ML20215N284
| ML20215N284 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 10/31/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Eddleman W, Runkle J CONSERVATION COUNCIL OF NORTH CAROLINA, EDDLEMAN, W. |
| References | |
| CON-#486-1343 ALAB-852, OL, NUDOCS 8611050172 | |
| Download: ML20215N284 (28) | |
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' UNITED STATES OF AMERICA 0 , {C NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOAW NOV -3 A10:36 Administrative Judges: g4 ,
Thomas S. Moore, Chairman October $1, 1986 Howard A. Wilber (ALAB-852)
SERVED NOV 3 1986
)
In the Matter of )
)
CAROLINA POWER AND LIGHT COMPANY ) Docket No. 50-400 OL AND NORTH CAROLINA EASTERN )
MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear )
Power Plant) )
)
John Runkle, Chapel Hill, North Carolina (with whom Wells Eddleman (pro se) , Durham, North Carolina, was on the brief) for the intervenors Conservation Council of North Carolina and Wells Eddleman.
Thomas A. Baxter, Washington, D.C. (with whom Delissa A. Ridgway, Washington, D.C., and Richard E. Jones and Dale E. Hollar, Raleigh, North Carolina, were on the brief) for the applicants Carolina Power and Light Company, et al.
Charles A. Barth for the Nuclear Regulatory Commission staff.
DECISION We have before us the joint appeal of the Conservation Council of North Carolina (CCNC) and Wells Eddleman from the Licensing Board's concluding decision in this operating Dr. Reginald L. Gotchy resigned from the Appeal Panel October 1, 1986, and he is, therefore, no longer a member of the Board.
D 861031 kh0[g05000400 G
PDR OSo2-
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2 license proceeding.1 In that' decision, the Board resolved the last two. contested issues in the proceeding cohcerning drug use at the Shearon Harris construct' ion site and the efficacy of the applicants' emergency notification-procedures. Having decided these issues in favor of the applicants, the Licensing Board authorized the issuance of an operating license for the facility. For the reasons that follow, we affirm the Licensing Board's resolution of these two contested issues.
I.
The Licensing Board admitted for litigation CCNC's late-filed contention styled WB-3 (Drug Abuse During Construction). This contention alleged that " widespread" drug use at the Shearon Harris construction site has resulted in safety deficiencies at the plant.2 After an See LBP-86-ll, 23 NRC 294 (1986).
2 The contention, as. admitted, states:
Drug use at the Harris Plant is widespread (see the. attached newspaper article for details and basis). Employees under the influence of drugs are less able to follow proper procedures and tect specs for the installation of electrical systems, pipefitting, and other safety-related work.
Applicants' management has failed to control druc use during the construction and further, has failed'to reinspect all safety-related work done by known drug abusers.
See id. at 301; Memorandum and Order (Ruling on Contentions (Footnote Continuce) l
4-3 evidentiary hearing, the Licensing Board concluded that
"[d] rug use at the Shearon Harris construction site has not been ' widespread'"3 . In arriving at this determination, the Board considered a wide range of direct and indirect evidence on the extent of drug use at the. applicants'
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construction site. This evidence included (1) the statistics on numb'ers of employees terminated'for drug activity; (2) the results of an undercover police investigation of drug use at Shearon Harris; (3) the applicants' policies-and programs to detect and prevent drug activity at the site;-(4) direct observations of drug activity at the site; (5) the amount of drugs confiscated on site; and (6) the low rate of accidents at the site.4 After weighing this mass of evidence, the Board concluded that the extent of drug use at the Shearon Harris site has been, and remains, below five percent of the work force, and that this level of drug use could not be characterized as
" widespread."5 The Board then found that "[t]here is no evidence that any specific deficient work has been done or (Footnote Continued)
Concerning Diesel Generators, Drug Use and Harassment at the Harris Site) (March 13, 1985) at 5-8.
LBP-86-11, 23 NRC at 299.
4 See id. at 343-47.
Id. at 346-48.
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that any specific safety concerns exist at the Harris Plant because of drug use."6 This conclusion was_ based on, inter alia, the lack of evidence in the record of'any particular construction deficiencies and_the largely uncontradicted affirmative evidence establishing the adequacy of the applicants' quality assurance program.
Before us the~intervenors seek to challenge both of these major Licensing Board conclusions and numerous subsidiary factual findings. As in their previous appeals from the Licensing Board's. partial initial decisions, however, the intervenors' consolidated brief is grossly inadequate. The Board's findings on the drug abuse contention meticulously canvass the record evidence and cover over 60 published pages in the Commission's reports.8 In contrast, the intervenors' substantive challenge to the Board's findings comprises three and one-half pages of their brief and consists of little more than broad allegations that the Board erred, without any explanation of how or why its findings are incorrect. Indeed, the intervenors even disdain citations to the evidentiary record to support their Id. at 299.
