ML20138D372
| ML20138D372 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 10/22/1985 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#485-872 ALAB-819, LPB-84-31, OL, NUDOCS 8510230255 | |
| Download: ML20138D372 (101) | |
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UNITED STATES OF AMERICA D00'7'D NUCLEAR REGULATORY COMMISSION 2 6- OCT 2219855" [?
ATOMIC SAFETY AND LICENSING APPEAL BOAF DoccTma s x EDL"C:'
" ERANCl!
- C Administrative Judges: s Christine N. Kohl, Chairman October 22, o)
Gary J. Edles (ALAB-819)
Dr. Reginald L. Gotchy SERVED OCT 231385
)
In the Matter of )
)
PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352 OL
) 50-353 OL (Limerick Generating Station, )
Units 1 and 2) )
)
Charles W. Elliott, Easton, Pennsylvania, for intervenor Limerick Ecology Action, Inc.
Frank R. Romano, Ambler, Pennsylvania, for intervenor Air and Water Pollution Patrol.
Robert L. Anthony, Moylan, Pennsylvania, intervenor pro se and for intervenor Friends of the Earth.
Mark J. Wetterhahn, Washington, D.C. (with whom Troy B. Conner, Jr., and Robert M. Rader, Washington, D.C., were on the brief), for applicant Philadelphia Electric Company.
Benjamin H. Vogler (with whom Ann P. Hodgdon was on the brief) for the Nuclear Regulatory Commission staff.
DECISION Intervenors Limerick Ecology Action, Inc. (LEA), Air and Water Pollution Patrol (AWPP), and Robert L.
Anthony / Friends of the Earth (Anthony / FOE) each appeal from the Licensing Board's 1984 second partial initial decision (LBP-84-31, 20 NRC 446) and related orders entered in this operating license proceeding. In those decisions and orders, the Board resolved numerous technical, 8510230255 051022 PDR ADOCK05000gg2 TSOA
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2 environmental, and onsite emergency planning issues in favor of applicant Philadelphia Electric Company (PECo) and authorized the issuance of a low-power license for the Limerick facility.1 The pending appeals challenge the Licensing Board's rulings in a total of nine different areas. PECo and the NRC staff oppose the appeals. For the reasons set forth below, we affirm LBP-84-31 and related orders in all respects except one. Insofar as the medical arrangements in PECo's onsite emergency plan are concerned, we reverse and remand for further action.2 I. LEA's Appeal All but two of LEA's arguments concern the adequacy of the environmental review in connection with PECo's operating license application. LEA contends that the Licensing Board improperly excluded consideration of design alternatives to mitigate severe accidents, the risk of sabotage, and certain socioeconomic impacts. It also argues that the consideration of human health impacts was inadequate. In its remaining arguments, LEA contends that I
We denied requests to stay this decision in ALAB-789, 20 NRC 1443 (1984).
2 In an earlier phase of this case, we reviewed and ultimately affirmed the Licensing Board's decisions concerning the environmental impacts of the supplementary cooling water system for Limerick. See ALAB-785, 20 NRC 848 (1984); ALAB-804, 21 NRC 587 (1985).
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PECo's onsite emergency plan violates Commission regulations, the Atomic Energy Act, and the Administrative Procedure Act (APA) in certain respects. We address each point in turn.
A. Severe Accident Mitigation Design Alternatives In its contention DES-5, LEA claimed that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. S 4321, and pertinent Commission regulations require consideration of design alternatives for the mitigation of severe accidents at Limerick. Because the plant is located in an area of relatively high population density, LEA asserted that such an accident would thus pose greater risk to the public. LEA cited NRC staff-sponsored studies, in which the cost-effectiveness of possible mitigating design features is under examination, as the bases for its contention. See LEA Contentions on the Environmental Assessment of Severe Accidents (February 13, 1984) [hereafter, " LEA DES Contentions") at 11-13.
The Licensing Board, however, refused to admit the contention because it did not satisfy the Commission's requirements of basis and specificity. See 10 C.F.R.
S 2. 714 (b) . In the Board's view, DES-5 was just too~
general: LEA failed to describe a particular, cost-effective-design alternative for a particular accident sequence. The fact that the staff had under way certain
" generic" studies of the matter, according to the Board, did
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not render the contention admissible. Tr. 8776-78, 9471-75; Licensing Board Order of April 20, 1984 (unpublished), at 1, 3.
On appeal, LEA stresses that the staff's own studies, done under contract, identify severe accident mitigation design alternatives specifically for the Limerick facility.
In particular, R&D Associates (RDA) under Contract No.
NRC-03-83-092 is analyzing the cost-effectiveness of features such as a filtered-vented containment system. LEA argues that NEPA, as well as Commission and Council on Environmental Quality (CEQ) regulations, require consideration of these alternatives, which might significantly mitigate the. risk of a severe accident at Limerick. Brief in Support of Appeal of Limerick Ecciogy Action, Inc. (October 4, 1984) [hereafter, " LEA Brief"] at 2-10.
We are inclined to agree with LEA that the NRC-sponsored studies on severe accident mitigation, which LEA identified or submitted to the Licensing Board, together provide enough basis and specificity for the admission of contention DES-5. NUREG/CR-2666, "PWR Severe Accident 1
3 LEA also briefly argues that the " record of decision" for environmental purposes is deficient due to this failure to consider alternatives. LEA Brief at 47-48. See 10 C.F.R. S 51.103.
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Delineation and Assessment" (January 1983) , contains a chapter devoted to mitigation features specifically for Limerick.4 It suggests that a filtered-vented containment system or containment spray system could lower the risk from a severe accident. But the discussion is largely qualitative (rather than quantitative), and no cost-benefit analysis for any design feature is performed. NUREG/CR-2666 at 7-1 to 7-15, 8-5.
The RDA study, however, is more enlightening. The September 15, 1983, status report on the project states:
For Mark II containment as exemplified by the Limerick Plant, mitigation requirements (functions) have been identified, incl. ding containment heat removal, core residue capture and retention without concrete attack, and (if ATWS [ anticipated transients without scram]
events are to be mitigated) some kind of venting system. Candidate components to fulfill these requirements have been selected for preliminary conceptual design and cost estimation. Separate cost figures will be generated for 1) Plants before construction begins, 2) Plants built but not yet in operation, and 3) Operational plants.
LEA's Reply to Applicant and Staff Response (October 10, 1983), Attachment (Letter to C.W. Elliott from J.M. Felton (October 3, 1983), Enclosure at 4). By March 15, 1984, the 4
This is so despite the facts that Limerick is a boiling water reactor (BWR) and the title of NUREG/CR-2666 refers only to pressurized water reactors (PWR).
5 The authors of NUREG/CR-2666 did not include consideration of the containment spray system currently installed at-Limerick. NUREG/CR-2666 at 7-9.
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preliminary design and cost analysis for several particular mitigation systems were completed, and the methodology for a quantitative value/ impact (i.e., cost-benefit) analysis was formulated. Letter to C.W. Elliott from J. Rutberg (March 22, 1984), Enclosure (Monthly Project Status Report (March 15, 1984) at 3-4) .6 Although the RDA project was not due to be completed until late September 1985, the interim material available to the Licensing Board at the time of its ruling on contention DES-5 appears to have satisfied the threshold basis and specificity requirements for admission of the ,
contention; that is, particular design changes that might be cost-effective were at least identified. Whether that would ultimately be proven on the merits is another matter. That, however, is not the appropriate inquiry at the contention-admission stage. Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1) , ALAB-590, 11 NRC 542, 546-49 & n.10 (1980).7 The RDA status reports were submitted to tae Licensing Board and were incorporated by reference in various LEA filings.
7 The Licensing Board did not give much weight to the staff-sponsored RDA studies LEA cited because the studies were still under way and the staff considered them to be c
" generic." See Tr. 9451, 9453-54, 9472. But despite the j staff's generic label, the RDA studies included Mark II i containments (such as Limerick) and used Limerick as a case l study. Tr. 9451. Further, although the RDA work was not yet final, it had progressed enough by the time of the l (Footnote Continued) l
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Although the Licensing Board thus erred in excluding
. contention DES-5 for the reason it stated -- i.e., the lack of basis and specificity -- we do not reverse'and remand for further consideration of that matter. For the litigation of ;
I contention DES-5 is, in any event, precluded by Commission l policy. At the time of the Board's ruling, the Commission had proposed a policy statement on severe accidents. See 48 Fed. Reg. 16,014 (1983) [hereafter, " Proposed Severe Accident Policy"). In it the Commission noted the several extensive research programs under way to reduce the uncertainty in risk calculations.and to explore the feasibility of certain engineered safety features. But the Proposed Severe Accident Policy also pointed out that this research had "not yet produced significant new insights into consequence mitigation features sufficient to support further regulatory changes . . . ." Id. at 16,018.
Consequently, the Commission stated that "the capability of current designs or procedures (or alternatives thereto) to (Footnote Continued)
-Board's consideration of DES-5 so that " idealized mitigation opportunities in Mark IIs" and "what they might cost" could-be identified. Tr. 9453. 'That material provides at least as much basis and specificity as did the Federal Energy Administration report on which intervenors relied in Allens I
Creek, 11 NRC at 547.
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in case-related safety hearings." Ibid.8 The Commission's Proposed Severe Accident Policy was recently made effective (in modified form) following i consideration of public comments, and it dictates our ruling i l here. See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, f
i 82-83' (1974). As in the proposed version, the now-enacted .
policy statement finds no undue risk to the public health-s and safety and "no present basis for immediate action on ,
i generic rulemaking or other regulatory changes for j
[ existing] plants because of severe accident risk." 50 Fed.
Reg. 32,138, 32,143 (1985) [hereafter, " Severe Accident Policy Statement"]. Further, the Commission explicitly removes plant-specific reviews of severe accident' I vulnerabilities as "a necessary or routine part of an l Operating License review." Id. at 32,144.9 Accordingly, it 1
l reiterates its earlier expressed position that severe l
i 8'In rejecting an earlier version of DES-5 ( LEA ' ,s
! contention I-60),.the Licensing Board relied, in part, on i the Proposed Severe Accident Policy._ LBP-83-39, 18 NRC 67,
! 87-88 (1983).
9 Thus, because severe accident mitigation is not material to its licensing decisions, the Commission can -
properly exclude this issue from adjudicatory hearings.
Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1444-51 (D.C. Cir. 1984), cert. denied, ~~U.S. , 105 S.Ct. 815 t (1985); Siegel v. AEC, 400 F.2d 778, 78315'(D.C. Cir.
1968).
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accident mitigation measures, beyond already existing Commission requirements, "should not be addressed in case-related safety hearings." Id. at 32,145.10
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This is not to say that severe accident mitigation is being ' ignored. As the Commission points out in both the proposed and promulgated versions of the policy statement, extensive research in this area -- evidenced by the very studies LEA cites -- is ongoing. "Should significant new safety information develop, from whatever source,.which brings into question the Commission's conclusion that existing plants pose no undue risk, then at that time the specific technical issues suggesting undue vulnerability will undergo close examination and be handled by the NRC under existing procedures for issue resolution including the 0
LEA argues that the Policy Statement does not apply to DES-5 because in both the proposed and final versions the Commission refers.to " safety hearings" and LEA's contention raises environmental -- not safety -- issues. See App. Tr.
114-15. We think LEA reads the Commicsion's statement too narrowly. It is unreasonable to believe the conmission intended to preclude litigation of severe accident mitigation measures under the rubric of safety issues, while permitting the litigation of the same subject matter as an environmental issue. This is especially so, given Commission precedent holding that NEPA could not logically require more than the safety provisions of the Atomic Energy Act, and court precedent recognizing the inherent interrelationship of these statutes and thus issues raised under each. See Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 NRC 14, 39 (1979); Citizens for Safe Power, Inc. v. NRC,, 524 F.2d 1291, 1299-1300 (D.C. Cir. 1975).
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10 possibility of generic rulemaking where this is
- justifiable." Id. at 32,144.11 We also note that, despite the exclusion of contention DES-5, the possible risks posed by the Limerick facility have received considerable attention from the staff. In accordance with the Commission's Statement of Interim Policy on " Nuclear Power Plant Accident Considerations under the-National Environmental Policy Act of 1969," 45 Fed. Reg.
40,101, 40,103 (1980) [h,ereaf ter , " Interim NEPA Policy"],
1 the final environmental impact statement for Limerick j includes consideration of the environmental risks of both
" design-basis" accidents and those that would be more On appeal (LEA Brief at 5), LEA refers to a portion
]- of the Proposed Severe Accident Policy that states: "[i]n future CP [ construction permit] applications . . . ,
4 filtered-vented containment systems, or a variation of such
! systems, should be provided if these yield a cost-effective reduction in risk." 48 Fed. Reg. at 16,019. See also id.
(This language does not appear in the actual-4 at 16,020.
policy statement as enacted.) LEA claims that severe accident mitigation systems, such as a filtered-vented
, containment system, cannot therefore be considered " remote"
! or'" speculative" and must be considered here. We agree that the. concept of such systems is not remote, but that is a far l cry from a determination that they are feasible and j
cost-effective. The purpose of the ongoinc research is to analyze just that. See, e.g. , Consolidatec. Edison Co. of
! New York (Indian Point, Unit No. 2) , CLI-85-6, 21 NRC 1043, 1073 (1985). The fact that the Commission has directed j consideration of these systems in " future CP applications"
- (none of which has been filed since the late 1970s) is in no l way inconsistent with its conclusion to preclude their i consideration in the licensing of existing plants.
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probabilistic risk assessment (PRA) of Limerick was performed. See NUREG-0974, " Final Environmental Statement" (April 1984) [hereafter, "FES"], at 5-73 to 5-126.13 Based on several factors including the results of the PRA, the staff has concluded that the likelihood of a severe accident at Limerick is "small and comparable to that of other reactors." Id. at 5-126.14 The staff goes on to state generally that, "(b]ased on the . . . considerations of environmental impacts of accidents, which have not been found to be significant, [it] has concluded that there are no special or unique circumstances about the Limerick site 12 Such severe accidents were formerly termed " Class 9" and were not considered in the environmental reviews of proposed plants because of their low probability of occurrence. They postulate significant deterioration of the fuel and of the ability of the containment structure to limit radioactive releases into the environment.
13 Because Limerick is located in an area of relatively high population density, it is one of the few plants for which a PRA has been performed. The Commission recently described PRAs as "not empirically verifiable," but nevertheless " helpful' supplement [s] to engineering judgment" and "'very powerful tools for identifying strengths and weaknesses in reactor safety.'" In3ian Point, 21 NRC at 1057.
14 The additional factors considered by the staff are set forth in the FES at 5-126.
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12 and environs that would warrant consideration of alternatives for Limerick Units 1 and 2." Ibid.15 This additional, special attention devoted to the possibility of a severe accident at Limerick was undertaken as a matter of Commission di'scretion. It is not required by NEPA and has only served to confirm the Commission's view of the low risk posed by the facility. See San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1301 (D.C. Cir.
1984), vacated in part and reh'q en banc granted on other grounds, 760 F.2d 1320 (1985). A fortiori, consideration of possible design alternatives to mitigate a severe accident is not required either. Thus, the exclusion of LEA contention DES-5 violates neither NEPA nor any regulation promulgated pursuant to it.
B. The Risk of Sabotage Neither PECo's nor the staff's environmental review of Limerick considered the effects of sabotage because "such an 15 A further staff review of the' Limerick PRA revealed several areas where cost-effective improvements could reduce Limerick's vulnerability with respect to core damage
, accidents. The staff has found PECo's response to these
! concerns reasonable and acceptable. See NUREG-1068, " Review l Insights on the Probabilistic Risk Assessment for the Limerick Generating Station" (August 1984), at 7-1 to 8-5.
(The preparation of this document was briefly discussed at the hearing (see Tr. 9424-49), but the report itself was not
! completed until after the hearing concluded and about the l time the Board issued the decision before us on appeal. It was, however, served on all parties by Board Notification 84-147 (September 17, 1984), and no party sought to reopen the record to pursue any of the report's findings.)
- t 13 analysis is considered to be beyond the state of the art of A portion of probabilistic risk assessment." FES at 5-74.
LEA's contention DES-6 claimed that the exclusion of a sabotage-initiated accident scenario violates NEPA and Commission policy and regulations.16 As the basis for this contention, LEA submitted a one and one-half page excerpt of a report prepared by Steven Sholly of the Union of Concerned (SARA) for Scientists on the Severe Accident Risk Assessment Limerick. In this report, Sholly concludes that a sabotage risk analysis could be performed. LEA DES Contentions at 14; Letter to Licensing Board from J.A. Dorsey (August 31, 1983), Enclosure (hereafter, " LEA SARA Contentions"] fol.
21.
