ML20216D150
| ML20216D150 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/22/1987 |
| From: | Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#287-3883 CLI-87-02, CLI-87-2, LBP-87-10, OL-1, NUDOCS 8706300465 | |
| Download: ML20216D150 (62) | |
Text
{{#Wiki_filter:- _ - _ _ _ . - ._ _ _ - . . - - .. hWS? l cocxtiw 1 > trih w UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 JUN 23 P3 :47 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ,~s..
.t.
5-in the Matter of )
) Docket Nos. 50-443 OL-1 ;
l's ~ PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
)
)
50-444 OL-1 On-site Emergency Planning
'i
) and Safety Issues :
.(Seabrook Station, Units 1. and 2) ) i NRC STAFF RESPONSE TO APPEAL OF LBP-87-10 BY SEACOAST ANTI-POLLUTION LEAGUE, .v NEW ~ ENGLAND COALITION ON . NUCLEAR
. POWER, AND THE COMMONWEALTH OF MASSACHUSETTS .
Gregory Alan Berry i
%4 Counsel for NRC Staff 0-June 22,1987 B706300465 e70622 PDR ADOCK 05000443 G PDR
_--_--- __ _ - _ _ ____o
PMp -
;;. :\ ,
t-UNITED' STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , BEFORE TH'E' ATOMIC SAFETY 'AND LICENSING APPEAL BOARD (n the Matter o'f )
-)~ Docket Nos. 50-443 OL-1
' PUBLIC SERVICE ' COMPANY- OF ) .
50-444 OL NEW' HAMPSHIRE, et al. ) On-site Emergency Planning
) and Safety issues
~(Seabrook Station, Units 1 and 2) )
k NRC STAFF RESPONSE TO APPEAL OF LBP-87-10 BY SEACOAST ANTI-POLLUTION LEAGUE, NEW ENGLAND COALITION ON NUCLEAR POWER, AND THE COMMONWEALTH OF MASSACHUSETTS
' li Cregory Alan Berry ;
Counsel for NRC Staff June 22,1987
_m
. y ,
n- ' q i u ,- e 3.y\ j * -_ v. w LTABLE OF C NTBUS
~
q f '- ,.
;y M '
> ;,\
, ,. , Pages
~
* [- ISSUES FEESENTID . . . .r... . . . .::. . . . . . . . . . . . .-. . . I
]
,; ,s2 ,
TN3LE OF AUTIM yIT I EL . . . . . . . . . . . . . . . . : . . . . - . . . . . ill
' ')
I NTT(0UCT I Of . . . r .. . . - . . . . . . . . . . : . . . . . . . . . . . 1 Hu.wdRAL H I STORY , . . /, . . . . . . . . . . . . . . . . . . . . . . . 3
.q' ,w ,,,
AROJDITh.:l...........................
/
5
- l. Seacoast Anti-Pollution League . . . . .. . . .: . . . .
5 m ., ,_ i A. - TW Board Did Not Err In Strrmarily Disposing o _ Of; S@L Supplemental Contention #3 . . . . . . . . . . . - .5. i
~ x.
- n. %
s-1.C Consequence Ana lys i s . . '. . . . . . . . . . . . 7- )j
/
\
- 2. Asstriptions Used In The Probab'lIistIc i Risk Assessment . . ... ... . ... . . ./. . . . 9-4
]
', 3. ' External Events Hazard . . . . . . . . . . . .-
11 1
- 4. Uncertainty Bounds . . . . . . . . . . . . . . .
-12 j B. The Board's Rulings Regarding h e Safety Parameter Display System Were Correct . . . . . . . 12 1 .' The Board Properly Limited SAPL Contention 6 . . . . . . . . . . . . . . . 12
- 2. The Board's Reasonable Assurance Findings Regarding Applicants' SFOS Are Supported By.The Record . . . . ._. . . . . 13-
- 3. There Was No Need For The Seabrook Project Manager To Testify . . . . . . . . . . . 17
- 4. EMPL's Lste-Filed Contention-38 Properly Was Rejected . . . . . . . . . . . . 18
~ll. Cortmorwealth Of Massachusetts .............. 22 . > k A. . Massachusetts 01allenge To The issuance Of l A Low-Power License For .Seabrook Lacks Merit. . . . . 22 .
