ML20205H881

Nuclear Regulatory Commission Issuances for September 1986.Pages 397-488

ML20205H881
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Issue date:	03/31/1987
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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NUREG-0750, NUREG-0750-V24-N03, NUREG-750, NUREG-750-V24-N3, NUDOCS 8704010165
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NUREG-0750 Vol. 24, No. 3 Pages 397-488 NUCLEAR REGULATORY COMMISSION.lSSUANCES

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Available from Superintendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 4 hardbound editions for this publication.

Single copies of this publication are available from National Technical information Service, Springfield, VA 22161 Errors in this publication may be reported to the Division of Technical Infortnation and Document Control, Office of Administration, U.S. Nuclear Regulatory Cnmmission. Washingto ., D.C. 20555 (301/492-8925) or (301/492-7506)

t i NUREG-0750 Vol. 24, No. 3 Pages 397-488 i NUCLEAR REGULATORY COMMISSION ISSUANCES September 1986 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported herein

. are not to be deemed a part of those opinions or to have any indepen-dent legal significance.

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Prepared by the Division of Technical Information and Document Control, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20556 (301/492-8925) 1

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COMMISSIONERS

. Lando W. Zech, Jr., Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal i Kenneth M. Carr l

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l Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety and Licensing Board Panel 4

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9 I CONTENTS Issuances of the Nuclear Regulatory Commission LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket 50-322-OL-5 (Emergency Planning Exercise)

MEMORANDUM AND ORDER,

/ CLI 86-16, September 26, 198 6.. .... ........... .......................405 TEXAS UTILITIES ELECTRIC COMPANY, et al.

(Comanche Peak Steam Electric Station, Unit 1)

Docket 50-445-CPA

. MEMORA'NDUM AND ORDER, CLI.86-15, September 19, 1986... .... . . . . . . . . . . . . ....... 397 Issuances of the Atomic Safety and Licensing Appeal Boards FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Plant, Units 3 and 4)

Dockets 50-250-OLA 1,50-251-OLA 1 (Vessel Flux Reduction)

MEMORANDUM AND ORDER, ALAB-846, September 16, 19 8 6............... . ...... ..... 409 FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Plant, Units 3 and 4)

Dockets 50-250-OLA 3,50-251-OLA 3 (Increased Fuel Enrichment) i MEMORANDUM AND ORDER, ALAB-848, September 2 4, 19 8 6... ........ ........ . ... ... . .. .. ..... . ,.. 434 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket 50-322-OL 3 (Emergency Planning)

DECISION, ALAB-847, September 19, 1986--- .... ... .... ..... 412 1

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

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

MEMORANDUM AND ORDER, LBP-86-31, September 18,1986 . . 451 CONSUMERS POWER COMPANY (Midland Plant, Units I and 2)

Dockets 50-329-OL&OM,50-330-OL&OM (ASLBP Nos. 78 389-03-OL,80-439-02-SP)

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MEMORANDUM AND ORDER, LBP-86-33, September 26,1986.. 474 PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units I and 2)

Dockets 50-352-OL,50-353-OL SUPPLEMENT TO THIRD PARTIAL INITIAL DECISION, LBP-86-32, September 5,1986.. .... ....... 459 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al (Seabrook Station, Units I and 2)

Dockets 50-443-OL 1,50-444-OL 1 (ASLBP No. 82-471-02-OL)

(Onsite Emergency Planning and Safety Issues)

MEMORANDUM AND ORDER, LBP 86-30, September 15,1986.... .. .. ..... . 437 Issuance of Director's Decision PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)

Docket Nos. 50-275, 50-323 DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206, DD-86-12, September 30,1986= ... . 483 l

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% 1 Cite as 24 NRC 397 (1986) CLl-86-15 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Lando W. Zech, Jr., Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Kenneth M. Carr in the Matter of Docket No. 50-445 CPA TEXAS UTILITIES ELECTRIC COMPANY, et s/.

(Comanche Peak Steam Electric Station, Unit 1 September 19,1986 The Commission offers guidance on the admissibility of a contention into the construction permit extension proceeding. The Commission holds that if a permittee is seeking a construction permit extension be-cause of delays associated with the need to correct safety problems, any delays arising therefrom would be " good cause" for an allowance of more time for plant completion. In this context, a contention directed only at permittee's past conduct would not be sufficient to defeat a con-struction permit extension.

CONSTRUCTION PERA!IT: EXTENSION OF COhlPLETION DATE (GOOD CAUSE)

A permittee may demonstrate " good cause" for a construction permit extension in one of two ways. A permittee may demonstrate that there was good cause for the past delay in plant completion, or a permittee may show that its current and future actions are " good cause" for an allowance of more time for pirat completion.

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CONSTRUCTION PERMIT: EXTENSION OF COMPLETION DATE (GOOD CAUSE)

Where the permittee asserts the need for more time to correct safety deficiencies, the Licensing Board should not look to past conduct to de-termine " good cause" for the extension.

MEMORANDUM AND ORDER This matter is before the Commission on a question certified to it by the Atomic Safety and Licensing Appeal Board (" Appeal Board") re-garding the admissibility of a contention into a construction permit

("CP") extension proceeding. The Texas Utilities Electric Company

("TUEC") seeks an extension of construction permit CPPR-126 which authorizes it to construct Unit I of the proposed two-unit facility at Co-manche Peak near Glen Rose, Texas. We have discussed the background facts surrounding this episode elsewhere, so we will not repeat them at length here. See CLI 86-4,23 NRC 113 (1986). Briefly, TUEC submitted an natimely application for an extension of the CP which the Staff ap-proved. The Citizens Association for Sound Energy (" CASE"), an inter-

' venor in the ongoing operating license proceeding, filed a request for a hearing on the construction permit extension under 9189a of the Atomic i

Energy Act ("AEA"), 42 U.S.C. I 2239(a). We referred the request to the Atomic Safety and Licensing Board (" Licensing Board") for a post-extension hearing under 10 C.F.R. Part 2. See CLI 86-4, supra. 23 NRC at 121. The Licensing Board began proceedings to define and resolve contentions whether TUEC had demonstrated " good cause" for exten-sion of the permit. See i 185 of the AEA, 42 U.S.C. I 2235; 10 C.F.R. 9 50.55(b)(1986).

On May 2,1986, the Licensing Board issued a Memorandum and Order (unpublished) admitting CASE and an individual named Meddie i

Oregory as a consolidated intervening party with one consolidated con-tention. See ASLBP No. 86-528-02 CPA (May 2,1986). ("ASLBP Op.")

That contention alleges that:

Applicants have not met their burden of proving that the delay in completion of construction was not caused by their own dilatory conduct.

a. Apphcants have not eiven any reason for the existence of the delay. They only assert they need rnore time to complete a reinspection, redesign. and recon-struction program but they do not disclose the reawn why such programs are needed or that the reason for delay was not intentional and without a valid pur.

Pose.

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b. The real reasons for the delay in construction completion were that:  ;

1. Applicants deliberately refused to take positive action to reform their QA/QC program in the face of consistent criticism, and

2. Applicants have failed to properly design their plant, specifically:

1. Applicants failed to correctly apply fundamental engineering princi-Ples, ii. Applicants failed to properly identify unique designs in their PSAR, iii. Applicants constructed much of tl'.ar plant prior to its design having been completed,

. iv. Applicants have failed to comply with 10 CF.R. Part 50, Appendices A and B. including their failure to promptly identify and correct design deficiencies, and deliberately refused to take positive action to correct such deficiencies.

ASLBP Op. at 7. Essentially, the contention appears to allege that TUEC had a corporate policy to construct the plant in violation of NRC requirements, and that subsequent discovery and efforts to correct these viola' ions caused the delay. Therefore, argues CASE, the delay does not constitute " good cause" because of the deliberate, intentional, and know-ing nature of the violations which caused it.

Both TUEC and the Staff have appealed the decision admitting that contention to the Appeal Board. The permittees assert that any delay for reinspection and correction of defects, regardless of their root cause, is

" good cause" for an extension under both the statute and NRC regula-tions, citing the Commission's decision in Washington Public Power Supply System (WPPSS Nuclear Project Nos. I and 2), CL1-82-29,16 NRC 1221,1230-31 (1982) ("WPPSS"). The Staff challenges the admissibility of the contention on two other grounds which are not relevant to the question before us today.8 .

The Appeal Board certified a question to us under 10 C.F.R. I 2.718(i)

(1986) and our Statement of Policy on Conduct of Licensing Proceedings, CLI-818,13 NRC 452,456 (1981). That question reads: "Is the admit-ted CASE / Gregory contention . . . foreclosed as a matter of law by 8 The staff argues that (1) the Licensing Board incorrectly reined upon information developed in the bcensms proceedmg to cure dericiencies in the basis supporting the intervenors' contentions and (2) in light of the intervenors' statement that it does not seek dental of the pernut but instead seeks imposition of certam conditions on the construction permit, together with the Licensina Board's determmation that it lacks authonty to kmpose those conditmons, a heanns is not warranted. See NRc staff's Brief to the Appeal Board at 3 (May 12.1986L These usues are act before us at this time and we espress no opinion on them. The staff does not support TUEC's broad interpretation of " good cause as defined in Wrr53.

See Transcnpa of oral Argument Before Atomic safety and Licensing Appeal Board at 28 32 (June 18, 1986).

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B f (WPPSS}" Texas Utilities Electric Ca (Comanche Peak Steam Electric Station, Unit 1), Appeal Board Memorandum and Opinion (July 2.1986)

(" Slip Op."). In answering the question below, we have carefully re-viewed all of the relevant papers and arguments of the parties to the Boards below.'

Initially, we must start with language of the statute at issue which pro-vides in pertinent part that "[u]nless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights there under be forfeited, unless upon good cause shown, the Commission extends the completion date." f I85 of the AEA,42 U.S.C. p 2235 (emphasis added). The regulation implementing this statute states that the applicant must complete construction "by the latest com-pletion date" or face forfeiture of its rights under the permit. "Provided, however, that upon good cause shown the Commission will extend the completion date for a reasonable period of time. The Commission will recognize, among other things. . . . [ specific enumerated acts] and other acts beyond the control of the permit holder, as a basis for extending the completion date." 10 C.F.R. 9 50.55(b)(1986)(emphasis added).

As we read the statute, the implementing regulation, and agency case law, a permittee may demonstrate good cause for a CP extension in two different ways. First, as the regulation in 10 C.F.R. 9 50.55(b) expressly contemplates, a permittee will demonstrate " good cause" for the exten-sion if it demonstrates that there was good cause for the past delay in plant completion. Public Service Ca ofNew Hampshire (Seabrook Station, Unit 2), CLI 84-6,19 NRC 975, 978 (1984) ("Scabrook"); Washington Public lbwer Supply System (WPPSS Nuclear Project No. 2), ALAD 722, 17 NRC 546, $51 (1983). Indeed, most past CP extension requests have alleged good cause for the past delay. Our decision in Seabrook further dermed good cause for the past delay. In Seabrook the Commission was confronted with contentions in the CP extension proceeding that related to need for power, cost of completion, and financial consequences to the utility and ratepayers. There was no attack on the sufliciency of appli-cant's asserted reasons for the past delay. In this context, we stated that in order to defeat an extension request based on good cause for the past delay:

e We assume for purposes ot deasson, that the contention as alleged en true.

400

e e "Ftrst, the construction delays at issue have to be traceable to the apphcant. Second.

the delays must be ' dilatory.' If both prongs are met. the delay is without ' good cause.'" Washington Public lbwer Supply System (WE PSS Nuclear Project No. 2).

ALAB 722.17 NRC 546. 551 (1983). In other words. the proponent of the conten-tion must articulate some basis to show that the applicant is responsible for the delay and has acted intentionally and without a valid business purpose. M at $$3.

Seabrook. supra,19 NRC at 978.

On the other hand, a permittee may also demonstrate good cause for a CP extension by showing not that there was good cause for the past delay, but that there is now good cause for the NRC to allow more time for plant completion. Unlike the first way to show good cause, which focuses on the permittee's past actions, the second option focuses upon the permittee's current and future actions. WPPSS addressed efforts to correct safety deficiencies in relation to this second method to show good cause.

Our holding in WPPSS was intended to encourage licensees to conduct vigorous internal investigations and remedial safety actions by not penal.

izing them for any completion delay caused thereby. See 16 NRC at 1230-31. On its face, WPPSS does not distinguish among innocent, negli-gent, or intentional violations of NRC requirements as the root cause of the deficiencies requiring correction. Moreover, we believe that WPPSS '

underlying philosophy intended no such distinction necessarily to be con-trolling. For example, if a utility were to adopt a corporate policy to construct the plant in willful violation of NRC requirements, but were then to reverse that policy, remove the wrongdoers, and embark on a new effort to construct a safe plant in full compliance with NRC require-ments, we could find that the new policy constituted " good cause" for an extension. We will not penalize a current management for the mis-takes of its predecessors in this regard. See, e.g., Aferropolitan Edison Ca (Three Mile Island Nuclear Station, Unit 1), CLI 85 2,21 NRC 282,296-306 (1985); Aferropolitan Edison Ca (Three Mile Island Nuclear Station, Unit I), CLI-85 9,21 NRC 1118,1135-40 (1985). This interpretation fur-thers the policy expressed in WPPSS of encouraging efforts to search out and correct safety deficiencies.

We turn now to the contention at issue in this proceeding. In its CP extension request, TUEC asserts good cause by alleging that the delays that have been required to date, and the additional time that will be re-quired in the future, are to determine and correct safety problems. CASE charges in response that TUEC had a corporate policy to construct the plant in violation of NRC requirements, and that later discovery of this policy and efforts to correct the violations caused and is causing delay.

For purposes of analysis, we turn first to the method to show good cause 401

described in WPPSS. If the permittee is seeking the permit extension be.

cause it claims good cause for the NRC to allow more time for plant completion under WPPSS,a this particular contention is barred by our WPPSS decision because, as currently worded, it focuses only on the permittee's past conduct, if a permittee is seeking a CP extension solely because more time is needed to correct dcDefencies, a contention worded like this one and directed only at past conduct would not be sufficient, even if true, to defeat the extension.

We focus next on the first method to demonstrate good cause for a CP extension by showing good cause for the past delay. A simple, mechani-cal application of the holding in Scabrook leads to the conclusion that a finding that construction delays arose from a deliberate corporate policy to construct the plant in violation of NRC requirements would virtually never defeat a CP extension. Such a corporate policy could hardly be characterized as " dilatory" conduct if, as is most likely to be the case, the policy was intended to speed construction. And if we go further and apply the Seabrook elaboration of what is meant by " dilatory," we would be hard pressed to avoid the conclusion that the policy, while inten-tional, had the valid business purpose to speed construction.

But in Scabrook there was no contention like the one before us in this case. And the Seabrook analytical framework would lead to the same result - dismissal of the contention as insufficient to defeat the extension request - even if the deliberate corporate policy to construct in viola-tion were an ongoing one, for even an ongoing policy would presumably have the valid business purpose to speed construction and not be "dila-tory." Yet to grant a CP extension request in the face of a finding that the past delays were caused by a past and still ongoing policy of deliber-ate violations would be to reward such wrongdoing. Surely the drafters of the Atomic Energy Act cannot have had this in mind when they al-lowed CP extensions for good cause.

We conclude that the Seabrook framework for testing contentions in a 4 CP extension proceeding does not work well when applied to the type of CP extension request and contention at issue in this proceeding. We therefore decline to extend it to this case. Instead, the question is whether, in view of the safety purposes of the Atomic Energy Act, the need to evaluate and correct safety deficiencies can be good cause for delays in construction completion even when those deficiencies resulted from deliberate corporate wrongdoing. Our analysis here proceeds along the same lines as the analysis under the second way to show good cause,

1. &n Leiter from permittee's counsel to secretary chdh dated February 4.1986, at 6. and "Oppositum of leau Uubhes Wectrw company, er el to Request for stay" dated February l),1986, et 11 001

r and leads to the same result. We should not reward wrongdoing by granting a CP extension in the face of a finding that construction delays arose from deliberate wrongdoing, but we also should not penalize a cur-rent management for the mistakes ofits predecessors. We beheve that the appropriate balance is struck by holding that if there was a corporate policy to speed construction by violating NRC requirements, and that policy was discarded and repudiated by the permittee, any delays arising from the need to take corrective action would be delays for good cause.

Thus, if a permittee is seeking a CP extension because of delays associ-

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• ated with the need to correct safety problems, a contention, worded like this one, that is directed only at past conduct would not he sufficient, even if true, to defeat the extension.

The Appeal Board should determine the admissibility of the consoli-dated intervenors' contention in accord with this guidance.

The additional views of Commissioner Bernthal are attached.

It is so ORDERED.

i For the Commission SAMUEL J. CHILK Secretary of the Commission Dated at Washington, D.C.,

this 19th day of September 1986.

COMMISSIONER BERNTHAL'S ADDITIONAL VIEWS I concur in the result reached in the proposed order; in my judgment the criteria set forth in ALAB 722 (and applied by the Commission in the Scobrook proceeding) for determining whether a utility has been dila-tory in executing a construction project could never have been intended to apply to circumstances such as those present in the Comanche Peak case.

But I am troubled that the term " valid business purpose" should ever have found its way into the Commission's lexicon of jurisprudence in construction permit extension cases - as if the Commission were equipped to make judgments on matters of business and economics.

indeed, such terminology is reminiscent of the Commission's dubious charge to rule on "need for power" and " financial qualifications."

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! question whether the Commission today should ever deny a con-

' struction permit extension request on other than public health and safety grounds. The original purpose of the so-called " latest date for comple-tion of construction" inserted in all permits was related solely to ques-tions of adequate nranium supply for commercial reactors - a consider-ation that has long since lost its currency.

Issues of economics and " business purpose" are more properly the sub- '

. 4 ject of prudency hearings before state public utility commissions. There.

fore, I believe the Commission should modify its rule regarding construc-tion permit extension requests no that the rule is based solely on public health and safety considerations. Considerations of economics should be

, left to those with a statutory mandate and expertise in that arena.

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I Cite as 24 NRC 405 (1986) CLI-86-16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

, COMMISSIONERS:

Lando W. Zech, Jr., Chairman Thomas M. Roberts James K. Asseletine

. Robert M. Bernthal Kenneth M. Carr in the Matter of Docket No. 50-322-OL 5 (Emergency Planning Exercise)

LONG lSLAND LIGHTING COMPANY

'ehoreham Nuclear Power Station, Unit 1) September 26,1S46 The Commission denies Intervenors' motion demanding termination of the adjudicatory proceeding on the results of Licensee's emergency plan-ning exercise. The Comminion finds that while the status of a relocation center in Licensee's plan is not entirely clear due to its loss of the facility on which it had intended to rely, the ongoing hearing should proceed bc.ause it can lead to resolution of inues that involve functions not de-

- pendent on the relocation center. Furthermore, the Commission deter-mines that the State's enactment of legislation for the creation of a mu-nicipal power authority empowered to purchase Licensee does not offer a sound basis on which to terminate the hearing since the potential take-over is subject to many contingencies.

405

F MEMORANDUM AND ORDER BACKGROUND AND

SUMMARY

In CLI-86-il, 23 NRC $77 (1986), the Commission directed the ap-pointment of a Licensing Board to commence a hearing on the February 13, 1986 emergency preparedness exercise for Shoreham. A Board was appointed and has already conducted preliminary proceedings. After the issuance of CLI 86-II, two developments occurred which, intervenors argue in a July 21, 1986 Afotion to Reconsider, demand termination of both the exercise hearing and the whole proceeding on LILCO's emer.

gency plan. These developments are: (1) the June 16 action of Nassau County denying LILCO the use of the Nassau Coliseum as a reception

• center for potential evacuees in a Shoreham emergency; and (2) the July 3 enactment by the New York State legislature of legislation creating a municipal power authority (Long Island Power Authority - LIPA) em-powered to purchase LILCO, if that is in the best interest of otepayers.

Suffolk County, State of New York, and Town of Southampton hiotion for Reconsideration of CLI 86-il. The Staff and LILCO oppose the motion. We are not persuaded by Intervenors that the relief suggested is l warranted, and we deny the motion.

t ANALYSIS l Intervenors argue that a hearing on the exercise would be a waste of time and resources because Nassau Coliseum was the focal point of the exercise. In support of this argument, they assert that all bus drivers s

were trained to drive routes leading to the Coliseum, and " evacuees" were monitored and decontaminated at the Coliseum. Afore importantly, Intervenors add, the lack of a relocation center, and the lack of an agree-ment for a relocation center, violates NUREG-0654, and thus should lead to a Commission holding that the entire plan fails to comply with the Commission's emergency planning requirements in 10 C.F.R. I $0.47.

hiotion at 4 8.

Intervenors also argue that the creation of LIPA should lead to termi.

nation of the entire Shoreham proceeding because LILCO is no longer a bonafide applicant, and the Commission "cannot . . . have intended . . .

such pointless and wasteful litigation . . . ." /d. at 910.

Both the Staff and LILCO oppose the rnotion, arguing that while knowing the location of a reception center may be important to testing some functions in an exercise, most functions can be tested adequately 406 l

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without knowing the location of a reception center, e.g., how well emer.

gency personnel know correct dosimetry procedures, communications procedures, and mobilization procedures. As to a state takeover of LILCO. Staff and LILCO also observe that this is no certainty. The bill authorizes acquisition only if it benefits ratepayers, but LILCO notes that

' it's "far from free of doubt" that there's an acquisition price that can pro- ,

tect ratepayers and at the same time protect LILCO shareholders and f ,

- creditors. Response at 4.

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We agree with the Staff and LILCO that we should not reverse our

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decision to direct the conduct of a hearing on the esercise. While the

- status of the relocation center in LILCO's plan may not be entirely clear,  !

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. we are not prepared to agree with Intervenors that the Coliseum was

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such an important focus in the esercise that the ongoing hearing will be

. wasteful and pointless. Much can be accompiished in the ongoing hear. ,

ing in resolving issues that involve functions not dependent on the exact  !

! location of the relocation center or centers.

j . Nor does the LIPA legislation offer a sound basis on which to termi. ,

i - nate hearings. Intervenors present the takeover as afelt accomp/t. but we [

!, believe that much needs to be resolved before any actual takeover can be  !

j effected. Thus termination of the hearings on this ground would be pre.

mature and unwise.

j Accordingly, the motion is denied.

! It is so ORDERED.

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' For the Commission

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John C. Hoyle  !

Acting Secretary of the

Commission I Dated at Washington, D.C.,

this 26th day of September 1986.  ;

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• chairmes leth wee not present for the aMrmathm of this Ordet. Had he been present he would have orProvedis

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Atomic Safety and I

i Licensing Appeal Boards issuances .'

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'j ATOMIC SAFETY AND LICENSING APPEAL PANEL l

Alen 5. Roosneel. Chairmen Dr. W. Reed Johnson Thomes S. Moore .

i Chrtetine N. KoN {$ (*

j - W Gary J. Edies Dr. Reginald L. Gotchy i I Howerd A.Wilber ).

