ML20140J087
| ML20140J087 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 03/27/1986 |
| From: | Barth C, Johari Moore, Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-638 OL, NUDOCS 8604040256 | |
| Download: ML20140J087 (80) | |
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- - UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% APR ~2 pj*^22 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ONEh?;5I 'y -
In the Matter of ) 9/j' , .
y CAROLINA POWER AND LIGHT )
COMPANY AND NORTH CAROLINA ) Docket No. 50-400 OL EASTERN MUNICIPAL POWER )
AGENCY )
)
(Shearon Harris Nuclear Power Plant, )
Unit 1) ).
NRC STAFF BRIEF IN REPLY TO THE APPEAL OF WELLS EDDLEMAN AND THE EMERGENCY PLANNIFG JOINT INTERVENORS FROM THE LICENSING BOARD'S PARTIAL INITIAL DECISION ON EMERGENCY PLANNING AND SAFETY CONTENTIONS 4
Charles A. Barth
& Janice E. Moore Marjorie U. Rothschild Councel for NRC Staff March 27,1986 0
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4 00CMETED UNITED STATES 'OF AMERICA MC NUCLEAR REGULATORY. COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING P bObb CFricE0; :3, i DOCKET ..
In the Matter of ) ,g
)
CAROLINA POWER AND LIGHT )
COMPANY AND NORTH CAROLINA ) Docket No. 50-400 OL EASTERN MUNICIPAL POWER )
AGENCY )
)
(Shearon Harris Nuclear Power Plant, )
Unit 1) )
NRC STAFF BRIEF IN. REPLY TO. TIIE APPEAL OF WELLS EDDLEMAN - AND TIIE EMERGENCY PLANNING JOINT INTERVENORS FROM Ti!E LICENSING BOARD'S PARTIAL INITIAL DECISION ON EMERGENCY PLANNING AND ' SAFETY CONTENTIONS Charles A. Barth
. Janice E. Moore Marjorie U. Rothschild Counsel for NRC Staff March 27,1986 i
Table of Contents PAGE(S)
TAB LE O F AU TIi OR IT IE S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I. . I n trod u c tio n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~. . . . . . . . . . . . .
1 II. S tatemen t of The Ca se . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Q u e s tion s P r e s en t e d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 IV. Argument................................................ 5 A. The Licensing Board Did Not Err In Its Decision In Favor of Applicants and The Staff on Certain liearing Is sues. . . . . . . . . . . . . . . . . . . 5
- 1. The Licensing Board Did Not Err In Resolving Eddleman Contention 41 In Favor of The Applicants and The Staff. .. . . 5
- 2. The Licensing Board Did Not Err In Resolving Eddleman Conteni!on 116 In Favor of The Applicants anel The Staff.. . . . 8
- 3. The Licensing Board Did Not Err In Resolving Joint Contention VII In Favor of The Applicante and The Staff. . . . . 21
- 4. The Licensing Board Did Not Err In Resolving Eddleman Contention 57-C-10 In Favor of The Applicants and The Staff....................................... 23 B. The Licensing Board Correctly Reconsidered And Dismissed Eddleman Contention 41 G, Harassment of Chan Van Vo. . . . . . . . . . . . . . . . . . . . . . . 28 C. The Licensing Board Did Nc,t Err In Granting Summary Disposition of Eddleman Contention 30.... 35 D. The Licensing Board Did Not Err In Rejecting Certain Emergency Planning Con te n tion s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
- 1. The Licensing Board Did Not Err In Its Form ulation of EPJ-1. . . . . . . . . . . . . . . . . . . . 40
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- 2. The Licensing Board Did Not Err In Rejecting CHANGE Contentions 4, 9, 2 0 a n d 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 C H ANG E Con tention 4. . . . . . . . . . . . . . . . 45 CH ANG E Contention 9. . . . . . . . . . . . . . . . 47 CH ANG E Contention 20. . . . . . . . . . . . . . . 48 CH ANG E Contention 21. . . . . . . . . . . . . . . 49
- 3. The Licensing Board Did Not Commit Error In its Rulings on CHANGE Conten-tion 33 And Eddleman Contention 57-C-7 Relating To the Adequacy of Medical Fa cilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
- 4. The Licensing Board Did. Not Err In Rejecting Wilson Contention 1. CIIANGE Contention 23 and Eddleman .Conten-tions 57-C and 57-C-2 Relating to The Configuration of the Emergency Plan nin g Zone (EP Z ) . . . . . . . . . . . . . . . . . . . . . . . 58
- 5. The Licensing Board Did Not Err In Rejecting EPX Contentions 4, D, 10 , a n d 1 1. .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
- 6. The Licensing Board Did Not Err In Rejecting Wilson Contentions 3, 4, and 5(b), (c), (d), and (e). . . . . . . . . . . . . . . 67
- 7. The Licensing Board Did Not Err In Rejecting Eddleman Contention 57-D-1, 2,and3................................... 68
. V. CONCLUSION............................................. 70
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TABLE OF AUTHORITIES PAGE(S)
COURT CASES GUARD v. NRC, 753 F.2d 1144 (D. C. Cir. 1985) . . . . . . . . . . . . . . 24,26,27,36,37, 52,53,54,55,56,57 Udall v . Tallma n , 3 8 0 U . S . 1 (19 6 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Union of Concerned Scientists v. NRC 735 F.2d 1437. (D.C. Cir.1984),
cert. denied , 105 S. Ct. 815 (1985) . . . . . . . . . . . . . . . . . . . . . 39,41,42,46,47, 61,63,64,65,66,68 United States v. Larionoff 4 31 U . S . 8 6 4 ( 19 7 7 ) . . . . . . . . . . . . . . . 27 NRC CASES Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant, Unit 1)
LB P-85-4 9, 2 2 NR C 8 99 (198 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim LBP-85-27 A , 22 NR C 207 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 27,36,38,41 L B P-84-2 9D , 2 0 NR C 3 8 0 ( 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 51 Order, ASLAB (October 31, 1985)........................ 3,39,40 Order, A SLB (January 7, 19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 57
- Order, ~ ASLB (December 23, 1985)......................... 56 Order, ASLB (December 9, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . 53 Order, ASLB (February 27, 1985)........................ 52
, Order, ASLB (June- 12, 1985)............................ 33, 34 Order, ASLB (June 14, 1984)............................ 35,61,69 Order, A SLB (December 6, 1984) . . . . . . . . . . . . . . . . . . . . . . . . . 35 Order, ASLB (January 14, 1985)......................... 30, 31
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PAGE(S) 1 Cincinnati Gas and Electric Company, (Wm. H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8 (1976).. . . . . . 34 Cleveland Electric Illuminating Company, (Perry Nuclear Power Plant, Units 1 and 2), ALAB-298, 2 N R C 7 3 0 ( 19 7 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Consolidated Edison Company of New York', Inc. (Indian Point Station, Unit No. 2), CL1-74-23, 7 AEC 947 (1974). . . .. . . 9,10,11 Consumers Power Company (Midland Plant Units I and 2),
AL A B-23 5, 8 AE C 6 4 5 (1974 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Duke Power Company (Catawba Nuclear Station, Units 1 and 2)' ALAB-687,16 NRC 460 (1982),
modified and affirmed CLI-83-19,17 NRC 1041 (1983).. . . . 30,65 AL A B-825, 22 NR C 7 85 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-6 69, 15 NR C 453 (1982) . . . . . . . . . . . . 3D Georgia Power Company (Vogtle. Electric Generating Plant, Units 1 and 2), Order, ASLB (August 12, 1985) u n p u blis h e d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station, Unit No.1), ALAB-424, 6 N R C 12 2 ( 19 7 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Long. Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-827, 23 NRC
( Ja n u a r y 9 , 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ALAB-832, NRC (March 26, 1986) . . . . . . . . . . . . . . . . . 61 AL AB-7 8 8, 2 0 N R C 1102 ( 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,18 LB P- 83-2 0, 17 NR C 5 80 ( 1983 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
. Order, ASLB , August 1, 1985 (unpublished). . . . . . . . . . . . . . 58 Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N R C 10 7 6 ( 19 P 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.11,28, 45,68 i
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Metropolitan Edison Company (Three Mile Island Nuclear Generating Station, Unit 1), ALAB-698, 16 N R C 12 9 0 ( 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A E C 4 2 3 ( 19 7 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39,41,42 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244 8 AEC 857 (1975), pet. reconsideration denied.
A LAB-2 5 2, 8 AEC 117 5 ( 1975 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 2 0 N R C 819 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Portland General Electric Company et al. (Pebble Springs Nuclear Plant, Units 1 and 2) CLI-7E-27, 4 N H C 610 ( 19 7 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 N R C 313 ( 19 7 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 AL AB-4 5 9, 7 NR C 17 9 ( 197 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 4
Public Service Electric and Gas Co., et al. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 N R C 7 6 9 ( 19 7 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Public Service Electric and Gas Co. et al. (Salem Nuclear Generating Station, Unit 1) ALAB-650, 14 N R C 4 3 ( 19 81 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,
. 17 N R C 5 2 8 ( 19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,55 Tennessee Valley Authority (Hartsville Nuclear Plant,
. Units 1A, 2A, IB and 2B), ALAB-367, 5 N R C 9 2 ( 19 7 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 c - - - c- - .- --r- -
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Washington Public Power Supply System (Hanford No. 2 Nuclear Power Plant)
ALA B-113, 6 AEC 251 ( 19 73) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Washington Public Power Supply System (WPPSS Nuclear Project No. 3) ALAB-747,18 NRC 1167 (1983).... 31,32,34 Regulations:
10 C . F . R . S 2 . 714 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 10 C . F . R . S 2 . 714 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 10 C . F . R S 2 . 7 4 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 10 C . F . R . S 2 . 7 51 a ( d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 10 C . F . R . 5 2 . 7 5 2 ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 10 C . F . R S 2 . 7 6 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,6,39 10 C . F . R . S 5 0. 4 7 ( b ) ( 12 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,27,37, 53,54,57, 10 C . F . R . S 5 0 . 4 7 ( c ) ( 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Miscellaneous:
50 Fed. Reg. 19323 (1985)..................................... 46 50 Fed. Reg. 20799 (1985)..................................... 57 50 Fed. Reg. 20892 (1985)..................................... 54,57 NUREG-0654, FEMA-REP-1/Rev.1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness
, in Support of Nuclear Power Plants" November, 1980..................................................... 24,26,27, 36,37,38,50
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UNITED STATES OF AMERICA '00LMETED NUCLEAR REGULATORY COMMISSION uswc BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD 50 M -Z P3 :22 In the Matter of ) a .
) 0FFICE 00CKEItN 0;J h e,1, CAROLINA POWER AND LIGIIT ) BRANCH COMPANY AND NORTH CAROLINA ) Docket No. 50-400 OL EASTERN MUNICIPAL POWER )
AGENCY )
)
(Shearon llarris Nuclear Power Plant, )-
Unit 1) )
NRC STAFF BRIEF IN REPLY TO TIIE APPEAL OF WELLS EDDLEMAN AND TIIE EMERGENCY PLANNING JOINT INTERVENORS FROM Tile LICENSING BOARD'S PARTIAL INITIAL DECISION ON EMERGENCY PLANNING AND SAFETY CONTENTIONS I. INTRODUCTION On December 23, 1985, Wells Eddleman and the Emergency Planning Joint Intervenors (Intervenors) filed a Notice of Appeal in the Operating License Proceeding indicating their intention to appeal the Atomic Safety and Licensing Board's (Licensing Board), Partial Initial Decision on Emergency Planning and Safety Contentions (PID) . dated December 11, 1985. b The appellate brief - of the Intervenors was filed on January 30, 1986, pursuant to the grant by the Appeal Board of Intervenors' request for an extension of time. Carolina Power & Light
-1/ Carolina Power a Light Company and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant ) ,
LBP-85-49, 22 NRC 899 (1985) .
-2/ " Appeal From Partial Initial Decision On Emergency Planning Contentions. " January 30, 1986.
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.- i Company and North Carolina Eastern Municipal Power Agency (Applicants) filed " Applicants' Brief In Reply To Intervenors' Appeal From the Partial Initial Decision on Emergency Planning and' Safety Contentions" on March 17,1986 [ hereinafter Applicants' Brief]. For the reasons set forth infra , the Licensing Board's Partial Initial Decision On Emergency Planning and Safety Contentions dated December 11, 1985 should be affirmed.
II. STATEMENT dF TIIE CASE On December 11, 1985, the Licensing Board designated to preside over the above-captioned proceeding issued its third partial initial decision in this Operating License proceeding. LBP-85-49, supra. This decision resolved the remaining safety issues and two of the three emer-gency planning contentions which were the subjects of evidentiary hearings. 3,/ In this decision the Licensing Board also memorialized its rulings on' the admissibility of contentions relating to the emergency planning exercise which was conducted at Shenron Harris on May 17-18, 1985.
On December 23, 1985, Intervenors filed a Notice of Appeal of the Decision . " Notice of Appeal by Wells Eddleman and by the Emergency Planning Joint Intervenors". This Notice of Appeal was followed on
-3/ It still remains for the Licensing Board to rule on one emergency planning contention and a drug use contention , which were - the subject of evidentiary hearings in November of 1985 and January of 1986.
. i January 30, 1986, by a brief setting forth the particular matters which Intervenors wished to appeal. 4I -
The detailed history of this proceeding has been set out by the Staff in its replies to Intervenors' appeals of 'the Licensing Board's previous decisions. The PID recites the chronological and procedural history of the issues that went to hearing. The Licensing Board's orders which are appealed here recite the chronology of the issues which are the subjects
-4/ The Notice of Appeal was submitted by Wells Eddleman and the Emergency Planning Joint Intervenors. Their appellate brief addresses contentions proffered by' CHANGE and Dr. Wilson and rejected by the Licensing Board. In the Staff's last appellate brief we took the position that an appellant could not appeal matters regarding rejected contentions proffered by other parties. "NRC Staff Brief in Reply to the Appeal of Joint Intervenors, Conservation Council of North Carolina , and Wells Eddleman from the Licensing Board's Partial Initial Decision on Safety Contentions" December 2, 1985 at 8-1. We affirm that position and add the following. In Northern States Power Company .(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 863 (1975), the Appeal Board's dicta suggests that an Intervenor could complain (appeal) to the Appeal Board of evidentiary rulings made in regard to contentions of other parties. Nothing in ALAB-244 suggests to 'the Staff that the Appeal Board meant to extend this so as to create a right to appeal denial or dismissal of contentions proffered by other parties. See also, Portland General Electric Company et al. (Pebble Springs Nuclear Plant, Units 1 and 2). CLI-76-27, 4 NRC 610, 617 n.9 (1976). In an excess of conservatism, this brief addresses alleged errors in the Licensing Board's disposition of contentions proffered by Joint Intervenors , CHANGE and Dr. Wilson, none of whom were parties to the Notice of Appeal.