The Licensing Board, however, rejected the sabotage portion of contention DES-6. It determined that various Commission policy statements militate against litigation of such an issue. The Board referred specifically to the Proposed Severe Accident Policy, 48 Fed. Reg. 16,014, and the Commission's policy statement on the " Safety Goal Development Program," 48 Fed. Reg. 10,772 (1983) [hereafter,
" Safety Goal Policy"). Tr. 8778-80; Order of April 20 at 1, Contention DES-6 also concerned another issue, not raised here on appeal.
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- 3. In the latter policy statement, the Commission expressly excludes consideration of the possible effects of sabotage from its " safety goal" because "[ alt present there is no basis on which to provide a measure of risk on [this matter)." 48 Fed. Reg, at 10,773.17 The Proposed Severe Accident Policy takes note of this, but suggests that, in the future, applicants for standard design approvals or construction permits should nevertheless address the issue of sabotage in their Safety Analysis Reports. 48 Fed. Reg.,
at 16,020.
On appeal, LEA criticizes Commission policy as evidencing a " reluctance to confront the issue" of sabotage.
LEA Brief at 14. It also argues that both NEPA and a CEQ regulation, 40 C.F.R. S 1502.22, require consideration of sabotage as part of a " worst case" analysis -- even though there may be uncertainties in the data on which a sabotage risk analysis would be based. In LEA's view, a potentially catastrophic event (i.e., a severe accident triggered by sabotage) cannot properly be excluded from the environmental review simply because the likelihood of its happening is remote.
i 17 It is noteworthy that even the safety goals and design objectives that are included in the Commission's Safety Goal Development Program are "not to be litigated in the Commission's [ licensing) hearings." 48 Fed. Reg. at i 10,775.
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15 We conclude that the Licensing Board did not err in excluding LEA's sabotage contention. At the outset, it is important to place the contention in proper perspective. As already discussed above in Part I.A and as the staff points "
out in its brief, the FES does, in fact, consider a whole range of design-basis and severe accident scenarios. See NRC Staff's Response in Opposition to the Appeals (January 7, 1985) (hereafter, " Staff Brief"] at 58. Insofar as this review -- undertaken pursuant to the Commission's Interim NEPA Policy -- encompasses severe (beyond design-basis) accidents, it is not even required by NEPA. San Luis Obispo Mothers for Peace, 751 F.2d at 1301. LEA does not explain what separate consideration of sabotage as an initiator of such a severe accident would add, from a qualitative standpoint, to this discretionary environmental review. It would also add nothing of real quantitative significance.18 18 The staff has explained that whatever additional risks might be associated with sabotage-initiated accidents are essentially already taken into account in the Limerick PRA within a general category of uncertainties. See FES at 5-74, 5-112. Sholly, however, apparently believes that a more precise calculation can be determined. By dividing the total number of reactor-years for all facilities through the end of 1981 (about 633) by the number of reported acts of insider sabotage between 1971 and 1981 (11), Sholly computes a frequency of roughly one act of sabotage for every 60 reactor-years. He acknowledges, however, that other variables would have to be added in order to refine the analy11s. For one thing, his calculation fails to reflect that none of the 11 acts of sabotage was successful in (Footnote Continued)
16 LEA has therefore failed to cast any serious doubt on either the staff's conclusion that a sabotage risk analysis is beyond state of the art probabilistic risk analysis or the Commission's similar determination that there is no basis by which to measure that risk. See FES-at 5-74; 48 Fed. Reg, at 10,773.19 Contention DES-6 thus lacks even the threshold basis and specificity necessary to withstand rejection.
A second factor to bear in mind is that, although the risk of sabotage cannot be quantified in a way that would permit its litigation per se, the Commission's regulations nonetheless require each plant to have a detailed security plan to protect against external and internal sabotage. See 10 C.F.R. Part 73. The adequacy of such plans are subject (Footnote Continued) initiating a reactor accident. Further, the analysis does not consider the frequency with which different systems of varying significance to the cafe operation of the plant would be affected. Sholly himself thus admits that any sabotage risk analysis would have "large uncertainties."
LEA SARA Contentions fol. 21. In effect, even this process would involve a substantial amount of guesswork. The staff's approach of considering sabotage along with other uncertainties is thus reasonable.
19 The Commission's recently adopted Severe Accident Policy Statement is consistent with this as well. It recognizes the importance of sabotage and indicates that this issue will be carefully analyzed "to the extent practicable" in the design and operating procedures for new plants. Existing plants, however, need only conform to the Commission's current regulatory requirements. 50 Fed. Reg.
at 32,141, 32,144-45.
To the extent that LEA criticizes Commission policy, its argument is, of course, directed to the wrong forum.
e p 17 to litigation in licensing hearings. See,.e.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-653, printed as an Attachment to CLI-82-19, 16 NRC 53 (1982) . LEA, however, has raised no challenge to Limerick's security plan.
LEA's argument that the risk of sabotage must be considered as part of the worst case analysis " required" by CEQ regulations is unavailing. O The provision in question, 40 C.F.R. 5 1502.22, is addressed to "[ilncomplete or' unavailable information." As pertinent here, section 1502. 22 (b) provides:
If . . . the information relevant to adverse impacts is important to the decision and the means to obtain it are not known (e.g. , the means for obtaining it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty. If the agency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurrence.
In the Statement of Consideration for the 1984 revision of the NRC's environmental regulations, 10 C.F.R. Part 51, the Ccmmission addresses the asserted requirements of 40 C.F.R.
20 LEA presses its CEQ argument for the first time on appeal. In this circumstance, we would be justified in summarily dismissing it. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, 1B, and 2B',
ALAB-463, 7 NRC 341, 348 (1978). Nevertheless, we explain below the several reasons why 40 C.F.R. 5 1502.22 does not dictate a different result in this case.
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S 1502.22(b). It agrees that each agency must decide for a
l itself whether the unknown information is relevant and important to its decision and whether it wishes to proceed a
j with the action in question. The Commission objects, however, to the requirement of a worst case analysis, j characterizing this as a substantive (rather than i procedural) requirement, by which the NRC -- as an independent regulatory agency -- is not legally bound.21
! Instead, the Commission states that its Interim NEPA Policy ,
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i address the concerns of CEQ reflected in the worst case analysis regulation. 49 Fed. Reg. 9352, 9356-58 (1984).22 In any event, we in turn are bound by this judgment on 40 C.F.R. $ 1502.22 (b) : we cannot accord binding effect to a j regulation explicitly eschewed by the Commission itself, i ,
{ Even if the Commission had not so clearly proscribed !
] the application of 40 C.F.R. $ 1502. 22 (b) , we would conclude I that, by its terms, the regulation would not mandate here [
the consideration of sabotage in a worst case risk analysis. ,
i 21 The Supreme Court has lett open the question whether j CEQ regulations are binding on independent agencies.
{ Baltimore Gan and Electric Co. v. Natural Resources Defense j Council, Inc., 462 U.S. 87, 99 n.12 (1983).
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{ We note that CEQ recently proposed the amendment of
- 40 C.F.R. 5 1502.22 by eliminating the " worst case analysis" i provision. See 50 Fed. Reg. 32,234 (1985).
19 Risk is the product of probability and consequences; the
" worst case" is concerned with the consequences side of the equation. As discussed at pp. 10-12, supra, the worst case has in fact been addressed in the FES for Limerick. What has not been empirically considered is sabotage as the source of the worst case consequences because of the uncertainties in determining the probability of sabotage --
not uncertainties in determining the consequences. The CEO regulation, however, focuses on the latter and thus does not pertain here.23 Finally, anticipating the argument that C.' regulations are not binding on the NRC, LEA contends that NEPA itself requires a worst case analysis of sabotage risk. It relies principally on Sierra Club v. Sigler, 695 F.2d 957, 971 (5th Cir.1983), which holds that the CEQ regulation in question merely codified the preexisting judicially-created " common law" of NEPA. Therefore, LEA argues, the NRC must weigh the I cost of uncertainty concerning sabotage risk and consider in 1
a worst case analysis a sabotage-initiated event of low probability but potentially catastrophic consequences. See id. at 971-72.
23 The language of the regulation bears this out. The last sentence of section 1502. 22 (b) states that the agency shall include "a worst case analysis and an indication of the probability or improbability of its occurrence" (emphasis added) .
I e 20 Assuming Sigler applies here, however, it does not aid LEA's case.24 In the first place, the court indicated that an agency "may (and should) consider remoteness." Id. at 974. Perhaps more important, the court recognized that
"[t]here must, of course, be a base of infornation upon which to project past these limits." Ibid. Thus, it found that the Sierra Club's proposed model of oil dispersion (caused by the total cargo loss of a supertanker) in a wildlife estuary - " based on known information about tides and currents in the Bay" -- was " informative and useful" and
" reasonably limit [ed] speculation." Ibid. (emphasis in original). Thus, the unknown information in Sigler could reasonably be estimated from long-known, fundamental physical principles (tidos and currents). We are aware of no similar principles (and LEA identifies none) that would permit reasonable prediction of -- like the next high tido
-- the kind of stochastic human behavior displayed in an act of sabotage.
We see somewhat of an inconsistency between Sigler and San Luis Obispo Mothers for Peace. The latter squarely holds that NEPA does not require the NRC to consider at all severe, beyond design-basis accidents because of their very low probability. 751 F.2d at 1301. Yet Sirler -- cited with seeming approval in connection with a ciscussion of 40 C.F.R. S 1502.22 in San Luis Obispo Mothers for Peace, 751 F.2d at 1302 n.77 -- suggests that the common law of NEPA requires an agency to perform a worst case analysis, even for events of low probability, whenever there are (Footnote Continued)
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In sum, the risk of sabotage is simply not yet amenable to a degree of quantification that could be meaningfully used in the decisionmaking process. The Licensing Board therefore properly excluded LEA's contention DES-6.
C. Socioeconomic Impacts LEA's contention DES-4(A) claimed that Supplement No. 1 to the staff's Draft Environmental Statement (" DES Supplement") failed to give adequate consideration to eight identified consequences of a severe accident. See LEA DES Contentions at 9. The Licensing Board permitted litigation of most of the eight areas. As pertinent to this appeal,
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however, the Board rejected the following two matters: ;
(4) The socio-economic cost of compensation required for health offects induced by radiation exposurer (5) Industrial impacts beyond the first year following the accident, and quantification of costs beyond the " output loss" mentioned in DES [ Supplement), p 5-46(.)
Ibid. The Board considered those parts of the contention "not admissible because they are speculativo, both in terms of occurrence and in terms of any reasonable quantification,
! even given that occurrence, and they are remote in terms of our reasonable proximity . . . . This is particularly so, given what the analysos include and other contentions, (Footnoto Continued) uncertainties in important information. See 695 F.2d at
, 971-72.
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l l 22 j especially the other part of this very contention which in I some respects goes reore directly to things of concern, I
l particularly with respect to 4." Tr. 8773-74. See Order of i
April 20 at 1, 2.
I On appeal, LEA acknowledges that the FES discusses !
i i socioeconomic impacts but it argues that that discussion is ,
t t l too limited.25 It also contends that, in violation of certain CEO regulations, the Licensing Board ignored j " additional significant economic impacts that can be known [
with reasonable certainty." LEA Brief at 20. LEA takes issue with the Board's statement that the impacts in parts !
! (4) and (5) of contention DES-4(A) are speculative and not l
) amenable to reasonable quantification.26 It also asserts l- that there are enough data, provided by the staff itself, I
l l from which to calculate industrial impacts for periods in 1
excess of 30 years. Even if there were difficulties in I
! performing such computations, however, LEA argues that the j
- e
- NRC is nonetheless required to attempt them in the context !
i l
of a worst case analysis.
i !
25 l The relevant portion of the PES is virtually j identical to that in the DES Supplement. As LEA han done in e j its brief on appeal, we will therefore refer to the FES, !
) rather than the DES Supplement, from this point on.
l 26 l In this connection, LEA points out that the f l Price-Anderson Act, 42 U.S.C. $ 2210, provides for i compensation, up to a specified limit, to victims of nuclear ;
j (rootnote Continued) ;
( ,
j i
23
\
We are not persuaded by LEA's arguments. It is not l
apparent from the actual wording of part (4) of contention j DES-4 ( A) or LEA's brief on appeal exactly what LEA means by
"[t]he socio-economic cost of compensation required for ,
health effects." In response to the Licensing Board's questioning at the hearing, however, LEA's counsel clarified ;
that DES-4 ( A) (4) concerns essentially the dollar value of l compensation awarded to accident victims through insurance l claims and lawsuits. See Tr. 8700-01.27 By multiplying an assigned value per human life (e.g. , one million dollars) by (
the ostimated number of early fatalities from a severo I i accident (shown in the FES under the category of health ef fects), LEA suggests a basis for quantifying this " cost of i i
compensation." Tr. 8701-02. This is apparently tho l
" additional significant economic impact () that can be known I i
with reasonable cortainty," which LEA claims must bo l considered in the environmental analysis of the plant. LEA r Drief at 20. r (Footnoto Continued) power plant accidents. Thus, LEA reasons that the recovery l
l of such compensation cannot properly be considorod
" speculative."
27 No party cited to this portion of the record. We ;
remind all litigants that, as an appellato body, wo do not oversee licensing hearings and thus have no working >
familiarity with the longthy record below. We must :
accordingly rely heavily on the parties' briefs for references to all rolovant parts of the record. This is '
(Footnoto Continued) i i
24 We agree with the Licensing Board that this " simple" calculation of the cost of compensation is highly speculative. It yields a quantification of sorts, but it does not provide any reliable information of decisional significance in addition to that already quantified in tho FES and admitted for litigation as a separate part of l
contention DES-4 (A) -- i.e., the health effects of a severo accident. Indeed, it might well be argued that inclusion of I
i such hypothetical costs, determined on the basis of randomly selected values applied to an ovent of very low probability, 1
diminishes the true worth of the FES in the decisionmaking
<l process. In any event, part (4) of DES-4(A) surely involves the kind of "'romoto and highly speculativo consequencos'"
that need not be addressed in an environmental impact statement. Sea San Luis Obispo Mothers for Peace, 751 F.2d at 1300 and casos cited.
The same in true for part (5). The staff recognizes l that a severo accident might " force numerous businesson to temporarily or permanonely close." FES at 5-102.
1 Nonetheless, its analysis of industrial impacts does not considor consequences beyond the first year following an accident "bocause they will vary widely doponding on the (Footnoto Continued) especially true whero, as here, the rulings appealed were rondored from the banch and no detailed, writton opinion by
- the Licensing Doard is available,
- - . , - . . - . . _ . ,----------.-m..~ v. - - - - . _ . - , _ , . - . --
25 level and nature of efforts to mitigate the accident consequences and to decontaminate the physically affected areas." Id. at 5-106. LEA points to "probabilistic calculations of specific land area interdiction by time period, distance, and sector, together with the extensive land use data available in the applicant's environmental documents" as support for its view that longer term impacts are not speculative and can indeed be quantified. LEA Brief at 24-25. But none of the empirical data mentioned by LEA or in the FES would make "more certain" -- and thus, less speculative -- the longer term uncertainties identified by the staffs the nature of efforts to mitigate the accident and to decontaminate affected areas. These are unknowns for which no relevant, practical experience exists.28 The line has to be drawn somewhere, and we believe the staff's determination to consider only the first year of post-accident industrial impacts is a reasonable one.
Consideration of longer term impacts would, again, involve engaging in a level of speculation not required by NEPA.
As in the case of LEA's other severe accident contentions discussed here on appeal, it is important to 28 Even the 1979 accident at Three Mile Island did not involve the long-term industrial impacts to which DES-4(A)(5) io addressed. See generally Rnport of the Governor's Comminston on Thrno Miln Island (1980) at 18-21, 29-43.
26 1
keep in mind what the environmental review for Limerick does encompass. LEA concedes that the FES, in fact, considers various socioeconomic impacts of a very low probability severe accident. This consideration was undertaken in compliance with the Commission's Interim NEPA Policy, 45 Fed. Reg. at 40,103.29 The discussion of socioeconomic impacts, however, is more detailed and inclusivo than LEA suggests. See, e.g., FES at 5-93 to 5-94, 5-98, 5-99, 5-102, 5-106 to 5-107. Moreover, soveral of the estimates used in the analysis rely on somewhat conservative assumptions -- for examplo, no use of unused capacity in an i area unaffected by the accident to offset the initial lost f production in the affected areas. Id. at 5-106. See also id. at 5-107. In the absence of any well-founded challenge to tho adequacy of this discussion, we are therefore unable to conclude that either the Licensing Board's or the FES's !
consideration of the socioeconomic impacts of a savoro accident is legally deficient.
