ML20206M781
| ML20206M781 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Harris  |
| Issue date: | 08/15/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#386-407 ALAB-843, LBP-85-49, OL, NUDOCS 8608210399 | |
| Download: ML20206M781 (27) | |
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UNITED STATES OF AMERICA ._
NUCLEAR REGULATORY COMMISSIOQ g 18 pio:g7 ATOMIC SAFETY AND LICENSING APPEA BOARD
' W r ri :'6 , ' , '
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Administrative Judges:
Thomas S. Moore, Chairman August 15, 1986 Dr. Reginald L. Gotchy (ALAB-843)
Howard A. Wilber SERVED AUG (8;99g In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY, ) Docket No. 50-400 OL
-et_al. )
(Shearon Harris Nuclear Plant, )
Units 1 and 2) )
)
Wells Eddleman, Durham, North Carolina, intervenor pro se.
Thomas A. Baxter, Washington, D.C. (with whom John H. O'Neill, Jr., Delissa A. Ridgway, and Pamela H. Anderson, Washington, D.C., and Richard E. Jones, and Dale E. Hollar, Raleigh, North Carolina, were on the brief) for the applicants Carolina Power & Light Company, et al.
- Charles A. Barth (with whom Janice E. Moore and
! Marjorie U. Rothschild were on the brief) for l the Nuclear Regulatory Commission staff.
l DECISION In its third partial initial decision in this operating license proceeding, the Licensing Board resolved in the applicants' favor several emergency planning and safety issues.1 One of the several intervenors in the proceeding,2 Wells Eddleman, now appeals several of the conclusions of 1 See LBP-85-49, 22 NRC 899 (1985).
2 See LBP-85-5, 21 NRC 410, 412-13 (1985).
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that decision. He also seeks to appeal the Licensing Board's rejection of a number of his contentions. For the reasons that follow, we affirm the results reached by the ,
Li ensing Board on each of the challenged issues.4 Before turning to the various claims of error, a brief comment about the intervenor's appellate papers is in order.
The Commission's Rules of Practice require that an 3
Although the Notice of Appeal from LBP-85-49 was signed by four intervenors (John Runkle, counsel for the Conservation Council of North Carolina (CCNC); Dr. Richard Wilson, pro ae, Daniel F. Read, President of the Chapel' Hill Anti-Nuclear Group Effort (CHANGE) ; and Wells Eddleman, pro se and as joint intervenor), only one appellate brief was filed _and it was' signed by Mr.'Eddleman alone. Thus,
,despite Mr. Eddleman's representat on i onht e first page of the brief that several intervenors have appealed, we reject -
Mr. Eddleman's attempts to appeal the rejection of contentions that were' sponsored solely by other parties.
Beca'u'se Mr. Eddleman is not an attorney he cannot represent any'other individual or any organization in which he does not hold membership, see 10 C.F.R. S 2.713 (b) , and he has no standing to raise before us.possible grievances of other parties that have not perfected their appeals. See ALAB-837, 23 NRC 525, 543 n.53 (1986); Houston Lighting &
l Power Co. (Allens Creek Nuclear Generating Station, Unit No.
i- 1) , ALAB-631, 13 NRC 87, 89 (1981); Puget Sound Power and
! Light Co. (Skagit Nuclear Power Project, Units 1 and 2),
l ALAB-556, 10 NRC 30, 33 (197 9) '. Cf. Houston Lighting &
Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 l
l NRC 360, 383 (1985). Hencc, we dismiss Mr. Eddleman's 1 attempt to appeal the Licensing Board's rejection of CHANGE contentions 4, 9, 20, 21, 23 and 33, and Wilson contentions 1,-3, 4, 5 (b) , (c), (d) and (e). We likewise dismiss Mr.
Eddleman's attempt to appeal the Licensing Board's ruling l
recasting. Emergency Planning joint contention 1, because he
! did not sponsor that contention.
In ALAB-837, 23 NRC 525 (1986) , we af firmed the Licensing Board's first partial initial decision on
- environmental issues.
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. appellant's brief' clearly identify the errors of fact or law that are the~ subject of the appeal, and that for each issue appealed, the precise portion of the' record relied upon in support of.the assertion of error be set out.5 Moreover, the brief must contain sufficient information and cogent argument to alert the other parties and the appellate tribunal to the precise nature of and support for the appellant's claims.6 A party's failure to brief adequately its claims of error leaves the other. parties in the dark as to how to respond properly and makes appellate review difficult, if not impossible. Unfortunately, this is precisely the situation we face here. Mr. Eddleman's "brief" is far from a model of clarity. In only nine pages, he asserts claims of error regarding, inter alia, dozens of separate contentions involving numerous Licensing Board rulings.7 L
i S
10 C.F.R. S 2.762 (d) (1) .
6 See Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 805 (1979),
-vacated in'part and remanded, CLI-80-8, 11 NRC 443 (1980).
