ML20137A723
| ML20137A723 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 11/22/1985 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-286 OL, NUDOCS 8511260084 | |
| Download: ML20137A723 (79) | |
Text
h Os UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION eft'g ;
pg tr, Dp23 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL'. BOA 8/g, s':
In the Matter of ) .
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CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON SAFETY CO'!TENTIONS Thomas A. Baxter, P.C.
John H. O'Neill, Jr., P.C.
Pamela H. Anderson Michael A. Swiger SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Samantha Francis Flynn Dale E. Hollar CAROLINA POWER & LIGHT COMPANY Counsel for Applicants November 22, 1985 0n11260004 051122 PDH 0
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UNITED STATES OF AMERICA '$@ I NUCLEAR REOULATORY COMMISSION pg '2' (eg BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL:' BOARD g re, p i Og \
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CAROLINA POWER & LIGHT COMPANY ) l and NORTH CAROLINA El. STERN ) Docket No. 50-400 OL :
MUNICIPAL POWER AOENCY )
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(Shearon Harris Nuclear Power ) r Plant) )
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APPLICANTS' BRIEF IN REPLY TO l INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON SAFETY CONTENTIONS l
l Thomas A. Baxter, P.C.
John H. O'Neill, Jr., P.C. l Pamela H. Anderson Michael A. Swiger SHAW, PITTMAN, POTTS & TROWBRIDOE l Richard E. Jones ,
Samantha Francis Flynn "
Dale E. Hollar i
CAROLINA POWER & LIOHT COMPANY ,
Counsel for Applicants November 22, 1985
TABLE OF CONTENTS Page(s)
TABLE OF AUTHORITIES.......................................... 111 COUNTERSTATEMENT OF THE CASE.................................... 1 ARGUMENT........................................................ 3
!. The Licensing Board Correctly Decided Joint Contention I on the Basis of the Overwhelming Weight of the Evidentiary Record, and Properly Ruled on the Joint Intervenors' Request to Subpoena a Witness and on the Joint Intervenors' Motion to Roopen the Record........................... 3 A. I n t rodu c t i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. The Evidentiary Record........................... 5 C. Joint Intervenors' Request to Subpoena the Administrator of NRC Region 11.............. 13 D. Joint Intervenors' Motion to Roopen the Record.......................................... 19 II. The Licensing Board Did Not Err In Finding That 1 The Thermoluminescent Dosimeters ("TLDs") And '
Measuring Equipment And Processes To Be Used At The Harris Facility can Measure Occupational l Radiation Doses With Sufficient Accuracy To l Comply With NRC Regulations.......................... 26 '
!!!. The Licensing Board did not Err in its Rulings Rejecting as Inadmissible Eddleman Proposed contentions 48 through 51, 65A and B, and 132 (in part)............................................ 30 A. Introduction.................................... 30 B. Eddleman 48 Through 51.......................... 32 C. Eddleman 65A and B.............................. 33 D. Eddleman 132 (in part).......................... 37 E. Conclusion...................................... 42
Page(s)
IV. The Licensing Board Did Not Err And Applied The Correct Legal Standard In Dismissing Eddleman Contentions 11, 29, 45, 64(f), 132 And 132C(II)
And Joint Contentions V and VI On Applicants' Motions For Summary Disposition...................... 42 A. Introduction.................................... 42
- 3. Eddleman Contention 11.......................... 46 C. Eddleman Contention 29/30....................... 47 D. Eddleman Contention 45.......................... 50 E. Eddleman Contention 64(f)....................... 52 F. Eddleman contention 132......................... 54 G. Eddleman Contention 132C(II).................... 57 H. Joint Contentions V and VI...................... 59 V. The Licensing Board Did Not Err in its Decisions, Based Upon the Record Compiled at Evidentiary Hearings, Resolving Eddleman Contentions 90 and 65 in Applicants' Favor.......................... 61 A. Eddleman contention 90.......................... 61 B. Eddleman contention 65.......................... 64 CONCLUs!oN..................................................... 68
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TABLE OF AUTHORITIES CASES: Page(s)
Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), LBP-85-28, 22 N.R.C.
232 (1985)............................................ passim Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), LBP-85-5, 21 N.R.C.
410 (1985)............................................. 2,49 Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1 and 2), L8P-82-119A, 16 N.R.C. 2069 (1982)................... 4,32,36,50 Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1 and 2), L5P 27A, 17 N.R.C. 971 (1983)................................ 39 Cleveland Electric illuminatina Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 N.R.C. 490 (1985).............................. 14,43 Commonwealth Edison company (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 N.R.C. 591 (1984)..................................... 29 commonwealth Edisen Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 N.R.C.
1400 (1982).............................................. 60 Duke Power Company (Catawba Nuclear Station, IJnits 1 and 2), CLI-83-19, 17 N.R.C.
1041 (1983)........................................... 35,36 Duke Power Company (Catawba Nuclear Station, Unita 1 and 2), ALAB-355, 4 N.R.C. 397 (1976)................................................. 9,18 Duke Power Com.pany (Catawba Nuclear Station, 1 Units 1 and 2), ALAB-813, 22 N.R.C. 59 !
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(1985)................................................ 43,44 1
Houston Liahtina and Power Company (Allens i Creek Nuclear Generating 8tation, Unit 1), ALAB-590, 11 N.R.C. 542 (1980)....................... 44
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CASES: Page(s)
Houston Lighting & Power Company (South Texas Project, Units 1 and 2),
ALAB-799, 21 N.R.C. 360 (1985)............................. 9 Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N.R.C. 320 (1978).................................................... 19 Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 N.R.C. 5 (1985).................. 19,20 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-9, 21 N.R.C. 1118 (1985), aff'd Three Mile Island Alert v. NRC, 771 F.2d 720 (3rd Cir.
1985)...................................................... 9 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A.E.C. 423 (1973)....................................... 45 Pacific Can and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 N.R.C. 361 (1981)................................................... 20 Philadelphia Electric Company (Limerick Generating l Station, Unita 1 and 2), ALAB-806, 21 N.R.C.
1183 (1985)............................................... 37 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2 ), ALAB-461, 7 N.R.C. 313 (1978)..................... 43 Public Service company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C. 775 (1979)..................................... 20 Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31, 12 N.R.C. 264 (1980)......................................... 45 Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-463, 7 N.R.C. 341 (1978).............................. 16,62,63,64
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1 CASES: Page(s)
Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C. 1167 (1983)........... 37 Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 N.R.C. 335 (1983)...................................... 29 REGULATIONS:
10 C.F.R. l 2.206............................................. 54 10 C.F.R. I 2.714.............................................. 45 10 C.F.R. I 2.714(a)(1)................................. 35,36,37 10 C.F.R. I 2.714(b)........................................... 30 10 C.F.R. 6 2.720(h)(2)(i).................................. 13,16 10 C.F.R. l 2.749............................................. 45 10 C.F.R. I 2.749(a)........................................... 53 10 C.F.R. $ 2.749(b)........................................... 45 10 C.r.R. 5 2.749(d)........................................... 44 10 C.F.R. I 2.758.............................................. 29 10 C.F.R. I 2.760a............................................. 47 10 C.F.R. I 2.762(c)........................................... 2 10 C.F.R. I 2.762(d)(1).................................... 30,43 10 C.F.R. I 2.762(g)........................................... 30 10 C.F.R. I 9.11(c)(3)........................................ 25 10 C.F.R. Part 50, Appendix I.................................. 48 10 C.F.R. I 50.54(m)(2)(1)..................................... 57 10 C.F.R. I 50.54(m)(2)(iii)................................... 57 49 Fed. Reg. 1,205 (January 10, 1984)......................... 27
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I 49 Fed. Reg. 50, 189 (Dec. 27, 1984)........................... 20 50 Fed. Reg. 45,012 (October 29, 1985)........................ 27 MISCELLANEOUS:
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-3, 13 N.R.C. 452 (1981)................................................. 44,60 U.S.N.R.C., Evaluation of Water Hammer Occurrence in Nuclear Power Plants, Technical Findings Relevant to Unresolved Safety Issue A-1, NUREG-0927, Revision 1 (March 1984)....................... 50 U.S.N.R.C., Generic Letter 82-28, Inadequate Core Coolings Instrumentation System (December 10, 1982)....................................... 55 s
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9 November 22,g4[985 UNITED STATES OF AMERICA
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD M,~.
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t In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
1 Plant) )
APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON SAFETY CONTENTIONS COUNTERSTATEMENT OF THE CASE On August 20, 1985, the Atomic Safety and Licensing Board's Partial Initial Decision on Safety Contentions was served upon the parties to this proceeding. See Carolina Power & Light Company
-(Shearon Harris Nuclear Power Plant), LBP-85-28, 22 N.R.C. 232 (1985). On August 31, 1985, the Conservation Council of North
- Carolina ("CCNC"), Wells Eddleman and the Joint Intervenors1/
-(collectively referred to herein as "Intervenors") filed a notice of appeal. On October 8, 1965, those parties filed " Appeal from 1
Partial Initial Decision on Management Capability and Safety Con-tentions" (cited hereafter as "Intervenors' Brief"). Pursuant to ll/. The Joint Intervenors, consolidated only for certain conten-tions designated as " Joint Contention ," are Mr. Eddleman, CCNC, Chapel Hill Anti-Nuclear Group Effort (" CHANGE") and Kudzu Alliance.
I 10 C.F.R. 5 2.762(c), Carolina Power & Light Company ("uP&L") and North Carolina Eastern Municipal Power Agency (collectively "Ap-plicants") file this brief in reply and opposition to the appeal.
LBP-85-28 is the second partial initial decision issued by 1
the Licensing Board in'this operating license proceeding. Appeals are pending before the Atomic Safety and Licensing Appeal Board )
- from the Partial Initial Decision on Environmental Contentions, LBP-85-5, 21 N.R.C. 410 (1985). LBP-85-28 resolves all but three of the safety contentions that were heard in the Fall of 1984.2/
"The decision also has the effect of making other dispositive Board rulings on safety contentions -- i.e., rulings granting sum-mary disposition motions or rejecting proposed contentions -- ripe j for appellate, review." LBP-85-28, supra, 22 N.R.C. at 235.
- Six other contentions are pending before the Licensing Boar'd.
Hearings on one late safety contention, CCNC Contention WB-3 (Drug Abuse During Construction), were completed on November 12, 1985.
Two emergency planning contentions were heard in June, 1985, and
' hearings on a third were completed on November 5, 1985. The Li-censing Board also admitted two late-filed emergency planning con-tentions on November 5, 1985.
Intervenors' Brief includes argument on five questions presented, and Applicants reply below to the five arguments in the 2/ The three are Joint Contention VII (Steam Generators),
Eddleman Contention 41 (Pipe Hanger Welding) and Eddleman Conten-tion 116 (Fire Protection). The Licensing Board indicated that these contentions were not decided because of conflicting and higher priority assignments of the Board members. LBP-85-28, supra, 22 N.R.C. at 298 n.21.
I ordor presanted by Intervenors. Sections I, II and V of Interve-nors' Brief challenge the Licensing Board's decision on conten-tions which went to trial.3/ Section III appeals from Licensing Board decisions rejecting proposed contentions at the pleading stage, while Section IV of Intervenors' Brief appeals from the grant of motions for summary disposition on certain contentions.
ARGUMENT I. The Licensing Board Correctly Decided Joint Contention I on the Basis of the Overwhelming Weight of the Eviden-tiary Record, and Properly Ruled on the Joint Intervenors' Request to Subpoena a Witness and on the Joint Intervenors' Motion to Reopen the Record A. Introduction As noted by the Licensing Board, Joint Contention I focused upon whether the Applicants have " demonstrated the adequacy of i
their managing, engineering, operating and maintenance personnel to safely operate, maintain and manage the Shearon Harris Nuclear Power Plant." LBP-85-28, supra, 22 N.R.C. at 236. This so-called
" management capability" contention was the subject of an eight-day hearing before the Licensing Board in which the Applicants presented thirteen witnesses (including Carolina Power & Light Company's senior nuclear managers) who testified as to CP&l's 3/ Once again, as they did in their appeal of environmental de-cisions, Intervenors mischaracterize the standard of review ap-plied to licensing board evidentiary findings. See Intervenora' Brief at 16, 28. Applicants described the appropriate standard for Appeal Board review in Applicants' Brief in Reply to Interve-nors' Appeal from the Partial Initial Decision on Environmental Contentions, dated May 9, 1985, at 5-6.
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compatsnce to manngs the Harris Plant safely. In addition, two witnesses from the NRC Staff testified on Joint Contention I.4/
The Joint Intervenors, who sponsored Joint Contention I, did not present any witnesses at the hearing.5/ l On the basis of its review of the record, the Licensing Board resolved Joint Contention I in favor of the Applicants and ad-versely to the Joint Intervenors. LBP-85-28, supra, 22 N.R.C. at 235. After a detailed analysis of the evidentiary record, the Li-censing Board ultimately concluded that:
The Joint Intervenors' rather miscellaneous collection of evidence unfavorable to CP&L largely derives from events occurring in 1982 and earlier. This evidence has been su-perseded (substantially, if not entirely) by a sustained period of improved CP&L management performance since that time. The Applicants, l supported by the NRC Staff, have effectively I refuted Joint Contention I.
Id. at 257.
Intervenors have three basic complaints about the decision of the Licensing Board below with respect to Joint Contention I:
(1) That the " Licensing Board was arbitrary, capricious, and abused its discretion in finding that this contention was resolved 4/ Contrary to the implication in Intervenors' Brief at 6, Dr. Wilson did not sponsor Joint Contention I, but had his own management capability contention, which he withdrew during the discovery period. See Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C.
2069, 2087 (1982) (Wilson III); Tr. 777.
5/ The Joint Intervenors prefiled two pages of direct testimony by one witness, John Clewett. However, Mr. Clewett did not appear as a witness at the hearing pursuant to a stipulation among the parties whereby a revised version of a report attached to his testimony was admitted as Joint Intervenors' Exhibit No. 40.
Tr. 3608-10.
satisfactorily in the Applicants' favor" (Intervenors' Brief at 16);
(2) That the Licensing Board erred in denying the Joint In-tervenors' request to subpoena Mr. J. P. O'Reilly, Administrator of NRC Region II; and (3) That the Licensing Board erred in denying the Joint In-tervenors' Motion to reopen the record to include an affidavit by Mr. Chan Van Vo and certain other documents.
As will be discussed infra, a review of the facts and the law t
demonstrates that each of these bases for the Intervenors' appeal has no merit. The Licensing Board properly decided the issues concerning Joint Contention I, and its decision should be upheld.
i B. The Evidentiary Record That CP&L has the management capability safely to operate the Harris Plant is firmly established by the great weight of the evi-dance before the Licensing Board. Indeed, the key facets of Ap-plicants' case were not challenged by the Joint Intervenors either on cross-examination or by the introduction of contrary evidence.
