ML20137S864
| ML20137S864 | |
| Person / Time | |
|---|---|
| Issue date: | 08/31/1985 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V22-N01, NUREG-750, NUREG-750-V22-N1, NUDOCS 8509300527 | |
| Download: ML20137S864 (184) | |
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l Available from Superintendent of Documents t
U.S. Govemment Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 4 hardbound editions for this publication.
Single copies of this publication are available from National Technical Information Service, Springfield, VA 22161 Brors in this publication may be reported to the Division of Technical Information and Document Control, Office of Administration, 1
U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (301/492-8925) or (301/492 7566) l L
NUREG-0750 Vol. 22, No.1 Pages 1-176 NUCLEAR REGULATORY COMMISSION ISSUANCES 1
l July 1985 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).
l The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dent legal significance.
.U.S. NUCLEAR REGULATORY. COMMISSION Prepared by the Division of Technical Information and Document Control, Offica of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (301/492-8925)
COMMISSIONERS Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr.
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Alan S. Rosenthal, Chairman, Atomic Safety and Ucensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety and Ucensing Board Panel i
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r-CONTENTS Issuance of the Nuclear Regulatory Commission PlilLADELPillA ELECTRIC COh1PANY (Limerick Generating Statiori. Units I and 2)
Dockets 50-352-OL,50-353-OL hlEht.OR ANDUht CLI 85-13, July 24,1985.............. !
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Issuances of the Atomic Safety and Licensing Appeal Boards DUKE POWER COh1PANY, et al (Catawba Nuclear Station, Units 1 and 2) l l
Dockets 50-413-OL, 50-414-OL l
DECISION, ALAB 813, July 26,1985...
...... 59 l
LOUISIANA POWER & LIGIIT COh1PANY I
(Waterford Steam Electne Station, Unit 3)
Docket 50-382-OL I
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t DECISION, ALAB 812, July 11,1985.
5 issuances of the Atomic Safety and Licensing Boards ARIZONA PUBLIC SERVICE COh!PANY, et al..
(Palo Verde Nuclear Generating Station, Units 2 and 3) l Dockets STN 50-529 0L, STN 50-530-OL
ORDER DISS11SSING PROCEEDING, l
LBP-85-26. July 22,1985....
118 BOSTON EDISON CON 1PANY (Pilgrim Nuclear Power Station)
Docket 50-293-OLA (ASLBP No. 85 510-01-LA) h!Eh10RANDUh1 AND ORDER, LBP 85-24. July 19,1985..
........ 97 111 m__.____________.__
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i COMMONWEALTil EDISON COMPANY (Braidwood Nuclear Power Station, Units I and 2)
Dockets 50-456, 50-457 MEMORANDUM DETAILING RATIONALE IN SUPPORT OF JUNE 21,1985 ORDER ON ADMISSIBILITY OF NEINER FARMS CONTENTION 4 (RAILROAD EXPLOSION), LBP-85-27, July 30,1985...
126 ILLINOIS POWER COMPANY, et al.
(Clinton Power Station, Unit 2)
Docket 50-462 OL MEMORANDUM AND ORDER, LBP-85-22, July 11,1985.............
89 PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units I and 2)
Dockets 50-352 0L, 50-353-OL (ASLBP No. 81-465-07-OL)
FOURTH PARTIAL INITIAL DECISION, LBP 85 25 July 22,1985...............
101 UNIVERSITY OF LOWELL (Training and Research Reactor) l Docket 50-223-SP (ASLBP No. 85 509-02-SP) j MEMORANDUM AND ORDER, LBP 85-23, J uly 19,1985...............
95 Issuances of Directors' Decisions COMMONWEALTH EDISON COMPANY AND ALL 4
LIGHT-WATER REACTORS i
(Zion Station, Unit 1)
Docket 50-295 DIRECTOR'S DECISION UNDER 10 C.F.R. ( 2.206, D D-8 5 10, J uly 3, 19 85............................. 143 PHILADELPHIA ELECTRIC COMPANY
.i (Limerick Generating Station, Units 1 and 2) l Dockets 50-352, 50-353 i
DIRECTOR'S DECISION UNDER 10 C.F.R. ( 2.206, DD 85-il, July 29,1985.............................
149 Ir 4
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issuance of Denial of Petition for Rulemaking JOHN L. NANTZ Docket PRM 50-35 DENIAL OF PETITION FOR RULEMAKING, 173 DPRM-85-3, July 26,1985 i
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Cite as 22 NRC 1 (1985)
CL1 85-13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
i Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine I
Frederick M. Bemthat Lando W. Zech, Jr.
In the Matter of Docket Nos. 50 352-OL 50-353-OL PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2)
July 24,1985 l
The Commission reviewed the Limerick Ecology Action's comments on effectiveness of the Second and Third Partial initial Decisions of the Licensing Board (LBP-84-31, 20 NRC 446 (1984), and LBP 8514, 21 NRC 1219 (1985)). These comments addressed delegation of issues to the Staff through license conditions, need for local organizations to ap-prove their emergency plans, adequacy of surveys of transport-depend-ent individuals, possible measures to mitigate severe accidents, and pro-cedural rulings. The Commission also reviewed the Licensing Board de-cisions sua sponte. The Commission determined that neither the com-ments nor the decisions warranted staying the effectiveness of the deci-sions. This Memorandum did not affect the Commission's prior determi-nation that questions involving hearing rights of the inmates at the State Correctional Institution at Graterford, Pennsylvania, warrant staying ef-fectiveness of the authorization for issuance of a full-power operating license.
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i MEMORANDUM Pending before the Nuclear Regulatory Commission ("NRC" or
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" Commission") are comments by intervenor Limerick Ecology Action
(" LEA") on whether the Commission should make effective the Atomic Safety and Licensing Board's (" Licensing Board") Partial Initial Decisions LBP-84-31, 20 NRC 446 (1984), and LBP-85-14, 21 NRC 1219 (1985), which would constitute part of any decision to authorize
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the Director, Office of Nuclear Reactor Regulation (" Director") to issue to the applicant Philadelphia Electric Company ("PECo") a full-2 power license for the Limerick Generating Station (" Limerick").
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By a separate Memorandum -and Order, CLI-85 il, 21 NRC 1585 (1985), the Commission declined to authorize issuance of a full-power operating license pending further consideration of the hearing rights of one of the parties, the inmates at the State Correctional Institution at Graterford, Pennsylvania,
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i This Memorandum does not affect that determination. Rather, the purposes of this Memorandum are to advise LEA and the other parties I
of the Commission's view that: (1) the concerns expressed by LEA do not appear to warrant staying the effectiveness of the Licensing Board's Partial Initial Decisions; and (2) no other aspect of those Partial Initial Decisions appears to warrant a stay of effectiveness.
In conducting an immediate effectiveness review, the Commission ap-i plies the criteria in 10 C.F.R. j 2.764(f)(2)(i) to parties' comments to determine whether to stay the effectiveness of a Licensing Board's deci-sion.' The Commission has applied these criteria to the comments which LEA has submitted pursuant to j 2.764(f) and, for the reasons stated below, finds nothing.in those comments which would warrant staying the effectiveness of the Licensing Board's decisions.
LEA has challenged the following Licensing Board actions: (1) post-hearing verification by the NRC Staff that license conditions on traffic control and' staffing needs have been satisfied; (2) the finding of ade-quate assurance that the radiological emergency response plans will be implemented; (3) the use of survey rather than census data to determine the number of transportation-dependent individuals; (4) the refusal to admit contentions to additional' measures to mitigate the consequences 8 The entena in { 2.764(n(l)(i) are:
.i I. the gravity orthe substantive issue;
- 2. the likehhood that at has been resolved encorrectly below;
- 3. the desree to which correct resolution or the issue would be prejudiced by operation pending review; and
- 4. other relevant pubhc interest ractors.
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of a severe accident; and (5) various procedural rulings on time for cross-examination and consideration of evidence. The Commission has reviewed LEA's comments based on the criteria in { 2.764(f)(2)(i) and finds, for the reasons below, that a stay of effectiveness is not warrant-ed.2 First, LEA contended that its rights to a hearing under i 189a of the Atomic Energy Act were denied by the license conditions imposed by the Licensing Board. Those conditions left to the NRC Staff the re.
j sponsibility to make post-hearing verifications that post-accident traflic' control measures have been implemented and that emergency planning l
staffing has been accomplished. The Commission's preliminary review of those conditions indicates that areas of concern are quite narrow and are arguably within the scope of matters which can be left to post hearing
' ' verification by the NRC Staff. Therefore, the issues are neither grave nor substantially likely to have been incorrectly resolved by the Licens-ing Board, and operation pending review will not prejudice further re-j view.
i Second LEA contended that the record does not support a finding of j
adequate assurance that the radiological emergency response plans will be implemented because some of the local organizations have not adopt-l ed the plans. Howevet, LEA acknowledged that formal plan adoption is not required by the NRC's emergency planning regulations. The Licens-l ing Board determined that the plans can be implemented and that the j
local organizatione, have agreed that they will implement a plan. Based on our preliminary review we are not prepared to say that the Board was i
incorrect in its analysis of this issue. Moreover, we believe that operation pending the review will not prejudice further review.
Third, LEA contended that transport-dependent individuals were not adequately identified by survey data. The Licensing Board appears to have adequately explained the adequacy of such data. Therefore, this issue does not appear substantial Moreover, licensing will not prejudice any appeals of this issue.
Fourth, LEA contended that the Final Environmental Statement for Limerick is incomplete for failure to consider design alternatives to miti-gate the risk of severe accidents. This issue does not raise serious safety concerns because the Licensing Board has found that the public's health and safety is adequately protected by the equipment already incorporated into the Limerick facility for mitigating the effects of severe accidents.
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2 The Commesseon notes that Atomic safety and Licensang Appeal Board C* Appeal Board") has j
reviewed these same issues m denyms LEA's stay request pendmg the resolution of the appeal and
-l determmed that LEA did not make a strong showmg on any of these arguments. ALAB.808. 21 NRC
!$95.1600 (1985).
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Moreover, at oral argument before the Appeal Board, LEA conceded that this issue could be resolved after licensing. Therefore, there is no dispute that even if the Licensing Board's decision is found to be incor-
' ' o rect, correct resolution of the issue would not be prejudiced by operation pending review.
Finally, LEA contended that the Licensing Board made some incorrect procedural rulings. These rulings do not appear to raise grave issues and our preliminary rc~.iew does not suggest any substantial likelihood that the rulings were incorrect.
LEA has also alleged that a stay would not adversely affect the Appli-cant because a shortage of cooling water currently would prevent the plant from going to full power; and a stay would not afTect the public be-j
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cause sufficient inexpensive electricity is already available. In view of our analysis of the other factors, these arguments do not support a stay, For the foregoing reasons, the Commission has determined that noth-ing in LEA's comments would warrant staying the efTectiveness of the Licensing Board's Partial Initial Decisions, LBP 84 31 and LBP-85-14.
The Commission has also reviewed these decisions sua sponte and. finds nothing in them which would warrant staying their effectiveness. This conclusion is without prejudice to the Appeal Board's pending review of these issues.
For the Commission SAMUEL J. CHILK Secretary of the Commission
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Dated at Washington, D.C.,
sl this 24th day of July 1985.
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Atomic Safety and Licensing Appeal Boards issuances l
l ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosentha!. Chairman l
Dr. W. Reed Johnson Thomas S. Moore Christine N. Kohl Gary J. Edles Dr. Reginald L. Gotchy Howard A. Wilber I
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I Cite as 22 NRC S (1985)
ALAB 812 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Christine N. Kohl, Chairman Dr. W. Reed Johnson Howard A. Wilber l
l In the Matter of Docket No. 50-382-OL t
LOUISIANA PCWER & LIGHT COMPANY (Waterford Steam Electric Station, Unit 3)
July 11,1985 i
The Appeal Board denies most of Joint Intervenors' motion to reopen j
the record in this operating license proceeding on issues of quality assur-ance and management character and competence and refers the remain-der to the Commission. insofar as it raises issues that may relate to mat-ters under investigation by NRC's Office of Investigations. The Appeal Board also denies as moot Joint Intervenors' motion for a protective order.
RULES OF PRACTICE: REOPENING OF RECORD A successful motion to teopen the record of an adjudicatory proceed-ing must be timely, address a significant safety or environmental issue, and show that a different result might have been reached had the newly proffered material been censidered initially. Bare allegations or the simple submission of new contentions is not enough. Louisiana Power &
Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087,1089 (1984). See also Pacific Gas and Electric Co. (Diablo 5
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i Canyon Nuclear Power Plant, Units I and 2), CLI-81-5,13 NRC 361, 363 (1981).
RULES OF PRACTICE: REOPENING OF RECORD (SPECIFICITY)
At a minimum, the new material in support of a motion to reopen must be set forth.with a degree of particularity in excess of the basis and specincity requirements contained in 10 C.F.R. s 2.714(b) for admissible contentions. It must be tantamount to evidence and possess the attri-butes set forth in 10 C.F.R. ! 2.743(c) defining admissible evidence for adjudicatory proceedings. Specifically, the new evidence supporting the motion must be relevant, material and reliable. Paci/Ic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-775, 19 NRC i36I, t366-67, aD'dsub nom. San Luis Obispo Mothersfor Peace
- v. NRC, 751 F.2d 1287 (D.C. Cir.1984), vacated in part and reh'g en banc granted on other grounds, 760 F.2d 1320 (l985). See also id. at i367 n.18.
RULES OF PRACTICE: REOPENING OF RECORD A motion to reopen that raises previously uncontested issues must also satisfy, in addition to other requirements, the standards for admit-ting late-filed contentions embodied in 10 C.F.R. { 2.714(a)(1). Paci/7c Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI-82 39,16 NRC 1712,1714-15 (1982).
)
RULES OF PRACTICE: REOPENING OF RECORD The burden of satisfying all of the requirements of a motion to reopen 1
that raises previously uncontested issues is a heavy one. See Kansas Gas -
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and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-l 462, 7 NRC 320, 338 (1978). See also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), CLI-85-7,.21 NRC 1104,1106 i
i (1985).
1 ATOMIC ENERGY ACT: SAFETY FINDINGS Neither the Atomic Energy Act of 1954, as amended,'nor the Com-
~ mission's implementing regulations mandate a demonstration of error-free construction. What they require is simply a finding of reasonable 6
i
i assurance that, as built, the facility can and will be operated without en-dangering the public health and safety. 42 U.S.C. ff 2133(d),2232(a);
10 C.F.R. 6 50.57(a)(3)(i). See also Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343,345 (1983).
ADJUDICATORY HEARINGS: - SCOPE OF REVIEW In examining claims of quality assurance deficiencies, one must look to the implication of those deficiencies in terms of safe plant operation.
j To determine if the requisite reasbnable assurance exists,'two questions must be addressed: (1) whether all ascertained construction errors I
have been cured, and (2) even if so, whether there has nonetheless f
been so pervasive a breakdown in the quality assurance procedures as to raise legitimate doubt about the overall safety of the facility. Ibid.
)
l RULES OF PRACTICE: REOPENING OF RECORD l
The considerations that must be addressed in examining claims of quality assurance deficiencies - i.e., whether all ascertained construction errors have been cured, and if so, whether there has nonetheless been so pervasive a breakdown in the quality assurance procedures as to raise legitimate doubt about the overall safety of the facility - are also perti-nent to the disposition of a motion to reopen on quality assurance. See Union Electric Co. (Callaway Plant, Unit 1), ALAB-750,18 NRC 1205, 1209-11 (1983); Pact /ic Gas and Electric Co. (Diablo Canyon. Nuclear l
Power Plant, Units I and 2), ALAB-756,18 NRC 1340,1344-45 l
(1983), affd sub nom. San Luis Obispo Mothersfor Peace v. NRC, 75l F.2d 1287 (D.C. Cir.1984), vacated in part and reh's en banc granted on other grounds, 760 F.2d 1320 (1985); Diablo Canyon, ALAB-775,19 NRC at 1367.
QUALITY ASSURANCE: REQUIREMENTS The importance of " managerial attitude" to an applicant's quality assurance program - i.e., the willingness of company officials to imple-ment the program to the fullest - has long been recognized. Consumers Power Co. (Midland Plant, Units I and 2), ALAB-106,6 AEC 182,184 (1973).
7
OPERATING LICENSE PROCEEDINGS: A PPLICANT'S CHARACTER AND CONIPETENCE (RE31EDIAL EFFORTS)
Remedial measures directed to construction and related quality assur-ance deficiencies may be considered as part of the appraisal of an appli-cant's character and competence. Houston Lighting & Power Co. (South Texas Project, Units I and 2), ALAB-799,21 NRC 360,37174 (1985).
RULES OF PRACTICE: REOPENING OF RECORD The untimely listing of historical examples of alleged construction quality assurance deficiencies is insufficient to warrant reopening of the record on the issue of mansgement character and competence. Diablo Canyon. ALAB-775,19 NRC at 1369-70.
RULES OF PRACTICE: REOPENING OF RECORD (NATURE OF SUPPORTING EVIDENCE)
Documents or portions of documents generated by an applicant or the staff in connection with the construction and regulatory oversight of a facility are acceptable evidence in support of a motion to reopen. Diablo j
l Canyon, CLI-81-5,13 NRC at 363.
QUALITY ASSURANCE: REQUIRENIENTS The NRC relies upon an applicant's quality assurance program, and its implementation, to ensure that a nuclear power plant and its component parts are designed to acceptable criteria and standards, and that the plant and its components are constructed or fabricated in accordance with their design. See 35 Fed. Reg. 10,498 (1970): 10 C.F.R. Part 50, Appen-dix B.
QUALITY ASSURANCE / QUALITY CONTROL:
REQUIRE 31ENTS (DELEGATION OF FUNCTIONS)
Delegation of quality assurance activities is acceptable under the
.,e,
NRC's regulations, so long a an applicant bears the ultimate responsibil-ity for quality assurance performance and is able to assure itself that its delegate is performing adequately.10 C.F.R. Part 50, Appendix B, Crite-rion 1; Commonweahh Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793,20 NRC 1591,1398 (1984).
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RULES OF PRACTICE: REOPENING OF RECORD (NATURE OF SUPPORTING EVIDENCE)
Serving up exhibits in support of a motion to reopen without citation to pertinent portions or an explanation of the purpose of the exhibits contributes nothing of value to a proceeding.
QUALITY ASSURANCE / QUALITY CONTROL: AUDIT REQUIREMENTS t
Although audits are an important element of an applicant's overall i
program and are required by 10 C.F.R. Part 50, Appendix B, Criterion l
XVIII, they provide but a third level of assurance. The principal levels of ass'urance are provided by, first, quality craftsmanship and, second, i
quality inspections.
QUALITY ASSURANCE / QUALITY CONTROL: DOCUM ENTS i
Proper dispositioning of documents generated in a' quality assurance program to identify and record discrepant or changed conditions is a vital part of a quality assurance program, because it is through this proc-ess that the suspect condition is eventually corrected or, in some cases, judged by a qualified person to be acceptable in spite of the discrepancy.
See 10 C.F.R. Part 50, Appendix B, Criteria XV, XVI. In addition, cer-1 tain of these documents must be evaluated for reportability to the Com-mission under 10 C.F.R. j 50.55(e) and 10 C.F.R. Part 21.
ADJUDICATORY BOARDS: ROLE Lengthy discussion of charges devoid of merit is unnecessary. See San Luis Obispo Mothersfor Peace. 75l F.2d at i320-21.
RULES OF PRACTICE: REOPENING OF RECORD (NATURE OF SUPPORTING EVIDENCE)
Exhibits that are unintelligible, are submitted without citation to perti-nent portions, are out of date, have no apparent relation to a specific charge, and generally do not support the point for which they are of-fered, do not constitute the " relevant, material and reliable" evidence required to support a motion to reopen. Diablo Canyon. ALAB-775,19 NRC at 1366-67.
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RULES OF PRACTICE: REOPENING OF RECORD (NATURE OF SUPPORTING EVIDENCE)
A draft is a working document and it is entirely reasonable that it will go through several revisions before it appears in final form and presuma-l bly reflects the actual, int nded position of the preparer. As such, it is not a particularly useful item on which to rely in support of a motion to reopen.
RULES OF PRACTICE: EX PARTE COMMUNICATIONS A board may not rely upon ex parte information, presented in camera by the Ollice of Investigations, in making licensing decisions. See State-ment of Policy; investigations, inspections, and Adiudicatory Proceedings, 49 Fed. Reg. 36,032, 36,033 (1984).
ATOMIC ENERGY ACT: LICENSEE'S CHARACTER The NRC's dependence on a licensee for accurate and timely informa-tion about its facility makes candor an especially important element of
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management character. See Metropolitan Edison Co. (Three Mile Island
)
Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,1208 (1984), rev'd in part on other grounds. CLI-85-2, 21 NRC 282 (1985). See also id.,
CLI-85-9, 21 NRC 1118,1136-37 (1985); South Texas,21 NRC at 371 (nexus of particular character trait to particular performance standards contemplated by Atomic Energy Act and NRC regulations is required).
RULES OF PRACTICE: REOPENING OF RECORD (NATURE OF SUPPORTING EVIDENCE)
Evidence consisting of the views of an individual submitted in affidavit form in support of a motion to reopen should be submitted in an aflida-vit by that individual and not by counsel. Diablo Canyon, ALAB-775,19 NRC at 1367 n.18.
QUALITY ASSURANCE / QUALITY CONTROL:
DEFICIENCIES (RESOLUTION)
Because the Commission must necessarily depend heavily on a permit-tee or licensee to report important information and to assume a role of at least partial self-policing, it is essential that the motivation to discover, analyze, and correct potentially safety-significant problems originate with plant management.
10 P
l
- - - - - ' - ~ - - - - - - - - '
OPERATING LICENSE PROCEEDINGS: APPLICANT'S CHARACTER AND COSIPETENCE lt is entirely appropriate to consider an applicant's successful remedial efTorts in connection with claims that it lacks the necessary character and competence to operate a plant safely. See South Texas, 21 NRC at 371-74. Not to do so would have the undesirable effect of discouraging applicants and licensees from promptly undertaking such corrective measures.
ADJUDICATORY BOARDS: ROLE
'l The adjudicatory boards are not obliged to do a party's research for it.
See Louisiana Power d Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-801, 21 NRC 479, 483-84 (1985); Philadelphia Electric Co.
(Limerick Generating Station, Units I and 2), ALAB-804,21 NRC 587, 592 & n.6 (1985).
RULES OF PRACTICE: LITIGABILITY OF ISSUES A contention challenging the adequacy of the staff's review of an ap-plication is not litigable in an operating license proceeding. See Pacvic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-728,17 NRC 777, 807, review dechned, CLI-83-32,18 NRC 1309 (1983). This foPows logically from the fact that it is the applicant that ultimately bears the burden of proving its entitlement to the privi-lege of an operating license. See Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-315,3 NRC 101,103 (1976).
ADJUDICATORY BOARDS: DELEGATED AUTIIORITY (RELATION TO NRC STAFF)
The NRC's adjudicatory boards are not empowered to direct the staff in the conduct of its inspection and investigatory duties. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1,2,3, and 4), CLI-80-12,1I NRC 514,516-17 (1980).
RULES OF PRACTICE: RESPONSIBILITIES OF STAFF The staff's review of contested technical issues is a significant ingre-dient of NRC licensing proceedings, even though its adequacy cannot be litigated per se, as a contention.
11 i
I
TECIINICAL ISSUES DISCUSSED:
Construction Quality Assurance (QA)
StalTing Welding Audits inspector Qualifications Welder Qualifications QA Documentation Pipe Supports.
APPEARANCES Lynne Bernabei and George Shohet, Washington, D.C., for joint inter-venors Oystershell Alliance and Save Our Wetlands, Inc.
i Bruce W. Churchill, Dean D. Aulick, and Alan D. Wasserman, Wash-ington, D.C., for applicant Louisiana Power & Light Company.
l Sherwin E. Turk and Bernard M. Bordenick for the Nuclear Regulatory Commission staff.
4 DECISION The last matter pending before us in this operating license proceeding is Joint Intervenors' fifth motion to reopen the recdrd.8 Filed on Novem-
. i ber 8,1984, this 62-page motion, accompanied by 62 exhibits, seeks a hearing on three broad, new contentions.2 Contention A alleges a sys-tematic breakdown in the construction quality assurance (QA) program of applicant Louisiana Power & Light Company (LP&L). Joint Interve-nors argue that, as a consequence of this breakdown, LP&L cannot I
A number of reported decisions issued over the last two years reflect the history of this proceeding.
See ALAB-732.17 NRC 1076 (1983); ALAB-753,18 NRC 1321 (1983); ALAB 786. 20 NRC 1087 (1984); ALAB 801. 21 NRC 479 (1985). Just this past Apnl. we demed another maison to reopen. con-7 cermns the adequacy of the concrete basemat of the facihty. See ALAB-803. 21 NRC $75 (1985). The 3
Commission has dechned review of each of these decisions. Scr Notices from the secretary (september 14.1983; November 20.1984; May 9.1985; May 17,1985); CLi 85-3. 21 NRC 471. 473 n.1 (1985).
t I
2 in ALAB-792. 20 NRC 1585 (1984). clar(md ALAB-797. 21 NRC 6 (1985), we explained. in re-r sponse to arguments made by Louisiana Power & Light Company and the NRC staff, why we hase juris-diction to consider the entirety of the instant motion to reopen. The Commission has also decimed
' i review of dese decisions. See Notice from the secretary (March 22.1985).
12 i
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show that it can operate the plant safely. Contention B states that LP&L does not have the character and competence to operate Waterford in ac-cordance with the Commission's safety requirements. Contention C claims that the NRC staff's inspection and investigation efforts at Water-ford are not adequate to ensure that potentially safety-significant defi-ciencies have been corrected and the plant can operate safely.
LP&L and the staff filed lengthy replies in opposition to Joint Interve-nors' motion. Because of significant deficiencies in both the form and substance of the stafrs reply, however, we found it necessary to strike all but a small portion ofit from the record. ALAB-801, supra note 1, I
21 NRC at 482-84. At the same time, we explained why staff input on b
certain matters with a potential impact on plant safety is essential to our
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disposition of Joint Intervenors' motion. Id. at 482, 485-86. We there-fore requested the staff to provide additional, clarifying information and offered both LP&L and joint Intervenors the opportunity to file further comments as well. /d. at 486-87. All parties have responded and, except for possibly relevant matters under investigation by the NRC's Office of Investigations (01) (see pp. 45-47, infra), the record is now complete.
For the reasons set forth below, we deny Joint Intervenors' November 8
-motion to reopen the record in all respects save one: insofar as the motion raises issues that may relate to matters under investigation by OI, we are unable to rule and therefore leave that part of the motion for the Commission's resolution.2 i
f I.
With the relatively recent plethora of motions to reopen, in both this proceeding and others, we have had frequent occasion to' discuss the criteria that a movant must satisfy. The motion must be timely and address a significant safety or environmentalissue. It must also show that a different result might have been reached had the newly proffered mate-real been considered trutsally.
3 In CL1-85-3,21 NRC 471. the Commission authorized the issuance of a full-power hcense to LP&L.
to operate Waterford The Commission explicitly stated that its deusion mas without prejudice to our considerauon of this monon to reopen (as well as another then-pendmg motion concernmg the base.
mot). /J. at 472. See also 10 Cf.R. { 2.764(g). Accordmgly, we have given no weight to the Commis-saon's pnor hcenw authonzauoc m decidmg to deny Jomt intervenors' monen.
Joint Intervenors subsequently pet tioned for Judicial review and a stay of the Commission's decision.
oysters 4cl Allman r. MC. No. 85-1182 (D C. Car. filed March 25. 1985). In an order issued Apnl 3 1905, the court denied the monon for stay.
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i ALAB-786, supra note 1,20 NRC at 1089. "[ Blare allegations or simple submission of new contentions" is not enough. Paci/7c Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5,13 NRC 361,363 (1981).
At a mmimum,. the new material an support of a motion to reopen must be set forth with a degree of particularity m excess of the basis and speciGcity requirements contained in 10 C.F.R. 2.714(b) for admissible contentions.. lilt must be tanta.
mount to evidence.. landi possess the attributes set forth m to C.F.R. 2.743(c) defining admissible evidence for adjudicatory proceedings. Speci6cally, the new est.
dence supportmg the motion must be " relevant, material, and rettable."
Paci/lc Gas and E/cctric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-775,19 NRC 1361,1366-67, af]'d sub nom. San' Luis Obispo Mothersfor Peace v. NRC, 751 F.2d 1287 (D.C. Cir.1984), racat-ed in part and reh'g en banc granted on other grounds. 760 F.2d i320 (1985). See also id. at 1367 n.18.
.[
A motion to reopen that raises previously uncontested issues - such as Joint intervenors' motion here - must also satisfy the Commission's j
standards for admitting late-filed contentions. Paci/lc Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI 82-39, 16 NRC 1712,1714-15 (1982).* The burden of satisfying all these re-quirements is heavy indeed. See Kansas Gas and Electric Co. (Wolf 6
4 Creek Generating Station, Unit No.1), ALAB-462, 7 NRC 320, 338 1
(1978). See also Metropolitan Edison Co. (Three Mile Island Nuclear Sta-J tion, Unit No.1), CLI-85-7,21 NRC 1104,1106 (1985).
'i Because Joint Intervenors' motion raises quality assurance and management character and competence issues, it must also be consid-ered in light of the guidance on those special issues provided in several eccent decisions. For example, in Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343,346 (1983), we pointed out that Idn any project even remotely approaching in magnitude and complextty the erec-tion of a nuclear power plant, there inevitably will be some construction defects tied
~
to quality assurance lapses. It would therefore be totally unreasonable to hinge the grant of an NRC operatmg license upon a demonstration of error-free construction.
4 Those Ave standards. embodied m 10 C.F R. { 2.714(a)(!), are:
fi) Good cause. if any, for failure to nie on ume.
- 3 (u) The avadabihty of other means whereby the peunoner's mterest odl be protected.
uj (ni) The entent to which the peutronc ** carucisistion may reasonably be espected to assist in i
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developing a sound record.
(iv) The catent to which the pentioner's interew edl be reprewnted by exisung parties.
(v) The entent to shich the.petitioncr's participauon will broaden the issues or delay the proceedmg.
4.'}
]
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Nor is such a result mandated by either the Atomic Energy Act of 1954, as amend.
ed, or the Commission's implensentmg regulations. What they require is simply a t
finding of reasonable assurance that, as built, the facibty can and will be operated without endangering the pubhc health and safety 42 U.S.C. (( 2133(d). 2232(a); 10 C.F.R. ( 50.57(a)(3)(a). Thus, m examinmg claims of quahiy assurance deficiencies, one must look to the amphcation of those deficiencies m terms of safe plant opera-tion. [ Footnote omitted.)
To determine if the requisite reasonable assurance exists, two questions j
must be addressed: (1) whether all ascertained construction errors have been cured, and (2) even if so, whether there has nonetheless j
been so pervasive a breakdown in the QA procedures as to raise legiti-i mate doubt about the overall safety of the facility. Ibid. Although these l
considerations were initially enunciated in the context of an appeal from i
a licensing board decision rendered after a hearing on QA, they are just l
as pertittent to the disposition of a motion to reopen on QA. See Union Electric Co. (Callaway Plant,' Unit 1), ALAB-750,18 NRC 1205,1209 11 (1983); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756,18 NRC 1340,1344-45 (1983), g/fd sub nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir.1984), vacated in part and reh'g en banc granted on other grounds,760 F.2d 1320 (1985); Diablo Canyon, ALAB-775,19 NRC at
-1367.
We also had recent occasion to address the relationship between quali-i ty assurance deficiencies and the overall competence and character of an applicant's management.5 in Houston Lighting & Power Co. (South Texas Project, Units I and 2), ALAB-799,21 NRC 360,371-74 (1985), we ex-pressly approved consideration of remedial measures directed to con-struction and related QA deficiencies as part of the appraisal of an appli-cant's character and competence. Further, the untimely listing of "his-torical examples" of alleged construction QA deficiencies has been found insufficient to warrant reopening of the record on the' management -
character and competence issue. Diablo Canyon, ALAB-775,19 NRC at 1369-70.
Keeping the requirements for motions to reopen and our own recent precedents on QA and management character and competence in mind, we now turn to Joint Intervenors' three proposed contentions and the numerous individual allegations offered as substantiation for each.
' 5More than a decade ago, however, we recognized the importance of"managertal attitude" to an apph.
cint's QA program - i.e. the willmgness or company ofTicials to implement the program to the fullest.
Consumers Poner Co. (Midland Plant, Units I and 2), ALAB-106,6 AEC 182,184 (1973).
15
f II.
In ALAB-801, we noted "our preliminary view -. that much of Joint Intervenors' motion to reopen falls of its own weight." 21 NRC at 481.
Our further review of the matter con 0rms this. Although Joint Interve-I nors have attempted to support most of their individual charges with documentation, these exhibits are frequently lacking in substance or are deficient in some other respect. Many charges concern events that oc-curred years ago, and no effort has been made to show good cause why they were not raised earlier or to establish that the alleged problem was left uncorrected and continues today. Such charges could be rejected on the basis of untimeliness alone. Nonetheless, because of the overall seri-ousness of Joint Intervenors' allegations, our principal focus as to most of the individual charges, as well as the three broad proposed conten-tions, has been on their safety significance - i.e., the second of the traditional reopening criteria.
A.
Quality Assurance
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Joint Intervenors' first proposed contention states:
LP&L has failed to estabhsh and implement an adequate quality assurance program m accordance with-10 CFR Part 50, Appendix B throughout the hfe of construction of Waterford, which led to a terious, systematic breakdown of quahty assurance.
i' LP&L cannot now provide the required assurance that Waterford 3 has been con-i structed m accordance with all NRC requirements or that Waterford's construction is venfied to be of adequate quahty to protect the public health and safety. There-fore, the Commission cannot make the finding required by 10 CFR 50.57(al neces-sary for issuance of an operaung heense for Waterford 3.
j Joint Intervenors' Motion to Reopen (November 8,1984) [hereafter,
" Joint Intervenors' Motion"] at 4. Joint Intervenors advance 12 groups of charges in support of this contention, purportedly illustrating how LP&L's QA program, as implemented, has failed to satisfy all but two of the Commission's 18 quality assurance criteria in 10 C.F.R. Part 50, Ap-j pendix B. There are a total of 73 individual charges specifically linked to
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q this contention, but essentially no argument is presented, presumably in the belief that the examples presented are self-explanatory.6 Each charge i
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s 6 We contmue here the prsctice or refemns to the specific allegations m Joent Intervenors' mouon to reopen as
- charges
- and idenury them by the same letter and number designauons used by Jomt Inter.
'i venors. Src Al AB-801,21 NRC at 485 n.l$.
Charge A(ll(g) is addressed in*our discussion or charge B(l) at pp. 45-47, m/ra. masmuch as both concern matters pnsably related to of investigauons. on the other hand, parts 11 D and ll.E or Jomt in-tervenors' monon contain argument that concerns construchon QA at Waterford. llence, we include these latter parts or t>1 monon here, in our discussion or contenuon A, relaung to quahty assurarwe.
16
. 1 i
i e
k b
9 contains references to one or more of the exhibits Gled with the motion to reopen. These exhibits consist primarily of documents or portions of documents generated.by LP&l or the staff in connection with the con-struction and regulatory ovmight of Waterford.' Also included are three affida vits by persons em;doyed at the plant during construction.8 Or the surface, this marshaling and organization of materials in sup-port af reopening on the quality assurance contention seem to satisfy the for.nat standards we have suggested for such filings. See Diablo Canyon, ALAB-775,19 NRC at 1368 n.22. But many of the individual charges have little or nothing to do with the Appendix B criteria with which they are matched in the 12 broader groupings of allegations. Other charges are related to one another or are duplicative. in order to facilitate our task in addressing all of Joint Intervenors' claims, we have considered each charge without regard to the particular Appendix B criterion or
{
criteria with which it is linked. (In other words, Joint Intervenors' failure I
to connect a charge with the correct criterion is not fatal to their case.)
We have also grouped for discussion those charges that are obviously related or raise the identical issue.
With respect to the substance of Joint Intervenors' QA charges, we have found that they fall into three categories: (1) those that portend a serious breakdown in LP&L's construction QA program; (2) those that could be indicative of QA failures, but upon analysis appear to be with-j out merit or are isolated events of no generic or safety significance; and i
(3) those that, for a variety of reasons, are unsupported on their face. In
{_
the following sections, we discuss each category in turn and conclude that the record need not be reopened to explore LP&L's quality assur-l ance program. As explained below, the evidence before us does not indi-cate either the existence of significant uncorrected construction errors, 7 rhis type of matenal as acceptable evidence m support or a monon to reopen. Dwblo Canyon.
CLI 815,13 NRC at 363.
8 Because the three affiants wish to rema 9 anonymous, the copies of their afrgiavits sersed on the par.
ues have all idenu(ymg mformation expunged The floard's three topics of each, however, are unen-purgated and have been kept under seal Jomt intervenors also riled, simultaneously with their monon to reopen. a Mouon for a Proiccuve Order. under which complete copies of the affidavits would be mode asailable to representauves of the parties on a restricted basis.
Although the staff contends that Jomt intervenors have not estabhshed a sufficient basis for a protec-uve order, n does not object to the entry or such an order. NRC stafTs Response (December 21,1984)
I n.2. Although a protecuse order would have permitted disclosure or more detailed informauon at about the background of the allegers, it would not have sigruricantly enhanced the substance of the charges themselves. As a consequence. LP&L has responded quite rully to mou of the charges m the anonymous afTidavits, and n opposes Jomt Imervenors' request. Applicant's Response to Motion for Protective Order (Nosember 30,1984s.
We commend Jomt Intervenors for their handimg of this matter en accordance with Doblo Canon.
ALAB.775,19 NRC at 1367 n.18. In view of our decision denying almost the enurety of their motion to reopen, however, we need not decade whether the entry of a rrotective order would have been warranted here. Joint Intersenors' monon for a protecuse order is therefore denied as moot.
17
i I
or a breakdown of the overall QA program suf6cient to raise a legitimate doubt as to the capability of Waterford to be operated safely. See p.15, supra.
1.
The NRC relies upon an applicant's quality assurance program, and its implementation, to ensure that a nuclear power plant and its
}j component parts are designed to acceptable criteria and standards, and y
that the plant and its components are constructed or fabricated in accord-ance with their design. See 35 Fed. Reg. 10,498 (1970); 10 C.F.R. Part i
50, Appendix B. As a result of certain events and their subsequent in-i vestigation by the NRC staff, denciencies were found in several funda-mental areas of the LP&L quality assurance program at Waterford -
hence raising a potentially signi6 cant safety problem. Relying largely on
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the staff documents that set forth these denciencies, Joint Intervenors
,1 present a series of charges that depict a serious breakdown in the LP&L program. Speci6cally, these are: (1) inadequate QA stafTing; (2)
LP&L's abdication of responsibility for QA to contractors; (3) inade-jl quate quali6 cation of quality control (QC)' and QA inspectors; (4) fail-ure to identify trends indicative of generic quality problems; (5) failure to perform efTective audits of QA performance; and (6) failure to j
manage and "to disposition" properly Nonconformance Reports (NCRs) and other types of deficiency reports.'8 l
Because these charges derive their principal support from NRC a.
I staff documents, it is appropriate to review brie 6y the circumstance.s from which those documents originated. In the spring of 1982, LP&L was preparing to accept the first turnovers of plant systems from its architect-engineer and construction manager, Ebasco Services, Inc. The 4
LP&L construction ~QA organization found serious QA deficiencies in the four systems in question and in the accompanying QA records.
LP&L reported this "signincant construction denciency" to the NRC.
, j, Following an inspection, the Commission issued a Notice of Violation and imposed a $20,000 civil penalty on LP&L, citing inadequate control of activities affecting quality - a violation of 10 C.F.R. Part 50, Appen-dix B, Criterion II. In particular, the Commission found a breakdown in the quality assurance chain involving LP&L, Ebasco, and the subcontrac-tor whose work and quality control was in question, Mercury Company l
'"Quahty control'* is included withm quahty assurance and concerns "those quahty assurance achons related to the physical charactensucs or a matenal. cructure, component. or system which provide a l
means to control (theirl qual.ty.. to predetermined requirements." 10 C.F.R. Part 50. Appendis B, in-o troduction.
10 As is evident rrom the follow ng discussion, some of these derictencies are necessanly interrelated.
For example, the fact that LP&L's own construction QA stafr was not adequate was partly responsable ror all of the other problems cited here.
r.
18
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of Norwood, Inc. But the Commission also took note of the corrective action (including training for Mercury craft and QA personnel) already initiated by LP&L. JI Exh. 6, Inspection Report No. 50-382/8214 (De-cember 6,1982) at 8-12,13;" NRC Staff's Response (April 22, 1985)
[hereafter, " Staff Response to ALAB-801"}, Constable Affidavit, Exh.
2 (Notice of Violation). LP&L's problems with Mercury continued, how-ever, and in late 1983 the contract with hiercury was terminated, and Ebasco completed the remaining work.of that subcontractor. Staff Re-sponse to ALAB-801, Harrison Affidavit at 7.
Early in 1984, as part of a series of plant inspections undertaken by the NRC's Office ofInspection and Enforcement (I&E), a Construction Appraisal Team (CAT) visited the Waterford site. This group found the areas inspected to be generally in accordance with safety requirements, but noted some quality assurance deficiencies - namely, the failure to -
take proper corrective action on problems previously identified by the NRC's Regional Office. See JI Exh. 23, CAT Inspection Report No.
50-382/84-07 (May 14,1984). At about the same time that the CAT was conducting its routine inspection of the plant, the NRC received ap-proximately 350 allegations of construction and quality assurance defi-ciencies. Thc staff developed a Management Program to address the teci.nical issues raised by those allegations. It also organized a Task 7
Force of 40 persons who spent six weeks onsite, beginning in April 1984. Board Notification No.84-170 (October 12, 1984), Waterford Safety Evaluation Report, Supplement No. 7 (September 1984) [hereaf- -
ter, "SSER-7"), Appendix J at 2-3.12 By May this group had resolved most of the allegations, but there re.
mained 23 issues with " potential safety implications" requiring further input from LP&L and review by the staff. These 23 issues are set forth in a June 13, 1984, letter from D. G. Eisenhut (then NRC Director of Licensing) to J. M. Cain, President and Chief Executive Officer of LP&L [hereafter, "Eisenhut Letter"). See JI Exh. 9. Although the defi-ciencies that make up the 23 residual problem areas involve a wide
. range of activities and organizations at Waterford (i.e., LP&L, Ebasco, and various subcontractors),10 of them relate to the work of Mercury, the subcontractor that had been the focus of the 1982 civil penalty H "JI Enh." refers to exhibits submitted with Jomt Intervenors' November 8.1984. motion to reopen.
I "LPAL Enh/' refers to those submnted with Applicant's Answer to Jomt lmervenors' Mouon to Reopen (November 30, 1984) lhereafter. "Apphcant's Answer"j. and *LP&L supp. Enh." denotes I
those riled wnh Appbcant's supplemental Comments ( April 10.1985).
12 The Task Force also meluded members of an NRC Inquiry Team organued m the summer of 1983 to invesugate QA allegations reported m a local New Orleans weekly. ssER 7, Appendia J at 3. See 4 At.
tachment 6, Appendia A at 1.
l 19
4 action. L't &L and the stalT held several meetings during the summer of 3
1984, and by December 1984 LP&L had, in the stalrs view, adequately j
answered the 23 remaming questions. StatT Response to ALAB-801, liarrison Af0 davit at 13-14. The staft's evaluation of the LP&L re-sponses, Supplement No. 9 to the Waterford Safety Evaluation Report
.j lhereafter, "SSER-9"J, was made available in January 1985. See Board NotiGeation No.85-006 (January 14, 1985)."
i Two other staff documents have a bearing on the matters raised by Joint Intervenors' mction. The Waterford Task Force issued inspection Report No. 50-382/84-34 (July 20,1984). See JI Exh. 5. There the staff noted LP&L's past rroblems, but concluded that its QA program is generally adequate except for several items also raised in the Eisenhut
-i Letter and still "open" at that time. In SSER-7, the staff reported its i
findings on the some 350 allegations brought to its attention in early 1984. Most items were resolved in a manner acceptable to the staff and closed out - again, except for those related to matters discussed in the -
Eisenhut, Letter and those that were referred to 01. See, e.g., AL AB-j 801 21 NRC at 485-86.
1 b.
In the following pages we explore the various major problem areas that resulted in the apparent breakdown in LP&L's quality assur-ance program.
1 (1) Sta/ Jing: In A(1)(b), Joint Intervenors charge that LP&L failed
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to maintain adequate QA staffing during the construction of Waterford, despite warnings about this potential problem in an internal audit. See also Joint Intervenors' Response to ALAB-801 (May 6,1985) at 15-17.
I They rely on four exhibits for support: (1) a July 31,1979, draft of a report prepared by Management Analysis Company ("MAC Report")
and internal memoranda discussing the report - JI Exh.1; (2) Water-ford Task Force Inspection Report No. 50-382/84 Ji Exh. 5; (3)
,i Inspection Report No. 50-382/82 11 Exh. 6; and (4) a February 16,1978, internal LP&L memorandum suggesting the addition of anoth-f er QA engineer - JI Exh. 7."
There is no real dispute that LP&L's construction QA staff was not j'
large enough for the task it faced. Further, the MAC Report apprised LP&L of the disadvantages of this situation, but LP&L took no action U In ALAB-801,21 NRC ai 485, we noted the relevance orssER 9 to many orthe asues raned m J..;
proceeding and requested the staffs affidavit attestmg to the valulity or the factual material cofitamed in a
this document. The stafT subsequently provided this and vouched ror ssER.7 as well See statT Re.
sponse to ALAB-801.Crutchfield AfGdavit at 5.
14 Jams intervenors have failed to provide specine page rererences to J! Emi.s. l. 5, and 6. See p. 42, utfra. Nonetheless. we were aNe to locate the secuons or each document periment to charge A(IHbt i
As ror JI Exh. 7. Joint intervenors do not explain what difrerence one more person would hase made to LP&L's rather lean construcuon QA stafr.
20 i
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until the breakdown involving Ebasco and Mercury was clearly identi-fied. Indeed, had there been greater attention to the warnings of 'he t
MAC Report earlier, the breakdown likely would not have occurred and the 1982 civil penalty action would'not have been necessary. See Ji I
Exh. 5 at 11 13 to 11 14 V-4 to V-7; Staff Response to ALAB-801, Harri-I son Affidavit at 46-47, Constable Affidavit at 2-11. See also J1 Exh. 6 at 8, 12.'5 LP&L, however, cannot turn back the clock and enlarg. the QA staff that oversaw construction at the Waterford site. Our focus, then, must I
be on whether any significant construction deficiencies resulted and l
remain as a consequence of LP&L's inadequate stamng,, and whether LP&L has taken steps to prevent understafling in the future. As ex-plained below, we are persuaded by the record here that there are no sig-nificant construction defects at the Waterford facility. Further, LP&L now appears to be more sensitive to the need for an adequate in-house QA staff and ha.; accordingly increased its construction and, more impor-tant, its operational QA stalT. See Staff Response to ALAB-801, Harri-son Affidavit at 47-48. See also pp. 53-54, irtfra. Thus, although inade-quate staffing has been a robt cause of many of LP&L's QA problems, this seems to be a " lesson learned." See LP&L Supp. Exh.1, Attach-ment, Table 2, issue 23c.
(2) Abdication of Respensibility: Joint Intervenors' charge A(1)(h) states that, as is evident from the problems in the first systems turnover packages, LP&L effectively abdicated its QA responsibilities to Ebasco
~
during early design and construction work at the plant. As support for this charge, they rely on Inspection Report No. 50-382/82-14, where the turnover problems are described. See JI Exh. 6 at 8-12.'*
Delegation of QA activities is acceptable under the NRC's regule.tions, so long as an applicant bears the ultimate responsibility for QA perform-l 15 Joint lmervenors place undue weight. homever. on the MAC Report uscif. m connecuon with this
- end other charges it is, of course, noteworthy that LP&L did not heed the recommendauons ofits own consultant. But the M AC Repon, though broad in scope, is limited m specaracs. It is a 30 man-day study, only seven pages in length. Its importance should not be elevated above what is marranted.
Jomt Intervenors also err in suggestmg that LPAL should have disclosed the M AC Report to the NRC under 10 C F.R. ( 50.55(e). See Joint intervenors' Response to ALAB-g01 at 16 n.9. That provi.
eson requires the reportmg of construction and design deficiencies (meludmg a ognificant breakdown m the C A prcgram) that. sf left uncorrected. could affect the safe operation of the plant. But the M AC Report is simply a conection of 15 "observauons and Recommendations" on the broad topic of " Con-struction Monitorms " It does not ident fy any speciisc construction deficiency subject to the reportmg requirements of 10 C F.R. t 50 35(e).
16 Joint intervenors also rely on 11 Exh. 3. Ebasco's Quainy Assurance Manual for Waterford, dated october 15. 1975. The enhibit is lengthy and no particular poruon of n has been called to our attenuon.