1 I
29 Thus, we nood not decido whether the casos and various CEQ regulations to which LEA refers requiro NRC consideration of socioeconomic impacts. Soo also pp. 17-19, supra. We noto, however, that the casos cited do not l ,
involve the socioeconomic impacts of an ovant of vary low '
probability, such as that involved hero. See City of Hochentor v. United States Pontal Sorvien, 541 F.2d 967 (2d
'Cir. 1976); Trinity Lpinco. pal School corp. v. Pomnoy, 523 F.2d 88 (2d Cir. 1975). TTo latter cano also concorns a difforont section of NEPA.
27 l
D. Human Health Impacts LEA's last environmental argument is essentially a procedural one. It complains that the FES does not contain the complete disclosure of certain nonfatal human health I impacts of a severe accident, which NEPA assertedly requires. LEA lists six such impacts that the FES does not l
explicitly discuss, despite the fact that the risk of these
) effects is greater than that of most of those that the FES does address.30 t
The Licensing Board agreed with LEA that "it would have been more helpful to lay members of the public if the FES had contained more completo disclosure and explicit considaration of (these impacts)." LDP-84-31, 20 NRC at 551.31 But the Doard also found that tho evidence concerning these ronfatal human health impacts adduced by
' the staff and PEco at the hearing, along with the Doard's 30 The six categories of impacts aron genetic effects / changes, nonfatal cancers, bonign thyroid nodules and hypothyroidism, spontaneous abortions, sterility, and developmental impairment of children. Most of these are not forth in LEA's contention DES-4 (A) (1) .
31 The staff did not include this matter in the FES because it " believed that such disclosure was implicit by citing authoritative references which treat those mattors in detail." It also believed those impacts are "relatively unimportant in its best-estimate calculations LDP-04-31, of the risks20 of potential reactor accidents at Limorick."
NRC at 559. The Doard noted that "[plorhaps (the omission of this material in the FES) was a consequence of using stato-of-the-art knowledge and methodology," Id. at 573.
f
28 findings and conclusions, properly amended the FES. The Board concluded that this practice is acceptable under both the Commission's prior and existing NEPA regulations (and-Commission and court precedent alike). Id. at 552-53. It explained, in this regard, that this additional evidence did not substantially modify the FES or result in any change in the conclusions of that document about the total risk posed by the Limerick facility. Id. at 551, 552-53, 557, 560, 573. The Board went on to discuss the pertinent evidence at some length, concluding that "the nonfatal latent health effects have been adequately disclosed and considered" and that these risks are " clearly small." Id. at 554-60, 573.
On appeal, LEA disagrees with the Licensing Board's reading of the pertinent NEPA regulations. 'It contends that the only applicable existing NRC regulation does not permit supplementation of the FES through the hearing process. LEA does not, however, challenge the substance of either the record or the Board's detailed discussion of it. Instead, it seeks, in effect, summary reversal of the Board's conclusions and supplementation and recirculation of the FES. LEA Brief at 26-32.
Amendment of the FES by the adjudicatory hearing record and subsequent Licensing Board decision is entirely proper under NRC regulations and court precedent. The applicablo regulation in effect at the time of the hearing, 10 C.F.R. 5 51.52 (b) (3) (1984), provided:
? < ,
l J
~
29 J
l k
i . . . an initial decision . . may include findings and conclusions which affirm or modify the content of the final environmental impact l i statement prepared by the staff. To the extent l l
i that findings and conclusions different from those ;
j~ in the final environmental statement prepared by !
the staff are reached, the statement will be deemed modified to that extent and the initial i
decision will be distributed as provided in
' S 51. 26 (c) . ...
LEA seems to acknowledge, at least tacitly, that the Board's -
J I I
i action fully complied with this provision. LEA Brief at 31.
j It argues, however, that this regulation was not readopted I
J, when the Commission revised 10 C.F.R. Part 51 in 1984; thus, ;
it no longer exists and does not apply here. According to '
l i
LEA, the new provision cited by the Board, 10 C.F.R.
i -- which took effect soon after the hearing l 5 51.102 (1985) i
)
on this matter but before the second partial initial 1
- i I
decision was issued -- does not require recirculation for i
public comment of the FES, as amended by the Board's initial decision. The FES thus remains deficient under NEPA and can l
be cured only by recirculation. LEA Brief at 31-32.
We need not decide which regulation controls, for t i
section 51.102 serves the same purpose as its dif ferently
!{ worded predecessor, section 51.52 (b) (3) . LEA's argument is therefore without merit. Section 51.102(a) states that "[a]
J Commission decision on any action for which a final environmental impact statement has been prepared shall be l
)
accompanied by or include a concise public record of '
1 decision." Generally, that record is to be prepared by the 4
f ,
j
30 staff. 10 C.F.R. S 51.102(b). When an adjudicatory hearing is held o. the action, however, the initial decision of the (Licensing Board]
. . . will constitute the record of decision. An initial or final decision constituting the record of decision will be distributed as provided in S 51.93.
10 C.F.R. S 51.102 (c) . Section 51.103 describes the contents of the " record of decision," noting that it may incorporate by reference any material in the final environmental statement. On its face, 10 C.F.R. S 51.102 thus merges the FES with any relevant licensing board decision to form the complete environmental record of decision -- just as former section 51.52(b) (3) did.32 But
- even under the stricter construction of section 51.102 urged I
by LEA, nothing in it precludes modification of an FES by i licensing board decision.
Several federal courts of appeals have cpproved the procedure set forth in former section 51.52(b) (3), providing for the amendment of an FES through the adjudicatory process. See New England Coalition on Nuclear Pollution v.
NRC, 582 F.2d 87, 93-94 (1st Cir. 1978); Citizens for safe t
32 The Commission's Statement of Consideration for the 1984 revisions to Part 51 does not discuss section 51.102.
See 49 Fed. Reg. 9352. The discussion of this section in the notice of proposed rulemaking, however, clearly contemplates modification of an FES by a board decision following evidentiary hearing on an environmental issue. .
Soo 45 Fod. Reg. 13,739, 13,741 (1980).
31 See Power v. NRC, 524 F.2d 1291, 1294 n.5 (D.C. Cir. 1975).
also Ecology Action v. AEC, 492 F.2d 998, 1001-02 (2d Cir.
1974).33 There is no reason to believe that the courts would not be just as approving of the same procedure today, either as embodied in section 51.102 or, indeed,- in the absence of any regulation, as a matter of board practice.
While suggesting no prejudice to its own interests, LEA nonetheless voices concern that NEPA's purpose in providing the opportunity for public comment on an environmental statement is somehow thwarted by board amendment of an FES.
"the hearing But as the Licensing Board here pointed out,
. provide [s] the public ventilation that recirculation LBP-84-31, 20 of an amended FES would otherw.se provide."
d NRC at 553, citing ALAB-262, 1 NRC 163, 197 n.54 (1975).
This arguably allows for additional and a more rigorous 33 LEA cites a decision of the First Circuit, Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir.~1980),
in support of its view that an FES cannot properly be amended by the hearing record. But that decision -- which does not even cite to that circuit's opinion in New England Coalition, rendered just two years earlier -- is easily distinguished. The studies and memoranda on which the Federal Highway Administration relied in Grazing Fields --
albeit in the administrative record -- were "not '
incorporated in any way" into the environmental impact statement for the highway project there at issue. The court therefore concluded that such studies could not " bring into compliance with NEPA an EIS that by itself is inadequate."
Id. at 1072. Here, of course, the Licensing Board See, e.g.,
explicitly amended the FESMoreover, by its decision.
the FES itself is not LBP-84-31, 20 NRC at 572.
inadequate. See p. 32, infra.
l
. 32 l
- public scrutiny of the FES than does the usual " circulation for comment." Further, like its predecessor regulation, section 51.102 (c) requires that the decision amending the FES be distributed to various entities, including the Environmental Protection Agency, state and regional clearinghouses, and ccamenters on the FES. See 10 C.F.R.
S 51. 93 (a) . The staff has done so here. See Letter to A.
Hirsch from A. Schwencer (December 3, 1984) and attached service list.34
- Finally, it bears repeating that the impacts at issue here are those that might result from a low probability severe accident -- an event that, according to the court in San Luis Obispo Mothers for Peace, 751 F.2d at 1301, need i not even be considered for NEPA purposes. Thus, the extensive conside' ration given at the hearing and in the j Licensing Board's decision to the identified nonfatal human 34 We are somewhat troubled, however, by several aspects of the staff's fulfillment of this distribution i responsibility. For one thing, we do not understand why it i took more than three months to perform this ministerial task. For another, although it is in the NRC's-headquarters and local public document rooms, the Board's decision does not appear to have been served on a few FES commenters (for i
example, John Doherty and the Delaware River Basin Commission). Likewise, this Appeal Board -- which clearly
! had jurisdiction over this part of the Limerick proceeding i in December 1984 -- was not served with a copy of Schwencer's letter. We learned of this only through PECo's brief. See Applicant's Brief (December 28, 1984) at 31
. n.75.
i
. _ . . _ . _ . - ~ - _ - - , , _ . , _ _ _ _ _ _ _ . . _ _ ~ , _ _ _ . _ . . _ . - _ . _ _ _ _ - . . ._,__._ _
33 health impacts -- which consideration LEA does not attack on the merits -- can hardly be criticized as inadequate under NEPA.
E. Onsite Emergency Plan
- 1. In its first challenge on appeal to PECo's onsite emergency plan, LEA claims that the Licensing Board closed the record too soon on its contention VIII-8 (b) . That !
I contention essentially complains that the emergency plan's descriptions of Limerick's Emergency' Operations Facility (EOF), Technical Support Center (TSC), Operations Support Center (OSC) , and unspecified emergency equipment and supplies are insufficient to permit a meaningful assessment
! of these facilities' compliance with various regulatory criteria.35 35 The exact wording of contention VIII-8 (b') follows.
The LNGSEP [ Limerick Nuclear Generating Station Emergency Plan] fails to demonstrate that adequate emergency facilities and equipment to support emergency response are provided and maintained as required by 10 CFR S 50.47 (b) (8) , especially in that:
i (b) The Plan's descriptions of the Emergency
- Operations Facility (Plan S 7.1. 2) , the Technical Support Center (Plan S 7.1.3), the Operational Support Center (Plan S 7.1.4) , and emergency equipment and supplies are all insufficient to i meaningfully assess compliance with 10 C.F.R.
S 50.47 (b) (8) and to evaluate the facilities with respect to the criteria of NUREG-0654, Supplement 1 to NUREG-0737 (58), and NUREG-0696. Intervenor (Footnote Continued) i
i 4 I 34 -
LEA _ argues that, at the time of the hearing on this contention, the staff had not yet evaluated these ;
- i facilities, and it points to the Licensing Board's statement ;
that "the Staff's review was still far from complete" at this juncture. LBP-84-31, 20 NRC at 527.36 LEA requested i
j the Board to await the staff's appraisal visit report and thereafter to afford the parties the opportunity to propose {
findings in this regard. The Board, however, declined to do
)
i so. It balanced the intervenor's possible interest in the
- outcome of the staff's review against the absence of 2
anything particularly unusual or controversiti about that review and the criteria applied by the staff. The Board 1
- (Footnote Continued) contends the applicant has not demonstrated that l the facilities proposed a're adequate. Applicant's response to Q 810.30 states that the plan will be expanded when final information is available on these facilities.
BASIS i
10 CFR S 50.47 (b) (8); Part 50, Appendix E; l NUREG-0654, Criteria H.1, 2, 9, NUREG-0696,
" Functional Criteria for Emergency Response i
- Facilities: NUREG-0814, pp. 2-15; Supplement 1 of
- NUREG-0737, S 8.
LEA's Admitted On-Site Emergency Planning Contentions .
1 (November 14, 1983) (hereafter, " LEA's Emergency Planning !
1 l Contentions") at 7-8.
36 The only direct evidence on onsite emergency planning was presented by PECo and the NRC staff. '
LBP-84-31, 20 NRC at 515.
i
_ . . - . - - - _ _ . ~ . _ _ . - - . . ~ , , , - - - . , _ _ . _ - . .
35 also stressed that " LEA raises no specific concern that any of these facilities will not meet a particular requirement."
Id. at 527-28. It therefore ruled in favor of PECo on the I
contention. Id. at 516.
LEA contends that the Licensing Board has failed to make all of the findings required by the Commission's
' various emergency planning documents in connection with contention VIII-8 (b) . In its view, the Board has improperly delegated to the staff the post-hearing resolution of this issue, in violation of the hearing requirement of section 189a of the Atomic Energy Act, 42 U.S.C. S 2239a, as well as Commission and court precedent and sections 5 and 7 of the APA, 5 U.S.C. SS 554, 556.
1
- We disagree. First, the staff's review of PECo's emergency planning facilities was more complete at the time l
of the hearing than either LEA or the Licensing Board's decision suggests. The staff had completed its review of PECo's revised emergency plan, which included, among other things, descriptions of the EOF, TSC, and OSC. See
' Applicant Exh. 32, SS 7.1.2, 7.1.3, 7.1.4. The staff had also requested and obtained from PECo additional information concerning' specific parts of the plan, which it reviewed Sears,
-(along with the plan itself) and-found acceptable.
fol. Tr. 9776, at 2-3, 9-12. Further, the staff had l
l conducted a site visit of the facilities. Id. at 4; Tr.
10,061. The staff testified at the hearing that the l
_- _ _ ._ _ = - . _ _ _ . .
36 ,
l facilities themselves were "near" or "very near to completion" - "well above 75 percent." Tr. 10,062.
i Essential communications equipment, desks, the Radiation and Meteorological Monitoring System (RMMS),'and the Emergency Response Facility Data System (ERFDS) were installed at the time of the staff's tour but were not yet " hooked up" for operation. Tr. 10,061-62. All that remained were the staff's final onsite appraisal of PECo's capability tx) implement its overall emergency plan, and a determination of the reliability of the equipment in the facility. Sears, fol. Tr. 9776, at 3; Tr. 10,064-70.
The operability and reliability of the equipment and the conformity of the as-built emergency support facilities with their design, however, were not the subject of contention VIII-8 (b) . As n'oted~above,'that contentioh was directed to the adequacy of the plan's descriptions of the EOF, TSC, OSC, and associated equipment vis-a-vis the Commission's regulatory criteria. See note 35, supra.
Perhaps LEA sought to litigate something else, but it is bound by the literal terms of its own contention.37 Moreover, as the Licensing Board noted, LEA did not (and 37 j Thus, LEA's generalized complaint that its hearing l rights under the Atomic Energy Act and the APA were impaired by the Licensing Board's ruling is without merit: it cannot be wrongfully denied a hearing on an issue that it did not i raise.
i
)
1
37 does not.still) explain in what-particular respects the emergency plan's descriptions are inadequate. See LBP-84-31, 20 NRC at 528. The mere invocation of the NRC's pertinent regulations and documents cannot suffice to prove LEA's case. For the controlling regulations themselves are general and permit considerable leeway in their application.
The standard pertinent to contention VIII-8 (b) , 10 C.F.R. S 50.47 (b) (8) , simply states that "(a]dequate emergency facilities and equipment to support the emergency response (must be] provided and maintained." Section IV.E of Appendix E to 10 C.F.R. Part 50 specifies what facilities and equipment must be provided -- for example, "(a] licensee onsite technical support center and a licensee near-site emergency operations facility from which effective direction can be give'n and effective control can be exercised during an emergency" -- but gives no details. Various NRC documents cited by LEA flesh out the generalized regulatory requirements of Part 50. See, e.g., NUREG-0654, Rev. 1,
[
" Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of l
Nuclear Power Plants" (November 1980), at 52-55; NUREG-0696,
" Functional Criteria for Emergency Response Facilities" (February 1981); NUREG-0737, Supplement No. 1, " Requirements for Emergency Response Capability" (Generic Letter No.
82-33) (December 1982) at 17-26; NUREG-0814, " Methodology for Evaluation of Emergency Response Facilities" (August
38 1981), at 2-1 to 2-15, 4-1 to 5-17. But these, too, are generalized or contain descriptions of the functions the emergency facilities and equipment are to perform, rather than descriptions of the facilities and equipment themselves. In any event, these NUREGs simply serve as guidance for the staff's review and do not prescribe regulatory requirements, as do regulations like 10 C.F.R.
S 50.47 (b) (8) . Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1) , ALAB-698, 16 NRC 1290, 1298-99 (1952), rev'd in part on other grounds, CLI-83-22, 18 NRC 299 (1983).
Finally, the post-hearing appraisal of PECo's emergency facilities by the staff is entirely appropriate. As explained in Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-7'32, 17 NRC l'076, 1103-04 '
(1983), the Commission relies on predictive findings of adequacy in the emergency planning area more so than in other areas. The emergency. plan itself need not even be final, so long as it is sufficiently developed to permit a board to make the necessary " reasonable assurance" finding.
