,nificance must b > struction deficiencies involving other contractors f as well."tive This be ngto endeavor to recti y expenditure necessity d how rapidly a particular f so, the Board understandablyf focused it its possible attention to on do Comstock so without be an oredeciding extraord narmon t whe . other contractors. And, having found Comstock's effec- work satis 'actory, deficiency need l be curedi will depend eupon are pre- such acand ; w reasonably concluded that the applicants' oversight program was trucuon work. p tiva. significance, the stage of P ant construct on did ~ not intend the term 4 , C. A Commission regulation requires utility quality assurance pro- pared to assume that the promulgators o of these _ considerations and, accordingly n wer ascribes toit hich the app. icants grams to contain provisions for promptly identifying and correcting con.ditions " adve that this provision means that adverse conditions must be corrected "h nly "as "promptly" to have tionsthe ly rigid or improvements after NRC meaning in their re-investigation of that j S and Comstock assertedly made correc j quickly as humanly possible." This, according spective to quainy Sunflower,is assurance tprograrns erequire osensiblethe onding applicants to reading to Sunflower, -{ (ofth tiv2."" their activities had taken place." Accor i d of time,' they had exer-
) ,
In its partialinitial decision, she Licensing Board test"rejected that interpre- j tition of "promptly." As the Board saw it "a reasona bleness establish a need to reopen provoked by NRC theregulatory Licensing Board reviewed the his-record to g . should be applied to determine what is " prompt"; cised "QA supervision which has not been l i for onsoins k " It likewise considered q ; if a deficiency is serious, pan.cuserfy it in has immediate l erious defi-imphcas ons activity'"78 We think find otherwise. that tcorrections Theop the applic or improve-The 3 es - in taffs oversight role.a la did not y consuucuon,it must be remedied immedimiety, onments the other werehand, madeess onlysciencies after NRCorstaff minor involvemendeficiencies .vidin j i a mauer of days or months.U by Sunflower simply do not come close to pro 'n
- for its claim.
j 68 sunnower's anerat 13. H sunnower's anerat 10 58. 7 Edi 343,346 09tD. ',
" lap 8135.myre. I4 NRC as 686 87.
78 la C.F.R. Pari 50. Appendes a.Cruenon XVI la reads m rust: rd sant. M WeWer's New Comesame Dicuanary 921097Co. (Canawa' P heeasures 4talt ce estathhed to assure thataiverse condauons adverse so quakay, M such as a ures, runcuans, deracaensses, devienaens, defective maecnal se gambay, A and egiupment.
- T r.1596. and noncontorniences are i rective acteen taken U sunnower's aner atnsneasures llM promptly ident#ico ami correcned. t In the d case rted so ap.
or sasadicant comhuons 78 Af. at 12 shsH assure that the cause or the c
' M Lar-83 77, sapre 18 NaC as I341 to preclude reptuuon. The asenurcation or the sien cans co icause or the comhuon, and the correcuve actaon taken shan be
. so3,y, eg, ed. at (349 propnase levels or management.
M sennower Alhance's Proposed Fauhnss, saves. at 5. d U lap-83-77,nyen is NaC at I373, sw su i
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Comstock. Before us, Sunflower challenges these rulings, insisting that On appeal, Sunflower co;tinues ta press its suggested interpretation it was cntitled to inquire into the work of other contractors.68 of "promptly."n We find far mor persuasive, however, the Lic:nsing For two reasons, the challenge is insubstantial First, not having ob- Board's view of the term as used in the regulation i3 question. One com-jected to the Comstock limitation on the scope of its quality assurance monly accepted definition of " prompt" is "beitig ready and quick to act contention at the time (prior to the hearing) the Licensing Board im- as the occasion demands."'* Employment of that definition here is both posed that limitation, Sunflower was foreclosed from objecting to the en- practical and sensible. As we have had prior occasion to observe, no proj-forcement of the limitation during the hearing. Second, the limitation ect even remotely approaching in magnitude and complexity the crection of a nuclear power plant will enjoy error-free construction.n To the con- l was warranted. The quality assurance contention had its roots in discov-cred deficiencies in Comstock's work - rather than in widespread con- trary, there undoubtedly will be a substantial number of construction l I struction deficiencies involving other contractors as well." This being deficiencies. Although, ultimately, all deficiencies of potential safety sig-so, the Board understandably focused its attention on Comstock before nificance must be corrected, it scarcely follows that there is an impera-deciding whether a need existed to expand the scope of inquiry to the tive necessity to endeavor to rectify all of them at once (even were it other contractors. And, having found Comstock's work satisfactory, it possible to do so without an extraordinary expenditure of effort and reasonably concluded that the applicants' oversight program was efTec- money). As one of the staff witnesses observed, how rapidly a particular deficiency need be cured will depend upon such factors as its nature and live. C. A Commission regulation requires utility quality assurance pro- significance, the stage of plant construction, and whether the deficiency grams to contain provisions for promptly identifying and correcting con- , might shortly be covered up by further construction work.h We are pre-ditions " adverse to quality."" At the hearing below, Sanflower insisted
! pared to assume that the promulgators of the regulation were cognizant that this provision means that adverse conditions must be corrected "as of these ' considerations and, accordingly, did not intend the term quickly as humanly possible." This, according to Sunflower, is "the only "promptly" to have the rigid meaning that Sunflower ascribes to it, i sensible reading [of the regulation) from a dollars-and-cents perspec- D. Sunflower cites a number of instances in which the applicants and Comstock assertedly made corrections or improvements in their re-rive."H In its partial initial decision, the Licensing Board rejected that interpre- spective quality assurance programs only after NRC investigation of t' tion of "promptly." As the Board saw it, "a reasonableness test" their activities had taken place." According to Sunflower, these instances should be applied to determine what is " prompt": establish a need to reopen the record to require the applicants to -
demonstrate that, over some unspecified period of time, they had exer- _ If a deficiency is senous, particularly if it has immediate irapirations for onsoins cised "QA supervision which has not been provoked by NRC regulatory construction, et must be remedacd immediately. On the other hand, less serious defa- activity."7s We think otherwise. The Licensing Board reviewed the his-es r mmor dericienc s in wniten procedures may be resolved prompity in gg ; 3, oversight of Comstock." It likewise considered the stall's oversight role.** lt did not find that corrections or improve-ments were made only after NRC staffinvolvement. The examples cited by Sunflower simply do not come close to providing sufficient support for its claim. 68 Sunnower's Bner as 13.
" LBP-85-35, supra,14 NRC as 686-87.
- 10 C.F R. Part 50, Appendia B. Cntenon xvl la reads in rull-Measures shall be estabinhed to assure that conditaons adverse to quahty, suth as radures, mal- 73 sunnower's Snerat 10 II.
runcisons, deficiencies. devuuons, derecuve matenal and equipment. and nonconrcrmances are 74 Webster's New Collegiate Dieuonary 921 (1977 Ed L prompaty edenu6ed and corrected. In the case or ugmficant condnaens advene to quahty, the 75 Unam Drrsnr Co. (callamay Plant, Unit I), ALAB-740,18 NRC 343,346 (1983L measures shalt assure that the cause or the condinon as determined and correcuve action taken y I-to preclude repernoon. The idenuficahots or the sigmrscant condmon adverse so qualuy, the cause or the canthuon, and the correcuve acteun taken shall tie documented and reported so ap- U sunnower's Brier at Il 12. 7814 at 12. ! propnaic levels or manssement. 88 sunnower Alhance's Proposed Fmd ngs, supre. at 5. " LBP-83 77, supre.18 NRC as 1381-94. DLBP-83-77, sanpra.18 NRC at 1373. 88 see. t K . ad at1389-94. 502 503 1
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Finally, SunGower insists that there h insufficient cvidence tr
- support the Licensing Board's' ultimate finding that the applicants provid.
Comstock's 0^/QC 88f *8"**' d*""'*d '" ' craft to QA/QC is appromisnalely 3 to . wdd b .