The Intervenors' Brief largely ignores the array of evidence that I attests to CP&L's management capability. Their brief l
j mischaracterizes the testimony of Applicants' witnesses by im-plying that they only made unfulfilled promises "that they will do better." Intervenors' Brief at 12. The clear import of the testimony before the Licensing Board is that CP&L has already made significant improvements to its nuclear program that will enhance its capability to manage the Harris Plant safely and effectively.
Applicants' direct case consisted of the testimony of twelve individuals, all of whom were high level managers in CP&L's nuclear program.
To testify about CP&L's management philosophy and commitment regarding nuclear safety, the structure of CP&L's organization responsible for nuclear activities, and th'e manage-ment tools and programs in place at CP&L for carrying out their j
commitment to safe operations, Applicants presented a panel of four CP&L management officials: E. E. Utley, Executive Vice Pres-ident, Power Supply and Engineering; M. A. McDuffie, Senior Vice President, Nuclear Generation Group; Dr. Thomas S. Elleman, then Vice President for Corporate Nuclear Safety & Research;s/ and Harold R. Banks, Manager - Corporate Quality Assurance.2/
Three separate witness panels testified about the management organization and experience at each of CP&L's nuclear plant sites.
Mr. Patrick W. Howe, Vice President - Brunswick Nuclear Project, and Mr. C. R. Dietz, General Manager - Brunswick Plant, comprised the panel that testified as to the management organization and operating experience at the Brunswick Nuclear Project.g/
g/ In September 1985, Dr. Elleman resigned his position to re-turn to the faculty of North Carolina State University. In a man-agement reorganization effective October 5, 1985, the responsibil-ities of CP&L's Corporate Nuclear Safety and Research Department were divided and realigned.
to the Planning and Coordination TheDepartment. research section was transferred The Nuclear Safety Section and the Corporate Health Physics Section were combined with the environmental services section to form the Nuclear Safety and Environmental Services Department.
2/ See Applicants' Joint Testimony of E. E. Utley, M. A.
McDuffie, Dr. Thomas S.
Elleman and Harold R. Banks on Joint In-tervenors' Contention I (Management Capability), ff. Tr. 2452 (hereinafter "Utley, et al."), at 1-5.
g/ Applicants' Joint Testimony of Patrick W. Howe and C. R.
Dietz on Joint Intervenors' Contention I (Management Capability),
ff. Tr. 3124 (hereinafter " Howe /Dietz").
Similarly, Guy 3. Bactty, Jr'., Manager - Robinson Nuclear Project Department, and Richard E. Morgan, General Manager - Robinson Plant, testified about the management organization and operating experience of the Robinson Nuclear Project.9/ R. A. Watson, Vice President - Harris Nuclear Project Department, and J. L. Willis, General Manager - Harris Plant Operations Section, testified con-cerning the details of the organization which CP&L is establishing
, for the start-up and operation of the Harris Plant.10/
l A final panel testified concerning the technical training which CP&L provides its nuclear plant personnel. This panel con-sisted of James M. Davis, Jr., CP&L Senior Vice President - Opera-tions Support, and A. Wayne Powell, Director - Training - Harris Plant in CP&L's Nuclear Training Section.11/
4 The Licensing Board also heard the testimony of Sherwood H.
Smith, Jr., CP&L's Chairman / President. When the Licensing Board determined to grant the Joint Intervenors' request to subpoena Mr.
Smith, Applicants voluntarily produced him as a witness in the hearing.
Applicants submit that the testimony establishes that CP&L
. has in place a management organization, at both the corporate and l
9/ Applicants' Joint Testimony of Guy P. Beatty, Jr. and Richard E. Morgan on Joint Intervenors' Contention I (Management Capabili-ty), ff. Tr. 3120 (hereinafter "Beatty/ Morgan").
I 10/ Applicants' Testimony of R. A. Watson and J. L. Willis on l Joint Intervenors' Joint Contention I (Management Capability), ff.
- Tr. 3390.
l 11/ Applicants' Joint Testimony of James M. Davis, Jr. and A.
Wayne Powell on Joint Intervenors' Contention I (Management Capa-bility), ff. Tr. 3399 (hereinafter " Davis /Powell").
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l plant levels, that is properly structured to conduct the activi-3 ties necessary P.o operate its nuclear facilities safely. The l testimony also establishes that the management organization, at both the corporate and plant levels, is staffed with well-qualified individuals with extensive experience in the nuclear in-dustry.
In addition to Applicants' witnesses, the Licensing Board heard testimony from Paul R. Bemis, Section Chief, Projects Sec-tion 1C, NRC Region II, and George Maxwell, Senior NRC Operations Inspector at the Harris Plant.12/ The Licensing Board also relied heavily in its decision upon the four Systematic Assessment of Licensee Performance (SALP) reports issued by the NRC concerning CP&L.13/ See LBP-85-28, supra, 22 N.R.C. at 246-255; Joint Inter-venor Exs. 19-21 and SALP IV, ff. Tr. 3660.
Mr. Bemis reviewed CP&L's enforcement history and concluded that CP&L's management at Harris has the technical capability to safely operate the Harris Plant in conformance with NRC require-4 ments. He also-concluded that CP&L has evidenced a willingness and ability to take corrective actions for identified problems.
Bemis at 18-22.14/
12/ NRC Staff Testimony of Paul R. Bemis on Joint Intervenors' Contention 1, Management Qualifications, ff. Tr. 3660; Tr. 3647-3878 (Bemis and Maxwell).
13/ The Licensing Board and the Joint Intervenors incorrectly state that the SALP I appraisal period was April 1, 1979 to March ,
31, 1980. LBP-85-28, supra, 22 N.R.C. at 247; Intervenors' Brief l
, at 8. The utility-wide appraisal period extended from April 1, '
1979 to August 31, 1980; the appraisal period for the Brunswick Plant alone ended on March 31, 1980. Joint Intervenor Ex. 19 at i 1-1, 2-1.
1 14/ In its decision, the Licensing Board ntated that Mr. Bemis !
was an " effective witness," that the Board had "high confidence in l l
(Continued next page)
Applicants acknowledga that the past and present performance of CP&L's operating nuclear plants is important evidence in as-sessing CP&L's capability to manage the Harris Plant safely.15/
However, we disagree entirely with Joint Intervenors' character-1 ization of this evidence.
As the Licensing Board noted, the Joint Intervenors sought "to make selective use of [the] SALP reports in order to denigrate CP&L's management capability." LBP-85-28, supra, 22 N.R.C. at 248. The Intervenors continue this approach on appeal and extend it to other portions of the record. Intervenors' Brief, at 7-11, presents a. discussion of events and NRC violations primarily 1
involving CP&L's Brunswick Plant. This discussion (Continued)
Mr. Bemis, based on his technical expertise and extensive experi-ence with CP&L," and that he "was in e unique position . . . to assess Brunswick management in depth and to provide an objective viewpoint." LBP-85-28, supra, 22 N.R.C. at 245, 248 n.12, 257.
The Licensing Board also noted that the weight of other evidence, including Applicants' witnesses and the SALP report, supported Mr.
Bemis.- Id. at 245. As the trier of fact, the Licensing Board is, of course, in the best position to judge the credibility and de-meanor of all the witnesses -- including Mr. Bemis. For that rea-son, its evaluations of witness credibility are entitled to par-ticularly great deference by the Appeal Board. Duke Power Company (Catawba Nuclear Station, Units 1 and'2), ALAB-355, 4 N.R.C. 397, 404 (1976). In that respect, it should also be noted that the Li-censing Board stated it was " favorably impressed" with the appear-ance of CP&L Chairman / President Smith as a witness. LBP-85-28, supra, 22 N.R.C. at 238.
15/ In general, the question of an applicant's management compe-tence concerns whether it has the technical resources and capabil-ities to provide reasonable assurance that its plant will be oper-ated safetly. Metropolitan Edison Company-(Three Mile Island Nuclear Station, Unit No. 1), CLI-85-9, 21 N.R.C. 1118, 1136 (1985), aff'd, Three Mile Island Alert v. NRC, 771 F.2d 720 (3rd Cir. 1985); see also Houston Lighting & Power Company (South Texas Project, Units 1 and 2), ALAB-799, 21 N.R.C. 360, 370-71 (1985).
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mischaracterizes the record by selectively citing past problems and completely ignoring the substantial evidence in the record which demonstrates that improvements have been made at Brunswick and at CP&L's other nuclear plant sites. Applicants' witnesses Smith and Utley acknowledged and discussed candidly the fact that CP&L has experienced some difficulties in the operation of the Brunswick Plant in the past. Mr. Bemis also testified that in past years, performance at Brunswick was less than desirable.
Utley et al. at 4; Bemis at 15; Tr. 2551-2559 (Utley); Tr. 3780 (Bemis); Tr. 3928-29, 3932-35 (Smith); see LBP-85-28, supra, 22 l
N.R.C. at 241-44. The evidence clearly demonstrates, however, that the period since the beginning of 1983 has been one of sig-nificant improvement in the overall performance of the Brunswick Plant. These improvements include reductions in the number of Licensee Event Reports (LERs) reported, reductions in NRC notices of violation and the severity level of those issued, reductions in radwaste waste produced, reductions in radiation exposure to plant workers, improvement in plant systems and equipment, and overall improvement in employee morale and employee turnover rates. These improvements were attested to by Applicants' witnesses and by Staff witness Bemis, and are evidenced in the SALP IV. Utley et al. at 31-32; Howe / Diet: at 14; Bemis at 16-18, 23-24; see LBP-85-28, supra, 22 N.R.C. at 245, 252-53.
In reviewing the SALP reports, the Joint Intervenors virtu-ally ignore '.he fact that SALP IV contains very positive comments and ratings for each of CP&L's nuclear plants in all functional
areas.16/ SALP IV points to CP&L as "a significantly improved utility," identifies " major achievements" in a numerous operation-al areas, and concludes that there were no major weaknesses in the areas evaluated at any of CP&L's three nuclear plants. SALP IV at 3-7, ff. Tr. 3660; LBP-85-28, supra, 22 N.R.C.
at 252-53. This SALP report, which was the most current report available to the Licensing Board, covered the period from February 1, 1983 through April 30, 1984. The Licensing Board was fully justified in relying upon this most recent information in reaching its ultimate conclusion as to CP&L's management capability. Contrary to the Joint Intervenors' assertions, the SALP reports and the testimony of knowledgeable witnesses do not establish the existence of con-tinuing management problems at Brunswick or any of CP&L's other plant sites. Rather, the weight of the evidence establishes that CP&L has made substantial improvements in management of its plants and that this improvement has been sustained over time. Interve-nors' claim that "all of the substantial and uncontested evidence 16/ Apparently Intarvenors would have the Appeal Board discount the testimony of Mr. Bemis and the evidence in SALP IV on the basis of some alleged " conflicts" that suggest bias on Mr. Bemis' part. Intervenors' Brief at 11. There is no evidence in the record, whatsoever, to sustain these allegations. Further, as we discuss below in connection with the subpoena ruling, Intervenors
' attribute to Mr. Bemis a degree of responsibility for the SALP IV evaluations that does not exist. Intervenors also incorrectly state that "the only time that the Applicants' management capabil-ity has been positively evaluated has been by Mr. Bemis." In ad-dition to the SALP IV report, which is a collegial product of the NRC Staff, important elements of CP&L's management organization and performance have been positively evaluated in previous SALP reports, in a management audit by the consulting firm of Cresap, McCormick and Paget in 1982, and by the Institute for Nuclear Power Operations (INPO). Utley et al. at 31-34; Davis /Powell at 14.
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point to a lack of management competance [ sic] by Applicants," In-tervenors' Brief.at 16, is nothing more than empty rhetoric.
) Intervenors assert that the evidence before the Licensing
- Board shows "the. unwillingness of the Applicants to make any real changes in their management of their nuclear p'lants, even in face of massive civil penalties." Intervenors' Brief at 11. On the
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j contrary, the record is replete with evidence that CP&L has under-i taken very significant management organization changes to deal with problems that have arisen and to enhance its nuclear pro-gram.17/ These changes include instituting comprehensive improve-
, ment programs at both the Brunswick and Robinson plants, and as-signing a corporate officer or manager with the status of department head to each of the three nuclear plant sites to manage
, the activities at that site.18/ LBP-85-28, supra, 22 N.R.C. at 2
17/ Intervenors appear to suggest that CP&L's nuclear organiza-tion is deficient because it does not designate a single corporate officer as having overall responsibility for nuclear matters, with no ancillary duties. Intervenors' Brief at 8, 10-11. This issue was thoroughly addressed by the Licensing Board below. LBP-85-28, i supra, 22 N.R.C. at 239-40. The Licensing Board found that CP&L's i
organizational structure " appears to be reasonable and calculated to focus prompt, high-level management attention on safety con-corns as they arise." Id. at 240. While CP&L's nuclear organiza-
, tion does not literally comply with the NRC Staff's Standard Re-view Plan -- the provisions of the Standard Review Plan relating to this issue are not mandated by Commission regulations -- the Staff viewed it " acceptable." Id. at 239; Bemis at 36. Beyond repeating again that CP&L's structure fails to comply with the Standard Review Plan, Intervenors do not point to any record evi-dance that calls CP&L's organizational structure into question.
LBP-85-28, supra, 22 N.R.C. at 240.
18/ Intervenors claim that in 1981 CP&L.had "almost the identical management in place as today" in their nuclear program. Interve-nors' Brief at 8. The record shows that Mr. Howe assumed his po-sition at Brunswick in September, 1982. Mr. Beatty and Mr. Morgan t-I (Continued next page) ;
i
240, 244-45. See, e.g., Utley et al. at 12-15, 27, 30-31; Howe /Dietz at 27-28; Beatty/ Morgan at 20; Bemis at 16-18, 23-24; Tr. 2536-38, 2550, 2587 (Utley); Tr. 3464-66 (Willis); Tr. 3313 (Howe); Tr. 3858 (Bemis). The probative and substantial evidence in the record shows that th'ese changes have resulted in signifi-1 i
J cantly improved performance of CP&L's nuclear plants. Contrary to
! the Intervenors' claim, Applicants have relied not on unfulfilled i promises, but on accomplishments already made and programs already 4
underway. It is this evidence upon which the Licensing Board made 3 its decision.
1 a
Joint Intervenors' Request to Subpoena C.
the Administrator of NRC Region II i J
Intervenors assert that the Licensing Board erred in denying Joint Intervenors' request to subpoena Mr. James P. O'Reilly, then Administrator of NRC Region II, to testify at the hearing.19/ In-1 tervenors' Brief at 12-13. The record clearly demonstrates, how-ever, that the Licensing Board committed no error.