7 Mr. Eddleman succeeded in keeping his brief under ten pages by failing to comply with the requirements of 10 C.F.R. S 2.708 (b) that all documents filed in an l~
adjudication must be typed double-spaced with margins of not less than one and one-quarter inches. While the first two pages and the final paragraph on the last page of Mr.
Eddleman's brief comply with the regulation, the rest of his brief does not. Had Mr. Eddleman complied fully with (Footnote Continued) l
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-From this fact alone, it is obvious that his assertions of error cannot possibly be adequately briefed. Many of his claims consist of little more than bald assertions that the Licensing Board erred, without any explanation or argument aus to how or why the particular decision is wrong. - As we have said before, "it is not enough simply to declare flatly that a particular Board ruling was in error. Rather, it is incumbent on the appellant to confront directly the reasons assigned for the challenged ruling and to identify with particularity the infirmities purportedly inherent in those reasons."8 Similarly, Mr. Eddleman's brief is noticeably
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lacking in appropriate and necessary citations to the decisions in question and the evidentiary record.9 In'the circumstances, we would be fully justified in dismissing the entire appeal.10 Rather than take that step, however, we (Footnote Continued) section 2.708, his brief almost certainly would have exceeded ten pages in length. Hence, we' find disingenuous the statement that "[a] table of contents etc. is not required for briefs 10 pages long,10 CFR 2.762 (c) ."
Eddleman Brief (January 30, 1986) at 2.
l 8 Duke Power Co. (Catawba Nuclear Station, Units 1 and
- 2) , ALAB-813, 22 NRC 59, 84 n.128 (1985).
.t 9 See supra note 5.
10 See Cleveland Electric Illuminating Co. (Perry l
Nuclear Power Plant, Units 1 nd 2), ALAB-841, 24 NRC ,
(July 25, 1986) (slip opinion at 2-4); Pennsylvania
- Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2) , ALAB-693, 16 NRC 952, 956-57 (1982).
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- have attempted to review those of Mr. Eddleman's claims that make enough sense so as to allow their disposition. All' other claims are considered waived.11 s
I. EMERGENCY PLANNING i The Commission's regulations dictate that "[a] range of protective actions" be developed for the plume exposure pathway emergency planning zone (EPZ). One of the protective actions available during a radiological emergency is sheltering. The Commission's basic guidance document on
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emergency planning, NUREG-0654/ FEMA-REP-1, provides that emergency plans should include "[t]he bases for t.he choice 11 See Cleveland Electric Illuminatinc Co. (Perry Nuclear Power Plant, Units 1 and.2), ALAB-102, 21 NRC 490,
' 496 n.30- (1985); Wisconsin Electric Power Co. (Point Beach ~
Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1255 (1982);
Susquehanna, 16 NRC at 954-57; Duke Power Co. (Catawba Nuclear Station', Units 1 and 2) , ALAB-355, 4 NRC 397, 413-14,-reconsideration denied, ALAB-359, 4 NRC 619 (1976).
12 10 C.F.R. S 50.47 (b) (10) .
f 13 " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," (Rev. 1, November 1980)
NUREG-0654, like
[ hereinafter referred to as "NUREG-0654"].
the Regulatory Guides, serves as guidance and does not prescribe regulatory requirements. It simply serves as a 4
method of meeting the applicable regulatory requirements.
l' Philadelphia Electric Co. (Limerick Generating Station,
Units 1 and 2), ALAB-819, 22 NRC 681, 710 (1985), review l
denied, CLI-86-5, 23 NRC 125 (1986); Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 1) , ALAB-698,
. 16 NRC 1290, 1298-99 (1982), rev'd in part on other grounds, l' CLI-83-22, 18 NRC 299 (1983).
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6 of recommended protective actions from the plume exposure pathway during emergency conditions. This shall include expected local protection afforded in residential units or other shelter for direct and inhalation exposure .. . .
"14 In an attempt to comply with this guidance and the Commission's regulations, the applicants undertook a survey of the protection factors afforded by the types of housing prevalent in the plume EPZ. This review, however, did not address the protection factors afforded by typical institutional structures (schools, houses of worship, etc.) ,
commercial structures, and industrial facilities in the EPZ, presumably because such buildings constitute only about twenty percent of the structures in the area.16 The Licensing Board determined that given the size of such buildings they could house far more than twenty percent 14 Evaluation Criterion J.10.m., NUREG-0654 at 64 (footnote omitted).