In addition, as explained in more detail infra, the Staff considers certain portions of Intervenors' brief insufficient to meet the
, requirements of 10 C.F.R. 5 2.762 and the Appeal Board's Order of October 31, 1985, which sets out the standard to be used in replying to a brief filed by Intervenors. " Order" at 4. In its Order the Appeal Board stated that Applicants need reply only to those argu-ments raised by Intervenors which were reasonably identified and understandable. Id. The Appeal Board's Order is the law of the case and applicabfe to this Intervenors' D rief. The Appeal Board Order applies to the Staff as well as to the Applicants.
of its Orders. This brief supplements those chronologies where necessary.
Based on the record of the proceeding, on December 11, 1985, the Licensing Board issued its third Partial Initial Decision. The emergency planning and safety contentions ruled upon in that decision were resolved in favor of the Applicants and the Staff. The Licensing Board's PID and its rulings with respect to a number of contentions are being appealed by Intervenors. In reply to this appeal the Staff responds to those claims of error by the Intervenors which are reasonably discernible from their brief. For the reasons set forth below, the Licensing Board's decisions on the matters which are the subjects of Intervenors' appeal should be affirmed.
III. QUESTIONS PRESENTED Intervenors' appeal presents the following questions for resolution by the Appeal Board:
- 1. Whether the Licensing Board was correct in resolving emergency planning and safety issues based upon the hearing record in favor of the Staff and Applicants:
- 2. Whether the Licensing Board correctly dismissed Eddleman Contention 41(G);
. 3. Whether the Licensing Board correctly applied the standard of 10 C.F.R. I 2.'i49 in granting the motion for summary disposition of Eddleman Contention 30; and,
- 4. Whether the Licensing Board correctly applied the provisions of 10 C.F.R. 5 2.714 in rejecting certain contentions proffered by the Intervenors.
IV. ARGUMENT A. The Licensing Board Did Not Err In Its Decision in Favor ' of Applicants and the' Staff on Certain Hearing Issues IT its Partial Initial Decision , the Licensing Board decided five issues , based upon the hearing record, in favor of the Applicants and the Staff. These issues were: Eddleman Contention 41; Eddleman Contention 57-C-10 ; Emergency Planning Joint Intervenors EPJ-4 (b);
Eddleman Contention 116; and, Joint Intervenors Contention VII.
Intervenors have appealed portions of the Licensing Board's rulings with respect to each of these contentions except for EPJ-4(b).
- 1. The Licensing Board Did Not Err In- Resolving Eddleman Contention 41 In Favor of The Applicants and Staff Mr. Eddleman's contention as litigated at the hearing alleged that "there exists defective [ pipe] . hanger welds that have been improperly inspected and approved." The chronological and procedural history of Contention 41 fr; principally set forth in the PID, and is not repeated here. LD P-85 -49, supra, 22 NRC at 926-927. In' addition, the record below consists of 730 pages cf transcript cross-examination, hundreds of pages of direct testimony by the Applicants and Staff and over 12,000 pages of welding data produced by Applicants for Mr. Eddleman pursuant
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I to discovery requests (Tr. 6654). At the outset it must be emphasized
. . that despite this large amount of material, Mr. Eddleman has failed to identify one single defective pipe hanger weld with safety significance that was approved at the t!rne of hearing, the middle of November 1984.
Mr. Eddleman has failed to identify any defects in Applicants' QA/QC programs for inspection of safety-related pipe hanger welds, b Intervenors' appeal does not identify any defective pipe hanger weld with safety significance nor does he identify any defect in Applicants' present pipe hanger weld inspection program. Intervenor Eddleman does not identify any single error of fact or law by the Licensing Board in the hearing below or in its PID.
The Intervenors attempt to incorporate by reference their proposed findings on Contention 41 (Intervenors' Brief at 8). The Appeal Board has clearly held that they may not do so, - as such a procedure does not comply with 10 C.F.R. I 2.762. The Intervenors' proposed findings are not addressed here. Ilowever, the Licensing Board did address those proposed findings in the pm, 22 NRC at 929 and 930, and the Staff agrees with the analysis set forth therein. Intervenor Eddleman has, on appeal, done nothing more than urge upon the Appeal Board the argu-ments that he urged upon the Licensing Board below. The Appeal Board has observed that this is not appropriate for an appeal. II
-5/ "NRC Staff Interrogatories to Wells Eddlman, March 18, 1983." and
" Wells Eddleman's Response to NRC Staff Interrogatorien (First Round), May 6,1983." See Interrogatories 20 and 21.
!' -6/ Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station , Unit No.1), ALAB-424, 6 NRC 122 (1977); Public Service
. Electric and Gas Company, et' al. (Ilope Creek Generating Station, Units I and 2), ALAB-394, 5 NRC 769 (1977); and, Tennessee Valley Authority (Hartsville Nucicar Plant , Units IA, 2A, 1B and 2B),
ALAB-367, 5 NRC 92 (1977).
-7/ " Appellate review is not intended to offer losing parties a forum for simply renewing claims presented to, but rejected by the trial (FOOTNOTE CONTINUED ON NEXT PAGE) i l
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The Applicants' present program for pipe hanger weld inspection .is summarized by the Licensing Board at 22 NRC 927 and 928. h!r. Eddleman at hearing, and in this Appeal, has identified no significant defects in that inspection program. The NRC expert witnesses, Mr. Bemis and h!r. IIallstrom, testified that Applicants' present program was working (Tr. 7218-19, 7354-55) and there is nothing in the record below which impeaches or impugns this conclusion. See, LDP-85-49 supra, 22 NRC at 929, T 14.
There is one further matter. Intervenors' state ". . . a promise to comply is not enough." Intervenors' Brief at 8. In relation to the con-tention, to the evidentiary hearing, and to the PID, this intervenor state-ment is a non sequitur, i.e., it relates to none~ of them. The Licensing Board found that the present inspection program which was initiated in December,1983 and which is described in the PID (22 NRC at 928-928) is appropriate and that there are "No uncorrected errors that would affect safe plant operation ... iden tified in this proceeding" . LBP-85-49 supra, 22 NRC at 930. The Licensing Board's decision does not indicate reliance on "a promise to comply", rather it indicates the Board relied upon the Applicants' actions in establishing the enhanced program and the evidence that the program had been effective. 22 NRC at 929.
Based upon the foregoing , the Staff urges - that the Intervenors'
, appeal of Eddleman Contention 41 be denied and the Partial Initial Decision be affirmed.
(FOOTNOTE CONTINUED FROP PREVIOUS PAGE) tribunal. " Long ' Island Lighting Company (Shoreham Nuclear Power Station Unit 1), ALAB-827, 23 NRC , Slip. Op. at 3, (January 9, 1986).
- 2. The Licensing Board Did Not Err In Resolving Eddleman Contention 116 In Favor of The Applicants and The Staff Eddleman Contention 116, as litigated in this proceeding states as follows:
The fire hazard analysis of Section 9.5A (Appendix) in the FSAR does not address the availability of control and power to the safety equipment. In establishing fire resistance ratings of fire barriers with respect to fire in cable trays, Applicants have not established that qualification tests represent actual plant conditions or comparable conditions.
Another vague statement is that fire barriers are used 'where practical' without defining practical or stating the criteria to decide where a fire barrier is or is not practical (and what type of fire barrier should be used). FS A R 9.5.1.1.1. The ' Analysis' of Appendix 9.5A does not demonstrate as 9.5.1.1.1 claims it will, the adequacy of other fire protection measures in all cases. Rather, it estimates the BTU of combustible material, smoke. generation and removal rate from the area, gives usually a qualitative
' description of some measures to mitigate or reduce the fire effects, and assumes that the . fire will be promptly detected (usually no analysis of location of detection instruments etc.) and the fire brigade ~ will respond rapidly and put out the fire , or the automatic equipment will work. These assertions are made despite the time it takes to get people into the containment and to the fire (not well analyzed) .
Further , the ' analysis' of what happens if the fire spreads is g ?nerally a rationalization that it can't spread much, not an analysis. See og ' Analysis of effects of postulated fires.' The effect of a fire in a fire area or a fire zone with a combustible loading greater than 240,000 BTU /sq. ft . doesn't get dealt with in realistic terms . The plant fire fighting
. ' capability of simultaneous fires is inadequate, or at least unanalyzed.
LB P-85-4 9, supra, 22 NRC at 916. b Hearings were held on this Contention in October of 1984.
8/
As noted in the PID, the Licensing Board at the hearing dismissed the consideration of simultaneous fires. LBP-85-49, supra, 22 NRC at 916. Intervenor Eddleman does not appeal that ruling.
W l
In its Partial Initial Decision, the Licensing Board discussed each of the issues raised in the contention and resolved them in favor of the Applicants. LBP-85-49, supra, 22 NRC at 916-926. On Appeal Intervenor Eddleman does not challenge the Licensing Board's conclusions with respect to each of the issues. Rather, he appears to make a general claim of error that the Licensing Board erred in relying on promises and post-hearing resolution of issues. Intervenors' Brief at 7. Pir. Eddleman then attacks the Licensing Board's conclusions with respect to the Applicants' analysis of fire spreading. M. Finally, Intervenor Eddleman appeals the Licensing Board's disposition of certain of his proposed findings. _I d . at 7-8. All of the Intervenors' arguments are without merit and should be rejected.
Intervenors' major argument appears to be that the Licensing Board erred in accepting promises or future inspections and checking in the-area of fire protection. Interrenors' Brief at 7. Intervenor Eddleman relies on Commission and Appeal Board holdings in Indian Point and Waterford as support for his argument. Consolidated Edison Company of New York. Inc. (Indian Point Station, Unit No. 2), CLI-74-23, 7 AEC 947 (1974); Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076 (1983). IIe points out that the Commission in Indian Point noted that the " post-hearing approach" should
. be used sparingly and only in clear cases. Intervenors' Brief at ". Ile cites the Commission's example of minor procedural matters as the type of issue which could be left for post-hearing resolution. M. Ile argues that the Licensing Board did not abide by the Indian Point decision when it approved the post-hearing testing of " generic" fire barriers without
requiring data on actual test results. Id. This argument reflects either a misunderstanding or misstatement of the Licensing Board's ruling in this case and, indeed, of the scope of the subpart of Contention 116 which is in question here. In addition, the issue raised by the Licensing Board's Finding 14, 22 NRC at 919, which is the Finding Intervenor Eddleman claims violates the Indian Point Decision, is not the same as those issues which the Commission and the Appeal Beard have held are not proper for post-hearing resolution.
In Indian Point the Commission commented that , as a general -
proposition, issues should be dealt with during a hearing and not left for later, possibly more informal, resolution. Indian Point , supra, 7 AEC at 951. The Commission made this comment in connection with a case where a Licensing Board had left it to the Staff to make certain that a particular problem with the freezer drier would not occur again, and that adequate measures had been taken to prevent its recurrence. 'Id. at 950.
The Commission went on to recognize that there are unresolved matters of a nature which would not preclude a Licensing Board from making the findings necessary for the issuance of a license. Id. at 951. The Commission indicated that the post-hearing approach could not be used to obviate the basic findings required for the issuance of a license, including the finding of reasonable assurance that the facility could be
, operated safely. Id. at 951-952. The Licensing Board's rulings with respect to Eddleman Contention 116 did not leave any issue to post-hearing resolution, let alone one which would affect the findings prerequisite to the issuance of an operating license for the Shearon Ilarris facility.
The Indian Point Decision , as well as a number of other decisions which- have discussed the types of issues which must be resolved at
- hearin g , are discussed in Waterford. In that case the Appeal Board concluded that certain emergency planning issues, such as the installation and testing of sirens, could be left to the Staff. Waterford, supra, 17 NRC at 1105. In making this decision the Appeal Board pointed out that there was nothing in the record which would indicate that the system would not function as proposed. d. In Marble 11111, the Appeal Board affirmed a Licensing Board's Decision to withhold issuance of a Construction Permit until a loan agreement had been submitted to the Board. Public Service Company of Indiana (Marble 11111 Nuclear Genera-ting Station, Units 1 and 2), A L A B -461, 7 NRC 313, 318 (1978). In Perry, the Appeal Board overturned a Licensing Board's decision to approve the issuance of a Limited Work Authorization while leaving studies of certain geologie anomalies to the Staff. Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 and 2),
ALAD-298, 2 NRC 730, 73C-737. (1975). The basis for this decision was the Appeal Board's conclusion that Licensing Boards are unable to delegato their duty to make certain findings to the Staff, d. at 737.
Finally, in Hanford , the Appeal Board overturned a Licensing Board's decision to approve issuance of a Construction Permit while leaving it to
, the Staff to ensure that the construction permit did not issue except in compliance with the Federal Water Pollution Control Act. Washington Public Power Supply System (llanford No. 2 Nuclear Power Plant),
I
.AL A B-113, 6 AEC 251, 252 (1973). None of the situations described in i
L
9 the cases discussed above are present with respect to Eddleman Contention 116.
Intervenor Eddleman's concern about leaving a matter for post-hearing resolution centers on the Licensing Board's Finding 14, Intervenors' Brief at 7. He argues that the Licensing Board should have required actual test results instead of relying on tests of a " generic" fire barrier assembly to be tested at a later date. Id. This argument ignores the wording of the contention and the record of the proceeding.
In his contention Mr. Eddleman alleges that: "In establishing fire resistance ratings of fire barriers with respect to fire in cable trays, Applicants have. not established that qualification tests represent actual plant conditions or comparable conditions." This contention does not relate to any particular barrier or' t'o its construction. It clearly relates only to the methodology used by Applicants to establish fire resistance ratings for barriers with respect to fires in cable trays. Both Applicants and the Staff presented testimony on the qualification method to be used, and how that method in fact tested conditions which exceeded those expected to occur at a nuclear power plant. " Applicants Testimony of Margaretta A. Serbanescu In Response to Eddleman Contention 116 (Fire Protection)" ff. Tr. 4256 at 7-11 [ hereinafter Serbanescu]; "NRC Staff Testimony of Randall Eberly and Robert L. Ferguson Concerning Eddleman
. Contention 116", ff. Tr. 4626 at 9-10 [ hereinafter Eberly/Ferguson] .
The Licensing Board discussed this testimony in its Findings 11-15.
LBP-85-49, supra, 22 NRC at 918-919. As the Licensing Board noted, to determine the qualification conditions, an exposure fire is used which is based on an empirically derived standard time-temperature curve. d. at
919. The fire is a worst-case fire. It is not an average fire. The barriers tested using the standard time-temperature curve would resist fire from the maximum combustible ' loading in any area in the Shearon Harris power block, d. As the Staff pointed out during the hearing, this test methodology is a nationally recognized test method developed over sixty years ago. It is the primary means for qualifying wall and floor assemblies, and is referenced by all national building codes and the standards adopted by the National Fire Protection Association.