I k
Pursuant to 10 C.F.R. I 2.720(h)(2)(1), in a proceedinc in i
j which the NRC Staff is a party, the Staff makes available one or l-3 (Continued) assumed their present positions at Robinson in August and l September, 1983, respectively. Mr. Deitz became Plant General i Manager at Brunswick in January, 1981. Howe /Dietz at 2-3; i Beatty/ Morgan at 3-4.
, 19/ The Joint Intervenors made their request to subpoena Mr.
O Reilly in Joint Intervenors' Request For Subpoenas For Joint i Contention I (Management Capability, dated August 17, 1984 (here-inafter " Joint Intervenors' Request").
i 3
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more witnsasso, calcctsd by the Exscutiva Director for Operations, who will testify with respect to the issues to be heard. Section 2.720(h)(2)(i) expressly precludes a licensing board from compel-ling the testimony of any other NRC personnel by subpoena or otherwise, unless the requesting party makes a showing of excep-tional circumstances.20/ See Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 N.R.C. 490, 500-01 (1985).
Thus, the Joint Intervenors had the burden of demonstrating to the satisfaction of the Licensing Board that exceptional cir-cumstances existed which would warrant the extraordinary action of compelling the appearance of Mr. O'Reilly. The record demon-strates that the Joint Intervenors simply failed to carry that burden. On appeal, Intervenors allege that Staff witness Paul Bemis had a conflict of interest due to his role as an Inspection and Enforcement (IE) official at CP&L's nuclear facilities and his participation in the SALP review process. Intervenors' Brief at 12-13.
Intervenors disingenuously state that their reason for re-questing that Mr. O'Reilly be subpoenaed was to cross-e xamine him as to the possible bias of Mr. Bemis.21/ Id. at 12. 11 e Joint 20/ Even then, whether to grant the request is a matter for the licensing board's discretion. Section 2.720(h)(2)(1) provides that ". . . [t]he presiding officer may, upon a showing of r <cep-tional circumstances, require the attendance and testimony of named NRC personnel." (Emphasis added.).
21 Intervenors erroneously refer to the Licensing Board's "u/nreasonable denial of the Applicants' requests to issue a subpoena . . .". Intervenors' Brief at 12. Applicants requested no subpoena, and the reference should be to Joint Intervenors' re-
- quest.
l i
t Intervanors, howavar, nsvar raisad such a thesis as a basis for their request before the Licensing Board. Rather, Joint Interve-nors asserted that Mr. O'Reilly would have direct personal knowl--
edge of certain facts concerning CP&L's conduct of its nuclear a
program-that Mr. Bemis would not. In Joint Intervenors' Request, for; example, it is stated:
- James P. O'Reilly, as the head of NRC Staff in
, Region II, receives reports from all of the e
inspectors and has been able to develop the ,
most complete picture of the Applicants' man- '
agement. Mr. O'Reilly was also instrumental in recommending the fines, particularly the 1983 fine for $600,000, for various violations j at the Applicants' nuclear power plants. Addi-tionally, Mr. O'Reilly can also compare the management ability of the Applicants with l other similar companies in the Southeast.
- . Joint Intervenors' Request at 2-3.
i Again, in a telephone conference conducted by the Licensing
- Board on August 27, 1984, counsel for Joint Intervenors stated
. that their reason for requesting the appearance of Mr. O'Reilly was that he had knowledge of events at CP&L's nuclear facilities prior to 1982 which Mr. Bemis did not. Tr. 2295. The only con-
! cern about Mr. Bemis that the Joint Intervenors expressed was that 5
- Mr. Bemis had only been involved with CP&L's facilities for a pe-
) riod of about two years. Tr. 2294.
l Because of these assertions that Mr. O'Reilly would possess unique personal knowledge of such facts, the Licensing Board pru-i dently deferred ruling on the subpoena request until the conclu-
- sion of Mr. Bemis' testimony. Tr. 2365. At such time, the Li-censing Board reasoned, it would be in a position to determine
! whether Mr. O'Reilly's testimony would be of unique personal.
i 5
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knowledge and significant facts or whether it would be merely a 4
duplication of that of Mr. Bemis. Id.
Thus, at the conclusion of his cross-examination of Mr.
Bemis, counsel for Joint Intervenors had yet another opportunity to make a case of exceptional circumstances that would warrant calling Mr. O'Reilly to testify. Clearly, if Joint Intervenors had any con:ern about the possible bias of Mr. Bemis, they would have vaised it then. But they did not. Indeed, the Licensing Board Chairman expressly asked Joint Intervenors' counsel to explain why, in light of what had been said by the Staff witness-es, Mr. O'Reilly's testimony would be necessary. Tr. 3882. Coun-sel merely asserted, however, that Mr. O'Reilly had personal knowledge of certain faczt not shared by Mr. Bemis. The subjects which counsel enumerated did not include the issue of the possible bias of Mr. Bemis. See Tr. 3882-86. In denying the subpoena re-quest, the Licensing Board found that Mr. O'Reilly's testimony on those subjects would be either duplicative of Mr. Bemis' testimony or not sufficiently material to warrant the finding of exceptional circumstances required by 10 C.F.R. $ 2.720(h)(2)(1).
Tr. 3894-95. Intervenors do not suggest on appeal that this ruling was incorrect. Their newly asserted basis for the subpoena request, never presented to the Licensing Board, should not be se-riously entertained by the Appeal Board. See Tennessee Valley l Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B),
l ALAB-463, 7 N.R.C. 341, 348 (1978).
Moreover, even had the Joint Intervenors asserted that they
) needed to cross-examine Mr. O'Reilly to attack the credibility of 1
Mr. Bsmia, it is clear that ths Licensing Board would have bson correct in denying the request on that basis as well. This is so because counsel for the Joint Intervenors had the oportunity to cross-examine Mr. Bemis himself, and did so at length. His cross-examination of Mr. Bemis consumed 148 pages of transcript. In all of that questioning, the record does not reveal a shred of evi-dance that would even tend to suggest that Mr. Bemis had a con-flict of interest that would affect the objectivity of his obser- l vations of CP&L's management of its nuclear facilities. Indeed, the Joint Intervenors make their assertion of conflict without any citation to the record.22/
Furthermore, Intervenors mischaracterize and, therefore in-flate the significance of, Mr. Bemis' role in the SALP process.
Intervenors refer to Mr. Bemis as the " primary NRC staff member involved at all phases in the SALP which showed the Applicants had made improvements." Intervenors' Brief at 12. While Mr. Bemis was an important contributor of information to the SALP Review Board, it was the SALP Board that ultimately made the SALP IV evaluation of CP&L by secret ballot. LBP-85-28, supra, 22 N.R.C.
at 247-48; Tr. 3653-56, 3859-60; SALP IV, ff. Tr. 3660, at 1, 8.
Thus, the SALP IV report was the culmination of a collegial evalu-ation of CP&L's activities by numerous NRC Staff personnel.
22/ Neither is the hypothesized conflict of interest compelling even as an abstract intellectual proposition. We understand Mr.
Bemis' assignment from the NRC to have been one of oversight of CP&L's nuclear facilities, not one of managing their performance.
One might just as easily postulate that an inspector's personal standing in the agency might be advanced if more deficiencies were identified.
Mr. B:mic' credibility was tasted during extanoiva croso-examination by Joint Intervenors' counsel, during which time the Licensing Board was able directly to observe his demeanor. Be-cause of this opportunity directly to observe and appraise a wit-ness's demeanor, the Licensing Board's evaluation of Mr. Bemis' credibility is entitled to particularly great deference. Catawba, supra, ALAB-355, 4 N.R.C. 397, 404 (1976). The Licensing Board was fully aware of the extent of Mr. Bemis' duties as an enforce-ment official at CP&L's nuclear plants as well as his role in the SALP Review process. The Licensing Board found Mr. Bemis to be very well qualified to testify with regard to the management capa-bility contention because of his background and experience.
LBP-85-28, supra, 22 N.R.C. at 241-42. The Licensing Board stated that it had "high confidence in Mr. Bemis based on his technical expertise and extensive experience with CP&L." Id. at 257.
Under these unexceptional circumstances, there is no credible basis for the argument that Mr. O'Reilly could have provided any testimony concerning Mr. Bemis which would have assisted the Li-censing Board in evaluating the credibility of Mr. Bemis.23/
There is no basis, therefore, for disturbing the ruling of the Li-censing Board on this issue.
23/ Intervenors find it "important" to note that the Staff did not present motions to quash subpoenas. Intervenors' Brief at 13.
Of course, there was no reason to move to quash non-existent sub-poenas.
D. Joint fntervenors' Motion to Reopen the Record Intervenors assert that the Licensing Board erred in denying two requests by Joint Intervenors to reopen the evidentiary record of the hearing on the management capability contention.24/ The first request related to the affidavit and possible future testi-mony of a Mr. Chan Van Vo, a former employee of CP&L at the Harris Plant. The second request focused on certain lists of documents, which lists were provided to the Joint Intervenors as appendices to two NRC responses to Freedom of Information Act ("FOIA") ro-quests by one of the Joint Intervenors. The record overwhelming demonstrates that the Licensing Board's denial of those requests was proper, and Intervenors' appeal is without merit.
A proponent of a motion to reopen a record has a heavy bur-den. Kansas Gas and Electric Company (Wolf Creek Generating Sta-tion Unit 1), ALAB-462, 7 N.R.C. 320, 338 (1978). As the Appeal Board has often had occasion to restate, the proponent must demon-strate that (1) the motion is timely; (2) that the material sought to be-introduced addresses significant safety or environmental issues; and (3) that a different result might have been reached had the material been considered initially.25/ Louisiana Power &
24/ The hearing on the management capability contention was con-ducted from September 5 through September 14, 1984. The record was closed on September 14, 1984. Tr. 3989. Joint Intervenors' motion to reopen the record of this hearing was served on the par-L ties and the Board during the hearings on safety contentions on November 13, 1984. Motion to Reopen Record on Joint Contention I, dated November 13, 1984.
25/ Without citation to any NRC decision, Intervenors appear to claim the standard is considerably less stringent. See Interve-nors' Brief at 14.
Light Company (Waterford Steam Electric Station, Unit 3),
ALAB-812, 22 N.R.C. 5, 13-14 (1985). In Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C.
775 (1979), a motion to reopen the record was filed, as here, prior to the issuance of the licensing board's decision. The Ap-peal Board held that a licensing board need not reopen a record if the issues sought to be presented are not of " major significance".
Black Fox, supra, 10 N.R.C. at 804. Finally, as stated by the Commission in Diablo Canyon, to be successful, the movant must provide more than " bare allegations or simple submission of new contentions." Pacific Gas and Electric Company (Diablo Canyon i l
Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 N.R.C. 361, 363 (1981).26/
The Joint Intervenors failed to satisfy these standards with respect to the affidavit and possible testimony of Mr. Van Vo.27/
The facts and circumstances surrounding the emergence of Mr. Van Vo's affidavit in this proceeding and other governmental agencies is quite lengthy.28/ Both Applicants and the NRC Staff filed 26/ On December 27, 1984, the Commission published for public comment a proposed rule which would codify the standards estab-lished in NRC case law for reopening an evidentiary record in a licensing proceeding. 49 Fed. Reg. 50189 (Dec. 27, 1984).
27/ With respect to the FOIA material, the Licensing Board estab-lished a different, less stringent standard. Tr. 3990. As is discussed infra, Joint Intervenors failed to meet this standard as well.
28/ Those facts are set forth in detail in Applicants' Response to Late-Filed Contentions of Wells Eddleman and Conservation Coun-cil of North Carolina Based on the Affidavit of Mr. Chan Van Vo, dated November 13, 1984, at 3-5. To summarize as concisely as (Continued next page)
racponsivo placdings to Joint Intervanors' motion.29/ The Licens-ing Board reviewed the motion to reopen against the applicable standards and, based upon the pleadings and the record, found that Joint'Interveneors had failed to meet their burden of satisfying any of those standards. The Licensing Board made its ruling orally during a conference call on December 5, 1984. Tr. 7373-76.
Intervenors fail to direct the Appeal Board's attention to a sin-gle instance where the record fails to support the Licensing Board's rulings.
In the first place, the Board found that the motion was un-timely. Tr. 7374. The record revealed that counsel for Joint In-tervenors was aware of the substance of Mr. Van Vo's allegations l while the management capability hearing was underway. Tr. 7295.
Thus, Joint Intervenors could have raised the matter at that time l
while the evidentiary record was still open. The Joint Interve-nors did not then, and do not now, provide justification for their failure to alert the Licensing Board of their knowledge of these allegations.
(Continued) possible, however, Mr. Van Vo's affidavit contained allegations of certain specified errors in construction and the quality assurance-program at the Harris Plant, and allegations of harassment by CP&L's management. Mr. Van Vo had also made a complaint to the United States Department of Labor dated August 28, 1984, which contained allegations of harassment. The Department of Labor issued a ruling adverse to Mr. Van Vo on October 12, 1984.
29/ See Applicants' Response to Joint Intervenors' Motion to Re-open Record on Joint Contention I, dated November 30, 1984
(" Applicants' Response") and NRC Staff Response in Opposition to Motion to Reopen the Record on Joint Intervenors' Contention I, dated November 28, 1984.
i Sccond, ths Licensing Board found that the allegations raised C by Mr. Van Vo were of marginal significance at best to the issue of CP&L's ability to manage the operation of the Harris Plant.
Tr. 7375. This was so because the allegations related to particu-lar concerns related to construction and to the construction qual-ity assurance program at the Harris Plant, but did not allege any
- programmatic breakdown indicative of management weakness. The substance of the management capability contention, however, ques-tioned CP&L's ability to manage the operation of the Harris Plant 1 in light of-its experience in operating its other nuclear facili- 1 ties. Tr. 7376.
1 Intervenors assert, however, that Mr. Van Vo's allegation }
l !
that he had brought concerns about safety to Mr. Utley and Mr. t
- i. McDuffie, senior executives of CP&L, is relevant to the management
- a. '
capability contention because his allegation directly contradicts
- the testimony of those senior executives. Intervenors' Brief at i
l 14. This is simply not true. Mr. Utley and Mr. McDuffie did tes-tify that no employee had ever brought a safety concern to their ;
f attention.- Tr. 2700, 3068. Consistent with their testimony, the ;
record revealed and the Licensing Board _specifically found that j Mr. Van Vo had spoken to Mr. Utley and Mr. McDuffie in order to j discuss his personal problems and to present his thesis on manage-i- ment principles. Tr. 7375.30/ As the Licensing Board found, if l
4 30/ Applicants' Response to Late-Filed Contentions of Wells Eddleman and Conservation Council of North Carolina Based on the Affidavit of Mr. Chan Van Vo, dated November 13, 1984, at 16.
