ML20154M453
| ML20154M453 | |
| Person / Time | |
|---|---|
| Site: | Byron, 05000000 |
| Issue date: | 01/31/1985 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20151K691 | List:
|
| References | |
| FOIA-85-409, TASK-AINV, TASK-SE ALAB-793, SECY-85-037, SECY-85-37, NUDOCS 8603140288 | |
| Download: ML20154M453 (75) | |
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ADJUDICATORY ISSUE i
( January 21, 198s (Notation Vote) SECY-8s-37 I
For: The Commissioners From: James A. Fitzgerald Assistant General Counsel
Subject:
REVIEW OF ALAB-793 (IN THE MATTER OF COMMONWEALTH EDISON COMPANY)
Facility: Byron Nuclear Station, Units 1 and 2 Petitions for Review: None Review Time Expires: February 15, 1985 (as extended) s l
I 8603140288 860115 PDR FOIA RYAN85-409 PDR l
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fM 'i&c ames A.
y, Fi zgerald .
Assistant Genera,1 Counsel Attachments: -
A. ALAB-793 -
B. OPE analysis l
t
7 Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, February 15, 1985. ' .-
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, February 7, 1985, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OPE SECY
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, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI%4 CEC 20 20:32
, ATOMIC SAFETY AND LICENSING APPEAL. BOARD OFFIC" dF 3EChtii Ar' 00CMDihG & SERV;Cl Administrative Judges: ."O Alan S. Rosenthal, Chairman December 20, 1984 Dr. Reginald L. Gotchy (ALAB-793)
Howard A. Wilber .
MED DEC 2 t)h84_ - ... . .
In the Matter of ) . .
)
COMMONWEALTH EDISON COMPANY ) Docket Nos. STN 50-454
) STN 50-455
_(Byron Nuclear Power Station, ) _
Units 1 and 2) ) -
) -- -. _
Michael I. Miller, Chicago, Illinois, for the applicant, Commonwealth Edison Company.
~ ~ ~ - ^ - ~ ' '
Jane M. Whicher and Timothy W. Wright, III, Chicago, Illinois (with whom Douglass W. Cassel, Jr., Chicago, Illinois, was on the briefs), for We intervenors, Rockford League'of Women Voters and Dekalb Area Alliance for Responsible Energy /
Sinnissippi Alliance for the Environment.
- Richard J. Rawson and Stephen H. Lewis (with whom Mitzi A. Young was on one of the briefs) for ' ' ~
the Nuclear Regulatory Commission staff.
DECISION e
4
2 This is an operating license proceeding involving the
^ '
Byron nuclear power facility located in Ogle' County,
" ~
~ ' Illinois, about seventeen alles southwest of the City of
^~
Rockford. Last January, applicant Commonwealth Edison -
- : -Company appealed from an initial decision in.which the ,
~+' '
- ~~ Licensing Board denied the operating license. application by reason of determined construction quality assurance deficiencies.1 Following consideration of that appea1, in ,
2 ALAB-770 we remanded the proceeding to the Licensing Board
-- :-- --for a further evidentiary hearing on particular quality i' ta '- assurance issues. In doing so, we (1) retained jurisdiction over the applicant's appeal, and (2) reserved judgment on
! l' - certain other issues that the Licensing Board had resolved in the applicant's favor.3
-- s 1 As employed in this LBP-84-2, 19 NRC 36 (1984).
- ' ~ opinion, the term " quality assurance" encompasses " quality - ..
control" as well. -
2 19 NRC 1163 (1984).
3 In urging that the result reached in the Licensing Board's January 1984 decision should be affirmed, the intervenors (Rockford League of Women Voters and Dekalb Area Alliance for Responsible Energy /Sinnissippi Alliance for the Environment) challenged the disposition of those issues below. This was, of course, permissible. A party is always free to urge the affirmance of a trial tribunal's result on
- grounds other than those assigned by that tribunal. See, j e.g., Niagara Mohawk-Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975).
j i
3 In compliance with ALAB-770, the Licensing Board took further evidence and, on October 16, 1984, issu'ed a
- supplemental initial decision in which, on the strength of that evidence, it concluded that the quality assurance
~
deficiencies had been rectified.4 Accordingly, the Board
- set- aside the result reached in its January .1984 initial
- - decision and authorized the issuance of operating licenses for the two-unit Byron facility.
We have heard the intervenors' challenge to that outcome on an expedited briefing and oral argument schedule.
~
For the reasons that follow, we affirm both (1) the -
Licensing Board's supplemental initial decision, and (2) its disposition of issues other than construction quality assurance as reflected in its January 1984 initial decision.
I.
QUALITY ASSURANCE ISSUES IN CONTROVERSY ON APPEAL $
A. Background
( Utilities engaged in the construction of nuclear power l
l
-- '- '~ plants are required by the Commission's regulations to have a quality assurance program that, among other things, verifies that activities affecting the safety-related functions of structures, systems, and components have been l -
\
l 4
LBP-84-41, 20 NRC .
y ,
4 performed correctly.5 While it must retain ultimate
-- responsibility for full compliance with all huslity
- assurance requirements, an applicant may delegate to its construction contractors the establishment and execution of
- individual quality assurance programs.6 This practice was -
' :- - ' -- followed at Byron with the applicant providing oversight of
-: - its contractors through audits and surveillances of
^
construction work and contractor inspection activities.7 As part of their quality assurance programs, the contractors r ;- -
were required to use properly qualified individuals to -
7" ; - '; : inspect safety-related work so as to provide. assurance that no significant construction defects had gone undetected.8 In early 1982, when the facility was completed to a significant degree, an NRC Construction Assessment Team (CAT) carried out an in-depth inspection of Byron construction.' The purpose of that inspection was to assess ,
the adequacy of certain aspects of quality assurance and construction activities, including the training,
~: - qualifications, and certification of contractor quality 10 CFR Part 50, Appendix B, Criterion I.
6 Ibid.
LBP-84-2, supra, 19 NRC at 128-29.
I_d. at 128.
I Id. at 196.
_W
5 assurance personnel. O While the NRC staff did not identify any serious construction defects, deficiencies were found involving the methods used by the contractors to evaluate the capabilities of prospective inspectors, the documentation of inspector certification, and the criteria
- ~
~ for the qualification o'f inspectors.11 These deficiencies
~ raised questions regarding the competence of the individuals performing quality assurance inspections of contractor work.
Therefore, notwithstanding the fact that the CAT inspection
- did not itself reveal any serious construction defects,
- - - there were concerns that the contractor inspectors may have overlooked such defects.12 To determine whether the inspector certification practices at Byron were adequate despite the certification deficiencies identified by the CAT inspection, the applicant developed a program to reexamine a representative sample of
- the safety-related work previously found acceptable by the 13 inspectors in question. These reexaminations were t 10 Applicant's (App.) Exh. 8 at cover letter and 65.
11 Id. at 67; LBP-84-2, supra, 19 NRC at 196-97; Tr.
fol. 780I at 4 (Forney, et al.); Tr. 7964.
. 12 Obviously, the CAT inspection did not, and could not '
with a reasonable expenditure of resources, review all of the safety-related work at Byron.
13 Tr. fol. 7549 at'5 (Stanish); Tr. fol. 7760 at 3-4 (Footnote Continued)
6 performed by inspectors who had been properly certified.14 All safety-related work inspected in the 'first ninety-
~ ^
day period by the sampled inspectors was reinspected to the
- extent possible.15 If the individual performing the
--- - reinspection agreed with at least 95% of the original -
- ~! inspector's decisions for objective attributes and 90% for
~
subjective attributes, the inspector was considered qualified regardless of any deficiencies in certification
- paperwork.16 If, on the other hand, the reexamination
" - reflected an unacceptably high error rate in a particular area of inspection (e.g. , welding) , the inspector's work in that area over the next ninety days was examined. Should the acceptance criterion not have been met for that second period, all of the inspector's remaining work in the area was then reinspected and, for that area, the number of 4
(Footnote Continued)
(Tuotken). The reexamination focused upon work inspected before September 1982. The inspections subsequent to that time were conducted by individuals whose qualifications were established through revised certification practices.
Tr. 7964-65, 7978-79.
14 Tr. fol. 8406 at 20-21 (Del George); Tr. fol. 8408 at 14-17 (Tuetken).
15 Tr. fol. 7801 at 6 (Forney, et al. ) .
16 Tr. fol. 7760 at 5-6 (Tuetken). A subjective attribute is one that requires qualitative judgment by the inspector. The only subjective attribute covered in the reinspection program was' visual weld examination. In contrast, objective attributes, e.g., as-built dimensions, require little judgment. Ibid.
7 inspectors whose work was shject.to reexamination increased by 50%.17 As of the end of 1983, the staff (and the Licensing Board) had in hand only a preliminary report on the results
- - of the reinspection program.10 Rather than await the final results of the program (which became available in February -
~
'1984), the Licensing Board elected to issue its initial decision in January 1984, denying the application for an operating licen!.e.18 In explaining that denial, the Board
- - noted that the applicant took advantage of the opportunity,
~
'~ allowed by the regulations, to delegate to its construction contractors the execution of a quality assurance program.20 The applicant, however, was found by the Board to have
" failed in its responsibility to assure that its contractors carried out their delegated quality assurance tasks."21 The Board was concerned particularly with the applicant's '
failure to assure that the contractors' quality assurance 17
. at 6.
18 See letter from Bruce D. Becker to Licensing Board
,Nov.
( 3, 1983) with enclosure.
19 LBP-84-2, supra, 19 NRC at 36.
20 Id. at 43. ,
21 Ibid.
t-8 perscnnel were properly trained, qualified, and certified.22
-- - -- Although this concern extended to virtualiy all of the
- :' contractors, the Licensing Board's result rested upon the uncertainties respecting the qualifications of only those
- - tr-
- inspectors in the employ of the Hatfield Electric Company -
- ':: - - (electrical contractor) and Hunter Corporation -(piping -
contractor). This was because, unlike that of the other contractors with quality assurance weaknesses, the work of those two companies was not subject to 100% reinspection.23
-' - - : The Board took pains to stress that, despite its denial ,
' : 7:' - of the operating license application, it had not concluded
- -- that the applicant was " institutionally unable or unwilling
- to maintain a reliable quality assurance program."24 In addition, while expressing reservations about certain
- aspects of the reinspection program, the Board indicated
- s
' ' 22 In its supplemental initial decision, the -
- - Ibid. ~
- ' ~
Licensing Board reiterated that its principal quality
~~ ~
assurance concern at Byron was with respect to inspector
. competence. LBP-84-41, supra, 20 NRC at _ (slip opinion at 121).
23 LBP-84-2, supra, 19 NRC at 196-97, 217. As a secondary matter, the Board also found Hatfield and Hunter to be documenting improperly discrepancies identified during the reinspection program. Id,. at 200, 214-16. This matter is no longer in issue.
24 -
Id. at 44.