15 The sheltering effectiveness of a structure is measured in terms of its protection factor. The PF is the ratio of the radiation dose outside the structure to the dose inside. It indicates the degree to which a structure would afford protection from a radiation release in comparison with no shelter at all. LBP-85-49, 22 NRC at 903.
See Applicants' Motion For Summary Disposition of Eddleman Contention 57-C-10 (January 14, 1985), Affidavit of Robert G. Black, Attachment 4.
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7 of the plume EPZ population at the time of a radiological emergency. I7 Thus, the Licensing Board admitted Eddleman contention 57-C-10 for litigation, but confined the hearing on the contention to one issue: the adequacy of the applicants' review of sheltering afforded by non-residential structures in the EPZ.
After the hearing on the contention, the Licensing Board found that a satisfactory survey of the protection factors of institutional, commercial and industrial structures in the Shearon Harris EPZ had been conducted; that a " range" of protection factors for representative structures had been obtained; that the North Carolina Division of Emergency. Management had accepted the applicants' results; and that the emergency response plan "will be amended to reflect the results of the survey and to include an analysis of the level of protection from radiction releases afforded by representative commercial, f
17 Memorandum and Order (Ruling on Remaining Summary Disposition Motions) (April 24, 1985) at 7.
18 Eddleman contention 57-C-10, as originally admitted by the Licensing Board, stated in pertinent part: "The State Plan provides no useful analyses or information on sheltering effectiveness . . . . The Plan does not comply j
L with Evaluation Criterion J.10.m. of NUREG-0654, which calls for ' expected local protection factors in residential units or other shelter '"for direct and inhalation exposure . . . . LBP-85-49, 22 NRC at 902.
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8 institutional and industrial structures in the Harris
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EPZ . . - . .
"9 The Board also found that the applicants' evidence in support of their proposed findings had not been impeached, except in some " minor respects."20 On appeal, Mr. Eddleman does not question the adequacy of the applicants' survey. He asserts that the Licensing Board erred in not requiring the protection factor data garnered as a result of the applicants' survey to be placed in the emergency plan. As best we can understand it, Mr.
Eddleman's position is that NUREG-B654 dictates that the plan must include the actual protection factors typical of structures within the EPZ, as opposed to the " range" of protection factors described in the Licensing Board's findings. For support, Mr. Eddleman simply refers us to several of his proposed findings and several pages of the hearing transcript. He also cites, without more, GUARD v.
l NRC, for the proposition that the deference due an agency's interpretation of its own regulation "is I appropriate only so long as the agency's interpretation does no violence to the plain meaning of the provision" in question.
19 Id. at 906.
20 Id. at 904.
21 753 F.2d 1144, 1148-49 (D.C. Cir. 1985).
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In addressing Mr. Eddleman's concern, the Licensing Board pointed out that
[t]he purpose (of sheltering survey information]
is to allow planners to make informed, but relatively gross, judgments about sheltering in the EPZ as a whole, or large segments of the EPZ, wherever people happen to be at the time. Its purpose is not to assist decisionmakers in deciding whether to move people, e.g., from wood buildings to brick buildings, seeking to maximize sheltering protection. Thus, what the decisionmakers need is a manageable set of reasonable estimates, detailed mass of data. ggt a finely tuned and This conclusion was based on testimony of John C. Heard, Jr. , an expert witness appearing on behalf of the Federal Emergency Management Agency (FEMA) . Among other things, Mr.
Heard testified that "[y]ou can't run an evacuation or a protective action process in large sectors by earmarking one sector as having better protection so we will leave them l
alone;" and "it is never intended to move people from their homes into better protected buildings within the 10-mile EPZ." In light of this testimony, we can find no fault with the Licensing Board's finding that "merely provid[ing]
low- and high-range (protection factor] data on various categories of buildings" is sufficient to comply with the I
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22 Id. at 906 (citation omitted; emphasis in original) .
3 Tr. 8155-56.
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L 10 regulations.24 Mr. Eddleman has not directed our attention to anything in the record that would tend to contradict Mr.
Heard's testimony and Support the position that using ranges of-protection afforded by structures in the EPZ does not satisfy NUREG-0654, and hence the Commission's emergency planning regulations.25 Furthermore, the very wording of Criterion J.10.m (on which contention 57-C-10 is apparently based) confirms that the use of the applicants' summaries of ,
protection factors is satisfactory, for they do, in fact,:
inform the.decisionmakers of the " expected' local protection afforded" in structures within the EPZ. Thus, Mr.