Id. at 348-64.
8 See id. at 301-64.
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broadside attacks.9 As.we have repeatedly pointed out to the intervenors in their earlier appeals,10 a party's failure to brief an issue on appeal adequately "is tantamount to [its] abandonment."11 Nevertheless, even though we would be fully justified in treating the intervenors' appeal'n o this contention as abandoned, we have examined, as best we can, their bald assertions and find them to be without merit.
Initially, the intervenors complain about the Licensing Board's findings concerning the extent of drug use among workers at the Shearon Harris construction site. 'In this
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-regard, they assert generally that the Licensing Board erred in according undue weight to some evidence, while
" discount [ing]" other evidence.12 These allegations of error are easily answered. It is the Licensing Board's proper role to weigh and consider all the record evidence.
This is precisely what the Board did. It fully explained See 10 C.F.R. S 2.762 (d) (1) .
l 10 See ALAB-843, 24 NRC '(August 15, 1986)
(slip opinion at 2-5); ALAB-8377 23 NRC 525, 533-34, 542-43 n.57 (1986).
I Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 413, reconsideration denied, ALAB-359, 4 NRC 619 (1976). Accord Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and j 2) , ALAB-693, 16 NRC 952, 956-57 (1982).
I 12 Intervenors' Brief (June 9, 1986) at 3-6.
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its findings, including why some testimony was not persuasive, and all of its findings are amply supported by the record. The intervenors apparently disagree with the Licensing Board over how much weight some evidence should have been given, but they have failed to present us with anything establishing that the Board's judgment was 13 Moreover, it must be remembered that findings erroneous.
of fact will be overturned only where "we are convinced that the record compels a different result."14 Such is clearly not the case here.
Additionally, the intervenors claim that "[a] review of the entire record will show overwhelmingly-that drug abuse on site was widespread and is much higher than the 4.5%
found by the Board."15 Once again, they fail to provide us with any citations to the record that would support this broad allegation and we find none. As noted earlier, the
- Board based its conclusion on a diverse array of evidence, 1
13 Cf. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-303, 2 NRC 858, 866 (1975) ("the possibility that inconsistent or even contrary inferences could be drawn if the views of the appellants' experts were accepted does not prevent the trial board's findings from being supported by substantial evidence").
14 Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2) , ALAB-264, 1 NRC 347, 357 (1975). See ALAB-843, 24 NRC at (slip opinion at 14 n.38); ALAB-837, 23 NRC at 531.
15 Intervenors' Brief at 5.
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e 7
direct and indirect.16 The most direct evidence before the Board was the statistics on numbers of employees terminated for drug activity. The Board found that between January 1 and October 15, 1985, 163 employees were terminated for drug-related reacons.17 This yielded an average of seventeen terminations each month. Using this figure, the Board assumed that approximately 205 employees were terminated in 1985. With a total site work force of 6,000, and taking into account expert testimony that not all drug users would be detected, the Board estimated that 4% to 4.5%
of the workers in 1985 used drugs.18 It arrived at similar estimates for previous years.19 The intervenors have pointed to no reliable or persuasive evidence to undercut the Board's findings and we see no reason to question its O
figures. The Board also concluded that drug-use levels 16 See supra p. 3.
I See Tr. 8805-06; Applicants' Exh. 51, Chart II-3; Banks, et al., Tr. fol. 10,077, at 4-5.
18 Tr. 8967.
19 See LBP-86-11, 23 NRC at 343-45.
20 Indeed, it appears that the Board's conclusion is conservative because an employee may be terminated based on mere suspicion under the applicants' drug-control program.
See id. at 343 n.24; Hindman, et al., Tr. fol. 8893, at 11-177 Of the 218 terminations at Shearon Harris between 1979 and the time of the hearings, 77 were founded on
" suspicion, based on less than search or testing," and 48 (Footnote Continued)
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probably have not risen above that 4% to 4.5% figure, finding that drug use peaked in 1984-85 and that "[t]he combination of an undercover (police] operation (later widely publicized), large numbers of drug-related terminations, [use of] drug [ detecting) dogs, and a generally intensified antidrug program should have had a substantially chilling effect on drug use at the Harris site."21 We find this to be.an eminently reasonable conclusion.
