ML20137Z136
| ML20137Z136 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 12/06/1985 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-435 OL, NUDOCS 8512110229 | |
| Download: ML20137Z136 (79) | |
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UNITED STATES OF AMERICA Ah NUCLEAR REGULATORY COMMISSION ' o. ' '.D f,p
, BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD -
, In the Matter of )
) .
CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-440 OL COMPANY, ET AL, ) 50-441 OL
)
(Perry Nuclear Power Plant, )
Units I and 2) )
NRC STAFF RESPONSE TO APPEALS FILED BY OHIO CITIZENS FOR RESPONSIBLE ENERGY AND BY SUNFLOWER ALLIANCE, INC. OF THE CONCLUDING PARTIAL INITIAL DECISION ON ISSUES #1, *8 AND #16 AND SIX PRIOR DECISIONS Colleen P. Woodhead Counsel for NRC Staff December 6, 1985 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION ">- @g'S
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. BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 1
. In the Matter of )
)
CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-440 OL
(Perry Nuclear Power Plant, ) i Units 1 and 2) )
NRC STAFF RESPONSE TO APPEALS FILED BY OHIO CITIZENS FOR RESPONSIBLE ENERGY AND BY SUNFLOWER ALLIANCE, INC. OF THE CONCLUDING PARTIAL INITIAL ,
DECISION ON ISSUES #1, #8 AND #16 AND SIX PRIOR DECISIONS i
l 0 L
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l 4 Colleen P. Woodhead Counsel for NRC Staff December 6, 1985 f
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TABLE OF CONTENTS Page I. INTPODUCTION . . . . . . . . . . . . . . . . . . . . . . . 1
. II. STATEMENT OF THE CASE .................. 2 III. STATEFENT OF ISSUES ON APPEAL .............. 5 IV. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. THE APPEAL BY OCRE ................. 7
- 1. THE HYDROGEN CONTROL ISSUE . . . . . . . . . . . 7
- a. THE LICENSING BOARD PROPERLY DEFINED THE SCOPE OF THE PRELIMINARY AFALYSIS REQUIRED BY THE HYDROGEN CONTROL RULE, 10 CFP $50.44(c)(3)(vii)(B) . . . . . . . . 7
- b. THE BOARD APPLIED THE PROPER STANDARD FOR DETERMINING COMPLIANCE WITH THE HYDROGEN CONTROL RULE, 10 CFR 550.44(c)(3)(iv)-(vii) .......... 12
- c. THE LICENSING BOARD PROPERLY DELEGATED INCIDENTAL MATTERS CONCERNING HYDROGEN CONTROL TO NRC STAFF FOR POST-HEARING RESOLUTION ................ 15
- d. THE PARTIAL INITIAL DECISION IS BASED ON PELIABLE EVIDENCE ........ 20
- e. THE PARTIAL INITIAL DECISION IS FOUNDED ON THE WEIGHT OF THE EVIDENCE ................. 28
- f. THE BOARD PLACED THE BURDEN OF PROOF ON THE APPLICANTS FOR ISSUE 8 . . . . . . . . . . . . . . . . . . 37
- 2. THE TDI DIESEL GENERATOP ISSUE . . . . . . . . . 40
- a. THE LICENSING BOARD DECISION REGARD-ING THE TDI DIESEL ISSUE IS BASED ON PELIABLE AND COMPLETE EVIDENCE ...... 40 1
-...a , - - - - --- - . = _. . - . ,
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l b. THE BOARD PROPERLY DELEGATED !
- S0PE MATTERS CONCERNING THE ,
. TDI DIESELS TO NRC STAFF . . . . . . . . . 43
- c. THE BOARD PLACED THE BURDEN OF
. PROOF ON THE APPLICANTS CONCERN-ING ISSUE 16 ............... 46 j 3. OTHER LICENSING BOARD RULINGS . . . . . . . . . 48
- a. THE BOARD CORRECTLY DENIED OCRE'S l MOTION TO REOPEN THE RECORD FOR
! RECEIPT OF EVIDENCE CONCERNING 4
THE TDI DIFSELS . . . . . . . . . . . . . . 48
- b. THE BOARD 00iiRECTLY INTERPRETED
, 10 CFR 550.62 AND PROPERLY DIS-i MISSED ISSUE 6 .............. 49
- c. THE LICENSING BOARD CORRECTLY GRANTED
SUMMARY
DISPOSITION OF ISSUE I3 ................. 52
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- d. THE BOARD CORRECTLY INTERPRETED 10 CFR 950.49 AND PROPERLY GRANTED
SUMMARY
DISPOSITION OF ISSUE 9 ................ 55
.i e. THE BOARD CORRECTLY INTERPRETED 10 GFR 50.12(a) AND PROPERLY ,
j DENIED OCRE'S MOTION TO REOPEN THE RECORD TO ADMIT A NEW CONTENTION ................ 57 t 4
SUMMARY
ON OCRE'S APPEAL . . . . . . . . . . . . 58 B. THE APPEAL BY SUNFLOWER ALLIANCE . . . . . . . . . . . 59
- 1. THE LICENSING BOARD PROPERLY REJECTED
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TWENTY EMERGENCY PLAN CONTENTIONS FOR LITIGATION . . . . . . . . . . . . . . . . . . . 59
- 2. THE LICENSING BOAPD CORRECTLY DECIDED THE EMERGENCY PLAN ISSUES ON THE PRE-PONDERANCE OF THE EVIDENCE . . . . . . . . . . . 62 1
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 68
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TABLE OF AUTHORITIES 1
Page
. NRC PROCEEDINGS Cleveland Electric Illuminating Company et al
. (Perry Nuclear Power Plant, Units 1 & 27, ALAB-802, 21 NRC 490 (1985) . . . . . . . . . . . . . . . 48 ALAB-443, 6 NRC 741 (1977). . . . . . . . . . . . . . . . 45 LBP-81-24, 14 NRC 175 (1981). . . . . . . . . . . . . . . 59 LBP-81-35, 14 NRC 682 (1981). . . . . . . . . . . . . . . 59 LBP-83-46, 18 NRC 218 (1983). . . . . . . . . . . . . . . 3,52,53 LBP-83-18, 17 NRC 501 (1983). . . . . . . . . . . . . . . 3,55,56 LBP-84-28, 20 NRC 129 (1984). . . . . . . . . . . . . . . 59,61 ,
LBP-84-40, 20 NRC 1181 (1984) . . . . . . . . . . . . . . 3,49,50,51 Menorandum and Order, January 10, 1985 (unpublished). . . 3,59,60 Memorandum and Order, May 28, 1985 (unpublished). . . . . 3,48,49 LBP-85-33, 22 NRC 442 (1985). . . . . . . . . . . . . . . 4,57 LBP-85-35, 22 NRC 514 (1985). . . . . . . . . . . . . . . 59 Consumers Pcwer Company (Midland Plant, Units 1 and 2),
ALAB-123, 6 AEC 331 (1973). . . . . . . . . . . . . . . . 38 ALAB-270, 1 NRC 473 (1975). . . . . . . . . . . . . . . . 61
- Duke Power Company, et al . (Catawba Nuclear Station, Units 1 & 2),
ALAB-355, 4 NRC 397 (1976). . . . . . . . . . . . . . . . 61 ALAB-687, 16 NRC 460 (1982) . . . . . . . . . . . . . . . 51 Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453 (1982) . . . . . . . 23 GPU Nuclear Corporation (Three Mile Island Station, l' nits 1 and 2), (Oyster Creek Nuclear Generating Station), CLI-85-4, 21 NRC 561 (1985) . . . . . . . . . . 15 Long Island Lighting Com)any (Shoreham Nuclear Power-Station, Unit 1), A.AB-788, 20 NRC 1102 (1984). . . . . . 17,44,68 Louisana Power and Light Company (Waterford Steam Electric Station, Unit 3),
ALAB-732, 17 NPC 1076 (1983). . . . . . . . . . . . . . . 23,30,34, 38,47 ALAB-801, 21 NRC 479 (1985) . . . . . . . . . . . . . . . 29 ALAB-803, 21 NRC 575 (1985) . . . . . . . . . . . . . . . 48,49
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Page Metropolitan Edison Company et al (Three Mile Island. Nuclear Station, Unit No. 1),
. ALAB-729 17 NRC 814 (1983) . . . . . . . . . . . . . . . . 13,14,15,19 Metropolitan Edison Company (Three Mile Island Nuclear
. Station, Unit No. 2), ALAB-486, 8 NRC 9 (1978) . . . . . . 14 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
CLI-81-5, 13 NRC 361 (1981). . . . . . . . . . . . . . . . 48,49,58 ALAB-254, 8 AEC 1184 (1975). . . . . . . . . . . . . . . . 47 ALAB-580, 11 NRC 227 (1980). . . . . . . . . . . . . . . . 20 ALAB-598, 11 NRC 876 (1980). . . . . . . . . . . . . . . . 48,49 ALAB-728, 17 NRC 777 (1983). . . . . . . . . . . . . . . . 30,48,49 ALAB-811, 21 NRC 1622 (1985) . . . . . . . . . . . . . . . 51 Petition for Shutdown of Certain Reactors, CLI-73-31, 6 AEC 1069 (1973). . . . . . . . . . . . . . . . . . . . . 14 Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) ALAB-809, 21 NRC 1605 (1985) . . . 58 Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974) . . . . 61 Public Service Electric and Gas Company (Hope Creek Generating Station, Units 1 and 2)
ALAB-429, 6 NRC 229, (1977). . . . . . . . . . . . . . . . 36 ALAB-518, 9 NRC 14 (1979). . . . . . . . . . . . . . . . . 29,30 Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43 (1981), aff'd sub nom Township of Lower Alloways Creek v. Public Service Electric and Gas Company, 687 F. 2d 732 (3d Ci r. 1982) . . . . . . . . . . . . . . . 60 Public Service Company of New Hampshire et al (Seabrook Station, Units 1 and 2),
ALAB-422, 6 NRC 33 (1977) ............... 47 LBP-74-36, 7 AEC 877 (1974). . . . . . . . . . . . . . . . 45 >
Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),
ALAB-673, 15 NRC 688, affd, CLI-82-11, 15 NRC 1383 (1982). 30 CLI-83-10, 17 NRC 528 TT933) . . . . . . . . . . . . . . . 64
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Page Union Electric Com3any (Callaway Plant, Unit 1),
ALAB-750, 18 1RC 1205 (1983). . . . . . . . . . . . . . . 17,19 Viroinia Electric and Power Company (North Anna-Nuclear Power Station, Units 1 and 2), ALAB-555, 10 NPC 23 (1979). . . . . . . . . . . . . . . . . . . . . 20,27,28 Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335 (1983). . . . . . . . . . . . . . . . . . . . . . . . 60 CCURT DECISIONS Citizens for Safe Power v. NRC, 524 F. 2d 1291, 1297 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . 13 GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985) . . . . . . . . . 64,65 Nader v. NRC, 513 F.2d 1045 (D.C. Cir.1975) . . . . . . . . . 13 Nader v. Ray, 363 F. Supp. 946 (D. D. C. 1973) . . . . . . . . 14 Union of Concerned Scientists v. NRC, 735 F.2d 1437
( D. C . C i r. 1984 ) . . . . . . . . . . . . . . . . . . . . . 8,12,43,44 NRC REGULATIONS 1
j 10 CFR 92.206 ........................ 15,17 10 CFR 62.714(b) . . . . . . . . . . . . . . . . . . . . . . . 61 10 CFR $2.749(a) . . . . . . . . . . . . . . . . . . . . . . . 52,54 10 CFR 52.749(c) . . . . . . . .'. . . . . . . . . . . . . . . 52,54 10 CFR 5 2.749(d) ...................... 54 10 CFR 92.762(a) . . . . . . . . . . . . . . . . . . . . . . . 60 10 CFR [2.762(d) . . . . . . ... . . . . . . . . . . . . . . . 62 10 CFR 92.762(d)(1) ..................... 60 10 CFR 62.758 ........................ 57 10 CFR 950.12(a) . . . . . . . . . . . . . . . . . . . . . . . 4,6,57 i
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10 CFR 550.44 ........................ 2,7
- 10 CFR 50.44(c)!3((iv)(A), (B) . . . . . . . . . . . . . . . . 2,22 lI
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i 10 CFP $50.44(c)(3)(iv)(B)(1) ................ 39 10CFR550.44(c)(3)(v)(A) .................. 2 j 10 CFR 550.44(c)(3)(vi)(A) and (B) . . . . . . . . . . . . . . 7 10CFR$50.44(c)(3)(vii)(B) ................. 5,7,8,11, 21,23,26 10 CFR $50.44(c)(3)(iv)-(vii) ................ 2.5,15,40
- 10 CFR $50.47(b)(12) . . . . . . . . . . . . . . . . . . . . . 64,65 s
j 10 CFR $50.49 ........................ 4,6,18, .
' 19,55,56 10 CFR $50.57(a)(2) ..................... 8,11
!, 10 CFR $50.62 ........................ 4,6,49-51 [
10 CFR Part 50, Appendix F, Criterion 17 . . . . . . . . . . . 2 10 CFR Part 50, Appendix B, Criterion I ........... 43 l 10 CFR Part 50, Appendix J . . . . . . . . . . . . . . . . . . 4,57,58 t
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4 d(p-UNITED STATES OF AMERICA b '-
NUCLEAR REGULATORY COMMISSION 4'O sp 9
(kl s P BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD jf.3 gD
. ~4m ,
In the Matter of )
CLEVELAND ELECTRIC ILLUMINATING Docket No. 50-440 OL C0FPANY, ET AL. ) 50-441 OL
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
NRCSTAFFRESPONSETOAPPEALSFILEDBYOHIE CITIZENS FOR RESPONSIBLE ENERGY AND BY SUNFLOWER ALLIANCE INC. OF THE CONCLUDING PARTIAL INITIAL DECISION ON ISSUES #1, #8 AND #16 AND SIX PRIOR DECISIONS I. INTRODUCTION Ouring April 9-12 and April 30-May 3,1985, evidentiary hearings were held in this proceeding before the Atomic Safety and Licensing Board (LicensingBoard)toaddressthreecontentionsII sponsored by intervenors, Sunflower Alliance, Inc. (Sunflower) and Ohio Citizens for Responsible Energy (OCRE). A concluding partial initial decision (PID) was issued September 4,1985. OCRE and Sunflower timely filed notices of appeal with respect to this decision and other Licensing Board rulings followed by briefs on appeal filed October 21 (OCRE Brief) and 29 (Sunflower Brief),
1985. The NRC Staff hereby files its response to the appeals of Sunflower and OCRE.
1/ Sunflower sponsored Issue #1 which alleged emergency planning deficiencies. OCRE sponsored Issues #8 and #16 which alleged inadequate hydrogen control and unreliable diesel generators, respectively.
4 II. STATEMENT OF THE CASE Issue #8 submitted by OCRE, challenged the sufficiency of the hydrogen control system to be installed at the Perry Nuclear Power Plant (PNPP) to I . accommodate large amounts of hydrogen, which might be produced as a result l
i of a degraded ccre accident, so as to prevent rupture of containment and l f
! release of fission products. The contention essentially challenges the 1
Applicants' compliance with 10 CFR 6 50.44(c)(3)(iv)-(vii). 2/ This regula-j' tion requires applicants for operating licenses for boiling water reactors J
i with Park III containments like that at PNPP, to provide the plant with a hydrogen control system capable of handling the hydrogen. produced by a 75% i i
metal-water reaction in a degraded core without loss of containment l
integrity or essential equipment. 3/ Issue #8, concerning compliance with this regulation, was litigated at hearing held April 30 to May 3, 1985.
Issue #16, also submitted by OCRE, challenges the reliability of the Transamerica Delaval, Inc. (TDI) diesel engines at PNPP to supply emergency f
I onsite power in accord with 10 CFR Part 50, Appendix A, Criterion 17. Issue
} #16 was litigated during hearings held April 9-10, 1985. This issue essentially asserts the TDI diesels at PNPP are not reliable due to the !