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i Cite as 24 NRC 409 (1986) ALAB-444 l

UNITED STATES OF AMERICA l

NUCLEAR REGULATORY COMMISSION 1

. ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Gary J. Edles, Chairman Dr. Reginald L Gotchy Howard A. Weiber t In the Matter of Docket Nos. 50 250 OLA 1 50 251 OLA.1 (Vessel Flux Reduction) l FLORIDA POWER & LIGHT COMPANY

. (Turkey Point Nuclear Generating i Plant, Units 3 and 4) September 14,1944 I Upon conducting its sua sponte review of the Licensing floard deci.

slon that disposed of one of the two admitted contentions in this lleense amendment proceeding, the Appeal floard Onds no errors that warrant corrective action.

ATOMIC ENEltGY ACTI LICENNING I)ECISION (IMMEl)l ATE EFFECTIVENESS)

If a determination is made, pursuant to 42 U.S.C. 2239(a)(2)(A), that a proposed license amendment involves "no signincant hasards," the Com.

mission may issue the amendment and make it immediately effective not.

withstanding any request for a hearing. The hearing, however, may take place after issuance of the amendment. Alettorolttan lidimn Ca (Three l

Mlle Island Nuclear Station, Unit No.1), ALAll.807, 21 NRC 1895, i 1200 n.12 (1985).

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. 409

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APPEAL BOARDS: SUA SPONTE REVIEW When no appeals are taken from a reviewable licensing board decision, an appeal board will review that decision sua sponte. See Offshore /bwer Systems (Manufacturing License for Floating Nuclear Power Plants).

ALAll 689,16 NRC 887,890 91 & n.4 (1982).

RULES OF PRACI' ICE: APPELLATE REVIEW Appeal boards generally do not review licensing board determinations that do not constitute a fmal resolution on the merits. See Houston Light.

Ing d Ibwer Ca (South Texas Project, Units I and 2). ALAH 799,21 NRC 360,369 (1985).

MEMORANDUM AND ORDER On July 24,1986, the Licensing floard issued what it styled an " initial decision"(LDP 86 23,24 NRC 108) disposing of one of the two admitted contentions in this license amendment proceeding. The Board ruled in the applicant's favor on Contention (d), dealing with the formation of a steam film around the fuel rods.8 The Board's decision authotlied re.

quested amendments to the technical specifications for operating licenses for Units 3 and 4 at the Turkey Point facility.8 The lloard, however, retained jurisdiction over Contention (b), dealing with alleged shortcornings in one of the computer evaluation models, in order to obtain further information from the NRC staff concerning pro.

posed additions and corrections to the models for the emergency core cooling system. Earlier, the Hoard had relied on these models in summar.

ily disposing of Intervenors' Contention (b).s No appeal has been taken from the Board's deciolon within the period prescribed by the Commission's Rules of Practice.* We thus have the de.

81he onwt of thie steem fum to denned se the "departete from muslute hieling

• When the Alm te ettehbehed. there se a tedestum 6n the espeh6hty for the transfet of heat from the fuel tale, meth a tetule.

Ing large eastesee en elelJing temgwteente and a greater peubehility of sleiding demate See lip 89 29, 12 Nac Jan, ll)le (Ital) 8 Ihe moine er haring insteJed a peursel that the l= ente amendments lavolte s *no e*eninsent has.

eede' determineens potenene to 42 U s C. IllmWIJi Al if such deternunation to made the canmousan mer teoue en amendment and make et emmediately effeet#ee noteethetsniting any requeos for a hearing lhe heating howevet, per tebe ple6e aftet teemente of the amendment Metnippinee A4.ame ca (three bfde telend Nesine steene,ifnet Nis 11. Al All not,il NRC livl,12tsi n 11 ties 93 The commieehan folhimed that prisedute hete 4e led Res 1)6411984) 8 Are t itP ll.ls. Il Nilc et )l020 e 3,e 10 C l 11 2 ft) 410

1 .

cision before us for our customary sua sponte review.* On such reviews we have found no errors that warrant corrective action.'

l l LBP.86 23 is q/ firmed.

It is no ORDERED.

i l

POR THE APPEAL BOARD C. Jean Shoemaker

• Secretary lo Lb'J Appeal Board 6

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i Cite as 24 NRC 412 (1986) ALAB 847 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD 1

Adminletrative Judges:

Alan S. Mosenthal, Chairman

.i Gary J. Edles Noward A. Wilber 1

in the Matter of Docket No. 60 322 OL 3 (Emergency Planning)

LONG ISLAND LIGHTlHQ

, COMPANY (Shoreham Nuclear Power Station, Unit 1) September 19,1984 The Appeal llo.ud decides the remaining portions of the applicant's appeal of two Liccasing Iloard decisions in the emergency pianning phase of this operating license proceeding, L!)P 8512, 21 NRC 644 (1983), and LilP 85 31,22 NRC 410 (1985). The lloard remands two of the three istun appealed for further clarincation by the Licensing Ilostd, and reverses the Licensing floard's determination on the thhd.

DIENGENCY I,1 CENSE Pl.ANS: HEQUINDf ENT FOR OPENATING A nuclear power plant is not allowed to opernte at levels above nye percent of its rated power unless the NRC finds, in ucu rdance with 10 C.F.R. 30.4ha), that there is rusonable assurance that adequate measures for the protection of the public health and Wety can and will be taken.

Arnong other things, emergency response planning must make provhion for the care of permns removed from the plume errergency plann:ng

, rone (plume !!PZ) should circumstances necessitate an evact.ation.

412

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

ADJUDICATORY BOARDS: SCOPE OF REVIEW (OPERATING LICENSE PROCEEDING)

The Commission's regulations governing operating license proceedings generally limit an adjudicatory board's findings to the issues put in con-test by the parties.10 C.F.R. 2.760a. See also Pacific Gas and Electric Ca (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-728,17 NRC 777,807, review declined. CLI 83 32,18 NRC 1309 (1983).

LICENSING BOARD: SCOPE OF REVIEW (SUA SPONTE)

A licensing board may raise and resolve, sua sponte, "a serious safety, environmental, or common defense and security matter," should it deter-mine such a serious issue exists. Louisiana Power and Light Ca (Water.

ford Steam Electric Station, Unit 3), ALAB 732,17 NRC 1076,1112 (1983). It may do so, however, only after invoking certain special proce-dures. Cleveland Electric Illuminating Ca (Perry Nuclear Power Plant, Units I and 2), ALAB-675,15 NRC 1105,1115 (1982).

EMERGENCY PLANS: LICENSEE RESPONSIBILn'fES Both the Commission's regulations and planning guidance assign com-mand and control responsibilities to licensee personnel. Perhaps most im-portant, the initial determination of whether and when to alert public of-ficials to an emergency situation rests with the utility. 10 C.F.R. 50.47(b)(5); 10 C.F.R. Part 50, Appendix E,99 IV.D.1, IV.D.3.

E51ERGENCY PLANS: LICENSEE RESPONSIBILITIES Licensees have primacy responsibility for accident assessment, includ-ing the evaluation of potential risk to the public health and safety and the preparation of recommendations concerning protective measures. See

" Criteria for Preparation and Evs.luation of Radiological Emergency Re-sponse Plans and Preparedness in Support of Nuclear Power Plants,"

NUREG-0654/ FEMA REP 1 (Rev.1)(1980),9 I.}!.

EMERGENCY PLANS: LICENSEE RESPONSIBILITIES The NRC Incident Response Plan provides that a licensee "has the im-mediate and primary continuing responsibility for limiting the conse-quences of an incident at a nuclear power reactor." In fact, a licensee is

, empowered to take "whatever action is deemed necessary to limit the consequences to public health and safety, even if that action violates the 1

413  !

1 w

NRC license technical specifications." "NRC Incident Response Plan,"

. NUREG-0728, Rev.1 (1983) at 4. And utility personnel are responsible for determining what information is given to government officials. Cf Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1),

ALAB-697,16 NRC 1265,1269-70 (1982); id, ALAB-698,16 NRC 1290, 1312 13 (1982), aff'd la pertinent part. CLI-83-22,18 NRC 299, 310 (1983).

EMERGENCY PLANS: LICENSEE RESPONSIBILITIES The NRC Incident Response Plan expressly instructs licensees that

"[1]imiting the consequences to public health and safety should take clear precedence over limiting financial loss or adverse publicity." NUREG-

? 0728 at 4.

" EMERGENCY PLANS: NOTIFICATION REQUIREMENTS The Commission's regulations require that utilities establish a four-tier accident classification scheme. In the event of an emergency, licensees must advise government officials of the magnitude of the accident and offer recommendations on what protective measures should be taken. See '

77 ree Mile Island. ALAB-697,16 NRC at 1269-70.

EMERGENCY PLANS: STATE AND LOCAL GOVERNMENT i

RESPONSIBILITIES Emergency planning roles have always been assigned to reflect the duties and capabilities of the iudividual participants. Governmental enti-ties were given emergency response roles because they had the legal au-thority and responsibility for such response, not because the Commission

\

distrusted the objectivity of licensees. See 35 Fed. Reg. 19,567-68 (1970).

EMERGENCY PLANS: ROLE OF NRC STAFF The NRC staff has largely an aJvisory and monitoring role in emer-gency planning, althoegh it may, in some circumstances, also take direct action, such as making its own protective action recommendations. See

" Agency Procedures for the NRC Incident Response Plan," NUREG-~

0845 (1983) at II 12-II 13; NUREG-0728 at 4-6; Cf Three Mile Island, ALAB-698,16 NRC at 131213.

414 l'

EMERGENCY PLANS: LICENSEE RESPONSIBILITIES The regulations and applicable regulatory guidance effectively rebut the notion that utility officials must be categorically excluded frcm exer-cising any command and control emergency responsibilities.

EMERGENCY PLANS: CONTENT (DEFICIENCIES IN) 4

, Where compliance with each of the 16 express criteria of 10 C.F.R.

, . 50.47(b) is absent, the Commission may nevertheless issue an operating license if the applicant can demonstrate "that deficiencies in the plans are not significant for the plant in question, that adequate interim compensat-ing actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation." 10 C.F.R. 50.47(c)(1).

EMERGENCY PLANS: CONTENT (SUFFICIENCY)

Section 50.47(b)(1) of the Commission's regulations requires that offsite emergency response plans include an appropriate assignment of responsi-bilities to the licensee and state and local emergency response organiza-tions. Similarly, NUREG-0654, which is the principal emergency plan-ning guidance document prepared jointly by the NRC and the Federal Emergency Management Agency (FEMA), provides for the assignment of emergency response duties to the licensee and state and local organi-zations.

EMERGENCY PLANS: CONTENT (DEFICIENCIES IN)

Where, "for whatever reasor.," a particular jurisdiction has not com-pleted an emergency plan or some portion of it, an " applicant [may]

show that, because of other compensating factors, public health and 4

safety will be adequately protected because of other plans or evidence of preparedness." Union of Concerned Scientists, DPRM-83-1,17 NRC 719, 726 (1983). Cf Consolidated Edison Co. of New York (Indian Point, Unit No. 2), CLI-83-16,17 NRC 1006,1013 (1983).

EMERGENCY PLANS: CONTENT (DEFICIENCIES IN)

A utility plan cannot be deen.ed to have shortcomings simply because-a governmental body may perform various undescribed functions not re-quired by the regulations. Moreover, the sufficiency of " interim compen-  ;

satory actions" designed to accommodate for deficiencies such as the j lack of a state plan need not necessarily provide precisely the same level J

415

of protection that total correction of the deficiencies would offer. Indian Point. CLI-83-16,17 NRC at 1010. See also CLI-86-13, 24 NRC 22, 30 (1986).

APPEARANCES James N. Christman, Richmond, Virginia (with whom W. Taylor Reve-

, ley, III, Donald P. Irwin, Kathy E.B. McCleskey, and Scott D.

Matchett, Richmond, Virginia, were on the briefs), for the appli-cant Long Island Lighting Company.

Fabian G. Palomino, Albany, New York, Karla J. Letsche, Washington, D.C., Eugene R. Kelley, Hauppauge, New York, and Stephen B.

Lathsm, Riverhead, New York (with whom David A. Brownlee, Michael J. Lynch and Kenneth M. Argentieri, Pittsburgh, Pennsyl-vania, Herbert H. Brown and Lawrence Coe Lanpher, Washington, D.C., and Martin Bradley Ashare, Hauppauge, New York, were on the briefs), for the intervenors State of New York, Suffolk

_ , County, New York, and the Town of Southampton, New York.

Sherwin E. Turk and Bernard M. Bordenick for the Nuclear Regulatory Commission staff.

DECISION The Li ensing Board has rendered two partial initial decisions in the emergency planning phase of this operating license proceeding involving the Shoreham nuclear facility in Suffolk County, New York. Both deci-sions examined an emergency plan in which offsite emergency response procedures would be implemented by the Local Emergency Response Organization (LERO), a group composed of the applicant Long Island Lighting Company's (LILCO) personnel, federal agencies, and private contractors. In contrast with the typical emergency response plan, the Shoreham plan does not rely on county or state personnel.

In the first of its decisions, the Licensing Board resolved most of the contested issues in favor of LILCO. It also determined, however, that the applicant lacks the legal authority to implement material features of the plan, with the consequence that an emergency plan in conformity

. 416

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with NRC regulations cannot be carried out.1 In the second decision, the l Board addressed the remaining issues.8 These were primarily concerned

with the adequacy of the Nassau Veterans Memorial Coliseum as a re-ception or " relocation" center for the monitoring, decontamination and transferring to sheltering facilities of evacuees from the area surrounding the Shoreham facility in the event of an emergency. Although the appli-cant prevailed on most of those issues as well, the Board ended its deci-sion with the declaration that the applicant's emergency response plan is

" fatally defective." The bases of this declaration were: (1) the Board's determmation in its earlier decision that the applicant lacks the legal au-thority to implement its plan; and (2) the Board's belief that the opposi-tion of both the State of New York and Suffolk County to the plan "has created a situation where at any given time it is not known whether the

[p]lan would be workable."8 The applicant and the intervenors State of New York and Suffolk County took appeals from portions of both of these decisions.* With the parties' acquiescence, we separated for expedited review the applicant's appeal on the legal authority and related questions decided by the Board in its first decision. In ALAB-818, we affirmed the Licensing Board's conclusions on those questions.8 More particularly, we determined, first, that federallaw did not preempt those New York State statutes that pre-vented LILCO from implementing material aspects of its plan. Second, we concluded that LILCO had not demonstrated that its plan was ame-nable to ad hoc adoption by the appropriate governmental units in the event of an emergency (the so-called " realism" issue). Finally, we ruled that various traffic control actions ordinarily part of an evacuation plan but which LILCO lacked legal authority to undertake were material ele-ments of an adequate emergency response (the so-called " immateriality" issue).

Our affirmance rendered academic the other issues presented by the

! various appeals from the two Licensing Board decisions. In taking review of ALAB-818, however, the Commission deferred its consider-ation of LILCO's appeal until we completed our review of the appeals filed by the intervenors.8 As a consequence, we promptly took up, and

' LBP-85-12. 21 NRC 644 (1985) 8 LBP-85-31,22 NRC 410 (1985).'

• M at 431-

• In addmon, the Town of Southampton appealed frorn portions of the second decision

• 22 NRC 651 (1985).

• Comnussion order of December 19.1985 (unpublished).

I 417

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s resolved, that appeal.7 We generally rejected the intervenors' attack on -

the Licensing Board's resolution of a score of emergency planning mat-ters, and largely upheld the Board's determinations. However, we re-manded four issues to the Board for further proceedings.

To accord the Commission an opportunity to decide how it wished to proceed in light of our various determinations, we temporarily stayed further proceedings before the Licensing Board and annunced our in-tention to hold in abeyance. the three remaining issues raised by the

, . LILCO appeal, pending further instructions from the Commission.s Those issues involve (i) the monitoring of evacuees at the Nassau County Coliseum, (ii) an alleged conflict of interest by LILCO employees who i

occupy emergency planning roles, and (iii) the lack of a New York State emergency plan for Shoreham. In CLI-86-13, the Commission reversed our conclusions in ALAB-818 with respect to the " realism" and "imma-teriality" issues and remanded the proceedings to the Licensing Board

for further exploration.' The Commission determined that state and Ii county officials would be obligated to assist in the case of an emergency at Shoreham and that each would respond on a "best effort" basis. In the Commission's judgment, such response "would utilize the LILCO plan as the best source for emergency planning information and options."20 On remand, the Licensing Board must examine whether such response will adequately protect the public. The Commission also directed us to recon-sider our deferral of the three remaining issues.22 To assist our effort, we asked the parties to provide us with their views as to the effect on the appeal of recently passed resolutions by the

-l Nassau County Board of Supervisors.28 Those resolutions void the des-ignation of the Nassau County Coliseum as LILCO's relocation center and prohibit LILCO's use of facilities in Nassau County without prior approval by the Board of Supervisors. The intervenors responded that the resolutions provide additional bases for dismissing LILCO's appeal and affirming the Licensing Board's decision that the LILCO plan is de-

fective.28 LILCO and the NRC staff argued that the resolutions do not

• ALAB-832,23 NRC 135 (1986).

'Id at 14142.162 63.

• 24 NRC 22 (1986).

8814 at 31.

8 8 Id at 33.

is Order of July 28.1986 (unpubbshed).

88 views of suffolk County, the state of New York. and the Town of Southampton Concerning Effect of Nassau County Resolutions on LILCo*s Appeal of the AsLB's Concluding Partial Initial Decision (August II.1986).

7 418 i

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affect the issues currently before us and urged us simply to rule on LILCO's appeal."

l We have evaluated the applicant's appeal in light of the record, includ-i ing the parties' responses to our inquiry. As a threshold matter, we agree f

with LILCO and the staff that the appeal can be t-ken up now. On the merits, however, we find that we must remand two of the three issues for further clarification by the Licensing Board. We set forth our views in this regard in sections I and III. As explained in section II, we can nevertheless bring to a close litigation regarding the alleged conflict of interest. On that issue, we simply reverse the Licensmg Board's determi-nation.

i I. MONITORING OF EVACUEES i

A nuclear power plant shall not be allowed to operate at levels above five percent ofits rated power unless the NRC finds,'in accordance with 10 C.F.R. 50.47(a), that there is reasonable assurance that adequate meas-i, ures for the protection of the public health and safe:y can and will be taken. Among other things, emergency response planning must make provision for the care of persons removed from the plume emergency planning zone (plume EPZ) should circumstances necessitate an evacu-

' ation. LILCO's emergency response' plan provides for the monitoring, decontamination and sheltering of evacuees requiring such services. In reviewing the adequacy of LILCO's plan, the Licensing Board found:

LILCO has used an estimate of 20% of the population of the EPZ as the maximum

, number of persons who would require shelter in the event of an emergency at

Shoreham. . . . The maximum population of the EPZ is 160,000, thus LILCO's

.g planning is based on a maximum of 32.000 seeking shelter. LILCO did not justify how this number could be related to the number of persons who might seek moni-toring. The Board finds that the number of persons expected to seek shelter in the event of a disaster is not necessarily the same as the number of persons who might seek monitoring in the event of a radiological accident.

We accept LILCO's planning basis for the number of evacuees who might seek shelter, be processed through the relocation center and . . must thus be moni-tored. . . . The record is unclear as to how the Coliseum cocid 1 - -_4te the evacuees of the general populauon who will seek monitoring and processing, aside from those seeking shelter. We therefore find that LILCO's failure to plan for those

LILCO's Views on the ENect of the Nassou County Resolunons (August II 1986h NRC Stan Views on the Erects of Nassou County Board of Supervisors Resolunons Relanns to Nassau Cohseum (August II 1986h LILCO's It ply to the " views of SuRolk County, the State of New York, and the Town of Southampton Concernmg Erect of Nassau County Resolunons on LILCO's Appeal of the ASLB's Con-ciudas Partial inical Dectsson" (August 18. 1986).

1 o

419 I i

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of the general population who seek only tnonitoring and proces.ing constitutes a

. defect in the Plan.88 LILCO appeals from the Board's conclusion that, in addition to plan-ning for the number of evacuees who are likely to seek sheltering, LILCO must now estimate and plan for the number of evacuees who are -

likely to come to the Coliseum for radiological monitoring and decon-4 tamination alone. LILCO claims that the Board's decision must be re-

- versed because it addresses matters outside the scope of the issues admit-ted for litigation and imposes an obligation not justified by any relevant NRC emergency planning requirement or guidance. The NRC staff agrees with LILCO that the Board's determination falls outside the scope of the issues admitted for litigation. The intervenors support the Board's result.

For the following reasons, we return the matter to the Board so that it can consider in the first instance whether the issue was properly raised for litigation. First, the issue turns in part on the Licensing Board's inten-tion when reopening the record - a matter on which we have difficulty resolving the ambiguities in the record but on which the Licensing Board can obviously speak with knowledge. Second, because the issue

'- arose on appeal for the first time, the Licensing Board has not had an opportunity to address it. To help focus the issue on remand, we alert the Licensing Board to matters it should take into account when revisit-

! ing its earlier conclusion. We decline at this juncture to rule on LILCO's alternative argument that the obligation imposed by the Board runs afoul of applicable regulatory requirements.

The Commission's regulations governing operating license proceedings generally limit an adjudicatory board's findings to the issues put in con-test by the parties.88 The intervenors tendered a 177-page document set-ting forth almost 100 separate offsite emergency planning contentions.

Many of the contentions contained numerous subparts and all of them targeted alleged deficiencies in detail. In response to objections that the list of contentions was too long, the intervenors argued:

" LBP-85-31, 22 NRC at 417. See also ad. at 430 31.

" 10 CF.R. 2.760a. See also fac$c Gas and Electric Ca (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-728,17 NRC 777, 807, review derkned CLI-83-32.18 NRC 1309 (1983). A heensing

! board may nevertheless rane and resolve

• a senous safety, environmental, or common defense and secu-rity matter ** on its own. Imisiana Powr sad Light Ca (Waterford Steam Electnc station, Unit 3).

ALAB-732,17 NRC 1076. lil2 (1983). It may do so, however, only after invokmg certain special pro-cedures. Cleveland Electric Illsmanatat Ca (Perry Nuclear Power Plant. Units I and 2). ALAB-675,13 NRC 1105,1115 (1982) The Licensmg Board did not mvoke those procedures m this case and no party suggests that the matter of radiauon momtoring for those evacuees not seeking sheltenng was raised on s, the Board's own initiauve. The rssue thus had to be injected into the case - if at all - as part of t!e intervenors' contentions.

420 i

k a

b

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b

' The LILCO Plan is a lengthy, cotoples document which encompasses all aspects of offsite emergency planning. Intervenors have reviewed the Plan in its entirety, and have identified a large number of specific deficiencies . . . in detail so that the bases for the contentions (both legal and factual) are set forth as specifically as possible.8' Five items - Contentions 24.0, 24.P, 74, 75 and 77 - dealt with alleged deficiencies in connection with the relocation centers. Three items -

Contentions 16.I, 23.F and 76 - dealt with additional aspects of moni-toring and decontamination.as The Licensing Board admitted the five contentions dealing with relocation centers, but did not admit the three contentions dealing with monitoring and decontamination.28 In the usual case, we would simply examine the contentions as admit-

- '. ted to decide whether the Board's determination properly fell within the issues raised.80 In this case, however, LILCO's emergency plan changed significantly during the course of the litigation and the Licensing Board expressly reopened the proceedings for new hearings to address some but not all of those changes. Thus, the intervenors' original submission cannot serve as the exclusive focus of examination. And the Licensing Board is best situated to decide one question hotly contested on appeal

- i.e., whether the Board intended as part ofits reopening to revisit the issue of LILCO's plan for evacuees who did not seek sheltering. The Li-censing Board must now decide whether, in view of the evolution of the LILCO plan, the issue was reasonably embraced within the concerns presented for litigation.