Eddleman's citation to GUARD v. NRC does not avail him.
The Licensing Board's conclusion that the applicants have met their burden with respect to Eddleman contention 57-C-10 is affirmed.
24 LBP-85-49, 22 NRC at 907.
25 Mr. Eddleman cites several pages of the transcript (Tr. 8137, 8139-40, 8142-44, 8146-48) for support. We have reviewed these and find nothing in them that brings the Licensing Board decision into question.
6 In addition, NUREG-0654 is not a regulation and hence, the general principle propounded in the GUARD' decision, and cited here by Mr. Eddleman, is not applicable in these circumstances. See supra note 13.
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I 11 II. FIRE PROTECTION A. The Licensing Board also admitted for litigation Eddleman contention 116, which challenged various aspects of the applicants' fire protection system.27 Among other things, this contention averred that "[i]n establishing fire resistance ratings of fire barriers with respect to. fire in cable trays, Applicants have not established that qualification tests represent actual plant conditions or -
comparable conditions."28 The Licensing Board specifically found, however, that "the qualification methods to be used by the Applicants represent equivalent or more rigorous tests of cable tray fire barriers than would be experienced under actual plant conditions."29 On appeal, Mr. Eddleman does not dispute this finding.
Rather, he complains of what he describes as the Licensing Board's acceptances of promises and future inspections with regard to fire protection.30 What Mr. Eddleman is 27 The basic purposes of a fire protection program for a nuclear power plant are to ensure that, in the event of a fire, the reactor can be shut down safely and maintained in that condition, and to control radioactive releases to the environment. See 10 C.F.R. Part 50, Appendix A, General Design Criterion 3, and Appendix R; LBP-85-49, 22 NRC at 917; Eberly/Ferguson, Tr. fol. 4626, at 6-7.
O LBP-85-49, 22 NRC at 916.
' Id. at 919.
0 Eddleman Brief at 7.
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12 apparently referring to is the Board's finding that each cable tray fire barrier will be tested "by an independent laboratory on a ' generic' assembly of that fire barrier, and (that] installation of that barrier will be done in accordance with.the recommendations of the testing laboratory to ensure that the actual barrier has the same configuration as the test assembly."31 Mr. Eddleman contends that the Board here impermissibly allowed the testing of the fire barriers to be performed after the hearing "instead of requiring data on the test results."32 For support, he cites to Commission and Appeal Board decisions that teach that post-hearing resolution of issues should be employed sparingly and only in clear cases.33 Mr. Eddleman's argument is groundless, for as the applicants and the NRC staff indicate, there is nothing of this aspect of contention 116 left for post-hearing resolution. Mr. Eddleman is bound by the literal terms of 31 LBP-85-49, 22 NRC at 919.
32 Eddleman Brief at 7.
33 Mr. Eddleman cites Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), CLI-74-23, 7 AEC 947, 951-52 (1974) and Louisiana Power and Light Co.
(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103 (1983).
13 his own contention,34 and here the issue did not deal with the adequacy of testing or test data, but only concerned whether the qualification tests to be used with respect to cable tray fire barriers " represent actual plant conditions or comparable conditions." The Licensing Board directly answered this question. It made specific findings, which are fully supported by the record, concerning the qualifi-cation conditions for fire barriers. Testimony revealed that the tests to determine fire resistance ratings of the Shearon Harris fire barriers are conducted according to standard testing procedures approved by organizations such as Underwriters Laboratories.35 The Board found that the fire barriers are qualified by an exposure fire " based on a standard, empirically derived time-temperature curve" which
" represents a worst-case exposure fire."36 Accordingly, the Board found that a fire barrier tested under those conditions "will resist a fire from the maximum calculated combustible loading in any fire area in the (Shearon Harris]
34 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 505 (1986);
id., ALAB-819, 22 NRC 681, 709 (1985).
5 Serbanescu, Tr. fol. 4256, at 8-9.
LBP-85-49, 22 NRC at 919. See Serbanescu, Tr. fol.
4256, at 10-11; Tr. 4526, 4656-58, 4666-68.
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14 power block."37 Thus it is clear that this issue was O
correctly resolved by the Licensing Board.
B. Another part of Eddleman contention 116 is directed at the applicants' treatment in the Final Safety Analysis Report (FSAR) of the consequences of the spread of a fire at Shearon Harris. The contention alleged that "the ' analysis' of what happens if the fire spreads is generally a rationalization that it can't spread much, not.an analysis."39 In addressing this issue, the Licensing Board agreed with the NRC staff's assessment that, if the proper fire barriers and detection and extinguishing equipment are provided, there will be no spreading of fire.40 Additionally, the Board found that the applicants' analysis L 37 LBP-85-49, 22 NRC at 919. See Serbanescu, Tr. fol.
i 4256, at 11.
