ML20141D912

Nuclear Regulatory Commission Issuances for October 1985. Pages 651-769

ML20141D912
Person / Time
Issue date:	12/31/1985
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V22-N04, NUREG-750, NUREG-750-V22-N4, NUDOCS 8601070494
Download: ML20141D912 (125)

Text

_ _ _ . _ _ . _ _ _ . _ _ _ . . . _ _ _ _ _ __. , _ _ _ _ _ _ _ _ _ _ _ _

J__ -

i

. ) ~ - ---

i1 1

T1

{ l 1

i

,? NUREG-0750 Vol. 22, No. 4 Pages 651-769

.g-4

.y .

.'~,'g I

4

.Q

- + ,

. g '

- .

- ,. n: ,

h h1 WCOlV V SS g g-NUC EA 04 EGUbibR[kh

'SSUA\lCESMkk w M ii g .,

.],q1'.g

. . , e.

7 N

1. m .,4@,.gggg)sig y -

y >. j.c.jp,<

e 4,y.g.q. 4pp .-. 9.; p ,a i[g, ^.C 7. ,,f,'y', 4 <. .....g yg i; - w c

?

4%4:R%J;

.5 y ?? m.,f: ~ .# ' ' '

. " ut +

t  %%h W.y .<. -Wn vf .:* A: r ' Q:c e.y.. .

2 v -.7 F. ,.:y. y.*R;' h . " .* .' .. -. .-; .t.g.r .

l Afh . ,. bf (

y..b.; te.! - ;; y ,e,eg .. v c fp..m# L-fv.g.pm ....:c.p:  ;

.w g..%>; e "g. .

Si . _),,. ; ; ; .7.

s

c. . ?. f

.E 3 .

- .I. $.hf.

a. w .-

. ,, - 4. s. e

/W Vsh cf:q $a; $'M. L 6 r/ .3. s . :.

,{ 4.,\g., 7 P . ;.- "y/ ?.

y .' .

?:. W;.a.. 4..-p.a..*;4.np.p.M A-l g g5.M '

-74

• 4 'P i

, q"ip&

q

(

i . s. m .,. .

r. ~. %.w : - . . g. . ..a. v. -

~. 2, .n. . . ,.

Y gyGl)g. 3._..p. , '. ;. .;_c ;q;. ; . .. . .u;.;a.

w y ^: .. , .

~4.

c

, && .' .:. _ g _ y ,: / J. j_ ' . 3 ._. .. . .g. _. ,. . . . . ;:.

\.. .- ,;.'-

Y$f:  ::' .:"".4: . , . . :: '.n'-

t 2 '

>Op ..

. . .. s ;. . .. ;u t

.-; .. . p: t . . ;y' . g .f : , . f: F. .;7y. . e. . , _.

,p .

.7 .

..*9_y$ n l1 i}

$$+>,Q.{s.f:'.lh?::'.:

- ,. . u ,.y : _ . , . . * . . . ,

%l"3.kh

. . Q ; ..

AO..._..- f '. '.f.;. .l;p..

'9 .';; ,. ~.,.7 W s f .' f, h & .,h R j f .

O * ;- l . k' ; k. . ' ;: } w , '?,~, J % ' _ . , .

. * . wM.J . p W 6 ..' -. r,- . 4y. .s'y<;. ,.:. .-

.. . . e . e ir :'.,:. r.

~-e' 4 , ic,4.. -- .m r. .s ., Ci> :3; s . .

..e.

• n s ..>'otr <-

ll , ./ h] . .,

, . ~ $. S .. U ^Q* Y ".'.! . , .I ,

? .$& $t h'vYi b*'s? Y" & .)f. . .~-

> F. -s, ,'

M .f.fh'Y.1}* h.. f Y

[ '_[ .. .

'fl

.W - l. ,J .. ' ' ~-

.- ~. '

e :e...>

r g .4 .-

- .-: ;R . > c . -,, ..,.-

% i.,.;'? ...*;* ::;g l*-S. ',q.~

. . ; , ; ' ?.Q . .- l ?; 2. e O ' '

' . ' L. %c '1: '

...u

v'

....';_* .o V{;-

r

.' .ss ' j:

y' ^?2 ..~ f ' '::..; '.L'..Q*.:;f { .;& . -~ ? . ' . ' : ' . . . .~.:i . ' .W :, ' _% ':A

~ ', :: 'V, .?,-'.'

. . +.

'f : -

."%-. , . . ' - ,'. ~\ ._.., ' . .

.' -c? -

-;

. ci ?. h., - ( .'. . - . : : .

l ),':  : y..+ [N h-;.._';. f i:. .;.

W '

3).. j ';' . .,. _ _

".c; ,?

-'  :. * !_. _' . _j. .

'(_...

..,'.x',*',.'

,i

?:g ..;4.P9'G:,.: .;y.

.; m. a .,..-o.- .: .

> /, ,.:. , '.. .......a* . .J /..- ,l. .; , ";. ,- .- .; ..; '-

.s

. j,.

i ,; y ,,s , ,

..7_g : - . .. _4 ., _.,.e ,e - '

n ., :. ' . , . . <: .. . . c ut 7 ,, , . , , , ,

, , , , 4,.v.,,,. * .t ,y

.:-- .. , .j : . , .

..s,.,- = c .

,g il's . .

.4 8601070494 851231

. PDR NUREG t

0750 R PDR

/

-_.m

m. . a. =. - m_ -m __=mm-...--w-~-%._._______ l

I ,

I t

i l i

._ 4 1

Available from Superintendent of Documents U.S. Government Printing Office Post Office Box 37082

. ' Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexis, and 4 hardbound editions for this publication.

Single copies of this publication are available from National Technical . - _ . _

y .

. Information Service, Springfield, VA 22161 1

d Errors in this publication may be reported to the Division of Technical Information and Document Control, Office of Administration,

~

U.S. Nuclear Regulatory Commission, Washington, D.C. 20565 (301/492-8925) or_(_301_/.492-7566) - - . - . - - -- ..-.

k 7 .

s f

i i

ML -

2 .

== - ._- z. -_ _.___- _ . . _ _ ... , _ x . _ . , _ , _ . . . ., _,,,.

_ _ _ .. - . . n __ __ __ .

l l

4 NUREG-0750 ,

Vol. 22, No. 4 l

-;.j Pages 651-769

~ _

.h  !

" ~

NOCLEAR REGULATORY COMMISSION ISSUANCES it October 1985 - -

1 - __ .__

-t .

. This report includes the issuances received during the specified period from the Commission (CU), the Atomic Safety and Ucensing Appeal Boards (A(N3), the Atomic Safety and Ucensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Dec.ials of Petitions for Rulemaking (DPRM).

. The summaries and headnotes preceding the opinions reported herein are not tobe deeme5 a part of those opinions or to have any indepen-

' dent legal significance.

,} .... .

i U.S. NUCLEAR REGULATORY COMM,lSSIOS Prepared by the Division of Technical information and Document Control, Office of Administration, U.S. Nuclear Reguistory Commission, Washington, D.C. 20555 (301/492-8925) ,

I 1

l l iI +

+ :c2 -l

mr i

9 1 .

COMMIShlONERS .

Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal-Lando W. Zech, Jr.

,,2 . - . a% e+ - -

F Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeal Panel

. B. Paul Cotter, Chairman, Atomic Safety and Licensing Board Panel r

e B, ,

P 4

L;c y N__

e im-  %

T i -. . . _._ . .. . _____ ._ . _

s

~

i j i

I

/

i 1

1 CONTENTS l Issuances of the Atomic Safety and Licensing Appeal Boards I

l ~

CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

(Perry Nuclear Power Plant, Units I and 2)

Dockets 50-440-OL,50-441-OL MEMORANDUM AND ORDER, ALAB-820,- October 24, 19 8 5 . . . . . . . . . . . . . . . . . . . . . . . 743 i

l LONG ISLAND LIGHTING COMPANY l (Shoreham Nuclear Power Station, Unit 1)

Docket 50-322-OL-3 (Emergency Planning) i DECISION, ALAB-818. October 18, 1985 . ... . . . . . . 651 i . .

j METROPOLITAN EDISON COMPANY, et al.

8 (Three Mile Island Nuclear Station, Unit 1)

I Docket 50-289-SP (Restart)

MEMORANDUM AND ORDER, ALAB-821, October 25,1985. . ............. . ........ 750 PHILADELPHIA ELECTRIC COMPANY f (Limerick Generating Station, Units I and 2) .

Dockets 50-352-OL, 50-353-OL DECISION, ALAB-819, October 22,1985 ... . . . . . . 681 l

Issuances of the Atomic Safety and Licensing Boards COMMONWEALTH EDISON COMPANY (Braidwood Nuclear Power Station, Units I and 2)

Dockets 50 456 0L,50-457-OL (ASLBP No. 79-410-03-OL)

MEMORANDUM AND ORDER, LBP.85-40, October 4, 19 8 5. . . . . . . . . . . . . . . . . . . . . . . . . 759

! TEXAS UTILITIES ELECTRIC COMPANY, et al.

. (Comanche Peak Steam Electric Station, Units I and 2)

{ Dockets 50-445-OL&OL-2, 50-446-OL&OL 2 2

-(ASLBP No. 79-430-06-OL)

MEMORANDUM AND ORDER,

LBP-85-39, October 2,1985. . . . . . . . . . . . . . . . . . . . . . . . . . 755 l .

p lil' i

TEXAS UTILITIES ELECTRIC COMPANY, et al.

(Comanche Peak Steam Electric Station, Units 1 and 2)

Dockets 50-445-OL&OL-2, 50-446-OL&OL-2 (ASLBP No. 79-430-06-OL)

MEMORANDUM AND ORDER, LBP-85-41, October 31,1985.... . .......... . .. .... 765

-.---...,_=me._ - - --. e .-w.. ---, a- - ye-- - - , . - -

e b

8 i

P

=

~< . a-Iv 4

1

. 1 k.n - _ : -~. = .- - - .._. - .. - _-

l

^ ~

) Atomic Safety and l Licensing Appeal -

Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL

! Alan S. Rosenthal, Ch, airman -

= . = - -

p l Thomas S. Moore Christine N. KoN Dr. Reginald L. Gotchy Howard A. Wilber O

g

_ -. sumum=e"*

L x:2--._ '- - *~ *- - '*::.*,-w_.___~.,_..._;,,___..,,;_ . - _ , . , - , .

Cite as 22 NRC 651 (1985) ALAB 818 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman Gary J. Edles Howard A.Wilber In the Matter of Docket No. 50-322 OL-3 (Emergency Planning)

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) October 18,1985 The Appeal Board affirms the Licensing Board finding in the emergen-cy planning phase of this operating license proceeding that the applicant ,

lacks the legal authority to implement material features of its proposed '

emergency response plan, and therefore, that such a plan cannot be car-ried out in conformity with Commission regulations.

EMERGENCY PLANS: CONTENT (ONSITE AND OFFSITE PREPAREDNESS)

Under Commission regulations, no operating license for a nuclear power reactor can issue unless the NRC finds that there is reasonable assurance that adequate protective measures both on and off the facility site can and will be taken in the event of a radiological emergency. As a general rule, offsite emergency plans must be developed for a 10-mile zone surrounding the plant (the_ plume exposure pathway emergency 651 f s'l

~

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

l planning zone) and a second zone of approximately 50 miles (the inges-tion pathway emergency planning zone). See 10 C.F.R. Q 50.47 and Part 50, Appendix E.

EMERGENCY PLANS: STATE AND LOCAL GOVERNMENT PLANS (UTILITY PLAN AS SUBSTITUTE)

The NRC is obligated to consider a utility-prepared ofTsite emergency plan submitted in the absence of state and local government-approved plans, and has the ultimate authority to determine whether such a sub-mission is sufficient to meet the prerequisites for the issuance of an operating license. CLI-83-13,17 NRC 741 (1983).

STATE STATUTES: FEDERAL PREEMPTION State law can be preempted in either of two general' ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. If Congress has not entirely displaced state regu.

istion over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. Silkwood v. Kerr-McGee Corp.,464 U.S. 238, 248 (1984).

STATE STATUTES: FEDERAL PREEMPTION The Atomic Energy Act does not displace traditional enforcement of state tort law, including the state's right to authorize punitive damages for radiation injuries. Silkwood. 464 U.S. 238.

STATE STATUTES: FEDERAL PREEMPTION The Atomic Energy Act does not preclude a state from enacting a moratorium on nuclear power plant construction based on economic rather than radiological health and safety considerations. Pacific Gas &

Electric Co. v. State Energy Resources Conservation & Development

('omm'n 461 U.S.190 (1983).

ATOMIC ENERGY ACT: REGULATORY STRUCTURE The Atomic Energy Act establishes a dual regulatory structure for nuclear-powered electric generation. The federal government maintains 652

complete control of the safety and " nuclear" aspects of energy genera-tion; the states exercise their traditional authority over the need for addi-tional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like. Paci/7c Gas & Electric, 461 U.S. at 211-12; Brown v. Kerr-AfcGee Chemical Corp., 767 F.2d 1234,1241 n.4 (7th Cir.1985). There is no bright line dividing the areas of federal and state responsibility and they may at times overlap.

NUCLEAR REGULATORY COMMISSION: HEALTH AND SAFETY RESPONSIBILITIES The Commission is involved in emergency planning pursuant to its health and safetyjurisdiction.

NUCLEAR REGULATORY COMMISSION: HEALTH AND SAFETY RESPONSIBILITIES (SCOPE)

The management of vehicular traffic on' public roads, governmental response to public emergencies (including the implementation of any necessary evacuation), and control over the actions of corporations operating within the state, have nothing to do with radiological health and safety and fall well within the category of activities routinely subject .

to state supervision.

NUCLEAR REGULATORY COMMISSION: HEALTH AND SAFETY RESPONSIBILITIES (SCOPE)

Although the Commission has recognized its own role in emergency planning oversight, it has nonetheless observed that the state and local' governments have the primary responsibility under their constitutional police powers to protect the pubhc. 44 Fed. Reg. 75,167,75,169 (1979).

STATE STATUTES: FEDERAL PREEMPTION State laws that indicate the manner in which a utility may or may not conduct certain nonradiological activities within the state do not invade the federal domain simply because they have a significant effect on nuclear power issues or even foreclose the nuclear option entirely. Such laws are entitled to respect, absent an affirmative showing that Congress intended to supplant them. Silkwood,464 U.S. at 255.

653 I

J;

c a_ __ ___c _ -_

STATE STATUTES: FEDERAL PREEMPTION In deciding if state laws alTecting nuclear power or emergency planning for nuclear power plants are preempted by federal law, all that need be determined is whether there exists a nonsafety rationale for the enact-ment or enforcement of the state laws. See Pacific Gas & Electric, 461

, U.S. at 213, 216.

l STATE STATUTES: FEDERAL PREEMPTION The reservation of exclusive jurisdiction by the federal government over radiological health and safety matters does not necessarily prevent a state from asserting its authority over matters within its own jurisdic-tion merely because its action coincidentally afTects the area subject to federal control. Silkwood. 464 U.S. 238; Pacific Gas & Electric. 461 U.S.

I90. See generally iluron Portland Cement Co. v. City of Detroit, 362 U.S.

440, 447 (1960).

t ATOMIC ENERGY ACT: PREEMPTION The Atomic Energy Act does not expressly require the states to con-struct or authorize nuclear power plants or prohibit the state from decid-ing, as an absolute or conditional matter, not to permit the construction of any further reactors. Pac (/7c Gas and Electric 461 U.S. at 205.

ATOMIC ENERGY ACT: PREEMPTION The Atomic Energy Act does not preempt state laws solely because they coincidentally prevent operation of a completed reactor.

STATE STATUTES: FEDERAL PREEMPTION State law is not preempted in all circumstances where it interferes with the potential exercise of federally licensed activities. See Radio Sta-tion WOW, Inc. v. Johnson,325 U.S.120,129-33 (1945).

EMERGENCY PLANS: STATE AND LOCAL GOVERNMENT PLANS (UTILITY PLAN AS SUBSTITUTE)

The lack of an emergency plan officially sponsored by a state or local government does riot stand as an absolute barrier to the grant of a license. The Commission may consider a utility plan in the absence of a state or local government-sponsored plan.

654 w_ . ~

_-___-:- .n EMERGENCY PLANS: STATE AND LOCAL GOVERNMENT PLANS (UTILITY PLAN AS SUBSTITUTE)

The mere existence of a utility plan is not a sufficient basis for is-suance of a license. The Commission must be able to conclude that the utility plan provides reasonable assurance that the public health and safety will be protected.

EMERGENCY PLANS: STATE AND LOCAL GOVERNMENT PLANS (UTILITY PLAN AS SUBSTITUTE)

Federal law does not override enforcement of certain state statutes that impede or foreclose a utility from presenting' a viable emergency plan to the Commission for review.

. STATUTORY INTERPRETATION: LEGISLATIVE INTENT '

When choosing between alternative constructions of a statute, dis-placement of state laws exercising historic police powers should be avoid-ed unless that was the clear and manifest purpose of Congress. Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (l947), cited with approvalin Florida Lime and <Ivocado Growers, Inc. v. Paul, 373 U.S.132,146 (1963).

STATUTORY INTERPRETATION: LEGISLATIVE INTENT The remarks of individual legislators are often an unreliable gauge of overall legislative intent. In re Surface Afining Regidation Litigation, 627 F.2d 1346,1362 (D.C. Cir.1980).

EMERGENCY PLANS: STATE AND LOCAL GOVERNMENT PLANS (UTILITY PLAN AS SUBSTITUTE)

The 1980 NRC Authorization Act, Pub. L. No.96-295, 94 Stat. 780 (1980), accords a utility at least the opportunity to supplement an other-wise deficient governmental emergency plan. It also appears to foreclose the Commission from mandating a state or local government-sponsored plan as a regulatory requirement for licensing.

655

. , . _ . - . -__-___--_-_-_____--__m

EMERGENCY PLANS: REQUIREMENT FOR PLANT OPERATION Pursuant to 10 C.F.R. 5 50.47(c), an applicant is permitted to show that deficiencies in emergency plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

EMERGENCY PLANS: REQUIREMENT FOR OPERATING LICENSE Section 50.47(a)(1) of 10 C.F.R. requires that there be reasonable assurance that protective measures can and will be taken in the event of a radiological emergency.

EMERGENCY PLANS: EMERGENCY PLANNING ZONES Section 50.47(b)(10) of 10 C.F.R. requires that a range of protective actions be developed for the plume exposure pathway emergency plan- .

ning zone for emergency workers and the public and that guidelines,for the choice of protective actions during an emergency, consistent with federal guidance, are developed and in place.

EMERGENCY PLANS: CONTENT (EVACUATION)

Discrete aspects of an evacuation plan may l$e subjected to adversarial evaluation to determine the efliciency with which an evacuation can be accomplished. See, e.g., Cincinnati Gas & Electric Co. (Wm.11. Zimmer Nuclear Power Station, Unit 1), ALAB-727,17 NRC 760, 770-71 (1983).

EMERGENCY PLANS: CONTENT (EVACUATION)

Commission regulations require the formulation of satisfactory evacu. ,

ation plans as a part of the overall emergency preparedness effort. Id. at 774 n.19.

APPEARANCES James M. Christman, Richmond, Virginia (with whom W. Taylor Reveley, III, Donald P. Irwin, and Kathy E.B. McCleskey, 656 q @

Richmond, Virginia, were on the brien, for the applicant Long Island Lighting Company.

David A. Brownlee, Pittsburgh, Pennsylvania, and Karls J. Letsche, Washington, D.C. (with whom Michael J. Lynch and Kenneth M. Argentieri, Pittsburgh, Pennsylvania, were on the brieD, and

- Eugene R. Kelley, Hauppauge, New York, for the intervenor Suf-folk County, New York.

Fabian G. Palomino, Albany, New York, for the intervenor State of i New York.'

. Stephen B. Latham, Riverhead, New York, for the intervenor Town of Southampton.

Sherwin E. Turk for the Nuclear Regulatory Commission staff.

DECISION .

Before us is the appeal of the applicant Long Island Lighting Company (LILCO) from portions of the Licensing Board's April 17,1985, partial initial de. cision in the emergency planning phase of this operating license proceeding involving the Shoreham nuclear facility.' The Licensing Board resolved many of the outstanding offsite emergency planning issues in LILCO's favor. Significantly, however, it concluded that LILCO lacks the legal authority to implement material features of its ,

proposed emergency response plan. That being so, the Board determined that an emergency plan in conformity with Commission regulations cannot be carried out. As explained in detail below, we aflirm the Board's result in this regard.2 l LBPd5-l2. 21 NRC 644.

2 Appeals from other portions of the partial entual decision were taken by intervenors suffolk County and the state of New York. In response to a motion from the intervenors seeking additional time in which to file bnefs in support of their own appeal. and a separate request trom LILCo that we refer the legal authonty issues directly to the Commission or. in the alternative. sever its appeal for expedited review. we established two bnefing and oral argument schedules. order of May 15.1985 (unpublished).

we treat solely LILCo's appeal in this opinion. The county and state appeals are now being bnered. In

' addition. one contested emergency planning issue (dealing with the adequacy or a proposed relocation

, center) was recently resolved in a separate partial initial decision. LBP-85 31. 22 NRC 410 (1985). Ap.

peals from that decision have been filed and are also at the bnefing stage.

657 i

, - _ .. - -4 * * - -

y. - -- . _ -

I. BACKGROUND Under Commission regulations, no operating license fcr a nuclear power reactor can issue unless the NRC finds that there is reasonable assurance that adequate protective measures both on and off the facility site.can and will be taken in the event of a radiological emergency. As a general rule, offsite emergency plans must be developed for a 10-mile zone surrounding the plant (the plume exposure pathway emergency planning zone) and a second zone of approximately 50 miles (the inges-tion pathway emergency planning zone).3 In the usual case, state or local governments participate in the development and implementation of emergency plans. The Shoreham facility is situated in Suffolk County, New York, and the 10-mile emergency planning zone is either within the county or on the waters of Long Island Sound.' The controversy before us centers around the ramifications of the state and county governmen'ts' refusal to participate in the development and im'plementa-tion of offsite emergency plans for Shoreham.

For a number of years both governments generally supported the con-struction of the Shoreham facility and assisted in the development'of emergency response plans. Things changed in early 1982 when the County began to reappraise its view of the efficacy of an emergency re-sponse plan for Shoreham.5 In due course, the County adopted resolu-tions concluding that no local response plan could adequately protect the health, welfare and safety of Suffolk County residents, and directing that no emergency plan be adopted or implemented. The State has supported the County's position.

On the strength of the determination embodied in its resolutions, the County filed a motion with the Licensing Board to terminate this pro-ceeding. The gist of the County's argument was that the Commission's regulations require the submission of an emergency response plan spon-sored by the local government as a prerequisite to issuance of an operat-ing license. The Board denied the motion.' It concluded that, under Commission regulations and applicable federal statutes, the existence of an emergency plan approved by the local government was not a precon-dition to issuance of an operating license. Rather, an applicant is to be 3See 10 C.F R. 50.47 and Part 50, Appendia E.

• LBP 45-12. 21 NRC at 648.

5A partial hmory of the proceeding. on which we draw. is set out in an appendix to LBP 83 22.17

' NRC 608. 647-54. a/J'd os other grrmats, CLI-83-13,17 NRC 748 (1983L 6/4. at 615.

658

,r

p_ - .. __ _ -u %

accorded an opportunity to demonstrate that there is reasonable assur-ance that adequate protective measures can and will be taken in the event of an emergency despite the local government's refusal to prepare or implement an emergency plan.' The Board found, in this connection, that it was not bound by the County's determination regarding the feasi-bility of developing adequate emergency planning far Shoreham.8 The Licensing Board referred its ruling to us for review,' and we, in turn, referred it to the Commission.I' On review, the Commission ap-proved the Board's analysis of the regulations and applicable statutes and determined that this agency was obligated to consider any plan the applicant might submit." However, it expressly declined to examine at that juncture what it described as " serious issues of federal preemption involved in the current offsite emergency planning controversy."u On May 26,1983, LILCO filed its so-called " transition plan" in which offsite emergency response procedures would be implemented by

. LILCO personnel, federal agencies, or private contractors. The plan does not rely on county or state personnel." Almost 100 contentions directed to the plan were thereupon tendered by the intervenors. Con-tentions 1 10, i.e., those addressed to the applicant's legal authority to implement certain elements of its plan, alleged that LILCO is prohibited

- by state or locallaw from performing key emergency functions (such as directing traffic, activating the emergency sirens, or broadcasting emergency inessages) and that, as a consequence, the plan cannot and will not be implemented as required by Commission regulations.

LILCO filed a motion for summary disposition of these contentions."

All parties agreed that it could be decided without evidentiary hearings.'"

Iid. at 612.

I14 at 637.

' LBP-83 21,17 NRC 593 (1983).

10 order or Apn! 26,1983 (unpubhshed).

13 CLI-83-13,17 NRC 741.

1214 at 743.

OS ee LBP 85-12,21 NRC at 650,895.

H Contenuons 1 10 set out the alleged prohibered actions as follows- (1) guidma tramc; (2) blocking roadways, erectmg barners in roadways. and channelbng trafTic; (3) posting trafric signs on roadways; (4) removing obstructions from pubhc roadways. mcludmg towmg pnvate vehicles; (5) acuvaung serens and darectmg the broadcastmg or emergency broadcast system messages; (6) makmg decisions and recommendauons to the pubhc concermns protective actions; (7) makir4 decisions and recommenda-tions to the pubhc concerning protective scuons for the ingesuon exposure pathway; (8) making deci-sions and recommendanons to the pubhc concermns recovery and reentry; (9) dispensms fuel from tank trucks to automobiles along roadsides; and (10) perforrning access control at the Emergency opera.

hons Center, the relocation centers, and the plume emergency plannmg rone penmeters. See nii at 895.

M Mot on for summary Disposinon of Conten6cns 1 10 (The " Legal Authonty" Issues) (August 6, 1984) (hereafter cited as LILCo Monon).

16 See Tr.13,383 (LILCo),13.831 (the state and the County), and 13.834 fthe stafn.

659 W

The Board nonetheless deferred its consideration of the motion,"

having earlier urged the parties to resolve the issue in court.88 The County, the State, and the Town of Southampton sought a declaratory ruling from a state court that LILCO was prohibited under state law from undertaking the various emergency functions ordinarily performed by state or local ofUcials. In due course, that court issued a decision in which it agreed that private companies such as LILCO 'cannot under New York law perform certain key emergency functions contemplated by its plan. Such functions may be performed only by governmental enti-ties."

LILCO returned to the Licensing Board and renewed its motion for summary disposition of Contentions 1-10. For purposes of the motion, LlLCO accepted the state court's decision as a binding interpretation of state law, It argued basically that the state laws prohibiting it from imple-menting its emergency plan are preempted by the Atomic Energy Act.

In addition, it claimed that, in any event, state or local olTicials would re-spond in case of a genuine emergency. Finally, it asserted that most of the functions that it purportedly cannot perform by reason of New York '

law are not required by NRC regulations.

The Licensing Board rencted all of LILCO's arguments and denied the motion.8 This appeal fontowed. LILCO renews its arguments before us. With some exceptions discussed below, intervenors Suffolk County

. and the State of New York, the Town of Southampton, and the NRC staff support the Board's result.28

" Memorandum and Order of october 22,1984 (unpubhshed).

185,c, e.g.. Tr. 3675: "The Board beheves that these legal contenuons are properly matters to be dis-gesed of by the New York state courts."

" Cuomo e. f.one Islosd Lehrma Co.. Consol. Index No. 84-4615 (N.Y. sup. Ct. February 20. 19856, apprdlJodried (N.Y. App. Div. Apnl 26,.1985).In addition, Ciurens for an Orderiy Energy Pokcy, a pnvate orgamzation supporting operanon of the shoreham plant, brought suis in rederal court to obtain a declaratory ruhng that the county resoluuons are preempted by federallaw. The court concluded, how-ever, that the resolutions were not in connics with federal law and thus were not preempted. Cacrasfor se ondrrfy Energy Polay v. Covery ofSg/ folk. 604 F. supp.1084 (E.D.N.Y.1985), appealdonkered. Nos.

85-7321, etc. (2d Car. Apnl II,1985). This orlamration also sought to intervene in this proceeding but its request was demed as unumety. LBP-83-42,18 NRC 112.a/Td. ALAB-743,18 NRC 387 (1983).

N LBP-85-12. 21 NRC at S95-919.

21 Throughoat most of the litigation, the Co;mty was represented pnneipalty by the law nrm of Kirkpa-trict and Lockhart. The state and County Gled a joint bner supporting the Licensms Board's decision.

Recently, however, the County Execuuve termmated the law Arm's services and assigned the County

- Attorney to represent the County. On July 11. the County Attorney submitted a letter basically restaung its support for the Board's determinat on of the preemption issue. However, the letter indicated that the County Execuuve now supports LILCo's claim that the County will respond m the event of a genume emergency. The County Attorney takes no posinon on the Board's dispositwi of the so-called "immate.

nahty'* issue. See section IV, m/rs. At the hme of oral argument, the asske of the County Executive's authonty to terminate the law Arm's urvices was unresolved, so we perrutted both the law Grm and the Chsef Deputy County Attorney to present argument. The state courts lave now sustamed the County

' Executive's authonty. Prosperf v. Consiss. No. 500l A (N.Y. App. Div. August 13, 1985).~The county

~

~

(Conrinued)

'!z

II. FEDERAL PREEMPTION A central issue on appeal is whether the Atomic Energy Act preempts the enforcement of the laws of the State of New York, insofar as they prohibit LILCO from performing crucial emergency functions. The general principles regarding federal preemption are relatively'straightfor-ward and were recently reasserted and applied in the context of nuclear regulation by the Supreme Court in Silkwood v. Kerr-McGee Corp.,464 U.S. 238 (l984), and Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n. 461 U.S.190 (1983). In Silkwood, the Court observed: -

, fSitate law can be pre empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law fallms within titat field is pre-

, empted., .lf Congress has not entirely d'splaced state regulation over the matter m question. state law is still pre.cmpted to the extent it actually confhcts with federal law, that is, when it is ireposs >le to comply with both state and federal law . . or where the state law stanh as an obstacle to the accomplishment of the full purposes and objecuves of Congress.?! ,

Applying that standard, the Court determined that the Atomic Energy Act does not displace traditional enforcement of state tort law, including the state's right to autherize punitive damages for radiation in. juries. In I

Pacific Gas & Electnc the Court. decided that the Atomic Energy Act does not preclude a state from enacting a moratorium on nuclear power plant construction based on economic rather than radiological health and safety considerations.

LILCO does not challenge the state court's determination that it lacks ,

authority under New York law to perform certain of the emergency func.

tions required by its plan.22 It maintains, instead,- that both of the preemption tests identified in Silkwood preclude the application of state

. law to block the implementation of its emergency plan. Specifically, LILCO contends, first, that the federal government has occupied the entire field of radiological health and safety, except for limited areas ex-pressly reserved to the, states,2* and that regulation of emergency plan-rewtutions rernam in effect, however, and contmue to reflect the ofricial county postion that no emergency plan can adequately protect county residents and shoreham should not receive a hcense to operate at full power. App. Tr. 77.78. 86.

The Town of southampion paracipated in the proceedings before the Licensms Board but before us Gled only a letter outlimns its pomuon. With our permission, the Town was nonetheless accorded an op-portunity to parucipate in oral argument.

1

' 22 464 U.s. at 248.

23 LILCo's Bner supponing hs Pos.. ion on Appeal from the "Parnal inical Decision on Emergency l ~ Planrung" or Apnl 17.1985 Uun. 3;1985) (herearter cited as LILCo Bnen at 5.

, 2* M. at l4.

661 m

up l

l

{,,O

e. ... . .

l l

' ning falls squarely within the preempted field.25 in this regard, LILCO as- l serts that the history of atomic energy legislation demonstrates a con-gressional intent to maintain exclusive federal control over the operation of nuclear plants. In LILCO's view, Congress speaks clearly and unam-biguously when it intends to allow the states to " infringe" on the ficid

. of radiological health and safety.26 Second, LILCO claims that a conflict exists between federal and state law because it is impossible to comply with both,27 and the state law stands as an obstacle to the accomplishment and execution of congres-sional objectives.28 According to LILCO, the state laws <re preempted because they effectively accord the states a " veto" over operating licenses for nuclear power plants.2' '

The Licensing Board concluded, to the contrary, that the federal government does not exclusively occupy the field of nuclear safety inso-far as it relates to offsite emergency planning,38 and that no actual con-flict exists between federal and state law despite the practicalimpediment ,

that state law presents to LILCO's ability to implement its plan.2' The Board believed that preemption of a state's traditional police powers "must be premised on a finding that it was the ' clear and m'anifest pur-pose of Congress' to supersede State law"22 and that LILCO failed to ~

demonstrate that Congress intended to preempt state and locallaws that.

prohibit LILCO's proposed _ activities.28 We agree with the Board's conclusions.24 ' .

A. Federal Exclusivity .

We find that LILCO's thesis that the state laws are preempted because they affect an area exclusively reserved to the federal government cuts

,too wide a swath. As the Supreme Court observed in the Pact /ic Gas a

\ " 25 fd'st 16. ~ -

26(d at t2.

27/d at 36.

281d at 38.

29 /d at 10-11.

38L8P.8512,28 NRC at 90247.

31/d at 908.

32/d at 901, cinne Rke v. Santa Fe Eleveer Corp., 33 l U.s. 2iS. 230 (l94h.

33/d at902.907.

34 LILCO's preemption argurr.ent before us is directed only to state law. LILCO does not assert that the county resolutions are preempted by the Atomic Energy Act and we do not reach that issue. We

- note only that the Licenang Board suggested that the resolutions are preempted. L8P.83 22.17 NRC at 640-41, but the rederal district court concluded to the contrary. CJrtressfor es Order 6r Energy Policy. 604 F.supp.1084.

662

_ m___- -- . _ , . ,m Electric case, the Atomic Energy Act establishes a dual regulatory struc-ture for nuclear-powered electric generation.35 When the statute was originally enacted in 1954, the Atomic Energy Commission (and the NRC as its-successor for regulatory functions) "was given exclusive jurisdiction to licerae the transfer, delivery, receipt, acquisition, posses-sion and use of nuclear materials . . . . Upon these subjects, no role was left for the States."26 Even when the statute was amended in 1959 to give the states some regulatory jurisdiction over radiological materials, the Commission retained its authority with respect to the regulation of the construction and operation of nuclear power plants.d The federal government retained plenary authority in those areas in which the Com-mission's expertise was considered important.28 The states, in contrast, maintained their " traditional responsibility" for determining need, relia-bility, cost and other related state concerns because these are " areas that have been characteristically governed by the States.")' The Court sum-marized this division of responsibility as follows:

[T]he Federal Government rnaintains complete control of the safety and " nuclear" aspects of energy generation; the States exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be hcensed, land use, raternaking, and the like."