4 defects discovered in 1983 in the diesels manufactured by TOI at the Shoreham Nuclear plant which occasioned an intensive investigation by NRC 2/ This amendment to 10 CFR 6 50.44 was issued on January 25,1985,(50 Fed. M . 3498).
3/ IV CFR 6 50.44(c)(3)(iv)(A), (8) and (c)(3)(v)(A).
i Staff and formation of the "TDI Owners Group" for revalidation of all TDI dieselenginesatnuclearplants.SI l l Issue f1 concerning the general adequacy of emergency planning for >
PNPP, submitted by Sunflower, was particularized by Sunflower into discrete
. subissues concerning specified deficiencies in emergency planning. Nine of -
! these subissues were admitted for litigation and were the subjects of 1
! hearing April 11-12, 1985. I
- The Licensing Board PID, ruling favorably for Applicants on Issues 8, i
16 and those concerning emergency planning encompassed by Issue 1, was !
l issued September 4, 1985. OCRE and Sunflower appeal this decision. '
Sunflower also appeals the Licensing Board's Order E/ which rejected 20 j l'
emergency plar. subissues for litigation. OCRE similarly appeals five prior f decisions by the Licensing Board which (1) denied OCRE's motion to reopen :
) the record for receipt of information concerning the TDI diesels at Grand
.f Gulf Nuclear Station (GGNS), 5I (2) dismissed Issue 6, concerning "ATWS" j mitigation 1/ (3) granted summary disposition of Issue 13 concerning turbine !
missile hazards EI (4) granted suninary disposition of Issue 9 concerning [
! polymerdegradation,EI and (5) denied OCRE's motion to reopen the record to !
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1 l 4/ See: Board Notification 84-152 (Staff Exhibit 1, Tr. ff. 2284).
a
}/ Memorandum and Order dated January 10, 1985, unpublished.
p/ Memorandum and Order, May 28, 1985, unpublished. i 3
Z/ LBP-84-40, 20 NRC 1181 (1984).
i l< g/ LBP-83-46, 18 NRC 218 (1983).
9_/ LBP-83-18,17NRC501(1983).
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l admit a new contention challenging a proposed exemption from one part of 10 CFR Part 50, Appendix J. E OCRE's. appeal concerning the hydrogen control contention raises six issues. These issues concern (1) the proper scope of the preliminary
, analysis required by the hydrogen control rule, OCRE Brief at 2-11 (2) the i
proper standard for determining compliance with the hydrogen control rule,
- OCRE Brief at 11-12 (3) delegation of allegedly contested issues to NRC Staff for post hearing resolutions, OCRE Brief at 12 (4) the evidentiary
! bases for the Licensing Board's decision, OCRE Brief at 13-16, (5) the i weight of the evidence, OCRE Brief at 16-23, and (6) the burden of proof.
OCRE Brief at 23-25. The issues raised by OCRE challenging the Licensing
- Board's decision on the TDI diesel generators at PNPP concern (1) the evidentiary basis for the decision, OCRE Brief at 26-30, (2) delegation of i an allegedly contested issue to NRC Staff OCRE Brief at 29 and (3) a l claimed improper shifting of the burden of proof. OCRE Brief at 30-31. The issues raised by OCRE concerning prior decisions of the Licensing Board ,
involve (1) the Licensipg Board's standard for considering reopening the record in its May 28, 1985 Memorandum and Order, OCRE Brief at 31-33, (2) the interpretation of 10 CFR $ 50.62 contained in the decision dismissing f
j the "ATWS" Issue 6, OCRE Brief at 33-39, (3) the legal and factual bases of the decision granting sumary disposition of the " Turbine Missile" Issue 13, 1 ,
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OCRE Brief at 39-47, (4) the interpretation of 10 CFR 9 50.49 in the j decision granting sumary disposition of the " Polymer Degradation" Issue 9 !
OCRE Brief at 47-53 and (5) the interpretation of 10 CFR 9 50.12(a) in the 10/ LBP-85-33, 22 NRC 442 (1985).
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l Licensing Board's decision denying OCRE's motion to reopen the record to admit a new contention. OCRE Brief at 53-57.
Sunflower raises two major issues regarding the Licensing Board's decisions on Emergency Plan contentions. Those appeal issues involve
- (1) the procedural basis for the Licensing Board's rejection of twenty emergency plan contentions Sunflower Brief at 1-14 and (2) the evidentiary i
bases for the Licensing Board's decisions on the emergency plan issues in l the PID. The appeals filed by OCRE and Sunflower ask reversal of the seven Licensing Board decisions referred to above.
III. STATEMENT OF ISSUES ON APPEAL The issues presented in OCRE's appeal are:
- 1. The Hydrogen Control Issue
, (a) Whether the Licensing Board correctly defined the scope i of the preliminary analysis of the PNPP hydrogen control i system required by 10 CFR l 50.44(c)(3)(vii)(B).
- (b) Whether the Licensing Board applied the correct standard
! for determining compliance with the portion of the hydrogen control rule in 10 CFR l 50.44(c)(3)(iv)-(vii).
(c) Whether the Licensing Board properly delegated matters concerning compliance with the hydrogen control rule to
! NPC Staff.
4 (d) Whether the Licensing Board decision regarding the hydrogen control issue is based on reliable evidence.
, (e) Whether the Partial Initial Decision is based on the weight of the evidence.
I (f) Whether the Licensino Board placed the burden of proof on the Applicants for Issue 8. !
- 2. The TDI Diesel Generator Issue i
(a) Whether the Licensing Board decided the TDI diesel issue
, on reliable and complete evidence.
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$ (b) Whether the Licensing Board properly delegated matters
! concerning TDI diesels to NRC Staff for resolution.
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(c) Whether the Licensing Board placed the burden of proof j on the Applicants for Issue 16.
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- 3. Other Licensing Board Rulings
. (a) Whether the Licensing Board correctly denied a motion to reopen the record concerning the TDI diesel issue.
- (b) Whether the Licensing Board correctly interpreted 10 CFR
. 9 50.62 in its decision dismissing Issue 6.
i (c) Whether the Licensing Board correctly granted summary
- disposition of Issue 13.
(d) Whether the Licensing Board correctly interpreted 10 CFR 5 50.49 in its decision granting summary disposition of Issue 9.
(e) Whether the Licensing Board correctly interpreted 10 CFR 5 50.12(a) in its order denying OCRE's motion to l
reopen the record to admit a new contention.
The issues raised in Sunflower's appeal on emergency planning
! are:
i (1) Whether the Licensing Board properly rejected 20 emergency plan contentions for litigation.
l I (2) Whether the Licensing Board decided the emergency plan 1
issues on reljable, probative, and substantial evidence.
The NRC Staff's views on these issues are set forth below.
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IV. ARGUMENT A. THE APPEAL BY OCRE
. 1. The Hydrogen Control Issue EI
. a. The Licensing Board Properly Defined The Scope Of The Preliminary Analysis Required By The Hydrogen Control Rule, 10 CFR % 50.44(c)(3)(vii)(B)
The January,1985 amendtrent to 10 CFR $ 50.44 requires submission of an analysis to evaluate consequences of large amounts of hydrogen generated by accident scenarios, which supports the design of the hydrogen control system selected. El The regulation dces not require a completed final analysis, pro-vided there is submitted a preliminary analysis sufficient to support interim operation pending completion of the final analysis. EI OCRE challenges the Board's ruling on the sufficiency of the preliminary analysis.
OCRE asserts that the Board erred by failing to rule on the proper scope of the preliminary analysis required by the hydrogen control rule so that a finding of compliance with the regula{ ion could not be detennined as M/ Issue 8 stated:
The Perry hydrogen control system is inadequate to assure that large amounts of hydrogen can be safely accommodated without a rupture of the containment and a release of substantial quantities of radioactivity to the environment.
H/ 10 CFR $ 50.44(c)(3)(vi)(A) and (B). A distributed system of igniters has been installed at PNPP to burn the hydrogen which may be produced from a degraded core accident. PID at 27.
13/ 10 CFR $ 50.44(c)(3)(vii)(B). The final analysis will be sutaitted when the tests being performed by the Hydrogen Control Owners Group (HCOG) are completed. PID at 48, 107, Finding 149.
required by 10 CFR $ 50.57(a)(2). Brief at 3. El OCRE also claims that.
1 since the Board is authorized only to determine issues relating to full power licen. sing, the Board's failure to consider some issues to be contained ,
in the final analysis required by the hydrogen control rule, constitutes i
- , " interim licensing." Brief at 6-10. In connection with this proposition OCRE asserts that licensing boards are required to address all issues raised by intervenors, and therefore, the Board should have required full resolu-tion of the matters OCRE believed were encompassed by the preliminary l analysis. Brief at 11. E l In support of this claim, OCRE cites its Proposed Findings of Fact and Conclusions of Law at 50-53 (which OCRE believes to establish the proper scope of the preliminary analysis), OCRE's Exhibit 19, and Tr. 3740-46. Brief at 11. El i
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-14/ In relation to the first allegation of error, OCRE asserts the Board j used an illegal and subjective " reasonable assurance of safety in the
, interim" standard in the PID at 25-26, 33, 46. Brief at 3. OCRE I
further asserts that the Board erred in the PID at 24, by deferring to the Staff's review of the preliminary analysis contrary to the require-i ments of Sections 189 and 191 of the Atomic Energy Act. Brief at 4-6.
15/ OCRE rests this claim on Union of Concerned Scientists v. NRC, 735 F.2d i
1437 (D.C. Cir.1984), where the Court overturned a Comission rule d excluding emergency plan exercise issues from hearings.
j 16/ The references provided by DCRE to support its assertions do not, in fact, do so. OCRE's Exhibit 19 is merely a 1982 request for informa-l .
tion from NRC Staff (See: Tr. ff. 3683) whereas Tr. 3740-46 consists !
! of OCRE's cross-examination of a Staff witness concerning the SER for the Grand Gulf Nuclear Station. Nor does the PID support OCRE's asser-3 tion that the Board acouiesced in the Staff's evaluation of the hydro-
- gen control system. The Licensing Board merely recited the contents i of the rule which states that a license may be granted on the basis of
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i a satisfactory preliminary analysis of the hydrogen control system approved by the Staff. PID at 24 See: 10 CFR 9 50.44(c)(3)(vii)(B).
Moreover, at the outset of the hearing the Board made clear that it did not consider an acceptance by the Staff of the preliminary analysis i i to be binding on the Board. )
(FOOTNOTE CONTINUED ON NEXT PAGE) !
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9 OCRE essentially takes issue with the Board's rejection of OCRE's view l l of the subjects necessary for the preliminary analysis. At hearing, the j Board allowed OCRE " broad latitude" for cross-examination since the amended l
- j. hydrogen ~ control rule does not explicitly define the distinction between the l
. preliminary and final analyses required. E PID at 24-25. However, the Board concluded that several matters explored by OCRE were not reasonably !
l necessary for the preliminary analysis. PID at 55.
- Even a brief examination of the Partial Initial Decision indicates that '
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! OCRE has mischaracterized the contents of the decision below. The Licensing (
i Beard took great care to explain the prudent development of its ruling on [
j the scope of the preliminary analysis. The Board stated: [
t The new hydrogen rule is unclear as to the boundaries that L l distinguish a preliminary from a final analysis. It is clear '
1 that the rule permits the issuance of licenses for full power i
) operation on the basis of a satisfactory preliminary analysis.
] Not surprisingly, the parties dispute the scope of a j l
1 t j (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) l I
Tr. 3234-3235. Nor did the Board view Staff acceptance of previous analyses as binding. Tr. 3238-3240. .
i j OCRE has attached to its brief a Staff memorandum containing sugges- '
j tions for clarification of the hydrogen control rule prior to its issuance by the Commission. (Memorandum from Thomas F. Dorian to l Walter H. Butler and Morton Fleischmann, June 29,1983). This docu-l ment is not in evidence, but in any event, does not contradict the j
o position of Staff at hearing. _f.e., that the Staff's approval of the l j Applicants' preliminary analyses is in no way binding upon licensing l -
boards. !
q >
i -17/ OCRE raised questions concerning: (1)containmentventing,(2) ,
} analysis of annulus concrete by APTECH, Inc. (who ;
i defective welds discovered in containment in 1983) performed a study of, (3) compl i of "0-rings" in the equipment hatch, (4) the capability of the vacuum l breakers, (5) voids in the drywell, (6) station blackout (7) ionizing i
radiation (8) containment spray availability, (9) suppression pool
! bypass, (10) diffusion flames, (11) the method of performing tests for ;
1 the final analysis, (12) excessive drywell pool loads, (13) decay heat l l removal capability, (14) secondary fires in containment. See PID at l
28, 32-37, 43-44, 48-51.
i i I
l
satisfactory preliminary analysis. OCRE argues that the
- preliminary analysis must be all but complete before the Board i
can make a finding of reasonable assurance of safety (OCRE '
proposed opinion at 9-14). The Staff and Applicants, on the other hand, believe that a number of open or unresolved items
. can be deferred until the final analysis and have agreed to the secpe of a preliminary evaluation and analysis for Perry (Finding 71). The Board finds no need to resolve the dispute
. in this instance. We find that the Applicants' preliminary analysis as described in the preliminary evaluation report and in App 1fcants' testimony, and as approved by the Staff as discussed in the Staff's testimony, does address in detail the substantive provisions of the hydrogen rule.
PID at 25.
Indeed, contrary to OCRE's claim that the Board failed to rule on the scope of the analysis, the decision discusses at length the parameters of the new hydrogen control rule and states the specific requirements under the rule for the preliminary analysis. PID at 23-24.18/ The Board explained f i
that it did not attempt to define the boundaries of the preliminary analysis '
required by the new rule in advance of the hearing, so the standard of acceptance for the analysis initially established by the Board was a determination of reasonable assurance of safety during plant operation, based on the assessment.of the record actually developed. PID at 25-26.
However, after reviewing the entire record, the Board concluded that the basic questions to be answered at the preliminary analysis stage were 1
18/ In applying the provisions of the rule, the Board stated the Applicants' analysis must (1) evaluate consequences of generation of large amounts of hydrogen, and hydrogen control measures; (2) include the period of recovery from the degraded condition; (3) use accident scenarios accepted by the NRC Staff; (4) support the design of the hydrogen control system selected; and (5) show that (1) containment structural integrity will be maintained; (ii) that systems and components necessary for safe shutdown and containment integrity will be capable of performing their functions during and after exposure to the environmental conditions created by the burning of hydrogen. PID at 24.
i
_ _ . _ _ _ . . . _ , . _ . , _ _ _ . . _ _ _ _ _ _ . . , . _ . , _ _ _ _ . , _ . _ . . _ , . . _ . - _ _ _ _ . . . . - _ _ _ - ~ _ . _ . . _ . ~
(1) whether an igniter system has been installed, (2) whether it will function as designed, (3) whether hydrogen will burn as predicted, (4) and whether the containment and essential equipment will retain their integrity under the pressures and temperatures predicted. PID at 54. Such an
. interpretation of the necessary scope of an adequate preliminary analysis is plainly reasonable.
OCRE's assertion that the Licensing Board engaged in some sort of imprcper " interim licensing" is clearly trwarranted, as is the claim of improperly defining the boundaries of the preliminary analysis to exclude matters OCRE urges for inclusion. The Board properly and in accord with the regulation specified the preliminary analysis necessary for a sufficient demonstration that the hydrogen control system at PNPP can perform the intended function safely. The Board's rulings simply reflected the regula-tion which requires a preliminary analysis which
... provides a satisfactory basis for a decision to support interim operation at full power until the final analysis has been completed.