Here, given the substantial staff review that had already taken place at the time of the hearing and the limits inherent in LEA's own contention (see pp. 35-37, supra), the plan was certainly developed enough to warrant the Licensing Board's finding of adequacy, despite the review work yet to be done by the staff. Indeed, the staff's final evaluation I
.39 of the emergency facilities here is akin to the staff's post-hearing review of a siren warning system, which review we found acceptable in Waterford, 17 NRC at 1104-05.38 g, therefore conclude'that the Licensing Board did not err in refusing to hold the record open pending the results of the staff's final onsite appraisal report.
- 2. The Commission's emergency planning regulations require "[a]rrangements (to bel made for medical services for contaminated injured individuals." 10 C.F.R.
S 50.47 (b) (12) .39 Section IV.E of Appendix E to 10 C.F.R. 38 Recognizing that it is not in the record, we nonetheless note in passing that the staff conducted its appraisal of the onsite emergency plan for Limerick in June 1984 and issued a report two , months later, identifying certain required corrective actions. As pertinent to contention VIII-8 (b) , the areas indicated by the staff as needing corrective action or improvement involved principally the implementation of the plan and operability of the equipment, but did not necessitate significant changes in the plan itself. See Inspection Report No.
50-352/84-18 at 9-13. PECo responded to the report and the staff subsequently concluded that PECo's actions and commitments rendered the plan adequate'for low-power operation. See NUREG-0991, Supplement No. 3, " Safety Evaluation Report" (October 1984) [hereafter, "SSER-3"], at 13-3 to 13-23. Later the staff gave its full approval to the overall emergency plan. See SSER-5 (July 1985) at 13-3.
39 As used here without dispute, " contaminated injured" means those who are traumatically injured and are also contaminated with radionuclides on or in their bodies. The Commission.had, at one time, generically expanded the scope of this phrase, but in the wake of an adverse court decision (see note 45, infra), it is reconsidering that expanded definition. The usage of the phrase here, however, does not involve the expanded definition.
40 Part 50 describes the equipment, facilities, and arrangements for which "[a]dequate" provision must be made.
i Items 6 and 7 are most pertinent here:
- 6. Arrangements for transportation of contaminated injured individuals from the site to specifically identified treatment facilities outside the site boundary;
- 7. Arrangements for treatment of individuals injured in support of licensed activities on the site at treatment facilities outside the site boundary [. ]
Ibid. (emphasis added). NUREG-0654, Rev. 1, at 69 (Planning Standard L.f) states that such arrangements should l include " local and backup hospital and medical services having the capability for evaluation of radiation exposure i
and uptake, including assurance that persons providing these services are adequately prepared to handle contaminated individuals" (emphasis added) .40 See also id. at 39 (Planning Standard B.9) .
- In an effort to comply with these requirements, PECo has arrangements with two hospitals for the treatment of 40 Although NUREG-0654, Rev. 1, provides " guidance" (see pp. 37-38, supra), the Commission itself specifically ,
relied on and endorsed Planning Standard L.in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 535 n.9 (1983), rev'd in part on other grounds, GUARD V. NRC, 753 )
1 F.2d 1144 (D.C. Cir. 1985). l I
e
,, ,_g _ e - - . , ~ .-.. -- - ,- , , . - . - , . - . - . , , - , , . - - - , , - - - -,e
1 41 ,
d and injured onsite.41 individuals who are contaminate
-- located about Pottstown Memorial Medical Center (PMMC) two miles from the plant site and within the 10-mile Limerick emergency planning zone (EPZ) -- is the primary .
receiving point. Through an agreement with PECo's (RMC),
contractor, Canberra Radiation Management Corporation the Hospital of the University of Pennsylvania (HUP) about 45 minutes away by motor vehicle -- is intended to i
serve as the backup facility for treatment of onsite ,
LBP-84-31, 20 i
personnel who are contaminated and injured.
See Applicant Exh. 32, SS 5.3.2.1, 5.3.2.2.
i t
NRC at 531-32.
A portion of LEA's admitted contention VIII-12(a) questions the adequacy of these arrangements, especially in a " general emergency"42 when PMMC might be required to evacuate.43 LEA argued before the Licensing Bo'ard that PECo i
41 PEco does not dispute the need for both local and 1
backup facilities. See Applicant's Brief at 39-40.
l t
42 .There are four emergency classes. A general l See emergency is the highest or most serious such category.
10 C.F.R. Part 50, Appendix E, 5 IV.C. l
(
43 In pertinent part, contention VIII-12 (a) states: i The onsite plans fail to demonstrate that adequate for arrangements have been made, or will be made, !
medical services for contaminated injured individuals on-site, as required by 10 CFR l 5 50.47 (b) (2) and (12) , in that: ,
- *
- The plans contain an agreement with (Footnote Continued) l l
l r
I
., ,__. . . , . . , __ , . _ _ _ . _ _ _ ~ .
42 should be required to make arrangements with a third hospital capable of treating the contaminated injured --
specifically one that is less vulnerable to evacuation than PMMC but closer to Limerick than HUP.
Although a majority of the Licensing Board agreed that "it would be prudent to make more formal arrangements" with a closer backup hospital, it declined to require it.
LBP-84-31, 20 NRC at 536. Significantly, it did not conclude that HUP is adequately close. Rather, the Board majority reached its judgment on the basis of four other factors. First, it noted the probability that PMMC would be unavailable to receive contaminated injured individuals is remote. Second, it referred to 19 other hospitals in the surrounding three-county area with " claimed capability" for handling these patients on an ad hoc basis in an emergency.
Ibid. Third, the Board majority assumed that the staffs of (Footnote Continued)
Pottstown Memorial Hospital, a facility only two miles from the site, to provide emergency treatment to contaminated patients. In a general emergency, the hospital will be required to evacuate its own. patients, which will preclude acceptance and treatment of radiation victims coming from the site. The status of medical '
support from the Hospital of University of Pennsylvania is unclear as well. . .. . These are the only two hospitals listed in the Plan as available for medical services to on-site contaminated victims. See NUREG-0654, Criteria B.9 and L.l.
LEA's Emergency Planning Contentions at 10-11.
l 43 ,
I 4
PMMC, RMC, and HUP can and will provide assistance to one l 1
E another in an emergency. Fourth, it noted that sheltering, f i
! rather.than evacuation, is the first option during a general j emergency. Ibid.
1 Judge Brenner, Chairman of the Licensing Board, i
dissented. Id. at 536-38. He agreed with his colleagues 4
that evacuation of PMMC is improbable, but observed that the Commission's emergency planning regulations and guidance
~
3 nevertheless assume that life-threatening releases from a j
~
plant could occur, with a corresponding need-to evacuate the -
i 10-mile EPZ. In concluding that PECo's medical arrangements 1
{
for the contaminated injured are not adequate, Judge Brenner
" pointed out that HUP is available as a backup only when the trauma victims can withstand the 45-minute trip to that i
)
i- facility. As for the other 19 hospital's-in the area to-which the Board majority referred, Judge Brenner found "no reasonable assurance, due to the total absence of planning, l
i that any of those hospitals is well prepared.to treat such i
victims, especially if there were to be more than one or two victims." Id. at'537. Putting himself in the shoes of a potentially contaminated injured worker at Limerick, Judge Brenner would have required PECo, as a condition for
! full-power operation of Limerick, to make arrangements i
similar.to those with PMMC with a third hospital, "less I
vulnerable to evacuation, and significantly more accessible t
than HUP." Id. at 538, 537. ;
i l
l l'
L .- - --. .
44 On appeal, LEA essentially repeats the arguments it made below. It asks that we reverse the Board majority and order further action consistent with Judge Brenner's dissent. See LEA Brief at 39-46. On this point, we agree with LEA: we are not persuaded that PECo has made adequate arrangements for the treatment of certain onsite personnel who are contaminated as well as traumatically injured. For such persons whose traumatic injuries require prompt medical attention, HUP is too distant to serve as an adequate backup
~
hospital.
The reasons given by the Board majority in declining to require a closer backup hospital do not withstand scrutiny.
As Judge Brenner noted, the improbability of PMMC's evacuation and consequent unavailability to receive contaminated injured workers is beside the point. The Commission's emergency planning regulations are premised on the assumption that a serious accident might occur and that evacuation of the EPZ might well be necessary. See San Onofre, CLI-83-10, supra note 40, 17 NRC at 533. The adequacy of a given emergency plan therefore must be
- adjudged with this underlying assumption in mind. As a corollary, a possible deficiency in an emergency plan cannot properly be disregarded because of the low. probability that action pursuant to the plan will ever be necessary. Thus, the Licensing Board majority gave undue weight to the fact that evacuation of PMMC is remote.
i
' 45 i~ There is also no basis in this record for the Board
' majority's reliance on the existence of some 19 (by the i,
Board's count) other hospitals in the area, and on the assumption that those institutions are " adequately prepared"
~LBP-84-31, i
to serve as a backup to PMMC on an ad hoc basis. ,
20 NRC at 535. The Board majority conceded it had "no detailed knowledge of the specific abilities and training of I the emergency medical service personnel at these potential I
alternative receiving hospitals." Ibid. 'But it was i
apparently influenced in this regard by the testimony of j
PECo's witness, Dr. Roger E. Linnemann, that all accredited P l hospitals are required by the national Joint Committee on Hospital Accreditation (JCHA) to have some plan for handling-f- See id. at 534;;Tr. 9912-14.
contaminated injured persons.
1 Of course, on this record the 19 hospitals have not even j
i been identified, much less verified as accredited by the l'
i JCHA. In any event, we are inclined to agree with Judge
' Brenner's observation that, "[i}f JCHA accreditation were l
sufficient . . . , there would be no need to provide [PMMC]
with special training and equipment." LBP-84-31, 20 NRC at 537.44 Moreover, there is no evidence if any of these a
'44 Dr. Linnemann's own testimony in this proceeding and others stresses the need for special procedures and training i
to handle patients who are not only traumatically injured ,
but also contaminated by radionuclides. See, e.g., Tr.
l (Footnote Continued) l l
\ -
s 46 j assertedly capable facilities would be willing to enter an agreement with PECo to serve as a backup facility. See generally Tr. 9843-44, 9911-18. The record here simply does not provide any basis for the sanguine assumptions about the other'19 hospitals in which the Board majority has indulged.45 (Footnote Continued) i 9845, 9919-20; Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 137 (1982). One can reasonably infer from Dr.
Linnemann's testimony that, before approving a hospital for handling radioactively contaminated patients, he would expect more than just JCHA accreditation on the basis of "some type of plan." Tr. 9914. So, too, should the NRC.
45 The District of Columbia Circuit's decision in GUARD, supra note 40 -- rendered subsequent to the Licensing Board's decision here on review -- provides yet an additional reason to eschew ad hoc reliance on these other hospitals. There, the court ~ struck down the Commission's determination in San Onofre, CLI-83-10, that "a simple list of treatment facilities already in place" could satisfy the requirement of 10 C.F.R. S 50. 47 (b) (12) for "[alrrangements
. . . made for medical services." 753 F.2d at 1146. The court found that this planning " starts and stops with a list." The actual medical services for radiation exposure would be " arranged entirely ad hoc after the onset of an emergency." Id. at 1149 (emphasis in original). In overturning tEIs interpretation, the court stated: "A provision calling for pre-event arrangements is not sensibly met by post-event prescriptions." Ibid. The court went on to rebuff efforts to show certain arrangements were adequate in the absence of any record evidence to that effect, and to reject generalized assumptions about the availability of adequate facilities to serve victims of a radiological emergency. Id. at 1149-50.
To be'.sure, there are differences between GUARD and the instant case. The Commission's San Onofre interpretation was rendered in the context of its consideration of medical arrangements for persons offsite exposed to dangerous levels (Footnote Continued) f
-, - - - - . - - . , e.--w , n- . - -m ,-. . -
i
- s 47 I
\
Similarly, there is no record basis for the Licensing Board-majority's assumption that any assistance provided one another by the staffs of PMMC, RMC, and HUP somehow militates against the need for a closer backup hospital. In this connection, it assumes "that in the event of a hospital evacuation, trained personnel and some equipment would travel to the [ unidentified] receiving hospital and provide assistance." LBP-84-31, 20 NRC at 535. A more reasonable assumption, however, is that, in an evacuation, the PMMC staff would be fully occupied with relocation efforts. HUP and its staff would still be 45 minutes away, and RMC is not a hospital.
The Board majority's findings thus are not supported by the record. Compare Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 833-34 (1984). On the other hand, we find the dissenting opinion of Judge Brenner convincing. As he noted, all parties agree that "it is prudent and proper medical practice that a. hospital being relied upon for (Footnote Continued) of radiation (not just contaminated) . Nevertheless, section
- 50. 47 (b) (12) applies to both onsite and offsite emergency planning. See 10 C.F.R. S 50.47 (b) . The court's common sense construction of these same words -- albeit'in a The l
different context -- cannot reasonably be disregarded.
message is clear: if a list of facilities is not an
" arrangement," the Licensing Board majority's taking notice of the existence of 19 unidentified facilities cannot suffice either, even as a backup.
l l
1
48 treatment of traumatic injury, contaminated or not, be reasonably close (accessible) to the plant." LBP-84-31, 20 NRC at 537. See Tr. 9844-45, 9906, 9929-30. And PECo acknowledges that "prudency" is the proper standard by which to measure emergency provisions. Applicant's Brief at 43.
See San Onofre, CLI-83-10, 17 NRC at 533.
Applying that standard in the circumstances here, our judgment is that, for the treatment of certain traumatic injuries where time is of the essence (such as a serious injury to the head or a heart attack), reliance on a backup hospital 45 minutes away is not prudent.46 This is not a sparsely populated, rural area with limited medical facilities. In such a case, a 45-minute trip to the hospital might well be acceptable as the only alternative.
But here, all agree that numerous other options exist and that "it would be prudent to have at least skeletal arrangements with a hospital between PMMC and HUP."
LBP-84-31, 20 NRC at 537 (Brenner, dissenting). The Commission's emergency planning regulations do not require
" extraordinary measures." GUARD, 753 F.2d at 1150 n.7. On the other hand, we think it reasonable -- indeed, prudent 46 It is not clear from the record whether this 45-minute " distance" took into account the inevitable traffic congestion that would occur in a general emergency during which evacuation is ordered. See Tr. 9844.
Moreover, helicopter transport was not considered an option in this circumstance. See LBP-84-31, 20 NRC at 534 n.16, 537 n.17, 540.
- - . , _ _ _ _ . . _. -.~__.. _ _ ._ __.._-- _ _ _ _ _ . _ _ _ _ _ _ . _ _ > . - _ . _.
49 i ,
i I i
-- to expect an. applicant to pursue the existing options in :
an effort ~to comply with those regulations. We therefore l s
I reverse the Licensing Board's decision, in part, and remand ,
for further proceedings to consider alternative options.47 :
I ,
,I One matter remains -- the effect of our decision here on the full-power operating license recently issued by the Commission to PECo. See CLI-85-15, 22 NRC __ (August 8, 1985). Although we have concluded that PECo's onsite
! emergency plan is inadequate in one respect, the
! Commission's emergency planning regulations contemplate such i 4 an eventuality. Under 10 C.F.R. . S 50.47 (c) (1) , failure to i
i satisfy the emergency planning standards in section 50.47 (b)
"may result in the Commission ('s] declining to issue an i operating license" unless one of three factors is
} demonstrated: ;
that deficiencies in the plans are not significant for the plant in question, that adequate interim j
compensating actions have been or will be taken i
promptly, or that there are other compelling
- reasons to permit plant operation. ,
I
'47 We do not impose any part!.cular requirements on l
' PECo's arrangements for adequate backup medical services for persons who are contaminated and injured onsite. We simply I expect PECo.to explore the entire range of reasonable 1 options addressed to the concerns raised by LEA's contention. - Thus, the facility selected should lie beyond the area subject to potential evacuation, but should otherwise be as close as possible to Limerick. This could even include HUP if arrangements for a significantly shorter (Footnote Continued) i i
- , , , - ywg--,- , e %,. r-e,-, ,-,e. ,,4+., , - , . . _ , --. m- -..,v,p.---,-e,,
-, , .,r4, - - -,,m -yc - , . - -. - - - - - . - ,.
. _ _ _ _ _ _ - - . _ . _ _ . __ _ _ _ _ _ - ~ _ . _ _ _ _ , _ _ _ . _ _ _ _ _ _ _ _ -
i j 50 i
I i We need not look beyond the first alternative criterion. In our view, the deficiency in PECo's emergency plan identified here is not so significant as to warrant f
l license suspension. Primary medical arrangements for I
l contaminated and injured onsite personnel have been made and 4 found adequate. All that is lacking are backup arrangements 1
with an additional hospital closer to the site than HUP.for 1
those contaminated persons whose traumatic injuries require immediate medical attention. Moreover, the deficiency is
]
not a permanent one. Although we prescribe no schedule, we
. trust that.the Licensing Board and the parties
~
(particularly, PECo) will act as expeditiously as possible i
in response to our remand, and that complete and adequate l backup medical arrangements will be in place soon. In these circumstances, license suspension is not warranted.48 (Footnote Continued) transport time (for example, by air) could be reasonably assured.