Eberly/Ferguson ff. Tr. 4626 at 9-10. The record shows that the Staff has determined through experience that the time-temperature curve is a conservative representation of the fire that could be expected in a nuclear power plant. Ferguson, Tr. 4657. Extensive information was provided by the Staff during cross-examination regarding how those tests are conducted. Eberly, Tr. 4723.
In its PID the Licensing Board noted that testing of a Generic fire barrier will be performed by an independent laboratory , and that the barriers to be installed will be installed in accordance with the recom-mendations of that laboratory to ensure that the barrier has the same configuration as the test assembly. LBP-85-49, supra , 22 NP.C at 919.
The Licensing Board's conclusion was that the test methodology to be employed by Applicants represents equivalent or more rigorous conditions than would be experienced under actual plant conditions. ,I d . There is nothing left for post-hearing resolution. The Licensing Board has determined that the methodology is adequate. The Licensing Board has not asked the Staff to take any further action or conduct any further studies on this matter. The Licensing Board did not find the existence
of any issue which it referred to the Staff for resolution. The Board read the contention, as framed by Intervenor Eddleman, and resolved it based upon the uncontradicted evidence of the Staff and Applicants.
As discussed above, the contention did not concern the installation of any particular fire barrier. It concerned a test methodology. It was made clear on the record that the barriers had not yet been installed.
That fact does not, in the circumstances before the Licensing Board, give rise to any unresolved issue. The record does not demonstrate any reason why the barriers should not be tested and installed in accordance with Applicants' commitment to the Staff and to the Licensing Board.
Intervenor Eddleman appears to believe that, in light of the Appeal Board's decision in Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB ~68, 20 NRC 1102 (1984), commitments can never be accepte'd by a Licensing Board. Intervenors' Brief at 7-8. U Shoreham does not stand for that general proposition. The Appeal Board pointed out that, in the circumstances of that case where, according to the Appeal Board, there was a history of violations in the area where .the commitments were being made, the Licensing Board should have kept the record open to await further actions. Id. at 1145-46. There is no record of violations by Applicants in the area of qualification of fire barriers, or in the area of meeting previous commitments. Intervenor Eddleman never
, attempted to show such a history. The Shoreham decision does not apply to the circumstances of the Harris proceeding.
-9/ Mr. Eddleman's citation- is to the Licensing Board's Decision which resulted from the Appeal Board's ruling on this matter.
To summarize, the Licensing Board's decision is amply supported by the record of this proceeding. Intervenor Eddleman does not challenge the Licensing Board's conclusion that the test methodology as. described by the Applicants and the Staff represents equivalent or more rigorous conditions than those which could be experienced at liarris. Therefore ,
he does not challenge the Licensing Board's resolution of the contention as worded. The Licensing Board's decision should, for the reasons set forth above, be affirmed as to the Licensing Board's treatment of the qualification of fire barriers with respect to fires in cable trays.
Intervenor's next claim of error appears to be that the Licensing Board erred in approving the Applicants' and Staff's positions regarding the analysis of fire spreading. Intervenors' Brief at 7. This argument ignores the ' record of the proceeding. Intervenor Eddleman claims ,
without citation, that no account is taken in the fire hazards analysis of what equipment is in adjacent areas. Id. As the Licensing Board noted, the Applicants testified that fire spreading is inherent in the calculation of combustible loadings for each fire area. LBP-85-49, supra, 22 NRC at 923. See, Serbanescu, Tr. 4521-4524. Intervenor Eddleman does not point to any portion of the record which would contradict Applicants' evidence.
Intervenor's characterivation of the Staff's position is somewhat
. incorrect. It is the Staff's view, as the Licensing Board noted, that if the Staff's guidelines concerning fire barriers , extinguishment and detection are met , then the prevention of fire spreading results.
Eberly/Ferguson ff. Tr. 4626 at 20. Intervenor did not present any evidence contradicting Applicants' or the Staff's position on this matter
nor did he elicit any such evidence on cross-examination. At the evidentiary hearing he did not raise the scenario of either a defective barrier or an open door. However, as the Board noted, even if the fire were to spread , Applicants would know its effect based on their fire hazards analysis. LBP-85-49, supra, 22 NRC at 923. Since Intervenor's argument is unsupported by the record, and the Licensing Board's conclusions are amply supported by the record of the proceeding, the Licensing Board's decision on the adequacy of the analysis of fire spreading should be affirmed.
Next, Intervenor raises the issue of the use of untested special purpose doors. Intervenors' Brief at 7. Intervenor Eddleman concedes, however, that there is an argument that testing of these doors is not required. Id. In its decision the Licensing Board discussed the reasons why these special purpose doors are not tested, and the reasons for the Staff's approval of the common approach taken by Applicants in not using tested doors for these special purpose doors. LBP-85-49, supra, 22 NRC at 920-921. As the record discloses, these doors are inherently fire resistant. The combustible loadings in the areas on either side of those doors are insufficient to cause a fire which would challenge the integrity of the doors. Id. Therefore , if Intervenor is appealing from the Licensing Board's ruling that there is not reasonable assurance .that the
. special purpose doors will prevent the spread of fire, that appeal should be rejected. The Licensing Board's conclusion is amply supported by the record and should be afGrmed.
Finally Intervenor complains of the rejection by the Licensing Board of a number of his proposed findings. Intervenor first clains that his
4 proposed finding concerning the effect of Applicants' omission of certain ,.
material from the FSAR on Applicants credibility should not have been rejected. Intervenors' Brief at 7. He claims that this omission reflects on Applicants' trustworthiness and the thoroughness of their analysis.
16.
As the Licensing Board noted in its decision , the material about which Intervenor complained in his proposed findings was placed into the hearing record. LBP-85-49, supra, 22 NRC at 925. The Licensing Board stated that the addition of this material did not alter any of its conclusions. _Id . There are no citations in Intervenor's brief to indicate where in the record it is demonstrated that these omissions reflected a willful attempt on the part of Applicants to withhold information from the Licensing Board. The fact is that the material he discusses in his proposed findings was before the Licensing Board when it considered Intervenor's contention. The unsupported insinuations concerning Applicants' trustworthiness are inappropriate and should be rejected.
The Licensing Board has considered all of the evidence before it in making its decision, and the rejection of Intervenor's proposed findings ,
concerning omissions from the FSAR was appropriate and should be affirmed.
~
Intervenor next complains of the Licensing Board's rejection of his i . proposed finding 23 as discussed in Licensing Board Finding 42, LBP-85-49, supra, 22 NRC at 925, Intervenors' Brief at 8. Proposed Findingr 23 claimed that the installation of fire seals must be verified by a NRC walkdown. The Licensing Board rejected this proposed finding on the ground that while the installation of the seals may be verified by a
~ -- --- r -
- 18'-
NRC walkdown, their installation would be subject to Applicants' quality assurance program. Since Mr. Eddleman did not identify any specific deficiencies with the seals or their proposed installation, the Licensing Board saw no reason to accept his proposed finding. LBP-85-49, supra ,
22 ' NRC at 925. Intervenor apparently bases his complaint on the Shoreham decision. As discussed above, there is no record basis for applying the narrow holding of that decision in this case. There is no demonstration on this record of circumstances warranting Staff verification of Applicants' activities in . this area. S Since the Licensing Board's decision is amply supported by the record before it, the decision to reject proposed finding 23 should be affirmed.
Intervenor also claims it was error for the Licensing Board to reject his proposed findings 24 and 25. These proposed findings concern Interrenor's view of why more analysis of fires in the diesel day tank area is required. S See, LBP-85-49, supra , 22 NRC at 925. The Licensing Board rejected these findings on the ground that the record does not support the consideration of the scenario set forth in proposed finding 24. Id. In fact, the record demonstrates that the Staff's analysis of the fire protection afforded in the diesel day tank area provides an
-10/ It should be noted that, as stated at the hearing, the Staff routinely conducts an audit in the area of fire protection when construction is
. almost complete. Eberly Tr. 4683-4G84.
M/ The proposed findings question the adequacy of the analysis approving an increase in the amount of oil in the diesel fuel day tanks from 1,000 to 3,000 gallons. " Wells Eddleman's Proposed Findings on Contentions 41 (Pipe liangers QA/QC), 116 (Fire Protection) and 9 (Environmental Qualification of Electrical Equipment) (With Conclusions and Order Included)" (January 8, 1985) at 11-12.
adequate basis for the approval of the deviation discussed in these proposed findings.
The combustible loading for the diesel fuel oil d'ay tt,nk enclosures was determined using. the total combustion of three thousand gallons of diesel fuel oil. Serbanescu ff. Tr. 4256 at 28. Applicants testified that the only realistic way to postulate combustion of that volume of oil in the day tank is through a rupture of the tank.
The day tanks are seismic category I components which are designed to remain functional' after the safe . shutdown earthquake. Id. at 29. The day tank enclosures also possess an automatic multi-cycle sprinkler system which would be actuated
< to cool oil below the ignition point. If the detectors actuating the system did not function, Applicants testified that the system could be actuated manually. There are also fusible link automatic. fire dampers which are provided to limit the amount of air available to support continued combustion. Id. The entrance to the room is located on a level above 110% of the capacity of the tanks. Serbanescu, Tr. 4530-4531. 11ased on the protection in the area, th'ere is adequate protection to contend with the larger amounts of diesel oil present in the day tank - enclosures.
! Eberly,. Tr. 4695. The Staff testified that the increase in the amount of oil to be conteined in the day tank enclosure would not represent a significant increase in hazard, due to the seismic qualification of the tank
. so as to preclude a catastrophic failure. Eberly, Tr. 4737. It was the Staff's opinion that the leak, if one were to occur, would be. a small one reaching the flammable range of diesel fuel well before a thousand gallons of oil was spilled . Eberly , Tr. 4738. The Staff was specifically i
questioned about the possibility of tauk rupture and concluded that it was 1
2
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O I unlikely. Eberly , Tr. 4738. Based on the considerations discussed above the Staff allowed the amount of oil in the day tanks to be increased from one thousand to three thousand gallons. It was also based on this record that the Licensing Board concluded that Intervenor's proposed Findings 24 and 25 should be ~ rejected. Since that rejection is amply supported by the record outlined above, the Licensing Board's decision on this matter should be affirmed.
Intervenor complains of the rejection of his proposed finding 26 as discussed in the Licensing Board's Finding 44 on the ground that it is about things yet to be done. This proposed finding alleges that the Applicants' quality assurance program which will check fire detection and suppression systems is suspect. The Licensing Board rejected this proposed finding as beyond the scope of the contention. LDP-85-49, supra, 22 NRC at 925. Intervenor does not challenge this Licensing Board's conclusion. It is clear from the wording of the contention that the Licensing Board's ruling is correct and should be affirmed.
Intervenor's claim that the Licensing Board improperly rejected his proposed findings 27 and 29 as discussed in Licensing Board Finding 45 is not comprehensible. Intervenors' Brief at 8. The Licensing Board rejected those proposed findings on the ground that the record did not a
support the apparent concern expressed in the proposed findings about
. the Staff's inspections and audits. The Licensing Board's rejection is correct. There was no attempt during the hearing , or elsewhere, to challenge the adequacy of the Staff's fire protection review. Since these proposed findings do not refer to any issue which the Licensing Board has found unresolved and referred to the Staff for resolution, Intervenor
Eddleman's cryptic reference to things not completed does not raise any applicable claim of error on the part of the Licensing Board.
Intervenor also challenges the Licensing Board's conclusion that the Applicants have met their burden of proof with regard to Eddleman Contention 116. Intervenors' Brief at 8. Ilis claim is only that the conclusion is unjustified. There . are no record citations to ' support this claim . It is clear from the record as described in the Licensing Board's decision that the conclusion is supported by the record. Therefore, the Licensing Board's decision concerning contention 116 should be affirmed.
For all of the reasons set forth above, all of- the Licensing Board's PID and all rulings with respect to the matters raised in Eddleman Contention 116 should be affirmed.
- 3. The -Licensing Board Did Not Err In Resolving Joint Contention VII In Favor Of The Applicants and The Staff The portion of Joint Contention VII which remained for litigation after the Licensing Board's ruling granting Applicants' motion for partial summary disposition of the contention, and after an agreement among the parties, states as follows:
Applicants have failed to demonstrate that the steam generators to be used in the flarris plant are ade-quately designed ind can be operated in a manner
. consistent with the public health and safety and ALARA exposure tp. maintenance personnel in light of (4) existing tube failure analyses.
LBP-85-49, supra , 22 NRC at 931. E Ilearings were held on this con-tention in October of 1984.
i.
-12/
Intervenors do not appeal any of the Licensing Board's rulings with respect to the motion for partial summary disposition.
l In its decision the Licensing Board discussed the testimony presented by Applicants and the Staff, as well .as the proposed findings filed by Intervenors. LB P-85-49, supra , 22 NRC at 931-935. The Licensing Board concluded that there is no need for an analysis of multiple tube ruptures to be present in the Applicants' FSAR, which Intervenors had alleged was necessary. Id. at 934. The Licensing Board based its decisfor. on the record before it.
'On - Appeal Intervenors argue that the Licensing Board did not adequately justify its decision not to require a multiple tube rupture analysis. Intervenors' Brief at 9. -There are no citations to the record or to the Licensing Doard decision or further elaboration to support this argument. The argument ignores the record upon which ' the Licensing Board based its decision, and thus should be rejected.
The Staff testified that the analysis already performed in the FSAR of a double-ended guillotine break of a single steam generator tube is,11 light of the conservatisms in the analysis, a bounding analysis. "NRC Staff Testimony of Ledyard D. f.larsh and !!crbert F. Conrad Regarding Joint Contention VII Part (4)," ff. Tr. 4176 at 2-3 [ hereinafter f.farsh / Conrad] . Intervenors did not challenge this Staff conclusion.
Applicants testified, and the Staff agreed, that the frequency of multiple
!~ tube failures would be exceedingly small. See, LBP-85-49 supra, 22. NRC l
at 932.
The Licensing Board discusses in detail the analysis performed by l
Applicants of the likelihood of a single tube failure and of mt:ltiple tube l
failures. LBP-85-49, supra , 22 NRC at 932-933. The Licensing Board l
also noted that this 111 dihood is decreased by the design and operational l
.. - =. _.
changes made at Harris which either mitigate or eliminate the causes of
_ previous tube failures included in the Apllicants' data base. Id. at 932.
The Applicants concluded that the likelihood of multiple tube failures would be approximately one in fourteen thousand plant years. d. at 933. The Licensing Board discussed the method Applicants used for analyzing the likelihood of multiple tube ruptures. The Licensing Board noted that Intervenors did not challenge this analytical method or the conclusions reached. Id. at 933.
4 Finally , the Licensing Board in discussing Intervenors' proposed findings stated that the calculations presented for the first time in those proposed findings result in an insignificant difference from Applicants' calculations and do not indicate any adverse trends. LBP-85-49 supra, 22 NRC at 933-934. The Licensing Board's discussion of the record, is thorough and covers the issues raised by Intervenors. It adequately justifies the Licensing Board's conclusions. The Licensing Board's decision is supported by the record before it and thus should be a ffirmed .
