ML20206U895

Brief Supporting Board 860428 Decision LBP-86-11 Allowing Licensee to Operate at Full Power,In Reply to W Eddleman & Conservation Council of North Carolina 860609 Appeal.W/ Certificate of Svc

ML20206U895
Person / Time
Site:	Harris, 05004700
Issue date:	07/09/1986
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-937 LBP-86-11, OL, NUDOCS 8607110222
Download: ML20206U895 (60)

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. 431 DCLKETED USNHC UNITED STATES OF AMERICA '66 JL 10 A11:19 NUCLEAR REGULATORY COMMISSION l

l OCKYTINl5'sNl}y' 1 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD BRANCH In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY g

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE FINAL LICENSING BOARD DECISION Thomas A. Baxter, P.C.

Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY Counsel for Applicants July 9, 1986 8607110222 860709 PDR ADOCK 05000403 GG PDH

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d DOLMETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE 0F ShnlARY 00CKETING A SEPvlCf.

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE FINAL LICENSING BOARD DECISION Thomas A. Baxter, P.C.

Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY Counsel for Applicants July 9, 1986 t

J TABLE OF CONTENTS Page TABLE OF AUTHORITIES......................................... 111 COUNTERSTATEMENT OF THE CASE................................... 1 ARGUMENT....................................................... 3 I. The Licensing Board Did Not Err in its Decision, Based Upon the Record Compiled at Evidentiary Hearings, Resolving CCNC Contention WB-3 (Drug Abuse During Construction) in Applicants' Favor........................ 3 A. Introduction......................................... 3 B. Applicable Standards................................. 7 C. The Undercover Drug Investigation. . . . . . . . . . . . . . . . . . . 10 D. Applicants' Drug Abuse Control Policies and Procedures...................................... 17 E. Extent of Employee Drug Activity.................... 18 F. Implications of Employee Drug Activity i on Harris Plant Construction Quality................ 21 i

G. Conclusion.......................................... 22 II. The Licensing Board Did Not Err in Its Decision, Based Upon the Record Compiled at Evidentiary Hearings, Resolving Eddleman Contention 57-C-3 (Nighttime Emergency

, Notification) in Applicants' Favor....................... 23 A. Introduction........................................ 23 i B. Informal Notification and Mobile Alerting........... 32 C. Consideration of Siren Failure Rates................ 37 a

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D. Official Alert and Notification System Test................................................ 39 E. Licensing Board Letters to Commission............... 40 F. Consideration of Tone Alert Radio Failures.......... 41 G. Credibility of Mr. Keast............................ 43 H. Mr. Eddleman's Proposed Findings.................... 46 i

I. Conclusion.......................................... 47

.i III. The Final Licensing Board Decision Was Properly Issued.......................................... 47 CONCLUSION.................................................... 50 1

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4 TABLE OF AUTHORITIES j Cases: Page(s)

I Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant),

LBP-85-5, 21 N.R.C. 410 (1985)............................ 2 LBP-85-28, 22 N.R.C. 232 (1985)........................... 2 LBP-85-49, 22 N.R.C. 899 (1985)........................... 2 LBP-86-11, 23 N.R.C. 294 (1986)....................... passim 1

i ALAB-837, 23 N.R.C. (May 29, 1986).................. 2,7

.; Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),

ALAB-802, 21 N.R.C. 490 (1985)......................... 9,46 Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 N.R.C. 470 (1978)................... 46 Duke Power Co. (Catawba Nuclear Station, I Units 1 and 2),

ALAB-355, 4 N.R.C. 397 (1976)............................ 45 i LBP-84-37, 20 N.R.C. 933 (1984), aff'd, ALAB-813, 22 N.R.C. 59 (1985)...................................... 33 Final Rule on Emergency Planning, CLI-80-40,

} 12 N.R.C. 636 (1980)............................... 24,26,27 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

! ALAB-788, 20 N.R.C. 1102 (1984)........................... 8 J

p2disiana Power & Light Co. (Waterford Steam Electric i

Station, Unit 3),

ALAB-732, 17 N.R.C. 1076 (1983).......................... 40 ALAB-812, 22 N.R.C. 5 (1985).............................. 8 CLI-86-1, 23 N.R.C. 1 (1986)............................. 48 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-419, 6 N.R.C. 3 (1977).............................. 38 I

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Cases: Page(s)

Pacific Gas and Electric Co. (Diablo Canyon Nuclear

-Power Plant, Units 1 and 2), ALAB-756, 18 N.R.C. 1340 (1983), aff'd, San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C.

Cir. 1984), partial rehearing granted on other grounds, 760 F.2d 1320 (1985)............................. 7 Philadelphia Electric Co. (Limerick Generating Station, Station, Units 1 and 2),

ALAB-819, 22 N.R.C. 681 (1985), review declined, CLI-86-5, 23 N.R.C. 125 (1986)............................ 8 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

LBP-82-46, 15 N.R.C. 1531 (1982)...................... 33,34 Union Electric Co. (Callaway Plant, Unit 1),

ALAB-740, 18 N.R.C. 343 (1983)........................ 7,8,9 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 N.R.C. 387 (1983)........... 46 1

l Regulations:

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lo C.F.R. $ 2.715(c)........................................... 4 lo C.F.R. $ 2.762(c)........................................... 2 10 C.F.R. $ 2.762(d)(1)........................................ 7 10 C.F.R. 5 2.764(f)(2)(1).................................... 50 lo C.F.R. $ 2.788(e).......................................... 50 10 C.F.R. 9 50.47(b)(5)....................................... 33 lo C.F.R. 5 50.57(a)(3)(1)..................................... 7 10 C.F.R. Part 50, Appendix E, 5 IV.D.3.................... 24,33 I

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4 Statutes:

Atomic Energy Act 42 U.S.C. $ 2133(d)....................................... 7 42 U.S.C. 5 2232(a)....................................... 7 4

Miscellaneous:

FEMA 43, " Standard Guide for the

Evaluation of Alert and Notification i Systems for Nuclear Power Plants"..................... 23,33 4

! Memorandum, to V. Stello from S. Chilk, re:

Nighttime Emergency Notification, I February 4, 1986......................................... 30 i

NUREG-0654, FEMA-REP-1/Rev. 1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness

in Support of Nuclear Power Plants,"

November, 1980............................... 23,32,33,36,37 i

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d July 9, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l

In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE FINAL LICENSING BOARD DECISION COUNTERSTATEMENT OF THE CASE On April 28, 1986, the Atomic Safety and Licensing Board's Final Licensing Board Decision was served upon the parties to this proceeding. See Carolina Power & Light Co. (Shearon Harris j Nuclear Power Plant), LBP-86-11, 23 N.R.C. 294 (1986). On May 7, 1986, intervenors Wells Eddleman and the Conservation Council of i

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North Carolina ("CCNC") filed a " Notice of Appeal from Final Li-censing Board Decision."l/ On June 9, 1986, these intervenors

filed " Appeal From Final Licensing Board Decision" (cited 1

1/ The Notice of Appeal states that it also is filed on behalf of the Joint Intervenors "as proponents of certain consolidated contentions." The Final Licensing Board Decision, however, re-solves three contentions of Mr. Eddleman, and one CCNC conten-tion. No consolidated contentions are involved, f

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hereafter as "Intervenors' Brief"). Pursuant to 10 C.F.R.

$ 2.762(c), Carolina Power & Light Company ("CP&L") and North Carolina Eastern Municipal Power Agency (collectively "Appli-cants") file this brief in reply and opposition to the appeal.

LBP-86-11, the Final Licensing Board Decision, was preceded by three partial initial decisiens. Appeals are pending before the Atomic Safety and Licensing Appeal Board from the Partial Initial Decision on Safety Contentions, LBP-85-28, 22 N.R.C. 232 (1985), and from the Partial Initial Decision on Emergency Plan-ning and Safety Contentions, LBP-85-49, 22 N.R.C. 899 (1985).

The Partial Initial Decision on Environmental Contentions, LBP-85-5, 21 N.R.C. 410 (1985), was affirmed by the Appeal Board in ALAB-837, 23 N.R.C. (May 29, 1986).

The Final Licensing Board Decision authorized the Director of Nuclear Reactor Regulation, upon making the other requisite findings, to issue to Applicants a license to operate the Harris plant at full power. LBP-86-11, supra, 23 N.R.C. at 408-09. The decision documented the Licensing Board's resolution of the four remaining contested issues in the proceeding. On appeal, CCNC challenges the decision on its Contention WB-3 (Drug Abuse During Construction), and Mr. Eddleman challenges the decision on his Contention 57-C-3 (Nighttime Emergency Notification). Mr.

Eddleman and CCNC jointly advance a third argument, which alleges that the issuance of the Final Licensing Board Decision was pre-mature. Applicants respond to these three arguments below, in the same order in which they are presented in Intervenors' Brief.

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e ARGUMENT I. The Licensing Board Did Not Err in Its Decision, Based Upon the Record Compiled at Evidentiary Hearings, Resolving CCNC Contention WB-3 (Drug Abuse During Construction) in Applicants' Favor A. Introduction CCNC filed " Request for Admission of new Contention WB-3 (Drug Abuse During Construction)," on January 18, 1985. The con-tention refers to an attached newspaper article for details and basis in support of its allegations. The article reports on i CP&L's participation with law enforcement in an undercover nar-cotics investigation at the Harris plant. The Licensing Board, over the opposition of Applicants and the NRC Staff,2/ subse-quently modified and admitted the contention 3/ to state that:

Drug use at the Harris Plant is widespread (see the attached newspaper article for de-tails and basis). Employees under the influ-ence of drugs are less able to follow proper procedures and tech specs for the installa-tion of electrical systems, pipe-fitting, and other safety-related work. Applicants' man-agement has failed to control drug use during the construction and further, has failed to reinspect all safety-related work done by known drug abusers.