The Board also was fully justified in relying on indirect evidence to support its finding on the extent of drug use at the site. Included among this evidence was the applicants' drug program consisting of:
(1) a clear policy on drug use which is communicated to all site employees; (2) supervisor drug awareness training and reliance on observations of supervisors to detect drug use; (3) security measures, including random and exiting searches, undercover investigations, searches of employees suspected of drug involvement, searches of employees' vehicles parked within the construction security fence, routino drug detection dog searches, and drug detection urinalysis tests for employees suspected of drug. involvement; and (4) a Quality Check program whereby employees can make their concerns (Footnote Continued) were founded on workers' refusals to submit to a urinalysis test or a search'of their person, property, or vehicle.
Id.; Applicants' Exh. 51, Chart II-3.
21 LBP-86-11, 23 NRC at 345.
9 known, anonymously if desired.22 The Licensing Board found this program.to be.
"well-implemented and tough."23 Similarly, the record evidence of'the small amount of drugs confiscated over time i at the site,24 the low rate of accidents at the site,25 and direct observations of site workers by applicants and NRC 26 personnel all reinforce the correctness of the Board's conclusion on illicit drug use, and we see no warrant for overturning these findings. In sum, our review of the record and the Board's decision reveals that the Licensing Board's findings and conclusions concerning this issue are thorough, balanced and convincing.
The intervenors next seem to assert that even if the Licensing Board's conclusion on the level of drug use among the Shearon Harris work force is accepted, this rate is l
i 22 Id. at 346. See Bensinger, et al., Tr. fol. 8326; Hindman, et al., Tr. fol. 8893, at 3-11; Mackonis and Mathias, Tr. Tol. 8993; Tr. 8330-33, 8381-86, 8410-16; Applicants' Exhs. 30-40.
23 LBP-86-11, 23 NRC at 346.
24 See Hindman, et al., Tr. fol. 8471, Attachment 5; Hindman, et al., Tr. Tol--8893, at 12, 16; Mackonis and Mathias, Tr. Tol. 8993, at 8-13; Tr. 8575, 8597-98, 8994-96, 9207-08..
25 Hindman, et al., Tr. fol. 8893, at 19-20.
- 6 Hindman, --et-- al., Tr. fol. 8893, at 16; Tr. 8755,
{ 8759-61, 8762-65.
10 still not " low enough" to ensure that drug use has not
-resulted in safety-threatening mistakes by site workers.27 As the Licensing Board realized, "the ' widespread' allegation in the contention implies.that such use has resulted in faulty work and safety concerns."28 The Board concluded, however, that such was not the case.
As with the Board's finding that the level of drug use was, and remains, low, its conclusion that drug use did not cause safety concerns is amply supported by the record.
.First, CCNC did not allege any specific construction deficiencies as' a result of worker drug use. In fact, as the Board pointed out, "the record is devoid of proof of any deficiency in construction caused by drug use." 9 Second, on the basis of expert testimony, the Board found'that errors committed by workers as a result of drug impairment would not differ in any material way from employee errors resulting from other causes, such as fatigue, mental illness, or conflicts with supervisors and coworkers. 0 27 Intervenors' Brief at 3.
28 LBP-86-11, 23 NRC at 347.
29 Id. at 348.
30 DuPont, Tr. fol. 9994, at 9-10, 12-14. Dr. DuPont is a clinical psychiatrist who was formerly Director of the National Institute of Drug Abuse and Chief White House Advisor on Drug Abuse. See id., Attachment 1; Tr. 9986.
11 Hence, it concluded "that routine supervisory practices and
[ quality assurance] measures will identify drug caused failures at about the same rate as other similar errors are identified."31 The intervenors have not challenged this conclusion.- The Licensing Board then found that the applicants' quality assurance program is " adequate to cope with the errors likely to be caused by employees involved in drug activity."32 This finding, in turn, was based largely on the Board's analysis of one. facet of the quality assurance program known as " attribute surveillance."33 Under th'e attribute surveillance program, the applicants reinspect quality attributes of samplings of safety-related components, with the sample size based on a widely accepted sampling plan, Military Standard 105-D.34 31 LBP-86-11, 23 NRC at 350.
32 Id. at 359.
33 The Board'noted that the applicants' quality assurance program had already been approved by the NRC staff.. Moreover, the intervenors did not present any basis l for questioning the efficacy of the program. Consequently, the Board-saw no need to review the applicants' entire quality assurance program. Id. at 355, 358.
34 See Banks and Parsons, Tr. fol. 10,077, Id. at 355.
at 21-237 In some cases 100% of an inspector's work was reinspected. See Frederickson and Prevatte, Tr. fol.