1 While there is no bright line dividing the areas of federal and state re-

- sponsibihty, and they may at times overlap, we find that the application of the state laws at issue in this case is within the areas traditionally re-served to the states ,

35 461 U s. at 211-12. section 274fc) of the Act provides that "the Commission shall retain authonty and resconsbility with respect to regulation of - (1) the construction and operation of any production and uuW.auon facihty." 4R U.s C. ( 2021'c)(1) (1982). But section 274(k) provides that "In!othing in this seveon shall be consrued to affect the autnonty of any state or local agency to regulate activities for purprises other than protection asamst radiation hanrds." 42 U.s C. ) 2021(k) (1982). Ahhough sec-tion 274(k) apphes in terms only to the preemptive effect of section 274. the courts have construed it as a reflection of congressional intent to distinguish generally between matters reserved to the federal government and those left to the states. See Brom s. Kerr-McGre Chemest Corp. 767 F.2d 1234.1241 n.4 (7th Cir.1985), cwurg Parvic Gas & Electre 466 U.s. at 210. In addition, section 271 provides that Infothms in this chapter shall be ccrstruce 10 affect the authonty or regulations of any federal.

state or local agency with respect to the recration, sale or transmission or elecinc power pro-duced through the use rt' nuclear factisties lensed by the Commission- Proruird, that this sec-tion shall not be deemed 'o confer upon any Federal, state or local agency any authonty to regu-late, control, or restnct any ctivities of the Commission.

42 U.s C. I 2018 (1982).

A Pacyic Gas & Elecme,463 U.s. at 20"l.

IfId at 208-10. , ,

38 See SdA = cod. 464 U.1 'a Ed.

3' Paevir Cas & Electne. 461 U s. at 205.

1. Id at 212.

\ .

663 m

C

We have no quarrel with the general assertion that the federal govern-ment has exclusive jurisdiction over radiological health and safety mat-ters and that the Commission is involved in emergency planning pur-suant to its health and safety jurisdiction. However, the management of vehicular traffic on public roads, governmental response to public emer-

-gericies (including the implementation of any necessary evacuation),

and control over the actions of corporations operating within the' state, L have nothing to do with radiological health and safety and fall well within the category of activities routinely subject to state supervision. Al-i though the Commission has recognized its own role in emergency plan-ning oversight,' it has nonetheless observed that "the State and local governments _have the primary responsibility under their constitutional

' police powers to protect the public."*'

LILCO acknowledges that the New York statutes at issue were passed .

long ago and for purposes wholly unrelated to nuclear power or emergen-cy planning for nuc! car power plants.42 These laws do not dictate the

, manner in which the Shoreham plant must be operated. Rather, they in-dicate the manner in which the utility may.or may not conduct certain nonradiological activities within the state.*3 i To be sure, the conduct of.such nonradiological activities heavily in-

fluences whether, or to what extent, viable emergency plans can be de-veloped without governmental participation. But, as demonstrated by the Silkwood and Paci/Tc Gas & Electric cases, such laws do not invade the federal domain simply because they have a significant effect on nuclear power issues or even foreclose the nuclear option entirely. As we read the Court's decision in Silkwood, and as the Licensing Board

. found,' state laws of this stripe are entitled to respect, absent an affirma-tive showing that Congress intended to supplant them.** Apart from its reliance on the NRC Authorization Acts as a reflection of specific legisla-tive intent (we discuss this matter in Section II.B of the opinion),

LILCO does not contend that Congress affirmatively announced an in-tention to supplant the type of state laws at issue here.45 -

48 44 Fed Res. 75.!67,75.169 (1979).

42 LgLCo Bnef at 19.

43 The state laws at issue here are thus not, as LILCO suggests. analogous' to a state law fortHddmg emergency core coolms systems. Sec &L at 22-23.

Sawood 464 U.s. at 255.

• 5 We reject LILCo*s suggestion that the rationale of the Parvic Gas A Electric and Sdwood opmeons

' is somehow applicable only to cases involvmg need ror power or tort law. App. Tr. 30-31. In our view.

- the Court reaffirmed the base dchotomy between the regulation of radiation hazards, on the one hand.

and " state regulat on a trodmonetarves, on the other. Psevk Gas A Elrcme. 461 U.s. at 222 (emphasis added).

Our view that application of these state laws does not bring them within the zone reserved exclusively to the federal government is unaf-fected by LILCO's claim that the state and county goverriments are simply using these laws to further their own radiological health and safety objectives." When confronted with a similar assertion in the Pacif-Ic Gas & Electric case, the Court declined to undertake a probing inquiry into the state's "true motive" bu' instead, accepted its " avowed economic purpose" when determini.tv. that the state action fell outside the occupied field of nuclear safety repiation.47 We too need determine only whether there is "a nonsafety rationale"*8 for the enactment or en-forcement of the state laws. Plainly there is. That being so, we may not look behind the state's avowed purpose in enforcing these laws merely because enforcement in' this instance arguably results from an ulterior motive.**

B. Conflict Between Federal and State' Law Our conclusion that the federal enclave established by the Atomic Energy Act does not embrace the state laws at issue in this case does not end the inquiry. Enforcement of those laws may still be fcreclosed if it actually conflicts with the Atomic Energy Act or stands a's an obstacle to f the achievement of congressional purposes or objectives. We turn, now, to a consideration of this issue.

LILCO asserts that New York's laws are preempted because it is im-possible to comply with both state law and NRC regulations, and because state law frustrates the establishment of uniform national emergency planning standards and the improvement of emergency planning.58 The Licensing Board, reviewing this argument, reached the opposite conclu-sion. It determined that there is neither a conflict between the federal

1. LILCo argues that "lainy analys:t that finds the state's ' purpose' in this case to be anythms other than radiologgal health and safety is compictely at odds with the facts." LILCo Bnef at 19.

• 47 461 U.s. at 216. In the Sdwood case, the majority made no inquiry into the state's legislative pur-pose but seemed simply to accept the premise that tort law was a matter ordmanly left to the states. The four dissenung justices, in contrast, would have found the state's action preempted because the purpose behind purutive damage awards is to regulate the safety procedures of nuclear licemees. See Sdkwood.

464 U.s. at 260-62 Oustice Blackmun. with whom Justice Marshalljomed, dissentmg), and d at 274-78 Uustice Powell, with whom Chef Justice Burger and Jusuce Blackmun jomed dissenting).

4s Pacr/lc Cas & EJrctnc,461 U.s. at 213.

4'Our rejection of LILCO's assernon that the state laws fall within the zone reserved exclusvely to the federal government disposes as well ofits claim that the states are foreclosed from taking any action af-recting emergency planning in the absence of an express and precise delegation of authonty from Con-gress. See LILCO Bnef at 12-16. As LILCo recognizes, the ree 4rement of an express and preiise #le-ganon from Congress anses only in those circumstances wht ' exclusive authoney over ths subject t matter would otherwise rest with the federal government. See d ,t 23.

M/d. at 36-42.

665 LU

4 and state law nor an obstacle to the accomplishment of federal objectives simply because state law stands as a practical impediment to LILCO ob-taining a federal license.5( . . _ _

i We agree with the Board's conclusion. As we see it, the operative question is not whether state law stands in the way of LILCO getting its license (plainly it does), but whether Congress was prepared to tolerate a situation in which state action could coincidentally block operation of a nuclear plant. If the answer to that latter question is yes, there is no im-permissible conflict with federal law or any frustration of congressional objectives.

As the Silkwood and Pacific Gas & Electric cases show, the reservation of exclusive jurisdiction by the federal government over radiological health and safety matters does not necessarily prevent a state from as-

setting its authority over matters within its own jurisdiction merely be-cause its action coincidentally alTects the area subject to federal contial.52 The state laws do not conflict with the Atomic Energy Act or frustrate congressional objectives simply because they make it difficult, or even impossible, for LILCO to satisfy the conditions for a license. In Pacific

' Gas d' Electric, the Supreme Court concluded that there was no conflict with the Atomic Energy Act and no frustration of congressional purpose where state law prohibited the construction of nuclear power plants en-tirely. The Court observed that "[t]he elaborate licensing and safety pro-visions and the continued preservation of state regulation in traditional areas belie" the notion that nuclear power is to be accomplished at all costs.55 In'the Court's view, the Atomic Energy Act "does not at any point expressly require the States to construct or authorize nuclear power plants or prohibit the States from deciding, as an absolute or conditional matter, not to permit the construction of any further reac-tors."54 The Court rejected the argument that a ban on construction is preempted because it " regulates construction of nuclear plants;"55 no persuasive reason is offered why the Court's rationale should not permit the states to enforce their laws in areas traditionally under their control

,even if such action bars the operation of a co npleted reactor as well. .

~51 Lgp.8512. 21 NRC at 908-09.

52 See generauy fluron Portkund Coment Co. v. City of Detroit. 362 U.s. 440. 441 (l960) Oocal sur pollu-ten regulation that could require structural changes of ship boilers previously inspected and approved

- by the federal government is not in conflict with federal law despite extensive and comprehensive set or federal controls over ships and shipping; "[tlhe mere possession of a federal license . . does not immu.

nize a ship frons the operation or the normal mcadents or local police power. not constituting a direct regulanon orcommerce").

5346i U.s. at 222.

34 /d. at 205.

, 3514. at 204.

---.+%. ,.

666 i

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

(46,

~

That being so, we cannot find in the terms of the Atomic Energy Act or I its history as interpreted by the Supreme Court any preemption of state laws solely because they coincidentally prevent reactor operation.56 LILCO contends, however, that the congressional intent in the Atomic Energy Act to prevent the states from precluding nuclear power plant operations on emergency planning grounds is revealed by Con-gress' express treatment of emergency planning matters in the 1980

.NRC Authorization Act57 and subsequent authorization acts. By those 1 enactments Congress permitted utilities to submit their own emergency plans when state or local governments refused to do so. LILCO claims that Congress has thereby evinced a specific intent not to allow states to use emergency planning as a me:ns of preventing nuclear plant opera-tion.ss LILCO asserts that the Licensing Board's decision essentially reads the " utility plan" option out of the law.5'It also contends that the Board's decision is in conflict with earlier Commission decisions author-izing LILCO to submit its plan for consideration.** We disagree with LILCO's arguments.

Section 109(a) of the 1980 Authorization Act, which deals with emergency plans, requires that "there' exists a State or local emergency preparedness plan which . . . provides for responding to accidents at the -

facility concerned" but nevertheless permits issuance of an operating license in the absence of an approved state or local plan if"there exists a State, . local, or utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned."'i 5' LILCo points to the supreme Court's decisions in Dourfes v. Seamast products. Isc.,431 U.s. 265 (1977), and Sperry v. Florado. 373 U.s. 379 (1%3), as illustrations ora conniet between state and federal law where the practical alternative to compliance with state law is to forgo a right to engage in federally licensed activines. LILCo Bnef at J7. 42-43. But state taw is not preempted in all circumstances where it interferes with the potential esercise of federally licensed activities. Sec. for example, Aede Starme wow. Inc. v. Jokesos. 326 U.s.120,129 33 (1945) (state not precluded by pnnciples of preemption from ordering the rescission of a contract transfernns radio stauon property on grounds of fraud even bough the transfer had been approved by the Federal Communications Commission and the rescassion

- could result in cancellation of a hcense awarded by the CommismonL Whether state law is preempted

. by an alleged confhet with federal law must he resolved by reference to the partscular statutes at issue in each case. Thus, SJinr~sd and part/fc Gas A Drctric. expressly construing the Atomic Energy Act and analyzing the respectis, roles of the federal government and the staies in the realm of nuclear power regulation, are more pertinent to our inquiry. ~

, 87 Pub.L.No.96-295. { 109,94 Stat. 780 (1980l.'

, 5:LILCo Bnef at 23.

S* 14. at 4-7.

60Id. at 6 9.

61 Language similar to that contamed in the 1980 Act was included in the 1982-83 NRC Authorizatu>n Act, Pub. L. No.97-415 { 5. 96 stat. 2067, 2069 (1983), and the 1984-85 NRC Authonzation Act,

. Pub. L. No.98-553, { 108,98 stat. 2825,2827 (1984). Section 109 of the 1980 Authortration Act is set i out in fbli as an appends to this opmion.

H7

• l l

M eserte(3. h h 3 cA # W d.4 mJPh"L.+as theh.h.D rb kiMY2%.Nsk 5

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

i t

a.

4 i

}

Two things are clear from these provisions. First, the lack of an

{ emergency plan officially sponsored by a state or local government does not stand as an absolute barrier to the grant of a license. The Commis-

.sion ~ m ay consider a utility plan in the absence of a state or local government-sponsored plan. Second, the mere existence of a utility plan

is not a sufficient basis for issuance of a license. The Commission must

! be able to conclude that the utility plan provides reasonable assurance 1 ' that the public health and safety will be protected. -

I But that is about all that is clear from the language of'the Act. Despite congressional awareness that some state or local governments might be i unwilling or unable to participate effectively in emergency planning,

Congress chose not to speak explicitly to the question of whether state actions that are an impediment to implementation of a utility plan

' should be deemed freempted by federal law.

i LILCO ' urges us to conclude that Congress must have intended to override state laws in such circumstances, lest a utility's ability to mount its own plan be foreclosed at the threshold, rendering the utility plan 1 option a nullity.62 While we do not find LILCO's construction of the stat-I

-ute implausible, an alternative reading is more reasonable - namely, j 'that Congress intended only to make clear that a plan sponsored by a .

state or local government was not to be a condition for grant of a license

if the utility could otherwise demonstrate that it had the wherewithal

-(including any necessary authority under the law of its home state) to r . develop a plan that would adequately protect the public' health and safety. When choosing between alternative constructions of a statute, we j- must not work a displacement of state laws exercising historic police

powers "unless that was the clear and manifest purpose of Congress.""

j- No such clear and manifest purpose is demonstrated by the text of the 1980 Authorization Act.

~

Nor does anything in the legisYative history of the.1980 Act calithis

, construction of. the statute into question. Heightened interest in emergency planning arose in the wake of the accident at the Three Mile Island nuclear plant in 1979. Because federal law did not at that time re-quire review of any state or local emergency plans for responding to an accident at a nuclear power plant, the President's Commission on the Accident at Three Mile Island and the General Accounting Office I

1 62LILCo Bner at 4-7.

URice v. Senau fe Elemoor Corp. 331 U.s. at 230. card wn approvalin Morain Lime amt A ratado Grow.

ers. lac. v. Past,373 U.s.132.14 (1%3).

i 1 . _ _ . - -

66s I

i l

ON-

(GAO) independently recommended that an approved state or local emergency plan be a condition oflicensing."

Bills passed by both the House and the Senate directed the Commis-sion to establish standards for state plans and to review the adequacy of each state's plan. But these bills differed as to the effect to be given to the state plans. The Senate bill required Commission approval of state and local plans as a condition for licensing. In adopting this apnroach, the Senate expressly rejected an alternate proposal which would have caf-firmatively preempted state Ltw by giving the Commission authority to prepare an interim emergency plan where a state plan was deficient. The House bill, in contrast, did not direct the Commission to take any action with respect to new or existing licenses if a state plan failed to comply with Commission regulations or was otherwise inadequate. Rather, the Commission was instructed to identify those states without adequate

, plans and to recommend to Congress any additional statutory authority which the Commission deemed necessary to ensure that each state had an adequate plan.

A conference committee declined to adopt either the House or Senate formula. Although it was not prepared to adopt the House view and allow.the operation of nuclear plants in the absence of some emergency plan that ensured adequate protection of the public, it did not require Commission approval of state and local plans as a condition of licensing as the Senate proposed. The conference committee (and, eventually, the Congress) adopted the compromise section 109, The conference com-mittee explained its approach as follows:

The compromise provides that the NRC is to issue an operatmg license for a new utilization facihty only if the State or local plan as it applies to such facility, complies with the NRC's current guidelines for such plans or the new rules when promulgat-ed, except that if a state or local plan does not exist that complies with the guidelines or rules, the compromise provide,that NRC still may issue an operating heense ifit determmes that a State, local or utility plan provides reasonable assurance that

~

M See Reporr of the Pressdent's Commessen on the Accident at Three Mar Island (october I979) at 16 and

" Areas Around Nuclear Facilities should Be Better Prepared for Radiological Emergencies," Report to the Coneress by the Comptroller Generalof the Umred States (March 30. I979) at 35-36. Commissson regu.

lanons in efTect prior to the Three Mile Island accident nonetheless required the development of some plans by the applicant for coping with emergencies, including establishment of an esclusion area and a so-called low population zone (roughly one to two miles) immediately surroundmg a nuclear plant. The exclusion area had to be totally under the applicant's control. There had to be a sufficiently small number of people in the low population zone to assure that steps for their protection (such as evacua.

Ison) could easily be taken in the event of an emergency. Also, the plant had to be designed so that rads-ation dosages at the respective zone perimeters in the event of an accident would not eacced certain levels. See genera #v Merrepolitan Edma Co. (Three Mile Island Nuclear station, Unit No. 2),

ALA8486,8 NRC 9,14, revew deerd. CLI 78-19,8 NRC 295 (1978); Pubac Servec Co. of New // amp.

shar (seabrook stanon, Umts I and 2), ALAB422,6 NRC 33,4244 (1977), aff'd. CLI.781,7 NRC I (1978), g/f'd sub som. New Engload Coakres on Nacirar PotAersos v. NRC, 582 F.2d 87 (1st Cir.1978).

669

_ - 66'

W -- -

- " ., n ' ~ ~ ~ - -

_ _ 3 _

~ ;;_ - 3 t' l

public heahh and safety is not endangered by operation of the facility. The Commis-sion's regulations now require the determination prior to the issuance of an operat-ing hcense that there is reasonable assurance that public health and safety is not en-dangered by operation of the facility, i The conferees sought to avoid penalizing an apphrant for an operating hcense if a i State or locality does not submit an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules. In the absence of a State or local plan that complies with the guidehnes or rules, the compromise per-mits NRC to issue an operating license if it determines that a State, local or utihty plan, sucts as the emergency preparedness plan submitted by the apphcant, provides reasonable assurance that the public health and safety is not endangered by opera-tion of the facility.68 LILCO argues that "the only rational conclusion is that Congress in-tended federal law to preetopt."66 in our judgment, the more reasonable conclusion is that Congress declined to embroil itselfin the preemption

{ thicket at all. Only the Senate had attempted to resolve the preemption question explicitly and, as noted above, it alTirmatively rejected the option of federal intercession where the states are unwilling or unable to l~

plan. Indeed, by requiring the approval of state and local emergency ,

plans as a condition for licensing, it had accorded the states an absolute

• veto over licensing. We refuse to conclude that the compromise should j

now be read as representing a 180 degree reversal of the Senate's earlier position.

l The House had not opted for either solution proposed in the Senate.

i Rather, it had instructed the Commission simply to report back on the i need for further legislation in the event an impasse emerged. This i House provision was included in the compromise ultimately adopted.

That being so, we cannot assume that the House intended that the com-promise serve as a definitive resolution of the preemption issue. In the circumstances, we believe that Congress intended to leave unalTected the law of preemption as it existed under the Atomic Energy Act.57

~ -

' Tliis view ~of Eosiirissloital intent'is fullyionsistent with the Commis-sion's contemporaneous pronouncements on the subject. In July 1979, ~

taking note of the GAO recommendation, the Commission invited j *

~

65 H.It. Itep. No.1070, %th Cong.,2d sess. 27, repriered in 1980 U.s. Code Cong. A Ad. News 2260, 2270-71.

66 LILCo Bnerat 32.

67 LILCo directs our attention to the remarks ofindividual legislators Olepresentatives Lujan. Pasha-yan. Coughlin and Corcoran, and senator simpson) reflecting their view that preempnon was intended.

See id. at 27, 29-31. The remarks ofindmdual legislators are often an unrehable gauge of overall legista-tsve intent. Is te Swface Minise Aetaderies Lawares, 627 F.2d 1346,1362 (D.C. Cir.1930), and, given the compromsse nature of the bill as it eventually emerged, we are unprepared to tonclude trom the re-marks or indiveddal legislators that preemptton was intended.

e

-w-670 r , r , - , , ve , ,, -, , ,, , .n,-nv- ,..~e ,,.n, - ,4 e .,n, -r -r., -

- ,t_ - - -- -

public comment regarding a proposed new regulatory requirement that NRC approval of state and local emergency plans be a condition for is-

.suance of an operating license or continued operation of a nuclear facili-ty.68 In light of the comments received, the Commission issued a Notice of Proposed Rulemaking to require NRC concurrence in state and local response plans as a condition for licensing unless an applicant could demonstrate that deficiencies in the plans were not significant, that alter-native compensating actions have been or will be taken promptly, or that there are other compelling reasons for issuing the license."

In August 1980, the Commission issued new emergency planning regulations which it characterized as consistent with the recently passed 1980 Authorization Act.70 The regulations rejected any requirement that emergency plans sponsored by the state or local government be a condi-tion oflicensing. The Commission did not assert, however, that its regu-

!ations were intended to have preemptive efTect. On the conirary, it recognized that state and local governments were expected to be impor-tant participants in emergency planning and acknowledged that a prob-lem would arise if states declined to participate in emergency planning.

It observed:

The Commission reccanizes there is a possibility that the operation of some reactors may be affected by this rule through inaction of State and local governments or an inability to comp'y with these rules. The Commission believes that the potential re-striction of pitit ope ation by State and local officials is not significantly different in kind or efTect from the means already available under existing law to prohibit reactor operation, such as zoning and land-use laws, (crtification of pubhc convenience and necessity. State financial and rate considerations .and Federal environmental laws. The Commission notes, however, that such considerations generally relate to a one-time decision on siting, whereas thi.+ rule requires a periodic renewal of State and local commitments to emergency preparedness . .The Commission beheves, based on the record created by the public workshops, that State and local ofTicials as partners in this undertaking will endeavor to provide fully for public protection."

More recently, interpreting its new regulations, the Commission reaf-firmed that inaction by a state or local government "could effect a poten-tial restriction on plant operations."72 In ourjudgment, the only sensible conclusion to be drawn from the Commission's pronouncements is that it expected the state and local governments to cooperate in emergency

'844 Fed. Reg.41,483 (1979).

H44 Fed. Reg. 75,167 (1979L 70Sec 45 Fed. Reg. $$,402 (1980L 1' 14. at 5$,404.

72 CossoWated Eduon Co. of New Yort (Indian Point Unit No. 2), CLI.83-16,17 NRC 1006,1010 (198JL i 671

- . - .- = . . - . - - -. -

a planning but recognized that they could use their new emergency plan-ning responsibilities in a manner akin to their traditional power to prohibit reactor operation on nonradiological health and safety grounds.

We disagree with LILCO's assertion that such construction of the stat-ute renders utility plans a nullity,72 although it may well diminish their

+

usefulness as a means of complying with the cimergency planning re-quirements. The legislative compromise, after all, makes clear that utili-ties are not foreclosed at the threshold from obtaining a license merely because the state or local government declines to participate in emergen-cy planning. In other words, the legislation accords a utility at least the opportunity to supplement an otherwise deGcient governmental plan. It

-also appears to foreclose the Commission from mandating a state or local government-sponsored plan as a regulatory requirement for licens-ing. Although LILCO in this instance may have come up against an in-surmountable obstacle despite the legislation (the bill, however, was not

. intended as a guarantee that all utilities would receive licenses), the stat-ute may well have kept open avenues that might otherwise have' been closed.78 LILCO also claims that the Board's decision rejecting its plan conflicts with Commission decisions encouraging the filing and consideration of i ' the plan. In LILCO's view, the Commission would not have authorized it to present a plan to the Board for consideration if it was clear at the 4 outset that an operable plan could not be implemented.

We find no conflict with the Commission's decisions. The decisions i principally relied on by LILCO were rendered in 1983 and 1984 -

1 before the state court's decision and at a time when LILCO's authority under state law to perform its emergency functions was genuinely in doubt.78 At that time the Commission quite properly concluded that the planning issues were not " categorically unresolvable."76 The Commis-sion's June 1985 decision denying a request for an environmental evalu-ation of low power operation, although rendered after the state court had ruled on the state law issues, simply assumed that state and county cooperation would be forthcoming if the Commission ultimately deter-

! mined that an adequate emergency plan is achievable with state and i

3 73See LILCo Bnef at 4-7.

78 For example, in the Indars Pont case, CLI-8316,17 NRC 1006, the utshty's abihty to act en concert mth the state government prevented the shutdown of a plant despite a local county's lack or partgeps.

ten in the ernergency plan-75 4- See CLI 84-9,19 NRC 1323 (1984), and CLI-8317,17 NRC 1032 (1983), cited in LILCo's Sner at 79.

76CLI-83-17,17 NRC at 1034.

J 672 I

I

_-_a- _

.m .

_ _ _ _ , . _ _m county participation.71 As we discuss in Part 111 of this opinion, such as-sumption was not the predicate for the plan under review by the Licens-ing Board, and the Commission expressly declined to address any of the issues before us in this case.78 In sum, we conclude that the most reasonable construction of the iAtomic Energy Act, the NRC Authorization Acts, and the Commis-sion's prior determinations is that LILCO is entitled to submit an emergency plan in the absence of a state or local plan in an effort to demonstrate that the public can be adequately protected. But federal law does not override enforcement of the statutes of the State of New York that impede or foreclose LILCO from presen:ing a viable emergency

, plan to the Commission for review. If the current state of the law frus-trates LILCO by giving the state an eleventh hour veto over operation of the Shoreham reactor, the remedy lies in the legislative arena.

III. REALISM As noted earlier, LILCO did _not rest its case below solely on its preemption argument. It contended as weh that it is entitled to a decision in its favor on Contentions 1-10, even if state law bars it from carrying out the actions specified in those contentions." This is so, according to LILCO, because the state and local governments would respond and take the necessary protective measures in the event of a real emergency that threatened the health and safety of the populace surrounding the plant."

The Licensing Board rejected the claim, finding it flawed in two critical respects. First, according to the Board, LILCO "cannot be delegated the authority to perform the functions enumerated in Contentions 1-10" and therefore could not fully implement the plan by itself.88 Second, and more to the point, any response by the State and County in a real emergency would be on "an uncooperative, uncoordinated, ad hoc basis."*2 LILCO continues to press its " realism" argument before us. Accord-ing to LILCO, the Licensing Board erred in basing its decision on the premise that in the event of a radiological emergency "the state would 77See CLI.85.~12, 21 NRC 1587. cited in LILCo's Reply Bner on the Legal Authonty Confhet or interest. and state Plan Issues Uuly 24,1985) (hereafter cited as LILCO Reply Brien at 2. 4.

78See CLI.8512. 2i NRC at 1589.

" LILCo Monon at 43.

80lbai.

81 Lgp.8512. 21 NRC at 91t.

s2 /d. at 912.

673 1

'A

simply deputize LILCO employees to carry out an emergency plan but do nothing itself."82 LILCO claims that its argument is " simply that the State and County would in fact respond if a real emergency were to occur."84 It is not altogether clear that the Board predicated its decision on the premise suggested by LILCO. Although some portions of the Board's de-

, cision support LILCO's position," there is also language suggesting that the Board had in mind a response involving the direct participation by state and county ofTicials in the implementation of the plan. The Board observed:

Apphcant anticipates the State and County will provide for a planned response, but only after Shoreham begins to operate. LILCO Brief on Contentions 1 10, at 44.

We must base our determinahon on what the proposed plan actually provides and

, whether it currently comphes with the regulatory requirements so that a determina.

tion can be made whether there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. The State and County anirmatively oppose participating in LILCO's Plan. We cannot base a judgment on the adequacy of the Plan on conjecture, as LILCO would have us do.

Although interwnors may wil respond in a plaened manner inwfar as they Jo respond, there is no reasonable assurance of record that the response wdl be on cooperation and coordmatron with App!kant, whoch is what is contemplated for an adequate plan. (See Board Findings on Contention 92 in ( XIII.C.).8' We need not decide whether the Licensing Board misconstrued LILCO's argument, as claimed. Even ifit did, the Board's decision must be upheld. In the first place, assuming, as LILCO would have us do, that the State and County will in good faith respond in the event of a genuine emergency, no state or county response plan has been submitted for review on this record. The best that is currently available is the assur-ance of the County Executive that the County will ful611its responsibility to protect the public in the event of an eme.gency and the assumption that the State would do the same.

In this regard, we have not overlooked the County Executive's recent announcement that the County is prepared to take any necessary action 83LILCo Bnerat 46

• • IJ at 45.

81 The Board at one point stated that LILCo assumed that er the state and County were to partiapate in an emergericy response at shoreham, they would authonte the u:ihty to perrorm the runctions et proposes to carry out in an emergency as enumerated m the subject contentions. The reahsm argument is wholly predi-cared on the state and County authonzing LILCo to act as planned. without such authonistion a the reahsm argument vannhes.

LBP 8512,21 NRC at 911.

se fg, og 912 (emphasis supphedh 674 i &?'

I to protect the public in the event of a genuine emergency and that a test of the LILCO emergency plan, presumably with the oversight of the County Executive, can be conducted.87 It may well be that a new effort by LILCO and the County will in due course result in an adequately coordinated emergency plan. If and when some arrangement between LILCO and the County comes to fruition, it may be submitted for consideration.

Moreover, the Board found that any response by the State and County in the absence ~ of prior planning and rehearsal would be necessarily ad hoc. It is this type of ad hoc response that was found unsatisfactory during the accident at Thr'ee Mile Island and that led to the adoption of the Commission's current emergency planning regulations.88

. On this score, LILCO claims that the " issue of ' coordination' is a l' actual issue not properly raised by the motion for summary disposition of Contentions 1-10."8' We disagree. In the usual licensing proceeding, the question of whether, and to what extent, an emergency plan can and will be successfully implemented does present factual issues for litiga-tion. In the instant case, however, the State and County have thus far refused to participate at all in any preparation or testing of emergency procedures. Even if we assume that the State and County will respond to -

a genuine emergency, we cannot assume that such response will be coor-dinated in advance and rehearsed.

In thi regard, LILCO has failed to make any demonstratio'n that its plan is amenable to ad hoc adoption by the appropriate governmental

• units at the time of an emergency. The inch-thick volume of the transi-tion plan itself, plus two volumes of implementing procedures, each at least two inches thick, and another, three and one half inch volume, labeled " Appendix A - Evacuation Plan," do not lend themselves to quick review and implementation if the State or County is called upon to

, act." The plan establishes more than 50 different position titles and as many separate functions." It is designed to evacuate up to 160,000 resi.

dents from a 160-square mile area that is encompassed within an approx-imately 10-mile radius from the plant.'2 Among the facilities to be evacu-ated are three hospitals, eight majo.r nursing and adult homes, and two correctional facilities.n At other plants, extensive coordination and 87 See ' Letter to Appeal Board from Chief Deputy County Attorney E' gene R. Kelly (July 11.1985L ss See rescretty Duke Powr Co. v. ARC. 770 F.2d 386. 388 (4th Cis. ir.15L e

s' LILCo Bnef at 47

1. Tr. 832 35.1204.

'l See Apphcant En. EP.I. Emergency Response Plan Implementing Procedtires. at 2.1.1.

92 See af. Local Ofrsite Radsologmal Emergency Response Plan. Appendia A - Evacuation Plan. at l-4.

UId. at II.28 to 1130.

675

@5

_ _ _ . . . _ . _ . _ _ . . ~ _ _ _ _ _

___:..___._n___..___..____..~.-}

i rehearsal have been required for such a substantial undertaking. In short, there is simply no reasonable basis for assuming that the State or County could realistically step in at the last moment and execute the LILCO plan.

IV. IMMATERIALITY LILCO contends, finally, that certain of the actions specified in Con-tentions 1-10. - namely those associated with traffic management" -

are not required by Commission regulations and thus are " immaterial" to a determination that adequate protection can and will be provided in the event of an accident. In LILCO's view, an evacuation can be con-ducted even without traffic control; such evacuation would take only about an hour and a half more than under controlled conditions and no

. longer than at other plants; and adequate protection in case of an emergency can be assured as long as accurate time estimates for an evac-uation can be developed and found reliable

• In LILCO's view, the refu-sal of the State or County to allow traffic control simply increases the time estimate for an evacuation which must be taken into account when protective actions are considered (just as a major snowstorm might affect protective action recommendations)."

The Licensing Board acknowledged that no standard time is estab-lished in the regulations for an evacuation ** and that, in any event, tae utility is not obligated to ensure the best possible evacuation." Nonethe-less, the Board noted that 10 C.F.R. 50.47(a)(1) requires that there is

" reasonable assurance that protective measures can and will be taken in the event of a radiological errergency." It also indicated that section 50.47(b)(10) requires that a "rar.ge of protective actions (has been] de-veloped for the plume exposure pathway EPZ for emergency workers

'd we reject LILCo's alternate arguments that its transition plan should be considered an "intenm compensating action" under 10 C.F R. 50.47(c)(ll, or that other factors warrant issuance of an operat.

ing hcense despite the lack of governmental participation in emergency planning. LILCo Bnef at 50-52.

Section 50 47(c)(1) permits an appScant to show that deficiencies in emergency plans "are not signifi-cant for the piarit in quesuson, that adequate ictenm compensating actions have been or will be taken promptly, or that there are other compelhng reasons to permit plant opershon." in the matant case, matenal features of the LILCo uansmon plan cannot be carned out and the pitbbc's safety cannot be ad-equately assured. LILCO has also failed to demonstrate that compensating actions can or will be taken or that compelling reasons exist to permit plant operation.

" Contentions 1-4. 9. and 10. See note 14, supra.

I

• LILCo Bnef at 48-50.

l M14. at $0.

's LBP-8512,21 NRC at 917.

H IJ. at 918.

676

-~

d a

I and the public" and that "[gluidelines for the choice of protective ac-tions during an emergency, consistent with Federal guidance, are devel-oped and in place,"la It concluded that an unplanned evacuation restricts the range of available options and cannot meet these regulatory require-ments.58' We believe that the Board properly rejected LILCO's " immateriality" aigument, We recognize that the Commission's regulations do not spell out the precise manner in which an evacuation is to be conducted if

.. necessary. Nonetheless, the Commission has construed its emergency planning regulations to require " provisions for evacuating the public in '

times of radiological emergencies."182 We have likewise observed that the Commission's emergency planning scheme contemplates that

. emergency evacuation procedures be developed for the 10-mile area sur-rounding a nuclear plant.53 As We statd in our Zimmer opinion, Commission regulations plainly require the formulation of satisfactory evacuation plans as a part of the overall emergency preparedness efTort. Moreover, at least if ad-equately developed, those plans should aid materially the making of an informed judgment respecting which available protective measures are most suitable in the

., totahty of the circumstances attending the specific emergency at hand.M' ~

1 .

LILCO included trame control as part ofits proposed evacuation proce-j dures in light of such requirements. We believe that such inclusion v'as proper, In the context of this case, at least, something more is needed

. than an aspiration that the public will be able to fend for itself in the event an evacuation is required.ia5 V. OTHER ISSUES l LILCO's appeal challenges certain other of the Licensing Board's sub-l sidiary determinations.'" Such challenges principally attack the Board's l#Id. at 916.

103 /d at 917.

, 102 46 Fed. Reg. I1,288, Il.289 (1981) (emphams added).

303 See The Derrott Eduon Co. (Ennco Ferms Atomic Power Plant. Umt 21. AL/ 't.730,17 NRC 10$7,

, 1069 'tI2 (1983). Descrete aspects of an evacuauon plan may be subjected to adversarial evaluation to determine the efficiency with which an evacuauon can be accomphshed. See, e.g. Cinc#nserf Gas A Dre.

rne Co. (Wm. II. Zimmer Nuclear Power stauon, Unit I), ALAB.727,17 NRC 760,770 71 (1983).

M' /d at 774 n.19.