2/ Applicants' Response to CCNC's Request for Admission of New Contention WB-3 (Drug Use During Construction), February 6, 1985; NRC Staff Response in Opposition to Conservation Council of North Carolina's Motion to Admit Proffered Contention WB-3 Regarding Drug Use, February 7, 1985.

l 3/ Licensing Board unpublished Memorandum and Order (Ruling on Contentions Concerning Diesel Generators, Drug Use and Harassment at the Harris Site), at 5 (March 13, 1985).

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Following discovery, Applicants filed a motion for summary disposition of CCNC Contention WB-3.4/ Thereafter, the Attorney General of North Carolina petitioned to participate in the adju-dication of this issue, pursuant to the provisions of 10 C.F.R. 5 2.715(c).1/ The North Carolina Attorney General ("NCAG") filed an accompanying response to Applicants' summary disposition mo-tion "[i]n an effort to assist the Board in ' developing a sound record'."g/ The supporting affidavit of Ms. S. L. Burch of the State Bureau of Investigation ("SBI") challenged only the rela-tively small part of Applicants' motion which addressed the 1984 undercover investigation at the plant.7/ CCNC later filed an opposition to Applicants' motion, with an affidavit by Ms. Patty Miriello, a former plant employee who claimed that personnel with an eddy current inspection contractor had used drugs.g/ The NRC Staff did not respond to Applicants' motion.g/

4/ Applicants' Motion for Summary Disposition of CCNC Conten-tion WB-3 (Drug Abuse During Construction), July 12, 1985.

5/ Petition to Intervene by the Attorney General of North Carolina, July 31, 1985. The unopposed petition was granted.

Tr. 8176.

g/ Response by the Attorney General of North Carolina to Appli-cants' Motion for Summary Disposition of CCNC Contention WB-3 (Drug Abuse During Construction), July 31, 1985.

7/ See Applicants' Reply to the Response by the Attorney Gener-al of North Carolina to Applicants' Motion for Summary Disposi-tion of CCNC Contention WB-3 (Drug Abuse During Construction),

August 16, 1985.

g/ Conservation Council's Response to Applicants' Motion for Summary Disposition of Contention WB-3, September 6, 1985.

9/ Letter to the Licensing Board from Stuart A. Treby, Assis-tant Chief Hearing Counsel, August 27, 1985.

The Licensing Board denied Applicants' motion in its entire-ty. Tr. 8221-24. In its ruling, the Licensing Board bifurcated the hearing into two phases. The first phase was to address whether or not there had been widespread drug use at the site, and to consider Applicants' program to deter drug activity. The second phase was to address the safety issue of construction quality, and Applicants' corrective actions.10/

Hearings on the Phase One issue were held in Apex, North Carolina, on September 30, and October 1 through 3, 1985. Direct evidence was presented by Applicants (ten witnesses), CCNC (four witnesses),11/ the Attorney General of North Carolina (three wit- l nesses), and the NRC Staff (four witnesses). The hearing on the i

Phase Tao issue was held in Raleigh, North Carolina, on November 12, 1985. Direct evidence was presented only by Applicants (six witnesses) and the NRC Staff (two witnesses). The Licensing Board correctly observed that "[t]he record on Contention WB-3 is extensive . . .". LBP-86-11, supra, 23 N.R.C. at 302.

The same may be said of the Licensing Board's decision on the contention, which fills well over one hundred pages of the slip opinion. By any measure, the Licensing Board carefully 10/ Tr. 8265-66; Licensing Board unpublished Order (Concerning Time, Place and Other Matters Related to Hearing on Drug Use Con-tention) at 1-2 (Sept. 18, 1985).

11/ Three of the CCNC witnesses were employees of the Wake Coun-ty Sheriff's Department (WCSD), who appeared in compliance with a subpoena issued by the Licensing Board at CCNC's request.

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, weighed the entire record and the arguments advanced by the par-l ties, and fully explained the reasoning behind its conclusions.

l The Licensing Board found that "[d] rug'use at the Shearon Harris construction site has not been ' widespread' as alleged in the In-l

tervenor's contention."12/ Id. at 299. It also held that Appli-i i cants had " convincingly shown that their QA program has not been l

! compromised by drug use." Id. at 347-48.

Drug use has not had any discernible effect on the QA program or on the quality of work, as accepted under that program, at Shearon Harris. There is reasonable assur-ance that defective work, arising out of drug ' '

use or any other cause, will be detected by the QA program. l s Id. at 364. l CCNC challenges the Licensing Board's thorough decision with i

! an appellate brief of four and one-half pages. CCNC charges:

that the Licensing Board " discounted much of the relevant testi-mony from the record" (Intervenors' Brief at 3); that "[a] review I

of the entire record will show overwhelmingly that drug abuse on i

site was widespread" (id. at 5); that "[t]he Licensing Board >

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erred in making findings that were mere suppositions without any j i  !

basis in the record" (id.); and that "[a] review of the entire ,

l 12/ Note that CCNC flatly misrepresents this conclusion in its  !

l argument that "THE LICENSING BOARD ERRED IN ITS DETERMINATION

, THAT THE WIDESPREAD DRUG ABUSE AT THE HARRIS PLANT HAD NO EFFECT  !

ON THE QUALITY OF CONSTRUCTION . . . . See Intervenors' Brief i at 2. Similarly, the Licensing Board was presented with numerous i instances of misrepresentation of the record by CCNC in its pro- l posed findings. See LBP-86-11, supra, 23 N.R.C. at.306 (1 13), j 307-08 (1 17), 329 (1 82), 351 n.27 (1 151).  ;

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record shows conclusively that drug abuse by employees has been and will continue to be a major problem." Id. at 6. Yet these platitudes -- and CCNC's entire brief on this contention -- are .

not supported by a single citation to the evidentiary record.

See 10 C.F.R. 5 2.762(d)(1) (for each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided); Shearon Harris, supra, ALAB-837, slip op. at 9-10 (May 29, 1986).

B. Applicable Standards The Licensing Board canvassed the regulatory requirements applicable to CCNC Contention WB-3, and correctly concluded that l the standards applicable to construction quality assurance 13/

govern here. LBP-86-11, supra, 23 N.R.C. at 303-04. The two-pronged test utilized by the Licensing Board to examine this con-tention was:

(1) whether ascertained construction errors caused by employees under the influence of drugs have been corrected; and (2) whether there has been a pervasive failure to carry out the quality assurance program as a result of employees working under the influence of drugs.

13/ What is required is a finding of reasonable assurance that the plant, as built, can and will be operated without endangering the public health and safety. 42 U.S.C. $$ 2133(d), 2232(a); 10 C.F.R. S 50.57(a)(3)(i); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 N.R.C.

1340, 1345 (1983), aff'd, San Luis Obispo Mothers for Peace v.

NRC, 751 F.2d 1287, 1319-21 (D.C. Cir. 1984), partial rehearing

) granted on other grounds, 760 F.2d 1320 (1985); Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C. 343, 346 (1983).

)

Id. at 304 (footnote omitted).14/ On appeal, CCNC endorses the Licensing Board's presentation of the applicable standards. In-tervenors' Brief at 2. Yet, CCNC has never identified a single alleged construction error caused by an employee under the influ-ence of drugs.15/

At the pleading stage, the Licensing Board rejected Appli-cants' position that the proposed contention lacked an asserted basis because it did not link alleged drug use to any particular uncorrected construction deficiency.ls/ Yet, even following ac-cess to full discovery on the contention, CCNC still was not able to identify a single alleged construction deficiency in its oppo-sition to Applicants' motion for summary disposition. Neverthe-less, the motion was denied. As a result, the burden was placed upon Applicants to defend the implementation of its NRC-approved construction quality assurance program against a mere 14/ Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 N.R.C. 681, 729 (1985), review declined, CLI-86-5, 23 N.R.C. 125 (1986); Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 N.R.C. 5, 14-15 (1985); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 N.R.C. 1102, 1141 (1984); Callaway, supra, ALAB-740, 18 N.R.C. at 346 (1983).

15/ It follows that CCNC has not shown that any such errors have gone uncorrected, or that there has been a consequent failure to carry out the quality assurance program.

16/ Memorandum and Order of March 13, 1985, supra n.3, at 6.

But cf. Limerick, supra, ALAB-819, 22 N.R.C. at 725 (1985) (even discrete identified deficiencies are inadequate bases for the admission of a contention which seeks to litigate a complete breakdown in quality assurance).

hypothesis.17/

Applicants sought to rebut the presumption of possible con-struction deficiencies due to drug use by site employees by establishing that (1) any employees who might have been working at the Harris plant while impaired by drug use would not generate errors which are different in kind from those made by other employees and which are identified by QA personnel; (2) all safety-related work performed by craft workers is subjected to quality inspections to identify and ensure correction of deficiencies; and (3) the work of QA inspection personnel itself is routinely subject to surveillance and audits and, if an in-spector is implicated in drug activity, to re-evaluation or phys-ical reinspection. Thus, Applicants' case sought to prove that a well conceived, properly implemented and monitored QA program is capable of detecting errors from any source (including drug use),

and that Applicants' have such a construction QA program at the Harris plant site. Tr. 9989.

Mysteriously -- given its present endorsement of the stan-dards by which the contention is to be decided -- at the hearing on construction quality CCNC essentially did not challenge the 17/ As the Licensing Board observed, an operating license appli-cant typically is not called upon to defend its entire construc-tion quality assurance program unless it is first shown that such

'an inquiry is warranted, based upon an examination of specific deficiencies. See LBP-86-11, supra, 23 N.R.C. at 304 n.4; Callaway, supra, ALAB-740, 18 N.R.C. 343 (1983); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 N.R.C. 490, 502 (1985).

effectiveness of Applicants' quality assurance program. See LBP-86-ll, supra, 23 N.R.C. at 355.