. Later during the deposition of Mr. Van Vo, he admitted that the j purpose of his visits to Mr. Utley and Mr. McDuffie was not to ex-press safety concerns. Deposition of Chan Van Vo, at Tr. 276-84; 303-04 (Feb. 26, 1985).
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anything, the facts favor Applicants because they demonstrate that Mr. Van Vo had access to top levels of CP&L's management. Id.
This also is consistent with the testimony of Mr. Utley and Mr.
McDuff-ie. Tr. 2700, 3066-3068.
Thus, it is clear that the Licensing Board correctly applied the criteria applicable to the motion to reopen based on Mr. Van i
! Vo's affidavit. Not only was the motion untimely, but Joint In-l {
l tervenors did not meet their burden of demonstrating that Mr. Van Vo's unsubstantiated allegations were of major significance and were likely to affect the Licensing Board's assessment of CP&L's
! ability to manage the operation of the Harris Plant safely. I l Finally, Applicants believe that, in any event, this entire issue is moot. The Licensing Board later admitted a specific con-tention in this hearing based upon Mr. Van Vo's allegations of l harassment.31/ The matter was tentatively set for hearing and ex-l tensive discovery was conducted. Ultimately, however, the Licens-ing Board dismissed the contention when the Joint Intervenors advised the Board by telephone that Mr. Chah Van Vo would not be
! available to testify at the hearing.32/
l 31/ Memorandum and Order (Ruling on Certain Safety Contentions and Other Matters), dated January 14, 1985. The contention al-leged as follows:
Chan Van Vo was placed on probation and later terminated from l
his job with CP&L because he had sought to raise nuclear safety concerns about the Harris facility, as he alleges, and not because of poor job performance, as CP&L alleges.
32/ The Licensing Board's order was rendered orally in a tele-phone conference call. Tr. 7755-56. That order was followed by the Licensing Board's written Memorandum and Order (Dismissing (Continued next page)
For all of the above reasons, therefore, the ruling of the Licensing Board on the motion to reopen to receive Mr. Van Vo's affidavit was correct and ought not be disturbed.
In the same motion, the Joint Intervenors also requested the
~
Licensing Board to reopen the record of the management capability hearing to receive certain lists of documents which the NRC pro-vided in response to two FOIA requests by one of the Joint Inter-venors. The Joint Intervenors wanted the lists to be included in the record for the limited purpose of contradicting statements al-legedly made on the record by the NRC Staff counsel and by Mr. Bemis.
The Licensing Board denied the motion on two grounds.33/
(Continued)
Contention Concerning Alleged Harassment of Former Employee and Rejecting Emergency Planning Contention), dated June 12, 1985. In any event, both Applicants and the NRC's Office of Investigations (OI) thoroughly investigated each of Mr. Van Vo's concerns related to construction and quality assurance at the Harris Plant. Both Applicants and OI prepared written reports which were submitted to the Licensing Board, in which it was concluded that all of Mr. Van Vo's allegations were baseless. Report of Results of Interviews Conducted with CP&L Personnel Related to Selected Aspects of an Affidavit Submitted by Former CP&L Employee Chan Van Vo (Exhibit F to Applicants' Response); Office of Investigation Report of Investigation - Shearon Harris Nuclear Plant: Alleged Ha-rassment/ Intimidation and Falsification of Documentation Commit-ments, served May 21, 1985 on the parties.
33/ The Licensing Board established a somewhat relaxed standard by which it would evaluate a motion to reopen the record to review material received in response to the FOIA request. The Board held:
The admission of these documents or their exclusion would simply depend on the criteria normally applicable to proffered evidence, whether it's relevant, whether it's probative, whether there is some other basis for (Continued next page)
First, tha motion wnc untimaly. Tr. 7376-77. Sacond, ths Joint Intervenors provided the Licensing Board with no transcript refer-ence to support the allegation that the lists of documents contradicted any statements by Staff counsel and Mr. Bemis. Tr.
7377-78. To the contrary, as the Applicants and Staff pointed out in their responsive pleadings, the record actually demonstrated that no contradiction in fact existed.34/ Thus, the Licensing Board's decision was amply supported by the record.
In any event, Intervenors do not appear here to be seriously challenging the Licensing Board's ruling. Rather, they seem to be challenging the NRC's decision not to release certain documents in response to the FOIA request. As Intervenors correctly concede, this is not a proper issue to raise before the Appeal Board. In-tervenors' Brief at 15-16. The Commission's regulations provide that a denial of a FOIA request is to be appealed to the Executive Director for Operations and, then, to the appropriate federal dis-trict court. 10 C.F.R. $ 9.11(c)(3). Mr. Eddleman did appeal the partial denial of the FOIA request.35/ The partial denial was (Continued) excluding it, in the same way that we have ruled on other exhibits that were offered during the course of the hearing.
Tr. 3990.
34/ Applicants' Response at 15; NRC Staff Response at 9-10.
35/ Letter to William J. Dircks, NRC Executive Director for Oper-ations, from John Runkle, Esquire, dated November 12, 1984 (Attachment 4 to Motion to Reopen Record on Joint Contention I, supra.)
.- r . . - .
cffirmsd by tha Exscutiva Dirsctor for Oparations.36/
II. The Licensing Board Did Not Err In Finding That The Thermoluminescent Dosimeters ("TLDs") And Measuring Equipment And Processes To Be Used At The Harris Facility Can Measure Occupational Radiation Doses With Sufficient Accuracy To Comply With NRC Regulations As litigated at the hearing on safety issues, Joint Conten-tion IV addressed the issue of "whether the TLDs and measuring.
equipment and processes to be used at the Harris facility can mea-sure occupational doses with sufficient accuracy to comply with the NRC regulations."32/ The Licensing Board found " clear and uncontroverted evidence that resolves this contention in favor of the Applicants." LBP-85-28, supra, 22 N.R.C. at 266.
The Intervenors' primary claim on appeal is that Applicants' use of the standard for TLD accuracy proposed by the American Na-tional Standards Institute (" ANSI") consistently will result in violations of the regulatory limits for dose to workers. Interve-nors' Brief at 19. Secondly, the Intervenors contend that the Li-censing Board should have required Applicants to remedy this al-leged inadequacy by complying with a standard proposed by Intervenors that purportedly would compensate for-inaccuracies in TLD processing. Id. Each of these claims is without merit.
l 36/ Letter to John Runkle, Esquire, from William J. Dircks, dated February 6, 1985.
32/ See LBP-85-28, supra, 22 N.R.C. at 258, where the original scope of Joint Contention IV and the basis for the grant of par-tial summary disposition on that issue is explained. See also Memorandum and Order (Ruling on Motions for Summary Disposition),
dated April 13, 1984. The Joint Intervenors have not appealed from the partial summary disposition of Joint Contention IV.
Intervenors' asserted grounds for appeal are patently mis-leading because they are based on a misinterpretation of the Li-censing Board's decision. In arriving at a decision in favor of Applicants, the Licensing Board undertook extensive consideration of the standard that should be applied to TLD performance.
LBP-85-28, supra, 22 N.R.C. at 260-62. The NRC regulations do not contain an explicit standard for accuracy in measuring radiation doses to workers. Id. at 259. To correct this deficiency, the NRC has issued a proposed rule incorporating the ANSI standard for measuring the performance of dosimetry processors.38/ 49 Fed.
Reg. 1205-11 (Jan. 10, 1984).39/ Applicants testified that they believed the ANSI standard to be the most appropriate measure of TLD accuracy. Tr. at 6467-68. The NRC Staff took the position that the Licensing Board should not adopt a different standard during the pendency of the rulemaking on the issue. Tr. 6507. In the Licensing Board's judgment, however, the ANSI standard is not compatible with its interpretation of the current regulations.40/
Therefore, the Licensing Board analyzed Applicants' dosimetry pro-gram'under both the ANSI standard and a more stringent standard 38/ The ANSI standard is expressed as P + S < L where P is the bias, S is the standard deviation and L is the tolerance level. L is set at .5 for doses from .03 to 10 rem and .3 for doses from 10 to 500 rem.
39/ The final rule currently is scheduled to be published by December 31, 1985. 50 Fed. Reg. 45012 (Oct. 29, 1985) (setting forth status of pending rules as of Sept. 30, 1985).
40/ For the reasons outlined below, the Appeal Board need not de-termine whether the Licensing Board's finding on that issue was correct.
proposed by the International Commission on Radiation Protection
("ICRP"). LBP-85-28, supra, 22 N.R.C. at 262-63.41/
~.
Applicants participated in a series of performance tests for
'~
their dosimetry program in 1982 and 1984. These test results dem-onstrated that Applicants met the ANSI standard with a comfortable margin. Id. at 262. As the Licensing Board found, Applicants also passed the performance test in all relevant categories under the ICRP standard. Id. at 262-63. The Board correctly found that "these test results provide an unusually clear and unequivocal line of evidence that refute the allegation of dosimetry inaccuraci.es in this contention, and demonstrate compliance with NRC regulations." Id. at 263. In addition, the Licensing Board found thatyApplicants have taken appropriate measures to minimize the significant sources of error in TLD processing. Id. at 263-65; Tr. 6535. Applicants do not intend to relax their in-house standards if the NRC adopts the ANSI standard. LBP-85-28, supra, 22 N.R.C. at 265-66. Indeed, AFDlicants are subject to sanctions if they fail to follow the tve.ation protection proce-dures they have established. Tr. Lost :,slbright) . As a result, Applicants' dosimetry program is not only adequate but " commend-able." LBP-85-28, supra, 22 N.R.C. at 265-66. The Intervenors' claim that Applicants will violate the regulatory limits on occu-pational doses is simply unfounded.
41/ The ICRP standard is expressed as P + 2S f.5 at doses from 1.0-5.0 rems and P + 2Sj$1.0 for doses below 1 rem. Compare with note 37, supra.
f l-Tho Intervanorssacond ground for appeal.also must be re-jected because it has no support whatsoever in the record. The In-tervenors contend that Applicants should be required to limit dos- '
age to R + .5R = X, where X is the regulatory limit (expressed in rems) and R is the dose measured by the TLD. The Licensing Board correctly rejected that proposal.
The proposed formula ignores the fact that the regulations limit measured dose and do not set forth specific standards for accuracy. Id. at 259; Testimony of Stephen A. Browne, ff.
Tr. 6407, at 14. The standard proposed by the Intervenors amounts to limiting worker exposure to two-thirds of the regulatory limit for measured dose. LBP-85-28, supra, 22 N.R.C. at 266. The Li-censing Board is not empowered to adopt such an " exotic" modifica-tion to the regulations. Id ; Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 N.R.C.
335, 340 (1983) (Licensing Board can only apply existing regula-tions). Applicable regulations can be challenged in a licansing proceeding only by showing special circumstances as provided by 10 C.F.R. $ 2.758. Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 N.R.C. 1591, 1614 (1984).
The Intervenors have attempted no such showing. Therefore, the Licensing Board's decision must be upheld.
III. The Licensing Board did not Err in its Rulings Rejecting as Inadmissible Eddleman Proposed Contentions 48 through 51, 65A and_B, and 132 (in part)
A. Introduction Section III of Intervenors' Brief purports to appeal Licens-ing Board rulings rejecting proposed safety contentions at the pleading stage for failure to meet the requirements of 10 C.F.R.
$ 2.714(b) that "the bases for each contention [be] set forth with reasonable specificity." Before they address particular proposed contentions, Intervenors open with a generic argument discussing the " basis with specificity" standard. Intervenors' Brief at 20-21. Except for deletions of references to NEPA and the envi-ronment, this argument is identical to one found in the interve-nors' brief on appeal of the environmental decisions.42/
By motion dated October 28, 1985, Applicants requested the Appeal Board, pursuant to 10 C.F.R. 5 2.762(g), to strike this section of Intervenors' Brief because it is not in substantial compliance with 10 C.F.R. $ 2.762(d)(1).43/ In particular,-Appli-cants argued that Intervenors had not adequately identified the issues appealed or the Licensing Board decisions being challenged, 42/ See Appeal from Partial Initial Decision on Environmental Contentions, dated April 9, 1985, at 19-21. Applicants replied and set forth their view of the " basis with specificity" standard in Applicants' Brief in Reply to Intervenors' Appeal from the Par--
tial Initial Decision on Environmental Contentions, dated May 9, 1985, at 30-31.
43/ Applicants' Motion to Strike a Portion of Intervenors' Brief on Appeal from the Partial Initial Decision on Safety Contentions, dated October 28, 1985.
L that Intervenors failed to identify the precise portion of the record relied upon in support of each assertion of error, and that
~ Intervenors did not provide sufficient information and argument to allow an intelligent response by appellees or disposition cf the issues by the Appeal Board.
I Stating that it was not convinced that all of the interve-nors' arguments are totally inadequate or that Applicants cannot intelligently respond to some of them, the Appeal Board denied the motion to strike. Order (unpublished) at 2, 3 (Oct. 31, 1985).
- The Appeal Board agreed with Applicants, however, that some argu-ments in section'III of Intervenors' Brief are inadequate.44/
Thus, the Appeal Board stated that Applicants ". . . need only to respond to the merits of those arguments in section III of the in-tervenors' brief that are reasonably identified and under-standable." Id. at 4.
With this guidance in mind, Applicants respond below to the appeals from Licensing Board rulings rejecting pro >osed Eddleman
- contentions'48 through 51, 65A and B, and 132 (in part). For the reasons stated in our motion to strike, Applicants consider the other arguments in section III of Intervenors' Brief not to be i
44/ The Appeal Board stated: " For example, it is obvious that l the intervenors cannot obtain appellate review of the Licensing l Board's rejection of dozens of their proffered contentions by the
- simple expedient of stating, without a great deal more, that their
- arguments apply equally to 'each and every safety contention' filed by the various intervenors. Similarly, it is patently in-
- sufficient for the intervenors to state,.without any elaboration, that the rejection of a number of their contentions dealing with a particular subject was capricious." Order (unpublished) at 2-3 (Oct. 31, 1985). Cf. Intervenors' Brief at 21, 22.
i l
31-f 5
or- w ,w,- ,. ,,,,---,---e, - - - , ,
reasontbly identificd or undarstandable.45/
B. Eddleman 48 Through 51 Mr. Eddleman claims that the Licensing Board erred in re-jecting his proposed Contentions 48 through 51 on the basis that Contention 47 had been withdrawn, since the Licensing Board simply references a basis given in the text of Contention 47. Interve-nors' Brief at 22.