MS We ofrer no views as to whether every item subject to Contenuons 14,9, and 10 must be considered matenal tc a proper emergency plan. We note, ror example, that I.Il Co indicated at oral argument that a newly revised emergency plan ehminates trailblater signs which were the subrect of Contention J. See App. Tr. 37, 106 LILCO claims, for example, that, in response to Contenuon ll, the Board erroneously concluded j i that LILCo employees would be insufreciently independent of management to permit them to recom-s (Connnwdl i

a -._ - - + .

j 677 L

1 I

, _ . ._ - - . _ - , .-_.__-_m._,m- -

Qn.

application of the Commission's regulations to the special facts of this case, but involve as well some disagreement over the conclusions the Board drew from the evidence of record. Although LILCO was obliged to raise these mat ers as part of its appeal from the Board's decision, they appear to bear on the viability of the plan itself, rather than LILCO's authority to implement it, and are more amenable to disposi-tion in connection with the matters likely to be raised by the State and County.'" Moreover, given our conclusions with respect to LILCO's principal arguments, resolution of LILCO's remaining claims does not alTect our ultimate disposition of the emergency planning phase of the case. Thus, in view of the outcome here and our desire to expedite reso-lution of this phase of the case, we will defer our consideration of LLLCO's remaining arguments until disposition of the appeals filed by th'e Cot,nty and the State.

The Licensing Board's conclusions in LBP-85-12 concerning LILCO's legal authority to implement material features of its emergency plan are affirmed.

It is so ORDERED.

FOR TIIE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board APPENDIX 1980 NRC Authorization Act SEC.109. (a) Funds authorized to be appropriated pursuant to this Act may be used by the Nuclear Regulatory Commission to conduct pro-mend appropriate protectise action. LILCo Bner at 53-65. LILCo also mamtams that. in connection with Contention 92. the Board improperly found that the lack of participanon by the state constitutes an irremediable deficiency. M at 66-70.

8" For example, counsel for the County noted that it planned to challenge the Board's conclusion that four functions normally performed by the sute are within LILCo*s capability to perform. App. Tr.

72 73. staff counsel indsated that the Board's ruhng regardmg the alleged conniet ofinterest was wrong both as a matter of construction of the Commission's regulanons and as a matter of fact. App. Tr.

108 09. Li'.Co asserted that the quesuon of coordmation with the state raised by Contention 92 is dealt with as well under Contennons 8!,85 and 88. LILCo Reply Bnef at 5 n.4.

618

ceedings, and take other actions, with respect to the issuance of an operating license for a utilization facility only if the Commission deter-mines that -

(1) there exists a State or local emergency preparedness plan

- which -

(A) provides for responding to accidents at the facility concerned, and (B) as it applies to the facility concerned only, complies with the Commission's guidelines for such plans, or (2) in the absence of a plan which satisfies the requirements of paragraph (1), there exists a State, local, or utility plan which pro-vides reasonable assurance that public health and safety is not en-dangered by operation of the facility concerned. . . .

(bf Of the amounts authorized to be appropriated under section 101(a), such sums as may be necessary shall be used by the Nuclear Regulatory Commission to -

(1) establish by rule -

(A) standards for State radiological emergency response plans, developed in consultation with the' Director of the Federal Emergency Management Agency, and other ap-propriate agencies, which provide for the response to a radi-ological emergency involving any utilization facility, (B) a requirement that -

(i) the Commission will issue operating licenses for utilization facilities only if the Commission deter-mines that -

(I) there exists a State or local radiological emergency response plan which provides for responding to any radiological emergency at the facility concerned and which complies with the Commission's standards for such plans under subparagraph ( A), or (II) in the absence of a plan which satisfies the requirements of subclause (1), there exists a State, local, or utility plan which pro-vides reasonable assurance that public health and safety is not endangered by operation of the facility concerned, and

-(ii) any determination by the Commission under subclause (1) may be made only in consultation with the Director of the Federal Emergency Management Agency and other appropriate agencies, and 679

. _ M

l l

(C) a mechanism to encourage and assist States to comply as expeditiously as practicable with the standards promulgated under subparagraph (A) of this paragraph.

e (2) review all plans and other preparations respecting such an emergency which have been made by each State in which there is located a utilization facility or in which construction of such a facility has been commenced and by each State which may be af-fected (as determined by the Commission) by any such emergency, ,

(3) assess the adequacy of the plans and other preparativas reviewed under paragraph (2) and the ability of the States in-volved to carry out emergency evacuations during an emergency referred to in paragraph (1) and submit a report of such assess-ment to the appropriate committees of the Congress within 6 months of the date of the enactment of this Act, (4) identify which, if any, of the States described in paragraph .

(2) do not have adequate plans and preparations for such an emergency and notify the Governor and other appropriate authori-ties in each such State of the respects in which such plans and preparations, if any, do not conform to the guidelines promulgated under paragraph (1), and (5) submit a report to Congress containing (A) the results of its actions under the preceding paragraphs and (B) its recommen-dations respecting any additional Federal statutory authority which the Commission deems necessary to provide that adequate plans and preparations for such radiological emergencies are in effect for each State described in paragraph (2).

(c) In carrying out its review and assessment under subsection (b)(2) and (3) and in submitting its report under subsection (b)(S), the Com-mission shall include a review and assessment, with respect to each utili-zation facility and each site for which a construction permit has been issued for such a facility, of the emergency response capability of State and local authorities and of the owner or operator (or proposed owner or operator) of such facility. Such review and assessment shall include a determination by the Commission of the maximum zone in the vicinity of each such facility for which evacuation of individuals is feasible at various different times corresponding to the representative warning times for various dilTerent types of accidents.

~ ,

680 b{C

Cite as 22 NRC 681 (1985) ALA8 819 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Christine N. Kohl, Chairman Gar / J. Edles Dr. Reginald L Gotchy In the Matter of Docket Nos. 50 352 OL 50 353 OL

/

PHILADELPHIA ELECTRIC COMPANY '*

, (Limerick Generating Station, Units 1 and 2) October 22,19J5 The Appeal Board affirms the second partial initial decision rendered by the Licensing Board in this operating license proceeding, LBP-84-31, 20 NRC 446 (1984), with the exception of a matter relating to onsite emergency plan medical arrangements, which is remanded to the Licens-ing Board for further action.

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

In passing upon the admissibility of a contention, the proper inquiry is not whether the contention will ultimately be proven on the merits, but whether the basis and specificity requirements of 10 C.F.R. { 2.714(b) have been met. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 546-49 & n.10 (1980).

681 t

~. .. - -- - --- - Y'

RULES OF PRACTICE: CO31311SSION POLICY STATE 31ENTS (EFFECT)

The Commission policy in effect at the time an adjudicatory decision is rendered governs that decision. See Potomac Electric Power Co. (Doug-las Point Nuclear Generating Station, Units I and 2), ALAB-218, 8 AEC 79,82-83 (1974).

NUCLEAR REGULATORY CO313tISSION: AUTIIORITY The Commission can limit adjudicato'ry hearings to issues that it con-siders material to its licensing decision. Union of Concerned Scientists v.

NRC, 735 F.2d 1437,1444 51 (D.C. Cir.1984), cert. denied. _ U.S.

105 S. Ct. 815 (1985); Siegel v. AEC, 400 F.2d 778. 783-85 (D.C.

Cir.1968).

NUCLEAR REG'ULATORY CO31311SSION: POLICY STATE 31ENT ON SEVERE ACCIDENTS Severe accident mitigation measures, beyond any already existing Commission requirements, are not to be " addressed in case related safety hearings." 50 Fed. Reg. 32,138,32,145 (1985).

NEPA: REQUIRE 31ENTS The National Environmental Policy Act of 1969 (NEPA),42 U.S.C.

{ 4321, could not loFically require more than the safety provisions of the Atomic Energy Act; further, these statutes, and the issues raised under each, are inherently interrelated. See Public Service Electric and Gas Co.

(flope Creek Generating Station, Units I and 2), ALAD-518, 9 NRC 14, 39 (1979); C.'ti: ens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1299-1300 (D.C. Cir,1975).

NEPA: ENVIRON 31 ENTAL lalPACT STATEStENT (SEVERE ACCIDENTS)

NEPA does not require the Commission to consider low probability, severe (beyond design basis) accidents at nuclear facilities. See San Luis Obispo Mothersfor Peace v. NRC,751 F.2d 1287,1301 (D.C. Cir.1984),

vacated in part ard reh'g en banc granted on other grounds,160 F.2d 1320 (1985).

682

_. . g

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

., NUCLEAR REGULATORY CO313tlSSION: POLICY STATE 31ENT ON SEVERE ACCIDENTS The Commission's recently adopted Severe Accident Policy Statement requires the issue of sabotage to be analyzed "to the extent practicable" in the design and operating procedures for new nuclear plants. Existing plants, however, need only conform to the Commission's current regula-tory requirements 50 Fed. Reg. at 32,141,32,144-45.

SECURITY PLANS: LICENSE REQUIRE 31ENT All nuclear plants are required to have a detailed security plan to pro-tect against external and internal sabotage. See 10 C.F.R. Part 73. The adequacy of such plans are subject to litigation in licensing hearings. Sec.

, e.g., Pactfc Gas and E!cetric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-653, printed as an Attachment to CLI-8219,16 NRC 53 (1982).

APPEAL BOARDS: SCOPE OF REVIEW Generally, an appeal board will not entertain an issue raised for the first time on appeal. Tennessee Valley Authority (llartsville Nuclear' Plant, Units I A,2A, IB, and 28), ALAB 463,7 NRC 341,348 (1978).

NUCLEAR REGULATORY CO31311SSION:

RESPONSIBILITIES UNDER NEPA The Council on Environmental Quality regulation requiring a worst-case analysis (40 C.F.R. s 1502.22) is substantive, rather than procedur-al; hence, the Commission - as an independent regulatory agency -

does not consider itself legally bound by it. 49 Fed. Reg. 9352, 9356-58 (l984). See Baltimore Gas and Electric Co. v. Natural Resources Defense Council. Inc.,462 U.S. 87,99 n.12 (1983).

APPEAL BOARDS: AUTliORITY (RELATION TO CO31311SSION)

An appeal board cannot give binding effect to another agency's regula-tion explicitly eschewed by the Commission itself.

683

a. _ . _ _ . _ _ . _ _ _ . _ . . . . _ ._ __ _ __. .. _ n n _

s NEPA: ENVIRON 31 ENTAL 151 PACT STATE 31ENT The Commission does not have any duty under NEPA to address

"' remote and highly speculative consequences'" in its environmental impact statements. See San Luis Obispo Mothers for Peace, 751 F.2d at 1300 and cases cited.

NEPA: ENVIRON >lENTAL I.\lPACT STATE >lENTS Under NRC regulations and court precedent, a facility's Final Envi-

,ronmental Statement can be amended by the adjudicatory hearing record and subsequent Licensing Board decision. See 10 C.F.R.

j 51.52(b)(3) (1984); 10 C.F.R. j 51.102 (1985); New England Coalition on Nuclear Pollution v. NRC 582 F.2d 87,93 94 (1st Cir.1978); Citizens

- for Safe Power,524 F.2d at 1294 n.5.

RULES OF PRACTICE: CONTENTIONS A party is bound by the literal terms ofits own contention.

REGULATORY GUIDES: APPLICATION Various NRC documents (such as the NUREGs that elaborate on the generalized regulatory requirements of 10 C.F.R. Part 50) simply serve as guidance for the stafi's review and do not prescribe regulatory require-ments. Metropolitan Edison Co. (Three blile Island Nuclear Station, Unit No.1) ALAB-698,16 NRC 1290,1298-99 (1982), rev'd in part on other grounds, CLI-83 22,18 NRC 299 (1983).

E31ERGENCY PLANS: CONTENT (SUFFICIENCY)

The Commission relics on predictive Ondings of rdequacy in the emergency planning Geld more so than in other areas. The emergency plan itself need not even be Gnal, so long as it is sufHciently developed to permit a board to make the necessary " reasonable assurance" finding.

Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1103 04 (1983).

E31ERGENCY PLANS: CONTENT (SUFFICIENCY)

Post hearing appraisal of an applicant's emergency facilities by the ,

NRC staff is appropriate, if its emergency plan is developed enough to warrant a licensing board Onding of adequacy, 684 l

l 1

- I

ESIERGENCY PLANS: CONTENT (ARRANGE >lENTS FOR SIEDICAL SERVICES)

~

Emergency plans must provide arrangements for medical services for

" contaminated injured individuals." See 10 C.F.R. 6 50.47(b)(12), and Part 50 Appendix E, j IV.E.

E31ERGENCY PLANS: CONTENT (ARRANGE 31ENTS FOR SIEDICAL SERVICES)

The medical arrangements for contaminated injured indisiduals re-qu: red by 10 C.F.R. s 50.47(b)(12) should include local and backup hospital and medical services having the capability for evaluation of radi- i ation exposure and uptake, including assurance that persons providing  ;

these services are adequately prep red to handle contaminated individu-als. NUREG-0654, Rev.1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants' (November 1980) at 69 (Planning Standard L.1). See Southern California Edison Co. (San Onofre Nuclear Generating

- Station, Units 2 and 3), CLI-8310,17 NRC 528,535 n.9 (1983), rev'd .

In part on other grounds, GUitRD v. NRC, 753 F.2d ll44 (D.C. Cir.

1985).

E31ERGENCY PLANNING: BASIS FOR REQUIRE > LENT The Commission's emergency planning regulations are premised on the assumption that a serious accident might occur and that evacuation of the emergency planning zone might well be necessary. See Id. at 533.

As a corollary, a possible deficiency in an emergency plan cannot proper-ly be disregarded because of the low probability that action pursuant to the plan will ever be necessary.

EalERGENCY PLANS: CONTENT (ARRANGE 31ENTS FOR alEDICAL SERVICES)

The requirement that emergency response plans include "laltrange-ments . . . for medical services for contaminated injured individuals" (10 C.F.R. { 50.47(b)(12)) is not satisfied by a simple list of existing treatment facilities. GU<f RD,753 F.2d 1144.

t

685 i

a

\

~

l l

E31ERGENCY PLANS: CONTENT (SUFFICIENCY)

"Prudency" is the proper standard by which to measure emergency provisions. See San Onofre, CLI 83-10,17 NRC at 533.

E>tERGENCY PLANS: CONTENT (SUFFICIENCY)

The Commission's emergency planning regulations do not require

" extraordinary measures." GUARD,753 F.2d at 1150 n.7.

ESIERGENCY PLANS: CONTENT (SUFFICIENCY)

Under 10 C.F.R. { 50.47(c)(1), failure to satisfy the emergency plan-ning str.ndards in section 50.47(b) "may result in the Commissionfs) declining to issue an operating license" unless it is demonstrated "that deficiencies in the plans are net significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant '

operation."

1 -

EVIDENCE: EXPERT TESTINIONY An expert witness may testify about analyses performed by other ex-perts. See IViscons/n Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78,5 AEC 319,332 (1972).

EVIDENCE: ilEARSAY llearsay evidence is generally admissible in administrative proceed-ings, providing its reliability can be determined - usually through ques-l tioning of the witness giving the hearsay. /d. at 332 33. See Duke Power Co. (William B. McGuire Nuclear Station, Units I and 2), ALAB 669, 15 NRC 453,477 (1982).

APPEAL BOARDS: SCOPE OF REVIEW lt is well settled that an appellate tribunal must judge appeals on the basis of the record developed at the hearing below. Puerto Rico Electric Power Authority (North Coast Nuclear Plant Unit 1), ALAB 648,14 NRC 34,36 (1981).

4 686 l

l I m ['

EVIDENCE: EXPERT TESTI.\lONY Expert testimony is typically a mixture of scientific principles (known to the expert through his or her training and experience), data derived from analyses or by perception, and the expert's opinions based on these principles and data. See Fed. R. Evid. 702; AfcGuire.15 NRC at 475.

RULES OF PRACTICE: BURDEN OF PROOF The standard of proof that an applicant must meet in a licensing pro-ceeding is a preponderance of the evidence. See Commonwealth Edison Co. (Zion Station, Units I and 2), ALAB-616,12 NRC 419,421 (1980).

ADJUDICATORY BOARDS: DISQUALIFICATION (STANDARD)

Disqualifying bias is not shown by unfavorable rulings, or by a judge's occasional use of strong language toward a party or the expression of his or her views on pending matters. Aferropolitan Edison Co. (Three Mile Island Nuclear Station, Unit I), ~CLI 85 5, 21 NRC 566, 569 (1985),

affd sub nom. Three Afile Island Alert, Inc. v. NRC, 771 F.2d 120 (3d Cir.

1985). Disqualifying bias must stem from an extrajudicial source - that is, it must be based on something other than what the adjudicator has learned from participating in the case. flouston Lighting and Power Co.

(South Texas Project, Units 1 & 2), CLI 82 9,15 NRC 1363,1365 (1982).

NEPA: NRC RESPONSIBILITIES NEPA requires the NRC to take a "hard look" at the environmental issues posed by a particular project. See Natural Resources Defense Coun-cil. Inc. v. Aforton,458 F.2d 827,838 (D.C. Cir.1972).

QUALITY ASSURANCE / QUALITY CONTROL:

REQUIRE.\lENTS The NRC requires an applicant to have a quality assurance program to ensure that a plant and its parts are designed and constructed or fabricat-ed in accordance with acceptable standards. The necessary elements of a quality assurance program are set forth in 18 criteria specified in 10 C.F.R. Part 50, Appendix B.

687 l

j

RULES OF PRACTICE: CONTENTIONS (AD3ilSSIBILITY) l In order for a contention to be admissible, the bases for it must be set forth with reasonable specificity.10 C.F.R. f 2.714(b).

1 RULES OF PRACTICE: CONTENTIONS (AD311SSIBILITY)

Discrete welding deliciencies identified in a few NRC inspection

reports do not provide enough of a bases to support a contention alleging a complete breakdown in an applicant's quality assurance program. See generally Louisiana Power & Lt.eht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812,22 NRC 5,16 44 (1985).

RULES OF PRACTICE: CONTENTIONS (AD311SSIBILITY)

The conditional admission of any contention is unauthorized under the Commission's rules. Duke Power Co. (Catawba Nuclear Station, .

Units I and 2), ALAB-687,16 NRC 460,467 (1982).

i RULES OF PRACTICE: NONTINtELY SUB311SSION OF CONTENTIONS The admission of late filed contentions is to be determined by balanc-ing the five factors in 10 C.F.R. l 2.714(a)(1). Duac Power Co. (Catawba Nuclear Station, Units I and 2), CLI 83-19,17 NRC 1041,1045 (1983).

RULES OF PRACTICE: C,0NTENTIONS (AD3IISSIBILITY)

Staff documents, if relevant and specific enough, can be relied on to support a contention. Cf Waterford. ALAB-812, 22 NRC at 14,17 &

n.7.

ADJUDICATORY BOARDS: DISQUALIFICATION (STANDARD)

Inadvertent and possibly inaccurate statements do not establish bias I on the part of an adjudicator.

i LICENSING BOARDS: AUTIIORITY TO REGULATE 1 PROCEEDINGS The Commission's Rules of Practice provide licensing boards with considerable flexibility to regulate the course of a hearing and designate 688

--__-_-.-__.---------.a--.%--

the order of procedure.10 C.F.R. s}f2.718(e), 2.731. See Me 'ropolitan Edison Co. (Three Mile Island Nuclear Station, Unit I), ALAE-772,19 NRC i193,1245-46 (1984), rev'd in parr'on other grounds, CLI 85 2, 21 NRC 282 (1985). Although the rules ;et forth a general schedu'e for the filing of proposed findings, licensing boards are authorized to alter that schedule or to dispense with it entirely. See 10 C.F.R. l 2.754(el.

LICENSING BOARD: RESPONSIBILITIES Under 10 C.F.R. f 2.760(c) of the Commission's Rules of Practice, a licensing board is required to put its initial decision and the reasons or bases for the supportitig findings, conclusions, and rulings in writing.

While the decision rnay include transcript references to oral rulings made from the bench in explanar4on of the decision, this method of deci-sionmaking in complicated NRC licensing hearings is counterprcductive to meaningful appellate review and should be avoided.

ATOMIC ENERGY ACT: SAFETY FINDINGS -

, Neither the Atomic Energy Act of 1954, as amended, nor the Com-mission's implementing regulations mandate a demonstration of error-free construction. What they require is simply a finding of reasonable assurance that, as built, the facility can and will be operated without en-dangering the public hesita and safety. 42 U.S.C. (( 2133(d), 2232(a);

10 C.F.R. ( 50.57(a)(3)(i); Union Electric Co. (Callaway Plant Unit I),

ALAB 740,18 NRC 343, 346 (1983). The requisite reasonable assur-ance exists if all ascertained constructirsn errors have been corrected, and there is no showing of a pervasive breakdown in quality assurance so as to reise serious doubt about the overall safety of the plant. Ibid.

RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES The fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations. Statement of Policy on Conduct of Licensing Prod'edings, CLI 818,13 NRC 452,454 (1981).

EVIDENCE: EXPERT TESTIMONY A witness is qualified as an expert by knowledge, skill, experience, training, or education. Fed. R. Evid. 702. See McGuire,15 NRC at 475.

689

1 EVIDENCE: EXPERT TESTI510NY Technical testimony on matters such as pipeline location or accidents requires an expert witness who can be examined on the reliability of the

, factual assertions and soundness of the scientine opinions offered.

AlcGuire,15 NRC at 477.

EVIDENCE: EXPERT TESTlalONY Where an asserted expert witness can supply no scientiGe basis for his statements (other than his belief) and disparages his own testimony, a licensing board would be remiss in giving such testimony any weight whatsoever.

TECilNICAL CALCULATIONS: CONSERVATISSI The use of conservatism and margin for error in making technical cal-

• culations is necessary and desirable, but must be footed to some extent in reasonable, scientine ground. Conservatism upon conservatism can distort technical data to the point where the mechanism at issue is no longer meaningfully described.

REGULATORY GUIDES: APPLICATION Regulatory guides and the like do not prescribe regulatory require-ments. In general, they are treated simply as evidence of legitimate means for complying with regulatory requirements and the staff is re.

quired to demonstrate the validity of its guidance if it is called into ques-tion during the course oflitigation. TJft l Restart. ALAB 698,16 NRC at 1299.

LICENSING BOARDS: RESPONSIBILITIES A licensing Board's function is to oversee the parties' development of the record on contested issues and to issue an initial decision containing the board's findings of fact and conclusions of law on the matters in con-troversy. See 10 C.F.R. (( 2.718, 2.760, 2.760a. This does not mean that a board must stand mute during the hearing and ignore deGeiencies in the testimony. It must satisfy itself that the conclusions expressed by expert witnesses on signincant safety or environmental questions have a solid foundation. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB 663,14 NRC 1140,1156 (1981),

rerlew declined. CLI 8210,15 NRC 1377 (1982).

l 690 l

l l

1

( ' ' e.

. . . . . _.= :. _ : .2 _ _ . - - . - . . _ - 2.-~.._..__.. - ~ . - . . . - .

l J

t OPERATING LICENSE IIEARING: RESPONSIRILITY OF LICENSING HOARD Reasonable assurance that the plant will be operated safely and that t public health, eafety, and environmental concerns will be adequately pro-tected is the standard by which a licensing board is to measure an appti-cation; a risk free environment is not required. Carstens v. NRC, 742 F.2d 1546,1557 (D.C. Cir.1984), cert denied. _ U.S. 86 L. Ed. 2d 694 (1985). .

NEPA: SITE REVIEW Alternative site issues can be raised oftly at the construction permit stage and not in connection with an operating license. See 10 C.F.R.

s} St.106(c), (d).

TECIINICAL ISSUES DISCUSSED:

Severe Accident Mitigation . ,

Probabilistic Risk Assessment (PRA)

Sabotage / Security Plan Worst Case Risk Analysis Socioeconomic Impacts ,

Onsite Emergency Plan , .

Emergency Operation Facilities Technical Support Center ,

Operations Support Center

• Aircraft Carburetor icing Quality Assurance ,

Pipeline Rupture Overpressure Calculations i Structural Integrity.

i i l.

APPEARANCES Charles W. Elliott, Easton, Pennsylvania, for intervenor Limerick Ecol-ogy Act.bn, Inc.

Frank R. Romano, Ambler, Pennsylva iia, for intervenor Air and Water Po;lution Patrol.

i 691 b, 4

0

/

. _v ..

. . _ - . - _ . .. _ _.-~ _ m.. _ _ -

y -___.

d i

1 Robert L. Anthony, Moylan, Pennsylvania, intervenor pro se and for in-tervenor Friends of the Earth.

l ,

l t

! Mark J. Wetterhahn, Washington, D.C. (with whom Troy H. Conner, Jr., and Robert M. Rader. Washington, D.C., were on the brie 0, for applicant Philadelphia Electric Company.

Benjamin H. Vosler (with whom Ann P. Hodsdon was on the bric0 for the Nuclear Regulatory Commission stalT.  ;

DECISION i

Intervenors Limerick Ecology Action, Inc. (LEA), Air and Water Pol-lution Patrol (AWPP),, and Robert L. Anthony / Friends of the Earth (Anthony / FOE) each appeal from the Licensing Board's 1984 second partial initial decision (LBP 84 31, 20 NRC 446) and related orders en-tered in this operating license proceeding. In those decisions and orders, .

L the Board resolved numerous technical, environmental, and onsite i emergency planning issues in favor of applicant Philadelphia Electric Company (PECo) and authorized the issuance of a low-power license  !

for the Limerick facility.' The pending appeals challenge the Licensing  !

, Board's ruling 3 in a total of nine different areas. PECo and the NRC .t staff oppose the appeats. For the reasons set forth below, we afrirm LBP-84 31 and related orders in all respects except one. Insofar as the medical arrangements in PECo's onsite emergency plan are concerned, we reverse and remand for further action.2 I. LEA'S APPEAL All but two of LEA's arguments concern the adequacy of the environ-mental review in connection with PECo's operating license application.

~

LEA contends that the Licensing Board improperly excluded considera-tion of design alternatives to mitigate severe accidents, the risk of sabo- '

tage, and certain socioeconomic impacts. It also argues that the consider-ation of human health impacts was inadequate. In its remaining argu-I we denied requests to stay stus decmon in ALAB.789. 20 NRC 144)(1984).

2 In an earlier phase or this case, we reviewed end ultimately affirmed the Licensms Board's deciuons concernmg the environmental impacts or the supplementary cooling water system ror Limerick. See ALAB.785. 20 NRC 844 (1984); ALAB.804. 28 NRC 587 (1985).

692

ments, LEA contends that PECo's onsite emergency plan violates Com-mission regulations, the Atomic Energy Act, and the Administrative Procedure Act (APA) in certain respects. We address each point in turn.

A. Severe Accident Mitigation Design Alternatives in its contention DES-5, LEA claimed that the Nat;,a.at inu.wimen-tal Policy Act of 1969 (NEPA), 42 U.S.C. l 4321, and pertinent Com-mission regulations require consideration of design alternatives for the mitigation of severe accidents at Limerick. Because the plant is located in an area of relatively high population density, LEA asserted that such an accident would thus pose greater risk to the public. LEA cited NRC staff-sponsored studies, in which the cost-effectiveness of possible mitigating design features is under examination, as the bases for its con-tention. See LEA Contentions on the Environmental Assessment of Severe Accidents (February 13,1984) [hereafter, " LEA DES Conten-tions"] at 11-13.

The Licensing Board, however, refused to admit the contention be-cause it did not satisfy the Commission's requirements of basis and spec-ificity. See 10 C.F.R. f 2.714(b). In the Board's view, DES-5 was just too general: LEA failed to describe a particular, cost-effective design al-ternative for a particular accident sequence. The fact that the staff had under way certain " generic" studies of the matter, according to the Board, did not render the contention admissible. Tr. 8776-78, 9471-75; Licensing Board Order of April 20,1984 (unpub!ished), at 1,3.

On appeal, LEA stresses that the staffs own studies, done under con-tract, identify severe accident mitigation design alternatives specifically for the Limerick facility. In particular, R&D Associates (RDA) ~under Contract No. NRC-03-83-092 is analyzing the cost-efTe.niveness of fea-tures sucn as a filtered-vented containment system. LEA argues that NEPA, a. well as Commission and Council on Environmental Quality (CEQ) regulations, require consideration of these alternatives, which might significantly mitigate the risk of a severe accident at Limerick.

Briefin Support of Appeal of Limerick Ecology Action, Inc. (October 4, 1984) [hereafter," LEA Brier'] at 210.2 We are inclined to agree with LEA that the NRC-sponsored studies on severe accident mitigation, which LEA identified or submitted to the Licensing Board, together provide enough basis and specificity for the 3 LEA also bnefly argues that the " record of decision" ror environmental purposes is deficient due to this radure to consider alternatives. LEA Bner at 47 48. See 10 C.F.R. ( sl.103.

693 l

l

__ m . . _ . _ _ _ _ _ . . - _ . _ _ _ _ __. . - _ ._ . _ _ . _ _ _ _ _ _ . .

k i

admission of contention DES 5. NUREG/CR-2666,"PWR Severe Acci-dent Delineation and Assessment" (January 1983), contains a chapter devoted to mitigation features specifically for Limerick.* It suggests that a filtered-vented containment system or containment spray system could lower the risk from a severe accident.5 But the discussion is largely qualitative (rather than quantitative), and no cost benefit analysis for any design feature is performed. NUREG/CR-2666 at 71 to 7-15,8-5.

The RDA study, however, is more enlightening. The September 15, .

1983, status report on the project states

I l'or hfark Il containment as esemplified by the Limerick Plant. mitigation require-i ments (functions) have been identined. including containment heat removal. core residue capture and retention without concrete attack, and 6f ATWS lanticipated

) transients without scraml events are to be mitigated) some kind of venting system. ,

Candidate components to fulnli these requirements have been selected for prelimi-nary conceptual design and cost estimation. Separate cost Ogures will be generated for il Plants before construction bepns. 2) Plants built but not yet in operation. and 31 Operational plants.

LEA's Reply to Applicant and Staff Response (October 10,1983), At.

tachment (Letter to C.W. Elliott from J.M. Felton (October 3,1983), ,

Enclosure at 4). By March 15, 1984, the preliminary design and cost '

analysis for several particular mitigation systems were completed, and the methodology for a quantitative value/ impact (i.e., cost benefit) anal- '

ysis was formulated.. Letter to C.W. Elliott from J. Rutberg (March 22,

] 1984) Enclosure (Monthly Project Status Report (March 15,1984) at 3-4).* Although the RDA project was not due to be completed untillate September 1985, the interim material available to the Licensing Board at i the time ofits ruling on contention DES-5 appears to have satisfied the threshold basis and specificity requirements for admission of the conten-tion; that is, particular design changes that might be cost-effective were at least identified. Whether that would ultimately be proven on the merits is another matter. That, however, is not the appropriate inquiry at the contention admission stage. Houston Lighting and Power Co.

(Allens Creek Nuclear Generating Station, Unit I), ALAB-590,1I

.-NRC 542,546-49 & n.10 (1980).7 l

1 t

• This is so despite the facts that Limenck is a boilmg water reactor (BWR) and the tule of '

NUREG/CR.2666 refers only to pressunted mater reactors (PWR).

s The authors of NUREG/CR-2666 did not include consideration of the containment spray sptem cur-tently installed at Limenck. NUREG/CR 2666 at 7-9.

• The RDA status reports were submitted to the Licensing Board and were incorporated by reference m vanous LEA rihngs.

7 The Licensing Board did not give much weight to the staff-sponsored RD A studies LEA cited because l

the studies were still under way and the staff considered them to be genenc." See Tr. 9451. 9453-54 <

(Contmued) 694 1

1. l l

l 5

l

. ,,, i

I Although the Licensing Board thus erred in excluding contention DES-5 for the reason it stated - i.e., the lack of basis and specificity -

we do not reverse and remand for further consideration of that matter.

For the l 9gation i of contention DES-5 is, in any event, preclude'd by Commission policy. At the time of the Board's ruling, the Commission' had proposed a policy statement on severe accidents. Sec 48 Fed. Reg.

16,014 (1983) [hereafter, " Proposed Severe Accident Policy"). In it the Commission noted the several extensive research programs under way to reduce the uncertainty in .isk calculations and to explore the feasibili-ty of certain engineered safety features. But the Proposed Severe Acci-dent Policy also pointed out that this rcsearch had "not yet produced sig-nificant new insights into consequence mitigation features sufficient to support further regulatory changes . . . " /d. at 16,018. Consequently, the Commission stated that "the capability of current designs or procc- <

~

dures (or alternatives thereto) to control or mitigate levere accidents should not be addressed in case related safety hearing. " / bid 8 The Commission's Proposed Severe Accident Policy was recently made elTective _ (in modified form) following consideration of public comments, and it dictates our ruling here. See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 82-83 (1974). As in the proposed version, the now- .

enacted policy statement finds no undue risk to the public health and safety and "no present basis for immediate action on generic rulemaking

. or other regulatory changes for [ existing) plants because of severe acci-dent risk." 50 Fed. Reg. 32.138,32,143 (1985) [hereafter, " Severe Acci-dent Policy Statement"). Further, the Commission explicit!y removes plant-specific reviews of eevere accident vulnerabilities as "a necessary or routine part of an Operating License review." Id. at 32,144.' Accord-ingly, it reiterates its earlier expressed position that severe accident miti-9472. But despite the staf!*s genene label. the RDA studies included Mark !! containments (such as Lamenck) and used Limenck as a case study. Tr. 9451. Further, although the RDA work was not yet final, it had progressed enough by the time or the Board's consideration or des.5 so that "dealized mitigation opportunities in Mark !!s" and "what they might cost" could be identified. Tr. 9453. That matenal provides at least as much basis and speci6 city as did the Federal Energy Admimstration report on which intervenors rehed in A#res Cirrk. Il NRC at 547, s In-rejecting an earlier version of des.$ (LEA's contention I 607.'the Licensing Boar 3 rehed, in part.

on the Prt' posed severe Accident Pohcy. LBP.83 39.18 NRC 67. 87 88 (1983).

'Thus, because severe accident mitigation is not matenal to its hcensing decisions, the Commission can properly exclude this issue rrom adjudicatory heanngs. Ueme of Coaremed Scirerists v. .VAC. 735

F.2d 1437.1444 51 (D C. Cir.1984), cerr. dresed. _ U.s. 105 s. Ct. 815 (1985);Siegel r. AEC, 400 F.2d 773. 783 85 (D C. Cir. I%8).

695 Z

e

gation measures, beyond already existing Commission requirements, "should not be addressed in case-related safety hearings." /d. at 32,145.'*

This is not to say that severe accident mitigation is being ignored. As the Commission points out in both the proposed and promulgated ver-sions of the policy statement, extensive research in this area - evi-denced by the very studies LEA cites - is ongoirig. "Should significant new safety information develop, from whatever source, which brings into question the Commission's conclusion that existing plants pose no undue risk, then at that time the specific technical issues suggesting undue vulnerability will undergo close examination and be handled by the NRC under existing procedures for issue resolution including the possibility of generic rulemaking where this is justifiable." /d. at 32,144."

We also note that, despite the exclusion of contention DES-5, the possible risks posed by the Limerick facility have received considerable attention from the staff. In accordance with the Commission's Statement of interim Policy on " Nuclear Power Plant Accident Considerations under the National Environmental Policy Act of 1969," 45 Fed. Reg.