CCNC offered no proof that a breakdown of CP&L's QA program had occurred due to drug use by quality inspectors, nor did CCNC al-lege any specific construction deficiencies.

Indeed, the record is devoid of proof of any deficiency in construction caused by drug use.

Id. at 348. On appeal, CCNC continues to ignore the uncontradicted record on the safety issue -- which is dispositive of the contention. Instead, CCNC focuses upon the estimate of the extent of drug activity among site employees, with no more than a continuation of its initially advanced hypothetical link to construction quality.

C. The Undercover Drug Investigation While the results of the 1984 undercover narcotics investi-gation at the Harris site formed the sole asserted basis for CCNC Contention WB-3 when it was proposed, the Licensing Board proper-ly declined to ground its finding on the extent of drug use sole-ly on the basis of one undercover investigation. Id. at 318.

Rather, the Licensing Board considered all of the relevant evi-dence on this question, including data on the number of employees terminated for suspected drug activity, Applicants' drug abuse control policies and implementing procedures, site accident rates, the quantity of drugs confiscated, the age of site workers, and the observations of witnesses who have worked at the

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l site. Id. at 305. CCNC, however, devotes much of its brief on i appeal to the Licensing Board's assessment of the undercover in-vestigation.lg/

According to CCNC, "[t]he Board discounted direct and uncontradicted testimony by professional law enforcement person-f nel from the State Bureau of Investigation and the Wake County Sheriff's Department regarding the effect of metal detectors and dogs on prematurely terminating the undercover investigation

! . . .". Intervenors' Brief at 4. First, the Licensing Board did i

not find that the investigation was terminated prematurely.19/

Second, the testimony on the effect of metal detectors and dog

searches certainly was contradicted -- and not only by Appli-l l cants' witnesses King and Joyner, who are commissioned law en-forcement officers. See Applicants' Investigation Testimony at 16-19, 38-39 (Hindman, Bensinger).

Ig/ While the error is immaterial, we note that the Licensing Board incorrectly described the confidential informant used in the investigation as "a former CP&L employee." LBP-86-11, supra, 23 N.R.C. at 306. In fact, the informant had been an employee of Davis Electric Company, a sub-contractor of Daniel Construction Company. Applicants' Testimony of William J. Hindman, Jr.,

Michael W. King, D. Glenn Joyner, Michael L. Plueddemann and Peter B. Bensinger on the Undercover Drug Investigation (CCNC Contention WB-3), ff. Tr. 8471 (" Applicants' Investigation Testi-mony"), at 13.

19/ In Applicants' view, the investigation had run its course when it concluded. See Applicants' Investigation Testimony at 32-41 and Attachment 5; Tr. 8527 (Joyner), 8589 (King). It is also revealing that when asked whether the investigation had been terminated prematurely, the WCSD witnesses testified merely that they thought more could have been accomplished in a longer inves-tigation "as in any operation." Tr. 9190 (Lanier, Self, Hensley).

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The Licensing Board properly found that the use of metal de-tectors for rendom searches of exiting employees had little, if any, effect on the undercover operation. The metal detectors had been requested by the construction manager prior to the inception of the undercover operation, and their sole purpose was to curb tool theft. Indeed, the detectors do not identify drugs, only metal, and there is no credible basis for speculating that these searches adversely affected the investigation. LBP-86-11, supra, 23 N.R.C. at 307-08; Applicants' Investigation Testimony at 16-19; Tr. 9197 (Hensley).

As to the dog searches, the SBI's own undercover agent con-tradicted his supervisor's testimony that the proposed searches would have threatened the investigation. LBP-86-11, supra, 23 N.R.C. at 310; Statement of Don Williams, ff. Tr. 9274, at 12.

CP&L's experienced law enforcement officers 20/ and the former Ad-ministrator of the U.S. Drug Enforcement Administration testified that the random dog searches would not have posed a threat to the safety of the undercover agents, while acknowledging that such searches would tend to inhibit the level of drug activity.

20/ Mr. King, Supervisor of CP&L's Construction Security Unit, has been involved in security work for CP&L since 1978. He pre-viously spent over seven years on the Raleigh Police Department, where his assignments included narcotics (including undercover) investigations. Mr. Joyner, CP&L's Construction Security Agent at Harris, has been employed in security positions on site since 1979. He has nine years of experience as an Investigator with the Raleigh Police Department, and has received narcotics inves-tigation training. Applicants' Investigation Testimony at 2-5.

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l Applicants' Investigation Testimony at 37-39; Tr. 8562-65 (King). I The Licensing Board correctly concluded that "the occasional presence of dogs on site would not have presented a significant incremental threat to the safety of the undercover agents," and declined to attribute to CP&L responsibility for the law enforce-ment agencies' decision to conclude the investigation. See LBP-86-11, supra, 23 N.R.C. at 310. Again, CCNC expresses dis-agreement with the Licensing Board's assessment of the evidence, but does not explain why the record would compel a contrary re-sult.21/ See id. at 308-10.

CCNC questions the Licensing Board's reliance upon the views of Applicants' witness Bensinger, who had no involvement with the investigation. Intervenors' Brief at 4. Mr. Bensinger's opin-ions on the investigation obviously are entitled to weight. His views were especially valuable because of his unique experience as a former narcotics law enforcement professional and as a con-sultant to industry and government on drug abuse control. From this vantage point, Mr. Bensinger was able to assist the Licens-ing Board in evaluating the somewhat conflicting goals -- during 21/ As the Licensing Board notes, the narcotic detection dog searches did not begin until after the undercover investigation concluded. LBP-86-11, supra, 23 N.R.C. at 309. Later, however, when discussing the potential that dogs would have exposed the agents, the verb tense utilized by the Licensing Board implies that the dog searches took place during the investigation. Id.

at 310 ("there is no evidence that the dogs were consistently taken to stash areas reported by the undercover agents"). If the words "would have been" are substituted for "were," the finding is unambiguously correct.

I an undercover operation -- of law enforcement and the employer.22/ See, e.g., Tr. 8586-87 (Bensinger) (CP&L could not cut back on safety and security for misconceived, possible per-ceptual problems involving the investigation).

CCNC also challenges the Licensing Board's conclusion that the investigation participants had different goals and perspec-tives. Intervenors' Brief at 4; LBP-86-11; supra, 23 N.R.C. at 311-13. CCNC argues that it is untenable to conclude that CP&L was interested in curbing drug activity,23/ since a 1982 investi-gation identified 29 employees, and only 8 were terminated that year. Inter /enors' Brief at 4. In contrast, the record shows that a five to six week intelligence operation in 1982 identified 29 individuals, that not all of them were determined on follow-up to be involved in drug activity, but that those who were 22/ Mr. Bensinger served for five and one-half years as Adminis-trator of the U.S. Drug Enforcement Administration. His con-sulting firm advises many companies and organizations, including the Edison Electric Institute and utilities operating over twenty nuclear power plants. Applicants' Testimony of Peter B.

Bensinger, John D. Ferguson, Garry W. Flowers and A. Reid Pannill on Drug Abuse Control Policies and Training (CCNC Contention WB-3), ff. Tr. 8326 ("Bensinger et al."), at 2-4 and Attachment A.

23/ CONC also states that it is unclear how the Licensing Board reached Finding 35 ("CP&L's overriding concern was with pre-venting drugs from entering its site"), or the basis for it. In-tervenors' Brief at 5. In fact, the Licensing Board devotes Findings 32 to 34 to an explanation of Finding 35. LBP-86-11, supra, 23 N.R.C. at 311-13; see also Applicants' Investigation Testimony at 34-36. It is also a conclusion the Licensing Board could reach from its assessment, documented throughout its deci-sion, of CP&L's vigorous drug abuse control efforts.

determined to be involved with drugs had been released. CP&L simply had not researched the data to determina the number of terminated employees derived from the list of 29. Tr. 8503-04, 8812-13 (King). The inference -- that 21 employees known to be involved in drug activity were allowed to continue employment --

is completely incorrect.

CCNC then speculates that Applicants were " attempting to terminate the [1984] drug investigation less it prove too suc-cessful and thus call even more into question the quality of the plant construction." Intervenors' Brief at 4. CCNC cites noth-ing in support of this careless accusation, because there is no record support for it. Neither does CCNC address the substantial evidence which contradicts this charge. The record is clear that CP&L requested law enforcement to undertake the 1984 undercover investigation. LBP-86-11, supra, 23 N.R.C. at 306. In addition, CP&L provided law enforcement with the requested confidential in-formant, available intelligence on suspected employees and likely locations of drug activity, and necessary " cover" for the agents so that they had unrestricted site access at any time. Mr.

Hindman, CP&L's Manager, Harris Project Administration, made him-self available to the agents if they needed assistance or encoun-tered problems. Mr. Joyner of CP&L Security and Mr. Plueddemann of Daniel Industrial Relations were available to the operatives on a daily basis, and did all of the follow-up work to make posi-tive identification of each person reported to have used, l

possessed or sold drugs. Id.; Applicants' Investigation Testi-mony at 11-16; Tr. 8568 (King), 9195 (Hensley). It is clear that CP&L worked to support and cooperate with this investigation, which CP&L was responsible for initiating.

CCNC selects one word (" thought") in the midst of a thororgh Licensing Board discussion of agent Hensley's testimony, and at-tempts the inference that the Licensing Board was " making find-ings that were mere suppositions without any basis in the record." Intervenors' Brief at 5-6. Here, the Licensing Board was evaluating the scope of Hensley's investigation, and merely characterized its perception of Hensley's testimony 24/ -- which is discussed thoroughly in Findings 40 through 45. LBP-86-11, supra, 23 N.R.C. at 314-16. The Licensing Board is entitled and is expected to draw conclusions from factual testimony -- even where that conclusion is not explicitly stated by the witness.25/

24/ While unrelated to this point, Deputy Hensley's testimony elsewhere is misreported. During the investigation, he purchased 16 grams of hashish, not 16 ounces. Compare LBP-86-11, supra, 23 N.R.C. at 323 with Tr. 9226-27.