9 that this could be a method of resolving its concerns with a.-
quality assurance at Byron.25
- on the applicant's appeal, we held that the Licensing Board correctly declined to authorize the issuance of an operating license when, by reason of lingering questions
~
- - regarding inspector competence, legitimate uncertainty
- remained respecting whether the Byron facility had been properly constructed.26 We further decided, however, that the Board should have awaited the receipt of the final 2 results of the reinspection program before arriving at an
- -- ultimate determination regarding the application for an operating license.27 Accordingly, we concluded:
- In the totality of circumstances,.the appropriate course is a further hearing to permit a full explcration of the significance of the program in terms of whether there is currently reasonable assurance that the Byron facility has been properly constructed. Stated otherwise, the focus of the inquiry should be upon whether, as s formulated and executed, the reinspection program has now provided the requisite degree of confidence that the Hatfield and Hunter quality assurance inspectors were competent and, thus, can be presumed to have uncovered any constgetion defects of possible safety consequence.
25 at 43-44, 214-16.
26 ALAB-770, supra, 19 NRC at 1169.
27
. at 1169-70.
28
. at 1178 (footnotes omitted).
~
10 In this connection, we posed several questions to be
- addressed by the Board at the remanded hearing.' Among other
~- - ~~'
things, the Board was to inquire into whether construction defects identified during the reinspection program had been
--: properly " resolved" -- i.e., either rectified or found upon .
analysis to be without safety significance.29 .
B. Remanded Hearing As contemplated by ALAB-770, with respect to the
- reinspection program, the remanded hearing focused upon r - ~
Hatfield Electric Company and Hunter Corporation. The .
N Licensing Board, however, also looked at the program results
- for the Pittsburgh Testing Laboratory (PTL) because of that
~ ~
organization's role as an independent testing contractor and its performance in connection with Systems Control Corporation.30 All Hatfield, Hunter, and PTL inspectors included in s the reinspection program passed the 95% acceptance criterion
- for objective attributes for their first three months of inspections. For visual weld inspection, Hatfield and Hunter each had one inspector and PTL had three 29 Id. at 1178-79.
30 Memorandum and Order (June 8, 1984) (unpublished) at 12-13. We discuss Systems Control Corporation later in this opinion, pp. 60-65, infra.
11
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inspectors who, for the first three months, failed to meet the 90% acceptance criterion for subje'etive httributes.
Because these Hatfield and Hunter inspectors, and two of the PTL inspectors, had performed no inspections thereafter, other inspectors underwent reexamination in their stead.
The substitute inspectors.all met the acceptance criterion.
The other PTL inspector w'ho failed for the first three months also did not meet the acceptance criterion for the second three-month period. As a result, the balance of his accessible work was reinspected. Further, the sample of PTL ,
e inspectors was expanded to encompass every such inspector who performed accessible visual weld inspections. Each of these additional PTL inspectors passed the 90% acceptance criterion for the first three months of work.31 In accordance with our direction in ALAB-770 that evidence be presented to demonstrate that the discrepancies ,
identified during the reinspection program were properly resolved, applicant witnesses described the engineering evaluations of those discrepancies that were performed by -
-- Sargent & Lundy.32 In conducting the evaluations, the 31 Tr. fol. 8406 at 27-28 (Del George); Tr. fol. 9510
~*
at 8-10 (Little, et al.).
32 See generally Tr. fol. 9044 (French); Tr. fol. 9047 (McLaughlin); Tr. fol. 9051 (Branch). Sargent & Lundy is the architect-engineer for the Byron facility. Staff Exh. 1 (Safety Evaluation Report, Feb. 1982) at 1-6.
f 4
12
- discrepancies were first compared to current design i parameters and tolerances.33 Discrepancies found to be c
i =r' -
outside these design parameters and tolerances were analyzed
- by engineering judgeent or calculations.34 Evaluations by i'r engineering judgment were performed by comparison of the
- - particular discrepancy with the design margin to ascertain -
the discrepancy's significance. All of the identified
- discrepancies (with the exception of discrepant Hatfield l
- welds that were sampled) underwent evaluation.35 J~- None of the discrepancies was determined by Sargent & ..--
I Lundy to have safety or design significance._36 _ ,
- Nevertheless, all work subject to the American Society of l -
Mechanical Engineers (ASME) Code and having discrepancies l that exceeded its examination acceptance criteria was
' - s Tr. fol. 9044 at 6 (French); Tr. fol. 9051 at 7 I (Branch). .
Tr. fol. 9044 at 6 (French) ; Tr. fol. 9051 at 7 i (Branch).
35 Tr. fol. 9044 at 6, 9 (French); Tr. fol. 9047 at 7-8 (McLaughlin); Tr. fol. 9051 at 8-14 (Branch); App. Exh. R-4 ,
l .at VI-2.
36 Tr. fol. 9044 at 8 (French); Tr. fol.9047at1N (McLaughlin); Tr. fol. 9051 at 8-14 (Branch); Tr. 9282-85.
1cwer threshold than safety l
Design significance significance (i.e. , if is a, a deficiency is not design significant, it will not be safety significant). Tr. 9159.
l l
! I
13 ,
repaired.37 All other discrepancies were either repaired or considered acceptable "as is" based on the r4sdits of the engineering evaluations.38 The decision to repair discrepant non-ASME work was made on the basis of work status in the area.3I
- ' - - - While the ruinspection program was developed for the specific purpose of demonstrating inspector co'mpetence, a secondary effort was undertaken to analyze the extensive data produced by the program to determine whether inferences could be drawn about the quality of Hatfield and Hunter work in general. Along this line, the applicant presented testimony that applied statistical principles to the reinspection data to arrive at reliability estimates of work quality.40 The applicant concluded that the quality of work is adequate.41 It based this view, however, on engineering judgment, independent of the statistical analysis.42 The g 37 Tr. fol. 8406 at 36 (Del George); Tr. 8719; App.
Exh. R-4 at Exh. C-3 and Appendix F (at F-6).
38 Tr. fol. 8406 at 36 (Del George); Tr. 8719.
38 Tr. 8825-26.
40 See Tr. fol. 9055 (Singhs.
41 Tr. fol. 8406 at 47-53 (Del George); Tr. fol. 9336 at 13-14 (Behnke). (
42 Tr. 9272-18.
14
- staff also considered the results of the reinspection program to have reinforced its positive conclusions about
- construction quality at Byron.43 on the other hand, inter-venors expressed considerable doubt whether the program was
-i - ' structured in such a manner as to allow inferences to be -
drawn respecting work quality.44 C. Licensing Board Determinations Upon consideration of the evidence produced at the remanded hearing, the Licensing Board found in its
- October 16 supplemental initial decision that the sampling
- scheme for selecting inspectors whose work was to be .
reexamined-was appropriate; that the choice of the first
-- ninety days of an inspector's tenurn was a proper time period for verifying the inspector certification process;
- - that the acceptance criteria for establishing whether an
- s i
l 43 Tr. 9872-73; Tr. fol. 10,135 at 2 (Keppler) . The
- staff testified that the primary purpose of the reinspection
~~
- program was to determine whether inspectors had overlooked
~
- significant deficiencies. Tr. fol. 9510 at 4 -(Little, et al.). But staff witness Little agreed that determining ~~
~' ' ~~
~~
- wEether the inspectors had overlooked significant
- deficiencies was equivalent to determining whether they were competent. Tr. 9582-83. Staff witness Forney had some disagreement with other staff witnesses on the extent that inferences about the qualification of all inspectors and work quality.could be drawn from the reinspection program but characterized these differences as " miniscule." ,
Tr. 10,069; Tr. fol. 10,040 (Forney); Tr. 10,063-64.
44 Tr. fol. 11,045 (Ericksen).
15 inspector was competent were appropriate; and that reasonable assurance had been provided that All of the Hatfield, Hunter, and PTL inspectors in question were competent, even though deficiencies had existed in the certification practices at Byron.45
~
The Licensing Board further found that the Sargent &
Lundy engineering evaluations of discrepancies identified during the reinspection program were performed in accordance with proper engineering standards and that the assumptions used in the evaluations were sufficiently conservative. In addition, the Board was satisfied that the identified discrepancies had been properly resolved by either repair or disposition as acceptable "as-is" based on engineering i evaluations. The Board considered the Sargent & Lundy determination that none of the discrepancies was design significant to be a " strong indication" that the inspectors ,
of concern (i.e. , those employed before revised certification practices were implemented) had not overlooked l any significant safety-related deficiencies.46 With respect to construction work quality, the Licensing Board stressed that this matter was never directly 45 LBP-84-41, supra, 20 NRC at (slip opinion at 77-78).
46 Id. at (slip opinion at 106).
. 1 l
16 in question during the hearings leading to'its initial decision. Rather, the Board's concerns with' quality
^
assurance at Byron centered on the failure to demonstrate that the inspectors were properly trained, tested, and
'c'rtified.47 e The Board further recognized that ALAB-770 emphasized the need to establish inspector competence.48 Nevertheless, the Board believed it important; to take advantage of the extensive data collected from the reinspection program to help assess the safety of the Byron facility.48 While noting that the reinspection data were a -
byproduct of an inspector competence program and that their ; --
-_ - value as a measure of work quality was limited, the Board
- - was impressed by the absence of any design-significant discrepancies in the large number of reinspections (covering a broad range of work).50 As a result of the evidence produced throughout the entire proceeding, the Licensing ,
Board found that the applicant had demonstrated that the quality of the Hatfield and Hunter work is adequate.
47 Id. at _ (slip opinion at 121).
48 Id. at _ (slip opinion at 122).
49 Id. at _ (slip opinion at 123).
50 Ibid. '-
51 (slip opinion at 124). It should be Id. at stressedthat, although our remand required the Licensing (Footnote Continued)
17 Based on its detailed findings, the Board concluded that the applicant had prevailed on the qualit assurance
' issue. The Board, therefore, set aside its prior denial of the operating license application. Interpreting our romand order to have returned to it full jurisdiction on the quality assurance issue in all substantive respects, the Board authorized the Director of Nuclear Reactor Regulation, upon making the findings on all applicable matters specified in 10 CFR 5 50.57 (a) , to issue full power licenses to Byron Nuclear Power Station, Units 1 and'2, subject to the provisions of 10 CFR S 2.764 (f) .52 D. Intervenors' Claims on Appeal Except in one limited respect, the intervenors do not attack the Licensing Board's conclusion that the reinspection program was adequate to establish the competence of the quality assurance inspectors. Rather, the ,
- main thrust of their challenge to the result reached in the supplemental initial decision is that the reinspection program failed to demonstrate affirmatively that the l (Footnote Continued) l Board to focus upon whether the reinspection program established the competence of the quality assurance L
inspectors, (see p. 9, supra), ALAB-770 went on to authorize the Board to examine any other question that it deemed l relevant to the ultimate issue of whether reasonable -
assurance existed that the Byron facility was properly
! constructed. 19 NRC at 1182 n.72.
LBP-84-41, supra, 20 NRC at (slip opinion at 159-60).
. 18 inspectors had not overlooked construction defects of safety significance. In the intervenors' view, the ALAB-770 remand .
': :: ' required a determination that the program satisfactorily _
served that purpose.
