ML20149H089
| ML20149H089 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 11/04/1994 |
| From: | Mcgarry J LOUISIANA ENERGY SERVICES, WINSTON & STRAWN |
| To: | |
| References | |
| CON-#494-15909 ML, NUDOCS 9411100095 | |
| Download: ML20149H089 (42) | |
Text
/5 M a
"k 00CKETED USNRC UNITED STATES OF AMERICA 04 t!DV -7 P 4 :01 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAR _Q OfflCEOfSE[YEIAbY 00CXEiiG ~..A oCE-BRAhCH
)
In the Matter of
)
)
LOUISIANA ENERGY SERVICES, L.P.
)
Docket No. 70-3070-ML
)
(Claiborne Enrichment Center)
)
)
APPLICANT'S REPLY TO PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FILED BY INTERVENOR CITIZENS AGAINST NUCLEAR TRASH AND THE NRC STAFF REGARDING CONTENTIONS H.
L.
AND M 1.
INTRODUCTION l
Pursuant to 10 C.F.R.
S 2.754 (a) (3) and the Licensing Board's Order of July 28, 1994, Louisiana Energy Services, L.P.
(Applicant or LES), hereby replies to Proposed Findings of Fact and Conclusions of Law filed by IntervenorF and the NRC StaffF regarding Contentions H, L,
and M.
F
" Citizens Against Nuclear Trash's Proposed Findings of Fact and Conclusions of Law Regarding Contention H, Claiborne Enrichment Center Emergency Planning Deficiencies,"
October 7, 1994
(" CANT PF(H)"); " Citizens Against Nuclear Trash's Proposed Findings of Fact and Conclusions of Law Pertaining to Contentions L and M," October 7, 1994
(" CANT PF (L,M) ").
F NRC Staff's Proposed Findings of Fact and Conclusions of Law In the Form of a Partial Initial Decision Regarding Contentions H, L,
and M," October 21, 1994 ("NRC PF").
9411100095 941104 17 PDR ADOCK 07003070 0
C PDR
'9
90 6
2.
HACKGROUND By Order dated July 28, 1994, the Board directed all parties to this proceeding to file proposed findings of fact and conclusions of law on contentions H, L and M based on the evidence presented at the hearing.F In accordance with the Board's Order, Applicant filed Proposed Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision, including a classified addendum, on September 1, 1994 ("LES PF").
Intervenor filed Proposed Findings of Fact and Conclusions of Law Regarding Contention H on October 7, 1994, and separately filed Proposed Findings of Fact and Conclusions of Law Regarding Contentions L and M on the same date.
The NRC Staff filed Proposed Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision on October 21, 1994.
In accordance with 10 C.F.R. S 2.754 (a) (3) and the Board's Order of July 28, 1994, Applicant now files this reply, which is intended to supplement Applicant's proposed findings (LES PF) of September 1.F F
Order (Schedule for Filing of Proposed Findings of Fact and Conclusions of Law), July 28, 1994.
F On October 24, 1994, Intervenor filed a motion for leave to file " clarified" proposed findings of fact and conclusions of law pertaining to Contentions L and M.
At the same time, Intervenor filed the " clarified" proposed findings of fact and conclusions of law.
Applicant notes that Intervenor's action is highly unusual and not provided for in the regulations or the Board's ruling governing this proceeding.
Nevertheless, without waiving its opportunity to respond to Intervenor's October 24 motion, Applicant herein addresses Intervenor's original and " clarified" proposed findings..
O 3.
APPLICABLE RULES AND STAU;2R15 3.1.
" Solar, Wind, Waste, and Geothermal Power Production Incentives Act of 1990" (Pub.L. 101-575) 3.1.1.
Contrary to Intervenor's assertion (CANT PF(H) at 1 3; CANT PF(L,M) at 1 2), Section 103 of the Atomic Energy Act ("AEA") is not a relevant standard for purposes of this proceeding.
As the NRC Staff has noted (NRC PF at 1 10),
Pub.L. 101-575, S 5(a), amended the AEA definition of " production facility" by adding the following sentence:
Except with respect to the export of a uranium enrichment production facility, such term [ production facility) as used in chapters 10 and 16 shall not include any equipment or device (or important component part especially designed for such equipment or device) capable of separating the isotopes of uranium or enriching uranium in the isotope 235.
Pub.L. 101-575, S 5(a); Section liv of the Atomic Energy Act, as amended, 42 U.S.C.
S 2014 (v).
The effect of the amendment was to remove, with one exception, the licensing of a uranium enrichment-facility from the provisions of Chapter 10 (Atomic Energy 1
Licenses), which includes Sections 101 and 103, and Chapter 16 (Judicial Review and Administrative Procedure) of the AEA.F The one exception was the licensing requirement for the export of a uranium enrichment production facility, in that said facility is a " production facility" for purposes of exportation under the amended AEA definition and, therefore, subject to the export licensing provisions of AEA Sections 101 and 103.
As that exception is not applicable here, Section 103 of the AEA is not F
See 57 Fed. Reg. 18,388-395 (1992).
-3 i
9 a relevant standard for purposes of this proceeding.
As the NRC Staff notes (NRC PF at 1 19), Section 5 of Pub.
L.
101-575 further amended the AEA with respect to the licensing of uranium enrichment facilities by adding a new Section 193.
The Board concurs with the NRC Staff's explanation of the effect of Section 193 (see NRC PF at 1 19).
3.2. Reaulations Pertainina to Contention H 3.2.1.
NRC guidance on emergency planning is
{
provided by Regulatory Guide 3.67, " Standard Format and Content of Emergency Plans for Fuel Cycle and Materials Facilities,"
January 1992
(" Reg. Guide 3.67").F Contrary to Intervenor's assertion (CANT PF(H) at 1 5), Reg. Guide 3.67 is not itself a requirement that binds LES.
3.3. Reculations Pertainina to Contentions L and M 3.3.1.
Intervenor is incorrect in its assertion (CANT PF(L,M) at 11 4,
S 74.33."
In promulgating Section 74.33, the Commission noted j
that the regulation "was written with full consideration of IAEA 1
agreements."
56 Fed. Reg. 55,991, 55,992 (1991).
However, these considerations do not impose on NRC licensees separate obligations to ensure compliance with IAEA standards.
As the Board has noted, the NRC has " accommodated anything the IAEA would need with the provisions of the present rule (10 C.F.R.
S F
Reg. Guide 3.67 was issued in 1992 not 1982 (see NRC PF at 1 21).
74.33]".
Memorandum and Order (Ruling on Contentions),
December 19, 1991.
Thus, compliance with NRC requirements is sufficient to satisfy IAEA considerations.
3.4.
Burden of Proof 3.4.1.
As Intervenor notes (CANT PF(H) at 1 6),
pursuant to 10 C.F.R.
S 2.732, Applicant carries the ultimate burden of proof in this proceeding.
At the same time, however:
"where one of the other parties to the proceeding contends that for a specific reason the permit or license should be denied, that party has the burden of going forward with evidence to buttress that contention.
Once the party has introduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant, which as part of its overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license."
Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1093 (1983) (emphasis in original) (quoting Consumers Power Co. (Midland Plant, Units 1 and 2), AI AB-12 3, 6 AEC 331, 345 (1973)); see also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1245 (1984); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-20A, 17 NRC 586, 589 (1983) ("Although an Applicant has the ultimate burden of proof in a licensing proceeding, an intervenor has the burden of going forward with respect to its own contentions.") (emphasis in original)..
~
3.5.
Qualification of Expert Witnesses 3.5.1.
The Board has not found, as Intervenor suggests (CANT PF(H) at 1 9), that CANT's witness Clifford R.
Earl is qualified as an expert in the field of emergency planning.
Nor does the Board agree with Intervenor's suggestions (CANT PF(H) at 1 9) that Mr. Earl has extensive emergency planning and related experience or that his experience is highly relevant to radiological emergency response planning.
The Board finds that Mr. Earl is qualified by knowledge, experience, training and education to testify in the matters raised in his prefiled testimony (Tr. at 79).
4.
CONTENTION H, EMERGENCY PLANNING 4.1.
Findinos of Fact 4.1.1.F Contrary to Intervenor's suggestion (CANT PF(H) at $$ 7, 43, 92), LES does r.ot rely on offsite fire fighters to control stetage yard fires which could lead to worst case releases if not controlled within 30 minutes.
Intervenor's citation to FSAR S 9.2.2.7.1 for this proposition is inapposite.
FSAR S 9.2.2.7.1 explains that " failure of the offsite fire brigade to respond" is one of at least eight events that must all occur simultaneously in order for the postulated storage yard fire to occur.
It does not follow that such an event could occur if any of those eight events were to occur.
For example, F
This 1 numbering system is not tied to the 1 numbering system in Applicant's initial proposed findings of September 1 (LES PF) ; however, references to those initial proposed findings are provided herein, as appropriate, to identify the proposed findings being supplemented by this reply..-
response of the offsite fire brigade is not necessary to prevent the postulated fire scenario, unless all of the other listed conditions exist (one of which is failure of the onsite fire brigade to respond).
See LES PF at 1 4.1.27.
In any event, as Applicant has testified, the CEC has fire fighting equipment and personnel who will respond in the event of a fire at the CEC.
Therefore, there is little likelihood that off-site fire fighting capability will be required.
LeRoy at 19.
As Applicant has further testified, the
-site fire fighting capability will be relied upon as a backup to on-site fire fighting capabilities.
LeRoy at 19.
4.1.2.
Intervenor is incorrect in its conclusion (CANT PF(H) at S 7) that Applicant, having placed reliance on off-site organizations for its emergency response, is responsible for fulfilling all relevant emergency planning requirements and applicable guidance with respect to those off-site organizations as if they were on-site organizations.
Clearly, NRC guidance suggests certain actions regarding coordination with off-site organizations; however, it does not follow that those organizations and their personrel become part of the licensee's organization for purposes of compliance with emergency planning requirements.
See NRC PF at 1 70.
As Applicant has testified, off-site organizations will provide off-site functions, as noted in EP S 3.1.3, and will also participate on-site, if needed, as noted in EP S 4.3.
Such organizations have the capability, and
~
the EP accommodates an on-site role by providing for escorts for coordination with on-site personnel.
4.1.3.
Applicant has argued not that the level of detail required by the Board is excessive (CANT PF(H) at 1 20) but rather that the level of detail sought by the Intervenor is not called for by applicable regulations and guidance (LES PF at S 4.1.11).
In his direct testimony, Mr. Earl offered specific criticisms of the EP, which were based on his experience in action planning and resource planning.
Mr. Earl identified several areas in which particular details of the emergency response plan are not reflected in the EP; however, Intervenor fails to acknowledge that NRC regulations governing the content of an EP for a uranium enrichment facility do not require that those details be included in the EP for this type of facility.
For example, while we agree that training of fire fighters should include details such as prerequisite qualifications, training objectives and training plans to achieve the stated objectives, we do not agree that these details are required to be in the EP.
Eventually, we expect Applicant to prepare these plans.
To require these details in the EP, however, would detract from the purpose of the EP as a high level planning document.
Such detail is beyond the scope of the regulation, which repeatedly calls for brief descriptions in the EP.
- See, e.a.,
10 C.F.R.
S 70.22 (i) (3) (x).
Reg. Guide 3.67 at 3.67-2 calls for descriptions of procedures in the EP, relegating the details of
-8
~
the procedures themselves to subsequent NRC review prior to operation.
4.1.4.
Intervenor asserts that details which are fundamental elements of Applicant's emergency response should not be relegated to Emergency Plan Implementing Procedures ("EPIPs")
because "they are not part of the license and may not be enforceable."
In this regard, Intervenor introduces, and asks the Board to take official notice of, a letter from the Director of the NRC's Office of Enforcement to Intervenor's counsel concerning the enforceability of EPIPs.
See Letter from James Lieberman, Director, NRC Office of Enforcement, to Diane Curran, Esq., dated October 5, 1994.
The Board declines to take official notice of the referenced letter, as the time for seeking official notice has passed.
Each fact officially noticed must be specified in the record "with sufficient particularity to advise the parties of the matters which have been noticed or brought to the attention of the parties before final decision and each party adversely affected by the decision shall be given opportunity to controvert the fact."
10 C.F.R. 5 2.743(i)(1); Fed.
R. Evid. 201(b).
Where a party seeks to rely on official notice, the facts to be noticed should be raised prior to the close of the evidentiary record.
Long Island Lichting Co. (Shoreham Nuclear Power Station, Unit a
1 ) ', LBP-88-13, 27 NRC 509 (1988); 10 C.F.R. S 2.743(i) (2)
(addressing appeals from decisions involving official notice).F Aside from the fact that Intervenor's request for official notice in not timely, Intervenor fails to make clear the facts which it seeks to have officially noticed.
In a transmittal letter forwarding its proposed findings, Intervenor asks that the Board take official notice of "the Commission's policy with respect to the enforceability of the Applicant's Emergency Plan Implementing Procedures."
It is not at all clear that the referenced letter constitutes the Commission's policy on this matter in issue in this proceeding.
In Kerr-McGee Chemical Corn., ALAB-885, the Atomic Safety Licensing and Appeal Board ruled that " official notice is especially inappropriate where.
i 1
there is an ongoing dispute between the parties over what the F
In Inauiry Into Three Mile Island Unit 2 Leak Rate Data Falsification, 25 NRC 671, a party requested that the licensing board take official notice of a " preliminary notification of event or unusual occurrence" and " reproduced pages of TMI-2 control room logs covering the six weeks preceding the [TMI-2] accident."
The documents were attached to the party's proposed findings, which were submitted to the Board after the close of the record.
In denying the party's request, the Licensing Board stated:
If the [ party] wished to have the documents entered into the record, where they would have been subject to objections by the parties, they should have raised the documents as exhibits before the close of the record.
The rules and regulations on official notice carve out a narrow area of applicability and clearly indicate that official notice of the.
attachments would not be appropriate.
Inauiry Into Three Mile Island Unit 2 Leak Rate Data Falsification, LBP-87-15, 25 NRC 671, 687-88 (1987).
e document says."