The text of the proffered cor.tentions will provide a necessary starting point.82 As noted earlier, the intervenors submitted a comprehensive array of contentions touching in detail upon every aspect of LILCO's offsite emergency plan. As to alleged deficiencies in connection with re-location centers, Contention 24.0 argued essentially that a portion of the population would have no place to go because one.of the primary desig-nated centers - Suffolk Community College - was unavailable 8 Con-tention 74 alleged that two of the primary centers were impermissibly close to the boundary of the plume EPZ, while Contention 75 addressed the adequacy of the shelters.88 Contention 24.P claimed that LILCO had 8'See Memorandum Regard:ng Revised Emergency Plannmg Contentions at 4. attached to Letter from Karla J. Letsche to Licensing Board (July 26.1983).

8'See Revised Emergency Planning Contentions, at 27, 31 (Contention 16.!h 47. 5152 (Contention 23.F); $5. 66-67 (Contentions 24.o and P) 153-56 (Contentions 74. 75. 76. 77), attached to Letter from Karla J. Letsche to Ixensing Board (July 26,1983).

8' Special Preheanng Conference order of August 19.1983 (unpubbshed) at 7.13. 23.

8'See, eg., Phdadelpha Eterme Ca (Limenck Generstmg station. Units I and 2) ALAB.845. 24 NRC 220, 241 42 (1986) 88 The contentions are set out in an appenda to LBP 8512. 21 NRC at 975. 979,1020 21.

3:See ALAB.832,23 NRC at 157 asld at 157 58.

421

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1 e a no agreements with the American Red Cross (ARC) although it relied on the ARC to provide services at the relocation centers. And Conten-tion 77 challenged the sufficiency of certain equipment used to measure thyroid contamination. The intervenors argue that there is general lan-guage in the contentions that was intended to permit inclusion of the issue. Contention 24.0, for example, alleges a failure by LILCO to ar-

. range relocation centers for " anticipated evacuees." But, given both the breadth of, and level of detail in, the contentions, it may also be signifi-cant that the intervenors did not expressly challenge LILCO's alleged failure to estimate and plan for the number of evacuees who might need radiation monitoring and possible decontamination, even though they do ,

not seek to be sheltered.

The Board should also canvass the direct testimony submitted in sup-port of the contentions to help determine whether the matter was within the scope of the intervenors' concerns.s4 The intervenors seem to focus on the adequacy of arrangements for those evacuees who needed shelter.

We find no discussion of a deficiency in LILCO's ability to accommo-date evacuees who will need monitoring or decontamination but not sheltering. In fact, the only distinction among categories of evacuees set forth in the testimony was between "the potentially or actually contami-nated evacuees, and those who are not contaminated."88 The interve-nors' proposed fimdings of fact and conclusions of law broadly challenge the adequacy of the relocation centers but specifically argue only that LILCO must make arrangements for the entire population of the EPZ, i.e.,160,000 people.88 The Board must, of course, consider whether LILCO's change in plans affected the intervenors' ability to formulate their issues for litiga-tion. In this connection, we note that two principal functions are per-formed by relocation centers. First, reception center functions include the registration, monitoring and decontamination of evacuees. Second, congregate care functions include the temporary housing, feeding and providing of first aid for uncontaminated evacuees. These functions may be conducted at the same or separate facilities.8' As we explained in

• • See Direct Testimony of David Harris and Martin Mayer on Behalf of sunolk County Regarding Contentions 24.G. 24 K. 24.P. 73 and 75, fol. Tr. 9574. at 1012, 24 30 [hereafter. " Harris /Mayer Tenn.

many"}. Direct Testimony of Robert T. Kreilms on Behalf of suEolk County Regarding Contention 24 0 (March 2.1984k Direct Testimony of Deputy Chief Inspector Richard C. Roberts on Behalf of suffolk County Regarding Emergency Planning Contention 74 - Inappropnate Pronunity of Proposed Relocation Centers to the shoreham Plant (March 2.1984k and Revisions to the Direct Testimony of David Harns and Martin Mayer on Behalf of suffolk County Regardmg Contention 73. fol. Tr.14.870.

, lhe Kredmg and Roberts testimony was prerded but appears not to have been introduced into evidence.

" flarns/Mayer Testimony at 29 30.

88 suffolk County and state of New York Proposed Fmdmss of Fact and Conclusions of Law on Off.

site Emergency Planning. Volume I(october 26.1984) at 430 31.

Sac Afrulavit of Baldwin, et al. fol. Tr.15.991. at I.

422 l

e e ,

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. i ALAB-832, LILCO's original emergency plan designated five facilities located in Suffolk County to serve as relocation centers.88 Each facility

, was to provide both reception center and congregate care functions.

From the outset it was clear that there could be individuals who would

, need monitoring and decontamination services, even if they did not also

~

require sheltering. As the plan evolved, LILCO proposed to rely on sep-

. arate relocation facilities - one or more large reception centers, where all radiation monitoring and decontamination activities would take place, and 50 smaller shelters or congregate care centers.88 The Board _should determme whether these subsequent revisions in the number, locale and

- . function of the individual reception center and the congregate care cen-

_ ters raised new or unique concerns regarding the number of evacuees

~

who would seek monitoring but not sheltering.

l Under its revised approach, LILCO designated the Nassau Veterans

, Memorial Coliseum as its relocation or reception center, and the Board reopened the record "for the limited purpose of assessing the adequacy

. of LILCO's proffered evidence concerning the Nassau . . . Coliseum as a relocation center to be used in the event of an emergency at '

Shoreham."80 As the Board explained in a supplemental order:

1

-! De reopemng is limited in scope to [ Contention 24.O]. It does not extend to the other contentions in the proceeding which bear on the topic of relocation.

. . [A]n oral hearing is needed to resolve the contested issue in Contention 24.0 as to whether the designated relocation center, the Coliseum, is itself functionally adequate to serve as a relocation center for the anticipated general evacuees. 77e number of general evacuees that can be expected to use a relocation center has already been lingated and that subject will not be reheard. The Board will only consider evi-dence that goes pnmarily and directly to the question of whether the Coliseum is

, adequate for use as a relocation center.88 The Board's subsequent finding that LILCO had failed to demonstrate how many evacuees will seek monitoring but not sheltering, and how -

LILCO would provide for them, appears inconsistent with its exclusion of questions related to the number of " general evacuees" that can be ex-pected to use the relocation center. It is possible, of course, that the Board declined to relitigate LILCO's planning basis because it had al-88 23 NRC at 157-62.

88 See Cordaro, er sl. fol. Tr.14.707. at 15-16. 24-25; Tr.14.792-807.

88 Memorandum and order O. anting LILCo's Motion to Reopen Record Uanuary 28.1985) at 9 (un-pubhshed).

" e8 Memorandum and order (Reopemng of the Record) (May 6,1985) at 3-4 (unpublished) (ernphasis added).

423 i

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i ready adopted the intervenors' assertion that any monitoring and decon-tamination facility must have the capability of processing all 160,000 people living in the EPZ. If that constitutes the basis for its finding that LILCO's plan is deficient, it should state so explicitly.82 Finally, the Board must reexamine its conclusion in light of our deter-mination, in ALAB-832, that the reopened proceedings should have been -

expanded to permit exploration of additional matters associated with the suitability of the Coliseum itself. In remanding the proceedings to the Li-censing Board for additional evidentiary exploration, we observed that, although the relocation center contentions were cast in terms of lack of agreement evidencing permission for use of designated facilities as relo-cation centers, the intervenors' essential concern was whether those fa-cilities were adequate to fulfill their purpose.88 Because the intervenors' intent was to challenge the overall adequacy of the Coliseum, the re-opening should have addressed all matters pertinent to use of the Coli-scum in lieu of other relocation sites.84 We realize, of course, that LILCO must now modify its plans because the Coliseum will be unavail-

}

able as a reception center. Presumably the Board will need to reexamine

, the adequacy of any new facility selected by LILCO. In this connection, the Board should consider whether the change in facility itself bears on the question of the need to plan for evacuees who seek monitoring but not sheltering.

1 a

II. CONFLICT OF INTEREST Under LILCO's emergency plan, offsite emergency response proce-dures would be implemented by the Local Emergency Response Organi-zation (LERO), a group that, as noted above, includes LILCO employ-ees but does not include county or state personnel.' Contention 11 as-

serted that LILCO employees who would occupy command and control positions in the event of an emergency are not sufriciently independent t

as During the course of the reopened hearing the intervenors argued that the only issue previously hti-gated was the number of evacuees that would seek shelter. Tr.15.973. It appears that the number of evacuees hkely to need momtonng but not sheltenng was not actually htigated m the earlier stage. That would be immatenal if the issue should properly have been raised during the earher phase of the case when LILCo's planning basis was under review. The staff claims that the miervenors have failed to question LILCo's planning basis for any relocation center and have failed as well to htigate LILCo's general planning basis irrespective of the specific relocation center selected. See staff Bnef(November 21.19851 at 6 n.8. The staff concludes that "the reason for this failure is simply that the Intervenors had never previously perceived this issue to be within the scope of the admitted contentions." H. The Li- '

censmg Board appears to disagree but had no opportunity to address this argument directly.

j as 23 NRC at 162 a.lO4.

s' We decided, for caample, that problems ansang from the geographic location of the Cohseum sis-a-vis vanous portions of the EPZ should have been included in the reopened p.-G- Id at 16162.

424

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of LILCO and may experience a conflict between their obligation to the public and their loyalty to LILCO's financial and institutional interests.

Such conflict arguably might affect the manner in which they perform their emergency responsibilities.88 The crux of the intervenors' testimony was:

Individuals employed by a utility are simply too close to the source of the problem

, to maintain the objectivity and open-mindedness necessary to manage and control

, the response to an emergency involving a nuclear power plant. Utility employees

, could serve a valuable function as advisers in emergencies, since they are familiar with the commercial nuclear power systems. But this same familianty leads to inevi-table biases and mind sets that can lead to ineffective or unworkable emergency re-sponses.

aaaa

. LILCO employees in command and control positions also lack objectivity in the roles assigned to them as LERO officials. By definition, objectivity requires that facts and conditions are received and dealt with without distortion by personal feel-ings, prejudices, or interpretations. Yet facts and conditions surroundmg a radiologi-cal emergency at Shoreham necessarily impact the future existence, well being.

profit and pubhc perception of LILCO and LILCO's management. LILCO manage-ment level employees cannot help but interpret, judge and feel about those facts arid conditions, at least in part, according to their positions in the company. Their rela-tionship with LILCO, their employer, fundamentally and unavoidably compromises their ability to act objectively in the command and control functions assigned to them in the LILCO plan.8' Apparently recogniziag the potential for some conflict of interest, LILCO's witnesses testified that the emergency plan was structured to minimize the effect of individual biases or beli:fs on the decisional proc-ess.a7 Among other things, no personnel holding command and control

, positions will have operational responsibilities with respect to Shoreham; U.S. Department of Energy personnel will be an integral part of the 88 The full teat of Contention it was:

The LILCO employees in command and control positions under the LILCO Plan may experi-ence a confhet between LILCO's fmancial and institunonal interest and the public's interest, which may substantially hamper their abihty to perform the functions assigned to them in a manner that wd! result in adequate protection of the public. The Intervenors contend that LILCO employees wdl have a strong incentive to mimmire the pubhe's percepuon of the potential or actual danger involved in a radiological emergency m order to avoid engendenng pubhc or LILCO shareholder disapproval of LILCO, or anti-Shoreham sentiment. T hus, for eaample, they may not recommend an appropnate protecuve action in a prompt manner because to do so would be contrary to LILCO's financial interest in mamtammg a public perception that shoreham is not a source of danger. LILCO has faded to insntute apprornate measures to ensure the mdependence of LERO personnel. Accordingly, there is no assurance that correct and appropnate command and control decissor. wdl be made by LILCO employees.

See LDP.8512. 21 NRC at 964.

" Purcell, er et fol. Tr.10,727 at 1211 8' Cordaro, et sL fol. Tr.10.196, at !!.20.

425

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+

emergency response organization; and procedures and protective actions

-will be established in advance.88 The principal advisor on protective ac-tions, i.e., the Radiation Health Coordinator, is a. consultant and not a LILCO employee 88 A training program is used to reinforce the primacy

of public protection.*8 An NRC staff witness testified that the Shoreham i emergency response organization will function adequately.48

. The Licensing Board essentially adopted the intervenors' position. The

Board indicated that the regulations and Commission guidance "contem.

plate that command and control decisions will be made by officials of

{- State and local governments during radiological emergencies."*8 It found that LILCO had failed to demonstrate that its plan "gives a result comparable to that contemplated by the regulations."*8 g -

We conclude that the Board erred in holding that the LILCO plan

• runs afoul of the Commission's regulatory requirements. Because we be-lieve that the Board has misread the Commission's regulations and regu-latory guidance, we find it unnecessary in reaching our decision to delve into the psychology of human response which undergirded much of the evidence of record. Moreover, developments since the issuance of the

, Licensing Board's decision make it clear that the key. aspect of the LILCO plan found objectionable by the Board - i.e., the exercise of decisional responsibility essentially by individuals with ties to the utility

- will not be a feature of any plan likely to be implemented.

! A. Reduced to essentials, the Board determined that the Commis-

j. sion's regulations require the type of independence that can result only when decisionmakers have no association with a utility; hence. LILCO's '

i l plan is inherently incapable of providing public protection comparable to that which would be offered if governmental officials were to partici-i pate. The Licensing Board, however, has misconstrued the regulatory re-i quirements imposed by the Commission.

The conclusion that LILCO's plan is inherently flawed.because it

' places important responsibilities in the hands of the utility runs counter to the entire emergency planning framework. Both the regulations and  !

[

pertinent planning guidance already assign command and control respon-sibilities to licensee personnel.** Perhaps most important, the initial de- ,

,t asId at 28 33.

L '* Id at 14.

l ** /d at 29.

r " schwartz. fol. Tr.15.143, at 2 4 I j *8 t.BP.8512. 21 NRC at 68&

~

lbud

(- "The intervenor witnesses dermed " command and control" as the " authoritative direction of activites designed to mitigate the emergency"; command and control embraces all those individuals who are expected to play some part in emplementing the emergency contingency plans . ." Purcell, et et fol.

j Tr.10,727. at 6 7.

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. termination of whether and when to alert public officials to an emer-

- gency situation rests with the utility,45 Likewise, licensees have primary responsibility for accident assess-ment, including the evaluation of potential risk to the public health and

safety and the preparation of recommendations concerning protective measures.45 The NRC Incident Response Plan, prepared by the Office of

Inspection and Enforcement, similarly provides that a licensee "has the

~ '

, immediate and primary continuing responsibility for limiting the conse-

. quences of an incident at a nuclear power reactor." In fact, a licensee is

- empowered to take "whatever action is deemed necessary to limit the

~

consequences to public health and safety, even if that action violates the NRC license technical specifications."** And utility personnel are re-sponsible for determining what information is given to government offi-cials.4e The Board has not explained how these critical roles differ in any material respect from the duties it believes can properly be assigned only to governmental officials.

At the hearing, the intervenors advanced the argument that telling the public that an accident occurred is not as significant as advising them that the accident resulted in radioactive releases that warrant protective action.** But they did not explain the present significance of this distine-tion, and we perceive none. The regulations, after all, require that utili-ties establish a four-tier accident classification scheme. In the event of an emergency, licensees must advise government officials of the magnitude of the accident and offer recommendations on what protective measures should be taken.50 In our view, these obligations are tantamo'.mt to re-quiring a licensee to inform the public that certain protective action is required. The intervenor witnesses conceded as much, noting that any conflict of interest could equally affect such utility recommendations.58

• • 10 C.F R. 50 47(b)(5); 10 C.F R. Part 50, Appendia E, ilIV.D 1 IV.D.3

• • See "Cntena for Preparation and Evaluation of Radiological Emergency Response Plans and Pre-paredness in support of Nuclear Power Plants" NUREG-0654/ FEMA. REP.I (Rev.1) (1950), ll H

, [hereafter "NUREo4654").

""NRC Incident Response Plan," NUREG4728, Rev. I (1983) at 4 [hereafter, "NUREG4728"). The Incxient Response Plan empressly takes into account the potential for confhet of mterest by mstructmg hcensees that "[1)mitmg the consequences to pubhc health and safety should take clear precedence over hmhmg rmancial loss or adverse pubhcity." Ibid

• e cf y,rmpobrem Edsson Ca (Three Mile Island Nuclear station, Unit No.1). ALAB-697,16 NRC 1265, 1269.70 (1982);id, ALAB-698,16 NRC 129061312-13 (1982k eff'd sa penness part. CLI-83 22,18 NRC 299, 310 (1983).

s ** Purcell, et at fol. Tr.10,727, at 25 27.

• • See TArce Mile Island. ALAB-697,16 NRC 1269-70.

8 8 Purcell, et et fol. Tr.10,727, at 26.

427

i-The intervenors also contended that the Commission allows licensees to exercise certain emergency response functions only because ultimate

decisional responsibility will be in the hands of government officials; the

' intervenors claimed, in effect, that the Commission deliberately estab-lished a system of" checks and balances."an They offered no evidence to

' support their theory, however, and we find none. To the contrary, the

' historical evidence reveals that emergency planning roles have always been assigned to reflect the duties and capabilities of the individual par-ticipants. Governmental entities were given emergency response roles be-cause they had the legal authority and responsibility for such response,88 not because th : Commission distrusted the objectivity of licensees.84 In our view, the regulations and applicable regulatory guidance effectively rebut the notion that utility officials must be categorically excluded from exercising any command and control responsibilities.88 B. We also find that command and control authority of the type found objectionabic by the Board is not likely to rest exclusively in the i hands of the utility. Under the LILCO plan as proposed, the company is to undertake both those responsibilities ordinarily assigned to a licensee in case of an emergency and (in cooperation with DOE and private con.

' ' tractors) those that would normally fall to state or local government offi-cials. Although the Board's decision is not entirely free of ambiguity, we interpret it to require decisional independence only as to those functions typically performed by governmental units.se As we noted in ALAB.

818, however, New York State law prohibits private companies such as LILCO from performing certain functions in that latter category.87 Thus, any plan that might eventually receive Commission approval must necessarily include individuals not operating under LILCO's aegis.

LILCO argued during an earlier phase of this litigation that state or local officials would respond in case of a genuine emergency. We were unprepared to accept that argument because no response ~ plan involving

" Tr.14755.

88See 35 Fed. Reg. 19,567-68 (1970).

• • The Commissirm could have assigned such responsibihues to the NRC staff. Instead. the staff has

' largely an advuory and monitoring role, although it may, in some circumstances, also take direct action.

such as making its own protecuve action recommendations. See " Agency Procedures for the NRC inci-dent Response Plan." NUREG4845 (1983) at II.12.II-13, NUREo4728 at u Cf Three Mde Islead.

1 ALAB-698,16 NRC at 1312-13.

< Escept in one respect, the Licensing Board did not rmd that the particular individuals actually as- i

} signed to LERo would be unable to perform their jobs properly. (With regard to that exception, the staft's witness admitted that one LERo official espected to check with LILCO management before l 1

making a key decision, that individual, however, a no longer with the company.) LBP 8512,21 NRC at 682. Rather, its determmation hmged on its behef that any individual aflihated with LILCO would be inherently subject to an unacceptable con!het of interest.

i ' ** The lack of independence challenged in Contention 11 is hmited to LERo personnel.

av 22 NRC at 660.

i 428  !

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state or county officials had been submitted for review on the record and the LILCO plan was too complicated for ad hoc adoption by govern-ment officials in the event of an emergency.58 However, in reversing that portion of ALAB-818 dealing with the so-called " realism" and "im-materiality" issues, the Commission was prepared to assume that state and county officials would participate in emergency response on a "best effort" basis by relying on the LILCO plan as a source of emergency planning information and options.88 In such circumstances, individuals n not affiliated with LILCO, such as state and local officials, will presum-I' ably be involved in those discretionary command and control determina-tions normally the province of government and which the Licensing

- Board found to be subject to potential conflict ofinterest.

. The Commission has remanded the proceeding to the Licensing Board

- so it can determine whether the "best effort" government response will

. be adequate to protect the public. This matter will be subject to further exploration. What seems clear from the Commission's remand, however, is that any plan ultimately approved must involve some form of govern-mental participation. In the circumstances, the intervenors' concerns over a possible conflict of interest, and the Board's determination in that regard, become largely academic.

4, l

j IIL LACK OF A STATE EMERGENCY PLAN 1

The procedure and criteria for evaluating the acceptability of a facili-ty's emergency response planning and the minimum content of such plan-j ning are set out in 10 C.F.R. 50.47 and Appendix E to 10 C.F.R. Part 50.

Where compliance with each of the 16 express criteria of 10 C.F.R.

, 50.47(b) is absent, the Commission may nevertheless issue an operating

> license if the applicant can demonstrate "that deficiencies in the plans are not significant for the plant in question, that adequate interim compensat-ing actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation."80

- Section 50.47(b)(1) requires that offsite emergency response plans in-clude an appropriate assignment of responsibilities to the licensee and state and local emergency response organizations. Similarly, NUREG-0654, which is the principal emergency planning guidance document pre-pared jointly by the NRC and the Federal Emergency Management

• • Id. at 674-76.

• • CLI EI). 24 NRC at 3L The Commnaion also seaumed (as we had earher found) that LILCo is prohibited from performms certam governmental functions.14 at 30w31.

** 10 C F R. 50 47(cX t).

429 i

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j Agency (FEMA),e provides for the assignment of emergency response duties to the licensee and state and local organizations. Ordinarily, the State of New York itself would perform four functions: (1) dose projec-tion based on release data communicated to State officials; (2) sampling

} in the 50-mile ingestion pathway emergency planning zone; (3) interdic-

, tion of contaminated foods; and (4) issuance of protective action recom-mendations via the radio and local emergency broadcast network.88 The -

l'

~ State does not propose to perform these functions for the Shoreham re-actor, however, because it opposes issuance of.an operating license. The intervenors assert that there can thus be no compliance with the require-ments of 10 C.F.R. 50.47(a)(2) or (b), or NUREG 0654, insofar as j -

Shoreham is concerned.ea The NRC staff agrees.

In approaching the matter, the Board explicitly distinguished between LILCO's authority under state or local law to take certain actions and its

{ capability for implementing its plan. The Board separately determined l .

that LILCO lacked the legal authority to undertake certain of its pro-posed actions but wished to examine "whether the Plan was adequate, j within the regulatory requirements, aside from Applicant's authority to perform the operation."84 From this perspective, it decided that LILCO

, could not comply with NRC regulations.