We note that the court in GUARD, supra note 45, did 4 not direct the Commission to suspend the operating licenses for the San Onofre facility, despite its determination that the requirements of 10 C.F.R. S 50.47 (b) (12) had not been i fulfilled. And in a policy statement issued in response to j the court's remand, the Commission explicitly approved
! interim reliance on section 50.47 (c) (1) as a means to
- address the offsite emergency planning problem identified in l GUARD. See 50 Fed. Reg. 20,892, 20,893-94 (1985). Our ;
' determination not to suspend PECo's operating license here >
is thus consistent with both the court's and the I
Commission's actions in a similar circumstance.
l 1
1 l
l l
l .
I I, ,_ _ _ _ _ _ - - . - - _ , , - . . . - - - _ - - - . - . . - - . . ~ - - - - - . - - - - - - . . , - ~ . - . , -,------..-,- - --- - -
51 II. AWPP's Appeal AWPP's arguments on appeal challenge the Licensing Board's disposition, after hearing, of two AWPP contentions.
One concerns the potential for aircraft carburetor icing caused by water vapor emissions from the Limerick cooling towers. The other contention raises questions about the effectiveness of PECo's quality assurance program. After review of the record and the arguments presented here, we conclude that there is no basis for overturning the Licensing Board's decision in either of these areas.
A. Aircraft Carburetor Icing AWPP's contention V-4, raised as an environmental issue under NEPA, states:
Neither the Applicant nor the Staff have [ sic]
adequately considered tbe potential for, and the impact of, carburetor icing in aircraft flying into the airspace that may be affected by emissions from the Limerick cooling towers.
AWPP Motion to Reword Contention V-4 (September 26, 1983).
The Licensing Board succinctly explained that "[c]arburetor icing is a well-recognized hazard to carburetor-equipped aircraft [,} . . . caused by water vapor freezing in the carburetor . . . . If permitted to accumulate, the ice can cause degrading engine performance to the point of failure."
LBP-84-31, 20 NRC at'454. The Limerick facility uses two natural draft hyperbolic cooling towers to remove waste heat
'from the plant. About 35 million gallons of water vapor will be released per day from the towers, creating both visible and invisible plumes. Smith and Seymour, fol. Tr.
t
52 6234, at 5. AWPP fears that these emissions will cause carburetor icing in aircraft flying in the vicinity of the plant and that inexperienced pilots, in particular, will be unable to deal with this potential problem.
The Licensing Board held five days of hearings on contention V-4, at which several witnesses for PECo and the staff (including meteorologists and pilots) testified. AWPP also presented testimony from one witness, its lay representative, who is a chemist and pilot. The Board concluded that contention V-4 lacks merit. Specifically, the Board found that PECo, "without any reasonable contradiction, has established by the overwhelming preponderance of the evidence that the Limerick cooling tower plumes will not have temperature and moisture conditions significantly different from the ambient air beyond a quarter mile from the tower." LBP-84-31, 20 NRC at 456. Within a quarter mile, a plane would pass through the area "in a matter of seconds -- much too soon for hazardous carburetor ice to accumulate." Id. at 462. The Board stressed that these findings are based on several conservative assumptions -- among them, the " unrealistic" assumption that a pilot could or would do nothing to prevent or remedy carburetor icing, if encountered. Ibid. In this regard, the Board noted that 99 percent of the carburetor aircraft flown in the Limerick area are equipped with carburetor heat systems. By use of these systems and proper I
l I l l l
i 53 i
flight procedures, a trained pilot could avoid carburetor 4
icing problems. Id. at 462-64. ,
t AWPP attacks the Licensing Board's decision on several grounds. Essentially, it contends that the plume of water vapor emitted from the Limerick cooling towers extends over l
a greater distance and poses more of a hazard to aircraft in the vicinity than acknowledged by the Board. AWPP also asserts that detection of carburetor icing is difficult because most planes do not have gauges to indicate icing, and the symptoms of icing can be confused with those of i
other aircraft failures. Thus, if icing cannot be readily detected, pilots (especially those who are inexperienced) cannot always respond quickly enough. AWPP, in addition, objects to certain aspects of the Board's decision on procedural grounds. We find none of AWPP's arguments, 1
however, convincing.
l AWPP first argues that PECo and the Board improperly relied on data generated by the 1981 Thomson-Pennsylvania The State University study of cooling tower plume behavior.
results of that study show that, beyond a quarter mile from the towers, the temperature and humidity within the plume are indistinguishable from those of the ambient air. Id. at 458. In AWPP's view, the towers used in that study (at the Keystone power plant in western Pennsylvania) differ from AWPP those at Limerick, making any comparison unreliable.
also asserts that the purpose of the Thomson study was not
l 54 to study the issues it regards as critical here -- i.e.,
invisible plumes and the dietances traveled by such plumes.
Finally, AWPP complains that PECo's witnesses did not perform the Thomson study themselves.
The Licensing Board correctly determined that the results of the Thomson study are valid for Limerick. The evidence and testimony cited by the Board, and not contradicted on this record, show that the applicable weather and topographical conditions at Limerick and Keystone are quite similar, and the difference in cooling tower height would not affect plume behavior. Both visible and invisible plumes were tested by airplane flights cutting across and through the plumes at various altitudes and distances up to 10 miles. See id. at 458-59. See also Smith and Seymour, fol. Tr. 6234, at 5-6.
The fact that PECo's witnesses themselves did not perform the Thomson plume study does not detract significantly from the weight properly accorded to their testimony or render the results of the study invalid. We held long ago that an expert witness may testify about analyses performed by other experts. See Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 332 (1972) , where we observed that "[ain expert is, of course, not expected to derive all his [or her) background data from experiments which he [or she]
personally conducts; if that were required, scientific
1 55 l.
experts would rarely, if ever, be qualified to give any -
opinion on any subject whatsoever." Expert testimony that relies on the work of others is essentially hearsay.
Hearsay, however, is generally admissible in administrative proceedings, providing its reliability can be determined --
l usually through questioning of the witness giving the hearsay. Id. at 332-33. See Duke Power Co. (William B.
McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC
)
453, 477 (1982). Here, PECo witnesses Maynard E. Smith and l
David Seymour (experienced meteorologists and, in the latter case, a holder of a commercial pilot's license) were subject l
I to considerable cross-examination by AWPP at the hearing.
AWPP thus had a fair opportunity to discredit their j testimony and reliance on the Thomson study. But as noted above, AWPP failed to do so.
l AWPP similarly objects to the Board's reliance on the i
results of an experiment conducted on the ground with an 4
i automobile engine and airplane carburetor. See LBP-84-31, r i 20 NRC at 461; Smith and Seymour, fol. Tr. 6234, at 9. AWPP contends that the study's results are invalid because it was not done with an airplane in flight. It also complains that PECo's witnesses did not take part in these experiments, which were performed by other individuals (Gardner and Moon). We have already determined, as discussed above, that f) PECo's experts may testify about the experiments of others.
As for the study itself, its purpose was to accumulate the l r
i l
t
56 greatest amount of carburetor ice in the least amount of time -- i.e., the worst possible conditions -- in order to determine various power losses over intervals of time. As explained by witness Seymour, creating and maintaining the conditions most likely to cause carburetor icing are more easily accomplished in a laboratory environment. He also stressed that while the type of engine used is not important, the use of an airplane carburetor to simulate aircraft behavior is necessary, given the purpose of the experiment. Tr. 6507-09. Thus, the worst case scenario created in this laboratory experiment provided more conservative, and therefore more reliable, results than could have been achieved in the manner AWPP suggests.
AWPP repeatedly argues that PECo's and the staff's testimony about aircraft and pilot response to carburetor icing is contradictory; that it is not fact, but on'ly opinion; and that, therefore, the Board's decision is not based on "'beyond-a-reasonable-doubt' fact." Appeal of Air
& Water Pollution Patrol (October 10, 1984) [hereafter, "AWPP Brief"] at 15. We have reviewed the record, along with these claims, and disagree with AWPP. The Licensing Board's decision fully and accurately summarizes the written evidence and oral testimony adduced at the hearing. See LBP-84-31, 20 NRC at 454-64. No purpose would be served by our rehearsal of it here. Suffice it to say that we do not see the asserted contradictions in the testimony perceived
57 by AWPP.
' We see instead a record well developed by the testimony of the expert witnesses presented by PECo and the staff.50 On the other hand, AWPP's evidence is more anecdotal than empirical, and, despite AWPP's protestations to the contrary, neither it nor AWPP's cross-examination t
49 For example, one such contradiction upon which AWPP dwells is assertedly found in the testimony of staff witness Bernard Geier, Manager of the Ceneral Aviation and Commercial Division, Office of Flight Operations, Federal Aviation Administration. AWPP points to Geier's statement that " ice can form instantaneously," claiming it contradicts PECo's testimony that it would take approximately eight minutes (without carburetor heat) for enoughSee carburetor ice Geier, fol.
to form to cause a hazard to the aircraft.
Tr. 6883, at 2; Smith and Seymour, fol. Tr. 6234, at 9.
Geier's complete testimony on this matter, however, states:
"Although ice can form instantaneously under the proper conditions, it does not accumulate at such a rate that the pilot who pays attention to the signs cannot prevent engine stoppage due to blocking by ice of the carburetorcan throat."
Geier, fol. Tr. 6883, at 2 (emphasis added). AsIt is be not seen, the statements are clearly reconcilable.
the mere formation of ice that is significant, for ice can form and quickly melt under certain climatic conditions.
What is significant is the buildup of ice and the rate at which it develops. Geier was not able to set a time frame within which enough ice could accumulate to cause a hazard, but he acknowledged that he had no basis for disputing PECo's testimony on that score. Tr. 7002-03. His principal point was that aircraft are equipped with the means, and pilots are routinely trained, to prevent and eliminate carburetor icing before it accumulates to a hazardous level.
Celer, fol. Tr. 6883, at 2-5.
50 As noted by the Licensing Board and not challenged by AWPP, the credentials of the five PECo and staff witnesses are impressive. All are experienced meteorologists and/or pilots. One is also a nuclear engineer. See LBP-84-31, 20 NRC at 455.
t l
58 seriously challenged the' testimony of t*.e PECo and staff witnesses. See, e.g., Romano, fol. Tr. 6725.51 AWPP's objection that the witnesses testified about their opinions rather than the facts is unavailing. Expert testimony, such as that here at issue, is typically a mixture of scientific principles (known to the expert through his or her training and experience), data derived from analyses or by perception, and the expert's opinions based on these principles and data.52 It is the Licensing [
Board that must " find the facts" based on the whole record, which includes not only the proffered expert opinion but also any contrary evidence (including opposing opinion).
Here, the Board found the expert opinion testimony of PECo's and the staff's witnesses to be convincing and unrefuted.
To be sure, AWPP disagrees with these conclusions, but it has failed to demonstrate that the Board's decision does not 51 AWPP refers to and submits with its brief on appeal several articles and other references that are not.in the evidence of record before the Licensing Board. It is well-settled that, as an appellate tribunal, we must judge appeals on the basis of the record developed at the hearing below. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1) , ALAB-648, 14 NRC 34, 36 (1981).
Consequently, the additional material supplied by AWPP is not properly before us and will not be considered.
52 Rule 702 of the Federal Rules of Evidence -- to which we have_previously turned for guidance -- specifically provides that an expert witness may testify "in the form of an opinion or otherwise." See McGuire, 15 NRC at 475.
i 59 l comport with the record or is unreasonable. Moreover, contrary to AWPP's view, the Board measured the evidence by j
the correct standard of proof -- a preponderance of the evidence. See, e.g., LBP-84-31, 20 NRC at 456. See also Commonwealth Edison Co. (Zion Station, Units 1 and 2) ,
I ALAB-616, 12 NRC 419, 421 (1980).53 AWPP's "due process" arguments are likewise without merit. AWPP's representative contends that he "was not
- given [his] legal right to cross examine as [his] own witness as Judge Brenner had, before the hearings, told [him hel would have." AWPP Brief at 5. We fail to comprehend l what AWPP's point here is. What is clear, however, is that AWPP was given more than ample time for cross-examination of PECo's and the staff's witnesses, as well as time for presentation of its own case. See Tr. 6252-6433, 6442-6529, 6685-6713, 6716-23, 6899-69'14, 6920-7090, 7109-20; Romano, fol. Tr. 6725; Tr. 6853-56.54 We discern no way in which I
i AWPP's right to cross-examination.was impaired.
53 The "beyond a reasonable doubt" standard urged by AWPP applies in criminal, not civil or administrative, proceedings. See McCormick on Evidence SS 339, 341,.357 (3d ed. 1984).
54 Indeed, our review of the hearing transcript indicates that the Board was extremely generous in its l
allotment of time to AWPP for cross-examination, especially
' in light of the disorganized and confusingThe questioning of Board also gave the witnesses by AWPP's representative. ,
(Footnote Continued)
{
i
4 60
]
AWPP also charges that the Licensing Board was personally biased against it. Evidence of this bias, according to AWPP, can be found in the Board's reference to
) "an unfortunate apparent inability [by AWPP's
- representative] to understand the testimony." LBP-84-31, 20 NRC at 459. AWPP also cites other Board statements to the effect that AWPP did not contradict.certain PECo testimony.
l We believe AWPP is overly sensitive about language I
commonly used in legal proceedings and opinions. There is i
i no indication, in either the Board's decision or the lengthy transcript, of any bias whatsoever on the part of the Board.
In fact, the Board took due account that AWPP was not t
represented by counsel and was quite indulgent of the shortcomings in AWPP's participation at the hearing. The Board comments to which AWPP takes offense are consistent with the record and merely reflect the Board's judgment concerning the persuasiveness of the respective positions of
, the parties. We perceive r.o perscnal disparagement and we believe none was intended. As the Commission recently observed, "the right to an impartial adjudicator does not mean that favorable rulings must be divided equally between l
(Footnote Continued) l AWPP a second chance to submit a cross-examination plan for PECo's witnesses, after it failed to do so initially. See Licensing Board Memorandum and Order of December 1, 1983
{ (unpublished) , at 8.
1 I
61 the parties, or that a judge may not occasionally use strong language toward a party or in expressing his (or her] views
~
on matters before him [or her]." Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1) , CLI-85-5, 21 NRC 566, 569 (1985), aff'd sub nom. Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720 (3d Cir. 1985). In any event, disqualifying bias must stem from an extrajudicial source --
that is, it must be based on something other than what the adjudicator has learned from participating in the case.
Houston Lighting and Power Co. (South Texas Prcject, Units 1
& 2) , CLI-8 2-9, 15 NRC 1363,.1365 (1982). AWPP has alleged no extrajudicial source for the Board's asserted bias and we see none.
AWPP complains that witness Geier was permitted to correct certain errors in his prefiled testimony. Such l changes are routinely made at the beginning of a witness's testimony, in order to correct typographical and other errors as well as to update the testimony.55 The i
corrections to Geier's testimony were necessary to reflect a I recent change in traffic patterns at the Limerick airport.
l Tr. 6884-85. Inasmuch as AWPP had an opportunity to i
I i
55 AWPP's witness was afforded such an opportunity with respect to his prefiled statement. See Tr. 6723-25.
t
62-cross-examine Geier, there is no basis for its not fully developed claim of error.
Finally, AWPP asserts that its contention V-4 has merit and requires "special attention." AWPP Brief at 14. The record and Licensing Board's decision unequivocally show that this contention got special attention. The Board initially denied PECo's motion for summary disposition and went on to hold five days of oral hearings on this issue alone. See Licensing Board Memorandum and Order of-November 8, 1983 (unpublished), at 3-8. We have now reviewed the matter further. The "hard look" at environmental issues required by NEPA has been fully satisfied. See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972). Moreover, we agree with the Licensing Board that the record shows that water vapor emissions from the Limerick cooling towers will not cause a significant carburetor icing hazard to aircraft.56 Thus, contention V-4 --
is without merit.