This mischaracterizes the Licensing Board's holding. Conten-tion 51 was not rejected, since it had been explicitly withdrawn by Mr. Eddleman, without regard to Contention 47. Tr. 432; LBP-82-119A, supra, 16 N.R.C. 2069, 2098 (1982). Contention 50 was rejected on the additional ground, not challenged on appeal, ,
{
that the Licensing Board does not have authority to halt plant f construction. LBP-82-119A, supra, 16 N.R.C. at 2098.
l l
The Licensing Board did consider Contentions 48 and 49 to (
l have been withdrawn implicitly, and in the alternative rejected I
them, because it considered Contention 47, which Mr. Eddleman 45/ The Appeal Board observed that Applicants' argument on the attempted unauthorized appeal by CCNC and Mr. Eddleman of the re-jection of contentions proposed by other parties appears to be an l argument that belongs in the reply brief and not in a motion to i
strike. Order (unpublished) at 3 (Oct. 31, 1985). Since the Ap-peal Board also rejected, however, the attempt to obtain appellate review by the expedient of a mere reference to all safety conten-tions, id. at 2-3, Applicants need not advance their argument here. The only mention of specific contentions proposed by anoth-er party (CHANGE 14, 16, 23, 25 and 26) is accompanied by the lim-ited argument that they are " good contentions." Intervenors' Brief at 21. Applicants do not consider this to be reasonably identified or understandable argument warranting a substantive re-sponse.
1 1
l
withdraw, to ba tha basis (not a basis) for thosa contentions.
Id. On appeal, Intervenors do not explain how Contentions 48 or
-49 might stand without 47, and thus provide no basis for ques-tioning the Licensing Board's rulings.46/
C. Eddleman 65A and B Intervenors claim that ". . . the rejection of new concrete contentions 65A and B, filed 6/14/84, was wrong because the prob-lems are identified clearly and it was Applicants' delaying tac-tics which withheld the information sought." Intervenors' Brief at 22. Intervenors do not provide any further description of the proposed contentions, and do not cite or even describe the Licens-ing Board's ruling.
Eddleman Contention 65, which challenges the integrity of containment concrete at the Harris Plant, was timely filed in 1982, admitted by the Licensing Board, tried in 1984, and decided in the Partial Initial Decision on Safety Contentions. See LBP-85-28, supra, 22 N.R.C. at 289. Proposed contentions 65-A and 46/ Mr. Eddleman cannot be deliberately vague about his inten-tions, and complain later that he was misread. For example, fol-lowing the special prehearing conference, Mr. Eddleman appeared to acknowledge that proposed contentions 48 and 49 had also been withdrawn: "The statements of contentions 47-51 are incorperated by reference in No. 107, and the withdrawal of those contentions or parts thereof was not intended to say they are invalid as basis for other contentions." Post-Hearing Submission of' Wells Eddleman, August 10, 1982, at 12. If the Licensing Board misread' this equivocation, Mr. Eddleman had the opportunity over three years ago to call attention to any alleged error. He failed to do so. -See Wells Eddleman's Objections to 9/22/82 Memorandum and Order
- Reflecting Decisions Made Following (Special) Prehearing Conference," dated October 15, 1982.
__.____a_______.-.: -
65-B wara untimely filed on June 14, 1984. They were based upon the Affidavit of Charles C. Stokes, filed in support of Mr.
Eddleman's opposition to Applicants' motion for summary disposi-tion of Contention 65.42/
Following the argument advanced by the NRC Staff,48/ the Li-censing Board rejected proposed Contention 65-A as redundant of
.the revised Contention 65, which was slated to go to hearing and under which the substance of the proposed contention could be lit-igated.49/ Tr. 2174. Intervenors' Brief does not address this rationale adopted by the Licensing Board in rejecting proposed Contention 65-A. Consequently, in the absence of any claim that Mr. Eddleman was denied the opportunity to litigate the substance of this proferred contention, the Licensing Board's decision should be affirmed.
Proposed Eddleman Contention 65-B states as follows:50/
Based upon the 6-12-1984 affidavit of Charles Stokes, PE, structural and concrete expert, the integrity of the Harris containment for stopping leaks has not been shown to be ade-quate. Applicants must show that damage to 42/ Wells Eddleman's Response to Summary Disposition Motion on Eddleman 65 (Concrete), dated June 14, 1984.
48/ NRC Staff Response in Opposition to Wells Eddleman's Prof-fered Contentions 65A and 65B on Integrity of Containment Con-crete, dated July 3, 1984, at 9.
49/ As a part of its ruling granting in part and denying in part Applicants' motion for summary disposition of Eddleman Contention 65, the Licensing Board revised the scope of the original conten-tion. See LBP-85-28, supra, 22 N.R.C. at 289.
50/ New Eddleman Contentions 65-A etc. (Structural Integrity Questionable Due to Voids from Out of Specification Slump and Im-proper Vibration Technique and Inadequate Strength of Harris Con-tainment Concrete), dated June 14, 1984, at 1.
l
the Harris waterstop due to cadwelding etc.
l has not compromised the integrity of the wa-terstop.
Recognizing that the contention was untimely, Mr. Eddleman at-tempted to show that a balancing of the five factors set forth in 10 C.F.R. $ 2.714(a)(1) weighed in favor of admission. As to fac-tor (i) -- good cause, if any, for failure to file on time -- Mr.
Eddleman argued the previous unavailability of basis information.
He asserted that he only had the concrete pour packages (obtained through discovery of Applicant.s on Contention 65) for two and one-half months, and that he had only just received the Stokes Af-fidavit evaluating them.51/
Applicants advanced several arguments against Mr. Eddleman's showing of purported good cause for filing 65-B.52/ First, the appearance of the Stokes Affidavit is not the type of previously unavailable "new information" contemplated by the decision in Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 N.R.C. 1041 (1983), as required to support the untimely filing of contentions. The affidavit was prepared under Mr. Eddleman's direction for use in this proceeding. It did not suddenly appear in the public domain for independent reasons. A party cannot cause the preparation of a document and then argue that its previ-ous unavailability satisfies the good cause factor for filing an untimely contention.
51/ Id. at 2.
52/ Applicants' Response to Eddleman Proposed Contentions 65-A and 65-B, dated June 29, 1984, at 3-6.
- - - . - __ _ - - -- ___ -._~ -. ... ._. _-
M Second, the discovery material on which the Stokes Affidavit is based was available to Mr. Eddleman long before June 14, 1984. l
' l Intervenors posing late-filed contentions based on discovery on other contentions should be held to the same standards of dili-gence in pursuing that discovery as is required in their review of publicly available documents. Catawba, supra, CLI-83-19, 17 N.R.C. at 1045 (1983). Here, the discovery material consists of copies of concrete pour packages Mr. Eddleman requested in his second round of discovery on Contention 65, filed on January 30, 1
1984, and produced by Applicants on March 23, 1984.53/ Discovery had been available, however, since the contention was admitted by
- the Licensing Board on September 22, 1982. Consequently, the documents were available long before the late proposed contention was filed.54/
i The Licensing Board endorsed Applicants' reasoning and held 2
] that a balancing of the five factors of 10 C.F.R. 5 2.714(a)(1) l weighed against the admission of proposed Contention 65-B. Noting the availability of discovery on Contention 65, the Licensing Board found that the inexcusable lateness in filing 65-B was the i
53/ Mr. Eddleman filed his first set of discovery requests on Contention 65 on March 21, 1983, six months after discovery opened.
54/ In addition, Mr. Eddleman did not comply with the Licensing Board's directive that new or amended contention & be filed within l
thirty days after the receipt of new information (here, the con-crate pour packages). See LBP-82-119A, supra, 16 N.R.C. 2069, 2073 (1982); see also Catawba, supra, CLI-83-19, 17 N.R.C. at 1043-44 (in determining whether good cause exists for the late filing of a contention, the degree of promptness in which a contention is ten-
-dered after a document becomes available is to be considered).
1 4
i s
--- w - r u m . ,v-r-- ,..,,,--~ee-m -e~------- ---ec--------+-,-+,r-+- -w-, .,,,-e-- -=t - - = - - - ------r --r-- -
controlling fcctor,.cnd that the contention could have been advanced long ago. Tr. 2174-75.
On appeal, Intervenors complain that Applicants delayed and withheld the information sought. Intervenors' Brief at 22. Since j they do not cite to any record in support of this assertion, Ap-plicants cannot respond to it meaningfully.55/ No basis has been advanced upon which to disturb the Licensing Board's holding. The Appeal Board accords licensing boards wide latitude when they bal-ance the five factors in 10 C.F.R. $ 2.714(a)(1). Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),
ALAB-806, 21 N.R.C. 1183, 1190 (1985). Intervenors have not dem-onstrated that a reasonable mind could reach no other result than to balance the factors in favor of this proposed contention. See Washington Public Power Supply System (WPPSS Nuclear Project No.
3), ALAB-747, 18 N.R.C. 1167, 1171 (1983). Accordingly, the re-jection of Eddleman 65-B should be affirmed.
D. Eddleman 132 (in part)
As originally proposed, Eddleman Contention 132 claimed that the design of the Harris Plant control room did not meet regula-tory requirements because: (1) it allegedly lacked sufficient in-strumentation to detect inadequate core cooling, and (2) it alleg-l l
edly had not been subjected to a human factors review.56/ The f 55/ While there were discovery disputes along the way, Applicants were sustained as to some objections, and the large gaps in time before each discovery request was filed are attributable to Mr.
Eddleman alone.
56/ Wells Eddleman " Supplement to Petition to Intervene," dated May 14, 1982, at 239.
Licensing Board admitted the allegation about core cooling instru-mentation as Eddleman Contention 132, and deferred ruling on the human factors allegation until Applicants filed their control room design report with the NRC.57/ Ultimately, one of Mr. Eddleman's
" human factors" contentions was admitted, 132C(II), while others were not.58/
While there are no citations provided to Licensing Board de-cisions or to the record, Applicants assume that Intervenors are 1
appealing from rulings in the Licensing Board's decision of l l
October 6, 1983, rejecting a number of Mr. Eddleman's proposed i control room design contentions. There is some doubt, however, as to the scope of the appeal. Intervenors state that ". . . the re-jection of contentions 132A, 132B, 132(c)(1) and 132(D) et al. on the grounds that the Staff is to review the matters in question, likewise violates the public's right to a hearing." Intervenors' Brief at 23. Beyond proposed Contention 132D, the Licensing Board's Oct. 6, 1983 Memorandum and Order rejects proposed Conten-tions 132E, F and G. Since not one of those three proposed con-tentions was rejected exclusively on the grounds attacked on ap-peal,59/ Applicants construe the appeal to be limited to the 57/ Memorandum and Order (Addressing Motions for Reconsideration and Clarification of the Board's Prehearing Conference Order) at 5-6 (Jan. 11, 1983).
58/ Memorandum and Order (Ruling on Wells Eddleman's Proposed Contentions Concerning Detailed Control Room Design Review (DCRDR), Richard Wilson's Motion to Withdraw Contentions, and the Conservation Council of North Carolina's Motion to Withdraw Con-tentions), at 2-13 (Oct. 6, 1983) (cited hereafter as "Oct. 6, 1983 Memorandum and Order").
59/ For example, "E" was rejected largely because it mischarac-terized, and did not respond to the information in, Applicants' (Continued next page)
proposed contentions explicitly identified in Intervenors' Brief.
The Licensing Board's Oct. 6, 1983 Memorandum and Order does not rule upon an Eddleman proposed Contention 132A because Mr.
Eddleman had abandoned it. By agreement of the parties, endorsed by the Licensing Board, Mr. Eddleman was to revise or to reassert his control room design contentions of January 8, 1983, or to sub-mit new ones, after he received a June 1, 1983 supplement to Ap-plicants' report.p0/ While Mr. Eddleman did so, noting that he states which of his old contentions should stand, he did not reassert or otherwise even mention 132A.pl/ Consequently, 132A was not rejected by the Licensing Board because it was not advanced for ruling. The appeal at this point is entirely mis-placed.92/
(Continued) report. Oct. 6, 1983 Memorandum and Order at 10-11. "F" was re-jected because most of it was redundant of other contentions. Id.
at 11-12. As to the Emergency Operating Procedures challenged in "F", as directed by the Licensing Board Applicants served copies of the Emergency Operating Procedures Generation Package on the Licensing Board and parties by letter of September 18, 1984, from S. R. Zimmerman (CP&L) to Harold R. Denton (NRC). Mr. Eddleman has not acted to challenge the adequacy of that information. "G" was rejected for the same reasons as "F", but on the additional basis that it was overly broad. Id. at 12-13.
60/ See Oct. 6, 1983 Memorandum and Order at 2; Carolina Power &
Light Company (Shearon Harris Nuclear Power Plant, Units 1 and 2),
LBP-83-27A, 17 N.R.C. 971, 985 (1983).
pl/ Wells Eddleman's Response to 1983 Updated DCRDR Including Re-vised and dew Contentions, dated July 2, 1983.
62/ If, for reasons we cannot imagine, the Licensing Board and Applicants misread the situation, Mr. Eddleman should have spoken out after the Oct. 6, 1983 Memorandum and Order issued.
Propoesd Contcntion 132B allegcd thct the control room dasign does not comply with NUREG-0737, Supp. 1, because it does not pro-vide for a Safety Parameter Display System (SPDS). The Licensing Board found this to be factually incorrect, based upon the infor-mation available to Mr. Eddleman. Applicants were directed, how-ever, to provide Mr. Eddleman with a copy of the SPDS safety anal-ysis as soon after submittal as possible, so that he could file any contentions concerning its adequacy. Oct. 6, 1983 Memorandum and Order at 4. On appeal, Intervenors do not provide any basis for questioning the Licensing Board's assessment of the facts
, available at the time. Further, the appeal is hollow because Mr.
Eddleman subsequently advanced contentions challenging the SPDS safety analysis.63/ The Licensing Board rejected those conten-tions, and Mr. Eddleman has not appealed those rulings.64/
Proposed Contention 132C(I) challenged Applicants' control room design report because it allegedly failed to establish that the review team that prepared the report had appropriate j interdisciplinary qualifications. In rejecting this proferred i
- contention, the Licensing Board observed that while they were not required to do so by the NRC, Applicants had included in their 63/ Wells Eddleman's new contentions re SPDS, dated January 3, 1984. See also Applicants' Response to Eddleman Proposed Conten-tions 169-172 (Safety Parameter Display System), dated January 23, 1984.
64/ To the extent Mr. Eddleman was interested in the " human fac-tors" review of the SPDS's integration into the control room de-sign, this information was served upon him by letter of September 13, 1985, from A. B. Cutter (CP&L) to Harold R. Denton (NRC). Again, Mr. Eddleman has not taken steps to challenge this information.
rcport a doccription of tha revisw torm end resumso of tha tocm.
