ML20214A575
| ML20214A575 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 11/14/1986 |
| From: | Churchill B GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20214A578 | List: |
| References | |
| CON-#486-1556 OL, NUDOCS 8611200145 | |
| Download: ML20214A575 (80) | |
Text
l 00(nETE:
Uiyp. November 14, 1986
'E6 NOV 17 A11 :38 UNITED STATES OF AMERICA NUCLEAR REGULATORYpppMMISSION ,
00CKETihu r .. t a vir F iiR A Nf" BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL
- BOARD In the Matter of )
)
GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424 (OL)
) 50-425 (OL)
(Vogtle Electric Generating Plant, )
Units 1 and 2) )
APPLICANTS' BRIEF IN OPPOSITION TO THE APPEAL OF GEORGIANS AGAINST NUCLEAR ENERGY Bruce W. Churchill, P.C.
Delissa A. Ridgway David R. Lewis Rose Ann C. Sullivan SHAW, PITTMAN, POTTS & TROWBRIDGE James E. Joiner, P.C.
Charles W. Whitney John R. Molm
, TROUTMAN, SANDERS, LOCKERMAN l & ASHMORE Counsel for Applicants l
8611200145 861114 PDR ADOCK 05000424 3D
November 14, 1986
' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424 (OL)
) 50-425 (OL)
(Vogtle Electric Generating Plant, )
Units 1 and 2) )
APPLICANTS' BRIEF IN OPPOSITION TO THE APPEAL OF GEORGIANS AGAINST NUCLEAR ENERGY Bruce W. Churchill, P.C.
Delissa A. Ridgway David R. Lewis Rose Ann C. Sullivan SHAW, PITTMAN, POTTS & TROWBRIDGE James E. Joiner, P.C.
Charles W. Whitney John R. Molm TROUTMAN, SANDERS, LOCKERMAN
& ASHMORE Counsel for Applicants
TABLE OF CONTENTS PAGE TABLE OF CONTENTS...............................................i TABLE OF AUTHORITIES......................................... 1i1 STATEMENT OF THE CASE.......................................... 2 STATEMENT OF LAW............................................... 4 A. Standard of Pleading for Contentions................. 4 B. Standards Governing Summary Disposition............. 8 C. Standards of Briefs................................. 11 A RG UME NT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 1, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 13 II. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 2, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 16 III. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 4, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 20 IV. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 5, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 23 V. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 6, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 30 VI. THE LICENSING BOARD CORRECTLY DECIDED GANE'S CONTENTION 7, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 34 VII. THE LICENSING BOARD CORRECTLY RESOLVED GANE'S CONTENTION 8 ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL......................... 43
PAGE VIII. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 9, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 54 IX. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 10.2, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 55 X. THE LICENSING BOARD CORRECTLY RESOLVED GANE'S CONTENTION 10.3 ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL......................... 56 XI. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 10.6, THERE ARE NO GROUNDS FOR APPEAL, AND THE RECORDS SHOULD NOT BE REOPENED.............. 59 XII. THE LICENSING BOARD CORRECTLY RESOLVED GANE'S CONTENTION 10.7 ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL......................... 61 XIII. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 10.9, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 63 XIV. THE LICENSING BOARD CORRECTLY REJECTED STRESS-CORROSION CRACKING AS A SUB-ISSUE OF GANE'S CONTENTION 11, AND THERE ARE NO GROUNDS FOR REVERSAL............................................ 64 XV. THE LICENSING BOARD CORRECTLY RESOLVED EMERGENCY PLANNING CONTENTIONS ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL................... 66 XVI. THE LICENSING BOARD CORRECTLY RESOLVED GANE'S CONTENTION 14 ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL................... 67 CONCLUSION.................................................... 70
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TABLE OF AUTHORITIES PAGE CASES:
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)........... 9,10 Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976)............... 5 Cnivert Cliff's Coordinating Comniittee, Inc. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971)................................ 17 Kleppe v. Sierra Club, 427 U.S. 390 (1976).................... 18 NRDC v. Morton, 458 F.2d 827 (D.C. Cir. 1972)................. 22 Scientists' Institute for Public Information, Inc.
- v. AEC, 481 F.2d 1079 (D.C. Cir 1973)......................... 22 Varmont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).......................................... 5,8 Wastside Properties Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979).......................................... 18 ADMINISTRATIVE DECISIONS:
Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7. A.E.C. 210 (1974)............. 4,7,9 Cerolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C.
2069 (1982)................................................. 6,22 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LPB-81-24, 14 N.R.C.
175 (1981)..................................................... 6 Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 N.R.C. 419 (1980)............................ 11 Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit No. 2), ALAB-159, 6 A.E.C. 1001 (1973)........................................................ 11
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e
_ PAGE
. Consumers Power Co. (Midland Plant, Units 1 and 2),
CLI-74-5,- 7 A.E.C. 19 (1974)................................... 5 l Consumers Power Co. (Midland Plant, Units 1 and 2),
.LBP-83-50, 18 N.R.C. 242 (1983)............................... 60 Duke Power Co. (Catawba Nuclear Station, Units 1 j cnd 2), ALAB-355, 4 N.R.C. 397 (1976)...................... 11,55 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-107A, 16 N.R.C. 1791 (1982)..................... 6 J
Duke Power Co. (Cherokee Nuclear Station, Units 1, i 2, and 3), ALAB-457, 7 N.R.C. 70 (1978)....................... 60 l
$' Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 N.R.C. 453 (1982)................ 12 i Duquesne Light Co. (Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 A.E.C. 243 (1973)..................... 5 i
I Giorgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), LBP-84-35, 20 N.R.C. 887 (1984)..................................................... passim 1
l Gulf States Utilities Co. (River Bend Station, Units 2 and 2), ALAB-444, 6 N.R.C. 760 (1977).............. 32,65
! Gulf States Utilities Co. (River Bend Station, 4
Units 1 and 2), LBP-75-10, 1 N.R.C. 246 (1975)................ 10 l Houston Lighting and Power Co. (Allens Creek 4 Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542 (1980)...................................... 4,6,10 1
j Houston Lighting and Power Co. (Allens Creek i Nuclear Generating Station, Unit 1), ALAB-582, l 11 N.R.C. 239 (1980).......................................... 60 i
Houston Lighting and Power Co. (South Texas Project, l
Units 1 and 2), ALAB-799, 21 N.R.C. 360 (1985)................ 12 i
Kansas Gas & Electric Co. (Wolf Creek Generating
! Station, Unit No. 1), ALAB-424, 6 N.R.C. 122 (1977)..... 12,51,69 1
i Kensas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 N.R.C. 559 (1975)....... 7,8,15
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, PAGE Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 N.R.C. 1321 (1983).......... 60,61-Louisiana Power and Light Co. (Waterford Steam Electric
, Station, Unit 3), ALAB-732, 17 N.R.C. 1076 (1983)............. 13 i
Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A.E.C. 423 (1973)......................................................... 5 Northern Indiana Public Service Co. (Bailly Generating
- Station, Nuclear 1) ALAB-619, 12 N.R.C. 558 (1980)............. 5 Northern States Power Co. (Prairie Island Nuclear G:nerating Plant, Units 1 and 2), ALAB-244, 8 A.E.C.
1 857 (1974).................................................... 58 Pccific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-39, 16 N.R.C.
- 1712 (1982)................................................... 60 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 N.R.C.
819 (1984).................................................... 36 Psnnsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-82-30, 15 N.R.C.
, 771 (1982).................................................... 21 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 N.R.C. 587 (1985)................ 17 4
4 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-785,,20 N.R.C. 848 (1984)................ 18 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-765, 19 N.R.C. 645 (1984)................. 6 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 N.R.C. 1423 (1982)........... 6,17
- Philadelphia Electric Co. (Peach Bottom Atomic Power j Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13 (1974)...... 5,7,8 i Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-534, 9 N.R.C. 287 (1979).................................. 5 1
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-n -a, , . .-, n,-,-e---,.--.--~ >-,ew--e, n n.-~w-,,-v- ----,,---.v.-- -w--- , .- - , - - . - -- - - , - - - - - - nn,n-
PAGE Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 N.R.C. 179 (1978)........................................... 55 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 N.R.C. 167 (1976)............................................ 5 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 N.R.C. 1649 (1982)............ 5,6 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-32A, 17 N.R.C. 1170 (1983)............. 10 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C. 775 (1979),
rsv'd on other grounds, CLI-80-8, 11 N.R.C.
433 (1980)................................................ 11, 12 Public Service Electric and Gas Co. (Hope Creek G;nerating Station, Units 1 and 2), ALAB-394, 5 N.R.C.
769 (1977).............................................. 12,51,69 Public Service Electric and Gas Co. (Salem Nuclear G2nerating Station, Unit 1), ALAB-650, 14 N.R.C.
43 (1981).................................................. 11,58 Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-648, 14 N.R.C.
34 (1981).................................................. 58,60 South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-710, 17 N.R.C.
25 (1983)..................................................... 29 Tannessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 2B), ALAB-554, 10 N.R.C.
15 (1979)...................................................... 9 Tennessee Valley Authority (Hartsville Plant, Unit 1A, 2A, 1B, and 2B), ALAB-463, 7 N.R.C. 341 (1978)............. 52,58 Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C. 1167 (1983)............ 43,60 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 N.R.C. 387 (1983)................ 12
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, PAGE l l
Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 N.R.C. 1245 (1982)............... 67 REGULATIONS:
10 C.F.R. I 2.104(c) (1986).................................... 5 10 C.F.R. $ 2.714(b) (1986)........................... 4,13,14,15 10 C.F R. 5 2.730(b) (1986)................................... 60 10 C.F.R. 5 2 . 7 3 2 ( 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 10 C.F.R. $ 2.734(a) (1986)................................... 60 10 C.F.R. $ 2.734(b) (1986)................................... 60 1 10 C.F.R. 5 2.734(d) (1986)................................... 60 !
10 C.F.R. 5 2.749 (1986)....................................... 9 l 10 C.F.R. 5 2.749(a) (1986)................................... 41 10 C.F.R. $ 2.749(b) (1986).................................... 9 l 10 C.F.R. 5 2.749(d) ( 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 C.F.R. s 2.762(c) (1986).................................... 1 l 10 C.F.R. $ 2.762(d)(1) (1986)................................ 12 !
10 C.F.R. 5 50.49(e)(7) (1986)................................ 55 10 C.F.R. 5 5 0 . 61 ( 19 8 6 ) . '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 10 C.F.R. 5 51.23(c) (1984)................................... 17 10 C.F.R. 5 51.75 (1986)...................................... 17 10 C.F.R. Part 100, App. A (1986)............................. 27
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PAGE MISCELLANEOUS:
Advisory Committee Note to 1963 Amendment to Fcd. R. Civ. P. 56(e).......................................... 9 48 Fed. Reg. 46,670 (1983)..................................... 2 48 Fed. Reg. 57,183'(1983)..................................... 2 49 Fed. Reg. 4,570 (1984)...................................... 2 50 Fed. Reg. 29,937 (1985).................................... 31 Fcd. R. Civ. P. 56(e).......................................... 9 NUREG-0606, Unresolved Safety Issues Summary (Vol. 6, No. 1, Feb. 27, 1984)................................ 31 NUREG-0649, Task Action Plans for Unresolved Sofety Issues Related to Nuclear Power Plants, (Feb. 1980)................................................... 31 Statement of Policy or Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452 (1981)................... 10
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. - - . _ . _ _ . - - . . --- . - , -- - - - - - - - - - - - - - - - - - - - - - ~ ~ - - - - ~ ~ ' -
1 November 14, 1986 UNITED STATES OF AMERICA
, NUCLEAR REGULATORY COMMISSION
, BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 1
In the Matter of )
)
GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424 (OL)
) 50-425 (OL)
(Vogtle Electric Generating Plant, )
Units 1 and 2) )
APPLICANTS' BRIEF IN OPPOSITION TO THE APPEAL OF GEORGIANS AGAINST NUCLEAR ENERGY Pursuant to 10 C.F.R. 5 2.762(c), Georgia Power Company, Mu-nicipal Electric Authority of Georgia, Oglethorpe Power Corpora-tion, and the City of Dalton, Georgia (" Applicants") submit this brief in opposition to the appeal filed by Georgians Against Nuclear Energy ("GANE") in the above captioned proceeding.
In an unsigned pleading filed without certificate of service on October 31, GANE adopted as its own the appellate brief previ-ously submitted by Howard Deutsch. Applicants herein attempt to respond to all the issues raised in GANE's brief, but GANE's
. brief is unaccountably vague. The lack of particularized asser-tions of error and meaningful argument in GANE's brief is preju-dicial, since it deprives Applicants of fair notice of the claims
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cgainst.which Applicants must defend and precludes concise, re-sponsive rebuttal. In most instances, Applicants have been un-cble to determine what error is being claimed, and could do lit-tlemorethanrecounttheargdmentssupportingandbasesfor
. j rulings challenged by GANE. g STAT 2 MENT OF CASE This proceeding involves Applicants' application for licenses to operate the Vogtle Electric Generating Plant, Units 1 cnd 2. See 48 Fed. Reg. 46,670 (1983); 48 Fed. Reg. 57,183 (1983). The Vogtle Electric Generating Plant ("VEGP") comprises two pressurized water nuclear reactors located in Burke County, G orgia, 26 air miles south-southeast of Augusta and 15 air miles east-northeast of Waynesboro. 48 Fed. Reg. 57,183 (1983).