Kerr-McGee Chemical Coro. (Kress Creek Decontamination), ALAB-885, 27 NRC 59, 69 (1988).
In any event, the Board finds that it is not r.acessary to take official notice of the referenced letter in order to resolve this matter.
A licensee's failure to comply with regulatory requirements is enforceable.
10 C.F.R. S 2.201(a).
To the extent that EPIPs address regulatory requirements, we find they are enforceable, as Applicant has acknowledged, Tr.
9.
The Board rejects Intervenor's assertion (CANT PF(H) at
$ 16; Earl at 3) that, for purposes of this licensing proceeding, the EPIPs must be described in sufficient detail to enable the reviewer to independently assess whether or not preplanning is adequate to assure that appropriate protective measures will be taken in the event of a radiological emergenc;'.
The Board finds that "the EPIP are among the details of implementation of the Emergency Plan, and it is not necessary to include them in the Emergency Plan."
Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), LBP-77-68, 6 NRC 1127, 1157 (1977).
As the Commission stated in its Denial of the Petition for Rulemaking in Docket No. PRM-50-14, Public Interest Research Group:
The Commission has not found it necessary to have detailed implementation information submitted for review along with the emergency plans provided in the FSAR.
Prior to issuing an operating license and annually thereafter for the life of the plant, the NRC inspection program looks into the adequacy of the details of the Emergency Plan and the implementing procedures.
Assurance is provided through these inspections that the commitments made in the Emergency Plan are in fact met, and reasonable assurance is 11 -
obtained that appropriate measures can and will be taken in the event of an emergency.
42 Fed. Reg. 36,326 (1977).
Intervenor incorrectly asserts that only those aspects of the EPIPs that are already described in the EP will be enforceable against LES during plant operation (CANT PF(H) at 1 21).
Intervenor suggests, for example, that if the EP does not specifically commit to provide off-site fire fighters with annual training in their on-site fire fighting responsibilities, there will be no assurance that such a commitment would be placed in the EPIPs (CANT PF(H) at 5 21).
Regulatory compliance matters should be enforceable regardless of whether they are described in the EP.
With respect to the training example offered by Intervenor, we note that such training is not required and therefore need not be reflected either in the EP or the EPIPs; however, we accept Applicant's testimony that the fire department has volunteered for such training and that it will be provided on an annual basis.
This willingness to participate is also reflected in the letter from the fire department to LES (see EP,
- p. 11-6).
4.1.5.
Intervenor suggests that Mr. LeRoy was unable to demonstrate that the omissions or ambiguities in the EP that Mr. Earl identified were insignificant or did not exist (CANT PF(H) at 5 13).
The Board finds, to the contrary, that each of Mr. Earl's points was addressed in Applicant's testimony, that a number of the issues were clarified at the hearing by Applicant and Staff witnesses, and that the remaining points sought
- 12
information beyond that required by NRC regulations or addressed in NRC guidance.
For example, Mr. Earl testified that Applicant has not provided adequate information on the number of contaminated or chemically injured individuals that the local hospital can accommodate (CANT PF(H) at 1 124; Earl at 22).
In fact, Mr. LeRoy's prefiled testimony (LeRoy at 16, 34) explains the hospital's capabilities and cites the relevant EP Table (4.4-1).
Intervenor seeks "more specific" details (CANT PF(H) at 1 126), which simply are not required or necessary to ensure the adequacy of emergency care.
As another example, Intervenor asserted that the EP does not define "off-site response teams,"
" warning points," " assembly areas," and " relocation areas."
Earl at 19, 23-24.
As Intervenor acknowledged, Applicant clarified that " assembly areas," " muster areas," and " relocation areas" are one and the same thing (Tr. 175; EP at 1-1) and that references to off-site response teams in the EP are to the off-site emergency response organizations listed in the EP, e.g.,
the Claiborne Sheriff's Office, the Claiborne Parish Fire District, the Homer Memorial Hospital, and the ambulance service.
Tr. 170.
4.1.6.
The Board finds that Intervenor's suggestion that the record does not contain any testimony chat was effective in dispelling the safety concerns raised by Mr. Earl is an incorrect statement of fact.
Applicant's written testimony refutes a number of these points.
In addition, Applicant's rebuttal testimony and cross-examination of Mr. Ramsey provided testimony that effectively dispelled Mr. Earl's concerns.
For example, Mr. Earl testified that the EP provides only a vague statement that offsite emergency personnel are
" periodically" trained (CANT PF(H) at 1 35; Earl at 7; Tr.
146-7).
Mr. LeRoy's written testimony states clearly that "the off-site support organizations have agreed to participate in annual training" (LeRoy at 15), and Mr. Ramsey testified similarly.
Tr. 164.
Indeed, Mr. Earl acknowledged in his testimony that the EP "does leave an implication that training that may be required for whatever purpose would be acquired at periodic, apparently annual meetings and training" (Tr. 146; see also Tr. 104-105).
We find that the record is clear on this matter.
4.1.7.
The Board finds that the criteria offered by Mr. Earl for evaluating the completeness and workability of an emergency plan (CANT PF(H) at S 14), while they may be roughly analogous to the criteria contained in Reg. Guide 3.67, are not controlling in this proceeding.
4.1.8.
Intervenor incorrectly asserts that LES has failed to provide identification of off-site personnel who are responsible for receiving accident notification and relaying it to off-site agencies (CANT PF(H) at i 20).
Applicant has provided information concerning notification of authorities in EP SS 3.2.1, 3.2.2, 4.2.1, 4.3, 4.4, and 5.4.4.
In particular, EP Table 3.3-1, S 10, identifies the persons and warning points to be notified.
EP S 4.2.1 identifies the CEC Emergency Coordinator as the person responsible for notifying state authorities and the 1
I NRC.
Pursuant to EP SS 3.2.1 and 3.2.2, the state will be notified within fifteen minutes of the declaration of a site emergency or an alert, and the NRC will be notified within one j
hour.
In addition, the CEC Emergency Coordinator is responsible for recommending and initiating on-site protective actions and for recommending off-site protective actions.
LeRoy at 16.
Applicant described the dispatch process for initiating an off-site response through the sheriff's office.
Tr. 90.
Intervenor's witness acknowledged that the process is in place.
Earl, Tr. 121-122.
This process appears adequate, and Intervenor did not point out any deficiency in this process.
Also, we have addressed (LES PF at 1 4.1.11) the need for extensive details, such as the titles of those who are to receive phone calls, and found this amount of detail to exceed the amount called for by the Commission's regulations.
LES PF at
$ 4.1.19.
4.1.9.
The Board rejects Intervenor's suggestion that information about the qualifications of offsite personnel is necessary in order to evaluate whether or not they have the knowledge, skills, and ability to successfully perform their planned duties in the event of an energency (CANT PF(H) at $ 26).
This is not the regulatory standard.
4.1.10.
The Board rejects Intervenor's position that successful performance of fire fighting duties by off-site organizations may require specialized knowledge, skills and abilities that the fire fighters may not possess (CANT PF(H) at +
1 27).
Intervenor's assertion contradicts the Commission's view that, with respect to emergency planning for a facility such as the CEC, actions required of off-site organizations are considered within their normal capabilities.