25/ Similarly, CCNC attacks Finding 26, asserting that the Li-censing Board went outside the record and proposed findings. In-tervenors' Brief at 5. In fact, the Licensing Board cites the testimony on which it based its views, which were based as well upon Findings 20 through 25. LBP-86-11, supra, 23 N.R.C. at 310.

D. Applicants' Drug Abuse Control Policies and Procedures No specific attack is mounted against any of the Licensing Board's findings on the.>:t'fectiveness of Applicants' drug control policies and procedures, which meet or exceed the Edison Electric Institute's " Guide to Effective Drug and Alcohol / Fitness for Duty Policy Development" (August 1985). LBP-86-ll, supra, 23 N.R.C.

at 333-34. The Licensing Board found that:

CP&L's anti-drug program is well con-ceived and vigorously enforced. . . . [W)e ,

do not believe that further anti-drug mea-sures could be taken to reduce significantly the rate of drug use at the Harris site, ,

short of cost-ineffective and/or Draconian actions.

Collectively, these measures send a simple message to the employees: if you use drugs ,

at Shearon Harris you will probably get r caught and, if caught, you will be fired.

Id. at 299, 346.

CCNC weakly asserts that the Licensing Board made much of the program presented by Applicants "on paper." Intervenors' Brief at 5. It is unclear what other medium could have been em-ployed.26/ The key personnel who implement Applicants' program i

testified, and the record is replete with evidence of its 26/ It is routine, in Applicants' experience, to use paper in presenting one's case in litigation. In this hearing, however, a live demonstration of a narcotic detection dog search was presented by Applicants, to illustrate one element of the pro-gram. LBP-86-11, supra, 23 N.R.C. at 338.

t t

t

. I existence. See generally Bensinger et al.; Applicants' Exs.

30-40. Staff witness Prevatte, NRC's Senior Resident Inspector for Construction at the Harris site, testified that he has made f first-hand observations in the field of the implementation of the  !

r drug abuse control program at the site. Tr. 8677. He further i testified that CP&L's program as implemented is having a positive I effect in reducing drug activities on the site. Tr. 8768. Not i I

in its direct case, in its cross-examination, in its proposed t findings or in its brief on appeal has CCNC identified a single element of the program documented in the record which has not been implemented in fact.

f i

l

( E. Extent of Employee Drug Activity '

i i  ;

Remarkably, CCNC accuses the Licensing Board of weighing i pieces of evidence on the extent of drug activity in isolation ,

L from the others. Intervenors' Brief at 4-5. In contrast, the Licensing Board took great pains to relate the range of evidenti-i ary sources and assess them in an integrated fashion to reach its j

overall conclusions about alleged widespread drug use. See ,

LBP-86-11, supra, 23 N.R.C. at 343-48.  !

As an example of this alleged deficiency, CCNC cites the Li- l t

censing Board's reliance on the personal observations of Appli-cants' witnesses who worked at the site, and its unwillingness to rely upon the testimony of CCNC witness Miriello. Intervenors' Brief at 5. First, the observations of persons working at the  !

6 f

1 I

site were but one of a number of evidentiary sources considered I by the Licensing Board. Second, CCNC has not cited an example of a piece of evidence in support of the contention which was not given appropriate weight because of its isolated treatment. Ms.

Miriello's testimony was given "very little weight" because of i

! her bias, contradictions in her testimony, misrepresentations, and answers that were difficult to believe. See LBP-86-11,

supra, 23 N.R.C. at 325-26. Further, the Licen;ing Board did not rely alone upon the observations of CP&L employees, but relied as well on the observations of an NRC inspector and the WCSD under-3 cover agent. Id. at 327, 345-46. In addition, Officer Mathias,

! who conducts canine searches for narcotics investigations by the 1

Raleigh Police Department and is in charge of its canine unit,22/

testified as follows:

i My opinion is that there is not wide-

.! spread drug use at the SENPP site. This opin-ion is based solely upon the two searches I 1

conducted at the site. My dog made indica-tions only on the drugs hidden by CP&L secu-rity personnel. He searched large areas and ,

made no indications as to controlled sub-stances. If drugs were used on a widespread basis as alleged then they would have been present in some of the areas searched. Based upon the dog's abilities and his lack of in-

, dications, I do not feel that there is an on-site drug problem.

I i

i l

4 22/ Applicants' Testimony of Dana B. Mackonis and Kenneth A.

1 j

Mathias on Use of Drug Detection Dogs (CCNC Contention WB-3), ff.

. Tr. 8993 (Mackonis and Mathias"), at 2-4; Tr. 8995 (Mathias).

I i

i 3

I Mackonis and Mathias at 12-13; Tr. 8995-96 (Mathias).

r Based upon its overall assessment of the record, the Licens-f ing Board estimated "that drug use has ranged at various times from 3 to 4.5% of the work force at the Shearon Harris site."

LPB-86-11, supra, 23 N.R.C. at 299. As Mr. Bensinger testified, no one can arrive at a certain quantitative estimate of the ex-tent of drug use. Tr. 8964. The Licensing Board nevertheless attempted to derive a quantitative estimate. While one may ques-tion elements of the analysis,2g/ the Board did rely as well on J

other persuasive evidence on levels of use which support its con-clusion "that drug use at the Harris site has been at what we consider to be low levels . . . ". LBP-86-11, supra, 23 N.R.C.

at 346. CCNC claims the usage rate is "much higher than the 4.5%

found by the Board," but advances not a shred of evidence to sup-port its view. Intervenors' Brief at 5.

In an attempt to address the word " widespread" -- used by CCNC in the contention -- the Licensing Board compared its esti-mate of drug use at Harris with the levels of drug use in the na-tional work force.29/ The Licensing Board also used the ordinary 2g/ For example, the Licensing Board employed a 1985 site popu-lation work force number of about 6,000 -- the daily average.

LBP-86-11, supra, 23 N.R.C. at 343-45. This ignores the turnover rate of 300 per month, however. In 1985, there were nearly 10,000 employees subject to potential termination for drug activ-ity (300 new employees and 300 employees leaving per month). Tr.

8964-65 (Bensinger).

J )$/ The Licensing Board did not, as CCNC states, consider the prevalence of drugs in the American society at large in defining

" widespread." Compare Intervenors' Brief at 3 with LBP-86-11, supra, 23 N.R.C. at 347.

, t i

_,,__...,m. _

meaning of the word " widespread," and found that it does not apply to a situation where less than 5% of a group are engaging in an activity. LBP-86-11, supra, 23 N.R.C. at 347. CCNC com-plains about the Licensing Board's interpretation of " wide-spread," but does not advance a different one. Intervenors' Brief at 3.

F. Implications of Employee Drug Activity on Harris Plant Construction Quality CCNC points out that "most of the society at large is not doing safety-related work at a nuclear power plant." Interve-nors' Brief at 3. This is true. It is also true that most of society is not subject to a vigorous anti-drug program such as i CP&L implements on the Harris site, and does not have its work checked thoroughly by a quality assurance program -- which CCNC has not even attempted to discredit.

When CCNC argues -- without record citation -- that appar-ently a substantial proportion of safety-related work in 1979-1983 was being done by workers abusing drugs, Intervenors' Brief at 3, it not only speculates entirely, but ignores the effective QA program which was in place. The record is clear on the point that errors made by any employee impaired by drug use would not be different in kind from other errors which are identified through the construction QA program.30/ CP&L's QA attribute 30/ Applicants' Testimony of Dr. Robert L. DuPont, Jr., on the Effects of Employee Drug Use (CCNC Contention WB-3), ff. Tr.

9994, at 13; LBF-86-11, supra, 23 N.R.C. at 350, 352.

l I

l

surveillance program -- which has included reinspections of sam-ples of safety-related work from early phases of construction --

". . . is convincing evidence that the Shearon Harris overall quality assurance program is effective . . .". LBP-86-11, supra, 23 N.R.C. at 357. Staff witnesses confirmed the effectiveness of the construction QA program.31/ Staff witness Prevatte testified that "the inspection program at Harris is one of Applicants' strengths and that the program has the ability to identify safety-related hardware deficiencies regardless of the cause of the deficiency."32/

G. Conclusion Intervenors' Brief gives no basis upon which to doubt the Licensing Board's painstakingly derived conclusion that drug use among Harris employees has not been widespread. CCNC has not identified any construction deficiency attributable to drug ac-tivity by a Harris employee. The appeal totally ignores the proven effectiveness of the Quality Assurance program in identi-fying for correction any such errors which may have occurred. In short, the Licensing Board correctly decided CCNC Contention WB-3. There is reasonable assurance that the Harris plant, as 31/ Testimony of Paul Fredrickson and Richard Prevatte for the NRC Staff Regarding Contention WB-3's Allegation Concerning Reinspection of Work Performed by Persons Suspected of Drug Abuse, ff. Tr. 10,166, at 6-11.

32/ Id. at 8.

l

b built, can and will be operated without endangering the public health and safety.

