ML20212E769
| ML20212E769 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 12/31/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CONSERVATION COUNCIL OF NORTH CAROLINA, EDDLEMAN, W. |
| References | |
| CON-#187-2077 ALAB-856, OL, NUDOCS 8701050445 | |
| Download: ML20212E769 (33) | |
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2077 DOLMETED UNITED STATES OF AMERICA U$NPC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL B R
' Administrative Judges: CFFICE U .2 4 00CXL f 9C - Mri.
Thomas S. Moore, Chairman December 31['1986 Howard A. Wilber (ALAB-856)
) bERVED jAN 021987 In the Matter of )
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CAROLINA POWER AND LIGHT COMPANY ) Docket No. 50-400 OL AND NORTH CAROLINA EASTERN )
MUNICIPAL POWER AGENCY )
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(Shearon Harris Nuclear Power )
Plant) )
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John Runkle, Chapel Hill, North Carolina (with whom Wells Eddleman, Durham, North Carolina, was on the brief) for the intervenors Conservation
, Council of North Carolina and Wells Eddleman.
Thomas A. Baxter, Washington, D.C. (with whom John H.
O'Neill, Jr., Pamela H. Anderson, Michael A. Swiger, Washington, D.C., and Richard E. Jones, Samantha _
Francis Flynn and Dale E. Hollar, Raleigh, North Carolina, were on the brief) for the. applicants Carolina Power and Light Company, et al.
Charles A. Barth (with whom Janice E. Moore was on the brief) for the Nuclear Regulatory Commission staff.
DECISION We have before us the consolidated appeals of the intervenors, Conservation Council of North Carolina (CCNC)
, and Wells Eddleman, from the Licensing Board's second partial initial decision resolving in the applicants' favor Dr. Reginald L. Gotchy resigned from the Appeal Panel October 1, 1986, and he is, therefore, no longer a member of the Board.
8701050445 861231 gDR ADOCK 05000400 PDR
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a number of contested safety issues in the Shearon Harris operating license proceeding.I On appeal, the intervenors complain that in earlier procedural rulings the Licensing Board erred in rejecting a host of their proffered safety contentions. They also assert that the Board erred in granting summary disposition against them on an additional number of their contentions. Finally, the intervenors challenge the Board's findings and conclusions on several issues that went to hearing. As explained below, we affirm the results reached by the Licensing Board in its second partial initial decision.
I.
In their brief, the intervenors claim that the Licensing Board wrongly excluded many of their contentions as well as 'several~ contentions-introduced by other -- .- -
intervenors who are not parties to this appeal. The brief does not state the grounds for the Licensing Board's rejection of the contentions or why the Board's rulings are erroneous. Indeed, the intervenors do not even reference all the Board's rulings rejecting these contentions.
See LBP-85-28, 22 NRC 232 (1985).
2 It appears that the intervenors seek to challenge the Licensing Board rulings contained in LBP-82-119A, 16 NRC 2069, 2083-2108 (1982), and its Memorandum and Order (October 6, 1983) at 2-10.
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3 Rather, the intervenors simply make declarations such as "the CHANGE contentions on failure modes and QA (14, 16, 23, 25, 26) not withdrawn are good contentions," or "[t]he Anticipated Transient Without Scram (ATWS) issue on Contention 115 is adequately specific, and the denial of hearing on unresolved safety issues (Contention 107) was not proper."3 Even putting aside the improper attempt of CCNC and Wells Eddleman to appeal the Licensing Board's rejection of contentions that they did not sponsor,4 the intervenors' bare pronouncements, without more, do not qualify as legitimate argument and adequate briefing under the Commission's Rules of Practice. The intervenors' failure to submit a brief containing sufficient information to allow us to make an intelligent disposition of the issues raised "is tantamount to their abandonment."6 .Accordingly, with the exception of those contentions noted below, we deem the intervenors' appeal of rejected contentions waived.
3 Intervenors' Brief (October 8, 1985) at 21-22.
See ALAB-843, 24 NRC , ___ (August 15, 1986) (slip opinion at 2 n.3); ALAB-837, 23 NRC 525, 542 n.58 (1986);
Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-631, 13 NRC 87, 89 (1981).
See 10 C.F.R. S 2.762 (d) (1) .
6 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 413, reconsideration denied, (Footnote Continued)
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Viewed most charitably, the intervenors make a minimally adequate argument with respect to the contentions listed in their brief as Eddleman 132A, 132B, .132C (1) and 132D, concerning the Shearon Harris control room. The intervenors claim that the Licensing Board rejected these contentions "on the grounds that the Staff is to review the matters in question."7 They then argue that-the "[u]se of pending Staff review as a means to avoid admitting contentions is not proper" and violates their right to a hearing.8 Had the Licensing Board rejected these contentions on the grounds averred in their brief, the intervenors' argument might have merit. But the Board did not reject the contentions for the reasons claimed by the intervenors and they have asserted no other grounds of error for the Board's exclusionlof them.
The circuitous procedural history of these Eddleman contentions perhaps helps to explain the intervenors' misunderstanding of the Licensing Board's action. As originally proffered by Mr. Eddleman, contention 132 alleged that the design of the Shearon Harris control room failed to (Footnote Continued)
ALAB-359, 4 NRC 619 (1976). See Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 956-57 (1982).