10,166, at 5. The attribute surveillance program was instituted in June 1984, and the Licensing Board found that the reinspection included samples of all the safety-related work done at Shearon Harris from the early phases of i (Footnote Continued)
12 The record establishes, and the Board found, that at the time of the hearing, approximately 3,100 of the more than 4,200. components selected had been reinspected. Out of a total of 54,560 attributes examined, only 269 were'foun'd to be deficient. By comparing the number of defective attributes to the total number of attributes reinspected, the Board arrived at an overall inspector effectiveness rate of 99.5%. No deficiencies with safety significance were found.35 Based on this evidence, the Board concluded that
"[t]he applicants' attribute surveillance program'is convincing evidence that the Shearon Harris overall quality assurance program is effective and has not been undermined by drug use."36 As the Licensing Board noted, all safety-related craft work performed by employees implicated in drug activity was inspected at least once.37 This circumstance, combined with the Board's finding that the applicants' 4
(Footnote Continued) construction with the exception of certain work that could not be reinspected, such as concrete placement. LBP-86-ll, 23 NRC at 356; Tr. 10,094-96.
35 Banks and Parsons, Tr. fol. 10,077, at 24, Attachments 3 and 4.
36 LBP-86-11, 23 NRC at 357. The Board also relied on the NRC staff's assessment of the applicants' quality assurance performance. Id. at 358.
37 See id. at 353-54; Banks, et al., Tr. fol. 10,077, at 5-7, 14; Frederickson and Prevatte, Tr. fol. 10,166, at 5-8; Tr. 10,098-99.
13 quality assurance program was adequate to detect errors that may have been caused by employees involved in drug use, makes 100% reinspection of all construction unnecessary.38 We recognize that even the.best quality assurance program cannot assure that every possible construction deficiency, whether caused by worker drug use or otherwise, will be detected. As the Licensing Board indicated, the Commission's regulations do not require perfection.39 Rather, the quality assurance program must provide " adequate confidence" that those systems, structures and components having safety-related functions "will perform satisfactorily in service."40 Any level of drug use among workers building a nuclear power plant is, of course, cause for concern. In light of the apparent success of the applicants' drug and quality assurance programs, however, we fully concur with the Licensing Board's conclusion that drug use at the 38 In addition, the applicants evaluated, and in some cases reinspected, the work of quality assurance personnel who themselves had been implicated in drug activity.
According to the Board, these reinspections " establish an overall proficiency (rate) of 99.6%" for those inspectors, and hence "provides reasonable assurance that the original work of those inspectors was adequate." LBP-86-11, 23 NRC at 359-64; Banks, et al.', Tr. fol. 10,077, at 8-14.
' LBP-86-11, 23 NRC at 354.
10 C.F.R. Part 50, Appendix B, Introduction. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-813, 22 NRC 59, 64 (1985).
14 Shearon Harris construction site was not " widespread," and that it has not resulted in safety-related construction deficiencies. Accordingly, we affirm its findings and conclusions on contention WB-3.
II.
The Commission's regulations for coping with radiological emergencies require the establishment of an area approximately ten miles in radius around a nuclear plant, known as the plume exposure pathway emergency planning zone (EPZ),41 and the "means to provide early notification and clear instruction to the populace within the plume exposure pathway (EPZ) . . . ." The regulations also state that "[t]he design objective of the prompt public notification system shall be to have the capability to essentially complete the initial notification of the public within the plume exposure pathway EPZ within about 15 minutes."43 In elaborating on these requirements, the Commission's basic guidance document on emergency planning states:
- 2. The minimum acceptable design objectives for coverage by the (notification] system are:
(a) Capability for providing both an alert signal and an informational or instructional message to 41 S 50.47 (b) (10) , (c) (2) .
10 C.F.R. 2 Id. , S 50. 47 (b) (5) .
I 43 Id., Part 50, Appendix E, S IV.D.3.
4 15 the population on'an area wide basis throughout the 10-mile EPZ, within 15 minutes.
(b) The initial notification system will assure direct coverage of essentially 100% of the population within 5 miles of~the site.