'ed adequate overview and control of Comstock's activities at Perry.8' As '8**"***'" "w best as we can understand it, the argument rests on two propositions-(1) the t inadequacy 'ofL the ; applicants' oversight . of Comstock . is : Contrary ,,3,,gg,,,,.s assertion, there is no indication of any signifi- 3 demonstrated by the fact that the NRC staff, and not the applicants, dis-'. cant rehance by Board on the stan's testimony in reaching these con-covered the deficiencies during an investigation of the electrical work at .. , 't based its findings ahnost entirely on the testimony of :
. clusions. pa Perry;82 and (2) the staff's testimony concerning the corrective actions- -a urray R. Edelman and Gary R. Leidich.* We are -
taken by the applicants since the time of the investigation report "is not hat that testimony provides the requisite support for the ulu-: compiciely credible."s2 - mate Board determination on the quality assurance issue. - , We disagree. To be sure, the deficiencies (nine in number) that were discussed in the investigation report had been identified by inspectors in . 'Sunnower Alliance's request to reopen the record to receive further . - Region Ill. But nonetheless, the Regional Administrator subsequently evidence on the question of the adequacy of the applican 4 decided that both (1) a significant breakdown in Comstock's quality ance program at Perry is denied, and the Licensing Boar s . assurance program had not occurred; and (2) the applicants were taking 1983 partial initial decision is affirmed. corrective steps to upgrade that program.8* As we noted at pp. 495-%, sarpra, in its partial smtial decesson the FOR Tile APPEAL BOARD Licensing Board carefully reviewed the applicants' quality assurance pro- . gram history at Perry.88 Based upon that review, it found that the appli-cants' "QA program was actively overviewing Comstock's QA program ~ for the period prior to the commencement of the NRC isitaft's 1981-82 C. Jean Shoemaker investigation "8* It further found that, during that period, the applicants . Secretary to the had identified deficiencies and required appropriate corrective action.8' Appeal Board As to the more recent state of the applicants' quality assurance pro-gram, the Board concluded that the applicants had " conducted an exten , sive QA overview of Comstock from late 1981 through early 1983, and . that applicant adequately controlled Comstock's work."" As observed by the Board: Applicant conducted a steady stream of reviews, including at least 25 audits; and 1 took significant corrective action steps durung this perioaf, includ ng issuing 4 stop work poufications against Comstock. There is evidence demonstrates that Com-stock undertook major corrective action in response to apphcant's involvement, par. ticularly in the area of QA/QC staffing, and QA/QC and craft traaning. We note that se s ,no,,,,, g,,g,, ,y,,y.
- 2. A : p No. gg g d by NRC's Resma Ill between october 1981 and March '
heaten was assued in september 1982. 83 s,ngo,,,,, g,,,g,, ,y.
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aoun8 Entt ) netter frorn James G. Keppler to Dalmyn R. Davidson (Sepe. 27,'I982)), tot Tr.1618, E8P 83-77. severs.18 NRCat 1388 86' 8* M at $335-86. 8' M as 1384. # M at 1381-86.Mr. Edelman is Vice President, Nuclear Group, of The Cleveland Elecine attuminaarns 8' 18=1 Conipeny. Mr. LeeJach is Sensor Engencer, Nuclear Construction Engmeenns Secuon, of the company. 88M as (385, H la view of the autinsantial evidence presented by the apphcanas on thes score, we need not address the quesamn of the vahdeny or sunnower's characiensahen or she NRC staff aessimony. ' 544 545
Atomic Safety and Licensing Boards issuances l I l ATOMIC SAFETY AND LICENSING BOARD PANEL
- I 1
B. Paul Cotter, " Chairman ; Robert M. Lazo, 'Vice Chairman (Executive) l Frederick J. Shon, "Vice Chairman (Technical) l l Members j i Andrew C. Goodhope Dr. Linda W. Little
! Dr. George C. Anderson Charles Bechhoefer' Herbert Grossman* Dr. Emmeth A. Luebke*
Peter B. Bloch* Dr. Cadet H. Hand, Jr. Dr. Kennth A. McCollom Jerry Harbour
- Morton B. Margulies*
Lawrence Brenner* Glenn O. Bright
- Dr. David L. Hatrick Gary L. Milhollin Ernest E. Hill Marshall E. Miffer*
Dr. A. Dixon Callihan James H. Carpenter
- Dr. Frank F. Hooper Dr. Peter A. Morris
- Hugh K. Clark Helen F. Hoyt* Dr. Oscar H. Paris
- Elizabeth B. Johnson Dr. Paul W. Purdom Dr. Richard F. Cole
- Dr. Walter H. Jordan Dr. David R. Schink l
Dr. Frederick R. Cowan
' Dr. Michael A. Duggan James L. Kelley* fvan W. Smith
- Dr. George A. Ferguson Jerry R. Kline* Dr. Martin J. Steindler Dr. Harry Foreman Dr. James C. Lamb lil Dr. Quentin J. Stober James A. Laurenson* Seymour Wenner Richard F. Foster John H Frye til' Gustave A. Linenberger* Sheldon J. Wolfe*
James P. Gleason "Plermanent panel members
!, 3 i
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LBP 85-7 Cit 2 r2 21 NRC 507 (1985) UNITED STATES OF AMERICA ! NUCLEAR REGULATORY COMMISSION ! i ATOMIC SAFETY AND LICENSING BOARD i l Before Administrative Judges: Ivan W. Smith, Chairman Dr. Cadet H. Hand, Jr. Gustave A. Linenberger, Jr. Docket No. 50-537-CP In the Matter of (ASLBP No. 75-291-12-CP) UNITED STATES DEPARTMENT OF ENERGY
! PROJECT MANAGEMENT CORPORATION TENNESSEEVALLEY AUTHORITY l
(Clinch River Breeder Reactor March 11,1985 Plant) I' The Board, imposing certain conditions on redress of the site, grants the Applicants' motion to authorize revocation of the Limited Work Au-thorization and to dismiss this construction permit proceeding without j prejudice. l REGULATIONS: EXEMPTIONS Section 50.10(c) of 10 C.F.R. generally prohibits an applicant from starting site or construction work before the applicant obtains a construc-l tion permit or a Limited Work Authorization. Ilowever,10 C.F.R. 6 50.12 provides for exemptions from { 50.10(c), upon a consideration and balancing of several factors, including "[wlhethes redress of any ad-verse environment impact from conduct of the proposed activities con reasonably be effected should such redress be necessary." 507
....._,._..y__.
~ -- - % ,. ; _. ,
ST U ION PERMITS: CITIIDRACAL OF 1984, the N:trral Resources Def nse Council (NRDC) cnd the Sierra Club, joint intervenors in this proceeding, do not oppose the motion. Exercising our responsibility under 10 C.F.R. l 2.107(a) to consider The Board, exercising its responsibility under 10 C.F.R. 5 2.107(a) to whether we should prescribe terms for the withdrawal of an application, consider whether terms should be prescribed for the withdrawal of an ap- we grant the Applicants' motion, after clarifying what the responsibilities i plication, predicates its granting of the Applicants' motion to authorize of the Applicants and the Staff are in the event an alternate mdustrial revocation of their Limited Work Authorization and to dismiss the pro- use is found for the site before redress is complete. ceedmg without prejudice upon the adequacy of the Applicants' site re-dress plan, and upon clarification of what the responsibilities of the Ap-plicants and the Staff are in the event an alternate use is found for the TIIE APPLICANTS' COMMITMENTS AND OUR JURISDICTION site before redress is complete.