- In addition, the intervenors complain of the Licensing .
~
Board's refusal to admit into evidence a part or the -
entirety of the proffered written testimony of four of their witnesses. Still further, the intervenors insist that the Licensing Board went beyond the scope of the remand in
~
considering and making findings on matters of plant design
- -- and design margin. Finally, intervenors assert flaws in .
- - Sargent & Lundy's evaluation of the safety significance of ,
- the discrepancies found during the course of.the.
reinspection.
E. Analysis . ..
- 1. As just noted, the primary argument advanced by the
\
intervenors in support of their attack on the supplemental
- initial decision rests upon a specific articulated premise
' ~ ~
- ~ with regard to the ALAB-770 mandate. If we understand it
~
correctly, intervenors' thesis is that our remand required the Licensing Board to determine whether the reinspection program brought about a second look at a sufficiently large percentage of the construction work of assertedly high safety significance to allow an informed judgment that it was unlikely that any of that work was in fact defective.
In intervenors' view, the reinspection program did not
19
- satisfy this objective, with the purported consequence that the applicant failed to sustain its burden oh' demonstrating the existence of reasonable assurance that significant
-construction defects had not eluded discovery at the first inspection.53
- a. The complete answer to this line of argument is that the intervenors have misread ALAB-770. Our instructions to the Licensing Board were explicit: it was to focus its inquiry upon "whether as formulated and executed, the reinspection program has now provided the requisite degree of confidence that Hatfield and Hunter quality assurance inspectors were competent."54 yg ,o, ,,
stated, those inspectors could "be presumed to have uncovered any construction defects of possible safety consequence."55 The intervenors did not ask us to reconsider this i -
instruction when we issued ALAB-770; nor do they now attempt to argue that it was unjustified. And our own independent reassessment of the matter has given us no cause to alter our thinking on it. To the contrary, we remain fully
. 53 Intervenors' Supplemental Brief on Appeal (Nov. 6, 1984) (hereafter, Intervenors' Supplemental Brief) at 6011.
54 ALAB-770, supra, 19 NRC at 1169 (emphasis supplied) .
55 Ibid. (emphasis supplied) .
.__7 20 persuaded that, in the context of this case, it was 1
perfectly appropriate to confine the required inquiry to a l 4
--- determination as to the competence of the Hatfield and -
Hunter inspectors. !
't- As earlier observed, the genesis of the reinspection
- L program was not the discovery -- either in the course of the staff's CAT inspection or on some other occasion -- of -
actual safety-significant construction defects that ,
apparently had escaped the notice of the quality assurance f' ' inspectors. Instead, to repeat, what brought about the - -
r
. reinspection program were ascertained quality. assurance t deficiencies of a quite different stripe -- inspector certification.
An integral part of all acceptable construction quality assurance programs understandably is confidence that the 4 individuals carrying out the inspections have the , ,
l 1- -
qualifications to fulfill their responsibilities properly:
j if there is any doubt in that regard, there necessarily must
~~ ~
also be equal doubt respecting whether the inspectors in .
i fact uncovered all significant construction defects. For l -
this reason, it is of crucial importance in the assessment of the adequacy of a quality assurance program that there be satisfactory proof of the inspectors' qualifications. >
Normally, that proof will take the form of quality assurance ;
i documentation establishing that the individual in question r
has the training and experience appropriate to his or her
- i i
21 assigned function and has passed any requisite. qualifying examinations. ' .-
The rub here was that such proof was lacking; i.e. , it could not be ascertained from the available documentation that the inspectors in question were fully qualified. .
Accordingly, even though there was no objective indication that those inspectors were unqualified and consequently might have overlooked safety-significant defects, that.
possibility could not be excluded.
It was this consideration that led to the establishment of the reinspection program. Similarly, the uncertainty as to the inspectors' competence stemming from inadequate documentation of their qualifications -- rather than the discovery of any actual overlooked safety-significant construction defects -- was at the foundation of the Licensing Board's rejection last January of the operating ,
license application on quality assurance grounds.56 It follows from the foregoing that the instruction to the Licensing Board to focus upon whether the reinspection program established inspector competence is fully consistent with the intervenors' own stated concept of "the central '
issue on remand." That issue, the intervenors insist, is '
~
56 See pp. 7-8,' supra.
t
~.
4)
o ,- ,
22 whether "the new evidence (i.e., the results of the reinspection program) sufficiently cured or byercame the
~
quality assurance failures identified ~1n the initial decision such that there is now reasonable assurance that
- "r-' inspectors did not overlook construction defects of
'~: -.
'possible safety significance.'"57 Once again, the .
identified " quality assurance failures" upon which the denial of the operating license rested related essentially to the demonstration of the inspectors' qualifications.
- r- ru " - And, in light of the fact that the CAT inspection did ~ not :
~~ '
- --- disclose a previously undetected safety-significant defect,.
~ ~
there no longer would be any reason to question the
~
existence of reasonable assurance that the Byron facility had been properly built if those " quality assurance failures" were overcome (i.e. , the inspectors ' . competence was established through the reinspection program). Indeed, ,
it is highly improbable that, had there not been the discovered lack of proper documentation of the inspectors' qualifications, an issue would ever have arisen regarding whether the inspectors might have overlooked significant construction defects.
57 Intervenors' Supplemental Brief at 6.
F
23
- b. The principal question before us is thus whether the Licensing Board correctly found that "as formulated and executed, the reinspection program has now provided the requisite degree of confidence that the Hatfield and Hunter 9 .
quality assurance inspectors were competent."58 No ultimate'^
conclusion on this score can be reached prior to _.y consideration later in this opinion of the intervenors' eq bomplaint regarding certain Licensing Board rulings excluding evidence. It can be said at this point, however, N
that the evidence that was received by the Board;gives us no cause to disagree with the result below. ;
Inasmuch as the structure and fruits of the reinspection program are fully and accurately described in ;
the supplemental initial decision, we need not detail that ,
evidence here. Rather, we can confine our discussion to the one aspect of the program that the intervenors n'ow appear to i claim affects its worth as a determinant of inspector competence: the selection of an initial sampling period of ninety days.59 According to the testimony of'their witness 58 See p. 9, supra.
59 See p. 6, supra. Although in ALAB-770 (19 NRC at -
1170) we raised a question respecting whether the integrity of the reinspection program was affected by the fact that it was carried out by Hatfield and Hunter personnel, the intervenors do not challenge the Licensing Board's answer in the negative. See LBP-84-41, supra, 20 NRC at (slip' opinion at 53-60). .
t i
t
24 l d
Dr. Dev S. Kochhar, the overall level of performance of an inspector would not be reflected by a review'of his or her
~
Ji ~. : work over such a short period. This is assertedly because, with the passage of time, a newly trained inspector will
- : t ~ ~- become increasingly bored'and, thus, less attentive to the .
- rr- : proper execution of what Dr. Kochhar characterized as a
- --- ? " repetitive, dull and unstimulating . . . inspection
- task. 60 i 4
In the supplemental initial decision, the Licensing ;
i Board rejected this " fall-off theory" on the ground, among f
~
- others, that it .
is irrelevant to the issue pervading our initial decision and the proceeding on remand, i.e.,
j- -- - whether the reinspection program reliably
- . demonstrated that the inspectors were properly
- trained and tested and qualified at the beginning 1 of their inspection work. The period of interest
! . for that issue is obviously the fi ;
i of their employment as inspectors.gyt few months t l
We agree with that conclusion. In addition, although noi 4
! necessary to reach the point, we share the Board's further
+
a' j ,
1 i , view that Dr. Kochhar did not lay an adequate foundation for 4
,; his theory. As the Board observed, the witness's short-term s
i i
i 60 Tr. fol. 10,538 at 8 (Kochhar). Similar testimony was submitted by another intervenors' witness, Dr. William
- H. Bleuel. That testimony was, however, excluded by the Licensing Board. See pp. 27-29, infra.
61 LBP-84-41, supra, 20 NRC at (slip opinion at 42-43).
i L
4
[
25 studies were insufficient to permit an informed judgment -
respecting whether the ninety-day period would' provide a reliable measure of inspector performance.62
- 2. We now move on to the intervenors' complaint about the' Licensing Board's exclusion, in whole or in part, of the
_ testimony of four of their witnesses: Dr. William H.
aleuel, Dr. Eugene P. Erickson, Sargent Podworny, and Charles C. Stokes. The assigned basis (or bases) for the exclusion varied from individual to individual. We find it necessary to consider in each instance two questions.
First, was the excluded testimony relevant to the disposition of any crucial issue? Second, if so, was it nonetheless cumulative and, accordingly, its exclusion not prejudicial?
In order to pass the test of relevance, the testimony would have had to bear upon one of the two principal issues that the ALAB-770 remand required the Licensing Board to explore. As just emphasized, one of those issuew focused upon the reinspection program and called upon the Board to decide whether that program established the competence of the Hatfield and Hunter quality assurance inspectors. The 62 Id. at (slip opinion at 44-46) .
F_
26 '
other issue involved the disposition of any discrepancies brought to light by the reinspection program'.63
^ '
On the latter score, as earlier noted, the essence of the reinspection program was the reexamination by
^~
indisputably qualified inspectors of the work that had been
~
- - - 'previously accepted by the inspectors whose qualifications
- were in doubt because of lack of proper documentation.
Needless to say, in most instances at least, there was not absolute agreement between the original inspector and the reinspector. Tota'. agreement was, of course, not a -
~
condition precedent to a conclusion that the original
- inspector was competent (90 or 95% agreement was sufficient depending upon whether subjective or objective criteria were employed). But where the reinspector did find a deviation from established standards that had not been recorded by the original inspector, the question naturally arose: was that s deviation significant and, if so, had it been rectified? In ALAB-770, we directed the Licensing Board to address this question: "Have all identified discrepant conditions, such -
as poor welding, been properly resolved?"64 And, in its 63 As discussed at pp. 60-61, infra, ALAB-770 also
' called upon the Licensing Board to explore an issue relating to the quality assurance program of the Systems Control' Corporation. None of the excluded testimony was, however, directed to that issue.
64 19 NRC at 1179.
~
27
. supplemental initial decision, the Licensing Board answered the question in-the affirmative based upon Sargent & Lundy's analysis that demonstrated that none of the identified discrepancies had design significance.
With these considerations in mind, we examine in turn each witness's excluded testimony. .
- a. Dr. Bleuel is a partner in the consulting firm of Earkov & Gordon. He was described by the intervenors as a reliability and design assurance engineer with twenty-five years experience in design and quality assurance.65 on July 24, 1984 (after the start of the hearing on remand), the Board was first notified that he might serve as a witness and his proposed testimony was thereafter filed on August 13, 1984.66 That testimony offered three reasons why, in Dr.
Bleuel's opinion, the reinspection program did not provide s adequate assurance that Byron will be operated safely. The first reason was that a failure modes and effects analysis had not been employed in the formulation of the program.67 1
65 Intervenors' supplemental Brief at 11-12.
66 Id. at 15.
!- 07 The intervenors submitted Dr. Bleuel's description .