- 1. There is No Absolute Requirement-'
For A Separate Envirormental impact Statement for' Lcw-Power Licenses . . . . . . . . 22 -
- 2. The Seabrook EIS Considered
- b. .. Class 9 Accidents . . . . . . . . . . . . . . . 24 k
y , s
- 18. The Board Did Not Err'In Rejecting Massachusetts' Petition For Walver O f Requ i remen t s O f 10 CFR 50. 47 . . . . . . . . . . . - 25 C. Massachusetts Late-Filed Merrimac Sirens Contention Properly Was Rejected . . . . . . . . . . 28 l Ill. New England Coalition on Nuclear Power . . . . . . . . . .
29 l
- A. Issuance Of A Low-Power License.
Need Not Awalt Cmpletion Of The Proc eed i ng . : . . . . . . . . . . . . . . . . . . . . . . 29 B. TheLRecord Supports The Board's i Determination Regarding Applicants' Envirormenta l. Qua l i fi cat ion Program. . . . . . . . . . 30 -
- 1. 'ITT-Suprenant IG 58' Coaxial Cables . . . . . . . 31
- 2. The Staff's Review Of Applicants' !
EQP_ Wa s Adequa t e . . . . . . . . . . . . . . . . 33 C. NEO P's Contentions I.V,:ll.A.1, ll.B.2, o and IV Properly Were Rejected . . . . . . . . . . . .- 35 q
- 1. The Licensing Board Properly Denied Adni s s i on Of NECNP Cont ent i on I .V . . . . . . . . 35
- 2. The Licensing Board Properly Denied Adni s s ion O f NEWP content i on l l . A.1 . . . . . . 37
- 3. The Licensing Board Properly Denied Adni s s i on Of NEWP Conten t i on l l .B. 2 . . . . . . 43
- 4. The Licensing Board Properly Denied Adnission Of NEGP Contention IV . . . . . . . . 47 CONCLUSION . . . . . . . . . . . . . . . . . .'. . . . . . . . . . .. 48 .
i 1 .
-O
-I-lSSUES PRESENTED Seacoast Anti-Pollution League-p ^1. Did the Seabrook Final Environmental Statement (FES) comply with the requirements 'of the Commission's Interim Policy Statement?
- 2. Did the Licensing Board err in concluding that the health and safety of the public .would not be placed at risk if certain improvements to
- Applicants' _ Safety ' Parameter -Display. System (SPDS) were deferred i
, until the first refueling outage?
- 3. Must . a _ record be reopened to consider a late-filed contention challenging the adequacy of App!! cants' siren system for the entire Seabrook- emergency planning zone even though the supporting affidavit does not explain why the siren system for the entire EPZ is inadequate or allege that any deficiencies are incapable of resolution?
Commonwealth of Massachusetts _1. ' Must a separate Environmental Impact Statement (EIS) be prepared before a low-power.-license may be issued?
- 2. Does the Seabrook FES adequately consider Class 9 accidents?
- 3. Must a petition for waiver of 10 C.F.R. 9 50.47(d) be granted where ee the movant falls .to make a prima facie case that application of the regulation 'would not serve the purposes for which it was promulgated?
- 4. Must the record be reopened to consider a late-filed contention challenging the adequacy of alert siren system for the town of Merrimac, Massachusetts even though the supporting and opposing affidavits establish that no significant safety issue is involved?
New England Coalition on Nuclear Power
- 1. Must the issuance of a low-power license be deferred until all issues '
relating to off-site emergency planning are resolved?
- 2. Did the Board err in finding that Applicants' environmental qualifi- I cation files relating to RG-58 coaxial cable contained sufficient information to conclude that the cable was environmentally quallfled?
