ML20138A859

Brief Opposing Intervenor Appeal from Partial Initial Decision on Emergency Planning & Safety Contentions.W/ Certificate of Svc

ML20138A859
Person / Time
Site:	Harris
Issue date:	03/17/1986
From:	Baxter T, Oneill J CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#186-435 OL, NUDOCS 8603200151
Download: ML20138A859 (81)

Text

n UNITED STATES OF AMERICA 'k[N C U NUCLEAR REGULATORY COMMISSION M MR 18 P1 :21 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD hg[CF'.u;,.,

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CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON EMERGENCY PLANNING AND SAFETY CONTENTIONS Thomas A. Baxter, P.C.

John H. O'Neill, Jr., P.C.

Delissa A. Ridgway Pamela H. Anderson SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY

! Counsel for Applicants March 17, 198G O

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'^i -UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION 16 . NW 18 P1 :21 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD C C'F E E '.rt . .. - ,

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In the Matter of ) BRANCH

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CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON EMERGENCY PLANNING AND SAFETY CONTENTIONS Thomas A. Baxter, P.C.

John H. O'Neill, Jr., P.C.

Delissa A. Ridgway Pamela H. Anderson SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Dale E. Hollar

, CAROLINA POWER & LIGHT COMPANY Counsel for Applicants March 17, 1986 O

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') TABLE OF CONTENTS Page TABLE OF AUTHORITIES....................................... 111 COUNTERSTATEMENT OF THE CASE................................. 1 ARGUMENT..................................................... 4 I. Mr. Eddleman May Not Appeal on His Own

-Behalf, or as a Representative of Other Parties, Licensing Board Rulings on Con-tentions Advanced by Other Parties...................... 4 II. The Licensing Board Did Not Err in Its Decisions, Based Upon the Record Compiled at Evidentiary Hearings, Resolving Eddleman Contentions 57-C-10, 116 and 41, and Joint Contention VII(4), in Applicants' Favor................. 9 A. Eddleman Contention 57-C-10:

Protection Factors................................. 9 B. Eddleman Contention 116: Fire Protection........................................ 11 C. Eddleman Contention 41: Pipe Hanger Welding........................................... 19 D. Joint Intervenor Contention VII(4):

Steam Generator Tube Rupture Analysis............. 21 III. The Licensing Board Did Not Err and Applied The Correct Legal Standard in Dismissing Eddleman Contention 30 on Applicants' Motion for Summary Disposition............................................ 26 IV. The Licensing Board Did Not Err in its Rulings Rejecting Various Proposed Contentions As Inadmissible............................ 30 A. Introduction...................................... 30 B. Eddleman 41-G..................................... 33

1. Introduction................................. 33

2. The Appeal of Eddleman 41-G Is Untimely..................................... 36 O

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(~) '3. The Licensing Board Properly Dismissed b^ .Eddleman 41-G................................ 37 C. Emergency Planning Joint Contention 1............. 45 D. ' CHANGE Contentions 20 and 21...................... 48 E. CHANGE Contention 4............................... 50 F. CHANGE Contention 9............................... 52 G. Wilson Contentions 3 and 4........................ 53 H. Wilson Contentions 5(b), (c), (d) and (e)......... 54 I. Eddleman Contention 57-C-7 and CHANGE Contention 33..................................... 55 J. Contentions Wilson 1, CHANGE 23, Eddleman 57-C and 57-C-2................................... 60 K. Eddleman Proposed Contentions 57-D-1, 2 and 3..... 63 L. Eddleman Contentions EPX-4, 9, 10 and 11.......... 64

1. Introduction................................. 64

2. Standard Applicable to Proposed Exercise Contentions......................... 65

3. The Contentions.............................. 68 CONCLUSION.................................................. 70 0 l l

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. TABLE OF AUTHORITIES (v^3 Cases: Page(s)

Carolina Power & Light Company (Shearon Harris Nuclear Power Plant),

LBP-82-119A, 16 N.R.C. 2069 (1982)...................... 4 LBP-84-29B, 20 N.R.C. 389 (1984)............ 5,45,46,54,56 LBP-85-5, 21 N.R.C. 410 (1985).......................... 2 LBP-85-27A, 22 N.R.C. 207 (1985)................. 27-29,47 LBP-85-28, 22 N.R.C. 232 (1985)...................... 2,36 LBP-85-49, 22 N.R.C. (Dec. 11, 1985)........... passim Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 N.R.C.

490 (1985)............................................. 20 Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-226, 8 A.E.C. 381 (1974).................. 62 Consolidated Edison Company (Indian Point Station, Unit No. 2), CLI-74-23, 7 A.E.C. 947 (1974)........ 12,13,16,17 Consolidated Edison Company of New York (Indian Point, Unit No. 2), LBP-82-25, 15 N.R.C. 715 (1982)............ 7 The Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2),

ALAB-707, 16 N.R.C. 1760 (1982)........................ 38 ALAB-730, 17 N.R.C. 1057 (1983)........................ 63 Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-768, 19 N.R.C. 988 (1984)......... 68 GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985).......... 29,55-59 Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Unit No. 1),

ALAB-631, 13 N.R.C. 87 (1981)........................... 6 ALAB-671, 15 N.R.C. 508 (1982)......................... 43 Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-424, 6 N.R.C. 122 (1977).................................................. 3 0 -111-

I'd Long Island Lighting Company

\/. (Shoreham Nuclear. Power Station, Unit 1),

LBP-83-57, 18 N.R.C. 445 (1983)........................ 17 ALAB-788, 20 N.R.C. 1102 (1984)..................... 17,18 LBP-84-53, 20 N.R.C. 1531 (1984).................... 13,18 Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C.

1076 (1983)...................................... 13,51',52 Metropolitan Edison Company (Three Mile Island Nuclear Generating Station, Unit 1), ALAB-698, 16 N.R.C.

1290 (1983)............................................ 29 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A.E.C. 423 (1973).............................................. 49,64 l Northern States Power Company (Prairie Island Nuclear Generating Station, Units 1 and 2),

ALAB-244, 8 A.E.C. 857 (1974), pet. reconsideration denied, ALAB-252, 8 A.E.C. 1175 (1975).................. 6 ALAB-252, 8 A.E.C. 1175 (1975), aff'd, CLI-75-1, 1 N.R.C. 1 (1975)....................................... 6 Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 N.R.C. 273 (1975).................. 37 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 N.R.C.

819 (1984).......................................... 51,61 Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),

ALAB-765, 19 N.R.C. 645 (1984)......................... 49 LBP-84-31, 20 N.R.C. 446 (1984), aff'd, ALAB-819, 22 N.R.C. 681 (1985)................................... 18 ALAB-819, 22 N.R.C. 681 (1985)......................... 52 Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79 ( 19 7 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 9 I

Project Management Corporation (Clinch River Breeder Reactor Plant), ALAB-345, 4 N.R.C. 212 (1976)........... 6 O -iv-

Public Service Company of Indiana (Marble Hill Nuclear f'S

# Generating Station, Units 1 and 2), ALAB-459, 7 N.R.C. 179 (1978).................................... 46 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-422, 6 N.R.C. 33 (1977), aff'd, CLI-78-1, 7 N.R.C. 1 (1978), aff'd sub nom., New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978)................................ 24 LBP-82-106, 16 N.R.C. 1649 (1982)...................... 67 South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1),

ALAB-642, 13 N.R.C. 881 (1981), aff'd sub nom.,

Fairfield United Action v. NRC, 679 F.2d 261 (D.C. Cir. 1982).................................... 42,43 ALAB-663, 14 N.R.C. 1140 (1981)........................ 43 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 N.R.C. 528 (1983)............................. 55,56,58 Toledo Edison Company (Davis-Besse Nuclear Power Station),

ALAB-157, 6 A.E.C. 858 (1973)........................... 6 Union Electric Company (Callaway Plant, Unit 1),

ALAB-740, 18 N.R.C. 343 (1983)......................... 24 ALAB-754, 18 N.R.C. 1333 (1983)........................ 52 Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, 735 F.2d 1437 (D.C. Cir. 1984), cert.

denied, 105 S. Ct. 815 (1985).............. 18,32,51,52,66 Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978)................................................. 62 Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C. 1167 (1983)..... 38,42 Regulations:

10 C.F.R. $ 2.713(b)......................................... 7 10 C.F.R. $ 2.714(a)(1)(1).................................. 69 10 C.F.R. $ 2.714(a)(1)(1)-(v).............................. 37 O -v-l

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i 2.714a(b)........................................ 6

(]) 10 C.F.R. I 10 C.F.R. 5 2.714(b)........................................ 49 10 C.F.R. 5 2.749(d)........................................ 27 10 C.F.R. $ 2.751a(d)....................................... 46 10 C.r.R. 5 2.752(c)........................................ 46 10 C.F.R. I'2.758........................................... 61 10 C.F.R. 5 2.762(c)......................................... 1 10 C.F.R. 5 2.762(d)(1)................................ 3,15,26 10 C.F.R. $ 50.47........................................... 67 10 C.F.R. 5 50.47(a)(1)..................................... 67 10 C.F.R. $ 50.47(b)(7)..................................... 55 10 C.F.R. 5 50.47(b)(10).................................... 63 10 C.F.R. $ 50.47(b)(12)................................. 55,69 10 C.F.R. $ 50.47(c)(2).................................. 60,61 Miscellaneous:

47 Fec. Reg. 30232 (1982)................................... 67 50 Fed. Reg. 19323 (1985)................................ 51,52 50 Fed. Reg. 20892 (1985)................................... 55 50 Fed. Reg. 30258 (1985)................................... 52 Report of Investigation, Shearon Harris Nuclear Plant: Alleged Harassment / Intimidation and Falsification of Documentation Commitments, Case No. 2-84-021, Office of Investigations, United States Nuclear Regulatory Commission, May 16, 1985........................................... 44 NUREG-0654, FEMA-REP-1/Rev. 1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," November, 1980................................................ passim O -vi-

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(~T March 17, 1986 V

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power .)

Plant) )

j APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE i PARTIAL INITIAL DECISION ON EMERGENCY PLANNING AND SAFETY CONTENTIONS l

! COUNTERSTATEMENT OF THE CASE i

On December 11, 1985, the Atomic Safety and Licensing Board's Partial Initial Decision on Emergency Planning and Safety Contentions was served upon the parties to this proceed-ing. See Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), LBP-85-49, 22 N.R.C. (Dec. 11, 1985). On December 23, 1985, intervenor Wells Eddleman filed

" Notice of Appeal by Wells Eddleman and by the Emergency Plan-ning Joint Intervenors." On January 30, 1986, Mr. Eddleman filed " Appeal from Partial Initial Decision on Emergency Plan-

ning Contentions" (cited hereafter as "Intervenors' Brief").

! Pursuant to 10 C.F.R. $ 2.762(c), Carolina Power & Light 1 l

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' Company and North Carolina Eastern Municipal Power Agency

(" Applicants"), file this brief in reply and opposition to the appeal.

LBP-85-49 is the third partial initial decision issued by the Licensing Board in this operating license proceeding. Ap-peals are pending before the Atomic Safety and Licensing Appeal Board from the Partial Initial Decision on Environmental Con-tentions, LBP-85-5, 21 N.R.C. 410 (1985), and from the Partial Initial Decision on Safety Contentions, LBP-85-28, 22 N.R.C.

232 (1985). LBP-85-49 resolves three safety contentions that f

were heard in 1984, and all but three emergency planning con-tentions. "The Decision also has the effect of making other dispositive Board rulings on emergency planning contentions --

i.e., rulings granting summary disposition motions or rejecting proposed contentions -- ripe for appellate review." LBP-85-49, supra, slip op. at 1-2.

Only four contentions are pending before the Licensing Board. Hearings on one late safety contention, CCNC Contention WB-3 (Drug Abuse During Construction), were completed on November 12, 1985, and proposed findings have been filed by the parties. Hearings on one emergency planning contention were completed on March 5, 1986; and two late emergency planning contentions are before the Licensing Board on Applicants' mo-tions for summary disposition.

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l Since the order of argument presentation in Intervenors' Brief follows no apparent logic, Applicants do not follow it in reply.1/ Section I of Applicants' argument below challenges Mr. Eddleman's attempt to present an appeal on behalf of other parties.Section II replies to the appeals which challenge Li-J censing Board decisions on contentions which went to hearing.

Section III responds to the appeal from the grant of motions for summary disposition, while Section IV replies to the ap-peals from Licensing Board decisions rejecting proposed contentions at the pleading stage.

1 1/ Intervenors' Brief is disorganized, seriously deficient in references to the Licensing Board decisions being challenged, in references to the record in support of claims of error, and in argument which explains the appeal in an understandable fashion. The effort appears to be hurried and half-hearted, and fails to conform to the requirements of 10 C.F.R. 5 2.762(d)(1). See Applicants' Motion to Strike a Portion of Intervenors' Brief on Appeal from the Partial Initial Decision on Safety Contentions, dated October 28, 1985, and authoritles cited therein. Parts of Intervenors' Brief resemble the old

" exceptions" more than an appellate brief. See Intervenors'

Brief at 4 (CHANGE 9, 21; Wilson 3, 4 and 5) and 5 (Eddleman 57-D-1, 2 and 3). It is the responsibility ultimately of the Appeal Board, not the parties, to police compliance with Com-mission briefing requirements. Cf. Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-424, 6 N.R.C. 122, 125 (1977) (time limits for filing briefs) . By now, the intervenors have been alerted to these requirements.