40,101,40,103 (1980) [hereafter, " Interim NEPA Policy"], the final en-vironmental impact statement for Limerick includes consideration of the environmental risks of both " design-basis" accidents and those that would be more severe.'2 As part of this enlarged environmental review, MLEA argues hat the Pol.cy batement does not apply to des-5 because in both the proposed and final =ersions the Commission refers to " safety hearmgs* and LEA's contemson raises enuronmental

- not safety - issues See App. Tr.11415. we thmk LE A reads the Commisuon's statement too nar-rowly it is urircasonable to beheve the Commission imended to preclude htigation of severe accident mitigation measures under the rubric of safety nsues, whik permitting the htigation of the same subject matter as an environmental issue. This is especially so, gnen Commission precedent holding that NEPA could not logically require more than the safety provisions of the Atomic Energy Act. and court precedent recognismg the mherent interrelationship of these statutes and thus issues raned under eash.

Sec PuMe Smar Decrne and Gas Co. (Hope Creek Generating station, Units I and 2) AL AB-518,9 N 5tC 14,39 (19794Cneces/iw Sa/r Poiice. Inc. v. ARC. 524 F.2d 1291.1299-1300 (D C. Cir.1975L 11 on appeal (LEA Bnef at 51, LEA refers to a portion of the Proposed severe Accident Pokcy that states- "lijn future CP Iconstruction permit] apphcations . . . rittered-vented contamment systems, or a variation of such systems should be provided if these yield a cost-effective reduction in rnk? 48 Fed.

Reg. at 16.019. See also al. at 16.020. (This language does not appear in the actual policy r'atement as enacted.) LEA claims that severe accident mitigation systems, such as a filtered-vented contamment system, cannot therefore be considered " remote" or " speculative" and must be conudered here we agree that the regrept of such systems is not remote. but that is a far cry from a determination that they are feamble and cost-efrectne. The purpose of the ongoing research is to anatyre just that. Sec. er.. Con-soMared Edison Co. o/New YorA (Indran Pomt. Unit No. 2) CLI-85-6. 21 NRC 1043,1073 (1985L The fact that the Commission has directed consideration of these systems in

• future CP apphcations" (none of which has been riled since the late 1970s) is m no way inconsntent with its conclusion to preclude their consideration in the hcensms of cuestmg plants.

f 2 such severe accidents were formerly termed " Class 9* and were not consdered m the environmental reviews of proposed plams because of their low probabihty of occurrence. They postulate significant detenoration of the fuct and of the abihty of the containment structure to I.mit radioactive releases mto the environment.

696

,- *r

[i'

- -.: ~. - . . . . ~ - - - . - - - - - - . . . _ . - _ _ _ _ _ _ _ _ . - _ _.

l' a probabilistic risk assessment (PRA) of Limerick was performed. See NUREG-0974, " Final Environmental Statement" ( Aprii 1984) [hereaf-ter, "FES"), at 5-73 to 5-126.12 Based on several factors including the re-sults of the PRA, the staff has concluded that the likelihood of a severe accident at Limerick is "small and comparable to that of other reactors."

Id. at 5-126. The staff goes on to state generally that, "[blased on the

. considerations of environmental impacts of accidents, which have not been found to be significant, [it] has concluded that there are no spe-cial or unique circumstances about the Limerick site and environs that would warrant consideration of alternatives for Limerick Units l and 2."

Ibid.

' This additional, special attention devoted to the possibility of a severe accident at Limerick was undertaken as a matter of Commission discre-tion. It is not required by NEPA and has only served to confirm the Commission's view of the low risk posed by the facility. See San Luis Obispo Mothersfor Peace v. NRC, 751 F.2d 1287,1301 (D.C. Cir.1984),

vacated in part and reh*g en banc granted on other grounds, 760 F.2d 1320 (1985). A fortiori, consideration of possible design alternat'ives to miti-gate a severe accident is not required either. Thus, the exclusion of LEA contention DES-5 violates neither NEPA nor any regulation promulgat-ed pursuant to it. .

B. The Risk of Sabotage Neither PECo's nor the staffs environmental review of Limerick con-sidered the effects of sabotage because "such an analysis is considered to be beyond the state of the art of probabilistic risk assessment." FES at 5-74. A portion of LEA's contention DES-6 claimed that the exclusion of a sabotage-initiated accident scenario violates NEPA and Commission policy and regulations.i' As the basis for this contention, LEA submitted a one and one-half page excerpt of a report prepared by Steven Sholly of I3 Because Limenck is located en an area of relatnely high population densuy. at is one of the few plants for which a PR A has been performed. The Commission recemly desenbed PRAs as "not empirically venfiable," but nesertheless " helpful supplement (s) to engineering judgment" and "'very powerful tools for identifying strengths aN weaknesses in reactor safety.'" Indes Pomt. 21 NRC at 1057.

'4 The additional factors considered by th: -taff are set forth in the FEs at 5126.

85A further stafr review of the Limenck PR A revealed several areas where cost-efrective improsements could reduce Limenck's suinerability with respect to core damage accidents. The stafr has found PECo's response to these concerns reasonable and acceptable. See NUREG-1068. "Resses insights on the Probabihsts Risk Assessment for the Limenck Generating station" ( August 1984), at 71 to 8 5.

(The preparation of this document was bnefly discussed at the hearing (see Tr. 9424-4%. but the report itself was not completed until after the heanns concluded and about the time the Board issued the deci-soon before us on appeal. It was, however, served on all parties by Board Notirication 84-147 (september 17.1984h and no party sought to reopen the record to pursue any of the report's findingsJ 16 Contention des-6 also concerned another issue. not raised here on appeal.

697

[C-

the Union of Concerned Scientists on the Severe Accident Risk Assess-ment (SARA) for Limerick. In this report, Sholly concludes that a sabo-tage risk analysis could be performed. LEA DES Contentions at 14; Letter to Licensing Board from J.A. Dorsey (August 31,1983), Enclo-sure (hereafter, " LEA SARA Contentions"] fol. 21.

The Licensing Board, however, rejected the sabotage portion of con-tention DES-6. It determined that various Commission policy statements militate against litigation of such an issue. The Board referred specifically to the Proposed Severe Accident Policy,48 Fed. Reg.16,014, and the Commission's policy statement on the " Safety Goal Development Pro-gram," 48 Fed. Reg. 10,772 (1983) [hereafter, ." Safety Goal Policy"].

Tr. 8778-80; Order of April 20 at I,3. In the latter policy statement, the Commission expressly excludes consideration of the possible efTects of sabotage from its " safety goal" because "[ alt present there is no basis ~

on which to provide a measure of risk on [this matterl." 48 Fed. Reg. at ,

10,773." The Proposed Severe Accident Policy takes note of this, but suggests that, in the future, applicants for standard design approvals or construction permits should nevertheless address the issue of sabotage in their Safety Analysis Reports. 48 Fed. Reg. at 16,020.

On appeal, LEA criticizes Commission policy as evidencing a "reluc-tance to confront the issue" of sabotage. LEA Brief at 14. It also argues that both NEPA and a CEQ regulation, 40 C.F R. { 1502.22, require consideration of sabotage as part of a." worst case" analysis - even though there may be uncertainties in the data on which a sabotage risk analysis would be based, in LEA's view, a potentially catastrophic event (i.e., a severe accident triggered by sabotage) cannot properly be exclud-ed from the environmental review simply because the likelihood of its happening is remote.

We conclude that the Licensing Board did not err in excluding LEA's sabotage contention. At the outset, it is important to place the conten-tion in proper perspective. As already discussed above in Part I.A and as the staff points out in its brief, the FES does, in fact, consider a whole -

range of design basis and severe accident scenarios. See NRC Staffs Response in Opposition to the Appeals (January 7,1985) [hereafter,

" Staff Brief'l at 58. Insofar as this review - undertaken pursuant to the .

Commission's Interim NEPA Policy - encompasses severe (beyond de-sign-basis) accidents, it is not even required by NEPA. San Luis Obispo Mothersfor Peace,751 F.2d at 1301. LEA does not explain what separate Uit es noteworthy that egen the safety goals and design objectives that are included in the Commis.

sion's safety Goal Development Program are "not to be htigated in the Commission's (bcensingl hear.

ings." 48 Fed. Reg. at 10.775.

698 R

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

t r

consideration of sabotage as an initiator of such a severe accident would add, from a qualitative standpoint, to this discretionary environmental

' review It would also add nothing of real quantititive signiGeance." LEA has therefore failed to cast any serious doubt on either the staffs conclu-sion that a sabotage risk analysis is beyond state of the art probabilistic risk analysis or the Commission's similar determination that there is no basis by which to measure that risk. See FES at 5-74; 48 Fed. Reg. at 10,773." Contention DES-6 thus lacks even the threshold basis and speciGeity necessary to withstand rejection.

A second factor to bear in mind is that, although the risk of sabotage cannot be quantiGed in a way that would permit its litigation per se, the Commission's regulations nonetheless require each plant to have a detailed security plan to protect against external and internal sabotage, See 10 C.F.R. Part 73. The adequacy of such plans are subject to litiga-tion in licensing hearings. See, e.g., Pacyic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-653, printed as an Attachment to CLI-82-19,16 NRC 53 (1982), LEA, however, has raised no challenge to Limerick's security plan.

LEA's argument that the risk of sabotage must be considered as part-of the worst case analysis " required'.' by CEQ regulations is unavailing.20 The provision in question, 40 C.F.R. f 1502.22, is addressed to "liln-complete or unavailable information." As pertinent here, section 1502.22(b) provides:

H The stafT h.ts esplamed that whatever additional rnks might be assocuted with salmtagenmtiated acci.

dents are eswntially already taken into account in the 1.imenck PR A witha a general category of uncer.

tainties. Ser FEs at 5-74..* 112. sholly, howeser, apparently tuheves that a more precne calculation can be determined. By dnedmg the total numher of reactor-years for all facthties through the end of 198i (atinut 633) by the number of reported acts of insider sabotage between 1971 and 1981 (11),

sholly computes a frequency of roughly one act o(sabotage for every 60 reactor-years. He act somledges.

homeser, that other vanables would have to be added in order to rcrtne the analysis. For one thing. his calculation fads to renect that none of the 11 acts of sabotage was successfulin initiatmg a reactor acci-dent. Further, the analysis does not consider the frequency with which ddTerent systems of warr ..g sig.

nificance to the safe operation of the plant would be LTected. shally himself thus admits that 2ny sabo-tage rnk analysis would have "large uncertainties." LE A s AR A Contentions fol. 21. In efTcct, esen this process would mvolve a substantial amount of guesswork. The stalTs approach of cons 4denna sabotage along with other uncertamties is thus :casonable.

M The Commission's recently adopied severe Accident Pohey statement is conntent with this as well.

It recognizes the importance of sabotage and indicates that this issue will be carefully analyred "to the extent practicable" in the design and operatmg procedures for new plants. Existing plants, hnwever, need only conform to the Commission's current regulatory requirements. 50 Fed. Reg. at 32,141, 32.144-45.

To the extent that LEA cnticizes Commission pohcy, its argument is of course, directed to the wrong forum.

NLEA presses its CrQ arg ment for the first time on as peal. In this circumstance, we would be Jusuried in summanly dismissmg it. Trenesser Va#ry 4uthonty (Hartsville Nuclear Plant, Units I A,2A, IB, and 281, ALAB-463. 7 NRC 341,348 (1978). Nevertheless, we explain below the several reasons why 40 C.F.R. l 1502.22 does not dictate a difrerent result in this case.

699

,n-w-

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

l If. .the information relevant to adverse impacts is important to the deci-sion and the means to obtain it are not known (e.g., the means for obtaining l

it are beyond the state of the art) the agency shall weigh the need for the l action against the risk and severity of possible adverse impacts were the 1- action to proceed in the face of uncertainty. If the agency proceeds. it shall include a worst case analysis and an indication of the probability or improba- I bility ofits occurrence.

1 in the Statement of Consideration for the 1984 revision of the NRC's s environmental regulations,10 C.F.R. Part 51, the Commission addresses i the asserted requirements of 40 C.F.R. f 1502.22(b). It agrees that each agency must decide for'itself whether the unknown information is rele-vant and important to its decision and whether it wishes to proceed with the action in question. The Commission objects, however, to the re- ,

quirement of a worst case analysis, characterizing this as a substantive (rather than' procedural) requirement, by which the NRC - as an inde-pendent regulatory agency - is not legally bound.2t Instead, the Com-mission states that its Interim NEPA Policy - with which the FES'here complies - is designed to address the concerns of CEQ retlected in the worst case analysis regulation. 49 Fed. Reg. 9352,9356-58 (1984).22 In any event, we in turn are bound by this judgment on 40 C.F.R.

f 1502.22(b): we cannot accord binding effect to a regulation explicitly

. ' eschewed by the Commission itself.

Even if the Commission had not so clearly proscribed the application of 40 C.F.R. f 1502.22(b), we would conclude that, by its 'te,rms, the regulation would not mandate here the consideration of sabotage in a worst case risk analysis. Risk is the product of probability and conse-quences; the'" worst case" is concerned with the consequences side of the equation. As discussed at pp. 696-97, supra, the worst case has in fact been addressed in the FES for Limerick. What has not been empiri-cally considered is sabotage as the source of the worst case consequences because of the uncertainties in determining the probability of sabotage

- not uncertainties in determining the consequences. The CEQ regula-tion, however, focuses on the latter and thus does not pertain here.22 21 The supreme Court has lert open the question whether CEQ regulations are tnndmg on mdependant i ageneses. Bakmore Gas and Electre Co e. .Verural Resources Defense Council Inc. 462 U.s. 81. 99 n.11 (1983L 22 We note that CEQ recently proposed the amendment or 40 C.F.R. 61502.22 by chminating the ,

" worst case analysis" provisc,n. See 50 Fed. Res. 32.234 (1985L  !

, 23The language or the regulation bears this out. The last sentence or section 1502.22(b) states that the

, agency shall include "a worst case analysis and an indication or the probabehty or improbability orits oc.

currence" (emphasis addedL e

1

- 700

- _ - _ m . __ . _ _ , . _ . . _ , _ . . _ _ _ , __

_ _c ^N

Finally, anticipating the argument that CEQ regulations are not bind-ing on the NRC, LEA contends that NEPA itself requires a worst case analysis of sabotage risk. It relies principally on Sierra Club v. Sigler,695 F.2d 957,971 (5th Cir.1983), which, holds that the CEQ regulation in question rnerely codified the preexisting judicially-created " common law" of NEPA. Therefore, LEA argues, the NRC must weigh the cost of uncertainty concerning sabotage risk and consider in a worst case analy-sis a sabotage-initiated event of low probability but potentially catas-trophic consequences. See id. at 971-72.

Assuming Sig/cr applies here, however, it does not aid LEA's case.24 In the first place, the court indicated that an agency 7may (and should) consider remoteness." Id. at 974. Perhaps more important, the court recognized that "[t]here must, of course, be a base ofinformation upon which to project past these limits." Ibid. Thus, it found that' the Sierra Club's proposed model of oil dispersion (caused by the total cargo loss.

of a supertanker) in a wildlife estuary " based on known information about tides and' currents in the Bay" - was " informative and useful" and " reasonably limit [ed) speculation." Ibid. (emphasis in original).

Thus, the unknown information in Sigler could reasonably be estimated from long-known, fundamental physical principles (tides and currents).

We are aware of no similar principles (and LEA identifies none) that would permit reasonable prediction of - like the next high tide - the kind of stochastic human behavior displayed in an act of sabotage.

In sum, the risk of sabotage is simply not yet amenable to a degree of quantification that could be meaningfully used in the decisionmaking process. The Licensing Board therefore properly excluded LEA's conten-tion DES-6.

- C. Socioeconomic Impacts LEA's contention DES-4(A) claimed that Supplement No. I to the staff's Draft Environmental Statement (" DES Supplement") failed to give adequate consideration to eight identified consequences of a severe accident. See LEA DES Content. ions at 9. The Licensing Board permit-ted litigation of most of the eight areas. As pertinent to this appeal, how-ever, the Board rejected the following two matters:

24 we see somewhat of an inconsistency between Sigler and San Lms obispo Afoshers for Peace. The latter squarely holds that NEPA does not require the SRC to consider at a# sewere. beyond deugn-baus accidents because ortheir very low probabdaty. 751 F.2d at 1301. Yet Sigler - cited with seeming ap.

. proval in connection with a discussion of 40 C.F.R. i 1502.22 in San Lms 06npa Mothersfor Peace, 751 F.2d at 1302 n.77 - suggests that the common law of NEPA requires an agency to perform a worst case analysis. even for events of low probability whenever there are uncertainties in important information.

Sec 695 F.2d at 97172.

1 I

701 l

4 'i

.m._. -. - : - . - -

(4) The socio-economic cost of compensation required for health etTects induced by radiation exposure; (5) Industrialimpacts beyond the Grst year following the acetdent, and quantiGca-tion of costs beyond the " output loss" mentioned in DES [Supplementl. p 5 461.1 lbid. The Board considered these parts of the contention "not admissible because they are speculative, both in terms of occurrence and in terms of any reasonable quantification, even given that occurrence, and they are remote in terms of our reasonable proximity . . . This is particularly so, given what the analyses include and other contentions, especially the other part of this very contention which in some respects goes more directly to things of concern, particularly with respect to 4." Tr.

8773-74. See Order of April 20 at 1,2.

On appeal, LEA acknowledges that the FES discusses socioeconomic

. impacts but it arg'ues that that discussion is too limited.25 It also contends that, in violation of certain CEQ regulations, the Licensing Board ig-noted " additional significant economic impacts that can be known with reasonable certainty." LEA Brief at 20. LEA takes issue with the Board's statement that the impacts in parts (4) and (5) of contention DES-4(A) are speculative and not amenable to reasonable quantifica.

tion.26 It also asserts that there are enough data, provided by the staff itself, from which to calculate industrial impacts for periods in c'xcess of 30 years. Even if there were difficulties in performing'such computa-tions, however, LEA argues that the NRC is nonetheless required to at-tempt them in the context of a worst case analysis.

We are not persuaded by LEA's arguments, it is not apparent from the actual wording of part (4) of contention DES-4(A) or LEA's brief on appeal exactly what LEA means by "[t]he socio-economic cost of compensation required for health effects." In response to the Licensing Board's questioning at the hearing, however, LEA's counsel clarified that DES-4(A)(4) concerns essentially tire dollar value of compensation awarded to accident victims through insurance claims and lawsuits. See Tr. 8700-01.27 By multiplying'an assigned value per human life (e.g.,

25 The relevant portion of the FEs is virtualty edentical to that in the des supplement. As LEA has done an its bnef on appeal, we will therefore refer to the FLs. rather than the des supplement, from this point on.

26 In this connection. LEA points out that the Pnce Anderson Act. 42 U.s C. ( 2210, provides for com.

pensation. up to a specirted limit to victims of nuclear power plant accidents. Thus. LEA reasons that the recovery of such compensation cannot properly be considered "spxulauve."

27 No party cited to this portion of the record. We remind alllitigants that, as an appellate body. we do not oversee licensing hearings and thus have no working familianty with the lengthy record below. We (Commad) 702

w: T L '.::: '::. L ..X *. ^:^L.L.: " LL:J~ TT ' ~ ~ "~ ~ -

~'2.~-^^

~

^ C - - ---

. one million dollars) by the estimated number of early fatalities from a '

i severe accident (shown in the FES under the category of health effects),

1 LEA suggests a basis for quantifying this " cost of compensation." Tr.

8701-02. This is apparently the " additional - significant economic

impactU that can be known with reasonable certainty," which LEA claims must be considered in the environmental analysis of the plant.

LEA Brief at 20.

We agree with the Licensing Board that this " simple" calculation of the cost of compensation is highly speculative. It yields a quantification

, of sorts, but it does not provide any reliable information of decisional

, significance in addition to that already quantified in the FES and admit-ted for litigation as a separate part of contention DES-4(A) - i.e., the health effects of a severe accident. Indeed, it might well be ar;;:cu dat inclusion of such hypothetical costs, determined on the basis of random-l

.ly selected values applied to an event of very low probability, diminishes the true worth of the FES in the decisionmaking process. In any event,  !

part (4) of DES-4(A) surely involves the kind of "' remote and highly j speculative consequences'" that need not be addressed in an environ-

! mental impact statement. See San Luis Obispo Mothers for Peace, 75l j F.2d at 1300 and cases cited.  !

The same is true for part (5). The stalT recognizes that a severe acci-i

~

dent might " force numerous businesses to temporarily or permanently close." FES at 5-102. Nonetheless, its analysis ofindustrial impacts does not consider consequences beyond the first year following an accident "because they will vary widely depending on the level and nature of ef-i forts to mitigate the accident consequences and to decontaminate the

$. physically affected areas." Id. at 5-106. LEA points to "probabilistic cal-l' culations of specific land area interdiction by time period, distance, and sector, together with the extensive land use data available in the appli-

, cant's environmental documents" as support for its view that longer

term impacts are not speculative and can indeed be quantified. LEA

, Brief at 24 25. But none of the empirical data mentioned by LEA or in i the FES would make "more certain" - and thus, less speculative - the longer term uncertainties identified by the staff; the nature of efforts

to mitigate the accident and to decontaminate affected areas. These are

! unknowns for which no relevant, practical experience exists.28 The line 4

t 4

- must accordingly rely heavdy on the parties' bnefs ror references to all relevant parts of the record.

This is especially true where. as here, the ruhngs appealed were rendered from the bench and _no detaded, wntren opmion by the Licens4ng Board is available.

2s Even the 1979 accident at Three %1e tsland did not involve the long-term mdustnal impacts to which des-4( Alf 5) is addressed See generaRy Report of the Governor's Commnsion on Three Mae island j (1980) at 18-21. 29-43.

703 a

1

-. - . . - _ . - . - . - - . - _ , , , , - _ - - - - . _ . , , _ . . ...___.,.~._,-,__.__..,____-._._--._r,-

has to be drawn somewhere, and we believe the staffs determination to consider only the first year of post-accident industrial impacts is a rea-sonable one. Consideration oflonge, term impacts would, again, involve engaging in a level of speculation not required by NEPA.

As in the case of LEA's other severe accident contentions discussed here on appeal, it is important to keep in mind what the environmental review for Limerick does encompass. LEA concedes that the FES, in fact, considers various socioeconomic impacts of a very low probabilirr severe accident. This consideration was undertaken in compliance with the Commission's Interim NEPA Policy,45 Fed. Reg. at 40,103.2' The discussion of socioeconomic impactsc however, is more detailed and inclusive than LEA suggests. See, e.g., FES at 5-93 to 5-94, 5-98, 5-99 5-102, 5-106 to 5107. Moreover, several of the estimates used in the analysis rely on somewhat conservative assumptions - for example, no use of unused capacity in an area unaffected by the accident to offset the initial lost production in the affected areas. Id. at 5-106. See also id. at 5-107. In the absence of any well-founded challenge to the adequacy of this discussion, we are therefore unable to conclude @at either the Licensing Board's or the FES's consideration of the socioeconomic im-pacts of a severe accident is legally deficient.

D. Human Health Impacts LEA's last environmental arsamen; is essentially a procedural one. It complains that the FES does not contain the complete disclosure of cer-tain nonfatal human health impacts of a severe accident, which NEPA assertedly requires. LEA lists six such impacts that the FES does not ex-plicitly discuss, d: spite the fact that the risk of these effects is greater than that of most cf those that the FJS does address."

The Licensing Board agreed with LEA that "it would have been more helpful to lay members of the public if the FES had contained more com-plete disclosure and explicit consideration of [these impacts)."

24 Thus. we need not decide whether the caws and vanous CEQ regulations to whnh LEA refers require NRC consideranon of moeconomic impacti See also pp. 699-700 supre. We note, however, that the cases cited do not involve the socioeconomic impacts of an event of very low probabihty such as that in-vohed here. See City of Rochester v. Umred States Postal Serra. 54l F.2d %7 (2d Car l9765. Trmits Episcopal School Corp. v. Romney. 52) F 2d 88 (2d Cir.1975). The latter cue also concerns a different secnon of NEPA.

M The sai caregones of impacts are genetic effects / changes, nonfatal cancers, benign thyroid nodules and hypothyroedism, spontaneous aboruons, stenhty. and developmental impairment of children. Most of these are set forth ut LEA's contenuon des-4( A)(!).

704 7;

LBP-84-31,20 NRC at 551.2' But the Board also found that the evidence concerning these nonfatal human health impacts adduced by the staff and PECo at the hearing, along with the Boar t's findings and conclu-sions, properly amended the FES. The Board concluded that this practice is acceptable under both the Commission's prior and existing NEPA regulations (and Commission and court precedent alike). Id. at 552-53.

It explained, in this regard, that this additional evidence did not substan-tially modify the FES or result in any change in the conclusions of that document about the total risk posed by the Limerick facility. /d. at 551, 552 53, 557, 560, 573. The Board went on to discuss the pertinent evi-dence at some length, concluding that "the nonfatal latent health effects have been adequately disclosed and considered" and that these risks are

" clearly small." Id. 2t 554-60,573.

On appeal, LEA disagrees with the Licensing Board's reading of the pertinent NEPA regulations. it contends that the only applicable existing NRC regulation does not permit supplementation of the FES through the hearing process. LEA does not, however, challenge the substance of either the record or the Board's detailed discussion of it. Instead, it

- seeks, in efTect, summary reversal of the Board's conclusions and supple-mentation and recirculation of the FES. LEA Brief at 26-32.

Amendment of the FES by the adjudicatory hearing record and subse-quent Licensing Board decision is entirely proper under NRC regulations and court precedent. The applicable regulation in effcet at the time of the hearing,10 C.F.R. 5 51.52(b)(3) (1984), provided:

an initial decision . . may include findings and conclusions which affirm or modify the content of the final environmental impact statement prepared by the staff. To the extent that findings and conclusions different from those in the finai environ-mental statement prepared by the stalT are reached the statement will be deemed modif;cd to that extent and the initial decision will be distributed as prosided in f SI.26fc).

LEA seems to acknowledge, at least tacitly, that the Board's action fully complied with this provision. LEA Brief at 31. It argues, however, that this regulation was not readopted when the Commission revised 10 C.F.R. Part 51 in 1984; thus, it no longer exists and does not apply here.

According to LEA, the new provision cited by the Board,10 C.F.R.

s 51.102 (1985) - which took effect soon after the hearing on this 31 The staff did not include this matter in the FEs because it "behesed that such disclosure was impheit by citing authontative references which treat these matters m detasi." It also believed these impacts are "relatively unimportant in its best-estimate calculations or the nsks or potential reactor accidents at Limenck." i.BP-84 31,20 NRC at 559. The Board noted that "[pjerhaps (the omission or this material in the FEsl was a consequence or using state.or-the. art knowledge anu methodology." Id. at 573.

705 16 $ -

l l

I matter but before the second partial initial decision was issued - does not require recirculation for public comment of the FES, as amended by the Board's initial decision. The FES thus remains deficient under NEPA and can be cured only by recirculation. LEA Brief at 31-32.

.We need not decide which regulation controls, for section 51.102 serves the same purpose as its ditTerently worded predecessor, section 51.52(b)(3). LEA's argument is therefore without merit. Section 51.102(a) states that "[a] Commission decision on any action for which a final e.nvironmental impact statement has been prepared shall be ac-companied by or include a concise public record of decision." Generally, that record is to be prepared by the staff.10 C.F.R. f 51.102(b). When an adjudicaWV hearing is held on the action, however, the initial decision of the (Licens ng Board! . . will constitute the record of decision.

An initial or final decision constitutmg the record of decision wdl be distributed as prosided in 4 51.93.

10 C.F.R. { 51.102(c). Section 51.103 describes the contents of the

" record of decision," noting that it may incorporate by reference any cnaterial in the final environmental statement. On its face,10 C.F.R.

s 91.102 thus merges the FES with any relevant licensing board decision to form the complete environmental record of decision - just as former section St.52(b)(3) did.32 But even under the stricter construction of section 51.102 urged by LEA, nothing in it precludes modification of an FES by licensing board decision.

Several federal courts of appeals have approved the procedure set forth in former section 51.52(b)(3), providing for the amendment of an FES through the adjudicatory process. See New England Coalition on Nuclear Pollution v. NRC,582 F.2d 87,93-94 (1st Cir.1978); Citizensfor Safe Power, supra note 10,524 F.2d at i194 n.5. See also Ecology Action

v. AEC, 492 F.2d 998,1001-02 (2d Cir.1974).33 There is no reason to 32 The Commission's statement or Consideration for the 1984 revisions to Part 51 does not discuss sec-tion 51.102. Set 49 Fed Res 9352. The dncussion of this section m the notice of pmposed rulemakmg.

however. clearly contemplates modirvation of an FEs by a board decision followmg evidentiary hearms on an environmentalissue. See 45 Fed. Reg 13,739,13.741 (1980L 33 LEA cites a decision of the First Circuit. Gra:fng ficus farm v. Gouschmu/r. 626 F.2d 1068 (t s: Cir.

1980), in support orits view that an FEs cannot properly be amended by the heanns record. But that de-cision - which does not even cite to that circuit's opmion in New England Coahtms, rendered Just two years carher - is easily distinguished The studies and memoranda on which the Federal flighway Ad-mmistration rehed in Gra:mg frus - albeit m the administrative record - were "not incorporated m any way'* mto the environmental impact statement for the highway project there 4t issue. The court therefore concluded that such studies could not "brms into comphance with NEPA an Els that by itself is inadequate." Id. at 1072. Here. of course. the Licensms Board euphcitly amended the FEs by its deci-sion. Sec. e p.. LBP.84-31. 20 NRC at 572. Sioreover the FEs itselfis not madequate. See p 707. #fra.

t 706

, h,

believe that the courts would not be just as approving of the same proce-dure today, either as embodied in section 51.102 or, indeed, in the ab-sence of any regulation, as a matter of board practice.

While suggesting no prejudice to its own interests, LEA nonetheless voices concern that NEPA's purpose in providing the opportunity for public comment on an environmental statement is somehow thwarted by board amendment of an FES. But as the Licensing Board here pointed out, "the hearing . . . provide [s] the public ventilation that recirculation of an amended FES would otherwise provide." LBP-84-31, 20 NRC at 553, citing ALAB-262,1 NRC 163,197 n.54 (1975). This arguably allows for additional and a more rigorous public scrutiny of the FES than does the usual " circulation for ccmment." Further, like its predecessor regulation, section 51.102(c) requires that the decision amending the FES be distributed to various entities, including the Environmental Pro-tection Agency, state and regional clearinghouses, and commenters on

, the FES. See 10 C.F.R. { 51.93(a). The staff has done so here. See Letter to A. Hirsch from A. Schwencer (December 3,1984) and at-tached service list."

Finally, it bears repeating that the impacts at issue here are those that might result from a low probability severe accident - an event that, ac-cording to the court in San Luis Obispo Mothersfor Peace, 751 F.2d at 1301, need not even be considered for NEPA purposes. Thus, the exten-sive consideration given at the hearing and in the Licensing Board's deci-sion to the identified nonfatal human health impacts - which considera-tion LEA does not attack on the merits - can hardly be criticized as in-adequate under NEPA.

E. Onsite En Argency Plan I. In its first challenge on appeal to PECo's onsite emergency plan, LEA claims that the Licensing Board closed the record too soon on its contention vel-8(b). That contention essentially complains that the emergency plan's descriptions of Limerick's Emergency Operations Facility (EOF), Technical Support Center (TSC), Operations Support Center (OSC), and unspecified emergency equipmerit and supplies are M we are somewhat troub6ed, ho*ever, by several aspects of the staffs fulfillment of this distnbution responsibihty. For one thmg. we do not understand why it took more than three months to rerform this mmisterial task. For another, although it is m the NRC's headquarters and local pubhc document rooms, the Board's deosion does not appear to have been served on a few FEs commenters (for exam.

pie. John Doherty and the Delaware Roer Basin CommissionL Laewise this Appeal Board - which clearly had jurudiction over this part of the Limerrk proceedmg m December 1984 - was not served with a copy of schwencer's letter. We I;arned of this only through PECo's bnef. See Appli cant's Bnef (December 28.1984) at 31 n.75.

I 707 I

l l

70)_,

insufficient to permit a meaningful assessment of these facilities' compli-ance with various regulatory criteria."

LEA argues that, at the time of the hearing on this contention, the staff had not yet evaluated these facilities, and it points to the Licensing Board's statement that "the Staff's review was still far from complete" at this juncture. LBP-84-31,20 NRC at 527.h LEA requested the Board io await the staff's appraisal visit report and thereafter to afford the par-ties the opportunity to propose Sadings in this regard. The Board, how-eve.r, declined to do so. It balanced the intervenor's possible interest in the outcome of the staft's review against the absence of anything partic-ularly unusual or controversial about that review and the crite ia applied by the stafT. The Board also stressed that " LEA raises no specific concern that any of these facilities will not meet a particular requirement." /d. at 527-28. It therefore ruled in favor of PECo on the contention. Id. at 516.

LEA contends that the Licensing Board has failed to make all of the findings required by the Commission's various emergency planning documents in connection with contention Vill-8(b). In its view, the Board has improperly delegated to the staff the post-hearing resolution of this issue, in violation of the hearing requirement of section 189a of the Atomic Energy Act,42 U.S.C. l 2239a, as well as Commission and court precedent and sertions 5 and 7 of the APA,5 U.S.C. ll 554,556.

We disagree. First, the staff's review of PECo's emergency planning facilities was more complete at the time of the hearing than either LEA or the Licensing Board's decision suggests. The staff had completed its review of PECo's revised emergency plan, which included, among other things, descriptions of the EOF, TSC, and OSC. See Applicant Exh. 32, MThe euct wording of contenuon Vill-8f bl rollows.

The LNGsEP [Limencic Nuclear Generaung stauon Emergency Planl fails to demonstrate that-adequate emergency facilities ad equipment to support emergency response are provided and maintamed as required by 10 CrR ) 50.47(bH8). especially in that:

(b) The Plan's desenpuons of the Emergency operanons Facihty (Plan 4 7.1.2), the Tec5mcal support Center (Plan i 7.l.3), the Operauonal support Center (Plan i 7.I.4), and emergency equipment and supplies are all msufficient to meanmgfully assess comphance with 10 C.F R.

( 50.47(bH8) and to evaluare the facihties with respect to the entena of NUREG-0654, supple-ment I to NUREG-0737 48), and NOREG.0646. Intervenor contends the apphcant has not demonstrated that the facihues proposed are adequate. Apphcant's response to Q 810.30 states that the plan will be expanded when final mformauon is available on thew facilines.

B 4 SIS 10 CFR ( 50.47(b)(8); Part 50. Appendnu E; NUREG-0654. Cntena II.l. 2. 9. NUREG.0696

" Functional Cntena for Emergency Response Facihues: NUREG 0214, pp. 215; supplement 1 of NUREG-0737 ( 8.

LENS Admitted On-site Emergency Planning Contenhons (November 14.1983) [hereafter " LEA's Emergency Plannmg Contcnuons") at 7 8.

M The only direct evidence on onsite emergency planning was presented by PECo and the NRC stafr.

LBP.84 31,20 NRC ai 515.

708 1

i 7ef

sf 7.1.2, 7.1.3, 7.1.4. The staff had also requested and obtained from PECo additional information concerning specific parts of the plan, which it reviewed (along with the plan itself) and found acceptable. Sears, fol.