(c) Special arrangements will be made to assure 100% coverage within 45 minutes of the population who may not have received the initial gotification within the 'ntire e plume exposure EPZ.4 The Licensing Board admitted Eddleman contention
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57-C-3, which alleged that the applicants' fixed siren system did not meet these requirements with regard to nighttime summer conditions. As framed by the Board, the basic issue raised by the contention was whether the sirens can wake up virtually all the l people sleeping in the EPZ between 1 a.m. and 6 a.m. particularly those with windows closed and air conditioners running. The Applicants should address whether the presently planned means of I back-up mobile notification could and should be augmented to meet the "about 15 minute standard in Appendix E, if necessary.45 In resolving the contention, the Licensing Board interpreted the pertinent regulations as requiring reasonable assurance that more than 95% of the households within the inner five miles of the EPZ will be warned within the first fifteen minutes of the alert. As to the outer 44 NUREG-0654, FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," (Rev. 1, November 1980) at 3-3 [ hereinafter, "NUREG-0654"].
45 LDP-86-ll, 23 NRC at 364.
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I 16 five miles, the Board found that the' regulations permit greater flexibilit'y regarding the percentage of persons alerted in the first quarter hour.46 It found, however, that it need not specify a precise minimum criterion for j
this area because the evidentiary record established that the level of alerting in the outer five miles of the EPZ was sufficiently high to meet the regulatory standard.47 At the hearing on contention 57-C-3, the applicants relied initially on an alerting system' comprised of fixed sirens, informal notification, and mobile alerting.48 The Licensing Board found that the sirens can be expected to awaken approximately 84% of the households in the EPZ. With consideration of informal alerting, that figure increases to 91%. The Board concluded that this figure " clearly satisfies the 15-minute notification requirement" for the outer five miles of the EPZ.49 With the addition of route 46 See generally Final Rule on Emergency Planning, CLI-80-40, 12 NRC 636, 638 (1980).
47 LBP-86-11, 23 NRC at 372.
48 See Applicants' Motion for Summary Disposition of Eddleman 57-C-3 (November 2, 1984) and attachments.
Informal alerting refers to the phenomenon where people who have been alerted by the sirens contact and alert others.
See LBP-86-11, 23 NRC at 388. Mobile alerting is additional public warning provided by police and fire vehicles driving predesignated routes throughout the EPZ. See id. at 389-90.
49 LBP-86-11, 23 NRC at 396.
ii i
b 17 alerting, which the Eoard fcund would cover.30% to 40% of the EPZ population in fifteen minutes and could be completed in approximately forty-five minutes, the Board concluded that close to 100% of the entire EPZ would be notified within forty-five minutes.50 With respect to the inner five miles of the EPZ, however, the Board found that the combination of the sirens and informal alerting -- which would notify 91% of the households -- did not satisfy the regulations. In order to prevent any delay in obtaining an operating license, however, the applicants announced that they would' supplement their notification system with a tone alert radio system.51 0
jgi. at 396-97.
51 See Tr. 10,269.
In seeking summary disposition on this contention, the applicants took the position that the sirens alone satisfied the regulatory criteria, and that route alerting and informal alerting should serve merely as backup. The applicants maintain that the appropriate standard for evaluating the notification system is that found in
- NUREG-0654 at 3-8 to 3-11; i .e., that for areas with 2,000 or fewer persons per square mile, such as the Shearon Harris EPZ, the sirens must provide sound level coverage of 60 l
decibels, or 10 decibels above ambient noise levels, based on summer daytime conditions, depending on whether a field survey to determine the area's average daytime ambient noise level has been conducted. See also FEMA-43, " Standard Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants" (September 1983), at E-7 to E-8. The Licensing Board rejected this view, finding it to be unsound as a matter of both law and fact. First, it ruled that the ,
applicants could not rely on NUREG-0654 and FEMA-43 because (Footnote Continued) l l
. _ , _ v..- _ _ . - . . , . .- . _
.,.,_.,m_~m . .y. _ , ,. . _ , _ . _ . . . , . -,4_-,___. ,,
O e
18 Under this program, radio receivers are to be distributed to
, every household within a five-mile radius of the plant. The
< applicants have an arrangement with the National Weather l Service (NWS) , under which the NWS has agreed to broadcast a radio signal to the area around Shearon Harris in the event of a radiological emergency. This signal will, in turn, l (Footnote Continued)
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they'are merely guidance documents and cannot be given the binding effect the applicants advocate. Second, it found i
that the record.showed a 60-decibel siren sound level initiated at about 2 a.m. on a summer night would arouse, at j best, only 50% to 75% of the households in the EPZ. The
' Board held that such a result clearly would not satisfy the regulatory requirement 3. See LBP-86-ll, 23 NRC at 367-69.