Yet they choose to ignore them to an increasing degree with each appeal. In this nine-page "brief," Mr. Eddleman attempts to obtain unfocused appellate review of dozens of Licensing Board decisions, each of which is of substantial importance to Applicants at this stage of the proceeding. The skeletal na-ture of Intervenors' Brief has made it very difficult for Applicants to direct their arguments in reply to anything nar-rower than a complete defense of each Licensing Board ruling, many of which are complex. In order to ensure that we have not overlooked issues of interest to the Appeal Board -- if it un-dertakes review of all of these decisions -- Applicants must refer frequently to the more complete pleadings filed below.

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ARGUMENT I. 1hr. Eddleman May Not Appeal on His Own Behalf, or as a Representative of other Parties, Licensing l Board Rulings on Contentions Advanced by other Parties I

Intervenors' Brief is signed by Wells Eddleman "Intervenor 1

pro se For himself and the Joint Intervenors and the Emergency i

j. Planning Joint Intervenors." Intervenors' Brief at 9. The i " Joint Intervenors," who advanced certain environmental and i safety contentions on a consolidated basis, are Chapel Hill i

Anti-Nuclear. Group Effort (" CHANGE"), Conservation Council of i

North Carolina ("CCNC"), Kudzu Alliance and Mr. Eddleman. Id.

at 1; Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C. 2069, 2075-78 (1982). Since Mr. Eddleman is one of the sponsors of i Joint Contention VII(4) (Steam Generator Tube Failure Analy-

! ses), he may appeal the Licensing Board's decision in Appli-cants' favor following an evidentiary hearing. See Interve-nors' Brief at 9.

i Mr. Eddleman may not, however, appeal from Licensing Board I

decisions rejecting emergency planning contentions proposed l

4 solely by other parties. Contrary to the implication in Inter-l venors' eriel, there is no association or organization entitled i

" Emergency Planning Joint Intervenors," through which Mr.

Eddleman has been, or may be, authorized to represent interve-nors CHANGE, CCNC, and Dr. Richard Wilson. See id. at 1.

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Emergency planning contentions were proposed separately by O, each involved intervenor, and there was no submission by the intervenors of any consolidated joint contentions.2/ Faced with a number of overlapping proposed contentions, the Licens-ing Board consolidated several into " Emergency Planning Joint (EPJ) Contentions," and identified for each EPJ contention the sponsoring intervenors (which varied from contention to conten-tioa) and the sponsoring.intervenors' proposed contentions which were superseded by each EPJ contention. Carolina Power &

Light Company (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-84-29B, 20 N.R.C. 389, 420-22 (1984). On appeal, the 1

only EPJ contention addressed is EPJ-1. Intervenors' Brief at

3. The sponsors of EPJ-l are CHANGE, Dr. Wilson and CCNC --

but not Mr. Eddleman. LBP-84-29B, supra, 20 N.R.C. at 422 (1984).

i Mr. Eddleman also purports to appeal from Licensing Board rulings rejecting CHANGE proposed Contentions 4, 9, 20, 21, 23 and 33, and Dr. Wilson's proposed Contentions 1, 3, 4 and 5(b)(c)(d) and (e). Intervenors' Brief at 3-5.

Mr. Eddleman has no standing, and is not otherwise autho-rized, to appeal from Licensing Board rulings on the CHANGE and Wilson proposed contentions, or on EPJ-1. A party to a 2/ Some of the intervenors agreed that there were some sub-ject areas in common among their proposed contentions, but did not submit a text for a consolidated contention. Tr. 818.

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proceeding before a licensing board has no standing to press  !

[b ss before the Appeal Board the grievances of other parties to the proceeding not represented by him. Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Unit No. 1),

'ALAB-631, 13 N.R.C. 87, 89 (1981). Neither is a party entitled to complain himself of a licensing board ruling unless and until that ruling has worked a concrete injury to his personal interests. Id.; Northern States Power Company (Prairie Island Nuclear Generating Station, Units 1 and 2), ALAB-252, 8 A.E.C. 1175, 1177 (1975), aff'd, CLI-75-1, 1 N.R.C. 1 (1975); Toledo Edison Company (Davis-Besse Nuclear Power Station), ALAB-157, 6 A.E.C. 858, 859 (1973).

Mr. Eddleman has attempted no showing that he has been in-jured by the rejection of contentions he did not propose.3/

Neither may he represent the other parties on appeal. A person 3/ In Northern States Power Company (Prairie Island Nuclear Generating Station, Units 1 and 2), ALAB-244, 8 A.E.C. 857, 863

, (1974), pet. reconsideration denied, ALAB-252, supra, the Ap-I peal Board appears to hold that an intervenor may seek appel-late redress of asserted licensing board error with respect to another intervenor's contention resolved through an evidentiary hearing. That decision did not reach, however, the appeal of rejected proposed contentions of another party. To the extent that ALAB-244 has not been clarified by later decisions, Appli-cants assume the Appeal Board did not mean to endorse the scatter-shot attempt here by Mr. Eddleman to obtain appellate i

review on matters in which he did not participate in any way before the Licensing Board. Cf. 10 C.F.R. $ 2.714a(b) (where intervention petition is denied, the petitioner, not any party, may appeal on the question whether the petition should have been granted in whole or in part); Project Management Corpora-tion (Clinch River Breeder Reactor Plant), ALAB-345, 4 N.R.C.

212 (1976).

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may appear'in an adjudication on his or her own behalf or by an

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k' attorney-at-law. 10 C.F.R. $ 2.713(b). Likewise, a partner-ship, corporation or unincorporated association may be repre-

.sented by a duly authorized member or officer,4/ or by an attorney-at-law. Id. Section 2.713(b) has been read to pro-hibit representation by a person who is not an attorney, except to the extent such person is a representative of a partnership, corporation, or unincorporated association. Consolidated Edison Company of New York (Indian Point, Unit No. 2),

LBP-82-25, 15 N.R.C. 715, 726 (1982).

Pursuant to section 2.713(b), Dr. Richard Wilson has rep-resented himself in this proceeding. Mr. Eddleman is not an attorney and therefore is not authorized to represent Dr. Wilson. Whether or not Dr. Wilson authorized the filing of a notice of appeal on his behalf,5/ Dr. Wilson has not filed the brief necessary to advance an appeal. CCNC and CHANGE are represented by attorneys John D. Runkle and Daniel F. Read, re-spectively. There is no indication that Mr. Eddleman has been 4/ In this case, the written notice of appearance shall state the basis of his or her authority to act on behalf of the party. 10 C.F.R. 5 2.713(b).

5/ There is no basis upon which to assume that Dr. Wilson (or CCNC or CHANGE) desires to be represented by Mr. Eddleman or to l appeal. Applicants did not object when Mr. Eddleman signed the

names of other parties / representatives to the Notice of Appeal, because we assumed they would themselves sign any brief sub-mitted on their behalf. Instead, Mr. Eddleman alone signed and filed Intervenors' Brief.

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empowered, as a member or officer, to represent those organiza-t t

\/ tions in place of their counsel. Whether or-not CCNC and CHANGE authorized the filing of a notice of appeal on their be-half, those parties have not filed the brief necessary to advance an appeal.

Consequently, Mr. Eddleman's attempt to appeal from Li-censing Board rulings on EPJ-l and on contentions proposed by CHANGE and Dr. Wilson, should be dismissed.p/ In the alterna-tive, Applicants reply below in Soction IV to the merits of the appeal on those rejected proposed contentions.2/

s/ One intervenor's standing to appeal on behalf of others has been questioned previously. In the environmental appeal, however, the defective challenge to the Licensing Board's dis-missal of CHANGE Contention 79(c) raised essentially the same issues as Mr. Eddleman's own appeal on his Contentions 15,

, 22(a) and (b). See Applicants' Brief in Reply to Intervenors' Appeal from the Partial Initial Decision on Environmental Con-tentions, dated May 9, 1985, at 41. In the safety appeal, Applicants did not mount a challenge to the attempt to chal-lenge the rejection of several CHANGE proposed contentions be-cause the appeal was not adequately briefed. See Applicants'

Brief in Reply to Intervenors' Appeal from the Partial Initial

Decision on Safety Contentions, dated November 22, 1985, at 32 n.45.

2/ Applicants considered seeking, before filing this brief, a declaratory ruling from the Appeal Board on the proper scope of the appeal. We have expended the contingency effort of ad-dressing the merits in order to avoid delay in the appellate process.

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II. 'The Licensing Board Did Not Err in Its Decisions, Based Upon the Record Compiled at Evidentiary Hearings, f'_ ) Resolving Eddleman Contentions 57-C-10, 116 and 41, and Joint Contention VII(4), in Applicants' Favor A. Eddleman Contention 57-C-10: Protection Factors Eddleman Contention 57-C-10 was the subject of ovidentiary hearings before the Licensing Board on June 24 and 25, 1985.

The sole issue litigated was the " adequacy of the Applicants' review of sheltering other than single-family residential" in Applicants' survey of potential shelters in the plume exposure pathway emergency planning zone (EPZ) of the Harris Plant.

This issue concerned whether the North Carolina Emergency Re-sponse Plan In Support Of The Shearon Harris Nuclear Power Plant ("ERP") should include information on the sheltering effectiveness of " typical institutional structures (schools, churches, etc.), commercial structures and industrial facili-ties in the plume EPZ" in order to comply with Evaluation Cri-terion II.J.10.m of NUREG-0654.g/ Memorandum and Order (Ruling on Remaining Summary Disposition Motions), at 6-7 (April 24, 1985).9/

g/ NUREG-0654, FEMA-REP-1/Rev. 1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," November, 1980.

9/ Although the Licensing Board denied Applicants' motion for summary disposition of Eddleman Contention 57-C-10, it narrowed the scope of the hearing and ruled out litigation of certain issues otherwise raised by the contention. April 24, 1985 Mem-orandum and Order at 3.

During the hearing, Applicants presented testimony con-(')

\' carning a survey that Applicants commissioned to gather the necessary information to determine the protection factoro (or

'PFs") of institutional, commercial and industrial structures in the Harris EPZ. See LBP-85-49, supra, slip op. at 5-9. As a result of the survey, Applicants derived estimates of the range of protection factors for categories of institutional, commercial and industrial structures typical of the Harris EPZ.

The Director of the North Carolina Division of Emergency Man-agement testified that the ERP will be amended to reflect the results of the survey and to include an analysis of the level of protection from radiation releases afforded by representa-tive commercial, institutional and industrial structures in the Harris EPZ that could be used as shelter in the event of an accident at the Harris Plant. Id. at 9.

Mr. Eddleman's appeal of Contention 57-C-10 is based sole-ly on his complaint about the particular information that will go in the ERP. This complaint was raised by Mr. Eddleman in his proposed findings on this contention.10/ It was fully addressed by the Board below. Id. at 11-13. In compliance with the Licensing Board's April 24, 1985 Memorandum and Order, Applicants categorized the nonresidential structures in the EPZ 10/ Wells Eddleman's Proposed Findings / Conclusions on Conten- l tion 57-C-10 and Emergency Planning, dated August 12, 1985,  ;

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and surveyed typical structures in each category. Martin, ff.

Tr. 7895, at 7-8. The PF ranges to be included in the ERP rep-resent the range of PFs that was obtained from this survey.

Thus, they are the ranges of PFs found for the categories of typical nonresidential structures in the EPZ. Inclusion of these values in the ERP will comply with Evaluation Criterion II.J.lO.m. LBP-85-49, supra, slip op, at 13-14. Indeed, as the Licensing Board concluded, id. at 11, this is all the in-formation that is necessary for emergency planning purposes, and inclusion of less detailed information would probably have been sufficient. Contrary to Mr. Eddleman's claim, Interve-nors' Brief at 6, there is no NRC or FEMA requirement that ad-ditional information be included in the ERP. Mr. Eddleman cites no authority for requiring more information to be includ-ed, and does not suggest how uuch data would be useful to deci-sionmakers if it were in the ERP.

Mr. Eddleman's complaints have been fully addressed by the Licensing Board below. His appeal on Contention 57-C-10 is wholly unsubstantial and without basis. Accordingly, the deci-sion of the Licensing Board should be affirmed.

B. Eddleman Contention 116: Fire Protection Eddleman Contention 116, as admitted by the Licensing Board, was a scatter-shot attack on certain aspects of Appli-cants' fire protection program, without any articulated thesis l

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s of overall inadequacy that somehow relates to public health and safety.11/ The Harris fire. protection program is based on a defense-in-depth concept and is designed to: (1) prevent fires; (2) promptly detect any fire condition; (3) suppress fires to limit consequent damage; (4) confine fires to thej areas of initiation;'and (5) separate redundant safety-related equipment so that control of the plant can be maintained under postulated fire conditions. LBP-85-49, supra, slip op. at 43.

As the NRC Staff witnesses testified, no one echelon of the fire protection program can or need be perfect or complete by itself (although each aspect of the fire protection program must meet certain minimum requirements). Eberly/Ferguson, ff.

Tr. 4626, at 17. Strengths of one part of the program can com-pensate for weaknesses, known or unknown, in the others. Id.

Mr. Eddleman has never come to grips with the basic concept of the fire protection program.