On December 28, 1983, the Nuclear Regulatory Commission
("NRC") published a Federal Register Notice of opportunity for Haaring. Id. Petitions for leave to intervene were subsequently filed, and on January 31, 1984, an Atomic Safety and Licensing Board was established to rule on the petitions and preside over the proceeding in the event a hearing was ordered. 49 Fed. Reg.
4,570 (1984).
Two petitioners -- GANE and Campaign for a Prosperous G2orgia (" CPG") -- submitted proposed contentions, most of which l ware identical. On May 30, 1984, the Board conducted a i
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prehearing conference to address the,se contentions. Thereafter, by Memorandum and Order dated September 5, 1984, the Licensing j Board admitted for adjudication nine contentions and granted GANE cnd CPG intervenor status. LBP-84-35, 20 N.R.C. 887 (1984). By M:morandum and Order dated November 5, 1984, the Licensing Board J
consolidated GANE and CPG as Joint Intervenors. Eleven addition-I el contentions and subcontentions relating to off-site emergency
- planning were admitted by Memorandum and Order dated August 12, 1985. '
l l Following discovery, Applicants moved for summary disposi-l tion of each of the admitted contentions. Joint Intervenors re-sponded to and opposed only two of the motions (pertaining to contentions 7 and 8). The Licensing Board, however, denied in whole or part three of Applicants' motions for summary disposi-i tion (pertaining to contentions 7, 10.1, and 10.5).
I Hearings on these three contentions were held in March 1986.
i l At these hearings, CPG withdrew from the proceeding. Tr. 240, 246-47. Following the hearing, the Licensing Board issued a Par-l tial Initial Decision resolving two of the litigated contentions i
- (contentions 7 and 10.1) in favor of Applicants. Partial Initial ,
! Dscision ("PID") (Aug. 27, 1986). Contention 10.5 is still bsfore the Licensing Board. GANE now appeals the Licensing j Board's decision on contention 7 and a number of Licensing i
,' Board's previous interlocutory orders rejecting or resolving contentions.
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l
STATEMENT OF LAW Three legal arguments recur throughout this brief: 1) that the Licensing Board properly rejected contentions for their fail-ure to eatisfy pleading requirements; 2) that the Licensing Board properly resolved contentions on summary disposition; and 3) that GANE has not adequately identified and briefed its claims of crror. To avoid repetition and for the convenience of the Appeal Board, Applicants provide a statement of the law applicable to these arguments.
A. Standard of Pleading for Contentions In order for a contention to be admissible, the Commission's Rules of Practice require that a petitioner set forth a basis for the contention with reasonable specificity. 10 C.F.R. 5 2.714(b). This standard requires that a contention state a cognizable issue with particularity, Alabama Power Co. (Joseph M.
Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 216-17 (1974), and include a reason why the issue warrants fur-l ther consideration. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542, 548
- (1980),
i For a contention to be cognizable in a proceeding, it must cddress a matter that is within the scope of the issues set forth in the Commission's Notice and Opportunity for Hearing in the
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proceeding. See Northern Indiana Public Service Co. (Bailly G:nerating Station, Nuclear 1), ALAB-619, 12 N.R.C. 550, 565 (1980); Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-534, 9 N.R.C. 287, 289-90 n.6 (1979); Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 cnd 2), ALAB-316, 3 N.R.C. 167, 170-71 (1976). A contention must h ve application to the facility in question. Duquesne Light Co.
(Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 A.E.C. 243, 246 n.5 (1973). It must be relevant to those matters de-fined in 10 C.F.R. $ 2.104(c). It must also be material, for there can be no justification in pursuing a matter whose resolu-tion could not affect the outcome of the proceeding.
The basis that must accompany each contention must provide a foundation sufficient to warrant further exploration. Beaver Valley, supra, ALAB-109, 6 A.E.C. at 246; Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13, 21 (1974). See also Public Service Co. of New H mpshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 N.R.C. 1649, 1655 (1982), citing Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-5, 7 A.E.C. 19, 32 n.27 (1974),
rcv'd sub nom., Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976),
rnv'd sub nom., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-54 (1978). The basis need not set forth evidence to establish this foundation. Mississippi Power and Light Co.
l (Grand Gulf Nuclear Station, Units 1,and 2), ALAB-130, 6 A.E.C. 423, 426 (1973). It should, however, explain with sufficient de-tail why specified regulations are not met, or allege with par-ticularity the existence and detail of a substantial safety issue on which the NRC's regulations are silent. Seabrook, supra, LBP-82-106, 16 N.R.C. at 1655-56 and n.5. In the same vein, it chould refer to and addreas the pertinent sections of the Final Snfety Analysis Report and Environmental Report for the facility.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, .-
Units 1 and 2), LBP-81-24, 14 N.R.C. 175,.184 (1981). It must-I hcVe a minimal level of credibility, see Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB.765, 19 N.R.C. 645, 654 (1984), and cannot rest on inaccurate description of an applicant's proposal or on misstatement of the content of licensing documents. See Carolina Power & Light Co. (Shearon l
Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C. 2069, 2076 (1982); Duke Power Co. (Catawba Nuclear Sta-tion, Units 1 and 2), LBP-82-107A, 16 N.R.C. 1791, 1804 (1982);
! Philadelphia Electric Co. (Limerick Generating Station, Units 1 4
and 2), LBP-82-43A, 15 N.R.C. 1423, 1504-05 (1982).
2 As a general proposition, a Licensing Board should not I
eddress the merits of a contention in determining admissibility.
Allens Creek, supra, ALAB-590, 11 N.R.I at 548. However, a con-tantion and its basis must be scrutiniz id to determine if a i
i a
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i -cpecific, litigable issue has been ploaded. Joseph M. Farley, cupra, ALAB-182, 7 A.E.C. at 216-17. Such scrutiny is necessary l 1) to assure that the proposed issues are proper for adjudica-1 i tion, 2) to assure at the pleading stage that the hearing process
] ,
j 10 not improperly invoked, and 3) to assure that other parties j ore sufficiently put on notice of what they will have to defend l egainst,or oppose. Peach Bottom, supra, ALAB-216, 8 A.E.C. at 20-21. In this regard, there must be a strict observance of the i
requirements governing intervention. Id. at 21.
The notice aspect of the pleading requirements is a natural outgrowth of fundamental notions of fairness applied to the party i with the burden of proof.
i, 1 The applicant is entitled to a fair chance to I defend. It is therefore entitled to be told
{ at the outset, with clarity and precision,
! what arguments are being advanced and what ,
l relief is being asked . . . So is the Board '
) below. It should not be necessary to specu- '
late about what a pleading is supposed to mean.
i L i
Kensas Gas and Electric Co. (Wolf Creek Generating Station, Unit l I
j No. 1), ALAB-279, 1 M.R.C. 559, 576 (1975) (emphasis added; foot-j note omitted). Moreover, the Licensing Board is entitled to ade-I quate notice of a petitioner's specific contentions to enable it j to guard against obstructionism of its processes. As noted by
) the Supreme Court in upholding the Commission's requirements for l c threshold showing of materiality:
)
i i
i
. . . (I]t is still incumbent upon interve-nors who wish to participa~te to structure their participation so that it is meaningful, so that it alerts the agency to the interve-nors' position and contentions . . . Indeed, administrative proceedings should not be a game or forum to engage in unjustified ob-structionism by making cryptic and obscure reference to matters that "ought to be" con-sidered. . . .
Vnrmont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-554 (1978).
The specificity requirement transcends " notice pleading" al-lewed in the federal courts, which has"been found to be insuffi-cient for NRC licensing' proceedings. See Wolf Creek, supra, ALAB-279, 1 N.R.C. at 575 n.32 (1975). As the Appeal Board has observed, "[t]he degree of specificity with which the basis for a contention must be alleged initially involves the exercise of judgment on a case-by-case basis." Peach Bottom, supra, ALAB-216, 8 A.E.C. at 20. The Licensing Board's judgment should not be lightly overturned.
B. Standards Governing Summary Disposition The admission of a contention does not dictate that a hear-ing be held on the issues raised. Section 2.749 of the NRC's Rules of Practice authorizes a licensing board to grant summary disposition of an admitted contention without proceeding to a hearing. Delineating the standard to be applied by a licensing board in ruling upon such a motion, that section further states:
L
The presiding officer shall render the deci-sion sought if the filings in the proceed-ings, depositions, answers to interrogato-ries, the admissions on file, together with the statements of the parties and the affida-vits, if any, show that there is no genuine issue of fact and that the moving party is entitled to a decision as a matter of law.
10 C.F.R. $ 2.749(d).
10 C.F.R. $ 2.749 also provides, as do the Federal Rules of Civil Procedure, that where a motion for summary disposition is properly supported, a party opposing the motion may not rest upon the mere allegations or denials of its answer.1/ 10 C.F.R.
I 2.749(b). Compare Fed. R. Civ. P. 56(e). The purpose of Fed.
R. Civ. P. 56(e), and consequently of 10 C.F.R. I 2.749(b), is to pierce the pleadings. See Adickes v. S. H. Kress & Co., 398 U.S.
144, 159 n.20 (1970). See also Advisory Committee Note to 1963 Amendment to Fed. R. Civ. P. 56(e) ("The very mission of the sum-mary judgment procedure is to pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial"). .
4 1/ 10 C.F.R. $ 2.749 is patterned after Fed. R. Civ. P. 56, and its standards are the same. Accordingly, recourse to federal case law to interpret the standards under the Commission's rule 10 appropriate. Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-554, 10 N.R.C. 15, 20 n.17 (1979); Alabama Power Co. (Joseph H. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 217 (1974).
9
Consonant with this purpose, wh,ere a movant has made a prop-or showing for summary disposition and has supported his motion by affidavit, the opposing party must proffer countering eviden-tiary material or explain in an affidavit why it is impractical to do so. Public Service Co. of New Hampshire (Seabrook Station, Unit 1 and 2), LBP-83-32A, 17 N.R.C. 1170, 1174 n.4 (1983),
citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 160-61 (1970).
A party cannot avoid summary disposition on the basis of guesses or suspicions, or on the hope that at the hearing Applicants' ev-idence may be discredited or that "something may turn up." Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
LBP-75-10, 1 N.R.C. 246, 248 (1975).
The Commission has encouraged Licensing Boards to use the
, cummary disposition process where the proponent of a contention '
hos failed to establish that a genuine issue exists, so that evi-i d ntiary hearing time is not unnecessarily devoted to such iosues. Statement of Policy on Conduct of Licensing Proceedings, j CLI-81-8, 13 N.R.C. 452, 457 (1981). The summary disposition procedures " provide in reality as well as in theory, an efficaceous means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial L 4
1 incues. . . ." Houston Lighting and Power Co. (Allens Creek
] Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542, 550 1
(1980).
1 l
i
C. Standards of Briefing j
The Commission's Rules of Practice and NRC precedent demand I that an appellant brief its claims of error with particularity.
A brief must contain sufficient information and argument to allow
! the appellate tribunal to make an intelligent disposition of the i
l icaues raised. Duke Power Co. (Catawba Nuclear Station, Units 1 l
cnd 2), ALAB-355, 4 N.R.C. 397, 413 (1976). All factual asser-tions must be supported by record references. Consolidated l Edison Co. of New York, Inc. (Indian Point Station, Unit No. 2),
ALAB-159, 6 A.E.C. 1001 (1973); Commonwealth Edison Co. (Zion i
Station, Units 1 and 2), ALAB-616, 12 N.R.C. 419, 424 (1980);
Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C. 775, 786-87 (1979), rev'd on other grounds, CLI-80-8, 11 N.R.C. 433 (1980).
,! An appellant's brief must also contain sufficient in-i formation to provide an opponent with a fair opportunity to come to grips with the appellant's arguments. Public Service Electric end Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 N.R.C. 43, 49-50 (1981). "[N]ot disclosing the authorities and evidence on which the appellant's case rests . . . virtually precludes an intelligent response by appellees." Id.
\
j commensurate with these considerations, the Commission's Rules of Practice provide i
, i 1
An appellant's brief must clearly identify the errors of fact or law 'that are the sub-ject of the appeal. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided.
10 C.F.R. I 2.762(d)(i).
Mere reference to transcript pages where supposed error occurred, without discussion of why what oc-curred was error, is inadequate. Houston Lighting & Power Co.