4
- 4. The Licensing Board Did Not Err In Resolving Eddleman Contention 57-C-10 In Favor Of The Applicants and The Staff Eddleman Contention 57-C-10, as originally admitted by the Board, stated in pertinent part that:
"The Staff Plan provides no useful analyses or ieformation on sheltering effectiveness ... . The Plan does not comply with Evacuation Criterion J .16 . m . of NUREG-0654, which calls for ' expected local orotection factors in residential units or other '
shelter for direct and inhalation exposure . .."
LDP-85-49, supra, 22 NRC at 902.
l i
l l
As the Licensing Board pointed out in its PID, it partially granted Applicants' motion for summary disposition of this contention, leaving .for litigation the protection factors for " typical ' institutional structures (schools, churches, etc.) commercial structures and industrial facilities in the plume EPZ." LBP-85-49, supra, 22 NRC at 902-903.
On appeal, Mr. Eddleman claims that the Licensing Board erred "in not requiring the protection factor data for structures typical of those in the EPZ (non-residential) as shown in Attachments 4, 5 and 7, S to go into the actual emergency plan." Intervenors' Brief at 6. According to Mr. Eddleman, - the evidence establishes that "the ranges have high ends that are definitely not typical." Id. In support of this conclusion, he cites " Finding 12 and related Proposed Findings".
I.d .
The basic issue presented on appeal is whether the plan must-include protection factors (PF's) typical of structures within the EPZ, as Mr. Eddleman asserts, or whether inclusion of low and high-range data on various categories' is sufficient. In support of his position that NUREG-0654, Criterion J.10.m. EI requires the former , Mr. Eddleman primarily relies. upon GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985).
13/ The Staff assumes that Mr. Eddleman is referring to Attachments 4, 5 and 7 of the pre-filed testimony of Applicants.
-14/ NUREG-0654, FEMA-REP-1/Rev.1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," November 1980.
(FOOTNOTE CONTINUED ON NEXT PAGE)
The . Licensing Board determined that except in minor respects it noted -is Mr. Eddleman's findings, the Applicants' evidence in support of their proposed findings was not impeached. LBP-85-49, supra, 22 NRC
- at 904. Therefore, the Licensing Board adopted the Applicants' Proposed Findings 46-53. Id.
The ' Licensing Board disagreed with Mr. Eddleman's assertion in his Proposed Finding 12 that the Applicants' summaries of protection factors, which were to be included in the emergency plan, " collapse data to the point that the ranges given are not typical of the actual structures within the EPZ." LBP-85-49, supra, 22 NRC at 906. In refuting this assertion, the Board stated: ,
It is true that these summaries are not designed to and do not necessarily convey protection factor information about ' typical' structures. They merely provide low- and high-range data on various cate-gories of buildings. See Attachment 8 to Mr. Martin's testimony. But that is all that is necessary for emergency planning purposes. Indeed, as discussed in. T 9 below, it probably would have been sufficient to determine that the non-residential structures in the EPZ generally have higher protection factors than residences.
Id., at 907.
The Licensing Board determined that Mr. Eddleman's Proposed Finding 17 (asserting that "there is no evidence that the PF's of structures in the EPZ do all fall. in [the] ranges listed in the Applicants'
. direct case") largely ignores the Applicants' uncontradicted case, l
(FOOTNOTE CONTINUED FRO 51 PREVIOUS PAGE)
Criterion J.10.m. provides (in relevant part) for the inclusion in the emergency plan of information on the " expected local protection afforded in residential units or other shelter for direct and inhalation exposure."
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including their fairly detailed description of how their survey was performed. (See Applicants' Proposed Findings 47-50, which ' the Bor.rd has adopted." LBP-85-49, supra,- 22 NRC at 907. According to the Board, it is " irrelevant and unlikely" the fact that there may be a few isolated buildings in the EPZ which fall outside the Applicants' ranges.
M. The Board concluded that:
- 11. With the inclusion in the State Emergency Plan of information on the protection factors of representative institutional, commercial and industrial structures in the EPZ, the plan will meet Evaluation Criterion J.10.m of NUREG-0654 and the Applicants will have met their burden with respect to Eddleman Contention 57-C-10.
M.,at908.
On appeal, Mr. Eddleman disputes that Criterion J.10.m. of NUREG-0654 will be satisfied by incorporating into the~ North Carolina State Emergency Plan the summary of the renge of protection factors (Attachment 8 to Applicant's testimony) and the inhalation PF (page 4 of Attachment 5) and a summary addressing the small commercial establish-ments, churches, hospitals and nursing homes.
GUARD v. NRC, upon which Mr. Eddleman's argument rests, does not establish error on the part of the Licensing Board. GUARD v. NRC, supra , concerned "the scope of the section 50.47(b)(12) phrase
' contaminated injured individuals . '" GUARD v. NRC, supra, at 1146.
. The issue there was an agency's interpretation of its own regulation, which the Court noted " generally warrants a high degree of respect."
1 Id. at 1148. b The Court rejected the NRC's generic interpretation of I 50.47(b)(12) with respect to members of the public exposed to dangerous levels of radiation, Id., at 1150, finding that "the N R C's interpretation conflicts with the plain meaning of I 50.47(b)(12) ...
Id. at 1148.
It is obvious that the fact the Court in GUARD invalidated the Commission's interpretation of 10 C.F.R. I 50.47(b)(12) does not mean that the Licensing Board's conclusion here as to what is sufficient to satisfy Criterion J.10.m. of .NUREG-0654 is erroneous. Mr. Eddleman's reasoning here is simply illogical. In fact , the principles to which the court alluded in GUARD, supra, support the opposite conclusion than Mr. Eddleman reaches -- namely, that the Licensing Board's interpretation j of NUREG-0654, J.10.m. is to be accorded a high degree of respect. -
4 Simply because Mr. Eddleman disagrees .with the conclusion reached by i the Licensing Board does not establish error on its part.
_15/ The courts have repeatedly indicated that an agency's interpretation of its own regulations should be upheld unless " plainly erroneous."
4 United States v. Larionoff, 431 U.S. 864, 872 (1977) and Udall v.
Tallman , 380 U.S. 1,10-17 (1965 ) .
1 16/ The Staff recognizes that a criterion of NUREG-0654 does not carry the weight of a regulation, but the same rule would apply with even-
, greater force to regulatory guidance such as NUREG-0654.
Mr. Eddleman completely ignores the Licensing Board's holding (in granting summary disposition of Eddleman Contention 30, another contention advocating greater detail in the emergency plan than is required) , that the aim of the criterion is more important than the letter, since an applicant's compliance with a criterion is not required if'it can be shown that there is another way that the criterion can be satisfied.- Carolina Power & Light Company, et al.
(Shenron liarris Nuclear Power Plant), LHP-85-27A, 22 NRC 20C 2T4 -
(FOOTNOTE CONTINUED ON NEXT PAGE)
Moreover, in considering Mr. Eddleman's claim of error, the Staff submits that licensing hearings were not intended to become bogged down in litigation about' such details. Waterford , ALAB-732, supra, 17 NRC at 1107, b ,
With respect to the citations to the transcript which Mr. Eddleman makes, it is the Staff's position that when read in contaxt, they do not undercut the findings of the Licensing Board, which are fully supported by the record. PID, at 906. Nor do they establich error on the part of the Licensing Board.
1or all these reasons, the Licensing Board's determination regarding Eddleman Contention 57-C-10 should be upheld.
B. The Licensing Board Correctly Reconsidered And Dismissed Eddleman Contention 41G, Harassment Of Chan Van Vo.
Intervenor Eddleman urges' that the Licensing Doard committed error in dismissing Contention 41G. The text of Mr. Eddleman's appellate I8/
arguments is set out at length in the footnote below. - At a press (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
(1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698. 16 NRC 1290,1298-99 (1982). See Section C. ,
, in fra.
17/ The Appeal Board there determined that the focus should be on whether an emergency plan satisfies the sixteen broadly drafted l standards of 10 C.F.R. I 50.47(b). M.
I 18/ " . . . The Licensing Board dismissed Contention 41-G because the intervenor could not guarartee that witness Chan Van Vo would appear at the hearing. It was never stated that Van Vo would not appear, nor did the - Board seek to compel his attendance, or testimony. In admitting Contention 41-G, the Licensing Board did not refer to Van Vo's availability as a witness in determining the (FOOTNOTE CONTINUED ON NEXT PAGE)
L_.
conference held on Monday, October 22, 1984 Mr. Chan Van Vo and his attorney, later also attorney for Intervenor Eddleman, released to the public an Affidavit of Mr. Chan Van Vo dated October 6, 1984. That Affidavit alleged several adverse situations arising from the construction of the Harris facility. On October 23, 1984, at the resumption of the evidentiary hearings in this proceeding Intervenor Eddleman distributed Mr. Van Vo's Affidavit to all present.
On October 24, 1984, the Licensing Board permitted the parties briefly to address the Van Vo affidavit. Mr. Eddleman there stated:
"he got harassed and ultimately fired so I think that I- would like to put him in as a witness on 41. As I say, his counsel has indicated he woulqgpe willing to appear sometime in November." [1984). -
The Licensing Board gave the parties an overnight opportunity to review the Van Vo Affidavit in order to develop more carefully considered positions. The following day, Mr. Eddleman distributed newly-profferred (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) admissibility of the contention or weighing the 5 factors of '10 CFR
. 2.714(a)(1) concerning it, even though his availability had been argued to the Board in October 1984. The Board's dismissal of the
! contention was arbitrary and capricious in making decisive a factor j . not even noted in the decision admitting (part of) Contention 41-G, and improper in that the Board took no steps to compel witness Van Vo's testimony, and in error'since two other persons had complained of harassment in responee to the Board's written notice, but their allegations had not been evaluated completely at the time the Board dismissed 41-0. The Board did not give reasonable detail of its basis, violating ALAB-422. 6 NRC 33." Intervenors' Brief at 2.
19/ Tr. 5316 and 17.
I L
contentions b and was invited to address the five factors of 10 CFR I 2.714 which govern late-filed contentions.
Mr. Eddleman agreed with the Chairman's statement that the proffered contentions , including 41G, were late filed contentions, Tr. 5731, and addressed the late-filed contention five factors as refined by the Appeal Board and Commission in the Catawba b p roceeding whose standards had often been discussed in the liarris proceeding. The salient parts of Mr. Eddleman's statement which appertain to his appeal of 41G are set out infra:
"Mr. Van Vo is available- and he is available reasonably promptly . . as I understand it Mr. Van Vo would be available the week of Tuesday, November the 13th, and I would be prepared to put him on as a witness on these things. ... Tr. 5738. [ Chairman Kelly] "But are you saying that what you want to do under these contentions is bring in Mr. Van Vo and hear his story . ... [Mr. Eddleman] Yes, 'I understand and I think that depends on Mr. Van Vo and the schedule a good bit. In other words, if the schedule would only accommodate just hearing Mr. Van Vo on these issues, then I think he is worth hearing on them because he has direct experience.
Tr. 5739. Now, the third factor is the one that I -
well, the availability of the witness I think is clear but let me mention that Mr. Van Vo, according to his
-20/ Contention 41G as admitted by the Licensing Board and in the form appealed by Mr. Eddleman states:
Chan Van Vo was placed on probation and later terminated from his job with CP&L because he had sought to raise nuclear safety concerns about flarris facility, as he alleges, and not because of poor job performance, as CP&L alleges.
" Memorandum and Order (Ruling on Certain Safety Contentions and Other Matters)" Jan. 14,1985 at 3, (January 14, 1985).
21/ Duke Power Company et al. (Catawba Nuclear Station , Units 1 and
~~
2), ALAB-687, 16 NRC 460 (1982) and CLI-83-10, 17 NRC 1041 (1983).
counsel is willing to appear. . . . He is available and has direct knowledge of these matters as stated in his affidavit, so I think as to having a witness we are O.K. Tr. 5742. [In relation to developing a mound record} Since he [ Van' Vol would be my witness, it doesn't depend much on my ability to cross. it just depends on my ability to put him on.
Tr. 5743. And my participation then would be basically just to get him in here and make him available to bring out his information . . . .
Tr. 5744.
The Licensing Board offered the Staff and Applicants the oppor-tunity to respond. Both responded in opposition to admitting the proffered contentions.
With this background before it, the Licensing Board admitted the modified Contention 41G which is the subject of this appeal. SI The Licensing Board found that factor 3, contribution to the record, weighed against admission of 41G. S The Licensing Board's Order did not discuss the Appeal Board's admonition ' regarding the importance of the third factor, that the proponent of the contention should identify the issues to be covered and identify its prospective witnesses and summarize their proposed testimony. E# As discussed above, Mr. Eddleman acknowledges that his Contention 41G la premised upon Van Vo's testimony and has committed to having him as a witness and the affidavit will be the testimony. See Tr. 5738-5744.
g/ Order, January 14, 1985 supra at 5.
2_33 / Order, January 14, 1985 supra at 3, 24/ Washington Public Power Supply Systems, et al. '(WPPSS
~~
Nuclear Project No. 3), ALAH-747,18 MRC 1167,1177, (1983).
e .
During a telephone conference call on May 29, 1985 among the Licensing Board and parties, including counsel for Intervenor Eddleman, as well as Mr. Eddleman, to discuss schedule, . all parties agre,ed to commence the evidentiary hearing on 41G, Van Vo harassment , on June 24, 1985. Tr. 7677. At that time Interverior Eddleman's counsel indicated that Mr. Van Vo's availability was uncertain. Tr. 7680. The Chairman directed Intervenor's counsel to inform him by June 3, 1985 whether Mr. Van Vo would be available as a witness on June 24, 1985.
The Licensing Board scheduled another telephone conference call for June 6, 1985. Mr. Guild and Mr. Eddleman were parties to that conference call as well as the Staff and the Applicants. Chairman Kelley stated that Intervenor's counsel had called him on June 3,1985 and could not commit that Mr. Van Vo would be available as a witness on June 24, 1985. Tr. 7730, 7739. The Licensing Boaru then reconsidered the application of the five factors to Contention 41G. The Chairman recited some of Mr. Eddleman's prior commitments to produce Mr. Van Vo as a witness. Tr. 7734-35. Chairman Kelley referred to and discussed the WPPSS ALAB-747 cited supra in regard to the third factor which relates to contributing to the record and the need for an intervenor to identify its witness and summarize its testimony. The Chairman gave all concerned parties a full opportunity to express their views. The
. Chairman stated that if Contention 410 were heard, the Licensing Board had . questions to ask of Mr. Van Vo. Tr. 7746. The Licensing Board then announced that it had reconsidered the balancing of the five ' factors and, since Mr. Van Vo would not be a witness, it dismissed Conten-tion 410. Tr. 7756.
O
- The Licensing Board followed the telephone conference call with a written " Order (Dismissing Contention Concerning A!!cged liarassment of Former Employee and Rejecting Emergency Planning Contention)" dated June 12, 1985 [ June 12 Order]. The June 12 Order set forth the background and the Licensing Board consideration of Contention 41G relating to harassment of Mr. Van Vo.