Mr. Eddleman, now on appeal, quarrels solely with what he characterizes as the Licensing Board's " acceptance of promises and future inspections or checking re fire protection." Inter-venors' Brief at 7. Citing Consolidated Edison Company (Indian Point Station, Unit No. 2), CLI-74-23, 7 A.E.C. 947, 951-52 l

11/ The text of Contention 116 is set forth in LBP-85-49, supra, slip op. at 26-27. The issues were litigated, briefed by the parties and decided by the Licensing Board in five subparts, as indicated by the subheadings in the Partial Ini-tial Decision. Id. at 30, 32, 35, 39.

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(1974), Louisiaria Power and Light Company (Waterford Steam 7_s V Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1103 (1983), and Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-84-53, 20 N.R.C. 1531 (1984), Mr.

~

Eddleman first contends that the Licensing Board erred in allowing " testing of ' generic' fire protection assemblies to be performed post-hearing instead of requiring data on the tests results."12/ Id.; see LBP-85-49, supra, Finding 14, slip op.

< at 31-32. This claim of error is raised for the first time on appeal. Indeed, the issue litigated had nothing to do with the adequacy of testing or test data, but rather concerned whether qualification tests on fire barriers represent actual plant conditions or comparable conditions. The Licensing Board found that the qualification conditions for fire barriers are based on a standard, empirically derived time-temperature curve that represents a worst-case fire. LBP-85-49, supra, slip op. at

31. A fire barrier tested to withstand a fire based on the standard time-temperature curve will resist a fire from the maximum calculated combustible loading in any Fire Area in the Harris Plant power block. Serbanescu, ff. Tr. 4256, at 11.

Thereby, Applicants have committed to install only those fire barriers which meet qualification tests that envelop the worst case fire to which they could be exposed at the Harris Plant.

12/ While Mr. Eddleman mentions in passing the Licensing Board's f.indings 20-24 (LBP-85-49, supra, slip op. at 33-35),

he does not appear to claim these findings are in error. See Intervenors' Brief at 7.

The NRC Staff will simply verify that Applicants have met

\~' their commitment to install qualified barriers -- as the Staff will do with respect to every other commitment made by Appli-cants to meet applicable NRC regulatory requirements. Eberly/

Ferguson, ff. Tr. 4626, at 9-11; Tr. 4662-64 (Eberly, Ferguson). Thus, the NRC Staff will simply be carrying out its inspection function which, as discussed infra, is clearly a proper post-hearing role for the Staff.

Mr. Eddleman next claims the Licensing Board erred by ap-proving an " analysis" of the effects of fire spreading that "does not take adequately into account the equipment located in adjacent areas." Intervenors' Brief at 7; see LBP-85-49, supra, Finding 32, slip op. at 38-39. This argument does not have any apparent relationship to the overall claim of error advanced by Mr. Eddleman -- i.e., improper post-hearing delega-tion to the NRC Staff. Nor is it entirely clear what Mr.

Eddleman finds wanting. The safety-related equipment in each Fire Area are listed in the Fire Hazards Analysis. See Appli-cants' Ex. 6. Each Fire Area in the Harris Plant is enclosed within three-hour, fire resistance-rated barriers or equiva-lent. LBP-85-49, supra, slip op. at 30. For each designated Fire Area, the Fire Hazards Analysis evaluates separately the occupancy, boundaries, combustible loading, control of hazards, fire detection, access and initial response, fire suppression systems, fire fighting equipment and the effects of postulated O

, fires. Serbanescu, ff. Tr. 4256, at 16; Applicants' Ex. 6.

Mr. Eddleman appears to suggest that the Fire Hazards Analysis is inadequate because it fails to postulate a complete break-down of the fire protection program and to analyze the resul -

tant impact of a fire spreading to adjacent Fire Areas. The simple answer is that for any such postulated failure the data in the Fire Hazards Analysis is sufficient to analyze the im-pact of fire spreading to an adjacent Fire Area. LBP-85-49, supra, slip op, at 39. More importantly, the fire protection program is designed to prevent the spread of fires. Id. Mr.

Eddleman would have Applicants engage in an endless exercise of "what if" analyses, beyond the scope of the existing fi re pro-tection requirements, without having postulated an inadequacy in the Harris fire protection program to warrant such an exer-cise. The Licensing Board rightly rejected this unsupported allegation of inadequacy in the Fire Hazards Analysis.

Mr. Eddleman next demurs regarding the Licensing Board's rejection of his proposed findings on Contention 116. Interve-nors' Brief at 7-8; see LBP-85-49, supra, Findings 40, 42-47, slip op at 42-44. Contrary to 10 C.F.R. 5 2.762(d)(1), he makes no specific claim of error, nor does he cite to evidence in the record to refute the Licensing Board's conclusions regarding his proposed findings.13/ The Appeal Board need not 13/ Section 2.762(d)(1) requires that a "brief must clearly identify the errors of fact or law that are the subject of this (Continued next page) i C:)

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engage in speculation regarding the merits of his appeal.14/

U His reliance on the Shoreham decision regarding " housekeeping" matters is misplaced, as discussed infra. The Licensing Board's responses to Mr. Eddleman's proposed findings are clear and correct, as are Applicants' earlier detailed replies. See LBP-85-49, supra, sli,p op. at 41-43. We need not repeat the Licensing Board's cogent reasoning in rejecting these same ar-guments here.15/

In light of the preceding discussion of the findings chal-lenged by Mr. Eddleman, his legal arguments regarding post-hearing resolution of contested issues by the NRC Staff are in-apposite. The leading case on this question is Indian Point, CLI-74-23, supra, 7 A.E.C. 947. The Commission in Indian Point stated that, "[a]s a general proposition, issues should be dealt with in the hearings and not left over for later (and possibly more informal) resolution." Id. at 951. The Commis-sion qualified its " general proposition" by adding that "[iln some instances, however, the unresolved matter is such that (Continued) appeal. For each issue appealed, the precise portion of the record relied upon in support of the assertion of errer must also be provided."

14/ See n.1, supra.

15/ See also Applicants' Reply to Proposed Findings of Fact and Conclusions of Law on Safety Matters Filed by Other Par-ties, dated January 29, 1985, at 60-71.

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Boards are nevertheless able to make the findings requisite to O issuance of the license." Id. (emphasis added). The Commis-sion gave, as a hypothetical example, a case where a Board found an applicant's security plan adequate except for " minor procedural deficiencies." Id. at 951 n.8.

Consistent with the direction given by the Commission in Indian Point, licensing boards have found that there are cir-cumstances in which issues may properly be delegated to the Staff for post-hearing resolution. In Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 N.R.C. 445, 543 (1983), the Staff had not yet completed its re-view of the applicant's environmental qualification program and there were a number of outstanding deficiencies in the pro-gram.16/ Nevertheless, the Licensing Board was "able to con-clude'that the unresolved aspects of the review do not prevent the Board from making a decision on the contention based upon the existing record." This finding was based on a determina-tion that the deficiencies in question were "' minor'" and would be " resolved by the Staff subsequent to this Board order, but prior to issuance of a license." Id. at 544. The Appeal Board affirmed the Licensing Board's decision, ALAB-788, 20 N.R.C.

1102, 1157-61 (1984), recognizing that the Staff would have,to 16/ Only 50 of the 131 environmental qualification packages submitted by the applicant had been found by the Staff to be complete by the time of the hearing. 18 N.R.C. at 540.

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confirm that the applicant had either upgraded or properly iso-

[_

\' } But lated non-safety related equipment. 20 N.R.C. at 1160.

here, there are no deficiencies in Harris Plant fire protection raised by Eddleman 116 -- minor or otherwise -- to be resolved.

The Shoreham decision cited by Mr. Eddleman was a licens-ing board decision on remand from the Appeal Board for further consideration regarding, inter alia, inadequate " housekeeping" in light of the applicant's " lack of diligence in correcting.

housekeeping deficiencies at Shoreham." Shoreham, supra, LBP-84-53, 20 N.R.C. at 1534-35. The Appeal Board had found-the applicant's commitment, in light of past deficiencies, to be insufficient to resolve this matter in dispute.17/

ALAB-788, supra, 20 N.R.C. at 1144-46. This situation is clearly distinguishable from the fire protection program at Harris, where no past deficiencies in fire protection practices serve as the basis of Mr. Eddleman's contention.18/

17/ This issue was resolved by the licensing board on remand without further hearing after the NRC Staff submitted affida-vits confirming the applicant's commitment to improve house-keeping conditions and practices at Shoreham, and in light of the observed and documented steady improvement in housekeeping and cleanliness at the plant. Shoreham, supra, LBP-84-53, 20 N.R.C at 1535.

18/ See also Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-31, 20 N.R.C. 446 (1984), aff'd, ALAB-819, 22 N.R.C. 681 (1985) (issues concern-ing the adequacy of the applicant's environmental qualification program delegated to the NRC Staff for post-hearing resolu-tion); Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, 735 F.2d 1437, 1449 (D.C. Cir. 1984), cert. denied, 105 S.Ct. 815 (1985) (results of inspections excluded from ad-judication).

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The fire protection-issues raised by Eddleman 116 and O challenged on appeal were resolved by the Licensing Board based on the uncontroverted evidence in the record below, and were not delegated to the NRC Staff for later resolution. Rather, the Staff will simply verify the implementation of a program found by the Licensing Board to be acceptable. This is clearly a Staff function.

C. Eddleman Contention 41: Pipe Hanger Welding On the basis of an extensive evidentiary record, the Li-censing Board found that while Applicants had experienced a number of problems in the early stages of the pipe hanger welding program, the enhancements to that program implemented in 1983 appear to have been reasonably effective, and averted any potential breakdown in quality construction. LBP-85-49, supra, slip op. at 49, 51. The Licensing Board also found that no uncorrected errors that would affect safe operation were identified in this proceeding. Id. at 51-52.

On appeal, Mr. Eddleman attempts to incorporate by refer-ence his proposed findings filed with the Licensing Board, and requests that the Appeal Board re-examine the record on Eddleman Contention 41 in light of those, unstated arguments.

See Intervenors' Brief at 8. Further, Intervenors' Brief in-

cludes not a single citation to the Licensing Board's decision, and not a single reference to the evidentiary record.19/ Id.

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i 19/ The only two citations to the transcript are to an unsworn limited appearance statement, and not to evidence. See Inter-(Continued next page)

)

The Appeal Board has treated issues as waived or abandoned 4 k where the appellant's brief has either failed to~ supply any record references or has provided only general references such as "to the evidence in the record" or to its " proposed find-ings." Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21.N.R.C. 490, 496 n.30 (1985). In addition, the general reference to Mr. Eddleman's proposed findings is particularly unhelpful where, as here, the Licensing Board explained its numerous reasons for not adopting them and, on appeal, Mr. Eddleman does not assert any error in the Licensing Board's analysis of his proposed findings.20/

See LBP-85-49, supra, slip op, at 49-51.

The only understandable argument Applicants can discern from Intervenors' Brief is the assertion that the Licensing Board should not have relied upon Applicants' commitments as a basis for resolving the contention, since there had been previ-ous problems with the pipe hanger welding program. Interve-nors' Brief at 8. The Licensing Board's decision, however, does not evince any reliance upon mere commitments. The i

I (Continued) i venors' Brief at 8. Further, pipe hanger design (addressed in the limited appearance) is not the subject of Eddleman Conten-tion 41, which is limited to pipe hanger welding. LBP-85-49, supra, slip op. at 44.

20/ See also Applicants' Reply to the Proposed Findings of Fact and Conclusions of Law on Safety Matters Filed By Other Parties, dated January 29, 1985, at 48-57.

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, enhanced pipe hanger welding and inspection program, which is described in the Licensing Board's decision, was initiated in December, 1983. LBP-85-49, supra, slip op, at 47-49. The Li-censing Board relied upon this established program, and the record includes evidence on the positive results achieved under that program through October, 1984 (i.e., up to the time of the evidentiary hearing).21/ Id. at 49.

Intervenors' Brief asserts no deficiencies in Applicants' enhanced pipe hanger welding and inspection program, and ad-vances no credible basis for disturbing the Licensing Board's well reasoned decision against Eddleman Contention 41.

D. Joint Intervenor Contention VII(4):

Steam Generator Tube Rupture Analysis The sole issue raised by Joint Contention VII(4) was whether Applicants are required to consider multiple tube rup-tures in the steam generator tube rupture analysis in their Final Safety Analysis Report ("FSAR"). LBP-85-49, supra, slip op. at 53. At the hearing on this issue, Applicants presented testimony which demonstrated that, based on the historical data of steam generator operation and the recent improvements in steam generator technology which will be employed at the Harris 21/ The NRC Staff witnesses testified that they had no doubts about the efficacy of the enhanced program and that what, in the Staff's view, was the root cause of the historical problems with pipe hanger welding had now been addressed. Tr. 7322-26 (Hallstrom, Blake, Maxwell, Bemis), 7356-58 (Bemis).

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Plant, a single tube rupture event would be predicted to occur

('~') with a frequ'ency of once in 120 years, not within the operating life of the Harris Plant. Id. at 54-55. This analysis of his-torical data was confirmed by the use of a model developed by Westinghouse to evaluate the frequency of tube rupture events.

Based on this same model, the predicted frequency of a multiple tube rupture is once in 14,000 years. Id. Using probabilistic risk analysis techniques, Applicants' expert witness also eval-uated the risk to the public from tube rupture events, and con-cluded that the risk of multiple tube ruptures would not con-tribute significantly to overall risk at the Harris Plant.

Therefore, there would be little benefit gained by performing a rigorous analysis of such an event. Hitchler, ff. Tr. 4010, at 13; Tr. 4015 (Hitchler).