54 Fed. Reg.
14,051, 14,052, 14,057 (1989).
i Intervenor identifies 10 C.F.R. SS 70.22 (i) (3) (i) and 4 0. 31 (j ) ( 3 ) (i) as "NRC's regulatory requirements regarding qualifications of offsite emergency support organizations to handle exposure to radicactive contamination or toxic chemicals."
Earl at 4, Question 5.
We do not agree.
These regulations call for a description of the facility and area near the site.
Mr.
Earl also cites Reg. Guide 3.67 S 1.3.
This guideline does suggest that Applicant specify whether the local fire stations, I
police stations, hospitals and other offsite emergency support organizations are qualified to handle exposure to radioactive contamination or toxic chemicals.
Thus, although nowhere in the emergency planning rule is Applicant required to provide qualification information, and although the Commission assumes that off-site organizations will handle accidents in the same manner as they handle "a truck or rail accident in which hazardous chemicals had been or were being released" (54 Fed.
Reg. at 14,057), Reg. Guide 3.67 does call for such information.
Nonetheless, Applicant has committed to this Reg. Guide, has provided qualification information, and the NRC staff has found it acceptable See LES PF at 5 4.1.8. o
4.1.11.
The Board has no basis for doubting that the representations made by Metro Ambulance, the Claiborne Parish Fire District No.
6, or Homer Memorial Hospital regarding their qualifications for responding to accidents at the CEC are based on accurate information provided by LES (CANT PF(H) at 1 29).
Metro Ambulance Service cites its capability to transport radiologically contaminated individuals (EP Attachment A at 11-4), and the Lisbon Volunteer Fire Qepartment (Claiborne Parish Fire District No. 6) has indicated that it intends to respond to emergencies at the CEC.
(EP Attachment A at 11-6).
Each of these off-site organizations was made aware of the potential hazards of the CEC prior to submitting these commitments.
EP S 10.8 (cognizant organizations reviewed the EP); Tr. 93 (fire chief reviewed the EP).
Intervenor has offered no evidence to support its position that the characterization of accident hazards at the CEC that LES provided to these off-site organizations was inadequate.
The specific commitments of support from these organizations following their review of the EP indicates that the organizations consider themselves qualified to provide their stated services given the expected hazards.
Applicant has demonstrated that off-site response personnel will be qualified to perform appropriate support functions during an emergency at the CEC for which their services are requested.
Off-site organizations are to be trained on hazardous materials and toxic chemicals (Tr. 96), facility access control (normal and emergency), potential accident scenarios, exposure guidelines, personnel monitoring devices, communications, contamination control, and the organization's role in responding to emergencies at the CEC.
EP S 7.2.3.
The objective of the training is to ensure off-site organizations have the necessary qualifications in each of these areas.
This should involve familiarizing the organizations with the specific hazards, procedures and equipment at the CEC; fire companies are assumed to be prepared for such hazards in their normal course of business, and already possess the necessary protective equipment for toxic chemical hazards (i.e.,
respirators, clothing).
EP S 7.3; Tr. 96.
Off-site organizations are invited to participate in quarterly training on emergency drills, first aid, use of self-contained breathing apparatus, and review of applicable procedures.
EP S 7.3; Ramsey, Tr. 164.
Metro Ambulance and the i
Lisbon Volunteer Fire Department have committed to participate in periodic training and drills, and Homer Memorial Hospital has committed to participate in training.
EP S 11.
Applicant testified that EP Table 4.4-1 identifies the capabilities of off-site support organizations.
EP S 4.3 states that the Emergency Plan Implementing Procedures will identify the equipment and training that may be needed by local off-site support organizations, including the ability to handle exposure to radioactive contamination or toxic chemicals.
Additionally, physicians will be made aware in advance of the possible chemical and radiological hazards which they might be required to treat.
LeRoy at 5-6; EP at 4-6.
We dismiss as pure conjecture Intervenor's assertion (CANT PF(H) at 1 30; Earl, Tr. at 149) that police and fire officials have a natural tendency to speak positively of their ability to do a job, whether or not they have made a realistic appraisal of the requirements involved.
There is no evidence in the record to suggest that this is the case with respect to the subject emergency response organizations.
Applicant's information supports the Commission's assumption that off-site organizations are qualified to respond to the hazards presented by this facility.
We find that Applicant has provided adequate assurance that off-site organizations are qualified or will be qualified through training and drills by the time the CEC begins operation.
4.1.12.
Intervenor cites 10 C.F.R. S 70.22 (i) (3) (x) which requires that an EP contain "a brief description of the frequency, performance objectives and plans" for emergency response training and alleges that the EP provides virtually no information that would demonstrate compliance with these provisions (CANT PF(H) at 11 34-35).
The Board finds, to the contrary, that Applicant has satisfied this requirement.
Training and exercise requirements for facility and off-site personnel are provided in EP SS 7.2 and 7.3.
EP S 7.4 provides information related to exercise critiques and the commitment to track any identified deficiencies and ensure that corrective actions are implemented.
Applicant testified that the on-site fire brigade will be trained to be the first responders to a -
fire.
Tr. 173.
All workers at the CEC will be trained in the physical characteristics and potential hazards associated with plant processes and materials.
Therefore, facility workers will know and understand how to lessen their exposures to chemical and radiological substances in the event of an incident at the CEC.
LeRoy at 9.
Further, Applicant will train Claiborne Fire District No. 6 in the site emergency planning procedures.
EP S 7.2.3.
Claiborne Fire District No. 6 will provide or have access to the necessary equipment to respond to an incident at the CEC.
Equipment capabilitien are shown in EP Table 4.4-1.
LES will provide the equipment shown in EP Figure 6.4-1 and described in EP S 6.4.4, which includes, for example, respirators and protective clothing.
LeRoy at 18.
The Board views these as commitments to ensure adequate training of emergency response personnel rather than " vague promises to place unspecified information and commitments in the EPIPs at some time in the future" (CANT PF(H) at M 44).
While Intervenor seeks a " careful description" of training procedures (CANT PF(H) at S 44), the regulations require only a general description of such plans.
In any event, Intervenor has acknowledged that the EP provides that off-site organizations will be trained on hazardous materials and toxic chemicals, facility access control, potential accident scenarios, exposure 1
guidelines, personnel monitoring devices, communications, contamination control, and the organization's role in responding to emergencies at the CEC.
These commitments, combined with the 1
i
~
assurances from the off-site organizations that they are qualified and prepared to provide emergency response assistance to the CEC lead us to find that Applicant's treatment of these matters is adequate.
(See LES PF at SS 4.1.23, 4.1. 2 4. ) 2' 4.1.13.
In numerous instances, Intervenor inaccurately refers to emergency response measures by off-site organizations that are "necessary" to protect on-site personnel or mitigate on-site accidents (CANT PF(H) at 1 33) and seeks information on " complete annual training for all offsite emergency response personnel with onsite responsibilities."
CANT PF(H) at S 37.
As Applicant has testified, the on-site fire brigade will be trained to be the first responders to any fire at the CEC and will have principal responsibility for controlling such fires.
Off-site fire fighting capability is viewed as supplemental to this on-site capability and is not relied upon in CEC accident analyses.