56 It is important to keep in mind that the Licensing Board did not find that aircraft could never be placed in a hazardous situation by carburetor icing. LBP-84-31, 20 NRC at 464. It properly recognized that such a circumstance is possible. But the Board stressed, first, that the conditions in the plume (simply a man-made cloud) most likely to be encountered by aircraft in the area are virtually indistinguishable from the conditions naturally present in the air, and, second, that. routine procedures and means exist for pilots to prevent or eliminate icing. In (Footnote Continued)
1 l
63 B. Quality Assurance A chronology of AWPP's quality assurance (QA) contention VI-1 is necessary to an understanding of the arguments AWPP raises on appeal. As originally proffered, 1
the contention stated:
Applicant has failed to establish and carry out an i adequate quality assurance program as required by This is shown by a Appendix B of 10 CFR Part 50.
pattern of careless workmanship, departure from specified procedures, together with faulty inspection and supervision.in the construction of 4
Units 1 and 2 of the Limerick Generating Station.
It went on to refer to, among other things, unspecified l
defects in concrete, record keeping infractions, the failure to follow proper welding procedures, the effects of quarry blasting, and inadequate corrective actions. The basis of the contention was a list of NRC inspection reports and related correspondence from 1976-1978. Supplemental Petition of Coordinated Intervenors (November 24, 1981) at j
i 74-75. Noting the importance of an effective QA program to the safety of a plant, the Licensing Board conditionally i
I admitted this contention in 1982 (except insofar as it (Footnote Continued) l other words, the Limerick emissions pose no greater threat of carburetor icing than already exists.
57'The NRC requires an applicant to have a quality
' assurance program to ensure that a plant and its parts are designed and constructed or fabricated in accordance with i
acceptable standards. The necessary' elements of a QA program are set forth in 18 criteria specified in 10 C.F.R. Part 50, Appendi:: B.
l i
64 concerned the effects of quarry blasting), " subject to the development of specific contentions and their bases."
LBP-82-43A, 15 NRC 1423, 1518 (1982). See also Licensing Board Memorandum and Order of July 14, 1982 (unpublished) ,
~
at 6. After several months of informal discovery, the Board set a time for the filing of such specifications. Licensing Board Memorandum and Order of February 10, 1983 (unpublished) , at 6.
AWPP accordingly submitted a revised version of contention VI-1. It still asserted, in general terms, a pattern of careless workmanship and lack of quality assurance during the construction of Limerick. The basis for the contention, however, dealt principally with various welding deficiencies discussed in several NRC inspection reports. See Letter to Licensing Board from J.A. Dorsey (April 12, 1983), Enclosure ("VI. Quality Assurance / Control") [hereafter, "AWPP Revised QA Contention"). After a special prehearing conference, the Licensing Board rejected the contention. The Board stressed the importance, in litigating QA problems, of showing either existing construction defects or a pattern of related deficiencies, rather than merely existing assorted noncompliances over the years. Despite the additional information supplied by AWPP, "[t]he Board could perceive no particular pattern from the allegations or summaries of reports in the contention." LBP-83-39, supra note 8, 18 NRC i
__ - m
65 at 89. Nonetheless, it expressed some concern about whether PECo's corrective action for certain defective welds identified in the staff's Inspection Report No. 50-353/76-06 (November 10, 1976) was adequate. The Board, however, believed this matter could be resolved easily by appropriate affidavits and made its rejection of revised contention VI-1 subject to these forthcoming assurances from PECo. Id. at 89-91.
The information provided by PECo was not quite what the Board expected. See Tr. 4610-14. Thus, following AWPP's request for reconsideration and subsequent discussion at a prehearing conference, the Board reversed its decision and admitted contention VI-l in part, reworded as follows:
Applicant has failed to control performance of welding and inspection thereof in accordance with r
quality control and quality assurance procedures and requirements, and has failed to take proper and effective corrective and preventive actions when improper welding has been discovered.
The Board also directed AWPP, after further discovery, to ,
file a list of all the welding deficiencies (including those l relating to inspection and correction) it believed were pertinent to the contention, and to identify the reports or other documents relevant to each such instance. The Board stressed that AWPP's case on the merits would be limited to the instances set forth in the list. As for the remainder of the contention that did not concern welding (for example, the part alleging improper placement of concrete), the Board
66 found no basis for it and therefore confirmed its earlier rejection of this matter. Licensing Board Memorandum and Order of October 28, 1983 (unpublished) , at 5-7.
AWPP submitted a list of approximately 35 instances of welding " infractions." O In response to PECo's motion to strike certain items on the list, the Board struck some parts as beyond the scope of the contention and retained others. Licensing Board Memorandum and Order of April 2, 1984 (unpublished). Litigation of the contention consumed about four days of hearing. Witnesses testified for PECo and the staff and were cross-examined by AWPP. The direct testimony offered on behalf of AWPP, however, was rejected for the reasons set forth in Licensing Board Memorandum and Order of May 2, 1984 (unpublished), at 1-6. At the conclusion of the hearing, the Board announced its tentative judgment that PEco had overwhelmingly met its burden of proof on the contention. It thus determined there was no need for PECo to file proposed findings of fact and conclusions of law. The Board deferred final ruling, however, in order to give AWPP an opportunity to file its proposed findings. Tr. 11,046-60.
58 Although it is not dispositive of AWPP's appeal, we note that AWPP's list (dated March 5, 1984) is technically not part of the official record in this proceeding. This document has no certificate of service and was not served on (Footnote Continued)
67 After receipt of AWPP's findings, the Board heard oral argument and ruled from the bench that contention VI-1 lacked merit. See Tr. 11,915-94. It later confirmed this ruling in its second partial initial decision. LBP-84-31, 20 NRC at 511. The Board noted that, although some welding defects had been discovered among the two million safety-related welds at Limerick, there was no evidence of a pattern of such deficiencies, so as to suggest a breakdown of the Limerick QA program. Id. at 512-13. The Board'also expressed its satisfaction with the truthfulness of PECo's witnesses and with the corrective actions undertaken by PECo. Id. at 512.
AWPP raises essentially four arguments on appeal from the Licensing Board's decision on contention VI-1. We ,
1 address them in turn, finding each without merit. I
- 1. AWPP first objects to the Board's rewording of its contention so as to focus only-on welding matters. -In its view, the Board " emasculated the force of the contention" -- i 1.e., a pattern of carelessness during construction of the plant. AWPP Brief at 16. Apparently, AWPP intended to litigate an asserted overall breakdown in the Limerick construction quality assurance program. But if the Board (Footnote Continued) either us or the Commission's Secretary. See 10 C.F.R.
S 2.701. ,
, % - ----------.---e t'-y9
68 committed any error, it likely was in admitting the contention in the first place.
In our view, AWPP's original contention (see p. 63, supra) lacked the basis and specificity required by the Commission's Rules of Practice. See 10 C.F.R. S 2. 714 (b) .
If AWPP sought to litigate a complete breakdown in QA, then surely more of a basis was required than a few NRC 4
inspection reports identifying discrete deficiencies. See generally Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 16-44 (1985).
The Licensing Board essentially recognized this by conditionally admitting the contention, subject to greater
- specification in the future. See LBP-82-43A, 15 NRC at 1518. A short time later, however, we held the conditional admission of any contention to be unauthorized under the Commission's rules. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 467 (1982).
On review of that decision, the Commissicn held further that the admission of contentions after the time specified in the Rules of Practice was to be determined by balancing the five
" late contention" factors in 10 C.F.R. S 2. 714 (a) (1) . Id.,
CLI-83-19, 17 NRC 1041, 1045 (1983). Thus, the Licensing Board's subsequent admission and litigation of AWPP's contention VI-1 in any form -- without balancing the five factors in section 2.714 (a) (1) -- afforded AWPP greater
69 participatory rights than those to which it was strictly entitled 59 But even if the conditional admission of contention VI-1 were authorized, we see no error in the Board's limiting of its. scope to possible welding deficiencies.
When AWPP submitted its revised contention in April 1983, its focus was clearly on welding.. See AWPP Revised QA contention at 1-4. After the Board's condit'ional rejection of the revised contention in LBP-83-39, 18 NRC at 88-91,60
' Indeed, the Licensing Board gave AWPP sev'eral gratuitous. opportunities to conform its QA contention to the Commission's basis and specificity requirements.
AWPP seems to interpret certain language in that decision (LBP-83-39) as unfairly critical of AWPP's reliance on NRC staff inspection reports. It argues that the Licensing Board's comments in this regard show the Board's bias against AWPP. . AWPP Brief at 18-19. AWPP, however, has misunderstood the Board's statements. The Board ~does not state that an intervenor can never properly rely on staff documents like. inspection-reports.' -Rather,-it states that-
"the mere recitation of unrelated adverse findings" in such reports "does not supply information on what specifically would be litigated." It is too " broad" and " unfocused."
But where "particular allegations of specific patterns of QA/QC [ quality control] problems" are shown through the use of staff inspection' reports, such matters can and will be considered and, if justified, litigated. LBP-83-39, 18 NRC at 89 (emphasis added). Cf. Waterford, ALAB-812, 22 NRC'at i
14, 17 & n.7 (staff documents are. generally acceptable.
evidence to support motion to reopen on QA).
i AWPP also-claims bias in the Board's conditional
- rejection of its revised contention and in an assertedly possibly inaccurate statement-by the Board. AWPP Brief at
- 19. As noted at pp. 60-61, supra, unfavorable rulings do l not establish bias on the part of the adjudicator. Nor do (Footnote Continued) l l
I-
70 AWPP successfully sought reconsideration, again raising concerns principally with welding. See Letter to Licensing Board from F.R. Romano (August 5, 1983), Enclosures. The only other articulated issue that AWPP repeatedly tried to raise (including here on appeal) concerns certain defects in concrete placement at the site. But as the Licensing Board noted, AWPP's representative had raised this identical issue several years earlier in a petition to the NRC's Director of Nuclear Reactor Regulation. The matter was thoroughly investigated, and tha staff was ultimately satisfied with PECo's resolution of the problem. DD-79-16, 10 NRC 609, 610-11 (1979). When pressed by the Board, AWPP was unable to provide any new information concerning possible concrete defects; it simply expressed its belief that the matter had not been fully corrected. See Tr. 4883-94, 4911-12. In these circumstances, the Board's admission of a contention limited in scope to welding matters was fully justified.
See Tr. 4610-14, 4912-19.
- 2. AWPP argues that the Licensing Board prejudged its case when the Board " arbitrarily" dispensed with the need (Footnote Continued) inadvertent and possibly inaccurate statements. Moreover, in this instance, the Board reversed itself in response to AWPP's request for reconsideration and admitted the contention on welding. Given the Board's dogged pursuit of this matter and the many opportunities afforded AWPP (see ,
pp. 63-66 and note 59, supra), the latter's claim of bias is particularly groundless. l l
1 l
l
71 for PECo to file proposed findings of fact and conclusions f
of law. AWPP Brief at 19. We disagree. At the time the Board announced its tentative-judgment that PECo had overwhelmingly met its burden of proof and thus relieved PECo of the obligation to file proposed findings'an'd conclusions, the Board had already heard all of the evidence presented on contention VI-1. Tr. 11,046-48. Given the t
i completeness of the evidentiary record at this point, grejudgment on the part of the Board was not possible. The l Board simply gave its preliminary assessment of the evidence of record and eliminated a round of filings (PECo's -proposed findings and conclusions) tha+ would have been superfluous ;
i in the circumstances.
More important, the Board explicitly stated that its
! determination was only tentative, and it strongly urged AWPP l to file proposed findings and conclusions of its own.. Tr.
11,048-60. AWPP did so and presented oral argument to the Board as well. See Tr. 11,915-94. Thus, AWPP was, in fact, i
afforded a full and fair opportunity to be heard. Finally, L the Commission's Rules of Practice provide licensing boards l
with considerable flexibility to regulate the course of a l hearing and designate the order of procedure. 10 C.F.R. ;
i SS 2. 718 (e) , 2.731. See Metropolitan Edison Co. (Three Mile i i
Island Nuclear Station, Unit 1) , ALAB-772, 19 NRC 1193, j i
I 1245-46 (1984), rev'd in part on other grounds, CLI-85-2, 21 [
NRC 282 (1985). Although the rules set forth a general
a 2
72 schedule for the filing of proposed findings, licensing boards are authorized to alter that schedule or to dispense a
with it entirely. See 10 C.F.R. S 2.754 (a) . The Licensing Board's actions here are therefore entirely consistent with the Rules of Practice.
- 3. ~AWPP disputes the Licensing Board's finding that
"[t]he circumstances relating to two structural weld deficiencies . . . have been fully and truthfully described in the Applicant's and Staff's testimony." See LBP-84-31, 20 NRC at 513. The welds in question -- performed during early plant construction -- were in an. area not readily
- accessible; in order to reach the area, the welder attached 1'
the electrode holder to a broomstick -- hence, AWPP's 2
characterization of this incident as the " Broomstick i
i 61 One aspect of the Board's conduct of the proce'eding, though not challenged by AWPP, warrants'some comment. After receiving AWPP's proposed findings and the replies of the staff.and PECo, the Board' issued its final ruling on contention VI-1 orally from the bench. See Tr. 11,915-94.
Fortunately, the Board later confirmed that ruling in LBP-84-31, 20 NRC at 511-13, for the Commission's rules require an initial decision to be in writing. 10 C.F.R. ,
S 2.760 (c) . The Board's discussion of contention VI-1 in LBP-84-31, however, is brief, supplemented with many references to the transcript of its bench ruling. Although it is not legally deficient, this method of decisionmaking in complicated NRC licensing hearings has some significant drawbacks and should be avoided.- for one thing -- as is ,
evident from this case -- a board's bench ruling provides many opportunities for interruption and argument by the parties. As a result, such a transcript is hard to follow and counterproductive to meaningful appellate review.
e e ww ,., - - - - - - , - - ~ - -a a---. ,w- w- ,gn,
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/3 Affair." An NRC inspector discovered these welds in 1976 and concluded that the welder who had done them was not qualified to use this " extension" technique. PECo, however, disagreed with the NRC inspector's interpretation of the pertinent codes and standards. After closer visual inspection, the NRC found the welds themselves.to be unacceptable, despite earlier acceptance by a quality control (QC) inspector for PECo's architect-engineer and constructor, Bechtel Power Corporation. PECo subsequently repaired the welds and reinspected all the accessible structural welds that had been inspected by the Bechtel inspector who had accepted the " broomstick" welds. Boyer, et al., fol. Tr. 10,321, at 40-41. PECo also issued a directive prohibiting the unauthorized use of electrode extensions and provided additional training for all QC and field welding personnel. Durr and Reynolds, fol. Tr.
10,977, at 18-20.
According to AWPP, however, the testimony of PECo's witnesses (especially Boyer and Clohecy) in this regard was not truthful.62 AWPP provides no references whatsoever to this claimed untruthfulness at the hearing, but directs our attention, instead, to portions of an earlier deposition by AWPP does not raise similar objections to the testimony of staff witnesses Durr and Reynolds.
i
74 these individuals, assertedly showing their " evasion." AWPP Brief at 20. The deposition, however, was not admitted or introduced into evidence in this proceeding and therefore cannot be relied upon. See note 51, supra. AWPP's reliance on this extra-record material is particularly inappropriate here, where the deponents were available for, and subject
! to, lengthy cross-examination by AWPP. See Tr. 10,456-617, 10,644-75, 10,683-719, 10,728-98, 10,816-30, 10,841-927.
Moreover, the Licensing Board specifically reminded AWPP's representative that the deposition was not in evidence but could nonetheless be used to question the witnesses. Tr.
10,602-04. Thus, AWPP had an opportunity to establish the witnesses' " untruthfulness" on the record; having failed, it cannot now attempt to do so on the basis of material not in the record.63 AWPP does not otherwise directly attack the evidence adduced by PECo and the staff concerning the various welding deficiencies specified by AWPP in advance of the hearing.
See p. 65, supra. AWPP implies, however, disagreement with the Licensing Board's conclusion that these deficiencies are isolated, nonprogrammatic, and, particularly given their source, in general, indicative of the effectiveness of the Limerick OA program. There 63 Even if AWPP could properly rely on the deposition in question, our review of the referenced. portions reveals l no incensistency with the deponents' testimony at the j hearing.
l
. . l l
1 l
l 75 has been no " breakdown" of the Limerick QA program for welding.
LBP-84-31, 20 NRC at 513. AWPP further suggests that PECo management " condoned" improper welding procedures. AWPP Brief at 20. But we have reviewed the testimony and fully agree with the Board's judgment. To be sure, the NRC inspection reports covering 10 years of construction activity show some violations in welding and inspection procedures. But the record (especially with regard to the instances highlighted by AWPP) shows that the violations were few in number for the two million safety-related welds at the facility and did not demonstrate a pattern of improper actions. Moreover, where deficiencies were identified, PECo performed extensive reinspection of the affected work and took proper corrective action. See Durr and Reynolds, fol. Tr. 10,977, at 3, 11-23; Boyer, et al.,
fol. Tr. 10,321, at 4, 27-90.