- of such an analysis: " Failure modes and affects analysis is
- a tool of reliability engineering. Essentially it entails i three steps: first, identifying each of the possible ways l (Footnote Continued)
28
.Second, Dr. Bleuel asserted, the engineering evaluation that was performed by Sargent & Lundy should have'been performed with either pre-established criteria or by an independent group. Finally, Dr. Bleuel stated that his professional
' :f: -
experience contradicted the assumption underlying the -
<')* - -- program that inspectors would perform least well during the initial three months.68 We need not decide here whether the Licensing Board correctly rejected this testimony as untimely.69 Be that as r- it may, its rejection was not reversible error.- -
- 4- - To begin with, intervenors' counsel explicitly _ conceded at oral argument that the failure modes and effects analysis
- called for by Dr. Bleuel did not address the question of inspector competence.70 Further, there is no apparent
. connection between the analysis and the Sargent & Lundy evaluation of ascertained deviations. Accordingly, that s portion of the Bleuel testimony simply lacked relevance.71
~ ~
(Footnote Continued)
- -(modes) in which a system could fails second, analyzing the
- effects of each such failure moder and third, categorizing the failure modes according to their effects." Id. at 12A.
68 Id. at 12.
69 See Tr. 10,743-44.
70 App. Tr. 27, 33 (" App. Tr. " refers to the transcript of the November 29, 1984 oral argument on the intervenors' challenge to the supplemental initial decision).
71 See p. 25, supra.
f
. 29 f
Dr. Bleuel's second point -- addressed to the Sargent &
Lundy evaluation -- covered essentially the dame territory as a portion of the admitted testimony.of intervenors' witness charles Stokes.72 In the circumstances, we see no prejudice to intervenors stemming from the fact that Dr.
Bleuel was not permitted to rehearse that testimony. The
, same lack of possible prejudice attaches to the exclusion of I
so much of Dr. Bleuel's proposed testimony as mirrored Dr. -
Rochhar's assertion respecting the decline in inspector performance over a period of time. Apart from the consideration that the reinspection program was properly j designed to determine inspector competence (i.e . , -
i capability) and not performance, Dr. Bleuel's foundation for l offering his opinion on the subject was no firmer than that of Dr. Kochhar.
- b. Dr. Erickson is a senior sampling statistician for g Mathematica Policy Research, Incorporated and a member of i the Temple University faculty. He holds degrees in sociology, mathematical statistics, and mathematics. Those portions of his testimony that were excluded did no more than criticize one aspect of the structure of the 72 See pp. 35-36, infra.
73 See pp. 24-25, supra.
o' . a 30 reinspection program -- (i.e., they did not relate to the Sargent & Lundy evaluation to any extent). s.-
At oral argument, intervenors' counsel expressly conceded that the criticism had no bearing upon the efficacy .
of the program as a vehicle for determining inspector
' competence.74 Thus, whether or not the Licensing Board was right that Dr. Erickson was unqualified to appraise the program,75 his criticism was wholly irrelevant.
- c. The same lack of relevance attends upon the
- ~ excluded proposed testimony of Mr. Podworny, an Authorized .
- ' ' ' Nuclear Inspector in the employ of the Hartford Steam Boiler Inspection and Insurance Company. That testimony related primarily to practices utilized by Hartford in determining -
compliance with the ASME Code. At oral argument, intervenors' counsel expressly conceded that it would not "shed light" on the inspector competency issue.76 And, s
manifestly, it had nothing to do with the Sargent & Lundy evaluation.
- d. Mr. Stokes is a nuclear engineering consultant with a newly formed firm, P/S Associates. He holds a degree in civil engineering and has worked professionally as a 74 App. Tr. 29. .
75 Tr. 11,026.
76 App. Tr. 40.'
P 9
31 civil and mechanical engineer for approximately ten years, principally in the design area.77 ' '
Mr. Stokes's testimony was submitted in question and -
answer form.78 Although certain other answers were
--- similarly treated, the intervenors' complaint to us is
- - - directed solely to the exclusion of the answers-to questions i 19 and 29-33.78 .
Question 19 probed Mr. Stokes's concerns about a broad range of Sargent & Lundy's design criteria applicable to such Byron components as safety-related pipe hangers.80 In
- response to the question, Mr. Stokes criticized some of j those criteria on the ground that they either failed to take into account certain stresses or made incorrect assumptions regarding the weight distribution of the component parts.81 As intervenors conceded at oral argument,82 this criticism had nothing to do with the determination as to ,
77 Tr. fol. 10,770 at 1-3 (Stokes).
78 See generally Tr. fol. 10,770 (Stokes).
79 Inturvenors' Supplemental Brief at 26-28.
80 Tr. fol. 10,770 at 13 (Stokes). As far as we can tell, these criteria were early developed by Sargent & Lundy in its role as the architect-engineer for the Byron project, and not in the course of its engineering evaluation following the reinspection program. -
81 Ibid.
82 App. Tr. 38."
l l
J
32 inspector competence. Nor is there anything to indicate that Mr. Stokes's concerns on this score beau ,specifically
~-~ upon Sargent & Lundy's disposition of the discrepancies
- revealed by the reinspection program. Indeed, while their
~
c brief advances the naked assertion of such a. link, the
~ '- intervenors have shed no light upon what they deem the connection to be. Moreover, it is worthy of note that, in .
their proposed supplemental initial decision below, the
~
intervenors accepted the applicant's proposed finding that
' ~ ~
"in response to the issue added by the Board concerning .
(alpplicant's repair of defects, the Board finds that all discrepancies were either repaired or dispositioned as acceptable 'as-is' based on engineering evaluation results,.
thereby resolving this issue."83 In these circumstances, the answer to question 19 was not relevant to any issue on remand. The same may be said ^
with regard to the excluded answers to questions 29-33.84 In a word, those questions related to the reinspection of welding performed by Blount Brothers Corporation, the general contractor responsible for concrete work, 83 Inte rvenors ' Proposed Supplemental Initial Decision (Sept. 18, 1984) at 85.
84 See Tr. fol.'10,770'at 20-22 (Stokes).
33 post-tensioning, and containment structural steel.85 g, ALAB-770 makes clear, however, our remand to6the Licensing
.. .-- -Board did not extend to Blount because its quality. assurance program had been found adequate.86
- - 3. In its supplemental initial decision, the
. .- . Licensing Board did not confine itself to determining .
whether the results of the' reinspection program demonstrated inspector competence. As earlier noted, it also concluded
- that those results (together with certain other evidence) affirmatively established the quality of the work performed
-. by Natfield and Hunter.8 In reaching that conclusion, the Board made and relied upon, inter alia, findings regarding the safety margins included in the genecal design of the Byron facility.88 According to the intervenors, that design was not in issue on the remand and thus was improperly invoked by the Licensing Board.8' ,
85 See Af fidavit of Kenneth T. Kostal (Aug. 18, 1984),
appended as Attachment A to Motion to Exclude Testimony of Mr. Charles C. Stokes (Aug. 19, 1984 ) . See also LBP-84-2, supra, 19 NRC at 149.
86 19 NRC at 1170 n.23.
87 See pp. 15-16, supra.
88 LBP-84-41, supra, 20 NRC at ~ (slip opinion a 100-06, 123-24).
8' Intervenors' ' Supplemental Brief at 23-26.
l l : '
34 It is quite true that the general design was not open t
l.- to. challenge on the romand. To the contraryf.any questions l
l ~ with regard to it had to be litigated in the hearings - r l preceding the initial decision last January.90 But it f
~ ~ *
- scarcely follows that the plant design and its associated !
i i
- ~-
safety margins, to the extent not successfully. attacked in -
l the prior hearings, could not be relied upon by the )
l '
Licensing Board on the romand. Se that as it may, the ,
underpinnings of the Board's findings regarding the -
affirmative evidence as to construction work quality are not l of present importance. Once again, we determined in l ALAB-770 that all the Board need determine in that regard was that the quality assurance inspectors were competent -- j if competent, the quality of the work could be presumed.
It should only be added in thir connection that the intervenors were permitted to adduce evidence on the subject ,
l of design criteria and safety margins to the extent relevant j i to'the other principal issue on remand: the sargent & Lundy j i
disposition of the deficiencies disclosed by.the i reinspection.81 This being so, they have no basis for
- ?
i t
90 As will shortly be seen, at least questions relating i
to the seismic design were in fact so litigated. See pp.
41-59, infra. .
II LBP-04-41, supra, 20 NRC at (slip opinion at 101 L l n.10). See Tr. 10,66,ss Tr. fol. 10,776 at 16-20 (Stokes).
l l
1 l j l I l !
c_
35 complaint as to the scope of the Licensing Board's inquiry into design matters.92 , ,
- 4. In determining whether a particular deficiency identified during the reinspection had design significance,
- Sargent & Lundy sometimes employed what it characterized
- as " engineering judgment."93 The intervenors complain that that organization failed to " define" in advance the criteria to be used in making such judgments.94 They insist that, given that failure, the evaluation should not have been performed by Sargent & Lundy but, instead, by an organiza-tion not previously associated with the project.95 This thesis was advanced in both the accepted testimony 92 In its supplemental brief (at 26), the intervonora note in passing their disagreement with the Licensing Board's denial, in an unpublished November 2, 1984 order, of their September 12, 1984 motion to reopen the record on ,
design issues. In a September 19, 1984 unpublished order, we expressed doubt that the motion came within the scope of the ALAB-770 remand inasmuch as " design quality assurance issues (are] separate and distinct from construction quality assurance issues." For this reason, we felt constrained to authorize explicitly the Licensing Board to entertain the motion. In these particular circumstances, if dissatisfied with the denial of the motion, the intervenors should have noted an appeal from it. They did not and, therefore, all that is now properly before un is the Licensing Board'c disposition of the remanded construction quality assurance issues.
93 Tr. fol. 9044 at 6 (French); Tr. fol. 9051 at 7 (Branch); App. Exh. R-4 at VI-1, VI-2. -
94 Intervenors' Supplemental Brief at 29A.
95 Id. at 29.
36
- of Mr. Stokes and the excluded testimony of Dr. Bleuel.II F We agree with the Licensing Board's rejdction of the intervenors' position. Our examination of the record has
- ~
disclosed no evidence to suggest either that Sargent &
- 1 Lundy's engineering judgments were flawed or that the !
- - -!-- organization allowed its evaluations to be influenced by its -
prior association with Byron.87 In this connection, ,
although Mr. Stokes performed a detailed review of "many" of the evaluations, on cross-examination he was able to t- " describe only one purported example of a relevant lack of
- -
- ' objectivity by Sargent & Lundy: an alleged inconsistency between its structural engineering and mechanical
- engineering groups in the treatment accorded fatigue loading.II But, as the Licensing Board observed, no such '
inconsistency existed.II This was because the two groups were looking at different components and each adhered to the ,
portions of the ASME and American Institute of Steel l Construction (AISC) Codes applicable to those components 96 Tr. fol. 10,770 at 4-6 (Stokes); p. 20, supra.