The NRC Staff relied on the fact that Applicants will em-ploy procedures which minimize the probability of multiple tube ruptures. Marsh /Conrad, ff. Tr. 4176, at 4. The Staff also concluded that the double-ended guillotine single tube rupture analysis set forth in Applicants' FSAR is conservative enough to bound a multiple tube rupture event. LBP-85-49, supra, slip op. at 54.

The Joint Intervenors did not submit any testimony in sup-port of their contention. Based on the evidence presented by Applicants and the NRC Staff, the Licensing Board found that single tube failures are rare, and that multiple tube failures l

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,,, are even more unlikely. Id. at 58. The Licensing Board there-fore found that Applicants need not include an analysis of mul-tiple tube rupture events in the FSAR. Id.

In the three sentences allocated to " briefing" this ao-peal, Joint Intervenors have failed either 1) to provide cita-tions to the portions of the record relied upon in support of such appeal, or 2) to set forth any information which allegedly forms a basis for the appeal.22/ This cryptic approach to briefing is contrary to the Commission's rules.23/

Moreover, to the extent that the general thrust of the Joint Intervenors' two claims of error with regard to Joint VII(4) can be discerned, these claims are simply without merit.

First, they baldly assert that "the board below erred in not adequately justifying its decision not to require analysis of multiple tube rupture events." Intervenors' Brief at 9. Sec-ond, they allege that, over the life of the Harris Plant, mul-tiple tube ruptures will occur with the same frequency as other events and could have consequences beyond the design basis events analyzed in the ESAR. Id. The first claim is wrong as a matter of law; the second claim has no support in the record and is wrong as a matter of fact. Thus, even if the Appeal 22/ Mr. Eddleman's excuse that he has not had room to arrange his case files is completely insufficient. Certainly the Joint Intervenors had all information necessary to prepare their ap-peal on this issue.

23/ See n.1, supra.

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Board were to review the Joint Intervenors' appeal notwith- l

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standing the blatant inadequacy of the brief, it need not pause long before rejecting the meritless claims.

A licensing board's decision meets the requirements of the Administrative Procedure Act and the Commission's Rules of Practice if it sufficiently informs a party of the disposition of its contentions. Union Electric Company (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C. 343, 367 (1983); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-422, 6 N.R.C. 33, 41 (1977), aff'd, CLI-78-1, 7 N.R.C. 1 (1978), aff'd sub nom., New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978). The Licensing Board fulfilled and exceeded this requirement when it made its detailed findings of fact on the various aspects of Joint Con-tention VII(4). The Licensing Board also considered in detail each proposed finding of fact submitted by the Joint Interve-nors, even though "the Board . . . had great difficulty in de-termining a nexus between those proposed findings and the ne-cessity of performing a multiple-tube rupture analysis in the FSAR." LBP-85-49, supra, slip op. at 56. Only after evaluating the record and the proposed findings submitted by all parties did the Licensing Board reach a verdict in favor of Applicants. This detailed enumeration and analysis of the facts clearly were sufficient to justify the Licensing Board's decision.

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l The Joint Intervenors' second claim simply is not sup-l I'-~)

l ported by the record. The Joint Intervenors state that a mul-tiple tube rupture is in the same range of probability as "other events" analyzed, presumably referring to single tube ruptures. The uncontroverted testimony showed, however, that while single tube rupture events are predicted to occur once in 120 years of operation, multiple tube ruptures are predicted to occur only once in 14,000 years of operation. Hitchler, ff.

Tr. 4010, at 10, 12. These probabilities clearly are not "in the same range."

Likewise, there is simply no support for the Joint Inter-venors' assertion that multiple ruptures could lead to leaks beyond the design basis events analyzed in the FSAR. As the NRC Staff testified, the double-ended guillotine break of a single tube analyzed in Applicants' FSAR bounds the circum-stance in which smaller, more probable, leaks are observed in multiple tubes. LBP-85-49, supra, slip op. at 54. Moreover, the NRC Staff presented testimony that even in the event of a tube rupture accident beyond the design basis, the Harris Plant procedures would enable operators to deal with the situation and manage the event with acceptable consequences.

Marsh /Conrad, ff. Tr. 4176, at 5-6.

The Licensing Board's decision is based on substantial, uncontroverted evidence and is clearly reasoned and articulat-ed. The Joint Intervenors' perfunctory appeal should be rejected out-of-hand.

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III. The. Licensing Board Did Not Err And Applied The Correct Legal Standard in Dismissing Eddleman

(__} Contention 30 on Applicants' Motion for Summary Disposition-Mr. Eddleman asserts on appeal that "[t]he LICENSING BOARD ERRED in allowing some information required to be 'in the plan' not be in the plan [ sic), in summary disposition of conten-tions, e.g. Eddleman 2 and 30, potassium-iodide." Intervenors' Brief at 6. Mr. Eddleman then refers the Appeal Board to the

" findings" and " decision documents" cited in paragraphs 3 to 5 of Applicants' Proposed Findings of Fact and Conclusions of Law on Emergency Planning Matters, dated August 1, 1985. Id. In those paragraphs, Applicants traced the history of the admitted emergency planning contentions, and simply listed the more than twenty contentions which had been decided on Applicants' mo-tions for summary dispecition.

Once more, as to this paragraph of Intervenors' Brief, ap-pellees and the Appeal Board are left to speculate on their own as to the Licensing Board decisions being challenged. There is not a single citation to a Licensing Board decision, or to any i

i portion of the underlying record. Clearly, Mr. Eddleman has not complied with 10 C.F.R. $ 2.762(d)(1); and Applicants ac-cordingly limit their reply to those arguments that are reason-ably identified and understandable.24/ See Appeal Board Order 24/ Applicants decline to undertake the task of reviewing the Licensing Board's summary disposition rulings on over twenty contentions to identify those to which Intervenors' argument l here might apply. That task clearly was the appellants'.

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(unpublished) at 4 (Oct. 31, 1985).

c p/

'- Eddleman Contention 2 -- one of two contentions cited in this portion of Intervenors' Brief -- was never admitted for adjudication and was therefore not the subject of a summary disposition motion.25/ Accordingly, the citation to it in In-te rvenors ' Brief is entirely misplaced.

The Licensing Board's decision granting Applicants' motion for summary disposition of Eddleman Contention 30 is set forth at Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), LBP-85-27A, 22 N.R.C. 207, 223-224 (1985).26/- The Li-censing Board correctly determined that there was no genuine issue as to any material fact with respect to Eddleman 30. See 10 C.F.R. 5 2.749(d).

The sole issue raised by Eddleman Contention 30 is whether a specific quantity of potaccium iodide for emergency workers and for institutionalized persons must be set forth in the off-site emergency response plan itself, or whether the plan's 25/ See the Licensing Board's unpublished Further Rulings on Admissibility of Offsite Emergency Planning Contentions Sub-mitted by Intervenor Eddleman, at 8-10 (June 14, 1984).

26/ The Licensing Board's grant of the motion had been an-nounced earlier in its unpublished Memorandum and Order (Ruling on Remaining Summary Disposition Motions), at 2 (April 24, 1985). The underlying pleadings are: Applicants' Motion for Summary Disposition of Eddleman 30, dated January 14, 1985; NRC Staff / FEMA Response in Support of Applicants' Motion for Sum-2 mary Disposition of Eddleman Contention 30, dated February 27, 1985; and Wells Eddleman's Response to Summary Disposition on Contentions 57-C-10, 30, 213-a and 215, dated March 11, 1985.

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provision for determining the required quantities of potassium

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\# The contention, which the Licensing iodide is sufficient.

Board quotes in its decision, is based exclusively on evalua-tion criterion II.J.10.e of NUREG-0654, which the Licensing Board also quotes. LBP-85-27A, supra, 22 N.R.C. at 223.

Applicants' motion argued that FEMA had not interpreted its guidance to require a listing of potassium iodide quantities in a plan, but rather to require the plan to document the provi-sions for the determination of sufficient quantities. Appli-cants set forth the relevant sections of the ERP which document the State of North Carolina's coordinated plan for the procure-ment, storage and distribution of potassium iodide for emergen-cy workers and institutionalized persons in the event of an emergency at any of the nuclear power plants affecting that etetc.27/ Applicente cice cdvcnced the Stcte'c pecition that quantities of potassium iodide should not be specified in the plan, because such quantities would vary over time.28/ FEMA's response confirmed that it does not construe its guidance as Mr. Eddleman has, endorsed the State's reasoning that since ,

quantities would fluctuate they should not be in the plan 27/ See, accompanying Applicants' motion, the affidavit of Charles D. Reed of the Division of Health Services, Department of Human Resources of the State of North Carolina.

28/ A.s the Licensing Board found, the State does distribute information on the quantities of potassium iodide, but indepen-dently of the actual emergency plan document. LBP-85-27A, supra, 22 N.R.C. at 224.

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itself, and reported FEMA's conclusion that the plan meets cri-terion II.J.lO.e.

The only relevant opposition advanced by Mr. Eddleman29/

was his personal grammatical analysis of the words in NUREG-0654 evaluation criterion II.J.lO.e. This appears to be the only basis for the appeal as well. Mr. Eddleman cites GUARD v.

NRC, 753 F.2d 1144, 1148-49 (D.C. Cir. 1985), apparently for the proposition that judicial deference to an agency's inter-pretation of its own regulation will not be provided if that interpretation does violence to the plain meaning of the provi-sion at issue. Intervenors' Brief at 6. The GUARD decision, i

however, does not apply here. First, the language of NUREG-0654 is ambiguous, inviting agency interpretation. Second, this evaluation criterion is mere guidance, not an agency reg-ulation. Further. it is guidance which, in the absence of Com-i mission endorsement, is not binding on Applicants or on the-Li-censing Board. See LBP-85-27A, supra, 22 N.R.C. at 224, citing

4. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 N.R.C. 1290, 1298-99 (1983).

I j The Licensing Board correctly found that there was no dis-

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pute as to the facts that the State had determined the 1'

29/- Mr. Eddleman also questioned the adequacy of the quan- ,

titites of potassium iodide available. Eddleman Response, supra, n.26, at 6. The Licensing Board properly held that the claim on " adequacy" was outside the scope of the contention. ,

LBP-85-27A, supra, 22 N.R.C. at 224. l i

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quantities of potassium iodide which would be needed in an

'- emergency, and that the placement of that information in an im-plementing procedure rather than in the plan itself satisfies the purpose of evaluation criterion II.J 10.e. Id. By lim-iting his opposition below to the interpretation of the lan-guage of NUREG-0654, Mr. Eddleman failed to contest the materi-al issues of fact relevant to his Contention 30.

IV. The Licensing Board Did Not Err in its Rulings Rejecting Various Proposed Contentions As Inadmissible A. Introduction On appeal, Mr. Eddleman voices relatively few complaints about the Licensing Board's disposition on the merits of the admitted emergency planning contentions. Rather, he focuses upon a relative handful of the hundreds of proposed contentions rejected at the pleading stage. Mr. Eddleman begins with the statement: "All Eddleman contentions rejected by the Licensing Board below are hereby appealed." Intervenors' Brief at 2.

The Appeal Board in this proceeding has held:

. . it is obvious that the intervenors cannot obtain appellate review of the Li-censing Board's rejection of dozens of their proferred contentions by the simple expedient of stating, without a great deal more, that their arguments apply equally to "each and every safety contention" filed by the various intervenors.

Order (unpublished) at 2 (Oct. 31, 1985). Here, Mr. Eddleman O

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offers a one-paragraph generic argument that all his proposed t '

contentions 30/ " comply with the basis and specificity require-ments," and that the Licensing Board improperly applied regula-tions and case law. Intervenors' Brief at 2. The Eddleman proposed contentions are not identified or discussed,31/ and the Licensing Board rulings are totally ignored. Given the magnitude of these briefing deficiencies and the guidance pro-vided in the Appeal Board's Order of October 31, 1985, Appli-cants do not reply to Mr. Eddleman's lame attempt to appeal every rejection of his proposed emergency planning contentions.

Following our reply to the untimely appeal of a rejected safety contention (Eddleman 41-G), Applicants proceed below to address the rejected proposed emergency planning contentions discussed in Intervenors' Brief.32/ Applicants first reply, however, to one argument advanced repeatedly by Mr. Eddleman throughout his brief on emergency planning contentions.

30/ The hand-written addition, "especially, e.g., those filed 4-12-84," does not serve to cure the deficiencies in the brief.

See Intervenors' Brief at 2. Most of the 96 Eddleman proposed emergency planning contentions submitted as of April 12, 1984, were filed on that date. See Applicants' Answer to Eddleman Proposed Contentions on SENPP Emergency Response Plans, dated April 28, 1984. Later, Mr. Eddleman proposed additional emer-gency planning contentions.

31/ The Eddleman proposed contentions identified and discussed later in Intevenors' Brief are addressed below.

32/ In Section I, supra, however, Applicants argue that most of these appeals are defective because Mr. Eddleman is not au-thorized to advance them.

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, Mr. Eddleman apparently contenda that the decision in UCS

v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 105 S.Ct.

815 (1985), stands for the proposition that once a hearing re-quest on an operating' license application is granted, the NRC must hold a hearing.on all issues material to licensing which

, are raised by the requester. See Intervenors' Brief at 3-6.