II. The Licensing Board Did Not Err in Its Decision, Based Upon the Record Compiled at Evidentiary Hearings, Resolving Eddleman Contention 57-C-3 (Nighttime Emergency Notification) in Applicants' Favor A. Introduction As noted by the Licensing Board, Eddleman Contention 57-C-3 challenged the ability of the Harris alert and notification sys-tem to alert the public on a summer night when most people are asleep. LBP-86-11, supra, 23 N.R.C. at 300. Following discov-ery, Applicants filed a motion for sumary disposition of this

" nighttime notification" contention, describing a public alerting system comprised of three elements: fixed sirens, informal noti-fication, and mobile alerting. Applicants there took the posi-tion -- maintained throughout this proceeding -- that, where fixed sirens are selected as the means of meeting the Commis-sion's regulations, the numerical acceptance criteria are quite clear: under average summer daytime conditions, the siren sound level must exceed either 60 or 70 dB (depending upon population density).33/ See generally id. at 367. Thus, the numerical criteria -- established in NUREG-0654 and FEMA-43, expressly acknowledged by the Commission, and relied upon by FEMA and the 33/ See Applicants' Motion for Summary Disposition of Eddleman 57-C-3, November 2, 1984.

b t

NRC Staff in their compliance reviews of siren systems across the country -- served as the basis for Applicants' motion for summary disposition of this contention. See Final Rule on Emergency

Planning, CLI-80-40, 12 N.R.C. 636, 639 n.3 (1980); Testimony of Thomas F. Carter Regarding Eddleman Contention 57-C-3, ff. Tr.

t 9690 (" Carter"), at 7-8; LBP-86-ll, supra, 23 N.R.C. at 367.

The Licensing Board denied Applicants' motion for summary disposition on the ground that the NRC/ FEMA 60 dB criterion was not binding on the Board and the parties. Rather, the Licensing Board held that Applicants were required to specifically demon-

] strate that the siren system provides "the capability to essen-  ;

I tially complete the initial notification of the public . . .

within about 15 minutes." 10 C.F.R. Part 50, Appendix E, 5 IV.D.3; Memorandum and Order (Ruling on Eleven Summary Disposi-tion Motions), at 2-4 (Feb. 27, 1985). Eddleman 57-C-3 was sub-sequently the subject of two separate sessions of evidentiary hearings (a total of four days) before the Licensing Board.

i At the initial hearing, Applicants presented testimony on i

! the system of 69 fixed sirens, informal notification, and mobile alerting. Applicants' direct case consisted of the testimony of three impressive experts. Mr. David Keast -- an engineer spe-

cializing in acoustics, with extensive experience in public j alerting systems for nuclear power plants -- estimated the per-1

{ centage of households in the Harris EPZ which would be alerted by

! the operation of the sirens on a hot summer night. Dr. Dennis l

l  !

Mileti, a sociologist with particular expertise in public re-sponse to emergencies, addressed the informal notification pro-cesses which would operate in the event of an emergency. Mr.

Alvin Joyner, an official with the Division of Emergency Manage-ment of the North Carolina Department of Crime Control and Public Safety, completed Applicants' panel, describing the extensive system of mobile alerting in place throughout the Harris EPZ.34/

The NRC Staff / FEMA also presented a distinguished panel of experts. Mr. Tom Carter and Dr. Van Lee, consultants to FEMA in the evaluation of public alert systems for nuclear power plants, summarized the NRC and FEMA requirements for public alert systems and presented their predictions of the acoustical performance of the Harris siren system. An eminent expert in the field of psychoacoustics, Dr. Karl Kryter, addressed the arousal of people from sleep in response to the operation of the Harris siren sys-tem. The final member of the NRC Staff / FEMA panel was Dr. Jiri Nehnevajsa, a sociclogist specializing in disaster research, whose testimony addressed informal notification processes.35/

34/ Testimony of David N. Keast, Alvin H. Joyner and Dennis S.

Mileti on Eddleman 57-C-3 (Night-time Notification), ff. Tr. 9375

("Keast et al.").

35/ Carter; Testimony of Van M. Lee Regarding Eddleman Conten-tion 57-C-3, ff. Tr. 9690 (" Lee"); Testimony of Karl D. Kryter Regarding Eddleman Contention 57-C-3, ff. Tr. 9690 ("Kryter I");

and Testimony of Jiri Nehnevajsa Regarding Eddleman Contention 57-C-3, ff. Tr. 9690 ("Nehnevajsa").

,.+--g, ,

-W +

Following these hearings, the interested parties submitted proposed findings of fact and conclusions of law, and the Licens-ing Board commenced its deliberations. In the course of its de-liberations, the Licensing Board " discovered gaps and ambiguities in the record" precluding, in its view, the definitive resolution of certain issues presented by the contention. By its January 16, 1986 " Memorandum and Order (Limited Reopening of the Record on Eddleman Contention 57-C-3)" (" January 16 Order"), the Licens- ,

ing Board reopened the record for a further evidentiary hearing in the limited areas described in the order.

The Licensing Board's January 16 Order emphasized that the record was not being reopened on " informal notification" or on mobile alerting. Nor was the record reopened on actual sound levels in the Harris EPZ. January 16 Order at 1. Rather, the Licensing Board's concerns generally focused on the number of people who would be alerted by the sirens in different parts of the EPZ, depending upon which set of arousal data is used. In particular, the Licensing Board requested testimony on the appli-cability of a 1962 German study of the effectiveness of sirens in alerting a sleeping population (the "Krallmann" study). January 16 Order at 9; Eddleman Ex. 74.36/ Further, relying on the Com-mission's decision in Final Rule on Emergency Planning, 36/ None of the witnesses at the initial hearings were aware of the existence of this report. Indeed, the Licensing Board and the parties did not receive translated copies of the study until approximately one month after the initial hearings.

CLI-80-40, 12 N.R.C. 636 (1980) (ruling on a petition for recon-sideration of the 15-minute notification requirement), the Li-censing Board indicated its intention to "make separate findings. i l

on the arousal capabilities of the Harris siren system within (1) a 5-mile radius of the plant and (2) the area between 5 and 10 miles of the plan ." January 16 Order at 2. The January 16 Order set forth the Licensing Board's preliminary computations on siren arousal probabilities for the first 5 miles of the EPZ, and invited the parties to comment on those calculations. In addi-tion, the Licensing Board requested testimony addressed to siren arousal probabilities for the area from the 5-mile radius to the boundary of the EPZ. January 16 Order at 6-8. Finally, the Li-censing Board requested that Applicants provide information on the possibility of a supplemental alerting system within the first 5 miles of the EPZ. January 16 Order at 10. In the inter-est of the prompt resolution of the issue, Applicants subse-quently announced their decision to provida tone alert radios to all households within the first 5 miles of the EPZ. Tr. 10,269.

In the reopened hearings, Mr. Keast first appeared with Dr.

Kryter, with the two testifying "on a roundtable basis," largely on the several sets of arousal data in the record.37/ In 37/ Additional Testimony of David N. Keast on Eddleman 57-C-3 (Nighttime Notification), ff. Tr. 10,471 ("Keast"); Testimony of Karl D. Kryter Concerning Memorandum and Order (Limited Reopening of the Record on Eddleman Contention 57-C-3), ff. Tr. 10,479

("Kryter II").

addition, Applicants presented a separate panel of experienced professionals to address the tone alert radio program being im-plemented within the first five miles of the EPZ.38/ That panel was comprised of Messrs. Keast and Joyner, as well as Mr. Ralph Goodwin (a Senior Specialist-Emergency Preparedness with CP&L) and Mr. Dewey Overman (a Principal Engineer-Telecommunications Engineer with CP&L). Mr. Eddleman presented ne witnesses at the hearings on Eddleman 57-C-3.39/

On the basis of its review of the record, the Licensing Board resolved Eddleman 57-C-3 in favor of Applicants and ad-3 versely to Mr. Eddleman. After a detailed analysis of the evi-dentiary record, the Licensing Board ultimately concluded that:

(D]irect alerting by the siren system can be expected to be approximately 84% of the EPZ households and that, with consideration of " informal" alerting, siren induced alerting would total approximately 91%

throughout the Harris EPZ in 15 minutes.

That 91% figure clearly satisfies the 15-minute notification requirement for the 5-to-10 mile outer area of the EPZ. In ad-dition, route alerting with police and fire vehicles is an integral part of the Harris emergency plan. . . . With the route alerting and continued "iniormal alerting,"

38/ Testimony of H. Ralph Goodwin, Alvin H. Joyner, David N.

Keast and Dewey B. Overman, II on Eddleman Contention 57-C-3 (Nighttime Notification), ff. Tr. 10,723.

39/ At the reopened hearings, Mr. Eddleman filed direct testi-mony by Mr. Jesse Riley. Most of this testimony was excluded, based on objections of Applicants and the NRC Staff / FEMA. The remainder of the testimony was admitted, without cross-examination, pursuant to a stipulation among the parties.

Accordingly, Mr. Riley did not appear as a witness at the hear-ings. Tr. 10,682-709; Eddleman Ex. 75.

l __ _ _ _ , . --_ - - -

. l

. . . the required " essentially 100%" cov-erage of the entire EPZ can be completed in 45 minutes.

With respect to the first 5 miles of the Harris EPZ, . . . Applicants' proposed use of tone alert radios in combinaton with the siren system and, with consideration of the effects of " informal alerting," should re-sult in an aggregate alerting level of 98.5%. The Board concludes that the inde-pendence and partial redundancy of the siren and radio systems demonstrates com-pliance with the requirement of " essential-ly 100%" alerting in 15 minutes in the first 5 miles of the Harris EPZ.

LBP-86-11, supra, 23 N.R.C. at 396-97. Thus, while the Licens-

, ing Board determined that the combination of sirens and in-formal notification would alert approximately 91% of the popu-lation within 15 minutes, the Licensing Board further held --

as a matter of first impression -- that the " essentially 100%"

standard applicable to the first five miles of the EPZ requires an alerting rate of " higher than 95%." LBP-86-11, supra, 23 N.R.C. at 372, 396-97. In effect, the Licensing Board ruled that, as a matter of law, the tone alert radio system being in-stalled within the first five miles of the EPZ was a necessary supplement to the fixed siren system, essential to a demonstra-tion of compliance with the Commission's regulations.