*# # "" E** # E*
Clinch River Breeder Reactor Plant as a cooperative project between m-CONSTRUCTION SITE: MODIFICATION OF REDRESS dustry and government for the design, construction, and operation of A condition of the Board's granting the Applicants' motion to dismiss this construction permit proceeding is that if an alternate use is found the Nation's first demonstration-scale fast breeder reactor. A construc- *
, tion permit was applied for in 1974, and the next year NRDC and the for the construct on site before redress of the site is complete, the Appli- Sierra Club petitioned to intervene in the mandatory hearings. In 1977 cants, under the Staffs review, will carry out, to the greatest extent the Carter Administration decided to cancel the project, and this pro-possible consistent with the alternate use, the redress plans approved in ceeding and the Staffs review of the application were suspended. Four this Order. years later, the Reagan Administration directed that the project be completed, and the next year, on motion from the Applicants, we lifted the suspension of this proceeding.The parties and the Board then under-MEMORANDUM AND ORDER GRANTING t k preparations for evidentiary hearings on issues which had to be ,
APPLICANTS' MOTION TO DISMISS decided before we could authorize the issuance of an LWA, and uits-PROCEEDING mately, a construction permit. Section 50.10(c) of 10 C.F.R. prohibits the commencement of certain site or construction work before an applicant obtains a construction In November 1983,in the face of action the month before by Congress permit or an LWA, but 10 C.F.R. 6 50.12 provides for exemptions from which made it appear very likely that the funds necessary to complete { 50.10(c), upon a consideration and balancing of several factors, includ-the construction of the Clinch River Breeder Reactor Plant would not be ing "lwlhether redress of any adverse environment impact from conduct lppropriated, the Applicants - the United States Department of Energy of the proposed activities can reasonably be effected should such redress (DOE), the Project Management Corporation (PMC) and the Tennessee be necessary. 10 C.F.R. 50.12(b)(2). On motion from the Applicants, Valley Authority (TVA) - agreed to terminate the project. The Appli- the Commission granted the Applicants an exemption from 6 50.10 per-cants now move the Board to authorize revocation of the Applicants' Limited Work Authorization (LWA), and to dismiss the proceeding mitting the conduct of nonsafety-related site preparation acuvities. CLI-82-23,16 NRC 412 (1982). The Commission's decision rested in without prejudice. Since termination of the project, there has been a part on record evidence that, although " perfect restoration of the search for an alternate industrial use for the project site, but no such use topography could not be achieved," substantial redress could be, and has been found. The Applicants therefore propose to redress the site in , that the Applicants had committed to whatever redress was both achieva-accord with commitments they made before they began to prepare the ble and necessary. Id. at 427-28. site for construction of the plant. Applicants' Motion dated October 19 In 1983 this Board, after evidentiary hearings, authorized the issuance 1984. The NRC StafT, having obtained the agreement of the Applicants of an LWA. LBP-83-8,17 NRC 158 (1983).Then, after the completion to honor certain conditions regarding redress, supports the motion by a filing dated November 8,1984. In their Response, dated October 30, 509 508 l
of hearings on construction permit issues, while wa wera writing the ini-native 2 as described in the Site Redress Pla:ning Task Force R: port t al decision en those issues, the Senate voted to table its Appropriations (Task Force Report), on which the Final Sita R: dressi Plan is based. i ommittee amendment containing a multi-year appropriation for the y,I cants' Motion, Attachment F at 2. The Staffs support of the! Ap project. On motion from the Intervenors, the Appeal Board terminated cants' motion to dismiss the proceeding is conditioned on the Appli- i its own proceedings on LWA issues, and vacated our authorization of cants' a reement to abide by the Final Site Redress Plan wherever l the issuance of the LWA. ALAB-755,18 NRC 1337 (1983). Ilowever, fers from the Task Force Report. Staff Response at 2 3, and Attachments ppea ard denied the Intervenors' motion to authorize the Direc-2 and 3 thereto.The Supplemental Agreement also obligates $5,000 for the redress and sets November 30,1985, as the date for the com to o Nuclear Reactor Regulation to revoke the LWA. The Appeal r argued that the issue of revocation was better left to this Board, tion of the work. Applicants' Motion, Attachment F at 3. still retained junsdiction over the application for a construction The Intervenors would have preferred that the Applicants restore the w permit, to determine whether conditions should be imposed to amelio-site "to as nearly approaching its original condition as possible." Interve rit: the environmental impacts of site preparation. /J. at 1339. nors' Response at 2-3. Barring this virtually complete d restoration, t tervenors would prefer an option identified in the Final Site Re ress I Plan as Alternative 1. Under Alternative 2, the agreed-upon option, re-Tile REDRESS PLAN ! dress will leave some 54 acres parceled out into three A, distinct but con-nected areas at elevation 810. Applicants' Motion, Attachment ' The Applicants have agreed to redress the site in accord with a plan Sketch 3. Redress under Alternative I, however, would leave a ro
,dentified i in the Final Site Redress Plan (Applicants' Motion, Attach- rectangular area at the same elevation, an area which, though it i ment I) as Alternative 2. The objective of that Alternative is a self. acres smaller than the three areas under Alternativeld2, would per miintaining, environmentally stable, and aesthetically acceptable site suitable for mdustrial use, for which the site has long been zoned. Appli- greater flexibility in land use by any future f indu cants' Motion at 12. To achieve that objective, Alternative 2 requires tive I is environmentally superior to Alternative 2, though Tr. they put or-among other things, that excavations be filled in at least to elevations ward no basis for their claim and we cannot identify any such basis.
high enough to allow the site to gravity-drain to the Clinch River, that 8912-areas outside the presently cleared area be left undisturbed, that the sur- flowever, rather than risk further delay in redressing d thethe site, the In face be stabilized to prevent erosion, and that certain buildings be re- tervenors have chosen not to oppose the terms the Applicants an moved from the site. Id. at 12-13. Environmental control of the site Staff propose for dismissal of the proceedings and revocation of Instead, the Intervenors since termination of the project has been carried out in accordance with LWA. Intervenors' Response at 1; Tr. 8917-18. a complex regulatory scheme involving the Applicants and several other invite us to exercise our power under { 2.107(a) tof prescribe ter State and Federal agencies. /J. (( 3.2-3.3 and Appendix B. The same the withdrawal of the application in the direction of Intervenors pre er-scheme w,ll i be adhered to while the site is being redressed. /J. ence. Intervenors' Response. By letter dated June 6,1984, the Staff conditioned its acceptance of We decline to require either that redress be carried out si according to Alternative 2 on the Applicants' agreeing to certain requirements con. the terms of Alternative 1, or that the site be restored as nearly as pos - cerning, principally, reports to the Staff and facilitation of the regrowth ble to its original condition. We find no deficiency ini Alternative 2 l of vegetation. Applicants' Motion, Attachment E. The Applicants have treatment of the environment. Moreover, there has been 2,orno show ng agreed to conform to these requirements. Applicants' Motion at 3 that Alternative I is either environmentally superior to Alternative in August 1984, DOE and TVA entered into a Supplemental Agree- more geared to industrial development. But, in anyi event, Alte ment m which DOE agrees to redress the site in accordance with Alter- will leave the site more suited to industrial development tha its original condition. Tr. 8910-11. site condition even more suited to such development. d ' nb*eaY'n"e'Ne" e *e"*a"Ur "" "[" '""'"* "*'* *"' "*""*"' d 'h* 'swes s d remunes as* re. hat beep mea e or by
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Tile CESPONSIZILITIES CF THE APPLICANTS AND THE nors therrfore urged that the r: dress plan be modified only upon the STAFF IF AN ALTERNATE USE IS FOUND BEFORE securing of a firm commitment to an alternate use, a commitment as ex-REDRESS IS COMPLETE pressed in a letter of intent or some similar document, and that even m the event of such a commitment, redress be continued to the greatest By the time the Applicants filed the motion before us, they and the extent possible. Tr. 8915-16. Staff apparently had come to an agreement about whether, and how, re- In reply, the Applicants claimed that, given the lack of success o7y ge dress would be modified if an alternate use were found before redress extensive efforts to fmd an alternate use for the site, it was not had been completed. Ilowever, the terms of that agreement were not that one would be found before redress was complete, and that t ere- , clear to us. The language of the Final Site Redress Plan was definite: fore, it was not likely that the Applicants would have the opporturmy. The redress plan would be modified only if a " committed" alternate use let alone the itsclination, to delay redress. Tr. 8892. They said, thoug e, trere found prior to the commencement of redress; and in such a case, that given such an opportunity, they would adhere to the morer re res modification took a definite form: " redress would be implemented by language of the Final Site Redress Plan, which explicitly calls the Project in accordance with this plan on those areas of the site not according to Alternative 2 of all areas not stated for alternate use. committed to industrial use." Applicants' Motion, Attachment A at 8892, 8905. The Applicants also made clear that even in t ose are 16-17. The language of later documents, however, was more general which were stated for alternate use, redress would continue to t e gre g and loose: The plan would be modified "as appropriate" if there were est extent possible. Tr. 8905, 8922. Ilowever, they argued t n an " expression" of" interest" from a " serious prospect" before the com- them to require a serious prospective user to execute a letter o pletion of redress. Id., Attachment E (Stafrs June 6,1984 Letter) at I; similar document before redress