Intervenors' Brief at 23.
8 Id.
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5 ceet regulatory requirements because it lacked sufficient.
instrumentation to detect inadequate core cooling. It also alleged that the design of the control room had not been subjected to a human factors review.9 Mr. Eddleman then amended the contention to add specific information on reactor vessel level instrumentation.10 Although both the applicants and the NRC staff opposed the admission of contention 132 as originally proffered,II neither party objected to the admission of a narrowly drawn reformulation of the contention (suggested by the applicants) asserting only.that the applicants had failed to provide the design for a reactor water level indicator.12 Apparently believing that the applicants and the staff _had conceded the admissibility of Mr. Eddleman's original contention 132,-the Licensing Board admitted it.13 Upon the objection of the 1
I Supplement To Petition To Interfene by Wells Eddleman (May 14, 1982) at 239.
O Amendment To Petition To Intervene by Wells Eddleman (June 28, 1982) at 22-23.
II Applicants' Response To Suppl 4 ment To Petition To Intervene By Wells Eddleman (June 15,,1982) at 145-46; NRC Staff Response To Supplemental Statemeitts of Contention By Petitioners To Intervene (June 22, 198J) at 68.
12 Applicants' Response to Amendrehts (Second Set) To Contentions Of Petitioner Wells Eddlen'an (July 13, 1982) at 14; Tr. 448-50.
I LBP-82-119A, 16 NRC at 2109.
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applicants and the staff,14 the Licensing Board reconsidered its prior ruling, accepted that portion of the contention reformulated by the applicants, and deferred ruling on the portion of the original contention concerning human factors analysis.15 The Board also provided that Mr. Eddleman could file new or amended contentions on this subject after one of the applicants' consultants filed a then-anticipated control room design report.16 Prior to the Licensing Board's ruling, however, the intervenors had filed additional proposed contentions dealing with the applicants' control room. Those contentions included, inter alia, 132B dealing with the safety parameter display system, 132C concerning the qualifications of the control room design review team, and 132D regarding -the lack of a control room design review for Shearon Harris Unit 2.17 At the second prehearing 4
conference on February 24, 1983, the Licensing Board again deferred any considera. inn of Mr. Eddleman's pending control 14 See Applicants' Objections and Requests for Clarification Relating to the Board's Memorandum and Order (October 15, 1982) at 15-16; NRC Staff Response to 4
Memorandum and Order (October 25, 1982) at 1-2.
15 Memorandum and Order (January 11, 1983) at 6.
16
_I_d.
17 See Wells Eddleman's Motion Concerning DCRDR Information (January 8, 1983) at 4-7.
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7 room contentions. The Board ordered Mr. Eddleman to await the filing of the applicants' planned supplement to their control room design review report and then, on a schedule set by the Board, to revise, amend or renew his contentions on this subject.18 After another delay in the issuance of the applicants' supplement, the Board altered the contention filing schedule,19 and on July 2, 1983, Mr. Eddleman filed his revised, amended and renewed contentions dealing with applicants' control room.20 The Licensing Board then admitted a number of Mr. Eddleman's contentions but rejected those at issue here.21 Although Mr. Eddleman's revised filing contained a section entitled "Old Contentions," he did not reassert that part of his originally filed contention concerning human factors review or any other contention labeled 132A.22 EBy .-
not including such a contention in his July 2 filing, Mr.
Eddleman abandoned it and that contention was cmver presented to the Licensing Board for a ruling en its admissibility. Consequently, the intervenors' argument that i
Tr. 604-05.
19
! LBP-83-27A, 17 NRC 971, 985 (1983).
j 20 See Wells Eddleman's Response to 1983 Updated DCRDR Including Revised and New Contentions (July 2, 1983).
21 See Memorandum and Order (October 6, 1983).
See Wells Eddleman's Response to 1983 Updated DCRDR 1 Including Revised and New Contentions (July 2, 1983) at 5-8.
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8 the Board rejected the contention because the staff would review the assertions made in it is totally without merit and does not accurately represent the procedural history surrounding contention 132A.
Nor did the Licensing Board reject contention 132B for the reason claimed by the intervenors. That contention alleged that the applicants' control room design did not provide for a safety parameter display system as called for by applicable Commission policy statements. The Board rejected the contention because the materials available to Mr. Eddleman demonstrated that the allegation was factually 23 incorrect -- a reason not challenged by the intervenors on appeal.
Contention 132C (I) challenged the applicants control room design report on the ground that it failed to establish 23 Memorandum and Order (October 6, 1983) at 4.
Although no other issue regarding contention 132B is before us, any question regarding the correctness of the Licensing Board's stated reasons for rejecting the l contention is largely academic in light of subsequent events. After rejecting the contention, the Board ordered the applicants to provide Mr. Eddleman with a copy of the safety analysis for their proposed parameter display system and gave him a further opportunity to file contentions on the adequacy of the system. Mr. Eddleman filed such contentions (see Wells Eddleman's New Contentions re SPDS (January 3, 1984)) and the Board rejected them (Tr. 773),
although it once again gave him an additional opportunity to bolster his proffered contentions -- an opportunity he never pursued. Mr. Eddleman has not appealed, however, the j Board's rejection of any of these contentions.