(South Texas Project, Units 1 and 2), ALAB-799, 21 N.R.C. 360, 378 (1985). Doing little more than quoting a previously rejected centention is inadequate. Wisconsin Electric Power Co. (Point B3ach Nuclear Plant, Unit 1), ALAB-719, 17 N.R.C. 387, 395 (1983). Incorporating by reference arguments and assertions made in documents filed with the Licensing Board is inadequate. Kansas Gns & Electric Co. (Wolf Creek Generating Station, Unit No. 1),
ALAB-424, 6 N.R.C. 122, 126-27 (1977); Public Service Electric end Gas Co. (Hope Creek Generating Station, Units 1 and 2),
ALAB-394, 5 N.R.C. 769, 770 (1977).
Claims of error that are without substance or are inade-quotely briefed will not be considered on appeal. Duke Power Co.
(William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 N.R.C. 453, 456, 481 (1982); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C. 775, 786-87 (1979); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 N.R.C. 387, 395 (1983). Exceptions
that are not fully briefed are considered waived. Louisiana Prwer and Light Co. (Waterford Steam Electric Station, Unit 3),
ALAB-732, 17 N.R.C. 1076, 1083 n.2 (1983).
ARGUMENT I. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 1, AND THERE ARE NO GROUNDS FOR REVERSAL GANE's proposed contention 1 alleged that Applicants had not "cdequately nor (sic) correctly addressed the potential releases of radionucleides (sic). . . nor the . . . effects of ioni;Ang rcdiation."2/ GANE Supplement to Petition for Leave to Intervene end Request for Hearing (April 11, 1984) (hereinafter referred to co "GANE April 11, 1984 Supplement") at 1. The Licensing Board rojected this contention for its failure to satisfy the standards of pleading required by 10 C.F.R. $ 2.714(b). LBP-84-35, 20 N.R.C. at 912. Those standards are discussed at pages 4-8 above.
GANE appeals the Licensing Board's rejection of GANE's pro-posed contention 1, but fails to adequately brief the issue.
GANE paraphrases the contention, asserts that the Board dismissed the contention "on the grounds that Intervenor had failed to prove its point," and claims that the burden was on Applicants
"/
2 The paraphrasing Applicants failed to of this contention in GANE's Brief, that assess the potential releases . . ." is cubtly different. Compare GANE Brief at 2-3.
i "to prove they have met the requirem,ents cited in this conten-tion." GANE Brief at 2-3. GANE offers no citation to any of the partinent pleadings, to the transcript of the Prehearing Confer-once, or to the Licensing Board's Memorandum and Order ruling on the proposed contention. GANE offers no meaningful discussion of the arguments of the parties or of the Board's ruling. There is 1
i no discussion of and citation to applicable NRC precedent gov-
- erning the admission of contentions. GANE's brief is fatally i
vcgue.
- -The insufficiency of GANE's brief aside, there is no merit L
to GANE's conclusory assertion that the Licensing Board micapplied some burden. The Licensing Board did not reject GANE i
, contention 1 on the ground that "Intervenor had failed to prove j ito point," but rather on the grounds that the proposed conten-tion was vague, lacked any specific basis, and therefore did not 1
j comply with the requirements of 10 C.F.R. $ 2.714(b). LBP-84-35, 20 N.R.C. at 912 (1984). As Applicants had argued, GANE's
, Contention 1 did not address Applicants' estimates and assess-3 m3nts in the pertinent licensing documents. CANE alleged that J
j 1
Applicants had not adequately or correctly assessed radiological impacts, but did not specify which estimate or assessment was in i
i error or why. Applicants' Response to GANE and CPG Supplements L
i to Petitions for Leave to Intervene (May 7, 1984) (hereinafter ;
{ roferred to as " Applicants' May 7, 1984 Response") at 10-18. [
- t j i 1
l 1
Accord NRC Staff Response to Supplements to Petition for Leave to Intervene and Requests for Hearing Filed by Georgians Against Nuclear Energy and Campaign for a Prosperous Georgia (hereinafter referred to as "NRC Staff's May 14, 1984 Response") (May 14, 1984) at 4. Even when provided the opportunity during the Prehearing Conference to provide basis and specificity for the contention, GANE could only respond "it just seems there are [ra-diation] levels that are in question." Tr. 101 (Feig), quoted in LBP-84-35, 20 N.R.C. at 912.
These vague allegations were insufficient. They did not identify "with clarity and precision" the arguments being advanced against Applicants. See Wolf Creek, supra, ALAB-279, 1 N.R.C. at 576. They did not address the pertinent licensing documents and evaluations of radiological impacts, and they did not place Applicants on notice of any alleged deficiencies in such evaluations. The contention provided no basis to suppose
! that any particular radiological evaluation was in error. The Licensing Board therefore correctly rejected the contention for its failure to comply with 10 C.F.R. $ 2.714(b).
l
- l 1
II. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 2, AND THERE ARE NO GROUNDS FOR REVERSAL GANE's Contention 2 alleged that Applicants had not assessed the cumulative effect of Plant Vogtle and the Savannah River Plant. The Licensing Board rejected this contention for its failure to satisfy requisite standards of pleading (discussed
,cbove) and for its focus on the Savannah River Plant to the ex-clusion of Plant Vogtle. See LBP-84-35, 20 N.R.C. at 914.
4 GANE appeals the Licensing Board's rejection of GANE Contention 2, but again fails to adequately brief the issue. See GANE Brief at 3. GANE devotes only four sentences in its brief to this issue. There is not one citation to the record. There is no discussion of applicable legal standards. There is no dis-cussion of the arguments of the parties. GANE does refer to the Licensing Board's ruling, but (as discussed below) its character-ization of the Board's ruling is incomplete. In sum, GANE's briefing of this issue is neither supported nor meaningful.
What little argument GANE does make lacks merit. GANE ig-nores the arguments of the parties opposing the admission of Contention 2 and does not fully address the Licensing Board's ruling.
] Applicants and the NRC Staff opposed Ccntention 2 on the grounds it lacked basis and specificity. Applicants' May 7, 1984 4
l f
l l
- - . - - - - , , _ , , - _ - - - , - . , - - - - - - - . . - - . . - . - - - - - - - - - _ - . , , -m--.--------.e.- v ---v --- r,-----
.e-+--- .
R2sponse at 22-26; NRC Staff's May 14, 1984 Response at 5-6; NRC Staff Response to . . . an Untitled Filing Regarding GANE's Amended Basis for GANE Contention 2 (June 27, 1984) at 3-5; Applicants' Response to GANE's Amendment to GANE Contention Number 2 (June 28, 1984). Applicants pointed out that both Applicants and the NRC Staff had evaluated at the construction parmit stage the cumulative effects of Plant Vogtle, the Savannah River Plant, and other nearby facilities, and had found the cumu-lative effects insignificant. Applicants' May 7, 1984 Response at 21, 22. Applicants further observed that the scope of review ct the operating license stage does not require reevaluation of environmental matters considered before the construction permit was issued unless there are sufficiently changed circumstances.
Id. at 19. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 N.R.C. 587, 590-91 (1985)
(admission of an environmental contention must be tied to changes or new information that has come to light since the issuance of the construction permit; an operating license proceeding is not intended to provide a forum for the reconsideration of matters originally within the scope of the construction permit proceed-ing). See also Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 N.R.C. 1423, 1459, 1461 (1982), citing Calvert Cliff's Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1128 (D.C. Cir. 1971). Moreover, the Commission's regulations 3/ only require assessment of such 3/ See 10 C.F.R. $ 51.23(c) (1984); 10 C.F.R. 5 51.75 (1986).
l
cumulative impacts "as may reasonably appear significant."
Applicants' May 7, 1984 Response at 22. GANE did not provide a b sis to suppose that prior assessments were no longer valid or that significant cumulative effects might occur. Id. at 21-24.
The only supposedly new information offered by GANE in s'up-port of further assessment of cumulative effects was the proposed restart of the L-Reactor at the Savannah River Plant. However, CANE did not attempt to show that because of the releases from the L-Reactor, the effects attributable to Vogtle would be sig-nificant. Without such a showing, cumulative effects need not be evaluated. Id. at 23, citing Westside Properties Owners v'.
Schlesinger, 597 F.2d 1214, 1217 (9th Cir. 1979). See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 cnd 2), ALAB-785, 20 N.R.C. 848, 873-74 (1984). In addition, Applicants pointed out that the cumulative effects of the i
L-Reactor and Vogtle were fully evaluated by the Department of I Energy in its environmental impact statement for the L-Reactor.
4 Id. NEPA does not require federal agencies to conduct j duplicative evaluations. Id., citing Kleppe v. Sierra Club, 427
! U.S. 390, 415 n.26 (1976). GANE did not explain why the NRC should duplicate the DOE evaluation. Nor did GANE, even after l
being permitted to amend its basis for Contention 2 to address the L-Reactor EIS,4/ refer to information or conclusions in the 4/ GANE amended the basis for Contention 2 in an untitled pleading filed on June 14, 1984, which the Licensing Board subse-( quently accepted. See LBP-84-35, 20 N.R.C. at 914 n.3.
f i 4 i
L-Reactor EIS that would cast doubt ,on the Applicants' and the NRC Staff's prior assessments of cumulative effects. See Appli-cents' Response to GANE's Amendment to GANE Contention Number 2 (June 28, 1984) at 7. The radionuclide releases from the Savan-nnh River Plant projected in the L-Reactor EIS were very close to end generally smaller than those considered in the NRC's con-struction permit stage FES. Id.
GANE now asserts that the Licensing Board " rule [d] this Con-tantion inadmissible due to the Board's lack of jurisdiction over D&partment of Energy facilities." GANE Brief at 3. This asser-tion takes the Licensing Board's ruling out of context. The Li-cnnsing Board found GANE's amended statement of basis to be vague end unsupportive. LBP-84-35, 20 N.R.C. at 914. As the Licensing Board explained, the amended statement of basis failed to address in meaningful terms the incremental impact of Vogtle and did not attempt to show how or why Applicants' assessment of SRP releases was in error or needed to be reexamined. Id. GANE's discussion of Contention 2 was focused on the Savannah River Plant to the exclusion of Vogtle -- so'much so that it appeared to the Licens-ing Board that GANE in reality wanted to litigate the acceptabil-ity of Savannah River Plant opertion, over which the Licensing Board observed it had no authority. See id.
III. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 4, AND THERE ARE NO" GROUNDS FOR REVERSAL GANE appeals the Licensing Board's rejection of GANE's Contention 4. GANE's proposed Contention 4 claimed that Appli-cents had underestimated the environmental effects of electromag-notic radiation from transmission lines. The Licensing Board re-
- jacted this contention because it lacked an adequate basis.
LBP-84-35, 20 N.R.C. at 915-16.
GANE characterizes this ruling as " preposterous," presumably on the ground that "Intervenor provided extensive documentation of its concerns in this area. . . ." GANE Brief at 4. Once more, GANE has inadequately briefed its claim of error. GANE's Brief contains no meaningful discussion of the arguments of the parties, of the Licensing Board's ruling, or of the standards for cdmissibility of contentions, and contains not a single citation to the record. There is no discussion of the " documentation" to which GANE refers or explanation why GANE believes it provided an adcquate basis.
In point of fact, GANE did not " provide . . . documentation" to support its contention. GANE's statement of basis did contain esveral references, but the Licensing Board found that none of those references provided a substantive basis for the contention.
LBP-84-35, 20 N.R.C. at 916.
l
For example, GANE referred to an unpublished paper by Kcrl Z. Morgan, presented in Congressional hearings in 1978.
This paper, however, was a discussion of ionizing radiation, not of non-ionizing radiation such as electromagnetic fields. With respect to non-ionizing radiation, Morgan merely cautioned, as a passing note, that there may be effects of which we are unaware.
See Applicants' May 7, 1984 Response at 29-30 and Attachment 1 (Dr. Morgan's paper).
Similarly. GANE referred to testimony of a "Dr. Moreno" (ac-tually "Marino") before the New York Public Service Commission.
According to GANE, Dr. Marino had recommended a ceiling on trans-mission line fields to avoid subjecting people to " involuntary
. . . experimentation." GANE April 11, 1984 Supplement at 10.
This statement does not indicate that health effects would in fact occur. Moreover, this same testimony was considered by the Susquehanna Licensing Board, which concluded that no evidence ex-ists to date that the operation of 500 kv power lines will have an adverse biological effect on humans. Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2),
LBP-82-30, 15 N.R.C. 771, 790-93, 830-34 (1982). See Applicants' May 7, 1984 Response at 29.
GANE also referred to an alleged finding by Robert Helliwell of Stanford University that " electromagnetic radiation from the Canadian power system was being injected into the earth's
=,
mcgnetic' ducts." GANE then hypothes,ized that the interaction of this radiation with electrons will produce X-rays, which in turn will produce ultraviolet light, which in turn will produce skin cancer.5/ GANE did not identify any source for this allegation,
- but it apparently related to a series of letters between Dr.