would be modified mig id., Attachment F (Supplemental Agreement) at 3. tion in which certain valuable uses of them site would be forec ose . More important, it was not clear to us what jurisdiction the parties 8891-92. The Applicants also disavowed any , clination to use expre thought the NRC, and most crucially, this Board, had over any negative sions of slight interest as an excuse for delay. Tr. 8898. e pa environmental effects arising from modification of the redress plan to Thus the problem presented the Board in the conference o t make the site more attractive to a " serious prospect." On the one hand, was to find tha'. action by the Board which would help assure under 5 2.107 and the Appeal Board's order dismissing its proceeding completion of redress would not be delayed but also that res urce and vacating our authorization of the LWA, we had the power to pre- would not be wasted by letter-perfect adherence to Alternative e si scribe terms for withdrawal of the application in order to ameliorate any face of an expression of genuine interest in an alternate use o r.nvironmental effects of site preparation. On the other hand, it was clear The Intervenors proposed that we keep jurisdiction over redress un yi that neither the Staff nor the Board had any jurisdiction over any nega- completion. Tr. 8900,8914,8918. They also asked that they be any tive environmental effects caused by an alternate use secured after re- formed by the Applicants of the existence of an alternate use an pp e dress was complete. What jurisdiction, then, did either the Staff or the modifications to Alternative 2. Intervenors' Response at 3. The Board have over such negative effects in the case where an alternate use cants on the other hand, argued that the Staff was quite able to oversee was found before redress was complete? And could we delegate any redress and any modifications to the plan, and to distmguish sham ex jurisdiction we had in the latter case to the Staff? pressions of interest from genuine ones, and that, in any event, nta a com- us To help us clarify what the Applicants', the Staft's, and our responsi- plex regulatory scheme was in place to pro ct environn bilities would be in the event an alternate use were found before comple- both now and durmg redress. Tr. 889 - , , y tion of redress, we held a conference of the parties on February 28 nonetheless expressed their willingness to inform the Intervenors ess 1985. Tr. 8885-8924. At the conference, the Intervenors argued that the of the existence of an alternate use and of any modifications to re looser language in which the Staff's June 6,1984 acceptance letter and The Staff for its part expressed its commitment not to permit unjus the Supplemental Agreement between DOE and TVA described possible delay in the completion of redress. Tr. 8918. , modifications to the redress plan left room fdr the Applicants to treat ex- In our view, the best course is to entrust to the Staff the oversight pressions of slight interest in industrial use of the site as excuses to post- redress and any modification of Alternative 2. The most important bases pone redress, or its completion, indefinitely. Tr. 8890-91. The Interve-i 513 i 512
.----w - - - ~ ~ ~ ~
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i for our decision ar1 the Applicants, explicit commitmeits and acknowl- (3) The Applicants will inform the Int ~ rvenors fully r nd immedi-edgment of the StalFs jurisdbion over not only the implementation of atelY of the existence of an alternate use of the site, and of any the redress plan but also the justification for modifications to that plan. m difi ions to edres The already unlikely prospect of delay m the completion of redress is made more unlikely by the Applicants commitment to carry redress t revoke the Limited Work Authorization issued under LBP-83-8,17 completion in all areas of the site which, before the end of redress, d NRC 158 (1983). In accord with 10 C.F.R. { 2.107(c), the Director will not become slated for alternate use, and m those latter areas to continue cause to be Published in the Federal Register a notice of withdrawal of i redress to the greatest extent possible. This commitment conforms to at the application for a construction permit.
least part of what the Intervenors seek here. But they also want us to This proceeding is dismissed without prejudice.
cversee the carrying out of that commitment. Ilowever, the redress plan has been subject to litigation in this proceeding and has gained the am FOR TIIE ATOh11C SAFETY AND proval of all the parties and of the Board. What remains for this agency LICENSING BOARD to do is to see that the terms of the plan are carried out, and such over-sight is classically a function of the Staff. Even if, despite the Applicants' commitment to continue redress to the greatest extent possible, there re. Gustave A. Linenberger, Jr.
mains some possibility that redress might be delayed on grounds of a ADh11NISTRATIVE J UDG E less-than-genuine expression of interest in the site, the Staff may be depended upon to discern whether delay would bejustified. The exercise of such routine busine rook facility make it un-tion of the Seabrook facility. The New Ilampshire Yankee Division is en.
clear who has authority over the construction quality assurance in viola-visioned under the Resolution to ultimately dissolve with separate corpo. tion of Criterion I of Appendix B. The Petition claims that PSNil no rate entities assummg responsibility for completion of construction and operati longer has clearly established and delineated authority with respect to of the Seabrook facility. Staffing of the Division by employees QA and construction. Further, to the extent that PSNil does retain any
, an entity experienced in nuclear construction and operation control over the construction program for Seabrook, the Petition alleges and recognized by the Licensing Board as essential for construction of that PSNil has compromised its authority and organizational freedom to roo facility, is not mappropriate. In any event, the current or.
elTectively supervise QA by becoming heavily indebted to its contractors ganizational structure has the New llampshire Yankee Division and its and creditors, again in violation of Criterion I of Appendix B. ernployees subordinate to PSNil with PSNil remaining accountable for The current management and organization associated with the imple-I esign and construction of the Seabrook facility. Incorporation of the mentation of the Q A Program at the Seabrook facility have been the sub-ject of a recent NRC Staff review and were found to continue to satisfy
%enwes' ne,pon.e .,4. the requirements of 10 C.F.R. Part 50, Appendix B. The description of 'lAensees' Response 4:5, 9.
539 538
~
3
this m:nagement and organizational arrangement is provided in PSNil's The New IInmpshire Ytnkee Division consists of an integrated project letter of October 31,1984, from W.P. Johnson to G.W. Knighton which organization to ensure effective project manag: ment control. T is in-has been reviewed by the NRC Staff.8 As a result of this review, the tegrated organization is comprised of the Director of Construcuon, t e Staff found that PSNil has established a new integrated project organiza- Director of Engineering and Licensing, the Vice President of Nuclear tion, the New llampshire Yankee Division, with delegated responsibility Production, and the Vice President in charge of Admimstrative Services for the design, construction and operation of the Seabrook facility. who is responsible for interfacing with YAEC Quality Assurance Depart Under this new organizational arrangement, PSNil continues to delegate ment. Responsibility for quality assurance has been delegate to the Yankee Atomic Electric Company (YAEC), through the Division, YAEC for the development, execution, and admmistration o responsibility for establishing and implementing the Quality Assurance Program. Program. Also, PSNil continues to retain ultimate responsibility for this The YAEC Director of Quality Assurance who reports to the YAEC program. This arrangement has been acceptable in the past and complies , President is responsible for establishit.g policies und r wh with Criterion I which permits PSNil to delegate to others, such as con- Yankee quality assurance organization works, and with wh co tractors, agents, or consultants, the work of establishing and executing comply, lie approves the Seabrook Station Quality Assurance hianua the Quality Assurance Program or any part thereof, providing PSNil _ which governs all YAEC program activities and receives copies o corre-retains responsibility therefor. spondence and reports generated by the Quaaty Assurance Departmen . The Petition alleges that responsibilities and authorities over quality lie evaluates and reports to the President on the effectiveness o e assurance are not clearly defined at Seabrook, and specifically, that indi- Quality Assurance Program. lie reports on a quarterly basis t viduals immediately responsible for QA may be accountable to four dif-Ilampshire Yankee Division management to cep ferent organizations. The Staff has found that lines of responsibilities program status. lie coordinates the activities and program and authorities over quality assurance are adequately described in the Final Safety Analysis Report (FSAR) 1.4 " Identification of Agents and quality assurance during design, construction and certain phases o oper-Contractors," 13.1.1.5 " Construction and Construction / Operation In- ation to maintain a consistency of the program and a continuity o le etTort. The YAEC Construction Quality Assurance hianager, who re-terface," and { 17.1 " Quality Assurance During Design and Construc-tion," which includes a ports to the Director of Quality Assurance, is responsi 17.1.1.l(a) on " Authority, Responsibilities, tion and supervision of work performed by the Construction Q y and Duties." (See Appendix A attached hereto (not published)). From Assurance Group staff, at both the corporate ofhce and at t e p , these descriptions, it is clear that QA personnel within YAEC who are and by consultants hired to supplement this staff. , ite p responsible for establishing and implementing the Seabrook QA Program (llome Office QA Engineers) perform staff functions, i.e., deve p report to the YAEC Construction QA hianager. The YAEC Construction programs and procedures, review technical and QA documenta ion su QA N1anager is assigned exclusively to the Seabrook project and is re-mittals, provide training and indoctrination and perform aud t an sponsible for interfacing with the New llampshire Yankee Division Vice surveillance functions internally as well as over contractors, construc-President in charge of Administrative Services. United Engineers and tors subcontractors and suppliers. Onsite personnel per rm Constructors and Westinghouse Electric Corporation QA Programs are functions, i.e., plan and develop verification procedures and contro s, extensions of the YAEC QA Program and have been reviewed and ac-perform surveillance activities over constructors and subcontractors an cepted by YAEC. YAEC maintains control of these and other contractors review contractor and subcontractor implementing procedure by means of audits, surveillance, surveys, investigations and reviews. In YAEC has delegated to the engmeer-constructor, turn, YAEC is accountable to the New llampshire Yankee Division of and Constructors Inc. (UE&C), and to the nuclear steam system supp t-PSNil which is responsible for the construction of Seabrook Station. Westinghouse Electric Corporation-Water Reactor Divis s er The overall responsibility for all activities associated with Seabrook Sta- y (WRD), administration and execution of large portions of the Q tion resides with the PSNil President and Chief Executive Officer. Assurance Program associated with the design, prxurement an ins t of safety-related structures and equipment. 8 Letacr or January 31.1985to R.J Ilarnwn rrom D G te ti e r vendors and subcontractors who are responsible for safety-related ashed hereto as Appendix A (not pubhshedL acnhut eranwuitens the NRC stArrewew. at. 540 541 r , " .' s - ' '