Intervenor's counsel during the telephone conference call of June 6, 1985, suggested that the Licensing Board could not on its own reconsider its prior analysis of the late-filed contention factors of 10 CFR I 2.714.
Tr. 7739. The Intervenors' Brief argues that the Licensing Board could not reconsider its admission of Contention 410 and dismiss the contention.
Intervenors' Brief at 2. Neither Intervenor's counsel nor Mr. Eddleman cited any authority in support of their assertion. Such argument by Intervenor and his attorney are incorrect. In Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LDP-83-20, 17 NRC 580, 584 (1983) the Licensing Board stated "The Appeal Board has held that, just like the cou rts , licensing boards possess certain inherent power, e.g., the power to reconsider a decision" citing Consumers Power Company (Midland Plant, Units I and 2) ALAH-235, 8 AEC 645, 647 (1974) where the Appeal Board held that a licensing board could, indeed , reconsider a decision. As the !!arris Licensing Hoard
, stated on page 6 of its June 12 Order "An argument that a mistake, once discovered, must be perpetuated has little to commend it." The Staff finds no merit in the separate arguments of Mr. Eddleman and his counsel.
The reconsideration by the Licensing Board of its Order admitting Eddleman Contention 41G into this proceeding and its subsequent dismissal of the contention upon learning that its subject, P1r. Van Vo, would not be a witness, was correct under the Commission's rules and regulations and. should be sustained.
Without Mr. Van Vo there would be no witness and no testimony as required by the Appeal Board in WPPSS ALAB-747, supra. The affidavit is hearsay without Mr. Van Vo as its sponsor. Mr. Eddleman correctly recognized this when he stated that the contention depended upon Mr. Van Vo as a witness. Tr. 5743.
The Licensing Board fully articulated its reasoning in detail during the telephone conference calls of May 29 and June 6, 1985 and in its June 12 Order which confirmed dismissal of Contention 41G. The Licensing Board has fully complied with the requirement that it disclose the grounds and reasons upon which its action is predicated. See, Cincinnati Gas and Electric Company (Wm. II. Zimmer Nuclear Power Station) ALAB-305, 3 NP.C 8,11, (1976).
The Intervenor's suggestion that the Licensing Board should have taken steps to compel Mr. Van Vo's attendance as a witness lacks merit, as it also lacks citation to authority for such a proposition. The Licensing Board declined to call Mr. Van Vo because its reading of the
, affidavit and the Deposition of Chan Van Vo taken February 26, 1985 provided no substantial basis to do so. This decialon was, and is, correct. In addition, under the NRC rules, it is not the function of a licenalng board to act as the intervenor's advocate and prepare his case.
If Mr. Eddleman wanted Mr. Van Vo as a witness he could have requested
i that the licensing Board issue a subpoena for Mr. Van Vo. Mr. Eddleman chose not to do so. He also chose not to move the Board to compel Mr. Van Vo's attendance as a Licensing Board witness. Now is not the time for Mr. Eddleman to question the propriety of his own actions. The Licensing Board's principal ' function is to resolve issues in controversy based upon the evidentiary record - not to be a proponent for any party.
For all of the reasons set forth above, the Licensing Board's decision dismissing Eddleman Contention 41G from this proceeding was proper and should be sustained.
C. The Licensing Board Did Not Err In Granting Summa'ry Disposition of Eddleman Contention 30 2,5 /
As stipulated by tho parties and approved by the Board, Contention 30 reads as follows:
"The plan's provisions (Part 1 pp. 49-50) for Potassium lodide do not comply with the requirements of NUREG-0654 II.J.10 e (pg. 63) that the plans must include ' quantities' for persons whose ' evacuation may be infeasible or very difficult' who are in the plune EPZ."
App!! cants filed a motion for summary disposition of this contention which was supported by Staff. EI The Board granted Applicants'
--25/ "Further Rulings on Admissibility of Offsite Emergency Planning Contentions Submitted by Intervenor Eddleman," June 14, 1984, at 10-22 [ hereinafter Further Rulings on Admissibility]; " Order
/.pproving Joint Stipulation Codifying Certain Admitted Contentions,"
December 6,1984,
-26/ " Applic.mt s' Motion for Summary Disposition of Eddleman Conten-tion 30," January 14, 1985; "NRC Staff / FEMA Response in Support of Applicants' Motion For Summary Disposition of Eddlenen
, Contention 30," February 27, 1985; " Wells Eddleman's Response To Summary Disposition on Contentions 57-C-10, 30, 213-a and 215,"
March 11,1985.
motion. LBP-85-27A, supra, 22 NRC 207, 223-224. The Licensing Board determined, in granting summary disposition of this contention, that inasmuch as the quantities of potassium iodide needed in an emergency had been determined, the intent of. criterion II.J.10.e. (to assure that quantities are determined during, not - after , the ~ planning process) had been satisfied. E Id. at 223-224. The Board rejected as untimely and lacking in basis Mr. Eddleman's proposal (in opposing summary disposition of Contention 30) of a new contention to litigate the adequacy of the quantity the State determined would be needed in an emergency. Id. at 224.
On appeal, Mr. Eddleman asserts that the Licensing Board erred in its ruling allowing information required to be in the plan not to be in the plan. E Intervenors' Brief at G. According to Mr. Eddleman, FEMA's interpretation of Criterion II.J.10.e of NUREG-0654 with which the Licensing Board agrees is in error and inconsistent with GUARD v.
NRC, supra, 27/ Criterion II . J .10. c of NUREG-0654, requires that the ERP shall include:
dProvisions for the use of radioprotective drugs, partic-ularly for emergency workers and institutionalized persons within the plume exposure EPZ whose immediate evacuation may be infeasible or very difficult, including quantitles, storage, and means of distribution." (Emphasis added.)
-28/ Mr. Eddleman's claim of error relates to summary disposition of both Contentions 2 and 30. Inasmuch as Contention 2 was never admitted for adjudication, it was therefore not the subject of a summary disposition motion. Further Rulings on Admissibility , supra , at 8-10.
l
The Staff submits that the Licensing Board applied the proper standards in determining that there is no genuine issue of material fact with respect to Eddleman Contention 30 and that summary disposition should be granted of that contention. The Board properly found that the plan's provision for determining the required quantities of potassium iodide _is sufficient and that the specific quantity of potassium iodide for emergency workers and for institutionalized persons need not be set forth in the plan.
The only support Mr. Eddleman garners for his claim that the Licensing Board erred in its determination is GUARD v. NRC, supra.
Mr. Eddleman does not state in what way the GUARD decision supports his position. As the Staff has previously stated, the fact that in GUARD the Court invalidated the Commission's interpretation of 10 C.F.R.
I 50.47(b)(12) does not mean that the interpretation here of Criterion II.J.10 e of NUREG-0654 is in error. Thus, in the Staff's view, there is no support in GUARD for Mr. Eddleman's position . Conecrning Mr. Eddleman's disagreement with FEM A's interpretation of Criterion II.J.10.e it is clear that inasmuch as that criterion was established by FEMA, FEMA's interpretation of this criterion is entitled to substantial weight. The courts have repeatedly indicated that an agency's interpretation of its own regulations should be upheld unless " plainly
1 erroneous." See note 15, supra.99/ L Moreover, Mr. Eddleman completely Ignores the Licensing Board's holding here that:
When dealing with an evaluation criterion, the aim of the criterion is more important than the letter, since an applicant's compliance with a criterion is not
. required if the applicant can show that there is another way to satisfy the aim.of the criterion.
LBP-85-27A, supra. 22 NRC at 224.
In sum, the Staff submits that the Licensing Board correctly found that inasmuch as the State had determined the quantities of potassium
'i odide needed in an emergency, the intent of Criterion II.J.10.e. has been satisfied. Accordingly, the Board's grant of summary disposition of Eddleman Contention 30 should be upheld. 3,0/
29/ As the Staff has previously stated, it recognizes that a criterion of NUREG-0654 does not carry the weight of a regulation, but the same rule would apply with even greater force to regulatory guidance such as NUREG-0654.
30/ Mr. Eddleman attempts to appeal the remaining summary disposition rulings apparently on the same ground as he appeals the ruling on lie incorporates Contention 30. by reference Applicants' Findings 3-5. Therein Applicants set forth the history of the admitted emergency planning contentions , and listed the more than twenty contentions on which summary disposition had been granted. The Staff does not assume the task here, which properly belongs to Mr. Eddleman, of reviewing those rulings on summary disposition to identify those to which his claims of error here might apply.
D. The Licensing Board Did Not Err in Rejecting Certain Emergency Planning Contentions At the outset, the Staff notes that Mr. Eddleman's attempt to appeal all of his- rcJected contentions must fail. EI See, 10 C.F.R.
$ 2.762(d)(1); E Appeal Board Order of October 31, 1985, supra. In the Staff's view, Mr. Eddleman's assertion here that all of the rejections of his emergency planning contentions are inconsistent with Grand Gulf,
( ALAB-130) and UCS v. NRC S does not satisfy the requirements discussed by the Appeal Doard in its Order, supra. He has disregarded the provisions of 10 C.F.R. $ 2.762(d)(1) and the very specific guidance the Appeal Board har provided as to what is necessary to comply with that provision of the regulations. Mr. Eddleman's blanket assertion here is akin to the kind of statement (in the Intervenors' appeal brief on safety contentions) that a rejection of contentions is capricioun, which the Appeal Board held to be " patently insufficient." _ Order. at 3.
Mere citation of Grand Gulf. ALAD-130, and UCS v. NRC, does not g/ Intervenora Brief, at 2-3.
32/ This provision cf the regulations requires that a brief clearly
, identify the errors of fact or law that are the subject of the appeal and specify the precise portion of the record relied on in support of the assertion of error. Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAH-650, 14 NRC 43 (10RI).
Claims of error that are without substance or are inadequately briefed will not be considered on appeal. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAH-669,15 NRC 453, 481 (1982), citing, Salem, supra,14 NRC at 49-50.
M/ Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAH-130, 6 AEC 423 (1973); Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 105 S. Ct. 815 (1985).
(_ .
l elevate Mr. Eddleman's assertions here to a level requiring discussion on j
the merits, b
- 1. The Licensing Board Did Not Err In its Formulation of EPJ-1 As formulated by the Licensing Board, Emergency Planning Joint (EPJ) Contention-1 states as follows:
. Insufficient consideration has been given in the off-site emergency plans to the effects of severe snow and ice conditions on evacuation times and/or capa-bilities to clear evacuation routes.
Section IV.E.8 of the State Plan (at 50) is deficient i because the State does not have enough snow plows
- in this area to effectively clear thegads of snow or l ice in a reasonable amount of time. -
EPJ-1 is derived from several proposed contentions alleging inadequacies in the evacuation time estimates and/or the emergency plan I
because of failure to account for the effects of weather conditions such as l
I snow, ice, and/or fog. LBP-84-29B. supra, 20 NRC 389, 422. The j Applicants and Staff opposed the admission of these contentions, primarily on the grounds that the contentions lacked specificity and/or basis and L
i i
34/ Consistent with the Appeal Board's guidance, the Staff is however, responding to the merits of Mr. Eddleman's claims of error that are
, at Icast minimally identified and understandable. _ Order, su pra, at 3.
Likewise, the Staff does discuss ALAH-130 and UCS v.7 R"O later.
l inasmuch as ?!r. Eddleman cites them in support of his arguably l more specific assertions of error regarding the Licensing Board's rejection of enumerated contentions.
i l 35/ Carolina Power and Light Company and North Carolina Eastern Municipal Power Agency (Sheuron liarris Nuclear Power Plant ) ,
LDP-84-29B, 20 NRC 389, 422 (1984).
impermissibly challenged either the Commission's regulations or the evacuation time estimates. E Mr. Eddleman argues on appeal that the Licensing Board violated the requirements of UCS v. NRC, and Grand Gulf, ALAB-130, by specifying only " severe snow and lec conditions" in its wording of EPJ-1.
Intervenors' Brief, at 3. 3_?,/ According to Mr. Eddleman, the Licensing Board's limitation of the contention to severe snow and ice improperly denied a hearing on a specific and important matter and disregarded statements which would have provided basis for a broader contention. E At the outset, the Staff notes that it is not clear that UCS v. NRC, is at all applicable to the issue presented here. The UCS decision invalidated the Commission's rule providing that licensing boards need not consider the results of emergency preparedness exercises in licensing 36/ "NRC Staff Response To Emergency Planning Contentions of Inter-venors Phyllis Lotchin, Cil A NGE , CCNC and Wells Eddleman ,"
April 23, 1984 at 12, 24, 29 [ hereinafter "NRC Staff Response 1"];
"NRC Staff Response To Emergency Planning Contentions of Intervenors Richard Wilson and Wells Eddleman", April 27, 1984 at 20-21 [ hereinafter "NRC Staff Response !!"]; " Applicants' Answer to CilANGE Proposed Contentions on SliNPP Off-Site Emergency Response Plan", April 23, 1984 at 11-13, 54-55 [ hereinafter
" Applicants' Answer To CilANGE"); " Applicants' Response To CCNC Cententions Arising From Review of Emergency Response Pla n , "
April 23, 1984 at 8-9 thereinafter " Applicants' Response To CCNC Contentions"); " Applicants' Response To Contentions of Richard Wilson Concerning North Carolina Emergency Response Plans ,"
April 27, 1984, at 20, 21-23 [ hereinafter " Applicants' Response To
, Wilson") .
37/ The Staff notes that the Licensing Board granted summary disposition of EPJ-1. LDP-85-27A, au?ra, 22 NRC 207, 225 (1985).
Intervenors have not appealed that dec ston.
38/ Ilowever, Mr. Eddleman appears to provide support for the actual wording of EPJ-1, by arguing that serious nuclear accidents are more likely in severe weather conditions. Id.
hearings before authorizing full power operation of a nuclear power plant.
The Court noted that the Commission had by its own regulations made correction of deficiencies identified in emergency exercises a require-ment of its ultimate licensing decision. UCS v. NRC, supra, at 1443.
The court held that since the rule denied the right to a hearing on a material factor tc be relied upon by the Commission in making licensing
~
decisions , the rule was issued in excess of the Commission's authority.
Nothing presented by Mr. Fddleman provides support for the assertion that in its formulation of the snow and ice contentions into a single contention concerning severe snow and ice, the Licensing Board ran afoul of UCS. That decision certainly does not stand for the proposition Mr. Eddleman suggests, (i.e. , that every emergency planning contention proposed for litigation in a licensing proceeding presents an issue rt.aterial to the Commission's licensing decision).
Similarly. Grand Gulf, ALAB-130 does not provide support for Mr. Eddleman's claims. In Grand Gulf, ALAB-130, the Appeal Board held that in passing upon the question as to whether an intervention petition should be granted, it is not the function of a licensing board to reach the merits of any contention contalued therein. Id. at 426.