See p. 42, or/ra. Further, Joent Intervenors have failed to esplam what purpose the exhibit is to serve or l
what po.cl is made in relymg on it serving up exhibits m this fashion - as Joint Intervenors have Dne i
m numerous mstances m connection with their motion to reopen - contributes nothmg of value to the proceeding.
1 21 i.
i l
I ance and is able to assure itself that its delegate is performing adequately.
10 C.F.R. Part 50, Appendix B, Criterion 1; Commonwcalth Edison Co.
(Byron Nuclear Power Station, Units I and 2), ALAB 793, 20 NRC 1591, 1598 (1984). As a consequence ofits inad,:quate construction QA staff, discussed above, until 1982 LP&L was forced to rely heavily for QA performance on its construction manager, Ebasco, in and of itself, l
this heavy reliance does not present a QA problem. But the Mercury breakdown showed that Ebasco had failed to implement its own QA pro-gram fully;Thus, LP&L could not provide the assurance that its delegate was performing properly. See Staff Response to ALAB-801, Harrison Affidavit at 48-49: 31 Exh. 6 at 8-12. Although this was serious enough to lead to LP&L's 1982 civil penalty for failure to control its QA activi-ties (Criterion II), it does not demonstrate an abdication of QA responsi-l bility by LP&L (Criterion I). See Staff Response to ALAB-801, Consta-ble Affidavit, Exh. 2.
For one thing, it was LPdL's QA stafT that discoscred and reported to the NP,C the deficiencies in the four turnover packages from Ebasco.
Id., Harrison Affidavit at 49; JI Exh. 6 at 10.I' As corrective action, LP&L organized a Task Force to review the safety related work of all contractors in addition to Mercury. These contractors and Ebasco each 4
performed 100 percent walkdowns of all systems prior to turnover, and LP&L performed sampling inspections of all systems during walkdowns.
Deficiencies discovered during the walkdowns were documented and later corrected. Staff Response to ALAB-801, Harrison Affidavit at 34-36. Thus, although it originally relied too heavily on Ebasco, LP&L's QA staff ultimately performed its function ofidentifying and correcting deficiencies in the quality of construction at the facility.' We are therefore unable to find any basis in this record for Joint Intervenors' charge that LP&L " abdicated" its QA responsibilities to Ebasco.'8 (3) QuahAcation ofInspectors-In charge A(1)(c), Joint Intervenors question the qualifications and training of QA and QC personnel em-ployed during construction at Waterford. They rely on the Eisenhut Letter as support for this charge. Although Joint Intervenors have not 87 LP&L's role in brmging this problem to the NRC's attenuon led to the assessment or a penalty one.
j halt the amount that ordinanly would have been levied. stafr Response to ALAB 801. Constable Ar.
fidavit. Enh. 2 at 2.
4 5
18 Although Joint intervenors limit charge A(1)(h) to construction acuvines. we also see no evidence
+
or an abdicauon or QA responsibiliues by LP&L at the opersuonal phase. Indeed. LP&L's management now appears to recognize the need ror acuve anvolvement m QA oversight. See d. Harnson Affidavit at 44-45. LP&L supp. Eah.1. Attachment. "operanonal Phase QA Program Assessment."
l' Joint latervenors also rely on an afndavet or an anonymous rormer construchon worker at Waterrord (see note 8, suprg) and the transcnpt or a public meeung held on August 17.1984 between the NRC stafr and represemauves or LPAL to discuss LP&L's response to the Eisenhut Letter, See JI Eshs. 8, (Contmord) 22 5
l I
l specified the parts of that letter pertinent here, Issues I,10, and 20 con-cern the qualifications of various inspection personnel. See JI Exh. 9,-
Enclosure at I, 7-8,12. In part D(2) of their motion, Joint Intervenors raise a related objection to the manner in which LP&L proposed to (and did) respond to issues I,10, and 20. Joint Intervenors assert that LP&L would rely on contractor certification or background checks, rather than formal QA documentation, to verify the credentials of the QA/QC
+
inspectors employed by LP&L, Ebasco, and their subcontractors. They also claim that LP&L refused to perform 100 percent reinspection of work previously inspected by persen.iel who could not be shown to be l
qualified. According to Joint Intervenors, the stafi's acceptance of the i
verification program proposed by LP&L in resp:,s'.se to the.Eisenhut Letter results in the use of a more lenient standard at Waterford than ap-plied to plants with assertedly similar QA problems, such as Zimmer and Midland. Joint Intervenors' Motion at 37-38. See also Joint Intervenors'
{
Motion for Leave to File Reply (January 25,1985) [hereafter, " Joint in-i tervenors' Reply"] at 15-19.2o The significance of Joir.t Intervenors' arguments is that an inspection I
by an unqualified person may be tantamount to no inspection at all, and thus, the quality of the work inspected is indeterminate. See, e.g., JI Exh. 9 Enclosure at 1. Issues 1,10, and 20 of the Eisenhut Letter set forth certain discrepancies or deficiencies found by the staff in the qual-ifications of some inspection personnel relied on by LP&L during the construction of Waterford..'d. at 1,,12. According to LP&L, the cause j
of these problems was the i.iconsistent and often undocumented applica-tion of the qualification standard that permits substitution for education and experience, ANSI [American National Standards Institute] N45.2.6-1973. LP&L Exh.12 (rev.) at 1-5. As corrective action, the staff re-quired LP&L to "(1) verify the professional credentials of 100% of.the site QA/QC pe% nnel, including supervisors and managers, (2) rein-spect the work performed by inspectors found unqualified, and (3) verify the proper certification of the remaining site QA/QC perponnel to ANSI N45.2.6-1973." JI Exh. 9. Enclosure at 1. See also id. at 8,12.
- 10. Neither. however. Provides any support for charge A(IHc). The afridavit contains allegations con-cernmg the lack of quahrcations of certain personnel (e g.. welders and maimenance workers), and as-sertions about madequacies in QC coverage. But we see nothms in the afTidavn about the quahfications of ms/veren perscanct As for the transcnpt. Once agam Joint Intersenors have failed to refer to the par-ticular portions of this 171-page document that assertedly support charge A(IHc). See p. 42, mfra. This is despite the fact that, pnor to the rihng of Joint Intervenors' motion to reopen, we criticized the stafr for submitting this same document to us without an explanation ofits purpose and relevance to the mat-ters then before us. See AL AB-786. 20 NRC at 1092 n 8 20 ln ALAB-801, 21 NRC at 488, we granted Joma Intervenors permission to file this pleadmg to the entent n contamed comments on issues 1,6, and 22 m the Eisenhut Letter and ssER 9 We also accept-ed the stafTs and LPat 's responses to same 23
LP&L submitted extensive replies to this staff request. See LP&L Exhs. 7,12 (rev.),17 (rev.). The staff likewise undertook a comprehen-sive review of LP&L's program to address the inspector quali0 cation matters raised by the Eisenhut Letter. The staff concluded that LP&L had identified all unqualitid site QA/QC inspection personnel, and that, where necessary, appropriate corrective action was taken. No sig-nificant rework, however, was required. See SSER-9, Appendix J at 7-18, 51-52, 75-76.
Contrary to Joint Intervenors' claims, the eiedentials of 100 percent of the persons who performed safety-related QA/QC inspections onsite were reviewed under LP&L's program, as required by the Eisenhut l
Letter, isockground checks with former employers, schools, etc., were I
made, but for the purpose of verifying further or supplementing site per-sonnel files that were no longer complete because the construction work-force was largely demobilized. Once the personal data were collected from the best available sources, they were measured against the ap-propriate standard and individual inspectors were judged qualified cc un-l qualified. See LP&L Exh.12 (rev.) at 1-1 to 1-4. See also Applicant's Answer to Joint Intervenors' Motion (November 30, 1984), Responses to Specific Allegations [hereafter, "LP&L's Responses to Specific Alle-gations"] at 81.
Although the staffinitially required LP&L to " reinspect the work per-formed by inspectors found unqualified," actual reinspection was deter-mined not to be necessary in all case:. See J1 Exh. 9, Enclosure at 1. See also NRC Staffs Funher kesponse (February 28, 1985), flarrison Af-fidavit at 15-16. Where records revealed that duplicate inspections by qualified inspectors had been performed, there was no need for yet another reinspection. See, e.g., SSER-9, Appendix J at 51; LP&L Exh.
17 (rev.) at 10-4. A sampling approach was used with respect to nine un-qualified inspectors responsible for QA on structural welding of FIVAC (heating, ventilating, and air conditioning) duct supports. The work on all reinspected welds in a sample of 220 was found acceptable providing a sufficient level of confidence to the staff that the remainder of the work covered by these inspectors was adequate. See SSER-9, Appendix J at 17; NRC Staft's Further Response, Harrison Affidavit at 26. See also LP&L Exh.12 (rev.) at 0-2. In other instances, actual testing and non-destructive examination of the hardware or system, aivag with the nature of the work actually performed and the on-the-job training of the individuals who conducted the inspection, were considered by the staff.
See, e.g., SSER-9, Appendix J at 12-13; NRC Staff's Further Response, liarrison Aflidavit at 20-21. See also LP&L Exh.12 (rev.) at 1-2 to I-3.
24 9
I
I On the other hand,100 percent of the "N1" instrument tubing in-stalled by Mercury - the principal source of the QA problems identified in 1982 - was reinspected. Only minor discrepancies, requiring little rework, were found in this instrumentation, which is vital to the safe shutdown of the plant. SSER-9, Appendix J at 13. With respect to the "N2" installations - which are required to maintain pressure boundary integrity but otherwise are not directly safety-related - the staff noted that 100 percent of those installed before July 1982 had already been reinspected. Although some inspectors whose qualifications were in question might have participated in those reinspections, the favorable re-sults of the N1 reinspection program provide additional assurance of the quality of Mercury's N2 installations. Still further, the systems contain-ing this equipment were tested and independently inspected, with accept-able results. /d. at 13-14; NRC Staffs Further Response, Harrison Af-fidavit at 21-22.
As a result of the work discussed above, we are not persuaded by Joint Intervenors' criticism of LP&L's verification program and the staffs acceptance of it, as described in SSER-9. See Joint Intervenors' Reply at 15-19.2 They have taken statements out of context or given them a strained reading in order to support their thesis that adequate reinspections have not been performed.22 The effort undertaken by LP&L to verify the qualifications of the QA/QC inspectors at Waterford and, where that was not possible, to verify the quahty of their work, was extremely thorough. Its submission to the NRC - LP&L Exhs. 7,12 (rev.), and 17 (rev.) - essentially includes an evaluation of the work of every inspector (or group of inspectors) whose qualifications could not be documented. The staff's own assessment of this material is likewise extensive. We see no basis for Joint Intervenors' claim that the staff has applied more lenient standards than applied at othbr plants such as Zimmer and Midland. Indeed, the comparison is inapt because, unlike the situation at Waterford, the QA deficiencies identified at those facili-ties extended well beyond primarily documentation problems to actual hardware deficiencies, requiring significant rework. NRC Staff's Further Response, Harrison Affidavit at 13-14, 26. See, e.g., Cincinnati Gas &
Electric Co. (William H. Zimmer Nuclear Power Station), CLl-82-33,16 NRC 1489 (1982). Accordingly, on the basis of the record here, we 21 The staffs response to this critacism is exceptionally detailed and conomeing See NRC staffs f'ur.
ther Response. Harrison Afridasit at 15-27.
22 Joint lmersenors also complain that ssER.9 does not indicate the percem or inspectors in each category that mere round to be unquahfied. %c agree with the stafr that, regardless of whether at is one or 100 percem. the importam thing as that all these individuals have been edenufied and appropnate cor-rective acuon has been taken. /d at 17.
25
l l
share the staff's conclusion that the matter of inspector qualiGeations has been satisfactorily resolved. This is not a signiGeant matter warrant-ing reopening of the record.
4 (4) Trends: In several charges - A(1)(p), A(10)(c) (in part), and A(10)(e) - Joint Intervenors assert that LP&L failed to trend QA prob-l lems so as to identify pervasive or generic deGeiencies in the quality assurance program. They cite, without specific page references, to CAT Inspection Report No. 50-382/84-07 and the Eisenhut Letter as support for this claim. See JI Exhs. 23,9.23 Since 1974, LP&L has had in effect a three-phase program. under the responsibility of Ebasco, to analyze Nonconforming Condition (or Non-conformance) Reports (NCRs) for repetitive and widespread QA prob-lems. LP&L's Responses to SpeciGc Allegations at 18-20. The CAT In-spection Report, on which Joint Intervenors rely, found this program to be generally adequate. See JI Exh. 23 at Vill-3, Vill-4.24 Issue 23 of the.
Eisenhut Letter, however, notes that LP&L's failure to determine the root cause of the Ebasco-Mercury breakdown allowed QA problems to l
continue. JI Exh. 9, Enclosure at 14. Compare SSER-7, Appendix J at 85, with id.~at 98,100. See also StafT Response to ALAB-801, flarrison Af0 davit at 5-6.
Despite these problems in LP&L's trending program, the staff now "is satisfied that deficiencies in the performance of trending during con-1 struction did not have an impact on either the quality of construction or the safety of the plant." Id. at 5 J. The staff's satisfaction is based on the fact that nonconforming conditions were identified by the QA program i
and ultimately resolved properly. / bid. See pp. 29-31, infra. Further-more, LP&L considers this a major lesson learned. LP&L Sh. 5 at 23-9, 23-1 + Consequently, it has improved and incorport 4 % _ q procedu.a in its operational QA program. It is notewortt v rW, mder these procedures, LP&L's senior management - i.e... its....o Vice President for Nuclear Operations. - oversees this program through 23 omt Intervenors also rely on JI Enh.12. another affedavit from an anonymous former worker at J
Waterford, a QA engmeer. Nothing m this affidavit. however. concerns LP&L's alleged failure to trend QA problems.
24 The only references to trewims of QA problems that we could locate m the CAT l.ispecuon Report are in secuon vill. tThe prmetal concern or this report is LP&L's failure to take correcuve acuon in i
rive areas previously idenufied sa problems by the NRC. we discuss this matter m connecuon with Jomt intervenors' charge B(4) at'pp. 5153. utfra.) section vilfor the report briefly addresses a three.
month lapse in the procedures for trendmg NCRs. The CAT concludes that this is not a major concern because the NCRs m question eventually did become part of the data base for the Ebasco quarterly s
i trend analysis. JI Esh. 23 at vill.J. The report also notes that Descrepancy Notices (DNs) and the like t
were not mcluded at all in the data base. Although no omitted item was found to have safety sigmre-l cance. the CAT observes that "some repenuve problems may nos be analyzed to prectude recurrence."
- 14. at V1114 I
i e'
26 e
I 1
l
\\
I m
m w
y r--
~
t e e e
s
.<-v vv e
~a.
~~
- review of quarterly trending reports. LP&L Supp. Exh.1, Attachment,
" Operational Phase QA Program Assessment" at 16-18. The staff has reviewed LP&L's operational QA trending program and " believes that
'his vrogram affords the necessary controls, during the operations phw for the proper trending of nonconformance, audit and other dua. Staff Response to ALAB-801, liarrison Amdavit at 51. In these circumstances, there is no basis for reopening.
(5) Audits: Joint Intervenors contend that the audits of construc-tion work at Waterford were inelTective for several reasons: they were not documented properly, not conducted in accordance with specified procedures, and, in some cases, not done at all. See charges A(12)(a),
A(12)(b), and A(12)(c). Joint Intervenors find support for these charges in Inspecticn Report No. 50-382/82-14, which was the basis of
[
the 1982 civil penalty assessed against LP&L for the Ebasco-Mercury QA breakdown. See Ji Exh. 6 at 7-10.
There is little doubt that the implementation of LP&L's audit program was lacking and led to the 1982 QA breakdown. Mercury's audits were not comprehensive and did not pick up failures in QA and construction procedures. Ebasco did not recognize trends in the Mercury noncon-formances and inadequacies in the Mercury audits. LP&L, because ofits staffing problems (see pp. 20-21, supra), only belatedly came to realize its contractors' deficiencies. Further, even after 1982, problems persisted t
and some corrective actions were insufficient. Staff Response to ALAB-801, }{arrison Affidavit at 4-7,17-18. Although Joint Intervenors do not rely on them, the Eisenhut Letter (Issue 23) notes these auditing prob-lems, and SSER-7 (allegation A-48) documents the details of the audit-ing program failures. JI Exh. 9, Enclosure at 14; SSER-7, Appendix J at 96-10" Gis u ascse serious deficiencies, two pertinent questions arise. Are the auditing failures responsible for actual hardware or workmanship deficiencies that may remain unidentified and uncorrected? What assur-ance is there that these auditing failures will not recur? In addressing LP&L's submission on issue 23 of the Eisenhut Letter, the staff concluded generally that the " shortcomings" that existed in LP&L's QA program have been identified and adequately remedied. SSER-9, Appen-dix J at 85. In~ response to our request.in ALAB-801,21 NRC at 485-87, for further clarification on this conclusion, the staff has elaborated.
Focusing on the work of Mercury, the staff states that virtually all of the auditing deficiencies identified in SSER-7 were substantiated. Staff Response to ALAB-801, liarrison Affidavit at 17. Nonetheless it con-cludes "that these issues do not have safety significance." /d. at 18. The principal reason for the stafTs conclusion is the extensive reinspection 27
of Alercury's work, which resulted in only " discretionary rework" to cor-rect " minor problems." /d. at 18-19. See p. 25, supra. The staff also Ands additional assurance of the quality of hiercury's work in, among other things, still more inspections and QA documentation reviews per-formed by qualified Ebasco personnel, the several NRC inspection teams, and the independent Authorized Nuclear Inspector (ANI);25 plant system walkdowns; and satisfactory completion of various tests of hiercury systems. Staff Response to ALAB-801, llarrison Affidavit at 20.
With respect to the work of subcontractors other than Alercury, the stalT " determined that these audit programs were generally etTective, unlike the audit programs for hiercury installations." /d. at 21. They identified problems, which led, in turn, to timely corrective action.
Ebasco's audits of these contractors were found to be " generally ade-quate," and LP&L's audits - while not ir full compliance with the schedule and commitments set by LP&L itself-provided further assur-ance of the quality of the work of these subcontractors. The staff's over-all conclusion, reflected in several specified staff inspection reports, is i
that the audits of these QA programs were effective. /d. at 21-23. As for the operations phase at Waterford, t'he staff is satisfied that "a compre-hensive QA audit program is in place and that a realisi; audit schedule 1
is being implemented." /d. at 52. See LP&L Supp. Exh. I, Attachment,
" Operational Phase QA Program Assessment" at 3-7,24-25.
Audits are an important element of an applicant's overall QA program and are required by 10 C.F.R. Part 50, Appendix B, Criterion XVill.
Nonetheless, as the staff has explained, through the systematic sampling of various work and the QA documentation for it, audits provide but a third level of assurance. The principal levels of assurance are provided by, first, quality craftsmanship and, second, quality inspections. Staff Re-sponse to ALAB-801, liarrison Affidavit at 16-17. The record here shows that auditing deficiencies existed only with respect to the work performed by hiercury. But as to that work, t% first and second levels of assurance were, in fact, provided. This is demonstrated by the absence of significant safety deficiencies in the improperly audited hiercury work, as revealed by the. major reinspection of that work that was under-taken by qualified personnel. Further, there is no basis for assuming that tiie implementation of future audits under LP&L's auspices will re-flect the same failures associated with the audits of hiercury's work. Ac-i 25 The AM as the agent or a state. municipahty, or msurance company authorized to wr te boiler and pressure vessel msurance, and is quahried to conduct speciried inspecuons. See AsME ( Amencan Socie-ty or Mechanical Erismeersl Boiler and Pressure vessel Code. section ill. Arucle NCA-5000 truly 198D.
l
[
+
28 I
cordingly, we conclude that ' Joint Intervenors' charges in connection with LP&L's audit program do not warrant reopening of the record.
(6) NCRs: Nonconformance Reports (NCRs) and other documents such as Discrepancy Reports (DRs), Engineering Deficiency Notices (EDNs), Field Change Requests (FCRs), and Design Change Notices (DCNs) are generated in a QA program to identify and to record discrep-
[
ant or changed conditions. In general, these documents result from the' i
work of QC inspectors. Proper dispositioning of these reports is a vital part of a QA program,' because it is through this process that the suspect condition is eventually corrected or, in some cases, judged by a qualified person to be acceptable in spite of the discrepancy. See 10 C.F.R. Part 50, Appendix B, Criteria XV, XVI. For example, a weld that is under-sizrd according 1o a governing standard may nevertheless be determined by analysis to be adequate for the particular service intended, and hence properly dispositioned "use-as-is."
l The organizational level at which a deficiency may be dispositioned is
)
governed by QA program procedures. Under certain circumstances, a l
condition first noted as a discrepancy (to be resolved perhaps by a sub-contractor) must be upgraded to an NCR (resolvable only by the con-struction manager). In general, upgrading to'a higher level means that more documentation and analysis are required for disposition in addi-l tion, certain NCRs must be evaluated for reportability to the Commis-i sion under 10 C.F.R. ) 50.55(e) and 10 C.F.R. Part 21. Failing to up-grade when required is itself a program nonconformance and, more im-
- portant, involves the risk that a discrepant condition will not be properly evaluated and corrected.
Joint Intervenors raise several charges related to LP&L's treatment of NCRs and the like, relying on the Eisenhut Letter, presumably Issues 4, 6, and 13. See JI Exh. 9, Enclosure at 2 - 4, 5 - 6, 9.26 In charges A(10)(a), A(10)(b), A(10)(c) (in part), and A(10)(0, they claim that l
LP&L failed to identify, through NCRs, serious nonconforming condi-tions; to upgrade lower-tier documents to NCR status; and to disposition NCRs properly. Joint Intervenors also assert, in charges D(3) and D(4),
that LP&L's response to the Eisenhut Letter did not constitute an ade-quate review of the pertinent documentation or meet even the NRC's 26 Joint intervenors also cite two other exhibits. One, Ji Enh. 40. is a one-page illegible. handantien memorandum from an unidenufied source..The only words discernible are
- loss of coal dust." obvious.
ly, me can give this
- document" no weight. The other exhibit. J1 Enh 43. es a 1977 NCR for certain piping matenal. Joint Intervenors offer no explanateon or the purpose ihas single exh. bet is to serve.
Thus, it ino is accorded no weight. Se also LPAL's Responses to specir.c Allegations at 53.
29
minimal requirements. Joint Intervenors' Motion at 38-39; Joint Inter-venors' Reply at 19-21.27 SSER-9 thoroughly addresses the NCR-related concerns raised by Joint Intervenors' charges and first described in the Eisenhut Letter. In issue 4, the stafT documented a number of examples of lower-tier docu-ments that were not upgraded to NCRs - as they should have been. See JI Exh. 9, Enclosure at 3-4. The staffinitially requested LP&L tc ruiew
,l all of the pertinent lower-tier documents to assure that proper corrective l
action (including reporting to the NRC) was taken. Id. at 4. But LP&L l
proposed a modified sampling approach, which the staff found to be
" conservative" and acceptable. SSER-9, Appendix J at 25-26.28 Further, tile staff considered LP&L's review team to be experienced and compe-I tent. Although LP&L acknowledged that there had been procedural and
}
misinterpretation problems in the handling of hardware discrepancies, the stafT found good engineering practice, appropriate corrective action I
where necessary, and no actual hardware deficiencies that raise a safety l
concern. /d. at 26. See generally LP&L Exh. 9.
f Issue 6 of the Eisenhut letter involves mainly the dispositioning of Ebasco NCRs. The staff's random review of these documents revealed that about one-third contained " questionable dispositions." JI Exh. 9, Enclosure at 5. The staff again provided examples of problem docu-ments, including 23 Mercury NCRs. Consequently, the staff directed LP&L to propose a program to assure that all NCRs and DRs had been properly upgraded and dispositioned, and to correct any problems discov-ered. Id. at 5-6. Although the staff subsequently agreed to accept less j
than a 100 percent detailed review of these reports, after problems were encountered in the review process, LP&L then examined all NCRs (including over 7000 generated by Ebasco). Depending on the type of problem identified, some NCRs received a further in depth review.
NRC Staffs Further Response, Harrison Aflidavit at 28 29. A sampling approach was used for the lower-tier DRs, however. But of the 2,029 DRs reviewed, only 33 problems were identified and they were all ad-ministrative in nature. Id. at 29-30.
The staff found that program deficiencies did exist: the wh' ole NCR system was complicated, the guidelines for implementation were not specific enough, and some documentation was lacking or indeterminate.
6-
{
27 Joint Intervenors also casually allege in this section of their motion to reopen that LP&L has made ef.
forts to undermme an unspectried of investigation. Joint intervenors' Motion at 39. They neither es.
plain nor support this accusation.18 therefore warrants no discussion.
2s LP& L's review mcluded all or the lower.tser documents specifically edentiried by the stafrand apprott.
mately 900 or 32.000 other documents. This sample mcluded only safety-related components. but other-wise was random. LP&L Esh. 9 at 4-3. 4-4 i
I 30
u-e.
SSER-9, Appendix J at 32-35." Notwithstanding these deficiencies, the staff concluded that "the problems with NCRs and DRs have been l
identitled and properly resolved." Id. at 35. The key to this finding was the absence of hardware problems and safety-significant issues. Ibid. See generally LP&L Exh. 8.
Thus, although substantial problems in the implementation of i
LP&L's NCR system existed, the review of the documentation generat-ed by that system has been extensive. Where a sampling approach, rather than a complete review, was undertaken, it was justified, given the total number of documents potentially involved and the absence of any serious safety problems in even the documents originally identified by the staff as questionable. Further, the programmatic deficiencies that l
were discovered are addressed by LP&L's newly revised operational QA j
program. See LP&L Supp. Exh.1, Attachment, " Operational Phase QA l
1 Program Assessment" at 10-15. In the circumstances, we have no cause i
to reopen the record for further pursuit of this matter.
2.
In the second category of charges in contention A are those that ostensibly might indicate some quality assurance failures. However, j
after closer analysis of these charges themselves, as well as the rejoinders l
of LP&L and the staff (including SSER-9), we conclude that they are meritless. Further, even if these charges were to have substance, they l
are but isolated incidents of no generic or safety significance. As in the case of the more serious charges discussed in part II.A.1, we have grouped related or identical charges and discuss each grouping below.
j a.
Charges A(1)(d) (in part), A(7)(e), and A(7)(f) assert that spe-cial processes like welding were not performed in accordance with proper procedures. For example, Joint Intervenors claim that half of the welding on some two million feet of stainless steel tubing for the con-tainment instrument lines was not " purged" of atmospheric contamina-tion. As a consequence, " sugaring" (oxidation) formed on weld sur-faces, leading to possible future cracking of the weld itself. Joint Interve<
nors also allege that welds were not cooled 'sufficiently between
" passes" because of management pressure to speed up. The principal support for these charges of welding deficiencies is the affidavit of a former worker at the site. See J1 Exh. 8 at 5-6.*
~
" issue 13 of the Enenhui Letter specifically addressed the matter of missms NCRs. J1 Enh. 9. Enclo-sure et 9. But the NCRs identiried as missms had. m fact. been entered mio the NCR sysiem and were odequately disposnioned. The imtial mabihty to locate them was attributed to the cumbersome NCR procedures. ssER.9. Appendia J at 59-60.
M Joint Intersenors aho rely on the M AC Report.11 Enh 1. But this document makes only the briefest reference to a general need for LP&L to assure that any problems with welding be resobed 31 e
._____m_.._______-..__m___.__
_m
__ a
1
)
We note at the outset that the reliability of the alleger's claims is somewhat suspect. The informer's assertion that there are about two mil-tion feet of stainless steel tubing for the containment instrumentation is greatly overstated. The total amount of stainless steel tubing is actually about 121,000 feet, of which only 12,000 feet is safety-related tubing located in the containment building. Second, purging of the tubing is not required before welding in this instance. Sfercury initially purged the tubing but discontinued this practice because it was unnecessary for the' socket welds in question: the geometry of this type of weld does not expose the molten metal to the air inside the tube during the welding i
process. Further, sugaring was minimized by the use of special portable welding equipment with a very stable electrical current output. In the relatively few instances where some sugaring was detected, the welds were cut out and replaced. There is also no specific requirement for a certain amount of time to elapse between each welding pass. The only re.
quirement is that the temperature not exceed 350*F before the second i
pass. This can be achieved within a few seconds. LP&L's Responses to Specific Allegations at 42a-42b (renumbered per revision attached to Letter to Appeal Board from B. W. Churchill (December 18,1984)).3t it is also important to note, in this connection, that hiercury's work on the instrumentation lines here in question has been subjected to ex-tensive reinspection and testing with satisfactory results. See pp. 25, 27-28, supra.
b.
Joint Intervenors, in charges \\(1)(d) (in part), A(1)(m) (in part), and A(7)(a), contend that welding and instrumentation work were not performed by qualified individuals. In particular, they claim that welders were not tested onsite and that pipelitters were substituted for welders. See J1 Exh. 8 at 3,10.32 See also Joint Intervenors' Reply at 21; Joint Intervenors' Response to ALAB-801 at 4 5.
Joint Intervenors fail to explain the significance of offs;te testing of welders. LP&L acknowledges that this occurred, explainirg that cffsite testing was often more efficient and is acceptable under the AShfE (American Society of hiechanical Engineers) Code. LP&L also statec that some pipelitters are skilled and qualified to perform welding, but only those who passed welding tests were permitted to weld. LP&L's Re-sponses to Specific Allegations at 40. With respect to instrumentation, union craftsmen, extensively trained onsite in an apprentice program, 31 We note that the NRC's Regulatory Guide I.44. " Control of the Use of sensitued stainless steel
6 (May 1973). at I.44-2 lists the limiting ofinterpass temperature asjust one of several techmques recom.
mended to control the sensituation of stainless steel during welding.
32 Joint Intervenors again rely on the M AC Report. JI Enh. I. but it contains no discussion of welder quahrications.
32 i
i i
e i
performed this work. It was also inspected and audited by site QA and QC personnel. Id. at 14.
The subject.of welders' qualifications was reviewe'd in depth by the staff and LP&L because of concerns identified by the staff in issues 9 and 22 of the Eisenhut Letter. See JI Exh. 9, Enclosure at 7,13. Issue 9 involved missing documentation for some support welds on instrumenta-tion cabinets, raising the question of whether all of the welders who per-i formed this work were qualified. In response to the staff's request, LP&L reinspected 17 of the 18 cabinets and located some of the missing i
documentation. The staff then reviewed a sample of LP&L's work. The j
results of the reinspection and review showed that the welding was ade-l quate to meet all expected loadings and that no rework was necessary.
The staff.also concluded that the generic aspects of this matter were ade-l~
quately evaluated. SSER-9, Appendix J at 49-50.
Issue 22 reflected the staff's concerns that, due to documentation defi-ciencies, some Mercury welders did not appear to be qualified, and that code requirements for the control of weld filler material had not been met. LP&L performed a review of, Mercury welders' qualifications and
{
found that all were qualified except one, a nonconformance that had 3
been properly dispositioned in an NCR. See LP&L Exh. 6 at 22-1 to 22 2. The staff's review confirmed that, although Mercury's records con-tained numerous clerical errors and were not maintained according to procedures, its welders were qualified for the various welding jobs per-i formed. (For example, w elders qualified to make groove welds were also qualified to make fl et welds, but not vice versa.) As for the control of filler material, th 6tuTdetermined that the redrying process used by LP&L instead of the. *., king required by the American Welding Society and ASME Codes was ar. ccepttble d,-viation and provided satisfactory results to ensure the necessa: e.imina ion of moisture. Consequently, the staff found this had no sa'fet, 'ignifunce or impact on plant hard-ware. SSER-9, Appendix J at 79-8. See o io NRC Staft's Further Re-sponse, Harrison Affidavit at 30 32;:. aff Re. 70nse to ALAB-801, Harri-son Affidavit at 33. All welders thus. ' pear,, have been qualified for l
the work they performed. We also take r. te ons 3 again of the successful resul:s of the reinspection and testing pro am it e Mercury's work. See s
pp. 25, 27-28, supra, c.
Joint Intervenors charge that Ebasco prr, urer. ent personnel were not adequately trained, especially in quality a. sur. ice. See charges A(1)(/) and A(3)(e). They have supplied five ext. hits 'o support these charges, but none is of probative value. J1 Exhs. Ib,19, '0, and 31 are various notes on, and listings of, audit items genert.ed 1.3m 1976 to 1978. Joint Intervenors have made no effort to direct au-
- ention to
-33 J.
i 4
y-
..-3
,-._.y.
-y
the particular parts of these documents that supposedly support their charge, and our perusal of' them is unavailing. LP&L notes one item of possible relevance - an NCR stating that there was no record of training for one Ebasco senior buyer - but points out that corrective action was j
taken on this matter and the NCR was closed out in 1977. LP&L's Re-sponses to Specific Allegations at 13, 27. See JI Exh. 20 at 3. The fifth
" supporting" document, JI Exh. 21, is a March 1981 NRC " Preliminary Notification" concerning the arrest of eight construction workers (none involved with either QA/QC or procurement) for possession and sale of marijuana. Obviously, this exhibit has nothing to do with the adequacy l
of the training of Ebasco's procurement employees.
d.
In charge A(1)(n), Joint Intervenors allege that alcohol and drug abuse was common at the Waterford site. An informer's affidavit claims that not only was such abuse common, it was condoned and even partici,-
pated in by management. JI Exh. 8 at 4. Joint Intervenors again cite JI Exh. 21, concerning the 1981 arrest of eight construction workers for j
the possession and sale of marijuana, but this time in a more relevant 1
contex t.
LP&L denies that drug and alcohol abuse was common at Waterford.
It points out that the allegations in JI Exh. 8 are vague and nonspecific.33 It also notes that LP&L management cooperated fully with local law en-forcement officials in the four-mond undercover investigation that led i
to the arrest of the eignt construction workers discussed in Ji Exh. 21.
LP&L describes its policy on drug and alcohol abuse - a policy strength-ened after the 1981 arrests. This policy applies to LP&L and contractor employees alike, and it provides for disciplinary action against employees found in possession of a controlled substance, even during off-duty hours. Unannounced searches, urinalysis, and observation by security personnel and timekeepers are means used to detect the use of unau-thorized substances. The policy also includes measures to educate and to assist employees with substance-abuse problems. LP&L's Responses to Specific Allegations at 15-17, The staff confirms LP&L's work with local law enforcement to mini-mize drug use onsite. Following a recent review of LP&L's drug pro-gram, the staff concluded that it was better than the industry average and appeared to be implemented effectively. lience, the staff has no con-cerns of this nature about the fitness of Waterford's operating stafT.
NRC StalT's Response, supra note 8, Crossman Aflidavit at 2, Enclosure I.34 33 The unexpurgated copy or this exhibit (see note 8, su/wo) contains no additional details on this point.
34 This was one of the stalTresponses that we did not sinke in A1.AB 801. See 21 NRC at 484.
34 l
f
4.
e.
Charges A(1)(o) and A(8)(a) concern an alleged lack of QC coverage for night shift construction work at.Waterford. Joint Interve-nors rely on the statement of a former worker, who claims that in 1982 Ebasco had no QC coverage on the night shift and that, according to a i
co-worker, Mercury had "only" one or two QC inspectors for 10 to 12-person night crews. See J1 Exh. 8 at 6-7.25 The allegations of the former worker are so nonspecific that they fail to provide any serious or credible support for the charge of no QC cover-age at night. For instance, the work supposedly lacking in such coverage i
is not even described, and an inspector / crew ratio acceptable to Joint in-l tervenors is not specified. Nonetheless, LP&L conducted a sample survey of 1982 Ebasco and Mercury work schedules. The survey results
{
show that, depending on the amount of work under way, Mercury had from one to 24 mspectors on the night shift. Also contingent on the amount of work involved, Ebasco had from one to four inspectors as-signed to the night shift. LP&L's Responses to Specific Allegations at 17-18. Charges A(1)(o) and A(8)(a) are thus without merit, f.
Joint Intervenors rely on other allegations in JI Exh. 8 (at 4-5) to support charges A(2)(d) and A(2)(e). They claim that whip restraints and temporary hangers were installed first and design drawings were l
done later to conform to the actual installation. They also assert that design drawings did not accurately reflect' interferences between pipe hangers an.d instrumentation.
i LP&L replies that whip restraints and temporary hangers were in-
~
stalled at Waterford in accordance with regulatory requirements and ac-
- cepted industry practice it explains that temporary construction hangers y
are used only to hold piping in place while permanent hangers are in-stalled; design drawings would serve no useful purpose and thus are not made for this type of hanger. Temporary resting hangers, on the other hand, provide additional pipe support during testing and are preceded by '
design drawings. Where field changes were necessary for this type of hanger, field or design engineering personnel were authorized, pursuant to approved procedures, to " redline" changes directly onto the design drawing. LP&L also points out that it is not uncommon to discover inter-ferences in actual installation that were not contemplated by the design drawing. LP&L suggests that the alleger may have observed such
~
'35 Jomt intervenors ainu rely on 11 Exhs. I and 22. the M AC Report and an August 1979 memorandum on the M AC recommendauons. The latter contams no reference to QA/QC coverage at mght, and the M AC Report itself makes only a passms reference to a hkely future need for " covering the around-the. clock work that hes ahead " Ji Eah. I at 2. Thus, neither adds support to these charges.
35
changes without understanding the ditTerences in hangers or the proprie-ty of making drawing changes in the Geld. LP&L's Responses to Specific Allegations at 22-23.
Although Joint Intervenors do not rely on it here, we note that the CAT Inspection Report discusses various discrepancies between as-built drawings and the actual installation of supports and restraints. The CAT concluded that, although no extensive structural integrity problems were identified, LP&L's inspection efforts in this area had not been totally elTective. JI Exh. 23 at 111-5 to III 9. As a result, LP&L performed l
two 100 percent reinspections of pipe supports and restraints. The staff l
reviewed this work and found only minor deGeiencies, none of safety sig-niGeance. Staff Response to ALAB-801, Mullikin AfGdavit at 5-6. See
- p. 52 and note 63, irlfra.
g.
AfGdavits from two former workers at Waterford provide the j
basis for Joint Intervenors' charge A(2)(0, concerning the allegedly i
improper installation of Hilti bolts. The allegers claim that, although design drawings required four such bolts on baseplates, often only two were used; welding to the bottom of the baseplate was done but not per-mitted; and bolts shorter than authorized were used on occasion. See JI Exh. 8 at 6,10-1I; JI Exh. 27 at 6 7.
j LP&L has extensively addressed the informers' allegations, including q
those not explicitly encompassed within charge A(2)(0. It first notes generally that, whenever it was necessary to deviate from design require-ments for the installation of Hitti expansion bolts (used to install anchor plates to existing concrete structures), engineering approval was ob-tained. More speciGcally, LP&L points out that there are numerous in-stances, involving both safety-and nonsafety-related hardware, where the approved designs called for two, rather than four, Ililti bolts in the anchor plate. With respect to the claim that such bolts were welded to the bottom of baseplates, LP&L states that this would be extremely un-j likely, inasmuch as this procedure would be more difGcult than that au-thorized and would have been discovered through QC inspections or su-pervisor observation. The use of bolts shorter than required would be readily detected during testing because they could not withstand the torque applied at installation. One such case was, in fact, identiGed and dispositioned in an NCR. LP&L adds further that liilti bolts are conserv-atively designed and have substantial reserve capacity. Thus, in the event of the isolated incidents described in the aflidavits, there would be no danger to the structural integrity of the plant. LP&L's Responses to Specific Allegations at 23 25.
h.
In charges A(3)(g), A(5)(b), and A(10)(h), Joint Intervenors complain that there was inadequate control of design documents. For 36 f
f a
r-example, design errors assertedly went uncorrected because it was not cost-beneficial to correct them, and labeling errors and the like made re-trieval and maintenance of these documents difficult. Joint Intervenors rely on a letter (undated, but probably written in late 1979) from LP&L to Ebasco concerning certain errors on drawings. See Ji Exh. 26.36 While LP&L's letter describes the drawing errors as "significant," the attachments to the letter listing the errors show that virtually all involve either the same misspelling ("extration steam" rather than " extraction steam") or wrong cross-reference numbers. /d. at 1, attachments. As LP&L explains, these discrepancies appeared on appliques or stickers af-fixed to drawings received by the project to facilitate distribution and I
review. The errors did not appear on the drawings themselves and did I
not affect the design information. They also did not affect document maintenance or retrieval. Thus, they can properly be considered minor (see note 36, supra), particularly because all items involved were classi-fied as nonsafety and nonseismic. Neverthelew, this matter was ad-dressed as an audit item, followed by corrective action and eventual closeout. LP&L's Responses to Specific Allegations at.29-30. See also id.
i at 36, 54.
I
- i. Charges A(3)(h), A(3)(i), and A(10)(g) (in part) concern alleged deficiencies in LP&L's records management system. Joint Intervenors argue that LP&L resisted recommendations to establish a suitable com-puterized records system, and that the contractor hired for this job quit as a result. They submit as support for these charges three September i
1978 internal LP&L memoranda, reflecting one individual's views on i
the recommendations of a task force on records management. See JI Exhs. 32, 33, 34. Another document, JI Exh. 35, is an April 1980 letter j
to the Waterford project manager from the contractor for the records system, expressing that firm's difficulties in installing and implementing the Master Tracking System (MTS) at the site.37 LP&L strongly defends its records management system. It notes that the computer system recommended by the author of 11 Exhs. 32, 33, and 34 was, in fact, installed and used by LP&L. It also states that, de-spite some initial problems and complaints from the contractor concern-ing installation of the MTS at Waterford, the work was completed in 1980 by that contractor and the system remains in use today. LP&L's 36 They also refer to an october 1979 handw ritten memorandum from and to umdentiried persons about errors on manufacturers' dramings This document is largely illegible and ummelligible. although n char-acterizes the errors en question as " minor." See 11 Esh. 25 at 2.
37 JI Exhs. I and 5 - the M AC Report and the NRC's Waterford Task Force inspection Report - are clso cited by Joint Imersenors. our attemion is directed to no particular portion of these documents that might support the charges m question. and none is apparent.
37
i Responses to Specific Allegations at 30-31. There is thus no basis to Joint Intervenors' charges.
- j. Joint Intervenors express a concern, based on a former worker's statement, that the safety of the plant may be affected by the alleged continuing use of temporary pipe supports. In charge A(4)(e), they claim that possibly more than 300 such supports have not been replaced with permanent hangers, which have a greater allowance for thermal ex-pansion. See JI Exh. 8 at 4.
But as we noted earlier, pipe supports were extensively examined during several walkdowns and reinspections, and no significant safety deficiencies were found. See p. 36, supra. See also LP&L's Responses to Specific Allegations at 34-35. We note further that the satisfactory per-formance of pipe supports and restraints was verified during the Pre-Core Hot Functional Thermal Monitoring Program. See SSER-9, Ap-pendix J at 16-17. Thus, Joint latcrvenors' concern about thermal ex-pansion has been addressed.
k.
Joint Intervenors assert in charges A(6)(a) and A(10)(g) (in part) that LP&L failed to establish an adequate and consistent compo-nents numbering system.38 They rely on JI Exh. 39, two November 1978 memoranda that simply suggest a particular numbering and iden-tilication scheme. The exhibit thus does not establish Joint Intervenors' point. Indeed, as LP&L points out, the system recommended in these memoranda was employed for plant startup and continues in use today, during the operations phase. LP&L's Responses to Specific Allegations at 37.
I.
Charge A(6)(b) states that LP&L failed to ensure that safety-related pipe hangers were fabricated from the correct steel and included all necessary parts. JI Exh. 8, a former worker's affidavit upon which Joint Intervenors rely, contains nothing directly on this point. There is, however, a related allegation that the metal used for some safety-related i
work at the plant lacked the proper identification and markings (e.g.,
heat numbers), precluding traceability in the event of a defect. JI Exh. 8 at 9.
38 In additson to this allegation and another (we p. 37 38, wpra). charge A(10pfs) also includes a claim that LP&L never corrected certain prot:lems identified by the M AC Report (we JI Enh. I at 6) and sari-ous audits. Joint intervenors refer to JI Enh. 5. the July 1984 w terford Task Force inspection Report, a
to support thrs charge rurther Although they have once again failed to speuly the applicable pt rtion of this lengthy report. section V is addressed to Joint intervenors' apparent concern Thcre the start notes LP&L's stafTing and auditing problems and its failure to respond promptly enough to the M AC Report recommendations. See Ji Enh. 5 at V-4 to V.7. we have already considered these matters at pp 20-21, 27 29. apra. and need not review them again in the content of omnibus charge AHO)(g), We add, how.
ever. that the Task Force Report considered this item to be ' closed " JI Exh. 5 at V.7 I
38
LP&L replies that hangers were not required to have heat numbers; rather, this hardware was accompanied by certificates of compliance with the appropriate specifications, provided by the suppliers. LP&L's Re-sponses to Specific Allegations at 38. The staff addressed a similar issue in SSER-7, allegation A-126. It noted that, in 1978, changes were made in the traceability system at Waterford, but implementation problems oc-curred. As a result, these changes were abandoned in late 1983. The steel certification program, however, had continued in effect throughout this time, and the staff found that it met the NRC's requirements. More-over, the individual who originally brought this concern to the stairs at-tention was satisfied with the certification procedures and the stafTs con-clusions. SSER-7, Appendix J at 135-36. It is also worth noting, once again, the favorable results of the several walkdowns and reinspections of the pipe hangers and supports at the facility. See p. 36, supra.
m.
Joint Intervenors raise essentially the same objection in charges A(6)(c), A(7)(c), and A(7)(d) - that weld rod traceability records were not reliable. They point to JI Exh. 8 at 9, where a former worker avers that, because the weld rod room was not open during the night shift, workers themselves filled out weld rod forms. These forms suppos-edly show that more weld rods were used than was in fact the case. This lack of accurate records, in the afliant's view, means there is no assur-ance that proper weld rods were used.
LP&L denies the charge, stating that there were detailed procedures for the storage, issuance, and control of welding materials at the plant site. It describes the special welding requisition forms and notes that i
these, along with a " weld traveller package," are stored in permanent
{
files to assure traceability. LP&L acknowledges that Ebasco's weld rod room was locked during nights and weekends when less work was in progress, but this was tc, prevent unauthorized entry. If welding material was needed, an attendant who could be easily summoned was available.
Other contractors maintained a full-time attendant whenever welding was being done. This system and the relevant documentation were audit-ed several times over the years and found acceptable. LP&L's Responses to Specific Allegations at 39-40. LP&L has thus efTectively rebutted Joint Intervenors' charge."
n.
Charges A(8)(d) and A(8)(e) assert that, contrary to existing documentation, QC inspectors failed to perform adequate inspections of safety-related work, such as main steam valves and fit ups on Mercury instrumentation tubing. See JI Exh. 8 at 7-8,10.
M We think at rioneworthy m thrs regard tha; J1 Enh. 27. an afrdavit from a former armer at Waterford.
does not identify any problems related to weld rod traceabihty.
39
In denying this charge, LP&L describes the procedures for inspection and maintenance of valves. It also refers to one instance where the QA program found that the Alain Steam isolation Valve had not been in-spected properly. This was written up in an NCR, the valve was rein-spected, and no deficiencies were found in LP&L's view - and we agrer- - this shows that the QA program was functioning properly.
LP&L also adds that each valve has been stroked (closed, then opened) and verified as correctly installed and operable.
With respect to the alleged problems with fit-ups in hiercury tubing, LP&L explains why this charge is not credible. Assuring a proper fit-up gap is a relatively simple procedure; on the other hand, an attempt to deceive a QC inspector by erroneous external markings (as JI Exh. 8 as-serts) would be more difDeult and time-consuming. If the gap in the tubing were not sufficient, the weld would likely crack and be immedi-ately detected and repaired. Further, because the purpose of the gap is i
to facilitate proper welding, once a weld is completed and found accept-I able, the size of the gap is no longer significant. LP&L's Responses to Specific Allegations at 45-47. We need only repeat that hiercury's work has been extensively reinspected with faverable results. See p. 25, supra.
Joint'intervenors argue, in charges A(1)(m) (in part), A(9)(a),
o.
A(9)(b), and A(9)(c), that LP&L failed to establish and follow proce-i dures (including the improper use of unqualified personnel) to control the handling, storage, cleaning, and maintenance of electrical equip-ment, valves, etc. They mention, in particular, two 1981 incidents of flood damage to electrical equipment and suggest that it may not have been reinspected and retested. These charges are based on allegations in a former worker's statement. See 11 Exh. 8 at 3-4,8-9.*
LP&L states in response that there were two flooding incidents in
}
October 1981. One was in a nonsafety-related area (the Turbine Build-l ing) and resulted in no damage to safety-related equipment. The other was in the Reactor Auxiliary Building and was caused by the failure of a valve to operate during pneumatic testing - not by unqualified workers.
The emergency diesel generator control panels incurred substantial
-damage and consequently were completely replaced. This incident was documented and resolved, to the NRC staff's satisfaction, through the NCR system. LP&L's Responses to Specific Allegations at 47-48.
Speaking more generally to the charges, LP&L explains the care and maintenance procedures for equipment employed during the construc-i tion phase. Valves are not ordinarily stroked during this period because i
"we note that there are some inconsistencies between Ji Enh. 8 and joint Intersenors' actL A charges.