In view of the evidence presented on the backup role of off-site fire fighting personnel, LES's plans for training those personnel, and the NRC Staff's eventual role in reviewing training practices and reviewing the EPIPs that will govern emergency response training, the Board finds that the Applicant has met its burden of proving that off-site fire fighters will be adequately trained to provide any necessary 2'
If the Commission had intended that off-site personnel receive training prior to facility licensing (as opposed to operation), the regulations would not include a requirement for an offer of training (which contemplates that training is a future act), but rather would have mandated that it be accomplished prior to licensing.
support in the event of a fire at the CEC.
We reject Intervenor's assertion (CANT PF(H) at $$ 45-47) that the Applicant has failed to describe the qualifications or training for off-site fire fighters.
4.1.14.
Intervenor incorrectly asserts that the EP is deficient because it fails to describe performance objectives for training of personnel in off-site organizations (CANT PF(H) at 1 38).
As Intervenor recognizes (CANT PF(H) at 1 38), the EP provides that off-site organizations will be trained on hazardous materials and toxic chemicals, facility access control, potential accident scenarios, exposure guidelines, personnel monitoring devices, communications, contamination control, and the organization's role in responding to emergencies at the CEC.
Obviously, the goal of such training will be to ensure that the off-site organizations are sufficiently prepared in these areas to enable them to perform their functions in the event of an emergency at the CEC.
4.1.15.
Intervenor states that the EP is deficient for failing to specify what functions off-site fire fighters may perform on-site or whether they will take a major role (CANT PF(H) at $$ 56, 60).
As Intervenor notes, however, Applicant hau testified that there is little likelihood that off-site fire fighting capability will be required and that, in any event, the off-site fire fighting capability will be relied upon as a backun to on-site fire fighting capabilities.
CANT PF(H) at $ 59 (citing LeRoy at 19).
Applicant further testified that the 1
authority, responsibilities, and interface with other organizations for each off-site emergency organization is provided in EP SS 3.2, 3.3, 4.2, 4.3, 4.4, 5.2 and 5.4.
LeRoy at 30.
Specifically, Applicant will provide an escort to interface with the off-site organizations responding on-site.
Tr. 93-94, 134, 167, 174.
In keeping with applicable Commission regulations, the emphasis of Applicant's EP is on notification of off-site organizations and coordinating with those organizations.
See 10 C.F.R. S 70.22 (i) 93) (viii).
In addition, the EP notes that off-site fire fighters will be trained in, among other areas, potential accident scenarios and the organization's role in responding to emergencies at the CEC.
The Board finds that Applicant has adequately described the potential on-site role of off-site fire fighters and the means of on-site coordination between on-site and off-site fire fighting personnel during an emergency at the CEC.
4.1.16.
We reject Intervenor's unsupported assertion that "the timing of the arrival of fire fighters on the site could be crucial to preventing a severe off-site release" (CANT PF(H) at T 65).
As discussed in S 4.1.1, above, Applicant's accident analysis does not take credit for off-site response as crucial to preventing a severe off-site release, nor has Intervenor controverted Applicant's testimony that off-site assistance would be available in a timely manner if requested.
Intervenor also claims the EP does not provide sufficient detail to determine whether the on-site emergency
~
organization will be adequately staffed to respond to a fire emergency during non-normal working hours.
CANT PF(H) at 11 64, 105-108; Earl at 18.
Mr. Earl, however, has provided no evidence to indicate that staffing will be inadequate.
Applicant has testified that backshifts will be adequately staffed, and EP S 4.2 describes how the operating crew will be augmented to meet any emergency at the CEC.
Specifically, Section 4.2 identifies the number and qualifications of personnel on site during non-regular hours, and identifies which of these personnel fills key positions in the emergency organization.
The remaining emergency organization positions are staffed by personnel summoned to the facility.
LeRoy at 21 and 28.
The NRC also finds the emergency organization staffing to be adequate.
Ramsey at 6; SER at 10-42.
All persons under the supervision of CEC management, including backshift staff, will receive fire protection training.
In addition, as discussed in FSAR S 11.3.1.1.2, the facility will be staffed, including on backshifts, with a fire brigade -- a group of facility employees skilled in fire prevention, fire fighting techniques, first aid procedure, and emergency response.
The fire brigade serves as the first response team for fighting any fire at the CEC.
FSAR S 11.3.1.1.2.
On cross-examination, Intervenor's witness acknowledged that fire control would be provided by security personnel and that the EP (at 4-1) calls for the requisite number of security personnel during non-regular hours, backshifts, and weekends.
Tr. 131-133..
The Board finds no merit in Intervenor's suggestions that Applicant's representations regarding the numbers of available fire fighters are inconsistent and inadequately supported (CANT PF(H) at 5 68) and disagrees with Intervenor's assertion that "nowhere in the EP or LES' testimony does LES demonstrate or even assert that the necessary number of offsite fire fighters will be able to arrive at the CEC within 30 minutes" (CANT PF(H) at 5 72).
Intervenor's assertions ignore completely the testimony of Mr. LeRoy (LeRoy at 18-19; LeRoy, Tr.
at 88-95), which provides assurances that an adequate fire fighting contingent will be available.
Intervenor incorrectly asserts (CANT PF(H) at SS 63-78) that the EP does not provide important information concerning the actual availability of fire fighters (see EP Table 4.4-1).
Intervenor's witness did not provide any evidence that sufficient numbers of fire fighters would be unavailable, either during the day or at night, nor did he provide evidence of unwillingness to respond.
Applicant did, howaver, address these issues.
Mr. LeRoy questioned the claiborne Parish Fire District No. 6 Chief about fire fighter willingness and received a positive response.
Tr. 92.
Mr. LeRoy testified to the adequacy of the dispatch method, Tr. 90, and presented evidence of a less than half-hour response time to the area of the CEC site based on a review of Fire Department logs.
LeRoy at 19.
Response times were closer to 10 minutes at night and 15 minutes during the day.
Tr. 88.
The number of fire.
~
fighters responding was in the range of 20-25 people.
Tr. 89.
The " pool" of volunteers was about 75.
Tr. 91.
Intervenor asserts that "there are some circumstances in which offsite fire fighting organizations must be able to arrive at the CEC and put out a serious fire within 30 minutes" (CANT PF(H) at 1 73), but Intervenor has failed to demonstrate that aDY off-site fire fighting contingency would be necessary to respond to an on-site fire at the CEC, or the circumstances under which such a response would be required.
In addition, Intervenor has failed to controvert, with any evidence of its own, Applicant's assertion that, assuming such a response were necessary, it could be provided in a timely manner.
Applicant testified that off-site fire fighter response times in Claiborne Parish have averaged "less than one-half hour" (LeRoy at 9) and indeed testified on redirect that the typical response time is approximately 10 minutes for a response at night and 15 minutes to respond during the day.
LeRoy, Tr. at 88.
Contrary to Intervenor's suggestion that Applicant has altered evidence (CANT PF(H) at S 69), we note that this testimony is not inconsister.t with statements in the EP that fire fighters will respond to the CEC within one hour (EP Table 4.4-1).
Given the level of detail required at this stage and the absence of any contrary showing by Intervenor, we find that Applicant's assertions regarding availability of fire fighters and anticipated response times are adequate.