Halliwell and Dr. Marino, appended to the Marino testimony in the Naw York Public Service Commission proceeding. However, in these letters, Dr. Helliwell stated that he did not believe that sig-nificant X-rays or ultraviolet radiation would be produced from
- power line radiation into the magnetosphere. Dr. Helliwell con-cluded "that the introduction of power lines capable of radiating high harmonics [necessary for power line radiation into the mag-1 notosphere] should not alter the average intensity of any radia-tion that might reach the surface of the earth." Dr. Helliwell
- continued, I see no reason to be concerned about the effects on our environment of power line radiation that enters the magne-tosphere." Applicants' May 7, 1984 Response at 31-32 and Attach-4 1
1 mont 2 (Dr. Helliwell's letter).
5/ GANE made no attempt to quantify and provided no basis for its absurd hypothesis that Vogtle transmission lines will in-crease ultraviolet radiation and increase the incidence of skin concer. The environmental evaluation required by NEPA is subject
! to a rule of reason. Scientists' Institute for Public
- Information, Inc. v. AEC, 481 F.2d 1079, 1091-92 (D.C. Cir.
1973). It does not require an assessment of remote, speculative consequences. NRDC v. Morton, 458 F.2d 827, 837-38 (D.C. Cir.
1972), cited in Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C. 2069, 2085 (1982).
i i
r cey e e- --r- --w -
., ,,s. ,,-,e,-.-,---wr- -.ere-,-e,- -==--*r-. --v+-~-.r- *-----+--w. - - . - - - , - - - -
As is evident, these statements do not support GANE's con-tantion that effects due to the electromagnetic radiation from transmission lines have been underestimated. Furthermore, GANE made no attempt to address Applicants' environmental reports, which considered the effects of transmission lines. See id. at
- 28. Accord LBP-84-35, 20 N.R.C. at 916. Accordingly, the Li-censing Board properly rejected GANE's proposed Contention 4.
IV. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 5, AND THERE ARE NO GROUNDS FOR REVERSAL GANE's proposed Contention 5 alleged that Applicants had not properly assessed and considered the geology of the Vogtle site, in light of new data made available by the U.S. Geological Sur-vay. In their discussion of this contention, GANE referred to the "Millett Fault," and stated, " Petitioner disputes applicant's claim that the fault is not capable." GANE April 11, 1984 Sup-plement at 12. The Licensing Board rejected this aspect of the contention on the ground that GANE failed to provide an adequate basis for the contention. LBP-84-35, 20 N.R.C. at 896.
GANE claims that the Licensing Board " dismissed considera-tion of the Millett Fault 'on the grounds that its existence is only speculative, and that the extent of overlying, undisturbed sadiments provides reason for not considering it to be a capable fault.'" Id. at 4-5. The language GANE quotes is the Licensing
Board's summary of Applicants' and the NRC Staff's arguments.
The Licensing Board rejected consideration of the Millett Fault on the grounds that "GANE offered no basis in support of its al-legation that the Millett Fault exists, is capable and should be considered." LBP-84-35, 20 N.R.C. at 896. The record amply sup-ports this ruling.
As discussed in Applicants' May 7, 1984 Response at 33-35, the possible existence of the Millett Fault was fully evaluated by Applicants and this evaluation was described in the Vogtle FSAR. The Millett Fault had been postulated by Faye and Prowell of the U.S. Geological Survey in 1982 on the basis of groundwater and other indirect indications. See FSAR, 6 2.5.1.2.4.1. Appli-cants promptly made further studies to determine whether this postulated fault existed, but found no evidence of its existence l
within the depths to which the investigation extended. FSAR, 55 2.5.1.2.3.1, 2.5.2.3. Furthermore, even if the Millett Fault did exist at a depth below which Applicants' investigation ex-tanded, Applicants determined it could not be capable by virtue of the age of the undisturbed overlying sediments. FSAR, S 2.5.1.2.3.1.
The NRC Staff had endorsed Applicants' studies and conclu-sions. Applicants' May 7, 1984 Response at 34, citing NRC Staff Review of Vogtle Report " Studies of Postulated Millett Fault" (March 16, 1983). In the same vein, at the prehearing n n - - - ~ --m,.
- - - - - s----,,w-- ,r-,- - - - - - - - ..,
conference, the representative of CP,G (the other proponent of this contention) reported that he had met with one of the USGS co-authors of the original report postulating the existence of the Millett Fault and had been informed that Applicants' and the NRC Staff's conclusions had been verified, that the Millett Fault probably did not exist, and if it did exist it was not a capable fEult. Tr. 13 (Johnson). In addition, a report by USGS (euthored by Prowell) that was released after Applicants' studies had been made available to the USGS did not include the Millett in a listing of faults in the eastern United States. Applicants' May 7, 1984 at 34-35, citing Prowell, "Index of Faults of Cretaceous and Cenozoic Age in the Eastern United States," USGS Map MF-1289 (1983).
GANE stated that it disputed Applicants' conclusions regard-ing the postulated Millett Fault, but gave absolutely no basis for its dispute. GANE's unsupported skepticism did not consti-tute a basis. The only basis for postulating the existence of such a fault in the first place, a USGS Report, was repudiated by tha author. GANE made no attempt to address Applicants' exten-cive assessment, which was fully discussed in the FSAR, and gave no hint at why it contended the assessment was in error.
In support of its allegation that Applicants had not proper-ly addressed the geology of the Vogtle site, GANE also referred to the 18d6 Charleston Earthquake and asserted that "ever if Applicant is correct that the Millett Earthquake Fault is not ca-pcble . . . the area is of a similar geology to Charleston and therefore poses a risk of a devastating earthquake, perhaps as high as XII on the Mercalli scale." GANE April 11, 1984 Supple-munt at 13. As a separate ruling, the Licensing Board rejected this aspect of Contention 5 for its failure to satisfy NRC plead-ing requirements. Memorandum and Order (Sept. 12, 1985).
GANE appeals this ruling, but does not explain why it be-lieves the Licensing Board supposedly erred. See GANE Brief at 5-6. GANE's Brief contains no meaningful discussion of the argu-msnts of the parties, of the Licensing Board's ruling, or of the standards governing admissibility of contentions, and no explana-tion why it believes it met those standards. By such deficient briefing, GANE has waived its claim of error.
Prescinding from the inadequacy of GANE's Brief, Applicants further submit that the Licensing Board correctly rejected the portion of Contention 5 that pertained to the Charleston Earth-quake. Despite repeated opportunities to perfect the contention, GANE did not challenge Applicants' compliance with applicable regulatory requirements. Furthermore, under NRC precedent, GANE's sole reference in support of its concern -- a November 18, 1982 U.S. Geological Survey letter stating the "no geologic structure or feature can be identified unequivocally as the source of the 1886 Charleston earthquake" -- provided no basis for reevaluating the Vogtle seismic design basis.
. _ , _ . - _. ._. _ _ . _ .. . _ . _ . . ~
10 C.F.R. Part 100, Appendix A provides the regulatory requirements against which the Vogtle seismic design must be judged. In their May 7, 1984 Response, Applicants described their treatment of the Charleston Earthquake, as fully discussed in the FSAR, in order to illustrate how their compliance with 10 C.F.R. Part 100, Appendix A was ignored and unchallenged by the GANE and CPG. Applicants pointed out that they had fully ana-lyzed the significance of the 1886 Charleston earthquake and had used it to derive their safe shutdown and operating basis earth-quake. Applicants' May 7, 1984 Response at 35-36, citing FSAR
$$ 2.5(c), 2.5.2.3 - 2.5.2.7. Applicants also observed that GANE hed provided no support for its assertion that the geology of the Vogtle site is similar to the geology of the Charleston area.
Id. at 36-37. The NRC Staff similarly opposed proposed Contention 5 as lacking specific basis. NRC Staff's May 14, 1984 Response at 10-11.
By letter dated July 12, 1984, the Licensing Board requested that the parties address the significance of NUREG/CR-3756, which contained the preliminary results of a probabilistic study con-ducted for the NRC by the Lawrence Livermore National Laboratory in response to the November 18, 1982 USGS letter. GANE did not respond to the Licensing Board's letter.
On July 23, 1984, the NRC Staff submitted its response. The NRC Staff maintained that proposed Contention 5 lacked basis, but l
proposed deferring the contention until after issuance of the Vogtle SER. CPG submitted " Response to Licensing Board Inquiry Concerning Seismic Contention" on July 27, 1984. CPG argued that NUREG/CR-3756 constituted " substantial new information requiring a reevaluation of the seismic qualifications. . . ." Applicants responded to the Board's request by letter dated July 27, 1984.
Applicants again pointed out that their compliance with 10 C.F.R. Part 100, Appendix A, was ignored and unchallenged by GANE and CPG. Applicants also pointed out that the probabilistic results of NUREG/CR-3756, althopgh still preliminary, indicated that Vogtle's design basis 1s less likely to be exceeded than the esismic design bases of seven of the other nine sites studied.
In its prehearing conference order, the Licensing Board granted GANE and CPG thirty days after issuance of the SER in which to amend their contention. The Board stated that absent the filing of an amendment, the Board would rule on proposed Contention 5. LBP-84-35, 20 N.R.C. at 896-97.
On July 2, 1985, the NRC provided copies of the Vogtle SER to Applicants and to GANE and CPG (then Joint Intervenors). The NRC Staff concluded that Applicants had satisfied the require-mants of 10 C.F.R. Part 100, Appendix A. SER at 2-38. The NRC Steff also addressed in section 2.5.2.4 the most recent (April 1985) results of the probabilistic study conducted by the Lawrence Livermore National Laboratory. When uniform hazard
cpectra for various return periods are compared with the Vogtle safe shutdown earthquake spectrum, the probability of the Vogtle cafe shutdown earthquake being exceeded is about 10 ~4 per year.
The Vogtle seismic hazard estimates fall in the middle of the cites studied. The Staff therefore concluded that the Vogtle site does not have a perceptively higher hazard than the other test sites. SER at 2-47. See Letter fr. B. Churchill to ASLB (Aug. 20, 1985).
GANE ma,de no attempt to amend its proposed contention to address the Livermore Study or the SER. Thus, in the final anal-ysis, the only basis for GANE's contention was the November 1982 USGS letter. This letter does not have particular applicability or significance to Plant Vogtle; nor did GANE's contention relate the USGS letter to Applicants' seismic analyses or compliance with 10 C.F.R. Part 100, Appendix A. GANE provided no basis for its assertion that the geology of Plant Vogtle is similar to the gsology of the Charleston area. NRC precedent holds that the in-formation in the November 1982 USGS letter does not provide a basis for re-examining a ' site suitability determination made at the construction permit stage. South Carolina Electric & Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1), ALAB-710, 17 N.R.C.
25, 26-27 (1983).
On the basis of these considerations, the Licensing Board rejected GANE's Contention 5 as it pertained to the Charleston l
Earthquake. Memorandum and Order (Sept. 12, 1985). The Licens-ing Board ruled that GANE had ignored the seismic evaluation in Applicants' FSAR, had not challenged Applicants' compliance with 10 C.F.R. Part 100, Appendix A, and had not commented upon, much less challenged, the NRC Staff's seismic and geologic evaluation of the Vogtle site presented in the SER. Id. at 3. The Licens-ing Board found that GANE had failed to establish a basis for its contention. Applicants submit that these conclusions are unassailable.
V. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 6, AND THERE ARE NO GROUNDS FOR REVERSAL GANE's proposed Contention 6 alleged that Applicants cannot guarantee the safe operation of the reactor for the life of the plant due to unresolved questions of thermal shock effects on ir-radiated reactor vessels. GANE April 11, 1984 Supplement at 13.
The Licensing Board rejected this contention on the grounds that it lacked a sufficiently particularized basis. LBP-84-35, 20 N.R.C. at 898.
GANE appeals the rejection of this contention and argues that the Licensing Board ignored portions of its filing. GANE Brief at 6. GANE refers to four statements, only three of which ware made in GANE's original pleading. GANE did not allege, as cacerted in its brief, that " Applicants do not consider the con-founding (sic) effect of operator error." See GANE April 11,
1984 Supplement at 13-14. With respect to the other statements, GANE provides no discussion of their import, of the arguments of the parties, of the standards for admitting contentions, or of the ruling of the Licensing Board. For this reason alone, GANE's cppeal of the rejection of Contention 6 should be denied.
Had GANE discussed the arguments of the parties and the standards of admissibility, it would have been readily apparent that the contention was properly rejected. At the time the con-tantion was advanced, this issue was a generic issue,6/
Unresolved Safety Issue (USI) A-49, " Pressurized Thermal Shock."
Ste NUREG-0E06, " Unresolved Safety Issues Summary" (Vol. 6, No.
1, Feb. 17, 1984) at 42. It was the subject cf an NRC Task Ac-tion Plan. See NUREG-0649, " Task Action Plans for Unresolved Safety Issues Related to Nuclear Power Plants" (Feb. 1980). An
" Unresolved Safety Issue" may be raised in a licensing proceed-ing. However, the mere identification of an Unresolved Safety Issue is not a sufficient contention. A petitioner who wishes to litigate an Unresolved Safety Issue must establish a nexus be-tween the license application and the task action plan by showing both:
6/ The Commission has since published a final rule (10 C.F.R.