Tr. 9776, at 2-3,9-12. Further, the stafT had conducted a site visit of the facilities. Id. at 4; Tr.10,061. The staff testified at the hearing that the facilities themselves were "itear" or "very near to completion" "well above 75 percent." Tr.10,062. Essential communications equipment, desks, the Radiation and Meteorological Monitoring System (RMMS),

and the Emergency Response Facility Data System (ERFDS) were in-stalled at the time of the staft's tour but were not yet " hooked up" for-operation. Tr. 10,061-62. All that remained were the staffs final onsite appraisal of PECo's capability to implement its overall emergency plan, and a determination of the reliability of the equipment in the facility.

Sears, fol. Tr. 9776, at 3; Tr.10,064-70.

The operability and reliability of the equipment and the conformity of the as-built ' emergency support facilities with their design, however, were not the subject of contention Vill-8(b). As noted above, that con-tention was directed to the adequacy of the plan's descriptions of the EOF, TSC, OSC, and associated equipment vis-a-vis the Commission's regulatory criteria. See note 35, supra. Perhaps LEA sought to litigate something else, but it is bound by the literal terms of its own conten- .

tion.37 Moreover, as the Licensing Board noted, LEA did not (and does not still) explain in what particular respects the emergency plan's de-scriptions are madequate. See LBP-84-31, 20 NRC at 528. The mere invocation of the NRC's pertinent regulations and documents cannot suffice to prove LEA's case. For the controlling regulations themselves are general and permit considerable leeway in their application.

The standard pertinent to contention Vill-8(b), 10 C.F.R.

s 50.47(b)(8), simply states that "[aldequate emergency facilities and equipment to support the emergency response [must bel provided and maintained."Section IV.E of Appendix E to 10 C.F.R. Part 50 specifies what facilities and equipment must be provided - for example, "[a]

licensee onsite technical support center and a licensee near-site emergen-cy operations facility from which effective direction can be given and ef-fective control can be exercised during an emergency" - but gives no details. Various NRC documents cited by LEA flesh out the generalized regulatory requirements of Part 50. See, e.g., NUREG-0654, Rev.1, 37Thus. LEA's generahzed complaint that sts hearing rights under the Atomic Energy Act and the APA were impaired by the Licensing Board's ruling is w:thout merit: it cannot be wrongfully denied a hear.

ing on an issue that it did not raise.

709 l

[

l I

" Criteria for Preparation and Evaluation of Radiological Emergency Re-sponse Plans and Preparedness in Support of Nuclear Power Plants" (November 1980), at 52-55; NUREG-0696, " Functional Criteria. for Emergency Response Facilities" (February 1981); NUREG-0737, Sup-plement No.1, " Requirements for Emergency Response Capability" (Generic Letter No. 82-33) (December 1982) at 17-26; NUREG-0814

" Methodology for Evaluation of Emergency Response Facilities" (August 1981), at 2-1 to 2-15,4-1 to 5-17. But these, too, are general-ized or contain descriptions of the functions the emergency facilities and equipment are to perform, rather than descriptions of the facilities and equipment themselves. In any event, these NUREGs simply serve as guidance for the staffs review and do not prescribe regulatory require-ments, as do regulations like 10 C.F.R. s 50.47(b)(8). Metropolifan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-698,

- 16 NRC 1290,1298-99 (1982), rev'd in part on other grounds, CLI-83-22, 18 NRC 299 (1983).

Finally, the post-hearing appraisal of PECo's emergency facilities by the staff is entirely appropriate. As explained in Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17

.NRC 1076,1103-04 (1983), the Commission relies on predictive find-ings of adequacy in the emergency planning area more so than in other areas. The emergency plan itself need not even be final, so long as it is sufficiently developed to permit a board to make the necessary "reasona-ble assurance" finding. Here, given the substantial staff review that had already taken place at the time of the hearing and the limits inherent in LEA's own contention (see pp. 708-09, supra), the plan was certainly developed enough to warrant the Licensing Board's finding of adequacy, despite the review work yet to be done by the stafT. Indeed, the staff's final evaluation of the emergency facilities here is akin to the staffs post-3 hearing review of a siren warning system, which review we found accept-able in Waterford,17 NRC at 1104-05.38 We therefore conclude that the Licensing Board did not err in refusing to hold the record open pending the results of the staffs final onsite appraisal report.

38 Recognizing that it is not m the record. we nonetheless note in passing that the stafr conducted its ap.

praisal of the onsite emergency plan for Limerick in June 1984 and issued a report two months later, identifying certain required correcuve actions. As pertinent to contenuon v!!! 8(b), the areas indicated by the stafr as needmg correcuve action or improsement involved pnncipally the implementauon of the plan and operability of the equipment. but did not necessitate sigmficant changes in the plan itself. See inspection Report No. 50 352/8418 at 913, PECo responded to the report and the stafr subsequently concluded that PECo's actions and commitments rendered the plan adequate ror low. power operation.

See NUREG4991, supplement No. 3. " safety Evaluation Report" (October 1984) [hereafter.

• ssER-3"), at 13 3 to 13-23. Later the stafr gave its full approval to the overall emergerty plan. See ssER $ Uuly 1985) at 13 3.

710 t 7N

2. The Commission's emergency planning regulations require "[a}r-rangements [to bel made for medical services for contaminated injured individuals." 10 C.F.R. j 50.47(b)(12).3'Section IV.E of Appendix E to 10 C.F.R. Part 50 describes the equipment, facilities, and arrangements for which "[aldequate" provision must be made. Items 6 and 7 are most pertinent here:

6. Arrangements for transportation of contaminated injured indnaduals from the site to spec Ocally identified treatment faahties outside the site boundary;

7. Arrangements for treatment of mdividuals injured in support oflicensed activi.

ties on the site at treatment facilites outside the site boundaryl.]

Ibid. (emphasis added). NUREG-0654, Rev.1, at 69 (Planiling Standard L.1) states that such arrangements should include " local and backup hospital and medical services having the capability for evaluation of radi-ation exposure and uptake, including assurance that persons providing these service's are adequately prepared to handle contaminated individu-als" (emphasis added)

• See also id. at 39 (Planning Standard B.9).

In an effort to comply with these requirements, PECo has arrange-ments with two hospitals f'or the treatment ofindividuals who are con-taminated and injured onsite.' Pottstown hiemorial hiedical Center (PNf5fC) - located about two miles from the plant site and within the 10-mile Limerick emergency planning zone (EPZ) - is the primary re-ceiving point. Through an agreement with PECo's contractor, Canberra Radiation Nianagement Corporation (RNIC), the Hospital of the Uni-versity of Pennsylvania (IIUP) - about 45 minutes away by motor vehi-cle - is intended to serve as the backup facility for treatment of onsite personnel who are contaminated and injured. LBP-84-31, 20 NRC at 531-32. See Appiicant Exh. 32, f f 5.3.2.1,5.3.2.2.

A portion of LEA's admitted contention Vill-12(a) questions the ade-quacy of these arrangements, especially in a " general emergency"*2 39 As used here without dispute. " contaminated mjured" means those who are traumatically mJured and are also contammated with radionuclides on or m their tudies. The Commission had, at one time, genencally expanded the scope of this phrase, but in the wake or an adverse court decrsion (see note

45. mfrat. it is reconsidenns that expanded definition. The usage or the phrase here, however, does not involve the expanded definstion.

M Although NUREG-0654. Rev. l. provides "guidaned isrc pp. 70910 suprai. the Commission itself

~

specifically rehed on and endorsed Plannmg standard I m Southere Cauoreia utsas Co. (san onofre Nuclear Generating station. Umts 2 and 3). CLI 83-10,17 NRC 528, 535 n 9 (1983). rev'd is part on other grounds. GU4RD y NRC. 753 F.2d 1144 ID C. Cir.1985).

di PECo does not dispute the need for both local and backup facilities. See Applicant's Bnef at 39-40.

42 There are four emergency classes. A general emergency is the highest or most serious such category.

See 10 C.F R. Part 50, Appendin E. 6 Iv.C.

711

,7//

i when PNINfC might be required to evacuate.43 LEA argued before the Licensing Board that PECo should be required to make arrangements with a third hospital capable of treating the contaminated injured - spe-cifically one that is less vulnerable to evacuation than PNINIC but closer to Limerick than llUP.

Although a majority of the Licensing Board agreed that "it would be prudent to make more formal arrangements" with a closer backup hospi-tal, it declined to require it. LBP-84-31,20 NRC at 536. Significantly, it did not conclude that liUP is adequately close. Rather, the Board majori-ty reached its judgment on the basis of four other factors. First, it noted

. the probability that PNINIC would be unavailable to receive contaminat-ed injured individuals is remote. Second, it referred to 19 other hospitals in the surrounding three-county area with " claimed capability" for han-dling these patients on an ad hoc basis in an emergency. / bid. Third,'the

^

Board majority assumed that the staffs of PNINIC, RN1C, and flUP can and will provide assistance to one.another in an emergency. Fourth, it

• noted that sheltering, rather than evacuation, is the first option during a general emergency. Ibid.

Judge Brenner, Chairman of the Licensing Board, dissented. Id. at 536-38. lie agreed with his colleagues that evacuation of PNINIC is im-probable, but observed that the Commission's emergency planning regu-lations and guidance nevertheless assume that life threatening releases from a plant could occur, with a corresponding need to evacuate the 10-mile EPZ. In concluding that PECo's medical arrangements for the contaminated injured are not adequate, Judge Brenner pointed out that ifUP is available as a backup only when the trauma victims can with-stand the 45-minute trip to that facility. As for the other 19 hospitals in the area to which the Board majority referred, Judge Brenner found "no reasonable assurance, dJe to the total absence of planning, that any of those hospitals is well prepared to treat such victims, especially if there were to be more than one or two victims." /d. at 537. Putting himselfin 43 In pertinent part, contemion vill 12f a) states:

The onsite plans fail to demonstrate that adequate arrangements have been made, or will be made, for medical services for comaminated injured individuah on site, as required by 10 CFR

( $0 47(b)(2) and (12), m that:

• *

• The plans contain an agreement with Pottstown Niemonal ifospital, a facihty onty two miles from the site. to provide emergency treatmem to contaminated patients. In a general emergency, the hospital will be required to evacuate its own patients. which will preclude accept-ance and treatment of radiation vntims commg from the site. The status of medical support from the llospital of Umversity of Pennsylvama is unclear as well . .These are the oniy two hospitals listed in the Plan as available for medical services to on-siie cortummated victims see NUREG454. Cntena B 9 and L.I.

LEA's Emergency Planmns Contemions at 101l.

712 l

l l

l l

6

I I

i the shoes of a potentially contaminated injured worker at Limerick, Judge Brenner would have required PECo, as a condition for full-power operation of Limerick, to make arrangements similar tc, toose'with PhthtC with a third hospital, "less vulnerable to evacuation, and signifi-cantly more accessible than fiUP." Id. at 538,537.

On appeal, LEA essentially repeats the arguments it made below. It asks that we reverse the Board majority and order further action consist-ent with Judge Brenner's dissent. See LEA Brief at 39-46. On this point,

, we agree with LEA: we are not persuaded that PECo has made ade-quate arrangements for the treatment of certain onsite personnel who are contaminated as well as traumatically injured. For such persons whose traumatic injuries require prompt medical attention, fiUP is too distant to serve as an adequate backup hospital.

The reasons given by the Board majority in declining to require a closer backup hospital do not withstand scrutiny. As Judge Brenner noted..the improbability of PhtSIC's evacuation and consequent una-vailability to receive contaminated injured workers is beside the point.

The Commission's emergency planning regulations are premised on the assumption that a serious accident might occur and that evacuation of ,

the EPZ might well be necessary. See San Onofre. CLI-83-10, supra note 40,17 NRC at 533. The adequacy of a given emergency plan therefore must be adjudged with this underlying assumption in mind. As a corol-lary, a possible deficiency in an emergency plan cannot properly be disre-garded because of the low probability that action pursuant to the plan ,

will ever be necessary. Thus, the Licensing Board majority gave undue weight to the fact that evacuation of PSINIC is remote.

There is also no basis in this record for the Board majority's reliance on the existence of some 19 (by the Board's count) other hospitals in the area, and on the assumption that these institutions are " adequately prepared to serve as a backup to PhlNIC on an ad hoc basis. LBP

• 31, 20 NRC at 535. The Board majority conceded it had "no detailed knowledge of the specific abilities and training of the emergency medical service personnel at these potential alternative receiving hospitals." Ibid.

But it was apparently influenced in this regard by the testimony of PECo's witness, Dr. Roger E. Linnemann, that all accredited hospitals are required by the national Joint Committee on fiospital Accreditation

~

(JCIIA).to have some plan for handling contaminated injured persons.

See id. at 534; Tr. 991214. Of course, on this record the 19 hospitals have not even been identified, much less verified as accredited by the JCHA. In any event, we are inclined to agree with Judge Brenner's ob-servation that, "[ilf JCilA accreditation were sufficient , , there 713

. 7/3

_ . . _ ._ ._ ._ _ ____._ _ m _ - _ _ _ _ . _ _ _ _ _ _ .-_ .

I 1

i i

t would be no rieed to provide [PMMC] with special training and equip-i ment." LBP-84-31,20 NRC 'at 537." Moreover, there is no evidence if

any of these assertedly capable facilities would be willing to enter an

' agreement with PECo to serve as a backup facility. See generally Tr.

. 9843-44,9911-18. The record here simply does not provide any basis for I

the sanguine assumptions about the other 19 hospitals in which the Board majority has indulged."

l Similarly, there is no record basis for the Licensing Board majority's

, assumption that any assistance provided one another by the staffs of *

! PMMC, RMC, and llUP somehow militates against the need for a closer backup hospital. In this connection, it assumes "that in the event i of a hospital evacuation, trained personnel and some equipment would

-travel to the [ unidentified] receiving hospital and' provide assistance."

LBP-84-31,20 NRC at 535. A more reasonable assumption, however, is that, in an evacuation, the PMMC staff would be fully occupied with i relocation efforts. IlUP and its staff would still be 45 minutes away, and ,

RMC is not a hospital.

. The Board majority's findings thus are not supported by the record.

Compare Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB 781,20 NRC 819,833-34 (1984). On the other hand, we find the dissenting opinion of Judge Brenner convincing.

?

2 44 Dr. Lmnemann's own testemony in this proceedmg and others stresses the need for special procedures and trastung to handte patients who are not only traumatically injured but also contaminated by radionu.

l chdes Sec.t o Tr. 9845. 9919-20; Sourhrm C.itiforma EJson Co. (san onofre Nuclear Generstmg sia. -

tion. (Jnits 2 and 3). ALAS 480.16 NRC 127.137 (1982). one can reasonably infer from Dr. Linne-  !

mann's testamony that, before approvmg a hospital for handlms radioactively contaminated patients. he '

would eurect more than just JCH A accreditatwn on the basis of"some type of plan." Tr. 9914. so too.

should the NRC.

" The Distnct of Columbia Circuit's decision in GUARD. supra note 40 - rendered subsequent to the

Licensing Board's deosion here on review -- provides yet an additional reason to eschew ad hoc rehance  !

on these other hospitals. There, the court struck down the Commiwon's determmation m See Geofre.

CLI-8310 that "a simpic hst of treatment facihties already in place" could satisfy the requirement of

. 10 C.F.R. ( $0.47(b)(12) for "talrrangements . . . made for medical services." 753 F.2d at 1146. The l court found that this planning " starts and stops with a list." The actual medical services for radiation i

esposure would be " arranged entirely ed hoc g/rer the onset of an emergency." M at 1849 (emphasis in orig!nal). In oserturning this interpretation the court stated. "A provision calkng for pre event ar.

rangements is not sensibly met by post-everit prescriptioris." /bd. The court went on to rebuff efforts to show certain arrangements were adequate in the absence of any record evidence to that effect. and to reject generalized assumptions about the availabihty of adequate facihtees to serve victims of a rad ologi.

cal emergency. M at i149 50.

To be sure, there are ddTerences between GUARD and the instant case. The Commission's Sas

! Onofir interpretation was rendered in the contest of its consideration of medical arrangements for per.

f sons n/fsne exposed to dangerous levels of radiation (not just contaminated). Neiertheless. section 50.47fb)(12) apphes to both nnsite and olisite emergency planning. See 10 C.F.R. 5 50.47(b). The court's common sense construction of these same words - albeit in a different contest - cannot rea-

! nonably be disregarded. The message is clear

• if a list of facihties is not an "arrarigement." the Licens-

ins Board majonty's takmg notice of the eustence of 19 unidentified facihties cannot sufrece either, even as a backup.

4 i 714 t

i C

l l

l I

l

_ - - _ _ _ - - _ _ _ _ _ .-- 78

As he noted, all parties agree that "it is prudent and proper medical prac-tice that a hospital being relied upon for treatment of traumatic injury, contaminated or not, be reasonably close (accessible) to the plant."

LBP-84-31, 20 NRC at 537. See Tr. 9844-45,9906,9929-30. And PECo acknowledges that "prudency" is the proper standard by which to meas-ure emergency provisions. Applicant's Brief at 43. See San Onofre, CLI-83-10,17 NRC at 533.

Applying that standard in the circumstances here, our judgment is that, for the treatment of certain traumatic injuries where time is of the essence (such as a serious injury to the head or a heart attack), reliance on a backup hospital 45 minutes away is not prudent." This is not a sparsely populated, rural area with limited medical facilities. In such a case, a 45-minute trip to the hospital might well be acceptable as the only alternative. But here, all agree that numerous other options exist and that "it would be prudent to have at least skeletal arrangements with a hospital between PS151C and ilUP." L'BP-84-31,20 NRC at 537 (Brenner, dissenting). The Commission's emergency planning regula-tions do not require " extraordinary measures." GUARD, 753 F.2d at i150 n.7. On the other hand, we think it reasonable - indeed, prudent

- to expect an applicant to pursue the existing options in an effort to comply with those ' regulations. We therefore reverse the Licensing Board's decision, in part, and remand for further proceedings to consider alternative options."

One matter remains - the effect of our decision here on the full-power operating license recently issued by the Commission to PECo. See CLI-85-15, 22 NRC 184 (1985). Although we have concluded that PECo's onsite emergency plan is inadequate in one respect, the Com-mission's emergency planning regulations contemplate such an even-tuality. Under 10 C.F.R. s 50.47(c)(1), failure to satisfy the emergency planning standards in section 50.47(b) "may result in the Commis-sion['s] declining to issue an operating license" unless one of three fac-tors is demonstrated:

" It is not clear from the record whether this 45-minute distance' took into account the inevitable traf-rc congestion that would occur in a general emergency during which evacuation is ordered. See Tr.

9844. Moreover. helicopter transport was not considered an option in this circumaance. See LBP 84

31. 20 NRC at $34 n.16,537 n.17. 540.

C we do not impose any particular requirements on PECo's arrangements for adequate backup medical services for persons who are contaminated and injured onsite. We simply espect PECo to emptore the entire range of reasonable options addreued to the concerns raised by LEA's contention. Thus. the facility selected should lie beyond the area subject to potential evacuation, but should otherwise be as close as possible to Limerick. This could even include HUP t/ arrangements for a sigmricantly shorter transport time ifor ezample. by air) could be reasonably assured.

715 7/S

.__u___ _ _ _ _ _ _ _ . _ . . _ - _ . _ _ . _ _..__. _ _ -

I l

i that deficiencies in the plans are not significant for the plant in question, that ade-quate interim compensating actions have been or will be taken pron ptly, or that there are other compeihng reasons to permit plant operation.

We need not look beyond the Orst alternative criterion. In our view, the deficiency in PECo's emergency plan identified here is not so signifi-cant as to warrant license suspension. Primary medical arrangements for contaminated and injured onsite personnel have been made and found adequate. All that is lacking are backup arrangements with an additional hospital closer to the site than HUP for those contaminated persons whose traumatic injuries require immediate medical attention. More-over, the deficiency is not a permanent one. Although we prescribe no schedule, we trust that the Licensing Board and the parties (particularly, PECo) will act as expeditiously as possible in response to our remand, and that complete and adequate backup medical arrangements will be in place'soon. In these circumstances, license suspension is not warranted."

II. AWPP'S APPEAL AWPP's arguments on appeal challenge the Licensing Board's disposi-tion, after hearing, of two AWPP contentions. One concerns the poten-tial for aircraft carburetor icing caused by water vapor emissions from the Limerick cooling towers. The other contention raises questions

. about the effectiveness of PECo's quality assurance program. After review of th'e record and the arguments presented here, we conclude that there is no basis for overturning the Licensing Board's decision in either of these areas.

A. Aircraft Carburetor Icing AWPP's contention V-4, raised as an environmental issue under NEPA, states:

Neither the Appheant nor the Staff have [ sic) adequately considered the potential for, and the impact of, carburetor icmg in aiteraft Dying into the airspace that may be affected by emissions from the Limerick coohng towers.

4s We note that the court in GU4RD. apra note 45 did not direct the Commission to suspend the operating licenses ror the san Onorre racihty, despite its deterministion that the requirements or 10 C F.R. t 50.47(bH12) had not been rutfilleJ. And in a pokey statement issued in response to the court's remand, the Commission explicitly approved intenm reliance on section 50.47(c)(1) as a means to ad-dress the ofTsite emergency ptanning problem identiried in GU.4RD Sec 50 Fed. Reg. 20.892.

20.893 94 (1985). Our determination not to suspend PECo's operatmg hcense here is thus consistent with both the court's and the Commission's actions in a similar circumstance.

716

[ -

N'

(

AWPP Motion to Reword Contention V-4 (September 26,1983). The Licensing Board succinctly explained that "[clarburetor icing is a well-recognized hazard to carburetor-equipped aircraft [,] . caused by water vapor free. ting in the carburetor . . . If permitted to accumulate, the ice can 'cause ' degrading engine performance to the point of failure." LBP-84-31, 20 NRC at 454. The Limerick facility uses two natural draft hy-perbolic cooling towers to remove waste heat from the plant. About 35

^

million gallons of water vapor will be released per day from the towers, creating both visible and invisible plumes. Smith and Seymour, fol. Tr.

6234, at 5. AWPP fears that these emissions will cause carburetor icing in aircraft Dying in the vicinity of the plant and that inexperienced pilots, in particular, will be unable to deal with this potential problem.

The Licensing Board held Gye days of hearings on contention V-4, at which several winusses for PECo and the staff (including meteorologists and pilots) testilled. AWPP also presented testimony from one witness, ,

its lay representative, who is a chemist and pilot. The Board concluded that contention V-4 lacks merit. Specifically, the Board found that PF,Co, "without any reasonable contradiction, has established by the overwhelming preponderance of the evidence that the Limerick cooling tower plumes will not have temperature and moisture conditions signifi-cantly (lifferent from the ambient air beyond a quarter mile from the tower." LBP-84-31, 20 NRC at 456. Within a quarter mile, a plane would pass through the area "in a matter of seconds - much too soon for hazardous carburetor ice to accumulate." Id. at 462. The Board stressed that these findings are based on several conservative assump-tions - among them. the " unrealistic" assumption that a pilot could or

~

would do nothing to present or remedy carburetor icing, if encountered.

/ bid. In this regard, the Board noted that 99 p:rcent of the carburetor air-craft flown en the Limerick area are equipped with carburetor heat sys -

tems., By use of these-syst' ems and proper flight procedures, a trained pilot could avoid carburetor icing problems. Id. at 462-64.

AWPP attacks the Licensing Board's decisicn on several grounds: Es-seatially, it contends that the plump of water vapor emitted from the Limerick coohng towers cxtends 'over a greater distance and poses more of a hazard to aircra'fr.in the vicinity than acknowledged by the Board.

AWPP also asserts tiiat detection of carburetor icing is d;flicult because most planes do'n6t have gauges to indicate icing, and the symptoms of icing can be confused with those of other aircraft failures. Thus, ificing cannot be readily detected, pilots (especially those who are inexpe.

ric:'ced) cannot always respond quickly enough. AWPP, in addition, ob-jects to certain aspects of the Board's decision on procedural grounds.

We Snd none of AWPP's arguments, however4 convincing.

s i

717

AWPP Grst argues that PECo and the Board improperly relied on data generated by the 1981 Thomson-Pennsylvania State University study of cooling tower plume behavior. The results of that study show that, beyond a quarter mile from the towers, the temperature and humidity within the plume are indistinguishable from those of the ambient air. /J.

at 458. In AWPP's view, the towers used in that study (at the Keystone power plant in western Pennsylvania) differ from those at Limerick, making any comparison unreliable. AWPP also asserts that the purpose of the Thomson study ..as not to study the issues it regards as critical

, here - i.e., invisible plumes and the distances traveled by such plumes.

Finally, AWPP complains that PECo's witnesses did not perform the Thomson study themselves.

The Licensing Board correctly determined that the results of the Thomson study are valid for Limerick. The evidence and testimony cited by the Board, and not contradicted on this record, show that the ap-plicable weather and topographical conditions at' Limerick and Keystone are quite similar, and the difference in cooling tower height would not affect plume behavior. Both v:sible and invisible plumes were tested by airplane flights cutting across and through the plumes at various altitudes and distances up to 10 miles. See id. a't 458-59. See also Smith and Sey.

mour, fol. Tr. 6234, at 5-6. -

The fact that PECo's witnesses themselves did not perform the Thom-son plume study does not detract significantly front the weight properly accorded to their testimony or render the results of the study invalid.

We held long ago that an expert witness may testify about analyses per-formed by other experts. See Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319,332 (1972), where we observed that "[aln expert is, of course, not expected to derive all his

[or her} background data from experiments which he [or shel personally conducts; if that were required, scientific experts would rarely, if ever, be qualified to give any opinion on any subject whatsoever." Expert tes-timony that relies on the work of others is essentially hearsay. Hearsay, however, is generally admissible in administrative proceedings, provid-ing its reliability can be determined - usually through questioning of the witness giving the hearsay. Id. at 332-33. See Duke Power Co. (Wil-liam B. McGuire Nuclear Station, Units I and 2), ALAB-669,15 NRC 453, 477 (1982). Here, PECo witnesses Maynard E. Smith and David Seymour (experienced meteorologists and, in the latter case, a holder of

a. commercial pilot's license) were subject to considerable cross-examination by AWPP at the hearing. AWPP thus had a fair opportunity to discredit their testimony and reliance on the Thomson study. But as noted above, AWPP failed to do so.

718 n lM

i AWPP similarly objects to the Board's reliance on the results of an ex-periment conduc'.ed on the ground with an automobile engine an1 air-plane carburetor. See LBP-84-31, 20 NRC at 461; Smith and Seymour, fol. Tr. 6234, at 9. AWPP contends that the study's results are invalid because it was not done with an airplane in flight. It also complains that PECo's witnesses did not take part in these experiments, which were performed by other individuals (Gardner and Moon). We have already determined, as discussed above, that PECo's experts may testify about the experiments of others. As for the study itself, its purpose was to ac-cumulate the greatest amount of carburetor ice in the least amount of time - i.e., the worst possible conditions - in order to determine vari-ous power losses over intervals of time. As explained by witness Sey-mour, creating a,ndimaintaining the conditions most likely to cause car-horetor icing are more easily accomplished in a laboratory environment.

He also stressed that hhile the type of engine used is~not important, the use of an airplane carburetor to simulate aircraft behavior is necessary, given the purpose of the experiment. Tr. 6507-09. Thus, the worst case scenario created in this laboratory experiment provided more conserva-tive, and therefore more reliable, results than could have been achieved in the manner AWPP suggests.

AWPP repeatedly argues that PECo's and the staffs testimony about aircraft and pilot response to carburetor icing is contradictory; that it is

'no't fact, but only opinion; and that, therefore, the Board's decision is not baed on "'beyond-a-reasonable-doubt' fact." Appeal of Air &

Water Pollution Patrol (October 10,1984) [hereafter, "AWPP BricP'] at

15. We have reviewed the record, along with these claims, and disagree with AWPP. The Licensing Board's decision fully and accurately summa-rizes the written evidence and oral testimony adduced at the hearing.

See LBP-84-31,20 NRC at 454-64. No purpose would be served by our rehearsal of it here. Suffice it to say that we do not see the asserted con-tradictions in the testimony perceived 1.y AWPP." We see instead a

" For example, one such contradiction upon which AWPP dwells is asertedly found in the tes* cony of stafr witness Bernard Geier, Manager of the General Aviation and Commercsal Division, ot .ce of Flight operauons. Federal Avianon Administrauon. AwPP points to Geier's statement that

• ice can form instantaneously." claiming it contradicts PECo*s testimony that it would take approtimately eight minutes (without carburetor heat) for enough cuburetor ice to form to cause a hazard to the aircraft See Geier. fot Tr. 6883 at 2; smith and seymour, fot Tr. 6234. :t 9. Geier's complete testimony on this matter, however, states "Although ace can form instantaneously under the proper condinons. it dars not occumulare at such a raw that the pilot who pays attenuos to the signs cannot prevent engine stoppage due to blocking by ice of the carburetor themat " Gener, fot Tr. 6883, at 2 (emphaus added).

As can be seen. the statements are clearly recone'

• n it w not the mere formation of ice that is sigmri-can* for ice can form and quickly melt un# w en climatic conditions. What is signiricant is the buita > of ice and the rate at which it de@cte 'i a wat not able to set a ume frame within which enough ice could accumulate to caur

• 3 0 3. F ! acknowledged that he had no basis for disputing (Conturued) 719 s

b i 7/L

record well developed by the testimony of the expert witnesses presented by PECo and the staff.S On the other hand, AWPP's evidence is more anecdotal than empirical, and, despite AWPP's protestations to the con.

trary, neither it nor AWPP's cross-examination seriously challenged the testimony of the PECo and staff witnesses. See, e.g., Romano, fol. Tr.

6725.58 AWPP's objection that the witnesses testified about their opinions rather than the facts is unavailing. Expert testimony, such as that here at issue, is typically a mixture of scientific principles (known to the expert through his or her training and experience), data derived from analyses or by perception, and the expert's opinions based on these principles and data.52 It is the Licensing Board that must " find the facts" based on the whole record, which includes not only the proffered expert opinion but also any contrary evidence (including opposing opinion):liere, the Board found the expert opinion testimony of PECo's and the staff's. wit-

- nesses to t e convincing and unrefuted. To be sure, AWPP disagrees with these conclusions, but it has l' ailed to demonstrate that the Board's decision does not comport with the record or is unreasonable. Moreover, contrary to AWPP's view, the Board measured the evidence by the cor- ,

rect standard of proof. - a preponderance of the evidence. See, e.g.,

LBP-84-31, 20 NRC at 456. See also Commonwealfh Edison Co. (Zion Station, Units I and 2), ALAB-616,12 NRC 419,421 (1980).53 AWPP's "due process" . arguments are likewise without merit.

AWPP's representative contends that he "was not given [his] legal right ,

to cross examine as [hisl own witness as Judge Brenner had, before the hearings, told [him he] would have." AWPP Brief at 5. We fail to com-prehend what AWPP's point here is. What is clear, however, is that AWPP was given more than ample time for cross-examination of

. PECo*s testimony on that score. Tr. 7002-03. His principal point was that aircraft are equipped with the means, and pilots are routinely trained, to prevent and elimmate carburetor icing before it accumulates to a hazardous level. Geier, fol. Tr. 6883. at 2-5.

MAm noted by the Licensmg Board and not challenged by AWPP, the credentials of the five PECo and stafr witnesses are impressive. All are expenenced meteorologists and/or pilots. one t's also a nuclear ensmeer. See LBP-84-31,20 NRC at 455.

51 AwPP refers to and submits with its bnef on appeal several articles and other references that are not in the evidence of record before the Licensing Board. It is well-settled that, as an appellate tribunal, we must judge appeals on the basis of the record developed at the heanns below. Pwnu Rsco Drctrir Poner AwAnnry (North Coast Nuclear Plant. Unit D, ALAB-648.14 NRC 34. 36 (198D. Consequently. the additional matenal suppised by AW PP is not properly before us and will not be considered.

52 Rule 702 of the Federal Rules of Evidence - to which we have prenoudy turned for guidance - spe.

cirically provides that an expert witness may testify "in the form of an opinion or otherwise." See McGuer,15 NRC at 475.

53 The "beyond a reasonable doubt" standard urged by AWPP apphes in enmmal, not civil or admm.

istrative. proceedmss. See McCormd on &idency (( 339. 341,357 Od ed.1984L 720 e _,, - 17 ' )

PECo's and the stalTs witnesses, as well as time for presentation of its own case. See Tr. 6252-6433, 6442-6529, 6685-6713, 6716-23, 6899-6914, 6920-7090, 7109-20; Romano, fol. Tr. 6725; Tr. 6853-56.9 We discern no way in which AWPP's right to cross-examination was im-paired.

AWPP also charges that the Licensing Board was personally biased agair.st it. Evidence of this bias, according to AWPP, can be found in the Board's reference to "an unfortunate apparent inability [by AWPP's representative] to understand the testimony." LBP-84-31, 20 NRC at 459. AWPP also cites other Board statements to the elTect that AWPP did net contradict certain PECo testimony.

We believe AWPP is overly sensitive about language commonly used in legai proceedings and opinions. There is no indication, in either the Board's decision or the lengthy transcript, of any bias whatsoever on the part of the Board. In fact, the Board took due account that AWPP was not represented by counsel and was quite indulgent of the shortcomings in AWPP's participation at the hearing. The Board comments,to which

- AWPP takes offense are consistent with the record and merely reflect the Board's judgment concerning the persuasiveness of' the respective positions of the parties. We perceive no personal disparagement and we believe none was intended. As the Commission recently observed, "the right to an impartial adjudicator does not mean that favorable rulings must be divided equally between the parties, or that a judge may not occasionally use strong language toward a party or in expressing his [or

%er) views on matters before him [or herl." Metropoliran Edison Co.

(Three Mile Island Nuclear Station, Unit 1), CLI-85-5, 21 NRC 566, 569 (l985), all'd sub nom. Three Mile Island Alert, Inc. v. NRC,17i F.2d 720 (3d Cir.1985). In any event, disqualifying bias must stem from an extrajudicial source - that is, it must be based on something other than -

what the adjudicator has learned from participating in the case. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), CLI-82-9, 15 NRC 1363,1365 (1982). AWPP has alleged no extrajudicial source for the Board's asserted bias and.we see none.

AWPP complains that witness Geier was permitted to correct certain errors in his prefiled testimony. Such changes are routinely made at the beginning of a witness's testimony, in order to correct typographical and H indeed. our review of the heanng transcript mdicates that the Board was extreme'f generous in its al-lotment of time to AWPP ror crosvetamination. especially in light of the disorganued and confusing questioning of the witnesses by AWPP's representative. The Board aho gave A% PP a second chance to submit a cross-exammation plan for PECo's witnesses, arter it faded to do so imtially. See Licensms Board Memorandum and order of December t.1953 (unpublished). at 8.

721 l

l

{

i l

i

- 1

I other errors as well as to update the testimony." The corrections to Geier's testimony were necessary to reflect a recent change in trafTic pat-terns at the Limerick airport. Tr. 6884-85. Inasmuch as AWPP had an opportunity to cross-examine Geier, there is no basis for its not fully de-veloped claim of error.

Finally, AWPP asserts ..iat its contention V-4 has merit and requires "special attention." AWPP Brief at 14. The record and Licensing Board's decision unequivocally show that this contention got special at-tention. The Board initially denied PECo's motion for summary disposi-tion and went on to hold Dve days of oral hearings on this issue alone.

See Licensing Board Memorandum and Order of November 8,1983 (unpublished), at 3-8. We have now reviewed the matter further. The "hard look" at environmental issues required by NEPA has been fully satisfied. See Natural Resources Defense Council. Inc. v. Morton,45f . 2d 827, 838 (D.C. Cir.1972). Moreover, we agree with the Licensing

, Board that the record shows that water vapor emissions from the Limer-ick cooling towers will not cause a signincant carburetor icing hazard to aircraft.56 Thus, contention V-4 is without merit.