- -~~ z.- - ;
" ' s, re rcquired to have quality tssur:nce pro- th t individu:Is immediately responsible for qutlity rssurance may be ac-g ams con ste i " f C.F.R. Part 50. Appendix countable to four different organizations. As the Staff concluded in Ap-B. The UE&C QA Prog a is e -
8n Pical Report No. UEC- pendix A, establishment of the New llampshire Yankee Division and TR-001. The WRD QA p . ibed in the Westinghouse the delegated responsibilities to this Division from PSNil have not dilut-WRD Quality Assurance Pla ( CAf -837 )- ed or weakened the previously approved QA Program for design and The YAEC Construction Qualit A n M n ger has direct com- construction. Therefore, the organization and the QA Program for munication with Westinghouse and U & ao gn an c nstmchon am accqtaW 6 me mmaining consmenn ao tivities. YAEC reviews and concurs with sli I "
- programs, plans, that are generated by UEAC* E M mn- De Petsn aNges dat me cMcMeiah d PNs b HanWm curs with the Westinghouse QA Topical ReF n nd reviews department Yankee Division are actually employees of, and therefore answerable to, procedures in the process of auditing Westin h us p mance, a different corporation, YAEC, suggesting that the Division is subordi-The contractors are responsible for th vi nd approval of their nate to PSNil in name only.
supplier and subcontractor qualit - I s. The adequacy of As was discussed earlier in this Decision, staffing of the 1)ivision by the contractors' reviews are veriDed y U i- nd/or surveillance. employees of YAEC would not be inappropriate ifit remained clear that The New flampshire Yankee Division V President of Administra- those employees were ultimately responsible to PSNil, as is in fact the tion and his staff maintain co nizan f nd evaluate the QA Program case. Indeed, given the explicit recognition by the Licensing Board of activities in the following manner: "# *""" # "" #" # " " "
- 1. Reviews and approves of the YAEC Quality Assurance Pro- operation, to be involved in the Seabrook project, such staffing is of gram. E " "" '
- 2. Participates in major QA decisions and # "" ""#E#" *
- 3. Receives copies of all YAliC audit p MS ( nternal and exter- and organizational freedom to supervise QA by becoming heavily indebt-naU pertaining to the Seab k pmject. Monthly he receives ed to its contractors and other creditors. Because of this heavy indebted-the status of outstand ng ms indicating the status of audit ness, the Petition alleges that PSNil is in no position to make objective findings and independent decisions where safety and financial considerations are
- 4. Participates on a quartert b n oppos on a g n s wedch in mat h n YAEC to assess YAEC pe forn an e in ". no instance given where such a compromise has actually occurred. Al-tractor activities.
- 5. Participates on a quarterly b i in s I cted mternal audits of though one could argue that PSNil's position may be weakened by its Y AEC to assess Y AEC f( "" "'
- 6. Performs management aud, s f Y EC c nstruction quality that it does properly balance safety and financial considerations in the ex-assurance performance. The n gemem audi's are conducted ecution of its Quality Assurance Program. It should be emphasized that annually using approved chec i " "" "" " " #
schedule assuring compliance with th " *"
- 7. Reviews quarterly evaluations of QA gram activities. that, in making difficult QA decisions, PSNil may be influenced by the
- 8. Receives copies of all YAEC sp ndence with contractor authority of the other owners to dismiss it immediately as manager of relating to QA Program activitic ' the Seabrook project. No specific instance of undue innuence is present-Organizational changes that cui n n" t n f the New llamp- ed in either instance.
shire Yankee Division reinfo P ili n that PSNil is responsible With respect to both of these concerns, the issues raised by the Peti-for the establishment and exe ut'i n f the Seabrook Quality Assurance tion are not unique to the Seabrook project. There may be differences in Program. " " " " "#
## " #P "" " "
As the above description of the current Qual " "" *# " # #" "E # for the Seabrook facility demonstrates, the lines o a ni ti n I author- meets NRC regulations is an industry-wide one. Financial considerations sty are clear and well defined and dispel the allegation of the Petition may make the potential more intense at Seabrook. But Petitioner points 543 5-12
C.F.R. l 2.206(c), a copy of this Decision will be Gled with th3 Secr:t:ry to no specines indiciting a problem in fact. The recent NRC Staff riview for the Commission,s review. of organizational changes indicates continued compliance with Commis_ sion regulations. Furthermore, NRC oversight of construction activities liarold R. Denton, Director including extensive field and corporate inspections has failed to identify OITice of Nuclear Reactor rny compromise by PSNII in the implementation of its Quality Assur~ Regulation cnce Program. The Construction Quality Assurance Manager and per-sonnel reporting to him have the authority to stop any operation found Dated at Bethesda, Maryland, being performed contrary to approved procedures, speciGcations, in. this 18th day of March 1985. structions or drawings. It is expected that all provisions of the Licensees' QA Program will be adhered to, including the exercise of stop work au- [A pendix A has been omitted from this publication but may be found thority when appropriate. Failure to adhere to the QA Program can NRC Public Document Room, 1717 11 Street, NW, Wash,ngton, i in resuh in NRC enforcement action, including civil penalties and orders. Failure to adhere to the QA Program would be a relevant consideration DC 20555.1 in the issuance of an operating license for Seabrook. These controls along with the inspection and surveillance activities of the resident inspector and NRC Regional ofGce provide the necessary deterrents to discourage abuse of the QA decision process. Recent Systematic Assessments of Licensee Performance by the NRC have recognized that management support of quality assurance remains a strong point in the construction of Seabrook Station. In recent NRC meetings with senior New llampshire Yankee Division management per-sonnel, PSNil has committed that such support of QA will continue. Finally, it should be noted that, during the suspension of construction and in accordance with the " Interim Agreement to Preserve and Protect the Assets of the Investment in the New llampshire Nuclear Units," dated April 27,1984, the Joint Owners included QA and QC activities as one of the high priorities for the limited expenditures. CONCLUSION The Licensees' activities in the construction of the Seabrook facility are authorized under the construction permit issued for the facility. More specifically, PSNil continues in its role as managing agent solely accountable and responsible for design and construction at Seabrook. Furthermore, the QA Program at Seabrook which has been the subject of a recent Staff review, and ongoing inspection oversight continues to meet the requirements of 10 C.F.R. Part 50, Appendix B. The Petition has failed to raise issues which would warrant the relief requested, namely suspension of construction. Accordingly, the Petitioner's request for action pursuant to 10 C.F.R. { 2.206 has been denied as described in this Decision. As provided by 10 545 544
Cit 3 0 21 NRC 546 (1985) u-85 a* suance of a license for the operation of th:t facility.The actions request-ed are summarized as follows: UNITED STATES OF AMERICA e Investigate information system problems, including the con-NUCLEAR REGULATORY COMMISSION sistency of computer data systems, systems coding / coding maintenance, and related data retrieval;
- Investigate the lack of records for the as-built design of the GFFICE OF NUCLEAR REACTOR REGULATION facility electrical and instrumentation systems;
- Require the Detroit Edison Company (DECO) to perform addi-Harold R. Denton, Director tional tests to verify the adequacy of radwaste systems in view of modifications made to those systems, and provide proprie-tary information for the NUS Corporation portable radwaste
'" sydem b th Wedm pocesdng GW aM sM @ ash
*"*' ' Docket No. 50-341 "* "" * "# ## " " I #
(10 C.F.R. I 2.206) prior to licensing to ensure comphance with NRC fire protec-tion guidelines; and THE DETROIT EDISON COMPANY, Confirm the adequacy of the General Electric Mark I contain-et af. ment design. (Enrico Fermi Atomie Power Plant, Uni? 2) lly letter dated March 11, 1985, the Director acknowledged receipt of Mareh 20,1985 the petition and informed the Petitioner that her request was being ad-dressed by the NRC Staff. DECO provided its comments on the petition in it's letter dated February 22, 1985. A notice that the petition was The Diiector of Nuclear Reactor Re 1e quest filed by being reviewed was published in the Federal Register (50 Fed. Reg. the Safe Energy Coalition of Michi8an ih 4 s d imnation of an 10,561 (Mar.15,1985)). The NRC has since completed its review of investigation and formal proceedi n dequate resolution of cer- the areas of concern identified by the Petitioner, and for the reasons tain safety issues prior to issuance of an operating license for Fermi-2. stated in this Decision, the petition is denied. TECIINICAL ISSUES DISCUSSED llACKGROUND Emergency response information system, discrepancies between draw- * ""' " "'*
" "# "Y ings and as-built systems, radwaste systems, fire protection, Mark I con- 87, issued by the Atomic Energy Commission (predecessor to the Nucle-tamment design.
