ML20205T400
| ML20205T400 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/09/1986 |
| From: | Eddleman W, Runkle J CONSERVATION COUNCIL OF NORTH CAROLINA, EDDLEMAN, W., RUNKLE, J.D. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-519 OL, NUDOCS 8606130143 | |
| Download: ML20205T400 (10) | |
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June 9,1986 /
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of:
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Carolina Power & Light Company and
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Docket No. 50-400 OL NC Eastern Municipal Power Agency
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(Shearon Harris Nuclear Power Plant)
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APPEAL FROM FINAL LICENSING BOARD DECISION Now come the Conservation Council of North Carolina (CCNC), Wells Eddleman (pro se), and the Joint Intervenors with an appeal from the Final Licensing Board Decision, ( ASLBP No. 82-472-03 OL), dated April 28, 1986, in the above-captioned docket. CCNC and Mr. Eddleman are Intervenors in this docket while the Joint Intervenors consist of several of the Intervenor groups and individuals as proponents of certain consolidated contentions.
Mr. Eddleman and Counsel for CCNC are authorized to argue on behalf of the Joint Intervenors as appropriate in this appeal.
A Notice of Appeal pursuant to 10 C.F.R. 2.762 was duly served on May 7, 1986, with an additional three-day extension for filing this brief granted by the Appeal Board on June 5, 1986.
This Appeal is divided into three sections-I. Drug Abuse, II.
Nighttime Notification, III. Finality of Final Decision--with a conclusion.
At this time we do not intend to request the opportunity for oral argument pursuant to 10 C.F.R. 2.763 although we may depending on the briefs and arguments of the other parties.
8606130143 360609 PDR ADOCK 05000400 Q
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THE LICENSING BOARD ERRED IN ITS DETERMINATION 1 RAT THE WIDESPREAD DRUG ABUSE AT THE HARRIS PLANT HAD NO EFFECT ON THE QUALITY OF CONSTRUCTION BY ITS ADOPTION OF FINDINGS OF FACT WHICH HAD NO FOUNDATION IN THE RECORD OR THAT hERE IRRELEVANT AND/OR HISLEADI M.
A.
The Licensing Board correctly presents the standards applicable to the use of drugs on a nuclear power plant construction site by stating that although there are no specific regulations, quality assurance (QA) standards are relevant.
Final Decision, Finding 6.
10 C.F.R. 50, Appendix B, requires that a QA program is designed to eliminate the possibility that construction defects of potential safety significance will go undetected and therefore uncorrected. Cleveland Electric Co.,
(Perry Nuclear Power Plant, Units 1 & 2), ALAB 802, 21 NRC 490, 4920493 (1985).
The purpose of addressing drug abuse during construction is to prevent persons under the influence of drugs or otherwise unfit for duty from endangering public health or safety.
(See proposed " fitness for duty" rule for persons at i
I operating reactor. 74 Fed. Reg. 33,980 (1982)).
In setting out the issues involved in CCNC Contention WB-3 (Drug Abuse During Construction), the Licensing Board states "that an effective program to hold employee drug use to a minimum is an essential element in a nuclear j
construction licensee's QA program." The Board continues:
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...it is not enough to show a paper record of compliance, without consideration of the extent of drug use that has actually been occurring on the site-particularly where, as here, some QA personnel have themselves been implicated in drug use.
Evidence of widespread drug use would also evidence a deficient anti-drug program and could, in turn evidence serious deterioration in the QA program. Finding 10.
j We agree with the Board's delineation of the issues involved but disagree I
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e-with ito cenclusien thzt drug abura is net "widaspresd" or a ssricua problem at the Harris plant.
The first error made by the Licensing Board is to rely on the prevalence of drugs in the American Society.
Findings 11, 73, and 60.
It is irrelevant to the fitness of workers at a nuclear plant that an estimated 5 to 12% of the American population have abused drugs, most of the society at large is not doing safety-related work at a nuclear plant. The Board must find, in this context, that "(t)here is reasonable assurance that (i) that the activities authorized by the operating license can be conducted without endangering the health and safety of the public..."
10 C.F.R. 50.57(a)(3). A finding that approximately the proportion of individuals at the construction site use drugs as in the population at large does not provide the necessary assurance.
In its Finding, the Licensing Board concluded that approximately 4.5%
of site employees during 1985 used drugs. Although it is apparent from the Final Decision that in arriving at this conclusion, the Board discounted much of the relevant testimony from the record and this figure can be much higher (see Part B, inf ra.), the question remains whether even a 4.5% rate is low enough. This is further compounded by the Board's finding that for the years 1979 through 1983, the total number of employees terminated (28)
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was not "at all indicative of likely levels of drug use" (e.g. the program was ineffective during those years.
Surely critical safety-related work was being done in those years and apparently a substantial proportion was being l
done by workers who were abusing drugs.