For exarnpt*, the aMdavit refers to nood damage in 1982. rather than 1981. See JI Enh. 8 at 8.
j 40 l
t --
dust and construction debris could damage them. As part of the startup process, however, all valves are tested, the results are documented, and repairs are made. These procedures were audited and, despite minor deficiencies, found adequate. Id. at 48-49. LP&L also explains its proce-dures for hiring, training, supervising, and testing maintenance workers.
It points out that some maintenance positions require no prior experi-ence. Thus, the use of former cab drivers and bartenders, as alleged, would not be improper for some work. Id. at 14-15.
p.
In part D(1) of their motion to reopen, Joint Intervenors complain that LP&L's corrective acton for issue 5 in the Eisenhut Letter -
" Vendor Documentation - Conditional Releases - is not adequate.
See JI Exh. 9, Enclosure at 4-5. In their view, this issue concerns the lack of visual inspection of safety-related equipment by either vendor or site personnel at the time of receipt; i.e., documentation was checked, but not the qua;ity of the equipment or workmanship. LP&L's sample review of vendor documentation, according to Joint Intervenors, cannot substitute for visual inspection. Joint Intervenors' Motion at 36-37. See JI Exh.10 at 136-38.
1 As LP&L points out, Joint Intervenors misunderstand the concern raised by the staff in Issue 5. See LP&L's Responses to Specific Allega-tions at 80-81. The staff had found certain deficiencies in the handling of conditional certifications of equipment supplied by Combustion Engi-neering (the vendor of the nuclear steam supply system for Waterford)
- namely, QA documents (as-built drawings, material certifications, and fabrication plans) apparently missing since 1976. The staff consid-cred this documentation deficiency safety-significant because problems with vendor QA records could affect installed safety-related equipment.
The staff therefore directed LP&L to review its records to determine if such conditional certifications were identified and resolved. 31 Exh. 9, Enclosure at 4-5. Thus, this issue has nothing to do with visual inspec-l tion of equipment at the time of receipt; rather, it is essentially another I
missing records problem.
In any esent, LP&L has responded adequately to the matter raised by issue 5. In its submission to the staff, LP&L acknowledged that some conditional certifications from Combustion Engineering were not formal-ly tracked, but this was because the conditional nature of the certification was thought to reflect incompleted purchase orders, rather than hard-ware or software deficiencies. LP&L re-reviewed the records associated with Combustion Engineering material and equipment, as well as those of other manufacturers, and fc nd no matters that would adversely affect plant safety. In addition, LP&L has taken steps to assure that conditional certifications will be formally tracked in the future, and it 41
i has made a commitment to review all Combustion Engineering condi-tional certiGeations to determine if the conditions noted could affect the operability of the equipment. LP&L Exh.16 at 5-1 to 5-3. The staff as s
well reviewed a sufGeient sample of purchase orders and Material Re-ceiving inspection Reports. It concluded that LP&L's identification of, and corrective action taken on, the conditional releases of equipment satisfactorily resolved any concerns about vendor-supplied safety-related equipment. SSER-9, Appendix J at 27-28.
q.
Charges A(4)(b) and A(8)(c) and part E of Joint Intervenors' Motion (at 39-44) all concern the concrete basemat on which the Water-ford facility rests and the backfill surrounding it. We previously ad-dressed this matter at length in three decisions - ALAB-753,18 NRC at 1324-29, ALAB-786,20 NRC at 1090-95, and, most recently, ALAB-803, 21 NRC at 578-86, where we concluded that "no significant safety issue exists as to the basemat."4' Joint Intervenors raise no basemat-related arguments in the instant motion to reopen that we have not al-ready considered. Indeed, many of the exhibits on which they rely are rather familiar documents (e.g., JI Exhs. 41, 59, 60, 61, 62), and others are illegible and unintelligible or provide no support for the argument i
that LP&L has failed to identify, analyze, and correct problems connect-ed with the basemat (e.g., JI Exhs. 37, 38, 40, 56). We remain con-vinced of the adequacy of the basemat and reiterate that "any QA prob-lems associated with [it] have been satisfactorily resolved." ALAB-803, 21 NRC at 586 n.21.
3.
A number of other QA charges in Joint Intervenors' contention A still remain. But although we have considered each individually, they are so devoid of merit for one or more " generic" reasons that no lengthy dis,;ussion of them is warranted. See San Luis Obispo Mothersfor Peace, f
751 F.2d at 1320-21.
In some cases, the exhibits on which Joint Intervenors rely are simply of no probative value because they ar,. illegible, unintelligible, u : a '
ed, or they fail to identify their source.4r Jo.at Intervenors ' o rei, on certain large documents but fail to cite to the speciGc pages or portions assertedly pertinent to the charge, likewise making them of no value.
See ALAB-801,21 NRC at 483-84. See also p. 54, irlfra.4) As noted ear-lier, some charges and their corresponding exhibits are years old, yet Joint intervenors make no attempt to establish that the alleged QA deG-s 43 No party peutsoned the Cornrnmion ror review or any or these decmons.
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42 See charges A(l)(e), A(1)(k). A(2)(a), A(2)(b), A(2)(c). AU)(c). A(8)(b). A(10)(h).
43 See charges A(1)(a)(i), A(!)(a)(ul. A(1)(a)(ni).
42 a
b j
ciencies have not been remedied and thus continue to the present.** In other cases, the exhibits have no apparent relation to the specific I
charge, or the particular nature of the QA problem alleged is neither evi-i dent nor explained in the motion.45 Finally, Joint Intervenors at times rely on documents that, in fact, refute the corresponding charge or, at
{
i best, provide no support for it." Thus, Joint Intervenors have failed to a
supply, for these charges, the "' relevant, material, and reliable'" evi-dence required to support a motion to reopen. Diablo Canyon, ALAB-775,19 NRC at 1366-67.
4.
The extensive record compiled in connection with Joint Interve-2 nors' motion to reopen unequivocally demonstrates that a quality assur-ance breakdown did, in fact, occur in the LP&L Ebasco-Mercury chain.
l The breakdown was due in large measure to LP&L's inadequate staffing and a cumbersome NCR system, which in turn created problems in i
implementation of the QA auditing program and difliculties in trending deficiencies. SSER-7 (allegation A 48) and the Eisenhut Letter docu.
ment these problems. See SSER 7, Appendix J at 96-100; JI Exh. 9.
Some of these problems also prevented LP&L from initially acting as promptly as it should have, when various QA problems began to crop up 3
during the major period of plant construction.
On the other hand, the more serious QA lapses (e.g., in the inspector qualification area) involved the work of primarily one subcontractor -
y' Mercury. To be sure, the work of other subcontractors was not without
{
irregularities; but they were shown to be largely isolated instances and typical of problems found at other nuclear plants under construction. See e
Staff Response to ALAB-801, Harrison Affidavit at 10.*' No serious I
hardware or system defects were discovered in any of the work, despite i
44 5u charges Atiltalh), Af t)(a)(si), Af t)(1), A(!Hk), A(2)(a), AUl(b) AU)(n, A(4)(a),
e AIS)(a) A(5)(c). A(7)(b), A(10)(d), A(ll)(a), A(ll)(b), AUI)(d).
'r 43 Sec charges A(1)(n, A(1)(#), AG)(c) A(4)(a), A(4)(c). A(4)(d) A($)(c). A(!!)(a), A(ll)(b),
AU ll(c).
l Ser charges A(It(e), AU)(a), AU)(a), AU)(b). AU)(d), AO)(n. A($na), A(10)(d).
4 i
07 Joint Intervenors argue that a May 1984 draft of s5ER.7 (allesauon A-48) shows that there was a
" complete" breakdown of "all QA funcuons" Joint intervenors' Response to ALAB-801 at J & n.l.
1 We disagree, in the Grst place, a draft as Just that - a working document. la is entirely reasonable that a document like sSER-7 would go through several revisions before et appears in hnal form and presumably reflects the actual, intended posiuon of the preparer (s). In the absence of a legiumate reason to doubt that ssER.7, as pubhshed, represents the staffs position - and Jomt intervenors have supplied none -
the draft is not a parucularly useful item on which to rely. Su staff Response to ALAB 801, Crutchfield Affidavit at 4-5. This is true whether the draft document is a technical or mvestigatory report, a hugant's brief, or a Judge's decision.
i 4
second, the specific poruon of the draft Joint intervenors have called to our attention is enutled "As-sessment cr Alleganon." Read m context, et does not represent the staffs findings, evaluauon, or con-clusions - which are set forth in subsequent portions of the discussion of alleganon A-48. Further, we do not find the differences between the draft and the final versson of s5ER 7 so compelling. Both tell us what we already know from the substanual addeuonalinformahon available: shere was a QA breakdown in the LPAL.Ebasco-Afercarry chain.
4 4
43 t
t
. _ _. _ _ _ _,~._,
an extensive reinspection and document review e! Tort. Indeed, the QA documentation - originally suffering from numerous inGrmities itself
- is now materially
- complete and reflects the as-built condition of the facility, in short, the problems that existed either have been corrected or are without signiGeance insofar as the safe operation of the plant is con-I cerned. See Callaway, ALAB-740,18 NRC at 346.
Moreover, LP&L's QA program has shown considerable improvement i
in the last two years. LP&L's management responded convincingly to the several NRC inspections and investigations into its QA program during this time; its submissions in response to the Eisenhut Letter (and the actual work they represent) are impressive. Further, LP&L has incorporated the lessons it has learned from its past quality assurance i
failures into what appears to be an effective QA program for future oper-ation, so as to prevent a recurrence of the deficiencies revealed in this record.
Thus, the questions we posed in ALAB-801,21 NRC at 486-87, have been fully and satisfactorily answered. See generally Staff Response to ALAB 801, Harrison Affidavit at 15-45. The record shows that no safety-related construction errors remain uncorrected, and the break-down in LP&L's QA procedures has not been shown to be complete, systemic, or so pervasive as to raise legitimate doubt about the safe oper-ation of the planL See Diablo Canyon, ALAB-756,18 NRC at 1344-45.
e I
Reasonable assure,ee that the plant can be operated safely exists, and, I
hence, there is no ground for reopening en toint Intervenors' contention
{
A.48 as The stafr recently informed us and the parties ofits proposed $130,000 civil penalty against LP&L for vanous failures in 13 areas of its construction QA program. Board Nonfication No.85-062 Uune 4 1985). The stafr considers the violations to be sesenty Level 111 - Lesel I being the most serious and Level V the least senous from a safety standpoint. See 10 C.F.R. Part 2, Appendia C. supplement 11.
The Notsce of violanon and accompanying letter request an entenssve response (which may incorporate by reference previous submittals) from LPAL within 60 days.
The request for rnore information from LP&L and some of the language m the stalTs letter and Notice are somewhat cunous in light of the staff's recent strong endorsement, m rilings before 'as, of both LP&L's corrective actions and its operational QA program. Nonetheless the issues raised by the
. ' ~~
j Nouce of violauon are all derived from sSERJ. sSER 9. and vanous earlier inspecuon reports; nothing new is presented or revealed. Indeed, the pror e civil penalty appears to be simply the culmination of 1
the staff's vanous mspection efrorts over the last fcw years and was suggested in several reports. Sec.
e.g., sSERJ; Appendia J at 15; ssER.9, Appendia J at 5; JI Enh. 5. Appendia B, JI Enh. 23 at B 1 to B-2. Thus, we fully espected that some enforcement acuvity (including the imposinon of a punitise f: $
monetary fine) was likely to result from the deficiencies the stafTidenursed in LPAL's construcuon QA program. In other words, even if the full amount of the proposed penalty is ulumately e acted, neither s
it nor the events on which it is based would alter the outcome of our ruling here.
f pf O
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A
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E i
i B.
Management Character and Competence The second proposed contention on which Joint Intervenors seek reopening states.
I LP&L does not have the necessary character and competence to operate Waterford j
l' 3 in accordance with all NRC requirements and m a manner which protects the pubhc health and safety. Therefore, the Commission cannot make the findings re-quired by 10 CFR 50.57(a) needed to issue a heense to operate Waterford 3.
l l
Joint Intervenors' Motion at 15. Joint Intervenors argue that LP&L's i
lack of character and competence is demonstrated in essentially six ways: (1) pending investigations by the NRC's Office ofInvestigations into allegations of falsification of records and harassment of QA/QC per-i sonnel at the site; (2) misstatements and misleading statements by LP&L to the Securities and Exchange Commission (SEC) about the status and schedule of the plant; (3) inaccurate and misleading state-ments by LP&L in an April 27, 1984, letter to the NRC stafT; (4)
LP&L's historical failure to comply with NRC regulations and to correct noncompliances adequately; (5) LP&L's failure to upgrade its staff; and (6) LP&L's failure to ensure the competence of Ebasco site manage-ment.
Again, in considering Joint tervenors' claims, we have focused on whether these charges raise a sthnificant safety issue. We conclude that charges B(2) through B(61 do not, either individually or collectivcly.
Thus, there is no justification for reopening the record on these grounds to explore LP&L's character and competence at an adjudicatory hearing.
I As for charge B(1), however, the state of the record does not permit us to make a judgment one way or the other. The unusual problems pre-sented by this charge compel us to leave the matter for the Commis-sion's resolution.
1.
Joint Intervenors' first ground for challenging LP&L's character and competence is the pendency of several 01 investigations into alleged records falsification and harassment of QA personnel.** They provide a 4'In charge A(1)(g), Joim Intervenors clairs that LP&L took retahatory action agamst QA personnel who adhered sanctly to QA procedures. They rely on Ji Enh.12, an afridavit from an anonymous former QA engineer at the plant, who avers that he was terminated from his posinon for voicing concerns about quahty assurance. The staff mitially advised us only that 01 was "reviemmg assues m this area." NRC staff's Response, Crutchfield Aindavit, Attachment I (klatnn) at I. Because of the lack of specificity in the publicty available version of the afTidavit (see note 8. supro),01 cannot state whether this particular ellegation is encompassed within the matters it is investigating in connection with the Waterford facility, O! acknowledged, however bn a letter it made pubin), that one of those invesugations " addresses the i
issue of the alleged harassment and mtirnidation of Q4/QC personnel" Letter to Appeal Board from B. B. flayes ( Apnl 12,1985) at 1. we have therefore grouped charges A(1)fg) and B(1) together fx the purpose of our discussion here.
r l
s 45 i
l i
, - ~
P transcript of a July 13, 1984, meeting between staff and OI personnel and officers of LP&L. The purpose of that meeting was to discuss LP&L's program plan for responding to the 23 issues raised in the Eisen-hut Letter, and the credibility of the LP&L personnel responsible for im-piementing that plan. See JI Exh. 46, Tr. 3. Relying on an article from the Wall Streer Journal. Joint intervenors claim that 01 is ready to refer "over four cases" to the Department of Justice (DOJ) for criminal prosecution. Joint Intervenors' Motion at 15; JI Exh. 45.
LP&L replies that an 01 investigation is conducted to determine if a problem exists. Thus, the validity of any allegation that prompted an in-vestigation is indeterminate until an investigatory finding is made. With-out knowing any of the details of the investigations, LP&L is unable to respond more specifically, it strongly asserts, however, that its manage-ment has demonstrated the commitment, sincerity, and involvement necessary to operate Waterford in a safe manner. Applicant's Answer, supra note 11, at 23-24.
Because of the dearth of publicly available information concerning Ol's investigations (see, e.g., SSER-7, Appendix J at 15), we solicited more details directly from 01. Order of December 19,1984 (unpub-lished). Recognizing Ol's likely desire to keep sensitive investigative material confidential, however, we invoked the Commission's special policy for handling the inevitable conflicts that arise when investigations are conducted in areas with potential relevance to a pending adjudication.
See 49 Fed. Reg. 36,032 (1984). Under this policy, our subsequent com-munications with OI Lave been on an ex parte, in camera basis. See Notices of March 22, May 2, and June 4,1985 (unpublished).S Unfortunately, those communications have not been fully productive.
We solicited specific information from OI, in both written and oral form
- the kind of specific information we need "to determine the relevance of material to [this] adjudication, and whether that information must be disclosed to the parties " 49 Fed. Reg. at 36,033. Despite our efforts, i
complete, usable information has not been forthcoming. Some of the in-formation does not yet exist; i.e., although the investigations were begun in 1983 or 1984, most are not yet complete, and they will not be until late summer at the earliest. Further, Of is generally reluctant to provide anyone with information that it considers incomplete. In addi-tion, the 01 personnel who responded to our requests did not have first-4 hand knowledge of the subjects of our inquiry, or they were not ade-M Joint Intervenors recognize that we are bound by the Commission's pohcy, but formally note thest ob jecuon to, and seek to participate in. such bnefings pursuant to a protective order. Joint intervenors' Re.
sponse to ALAB.801 at 11 12.
46 I
l i.
l
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-.. _ _. - -. _ ~.
~.-. ~...
4M er 5
quately prepared; i.e., neither were they the actual investigators who conducted the interviews, nor had they read the notes or transcriptions j
of the interviews."'
To remedy this information gap - where it was apparent that informa-tion on a particular subject did indeed exist but OI was unable to describe i
1 or to summarize it for us - we took the unusual step of reviewing some l
of the investigative documents ourselves, in the NRC Regional Omce where they are located. Nothing we have seen gives.us cause for signifi-cant concern about the integrity of LP&L's management.52 On the other
- hand, we cannot rule out all possible grounds for Joint intervenors' charges. But Ol's position is that, until its investigation is truly complete (which may include consultation with DOJ), it opposes the release ofin-formation to the parties, even 'under a protective order. If the informa-i tion is not available to the parties, however, we cannot rely on it in f
making our decision. Ibid. Simply stated, we have no expectation of get-l ting adequate information from 01, which we can share with the parties and on which we can rely in making a decision, within a reasonable, defi-nite period of time. In this cifcumstance, neither a denial nor a grant of 4
the motion to reopen would be sustainable or fair. Thu,s, we are at an impasse.
Only the Commission, it would appear, can obtain full access to the in-formation discovered by 01 and thus determine its relevance to Joint in-3 tervenors' motion. And, under the Policy Statement, only the Commis-sion can decide if and when that information is to be released to the par-l ties. See id. at 36,034. Our experience here convinces us that there is a fundamental and philosophical conflict between the mission and duties of 01 and those of the adjudicatory boards." Tlie Commission alone is in the position to resolve this conflict. We thus have no real option but to leave this matter for the Commission to resolve.58 58 These circumstances are no doubt attributable to the hmued resources of, and many demands made on,ol
. 52 We have been scrupulous m the protection of the mformauon of has prov.ded us. we do not feel con.
stramed, however, from reveahng' the followmg. There is no besas for trat intervenors' claim that over four cases have been referred to DoJ. of has advised us that at has nierred only one case so far.
and DOJ dechr.ed to prosecute Letact to Appes. fward from B B. Hayes, supra note 49. A number of cases mvolve allesauons of QA r* cords falaracauon and harassment and snumidauon. See note 49 supra. some of them, however. appear to be isolated of anecdotal examples c(QA problems already and -
c fully addressed elsewhere. several cases have been closed. with rmdangs that do not reflect adversely on LPAL.
UA heensms' board recently experienced similar difriculues see Long /slead Lar4rms Co. (shoreham Nuclear Power stauon. Litut 17. LBP.8518. 21 NRC 1637.1643 44 (1985).
54We believe at would be fuhle to pursue the further procedures outimed m the Pohey statement,49 Fed. Res. at 36.034 Those measures focus on disclosure to the parues. %e are not even at that pomt yet; the problem here is disclosure to'this Board of possibly relevant mformahon. wnhin a reasonable ume period. %e have attempted to obtain mformation from Of smce February 1984. our efforts have (Contmurd)
I 47 t
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2.
Joint intervenors assert that "LP&L has made a significant number of misstatements and misleading statements in financial state-ments submitted to the (SECJ about the status and schedule of the Waterford project." Joint Intervenors' Motion at 16. They cite seven in-stances, during February-July 1984, in which LP&L made these state-ments." According to Joint Intersenors, LP&L's estimated time of re-ceipt of an operating license in these documents was disingenuous, gisen that the NRC stalT had already informed LP&L that alleged con-struction QA deficiencies would have to be resolved before licer :.e is-suance. And, in their view, LP&L's misleading statemer.t3 to the SEC show "its lack of honesty with regulatory bodies" and inability to be trusted with regard to statements about the safety of Waterford. /d. at 21.
We do not and cannot properly decide if LP&L's filings with the SEC and related issuances to stockholders are " misleading" for the purposes of the securities laws. But neither do we disclaim entirely any interest in how LP&L portrays its dealings with the NRC in public documents - as did the stalT in its submission stricken in ALAB-801. See NRC Staff's Response, Crutchfield AITidavit at 4. For, if LP&L's statements to the SEC and stockholders were to be so at odds with the facts as we know them, there would be room for legitimate concern, and possibly further inquiry, about LP&L's honesty with the NRC. The NRC's dependence j
on a licensee for accurate and timely information about its facility makes candor an especially important element of management character. See Metropohran Edison Co. (Three Mile Island Nuclear Station, Unit 1),
ALAB-772,19 NRC i193,1208 (1984), rev'd in part on other grounds.
CLI-85-2, 21 NRC 282 (1985). See also id., CLI-85-9, 21 NRC 1118, i136-37 (1985); South Texas, 21 NRC at 371 (nexus of particular charac-ter trait to particular performance standards contemplated by Atomic Energy Act and NRC regulations is requiredL We have scrutinized each of the seven statements cited by Joint Inter-venors. To be sure, the drafters of the statements chose their words care-beert largely unsuccessful what me have learned has come only aher considerable prodding on our f'
part. l'urther. the last two years of this proceeding have been characterated by entreme, albeit often un-avoidaole. delsys. we are not melting to incur further delay in the dispoutton of Joent interbenors' l
motion whilt a completts its work. In this decision. we rule on all other matters before us we believe f
it es both logscal and more efDrient for the Commmion to address this remaining, unique matter in the t
content ofits censideration of our opinion here si g g) (pat 1983 Annual Report (February 23. 1944) - JI Enh. 47. (2) si C Form 10-K (for 6 sal year ended December 31.1983. Gled March 30.1984) - JI Enh 48. (3) Preliminary Prospectus IMay
- 25. 1984) - LPAL Entt 10. (4) Prospectus Ifded June 7.1984) - Ji Enh 50. (5) Amendment to j
Registration sistement (Jury 24. 1984) - LPA L E ab. I1; (6) Middle south Utahues. Inc (the parent of LP&L), Memorandum to Members or the Financial Community (July 30.1984) - 11 Enh 51 A. (7)
Middle south L.!!ahties. Inc.. Report to stockholders (July 1984) - 11 Enh $2.
i 48 l
fully, including appropriate qualifying words and phrases, as necessary.*
As events developed and the NRC's inspection elTorts intensified, the language in the statements was modified on the basis of the best infor-mation available at the time." The statements indeed reflect an attitude of optimism, but it is sufficiently tempered by reality. They also show LP&L's confidence in its Waterford facility - a view naturally expected from the management of an organization. But we cannot conclude, as Joint Intervenors urge, that the statements are either misleading or inac-curate, so as to cast serious doubt on LP&L's withngness and ability to deal honestly with the NRC.
3.
Joint Intervenors allege that LP&L made inaccurate and mislead-ing statements to the NRC as well in an April 27,1984, letter. Joint In-tervenors' Motion at 21-26. This letter was LP&L's formal response to an April 2,1984, letter, in which the stafT set forth some 39 allegations of improper construction practices at Waterford. See Ji Exhs. 54 and 53.
Joint Intenenors claim five of LP&L's 39 responses were " false state-ments." Joint Inter enors' Motion at 21-26.
Joint Intenenors' arguments are without merit. As " proof of the falsity of LP&L's April 27 response, Joint Intervenors rely on several 4
5* For exampec. LP&L's 1983 Annual Report states that "/s/uNrer so the umely issuance of the neces.
sary hceme t'y the (NRCl, fuel u scheduard to be loaded into the reactor durms the second quarter of 1984. and commercial operauon es asiayased by the end of 1984 " JI f th 47 at 3 (emphasis addedL The 10.K statement explicaly notes that, although LP&L " currently espects to receive an operat og Icense from the NRC m April 1984." the opposinon of "anu-nudear groups" can resuh in " regulatory delays." The statement goes on to set forth the esurnated addnional fmancing charges that would be in-i curred were wch delay to occur - asam emphcitly acknowledgms that possbikty. JI Enh. 48 at 6 virtu.
ally idenucallanguage appears m the May 1984 Prehmmary Prospectus, June 1984 Prospectus, and July I
1984 Regestrabon statement amendment. $se LPA L Enh.10 at 5. Ji Enh 50 at 5. LP&L Enh 11 at 5 M in the Prehmmary Prospectus. LP&L no longer states eben a espects to receive a hcense; rather, n "entripays that w terford 3 edl be ready for furl loaMr m late May 1984
- LP&L Enh.10 at 5 a
(emphases addedL The Prowectus filed on June 7 states thai LP&L "beheves" the plant is ready for fuel loading J1 Enh. 50 at 5 six weeks later, the amendment to the Registrauon statemens diwusses the June 13. 1984 Essenhut Letter h notes that the NRC requered these inues to be resolved before lecensmg. that LP&L had submitted a program plan for resoluuon of the issues, and that n was involved m conunums diwussions unh the staff on these matters 16 siso memsom commencement of a program of ultrasome nestmg of the bawmat "for the purpose of proved.ng rinal auurances" of the mat'.s structur-al miegnty The statement cauuons that hcense essuance **should not be espected before possibly taie August or september 1984 " LP&L Entt il at 5 The Middle south memorandum to the fmarKlal com-mumt). tswed one week later. reflects an urtical attitude but is also consistent with L P&L's sEC Ghnss.
See Ji Exh. 51 A.
Joim Intervenors argue that LP&L essenually knew that us problems were more signs 6 cam than us 61 mgs reflected. But m support of this, they reprarrdly rely on documents that were prepared or events that occurred after the issuance of the parucular statements in quesuon or the ume period they wrtre m-tended to cover for mstance. LP&L's 10 K films expressly covered the year ending Desember 31 1983. and it was fled March 30.1984 Ser 11 Enh. 48 iet Jomt intervenors rely on a letier from the NRC to LP&L - dated Aprd 11984, and requestmg addinonal mformanon on 39 mues - as an mdga.
tion that LP&L's 10-K statement of an espectauon of hceme muance m Arnl 1984 was mnicadmg Joint intervenors' rehance is all the more misplaced m view of the staffs request for the additional mfor.
manon by Apnt it. "ldn order to maintain the wheduled hcenung decmon date of late April or early May
- 11 Enh. 53 49
NRC-generated documents, which identify certain problems in LP&L's construction QA program.58 These documents, however, were not even in existence at the time of the April 27 letter." More important, the 39 allegations in the stalTs letter - described as having been " received over the last several months" - were broad and unspecific. See 11 Exh.
53,*> Further, LP&L had a limited time in which to respond to the stalf (less than a month), it is thus not surprising that LP&L's response was lacking in detail.
~
lt is also clear from the stalTs letter that the review of the QA allega-tions was then at a relatively early stage and was expected to continue for some time. See ibid. Consequently, there is no indication that the stafT either viewed LP&L's April 27 reply as the final word on the mat-ters set out in the staff's letter, or was misled by it. Indeed, this was the first of several exchanges of correspondence, with each round becoming more focused on particular, asserted construction or QA deficiencies.
58 See Eisennut Letter (June' 13, 1984) - JI Eih 9. waterford Task Force Inspection Report No.
50-382/84-34 (July 20,19848 - JI E nh. 5. Robert E. Philleo, -Evaluanon of Concrete Construction Ad-equacy m the Bawmat (May 18, 1984), attached to NRC staffs Monon for Addiisonal Entension of Time (June 14,1984) - JJ Enh. 41, CAT Inspecoon Report No 50-182/84 07 (May 14,1984) - JI Exh. 23, viemgraphs from staff meeung with LP&L ( August 17,19848 - JI Eih. 56 l
Joint Interveriors also rely on an amdavit from their counsel, daied September 24,1984 (11 Enh. 55).
The purpose of the amdavit is not clear, other than to show that certain documents were lost dunns part of 1983 and 1984 - a fact no one disputes. Tht amdavit refers to the 6nd4ngs of George Hill, the former head of a document renew team at Waterford. Any news held by Mr. t{ill, however, should have been submitted m an amdavia by him, not Jomt intervenors' counsel. Dwbb Cavos. ALAB.775, 89 NRC at 1367 nJ5 j
H The only matter cited by Joint intervenors that predates the Arni 27 letter is NCR w3 7549 (Febru-I ary 1,1984). Joint Intervenors state that this NCR recorded many of the same problems ident:Ged by f
the staff m liern (11) of the Apnl 2 letter 6 e, entra supports for instrumentation cabmets were alleg-edly made from matenals wuh no heat numbers, completed by uncertified welders, and enarmned by un-cert 4ed inspectors) see Jomi intervenors' Monon at 25-26 Jomt intervenors thus suggest that LP&L j
did not respond enurely truthfully when it descnbed this alleganon. m sts Apnl 27 letter, as "!plantally valid " See II Enh. 54, Attachment. Item (Ill. LP&L agrees that the NCR and item (!!) concern es-sentially the sarne thing, but states that the "disposauon o(the NCR at the time was the same as in the Apnl submittal." It subsequently supplemented the NCR, and the matter was closed as part of ssER.9/
lssue 9 LP&L's Responses to speci6c Alleganons at 71.
- 3 The Gwe items or concern here to Joint Intervenors demonstrate the unparticulanied nature of the allegauons m the staffs Apnl 2 letter-
- 1. It has been afleged that civil / structural and pepmg QC mspectors were not certMed m accord-ance with the appropnate requirements.
4 It has been alleged that basemas concrete was not placed in accordarme with the ACl (Amen-can Concrete Insutute! Codes.
- 7. It has been alleged that a complete (100%) renew of all cretts pami.cn> penages was not performed thoroughly m thai p8f NCR's, hasty Grams EDTs arid letters were not mcluded I
in the review l
- 11. It has been alleged that the entra supports for mstrumentauon cabinets covered by an ICR
{
that were mounted on graungs moede contamment were fabricated with masenals for which there as no heat numbers traceabihty by unceruGed welders and enammed by uncertMed mspectors Iml.
21 b. It has been alleged that... (w!c6ders and QC weld inspectors were not adequately quahned.
+
11 Enh. SK Enclosure. The subjects raised by these alleganons are addressed above in our discussion of Joint intervenors' contention A and in our decmons concernmg the basemat, AL AB-753, ALAB 786, and ALAB-803.
50 I
,t
l Nor is there any evidence that LP&L did not supply the best answers possible in the circumstances at that time. Much closer review of more specific allegations by LP&L later, at the stafTs urging, did bring to light correspondingly more accurate (and sometimes less favorable to LP&L) information than that provided in LP&L's April 27 letter. But that fact does not fairly raise " doubts about LP&L's forthrightness and honesty with the staft" in the April 27 letter. Joint Intervenors' Motion at 25.
We therefore reject Joint Intervenors' argument that this letter was either inaccurate or misleading.
4.
In further support of their challenge to LP&L's management char-acter and competence, Joint intervenors allege that "LP&L historically has failed to comply with NRC regulations and when cited by the NRC has failed adequately to respond to correct noncompliances and prevent j
their recurrence." Joint Intervenors' Motion at 26. They cite generally to Issue 23 in the Eisenhut Letter, concerning the QA program break-down between Ebasco and Mercury (see JI Exh. 9 Enclosure at 14),
f and to the particular items listed in the CAT Report as matters LP&L failed to correct despite its previous commitments to the NRC to do so.*' in their supplementary comments, joint Intervenors stress that i
LP&L's asserted failure to correct these QA problems, until after the NRC's repeated urgings, shows a lack of initiative and absence of basic managerial capabilities. Joint Intervenors' Response to ALAB-801 at 13-14.
We agree with Joint Intervenors that it is undesirable for the NRC routinely to be the principal stimulus in getting a licensee to correct pre-v,iously identified deficiencies. The Commission must necessarily depend heavily on a permittee or licensee to report important informa-i tion and to assume a role of at least partial self-pokemg. See p. 48, supra. It is therefore essential that the motivation to discover, analyze, and correct potentially safety-significant problems origmate with plant management.
We are unable to conclude here, howeser, that LP&L lacks either the willingness or desire to correct deficiencies that could affect the safe op-eration of the Waterford plant. With respect to Joint intervenors' reli-ance on Issue 23 in the Ei:>enhut Letter, we have already discussed in
- rt !LA, apa, ac iact that a serious breakdown in a portion of
- l All!. > ugh Joint lmervenors repeatedly refer to "Enhibit 24' as CAT Inspecuon Report No.
50-382/84-07 it es en rect their L mhitui 23 The ris-e siems concern (1) heating, senulating, and sit condi-teomng and electrical raceway seismic supports. (2) a& bush verirmation or pipe supports and ship re.
stroints. Of maimenance or safety-felated moiors. (4P structural steel melders by Peden steel, and ($1 the clearance between permns and ad>acent structures Ser Jf Enh 23 at 11-4 in Il 5.1115 to 1119,1113 io ll-13. tv.10 to lv.ll,118-l to ill.5. vill-5 to vill 4.
51
LP&L's construction QA program indisputably occurred. Further, this breakdo yn was, in part, a consequence of applisant's failure to respond fully to ine 1982 Notice of Violation. But it is also true that LP&L's QA program first reported this situation. Afore important, the record shows that signyicant matters have not gone uncorrected and the breakdown was not so pervasive as to raise a legitimate concern about overall plant safety. See pp. 43-44, supra.
Aforeover, the five particular matters highlighted in the CAT Report as remaining uncorrected despite previous citations from the agency must be viewed in their proper perspective.62 in the first place, the CAT Report itself notes that the underlying cause of these deficiencies was LP&L's "difliculties in implementing an elTective in. process quahty assurance program." JI Exh. 23 at A-1. Our conclusion that LP&L now appears to have remedied that more fundamental problem (see pp.
43-44, supra) logically suggests that significant improvement in LP&L's.
corrective action program will follow. In fact LP&L has already acted to strengthen its " Licensing Commitment Tracking Program." The staff (includmg members of the CAT) has reviewed the revised program and concludes that it is adequate and, if implemented adequately, "there should be no future concern that NRC identified problems will not be corrected." Staff Response to ALAB-801, Af ullikin AITidavit at 4. Afore-over, the five instances of uncorrected deficiencies identified in the CAT Report and relied on by Joint intervenors were the only such in-stances found by the CAT. / bid. The CAT did followup inspections as to each and determined that all ofits concerns were satisfactorily resolved, despite some minor problems that were identified. Id. at 4-8.*)
Thus, while LP&L did fail to correct ccriain deficiencies identified by the NRC in earlier inspections, the record does not establish a pattern of recalcitrance on the part of LP&L so as to suggest the continuance of a historical trend. LP&L eventually - albeit at the staffs urging - ad-dressed and corrected the identified deficiencies. See LP&L's Responses to Specific Allegations at 77-78. But more important, it has acted to ol n addiuon to thest A. Nms, Jomt intervenors refer as well to issue 16 in the Enenhut Letter, i
which concerns LP&L
- asserted railure to pursue vigorously surveys and enit mierviews it conducted j
with QA perscnnel m early 1984 Secause this was not a matter previously ident 6ed by the NRC as requinns correcuve acteon. which LPAL failed to undertake, the relevance of issue 16 to Joint interve.
nors'speofk argument here is unclear Rather, issue 16 seems more perunent to LPAL's responubihty to idenofy possibly programmauc Q A de6ciencies. See pp. 26 27. mswa in any event. despite its earlier cnucism m the Enenhui Letter. the staff now Gnd LPAL's QA mierview program - imuaHy undertak.
en voluntanly - to be wgmfkantly improved and workms well. 5%R 9. Appendu J ai 65-68 staff Re.
spurise to ALAS 401, Crutch 6 eld Affidavit at 611. we have been Eeven no cause to conclude otherwise.
Si For examp4e. m one case. "a mmor procedural viotauon* concerners documentauon was dncovered, and "mmor rework" or no safety ugni6cance was required on about one amth or the 3,600 pipe sup.
ports /restramts start Response to ALAS 401. Muthkm AI6 davis at 6.
51 I
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assure better tracking of such matters in the future.** In these circum-stances, we have no reasonable basis to doubt LP&L's management character or compet:nce in this regard. See generaI& Diablo Canyon, ALAB-775,19 NRC at 1369-70.
5.
Joint Intervenors separately raise another example of LP&L's as-serted failure to correct a problem identified previously by the NRC:
"LP&L failed to take necessary action to upgrade its stalT after repeated warnings by the NRC that its stalTing was too low and affected the readi-ness of the utility to begin operations." Joint Intervenors' Motion at 28.*5 They rely on two NRC documents as support for this charge. One is a memorandum, dated May 7,1981, in which the NRC's Division of Human Factors Safety states that it could not complete an audit at the site because the level of staffing and management readiness was so low at that time. JI Exh. 57. The other is an August 4,1981, memorandum from a staff member to the Advisory Committee on Reactor Safeguards (ACRS), comparing the organizational structure and stafT of several plants. He observed that there was little commercial nuclear operating experience at Waterford and that many plant and corporate support posi-l tions needed to be filled. JI Exh. 58 at 3.
Joint Intervenors' exhibits, however, do not tell the whole story.
They ofter only a snapshot glimpse of the status of the plant's operations stafT in mid-1981, without providing any relevant developments since then. To begin with, the NRC's appraisal of the operating staff level at Waterford in 1981 was made on the basis of LP&L's " overly optimistic,"
i then-scheduled fuel load date of October 1982. Staff Response to ALAB-801, Constable Affidavit at 12-13. More significant, however, is the fact i
that, after being advised of the NRC's concerns, LP&L quickly acted to alleviate them. By December 1981, the stafT found that LP&L had al-ready "taken positive steps to significantly improve its organization." /d.
at 13. These changes, including substantial mereases in experienced per-sonnel, were implemented from January 1982 to December 1984. /d. at
- 14. In March 1982, the ACRS, as well, was able to report that, contrary to its concern seven months earlier, LP&L's organization and staffing would be adequate to operate Waterford in a safe manner by the then-projected fuel load date of January 1983. LP&L Exh.15. The stafT con-tinued to monitor LP&L's progress in this regard up to the time LP&L 64 f t es entirely appropnate that ne consider an applKant's successful remedial efforts m c.innection enh staims that a lacks the necessary character and competence to oversie a piam safety. See South Texas 21 NRC at 37174 Not to do so wou6d have the undeseraNe enect of dncouragms appheants and licensees from promptly undertahmg such correctne measures 65 Al pp. 20-21. supre. me hate docussed Joint Intervenors' related charge in connectson with contention A - e e.. A(ilt19 - that LP&L faded to mamtain adequate staffmg for its QA pogram dunns ranstrur.
- me or the plant 53 4
was actually ready (and later authorized) to load fuel and to operate at low power. It concluded in December 1984, and still maintains, that LP&L has adequately upgraded its stalT. Staff Response to ALAB-801, Constable AITidavit at 1516. Its rperational QA stalTing Icvels, in partic-utar, now compare favorably to those of other plants. /d., liarrison Af-fidavit at 54-55.
Joint Intervenors have thus failed to show that LP&L did not address a significant matter brought to its attention by the NRC. Indeed, the record shows that LP&L responded promptly to the Commission's ex-pressed concerns that the plant might not be staffed adequately, in terms of both manpower and experience, by the time of fuel load. A skilled workforce cannot be hired overnight. Gisen that inherent con-straint, LP&L actively recruited personnel and steadily increased its op-erations staff in the three years since the NRC first brought the matter to its attention. No more could reasonably be expected from LP&L's management.
6.
Joint Intervenors' last argument in support ofits claim that LP&L lacks the character and competence to operate Waterford safely concerns Ebasco's site management. Joint Intervenors rely on the fact that, in Stay 1983. Ebasco assigned Robert Starshall, a former Kaiser Construc-tion superintendent at the Zimmer nuclear plant in Ohio, to Waterford l
as site manager. They refer to some ten QA problems allegedly associat-ed with hir. Af arshall and discussed in a November 1981 NRC inspection
{
report on the Zimmer facility. Joint Intervenors' Afotion at 29-32. Joint intervenors thus suggest that, in permitting hlr. Starshall to serve at Waterford, "LP&L failed to ensure that Ebasco site management was competent, trustworthy, and dedicated to quality principles... " /d. at 29.
Joint Intervenors have not provided any documentary support for their allegation - specifically, reither the Zimmer inspection report on which they so heavily rely, nor even any page citations to it. At a mini-mum, Joint Intervenors were obliged to direct our attention to the specific portions of the report that ostensibly support their serious charges against hir. Afarshall. Their having failed to do so, we are not cb-liged to do Joint Intervenors' research for them. See ALAB 801, 21 NRC at 483-84; Phdadelphia Electric Co. (Limerick Generating Station, j
Units I and 2), ALAB-804,21 NRC 587,592 & n.6 (1985).*
4 66 This is perucularly irue here because the Lmmer inspection report in quesiion is about 420 pages long imctudmg enhibits) and our copies are all on micrornhe, making review or the report estremely difTicult. (Due to space hmitaitons, readily available copies or older NRC mspection records are now retained only on micrornhe. Moreover, the bmmer construction permit has been revoked and the operstmg hcense prmeeding terminated. see Carmserr Gas d Electrr Co. Dahet No $0.M8. Order Revoking Construction Permit t May 16.1985))
54 i
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. More important, Joint Intervenors fail to link Mr. Marshall's brief j
tenure at Waterford to any particular pr'oblem at that site. They allege that "la}fter NRC complaints about Mr. Marshall circulated at Water-ford, he was removed from his position and moved to Ebasco corporate I
headquarters.." but, as noted above, they neither cite to nor submit any support whatsoever for this charge. See Joint Intervenors' Motion
[
at 29 n.2. LP&L, on the other hand, strongly denies the allegation, as-setting that Mr. Marshall was only temporarily assigned to Waterford to i
complete the last phase of construction. When that was essentially ac-complished by May 1984, "Ebasco requested that he be released to l
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assume his role as Vice President, Nuclear and Defense for Ebasco i
Constructors in.. New Jersey." LP&L's Responses to Specific Allega-tions at 76. Joint Interrenors have thus clearly failed to satisfy their 1
burden of showing that the employment of Robert Marshall at Waterford raises significant questions about LP&L's management competence'and integrity.
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C.
The Adequacy of the NRC Staff's Inspections and i
Investigations 4
l Joint Intersenors' third proposed contention states:
f The NRC StafTs special CAT inspection, Special Inquiry Team mspection, Task l
Force mspection and Omce of Investigation mquiry, and the corrective action, j
j mcluding remspection and rework, which the Staff has required of LP&L, are not j
t adequate to ensure that construction deficiencies of potential safety signiGeance at t
l Waterford have been resolved and that LP&L will be able to operate Waterford 3 m j
accordance with all regulatory requirements and to protect the pubhc health and l
2 safety.
l i
i Joint Intervenors* Motion at 32. The contention reflects Joint interve.
j nors' general dissatisfaction ~with the stafTs efforts at Waterford and its l
treatment of the allegations addressed in SSER-7. Joint intervenors are i
similarly dissatisfied with LP&L's response to the QA problems identi-fied by, and of concern to, the stafT. See id. at 32-36,46a-49,51-57.*'
l Insofar as Joint Intervenors seek to litigate the adequacy of the staffs work in connection with the Waterford facility, they propose a conten-i i
1 1
67 The structure or Jomt intervenors' rnotion - organared around the propowd contentsons - starts to l
break down etth contentum C Nmetheless. we attempt to address their arguments en the contest i
where they rnosi ingwally seem to ret The motaon also coma na two pages numbered "46." se have renumbered the accond "464."
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tion that is not litigable.** "[Iln an operating license proceeding.. the applicant's license application is in issue, not the adequacy of the stalTs review of the application. An intervenor
. may not proceed on the basis of allegations that the staff has somehow failed in its performance."
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-728,17 NRC 777, 807, review dechned. CL1-83-32,18 NRC 1309 (1983). This fol!ows logically from the fact that it is the appli-cant that ultimately bears the burden of proving its entitlement to the privilege of an operating license. See Consumers Power Co. (Alidiand Plant, Units 1 & 2), ALAB-315,3 NRC 101,103 (1976). Storeover, the NRC's adjudicatory boards are not empowered to direct the staff in the conduct of its inspection and investigatory duties. Carohna Power and Light Co. (Shearon liarris Nuclear Power Plant, Units I, 2, 3, and 4),
CLI-80-12,11 NRC 514, 51617 (1980). Absent such authority, it would make little sense to litigate the adequacy of the staff's independent performance.
This is not to say, however, that the stalTs review - and, necessarily, its adequacy - play no role at all in a licensing proceeding. They do indeed, as is evident from this very case. In ALAB-801, for instance, we explained why " thorough staff input" is essential to otar resolution of certain "important matters [ raised by Joint Intervenors' motion) that could bear directly on plant safety." 21 NRC at 482. See also ALAB-786, 20 NRC at 1091 & n.7. We would be less than candid were we to deny that the adjudicatory boards have traditionally found it useful and j
desirable to rely on the staffs expertise for an culuation of contested issues, especially technical ones. See, e.g., Florida Power and Light Co.
(St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-553,10 NRC 12, I4 n.7 (1979). See also South Carolina Electric and Gas Co. (Virgil C.
Summer Nuclear Station, Unit I), ALAB-663,14 NRC 1140,1156 (1981), review darlined, CLI 8210,15 NRC 1377 (1982).1nis is partic.
ularly true where, as herc, the primary basis for the proposed conten-tions is a series of findings that resulted from staff inspections and in-4 vestigations. Thus, the staff's review is a significant ingredient of NRC licensing proceedings, even though its adequacy cannot be litigated per se, as a contention.
i 64 To the entent that contention C challenges the adequay of both the correchte actions required by the stafr and LP&t.'s response - en general and with rer.ard to speceric sileganons le g.. NCRs) - we ha,e already addressed these matters an our discussion er contentoons A and B our determinauon that neither of these proposed contentions raises a significant usue marranung reopening of the record (with the esception of the matters relaung to 01 invesuganons) necessarily required our conuderanon of the adequaq of the corrective action for edepuried dericiencies.
i 56 s
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Because we have concluded that Joint Intervenors' contention C, chal-lenging the adequacy of the staffs work at Waterford, does not raise a litigable issue, we need not address any of the reopening criteria with regard to this contention. Nesertheless, some comment on Joint Inter-venors' criticism of the stafT is warranted. On the one hand, they char-acterize the staffs recent inspections in connection with the plant as
" unprecedented" and "comprehensise" and refer to the " increasingly strict reinspection programs" imposed on LP&L by the staff. Joint Inter-venors' Motion at 32,33,46a. But on the other, Joint Intervenors are quite critical of the staffs efforts, particularly in comments directed at staff work not yet completed by early November 1984, when Joint inter-venors filed this motion to reopen. See, e.g., id. at 52,55 57.**
i We believe that Joint Intervenors' criticism of the staff is not de-served. It undoubtedly could be fairly argued that greater NRC staff oversight throughout the construction of Waterford might have prevent-I ed or lessened the QA problems that were later revealed. But once the allegations began to mount, the staff devoted rather substantial resources to assuring that the facility was constructed properly and will 3
operate safely. See Staff Response to ALAB-801, Constable Affidavit at t
10-11; id.. Constable Exh. 3, Attachment at 1. The staffs efTorts f
included, where necessary, walkdowns and actual inspections of plant systems, as well as extensive records reviews. See. e.g., id., liarrison Af-fidavit at 36-38,41-42. See also note 48, supra. Thus, even if contention C were litigable, Joint Intervenors have failed to show here that the staffs inspection efforts raise a significant safety issue.
t As we hase seen, many of Joint Intervenors' charges concerning faila ures in LP&L's construction QA program are substantiated by various NRC inspection reports and other documents. But the ' thousands of pages that make up the record for this one motion to reopen also show i
that LP&L cventually acted to assure that all significant deficiencies
- Joint intersenors also fire other assorted and random shots at the staff, f or esample they daim that the staff has ps,t mariy of the andmduals eho oregmally made allegauons about the quality of construc-tron at % sterford on the 'eRC's payroll. Joirt intervenors suggest that thts has compromised the alleg.
ers' mdependefwe Jomt irtervenors' Motwin at $6 Joint inte senors offer no corroboranon whatsoever for thn charge Marcoser. the *contmued independence" of the allegers is hende the pomt what is im.
portant n whether tecre n any baus to the alleganons as made and. if w). whether proper correcuve action has been taken 4 f t is important to disunguish the staffs conwderable mnreason actmty nscif from ns wnttea presenta-pons to us cornern ng that actmty. Our rather harsh crneosm of the staff m ALAB-801. 21 NRC at 482 87. was limned to the staff s failiare. up to that pennt, to communnate effectne'y the reasons for ns corduuons As n evider:t from prmcipally our d6cumon an part 11 A 1. n/va. thn proNem has been cured by the staffs sorgdementary ritmg m response to ALAB-801 57
were cor ected. It is also clear from the record that, after extensive rein-spection.ind document review efforts, only minor hardware problems with no :,afety signincance were discovered. The underlying causes of the ident.fied denciencies have been addressed as well, and there is therefore co reason to expect a recurrence in the future of these quality assurance f tilures.