ar Regulatory Commission) on September 26, 1972, authorizing con-struction of the Fermi-2 facility, located on the western shore of Lake
,n nc wn wn , nr e un , c gan. In Oct&r DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206 1974, DECO submitted an application for an operating license for Fer-mi-2. The application was docketed on April 4,1975, and the operational s fety and environmental review initiated by the NRC Staff at that time.
fly petition dated January 28,1985, Jennifer E Penten llearings n the operating license application were held before an of the Safe Energy Coalition (hereinafter referred to as the P t t on ' " ' " " *
^' * ^ " ""* "E
SECO) requested pursuant to 10 C.F.R. f 2.206 that the Director of the "'"'* "" " " "E * ' Office of Nuclear Reactor Regulation take specific action to investi ate several areas of concern with regard to the Fermi-2 facility, prior to is-
' #N' '
5 16 547
. ~ , - _ . . -
- 6. __
In addr:ssing each area of concern presented in the petition which fol- NRC Response
, portions of the petition are excerpted followed by the NRC Hnd- The Emergency Response Information System (ERIS) is a computer-ings and determinations on each concern. based data acquisition and display system. ERIS prevides two major functions: (1) display of plant parameters to allow rapid and reliable as-(I) Computer Systems sessment of the safety status of the plant (SPDS), and (2) display of meteorological and radiological information to allow appropriate imple-Statement ofConcern Information systems at Fermi-2 are " awful" d " " "
have been in contact with. Consistene h #" "' " " "' their coding has not been maintained h " has not been consister' with the codes sed f f ndmng documents. or system control funcuon.' There is difHeult ,. here has not been time to fix The Emergency Response Information System and the Safety Parame-these problems T - tr ay s m are n t requ to k operanonal at tk nme a nucb uce personnel that take c re f a1d c lat n and vaults. Further allega- ar plant is issued an operating license. Supplement I of NUREG-0737 tions by our sources reveal that despite the Construction Team Assess- (which proposed the requirement) provides that the schedule for the sys-con ucted m the Summer of 1984 by Duke Power, the tems will be established on a plant-by-plant basis. p em o ow long it takes to retrieve the documentation has not bean The ERIS/SPDS is not necessary for the safe operation of the plant, sse at Fermi-2. Retrieval of information for many critical parts of but would be used to display plant data and prepare radiation dose assess-
,s not available at all and could take ments in the event of an accident at the plant. These functions will be ac-days to ret i v . complished by other computer-based systems and manual calculations In addition to the above m. formation the following documentation is until the ERIS/SPDS is operational. These interim measures are similar e on this matte.: In an October 6,1984 letter (EF-72264) from to those in use at many operating nuclear power stations. The adequacy yne ens, Detroit Edison's Vice President, Nuclear Operations, to of Detroit Edison's interim measures was demonstrated in two full-scale oung lood, Chief of Iicensing at the NRC, Branch 1, the emergency exercises, the most recent of which was held June 26-27, e an prob! cms of the Emergency Response Information System 1984. DECO's completion date of December 31,1985, is within the en-an he Safety Parameter Display System (SPDS) are described. velope of the completion dates found acceptable by the NRC for operat-
, e automated data acquisition system provides data for the ing nuclear power plants and plants under construction.
an r the dose assessment function. The SPDS is a primary func- The Stafl's review of the Emergency Response Information System's p h ns smel. These systems electroni- SPDS function is ongoing. The Staff has reviewed Detroit Edison's cally interface many plant systems. The schedule for acceptance of Safety Analysis regarding the Fermi-2 SPDS and concluded that it is ac-ant systems has been delayed according to this letter. June ceptable for the utility to continue implementing its SPDS Program. If,
" P t d ,mplementation i date. But in a December 12, during its review of the Fermi-2 SPDS, the Staff identifies a significant 1984 letter (El 7 64 om Wayne Jens to T.M. Novak, NRC Assistant deficiency in the expected performance of the system, the NRC will Die b Licensing, in Attachment C, it is indicated the ERIS/SPDS direct DECO to make appropriate modifications to the Fermi-2 SPDS.
n ate has been changed to December 1985. The other ERIS functions (dose assessment and meteorological moni-i nal and functional toring) will be revised-as necessary after the ERIS is fully implemented. in a hight autom d nuc e r p an N E '073 , S ppl ment I sup- That evaluation will be done under the Emergency Response Facih, ties ports the need for th U be thoughly vestigated m and resolved Appraisal Program conducted by the NRC OfHee of Inspection and En-before fuelloading. forcement. The Petitioner also raised a concern relative to the reliability of data retrieval. This matter is addressed in the StalTs response to Concern (2) which immediately follows. 548 549 i
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(2) As-Hadh Desigm Duke Power Company acting as an independent reviewer, also identiGed Statement o/ Concern Gndings in these areas.2 On February 16,1985, DECO identified the as-built versus design matter as construction deficiencies to the NRC in ac-in the SALP #5 Report (Systematic Assessment of Licensee Perform- cordance with 10 C.F.R. l 50.55(e). These deGeiencies were only related ance) issued recently, the problems of lack of records for the as-built to instrumentation and control and electrical areas of the plant, and they designs for the electrical and instrumentation systems are raised. Delays encompassed the problems identified by the NRC. The DECO report in fuel loading at Ferms-2 as of this date are contingent on the correction provided a description of the deliciencies, an analysis of safety implica-of this problem, tions, and a corrective action program. According to the Michigan Public Service Commission's (PSC) " Staff DECO's corrective actions concerning this matter were assessed vestigation into the Enrico Fermi-2 Nuclear Project" February 1984, during NRC inspections, and were reviewed and discussed at two public erroit Edison's internal audits showed that there have been serious meetings held at the Fermi-2 site on February 13 and 20,1985. As a problems with document control, inadequate paperwork associated with result of these efforts, the NRC StatT concludes that the corrective construction and no adequate control on the design process. Throughout action program set forth in DECO's { 50.55(e) report, as revised in sub-the oject several thousand design changes have been made according sequent correspondence between Deco and the NRC, is adequate to resolve this issued The NRC conducted further inspection efforts at These criticisms from the Michigan PSC staff have raised our concerns Fermi-2 and concluded that the corrective actions necessary to support that her areas m addition to the electrical and instrumentation systems issuance of a license permitting fuel load and low-power testing were ad-8 y the SALP Report could be problematic. Sources at the equately implemented. The remaining issues will be completed as re-plant have told us that documentation is not there for many systems quired by conditions to the operating license. t at underwent design changes over the last 15 years.These sources in- The Petitioner asserts that further investigation was needed into other dicate documentation was not recorded or it was lost. areas besides electrical and instrumentation to confirm that all records I urther investigation into other areas besides electrical and instrumen- and documentation of design changes have been completed properly and ration for conGrmation that all records and documentation of design fully. As-built problems of the magnitude of those found in the electrical
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changes has been completed properly and fully. Because of the alleged and instrumentation areas have not been identified during NRC inspec-problems mentioned earlier m Matter No.1, that is with the coding, tions of other plant areas. In those instances where the NRC found prob-mdexing and retrieval of information from the plant's data base sys- lems in the mechanical, piping, piping support, and structural areas, tems, the Safe Energy Coalition would like your office to investigate those problems were analyzed and satisfactorily resolved without requir-how safety issues in Nos. I and 2 interface. The total picture must be ing hardware modiGcations. The problems in those areas were judged to be isolated cases and not indicative of the problems uncovered m the electrical and instrumentation areas. The NRC Staff, therefore, did not NRCResponse require the scope of DECO's corrective action program to be extended beyond the electrical and instrumentation areas. The petition,s statement relating to the recently issued SALP 5 Design changes are not unusual at a nuclear plant, and in fact, provi-Report (Systematic Assessment of Licensee Performance) identifying sion; must be in place for an orderly implementation of proposed problems with the as-built plant versus the design in the electrical and changes. Changes occur as a result of many reasons including construc-instrumentation systems is correct. That SALP assessment was based on tion problems, and thus Geld changes are made. These changes are sub-NRC inspections which identified violations of NRC regulations and sequently reviewed to ensure that the Gnal as-built conGguration satisfies other Detroit Edison Company (Deco) commitments to the NRC; sub-sequent NRC inspections found additional problems in these areas.' The Duke Construction Appraisal Team (CAT) evaluation performed by the Ser Duke Power Report,l'ernu-2 hnal Assessrnent orConstrucuon. dated July 1984 3Scr NRC Reg on 1111cuers to DLCo dated March 8 and 13.1985, and DrCo Letter to the NRC I S<r NRC in rechon Reports 50-341/84m -p. -4$. -49. -50. 57. -62, -68, and 85 44 09. Region lit dated March 9.1985. 550 551