. 3. May a contention challenging the adequacy of Applicants' steam ]
generator tube in-service inspection program be rejected if it does not 1 specify any deficiencies in the inspection program? j 4
- 4. Did the Regulatory Agenda issued by the Commission in 1982 constitute ,
a change in regulatory requirements applicable to quality assurance ' l programs? I l
< - ii. -
.5. May. a contention alleging that Applicants quality assurance program i
falls to encompass item "important to safety" be admitted where the intervenor falls to identify a ' single item or type of item believed to
- Important'to safety that is excluded from Applicants' quality-assurance -
program?
-' 6 . .- -May a Board take. Into account the actual design of a' facility in -
determining ' whether a contention satisfies the specificity and ' basis requirements of.10, C.F.R. 6 2.714(b)? 4 l r i
r , i i
- ill - !
i TABLE OF AUTHORITIES l Page(s) ) ( Judicial Decisions
. i N RC v. Cuomo, 772 F.2d 972 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . 23 Administrative Decisions 4
Nuclear Regulatory Commission i American Nuclear Corporation (Revision of Order to Modify Source Materials Licensei, CLI-86-23, j 2 4 N R C 7 0 4 ( 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Commonwealth Edison Company (Braidwood Station, Units 1 and 2) Commission Order (March 20,1986) ( u n p u b l i s h ed ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Long Island Lighting Company (Shoreham Nuclear Power Station) , CLi-85-9,19 N RC 1323 (1984) . . . . . . . . . . . . . 21 Long Island Lighting Company (Shoreham Nuclear Power Station), CLI-85-12, 21 N RC 1587 (1987) . . . . . . . . . . . . passim Long Island Lighting Company (Shoreham Nuclear
~ Power Station ) , CLI-85-1, 21 - N RC 275 (1985) . . . . . . . . . . . . . . 30 Long Island Lighting Company (Shoreham Nuclear Power Station), CLi-84-9,19 NRC 1320 (1984) ............. 46 'Long Island Lighting Company (Shoreham Nuclear Power Station) , CLi-83-17,17 NRC 1032 (1983) . . . . . . . . . . . . 26 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLl-84-14, 2 0 N R C 2 8 5 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,47 Pacific Gas and Electric Company (Diablo Canyon . Nuclear Power Plant, Units 1 and 2), CLI-84-12, 20 RC 249, aff'd sub nom. , San Luis Obispo Mothers for Peace v. "NRC, 751 F.2d 1287 (D.C. Cir.1984),
6 aff'd en banc, 789 F. 2d 26 (D.C. Cir. 1986) . . . . . . . . . . . . . . 10 Public Service Company of New Hampshire (Seabrook
- Station, Units 1 and 2), CLI-87-03, 25 NRC
( J u ne 12 , 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
-IV-Page(s)
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLl-87-02, 25 NRC ( A p ril 9, 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pa ssim
. Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),
C L I-81 -33, ' 14 N RC 1091 - ( 19 81 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I Atomic Safety and Licensing Appeal Board Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, remanded on other grounds, CLI-74-12, 7 AEC 203 (1974) ............ 38,40,41 Carolina Power and Light Company (Shearon Harris Nuclear Power Plant), ALAD-837, 23 NRC 525 (1986) . . . . . . . . 38,40 i Consolidated Edison Company of New York (Indian ; Point Station, Unit 2), ALAB-209, 7 AEC 971 (1974) ....... 41 ! Duke Power Company (Catawba Nuclear Station, j Units 1 and 2) , ALAB-813, 22 N RC 59 (1985) . . . . . . . . . . . . . . . 6 i Duke Power Company- (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460 (1982), modified , C Ll-83-19, 17 N RC 1041 (1983 ) . . . . . . . . . . . . . . . . . . 45 ! Houston Light and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N R C 5 4 2 , 5 4 8 ( 19 8 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 ) i Long Island Lighting Company (Shoreham Station), l A LA B -7 8 8 , 2 0 N R C 1102 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 l Loulslana Light and Power' Comoany (Waterford { Steam Electric Station, Unit 3), ALAB-812, 1 2 2 N R C 5 ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,33,39 q l [ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-811,