Many of Joint Intervenors' other charges are unsubstantiated. Myriad accusations in their 61ings lack any corroboration whatsoever, or the sup-port offered is of no value. We have addressed the most signi0 cant of the charges. Those remaining are so without merit as to warrant no dis-cussion, or they have not been presented in a cogent enough fashion to permit a response. In conclusion, except for matters that may involve 01 investigations, Joint intervenors have failed to meet their burden of showing the existence of a signincant safety issue warranting the reopen-ing of the record."
Joint Intervenors' November 8,1984, motion to reopen on construc-i tion quality assurance and management character and competence is denied. except insofar as it raises issues that may relate to matters under investigation by the NRC's OfGee of Investigations; to that extent, the motion is referred to the Commission. Joint intervenors' motion of the same date for a protective order is deniedas moot, it is so ORDERED.
FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board I
4
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h i
U in hght of thrs condusion. me need not decide er hunt lmersenort have samried the otner regmre-ment.s for reopemns ser rp 13 l4 and note 4. supre i
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Cite as 22 NRC 59 0985)
ALAB 813 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD 9
Administrative Judges:
e Alan S. Rosenthal, Chairman i
Thomas S. Moore i
Heward A. Wilber i
)
in the Matter of Docket Nos. 50-413-OL 50 414 OL DUKE POWER COMPANY, et al.
(Catawba Nuclear Station.
I Units 1 and 2)
July 26,1985 I
i The Appeal Board affirms three Licensing Board partial initial deci.
sions that together authorize full-power operation of the two-unit Cataw-ba facility, but leaves for resolution in a separate decision all questions pertaining to that part of the Licensing Board's authorization permitting the receipt and storage at Catawba of spent fuel generated at the appli-t cants' Oconee and McGuire facilities.
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ATOMIC ENERGY ACT: SAFETY FINDINGS Neither the Atomic Energy Act of 1954. as amended, nor the Com-i mission's implementing regulations mandate a demonstration of error-free construction. What they require is simply a finding of reasonable
[
assurance that, as built, the facility can and will be operated without en-t dangering the public health and safety. 42 U.S.C. {s 2133(d), 2232(a);
10 C.F.R. s 50.57(al(3)(i). See also Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343,346 (1983).
[
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ADJUDICATORY llEARINGS: SCOPE OF REVIEW in examining claims of quality assurance deficiencies. one must look to the implication of those deficiencies in terms of safe plant operation.
This inquiry necessitates careful consideration of whether all ascertained construction errors have been cured and whether there has been a break-down in quality assurance procedures of su0icient dimensions to raise legitimate doubt as to the overall integrity of the facility and its safety-related structures and components. Ibid.
RULES OF PRACTICE: BRIEFS The Commission's Rules of Practice require an appellant to identify clearly in its brief the errors of fact or law that are the subject of the appeal. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided.10 C.F.R. 2.762(d)(1).
RULES OF PRACTICE: BRIEFS A party's failure to submit a brief containing sufficient information and argument to allow the appellate tribunal to make an intelligent dis-position of the issues presented by its appeal is tantamount to their aban-donment. Duke Power Co. (Catawba Nuclear Station, Units I and 2),
ALAB-355,4 NRC 397,413 (1976).
RULES OF PRAC11CE: BRIEFS A mere reference in a brief to previously filed proposed findings of fact and conclusions of law without further illumination as to why the 4
proposed findings are correct will not suffice to show why a board's con-trary determination is erroneous.
RULES OF PRACTICE: APPELLATE REVIEW (SCHEDULING DECISIONS)
Because licensing boards must be vested with considerable latitude in determining the course of the proceedings which they are called upon to conduct, an appeal board will review licensing board scheduling ruimgs j
only to the extent necessary to insure that no party has been denied a fair opportunity to advance its cause. Southern Cahfornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB 212,7 AEC 986, 991 (1974). See also Public Semce Co. of Indiana (Marble liill 60 e
e
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A.-a a.3 J.4L 3-
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t Nuclear Generating Station, Units I and 2), ALAB-459,7 NRC 179 188 (1978).
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RULES OF PRACTICE: APPELLATE REVIEW l
l (CROSS-EXAMINATION RULINGS)
A mere showing that a licensing board erred by curtailing cross-i examination is not sufficient to warrant appellate relief. In addition, the 3
complaining party must demonstrate actual prejudice - i.e., that the ruling had a substantial effect on the outcome of the proceeding. Houston Lighting a Powr Co. (South Texas Project, Units I and 2), ALAB-799, 4
21 NRC 360,376-77 (1985), citing Long Island Lighting Co. (Shoreham l
~
Nuclear Power Station, Unit 1), ALAB-788, 20 - NRC 1102,1151 (l984). See also Louisiana Power and Light Co. (Waterford Steam Electric i
Station, Unit 3), ALAB-732,17 NRC 1076,1096 (1983); Southern Cali-fornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673,15 NRC 688, 697 L n.14, af]'d. CLI-82 II,15 NRC
]
1383 (1982).
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EMERGENCY PLANNING: FEMA FINDING (NEED FOR j
FINAL FINDINGS) 1 It is now well-settled that the issuance of the Federal Emergency
{
Management Agency's (FEM A) final findings on the adequacy of offsite j
emergency plans and preparedness is not a prerequisite to the authoriza-
{
tion of a full power operating license. Rather, preliminary FEM A j
reviews and interim findings are sufficient as long as such information j
permits the Licensing Board to conclude that ofTsite emergency pre-
]
paredness provides reasonable assurance that adequate protective meas-ures can and will be taken in the event of a radiological emergency.
Pac (/ic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-775,19 NRC 1361,1379 (1984), citingSouthern Cal (for-l
' nia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),
i ALAB-717,17 NRC 346,380 n.57 (1983); Cincinnati Gas & Electric Co.
}
(Wm.11. Zimmer Nuclear Power Station, Unit No.1), ALAB 727,17 l
NRC 760, 775 n.20 (1983). See also Detroit Edison Co. (Enrico Fermi j
Atomic Power Plant, Unit 2) ALAB 730,17 NRC 1057,1066 67 l
(1983).
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RULES OF PRACTICE: ADMISSlHILITY OF CONTENTIONS A licensing board is retjuired to consider all fise factors speciGed in 10 C.F.R. 2.714(a)(1) before admitting a late contention, even if the con-tention is based on previously unavailable information. Duac Power Co.
(Catawba Nuclear Station, Units I and 2), CLi-83-19,17 NRC 1041, 1045 (1983).
ATOMIC ENERGY ACT: RIGitT TO A ilEARING Section 189a of the Atomic Energy Act does not provide members of the public with an unqualiGed right to a hearing. Rather, the Act permits the establishment of reasonable threshold requirements for the admis-sion of contentions to NRC licensing proceedings. Id. at 1045-47.
RULES OF PRACTICE: LITIGAHILITY OF ISSUES The Commission has provided by rule that neither need-for power nor Gnancial quali0 cations questions are to be explored in certain operat.
ing license proceedings. See 10 C.F.R. SI.106(c) (need for power); 10 C.F.R. 2.104(c)(4), as amended elTective October 12,1984, 49 Fed.
Reg. 35,747, 35,752, as corrected, 49 Fed. Reg. 36,631 (1984) (financial qualifications).
RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS In meeting factor three of 10 C.F.R. 2.714(a)(1) for late Gled conten-tions, a bare assertion of the past effectiveness of a party's participation in proceedings, unsupported by specine information from which a board could draw an informed inference that the party can and will make a valuable contribution on a particular issue in the proceeding, will not sufGce. See Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167.1181 (1983); Mississippi Power a Light Co. (Grand Gulf Nuclear Station, Units I and 2),
ALAB-704,16 NRC 1725,1730 (1982),
RULEMAKING: EFFECT ON ADJUDICATION I
An appeal board as required on appeal of a licensing board decision to apply the Commission's regulations in effect at the time of the appeal.
. Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, 1
Units I and 2), ALAB-218,8 AEC 79,82-83 (1974).
61
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TECHNICAL ISSUE DISCUSSED:
1 1
Intergranular Stress Corrosion Cracking (IGSCC).
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APPEARANCES I
j Rsbert Guild, Columbia, South Carolina, for the intervenor Palmetto l
Alliance (with whom Jesse L. Riley, Charlotte, North Carolina, t
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was on the brief for the intervenor Carolina Environmental Study I
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Group).
f l
J. Michael McGarry, III, Washington, D.C. (with whom Anne W. Cot.
tingham and Mark S. Calsert, Washington, D.C., and Albert V.
i Carr, Jr., Charlotte, North Carolina, were on the bricD, for the i
applicants Duke Power Company, et al George E. Johnson for the Nuclear Regulatory Commission staff.
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DECISION
?
}
Before us are the consolidated appeals of intervenors Palmetto Alli-ance and Carolina Environmental Study Group from three Licensing Board partial initial decisions issued in this operating license proceeding l
- l involving the two unit Catawba Nuclear Station located in York County, I
South Carolina. To the extent here pertinent, the Grst of these decisions i
resolved in the applicants' favor numerous quality assurance issues raised by the intervenors.8 In the second decision, the Licensing Board approved the applicants' emergency response plans subject to the fulfill-ment of certain imposed conditions within a specified time.2 Finally, the l
third decision focused upon a relatively narrow quality assurance issue l
over which the Licensing Board had retained jurisdiction in the first deci-l i
(
t j
l LBP.44-24.19 NRC 1418 (1984) As emplo,ed m our decision, the term " quality assurance" en.
compaues "quahiy ccmrol' as well kr 10 C F R. Part 50. Appendit B, Intrmfuction 2L8P 84-37. 20 NRC 933 (1944L while of no operati,e segmfsance here me note in paums that j
this decision was rendered by a d.lferent Licensmg Board specially consened for the purpose of hearms j
and determinmg the emergency ptanmng issues alone The transcnpt of that heanng will be referred to in this opimon as *LP Tr. to distmguish et from the separaiety numbered usasenpt of the hearing on all other issues PTr ')
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sion.5 This issue al30 was resolved in the applicants' favor and the third decision concluded with an authorization for the Director of Nuclear Reactor Regulation (NRR) to allow full-power operation of the Catawba facility once the applicants satisfy the conditions previously imposed by the Board.'
In their brief and at oral argument, the intenenors advanced myriad claims of substantive and procedural error addressed to the three partial initial decisions and several interlocutory rulings as well.5 Upon full con-sideration of these claims, we conclude that there is no warrant for up-setting the authorization of full-power Catawba operation. We leave for resolution in a separate decision, however, all questions pertaining to that part of the Licensing Board's authorization to the NRR Director permitting the receipt and storage at Catawba of spent fuel generated at the applicant Duke Power Company's Oconee and McGuire nuclear power facilities.*
I.
QUALITY ASSURANCE A condition precedent to the issuance of an operating license for a nuclear power facility is a finding that there is reasonable assurance that the facility has been properly constructed and can be operated without l
endangering the public health and safety.7 To this end, a utility that is constructing such a facility must establish and carry out a quality assur-ance program designed to provide " adequate confidence" that those sys-tems, structures and components having safety-related functions "will perform satisfactorily in service."'
Before the Licensing Board, the intervenors maintained that there were "systematie deficiencies in plant construction" and " company pres-sure to approve faulty workmanship," preventing a finding that the plant can safely operate.'This contention brought under scrutiny the suf-J LBP44 52,20 SRC 1484 0984). Characiemed as "forerr.an overrwie." the issue grew out o tions that welders had been matruded by foremen to do their worti m a manner contraq to prtwribed j
prnredures or sound welding practices.
- /d at 1507 In the first decision, the Board had authomed the NRR oirector to mue a licerHe pe t
l mutmg toe-power testmg (up to rive percent orrated power) of Unit 1. LBP 84 24,19 NRC at 1585.
5
'1 A separate timely notwe of appeal was filed rrom each partial missal deosson. On the moton ofinter.
i venors, howeser, all brierms was held in abeyance to sesit the rendation of the last decmon thus, the miervenors, applants and NRC stafr each rded a smgle brier.
6 These questsons were the subject or supplemental memoranda and oral argument.
f 10 C F R. 50 57(a).
8 10 C F R. Part 50. Appendis B. Introducten. That Appendia contams the sencral quahiy anurarwe critena for nuclear power plants.
'See LBP-82107A. le NRC 1791. 1795 0 982).
t 64 1
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ficiency of the applicants' quality assurance program. That scrutiny in turn, was governed by our Callaway decision. As there observed, 1
i-liln any project esen remotely approaching in magnitude and complenty the crec-tion of a nuclear power plant, there inevitably will be some construction defects tied to quality assurance lapses. It would therefore be totally unreasonable to hmge the grant of an NRC operaung hcense upon a demonstration of error-free construcuon.
Nor is such aJesult mandated by either the Atomic Energy Act of 1954, as amend-ed, or the Commission's implementing regulauons. What they require is simply a findmg of reasonable assurance that, as built, the facabty can and will be operated without endangering the pubuc health and safety. 42 U.S.C. st 2133(d),2232(ah 10
[
C.F.R. 4 50.57(aH3Hi). Thus, m examining claims of quality assurance deficiencies, one must look to the imrlscation of those deficiencies m terms of safe plant operation.
Obviously, this mquiry necessitates careful consideration of whether all ascer-tained construction errors have been cured. Even if this is establistled to be the case, however, there may remam a quesuon whether there has been a breakdown in quality assurance procedures of sufTacient dimenuons to raise legitimate doubt as i
to the oserall mtegruy of the facility and its safety-related structures and compo-nents. A demonstration of a pervasive failure to carry out the quality assurance pro-gram might well stand in the way of the requisite safety findmg.H l
1 Applying those principles, the Licensing Board found that, although there were some quality assurance deficiencies, they did not amount to a 1
pervasive breakdown in Catawba *s quality assurance program.n Further;
}
in its principal quality assurance decision, the, Board found that, with j
very few exceptions, the applicants had taken " reasonably prompt action j
to correct confirmed de6ciencies" and that all significant technical dis-crepancies had already been or were being corrected."
On appeal, the intervenors attack the Licensing Board's substantive conclusions and also argue that, by virtue of various interlocutory rut-ings, they were unfairly denied the opportunity to deselop fully their quality assurance claims.
A.
In their brief, the intervenors maintain that "known, yet uncor-rected construction defects" exist at Catawba and that there have been
" systematic and willful circumventions" of quality assurance require-ments. These are indeed serious claims. But that is all they are -
claims. The brief does not refer us to any evidence of record that might i
35Ormn On trar Co. (Caitaeat Plant, t'mt I), AL AB.740,18 NRC 34) (19AJL ll 14 at 346 (footnote omitted)
U L8P 24-24.19 NRC at 143).14.1440 0 /J at 1505. In its later decuson on " foreman cierride." the Board at leau imphotly determmed that no ascertained safety-sign,6 cam defects had gone uncorrected LBP44 52,20 NRC at 1502-06.1507 14 Bnef of Appellants Palmetto Anience and Carchna Lnuronmental study Group (Jan 9.19til lhereafter "intersenori Bnef7 at 5. 6 65 l
-. ~ _ -,
support these broad assertions." In the circumstances, we need not, and will not, pursue them further.
As for their remaining substantive quality assurance claims, the inter-venors assert that, because the quality assurance inspectors at Catawba lacked sufficient independence from production and cost pressures, they could not be relied upon to assure proper plant construction and may have overlooked certain construction deficiencies. We are told that this asserted lack ofindependence is reflected by (1) widespread harassment against quality assurance inspectors by production workers, and retalia.
tory acts by construction management against those inspectors for prop-crly carrying out their insrection functions, and Q) the organizational relatiocship between the quality assurance personnel and thq. Construc-tion Department management." Our examination of this line of argu-ment persuades us that the inter enors have done no more than rehearse claims advanced before and rejected by the Board below, with-out directing our attention to supporting record >.vidence.
1.
At the hearing, the Licensing Board expiored averments that con-struction management personnel had retaliated against welding inspec-tors for voicing grievances, expressing concerns to this agency, and con-ducting strict inspections. The Board also examined allegations that welding inspectors were harassed by craftsmen and forem, n whose work a
they were examining.
As to the first claim, the Board found that one weldmg inspector (Mr.
Ross) had sufTered retaliation at the hands of management. lie had re-ceived a low job evaluation because he and his crew had adhered strictly to quality assurance procedures and had expressed safety cone;rns to management.I' But, according to the Board, this apparently was an isolat-ed episode and Mr. Ross and his crew had not allowed it to affect their job performance."Similarly, the Board determined that considering th e
88 At ural argument. miervenors asserted that there may be uncorrected defects m piperts and other t
components resulung rrom "are sinkmg* (the madsettent sinkmg or a weldmg electrode agamst an j
unintended part or a cornponend or Nold sprmgms' (the practice of absmng by force pipes to be joined together) App Tv 14.l8. Their counsel failed, howeser to ate any specifk defects that were g
not property remedied On the contrary, he conceded that he could not " state as a matter or ract that I
any or those [referrms to weldirrg defects not idenbried in the normal course of the apphcants' quaht
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assurance programl remain urmrected as of this date " App. f r 19 l* The Commission's Rates or Pract ce require an appellant to identiry clearty m its brier the error
{
fact or law that are the subsect or the appeal. For each issue appeated, the prettse portion of the rec rehed upon in suprort or the anert on or error must also be prouded " 10 C.F R. 2.762(dillL some hme ago, in the construction permet pro 6eedmg mvolving this very fachty, me emnted out that "a party's failure to submit a bner contammg sufficent mformaten and argument to allow the appellaie tnbunal to make en mielbgent disponetson or the issues (presented by its appeal] is tantamount to their abandonment." AL AB.355,4 NRC 397. 413 (1976L U intervenors' Bnerat 9 83.
18 LBP44 24,19 Nit C at 1443 42, 1513 20 H /4 at 1518 n.27,1519 20 66
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size and duration of the construction project, the number of significant i
incidents of harassment against the welding inspectors was small. Addi-l tionally, none of the inspectors had been deterred from the fulfillment of their duties by such incidents.28 l
If these findings have adequate record support, it follows that the Board below wasjustified in concluding that the carrying out of the quali-ty assurance program for welding activities was not seriously affected by retaliation against or harassment of diligent inspectors.2' But in their brief, the intersenors point to no evidence demonstrating that there was a pattern of retaliation or harassment that had an intimidating elTect upon the inspectors. They seemingly are content to leave it to us to con-duct an independent examination of the testimony of the inspectors. Al-l though we are under no obligation to do so,22 our examination of the i
record confirms that the Licensing Board accurately summarized the tes-timony, with the consequence that its determination on this matter must be upheld.23 2.
Illstorically, applicant Duke's Vice President for Engineering and Construction served also as the company's Quality Assurance Manager.24 Some years ago, in the construction permit proceeding involving another Duke nuclear facility, we questioned whether this arrangement con-formed to the requirements of Appendix B to 10 C.F.R. Part 50.25 As a consequence, in 1974, prior to the issuance of a construction permit for Catawba, Duke appointed a separate quality assurance manager.2* Since that time, Duke's Construction and Quality Assurance Departments have been headed by separate independent managers, who report to a j
single high-level executive.27 Until 1981, however, the quality assurance inspectors still were located " administratively" in the Construction Department, albeit subject en the " functional" control of the Quality 20 /t at 1444. !531 21 M at!$20.153t 22 w toms,,, pm.,, a tere C, eg aterfo,d steam Liectric stauon. Umt 3). AL AB 812. 22 N RC 5 54 (19857 PMgJr&As lhtra-co (Lemergh Generating saatson. Omts I and 2). ALAB 804 21 NRC 507,592 & n 6 (19854 23.Ser. r p. with rew L t4L eetalianon. Tr 5930 31 (Burri, 6343 (Rock %ott), and with respect to harassinent. Tr. 58uo (Deuioni.6883 84 (Lanstep. 8307-08 (Godfrey). 8428 (crnp) 8685-86 (Reept it should be noted that iescral inspectors tesufied that they did not beleetc that any other melding inspectors had been deterred from performing adequately as a result of incwients of harassment. Tr.
6314-15 ( Roskhotts. 6965 t Roul. 8428 (Crnps,8308 (Godfrey) 24 LBP 84 24.19 SRC at 1459 25W DuAr foure Co. Iw siliam B McGuire Nuclear station. Omts I & 2). ALAB 128,6 ALC 399 410 (1973) 26 LBP-84 24.19 NRC at 1459 2'I M 67 i
Assurance Manager." In 19el, those inspectors were transferred to the Quality Assurance Department, which assumed control over them for all purposes.2*
The proprieiy of the quality assurance organizational structure in place between 1974 and 1981 was htigated and resolsed in favor of the appli-cants in the construction permit proceeding for the Catawba facility."
Nonetheless, the intervenors argued below that the quality assurance personnel did not enjoy su0iciem mdependence vis-aais the Construc-tion Departmert - i.e-,11at the power to cont:ol the inspectors was inherent in the Construction Department's power to hire, fire, set schedules, etc. In response, the Licensing Daard stated:
As a matter of pricticai experies ce, we thmit there is some merit in this claim. Fur-thermore, we beliese that the Q \\ ru1ction at Catawba wc aid have been performed somewhat more itdependently i'the present org.marational structure had obtamed throughout constr6ction, We also behese, ho *cser, that the etTect of the functionai-admmistratne dichotomy on mspector performance cannot be quantitled but prob,s-r bly was not sery gicat. In any esent, that scry J4hotomy had at least the implied bicssms of this agency m the CP,troceedmg. LBP-75-34, su,v.s. I S RC at 649,650.
in thest circumstances, absent a howing that safety was com,romned a showmg not made here, we can only regret that the dic'totomy was not abolsshed earker than it was.31 Although dissatisfied with th s outcome, the intervenors call no specif-ic record evidence to our attention that suggests that safety was compro-mised as a result of the historical position of the quality assurance per-sonnel within Duke's overall organizational structure. This being so, we see no cause to disturb the Board's conclusicn.
3.
Criterion V in Appendix B to 10 C F.R. Part 50 provides that
"[alctivities affecting quality shall be prescribed by documented instruc-tions, procedures, or drawings, of a type appropriate to the circumstances and shall be accomplished in accordance wit'i these instructions, proce-dures, or drawings." Criterion A Vil specifies that "[slufficient records shall be maintained to furnish evidence of activities alTecting quality."
To comply with these requirements, the applicants instituted a system of documentation that utilized, among others, a Deficiency Report J
28 16a/ The "admmistrative
- control by the Cor struction Depenment over the inspectors covered per-sonnel matters such as inrekeeping and payroll, he authorny to hre arkt rire, and. apparently, at least md; rect authorny to whedule daily wort /d as 145940 The "runc sonar
- comrol cuercised by the Qual-sty Assurance 4 tanager mcluded technical and pc hey direction, tramseg and certsrnation or mspectors, and estabhthmem of quahty assurarice prcwedures. /d at 1460.
29It at 1459 38 LBP.75-34. I NRC 626,546-30 (1975) The miervenors dal not nclude the quality auurance orsam ration issue m incir appeal rrom that Jecmcm See ALAB.355. 4 NRC 397 41976L 31 LBP44-24.19 NRC at 1460.
6 11
9 Form (R-2A) and a Nonconforming item ' Report (NCD. The R-2A is used to document minor discrepancies where technical construction per-sonnel prescribe the corrective action to be taken but quality assurance personnel must approve the corrected work. For its part, the NCI is em-ployed when the discrepancy is more significant and not readily resolved by an R-2A or other method."
At the hearing below, the Licensmg Board considered the intervenors' charge that the practice of "serbal voiding" - i.e., the return of an NCI to the originator quahty assurance inspector with an oral explanation rather than its incorporation into permanent records - was beint, uti-lized for the purpose of circumventing the critical document require-ments reflected in the specific provisions of Duke's own quality assur-f ance program." The evidence on the matter persuaded the Board that, i
while there had been instances of verbal voiding, "[ slo few NCis were handled in this manner in relation to the number originated that it could not have serscJ to conceal faulty workmanship or significantly diminish the number of nonconformances that were dcsumented."24 Beyond a sweeping assertion that the Licensing Board manifested "a disturbing casualness for strict adherence to the Commission's clear quality assurance requirements," we are not told specifically what is wrong with that analysis." Nor has our independent look at the evidence provided us with cause to upset the Licensing Board's rejection of the in-i tervenors' position on the documentation question. In this connection, apart from the relatise paucity of NCis that were verbally voided (over 17,000 NCis were prepared by quality assurance personnel), the evi-dence disclosed that the NCI procedure was but one of several available meaas of recording discrepancies. It also showed that Duke's Quality Assurance Department (in the estimation of an NRC Resident inspector at Catawba) had documented " thousands" of quality assurance deficien-cies on several other forms.2*
4 During the initial hearings below on quality assurance, a Board witness testified that there had been. occasions where the foremen had ordered welders to perform work "in a manner contrary to prescribed i
32/d at 1480
' 33 g. sg 979 39
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34 /d. at 1484-85 D ntersenors' Brief ai 24 I
36 Tr 9777 79 (van ()oornt in their arpellate 8cief. the <nierverors atso menimn the use by welding mspectors of "blak tmons" (apturently a personal work diar)) mstead of quahiy assurance forms to dMument the sursediance or mendmg acimties On this ur 't as welf. the emersenors fail to emplairi ade-quately wh) thts prmwe const*tuted a persasese quality as.urance breakdown such an esplanation was plainly en order, given the NRC Resident inspettor's teste iony chai che fvture io use the forms was nu
. a senous violation ir 9298.
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procedures or to the welder's ideas of correct welding."" This testimony prompted intestigations of the so-called " foreman override" practice by both the stalT and (at the stalTs request) the apphcants. The fruits of the investigations, which in the applicants' case insolved the receipt of af-fidavits from over 200 Duke employees, were considered in-a separate hearing where a number of present and former Duke employees testi-fled. In its November 1984 decision, the Board found that there had been only isolated ir. stances of foreman override involving violations of quality assurance or construction procedures, and that these had not compromised plant safety.38 In this connection, the Board pointed out that only eight of the hundreds of fordmen at the site had engaged in the practice, and fise of them were involved in a single incident. Moreover, the foreman involved in most of the override incidents as well as his su-perior had been relieved of supervisory responsibilities at the site.
We have examined the assigned bases for the intervenors' insistence that the foreman override practice was more pervasive and safety-significant than found by the Licensing Board. None of those bases is meritorious.
To begin with, the record does not support the intervenors' claim that twenty-three foremen were involved in the practice. On this score, we agree with the Licensing Board's analysis of the evidence on the matter," which has not been shown by intervenors to be faulty.
Second, there is no substance to the intervenors' argument that the l
true extent and significance of foreman override will never be known be-cause the stafT delegated its inspection responsibility to the ' applicants.
e Prior to requesting the applicants to undertake an investigation of the foreman override concerns, the staff conducted its own extensive in-vestigation.45 Moreover, the staff closely monitored the applicants' in-vestigation. Such monitoring included visits to the site to make sure that the proper atmosphere was maintained, and staff interviews of both the applicants' interviewers and some of the individuals from whom the ap-plicants had obtained affidavits.n Staff witnesses also testified that, based on their own investigation as well as their review of the results of ^
the applicants' investigation, foreman override was not a pervasive prac-tice."
s 37LBP 84-24.19 NRC si 1562.
JS LBP-84 52,20NRC as i507.
J' /4. at 1502,1507.
- Id. si 150142.
43 Sec. < g. Tr. 13.882-83. b,911 12 (Uryct 42 Tr.13.848 50,13,865-te (Uryw, Blaket 4 Tr 13.883 (Urys, Blaket 3.91213 (Uryct 70 j
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Third, the intervenors also claim that there were serious methodologi-cal Daws in the applicants' investigation. Specifically, they allege that the applicants'. interviews with only a small percentage of the power house mechanics, electricians and steel workers provide no basis for drawing any general conclusion that foreman override was not a problem. Fur-ther, according to the intervenors, the questions posed to the workers sought "high risk" information that, if supplied, might adversely affect them. For this reason, and because the questioners were employed by Du ke,+4 the intervenors maintain that the reliability of the inquiry was compromised.
These arguments are not new; they were presented to and rejected by the Licensing Board.*5 The intervenors.do not explicitly address the j
reasoning underlying that rejection. Rather, they merely refer us to the i
proposed Gndings of fact and conclusions oflaw submitted below.
I This will not do. All that the reference tells us is that the intervenors disagree with the Licensing Board's 6ndings; it provides no illumination as to why the proposed findings are correct, as claimed, and the Licens-iag Board's determination is wrong. Nonetheless, we have reviewed the record on our own initiative and are satis 0ed that the intervenors' attack e
upon the applicants' investigation is wide of the mark. Each of the inter-venors' allegations was rebutted by applicants' expert witness, Dr. John E. Ilunter. lie testified that, based on the sample of nonwelders inter-viewed, the applicants properly inferred that instances of foreman over-ride were rare outside of the welding area." Dr. liunter also stated that the questions asked were appropriately phrased so as to elicit the neces-sary information. Further, he expressed the opinion that the reliability 4
of the investigation was not affected by the fact that Duke personnel conducted the interviews and sought the disclosure of"high-risk" infor-mation. As he pointed out, the interviewers were not in a position of 4
power relative to the interviewees, but were from an " external depart-ment" and in other situations had served in an " ombudsman role for worker grievances."** Moreover, Dr. Ilunter stated that revealing an in-stance of foreman override would have had adverse implications only 44 More particularty, it appears that they mere employee reimons personnel Applwants' Enh lle, j
Duke Power Comp.eny s insewgaaon of issues Rawd by the NRC staff an tribrection Reports 50 413/
C4-31 and 50-414/84-17 imdmitted ai rr 13.144) at 10 45 LBP-84 52.20 NRC at 14494
- Tr.14.340-49 47 Tr.14.311 12.14.327 32 1
48Applwants' Eth 120. Temmory or Dr John L. Hunter (admitted ai Tr 14.295) at 4 71 l
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for the foreman, not the craftsman who had been simply following or-ders.**
i-inally, intervenors take issue with the Licensing Boasd's disposition of the matter of the welding of stainless steel piping in derogatic,a of es-tablished procedures. In order to lessen the likelihood that the heat-alTected zone er tainless steel welds would become sensitized and, thus, s
made potentially susceptible to intergranular stress corrosion cracking, Duke procedures specify that welds should cool to 350*F between weld-ing passes.*' Numetous welder allegations ofinterpass temperature viola-tions surfaced during the stalTs and the applicants' investigations of foreman override concerns. The applicants thereupon undertook labora-tory and field tests to determine whether welds had become sensitized as a result of these alleged violations. Although the results of these tests were inconclusive, the Board concluded that violations ofinterpass tem-pelatuic requirements had not significantly affected the quality of con-struction."
We find that the c6lence in the record supports this conclusion. Wit-nesses for the applicants and the staff testified without contradiction that, in order for intergranular stress corrosion cracking to occur, sensi-tization of the' metal alone is insullicient Rather, there must also be i
stress and a sufficiently aggressive environment." While sensitization I
and stress may be present at Catawba, these witnesses agreed that the safety related welds that may have been exposed to high interpass tem-peratures are not associated with such an environment. This is because those welds are on components of the primary cooling system. That system normally handles only noncorrosive fluids and it is very unlikely that any contaminant will be introduced into the system." Therefore, even if excess interpass temperatures occurred, intergranular stress cor-rosion cracking is not expected to result at Cata.wba, and there is rea-sonable assurance that the welds will remain safe in service.
l B.
We now turn tc the ;ntmenun' esertions of procedural error in cunnection with the quality assurance issues. They maintain that the
- /04 Dr. Humer's tesumony was corroborated by the testimony or several interuences to the elTect g,
that thry het* net fair entimidated of pressured dunns the internees. see, e s.. Tr 14.042. 14.222 23 tCarpenser), 14.142 4) (McCaiu, 14.187 88 t Brasweto.
SO Applicants' Enh. Il6, Attachment A at 1.$
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SI L BP-84 52,20 NRC at 1506.
" h..... To iLA, U ciuoni, 6 Jyu t (Czaskowshd.
D fr.13.60914 (Ferdon, Kruse), 11.90749 (Ciaikowdd Thew witnesws tesuried that pressunted water reacinri.. such as t'aiswhe. tend not to have stress corrosion cracking in the pnmary sysiem due to osygen suppresnon They abo un.,%J u.at simt contross at Catawbe keep contaminant leveis below that at whnh intergranular strecurrowm cracking would ottur 54 Tr. l).bu'*44 eterecn, Kr.nes, 13.8 73.13.909 (Ciaikowskis.
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Board was unduly influenced by the applicants' projected fuel loadmg dates and their plans for commencement of plant operation. As a conse-quence, according to the intervenors, the Board improperly limited (1) their right to conduct discovery, (2) the length of time that was allotted to them for the cross-examination of witnesses, and (3) the number of witnesses that could testify on their behalf.
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lt does appear that, in accordance with the Commission's 1981 State-ment of Policy on Conduct of Licensing Proceedings," the Licensing Board kept a watchful eye upon applicants' construction schedule.5+ At the same time, howeser, the intervenors have not estabhshed that, con-trary to the further directive in that Policy Statement," the Board "com-promiseld} the Commission's fundamental commitment to a fair and thorough hearing process.
l.
In a March 5,1982 order, the Licensing Board conditionally ad-mitted the intervenors' quality assurance contention and indicated that discovery on it could commence.58 Two and one-half months later, be-cause of a challenge to the admission of this contention (among others),
the Board suspended d;scovery activities." On December 1,1982, the
' Board admi!!cd a r.,.2d scrdon of the quality assurance contention and reopened discovery.*')
Later that month, the B6ard announced its expectation that the evi-dentiary hearing on the various contentions before it would commence the following fall." In this connection, the parties were asked to submit
" detailed proposed schedules leading to a hearing.
"" Both the appli-cants and the staff complied with that request; the intervenors did not (although, at a January 20,1983 prehearing conference, they objected to looking to the applicants' anticipated plant completion date in determin-ing the hearing schedule)." On February 2,1983, the Board directed that discovery would end on May 20, 1983, and the hearing would be held that October.**
i "CLi-8f R.13 NRC 452 56 Ser. e t Tr 659-61. 701 42, 11,218 Memorandum and order or June 13.1983 (unpubbshed8 at 4 57 13 NRC at 453 58 LBP-8216. IS N RC 566, SM. 591 MMemorandum and Order of May 25.1982tunpubbshedt $ceeho LHP-82 51,16 NRC 167.178 79 (1982)
- LBP.82107A. M NRC at 1795. 1810 in the mterim. for reawms urnmportant here, me reversed the condinonal admmeori of the amervenors' metaal quaho enurance contentmn AL AB-687,16 NR(' 460 f1982), revd m pwrr og other trewm/t CLi 8319.17 NRC 1041 (1983L el LHP 82.fl6.16 NRC 1937. l95311982) -
61lbut
- ) Memorandum and Order of February J. s983 (unpubhsheds ai 6-7.10 6a fj,, l l 73
)
As thus seen, between Alarch 1982 and Afay 1983, the intervenors had a total of over seven months to conduct discosery on their quality assurance wncerns. Storeover, after the close of discovery in Stay 1983, the Board granted the intervenors an additional twenty-five day period in which to take the depositions of Duke and NRC employees on certain welding quality assurance matters that the intervenors maintained had Orst come to their attention late in discosery.e To be sure, the interve-nors had desired a longer discovery period, as well as a later hearing date.66 And it may be, as they suggest, that their requests for that relief would have fallen on more sympathetic ears had not construction of the facility seemingly been so close to completion. But ofitself that consider-ation scarcely provides a sullicient basis for overturning the Board's dis-covery orders.
As we long ago observed, " licensing boards must be vested with con-siderable latitude in determining the course of the proceedings which they are called upon to conduct."67 Consequently, "we are entirely disin-i clined to assume the role of a post hoc overseer of the discharge by licensing boards of their scheduling functions land) will enter that arena.
only to the extent necessary to insure that no party has been denied a fair opportunity to advance its cause."68 Accordingly, it was incumbent upon the intervenors to demonstrate that the discosery period accorded to them was so inadequate as to deprive them of procedural due process.
This burden manifestly has not been met. In short, despite considerable rhetoric on the subject of deprivation of hearing rights, the intervenors do not explain why the eight months of allowed discovery (almost two-thirds of which followed the admission of the revised contention) was in; sufficient to obtain the information necessary to flesh out their quality assurance concerns.6' 61 Memorandum and order of June 13 66 See Palmetto Albance Motion to E.stablish thwovery %e>='M9 en l's Quahty Assurance Contention 6 (May 25.1983) at 15 and Attachment 1 67 Southere Cs/vocaar Edison Co. (san Onofre Nuclear Generatms tainen. (Jmts 2 and 38. AL AB 212.
s 7 AEC 986,991 (19741
{
6e / bat. Src che fuNr Servar Co of Indiano (Marble Hill Nuctear Generatirig Station. (! nits I and 27, x
ALAB 459. 7 NRC 179,188 (1978) ("tw)e emer the shedulms thicket.. only to enteriam a claim that a baard abuted its descretion by setting a heanns schedule that dernves a party or its right to pro.
I cedural due process.').
j After the staff and the apphcants submitted their reports on the toreman override issue Escr pp.
69 69 70. supre). the intervenors moved for leave to conduct discovery on that inwe. Moteort by Palmetto Albarxe and Carolma Environmemal study Group for the Conduct of further t'rn eedings to Consider s
Evidence or Foreman overnde tsept 17.1984). Tbe Board gramed a hmiteJ pened for suct) discovery.
>s which was geared to the heanns schedule estabbshed at We s mc time. rr 12.840-53. Ahhough interve.
nors complain to us that the allotted pennd was inadequate. they told she Litensmg Board that, while they were not happy eith it, the dmovery /heanns erHLar seemed doabte ' Tr. 12,910 11. Itaving ac-(Coeunnett) 4 74 i
l
2.
The quality assurance hearings commenced on October 4,1983.
The first of six panels of applicant witnesses took the stand the following day'* and, after a short direct examination, was made available for cross-examination by the intervenors.75 That cross-examination consumed the balance of that day and all of October 6.
After the luncheon recess on October 7, the intervenors commenced cross-examination of the second panel, which consisted of the two mem-bers of the first panel and two additional individuals.72 When this cross-examination had extended for over two hearing days, the Board stepped in and advised the intervenors' counsel that his cross-examination had j
to be concluded by noon the following day.7)
Counsel observed this deadline. The Board then expressed its concern respecting the length of time the intervenors might take in examining the remaining witnesses (both those testifying in panels and those weld-ing inspectors and supervisors testifying individually).7* After hearing from the parties, the Board adopted a " flexible" schedule. Under that j
schedule, the intervenors were given approximately two days to interro-gate each of the remaining panels, with the understanding that the dead-lines would not necessarily be rigidly enforced.75 As it turned out, the in-I tervenors finished the questioning of those witnesses within the allotted i
time.4 Insofar as the individual witnesses are concerned, the intervenors were permitted to cross-examine all fifteen of the welding inspectors l
and supervisors who testified. On appeal, they cite one specific instance
{
in which that examination was cut short by the Board. They do not ex-plain, however, why the Board was wrong in coriciuding that three and one-half hours was a reasonable period for the interrogation of the inspector in question." Nor do they provide illumination on what might i
k quiesced in the schedule. the) may not now claim the Board below erred en adoptmg it. In any event, we are satisfied that it did not offend due proten.
We likewise conclude that the Board did not abuse sts broad discrcison m the conduct of the proceed-ing when it decimed in Denmber 1983 to reopen discovery in the make of it) the assuance of the Insts-tute or Nuclear Power Operations report. which contamed the results of the applicants' self-initiated escluation of Cata=W s construction program (in camera Tr. 948 51) and (2) the tesiimony of cenam in camera Board memesses (Tr. 11.217 21). surr.ce n to say that we have emam ned the reasons augned by the I scensing Board for its rultngs m this regard and fmd them adequate.
The miersenors' other dncosery comptamis hase been considered and found without merit.
70 Tr.1888.
'l Tr.1917.
72 Tr. 2310.
73 Tr. 281316 74 Tr '2839-42.
75Tr. 3744-52.
79 See Tr. 5715-16.
77 Tr.6086.
75 1
i k
u
have been elicited from the inspector had they been allowed to examine him at still greater length.
These shortcomings are dispositive of intervenors' cross-examination claims. As we had occasion to reemphasize earlier this year, a showing that the Licensing Board erred by curtailing cross-examination "is not sufficient to warrant appellate relief." In addition, "[tlhe complaining party must demonstrate actual prejudice - i.e., that the ruling had a sub.
stantial effect on the outcome of the proceeding."
3.
The intervenors initially proposed to call sixty employee witnesses to testify at the hearing a year later on the foreman oserride issue. The Licensing Board ordered the list reduced to fifteen on the ground that the testimony of any larger number would be " cumulative."" Although the intervenors do not appear specifically to challenge that action, they do complain that only five of these witnesses actually testified. Contrary to the impression that they endeavor to leave, however, we find nothing-in the record to indicate that the Board refused to allow them to present more than five witnesses. Nor does the record reDect the intervenors' re-quired proffer of testimony setting forth the substance of each witness's proposed testimony.80 If, in fact, they did olTer a witness whom the Board declined to permit to testify, it was incumbent upon the interve-nors - at bare minimum - to say so explicitly in their brief and to inform us respecting (1) which witness or witnesses were not allowed to testify; (2) the reasons assigned by the Board; and O) the substance of the precluded testimony. Itaving been provided none of this informa-l tion, we need not pursue the matter further.
I
- 11. EMERGENCY PLANNING In LBP-84-37, the Licensing Board examined in considerable detail the numerous contentions advanced by the intervenors with respect to the sufficiency of the emergency response planning for the Catawba facility. On the basis of that examination, the Board concluded that the emergency response plans meet all regulatory requirements and provide J
" reasonable assurance that adequate protective measures can and will be 78 #eustos Lehrnr 4 Powr Co. (south Texas Prov. Unas I and 2). ALAB.799. 21 NRC 300, 376-77 (1985). rems Loss Island Lrr4rms Co. (shoreham Nuclear Power stauon Unn O. ALAB-788 i
20 NRC !!O2.1151 (1984). See also Leursmaa Powr and Lehr Ce tw terrord steam Electne stauon.
a Unit 3). AL AB-732,17 NRC 1076,1096 (1983). Southers Cal (orne Ed<soe Co. (san onofre Nuclear Generaung stanon. Unas 2 and 3). ALAB-673.15 NRC 688. 697 & n.i4. s/fd. CL1-82 il, !$ NRC 1383 (1982L j _:,
MTr.13.30647.
soScr note 78, supra, s
i i
76 f
I
~.
t.
taken in the event of a radiological emergency."8' Before us, the interve-nors challenge only the Licensing Board's findings respecting the sirens that are a part of the applicants' public alert and notification systems. On that score, the Licensing Board found that the alert system would prove adequate with the inclusion of ten additional sirens.82 The intervenors insist, however, that such a finding cannot be made in advance of the final review of the system by the Federal Emergency hianagement Agency (FEhl A).8)
A.
The ~ applicants' principal witness on the siren question was Dr.
i bl. Reada Bassiouni, a mechanical engineer who has specialized in the field of acoustics and bas conducted analyses of the sirens associated
}
with the emergency response planning of several other nuclear power i
faci!nPs." He testified that, at the applicants' behest, he first made I
acoustical measurements of selected sirens in operation. Then incor-porating those measurements in an analytic model of the entire siren system, he ascertained that, with the addition of ten sirens at specified locations, the system would meet the FEh1A criteria for alerting the public to a radiological emergency. The significance of that assessment is that FEh1 A will use these same criteria in making its final finding on the adequacy of the sirens."
i The FENIA criteria do not require that the sirens reach every person in the plume EPZ - a practical impossibility.8* (Similarly, and for the same reason, there is no NRC requirement along that line.)"To supple-ment the siren system, the applicants have provided tone alert radios for such institutions as schools, hospitals, nursing homes, day care centers 88 20 NRC at 1007 The Board did, ho eser, impose two addinonal emergency planning condiuons upon the operaurg licenses.14. At 1004 82 /d. at 978 53 FEM A has gnen condnional apprmal to the system bn the form of amenm Ondmgsl founded upon both its scrutm) of the puruon of the emergency response plans retatmg to the serens and its prelemanary assessment of a field esercise conducted in February 1984. stafT Enh_ EP-3. Memorandum from Major P May to Rachard %. Knmm f Apnl 18. 19846 and Attachinent at 2 (admitted at EP Tr.1468L At some future pomt, homeser. FEM A edi make certam acousucal measurements. Addauonally, following another soundmg of the sirens. f EM A mill conduct a survey to confirm that the persons withm the ten-nule plume emergency plannmg zone (EP2) heard the siren and understood us segmficance. EP Tr 1570-81.
84 Apphcants' Enh EP.17, vna of Dr. M. Reada Bassiouns, sitached to Appbcants' Tesumony on Emergency Plannmg Comennon 9 ( Arni 16.1984), admnted at EP ir.1825 85 EP Tr 1571.1834-35 8^ 5n FEM A-43. -standard Gede for the Evaluanon of Alert and NouGcanon systems for Nuclear Power Plants? (september 1983) at E-4 tu E.5. The cnteria set forth therem are m the nature of guide-hnes addreswd to the futrillrnem of the requirements of FEM A's regulauons regardmg alert and notil's-canon systerns (found m 44 C.F R. Part 350L FEM A-43 at i
" NUREGa54/ FEM A. REP-l. Revam 1. "Cntena for Preparanon and Evaluanon of Radiological Emergency Resprinse P:ans and Preparedness in support of Nuclear Power Plants" INmember 1980) at 3-1. This point NRC/f EAf A document contams guidance for ail awects of emergency respome plannmg.
Id at l.
77 i
t
- _ _, _ _ _. ~,
and industrial facilities with twenty or more employees " Further, the emergency response plans call for " route alerting", i.e., in the event of an emergency, assigned individuals will proceed on predetermined routes to alert persons by a variety of means." We agree with the Licens-ing Board that these supplemental measures provide a satisfactory complement to the sirens
- Thus, there is an adequate foundation for the Board's ultimate conclusion on the sufGciency of the entire alert and notification system.
B.
Despite the evidence and the Ondings of fact based thereon, the intervenors claim the Licensing Board was required as a matter oflaw to await the Gnal FEMA finding on sirens before app oving the emergency response plans. This claim manifestly is without merit.
It is now well-settled that the issuance of FEhf A's final findings on the adequacy of offsite emergency plans acd preparedness is not a pre-requisite to the authorization of a it.ll-power operating license. Rather,
" preliminary FEMA reviews and interim findings presented by FES! A witnesses at licensirg hearings are sufficient as long as such information permits the Licensing Board to ccnclude that ofTsite emergency pre-paredness provides ' reasonable assurance that adequate protective meas-ures can and will be taken in the event of a radiological emergency.' "
The recent decision of the Court of Appeals for the District of Columbia j
Circuit in Union of Concerned Scientists v. NRC.n relied upon by the in-tersenors, is not to the contrary. That decision focused upon a'Commis-sion rule to the elTect that licensing boards need not consider the results of emergency preparedness exercises in a licensing hearing before au-thorizing the issuance of a full power license. The Court of Appeals determined that the rule violated section 189a(l) of the Atomic Energy Act of 1954, as amended," in that it denied "a right to a hearing on a material factor relied upon by the Commission in making its licensing decisions." In reaching this conclusion, however, the court neither held nor implied that a licensing board must invariably place in limbo an i
a: EP Tr.1873 A tone alert rsoso *ili provide both an a:crt signat and the noutkanon menase over the Emergency Broadcast system. / bat s* fP Tr.1885,1888-89,1911 12
- L8P-84-37,20 NRC at 974 75.
'l Pordir Gas sad Linvr Ca (Diablo Canyon Nuclear Po er Plant, Umts I and 2L ALAB-775,19 NRC 1361, IJ79 f1984), urmt Soumers Calvorner Edison Co. (san Onofre Nudcar Generaung stauon.
Units 2 and 37, ALAB-717,17 NRC 346, 380 n.57 (195)L Csamaan Ces J Dntrar Co (wm.11.
Iammer Nucicar Power stauon, Unit No.1). ALAB-727,17 NRC 760,775 nl0 (198JL See also Detro<r Edrsus Ca (Ennco Fermi Ah,mec Power Pfani, Umt 2h ALAB 730,17 NRC 1057.10the7 (1983L M 735 F 2d 1437 (1984L U42 U s.C. 2239(a)flL
735 F.2d at 1418 l
78 l
r
operating license proceeding in which emergency preparedness issues are contested to await the final FEM A findings."