Mr. Eddleman does not demonstrate that in formulating EPJ-1, the Licensing Board improperly reached the merits of the contentions from which it is derived.
A careful examination of those contentions and oral argument thereon reveals that the gist of those contentions was that "truly adverse" or
" disastrous" winter or adverse weather must be accounted for in the
- 43 L evacuation time estimates and/or off-site emergency plan. See, eg, CCNC Contention 5 (CCNC Contentions , supra, at 5). No basis is provided in the contentions that non-severe weather conditions could impede evacuation. In Mr. Eddleman's statements on appeal about the occurrence of light snow or ice in the vicinity of the liarris plant, he attempts to provide additional basis , which appeared to be lacking originally, for a contention relating to conditions other than severe snow and ice. Intervenors' Brief, at 3. However, these statements provide no support for the claim that the Licensing Board erred in its formulation, on the basis before it, of s single contention encompassing the original
" adverse weather" contentions. Contrary to Mr. Eddleman's assertion, 4
" oral argument" did not .,upport t h'e chims that he now makes for a different formulation of EP.1-1. E Finally, Mr. Eddleman's statement that severe weather can cause or contribute to serious nuclear accidents seems to suggest that what he is really concerned about is precisely thd
\
39/ For example, Mr. Runkle mainly asserts (in support of CCNC Con-
- 3 tention 5) that "
. . . there is a tot of rain and a lot of ice. . ."
(Tr. 931-32) . Similarly, Mr. Read's statements in support of CHANGE Contentions 3 and 32(1), primarily concern ". . . the workability of the plan under snow and ice conditions. . ."
(Tr. 869).
It is noteworthy that at the prehearing conference during which this oral argument was made, none of the Intervenors objected to the Board's formulation of EPJ-1. (Tr. 974-75). Similarly. the Inter-venors failed to object to the Board's wording of the contention in its written order.
Had Intervenora been truly aggrieved by the Board's action , they could have objected then. 10 C.F.R. -
Il 2,751a(d) and 2.752(c). A party must make a reasonable effort to have such an error corr 4cted and not save it for use as a grounds of reversal in the even't'It disagrees with the ultimate decision on the merits. Public Service Company of Indinna (Marble
!!ill Nuclaar Generating Station, Units 1 and 2), ALAB-459, 7 NRC 170, 189 (1978). I i
issue ' encompassed within EPJ-1, namely, severe weather. Intervenors' Brief at 3. Accordingly, the Staff submits that the Licensing Board's formulation of EPJ-1 should be upheld.
- 2. The Licensing Board Did Not Err In Rejecting Certain CHANGE Contentions (Contentions 4, 9, 20 and 21)
CHANGE Contention 4 CHANGE Contention 4 states as follows:
The operators of affected State Department of Trans-portation . and municipal public works departments equipment are not equipped with, or trained in the use of, radiation detection and protection equipment, and therefore there is no assurance that they will be
[ sic) to perform their tasks of clearing evacuation routes.
CilANGE Supplement, supra, at 3.
Both the Staff and Applicants objected to the admission of this contention. According to the Staff, CHANGE provided no basis to support its assertion that the Department of Transportation cannot implement that portion of the emergency plans providing for " trained radiological monitors." Staff Response I, supra, at 12. b Applicants urged rejection of CHANGE Contention 4 on the grounds that it did not address the provisions of the Emergency Response Plan (ERP) or explain why they are not adequate or cannot be implemented. Applicants' Answer To CHANGE, supra, at 14-15. Thus, according to Applicants, it lacked basis . Id,. at 15.
40/ The Staff also stated that the level of detail of the standard
~~
operating procedures M ops), providing for procedural duties, equipment and training, is not appropriate for inclusion in state emergency plans. d. at 13.
The Licensing Board's rejection of CilANGE Contention 4 rested primarily on the grounds that it does not address relevant provisions of the plan and for that reason lacks the required specificity. Tr. 978.
The Licensing Board also determined that a commitment to train someone is sufficient to provide reasonable assurance that the training will in fact take place. M.at978-79.
Mr. Eddleman argues on appeal that tiie issue of training of personnel of the State Department of Transportation and municipal public works departments involves a material issue of fact, the resolution of which may not be delegated by the Licensing Board to the Staff.
Mr. Eddleman cites Waterford , ALAB-732 in support of this argument ,
while at the same time stating that that decision was reversed in UCS v.
NIIC , supra. Intervenors' Brief at 4. Mr. Eddleman also argues that in rejecting CHANGE Contention 4, the Licensing Board reached the merits. M.
The portion of ALAB-732 upon which l'Ir. Eddleman relics here concerned " reliance on predictive findings and post-hearing verification."
ALAB-732, supra, at 1103. Specifically, in Waterford , Intervenors contended that the Licensing Board's reliance on " predictive" findings and
" post-hearing verification" deprived them of their right to a hearing on five contested and litigable issues. According to Intervenors, these matters involved material issues of fact, the resolution of which could not be delegated by the Licensing Board to the Staff. Id. at 1103.
The Appeal Board agreed with the basic principles upon which Inter-venors relied , Id., recognizing that as a general proposition , issues should be dealt with in the hearings and not left over for later resolution
and that the post-hearing approach should be employed sparingly and only in clear cases. Id.
However, the Appeal Board also noted that the Commission takes a slightly different course with respect to emergency planning. The Commission in its regulations has recognized the predictive nature of emergency planning findings. S Mr. Eddleman argues that the different course taken by tha Commission with respect to emergency planning was reversed by UCS v.
NRC, supra. This argument is without merit. Although UCS v. NRC, required the NRC t'o amend its regulations to remove the provision stating that emergency preparedness exercises are not required for any initial licensing decision, the UCS decision does not, as Mr. Eddleman asserts, change the general predictive nature of the Commission's findings on emergency planning and preparedness issues. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 834-35 (1984); 50 Fed. Reg.19323 (May 8,1985). S Mr. Eddleman also asserts that the issue of training as raised in CHANGE Contention 4 is necessarily " material and relevant" to the licensing decision , and that the UCS decision requires the Licensing Board to admit a contention raising any such issue as an' issue in
, -41/ The Commission's regulations also stated the Commission's determina-tion that the full-scale emergency preparedness exercise need not be part of the hearing process. As previously noted, that portion of the 1982 rule has since been invalidated by the UCS decision, supra.
-42/ When the Commission amended its regulations pursuant to UCS, supra, it explicitly stated that its amendment did not change the general predictive nature of the Commission's findings on emergency planning and preparedness issues. 50 Fed. Reg. 19323, supra.
controversy in the proceeding. It thus appears that according to Mr. Eddleman, if the Licensing Board fails to do so, it runs afoul of UCS, supra. However, such reasoning ignores the holding of that decision.
The Staff submits that there is no merit to Mr. Eddleman's arguments. The Licensing Board interpreted CHANGE Contention 4 as requiring that the particular emergency response personnel referred to must now be equipped with and trained in the use of radiation detection equipment. Tr. 979. Its rationale for rejecting that issue rested en the determination that whether somuoody is trained today is not relevant or litigable. Id. In view of the predictive nature of the findings on emergency planning and preparedness issues , this determination is entirely correct and, contrary to Mr. Eddleman's assertions , does not reach the merits. Accordingly, the Licensing Board's rejection of CHANGE Contention 4 should be upheld.
CIIANGE Contention 9 CHANGE Contention 9 states:
No provision is made in the State plan for the potential adverse reaction on the part of the general populace from the administering of potassium iodide to
. emergency workers and institutionalized persons, and not the general populace.
. CHANGE Supplement at 4.
The Staff and Applicants objected to the admission of this conten-tion . Staff's Response I at 14; Applicants' Answer To CHANGE, at 23-24. The Staff opposed its admission on the grounds that it lacked
specificity an c'. that it was merely a general statement of CHANGE's opinion. Sta:'f Response I at 14. According to the Applicants, there is no basis for the requirement promoted in CHANGE's contention.
Applicants' Response To CHANGE at 24.
The only argument Mr. Eddleman makes in support of the position that this contention was improperly rejected is that the Licensing Board
" violated" the "above-cited" law and reached the merits. Intervenors' Brief at 4. The " law" to which Mr. Eddleman refers is not apparent.
How any of the. decisions he cites elsewhere in his brief are applicable is not addressed by Mr. Eddleman. Mr. Eddleman's mere reference to these decisions does not remotely impugn the Licensing Board's rejection of CHANGE Contention 9. In the Staff's view, the Licensing Board's rejec-tion of this Contention (see Tr. 979) rested on the contention's lack of ~
basis . Accordingly, the Contention was properly rejected and the Licensing Board's determination should be upheld.
CHANGE Contention 20 CHANGE Contention 20 states:
~The plan provides inadequate assurance for prompt and safe evacuation by failing to provide special measures for controlling, evacuating and otherwise l . dealing with large numbers of North Carolinians who l have consumed large quantities of alcholol [ sic] or other drugs , which is likely to cause traffic and other control problems , particularly on Friday and Saturday nights, or pleasant weekends at Jordan Lake.
l CHANGE Supplement at 6.
l Tne Staff and Applicants objected to the admission of this l
contention. Both argued 'ar its rejection because no NRC standard l
l t
l
requires that an emergency plan specifically deal with persons under the influence of alcohol or drugs. Staff Response I at 18. Applicants also opposed the admission of CHANGE Contention 20 because in their view, it lacks the requisite basis. Applicants' Answer to CHANGE at 37.
The Staff does not agree with Mr. Eddleman's assertion (Intervenors' Brief at 3), that the Licensing Board clearly reached the merits in rejecting this contention. Rather, the Staff interprets the Licensing Botrd's rejection of the contention (Tr. 978) as essentially resting.on the ground that it lacks basis. On appeal, folr. Eddleman attempts to provide additional bases in support of the contention. Intervenors' Brief et 3-4.
Clearly , these statements do not cure the defects in the contention as originally proposed and provide no grounds for finding error on the part of the Licensing Board in its rejection. The Staff reiterates its position that there is no NRC standard requiring that an emergency plan specifically deal with persons under the influence of alcohol or drugs.
Staff's Response I at 18. Accordingly, the Licensing Board's rejection of this contention should be upheld.
CHANGE Contention 21 CHANGE Contention 21 states:
The plan provides inadequate assurance that should an evacuation be ordered on Sunday morning that churches in the affected area will be timely warned and evacuated. Provision should be made for alarms at all area churches.
CHANGE Supplement at 7.
The Applicants and Staff objected to the admission of this contention. The Staff objected to it on the ground that it did not set
forth any failure to conform to NRC requirements. Staff's Responso I at 19. Applicants argued that the Contention lacked basis.
On appeal, Mr. Eddleman merely asserts that - the Licensing Board reached the merits in rejecting this contention. Intervenors' Brief at 4.
However, in the Staff's view, the Licensing Board rejected the contention as essentially lacking in basis . Tr. 981. The Staff adheres . to its position as set forth in its Response, that there is no NRC requirement that places of religious worship be specifically alarmed. Accordingly, the rejection of this contention should be upheld.
- 3. The Licensing Board Did Not Commit Error In Its Rulings on CHANGE Contention 33 and Eddleman Contention 57-C-7 Relating To the Adequacy of Medical Facilities CIIANGE Contention 33 states:
Local hospitals have plans to treat only approximately 85 patients. This is clearly inadequate, as is evident from ' comparison of the probabilistic risk estimates in the FEIS. [ sic] This inadequacy is exacerbated by the fact the hospitals are located at various directions from the plant, so that some. of them may only be reached from the opposite side of the EPZ or a con-taminated area by long and/or circuitous routes. The hospital plan is also inadequate in that no provision is made for the likely increased number of arriving patients likely to have been injured in evacuation traffic accidents and/or home-care patients who have not made prior arrangements to evacuate elsewhere.
CHANGE Supplement at 9-10.
Both the Staff and the Applicants opposed the admission of CilANGE Contention 33. In urging reiection of this Contention, the Staff argued that it lacks basis and that it set forth no failure of the plan to conform to either 10 C.F.R. Part 50 or NUREG-0654. Staff Response I at 24.
c
4 O Applicants asserted that the Commission's decision in San Onofre SI precludes litigation of CliANGE Contention 33. Applicants Answer To CHANGE at 56.
The Licensing Board determined that litigation of CHANGE Conten-tion 33 was barred by the Commission's decision in San Onofre, supra.
Tr. 999-1000. See, also, Tr. 868. E Eddleman Contention 57-C-7 has had several forms. As the Board noted in its Order of August 3,1984, as originally proposed, it had three main subparts. N The Board initially rejected all of the subparts of Centention 57-C-7 except for the first part on the ground that the rejected parts of the contention either called for more than regulations and guidance require, or did not address the plans. Id. It admitted the first part of Contention 57-C-7, but in altered form. _Id . at 402.
Citing the Commission's decision in San Onofre, supra, the Board stated that it was barred from litigation of the adequacy of medical services to deal with the number of contaminated injured or contaminated people at Harris in the event of an accident. 20 NRC at 402.
43/ Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528 (1983).
. 44/ The Board's determination was made before the decision in GUARD overturning the Commission's interpretation in San Onofre, supra, of 10 C.F.'R. 5 50.47(b)(12) .
~
-45/ LB P-84-2 9B , supra, 20' NRC 401. The ' first part alleges that there will not be enough hospitals to treat " radiation victims'*; the second part alleges that the State ERP does not contain the plans the hospitals have for treating radiation victims; and the third and last part of 57-C-7 alleges that the State . ERP does not provide
' training or protection' for emergency workers transporting radiation victims to hospitals, d. at 401.
a .
Thus, although the Board did not admit the first part of 57-C-7 in the form in which ~ it is presented, it admitted a " lesser-included" contention which stated:
Neither the State ERP nor the county ones make cIcar whether the hospitals listed in Section V.B.3 of the State ERP are prepared ' to treat severe radiation exposure per se. Plans should include' lists of local and regional- hTspitals with the necessary capabilities to provide medical services for those seriously injured by radiation alone. [ emphasis in original) .
Subsequently, the Applicants filed a motion for summary disposition of the narrowed version of Contention 57-C-7, which was supported by the Staff / FEMA . S (Mr. Eddleman did . not oppose the Applicants' Motion. ) In its Memorandum and Order granting summary disposition, S the Board recognized the existence of GUARD v. NRC, supra, and provided a copy of it to the parties. The Board stated that the decision did not appear to affect its summary disposition ruling on this cot.tention.
Order of February 27 at 2.
On March 1, 1985, Mr. Eddleman filed a motion requesting that the Board reconsider its ruling on Contention 57-C-7, as it had been originally submitted, or as it might be modified in light of the GUARD decision. S In considering 'this Motion, the Board agreed with the
--46/ " Applicants' Motion For Summary Disposition of Eddleman 57-C-7,"
. January 2, 1985; " FEMA / Staff Response To Applicants' Motion For Summary Disposition of Eddleman 57-C-7," February 1,1985.