, 21 N R C 16 2 2 ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Pacific Gas and Electric Company (Diablo Canyon i , Nuclear Power Plant, Units 1 and 2), ALAB-781, ,
2 0 N R C 819 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I 1 i 1 i
( l V- , I Page(s) Pacific Cas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-763, 19 NRC 573, review declined, CLl-84-14, 20 NRC 285 (1984) ........................................ 31,39 Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220 (1986) .. ... 37,43
=
Philadelphia Electric Comaany (Limerick Generating Station, Units 1 and 2 ? , ALAB-828, 23 NRC 13 (1986) . . . . . . 6 Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, modified on other grounds, CLl-74-32, 8 AEC 217 (1974) .. . 36 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 N9C (May8,1987)............................................ passim Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2T-- AIX1f753, 25 NRC (November 20, 1986), rev'c' CLI-87-02, 25 NITC~ ( A p r i l 9 , 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 1 Public Service Company cf New Hampshire (Seabrook ! Station, Units 1 and 2), ALAB-731,17 NRC 1073 (1983) .... 5 l Puerto Rico Electric Power Authority (North Coast Nuclear Power Plant, Unit 1), ALAB-f,48, 14 N R C 3 4 ( 19 81 ) . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . . . . . . . . . . . 6 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), A LA B -673 , 15 N R C 6 8 8 ( 19 82 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Southern California Edison Company (SFq Onofre Nuclear Generating Station, Units 2 a6d 3),. I A LA B -2 6 8 , 1 N R C 3 8 3 ( 19 7 5 ) . . . . . . . q. . . . . . . . , , , . . . . . . . . . . . . 41 Toledo Edison Company (Davis-Besse Ndclear !
~
Power Station, Units 1, 2 and 3), ALAB-378, i 38 5 N R C 5 5 7 ( 19 7 7 ) . . . . . . . . . . . . . . . . . . . j . . . . . . . . . . . . . . . . . . . . . Union Electric Company (Calloway Planti Unit 1), , e A LA B -74 0, 18 N RC 3 4 3 (19 8 3 ) . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . 31 ( 4 Vermont Yankee Nuclear Power Corporailon ' i
"~~(Vermont Yankee Nuclear Power Statihn), {
' A LA B - 13 8 , 6 A E C 5 2 0 ( 19 73 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 l b
l
- vi -
Page(s) Atomic' Safety Licensing Board Houston Lighting and Power Company (South Texas Proiect, Units 1 and 2), LBP-79-27,10 NRC 563
* (1979) , aff'd , A LAB-575, 11 N RC 14 (1980) . . . . . . . . . . . . . . . . 38 Long Island Lighting Company (Shoreham Station),
.* LBP-85-18, 21 NRC 1637, aff'd, ALAB-824, 2 2 N R C 7 7 6 ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-10, 25 NRC ( M a rc h 2 5 , 1 9 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-30, 24 NRC 437 (1986) . . . . 4,18 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-25, 24 NRC 141 (1986) .... 25 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-86-22, 24 NRC 103 (1986) . . . . 4 i Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-76,16 NRC 1029 (1982) ... passim Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-76-21I, 3 NRC 857 (1976) . . . .. 39 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), Memorandum and Order (Denying Mass.' Motion of March 3,1987) (March 25, 1987) (unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . 28,29 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), Memorandum and Order (Denying SAPL's Motion of February 6,1987), (March 23, 1987) (unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,19,20 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), Memorandum and Order
. (Directing Submissions by Applicants and Staff; Reopening Record for Supplementation) (November 4, 19 8 5 ) ( u n pu blis hed ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 l
i, : Public Service Company of New Hampshire (Seabrook l Station, Units 1 and 2), Memorandum and Order on Motions for Summary Disposition) (May 11, 19 63 ) . . . . . . . 5,6,7,9,10
- l
1
~
m. r
's
- vil -
L Page(s)
' Statutes-
' 42 ' USC . 5 4332 ( National Environmental Policy Act) ' . . . . . . . . . .