As noted above, Applicants continue to maintain that siren systems designed to provide a minimum of 60/70 dB (depending on population density) comply with the Commission's public notifi-cation regulations. But the point has been mooted in this case by the installation of a tone alert radio system within the 1

first five miles of the EPZ, and by the Licensing Board's deci-sion in Applicants' favor. In addition, the Commission itself l

has recently indicated that it will take up the generic impli-cations of the " nighttime notification" issue. See Memorandum,

to V. Stello from S. Chilk, re

Nighttime Emergency Notifica-tion (February 4, 1986). In light of the pendency of Commis-i sion review, Applicants -- like the NRC Staff / FEMA -- have de-

cided not to burden the Appeal Board with consideration of the I

isaws. See NRC Staff / FEMA Motion For Leave To Withdraw Notice of Appeal, May 21, 1986. None of Mr. Eddleman's unusually dis-crete exceptions to this part of the Final Decision requires the Appeal Board to reach the Licensing Board's interpretation of the Commission's regulations and guidance on public notifi-cation. However, should the Appeal Board elect to construe those legal requirements, Applicants respectfully urge the Ap-peal Board to request supplemental briefs from all interested parties.

In the instant appeal, Mr. Eddleman advances seven basic complaints about the decision of the Licensing Board below with respect to Eddleman 57-C-3:

1 (1) That the Licensing Board erred in considering informal notification and mobile alerting as elements of the alert and

notification system to meet the 15-minute public notification i requirements; I

(2) That the Licensing Board " erred in not considering siren failure rates";

(3) That the Licensing Board erred "in not waiting for the official test results before issuing its decision";

(4) That the Licensing Board's conclusions in its Final Decision conflict with the views expressed in its letters to the Commission concerning nighttime notification; (5) That the Licensing Board " erred in not taking seri-ously the many past failures of tone alert radios in tests";

(6) That the Licensing Board erred "in accepting witness Keast as credible"; and 1

i (7) That the Licensing Board " erred in its cavalier treat-i l

ment of Intervenors' proposed findings" when it found that they I lacked analysis of the record.

As discussed infra, a review of the facts and the law dem-onstrates that each of the bases for Mr. Eddleman's appeal has no merit. The Licensing Board correctly held that the public alert and notification system for the Harris EPZ meets the Com-

, mission's regulations, even in a summer nighttime scenario.

Accordingly, the Licensing Board's decision should be affirmed.

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B. Informal Notification and Mobile Alerting Noting that NUREG-0654 does not discuss informal notifica- f tion, Mr. Eddleman first asserts that the Licensing Board erred in considering informal notification as a component of the pub-lic alert and notification system for the Harris plume exposure pathway Emergency Planning Zone. Intervenors' Brief at 6-7.

But Mr. Eddleman's argument has no basis in law or logic.

Two of the nation's leading disaster sociologists testified about informal notification at the hearings below, on '

behalf of Applicants and the NRC Staff / FEMA. According to the testimony of these two eminent experts, public response to emergency information and warnings of disasters has been a topic of investigation by social scientists for nearly three decades. Many studies have been conducted on the subject in a variety of emergencies stemming from geological, climatological, and technological phenomena, and are documented in a vast body of emergency literature. This research record provides evidence about a wide range of emergency warn-ing/public response phenomena, including public notification and communication between members of the public in an area at risk. Historical experience in hundreds of emergencies demon-strates that, once alerted to impending danger, people will seek to contact others, spreading the warning. Keast et al. at 28-43; Nehnevajsa at 5-11, 16-24. Mr. Eddleman points to no evidence undermining the experts' testimony concerning the l

4 empirically well-established informal notification processes which occur naturally in emergencies. Thus, it appears that Mr. Eddleman does not dispute the occurrence of informal noti-fication; rather, he argues only that the phenomenon cannot be considered in determining compliance with the Commission's reg-ulations on public notification.

However, there is nothing whatsoever in the Commission's regulations to suggest that the means of alerting is limited to mechanical devices, or that informal notification may not be considered in evaluating the effectiveness of mechanical sys-tems. See 10 C.F.R. 5 50.47(b)(5); 10 C.F.R. Part 50, Appendix E, 5 IV.D.3. Moreover, while it is true that informal notifi-cation is not explicitly discussed in NURG-0654 or FEMA-43, FEMA implicitly recognizes informal notification processes in its implementation of those guidance documents. Thus, for ex-ample, in evaluating siren test telephone survey results, FEMA considers a 70% positive response to be acceptable, based on research indicating that direct notification of that magnitude in a real emergency would result in informal notification of the remainder of the population. Tr. 9940-41 (Carter); Tr.

9594 (Mileti). Further, the existence and efficacy of-informal notification processes are recognized in Commission case law.

See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-84-37, 20 N.R.C. 933, 973 (1984), aff'd, ALAB-813, 22 N.R.C. 59 (1985); Southern California Edison Co. (San Onofre

Nuclear Generating Station, Units 2 and 3), LBP-82-46, 15 N.R.C. 1531, 1534-35 (1982). Accordingly, the Licensing Board properly concluded -- on the basis of historical experience in actual emergencies, as well as Commission precedent -- that in-formal notification can be relied upon in emergency planning as a component of public notification in the event of an actual emergency.40/

Mr. Eddleman criticizes the informal notification analyses as assertedly based ~on "the unlikely assumption that all calls will go to alert people within the EPZ (anId not people out-side)." Intervenors' Brief at 7 (emphasis in the original).

40/ The Licensing Board's finding that 50% of the population would engage in informal notification is actually an extremely conservative application of the evidence of record. LBP-86-11, supra, 23 N.R.C. at 389. While the expert presented by the NRC Staff / FEMA testified that 50% of alerted household would engage in informal notification, he also testified that many of those would make multiple contacts. Id.; Nehnevajsa at 16-21, 23, 27.

The Licensing Board's analysis ignores such multiple contacts.

Similarly, the NRC Staff / FEMA expert's testimony did not reflect the planned addition to EBS announcements of a reminder to spread the warning to friends and neighbors, which would facilitate in-formal notification. The disaster sociologist presented by Applicants testified that, with the addition to the EBS announce-ments, at least 80% of those formally notified would engage in informal notification processes. LBP-86-11, supra, 23 N.R.C. at 388; Keast et al. at 35-36, 39-40. The Licensing Board's analy-sis was conservative in other ways. For example, to account for factors such as habituation, the experts presented by Applicants and the NRC Staff / FEMA endorsed the use of the Kra11mann awak-ening data for the period of deepest sleep. Kryter-II at 13-15; Tr. 10,550-53, 10,664-65 (Kryter); Tr. 10,506, 10,509, 10,554-55 (Keast). Nevertheless, the Licensing Board discounted that data by 5%, to account for habituation. LBP-86-11, supra, 23 N.R.C.

at 383. This reduction renders the Licensing Board's awakening analysis extremely conservative.

But Mr. Eddleman does not point to any indicetion that the analyses were based on such an assumption. Because the issue presented for hearing was notification within the EPZ, the testimony on informal notification was necessarily limited to those contacts with households wtthin the EPZ. See, e.g., Tr.

9377 (Mileti) (noting the percentage of population in the EPZ alerted via informal notification). If Mr. Eddleman desired more explicit assurance that the analyses recognized (and ex-cluded) any contacts with persons outside the EPZ, he was obli-gated to pursue the point on cross-examination. Having failed to do so, Mr. Eddleman cannot now be heard to complain that the record on this point is not as clear as perhaps he would like.

Finally, Mr. Eddleman argues that the Licensing Board should not have considered informal notification because of the alleged potential for " overload" of the telephone network. In-tervenors' Brief at 7. However, Mr. Eddleman cites no record evidence in supporc of his assertion of error; nor can he.

There is nothing in the record to suggest that the phone system would not support informal notification of the expected magni-tude. The official representative of the State Division of Emergency Management did not anticipate problems with the use of the phone system for informal notification. Tr. 9591-92, 9601-02 (Joyner). Further, it is reasonable to expect that --

particularly relative to daytime -- greater phone system capac-ity would be available at night (the notification scenario at

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i issue in Eddleman 57-C-3). Tr. 9632 (Mileti). Nor would all ,

informal notification take place over the phone. For es: ample, '

it can be expected that people would go personally to notify nearby neighbors. Nehnevajsa at 7; Tr. 9539, 9590-91 (Mileti).

Accordingly, there is no merit to Mr. Eddleman's claim that the Licensing Board erred in its consideration of informal notifi-cation.

l Mr. Eddleman also challenges the Licensing Board's consi-i I

deration of mobile alerting as an element of the public alert and notification system for the Harris EPZ. Intervenors' Brief at 6. While the thrust of his claim is not entirely clear, Mr.

Eddleman seems to be arguing that -- since mobile alerting is relied upon "to assure 100% coverage within 45 minutes of the population who may have not received the initial notification" within the entire plume EPZ (NUREG-OG54, Appendix 3, $ B.2(c))

-- mobile alerting cannot be considered in determining the ca-pability to provide notification throughout the EPZ in 15 minutes, assuring " coverage of essentially 100% of the popule-tion within 5 miles of the site" (NUREG-0654, Appendix 3, 5 B.2(a)-(b)).41/ But in finding that 98.5% of the population 41/ Mr. Eddleman also seems to be arguing that mobile alerting i

cannot be used to fulfill both the requirement for an " alert sig-4 nal" as well as the requirement for an " instructional message."