Our observation in Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 346 (1983), is pertinent here:
(iln any project even remotely approaching in magnitude and complexity the erection of a nuclear power plant, there inevitably.will_be some construction defects tied to quality assurance lapses. It would therefore be totally unreasonable to hinge the grant of an NRC operating license upon a demonstration of error-free construction. Nor is such a result mandated by either the Atomic Energy Act of 1954, as amended, or the Commission's implementing regulations. What they require is simply a i
finding of reasonable assurance that, as built, l
[
I l
76 the facility can and will be operated without endangering the public health and safety. 42 U.S.C. SS 2133 (d) , 2232 (a) ; 10 C.F.R. .
S 50.57 (a) (3) (i) . Thus, in examining claimo of quality assurance deficiencies, one must look to the implication of those deficiencies in terms of safe plant operation. [ Footnote omitted.]
The requisite reasonable assurance exists if all ascertained construction errors have been corrected, and there is no showing of a pervasive breakdown in quality assurance so as
'to raise serious doubt about the overall safety of the
, plant. Ibid. The record shows 'that test has been met here.
- 4. AWPP's last argument is that the Licensing Board erred in rejecting the proffered testimony of AWPP's witness, Dr. Gudmund R. Iversen, a professor of statistics
[ at Swarthmore College, Under the terms of an earlier Borrd order, the prefiled direct testimony for all parties on contention VI-1 was due by April 16, 1984. Licensing Board Order of March 15, 1984 (unpublished), at 6. See also 10 C.F.R. S 2.743(b). In its April 16 filing, AWPP simply
- submitted Dr. Iversen's name as a witness concerning PECo's auditing methods; no testimony or statement of the witness's qualifications was tendered. Testimony of Air & Water Pollution Patrol (April 16, 1984) at J. The Licensing Board ruled that Dr. Iversen would not be permitted to testify because of AWPP's failure to comply with the Board's order and 10 C.F.R. S 2.743(b), requiring the advance filing of written direct testimony. Memorandum and Order of May 2 at
- 3. AWPP nonetheless produced Dr. Iversen and his written
77 testimony the day the hearing began, seeking reconsideration of the Board's ruling. The Board entertained argument on the matter but again rejected the testimony because it was unjustifiably and unduly late. The Board also concluded that the testimony was not confined to the scope of the revised contention or sufficiently probative of the welding QA issue under consideration. Tr. 10,413-36, 11,931; LBP-84-31, 20 NRC at 510.
The Board was entirely justified in rejecting AWPP's testimony on the ground of lateness. AWPP had ample notice of the filing requirements for this particular direct testimony. See Tr. 8322-24, 10,413, 10,415-16, 10,417, 10,429. Moreover, by this time AWPP had been a participant in the proceeding for several years and had reason to be knowledgeable about the Commission's general requirements for prefiling testimony. See 10 C.F.R. S 2.743 (b) . Its excuse that it is "a citizen group without any attorney and
. . . [the] resources of the Applicant" is thus particularly unavailing. AWPP Brief at 21. See Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981) ("the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations"). As the Licensing Board stressed, these are l complex proceedings that demand an orderly process; requiring parties to produce their direct testimony in
j i
i
! 78
}
advance of oral hearing is not a mere technicality but an essential ingredient of such process. See Tr. 10,431.
- The Board's assessment of the relevance and probative i
I value of Dr. Iversen's testimony is also correct. We have examined this testimony (AWPP Exh. 3) and find that it refers to various PECo audit reports and other matters not encompassed within revised contention VI-l and AWPP's list of welding deficiencies. See pp. 65-66, supra. Although
- AWPP refers ,to Dr. Iversen's " statistical analysis" (AWPP i
y Brief at 21) , no such analysis is included in the four pages of proffered testicany; instead, there is only generalized j criticism of apparently PECo's program for auditing the I l l installation of pipe hangers. See AWPP Exh. 3 at 2-3. The 1
Board reasonably concluded that, even if timely, this
- 1 testimony would not have been of probative value to the I consideration of contention VI-1.
- l III. Anthony / FOE's Appeal ARCO Pipe Line Company transports petroleum products a
through an underground pipeline that traverses the Limerick site. Columbia Gas Transmission Corp. similarly operates j two underground natural gas pipelines near the site.
! LBP-84-31, 20 NRC at 467-69, 474-76. A major part of the i Licensing Board's second partial initial decision addresses Anthony / FOE's concerns, set forth in contentions V-3a and l
V-3b, about the effects of a pipeline accident.on the l
~
79 Limerick nuclear plant. See id. at 464-97. These contentions state:
V-3a: In developing its analysis of the worst case rupture of the ARCO pipeline, the Applicant provided no basis for excluding consideration of siphoning. Thus, the consequences from the worst case pipeline accident are understated.
V-3b: In discussing deflagration of gas and petroleum due to pipeline rupture, no specific consideration has been given to the effect of radiant heat upon the diesel generators and associated diesel fuel storage facilities.
Licensing Board Order of November 22, 1982 (unpublished), at 5, 7.
The Board oversaw the development of an extensive record on these contentions, devoting considerable attention to "the nature of the materials transported in the pipelines, how much of these materials could react to produce heat and blast overpressures and the ability of safety-related structures, systems and components to withstand such impacts, including interactions from the nonsafety-related structures, systems and components that could be damaged from the results of potential heat or blast impacts." LBP-84-31, 20 NRC at 466. Indeed, the Board's consideration extended well beyond the four corners of contentions V-3a and V-3b to encompass the Columbia gas pipelines and the effect of overpressures (from the detonation of fuel oil or gas released after a pipeline rupture) on various structures at the site. See, e.g., id.
1 i
80 at 465-66, 482.64 The Board determined, on the basis of "very conservative postulates of accident scenarios" and the j evidence adduced by PECo and the staff, that these structures are adequate to withstand the calculated radiant heat loads and overpressures. It therefore concluded that contentions V-3a and V-3b have no merit. Id. at 466, 467.
t Anthony / FOE raise myriad arguments on appeal in connection with the Board's disposition of their pipeline rupture contention. Apart from some more generalized arguments at the outset, Anthony / FOE's brief is essentially a collection of comments on various Board findings -- some
, expressing agreement, but most disagreeing with the Board's judgment.65 We have considered all of Anthony / FOE's i
- 64 The Licensing Board, in effect, raised these matters sua sponte. See 10 C.F.R. S 2.760a. No party complains
- here about that action. Thus -- particularly in view of the i outcome -- we need not decide if the-Board-violated the -
. internal procedure for notifying the Commission of an intent to raise an issue sua sponte. See. Houston Lighting and i Power Co. (South Texas Project, Units 1 and 2), LBP-81-54, 14 NRC 918, 922-23 & n.4 (1981).
65 Attached to Anthony / FOE's brief as " Exhibit A" is a document entitled " Rebuttal of Applicant's Reply Findings" (June 6, 1984). It was submitted to the Licensing Board, but apparently never formally accepted or rejected. On l
March 8, 1985, Anthony / FOE submitted to us their " Additions
! to Oral Argument." Neither document is authorized under the Commission's Rules of Practice, and thus they will not be
- considered. We note, however, that both of these submittals
! largely contain arguments or information already before the l Licensing Board and pressed before us in Anthony / FOE's brief l on appeal. Thus, nothing in either document -- even if considered -- would affect the outcome here.
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81 arguments in the context of the record evidence and the Licensing Board's decision and find none convincing. We i group what we perceive as related arguments and address the i most significant below.66 A. Expert Witness Qualifications
- 1. Anthony / FOE object to the Licensing Board's i
! reliance on the testimony of PECo witness John D. Walsh.
i They contend that, as a meteorologist, Walsh does not have the credentials and training to qualify him as an expert witness on their pipeline accident contentions. They also list several areas in which Walsh "was proven wrong" but do i
not provide any citations to the record or Board decision to support this allegation. R.L. Anthony / FOE Brief in Support l of Appeal (November 23, 1984) [hereafter, Anthony / FOE .
Brief"] at 2.
I We have reviewed Walsh's credentials and testimony and
! agree with the Licensing Board that he is qualified and competent to testify in connection with contentions V-3a and
{ V-3b. Walsh has an undergraduate degree in meteorology and has taken graduate level courses in meteorology, physics ~,
and mathematics. He has worked as a professional l
66 As noted above, the Board's discussion of the issues raised in conjunction with contentions V-3a and V-3b is extensive. We repeat only those facts or background
, information necessary for the disposition of the discrete i arguments raised by Anthony / FOE's appeal.
l l
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82 4
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meteorologist since 1959 and has done research in atmospheric dispersion. Walsh has also performed accident analyses for over a dozen nuclear power plants, including analyses of natural gas or petroleum products pipelines near several such plants. See Professional Qualifications (of]
John D. Walsh, fol. Tr. 5411 Tr. 5453.
The Licensing Board relied on Walsh's testimony for principally those parts of its decision that deal with the formation and dispersion of a flammable mixture i,n the atmosphere -- matters clearly within Walsh's expertise. See LBP-84-31, 20 NRC at 470-72, 476-77.67 A meteorologist is l not just the person who predicts the weather on the evening i
news. Meteorology is I [t]he study dealing with the phenomena of the
! atmosphere. This includes not only the physics, I
chemistry, and dynamics of the atmosphere, but is I
extended to include many of the direct effects of l
the atmosphere upon the earth's surface, the i
j oceans, and life in general. The goals often ascribed to meteorology are the complete-understanding, accurate prediction, and artificial control of atmospheric phenomena.
Glossary of Meteorology 367 (R. Huschke ed. 1959). In other
- areas (for example, whether the ARCO pumps would shut down),
2 j
I 6
As we stated at note 52, supr,a, we rely on the
! standard in Rule 702 of the Federal Rules of Evidence for i determining a witness's qualifications as an expert.
McGuire, 15 NRC at 475. Under that rule, a witness is j qualified as an expert by " knowledge, skill, experience,
- training, or education."
{
, , , _ , , , . . ._.--,._x
83 the Board earlier determined that Walsh was not qualified to testify, and it relied instead on the most conservative assumptions (for example, that the ARCO pumps would operate continuously, maximizing the amount of fuel released into the atmosphere). Memorandum and Order of November 8 at 9-10; LBP-84-31, 20 NRC at 470-71. The Board thus looked.
closely at Walsh's testimony and properly relied on those portions within his area of demonstrated expertise. But see pp. 90-91, infra.
- 2. Anthony / FOE also complain that Robert L. Anthony was not permitted to testify about pipelines and the Limerick site. The Licensing Board granted PECo's motion to strike Anthony's testimony, concluding that he "is not qualified by knowledge, skill, experience, training, education, or any other basis to testify as an expert on any matters related to the contentions." The Board noted that Anthony had conceded his lack of expertise, claiming he only wanted to present certain information as a " coordinator."
The Board determined, however, that the information in question was expert matter on which Anthony was not competent to testify. Memorandum and Order of December 1, supra note 54, at 1-2. See also LBP-84-31, 20 NRC at 466.
The Board's refusal to let Anthony testify was proper.
Anthony is a retired art therapist, who has participated as a lay advocate in various land use and related environmental hearings. He has no background relevant to pipeline l
l
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- location or accidents, yet his proposed testimony covered such material. See Testimony of Robert L. Anthony (November 14, 1983) at 1-3.68 This type of testimony requires '
4 sponsorship by an expert witness "who can be examined on the reliability of the factual assertions and soundness of the I
i scientific opinions found in the documents." McGuire, 15 i
NRC at 477. An expert witness would also be necessary to relate the generalized material in question to the particular pipelines at Limerick. By his own 1
acknowledgment, Anthony is not such an expert. See note 67, supra.
B. Overpressure Calculations 1 After noting several areas of agreement with the i
Licensing Board, Anthony / FOE object to certain aspects of the Board's decision insofar as it concerns the calculations
^
of the overpressures on Limerick structures in the event of l a rupture of the ARCO or Columbia pipelines. With respect
- to the ARCO line, Anthony / FOE contend that the Board should
! have used a larger " spray area" (i.e., the surface area of 3
the gasoline as it covers the ground after a pipe break) 1 68 This submission, like others (see note 58, supra) was not served properly and thus was difficult to locate for the purpose of appellate review.
+-m __
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85 than 24,800 square feet as part of that calculation.69 The surface area is important because it determines the rate at which the gasoline evaporates and combines with air to form an explosive mixture. LBP-84-31, 20 NRC at 471.
Ant'hony/ FOE argue'that the overpressure calculations should have been based on the spray area used by their witness, Bevier Hasbrouck -- 10,000 square meters, or roughly 108,000 square feet. See Hasbrouck #1, fol. Tr. 5750, at 2.
The Board, however, correctly found "no scientific basis" for the surface area used by Hasbrouck. LBP-84-31, 20 NRC at 473. In fact, he agreed at the hearing that there was no basis for the area he assumed. Tr. 5995, 6004, 6100-01, 6115. On the other hand, the 24,800 square feet
- area, used by the staff in its calculations and accepted by
, the Board, is based in reality and properly conservative as ,
t well. The staff derived this figure by adding the area of the spill pathway on the hillside (assuming a pipe break at Possum Hollow Run) and the surface area of a pool at the bottom of the hill where the gasoline would collect. The pool width assumed for the calculation is especially conservative. See LBP-84-31, 20 NRC at 472; Ferrell, fol. t Tr. 7136, at 2; Tr. 7155-57.
i l
69 Gasoline was used for the ARCO calculations, as it j is the most volatile of the petroleum products transported !
, in that line. LBP-84-31, 20 NRC at 470. ;
i r
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86 Anthony / FOE argue, in this regard, that the Licensing Board misunderstood or rejected their scenario of a larger pool -- with a correspondingly larger surface and evaporative area -- created by the damming of Possum Hollow Run by a PECo road parallel to a railway embankment. The record, however, again shows no basis for the surface area assumed in such a scenario. Moreover, the staff's witnesses testified that, even if there were a legitimate basis for the dimensions Anthony / FOE give to this pool, it would not measurably affect their calculation of how much gasoline would be evaporated. Tr. 7531-34, 7536-45. The Board therefore correctly " assign [ed] no credence to the FOE postulates and resulting calculations." LBP-84-31, 20 NRC at 474.
As for the Columbia gas pipelines, Anthony / FOE first note that " diffusion" would be impeded during inversion O
conditions. Anthony / FOE Brief at 4. No one disputes 0
When leaving a broken pipe, the natural gas in the air will be too highly concentrated to burn or detonate.
Only after considerable dispersion to reduce its concentration will the gas-air mixture be in the flammable range. A slow " diffusion" rate (such as would result from an atmospheric inversion condition) thus would allow more time for the natural gas cloud to float toward the plant before its concentration decreases into the flammable range.
Further dispersion reduces the concentration below the flammable range and thereby eliminates the ability of the gas-air mixture to burn 'r detonate. See generally Walsh, fol. Tr. 5411, at 11-12.
_= -
4 87
]
l this. Hence, PECo's calculations assumed an inversion even though "[al tmospheric conditions actually are more conducive to dispersion 95% of the time." LBP-84-31, 20 NRC at 477.
See Walsh, fol. Tr. 5411, at 11-12.
Anthony / FOE next' complain that the Licensing Board did
~
not consider the " fire-hose effect" of a gas pipe break.
j The Board, however, did hear testimony on this scenario, but 3
{ relied on PECo's calculations, which assumed an even more conservative (i.e., worse) scenario than the fire-hose effect. PECo assumed a pipe rupture in which there is a j complete separation of the pipe and both pipe ends are i forced straight up and out of the ground. The gas is assumed to be released in a vertical jet and then to travel, with minimal dispersion, in a cloud as near as possible to
! the Limerick facility before deflagration. Any other orientation would cause more rapid mixing and dilution of the gas at a ground level source, resulting in detonation or deflagration farther from the plant. Id. at 10-12. See LBP-84-31, 20 NRC at 477. For example, in the fire-hose effect, the pipe ends are in a horizontal orientation at l ground level, directed toward the plant. More turbulence and thus dilution with air would occer on the ground, with
, greater likelihood of flammability nearer the break, rather than the plant. This scenario would therefore reduce the
! overpressure calculations, contrary to Anthony / FOE's implicit suggestion. Tr. 5422-24, 5473, 5476.
i i
88 Anthony / FOE argue that the Board erred in giving "no
, weight" to Hasbrouck's postulate of a flammable gas mixture that travels 5500 feet (more than a mile) to within 800 feet i of the facility and remains in a flammable concentration.
i See LBP-84-31, 20 NRC at 479. The Board pointed out, l ~however, that Hasbrouck had no technical basis for his testimony and that he himself had characterized his theory as " half-baked." Ibid. See Tr. 6008-09. Compare Campe,
]
fol. Tr. 6131,.at 3-4. Indeed, where a,n asserted expert j witness can supply no scientific basis for his statements
] (other than his " belief") and disparages his own testimony, i
! a board would be remiss in giving such testimony any weight whatsoever.71
- With respect to the actual overpressure calculations 1
for ruptures of the ARCO and Columbia pipelines, Anthony / FOE l object to the Licensing Board's reliance on the NRC staff's I
i i
71 Anthony / FOE voice an additional complaint, but l provide no supporting cites to the record. They claim that ;
the Licensing Board ignored their " scenario for an ignition ;
trigger from gas confined at plant level." Anthony / FOE i
Brief at 4. To the extent we understand this cryptic argument, it is without merit. If there is no legitimate basis for assuming a detonable cloud within 800 feet of the
, plant, there is no reason to consider an ignition trigger at
~; this point. We note, however, that PECo's analysis assumed an explosion at 1200 feet, " triggered by some undefined ,
3 high-energy ignition source." LBP-84-31, 20 NRC at 478. '
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l l 1 !