, B. Quality Assurance-A chronology of AWPP's quality assurance (QA) contention VI-l is necessary to an understanding of the arguments AWPP raises on appeal." As originally proffered, the contention stated:

Applicant has failed to establish and carry out an adequate quahty assurance program as required by Appenda B of 10 CFR Part 50. This is shown by a pattern of careless workmanship, departure from specified procedures, together with faulty inspection and supervision in the construction of Units I and 2 of the Limerick Generating Station.

It went on to refer to, among other things, unspeciGed defects in con-crete, record keeping infractions, the failure to follow proper welding AWPP's witness was afforded such an opportumiy with respect to his prefiled statement. See Tr.

6723 25.

56 It is important to keep in mmd that the Licensing Board did not find that aircraft could never be placed in a hazardous situation by carburetor scing. LBP-84-31,20 NRC at 464 It properly recosmied that such a circumstance is pnssible. But the Board stressed first. that the conditions in the plume

' (simply a man-made cloud) most likely to be encountered by aircraft in the area are virtually mdistin-guishable from the condmons naturally present in the air. and, second. that routine procedures and means esist for pilots to prevent or eliminate icing. In other words, the Limenck emissions pose no greater threat of carburetor icing than already exists.

"The NRC requires an appbcant to have a quahty assurance program to ensure that a plant ard its parts are designed and constructed or fabricated en accordance with acceptable standards. The necevey elements of a QA program are set forth in 18 cnteria specified in 10 C F R. Part 50. Appendix B.

722 W

procedures, the efTects of quarry blasting, and inadequate corrective ac -

tions. The basis of the contention was a list of NRC inspection reports and related correspondence from 1976-1978. Supplemental Petition of Coordinated Intervenors (November 24,1981) at 74-75. Noting the im-portance of an efTective QA program to the safety of a plant, the Licens-ing Board conditionally admitted this contention in 1982 (except insofar as it concerned the efTects of quarry blasting), " subject to the develop-

. ment _of specific contentions and their bases." LBP-82-43A,15 NRC -

1423,-1518 (1982). See also Licensing Board Memorar.dum and Order of July 14,1982 (unpublished), at 6. After several months of informal discovery, the Board . set a time for the filing of such specifications.

Licensing Board Memorandum and Order of February 10,1983 (unpub-lished), at 6.

AWPP accordingly submitted a revised version of contention VI-l. It still asserted, in general terms, a pattern of careless workmanship and lack of quality assurance during the construction of Limerick. The basis for the contention, however, dealt principally with various welding defi-ciencies discussed in several NRC inspection reports. See Letter to Licensing Board from J.A. Dorsey (April 12, 1983), Enclosure ("VI.

Quality Assurance / Control") [hereafter, "AWPP Revised QA Conten-tion"]. After a special prehearing conference, the Licensing Board reject-ed the contention. The Board stressed the importance, in litigating QA problems, of showing either existing construction defects or a pattern of related deficiencies, rather than merely existing assorted noncornpliances over the years. Despite the additional information supplied by AWPP,

"[t]he Board could perceive no particular pattern from the allegations or summaries of reports in the contention." LBP-83-39, supra note 8,18 NRC at 89. Nonetheless, it expressed some concern about whether PECo's corrective action for certain defective welds identified in the staff's Inspection Report No. 50-353/76-06 (November 10,1976) was adequate. The Board, however, believed this matter could be resolved easily by appropriate affidavits and made its rejection of revise'd conten-tion VI-l subject to these forthcoming assurances from PECo. Id. at 89-91.

The information provided by PECo was not quite what the Board ex-pected. See Tr. 4610-14. Thus, following AWPP's request for reconsid-eration and subsequent discussion at a prehearing conference, the Board reversed its decision and admitted contention VI-l in part, reworded as follows:

Applicant has failed to' control performance of welding and inspection thereofin ac-cordance with quality control and quahty risurance procedures and requirements.

723

/J1

}

and has failed to take proper and effective corrective and preventive actions when improper welding has been discovered.

The Board also directed AWPP, after further discovery, to file a list of all the welding deficiencies (including those relating to inspection' and correction) it believed were pertinent to the contention, and to identify the reports or other documents relevant to each such instance. The Board stressed that AWPP's case on the merits would be limited to the instances set forth in the list. As for the remainder of the contention that did not concern welding (for example, the part alleging improper placement of concrete), the Board found no basis for it and therefore confirmed its earlier rejection of this matter. Licensing Board Memoran-dum and Order of October 28,1983 (unpublished), at 5-7.

~

AWPP submitted a list of approximately 35 instances of welding "in- '

fractions."58 In response to PECo's motion to strike certain items on the ' ,

list, the Board struck some parts as beyond the scope of the contention and retained others. Licensing Board Memorandum and Order of April 2,1984 (unpublished). Litigation of the contention consumed about four days of hearing. Witnesses testified for PECo and the staff and were cross-examined by AWPP. The direct testimony offered on behalf of AWPP, however, was rejected for the reasons set forth in Licensing Board Memorandum and. Order of May 2,1984 (unpublished), at 1-6.

At the conclusion of the hearing, the Board announced its tentative judg-ment that PECo had overwhelmingly met its burden of proof on the con .

tention. It thus determined there 'was no need for PECo to file proposed

• findings of fact and conclusions of law. The Board deferred final ruling, however, in order to give AWPP an opportunity to file its proposed find-I ings. Tr. 11,046-60.

~ ~

After receipt of AWPP's findings,~the Board heard oral argument and ruled from the bench that contention VI-l lacked merit. See Tr.

11.915-94. It later confirmed this ruling in its'second partial initial deci-sion. LBP-84-31,20 NRC at 511. The Board noted that,' although some .

welding defects had been discovered among the two million safety-related welds at Limerick, there was no evidence of a pattern of such deficiencies, so as to suggest a breakdown of the Limerick QA program.

Id. at 512-13. The Board also expressed its satisfaction with the truthful-ness of PECo's witnesses and with the corrective actions undertaken by PECo. Id. at 512.

58Although it is not dispositive or AwPP*s spreal we note that AwrP's list (dated March 5.1984) is techmcally not part or the ofricial record in this proceeding. This document has no certificate or service and was not served on either us or the Commission's secretary. See to C F R. { 2.701.

724

/

- m -

?> ,

AWPP raises essentially four arguments on appeal from the Licensing Board's decision on contention VI-1 We address them in turn, finding each without merit.

1. AWPP Grst objects to the Board's rewording ofits contention so as to focus only on welding matters. In its view, the Board " emasculated the force of the contention" - i.e., a p'attern of carelessness during con-struction of the plant. AWPP Brief at 16. Apparently, AWPP intended to litigate an asserted overall breakdown in the Limerick construction

' quality assurance program. But if the Board committed any error, it likely was in admitting the contention in the first place.

In our view, AWPP's original contention (see p. 722, supra) lacked the basis and speciGeity required by the Commission's Rules of Practice.

See 10 C.F.R. { 2.714(b). If AWPP sought to litigate a complete break-down in QA, then surely more of a basis was required than a few NRC inspection reports identifying discrete deficiencies. See genera /(v Louisi-ana Power & L(ght Co. (Waterford Steam Electric Station, Unit 3),

ALAB-812, 22 NRC 5,16-44 (1985). The Licensing Board essentially recognized this by condaiona!(v admitting the contention, subject to

. greater specification in the future. See LBP-82-43A,15 NRC at 1518. A short time later, however, we held the conditional admission of any con-tention to be una6thorized under the Commission's rules. Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-687,16 NRC 460, 467 (1982). On review of that decision, the Commission held further that the admission of contentio'ns after the time specified in the Rules of Practice was to be determined by balancing the five " late contention" factors in 10 C.F.R. s 2.714(a)(1). Id., CLI-83-19,17 NRC 1041,1045

~

(1983). Thus, the Licensing Board's subsequent admission and litigation of AWPP's contention VI-l in any form - without balancing the five factors in section 2.714(a)(1) - afforded AWPP greater participatory

. rights than those to which it was strictly entitled."

But even if the conditional admission of contention VI-l were author-ized, we see no error in the Board's limiting ofits scope to possible weld-ing deficiencies. When AWPP submitted its revised contention in April 1983, its focus was clearly on welding. See AWPP Revised QA Conten-tion at 1-4. After the Board's conditional rejection of the revised conten-tion in LBP-83-39,18 NRC at 88-91,d AWPP successfully sought recon-M indeed, the Licensng Board gave AWPP several gratuitous opportunities to conrnrm its Q A conten-tion to the Commission's basis and speciricity requirements.

M AWPP seems to interpret certain language in that decision (LBP-83-396 as unrairly critical or AWPP's reliance on NRC stafinnspection reports. It argues that the Licenang Board's comments in this regard show the Board's bias against AwPP. AWPP Bner at 1819. AW PP. however, has misunderstood rCoriturued) 725 m,.

.m . _ _

.m - - . - ._ _

1 sideration, again raising concerns principally with welding. See Letter to Licensing Board from F.R. Romano (August 5,1983), Enclosures. The  ;

only other articulated issue that AWPP repeatedly tried to raise (includ-j- ing here on appeaD concerns certain defects in concrete placement at i- the site. But as the Licensing Board noted, AWPP's representative had raised this identical issue several years earlier in a petition to the NRC's Director of Nuclear Reactor Regulation. The matter was thoroughly in- ,

1 vestigated, and the stafT was ultimately satisGed with PECo's resolution l i of the problem. DD-7916,10 NRC 609,610-11 (1979). When pressed by the Board, AWPP was unable to provide any new information con-cerning possible concrete defects; it simply expressed its belief that the matter had not been fully corrected. See Tr. 4883-94,4911-12. In these circumstances, the Board's admission of a contention limited in scope to

welding matters was fullyjustined. See Tr. 4610-14,4912-19.

. 2. AWPP-argues that the Licensing Board prejudged its case when

the Board " arbitrarily". dispensed with the need for PECo to file pro-j posed Ondings of fact and conclusions oflaw. AWPP Brief at 19. We dis-agree. At the time the Board announced its tentative judgment' that PECo had overwhelmingly met its burden of proof and thus relieved

, PEC,o of the obligation to Gle proposed findings and conclusions, the Board had already heard all of the evidence presented on contention VI-1. Tr.11,046-48. Given the completeness of the evidentiary record at this point, prejudgment on the part of the Board was not possible. The

Board simply gave its preliminary assessment of the evidence of record and eliminated a round of Slings (PECo's proposed findings and conclu.

sions) that would have been superfluous in the circumstances.

More important, the Board explicitly stated that its de'ermination was only tentative, and it strongly urged AWPP to file proposed Gndings and l conclusions of its own. Tr. 11,048-60. AWPP did so and presented oral argument to the Board as well. See Tr. I1,915-94. Thus, AWPP was, in f

the Board's statements. The Board does not state that an intervenor can never properly rely on staft documents hke inspection reports. Rather it states that "the mere recitation of marriated adverse find-ings' in such reports "does not supply information on what sperc/lrally would be litigated." It is too

" broad" and "unrocused." But where "porttrular allegations of sprer/1r patterns of Q UQC lquahty con-troll problems" are shown through the use of stairinspection reports. such matters can and wdl be con.

sidered and. if justified, litigated. LBP 83-39,18 NRC at 89 femphans added). Cf Warreford ALAB 812. 22 NRC at 14.17 & n.7 istaff documents are generally acceptable evidence to support motson to reopen on Q A).

i A% PP also claims bias m the Board's conditional rejection of its revised contention and in an assert-edly possbiy inaccurate statement by the Board. AWPP Brief at 19. As noted at p. 721. supra. unfavora.

ble rulings do not estabhsh bias on the part of the adjudicator. Nor do enadvertent and possibly inaccu.

rate statements. Moreover, in this instance, the Board reversed itselfin response to AWPP's request for reconsideration and admitted the contention on weldmg. oiven the Board's dogged pursuit of this

matter and the many opportunities afrorded AwPP (src pp. 722 24 and note 59. supra) the latter's

• I claim of bias is parta ularly groundless.

f 726 5

J

- ,_ y, , . _ _ . . _ , ~ . - -.m-_. - - _ _ _ . . --. _ . , ~ .. . _ - . - . . _ . _ . _ .% . _ . _ _ _ _ . . _

m_ _ _ m ._ =_. u. ._ . _ _ _ _ . . - . . - _.

fact, afforded a full and fair opportunity to be heard. Finally, the Com-mission's Rules of Practice provide licensing boards with considerable flexibility to regulate the course of a' hearing and designate the order of procedure.10 C.F.R. (( 2.718(e), 2.731. See Metropolitan Edison Co.

(Three hfile Island Nuclear Station, Unit 1), ALAB 772,19 NRC 1193, 1245-46 (1984), rev'd in part on other grounds, CL1-85-2, 21 NRC 282 (1985). Although the rules set forth a general schedule for the filing of proposed findings, licensing boards are authorized to alter that schedule or to dispense with it entirely. See 10 C.F.R. j 2.754(a). The Licensing Board's actions here are therefore entirely consistent with the Rules of Practice."

3. AWPP disputes the Licensing Board's finding that "[t]he circum-stances relating to two structural weld deficiencies . . have been fully and truthfully described in the Applicant's and Staff's testimony." See LBP-84-31,20 NRC at 513. The welds in question - performed during

. carly plant construction - were in an area not readily accessible; in order to reach the area, the welder attached the electrode holder to a broomstick - hence, AWPP's characterization of this. incident as the

" Broomstick Affair." An NRC inspector discovered these welds in 1976 and concluded that the welder who had done them was not qualified to use this " extension" technique. PECo, however, disagreed with the NRC inspector's interpretation of the pertinent codes and standards.

After closer visual inspection, the NRC found the welds themselves to be unacceptable, despite earlier acceptance by a quality control (QC) inspector for PECo's architect-engineer and constructor, Bechtel Power Corporation. PECo subsequently repaired the welds and reinspected all the accessible structural welds that had been inspected by the Bechtel inspector who had accepted the " broomstick" welds. Boyer, et al., fol.

Tr.10,321, at 40-41. PECo also issued a directive prohibiting the unauthorized use of electrode extensions and provided additional train-ing for all QC and field welding personnel. Durr and Reynolds, fol. Tr.

10,977, at 18-20.

• l'One aspect of the Board's conduct of the proceedmg. though not challenged by AwPP. warrants some comment. After receiving AWPP's proposed rmdmgs and the rephes of the stafr and PECo. the Board issued its final ruhng on contentio,e VI-l orally from the bench. See Tr. 11.915-94. Fonunately.

the Board later conrirmed that rutmg in LBP 84 31,20 NRC at 511 13. for the Commission's rules re.

quire an initial decision to be in wnting.10 C.F.R. ( 2.760fst The Board's discussion of contention v!-l m LBP-84 31. however, is bnef, supplemented with many references to the traitsenpt of its bench ruhng. Although it is not legally deficient. this method of dectuonmaking in complicated NRC licensms heanngs has some sign ficant drawbacks and should be avoided. For one thms - as is evident from this case - a board's bench ruling proudes many opportumties for interruption and argument by the parties.

As a result, such a tramcript is hard to follow and counterproductive to meanmsful appellate review.

727

According to AWPP, however, the testimony of PECo's witnesses (es-pecially Boyer and Clohecy) in this regard was not truthful.62 AWPP pro-vides no references whatsoever to this claimed untruthfulness at the hearing, but directs our attention, instead, to portions of an earlier depo-sition by these individuals, assertedly showing their " evasion." AWPP Brief at 20. The deposition, however, was not admitted or introduced into evidence in this proceeding and therefore cannot be relied upon.

See note 51, supra. AWPP's reliance on this extra-record material is par-ticularly inappropriate here, where the deponents were available for, and subject to, lengthy cross-examination by AWPP. See Tr. 10,456-617, 10,644-75, 10,683-719, 10,728-98, 10,816-30, 10,841-927. Moreover, the Licensing Board speciGeally reminded AWPP's representative that the deposition was not in evidence but could nonetheless be used to question the witnesses. Tr. 10,602-04. Thus, AWPP had an opportunity to establish the witnesses' " untruthfulness" on the record, having failed, it cannot now attempt to do so on the basis of material not in the rec-ord.*8 ~

i AWPP does not otherwise directly attack the evidence adduced by PECo and the staff concerning the various welding deficiencies specified by AWPP in advance of the hearing. See p. 724, supra. AWPP implies, however, disagreement with the Licensing Board's conclusion that these deGeiencies are isolated nonprogrammatic, and. particularly given their source. in general. in-dicatise of the effectiveness of the Limerick QA program. There has been no

" breakdown"of the Limerick Q A program for welding.

LBP-84 31,20 NRC at 513. AWPP further suggests that PECo manage-ment " condoned" improper welding procedures. AWPP Brief at 20. But we have reviewed the testimony and fully agree with the Board's judg-ment. To be sure, the NRC inspection reports covering 10 years of con-struction activity show some violations in welding and inspection proce-dures. But the record (especially with regard to the instances highlighted by AWPP) shows that the violations were few in number for the two million safety-related welds at the f,.cility and did not demonstrate a pat-tern of improper actions. Moreover, where deGeiencies were identified, PECo performed extensive reinspection of the affected work and took proper corrective action. See Durr and Reynolds, fol. Tr.10,977, at 3, 11-23; Boyer, et al., fol. Tr.10,321, at 4,27-90.

62AWPP does not rane similar objectsons to the testimony or staff witnesses Durr and Reynolds.

'8 Even if AWPP could properly rely on the deposition in question, our review or the referenced por.

tsons reveals no inconsistency with the deponents' testimony at the hearing.

~

728 i

i i

l l

__ . - . _ .______~2.. _ . _ _ _ . _ _ . . _ _ _ - .: ___.;. _ ._ . u .;_ _ ._. _ _.._._ _._ ,

l I

l Our observation in Union Electric Co. (Callaway Plant, Unit 1),

ALAB 740,18 NRC 343,346 (1983), is pertinent here:

lijn any project even remotely approaching in magnitude and complexity the erec-tion of a nucIcar power pl. int. there inevitably will be some construction defects tied to quahty assurance lapses. It would therefore be totally unreasonable to hinge the grant of an NRC operating heense upon a demonstration of error-free construction.

Nor is such a result mandated by either the Atomic Energy Act of 1954. as amend-ed, or the Commission's implementing regulations. What they require is simply a Gnding of reasonable assurance that, as built, the facihty can md will be operated without endangering the pubhc h+alth and safety. 42 U.S.C. (t 2133(dl,2232(a); 10 C.F.R. ( 50.57(a)(3)(i). Thus, in examining claims of quahty assurance deficiencies.

one must look to the imphcation of those deGeiencies in terms of safe plant opera-tion. [ Footnote omitted.]

The requisite reasonable aswrance exists if all ascertained construction errors have been corrected, and there is no showing of a pervasive break-down in quality assurance so as to raise serious doubt about the overall safety of the plant. Ibid. The record shows that test has been met here..

4. AWPP's last argument is that the Licensing Board erred in reject-ing the proffered testimony of AWPP's witness, Dr. Gudmund R. Iver-sen, a professor of statistics at Swarthmore College. Under the terms of an earlier Board order, the prefiled direct testimony for all parties on contention VI-l was due by April 16, 1984. Licensing Board Order of March 15,1984 (unpublished), at 6. See also 10 C.F.R. 2.743(b). In its April 16 filing, AWPP simply submitted Dr. Iversen's name as a wit-ness concerning PECo's auditing methods; no testimony or statement of the witness's qualifications was tendered. Testimony of Air & Water Pol-lution Patrol (April 16, 1984) at J. The Licensing Board ruled that Dr.

Iversen would not be permitted to testify because of AWPP's failure to comply with the Board's order and 10 C.F.R. f 2.743(b), requiring the advance filing of written direct testimony. Memorandum and Order of May 2 at 3. AWPP nonetheless produced Dr. Iversen and his written tes-I timony the day the hearing began, seeking reconsideration of the Board's ruling. The Board entertained argument on the matter but again rejected the testimony because it was unjustifiably and unduly late. The Board also concluded that the testimony was not confined to the scope of the revised contention or sufficiently probative of the welding QA issue under consideration. Tr. 10,413-36,11,931; LBP-84-31, 20 NRC at 510.

The Board was entire ly justified in rejecting AWPP's testimony on the ground of lateness. AWPP had ample notice of the filing requirements for this particular direct testimony. See Tr. 8322-24, 10,413, 10,415 16, 10,417, 10,429. Moreover, by this time AWPP had been a participant in 719 i

l i

I the proceeding for several years and had reason to be knowledgeable about the Commission's general requirements for prefiling testimony.

See 10 C.F.R. 2.743(b). Its excuse that it is "a citizen group without any attorney and . . . [ thel resources of the Applicant" is thus particular-ly unavailing. AWPP Brief at 21. See Statement of Policy on Conduct of Licensing Proceedings. CLI-81-8,13 NRC 452,454 (1981) ("the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party ofits hearing obligations"). As the Licensing Board stressed, these are complex proceedings that demand an orderly process; requiring par-ties to produce their direct testimony in advance of oral hearing is not a mere technicality but an essential ingredient of such process. See Tr.

10,431.

The Board's assessment of the relevance and probative value of Dr.

Iversen's testimony is also correct. We have examined this testimony

( AWPP Exh. 3) and find that it refers to various PECo audit reports and other matters not encompassed within revised contention VI l and AWPP's list of welding deficiencies. See p. 724, supra. Although AWPP refers to Dr. Iversen's " statistical analysis" (AWPP Brief at 21), no such analysis is included in the four pages of proffered testimony; in-stead, there is only generalized criticism of apparently PECo's program for auditing the installation of pipe hangers. See AWPP Eth. 3 at 2 3.

The Board reasonably concluded that, even if timely, this testimony would not have been of probative value to the consideration of conten-tion VI-l.

111. ANTilONY/ FOE'S APPEAL ARCO Pipe Line Company transports petroleum products through an underground pipeline that traverses the Limerick site. Columbia Gas Transmission Corp. similarly operates two underground natural gas pipe-lines near the site. LBP-84-31,20 NRC at 467-69,474-76. A major part of the Licensing Board's second partial initial decision addresses An-thony/ FOE's concerns, set forth in contentions V-3a and V 3b, about the effects of a pipeline accident on the Limerick nuclear plant. See ld. at 464-97. These contentions state:

V.3a: In developing its analysis of the worst case rupture of the ARCO pipehne. the Applicant provided no basis for escluding consideration of siphoning. Thus, the consequences from the worst case pipeline accident are understated.

~

730

. . _ .. . . . _ _ _ - . ~ . _ _ . . __m_ .. . m_. __ . . _ _ _ -_ . . _. .

1 i

l l

i V-3b: In discussing denagration of gas and petroleum due to pipeline rupture, no specific consderation has been given to the effect of radiant heat upon the

, diesel generators and associated diesel fuel storage facihties.

. Licensing Board Order of November 22,1982 (unpublished), at 5,7.

l The Board oversaw the development of an extensive record on these contentions, devoting considerable attention to the nature of the materials transported in the pipelines, how much of these matertals i

could react to produce heat and blast overpressures and the abihty of safety-related

• structures, systems and components to withstand such impacts, including interac-tions from the nonsafety related structures, systems and components that could be

{- damaged from the results of potential heat or blast impacts.

l LBP-84-31,20 NRC at 466. Indeed, the Board's consideration extended j 4

well beyond the four corners of contentions V-3a and V-3b to encompass the Colambia gas pipelines and the effect'of overpressures (from the detonation of fuel oil or gas released after a pipeline rupture) on various

, structures at the site. See, e.g., fd. at 465-66, 482." The Board deter-I' . mined, on the basis of "very conservative postulates of accident scenar-

ios" and the evidence adduced by PECo and the staff, that these struc-l tures are adequate to withstand the calculated radiant heat loads and l overpressures. It therefore concluded that contentions V-3a-and V-3b

} have no merit. Id. at 466,467,

[

• Anthony / FOE raise myriad arguments on appeal in connection with the Board's disposition of their pipeline rupture contention. Apart from some more generalized arguments at the outset, Anthony / FOE's briefis i

essentially a collection of comments on various Board findings - some i

expressing agreement, but most disagreeing with the Board'sjudgment.65 l We have considered all of Anthony / FOE's arSuments in the context'of j the record evidence and the Licensing Board's decision and find none i

]

i

}

l l MThe Licensing Board. in effect, raned these matters sua spome. See 10 C.F R. l 2.760s. No party complams here about that action. Thus - particularly in view of the outcome - we need not decide er j the Board violated the internal procedure for notifying the Commission of an intent to raise en issue sua i

~

sponte. Sec &usros Larhime amf ro cr Ca (south Texas Project, Units I and 2), LBP-8144,14 NRC 918. 922-23 & n.4 (198I).

[ 65 Attached to Anthony / foe's bnef as "Ethibit A" is a document entuled " Rebuttal of Appheant's

Reply Findmss Uune 6.1984L tt was submnted to the Licensing Board, but apparenity never formally

accepted or rejected. on March 8,1985, Anthony / foe submitted to us their " Additions to Oral Argu-a ment." Neither document is authorned under the Commission's Rules of Practwe, and thus they will not be conssdered. we note, however, that both of these submittals largely contam arguments or mfor.

i mation already before the Licensms Board and pressed before us in Anthony / foe's brief on appeal.

Thus, nothing in either document - even if considered - would affect the outcome here.

l l

1 731 f

I I

i l

l

.e

convincing. We group +,nat we perceive as related arguments and ad-dress the most significant below.**

A. Expert Witness Qualifications

1. Anthony / FOE object to the Licensing Board's reliance on th'e tes-timony of PECo witness John D. Walsh. They contend that, as a meteor-ologist, Walsh does not have the credentials and training to qualify him as an expert witness on their pipeline accident contentions. They also list several areas in which Walsh "was proven wrong" but do not provide any citations to the record or Board decision to support this allegation.

R.L; Anthony / FOE Brief in Support of Appeal (November 23, 1984)

[hereafter, " Anthony / FOE Brief") at 2.

We have reviewed Walsh's credentials and testimony and agree with the Licensing Board that he is qualified and competent to testify in con-nection with contentions V-3a and V-3b. Walsh has an undergraduate degree in meteorology and has taken graduate level courses in meteorol-ogy, physics, and mathematics. He has worked as a professional meteor-ologist since 1959 and has done research in atmospheric dispersion.

Walsh has also performed accident analyses for over a dozen nuclear power plants, including analyses of natural gas or petroleum products pipelines near several such plants. See Professional Qualifications lof]

John D. Walsh, fol. Tr. 5411; Tr. 5453.

The Licensing Board relied on Walsh's testimony for principally those parts of its decision that deal with the formation and dispersion of a flammable mixture in the atmosphere - matters clearly within Walsh's

~

expertise. See LBP-84-31,20 NRC at 470-72,476 77,6' A meteorologist is not just the person who predicts the weather on the evening news.

Meteorology is (Ilhe study dealing with the phenomena of the atmosphere. This includes not only the physics, chemistry, and dynamics of the atmosphere, but is extended to include many of the direct effects of the atmosphere upon the earth's surface, the oceans, and life in general. The goals often ascribed to meteorology are the complete under-standing, accurate prediction, and artificial control of atmospheric phenomena.

66 As noted abme. the Board's discussion or the nsues raised m conjunction with contentions V.3a and v.36 is estensive. We repeat only those racts or background it rormation necessary ror the di9 position or the discrete arguments raised by Anthony / FOE's appeal.

As we stated at note 52, supnr. we rely on the standard m Rule 702 or the Federal Rules or Evidence ror determming a witness's qualifications as an espert. McCure. !$ NRC at 473. Under that rule, a wit.

ness is qualified as an espert by " knowledge, skill. empenence, trasmng, or education."

732

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

Glossary of Meteorology 367 (R. Huschke ed.1959). In other areas (for example, whether the ARCO pumps would shut down), the Board ear-lier determined that Walsh was not qualified to testify, and it relied in-stead on the most conservative assumptions (for example, that the ARCO pumps would operate continuously, maximizmg the amount of fuel released into the atmosphere). Memorandum and Order of Novem-ber 8 at 9-10; LBP-84-31, 20 NRC at 470-71. The Board thus looked closely at Walsh's testimony and properly relied on those portions within his area of demonstrated expertise. But see pp. 736-37, htfra.

2. Anthony / FOE also complain that Robert L. Anthony was not per-mitted to testify about pipelines and the Limerick site. The Licensing Board granted PECo's motion to strike Anthony's testimony, concluding that he "is not qualified by knowledge, skill, experience, training, educa-tion, or any other basis to testify as an expert on any matters related to the contentions." The Board noted that Anthony had conceded his lack of expertise, chiming he only wanted to present certain information as a

" coordinator." The Board determined, however, that the information in question was expert matter on which Anthony was not competent to tes-tify. Memorandum and Order of December 1, supra note 54, at 12. See also LBP-84-31,20 NRC at 466.

The Board's refusal to let Anthony testify was proper. Antliony is a retired art therapist, who has participated as a lay advocate in various land use and related environmental hearings. He has no background relevant to pipe'line location or accidents, yet his proposed testimony covered such material. See Testimony of Robert L. Anthony (November 14,1983) at 1-3 " This type of testimony requires sponsorship by an expert witness "who can be examined on the reliability of the factual as-sertions and soundness of the scientific opinions found in the docu-ments." McGuire.15 NRC at 477. An expert witness would also be necessary to relate the generalized material in question to the particular pipelines at Limerick. By his own acknowledgment, Anthony is not such an expert. See note 67, supra.

B. Overpressure Calculations After noting several areas of agreement with the Licensing Board, An-thony/ FOE object to certain aspects of the Board's decision insofar as it concerns the calculations of the overpressures on Limerick structures in the event of a rupture of the ARCO or Columbia pipelines. With respect

'8This submisson. hke others (we note 58 supre) was not served properly and thus was difrH: ult to locate for the purpose or appellate review.

733

to the ARCO line, Anthony / FOE contend that the Board should have used a larger " spray area" (i.e., the surface area of the gasoline as it covers the ground after a pipe break) than 24,800 square feet as p' art of that calculation." The surface area is important because it determines the rate a' which the gasoline evaporates and combines with air to form an explosive mixture. LBP-84-31,20 NRC at 471. Anthony / FOE argue ,

that the overpressure calculations should have been based on the spray area used by their witness, Bevier liasbrouck - 10,000 square meters, or roughly 108,000 square feet. See flasbrouck # 1, fol. Tr. 5750, at 2.

The Board, however, correctly found "no scientific basis" for the sur-face area used by flasbrouck. LBP 84-31, 20 NRC at 473. In fact, he agreed at the hearing that there was no basis for the area he assumed.

Tr. 5995, 6004, 6100-01, 6115. On the other hand, the 24,800 square feet area, used t)y the staff in its calculations and accepted by the Board, is based in reality and properly conservative as well. The staff derived

. this figure by adding the area of the spill pathway on the hillside (assum-ing a pipe break at Possum fiollow Run) and the surface area of a pool at the bottom of the hill where the gasoline would collect. The pool width assumed for the calculation is especially conservative. See LBP 84-31,20 NRC at 472; Ferrell, fol. Tr. 7136, at 2; Tr. 7155-57. -

Anthony / FOE argue, in this regard, that the Licensing Board misun-derstood or rejected their scenario of a larger pool - with a correspond-ingly larger surface and evaporative area - created by the damming of Possum fiollow Run by a PECo road parallel to a railway embankment.

The record, however, again shows no basis for the surface area assumed in such a scenario. Storeover, the staff's witnesses testified that, even if there were a legitimate basis for the dimensions Anthony / FOE give to this pool, it would not measurably affect their calculation of how much gasoline would be evaporated. Tr. 7531 34, 7536-45. The Board there-fore correctly " assign [ed] no credence to the FOE postulates and re-sulting calculations." LBP-84-31,20 NRC at 474.

As for the Columbia gas pipelines, Anthony / FOE first note that "dif-fusion" would be impeded during inversion conditions. Anthony / FOE Brief at 4. No one disputes this. Ilence, PECo's calculations assumed i

"Gasohne was used ror the ARCO calculations as it is the most volatile or the petroleum products transported in that Imc. LBP.44dl. 20 NRC at 470.

70

% hen leavmg a broken pipe. the natural gas m the air will be too highly concentrated to burn cr deto-nate Only arter conuderable disperson to reduce its concentration will the gas. air misiure be in the Dammable range. A slow "ditTusion rate (such as woukt result rrom an atmospheric inversion conds-tioni thus would allow more time ror the natural gas cloud to 00at toward the plant before its concentra-tion decreases into the Hammable range. Further dispersion reduces the concentration below the Dammable range and thereby elimmates the abihty or the gas-air misture to burn or detonate. see teerr-sily Walsh. rol. Tr. 5418. at 11 12.

734 I

l l

- .. ms _ _. ~_-e_+._. .o--._-.a -- -- - = m--

an inversion even though "[altmospheric conditions actually are more conducive to dispersion 95% of the time." LBP-84-31,20 NRC at 477.

See Walsh, fol. Tr. 5411, at 11-12.

Anthony / FOE next complain that the Licensing Board did not consid-er the "Gre-hose efTect" of a gas pipe break. The Board, however, did hear testimony on this scenario, but relied on PECo's calculations, I which assumed an even more conservative (i.e., worse) scenario than i the fire-hose elTect. PECo assumed a pipe rupture in which there is a complete separation of the pipe and both pipe ends are forced straight up and out of the ground. The gas is assumed to be released in a vertical jet and then to travel, with minimal dispersion, in a cloud as near as possible to the Limerick facility before denagration. Any other orienta-tion would cause more rapid mixing and dilution of the gas at a ground level source, resulting in detonation or denagration farther from the plant. Id. at 10-12. See LBF-84-31, 20 NRC at 477. For example,.in the fire-hose etTect, the pipe ends are in a horizontal orientation at ground .

level, directed toward the plant. More turbulence and thus dilution with air .would occur on the ground, with greater likelihood of Dammability nearer the break, rather than the plant. This scenario would therefore reduce the overpressure calculations, contrary to Anthony / FOE's implic-

. it suggestion. Tr. 5422-24,5473, 5476.

• Anthony / FOE argue that the Board erred in giving "no weight" to liasbrouck's postulate of a Gammable gas mixture that travels 5500 feet (more than a mile) to within 800 feet of the facility and rernains in a Hammable concentration. See LBP 84-31, 20 NRC at 479. The Board pointed out, however, that Hasbrouck had no technical basis for his tes-timony and that he himself had characterized his theory as "hilf baked."

/b/d. See Tr. 6008-09. Compare Campe, fol. Tr. 6131, at 3 4 Indeed, where an asserted expert witness can supply no scientific basis for his statements (other than his " belief") and disparages his own testimony, a board would be remiss in giving such testimony any weight whatso-ever." -

With respect to the actual overpressure calculations for ruptures of the ARCO and Columbia pipelines, Anthony / FOE object to the Licens-

?!

Anthony / foe voice an additional complaint, but provide no supporting cites to the record. They claim that the Licensing Board ignored ther " scenario for an igniuon tngger rrom gas confined at plant level." Anthony / foe Bnerat 4 To the exient we understand this crypuc argument. it is without ment.

If there is no legitimate basis for assuming a detonable cloud within 800 reet of the plant, there is no reason to consider an igniuon tr*gger at this point. We note. however. that PECo's analysis assumed an esplosion at 1200 reet. *tnggered by some undefined high-energy ignition source." LBP 84 3 8. 20 NRC at 478.