21 2-Regulations'- , 1 1 0 C . F . R . 9 2 . 71 4 . . . . . . . . . . . . . .. ' . . . . . . . . . . . . . . . . . . . . . . . . . . . passim L 1 0 C . F . R . 5 2 . 71 5 ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 10.C.F.R.62.734.......................................... 20,41 10C.F.R.62.758........................................... passim 10 C . F . R . 6 5 0. 3 3 ( g ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 10 . C . F. R . 5 5 0 . 3 4 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 s
. 1 0 C . F . R .' 5 0 . h 7 ( d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,27,30-1 0 : C i F . R . 5 5 0 '. 4 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,32,33
- 10. C. F. R.! Part . 50, ' App'endix" A , General ' Design Critera . . . . . . . . passim
. . ee
- 10 ' C . F. R . - Pa rt 5 0, Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,42,46 L
- 4 0 C . F . R . 6 . 1 5 0 2 .1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 40C.F.R.6.1502.2.......................................... .8 4 0 ' C . F . R . 5 1 5 0 2 .16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
' Federal Register
-- 51 Fed . Reg . 1953 5 (May 3 0, 19 86 ) . . . . . . . . . . . . . . . . . . . . . . . . . . 20; 50 Fed. Reg . 37608 (September 9, ,1985) . . . . . . . , . . . . . . . . . . . . .
3 47 Fed ; Reg . 1.8534 ( April 29, 1982 ) . . . . . . . . . . . . . . . . . . . . . . . . 40 46 Fed. Reg. 51330 (October 19, 1981) ...................... 3.
- .? 36 Fed. Reg. 3257.(February. 20, 1987) ...................... 39 )
4 ,
+
N' ; * ~ [ . .; i UNITED STATES OF AMERICA - NUCLEAR REGULATORY COMMISSION I' DEFORE THE ATOMIC SAFETY AND LICENSING' APPEAL. BOARD
- inlthe Matter. of- )
. ) Docket Nos. 50-443 OL l- PUBLIC SERVICE COMPANY' OF ) 50-444 OL NEW HAMPSHIRE, et al. ) On-site Emergency Planning
) and Safety issues
-,(Seabrook Station, ' Units 1 and 2) )
' NRC. STAFF RESPONSE TO APPEALS OF LBP-87-10 BY MACOAST. ANTI-POLLIITION LEAGUE, NEW. ENGLAND COALITION -
ON NUCLEAR' POWER, AND.THE COMMONWEALTH OF MASSACHUSETTS ' INTRODUCTION T On . March 25,1987, the Atomic Safety and Licensinge Board issued a g , Partial' initial Decision in the above-captioned proceeding.- .LBP-87-10. E
'in. this decision the Board resolved all matters in controversy relating to on-sito 1 emergency planning: and- safety.' issues favorably to . Applicants.
- g. ,' slip.-op. at 67. 2/
~
1/. 'Public Service Company of New Hampshire '(Seabrook Station, Units 1 a and 2) , . . LB P-87-10, . 25 NRC . (March 25, 1987) (hereinafter
" Partial Initial Decision" or "PIDny .
-2/ -Although this decision : also authorized the Director -of Nuclear Reactor Regulation to issue a license for low power testing and operation - 5% of rated power, id., the Commission, in an order of January 9,1987, taking sua sponte review of ALAB-853, 24 NRC 771 -
,. .(November 20, 1956), . stayed authorization to issue- further licenses
- for' low power operation 'of Seabrook until it had completed its review of the _ question of "whether as a matter of law or policy ' a. utility
-applicant .'should- be required to' submit a radiological emergency plan...- for the entire emergency planning zone (EPZ for the facility C
~
before any operating ' license may be issued." In CLI-87-02, 25 NRC (April 9, 1987), issued after that review, the Commission , (FOOTNOTE CONTINUED ON NEXT .PAGE) n .
-~ ,
r .