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4 i
. 89 calculations.72 Overpressure. calculations are ordinarily i derived by reference to the blast effects of TNT. Thus, the mass of gasoline or natural gas vapor released as a
- consequence of a pipeline rupture must be converted to an equivalent mass of TNT in order to determine the blast' i effects of detonation of the vapor. The staff based its overpressure calculations on a TNT conversion factor of 240 percent, cn a factor of 2.4. This conversion factor is found in NRC Regulatory Guide 1.91 (Rev. 1), " Evaluations of i
Explosions Postulated to Occur on Transportation Routes Near Nuclear Power Plants" (February 1978), at 1.91-2. Some of j -PECo's computations, however, used a conversion factor of 10, which the Licensing Board described as "4 times too great." LBP-84-31, 20 NRC at 473. Anthony / FOE assert that !
PECo's calculations discredited those based on Regulatory [
i Guide 1.91 (Rev. 1) , and that PECo's higher conversion i i
! factor must be used for a worst case analysis.
i i
- We disagree. Regulatory Guide 1.91 (Rev. 1) relies on j studies that generally show less than one percent of the !
i heat energy is released in a blast of hydrocarbon vapor. l The heat of combustion of hydrocarbons is about 10 times that of TNT, resulting in an equivalence on a mass basis of ;
i i
72 l The staff calculated a peak overpressure of 2.1 psi (pounds per square inch) for a rupture of the ARCO line and ;
7.4 psi for the Columbia line. Id. at 474,-480.
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90 10 percent (1% x 10 = 10%); i.e., the blast effect of one unit of hydrocarbon vapor is about ten percent of (or 0.1) that of an equal mass of TNT. But because actual blast energy is a function of accident-specific phenomena, Regulatory Guide 1.91 (Rev. 1) adds in a substantial (as much as 24-fold) conservatism: it sets a reasonable upper bound to the blast energy of a vapor cloud at 240 percent.
In other words, it assumes that the blast effect of one unit of hydrocarbon vapor is 240 percent of (or 2.4 times) that of an equal mass of TNT.
PECo's witness (Walsh) neither rejected nor discredited Regulatory Guide 1.91 (Rev. 1). He was well aware of the 2.4 conversion factor but nonetheless assumed that all of the gas-air mixture within explosive limits is detonated, releasing 100 percent of the available blast energy. (In contrast, with its built-in, approximately 24-fold conservatism, Regulatory Guide 1.91 (Rev. 1) assumes that about 24 percent of the available energy is released when the gas-air mixture is detonated. Thus, Walsh's conversion factor is about four times that of the staff's.) Walsh, however, gave no scientific basis for this assumption: he did it "[tlo be conservative." Tr. 5430-31, 5551-54.
Conservatisms and margins for error in such calculations are necessary and desirable, but must be footed to some extent in reasonable, scientific ground.
Conservatism upon conservatism can distort technical data to l
i
91 the point where it no longer meaningfully describes the mechanism at issue. This is especially true here, where Walsh provided no explanation for the 100 percent detonation hypothesis in his overpressure calculations. Moreover, Walsh's credentials as a meteorologist -- albeit pertinent to the formation and dispersion of hydrocarbon vapors in the atmosphere -- do not encompass expertise in calculating the explosive force and overpressures created by the detonation of such vapors., In this circumstance, there is no reason to give weight to Walsh's overpressure calculations.
Rejection of Walsh's overpressure calculations, however, does not automatically " validate" the Board's reliance on the staff's Regulatory Guide 1.91 (Rev. 1) calculations. Regulatory guides and the like to not prescribe regulatory requirements. In general, they are
" treated simply as evidence of legitimate means for complying with regulatory requirements, and the staff is required to demonstrate the validity.of its guidance if.it.
is called into question during the course of litigation."
TMI-1 Restart, ALAB-698, 16 NRC at 1299. Regulatory Guide 1.91 (Rev. 1) was admitted into' evidence, without objection, as Staff Exh. 7. Expert staff witnesses testified as to the bases for the 2.4 TNT conversion factor in this regulatory
92 guide. See Tr. 6150-55; Ferrell, fol. Tr. 6136, at 8.73 The Licensing Board therefore did not err in accepting the overpressure calculations determined by the staff using the TNT conversion factor found in Regulatory Guide 1.91 (Rev.
1).74 C. Structural Integrity The Licensing Board actively explored, on its own, "the ability of safety-related structures at the Limerick Generating Station to withstand the effects of postulated detonations resulting from the assumed rupture of the ARCO and Columbia Gas transmission pipelines." LBP-84-31, 20 NRC at 482. It concluded, on the basis of " conservative" calculations and analyses performed by PECo and the staff's review, that the safety-related structures are adequate to withstand both the direct overpressures from a pipeline explosion and the indirect effects of failure of nonsafety-related structures. Id. at 467. See id. at 483-93.
.l One such NRC witness, Dr. Kazimieras M. Campe, is responsible for the evaluation of industrial hazards like explosions and is therefore especially qualified to testify on this matter. See "Kazimieras M. Campe Professional Qualifications," fol. Tr. 6131.
Anthony / FOE argue that some witnesses actually calculated considerably higher overpressures (e.g. , 24 psi) during cross-examination. See, e.g., Tr. 7507. It is apparent from this testimony, however, that the witnesses (Footnote Continued)
93 Anthony / FOE challenge the Board's decision in this regard on numerous grounds, but fail to develop fully +' s argument on any particular point. See Anthony /Fra es i;f v:
- 5. Nonetheless, we briefly address those concil.h5 439; w.
are able to understand.75 Anthony / FOE question the validity of u'f dC'ilji ll element" use'd in the structural integrity analy=As for each safety-related structure. See LBP-84-31, 20 NRC at 485.
They contend that the " weakest points" in the walls and roof provide the only valid test for structural integrity.
Anthony / FOE Brief at 5. The critical element, however, is "that beam, column, wall, slab, or floor that because of its geometry and/or orientation bears a significantly larger stress than other like structu'ral elements." Kuo, fol. Tr.
9043, at 3. Here, the critical wall of each structure was first determined and then the critical element of that wall selected -- a one-foot wide beam with fixed ends, with no-(Footnote Continued) simply performed mathematical computations with input and assumptions provided by Anthony / FOE but did not signify agreement with those assumptions. See Tr. 7506-09.
75 In this portion of their brief, Anthony / FOE again.
object to any reliance by the Board on overpressure calculations determined in accordance with the TNT conversion factor of Regulatory Guide 1.91 (Rev. 1). We will not revisit that discussion. See pp. 88-92, supra. We note, however, that PECo recalculated blast overpressures from a rupture of the Columbia gas pipeline by this method and derived data similar to those of the staff. LBP-84-31, 20 NRC at 483-84.
9, _- - - - .
94 credit taken for the additional support provided by adjacent walls. Id. at 3-4. Thus, the " weakest" part of the structure, viewed as a function of stress, was used in the analyses.76 The structural adequacy of a critical element can be expressed in terms of the " ductility ratio." The pertinent building code allows a mid-span ductility ratio of 3.0 and an end-point ratio of 10. See LBP-84-31, 20 NRC at 485.
The highest such ratios calculated here were 2.2 (mid-span) and 2.9 (end-point) . Tr. 8947-48, 9069-70. Anthony / FOE complain that the margin for the mid-span ductility ratio is not adequate. They also make related arguments that the
" failure threshold" of a structure must be evaluated, and that the margins between the calculated overpressures and the design basis pressure for each structure are inadequate.
See Table II, LBP-84-31, 20 NPC at 496. But as the Licensing Board correctly explained, such code values are not intended to express the ultimate failure threshold of a structure; they include "some additional unquantified safety 76 Anthony / FOE also assert that the "as built" condition of the structures, rather than their design, should have been taken into account. Whether the Limerick facility has been built in accordance with its approved design, however, goes well beyond not only Anthony / FOE's contentions V-3a and V-3b, but also the Licensing Board's own expanded consideration of the effects of a pipeline explosion.
l 1
I 95 I margin." Id. at 486 (emphasis added) . Thus, a structure
" built to code" has an added margin of safety. Structures within the code values -- such as those here -- have still more margin and cannot be fairly characterized as inadequate.
Anthony / FOE assert that the Licensing Board erred in comparing the stresses on a structure caused by an earthquake, which operate through the ground, with those that would result from a pipeline explosion in the air.
Based on PECo's analysis, the Board found that the overturning moment and the story shear associated with the design basis " safe shutdown earthquake" for Limerick were larger than those associated with the postulated explosions.77 The Board thus concluded: "[s]ince the plant has been designed to withstand the safe shutdown earthquake loading values, there is more.than adequate structural capacity to resist the forces associated with the postulated explosions." Id. at 487.
The Board did not err in making this comparison.
Overturning moment and story shear are different types of
" forces" that can be exerted on a structure. See Kuo, fol.
77 The safe shutdown earthquake is based on site-specific characteristics and " produces the maximum vibratory ground motion for which certain structures, systems, and components are designed to remain functional."
10 C.F.R. Part 100, Appendix A, S III(c) .
I i
96 l
Tr. 9043, at 8-9.78 As a result, they can be expressed as numerical values. Once such a value is determined, the cause of the building response -- i.e., an earthquake in the ,
ground or a blast in the air -- is irrelevant. Either a i
structure can withstand that moment or shear, or it cannot.
Hence, comparison of values calculated from blast overpressures with those already accepted in connection with the seismic capability of the plant is not only valid, but useful. It simply provides yet another means of judging the structural integrity of the facility by reference to a known and accepted standard. ;
l Anthony / FOE also claim that the Licensing Board ignored I l
or did not adequately consider a variety of factors in connection with a pipeline explosion -- to wit, dead weight as an additive to blast pressure on the roofs, vibratory load, temperature differentials, hydrostatic forces, differential settlement, failure of louver and roof-openings, overturning of the cooling towers and transmission towers, and breach of the cooling tower basin. But intervenors' claim is seriously at odds with the Board's decision and the record. Each of these matters was fully considered by PECo and the staff, and the Licensing Board's 78 In engineering terminology, overturning moment and story shear are overall responses of a building to an external phenomenon.
97 decision contains extensive discussion on these subjects.
See LBP-84-31, 20 NRC at 487-92. Inasmuch as Anthony / FOE challenge virtually none of the Board's findings in this regard, we need not repeat them here.79 We add only that none of these factors was shown to present a threat to the integrity of any safety-related structure at Limerick.
Finally, Anthony / FOE contend that the issue of possible damage to the spray pond from missiles generated as a result of a pipeline explosion is unresolved. The evidence shows, however (and Anthony / FOE do not disagree) , that whatever missiles might be generated would not affect the spray pond 9
Anthony / FOE expressly object to one aspect of the Board's discussion cf a postulated failure of certain louver and roof openings in the reactor building. The Board noted that, even if the pressure from an explosion were not absorbed in some other way (as PECo's calculations showed it would be), a failed ventilation louver would allow the pressure inside the building to increase by no more than 0.016 psi and have a negligible effect. LBP-84-31, 20 NRC at 489. For a roof opening-panel failure, the reactor building pressure would increase only about 0.01 psi. Ibid.
Anthony / FOE argue that this obscures the real hazard, radioactive contamination of the outside air. While it is agreed that failure of the ventilation louver or roof opening will result in the reactor building being open to the outside air, a staff witness testified that ordinarily (and in this case) there would not.be any airborne contamination in the reactor building that could be released. Tr. 9111-12, 9128-29. In agreeing with Anthony's assertion that failure of the ventilation louver would leave the reactor building with an opening to the outdoors, PECo witness Boyer characterized this occurrence as "a maintenance problem." Tr. 8967. In fact, the roof opening is specifically designed as a blowout panel to relieve
, overpressure inside the building. Tr. 8959.
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?
98 building, fixtures, or pipes leading to the fixtures. The only matter still "open" at the time of the hearing was the effect of a tornado on safety-related spray nozzles and piping within the pond -- an issue not raised by any contention. PECo then had under way a probabilistic risk assessment of a tornado and its effects on this hardware, which the staff expected to evaluate. But the unrefuted ,
testimony of both PECo and staff witnesses was that a blast wave from an explosion exerts force downward and thus would not lift up and carry away missiles that could affect the spray nozzles, as a tornado might. Id. at 492-93. See Tr.
8900-01, 9367-68. Thus, nothing directly pertinent to Anthony / FOE's pipeline explosion scenario was or is O
" unresolved" by the Board's decision.
D. Other Issues Anthony / FOE contend that the extensive record developed in connection with their contentions V-3a and V-3b proves - -
that the ARCO and Columbia pipelines pose a risk to the Limerick plant. In their view, it was the Licensing Board's
" function . . . to establish that accidental releases from 80.PECo subsequently completed its tornado PRA. The staff evaluated it and concluded that, subject to certain improvements in procedures, the pertinent design criteria were satisfied with respect to protection against such natural phenomena and the missiles that they might generate.
See SSER-3 at 9-1 to 9-4; SSER-4 (May 1985) at 9-1 to 9-3.
. - _ . - . , - . . - - - - - - - - - . . . - ~ -
99 the pipelines could cause explosions which could impact the plant [,]" and " duty . . . to eliminate this risk."
Anthony / FOE Brief at 1.
A licensing board's function, however, is to oversee.
the parties' development of the record on contested issues and to issue an initial decision containing the board's r
findings of fact and conclusions of law on the matters in controversy. See 10 C.F.R. SS 2.718, 2.760, 2.760a.81 This does not mean that a board must stand mute during the hearing and ignore deficiencies in the testimony; it must, of course, "' . satisfy itself that the conclusions expressed by expert witnesses on significant safety or environmental questions have a solid foundation.'" South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1156 (1981), review declined, CLI-82-10, 15 NRC 1377 (1982). The Licensing Board more than fulfilled that obligation here, soliciting testimony on matters not even within the scope of.the admitted contentions. See pp. 79-80, 92, supra.
Anthony / FOE point out that, had it not'been for their pursuit of the issue, the potential-danger from the pipelines near Limerick would not have been analyzed as thoroughly. Anthony / FOE Brief at 1. That may well be true.
Intervenors can therefore feel gratified that their participation in this proceeding has contributed to a greater demonstration of the Limerick facility's ability to withstand the postulated pipeline explosions.
l
100 i
i A board is not obliged, however, to. eliminate all risk that may be revealed in connection with a facility.
" Reasonable assurance" that the plant will be operated safely and that public health, safety, and environmental concerns will be adequately protected is the standard by which a licensing board is to measure an application; a
" risk-free environment" is not required. Carstens v. NRC, 742 F.2d 1546, 1557 (D.C. Cir. 1984), cert. denied, __ U.S.
__, 86.L.Ed.2d 694 (1985).82 Again, the record and Licensing Board decision here amply demonstrate reasonable assurance that the public health and safety are protected from the risks of a pipeline explosion at Limerick.83 The Licensing Board's second partial initial decision, LBP-84-31, is affirmed, except insofar as it approves PECo's 82 The court went on to reject the notion that the Commission is required "to adopt wholesale the worst case scenario that a party may gloomily frame." Carstens, 742 F.2d at 1557.
83 In view of our decision upholding the Licensing Bot.rd's disposition of contentions V-3a and V-3b, we need not address the specific relief requested by Anthony / FOE --
relocation of the pipelines. See Anthony / FOE Brief at 1.
We note, however, that the NRC does not have regulatory jurisdiction over pipelines; the Federal Energy Regulatory Commission and the states regulate various aspects of these entities. The NRC, of course, must approve the location selected for a nuclear power plant. Alternative site issues, however, can be raised only at the construction permit stage and not in connection with an operating license. See 10 C.F.R. SS 51.106 (c) , (d).
101 onsite emergency plan medical arrangements. On that issue, we reverse and remand for further action consistent with this opinion.
I*,is so ORDERED.
FOR THE APPEAL BOARD E,b -31 ,, b_h-C. Q n Shoemaker Secretary to the Appeal Board
.