III. DIESEL GENERATORS A.
All nuclear power facilities are required to hase an onsite electric power system to permit the " functioning of st*uctures, systems, and components important to safety" in the event that the facility's ofTsite electric power system is inoperative.$ To fulGil this requirement at Catawba, the applicants, infer aha, installed diesel generators manufac-i tured by Transamerica Delaval Incorporated (TDI). While the hearing
~
was in progress on the intervenors' quality assurance contention, the parties lea'ned of the discovery of defects in TDI diesel generators at
}
other nuclear power facilities through the board notification process.'7 Prompted by this information, the intervenors sought to litigate the ade-quacy of Catawba's compliance with the onsite power system require-ment by presenting a three-part contention challenging the rehability of its TDI diesel generators.'8 in determining wh' ether to accept the intersenors' late filed conten-tion, the Board below applied the five factor test of 10 C.F.R.
2.714(aHI).** On a balancing of those factors, it concluded that the first part of the contention dealing with crankshaft design should be admitted on the condition that the intervenors later demonstrate their ability to contribute to the resolution of the issue - the third lateness factor '*
O As carher noted in this caw an emergencv preparednen field enerow took place m February 1984 -
The intersenors do nos clairn t%i they mere precluded from emplorms at the hearms the results of that esercise.
10 C.F R. Part 50. Aprendn A. General Dewgn Cnienon 17.
Board Sourgauon 83-160 LOctober 21. 1983). see sho Board.Nonfkauon 83160 A (Nosember 17 1983L
'8 Tr. 9659.75 As paraphrased by the Board. the contemion stated.
The Appheants have not demonstrated a reasonabic asuararice that the TDI emersency diesel generators at the Catanbu Nuclear 5tauon can perform their safety funcuan in sersne becauw of (!) madequate devan of the crankshafts. (23 defootnoca m quahty assurance at TDI. 01 operaung performance history of TDI generators at other nuclear facihues Memorandum and Order of February 23.1984 (unpubbsheds at 4.
"Tr. %24-25. %59 75 Memorandum and order of February 23 at 3. Those factors are:
dif Good cause if ann for failure to rate on time 49 The asaelabibiy of other means m %ereby the peuuoner a mterest mill be proiected imp The cuerit to whwh the petitu>ner's partwapanon may reawnaNy be capected to asma en de.
setopmg a sound record.
Os# The entent to whwn the peuhoner's mierest will be represented by cusams parties.
M The entent to whwh the peuuoner's parucipauon will broaden the inues or delay the proceedmg t@ Memorandum and Order of February 23 at 6 79
The Board, however, rejected the other two parts of the contention.'"'
Thereafter, the Licensing Board dismissed the conditionally-accepted
" crankshaft" contention because the intervenors had failed to establish (by supplying the Board with the name of a quahfied expert who would assist them) that they could make a substantial contribution to the record on the issue."U In the interim, the applicants notified the Licensing Board of a number of problems encountered with the Catawba generators."" This disclosure prompted the Board, on its own motion pursuant to 10 C.F.R.
2.760a, to pose the problems as an issue in the proceeding.'" Upon review, the Commission found that the matters raised by the Board sua sponte did not constitute a serious safety matter and it dismissed the issue.*
Following this development, ihe intervenors then sought the admis-sion of the same issue as a late-filed contention. Applying the five sec-tion 2.714(a)(1) factors to the contention, the Licensing Board deter-mined that the " balancing process" clearly favored its admission, provid-ed that the intervenors demonstrated that they could make a substantial contribution to its resolution."* In the words of the Licensing Board:
As me hase made clear in the past, we do not behese the present intervenors can make a substantial contribution to these techmcalissues unless they are prepared to present empert testimony or at least have espert assistance in their cross-examina-tion. The Intersenors have repeatedly indicated that they will be die to produce ex-perts; so far, however, they have not done so. Now that the Intervenors have in hand the Apphcants' report on site-specific problems at Catamba, they should be in a position to move quickly to obtain the appropriate espert assistance. In these cir-cumstances, our admission of this late contention is conditioned upon the interse-nors' serving by July 6,1984 their designation of a named diesel generator empert or experts, along with a description of quahfications (resume). Failure to meet this con-dition will result in dismtssal of this contention. Conversely, if this condition is met.
Factor 3 will favor admissson of the contention.
i e
IN IJ at 6 7. The Licensing Board also referred a poruen of aus rubes to us, but we declined to accept j
the referral. Scr ALAB-768,19 NRC 988 (1984L i
W order of April 13.1984 (unpubbshedL i
W Letter from J. Michael McGarry. til, to Licenung Board iFebruary 17,1984L see also letter from J.
t Michael McGarry, til. to Licensmg Board (March 29,1984L 8N Memorandum and Order of February 27.1984 (unpubhshedL M Order of June 8.1984 (unpubhshedL 3# LBP 84-24,19 NRC at 1586 n.$0. As condinonally admined. the contenuon read.
whether there as a reasonable assurance that ihe TDI emersency diesel generators as the Caia -
ba stauon can perform their funcuon and proude reliable service because of the problems that have ansen m the course of tesung and mspect.on of such generators. such as the problems reported m the Apphcant's letter to the Board of February I7 1984
~
10? w ^
3 80 i
l 1
i
In an attempt to meet the Board's condition, the intervenors designat.
ed Dr. Robert Anderson, a professor of metallurgy at San Jose State Uni-versity, as their " source of expert assistance."'a According to the inter-senors, Dr. Anderson was then serving as a consultant on TDI diesel generator issues to intervenors in the Shoreham proceeding."" On the basis of a subsequent teicphone conference, however, the Licensing Board concluded that serious doubt existed as to the level of assistance Dr. Anderson would provide the intervenors in this case. This was be-cause the intervenors were unable to state whether Dr. Anderson would appear as their witness or even be present at the hearing to assist them with cross-examination of the stafTs and applicants' expert witnesses."8 l
Thus, the Board ordered the intervenors to certify that their expert would review the principal documents and the other parties' prefiled I
direct testimony and be present at the hearing to assist in the interve-nors' cross-examination on this issue. Alternatively, the Board gave the intervenors the option of taking additional time and submitting a detailed statement, prepared with the assistance of qualified experts, that outlined their disagreement with the other parties' technical reports and explained how the intervenors would substantiate their position.'"
i The intervenors advised the Licensing Board that they were unable to certify that Dr. Andersori would be available to review the principal documents and prefiled testimony or be present at the hearing because of his conflicting obhgations in the Shoreham proceeding H2 Instead, I
they submitted a purported statement of their technical position and at-f tached to it the prefiled direct testimony of a group of witnesses from the Shoreham proceeding."2 The Licensing Board then found, inter alia, that the intervenors' statement failed to reflect any review by a qualified expert of the applicants' and staff's reports on the Catawba diesels and contained no explanation from a qualified expert of how the proffered Shorcham testimony was relevant to the conditionally admitted conten-tion. Thus, the Board concluded that the statement did not comply with its directive and that the intervenors had failed to demonstrate that they would be able to make a significant contribution to the record. Conse-quently, it dismissed the contention.H4
'# Letter from Robert Guild to Lwenwng Board Outy 6.1984> at 2 15IM M* Tr.12.749 IH Memorandum and order of July 20.1984 (unpu%shed) at 4-5.
92 Leiter from Roben Guald io Licensing Based ( Augun 1.1984L H3 Letter from Roben Gwid to Lwensing Board ( Auguu 16.1984)
M* order or Auguu 22. 1984 (unpu%shed); Memorandum and Order o( september 4 1984 funpubbshedt 81
-rr 7
w w
t yr
B.
Before us the intervenors assert that the dismissal of their conten-tion improperly deprived them of the right to a hearing on the issue con-ferred by section 189a of the Atomic Energy Act of 1954, as amended.'H First, they argue that it was error for the Licensmg Board to apply the fise section 2.714(a)(1) factors in evaluating the admissibility of their diesel generator contention. Second, they claim that, esen if the Licens-ing Board acted correctly in imposing those requirements, the Board's unjustiGed scheduling actions prevented the intersenors from obtaining the services of the necessary experts.
1.
The intervenors bring their Orst claim to the wrong forum. As they themselves recognize,"* their argument has already been consid-cred and rejected by the Commission in this very proceeding. In CLI-83-19, the Commission ruled that a licensing board is required to consid-er all nye section 2.714(a)(1) factors before admittmg a late contention, esen if the contention is based on previously unavailable information."7 In this connection: the Commission ruled that, contrary to the interve-nors' assertion, section 189a of the Atomic Energy Act does not provide members of the public with an unquahfied right to a hearing. Rather, the Act permits the establishment of reasonable threshold requirements for the admission of contentions to NRC licensing proceedings and, in the Commission's view, the Ove factor test represents a permissible ex-ercise of that authority.H8 Inasmuch as the adjudicatory boards must adhere to the Commission's mandates, the Licensing Board thus necessarily was correct in balancing all of the section 2.714(a)(1) factors in assessing the admissibility of the intervenors' diesel generator contention.
2.
The intervenors'second argument likewise must fail. The interve-nors do not explicitly challenge the rejection of their purported technical j
statement by the Licensing Board. Rather, they insist before us that the j
Board should have heeded their objections and postponed the hearing on the diesel generator contention until after the completion of the hear-ing on diesel generators in the Shorcham proceeding. According to the intervenors, "[sluch scheduling.. served to deprive us of Dr. Ander-son's expert assistance, and ultimately, our right to a hearing on these serious diesel generator claims."H' But when the Licensing Board solicit-ed the views of the parties on the hearing schedule before setting the Gnal hearing dates, the intervenors did not object to the schedule on the HS42 U s C 223Ha).
H61niervenori Bnctas $5 56.
H717 NRC at 1045.
318 /d at 1045-47.
H'intervenors' Bner at 60.
l 82 i
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I
grounds that their expert would be unavailable. Rather, they objected to the Catawba hearing preceding other hearings involving diesel genera-tors on the general grounds that it would waste the parties' time, effort and energy when similar issues would be more thoroughly aired in the Shoreham case.'2' Without having explicitly linked the Catanha hearing schedule with the unavailability of their expert witness in their objection before the Licensing Board, the intervenors may not now claim for the first time on appeal that the Board below erred in establishing the hear-ing schedule.
Nor did the Licensing Board err by not postponing the hearing when the intervenors informed the Board of Dr. Anderson's unavailability be-cause of his conflicting commitment in the Shorcham proceeding. Once again, the intervenors failed to move for a continuance and to place the issue properly before the Board. In any event, as earlier noted, we will overturn a scheduling decision only when we find that a licensing board set a schedule that deprives a party of its right of procedural due proc-ess.'2' We do not find that here.
As the Board pointed out, the intervenors had not made any unequiv-ocal commitments on the availability of Dr. Anderson. Thus, whether the intervenors could count on his assistance even after the termination of his services in connection with the Shorcha.m proceeding was uncer-tain at best. Beyond that, we subscribe to the Licensing Board's observa-tion that the intervenors had ample time to prepare for the hearing and j
obtain the assistance of experts had they made diligent efTorts to do i
so.'22 As the Board also noted, given the Commission's policy on timely completion of operating license proceedings,'2) it would have required a much better reason than the intervenors supplied to justify a delay of this proceeding to await the conclusion of a hearing of uncertain duration being held in an entirely different proceeding.124 120Tr.12,730-33 121.%v p 74 sutra ser etw South Tewas. 21 NRC at 379
'22 Memorandum and orJer of september 4 ai 5 7.
- 12) CLi-8 l-8,13 S RC at 452 124 Memorandum and order of september 4 at 6 We need not dwell upon the intervenors' claim (Intervenors' Bner at 60) that they were enulled to "maalel out our caw lon the dieset generator muel enurch through cross-exammanon if me choose
- Had the contcanon been accepted for istigst on. that no doubt would have been so. But, as we have seen, the contenuon was not accepted because the miervenors did not sausfy the wcuon 2 714(al test 83 1
IV. MISCELI,ANEOUS ISSUES The intervenors also complain of the Licensing Board's rejection of a number of their other contentions. None of their protests in this regard has substance.
A. 'The Licensing Board was clearly correct m declining to accept the intervenors' contentions seeking to litigate both the need for the power to be generated by Catawba and the financial quahfications of tl'e munic-ipalities that are co-owners of the facility.'" The Commission has prosid-ed by rule that neither need-for-power nor financial qualifications ques-tions are to be explored in an operating license proceeding such as the one at bar.'2* Needless to say, in the absence of any endeavor by interve-nors to seek a waiver of, or an exception to, the operation of these rules in this proceeding,'27 the Board below was obliged to apply them.i28 B.
On April 12, 1984, the intervenors submitted a contention to the.
elTect that the applicants had failed adequately to correct certain identi-Ged control room design deficiencies.'2' Applying the five section f.
2.714(a)(1) lateness factors, the Board rejected the contention because the intervenors had failed to establish either good cause for their tardi-i ness or their ability to make a substantial contribution to the resolution
{
of this issue.5M i
We see no reason to overturn that result. Inasmuch as the information l
underlying their control room design claims had been made available in f
l
)
125 LBP 82107A,16 NRC at 1801 (need for power), LitP 84-24.19 NRC at 1425 n 3 (0nanaal quahrsanonst 126 See 10 C f R. Sl.106tc) (need for pow er).10 C f R. 2.104(c)(4), as amended etTecuve october 12, 1984.49 Fed Res.35.747,35.752, as corerrred. 49 fed Reg 16.631 (1984) 16nancial quah6 cations).
The Licensing Board's action on the inicrvenors' Dnancui quab6 cations contentton had been bawd upon an carher (19823 rule that, to the entent relevant here, was cuenuaHy identical to the 1984 rule Ser 47 fed. Reg. 1),750.13,75) (1982t Ahhough. upon JuGscial review, it was remanded to the Com-mmaon for further conuderatw, the 1982 rule remained in etTest pending the compleuon of the remand and the pubinsuon of the 1984 rule. Set 49 Fed. Reg 24.111 (1984), marrpernas Arw Engbad Coahren on hkar Pollwen v. ARC, 727 f 2d !!27 (D C. Cir.1984L The current rule has aim been the subject ora Judioal chalienge, ohnh is now penders an the Distrm.t of Columbia Circuit. New England Coahren on hwkar Posturen u. hRC. ho. 84-l5 44 (D C. Cir. Gled oct. I5 I984), wesointered wah Coah.
renfor rAr Orwonment v. ARC, No. 84131J (D C, Car. 6ied July 12.1984L 127Src 10 C F R. 2.758(bt 128 in connecuon with their need-for-power claims, intervenors asserted below that the staffs draft enti-ronmental impact statement should have mcluded construcuon costs in its cost /benent assessment. We hate not been enhghtened by mtersenors respecung why the Analyws underlying the Licenung Board's rejection of their asseruon was fauhy. See LBP-8216,15 *iRC ai 584. LBP-82107A,16 NRC at 1801.
l We thus are constramed to observe once again that it as not enough samply to declare Catly that a partic-ular Board ruhng was in error. Rather, it is mcumbent upon the appellant so confrons directly the reawns assigned for the challenged ruhng and to edenury with parucutarity the mfirmines purportedly enhereni in those reasons 12*Sec Palmetto Athance and Carolina Entironmental study Group Mouon to Readmit Contenuons Regarding severe Accidents. Control Room Design oencencies and Laca of r'mancial Quahfkanons t Apnt 12,1984) thereafter -Intervenors' Monon to Readmit Comentu,ns1 IMLBP-84 24,19 NRC at 1425 n.3.
84 r
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the applicants' Final Control Room Review sent to them on June 1, 1983,08 the intervenors were not entitled to await the issuance of the sta!Ts Safety Evaluation Report on. March 9,1984 before filing the contention.02 Moreover, intervenors did not establish that they would make a sub-stantial contribution to development of the record. Their single assertion in this regard was that'the past efTectiveness of their participation (both on other issues in this proceeding and in other proceedings) provided a basis upon which the Board could and should conclude that they would assist in developing a sound record on the control room design matter.") Such a bare assertion, unsupported by specilie information from which a Board could draw an informed inference that the interve-
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nors can and will make a valuable contribution on a particular issue.in I
this proceeding, will not suflice."'
C.
Among the intersenors' originally filed contentions were those concerned with the consequences of an explosive hydrogen-oxygen reac-tion within the Catawba ice condenser containment following a loss-of-coolant accident. Relying on the proposition that contentions that are the subject of general rulemaking by the Commission should not be ac-cepted in individual licensing proceedings, the Licensing Board rejected the intersenors' contentions. It noted in this regard that hydrogen gener-ation in ice condenser containments such as that at Catawba was being addressed in an ongoing rulemaking proceeding."5 The Board also noted that, although the Commission previously had held that the hydrogen issue could be litigated in individual proceedings where a credible loss-i of-coolant accident scenario entailing hydrogen generation and certain other consequences were pled, no such scenarios were set forth in the in-tervenors' contentions.*
Subsequently, the intervenors filed four purported accident scenarios as contentions, in the guise of objections to the Board's order rejecting
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the contentions. Only three of these scenarios, however, concerned the generation of hydrogen and its consequences, and the Board again reject.
!JI Scr letter from Albert v. Carr. Jr.. to Lnensmg Board (June 8.1983).
U2 Scr CLi-8319,17 NRC at 1045.
U3 Intervenori Monon to Readmit Contenoons at 6, 834 Ser Ha2hmeroa A,Nr Powr Supp6 sysics (% PPSs Nuclear Project No 3), ALAB 747.18 NRC 7
116, 1881 (1983); Afssisserv Powr d forer Co. (Grand Gulf Nuclear si.aaon Units 1 and 2).
ALAB 704,16 NRC 1725,1730 (1982).
"5 LBP-8216.15 NRC at 584 See Pommar firrira Po cr Co (I)ousias Point Nuclear Generaung sta.
tion. Units I and 27. AL AB-215. R AFC 79. 85 41974L W LBP-82-16.15 NRC at $64 5er Aterropohree Edson Co. (Three Mile island Nuclear statnin. Unit Sc_1), CLi-8016. Ii NRC 674,675 (1980).
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ed them as barred by the pending rulemaking '" in doing so, the Board noted that the rulemaking directly addressed the intervenors' hydrogen concerns and would be completed before Catawba was licensed. It also observed that the intervenors were free to file comments on the pro-posed rule.'38 Over a year later and af 'r the applicants sought authority to conduct low-power testing, the intervenors once more mosed to have their hydrogen contentions admitted. They claimed that the premise for the Board's earlier ruling, i.e., that the rulemaking would be completed before Catawba was ready to be licensed, had proved wrong. Without ad-dressing the criteria for late-l'iled contentions, the Board rejected the in-tervenors' contentions for a third time, finding that Commission action on a final rule dealing with the generic hydrogen generation issue was expected before full-power authorization of the applicants' facility.'2' We have examined the intervenors' hydrogen control contentions and-find that, in the circumstances presented, the Licensing Board was cor-rect in rejecting them because they were the subject of an ongoing rulemaking. Aforeover, even if we disagreed with the Board, the result would not change. On appeal, we are required to apply the Commission's regulations in effect at the time of the appeal.'" Because the Commis-sion's hydrogen control rule is now final"' and sets forth specifically what measures are required in the case of Catawba, in all events we now would have to reject the intervenors' profTered contentions as an imper-missible attack on the Commission's regulations.u2 i
i For the foregoing reasons, the Licensing Board's authorization of the issuance of full-power operating licenses for the Catawba facility is af-f?rmed, except insofar as those licenses permit the receipt and storage on the facility site of spent fuel generated at other nuclear facilities."2 As earlier noted, the issues pertaining to such receipt and storage will be
'37LBP 82107A.16 NRC at 180710 The Board found that the inter $cnors' founh accident stenano, e e. the scenano that did nas invt4ve the generation of hydrogen. had already been htigated in the cein-struction permit proceeding and thus ens barred from rurther htigation in the operating heense p-oceed-ing Id. at 1808 i
t3s /d. at 180910.
I 13' L8P.84 24,19 NRC at 1425 n.3.
HCDouckn Poet 8 AEC at 82-83.
MI 50 Fed Reg-3498 (1985), codiried at 10 C.F.R. 50 44(cH 3) 14210 C F.R. 2.758 143 In this connection. me have conudered all or the intervenors' o<her claims and have round them in-substantial Additionally, we have examined on our own initiative the portions of the Lnenung Basrds' decissons not embraced by the appealt This ciamination dislosed no error marranting corrective action.
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1 considered in a subsequent opinion. Pending the issuance of that opin-ion, the applicants shall not receive at Catawba spent fuel generated else-where without reasonable prior notice to this Board.
It is so ORDERED.
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FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board I
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4 Atomic Safety 1
and L.icensing Boards issuances l
ATOMIC SAFETY AND LICENSING BOARD PANEL
([j O,
B. Paul Cotter,
- Chairman Robert M. Lazo, "Vice Chairman (Executive)
T Frederick J. Shon. *Vice Chairman (Technical) l O
Members l
O i
i Dr. George C. Anderson James P. Gleason Dr. Unda W. Little Chanes Bechnoefer*
Andrew C. Goodhope Dr. Emmeth A. Loebke*
Peter B. Bloch*
Herbert Grossman*
Dr. Kennth A. McCollom Lawrence Brenner*
Dr. Cadet H. Hand, Jr.
Morton B. Margulies*
Glenn O. Bnght*
Jerry Harbour
- Gary L. Mahothn Dr. A. Dixon Calhhan Dr. David L Hetrick Marshall E. Miller
([]
1 James H. Carpenter
- Emest E. Hill Dr. Peter A. Morris
- Hugh K. Clark Dr. Frank F. Hooper Dr. Oscar H. Paris
- Dr. Richard F. Cole
- Helen F. Hoyt*
Dr. Paul W. Purdom g
Dr. Frederick R. Cowan Elizabeth B. Johnson Dr. David R. Schink
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Dr. George A. Ferguson James L. Kelley*
Dr. Martin J. Steindler
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Dr. Michael A. Duggan Dr. Walter H. Jordan Ivan W. Smith
- Dr. Harry Foreman Jerry R. Khne*
Dr. Quente J. Stober
.d Richard F. Foster Dr. James C. Lamb lil Seymour Wenner John H Frye Ill*
Gustave A. Linenberger*
Sheldon J. Wolfe*
,. :,n...
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- Permanent panel members l
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Cite as 22 NRC 89 (1985)
LBP 85 22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Hugh K. Clark, Chairman Dr. George A. Ferguson Dr. Oscar H. Paris In the Matter of Docket No. 50-462 OL ILLINOIS POWER COMPANY, et al.
(Clinton Power Station, Unit 2)
July 11,1985 The Licensing Board grants Applicants' motion to terminate the pro-f ceeding for an operating license for Unit No. 2 of the Clinton Power Sta-tion, subject to certain conditions.
MEMORANDUM AND ORDER (Terminating Proceeding)
INTRODUCTION On May 17,1985, Illinois Power Company (IPC) filed a Motion to Terminate Proceeding (Motion) on the grounds of mootness and requested this Board to authorize the Director Office of Nuclear Reactor Regulation (NRR), to rescind the construction permit, CPPR-138, issued for Clinton Power Station (CPS) Unit 2. On May 29,1985, the People of the State of Illinois (State) filed an answer to IPC's Motion (State Response), stating that it did not object to the termination of the proceeding, per se, but requesting the Board to order an environmental, 89 4
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safety, and cost assessment of IPC's proposed method for remediation of the Unit 2 excavation area. On June 6,1985, the NRC StalT(Staff) re-sponded to IPC's Motion (StalT Response) stating that it had concluded, largely on the basis of photographs, that IPC need not fill the Unit 2 ex-cavstion at this time, but Staff set forth certain cetions for environmental protection that it proposed to require ofIPC as a condition to the licens-ing of CPS Unit 1.
On June 11, 1985, the Board issued a Memorandum and Order (Requesting Additional Information on ' Unit 2 Excavation) (unpub-lished) indicating that it wanted additional information about the Umt 2 excavation before rendering a decision on IPC's Motion and that it be-lieved the. information needed could be obtained from the photographs discussed in the StalT Response. The Board had concerns about possible safety matters associated with the unfilled excavation and noted that the StafT Response did not address safety matters. Therefore the Board or-dered the StalT to provide it with copics of the photographs and indicated i
that copies should be made available, also, to any party that wished to examine them.
Subsequently, Staff advised the Board that the photographs were made with a Polaroid camera, and consequently negatives, from which copies could readily be made, were not available. Therefore the Board j
decided to examine the original photographs in a round-robin fashion. It i
issued a Memorandum and Order (Concerning Request for Photo-j graphs) on June 13,1985 (unpublished), stating that it would make the photographs avail @le for inspection by the parties upon request, provid-i ed that such request were filed with the Board by July 1,1985. No re-quest to inspect the photographs having been received, we shall now render our decision on IPC's Motion.
BACKGROUND The U.S. Nuclear Regulatory Commission (NRC) received an applica-tion for operating licenses for CPS Units I and 2, two boiling water nuclear reactors located in liarp Township, DeWitt County, approxi-mately 6 miles east of Clinton, Illinois, on September 8,1980. The appli-cation for Unit I was filed by filinois Power Company on behalf ofitself 5
and Soyland. Power Cooperative, inc., and Western' lilinois Power j
Cooperative, Inc. (Applicants), but IPC is the sole owner and applicant a
of CPS Unit 2. Unit I was originally scheduled for completion in 1983, and Unit 2 was scheduled for completion in 1995.
Petitions requesting a hearing and the right to intervene were filed on October 27, 1980, by the Prairie Alliance and by the lilinois Attorney
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General on behalf of the People of the State of Illinois. This Atomic Safety and Licensing Board was established by order issued November 7,1980. On May 29,1981, the Board issued an order admitting PA as an Intervenor and the State as an Interested State pursuant to 10 C.F.R.
9 2.715(c).
On November 13, 1981, the Board granted an unopposed motion by the Applicants for Severance and Stay of proceeding as to Unit 2 (Docket No. 50-462-OL), and by unpublished order dated February 14, 1985, the proceeding for Unit 1 (Docket No. 50-461-OL) was terminat-ed. On October 18, 1983, IPC notified the Board and parties by letter that CPS Unit 2 had been cancelled, and subsequently there was no fur-ther activity in that Docket. On April 9,1985,IPC wrote to the Director, NRR, formally verifying the prior notice of cancellation of Unit 2, with-l drawing its application for Unit 2, and requesting that the Director cancel the construction permit for Unit 2.
DISCUSSION In the Staff Response to IPC's Motion, Stafrindicated that it had con-ducted a review to determine whether any provisions for the protection
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of the environment should be required at the Unit 2 site and concluded that certain conditions for environmental redress of the site should be l
required by this Board as conditions for the dismissal of this proceeding.
j Staff did not, howeser, address the question of whether there were any safety concerns associated with the Unit 2 excavation, a matter of con-cern to the State and to this Board. In the discussion to follow, we deal first with the safety issue, and then return to consider environmental redress.
The Unit 2 site lies entirely within the CPS Unit I exclusion area on property owned by the Applicants and is not visible to persons located outside the exclusion area. The excavation is approximately 40 feet deep, 350 feet wide, and 1350 feet long at the top, and approximately 280 feet wide and 900 feet long at the bottom. One side of the excavation abuts the radwaste, control and diesel buildings for Unit 1. Portions of the north and south sides of the excavation are covered by a revelment composed of a grout intrusion blanket. The remaining portions of the north and south sides, and the east side of the excavation, are sloped and are stabilized by herbaceous vegetation. (See Affidavit of Germain Laroche (Laroche Affidavit) dated June 6,1985, and attached to the Staff Response, at 2-3.)
The Board was concerned that a person might be injured by accidental-ly falling into the excavation. The photographs sent to us by the Staff, 91 I
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9 however, clearly show that the slope of the excavation's sides is every-where less than 45' and hence not steep enough to constitute a signifi-cant hazard. There is a road running along the east rim of the excavation, and presumably a vehicle accidentally going oser the rim could turn over and perhaps roll on the slope, but Applicants have committed to construct a 3 foot high berm on the three exposed sides of the excava-tion; this structure should prevent such a vehicular accident. On the basis of the foregoing, we conclude that the excavation, if left unfilled, will present no significant hazard to the health and safety of the public or of plant personnel.
We turn now to environmental considerations. The elevation of the bottom of the excavation is 695 feet above MSL A drain at the bottom empties into the cooling pond, which has an elevation of 690 feet above MSL. A Cap gate in the drain prevents backDow into the excavation from the cooling pond. Applicants plan to include provisions relating to elDuent discharges from the excavation drain in their NPDES permit renewal before the end of 1985. (Laroche AlEdavit, at 3.)
As we have mentioned, Applicants have committed to construct a 3-i foot-high berm on the three exposed sides of the excavation to prevent Good waters from entering the excavation. At the time of the filing of l
the Staff Response, Staff did not yet know whether IPC was going to t
construct the berm of earth or of concrete. Staff indicated that if the berm is to be constructed in whole or in part of earth, Staff will require Applicants to stabilize the berm with vegetation in order to prevent soil erosion. (/ bid.)
Because of the cancellation of Unit 2, the Unit 2 excavation will be considered part of the Unit I site. As a licensing condition of Unit I, the Applicants will be required to submit an Environmental Protection Plan j
(EPP) which, upon approval, will be appended as Appendix B to the j
Unit I operating license. The EPP will require the licensee to provide the Staff with a detailed analysis of data and proposed course of action to alleviate the problem should harmful elTects or evidence of trends to-wards irreversible damage to the environment be observed. Additionally, I
the EPP will require the licensee to prepare an environmental evaluation I
before engaging in any additional construction or operational activities which may have measurable environmental effects that are not confined to onsite areas previously disturbed during site preparation and plant I
construction. If the evaluation indicates that the activity involves an un-reviewed environmental question, prior approval of the activity must be obtained from the Director of NRR. If the activity involves a' change in the EPP, the activity and change in the EPP will require an appropriate license amendment. (/d. at 4.)
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The Unit 2 site is presently stabilized and presents no significant envi-ronmental impacts. The construction of the berm around the excavation will provide a satisfactory means of ensuring continued environmental acceptability and also will provide protection against a schicular accident at the excavation. StalT sees no immediate need to fill the excavation and believes that the ultimate disposition of the excavation can be deferred for future consideration. Should the excavation later require further redress, such action can be required pursuant to the EPP for Unit 1. Ud. at 4-5.)
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CONCLUSIONS Considering the Applicants' commitment to construct a berm around the excavation and Staffs requirements with respect to the berm, we conclude that the Unit 2 excavation will present no significant safety risks. Further, we conclude that the measures already taken to stabilize the excavation plus the additional measures committed to by Applicants and those to be required by the Staff are adequate to ensure the contin-ued environmental acceptability of the site.
ORDER Upon consideration of the foregoing and the entire record in this matter, pursuant to 10 C.F.R. s 2.107(a) it is, this 1Ith day of July 1985, ORDERED:
1.
That IPC's Motion to Terminaie Proceeding for an operating license of Clinton Power Station Unit 2 is granted, subject to the condi.
tions that:
(a) The Unit 2 excavation shall be considered a part of the Unit I site and subject to lice:ising conditions imposed by the NRC Staff; (b) The Staff shall require licensee to conform to the monitoring and reporting procedures described in 1_8 of the Affidavit of Germain Laroch dated June 6,1985.
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2.
That the Director of Nuclear Reactor Regulation is authorized to
-rescind Construction Permit CPPR-138 issued for Clinton Power Station Unit 2.
FOR Tile ATONflC SAFETY AND LICENSING BOARD flugh K. Clark, Chairman (by OllP)
ADhflNISTR ATIVE JUDGE George A. Ferguson ADN!!NISTR ATIVE JUDGE i
t Oscar 11. Paris ADhlINISTR ATIVE JUDGE 1
Bethesda, hf aryland i
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Cite as 22 NRC 95 (1985)
LBP 85 23 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
h Herbert Grossman, Chairman i
Richard F. Cole l
Ernest F. Hill l
in the Matter of Docket No. 50 223 SP (ASLBP No.85-509 02 SP)
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UNIVERSITY OF LOWELL (Training and Research Reactor)
July 19,1985 MEMORANDUM AND ORDER (Cancelling Prehearing Conference and Terminating Proceeding)
Memorandum On February 14, 1984, the University of Lowell (Licensee) timely filed an application for renewal of its Facility Operating License No.R-125 for an additional 30 years. The license is for the operation of a training and research reactor located on the campus of the university in Lowell, Massachusetts.
On March 29,1985, the NRC published a notice in the FederalRegister offering an opportunity to the Licensce and any other person whose interest might be alTected by the renewal of the license to file a writter.
petition for leave to intervene by April 29,1985. 50 Fed. Reg.12.668.
By petition for leave to intervene, dated April 29,1985, filed with the NRC, John F. Doherty sought to intervene in this proceeding. No other petitions for leave to intervene have been received.
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On May 6,1985, this Atom lc Safety arid Licensing floard was estab-lished to rule on petitions for leave to intervene and to preside over the proceeding in the event that a hearing is ordered. 50 Fed. Reg.19,827 (May 10,1985).
We issued an Order on June 20, 1985, subsequently published in the Federal Register, setting a prehearing conference for August 1-2, 1985, to consider Mr. Doherty's petition. The putlic was invited to attend. 50 Fed. Reg. 26,423 (June 26,1985).
Subsequently, by letter dated July 11,1985, Mr.Donerty withdrew his petition for leave to intervene. Ilis withdrawal leases no petition before this Board and no issues to be heard. Consequently, there is no need or occasion for the previously scheduled preheating conference or for sub-sequent evidentiary hearings.
Order t
For all of the foregoing reasons, an3 based upon a consideration of the entire record in this matter, it is, this 19th day of July 1985, ORDERED:
1.
That the prehearing conference scheduled for August 1-2, 1985, is cancelled; and 2.
That this proceeding, begun with establishment of this Board on May 6,1985, is terminated.
Board members, Administrative Judges Richard F. Cole and Ernest F.
11111, join in this Order.
FOR TifE ATOMIC SAFETY AND LICENSING BOARD lierbert Grossn an, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland July 19,1985 4
s 96 l
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Cite as 22 NRC 97 (1985)
LBP-85-24 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
ATOMIC SAFETY AND LICENSING BOARD' Before Administrative Judges:
Peter B. Bloch, Chairman Mr. Gustave A. Linenberger, Jr.
Dr. Jerry Harbour in the Matter of Docket No. 50 293 OLA (ASLBP No. 85 510-01-LA)
COSTON EDISON COMPANY (Pilgrim Nuclear Power Station)
. July 19,1985 l
l In this Memorandum and Order. the Licensing Board dismisses a peti-tion to intervene for failure to show good cause, untimeliness and lack of standing.
PETITION TO INTERVENE: TIMELINESS A petition to intervene in a license amendment case that is late by 9 days and does not.show good cause for late filing will be dismissed for untimeliness.
INTERVENORS: STANDING Although residence 43 miles from a nuclear power plant may be ade-quate to establish standing with respect to applications for the construc-tion or operation of a nuclear power plant, this same distance is not ade-quate, without a further showing, to establish.starding in a case involv-ing a change in allowable K-elTective for a fuel pool.
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AIEhlORANDUSI AND ORDER (Petition to Intenene)
Stemoramium On June 21, 1985, Mr. John F. Doherty (" Petitioner") Sled a "Re-quest for llearing and Petition for Leave to inter ene" (" Petition").
llowever, the Petition was filed 8 days after the last date for filing i
provided for in the notice that was published in the federal Register.'
Petitioner should have be en aware of the need for timely filings because that need was explained in the federa/ Register notice.2 The procedural regulations require that we dismiss the petition be-cause Mr. Doherty has not shown good cause for his late filing.) So we shall dismiss the petition.
Additionally, we note with approval the discussion of standing con-tained in " Licensee's Answer to John F. Doherty's Request for a llear-ing and Petition for Leave to Intervene " July 12, 1985.* Petitioner has not stated a valid ground for intervention.
There is clear precedent that status as a ratepayer of the utility that i
owns a nuclear plant does not confer standing to intervene 5 There is no precedent supporting standing based on the consumption of fish or cran-berries (or other edibles), and such a claim is too sweeping as a basis for j
standing because it could be made by a vast army of consumers that might buy these products anywhere around the world?
i Furthermore, the fish and-cranberry ground for standing shares a defi-ciency we also find in the claim for standing based on residence 43 miles from Pilgrim. Boston Edison Company is not applying for a construction permit or an operating license for the Pilgrim Nucicar Power Station. If it were doing so, residence 43 miles from the plant might provide
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grounds for standing because there are scenarios under which effects t
l I SO Fed. Reg 20.971 (May 21,1985L The 30. day nouce perwd is bmdins pursuant to 10 C F R.
l t 2.714.
l 2 50 Fed. Reg. at 20,970.
3 Nonumely rdmgs may be entertamed only upon a balancmg of factors set furth in 10 C.F R.
j i 2.714(altl).
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4 The NRC stafr Responw to John F. Doheny's Peution for Leave to intervene, July 19.1985, did not address Apphcants' argument concerrsmg the relanonship between the speceric amendment being requested and the distance required for standmg. See statr Responw at 11 13.
5 Es.. corrland Geacrat Decirst Co. (Pebtte spnngs Nuclear Plant. Uruts I and 2), CLI.76 27, 4 NRC 610. 614 (1976).
6 standirig requires a showmg or mjury from the challenged action and that the mjury is within the tone of mterests protected by the statutes governing the proceedmg Sn. e g. at at 614-15.
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i might be felt at that distance from the plant.' However, Pilgrim already is licensed to operate. The license includes permission to operate the i
fuel pool, Under abnormal conditions, Boston Edison Company is al-ready permitted to operate its fuel pool with a criticality constant (K,,,
i.e., effective reactivity) of 0.95. Hence, the only increased risk of which i
Petitioner complains is that the maximum permissible K,, of the pool would be changed from 0.90 to 0.95 under normal operating conditions.8 This case concerns a request for a license amendment and it is not controlled by the same standing considerations that govern st.nding when an operating license is sought. Whatever the risk to the surround-ing community from a reactor and its c.sscciated fuel pool, the risk from the fuel pool alone is less and the distance of residence from the pool for j
which standing would be appropriate would, accordingly, be less. Conse-l quently, we do not consider residence 43 miles from this plant to be ade-j quate for standing. We need not decide how close residence might be 1
before standing would be established.
I in making this ruling, we note that we know of no scenario under which radiation attributable to the fuel pool would afTect a residence 43 miles distant from the fuel pool; and petitioner has not informed us of any such scenario. Even were there a risk of an accident that would dis-perse the contents of the fuel pool to such a great distance, we know of no way that permitting an increase of K,, during normal operations of the plant (to an upper limit already approved for abnormal operation) would increase the risk to Petitioner from such an incident. Nor has Peti-tioner suggested any such scenario to us in support of his questionable i
claim to hase standing.
[
Consequently, we conclude that the Petition must be denied both for lateness and for lack of standing.
l Order For all the foregoing reasons and based on consideration of the entire record in this matter, it is, this 19th day of July 1985, ORDERED:
t P
7 Ser Trearm. hak, 4whorrri (W atts Bar Suclear Plant. Units I and 21, AtAB-413. 5 NRC 1418 1421 n 4 (19773 istanding bawd on the distance or s rewdence could be granted for a residence 50 miles from a plant) and Ciewtond Dectrr /Bummaime Ca (Perry Nuclear Power Plant, Unas ! and 27 LBP-8124.14 NRC !?S.179 (1981) (the strength of a daim for standing based on the locahon of a ress-dence dimirmhes with the distance of the renderne from the plant) 8 Petneon at 2.
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r That the Request for Hearing and Petition for Leave to Intervene, 3
filed by John F. Doherty on June 21,1985,is dismissed.
Pursuant to 10 C.F.R. { 2.760 of the Commission's Rules of Practice, t
this decision will constitute the final decision of the Commission thirty (30) days from the date of its issuance, unless an appeal is taken in ac-cordance with 10 C.F.R. j 2.762 or the Commission directs otherwise.
See also 10 C.F.R. ff 2.785 and 2.786.
4 i
Tile ATOMICSAFETY AND LICENSING BOARD 4
I l'
Peter B. Bloch, Chairman i.
ADMINISTR ATIVE JUDGE
}
t Mr. Gustave A. Linenberger, Jr.
ADMINISTRATIVE JUDGE 1
i I
Dr. Jerry Harbour ADMINISTRATIVE JUDGE 4
Bethesda, Maryland i
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Cite as 22 NRC 101 (1985)
LBP 85-25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
i Helen F. Hoyt, Cha;; person i
Dr. Richard F. Cole l
Dr. Jerry Hart >our in the Matter of Docket Nos. 50 352-OL 50 353 OL I
(ASLBP No. 81 465-07-OL) l PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2)
July 22,1985
}
in this Partial Initial Decision, the Board finds in favor of the Appli-cant with respect to issues concerning offsite emergency planning for the State Correctional Institution at Graterford, and authorizes the issuance of a full-power operating license.
EMERGENCY PLANNING: EVACUATION TIN 1E ESTI51ATES Evacuation time estimates (ETE) need not inchvie an analysis of worst-case scenarios. Such an analysis is not contemplated by either the NRC regulations or NUREG-0654. ETEs are intended to be representa-tive and reasonable so that any protective action decision based on them will reflect realistic conditions.
101
E31ERGENCY PLANNING: EVACUATION TIATE ESTISIATES Neither NRC regulations nor NUREG-0654 establishes a standard for effectuating evacuations within a given time. An evacuation time esti-mate does not attempt to predict exact conditions during an evacuation.
Rather, it attempts to indicate the sensitivity of the analysis to a number of commonly occurring events.
FOURTII PARTIAL INITIAL DECISION (On Offsite Emergency Planning Contentions Relating
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to Graterford) l.
INTRODUCTION This is the Fourth Partial Initial Decision ("PID") issued by this Atomic Safety and Licensing Board (" Licensing Board" or " Board") in this proceeding. The First PID and Second PID decided all issues admit-ted for litigation before this Licensing Board, except offsite emergency planning contentions, and resolved them in favor of Applicant, Phila-delphia Electric Company (" Applicant").' The Third PID disposed of I
those remaining issues in favor of Applicant except for a contention ad-mitted tin behalf of the inmates of th'e State Correctional Institution at Graterford ("Graterford" or "SCIG"),2 The Fourth PID now disposes of the two Graterford issues in favor of Applicant.
1 In an Order dated June 12,1985, the Licensing Board ruled on the ad-missibility of the proposed contentions proffered by the Graterford in-mates. One contention with two bases was admitted on behalf of the Graterford inmates.3 Following discovery, 2 days of evidentiary hearings I
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3 The First PID was asued on March 8.1983, and resolved the htigated tuues in favor of Apphcam j
s mbsect to certain conditions. LBP 83-il,17 N RC 413 (1983), egd m port, rrmaaled m errr, AL A B-785
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20 NRC 848 (19848. The remanded issues relatmg to the appeal from the First PID were resobed in 9
favor or Apphcant without the need ror an evidemtary heanns. Memorandum and Order on Del.
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Aware's Remanded and Revised Environmental Contennons v.14 and V.16 (November 8,1984), ord.
ALAB-804,2l NRC $87 (1985). The second PID was nsued on August 29.1984. LBP-84 31,20 NRC i
446 (1984). sppralrm/ms, it decided all suucs m controversy which were prerequisste for autnoritauon of the low-power operatmg heenses requested by Applicant pursuant to 10 C F.R. t 50 57(c) The Third j
Pf D decided all otYmie emergency planmns contennons in Apphcant's favor, subject to two condiuons whwh have noe been met. as serified by the Federal Emergency Managemem Agency (" FEMA").
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2 3,e ALAg.806,21 NRC !!83 (1985).
3 Order Admituns Certam Revned Coniefmons or the Oraterford inmates and Denyms Others Oune 12.1985) (unpubhsned).
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s on the contentions were held on July 15, 1985, and July 16,1985, in i
Philadelphia, Pennsylvania..
6 Prior to the hearing. ihe Board and parties participated in a conference call regarding the hearing schedule and procedures to be followed. The parties identified their witnesses and agreed to make arrangements for their depositions. The farties further agreed that proposed findings would be made by way of oral argument, supplemented concurrently by
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written findings if the parties so desired. Memorandum and Order -
Graterford Contentioris and Hearing Schedtile, slip op. at 3 (June 318, i-
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1985). As agreed, the Board heard oral argument at 1:00 p.m. on July l
17,1985.
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At the evidentiary, hearing, the Board heard the testimony of seven 1
witnesses and received into evidence the deposition transcript of Robert L Morris. Except for Mr.' Morris, all the witnesses appeared and were subject to, cross-examination. Intervenor offered the deposition of Mr.
s Morris even though he was not present at the hearing. At the end of Mr.
t Morris' deposition on Juiy' 3,1985, Intervenor proposed, for the first tdne, that the witness' ceposition testimony be received into evidence lt
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'in lieu of live testimony. Deposition of Robert L Morris, ff. Tr. 21,013, at 73-74. The other parties did not agree to this procedure because there I
had been no proper notice.given or legal basis stated for the proposal.
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After a discussion at the hearing on the admissibility of the Morris depo-sition, the parties agreed not to object to the admissibility of this testimo-i e
ny, even though the witness was not present for cross-examination, to j
avoid any potential claim of error (Tr. 21,009-13).
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4 II. FINDINGS OF FACT CONTENTION OF THE1%AIA TES A T THE STA TE CORRECTIONA L l
INSTITUTION A TGRA TERFORD l
i There es no reasonable assurance that the Radiological Emergency Response Plan for the State CorrectionalInstitute (sic) at Graterford will protect the inmates at said institution in the evtxt of a nuclear emergency at the Limerick Generating Station.
A.
Basis C Traimnt i
There is no reasonable assurance the emergency response training will be ofTered to civihan person cl who wdi be involved in the emergency response plans. such as cisdian bus and ambulance dnvers.
The inmates contead that emergency response training be offered to civihan per.
sonnel uhiwdl be assistmg the Bureau of Corrections, the state police, and the Na-tional GJard m the appropriate response to an accident at Limerick Generatmg Sta.
' ecn. Pursuant to further discussions, held during th' closed conference in liarris.
c burg, the Commonwealth of Pennsylvania has attempted to address the inmates' j
concern by the offerms of said emergency response traming to civihan bus dnvers.
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The method by which the Common *calth has suggested to achiese this purpose is a letter to all bus prouders whwh is attached to the Commonwealth's " Answer of the Commonwealth of Pennsylsama to Proposed Contentions of the Graterford inmates with Regard to the Esacuation Plan" dated April 4.1985 as Exhibit B. This letter.
addressed to the employers of the bus drners, offers a two hour course expla:nmg the proper use of dosimetry by the Pennsylvama Emergency Management Agency
("PEM Al. The mmates fmd this letter madequate m sescral respects. Initially, there is no guarantee that the employees will eser recene any notice of the oppor-tunity to asail themselves of this trammg program. Furthermore. the traming enu-stoned by the mmates was a broader, more comprehensne program. such as the trammg otTered to the whool bus drners. See the Third Partul initul Decision on OITsite Emergency Planning by the Licensmg Board. Section 333, page 155, which reads. "!tlhe traming program for bus drners otters a general orientation and oser-stew of radiation prmciples. emergency management principles. susceptibility of chddren to radiaison and additional background mformation." The mmates centend that the two hour course olTered by PEM A is not as comprehensne as the one of.
rered to the bus droers of schoolchildren and is therefore madequate in this respect.
Training 1.
Planning Standard O of NUREG-0654/FEhfA-REP-1, Rev. I and 10 C.F.R. f 50.47(b)(15) call for radiological emergency response training to be "provided to those who may be called on to assist in an t
l emergency." Furthermore, Criterion 0.1 provides that "each organiza-j tion shall assure the training of appropriate individuals." Asher/Kinard, ff. Tr. 20.995, at 1.
2.
PEh!A will be responsible for conducting the training of the civil-ian bus companies and ambulance companies (Taylor, ff. Tr. 20.856, at 3; Asher/Kinard, ff. Tr. 20,995, at 1).
Offer of Training i
i 3.
Donald Taylor, Director of Training and Education for PEh1 A, testified that " civilian personnel" within the meaning of this contention are those non-State employees identified in the Radiological Emergency Response Plan (" plan") for Graterford who would have a role in the emergency response in the event of a radiological emergency at Limer-ick. This includes drivers employed by civilian bus and ambulance companies which have agreed to furnish vehicles upon request to assist in an evacuation of Graterford. Taylor, fr. Tr. 20,856, at 2.
4.
Reasonable efforts are being made to offer training to civilian personnel who would be involved in an evacuation of Graterford. For example, on April 4,1985, Afr. Taylor wrote each of the six bus compa-
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nies that would transport prisoners from Graterford in an evacuation 6-and offered dosimetry and decontamination training at no expense for 104 l
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drivers who would be insolved. To date, no responses from those six companies have been received. Mr. Taylor has made plans to visit each of the bus companies personally to urge them to take advantage of this training (Taylor, ff. Tr. 20.856, at 3-4; Taylor, Tr. 20,863. 20,877). Am-butance providers will be offered training in the same manner as bus companies, i.e., by letter and personal visit (Taylor, ff. Tr. 20,856, at 4).
Personal visits to the bus and ambulance companies will occur in late.
July or early August 1985 (Taylor, Tr. 20,879-80).
5.
Any Training sessions that are conducted for bus and ambulance drivers will be scheduled in a place and at a time convenient to the driv-ers themselves (Taylor, IT. Tr. 20,856, at 4; Asher/Kinard, ff. Tr.
20,995, at 2).
6.