Subsequently,-the Licensing Board,_in letters dated
' November 19, 1985 and May 16, 1986, conveyed ~to the Commission its " generic concerns about nighttime alerting at reactors which rely entirely on sirens and . . . ' informal L alerting' . . . ." Letter from Licensing Board to Commission (May 16, 1986) at 1. 'Because the Commission currently has under consideration the -issue' of the correct notification standard (see Letter from Chairman Zech to Licensing Board (August 7, 1986)), the NRC staff and the l
! Federal Emergency Management Agency (FEMA) withdrew their joint appeal raising this question. See NRC Staff / FEMA i
i Motion for Leave to Withdraw Notice of Appeal (May 21, i 1986). Similarly, the applicants chose not to include this i question in their brief. See Applicants' .Brief (July 9, 1986) at-29-30. Rather, the applicants argue that the question of whether fixed sirens alone meet the regulations i is now academic because.the Licensing Board determined that
, the applicants' system (as supplemented with tone alert radios) satisfies the Board's interpretation of the i
regulations. Accordingly, they ask us-not to reach the question. Because we agree that the applicants' notifi-cation system, with the addition of tone alert radios, fully complies with the Commission's regulations (see infra pp.
19-25), and because the Commission is addressing the notification issue generically, we see no need to decide whether a notification system consisting exclusively of ;
fixed sirens is adequate.
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19 cause the receivers to sound an alarm tone.52 The Licensing Board found that "the independence and partial redundancy of the siren and radio systems demonstrate compliance with the requirement of ' essentially 100%' alerting in 15 minutes in the first 5 miles of the EPZ."
On appeal, the intervenors purport to challenge a number of the Licensing Board's findings. Once again their appellate brief is wuefully inadequate. It generally consists of bare allegations that the Licensing Board's findings are wrong, and thus it fails.to comply with the Commission's Rules of Practice. Our examination of the intervenors' naked charges, however, satisfies us that there is no merit to any of them.
First, the intervenors claim that the Licensing Board erroneously considered informal alerting and " backup" alerting in resolving contention 57-C-3. According to the intervenors, because informal alerting is not mantioned in NUREG-0654, Appendix 3, it "is clearly not within the scope of the alert-notification system required by NUREG-0654."
l l With regard to mobile route alerting, the intervenors' l
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I 52 See LBP-86-11, 23 NRC at 391-96; Goodwin, et al.,
Tr. fol. 10,723.
53 LBP-86-11, 23 NRC at 395-96.
54 Intervenors' Brief at 6-7.
20 argument is somewhat more obtuse. They appear to argue that, because NUREG-0654, Appendix 3, S B.2. (c) perm 1ts mobile alerting throughout the EPZ as part of "[s]pecial arrangements . . . to-assure 100% coverage within 45 minutes," mobile route alerting cannot also be used to meet (1) the requirement of S B.2 (a) (in the same part of that document) to provide an initial alert signal and instructional message within fifteen minutes throughout the entire EPZ and (2) the requirement of 5 B.2 (b) to notify essentially 100% of the population within five miles of the plant site.
These charges are' easily answered. We need only remind the intervenors that NUREG-0654 is not a Commission regulation that compels obedience, as the intervenors seemingly believe. Rather, it serves as guidance,. setting forth but one method for meeting the applicable regulatory requirements -- here, 10 C.F.R. S 50.47 (b) (5) and Part 50, Appendix E, S IV.D.3. 5 In other words, that document "is treated simply as evidence of legitimate means for complying with regulatory requirements."56 Thus, contrary to the ALAB-843, 24 NRC at (slip opinion at 5 n.13);
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 710 (1985), review denied, CLI-86-5, 23 NRC 125 (1986).
56 Metropolitan Edison Co. (Three Mile Island Nuclear (Footnote Continued)
21 intervenors' claim, the mere fact that informal alerting.is not specifically mentioned in Appendix 3 of NUREG-0654 does not disqualify it from being considered as a means for complying with the notification requirements contained in the Commission's emergency planning regulations.57 Similarly, there is nothing in that guidance document to preclude the applicants from relying upon mobile route (Footnote Continued)
Station, Unit No. 1), ALAB-698, 16 NRC 1230, 1298-99 (1982),
aff'd in part on other grounds, CLI-83-22, 18 NRC 299 (1983).
57.The intervenors' challenge to the use of informal alerting is based solely upon their erroneous perception and reading of NUREG-0654. We note, however, that even without informal alerting the record establishes that the applicants' system complies with the Commission's regulations. In these circumstances, we resolve only the narrow question presented by the intervenors.
.The Licensing Board found that for the inner five miles of the EPZ sirens and tone alert radios would warn essentially 100% of the population within fifteen minutes.