-47/ " Memorandum and Order (Rull'ng On Eleven Summary Disposition Motions") , February 27, 1985 [ hereinafter " Order of February 27.,
1985").
-48/ " Motion To Reconsider re Contention 57-C-7" [ hereinafter " Motion to Reconsider"] .
Applicants and the Staff SI that a ruling on Mr. Eddleman's Motion would be premature, in light of the likelihood of forthcoming generic Commission guidance to Licensing. Boards concerning GUARD, supr,a . Accordingly, the Board did not take any action at that time.
On December 9, 1985, the Licensing Board issued an Order 5_0 / in which it requested that Mr. Eddleman advise the Board and parties whether he wished to-renew his motion for reconsideration. In the event that Mr. Eddleman' renewed his Motion, the Board's Order directed the parties to file pleadings addressing the motion , and respond to three considerations posed by the Board. Order of December 9, 1985 at 2-3.
On December 23, 1985 Mr. Eddleman responded to the Board's Order. "Well's Eddleman's Response on Contention 57-C-7 (Contaminated Injured Persons)" [ hereinafter "Eddleman's Order Response"]. In his response, Mr. Eddleman requested that Contention 57-C-7 be admitted, in the following form:
The plan, except for a list of hospitals, does not provide for medical treatment of contaminated injured persons as required by NRC and other applicable rules , e.g. 10 CFR 50.47(b)(12), GUARD v. NRC (753 F.2d 1144 (198~). The plan does not provide for training or protection- from contamination for emergency personnel transporting these victims to medical treatment. There may well be more early radiation injuries and contaminated injured persons
, than the plan or existing medical treatment arrange-ments for contaminated injured persons can handle.
All these problems need to be solved in order to
-49/ "NRC Staff Response To. Intervenor Eddleman's Motion for Reconsideration ," March 13, 1985; " Applicants' Response To Intervenor Eddleman's Motion for Reconsideration of Eddleman 57-C-7" March 15,1985.
-50/ " Order (Concerning Arrangements for Medical Services) ,"
December 9,1985 [ hereinafter Order of December 9,1985].
assure effective protective action for contaminated
- injured people and protection from spreading contamination via injured persons requiring medical treatment.
Eddleman's Order Response at 1.
The Staff 'and Applicants responded to Mr. Eddleman's original motion , the Board's December 9, 1985 Order, and his response to that Board Order. S The Staff took the position that in accordance with the Commission's Statement of Policy on Emergency Planning Standard 10 C.F.R. 5 50.47(b)(12), S I it is reasonable to limit contentions on this subject to~ issues which' could have been heerd before the Court's decision in GUARD v. NRC, supra, -- that is whether the plans identify the existing medical facilities. According to the Staff, inasmuch as that issue had already been resolved through summary disposition, there were no issues arising from Contention 57-C-7 remaining to be considered. Staff January 3 Answer at 2.
The Staff also stated that in his December 23, 1985 Motion ,
Mr. Eddleman provided no additional bases which would support admission of those portions of Contention 57-C-7 previously rejected by the Board.
The Staff found that if anything, the modification in wording proposed by Mr. Eddleman was broad and more vague than the language originally
-51/ "NRC Staff Answer To Intervenor Wells Eddleman's Response On Contention 57-C-7 (Contaminated . Injured Persons)" January 3, 1986
[ hereinafter " Staff January 3 Answer"]; " Applicants' Response To The Licensing Board's Order (Concerning Arrangements for Medical Servicec)" December 30, 1985 [ hereinafter " Applicants' Response To Order") .
52/ 50 Fed. Reg. 20892 (May 21,1985).
proposed. Accordingly, the Staff concluded _that Eddleman Conten-tion 57-C-7 should be rejected. Staff January 3 Answer at 13.
In their response, the Applicants continued to oppose the admission of Eddleman Contention 57-C-7 in any form. According to Applicants, Mr. Eddleman's proposed formulation of the contention lacked the requisite specificity for a litigable contention. Applicants also stated that portions of the original contention were rejected for reasons apart from the San Onofre and GUARD decisions, supra. Applicants asserted that Mr. Eddleman had waived his right to relitigate other issues by failing to respond to Applicants' summary disposition motion. Finally , Applicants concluded that further litigation of medical services would be inconsistent
-with the Commissions' Policy Statement , and contrary to the principles established by the Appeal Board for the resolution of issues subject t<
rulemaking. Applicants' Order Response at 2.
On January 7, 1986, the Board issued an Order in which it denied Mr. Eddleman's motion for reconsideration and rejected his revised contention. " Memorandum and Order (Concerning Arrangements for Medical Services ,"' (January 7, 1986) [ hereinafter " January 7 Order").
The Board determined that the revised contention lacks specificity.
January 7 Order at 1-3. In conclusion, the Board observed that it was bound by the Commission's statement of policy and that Mr. Eddleman could raise his objections to that statement on appeal. Id.
On appeal, Mr. Eddleman claims that in light of the GUARD decision, supra , the Licensing Board erred in its determinations regarding
l Contentions 33 and 57-C-7. Intervenor's Brief at 4-5. b Mr. Eddleman appears to assert that the Licensing Board erroneously followed the rule invalidated by the GUARD decision. Id. at 5.
With respect to CHANGE Contention 33 and Eddleman Conten-tion 57-C-7, the Staff adheres to its previous position that in light of the Commission's statement of policy, it is reasonable to limit contentions on the subject of medical facilities to issues which could have been heard before the GUARD decision. Inasmuch as. that issue has already been resolved through summary disposition , Contentions 33 and 57 raise no issues requiring consideration. Moreover, to the extent that GUARD,.
sy ra, provides a basis for attacking the Board's initial ruling rejecting CHAnot Contention 33, CHANGE's failure to seek review of that decision when the Board initially provided a copy of the decision to the parties or thereafter, constitutes a waiver of the right to litigate that contention now.
Mr. Eddleman completely fails to address the Board's holding of January 7, 1986 regarding Eddleman Contention 57-C-7, which rejected the contention for reasons wholly unrelated to the GUARD decision (namely that the contention lacked specificity and was in no way tied to alleged defects in the emergency plan). January 7 Order at 1-2.
Mr. Eddleman is incorrect in stating that in its Order, the Board followed a rule invalidated by the GUARD decision. First of all, the GUARD decision did. not invalidate any regulation. As the Staff pointed
-53/ He also incorporates the arguments made in his Response To Board's December 23,1985 Order. Intervenors' Brief at 5.
out, in GUARD, the court invalidated that part of the Commission's interpretation of 10 C . F. R . 5 50.47(b)(12) which stated that a list of treatment facilities constituted adequate arrangements for medical services for individuals who ~might be exposed to dangerous levels of radiation at locations offsite from nuclear power plants. Staff's January 3 Answer at 6. The Court did not review any other aspects of the Commission's interpretation of planning standard (b)(12). b In its Statement of Policy the Commission provided interim gt.idance until it " determines how it will respond to the Court's remand." 50 Fed.
R g . at 20893. According to the Commission's Statement of Policy, until the Commission instructs its boards and its staff differently, it is reasonable to limit contentions on this subject to issues which could have been heard before the Court's decision in GUARD. 50 Fed. RS . 20894.
The Statement of Policy also requires Applicants to commit to full compliance with the Commission's ultimate response to the GUARD remand, b As the Licensing Board's Order noted, the Applicants have in fact made such a commitment. January 7 Order at 3.
- Mr. Eddleman's objections to the Commission's policy statement not-withstanding, the Board properly recognized its binding nature here and correctly applied the guidance therein. January 7 Order at 3. In this regard, the Staff notes that other licensing boards have recognized the
-54/ The Court also afforded the NRC substantial flexibility in its reconsideration of planning standard (b)(12). 753 F.2d at 1146,
-55/ The Staff notes that on May 20, 1985, the Commission published for comment a petition for rulemaking on the issue of medical arrangements. 50 Fed. Reg. 20799 (May 20,1985).
binding nature of this guidance in ruling on the admissibility of contentions concerning arrangements for medical services for contaminated injured individuals. -
In sum, none of Mr. Eddleman's arguments establishes that litigation of the issues raised in CHANGE Contention 33 and Eddleman Contention 57-C-7 is now required. Accordingly, the Licensing Board's exclusion of those issues should be upheld.
- 4. The Licensing Board Did Not Err In Rejecting Wilson Contention I, CHANGE Contention 23 and Eddleman Contentions 57-C and 57-C-2 Relating to The Configuration of the Emergency Planning Zone (EPZ)
Wilson - Contention -1, CHANGE Contention 23 and Eddleman i
Contentions 57-C (Revised) and 57-C-2 all relate to the configuration of the Harris EPZ. " Contentions of Richard Wilson Concerning North Carolina Emergency Response Plan," at 1 ( April 13, 1984) [hereinaf ter
" Wilson Contentions"]; CHANGE Contentions at 7; Wells Eddleman's Contentions (2d Set) at 4.
Wilson Contention I alleges that the plan is deficient because it does not justify the ten-mile EPZ and the exclusion of the town of Cary and a 1
yet unbuilt hospital. Wilson Contentions , at 1. Both the Staff and 4
Applicants took the position that Wilson Contention I should be denied.
Staff Response II at 9; Applicants' Response To Wilson at 2-4. According l
56/ Georgia Power Company (Vogtle Electric Generating Plant, Units 1 and 2), " Memorandum and Order (Ruling on Joint Intervenors' Proposed Contentions on Emergency Planning ," August 12, 1985, at 22-23 (unpublished). Accord, Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), " Memorandum and Order Denying Suffolk County's and State of New York's Motion To Admit New Contention," August 1,1985 (unpublished).
i
to the Staff and Applicants, the contention lacks the specificity and basis required ' of an admissible contention and is a challenge to the 10-mile plume exposure pathway emergency planning zone (EPZ) for the Harris plant. I_d .
The Licensing Board rejected Wilson Contention I primarily on the ground that local officials are not obligated , in the first instance, to justify their decision regarding the size of the EPZ. Tr. 984. According to the Board, Dr. Wilson presented no basis for his conclusion that the town of Cary and a hospital, not yet built, should be included within the EPZ. Tr. 984-85. The Board observed that as a general rule, evacua-tion planning outside the 10-mile EPZ .is not required. Tr. 984.
With respect to CHANGE Contention 23, the #t n( and Applicants both urged its rejection. Staff Response I at 19; Applicants' Answer To CHANGE at 40-41. The Staff noted that the contention' alleged that the plan is deficient because it does not set forth how state planners arrived.
at the appropriate 10-mile radius plume exposure pathway EPZ. Id. The Staff concluded that in the absence of any error on the part of the State in determining the EPZ, the contention should be denied. Id. Applicants submitted that CHANGE Contention 23 should be rejected as lacking both adequate basis and specificity for a litigable conten tion. Applicantr' Answer To CliANGE at 40.
In considering the admissibility of CHANGE Contention 23, the Licensing Board determined that the contention focused on whether there has to be some written justification for the EPZ to which one can resort in studying the plan . Tr. 982. The Board ruled that such a justification is not necessary.. d .
_I_d
Insofar as Eddleman -Contentions 57-C and 57-C-2 are concerned, the Staff and Applicants argued for their rejection. Staff Response II at 27;
" Applicants Answer To Ed'dleman Proposed Contentions On SHNPP Emergency Response Plans ," at 14 ( April 27, 1984) [ hereinafter Applicants' Answer To Eddleman]. The Staff pointed out that both of these contentions allege that the 10-mile EPZ should be expanced to twenty-five miles in some directions. Staff Response I at 27. The Staff concluded that these contentions are redundant and, if admitted at all, should be conbined. The Staff, as did Applicants, argued that these contentions constituted a challenge to the Commission's regulations and should not ' be admitted as matters in controversy in this proceeding.
Id.; Applicants' Answer To Eddleman at 14.
The Board rejected these contentions (as- well as the other Eddleman contentions concerning the plume EPZ) as impermissible attacks on 10 C.F.R. S 50.47(c)(2), the Commission's regulation on the size of the plume EPZ. Id. The Board concluded that even if Section 50.47(c)(2) permitted the expansion Mr. Eddleraan seeks, he has not set forth any reasons for the need for the expansion. Id. at 7.
In appealing the Licensing Board's rejection of Wilson Contention 1, CIIANGE Contention 23, and Eddleman Contentions 57-C and 5 7- C- 2, Mr. Eddleman asserts that the Licensing Board's ruling was arbitrary and capricious. Intervenors' Brief at 5. Mr. Eddleman also seems to advocate the position that had the Licensing Board combined these -
contentions, the objections to their admissibility would somehow be obviated. _Id . Mr. Eddleman also argues that large populations downwind should be taken into account in setting the EPZ boundary, which he
continues to insist must be justified. Intervenors' Brief at 5. In support of this argument, Mr. Eddleman cites UCS v. NRC, supra. IIe also repeats the argument he makes with respect to the Licensing Board's determinations rejecting other contentions (that in doing so, the Board reached the merits of the contentions). _Id .
Mr. Eddleman's arguments are without merit. With respect to Wilson Contention I and CIIANGE Contention 23, the Staff adheres to its position that these contentions should be rejected as a challenge to the ten-mile EPZ configuration , without adequate basis and specificity. NR C Staff's Response II at 9. No support is cited for the position that the size and boundaries of the EPZ must be justified in the first int,tance, and indeed, there is no support for this position. I Accordingly, the Licensing Board's denial of the contentions (Tr. 982, 984-85) should be upheld.
There is also no support for Mr. Eddleman's position that "la rge populations downwind should be taken into account in setting the EpZ boun dary. " The Staff submits that the Licensing Board properly rejected the contentions expressing this position (Eddlenan Contention 57-C and 5 7- C-2) as impermissible attacks on 10 C.F.R. S 50.47(c)(2). Further Rulings on Admissibility, supra , at 6. Although the result of the application of this regulation may not coincide with Mr. Eddleman's position , as the Licensing Board pointed out, it must adhere to the
-57/ The Staff does not interpret the recent Appeal Board decision in Shoreham, ALAB-832, as requiring justification in the plan for the configuration of the EPZ in the first instance. Long Island Lighting Company (Shoreham Nuclear Power Station , Unit 1), ALAB-832, NRC (March 26,1986), slip op at 15-20.
regulation. Id. Accordingly, the Licensing Board's determination regarding- Eddleman Contentions 57-C and 57-C-2 should be upheld.
- 5. The Licensing Board Did Not Err In Rejecting EPX Contentions 4, 9,10 and 11 Eddleman Contentions EPX 4, 9, 10 and 11 all relate to the Emergency Planning Exercise conducted at Ilarris on May 17-18, 1985.
" Contentions Based on Emergency Planning Exercise," at 3 (September 30, 1985) [ hereinafter " Exercise Contentions"J.
The Staff and Applicants opposed the admission of all twelve of Mr.