Intervenors' Brief at 6. However, Mr. Eddleman provides no cita-tions in support of this novel proposition. Moreover, the con-  :

tention here at issue is limited to provision of an " alert sig-  !

nal" co the public. But, in any event, there is no need to rely (Continued Next Page) l

within the first 5 miles of the EPZ and 91% of the population within the 5 to 10-mile area of the EPZ would be notified with-in 15 minutes, the Licensing Board relied only on fixed sirens ,

and informal alerting (as well as tone alert radios within the first 5 miles of the EPZ). LBP-86-11, supra, 23 N.R.C. at 396-97. Thus, the short answer to Mr. Eddleman's claim is that the Licensing Board did not rely on mobile alerting to find compliance with the 15-minute. notification requirement. More-over, Mr. Eddleman fails to cite any law which would support his legal argument on the construction of NUREG-0654, Appendix

3. For these reasons, Mr. Eddleman's claim of error must be rejected.

C. Consideration of Siren Failure Rates Mr. Eddleman argues that the Licensing Board erred "in not considering siren failure rates." Intervenors' Brief at 7.

Asserting that "the Board was obligated to allow inquiry," Mr.

Eddleman implies that the Board precluded his exploration of the subject. However, Mr. Eddleman has not identified even a single question on siren failure which was posed but was disal-lowed by the Licensing Board. And Applicants' scrutiny of the (Continued) ,

on mobile alerting to supply an " instructional message" to the I public. Instructions to the public are provided via Emergency Broadcast System announcements on TV and radio. See generally Keast et al. at 38, 41 (referring to use of EBS in emergenciec.)

record reves".s no attempts by Mr. Eddleman to adduce evidence on rates of siren failure.

The Licensing Board did exclude certain testimony, offered by Mr. Eddleman at the reopened hearings, which related to loss of AC power to siren systems. See Eddleman Ex. 75 at 4-5 (Q &

A 10), 11 (Q & A 16), 15 (Q & A 22); Tr. 10,689-91, 10,701, 10,703-04. A licensing board's judgment with regard to what is or is not in controversy in a proceeding which it is conducting is entitled to great respect. Northern States Power Co. (Prai-rie Island Nuclear Generating Plant, Units 1 and 2), ALAB-419, 6 N.R.C. 3, 6 (1977). And Mr. Eddleman concedes -- as he must

-- that siren failure (for any reason) is beyond the scope of Eddleman 57-C-3. Certainly it was beyond the narrow scope of the reopened hearing, which was limited to consideration of tone alert radios and the ability of sirens to awaken people.

Tr. 10,437; Memorandum and Order (Limited Reopening of the Record on Eddleman Contention 57-C-3), January 16, 1986. Thus, the Licensing Board properly excluded the proffered testimony.

Mr. Eddleman asserts that the Licensing Board " acted arbi-trarily and capriciously" in adopting siren coverage analyses which assume operation of 100% of the sirens. But this is standard practice in determining the acoustical coverage of a siren system design. Tr. 9700 (Carter). Further, there is no evidentiary basis for the implication that siren failure will be a concern once the system is fully installed and

operational.42/ See generally, Tr. 9446. In any event, many residences within the EPZ are covered by multiple sirens.

Applicants' Ex. 46; Tr. 9618-19 (Keast). Moreover, the mobile  ;

alerting system in place within the EPZ covers all residences i

in the EPZ. Keast et al. at 26. Thus, even assuming a siren were to fail in an emergency (and entirely discounting informal  ;

notification -- as well as the tone alert radios within the first five miles), the population residing near that siren would not go without notification. Accordingly, Mr. Eddleman's assertion of error lacks merit.

D. Official Alert and Notification System Test i

Mr. Eddleman asserts that the Licensing Board erred be-  !

cause it did not hold its decision in abeyance pending "the of-ficial test results." According to Mr. Eddleman, "the tests t

would soon be available and should have been used to guide the Board's decision." Intervenors' Brief at 7-8. Mr. Eddleman's criticisms are baseless.

Though the reference is not completely clear, Mr. Eddleman appears to be referring to the alert and notification system test / telephone survey which is conducted by FEMA. Tr. 10,777 42/ Mr. Eddleman alludes to the apparent failure of a siren dur-ing the May 1985 exercise. But he fails to note that siren sys- i tem installation was still underway, that pre-operational testing  ;

of the siren sytem had not yet been completed at that time, and that the system was still in a " shakedown" period. See generally, Tr. 9443-44.

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(Goodwin); Tr. 9641-42 (Keast, Joyner, Mileti). But there is no legal requirement that such a test be completed prior to the issuance of an operating license.43/ And licensing boards in other cases have ruled on the adequacy of alert and notifica-tion systems before those systems have even been installed. As i

the Appeal Board has noted:

[I]nstallation and testing of the siren system is precisely the type of matter for which the Commission believes pre-dictive findings can suffice at this stage.

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1105 (1983). Thus, the Li-censing Board did not err in the timing of the issuance of its decision.

E. Licensing Board Letters to Commission Mr. Eddleman asserts that the Licensing 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" concerning the adequacy of the regulatory standards for public notification. Intervenors' Brief at 8. However, Mr. Eddleman has completely failed to elab-orate on any contradictions he may perceive.

43/ Contrary to Mr. Eddleman's assertions, the test of the Harris alert and notification system is not scheduled until next year.

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In any event, the concerns expressed in the Licensing-Board's letters have no application to the Harris EPZ. As the May 16, 1986 letter indicates, the Licensing Board's " generic" concerns relate only to " nighttime alerting at reactors which rely entirely on sirens and so-called ' informal notification'

. . . ". (Emphasis supplied.) The installation of tone alert ra-dios in all residences within the first five miles of the EPZ re-1 solved any such concerns with respect to the Harris plant. Thus Mr. Eddleman's argument is baseless.

F. Consideration of Tone Alert Radio Failures Noting that the results of the third annual test of tone alert radios in the Georgia Power-Hatch EPZ were worse than those of the first two tests, Mr. Eddleman asserts that the Licensing Board " erred in not taking seriously the many past failures of tone alert radios in tests." Intervenors' Brief at 8. But Mr.

Eddleman has distorted the evidence. Contrary to the implication which Mr. Eddleman attempts to draw, the Georgia Power test re-sults do not suggest a trend of more radios becoming inoperable over time. Indeed, the results of the second test were best.

See Table, ff. Tr. 10,758; Tr. 10,767, 10,769 (Keast).

Moreover, in eval.uating the effectiveness of the Harris alert and notification system, the Licensing Board assumed that 13.6% of the households within five miles of the plant uculd not (for whatever reason) have an operable tone alert radio in use.

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LBP-86-11, supra, 23 N.R.C. at 395. Thus, the Licensing Board's analysis assumed a " failure rate" comparable to the 13% rate ob-served in the third (and worst) tone alert radio test in the Hatch EPZ. See Table, ff. Tr. 10,758.

Mr. Eddleman also asserts that the Licensing Board " erred in neglecting the indetectability of failures in tone alert radios."

Intervenors' Brief at 8. Mr. Eddleman's argument has no basis in fact. The Licensing Board accurately described the various fea-tures which enable any household to assure the operability of its tone alert radio:

First, there is a red light denoting the radio is operating properly and awaiting the alert tone. Also, Applicants' wit-ness noted that existence of the self-test feature. A resident can also depress the weather bar to obtain a broadcast. In addition, NWS has 20 to 25 alerts a year during which it broad-casts an alert tone. Finally, NWS sends out a test tone weekly between the hours of 11:00 a.m. and noon.44/

LBP-86-11, supra, 23 N.R.C. at 394 (citations omitted). Mr.

Eddleman has cited no evidence to dispute the adequacy of these test features. Accordingly, his assertions of error are lacking in merit.

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44/ Thus, there is no truth to Mr. Eddleman's claim that "[t]he annual test is the only test program for the receivera." Inter-venors' Brief at 7-8.

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e G. Credibility of Mr. Keast Mr. Eddleman also argues that the Licensing Board erred "in accepting witness Keast as credible." Intervenors' Brief at 8.

In support of this point, Mr. Eddleman simply refers to paragraph 9 of " Wells Eddleman's Proposed Findings of Fact and Conclusions of Law on Contention 57-C-3 (Alert / Notification) (Reopened),"

March 19, 1986.

In his proposed findings, Mr. Eddleman accused Mr. Keast of refusing to acknowledge his prior testimony on cross-examination.

But a review of the ages cited by Mr. Eddleman indicates that the cross-examiner misquoted Mr. Keast's prior testimony.

Compare Tr. 10,507 at lines 12-17 (Keast) with Tr. 10,579 at lines 12-17 (Gamin). Thus, as an attentive witness concerned with the accuracy of the record, Mr. Keast quite properly de-clined to accept the erroneous quotation of his prior testimony.

Mr. Eddleman's claim that Mr. Keast " changed his percentage awake to 10 from 3" is similarly lacking in basis. All of Mr.

Keast's calculations involving people already awake at night were based on Arbitron studies indicating that approximately 10 per-cent of the population is awake at any point during the night (and thus would be alerted).45/ Tr. 10,748 (Keast). Therefore, any awakening mechanism can (at most) awaken the remaining 90% of 45/ The Final Decision misstates Mr. Keast's testimony on this point, although the error is not material to the result. See LBP-86-11, supra, 23 N.R.C. at 387-88.

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the population. Assuming, for example, that the mechanism has a '

92% probability of awakening, then those awakened would be 0.92 x 0.9, or a fraction of 0.83 of the people. The total alerted would thus be the sum of the 10% previously awake plus the 83%

awakened, or 93%. In this example, the effect of having 10% of the people already awake increases the totcl alerted by 1% --

from 92% to 93%.

As another example, if the awakening mechanism has an awak-ening probability of 70%, then 0.7 x. 0.9, or a fraction of 0.63 of the population, would be awakened. Adding the 10% already awake yields a total of 73% alerted. In this example, the effect of having 10% of the people already awake increases the alerted i population by 3%. Mr. Keast's testimony on this subject was thus consistent throughout the proceeding.

In short, Mr. Eddleman's attempts to impugn Mr. Keast's credibility fall far short of the mark.46/ Indeed, to the 46/ Mr. Eddleman also casts his limitud comments on the use of

the Krallmann data as an attack on Mr. Keast's " credibility."