As a matter of law and policy, the Intervenors urge the Appeal Board to reverse the Licensing Board in this matter as this widespread drug abuse is unacceptable. All the Applicants' testimony about their program, on paper, is irrelevant if drug abuse is itself so high that one questions the 3
of fzetivanass of tha drug datsetion program and the QA progrcma ability to discover construction errors.
(This latter is of special concern when QA inspectors themselves are abusing drugs.)
B.
The Licensing Board erred by basing its decision on findings of fact that were misleading in contravention of its duty under 10 C.F.R. 2.760(c). The Board discounted direct and uncontradicted testimony by professional law enforcement personnel from the State Bureau of Investigation and the Wake County Sheriff's Department regarding the ef fect of metal detectors and dogs on prematurely terminating the undercover investigation (Findings 16, 27 - 31, 42, 43) and relied instead on CP&L employees, Joyner and King, who have as their responsibility controlling drugs on site. The Board also put weight on statements about the undercover investigation made by Mr. Bensinger who had no involvement with the investigation. Finding 25.
The Board attempts to sweep away the real conflicts between the Applicants and the undercover operatives by stating that the goals of the two were different, the Applicants to get rid of drug users while the law enforcement personnel were trying to get arrests and convictions.
Finding 32.
This position is untenable in light of the results of the 1982 investigation where although 29 empicyees were reported to Applicants, only 8 were terminated during that year. Finding 56.
An equally as logical a conclusion is that Applicants were covertly, if not overtly, attempting to terminate the drug investigation less it prove too successful and thus call even more into question the quality of the plant construction.
It appears that the Licensing Board weighed each of the statements or pieces of evidence which support the contention in isolation from the others. No doubt some of the statements were nondispositive or even 4
c:nfu ed, but tckan ca a whols, it w s chown conclusivsly that drug abuga was widespread. For example, the Board gave almost no weight to the drug abuse observed by an employee who testified that although she was not trained in drug enforcement she had cooperated with the FBI in investigating drugs. On the other hand statements by CP&L management employees that they had not seen any drug abuse were apparently given much more weight.
Ibid.,
Findings 75 - 78, pages 46 - 48.
A review of the entire record will show overwhelmingly that drug abuse on site was widespread and is much higher than the 4.5% found by the Board.
This higher level is also unacceptable and shows that even if the QA program and the drug detection are adequate on paper, this does not allow a finding that the plant can and will be operated safely. The Board found the NRC Staff's review of the drug detection program to be inconclusive because it only looks at the program on paper (Finding 79), yet the Board itself makes much of the same program (again on paper) when it was presented by the Applicants at the hearing.
C.
The Licensing Board erred in making findings that were mere suppositions without any basis in the record.
Finding 26, in which the Board goes outside the record and proposed findings, is in direct contradiction to the testimony of the undercover agents and their supervisors. Findings 23 and 24.
In the same vein as stated in Part A supra, Finding 35 also characterizes the primary concern of CP&L was to prevent drugs from entering the site.
It is unclear how the Board came to this conclusion or what was the basis for this finding.
Additionally, the Board ascribed to Agent Hensley the " thought" that he had no other group to go to on the day shift even after it heard uncontradicted testimony from Captain Lanier of the Sherif f's Department, 5
with H2n31sy'o concurrsnca, thtt it w:uld drcw auspicicn to infiltrata another group (of sellers and buyers) on the same shift. Findings 42 and 43.
In Finding 130, the Board finds it probable that the drug use levels have peaked at the plant and that the Applicants' drug detection program "should have had a chilling effect on drug use at the Harris site."
There is absolutely no basis in the record for this statement, either in the testimony or the proposed findings (not even the Applicants made any such bald assertion).
These unsupported findings help to lead the Licensing Board to the unsupported conclusion that drug abuse is not widespread and thus presents no safety problems. A review of the entire record shows conclusively that drug abuse by employees has been and will continue to be a major problem.
As such the plant should not be licensed.
II.
THE LICENSING BOARD ERRED IN ACCEPTING THE APPLICANTS' PLANS FOR ALERT AND NOTIFICATION UNDER NIGHTTIME CONDITIONS.
A. The primary alerting system is designated by NUREG-0654 as the system that shall accomplish alerting within 15 minutes for essentially 100%
of the population within the EPZ.
Informal alerting is not even mentioned in NUREG-0654 Appendix 3 which deals with alerting so is clearly not within the scope of the alert-notification system required by NUREG-0654.
Moreover, backup alerting is clearly the topic in Appendix 3 Section B.2(c),
and thus cannot be used to comply with the requirements of B.2(a) as well as (b) for both an alert signal and the instructional message required within 15 minutes to essentially 100% of the population within ten miles, or to directly cover the population within five miles.