'7 We have earlier discussed the evaluation methodology. See pp. 11-12, supra. ,
- '8 Tr. fol. 10,770 at 4, 18-19 (Stokes); Tr. 10,893-94. ,
'I LBP-84-41, supra, 20 NRC at (slip opinion at 105-06).
37 under its examination.100 Consequently, it is not surprising that, notwithstanding their appellate claims, the intervenors acknowledged below that the record did not support the need for an independent evaluation effort because of Sargent & Lundy's association with the applicant.101 ,
II.
OTHER ISSUES .N CONTROVERSY ON APPEAL
- As previously noted, in its response to the applicant's appeal from the January 1984 Licensing Board decision the intervenors challenged the Board's resolution of several non-quality assurance issues. In a June 13, 1984 memorandum and order (unpublished), we rejected one of those challenges
-- directed to the Licensing Board's refusal to allow the intervenors to litigate their contention that the applicant i
was not financially qualified to operate the facility. (The te';t of that memorandum and order is contained in the Appendix to this decision, infrs, pp. 67-70.) We now consider the intervenors' remaining claims, which we conclude to be without merit.
100 Tr. fol. 11,158 at 8-9 (Erler). '
101 Intervenors' Proposed Supplemental Initial Decision, at 85. -
! e l' -
38 I
! I l .
!. ... _ ._. A. Need For Power and Mternativa Energy Sources !
l
- i.-
- - - Etfactive April 26, 1982, the commissiodcanended ita !
\ ,
regulations to prohibit the litigation of need for power and f
.. alternative energy source issues in operating' license U -' proceedings.102 The prohibition currently is found in 10 -
l CFR 51.53 (c) .103 , >
.'t In unpublished memoranda'and orders issued on August 5 l and 26, 1982, the Licensing Board denied the intervenors' l~~; petitions seeking a waiver of or an exception to the l
prohibition. The Board pointed out that, under the terms of j i
10 CFR 2.758(b), relief may be granted only upon a ,
l demonstration "that special circumstances with respect to l t
'!*;-. the subject matter of the particular proceeding are such i l
l that application of the rule or regulation (or provision !
l l thereof) would not serve the purposes for which the rule or !
regulation was adopted." In the Board's view, the g f
t i
j ...- intervenors had failed to make a prima facie showing in this i
t regard. l l
j Sofore us, the interveners not merely challenge this !
l :
i
- wonclusion but, more fundamentally, maintain that 10 CFR ,
l 51.53 (c) contravenes the National Environmental Policy Act of 1969, 42 U.S.C. 4321, and therefore is unlawful. The l i 102 47 Fed. Reg. 12,940 (1982),
f 103 See also 10 CFR 51.23 (e) . !
t i
l
39 latter claim is, of course, addressed to the wrong forums within this agency, only the commission itself'has the authority to invalidate one of its own rules or
- regulations.104 And we find nothing in the intervenors' assertions that might possibly establish the existence of
- . the "special circumstances" required for a waiver of or ,
exception to the section 51.53 (c) mandate.
Undergirding the 1982 amendment was the commission's '
belief that, as a general matter, no useful purpose is
- served by considering need for power and alternative energy sources issues at the operating license stage. As the Commission put it in the t.tatement of consideration accompanying the amendment (W)hile there is no diminution of the importance of these issues at the construction permit stage, the situation is such that at the time of the operating license proceeding the plant would be needed to either meet increased energy needs or g replace older less economical generating capacity and that no viable alternativen to the completed nuclear plant are likely to exist which would tip theNEPAcost-benefitggjanceagainstissuanceof the operating license.
104 See 10 CFR 2.758 (a); Kansas Gas and Electric Co.
(Wolf Creek Generating Station, Unit 1), ALAB-784, 20 NRC (Sept. 13, 1984) (slip opinion at 2); Potomac
- ITec,tric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2) , ALAB-218, 8 AEC 79, 89 (1974).
105 47 Fed. Reg. 12,940. ;
4 L
l 40 l
Neither the intervenors' filings below nor their brief to us j' - presents nearly enough specific facts (as oPIos'ad l to broad, haparticularised averments) to persuade us that the present and projected energy situation in Commonwealth Edison's J ' service area is sufficiently special that that rationale .is ,
inapplicable here. _. ,
- '" stated otherwise, the laying by intervenors of a proper foundation for their waiver or exemption request
- ?'~- -
~
necessitated a substantial concrete demonstration that, ,.
notwithstanding the enormous economic investment in Byron, -
- i ;the NEPA cost-benefit balance might now tip in the direction .,
~
- - of abandoning this essentially completed facility. For, assuredly, that proposition is far from self-evident. There may well be room for legitimate doubt regarding whether
- warrant exists to undertake the erection of a particular nuclear facil. tty -- i.e., whether the need for the ,
electricity that the facility would generate is sufficient to justify assuming the environmental and other costs
~
- associated with its construction and operation. Thus, as I
t
^
~ the Commission pointed out, need for power and alternative energy sources issues remain of importance at the construction permit stage. But it is difficult to perceive
( many sets of circumstances that might lead one to a reasoned ,
conclusion that the environmental costs of operating an already built facility would exceed the benefit to be I
41 derived from utilization of the electric power that the facility is capable of producing.106 Accordingly, it does not seem unfair to expect a threshold particularization on the part of a party claiming the presence of such circum-
-- - stances and, therefore, an entitlement to litigate whether
-- -- NEPA requires that the facility be mothballed or dismantled.
Once again, such particularization was absent here.
B. Seismic Design
-All nuclear power plants must be designed and built te
- - protect the public from the hazards of radioactive release should the plant be subjected to movements in the earth's crust.107 Under the Commission's regulatory scheme, this protection is achieved in part through the requirement that the plant be designed to withstand the maximum vibratory ground motion (in terms of acceleration) that might result i
106 Needless to say, that the need for a facility's generating capacity (either to meet increased demand or to provide replacement electric power) might not be sufficient to justify building the plant does not perforce mean that, if the plant has a;. ready been constructed, it should be abandoned. Nor does a present judgment that the construction of, e.g., a coal-fired Cecility might have been preferable to the construction of the nuclear facility have much significance in determining whether, having been built, the nuclear plant should be allowed to operate.
107 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 a 2), ALAB-644, 13 NRC 903, 909 (1981),
quoting Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-519, 9 NRC 42, 45 (1979).
42 upon the occurrence of one of two different possible seismic
~
events: the Safe Shutdown Earthquake (SSE)198 and the 09 Operating Basis Earthquake (OBE). The SSO is the most powerful earthquake ever expected to occur at the plant
~ ~
site.110 The plant must be able to withstand the forces of the SSE without releasing dangerous quantities of radioactivity.111 The OBE is the strongest earthquake considered likely to occur during a plint's operating lifetime.112 The facility must be designed and built to function through the OBE without creating undue risk to the public. health and safety. The vibratory ground acceleration assigned to the OBE must be at least one-half 114 unless a lesser value is that assigned to the SSE justified.115
- s 108 10 CFR 100, Appendix A, 5 III(c) .
109 Id. at S III(d) .
110 Diablo Canyon, ALAB-644, supra, 13 NRC at 911.
111 Ihid.
112 Ibid.
. 113 Ibid.
114 10 CFR 100, Appendix A, S V(a) (2) .
115 Id. at S II: Diablo Canyon, ALAB-644, supra, 13 NRC at 989-927
0 43 Before selecting the SSE and OBE that are to serve as the design bases for its proposed facility, A dtility is required to investigate in sufficient scope and detail, inter alia, the structural geologic conditions of the site
- - - and surrounding region, including its geologic history.116 I17 If there is a fault within 200 miles of the site that might be of significance in establishing the SSE,1 0 the applicant must further determine whether that fault is
" capable."119 If so, it must then be evaluated for its
- potential for causing vibratory ground motion and surfsce 116 10 CFR 100, Appendix A, S IV.
117 A fault is a large-scale dislocation or distortion within the earth's crust along which differential slippage of the adjacent earth materials has occurred parallel to the fracture plane. Id. at S III(e) .
118 Id. at S IV.
119 A capable fault is defined in 10 CFR Part 100, Appendix A, 5 III(g) as a fault which has exhibited one or more of the following characteristics:
- 1. Movement at or near the ground surface at least once within the past 35,000 years or movement of a recurring nature within the past 500,000 years.
- 2. Macro-seismicity instrumentally determined with records of sufficient precision to demonstrate a direct relationship with the fault.
- 3. A structural relationship to a capable fault according to charactorintics (1) or (2) of this paragraph such that movement on one could be i reasonably expected to be accompanicd by movement on the other.
I t
44 displacement, and taken into account in establishing the 0 In this connection, if the investigation both SSE.
demonstrates that a particular fault is structurally associated with geologically old structural features (such
- i. - i as many of those found in the eastern region of the United
- ~ :- States) and uncovers no affirmative evidence of capability, that fault shall be presume'd to be not capable.121
- 1. The Byron site is located in the Central Stable Region tectonic province -- an area that extends from the Rocky Mountains east into New York State and south to Oklahoma. It is a region characterized, in general, by a relatively low level of seismicity.122 Approximately six miles southwest of the Byron site lies the Sandwich Fault Zone, encompassing a noncapable fault. The existence of the Zone was known at the time the construction permit for the plant was issued. It was tnen s thought to be the nearest major fault zone to Byron.123
.... .~. - .
120 Id. at 55 Iv(a) (7) and (8), Iv (b) .
121 Id. at S III(g) . For purposes of this regulation, "old" means at least " pre-Quaternary". Ibid. The Quaternary period starts with the Pleistocene (glacial) , age, roughly one million years ago.
122 LBP-84-2, supra, 19 NRC at 241.
123 LBP-74-87, 8 AEC 1006, 1036 (1974).
45 There are minor but no capable faults underlying the site itself.124 a..
Naximum accelerations of 0.2g for the SSE and 0.09g for i
l the OBE were adopted as part of the design bases for the plant.125 These values were determined to be sufficiently high based on an examination of the intensities and recurrence rates for earthquakes in the central Stable Region.126 Subsequent to the issuance of the construction permit, a study undertaken by the Illinois State Geological Survey l' (ISGS) identified the existence of the Plum River Fault Zone just 5.3 miles northwest of Byron, which was a:trlier thought to be another type of geologic structure. Principally on the basis of the information developed by the ISGS study, I the applicant and the NRC staff determined that the Plum River Fault Zone was not capable.127 ,
124 LBP-75-64, 2 NRC 712, 716-17 (1975) .
125 Tr. fol. 479 at 3 (Singh); Tr. fol. 760 at 3-4 (Rothman); Staff Exh. 1 (SER) at 2-24. Earthquake acceleration is measured in units of gravity, or "g." One 9, the acceleration of a free falling body due to gravity, l 1s equal to an acceleration of 32.17 ft/sec/sec. 126 Staff Exh. 1 at 2-26 to 2-28; L8P-75-64, supra, 2 NRC at 718.
127 lap-84-2, supra, 19 NRC at 242-44.