Its decision rested on two grounds. First, it construed the Commis-sion's regulations and NUREG-0654 as foreclosing a finding that an ade-quate emergency response can be assured where governmental authori-1 ties fail to participate in planning or to commit themselves to respond in the event of an emergency. Specifically, the Board observed that

}~

"NRC's regulations and guidance are founded on a fundamental assump-tion that there will be an integrated approach to emergency planning among State and local governments and utilities."es It determitted, ivi - i

' this connection, that the dispensation contained in section 50.47(c)(1) -

i allowing plant operation in the absence of strict adherence to all the re-

i. quirements of 10 C.F.R. 50.47(b) where an applicant can demonstrate that compensating actions can be taken - was not intended to cover a j '8 See sspre note 46.

en Cordaro and Weismantle, fol. Tr.13.899, at 6-7 es The full test of the intervenors' content;on 92 ts:

i

{ There is no New York State emergency plan to deal with an emergency at the shorehant plant before this Board. (Scr Plan. Attach.1.4.2.) In addition. the LILCO Plan faals to provide for coords, 4 nation of LILCo's emergency response with that of the state of New York (assuming arguesda such a response would be forthcoming). (See FEh8A Report at IJ la the absence of a state emer.

i ' gency plan for shoreham, there can be no finding of comphance with 10 CF.R. H 30.47(a)(2).

j 30 47(b). of NURE0454 H I E. I F. I.H or IL d See LBP 8512. 21 NRC at 1024 (footnote onutted).

• • 14 se 649.

• • /d at 885.

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4 situation where governmental authorities refused to participate at all in emergency planning. The Board recognized that NUREG-0654 permits a i finding that an adequate state of emergency preparedness exists if weak.

nesses in one organization are identified and compensated for by another i organization. But it concluded that such weaknesses had to exist only in 4

discrete elements of the implementing guidance and not result from an absence of governmental support.as Second, the Board found that the public health and safety could not in L any event be as well protected by LILCO acting alone as it could.if LILCO acted in concert with governmental authorities. It nonetheless I acknowledged that LILCO has the capability to perform the four spe-l cific tasks that have been identified as state functions."

< We agree with the Licensing Board that, in terms, LILCO cannot sat-isfy section 50.47(b) or conform to the guidance in NUREG-0654. But in i CLI.86-13, issued after the Board reached its decision under review here,

< the Commission expressly determined, in the context of reviewing LILCO's overall proposal, that a utility plan prepared without any gov.

, ernmental cooperation might pass muster under 10 C.F.R. 50.47(c).es In other words, contrary to the Board's determination, the lack of any co-

! ordination with the state does not preclude LILCO from attempting to 1

. demonstrate that it can meet the requirements of 10 C.F.R. 50.47(c)(1).

Nor does it prevent the Commission from making the requisite finding 7 i i

pursuant to 10 C.F.R. 50.47(a) that there is reasonable assurance that i

adequate protective measures can and will be taken in the event of a ra-j diological emergency. As a consequence, the Licensing Board's determi-4 nation cannot stand.

We believe that a remand is called for here so that the Licensing Board may determine anew whether LILCO's plan is satisfactory insofar i as it relates to the fulfillment of the four state functions. On this score, ,

I we note that the Board did not identify any specific defec_t in LILCO's j plan to substitute for state participation. Indeed, it indicated that LILCO has the capability to perform adequately each of the four functions that would be performed by the state if it were to participate. The Board re-jected the LILCO alternative because it believed both that the State "Id at 884 "14 at 882 84.

" 24 NRC at 29. The Commnuon's pronouncement in this regard is consistent with its earhet otmerva.

tions. 5er. a g. l'eaps of Coscreed .5caraturs DPRM 831.17 NRC 719. 72e (1983) twhere. **for what.

4 ever reason." a particular jurisdiction has not completed a plan or some portion of st. an "apphcant j [may) show that, because of other competnating factors. pubhc health and safety will be adequately pro-i tected because of c'ther plans or evidence of preparedness"). Cf Conned.ard E4spe Ca of.%ew rork (Indian Point. Umt No. 21. CLI 8316.17 NRC 1006.1013 (1983)(Commission endorses a plan under

, which the state of New York and a utshty took over and performed the functions that would normally -

j be performed by the local emergency response organization).

I j 431

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d might do things above and beyond the four functions addressed in the LILCO plan and that the government entities acting together with J_ LILCO could somehow do the job better than LILCO acting alone. But i

it did not find it necessary to specify precisely how LILCO's plan was

. deficient, or how the state's participation would make it better, in view l ofits primary conclusion that LILCO could not comply with 10 C.F.R.

c 1,

50.47(c) and NUREG-0654 - the conclusion later specifically rejected i- by the Commission.

The Board should now revisit its earlier decision in light of the Com-

" mission's determination that the lack of state cooperation does not per se

{ render LILCO's plan inadequate. In this regard, the Board must take J

into account that the Commission's regulations establish the regulatory j

requirements. Contrary to the Board's apparent earlier belief, a utility i plan cannot be deemed to'have shortcomings simply because a govern-j .

mental body may perform various undescribed functions not required by i

I the regulations. Moreover, the sufficiency of " interim compensatory ac-tions" designed to accommodate for deficiencies such as the lack of a j

i state plan need not necessarily provide precisely the same level of pro-tection that i' total correction of the deficiencies would offer.se On remand, the Licensing Board shall reexamine whether there are identifia-

} ble deficiencies in LILCO's ability to fulfill the four state functions so as

] to render the LILCO plan inadequate. If, however, the Board continues to believe that the insufficiencies in LILCO's plan result solely from

]( either (i) LILCO's inability to do things not required by the regulations, j

or (ii) the State's capacity to provide a level of safety beyond that con-i sidered adequate, it must find that LILCO has prevailed on Contention l 92.

i I,

i 1,

f f "leafese Point. CLI U 16.17 NRC at tola See alm CLIhl3. 24 NRC et 30 ("[W)e might look favor.

i ably on the LILCO plan if there was reawmable assurance that it was capable of achemg done reduc.

J tions in the event of an accident that are generally comparable to what might be accomphthed with povernment coopershon").

i 432 i

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1, l

f The Licensing Board's disposition of the three issues raised by LILCO on appeal in this phase of the proceeding is reversed. The proceeding is remanded so that the Licensing Board may reconsider its decision re-garding the monitoring of evacuees and the lack of a New York State plan, in accordance with this opinion.

It is so ORDERED.

FOR THE APPEAL BOARD

<. C. Jean Shoemaker Secretary to the Appeal Board j ,

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Cite as 24 NRC 434 (1986) ALAB-848 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

d Christine N. Kohl, Chairman Dr. Reginald L Gotchy Noward A. Wilber in the Matter of Docket Nos. 50-250-OLA 3 50-251-OLA 3 (Increased Fuel Enrichment)

FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Plant, Units 3 and 4) September 24,1986 Upon conducting its sua sponte review, the Appeal Board affirms the Licensing Board's memorandum and order that summarily disposed of the only contention admitted for litigation in this operating license amendment proceeding.

APPEAL BOARDS: SUA SPONTE REVIEW

- When no appeals are taken from a reviewable licensing board decision, an appeal board will review that decision sua sponte. See Florida Power &

Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

ALAB-846,24 NRC 409 (1986).

TECIINICAL ISSUES DISCUSSED Neutron multiplication factor (k.n);

Optimum moderation.

434

i s

t i

i

.l, MEMORANDUM AND ORDER On August 25, 1986, the Licensing Board issued a memorandum and order granting the motion of licensee Florida Power & Light Company for sumenary disposition of the only contention admitted for litigation in this operating license amendment proceeding. See LBP-86-27, 24 NRC

! 255. Consequently, the Board also termmated the proceeding.

No appeals have been filed from either LBP 86-27 or the Licensing Board's Memorandum and Order of September 24,1985 (unpublished),

- which modified somewhat the litigated contention. As is our practice, we have thus reviewed the Board's action sua sponte. See Florida Ptnwer d l Light Ca (Turkey Point Nuclear Generating ' Plant, Units 3 and 4),

ALAB-846,24 NRC 409 (1986).

The license amendments here at issue will permit the storage of fuel of increased enrichment in both the new and spent fuel storage areas, and will add another neutron multiplication factor (ken) limit on the storage of new fuel in the event of an " optimum moderation" condition.8 The Licensing Board stressed that the amendments are consistent with the pertment NRC regulations and staff guidance for new and spent fuel storage. LBP 86 27,24 NRC at 259.8 That guidance assumes the exist-ence of several uncertainties and has a number of built in conservatisms.

Id. at 259-60. Our sua sponte review has disclosed no reasonable basis for i overturning the Licensing Board's conclusion that the k,n limits for the Turkey Point new and spent fuel storage areas - and thus the staff's acceptance criteria - provide adequate protection for the public health and safety.

?

k l s Por a shacussion of k a. cnticahty, and optimum moderation, m genero#p Comssaiers /bwer Ca (Big

! Rock Point Nuclear Planth ALAB 725,17 NRC $62,564 a.2. 565 (1983).

8 As the Licensing Board emplemed, the seaN's accepeance entenon for the storage of new fuel under nooded condsucas is a k., of 495, and is E98 under optunum moderation. The entenon for spent fuel in nooded conditions with unboreted water is 0.95. LDP 84 27, 24 NRC at 239. The crincahty analysis performed by hcenese, supplemented by its response to stan questions, shows that k, eof stored new fuel for the conditions authonsed by the hcense amendsnents sought here would be approumately 0.925, well within the sesR's cntena. Cnticahty Analysis of the Turkey Point Plants Units 3 & 4 Storage Racks with lacreened Ennchement (February 1964) at it, attached to Letter from J.W. Wilhamn. Jr., to Darrell O. Emenhut (Apnl 4,1964K The analysis also showed that k , would not esceed the stan ente-t non dunas the planned storage of spent fuel. M at 10L16. (It is not clear whether this enticahty analysis

! or the seaN's september 5,1984. Safety Evaluation was submitted to the Licensing Board in connection with its consideration of these particular license amendments Both documents, however, have been pub-licly available since 1984.)

435 i

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LBP-86-27 is affirmed.

It is so ORDERED.

FOR TIIE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board 4

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c .

Atomic Saiety and Licensing

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Boards issuances e s.

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l ATOMIC SAFETY AND LICENSING BOARD PANEL i., ' .

O B. Paul Cotter,

• Chairman dm\ '  !

Robert M. Lazo, 'Vice Chairman (Executive) , lac.

Frederick J. Shon, 'Vice Chairman (Technical) c i..

Dr. George C. Anderson James P. Gleason Dr. Linda W. Uttle , i ' ~ .4 Charles Bechhoefer* Herbert Grossman* Dr. Emmoth A. Luebke' 'W. ,- ,

Peter B. Bloch* Dr. Cadet H. Hand. Jr. Dr. Kenneth A. McCollom i 4

Lawrence Brenner* Jerry Harbour

• Morton B. Margulies* i ';

Glenn O. Bright' Dr. David L. Hetrick Gary L. Milhollin 4< % -.

Dr. A. Dixon Callihan Emest E. Hill Marshall E. Miller j; Q't)i M *,

James H. Carpenter' Dr. Frank F. Hooper Dr. Peter A. Morris'  ; 1 I Hugh K. Clark Helen F. Hoyt* Dr. Oscar H. Paris' M.

Dr. Richard F. Cole

• Elizabeth B. Johnson Dr. David R. Schink i ,

Dr. Michael A. Duggan Dr. Walter H. Jordan . Ivan W. Smith * '--

James L. Kelley' Dr. George A. Ferguson 1 Dr. Martin J. Steindler Dr. Harry Foreman Jerry R. Kline' Dr. Quentin J. Stober 9 Dr. James C. Lamb Ill Seymour Wenner N . -M, ,=

Richard F. Foster John H Frye lin' Gustave A. Linenberger' I Sheldon J. Wolfe' l' v

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• Permanent panel members

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Cite as 24 NRC 437 (1986) LBP 86-30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

~

Before Administrative Judges:

Sheldon J. Wolfe, Chairman Emmoth A. Luebke Jerry Harbour l

In the Matter of Docket Nos. 50-443-OL 1 50-444 OL-1

. (ASLBP No. 82-471-02 OL)

. (Onsite Emergency Planning and Safety issues)

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et s/.

(Seabrook Station, Units 1 and 2) September 15,1986 The Licensing Board partially denies and partially grants Applicants' motion for summary disposition of an intervenor's contention and rules that written testimony be presented upon the surviving issue.

RULES OF PRACTICE:

SUMMARY

DISPOSITION If a motion for summary disposition is filed shortly before the hearing is to commence and the responder does not complain that it would be required to divert substantial resources from the hearing in order to re-spond adequately, and, in fact, does file a response, the Licensing Board is not called upon to consider whether to summarily dismiss the motion.

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l RULES OF PRACrlCE:

SUMMARY

DISPOSITION Section 2.749(a) of 10 C.F.R. only permits a response to new facts and arguments presented in a statement filed in support of a motion for sum-mary disposition.

RULES OF PRACTICE:

SUMMARY

DISPOSITION While it is the movant, not the opposing party, which has the burden of showing the absence of a genuine issue as to any material fact, if the motion for summary disposition is properly supported, the opposition may not rest upon mere aHegations or denials; rather, the answer must set forth specific facts showing that there is a genuine issue of fact.

- Clercland Electric Fluminating Ca (Perry Nuclear Power Plant, Units 1 and 2), ALAD-443, 6 NRC 741, 753 (1977); Virginia Electric and Power Ca (North Anna Power Station, Units I and 2), ALAB-584,11 NRC 451, 453 (1980).

RULES OF PRACTICE: BRIEFS Submissions to the licensing board must be complete and the board will not, and cannot be expected to, search for information incompletely given, or referenced, by any party.

TECllNICAL ISSUES DISCUSSED Detailed Control Room Design Review Safety Parameter Display System.

MEMORANDUM AND ORDER (Denying in Part and Granting in Part Applicants' Motion for Summary Disposition of SAPL's Supplemental Contention 6)

Memorandum

1. BACKGROUND in the Memorandum and Order (M&O) of September 13,1982, LDP.

82 76,16 NRC 1029,1040-41, the Board had admitted the State of New llampshire (Nil) Contention 10, and, inasmuch as the Seacoast Anti-Pol-lution League (SAPL) had joined in and adopted as its own Contention Nil 10 and the basis therefor, at page 1083 the lloyt Board permitted

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. SAPL to participate as a joint intervenor. In the M&O of July 21, 1986, LBP 86 22,24 NRC 103, We Wolfe Board granted NIPS: motion to with-draw its. Contention 10 but brdered that that contentbcl oe converted to and replaced by SAPL Suppiemental Contention 6, which wcui,1 reflect the identical wording and basis of former Contention Nil 10.

. On Tuly 25,1986, Applicants filed a motion for purnmary dispositicn of

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SAPl/s Supplemental Contention 6 (formerly Contentian Nil.10) and on 1 July 28 F.!cd a statement of material facts not in dispute. On August 4, C - SAPL filed a response opposing Appde:ab' motion. On August 18, the Staff responded in support of the mcWn: far summary disposition, and on August 28,1986, SAPL filed an answer to the Staff's response.

IL DISCUS!pON

• SAPL's Supplemerital Contention 6 reads as follows:

"Ihe Scabrmk Sta' ion control room design does not comply with general enteria 19 throug's 22 end !9 CF.R. Part SC, Appendia A, and NUREG-0737, item 1.D 1 and I.D.2 The basis of this contention is to ensure that displays xid controls added to the control room after the Detailed Control Room Design Review do not increase the potential for operator error, It is c-itical at Seabroote As a threshold matter, SAN argued in its responw of August 4,1986, that Apphcants' mo' ion should be demed as tems untarta fy filed because the lloyt IMard's M&o of bepter. ert 13,190. at page i 1093 prescnbed a dhe date of February 12, 1983, for the rahng of motions for sumtrary dapoution.

However, the short of the mat er is that. en of February 12,1983. Nil.10 m as not are for sommary dispositum in terponnes to the 4pphcants' and the staff *a interrogatones simultanecyJy fBed on Jank-ary 17,1983. NH noted tN: the Apphcants had neither performed a Deniled Coevos Room Dearn i Review (DCRDR) as reqwed by ID.I of NUREo4737 por design 4 a safety Parameter Display system (sPDs) as reqmred try I.D.2 of NUREo4737. Even as of April 10, 1984, in supplementing r*r response to Appheants' interrogatone*. Nil stated that the DCRDR had not been completed and that with respect to the sPDs,6n the complete absence of any documentaten of comphance. Appheants ist not comphed with 1D 2 of NUREo4737. h4creover, as explicated in the M&O of August 14, 1986 -

(unp*bhshed), as of September 9, n a t$. when the Board (the Wolfe Board) was appointed to preside over ell onsite emergency plannmg and safety ir ues, as a tuccessor on such issues and as an independent ,

Boara, we could recevnader upon our own moue h rishngs by the previous Board. smce Nil.10, a safety j issue. was not ripe for summary dispoution, we ncra rule that Apphcants did not have to Ale a motion for summary disposition by February 12, 1983, and thus their instant motion is not untimely. Indeed. ,

since we did not na a time for the Ghng # nutions for summary disposition in our Mao of July 2$.

1986 (LDP.86 24,24 NAC 132) at any tin,e therealtu any party could Gle such a motion, subject & 'he condition in 10 CF.R.12.749(a) smcs 5APL Cd not comp 2 that et would be rewired to overt i substantial resources from the heanns in order to respano adequatdy to Apphcants' mot on anu. in fact, I

. dd *espond to the motion, we are not called upra to consider whether to summanly dismiss the rm toon.

In its answer of Aug.us 28. although noting sna' .he staff's responer of August 18 fa sei' ti address the sLnehness issue, sAFl. proceeded 'o auvance arguments beyond te ne presented ln .'s re ponse of I August 4. The presentation or additim,al arguments was improper arJ ae will not conseer such adde.

tional arguments because 4 Ua9(a) only permits a response to new facts and arguments presen6;d in any statement Gled 6s' support of a snotion for summary disposition.

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that the accident monitoring and Control room be the optimum because of the difficulties inherent in carrying out protective actions for the population in the immediate vicinity of the plant.

In their motion for summary disposition, supported by a statement of material facts not in dispute and by the affidavit of Edward A. Sawyer,8 Applicants asserted that the following material facts are not in dispute: 8

1. NUREG-0737, item 1.D.I states that all licensees and apphcants for operating licenses will be required to conduct a detailed control room design review (DCRDR) to identify and correct design deficiencies. It lists guideline documents issted or to be issued by the NRC, and discusses the NRR review of the Licensee's submittal.

2. NUREG-0737, item I D.2 states that each applicant and each licensee shall in-stall a safety parameter display system (SPDS).

3. Supplement I to NUREG 0737 (generic letter 82-33) was issued to present a dis-tillation of the requirements and provide additional clarification for five items on NUREG-0737, includmg the DCRDR and SPDS. Therefore, Supplement I to NUREG-0737, not the NUREG itself, presents the requirements that have to be met to provide an acceptable Detailed Control Room Design Review program.

4. For this reason. PSNil designed its program to meet the requirements of Sup-plement I to NUREG4737.

5. A multi-disciplined team, consisting of Program Manager, iluman Factors con-sultant, Instrumentation and Control Engineer, and a Plant Shift Superintendent, was formed. This team was expanded as necessary to include other plant operators and other engineering disciphnes for specific reviews.

a Mr. Saw>er is the program manager of the scabrook Stanon Detailed Control Room Design Restew (DCRDR), had been the Management Tesin Chairman of the Yankee Atomic Power Stanon DCRDR.

and had been a management team member of the Vermont Yankee Nuclear Power 5tauon DCRDR.

• We note that NL' REG.0737 "ClanGcation of TML Action Plan Requirements." was iwued m No-vember 1%0 Supplement I thereto was issued m January 1983, to provide additional clanricanon re-gardmg meer sha, the Safety Parameter Display Systems and Detaded Control Room Design Reviewt The NRC's genenc letter of issuance stated that; The enclosure [5upplement 1] does not specify a schedule for completing the requirements. It has become apparent, through discussions with owners' groups and mdividual hcenseen, that our previ-ous schedules did not adequately consider the integranon of these related activines. In recognstion of this and the ddTiculty in implementmg genenc deadhnes, the Commission has adopted a plan to estabhsh reahsuc plar.t-specinc schedules that take into account the umque aspects of the work at each plant. By this plan. each hcensee is to develop and submit its own plant. specific schedule which udl be reviewed by the assigned NRC Project Manager. The NRC Project Manager and hcensee wdl reach an agreement on the final schedule and in this manner provide for prompt imple-mentation of these unportant improvements while opumazmg the use of utihty and NRC resources.

Supplement I stated at 1. 2. and 9. that The requirements for emergency response capabibucs and facihties are bems transanatted to h-censees by this supplement and are bemg promulgated to NRC staff. The letter which forwards this supriement requests that hcensees submit a proposed schedule for completmg actions to comply with the requirements. Each heensee's proposed schedule will then be reviewed by the assigned NRC Project Manager, who wdl discuss the subject with the hcensee and mutually agree on sched-ules and completion dates. The implementation dates will then be formahzcd into an enforceable document.

. . . The proposal to formahre implementation dates in an enforceable document reflects the level ofimportance which the NRC staff attnbutes to these requirementt Prompt implementation of an SPDS is a design goal and of pnmary importance.

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U C An extensive and counprehensive functaon and task analysis was performed to determine Instrumentation and Control reqmrements. This subject was discussed en-

, 4 7 tensively in SBN 701, dated July 30, 1984, in a meeting held on October 30, 1984, and in SBN-748, dated January 7,1985.

. 7. The I & C requirements developed as a result of this function and task analysis

'i were compared against the actual Control Room instrumentation and controls. A

\ control room survey and review was performed to identify deviations of the control room instrumentation and controls frons accepted human factors principles. The po.

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tential Human Fnyinmerug DeGesencies (HEDs) were assessed and priontised.

' 'Ihese activities included survey, review, assessment and pnoriewaama of all displays,

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• including SPDS displays.'The results of these efforts were also subadtted to the

- NRC in various letters dated April 14.1983, August 10,1983, July 30,1984, January b 7,1985, July 17,1985, December 27,1985, and February 20,1986.

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? 8. During the -=====t process, the Reyww Team venAed that the h design improvements provided -ry correcaons. A review perfonned by the

- Review Team aber the majonty of HED corrections were niede verined that the

- - improvements did not emate new HEDs.

9. The NRC Staff, in Supplement 4 to the Seabrook SER.'has concluded that "PSNH has conducted a DCRDR for Seabrook Station that satisfactorily meets the requirements of Supplement I to NUREG-0737."

, In light of the above-set-forth undisputed material facts, Applicants urged that the DCRDR, including the review of human factors perspec-tive of displays and of safety parameter display system displays, has been

undertaken and the displays and controls added, or to be added, to the control room as a result of the DCRDR do not increase the potential for operator error. Thereforec Applicants requested that the Board grant the motion for summary disposition.

I In its response of August 4, while stating that it is not prepared to accept the Applicants' above-set-forth material facts as : undisputed, 2

SAPL did not present any reasons for disputing them. Accordingly, we ,

find that the' displays and controls added, or to be added, to the control .

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room as a result of the DCRDR do not increase the potential for opera- ,

tot error, and grant the motion for summary disposition, as supported by. '

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_ the Staff, with respect to this issue.