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that the applicants' review team had appropriate interdisciplinary qualifications as called for by Commission policy. Here again, however, the Licensing Board did not reject the contention for the reasons assigned by the intervenors. Rather, the Board excluded contention 132C(I) for a lack of specificity because it failed to dispute the credentials of any members of the applicants' review team;24 and, on appeal, the intervenors have not questioned this basis for rejecting the contention.
Finally, contention 132D, which alleged that the applicants had failed to perform a control room design review for Unit 2, was withdrawn by Mr. Eddleman in his July 2, 1983 filing.25 Hence, it was not rejected by the Licensing Board for the reason asserted by the intervenors.
Although Mr. Eddleman' proffered a' revised contention that he denominated 132DII, the intervenors have not appealed its rejection.26 In any event, the applicants' cancellation of Unit 2 makes all questions concerning that unit moot.
Accordingly, the Licensing Board's rejection of Eddleman 24 Memorandum and Order (October 6, 1983) at 5.
See Wells Eddleman's Response to 1983 Updated DCRDR Including Revised and New Contentions (July 2, 1983) at 7.
26 See id.; Memorandum and Order (October 6, 1983) at 10.
s 10 contentions 132A, 132B and 132C (I) is affirmed.
II.
The intervenors next assert that-the Licensing Board erred in granting various of the applicants' motions for summary disposition by holding the intervenors to an unreasonable standard of proof. Once again, however, the intervenors arguments are merely a disjointed miscellany of charges.
In their brief, the intervenors first assert that by admitting their contentions, the Licensing Board " recognized that there are issues of fact inherent in the contention."27 They next state that, in order to prevail on motions for summary disposition, the applicants have the burden of establishing the absence of any genuine issues of material fact; but here, the Licensing Board " required an unreasonable burden of proof of Intervenors by ruling for the party who presented the most or weightiest evidence,"
instead of determining whether there were issues of fact or law to be heard.28 They then claim this " standard for review" applies to the Licensing Board's grant of summary 27 Intervenors' Brief at 24.
28 Id. at 25.
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l 11 disposition of Eddleman contentions 11, 29, 45, 64 (f) , 132 and 132 (C)II and joint contentions V and VI. This assertion is followed by six short paragraphs of one, two or three sentences containing various purported claims of error for the listed contentions.29 Nowhere in their brief do the intervenors explain, for example, what genuine issues of material fact the Licensing Board overlooked with respect to each of these contentions or how the Board placed the burden on the intervenors. The intervenors do not mention the detailed affidavits of experts filed by the applicants with their summary disposition motions or suggest how the applicants failed to meet their burden on each issue. Indeed, the intervenors do not even note the subject matter of the contentions at issue, much less reference the Licensing Board rulings they -
purport to appeal. Thus their brief does not comply with 29 The intervenors' assertions concerning Eddleman contention 11 are illustrative of their treatment of each of the other contentions. Their brief states, without more, that the main error may have been in not allowing it to be amended to include the neoprene that CP&L
[ Carolina Power & Light Company] principally uses as cable insulation. However, the evidence produced on summary disposition was insufficient to close off the issue, even though the intervenor did not directly respond beyond what was available on discovery and a request to look into the neoprene issue.
Id. at 26.
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12 the Commission's Rules of Practice requiring that the intervenors " clearly identify the errors of fact or law that are the subject of the appeal" and "the precise portion of the record relied upon in support of the assertion of error."30 The intervenors' arguments are so woefully deficient in setting forth information sufficient to allow us to understand their allegations of error that we deem their appeal of these issues abandoned.31 Even though the intervenors have not briefed adequately the issues they seek to raise, we nevertheless have reviewed the Licensing Board's rulings and find that the result reached by the Board with respect to each of these conten-tions is correct. No purpose would be served by freighting this opinion with a discussion of the individual conten-tions. It suffices t.o note that the applicants filed motions for summary disposition for each contention and that Mr. Eddleman filed no response with respect to four of the contentions and that his limited responses to the other contentions were totally insufficient to raise any legal issue or to establish any factual one.32 The applicants' 30 10 C.F.R. S 2.762 (d) (1) .
31 See Susquehanna, 16 NRC at 956-57; Catawba, 4 NRC at 413.
32 See 10 C.F.R. $$ 2. 749 (a) , (b) . Contrary to the (Footnote Continued)
i 0 13 motion papers for each contention clearly established that there were no genuine issues of material fact and that the applicants had met their burden on each issue, thereby entitling them to summary disposition. The Licensing Board properly granted the applicants' motions with respect to Eddleman contentions 11, 29, 45, 64 (f) , 132 and 132 (C)II.33 Contrary to the intervenors' assertion, however, the Board did not grant summary disposition on joint contentions V and VI. Rather, it dismissed the contentions -- albeit after the applicants filed their motion for summary disposition and the intervenors failed to file a response -- for the intervenors' failure to respond to the applicants' discovery requests.34 That action was well within the Licensing Board's authority and was not an abuse of discretion in the circumstances.35' Accordingly, the Licensing Board's (Footnote Continued) intervenors' suggestion before us (see supra p. 10), the mere admission of a contention does not establish genuine issues of material fact within the meaning of the summary disposition section of the Commission's Rules of Practice.
Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 425 n.4 (1973).
33 See, respectively, Tr. 2167 (with rationale set out in LBP-85-28, 22 NRC at 297) Memorandum and Order (November 30, 1983) at 3-5; Memorandum and Order (July 24,1984) at 3-4; Memorandum and Order (November 30, 1983) at 5-7; Memorandum and Order (April 13, 1984) at 20-22; Tr. 2167 (with rationale set out in LDP-85-28, 22 NRC at 295-96).
34 Order (May 10, 1984) at 6-7.
35 See 10 C.F.R. 5 2.707; Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
s 14 rulings with respect to these contentions are affirmed.
III.
A. Of the issues that went to hearing in the proceeding, the intervenors first challenge the Licensing Board's findings and conclusions on joint contention 1.
That contention, the result of a stipulation by all parties, stated:
The Applicants have not demonstrated the adequacy of their managing, engineering, operating and maintenance personnel to safely operate, maintain and manage the Shearon Harris Nuclear Power Plant as evidenced by their record of safety and performance at their other nuclear power facilities. A pattern of management inadequacies and unqualified and/or inadequate staff is likely to be reproduced at Shearon Harris Nuclear Powe56 Plant and result in health and safety problems.
The Licensing Board found that the applicants, supported by the NRC staf f, ef fectively refuted the contention. The Board basically determined that, although CP&L's management of its Brunswick nuclear facility had shown some significant deficiencies prior to 1982, the company instituted corrective actions and, with the strict oversight of the NRC, improved greatly. It then concluded that CP&L was technically qualified and that it possessed the requisite management ability and commitment to safety to LDP-85-28, 22 NRC at 236.
37 Id. at 245-53.
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operate Shearon Harris. In reaching this conclusion, the Board specifically noted that "[t]he Joint Intervenors' rather miscellaneous collection of evidence unfavorable to CP&L largely derives from events occurring in 1982 and earlier. This evidence has been superseded (substantially, if not entirely) by a sustained period of improved CP&L management performance since that time."39 Before us, the intervenors merely list this same " miscellaneous collection of evidence" referred to by the Licensing Board and charge that "a review of the entire record" demonstrates the applicants' lack of management competence.40 As we have pointed out to the intervenors previously, we will only overturn a lower board's factual findings when "we are convinced that the record compels a different result."41 But our review of the extensive record on this issue convinces us that the Licensing Board was correct.
The Licensing Board's role as fact finder is to weigh and consider all the record evidence. Here, the Board did precisely that and the record amply supports its findings.
38 Id. at 257.
39
_I_d.
40 Intervenors' Brief at 16.
4I Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975). See j ALAB-837, 23 NRC at 531.
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t 16 It fully explained its findings and responded to the intervenors' arguments raised in their proposed findings.42 Although the intervenors disagree with the Board's results, they have failed to present us with anything demonstrating the Board's judgment was wrong. Indeed, the intervenors' brief does not even mention the Board's finding, much less explain how those findings are erroneous. Accordingly, we affirm the Board's findings and conclusion on joint contention 1.
, In addition to challenging the Licensing Board's 1
findings on joint contention 1, the intervenors also raise a related procedural issue. They aver that the Board erred in denying their request for a subpoena directed to then NRC Region II Administrator, James P. O'Reilly, to compel his testimony on this contention.
In this regard, the Commission's Rules of Practice provide that, in a proceeding like this one where the NRC staff is a party, the agency will make available one or more l
witnesses designated by the Executive Director for Operations to testify on the issues involved. The Rules further dictate that the " attendance and testimony of . . .
named NRC personnel . . . may not be required by the
- presiding officer, by subpoena or otherwise . . . (except]
I LBP-85-28, 22 NRC at 237-56.
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17 upon a showing of exceptional circumstances."43 Here, the Executive Director for Operations did not designate Mr.
O'Reilly as a witness and, in denying the intervenors' subpoena request, the Licensing Board found, in effect, that Mr. O'Reilly's testimony would be duplicative and not add materially to the existing record. It concluded, therefore, that the intervenors failed to make the required showing.44 ,
Before us, the intervenors do not attack directly these .
Licensing Board determinations. Instead, they point out e that Mr. O'Reilly was the supervisor of another staff witness, Paul Bemis, upon whose testimony the Licensing Board heavily relied in making its findings on the .
management contention. They state that "[a] subpoena was l
requested for [Mr. O'Reilly] in order to delineate the 1 conflicts Mr. Bemis faced in overseeing the Applicants' i
management and his role in shaping the SALP reports."45 The intervenors then argue that "in all fairness [they] should .,
have been afforded the opportunity to attack the credibility of [Mr. Bemis]." 6 43 10 C.F.R. S 2.720 (h) (2) (1) .