I 38 Although it is not entirely clear that Mr.
Eddleman's argument is a challenge La the Licensing Board's factual findings on this issue, to the extent it is we note that we will overturn a licensing board's findings of fact only where "we are convinced that the record compels a different result." Niagara Mohawk Power Cor?. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 RRC 347, 357 (1975). See ALAB-837, 23 NRC at 531.
39 LBP-85-49, 22 NRC at 916.
40 Fire and smoke detectors serve to provide timely warning to personnel. The use of sprinkler systems is the
- principal means of mitigating the effects of fires at the plant. Id. at 922. In addition, a backup manual firefighEIng capability will be provided in the form of trained fire brigades, which will consist of a minimum of
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five people on each plant shift. LBP-85-49, 22 NRC at 923.
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15 would enable them to know what the effect would be, should a fire spread.41 On appeal Mr. Eddleman complains of the Licensing Board's " approval" of the applicants' analysis of the effects of fire spreading from one fire area to another. He claims that "without analysis of what equipment will be knocked out in a spreading fire . . . the [ applicants']
analysis cannot be adequate."42 Mr. Eddleman's complaint is without merit. As noted above, the Licensing Board explicitly found that the applicants' analysis of fire hazards is sufficient to analyze the impact of fire spreading to an adjacent fire area, should that occur. This conclusion is amply supported by the record. The Shearon Harris plant is divided into a number of " Fire Areas." These were established based on the nature of occupancy of that part of the plant, the amount and distribution of combustible materials within the area, and the location of safety-related systems and equipment.43 Further, the applicants' Safe Shutdown Analysis describes the equipment needed to achieve a safe shutdown, the Fire Areas where these systems are located, and the type of 41
_I_d.
42 Eddleman Brief at 7.
43 Serbanescu, Tr. fol. 4256, at 16.
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16 protection provided in each location.44 Thus, contrary to-Mr. Eddleman's assertion, the applicants have adequately analyzed the effects of fire on safe ~ shutdown equipment.
Equally important is Mr. Eddleman's failure-to challenge the Board's findings or the record relied on by the Board. For example, Mr. Edileman criticizes the staff's position that, if its guidelines concerning fire barriers, extinguishment and detection are met, the spreading of fire will be prevented; yet at no point has Mr. Eddleman postulated a fire spreading scenario that would call into question the Shearon Harris fire protection program. We need not rehash all the additional record support for the Licensing Board's findings here. Suffice it to say that we have reviewed the record and find no cause for overturning the Licensing Board's conclusions regarding the adequacy of the applicants' Fire Hazards Analysis.45 4
I See Applicants Exh. 7, " Safe Shutdown Analysis
[ Summary and Description (of] Fire Protection" (originally
! submitted-in a letter from A. B. Cutter, Vice President, l Nuclear Engineering & Licensing, Carolina Power & Light Co.
I to H. R. Denton, Director, Nuclear Reactor Regulation (June 12, 1984)); Applicants Exh. 6, Final Safety Analysis Report Section 9.5.1 and Appendix 9.5A Fire Protection System.
45 Mr. Eddleman also seeks to challenge the Licensing.
Board's rejection of several of his proposed findings on the fire protection issue. As to the bulk of these proposed .
findings he provides no argument at all as to how the Board erred. With respect to his proposed findings 16-21, they consist of allegations about certain material having been (Footnote Continued) i
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17 III. PIPE HANGER WELDS Eddleman contention 41 states: " Applicants' QA/QC program fails to assure that safety-related equipment is properly inspected (e . g . , the ' OK ' tagging of defective pipe hanger welds at (Shearon Harris]."46 In admitting the contention, the Licensing Board limited it "to Mr.
Eddleman's only specified concern 'that there exist defective hanger welds that have been improperly inspected and approved.'"47 The intervenor has not challenged this-limitation.
The Licensing Board found that the applicants had suffered through several years of problems relating to pipe (Footnote Continued) omitted from the FSAR. In rejecting these, the Board concluded that, because "the material in question was placed in the record at the hearing," any earlier omissions were
- irrelevant. LBP-85-49, 22 NRC at 925. On appeal, Mr.
Eddleman opines that " omission of (the] material (in question] bears on the trustworthiness of Applicants and the thoroughness of their analysis," and that "[t]his is significant in light of the promises and analysis the Board I has accepted." Eddleman Brief at 7.