, SAPL'did argue, however, in its esponse of August 4 that Applicants 4

had selectively dealt with only one sentence in the basis for the conten-tion - i.e., Applicants had not discussed and shown that there is no dis-puted material fact with respect to the issue of whether the control room

. design and displays are at the optimum to protect the population in the -

immediate vicinity of the plant. SAPL asserted that there are four dis-

,~ puted issues of material fact: (1) whether additional parameter displays I should appear. on the Safety Parameter Display System (SPDS),* (2) y

• With respect to the SPDS. SAPL is concerned that modancations thereto providing for additional

displays for RHR flow, mtainment isolation, containment hydrogen concentration, steam generator re-Connoued

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l whether the color coding of the Video Alarm System (VAS) should be -

' made consistent with other control room CRTs prior to any operation, (3) whether a preliminary evaluation of the control room environment-ought to be accomplished prior to fuel loading, and (4) whether certain

- Human Engineering Discrepancies involving control room furnishings and equipment storage should be evaluated prior to fuel loading.8 Ac-

'. cordingly, SAPL urges that there is no proper justification for allowing l the Seabrook Station to operate at any power level prior to the comple-

- i tion of items needed to bring the facility into full compliance with the Commission's regulations.

4 In its response of August 18 supporting Applicants' motion for sum-mary disposition,' the Staff relied upon a statement of material facts as :

3 to which there is no genuine issue in dispute and upon the affidavit of Mr. Richard J. Eckenrode.7 With respect to the DCRDR, noting that L 18 of Supplement 4 to the SER concluded that Applicants had con-i ducted that review which satisfactorily met the requirements of Supple-ment I to NUREG-0737 except in the following limited areas, the Staff asserted that these areas involve low-pliority items from the standpoint

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of control room design. First, as to control room furnishing (desks, j

chairs, tables, files, etc.), since the installation of these furnishings in the

~l control room is planned to be substantially identical to the installation i

previously reviewed in the control room simulator, the Staff asserted t- ' that any discrepancies that might be uncovered as to this low-priority I- item would be minor and thus any corrective action need not be com-pleted until the first refueling outage.

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SAPL barrenly argued, in its answer of August 28, without the sup-port of an expert's affidavit, th' at, since telephones in the control room are not in the same location as those in the simulator, the phones were s,. not in the optimum location from a human factors standpoint. The Staff

, ' dianon, and for stack monitonng, are not required by the Dr:3 License to be effected until pnor to i restart following the rirst refuehng outage. he staff sent the Draft License No. NPF-56 to the parties on June 20,1986. See note 8. iq/re, a With respect to the DCRDR, sAPL is concerned in that f l8'of supplement 4 to the sER provides that any changes to the color-codmg scheme. to control room furnishmgs, and to equipment storaSe may be resolved pnor to startup from the rirst refuehng outage. and in that rmal evaluanon of the con-trol room environment will be completed and reported to the NRC for confirmatory review withm I

, year after commercial operation, a in passing, we note that the staff argues that the issue of the timmg for the complenon of vanous items associated with the DCRDR and sPDs had not been raised in the ongmal contention, and that.

'not having rded an amendment or a new contention, sAPL should not be allowed now to expand the contention. We agree with sAPL and conclude that the timing issue was imphcitly raised to the conten--

tion, i.e., the contention in alleging noncompliance can be and is read to mean that operauon should not

, be showed until corrective actions are taken.

' htr. Eckenrode is a Human Factors Engineer in the ofnce of Nuclear Reactor Regulation and had the lead responsibthty for the NRC review of the seabrook stauon's compliance with NUREG4737, items I.D.1 and 1.D.2. He was the pnncipal author of i 18 in supplements 3 and 4 of the sER.

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f did not state that all the furnishings in the control room had to be in-stalled in locations that were identical to those in the simulator, and SAPL does not explain why the current location of the phones would ,

adversely impact upon the emergency notification scheme. In any event,  ;

SAPL stated that it was satisfied with Applicants' August 22,1986 re- l 4

sponse to SAPL's interrogatories, wherein Applicants stated that resolu-tions for such " minor" HEDs would be implemented before initial criti-e -

cality. Thus, there is no genuine issue of material fact here.

, Second, as to operator protective and emergency equipment storage

. facilities, the Staff asserted that since these facilities have already been

_ reviewed and judged adequate by the Applicants and since they will be installed and the adequacy thereof will be reviewed by the Staff and by the Applicants prior to fuel loading, only minor (if any) discrepancies are expected to be found, and thus any corrective action need not be com- l pleted until the first refueling outage. l SAPL argued in its answer of August 28 that there is an apparent in-

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l consistency in Applicants' August 22 response to SAPL's interrogatories

- i.e., in one response Applicants stated that resolutions of HEDs relat-7 ed'to operator protective equipment and equipment storage would be re-solved prior to initial criticality, but in another response Applicants as-serted that there is not going to be any operator protective equipment because the ventilation system maintains control room habitability under all conditions. This alleged inconsistency presents no genuine issue of material fact because SAPL does not tell us what significant safety prob-

. lems might arise if Applicants proceed one way or the other.

i Third, as to the control room environment, the Staff asserted that, l using a subjective basis of personal comfort, it has preliminarily evalu- i sted the control room environment to determine if the potential exists for l gross inadequacies'(i.e., too much noise, uncomfortably hot tempera-i tures). However, the Staff will not conduct and complete a final review

, - (using objective measurements provided by NUREG-0700) until after the plant has been operating at full power, because the preoperational condi-tions may change during operation (i.e., the heat load during operation may raise the temperature, operating systems may raise the ambient noise r level, etc.). Since the Staff does not expect any discrepancies to be major ones, it agreed to a schedule whereby, within 1 year of commercial oper-ation, environmental measurements will be conducted and resolutions of deficiencies must be proposed. .

We note that, in its answer of August 28, SAPL makes no effort what-

,- . soever to address control room environment. In a broad-brushed,'

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conclusional, and speculative manner it merely argues that it believes

. that reviews of the control room environment, as well as of the storage  !

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' i of operator protective equipment and of control room furnishings may raise safety issues. Again, here, there is no genuine issue of material fact.

Fourth, as to the change in color coding on the Video' Alarm System .

(VAS), the Staff stated that the Applicants have committed to revise the color scheme before commercial operation, which involves changing the -

color coding on the VAS to make that coding more consistent with the

" color coding on other computer monitors. The Staff asserted 'that since :

_ operators are trained. to use the present color scheme, the use of the VAS prior to commercial operation should not present a problem, and that, after the revision is made, additional training should be minimal be-

~ cause the operators are already familiar with the color scheme used on the other monitors.

The Staff concluded that, with respect to the DCRDR, the Applicants have fulfilled the requirements ofitem I.D.1 of NUREG-0737 except for the narrow areas discussed above, and that those areas will be completed before the end of the first refueling outage.

In its answer of August 28, SAPL indicated it was satisfied with Ap-plicants' response to SAPL's interrogatories, wherein Applicants indi.

cated that they intended to correct the color-related HEDs in the VAS 1 . prior to initial criticality. Thus, there is no issue of material fact. SAPL c ,

continued, however, to urge that there is no acceptable justification for deferring improvements that will aid plant operators in monitoring plant conditions - i.e., in committing to banding indicators only by the end of the first refueling outage. We conclude, however, that SAPL has not in-dicated how banding of the indicators prior to operation at full power would enhance the ability of control room operators to prevent or cope with accidents, much less indicate how this banding is related to the

, VAS. Again, there is no genuine issue of material fact.

With respect to the SPDS, the Staff asserted that it is not considered a safety system, and that no operator actions are taken at the SPDS. In-stead, the SPDS is used 'to direct operators to various other displays in the control room where corrective actions are to be taken if needed, and, in the absence of that system, operators can acquire the necessary infor-mation from these other displays. Further, the Staff asserted that, while it did not identify any serious safety questions in its review, it did con-

~

clude in f 18 of Supplement 4 to the SER that the Seabrook Station SPDS had not yet fully satisfied the applicable requirements of Supple-ment I to NUREG.0737 and that it would condition the license to re-quire that final compliance be demonstrated before restart following the I

O

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4 first refueling outage.8 The Staff concluded that while the SPDS does not yet comply with NUREG-0737, Supplement 1, and that indeed five additional items will be listed in Supplement 6 to the SER, it does not believe that this noncompliance presents a serious safety problem at

- Seabrook. It urged that the motion for summary disposition should be granted since SAPL has never identified any safety problems that might arise in deferring improvements until the first refueling outage with re-

^

spect to the SPDS.

While it is the movant, not the oppsing party, which has the burden of showing the absence of a genuine issue as to any material fact,' if the

' i motion for summary disposition is properly supported, the opposition may not rest upon " mere allegations or denials"; rather, the answer must set forth specific facts showing that there is a genuine issue of fact.20 Here, the Applicants' motion (as supported by the Stafi's response) was s properly supported with respect to the DCRDR and shows the absence of a genuine issue as to any material fact. Other than raising the specter

. of the TMI-2 accident, other than citing NUREG-0660 for the argument that there are some items in the "NRC Action Plan Developed as a Result of the TMI-2 Accident" (such as control room design) that need to be implemented as quickly as they can be done correctly, and other

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a Drah License No. NPF 56 at C.9 provides:

Pnor to restart following the first refuchng outage, PSNH shall have operatonal a Safety Parame-ter Display System (SPDS) as desenbed m PSNH's submittats dated January 6,1986, and Apnl 2, 1986, that shall include the follommg modificatsons:

1. Contmuous display of the top level cntical safety function summary at the assigned sPDS con-trol room locaton,

, 2. Addition of, or satisfactory justification for not addms, RHR flow and hydrogen concertmt en parameters to appropnate SPDS screens,

3. Addition of a contamment isolaten status screen on SPDs, or improvement to the current contamment isolaten display to be satisfactonly recognizable from the assigned SPDS location

, m the control room,

4. Addition of a radiation momtonng screen to display at least steam generator (or steam hne) and stack radiation,

$. Improvement of the Heat Sink screen for consistency in labehng, and the subenucahty screen for mode dependency so as not to mislead operators, and

, 6. Addition of approved esolation devices between the Reactor Vessel Level Instrumentation ,

System (RvLis) and SPDS.

In passmg, the Board notes that, in response to its letter of mquiry of August 21,1986, the staff advtsed

, on September 2 that a later draft heense had been transmitted to the parties on August 20. Since the Staff's response to the Apphcants' moten for summary disposition adverts only to the draft hcense sent to the parues on June 20,1986, we only consider that earher draft heense.

' Cicieland Elerrrte ll/agnmanns Ca (Perry Nuclear Power Plant. Umts I and 2), ALAD 443,6 NRC 741, 733 (1977).

. Vargrete Electric sad bee Ca (North Anna Power $tauon. Umts I and 2), ALAD $84, !! NRC 431, 433 (1980).

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6 than reasserting its contention that the displays and controls in the con-trol room must be at the optimum, SAPL has not demonstrated the exist-ence of a genuine issue of material fact with respect to the DCRDR. We herewith do grant the motion and dismiss the DCRDR issue because the

' movant, as supported by the Staff, has shown that there is no genuine issue of fact - i.e., has sustained the burden of showing that, with re-spect to the DCRDR, there are no safety concerns and thus that correc-tive action, with respect to the limited areas discussed above, need not be completed until the first refueling outage.

' Ilowever, while we agree with the Staff that SAPL has never identi-fled any safety problems that might arise in deferring corrective actions with respect to the SPDS until the first refueling outage, neither the Ap-plicants nor the Staff, in support, has sustained the basic, primary burden of showing that there is no genuine issue of material fact. The Applicants have not attempted to do so. The Staff barrenly asserted that the current noncompliance with NUREG-0737, Supplement 1, does not present a se-rious safety problem at Seabrook but does not explain its reasons. The Staff simply relied on the fact that NUREG-0737, Supplement 1, does not require implementation of the SPDS before full power operation but, rather, permits implementation to be determined by a schedule that has been negotiated with the Staff (Staff's Response at 13 n.5; also see supra note 3).8 2 The schedule reflected in Draft License No. NPF 56 at C.9 illustrates the low level of importance that the Staff attaches to the timely completion of the SPDS. Such a position, however, is not in accord with specific guidance in Supplement I to NUREG-0737 @ 4.1.d.

which states:

Prompt implementation of an SPDS can provide an important contnbution to plant

- safety. The selection of specific information that should be provided for a particular plant shall be based on engincenng judgment of individual plant hcensees, taking into account the importance of prompt implementation.

With respect to the safety significance of the deficiencies in the SPDS, which the Staff asserted pose "no significant safety question"(Staff's Re-sponse at 12), the Staff did not even present a general explanation for this conclusion. Yet as to the first deficiency listed, the Staff provided a parenthetical note that isolation devices between the SPDS and Reactor Vessel Level Instrument System (RVLIS) are to protect the safety-relat-ed RVLIS. The Board is left to guess why the undetermined status, or availability, of the RVLIS does not present a safety issue, and why it H 5taff does not argue, and we are unaware, thal any whedulmg agreement arnved at by the staff and an applicant pursuant to Supplement I is not properly subject to challenge and to judicial review.

446

need not be corrected prior to operation at full power. We are also left to speculate as to how operators can rely on acquiring RVLIS data from either the display at the SPDS or that on the control room console if availability of the RVLIS itself cannot be relied upon. The lack of expla-

, . nation applies to all 11 items of noncompliance with Supplement I to NUREG-0737.

Supplement I also was cited by the Staff as not requiring implementa-

tion of the SPDS before full-power operation (Staff's Response at 13

. n.5), without reference to where in that document such delay in imple-

- mentation was permitted. While perhaps language somewhere in that

,:- document might support the Staff's interpretation, we refuse to do the

. ' homework for any party.18 Order

l. The Board partially grants the motion for summary disposition in i the following respects:

a. The displays and controls added, or to be added, to the control room as a result of the DCRDR do not increase the potential j _

for operator error,

b. While all items addressed in the DCRDR are not currently at an optimum, i.e., incomplete, and corrective action is to be deferred until the next refueling outage, there is reasonable assurance that the safety of the population in the immediate vicinity of the i plant will be protected.

2. The Board partially denies the motion for summary disposition in the following respect: since the SPDS is not currently at an optimum, i.e., incomplete, in light of the deficiencies which are listed in Draft Li.

j .

cense No. NPF-56 at C-9 and in light of five additional deficiencies which will be listed in Supplement 6 to the SER, there is no reasonable assurance that, in deferring improvements to the SPDS until the first re-fueling outage, the safety of the population in the immediate vicinity of the plant will be protected.

3. With respect to i 2, above, SAPL may and the Staff and/or Appli-cants shall present written explanatory testimony upon the issue of -

whether or not, in light of the fact that the SPDS is not currently at an optimum, i.e., incomplete, because of the aforementioned deficiencies, i

j 88 Parties are remmded that pleadmgs submitted to this Board must be complete and that the Board will not. and cannot be espected to, search for mformatson incompletely given, or referenced. by any party.

T f

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$ , there is reasonable assurance that, in deferring improvements to the

, SPDS until the first refueling outage, the safety of the population in the immediate vicinity of the plant will be protected.88 THE ATOMIC SAFETY AND LICENSING BOARD Sheldon J. Wolfe, Chairman

. ADMINISTRATIVE JUDGE

' Jerry Harbour q ADMINISTRATIVE JUDGE 1

Dated at Bethesda, Maryland, 4

this 15th day of September 1986.

PARTIAL DISSENT 4

I concur with the majority of the Board to grant the motion for sum-l mary disposition regarding the DCRDR. I disagree with the majority in granting the motion for summary disposition only in part regarding the ,

SPDS. I would have granted the entire motion for summary disposition.

It will be useful to provide some background information. The safety parameter display system (SPDS) is used to provide operators with a concise display ofinformation on some critical plant variables. The Staff asserts that it does not consider it to be a safety system and that no oper-ator actions are to be taken at the SPDS. It is used to direct operators' attention to other displays in the control room where corrective actions are to be taken. (Eckenrode Affidavit, i11) The specific requirements for the SPDS are given in NUREG-0737, Supplement 1, { 4.1.

Applicants have now installed an interim SPDS. In reviewing the doc-umentation with Applicants regarding the interim SPDS, Staff did not identify any serious safety questions but did conclude that the SPDS is not yet complete. The operators need to acquire some information from other displays, The Staff has concluded that the present SPDS in the is Dunng the course of a conference caH on september 10, 1986, the Board advised counsel as to the contents of this order, and, upon inquiry by counsel for Massachusetts, the Board ruled that, as an inter.

ested state, Massachusetts may present wntten tesumony upon this issue.

448 i

) *

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

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4 Seabrook plant can be used to provide operators with adequate informa-tion about the status of the plant and will be acceptable as an interim

~

. measure. The SPDS in its current design will not increase the potential for operator error in the event of an abnormal occurrence at Seabrook.

NUREG-0737, Supplement 1, does not require that the SPDS be com-pletely implemented before full-power operation.

-- ', The incomplete items are listed in 115 of Staff's August 18 response i.

to Applicants' Motion for Summary Disposition. Staff reviewed the

matter ofimplementation with Applicants and agreed that the incomplete items must be implemented by the end of the first refueling outage. This

', scheduling procedure is in compliance with the requirements stated in

't NUREG-0737, Supplement 1.

Some additional open items were noted by Staff in { 15 of its August 4 - 18 response. These are to be discussed in Supplement 6 of the SER. The Staff will require that the Applicants must either satisfactorily resolve these open items or demonstrate to the Staff's satisfaction, before the end of the first refueling outage, that the open items will not degrade the

. performance of the SPDS.

SAPL states in its August 4 response to Applicants' Motion for Sum-mary Disposition, at page 3, that the genuine issues of material fact in dispute with regard to this contention are:

(1) whether additional parameter displays should appear on the Safety Parameter Display System (SPDS),

(2) whether the color coding of the Video Alarm System (VAS) should be made consistent with other control room CRTs prior to any operation.

(3) whether a preliminary evaluation of the control environment ought to be ac-complished prior to fuel loading. and i (4) whether certain Human Engineering Discrepancies involving control room fur.

i nishings and equipment storage should be evaluated and resolved prior to fuel

loadmg.

+

SAPL states at page 4 that there is no dispute that these things need to be done to comply with NUREG.0737 items I.D.! and I.D.2. The NRC Staff is requiring that the missing items be either accomplished, or that sufficient justification for not taking action be provided, prior to restart after the first refueling outage. Contrary to NUREG-0737 and Supple-ment 1, SAPL, at page 5, believes that there is no proper justification for allowing the Seabrook Station to operate at any power level prior to completion ofitems needed to bring the facility into full compliance with

the Commission's regulations.

In its response to Applicants and Staff, SAPL has not identified any 4

safety problem associated with deferring the improvements until the end

449 i

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, of the first refueling outage. It is noted that NUREG-0737, Supplement 1, does not explicitly require the SPDS to be optimal.

After thorough consideration of Applicants' motion for summary dis-position of Contention SAPL Supplement 6 (formerly NH-10), and the responses thereto by Staff and SAPL, I would grant the entire motion for summary disposition including the SPDS. In reaching this conclu-

' ' sion, notice is taken of the Commission's Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses,45 Fed.

Reg. 85,236 (Dec. 24,1980) which explains that NUREG-0737 now rep.

resents the core of the substantive requirements of the post-TMI-2 Action Plan. This was followed by NUREG-0737, Supplement 1, for purposes of clarification. It reflects that some requirements, especially the implementation of schedules, were made more flexible. Section 3.5 states that:

Specific implementation plans and reasonable, achievable schedules for improve-ments that will satisfy the requirements will be established by agreement between the NRC Project Manager and each individual licensee.

1 ,

In the absence of the State of Massachusetts' Seabrook Radiological Emergency Plan, the Applicants may find it to be practical and sensible to complete the SPDS during the Massachusetts interval of delay instead of prior to restart after the first refueling outage.

Emmeth A. Luebke ADMINISTRATIVE JUDGE e

e 450 t

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Cite as 24 NRC 451 (1986) LBP-86-31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 1

Before Administrative Judges:

Herbert G.-:::-. 27., Chairman Richard F. Cole A. Dixon Caillhan 4

in the Matter of Docket Nos. 50-456-OL s 50-457-OL (ASLBP No. 79-410-03-OL)

COMMONWEALTH EDISON COMPANY (Braldwood Nuclear Power Station, Units 1 and 2) September 18,1966 Licensing Board issues a Memorandum and Order authorizing the issu-ance of a license to Applicant to load fuel and conduct certain precriticality testing upon a showing that the facility will remain subcritical without any reliance on the electrical system that is in issue in ,

the proceeding. I I

OPERATING LICENSE: FUEL LOADING AND PRECRITICALITY  !

TESTING Under 10 C.F.R. 9 50.57(a), a license permitting activities short of full-power operation may be issued notwithstanding the pendency of a con-tested operating licent.: proceeding.

1

. 451 1

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1

s OPERATING LICENSE: FUEL LOADING AND PRECRITICALITY TESTING Where an application for a f 50.57(c) license is opposed, the licensing board must determine whether any of the contentions already admitted in the proceeding are relevant to the requested license and, if they are, make findings under f 50.57(a) on matters as to which there is a contro-versy.

~ OPERATING LICENSE: FUEL LOADING AND PRECRITICALITY TESTING Where a licensing board finds that already admitted contentions are not relevant to the requested less-than-full-power license, the board does not make f 50.57(a) findings, but authorizes the Director of Nuclear Re-actor Regulation to do so.

OPERATING LICENSE: FUEL LOADING AND PRECRITICALITY TESTING Where intervenors make no showing that any admitted contention raises a safety matter with regard to the requested fuel loading and precriticality testing license, they have failed to establish that the conten-tion is relevant because they have not raised any matters on which the board can make findings under 9 $0.57(a) adverse to applicant.

MEMORANDUM AND ORDER (Authorizing Fuel Loading and Precriticality Testing)

Applicant, Commonwealth Edison Company, filed a motion, pursuant to 10 C.F.R. 9 50.57(c), requesting this Board to authorize the Director of Nuclear Reactor Regulation, upon making the applicable findings re-quired by 10 C.F.R. I 50.57(a), to issue a license to Applicant to load fuel and conduct certain precriticality testing of the Braidwood Station, Unit 1. Applicant relies upon supporting affidavits to the effect that the Applicant will carry out its fuel loading and precriticality testing activi-ties in a manner that will ensure that the facility remains subcritical with-out any reliance on electrical systems or circuitry under accident and transient conditions.

Staff supports Applicant's request and adds its own affidavits indicat-ing that Staff has evaluated Applicant's ability to perform fuel loading and precriticality testing without reliance upon the electrical equipment 452

1 4

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for protection of the health and safety of the public. Staff's affidavits in.

dicate that the only threat to public health and safety in the performance of the proposed fuel loading and precriticality testing arises from an in-advertent criticality in the core and that this inadvertent criticality wil!

not occur if a boron concentration of 2000 parts per million (ppm) in the core coolant is maintained. Applicant has committed itself to special

[ '

. administrative procedures that will assure that the boron concentration i ,

, does not go below 2000 ppm, to be included as a license condition to any fuel loading and testing license, and to be monitored by the NRC Staff.

Intervenors, Bridget Little Rorem, et al, however, oppose Applicant's motion to load fuel and conduct precriticality testing on the ground that their quality control contention asserts that the quality of the Applicant's i -

electrical installations is indeterminate, and that since Applicant must uti-

! lire its electrical system in these operations, albeit not necessarily to safely conduct these operations, Intervenors' contentions are " relevant to the activity to be authorized" under i 50.57(c), and the Board must make l findings specified in 5 $0.57(a). Included in 5 50.57(a) are findings that

{ construction of the facility and its operation have been, or will be, in

, , conformity with the construction permit and application, and that there is reasonable assurance that the activities authorized by the operating li-j ,

cense can be conducted without endangering the health and safety of the public and in compliance with the regulations in 10 C.F.R. Part 50.