Mr. Eddleman argued that Mr. Keast's highest alerting percentages j (based on the Krallman data) are not credible, citing Dr. Kryter i for the proposition that the Krallmann study used an outdoor re-I cording of a siren. But Mr. Eddleman's references to the record did not support that proposition. Both Mr. Keast and Dr. Kryter indicated that the Krallmann report provides no certain answer as to where the siren recording was made. Tr. 10,538-48 (Kryter, Keast). While Dr. Kryter initially opined that the recording was likely made outdoors (Tr. 10,539), he reconsidered that opinion'

, upon reflection, concluding that the recording was probably made 1

indoors. Tr. 10,546 (Kryter). And, contrary to Mr. Eddleman's representation, Dr. Kryter did not later reverse that determina-i tion, though he corrected a mathematical error in his oral testi-(Continued Next Page)

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contrary, the Licensing Board commended Mr. Keast on several oc-casions for his remarkable patience and his accuracy as a wit-ness. See e.g., Tr. 9646 (Carpenter); Tr. 9672 (Kelley). A li-censing board's judgment of the credibility of a witness is entitled to "particularly great deference." Duke Power Co. (Ca-tawba Nuclear Station, Units 1 and 2), ALAB-355, 4 N.R.C. 397, 404 (1976). Accordingly, Mr. Eddleman's claim of Licensing Board error must be rejected.

3 (Continued) mony on the higher frequency components of siren signals and the attenuation from outdoors to indoors. See Tr. 10,634-35 (Kryter). Certainly Dr. Kryter did not recant his strong en-dorsement of the use of the Krallmann data. See generally Kryter II at 3, 16; Tr. 10,504-05, 10,533-34, 10,552-54 (Kryter).

In any event, whether the siren in the Krallmann study was recorded indoors or outdoors, the difference is de minimus. Both Dr. Kryter and Mr. Keast agree that the fundamental tone of the siren sound at approximately 500Hz is most significant for de-termining arousability, regardless of whether the FS-1000 or the Krallmann siren spectrum is used. Tr. 10,547, 10,548 (Keast);

Tr. 10,544, 10,547 (Kryter). Even if Krallman had used an out-door recording of siren sounds, it would at most have contributed an additional 1 to 2 dB to the arousability attributable to the fundamental tone. See, e.g., Tr. 10,547 (Kryter). Hence, Mr.

Eddleman's protracted cross-examination of Dr. Kryter on the am-plitudes of higher frequency components or harmonics relative to the fundamental tone did not undermine Mr. Keast's calculations.

Tr. 10,547 (Keast).

4

H. Mr. Eddleman's Proposed Findings Finally, Mr. Eddleman asserts that the Licensing Board

" erred in its cavalier treatment of Intervenor's proposed find-ings stating that there is a lack of analysis of the record . . . to document noncompliance." According to Mr.

Eddleman, the Licensing Board's observations are "both untrue and categorically unfair." Intervenors' Brief at 8.

Mr. Eddleman has completely failed to elaborate on this claim of error. As the Appeal Board has repeatedly emphasized:

[B]riefs are necessary to ' flesh out' the bare bones of [an appeal], not only to give [the Appeal Board] sufficient information to evaluate the basis of ob-jections to the decision below, but also to provide an opponent with a fair op-portunity to ccme to grips with the ap-pellant's arguments and attempt to rebut them . . . For these reasons, [the Ap-peal Board] generally follows the course charted by Federal courts and disregards unbriefed issues as waived.

Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1),

ALAB-719, 17 N.R.C. 387, 395 (1983). Accord, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),

ALAB-802, 21 N.R.C. 490, 496 n. 30 (1985) (in absence of explana-tion why a claim of error is correct, exception is treated as waived); Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2),

ALAB-469, 7 N.R.C. 470, 471 (1978) (party wishing to challenge licensing board ruling must, inter alia, explain why ruling is erroneous). Under the circumstances presented here, Mr.

Eddleman's claim of error must be deemed vaived.

I In any event, the Licensing Board's observations were right on the mark. While it is true (as Mr. Eddleman emphasizes) that i

Mr. Eddleman's proposed findings included some citations to the .

record, the mere recitation of testimony does not constitute the type of studied analysis and synthesis of the record which is ex-1

pected in proposed findings. Mr. Eddleman's exception therefore l must be rejected.

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I. Conclusion l,

Intervenors' Brief casts no doubt on the result reached by the Licensing Board on Eddleman 57-C-3. While Applicants may a

disagree with the Licensing Board's interpretation of the appli-I cable legal standards, the evidentiary record demonstrates con-clusively that -- measured by any standard -- the alert and noti-fication system for the Harris EPZ will provide effective warning to the public in the event of a Harris emergency, even in a I nighttime scenario. Accordingly, the Licensing Board's decision l should be affirmed.

j III. The Final Licensing Board Decision Was

! Properly Issued i

Intervenors apparently argue that the Final Licensing Board Decision should not have been issued because it did not address all of the issues raised by Intervenors. Intervenors' Brief at

9. Nothing in Intervenors' Brief casts any doubt on the cor-1 rectness of the Licensing Board's observation that "[i]n issuing 1

this Decision, the Board has now made findings of fact and con-clusions of law on all matters put into controversy by the par-ties to the proceeding." LBP-86-ll, supra, 23 N.R.C. at 408 (footnote omitued).

The pendency of an OI investigation into two claims of employee harassment was no bar to issuance of the decision. See Intervenors' Brief at 9. The Licensing Board correctly stated at the time that "there is no contested issue before the Board, only the possibility of one." LBP-86-ll, supra, 23 N.R.C. at 408 n.50. As the Commission has stated, "the mere pendency of OI in-vestigations . . . does not raise a serious safety matter."

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Louisiana Power & Light Co. (Waterford steam Electric Station, Unit 3), CLI-86-1, 23 N.R.C. 1, 7 (1986). In any event, the mat-ter is now closed, OI has found that the two former employees were not victims of harassment, and no proposed contentions were filed.47/

Similarly, the Licensing Board did not err in issuing its final decision simply because Intervenors mailed yet another late ,

proposed contention (WB-4) at the last minute. Intervenors' Brief at 9. In any case, the Licensing Board since has rejet;ad the proposed contention finding, inter alia, that it could have 1

_47/ See Licensing Board unpublished Memorandum and Order (Re-jecting Late Proposed Contention Concerning Alleged Falsification of Radiation Exposure Records), at 11 (June 13, 1986).

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been filed in the Fall of 1985, and that it does not raise a sig-nificant safety concern.48/

Curiously, Intervenors next argue that the Final Licensing Board Decision should not have issued because appeals from earli-er Licensing Board partial initial decisions are pending. Inter-venors' Brief at 9. Clearly, the mere fact that appeals are pending from previous decisions is not a basis for withholding the Licensing Board's decision authorizing license issuance. The i Commission's regulations provide for license issuance based upon Licensing Board authorization, while appeals proceed, unless a

, stay is granted or the Commission withholds effectiveness, based i'

upon the criteria set forth in 10 C.F.R. $ 2.788(e) or 1 6 2.764(f)(2)(i), respectively.

48/ I_d . at 4, 9.

CONCLUSION For all of the foregoing reasons, the Final Licensing Board Decision should be affirmed.  ;

I Respectfully submitted, [

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Thomas A. Baxter, P.C.

Delissa A. Ridgway

• SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 ,

(202) 822-1090 i

Richard E. Jones Dale E. Hollar i CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 -

Raleigh, North Carolina 27602  :

(919) 836-8161 '

Counsel for Applicants ,

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Dated: July 9, 1986 i i

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~ __ . , .. _ . _ _ . . ,

s.

July 9, 1986 00gKETED pC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE 0F EEU:.IANY 00CKETING & SfMVICf.

BRANCH BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

i CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Brief in Reply to Intervenors' Appeal From the Final Licensing Board Decision" were served this 9th day of July, 1986, by deposit in the U.S.

mail, first class, postage prepaid, to the parties on the attached Service List.

-. .: a Thomas A. Baxter, P.C.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL and NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

SERVICE LIST Thomas S. Moore, Esquire Charles A. Barth, Esquire Chairman Janice E. Moore, Esquire Atomic Safety and Licensing Office of Executive Legal Director Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Communission Washington, D.C. 20555 ,

Washington, D.C. 20555 Docketing and Service Section Dr. Reginald L. Gotchy Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Daniel F. Road, President CHANGE Mr. Howard A. Wilber P.O. Box 2151 Atomic Safety and Licensing Raleigh, North Carolina 27602 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John D. Runkle, Esquire Conservation Council cf James L. Kelley, Esquire t lina afety and Licensing Board Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 M. Travis Payne, Esquire Edelstein and Payne Mr. Glenn O. Bright P.O. Box 12607 Atomic Safety and Licensing Board Raleigh, North Carolina 27605 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Richard D. Wilson 729 Hunter Street Dr. James H. Carpenter Apex, North Carolina 27502 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Bradley W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 H. A. Cole, Jr., Esquire Special Deputy Attorney General 200 New Bern Avenue Raleigh, North Carolina 27601 Joseph Flynn, Esquire Federal Emergency Management Agency 500 C Street, S.W.

Washington, D.C. 20740 ,

Steven Rochlis, Esquire Regional Counsel Federal Emergency Management Agency 1371 Peachtree Street, N.E.

Atlanta, Georgia 30309 .,

Richard E. Jones, Esquire Carolina Power & Light Company P.O. Box 1551 Raleigh, North Carolina 27602 Dr. Linda W. Little Governor's Waste Management Board 513 Albemarle Building 325 North Salisbury Street Raleigh, North Carolina 27611 Mr. Wells Eddleman 812 Yancey Street Durham, North Carolina 27701 l

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