In contrast, what the Court ruled is that the Commission may not eliminate altogether, by regulation, the opportunity for hearing on emergency plan exercises, which are deemed to be so material to the NRC's licensing decision. The Court did not reject, as Mr. Eddleman implies, the Commission's requirements for proposed contentions, as they apply to exercises or any other cognizable issue. In fact, the Court cites its previous decisions recognizing the " basis" requirement for proposed con-tentions, as well as the summary disposition standard. See UCS

v. NRC, supra, 735 F.2d at 1448. In short, this decision -- at least with respect to issues other than emergency plan exer-cises -- has no application whatsoever to the Licensing Board's rulings rejecting proposed emergency planning contentions.

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- B. Eddleman 41-G J

1. Introduction Eddleman 41-G was one of a series of late contentions.

which were first proposed by Mr. Eddleman on October 25, 1984, when he distributed handwritten copies of new allegations to the Licensing Board and parties present at the hearing on l admitted safety contentions. Tr. 5578-79, 5730. Eddleman 41-G was based on an affidavit prepared by Mr. Chan Van Vo, a former employee of Applicant Carolina Power & Light Company ("CP&L"),

in which Mr. Van Vo alleged, inter alia, that he was harassed and his employment was terminated when he brought safety con-cerns to the attention of CP&L management. Tr. 5731.

As originally proposed, Eddleman 41-G was stated as fol-lows:33/

There exists a pattern of harrassment, in-timidation, and failure to respond posi-tively to employees bringing forward QA/QC concerns at the Harris plant (see, e.g.,

Chan Van Vo affidavit of 10-6-84 at para-graphs 26, 25, 24, 23, 19, 15, 14, 13, 12, 11, 10, 9, 6, 4, 3 & 1. This prevents con-cerns from being brought forward and dealt with properly in compliance with 10 CFR 50 App B, e.g. criteria 15, 16, 14, 1, 2&3.

33/ See Applicants' Response To Late-Filed Contentions of Wells Eddleman and Conservation Council of North Carolina Based on the Affidavit of Mr. Chan Van Vo, dated November 13, 1984 (hereinafter " Applicants' Response to Late-Filed Contentions"),

at Exhibit B (setting forth a typed version of Eddleman 41-G).

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, _ - , _ , _ , , _ _ . . _ . ~ , . - . - - . -

Mr. Eddleman represented to the Licensing Board that Mr. Van Vo 7-)

\' would be available as a witness for a hearing and urged the Li--

censing Board to give Mr. Van Vo.an opportunity to testify about the-allegations set forth in his affidavit and incorpo-rated into the proposed Eddleman 41-G. Tr. 5742 (Eddleman).

Applicants and the NRC Staff opposed the admission of the late contention.34/

On January 14, 1985, the Licensing Board admitted a modified version of Eddleman 41-G, which was stated as follows:

Chan Van Vo was placed on probation and later terminated from his job with CP&L be-cause he had sought to raise nuclear safety concerns about the Harris facility, as he alleges, and not because of poor job per-formance, as CP&L allegas.

Memorandum and Order (Ruling on Certain Safety Contentions and Other Matters), at 3-4 (Jan. 14, 1985) (hereinafter " Order of January 14, 1955"). Thus, the Licensing Board rejected the concept of a broader, more general contention alleging a pat-tern of harassment of employees who voiced safety concerns.

'l Id.

On May 29, 1985, during the course of a conference call held, inter alia, for the purpose of setting the schedule for the hearing on Eddleman 41-G, counsel for Mr. Van Vo announced 34/ Applicants' Response to Late-Filed Contentions at 32. NRC Staff Response in Opposition to Contentions Proferred by Wells Eddleman and CCNC Based Upon an October 6, 1984 Affidavit of Chan Van Vo Davis, dated November 13, 1984, at 9.

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for the first time that he might be unable to guarantee that 7

b his client would be available at the hearing date previously proposed by the parties. Tr. 7679. The Licensing Board re-quested that counsei confirm his client's availability and

' stated that if Mr. Van Vo would not be appearing as a witness, it would consider whether the five factors governing the admis-sibility of late-filed contentions still weighed in favor of the contention. Tr. 7687.

Mr. Van Vo's counsel subsequently informed the Licensing Board that he was unable to make a commitment as to Mr.

Van Vo's appearance at the hearing. Tr. 7730. On June 6, l 1985, the Licensing Board heard arguments on whether Eddleman 41-G should be dismissed. Tr. 7730 et seq. On June 13, 1985, the Licensing Board dismissed Eddleman 41-G on the ground that, without Mr. Van Vo as a witness, the five factors weighed against admission of the contention. Memorandum and Order (Dismissing Contention Concerning Alleged Harassment of Former Employee and Rejecting Emergency Planning Contention), June 12, 1985 (hereinafter " Order of June 12, 1985").

Mr. Eddleman now challenges the dismissal of his Conten-tion 41-G. As set forth below, the appeal of Eddleman 41-G is both untimely and substantively without merit. The Licensing Board's decision, therefore, should be sustained.

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, _ _ _ _ , _ _ _ - . . . - , --_m-e,4 me ------w y7- m -~ .-++-y-w- 1m----

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2. The Appeal Of Eddleman 41-G Is Untimely As discussed above, Eddleman 41-G was admitted as a late-filed safety contention on January 14, 1985, and was dismissed on June 12, 1985. On. August 20, 1985, the Licensing Board issued its Partial Initial Decision on Safety Contentions and ordered that an appeal from this Partial Initial Deci-sion or from any prior Board Order granting

a motion for summary disposition, in whole or in part, of a safety contention or excluding a proposed safety contention from litigation may be taken by filing a notice of appeal with the Atomic Safety and Li-censing Appeal Board within 10 days after service of this decision.

Carolina Power & Light Company (Shearon Harris Nuclear Power i

Plant), LBP-85-28, 22 N.R.C. 232, 298 (1985) (emphasis added).

1 Thus, the dismissal of Eddleman 41-G was ripe for appeal at the time the partial initial decicien en cafety contentions was issued.35/ It is untimely now and the Appeal Board should not entertain it.

35/ Although Mr. Eddleman seeks to link this contention to the emergency planning contentions which were scheduled for hearing at the same time as Eddleman 41-G, there can be no question that Eddleman 41-G was proposed and admitted as a safety con-tention. See Tr. 5741 (Mr. Eddleman argues that "I know of few more important, if any more important safety issues") (emphasis added); Order of January 14, 1985, at 10 ("Mr. Eddleman's pro-posed Contention 41-G alleges harassment of employees at the Harris Facility to discourage them from bringing forward safety concerns") (emphasis added).

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,. 3. The Licensing Board Properly Dismissed Eddleman 41-G V

Even if the Appeal Board should decide to address the ar-guments now made on Eddleman 41-G, the applicable law and the circumstances of this proceeding demonstrate beyond doubt that ,

the Licensing Board was justified in dismissing Eddleman 41-G.

Eddleman 41-G was proposed as a late-filed contention. Tr.

5731 (Eddleman). The Licensing Board's decision to admit or reject such contentions is accorded great deference and will not be overturned absent an abuse of discretion. Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant),.CLI-75-4, 1 N.R.C. 273, 275 (1975).QS/ It follows that a party appealing a decision rejecting such a contention bears a heavy burden; it must convince the Appeal Board that no reasonable mind could 36/ The five factors to be considered when determining whether to admit late-filed contentions are:

1) Good cause, if any, for failure to file on time, ii) The availability of other means whereby the petitioner's interest will be protected, iii) The extent to which the petitioner's partici-pation may reasonably be expected to assist in developing a sound record.

iv) the extent to which the petitioner's interest vill be represented by existing parties.

v) The extent to which the petitioner's partici-pation will broaden the issues or delay the  !

proceedings.  !

1 10 C.F.R. 5 2.714(a)(1)(i)-(v).

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t s

have reached the result reached by the Licensing Board, 7s e a

# Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C. 1167, 1171 (1983).

It is apparent that Mr. Eddleman has not borne that burden in the case of his Contention 41-G.

In addressing the five factors to be considered when de-termining whether to admit late-filed contentions, the Licens-ing Board found that Eddleman 41-G was proposed reasonably soon after Mr. Van Vo's affidavit became available and that, there-fore, the delay was not chargeable to Mr. Eddleman. Order of January 14, 1985, at 2. Secondly, the Licensing Board found that factors two and four, involving the protection of the in-tervenor's interest, weighed in favor of admitting Eddleman 41-G. The Licensing Board correctly noted, however, that fac-tors two and four are to be given less weight than other fac-tors. The Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 N.R.C. 1760, 1767 (1982).

Factors three and five were found to weigh against the admission of Eddleman 41-G. The Licensing Board determined that Mr. Eddleman had not demonstrated an ability to contribute to the development of the record and that admission of the con-tention would broaden the issues in the proceeding. Order of January 14, 1985, at 3. Those considerations tilted the bal-ance against admission of the contention as proposed by Mr.

Eddleman. Id. Nevertheless, rather than reject Eddleman 41-G l

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,_ in its entirety, the Licensing Board reformulated the conten-i'~)s tion to' address the specific harassment allegations contained in Mr. Van Vo's affidavit. The Licensing Board concluded that the five-factor balancing test weighed in favor of admitting ,

the narrow contention because the potential for delay was de-creased and presentation of testimony on the narrow contention would be within Mr. Eddleman's limited resources. Id. at 4.

It is manifestly clear from the record of the hearing at which the parties addressed the five factors, and from the lan-guage in the Licensing Board's decision to admit Eddleman 41-G, that Mr. Van Vo's availability as a witness was critical to the Licensing Board's application of the five factors. Mr.

Eddleman's argument and the Licensing Board's decision focused primarily on the third factor, the ability of the party to con-tribute meaningfully to the record, and to a lesser extent on the fifth factor, the extent to which the new contention would broaden the issues and lead to delay. Id. at 2-4; Tr. 5738, 5740-41, 5742-44 (Eddleman).

Mr. Eddleman himself acknowledged the significance of being able to produce a witness when he conceded that "for a late contention you are required -- or at least there is some strong implication . . that you have to have a witness". Tr.

5734 (Eddleman). He then went on to state that "[W]e have got a potential witness." Id. Mr. Eddleman affirmed that:

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);

Mr. Van Vo, according to his counsel, is willing to appear. He is willing to meet

(~)'

'- with me and his counsel to prepare-whatever he would need to prepare. I don't know if we could prefile anything beyond his affi-davit, but if we could, I think we would.

I would certainly make efforts in that direction.

He is available and has direct knowledge of these matters as stated in his affidavit, so I think as to having a witness, we are okay.

Tr. 5742 (Eddleman).

Moreover, Mr. Eddleman represented that Mr. Van Vo was available reasonably promptly. Tr. 5738. In other words, ac-cording to Mr. Eddleman, he could satisfy the third factor be-cause he had a witness who could contribute to the record. He could satisfy the fifth factor because Mr. Van Vo would be available promptly and any hearing on Eddleman 41-G would not unduly delay the proceeding. Although these representations did not justify admitting the broad contention originally pro-posed, the Licensing Board deemed them sufficient to allow admission of a narrower contention specific to Mr. Van Vo's claims.

Six months later, however, when the Licensing Board at-tempted to schedule a hearing on Eddleman 41-G it learned that, notwithstanding Mr. Eddleman's previous statements, Mr. Van Vo was unavailable as a witness. Although Mr. Eddleman now claius ,

1 that "it was never stated that Van Vo would not appear," this j l

argument is simply disingenuous and ignores the clear record of the Licensing Board's efforts to set a date for a hearing.

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As the record reflects, on May 21, 1985, the Licensing Board asked Mr. Eddleman about Mr. Van Vo's availability in late June. Tr. 7601. Mr. Eddleman responded that it would be necessary for him to check with Mr. Guild, Mr. Van Vo's coun-sel. Id. At the next conference call on May 29, 1985, Mr.

Guild still was unable to commit to Mr. Van Vo's availability.

The Licensing Board indicated its displeasure at this inability to commit to Mr. Van Vo's availability for a hearing on June 24 or to suggest an alternate date, but nevertheless set another conference call for June 6, 1985, to discuss Mr. Van Vo's availability and whether Contention 41-G could be heard without Mr. Van Vo. Tr. 7682. During that conference call, in which Mr. Guild and Mr. Eddleman participated, the Licensing Board stated that "Mr. Guild reported that he could not commit that Mr. Van Vo would be available as a witness on the 24th." Tr.

7730. Mr. Guild did not disagree with that statement or pro-pose any other dates when Mr. Van Vo would be available. In-deed, Mr. Guild argued that the hearing should proceed without Mr. Van Vo. Tr. 7732.

The Licensing Board disagreed. It held that because Mr.

Eddleman would not have Mr. Van Vo as a witness, the five fac-tor test weighed against Eddleman 41-G. As the Licensing Board explained, when it admitted Eddleman 41-G, it "did not speak explicitly to the importance of Chan Van Vo's appearance as a witness . . . [b]ut that was because we were assuming Mr.

l (S) i

. _ - -. ~ . . - , ._, .- - - - _ .

i Van Vo would appear and testify -- an assumption inherent in CD

\/ the contention itself and repeatedly reinforced by Mr.

Eddleman's representations." Order of June 12, 1985, at 5.

The Licensing Board concluded that, without Mr. Van Vo

" factor 3, the ' contribution' factor, has changed dramatically against the Intervenors." Id. at 6.

The decision to dismiss Eddleman 41-G clearly was within l

the Licensing Board's discretion and, indeed, was mandated by the applicable law. Although licensing boards are given wide latitude in balancing the-five factors, they must scrutinize closely a petitioner's ability to contribute to the record.