Intervenors further contend (Opposition at 810) that they are entitled to a hearing on the matters to be found under 5 $0.57(a) and that the nature of the issues to be heard would be no different from the issues on the merits of Intervenors' contentions. Intervenors state that, as a practical i i matter, the evidence to be adduced in the main hearing and any

?

. , 3 5 50.57(c) hearing might be identical, and that separate hearings would j only be duplicative, although Intervenors would not oppose separate hearings if Applicant can show that they would not be duplicative and wasteful. Id. at 10.

We grant Applicant's motion and authorize the Director of Nuclear Reactor Regulation to make appropriate findings on the matters specified in 5 $0.57(a) and to issue a license for the requested operation within the

! parameters specified by Applicant in its motion and supporting affidavits, and by Staffin its response and supporting affidavits.

MEMORANDUM 1 Section 50.57(c) allows an applicant in a contested OL proceeding to move the licensing board to authorize the issuance, by the Director of i

453 t

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9 Nuclear Reactor Regulation (" Director"), of a license permitting activi--

ties short of full-power operation, notwithstanding the pendency of safety contentions before the licensing board. The regulation was pro-mulgated to provide explicitly for early consideration of facility testing in the event of a contested hearing on the issuance of a license for full-power operation. 36 Fed. Reg. 8862 (May 14,1971). Thus the regulation affords relief to an applicant when the pendency of hearings before a li-censing board threatens to delay the applicant's fuel loadmg and testing

- ' schedule. That is the situation in which the Applicant in this proceeding

• finds itself at the present time. Applicant is scheduled to begin loading fuel in Braidwood Unit I on September 30,1986 (O'Connor, Tr.10,102);

' and it has become clear that on the present hearing schedule an initial decision cannot issue by that date.

Section 50.57(c) provides that when no party to the proceeding op-poses the motion, the licensing board shall issue an order authorizing the Director to make the requisite findings under. I50.57(a) and to grant a license for the requested operation. The board's issuance of such an order is not automatic, however, when a party contests the motion. Sec.

tion 50.57(c) provides that the licensing board's action on the motion shall be taken "with due regard to the rights of the parties to the pro-ceedings, including the right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized." To safe.

~

guard these rights, any party may oppose the motion by asserting that the 5 50.57(a) findings cannot be made for the requested authority be.

cause its contention is relevant to those operations and must therefore be resolved prior to the issuance of the 5 50.57(c) license.

In that case, the licensing board must determine whether the conten.

tion is in fact relevant to the requested operation, and if it finds that the contention is relevant, 5 50.57(c) provides that the board itself make those 130.57(a) Andings "as to which there is a controversy" because of the pendency of a relevant contention. The Director is still responsible for making the other i 50.57(a) findings. If the licensing board finds that the admitted contentions are not relevant to the requested operation, and therefore need not be resolved before the requisite 5 50.57(a) Andings can be made, the board does not make any I $0.57(a) findings, but authorizes the Director to do so.10 C.F.R. I 50.57(c); #isc(/lc Gas and Electr/c Ca (Diablo Canyon Nuclear Power Plant, Units I and 2), LBP 815,13 NRC 226, 233 (1981); see also #bc(/lc Gas and Electric Ca (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI 83 27,18 NRC !!46, 1149 50 (1983).

It is thus apparent that the regulatory scheme set forth in f 50.57(c) preserves, but does not expand, the existing rights of the parties and the

o ,

., l existing jurisdiction of the beensing board. The right of an intervenor to contest the issuance of an operating hcense is dermed by the contentions already admitted by the licensus board. The board's jurisdiction is lim-ited to determining the admitted contentions and any additional issues which the board raises sua .iposte through the procedures speci5ed by the r'a==inanaa To the extent that a party's admitted contentions are relevant to the  ;

, a requested operation, 5 50.57(c) requires the licensing board, at that i

party's request, to resolve them before authorizing the Director to issue f, the lunited operating lice ==* Matters not raised by existing contentions concerning the motion for lunited operation are outside the scope of the

. proceeding, and I $0.57(c) provides that the Director make the necessary findings on such matters. Thus a f 50.57(c) motion is not an opportunity for the adminaion of new contentions aimed at the limited operation sought by the Applicant. Arc (/le Gar and Electric Ca (Diablo Canyon

. Nuclear Power Plant, Units 1 and 2), CLI 815,13 NRC 361,362 (1981);

Asc(/ic Gas and Electric Ca (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB 728,17 NRC 777,801 n.72 (1983); Diable Campos. LBP.

815, men.

Since Intervenors have opposed Applicant's motion, the Board must

.  : determine whether Intervenors' contentions are relevant to the activity )

to be authorised and, if so, make Andings on the matters specified in

. I 50.57(a) as to which there is a controversy.  ;

We begin our consideration with Applicant's assertion (Motion at 10)  ;

that its affidavits demonstrate conclusively that Applicant will carry out

• its fuel loading and prectiticality testing activities in a manner that will ensure that Braidwood Unit I remains suberitical without any reliance on electrical systems or circuitry under accident and transient conditions.  ;

, Therefore, Applicant further states, Intervenors' QC inspector harass-ment contention is wholly irrelevant to the activities for which the Ap-  ;

plicant is seeking authorization.

But, according to Intervenors (Opposition at 4), the threshold of rel-evance under i 50.57(c) is not merely whether, as Applicant suggests, the pending contention is relevant to the aq/r conduct of the proposed activ-ity. Instead, Intervenors further suggest, the relevance concern is broader: ' whether the pending contention is relevant to the conduct of the proposed activity. Since the proposed activity would make use of the electrical system, the pending contention, which asserts that the electri-cal system is indeterminate, must be relevant to the proposed fuel loading and precriticality testing activities, according to Intervenors.

In making their argument that Applicant's mere use of the electrical system in the contemplated activity makes intervenors' quality control 488 4

I r

a

contention relevant, Intervenors rely heavily (id. at 5) on the nature of l the findings that the Board might have to make under 9 50.57(a). The i

crux of their argument is their statement that "those findings are not lim-ited only to ' safety'" (emphasis in original). Intervenors point out that certain of the findings specified in 9 $0.57(a), do not specifically mention safety; e.g., construction of the plant and its operation must be found to be in conformity with the construction permit and the application as amended. Similarly, Intervenors argue that Applicant must meet certain l General Design Criteria of Appendix A of 10 C.F.R. Part 50 and Tech-nical Specifications prepared in accordance with requirements of 10 C.F.R. 9 50.36, and that Intervenors are entitled to a hearing on whether those General Design Criteria and Specificatic,ns have been met.

We do not agree with Intervenors that the findings that the Board l must make under 9 $0.57(a), or with regard to the General Design Crite-l l ria or Technical Specifications, are not limited to safety. As we under.

stand the legislative and regulatory requirements, all of the Board's find-

, ings under Part 50 are in the context of the public health and safety.8 If, i

for example, we were to determine that Applicant's construction or oper.

l ation of the plant departs from the requirements of the construction i

permit application, as amended, General Design Criteria, or Technical Specifications, but does not depart in any manner that has an adverse l impact on the public health or safety, our ultimate findings would be that l the plant's construction or operation is in substantial conformity with the requirements. As we understand it, any deviation from these require-ments, to the extent that they do not affect the public health or safety, would have no adverse consequence on the granting of the operating li-cense.

In the view of the Board, the test for relevancy, under 9 50.57(c) as in general, is whether, if the matters were heard, they could result in a find.

ing adverse to the other party - in this case under 9 50.57(a). Since only matters inimical to the public health or safety can be decided adversely to Applicant under 9 50.57(a), and Intervenors have made no showing that their admitted contention raises a safety matter with regard to fuel loading and precriticality testing, they have failed to establish that the contention is relevant to the requested license.

Stated another way, Intervenors have' raised no matters with respect to the proposed fuel loading and precriticality testing on which, if the mat.

ters are taken to be proven, the Doard could make findings under 9 50.57(a) adverse to Apphcant.

1 I

i We do siot consider in this dricussion Andings that might he required by 10 Cf R. Part $1 relanns to

• the Nat anal Environmental ruhcy Act of 1969, since no environmental sententsons have been admatted

( 6n this proceeding l

l I. 456 1

1

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We have given due consideration to Long Island Lighting Ca (Shoreham Nuclear Power Station, Unit 1), CLI 84-8,19 NRC 1154 (1984), in making our determination. liad Intervenors here made some showing that the use of an indeterminate electrical system in the fuel loading and precriticality testing would depart in some manner from the General Design Criteria or Technical Specifications that might have an adverse impact upoa the public health or safety, we might have been persuaded that Applicant should be required to apply for an exemption from those requirements under 10 C.F.R. 9 50.12(a), before we could make our determination under i 50.57(c) that its contention is not rele-vant to the activity to be authorized. Presumably, such a showing was made in Shoreham.* cither in the oral argument or in the written filings that preceded and followed the oral arguments. See 19 NRC at 1155. No such showing was made here and we need not require that Applicant pursue the exemption route under i 50.12(a).

i ORDER l

For all of the foregoing reasons and based upon a consideration of the entire record in this matter, it is, this 18th day of September 1986, ORDERED:

, l. That the Director of Nuclear Reactor Regulation is authorized to make all appropriate findings required under 10 C.F.R. I 50.57(a) with regard to Applicant's (Commonwealth Edison Company's) request for a license permitting Appheant to load fuel in 13raidwood Unit I and con.

duct precriticality testing of the unit,

2. That the Director is authorized to issue a license for the requested l operation, subject to his findings and within the parameters established by Applicant in its Motion for Authorization, and supporting affidavits.

dated August 18, 1986, and in NRC Staff's Response to Applicant's Motion, and supporting affidavits, dated September 9,1986,

3. That the granting of a license as herein authorized shall have no bearing on Applicant's right to any further license under 10 C.F.R.

Il 50.56 or 50.57,

4. That this Order become effective immediately, and e in 3Aarr4em the i 30 57(c) appination involved a request for a low-power operating hcense rather than a enere request foe fuel loading and precritirahey testing.

457

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5. That any party may take an appeal of this Order within ten (10) l days after service thereof by filing a r.o: ice of appeal and following the briefing schedule prescribed by 10 C.F.R. I 2.762.

THE ATOMIC SAFETY AND LICENSING BOARD j Herbert Grossman, Chairman ADMINISTRATIVE JUDGE Richard F. Cole ADMINISTRATIVE JUDGE l

A. Dixon Callihan l - ADMINISTRATIVE JUDGE Bethesda, Maryland September 18,1986 L

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Cite as 24 NRC 459 (1986) LBP 86-32 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

. Before Administrative Judges:

. Helen F. Hoyt, Chairperson Dr. Richard F. Cole Dr. Jerry Harbour In the Matter of Docket Nos. 50-352 OL

. 50 353-OL PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2) September 5,1986 In this Supplement to its Third Partial Initial Decision, the Licensing Board resolves a remanded issue concerning reasonable assurance of the availability of bus drivers to evacuate students in the event of a radio-logical emergency.

EMERGENCY PLANNING Licensee's arrangements for maintaining a pool of 200 or more bus I drivers to assist in an evacuation of the school districts, in conjunction l with plans and resources already in place that would be utilized by re-l sponsible county and school district authorities, meet the requirements of 10 C.F.R. I 50.47, and Appendix E to 10 C.F.R. Part 50, as well as the I l

criteria of NUREG-0654, and provide reasonable assurance that adequate protective measures for those school districts can and will be taken in the event of a radiological emergency.

459 i

- c. A t APPEARANCES Troy B. Conner, Jr., Esq., Robert M. Rader, Esq., and Nils N. Nichols, Esq., of Conner & Wetterhahn, P.C., Washington, D.C., for Phila.

delphia Electric Company.

Benjamin H. Vogler, Esq., Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C., for the NRC Staff.

Mark L. Goodwin, Esq., Pennsylvania Emergency Management Agency, liarrisburg, Pennsylvania, for the Commonwealth of Pennsylva.

nia.

, Michael Hirsch, Esq., Office of the General Counsel, Federal Emergency Management Agency, Washington, D.C., for FEMA.

i' Maureen Mulligan and David Stone, for Limerick Ecology Action.

i J TABLE OF CONTENTS 1

Page I. INTRODUCTION: . . . . . . . . .. . . . . . . . . . . . . .. 461

11. FI N D I NO S O F FACT.. .... ....................... .......... . . ..... . ... . 464

) A. Development of Licensee's Volunteer Employee Bus j Driver Pool.. .... ..... . ........ 464 B. Estimated Need for Additional Drivers....... . 465 i C. Employee Bus Driver Training and Qualification.......... . 467 D. Time Response Estimates: .......... 468 E. Ongoing Availability of Licensee's Employee Bus Driver Pool....... . .................................... 468

F. Additional Sources of Bus Drivers............ .... 470 G. Alleged Conflicts in Volunteer Responsibilities = 471

11. Conclusion.. . . ..... 471 I

Il1. CONCLUSIONS OF LAW....... . . . . . . . . . . . . . ...... 472 i V. O R D E R ... . ... . . ... . . . .. .. .. . . . . ... . . ... ...... . . . . . . . . . . . . . . . . . . . . . . . . .. 472 460 t

SUPPLEMENT TO THIRD PARTIAL INITIAL DECISION (On Offsite Emergency Planning Contentions)

I. INTRODUCTION This is a supplement to the Third Partial Initial Decision ("PID"),

issued on May 2,1985, by this Atomic Safety and Licensing Board ("Li-censing Board" or " Board") after consideration of offsite emergency planning issues in the operating license proceeding for the Limerick Gen-

. erating Station, Units 1 and 2 (" Limerick").8 The Third PID disposed of all offsite emergency planning contentions except those raised by the in-mates of the State Correctional Institution at Graterford,8 in favor of Applicant Philadelphia Electric Company (now Licensee).

, Following the conclusion of all hearings on contested issues, the Li-censing Board authorized the Director of Nuclear Reactor Regulation to issue full power operating licenses- for Limerick, consistent with the Board's decisions in this case and upon making requisite findings with re-spect to matters not embraced'in its decisions.8 The Commission there-after denied motions to stay the effectiveness of the Licensing Board's decisions on offsite emergency planning and preparedness and ordered that the authorization for issuance of a full-power license be made imme.

diately effective.* Various parties have appealed the Commission's action to the U.S. Court of Appeals for the Third Circuit. Those appeals have been consolidated and held in abeyance'pending completion of final agency action by the Commission in this proceeding.5

, In the interim, the Appeal Board reviewed this Board's Third PID, 4,

which it amrmed in ALAB 836, with two exceptions.e As to the first matter, the Appeal Board required the NRC Staff to verify establishment of additional trame control measures at one point along the perimeter of 8 See LDP-85-lo,21 NRC 1219 (1985L e Emergency plannms and preparedness for the inmates was the subject of our Fourth PID in LBP 85-25,22 NRC 101 (198St The Fourth PID found in favor of Applicant on all ensues but has been remand-ed on the resue of adequacy of the commanicatum system to be awd in an emergency at the sClo (ALAB-845,24 NRC 220(1986) a Lgp.35 25, sepen,22 NRC at 116. Although the hearings on contested ensues 6nvolved both Units I and 2 of Lamerick, a full-power operating license was issued only for Unit i 6nasmuch as Unst 2 has not yet been completed

• CLI-83 IS,22 NRC 184 (198$t l

• 3rr genroelly. Lamereck laim Artwo, Inc. n NRC No. 8914)h Marem n NRC Na 8%-1444, Antho.

ny a NAC No 8$.1e06; and LemerarA f. cole Artsos, lac. m NAC No, 86 3314.

'See ALAB-816,2) NRC 479 (1986L on July 24. 1986 the Commission decimed to review ALAB.

836.

461 f

the plume exposure pathway emergency planning zone ("EPZ") for Limerick.' No further action by this Board was ordered on this matter.

On the second matter, the Appeal Board held that two driver surveys conducted by the Superintendents of the Spring-Ford Area and Owen J.

Roberts School Districts " raise [d] a legitimate question whether there is reasonable assurance that an adequate number of drivers would respond in an emergency" related to Limerick." Therefore, the Appeal Board re-manded for further hearings before this Board relating to its finding as to

" reasonable assurance of the availability of an adequate number of bus drivers to evacuate students in the Spring Ford and Owen J. Roberts School Districts."'

Dy Order dated May 22,1986 (unpublished), this Board directed Li-censee, as the party with the burden of proof, to submit its proposal for resolution of the remanded issue, which Licensee filed on June 16, 1986.

In its Order, the Board invited comments on the proposal by the other parties, which were also filed. At a conference call on July 17,1986, the Board and parties discussed, inter alia, a schedule for a hearing and des-ignation of witnesses. On July 21, 1986, the Board issued a Notice of Hearing and an Order (unpublished) establishing a schedule for filing tes-timony, the conduct of evidentiary hearings, and filing of proposed find-ings of fact and conclusions oflaw by the parties. A hearing was held on August 18 and 22,1986, in Philadelphia, Pennsylvania, on the remanded issue.

Proposed Findings of Facts and Conclusions of Law were filed by the Licensee, NRC Staff, Commonwealth of Pennsylvania, and the Interve-nor, LEA. In its Proposed Findings or Fact and Conclusions of Law in its Findings (Nos.13 (pages 13)), LEA raised objections to the schedul-ing of the hearing and complained that it " suffers certain disadvantages in the accelerated hearing process, including reduced preparation time and time for filings. . . ." Ilowever, this complaint is not supported by the record. Indeed, LEA, who did not file any prefiled testimony, in-serted personal activities of one of its representatives as early as the July 17,1986 conference as a bar to preparation for a hearing to be held more than a month later. Mulligan, Tr. 21.139, 21,153. LEA now complains that it could not sample drivers "from a universe of 570 . . ." because PECo reduced the number of volunteers it was providing from 570 to about 200 names. LEA had agreed that it wanted to sample ten of PECo's employees who would be bus driver volunteers. Tr. 21,147, lines

' /J at 497. 322

' /J at $ t t- 19

• Id at $22

• 462 .

l

A N

8-15. How the reduction in number of volunteers was material is unex-plained. No PECo employees were apparently ever deposed; no repre-sentation was made in the hearings of August IS or August 22 that LEA selected ten driver applicants or ever contacted them. The Board notes here these acts as indicative of this Intervenor's raising concerns and

. then having been provided with the opportunity to prepare its case, making inaccurate claims that the very opportunity to prepare is the source of yet another problem. This Intervenor had ample time to have

^,

prepared but did little to provide support for its concerns. Although it is clear to all that the Licensee has the burden of proof, an Intervenor after raising a concern must at least provide something, no matter how small, to explain and support the basis of its concern.

LEA misstated the basis of this remand as ,being concerned with a

" properly conducted statistical survey which caused this bus driver issue to be remanded in the [first) place." LEA Proposed Findings at 2. The Board, however, has interpreted the remand as a concern of the Appeal Board in ALAB 836 that bus drivers be available for the two school dis-tricts in sufficient numbers to effect the evacuation, anJ this we have done. As to the adequacy of bus driver availability, the Appeal Board found a deficiency in the record only with regard to the number of bus drivers for the Owen J. Roberts and Spring Ford Area School Dis-tricts.80 Thus, this Board was not required or authorized by the Appeal Board to explore anew the adequacy of bus driver availability for school districts other than Owen J. Roberts and Spring Ford.

Nor was the

Deard to take further evidence on the adequacy of buses,

as distinct from the availability of drivers, necessary to evacuate the two school districts at issue. For all school districts within the Limerick

+

EPZ, including the Spring Ford Area and Owen J. Roberts School Dis.

, tricts, the Appeal Board has upheld the findings of this Board that there is reasonable assurance of enough buses to evacuate schools in Montgom.

ery County and Chester County.88 Therefore, the Board in this limited remand hearing sustained as proper the parties' objections to questions by LEA which exceeded the scope of this proceeding.

88 /d at $19 20, se 14 se $1215 463 A-

e II. FINDINGS OF FACT A. Development of Licensee's Volunteer Employee Bus Driver Pool

1. Plans to evacuate the Spring Ford Area and Owen J. Roberts School Districts are two aspects of the overall efforts by Common-wealth, county, and local officials, assisted by Licensee and its consult-ants, to maintain adequate emergency planning and preparedness for Limerick. Hoyer and Bradshaw, ff. Tr. 21,189, at 1.

2. Since the close of the record relating to the offsite emergency planning phase of the proceeding, Licensee has continued to cooperate with Commonwealth, county, and local officials in developing additional emergency response resources for all aspects of planning and prepared-ness. These efTorts have included the enlistment of Licensee's employees who have stated a willingness to participate as volunteers in implement-ing various aspects of the offsite plans. M at 2.

3. Following the Appeal Hoard's remand as to whether an adequate number of drivers would be available for the Spring Ford Area and Owen J. Roberts School Districts, the Licensee's representatives dis-cussed how to resolve the remanded issue with the responsible county and Commonwealth officials. Id. at 2 3.

4. Timothy R.S. Campbell is the Director of Emergency Services for Chester County, and A. Lindley Bigelow is the Coordinator of Emergency Preparedness for Montgomery County. Both officials previ-ously testified in this proceeding with regard to offsite emergency plan.

ning and preparedness for their respective counties. As a result of the -

remand, Mr. Campbell and Mr. Higelow met with Licersee's representa-tives and corresponded by telephone with Pennsylvania Emergency Management Agency (PEMA) representatives as to the provision for drivers for the Spring Ford Area and Owen J. Roberts School Districts.

Campbell, Tr. 21.229 30; Higelow, Tr. 21,231 32.

5. At a meeting on June 5,1986, with Licensee's representatives, Mr. Campbell and Mr. Higelow determined that an immediate solution would be for volunteer Licensee employees to qualify and act as bus drivers until the counties or the Commonwealth have obtained drivers from other sources. Mr. Campbell decided that the designated marshal-ling center for volunteers to drive buses for Chester County would be in the Exton area at the Exxon Systems facility in Lionville. Mr. Higelow decided that the designated marshalling center for Montgomery County would be the Licensee's llerwyn Transportation Center. The matter was then discuwed with Ralph J. Ifippert, Director of Plans and Prepared.

ness, PEMA, who agreed to the proposal as an immediate solution.

464

Boyer and Bradshaw, ff. Tr. 21,189, at 2 3; Boyer, Tr. 21,194; liippert, fr. Tr. 21,265, at 2; Campbell, Tr. 21,230; Digelow, Tr. 21,232.

6. In Pennsylvania, a Class 4 driver's license is required for oper-ation of a school bus. There are three prerequisites for obtaining a Penn-sylvania Class 4 license: (1) possession of a Class 4 learner's permit which requires passing a physical examination; (2) classroom and vehicle training; and (3) passing a driver's examination administered by the State Police. Boyer and Bradshaw, ff. Tr. 21,189, at 3.

7. In order to determine the number of employees who potentially

! might wish to volunteer to drive school buses in the event of an emer-gency, Licensee collated a list of volunteer employees who could re-

! spond to bus marshalling centers within a reasonable period. Id.

8. Each volunteer was asked to execute a volunteer sheet. The su.

l pervisors of the volunteers were asked to estimate how long it would take the volunteers to reach the marshalling centers, based upon their knowledge of their personne!'s work locations. Id. at 3 4.