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the Michig n Public Service Commission StalT investigation in F:bru-ry design crit:ria. For F;rmi-2, the NRC does not have a conc:rn related 1984 for ignoring " numerous elemintary design considerrtion rnd basic extremely poor piping ar-
""*' laws of physics." Some of these included:
The Petitioner questioned how it's Concern Nos. I and 2 interface rangements, locations of valves and motors, disregard for radiation expo-The issue associated with the as-built plant versus the design in the sure levels, unnecessary and excessive person power, etc. The report fur-slectrical and instrumentation systems is not related to the problems al. ther states that modifications to the Radwaste facility have been exten-leged m the area of computer systems (Concern No.1). The computer sive including the rip out of large components, piping, and relocation of systems can be divided into two separate areas as follows: equipment, etc. Inherent features of the original design will continue to
- f. The computer and associated ERIS-SPDS system and, inhibit efTicient operation of the radwaste system."
- 2. The Automated Records Management Systems (ARMS) The Safe Energy Coalition believes it is the responsibility under the
,'t he ERIS-SPDS is a nonsafety-related system used as an augmented Atomic Energy Act and Code of Federal Regulations to ensure the safe and during operations and reactor transients. The ARMS system is an operation of this facility. This, in our opinion is not the case at this time integral part of DECO's records management system. The NRC identi- We request further investigation into this matter and insist on making fied deficiencies in this system as early as 1979. Subsequent inspections public the NUS Corporation's proprietary portable radwaste system to assess the performance of this system continued as part of the normal public has the right to know what systems are being used to protec i Ction program. The primary denciency ider.tified by the NRC was environment, health and safety.
,s failure to properly post design changes against drawings. DECO has taken corrective action in the intervening period which the NRC Staff found acceptable. The deficiencies identified in the system cited above are not related to the deficiencies identified saf ty- With respect to the SECO concern about the radioactive waste process-related electncal and instrumentation drawings and their representation ing systems not being fully tested and functional at the time of fuello o the as-built plant. the NRC is aware of this situation and considers it acceptable for licens-ing.* DECO previously informed the NRC that the permanent systems (3) Radwaste Processing System might not be available, prior to the start of fuelloading, and has subm ted descriptions of the temporary systems for" review 'and approval. The Statement of Concern " "
The Radwaste Processing System will not be tested and functional at "" ** "# "
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the time of fuel load according to two letters from Wayne Jens to H J ### " Youngblood, Chief of the NRC Licensing Branch No. I, dated October *** *'#* ##'# 11,1984 (EF-71992) and December 18,1984 (EF-72035). Detroit *' *
- Edison plans to use the NUS Corporation's portable radwaste system for e tenway mMcann pm b mW Wg MM y" k hquid and solid radioactive waste. Portions of the permanent facilit '"" " "4" #"#
mdicated in a December 12, 1984 letter (Wayne Jens to T.M. Novak) "'" I '" (EF2-72028-Attachment C) necessary to support the vendor radwaste " "*
- system are to be completed before initial criticality and the com let * " # E# "
system by " warranty run." in addition, Edison has no program for dis detailed plant-specific requirements. This review may require minor E" " posal of potentially radioactive oil. E" ## "*' #* #" * " E" in 1979, Detroit Edison engineers found serious design flaws with " Y * "" ' 4" almost every subsystem of the Radwaste Processing Facility at Fermi-2 in an April 1980 study by the NUS Corporation, " Report of Evalua-tions Enrico Fermi-2 Solid and Liquid Radwaste Systems," confirmed t at {the system as designed and installed was inoperable, ineflicient 4 su n s i 2.i .no it.2.3 or supplemem No. 5 to the Ferme2 stR. Mmh 19 li unsafe, and uneconomic." Edison engineers were further criticized by 553 552 g q ,3- D e** s 4 & a was
s Iling an a r SECO has also requested the NRC m:ke tvailable to the public, the To allow D'troit Edison the option to dela NUS Corporition (NUS) propri:tiry r_ port, describing the portable rad- shutdown system until the first fuel outage waste system to be used at Fermi-2, in order to be convinced of the the length of time Edison has had to rerou safety of that system. The system in question is described in a nonpro- implement an alternate shutdown capability elsewher ,n eo prietary report which has been filed in the Public Document Room and The Safe Energy Coalition vehemently oppose docketed since May 1983. The NRC finds that this nonproprietary of NRC strict standards for fire protection knowing report contains suf0cient information on the portable system design to that fires pose at nuclear plants, especia ly wt assess its safety and reliability implications. Nonetheless, the NRC has without the alternate shutdown system in place. offered to make arrangements with SECO through Ms. Puntenney in the M.D. Lynch summary docun ent o which will permit SECO to review the requested proprietary information Edison supplied the NRC with a p; under an appropriate protective agreement. Fermi-2. In this summary, Edison's know g With respect to SECO's concern relative to contaminated oil, DECO of March 22, 1975, was well documente y has not proposed a specific program for the disposal of possibly contami- groups and task forces formed to de 77 nated oil at the Fermi-2 facility. A similar situation exists at other operat- i-During this time Detroit Edison had g ing nuclear power plants. This is not unusual because contaminated oil for financial reasons and to catch up on may be safely stored on site for extended periods of time prior to dis- Regulatory Guides were issued m 19 an posal. Prior to any removal, the method for disposal must be approved released in 1979, followed by NRC regulations, A pendix R in 1980. _ by the NRC. For example, if the oil is to be solidified and shipped for DECO has had ample time to implemen disposal, the solidification must be performed in accordance with NRC- fire protection that includes the most critical comp approved processes, and the product must meet the applicable Commis- shutdown capability. sion regulations. As such, the absence of a DECO commitment at this We request that full mplementation, i prior to fuel load and low-power time does not constitute or indicate either a lack or disregard for public operation, of the shutdown system be require . , safety or a failure to meet NRC requirements. explanation, and justification for NRC approva Lastly, the design deficiencies alluded to by SECO were identified in a y tion systems is in order. We regard this as a DECO internal review. Subsequently, DECO has modified the system. would like public hearings called under i 2.202 (Show Cause . The modified system was reviewed by the NRC and found to meet all applicable regulatory requirements.5 Nonetheless, as requested by SECO, the NRC conducted a further review of the radwaste systems and NRC Response has realTirmed its prior findings on the radwaste system design; i.e.. The alternate shutdown system propose when fully constructed and made operational these systems will meet all the NRC,6 will allow the reactor to be main g regulatory requirements and protect the health and safety of the public. condition from outside the control rooin n g9 nre, e alternate shutdown are damaged m the con ol roo a ed and operational no later than (4) Fire Protection system is reqsed to December 31, 1986; it may be fully operational as early as October Statement o/ Concern 1985.7 llowever, redundant s tdown systems are air dy in place and ,e_ The Safe Energy Coalition is still not satisfied with the NRC's discre- with the separation p qu i ere reasonable assurance that at least tionary decision to allow Detroit Edison to load fuel and operate Fer- own systems will be available in the event of a con-mi-2 without an alternate shutdown system m place. n i io ofsh trol room fire. 6 sec y 9 5 i of suppicment No. 5 to the fermi-2 sER. 5 Scc sy 11. "Radioxuve wa,se Management," of supplemens No. 3 to the Fermi-2 stR. 1 see trense No. NPf 33.M""" 2 U 554 555
(5) G:ner:1 Electric Mark I Holling W ter reactor
,The delay in implementing the citernate shutdown syst;m occurred in and Cont inment mid-1984 when it was determined that the electrical panels and ventila, e des gn a proved in the upteme tN .2t Fer i 2 SEI and Serious problems have become apparent with this older, obsolete reac-cause the as-insta!!ed fire protection features in the relay room were con. for design, particularly in regards to the constructability and accessibility sidered marginal.: DECO proposed to provide an alternate shutdown and the ability of the containment to hold in a serious accident. Design capability mdependent of the control room and the relay room which modifications had to be made at Fermi-2 to the torus and the drywell would physically and electrically isolate these areas.'The NRC concluded steel. The small containment, defects in the pressure-suppression that this new design is more desirable than the original design, and
, system (torus) and the volumes of possible failures for this type of reac-granted a delay m implementation while imposing interim compensatory tor cannot be, in our view, ignored in licensing this plant. It should not measures.m be put in the " generic, unresolved" category of the NRC to be solved The NRC has accepted DECO's proposed schedule for operability of the independent alternate shutdown system, with the provision that sometime in the future.