WPPSS, supra, ALAB-747, 18 N.R.C. 1167, 1177, 1181 (1983). A party seeking to intervene late (or to propound a late-filed contention) has the burden of justifying intervention or admis-sion of a contention. To satisfy this burden, that party should identify at least one witness it expects to call and provide the details of his testimony. Id. at 1181. Where it is unclear that a witness can be produced, the licensing board may refuse to consider the contention. South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1),

ALAB-642, 13 N.R.C'. 881, 893-94 (1981), aff'd sub nom.,

Fairfield United Action v. NRC, 679 F.2d 261 (D.C. Cir. 1982)

(reversing licensing board's grant of petition to inter-vene).37/

37/ A licensing board has no obligation to call its own wit-ness to testify on behalf of an intervenor's position. Indeed, (Continued next page) 1 O .- - . _ _ . - . , . - -__ _ - .-.- ,.._. - -.

4 The requirement to produce a witness is not waived even I)

'- where the petitioner can demonstrate his own legal ability to contribute to the record; it is the ability to contribute sound evidence, rather than legal skills, that is significant.

Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 N.R.C. 508, 513 n.14 (1982). It is even more crucial where, as here, there was nothing whatsoever to suggest that Mr. Eddleman could effec-tively utilize his right to cross-examine other parties' wit-nesses to adduce support for his contention. See Summer, supra, ALAB-642, 13 N.R.C. at 894 n.4.

Indeed, far from demonstrating that he could effectively make a record from cross-examination, Mr. Eddleman relied heavily on the fact that he would not be required to exert sub-stantial efforts in cross-examination. Tr.-5743 (Eddleman).

At the time Eddleman 41-G was proposed, Mr. Eddleman envisioned his participation as being " basically just to get him (Mr.

Van Vo) in here and make him available to bring out his in-formation." Tr. 5744. This was crucial because, as the Li-censing Board noted, "the hearings on Mr. Eddleman's several safety contentions sometimes left us with the feeling that he (Continued) a licensing board is only permitted to call a witness in extra-ordinary circumtances. South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station), ALAB-663, 14 N.R.C. 1140, 1163 (1981).

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E had spread himself too thin" and that "Mr. Eddleman will have a

> lot of work to do on his emergency planning contentions" and, thus, would have less time to devote to the late-filed safety contentions. Order of January 14, 1985, at 3. In short, the record of the proceedings belied any claim that Mr. Eddleman could contribute significantly to the record through cross-examination, and justified the Licensing Board's determination that without Mr. Van Vo's presence "further litigation of Eddleman 41-G would never get to the heart of that contention and would result only in wasted time and resources."~ Order of June 12, 1985, at 6.3g/

3g/ While a party may prove its contention through cross-examination in certain situations, there was absolutely nothing before the Licensing Board in May of 1985 to indicate that Mr. Eddleman could have done so, had he been capable of the most skillful cross-examination. By that date four separate investigations had been conducted in response to Mr. Van Vo's allegations, by the Department of Labor, by CP&L and by the Commission's Office of Inspection and Enforcement and Office of Investigations. None of these investigations substantiated Mr. Van Vo's claims. Notably, the Office of Investigations concluded that Mr. Van Vo's allegations were not safety related and that, in any event, he had been terminated for poor perfor-mance. Report of Investigation, Shearon Harris Nuclear Plant:

Alleged Harassment / Intimidation and Falsification of Documentation Commitments, Case No. 2-84-021, Office of Inves-tigations, United States Nuclear Regulatory Commission, May 16, 1985.

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,, C. Emergency Planning Joint Contention 1

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Mr. Eddleman appears to challenge on appeal for the first time the inclusion of one word - " severe" -- in the text of EPJ-l as formulated by the Licensing Board, which states:

Insufficient consideration has been given in the offsite emergency plans to the effects of' severe snow and ice conditions on evacuation times and/or capabilities to clear evacuation routes.

Section IV.E.8 of the State plan (at

50) is deficienct because the State does not have enough snowplows in this area to effectively clear the roads of snow or ice in a reasonable amount of time.

See LBP-84-29B, supra, 20 N.R.C. at 422. Mr. Eddleman now con-tends that the word " severe" improperly removed from the scope of the contention the allegedly more serious condition of

" light" snow or ice.39/ Intervenors' Brief at 3.

Mr. Eddleman's appeal is wholly without merit. First, the intervenors had the opportunity to propose their own consoli-dated contention and failed to do so. The Licensing Board re-quired the intervenors to meet to attempt to develop consoli-dated proposed contentions.40/ The intervenors subsequently l identified the " snow and ice" issue as one suitable for 39/ The last sentence of Mr. Eddleman's argument, however, inexplicably reverts to a discussion of the hazards of " severe" weather. See Intervenors' Brief at 3.

40/ See the Licensing Board's unpublished Memorandum and Order (Concerning Prehearing Conference and Site Visit of May 1-2, 1984), dated April 12, 1984.

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consolidation, but did not advance a text. Tr. 817-18. Conse-('-) quently, the intervenors tacitly left it to the Licensing Board to craft a fair consolidated text. Further, when the Licensing Board first suggested its inclination to admit a joint conten-tion on " heavy snow or severe ice," the intervenors did not voice an objection. Tr. 932. Neither did any party object when the text was first announced, or subsequently published in the written order.41/ See Tr. 974-75, 993-94, 996, 999; I

LBP-84-29B, supra, 20 N.R.C. at 422. The Commission's regula-tions provide the opportunity to file objections to prehearing conference orders. 10 C.F.R. SS 2.751a(d), 2.752(c). Parties should not be permitted to remain silent on such an asserted error, allowing the litigation to go forward and hoarding it for use as a ground for reversal in the event it does not like the ultimate decision on the merits. Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAL 459, 7 N.R.C. 179, 189 (1978).

Second, the Licensing Board's formulation of this consoli-dated contention reasonably reflects the concerns of the par-ties proposing the contentions from which it was derived.

CCNC's Contention 5 discussed maximum snow and ice conditions, 41/ It should be noted that portions of the transcript of the May 1-2, 1984 prehearing conference were corrected by the Li-censing Board and at* ached to its Order (Ruling on Various Pro-cedural Questions and Eddleman Contention 15AA), dated May 10, 1984.

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not light conditions.42/ Ihr. Wilson's 12(b)(7) addresses

" heavy rainstorms or snow or ice."43/ CHANGE postulated a new snowfall of three inches. Tr. 869.

In any case, Mr. Eddleman has not shown on appeal that the intervenors were prevented from litigating under EPJ-l any.

acceptable issue proposed by one of the underlying contentions, or that the weather conditions' addressed in the litigation do not encompass concerns with " light" snow and ice. EPJ-1 was decided in Applicants' favor by grant of a motion for summary disposition. LBP-85-27A, supra, 22 N.R.C. at 225-227. Inter-venors have not appealed that decision. During discovery, in-tervenors were asked to define " severe snow and ice condi-tions," and Applicants' motion addressed that definition.44/-

In response, intervenors did not attempt to dispute the weather conditions addressed by Applicants.45/ In short, the argument now made on appeal is both untimely and without merit.

42/ Contentions Arising From Review of Emergency Response Plan, dated April 3, 1984.

43/ Contentions of Richard Wilson Concerning North Carolina Emergency Response Plan, dated April 13, 1984.

44/ Applicants' Motion for Summary Disposition of EPJ-1, dated December 10, 1984.

45/ CHANGE Response to Motions for Summary Disposition EPJ-l and EPJ-4, dated March 11, 1984.

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b n J D. CHANGE Contentions 20 and 21 k Proposed CHANGE Contention 20 alleged that the ERP pro-vides inadequate assurance of prompt and safe evacuation be-cause it does not include special measures for dealing with "large numbers of North Carolinians who have consumed large 1 . quantities of alchohol (sic] or other drugs, which is likely to cause traffic and other control problems . . .".46/ CHANGE 21 addressed the evacuation of churches on a Sunday morning.47/

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The Licensing Board rejected proposed CHANGE 20 because it i did not address relevant sections of the ERP and lacked the as-

] serted basis with specificity required by 10 C.F.R. $ 2.714(b).

Tr. 977-78. The ERP relies upon State and local law enforce-ment officials to staff traffic control points, to warn and evacuate persons in designated zones, and to conduct other law enforcement activity necessary for the protection of life and i

property. The existence of a drunk or drugged evacuee needing

] assistance or control precisely fits into the assigned emergen-l cy response functions of law enforcement.4g/

2 1

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) 46/ Supplement to Petition for Leave to Intervene of Interve-l nor CHANGE Regarding the North Carolina Emergency Response Plan

(Feb. 1984) in Support of SENPP, dated April 5, 1984, at 6.

] 47/ Id.d at 7.

4p/ Applicants' Answer to CHANGE Proposed Contentions on SENPP off-Site Emergency Response Plan, dated April 23, 1984, at 36-38.

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_-_.,__..__,_-_____._.._..,__..m,__.m_,_ . . , _ . _

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On appeal, Mr. Eddleman erroneously argues that the.Li-

'" ' censing Board went to the merits of the contention, and thereby ran afoul of the holding in Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2),.ALAB-130, 6 A.E.C. 423 (1973). Intervenors' Brief at 3-4. Since the proposed contention in Grand Gulf addressed the agency's environmental responsibilities, and not its statutory duty under the Atomic Energy Act, the decision applies to emergency planning matters

. only for the proposition, embodied in 10 C.F.R. $ 2.714(b),

4 that the basis for a contention must be set forth with reason-able specificity. Grand Gulf, supra, ALAB-130, 6 A.E.C. at 426. This does not mean that any " specific" contention auto-matically passes the " basis" test. At least as to health and safety matters, licensing boards are expected to scrutinze a proposed contention to determine if the basis advanced is cred-ible or arguable. Where no attempt is made to identify with reasonable specificity a credible or arguable basis for a proferred contention, dismissal by a licensing board is justi-fied. Philadelphia Electric Company (Limerick Generating Sta-4 tion, Units 1 and 2), ALAB-765, 19 N.R.C. 645, 652-565 (1984).49/ Here, where CHANGE asserted no basis for its claim of large numbers of incapacitated people in the EPZ 50/ and 4

49/ While Applicants believe that Limerick clarifies the hold-ing in Grand Gulf, its applicability to environmental conten-tions is not at issue here.

50/ It is too late to attempt to advance new basis for the contention on appeal. See Intervenors' Brief at 4.

failed to address (i.e., " misunderstood" as in Limerick) provi-sions in the ERP, its call for "special" measures is lacking in an asserted credible or arguable basis.

Similarly, CHANGE 21 -- addressing churchgoers as another allegedly special population for evacuation purposes -- totally j ignored the ERP (e.g., the existence of a siren warning system to alert the population, including any gatherings of the popu-lation), did not assert a deficiency in the plans, and there-fore lacks any arguable or credible basis.51/ The Licensing Board properly rejected CHANGE 21. Tr. 981. On appeal, Mr. Eddleman does not explain in any meaningful way why he views this holding to be in error. See Intervenors' Brief at 4.

i E. CHANGE Contention 4 Proposed CHANGE Contention 4 argued that in order to pro-vide reasonable assurance that the task of clearing evacuation routes can be accomplished, emergency response personnel oper-ating affected equipment of the State Department of Transporta-tion and municipal works departments should -- at the time the contention was filed -- be equipped with, and trained in the use of, radiation detection equipment.52/ The Licensing Board f

51/ See Applicants' Response to CHANGE, supra n.48, at 38.

52/ CHANGE contentions, supra, n.46, at 3.

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rejected CHANGE 4 because it did not address (and thus did.not

\/ allege a deficiency-in) the ERP provisions for training and equipping emergency workers,53/ and because the fact that the training and equipment procurement was not completed at that time was legally irrelevant. Tr. 978-79.

On appeal, Mr. Eddleman recognizes that in the arena of emergency planning, the Commission has taken a different course on the appropriateness of " post-hearing" resolution of issues, and reliance upon predictive findings. Intervenors' Brief at 4, citing Louisiana Power and Light Company.(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1103 (1983). In Waterford, the Appeal Board relied in part on the Commission's 1982 amendments to its regulations, which clari-fied the predictive nature of its findings on emergency plan-ning required prior to license issuance. 17 N.R.C. at 1103.

The UCS decision, however, did not reverse, as Mr. Eddleman ar-

'. gues (Intervenors' Brief at 4), the basis for this holding.

! Pacific Gas and Electric Company (Diablo Canyon Nuclear Power i Plant, Units 1 and 2), ALAB-781, 20 N.R.C. 819, 834-35 (1984).

i To the contrary, the Court explicitly stated.that its holding l in no way reflects on the propriety or impropriety of the more 4

predictive standard adopted.54/ UCS v. NRC, supra, 735 F.2d at

53/ See Applicants' Response to CHANGE, supra n.48, at 14-15.

54/ When it amended its regulations to comply with the Court's decision, the Commission stated that "[t]he revision does not (Continued next page) l i

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_ 1445 n.14 (1984). Consequently, the Waterford decision, and

'~' the precedent cited therein, directly support the Licensing Board's decision rejecting CHANGE 4. See Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 N.R.C. 681, 710 (1985).

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F. CHANGE Contention 9 Proposed CHANGE Contention 9 criticized the ERP for its failure to provide for the potential adverse reaction on the part of the general populace from the administering of potassi-um iodide to emergency workers and institutionalized persons, and not the general public.55/ The Licensing Board rejected this proposed contention because it did not assert a credible basis for the theorized public uprising, or address resources described in the ERP which could respond to it if it did occur.56/ Tr. 979. Mr. Eddleman's appeal of this (Continued) change the general predictive nature of the Commission's find-ings on emergency planning and preparedness issues." 50 Fed.