The initial traming and/or refresher training will be made availa-ble annually to the drivers of each bus and ambulance company having a
-I responsibility for an evacuation of Graterford (Taylor, ff. Tr. 20,856, at 5).
Nr.ture of Training 7.
The training to be ofTered to the civilian bus drivers and ambu-lanc. drivers who would assist in evacuating the SCIG would include a general orientation and overview of radiation principles, emergency
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management principles, and additional background information, as well as instruction on the use of dosimeters and survey meters (Taylor, Tr.
20,860-61; Taylor, ff. Tr. 20,856, Plan of Instruction Number Seven at l 4).
8.
Bus and ambulance drivers will be provided self-reading dosime-try and themoluminescent dosimeters, which would be read afterwards.
Data will be recorded. Taylor, Tr. 20,872 73.
9.
The training program ofrered by Pennsylvania Emergency Management Agency ("PEM A") is essentially identical to that offered by Energy Consultants ("EC") to other bus drivers who would partici-pate in an evacuation of the plume exposure pathway emergency plan-ning zone for Limerick ("EPZ"), which this Board previously found to be acceptable (Taylor, ff. Tr. 20,856, at 6; Taylor, Tr. 20,860-86; see Third PID, LBP-8514,21 NRC at 1318). Training on decontamination monitoring procedures is also included, however, on the remote possibil-ity that bus and ambulance drivers might become involved in some manner with decontamination monitoring (Taylor, ff. Tr 20,856, at 2).
- 10. The training program for school bus drivers provided by EC
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through the auspices of the Applicant was approved by Mr. Taylor, the 105
, Director of Training and Education for PEA 1 A, prior to its implementa-tion in the various counties in the Limerick EPZ (Taylor, IT. Tr. 20,856, at 5-6). Further, PENIA certiGes the EC instructors as qualiGed to give such instruction (id.; Taylor Tr. 20,861). Consequently, the Board be-lieves Mr. Taylor is in a position to compare the EC course to that being offered by PEM A in this instance (id.).
- 11. The plan of instruction for these bus and ambulance drivers covers a full spectrum of topics, including gosernment response to disas-ters, levels of radiation during an incident at a fixed nuclear facility, proper use of dosimetry, and decontamination monitoring procedures (Taylor, IT. Tr. 20,856, at 6; and Plan of instruction Number Seven, IT.
Tr. 20,856). The only significant difference between this course and the EC program is that the latter provides for a "public relations" lesson, which explains how a nuclear generating plant operates and the safety of such a facility (Taylor, IT. Tr. 20,856, at 6).
- 12. It is the judgment of Federal Emergency Management Agency
(" FEMA") that emergency response training should be tailored to the individual's expected duty in responding to an emergency (Kinard, Tr.
21,000).
- 13. The bus and ambulance driver's role is limited to driving the bus or ambulance during an evacuation of the SCIG (Kinard, Tr. 21,005; l
Taylor, Tr. 20.869).
- 14. Training in inmate custody and control is unnecessary. Drivers will only be required to drive their buses or ambulances. The Depart-ment of Corrections will provide the stalT necessary to ensure control of the inmates. Taylor Tr. 20,860, 20,868 69; Asher, Tr. 20,999.
- 15. Any additional concerns raised by the drivers during training, such as security precautions for the protection of the drivers, will be ad-j dressed by PEMA during the training sessions (Taylor, IT. Tr. 20,856, at 6; Asher/Kinard, IT. Tr. 20,995, at 2; Asher/Kinard, Tr. 20,999 21,000).
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- 16. Graterford inmates have also raised a concern about whether there is a " guarantee" that training will be ofTered to bus and ambulance drivers, since no financialinducement has been offered for participation f
in the training (Case, fr. Tr. 20,930, at 5).
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- 17. In his testimony, Major John D. Case's main concern within the scope of this contention was whether bus drivers would have an incen-l tive to attend the training session (Case, Tr. 20,938-39), lie did not ad-dress in any way the adequacy of the training to be olTered bus and am-bulance drivers by PEMA.
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- 18. Notwithstanding his belief that incentives should be offered to l
civilian bus drivers, Major Case expressed no basis for believing that i
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civilian bus drivers would not accept training (Case, ff. Tr. 20,930, at 5; Case, Tr. 20,939).
- 19. At the outset, the Board observes that our mandate does not m-clude a standard that calls for a " guarantee" in the emergency planning area. Rather, the standard to be applied for emergency matters under the Commission's regulations is whether there is " reasonable assur-ance." See 10 C.F.R. s 50.47.
- 20. There is nothing in the emergency planning guidance (NUREG-0654/FEh! A REP-1, Rev.1) that requires the provision of financial in-l centives to anyone receiving training (Asher Tr. 21,001). PEh1A's j
Director of Training and Education does not believe that the bus and j
ambulance drivers will not accept training because of the lack of financial incentives (Taylor, Tr. 20,869).
- 21. Based upon training given to offsite emergency response person-nel and volunteers for other nuclear power plant sites in Pennsylvania and information supplied by PEh! A concerning Graterford and Limerick, FEh1 A concluded there is reasonable assurance that emergency response training will be offered to civilian personnel expected to be involved ir.
I the implementation of the Department of Correction's emergency plan for Limerick ( Asher/Kinard, ff. Tr. 20,995, at 2).
- 22. Esen if such training were not received by bus and ambulance i
drivers assisting in the evacuation of Graterford in the event of an emergency at Limerick, those drivers would not be expected to do more than what they would do in carrying out their routine work assignments, i.e., drive a bus or ambulance (Taylor, Tr. 20,866; see Third PID, LBP-85-14,21 NRC at 1320). Thus, their ability to function during an emergency would not be impaired by riot having received traming (Tay-lor, Tr. 20,874). The FEh! A witnesses agreed that drivers could perform their function without training ( Asher, Tr. 20,998).
- 23. PEh! A has determined that the training offered to the bus drivers and that will be olTered to the ambulance drivers will adequately prepare the drivers to respond to the Graterford facility during a radiological emergerey at the Limerick Generating Station (Taylor, fr. Tr. 20,856, at 6).
- 24. Based on (1) the fact that the offered training has been provided at other sites in Pennsylvania; (2) the information provided by PEh1A to FEh! A concerning how training will be offered to the drivers support-ing the evacuation of the SCIG; and (3) the assurances of PEN!A and Afr. Taylor that personal contact will be made with the bus and ambu-lance companies, FENIA has concluded that there is reasonable assur-ance that emergency response training will be offered to civilian bus and ambulance drivers supporting the SClO radiological emergency response 107
plan (Asher/Kinard, ff. Tr. 20,995, at 2; Kinard, Tr. 20,997 98; Asher, Tr. 21,003-04).
- 25. Additionally, the Board 6nds that, based on this record, the PEhf A's letter of April 4,1985, to the bus providers and 51r. Taylor's commitment to personally visit each of the bus and ambulance compa-nies assisting in the evacuation of the SCIG provides reasonable assur-ance that the drivers will receive notice of the emergency response train-ing to be provided by PEh!A.
- 26. The Board has reas =pble assurance that training will be oiTered and accepted by bes and anblance providers. The Board also Onds that based on this record there is Peasonable assurance that the training to be provided by PEh!A is as comprehensive as the training offered to the school bus drivers. The Board is further satis 6ed that the limited re-sponsibility which drivers would be called upon to perform in an actual emergency involves no more than the driving assignments they perform on a daily basis. Accordingly, even if drivers for Graterford inmate evac-uation have not received training, overall bus and ambulance provider response and the ability to implement an evacuation at Graterford would not be impaired. Aforeover, drivers could be quickly instructed in the use of dosimetry at the time of an actual emergency before carrying out their assignments. Taylor, Tr. 20,873.
B.
Bas s E-Estimare of Tumr ofEmuation There is no reasonable assurance that the estimated time of evacuation of sia-to-ten houre can be achieved..
Appendix 4 of NUREG-0654 provides details regardmg esacuation time estimates within the plume exposure pathwsy.11 C. Sprreal facdity Ayu/anons states, " An esti-mate for this special population group shall usually be done on an institution by msti-tution basis. The mear's of transportation are also highly mdmdualued and shall be described."Section IV B. of Appendix 4 entitled Aferhodolop states. "Itjhe method for computing total esacuation time shall be specified. Two approaches are accept-
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able. The simplest approacn is to assume that esents are sequential. That is to say, i
for example, that no one begir.s to move until all persons are warned and prepared to leave before anyone starts movms, The time is estimated by simply adding the i
maximum time for each component. This approach tends to overestimate the evacu.
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ation time. The second approach, whKh is more complet and will be discussed fur-ther, is to combine the distribution functions for the various evacuation time components This second approach may result in reduced time estimates due to a more realistic assumption." The mmates contend that the failure to specifically ad-dress this estimated time of evacuation m the plan and the mere mention m a foot-note of the Applicant's request for an exemption fails to meet the criteria as suggest-ed by Appendix 4. The inmates are concerned that the sis.to-ten hours estemate does not mclude a breakdown of the various sequential events as prescribed in NUREG-0654, Appendix 4 4 IV.B. necessary to accomplish the task. The mmates contend that such a breakdown is necer,sary.
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- 27. Appendix 4, NUREG-0654/ FEMA-REP-l, Rev.1 (November 1980) is the Commission's guidance which goserns the preparation of i
evacuation time estimates for special facilities (Urbanik, Tr. 20,974-75).
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Section ll.C of Appendix 4, SUREG-0654, provides under special facili-ty population that "[aln estimate for this special population group shall usually be done on an institution-by-institution basis" (NUREG-0654 at 4-3).
- 28. Dr. Thomas Urbanik one of the principal authors of Appendix 4, NUREG-0654, explained that Appendix 4, NUREG-0654, did not intend evacuation time estimates for special facilities to include analysis of worst-case scenarios (Urbanik, Tr. 20,976, 20,979-80). Rather Appen-dix 4, NUREG-0654, intended such estimates for special facilities to pro-vide some data points from which decisionmakers can make decisions (id.). Further, the intent'of Appendix 4, NUREG-0654, is for evacuation time estimates to present representative evacuation times for fair and ad-verse weather conditions which can be used by decisionmakers (Urba-nik, Tr. 20,976-77, 20,979-80).
- 29. The primary purpose of evacuation time estimates is to serve as a tool in the protective action decisionmaking process by providing a framework within which decisionmakers can incorporate input on evacu-ation characteristics and traffic flows at the time of an actual emergency.
l As such, pursuant to NUREG-0654, time estimates are intended to be representalise and reasonable so that any protective action decision based on those estimates would reflect realistic conditions. An overly conservative estimate could result in an inappropriate decision. Urbanik,
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Tr. 20,979-80. As explained by Dr. Urbanik,it was the intention of plan-ners to rely upon the judgment of authorities responsible for particular special facilities in estimating evacuation times because of their special-ized knowledge and expertise in operating those facilities (Urbanik, Tr.
20,975, 20,98I).
- 30. Neither NRC regulations nor NUREG-0654 establishes a stand-ard for elTectuating evacuations within a gisen time. An evacuation time estimate study does not attempt to predict exact conditions during an evacuation. Rather, it attempts to indicate the sensitivity of the analysis to a number of commonly occurring events. /d.
Development of Evacuation Time Estimate
- 31. As part of its emergency planning effort for Graterford, the Department of Corrections undertook an evacuation time estimate anal-ysis, in so doing, it worked with the Graterford staff and developed esti-mates based upon past experience as to how long it would take to secure 109
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the prisoners, assemble them, load buses, and transport inmates from the institution. Zimmerman, IT. Tr. 20,763, at 3; Zimmerman, Tr.
20,771.
- 32. The Board finds that the issues of whether the estimated time of evacuation (ETE) of 6 to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> developed by Commissioner JelTes can be achieved and whether there is an adequate basis for that esti-mate's methodology are moot for several reasons. First, as we noted ear-lier (see Board Finding 30), neither the Coramission's requirements nor guidance established a standard for effectuating evacuations within a given time. Second, the Bureau of Corrections for the Commonwealth subsequently undertook an independent analysis of the components and time needed to complete an evacuation of the SCIG. Zimmerman, IT.
Tr. 20,763, at 2. This analysis resulted in a revised ETE for Graterford of 8 to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> which is within the range of and consistent with the 6-to 10-hour ETE developed by Commissioner JelTes (Zimmerman, IT. Trc 20,763, at 1-2, 8; Tr. 20,768-69). The methodology for the revised ETE of 8 to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> has been litigated and the record shows, as demonstrat-ed below, that the methodology was based on reasonable assumptions regarding the evacuation of the SCIG. Accordingly, the Board does not find that the revised ETE for Graterford of 8 to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> requires any j
changes in the SCIG's emergency planning or preparedness.
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- 33. To illustrate the methodology it used to determine the evacua-tion time for Graterford, the Department of Corrections developed a "How chart" based upon previous experience with other emergencies and the day-to day operation of the prison. This Oow chart details the ac-tions to be taken in evacuating the prison (e.g., calling off-duty person-nel, assignmg vehicle loading teams) and the times necessary to carry out these actions. On this basis, the Department of Corrections deter-mined that it would take approximately 8 to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> to evacuate the prisoners. Zimmerman, fT. Tr. 20,763, at 3; 7.immerman Flow Chart.
i The Board finds this estimate reasonable and in accordance with the guidance of NUREG-0654, Appendix 4 (Zimmerman Flow Chart).
i 34 There are certain times where the inmates at Graterford would already be locked down, such as at night, before lunch and before I
i dinner (Zimmerman, IT. Tr. 20,763, at 3-4).
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- 35. In the event an evacuation of the SCIG were necessary, the in-mates would be noti 0ea via the public address system, which is heard throughout the insthution, that they should pack their personal effects in a pillowcase, that they would be permitted to take only that which l
would fit on that person and in the pillowcase, and only those health and comfort items deemed necessary for their trip and for their relocation i
(id.). Further, the inmates will be informed through an inmate handbook l
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provided to esery inmate about what to do to assist in their evacuation (id.). Thus, the Board finds that Major Case's concern about the lock-down time being extended because the inmates will lack information about the evacuation (Case, IT. Tr. 20,930, at 3; Case Tr. 20,946-47) is without merit. Major Case acknowledges that the inmates would be likely to cooperate if they are provided information about the evacuation (Case, Tr. 20,942, 20,946-47). Moreover, based on Superintendent Zim-merman's past experience at the SCIG, the inmates cooperate with SCIG staff when the inmates recognize it is for their benefit during emergency situations. This has been the case in the past with fire drills
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at the SCIG. Zimmerman, IT. Tr. 20,763, at 3.
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Vehicle Artisal Time i
- 36. The estimate for the vehicle arrival time portion of the revised ETE is 2 to 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> (Zimmerman, IT. Tr. 20,763, at 4). This estimate is based on routes travelled regularly by SCIG buses and vans when moving from one facility to another (/d.). If the radiological emergency developed gradually, the SClO officials would already have the buses on site at Graterford. On the other hand, if the radiological emergency de-veloped more rapidly, it might take between I and 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> for the bus -
companies to get their vehiclea to the support facilities and then to travel to Graterford. /d. This is based on the drivers having the buses at I
the support institutions (al, at 5).
- 37. On the time of arrival of the oft duty personnel, the SClG olTi-cials developed an estimate of I to 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> maximum for their arrival under average conditions and 2 to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> maximum under adverse con-ditions (/d.). This estimate is based on the SCIG's experience over the past several years involving emergency situations where they have had to call in oft duty personnel Od.). Some of the personnel would begin to arrive almost immediately, but to get the teams needed to load the vehi-l cles it will take I to 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> (id.). All of the oft-duty personnel would not be necessary to implement the SCIG evacuation plans, only the number of personnel indicated in the SCIG plans would be necessary to move the inmates from their cells to the staging area for loading (/d.).
Pris:ner Assembly and Vehicle Loading
- 38. The SClO officials have assigned designated personnel to be vehicle loading teams, that is, they would be at the staging areas. They have designated fise of those areas in various places in the institution to which inmates would be funneled and boarded on the buses. Loading i11 i
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k team personnel are required to see that the mmates get on the proper
. vehicle. /J.
- 39. In developing the resised ETE for the SCIG, the SCIG omeials designated different classes of inmates dependmg on the amount of security required (Zimmerman, IT. Tr. 20,763, at 6-7). For the revised ETE, Class 4 and 5 inmates are those inmates requiring the least amount of security at the institution. In fact, many of these inmates live outside the walls of the institution and work outside the walls. Some of them go home on furioughs periodically. Class 3 inmates are those in-mates designated as the general population. They are free to move about the inside of the institution depending on their work assignments, where they live, and in which program they are involved. All of the SClO stalT who would be insolved in moving these inmates have been trained in the use of security equipment and use it on a regular basis.
The SClO omcials have designated special teams that go on the blockk,
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the numbers are determined by the size of the block and the amount of security needed. These teams would efTectively remove the inmate from 4
his cell, apply the appropriate security device and see him on his way to the appropriate staging areas. The teams can move from cell to cell be-cause omeers will be running a line from the block that is bemg evacuat-ed onto the staging area. The inmate will be directed to go and follow that line of omcers so that the inmates in effect would be walking to the staging areas for boarding the buses in a smooth, uninterrupted flow. /d.
l The amount of time allocated for these Class 3,4 and 5 inmates indicates l
that more than one inmate at a time in each of these classes will be get.
ting security restraints and being loaded. There will be teams of omcers doing this simultaneously on several blocks and moving right down the block on all of the ranges and tiers. Ranges and tiers are the difTerent parts of the cellblock. /J. More time was allocated for loading Class I and 2 inmates _ because these inmates are those requiring the highest l
degree of security. These are inmates in restricted housing units or in disciplinary lockup or administrative custody. The reason more time is allowed to restrain and load them is because of additional security devices that may be used and the additional security required in moving i
them from their cells to the vehicles. flowever, there are several teams
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working, depending upon the location and the physical plant, and the
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time estimate is based on the fact that the omcers are familiar with using the restraints and moving the inmates. /d. at 7.
- 40. Past experience in emergency situations shows that off duty per-sonnel will arrive within I to 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> after notification. Superintendent Zimmerman testified that he had experience in the development of plans for all types of emergencies at the State Correctional Institutions at 112 1
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lluntington and Camp flill, as well as the State Regional Correctional Facility at hiercer. Zimmerman, Tr. 20.766. Additionally, Graterford's (nonradiological) emergency plan, which is tested at least twice a year, requires a demonstration of the call-in system. These tests also establish that off-duty personnel will arrive within I to 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> (Zimmerman, IT.
j Tr. 20,763, at 5; Tr. 20,808, 20,839). Not all olT-duty personnel are re-quired to implement the evacuation plan (Zimmerman, IT. Tr. 20,763, at 5; Zimmerman, Tr. 20,809, 20,840). Superintendent Zimmerman testi-fled that, as a practical matter, only a maximum number of 300 stafT would be called to assist in an evacuation (Zimmerman, Tr. 20,840-42).
- 41. If one of the cellblocks refuses to lock down or in some other way tries to impede the evacuation of the institution, the efTect on the evacuation would be minimal to none. This is because the SClO omeials i
handle emergency situations on an almost regular basis, and the fact that Graterford is a maximum security correctional facility. htoreover, a team of trained personnel, the Emergency Response Team, would be on hand and would be ready to respond to any type of situation like this.
Areas inside the mstitution can be isolated, and once isolated, the re-quired personnel can be moved into that area, and then do whatever is
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necessary to restore order. /d. at 7. The other inmates could still be evac-uated (id.).
- 42. Intervenor tried to discredit the use of a 30 minute inmate lock-down time estimate by citing various past incidents in which lockdowns i
had taken longer. The evidence showed, however, that those longer timeframes for lockdowns had occurred primarily during power outages f
before the installation and use of an emergency lighting system in 1984.
Zimmerman, Tr. 20,782, 20,843, 20,849). Since that time, partial power losses hase occurred, but have never interfered with prison operations, includmg lockdowns, which have never taken more than 30 minutes (Zimmerman, Tr. 20,849 50).
- 43. On the basis of this information, intervenor's witness, Stajor Case, agreed that a 30-minute lockdown time is realistic (Case, Tr.
20,946-47). lie felt that if there was a good educational program at Gra-terford for both the omcers and prisoners explaining what should be done in the event of an emergency at Limerick and why those actions were being taken, the prisoners would cooperate and there would be no problem in completing lockdown within 30 minutes, or for that matter, completing any other action that would have to be taken within the time-frame calculated by the Department (Case, Tr. 20,947). hiajor Case i
raised no concern regarding the adequacy ofinformation that would be available to inmates if an emergency occurred (Case, Tr. 20,938, 20,942, 20,946).
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- 44. At the hearing on July 16, 1985, Slajor Case stated that a one.
page addendum to the prisoners' handbook would be adequate (Case, Tr. 20,938). The Board finds that hiajor Case's concerns hase been ade-quately addressed by plans to issue an addendum to the inmate hand-book, which is given to every prisoner, telling them what to expect in an evacuation (Zimmerman, IT. Tr. 20,763, at 4; Zimmerman, Tr.
20,833-34). htoreoser, gisen the travel time it will take most buses to reach Graterford from their respective depots, which is greater than I hour, the time required to lock down and count inmates, a total of I hour, is not a critical path item (Lieberman, IT. Tr. 20,956, at 4).
- 45. The numbers of the times of evacuation for the vans, ambu-
?
lances and buses were arrived at by evaluating the actions that would take place during the evacuation. Certain actions will take place at the same time. The SCIG omcials can begin lockdown, request the vehicles and call in off-duty personnel at the same time. /J. at 7-8. As noted ear-lier, inmates will be restrained, loaded into vehicles and removed as the vehicles arrive on site. To arnve at the total of 8 to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />, the SClO omeials reviewed the buses that would be coming at what time and how many inmates would be loaded at what times. /d. They then added a short period of time for travel out of the evacuation area. Inmates will be sent out of the evacuation area in a reasonably direct route that will not take them past Limerick. /d.
- 46. Contrary to Graterford inmates' assertions, any ongoing evacua-l tion of the general populace from the EPZ would not delay the arrival of buses and ambulances at Graterford. The Graterford Superintendent testified that the development of the Graterford plan was coordinated with PEh!A to ensure that routes were selected such that evacuating traf-fic of the general public would not interfere with vehicles travelling to Graterford. Zimmerman, Tr. 20,803-05, 20,815 16,20,844 45.
- 47. Buses would be loaded as they arrive and sent out to the support institutions, and the buses are expected to come in at varying times j
since they are travelling different distances (Zimmerman, ff. Tr. 20,763, at 8), it is unlikely that the evacuation could take longer than the 8 to 10 i
hours since the estimate used figures based on experience, including ex-perience with emergency situations (/d.). Sforeover, the inmates will l
have been provided information with respect to an evacuation in the
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inmate handbook and will be kept abreast of developments during an i
incident (id. at 4; Zimmerman, Tr. 20,833 34).
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Evaluation of Evacuation Time Estimates
- 48. Based on a careful analysis of the assumptions and.nethodology underlying the revised ETE for the SClO by FEMA's exrert in tralT>c j
engineering and transportation planning (Lieberman, fr. Tr. 20,956 at j
1-11), FEMA's expert concluded that the revised ETE for the SCIG is certainly reasonable and conservative (id. at 8). Furthermore, the Gra-i.
j terford inmates' witness, Major John D. Case, acknowledges that it is possible to achieve the tasks identified in the revised ETE for the SCIG within the 8-to 10 hour1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> timeframe (Case, fr. Tr. 20,930, at 4; Case, Tr.
a j -
20,934-37).
- 49. Any projected increase in the number of inmates at Graterford i
would hase no effect on the evacuation time estimate of 8 to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />.
l Any increase in the number of inmates would be met by a concomitant l
increase in staff and support resources (Zimmerman, Tr. 20,831).
l jl
- 50. Finally, Mr. Robert Morris, a witness for the inmates, cited his concerns that the ETE should include a combination of worst case situa-I; tions such as traffic accident analysis, wind condition analysis, dif.
l ferences in gap acceptance times in a panic situation and various combi-nations of weather conditions (see general /r Morris Deposition. IT. Tr.
l 21,013, at 41 $$), Mr. Morris stated that he was not familiar with i
NUREG-0654 or any other emergency planning regulations for nuclear j
power plants, and he did not think it necessary (id. at 38 39,49). Dr. Ur-t l
banik has adequately explained why worst case scenarios are not ap-i propriate under Appendix 4, NUREG 0654, for consideration in devel-l oping an ETE for a special facility (Urbanik, Tr. 20,976-77, 20,896).
l Therefore, the Board finds Mr. Morris' testimony on this matter lacking any probative value.
)
- 51. The Board finds that the evacuation from the EPZ should pro-j ceed rapidly. Graterford is approximately 8.3 miles from Limerick at the closest point. It is thus reasonable to conclude that the travel distance i
from Graterford to the EPZ boundary is only a very short distance be-1 I
. cause "a reasonably direct route" out of the EPZ will be taken. Accord-
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ingly, actual travel tine of loaded buses out of the EPZ will be very j
brief. Zimmerman (f. Tr. 20,763, at 8; Lieberman, ff. Tr. 20,956, at 5 6.
- 52. Based on this record, the Board finds there is nothing in the Commission's emergency planning requirements or guidance that re-quires the estimated time for evacuating a special facility, such as the SCIG, to be included in the radiological emergency response plan for that special facility (sce 10 C.F.R. l 50.47; Appendix E,10 C.F.R. Part
[
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50; NUREG-0654/ FEMA REP-1, Rev.1 (November 1980).
- 53. The Board finds that the revised ETE for the SClO has adequate-ly identified the various sequential events necessary to accomplish an
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evacuation of Graterford. Finally, the Board Gnds that based on this record the revised ETE of 8 to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> is consistent with the Commis-sion's guidance established in NUREG-0654, Appendix 4.
III. CONCLUSIONS OF LAW In reaching this decision, the Board has considered all the evidence of the parties and the entire record of this proceedmg on the admitted con-tention including all proposed Ondings of fact and conclusions oflaw pre-sented by the parties and oral arguments of counsel. Based upon a review of that record and the foregoing Findings of Fact, which are sup-ported by reliable, probative and substantial evidence, the Board, with respect to the issues in controversy before us, reaches the following con-
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clusion pursuant to 10 C.F.R.
The SCIG emergency response plan meets the requirements of 10 C.F.R. { 50.47, and Appendix E to 10 C.F.R. Part 50, as well as the criteria of NUREG-0654, and provides reasonable assur-ance that adequate protective measures can and will be taken in the event of a radiological emergency.
IV. ORDER in accordance with the Atomic Energy Act of 1954, as amended, and the Commission's regulations, and based on the Gndings and conclu-sions set forth in the Third PartialInitial Decision on Offsite Emergency Planning and in this Decision, the Director of Nuclear Reactor Regula-tion is authorized to issue a full-power operating license for the Limerick Generating Station, Units I and 2, consistent with the Board's decisions in this case and upon making requisite Gndings with respect to matters not embraced in the Third Partial Initial Decision on Offsite Emergency Planing or in this Decision.
Pursuant to 10 C.F.R. { 2.760(a) of the Commission's Rules of Prac-tice, this Fourth Partial Initial Decision will constitute the Onal decision of the Commission forty-five (45) days from the date of issuance, unless an appeal is taken in accordance with 10 C.F.R. { 2.762 or the Commission directs otherwise. See also 10 C.F.R. (( 2.764, 2.785 and 2.786.
Any party may take an appeal from this Decision by filing a Notice of Appeal within ten (10) days after service of this Decision. Each appellant must Ole a brief supporting its position on appeal within thirty 00) days 116 i
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after filing its Notice of Appeal (forty (40) days if the Staff is the appel-lant). Within thirty (30) days after the period has expired for the filing and service of the bnefs of all appellants (forty (40) days in the case of the StafD, a party who is not an appellant may file a brief in support of or in opposition to the appeal of any other party. A responding party shall file a single, responsive brief regardless of the number of appellant i
briefs filed. See 10 C.F.R. s 2.762(c).
i Tile ATOMIC SAFETY AND t
LICENSING BOARD I
lielen F. Iloyt, Chairperson
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ADMINISTR ATIVE JUDG E l
Richard F. Cole l
ADMINISTRATIVE JUDGE i
4 Jerry llarbour l
ADMINISTR ATIVE JUDGE i
Dated at Bethesda, Maryland, I
this 22nd day of July 1985.
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Cite as 22 NRC 118 (1985)
LBP-85 26 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Dr. Robert M. Lazo, Chairman Dr. Richard F. Cole Dr. A. Dixon Callihan In the Matter of
' Docket Nos. STN 50 529 OL STN 50 530 OL l
(ASLBP No. 80-447-01 0L)
ARIZONA PUBLIC SERVICE COMPANY, et al.
(Palo Verde Nuclear Generating Station, Units 2 and 3)
July 22,1985 b
ORDER DISMISSING PROCEEDING i
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On July 25,1980, the U.S. Nuclear Regulatory Commission published in the Federal Register a notice of receipt of an application for facility operating licenses for Palo Verde Nuclear Generating Station, Units 1, 2, and 3 and notice of opportunity for hearing (45 Fed. Reg. 49,732).
The July 25,1980 notice is a clarification of an earlier notice rublished in the federalRegister on July 11, 1980 (45 Fed. Reg. 46,941-43). Such licenses would authorize Arizona Public Service Company, Salt Riser Project Agricultural Improvement and Power District, Southern Califor-nia Edison Company, El' Paso Electric Company, Public Service Compa-ny of New Mexico, and the Southern California Public Power Authority
(" Joint Applicants") to possess, use and operate Palo Verde Nuclear Generating Station, Units I,2 and 3, which are three pressurized water nuclear reactors (the " facilities") located on the Joint Applicants' site in 118
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hlaricopa County, Arizona, approximately 36 miles west of the City of Phoenix.
In response to that notice, his. Patricia Lee flourihan (hereinafter "In-tervenor"), submitted a timely Petition for Leave to Intervene and Re-t quest for llearing. The petition was granted by this Atomic. Safety and Licensing ~ Board (hereinafter " Board") which ordered that a he,' ring be held. The Board approved the admission of five of the Intervenor's con-i tentions and allowed the Intervenor the opportunity to file additenal contentions respecting emergency planning at such time as the emerger-I cy plans were prepared. Two of the five admitted contentions were sub-l sequently withdrawn by the Intervenor, and two of the remaining admit-ted contentions were disposed of by the Board's Memorandum and Order, March 17,1982 (unpublished), granting the motions for sum-mary disposition filed by the Joint Applicants and the StafTof the Nucle-at Regulatory Commission (hereinafter "NRC Staff"). The Intervenor l
submitted no emergency planning contentions.
An evidentiary hearmg was conducted in April, May and June 1982, by the Board on the remaining contention which placed in issue whether there is an assured supply of usable treated municipal effluent for all three Palo Verde units for the first 5 years of operation. At the onset of the hearing, the contention was expanded to include the questions of r
the efTect on the supply of effluent of a lower quality than expected and the relationship of the supply of efTluent to the safety of the operation of the Palo Verde units. The evidentiary hearing on the Intervenor's ex-panded contention was closed on June 25,1982.
On October 14, 1982, the West Valley Agricultural Protection Coun-cil, Inc. (hereinafter " West Valley") filed an untimely petition for leave' to intervene and request for hearing. Such petition placed in issue (1) the efTect of foliar depositions of salt from the drift emitted from the Palo Verde cooling towers and other potential sources of drift from Palo Verde on the productivity of agricultural crops grown in the vicinity of Palo Verde, and (2) the need for the preparation and distribution of a supplementary environmental statement by the NRC StalT to address the foregoing issue.
On December 30,1982, the Board issued its Memorandum and Order (see LBP-82117B,16 NRC 2024 (1982)) granting the untimely petition and reopening the evidentiary record for the purpose of considering the environmental issue raised by West Valley - ri:., the asserted adverse impact that the salt deposition associated with the operation of the Palo Verde facilities will have upon the productivity of nearby agricultural lands cultivated by West Valley members. For reasons stated in that opinion, the Licensing Board confined the record reopening to Units 2 119 l
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and 3 of the Palo Verde facilities. In a contemporaneously issued deci-sion, the Licensing Board resolved in the Joint Applicants' favor all issues previously raised by the Intervenor (flourihan) with respect to all three Palo Verde units. Accordingly, the Licensing Board authorized the issuance of an operating license for Unit I alone. LBP-82-Il7A,16 NRC 1964 (1982).
The issue of the impact.of salt depositions on the productivity of nearby lands required consideration of the subsidiary questions:
- 1. The amount of drift which could reasonably be expected to be emitted from the Palo Verde cooling towers;
- 2. Predictions respecting the depositions from the drift in the area surrounding Palo Verde:
- 3. The effect of salt drift depositions on agricultural crops grown in the vicinity of Palo Verde;
- 4. Potential sources of drift emanating from Palo Verde in addi-tion to the cooling towers; and
- 5. A suitable monitoring program to establish baseline data, to detect drift depositions and their effects on agricultural activi-ties in the vicinity of Palo Verde.
To address the first three subsidiary questions the Joint Applicants un-l dertook (1) to measure actual drift emissions from one of the Palo l
Verde Units I cooling towers operated during the hot functional test of i
such unit, (2) to validate the predictive computer model used to esti-mate the distribution of drift depositions in the area surrounding Palo Verde when all three units are in operation, and (3) to engage the Uni-versity of Arizona to assess the effects of salt drift depositions on agricul-tural crops grown in the vicinity of Palo Verde. Results of these efforts were published in reports which were distributed to the parties and the Board and incorporated as exhibits in the prefiled testimony submitted by the Joint Applicants.
On May 1,1985, the Licensing Board issued a " Notice of Public Ilear-ing on Application for Operating Licenses for Palo Verde Units 2 and 3," which was published in the federal Register on May 8, 1985 (50 Fed. Reg.19,500). The Licensing Board then appointed Administrative Judge James 11. Carpenter to be a Technical Interrogator and informal assistant to the Board pursuant to 10 C.F.R. si 2.722(a)(1) and (b) in an order issued May 2,1985 (unpub'ished).
Thereafter, on May 20, 1985, the Joint Applicants and West Valley entered into a Settlement Agreement, and West Valley filed a request for the withdrawal of its Petition to Intervene, its contentions and its re-quest for a hearing and consented to the entry of an order dismissing m
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this proceeding. Concurrently, the Joint Appheants requested that the Board dismiss the proceeding with prejudice.
In a conference call initiated by the Licensing Board on June 3,1985, in which the NRC Staff, Joint Applicants and West Valley participated, the Board discussed the etTect which a settlement reached between Joint Applicants and West Valley of the latter's concerns regarding salt deposi-f tion would have upon this operating license proceeding. While noting l
i that West Valley had requested the withdrawal of its Petition to Inter-vene and all the contentions it had raised, the Licensing Board deter-mined that it could not dismiss the proceeding at that time, but must i
hold a prehearmg conference and preliminary hearing at which time the Board could question both the Joint Applicants' and the NRC StalTs wit-nesses concerning certam matters related to salt deposition from cooling tower drift and the agricultural monitoring plan that did not appear to have been resolved. The Licensing Board also indicated that it would in-quire into five other matters: (1) Unresolved Safety Issue A-45 (shut-down decay heat removal requirements), (2) a petition filed pursuant to 10 C.F.R. { 2.206 relating to microbiologically induced weld corrosion in the spray pond, (3) the necessity of preparing a supplement to the Final Environmental Statement, (4) the status of certain allegations, and (5) whether any agencies of the State of Arizona had comments regarding i
the Settlement Agreement.
The prehearing conference and preliminary bearmg was convened on June 11,1985. After receiving limited appearance statements from members of the pubhe, the Licensing Board questioned West Valley con-l cerning the terms of the Settlement Agreement. West Valley described the additional agricultural monitoring which Joint Applicants are re-quired to perform under that agreement. This additional monitoring pro-gram will include (1) cotton square, bloom and boll counts (2) insect population counts, (3) measurement of site-specific temperature and humidity conditions, (4) yield determinations, and (5) analyses of the results of the additional momtoring on an annual basis. Such monitoring is in addition to the environmental monitoring program which Joint Ap-plicants are required to conduct under the terms of the operating license for Palo Verde Unit 1.
With respect to the issue of the effects of salt deposition from cooling tower drift on agncultural crops in the vicinity of the facilities, the Licensing Board questioned, as a panel, the Ove witnesses who appeared on behalf of Joint Applicants, Drs. M. Goldman, C. Curtis, D. McCune, and K. Foster and Mr. K. Wilber, and the two witnesses for the NRC Staff, Drs. E.D. Pentecost and R. Samworth. Mr. Wilber testified regard-ing his measurements of the drift rates from the facilities' cooling 121 e~
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towers. Dr. Goldman testilled concerning (1) the validation of the FOG computer model used to predict drift deposition, (2) the prediction of drift deposition, (3) possible sources of dnft other than the cooling towers, and (4) the salt drift monitoring program that forms part of the Environmental Protection Pian which is a requirement of the operating license for Palo Verde Unit 1. Drs. Curtis and McCune were questioned with respect to their critique of the assessment of salt drift elTects per-formed by the University of Arizona and sponsored by Joint Applicants.
Dr. Foster of the University of Arizona, who participated in that assess-ment, was questioned on that subject.
The Licensing Board questioned Dr. Samworth regarding drift rates from the cooling towers and Dr. Pentecost concerning (1) the anticipated.
effect of salt drift on agricultural productivity, (2) predictions of salt deposition, and (3) the salt drift monitoring program. The prefiled writ-ten testimony, which had been submitted by all of the witnesses with -
the exception of Dr. Foster, was received into evidence, together with accompanying exhibits.
i The testimony of the expert witnesses and other documentary mate-rials made available to this Licensing Board estabhsh that there is little I
l likelihcod that the amount of drift emitted from the Palo Verde facilities will adversely affect crops grown in the vicinity of the facilities. More-over, the agricultural monitoring program to which the Joint Applicants have committed will provide a basis for determining whether agricultural crops will be damaged by salts emitted from the facdities. If crop damage is detected, then Joint Applicants are required to report such damage and take appropriate action pursuant to the provisions of( 5.4.1 of the Palo Verde Nuclear Generating Station, Unit I, Environmental Protec-tion Plan, which provides that "lilf harmful elTects or evidence of trends j
toward irreversible damage to the environment are observed, the licen-(
sees shall provide a detailed analysis of the data and a proposed course j
of action to alleviate the problem."
j During the hearing held on June 12, 1985, the NRC Staff and Joint
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Applicants reported to the Licensing Board concerning the status of the five remaining matters which the Board had previously raised. None of
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those matters requires any further action by this Board.
I With regard to Unresolved Safety issue. USI A 45, counsel for the Joint Applicants reported that the matter had been considered by the Commission during the May 30,1985 meeting concerning full-power au-thorization for Palo Verde Unit 1.The transcript of that meeting records the fact that the Commission, the NRC Staff and the ACRS have agreed that the issue of installation of PORVs for Combustion Engineering plants will be dealt with through the resolution of Unresolved Safety 122 fu
i Issue, USI A-45. The NRC Staffis still planning to have the issue ready for submittal to the Committee to Review Generic Requirements by the end of this year.
During the Commission meeting on hiay 30th, the NRC StafT also 8
reported that it had reviewed the matter of weld corrosion in the spray ponds and was satisfied with the status of the corrective actions taken by j
the Joint Applicants. Alr. E. Licitra, Project blanager for the NRC Staff, provided the Board with a detailed oral description of microbiologically I
induced corrosion and Alr. E.E. Van Brunt, Joint Applicants' Executive l*
Vice President, described the corrective actions taken. Such actions are detailed in a letter hir. Van Brunt sent to the Commission on hiay 24, 1985.
With respect to the question of whether a supplement to the, final en-vironmental statement should be prepared, counsel for the NRC Staff and the Joint Appheants stated their position that, based upon the evi-dence received in the proceeding, there were no significant new circum-stances or information regarding the possible effects from the deposition of salt drift from the cooling towers on agricultural crops grown in the vicinity of Palo Verde which necessitated the preparation and distriba-tion of a supplement to the final environmental impact statement. The Board concurs in that position.
Counsel for the NRC Staff reviewed the' status of investigations of various allegations that had come to the Board's attention and reported that of the 167 Palo Verde investigations which had been conducted, only 14 remain open. The Commission was apprised of these investiga-tions during the Alay 30,1985 meeting. Based upon assurances by NRC l
Staff members that the fourteen remaining investigations would not ad-versely impact upon full-power operation of Unit I, the Commission per-mitted Unit I to be licensed.
In response to the Board's question regarding comments on the Settle-ment Agreement by any agencies of the State of Arizona, counsel for the NRC Staff reported that there were two agencies which would have an interest in the matter of salt deposition. These are the State Land Commissioner's OfTice and the State Agricultural and llorticultural Commission. These agencies manage State trust and sovereign lands some of which are located within 5 miles of the Palo Verde facilities and are rented out for farming. Three hundred acres of such lands abut the eastern boundary of the plant. Both State agencies were contacted by Staff counsel who was told by each that they were satisfied with the set-tiement in this proceeding and had no adverse comments.
Based upon the Licensing Board's interrogation of the witnesses, the written testimony which was received into evidence, the Board's ques-4 123 l
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tioning of West Valley and the reports of Joint Applicants and the NRC StafT, the Licensing Board accepts West Valley's withcrawal of its peti-tion to intervene and approses the Settlement Agreement reached with Joint Applicants. After careful consideration, the Board has concluded that the proceeding should be terminated and dismissed with prejudice.
Order For the foregoing reasons and in consideration of the entire record in this matter, it is, this 22nd day of July 1985, ORDERED:
The request to withdraw its Petition to Intersene fil:d by Intervenor, West Valley Agricultural Protection Council, Inc., in connection with the Settlement Agreement dated May 20, 1985, is GRANTED and the intervention petition is withdrawn. Inasmuch as there are no other inter-sention petitions or requests for hearing in accordance with the Commis-i sion's notice of opportunity for hearing, the matter is uncontested, and the adjudicatory proceeding is therefore DISMISSED with prejudice.
As stated in our initial Decision authorizing the issuance of an operat-ing license for Palo Verde Unit I, all of the findings of fa:t and conclu-sions of law set forth in that decision apply with full force md effect to all three Palo Verde units, LBP-82 Il7A,16 NRC 1964, 2022 (1982).
Therefore. this Board hereby adopts-and incorporates by reference in this Order all of the findings of fact and conclusions of law set forth in Initial Decision LBP 82 Il7A as if set forth herein in full.
It is further noted that because this operating license proceeding is now uncontested, the Director, OfTice of Nuclear Reactor Regulation, is authorized upon making requisite findings with respect to matters not embraced in this Order in accordance with the Commission's regula-tions, to issue to Joint Applicants operating licenses for terms of not t
more than forty (40) years, authorizing operation of the Palo Verde Nuclear Generating Station, Units 2 and 3. Such licenses may be in such 4
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form and content as is consistent with the conclusions of the Board herein.
l-Tile ATONilC SAFETY AND LICENSING BOARD j
Robert M. Lazo, Chairman ADMINISTR ATIVE JUDG E Richard F. Cole, Member ADMINISTR ATIVE JUDGE 4
A. Dixon Callihan, Member ADMINISTR ATIVE JUDGE i
Dated at Bethesda, Maryland, I
4 this 22nd day of July 1985.
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l 125 4
Cite as 22 NRC 126 0985)
LBP-85-27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence Brenner, Chairman Dr. A. Dixon Callihan Dr. Richard F. Cole 4
in the Matter of Docket Nos. 50-456 50 457 COMMONWEALTN EDISON COMPANY (Braidwood Nuclear Power Station, Units 1 and 2)
July 30,1985 The Licensing Board rules on a three-part contention alleging that the use of the Illinois Central Railroad to transport explosive materials from a federal ammunition plant creates a hazardous condition due to the proximity of the railroad tracks to the nuclear facility. The Board rules the subpart of the contention alleging sabotage or a purposefully induced explosion is precluded from the proceeding under 10 C.F.R. 6 50.13(a).
4 The other subsections of the contention, addressing the risk (probabihty and consequences) of an accidental railroad explosion, were found to be 7
I admissible. The Board ruled that those subparts do not invohe "use or deployment of weapons incident to U.S. defense activities," considera-tion of which would be precluded under 10 C.F.R. $ 50.IJ(b)..
i LICENSING REQUIREMENTS: 10 C.F.R. I 50.13; ATTACKS l
BY AN ENEMY OF TIIE U.S.
Part of the rationale behind { 50.13 was the AEC's recognition of the practical necessity to exempt applicants from protecting their facilities 126 i
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against military or paramilitary attacks threatening the national security, even if the attack is directed against a nuclear plant, because the coun-try's security is intended to be left entirely to the nation's defense estab-i lishment and security agencies. Florida Power and Light Co. (Turkey
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Point Nuclear Generating Units 3 and 4). 4 AEC 9,13 (1967). ap'd.
Seigel v. AEC. 400 F.2d 778 (D.C. Cir.1968).
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i NRC: EXECUTIVE BRANCH POLICY
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The AEC determined that requiring an applicant to demonstrate that its facility is protected against an enemy attack would "stiDe utterly the peaceful utilization of atomic energy in the United States." Seigel v.
AEC,400 F.2d 778. 783 84 (1968).
f LICENSING REQUIREMENTS: 10 C.F.R. I 50.13(a)-
I SABOTAGE Two inquiries must be made when determining if a contention is barred under 10 C.F R. I 50.13(a). The first is whether the postulated sabotage is " directed against the facility" and the second is whether the saboteurs quahfy as an " enemy of the United States."
LICENSING REQUIREMENTS: 10 C.F.R. I 50.13(a);
ATTACKS BY AN ENEMY OF TiiE U.S.
In determining whether an attack is " directed against the facility," the
(
subjective intent of the attackers is not material. The Board is not re-i quired to engage in an inquiry into the mind of an attacker to determine r
whether the attack was intended to damage the' nuclear facility or wheth-er the damage was merely incidental to some other hostile goal. See Clercland Electrie ///uminating Co.~ (Perry Nuclear Power Plant, Units I and 2), LBP-81-42,14 NRC 842,844 (1981).
LICENSING REQUIREMENTS: 10 C.F.R. I 50.13; ATTACKS BY AN ENEMY OF THE U.S.
The Appeal Board in the /ndian Point case determined that an appli-cant is not required to take afGrmative measures against an attack by an armed group which is not an enemy of the United States. Consolidated Edison Co. of New Fork (Indian Point Station, Unit No. 2), ALAll-202, j
7 AEC 825,829-30 (1974).
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l LICENSING REQUIRE 3 TENTS: 10 C.F.R. 6 50.13(a)t ATTACKS BY AN ENE31Y OF Tile U.S.
A Board may determine whether an attacking force is an " enemy of 4
the United States" by applying the objective test set out in the Perry de-cision. That test questions whether a hostdc act was committed and whether the damaging result was caused by the hostile act. If the answers to both questions are affirmative, the group or nation perpetrating the hostile act qualifies as an enemy of the United States. C/cre/and E/ccrric
///uminatmg Co. (Perry Nuclear Power Plant. Units I and 2), LBP-81-42, 14 NRC 842,844 (1981).
PLANT DESIGN: APPLICANT'S RESPONSIBILITY FOR PilYSICAL SECURITY When an enemy act is beyond the type of design basis security threat '
encompassed by 10 C.F.R. { 73.l(a), then an applicant is entitled to rely on the government's military or law enforcement agencies to handle such an attack.
NRC REGULATIONS: ENE31Y ATTACKS ON NUCLEAR 1
PLANTS; 10 C.F.R. 99 73.l(a) AND 50.13 l
i Section 73.l(a) of 10 C.F.R. is to be read in pari materia with s 50.13, Carolina Power & Light Co. (Shearon liarris Nuclear Power Plant, Units I and 2), LBP 82119A,16 NRC 2069,2098 (1982). but Part 73 refers to sabotage accomplished with the use of small weapons carried out by small bands of saboteurs, while j 50.13 addresses military style attacks.
broader in nature and employing heavier weapons. Part 73 contemplates sabotage on the plant site, and the security measures mandated under Part 73 are not to be extended beyond the vicinity of the plant's bounda-ries. See 10 C.F.R..(( 73.45 and 73.46.
RULES OF PRACTICE: ADAIISSIBILITY OF CONTENTIONS; 10 C.F.R. I 50.13(b)
To determine whether a contention is barred under { 50.13(b), the Board must decide whether the contention postulates a scenario causing damage to the reactor's integrity, which is the result of"use or deploy-ment of weapons incident to U.S. defense activities."
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RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS; DEPLOYMENT OF U.S. WEAPONS; i
10 C.F.R. 9 50.13(b)
I When artillery shells or explosives are transported, their mere move.
ment is not " deployment" within the context of { 50.13(b) because they are not being strategically arranged in locations appropriate for their use, unlike nuclear missiles in silos from which they can be launched, or con-ventional weapons being tactically placed in the field with a military unit. It stretches the rationale on which 10 C.F.R. l 50.13 is premised to
.t accept mere movement of raw ingredients for the manufacture of ammu-nition, or the ammunition itself, to or from a local ammunition plant, as deployment of weapons.