Contrary to Mr. Eddleman's assertions, however, the Licensing Board did not improperly leave any matters regarding the applicants' fire protection system for later resolution. Moreover, aside from the fact that the
" trustworthiness" of the applicants was not among the issues t
raised in Eddleman contention 116, we fail to see how the exclusion of some material from the FSAR would impugn the l applicants' character.
46 LBP-85-49, 22 NRC at 926.
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O 18 hanger welding, but that they had successfully taken actions to correct these problems. Thus, the Board concluded that although "[t]his contention may have had merit when it was initially raised (,) . . . remedial actions have averted a possible breakdown in quality construction." Furthermore, the Board found that "[nlo uncorrected errors that would affect safe plant operation were identified in this proceeding."48 On appeal, Mr. Eddleman now asserts that the Board approved a pipe hanger welding program riddled with errors and administrative management failures based on mere promises to comply. For support, Mr. Eddleman refers us to 49 for the proposition that "a promise our Shoreham decision to comply is not enough."50 This argument misses the mark. In the first place, Mr.
Eddleman has not directed our attention to anything in the record that would indicate that the applicants' program is currently " riddled with errors." Instead, he simply asks us to consider his proposed findings. By so doing, Mr.
Eddleman has failed to elucidate what he believes is wrong 48 Id. at 930.
49 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1146 (1984).
50 Eddleman Brief at 8.
w 19 with the decision below, and what evidence he relies on for his position. As we have indicated in the past, this will not do.51 Furthermore, the Licensing Board's conclusion is not based on " promises to comply," but rather, on record-evidence of. actions that have already "been demonstrated to be effective."52 Based on Mr. Eddleman's failure to cite any evidence that would support his assertion on appeal, and our review of the record, we conclude that the Licensing Board reached the correct determination with regard to Eddleman contention 41.
IV. STEAM GENERATOR TUBE FAILURE Mr. Eddleman next appeals the Licensing Board's conclusions on joint intervenors' contention VII(4) .53 The issue raised by that contention is whether the applicants were required to consider multiple tube failures in their 51 See supra pp. 3-5. See also Black Fox, 10 NRC at 805-06; Public Service Electric and Gas Co. (Hope Creek Station, Units 1 and 2) , ALAB-394, 5 NRC 769, 770 (1977).
Moreover, we have reviewed Mr. Eddleman's proposed findings and agree with the Licensing Board that they do little more than repeat the history of the applicants' problems with pipe hanger welds. See LBP-85-49, 22 NRC at 929.
52 See generally id, at 927-29; Nevill, Id. at 929-30.
g al., Tf. fol. 6663; Tr. 6670-71, 70TT-43. .
53 This contention superseded contentions originally sponsored separately by Mr. Eddleman and CHANGE. See LBP-82-119A, 16 NRC 2069, 2075-78 & n.11 (1982).
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20 1 steam generator-tube failure analysis.54 The Licensing Board found the applicants' analysis of tube failure to be=
adequate. More specif1cally, it found the likelihood of multiple tube failures to be so small as not to warrant an analysis of such an occurrence.0 On appeal, Mr. Eddleman contends that the Board did not adequately justify its decision. He also asserts that "the probability of such events would be in the range of other events analyzed."$6 Both arguments are clearly without merit.
All direct evidence on this issue was presented by the applicants and the NRC staff. Based on this ev'idence, the Licensing Board found that the likelihood of a steam .
generator tube rupture at the Harris plant was about one rupture every 45 years. It further found this number to be conservative, based on the fact that the causes of the five i
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54 The rest of joint contention VII was disposed of by j
stipulation and summary disposition. LBP-85-49, 22 NRC at 931-32. Mr. Eddleman is not appealing the summary
] disposition ruling.
55 For a general discussion of steam Id. at 934-35.
generator tube failure, see Wisconsin Electric Power Co.
(Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335 (1983).
56 Eddleman Brief at 9.
See Hitchler, Tr. fol. 4012; Marsh and Conrad, Tr.
fol. 4176.
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.c 21 known tube ruptures in Westinghouse steam generators using Inconel. tubes -- stress corrosion cracking, denting, and loose foreign objects in the system -- have either been eliminated or mitigated by subsequent developments.- With these changes factored into the analysis, the probability of a single tube failure at Shearon Harris drops to about one in 120 years. The Board also noted that no multiple tube failure has ever occurred. Finally, the Board relied upon a Westinghouse analytical model that predicted the expected frequency of multiple tube failure to be approximately one in 14,000 plant-years.58 Based on these findings, the Licensing Board found no reason to require analysis of multiple tube failure.