Reg. 19323 (1985).

55/ CHANGE Contentions, supra n.46, at 4.

56/ The Licensing Board also cited the well-settled principle that the decision on whether or not to distribute potassium iodide to the general public is a matter of local prerogative.

Tr. 979; Union Electric Company (Callaway Plant, Unit 1),

ALAB-754, 18 N.R.C. 1333 (1983); Federal Policy on Distribution of Potassium Iodide Around Nuclear Power Sites for Use as a Thyroidal Blocking Agent, 50 Fed. Reg. 30258 (1985).

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determination is wholly unenlightening, and should not be seri-

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\- onely entertained.52/ The broad-brush charge that the Licens-See Intervenors'

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ing Board "went to the merits" is inaccurate.

Brief at 4. CHANGE 9, like many of its other proposed conten-tions, does not have an associated asserted basis because it does not confront the ERP.

G. Wilson Contentions 3 and 4 Mr. Eddleman purports to appeal the Licensing Board's re-jection of Dr. Wilson's proposed Contentions 3 and 4 with one

, conclusory sentence claiming that the Licensing Board "went to j the merits." Intervenors' Brief at 4. Those contentions J

j sought the addition to the ERP of more detailed information on the process of protective action decision-making by the State Emergency Response Team leader.58/ The ERP addresses the con-siderations involved in choosing among protective actions, and notes that the evacuation option entails risks of injury, cost

and inconvenience.59/ Dr. Wilson unrealistically sought to re-quire the reduction to writing of cost-benefit and disagreement

! resolution criteria which would tell the SERT leader what to 52/ See n.1, suora, i

58/ Contentions of Richard Wilson Concerning North Carolina Emergency Response Plan, dated April 13, 1984, at 2.

59/ Applicants' Response to Contentions of Richard Wilson Con-cerning North Carolina Emergency Response Plan, dated April 27, 1985, at 7-8.

)

4

choose in every emergency situation. Tr. 889-891. The Licens .

Y' ing Board properly rejected Wilson 3 and 4 because those con-tantions ignored information in the plan, and asserted no spe-cific, arguable or credible regulatory basis. Tr. 985-86.

H. Wilson Contentions 5(b), (c), (d) and (e)

It is asserted that Wilson proposed Contentions 5(b), (c),

I (d) and (e) "were rejected in violation of UCS and ALAB-732 in the same way CHANGE 4 was." Intervenors' Brief at 4. As Applicants explained above in response to the appeal on CHANGE 4, those decisions support the Licensing Board's rulings.

These contentions allege deficiencies in the public educa-tion and information provisions of th'e State and Wake County portions of the ERP.g0/ Subparts (b), (c) and (e) essentially complain that the public information brochure was not yet available.g1/ Dr. Wilson cited no basis for the proposition that other methods for public education and information must be utilized.g2/ Subpart (d) asserts no specific shortcomings in i

60/ Wilson Contentions, supra n.58, at 2-3.

gl/ The draft brochure was served later in the proceeding, and was the subject of proposed contentions. See LBP-84-29B, supra, 20 N.R.C. 399, 406 (1984) (establishing schedule for filing brochure contentions). Dr. Wilson filed none. See Rulings on Specification of Eddleman Offsite Emergency Planning

, Contention 215 and on the Admissibility of Eddleman Contentions i

on the Public Information Brochure, October 4, 1984.

12/ Applicants' Wilson Response, supra n.59, at 8-9.

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the methods proposed, but appears to call for a demonstration of effectiveness. No regulatory basis was advanced for this argument. Further, to the extent Dr. Wilson was alleging that public education efforts are not useful, he was challenging 10 C.F.R. 5 50.47(b)(7). The Licensing Board properly rejected these proposed contentions. Tr. 986-87.

I. Eddleman Contention 57-C-7 and CHANGE Contention 33 M::. Eddleman's appeal of the Licensing Board's rejection of his Contention 57-C-7 is based upon the allegation that the Licensing Board erred in rejecting the contention under GUARD

v. NRC, 753 F.2d 1144 (D.C. Cir. 1985).63/ Intervenors' Brief at 4. The short answer to this appeal is that the Licensing Board rejected Contention 57-C-7 for lack of specificity, and not for reasons related to the GUARD litigation. See Memoran-dum and Order (Concerning Arrangements For Medical Services),

January 7, 1986. This action is fully supported, and the Li-censing Board's decision should be affirmed.

63/ The GUARD decision vacated and remanded the Nuclear Reg-ulatory Commission's decision in Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),

CLI-83-10, 17 N.R.C. 528 (1983), as to the Commission's inter-J pretation of the phrase " arrangements . . . made for medical j services" in 10 C.F.R. 6 50.47(b)(12). Significantly, however, the Court did not specify what actions the Commission must take 1 on remand. The Commission subsequently issued Interim Guidance i to licensing boards on section 50.47(b)(12), but has not yet issued a final response to the GUARD remand. See 50 Fed. Reg. 20892 (May 21, 1985).

C:)

l

The procedural history of the Licensing Board's considera-tion of Contention 57-C-7 is lengthy and rather complex.64/

lhe Licensing Board originally ruled on the admissibility of the contention in LBP-84-29B, supra, 20 N.R.C. at 400-04 (1984). The Licensing Board rejected two parts of the proposed contention for reasons totally unrelated to the San Onofre and subsequent GUARD decisions. The Licensing Board did admit a revised contention concerning the issue of whether "the ERPs should at least show what medical services are available for those seriously injured by radiation alone." Id. at 403.

Applicants filed a motion for summary disposition of the admit-ted portion of the contention.65/ Mr. Eddleman did not file any response to Applicants' motion, and the motion was granted by the Licensing Board. In its order granting summary disposi-tion, the Licensing Board recognized the existence of the GUARD decision and provided the parties with a copy of it, but con-cluded that it did not appear to affect the Board's ruling.

Memorandum and Order (Ruling on Eleven Summary Disposition Mo-tions), February 27, 1985.

! 64/ A more thorough recitation of this procedural history is set forth in Applicants' Response to the Licensing Board's Order (Concerning Arrangements for Medical Services), dated December 30, 1985.

{ 65/ See Applicants' Motion for Summary Disposition of Eddleman 57-C-7, dated January 2, 1985, and attached affidavits of Fred A. Mettler, Jr., M.D., Dayne H. Brown and Jesse T. Pugh, III.

l (

Subsequently, on March 1, 1985, Mr. Eddleman filed a Mo-tion to Reconsider Re Contention 57-C-7, noting the issuance of the GUARD decision by the D.C. Circuit. In response to Mr.

Eddleman's motion to reconsider, the Licensing Board issued an order which directed the parties to address several questions, including exactly how any admitted contention should be worded.

Order (Concerning Arrangements for Medical Services), December 9, 1985. In response, Mr. Eddleman proposed a revised wording for Contention 57-C-7.66/ Applicants opposed admission of the revised Contention 57-C-7 for several reasons, including its-failure to set forth its basis with reasonable specificity, and the inappropriateness of further litigation on the medical ser-vices issue in the absence of final Commission action on the GUARD remand.67/ The Licensing Board rejected the revised pro-posed contention for lack of specificity. The reasons for the Licensing Board's action are well stated in its order. Memo-randum and Order (Concerning Arrangements for Medical Ser-vices), January 7, 1986. The Licensing Board found it unneces-sary to address other grounds for rejecting the contention.

Id. at 3. However, the Licensing Board noted that Applicants "have formally committed to full compliance with the i

66/ Wells Eddleman's Response on Contention 57-C-7 (Contami-nated Injured Individuals), dated December 23, 1985, at 1.

. 67/ Applicants' Response to the Licensing Board's Order (Con-cerning Arrangements for Medical Services), dated December 30, 1985.

(1) l 1 . _ _ . _ . . - . - - _ _ - - . - - . - . - -

1 Commission's ultimate response to the GUARD remand." Id.

l

) Thus, proposed Contention 57-C-7 was properly rejected-for rea-sons that do not involve the GUARD decision.

CHANGE proposed Contention 33 is similar in subject matter to Eddleman Contention 57-C-7; that is, it addresses the ade-  !

quacy of hospitals to treat injured persons.63/ At a May 2, I

i 1984 prehearing conference, the Licensing Board rejected the proposed contention on the basis of the Commission's holding in the San Onofre case. As the Chairman of the Licensing Board explained: "The Commission's decision arising in the San onofre case says that the obligation imposed by this portion of the rule, and I think it is subparagraph 12, obligates the state and local planners to include in the plans what facili-

.i ties are in fact there, but there is no obligation to make judgments about their adequacy." Tr. 999-1000.

The Licensing Board's decision was, of course, issued well j before the D.C. Circuit's decision in GUARD.69/ Although the i

Licensing Board provided all the parties with copies of.the

GUARD decision when it was subsequently issued, neither Mr.

Eddleman nor CHANGE ever sought reconsideration of the previous i

I 6g/ See Supplement to Pe,tition for Leave to Intervene of In-tervenor CHANGE Regarding the North Carolina Emergency Response

. Plan (Feb. 1984) in Support of SENPP, dated April 5, 1984, at

9-10.

1 69/ To the extent Mr. Eddleman believes that the Licensing l Board's action came after the GUARD decision (Intervenors' l Brief at 4), that belief is incorrect. l I

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i i

I

.~---.-n , - - , - - - .,,,,,,,-,.--n-,n----n- ,

_ - _ _ . _ -nn,,nnn

rejection of Contention 33. Accordingly, CHANGE and Mr.

kJ Eddleman should be deemed to have waived any right to seek relitigation of the contention on that hasis at this time --

nearly one year after the GUARD decision issued.

Further, litigation of CHANGE 33 would be inappropriate now for the same reasons that Applicants have argued that fur-ther litigation of Eddleman Contention 57-C-3 would be improp-er. If the Licensing Board sought to litigate medical services issues that go beyond the pre-GUARD interpretation, it would risk interpreting 10 C.F.R. $ 50.47(b)(12) in a manner that is inconsistent with whatever action the Commission ultimately takes on remand. In addition, further litigation is barred under principles established by the Appeal Board that preclude licensing boards from accepting contentions "which are (or are about to become) the subject of general rulemaking by the Com-mission." Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C.

79, 85 (1974).70/ For these reasons, the Licensing Board's re-jection of CHANGE Contention 33 should be affirmed.

70/ See Applicants' Response to the Licensing Board's Order (Concerning Arrangements for Medical Services), dated December 30, 1985, at 6-11, for a more detailed discussion of the rea-sons why a medical services contention should not have been entertained by the Licensing Board.

O

J. Contentions Wilson 1, CHANGE 23,_Eddleman 57-C

(} and 57-C-2 Mr. Eddleman challenges the Licensing Board's decisions rejecting several proposed contentions on the boundary of the plume exposure pathway Emergency Planning Zone for-the Harris Plant. Intervenors',Brief at 5.

Wilson proposed Contention 1 and CHANGE proposed Conten-tion 23 are similar in that they do not assert any deficiency in the EPZ boundary, but rather fault the ERP for not including a discussion to justify how the factors in 10 C.F.R.

$ 50.47(c)(2) were weighed by the local planners who selected the boundary.71/ Section 50.47(c)(2) establishes that the plume EPZ shall consist of an area of approximately 10 miles in radius around each nuclear power plant, and states that the

. . . exact size and configuration of the EPZs surrounding a particular nuclear power reactor shall be determined in relation to local emergency response needs and capabil-ities as they are affected by such condi-tions as. demography, topography, land char-acteristics, access routes, and jurisdictional boundaries.

The considerations involved in the choice of the EPZ boundary are identified in the ERP.72/ Neither CHANGE nor Dr. Wilson 71/ CHANGE Contentions, supra n.46, at 7; Wilson Contentions, supra n.58, at 1. Wilson 1 inaccurately describes the EPZ boundary as being a uniform 10 miles from the plant. See Applicants' Response to Contentions of Richard Wilson Concern-ing North Carolina Emergency Response Plan, dated April 27, 1984, at 2-4.

72/ See Applicants' Response to CHANGE, supra n.48, at 40-41.

-eo-O i

i

=

asserted any basis for their essentially legal argument that O the plan must recite how each of those factors was utilized in arriving at the boundary. Further, they did not address one of the factors in section 50.47(c)(2), and assert with basis and specificity that the boundary in some particular way does not adequately reflect its influence. On those grounds, and be-cause the contentions otherwise challenge the Commission's reg-ulation, the Licensing Board correctly rejected CHANGE 23 and Wilson 1. Tr. 982, 984-85. On appeal, Mr. Eddleman terms these rulings arbitrary and capricious, but does not advance any basis for his opinion. See Intetvenors' Brief at 5.

Eddleman proposed (revised) Contentions 57-C and 57-C-2 seek a 25-mile radius plume EPZ in the direction of Raleigh and Research Triangle Park, solely because of prevailing wind pat-terns.73/ The Licensing Board ruled that these proposed con-tentions constituted an impermissible attack 74/ on the "about 10 miles" requirement of 10 C.F.R. 5 50.47(c)(2). Further Rulings on Admissibility of offsite Emergency Planning Conten-tions Submitted by Intervenor Eddleman, at 6-7 (June 14, 1984).

This holding is clearly correct. Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-781, 20 N.R.C. 819, 830-31 (1984).