LBP-86-11, 23 NRC at 395-97. For the outer five miles, the Board found that sirens would notify about 84% of the population within fifteen minutes and that informal alerting would warn 7% more, so that the fifteen minute notification j
requirement of the regulations would be met. Id. at 396.
i The record also demonstrates that mobile route alerting in I
the outer five miles of the EPZ would alert between 30% and 40% of the population in fifteen minutes. See Tr. 9582, 9595. If the same methodology as used by the Licensing Board is employed, almost the same total of the population will be alerted by the combination of sirens and mobile route alerting as with sirens and informal alerting.
Therefore, even though the appilcants did not rely initially upon route alerting as a part of their primary notification system, the record nevertheless establishes the ef fectiveness of route alerting for notifying the population of the outer five miles of the EPZ.
22 alerting to accomplish more than one goal of their notification system, and such use does not, without a great deal more, disqualify that alerting method from consideration as a means of meeting the regulations.58 Accordingly, the intervenors' arguments that seek to elevate an agency guidance document to literally read commands of black letter law must fail.
Next, the intervenors assert that in resolving this emergency planning contention the Board erred in not considering " siren failure rates."59 But it is well-settled that in a Commission operating license proceeding a party is 60 bound by the literal terms of its own contention and, unless a licensing board raises an issue sua sponte, it is authorized to decide only those matters put in controversy by the parties.61 Here, the postulated failure of the sirens was not part of contention 57-C-3. Indeed, the 58 In other cases we have approved the use of mobile
. route alerting as a component of emergency notification systems. See Catawba, ALAB-813, 22 NRC at 78; Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 369 (1983).
59 Intervenors' Brief at 7.
60 See ALAB-843, 24 NRC at (slip opinion at 12-13)
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 505 (1986).
61
_See 10 C.F.R. S 2.760a.
o 23 intervenors admit as much in their brief.62 Accordingly, had the intervenors sought to contest the likelihood of the applicants' sirens failing, they were obliged to proffer a contention to that effect in a timely manner.with an adequate supporting basis. Having failed to do so, they cannot now complain that, in resolving this contention, the Licensing Board erred in not considering siren failure rates. In any event, the record establishes that many of the residences in the EPZ are within the acoustical coverage area of more than one siren and that all residences within five miles of the plant will be provided a tone alert radio.63 Moreover, the mobile route alerting system blankets the entire EPZ. Hence, even assuming that a number of fixed sirens fail in an emergency, the people residing in the coverage area of the failed sirens still would receive ~ notification of the emergency.
The intervenors also argue that the. Licensing Board should have postponed issuing its final decision resolving this contention until obtaining " official test results"
- which, according to the intervenors, "would soon be l
62 Intervenors' Brief at 7.
63 See Applicants' Exh. 46; Tr. 9369; Keast, et al.,
Tr. fol. 9375,.at 12-13, 21; Tr. 9618-19, 10,269. See generally Goodwin, et al., Tr. fol. 10,723, 64 See Keast, et al., Tr. fol. 9375, at 26-27.
l
6 24 available."65 Unfortunately, the intervenors do not further identify their reference to official tests and the record is silent on the scheduling of any tests.- We presume, therefore, that the intervenors are referring to tests conducted by FEMA that-become part of the final FEMA findings on sirens.66 Yet there is no regulatory requirement that.such FEMA tests or findings be completed prior to the Licensing Board's authorization of an operating license. As we determined in Waterford, " installation and testing of the siren system is precisely the type of matter for which the Commission. believes' predictive findings can suffice . . . .
"67 More recently, while responding to much the same argument concerning FEMA siren findings in Catawba, we held that
[1]t is now well-settled that the issuance of FEMA's final findings on the adequacy of offsite emergency plans and preparedness is not a prerequisite to the authorization of a full-power operating license. Rather, ' preliminary FEMA reviews and interim findings presented by FEMA witnesses at licensing hearings are sufficient as long as such information permits the Licensing Board to conclude that offsite emergency preparedness provides ' reasonable assurance that 65 Intervenors' Brief at 7-8.
66 See Tr. 9641; 44 C.F.R. Part 350.
67 Louisiana Power and Light'Co. (Waterford Steam Electric Station, Unit 3) , ALAB-732, 17 NRC 1076, 1105 (1983).
t 25 adequate protective measures can and will b taken in the event of a radiological emergency.'"88 In this instance, the record overwhelmingly supports the Licensing Board's determination that there is reasonable assurance that the applicants' notification system meets this standard.69 The intervenors argue further that "[t]he Board erred in neglecting the indetectability of failures in tone alert radios . . . .