The contention was rejected for lack of a basis asserted with rea-sonable specificity, since Mr. Eddleman did not challenge the team members' qualifications. Oct. 6, 1983 Memorandum and Order at 5.
On appeal, Intervenors do not address the basis for the Licensing Board's ruling, which had nothing to do with a subsequent Staff review. See Intervenors' Brief at 23.
Proposed Eddleman Contention 132D(II) addressed the Unit 2 control room.65/ Oct. 6, 1983 Memorandum and Order at 10. Since Unit 2 of the Shearon Harris Nuclear Power Plant was cancelled in December, 1983, the appeal is moot.
Intervenors argue that a later Staff report on the control room at Harris validated the concerns raised in the cited Eddleman proposed contentions. Intervenors' Brief at 23. Since Interve-nors do not identify the report, Applicants cannot respond to this argument in detail. However, if such a report exists, there is no reason why Mr. Eddleman did not reassert his previous contentions or file new ones. Since Mr. Eddleman had the opportunity to take action to protect his interests in the face of this alleged new information, Intervenors' allusion to it now on appeal is hollow.
65/ Proposed Contention 132D, cited in Intervenors' Brief at 23, was abandoned by Mr. Eddleman. See Wells Eddleman's Response to 1983 Updated DCRDR Including Revised and New Contentions, dated July 2, 1983, at 7.
E. Conclusion For the foregoing reasons, the Licensing Board's rulings re-jecting Eddleman proposed Contentions 48 through 51, 65A and B, and 132 (in part) should be affirmed. The Appeal Board has stated that "[ijn light of the nature of some of the intervenors' argu-ments in section III, should we disagree with the applicants' choice for substantive responses, we would provide them a further opportunity to respond before reversing the Licensing Board's re-jection of any contention." Order (unpublished) at 4 (Oct. 31, 1985). Should the Appeal Board in fact disagree with Applicants' selection, we would appreciate being so advised as soon as possi-ble, and would attempt to file any necessary supplemental reply brief prior to oral argument.
IV. The Licensing Board Did Not Err And Applied The Correct Legal Standard In Dismissing Eddleman Contentions 11, 29, 45, 64(f), 132 And 132C(II) And Joint Contentions V and VI On Applicants' Motions For Summary Disposition A. Introduction In section IV of Intervenors' Brief, Intervenors appeal the Licensing Board's grant of summary disposition on various conten-tions. This portion of the appeal brief is procedurally inade-quate and the claims set forth are substantively without merit.
Therefore the Licensing Board's decisions granting summary dispo-sition to Applicants should be sustained.
Section IV of Intervenor's Brief does not satisfy the Commis-sion's regulations, which require that i
An appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal. For each issue appealed, the pre-cise portion of the record relied upon in sup-port of the assertion of error must also be
_provided.
10'C.F.R. $ 2.762(d)(1). In violation of this regulation, the In-tervenors make no-attempt whatsoever to identify the portions of the record relied upon in support of their claims; indeed, the Li-censing Board rulings which are being appealed are not even iden-tified. This lapse is especially egregious in light of the fact that' rulings on eight separate contentions are being appealed and that each of these contentions was resolved on the basis of a sub-stantial record. In addition, the Intervenors fail to provide sufficient'information about their claims of error to allow Appli-cants or the Appeal Board an informed opportunity to respond to or assess their claims. As a result of the Intervenors' failure to comply with Commission regulations, Applicants have been obligated to research the record to ascertain what the Licensing Board. held, what opposition was presented by the Intervenors, and which of the I
arguments below appear to be recycled on appeal. This is simply unfair to Applicants. Public Service Company of Indiana, Inc.,
-(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, l 7 N.R.C. 313, 315 (1978). Under these circumstances, it is appro-priate for the Appeal Board to treat the Intervenors' unsupported assertions as waived or abandoned because of their failure to com-
_ ply with 6 2.762(d)(1). Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 N.R.C.
490, 496 n.30 (1985); Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 N.R.C. 59, 65-66 (1985). At a mini-mum, the Intervenors should be admonished that future briefs will be disregarded if they are not in compliance with the applicable regulations.
Moreover, the single, generic claim of error that the Inter-venors set forth in the introductory paragraph in section IV is meritless and apparently is based on a misconception of the stan-dards applicable to summary disposition. The Intervenors contend that the Licensing Board held them to an unreasonable standard of proof.66/ Although it is not clear from the discussion in their brief, Intervenors apparently would agree, as they must, that sum-mary disposition is appropriate where the relevant pleadings, an-swers to interrogatories, and admissions on file, together with the statements and affidavits of the parties, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.67/ 10 C.F.R. 5 2.749(d). The Intervenors seem to contend, however, that the 66/ However, nowhere do Intervenors state how this generalized claim of error has been applied with respect to any of the eight rulings for which they seek appellate review. See Intervenors' Brief at 26-27.
67/ The Commission and its adjudicatory boards have long encour-aged the use of this summary disposition process where the propo-nent of a contention has failed to establish that a genuine issue exists, so that evidentiary hearing time is not ur.necessarily de-voted to cuch issues. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-3, 13 N.R.C. 452, 457 (1981); see also Houston Lighting and Power Company (Allens Creek Nuclear Generating Sta-tion, Unit 1), ALAB-590, 11 N.R.C. 542, 550 (1980) (". . . the Section 2.749 summary disposition procedures provide in reality as well as in theory, an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues . . .").
cxist:nco of a mntorial iccuo of fcct ccn b2 inforrcd from tho mere fact that a contention was admitted in the proceeding. In-tervenors' Brief it 24. This is incorrect.68/ The fact that a contention is fsand admissible under 10 C.F.R. 5 2.714 does not give rise to a ge.tuine issue of fact within the meaning of
$ 2.749. Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A.E.C. 423, 425 n.4 (1973).
Admission of a contention only requires a determination that the proposed claim is specific, has some basis and is relevant to the proceeding. By contrast, where motions for summary disposi-tion are properly supported by affidavits and other evidence de-monstrating that there are no material issues of fact, the opposing party may not rest upon mere allegations or denials such as those set forth in the contentions. The party opposing summary disposition must set forth specific facts showing that there is a genuine issue of fact. 10 C.F.R. $ 2.749(b).
As discussed below, Applicants' motions for summary disposi-tion of Eddleman Contentions 11, 29, 45, 64(f), 132, and 132C(II) and Joint Contentions V and VI were supported by comprehensive af-fidavits and other uncontroverted evidence. The Licensing Board correctly held that Intervenors did not introduce competent evi-dence raising a material issue of fact as to any of these conten-tions. Indeed in four instances, the Intervenors did not even 68/ Intervenors unaccountably cite Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31, 12 N.R.C.
264 (1980) in support of this proposition. This case has nothing whatsoever to do with tha standards applicable to summary disposi-tion.
oppose Applicants' motion for summary disposition.69/
B. Eddleman Contention 11 Intervenors question the Licensing Board's summary disposi-tion of Eddleman Contention 11, which concerned radiation dose-rate effects on polyethylene cable insulation.20/ During the course of discovery, it was established . t polyethylene is not used as electrical cable insulation at the Harris Plant. See LBP-85-28, supra, 22 N.R.C. at 297. This fact was communicated by Applicants to Mr. Eddleman.21/ Applicants and Mr. Eddleman were, however, unable to agree on a basis for settlement, and Applicants (with the support of the NRC Staff) filed for summary disposi-tion.22/
Mr. Eddleman in his response to Applicants' motion 23/ did not contest the determination that polyethylene is not used as 69/ As discussed infra, Applicants' motions for summary disposi-tion of Joint Contentions V and VI and Eddleman Contentions 29/30 and 45 were unopposed.
20/ The text of Eddleman Contention 11 is set forth at LBP-85-28, supra, 22 N.R.C. at 297.
21/ See Applicants' Responses to Wells Eddleman's General Inter-rogatories and Interrogatories on Contentions 9, 11, 41, 45, 116 and 132C(II) to Applicants Carolina Power & Light Company, et al.
(Eighth Set), dated April 17, 1984, at 26.
22/ See Applicants' Motion for Summary Disposition of Eddleman Contention 11, dated May 25, 1984; NRC Staff Response in Support of Applicants' Motion for Summary Disposition of Wells Eddleman's Contention 11, dated June 18, 1984. Both the Applicants' motion and the Staff's response were supported by tLe affidavits of ex-parts.
23/ Wells Eddleman's Response to Summary Disposition on Eddleman Contention 11 (Cable Insulation Degradation), dated June 29, 1984.
olectric ccblo insulction ct tho Harris Plant, nor did he other-wise attempt to defend Eddleman Contention 11. See LBP-85-28, supra, 22 N.R.C. at 297. The Licensing Board therefore dismissed the contention as moot. Id.
On appeal, Intervenors offer only the generalized assertion that "the evidence produced on summary disposition was insuffi-cient to close off the issue . . . ." Intervenors' Brief at 26.
Intervenors provide no basis to question the correctness of the Licensing Board's decision that the contention was moot.74/
C. Eddleman Contention 29/30 Eddleman Contention 29/30 alleges that Applicants have 74/ Intervenors appear to attempt to base their appeal of Eddleman Contention 11 on a suggestion by Mr. Eddleman in his re-sponse to the summary disposition motion that the Licensing Board "might look into" dose-rate effects on neoprene. Wells Eddleman's Response to Summary Disposition on Eddleman Contention 11 (Cable Insulation Degradation), dated June 29, 1984. As discussed in LBP-85-28, supra, 22 N.R.C. at 297, the Licensing Board, based on the affidavits and other information received from the parties, found no significant safety concern at the Harris Plant related to this issue. The Board therefore declined to declare a sua sponte issue as suggested by Mr. Eddleman. See 10 C.F.R. $ 2.760a (a 11-censing board's sua sponte authority is to be exercised only where the board determines that a serious safety, environmental, or com-mon defense and security matter exists).
Intervenors do not even attempt to show why they believe this decision was in error. Indeed, neither Mr. Eddleman in his origi-nal response to the summary disposition motion, nor the Interve-nors in their appeal, point to any evidence (let alone record evi-dance) that neoprene is actually used as cable insulation at the Harris Plant. In fact, neoprene is not used. See attachment to Letter from M. A. McDuffie, Senior Vice President, Engineering &
Construction, CP&L, to Harold R. Denton, Director, Office of Nuclear Reactor Regulation, NRC (April 26, 1983) (listing cable insulation materials used at Shearon Harris). This letter was served on the Licensing Board and the parties.
undoroctimatcd rcdioiodino rolonoso during normal oporations and have not demonstrated that normal radiciodine releases will not exceed 10 C.F.R. Part 50, Appendix I, limitations. Summary dispo-sition of this contention was granted when Applicants and the NRC Staff demonstrated that no genuine issue of material fact existed with respect to the conservative estimates of radiological release rates from tie Harris Plant, which appr, imate only five percent of Appendix I limits.25/ Mr. Eddleman did not even respond to Ap- ,
plicants' motion for summary disposition. l Eddleman Contention 29/30 was classified as an environmental contention by stipulation of the parties and by order of the Li-censing Board.26/ The Licensing Board was clear that its Partial Initial Decision on Environmental Contentions made rulings granting summe.ry disposition of environmental contentions ripe for 25/ Memorandum and Order (Ruling on Motions for Summary Disposi-tion of Eddleman Contentions 29/30, 64(f), 75, 80 and 83/84), at 3-5 (Nov. 30, 1983); see also Applicants' Motion for Summary Dis-position of Eddleman Contention 29/30 (Appendix I Compliance),
dated October 5, 1983; NRC Staff Response in Support of Appli-cants' Motion for Summary Disposition of Eddleman Contention 29/30, dated October 28, 1983.
26/ See Memorandum and Order (Reflecting Decisions Made Following Second Prehearing Conference), at 3, 6 (Mar. 10, 1983), which set forth the agreements of the parties and the list of admitted con-tentions grouped as environmental contentions. The Licensing Board even provided a mechanism whereby a party could seek to have a contention re-classified if developments in the litigation so warranted. Id. at 3 n.2. See also Applicants' Proposed Findings of Fact and Conclusions of Law on Environmental Matters, dated July 20, 1984, at 6 n.5, which listed environmental contentions previously decided by summary disposition. Intervenors' statement that this contention "has also been interpreted sometimes as envi-ronmental" is misleading. The record below shows unambiguously that it has always been considered an environmental contention in this proceeding.
appellate review. LBP-85-5, supra, 21 N.R.C. at 412, 445 (1985).
Notice of appeal of the Licensing Board's decision on Eddleman Contention 29/30 was due to be filed within ten days of the February 20, 1985 Partial Initial Decision on environmental con-tentions and Intervenors' brief was due on April 9, 1985 22/
Thus, an appeal of the Licensing Board's order granting summary disposition is untimely and should not be entertained.23/
In any event, Intervenors have established no grounds for ap-peal. They simply assert that the " issue (of) the control of ra-diciodines is very important," and the " Staff is evidently still checking on radioiodine release pathways and requiring redesign, checks on radioiodine detectors, and other measures." Interve-i nors' Brief at 27. Intervenors have never attempted, and do not attempt here, to controvert the overwhelming evidence de-monstrating that radioiodine releases from the Harris Plant will be well within the regulatory limits. Furthermore, Applicants have no idea to what Intervenors are referring in their unsupported statement that the Staff is still checking on ra-diciodine release pathways. Even if this feeble appeal were time-ly, it would have to be summarily rejected.
22/ LBP-85-5, supra, 21 N.R.C. 410, 445; see also Motion for Ex-tension of Time to File Brief, dated April 4, 1985.
Ig/ Finality in administrative decision-making is important. For the same reasons that the Licensing Board decided categories of issues as they became ripe, and took care to be clear about its decisions, it is also important that the Appeal Board's review not be fragmented unilaterally at the whim of intervenors.
i _ _ _ _ _ _ _ _ _ _ . _ _ . _
D. Eddleman Contention 45 Eddleman Contention 45 alleges that the steam generators, feedwater, ECCS, main steam system and their components are not properly designed, constructed and tested against water hammer.Z9/
Applicants' motion for summary disposition, supported by five af-fidavits, demonstrated that the relevant systems and components for the Harris Plant have been ciesigned to minimize the potential for and consequences of water hammer, such that there is no issue of safety significance. Applicants also showed that the Initial Test Program at Harris has been established to ensure that all equipment and systems at the Harris Plant will perform in accor-dance with their design bases, including those relevant to water hammer. Applicants committed to verify, prior to commercial oper-ations, that these systems have been constructed in accordance with design documents. Moreover, the NRC Staff has, since the ad-mission of Contention 45, resolved the generic Unresolved Safety Issue relating to water hammer, finding inter alia that water ham-mer is not as significant a safety issue as previously thought.80/
The NRC Staff supported Applicants' motion for summary disposi-tion.gl/
19/ See LBP-82-119A, supra, 16 N.R.C. 2069, 2097 (1982); the text of Eddleman Contention 45 and its procedural history are set forth in Applicants' Motion for Summary Disposition of Eddleman Conten-tion 45 (Water Hammer), dated May 25, 1984.