, 50.61) governing pressurized thermal shock. See 50 Fed. Reg.
29,937 (1985).
4
(1) that the undertaken or contemplated project has safety significance insofar as the reactor under review is con-cerned, and (2) that the fashion in which the applica-tion deals with the matter in question is unsatisfactory, that because of the failure to consider a particular item there has been insufficient assessment of a specific type of risk for the reac-tor, or that the short-term solution offered in the application to a problem under Staff study is inadequate.
Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
ALAB-444, 6 N.R.C. 760, 773 (1977).
GANE made no attempt to demonstrate the significance of USI A-49 to Vogtle. Instead, it discussed the Rancho Seco reactor, end its passing reference to operator response pertained to a model of pressurized thermal shock at Rancho Seco. GANE April 11, 1984 Supplement at 13-14. GANE mentioned that Appli-cents had described the copper and phosphorous levels in the re-cctor vessel (FSAR, 5 5.3.3), but did not allege that these lev-cls would have an adverse effect.
In response to the proposed contention, Applicants described the information in the FSAR -- none of which GANE had addressed
-- to illustrate GANE's failure to relate its concern to Plant Vogtle. Applicants' May 7, 1984 Response at 40. As indicated in the FSAR, the effect of fluence and copper content are factored into the Technical Specification pressure-temperature limits for
the reactor vessel. Id., citing FSA,R, 5 5.3.2. Applicants, in demonstrating compliance with 10 C.F.R. Part 50, Appendices G and H, considered the copper, nickel, and phosphorous content of the raactor vessel components in their calculations of end-of-life reference nil ductility temperatures. The calculated end-of-life reference nil ductility temperatures are significantly less than those at which operation of the plant would not be permitted under NRC criteria. Special core designs were not used in the calculations demonstrating acceptable end-of-life reference nil ductility temperatures and are therefore not necessary. Id.,
citing FSAR, Q251.1. Similarly, Applicants pointed out that GANE hid not addressed the design of the Vogtle reactor vessels, de-scribed in the FSAR, S 5.3.3.1; nor had GANE addressed Appli-cants' Material Surveillance Program (FSAR, 5 5.3.1.6). Id.
GANE also made no attempt to address the second prong of the River Bend test. GANE did not address the Vogtle applications, did not specify a " type of risk" that had not been assessed, and did not address Applicants' solutions to the issue. Id. Appli-cants and the NRC Staff opposed the admission of this contention for its lack of basis. Id. at 41; NRC Staff's May 14, 1984 Re-sponse at 11.
In rejecting proposed Contention 6, the Licensing Board agreed with Applicants' and the NRC Staff's arguments 1) that no specific basis exists for concern about pressurized thermal shock
effects on the Vogtle reactor vessel, 2) that GANE had failed to chow that Applicants' analyses of thermal shock are flawed, and
- 3) that GANE had failed to justify inclusion of this unresolved issue in the proceeding. LBP-84-35, 20 N.R.C. at 897-98. In particular, the Licensing Board determined that GANE's concern about the existence of copper and phosphorous in the reactor ves-col alloy was not shown to relate to accelerated embrittlement.
Id. at 898. Applicants submit these determinations were correct.
VI. THE LICENSING BOARD CORRECTLY DECIDED GANE'S CONTENTION 7, AND THERE ARE NO GROUNDS FOR REVERSAL Contention 7 was admitted by the Licensing Board, litigated, cnd resolved in Applicants' favor. The gravamen of the conten-tion as admitted was that an accidental spill of radioactive water at the site could result in radioactive contamination of the shallow, and possibly deeper, aquifers under Plant Vogtle.
LBP-84-35, 20 N.R.C. at 900. After discovery, Applicants moved for summary disposition of Contention 7. The Licensing Board i
granted in part and denied in part Applicants' motion and desig-ncted five issues for hearing. Memorandum and Order (Nov. 12, 1985), reconsideration denied, Memorandum and Order (Jan. 6, 1986).
Hearings on the five designated issues were held in March, 1986. Applicants presented a panel of geologists and hydrologists--Messrs. Crosby, Farrell, and West, and Dr.
Papadopulos. The NRC Staff presente,d a panel of two witnesses -
Mr. Gonzales (a hydrologist) and Dr. Heller (a geotechnical engi-nser). GANE presented one witness, Mr. Lawless, an assistant professor of mathematics at Payne College. The contention was thereafter resolved in Applicants' favor in the Licensing Board's August 27, 1986 Partial Initial Decision.
As the Licensing Board found in its Partial Initial Deci-sion, three aquifers occur under the Vogtle site, two of which are major. The lower major aquifer is called the Cretaceous equifer (sometimes referred to as the Tuscaloosa Aquifer). The upper major aquifer is called the Tertiary aquifer. Both these aquifers are confined under the Vogtle site by the Blue Bluff marl. In addition, groundwater also exists in shallow, discon-tinuous bodies referred to as the water-table aquifer. PID at 12-13.
The Blue Bluff marl is a densely consolidated, fine grained calcareous clay with subordinate lenses of dense, well indurated, wall cemented limestone. Id. at 19. It is generally about 60 feet thick under the power block area. An exception occurs under the auxiliary building where additional excavation to accommodate I ths building's foundation reduced the marl thickness to 35 feet.
Id. at 20-21. A conservative estimate of the permeability of the marl is about 10 ~7 cm/sec. Id. at 23. The marl is therefore an offective barrier than would protect the underlying aquifers from I
contamination should an accidental spill occur. Id. at 38.
i on Appeal, GANE asserts, "It was indisputably clear in the ,
hearing that the Applicants had provided a route for contamina-tion of the [Tuscaloosa] Aquifer by drilling wells through the merl beneath the site and into the aquifer." GANE Brief at 7.7/ ;
This was a thesis advanced by GANE's witness, Mr. Lawless. GANE i proceeds to argue that the Licensing Board should have afforded !
l more weight to Mr. Lawless' testimony on this point and less f
- waight to the testimony of Applicants' witnesses. Id. at 7-9.
j Under the standard of review employed by the Appeal Board, a l
Licensing Board's factual findings will not be disturbed if they are supported by the record and the evidence does not compel a different result. Pacific Gas and Electric Co. (Diablo Canyon i
Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 N.R.C. 819, 834 4
(1984). As discussed below, the record not only supports the Li-
{ censing Board's decision, but does so overwhelmingly.
1 Applicants first addressed Mr. Lawless' thesis (that explor-l atory holes drilled through marl might constitute a pathway for
- contaminants) in Applicants' motion for summary disposition.
i Applicants identified the penetrations of the marl and averred to l
their grouting. Applicants further described the method by which these penetrations were grouted -- the tremie method. The tremie 7/ There were many other sub-issues decided by the Licensing Board in Applicants' favor. Since GANE does not appeal any of i these other issues, Applicants do not discuss them in this brief.
l 1
l
. _ _ . . _ . . _ _ - - . - ._ _ _ _ _ . , . . _ _ . _ _ _ , _ _ _ . _ . . . _ _ . _ . . _ . _ _ _ _ . , _ . _ _ . _2
I mathod is performed by inserting a s, mall diameter pipe to near t
the bottom of the hole and pumping cement slurry filling the hole from the bottom up. This method assures that the hole is com- ,
- pletely grouted and no voids are present. Affidavit of Thomas W.
Crosby, Clifford R. Farrell, and L. R. West (July 8, 1985) at 32-34, attached to Applicants' Motion For Summary Disposition of Joint Intervenors' Contention 7 (July 15, 1985). In support of Applicants' motion, the NRC Staff further attested to the officacy of the tremie method. Affidavit of Gary B. Staley (August 9, 1985) at 7-8, attached to NRC Staff Response to Appli-i cants' Motion for Summary Disposition of Contention 7 (August 9, i
1985). Mr. Lawless attempted to disparage these averments as an "edvertisement" but otherwise did not contest them. See Interve-nor's Response to Applicants' Motion for Summary Disposition of I Contention 7 (August 9, 1985) at 6. The Licensing Board found that the Joint Intervenors had failed to provide any basis to
) dispute the efficacy of the tremie method, and on the basis of the affidavits provided by Applicants and the NRC Staff, it found the tremie method adequate. The Licensing Board ruled that no ganuine issue of fact existed and dismissed the allegation that i
- walls might act as a pathway for contaminants. Memorandum and I-l Order (Nov. 12, 1985) at 21-23.
l l
In a document submitted as written testimony at the March 1986 hearings, Mr. Lawless alleged for the first time that i
i
-,-e -,,----en--,-,,,s- ,--wm,,-----< +we-r,--ws, e--r ,-r,, -,-w--e,,--,----,--,ww,,---,e>,,m,
--v
grouted wells are "likely" less comp,ressible in a vertical direc-tion than the marl, and that plant settlement would therefore punch these grouted wells downward at a rate that "might be dif-forent" for the marl. Mr. Lawless then speculated that "it is possible" that the bottom of the grouted wells "may" separate and core out of the bottom of the marl, and "if so" the integrity of the marl would be diminished. W. Lawless, " Analysis of Atomic Safety and Licensing Board's November 12, 1985 Memorandum and Order (Ruling on Motion for Summary Disposition of Contention 7 ra: Groundwater Contamination)," ff. Tr. 720, at 7-8.
Applicants moved to strike this testimony as vague, specula-tive, and irrelevant to the issues before the Licensing Board (Eddressing instead an issue already decided in Applicants' fcvor). Applicants' Motion to Strike Testimony of William Law-less on Contention 7 (March 5, 1986) at 3-4, 8. The Licensing Board, stating "[i]t is unclear whether this is new matter or just what the Intervenor is proposing," generously permitted this testimony to remain. Tr. 713. Applicants therefore addressed this new allegation both by cross-examining Mr. Lawless and by presenting rebuttal testimony. On cross-examination, Mr. Lawless admitted that he did not know the compressibility either of the merl or of the grout. Tr. 747-48 (Lawless). Furthermore, Mr.
Lawless admitted he had no information that slippage between grouted wells and the marl has occurred, and had no knowledge of
the extent of settlement at VEGP. Tr. 746-751 (Lawless). In contrast, Applicants' witness, Mr. Crosby, testified that the mnr1 is actually more rigid than the grout columns, not vice varsa as Mr. Lawless had posited. Tr. 792 (Crosby). Mr. Crosby further testified that there are a number of reasons why there would not be differential movement between the marl and grout columns. First, there is a very large surface area around the outside of the core hole and more than sufficient friction to prevent differential movement. Tr. 793 (Crosby). The overburden on the marl produces a constrictive force, and the bond between the marl and the grout is very tight. In addition, the core hole curface is very irregular, adding to the frictional resistance. ,
Tr. 793-94 (Crosby). Finally, the strata underlying the marl are as dense as or denser than the marl, and therefore would not per- ,
mit a grout column to punch downward. Tr. 793 (Crosby).
Applicants also testified that settlement is now essentially complete, and this testimony was corroborated by the NRC Staff.
Tr. 794 (Crosby); Tr. 776-77 (Heller). The consistently main-tained 55-foot difference'in the hydraulic head (energy poten-tial) between the water-table aquifer and the confined aquifers dsmonstrates that marl remains a barrier to groundwater flow.
Tr. 795 (Crosby); Crosby et al., ff. Tr. 253, at 16. This testi-mony belied Mr. Lawless' hypothesis that settlement may have cre-etcd pathways for groundwater flow across the marl. Finally, t
f 5
Applicants' witnesses testified that,even if differential move-ment between the marl and the grout were to occur, the pressure on the marl due to its overburden would close off any space that might develop. Tr. 794 (Crosby); Tr. 804-05 (Papadopulos).
While recognizing that this matter was not an issue of mate-rial fact designated for hearing (see PID at 36), the Licensing Board nevertheless fully addressed the issue and the testimony in its decision. See PID at 36-38. Based on the evidence above, the Board found that grout columns will not move at a different rate than the marl and pose no risk to its integrity. Id. at 38.
In view of the Licensing Board's discussion of the evidence at peges 36-38 of the decision, GANE's assertion that "the Board's ruling has absolutely no basis in evidence" is remarkable.
GANE now challenges the Licensing Board's decision on the grounds that Applicants' witnesses admitted under cross-examination that they had testified on matters in which they were not expert." GANE Brief at 7, citing " Transcript of March 14."
Tha qualifications of Applicants' witnesses were appended to thair written testimony and demonstrate their competency as ex-part witnesses. Although GANE provides no precise reference, it l is apparently referring to a response by Applicants' witness Mr.