LICENSING REQUIREMENTS: EMP CAUSED BY EXPLOSION OF NUCLEAR MISSILE OR OTHER WEAPONS I
An explosion of a nuclear missile or other weapon would either be an enemy act, or, if a U.S. nuclear device, would arise from the deploymerit l'
of weapons by the U.S. Sec Philadelphia Electric Co. (Limerick Generat-ing Station, Units I and 2), LBP-82-43A,15 NRC 1423,1500 (1962) and Clewland Electric //luminating Co. (Perry Nuclear Power Plant,' Units I and 2), LBP-81-42,14 NRC 842,845 (1981).
AIRCRAFT CR ASH RISE it is erroneous to view 10 C.F.R. 6 50.13(b) as precluding the Board from considering anything related to the military that might' impact a 4
nuclear facihty, on the theory that such military activity is necessarily l
"use or deployment of weapons incident to U.S. defense activities." l.e.,
past agency practice has allowed Boards to consider the possible risks to i
a nuclear plant from crashes of military airplanes. Consumers Power Co.
(Big Rock Point Plant), LBP-84-32,20 NRC 601,639-52 (1984).
i 129 4
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1 MEMORANDUM DETAILING RATIONALE IN SUPPORT OF JUNE 21, 1985 ORDER ON ADMISSlHILITY OF NEINER FARMS CONTENTION 4 (RAILROAD EXPLOSION)
BACKGROUND On January 12, 1979, Bob Neiner Farms, Inc. submitted a petition to intervene in the Braidwood operating beense proceeding. Among the contentions Neiner Farms wished to have htigated was one alleging that the use of the Illinois Central Railroad to transport explosive materials from the Joliet Army Ammunition Plant creates a hazardous condition due to the proximity of the railroad tracks to the tiraidwood facility. This contention has been designated "Neiner Farms Contention 4." The aA missibility of Neiner Contention 4 was addressed in the Licensing Board's Special Prehearing Conference Order ("SPCO"). LBP 85-il,21 NRC 609,617-24 (1985).
In earlier pleadings, both Applicant ud Staff had urged the Board to bar the relitigation of Contention 4 under the legal theory of collateral estoppel.' The Applicant and Staff claimed that because issues associated j
with transporting explosive substances by rail were considered and ruled upon by the Licensing Board in the construction permit stage Braidwood site suitability determination, this Board is estopped from considering i
the issue in the operating license case. See LBP 751, 8 AEC 1197, 1226-27 (Findings 85 88) (1975); $PCO, 21 NRC at 619. For the rea-sons stated in the SPCO, the Board rejected the collateral estoppel argu-ment and admitted the entire contention for litigation in the OL proceed-ing. SPCO, supra,21 NRC at 617 24 Applicant timely filed objections to the Board's SPCO. Appheant ap-parently reconsidered its earlier argument and eschewed challenging our determination that collateral estoppel would not be properly apphed to Contention 4. Applicant's Objections to Board Order, at 2, dated April 29,1985 (" Applicant's Objections"), in its Objections, Applicant instead propounded a different basis for excluding the contention and requested that the Board reconsider the contention's admission. Applicant's new argument rests on the claim that litigation of Contention 4 is barred be-l Answer of Cornmonwealth fdnon Company to the Contennone or Bob he ner farms, at 4 $ ( Augu t 22.1979h Applwant's supplemental 8ttef, september
- 17. 1979. sidf leuer to Board. seriember 12 1979 130
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f cause it impermissibly challenges NRC regulation 10 C.F.R. y 50.13, t
which encompasses both U.S. defense activities and acts of sabotage.2 On April 30, 1985, the Board issued an unpubhshed Order directing the NRC Staff and Neiner Farms to respond to Applicant's new argu-
. ment. We also directed the StalT and permitted Neiner Farms to address several Board questions. We find ourselves in basic agreement with the "NRC StafT Response to Applicant's Objections to Licensing Board's Special Prehearing Conference Order," dated May 20,1985 (" Staff Re-f, sponse"). Neiner Farm's May 20. 1985 response was extremely brief I
and unhelpful. It did not discuss or challenge Applicant's argument that subsection (c) of the contention, relating to sabotage, is barred by s 50.13(a). It did challenge, with little discussion, Applicant's argument that the entire contention is barred by 10 C.F.R. ! 50.13(b), by asserting, in agreement with the Staff and our holding below, that the railroad transportation of munitions from the ammunition plant is not a deploy-ment of weapons.
I Applicant's objections to the admission of Contention 4 were ruled on in the Board's unpublished June 21,1985 Order Reconsidering Admis-
,l sion of Neiner Farms Contention 4. In summary fashion, the Board ruled that, as asserted by Applicant and the NRC Staff, Contention 4(c) i is barred by s 50.13(a) (relating to sabotage), flowever, we rejected Ap-plicant's other objection.that the entire contention is barred by
{ 50.13(b) (relating to U.S. defense activities). On this point, we agreed with the NRC Staff and Neiner Farms. Accordingly, the Board ruled that suboarts (a) and (b) of the contention are appropriate for litigation in this operating license proceeding. This memorandum serves to supple -
i ment the Board's June 21, 1985 Order, explaining more fully why the l
Board ruled as it did on reconsideration of Neiner Farms Contention 4.
l l
l JScr 10 C F.R. 4 27584 4fert.>fv bras Edison Co (Three Mile Island Nucicar siation. Unit 21 AL AB-450, 7 NRC 63. 65 (1978#. Common ralr/r Edisos Co. 4B>ron Sucicar Power station. Units 1 and 2). LBP40 30.12 SRC 683,692-93 (1980s Apphcant acAnostedges that sis nem arguments based on 10 C F R 4 5013 should have been raised at an earber stage m the proceedings Appbcant s objections, at 7. w e agree. la should have been raised
~
in this operatmg bcense proceedirig s. years ago, m its August 22. 1979 answer to contenuons. Indeed, it arguabh should have been raised over ten years ago, before a similar issue was considered by the Licensmg Board m the uncontested site suitabihty hearms phase of the construcuon permit proceedmg.
However, we also agree with Apphcant, at icast m the circumstances or the regulation an quesuon. that Apphcant's objecuons to the subiect mauer Junsdicuon of the Board should not be deemed to have been waived. CI Fed R Civ. P 12(ht Apphcanis objecuens. 418 Tnere is nis suggesteori by anyone, nor do me percene any Wssible basis for one, that Apphcant for sothe strategic reason would have knommgly deferred makmg its subject matter junsdecuon objection. Any 'nconvenience to the other par.
ties and the Board has been msubstantial (given the resub we reach on the nem objectionsP, and is far outmeighed by the goal of correctly defmmg. in advance orinal, the Board's Junsdicuon over the e.nues advanced by Nemer Farms Contention 4 Indeed. pnor to the rahng of Appbcant's new objections, the Board had been considenng whether w au the parues to address the admisvbihty or subpart (c) of Con-tenuen 4 m hght or t 5013(at 131 l
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RATIONALE FOR RULING As accepted by the floard in the SPCO, Neiner Farms Contention 4 stated:3 Intersenors contend that the proumity of the Ilhnois Central Railroad to the plant site and the use of the rail system to transport esplome materials from the johet, Ilknois arsenal and other plants or depoutories creates an unacceptabl> hat-ardous condition not conudered by the Atomtc Safety and Licenung Board, which issued the partial mitial deciuon on ensnonmental and une suitabihty matters for the Brand *ood Station (LHP-751, 8 MC 1197 (January,1975H At the construc-tion permit stage the anal > sis of the probabihty of an explouon was enadequate m that; al the six month period durms 1974 fcr whwh the tralTic from the Johet arsenal was analyzed is not reprewntatne of other tralTic periods m the past and may not be representa,ne of the traffic to be expected in the future.
b) the analysis of the traffic was based on peacetime tralTec only.
c) only the probabihty of accidental or madvertent esplosions were assessed and the prribabihty of sabotage or purposefully caused explosions were not ex.
piored.
Applicant argues, as we have already noted, that litigation of Neiner Farms Contention 4 would be an impermissible challenge to s 50.13.
That regulation provides:
An apphcant for a hcense to construct and operate a production or utshzation facthry. or for an amendment to such hcense,is not required to provide for design features or other measures for the specific purpose of protection agamst the efTects of tal attacks and destructne acts, mclud ng sabotage, directed agamst the facihty by an enemy of the United States, whether a foreign government or other person, or ib) use or deployment of weapons incident to U1 d-fense actnatics.
i 3 Punuant to the Board's encouragement, the contennon has now been remorded by agreement of the parues to better sflect the actual controversy. July II.1985 fihng by SRC Staff. Tr.155. The Board ap-proves the rewordmg, which states-
- a. Intervenors contend that the pronimny of the ilhnots Central Raboad hne to the Braid-
=ood 5tauon site and the use of that rad hne to transport muninons from the Joliet Army Ammunipon Plant, including the potential transport of RDX and flMX esplomes which may be manufactured at that facshty in the future, create an unacceptaNy hazardous condetton. The condshon is hazardous en the following respects' The probabihty of an aschtent invohing an e:Plosion c( muniuons on the rail hne is a.
not so low as to preclude its consideration as a desrgn basis accident; and b.
The design of the Braidwood Stanon is such that the facihty cocid not withstand the nc-(
currence of an explowon of muniuons on the rail hne m;thout endangeririg the pubhc health and safety.
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We begin our evaluation of Applicant's argument by reviewing the rationale behind % 50.13. We find that this provides the primary basis for 3
our rulings on the contention.
i Section 50.13 was adopted by the NRC's predecessor agency, the i
Atomic Energy Commission (" AEC"), in 1967 because there was an
[
obvious, practical need to exempt apphcants from being forced to protect
[.
against certain types of military or paramilitary attacks which the Com-
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mission recognized were beyond the sphere of an apphcant's responsibil-l ity. This included situations in which the national secunty was threat-ened, even if the attack directed its force against a nuclear power facility.
When the Commission developed the policy of excluding hostile attacks from litigation, it did so based on its determination that the cot.ntry's na-tional security is intended to be left entirely to the nation's defense es-tablishment and security agencies. Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), 4 AEC 9,13 (1967), aff'd, Seigel r. AEC,400 F.2d 778 (D.C. Cir.1968).
Prior to the adoption of % 50.13, the Atomic Energy Commission had articulated the reasoning in support of the regulation in the Turkey Pomt facihty construction permit case, which arose m the late 1960's.
TurAcy Point, supra,' in the Turkey Point proceeding, the Commission j
addressed whether the Licensing Board was required to adjudicate inten-
[
tional efTorts to damage a facility when those efforts are carried out by i
an enemy of the United States, the same question this Board faces vis-f a-vis Contention 4(c). /d. At the time the Commission issued its deci-sion in TurAey Point, what is now % 50.13 was only a proposed rule. (See i
32 Fed. Reg. 2821 (Feb. I1,1967).) Tlie Commission noted that the l
background information provided with the publication of the proposed rule " confirmed the Commission's past practice of not requiring appli-l cants for facility hcenses to provide for special design features or other i
measures for protection agairst the effects of attacks and destructive i
I acts directed against the facility by an enemy of the United States."
Turkey Point, supra,4 AEC at Il.
We quote the Commission's language in the August 4,1967 Turkey Point Memorandum and Order, which sets forth the rationale for exclud-ing enemy sabotage from licensing considerations:
We behese that our practice of excluding (protection against enemy attacks or de-structive acts! from hcenung conuderation is founded on compelhng factors it would appear manifest, as an smtsal proposition that the pro'ection of the United 4 See alw the statement of Consderauon. swued osth the rmal rule 32 Fed Reg.13.445 (sept. 26.
1%7).
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States against hostile enemy acts is a responsibihty of the nation's defense estabbsh.
ment and of the sareous agenacs of our Government haung mternal security func-tions. The power reactors which the Commission bcenses are of course, equipped with numerous features miended to assure the safety of plant employees and the pubbe, as indicated by our carher summary description of the proposed l'urkey Pomt fachty. These safeguards, w hih designed to protect agamst acadents and their consequences. do not have as their speofic purpose protectum agamst the effects of enemy attacks and destructive acts - ahhough the massne containment and the procedures and systems for rapid shutdown of the faciht) coukt also serse a useful purpose in the latter regard. One factor underlying our practice m this connection has been a recognition that reactor design features to protect agamst the full range of the modern arsenal of weapons are simply not practicable and that the defense and internal security capabilities of this country constitute, of necessity, the basic
" safeguards" as respects possible hostile acts by an enemy of the United States.
The circumstances which compd our recogmtion are not, of course, un que as regards a nuclear facshty; they apply also to other uructures which play vital roles within our complex industrial economy. The risk of enemy attack or sabotage agamst such structures, hke the risk of ali other hostile acts uhich might be directed agamst this country, is a risk that is shared by the nation as a who'e. This prmaple, we behese, is rooted m our pohtical history and we find no Congressional mdication that nuckar facthines are to be treated ditTerently m the subject regard.
4 AEC at 13.
The United States Court of Appeals for the District of Columbia reviewed the Commission's Memorandum & Order in the TurAey Point case. The Court of Appeals afTirmed the Commission and basically align-ed itself with the Commission's legal reasoning. Seigel v. AEC,400 F.2d 778 (1968). The Court summarized the basis on which the Commission made its decision as:
(1) the impracticability, particularly in the case of eivihan mdustry, of anticipatmg ac-curately the nature of enemy attack and of designmg defenses agamst it Q) the set-tied tradition oflookmg to the mahtary to deal with this problem and the consequent sharmg of its burdens by all citizens, and O) the unasailabihty, through security classification and otherwise, of relevant mformation and the undesirabihty of sen-tilating what is availabic in pubhc proceedmgs.
400 F.2d at 782.
The Court of Appeals understood and endorsed the Commission's ~
determination that requiring an applicant to demonstrate that its nuclear facility is protected against various forms of enemy attack would " stifle utterly the peaceful utilization of atomic energy in the United States."
Seigel 400 F.2d at 783-84. The Court's conclusion clearly upholds y 50.13:
In short, Congress certamly can be taken to have expected that an apphcant for a hcense should bear the burden of provmg the security of his proposed facihty as 134
d against his own treacher), negligence, or incapacity. h did not espect him to demonstrate how his plant would be insulnerable to whaieser destructise forces a foreign enemy might be able to direct against it in 1984 400 F.2d at 784.
y Centention 4(c) Is Barred by i 50.13(a)
We turn now to the two inquiries necessitated under s 50.13(a). The first is whether the sabotage postulated by Contention 4(c) is " directed l-against the facility." Applicant argues that the postulated attack or sabo-tage against the Illinois railroad train transporting explosives from the ammunition plant would be " directed against" the Braidwood facility within the meaning of the regulation. We agree. The very premise of Neiner Contention 4(c) is that the attack or sabotage of the train will take place at a location in proximity to the Braidwood plant, consistent with the further apparent premise that it is the intent of the attackers (or saboteurs) to damage the nuclear power station. Any such attack would be a more locahzed attack and, therefore, one even more clearly directed against the nuclear facility than other postulated '" indirect" attacks barred from consideration in other cases. In any event, the subjective intent of such attackers is not material.
p in Cleveland Electric //luminating Co. (Perry Nuclear Power Plant, l
Units I and 2), LBP-81-42,14 NRC 842, 844-45 (1.981), intervenors t
argued that their postulation of an act of detonating a nuclear explosion during an attack on a neighboring country which allegedly could damage the Perry nuclear plant, was not an attack " directed against" the facility.
The Perry Board found, and we agree given the rationale of s 50.13 de-i scribed above, that a Board is not required to engage in the absurdity of the subjective test ofinquiring into the mmd of an attacker (or saboteur) to decide whether the act was intended to damage the nuclear facility or whether such damage was merely incidental to some other hostile goal of the attacker. /d. at 844. Rather, as stated by another Licensing Board, the very nature of the act of detonating a nuclear device which could damage a nuclear power plant constitutes, a priori, a destructive act directed against the facility. Washington Public Power Supply System (WPPSS Nuclear Project No.1), LBP-83-66,18 NRC 780,783 (1983).
Therefore, while the postulated attack or sabotage may be perpetrated on the train or its tracks, such activity satisfies the requirement that the sabotage be " directed against the facility." This would be so whether or not the subjective intent of the perpetrators is to damage the nuclear facility.
I35
The second inquiry is whether, in the words of s 50.13(a), the sabo-teurs qualify as "an enemy of the United States, whether a foreign government or other person." We find it implausible to categorue any group of individuals who attempt to damage a tramload 'of munitions traseling from a federal arsenal as other than an enemy of the United States. Moreover, as Applicant discusses in its Objections, at 5-6, the Appeal Board has addressed an intervenor's exception to a Licensing Board's finding that an applicant need not protect against an armed band of saboteurs intent upon, and capable of, damaging the plant. Consolidat-ed Edison Co. of New l' ora (Indian Point Station, Umt No. 2), ALAB-202, 7 AEC 825 (1974). The Appeal Board in Indian Point characterned the intervenor's exception as raising the issue of whether an applicant must take afTirmative measures against an attack by an armed group which is not an enemy of the Umted States. /J. at 829-30. In denying the intervenor's exception, the Appeal Board focused on whether it would be reasonable to require an Applicant to provide such protection.
The Indian Point decision is unequivocal that it would not be a reasona-ble requirement.
This situation presents problems whnh. from an applwant's standpoint. ditTer htt!: in kind or degree from the problems presented if the armed band is in fact an enemy of the United States? From a pracucal standpoint, if there is an attack by a substantial force, those who have to decide whether to seek asmtance, and whether to provide responsive capabihties, mili probably not first ponder oser the question of whether or not the force is an enerny of the United States.
M Ser sad wmport Secert r. 4EC. 400 F 2d 778. 782 (D C. Cir.1%8L
/d. at 830.
The logic of the Appeal Board's reasoning is supported with its inter-pretation of the rationale behind s 50.13. The Appeal Board notes that the regulation does not require "an applicant'to protect against the ef-fects of enemy attacks and destructive acts" and that the same rationale "would also apply to an armed band of trained saboteurs." 7 AEC at 830. The Appeal Board concluded:
As m the case of defending agamst the threat of an attack by an enemy of the United States. it seems that an apphcant should be entitled to rely on settled and tradinonal governmental assistance m handhng an attack by an armed band of trained saboteurs. Without such rehance, each facihty could indeed become an armed camp.
I$'
The more recent Perry decision also provides legal reasoning from which we may conclude that the saboteur band postulated by Neiner 136 i
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a, Contention 4(c) would be an enemy of the United States Perry, supra, 14 NRC 842. The portion nf the decision explaining the rejection of a subjectise test to determme if a nuclear weapon-induced electromagnetic pulse is " directed against the facility" (consideration of which would be precluded under s 50.13(a)), also explains how the Board determines whether the attacking force is an " enemy of the United States."
(llf a nation fires a n'aclear dessee which causes electromagnetic pulses over the Umted States, that nation is responsible for the result. By that hostile act, the nation becomes an enemy of the Umted States and is responsMe for direct or mdirect con-bequences resuiting from its use of a nucicar weapon.
Perry, supra,14 NRC at 844. We concur that where an act is hostile, and could damage a nuclear plant and thereby cause harm to the public health and safety resulting from radiation releases, then the perpetrator of that act is an enemy of the Umted States for purposes of application of s 50.13(a). Where, as here, such enemy act is beyond the type of design basis security threat encompassed by 10 C.F.R. s 73.l(a), then an applicant is entitled to rely on the government's military or law en-forcement agencies to handle such an attack.
The discussion of our rejection of Contention 4(c) would not be com-plete without some mention of the physical protection of nuclear power I
plants mandated under the NRC regulations. The Seigel' Court, as quoted supra pp.134-35, had alluded to the security responsibilities to be shouldered by an applicant. Those provisions in the regulations requiring an applicant to provide physical security measures as a prere-quisite to obtaining an operating license are contained in 10 C.F.R. Part
- 73. It has been previously stated by a licensing board that 50.13 is to be read in pari materia with the regulations of Part 73. Carolina Power a Light Co. (Shearon Harris Nuclear Power Plant. Units I and 2),
LBP-82-119A,16 NRC 2069, 2098 (1982). The distinctions between
. {
these two parts of the regulations serve to shore up our conclusion that i
Neiner Contention 4(c) may not be litigated in this proceeding.
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The regulations encompassed by Part 73 require a nuclear facility to be secure against specific design basis threats. Such threats contemplate well-trained individuals (likely assisted by a knowledgeable insider),
who carry hand-held weapons and/or other hand-carried equipment for destroying the reactor's integnty.10 C.F.R. s 73 l(al(l). Part 73 refers to sabotage accomplished with the use of small weapons by small bands of saboteurs. In contrast, when read in the light ofits own rationale (dis-cussed above) and s 73.1, s 50.13 addresses military-style attacks which are broader in nature and carried out with heavier weapons. Shearon Harris, supra,16 NRC at 2098.
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The threat postulated in Contention 4(e) is an explosion of the rail-road train and its cargo, even ifit is argued that this explosion may stem from a chain reaction begun by a small band of attackers with hand-held equipment. Thus, the method and nature of sabotage contemplated by 1
Contention 4(c) would be beyond the scope of the design basis threat contemplated under s 73.l(a)(l). We agree with the NRC StalT (Re-i sponse, at 10) that a railroad earload of munitions clearly was net intend-ed for litigation under a regulation related to " hand-held weapons."
Furthermore, the sabotage envisioned by Part 73 is perpetrated at the plant site or against nuclear fuel being shipped to or from the site.
( 73.l(b). Thus, Applicant is required to take certain precautions to I
ensure the plant's security. In the scenario postulated by Contention f
4(c), sabotage is committed outside the plant's security boundary along the railroad's route from the Joliet arsenal. For that reason alone, Con-tention 4(c) could not be litigated under 10 C.F.R. Part 73 because the' security measures required by Part 73 do not extend beyond the vicinity of the plant's boundaries. See 10 C.F.R. sf 73.45 and 73.46. ( As noted,
+
under Part 73, other measures must be taken to protect shipments of j
nuclear material to or from the plant. This subject is unrelated to the
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contention.)
Contention 4 Is Not Barred by i 50.13(b)
In our June 21,1985 Memorandum and Order, the Board ruled that
}
Neiner Contention 4(a) and 4(b) is admissible for litigation in this pro-ceeding. We disagree with Applicant that the accidents postulated by Neiner Farms in subparts (a) and (b) of the contention would be the result of use or deployment of weapons incident to U.S. defense activi-ties, consideration of which is barred by s 50.13(b). Rather, we are in es-sential agreement with the NRC Staff. The StalT has provided the Board L
with a well-reasoned explanstien of those areas' in which Applicant's arguments falter. NRC Staff Re;ponse, at 3-6.
We first examine the language of f 50.13(b) to determine whether the shipment of explosive materials and munitions from (or even to) the i
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Joliet Army Ammun'ition Plant would be encompassed within the regu.
I 1
lation's intended meanir.g of " deployment of weapons." Proceeding ini-
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tially with the simplest oflinguistic tools, we found that the definition of l
/ e deployment contained in Webster's Third New internatior"1 Dictionary 1-(unabridged) is as follows:
l r_ ;
de. ploy.. i'r la: to extend (a military or naval unn) m udth or m both mdth
(;
_ p.j and depth [he deployed hn squad on both sides of the road! b: to place or ar -
j' j
range (armed forces) m battle disposition or formation or m locations appropriate j
s.
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- - - - - ~ ~ * * - ~ ~ "'""~~'~~'**'"~ '~ " " ~ ~~ ~ ~ ~
for their future employment [ deploy forces to check aggresuuns! 2: to estend or place as if deploymg troops (depicymg the editors.. m sarious phases of pointical reportirig - AcusnwAl lharried roadmasters deploung equpment and work gangs along the grade in mdatary fashion - R.L. Neuberger) deploy rt: to mose m or as if m deployment (the squad deployed and made a dash for the hill - Hanama Tasakil (the staff deployed to their phones - Time).
i i
The meaning of s 50.13(b) reasonably understood from the word
" deploy" is that associated with the definitions set in a military conteit.
The munitions (explosises or propellants for artillery shells) involved in i
this case, although they may be considered military munitions, are not being strategically arranged in locations appropriate for their use, unlike i.-
nuclear missiles being placed in silos from which they can be launched, or conventional weapons being tactically placed in the field with a mili-tary unit dunng war (or during a standby alert, or even engaged in a training exercise). Rather, the munitions m question are merely being transported from (or to) the Joket ammunition plant, perhaps to storage locations, or to ammunition factories, or to military bases, such that in the event of a national security crisis or mihtary exercise the munitions would then be deployed to a destination specified by the military for use in our national defense. Aloreover, it stretches the rationale on which s 5f.23 is premised, as discussed above, to label as " deployment of wea-poiss" mere movement of raw ingredients for the manufacture of ammu-nition, or the ammunitwn itself, to or from a local ammunition plant.
j The remaming subject of the contention (as set forth in the reworded Contention 4(a) and (b), note 3, supra), is the alleged public hazard I
from damage to the Braidwood plant by an accidental explosion close to
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the nuclear plant of a railroad train cargo of munitions being shipped I
from the nearby Joliet Army Ammunition Plant. Litigation of this issue should not intrude on national defense responsibilities and concerns of the country in general, which are the province of the military defense and security establishment. No strategic actions involving the use or de-ployment of weapons are affected by an analysis of the risk (conse-quences and probability) of the alleged railroad explosion. To be sure, if we find on the merits in favor of Neiner Farms, possible remedies by the Applicant may be limited by the U.S. Army's prerogative, over which we exercise no junsdiction, to operate the Johet ammunition plant any way it desires to do so, including use of railroad shipments near the Braidwood plant. Ilowever, possible limitatior:s on Applicant's remedies, if any are necessary after our decision on the ments, do not 7.Tect the NRC's subject matter jurisdiction to determme the merits of modified Neiner Farms Contention 4(a) and (bl.
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The StatT made the additional point that the cases cited by Applicant do not support Applicant's position that Nemer Contention 4(a) and (b) is not litigable. We agree that the cases are not factually close enough to the Braidwood circumstances to buttress Applicant's position. The cases Applicant relied upon were Philadelphia E/cctric Co. (Limerick Generat-ing Station, Units I and 2), LBP-82-43A,15 NRC 1423,1500 (1982) and Perry, supra,14 NRC at 844-45. In those cases, the weapon in issue was a nuclear missile (or other nuclear weapon) explosion postulated to cause an electromagnetic pulse (EMP) over a large area. See also ll'PPSS. supra,18 NRC at 783. The EMP was postulated to disable the nuclear plant protection systems by electrical interference. Both Boards determined that explosion of a nuclear missile or other weapon would be either an enemy act, or, if a U.S. nuclear device, would arise from the deployment of weapons by the U.S. Perry, supra,14 NRC at 845; Limerick, supra,15 NRC at 1500. U.S. nuclear missiles (in silos or in the '
air), or other nuclear weapons in the air, are deployed weapons incident to U.S. defense activities. Stated another way, we find the widespread de-fense activity of the deployment of U.S. nuclear missiles in silos or in the air to be factually distinct from the localized natare of the transporta-tion of weapons or explosives to or from the Joliet ammunition plant by railroad, particularly given the rationale behind s 50.13.5 i
We also note that if we accept Applicant's arguments, a Licensing Board would not be permitted to consider anything related to the military that might impact on a nuclear facility. That is, the Applicant would have the Board employ such an extremely broad reading of ( 50.13(b) that almost anything military could be argued to be a use or deployment of weapons as an incidence of U.S. defense. For example, under the Ap-plicant's reasoning, a Licensing Board would be forbidden from consider-ing the air traffic of military planes taking off and landing at a military airfield located near a nuclear plant. This would conflict with what we understand to be long-standing AEC and NRC practice of considering the possible risks to a nuclear plant of crashes of military airplanes. E.g.,
Consumers Power Co. (Big Rock Point Plant), LBP-84-32,20 NRC 601, 639 52 (1984) (a case with which Applicant's counsel before us is famil-iar). Similarly, we see no reason to bar our consideration of the shipment of ammunition or raw explosive materials for the sole reason that they may, at some later point, be deployed or used in national defense activi-ties.
5 g,,en our wew. me do not have to conuder whether the contents or the shipments tront the ammum-uon plant would consistute " weapons."
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CONCLUSION The above sets forth the Board's reasons for our rulings in the unpub-lished Order of June 21,1985, that:
- 1. Nemer Farms Contention 4(c) is barred from litigation by 10 C.F.R. s 50.13(a); and
- 2. Neiner Farms Contention 4(a) and (b) (as now reworded) is not barred by 10 C.F.R. s 50.13(b), and is admitted as an issue t
m controversy in this proceedmg.
FOR Tile ATOMIC SAFETY AND LICENSING BOARD Lawrence Brenner, Chairman i
ADMINISTR ATIVE JUDGE l-
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Bethesda, Maryland i
July 30,1984 i
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DD 85-10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION t-Harold R. Denton, Director s
in the Matter of Docket No. 50-295 (10 C.F.R. I 2.206) f COMMONWEALTH EDISON COMPANY i
(Zion Station, Unit 1)
AND ALL LIGHT-WATER REACTORS July 3,1985 I
The Director of Nuclear Reactor Regulation denies a petition filed by i
Zinovy V. Reytblatt seeking an immediate postponement of all contain-ment leak rate tests performed for light water reactors based on alleged errors in containment leak rate measurement methodology. Petitioner also alleged errors in computer software used to determine containment leak rates. The Director concluded that the current leak rate methodolo-gy was adequate to determme coritainment leak rates. Furthermore, the NRC StafT has reviewed data sets from tests using the allegedly incorrect
{
software and has found that the data have been correctly processed. In addition, NRC inspectors, as a matter of course, independently verify i
sontainment leak rate results.
TECHNICAL ISSUE DISCUSSED: CONTAINMENT LEAK RATE TESTING The equation used to calculate containment air mass will produce ade-quate results if testing is done under stable conditions and test data are properly evaluated. Further, the likelihood that weighting coefficients are manipulated to produce an acceptable test result is small as NRC inspectors-regularly observe the tests conducted by licensees and docu-ment the results in Inspection Reports.
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DIRECTOR'S DECISION 'UNDER 10 C.F.R. 9 2.206 INTRODUCTION On Afarch d,1985, Zinovy V. Reytblatt (Petitioner) submitte'd a letter pursuant to 10 C.F.R.') 2.206 to the Director of the Ollice of Nuclear Reactor Regulation seeking an immediate postponement of all contain-ment leak rate tests performed for light water reactors pursuant to the Commission's regulations in this area, specifically,10 C.F.R. Part 50, Appendix J. The primary concern raised by the Petitioner was the alleged use ofincorrect weighting coefTicients in the air mass equation used for determining actual containment leak rates. Specifically, Petitioner alleges that incorrect weighting coefficients were utilized in determining the containment leak rate for the Zion Station, Umt 1.
On March 8,1985, Petitioner submitted a second letter to the Director of the OITice of Nuclear Reactor Regulation alleging that certain comput-er software developed by Volumetrics, Inc..-and utilized at a number of nuclear facilities, including the Zion Unit I, to determine containment leak rates, does not function correctly and consequently may lead to in-l correct determinations of containment leak rates. Petitioner requested that actions be taken to ban the use of the software in question until it has been " debugged" and revahoated.
On April 22, 1985, I acknowledged receipt of both the March 6 and March 8,1985 letters from the Petitioner and informed the Petitioner that both letters would be considered together as a Petition pursuant to 10 C.F.R. f 2.206 and that appropriate action would be taken on the 3:
issues raised in the Petition within a reasonable time. I also have consid-cred a subsequent letter from the Petitioner dated April 30,1985, in reaching my decision. My decision in' this matter follows.
I DISCUSSION
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The Petitioner has been involved in the technical issues associated f'
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Petitioner's activities have been focused upon (1) criticizing the current methods used to assure adequate containment leak rates and (2) suggest-ing what Petitioner would consider to be improved methods to perform 1
containment leak rate tests. The NRC Staff has also been active in I
reviewing the adeqt.acy of the Commission's regulations regarding con-tainment leak rate testing. Leak rate testing of light water reactor con.
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tainments is a substantial undertaking. While the Commission's present j;
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requirements for leak rate testmg continue to prodde reasonable assur-ance that the public health assafety is adequately protected, these re-quirements are now over 11 years old and a substantial base of expen-ence esists to apply in seeking improsements to the regulations. In fact, one modi 6 cation to 10 C.F.R. Part 50, Appendix J, in the area of Type B tests was made. See 45 Fed. Reg. 2330 (1980) and 45 Fed. Reg.
i 62,789 (1980). The NRC Staff has under way the review of leak rate testing requirements with a view to see whether other modifications to these requirements are appropriate. Petitioner is well aware of these ac-tivities and has participated in them over the years, including participa-tion in the activities of Working Group ANS-56.8 of the Standards Com-mittee of the American Nuclear Society, the entity carrying out a detailed review and examination of methodologies appropriate for ade-quate containment leak rate testing. The Petitioner has also presented his concerns with respect to containment leak rate testmg directly to the NRC Staff on many occasions in the past in both written and oral form.
indeed, I have issued twice before Director's Decisions pursuant to 10 C.F.R. s 2.206 deahng with Peutioner's concerns in this area.' Conse-quentiy, both the nuclear industry and the NRC Staff have long had the benent of Petitioner's views with respect to containment leak rate testing.2 The current Petition raises essentially three issues. First, the Petition alleges that the equation used to calculate containment air mass at any l.
given time is wrong. This issue has been raised by the Petitioner in the i
past and, in fact, was the subject of an earlier Director's Decision issued g
by this office.) As noted in my earlier decision, the equation used in the standard of the American Nuclear Society ( ANS) and the American Na-l tional Standards Institute ( ANSI)* for calculation of containment air mass is not " wrong" as alleged by the Petitioner. The manner in which the mean containment temperature is calculated for use in the equation, however, is important. In this regard, ANSI ANS 56.8-1981 does not prescribe how to calculate the mean containment temperature. Either a
" mass-weighted mean temperature or a volume-weighted mean tempera-ture would be acceptable if the leak rate testing is properly conducted to assure stab!e conditions and the test data are properly evaluated. In es-sence, the equation is correct, but inadequately defines the temperature I Commemwahh Ediwa Co 4Las4Lle County stauon. Units I and 2s. DD 644,19 NRC 89: (1984);
Commonwa#A Ed.so Ce then station. Unit iL DD-85-2. 2i NRC 270 (19856 2 it should be noted that the Cornmnsion has plaed icek rate testmg for water <ooled power reactors on us Regulatory Agenda. Sec 50 Fed Reg 18.154 ci sry ( Apr 29.1985) 3Ser DD-844. wpro 19 NRC 4: 894.
4 ANst/ANs 56 8-i981,-Coritamrnent spiem Le mage Testmg Requerernents.
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term by allowing the assumption of a uniform density throughout the containment. The density may not, however, be uniform because the temperature may not be uniform. llence it is important to assure that the test is conducted under stable conditions. Withm the range of tem-perature variations experienced at tests conducted at nuclear facilities, the difference in leak rates using the assumption of uniform density has no safety significance. Consequently, while this is an area where im-provement may be made, such an improsement would be more correct technically but would produce no meaningful change in the conduct of containment leak rate tests.
The second issue raised by the Petitioner concerns ine use of the so-called weighting coefficients in determming contamment leak rates and the allegation that such weighting coefTicients may be manipulated to reach an acceptable result. This issue is also the subject of my earlier de-cision.' As noted in my earlier Decision, a properly conducted leak rate '
test would not contain the types of de0ciencies alleged by the Petitioner such as the use of unjustined weighting coefTicients. Such manipulation of data would be a violation of the Commission's regulations and would subject licensees to NRC enforcement action. In addition, to ensure compliance with the Commission's requirements regarding leak rate test-ing, NRC inspectors regularly observe the tests conducted by licensees and Jocument the results of their observations in Inspection Reports.
The third issue raised by the Petitioner concerns alleged inadequacies in certain software used to conduct containment leak rate testing. The Petitioner alleges that the Volumetrics computer program for processing leak rate test data does not perform addition and/or division correctly which consequently may lead to underestimating leak rates to the degree that such leak rates would appear to be within normal limits. The Peti-tioner suggests that such may be the case with respect to Zion Unit I leak rate testing, and suggests that other facilities may be employing the same defective software. Petitioner further alleges that the Volumetrics i
computer prograr-has a " fraudulent" option which permits doubling of the weighting coefficients and that this " fraudulent" optiorl has been used during the November 1983 Zion test and possibly also in the July 1984 Zion test.
The Volumetrics computer program (software) was used in conducting the November / December 1984 containment integrated leak rate test (CILRT) at the Detroit Edison Company's Fermi Unit 2 plant. NRC inspectors, as a matter of course, independently verify CILRT results. In the case of the Fermi Unit 2 test, the NRC inspectors found that the 5 DD-84-6, satua.19 NRC at 894 95.
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Volumetrics computer program produced acceptable results. There was I
no evidence of any manipulation of subvolume weighung coefDcients to bias the data. Specific data sets from this test have also been checked for I
alleged inadequacies in the Volumetrics software, and it has been deter-j mined that the Volumetrics computer program correctly processes the data. Consequently, the Staff has not found it necessary to review the j
Volumetne software itself. Also, contrary to statements made by the j
Petitioner, the Volumetncs software has never been used for the in-tegrated leak rate testing of the Zion containments. Again, the Staff has independently verined that the computer program used in the Zion tests produced correct results.
While the Petition raises three general concerns, Petitioner makes a number of allegations which are specine to the Zion Unit I facility. Par-ticularly, the Petitioner contends that the July 1984 containment leak rate test for Zion Umt I was performed in violation of regulatory require-3 ments. The Petitioner argues that the July 1984 containment leak rate i
test at Zion Unit I may hase used the Volumetrics software permitting doubling of weightmg coelTicients and incorrect addition and/or subtrac-tion. Further, th6 Petiuoner argues that meaningless "verincation" tests j
were performed during the Zion Unit I test on July 29,1984. The Peti-tioner alleges that a verification test failed and that, following the failure, the reasons for the failure were not analyzed. Instead, an " unlawfully short test" with the same incorrect weight coefficients used earlier was performed and successfully" veri 0ed. Petitioner questions this approach
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as no repair was done between tests and containment conditions for i
both tests were identical. The Petitioner further argues that, based on f
his analysis of certain data sets for the Zion Unit I test of July 1984, and I
upon his use of supposedly more realistic weight coefficients, he has concluded that the Zion Unit I containment leak rates are in excess of regulatory limits.
As stated above, the Volumetrics software was not used in the Zion tests. Nevertheless, the Petitioner presented a data set of nine tempera-ture readings for a particular subvolume to show that the Volumetrics computer program does not correctly calculate the average containment temperature. The Petitioner, however, mistakenly included the readings of.two channels of temperature sensors (numbers 4 and 14) that had l-been declared "out-of-service" through the course of the test. In fact, the computer program in use (not the Volumetrics program) was averag-ing, correctly, the readings of the seven "in-service" channels.
With regard to the Petitioner's allegations concerning the validity of the verification test for the July 1984 Zion CILRT test, the Petitioner al-leges that no attempt was made to analyze the cause of the inability to 147
imtially meet the test acceptance criterion. In fact. after conducting the verification tests, the Licensee did speculate on the cause and proceeded to take corrective action It was thought that the serification test equip-ment may have been leakmg during the CILRT (which would not have occurred during the subsequent serification test with the equipment in use) since the imposed leak rate was almost identical to the measured (composite) leak rate. The Licensee made adju3tments to the verincation test equipment and proceeded to conduct a second CILRT. The test was discontinued aftes 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> since the results were substantially the same as those obtained during the first CILRT. A second serification test was then conducted using a larger imposed leak rate (1.1 L, versus 0.82 L,),
which is permissible. This resulted in a composite leak rate greater than 0.1 weight percent per day (wt %/ day). Since the accuracy of measuring leak rates much less than 0.1 wt %/ day is considered poor, conducting a verification test having a composite leak rate greater than 0.1 wt %/ day.
improves the accuracy of the test. The NRC's inspection Ryort*
reviewed the circumstances of the verification test related above. The report concludes that the test did confirm the acceptability of the CILRT.
CONCLUSION Petitioner sought immediate suspension of all containment leak rate testing and immediate initiation of actions to ban the use of Volumetrics software until it is debugged and revalidated. For the reasons stated in this Decision, the Petitioner's request for relief is denied. As provided by 10 C.F.R. { 2.206(c), a copy of this Decision will be Gled with the Secretary for the Commission's review.
liarold R. Denton, Director Office of Nuclear Reactor Regulation Dated at Rethesda, Maryland, this 3rd day of July 1985.
6 Letter so C. Reed. Vice President. Commonwealth Ediwn Company from J. Kepister. Regionai Ad.
mimstrator. Region lii U.s. Nuclear Regulatory Commission, dated seriember 7.1984 transmisiing inspection Repon No 50 295/84 ir; 50-304/84-li.
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Cite as 22 NRC 149 (1985)
DD 8511
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I UNITED STATES OF AMERICA
['
NUCLEAR REGULATORY COMMISSION I
s I'.
OFFICE OF NUCLEAR REACTOR REGULATION i
Harold R. Denton, Director
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0; mp in the Matter of Docket Nos. 50-352 50-353
- C (10 C.F.R. 9 2.206)
PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2)
July 29,1985 The Director of the Office of Nuciear Reactor Regulation denies the l
Petition of Robert L. Anthony and Friends of the Earth (Petitioners) seeking the Directors' immediate initiation of show cause proceedings to resoke the operating license for the Limerick Generating Station Unit f
I of the Philadelphia Electric Company (Licensee). The Petitioners i:
argued that certain exemptions granted to the Licensee were improperly l
granted and that Licensee Event Reports, inspection Reports and certain i
correspondence demonstrate that licensed activities at the Limerick I
facility are being. conducted in an unsafe fashion and warrant license f.
revocation. Finally, Petitioners argue that the Independent Design i
Verification Program undertaken fm the Limerick facility indicates that
' the design of the facility is inadequaw in his decision, the Director also l
considered the comments of Mr. Frank komano submitted on March l
11, 1985, and the comments of Mr. Marvin Lewis submitted on Febru-l ary 15,1985, on issues related to the Limerick facihty.
RULES OF PRACTICE: SilOW CAUSE PROCEEDINGS Where no specific factual basis is provided by the Petitioners to sup-port a claim that exemptions were improvidently granted, the Director I
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of the OfGee of Nuclear Reactor Regulation need take no further action under 10 C.F.R. s 2.206 with respect to Petitioners' claims.
RULES OF PRACTICE: SilOW CAUSE PROCEEDINGS NRC inspection activities may discover violations of NRC require-ments both in the construction and operation of facilities. Such violations are generally of minor significance. If truly major deficiencies on the part of a licensee are identiGed, the agency is authorized to issue orders, including stop-work orders, to assure appropriate remedial action.
RULES OF PRACTICE: SIIOW CAUSE PROCEEDINGS isolated deficiencies in a licensee's program of construction or opera-tion do not necessarily undermine the program to such an extent as to' give rise to a signiGeant ' safety concern. What is required is a careful as-sessment of the signiGeance of the deGeiencies, and the corrective action taken to preclude recurrence.
RULES OF PRACTICE: SilOW CAUSE PROCEEDINGS A request pursuant to f 2.206 for institution of show cause proceed-ings shall set forth the facts that constitute the bases for the request. In the absence of the speciGc factual basis called for by the regulation, any inquiry must necessarily be limited.
RULES OF PRACTICE: SilOW CAUSE PROCEEDINGS It is the NRC's policy to pursue all sreciGc allegations with potential safety signincance. liowever, vague and unspeciGed claims do not war-rant further inquiry.
RULES OF PRACTICE: SilOW CAUSE PROCEEDINGS The remedy afforded by { 2.206 should not be used as a means to reopen issues previously adjudicated. In the absence of any signiGeant new information, neither a party to a Commission adjudicatory proceed-ing nor a nonparty may raise issues previously adjudicated for considera-tion under 6 2.206.
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DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 INTRODUCTION On December 23, 1984, Robert L. Anthony on behalf of himself and Friends of the Earth (Petitioners) filed with the Director of the Of0cc of Inspection and Enforcement a Peution seeking that the Director immedi-ately institute show cause proceedings to revoke License No. NPF-27 (operatmg license) issued to the Phila#'phia Electric Company (PECo or the Licensee). The operating licene was issued on October 26,1984, authoriang fuel loading and other low-power activities at the Licensee's Limerick Generating Station, Umt I (Limerick facility). Although the Petition was directed to the OITice of Inspection and Enforcement, the Of0ce of Nuclear Reactor Regulation will respond to the Petition as it deals with matters related to a license issued by this Of0cc. As a basis for their request. Petitioners argue that certain e.semptions granted to the Licensee when License No. NPF-27 was issued were improperly granted and that the public health and safety was thereby endangered.
The Petiooners further argue that Licensee Esent Reports issued by the Licensee smce the commencement of operation under the low-power license are further indication that activities under the license are being conducted in an unsafe fashion. Thirdly, the Petition makes reference to various inspecuon Reports issued by the NRC and to correspondence between the Licensee and the NRC as identifying additiornal deliciencies warrantmg resocation of the license. Fmally, the Petitioners argue that the Independent Design Veri 0 cation Program (IDVP) undertaken for the Limerick facility indicates that the design of the Limerick facility is inadequate and that license resocation is called for.
On February 13, 1985, I acknowledged receipt of the Petiuon and m-formed the Peuuoners that the Peuuon would be treated under 10 C.F.R. 2.206 of the Commission's regulations and that a formal decision with respect to it would be issued within a reasonable time. I further in-formed the Peuuoners that, for the reasons set out m my letter, I saw no need to take any immediate actions with respect to the concerns raised by the Petition. I specifically noted in my letter that all of the mat-ters raised by the Petition were ones of which the NRC Staff was well aware.
Mr. Anthony has provided the Nuclear Regulatory Commission with additional views subsequent to the Oling of the Petition dated December 23, 1984. On February 25,1985, Mr. Anthony provided additional com-ments with respect to the alleged unsafe operation of the Limerick facili-ty and again urged that the Commission issue an order to the Licensee 151 f
to show cause why License No. NFP-27 should not be revoked. On April 5,1985, hir. Anthony reiterated his request with respect to the institution of show cause proceedings. On Stay 9,1985, Str. Anthony submitted additional comments mainly alleging siolation by the Licensee of certain environmental conditions of License No. NPF-27.' I hase taken Afr. Anthony's additional siews into account in reaching my final decision with respect to the Petition.
On February 15, 1985, I received the comments of Afr. 51arvin 1.
Lewis supporting the Petition of Str. Anthony, er al. I:icknowledged Nlr.
Lewis' letter on Starch 26, 1985, and informed him that his comments would be considered in reaching my final decision with respect to the Petition.
On Alarch II,1985, I received the comments of Atr. Frank R.
Romano who joined with Af r. Anthony, er al., in calling for the institu-tion of show cause proceedings. I acknowledged Ntr. Romano's letter on Stay 23,1985, and informed him that his comments would also be con-sidered in reaching my final decision with respect to the Petition.
The Licensee has also submitted its comments with respect to Petition of Nir. Anthony, et al. These comments were submitted on February 6, and April 12,1985, and I have considered them in reaching my decision.
Sly decision in this matter follows.
DISCUSSION Petitioners seek the institution of show cause proceedings pursuant to 10 C.F.R. s 2.202 to revoke License No. NPF-27. The issuance of a show cause order is appropriate only where substantial health or safety issues have been raised.2 This is the standard which I have applied to the concerns discussed in this Decision to determine whether an enforce-ment proceeding pursuant to 6 2.202 is warranted.
Petitioners'submittals raise essentially three general issues. First, the Petitioners question certain exemptions which have been issued for the Limerick facility. Secondly, Petitioners make reference to numerous pieces of correspondence between the NRC Staff and the Licensee, to a number of Licensee Event Reports (LERs) which have been submitted I ro the entent the May 9.1985 rihns by Penisoner Anthony raises concerns muh respect to the use or coobng mater for she Limerick facihty. these concerns are very samilar to torwerns addressed in a Direc.
tor's Decis on Under 10 C F R. t 2 206 auwed on 4tay 17.1%5. and I consider shai Decnson responsne to these issues Scr DD-85-8. 28 NRC 1$61 il985L 2 consoMaird Edes e Co n/ Ne.v rar4 Undean Point. Umis 1. 2. and 31. CLI 75 8, 2 NRC 17). 876 (1975); Waskatron Ps,Nar Poner SuppA S sica (wrPss Nudear Proset's No. 27. 00-84 7.19 NRC R9 3
- 9. 92311984 L 152 l
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f by the Licensee to the NRC since License No. NPF-27 has been issued, and to a variety of NRC Inspection Report findings, apparently to sup-port the proposition that the Limerick facility contains faulty design fea-tures and has experienced a poor level of performance by facility person-nel since the facility commenced operation. Consequently, it is suggested that continued operation poses an undue risk to public health and safety.
Finally, the Petitioners point to the IDVP performed for the Licensee by Torrey Pines Technology (Torrey Pines) as further support for the Peti-tioners' argument that the design of the Limerick facility is faulty or that the design features of the facility cannot be confirmed to operate as in.
tended.