80/ U.S.N.R.C., " Evaluation of Water Hammer Occurrence in Nuclear Power Plants, Technical Findings Relevant to Unresolved Safety Issue A-1," NUREG-0927, Revision 1 (March 1984) at 1-4, as dis-cussed in Applicants' Motion for Summary Disposition of Eddleman Contention 45, supra, at 5-8.
gl/ NRC Staff Response in Support of Applicants' Motion for Sum-mary Disposition of Wells Eddleman's Contention 45 (Water Hammer),
dated July 2, 1984.
In tho faco of thic overwhslming evidsnco that there was no genuine issue as to any material fact, Mr. Eddleman advised the Licensing Board that he declined the opportunity to file an oppo-sition to Applicants' motion for summary disposition.g2/ The Li- '
' censing Board granted summary disposition, finding there was no genuine issue as to any material fact, and that, in any event, the issue was no longer contested and must therefore be dismissed.g3/
On appeal, the Intervenors assert no claim of error except weakly to demur that "the specific application (of the water ham-mer issue] was not resolved in Intervenors' view." Intervenors' Brief at 27. In support of their lament, Intervenors cite to "the i
defense to summary disposition" -- especially unenlightening since l Mr. Eddleman failed to file one -- and " discovery" -- not much l more enlightening since there were various rounds of interrogato- l rios among the parties and informal discovery during settlement negotiations.gf/ Id. Intervenors' appeal must be rejected for failins adecuately to brief the claim of error of fact or law and because the record below demonstrates conclusively that there is no genuine issue as to any material fact.
g2/ See Memorandum and Order (Revision of and Schedule for Filing Written Testimony on Eddleman Contention 9; Rulings on Eddleman Contentions 45 and 67), at 3-4 (July 24, 1984).
g3/ Id.
g4/ See Applicants' Motion for Summary Disposition of Eddleman Contention 45 (Water Hammer), supra, at 2-3.
E. Eddicmen Contention 64(f)
Eddleman Contention 64(f) concerned the Target Rock 73-J pressure relief valve originally installed on the IF-300 rail spent fuel shipping cask owned by CP&L. Mr. Eddleman alleged that l the valves used for pressure relief during " wet" shipments "are likely to unseat" or "the plastic components of such valves could and would melt in a fire."g5/
Applicants argued in their motion for summary disposition that Contention 64(f) was moot -- i.e., the IF-300 shipping cask had been withdrawn from service for " wet" spent fuel shipments in 1981 -- and that, in any event, the Licensing Board lacked juris-diction to adjudicate a cont'ention regarding issues of health and safety in transporting spent fuel from CP&L's licensed facilities to the Harris Plant in shipping containers already licensed by the NRC.8g/ The NRC Staff supported Applicants' motion but did not address the jurisidictional arguments.g2/ Mr. Eddleman's response to the motion for summary disposition did not dispute Applicants' statement of facts as to which there was no genuine issue to be heard -- necessarily resolving the contention in favor of g5/ The text of Contention 64(f) is set out in Memorandum and Order (Ruling on Motions for Summary Disposition of Eddleman Con-tentions 29/30, 64(f), 75, 80 and 83/84) at 5 n.1. (Nov. 30, 1983).
Es/ See Applicants' Motion for Summary Disposition of Intervenor '
Wells Eddleman's Contention 64(f) (Spent Fuel Shipping Cask Pres-sure Relief Valve), dated September 1, 1983.
g2/ See NRC Staff Response in Support of Applicants' Motion for Summary Disposition of Wells Eddleman's Contention 64(f), dated September 26, 1983.
Appliccntsg8/; inntocd ha crgu:d tharo, cs here on appeal, that "a binding agreement with the NRC" or license " conditions" should be required to ensure Applicants do not in the future " change their minds" and ship spent fuel to Harris with the valves in question.
Intervenors' Brief at 26.89/ Thus, Intervenors are not really ap-pealing the grant of summary disposition on Eddleman Contention 64(f), but rather complain of the failure of the Licensing Board to require a condition to Applicants' operating license for the Harris Plant restricting the configuration of the shipping cask l for any shipments of spent fuel from CP&L's other nuclear facili-ties to the Harris Plant.
Such conditions would be inappropriate; first, because the Licensing Board subsequently determined that it does not have jurisdiction over health and safety issues (as distinguished from environmental effects) primarily associated with other licensed facilities.90/ Secondly, shipping casks are subject to separate NRC licensing procedures. Any proposed amendment to the Certifi-cate of Compliance for the IF-300 cask most likely would be re-quested generically for all four casks presently in use and not Eg/ See 10 C.F.R. $2.749(a) (all material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party).
89/ See Wells Eddleman's Response to Summary Disposition Motion re Eddleman 64(f), dated September 27, 1983.
90/ See Memorandum and Order (Ruling on Various Safety and Proce-dural Questions), at 3 (July 27, 1984); see also Applicants' Mo-tion for Summary Disposition of Intervenor Wells Eddleman's Con-tention 64(f), supra, at 9-11.
just for the cask owned by CP&L. In the event state-of-the-art advances in shipping casks allowed for " wet" shipments of spent ,
fuel in the future with new pressure relief systems, CP&L would not want to-restrict its ability to utilize such new technology.
Certainly, it would be anomalous for CP&L to be authorized to ship spent fuel to and from its other licensed facilities in any cask which is properly licensed by the NRC but to be restricted by k
\
~ license condition to its Harris operating license from using such a cask for shipments to the Harris facility.91/ Thus, even if the Licensing Board below had jurisdiction over health and safety issues involving such spent fuel shipments, the license condition suggested by Mr. Eddleman would be inappropriate and would serve no purpose.92/
F. Eddleman Contention 132 Eddleman Contention 132 states as follows:93/
Applicants have failed to provide the design for a direct water level indicator for the reactor vessel.
91/ See Applicants' Reply to Board Questions of November 30, 1983 (Spent Fuel Shipping Cask), dated December 29, 1983; NRC Staff Re-sponse to Licensing Board Inquiry Regarding Spent Fuel Shipping Casks, dated December 30, 1983.
92/ Intervenors have available to them the procedures provided by the Commission at 10 C.F.R. $ 2.206, if, at some future date, they believe spent fuel ~ shipments are being made in a manner that en -
danger public health and safety. The issue which Intervenors would have the Appeal Board address now is hypothetical and dces not present an issue in dispute.
93/ See Memorandum and Order (Ruling on Motions for Summary Dis-position), at 20 (April 13, 1984).
F Tho NRC's rcquir&manto for racctor vessel level indication instru-mentation (which eventually became a requirement for an inventory tracking system) were still evolving during the period when con-tentions were being proposed for adjudication in this proceeding.
Subsequently, the Commission clarified its position mandating that an integrated system which not only measures water level but pro-vides other information needed for adequate operator response in potential inadequate core cooling (ICC) situations is required for the operation of pressurized water reactors. The Commission re-viewed several such systems and found inter alia that the Reactor Vessel Level Instrumentation System developed by Westinghouse is acceptable for tracking reactor coolant system inventory and pro-vides an enhanced ICC instrument package when used in conjunction with core exit thermocouple systems and subcooling margin moni-tors.94/
Applicants' motion for summary disposition established that the Westinghouse reactor coolant inventory tracking system was being installed as a part of the ICC instrumentation system at the Harris Plant.9}/ Applicants' motion and the NRC Staff's response in support thereof9s/ -- both supported by affidavits by qualified experts -- clearly demonstrate that reactor level or inventory 94/ Id. at 20-21; see also NRC Generic Letter No. 82-28, Inade-quate Core Cooling Instrumentation System (Dec. 10, 1982).
91/ Applicants' Motion for Summary Disposition of CHANGE Conten-tion 44 and Eddleman Contention 132, dated December 7, 1983.
91/ NRC Staff Response in Support of Applicants' Motion for Summary Disposition of CHANGE Contention 44 and Wells Eddleman Contention 132, dated December 28, 1983.
system instrumentation acceptable to the Commission is being in-stalled at the Harris Plant in contradiction to the assertion in Eddleman Contention 132.
l l
I Mr. Eddleman's perfunctory (one page) response to the motion for summary disposition concedes: "As contention 132 is written, I have no available response to Applicants and Staff."97/ Inter-venors now attempt on appeal, as Mr. Eddleman did on discovery, to shift the focus of the issue to alleged shortcomings of the Westinghouse system -- for which Intervenors have advanced no sup-ported technical basis. While these arguments as raised during discovery were superfluous to the contention as admitted, Appli-l cants addressed the alleged inadequacies in the motion for summary disposition (at 11-13). Mr. Eddleman failed to address Appli-cants' technical response to " problems" asserted by him during I discovery. Now, on appeal, Intervenors attempt to resurrect these alleged inadequacies which were never part of the original conten-tion. However, Mr. Eddleman failed to come forward with a techni-cal basis for expanding the scope of the contention as originally admitted. Even Mr. Eddleman admits that Contention 132 has been satisfied. Thus, there is no supported claim of error by the Li-censing Board advanced in this appeal and it must be rejected.
97/ Wells Eddleman's Response to Summary Disposition on Eddleman 132, dated January 3, 1984.
G. Eddicmen Contantion 1320(II)
Eddleman Contention 132C(II) alleges that there are locations in the Harris Plant control room where an operator would have his view of certain panels blocked by other panels. Mr. Eddleman con-cludes that the operator's inability to see certain panels can im-peril' public health and safety.9@/ Applicants' motion for summary disposition, supported by the NRC Staff, agreed that there are lo-cations in the control room where an operator's view of a certain panel could be blocked by another panel, but demonstrated that this does not raise a safety concern.99/ Applicants pointed out t that NRC regulations require that two operators, one of whom is a senior operator, must be in the control room and that one operator must be at the controls at all times. 10 C.F.R. $ 50.54(m)(2)(1) and (iii). Applicants expect that a majority of the time there will be three operators and a shift foreman in the control room.
LBP-85-28, supra, 22 N.R.C. at 296. Thus, even if an operator were in one of the locations postulated by Contention 132C(II),
the other operator's or operators' visual access to the panels would be unimpeded. Furthermore, in one case, the panels which Mr. Eddleman found blocked were neither safety-related nor re-quired to be operated in an accident scenario. Id.
93/ The uncharacteristically detailed and narrowly specified con-tention is reprinted at LBP-85-28, supra, 22 N.R.C. at 295.
99/ Applicants' Motion for Summary Disposition of Eddleman Con-tention 132C(II), dated May 9, 1984; NRC Staff Response in Support of Applicants' Motion for Summary Disposition of Wells Eddleman's Contention 132C(II), dated May 29, 1984.
Thano fccts were not controverted by Mr. Eddleman in his re-sponse to Applicants' motion for summary disposition. Instead, he complained of the inability to perform his own independent review of the readability of certain controls.100/ On appeal, again In-tervenors do not argue that there was a genuine issue of material fact, rather they argue that the poor quality of copies of blue-prints and diagrams put Mr. Eddleman at a disadvantage in re-sponding to Applicants' motion for summary disposition. Interve-nors' Brief at 26.
Intervenors' arguments on appeal are both irrelevant and, in part, disingenuous. They are irrelevant because they do not address the uncontroverted facts that an operator will be at the l main control board at all times with visual access to all panels and indicators necessary for emergency responses and that certain of the panels which Mr. Eddleman postulated could be blocked from view have no safety function. They are disingenuous because Ap-plicants had made available to Mr. Eddleman original blueprints for use in responding to the motion for summary disposition. This appeal is frivolous and must be denied.101/
l 1
1 1
100/ Wells Eddleman's Response to Summary Disposition on Conten-tion 132C(2) (Control Room), dated June 14, 1984.
101/ Id. at 1. (" Applicants then kindly lent me the original blueprints, delivered by messenger, for use in responding to their motion for summary. disposition.")
H. Joint Contantions V and VI Joint Contentions V and VI addressed, respectively, Appli-cants' calibration of continuous air monitors and portable air samplers and the adequacy of Applicants' environmental monitoring #
system. The Intervenors claim that summary disposition was not an appropriate remedy where " Joint Intervenors did not respond promptly enough to discovery." Intervenors' Brief at 27.102/ It is clear that this claim is not an adequate ground for appeal; moreover, the characterization of the Joint Intervenors' failure to participate in the resolution of Joint Contentions V and VI as a failure to " respond promptly" to discovery is a misrepresenta-tion of the facts that led to dismissal of those contentions.
In fact, the Joint Intervenors simply ignored Applicants' l
-1 discovery requests on Joint Contentions V and VI, even refusing Applicants' offer of an extension of time in which to respond.103/
Applicants successfully moved to compel discovery.104/ The Joint Intervenors failed to comply with the Licensing Board's order to respond to discovery because according to their counsel "the press 102/ Although the Intervenors include Joint Contentions V and VI in their appeal from summary dispositions, those contentions actu-ally were dismissed with prejudice. Order (Ruling on Various Pro-cedural Questions and Eddleman Contention 15AA), dated May 10, 1984 (hereinafter "May 10, 1984 Order").
103/ See Applicants' Motion for Summary Disposition of Joint In-tervenors' Contention V (Continuous Air Monitors and Portable Air Samplers), dated February 27, 1984, at 2-6 (setting forth the dis-covery background on Joint Contentions V and VI).
104/ Memorandum and Order (Ruling on Discovery Disputes Between Applicants and Joint Intervenors), dated November 29, 1983.
of other business prevented them from preparing a response."105/
When Applicants moved for summary disposition, the Joint Interve-nors did not even respond. The Licensing Board found that the Joint Intervenors had effectively abandoned Joint Contentions V and VI and dismissed them with prejudice. May 10, 1984 Order.
In light of this procedural history, the Intervenors cannot maintain seriously that dismissal was unwarranted. The failure to comply with the Licensing Board's discovery order was grounds in and of itself for dismissal of the contentions.106/ Moreover, Ap-plicants presented comprehensive affidavits in support of summary disposition of Joint Contentions V and VI.107/ The NRC Staff sup-ported Applicants' motions for summary disposition.108/ Summary disposition of Joint Contentions V and VI was appropriate on the br.ais of this uncontroverted evidence.