4.1.17.
The Board dismisses as pure speculation Intervenor's suggestions (CANT PF(H) at 11 75-76) that volunteer fire fighters may be unwilling to respond to a request for assistance at the CEC.
Applicant has demonstrated that the Claiborne Parish Fire District intends to respond to emergencies at the CEC (EP Attachment A at 11-6) and has committed to j
participate in periodic training and drills (see LES PF at 1 4.1.8).
Mr. LeRoy testified that the Fire District force is briefed on possible radiological materials as part of its hazardous material awareness training and that the EP contemplates training on toxic chemicals and radiological hazards (LeRoy, Tr. 96).
Applicant has also provided testimony that it has had discussions with the fire chief concerning his authority to commit the firefighters to the CEC, that the fire chief indicated that he had reviewed the EP, and that there had never been any unwillingness of firefighters to respond to a fire (LeRoy, Tr. at 92-93).
In view of the absence of any evidence from Intervenor to the contrary, the Board finds that Applicant's showing on this matter is sufficient.
4.1.18.
The Board disregards Intervenor's observations regarding equipment capability (CANT PF(H) at S 78) since, as Intervenor acknowledges, LES clarified these matters on the witness stand.
To the extent that Intervenor's concerns are based on the fact that certain of Applicant's testimony is not reflected in the EP itself, the Board finds that it may make the requisite finding and leave to the NRC Staff the duty of ensuring that the EP is supplemented, as necessary, to reflect Applicant's testimony.
- See, e.a.,
Public Service Co. of New Hampshire-(Seabrook Station, Units 1 and 2), LBP-89-32, 30 NRC 375, 569 (1989) ("[W)here commitments to amend an emergency plan are
'sufficiently detailed and concrete' to support a predictive finding (i.e., reasonable assurances) 'that they can and will be implemented in the event of an emergency,' a Board may make the requisite finding and leave to the Staff the duty of ensuring implementation of that commitment.") (quoting Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), LBP-82-100, 16 NRC 1550, 1563, 1578 (1982)); see also Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1106-07 (1983)
(" implementing procedures" that supplement emergency plans with details likely to change, such as telephone numbers, are not required for " reasonable assurance" finding).
4.1.19.
The Board disagrees with Intervenor's characterization of the requisite level of detail to be provided by Applicant in the FSAR concerning accident scenarios and analyses (CANT PF(H) at $$ 84-86, 90-93) and finds that Intervcnor's assertions are beyond the scope of the contentions-admitted in this proceeding.
Intervenor incorrectly asserts that Applicant's FSAR provides insufficient detail concerning the nature, location, timing, potential complicating effects, and potential consequences of postulated accidents at the CEC (CANT PF(H) at i 84).
Intervenor suggests that these alleged deficiencies prevent the formulation of effective emergency i
response plans.
In short, the Board rejects Intervenor's attempt to litigate contentions that were denied or withdrawn at the outset of this proceeding.
In particular, Intervenor's Contention C alleged that the license application for the CEC violated NRC regulations by treating a number of reasonably foreseeable accidents as not credible and by failing to fully evaluate their potential impacts on health and the environment, to protect adequately against them, or to provide adequate emergency measures.
34 NRC 332, 340.
The Board denied this contention.
1d1 In particular, the Board denied Basis C.4, concerning Applicant's analysic of storage yard fire scenarios, on the grounds that Intervenor "has not indicated how LES fails to comply with the proposed GDC (particularly the 30-minute or longer fire), how the LES storage-yard fire analysis fails to meet the requirements, or how the various protection systems provided by LES are inadequate."
34 NRC at 342.
- Likewise, Basis 21 of Contention H, in which Intervenor alleged that Applicant had not provided emergency plans for postulated accidents, was denied by the Board, on the grounds that Intervenor had not identified which accidents inust be considered or what deficiencies exist in Applicant's submittal, which discusses a variety of postulated accidents and abnormal operational events."
34 NRC at 347.
Intervenor's attempt to -
reopen these matters through proposed findings on Contention H will not be permitted.
Even if the Board were to entertain Intervenor's assertions regarding these denied contentions, we would not accept Intervenor's conclusions.
For example, Intervenor incorrectly suggests that the EP must enable off-site organizations to prepare for "the full scope of accidents that they may face."
CANT PF(H) at S 91 ("LES' description of potential accidents at the plant is entirely inadequate to help
[ local governments and offsite emergency response organizations]
prepare for the full scope of accidents that they may face." Earl at 15.).
Once again, Intervenor fails to recognize that off-site response organizations will not necessarily be called on to assist with on-site emergencies, that all pertinent off-site organizations have nevertheless indicated that they have reviewed the EP, are prepared and qualified to respond, and have agreed to participate in training and exercises.
In addition, Intervenor again fails to acknowledge that such detail is beyond the scope of the regulation, which repeatedly calls for brief descriptions i
in the EP.
- See, e.a.,
10 C.F.R. S 70.22 (i) (3) (x).
{
4.1.20.
Intervenor incorrectly asserts that the EP does not provide sufficient detail to demonstrate that offsite authorities can or will be notified promptly of an emergency at the CEC and does not make clear who will notify all off-site authorities (CANT PF(H) at S 98).
The Board finds that these matters have been adequately addressed in the evidence presented by Applicant, including the testimony of Mr. LeRoy.
- Indeed, Intervenor appears to concede that Mr. LeRoy's testimony clarified these points (see, e.a., CANT PF(H) at 1 101) ("in Mr.
LeRoy's testimony it became apparent
[that] the Sheriff's dispatcher apparently is responsible for activating an automatic siren to call fire fighters to the fire house").
While Intervenor asserts that such " mere assurances by LES are insufficient" (CANT PF(H) at 1 103), the Board finds to the contrary that this testimony directly addresses Intervenor's concerns and provides assurance that Applicant's notification plans are adequate.
Intervenor suggests that these matters must be fully and accurately described in the EP rather than in testimony before the Board.
The Board finds that Applicant has made a sufficient showing concerning the adequacy of its plans for notification of off-site response organizations and leaves it to the NRC Staff, as part of its pre-operational review, to ensure that the EP is supplemented, as necessary, to reflect the Applicant's notification plans.
4.1.21.
The Board rejects Intervenor's premise (CANT PF(H) at 1 105) that the EP must indicate that plant personnel have had the necessary training.
Intervenor's premise runs contrary to the regulations, which require that the Applicant provide at the time of licensing a plan for responding to an emergency, not a certification that all elements of the plar. are in place.
- See, e.a.,
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-89-32, 30 NRC 375, 569 (1989) (regarding Board review of applicant's emergency response plans, "our task is not to assess what is, but rather to
~
determine what needs to be and whether there is reasonable assurance that what is necessary can be acquired or performed in a timely manner").
4.1.22.
The Board rejects Intervenor's assertions that Applicant has not clearly identified the means of notification of off-site response organizations.
As Intervenor acknowledges (CANT PF(H) at $$ 102, 113), Applicant has clarified, through testimony, the process for notifying off-site organizations of an emergency at the CEC as well as the definition of terms such as " warning points."