4 10 CFR 5 50.44(c)(3)(vi4)(B). Thus, the decision based on a preliminary analysis is not " interim licensing" since, for acceptance, the analysis must demonstrate effective and safe operation of the hydrogen control system at full power operation, while awaiting the more complete information to be obtained from the HCOG tests. There is no obstacle to finding that the plant will operate in accord with the Commission's regulations as required by 10 CFR i 50.57(a)(2). OCRE's argument that many other aspects of plant design and operation should have been included in the preliminary analysis is equally unfounded. As previously explained, the analysis required is limited to the hydrogen control system and its effect on plant structures
l 1
l and safe-shutdown systems. OCRE's proposals would broaden the contention to include all safety-related systems.1_9/
The Licensing Board used an abundance of caution in generously allowing cross-examination about subjects not directly related to the hydrogen ,
. control system, the hydrogen control regulation, or the contention. OCRE f was provided substantial freedom to explore issues at hearing only tenuously 1
connected to the contention and has no cause for complaint. There is no j merit to OCRE's allegations concerning the scope of the preliminary analysis determined by the Licensing Board since it is bat,ed not only on the require- l
- ments of the rule but also on a reasonable assurance of safe operation of PNPP. ,
I
- b. The Board Applied the Proper Standard For Determining Corrpliance 1
With The Hydrogen Control Rule I
Closely aligned with OCRE's allegations concerning the proper scope of the preliminary analysis is OCRE's claim that the Licensing Board applied an erroneous standaro in decidino the adequacy of the hydrogen control system at PNPP. OCRE Brief at.11. OCRE claims its " reasonableness" standard described in its proposed findings is the correct one whereas the Licensing l
Board used a " safety in the interim" standard. Ld. According to OCRE, the Board's criterion for decision consisted only of a " mention" of the prelimi- ;
! nary analysis and substantive requirerrents of the hydrogen control rule.
l 1
1 19/ OCRE incorrectly interprets UCS, supra, as requiring consideration of :
all issues raised by intervenors, even those raised for the first time i at hearing, such as OCRE proposed. UCS overturned a Comission rule excluding at the outset issues that are material to licensing. UCS i does not require, as OCRE asserts, consideration of peripheral issues
! not admitted before hearing.
a
-. ,,n-- , - - . - - - - - - - - . , , , , ..--c, . ~ . - -n----.-e-. -,---,-.,,,..,-----.m--, - , , -.m---, m n-c,---amn-
, with deference to the Staff's approval of the analysis without the Board's evaluation of sufficiency. M.
- However, examination of OCRE's definition of the proper standard, contained in OCRE's proposed findings, does not indicate a substantial difference between the Board's " reasonable assurance of safety during operation" standard and OCRE's view of " reasonableness." See
- PID at 26-77. Since the PID addresses not only the adequacy of the hydrogen control system, but also the questions concerning many other subjects raised by OCRE at hearing, OCRE's claim is not clear. E l It appears that OCRE's reasonableness standard is one with the broader scope of analysis urged by OCRE, discussed previously.
On the other hand, it is clear that the Board's standard of " reasonable assurance of safety" for deciding the adequacy of the hydrogen control system was entirely proper. The Appeal Board's comments in Metropolitan i
Edison Company, et al. (Three Mile Island Nuclear Station, Unit No.1),
ALAB-729, 17 NRC 814, 828 (1983) are directly applicable here. There, in ,
response to an assertiop like OCRE's, that no reasonable assurance of safety exists as long as reactor technology continues to develop, the Appeal Board stated:
o As we read the Licensing Board's decisicn, it concluded simply
. that safety should properly be assessed on the basis of whether present systems can assure reasonable protection of
- the public health and safety. Such an approach is generally consonant with the requirements of the Atomic Energy Act, citin Citizens for Safe Power v. NRC, 524 F.2d 1291,1297 TD2 .g,ir.
C 1975); Nader v. NRC, 513 7 2d 1045, 1052-54 (D.C.
1 20/ The Board explained its judgments concerning the hydrogen igniter
~
system, containment strength and equipment survivability (PID at 27-31, 35,45-47), the containment response computer code used by CEI (PID at 35-43), secondary fires (PID at 53), decay heat removal (PID at 51-52),
drywell pool loads (PID at 50-51), and bypass leakage (PID at 44-45).
I i
a I
Cir. 1975). It is also in accord with long standing agency practice, citing, Petition for Shutdown of Certain Reactors, CLI-73-31, 6 AEC 1069, 1070-71 (1973); Metropolitan Edison Co.
(Three Mile Island Nuclear Station Unit No. 2), ALAB-486, 8 NRC 9, 46 (1978).
The Appeal Board also pointed out the following pertinent remarks in Nader v. Rav, 363 F.Supp. 946, 954 (D.D.C.1973):
Absolute certainty or " complete," " entire," or " perfect" safety is not required by the Atomic Energy Act, nor does nuclear safety technology admit of such a standard. The Supreme Court recognized in the Power Reactor case that nuclear technology is subject to change. [367 U.S. 396 (1961)]. What constitutes " reasonable assurance of adequate protection" is also subject to change, as the state of the nuclear safety art advances. It is for the Commission to weigh the state of that art, the risk of accidents, the record of past performance, the need for further improvement in nuclear safety matters, and other considerations. Balancing i
these factors calls for the exercise of discretion by the expert agency.
ALAB-729, Id. Here, as was the case in Three Mile Island, supra, the Licensing Board determined that the Applicants' analysis had evaluated in detail the substantive provisions of the rule, and concluded, based on the information provided in the analysis and at hearing, that there was reasonable assurance of. safe, effective operation of the hydrogen control system at PNPP. PID at 87-109, Findings69-109. Clearly, the decision is based on substantial evidence regarding the function and effects on safety of the hydrogen control system at PNPP. Moreover, the Board considered and included in its decision, the various other subjects raised by OCRE at hearing. Id.
l In sum, the standard established by the Licensing Board for its 4 decision on the hydrogen control issue was a reasonable assurance of safe operation based on the evidence presented. The Board thoroughly considered the specific aspects of analysis required by the rule, prudently refused to limit the scope of the preliminary analysis in advance of hearing, and 4
__.s _ - ,_ - . _ _ _ _ _ ~ , , . . - _ , , _ . ,
_ . , , , . . , , , _ , _ , _ _ _ _ . . . . , . . - . _ . . . _._._,.__m
l l
l established a sound standard which required demonstration of reasonable assurance of safe operation of the PNPP hydrogen control system during full power operation. There was no assessment of interim operation and no mention of interim licensing. Contrary to OCRE's assertion that only a mention was made of the substantive provisions of the rule, the PID reflects l l
the Applicants' evidence demonstrating compliance with the hydrogen control rule, 10 CFR 9 50.44(c)(3)(iv)-(vii), in accord with principles described in Three Mile Island, ALAB-729, suora. OCRE fails to demonstrate any error, let alone reversible error, in the standard for decision for Issue 8.
- c. The Licensing Board Properly Delegated Incidental Matters Concerning Hydrogen Control To NRC Staff For Post-Hearing Resolution OCRE asserts that by using license conditions the Licensing Board has improperly delegated two contested issues to the NRC Staff for post-hearing resolution. Brief at 12. OCRE asserts but does not demonstrate, that Condition 7 (concerning analyses of equipment pressure survivability) and Condition 6, (concerning development of procedures for operation of the PNPP igniter system) were both contested issues delegated to the Staff by the Board. M . OCRE also alleges that the Board's reference to 10 CFR 6 2.206 procedures in the PID contravenes the Commission's decision in GPU Nuclear Corporation (Three Mile Island Station, Units 1 & 2), (0yster Creek Nuclear Generating Station), CLI-85-4, 21 NRC 561, 563 (1985), and Section 189a of
. the Atomic Energy Act. E M . OCRE offers no record references to support
--21/ This section of the Act describes requirements for hearings on proposed licensing actions by the Comission. OCRE does not explain this reference, but presumably it intended to mean that OCRE was deprived of
- a hearing on the subjects of Conditions 6 and 7.
l this theory, nor any argument to support its assertion that the subjects of ;
Conditions 6 and 7 to the PID were contested issues. In fact, they were not.
As previously discussed, Issue 8 questions whether the hydrogen control
- system at PNPP is adequate to assure safe accommodation of large amounts of hydrogen without a rupture of containment. This issue does not specify nor imply the matters described in the conditions challenged by OCRE. Moreover, OCRE has neither argued nor attempted to demonstrate that Conditions 6 and 7 affect the Board's ultimate conclusion that there is reasonable assurance that the PNPP hydrogen igniter system will function as designed, so that a degraded core accident will not threaten the integrity of containment or essential equipment. PID at 58. A review of the conditions illustrates the incidental nature of these items. Condition 6 states:
Written procedures for the operation of the hydrogen igniter system [must be) available before operation in excess of 5%
power.
PID at 123. This condition is based on the Board's determination that Applicants' commitment to provide written procedures for the igniter system prior to exceeding 5% power is sufficient, since completed procedures were not required for decision on Issue 8. PID at 28. In so deciding, the Board rejected OCRE's proposition that the absence of final operating procedures constituted a deficiency in the preliminary analysis of the hydrogen control system. The Board was not persuaded by OCRE's speculative argument that if the operating procedures were not produced at hearing there would be no assurance that the procedures are adequate. PID at 27.
Nothing has been presented to indicate that the development and implementation of hydrogen control system operating procedures will be anything more than routine and straightforward. Where there is no concrete
S suggestion of inadequacy. the mere possibility that a weakness in procedure or criterion may ultimately be disclosed should not prevent licensing.
Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),
i ALAB-788,- 20 NRC 1102, 1135, (1984). Thus, OCRE having posed only the
. speculation of a possibility of inadequate procedures, the Board properly left for# later completion the developmen of written procedures for opera-tion of the igniter system. E Condition 6 itself does not concern a
, contested issue, or a matter for which hearings are required. It was imposed by the Board only to assure that the hydrogen control system which
~
was litigated and found to be adequate is actually implemented and made operabb . Delegation of the task of generating and confirming operating
) ,
procedures was entirely proper.
i The same considerations discussed above apply to Condition 7, elleged byOCREtob[improperlydelegatedtoStaff. Condition 7 states:
' Applicants [must make] further confirmatory analysis of equipment in the containment that has not been qualified for pressure su'rvivability or have narrow margins of pressure survivability:
TMs includes containment vacuum breaker, hydrogen mixing compressor and discharge check valves.
PIDat123.~OCNEassertsthatthiscondition,basedontheconclusionsin s the PID at 4T-48, constitutes improper delegation to the Staff of a contested issue. Again OCRE provides no support for this proposition.
g s
-22/* The Board noted thr.t OCRE had not pointed to any equipment that would not be available nor to any requirement of the regulation to support OCRE's position. PID at 28. Hom ver, the Board did address OCRE's concern by explaining that, if OCRE viewed the procedures deficient at the time of their submission to the Commission, redress could be obtained by means of the Comission's 10 CFR 2.206 procedure. PID pp.
28-29. Despite OCRE's characterization of this as legally prohibited, this avenue is indeed the appropriate means for intervenors to raise issues outside the scope of hearing. Union Electric Company (Callaway Plant, Unit 1), ALAB-750,18 NRC 1205,1217, fn. 39 (1983).
s
/ 4
The Board found that the record showed the essential equipment in Perry containment is qualified to withstand the temperatures and pressures likely to be generated during hydrogen combustion. PID at 56. E/ However, the
~
Board found the record contained an inadequate explanation for Staff's
. acceptance of what the Board considered to be low qualification pressures for certain components, and that Applicants' analysis of the hydrogen mixing compressors was insufficient to show qualification to withstand containment pressures. PID at 47. The Board did, however, indicate that its assessment was subjective and acknowledged the fact that Staff and Applicants believe the pressures to be conservative. M. At bottom, the Board simply described a lack of clarity of the record concerning the pressure qualifica-tion of certain components in the Perry containment for which it believed further analysis should be performed. PID pp. 47-48. The Board did not state that its questions about these particular components undermined its conclusion that the essential equipment in containment will function during hydrogen combustion nor did the Board raise doubts concerning eventual demonstration of equipment qualification.
Moreover, OCRE did not raise this issue before or during hearing.
There is nothing in the record nor in OCRE's Brief to suggest that the pressure qualification of three specific components in the PNPP containment was a contested issue. Additionally, the PID reflects the Staff's testimony that other items of essential equipment in the Perry containment had not yet been demonstrated qualified, but that the requirements of 10 CFR 50.49(1)
-~23/ The PID pp. 45-48, discusses the record evidence of equipment survivability at PNPP, based on findings set out at PID pp. 103-105 (Findings 136-143).
i would necessitate qualification of this equipment by November 30, 1985. PID at 47. EI The Appeal Board's decision in Three Mile Island addressed a similar sit.uation. There, the intervenors also alleged improper delegation
~
of a contested issue to NRC Staff, but the Appeal Board stated:
The monitoring of the test and the evaluation of the results does not, in our judgment, involve decisional responsibility, and is within the authority conferred on the staff by the Comission.
ALAB-729, supra,17 NRC at 887. El Cf. Callaway, ALAB-750, supra, 18 NRC
- at 1216-17. Condition 7 concerns only the evaluation of qualification of equipment in compliance with a regulation, and does not affect the Board's decision on Issue 8.
Based on the above discussions, it is clear that OCRE's assertions are without merit. In neither Condition 6 nor Condition 7 did the Board defer a contested issue to the Staff for resolution, but rather required completion of matters incidental to the Board's overall conclusion as to the system at issue.
-24/ Garg, Tr. ff. 3676, p. 6. See also: supplementary information concerning the hydrogen control rule (50 Fed. M g. 3501) where it is stated:
. The Comission now believes, in view of the recent issuance of 10 CFR 50.49, " Environmental Qualification of Electrical Equipment
, Important to Safety," that there is no significant difference between demonstrating survivability and demonstrating qualification.
The supplementary information goes on to state that qualification in accord with 50.49(f) is the equivalent of equipment survivability
! required by the hydrogen control rule. M.
-25/ The Appeal Board noted, however, that if the tests failed to confirm the Licensing Board's conclusions, the Staff should so advise the Comission. M.
l
- d. The Partial Initial Decision Is Based On Reliable Evidence OCRE asserts that the Licensing Board based its decision on testimony by witnesses who were untruthful or incompetent. OCRE Brief at 13. OCRE cites numerous record references in support of this proposition. El OCRE
, asserts that the Board relied on "ipse dixit" avennents of witnesses and other (unspecified) material not in the record and incapable of examination, in contravention of Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-555, 10 NRC 23 (1979), E/andPacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
ALAB-580, 11 NRC 227, 229-30 (1980). OCRE Brief at 13-14. OCRE's assertions, however, primarily concern matters raised at hearing by OCRE
-26/ However, an investigation of the transcript references cited show nothing to support 0CRE's assertions. Tr. 3329-30 concerns confusion created by cross-examination questions on two different reports.
Tr. 3479 concerns the credibility of a GE engineer, not a witness. Tr.
3660, 3313-15, 3593, 3277-78, 3582, 3650 contain nothing to support CCRE's assertion concerning witness incompetency. Furthermore, OCRE's Exhibit 18 is simply an NRC Staff Summary Report of a meeting with Cleveland Electric Illuminating Co. on containment weld deficiencies dated May 4, 1983. Tr. 3672 contains an assertion of his competency in the hydrogen combustion field by witness Notafrancesco. Tr. 3255 contains the scientific qualification of witness Fuls as an expert.
Tr. 3543-46 concerns the mistaken identity of a document by witness Fuls. Tr. 3517-18 simply indicates witness Lewis had not seen a preliminary report not in evidence at hearing. Tr. 3522 contains a statement by the expert witness (Lewis) who explained the basis of his testimony as " published literature," and Tr. 3627 is simply a discussion of tests conducted on hydrogen igniters by Applicants' witnesses (on redirect examination). None of these references indicate the witnesses were unreliable or imcompetent.
i 27/ Although not specified, OCRE apparently cites the part of this decision which holds that an expert witness may not be allowed to state his ultimate conclusions on a crucial aspect of the issue being tried and then profess an inability to provide a foundation for them. North Anna, supra, at 26.
l i
, . , . , - . _ , , , - . . . - - - . - - ,-- . _-,.-n.. _,, ,- -
n -,e..., -nn.. - - , - ,.,. . , -
which were not directly related to the hydrogen control system. El OCRE makes no explanation as to how any of the evidence described affects the ultimate decision so as to constitute reversible error. The following discussion will demonstrate that none of the assertions of error set out
, above are supported by the record, and that for the most part, the claims do not concern matters necessary to an ultimate conclusion on the issue.