"70 This is simply not so. . The Board clearly set out the various existing safeguards for assuring that all receivers are in proper. operating condition and, in 1
e f fect , determined they are adequate.
68 Catawba, ALAB-813,'22 NRC at 78.
69 LBP-86-ll, 23 NRC at 408.
O Intervenors' Brief at 8.
1 LBP-86-ll, 23 NRC at 394. The receiver features a red light that is activated when the radio is operating properly, awaiting the alert tone. The radio can also be tested by pressing the weather bar, which would allow the standard weather broadcast that is available 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day to be heard. There is also a test bar on the receiver.
When-this bar is pressed, it will enable the user to l
determine if the signal he should hear when the alert tone is broadcast is functioning. In addition, the NWS has approximately 20 to 25 emergencies per year during which it broadcasts an alert tone. These occasions would allow the users to determine that the radio is operating properly.
Finally, the NWS sends'out a weekly alert signal as a test of the radio. Tr. 10,876-77.
It should be noted that the installation of tone alert radios as a supplement to the siren system within the l (Footnote Continued) t l
l
1 26 The intervenors also claim that the Licensing Board erred in not taking seriously the "many past failures" of tone alert radios in tests at another facility.72 But they introduced no evidence of such failures, and the data the intervenors cite for support relate to improper use of the 3
tone alert radios, not mechanical failure. In this regard, we note that the Licensing Board specifically adopted the same rate of improper use of tone alert radios found by a FEMA-sponsored survey of a Colorado reactor EPZ.
The Board assumed that 13.6% of the households within.the first five miles of the Shearon Harris EPZ would similarly misuse their radios and, hence, would not be alerted by the tone alert signal.74 (Footnote Continued) first five miles of the EPZ was first announced by the applicants on January 23, 1986, well after the. siren hearing began and, obviously, well after the time for the submission of contentions. See Tr. 10,269. In the Licensing Board's view, the question of radio failures was an integral part of its consideration of the tone alert radios as a notification supplement.
Intervenors' Brief at 8.
l See Tr. 10,757, 10,762.
74 LBP-86-ll, 23 NRC at 395. In a similar vein, the intervenors contend *that the Board erred "in accepting . . .
as credible" one of the applicants' expert witnesses who testified concerning, inter alia, the rate of improper use of tone alert radios. Intervenors' Brief at 8. For support, however, they merely refer us to their proposed findings, a practice that is clearly prohibited.
See Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),
(Footnote Continued)
s t
27 III.
Having reviewed the record and the intervenors' assertions of error, we conclude that there is nothing in the Licensing Board's decision regarding CCNC contention WB-3 and Eddleman contention 57-C-3 that warrants reversal. Further, we have conducted our customary sua sponte review of the balance of the decision and have found no errors requiring correction. For the foregoing reasons, (Footnote Continued)
ALAB-573, 10 NRC 775, 805 (1979) , vacated in part and remanded, CLI-80-8, 11 NRC 443 (1980). Nevertheless, we have reviewed the intervenors' allegation and find it to be without merit.
75 As their final attack, the intervenors assert that the Licensing Board should not have issued the initial decision until certain matters then pending before it were resolved. These matters concern (1) a question, over which the Board had retained jurisdiction, regarding possible harassment of two former employees of one of the applicants, and (2) a late contention filed less than a week before issuance of the initial decision. Shortly after the intervenors filed their brief in this appeal, the Licensing Board issued an unpublished ruling disposing of the possible harassment question, rejecting the late contention, and thereby rendering moot the intervenors' procedural objection. See Memorandum and Order (Rejecting Late Proposed Contention Concerning Alleged Falsification of Radiation Exposure Records) (June 13, 1966). There is similarly no merit to the intervenors' argument that issuance of the Board's decision should have awaited our disposition of all appeals from the earlier partial initial decisions. It is clear from the Commission's regulations that an operating license may be authorized before completion of the agency's internal appellate process. See 10 C.F.R. S 2.764 (f) .
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28 the Licensing Board's findings and conclusions on contentions WB-3 and 57-C-3 are affirmed.76 It is so ORDERED.
FOR THE APPEAL BOARD b,b-Nb _ A _h' C. J Q n Sh6emaker Secretary to the Appeal Board l
1 76 Although we affirm the Licensing Board's findings and conclusions on these two contentions, we do not affirm the Board's operating license authorization because we still have under consideration the intervenors' appeal from the Board's second partial initial decision, LBP-85-28, 22.NRC 232 (1985). Our resolution of that appeal is expected to be completed shortly.
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