73/ Wells Eddleman's Contentions on the Emergency Plan (2d Set), dated April 12, 1984, at 4. See also Applicants' Answer to Eddleman Proposed Contentions on SHNPP Emergency Response Plans, dated April 28, 1984, at 13-15.

74/ See 10 C.F.R. $ 2.758.

( .

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I Not having established on appeal that the Licensing

~

Board's rulings on any of these four defective contentions was erroneous, Mr. Eddleman makes the argument that the Licensing Board should have searched among the four and fashioned an i

acceptable contention from bits and pieces of each.25/ Inter-venors' Brief at 5. This is not the Licensing Board's job.

Commonwealth Edison Company (Zion Station, Units 1 and 2),

ALAB-226, 8 A.E.C. 381, 406-07 (1974). The intervenors had every opportunity, and in fact were encouraged, to revise and consolidate their contentions. It is incumbent upon interve-nors who wish to participate in NRC proceedings to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions.

Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553 (1978). The Licensing Board's decisions on these proposed contentions should be af-firmed.

25/ Where the Licensing Board did draft Emergency Planning Joint Contentions, it did so from one or more acceptable underlying contentions.

O

K. Eddleman Proposed Contentions 57-D-1, 2 and 3

. /~\

w)

Mr. Eddleman argues that the Licensing Board erred in re-jecting his proposed Contentions 57-D-1, 2 "or" 3, which Mr. Eddleman asserts, without any elaboration whatsoever, have adequate basis and specificity. Intervenors' Brief at 5. The issues raised by the contentions are not even mentioned, and the Licensing Board decisions are not cited. See id. It is far from certain that this appeal should be addressed at all.

See Appeal Board Order (unpublished) at 4 (Oct. 31, 1985).

Applicants address this appeal briefly, in the event it is entertained.

57-D-1 and 57-D-2 alleged, in essence, that' evacuation of the EPZ cannot be accomplished quickly enough.76/ The evacua-tion time estimates, as the Licensing Board found, "are not done to show that certain limits can be met, but to provide

' guidelines for the choice of protective actions in an emergen-cy.' See 10 C.F.R. $ 50.47(b)(10)." Further Rulings on Admis-sibility of Offsite Emergency Planning Contentions Submitted by Intervenor Eddleman, at 23 (June 14, 1984); see also The Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730, 17 N.R.C. 1057, 1069 n.13 (1983). The Licensing 76/ Wells Eddleman's Contentions on the Emergency Plan (2d Set), dated April 12, 1984, at 4-5. See Applicants' Answer to ,

j Eddleman Proposed Contentions on SENPP Emergency Response Plans, dated April 28, 1984, at 38-39.

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i

. Board correctly rejected these contentions because they clearly

)

misconceive and misapply-Commission regulations. See id.

Grand Gulf, supra, ALAB-130, cited by Mr. Eddleman, is not re-motely relevant here.

j 57-D-3 questioned accident assessment capability (i.e.,

monitoring of the radioactive plume) "if the wind changes

! direction."72/ The Licensing Board correctly rejected this I

proposed contention because it ignored, and thereby failed to i assert a specific deficiency with basis in, the plans' provi-sions for acquiring and evaluating meteorological information I

for dose projections. Further Rulings, supra, at 11-12 (June 14, 1984).

4 L. Eddleman Contentions EPX-4, 9, 10 and 11.

I  !

l 1. Introduction l

I on May 17 and 18, 1985, the pre-licensing full participa-tion emergency planning exercise, required by 6 IV.F of Appen-l dix E to 10 C.F.R. Part 50, was conducted for the Shearon l Harris Nuclear Power Plant. The overall FEMA findings on the i exercise vers that:

I i

, 72/ Eddleman Contentions, supra n.76. See Applicants' Answer,

. supra n.76, at 22-23.

O

The State and local en ergency plans are adequate and capable o ! being implemented,

()

and the exercise demon'trated that offsite preparedness is adequare to provide reason-able assurance that appropriate measures can be taken to protect the health and safety of the public living in the vicinity of the Shearon Harris. Nuclear Power Station in the event of a radiological emergency.

LBP-85-49, supra, slip op, at 17. Nevertheless, intervenor Eddleman proposed twelve contentions based on the exercise.28/

The Licensing Board rejected ten and admitted two f.>r adjudica-tion (which have not yet been decided). Id. at 14-24.

Mr. Eddleman appeals the rejection of four of his proposed con-tentions. Intervenors' Brief at 6.

2. Standard Applicable to Proposed Exercise Contentions The Licensing Board decided that additional considerations

-- beyond the Commission standards applicable to all untimely contentions -- apply to proposed contentions based on an emer-gency planning exercise. The Licensing Board observed that the exercise comes near the end of a lengthy public evaluntion pro-cess designed to surface serious planning defects.29/ ,

LBP-85-49, supra, slip op. at 15.

Zo/ Contentions based on Emergency Planning Exercise, de ced September 30, 1985.

29/ In this case, that process has included the adjudication of over thirty admitted emergency planning contentions.

O

1 l

l Turning to the decision in UCS v. NRC, supra, which va-

's

'/

cated the Commission's 1982 regulation excluding exercises from the adjudicatory process, the Licensing Board noted the follow-ing from the Court's opinion:

...[t]he Commission argues throughout its brief that the exercise is only relevant to its licensing decision to the extent it in-dicates that emergency preparedness plans are fundamentally flawed, and is not rele-vant as to minor or ad hoc problems occur-ring on the exercise day. Today, we in no way restrict the Commission's authority to adopt this as a substantive licensing stan-dard.

735 F.2d at 1448 (footnote omitted). Following this sugges-tion, the Licensing Board held that exercise contentions alleg-ing a " fundamental flaw" should be admitted, while contentions alleying only minor or readily correctable problems should be rejected. LBP-85-49, supra, slip op, at 16.

Applicants endorse the " fundamental flaw" standard uti-lized by the Licensing Board. We are less certain than the Li-censing Board, however, that it represents a meaningful depar-ture from the standards applicable to other contentions.go/

Applicants are also more confident than the Licensing Board may have been that the " fundamental flaw" standard already has Com-mission endorsement.31/

80/ See LBP-85-49, supra, slip op. at 16 (contentions may be rejected even if they might have been admitted at an earlier stage), 17 n.1 (reference to novel legal questions).

81/ The Licensing Board stated that the Commission has not r' formally" adopted such a substantive licensing standard. LBP-85-49, supra, slip op. at 17 n.1.

() - -

It is axiomatic that a proposed contention must be materi-O al to the regulatory findings which precede licensing.g2/

Emergency planning exercises have been deemed by the Commission to be material to reaching the regulatory finding of

' ~

" reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. $ 50.47(a)(1) (emphasis supplied).g3/ As the Commission has stated, serious and significant exercise deficiencies which have not been compensated for and which go to the fundamental nature of the emergency plan itself would call into question whether reasonable assurance may be found that public health and safety will be adequately protected in a radiological emer-l gency. 47 Fed. Reg. 30232, 30234 (1982).

However, some deficiencies may be found that only reflect the actual state of pre-paredness which may be easily remedied; these types of deficiencies should not delay licensing action.

Id.84/

82/ See Public Service Company of New Hampshire (Seabrook Sta-tion, Units 1 and 2), LBP-82-106, 16 N.R.C. 1649, 1654-55 (1982).

83/ No emergency planning contention is admissible in an oper-ating license proceeding unless it would cast doubt on this

' finding.

@4/ In the same vein, the Commission stated that it distin-guishes between " fundamental defects" which call into question whether the requirements of 10 C.F.R. S 50.47 can or will be met, and deficiencies which only reflect the actual state of emergency preparedness on a particular day in question, but which do not represent some " basic flaw" in emergency planning.

47 Fed. Reg. at 30233 (1982).

O

k Thus; the Commi~ssion has made clear that it judges exer-cises by the " fundamental flaw" rtandard when it considers

, their contribution to its " reasonable assurance" finding for emergency preparedness. It has also made clear that easily remedied deficiencies do not cast doubt upon the regulatory findings. If exercise contentions, like all others, are to re- ,

late to the ultimate findings required'for licensing, then the standard followed by the Licensing Board here is correct, is consistent with the approach used to assess contentions on i other issues, and is based upon the standard enunciated and followed by the Commission.

On appeal, Mr. Eddleman does not question the appropriate-ness of the standard used by the Licensing Board, but rather its authority to apply it. Intervenors' Brief at 6.

j Mr. Eddleman provides no support for this argument. Clearly, ruling upon proposed contentions in the first instance is a I part of the Licensing Board's delegated authority and responsibilites. In fact, referrals of such rulings to higher l Commission authority are disfavored. See Duke Power Comoany (Catawba Nuclear Station, Units 1 and 2), ALAB-768, 19 N.R.C.

988 (1984).

l

3. The Contentions i

The Licensing Board correctly rejected Eddleman proposed Contentions EPX-4, 9, 10 and 11 for lack of regulatory basis, i

l CE)

because they allege " minor, ad hoc, correctable problems" h'. - which, "[ejven if substantiated, . . . would not represent

' fundamental flaws'." LBP-85-49, supra, slip op. at 18-21.

For example, EPX-4 is directed at the fact that some of the individuals performing decontamination for one of the four involved counties had not yet been trained. That county has committed to the training.g5/ EPX-9 addresses one evaluator's comment that additional training in two areas would be "benefi-cial," but ignores the conclusions of adequate performance.gs/

The Licensing Board correctly diagnosed EPX-10 and 11 as rais-ing readily correctable and insubstantial issues as well.

Zh9 Licensing Board did not need to pass upon Applicants' argument that EPX-4 and 11 were filed without good cause for their untimeliness. Applicants argued below that the subjects were discussed at a FEMA post-exercise public meeting on May 19, 1985.g7/ Applicants served the transcript of that meeting on Mr. Eddleman on June 11, 1985. His filing of September 30, 1985, therefore was inexcusably late as to these contentions.gp/ See 10 C.F.R. 5 2.714(a)(1)(i).

g5/ Applicants' Response to Eddleman Proposed Contentions Based On Exercise, dated October 15, 1985, at 19.

g6/ Id. at 24-25.

g7/ See id. at 25-28.

gg/ Id. at 31-32, 34.

O

I CONCLUSION f-s v

\.

For all of tihe foregoing reasons, the Licensing Board's decisions should be affirmed.

Respectfully submitted,

/

Thomas A. Baxter, P.C.

John H. O'Neill, Jr., P.C.

Delissa A. Ridgway Pamela H. Anderson SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Applicants Dated: March 17, 1986 O

/

1%EN8TEh7, 1986 (gy USNRC UNITED STATES OF AMERICE MAR 18 P1 :22 NUCLEAR REGULATORY COMMISSION OFFICE i; Yvr" . . '

00CKETr.;. .

1 l

BEFORE THE ATOMIC SAFETY AND LICENSING APPRAL: BOARD j In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Brief in Reply to Intervenors' Appeal from the Partial Initial Decision on Emergency Planning and Safety Contentions" were served this 17th day of March, 1986, by deposit in the U.S. mail, first class, postage prepaid, to the parties on the attached Service List.

Thomas A. Baxter, P.C.

O l

l

t O ,

UNI = S==

NUCLEAR REGULATORY COMMISSION Or ==ICA BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

CAROLINA POWER S LIGHT COMPANY ) Docket No. 50-400 OL and NORTR CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

) -

(Shearon Barris Nuclear Power )

Plant) )

4 SERVICE LIST Thomas S. Moore, Esquire Charles A. Barth, Esquire Chairman Janica E. Moore, Esquire Atomic Safety and Licensing Office of Executive Legal Director Appeal Board U.S. Nuclear Regulator'y Commission U.S. Nuclear Regulatory Commmission Washington, D.C. 20555 ,-

Washington, D.C. 20555 Docketing and Service Section Dr. Reginald L. Gotchy Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Daniel F. Road, President t CHANGE l Mr. Howard A. Wilber P.O. Box 2151  ;

At'omic Safety and Licensing Raleigh, North Carolina 27602 Appeal Board l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John D. Runkle, Esquire Conservation Council of James L. Kelley, Esquire North Carolina Atom e Safety and Licensing Board Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 M. Travis Payne, Esquire Edelstein and Payne Mr. Glenn O. Bright P.O. Box 12607 Atomic Safety and Licensing Board Raleigh, North Carolina 2760-U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Richard.D. Wilson 729 Hunter Street l Dr. James H. Carpenter Apex, North Carolina 27502 Atomic Safety and Licensing Board O U.S. Nuclear Regulate'ry Commission Washington, D.C. 20555 ,

- ,_,_,.g,_._.._ _ . , - - _ , , _ , , _

O Mr. Wells Eddleman 812 Yancey Street Durham, NC 27701 Richard E. Jones, Esquire Vice President and Senior Counsel Carolina Power & Light Company P.O. Box 1551 Raleigh, North Carolina 27602 Dr. Linda W. Little Governor's Waste Management Board 513 Albemarle Building 325 North Salisbury Street Raleigh, North Carolina 27611 Bradley W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 Jo Anne Sanford, Esquire Special Deputy Attorney General P.O. Box 629 Raleigh, North Carolina 27602 Joseph Flynn, Esquire FDM 500 C Street, S.W., Suite 480 Washington, D.C. 20740 .

Steven Rochlis, Esquire Regional Counsel fella 1371 Peachtree Street, N.E.

Atlanta, Georgia 30309 l

($)

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