The first alleged error concerns calculations performed by Gilbert Comonwealth of hydrogen burn pressures, for comparison with those calcu-lated by the APTECH Corporation in 1983 concerning PNPP containment strength. PID at 96. E/ The witness (Alley) explained that the person who
-28/ OCRE claims the decision errs by reliance on (1) witnesses' description of analyses of stresses at defective welds in containment, because the analyses were not available for 0CRE's scrutiny; (2) testimony of Applicants' witness (Lewis) concerning flame speeds, because the witness did not identify the experimental basis sufficiently; (3) testimony concerning drywell leakage of hydrogen since hydrogen leakage had not been evaluated; (4) analyses for GGNS which were not part of the record and not provided to OCRE by Applicants. Brief 14-15. In connection with this claim of unreliable evidence, OCRE argues the Board erred by interpreting the hydrogen control rule to permit reference to studies or analyses at other similar reactors, and
. that 10 CFR 9 50.44(c)(3)(vii)(B) permits reference to other analyses only for pressurized water reactors. OCRE claims 50 Fed. Je R . 3502 supports this theory. OCRE Brief, at 14-15. OCRE asserts the Board erroneously relied on (5) witnesses' conclusions concerning the ability of the Reactor Core Isolation Coolant (RCIC) system to retain coolant makeup in station blackout, despite the witness' unfamiliarity with the details of the analysis, (6) testimony by unqualified witnesses con-cerningequipmenthatch0-ringcompressionset,(7) unreliable testimony concerning the capacity of penetration seals to withstand high temperatures from diffusion flames, (8) an assessment of hydrogen cottbustion by an unqualified staff witness; (9) insufficient evidence for the final analysis and (10) witnesses' statements concerning possible violent overflow of suppression pool loads into the drywell from hydrogen combustion, contrary to the evidence. Brief at 15-16.
-29/ Id., Finding 103. See also: Tr. 3732 where the witness states that tTie deficiencies considered in the APTECH analysis, as well as a problem in construction of the annulus concrete were evaluated in SSER
- 4 for PNPP, pp. 3-1 to 3-5 (February 1984), and determined resolved.
1 actually performed the calculations was in the hearing room, yet OCRE did l not call this person as a witness, E/ ut b now claims this infomation was not made available. Moreover, the 1983 APTECH report on defective welds in PNPP containment was introduced into the record as OCRE's Exhibit 13. PID
, Finding 103. In any event, OCRE has not explained the significance of these comparative calculations to the Board's conclusion that the containment at PNPP can withstand the pressures and temperatures resulting from hydrogen combustion in accord with 10 CFR 9 50.44(c)(3)(iv)(B) and that the defective welds had been properly analyzed. PID at 31-32, 56. The analysis of the PNPP containment strength is contained in Applicants' preliminary analysis and was available to OCRE. El OCRE only speculates that the comparative 4
calculations might be significant, but does not show the evidence was unreliable.
Contrary to 0CRE's second assertion, the Board relied on a recognized ccabustion expert witness (Lewis) concerning flame speeds. El PID at 102, Finding 132. Dr. Lewis, while explaining flame speed experiments, stated that his knowledge is based on " literature open to the world." EI By this, Dr. Lewis indicated that his knowledge is based on the literature in his area of expertise, contrary to OCRE's claim that the witness provided
.ir. sufficient basis for his testimony. It is well established that in order for expert testimony to be admissible, it need only (1) assist the trier of y / Tr. 3315-16.
3J/ Applicants' Ex. 8-1. Tr. ff. 3243.
a
-32/ See: Statement of Professional Qualifications of Dr. Bernard Lewis, Tr ff. 3241.
i 33/ Tr. 3522. l i
4 fact and (2) be rendered by a properly qualified witness. Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC1076,1091(1983), citing, Fed. R. Evid. 702; c.f., Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2) ALAB-669, 15 NRC 453,
. 475 (1982). OCRE has provided no reason to suspect the expert credentials of Dr. Lewis which are set out at length in the record.
- Contrary to OCRE's assertion that drywell leakage of hydrogen had not been evaluated, the Board's decision reflects testimony that a General Electric analysis of hydrogen bypass through the drywell demonstrated that 4
this event is not significant to the preliminary analysis of the hydrogen
, control system at PNPP. PID at 45. Because of this study, the witness i stated that no evaluation of the effect of the small amount of hydrogen leakage had been performed. El Although OCRE claims this is an unsupported j statement, the witnesses merely indicated it was unnecessary to address the subject in the analysis of the PNPP hydrogen control system. E l OCRE's further complaint that the General Electric analysis of hydrogen bypass was not made available to OCRE does nothing to impeach the credibility of the witnesses nor does this fact have any relation to the Board's decision concerning the adequacy of the hydrogen control system at PNPP.
OCRE's assertion that portions of the PID El are in error because they relied on analyses of GGNS which were not a part of the record and not made 4
3_4/ Tr. 3500.
-35/ Tr. 3628-29. The General Electric analysis showed bypass would be about 14-19%.
36/ OCRE challenges Findings 103, 106, 114, 136 and 138, and argues that 9 50.44(c)(vii)(B) applies only to pressurized water reactors, so that reliance on other analyses for boiling water reactors is not permitted.
available to OCRE during discovery is simply incorrect. El Such references to other studies are specifically sanctioned by the hydrogen control rule.
The statement of considerations issued along with the hydrogen control rule states as follows:
It is apparent that applicants and licensees with conceptually different reactors may have to address other scenarios. The appropriate details for Mark III BWRs, for example, are currently being worked out through interaction between the NRC Staff and applicants.
Previously approved generic or reference analyses may be employed in lieu of plant specific analyses where the generic analyses can be shown to be applicable. It is believed that the adoption of the above approach will eliminate the need for repetitive calculation of accident scenarios.
50 Fed. R_eg.
e 3502.
It is clear that the Comission approved references to analyses for other plants when appropriate. Moreover, OCRE's complaint that the GGNS analyses were not made available to OCRE, E I is neither correct nor pertinent to the reliability of the evidence. OCRE has demonstrated no reason to question analyses for the GGNS hydrogen control system which are applicable to PNPP. .
Similarly, there is no error in the PID which relies on testimony corcerning the ability of the RCIC system to maintain coolant makeup during station blackout. EI OCRE claims that the record indicates the witness is
. 37/ The PID findings rely on certain studies at the GGNS applicable to the PNPP structure and systems, as explained by the Board at PID pages 24, 35 and 46.
-38/ OCRE complains that its interrogatory request to CEI for all documents prepared for Mississippi Power and Light Company did not produce the analyses for GGNS. Brief at 15.
M / Tr. 3609 (Applicants' witness, Richardson, employed by Enercon Services).
i unreliable whereas the record only indicates the witness, not an employee of CEI, knew conclusions drawn by an analysis of the PNPP RCIC but was not familiar with the full details of the RCIC at Perry. S/ Again, OCRE has
~
not pointed to evidence crucial to the decision on Issue 8 since the RCIC
. is not part of the hydrogen control system.
OCRE's claim that the Board relied on an unsupported assertion concerning "0-ring compression set" S/by an "obviously unqualified witness" is contradicted by the record. This portion of the decision relies on the testimony of Mr. Alley of Gilbert Commonwealth whose professional qualifications on the record fully support his competency to testify on this subject. PID at 97, Finding 108. S / OCRE's transcript reference only j indicates Mr. Alley was not familiar with the term " synergistic effects" used by OCRE's representative. SI
! Similarly, the Board's findings on the ability of penetration seals to withstand the high temperatures resulting from diffusion flames are based on reliable evidence and testimony of a reliable witness, whose professional qualifications fully support his expertise in the subject of his testimony.
PID at 48, 98, Finding 113. S / In any event, analysis of diffusion burning 4
is not part of the preliminary analysis, but is the subject of testing by
-40/ Tr. 3660. However, OCRE did not question the panel witness (Buzzelli) who works at PNPP. Further, the RCIC is described in Applicants' FSAR.
l 41/ This subject arose in connection with the analysis of PNPP containment strength performed by Gilbert-Comonwealth.
42/ Professional Qualifications of Roger W. Alley, Tr. ff. 3241 and 4
Tr. 3581-82, 3278.
i g / Tr. 3650.
44/ Tr. 3241, 3623-24.
f i
the HC0G for the final analysis. El Thus, this testimony was not necessary to the Board's decision on the adequacy of the preliminary analysis to demonstrate.the sufficiency of the PNPP hydrogen cor. trol system.
OCRE's assertion that the Board erred because of reliance upon a staff
. witness who is " clearly not a combustion expert," is not even supported by t
OCRE's own references. OCRE's transcript reference asserts the staff wit-ness _i_s,well s versed in the hydrogen combustion field. PID at 39, 102, Finding 133. El OCRE's assertion of error in the decision concerning OCRE's proposi-tion that the Board should have explored the details of the final analysis to be performed by HC0G is baseless because the hydrogen control rule clearly states that final analyses are not necessary for a. determination that a plant is safe to operate at full power, provided the Applicant has submitted a preliminary analysis determined satisfactory to support interim operation at full power, pending completion of the final analysis. 10 CFR 50.44(c)(vii)(B). Consequently, OCRE's argument here constitutes an imper-missible challenge to the Commission's hydrogen control rule, and does not point to error in the decision. Moreover, the Board's decision explains clearly the experimental testing being performed by the HCOG for the final i
g/ Tr. 3581.
46/ Tr. 3672-75. Further, the witness' professional qualifications support
~-
his expertise in this area. Tr. ff. 3676.
l
analysis and properly rejects 0CRE's argument about proper experimental methods. PID at 48-49. El Finally, there is no record support for CCRE's assertion that the Board erroneously relied on testimony by Applicants' witness concerning analysis
. of violent overflow of suppression pool loads into the drywell at GGNS. The decision states that Applicants considered possible violent overflow of the suppression pool into the drywell as a result of hydrogen combustion, but concludes that this subject is beyond the scope of matters related to hydrogen control. PID at 51, Finding 153. E l In summary, OCRE has provided no support for the many assertions that the testimony of the witnesses was unreliable or incompetent. In fact, the record challenged by OCRE demonstrates the expertise and competency of the l witnesses. The professional qualifications attached to the written testi-mony fully support the ability of the witnesses to testify on the subjects considered during i 2 hearing on the hydrogen control issue.
Moreover, the Appeal Board's decision in North Anna, ALAB-555, supra, contradicts OCRE's assertions. This decision states that witnesses need not ,
E/ The Board explains further, that OCRE's proposal for the proper method of testing in the Owner's Group experiments would result in a core melt which is beyond the scope of the degraded core accidents and the tests being performed by the Owner's Group. See: Tr. 3622-23, and Tr. 3696
~
where the Board denied admission of a document proffered by OCRE which concerned use of the BWR heating code in the final analysis. The Board made similar rulings at Tr. 3740 and 3744.
48/ In addition, contrary to OCRE's assertion, the witnesses simply
~
explained studies of suppression pool overflow and differential pressures. Tr. 3493-96. The record does not indicate the witnesses' testinony is unreliable and OCRE makes no explanation as to how its Exhibit 19 supports OCRE's proposition. Letter, A. Schwencer to D.
Davidson, September, 1982. Request for Additional Information Regard-ing Degraded Core Hydrogen control for Perry Nuclear Power Plant.
Tr. ff. 3683.
-.n...,, -_.---y_- -
--g- ,_-,, - . _ - . , , .,,r.-- .,-.7 - , - - , , - . , , , , , , , , . . , , , . , , _ - , _ ,_ .
have on hand at hearing every piece of datum utilized in their analyses.
Rather, only where the outcome on a " clearly defined and substantial safety or environmental issue" may result is it necessary to make available suf-ficient information to permit the correctness of the conclusion to be evalu-
. ated. ALAB-555, supra, 10 NRC at 27. However, in none of the assertions of unreliable evidence has OCRE pointed to a " clearly defined and substan-tial" issue for which insufficient data was available. To the contrary, OCRE's claims of unreliable evidence primarily address questions raised during cross-examination which were not directly related to the hydrogen control issue. OCRE has failed to show one instance where the testi. mony relied on by the Board was inaccurate, incredible or so crucial to the final decision on the ultimate issue that a full and complete documentation of underlying analyses was required for decision. Consequently, there is no merit whatsoever to OCRE's assertion that the PID is based on unreliable evidence.
- e. The Partial Initial Decision Is Founded On The Weight Of The Evidence ,
OCRE asserts that the Licensing Board ignored crucial evidence, mis-characterized OrcE's arguments and Proposed Findings, " created bizarre theories" for refusing to consider the facts, and continually placed the burden of proof on OCPE. Brief 16-17. According to OCRE the Board erred by excluding cross-examination on containment venting, by assuming that containment venting will be conducted within regulatory limits, and by
i !
assuming that a sufficient vent path will be chosen. OCRE Brief at 17. El i
j However, OCRE fails to explain how the Licensing Board committed legal error ;
j by concluding that the hydrogen control rule does not encompass compliance
- with 10 CFR Part 100 in the event of containment venting. PID at 28. More ;
l1 . significantly, OCRE has not explained how venting of containment is related t
, to Issue 8 or the weight of the evidence. OCRE simply failed to persuade ,
3 l the Board that containment venting was related to the requirements of the l hydrogen control rule. If the Board did not accurately reflect OCRE's arguments, it is OCRE who is at fault. Parties bear the responsibility to
{
! present their positions in intelligible fonn to the dccisionmaker. (
l Louisiana Power A Light Company (Waterford Steam E'ectric Station, Unit 3),
- ALAB-801,21NRC479,483(1985). There is no rarit to OCRE's claim of ;
l error concerning the weight of the evidence for containment venting, which j the Board correctly decided was not related to the Contention.
i i OCRE also claims the Board decision errs by stating station blackout is !
l <
! unlikely without support in the record. OCRE Brief at 18. According to !
! l OCRE, this statement contradicts the Appeal Board's direction that l
! probabilities of occurrences espoused at hearing must be supported by j adequate analytical bases, in Public Service Electric & Gas Co. (Hope Creek i
{ Generating Station, Units 1 & 2), ALAR-518, 9 NRC 14, 29 (1979). However, j OCRE fails to point out that the Board determined station blackout to be an I . i i
1 i
M/ In support of this theory OCRE refers (1) to an explanation by Applicants' ;
I witness (Tr.3443)thatcontainmentventingisperformedtocontrolover-
! pressure, (ii) to a letter to the Licensing Board from OCRE, not in the '
record, concerning containment venting procedures, and (iii) to the state-i l ment of consideration issued along with the hydrogen control rule at 50 l l Fed. _Pe3 3500 which comment., that the hydrogen control rule assumes the !
l containment is leak tight. Brief at 17. l 2
i 1
1 i
j 4
! unresolved safety issue listed in the Safety Evaluation Report for PNPP and j r j not directly before the Board as part of the hydrogen control issue. PID ;
l at 37,105-106, Findings 144-145. (See also: 50 Fed. Reg. 3502). Neverthe- !
less, the PID does to some extent consider station blackout. PID pp. 36-37,
[ . Finding 158. In any event OCRE's reference to Hope Creek, where the analysis in question was directly related to the issue before the board, is not applicable to this situation. Unresolved generic safety issues may j be raised by filing a proper contention, but not as part of another issue,
! as OCRE attempted. Pacific Gas and Electric Company (Diablo Canyon Nuclear l 1 t Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983). As in the
, previous assertion. OCRE simply quarrels with the Board's rejection of a
! proposal by OCRE to expand the scope of the contention at hearing but does ,
not address the weight of the evidence on the issue. However, the Board properly limited cross-examination to the scope of the contention. Waterford, ;
supra ALAB-732,17 NRC at 1096; Southern California Edison Co. (San Onofre
! I j Nuclear Generating Station, Units 2 and 3) ALAB-673, 15 NRC 688, 698, aff'd, f CLI-82-11,15 NRC 1383 (1982). OCRE has shown no error in the Licensing I i t
- Board's decision rejecting station blackout from detailed consideration. t i e
} OCRE claims the Board erred by ignoring substantial evidence in OCRE's exhibits E concerning the CLASIX-3 computer code, used for the PNPP prelimina'y analysis. OCRE Brief at 19. However, the Board's decision l refutes GCRE's assertion entirely. The Board sets out at length its l l examination of OCRE's Exhibit 21. E and explains the reasons for rejecting 50/ OCRE refers to its Exhibit 21 at 17-18, 93-94, 199 and OCRE Exhibit 20,
~
51/ " Review of the Grand Gulf Hydrogen Igniter System" by Sandia National l Laboratory, NUREG/CR-2530. Tr. ff. 3691. ,
l 1
l l -. - .- -.. - . - _ . - . . .