Intervenor asserts that the EP does not describe for each participating government agency its interface with other government agencies (CANT PF(H) at 1 111) but provides no basis for its implicit assertion that such information is required.
The Board finds that Applicant is not required to furnish such information.
4.1.23.
The Board finds that Applicant has provided sufficient information regarding the availability and adequacy of medical facilities to accommodate an emergency at the CEC.
Table 4.4-1 of the EP provides information on the capabilities of the Homer Memorial Hospital, and Letters of Agreement from the Hospital provide assurances that emergency medical services, including ambulance transportation, will be available.
EP S 11..
The additional information sought by Intervenor (CANT PF(H) at 15 126, 129) is not necessary to support a finding that the EP is satisfactory in this respect.
See Vircinia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), LBP-77-68, 6 NRC 1127, 1157 (1977) ("the EPIP are among the details of implementation of the Emergency Plan, and it is not necessary to include them in the Emergency Plan.
The same may be said of
[intervenor's] contention.
that the details with respect to the availability and commitment of doctors should be included.").
4.1.24.
EP S 7.'.
provides that offsite organizations will be invited to quarterly drills in addition to full scale biennial (not biannual) exercises.
See NRC PF at S 46.
4.2. Conclusions of Law Recardina Contention H We find Applicant's EP to be acceptable.
Applicant's program contains the brief descriptions called for by regulation, and conforms to the Commission's regulatory guidance.
Intervenor appears not to be familiar with the scope of the rule and asks for details that go beyond the regulations and guidance.
Much of Intervenor's testimony questions the detail of Applicant's description of off-site organizations' qi.alifications.
- However, nowhere did Intervenor provide evidence that off-site organizations were inadequate, or offer other evidence that would in some way rebut the Commissions assumptions as to the adequacy of off-site organizations.
Therefore, we conclude Applicant's EP complies with the emergency planning requirements of 10 C.F.R.
S 70.22(i).
To the extent that Intervenor's concerns are based on the fact that certain of Applicant's testimony is not reflected in the EP itself, the Board finds that it may make the requisite finding and leave to the NRC Staff the duty of ensuring that the EP is supplemented, as necessary, to reflect Applicant's testimony.
5.
CONTENTIONS L AND M 5.1. Eindinas of Fact Recardina Contentions L and M 4
5.1.1.
As Intervenor notes, Ms. Hunt does not have a 1
security clearance and has not had access to Applicant's classified information contained in the FNMC Plan (CANT PF(L,M) at $ 10).
Intervenor has failed to introduce any evidence
]
addressing the question of whether unlawful diversion of material can occur at the CEC, given the existing design and programs.
Intervenor's witness, having not seen Applicant's classified information regarding cascade configuration or detection of unauthorized enrichment, is left only to speculate as to these matters.E See LES PF at S 5.1.6.
In short, Intervenor has proposed no findings of fact to rebut those of the other parties.
5.1.2.
We reject CANT's conclusion that valves or l
any other device for regulating flow must be present at the CEC because Applicant " strenuously [ argues] against monitoring of such valves."
CANT PF(L, M) at $ 23.
Information regarding the non-existence or existence of valves within the cascades at the E
In fact, we note that Intervenor's " clarified" proposed findings would eliminate what few attempts CANT has made to characterize Applicant's FNMC Plan.
See CANT " Clarified" PF at T1 32-34. )
i
CEC is classified information and is contained in the Classified Addendum to the LES Safety Analysis Report (LES Exhibit 1B).
5.1.3.
The thrust of Intervenor's " findings of fact" concern the legal significance of IAEA standards (which are inapplicable here, as discussed below) and unsupported assertions regarding the design configurations or processes necessary to meet such standards.
It appears that Intervenor seeks to reopen matters raised in Contention 0, which was denied by the Board at the outset of this proceeding.
See Memorandum and Order (Ruling on Contentions), December 19, 1991 at 45; 34 NRC 33?, 356.
Contention 0 alleged that pursuant to the Hexapartite Agreement, the NRC should require that plant hardware design in every CEC cascade be conducive to effective online gas enrichment monitoring by the IAEA.
Id.
The Board denied this contention, stating:
"the notion that the designers of the plant need consult with the IAEA to facilitate inspections has been rejected by the Commission.
We see nothing else in the contention.
It is rejected."
Id.
Intervenor nevertheless restates this denied contention almost verbatim in the form of proposed findings and conclusions of law (see, e.c.,
CANT PF(L,M) at S 32) ("In order to ensure that gas centrifuge equipment at the CEC is not unlawfully diverted to the production of HEU, and that the IAEA can independently verify such, LES's FNMC Plan should require continuous online enrichment monitoring for all cascades, and should stipulate minimum inner pipe diameters of 110 millimeters forLproduct header pipes exiting cascade' halls.").H' -The Board rejects Intervenor's attempts to resurrect denied Contention O.
5.2. Conclusions of Law Recardino Contentions L and M L
"This Board 5.2'.1.
As Intervenor has pointed out:
is. charged with determining whether or not the safeguards technology as required by 74.33 have [ sic] been established."
Tr. 268.
And as we noted, the Licensing Board is "to apply the NRC regulation to the design as submitted.
"- Tr. 287.
We have determined, after review of the testimony and evidence, including Applicant's classified information, that Applicant's design and FNMC Plan comply with 10 C.F.R.
S 74.33; tia.eref ore,
there is no need for additional design considerations to ensure that the CEC is conducive to CEMO or other IAEA considerations.
Intervenor's exclusive focus on the latter considerations renders meaningless its " findings of fact."
For example, while it may be true that "the IAEA assumes that the U'
This is not the first time Intervenor has attempted to reopen this matter.
As Applicant asserted in its Motion to Strike portions of Intervenor's prefiled testimony of Ms.
Helen Hunt on July 25, immediately prior to beginning adjudication of Contentions L and M, portions of Ms. Hunt's testimony addressed matters not in contention, specifically, the need to design the facility to accommodate International Atomic Energy Agency (IAEA) safeguards and the adequacy of~
Applicant's program to resolve indicators under 10 C.F.R.
S 74.33 (a) (5).
Applicant withdrew the portion of its Motion to Strike which dealt with IAEA considerations based on Intervenor's assurance that it was "not arguing that such a particular requirement needs to be imposed on Applicant (as did Contention O), but is'merely noting that the material control technologies and hardware that CANT proposes would facilitate cooperation with objectives of the IAEA."
Intervenor's July 19, 1994, Opposition to Applicant's Motion to Strike.
operators and employees of the facility, and perhaps the national government, are in collusion for purposes of creating HEU" (CANT PF(L,M) at 5 10) or that "under the IAEA standard it is considered ' credible' that the entire staff of the facility as well as the national government are involved in the illegal diversion of the facility for HEU production" (CANT PF (L,M) at 1 11), the veracity of these statements simply is not pertinent to the matters being decided here.
5.2.2.
In this regard, Intervenor's proposed findings are replete with mischaracterizations of the legal standard applicable to the issues raised in Contentions L and M.
For example, Intervenor asserts (CANT PF(L,M) at $ 10) that LES's classified information regarding hardware and administrative measures relied on to prevent and detect clandestine HEU production must be considered irrelevant, unless the effectiveness of such measures is capable of independent verification by the IAEA.