Prior to d scussing each one of these areas, it is important to note that i
much of the content of Petitioners'submittals consists of references to correspondence, inspection Reports, and LERs. On the basis of such references, Petitioners argue that the facility design is inadequate and i
that the faality is poorly operated. While I intend to discuss each of these issues generally, I do not intend to respond specifically to each item which has been referenced.
I view the references as supportive of the more general concerns raised by the Petitioners. I see no benefit and no need to address each reference on its merits. What is important is whether or not the items referred to by Petitioners taken together raise a substantial safety con-cern warranting institution of enforcement proceedings. This approach is particularly appropriate as the NRC has been well aware of the matters referred to by Petitioners. It is important to recognize that the Petition provides no new information but only restates information or references documentation of which the NRC was already aware. In this context, then, it is appropriate to respond to the principal concerns of the Petition rather than responding with a detailed discussion of each of the refer-enced items.)
i A.
Esemptions from Specific Regulations The Petition argues that certain exemptions granted to the Licensee when License No. NPF-27 was issued were improvidently granted and that the public health and safety are thereby endangered. Specific exemp-tions identified are conce.ned with control room habitability, the standby gas treatment system, compliance with 10 C.F.R. Part 50, Appendix J, and the adequacy ofisolation valves for certain systems. Petitioners' con-cerns with regard to certain exemptions issued for the Limerick facility ACf DD-84 7. wpra.19 NRC at W 0$
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may be categorized ac simply disagreement with conclusions reached by the NRC Staff and the Licensee regarding the appropriateness of the ex-emption at issue. No specific factual basis is presided by the Petitioners to support the claim that the exemptions were improvidently granted. In the absence of such specific factual basis, I need take no further action with respect to Petitioners' claims. Section 2.206(a) requires that Peti-tioners " set forth the facts that constitute the basis for the request."
Absent such a showing, I need take no action on the Petition.' Although I decline to take action on the exemption concerns of the Petitioners in the absence of any factual basis, I have discussed the relevant portions of the StalTs evaluations to make clear that the Petitioners' concerns are unwarranted.
Remote Shutdown System Redundancy On October 25, 1984, Licensee requested an exemption from certain requirements of General Design Criterion (GDC) 19 regarding the remote shutdown capability for the Limerick facility.
As discussed in s 7.4.0 of the Limerick Safety Evaluation Report (SER), NUREG-0991, issued in August 1983, the Limerick facility is provided with a remote shutdown system outside of the control room from which the reactor can be shut down in a safe and orderly fashion.
The design basis for the remote shutdown system is to elTect a safe shut-down under the, following conditions: (1) Inaccessibility of the main control room with the plant operating at or less than design power condi-tions, (2) loss of ofTsite power and (3) loss of turbine control, feedwater control and steam bypass.
The SER noted that the design submitted by the Licensee did not in-ciude redundancy in the controls and indication provided for the remote shutdown system. The Licensee had committed to modify the design to achiese such redundancy prior to initial plant startup but subsequently requested an exemption from full compliance with GDC 19 for plant op-eration through the first fuel cycle. SER Supplement No. 3 provided the NRC StalTs evaluation supporting an exemption from the specific re-quirements of GDC 19 for the period of operation up to 5% of rated power. The StalTs evaluation was based on the fact that there would be minimal decay heat removal requirements prior to exceeding 5% power and that the likelihood of simultaneously losing the main control room safe shutdown capabilities and the existing single remote shutdown train 4
tmuJrchu Ehrv Co. (Lunerick Generatirig station. Unets I and2),00-8213.16 NRC 2115,2121 41982) and cases there cited Sn aho CLI 73-8. supra which mstructs at 2 NRc 175 that the Dwestor m conuderms a requess pursuant to g 2.206 must rnake an inquiry appropreste to the facts muerted.
154 i
was highly unkkely for the short period of time following initial criticality and prior to exceeding 5% power. On this basis, the StalT found that an exemption from full compliance with GDC 19 was justified for initial startup and operation up to 5% power.
Since the issuance of SER Supplement No. 3, the Staff has received additional mformation describing how redundancy will be achieved for operation beyond 5% power and is currently preparing a safety evaluation on this subject. The Staff will require that this issue be suitably resolved prior to authorizmg operation beyond the 5% power level.
Refueling Area Connection to the Standby Gas Treatment System On September 21, 1984, the Licensee requested an exemption from GDC 61 regarding the connection of the Standby Gas Treatment System (SGTS) to the refuehng area. The Licensee requested an exemption to delay the connection of the SGTS until prior to the Grst movement ofir-radiated fuel into the refuehng area.
The StafT evaluated this issue in SER Supplements No. 2 and 3. As noted therem, the Licensee has committed to completely isolate the refueling area from the Unit I secondary containment zone during the time the exemption is permitted. Furthermore, there will be no irradiat-ed fuel permitted in the refuehng area until the SGTS is operable. Thus, there will be no radioactivity in the refueling area to be released during the Orst fuel cycle and consequently no need to have the SGTS opera-tional. The commitments made by the Licensee to ensure that this will be the case have been incorporated as a condition to the operating license. These actions predude the introduction of radioactivity into the refuehng area and virtua!!y chminate the risk of discharging radioactive gas to the atmosphere in case of an accident.
Containment Leakage Rate Testing Program On September 24, 1984, the Licensee requested an exemption with regard to certain specific elements of the Limeric< Containment Leakage Rate Testing Program which did not meet the explicit requirements of Appendix J to 10 C.F.R. Part 50. These exemptions requested: (1) seal testing instead of a containment airlock test whenever maintenance had not been performed on the airlock (2) testing of the main steam isolation valve (MSIV) leakage at a pressure less than the containment pressure for design basis accidents (P) and exclusion of the measured leakage from the combined local leak rate test results, (3) no local leak
~
rate testing of traversing in-core probe shear valves and (4) a one-time 155
esemption from the requirement to perform local leak rate t'esting on sesen Residual !! cat Removal System (RilRS) relief valses.
As stated in s 6.2.6.4 of Supplement No. 3 to the SER, the Licensee's requested exemption regarding the airlock testmg was found acceptable by the NRC Staff. Appendix J,1 Ill.D.2(b)(ii) requires that "[alir locks opened during periods when containment integrity is not required by the plant's Technical Specifications shall be tested at the end of such periods at not less than P."
In heu of this requirement, the Licensee requested that the oserall air-lock leakage test at P, be conducted only when maintenance has been performed on the airlock that could affect the airlock sealing capability.
The Licensee stated that a full pressure test at P, wdl require installing strongbacks on the inner door which is a cumbersome process requiring at least 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. The Licensee further stated that the airlock leaktight-ness is assured if no maintenance w hich could affect the ability of the air-lock to seal has been performed, by compliance with the 6 month penodic test requirements of 1 Ill.D.2(b)(i) and the 3-day test require-ments of1 fil.D.2(b)(iii) of Appendix J.
Accordingly, the Staff concluded that the Licensee may substitute the seal leakage test for the full pressure test of 1 !!!.D.2(b)(ii) when no maintenance has been perforrped on an airlock. Whenever maintenance has been performed on an airlock, the requirements of 1 lil.D.2(b)(ii) must still be met by the Licensee as reflected in the Plant's Technical Specifications.
As stated in { 6.2.6 of the SER and Supplement No. 3 to the SER, the Licensee requested an exemption regarding testing the main steam isola-tion valves (NISIV) at a pressure less than the containment peak pres-sure and excluding the measured leakage from the combined local leak rate test results.
Each main steam line is provided with two NISIVs that are positioned to provide better scaling in the direction of post-accident containment at-mosphere leakage. In the event of a LOCA, the main steam leakage con-trol system will maintain a negative pressure between the NISIVs. The effluent will be discharged into a volume where it will be processed by the Standby Gas Treatment System before being released to the envi-rons. The design of the NISIVs is such that testing in the reverse direc-tion tends to unseat the valve. Testing of the two valves simultaneously, between the valves, at design pressure, would lift the disc at the inboard valve. This would result in a meaningless test. The proposed test calls for a test pressure of 25 psig to avoid hfting the disc of the inboard valve. The total observed leakage through both valves (inboard and out-board) is then conservatively assigned to the penetration. The NRC 156 1
/
Staff concluded, based on the above rationale, that this test procedure is acceptable. Furthermore, the Staff concluded that excluding the leakage from the summation for the local leak rate tests is acceptable because the leakage has been accounted for separately in the radiological analysis of the site.
As stated in f 6.2.6 of the SER, the Licensee requested an exemption regarding the performance oflocal leak rate testing of traversing in-core probe (TIP) shear vahes. The shear valve, by definition, if tested would be destroyed thus requiring replacement to permit the passage of the TIP during normal operations. Therefore the Staff found acceptable the replacement of the Appendix J leakage test requirement with selected i
bench tests and mainienance procedures that ensure that the valves will l
perform their function when called upon.
1 As stated in s 6.2.6 of the SER, the request for a one-time exemption i
from the requirement to perform localleak rate testing on seven Residu-l al lleat Removal system valves was found acceptable. On the basis that i
these vahes were exposed to the initial Integrated Leak Rate Test (ILRT) and that any leakage past these valves would have been included in the ILRT test results, the StafT believes that it is unlikely that degrada-tion in the sahes will occur during the period of the exemption in the first fuel cycle.
Containment Isolation On September 21, 1984 the Licensee requested an exemption frorh GDC 56 regarding the containment isolation valves for the hydrogen recombiners and the Drywell Chilled Water and Reactor Enclosure Cool-ing Water systems.
The Licensee has prouded a detailed technical basis for its conclusion that the probability of releases from the subject hydrogen recombiner lines penetrating containment is low. The NRC Staff addressed the issue in s 6.2.4 of the SER and SER Supplements No. I and 3. As discussed in SER Supplement No.1, each of the two redundant hydrogen recombiner trains for post-accident hydrogen control has one automatic containment isolation valve in the line from the reaction chamber to the wet well.
The second isolation barrier for each line penetrating containment is considered by the Licensee to be the closed piping system of the. hydro-gen recombiner trains. This represents a deviation from the explicit re-quirements of GDC 56 for penetrations of the primary containment that connect directly to the containment atmosphere. GDC 56 generally re-quires two isolation valves in each line penetrating reactor containment.
The Licensee's evaluation that the system configuration, i.e., a closed IST l
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system outside containment, constitutes an acceptable is61ation barrier was accepted by the NRC StalT as adequate for the first fuel cycle until
. the second isolation valve is installed.
I The recombiner system was leak tested in conjunction with the con-tainment integrated leak rate test, so that the closed system rationale has been demonstrated and hence justified. Breach of the containment integrity would require a degradation of the recombiner system's compo-
{
nents along with a failure of an existing isolation valve, which is judged by the StalTto be unlikely during the first cycle of operation.
As discussed in f 6.2.4 of the SER and SER Supplement No. 3, each of the lines associated with the Drywell Chilled Water (DCW) and the Reactor Enclosure Cooling Water (RECW) systems which penetrate pri-mary containment have two isolation valves in them. The exemption re-quest of the Licensee was with respect to the requirement that all con-tainment isolation valves receive diverse containment automatic isola-tion signals. The Licensee requested that plant operation be permitted until the first refueling outage without having an automatic closure by di-verse containment isolation signals for DCW outboard containment iso-lation valves and the RECW inboard and outboard containment isolation valves. The Licensee has committed to provide all.of the containment l
isolation valves in these lines with diverse automatic isolation signals prior to startup after the first refueling outage. On the basis that (1)
}
these lines do not open directly to the containment atmosphere or to the reactor coolant boundary, (2) these lines are designed to withstand a seismic event, and (3) the Licensee has committed to provide special in-terim operating instructions to isolate these lines should a LOCA occur, the Staff determined that operation of the plant during the first cycle i
without automatic isolation of these valves is acceptable.
B.
Inadequate Design and Poor Plant Performance-The Petitioners appear to base their concerns with respect to plant per-formance principally upon the number and content of certain LERs i
which have been submitted by the Licensee regarding the Limerick facility, and the findings of a~ variety of NRC Inspection Reports, and e
the content of certain correspondence between the NRC Staff and the Licensee associated with the licensing of the Limerick facility.
' ' ^
The Petitioners have merely cited documents that have either been prepared by the NRC or submitted to the NRC. The Petitioners provide no new information or new analysis of the information in the documents and conclude, with no supporting evaluation, that the operating license should be revoked. In light of these conclusory arguments it might be 158 L
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appropriate to rest uoon the position that the Petitioners have provided no justification for the relief requested for each of the three categories of documents cited. I will, however, provide background and analysis to ad-dress the Petitioners' concerns that will: (1) explain how that docu-mentation fits within the regulatory process; (2) summarize the Petition-crs' apparent concerns; and O) discuss and analyze the documt.ntation in making an overall assessment as to the lack of significance in the cited documentation in the context of continued plant operation.
NRCStaff-Licensee Correspondence in order to obtain a license from the NRC, a potential Licensee must
[
submit an application for agency review. In the proecss of that resiew, the NRC Staff often finds the need for additional information from the i
Licensee to justify the adequacy of the Licensee's proposed design.
There follows then a series of correspondence between the Licensee and the NRC Staff discussing and documenting a wide variety of design and-operational issues related to the facility which is the subject of the licens-ing review. The correspondence may be extensive and extend over a lengthy period of time given the complexity of nuclear facilities. It is to this correspondence that the Petitioners point as a basis for alleged safety concerns at the Limerick facility. Indeed,just the opposite is true.
}
With respect to the issues identified by the Staff, which are the subject of the correspondence referred to by Petitioners, the correspondence is t
evidence that the StafTis conducting a thorough and complete review of the issues _ of significance to assure that the facility will be properly de-signed and constructed.5 5 Peuuoners" references to correspondence are generally unspectrec. The Peuuoners dochowever. pro-
. vide specificity with respect to one mauer The Peuuon states that several Lecensee letters on tornado missiles and danuge to the Ulumate Heat smk ormt aliogether the ihreat to safe shutdown from the design rastmay emplosen which could simultaneously collapse the coolms towers and disable the water mtake structure at the nver? Pennon of December 23.1984, at 6. The stafr does not rmd it credible to require the assumpuon of a hazardous mind event, i.e.. a tornado sesere enough to disable the Ulumate Hext smk concurrent with a design bases transportauon accident such as a railway boncar emplosion. The Peuuon proudes no basis for such an assumpuon. Assuming a railroad boscar emploton of sufrecient severny to disable the nonsafety-related mtake structure and the coohng towers a highly unhkely event m itself. then the safety-related Ulumate Heat sink spray. pond renums ao safely shut down the reactor.
Most importantly. Petiooner foe has already had a full opportumty to present this issue to the agency in the Limerick operaung beenw proceeding. Ser order (Concerning Proposed foe Contenuons on Hanrds from Irtdustrsal Acusitiesi. essued by the Licensing Board sutmg m the Limerick operstmg hcense proceeding on Nosember27.1912 (unpubbshed). dismisung an FOE contennon regardmg pro-pane railroad car emplosons for mant of an adequate basis. Havmg had an opportunny to present this assue en the operaung hcensee proceeding Peuttoner foe 'may not now use the 6 2.206 procedure to seek its reconsiderahoe Src Gearra! Pub!x Cuhres %drar Corp. (Three Mile idand Nuclear stauon, Unns 1 and 2). (oyster Creek Nuctear Generstmg stauon). CLI 85-4. 21 NRC $61. 5464 (1985L 159
Inspection Reports The objectives of the NRC inspection program are to:
(a) assess the safety status of the Licensee systems - both admin-istrative and hardware; (b) verify Licensee compliance with NRC rules, regulations, orders and license conditions; (c) assure timely corrective actions are implemented to prevent recurrence ofidentified problems; (d) identify generic issues; (e) provide feedback to related NRC organizations such as program offices, hearing boards, and Staff 00 ices on issues of concern.
The Regional Staffimplements these objectives by performing inspec-tions on nuclear power reactors while under construction and throughout the operational lifespan of the unit. Thus, as a reactor plant progresses' through the phases of design, construction, preoperational readiness, startup, operation and decommissioning, the inspection program changes to meet the specific needs of each phase. An onsite Resident inspector provides tt continuous inspection-regulatory presence, as well as providing a direct contact between NRC management and the licen-see. The inspection activity of the Resident Inspector is supplemented by professionals from the Regional Staff who perform specialized inspec-tions in a wide variety of engineering and system disciplines, ranging from civil and structural to health physics and reactor core physics. The specialist inspectors provide a perspective that is different from, but complementary to, that of the Resident who by necessity is a generalist.
Regional inspection findings are documented in inspection Reports.
These inspection activities examine the licensee's performance in a wide
, variety of areas to assure that the licensee is conducting licensed activi-ties safely. The activities undertaken are of an audit nature, spot check-ing licensee performance in order to form conclusions with respect to the licensee's overall performance.*
In addition to conducting its generalinspection program through Resi-dent and Regional personnel, a periodic Systematic Appraisal of Licensee Performance (SALP) is conducted by a review board of NRC Staff for the purpose of making an overall judgment as to the adequacy of the 6 The audit type NRC mspecuon activmes can be clearly understood with reference to a matter raise bv the Petmoners dealms with certain surseillance tests required or the Licensee enor to mmal cnticali-s ty. Peutioners argue at page 5 or the February 25.1985 subm ital or the absence of any cerurication by the asency that all 120 surveillance tesis required by teense No. NPF-27 have been reuewed by the NRC. There es no requirement for any such cerurecation nor does the SRC Sencrally mspect l00% or the acuvities m a given area. In this msiance. partial reuew or surveillante tesung was conducted by the SRC and the tesam3 conducted by the Licensee was found asceptable.
160 l
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licensee's performance based upon a review of the mspections conducted oser the assessment period, normally i year. A rating is given to the licensee in each of several functional areas (e.g., construction activities) based on the results of this SALP evaluation. It is important to stress that it is in the SALP report that the overall signincance of inspection trends and findings is identified. For this reason, the latest S ALP report, issued for the Limerick facility on April 26, 1985, will be extensively cited.
Inspections, in general, result in either acceptable findmgs, violations of NRC requirements, or unresolved issues. Violations'are documented in a Notice of Violation issued to the licensee. Corrective action is re-quired. See 10 C.F.R. ( 2.201. The nature, extent and timing of correc-tive action is renewed by the NRC to assure that it is adequate to resolve the problems found. Unresolsed items are matters which do not necessarily rise to violations of NRC requirements but are of concern to NRC inspectors and warrant further review. After further review the inspector may determine the unresolved issue is acceptable, or may determine that it should be a violation.
It is important to note that while the commission expects licensees to pay meticulous attention to detail and achieve a high standard of compli-ance with NRC requirements, errors may occur.7 NRC inspection activi-ties discover siolations of NRC requirements both in the construction and operation of facilities. Such violations are generally of minor signifi-cance. If major violations in construction or operational activities are identified, escalated enforcement action is considered by the agency
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including the issuance of civil penalties. If a truly major deficiency or
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deficiencies on the part of a licensee are identified through the inspection process, or otherwise, the agency is authorized to issue a variety of orders, including stop-work orders, to assure appropriate remedial ac-tion.
1 Isolated deficiencies in the hcensee's program, however, do not I
.necessarily undermine the program to such an extent as to give rise to a significant safety concern.' What is required, when a violation is identi-f 7 Unmn (krrrar Co. (Callaway Plant. Umi it. ALAB 740.18 NRC 34). 34611983), H aihmiron Pubhc Poner Supph Sevem (W PPss Ni. lear Proicet No. 2). DD-84 7.19 NRC 899,90fe (19841 A hhough these cases refer to facshly construcuon. the same principle apphes to the facshly operation. w hele hcen-sees are espected to pay meticulous aliention to detail and athieve a high standard of comphance with NRC requirernents srv General staicment of Pohcy and Procedure for NRC Enforcement Acuens.10 C F R Part 2. Appenda C. t 1. violanons an the area or reactor operauons at seventy 1tvels lv and v are not generally the sutvect orc =vil penahies. /d, t v h 8 kr. e.g. H nronim fkrera Po rr Co. droint Beach Nuclear Plant. IJmis I and 2), DD-8).13.18
- %RC 721. 722 (194): where cualated enforcement meason including swuance of an order so show cause was considered mapproprute due to the irmsted safeiy segmrscance or the violanons mvolved at an (Caermurdt 161 i
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i fied, is a careful assessment as to the significance of the violation, its cause, and the corrective action taken to preclude recurrence.
The Petitioners cite a number of Inspection Reports as identifying deliciencies in Limerick plant performance. Sec, for example, the letter of February 25,1985, at 3. Petitioners also refer to the latest SALP report and a variety of other inspection Reports as documenting numer-ous personnel errors by the Limerick Staff.'
The NRC inspection program at Limerick has been extensive. For the latest SALP period alone (December !,1983, through November 30, 1984) the NRC has expended nearly 9000 inspector-hours c.t Limerick, focusing in the areas of construction, preoperational and startup testing, operational readiness and plant operations. Nsed upon that inspection effort, I see no basis for the relief requested by Petitioners, as explained in more detail below.
Eleven inspections were conducted by Regional specialists in addition to continuing inspections by the Resident inspectors in the area of con-struction during the latest SALP review period. These inspections included routine reviews of areas such as piping, electrical, instrumenta-tion and controls, welding, preservice inspection and engineering / design for Unit 1, and storage maintenance for Unit 2. Special team inspections were conducted of the as-built configuration of the plant and ofinstalla-tion practices applied to the Power Generation. Control Complex (PGCC). The NRC Nondestructive Examination (NDE) Van was used to independently evaluate the quality of welding and a special team in-spection was conducted at the San Francisco olTice of the architect /engi-neer, liechtel Power, to examine FSAR pipe break analyses and the use of certain computer codes. Further, a substantial amount of inspection operaung plant See afin fermon few Emcretary and RemedW.4 cree, cLI-784. 7 NRC 400. 405 (1978) mhere the Commission noted that not every regulatory violauon mandated bcense suspenuon or faility shutdow n.
'The auertsons made by the Petitioners with respett to inspection Reports consin enenually of a re.
statement of Inspection Report rmdmss. In one area. however, the Peuuon claims that an NRC Inspec-ton Report was issued with willful decepoveness. See Letier of December 23.1984, al 5. Pettemners suggest that the incident or Augus 22.1984, when a fuct bundle hit the spent fuel pool wall. consistuted a violation or NRC requirements and consequemly the rmding in the inspection Report, specifwally In.
spection Report No 84 4). whah conctoded that no violations were idenufied, was millfully deceptise.
in order to clarify the baus for the blRC findmg the followmg dncuuson n provided. Durms the course of the new fuel receipt and mspection process, NRC mspectors verified that adequate procedures had es.
ined to perform each activity involved. Movement or new fuel into the spem (uct ratks eas an acuvity under the control of hcensed operators oho had been trairied m this proceu After the fuel bundle hit the pool waii, the Licensee was found to have implemented a conservative course 01 correctise actions.
These acuens included removal of the affected bundle from the root. remosal of the fuel buratic chan net, and a remspecuan of the bundle Because the NRC deiermined that the Licensee's approa(h to thn problem was adcouate arvj that the event was nolated m nature, no smisuons of NRC requirements were idenuried.
e 162
effort was expended closing out open inspection items prior to issuance of the operatmg license.
The previous SALP assessment had found construction performance to be at a high level, concluding construction-related activities were well performed and managed, and that they exhibited good quality.
The Licensee maintained this good performance through the latest i
SALP assessment period. Significant amounts of NRC inspection etTort bore out the conclusion that the quality of construction was maintained at a high level. The as-built team inspection performed a thorough review of the emergency service water system and the high pressure coolant injection system installation, including pipe supports and weld-ing, electrical power and instrumentation associated with the two sys-tems. The team compared the system con 0gurations to the FSAR de-i
]
scriptions and performed independent measurements of piping and sup-port details. Minor discrepancies were identiGed which were suitably ad-dressed by Licensee management prior to licensing.
The NDE Van, along with an additional extensive structural welding inspection, independently verified the quality of ASME and AWS weld-ing at Limerick. Included in these two inspections were independent checks of approximately 500 welds of various types and con 0gurations.
Further, these and additionalinspections of welding and welder qualifica-I tions determined that both the Licensee and its constructor maintained good control over welding activities.
l I.
Fourteen mspections of preoperational testing activities and six inspec-l tions of startup testing activities were performed by Region-based inspectors during the-lanst SALP review period. In addition, the Resi-l dent inspectors examined these areas on a daily basis. Based on an ex-tensive review of tests and test results by the NRC, it appears that the j
test program has been adequately managed to assure satisfactory per.
formance of those plant systems covered by it.
The Licensee's startup test program at Limerick used information ob-.
j tained from other licensees with recent successful startup program ex-perience. The Licensee utilized the program from Susquehanna Steam Electric Station as a basis to develop its own startup program.
The Licensee assigned General Electric (GE) as the lead organization to coordinate and implement the startup program with assistance from Hechtel. PECo personnel were responsible for the operation of the facili-ty during the program in accordance with the operating license. StafGng levels of the Licensee and its contractors have been adequate.
Schedules developed correctly displayed the logic necessary to conduct all required startup tests. Procedures to support the startup test program have been reviewed by the NRC and were found to be comprehensive l
I 163 l
t i
l
and technically adequate with the exception of the procedure for the Loss of Offsite Power Test which is not yet issued.
The interface between the General Electric startup personnel and Licensee operations personnel was observed to be working well with good coordination. GE startup engineers have been assigned to operating shifts so that continuity between startup and operations personnel can be maintained.
QA/QC coverage of the startup program to date has been acceptable.
QC was observed to proside surveillance coverage of the fuel load opera-tion and control rod drive startup tests. Extensive QC coverage and QA audits for the remainder of the program are planned.
Region-based inspectors conducted ten inspections in the operational readiness area during the latest SALP review period. These included review of the Licensee's readiness for fuel receipt, storage, transfer and inspection; the operations Quality Assurance (QA) program; nonli-censed StalT training; maintenance and design control programs; and 2
system acceptance by the station Staff. Additionally, a special team in-spection was conducted to compare the facility's proposed technical spec-ifications to as-built system conditions and to the implemented surveil-lance tev procedures.
Approximately I month prior to receipt of the operating license, the station implemented the normal control room shift rotation. Since that time, the normal station operating and administrative procedures have been enforced for the control of plant activities. Thus, all system testing, maintenance and modifications are being controlled by these approved procedures. In general, these activities hase been performed adequately.
Operator performance has been good;~ hotvever, some weaknesses have been identified. Initial inspections indicated that shift turnover con-trols needed improvement to minimize noise levels and to limit the i
number of nonessential personnel in the control room. The Licensee j
has implemented acceptable corrective actions for these issues.
The control room operators displayed a professional attitude toward plant operations. Activities such as fuel leading have been performed i
well. However, shortly after license issuance, NRC noted that morc operator vigilance and awareness toward control room annunciators were necessary. Improvements in this area were significant after Licen-see management implemented corrective actions, but similar impiove-ments for nonlicensed operators (e.g., radwaste operators) were also found to be necessary and have since been completed.
The Licensee's performance to date has not been error-free; however, as I have previously stated this is not the standard by which a license is issued. Based upon the Licensee's performance under its operating a
164
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license to date, the inspection of that performance, and the Licensee's response to identined problems and violations, the Licensee has demonstrateu the ability to operate the facihty safely and in conformance with NRC requirements.
It is important to note that the SALP process includes a review and analysis of Licensee uolations occurring within the assessment period to evaluate overall significance and identify trends to be forrially addressed by the Licensee. As depicted in Table 3 of the Limerick SALP report, dated April 26,1985, the violations of license requirements total sixteen Seserity Level IV, ten Severity Level V concerns and one deviation from license commitments. Appendix C of 10 C.F.R. Part 2, defines these categories of violations as mino'r and not cause for signincant con-cern. The Licensee is required to formally address these concerns, and respond in writing to the NRC, detailing the correcuve actions and re-suits achieved, corrective actions to prevent recurrence, and provide the date w hen full comphance.will be achieved.
Licensee Erent Reports (LERs)
Commission regulations. specifically 10 C.F.R. 4 50.73, require each licensee to make written reports of certain events to the NRC within cer-tain prescribed timeframes. These are the LERs to which the Petitioners refer. LERs are submitted to both the NRC headquarters and the Re-gional ofTices for consideration. LERs are reviewed in headquarters for identification of any trend in events and the need to alert licensees to generic imphcations associated with such events. In the short term, LERs are reuewed by both Regional and Resident personnel to assess signincance with respect to the particular facihty.'"
The Petitioners essentially argue that the Limerick facihty has dc0-cient equipment and procedures which, in interaction with poorly trained personnel and questionable supervision, have combined in pro-duce an alarming series of LERs. Petitioners argue that the LERs give only "a hint of the true picture of equipment failures, construction den-ciencies, procedural gaps, and maintenance and operator blunders by PECO at the Limerick plant." The Petitioners claim that the Licensee's own analysis of the various incidents that have occurred at the Limerick facility ascribes the causes to (1) personnel error, (2) design, manu.
facturing, construction and installation er.or, and (3) procedural defi-lHSer NORf G 102L "inenwe bem Herori spaem. 'seriember 190 for a more tomp6ete dmuv smn or she Il R 5piem. A surplemem so NUR f U.1022 mas also suued irt Ithrwary 1984 165
ciencies and other causes. Based on this performance by the Limenck facility and its personnel, the Petition urges that the NRC immediately institute proceedings pursuant to 10 C.F.R. s 2.206 by issuance of an order to show cause why NRC License No. NFP-27 for the Limerick facility should not be revoked.
The apparent trend in operator and technician errors was formally trar'smitted to the Licensee as a Regional concern in a January 11,1985 letter which forwarded an inspection Report contaimng Gndings involv-ing personnel errors and requested a response to this concern. Prior to the receipt of the Licensee's response, the Limerick SALP report for the period between December I,1983, and November 30,1984, also noted the trend in personnel errors.
The Licensee's initial response to the Regional concern was provided by letter dated February 11,1985, and a followup meeting was held with Licensee management regarding proposed corrective actions on February 22, 1985. A subsequent letter, dated April 2,1985, provided a detailed discussion of the Licensee's corrective actions in this area.
The Licensee's corrective action program addressed three principal areas for improvement. The improvement areas were plant modifications to correct conditions which provided opportunity for personnel errors, actions to address personnel areas, and programmatic improvements.
The improvement measures taken to address personnel errors included additional training, a stationwide Operator Excellence Program, and j
more direct management control of operations.
In addition to the above, Region I has conducted an independent review of reportable events at Limerick from the date of the Limerick fuel load license. October 26, 1984, through hfay 7,1985." The effort included telephone reports made under 10 C.F.R. f 50.72, and Licensee Event Reports (LERs) made under 10 C.F.R. 5 50.73. Since 10 C.F.R.
l 50.72 reports are based on preliminary information where the root cause of the event may not yet be clear, the Region I review primarily used the written LERs and, where additional details were needed, the RegionalInspection Reports concerning the events were used.
The Region I review reached the following conclusions. Of ninety four LERs submitted on events through Afay 7.1985, thirty six were caused by direct personnel error. Additional licensee initiatives in this area in-clude plant modiGcations which are in progress to prevent grounds and shorts during surveillance testing of various electronic instruments in re-stricted spaces, and to minimize spurious signals experienced during H
See f rklosures I and 2. R. starosseske (NRc) Memorandum to H. Thompwn (NRC). dated Wrch 1.1985. -Limerwk Operstmg Emperience." and updated LER summary. "Limern k LERs "
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venting and Giling ditTerential pressure instruments. Together these two problems contributed to eleven of the direct personnel error events. The corrective actions taken by the Licensee appear to have been effective as indicated by the recent decrease in the number of reportable esents i
related to direct personnel error; only ten of the thirty-six LERs caused I
by direct personnel error occurred after February 1,1985.
Equipment failures caused thirty-one of the ninety-four total events; seventeen of these events were due to the two separate repetitive prob-lems for which plant modiGeations are being pursued. One of the prob-lems involved ten control room ventilation isolations caused by the breaking of the sample tape for the control room chlorine analyzer.
Another problem involved seven reactor water cleanup (RWCU) system isolations caused by a spurious high temperature signal generated while reading RWCU system temperatures.
In considering whether a personnel error trend exists, the volume of Limerick LERs was reviewed considering the changes in reporting re-quirements due to the 1984 revision to 10 C.F.R. 6 50.73. Susquehanna 1, which was licensed to load fuel on July 17,1982, was the most recent lead unit BWR to start up in Region 1. During a comparable time period, about the Erst 2 months after receipt of an operating license, Susguchan-na reported ten LERs which resulted from personnel' error. Of Limer-ick's fourteen LERs caused by direct personnel error in 1984 only eight i
would have been reportable prior to January 1,1984. As an example, the actuation of an Emergency Safety Feature (ESF) such as an inadvert-ent system isolation is now reportable, whereas prior to January 1,1984, it was not. Of the forty-three LERs Limerick submitted in 1984, approxi-mately twenty-Ove were ESF actuations. In total, these facts suggest that Limerick's reportable personnel errors and volume of LERs do not vary signi0cantly from industry experience, when considering the changes in reporting requirements.
i Further, Region I has considered the safety signincance of the report-ed events and has determined that none of the events resulted in a seri-ous degradation of safety barriers. In addition, the StalT believes that the Licensee has been conservative in reporting events and that no reporta-ble events have occurred which were not reported.
Based upon the above. I conclude that the number and types of LERs from Limerick do not justify the relief requested but rather are consist-ent with a new plant startup and of a conservative threshold by the Licensee for reporting.
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The Independent Design Verification Program Petitioners make reference to the IDVP performed for the Limerick facihty Unit I Core Spray System by Torrey Pmes Technology. While ac-knowledging that the Torrey Pines report of November 1984 concludes that the system will probably function as planned, Petitioners note that there are two disturbing features which cast a cloud over the design work done by the General Electric Company (GE) and the planning and calculations for safety features performed by Bechtel Power Corp. The Petitioners' February 25, 1985 letter (at 5-6) stated that the GE design control program was missing ten items for the Core Spray System design needed to authenticate design adequacy. Petitioners question the after-the fact justi6 cation for these ten items and argue that the Core Spray System is suspect. Far more reaching, however, in the view of the Pets-tioners, is the uncertainty raised concerning other GE design work for.
Limerick for the same period in which document unavailability was identified for the Core Spray System. Petitioners question the adequacy of the overall GE design control program in light of the incomplete nature of the documentation associated with the Core Spray System and argue that the license for the Limerick facility should be resoked until proper veri 6 cation of this overall aspect of the GE design for equipment and systems has been completed.
As discussed in the Torrey Pines IDVP report and in Supplement No.
4 to the SER, Potential Finding Report No. 26 (PFR-026) identified that GE was unable to retrieve ten Engineering Review Memorandums (ERM) from its records. The ERM is required by GE procedures to document that technical design resiews have beca performed on GE design documents. The requirement to have retrievability was only ap-plicable to three of the subject ten ERMs (i.e., those that were generated during the period from June 12,1972 to 1974). The seven remaining ERMs were applicable to documents issued prior to June 12,1972, and hence the requirement for document retrievability was not applicable.
To ensure that the technical design reviews had been adequately per-formed, the Licensee authorized GE to re-review the ten subject design documents. The results of this re review produced no hardware changes to the original design and only resulted in a few minor editorial changes to the design documents. Based upon GE's re review of all ten associated design documents, and the minor nature of the corrections, the Staff be-lieves that the GE design and the design process are adequate and that this issue is reduced to an insigni6eant concern regarding the failure by GE to follow its in house procedures. The Staff concludes that the cor-rective action taken by PECo is acceptable and the Staff has no further concerns in this area.
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Petitioners further argue that the Torrey Pmes study brought to light other serious Daws in the Limerick facility, specifically in the facility's i
safe shutdown capability following postulated breaks in the core spray l
line. Petitioners claim that the study found errors afTecting the Automat-i ic Depressurization System (ADS), specifically (a) taking credit for instruments which could also be lost as a consequence of a line break; (b) taking credit for instruments which were not identified on the instru-3 j
ment list and were not in the plant design; and (c) not assuming the
-worst-case single active failure with the line break. Petitioners argue that i
other errors apply to the Reactor Protection System (RPS) and the Pri-
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mary Containment and Reactor Vessel isolation Control System (PCR-VICS). Petitioners argue that the Torrey Pines study did not assess the jl impact of these errors beyond their efTect on the Core Spray System and that because of the repetitive nature of the errors, other errors of a simi-r lar nature might be present 'in the Limerick facility design. Petitioners j
further argue that corrective action proposed by the Licensee, specifically safety evaluation calculations associated with jet impingement, does not address the concern identified. What is required, Petitioners argue, is a complete resiew of design and construction of all systems and compo-l nents related to the plant's safe shutdown capability.
[
In this regard, the Staff notes that PFRs 023 and 024, both classified i
j as findings, identified errors and inconsistencies in the analysis that was
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used to demonstrate safe shutdown capalility following postulated 1
breaks in core spray lines. Bechtel Power CorNration (BPC) agreed that j
there were specific areas in the analysis needing clarification or correc-
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j tion but did not agree that plant safe shutdown capability had not been demonstrated. Nevertheless, PECo proposed to take action to review I
and revise, as necessary, all safety evaluation calculations associated j
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with jet impingement and to provide a description of the methodology of l
the analysis, including a discussion of how worst case single failures are 1
identified. At the meeting in Bethesda on January 10,1985, PECo I
' stated that the corrective action associated with this item had been l
l completed and that no hardware changes were required but that minor I
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j changes in documentation had been incorporated. At the subsequent f
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visit to BPC's offices on January 15,1985, the Staff reviewed BPC's cal.
i culations. As a result ofits review, the Staff concludes that the corrective action in this area is acceptable.
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Ccaments ofM.I. Lewis As noted in the introduction to this Decision, I indicated to Mr. Lewis that I would consider his comments of February 15, 1985, in reaching t
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my decision with respect to the Petition. Nir. Lewis' comments are es-sentially argument regarding the propriety of the continueu operation of the Limerick facility. Specine factual concerns are generally absent. In the absence of the specific factual basis called for by the regulations,o my inquiry must necessarily be limited. Afy responsibility is to conduct an inquiry appropriate to the facts asserted. And in the absence of a speciGe factual basis, my inquiry is a limited one.
Str. Lewis alleges that the Limerick facility stands on concrete that is so porous that a man could sit in some of the voids. No further specifici-ty is provided. In the absence of a more dennite factual basis, I decline to pursue this matter further.
Str. Lewis further alleges that a 13 inch jog is present in one of the Limerick cooling towers. ' Although somewhat speciGe, I decline to pursue this matter as the Limerick facility cooling towers are not safety-related structures and any de0ciencies in them would therefore not affect public health and safety.
Afr. Lewis further alleges that labor unrest on the Limerick site has lead to allegations by subcontractors of alcohol consumption on site, poor welding, security violations and many other safety-related deficien.
cies. Violations and "open item" evaluations have followed some, but not all, of the allegations. Again, these claims by Afr. Lewis are unspecif-ic in nature and do not form the basis for any further factual inquiry. To the extent that Mr. Lewis suggests that violations have been identi6ed in these areas by the NRC and "open items" have been noted, this i
would indicate that the NRC inspection program has pursued specific
'g allegations received in these areas to determine their significance to regulatory requirements. It is the NRC's policy to pursue all specine alle.
gations with potential safety signincance, flowever, the vague and un.
specified claims made by Afr. Lewis in these areas do not warrant any further inquiry on my part.
Afr. Lewis' claims with respect to weld deGeiencies are likewise vague and unspeciGed and thus unsuitable for further inquiry. I woi;ld note, however, that this concern of hir. Lewis was the subject of inquiry by the Atomic Safety and Licensing floard reviewing the operating license for the Limerick facility." The Commission has most recently noted that the principle is now Grmly established that the remedy afforded by M Src dmussum as pp.1)).$4, were.
O L8P 84-31,20 NRC 446, M et seg (1984L I70
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( 2.206 should not be used as a means to reopen issues previously adju-dicated. On this basis, I decline to consider the issue further.
The remaming concerns raised by hir. Lewis, i.e., NRC Staff bias and loyalty to the Licensee, NRC " nitpicking, and the claim that the operat-ing history of the Limerick facility mimics that of the Three hiile Island, Unit 2 facility are fundamentally argumentatise, devoid of any specific factual basis, and so do not warrant further inquiry.
Ccmments ofF.R. Romano As noted in the introduction to this Decision, I informed hir. Frank R. Romano that I would consider his comments dated Alarch II,1985, in reaching my decision with respect to the Petition.
hir. Romano's comments, in part, are generally supportise of the con-cerns raised by Petitioners, particularly with the respect to the issue of LERs. hir. Romano provides no additional specilic information in addi-tion to that provided m the Petition on this issue. As noted in this deci-sion at pp.165-67, supra. the NRC's assessment of the LERs submitted by the Licensee with respect to the operation of the Limerick facility to date does noi warrant the initution of enforcement proceedings.
hir. Romano raises essentially two other issues in his Alarch 11,1985 letter. Both of these issues have already received consideration by the Atomic Safety and Licensing Boards convened to consider the operating j
hcense application for the Limerick facihty.
Atr. Romano discusses his concerns with respect to welding and notes that he had framed his concerns as proposed contentions to the At6mic i
Safety and Licensing Board sitting in the Limerick operating license pro-cceding. Str. Romano has therefore had his opportunity to have the agency consider this matter."
The other concern raised by hir. Romano, namely the sheltering option with respect to emergency preparedness at the Limerick facility, has also been the subject of adjudication. The Atomic Safety and Licens-ing Board sitting in the operating license proceeding has considered 6
14CLl-83-4, wtwa note $ % hile the commemon recognized that this prirktrie m lhe past has been ap-plied to presem swers to a prmeeding from scehms reconuderaimn of mues pressousi) deuded, the commswon in its deosion entended th.s rrmople to those not pernes to a prMecdsng m the mierest rif for.ality to admmistraute deationrnaamg The prirnele thus becomes theiber or not se nwr offered for ronuderatuin under 4 2 206 has been pressously adesJwated in a commimon prmeeding if so, and m the abstfwe of any ogmf want nem mformation, neither a perty nor nonpany map tant thn mut for conuderanon by an offne Direuer purwant to 4 2 20e>
I$ ser noies !J & 14. suive 171
issues related to emergency planning and has rendered a decision with respect to them.'*
With respect to both of these matters, i.e., welding and sheltering,.
Afr. Romano simply seeks to relitigate issues already decided by adju-dicatory boards sitting in the Limerick operating license proceeding. As noted above, the Commission has expressly barred the use of y 2.206 procedures to relatigate issues previously adjudicated in this instance, Afr. Romano was a party to the proceedings wherein these issues were considered. llecause the Petitioners have had an opportunity to receise agency consideration of these questions, I dechne to further pursue either of these issues.
CONCLUSION For the reasons discussed abose none of the issues identified by Peli-'
tioners in their filings or in the comments of Afr. Lewis and Alr.
Romano ~ warrant the initiation of enforcement proceedings. Accordingly, Petitioners' request for action pursuant to s 2.206 is denied. As prosided m 10 C.F.R. ( 2.206(c), a copy of this Decision will be filed with the Secretary for tL<. Commission's review.
flarold R. Denton, Director Office of Nuclear Reactor Regulation Dated at flethesda, Af aryland, this 29th day of July 1985.
(The enclosures have been omitted from this publication but may be found in the NRC Public Document Room, 171711 Street, NW, Wash-ington, DC 20555.]
- BP-8$ 14, 21 NRC 1219 (19456 shelterms issues are veorwaily addrewd at 21 NR(* U01-03, 172
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Cite as 22 NRC 173 0985)
DPRM-85-3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladmo, Chairman Thomas M. Roberts Frederick M. Bernthat i
James K. Asselstine Lando W. Zech, Jr.
In the Matter of Docket No. PRM 50-35 a
JOHN L NANTZ July 26,1985 i
The Nuclear Regulatory Commission denies a petition for rulemaking i
submitted by John L Nantz. The Petitioner requested that the Commis-
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sion adopt regulations to estabhsh a formal procedure for Commission t
review of decisions to close advisory committee meetings or portions of those meetings. The petition is being denied on the grounds that current procedures are adequate to assure that advisory committees' use of ex-
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i emptions from the requirement for open meetings are adequately justi-ficd and because Commission review would be an inefficient and unwar-ranted use of the Commission's resources.
' ADVISORY COMMITTEES: MEETING CLOSURES f
The Commission concludes that current procedures for rulings on clo-(
sure determinations for advisory committee meetings are adequate.
ATOMIC ENERGY ACT: DELEGATION OF AUTilORITY in the absence of any statutory prohibition, the Commission concludes that its delegation of authority to rule on closure determinations for ad-visory committee meetings is a proper exercise of its authoury pursuant i
to l 161n of the Atomic Energy A' t of 1954, as amended.
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NRC: COMMISSION POLICY Establishment of a formal procedure for Commission resiew of adviso-ry committee closures would dnerge from a strong policy of the Com-mission to extricate itself from nonessential procedural matters to con-serve its resources for paramount responsibihties.
DENIAL OF PETITION FOR RULE 31AKING On October 26,1984, the Commission published notice of receipt of a petition for rulemaking from John L. Nantz in which he requested that the Commission amend its regulations to establish a formal procedure to allow interested persons to petition the Commission for review of deci-sions to close advisory committee meetings or portions of those meet-ings (49 Fed. Reg. 43,070). That notice fully exphcated the Petitioner's view on why a change was desirable and set forth the rule change that the Petitioner had proposed.
In brief, the Petitioner maintains that current Commission rules do not establish authority for ruling on appeals of closure determinations for meetings of advisory committees made, pursuant to the Commis-sion's delegation and with the advice of the General Counsel,' by the Assistant Secretary as the Advisory Committee Management OfPicer.
The Commission sought public comment on the petition during a 2 month period.
The Commission received four comment letters on this proposal.
Three commenters supported the petition in light of broad principles favoring open meetings and public participation; however, none of the three addressed specifically the appeal process proposed by the Petitioner or any problems related pecifically to any unwarranted closing of adviso-ry committee meetings.
The remaining commenter, Yankee Atomic Electne Co., asserted that under current practice there are adequate procedures to assure that ad-visory committecs' use of exemptions from the requirement.for open meetings are adequately justified. In particular, this commenter referred I the pelihon also suggests that such a delegauon may be emproper reammns that because 4 ilthi of the Federal Adusory Committee Ast (F ACA) permeis delepauon o(certam speoric f unstions to the Ad-msory Committee Management otraer i ACMo) it is empbed that other runcteons may not be dciegat-ed. but the requerement or that sectmn that the head or an agerny 'designaie." not " delegate." an ACMo to perform certain (urnoons does not speak so. let alone answer. the ques.mn whether the runc-tion or deodmg mecung closmgs may be deiegated by the agency head to another in the absente orany prohibiuon the Commissmn corwfudes that its Oclegaima is a proper esercne orits authomy pursuant to 4 sein or ihe Atomic 1.nergy Act or 1954, as amended I74
to the Federal Advisory Committee Act's requirement that any determi-nation to close an advisory committee meeting "shall be in writing and shall contain the reasons for such determination.15 U.S.C., Appendix 1 s 10(d)L" The commenter properly deduced that the written basis for closing must be suf0cient for a reviewing court to determine whether t
the meeting was properly closed. See, e.g., % der r. Dunlop,370 F. Supp.
177 (D.D.C.1973). In sum, the commenter concluded that "it is not ap-parent that the Petitioner's recommended procedures are a necessary or preferred substitute for proper enforcement of current provisions in the A ct."
The Commission ageces with Yankee Atomic Electric Co. that the cur-rent procedures are adequate for the reasons stated. Aforeover, the prac-tice whereby the Advisory Committee Af anagement Of0cer reconsiders his own decisions on appeal parallels the procedure for appeal of closure of Commission meetings where it is the Commission itself that reconsid-ers its earlier decision. In addition, the Commission notes that the proce-
- dure Alr. Nantz supports would be impractical and would diverge from a
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strong policy of the Commission to extricate itself from nonessential pro-r cedural matters in order to conserse its resources for health and safety
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matters and matters of common defense and security which are its para-mount responsibilities.
1he Petitioner argued that because the Commission makes the ulti-mate decision with respect to its own meeting closure, it should be the l
Anal level of review for advisory committee closures as well. This ignores j
the practical distinction that for 'ts own meetings the Commission is al-j ready thoroughly cognizant of what is expected to be discussed and the l
analysis underlymg closure. In order to rule on advisory committee clo-sures, the Commission would have to be thoroughly briefed on the specinc purpose of the particular meeting in question, what discussion was anticipated and what analysis supported the closure decision. In the Commission's view, the expenditure of its resources on this undertaking would be unwarranted. Absent any contrary statutory provision, the Commission belieses that any r ecessary review would more reasonably j.
be undertaken by its delegate, the Assistant Secretary, with the advice g
of the General Counsel. The Commission notes that the Assistant Secre-I tary in his capacity as Advisory Committee blanagement Of0cer, would I
be informed already of the anticipated meeting content and could more h
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1 emeiently and more expeditiously conduct any review or reconsidera-tion. Accordingly, the Commission determines that rulemaking is nei-ther necessary nor desirable at this time and demes the petition.
For the Nuclear Regulatory Commission Samuel J. Chilk Secretary of the Commission Dated at Washington, D.C.,
this 26th day of July 1985.
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