46 ,
- 2. At the hearing below, the intervenors contested the
- - seismic dasign of the plant.128 In particular,' they disputed the acceptability of the ground acceleration values selected for the plant's SSE and OBE, claiming that there
- - - - was not sufficient information pertaining to either the causes of earthquakes in northern Illinois or the Plum River Fault Zone to arrive at those values. The Licensing Board rejected this claim and found the plant's seismic design to be in compliance with Commission regulations.129
~
Before us, the intervenors renew their challenge to the
- adequacy of the plant's seismic design. They. maintain that the Licensing Board erred in finding that the Plum River
- - Fault Zone was not capable and in endorsing the 0.09g value for the CBE. On the latter score, the intervenors contend that the applicant did not show good cause for deviating from the requirement that the value assigned to the ODE be g at least one-half of the value given the SSE. According to the intervenors, the OBE value should be at least 0.1g and not the 0.09g employed for seismic design purposes.130 128 In actuality, it was only the League of Women Voters that pressed the matter before the Licensing Board.
But because the other intervenors have joined the seismic arguments presented by the League to us, for convenience wo are using the term "intervenors" throughout this discussion.
129 Id. at 247-50.
130 Brief of Intervonors (March 12, 1984) at 55-57.
p .
47 At the hearing, the only dispute concerning whether the Plum River Fault Sone is capable related to the first criterion for determining a capable faults whether there .
. had been movement at or near the ground surface at least once during the last 35,000 years or movement of a recurring
. nature within the past 500,000 years.131 In this regard,
- l. both the applicant and the staff presented considerable evidence supporting the apsence of such movement. The intervenors insisted, however, that that evidence wa.
inadequate to reach any conclusion respecting the fault's capability.
The intervenors continue to press that position before
! us. They maintain tnat the Licensing Board's finding that the Plum River Fault Sone was not capable rested upon infor-nation acquired by " inaccurate" and " indirect" methods (i.e., by core drilling and seismic refraction) "while an ,
accurate and direct method (excavation and direct obser-vation of the fault itself) is available. 132 But the intervenors neither explain why the core drilling and
. seismic refraction methods produced unsatisfactory results nor refer us to any evidence in the record that might 131 See note 119, supra. The other two criteria for determining a capable fault were never seriously raised by the intervenors as issues in the proceeding.
132 Brief of Intervenors at 56.
L
48 support such an assertion. This being so, the intervenors
-- could not have complained had we elected to dreat as
-*:~ ' abandoned their challenge to the Licensing Board's Plum River Fault Bone findings.133
- :' - -- ' We have chosen, however, not to take that route but,
~
- ; J rather, to consider the intervenors' claim. . Chur . review of .-
l the record persuades us that it is without merit.
l
- - one means of determining the age of a fault is the
~
' relative age dating method.134 Basically, it consists of I' -
examining the material that overlies the fault and -
l ascertaining when this material was deposited. The fault is .
then dated by tracing it upward through each stratum (or
-- - layer) of material to the point where the fault stops. An -
l 133 See Consumers Power Co. (Midland Plant, Units 1 and
- 2), ALAB-270, 1 NRC 473, 475 (1975). True, the intervenors i 1
in that case failed to file any brief in support of their l appeal. While the intervenors here did file one, l_ .
nonetheless the observation we made in Midland applies to l them as wells a failure to brief issues adequately
" deprives us precisely of that assistance which.the Rules of Practice are designed to have an appellant provide, i.e., to flesh out the bare bones exceptions 'with the precise l '- portion of the record relied on in support of the assertion of error,' 10 C.F.R. 5 2.762 (a) , and to present us 'with sufficient information or argument to allow an intelligent disposition of (the) issue (s;.'"
l 134 10 CFR 100, Appendix A, 5 Iv(a) (7) n.3r Tr. fol.
432 at 4 -(Yonk) . The other basic method (known as absolute age dating) employs radiometric studies of naturally
- occurring radioisotopes and their daughter products. Unlike the relative age dating method, it was not used in the ISGS study because of the absence of proper mineralogy at the site. Tr. fol. 432 at 3-4 (Yonk).
b
-. . . .. - _ - - - _ = _ ,.
8 49 - -
I undisturbed stratum above the fault indicates that the fault is older than the overlying material.135 Although n'ot con-clusive, an absence of signs of disturbance of the overlying material also provides some indication of the lack of fault movement since the time of deposit of the overlying materials.136 on the other hand, evidence of displacement ,
could indicate movement of the underlying fault since that
~
time.137 The Plum River Fault Zone was extensively studied by ;
the ISGS,138 which is the repository for all geological information gathered in Illinois and is staffed by well-recognized experts on the geology of that state.139 Indeed, the intervenors' own expert on geology, Dr. Henry H.
Woodard, Chairman of the Geology Department, Beloit College, Wisconsin, credits the ISGS with being the " foremost state geology group in the United States."140 135 Id,. at 4. .
136 Tr. 567-68, 597-98, 762-64, 820-21.
137 Tr. 816-17.
138 The study is reported in Plum River Fault Zone of Northwestern Illinois, ISGS Circular 491 (hereaf ter ISGS
. circular). See also, Tr. fol. 753 at 3, 5 ( Alterman) ; Tr.
791; Staff Exh. I at 2-22 to 2-24: Tr. 802-03, 822, 824 138 Tr. 436.
140
- Tr. 582.
t
A" -
50 f.
7 In using the relative age dating method, the ISGS study
, - - ~ examined data acquired from field observations,'. existing
- ' ' well records, and cores obtained from the area.of the fault
- -r-
~ zone. In addition, the ISGS made use of a limited amount of
- it' ;2 refraction seismography data pertaining to the. area of the s- .
12: -
- fault zone, principally to locate anomalies.in the bedrock surface and determine the position of the zone.141 After
"-- ,--- that determination was made, two holes were drilled, one on each side of the fault zone, as interpreted from the t- +n:.r- -
refraction seismographic data. A core extending twenty feet .
- ~ ~ - ' ' ~~into the bedrock was taken from one hole; a twenty-five. foot
- .'-- core from the other. The underlying materials and bedrock
- obtained from the two drillings were analyzed and the relative position of layers of materials compared.142 No
- ' -- - displacement of the overlying materials, consisting of soils of the Illinoian and pre-Illinoian ages (200,000 to 500,000 i years ago) at the top of the bedrock, was observed.143 The
~~
141 ISGS Circular at 2, 16; Tr. fol. 753 at 5
2' (Alterman); Tr. 568-69, 791. Refraction seismography .
basically involves the use of seismographs at specific
- ~
locations to record sound waves set off in the ground by explosives. The sound waves pass through the soil and rock and their arrival times are recorded. Calculations can than be made of the depths and structure of the various underlying formations. Tr. 792-93. ,,
142 ISGS Circular at 15; Tr. 569-70.
143 Tr. 815, 822; ISGS Circular at 16; Tr. fol. 753 at 2-4 (Alterman) ; Staff Exh. 1 at 2-22 to 2-24.
51 .
fault zone itself was determined to have been formed some- ,
time in the interval between the Niagaran and, Pleistocene periods.144 The ISGS thought it likely that tha lault zone l 3
wasformedaroundthePennsylvanianperiog.145 The ISGS study was reviewed by, among others, Alan K.
Yonk, a geologist retained by the applicant,140 and Dr. Ina B. Alterman, an NRC staff geologist.147 Relying on his own observations and investigations and the results of the ISGS I
study, Mr. Yonk concluded that there had been no movement ef- t any fault near the Byron site for at least 200,000 years and no movement of a recurrent nature for 500,000 years. In his opinion, therefore, the Plum River Fault Zone was not capable within the meaning of the Commission's seismic regulations.148 Dr. Alterman reached the same conclusion.149 Apart from the information provided by the 144 ISGS Circular at 17; Tr. fol. 432 at 7 (Yonk).
Roughly, the interval between the Niagaran and Pleistocene times translates into a period from 400 million to about one million years ago. ,
145 ISGS Circular at 17. The Pennsylvanian period was-roughly 290 million years ago. Tr. fol. 752'at 7 (Alterman). . i 146 I Tr. fol. 432 at 5-6 (Yonk).
14 Tr. fol. 753 at 3, 5 (Alterman). ..
148 Tr. fol. 432 at 2, 6-8 (Yonk). l 149 Tr. fol. 753 at'3 (Alterman) .
, , - - - - , . - ..wp,..-,,,,.,,-ww,.p.-~,~-.-,,, y,.,. , .--,,- w-g w ,= &--co-,=r#
7
, . :;^
- 52
- s. .
-ISGS study,150 she was influenced by the fact that there is .
- no known seismicity associated with the faultizone, by the 10- ~ 172
~ absence of any scarp at the fault zone, and by.the tectonic .
- 4 1" history of the surrounding area indicating that any faulting
'e : -- -- . :in Illinois is no younger than sixty-five million years.151 ,
. n ' * : X 7 ; - f [ . The only witness presented by the intervenors on this. .
= f: ' . ' issue was Dr. Woodard. His position appeared to be that any .
l t ' conclusion that the Plum River Fault Zone was not capable .
- 7 L was premature because of the absence of information "one way
'r i'
~
i" cnr the other. "152 He conceded that he knew of no evidence
.i.7
' : ~ of fault movement within the past 35,000 years or movement -
of a recurring nature within the past 500,000 years.153 r
- ~- : - - - But , as he saw it, that was not determinative because
" critical information" had not been obtained. According to ,
i Dr. Woodward, the overlying material should have been ,
excavated "right-across the fault zone." This would have -
\
"~ ~
permitted " direct observation" respecting whether the s :- Ia n.-- :150 The NRC staff routinely relies on state groups such
'i'~ - - as the ISGS because they are generally recognized as experts on the geology of their own states. Tr. 835-36.
151 Tr. 818. Scarp, or escarpment, is a steep face frequently presented by the abrupt termination of stratified rocks. Its presence over a fault is an indication of .
vertical fault movement. Tr. 821. ,
152 Tr. 565, 599. '
153 Tr. 561. '
I i
l --. - - -..-_--._. __. _ _ _ _____ _ ___ _ _
[ 53 material overlying the fault' is or is not displaced.154 In his view, the method followed by the ISGS did.not provide
- this " critical information" because of the " relative in-accuracies" of the technique.155 Dr. Woodard admitted, ,
I
- . however, that his proposed method, like core drilling.and
. - seismic refraction, in and of itself would not provide ..
absolute proof of fault movement.156 The Licensing Board was not persuaded on-the need for the " excavation" and " direct observation" insisted upon by ,
j .
Dr. Woodard. According to the Board, the evidence already in the record on the Plum River Fault Zone was " considerable ,
and convincing," justifying the conclusion that the Plum River Fault Zone was not capable. As it explained:
The Board relied principally on testimony presented by the [s]taff based on and supported by the observation and analysis of data by the ISGS and reported in its Circular 491. These arguments by the [s]taff, leading to the conclusion that the ,
I overlay of till has not been disturbed in recent geologic times, include the absence of an escarpment at the fault, the equality of the elevation of the bedrock strata bordering the l fault even though those strata are of different ages, and the tectonic history of the region which
- includes no record of local seismicity. Addi-tionally, the finding of no fault in northern Illinois which has displaced overlying Illinoian-age soil and that there are no known capable faults in the United States east of the 154 Tr. 565-68, 574.