Eddleman's emergency planning exercise (EPX) contentions on the grounds that they were. untimely 58/ and that they lacked a ragulatory basis. S The Staff and Applicants also discussed deficiencies in each of the twelve contentions. b At the - close of' the evidentiary hearing .on Eddleman Conten-tion 57-C-3 on November 5, 1985, the Licensing Board ruled on the twelve emergency preparedness exercise contentions. The Board admitted two of the contentions (one was modified) and rejected the other ten
-58/. "NRC Staff Response To Intervonor Wells Eddleman's Proposed Con-tentions Based on The Emergency Planning Exercise," at 6-10 (October 15, 1985) [ hereinafter " Staff Exercise Response"];
" Applicants' . Response To Eddleman Proposed Contentions Based on Exercise," at 2-7 and 29-41 (October 15, 1985) [hereinaf ter "Appli-cants' Exercise Response").
59/ Staff Exercise Response at 10-12; Applicants' Exercise Response at 8-14.
6,0_/ Staff Exercise Response at 12-20; Applicants' Exercise Response at 14-29. Mr. Eddleman filed a reply to the Staff and Applicants.
" Wells Eddleman's ' Reply on Emergency Planning Exercise (EPX)
Contentions," (October 28, 1985).
e -
contentions. In ruling on the contentions, the Board stated that it would provide reasons for its rulings in the Partial Initial Decision.
Tr. 9971-74. In that PID, the Board set forth its reasons. E The Board there noted that two considerations were largely decisive in its rulings. The first factor was that the contentions arose at the end of a lengthy public evaluation process designed to surface serious planning defects. LDP-85-49, supra, 22 NRC at 909. Secondly, the Board felt that. it should take into account that FEhlA's determination that th e' exercise was satisfactory and that the cited deficiencies were correctable. S M.
The Board's rulings relied heavily on the " fundamental flaw" standard, as discussed by the Court in UCS v. NRC, supra. LDP-85-49, 61/ LBP-85-49, supra, 22 NRC 899, at 908-14.
62/ The Board explained that:
Apart from the ' fundamental flaw' criterion ,
10 C.F.R. S 50.47(a)(2) provides that in any NRC licensing proceeding, the FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability.
In addition , FEMA made specific findings about several of the problems that were to form the bases of Mr. Eddleman's contentions. To be sure, the quoted regulation is not directly applicable at the
. contention stage: it comes into play when a contention goes to evidentiary hearing. Nevertheless, this regulation implies that a Board should give a FEMA finding of adequacy or correctability some deference at the contention stage. We have done so in this case. [ citations omitted).
_Id. at 910.
o %
supra, 22 NRC at 908-912. The Licensing Board agreed with the position taken by the Commission in UCS v. NRC that the energency preparedness exercise is only relevant to its licensing decision to the extent it indicates that emergency preparedness plans are fundamentally flawed, and is not relevant as to minor or ad hoc problems occurring on the exercise day.
_Id. at 909-910. E The Licensing Board concluded that where,'as here, there has been an opportunity to dispute issues raised by the energency preparedness exercises, and the pleadings make it apparent that the bulk of the contentions do not involve " fundamental flaws," such contentions may properly be rejected. _Id. at 910, fn.1. 64/
The Board applied the standards discussed above in considering the admissibility of each of the twelve Eddleman EPX contentions. Id. at
-63/ As the Licensing Board recognized , the Court in UCS did not approve or disapprove of that standard. _Id. ct 909. The Court in UCS stated that . . . we in no way restrict the Commission's authority to adopt this as a substantive licensing standard." UCS, supra, at 1448.
64/ The Licensing Board was mindful that the Court in UCS spoke of the Commission's authority to adopt such substantive licensing standards. The Board noted that to its knowledge:
the Commission itself has not formally done so. Appar-ently, this is an issue of first impression. However, our delegated authority to decide this case includes the authority to decide novel legal questions, subject to Appeal Board and Commission review. -Cf. Duke Power Co.
(Catawba Nuclear Station , Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985).
Ld
i >
911-12. The Board also applied the lateness factors as enunciated in Catawba, CLI-83-19, supra, b On appeal, Atr. Eddleman asserts that in rejecting EPX Conten-tions 4, 9, 10 and ~ II, the Licensing Board reached the merits and denied a hearing on matters litigable under UCS v. NRC." Intervenors' Brief at 6. According to Atr. Eddleman, the Licensing T >ard erred in I
applying the " fundamental flaw" standard to his contentions because the Commission has not adopted that standard. Id. Air. Eddleman further asserts that his contentions are specific and that the Licensing Board wants to leave the matters raised in EPX Contentions 4 and 9 (training)
"until later . . . which they cannot do." Id.
Air. Eddleman's arguments are without merit. They provide no basis for overruling the Licensing Board's rejection of certain of his emergency preparedness exercise contentions.
The Staff adheres to the position it took in initially considering the admissibility of these contentions, namely, that they should be rejected for failure to raise issues of regulatory compliance and thct the contentions do not allege fundamental flaws in emergency preparedness.
Staff Exercise Response at 10.
Air. Eddleman's primary objection to the Licensing Board's application of the " fundamental flaw" standard is that it has been applied here by the Licensing Board and not by the Commission. IIe completely ignores 65/ However, the Board noted that having rejected ten of the twelve contentions on other grounds, it is only necessary to apply that test to the two contentions it admitted. LBP-85-49, supra , 22 NRC at 913.
,n- ,- ,,e ~ > , - - - . - - + - - - ~
9 s l
the determination of the Licensing Board in its PID that its delegated authority to decide this case includes the authority to decide novel legal
- questions (subject to Appeal Board and Commission review). LBP-85-49, 1
supra, 22 NRC at 910, fn.1. Although Mr. Eddleman cites UCS v. NRC in support of his position that the - Licensing Board erred in rejecting certain of. his EPX contentions, as the Licensing Board recognized, that !
decision actually supports its determinations. Nowhere does the Court ~in i
UCS suggest that the fundamental flaw standard cannot come into play in an adjudicatory body such as a licensing-board.
'Moreover, to the extent that Mr. Eddleman asserts his contentions are specific, he is in error. As the Staff has previously pointed out, as framed, these issues do not set forth enough detail to inform the parties as to what is to be litigated in this proceeding. Staff Exercise Response at 11'.
Mr. Eddleman also is in error when he states that with respect to the matters raised in EPX Contentions 4 and 9, the Board wants to leave those matters for later. Intervenors' Brief at 6. The Board specifically addressed these contentions. LBP-85-49, 22 NRC at 911-12. Its reasons for rejecting them are that the deficiencies are "readily correctable" (EPX-4) or " minor" and " correctable" (EPX-9). Id.
I* In sum, the Staff submits that the Licensing Board properly applied i
the relevant standards in rejecting EPX Contentions 4, 9, 10 and 11 and that its action should be upheld.
l l
I i
s .
- 6. The Licensing Board Did Not Err in Rejecting Wilson
. Contentions 3, 4, and 5(b)(c)(d) and (e)
Both the Staff and the Applicants opposed the admission of Wilson Contentions 3 and 4. 66/ The Staff noted that these contentions allege that the Plan is deficient because it does not specify the decisionmaking process of the State Emergency Response Team (SERT) leader. NRC Staff's Response II at 2. The Staff concluded that these contentions should be denied because on their face as they are erroneous assertions regarding the. content of the Plan. Id. at 13.. Applicants pointed out that both contentions lack basis because there is no requirement that this type of information be included in the ERP. Applicants' Response at 7.
Concerning Contention 5(b), (c), (d) and (e), the Staff noted that these subparts attack the means identified in the plan for disseminating information to the public. NRC Staff's Response II at 14. In the Staff's view, a fair reading of the plan demonstrates that there is a commitment to employ the means set forth therein for public dissemination, d.
According to Applicants, subparts (b), (c), (d) and (e) of Conten-tion 5 lack adequate bases to be litigable contentions because Applicants have committed to provide a public information brochure for a r.nual dissemination, and there is no requirenent that any other particular methods for public education and information be provided. Applicants' Response at 9.
In rejecting Wilson Contentions 3 and 4, the Licensing Board noted that the criteria for evacuation, which is a key judgment, are spelled-out 66/ NRC ' Staff Response II at 12-14; Applicants' Response To Wilson at 7-9.
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very clearly. '"r. 9 85. The Board repudiated the thesis of the contentions that the plan must spell out how deciding officials will make their decisions. Tr. 986.
Concerning Contention 5(b), (c), (d) and (e), the Licensing Board determined that: (1) with respect to subpart (b), the plan provides a commitment to use some or all of those methods (Tr. 986); and (2) with respect to the other subparts that the level of detail called for in these subparts was excessive. Tr. 986-87.
On appeal, Mr. Eddleman claims that the Licensing Board reached the merits in rejecting these contentions. In support of his position, he once again cites UCS v. NRC, supra, and Waterford, ALAB-732, su pra.
The Staff submits that these contentions were properly rejected for lack of basis. As previously stated, there is nothing in USC v. NRC that requires the admission of contentions which fall to satisfy the. basis requirements of 10 C.F.R. 5 2.714(b). Furthermore, Mr. Eddleman points to nothing in ALAB-732 which supports his position, and the Staff does not discern in that decision any such support. Accordingly, the Licensing Board's rejection of these contentions should be upheld.
- 7. The Licensing Doard Did Not Err In Rejecting Eddleman Contentions 57-D-1, D-2 and D-3 Contention 57-D-1 alleges that- evacuation time estimates are unrealistic. Contention 57-D-2 advocates the use in the evacuation time estimates of a greater evacuation speed. Contention 57-D-3 alleges that the plan does not provide for the accurate location of a radioactive plume if the wind shifts. Wells Eddleman's Contentions on The Emergency Plan (2d Set)," at 4-5 (April 12, 1985) [ hereinafter "Eddleman's ' Second Set"].
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i Both the Staff and the Applicants opposed . the admission of ~ these contentions. .NRC Staff Response II at 28-29; Applicants' Answer To Eddleman at 23, 39. The Staff concluded that these contentions lack basis and should not be admitted as matters of controversy in this proceeding. With respect to Contentions 57-D-1 and 57-D-2, Applicants maintained that they should be rejected as untimely, lacking in basis and specificity and as an imperriissible challenge to the regulations.
Applicants' Answer To Eddleman at 39. Applicants took the position that Contention 57-D-3 is untimely and also lacking in basis. Id_. at 23.
Although the Licensing Board did not reject any of these contentions as untimely, the Licensing Board rejected Contentions 57-D-1 and 57-D-2 inasmuch as no NRC regulation or guidance sets forth a time limit on evacustion. June 14, 1984 Order, supra, at 23. The Licensing Board rejected Contention 57-D-3 because it failed to address the plan. d .
I_d at 11.
The Staff submits that Afr. Eddleman's blanket assertion on appen1 that these contentions have " adequate basis and specificity per ALAB-130" completely - fails to establish error on the Licensing Board's part.
, 3!r. Eddleman makes no attempt to dispute the rationale for the proper rejection of these contentions. Similarly, his repeated citation of IICS v.
NRC does not support his position. That decision does not imply, as Mr. Eddleman suggests, that all contentions relating to emergency planning which are proposed as-issues in controversy in a proceeding necessarily raise issues material to a licensing decision. Accordingly, the Licensing Board's rejection of Eddleman Contentions 57-D-1, D-2, and D-3 should be upheld.
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VI. CONCLUSION For the reasons set forth above, the Staff concludes that all of the Licensing Board's rulings which are the subject of the instant appeal should be affirmed.
Respectfully submitted,
{ N $ E. Y W Charles A. Barth Counsel for NRC Staff DT/J /FDL MAm1 Janice E. Moore Counsel for NRC Staff M d' AY Marjorie U. Rothschild Counsel for NRC Staff Dated in Bethesda, Maryland this 27th day of March,1986 e
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. 4, -
i UNITED STATES OF AMERICA
. NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
CAROLINA POWER AND LIGHT )
COMPANY AND NORTH CARN.INA ) Docket No. 50-400 OL EASTERN MUNICIPAL POWER )
AGENCY )
)
(Shearon Harris Nuclear Power Plant) ) /
l' ~
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN REPLY TO Tile APPEAL OF WELLS EDDLEMAN AND TIIE EMERGENCY PLANNING JOINT INTERVENORS FROM THE LICENSING BOARD'S PARTIAL INITIAL DECISION ON EMERGENCY "LANNING AND SAFETY CONTENTIONS" in the above-captioned proceeding
.;e been served on the following by deposit in the , United States mail first class, or .(*) through deposit in the Nuclear Regulatory Conmission's internal mail system, this 27th day of March,1986:
James L. Kelley, Chairman
- Richard D. Wilson, M.D.
Administrative Judge 729 Hunter Street Atomic Safety and Licensing Board Apex, NC 27502 U.S. Nuclear Regulatory Commission Washington, DC 20555 ~
Mr. Glenn O. Bright
- Travis Payne, Esq.
Administrative Judge 723 W. Johnson Street Atomic Safety and Licensing Board P.O. Box 12643 U.S. Nuclear Regulatory Commission Raleigh , NC 27605 s Washington, DC 20555 Dr. James H. Carpenter * , Dr. Linda Little J."
Administrative Judge Governor's Waste Management Building Atomic Safety and Licensing Board '
513 Albermarle Building U.S. Nuclear Regulatory Commission 325 North Salisbury Street Washington, DC 20555 Raleigh, NC 27611 Daniel F. Read John Runkin, Esq. Executive Coordinator CHANGE Conservatfort Counsel of North Carolina P.O. Box 2151 307 Granville Rd.
Raleigh, NC 27602 Chapel Hill, NC 27514 y
___,_-_w -
s r O
Steven Rochlis, Esq. H. Joseph Flynn, Esq.
e Regional Counsel Associate General Counsel FEMA Office of General Counsel 1371 Peachtree Street, N.E. FEMA Atlanta, GA 30309 500 C Street, S.W. Rm 840 Washington, DC 20472 Atomic Safety and Licensing Appeal Bradley W. Jones, Esq.
Board Panel
- Regional Counsel, USNRC, Region II U.S. Nuclear Regulatory Commission 101 Marietta St., N.W. Suite 2900 Washington, DC 20555 Atlanta, GA 30323 Robert P. Gruber Executive Director Thomas A. Baxter, Esq.
Public Staff - NCUC John H. O'Neill, Jr. , Esq.
P.O. Box 991 Shaw, Pittman, Potts & Trowbridge Raleigh, NC 27602 1800 M Street, N.W.
Washington, DC 20036~
Wells Eddleman Atomic Safety and Licensing Board 812 Yancy Street Panel
Durham, NC 27701 U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard E. Jones, Esq. H. A. Cole, Jr. , Esq.
Associate General Counsel Special Deputy Attorney General Carolina Power & Light Company Antitrust Division P.O. Box 1551 Office of Attorney General Raleigh, NC 27602 200 New Bern Avenue Raleigh, NC 27601 b/bb Janice E. Moore
- MIMD Counsel for NRC Staff 6
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