44 Tr. 3894-95.
45 Intervenors' Brief at 12.
46 Id. at 13.
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I 18 Although the intervenors urged several grounds in s.,
support of the subpoena below, they did not, contrary to 4,
wha.t they state in their brief, assert that Mr. O'Reilly's testimony was needed to test the credibility of Mr. Bemis.
i s1, In their,qubpoene application, they averred that Mr.
O'Reill'y 5 s position as regional administrator put him in the beskpositiontoknowabout the applicants' management.47 Even after Mr. Be is testified, and the Licensing Board gave them a second opportunity to establish the exceptional s
circumstances requiring Mr. O'Reilly's testimony, the intervenors still claimed only that he had knowledge of
, facta no ' shared by Mr. Bemis. Thus, the intervenors' newly as e'ted r ground for the subpoena was never presented to the L{ censing Board and we may not entertain it for the
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47 Seg\J oint Intervenors' Request for Subpoenas for Joint', Contention 1 (Management Capability) (August 17, 1984) at 2-3. With respect to Mr. O'Reilly, the intervenors' application stated, without more, that James P. O'Reilly, as the head of NRC staff in
, Region II, receives reports from all of the insp,ect. ors and has been able to develop the most s[ ' . complete picture of the Applicants' management.
$' Mr. O'Reilly was also instrumental in recommending f ,
the fines, particularly the 1983 fine for
, $600,000, for various violations at the Applicants' nuclear power plants. Additionally, Mr.' O'Reilly can also compare the management s ,
abillty of the Applicants with other similar companies in the Southeast. Again, Mr. Bemis g
cannot do this.
.'- 48 See Tr. 3882-86.
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1 19 first time on appeal.49 Because the intervenors have asserted no other grounds for reversing the Licensing Board's denial of the subpoena, their appeal on this point must fail.50 B. The intervenors next challenge the Licensing Board's findings on joint contention IV. As litigated, that contention questioned "'whether the TLDs and measuring equipment and processes to be used at the Harris facility 49 See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 82-83 (1985).
50 The intervenors also charge that the Licensing Board erred in denying their motion to reopen the record on joint contention 1 in order to receive the affidavit of Chan Van Vo, a_ terminated employee of CP&L. The Board below denied the reopening motion because it was untimely and raised allegations that, at best, were of marginal significance to the management contention. See Memorandum and Order (December 7, 1984) and accorpanying attachment at 7374-76.
In their brief, the intervcnors do not address the Licensing Board's ruling and otherw;20 explain how their motion met the test for such motions. See Kansas Gas and Electric Co.
(Wolf Creek Generating Stati7n, Unit No. 1) , ALAB-462, 7 NRC 320, 338 (1978); 51 Fed. Reg. 19,535, 19,539 (1986) (to be codified at 10 C.F.R. S 2.734). Rather, they simply declare that the affidavit is relevant to the management contention because it directly contradicts the testimony of two CP&L officers that no worker had ever brought safety concerns to them. Such bald assertions are obviously insufficient to raise properly the denial of their reopening motion.
Nevertheless, we have reviewed the motion and find the Licensing Board's denial of it unassailable.
51 As filed, the contention consisted originally of four claims, but the Licensing Board granted summary disposition on three of them. See Memorandum and Order (April 13, 1984); Tr. 2218.
20 can measure occupational doses with sufficient accuracy to comply with NRC regulations.'"52 Although NRC regulations do not dictate an explicit standard of accuracy for measurements of radiation doses to workers, the Licensing Board found that the regulations would be satisfied if the applicants' TLD processing met the allowable uncertainty in the measurement of doses above 5 rem endorsed by the International Commission on Radiation Protection (ICRP) . 53 The applicants introduced evidence of tests conducted at the University of Michigan that showed that the TLD processing in use at Shearon Harris meets the accuracy standard established by the American National Standards Institute (ANSI) in 1983.54 In the Licensing Board's view, 52 7,P-85-28, 22 NRC at 258.
Thermoluminescent dosimete.s ("TLDs") are commonly worn by persons working in radiologically controlled areas of nuclear power plants for the purpose of determining their radiation exposure. When a TLD is irradiated by ionizing radiation, it absorbs and stores energy. By heating the TLD, some of that stored energy is released in the form of light that then can be measured, with the quantity of light being proportional to the dose received by the person wearing the TLD. See Browne, Tr. fol. 6407, at 3-4.
53 See LBP-85-28, 22 NRC at 259-62.
54 See Browne, Tr. fol. 6407, at 8-10. We note that the 1983 ANSI standard, known as ANSI N13.11-1983, is part of the regulatory scheme of a proposed rule concerning the evaluation of dosimetry processors. See 49 Fed. Reg.
1205-11 (1984).
21 this standard is less stringent than that of ICRP.55 Nevertheless, based on the applicants' expert testimony, it found that the University of Michigan test results would be acceptable even if the ICRP criterion was used. 6 Hence, the Board concluded that "these test results provide an unusually clear and unequivocal line of evidence that refutes the allegation of dosimetry inaccuracies in [ joint contention IV], and demonstrates compliance with NRC regulations."57 On appeal, the intervenors assert that the Licensing Board erred "in allowing the Applicants to violate the regulatory limits for actual exposure to radiation."58 Citing 10 C.F.R. S 20.101 (a) , the intervenors argue that this section sets " limits for delivered dosage to which workers may-be exposed."59 They then refer to 10 C.F.R. ~ ~
55 In fact, a detailed comparison of the ANSI and ICRP criteria provided by the applicants demonstrated that the ANSI criterion is more stringent than the ICRP criterion at very low dose levels. See Browne, Tr. fol. 6407, at 11-12.