9. Based upon discussions with Licensee's representatives, the re-l sponsible planning agencies agreed that a total of 200 employee volun-teers, to be used by both hiontgomery and Chester Counties, would be more than sufficient to meet any anticipated need for the Owen J. Rob-erts and Spring. Ford Area School Districts. A list of the names of the I remaining volunteer employees is being maintained on file so that in the event they may be needed as replacements for those already trained, they can be made available. Id. at 4; Doyer, Tr. 21,195.

l B, Estimated Need for Additional Drivers l 10. The witnesses proffered by the parties differed to some degree in I their calculation of the potential for unmet driver needs in the Spring-Ford Area and Owen J. Roberts School Districts. Ralph J. Ilippert, now the Director of the OfGce of Plans and Preparedness for PEhlA, previ-ously testified in this proceeding on offsite emergency planning and pre-paredness by the Commonwealth lor Limerick. As the responsible PEh1A official, hir. Ilippert calculated the potential bus driver shortage for the Spring Ford Area and Owen J. Roberts School Districts by con-sutting their respective plans and determining the number of buses avail.

able to those school districts. lie then compared the number of available buses with the results of the bus driver surveys previously conducted by those school districts. By subtracting the number of drivers surveyed who had explicitly stated that they would participate in an emergency from the number of buses available to each district, he determined the .

potential driver shortage. Ilippert, Tr. 21,275 77.

i 465 I

11. Based on his examination of the current Spring Ford Area School District emergency plan, and assuming the validity of a bus driver survey of the Custer Bus Company conducted by Spring Ford Superin-tendent Welliver, hir. liippert calculated that Spring Ford would experi-ence a shortage of no more than twenty eight drivers in the event of a school evacuation because of a radiological accident at Limerick.

Ilippert, ff. Tr. 21,265, at 1.

12. Based on his examination of the current Owen J. Roberts School District plan, and assuming the validity of a bus driver survey conducted at the request of the Owen J. Roberts Citizens Task Force of the Gross Dus Company drivers, hir. Ilippert calculated that Owen J. Roberts would experience a shortage of eight bus drivers if a school evacuation were necessary. Id. at 2.

13.

Thus, accepting the results of the bus driver surveys for the Spring Ford Area and Owen J. Roberts School Districts, Afr. Ilippert determined that there would be a shortage of thirty six drivers for the buses routinely provided by the two bus companies surveyed. Licensce's employee driver pool is more than five times this number. Id.t liippert, Tr. 21,266 67.

14.

Another calculation of the maximum number of bus drivers who would be required to replace regularly ssigned drivers for the Spring.

Ford Area and Owen J. Roberts School Districts in the event of an emergency at Limerick is the difference between the number of previ-ously surveyed drivers who explicitly stated that they would drive buses in an emergency and the total driver force for those districts. This results in a maximum unmet need of fifty two bus drivers for the two school districts and produces about a 4:1 ratio between Licensee's volunteer drivers and unmet driver needs for Spring Ford and Owen J. Roberts.

Asher and Kinard, (f. Tr. 21,279, at 3; Kinard, Tr. 21,284 85. FEh!A would find satisfactory an arrangement for a volunteer driver pool which would provide a til ratio between volunteers and reported unmet needs for drivers. Kinard, Tr. 21,284.

15. Licensee has coordinated its bus driver employee efforts with the Chester County Department of Emergency Services and the Afontgom-cry County Office of Emergency Preparedness. Both counties have agreed to the program for the use of Licensee's employee volunteers to receive Class 4 bus driver training and respond in the event of a radio-logical emergency at Limerick and will enroll the volunteers as emer-gency management volunteers. Doyer and Dradshaw, ff. Tr. 21,189, at 4-5; Campbell, Tr. 21,246, 21,230-31; Digelow, Tr. 21,232, 21,249.

466

.?

I

(

C. Employ te Bos Driver Tr7;a'ag ans Qualification ,

s

16. Initially, instructor trnining was provicPd by the Chester Coun'y Intermeaiste Unit, which is a regimi govanmet ta! cooperative that provides services to locul school districts f.icensee and vendor employ-ees received training as irntructors which qm.lifies them to teach other driver volunteers. Training of twenty-one instructors began July 15, i 1986, and was completed July 23, 1986. These instructors hase con.

ducted classroom training of other volunteers in groups of approxirustdy thirty. The State Police bsve conducted Class 4 driver tests at Berwyn.

- The training of all voluntr.ers has inctuded the same training offered drivers for all school distr'. cts and school bus providers. (See Appl. Exh.

E-64, Training Module for Bus Drivers.) Boyer and Bradshaw, ff. Tr.

2 21,189, at 5.

17. The schedule for trair.mg a.vi testing is as follows: two groups j totaling fifty four volunteers compicted training August 8,119M; two

' other groups totaling forty seven comgileted training on August U,1986; and four other groups totslin,t sixty stx will have completed training in f August 1986. The rematader totaling thirty three will complete training in September 1966, subject to possible unavailability due to illness or  ?

other reason. Driver testing sessions were conducted by the State Police -

on August 11 and 18,1986, and groups of twenty thrtet and thirty five volunteers were issued Class 4 licenes. Forty five were scheduled for driver testing on August 25, 1986. As of August 22, 1986, 155 had com-pleted training. Driver testing will et ntinue into September as classroom training is compte ed. Boyer and Dr.sdshaw, ff. Tr. 21,189, at 5; Boyer, ,

Tr. 21,197; Boyer, Tr. 21,296.

, . 18. Licensee anticipates that appreximately three quarters of the 200 l

volunteer driver pool wlit be trained, tested, and qualified by the end of .

August, i.e., prior to the stem of school after Labor Day. Driver testing of othtrs who could not be scheduled because of work assignments'or i vacations will be <omp'. ted in early Septemli:r. Sobr, Tr. 21,197 98 Licensee expects to hr e the total pool of 200 empayee volunteers trained and qualilled by mid September. Boyer, Tr. 21,198. 21.h7.

19. At the hearing, the responsible FEMA officials revi:twed Licens-ce's driver training and qualification schedJit and istprett<.d '. heir prof's .

J sional opinion that FEMA's conclusions of reasonatic usucance would not be affected by the updated testimony on driver trair'ng and ccat'ng '

provided by Licensee. Kinard, Tr. 21,289. In the judgmen'. of t'.ose ofil.

l cials, there is no probl-m if less than the total of 200 voftuteer employ-ces are trained and qualified by the start of school in p86. Kinard, Tr. (

l 21,283. ,

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i M.1 ,

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J  ; ,

i ij t ll, .

i

- 8 Lt

D. Time Response Estimates

• 20. Since the 200 volunteers could be used for either Chester or Montgomery County, Licensee has developed estimates of the time re-quired for the volunteers to report to both Exxon and Berwyn. Licensee determined that 55 could reach Exxon (in Chester County)in 30 minutes or less; an additional iII within 30 to 60 minutes; and 34 more within 60 to 90 minutes. For Berwyn (in Montgomery County),148 would be available in 30 minutes or less; an additional 27 within 30 to 60 minutes; and 25 within 90 minutes. Doyer and Bradshaw, ff. Tr. 21,189, at 6.

21.

In soliciting volunteers, Licensee attempted to select as many vol-

' unteers as reasonable from its Berwyn Transportation Center, because those volunteers would be immediately available. Boyer, Tr. 21,213-14.

Fifty-five volunteers of the 200 driver pool are regularly stationed at Derwyn and would therefore be immediately available. Boyer and Brad-shaw, ff. Tr. 21,189, at 6. In the event of an emergency at Limerick, Chester and Montgomery Counties will contact Licensee so that drivers will be in place, even before the counties have determined whether any unmet need exists. Campbell, Tr. 21,245; Bigelow, Tr. 21,247.

22.

As volunteers, Licensee's employees are county emergency work-ers and it is theretore the responsibility of the county to transport the volunteers to bus locations. Nonetheless, Licensee will coordinate with each county and assist upon request in transporting its volunteer drivers to the buses. Boyer, Tr. 21,215; Kankus, Tr. 21,217. LEA solicited testi-mony regarding, buses which may be taken home by a number of the regularly assigned drivers for the Owen J. Roberts School District. Dr.

Claypool confirmed in his testimony that he had, however, considered this particular practice in evaluating the bus driver survey results and calculating overall bus driver needs. Claypool, Tr. 21,339, 21,341. The number of buses reported as available from the Gross Bus Company in the Owen J. Roberts School District RERP, dated December 30,1985, is 26 (out of 43). liippert, ff. Tr. 21,265, at 2.

E. Ongoing Availability of Licensee's Employee Bus Driver Pool 23.

Licensee has committed to Montgomery and Chester Counties

' that it will make its bus driver employee volunteers available under the arrangements discussed above until provision is made by the responsible planning authorities for bus driver personnel from other sources. Ac.

cordingly, Licensee's arrangements will remain in full force ar.d effect until notification that Licensee's employee volunteers are no longer re-

. quired. Doyer and Bradshaw, ff. Tr. 21,189, at 6; Doyer, Tr. 21,221,

r .

t i'-

j 21,227; Hippert, ff. Tr. 21,265, at 3. Each volunteer employee under-stands that he is agreeing to be available indefinitely until replaced by some other source of drivers. Boyer, Tr. 21,218.

24. Licensee's Director of Emergency Preparedness will be advised by the Personnel Department whenever a volunteer retires, dies, or oth-erwise leaves the employment of the Company. Kankus, Tr. 21,224.

~

' Also, Licensee's bus driver volunteer list will be reviewed periodically in a manner similar to which Licensee's onsite emergency worker list.is

- .' routinely reviewed. This will ensure that individual employees are con-i-i,- .

tacted by their supervisors to determme that they Eontinue to be avail-4 C .

able for volunteer service. Volunteer lists for offsite emergency plans are e

updated on an annual basis and Licensee will probably 'cIlow the same schedule for its bus driver volunteers.14. 3 1

25. Licensee intends to continue its training and qualification pro-gram to obtain about 220 Class 4 drivers. This will provide a reserve to replace volunteers who transfer, retire, or are otherwise unavailable.

L Boyer,Tr. 21,212, 21,220.

26. In his capacity as an employee.and Senior Vice President-Nu-clear of the Philadelphia Electric Company, Mr. Boyer has had extensive experience with its employees. He expressed confidence that if an em-ployee has stated that he will participate in an emergency response by ,

driving a bus in the event that school evacuation is required, he will do t so. Boyer, ff. Tr. 21,189, at 6.

I

27. FEMA testified that the volunteer driver pool made available by

! Licensee and agreed to by PEMA provides reasonable assurance that, in the event of an emergency at the Limerick Generating Station, an ade-

]

p quate number of volunteers will be available to fill .any unmet needs for  ;

. bus drivers in the Owen J. Roberts and Spring-Ford Area School Dis-

- ' tricta Asher and Kinard, ff. Tr. 21,279, at 4; Tr. 21,282-83.

28. Dr. Welliver on behalf of the Spring-Ford Area School District

., and Dr. Claypool on behalf of the Owen J. Roberts School District testi-fied that they had discussed their bus driver surveys with their respective county planning representatives and received adequate assurance that a

• sufficient number of drivers would be provided in the event of an emer-gency. Welliver and Claypool, Tr. 21,316-18. An early dismissal of stu-dents tcc their homes by the Owen J. Roberts School District, prelimi-z .

nary to an actual evacuation'or !er, wotid utilize the school district's regularly assigned drivers and buses, and would not rely on Licensee volunteers to drive the buses. Claypool, Tr. 21,322 26. Hence, the Board I finds that this procedure is not relevant to bus driver availability to carry out an evacuation ordered by the responsible Commonwealth or county 1-

?, ' ' - - , ofTicial.

469 l

. .J

, . - - . = _

w . . . . , . . - - .-

$.- 29.

Based on the arrangements by Licensee to make available a pool 3

'of 200 volunteer employee drivers, there will be far more than enough '

- volunteer bus drivers to provide support to the Chester County and

!, Montgomery County. emergency planning agencies as' needed for the

' Owen J. Roberts and Spring-Ford Area School Districts in the event I.

• regularly assigned drivers fail to respond. Boyer and Bradshaw, E Tr.

21,189, at 6-7; Hippert, E Tr. 21,265, at 3; Hippert, Tr. 21,267-68; Asher

- ~

...' and Kinard, E Tr. 21,279, at 4.

F. ' Additional Sources of Bus Drivers e

~ .,,

30.

Even before creation of Licensee's volunteer employee driver i pool, Montgomery and Chester Counties could have satisfied any unmet needs of the Spring-Ford Area and Owen J. Roberts School Districts, respectively, from other sources. Bigelow and Campbell, Tr. 21,263.

31.

While the availability of volunteer bus drivers from Licensee's ,

employee force provides reasonable assurancc of bus driver availability for the Spring-Ford Area and Owen J. Roberts School Districts, Licens- _

ee's provision ofits volunteer employees as bus drivers is but one tool of i

many that will be utilized by the counties to meet the unmet needs of their municipalities. Because emergency planning is a dynamic process, j-other resources may become available. Campbell, Tr. 21,237-38.

32.

- The Montgomery County Office of Emergency Preparedness has ',

surveyed all bus providers, public and private, in Montgomery County.

It has either written or verbal assurances that those providers will, to'the best 1 of their availability, provide buws and drivers .upon request.

' Bigelow, Tr. 21,254. On this basis, the current Montgomery County plan I -

lists total resources for all school districts in the EPZ and their bus pro-i viders as 1783 vehicles with 1919 full- or part-time drivers. These re.

• ported assets far exceed evacuation requirements of $34 vehicles and

, . - drivers for the entire transportation-dependent population of Montgom-

! ery County within the Limerick EPZ. Hippert E Tr. 21,265, at 4; .

Bigelow, Tr. 21,254.

3 33.

Similarly, other arrangements could be made for Chester County i

schools within the Limerick EPZ to optimize utilization of school dis- .

- trict bus and driver resou'ces r and thereby eliminate the necessity for Li-censee's driver pool. The Dir -mr of Emergency Services for Chester County is conducting a survey to obtain additional volunteer drivers from fire companies whose personnel are not otherwise assigned respon-I sibilities under- their municipality's emergency plan.- Bradshaw, Tr.

21,221; Campbell, Tr. 21,238.

s 470 4

I l

I

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

i 5

i_ 34. The Downingtown School District lies outside the EPZ, but has 3

students who live within the EPZ. Downingtown is under contract with

< a private bus company for fifty-seven buses. By delaying its normal dis-missal time, Downingtown could make its buses and drivers available to satisfy any shortage for the Owen J. Roberts School District. Indeed, Downingtown's bus provider is already under agreement with Chester

- County to supply school buses and drivers upon request. Hippert, ff. Tr.

21,265, at 4-5; Campbell, Tr. 21,252-53; Appl. Exh. E-51.

' G. Alleged Conflicts la Volunteer Responsibilities

35. LEA raised the potential for conflicting responsibilities if some b .

employee volunteer drivers have already agreed to serve as a volunteer in some other capacity in a radiological emergency. The Board is satis-fled, however, that Licensee has adequately ensured against this contin-gency. As volunteer employee forms came in from the various field of-fices, they were reviewed at Licensee's headquarters against current mu-nicipal emergency plans to determine whether any volunteer driver was already a volunteer at any municipal emergency operations center.

Kankus, Tr. 21,201; Bradshaw, Tr. 21,209.

36. As to other forms of volunteer service, such as a radio operator, ambulance driver, or fireman, there is no potential problem with dual re-i sponsibilities in the event of a radiological emergency at Limerick.

During bus driver training, the instructors discuss various offsite emer-gency responsibilities with the trainees. To date, with about half of all volunteers trained, the instructors have not encountered a single instance in which a trainee has a conflicting responsibility. Bradshaw, Tr. 21,209.

37. Additionally, it is not Licensee's policy to release its employees to perform volunteer services in their home towns, for example, to fight fires. Kankus, Tr. 21,204; Bradshaw, Tr. 21,209 10. Therefore, local fire companies, ambulance services, and the like are not presently including Licensee's employees as those who would be available under local emer-gency plans. Kankus, Tr. 21,205.

- H. Conclusion

38. Based on the evidentiary record before us, this Board finds rea-sonable assurance that, in the event of a radiological emergency at the I Limerick Generating Station, there will be an adequate number of bus drivers to effectuate an evacuation of the Owen J. Roberts and Sprmg- l Ford Area School Districts.

P

' 471 e

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4 E

,- III. CONCLUSIONS OF LAW In reaching this Decision, the Board has considered all the evidence of the parties and the entire record of this proceeding on the remanded bus driver availability issue, including all proposed findings of fact and con-clusions of law filed by the parties. Based upon a review of that record and the foregoing Findings of Fact, which are supported by reliable,

- probative, and substantial evidence, the Board, with respect to the issue

, in controversy before us, reaches the following conclusion pursuant to 10 C.F.R. 9 2.760a:

Licensee's arrangements for maintaining a pool of 200 or more bus drivers to assist in an evacuation of the Owen J. Roberts and Spring-Ford Area School Districts, in conjunction with plans and resources already in place that would be utilized by the responsible

> county and school district authorities, meet the requirements of 10 -

4 C.F.R. 9 50.47, and Appendix E to 10 C.F.R. Part 50, as well as the criteria of NUREG-0654, and provide reasonable assurance that ade-

. quate protective measures for those school districts can and will be taken in the event of a radiological emergency.

1 IV. ORDER WHEREFORE, in accordance with the Atomic Energy Act of 1954, as amended, and the Rules of Practice of the Commission, and based on

[ the foregoing Findings of Fact and Conclusions of Law, IT IS OR-DERED that:

4 Pursuant to 10 C.F.R. f 2.760(a) of the Commission's Rules of Prac-tice, this Supplement to the Third Partial Initial Decision will constitute

s

' ' the final decision of the Commission forty-five (45) days from the date of issuance, unless an appeal is taken in accordance with 10 C.F.R. 5 2.762 or the Commission directs otherwise. See also 10 C.F.R. ff 2.764, 2.785, and 2.786.

Any party may take an appeal from this Decision by filing a Notice of Appeal within ten (10) days after service of this Decision. Each appellant must file a brief supporting its position on appeal within thirty (30) days after filing its Notice of Appeal (forty (40) days if the Staff is the appel-lant). Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants (forty (40) days in the case of the Staff), a party who is not an appellant may file a briefin support of or in opposition to the appeal of any other party. A responding party 472 4

.s .. .

~

shall file a single, responsive brief regardless of the number of appellant briefs filed. See 10 C.F.R. I 2.762(c).

IT IS SO ORDERED.

THE ATOMIC SAFETY AND

. LICENSING BOARD

~ Helen F. Hoyt, Chairperson

' ~~' .,' ADMINISTRATIVE JUDGE

'f'

. ' d

' Richard F. Cole ADMINISTRATIVE JUDGE Jerry Harbour ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland,

- this 5th day of September 1986.

s as M

i 473 l

d Cite as 24 NRC 474 (1986) LBP 86-33 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD p

Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. Jerry Harbour Gustave A. Linenberger In the Matter of

, ~

Docket Nos. 50-329-OL&OM 50-330-OL&OM (ASLBP Nos. 78-389-03-OL 80-439-02-SP)

' CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2) September 26,1986 Upon motion by Consumers Power Company to dismiss the operating

- ' license (OL) proceeding and to terminate the Order of Modification

' (OM) proceeding, the Licensing Board dismisses the OM proceeding as moot (subject to a condition) and defers action on the motion insofar as it seeks dismissal of the OL proceeding, pending preparation by the Staff of an environmental assessment and consideration of that assessment by parties and the Board.

LICENSING BOARD: DELEGATED AUTHORITY After issuance of a Notice of Hearing in a proceeding, a licensing board may impose terms or conditions on the withdrawal of an applica-tion and dismissal of a proceeding. Where no hearing is requested on an application, withdrawal of that application is within the jurisdiction of the Staff.10 C.F.R. 9 2.107(a).

474 i

s -

, n -

NEPA: ENVIRONMENTAL ASSESSMENT The NRC Staff must prepare an Environmental Assessment pursuant to 10 C.F.R. I 51.21 on the requested withdrawal of an operating liciense appEcation.

RULES OF PRACTICE: MODIFICATION OF CONSTRUCTION PERMITS A proceeding involving the proposed enforced modification of con-

- o struction permits becomes moot when the NRC Staff (the party initially

- seeking relief under a Modification Order) and other parties no longer seek further relief under such order.

MEMORANDUM AND ORDER (Motion to Dismiss / Terminate Proceedings)

Pending before this Board is a motion by Consumers Power Co.

(CPC) to dismiss the operating license (OL) proceeding and to terminate

, the Order of Modification (OM) proceeding for the Midland facility. For reasons set forth below, we are dismissing the OM proceeding as moot and are deferring action on the motion insofar as it seeks dismissal of the OL proceeding.

I. BACKGROUND There are two adjudicatory proceedings involving the Midland Plant, Units I and 2, which are presently before this Board. The first is CPC's application for operating licenses for that facility (OL proceeding). The Notice of Hearing for that proceeding was published on October 18,

- 1978(43 Fed. Reg. 48,089), and was supplemented by our Special Pre- i i

hearing Conference Order dated February 23,1979 (unpublished), which accepted a number of contentions for litigation. The second proceeding arose out of the Staff's " Order Modifying Construction Permits," dated December 6,1979 (OM proceeding). That r.djudicatory proceeding for-mally corrmenced through a Notice of Hearing published on March 20, 1980 (45 Fed. Reg.18,214), supplemented by an " Amended Notice of Hearing" published on May 28, 1980 (45 Fed. Reg. 35,949) and by our initial rulings on contentions at the special prehearing conference of Sep- (

tember 10,1980 (Tr. 398). Because the issues in the OM proceeding were factually similar to several issues previously accepted for litigation in the I 475 l

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' OL proceeding, at the request of CPC we consolidated the OM proceed-ing with relevant issues in the OL proceeding. Prehearing Conference Order Ruling on Contentions and on Consolidation of Proceedings, dated October 24,1980 (unpublished).8 By letter dated September 10,1984 (which confirmed an earlier tele-phone communication), CPC advised that in late July 1984 it had deter.

mined to hah all construction at Midland because ofits inability at that time to finance the project. CPC did not withdraw its OL application or

" surrender" its construction permits because its plans were not definite and it wished to " preserve its options." For that reason and despite the

- potential mootness of the issues before us (on which we had not yet ruled), we issued a Partial Initial Decision on some of the technical issues that had been extensively litigated and, if the project should ever be re-vived, might have some continuing applicability. LBP-85-2, supra.

CPC has now determined that it will not attempt to restart construc-tion and will abandon the Midland Plant as a nuclear project. On July 11,1986, it filed a motion seeking authorization to withdraw its operating license application, dismissal of the OL proceeding, and termination of

• the OM proceeding as soon as CPC's withdrawal ofits request for exten-sion ofits construction permits (pending before the NRC Staff) becomes effective (" Motion"). Simultaneously, CPC filed with the Appeal Board a motion for termination of that Board's jurisdiction over certain aspects of the Midland proceeding.2 Upon receipt of CPC's Motion, we posed four questions bearing upon the Motion to the parties. Order (Responses to Motions to Dismiss /Ter-minate Proceedings), dated July 16,1986 (unpublished). One of these questions concerned the requested termination of the OM proceeding; the other three questions bore on the environmental aspects of the re-quested dismissal of the OL proceeding.