- 2=-
' Seacoast Anti-Pollution League (SAPL), New England Coalition on Nuclear
-Power -(NECNP), and the Commonwealth" of Massachusetts (Massachusetts)
~
have appealed the Board's' decision. 3_f None of the . appeals present an . error of procedure, fact, or. law y, warranting reversal'of LBP-87-10. Accordingly, the Appeal Boarc should deny the appeals filed by. Intervenors and affirm the decision ' reached by. the Board in LBP-87-10. (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) reversed ' ALAB-853 on policy' grounds ' and continued . . Its stay - l prohibiting the issuance .of any further. Iow power license for - Seabrook until after Applicants submitted on offsite emergency plan for that part of the_ emergency planning zone in the Commonwealth' of Massachusetts. - The Commission stated: in the special circumstances 'of this case our judgment is that sound policy favors the L filing of aL State, local
- or utility _ plan before any operating license 'Is issued, including-~ /a _ license confined to fuel loading and low-power testing..
Slip op at 6. . A license. for fuel loading and precriticality testing remains in ~effect. Id. at 3. In CLl-87-03, 25 NRC , slip op, at 9 - (June 11, 1987T-~ the Commission held that an emergency plan submitted by_ the Applicants on April-8, 1987, was not a bona fide plan as contemplated by CLi-87-02, and declined to lift its stay of-the issuance of an operating license for Seabrook. 3/- Seacoast Anti-Pollution League's Brief in Support of Appeal of Partial
~
initial Decision Authorizing issuance.of. License to Operate Seabrook - 9' Station Unit 1 Up To 5% of Rated ' Power- (May 4, 1987)' ("SAPL Appeal"); New England Coalition on Nuclear Power's Brief in Support
'Of Appeal Of Partial . initial' Decision Authorizing issuance Of A'
. License To Operate At Low Power (May 8,1987) . (_"NECNP Appeal");
- Atto ney General James M. Shannon's Brief in Support Of Reversal Off Licensing _ Board's Partial initial Decision Authorizing issuance Of .
A- Low-Power Operating License (May 7, 1987) (" Massachusetts Appeal") .
n
=
PROCEDURAL HISTORY This operating license proceeding commenced in Octobe- 1981, when. the Commission published in the ' Federal Register a Notice of Opportunity fo_r Hearing. See 46 Fed. Reg. 51330 (October 19, 1981). On November 30, 1981, a licensing board panel chaired by Judge Hoyt was appointed. Pursuant to 10 C.F.R. 6 2.714, SAPL, NECNP and' the State of. New Hampshire were among those admitted as intervening parties; j Massachusetts .was admitted as an interested state pursuant to 10 C.F.R. -' 6 2.715(c). i
- In August 1983, hearings were held on three safety and on-site !
i emergency' planning ' issues. After ' proposed findings, of fact were !
. submitted by the parties, the Board was reconstituted in September 1985. I In November 1985, the reconstituted Board issued an order, stating:
We' have reviewed the record and have concluded that the record needs to be reopened for the limited purpose of supplementation.- It is not our intention, and we will not permit the retrying of issues heard before the closing of the record' on August 23, 1983. After a prehearing conference, and after discovery, if any, a supplementary hearing will be ordered to take evidence on the above-identified matters pertaining to Contentions NECNP 1.B.2, NECNP 111.1, and NH 20, which involve significant health and safety issues, and which were not previously ripe for hearing.