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Thus th2 Licanning Board ser:d in including both informal s1crting s.nd backup alerting in its decision approving the Applicants' plans for nighttime notification.
Informal alerting has further logical flaws, such as the unlikely assumption that all calls will go to alert people within the EPZ (and not people outside), and that the telephone network will not overload.
B.
The Licensing Board also erred in not considering siren failure rates and in not waiting for the official test results before issuing its decision. Siren failure clearly impacts the ability of people to hear and respond to the sirens. The Licensing Board ruled that this was not included in the contention, and it is not in so many words, but is illogical to write off those instances when the sirens do not work. Applicants' counsel, Ms. Ridgway, even remarked to the effect that Applicants believed that the complaints from people not hearing the sirens were in fact due to a siren failure but that they had no way of knowing if the siren failed.
10 C.F.R. 50.47(a) requires reasonable assurance that adequate protective actions "can and will" be taken. Obviously such assurance would be lacking if people were not alerted by the sirens due to their failure just as they would by system design flaws.
In light of the information i
j available in the record Indicating siren failures, the Board was obligated l
l to allow inquiry into the ef fect of siren failure on alerting (a logical nexus to the contention as framed and revised).
Because of the lack of an l
l official siren test, the Licensing Board acted arbitrarily and capriciously I
in approving an untested alerting system on the assumption that its sirens would work 100% of the time.
(Additionally, there has been no tone alert l
radio test done in the EPZ. The annual test is the only test program for l
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the r:caivara cnd the r:dics wara nst tact;d bectura they wers nst in plcca.
Tr. 10813, 10799.)
Without any test of the entire system, approval of the merits of the system was merely a hypothetical exercise. This is especially erroneous because the tests would soon be available and should have been used to guide the Board's decision. The Board's conclusions in its Final Decision are in somewhat contradiction with the concerns the Board raised in both its November 19, 1985, and March 16, 1986, letters to the Commission.
C.
The Board erred in neglecting the indetectability of failures in tone alert radios and in accepting witness Keast as credible.
Both of these argumants are adequately covered in Eddleman proposed finding, dated March 19, 1986, so will not be repeated here.
(See Tr.10708 and 10791 - 93 re.
failures and particularly proposed finding 9 on Keast's credibility.)
D.
The Board erred in not taking seriously the many past failures of tone-alert radios in tests. During the hearing, Applicants admitted that the largest failure rate showed up in the third annual test of similar radios by Georgia Power.
Tr. 10807.
E.
The Licensing Board erred in its cavalier treatment of Intervenor's proposed findings stating that there is a lack of analysis of the record (frequently cited in the very findings criticized) to document noncompliance (also cited).
Final Decision, Finding 84.
This is both untrue and categorically unfair.
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III.
THE LICENSING BOARD ERRED IN RENDERING ITS FINAL DECISION BEFORE ALL MATTERS IN TilIS DOCKET WERE PROPERLY ADDRESSED.
The Licensing Board cannot make the necessary findings that the plant will be operated safely and in a manner that complies with NRC regulations until it has addressed all of the issues raised by Intervenors.
10 C.F.R. 50.57(a). The Final Decision at footnote 50, page 185, stated that there is one unresolved matter dealing with incidents of harassment, with a Memorandum and Order, issued May 22, 1986, on these matters.
Mr. Eddleman, in a letter to the Licensing Board, dated June 6, l')86, has availed himself
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of the opportunity to pursue complaints of harassment. Another matter, a late-filed contention (WB-4, alleging the falsification of dose records) was filed on April 22, 1986, before the issuance of the Final Decision. This too has not been acted upon.
The Licensing Board cannot make it required findings concerning the Applicants' ability to follow regulations and protect public health unless it hears all matters brought before it.
Both of these contentions cast serious doubt about the Applicants' protection of their workers and their ability to carry out NRC regulations needed to protect the public.
In addition to the unresolved contentions, there are considerable matters which have been appealed from the earlier Partial Initial Decisions on this matter; cnly the first of which has been acted upon by the Appeal Board.
LBP-85-5, 21 NRC 410 (1985); LBP-82-28, 22 NRC 232 (1985); LBP 49, 22 NRC 899 (1985). The is a real possibility that the Licensing Board will be reversed or have matters remanded so cannot make its Final Decision with any finality.
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CONCLUSION Bsciuzo of tha many arrors, both factuel and lags 1, committed by tha Licensing Board in reaching its Final Decision, it cannot make the findings required by the regulations in 10 C.F.R. 50.57 in granting an operating license. As such the Harris plant should not be licensed.
Respectfully submitted, ohn Runkle Ceneral Counsel for CCNC 307 Cranville Road Chapel Hill, NC 27514 919/942-7935 VlitEddlenhf)
Wells Eddleman 812 Yancey Street Durham, NC 27701 919/688-0076 This is the 9th day of June, 1986.
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