735

%t

ing Board's reliance on the NRC staff's calculations." Overpressure cal-culations are ordinarily derived by reference to the blast effects of TNT.

Thus, the mass of gasoline or natural gas vapor released as a conse-quence of a pipeline rupture must be converted to an equivalent mass of TNT in order to determine the blast effects of detonation of the vapor.

The staff based its overpressure calculations on a TNT conversion factor of 240 percent, or a factor of 2.4. This conversion factor is found in NRC Regulatory Guide 1.91 (Rev.1), " Evaluations of Explosions Pos-tulated to Occur on Transportation Routes Near Nuclear Power Plants" (February 1978), at 1.912. Some of PECo's computations, however, used a conversion factor of 10, which the Licensing Board described as "4 times too great." LBP-84-31, 20 NRC at 473. Anthony / FOE assert that PECo's calculations discredited those based on Regulatory Guide 1.91 (Rev.1), and that PECo's higher conversion factor must be used for a worst case analysis. -

We disagree. Regulatory Guide 1.91 (Rev.1) relies on studies that generally show less than one percent of the heat energy is released in a blast of hydrocarbon vapor. The heat of combustion of hydrocarbons is about 10 times that of TNT, resulting in an equivalence on a mass basis of 10 percent (1% x 10 = 10%); i.e., the blast effect of one unit of hy-drocarbon vapor is about ten percent of (or 0.1) that of an equal mass of TNT. But because actual blast energy is a function of accident-specific phenomena, Regulatory Guide 1.91 (Rev.1) adds in a substantial (as much as 24-fold) conservatism; it sets a reasonable upper bound to the blast energy of a vapor cloud at 240 percent. In other words, it assumes that the blast effect of one unit of hydrocarbon vapor is 240 percent of for 2.4 times) that of an equal mass of TNT.

PECo's witness (Walsh) neither rejected nor discredited Regulatory Guide I.91 (Rev.1). Ile was well aware of the 2.4 conversion factor but nonetheless assumed that all of the gas-air mixture within explosive limits is detonated, releasing 100 percent of the available blast energy.

(in contrast, with its built-in, approximately 24-fold conservatism, Regulatory Guide 1.91 (Rev.1) assumes that about 24 percent of the available energy is released when the gas-air mixture is detonated. Thus, Walsh's conversion factor is about four times that of the stafrs.) Walsh, however, gave no scientific basis for this assumption: he did it "[tlo be conservative." Tr. 5430-31, 5551 54.

Conservatisms and margins for error in such calculations are necessary and desirable, but must be footed to some extent in reasonable, scientific UThe stati calculated a peak overpressure or 2.8 psi (pounds per square arkh) ror a rupture or the ARCO hne and 7 4 pu ror the Columbia hne /J. at 474. 480.

736

. . ~ .. ~. , . . - . ~ . . __ - .- -__ ... -- .

. - ___.~w m _.,m . . . . . . . . -,_ . _ . . _ - ._ - ~ . - - - - - - - - - - - - - - - - - - -

i.

I l

7 i

1 l

2 ground. Conservatism upon conservatism can distort technical data to i

the point where it no longer meaningfully describes the' mechanism at

! issue. This is especially true here, where Walsh provided no explanation

, for the 100 percent detonation hypoth.csis in his overpressure calcula-l tions. Moreover, Walsh's credentials as a meteorologist - albeit perti-

. nent to the formation and dispersion of hydrocarbon vapors in the atmo- '

sphere - do not encompass expertise in calculating the explosive force and overpressures created by the detonation of such vapors. In this cir-cumstance, there is no reason to give weight to Walsh's overpressure '

calculations.

Rejection of Walsh's overpressure calculations, however, does not au-

.tomatically " validate" .the Board's reliance on the staft's Regulatory Guide 1.91 (Rev.1) calculations. Regulatory guides and the like do not 4

prescribe regulatory requirements. In general, they are " treated simply

• - as evidence of legitimate means for complying with regulatory require- s ments, and the staff is required to demonstrate the validity ofits guid- '

ance if it is called into que' s tion during the course of litigation." DIl-l j Restart. ALAB.698,16 NRC at 1299. Regulatory Guide 1.91 (Rev.1)

I was admitted into evidence, without objection, as Staff Exh. 7. Expert [

j staff witnesses testified as to the bases for the 2.4 TNT conversion factor i 1 in this regulatory guide. See Tr. 6150 55; Ferrell, fol. Tr. 6136, at 8." '

The Licensing Board therefore did not err in accepting the overpressure

, calculations determined by the staff using the TNT conversion factor found in Regulatory Guide 1.91 (Rev.1)."

C. Structural Integrity The Licensing Board actively explored, on its own, "the ability of safety-related structures at the Limerick Generating Station to withstand the effects of postulated detonations resulting from the assumed rupture

of the ARCO and Columbia Gas transmission pipelines." LBP 84-31,20 .

l NRC at 482. It concluded, on the basis of " conservative" calculations  ;

j ' and analyses performed by PECo and the staff's review, that the safety-  !

l related structures are adequate to withstand both the direct 'overpres.

I 1

?

I l U One such NRC witness. Dr. Kanmieras M. Campe. is responeble ror the evaluatiori or induwnal f hazards like esplosions and is thererore especially quahried to testiry on this matter. Src "Kanmieras

, M. Campe Prorcssional Quahrications." rol. fr. 6131.

74 Anthony / foe argue that some witnesses actually calculated considerably higher overpressures (e g .

1 24 peil during cross.esamination. See, e.g., Tr. 7507. It is apparent trom this testimony, however, that the witnesses simply perrormed mathematical computations with input and assumptions provided by Am.

j thony/ foe but did not signify agreement with those assumptions. See Tr. 75%.09.

t l 737 t

4 I .

_w__. ,.g.m . . . . , - _ _ . . . . ,.__,e...-.. _.mm,.._,,,._,.-,.. ,~,,m..,_, ___,.--..m_,, _ , , , . . , . _ .-_.-,..~..._.r,.?a-

i sures from a pipeline explosion and the indirect effects of failure or nonsafety-related structures. Id. at 467. See id. at 483-93.

? Anthony / FOE challenge the Board's decision in tiiis regard on numer-j ous grounds, but fail to develop fully their argument on any particular point. See Anthony / FOE Brief at 5. Nonetheless, we briefly address r

those concerns that we are able to understand."

l Anthony / FOE question the validity of the " critical element" used in 7

the e.tructural integrity analysis for each safety-related structure. See LBP44-31,20 NRC at 485. They contend that the " weakest points"in

, the walls and roof provide the only valid test for structural integrity. An-l _ thoay/I:OE Brief at 5. The critical element, however, is "that beam, column, wall, slab, or floor that because ofits geometry and/or orienta-tion; bears a significantly larger stress than other like structural ele-meets." Kuo, fol. Tr. 9043, at 3. Here, the critical wall of each structure wa, first determined and then the critical element of that wall selected

'a one foot wide beam with fixed ends, with no credit taken for the '

additiorial support provided by adjacent walls. /J. at 3-4. Thus, the j " weakest" part of the structure, viewed as a function of stress, was used

. in the analyses.4

The structural adequacy of a critical element can be expressed in' i terms of the " ductility ratio." The pertinent building code allows a mid-j . span ductility' ratio of 3.0 and an end point ratio of 10. See LBP 84-31,

, 20 NRC at 485 The highest such ratios calculated here were 2.2 (mid-

! span) and 2.9 (end-point). Tr. 8947-48, 9069 70. Anthony / FOE com-i plain that the margin for the mid span ductility ratio is not adequate.

They also make related arguments that the " failure threshold" of a struc-f ture must be evaluated, and that the margins between the calculated

overpressures and the design basis pressure for each structure are inade-

quate. See Table 11 LBP-84-31. 20 NRC at 496. But as the Licensing l Board correctly explained, such code values are not intended to express

[ the ultimate failure threshold of a structure; they include "some addition-

)

al unquantified safety margin." /d. at 486 (emphasis added). Thus, a -

l structure " built to code" has an added margin of safety. Structures l.

i

' D al this porton of their brier. Anthony / foe agaen object to any rehance by the Board on overpressure '

j calculations determmed in accordance with the TN T converwon factor or Regulatory Guide 1.91 (Rev i

' ll. we wd! not revist that discuswon. See pp. 735 37, supre. We note. however, that PECo recalculated blast overpressuresrrom a rupture or the Columbia gas pipeline by this method and denved data smilar to those of the staff. LBP-84-31. 20 NRC at 483-84.

4 Anthony / foe also assert that the **as budi" condition or the structures, rather than their deggn.

, should have been taken into account. Whether the Limer6ck racihty has been budt en accordance with

} its approved design. however. goes well beyond not only Anthony / foe's contentions V Ja and V-3b.

, but also the Licensms Board's own espanded consederation of the ofrects of a pipehne emploston.

l 73s l

t I

i l

g n.

within the code values - such as those here - have still more margin and cannot be fairly characterized as inadequate.

Anthony / FOE assert that the Licensing Board erred in comparing the stresses on a structure caused by an earthquake, which operate through the ground, with those that would result from a pipeline explosion in the air. Based on PECo's analysis, the Board found that the overturning moment and the story shear associated with the design basis " safe shut-down earthquake" for Limerick were larger than those associated with the postulated explosions." The Board thus concluded: "[slince the' plant has been designed to withstand the safe shutdown earthquake load-ing values, there is more than adequate structural capacity to resist the forces associated with the postulated explosions." /d. at 487.

The Board did not err in .m:: king this comparison. Overturning moment and story shear are different types of" forces" that can be exert-ed on a structure. See Kuo, fol. Tr. 9043, at 8-9.?' As a result, they can be expressed as numerical values. Once such a value is determined, the cause of the building response - i.e., an earthq'uake in the ground or a blast in the air - is irrelevant. Either a structure can withstand that moment or shear, or it cannot. llence, comparison of values calculated from blast overpressures with those already accepted in connection with the seismic capability of the plant is not only valid, but useful. It simply provides yet another means of judging the structural integrity of the facility by reference to a known and accepted standard.

Anthony / FOE also claim that the Licensing Board ignored or did not adequately consider a variety of factors in connection with a pipeline explosion - to wit dead weight as an additive to blast pressure on the roofs, vibratory load, temperature differentials, hydrostatic forces, dif-ferential settlement, failure of fouver and roof ope,ings, overturning of the cooling towers and transmission towers, and b each of the cooling tower basin. But intervenors' claim is seriously at oo is with the Board's decision and the record. Each of these matters was 'ully considered by PECo and the staff, and the Licensing Board's decision contains exten.

sive discussion on these subjects. See LBP-84 31, 20 NRC at 487-92.

Inasmuch as Anthony / FOE challenge virtually none of the Board's find-ings in this regard, we need not repeat them here." We add only that

" The sare shutdown earthqude -s based on site-specinc tharacteristics and " produces the masimum vibratory ground motion ror whic;t certain structures. systems, and components are designed to remain runctional

• 10 C.F.R. Part 100. Appendis A ( lilici-78(n engineenng terminology, overturning moment and story thear are overall responses or a building to an esternal rhenomenon.

I' Anthony / foe expreuly object to one aspect or the Board's discussion of a postulated railure or cer.

taan louver and roor opemngs in the reactor building. The Board noted that, even ir the pressure rrom (Connnued) 739

.n

none of these factors was shown to present a threat to the integrity of any safety-related structure at Limerick.

Finally. Anthony / FOE contend that the issue of possible damage to the spray pond from missiles generated as a result of a pipeline explosion is unresolved. The evidence shows, however (and Anthony / FOE do not disagree), that whatever missiles might be generated would not affect the spray pond building, fixtures, or pipes leading to the fixtures. The only matter still "open" at the time of the hearing was the elTect of a tor-nado on safety-related spray nozzles and piping within the pond - an issue not raised by any contention. PECo then had under way a proba-bilistic risk assessment of a tornado and its effects on this hardware, which the staff expected to evaluate. But the unrefuted testimony of both PECc and staff witnesses was that a blast wave from an explosion exerts force downward and thus would not lift up and carry away missiles that could affect the spray nozzles, as a tornado might. /d. at 492-93. See Tr. 8900-01, 9367-68. Thus, nothing directly pertinent to Anthony /

FOE's pipeline explosion scenario was or is " unresolved" by the Board's decision."

D. Other Issues Anthony / FOE contend that the extensive record developed in connec-tion with their contentions V 3a and V-3b proves that the ARCO and Columbia pipelines pose a risk to the Limerick plant. In their view. it was the Licensing Board's function . . to establish that accidental releases from the pipelines could cause explosions which could ir,'ict the plant [,l" and " duty . . to eliminate this risk." Anthony / FOE Brief at 1.

A licensing board's function, however, is to oversee the parties' devel-opment of the record on contested issues and to issue an initial decision an explouon were not absorbed in some other way (as PECo's calculations showed it would be), a railed ventilation louver would allow the preuure inade the building to increase by no more than 0 016 pu and have a negligible efrect. LBP-84-31. 20 NRC at 449 for a roor opening panel raiture. the reactor buildmg pressure would increaw only shout 0 01 psi. /hd Anthony / foe argue that this obscures the rest haistd, radioactne contamination or the outside air. % hele it is agreed that railure or the sentilation

'louve or roor opemns will result m the reactor buildirig being open to the outude air. a stafr witness testifb i that ordinarity (and en this casel there would not be any airtwrne contamination m the reactor build.eg that could be retcased Tr. 9118 12. 9128-29. In agreeing with Anthony's enertion that railure or the ventiwtion louver would leave the reactor buildmg with an openmg to the outdoors. PrCo witnen Boyer charsetetired this occurrence as "a maintenance probiern " Tr. 8967. In ract. the roor openmg n spectrically designed as a blowout panel to reliese overprewure inede the building. Tr. 8939.

no PECo subsequently completed its tornado PR A. The stafr evaluated it and consluded that, subject to certam improveruents m procedures. the pertinent demgn criteria were sataried with respect to protec.

tion against such natural phenomena and the missiles that they might generate. See ssER 3 at 91 to 94, ssER4 (May 19858 at 9-1 to 9-3.

~

740

containing ute board's Ondings of fact and conclusions oflaw on the mat-ters in controversy. See 10 C.F.R. (( 2.718, 2.760, 2.760a.8' This does not mean that a board must stand mute during the hearing and ignore deficiencies in the testimony; it must, of course, "' . satisfy itself that the conclusions expressed by expert witnesses on significant safety or en-vironmental questions have a solid foundation.'" South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663.14 NRC i140, i156 (1981), review declined, CL1-8210,15 NRC 1377 (1982). The Licensing Board more than fulfilled that obligation here, soliciting testimony on matters not even within the scope of the admitted contentions. See pp. 731, 737, supra.

A board is not obliged, however, to eliminate all risk that may be revealed in connection with a facility. " Reasonable assurance" that the plant will be operated safely and that public health, safety, and environ-mental concerns will be adequately protected is the standard by which a licensing board is to measure an application; a " risk free environment" l is not required. Carstens v. NRC,742 F.2d 1546,1557 (D.C. Cir.1984),

cert. denied. _ U.S. _, 86 L. .Ed. 2d 694 (1985).82 Again, the record and Licensing Board decision here amply demonstrate reasonable assur-ance that the public health and safety are protected from the risks of a pipeline explosion at Limerick.82 The Licensing Board's second partialinitial decision, LBP 84 31,is af-17tmed. except insofar as it approves PECo's onsite emergency plan medi- -

1. 1 Anthony / FOE point out that, had it not been for their pursuit n( the issue, the potentia danger from the pipelines near LimerKk would not have been analyred as thoroughly Anthony / foe Bner at 1. That may well he true intersenors can therefore feel gratified that their partsopation in this proceedmg has contnbuted to a greater demonstration of the Limensk facshty's abihty to withstand the postulated pipe.

line explosums.

s2 The court went on to reject the notion that the Commnsion n required "to adopt wholesale the worst (ase scenano that a party may gloomily rrame " Carvien 742 F,2d at 155L s3 in view of our decmon upholding the Licensing Board's dnposition of contennons V.Ja and V.lb, we need not address the spen 6c relief requested by Anthony /I'OE - relmanon of the pipelines. See An.

thony/ FOE Bnef at I. w enote. however. that the NRC dort nos have regulatory jurndiction over pipe.

lines the Federal Energy Regulatory Commmion and the states regulate vanous aspects of these enti-ties The SRC, of course. must arprove the locanon selected for a nuclear power plant. Alternalise site issues. however, can be raised only at the construction permit stage and not an connection with an operating luense. See 10 C F R. H $1 10Mc). fdL 741 aw .

l cal arrangements. On that issue, we reverse and remand for further action consistent with this opinion.

It is so ORDERED.

FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board P

6 742 l

l

-S

Cite as 22 NRC 743 (1985) ALAB 820 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrat!ve Judges:

Alan S. Rosenthal, Chairman Dr. W. Reed Johnson Howard A. Wilber In the Matter of Docket Nos. 50 440 OL e 50 441 OL CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

(Perry Nuclear Power Plant, Units 1 and 2) October 24,1985 The Appeal Board denies intervenor's application for a stay pendente lite of a Licensing Board decision (LDP-85 35, 22 NRC 514) in this operating license proceeding.

RULES OF PR ACTICE: STAY OF AGENCY ACTION (CRITERIA)

In passing upon stay requests, the following criteria are to be applied:

whether the movant has made a strong showing that it is likely to prevail on the merits; whether the movant will be irreparably harmed in the ab-sence of a stay; whether the granting of a stay would harm other parties; and where the public interest lies.10 C.F.R. 4 2.788(e) 'T he same crite-ria are applied by the courts. See, e.g., Virginia Petroleum Jobbers Ass'n v.

FPC,259 F.2d 921 (D.C. Cir.1958); DYashington Sletropolitan Area Tran.

sit Comm'n v. Isoliday Tours, Inc., $$9 F.2d 84l (D.C. Cir.1977).

I 743 )

l

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

RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITERIA)

The second of the 10 C.F.R. f 2.788(e) factors - whether the movant will be irreparably harmed in the absence of a stay - is often the most important in determining the need for a stay. See, e.g., Duke Power Co.

(Catawba Nuclear Station, Units I and 2), ALAB-794, 20 NRC 1630, 1633 (1984), quoting Philadelphia Electric Co. (Limerick Generating Sta-tion, Units I and 2), ALAB-789, 20 NRC 1443,1446 (1984). See also Public Service Co. ofIndiana (Marble liill Nuclear Generating Station, Units I and 2), ALAB-437,6 NRC 630,632 (1977).

RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITERIA)

The strength or weakness of the showing by the movant on a particular 10 C.F.R. l 2.788(e) stay factor influences how strong the showing on the other factors must be in order tojustify the sought relief. Public Scrv-ke Co. of New Hampshire (Seabrook Station, Units I and 2), ALAB.

338,4 NRC 10,14 (1976). See also Cuomo v. NRC, 772 F.2d 972,974 (D.C. Cir.1985).

RULES OF PRACTICE: STAY OF AGENCY ACTION (IRREPARABLE INJURY)

A party applying for a stay is required to demonstrate that the claimed irreparable injury is both "certain and great." Cuomo. 772 F.2d at 976, quoting IVisconsin Gas Co. v. FERC,758 F.2d 669,674 (D.C. Cir.1985).

RULES OF PRACTICE: STAY OF AGENCY ACTION (IRREPARABLE INJURY)

Speculation about a nuclear accident does not, as a matter of law, con-stitute the imminent, irreparable injury required for staying a licensing decision. Pacylc Gas and Ekctric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI 84 5,19 NRC 953,964 (1984), citing New York 'v. NRC,550 F.2d 745,756 57 (2d Cir.1977) and Virginia Sunshine Alliance v. //endrie,477 F. Supp. 68,70 (D.D.C.1979).

744

- _ - . ~ . ~ . . n; . . -. ~ .: a : . x . == = -

I

~  !

~

+

APPEARANCES Susan L. Hlatt, Mentor, Ohio,'for the intervenor Ohio Citizens for Re-sponsible Energy. '

Jay E. Silberg, Harry H. Gl.asspiegel, Michael A. Swiger, and Rose Ann C. Sullivan, Washington, D.C., for the applicants Cleveland Electne Illuminating Company, et al.

, Colleen P. Ndhead for the Nuclear Regulatory Commission staff.

s .

.t '

' ~

MEMORANDUM AND ORDER On September 3.1985, the Licensingloard rendered.its Concluding '

Partial Initial Decision on Emergency Planning, Hydrogen Control and Diesel Generators.' That decision paved the way for the issuance of operating licenses for the two. unit Perry nuclear facility, subject to (I) compliance by the applicants w' ith certain specified conditions imposed -

, by the Board; and (2) the requisite findings by tt'e Director of Nuclear t Reactor Regulation on matters not placed in cientroversy before the Licensing Board.2.  !

Intervenors Suhflower Alliance (Sunflower) and Ohio Citizens for Re-sponsible Energy -(OCRE) hau appealed the September 3 decision.3 OCRE, but not SuMower, has accompanied its appeal with an applica-tion under 10 C.F.R. 2.788 for a stay of the effectiveness of the decision '

pendente lite.' According to OCRE, all four of the established criteria to 5

l LBP-s5 33.22 NRC.O4 211 at $86. See elsa 10il F,R. 50.$7(a). .

I By virtue of 10 C.F R.-U64(D(2), however, the Director may not authorize the operauon of the t facihty at power levels above Sve percent of rated power without prior Commisseon approval following the conduct of an "immc4.me e(Tectneness" review. It is currently uncertain when that review will be completed. In this connection, apphcants' counset recently furnnhed us with a copy of an october i t, 1985 letter from an of0cial of the lead apphcant to the Director of Nuclear Reactor Regulation in which the Director was mformed that Unit I of the facihty *may be ready to load fuel as early as November 8 1953." It would thus appear un ihely that that unit will he en a position to operate at above the rne per-eent level pnor 10 the turn of the year.

3 Both appeals are addressed to certain previously entered interlocutory orders as well.

The appio.nts a'so filed a .,otice of appeal from the decisenn. They subsequently withdrew the notice.

however, upon oVaining Licenung Board clanncanon respecting the timing of too condahons imposed by the Board in the area M ofrsite emergency planning.

• Motion for a star Pendeme Lite (september 2$.1945) (" stay Monon"). A preciously filed motion seeking the same relief was rejected as illegible. See order of september 2J 1985 (unpuctished). The specific ddficuhies mere the size of the type employed and the clarity of the print on the former score.

(Connnued)

I i

e

~ 745 '

/

r t

(

L b

_ __. __ ,. . _ _ _ ~ . _ .. _ _ . . ___ _ .- _ ..._.. _ _. _ .. _ .. . _ - . . _ . -

be applied in passing upon stay requests support the grant of such relief here.5 The applicants and the NRC staff argue otherwise and, according-ly, oppose the application.* For the reasons stated below, we deny it.

A. The second section 2.788(c) stay criterion - whether OCRE has demonstrated that it will be irreparably injured unless its application for such relief is granted - commands our attention Orst because it is "often the most important in determining the need for a stay."' Most ap-peals present at least some close questions. Where no threat ofirrepara-ble injury is established, both the need for and the wisdom of our precip-itous pronouncement on the merits of the appellant's claims are doubtful at best.'

We now turn to OCRE's specinc allegations ofirreparable injury.

although they do not eiphettly presnbe a mimmum type size, the Rules of Practice mnst assuredly im.

phcstly mandate that the type be large enough to be read without mcurring undae eye strain. See 10

('.F R. 2.708(h).

5 Thow critena, set forth in 10 C F R. 2.788(e), are:

(11 W hether the moung party has made a strong showmg that it is hkely to prevail on the ments.

(2) % hether the party will be irreparably ensured unless a stay es granted.

(3) % hether the granting of a stay would harm other parties; and (41 % here the pubhc interest hes The same criiena are apphed by the courts. Sec. e.g. hermra Perrotrum /obhrrs awe v. IPC. 259 F.2d 92I (D C. Cir.1958); washmgros Afermpalaan Area Transer Comm's r floMay Tours. Inc.. $$9 F 2d 841 (D C. Cir.1977).

6 Appbcants' Answer to Ohio Catetens for Responuble Fnergy's %fotion for a 5tay Pendente Lite' 0:tober 10.1945p (* Apphcants' Response"). NRC 5tati Response in Oppouuon to the Winon for si.y filed by Ohio Cm: ens set Responsih!e Energy UKRi~) (October 9.19258 ("Sialf's Re ponse")

7 Sec. e t. DuAt /Wr Co (Cata*ba Nuclear sianon. Umts I and 21. ALAB 794. 20 NRC 1630.163)

(1984) quormt Phdadelphsa Drctrar Ca. (Limenck Generatics station. Umts 1 and 2). ALAB.789. 20 NRC 1443.1446119441 Src ahn PuMc T<me Ca ofInduisa 6f arble flill Nuclear Generanns Stanon.

Umts I and 2J. ALAB 437. 6 NRC 630. 632 (1977):

the factor which has proven most cruoal in our dehberauons (as et often does in ludwaal ones) is the quesnon of irreparable mjury to the movants it ss the "estabbshed rule that a party is not ordinanly granted a stay of an admimstrative order without an appropnate showing ofirreparable injuryJ' Permeas Basis .4rra Rarc Cases. J90 U.s 747,77) (19t>s).

8 ff the stay appinanon does not contain the requiute showmg nf irreparable injury. it is similarly un.

hkely that the third and fourth stay entena (harm to other parties resuitmg from a grant of stay rehef and pubhc enterest conuderat.ons) would call for affirmative action on the applwation. See Caramba 20 NRC at 1635.

It need he added in this regard only that the proposition stated in the test is entirely conustent wilh our long-held view that "the strength or weakness of the showmg by the movant on a particular factor enfluences pnntipally how strong his showmg on the other factors must be in order to justify the sought rehef" Pub /ar Serwrr Co e/ Sew //ampshire (seabrook sianon. Umts 1 and 2). ALAB.338,4 NRC 10 14 (1976L in the ume sem, the Court of Appeals for the Disinct of Columbia Circuit recently observed en a case mvolvmg ad mmstratise action of this agency:

To justiry the grannes of a stay. a movani need not always evahhsh a high probabihty of success on the ments Probabihty of success is inversely proportional to the degree ofirreparahle mJury evidenced. A stay may be granted with either a high probabihty of success and some enjury, or vue versa.

Cuomo v. SRC 772 F 2d 972. 914 (D C. Cir.1985). It reasonably follows that one who estabhthes *>

amount of arreparable injury is not enntled to a stay in the absence of a showmg that a reverut of the de.

casion under attack is not merely hkely. but a virtual certainty.

746

1. OCRE maintains that operation of the Perry facility will expose the public to " routine non natural radioactive emissions."'in this con-nection, it offers the aflidavits of Dr. Carl J. Johnson and Susan L.

Hiatt. For his part, Dr. Johnson expresses the opinion that chronic expo-sure to the low levels of ionizing radiation that will be released during normal Perry operation will result in " carcinogenic damage to body cells" posing a " grave risk to the health of those living near" the facility and, further, that a " person having a history of cancer on both sides of the family is especially at risk."88 According to Ms. fliatt's one-page af-fidavit, she is an OCRE member who lives in the vicinity of the Perry facility and has several other contact points with the area in close prox-imity to the facility site." We are told, without elaboration, that "[t]here is a history of cancer on both [her] mother's and father's side of [her]

family."82 .

As the Court of Appeals for the District of Columbia Circuit has twice emphasized in recent months, "[a] party moving for a stay is required to demonstrate that the injury claimed is 'both certain and great.'"') It is readily apparent that neither affidasit amounts to such a showing.

To begin with, Dr. Johnson offers no authority whatever in support of

• his opinion that the radioactive effluents from normal plant operation pose a " grave" cancer risk to members of the public in the vicinity of the facility. Nor does he confront (any more t.han did OCRE below) the staffs conclusion in the Perry Final Environmental Statement that, even if subjected to the maximum possible exposure to the radioactive effluents associated with normal plant operation, an individual would incur a minimal risk of premature death from cancer - i.e.l less than one chance in a million per each year of reactor operation.It appears that this estimate was derived from a report of the Advisory Committee on the Biological Effects oflonizing Radiations of the National Academy of Sciences.85 Surely, if Dr. Johnson disagrees (as he presumably does)

' stay Mouen at 7.

10 AfGdavit of Dr. Carl J. Johnson (serrember 5.1985). attached to stay Motion, at 4. Dr. Johnson in-forms us that he possesses doctorates in both medicine snd vetermarv medicine as well as a master's degree in publ'c heaHh. M at I. Although going on to deTrWe hirw.tr as "a recognized expert in the credemiology of illness due to ensironmental pollutants st.h as radianuchdes* (ibd). he does not illume the basis for that statement and makes no refereice to either present or past professiona! ,

undertakings.

H Affidavit of susan L. Iliatt (september 19.1985). attached in Stay Motion.

I2lbul.

'3 Cuomo. 772 F.2d at 976, quormt Wisconsm Gas Co. v. FERC.158 F 2d 60. MAN D C. Cir. I9351.

14N11 REG-0884. Final Environmental statement ror the Perry facility (August 1982) l-FEs'] at 5-27

'8M at 5-21. This report, entitled "The Eqeca on Populations of Exposure to Low Levels or Ioninns Radiation." was published in November 1972 and is frequently referied to as "BEIR I." As the FEs rur-ther observes (at 5-2D. the values for risk estimators employed by the staff

^ icontmueat) 747

.A

__ _ _ _ _ _ . . . _ _ ~ _ _ . _ . _ ~ . _ . _ _ _ . _ . _ _ . ._ _. _ ._ . _ . _ _ . . _ -

with the content of that report, it was incumbent upon him to explain why the report (and the staff's conclusion founded thereon) should be laid to one side in favor of the acceptance of his views.This is particular-ly so given the fact that his thesis would seem to apply with equal force to ercry operating nuclear power facility in the United States; i.e., he does not assert that the Perry facility will occasion uniquely high radia-tion releases in normal operation. Thus, to credit his sweeping cla'im

~

that a grave cancer risk stems from routine radiation emissions would bring into question, without the slightest substantiation of that claim, the propriety of permitting operation of all nuclear power plants - not just Perry.'6 Similarly, Dr. Johnson does not endeavor to supply a foundation for his belief that " genetic factors play a role in determining which persons in a population exposed to carcinogens will be afnicted with cancer" -

the belief undergirding his conclusion that persons are at greater risk if

. there is a history of cancer on both sides of their family. Likewise Nis.

Hiatt's representation of her assertedly higher risk of cancer is not sub-stantiated with the type of documentation on which we must base our decisions.

2. OCRE also claims that Perry operation will subject its members and the general public to the risk of "a severe nuclear reactor acci-dent."l' In common with the movant for a stay in Cafawba, however, OCRE does not treat either "the manner in which the postulated acci-dents might be created [or] the probability of their occurrence."'8 Ac-cordingly, as the like assertien in Catawba " the claim must be rejected for want of other than a purely conjectural basis.M

3. Finally, OCRE is concerned that, unless a stay is issued, it may lose by reason of mootness its challenge to the Licensing Board's dismis-sat of its contention to the effect that the applicants should be required are consistent with the recommendations or a number or recognized radiation-protection organi-zations, such as the Internauonal Commimon on Radinlogical Protection (ICRP), the National Council on Radiation Protect on and Measurement (NCRP), the National Academy of sciences (BEIR 110, and the United Nations scientific Committee on the Efrects of Atomic Radiation (UNsCEARL l' The ten-page limitation on the length or stay apphcations imposed by 10 C.F.R. 2.788(b) is "eucluwve of affidavits." This being so, the limitation did not preclude a full esposition by Dr. Johnson of the foun-dation for the views set forth in his affidavit.

37 stay Motion at 7.

Ia 20 NRC at 1634.

'* lbd mas the Commission has oberved-It ts well-estabinhed that speculauon about a nuclear accident does not as a matter of law can-statute the imminent, irreparable mjury required for staying a heensing decision.

Parvic Gas ad Electne Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI.84-5,19 NRC 953,964 (19841, ctrme New York v. NRC 550 F.2d 745,756-57 (2d Cir.1977) and Mermia SunsAme Alii.

esce v. #cMnr. 477 F. supp. 68,70 (D.D C.1979L 748

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

( l r

4 to install an automated standby liquid control system to mitigate the con- ,

sequences of an anticipated transient without scram.28 Even if it were

warranted, that concern scarcely can be converted into a claim of irrepa-rabic injury in the absence, as here, of a demonstration that plant opera- .

tion without the automated system would pose an immediate and serious l threat to the health and safety of persons (such as OCRE members) in .

b the vicinity of the plant.22 Additionally, should we ultimately agree with f

{ OCRE t' hat the automated system contention was improperly dismissed,

it is not clear that the fact that the plant was allowed to operate pendente

, lite would stand in the way of its obtaining relief on a remand to the l Licensing Board for further consideration of the contention.

j B. In light of the foregoing, it is unnecessary to consider at length

{ the other three section 2.788(e) stay criteria. It is enough to note that OCRE's showing on none of them comes close to offsetting the absence i of any demonstrated or discernible irreparable injury associated with i .

plant operation during the pendency ofits appeal. In this regard, OCRE -

may or may not ultimately prevail on the merits ofits various challenges to Licensing Board findings and conclusions. That matter must await the j full briefing'and oral argument of the appeal. All we need or do decide

now is that OCRE has not established the existence of such manifest l Board error as would warrant our intercession at this early stage of the

! appellate process.

OCRE's stay application is denied.23 It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board t

J 21See LBP 84-40, 20 NRC !!81 (1984). Because the dismissal order was manifestly interlocutory, oCRE had to sbede the event of an appealable decision before seeking our review.

22See Casa =ba. 20 NRC at 1635.

23Also denied as moot is oCRE's october 15. 1985 Motion to strike Portions of the Applicants' Re.

sportse to the stay Application. That motion is addressed to (D the applicants' citation to pnor decissons of a federal distnct court and this Board in which the worth of Dr. Johnson's testimony and siews was

- discussed; and (2) certain amdavits submitted by the applicants in surgert of their opposition to

. oCRE's stay application. As seen, we have not cited, let alone relied upon, any of the assertedly objec.

! tionaMe matenal.

i 749 l

i 1

)

=

, e g se vmay_ ,ey 9 6h7== w-- W y e-o ea vW . e te_- =

=. _' a-_a e,__, _ _ , ,_ .

Cite as 22 NRC 750 (1985) ALAB-821 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Gary J. Edles, Chairman Dr. W. Reed Johnson Christine N. Kohl in the Matter of Docket No. 50 289 SP (Restart)

METROPOLITAN EDISON COMPANY, et al.

(Three Mile Island Nuclear Station, Unit No.1) October 25,1985 Acting on a referral by the Licensing Board of an intervenor's petition to reopen the proceeding, the Appeal Board (1) affirms the Licensing Board's ruling that that Board lacks jurisdiction to consider the petition and (2) declares its own lack of jurisdiction to consider it. .

RULES OF PRACTICE: JURISDICTION (APPEAL BOARD)

If an appeal board has previously considered an issue and (by either the action or inaction of the Commission) the determination amounts to final agency action on that issue, the appeal board has no jurisdiction over a subsequent attempt to raise that matter once again. Such requests are, in general, more properly direcied to the Director, Nuclear Reactor Regulation, even though other issues in the same proceeding may sti!!

be pending before the board. When an issue sought to be considered anew, or to be reconsidered, has a reasonable nexus to a discrete matter still pending before an appeal board, the board has jurisdiction over it.