. _ _ - - -~ - _
i OCRE's arguments concerning the analysis. El PID at 38-39. OCRE's argument that the HECTR code is to be preferred over the CLAS!X code was not t
^
supported by OCRE's evidence. PID at 38. Similarly, OCRE's Exhibit 20,
~
I which OCRE believes was improperly rejected by the Board, is simply a Staff request for information concerning inadequacies in CLASIX-3 modeling, E I I
made irrelevant by Staff testimony that the code was modeled conservatively i by CEI. El Finally, the decision sets out in detail the evidence on which l i the Board based its decision that the CLASIX-3 computer code was appropriate l l I for use in analyzing the hydrogen control system at the Perry plant. PID at
! 100-102, Findings 122-133. OCRE has failed entirely to show that the Board !
i did not consider the weight of the evidence concerning the CLASIX-3 computer !
) i 4
code, i I
OCRE asserts that the Board ignored evidence that hydrogen igniter ,
) locations and spray shields for the igniters would affect combustion charac-f teristics. OCRE Brief at 19. OCRE offers again its Exhibit 21 E/ in
- support of this claim. Id. OCRE's Exhibit 21, however, only contains a j general discussion of optimum locations for igniters and spray shields. It j is r.ot inconsistent with the Licensing Board's determination that the location of igniters is not critical because igniters are placed "everywhere ;
i j hydrogen could go." PID at 41-42, 90-91, Findings 81, 83, 84. ;
- j i
52/ The analysis compared the HECTR computer code, the CLASIX-3 computer i code and the MARCH computer code. ;
l M / Tr. 3687. j i -
54/ Tr. 3722, 3733 34 The witness also testified that OCRE's Ex. 21 did -
J not contain information affecting Applicants' use of the CLASIX-3 code for the preliminary analysis. Tr. 3723. i l ~
i ,55) Ex. 21, pp. 195-96.
1 i
a i
l j OCRE also asserts the Board accepted Applicants' witnesses' statements i 1 on this subject in spite of the Board's " recognition of Sandia's exper-tise," E and asserts the Board ignored experimental data from Nevada Test
~
Site (NTS) tests,concerninghydrogenburning. Id. El Nevertheless, the i . Board addressed descriptions of igniter locations in the Sandia report. PID l
at 41. The NTS data referenced by OCRE concern tests which demonstrated the reliability of igniters, and which support the Board's findings. PID at ,
) 91, Finding 84 1
] OCRE claims error in the decision because the Board found that the l A? TECH analysis of defective containment welds did not "take credit" for the annulus concrete. El OCRE Brief at 19. OCRE claims this is error because the Board ignored OCRE's Exhibit 18 which OCRE claims contains contrary
] evidence. However, the decision states "while APTECH's analysis did not e
j consider the annulus concrete, the Applicants in their additional werk did j evaluate [it] . . ." PID at 32. Additionally, OCRE's Exhibit 18 is a 1983 f sumary report of a meeting between NRC Staff and CE! concerning the discovery of containment weld deficiencies at PNPP, which does not mention APTECF, and does not support OCRE's assertion.
j OCRE next asserts that the decision is in error due to a mischaracter-ization of OCRE's arguments concerning the APTECH analysis. Brief at 19-20.
l ,
j Although the possible mischaracterization of a party's arrvent is not l l !
2 l -
56/ The Roard only indirectly referred to the competence of the Sandia Laboratory during adnission of OCPE's Ex. 21. Tr. 3687.
{ E/ Described at Tr. 3627.
l 58/ As previously indicated, the annulus concrete problem was addressed in
- i SSER #4 and found resolved, Tr. 373?.
3 I
- I necessarily legal error, the PID notes OCRE's opinion that inadequate f
- margins were used by the APTECH Company and concludes this is merely an argument with experts. PID at 31. OCRE's difference of opinion with the ,
expert witnesses is not evidence which could properly be considered.
l Consequently, this assertion is not material.
OCRE asserts that the decision " avoided" the issue of containment spray f
availability and claims that its Exhibits E rovide p evidence in this
} regard which was not considered by the Board. OCRE Brief at 20. The l
l decision did consider OCRE's Exhibit P1 but found it contained no evidence indicating that core spray would not be available. PID at 43. More I
importantly, the Board rejected OCRE's argument that core spray ;
j unavailability during a degraded core accident is shown by Applicants' i l
hypothetical assumption of core spray unavailability, necessary to ,
I l analytically produce a degraded core in the computer model. PID p. 44 j OCRE essentially complains the Board did not include the containment spray i
l in the scope of Issue 8. However, as explained by the Board, the hydrogen l
j control system does not. include the containment spray, and this subject should have been raised by a separate contention. PID at 44.
1 OCRE also asserts error in the decision because the Board did not 1
- accept OCRE's arguments about other systems and scenarios. OCRE Brief i at 20. OCRE explains it did not intend to litigate the adequacy of the '
I -
containment spray and RHR systems but only " wished to examine the i
j conservatisms" in Applicants' containment response analysis. Brief at 20. ;
! However, the Board explained that the hydrogen control rule is not a vehicle I
i 59/ OCRE Ex. 19 (p. 4), Ex. 21, (pp. 12, 94).
i l
to test the comprehensive safety analysis of other plant systems and properly excluded matters from the decision not reasonably related to the issue in accord with Waterford, supra, ALAB-732, 17 NRC at 1096. PID at 55.
OCRE asserts the decision is in error because the Board relied on the
. negative pressure capability of the PNPP containment without addressing the fact that the containment negative pressure relies on the containment vacuum breakers, which the Board found to be insufficiently qualified. Brief at 21. However, OCRE fails to explain how this alleged error affects the Board's conclusion that the PNPP containment will withstand the pressures created by hydrogen combustion (PID at 57-58), and fails to account for Condition 7 in the PID which requires a confirmatory demonstration of the qualification of the vacuum breakers. PID at 123.
OCPE claims error in the decision on the basis that the Board ignored evidence in OCRE's Exhibit 21 concerning the HECTR code and OCRE's Proposed Findings. OCRE Brief at 21. OCRE's point is not clear, especially since nothing in OCRE's Proposed Findings is evidence of record. OCRE's preference for the HECTR code is simply not relevant to the adequacy of the CLASIX-3 code actually used by Applicants. In any event, the Board's decision reflects comments in Exhibit 21 that both HECTR and CLASIX-3 codes contain parameters which are uncertain, and that the HECTR code has been revised. PID at 39-40 OCRE has demonstrated no error in the Board's conclusion that the weight of the evidence showed the CLASIX-3 Code was appropriately used. PID at 57 OCRE makes several other unsupported assertions of error concerning the adequacy of the CLASIX-3 code. OCRE claims that the decision " avoids" considering the effect of ionizing rediation on flame speed or alter-natively, misconstrues OCRE's argument and evidence. OCRE Brief at 21-22.
However, contrary to this claim, the Board assessed the expert testimony concerning ionizing radiation and found no evidence that it would affect hydrogen burns at PNPP. PID at 103. Moreover, OCRE's evidence does not directly' relate to the Board's judgment on the adequacy of the CLASIX-3
. code, but concerns flame speeds in the CLASIX-3 models, S/ core spray in the wet well, S/ gnition i limits and heat transfer, S/ none of which support OCRE's claim of error. The Board's decision acknowledges that the CLASIX-3 code may not be exact but is sufficiently reliable for use in the Applicants' preliminary analysis. PID at 44, 57. OCRE's assertions here do not undermine that finding.
OCRE also claims that the Board errs in concluding that some components in the PNPP containment are not qualified but failing to impose license conditions or other actions. Brief at 22. This is an astonishing assertion by OCRE in light of OCRE's allegation, discussed previously, that Condition 7 of the PID is an improper delegation of a contested issue for resolution by NRC Staff. See: OCRE Brief at 12. In any event, the Board did not err because it did, in fact, impose a condition requiring a demonstration of qualification for these components whose qualifications it questioned.
@/ Ex. 21, pp. 17-18, 61/ Tr. 3550.
g / Tr. 3516 Ex. 21, p. 18.
i f OCRE asserts that the Board erred by ignoring OCRE's evidence6_3/ of i
l secondary fires in containment and because the Applicants did not consider l i secondary f. ires in their preliminary analysis as stated by the Board. Brief at 22-23. However, OCRE's Exhibit 24 raises general questions of possible
. effects of secondary burning caused by hydrogen combustion and is entirely l unrelated to the preliminary analysis performed for PNPP. On the other
, hand, the Board's decision rests on the evidence of record which shows that i
secondary fires will not occur, based on tests by the Fenwal Corporation and j those at the Nevada Test Site as well as analyses perfonned for GGNS. PID I at 53. E/
{ OCRE also challenges the decision on the ground that it does not j accurately reflect Sandia's analysis of the HECTR code, E l and fails to follow the direction in Public Service Electric & Gas Co. (Hope Creek Generating Station, Units 1 & 2), ALAB-429, 6 NRC 229, 237 (1977) because the Board did not explain why evidence admitted to the record was rejected.
OCRE Brief at 23. However, the bases for OCRE's claims are unclear. A l review of OCRE's transcript references shows only a discussion of various changes in the HECTR code El contained in a document not in the record, but i
8
-63/ OCRE's Ex. 24. " Electric Cable Insulation Pyrolysis and Ignition Resulting from Potential Hydrogen Burn Scenarios for Nuclear Containment Buildings," authored by Berlad, Jaung and Pratt, of the Brookhaven National Laboratory, New York.
- 64/ See
- PID Findings 147-48 and Tr. 3580-81.
I j 65/ OCRE cites Tr. 3738, 3741-42.
. 66/ Tr. 3738.
t i
rather, belonging to the Staff witness b Thus, it is not clear what evidence OCRE claims was admitted by the Board and rejected without explana-1 tion. The document in question was not admitted as evidence. Once again,
! the Board's decision clearly sets out its reasoning for its determinations i ,
on the CLASIX-3 code (PID at 100-102, Findings 122-124,126,133), and OCRE has not explained in what way its claims about the HECTR code affect the i validity of the Board's decision.
In sum, OCRE's assertions that the PID is not founded on the weight of the evidence consist primarily of complaints that the Board rejected OCRE's evidence about subjects unrelated to Issue 8. OCRE's claim that the PID
- ignores the weight of the evidence is wholly unsupported and totally without j merit.
- f. The Board Placed The Burden Of Proof On The Applicants For Issue 8
]
j OCRE claims that the Licensing Board erred by putting the burden of i
l proof on OCRE to show that the HEATING-6 code, used by Applicants for 1
analysis of eouipment survivability, is nonconservative. OCRE Brief at 23.
However, the decision explains that OCRE did not develop a basis for l
- challenging this computer code. PID at 46. Consequently, as the Board noted, there is nothing in the record to challenge Applicants' use of this
. code. Id. It was OCRE's responsibility to indicate a reason for inquiry
- into the HEATING code, since, although the ultimate burden of proof is on the applicant, where one of the parties contends that for a specific reason
.Il the license should be denied, that party has the burden of going forward 67/ Tr. 3735-3742. OCRE questioned the Staff witness about a document in his possession which only OCRE and the witness saw.
i
. - . -. . . - - . - - . _ = - _ _ - - -__ - -_ . _ . - - . _ - - - - . - .
J i
e !
l with evidence to support the issue. Waterford, supra, ALAB-732, 17 NRC at !
1093, citing Consumers Power Company (Midland Plant, Units 1 and 2), j
! i
, ALAB-123,6.AEC331,345(1973). In this instance OCRE did not bear its ;
burden of going forward with some basis to cause inquiry into the HEATING
- . code which was questioned first at hearing. The Licensing Board did not
) shift the burden of proof, which remains with the Applicants (PID at 59),
but simply found that nothing was presented which challenged the propriety l i
j of using the HEATING code. "
OCRE also finds cause for complaint in the decision because the Board
" rejected" OCRE's Proposed Findings concerning containment integrity and ,
4 .
- " accepted" Applicants' Proposed Findings, thus allegedly placing the burden of proof on OCRE to show error in Applicants' calculations. Brief pp.
23-24 There is clearly no merit to this assertion, since the decision is
} based on the record evidence and not on the parties' proposed findings. PID l at 93-94, Findings 86-96. Further, OCRE's proposed findings are not the
] proper means to raise an issue for the first time, nor to attempt to gener- l j! ate evidence concerning. issues raised.
! OCRE finds additional error in the decision because the Board's findings are contrary to OCRE's interpretation of record evidence which OCRE 1 ,
j believes implicitly placed the burden of proof on OCRE. OCRE Brief at 24 l However, the record references contain only a discussion of tests at Sandia (
National Laboratory aimed at methods of predicting containment rupture, i
This subject is unrelated to the portion of the decision alleged to be in t
l t I i i
error which discusses the ASME Code Service Level C requirements, and penetration seals requirements. PID at 32-34. El OCRE asserts the Board incorrectly affirmed Applicants' statements that all voids in the drywell have been found, contrary to the evidence, whereas o application of the correct burden of proof would have required Applicants to prove this. Brief at 24. Hcwever, as before, OCRE's own citations dispute OCRE's claims and support the Board's decision. PID at 35. In any event, concrete voids were not at issue in connection with the hydrogen control system.
OCRE also claims that the Board erred in interpreting testimony in response to OCRE's questions at hearing, in a manner contrary to OCPE's interpretation in its Proposed Findings. N / OCRE Brief pp. 24-25. E The questions concerned hypothetical situations, the credibility of which the witness disputed. E The Board correctly found the hypothetical events 68/ Tr. 3382-87, 3401, 3403-06, but see Tr. 3392-94 OCRE further claims the Board " Illegally took credit 7 or the ASME Code " Service Level 0" analysis contrary to the requirements of 10 CFR 50.44(c)(3)(iv)(8)(1),
but does not connect this to a burden of proof. Brief at 24. However, the decision only considers the Service Level D analysis as additional evidence of containment integrity, and rests on an analysis according to Service Level C limits of the ASME Code. PID at 29, 32, 34, 93.
g/ Tr. 3448-85.
' ~/
70 The transcript reference contains OCRE's questions about consequences of both PHR loops being unavailable for cooling (Tr. 3453,3469,3472),
the BWR owners group, guidelines and procedures for actions to reduce suppression pool temperature, the piping design at PNPP, progression from a degraded core accident to full core melt (Tr. 3472-73), specula-tions that the hydrogen control system would degrade decay heat removal (Tr. 3474), and concerns of a former employee of General Electric, Mr. John Humphrey, regarding offects of containment spray. Tr.
3478-3483.