Crosby indicating that he was not an expert on the extent of set- 1 ticment. See Tr. 799. Mr. Crosby, however, is a qualified geol-ogist and is well able to testify to the properties of subsurface
i materials. With regard to the extent of settlement, the matter
, was addressed and resolved during summary disposition on the basis of expert averment. Memorandum and Order (Nov. 12, 1985) at 10-11. Therein, the Board found that settlement has nearly I
ceased and that net settlement has amounted to less than an inch.g/ Id. at 11. Furthermore, consistent testimony was given at the hearing by Dr. Heller (Tr. 776-77), who is a geotechnical
} expert in soil and foundation engineering.
i i GANE also takes exception to the Licensing Board's view of
! Mr. Lawless' qualifications -- in particular, that Mr. Lawless' qualifications are in the area of mathematics. GANE Brief at l 7-8. GANE claims the record states that Mr. Lawless' degree is j in engineering, that Mr. Lawless' training is in nuclear waste i
management, that Mr. Lawless has extensive experience in ground-water analysis, and that the Licensing Board is intentionally misrepresenting the evidence. Id. These claims are not sup-ported by the evidentiary record. A statement of Mr. Lawless' qualifications was not provided with Mr. Lawless' testimony. The t
record does not reveal that Mr. Lawless' degree is in engineer-ing, only that he is an assistant professor of mathematics. Tr.
I j
g/ The Board's Memorandum and Order made its finding based on the undisputed Affidavit of Walter R. Ferris (Sept. 7, 1985).
~Mr. Ferris is an expert on settlement. Facts that are not con-
, troverted during summary disposition are deemed admitted. 10 i
C.F.R. l 2.749(a).
1 i
i l
1
- - . - _ _ . - _ _ , . , _ _ , , . . _ . _ _ _ , , , _ , . , - , . . - _ _ - - - - , , , , , , , , , . - , . . ~
_ ._.-,_m., .-.,,-,.,,m_..__m_-. .
719. The record does not describe M,r. Lawless' " training" in
" nuclear waste management;" it describes no courses, classes, or other instruction Mr. Lawless may have received. It merely re-vaals he was once a project engineer at the Savannah River Plant.
Sne Tr. 722-23. The record does not show that Mr. Lawless has extensive experience in groundwater analysis. Instead, the rccord shows that Mr. Lawless is not a geologist or a hydrologist end has not studied hydrology. Tr. 721-22 (Lawless). He, him-calf, has done no research in these fields, although he has re-viewed other people's work. Tr. 722-28.
Finally, GANE disputes the Licensing Board's characteriza-tion of Mr. Lawless' testimony as speculative. GANE Brief at 8.
The summary of the testimony above, however, demonstrates the 1
epeculative nature of Mr. Lawless' testimony. GANE ignores the clearly speculative language used by Mr. Lawless (i.e., "might ba," "it is possible," "may," "if so" -- See Lawless "Analy-sin. . . ", ff. Tr. 720, at 7-8) and resorts to extra-record ma-terial concerning wells at the Savannah River Plant to bolster Mr. Lawless' suggestions. GANE Brief at 8-9. The experiences at the Savannah River Plant were not discussed at the hearing,9/ and 1
9/ Experiences at the Savannah River Plant were addressed dur-ing summary disposition. Those experiences were found to have little relevance to Plant Vogtle. See Affidavit of Thomas W.
Crosby, Clifford R. Farrell, and L.R. West (July 8, 1985) at 28-32, attached to Applicants' Motion for Summary Disposition of
- (Continued Next Page) l l
1 I
i
extra-record material cannot be used to bolster an appellant's case on appeal. Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C. 1167, 1177 n.29 (1983).
Accordingly, all of GANE's claims pertaining to Contention 7 lack merit. GANE's appeal of this contention must be denied.
VII. THE LICENSING BOARD CORRECTLY RESOLVED CONTENTION 8 ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL Contention 8 alleged deficiencies in a number of areas of Applicants' quality assurance (QA) program. This contention was correctly resolved in Applicants' favor by summary disposition.
Memorandum and Order (Oct. 3, 1985). The standards governing summary disposition are discussed at pages 8-10 above.
GANE's appeal of the Licensing Board's decision regarding Contention 8 is nothing more than the recasting of vague, untime-ly, and unsubstantiated allegations of dubious relevance to the contention. GANE's brief does not assert that the Licensing Board made any error as a matter of law with respect to this contention. As discussed below, no error was committed.
(Continued)
Joint Intervenors' Contention 7 (July 15, 1985); Affidavit of Gary B. Staley (August 9, 1985) at 10-11, attached to NRC Staff Response to Applicants' Motion for Summary Disposition of Contention 7 (August 9, 1985); Memorandum and Order (Nov. 12, 1985), at 17-21.
As admitted by the Licensing Board, Contention 8 alleged:
Applicants have not and will not implement a Quality Assurance program for Plant Vogtle for welding, for properly. documenting the placement of concrete, for adequately testing concrete, for the preparation of correct con-crete quality test records, for procuring ma-terial and equipment that meet applicable standards, for protecting equipment and for taking corrective action as required, so as l to adequately provide for the safe func-tioning of diverse structures, systems and components, as required by 10 C.F.R. Part 50, Appendix B, such that reasonable assurance exists that the operation of the facility will not endanger the public health and safe-ty.
Memorandum and Order (Nov. 5, 1984) at 8-9. As a basis for this contention, GANE cited several inspection reports and a number of Applicants' QA files. See GANE April 11, 1984 Supplement at 16-21. See Applicants' May 7, 1984 Response at 46-63 and Attach-ments 3-28 (providing these documents and discussing them more fully). In addition, at the Prehearing Conference, GANE indi-cated that it was constantly receiving information, including in-formation from people at the Vogtle site, and hinted at further charges to come. Tr. 50 (Teper).
After this contention was admitted and pursuant to the stip-ulation entered into by the parties, GANE and CPG (then Joint In-tervenors) had 120 days in which to conduct written discovery, followed by an additional 30 days during which to take deposi- '
tions. In response to Joint Intervenors' document requests,
Applice.nts assembled approximately 2,8,000 pages of documents and made them available to Joint Intervenors. These documents were available to Joint Intervenors for more than four months. In ad-dition, in response to forty-seven interrogatories and thirty-one data requests, Applicants prepared answers encompassing sixty-three pages of information.
Discovery undertaken by Applicants to determine the exact nature of Joint Intervenors' allegations was largely unsuccessful. Joint Intervenors responded to most of Applicants' interrogatories by incorporating by reference the statement of basis for Contention 8, by indicating that Joint Intervenors had not yet reviewed the documents produced by Applicants, and by promising further response once that review was complete. See generally CPG /GANE's Response to Applicants' Second Set of Inter-rogatories and Request for Production of Documents (Feb. 4, 1985); Joint Intervenors' Response to Applicants' Fourth Set of Interrogatories and Request to Produce (April 17, 1985). Joint Intervenors did not supplement their responses.
Applicants were particularly frustrated in their attempts to learn whether Joint Intervenors had undisclosed "whistleblower" allegations which Joint Intervenors intended to use in the prose-cution of their contention. With respect to Applicants' inquiry into communications with and possible concerns expressed by s
Vogtle workers, Joint Intervenors at first objected on grounds of 1
privacy. CPG /GANE's Response To Applicants Second Set Of Inter-rogatories and Request For Production Of Documents (Feb. 4, 1985) at 20-21. Subsequently, to avoid a motion to compel, Joint In-tervenors agreed to either provide information on any worker al-legations they intended to use in the proceeding or file a motion for protective order with regard to that information. Deposition of D. Teper (April 26, 1985) at 251-57. Joint Intervenors did neither.
After the close of discovery, Applicants moved for summary disposition of the contention. Applicants' Motion For Summary Disposition Of Joint Intervenors' Contention 8 (June 24, 1985).
In their motion, Applicants demonstrated that an effective quali-ty assurance program had been implemented which addressed the five areas identified in Joint Intervenors' contention. Appli-cants demonstrated that quality of construction is ensured at VEGP by a comprehensive assurance effort including the initial design and construction procedures; a programmatic system of Quality Control inspections and tests; and Quality Assurance De-partment audit, review, and surveillance programs. The effec-tiveness of these programs was further demonstrated by the pilot Readiness Review Program, which serves as an overlay to these other programs. See generally id.
Applicants addressed each of the documents or occurrences to which Joint Intervenors had referred in the statement of basis N
J_ _ _ _ - _ - _ . -. _ _ _
for the contention or during discovery. Some of the sources of information which Joint Intervenors had relied upon as the bases for their allegations were deficiencies found by Applicants' own QA program and incidents or concerns of workers already identi-j fled and thoroughly investigated by Applicants. Another source ,
relied upon by Joint Intervenors was deficiencies noted many ysars ago during Atomic Energy Commission inspections atiVEGP '
prior to the performance of any safety-related work. These old daficiencies had been corrected, in part, by the implementation i of the same Quality Assurance program challenged by Joint fnter-vanors. The third and final source of information relied upon by s x x
. Joint Intervenors with regard to Contention 8 consisted of iso-s, lated and minor deficiencies noted during routine NRC inspec s tions. Applicants showed that none cf those occurrences sg-( ,
u s
(
- gasted anything more than minor construction problems which are inevitably found in any project even remotely approaching in mag- '
s i s nitude and complexity of a nuclear power plant. See id. at \
29-77. Significantly,Applicantsshowedthatithkdneverre-
. coived a severity Level I, II, or III NRC violation, nor had there been any indication of a programmatic or system-wide prob .-
r lem that could have an adverse effect on VEGP. Id. at 78. The-Commission had in fact cited VEGP as one of the two or thr^ee bast-managed nuclear projects in twenty years. Id. at 15-19. ;
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The NRC Staff supported Applicants' motion. NRC Staff Re-cponse to Applicants' Motion for Summary Disposition of Contention 8 (Aug. 5, 1985). The NRC Staff submitted the affida-e vits of nine NRC inspectors and the Region II Project Branch Chief who attested to the overall effectiveness of the Vogtle quality assurance program. See id.
Joint Intervenors responded to Applicants' motion, but their response was unsupported and conclusory. See Joint Intervenors' Rasponse to Applicants' Motion for Summary Disposition of Inter-venors' Contention 8 (July 31, 1985). Joint Intervenors did lit- I tle more than quote portions of the statement of basis for Contention 8, which they asserted satisfied their burden of going forward, and argue that the summary disposition process was some-how unfairly depriving them of their hearing rights. Joint In-tarvenors' response was made entirely out of whole cloth, hinting at evidence to come, contacts with Vogtle workers, and the en-listment of the Government Accountability Project, but offering not one jot, tittle, or whit of factual detail. See id.
Prompted by Joint Intervenors' hints, Applicants twice more rsquested that Joint Intervenors inform them of any new allega-tions, not only for purposes of the hearing, but also so that any significant safety concern could be resolved. Letter fr. J.
Joiner to L. Fowler (Aug. 8, 1985); Letter fr. L. Glenn to T.
Johnson (Aug. 19, 1985). See Letter fr. J. Joiner to ASLB (Sept. 4, 1985). Joint Intervenors did not respond.
By Order of October 3, 1985, th,e Licensing Board disposed of Joint Intervenors' quality assurance contention. The Licensing Bonrd found Applicants' motion to be correct, complete, and sup-ported by appropriately qualified affiants. The Licensing Board obIerved that it was " clear that the QAP not only meets the for-mal requirements of Appendix B but also functions in accordance with the intent of Appendix B." Memorandum and Order (Oct. 3, 1985) at 6. The Licensing Board further emphasized:
Joint Intervenors offer nothing substantive and specific beyond the discrepant situations dealt with by Applicants, which they do not controvert; nor do they offer anything spe-cific and probative in support of their alle-1 gation that the QAP is not working.
Id. at 7. The Licensing Board found the NRC Staff's position that Applicants had competently responded to discrepant situa-tions and that Applicants' overall QA program is effective to be convincingly supported. Id. at 8. Accordingly, the Board con-cluded there was no outstanding issue of material fact.
Several weeks later, Joint Intervenors moved for reconsider-ation. Joint Intervenors' Motion For Reconsideration (Oct. 28, 1985). In pertinent part, this motion was but one more effort vaguely hinting at revelations which would come if a public forum was provided. Id. at 4, 11-12. Joint Intervenors claimed that there were whistleblowers prepared to come forward, and appended to their motion an affidavit from Government Accountability
, l i
Project representative Billie Garde. However, the Garde affida-vit only stated that an undisclosed number of workers had been contacted and that some information " general in nature" had been obtained. Neither the motion nor the affidavit presented any probative factual information; and there was no showing that any of the undisclosed information in Ms. Garde's possession was rel-cvant and material to the specific quality assurance matters in-volved in Contention 8.
Both Applicants and the NRC Staff opposed Joint Intervenors' motion. Applicants' Response to Joint Intervenors' Motion for R2 consideration of the Board's Memorandum and Order on Summary Disposition of Contention 8 (Nov. 12, 1985); NRC Staff Response to Intervenors' Motion for Reconsideration of Order Granting Sum-mary Disposition of Contention 8 (Nov. 18, 1985). Both pointed out that Joint Intervenors had provided no grounds for and not a ecintilla of evidence to support reconsideration of the summary disposition of Contention 8.
The Licensing Board denied Joint Intervenors' motion for reconsideration. Memorandum and Order (Dec. 3, 1985). The Li-C6nsing Board ruled that Joint Intervenors' motion did not pro-vide an adequate basis for the relief sought insofar as it basi-cally followed the same approach already found to be insufficient in opposing summary disposition. Id. at 5.