It is thus apparent that the Licensing Board did indeed
" justify" its decision.59 In light of the evidence supporting the Board's findings and Mr. Eddleman's failure to cite anything in the record that would call those findings into question,60 we conclude that there is no merit 58 LBP-85-49, 22 NRC at 932-33.
59 The Licensing Board also fully answered the
- intervenors' arguments raised in their proposed findings.
LBP-85-49, 22 NRC at 933-34.
60 Once again, Mr. Eddleman has failed to provide any citations to the Licensing Board decision or the record.
Accordingly, we simply could have considered this claim to be waived. See supra pp. 4-5. We chose to address the (Footnote Continued) l i
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22 to'Mr. Eddleman's assertions on appeal. The Licensing Board's conclusion regarding joint contention VII(4) ,
therefore, is affirmed.
V. EMPLOYEE HARASSMENT Mr. Eddleman's next assertion of error concerns the Licensing Board's dismissal of his contention 41-G. That late-filed contention was based on an affidavit of Chan Van Vo, a former employee of one of the applicants, who alleged that he was harassed, and eventually fired, for raising construction-related safety concerns at the Shearon Harris plant. As admitted, the contention read: "Chan Van Vo was placed on probation and later terminated from his job with (Carolina Power & Light company] because he had sought to .
raise nuclear safety concerns about the Harris facility, as he alleges, and not because of poor job performance, as CP&L aAleges."61 In admitting contention 41-G, the Licensing Board (Footnote Continued) claim because it purportedly speaks to one of the issues that the Licensing Board resolved on the merits, and because the intervenor did state, albeit in a minimal fashion, what he believed to be wrong with the ruling below (i.e. , he did not simply state "the Licensing Board erred."). This should not be taken as an indication of our acceptance of such bare-bone briefing.
61 Memorandum and Order (Ruling on Certain Safety Contentions and Other Matters) (January 14, 1985) at 3.
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23 determined that a balancing of the five criteria by which a late-filed contention must be judged tilted in favor of admitting the contention in this narrowed form.62 Later, however, the Board reconsidered its analysis admitting the contention after learning that Chan Van Vo's counsel could not warrant that his client would be available as a witness in the hearing that had been scheduled on contention 41-G.63 The Board found Chan van Vo's availability as a witness to be crucial to any hearing on the contention, because the contention " speaks directly to the unique personal experience, including the subjective reactions, of a single individual -- Chan Van Vo."64 It found that the third of the five factors, the ability of the late-filing party to contribute to the record, had " changed dramatically 62 As originally proposed, contention 41-G alleged the existence of a general pattern of harassment of employees raising quality assurance and quality control concerns at Shearon Harris, and merely cited to portions of the Chan Van Vo affidavit as examples of the alleged harassment. The Licensing Board concluded that the five criteria of 10 C.F.R. S 2.714 (a) weighed against admission of contention 41-G in its original form. After narrowing the scope of the contention, however, the Board determined that the five-factor analysis favored its admission. See id. at 2-3.
63 Robert Guild apparently was acting as counsel for Chan Van Vo and one of the other intervenors in this matter.
See Tr. 7639, 7732.
64 Memorandum and Order (Dismissing Contention Concerning Alleged Harassment of Former Employee and Rejecting Emergency Planning Contention) (June 12, 1985) at 5.
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24 against the Intervenors because they cannot produce the person they once recognized as their chief witness. This means . . . that further litigation of Contention 41-G would never get to the heart of that contention and would result-only in wasted time and resources."65 The Board, therefore, dismissed the contention.
On appeal, Mr. Eddlemen contends that the Licensing Board erred in dismissing the con:ention in that (1) the dismissal was based on "a factor not even noted in the decision admitting"66 the contention (presumably, the presence of Chan Van Vo at the hearing), and (2) the Board took no steps to compel this witness' attendance.
Mr. Eddleman's arguments are without foundation. In originally addressing the five lateness factors, Mr.
Eddleman acknowledged the importance of Chan Van Vo's ability to appear. He made it clear to the Board that the third factor was met because he could present Chan Van Vo as a witness.67 Moreover, while the Licensing Board's order 65 Id. at 6.