71/
1 Tr. 3483.
t t
I raised by OCRE's cross-examination not significant to safety issues concerning the hydrogen control system before the Board. PID at 51-53, Finding 156. [
OCRE concludes its discussion of Issue 8 with the claim that "to the extent that the PID is inconsistent with OCRE's Proposed Findings, it is
. erroneous." Brief at 25. Nevertheless, OCRE has provided no support for I any claim of error in the Board's decision on the evidence submitted con- f cerning issue 8, nor is there any basis in fact or law for OCRE's complaint -
about the burden of proof. The decision is based on substantial, reliable evidence in the record, and the burden of proof rested on the Applicants, f
In sum, as den.onstrated above, there is no merit to any of the assertions
{
made by OCRE concerning the scope of the preliminary analysis, the standard '
for decision, or the credibility or the sufficiency of the evidence. The '
Board's decision on Issue 8 is amply supported by the record, and correctly appliestherecuirementsof10CFR650.44(c)(3)(iv)-(vii). ;
F
- 2. _The TDI Diesel Generator issue E/
- a. The Licensing Board Decision Regarding The TDI Diesel Issue Is Based On Reliable And Complete Evidence [
OCRE asserts legal error in the decision concerning the reliability of the TDI diesels at PNPP on the ground that a $taff witness disapproved the !
Applicants' evaluation of the diesel engine foundation. Brief at 26-27. i i
However, the evidence OCRE references shows that the Staff's witness l (Kirkwood) was mistaken as to the origin of the requirement at PNPP for P
R / !ssue 16 stated:
Applicant has not demonstrated it can reliably generate emergency on site power by relying on four Transamerica Delaval diesel l generators, two for each of its Perry Units.
i
l proper contact between the engine base and foundation chock plates, but that his opinion of proper standards for the diesel engines coincides with the standard and actions taken at PNPP to assure sufficient alignment of engine and foundation. EI OCRE has clearly mischaracterized the contents of f
. the record because the Staff's witness did not disapprove the evaluation i of the engine foundations at PNPP. There is no merit to OCRE's assertion to the contrary.
OCRE asserts that the decision ignores evidence on the record that the maintenance and surveillance program for the PNPP diesels may never be implemented. OCRE Brief at 27. E/ However, the Board found there was evi- [
l l dence that the maintenance program would be implemented based on the Staff's l Exhibit 4 as well as testimony which describes the Staff requirements for f riaintenance and testing. PID at 64 OCRE again has provided no support for I i
its assertion of error.
1 I
H/ OCRE cites a transcript discussion of a non-conformance report on the i FNPP diesels where.a requirement for 85% surface contact between the >
engine base and foundation chock plates is not met. The report con-tains calculations indicatirg a lesser contact standard is met. The Staff witness believed the 85% standard to have been established by ;
TOI, but upon questioning acknowledged the report stated the standard t was that of Gilbert Associates (GAI). The Staff witness stated that !
the engines should have better contact than shown in the non-conform-ance report or a thorough evaluation should be performed. Tr. 2417-19. l The Applicant's witness later indicated that, in fact, such an evalua- ;
tion was performed and the alignment was shown to be sufficient. I Tr. 2496-97. In this regard, condition 5 of the Partial Initial ;
Decision, at 123 requires the completion of items listed in the SSER #6, !
- p. 9-7. One item (6) requires demonstration of the adequacy of bearing !
stresses on chock plates, the subject of this portion of OCRE's appeal, j 74/ OCRE's references do not support this claim. Exhibit 2,(Tr.ff. '
2200), is simply a sumary of a TDI owners Group meeting dated February 1,1985, whereas the correspondence from CE! commits to testing and inspection of the TDI diesels as suggested by the Staff with two modifications requested by CEl.
i
l OCRE challenges the Board's Finding that OCRE's Exhibit 8. El concerning a defect discovered in TDI diesels, demonstrates only a random or isolated fa.ilure since OCRE asserts the document demonstrates a failure of !
I the TDI Owners Group Program. Brief at 2/. The Board explained its
, decision by pointing out that the TDI Owners Group program was designed to compensate TDI design defects by discovering defects through inspections, testing and tracking. PID at 65-66. OCRE's Exhibit 8 merely indicates that, in accordance with the Owners Group Program, TDI provided the '
Commission with information concerning discovery of a potential problem. ;
OCRE claims error by the Board in its assessment of the testimony by Staff's witness, Dr. Bush, E / which OCRE describes as disputing Applicants' acceptance criteria for engine blocks. Brief at 27-28. However, the decision accurately reflects the testimony of witness Bush who recommended certain limits be set for acceptable cracking in the engine blocks. PID !
at 120, Finding 198. Moreover, the decision points out this matter concerns only inspection of the diesels and is irrelevant to Issue 16 because no '
cracks had been found in the PNPP engine blocks. PID at 73. OCRE has not [
described error in the Licensing Board's decision in this regard. !
OCRE claims that the Board errs by relying on a statement concerning <
emergency power necessary for core cooling which was later retracted. OCRE Brief at 28. However, the decision simply describes the length of time the I
75/ Letter from Boyer to NRC Director of Office of Inspection and Enforcement, dated March 18, 1985.
~/
76 OCRE also asserts error in the Board's interpretation of Staff Ex. 5 (Staff's evaluation of the operability and reliability of the PNPP diesels) but this is not explained. Dr. Bush's testimony appears at l Tr. 2413. ;
l
A f
diesel engines can provide emergency power. PID at 72. E This assertion is not only baseless but not related to Issue 16.
OCRE claims that the Licensing Board disregarded 10 CFR 50 Appendix B
~
Criterion I by refusing to consider the character of the TDI Owners
. Group. 5 0CRE Brief at 28. However, the PID states in response to OCRE's proposal, that the question raised by Issue 16 is whether the j requalification of the diesel engines through the Owners Group program meets the requirements of GDC-1 and 17 finds no violation of Appendix B, Criterion I, and explains there was no need to consider the motivation of 1
i the members of the Owners Group, since the plan they produced speaks for '
l itself. PID at 62-63. There is no support for OCRE's characterization of !
- Criterion I of Appendix B which concerns only applicants' responsibility for an effective cuality assurance program regardless of delegation of i activities to other persons or organizations. 10 CFR Part 50, Appendix B, l Criterion I. The PID relies on sufficient evidence of quality assurance i l activities by the Applicants and TDI owners group. PID at 110-111. !
f b. The Board Properly Delegated Some Matters Concerning The TDI j Diesels To NRC Staff f OCRE asserts, as alleged on Issue 8, that the decision concerning the
! TDI diesels violates i 189a of the Atomic Energy Act and UCS, supra, by i
l delegating contested issues to the Staff for resolution. OCRE Brief at 29.
i I
77/ The witnesses stated fuel is required for one week operation of the '
diesels, thus providing ample time to obtain more fuel if extended emergency power is necessary. Tr. 2221-22, 2274
. r 1
~
78/ OCRE alleges that the Owners Group did not demonstrate independence 3 from considerations of cost and schedules. OCRE's referenced exhibits
- are summaries of meetings between the TDI Owners Group and NRC Staff, 3
and Applicant's response to DCRE's interrogatories.
I
_ . . _ . . _ _ _,._..___._._,_._,....,._._,..,.,-..-_.,,r_,. - , . _ . , . . . . , , . . . . . , _ _ _ _ _ , . , _ _ . . . . _ . _ . . _ . , . , - _ , _ _ _ , , - -
OCRE argues that certain items required to be completed in Condition 5 E
- of the decision are not confirmatory, but rather, concern analyses and tests in dispute.. _Id. OCRE has provided no evidence whatsoever that the matters
~
in Condition 5 of the PID were raised as issues by OCRE nor that the resolution of these items affects the Board's overall decision concerning the reliability of the TDI diesels. The Board's decision is based on a thorough review of the substantial evidence on the record concerning the TDI Owners Group comprehensive plan for revalidation of all TDI diesels at nuclear plants and the NRC Staff's review and approval of the implementation of the plan at PNPP assisted by the Staff's consultant, Pacific Northwest Laboratory. PID at 109-121. Moreover, UCS, supra is as inapplicable to the conditions concerning the TDI Issue as to those concerning Issue 8. All aspects of TDI diesel reliability were open to litigation and formed the contents of a lengthy record. The completion of a few of many items deemed j necessary by the Staff for validation of the diesel engines at PNPP does nothing to undermine the Board's conclusion that the TDI Owners Group program as implerrented at PNPP provides assurance of the reliability of the TDI diesels at PNPP. OCRE merely speculates about possible results of the tests which are matters appropriately left for Staff review in accord with Shoreham, ALAB-788, supra, 20 NRC at 1135.
OCRE once again asserts the PID constitutes " interim licensing" because the Staff's approval of the TDI diesels is only an " interim" approval, and 79/ Condition 5 requires completion of seven items listed in SSER #6,
. 9-7 concerning the TDI diesels. PID at 123. The items concern:
- 1) submission of a maintenance and surveillance program;
- 2) performance of a torsiograph test (3) description of engine
! (FOOTNOTECONTINUEDONNEXTPAGE)
-1
-, o
- the final Staff evaluation will be deferred until the first refueling
, outage. E OCRE Brief at 29-30. There is no merit to this assertion since the Staff's testimony at hearing provided Staff's conclusions that the PNPP diesels h~ad been adequately tested and inspected to permit licensing. PID
. 'a t 66.
OCRE also asserts that the Board errs by finding that the Staff's review of the diesels was extensive because it is contrary to the Board's finding during sumary disposition proceedings. Id. OCRE points to the fact that the PID recites the same Staff evidence provided at summary disposition which the Board considered brief and preliminary then. OCRE fails to point out the differen'ce in standards for decision between summary disposition and an, initial decision. Summary disposition may be granted only when al1 of the evidence, viewed in the light most favorable to the opponent of sumary dismissal, demonstrated that there is no genuine issue of material fact to be litigated. Cleveland Electric Illuminatino Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977); Public Service Co. of New H_ampshire, et al. (Seabrook Station, Units i 1 and 2), LBP-74-36', 7'AEC 877, 879 (1974). Simply because the Board found genuine issdes of material fact not fully resolved by a sumary disposition l
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) imbalance; (4) information about pushrods and jacket water pump shafts; (5) the control pariel asserrbly, (6) chock plates; and (7) one cylinder head. '
80/ Citing Tr. 2305. The Staff witness simply stated that the revalidation program will be reassessed by extensive inspection at the first
- refueling outage.
e l
5, - _ - _ _ . - _ - .
motion is not reason to question the Board's acceptance of the Staff's evaluation of the reliability of the TDI diesels as explained at hearing.
OCRE also asserts that the PID delegates an issue to the Staff concerning loads on the PNPP diesels. OCRE 'Br~ief at 30. OCRE argues that
- the actual loads are unknown so that conservatism requires maintenance of the standard set out in th'e procurement specification for continuous operation at 7000kw. S / Id. However, this assertion is not explained, whereas the decision does explain that specific loads on the diesels are to be determined in the future, and additional loads beyond those estimated in the FSAR would require an FSAR amendment and Staff review. PID at 73, Finding 197. El The loading expected for the PNPP diesels is set out in FSAR Table 8.3-1, and the PNPP diesels will operate at a maximum of 5630kw rating. El There is no error shown by this assertion.
- c. The Board Placed The Burden Of Proof On The Applicants Concerning Issue 16 0CRE again asserts the Board placed the burden of proof on the wrong party in its decision concerning the TOI diesels. Brief pp. 30-31. OCRE asserts the Applicant should have been required to prove that no vane failures will occur (in the diesel turbochargers) but that the Board 81/ Citing Tr. 2187-88.
-82/ Applicants' witness (Christiansen) testified that performance specifications were written by CEI for bids on emergency diesels which required minimum continuous emergency rating of 7000kw net output and guarantees of overload capacity (7700kw for 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> out of every 24).
Tr. 2186-88.
-83/ Tr. 2215, 2241; App. Ex. 16-1, Tr. ff. 2243; Tr. 2241, 2244. The witnesses explained that OCRE's proposal to apply the specification loading was inappropriate for operation of the diesels.
47 _
required OCRE to prove procedures are unacceptable for foundation evalua-tion, and required OCRE to prove that other components of the engine were defective. I_d . However, OCRE offers no explanation as to why the decision concerning these items is in error nor how the burden of proof was somehow
. shifted to 0CRE. PID at 63, 68-70, 74. A simple listing by OCRE of alleged defects in the TDI engines and an assertion of error without more is entirely insufficient to raise a genuine issue, and OCRE simply failed to provide a basis for inquiry into these subjects. Waterford, supra, ALAB-732, 17 NRC 1093.
In summary of OCRE's allegations of error in the Board's decision concerning the evidentiary basis, delegation of contested issues and burden of proof in regard to Issue 16, it is clear that OCRE has provided no support for its assertions and there is no merit to any of its claims.
Finally, as demonstrated above, OCRE's many claims of error concerning the decisions on Issues 8 and 16 are merely unsupported allegations. The Concluding Partial Initial Decision rests on the " reliable, probative, and substantial evidence in the record", the established standard for decision in Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Unit 2) ALAB-254, 8 AEC 1184, 1187 (1975). The Licensing Board stated the bases for decision on the issues and explained the reasons for rejecting OCRE's evidence, in accord with Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 41 (1977).
OCRE's appeal of the PID rests primarily on questions raised by OCRE at hearing which are not related to the adequacy of the hydrogen control system or the reliability of the TDI diesels, at PNPP. Consequently, the appeal leaves the decision on the issues essentially unchallenged.
i l
1 - , _ _ _ . =. _.
In short, the substantial testimony at hearing provided the requisite support for the ultimate Board determination of the issues, in the same manner as determined by the Appeal Board for the previous partial initial decision. Cleveland Electric Illuminating Company (Perry Nuclear Power
. Plant, Units 1 and 2), ALAB-802, 21 NRC 490, 505 (1985).
- 3. Other Licensing Board Rulings
- a. The Board Correctly Denied OCRE's Motion To Reopen The Record For Receipt Of Evidence Concerning The TDI Diesels OCRE challenges the Licensing Board Memorandum and Order dated May 28, 1985, which denied OCRE's motion to reopen the record to consider evidence of a failure of check valves in the TDI diesels at GGNS and the Shoreham Nuclear Plant. OCRE Brief pp. 32-33. OCRE alleges the Board's denial was contrary to the facts and not explained. Id. OCRE also states that the Board's standards for reopening the record were inconsistent with a previous decision in this proceeding, b Essentially, the Board rejected OCRE's motion to reopen the record because the check valves which failed in other diesels do not exist in the PNPP diesels, so that this failure was not relevant to the adequacy of the
-84/ LBP-83-52, 18 NRC 256 (1983). Whether or not prior decisions followed Commission standards for reopening the record has no bearing on the propriety of the decision here. The standards for reopening the record in an NRC proceeding require that (1) the motion be timely (2) the motion address a significant safety or environmental issue and (3) the motion demonstrate that a different result might be reached because of the new information. Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-803, 21 NRC 575, 578 (1985);
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 (1980) and ALAB-728, 17 NRC 777, 800 fn. 66 (1983). Pare allegations or simple submission of new contentions is not sufficient. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361,362(1981).
7 l
TDI diesels at PNPP or to the effectiveness of the Owners Group program.
Memorandum and Order, slip op. at 2. The valves had no prior history of adverse experience, but had nevertheless been reviewed by the TDI Owners Group. Id. For these reasons, the Board found the evidence offered by OCRE
. was not significant to the outcome of the decision concerning the TDI diesels I
under consideration by the Board. Id. Therefore, having found OCRE's motion contained no significant new evidence which could affect the decision, the Board's rejection of OCRE's motion was correct and in accord with the Commission's standard for reopening the record set out in Waterford and Diablo Canyon, supra. There is no merit to OCRE's appeal of this decision.
- b. The Board Correctly Interpreted 10 CFR 6 50.62 And Properly Dismissed Issue 6 0CRE challenges the Board's decision EI which denied OCRE's motion for sumary disposition in OCRE's favor on Issue 6 and dismissed the contention.
OCRE Brief at 33. OCRE's motion had asserted that automatic initiation must be installed for the PNPP standby liquid control system (SLCS). Id. OCRE asserts that the " legislative history" of 10 CFR 5 50.62(c)(4) EI indicates the rule excludes those plants with pre-1984 construction permits from a requirement for automatic SLCS on the basis of estimates of costs much greater than the cost of installing an automatic initiation system at PNPP.