Although not set out precisely, GANE's principal argument on appeal is apparent -- that the Licensing Board should have denied Applicants' motion for summary disposition in order to hear Joint Intervenors' whistleblower complaints.10/ GANE, however, 10/' GANE also states that Joint Intervenors' October 28, 1985 motion for reconsideration is " incorporated by reference into this appeal." GANE Brief at 13. This practice constitutes inad-equate briefing. Kansas Gas & Electric Co. (Wolf Creek
, Gsnerating Station, Unit No. 1), ALAB-424, 6 N.R.C. 122, 126-27 i
(1977); Public Service Electric and Gas Co. (Hope Creek
. Gsnerating Station, Units 1 and 2), ALAB-394, 5 N.R.C. 769, 770 (1977). In any event, Joint Intervenors' arguments in their mo-
! tion for reconsideration have been addressed and found wanting.
Applicants' Response to Joint Intervenors' Motion for Reconsider-
- stion (Nov. 12, 1985); NRC Staff Response to Intervenors' Motion i for Reconsideration of Order Granting Summary Disposition of Contention 8 (Nov. 18, 1985); Memprandum and Order (Dec. 3, 1985). Joint Intervenors argued that the Licensing Board should not have considered the Readiness Review Program, which Joint In-tervenors viewed as an improper substitute for the Vogtle QA pro-gram. The Licensing Board responded that Applicants' Readiness Rsview Program was not a substitute for the QA program but rather 1
an overlay instituted as the result of NRC interest, and that it ;
had found Applicants' QA program adequate separate and apart from '
I the Readiness Review Program. Memorandum and Order (Dec. 3,
, 1985) at 7. Joint Intervenors argued that there remained materi- '
al facts in controversy and alleged several deficiencies not pre-
! viously raised. The Licensing Board found that " Joint Interve-i nors provided no probative information as to the alleged j deficiencies or how they related to the contention," that the al-legations presented "no grounds . . . for altering (its] prior datermination," and that under 10 C.F.R. 5 2.749(b) "a party opposing a supported motion may not rest upon mere allega-tions. . . ." Id. at 8, 10, 11. Finally, Joint Intervenors moved for a continuance to obtain further information to oppose Applicants' motion. The Licensing Board stated, It is noted that the request for continuance '
, is made wholly without regard to timeli-l ness. . . . Joint Intervenors first proposed l Contention 8 in April 1984. They had the
- unfettered opportunity to investigate the j (Continued Next Page)
_ . _ _ . . ~ ,-- ,..-._ _ ,,_ _ ._ _ -
provides no meaningful discussion. ,Its brief ignores entirely the standards governing summary disposition and the obligations inherent in the opposition of summary disposition. The brief offers no cognizable grounds to reverse the Licensing Board's de-cision.
Instead, GANE now simply recasts its claim that there are whistleblowers who should be heard; but in doing so, GANE makes casertions that are not supported by the record and were not prasented to the Licensing Board. At page 12 of its brief, GANE rofers to several problems that whistleblowers have allegedly de-scribed. Not one of these concerns was revealed to the Licensing Board. Such new assertions cannot be used to bolster one's case on appeal. Tennessee Valley Authority (Hartsville Plant, Units lA, 2A, 1B, and 2B), ALAB-463, 7 N.R.C. 341, 348 (1978). Fur-thormore, the principal concern (uneven settlement) is not rele-vant to any of the particular topics to which Contention 8 was limited. Nor is there anything but the baldest and sketchiest of suggestions that a real concern exists.
(Continued) subject from that time. . . . No good reason has been given why the investigation has not been completed.
Id. at 16. The Licensing Board denied the motion as untimely and unjustified. Id. Thus, the arguments in Joint Intervenors' October 28, 1985 motion for reconsideration provide no grounds for reversing the summary disposition of Contention 8.
i I
In fine, GANE's appeal of Contention 8 presents a case of unparalleled inaction on the part of Joint Intervenors. Joint Intervenors had in excess of two years to investigate the quality ecsurance program of VEGP and to develop evidence to support their challenge of its effectiveness. They did not. Any serious cnd genuine interest in safety could have been satisfied through raising these issues either before the Licensing Board, through the internal VEGP Quality Concerns mechanism, or directly to the NRC. Joint Intervenors raised no such issues. Neither this Ap-paal Board, the Licensing Board, nor Applicants is required to .
wait for the convenience of an intervenor to choose to gather and cubmit evidence.
The Licensing Board correctly granted summary disposition of Contention 8 in the instant proceeding. Overwhelming evidence cupported its decision. Applicants' motion for summary disposi-tion was accompanied by a statement of material facts as to which there is no genuine dispute, by ten supporting affidavits from appropriately qualified affiants, and by thirty-seven exhibits.
The NRC Staff similarly presented evidential material (ten affi-dnvits) demonstrating the absence of any material issue of fact.
Applicants and the NRC staff not only addressed each allegation mede by Joint Intervenors, but also demonstrated the overall effectiveness of the Vogtle QA program. As discussed at pages 9-10 above, faced with a properly supported and complete l
l
motion, Joint Intervenors could not , rest on mere allegations or dsnials. Their response to Applicants' motion was therefore pat-sntly inadequate. In the absence of meaningful rebuttal by Joint Intervenors, summary disposition was mandated as a matter of law.
VIII. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 9, AND THERE ARE NO GROUNDS FOR REVERSAL Contention 9 alleged that Applicants had not adequately de-scribed in the PSAR and FSAR a novel design feature (the removal of pipe whip restraints). The purported basis for this conten-
, tion was that the modeling and empirical justification for the dasign feature were not publicly available. GANE April 11, 1984 Supplement at 21-22. The information sought, which was propri-etary, was subsequently provided to GANE and CPG, each of whom in roturn agreed that within 30 days it would either amend or with-draw its contention. See Tr. 71. After receiving the propri-etary information, CPG informed the Licensing Board that it was withdrawing the contention. Letter fr. L. Fowler to ASLB (July 26, 1984). GANE remained silent. The Licensing Board con-strued GANE's silence as a withdrawal of the contention.
LBP-84-35, 20 N.R.C. at 902-03. GANE did not object or disagree.
Having informed the Licensing Board that it would either amend or withdraw the contention, not having amended the contention, and having remained silent for over two years, GANE should not now be a
parmitted to claim its intention was misunderstood.11/ GANE's cppeal of Contention 9 should therefore be denied.
IX. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 10.2, AND THERE ARE NO GROUNDS FOR REVERSAL Contention 10.2 alleged that Applicants had failed to con-cider synergistic effects during environmental qualification.12/
GANE did not identify any particular equipment, but in support of the contention, GANE referred to a SANDIA study of synergistic offects in polyethylene and polyvinyl chloride insulation on ccble.
Applicants responded to this subcontention by observing that 10 C.F.R. 5 50.49(e)(7) requires consideration of synergistic ef-facts only "when these effects are believed to have a significant 11/ If GANE believed its intent was misunderstood, it should have promptly notified the Licensing Board. A party must make a reasonable effort to have an error corrected, "not hoard it for use as a ground for reversal in the event it does not like the ultimate decision on the merits." Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-459, 7 N.R.C. 179, 189 (1978).
See also Duke Power Co. (Ca-tcwba Nuclear Station, Units 1 and 2), ALAB-355, 4 N.R.C. 397, 411 n.46 (1976).
12/ GANE originally submitted a very general Contention 10 al-loging that Applicants had not properly qualified their equip-mant. See GANE April 11, 1984 Supplement at 23. In order to re-spond to this broad contention, Applicants parsed the statement of basis into eleven subcontentions. Applicants' May 7, 1984 Re-sponse at 66-72. At the prehearing conference, GANE and CPG agreed to approach the contention on the basis of the eleven cubcontentions outlined in Applicants' response. Tr. 78.
w--
offect on equipment performance." A,pplicants referred the Li-ccnsing Board's attention to Applicants' FSAR, which indicates that synergistic effects, having been identified in cable, are considered in Applicants' qualification program for cable.
Applicants' May 7, 1984 Response at 67-68. Applicants pointed out that GANE had identified no equipment for which synergism chould be but is not considered, and therefore asserted that contention 10.2 lacked both basis and specificity. Id. The Li-cnnsing Board agreed. LBP-84-35, 20 N.R.C. at 904.
GANE appeals this ruling, but does not explain why it be-lieves the Licensing Board erred. The brief contains no meaning-ful argument, reference, or citation. It is not amenable to re-cponse and should be rejected.
X. THE LICENSING BOARD CORRECTLY RESOLVED GANE'S CONTENTION 10.3 ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL Contention 10.3 alleged that environmental qualification testing of cable in single conductor configuration may not be rcpresentative of cable in multiconductor configurations. The Licensing Board resolved this contention in Applicants' favor on summary disposition. Memorandum and Order (Aug. 21, 1985). GANE cppeals.
Applicants' motion for summary disposition was supported by cn affidavit of an expert witness demonstrating the acceptability i
i l
l
of single conductor cable testing for the environmental qualifi-cation of the particular multiconductor cables used at VEGP.
Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 10.3 (July 1, 1985). GANE's contention was based on Sendia studies. As Applicants demonstrated, Sandia found cable with only one type of jacketing that performed worse in a multi-conductor configuration, and that type of jacketing is not used in safety related cable at VEGP. Conversely, in Sandia tests, cable with jacketing material used at VEGP showed no greater deg-redation when tested in a multiconductor configuration. See id.
The NRC Staff supported the motion. NRC Staff Response to Appli-cants' Motion for Summary Disposition of Contention 10.3 (July 26, 1985). Joint Intervenors did not respond.
The Licensing Board reviewed the motion and NRC Staff's re-cponse, found the motion properly supported, found no geniune issue of material fact, and granted the motion. Memorandum and Order (Aug. 21, 1985). GANE's Brief provides no basis for reversing this ruling. It does not explain what error the Li-consing Board supposedly committed. Its appeal is thus deficient and should be summarily denied.
Furthermore, having failed to argue for the denial of the motion before the Licensing Board, GANE is no longer entitled to appeal. The Appeal Board has held that it will not consider issues and arguments that could have been, but were not, raised i
bafore the Licensing Board. Public Service Electric and Gas Co.
(Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 N.R.C.
43, 49 (1981); Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-648, 14 N.R.C. 34, 37 (1981);
Tannessee Valley Authority (Hartsville Plant, Unit lA, 2A, 1B, end 2B), ALAB-463, 7 N.R.C. 341, 348 (1978). "Failing either to raise satisfactorily a particular factual issue or . . . to express himself in the prescribed manner regarding how that issue should be resolved, [an intervenor] is scarcely in a position, legally or equitable, to protest the determinations made by the Board in connection with it." Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 A.E.C. 857, 864 (1974). If GANE thought a particular factual issue remained in controversy, it should have identified the issue and provided evidential support, but GANE did not do so.
If GANE thought that Applicants' motion was unsupported or incom-plate, it should have so advised the Licensing Board. Having not reised such grounds before the Licensing Board, GANE cannot now advance them on appeal and thus has no factual or legal basis for cppeal.
i XI. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 10.6, THERE ARE NO G' ROUNDS FOR APPEAL, AND THE RECORD SHOULD NOT BE REOPENED.
Contention 10.6 alleged that Limitorque motor operators were not qualified against steam spray and was based on I&E Notice 81-29. As part of negotiations to settle this contention, Appli-cents provided to CPG an affidavit stating that new motors had bsen designed, successfully qualified for a high temperature steam environment, and ordered as replacement for the unqualified motor operators. Affidavit of William C. Ramsey (June 26, 1984) at 2. CPG committed to review this information and within 30 dnys either to withdraw the contention or to inform Applicants that it intended to pursue the issue, and GANE agreed to follow cuit. Tr. 76-77. By letter dated July 26, 1984, CPG withdrew Contention 10.6. GANE remained silent. In view of CPG withdraw-al, GANE's silence, and the mootness of the issue, the Licensing Board denied admission of the contention. LBP-84-35, 20 N.R.C.
i at 905.
- GANE's Brief does not claim the Licensing Board erred, but instead refers to several I&E Notices issued after the Licensing Board's ruling. GANE asserts that " consideration of subcontention 10.6 should be reopened." GANE Brief at 17-18.