in the book, the Occult of the Aromu by Daniel Ford, as early as 1971, compensatory measures be taken in the interim. These compensatory the Atomic Energy Commission (AEC) through its safety analysts pro-measures include the development of procedures to maintain the plant posed to senior AEC officials the banning of "the pressure-suppressio i in a safe shutdown condition in the event of limited fire damage in the containment scheme" of which Fermi-2 is included. Technical analysis control room. These procedures must be fully tested and the plant was never challerged and no objections. were raised on scientific operating personnel trained in the use of the procedures prior to initial grounds. The reply by Joseph llendrie, Senior AEC official, was the criticality. Compensatory measures have also been taken to limit the fire following: damage m the control room to one electrical division. These measures include a lire watch in the control room and modifications to the control the acceptance of pressure-suppression containment concepts by all elements of the room panels to hmit fire darmge to one panel. The compensator to ""**' neu, includuig Regulatory and the RRS,is Grnity enibedded s the con-ventional wisdom. Reversal of this hallowed pohey, particularly at this time, could dures and equipment have been reviewed pd a pt d by the NRC." weit be the end of nuclear power. It would throw into question the continued opera-The alternate shutdown system and th i tenm compensatory measures
. , tion of ticensed plants, would make unheensable the G.E. and Westinghouse ice-re discussed in detail in ! 9.5.1 and Appendix E of Supplement 5 to the condenser piants now in review and would generally create more turmoil than I can Fermt-2 SER.
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Based on DECO's schedule for operability of the afternate shutdown .. system, and on the adequacy of the interim compensatory measures to This matter has been ignored for too long. The Safe Energy Coalition be implemented, DECO meets the requirements for fire protection as re- requests resolution of this generic issue and guarantees from the NRC quired by General Design Criterion 3 of Appendix A to 10 C.F.R. Part that Fermi-2's reactor design and operation will not either endanger
- 0. public health and safety, increase worker exposure, or cont.sminate the surrounding environment. More thorough investigations and hearings are, we feel, warranted. Fuel loading should not be expedited because o lack of solutions.
NRC Response The Mark I containment design, which is used in the Fermi-2 facility, represents a containment concept which has evolved into a proven de-g, t t^ or ^rpendi E io suppsemeni No. s crihe rermi-2 sta NSec (( vil.C and viLD or Appendia E to supplement No. 5 or the Fermb2 sER-12 Correct hate is Cd of the Arom-88 Seri vil.D or Appendix E io supplemeni No. 5 or the Fermb2 sER. 557 556
sign. This evolution has spanned a 20-year period of oper ting experi. M:rk 1 Containment Long-t rm rc: an ," d't:d July 1980, rn cv:lua-ence rnd testing. With the completion of each test program, whenever tion of the test pro am esu c de w th n the r: port w:re accept-ance criteria that, i ouM result in an acceptable containment the results showed them to be necessary and whenever indicated by operating experience, additional design specifications have been added design. DECO demonstrated comp 1 ance with these criteria in its plant-o nd the Fermi-2 report acceptable." to the Mark I design. DECO has incorporated all of these changes into specific analysis report. the containment design for the Fermi-2 facility. At the present time, With this satisfactory Gnding, the NRC concludes that the containment there are no ongoing generic test programs for the Mark I design. 's ject to satisfactory completion of design for Fermigitem' the confirmatory is accept,ted to in-plant testing of the safety netief All of the test programs have been completed with the exception of plant-specific conGrmatory testing of the safety relief valve quencher valves, with no ou nding unresolved safety issues. device." DECO is required to complete this test program prior to start of the second cycle of operation, as stated in Supplement No. 5 to the CONCLUSION Fermi-2 SER." The results of the generic test programs have been reviewed by the NRC and acceptance criteria published in several For the reasons stated in the NRC responses above, the Petitioner's NUREG reports as identified below. Therefore, the NRC has concluded iequest has been denied. that there are no outstanding generic safety issues associated with the - A copy of this Decision is being Gled with the OfGce of the Secretary Mark I containment design as used in the Fermi-2 facility. ' of the Commission, for the Comm ission's review n accordance withg10 it is true, as the Petitioner indicates, that a number of safety issues C.F.R. l 2.206(c) of the Commission s regu had been raised since the Mark I concept was first developed for the ays become the Gnal action of the Commission 2 g flumboldt Bay Nuclear Power Plant in the period 1958-1962. Ilowever, suance unless the Commission, on its own m , at no time was it shown that the containment would fail as a result of the decision within that time. the various concerns; modifications have been recommended and imple-mented at the Fermi-2 facility and other plants to maintain acceptable design margins. These concerns were documented in a memorandum liarold R. Denton, Director written by Dr. S.II. Ilanauer in 1972. Dr. llanauer at that tirr.e was technical advisor to the AEC's Director of Regulation. It is believed that OITice of Nuclear Reactor Regulation the references in the SECO petition, to concerns stated by senior AEC ofGcials, were identiGed in the above-mentioned memorandum. These concerns were also the subject of considerable interest by several mem. Dated at Bethesda, Maryland, bers of the U.S. Congress and the public during 1978. To address the this 20th day of March 1 . issues cited above ynd to summarize the technology of water suppression containments, including the Mark I design, the NRC issued NUREG-0474 in July 1978. In the judgment of the NRC, NUREG-0474 demonstrated that: (1) the safety issues had been satisfactorily identi-Ded; (2) the licensed BWR facilities could withstand the containment loads associated with these concerns; and (3) a comprehensive program of tests was under way to investigate the details of the pressure suppres-sion pnenomena. Since the issuance of NUREG-0474, the ongoing testing programs have been completed. The NRC reported in NUREG-0661, "SER on U Sn { 3 8 I or Suppiement No. 5 to the Ferm62 sER, and License No. NPF.33. Condaum 2 c(4). Hlba l$Se, 3 3 I in both supplement Nos. 3 and 5 to the Fermb2 sER. 558 559
NUREG.0750, yng,23' y 3 NUCLEAR R, EGULATORY COMMISSION ISSUANCES MARCH 1985 Pages 471559 (0l Il
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