105/ Letter of M. Travis Payne (counsel for Kudzu Alliance, one of the Joint Intervenors), dated December 9, 1983.
106/ Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452, 454 (1981); see also Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 N.F C. 1400, 1421 (1982).
107/ Applicants' Motion for Summary Disposition of Joint Interve-nors' Contention V (Continuous Air Monitors and Portable Air Sam-plers), dated February 27, 1984; Applicants' Motion for Summary Disposition of Joint Intervenors' Contention VI (Monitoring Sys-tem), dated March 9, 1984.
108/ NRC Staff Response in Support of Applicants' Motion for Sum-mary Disposition of Joint Intervenors' Contention V, dated March 23, 1984; NRC Staff Response in Support of Applicants' Motion for Summary Disposition of Joint Intervenors' Contention VI, dated April 5, 1984.
V. The Licensing Board Did Not Err in its Decisions, Based Upon the Record Compiled at Evidentiary Hearings, Resolving Eddleman Contentions 9G and 65 in Applicants' Favor A. Eddleman Contention 9G Intervenors argue that the Licensing Board misinterpreted Eddleman Contention 9G, and that Applicants for various reasons failed to carry their burden of proof. Intervenors' Brief at 28-29. All of Intervenors' arguments are without merit.
First, Intervenors assert that the Licensing Board misinter-preted Eddleman Contention 9G to concern only " test failures,"
while the contention "[o]n its face . . . is concerned with fraud-ulent testing or qualification by similarity." Intervenors' Brief at 28. This is a meaningless semantic distinction. Eddleman Contention 9G stated:
There is inadequate assurance that failure to report all results of environmental qualifi-cation tests, including failures, has been brought to light in connection with electrical equipment installed in Harris. This includes past test failures of equipment which subse-quently passes an EQ test and test failures of equipment which is said to be qualified by similarity. (Ref. Item 2, Page 5, L. D. Bustard et al., Annual Report: Equipment Qualification Inspection Program, Sandia National La-boratories, FY83.)
LBP-85-28, supra, 22 N.R.C. at 267, Finding 1 (emphasis added).109/ Contrary to Intervenors' argument, the Licensing 109/ The scope of Eddleman Contention 9G as litigated was limited to the particular referenced item (item 2, p. 5) taken from the Sandia Annual Report. See Tr. 5662-71. The item questioned the use of a Rockbestos environmental qualification test report to qualify certain types of Rockbestos cable. See LBP-85-28, supra, 22 N.R.C. at 286, Finding 100. Contrary to Intervenors' claim, there is no addition to the " broader Contention Rockbestos issue. 9G" (Intervenors' Brief at 29) in
Board did discuss the issue of test failures of Rockbestos cable which Rockbestos claimed to be qualified by similarity. See id.
at 286, Finding 100.
In any event, the argument is immaterial since Applicants did not rely on Rockbestos qualification tests to qualify the Rockbestos cables to be used at the Harris Plant. Id., Finding 102. Applicants have qualification test data independent of Rockbestos which demonstrate that the cables are environmentally qualified. Id. at 286-87, Findings 103-105. The NRC Staff con-cluded that this was an acceptable means of qualifying the Rockbestos cables. Id. at 288, Finding 110.
Intervenors raise several questions, none of which was raised below,110/ concerning Applicants' reliance on this independent test data. First, Intervenors state that Applicants approved the QA program of Conax (one of the sources of test data used) through an industry program (CASE) that relied on another utility's audit.
Intervenors' Brief at 29. Qualification of a vendor's QA program through the CASE program is an accepted industry practice.
Tr. 5529 (Hate). Intervenors fail to explain why reliance on CASE should be considered improper or inadequate. Nor did Intervenors pursue on cross-examination the question of the propriety or ade-quacy of the CASE program. See Tr. 5529-30.111/ At any rate, in 110/ Absent a serious substantive issue, which Intervenors have not shown to exist here, the Appeal Board does not ordinarily en-tertain arguments that are raised for the first time on appeal and that the licensing board thus had no opportunity to address.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B), ALAB-463, 7 N.R.C. 341, 348 (1978).
111/ Intervenors claim, in this connection, that " questions con-cerning independent attempts to ferret out fraud were . . . not (Continued next page) addition to the CASE audit used by CP&L to qualify Conax as a ven-dor, Conax's QA program was independently inspected and approved by Ebasco. Applicants' Supplemental Testimony of Robert W.
Prunty, Richard M. Bucci, Edwin J. Pagan and Kumar V. Hate in Re-sponse to Eddleman Contention 9G (Type Test Reporting), ff.
Tr. 5515, at 4. See also Tr. 5528-29. Intervenors do not raise any questions concerning this independent Ebasco evaluation.
Second, Intervenors observe that the " qualification test parameters were not in the testimony . . . ." Intervenors' Brief at 29. Again, Intervenors had ample opportunity to question the f witnesses on the test parameters and simply failed to do so. See Tr. 5524-25.
Third, Intervenors state that "other cables are to be quali-fled by similarity to one passing a text (sic] by CONAX which CP&L did not witness directly." Intervenors' Brief at 29. Intervenors offer no reason to question the adequacy of Applicants' similarity analysis. See LBP-85-28, supra, 22 N.R.C. at 286, Finding 103.
Neither do Intervenors show why it was necessary for Applicants to witness the qualification test directly.112/
(Continued) allowed." Intervenors' Brief at 29. None of the record refer-ences supplied by Intervenors supports this allegation. The only time questioning by Intervenors was curtailed was when the ques-tioning attempted to go beyond the scope of the admitted Rockbestos issue. See Tr. 5671.
112/ Intervenors' remaining arguments concern reporting of test failures generally, and thus go beyond the scope of the admitted contention. See note 109, supra. These arguments also are raised for the first time on appeal. See Hartsville, ALAB-463, supra, 7 (Continued next page)
Thus, Intervenors provide no basis for questioning the Li-censing Board's conclusion that Applicants' environmental qualifi-cation program has adequately addressed concerns regarding test failures of Rockbestos cables. See id. at 288, Finding 112.
B. Eddleman Contention 65 The Licensing Board has described accurately the relevant history of Eddleman Contention 65 and the state of the evidentiary record compiled. See LSP-85-28, supra, 22 N.R.C. at 289-93. In short, the contention initially challenged the concrete in the basemat, exterior walls and dome of the harris Plant containment.
In ruling on Applicants's motion for summary disposition, the Li-censing Board, in a decision not challenged on appeal, narrowed the focus of the contention to 13 of the 106 concrete placements.
At the hearing, the controversy was narrowed still further to six placements. Id. On appeal, Intervenors discuss the documentation on two placements (Applicants' Exs. 14 and 21), Intervenors' Brief (Continued)
N.R.C. at 348. In any case, none of the arguments has any basis.
Intervenors point out that a CP&L witness "had no feel for the percentage of suppliers CP&L audited (Tr. 5555-56), [versus those audited by the] industry." Intervenors' Brief at 29. As discussed supra, Intervenors do not even attempt to show why it is improper to qualify a vendor through the CASE system. Intervenors also claim that CP&L "gets its assurances from the tester's 'own inter-nal quality assurance program' . . . ." Intervenors' Brief at 29.
Intervenors here ignore the record evidence concerning steps taken by Applicants to assure the adequacy of vendors' quality assurance programs, as well as evidence concerning identification of test failures (as in the case of Rockbestos) which results from inspec-tions and audits of vendors by the NRC. See LBP-85-28, supra, 22 N.R.C. at 287-88, Findings 107, 109.
ct 30-31, and appsar to advance three asserted errors by the Li-censing Board.
First, Intervenors cite as error the Licensing Board's reli-ance upon NRC Staff testimony that a potential problem of insuffi-cient clearance from asbestos board to cadweld in a placement (Ap-plicants' Ex. 21) was identified, corrected and so documented.
LBP-85-28, supra, 22 N.R.C. at 293, Finding 15. The Staff wit-nesses based their conclusions on a review of the records and dis- I cussions with inspection personnel. Harris et al., ff. Tr. 6320, at 45. On cross-examination, Mr. Eddleman established that the
" records" in question were part of the. pour package. Tr. 6388.
No questions were asked concerning the Staff's discussions with inspection personnel. On appeal, Intervenors now assert that the
" records" cannot be relied upon because Mr. Eddleman cannot per-sonally conclude from them what the Staff has,113/ and because the inspection personnel were not produced as witnesses. Intervenors' Brief at 30.
While it is not cited by the Licensing Board, other testimony by Applicants' witnesses patiently explained to Mr. Eddleman where therecordsdocumentthaNallspacingviolations--includingthe clearance between asbestos board and cadweld -- were corrected and verified. Tr. 6069-73. It is irrelevant to an assessment of the evidence that Mr. Eddleman still does not understand it. As to the Staff's reliance upon discus'sions with inspection personnel, 113/ Unfortunately, a great deal of hearing time was devoted in partly unsuccessful efforts to teach Mr. Eddleman how to read the documentation he acquired in discovery.
Mr. Eddleman raised no objection to the admission of the testimony below and, given the other available evidence, Intervenors' objec-tion now is superfluous.
Second, Intervenors inexplicably attribute as error by the Licensing Board an alleged confusion by Staff witness Bemis, who reportedly did not refer in his testimony to inspections he iden-tified in an earlier affidavit. Intervenors' Brief at 30. Inter-venors argue that the Licensing Board ignored this question of the Staff's credibility. Id. at 31. The Board ignored this argument because Mr. Eddleman did not rai~se it in the proposed findings he filed with.the Licensing Board.114/ Consequently, the argument should not be entertained on appeal. Hartsville, supra, ALAB-463, 7 N.R.C. 341, 348 (1978). In any case, on cross-examination, Mr.
Bemis testified that he simply could not explain the differences in the lists of inspection reports without reading them.115/
Tr. 6390-92. There is no arguable significance to this testimony.
Finally, Intervenors argue that the Licensing Board's Finding 17 on this contention is deficient because it ignores evidence that Applicants violated the American Concrete Institute code in connection with the placement documented in Applicants' Exhibit
- 14. Intervenors' Brief at 31. The strength testing and evalua-tion of this placement was considered at length on the record,116/
114/ See Wells Eddleman's Proposed Findings on Contention 65, dated December 21, 1984.
115/ One plausible explanation is that at the time summary dispo-sition papers were filed, the Licensing Board had not yet narrowed the scope of the contention to the thirteen placements which were at issue when testimony was filed.
116/ See Applicants' Reply to Wells Eddleman's Proposed Findings on Contention 65, dated January 4, 1985, at 13-16.
but is ganarelly ignorcd by Intervenors. As the Licensing Board found, compressive strength tests of test cylinders established the acceptability of the strength in this containment placement.
LBP-85-28, supra, 22 N.R.C. at 294; Tr. 6083 (Parsons), 6324 (Harris). Nevertheless, Applicants drilled five core samples from this placement for additional testing. The results of two of the five cores -- the ones cited by Intervenors (2440 and 3620 psi) erroneously as cylinder test results117/ -- were not considered because of the small size of the cores or improper testing.
Harris et al., ff. Tr. 6320, at 27; Tr. 6087 (Parsons). The other three cores met design requirements. LBP-85-28, supra, 22 N.R.C.
at 294; Harris et al., ff. Tr. 6320, at 27; Kanakaris et al., ff.
Tr. 5764, at 18. In short, the Licensing Board did not ignore the evidence, but assessed it accurately in the face of Mr. Eddleman's confused and selective references to it.
Intervenors have advanced no credible basis for disturbing the Licensing Board's well-reasoned decision against Eddleman Con-tention 65.
117/ Concrete cylinder test specimens are routinely made to test compressive strength. Kanakaris et al., ff. Tr. 5764, at 10. In contrast, this is the only placement of the thirteen for which drilled core samples were taken. Tr. 5977-78. On appeal, as in Mr. Eddleman's examination and proposed findings below, Interve-nors confuse the cylinder tests with drilled core sample tests.
See Tr. 6081, lines 21-24; Tr. 6082, lines 19-23; Tr. 6084, lines 1-6.
CONCLUSION For all of the foregoing reasons, the Licensing Board's deci-sions on safety contentions should be affirmed.
Respectfully submitted, Thomas A. Baxter,'P.C.
John H. O'Neill, Jr., P.C.
Pamela H. Anderson Michael A. Swiger SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Samantha Francis Flynn Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Applicants Dated: November 22, 1985
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL and NORTH CAROLINA EASTERN )
MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing "Appli-cants' Brief in Reply to Intervenors' Appeal From the Partial Initial Decision on Safety Contentions" were served by deposit in the United States mail, first class, postage prepaid, this 22nd day of November, 1985, to all those on the attached Ser-vice List.
e- e_ = .
Thomas A. Baxter, P.C.
l 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL and NORTH CAROLINA EASTERN )
MUNICIPAL POWER AGENCY )
. )
(Shearon Harris Nuclear Power )
l Plant) )
SERVICE LIST
.- Thomas S. Moore, Esquire Charles A. Barth, Esquire Chairman Janice E. Moore, Esquire.
Atomic Safety and Licensing Office of Executive Legal Directo Appeal Board U.S. Nuclear Regulatory Cossonission U.S. Nuclear Regulatory Comunissio Washington, D.C. 20555 ,-
Washington, D.C. 20555 Docketing and Service Section Dr. Reginald L. Gotchy Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commissio Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Comunission Washington, D.C. 20555 Mr. Daniel F. Road, President CRANGE Mr. Howard A. Wilber P.O. Box 2151 Atomic Safety and Licensing Raleigh, North Carolina 27602 Appeal Board U.S. Nuclear Regulatory Cosetission Washington, D.C. 20555 John D. Runkle, Esquire Conservation Council of James L. Kelley, Esquire t na At afety and Licensing Board Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Cosumission Washington, D.C. 20555 M. Travis Payne, Esquire Edelstein and Payne P.O. Box 12607 A om af ty a icensing Board Raleigh, North Carolina 27605 U.S. Nuclear Regulatory Comunission Washington, D.C. 20555 Dr. Richard D. Nilson 729 Runter Street Dr. James 5. Carpenter Apex, North Carolina 27502 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comunission Washington, D.C. 20555
I Mr. Wells Eddleman 806 Parker Street Durham, NC 27701 Richard E. Jones, Esquire Vice President and Senior Counsel Carolina Power & Light Company P.O. Box 1551 Raleigh, North Carolina 27602 Dr. Linda W. Little Governor's Waste Management Board 513 Albemarle Building 325 North Salisbury Street Raleigh, North Carolina 27611 Bradley W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Stree'.
Atlanta, Georgia 3vJr3 ,
Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 H. A. Cole, Jr., Esquire Special Deputy Attorney General 200 New Bern hvenue Raleigh, North Carolina 27601
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