- 155 Tr. 571.
~
l 156 Tr. 568.
. i I
54 l
l Rocky Mountains assisted the Board in concluding that the noncapability of the Plum River Fault Zone has been sufficiently demonstrated to support our decision that no movement has occurred at Plum
-- River w{ggin the past 0.13 to 0.40my (million years]
- On the record before us, we see no basis for the i; --
!c re3ection of the Board's analysis of the matter. .The . Plum
- - - -River Fault Zone had been studied in detail by the agency -
undoubtedly most familiar with the geology of the area, which found no evidence suggesting that the fault might be capable. Similarly, studies of the area by.the applicant's -
and staff's experts uncovered no such evidence. In the . .
circumstances, the Licensing Board had an ample foundation .
-- for its conclusions, contrary to the opinion of Dr. Woodard, that the Plum River Fault Zone had been adequately investigated and that the Zone contained no capable faults.
- 3. As noted earlier (pp. 41-42, supra), a nuclear 5
power plant must be designed to withstand the ground acceleration that might occur as a result of an SSE and OBE. .
- To arrive at the SSE for the Byron facility, the applicant
- studied the seismic history of the area and ascertained that
~
the greatest intensity earthquake to have occurred in that -
area was a Modified Mercalli (MM) VII - VIII earthquake at 157 LBP-84-2, sdpra, 19 NRC at 245.
--- .. - - _ - _ - _ - _ _ _ = - .
55 Anna, Ohio in 1937.158 Although no earthquake of that intensity had ever been recorded closer to the* Byron site, for conservatism (and at the request of the staff) the applicant postulated a MM VIII earthquake and associated
- . ground acceleration of 0.2g as the basis for the Byron
- : :: SSE. It then confirmed the appropriateness of that value for the Byron site conditions. For this purpose, it utilized the data from an existing study conducted in connection with the establishment of the SSE for the Tennessee Valley Authority's Sequoyah Nuclear Power Plant located near Chattanooga, Tennessee.
4 As for the OBE for Byron, its value was arrived at following a study of the earthquakes known to have occurred in a 250-mile radius from the site during a ninety-year period.160 on the basis of that study, it was determined s
i 158 Tr. fol. 479 at 4-7 (Singh); Staff Exh. 1 at 2-24.
Earthquakes are generally reported in terms of intensity (on the so-called Modified Mercalli Intensity Scale) or .
magnitude (on the so-called Richter Scale.) The Modified Mercalli Scale is based on sensed ground motion and observed l~ damage to buildings, etc. The Richter magnitude is generally related to the total amount of energy released by the earthquake and is determined by movement on a standard seismometer. These movements are then corrected for distance from the epicenter of the earthquake. See R.
Foster, Physical Geology (1971) at 311-14.
159 Tr. fol. Tr. 479 at 4-7 (Singh); Staff Exh. 1 at 2-24 to 2-27.
160 Tr. 491-92.. The ninety-year period ran from 1880
' (Footnote Continued)
. 56 that the largest earthquake that could be expected to affect the Byron site during the operating life of the facility -
- r I - '- - would have an intensity of MM VI with a corresponding ground -
acceleration of less than 0.07g at the site.l.61 po, i
-- : = conservatism, the peak acceleration value was increased to 0.09g.162
~
~ ~
Both the applicant and (on behalf of the NRC -staff) the Lawrence Livermore Laboratory independently calculated the
-- -likelihood of the occurrence of an earthquake that might -
~
produce a 0.09g acceleration at the site. The applicant's -
-- :: :- ' analysis indicated such an earthquake would occur once in
- - every 2150 years;163 the Livermore conclusion was.a
- - recurrence rate of once in every 200 to 1000 years.164 Although not undertaken for Byron but rather as part of a general study, probabilistic estimates of earthquake hazards i
(Footnote Continued) to 1970. Ibid. _
161 Staff Exh. I at 2-27 to 2-28.
162 Ibid.
163 Tr. 757; Tr. fol. 760 at 4 (Rothman). The site for purposes of the calculation was considered to be an area with an 18-mile radius from the plant. Tr. 493.
164 Tr. fol. Tr. 479 at 6-7 (Singh). The difference in the estimates, according to Dr. Robert L. Rothman, NRC staff seismologist, is most probably caused by different techniques used and the assumptions made in performing the study. Tr. 757-58; Tr. fol. 760 at 5 (Rothman).
L
57 in the central United States were performed by Dr. Robert B.
j Herrmann of St. Louis University. His calculations showed a return period in the order of once every 1000 years for peak accelerations of about the 0.09g level in the site area.165 ,
- On the basis of this evidence, the Licensing Board
- - found the ground acceleration values of 0.2g for the SSE and 0.09g for the OBE to be appropriate. TLe intervenors do not challenge the former finding (except as discussed with respect to the Plum River Fault Zone) but do argue that
- sufficient justification has not been shown to support the Board's endorsement of an 0.09g value for the OBE.1 As best as-we can understand it, the gist of their argument is that the OBE was not correctly determined because its value l was based on the Sequoyah study. That study could not be
- used for that purpose, according to the intervenors, for the reason that it was not " Byron specific" and, additionally, did not take into proper consideration the ground !
(
165 Tr. fol. 760 at 5 (Rothman); Tr. 757-58.
166 The intervenors
! Brief of Intervenors at 57.
! apparently recognize that Commission' regulations permit. .
exceptions to this requirement. ALAB-644, supra, 13 NRC at
- 989-92. Their only disagreement lies in the factual basis i for the Licensing Board's approval of the exception here.
1 i
l
.. _ _ _ _ . . . _ _ _ _ _ - - - . _ . ~ ~ . .. __ _ _ _ _ - _ _ - . _ __
f 58
$- i
~
, - acceleration that resulted from a 1982 earthquake at Enola, .
Arkansas.167 ,
j+ - i s: - -
. The short and complete answer to the intervenors' -
- -. - argument is that the Sequoyah study was never used for
~
-- : 1 -
. purposes of the OBE. Instead, it was employed only in . .
ii: .- : - connection with the formulation of the SSE value and, even - - : -
1 i -
- then',, solely to confirm the adequacy of the 0.2g value after .
!:- - it had been established on the basis of data from a study of
.. - - the seismological history of the Byron region and local site conditions.168 _
167 Brief of Intervenors at 57. .
i 168 In any event, we find the intervanors' claim regarding the Enola earthquake without merit. According to Dr. Woodard, that earthquake recorded ground acceleration of r 0.59g, far higher than the ground acceleration values adopted for the SSE and OBE. Tr. fol. 548 at 4 (Woodard).
He thus maintains that, until ground acceleration data are available for any of the earthquakes that have occurred ' -
recently in northern Illinois, the effect on the Byron [
structure of potential earthquakes ranging in intensity from ;
MM IV to VIII remains unknown. Ibid.
We disagree. As explained earlier (see pp. 54 . 55,-
- supra), the 0.2g value for the SSE was based on studies of l
'the intensities of earthquakes that had occurred in the -l i - -
! Byron area. Tr. fol. 479 at 4-6 (Singh). The earthquake characteristics developed for the 0.2g Byron SSE were then confirmed by comparison with characteristics determined from ;
real accelerograms of earthquakes of magnitudes of approx- ;
imately-5.8 (equivalent to MM VIII earthquakes) at a site !
having features similar to those at Byron. Tr. fol. 760 at 3
2-3 (Rothman). We do not believe that the 0.59g value .,
obtained from a single recording compromises the validity of the SSE and OBE. More than 20,000 small earthquakes have I occurred in the Enola area and apparently only that one [
(Footnote Continued) l l
t I
r
59 In sum, we reject the intervenors' attack upon the ,
0.099 ground acceleration value assigned to the Byron OBE. ,
- - In common with the Licensing Board, we conclude that that .
value has sufficient record support. .
III.
SUA SPONTE REVIEW For the reasons set forth above, we have found the intervenors' challenges to the initial decision and supplemental initial decision to be without merit. Pursuant
_ __._,to cur long-standing practice of reviewing, sua sponte, "any
- 1 -
final disposition of a licensing proceeding that either was or had to be founded upon substantive determinations of significant safety or environmental issues,"169 we have also (Footnote Continued) recorded a ground acceleration of 0.59g. Id. at 6. Another seismograph, co-sited with the first, recorHed a ground s acceleration of 0.19g. Ibid. The Tennessee Earthquake Information Center, which monitored the earthquake,
~
- attributed the 0.59g acceleration to " installation effect."
Ibid. And most significant, the earthquake was of short duration (three seconds), had a ground motion of high frequency, and caused no damage to the shed in which the seismograph involved was located. Id. at 6-7. This suggests an earthquake with little eEergy and motion that would be well encompassed by the design of a nuclear plant.
Id. at 7.
169 0ffshore Power Systems (Manufacturing License for Floating Nuclear Plants), ALAB-689, 16 NRC 887, 890 (1982);
Sacramento Municipal Utility District (Rancho Seco Nuclear '
Generating Station), ALAB-665, 14 NRC 799, 803 (1981),
quoting Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-571, 10 NRC 687, 692 (1979); -
(Footnote Continued) i
s 60 examined the balance of the two decisions. We have found no error requiring corrective action.170 ,.
- Ir :: -~ ! only one issue warrants any further discussion. That .
I: issue relates to the quality assurance program of the-
-- Systems Control Corporation (SCC), a supplier.of various 2: 1- -
e lectrical equipment for the Byron plant, and the actions ,of
~~ :
the applicant in overseeing that program.171. . ..
Serious quality assurance failures at SCC led the
- applicant to establish in 1980 an independent inspection .
program of SCC's work. In its January initial decision, the r '- - '
- Licensing Board observed that the quality assurance program .
of SCC " broke down" but concluded that "100 percent (Footnote Continued)
Philadelphia Electric Co. (Peach Bottom Atcmic Power ~ ' ~
Station, Units 2 and 3), ALAB-50 9, 8 NRC 6 7 9~,~ 68 3 n. 8 -
(1978). ,
170 Although not affecting the Licensing Board's decision to authorize the issuance of operating licenses for the plant, we note an incorrect statement made by the Licensing Board in its findings on the applicant's .
occupational radiation program for the Byron plant. .In . -
discussing the potential risks of radiation exposures during .
pregnancy, the Board concluded that "[p]re-conception .
internal accumulations of strontium-90 would have been -
- detected by whole-body counting." LBP-84-2, supra, 19 NRC at 94. The typical industrial whole body counter cannot detect Sr-90. Nevertheless, our review of the record confirms that other types of monitoring and bioassay procedures used by the applicant would detect Sr-90 in the workplace and in the worker in the event such exposures'were to occur. See generally Tr. fol. 1157 at 25-27 (Rescek);
Tr. 1195-1212; Tr. fol. 1707 at Exh. 8 (Van Laere). .