See also Tr. 6519-21.
56 See LBP-85-28, 22 NRC at 262-63.
57 Id. at 263. The Board also found that the applicants' quality control program for assuring the reliability of their dosimetry processing is adequate. See id. at 263-66. The intervenors' appeal is not concerned with this aspect of the Board's decision.
8 Intervenors' Brief at 19. '
9 Id. at 17.
22 S 20.407 and claim that the personnel monitoring information reports required by this rule "are based on the actual delivered dosage received by the workers."60 Thus, they assert, in effect, that the regulations set absolute values and that the Licensing Board was obliged to " correct" for the " difference" between the radiation dose as measured by a TLD and the dose actually received in determining the acceptability of the applicants' TLDs.
The intervenors are mistaken in their interpretation of the Commission's regulations. Section 20.4 defines units of radiation dose as used in Part 20. It does so, not in terms of absolute values, but as a measure of the dose received:
"The rad . . , is a measure of the dose of any ionizing radiation to body tissues in terms of the energy absorbed per unit mass of the tissue;"61 and "[t]he rem is a measure of the dose of any ionizing radiation to body tissues in terms of its estimated biological effect relative to a dose of one roentgen (r) of X-rays."62 Even clearer is paragraph (d) of section 20.4:
For determining exposures to X or gamma rays up to 3 Mev, the dose limits specified in SS 20.101 to 20.104, inclusive, may be assumed to-be equivalent to the " air dose". For the purpose 60
_I_d.
01 10'C.F.R. S 20.4 (b) (emphasis added) .
4 10 C.F.R. S 20.4 (c) (emphasis added) .
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of this part " air dose" means that the dose is measured by a properly calibrated appropriate instrument in air at or near the body surface in the region of highest dosage rate.
It is thus apparent that the Commission's regulations, in setting dose limits, speak in terms of measured doses, not theoretical absolutes. Further, the Commission's regulation dealing with personnel monitoring, 10 C.F.R. S 20.202, is fully consistent with this approach. Section 202 (a) provides that each licensee "shall supply appropriate personnel monitoring equipment to" its employees and then defines that equipment in section 202 (b) (1) as " devices designed to be worn or carried by an individual for the '
purpose of measuring the dose received (e . g . , film badges, pocket chambers, pocket dosimeters, film rings, etc.)."
Thus, contrary to the intervenors' argument, the regulations are based only on measured doses and the Licensing Board did not err in concluding that the applicants' TLD program complied with the agency's rules.
The intervenors also seem to accuse the Licensing Board of approving the accuracy of the applicants' TLD processing on the basis of the 1983 ANSI standard, which they claim is not stringent enough. They apparently misapprehend the Board's decision. While it is true that the Board determined that the applicants' accuracy in reading TLDs satisfies the 1983 ANSI standard, it actually approved the accuracy of the applicants' dosimetry processing program on
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24 the basis of its finding that the program met the ICRP
-criterion, which the Board considered more stringent. The intervenors have not attacked this finding on appeal and we see no reason to reject it.64 C. Eddleman contention 9G alleged that the program for environmental qualification of electrical equipment at Shearon Harris is suspect because of " inadequate assurance that failure to report all results of environmental qualification tests, including failures, has been brought to light . . . . This includes past test failures of equipment which subsequently passes an [ environmental qualification]
test and test failures of equipment which is said to be qualified by similarity.,65 As filed, the sole basis for this contention was a reference to a portion of a report by the Sandia National Laboratories. That report concerned inspections of the Rockbestos Company, a supplier of several types of cable used in Shearon Harris. According to the 1
i Sandia report, that manufacturer failed to reveal in its 63 See LBP-85-28, 22 NRC'at 262. See supra pp. 20-21.
64 As further assurance that worker exposure will be kept within regulatory limits at Shearon Harris, we note that several aspects of the applicants' dosimetry quality l control program employ acceptance criteria more restrictive than the ANSI standard. See Browne, Tr. fol. 6407, at 20-23. The applicants do not plan to relax their acceptance criteria. See Tr. 6536.