However, Intervenor cites no legal authority for this proposition.
Intervenor insinuates that this proposed standard is appropriate "for purposes of evaluating compliance with IAEA standards" (CANT PF(L,M) at $ 10); however, compliance with IAEA standards is not the issue in this proceeding.
Rather, the Board concerns itself with whether the Applicant satisfies NRC regulations, which the Commission has deemed sufficient to satisfy IAEA considerations.
In the same vein, Intervenor states that certain design features and administrative measures are " inadequate as a matter of law" unless their effectiveness can be-independently verified by the IAEA (CANT PF(L,M) at 1 10).
This is simply an incorrect statement of the law applicable to this proceeding.U' Intervenor further asserts that certain of LES's testimony regarding the effectiveness of its classified safeguards measures is " irrelevant to an assessment of whether LES complies with IAEA safeguards requirements" (CANT PF(L,M) at 1 11).
Again, Intervenor fails to recognize that this assertion is itself irrelevant to the matters in issue in this proceeding.
Intervenor states that "nowhere in its unclassified summary does LES claim that the effectiveness of its measures to prevent or detect unautho'rized production of HEU could be independently verified by the IAEA (CANT PF(L,M) at 1 12).
The Board finds that no such showing is required.U' 5.2.3.
Rather than providing findings of fact to support its contentions, Intervenor seeks to amend the legal standard established by the Commission to govern these matters.
The absence of any findings of fact to support Intervenor's Contentions L and M may be explained by Intervenor's recent effort "to correct any potential misconception that CANT is challenging LES's domestic safeguards program" and its plain D'
We reach the same conclusion with respect to Intervenor's
" clarified" proposed findings on these points.
E' Here again, we reach the same conclusion with respect to Intervenor's " clarified" findings on this point.
- 38
1 1
statement that " CANT makes no such challenge."M' Contentions L and M, however, clearly deal with the sufficiency of LES's safeguards program, as they challenge the adequacy of the CEC Fundamental Nuclear Material Control ("FNMC") Plan.M' Intervenor's declaration that it is not challenging the sufficiency of LES's safeguards program, combined with its failure to introduce any evidence in support of Contentions L and I
M, leaves the Board to find that Intervenor has not met its burden of going forward with respect to these contentions.
While Applicant carries the ultimate burden of proof in this proceeding, Intervenor has the burden of going forward with respect to its own contentions.
To the extent that Intervenor's theory has even established a prima facie case, it has been rebutted.
6.
ORDER 6.1.
The Licensing Board finds and rules based on the evidence before it that Applicant's Emergency Plan and Fundamental Nuclear Material Control Plan comply with the Commission's regulations in 10 C.F.R.
SS 40.31(j), 70.22(i), and 74.33.
Thus, the Licensing Board rejects Intervenor's Contention H,
Bases 2-7, 10, 17, 20 and 23, Contention L and Contention M.
M' Intervenor's Motion for Leave to File Citizens Against Nuclear Trash's Clarified Proposed Findings of Fact and Conclusions of Law Pertaining to Contentions L and M, October 24, 1994, at 1.
D' 10 C.F.R.
S 74.33 (b) (1) requires an FNMC plan which i
describes how the performance objectives of the Material Control and Accounting system ("MC&A") required by, inter alia, S 74.33(c) will be met.
I :
I
The Licensing Board has received into evidence the relevant licensing documents as well as the NRC staff's Safety Evaluation Report ("SER") and has satisfied itself that Applicant's documents contain sufficient information to satisfy appropriate Commission regulations.
The Licensing Board has reviewed the SER and has satisfied itself that the NRC staff's evaluation has been adequate to support the findings to be made by the Director of Nuclear Materials Safety and Safeguards.
With the exception of matters related to Contentions B, I,
J, K, Q and W,
including matters related to 10 C.F.R. Part 51, upon which the Licensing Board will make findings in the second phase of the evidentiary hearing in this pro;eeding, we find that Applicant satisfies the standards set forth in 10 C.F.R.
SS 30,33, 40.32, and 70.23, as augmented by the Commission's May 21, 1991, Order accompanying the Notice of Hearing.
LOUISIANA ENERGY SERVICES, L.P.
J. M%d:hael'McGfarry, III Robert L.
Draper WINSTON & STRAWN, November 4, 1994 ATTORNEYS FOR LOUISIANA ENERGY
- SERVICES, L.F.
i 1
DOCKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD'
'94 MN -7 P4 :01
)
0FFICE OF SFCPETARi In the Matter of
)
00CKEllim & CimVicE
)
EftANCH LOUISIANA ENERGY SERVICES, L.P.
)
Docket No. 70-3070
)
(Claiborne Enrichment Center)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Reply to Proposed Findings of Fact and Conclusions of Law Filed by Intervenor Citizens Against Nuclear Trash and the NRC Staff Regarding Contentions H, L,
and M" were served upon the following by deposit in the United States mail, first class, this 4th day of November, 1994:
Administrative.Tudge Administrative Judge Thomas S.
Moore, Chairman Richard F.
Cole Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 (2 copies)
Administrative Judge Secretary of the Commission Frederick J.
Shon U.S.
Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S.
Nuclear Regulatory Attention: Chief, Docketing and Commission Service Section Washington, D.C.
20555 (Original plus 2 copies)
Office of Commission Appellate Eugene Holler, Esq.
Adjudication Office of the General Counsel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
p Ronald Wascom, Deputy Assistant Joseph DiStefano Secretary Louisiana Energy Services,-L.P.
Office of Air Quality &
2600 Virginia Avenue, N.W.
Radiation Protection-Suite 610 P.O.
Box 82135 Washington, D.C.
20037 Baton Rouge, LA 70884-2135 Peter G.
LeRoy
_Marcus A.
Rowden Duke Engineering and Services, Fried, Frank, Harris, Shriver &
Inc.
Jacobsen 230 South Tryon Street 1101 Pennsylvania. Avenue,-N.W.-
P.O.
Box 1004 Suite 900 South
~
Charlotte, NC 28201-1004 Washington, D.C.
20004 Diane Curran Nathalie Walker Harmon, Curran, Gallagher &'
Sierra Club Legal Defense Fund Spielberg 400 Magazine St.
C/O The Institute for Energy Suite 401 and Environmental Studies New Orleans, LA-70130 6935 Laurel Avenue,~ Suite 204 Takoma Park, MD 20912 Adjudicatory File Dr.
W.
Howard Arnold Atomic Safety and Licensing Louisiana Energy Services, L.P.
Board Panel 2600 Virginia Avenue, N.W.
U.S.
Nuclear Regulatory Suite 608 Commission' Washington D.C.
20037 Washington, D.C.
20555 Thomas J. Henderson, Esq.
David S.
Bailey, Esq.
Lawyers' Commmittee for Civil Rights Under Law 1450 G Street, N.W.
Suite 400 Washington, D.C.
20555 l
LOUISIANA ENERGY SERVICES, L.P.
Robdbt L.9&(a/6r WINSTON & STRAWN, ATTORNEYS FOR LOUISIANA ENERGY
- SERVICES, L.P.
j I
-,.. -