~

750

s Louisiana Power a Light Co. (Waterford Steam Electric Station, Unit 3), ,

ALAB-792,20 NRC 1585,1588 (1984). See also Pacv7c Gas and Electric  !

Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-782, 20 NRC 838,841 (1984). The " reasonable nexus" test can be satisfied

- where the new issues overlap those pending before the board; a total identity or commonality of issues is not necessary. Louisiana Power & '

Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-797, 21 NRC 6,8-9 (1985).

MEMORANDU'M AND ORDER We have before us a petition to reopen this proceeding, filed with the Licensing Board by Marvin I. Lewis and referred to us by that Board.

The petition seeks a reopening with regard to the so-called "flartman Allegations . . . expanded to take in all aspects ofleak rate," as set forth in the following new contention: ,

Leak rates have been and are being measured erronectisty. Erroneous leak rates allow the TMI al reactor to be operated outside technical specification limits, in.

creasing danger of a major nuclear accident and reducing the public's safety.'

In support of his petition, Mr. Lewis relies on a September 6,1985, memorandum from the Director Division of Reactor Safety, NRC Region I, to the Director, Division of Licensing, Office of Nuclear Reac-tor. Regulation (NRR), regarding leak rate test results obtained during a recent heatup of TMI Unit 1. This memorandum states that, although

" evaporative losses" actually appear to be zero, th_is term is not in the TMI Unit I technical specifications. The memorandum accordingly goes on to recommend modification of the technical specifications. Mr. Lewis alleges that this is additional evidence 'of what he describes as a " con-tinuing pattern of incompetence" by the licensee, its nuclear steam system supplier, and the Commission as well.2 The licensee and the NRC staff oppose the petition.)

i Petition or Marvin L Lewis. Intervenor ror A New or Expanded Coniention Concermns the Hanman Leak Rate Ahegations (september 19.19857 at 4 2 /d at 3.

3See Licensee's Response to the Petition or Marvin 1. Lewis ror a New Leak Rate Contention (october 4.1985h NRC staffs Answer to Petition or Marvin I. Lewis. Intervenor, ror a New or Expanded Con-tewon Concerning the Hanman Leak Rate Anegations (october 9.1985).

~

751

\ .-

The Licensing Board denied the petition, finding it lacks jurisdiction to entertain it, The Board nonetheless referred it to us - not for review of its ruling, but rather for determination of whether we independently have authority to consider it.4 We conclude that we do not. We also affirm the Board's ruling as to its own jurisdiction.

In our Waterford opinion we addressed the matter of our authority to consider issues raised in a petition to reopen. We observed:

If we have previously considered an issue and (by either the action or inaction of the Commission) our determination amounts to final agency action on that issue, we have no jurisdiction over a subsequent attempt to raise that matter once again.

Such requests are, in general, more properly directed to NRR. This is true despite the fact that other issues in the same proceeding may still be pending before us. On the other hand, when an issue sought to be considered anew, or to be reconsidered, has a reasor able nexus to the discrete matter still pendmg before us, we have jurts-

~

diction oser it.5 In response to a request for clarification of that opinion, we held that the

" reasonable nexus" test could be satisfied where the new issues overlap those pending before us, because "a total identity or commonality of issues"is not necessary.'

in the instant case, we earlier completed appellate review of all but four matters. Specifically, we ordered the' Licensing Board to conduct furtlier hearings with regard to (i) the adequacy of the licensee's training program, (ii) the so-called Dieckamp mailgram, (iii) the liartman allega-tions of falsification ofleak rate data at Unit 2, and (iv) other allegations regarding falsification ofleak rate data at Unit 1,7 The Commission, how-ever, reversed our decision regarding the Unit i leak rate issue and decided that no hearing on that subject was warranted.'The Commission also determined that the Hartman allegations concerning Unit 2 did "not raise a currently significant safety issue" so as to require further hearings in this proceeding.' Nevertheless, it decided to institute a sepa-4 L censmg Board Memorandum and order oroctober 15,1985 f unpubinhed).

5 Lomsosa Poner & Licht Co. (waterrerd sicam Electric stauon. Unit 3). ALAB-792,20 NRC 1585, 1588 (1984). See also P,rrific Gas and firrrric Co. (Diablo Canyon Nuclear Po*er Plant, Unns I and 2),

ALAB-782. 20 NRC 838. 841 (1984t.

• Lawsona Powcr & Light Co. (Waterrord steam Electric stauon, Unit 3), ALAB.797,21 NRC 6,8 9 (1985).

7 ALAB-738.18 NRC 177 (19837 Hlartman allesanons); ALAB-772,19 NRC 1193 (1984) (trainmg, Dieckamp maalgram, and Unit I leak rate data raisificatunl.

' s CLI-85-2, 21 NRC 282, 306-14, irrono/crorros dened. CLt-15-7, 21 NRC i104 (1985 p.

'id. at 304-05.

752

, f

• 9

rate proceeding with regard to certain aspects of the Hartman allega-tions,'8 That brought to an end the adjudicatory consideration in this pro-ceeding of allegations concerning falsification of leak rates (including the Hartman allegations) and left pending only the issues of licensed

, operator training and the Dieckamp mailgram."

it is not entirely clear whether Mr. Lewis is concerned with an assert-edly ongoing pattern ofleak rate problems - of which the new informa-tion is simply another example - or a wholly new matter (or both). Ifit is the former, the Commission has already taken final action on such matters and determined that they shall not be evaluated in this proceed-ing. If his petition raises a new concern, no reasonable nexus to the two discrete matters still pending before us is asserted or apparent. In either circumstance, we lack authority to consider the issue raised in the petition.12 10 /J. at 305-06.

H The Commission subsequently hfted the order directing that Unit I remain shut down and permitted resumption of operations. CLI-85-9,21 NRC 1118, a/f"d, Three Mdr Island Alerr. /nc. r NRC, 771 F.2d 720 (3d Cir.1985).

In response to our remand, the Licensing Board has issued LBP-85-15, 21 NRC 1409 (1985), and LBP-85-30,22 NRC 332 (1985), resolving both the training and Dieckamp mailgram issues in the heen-see's ravor. Appeals rrom those decisions were timely filed but have since been withdrawn. Our sua sponte review, however, has not yet been completed. See Appeal Board Order of october 21,1985 funpubhshed).

12 Warcrford. ALAB 792,20 NRC at 1588, and ALAB-797,21 NRC at 8-9.

753

~ _ _ ._.

~~ s

As for the Licensing Board's ruling concerning its own lack ofjurisdic-tion in this matter, we affirm. Itsjurisdiction over all matters in this pro-ceeding ceased with the filing of an appeal from its last decision on the Dieckamp mailgram.'3 The petition of Marvin 1. Lewis is dismissed."

It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board 83 See ALAB-699.16 NRC 1324,1326-27 (1982L N Several other matters are noteworthy. First, the instant case is a "special proceeding" in which the Commission has directed adjudicatory consideration of only selected issues. See CLi-80-5,11 NRC 408 (19ROL It is not clear that the matter Mr. Lewis seeks to raise falls within tho.4 designsted by the Com-mission for adjudscatosy examination. Second, the Licensing Board previously ruled that Mr. Lewis h.id not demonstrated the requisite standing to intersene in this proceedmg. although it nonetheless alloweJ him to participate with respect to a contention dealing with the anequacy of the TMI filter system for radioactive effluents, an issue not advanced by any o:hcr intersenor. See LBP-8132,14 NRC 381,392 n.4 (1981L Gisen our disposition of the petition as noted abose, however, we need not determine whether the issue he now seeks to raise as actually embraced within the matters delegated to the adju-dicatory boards by the Co nmission, or whether he has the requisite standing to raise it.

Finally, we note that the September 6 memorandum does not appear to raise any genuine safety ques-tion Indeed, it indicates that the current leak rate at Unit i is "essenti lly a zero" and suggests no safety concerns on the part of the stafr 754 94

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

mmg:3j 3, . di!l*t.W BitWil Atomic Safety

- M~

ar-ve5.5mtra and Licensing Boards issuances _ _ . -

' ATOMIC SAFETY AND LICENSING BOARD PANEL . g n O ..74,5@

B. Paul Cotter,

• Chairman Robert M. Lazo, 'Vice Chairman (Executive) a Frederick J. Shon, 'Vice Chairman (Technical)

Members

- aa Dr. George C. Anderson James P, Gleason . Dr. Linda Vf. Little _

Charies Bechhoefer* Andrew C. Goodhope Dr. Emmeth A. Luebke' Peter B. Bloch* Herbert Grossman* Dr. Kennth A. McCollom Lawrence Brenner* Dr. Cadet H. Hand, Jr. Morton B. Margulies* _

Glenn O. Bright

• Jerry Harbour

• Gary L. Milhollin a-

' ~

m'"]

Dr. A. Dixon Callihan Dr. David L. Hetrick Marshall E. Miller James H. Carpenter

• Emest E. Hill Dr. Peter A. Morris' Hugh K. Clark . Dr. Frank F. Hooper Dr. Oscar H. Paris * ~~

Dr. Richard F. Cole

• Helen F. Hoyt* Dr.~ Paul W. Purdom Elizabeth B. Johnson Dr. David R. Schink

• Dr. Frederick R. Cowan Dr. Michael A. Duggan Dr. Walter H. Jordan tvan W. Smith

• Dr. George A. Ferguson James L. Kelley* Dr. Martin J. Steindler

• Dr. Harry Foreman Jerry R. Kline* Dr. Quentin J. Stober

Richard F. Foster Dr. James C. Lamb 111 Seymour.Wenner John H Frye til' Gustave A. Linenberger* - ' Sheldon J. Wolfe*

l l

e

• Permanent panel members l

l l

l

- - ,- .-- . _ - - _ . - - _ _ _ _ _ - _ . . _ _ - - - . - _ _l

. -. ..-...-..--:~..~...u--.= z--.-..- . . . - . .. ..-: - .-... _ :..,_ x . .. ..a . . . . .

4 Cite as 22 NRC 755 (1985) LBP-85-39 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chairrnan Dr. Kenneth A. McCollom Dr. Walter H. Jordan Herbert Grossman, Esq.

In the Matter of Docket Mos. 50 445 0L&OL-2 50-446 0L&OL-2 (ASLBP No. 79 430-06-OL)

TEXAS UTILITIES ELECTRIC COMPANY, et af.

(Comanche Peak Steam Electric Station, Units 1 and 2) October 2,1985 In this Memorandum, the Board clarifies its previous order in which it stated that it might not " accept" evidence submitted by Applicants based on the work of the Comanche Peak Response Team, stating that the degree of independence of that Team would affect the weight of the evidence and not whether it would be received into evidence.

RULES OF PRACTICE: EVIDENCE Studies of plant quality may be admitted into evidence even if the study group was not independent of plant management. Lack of inde-pendence of a study group may affect whether a Board will" accept" the evidence because it affects the weight to be accorded to the evidence.

755 i

. n

QUALITY ASSURANCE / QUALITY CONTROL The extent to which management may not have properly controlled plant quality during construction may affect the required intensity of review of the Gnished construction in order to demonstrate the adequacy of construction.

MEMORANDUM AND ORDER (Applicants' Motion for Modifientlon)

Memorandum Applicants' Motion for ModiGcation, Gled September 25.1985, shall be granted in part.

We agree with Texas, Utilities Electric Company, et al. ( Applicants) that the degree ofindependence of the Comanche Peak Response Team (CPRT) affects the weight of the evidence and not whether it would be received into evidence. See The Dallas Morning News article of August 30,1985 (at 16A) cited by Applicants.

We find that the remainder of our Memorandum and Order dealing whh the way in which management has exercised its responsibility re-quires neither modification nor correction in response to Applicants' motion. The assessment of plant quality is a complex matter. There are allegations of a pattern of construction and design de0ciencies. A determination concerning how management has exercised its responsi-bility for the quality of design and construction and the adequacy of QA/QC would, at the very least, affect the necessary scope and intensity of review, including sample sizes.

With respect to sua sponte matters, our view of our responsibilities dif-fers from that of Applicants. In particular, the timeliness factors that affect us are different from those affecting intervenors. Intervenors must submit new issues in a timely manner when information relevant to those matters raises their suspicions. It is not, on the other hand, ap-propriate for a Licensing Board to act on suspicion. We wait. We hear the presented evidence. We declare issues sua sponte when the evidence suggests the necessity for our doing so.

Our unwillingness to act on suspicion is tempered by our awareness that in complex litigation it may be proper to discuss our views, in a pre-liminary and nonbinding manner, in order to assist the parties in antic-ipating their evidentiary needs. This can avoid the extensive delay that -

756 l'b N P ?. Mw . _ e r* -emare_m. m _1.n.a+_ t___+_i-_..__t

_-mmu. -,n. m -e mn m s _,_ u m.u.A..__ m._.m.mm.am _.-u_._m._-_.__m- m

_. _ _ . - _ _ _ _ _ _ . . . . . . . _ _ ~ _ . _ _ . _ c__..._. _ _ _ _ . _ .. _ _ _ . .

might arise if our views came as a surprise to a party later in the litiga-tion. Hence, we prefer to put the parties on notice of our prelimit,ry views - providing them with a fair opportunity to assemble and present relevant evidence.

At the present time, the way in which management exercised its re-sponsibility for the construction of Comanche Peak is relevant to the compiling of an adequate record about plant quality. In addition to the present signincance of this information, we will consider the implications for the safe operation of the plant of whatever we learn from this rele-vant evidence.

We expect Applicants, either in the hearing con: ext or outside ofit, to address management's responsibility in a careful fashion that reflects their concern for the public safety. We expect to be apprised of any docu-ments that reflect the way in which management exercises this responsi-bility.

Whether or not Applicants harassed wcrkers or otherwise deviated from Appendix B requirements, as alleged, affects our assessment of the adequacy with which QA/QC observed the quality of the plant. In assess-ing the significance of QA/QC deficiencies and the remedies that might be appropriate with respect to such deGeiencies, we wotild be concerned were we to conclude that presenf management has difficulty assessing and learning from management's previous errors. Consequently, should carefulness be missing from Applicants. studies of their own manage-ment behavior (or should Applicants fail to develop an adequate under-standing of their own behavior), we would consider the implications of that lack of concern.'

To the extent that the CPRT does not assess management actions, including actions with respect to this litigation, we are hopeful that the Staff will rise to fill that woid. If not, we will need to consider whether to declare a sua sponfe isstre, considering all the evidence before us as this case is developed.

Since Applicants have withdrawn their summary disposition motions, we will not act on those motions.2 Typically, when a motion is withdrawn it becomes moot. However, the submission of these summary disposi-tion documents may reflect on management's ability to understand and I

Of cot.rse, to the extent that the evidence might indicate tr.at Apphcants' Q UQC program was ade.

quate, the need for management to demonstrate an appreciauon for its own deficiencies mould be diminished.

2 Although Apphcants appear to be withdrawing all their summary disposition motions. including those we have s' ready acted on. we do not interpret their motion to apply to withdrawal of mot ons covered by fmal decisions of the Board. If we are incorrect in this interpretation. Applicants should notify us promptly, statmg why they would have us withdraw decisions that we have already issued.

757

i-4 1

l 4 control the quality of design.3 The af0 davits were submitted for our formal consideration. To the extent that the evidence was incomplete or misleading, we still expect Applicants to fuldll their obligation to correct our record. If necessary,,they should explain the reason for the incom-plete or misleading affidavits.

Order For all the foregoing reasons and based on consideration of the entire record in this matter, it is, this 2nd day of October 1985, ORDERED:

Applicants' September 25,1985 hiotion for hiodi0 cation of our order of August 29, 1985, is granted in part - by clarification in the accom-

~

panying hiemorandum of the Board's concern about the independence of the CPRT. In all other respects. the blotion is denied.

FOR THE ATOhllC SAFETY AND LICENSING BOARD i

j

! Peter B. Bloch, Chairman ADh11NISTRATIVE JUDGE I . Bethesda, Staryland 4

3 We note that our December 1983 Stemorandum and Order. I.BP.53 81,18 NRC 1410 at 1452 concluded, in part, that "[tihe record before us casts doubt on the design quality of Comanche Peak, both because applicant has failed to adopt a system to correct design dereciencies promptly and because our record is devoid of a sausractory explanation for several design questions raised by intervenors."

Nothing subsequendy presented to us, up to this time, has detracted from this conclusion.

I'

~

758 i

i

.,,m , ym,--,--s~... , , . - - - , - . - , -%~ ..-,--- -, - , ,

• Cite as 22 NRC 759 (1985) LBP 85 40 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Herbert Grossman, Chairman Dr. A. Dixon Callihan Dr. Richard F. Cole In the Matter of Docket Nos. 50-456-OL 50-457 OL (ASLBP No. 79 410 03 OL)

COMMONWEALTH EDISON COMPANY (Braidwood Nuclear Power Station, Units 1 and 2) October 4,1985 The Licensing Board grants a protective order providing for confiden-tial treatment of the names and otherwise identifying information of In-tervenors' quality assurance witnesses to be disclosed to the other parties during discovery.

RULES OF PRACTICE: PROTECTIVE ORDER The Board weighs the benefit of encouraging confidential deposition testimony upon the prima facie showing of its significance to the pro-ceeding and the witnesses' reluctance to otherwise testify for supportable reasons, against the detriment ofinhibiting public access to the informa-tion and the cumbersome procedures that a protective order necessitates, and finds the balance in favor ofissuing the protective order.

759 i_ _ _ __

MEMORANDUM AND ORDER (Granting Protective Order)

Memorandum I. INTRODUCTION Intervenors Bridget Little Rorem, et al., have moved for an order providing for confidential treatment of the names and otherwise identify-ing information regarding prospective witnesses on Intervenors' Quality ,

Assurance contention. Intervenors seek the entry of a protective order limiting the disclosure of such identifying information during the course of this litigation. The order sought would confer confidentiality protec-tions only during the present discovery phase of these proceedings (al-though the protections afforded would continue thereafter), but no re-quest is now made for a ruling on in camera evidentiary hearings that might follow, which Intervenors submit (Intervenors' Motion at 7 8) would be premature and speculative at this time and may well not ulti-mately be required.

. - Intervenors seek confidential treatment at this time for eleven present and former L.K. Comstock quality control inspectors and, as necessary, for other prospective witnesses to be identified by Intervenors at a later date. The protective order would provide for limited disclosure of names and identifying information strictly on a "need to know" basis as re-quired for participation by a party in the proceeding. Disclosure of such protected information would be limited to persons who have executed af-fidavits of nondisclosure to be filed with the Board and available to the parties. Although Intervenors appended to their motion a copy of a form of protective order and affidavit of nondisclosure that was approved by the Commission with regard to a security plan in Pacy7c Gas and Electric Co. (Diablo' Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-24, 11 NRC 775 (1980), Intervenors submit that a less elaborate order and affidavit would effectively meet the needs for confidential treatment bere. Intervenors would undertake to negotiate the contents of such an order and affidavit with the other parties if this motion is granted.

Applicant and NRC Stafroppose the motion.

-We grant the motion and authorize Intervenors to negotiate the con-tents of the order and affidavit with the other parties, to be submitted to the Board for approval. If an agreement is not forthcoming, Intervenors shall submit a proposed order and alTidavit to the Board.

760

a ., , . . . . . . ~ .. - .=. - ..; . .- .- ~ _.... _ -.n, , . . . . . ~ . ~ . . _ . _ . . .

i.

II. FACTUAL BASIS FOR INTERVENORS' MOTION Intervenors summarize the factual claims of harassment and fear of reprisal in their motion and rely upon an unexecuted alTidavit of one Comstock QC inspector, that was appended to Intervenors' prior motion, of July 12, 1985, concerning the protective order. The unex-1 ccuted affidavit indicates tha't the affiant QC inspector has personal knowledge of widespread intimidation, harassment and retaliation at e

Comstock; has had extensive discussions with at least thirty other Com-stock QC inspectors, who have knowledge of harassment and intimida-

)~ tion by Comstock management and who, he believes, would cooperate i with the Licensing Board; and has spoken to at least ten Comstock QC inspectors, who were eager to present such testimony and provide docu-mentation, but had expressed fear of retaliation based upon harassment which they have already experienced. According to Intervenors, howev-er, the affiant has become fearful of being fired by Comstock manage-ment if he takes any further voluntary affirmative steps in this proceed-ing such as executing the affidavit, and has consequently not signed it.

As part of their factual basis for the motion, Intervenors also refer to the finding of a U.S. Department of Labor area director sustaining an em-ployee's complaint of unlawful discrimination by Comstock in violation of the employee protection provisions of the Energy Reorganization Act of 1974, 42 U.S.C. l 5851, and to a March 29, 1985 complaint to the NRC by twenty four Comstock QC inspectors of harassment and techni-cal concerns, including threats of physical violence by a Comstock super.

visor. Intervenors further state that, as directed by the Board, after the July 23,1985 prehearing conference they communicated further with each of previously identified sixteen Comstock QC inspectors and that j eleven of the sixteen expressed fear of. reprisal or discrimination,

, requested confidential treatment of their names, and asked intervenors to seek a pro' tive order providing for the maximum protection availa.

ble even whei. absolute confidentiality could not be secured.

1 h

III. DISCUSSION In opposing Intervenors' motion for protective order, Applicant and Staff rely heavily upon Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating Statien, Unit 1), ALAB-327, 3 NRC 408 (1976), as estab-lishing the standards for granting a protective order for withholding in-formation from the public. According to Applicant (Applicant's Re-sponse at 3) and StaL'(Staff's Response at 2), the Appeal Board adopted a four-part analysis requiring that a party seeking to protect information

' 'h 761

)

l I

l L

l from public disclosure must demonstrate: (1) that the information is of a type customarily held in confidence; (2) that the information has in fact been kept confidential by its originator; (3) that the information is not available from public sources; and, (4) that there is a rational basis for holding the informaticn conGdential.

We do not find the Wol/ Creek standards, which involve the protec-tion of proprietary information, to be of much assistance in determining whether the public interest would be served by the issuance of an order to protect the confidentiality of prospective witnesses. Nevertheless, in-tervenors' showing appears to satisfy the four requirements: (1) We take ofHeial notice of the fact that the NRC Staff and Atomic Safety and Licensing Boards (whether or not in published orders) have customarily granted conGdential treatment to quality control inspectors who would otherwise refuse to come forward with information concerning harass-ment and intimidation for fear of reprisal by the company. (2) The names of the prospective witnesses have been kept con 6dential, to the extent of being disclosed only to a more limited class than under the pro-posed protective order. (3) The information is not currently available to those who would not receive it under the protective order. And, (4) there is a rational basis for treating the ~information confidentially, if we are to believe the representations by Intervenors that the prospective witnesses would be fearful of coming forward with their information without confidentiality because of past incidences of harassment and in-timidation, including the three instances of individual reprisal enumerat-ed in Intervenors' motion (at 3-5).

The situation here stands in stark contrast to that of Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),

ALAB-535,9 NRC 377 (1979), upon which Applicant and Staff rely so heavily to deny the request for conGdentiality. In Allens Creek, the Appeal Board denied " standing" to an intervenor organization that sought to base its representational standing on the residence of a member in close proximity to the facility site, whose name the organiza-tion would not disclose to the parties or the Beard. The organization pro-posed submitting an affidavit by its attorney attesting to the proper standing. In rejecting this approach, the Appeal Board noted that such a procedure would deny the Board and the other parties the right "to determine for themselves, by independent inquiry if thought warranted,

.whether a basis existed for a formal challenge to the truthfulness of the assertions" ofintervenor. 9 NRC at 393 (emphasis in original).

Here, the names of the protected witnesses would be disclosed to the other parties and the Board, and the parties would have every right to depose these witnesses. All of the assertions made in Intervenors' 762

1 motion and in the unexecuted affidavit attached to Intervenors' prior motion could be tested by the other parties.

The Board does not favor conferring confidentiality on witnesses or in-formation. The main detriment is not to the ability of the parties to marshal their known witnesses and information to counter unfavorable confidential testimony. The parties, after all, will have whatever informa-tion is disclosed during the confidential discovery, on a "need to know" basis. Rather, the price that will be paid is in not having the confidential information disclosed to the public so that further information, unknown to the' parties at this time, might become available to them and the Board. In that respect, we can only surmise that Intervenors' case would be harmed more than that of the other parties by having the information disclosed to the parties during discovery kept confidential from the public, because of Intervenors' more limited access to direct information about practices on the site. But, be that as it may, we do not see any -

great harm in granting this limited confidentiality at this discovery stage, considering that, while information gleaned through discovery is legally accessible to members of the public, it is rarely disseminated to them.

On the other hand, if confidentiality is not offered at this point, we risk losing the testimony of a number of witnesses who might make a valuable contribution to the hearing record according to the pnma facie showing made by Intervenors.

We are further persuaded from Intervenors' motion that Intervenors have made some effort at informing the prospective witnesses of the limited nature of the confidentiality that would be bestowed by the pro-tective order and the risks attendant upon maintaining their secrecy, as opposed to public disclosure and the full protections that might be af-forded them under the Energy Reorganization Act of 1974, 42 U.S.C.

f 5851. We are not convinced that their choice oflimited confidentiality, rather than full public disclosure, is in their best interest. However, we are noi fully knowledgeable about their working conditions. It is possible that any perceived threats to'their employment security might emanate more from fellow employees and low-level supervisors who might not become privy to the confidential discovery, than from higher-level em-playees who would receive that information on a "need to know basis.

We make no determination that the prospective witnesses should be in fear of reprisal for testifying or that they have wisely chosen to seek confidentiality. We simply weigh the benefit of encouraging their tes-timony, upon the primafacie showing made by Intervenors ofits signifi-cance to this proceeding and the witnesses' reluctance to testify other-wise for supportable reasons, against the detriment of inhibiting public access to the information and the cumbersome procedures that a protec-763 i

I

'A tive order necessitates, and find the balance in favoring of issuing the protective order.  !

Order

- For all the foregoing reasons and based upon a consideration of the i entire record in this matter, it is, this 4th day of October 1985, ORDERED l (1) That Intervenors' motion for a protective order is granted, (2) That intervenors'- counsel is directed to negotiate the form and substance of the protective order and accompanying aflidavit of non-disclosure; and

,0) That Intervenors are directed to submit a proposed protective order and affidavit subsequent to their negotiation with the other parties,

. with or without agreement.

. FOR TFIE ATOMIC SAFETY AND LICENSING BOARD flerbert Grossman, Chairman ADMINISTRATIVE JUDGE October 4,1985 Bethesda, Maryland  ;

a e

764 1 . . ,

,-.=w.n- , . . . , - , re,- , . . , + . ,---,v,----,,- ..,--,,--r. . ~,,,,,r-,,-m,--,-.. - - , . , , , , - , . - , - - , , . , , _ , , - - - - - , - - . - -

Cite as 22 NRC 765 (1985) LBP 85 41 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chairman Dr. Kenneth A. McCollom Dr. Walter H. Jordan Herbert Grossman, Esq.

In the Matter of Docket Nos. 50-445-OL&OL-2 50 446-OL&OL-2 (ASLBP No. 79 430 06 OL)

TEXAS UTILITIES ELECTRIC COMP ANY, et af.

(Comanche Peak Steam Electric Station, Units 1 and 2) October 31,1985 In this Memorandum and Order, the Licensing Board rules on various procedural matters.

RULES OF PRACTICE: DISCOVERY; SEPARATE DOCKETS When two separate dockets for an operating license case are interrelat-ed, discovery filed in one docket should be considered filed in both and responses should be made unless the request is irrelevant to both dockets.

RULES OF PRACTICE: EVIDENCE; SEPARATE DOCKETS When two separate dockets for an operating license case are interrelat-ed, evidence filed in one docket should be considered filed in both and may be relied on in the other docket ifit is relevant.

765

~+

RULES OF PRACTICE: MULTIPLE REPRESENTATIVES OF PARTIES Multiple representatives of a party should coordinate their cases.

RULES OF PRACTICE: DISCOVERY When a case is unfolding gradually because of a major study that is under way, it is appropriate for a party to request documents that have not yet been created; such documents should be supplied as they become available.

RULES OF PRACTICE: DISCOVERY Parties should exchange information voluntarily. Also, when a party believes that discovery requests made of it.seem too broad, they should be narrowed by a rule of reason and re'sponded to in the narrowed form.

QUALITY ASSURANCE: DESIGN Errors in design documents are an iitdependent concern, regardless of whether they may be' corrected before the plant is completed. Although errors may be made, signiGcant errors should be promptly identiGed, documented, and corrected with reasonable speed. When Applicants become aware of deviations from these principles, they should investi-gate the root cause of the deviations.

TECHNICAL ISSUE DISCUSSED Quality Assurance for Design.

MEMORANDUM AND ORDER (Procedural Rulings; Board Concern About QA for Design)

Memorandum This Memorandum addresses issues raised in the course of the discov-ery process that is under way and it also raises a Board concern arising out of a Board notice of a meeting between Staff and the Applicants about pumps and valves.

766 l

l

.. .-,.-. .-  :.- - --. = .... .. _ . . a. -. : . . . - - - - - .- . .- - .

I. PROCEDURAL MATTERS On October 25 to 28 the parties responded to discovery matters raised by the Board in an off-the-record telephone conference held on October 15, 1985. In that conference, the Boards asked the parties to respond to the following statement:

This is a single case: (a) in which CASE's representatives should make a good faith effort to toordinate their discovery activities. (b) in which Appheants should provide more speciGc responses to discovery, identifying prior responses whenever they believe that they have been subject to a redundant request and (c) in which objections as to relevance may not be restricted to relevance to a particular docket.

Applicants disagree that this is a single case. To the extent that there are two separate Boards with separate jurisdiction, based on the Notice of Hearing for each case, Applicants are correct. However, as other par-ties have pointed out, the cases are richly intertwined. As a consequence there are matters occurring in one docket that may be relevant to the other docket. To that extent, the two Boards agree that discovery re-quests filed in one docket shall be deemed to be filed in the other docket as well. Hence it will not be necessary for either Board to make narrow procedural rulings whose only consequence would be refiling in the other docket.'

With respect to evidence, it also is obvious that materialin one docket may be relevant in the other. The Board has discussed this question with respect to paint quality assurance, for example. To the extent that there may be a pervasive breakdown in paint quality assurance, this appears to be relevant to the question of whether paint quality assurance inspectors or Mr. Lipinski may have been subjected to harassment or intimidation.

Thus, technical questions in docket I may bear on issues in docket 2.

Since the dockets are factually intertwined, a party may wish to rely on evidence from the other docket. We consider it preferable to permit such reliance rather than to require refiling the evidence in the second docket.

The extent to which a party in one docket relies on evidence in the other docket will be revealed when the party files proposed findings of fact.' Hence, there will be no fair notice problem. Lawyers in both dock-ets must, therefore, be alert to implications for the other docket. We I Given the way in which the Boards have determmed that this case may be considered a smgle case ror purposes or discovery. there is no need ror us to clarity the scope or Docket 2, as stafr requests. Docket 2 deals with harassment and intimidation - terms bearms a natural meanmg. We also recall havmg commented on the meanmg or these terms previously.

767 9

. . _ _ . _ _ . _ _ . _ _ _ __ _ __ .._......_.1 _. . _ . _ . . _ . . _ _ _ . . _ _ . - . . .- . ._ . _

will consider evidence relevant to one docket to be available for citation in the other docket, providing that it is relevant to the issues in the second docket.

We note that both parties.have multiple representatives who should coordinate their discovery activities, including their responses to discov-ery. Similarly, both parties should identify particular prior responses when they respond to an interrogatory or document request by claiming to have responded to discovery in the other docket.

To the extent that Applicants have objected to discovery requests be-cause they refer to documents not yet in existence, we do not expect to honor ' hat objection. If there are no documents of a requested type available. Applicants should say so. Then, given the gradually unfolding nature of this case, they should update their response periodically until the period of discovery is closed by Board order, pursuant to this Order

~

of the Board and to 10 C.F.R. { 2.740(e)(3).

We continue to encourage cooperation among the parties concerning the informal exchange ofinformation. To the extent that any of the par-ties have objected to the participation of other parties in meetings to ex-change information, we are hopeful that a more cooperative attitude may prevail in the future. Each of the parties has demonstrated the abili-ty and willingness to participate in constructive dialogue. We are hopeful .

that each of the parties will keep this in mind a'nd will not only encourage cooperation but will seek to learn from and benefit from the contribu-tions of the other parties.

In the interest of efliciency, we require parties faced by a discovery re-quest considered to be overly broad to explain why the request is too broad and, if feasible, to interpret the request in a reasonable fashion and to supply documents (or answer interrogatories) within the realm of reason.

II. STRESS ALLOWABLES FOR ACTIVE VALVES The Board in the principal docxet has discussed the Summary of Meet-ing Held on September 17, 1985 - for NRC/TUGCO to Discuss the Potential Deviation from FSAR Commitment on Stress Allowables for Active Valves (filed with us October 17, 1985). We are concerned that the problem discussed in that meeting should be pursued further with re-spect to the Board's findings on Quality Assurance for Design, set forth in LBP-83-81,18 NRC 1410,1428 (1983); LBP-84-10,19 NRC 509, 513 (1984) ("[t]here has been no recognition that errors in design docu-ments are an independent concern, regardless af whether they may be corrected before the plant is completed. . Although errors may be 768

- - _ .L " ~i _ .. " ': " ~ * ' _

^

. - ~ 7' = - = = = = =

L d

h 1 made, significant errors . . . should be promptly identiGed, ' document-L ed,' and corrected with reasonable speed.")

i In particular, we are concerned that there may not have been a proce-j dure to document deGeiencies in specifications detected by vendors, that

there apparently was no documentation of or prompt followup of such '

, deficiencies in this instance and that whatever system existed to control the quality of design documents did not detect. that speciGcations had deviated from FSAR commitments. We expect the Applicants or the

~

StafT to investigate the implications of these problems for the. adequacy of the system for controlling the quality of design documents. -

. Order For all the foregoing reasons and based on consideration of the entire record in this matter, it is, this 31st day of October 1985, ORDERED:

1. Discovery requests Gled in one docket shall be deemed to be Gled in the other docket as well.

2. Evidence relevant to one docket is available for citation in the '

other docket.

3. Both parties have multiple representatives who should coo'rdinate.

their discovery activities.

, 4. Both parties should identify particular prior responses when they respond to an interrogatory or document request by claiming to have re-sponded to discovery in the other docket.

5. Parties faced by a discovery request considered to be overly broad should explain why the request is too broad and, if feasible, should inter-pret the request in a reasonable fashion and supply documents (or answer inte'rrogatories) within the realm of reason.

6. To the extent that this Order affects the validity of discovery re-sponses or objections that have already been Gled, a party may promptly file an amended response.

FOR TIIE ATOMIC SAFETY AND LICENSING BOARDS i

Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland 769 I h

. , . - < - - , . . , . . . , . , , - .n, n-nn,---,,,, n-,-n --, ,-~ . . . , . , - - - - - - , ~ , , - - - , . , - - - .

i A

e l

e-l NU R EG-0750, Vol. 22, No. 4 NUCLEAR REGULATORY COMMISSION ISSUANCES OCTOBER 1985 <

{ Pages 651-769 f 1,

l 1

G G

._ - e ap, a ,

• 0 N* *wW _

w .g , , __

-,-,,-c,. _ _ . , __. _

-_ - , _ _