65 LBP-85-28, 22 NRC at 267.
25 environmental qualification reports on five types of cable, that four of the cable types had suostantially degraded during testing. Instead, Rockbestos_ qualification reports claimed that these four cable types were qualified by similarity to the fifth type of cable, which had not degraded. That fifth type of cable, however, apparently had degraded during previous qualification attempts -- a fact not mentioned in the Rockbestos report.66 Shearon Harris contains five types of Rockbestos cable.67 The applicants had originally intended to rely on the manufacturer for assurance that- the cables were environmentally qualified. After learning of the 66 See i_d_. at 286; Prunty, et al., Tr. fol. 5515, at 67 Two of the-cables, RSS-6-104/LD and RSS-6-105/LD, are both coaxial cables of identical construction, and their conductors, insulation shields, and jackets are of the same materials. A third cable, RSS-6-108/LD, is a triaxial cable that uses the same materials but has a thicker insulation and jacket and an additional concentric shield. The similarity of construction and materials of these three cables provides a basis to apply the qualification of either of the coaxial cables to all three. The two remaining cables are Firewall III insulated thermocouple cables and Firewall III insulated control cables that utilize the same insulating material. The insulation on the thermocouple cable is only 25 mils (i.e. , 0. 025 inches) thick, however, while that on the control cable is 30 mils. But, there is an additional metallic shield and a jacket on the thermocouple cable that more than compensate for this smaller insulation thickness. Prunty, et al., Tr. fol.
5155, at 6-7; Supplemental Testimony of Prunty, et al., Tr.
fol. 5515 [ hereinafter cited as " Supplemental Testimony"),
at 4-6.
I I
26 unreliability of the Rockbestos reports, however, the applicants demonstrated the environmental qualification of the cables used in Shearon Harris by relying upon environmental qualification testing by the Conax Corporation of assemblies that included Rockbestos Company, RSS-6-105/LD cable.68 The applicants determined that the qualification test parameters used by Conax include the necessary parameters for the Shearon Harris plant and, because only minor differences exist among the three RSS cable types, the results of the Conax testing are applicable to the other Rockbestos coaxial and triaxial cables. Further, the applicants obtained two reports that describe environmental qualification tests on Firewall III control cable performed by Sandia National Laboratories. One of the Rockbestos control cables used at Shearon Harris was among the cable 68 The applicants qualified the quality assurance program of Conax Corporation by using an audit by another utility as part of the Coordinating Agency for Supplier Evaluation (CASE) program. See Tr. 5529-30. In their brief, the intervenors appear to question the validity of such an audit because it was not performed by the applicants or the staff. Even though the intervenors did not raise this question below, undisputed testimony establishes that this is an acceptable method of qualifying a supplier. See id. In addition, the quality assurance program at Conax (which is a direct vendor at Shearon Harris) has been reviewed and found acceptable by CP&L (the lead applicant) and Ebasco Services, Inc. (the architect / engineer for Shearon Harris). See Supplemental Testimony at 4.
69 See id. at 3-4.
O o-27 types tested. Once again, the applicants determined that the test parameters encompass the applicable Shearon Harris parameters and, because of the similarity between cables, the Sandia tests demonstrate qualification of both Firewall O
III cables in question. Based on this evidence, and the fact that the intervenors "did not present [any] evidence
. . . which would raise a question as to the adequacy of t.4.e Applicants' environmental program to address concerns regarding . . . Rockbestos cables," the Board resolved this contention in the applicants' favor.71 As best we can decipher their brief, the intervenors first assert that the Licensing Board " misinterpret [ed]" the scope of contention 9G to deal solely with test results when
"[o]n its face . . . it is concerned with fraudulent 2
testing". But Mr. Eddleman authored contention 9G and the language of the admitted contention neither mentions nor 3
deals with fraud. Moreover, the stated basis for the contention concerns only the environmental qualification of 0
See id. at 4-6.
I LBP-85-28, 22 NRC at 288.
Intervenors' Brief at 28.
See Memorandum and Order (July 24,1984) at 2. See also Applicants' Motion for Substitution of Contention and for Revision of Schedule to File Direct Written Testimony on Eddleman Contention 9 (July 12, 1984) at 3-7.
+-
28 Rockbestos cable in use at Shearon Harris.74 It is clear from the record and the decision that this was precisely the concern of the parties and the Licensing Board. As far as we can determine, the first mention of fraud is contained in Mr. Eddleman's proposed findings of fact on this contention that he filed after the hearing.75 Thus, the intervenors are bound by the literal terms of their contentions and they cannot now complain that the. Board misinterpreted contention 9G.
The intervenors also appear to dispute the practice of qualification by similarity. But this concept is recognized as acceptable in the Commission's regulations and the intervenors have not directed us to any part of the record that challenges-the adequacy of the applicants' qualification methods.77 Thus, we see no grounds for 74 See supra pp. 24-25.
5 See Wells Eddleman's Proposed Findings on Contentions 41 (Pipe Hangers QA/QC) , 116 (Fire Protection) and 9 (Environmental Qualification of Electrical Equipment)
(January 8, 1985) at 16.
See ALAB-852, 24 NRC , (October 21, 1986)
(slip opinion at 22) .
See 10 C.F.R. S 50.49 (f) (2) . In pertinent part that section states:
(f) Each item of electric equipment important to safety must be qualified by one of the following methods: . . . (2) Testing a similar item of l
(Footnote Continued)
I
29 disturbing the Licensing Board's findings and conclusions on contention 9G.
D. As originally filed, Eddleman contention 65 broadly challenged the quality of concrete placement in the Shearon Harris containment. By the time the contention was litigated, the Licensing Board had narrowed it to thirteen 8
specific concrete placements -- a scope the intervenors do not challenge on appeal. With regard to these concrete pours, the Board concluded that "the record provides no evidence that concrete was inadequately placed" during construction of the containment building.79 The intervenors now challenge this finding.