85/ LBP-84-40, 20 NRC 1181 (1984).
86/ 10 CFR $ 50.62(c)(4), issued June 26, 1984 (49 Fed. RS . 26038), states in pertinent part:
The SLCS initiation must be automatic and trust be designed to perform its function in a reliable manner for plants granted a construction permit after July 26, 1984 and for plants granted a construction permit prior to July 26, 1984, that have already been designed and built to include this feature.
On this ground, OCRE argues that an automatic system must be installed at PNPP. OCRE also asserts that the decision delegates to NRC Staff the appli-cation of the rule to Unit 2. Brief at 35. OCRE argues the Board was too
~
literal in its interpretation, overlooked the original design of an autcmatic initiation for the SLCS at PNPP, erred by concluding that a full value/ impact analysis should be performed prior to determining costs, and denied the importance of the safety feature of automatic initiation. Brief at 36-39. Essentially, OCRE argues that the exception in 10 CFR 9 50.62(c)(4) should not be applied to the PNPP SLCS because OCRE believes the cost is minimal. The Licensing Board, however, carefully addressed all i
the arguments advanced by OCRE, and properly rejected them as contrary to the intent of the rule. El The Board concluded that the Comission had decided that some reactors were exempt from the new rule, EI thereby indicating that this matter was not an issue of unresolved reactor safety, El and that the Comission did not, by promulgating the rule in terms of two classes of reactors, provide flexibility in backfitting. Given these determinations, the Board believed consideration of conversion costs for a specific reactor would frustrate the purpose of the rule to resolve issues generally, rather than on a case-by-
-87/ The Board reviewed OCRE's exposition of the history of the rule, noted OCRE's admission that an automatic system was not designed and built at PNPP and considered OCRE's argument for a flexible interpretation of the ATWS rule. LBP-84-40, pp. 1184-85. The Board rejected this argument stating the rule is clear that the exception was intended for reactors in advanced stages of construction. _I d .
88/ LBP-84-40, at 1188. The Board accepted OCRE's alleged conversion cost as true.
89/ Id. at 1188.
casebasis.9E Briefly put, the Licensing Board majority applied the rule according to its tenns, in accord with the established principle that the wording of .the regulation takes precedence over any possibly contradictory suggestion in its administrative history. Duke Power Co. et al. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 469 (1982), rev'd in part on other grounds, CLI-83-19, 17 NRC 1041 (1983). The 10 CFR s 50.62(c)(4) requirement for automatic initiation of the SLCS applies only to plants issued construction permits in 1984 or later, and those whose automatic initiation is already designed and built. There is no question that the construction permit for PNPP was issued prior to 1984, and OCRE's Brief demonstrates that the automatic system is not designed and built at PNPP since OCRE argues it should be installed. Consequently, OCRE's argu-ments about costs are simply irrelevant. The Licensing Board correctly interpreted the regulation in accord with Catawba, supra.
OCRE's assertion of delegation to the Staff of the interpretation and application of 9 50.62 for Unit 2 is equally unfounded. The Licensing Board's interpretation of the regulation is equally applicable to Unit 2 and may properly be left to Staff for implementation.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-811, 21 NRC 1622, 1629 (1985). There is no merit to OCRE's appeal of this decision and it should be denied.
-90/ The Board also found the record was not complete on conversion costs.
Id. at 1189-90. The dissenting opinion concluded that because supple-iiientary information published with the rule emphasized downtime costs, and because at that time PNPP would not incur downtime costs, the Commission had not considered situations such as PNPP, and consequently, it was for the Board to decide whether PNPP should be grandfathered. M.1193-94.
- c. The Licensing Board Correctly Granted Summary Disposition Of Issue 13 OCRE appeals the Licensing Board decision E/ which granted summary disposition of Issue 13, which alleged that turbine missile hazards would
. occur at PNPP. OCRE alleges error by the Board's (a) deferring resolution of the issue for three years (until a final program of inspection and maintenance of the turbine disks was developed), (b) basing the decision on allegedly unreliable evidence, (c) failing to provide additional discovery time as described in 10 CFR 9 2.749(c), (d) requiring an affidavit from OCRE contrary to the provision of 10 CFR 9 2.749(a) (resulting in OCRE's bearing the burden of proof), (e) refusing to reconsider its decision when substan-tive errors were discovered in the decision, and (f) improperly relying on a proposed revision to a regulatory guide. I_d . Brief at 40-47. There is no merit in OCRE's allegations of error for the following reasons.
The Licensing Board found summary disposition of Issue 13 appropriate because Staff's two part program for inspection of maintenance of turbine disks E/ was adequate, a rigorous risk standard was applied by Staff, the intervenors had provided no reason to question its adequacy and no issue of material fact was shown. El The decision considers an article proffered by OCP,E in opposition to the motion for summary disposition, which signifi-
-91/ LBP-83-46, 18 NRC 218 (1983) corrected before publication to include an order dated September 6, 1983.
-92/ This program was described in the SSER #3 for PNPP, Section 3.5.1.3.1.5.a. (April 1983). The program describes surveillance and maintenance to prevent turbine missiles.
-93/ LBP-83-46 at 220. The Board noted the Staff's program could be revised upon completion of the GE studies.
t cantly differed from another expert referenced in the SER in its estimate of the likelihood of development of turbine missiles, El but finds the (Heasler) article was apparently superseded by field research. Not having an affidavit by the author, the Board could not determine whether the author still held to his estimate of turbine missile generation rates, El and concluded that the unverified article submitted by OCRE did not raise a genuine issue of material fact. E The Board indicated acceptance of the article referenced in the SER El but actually relied for its decision on affidavits provided by Applicants' experts, which contained more data than either of the two articles in question. E I The Board explained the denial of OCRE's reauest for a continuance of summary disposition for six months as insupportable El since OCRE had had a
, year for discovery on this subject. From the above discussion it is clear that OCRE has mischaracterized the decision below.
The " deferral" alleged by OCRE refers to the Staff program for maintenance and inspection for turbine defects for those plants with
-94/ Id. at 221-22, referring to an article by Dr. Spencer Bush referenced In the SER #3, 9 3.
95/ Id. at 222.
. -96/ Id. at 223-224. The unpublished Heasler article, in draft fonn, Tddressed events during factory and preoperational tests, and not, therefore, entirely directed at operating reactor experience.
-97/ The referenced article, written by Dr. Spencer Bush, is entitled "A Reassessment of Turbine - Generator Failure Probability." See LBP-83-46 at 221, fn. 13.
98/ Id. at 225.
99/ Id. at 226. The Board also concluded the GE study could not raise a genuine issue of material fact since Applicants were bound by an inspection and maintenance program. Id.
. - - _ -- . . _ = . ..
turbines from manufacturers who have not submitted reports on turbine missile probabilities, 100/ and " interim" licensing was not considered by the decision. The Staff's program was clear at the time of the Board's decision, 101/ and was supported by the available data, 102/ which, along
, with the affidavits submitted by Applicants, authored by credible experts, formed reliable evidence for sumary disposition. Moreover, OCRE has not shown that a genuine issue of material fact existed concerning the issue so that summary disposition was in any way contrary to 10 CFR 6 2.749(d). The
. Board's denial of OCRE's request for six months additional discovery to await results of a study, only speculatively relevant to the contention, does not contravene 10 CFR S 2.749(c), 103/ since OCRE has not shown that any significant information could have been obtained from awaiting the General Electric study, nor indicated any affidavits which could have been obtained concerning the study. The Board did not require an affidavit from OCRE contrary to 10 CFR Q 2.749(a), but merely noted the dubious value of the unpublished article offered by OCRE without more information from the author. Finally, the Board did not place the burden of proof on OCRE but rather, carefully considered the unverified article submitted by OCRE in the light most favorable to OCRE. In sum, there is no error in the Board's 100/ At the time of issuance of the SER, General Electric and Westinghouse
, had not completed their reports. M.,pp.3-4 SSER #3, 3-5.
101/ SSER #3, pp. 3-1 to 3-10.
102/ M.
103/10 CFR 5 2.749(c) provides for continuance or denial of summary disposition motions where opponents demonstrate inability to obtain essential affidavits, at the time the motion is filed.
decision granting sumary disposition of Issue 13. OCRE's appeal of this decision should be denied.
- d. The Board Correctly Interpreted 10 CFR 6 50.49 And Properly Granted Sumary Disposition Of Issue 9 s OCRE challenges the Board's decision which granted sumary disposition of Issue 9 104/ on the grounds that the Board improperly interpreted 10 CFR 9 50.49; 105/ applied a " safety in the interim" standard; removed a material issue (concerning non-electrical polymer degradation) from hearing; assumed without basis, that seals and gaskets can become degraded without risk to safety; allowed evidence to be provided by post-sumary disposition affi-davits; and granted sumary disposition even though finding genuine issues of fact existed. Brief at 47-53. Again, OCRE's assertions are unsupported and insubstantial.
The Board carefully addressed the non-electrical polymer degradation question raised by OCRE 106/ but questioned whether this was significant to 104/ LBP-83-18, 17 NRC 501 (1983). Issue 9 alleged that the exposure of polymers to radiation during the operating history of Perry would cause unsafe conditions.
105/ OCRE asserts that an evaluation of dose-rate effects, in 10 CFR 9 50.49(e)(4), contradicts the Board's view. Brief at 48.
, 106/ LBP-83-18 at 505. The Board explicitly acknowledged that the " issue extends beyond the electrical use of polymers" and described the issues as (1) the extent to which 10 CFR S 50.49 precluded litigation of the issue, (2) whether OCRE had demonstrated a safety significance for non-electrical polymers (3) whether applicant had demonstrated that its plant could be safely operated pending completion of qualification of its electrical equipment (4) whether there is equipment at Perry that is exposed to sufficient radiation so that the dose-rate effects studied by Gillen and Clough are applicable to this plant, (5) the extent of applicants' obligation to complete an inspection and maintenance program for equipment with polymers, and (6) whether there is a genuine issue of fact concerning the safety of polymers from
" synergistic effects."
f
.m - , .. , ,, . .--
safety. 107/ The Board found that although 9 50.49(e)(4) includes consideration of dose-rate effects, compliance with the regulation was not required until November 30, 1985, 108/ so that 6 50.49 did not require full-scale equipment qualification until the effective date of the rule.
~
s The Board noted that non-electrical polymers were not encompassed by the rule, 109/ but found OCRE had not established that the non-electrical polymers at PNPP would create a safety problem.110/ The Board found the i
Applicants' evidence concerning dose-rate effects of degraded polymers, and qualification of equipment showed the only genuine issue of fact remaining was whether the inspection and maintenance program would be adequate, 111/
but later, upon reconsideration, found that since the inspection and j
maintenance program was not required to be submitted at that time, an affidavit committing Applicants to development of this program was sufficient. 112/
The Board did not apply a " safety in the interim standard"; it found no genuine issue of material fact remaining for litigation based on Applicants'
, evidence of effects of degraded polymers. 113/ Nor did OCRE's speculations 107/ M . at 505-06.
108/ M . at 506.
109/ M . at 507.
110/ M.
111/ M . at 506-511.
112/ Tr. 810-828. The Board modified the decision during a transcribed telephone conference concerning several motions and other matters. See Tr. 805-883, May 9, 1983.
113/ LBP-83-18 at 506-11.
l 1
i about non-electrical polymers or synergism raise a genuine issue. Finally, the post-hearing affidavit which committed Applicants to develop an inspection and maintenance program in accord with the regulations did not concern a genuine issue of material fact.
In sum, OCRE has not accurately
, described the decision below, has failed to show any error, and has not demonstrated a genuine issue of material fact existed. OCRE's appeal of this decision should be denied.
- e. The Board Correctly Interoreted 10 CFR 6 50.12(a) And Properly Denied OCRE's Motion To Reopen The Record To Admit A New Contention OCRE asserts error by the Board in its denial 114/ of OCRE's motion to reopen the record to admit a proposed contention challenging Applicants' post-hearing request for an exemption from one portion of 10 CFR Part 50, Appendix J. Brief at 54. OCRE asserts that 10 CFR 9 50.12(a) requires specific Congressional authority for exemptions from the regulations and that licenses can only be granted on unconditioned compliance with all Commission safety standards. Id. OCRE also complains that the Board failed to decide the question of 10 CFR 9 2.758 raised in OCRE's motion. OCRE Brief at 56. OCRE also, again, alleges the Board erred by deferring issues to the Staff for post hearing resolution. Brief at 57.
There is no merit to these allegations of error. The Board's Order correctly explained that 10 CFR Q 50.12(a) is a Commission regulation which allows exemptions where the required level of safety is maintained, and that, contrary to OCRE's view, 10 CFR 6 2.758 was not applicable since 114/ LBP-85-33, 22 NRC 442 (1985).
Applicants had not claimed Appendix J would not serve its purpose. 115/ The Board properly refuted OCRE's incorrect interpretation of Comission regulations.and found no basis for reopening the record, in accord with
~
Diablo Canyon, CLI-81-5, supra. Moreover, OCRE's claim of improper
, delegation of issues to Staff for post-hearing resolution is groundless since the issues litigated at hearing did not concern Applicants' requested exemption from Appendix J, and no issue on the exemption was ever properly admitted.
In sum, OCRE's allegations of error in the five interlocutory decisions, discussed above, are not supported by fact or law. Therefore, OCRE's appeal of the five prior Licensing Board decisions should be denied.
- 4. Summary On OCRE's Appeal 4
In Staff's view, OCRE has failed to show any reversible error in the 1
Concluding Partial Initial Decision, or in the five prior Licensing Board decisions which granted sumary disposition of three contentions and denied two motions to reopen the record. For the most part, OCRE raises questions ,
, not pertinent to the contentions and thus, not essential for decision. In
- so doing, OCRE has not even attempted to show that any of the decisions erred in the ultimate conclusions on the issues, but rather, that some evi-
. dence or argument advanced by OCRE was not interpreted in accord with OCRE's view. OCRE's appeals are wholly without merit. They should be denied.
l l 115/ Id. at 444-445. The Board referred to the Comission's proposed rule i
Eich would clarify the applicable standards for granting exemptions, i 50 Fed. _Re_g. 16506, and the Appeal Board's comments on the proposed ;
rule in PhTladelphia Electric Co. (Limerick Generating Station, Units 1 -
& 2) ALAB-809, 21 NRC 1605 (1985) M . '
, _ _ __ _ _ _ _ _ _ . _ ,__._.m...,-- . , _ _ _ . - , _ - _ , - . _ _ _ - , _ . - _ , . . _ _ _ . _ . _ . . _ _ _ . , - _ . , _ _ . , _ - _ - . _ - _ , _ ,
i i
B. THE APPEAL BY SUNFLOWER ALLIANCE Emergency Planning The appeal by Sunflower addresses two oecisions by the Licensing Board concerning emergency planning issues. Sunflower first challenges the j , Licensing Board decision which rejected 20 of 38 emergency plan issues submitted by Sunflower to particularize the general emergency planning i Issue #1, admitted in 1981. 116/ Second, Sunflower challenges the Concluding PID on emergency plan issues. 117/
l
- 1. The Licensing Board Properly Rejected Twenty Emergency Plan Contentions for Litigation '
Sunflower asserts, without explaining, error by the Licensing Board in its Memorandum and Order dated January 10, 1985 (unpublished) as a
" procedurally irregular use of a Motion to Dismiss" to screen contentions.