66 Eddleman Brief at 2.
6 See, e.g., Tr. 5738 ("Mr. Van Vo is available, and he is available reasonably promptly . . . . [a]nd I would be prepared to put him on as a witness on these things."); 5742
("Mr. Van Vo, according to his counsel, is willing to j
(Footnote Continued) l I
7 a
25 admitting the contention did not explicitly mention that this witness' presence at any hearing was crucial-to its decision to admit Eddlbman 41-G, it is clear from the Board's order that this was the case. In narrowing the contention from a broad allegation of harassment at Shearon Harris to a specific allegation regarding the treatment of Chan Van Vo, the Board stated: "This contention should be understood as focusing on the reasons particular personnel actions were taken against a particular individual. The parties' attention should focus on particular incidents alleged in the Van Vo affidavit."68 Manifestly, such a specific contention, narrowly tailored to address'one person's experiences and impressions, could not be adequately litigated without that person's availability for cross-examination.69 1
(Footnote Continued)
He is available and has direct knowledge of appear . . . .
these matters as stated in his affidavit, so I think as to having a witness, we are okay."); 5743 ("Since (Chan Van Vol would be my witness, it doesn't depend much on my ability to cross, it just depends on my ability to put him on."); 5744
(" And my participation then would be basically just to get (Chan Van Vo] in here and make him available to bring out his information . . . . ").
68 Memorandum and Order (January 14, 1985) at 4.
0 Further, Mr. Eddleman's argument that "[i]t was never stated that Van Vo would not appear" (Eddleman Brief at 2) is frivolous and ignores the record of the Licensing Board's efforts to schedule a hearing on contention 41-G.
Chan Van Vo's counsel clearly stated to the Board that he (Footnote Continued)
7;O 26 Contrary to Mr. Eddleman's view, the Licensing Board had no independent obligation to " compel' Chan Van Vo's
, appearance. Had he so wished, Mr. Eddleman could have requested that the Licensing Board issue a subpoena compelling this witness' attendance.70 Mr. Eddleman did not do so. It is not the Licensing Board's function to act as an intervenor's advocate and prepare his case.
The Board's decision dismissing contention 41-G is, therefore, affirmed.71 .
(Footnote Continued) could not guarantee that his client would be available as a witness on the date that had been set for the hearing.
Neither did Mr. Eddleman or Chan Van Vo's counsel ever suggest an alternative date for the hearing at which the-witness could appear. Indeed, Chan Van Vo's counsel argued that the hearing should proceed without his client's appearance as a witness. See Tr. 7732, 7745-48, 7750-51.
O See 10 C.F.R. $ 2.720.
71 Mr. Eddleman also complains of the Licensing Board's threshold dismissal of his emergency planning exercise (EPX) contentions 4, 9, 10 and 11. The preliminary emergency planning exercise required by 10 C.F.R. Part 50, Appendix E, S IV.F, was conducted for the Shearon Harris facility on May 17-18, 1985. On September 30, Mr. Eddleman proffered twelve contentions based on the exercise. The Licensing Board admitted two and rejected the remaining ten because they failed to allege fundamental flaws with the offsite emergency response plan. On appeal, Mr. Eddleman asserts that because the Commission had not adopted the " fundamental flaw" standard, the Licensing Board lacked authority to apply it. He also contends that, in rejecting EPX 4, 9, 10 and 11, the Licensing Board impermissibly reached the merits of the four contentions.
Although at the time the decision below was rendered the Commission had not spoken on the use of a " fundamental (Footnote Continued)
27 We have conducted our customary sua sponte review of the decision and have found no errors requiring correction.
For the foregoing reasons, the Licensing Board's third partial initial decision, LBP-85-49, 22 NRC 899, is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD C, _h Y --
C. Jeqp Shoemaker Secretary to the Appeal Board (Footnote Continued) flaw" test, it has since expressly approved this standard.
See Long Island Lighting Co. (Shoreham Nuclear Power Scation, Unit 1) , CLI-86-117 23 NRC , (June 6, 1986)
(slip opinion at 5). The Commission therein made it clear that the term " fundamental flaw" means a "deficienc[y] which preclude [s] a finding of reasonable assurance that protective measures can and will be taken." Id. That same I decision also made it clear that this standarH is nothing j more than the long-standing requirement of the Rules of Practice that contentions must be pleaded with adequate
- bases and specificity. Id. See also 10 C.F.R. 5 2.714 (b) .
As to Mr. Eddleman's second argument (that the Licensing Board reached the merits of the contentions), we do not agree. The Board did not delve into the merits of the four contentions -- it merely applied the standard for admissibility of contentions endorsed by the Commission in .
Shoreham, i.e., it found that the contentions in question did not allege that the exercise demonstrated fundamental flaws in the emergency plan, or did not plead bases that, if shown to be true, would demonstrate a fundamental flaw in the plan. See Shoreham, 23 NRC at (slip opinion at 5).