On August 15, 1986, CPC filed its response to our four questions. On August 25, 1986, the NRC Staff filed its response both to CPC's Motion and to the questions we had posed. Neither the present Intervenors nor the State of Michigan has responded either to CPC's Motion or to our

, questions.

8 A more complete procedural history of the two proceedings appears in our Partial Initial Decision (Remedial soils Inues). dated January 23.1985. LBP-85-2. 21 NRC 24,3435, i14-22 nrcated as moor.

ALAB-842, 24 NRC 197 (1986), review decimed by Commmion, Memorandum to Board and Parties dated september 12.1986 tunpubinhed).

.,

• The only one of these aspects beanng on matters before this Board was the Appeal Board's sua sponte review of LBP-85 2. supm. which had not been appealed by any party.

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• In the meantime, the Appeal Board granted CPC's motion for termma-tion of that Board's jurisdiction. In doing so, it vacated LBP-85-2.8 The

-. Appeal Board stated that this Board was now free to consider CPC's withdrawal / termination Motion; and it directed us, in considering the  ;

Motion, "to determine whether any conditions should be imposed upon" any termination or disnussal. ALAB-842, supra, 24 NRC at 199.

With respect to conditions, we are governed in both proceedings by 10 I

'$ C.F.R. I 2.107(a), which provides:

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$ 2.1M Withdrawal of mM (a) The r'a====nna may permit an apphcant to withdraw an appbcanon prior to

- the issuance of a notice of hearing on such terms and conditions as it may presenhe.

_~ or may, on receiving a request for withdrawal of an applicanon, deny the applica-tion or dismus it with prejudice. Withdrawal of an application aAer the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe.

i (Emphasis supplied.) As indicated above, notices of hearing have been i issued in both the OL and OM proceedings. We will deal with the re-quested dismissal or termination of the two proceedings seriarim. -

II. OL PROCEEDING r

4 In its Motion seeking dismissal of the OL proceeding, CPC asserts (with supporting affidavit) that the plant is inoperable as a reactor, and

- no further steps are necessary to disable it as a nuclear utilization facility.

It states that steps were taken to stabilize the site after the 1984 halt of j construction. Further, it expresses its intent to convert the facility to a

! combined-cycle gas-fired generating plant, although it concedes that it '

- has not yet received the necessary regulatory approvals for that course of action. In that connection, it asserts that such facility will utilize the j

existing cooling pond and associated facilities; that CPC has developed and implemented a cooling pond maintenance program which the Michi-

~

gan Department of Natural Resources has approved; that CPC maintains

- its NPDES permit; and that no further site environmental alterations are

. necessary.

CPC seeks dismissal of the OL proceeding "without prejudice" and without any further conditions. In responding to our questions, however, CPC notes that licensing boards have typically adopted conditions agreed upon by the Applicant and the Staff as part of a termination 8 such acten was in accord with Appeal Board ruhngs in other cases. While the vacating of our Partial Instial Decmon deprives that decision of precedential sigmfacance, we beheve that the dancusson and ruhngs therem were correct and may serve as useful guulance in some contexts. See also note I, supre.

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order, leaving supervision of implementation to the Staff (CPC August 15,1986 Response at 8).

In responding to CPC's Motion and our questions, the Staff has indi-cated that it is in the process of preparing an environmental assessment

' pursuant to 10 C.F.R. 5 51.21 concerning the proposed withdrawal of the operating license application. By letter dated August 21,1986, the Staff posed questions to CPC on the environmental aspects of project termina-3 tion.4 It indicates that environmental conditions, if necessary, will be de-signed to ensure the stabilization of the site. The Staff recommends that we hold CPC's Motion in abeyance pending completion of the Stafi's review of CPC's stabilization plan and the receipt of the views ofinter-

, ested parties.

! As noted above, CPC recognizes that licensing board adoption of ter-1 mination conditions agreed upon by an Applicant and the NRC Staff would be appropriate. Through its preparat:on of an environmental as-l, sessment, the Staffis developing conditions which it believes appropriate

j. for a termination order. Under those circumstances, and absent any cur-4 rent recommendations by the Intervenors or the Sta:e of Michigan, we agree with the Staff that (insofar as the OL proceeding b concerned) we i should defer action on CPC's Motion, pending preparation of the Staff's assessment and receipt of comments (if any) on that assessment by other i parties (including CPC). We are adopting that course of action. Parties may file with us comments on the StalT's assessment within 30 days after

,i service of such assessment.

i III. OM PROCEEDING The OM proceeding is a type of enforcement proceeding brought by

[ the NRC Staff pursuant to 10 C.F.R. 5 2.204. The Staff sought to amend the outstanding construction permits to incorporate certain remedial pro-visions for correcting onsite soils settlement conditions and the manage-ment activities which allegedly led to those conditions. The Modification Order, issued on December 6,1979, would have become effective absent a request for a hearing by CPC. CPC in fact requested the hearing. The relief spelled out in ~the Modification Order is the maximum to which CPC could be subject in the OM proceeding. Public Senice Ca ofIndi-ana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980). If CPC had not requested a hearing, that maximum relief would have been imposed.10 C.F.R. f 2.204.

• Copies of these quesuons have been provided to the Board and parties. -

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-- In our Memorandum and Order dated April 30,1982, LBP-82-35,' 15

-i NRC 1060, we put into effect, on an interim basis, certain of the relief sought under the Modification Order. On May 26,1982, the construction

+ ' permits were amended to incorporate (as Amendment No. 3) the condi-tions specified by LBP-82-35. Among other matters, those conditions re-

_ , quired CPC to obtain Staff approval before undertaking soils-related con-

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struction activities. We left those conditions in effect in LBP-85-2, supm.

In seeking to terminate the OM proceeding..CPC indicates that, by

. l letter to the Staff dated July 1,1986 (copies of which were served upon v ,. '. us and the parties), it has requested withdrawal of its pending prior re-

. q quest for extensions of the construction completion dates set forth in its

,, construction permits.8 (Because no hearing was requested with respect to

7. . 4 the extensions, withdrawal of that application is within the jurisdiction of the Staff, not a licensing board.) CPC reasons that, when its withdrawal request is granted by the Staff, its construction permits will be deemed to

' have expired or lapsed; and that, since the only relief available in the OM proceeding is construction permit amendment, the lapse of the per-mits renders the OM proceeding moot. CPC asks us, upon notification:

. by the Staff that CPC's withdrawal request has been granted..to termi-

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nate the OM proceeding as moot.

~

. Inasmuch as the Staff was the party seeking the construction permit ,

i modification in the OM proceeding, and thus could provide insight as to i- whether the OM proceeding is truly moot, we posed a question to the parties in our July 16,1986 Order, supm. inquiring whether CPC's l

Motion (with respect to the OM proceeding) might be regarded as a

! _ withdrawal of CPC's request for a hearing, thus resulting in an amend-ment of the construction permits (at least on a pmforma basis) to incor-porate the terms sought by the Modification Order. In their responses,

- both CPC and the Staff oppose terminating the OM proceeding in that manner.

CPC asserts that enforced withdrawal of CPC's request for an OM

hearing would be both inappropriate and potentially prejudicial to CPC.

it stresses that we have already found in substance that there was an ade-quate basis for the Modification Order (Tr.1174) and that, in LBP-82-35, r

supm, we granted all of the substantive relief sought by the Order (elimi-

' - nating only some of the procedural provisions that we had found unnec-essary). See LBP-85-2, supm, 21 NRC at 35. CPC stresses that the Order imposed as a result of LBP-82-35 (incorporated as Amendment 3 of the

.

• That pnor request, filed on september II.1984. sought to entend the completion dates of (Jnits I and

.' - 2 from December I.1984, and July 1.1984 respectively, to December 1.1989, and July 1.1989. Al.

t' though the stafr has not acted on the request. the construction permits remam in effect pursuant to 10 C.F.R. I 2.109.

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construction permits) has never been rescinded. On the other hand, CPC d_ points out that there were facts alleged in the Modification Order which have not been covered by any stipulations and 'which have neither been E admitted by CPC nor litigated; and that any defacto admission, which might attach to our placing the Modification Order fully. into effect, might harm CPC in other fora in which proceedings are pending or t

might arise in the future, For its part, the Staff finds no reason to require the issuance of an

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amendment to an expired or expiring permit. It states that CPC is not

- - withdrawing its hearing request because it agrees with effectiveness of the enforcement order imposed by us in LBP-82-35. The Staff adds that

' we need not wait to terminate the OM proceeding until the Staff acts on

' CPC's request for withdrawal of the construction permit extensions. The Staff states that we may impose conditions subject to Staff review (and, presumably, Staff enforcement).

Given the Staff's acknowledgment (as the party initially seeking the effectiveness of the Modification Order) that it is no longer seeking fur-

. ther relief under that Order, and absent opposition by any party to the L

proposed dismissal, we regard the OM proceeding as moot. We are thus 1 able to dismiss it at this time on that basis.

l As for conditions, we note that a considerable amount of construction work was commenced, although not completed, to alleviate the soils 4

conditions which gave rise to the Modification Order. As one example, the auxiliary building underpinning is only partially complete. We would

expect the Staff to assure that partially completed structures would cause

no danger to the public or to site users. For the imposition of such con-ditions at this stage of the OL proceeding, the Staff's (and our) authority in this regard stems from environmental responsibilities, not from public health and safety responsibilities under the Atomic Energy Act. Since l

~ our environmental responsibilities in the OL proceeding encompass these matters, our dismissal of the OM proceeding does not deprive us of juris-j diction to impose further conditions of this type, should they be war-ranted.

l Finally, both CPC and the Staff have relied upon the continued effec-

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tiveness of the conditions included in Amendment 3 to the construction permits and imposed by virtue of LBP-82-35, supra, as a reason for not l

treating CPC's Motion as a withdrawal of its hearing request. At this

'. point, we have no way of knowing whether CPC will receive necessary regulatory approvals to convert the Midland Plant to a combined-cycle L

gas-fired generating facility. We also are unsure whether CPC, if it

- - should change its plans, could seek to resurrect its expired construction permits. Cf Texas Utilities Electric Ca (Comanche Peak Steam Electric 480

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- Station, Unit 1), CLI-86-4,23 NRC 113 (1986). In any event, we strongly i

believe that, if further construction under the construction permits were to take place, Amendment 3 should remain in effect. Our dismissal of the OM proceeding is conditioned on the continuing effectiveness of Amend.

' ment 3 to the extent further activities are undertaken under the construc-tion permits.

For the reasons stated, and on the basis of the entire record, it is, this 26th day of September 1986,

. ~

- - ORDERED:

1. That the OM proceeding is dismissed as moot, subject to the con-dition set forth above.

• " -

• 2. That action on CPC's Motion seeking authorization to withdraw

^

the OL application and dismissal of the OL proceeding is deferred pend-

' ' - ing preparation by the Staff, pursuant to 10 C.F.R. I 51.21, and consider-ation by this Board of an environmental assessment.

3. Parties shall have 30 days from the date of service of the Staff's environmental assessment to provide comments to us on that assessment.

1. , (At the Staff's request, we will permit the Staff to reply to any such

.  ! comments.)

, 4. In accordance with 10 C.F.R. Il 2.760, 2.762, 2.764, 2.785, and 2.786, insofar as this Order dismisses the OM proceeding, it shall become effective immediately and will constitute the final decision of the Com-mission thirty (30) days after issuance hereof, subject to any review pur-suant to the above-cited Rules of Practice. Any party may take an appeal from the rulings applicable to the OM proceeding by filing a Notice of ,

l Appeal within ten (10) days after service of this Memorandum and Order. Each appellant must file a brief supporting its position on appeal

' - within thirty (30) days after filing its Notice of Appeal (forty (40) days if-the Staff is the appellant). Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants (forty (40) days in the case of the Staff), a party who is not an appellant may file a brief in support of, or in opposition to, any such appeal (s). A responding l

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party shall file a single, responsive brief only, regardless of the number of appellants

• briefs filed.

THE ATOMIC SAFETY AND LICENSING BOARD Jerry Harbour ADMINISTRATIVE JUDGE Gustave A. Linenberger 4

ADMINISTRATIVE JUDGE Charles Bechhoefer, Chairman

. ADMINISTRATIVE JUDGE I

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Cite as 24 NRC 483 (1986) DD-8612 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Harold R. Denton, Director i

in the Matter of Docket Nos. 50-275 50-323 PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) September 30,1986 The Director of Nuclear Reactor Regulation denies a request by the Government Accountability Project, filed on behalf of Timothy J.

O'Neill and James L. McDermott, that further licensing actions be de-

. ferred or the licenses be suspended for the Diablo Canyon facilities pend-ing resolution of numerous allegations of inadequate design, construction, and management of the facilities and intimidation of personnel by Li-cer.see management.

DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206 INTRODUCTION AND BACKGROUND Thomas Devine of the Government Accountability Project (GAP), on behalf of Timothy J. O'Neill and James L. McDermott, filed a request on July 27,1984, pursuant to 10 C.F.R. 9 2.206 of the Commission's reg-ulations, that the Nuclear Regulatory Commission (NRC) defer further licensing actions on the Diablo Canyon Nuclear Power Plant (Diablo Canyon, the Plant). Specifically, the Petitioners requested that the au-thorization of commercial operation of Unit I and further licensing ac-tions on Unit 2 be deferred pending the completion of specific items for j l

483 1

which relief was requested. Supplemental documents were filed by the Petitioners on July 29, 30, and 31,1984; an Amendment to the Petition was filed on November 16, 1984, and a Supplement to the Petition was filed on March 14, 1985. In accordance with the Commission's usual practice, the Petitioners

• request was referred to the Staff for appropriate action. The bases for the requested actions are numerous allegations. con-tained in affidavits by individuals, relating to alleged inadequate design, construction, and management of Diablo Canyon, in particular with re-spect to quality assurance program implementation practices, alleged per-sonnel intimidation by the Licensee management, and alleged improper investigation and evaluation of allegations by the NRC Staff.

On August 20, 1984, the Director, Office of Nuclear Reactor Regula-tion, issued an Interim Decision regarding the Petition of July 27,1984.

See DD-84-19, 20 NRC 773 (1984). The decision denied the aspects of the petition dealing with the requested deferral of any licensing action on Diablo Canyon, and stated that a final determination regarding the cir-cumstances of the termination of the employment of Mr. O'Neill and Mr.

McDermott with a contractor for the Pacific Gas and Electric Company (PG&E) would be made upon completion of investigations by the Office of Investigation (01).

On January 11, 1985, the Director responded to the November 16, 1984 Amendment to the Petition and concluded that the Amendment did not reveal any new information necessitating a major reinvestigation of the Diablo Canyon plant or circumvention of the NRC's Region V office (this aspect was discussed in detail in a letter, dated September 24, 1984, from the NRC's Executive Director for Operations to Thomas Devine of GAP).

On April 16, 1985, the Director responded to the Supplement of March 15,1985, to the Petition. In a letter dated May 15,1985, the Di-rector provided a status of the NRC's investigations, reviews, and eval-uations of all allegations. The letter stated that allegations concerning im-proper conduct by the NRC Staff had been referred to the NRC's Office of Inspector and Auditor (OIA), allegations concerning harassment and intimidation of workers at the plant had been referred to the NRC's Office of Investigations (01), and that the status of the Staff's evaluation of individual allegations, in particular the technical aspects, was docu-mented in Supplernent No. 28 (SSER-28) to the Staff's Safety Evalua-tion Report (NUREG-0675). In summary, the letter concluded that com-plete resolution of all allegations was not necessary prior to the licensing of Unit 2 and that there was no need for an immediate suspension of the

! Unit 1 operating license.

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i-CONSIDERATION OF ALLEGATIONS IN DIABLO CANYON LICENSING The Staff evaluation of allegations submitted by GAP and other sources since early 1983, including concerns regarding small- and large-bore piping and pipe supports, has been documented throughout the li-

, censing process for Diablo Canyon Units I and 2 in the following Sup-

- plements (SSERs) to the Staff's Safety Evaluation Report (NUREG-0675): SSER 21 (December 1983), SSER-22 (March 1984), SSER-25

, (July 1984), SSER-26 (July 1984), SSER-28 (August 1985), SSER-30 (April 1985), and SSER 33 (May 1986).

. The NRC Staff briefed the Commission on the status of its evaluation of allegations prior to the Commission's decisions regarding the major li-censing steps for Diablo Canyon Units 1 and 2. In its Memorandum and Order dated August 10, 1984, the Commission authorized issuance of a full-power license for Unit 1. See CLI-84-13, 20 NRC 267 (1984). The decision included the following considerations:

(1) Regarding allegations on small- and large-bore piping and pipe supports, including license conditions resulting, in part, from concerns expressed by an NRC inspector, the Commission ac-cepted the Staff and Advisory Committee on Reactor Safe-guards (ACRS) conclusions that these matters had been ade-quately resolved for issuance of a full-power license.

(2) Regarding more than 1400 allegations, including those that had been filed by petitions under 6 2.206, the Commission deter-mined that a full-power license need not be deferred pending the final resolution of outstanding allegations.

(3) regarding allegations of harassment and intimidation, the Com-mission accepted the Staff's finding that there was no wide-spread pattern of purposeful harassment and intimidation; ac-cepted the Staff's approach for continuing investigations by OI and OIA; and concluded that there was no need to defer the -

full-power decision.

The Unit I full-power license DPR-80 was issued on November 2, 1984.

On April 23, 1985, the Staff briefed the Commission on matters relat-ing to the issuance of a low-power license for Unit 2, including allega-tions and their significance on low-power operation. The Staff concluded that none of them, received as of that date, were of such safety signifi-cance as to defer the proposed licensing action. The Commission, in its Memorandum and Order dated April 23,1985 (unpublished), authorized 1 l

l 485 1 i l l

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the issuance of the low power license for Unit 2. The Unit 2 low-power license was issued on April 26,1985.

On August 1,1985, the Staff briefed the Commission on matters relat-ing to the issuance of a full-power license for' Unit 2, including allega-s tions and their significance on full-power operation. The Staff concluded

, s that none of them received as of that date were of such safety signifi-

' cance as to defer the proposed licensing action. The Commission, in its Memorandum and Order dated August I,1985, accepted the Staff's de.

termination and authorized issuance of a full-power license for Unit 2.

See CLI-8514, 22 NRC 177 (1985). The Unit 2 full-power license was 4

issued on August 26,1985.

f EVALUATION OF PETITION l

The Commission found the Staff's evaluation acceptable, did not defer i

any licensing action on Diablo Canyon Units I and 2 pending any fur-ther evaluation, and authorized issuance of the licenses. With the issu-

' ance of SSER 33 in May 1986, the Staff's evaluation of the technical as-j.

pects of all allegations has been completed and documented in SER Sup-i i

plements referenced above. The Staff has concluded that the technical concerns raised in the allegations have all been resolved and that no fur-ther action is required regarding the safety of the plant.

As documented in SSER 22, allegations ofintimidation and harassment of workers at the plant were considered by the Staff. The Staff took spe-l

~ cific action to assess whether these conditions were a widespread prob-4 lem or concern at Diablo Canyon. The Staff effort on Diablo Canyon i allegations involved several thousand Staff man-hours on site interfacing with hundreds of Licensee and contractor personnel at all levels, includ-i ing specifically questioning about 250 site personnel regarding pressures j

to " cut corners," intimidation, harassment, or freedom to bring forth

~

safety- and quality-related concerns. During the course of its resolution -

of these allegations over the past 3 years, the Staff did not detect an atti-tude to suppress employee concerns or corrupt the effectiveness of those controls the NRC depends upon to ensure quality and safety. The vari-

! ous technical concerns, including the concerns on quality control, that ,

l were raised by the alleger as a basis for intimidation and harassment, j, were reviewed and found to be either unsubstantiated or insignificant '

' from a safety standpoint, as documented in SSER-33. The Office of In-vestigations has determined not to pursue these investigations based on l

i the priority of other investigations, resources, and available information concerning the allegations. On the basis of all of the above, the Staff has J

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concluded that further action concerning the alleged intimidation and harassment is not warranted.

As stated in the SER Supplerrents cited above and as discussed at the various Commission briefings, certain concerns, related to alleged im.

proper conduct by NRC Staff in its investigation and evaluation of alle-gations, had been referred to the NRC's Office of Inspector and Auditor.

The Office conducted a review of the NRC's allegation management effort, including a detailed examination of the processing of allegations by the Staff and interviews with allegers regarding the NRC Staff con-

/ , duct. The Office concluded that while numerous problems were encoun-

' > tered in dealing with allegers and processing their concerns, overall the NRC Staff did a credible job of managing the vast number of allegations.

See (1) Report to the Commission, " Review of Allegations Management for Diablo Canyon," NRC Office of Inspector and Auditor, March 1986; and (2) Report of Investigation, "Diablo Canyon - Allegations of Mis-conduct by NRC Employees," NRC Office of Inspector and Auditor.

October 21, 1985.8 The Staff has concluded that these allegations do not pertain to the safety of the plant and do not provide a basis to take any licensing action.

. In the Petition of July 27,1984, the Petitioners requested investigations by an Inspector General at a government agency outside the NRC into the NRC Staff's handling of allegations. A request for such an investiga-tion, particularly one for an investigation ofinternal NRC personnel mat-ters, does not fall within the class of requests contemplated by { 2.206.

See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), DD-84-16, 20 NRC 161,164 n.3 (1984). Section 2.206 contemplates requests to insti-tute enforcement proceedings with respect to a license. These allegations,

- therefore, are not considered to be appropriate for a petition. In any event, as noted above, the NRC Office of Inspector and Auditor, which

- is similar to an Inspector General office, has reviewed Staff actions in this case.

CONCLUSION The Petitioners base their request for relief on numerous allegations re-garding inadequate and/or improper design, construction, and manage-ment of the Diablo Canyon plant, in particular with respect to quality assurance program implementation practices; alleged personnel intimida-8 Both reports were enclosures to a letter, dated June 11,1986, from Nunzio J. Palladmo. Chairman.

5 Nuclear Regulatory Commisuon, to Edward J. Markey. Chairman, Subcommittee on Energy Consena- ,

, tion and Power. Committee on Energy and Commerce. U.s. House of Representatwes.

1 487 t

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tion by the Licensee management; and alleged improper investigation and evaluation of allegations by the NRC Staff. The Staff has completed its evaluation of the technical aspects of all allegations and concludes that no issues remain unresolved which either individually or collectively require any licensing action on Unit I or Unit 2.- The Staff did not detect any widespread company attitude, either deliberate or inadvertent, to suppress employee concerns by intimidation or hirassment and concludes that the alleged harassment 'or intimidation circumstances do not collec-tively or individually require any license action for either Unit 1 or 2.

The issues concerning alleged improper conduct by the StafTin its inves-tigation and evaluation of allegations, while not considered to be appro-priately the subject of a petition under 9 2.206, have _been reviewed; the Staff has concluded that none of the allegations pertain to the safety of the plant. Therefore, the Petitioner's request for specific relief to be taken prior to or subsequent to any licensing decision on Diablo Canyon Units I and 2 is denied. A copy of the Decision will be filed with the Secretary for the Commission's review in accordance with 10 C.F.R.

. I 2.206(c).

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Richard H. Vollmer, Acting Director Office of Nuclear Reactor Regulation Dated at Bethesda, Maryland, this 30th day of September 1986.

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