171 See ALAB-770, supra, 19 NRC at 1179-80.
^
61 reinspection of Systems Control work may remove the matter from a direct safety concern."372 Subsequent.to the
- re'dition n of that decision, however, we received information from the applicant and staff indicating that the 1004 i::'- -- :-- reinspection predicate to that Board's safety conclusion may. . .
not have been correct.173 -
~
At our urging, the matter was extensively explored further at the hearing on remand. It developed that the applicant had not conducted a 100% inspection of the SCC
~
- equipment but, rather, had looked at only a sample.174 Because of deficiencies found in the equipment and the limited scope of the sampling employed, the staff required the applicant to undertake an evaluation and reinspection program sufficient to demonstrate that all equipment
- supplied by SCC was capable of withstanding required loads in conformance with applicable codes.175 A number of witnesses were heard on the applicant's efforts in that respect.176 Testifying were a 172 LBP-84-2, supra, 19 NRC at 135, 216.
I3 See ALAB-770, supra, 19 NRC at 1179-80.
14 Tr. fol. 10,319 at 4 and Attachment A (Marcus); Tr.
fol. 10,478 at 6 (Hayes, et al.).
175 Tr. fol. 10,478 at 8 (Hayes, et al.).
176 LBP-84-41, supra, 20 NRC at (slip opinion at 130).
,2 62 representative oZ the Westinghouse Electric Corporation,
- which had evaluated the structural adequacy ef the main
i ' -- :- ~ control panels supplied by SCC; and representatives of -
~
Sargent & Lundy, which had both (1) evaluated the adequacy of the DC fuse panels, cable trays, cable tray hangers, and
- ' ~~ -
--local instrument panels and (2) performed a. statistical .
~ ~ ~
- ' analysis of those evaluations.177 Testimony was also received from the Manager of Projects (who was also a
' " mechanical engineer) for Torrey Pines Technology (TPT) , _.
- which had performed an independent third-party review of.the
~ '
various aspects of SCC's work.178 In addition, three -
members of the NRC staff testified,with regard to their own n review of the reinspection and evaluation programs.178 .
On the basis of the evidence adduced at the remanded hearing, the Licensing Board concluded in its supplemental s
177 Id. at (slip opinion at 131). .
. 178 (slip opinion at 130-31) . For each kind Id. at of SCC equipment 7"TPT collected and evaluated pertinent records, performed an engineering evaluation of the technical bases used to substantiate the acceptability of SCC work, reinspected samples of SCC work, and documented discrepancies found during such reinspection. Id. at (slip opinion at 131-32); see also Tr. fol. 10,7T4 at T:12 (Johnson).
~
I LBP-84-41, supra, 20 NRC at (slip opinion at 131).
63 ,
initial decision that, except for cable tray hangers,180 which were then still undergoing reinspection and analysis, the-SCC-supplied equipment was adegaate to accept design loads without exceeding the stresses allowed by applicable
~
codes.181 All the parties agreed with this assessment.. .
- ' ~ Without objection of any party, the Board left to the staff the responsibility for assessing and reviewing the adequacy of the inspection program relating to the cable tray hangers.182 180 Cable tray hangers are used to support the trays that, in turn, support and protect electrical cables. Id.
~~
at ,
(slip opinion at 133).
181 Id. at (slip opinion at 132). -
s 182 Id. at (slip opinion at 137). This inspection program iTthe tETEd stage of applicant's program for verifying the adequacy of the cable tray hangers. The first was a computer analysis of the load capacity of three hangers, of 80 hangers inspected, which had the greatest reduction in load capacity due to discrepant welds. This analysis showed that all three hangers could bear at least two times design load without exceeding code-allowable stresses. Id. at -
(slip opinion at 134); Tr. fol.10,159 at 14-15 (Kostal); Tr. 10,241. The second stage was a program of inspection and repair of about 3000 (out of 5637 hangers) selected hanger connections for missing portions of Welds. Because at least one of these hanger connections was found to have load capacity reductions beyond the specified amount, the third stage of the program was instituted to inspect all of the remaining accessible connections plus others that could reasonably be made accessible. LBP-84-41, supra, 20 NRC at (slip opinion at 135-37).
, t
< i 64 i As staff counsel reported at oral argument last month, ,
.- that' program is now completed.183 It origindily called for
" ' ' - ~ ~ ~
the' inspection of all accessible welded connections on cable
' ~ '
tray hangers and two specified types of welded connections r that were accessible only by removal of obstructions such as.
{*:-- <
! ! - ~;~~'2'fireproofing material or block walls.184 The program was ..
later expanded to include additional types of hangers that . ,
~
- also had to be made accessible, with the result that only i i
]
816 out of 31,583 SCC welded connections on cable tray
~
hangers were not reinspected.185 of the more.than 30,000 .
j
- ' welded connections that were reinspected, it was determined f-that only 83 had missing portions of welds, and that none f l
! had design significance.186 We have no reason to disagree with the Licensing q
Board's ultimate conclusion respecting the adegaacy of SCC furnished equipment. Specifically, we believe that the , g serious deficiencies that existed earlier with respect to s
183 App. Tr. 84-85.
. t i 184 LBP-84-41, supra, 20 NRC (slip opinion at 136); l
. Tr. 10,489. l 185 Letter from L.O. Del George to the Regional !
l Administrator, NRC Region III (Sept. 26, 1984), attached to '
- letter from M.C. Furse to Licensing Board (Sept. 28, 1984). j 186 .'
Ibid.
i
, t
65 SCC's quality assurance program, and the applicant's failure to oversee it properly, have been cured. Weibase that belief upon the extensive reinspection program,.the engineering evaluations and analyses of various equipment, and review of all of the types of SCC's work by an independent party and the NRC staff -- in totality they provide reasonable assurance that the SCC furnished equipment is acceptable. This conclusion applies equally to cable tray hangers. From the results of the reinspection program, there is nothing to suggest that the few
' uninspected welded connections have any deficiency of safety significance. -
For the foregoing reasons, both (1) the Licensing s Board's October 16, 1984 supplemental initial decision and (2) the portion of that Board's January 13, 1984 initial decision concerned with issues not covered by the ALAB-770 remand are affirmed. ,
S i
i
t
. .a 66
'_. FOR THE APPEAL (BOARD O N _\ S -- 'd ~
C. gan Shoemaker
- :- Secretary to the
_:. Appeal Board
- -' The Appendix to this opinion follows, pp. 67-70, infra.
- \
S O
. 67 APPENDIX ' .*
June 13, 1984 Appeal Board Memorandum and Order in Byron proceeding. ,.,
[ Caption omitted]
U - - - -
In ALAB-770,1 we remanded the record in this operating
- license proceeding to the Licensing Board with instructions
~ ~
--to conduct a further evidentiary hearing on the quality
-- assurance issues and to render a supplemental initial.
decision. In footnote 73 of our decision, we announced .
that:
~~
With a single exception, our conside~ ration of all non-quality assurance issues raised by the intervenors will abide the event of the rendition of the supplemental initial decision. The
exception is the financial qualifications issue.
- The Licensing Board precluded the intervenors from
- pressing a contention that the applicant was not ,
financially qualified to operate the facility.- It did so because, effective March 31, 1982, the
- Commission had amended its regulations to remove
___ financial qualifications issues from, inter alia, licensing proceedings such as this one. 47 FeH7 Reg. 13750 (March 31, 1982). Last February,"~~
E'- 'i!'
however, the Court of Appeals for the District of -
Columbia circuit held the amended rule was not - -
~~
supported by its accompanying statement of basis and purpose, as required by the Administrative Procedure Act. Accordingly, the court remanded the rule to the Commission for further proceedings consistent with its opinion. New England
. Coalition on Nuclear Pollution v. Nuclear I
19 NRC (MAy 7, 1984).
68 Regulatory Commission, No. 82-1581, [727] F.2d
[1127] (D.C. Cir. February 7, 1984) .
The court's mandate having been issued, we solicited the views of the parties respecting the course that now should be followed on the financial qualification question in this case. In addition, we expect generic Commission guidance to be forthcoming shortly. Once it has been received and considered, we will issue a further order on the matter.
~
' Chi June 7,1984, the Commission issued its generic guidance in the form of a Financial Qualifications Statement of Policy. Noting that, in response to the Court of Appeals' decision, it had " initiated a new financial qualification rulemaking to clarify its position on financial qualification reviews for electric utilities," the Commission stated that it anticipated that the new rule eliminating financial review at the operating license stage only will soon be in place. While there are no construction permits proceedings now in progress, there are several ongoing operating license proceedings to which the '
new rule will apply. It would not appear reasonable'to construe the Court's opinion as requiring that the Commission instruct its adjudicatory panels in these proceedings to begin
- the process of accepting and litigating financial quali:'ications contentions, a process which would delay the licensing of several plants which are at or near completion, only to be required to dismiss the contentions when the new rule takes effect in the near future.
Accordingly, the March 31, 1982 rule will continue in effect until finalization of the Commission's response to the Court's remand. The Commission 2
49 Fed. Reg. 24,111 (1984).
l-
___ _ ~ _ , _ , . . _ _ __ , . . _ _ . . . , . _ . , _ . _ . . . _ _ - . - - . _ _ . _ -
, \'
4 .
69
}~
directs its Atomic Safety and Licensing Board Panel and Atomic Safety,and Licensing Appeal Panel ~
to proceed accordingly." _ ~ 1 ((i
~~~
7' - Given this clear directive, all we need now consider is .
i
/-J__ _2 the intervenors' claim that they made a prima facie showing l- r' I : below of "special circumstances" warranting the conclusion -
- :: ' that the application of the 1982 financial qualifications -
' : rule in the proceeding at bar "would not serve the purposes - l for which the rule . . . was adopted."4 We agree with the
~ 1
- Licensing Board that the intervenors have not fulfilled -
1 R- ~
their burden on that score: there is simply.nothing in .
l
'3
- their averments that materially distinguishes this ;- : - - - - -
' proceeding from any other in which a party might wish to put r
~
in issue the sufficiency of the applicant utility's economic -
resources. Hence, no cause exists to certify to the Commission the matter of whether the 1982 rule should be
' waived insofar as it precludes an inquiry into this $
applicant's financial qualifications.5
- It follows that, absent some future development having i' ~ -
the effect of reinstating the entitlement to raise financial
- qualifications questions in operating license proceedings, the intervenors' contentions addressed to that subject are i
3 Ibid. (emphasis supplied) .
l j 4 See 10 CFR 2.758 (b) and (c).
5 see 10 CFR 2.758 (d) .
i
+----.,,mv_.-n,v.,,.,,.,,,,,,---_mw_ _.__w,,,,,_,.,,-,- c,,,,_._,,_____n.-- - r-,-,w , r
s.
, 70 not litigable. The hearing on the ALAB-770 remand will thus continue to be restricted.to quality assuranbe' issues.
It is so ORDERED. - -
- FOR THE APPEAL BOARD
/s/ Barbara A. Tompkins 1
Barbara A. Tompkins (
Secretary to the Appeal Board k
+
h a
J, t ,
L
- Attachment D 9
h D
O O
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