Since GANE does not claim that the Licensing Board erred and since an appeal cannot be based on arguments and information not 59-
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presented to the Licensing Board below,13/ GANE's argument presents no grounds for appeal. Applicants therefore construe GANE's arguments as a motion to reopen the record. If it is in-d2ed such a motion, it is deficient. It does not comport with rcquirements regarding form and content of motions. 10 C.F.R. 5 2.730(b); Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 cnd 3), ALAB-457, 7 N.R.C. 70, 71 (1978). It does not demon-otrate that the standards governing the reopening of the record have been satisfied. 10 C.F.R. 5 2.734(a). See, e.g., Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),
ALAB-753, 18 N.R.C. 1321, 1324 (1983). It is not accompanied by offidavits as required by 10 C.F.R. 5 2.734(b). Furthermore, cince GANE is seeking to reopen the record to address a conten-tion not previously admitted in the proceeding, GANE should have cleo fulfilled the late contention criteria. 10 C.F.R. 5 2.734(d); Waterford, supra, ALAB-753, 18 N.R.C. at 1325 n.3.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-39, 16 N.R.C. 1712, 1714-15 (1982);
Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-50, 18 N.R.C. 242, 246 (1983). GANE, as the proponent of its motion, 13/ Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-648, 14 N.R.C. 34, 37 (1981); Washington Public Power Supply System (WPPSS Nuclear Project No. 3),
ALAB-747, 18 N.R.C. 1167, 1177 n.29 (1983); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-582, 11 N.R.C. 239, 242 (1980).
hns the burden of persuasion, and it,is a heavy burden. 10 C.F.R. $ 2.732; Waterford, supra, ALAB-753, 18 N.R.C. at 1324.
GANE has not even addressed, let alone fulfilled, these criteria.
Accordingly, its motion must be denied.14/
XII. THE LICENSING BOARD CORRECTLY RESOLVED GANE'S
- CONTENTION 10.7 ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL In its Memorandum and Order ruling on proposed contentions, the Licensing Board admitted as Contention 10.7 two questions partaining to the environmental qualification of the hydrogen recombiners to be used at Plant Vogtle. LBP-84-35, 20 N.R.C. at 905-06. After discovery, Applicants moved for summary disposi-tion of this contention and supported their motion by affidavit of competent witnesses. Applicants' Motion for Summary Disposi-l tion of Joint Intervenors' Contention 10.7 (July 18, 1985). The NRC Staff supported Applicants' motion. Staff's Response to Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 10.7 (Aug. 30, 1985). GANE and CPG (Joint Interve-nors) did not respond. The Licensing Board reviewed the motion, 14/ While Applicants do not have the burden of persuasion, Applicants note that GANE's motion is not timely and does not cddreso a significant safety issue that might affect the outcome of the licensing proceeding. All of the I&E Notices to which GANE refers predate the Licensing Board's Partial Initial Deci-cion, and all but one are at least 10 months old. Furthermore, as the attached affidavit of Robert M. Bellamy demonstrates, thase I&E Notices raise no significant or unresolved issue.
i
found the motion complete and suppor,ted by qualified affiants, datermined that no issue of fact existed, and granted the motion.
M;morandum and Order (Nov. 5, 1985).
GANE's appeal of this contention should be denied for three raasons. First, GANE did not oppose Applicants' motion for sum-mary disposition and cannot now for the first time on appeal raise arguments or objections not advanced below. See discussion at pages 57-58 supra. GANE, by its inaction, has waived this issue.
Second, GANE has inadequately briefed its claim of error.
GANE's brief contains no discussion of the record, no citations, cnd no meaningful discussion of the Licensing Board's ruling.
Third, the one substantive statement GANE makes -- "the pro-duction model has never been tested" -- is irrelevant or inaccu-rate, depending on how one construes this vague statement. If GANE means that the actual unit installed at Plant Vogtle has not baan tested, the assertion is irrelevant. Contention 10.7 cddressed environmental qualification, which is performed on test models,15/ and does not address pre-service inspection or tsoting. If on the other hand GANE means that the hydrogen 15/ Obviously, one cannot perform environmental qualification tasting on the actual unit to be installed at a plant, since this testing is designed to degrade equipment to near its end of life condition.
i i
rccombiners used at Plant Vogtle have not been environmentally qualified, GANE simply ignores the evidentiary information sup-porting Applicants' motion for summary disposition and the Li-cansing Board's decision. The record in this proceeding demon-strates that the hydrogen recombiners used at Plant Vogtle have bsen properly qualified by tests on a production model of the rscombination unit, by tests on components of the recombination unit mounted on a small scale frame, and by tests of individual components.
XIII. THE LICENSING BOARD CORRECTLY REJECTED GANE'S CONTENTION 10.9, AND THERE ARE NO GROUNDS FOR REVERSAL GANE's proposed Contention 10.9 alleged that Applicants had not used suitable seismic qualifications of safety related equip-mant, because margins of safety had allegedly been reduced by changes in design criteria and qualification methods. GANE re-forred to NUREG-0606, " Unresolved Safety Issues Summary" (Aug.
20, 1982). Although GANE did not identify which unresolved safe-ty issue was the purported basis for this contention, it was clear that GANE was referring to USI A-46, " Seismic Qualification of Equipment in Operating Plants," which requires an assessment
- of cperating plants in order to determine whether backfitting is necessary. See GANE April 11, 1984 Supplement at 26-27.
Applicants responded that Vogtle is not an operating plant, '
but ather one under construction to which current standards l 1
cpply. Applicants argued that GANE ,did not allege, much less 4
provide a basis for concluding, that Vogtle does not meet current j standards. Applicants' May 7, 1984 Response at 71. Accord, NRC 1 Staff Supplemental Response to CPG /GANE Contentions (June 20, 1984) at 6. The Licensing Board agreed, ruled that Contention l 10.9 lacked an adequate basis, and denied admission of the con-1 l tsntion. LBP-84-35, 20 N.R.C. at 907.
I
- GANE appeals this ruling, but does not explain why the Li-censing Board supposedly erred. See GANE Brief at 19. GANE does j not discuss the Licensing Board's reasoning or ruling, and does not point to any misapplication of law or fact. GANE's Brief is thus deficient and offers no ground to reverse the Licensing Board's ruling, which was patently correct.
l l XIV. THE LICENSING BOARD CORRECTLY REJECTED STRESS-CORROSION CRACKING AS A SUB-ISSUE OF GANE'S
, CONTENTION 11, AND THERE ARE NO GROUNDS FOR REVERSAL
{ GANE's Contention 11, as amended, alleged that Applicants htd failed to consider defects in the Vogtle steam generator sys-tam. See Tr. 83 (where GANE adopted the rewording of Contention 11 as proposed in CPG Amendment to Supplement to Peti-tion for Leave to Intervene and Request for Hearing (May 25, i 1984)). As a basis for this allegation, GANE referred to -
NUREG-0606, " Unresolved Safety Issue Summary" (August 20, 1982).
f GANE April 11, 1984 Supplement at 28.
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4
- - - - , ,-.,n _ --- .-..--,--.nn. -, ,- - - - , - - _ - - , _ _ , . , , , , , - , - - - _ , , n.,---, , --------~-n--,-.-
As discussed above at pages 31-32 above, a petitioner who wishes to raise an " Unresolved Safety Issue" in a licensing pro-creding must show that the particular issue has safety signifi-cance to the reactor under review, and that the fashion in which the application deals with the matter in question is unsatisfac-tory. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 N.R.C. 760, 773 (1977). To show that GANE had not satisfied this standard, Applicants referred the Licensing Board to pertinent portions of the FSAR describing the design features employed at Vogtle to prevent or mitigate the phenomena to which GANE was referring. Stress corrosion cracking was one such phenomena.16/ See Applicants' May 7, 1984 Response at 75-76.
The Licensing Board found that the Vogtle FSAR described cpecific measures to protect against stress corrosion cracking, and that GANE had not indicated in what specific manner any of the measures adopted by Applicants were inadequate. Accordingly, tha Licensing Board did not admit stress-corrosion cracking as a subissue of Contention 11. LBP-84-35, 20 N.R.C. at 908.
16/ There were other phenomena pertaining to this contention, two of which (water-hammer and vibration induced fatigue cracking) were admitted as Contention 11 and resolved in summary disposition. See Memorandum and Order (Sept. 3, 1965). GANE has not appealed the Licensing Board's rulings on phenomena other then stress corrosion cracking, and those rulings are therefore not discussed further in this brief.
l t 1 1
GANE now asserts, without citat, ion, that "Intervenors presented evidence showing clearly that stress corrosion cracking is a serious problem." Applicants know of no such evidence.
GANE claims that the Licensing Board erred, but does not explain what the error might be. GANE offers no justification for its fcilure to satisfy the River Bend standards for pleading an Unresolved Safety Issue -- in particular its failure to show that the fashion in which the application deals with the issue in question is unsatisfactory. GANE's brief provides no meaningful argument. It is too vague to respond to and provides no grounds for reversing the Licensing Board's ruling.
XV. THE LICENSING BOARD CORRECTLY RESOLVED EMERGENCY PLANNING CONTENTIONS ON
SUMMARY
DISPOSITION, AND THERE ARE NO GROUNDS FOR REVERSAL GANE states that after accepting emergency planning conten-tions, the Licensing Board dismissed these contentions at various times. GANE Brief at 20. GANE " appeals the Board's rulings."
Id.
GANE not only fails to allege any error, but also fails to idsntify the particular rulings it wishes to appeal. Without incue or error having been identified, GANE's briefing of emer-gancy response contentions is not susceptible to response or res-olution. GANE's appeal of emergency planning contentions should bn rejected for inadequate briefing.
l
= . . _
GANE's appeal of emergency planning contentions should also ba dismissed on grounds of waiver. GANE's reference to the Li-csnsing Board's dismissal of admitted contentions at various times is presumably an allusion to the summary disposition of GANE's contentions. GANE, however, did not oppose or otherwise raspond to any of the motions for summary disposition of emergen-cy planning contentions. GANE cannot now raise as grounds for appeal arguments or objections not advanced before the Licensing Board. Having failed to inform the Licensing Board why summary disposition of any particular emergency planning contention should not be granted, GANE has forfeited its right to appeal.
See discussion at pages 57-58 supra.
Moreover, GANE implicitly asserts that -- as a matter of law 1
-- an intervenor has an absolute right to an evidentiary hearing on its admitted contentions. That position cannot be sustained.
1 I
[A] proper contention only gains an interve-nor admission to a licensing proceeding.
Admission as a party to a Commission proceed-ing . . . does not preclude summary disposi-tion or guarantee a party a hearing on its contentions.
Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1),
ALAB-696, 16 N.R.C. 1245, 1258 n.15 (1982) (citations omitted).
GANE's default on summary disposition is thus fatal to its ap-psal.
XVI. THE LICENSING BOARD CORRECTLY RESOLVED GANE'S CONTENTION 14 ON
SUMMARY
DISPOS'ITION, AND THERE ARE NO GROUNDS FOR REVERSAL GANE's Contention 14 challenged the adequacy of the diesel g:nerators used at Plant Vogtle. After discovery, Applicants m:ved for summary disposition of this contention. Applicants' Motion for Summary Disposition of Contention 14 (July 31, 1985).
Applicants demonstrated that their participation in the Owners Group Program of independent design verification of components, inspections, and testing of diesel generator equipment at VEGP provides assurance that the diesels will perform reliably. Id.
Tho NRC Staff supported the motion. Staff's Response to Appli-cents' Motion for Summary Disposition of Joint Intervenors' Contention 14 (Sept. 23, 1985). Neither GANE nor CPG responded.
Tha Licensing Board found Applicants' motion complete and sup-ported by affidavits of qualified witnesses, and it granted the motion. Memorandum and Order (Nov. 25, 1985).
I GANE now appeals this ruling. GANE argues that the Licens-ing Board accepted Applicants' motion to dismiss "despite Inter-v:nors' clear demonstration (in their response to the motion for summary dismissal) that the problem has not been rectified."
GANE Brief at 21. GANE " incorporates by reference Intervenors' recponse to the Applicants' motion. . . ." Id.
i
No such response was filed. Applicants' motion was unopposed. GANE, by failing to advance before the Licensing Board grounds for denial of the motion, now has no cognizable basis for appeal. Furthermore, by incorporating by reference a non-existent document, GANE has left Applicants and the Appeal Board completely in the dark as to any basis for disagreement with the Licensing Board's decision.17/ Because GANE has waived its right to appeal by not opposing Applicants' motion before the Licensing Board, because GANE has failed to take issue with any aspect of the Licensing Board's decisions, and because the Li-ccnsing Board's decision is clearly supported by the record, GANE's appeal should be denied.
/
17/ Even if a GANE response to Applicants' motion for summary dieposition did exist, incorporating the response by reference would not satisfy GANE's obligation to brief issues adequately on cppeal. Kansas Gas and Electric Co. (Wolf Creek Generating Sta-tion, Unit No. 1), ALAB-424, 6 N.R.C. 122, 126-27 (1977); Public Sarvice Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 N.R.C. 769, 770 (1977).
l f
t CONCLUSION For all of the above-stated reasons, GANE's appeal should be d:nied in toto.
Respectfully submitted, 1
f
~
Br W WL 4hurcEIII, P.C.
.Y Delissa A. Ridgeway David R. Lewis l
Rose Ann C. Sullivan Shaw, Pittman, Potts &
Trowbridge i
James E. Joiner, P.C.
Charles W. Whitney John R. Molm Troutman, Sanders, Lockerman and Ashmore i
Counsel for Applicants Dated: November 14, 1986 i
r s
{
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