.First, the intervenors question the Board's conclusion with respect to a problem of insufficient clearance in one concrete placement. Based on~NRC staff-testimony, the Board found that the problem had been identified and corrected.
In addition to discussions with the applicants' employee, the staff witnesses based their conclusion on the applicants' field inspection report for this activity wherein both the problem and its later correction were l
(Footnote Continued) equipment with a supporting analysis to show that the equipment to be qualified is acceptable.
0 See LBP-85-28, 22 NRC at 289-93.
9 Id. at 295.
t
6 e
b.
30 noted.80 The intervenors now assert that " correction of the problem is not documented."81 This position ignores the record and is clearly without merit.82 The intervenors' final complaint regarding Eddleman contention 65 concerns the strength testing of a particular concrete pour. Compressive strength tests conducted on samples from this pour after 28 days revealed that the test samples did not have the required design strength. A 80 See id. at 293-94; Harris, et al., Tr. fol. 6320, at 45; Applicants' Exh. 21, Field Inspection Report for Reinforcing Steel for Placement No. ICBSL216001, sheet 1.
Correction of the problem is indicated in the fourth row of the third column of the field report: "A final re-bar inspection was made and all violations corrected."
81 Intervenors' Brief at 30. The intervenors also assert that the-Board-erred in-relying on the staff witnesses' " hearsay" about conversations with an unnamed employee. The intervenors failed to object to the staff
, testimony below so they cannot now be heard to complain.
l l The intervenors also suggest that the staff is i " covering something up" because a staff witness did not mention in his prepared testimony all of the inspection reports that he had previously listed in an earlier filed l affidavit in support of a motion for summary disposition on l Eddleman contention 65. The intervenors have not given us i any further explanation of their allegation nor did they l raise this issue before the Licensing Board. We have, nevertheless, reviewed both the affidavit and the testimony in question, and find no basis for such a claim.
82 The intervenors' confusion probably resulted from I
the simple fact that the applicants' witness on this matter, besides citing the wrong page of Applicants' Exh. 21, misread the inspection report. The inspection findings should be read vertically; the Witness appears to have read l them horizontally. See Tr. 6069-71.
l i
31 further test conducted after 90 days, however, yielded an average strength of 5660 psi (pounds per square inch), well above the design strength of 5000 psi.83 On the basis of this evidence, the Licensing Board found that "the Applicants properly identified a nonconformance and properly resolved it."84 The Board was satisfied that the subject concrete had the requisite compressive strength. In the intervenors' view, the Board erred in making this finding because it ignored evidence that the applicants violated one of the American Concrete Institute Standards.
According to American Concrete Institute Standard 359-74, concrete in a particular area will be considered structurally adequate, even though it fails to meet the 28-day strength criterion, if the average strength value of three drilled test cores is equal to at least 85% of the
, design strength and if no single core is less than 75% of that strength.85 The intervenors focus on the fact that two of'the five test cores taken from the concrete pour were l
83 Harri s, et al. , Tr. fol. 6320, at 26-27.
04 LBP-85-28, 22 NRC at 294.
85 See the American Society of Mechanical Engineers l Boiler and Pressure Vessel Code,Section III, Division 2 (1975) (incorporating American Concrete Institute Standard 359-74), Article CC-5234.2. The applicants are committed to abiding by this code and industry standard in their Final Safety Analysis Report. See Applicants' Exh. 9 at 3.8.1-12.
o 32 less than 75% of the design strength. Although two cores did fail to meet the 75% requirement, the other three yielded an average strength value above 85%, and none of those three was less than 75% of the design strength. In addition, the industry standard recognizes that results of these tests may be erratic and allows retesting near the location of a concrete core that fails the strength test.
In this regard, staff testimony explained that experience in concrete testing with cores as small as those used here has shown variable results.86 Each of the two cores that failed the strength test was in close proximity to one that passed.87 Hence, contrary to the intervenors' assertion, no violation of the pertinent code or standard occurred.88 We, therefore, fully concur with the Licensing Board's conclusions on Eddleman contention 65.
Having reviewed the intervenors' assertions of error on appeal, we conclude that there is nothing in the challenged Licensing Board's rulings, findings or conclusions that warrants reversal. Further, we have conducted our customary Harris, et al., Tr. fol. 6320, at 27.
O
_I_d.
88 See id. Moreover, the results of the 90-day l compressive test confirms the strength of the concrete.
e 4
33 sua sponte review of the balance of the Licensing Board'e second partial initial decision and have found no errors requiring correction. Accordingly, LBP-85-28, 22 NRC 232 (1985) is affirmed.
In ALAB-852, 24 NRC (1986), we affirmed the Licensing Board's findings and conclusions on the last two contested issues in this proceeding. We withheld our affirr -ion of the Licensing Board's operating license author 2 ation, however, because we had yet to complete our review of the Board's second partial initial decision. Now that we have affirmed that decision, we also affirm the Licensing Board's license authorization.
It is so ORDERED.
FOR THE APPEAL BOARD b.
C. JQn Shoemaker Secretary to the Appeal Board e
a