Sunflower Brief at 1. Sunflower argues that the Licensing Board erred by 1
i allowing Applicants to argue the sufficiency of the issues for litigation in a motion to dismiss, and that the Board should have established a schedule i
- for either sumary disposition or hearing of the 38 contentions proffered by l 116/ In July 1984 the Licensing Board directed Sunflower to particularize Issue #1. LBP-84-28, 20 NRC 129. This issue was admitted to the
- proceeding in 1981 prior to the development of onsite and offsite
. emergency plans, with direction from the Board that the contention could be refined into discrete issues when the emergency plans were i formulated. LBP-81-24, 14 NRC 175, 189-90 (1981); LBP-81-35, 14 NRC l 682,686(1981). Sunflower submitted 38 particularized emergency planning issues on August 20,1984 (" Sunflower Alliances Particularized Objections to Proposed Emergency Plans in Support of Issue No.1") and i on September 20, 1984 Applicants filed a motion to dismiss tie emergency plan issue for failure to provide the spccificity and bases necessary to raise a litigable issue. This motion was supported by i Staff. The Board admitted 18 issues and rejected 20 issues, in an
- unpublished Memorandum and Order, dated January 10, 1985.
j 117/ LBP-85-35, 22 NRC 514 (1985).
Sunflower. Sunflower Brief at 2. However, contrary to the requirements for appellate briefs, no reference to any rule of practice or caselaw is provided by. Sunflower in support of this allegation and the ground for this theory is not apparent. 118/ Sunflower then proceeds, again without explanation, to reargue the merits of those contentions II9/ rejected by the Pemorandum and Order. Sunflower Brief at 2-14 Sunflower makes no mention of the reasons for rejecting the contentions set out in the Order, which were, that the contentions (1) raised issues beyond the requirements of the regulations, (2) sought an improper forum, (3) provided inadequate bases for litigation, (4) were vague and unspecified or (5) raised issues beyond the
! scope of the emergency plan issue. 120/ Since Sunflower does not claim that i
the Licensing Board erred in the reasons for rejecting these issues, it is entirely unclear just what procedural irregularity Sunflower suggests. The I
Licensing Board's rejection of the contentions which failed to meet the requirements for litigable issues was based on the Comission's rule of 118/ An appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided. 10 CFR 5 2.762(d)(1). The minimal i requirement for appellate briefs is identification of the particular j error addressed and the precise portion of the record alleged
, erroneous. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, 1
, Units 1 and 2), ALAB-739, 18 NRC 335, 338 n.4 (1983), citing, 10 CFR s 2.762(a). Cf., Public Service Electric and Gas Co. (Salem Nuclear
! Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49-50 (1981),
aff'd sub nom. Township of Lower Alloways Creek v. Public Service Electric and Gas Co., 687 F.2d 732 (3d Cir. 1982).
119/ The subjects described in subsections "b" to "s" of Sunflower's Brief, (pp. 2-13), are the designations of contentions D, E, F, K, L, N, R, S, T, V, W, X, Y, AA, EE, FF, HH, II, KK and LL in " Sunflower Alliance's Particularized Objections to Proposed Emergency Plans in Support of Issue No. 1" submitted August 20, 1984.
120/ Memorandum and Order, supra, pp. 8-9.
I I
. - __ _ _ = _ . . _ __ _ _ _ __
(
practice, 10 CFR 9 2.714(b). This standard was explained by the Board in its Order for particularization.121/ Applicants' motion to dismiss the contentions.for failure to comply with 9 2.714(b), was procedurally ,
~
permissible, and the Board's rejection of Sunflower's unlitigable a contentions was in accord with the Commission's Rules of Practice and established principles for admissibility of issues.
Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2
, and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
) In Staff's view, Sunflower's unsupported and unexplained allegations regarding the rejected contentions are so unclear as to prevent proper
. response or disposition of the issues, whereas under the Comission's Rules, j a party's failure to submit a brief containing sufficient information and argument to allow the appellate tribunal to make an intelligent disposition of the issues raised by its exceptions is tantamount to their abandonment.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2) ALAB-355, 4 NRC 397, 413 (1976), Cf. Consumers Power Co. (Midland Plant, Units 1 and 2),
4 ALAB-270, 1 NRC 473 (1975). In any event, there is i.o basis for Sunflower's claim of procedural irregularity. The Licensing Board properly denied the admission of contentions which were inadmissible under the Rules of Practice and NRC caselaw. Sunflower's appeal to the contrary is without merit.
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121/ The Board required specification of contentions in accord with 9 2.714(b) after the emergency plans were developed. LBP-84-28, 20 NRC 129,131(1984).
- 2. The Licensing Board Correctly Decided The Emergency Plan Issues On The Preponderance Of The Evidence Sunflower's second point of appeal asserts that the PID erroneously found in favor of Applicants regarding offsite emergency preparations, but provides not a single reference to any part of the PID perceived by Sunflower to be in error. Sunflower Brief, pp.15-26. Sunflower makes nurrerous references to the hearing record, but does not attempt to demon-strate the relevancy of the citations to any alleged error in the Board's Findings of Fact or Conclusions of Law on the issues. Again, it appears that Sunflower has so failed to comply with the provisions of 10 CFR 9 2.762(d) that proper disposition of the appeal cannot be made. Catawba, supra. Nevertheless, the following discussion attempts to address Sunflower's unspecified allegations of error in the PID.
Sunflower asserts in regard to Contention A 122/ -that Applicants' witness had no commentary from a nearby (Geauga) county engineer 123/ or "signoff" from the DSA Director concerning evacuation time estimates (ETE) in the emergency plan, and that only concurrences, rather than comments were sought of local officials, contrary to NUREG-0654, Appendix 4. Sunflower Brief at 15-16. Contrary to this allegation, the Board found the evidence showed sufficient comments on the ETE had been provided by officials of the
. three counties near PNPP, and that no requirement exists in NUREG-0654 for comments by the specific local officials described by Sunflower. PID at 4-6, 76, Findings 5-7. Sunflower's argument regarding comments on the ETE 122/ Contention A states: " Evacuation time estimates (ETE) have not been reviewed by State or Local Organizations."
123/ The three counties surrounding the PNPP site are Lake, Geauga, and Ashtabula. PID p. 76 (Finding 3).
by county engineers and specific officials is simply wrong. The PID correctly decided Contention A.
Sunflower asserts, in regard to Contenton M,124/ that(a) monitoring is not provided for Lake Erie by the emergency plans, (b) Applicants'
, witness failed to account for costs of TLDs surrounding PNPP, (c) Appli-cants' testimony concerning the superior capability of mobile monitoring teams over fixed monitors is incorrect, (d) delay in monitoring was not accounted for, and (e) Ohio DSA monitoring is questionable. Sunflower Brief, pp. 16-20. Additionally, Sunflower asserts that Applicants wish to prevent access by public officials to information about releases of routine radiation from PNPP and that releases at Three Mile Island Nuclear Station created increased infant mortality. 125/ Sunflower Brief at 20. Again, Sunflower's meaning is entirely unclear since no attempt is made to explain how these items show error in the decision on Contention M. 126/
The PID regarding Contention M sets out the evidence and pertinent regulations concerning offsite monitoring. PID pp. 79-81, Findings 18-34.
The Board found monitoring of Lake Erie can be performed by the U.S. Depart-ment of Energy (Finding 32); mobile monitoring teams have the capability of moving to the center of the radioactive plume to monitor radiation, whereas 124/ Sunflower does not allege error concerning Contention J, but simply states that Sunflower may file a late contention on this issue.
Sunflower Brief at 16. Contention M states: " Independent Data Monitoring Systems should be installed within all counties in the Emergency Planning Zone".
125/ Citing Sunflower's witness, Dr. Ernest Sternglass, prefiled testimony at 9, 11.
126/ Sunflower's record references (generally, Tr. 2902-04, 2923, 2925, 2928-32,2935,2939,2943-45,2847-78) are not helpful in discerning the alleged error.
the fixed monitors deemed necessary by Sunflower do not (Findings 24-25);
monitoring can be performed by a local Ohio DSA representative, Lake County and CEI until State and Federal monitoring teams finally arrive at the PNPP site, (Findings 27-33); and the capability of Ohio monitoring teams has been
, demonstrated during eight emergency planning exercises without significant deficiencies ( Finding 29). Finally, the Board found the testimony of Sunflower's witness, Dr. Sternglass, unreliable based on significant impeaching evidence introduced on the record. PID at 10. Most importantly, the Board found there is no regulation requiring each jurisdiction within the EPZ to have independent fixed monitoring systems. PID at 79, Finding
- 22. Clearly, Sunflower has not raised any matter which could be construed as error in the PID on the radiological monitoring issue.
In regard to Contention P, 127/ Sunflower claims, without supporting reference or further explanation, that the Licensing Board interpreted the recent GUARD decision 128/ to convert the inquiry called for in Contention P to a requirement for full details of medical arrangements for "each facil-ity" included in emergency preparations, and that Applicants failed to comply with that requirement but, instead, sought to minimize the pos-sibility of a serious accident at PNPP. Brief at 21-22. In support of 127/ Contention P asserted " Emergency plans are deficient with respect to hospital designations and medical services as well as procedures required to assist contaminated individuals."
128/ GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985). This decision overturned the Comission's determination in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 283) CLI-83-10, 17 NRC 528, 530(1983), that a listing of hospitals is sufficient to satisfy the ,
requirements of 10 CFR 50.47(b)(12). '
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this confusing theory, Sunflower references an affidavit filed on the record 129/
concerning lack of a lead-lined examination room or proper ventilation at one county hospital, and effects of high levels of radiation exposures.
Sunflower also raises questions about plans for transfer of radiological patients, Sunflower's testimony concerning pulmonary edema, adequate treat-ment of mass casualties, and an alleged need for health physicists at local hospitals. Sunflower then concludes, without reference to the PID or its evidentiary basis, that Applicants provided no substantive evidence for arrangements of medical services for radiological victims other than a list-ing of facilities. Sunflower Brief at 21-23. Sunflower also argues against Applicants' testimony concerning the appropriate source term for use in emergency planning. Sunflower Brief at 23.
The evidentiary record reflected in the PID refutes entirely Sunflower's vague, confusing assertions. The Board found the Applicants' evidence demonstrated that the arrangements made for medical services for contaminated individuals in hospitals near PNPP meet the requirements of 10 CFR f 50.47(b)(12). .PID at 15. The only reference to the GUARD decision by the Board was a requirement for the Applicants to comply with any addi-tional requirements imposed by the Commission in response to GUARD. M. In support of its decision on this issue, the Board found that the four nearby county hospitals have equipment and trained personnel sufficient to handle contaminated injured individuals (PID at 81-82, Findings 36, 38, 40); equip-ment for diagnosis of radiation overexposure is available at the four county hospitals (PID at 83, Finding 43); twenty-six hospitals in counties around 129/ Intervenors presented an affidavit of Dr. McTrusty from the Ashtabula Medical Center which was admitted to the record at Tr. ff. 3149.
the EPZ are capable of dealing with radiation victims, including mass casualties (PID at 81-82, Finding 39); and that the Ohio emergency plan provides for sixty-five ambulances for transportation of radiological victims. PID at 83, Finding 44. Moreover, the Board found the large number of potential accident victims asserted in a Sandia National Laboratory Study (NUREG/CR 2239) referenced by Sunflower, to be inapplicable to the PNPP.
PID at 83, Findings 45-46. Finally, the Board found the evidence of adequate arrangements for medical services presented by Applicants and Staff to be unchallenged and credible. PID at 15. Sunflower's unsupported questions and references to portions of the transcript do not show error in l the PID regarding Contention P.
Sunflower's assertions concerning Contentions Q, 1 0/ U, 131/ Z, 132/
and BB 133/ also do not acknowledge the issuance of the PID or its contents.
Sunflower Brief at 24-26. Sunflower merely restates matters discussed at hearing and makes no attempt to show any relevancy of the record references to Sunflower's general, unspecified assertion of error in the PID.
In fact, the Board.fourd that letters of agreement for use of school buses during an emergency at PNPP were being obtained by Applicants, but made completion of this matter a condition of full power licensing. PID at 130/ Contention Q asserts that no letters of agreement for use of school buses during emergency were obtained.
131/ Contention U challenges the means and facilities for handling ;
contaminated property at reception centers.
132/ Contention Z asserts the emergency plans provide inadequate decontamination protection for emergency bus drivers.
133/ Contention BB refers to deficiencies identified in FEMA's 1984 Interim Report.
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16, 83-84, Findings 47-52, and at 123, Condition 2. Thus, Contention Q was fully resolved in the PID contrary to Sunflower's assertions. Similarly the Board found. the arrangements for decontamination of property at reception t
centers were not complete and also made this matter a condition of :
i licensing. PID at 17, 84-85, Findings 53-58; 123, Condition 3.
Consequently, the Board also resolved the matters described as inccmplete in Sunflower's Brief concerning Contention U.
Sunflower's challenge to the credibility of Applicants' witness on protection for bus drivers in connection with Contention Z, makes no mention of the evidence concerning exposures likely for bus drivers nor the applicable regulatory guidance, and, consequently does not challenge the Board's finding that adequate protection is provided for bus drivers. PID at 18-19, 85-86, Findings 59-62.
Finally, in regard to Contention BB, Sunflower again merely recites matters discussed at hearing and omits any reference to the Board's finding ,
that most of the deficiencies described in FEMA's Interim Report were resolved, and those unresolved were not of the significance to suggest the emergency plans for PNPP are inadequate. PID at 19-20, 86-87, Findings 63-68.
In sumary, Sunflower makes only vague complaints concerning some of the evidence deemed inadequate by Sunflower without reference to other
. relevant evidence or to any portion of the PID or its evidentiary basis.
Without explanation of how Sunflower's assertions support its general claim i of error by the Licensing Board, a more specific response cannot be made.
Indeed, even if all Sunflower's characterizations of the record were assumed i
to be true, it is nevertheless, not apparent how these assertions affect the validity of the Board's decision on any issue. Appellants must demonstrate l l
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the error was significant to the outcome of the proceeding. Shoreham, ALAB-788, supra, 20 NRC at 1151. But Sunflower has made no attempt to identify any errors of fact or law whatsoever in the PID. The PID is based on reliable and substantial evidence concerning the emergency plan issues, f
There is no merit to Sunflower's appeal and it should be rejected.
L V. CONCLUSION Both OCRE and Sunflower have failed to show any error of fact or law in the Concluding Partial Initial Decision which could affect the ultimate 2
conclusion on any issue. Similarly, OCRE and Sunflower have failed to show error in the earlier Licensing Board decisions challenged on appeal, or any prejudice or injury resulting from the decisions. The decisions and rulings which are the subject of these appeals should be affirmed.
Respectfully su itted, Colleen P. Woodhead Counsel for NRC Staff ,
Dated at Bethesda, Maryland this 6th day of December,1965 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
CLEVELAND ELECTRIC ILLUMINATING Docket No. 50-440 OL COMPANY, ET AL. ) 50-441 OL (Perry Nuclear Power Plant, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPEALS FILED BY OHIO CITIZENS FOR RESPONSIBLE ENERGY AND BY SUNFLOWER ALLIANCE, INC. OF THE C0fCLUDING PARTIAL INITIAL DECISION ON ISSUES #1, #8 AND #16 AND SIX PRIOR DECISIONS" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comis-sion's internal mail system, this 6th day of December,1985:
- Dr. Jerry R. Kline
- James P. Gleason, Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Comission Silver Spring, MD 20901 Washington, DC 20555
- Mr. Glenn 0. Bright Donald T. Ezzone, Esq.
Administrative Judge Assistant Prosecuting Attorney Atomic Safety and Licensing Board 105 Fain Street U.S. Nuclear Pegulatory Comission Lake County Administration Center Washington, DC 20555 Painesville, OH 44077
. Jay Silberg, Esq. Susan Hiatt Shaw, Pittman, Potts and Trowbridge 8275 Munson Road 1800 M Street, NW Mentor, OH 44060 Washington, DC 20036
- Atomic Safety and Licensing Board Terry J. Lodge, Esq.
U.S. Nuclear Regulatory Comission 618 N. Michigan Street, Suite 105 Washington, DC 20555 Toledo, OH 43624 John G. Cardinal Esq. Janine Migden, Esq.
Prosecuting Attorney Ohio Office of Consumers Counsel Ashbabula County Courthouse 137 E. State Street l Jefferson, OH 44047 Columbus, OH 43215 l
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- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555
- Docketing a Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 91 Colleen P. Woodhead Counsel for NRC Staff e