-4/ On September 9, 1985, a new licensing board panel consisting of Administrative Judges Sheldon Wolfe (Chairman), Emmeth Luebke, -. and Jerry. Harbour was appointed to preside over all safety. and on-site ' emergency planning issues. That Board issued the decision there under review. Administrative Judges Helen Hoyt, Luebke, and Harbour retained . jurisdiction over all off-site emergency planning '
I issues. 50 Fed. Reg. 37608 (September 9,1985). ) a 1 l
. I I
-u-Memorandum and Order (Directing Submissions by Applicants and Staff:
Reopening Record for Supplementation) at 2 (November 4, 1985) l i (unpublished). Thereafter, on September 15, 1986, the Board also provided for a hearing on SAPL Supplemental Contention 6 which had not ! previously been heard. El The hearing began on September 30, 1986 and concluded on October 3,1986. Proposed findings of fact were filed by the parties and ; k on March 25, 1987, the Board issued its Partial initial Decision, finding in j favor of the Applicants on each of the contentions there considered favorably to Applicants. LBP-87-10, slip op, at 67. SAPL, NECNP, and Massachusetts flied timely appeals of that decision. 6/
-5/ SAPL Supplemental Contention 6 received that designation upon New Hampshire's withdrawal of its sponsorship of Contention NH 10, which SAPL had also sponsored. See Memorandum and Order (Ruling on N H's Motion to Withdraw Entention NH-10, and on Applicants' Motion to Strike SAPL's Objection to Motion to Withdraw),
LBP-86-22, 24 NRC 103,106-07 (1986). The Board granted in part Applicants' motion for summary dispostion of SAPL Supplemental Contention 6 which challenged the adequacy of the Seabrook control room design and Safety Parameter Display System (SPDS). Public Service Company of New Hampshire (Seabrook Station , Units 1 , and 2), LB P-86-30, 24 NRC 437 (1986). The Board determined a hearing on this issue would be limited to a single issue: ! whether or not, in light of the fact that the SPDS is not currently at an optimum, i.e., incomplete, because of the ; I aforementioned deficiencies, there is reasonable assurance that, in deferring improvements to the SPDS until the first refueling I outage, the safety of the population in the immediate vicinity of j the plant will be protected.
. l
_ld, at 447-48 (footnote omitted). 6/
~
SAPL, NECNP, and Massachusetts each petitioned the Appeal Board for a stay pendente lite of the Board's Partial Initial Decision. The petitions were denied. Public Service Company of New Hampshire , (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC (May 8, 1987). l 1
The findings contained in the Partial initial Decision find ample support ir4 the record and .the Board committed no error of law 'or procedure warranting reversal. Accordingly, the Appeal Board should deny each 'o'f the appeals and affirm LBP-87-10. ? ARGUMENT , I. SEACOAST ANTI-POLLUTION LEAGUE A. The Board Did Not Err in' Summarily Disposing of SAPL Suoplemental Contention #3 SAPL contended t, hat: The appilcable requirements of the Commission's interim Policy Statement . lssued June 13, 1980, 45 Fed. Reg.
.40101 on . Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 have not been met.
- See Public Service Company of New Hampshire, et al. . (Seabrook Station, l
Units 1 and 2), LB P-82-76, 16 NRC 1029, 1982 (1982). The Board granted Applicants' motion and denied SAPL's cross motion for summary disposition on the grounds that SAPL failed to show that the FES is not in compliance with the Commission's. Interim Policy Statement. U SAPL maintains that Applicants' motion should not have been granted as it raised issues of material fact as to the truth, adequacy and completeness of the accident consequence analysis in the FES which could only have
- 7/ Memorandum and Order (Ruling on Motions for Summary Disposition) I at 35 (May 11,1983) .
I
l been resolved in hearing. SAPL Appeal at 4. 8l - The basis for this assertion is the challenge raised in its own motion for summary disposition which tested the compliance of the FES with the Interim Policy Statement on its face. In that pleading SAPL alleged that the FES was Idj.
, deficient in four areas: consequence analysis, assumptions used in the probabilistic risk assessments, discussion of external factors, and quantitative uncertainty analysis. See Memorandum and Order (Ruling on Motions for Summary Disposition) at 31 (May 11, 1983) (hereinafter "May 11, 1983 Memorandum"). On appeal, however, SAPL also seeks to interject new arguments and assertions which it failed to present to the Board. El These new arguments now advanced for the first time by SAPL are late and should not be considered on appeal l.0/
ee
~8/ SAPL previously sought to appeal the dismissal of the subject con-tention. The Appeal Board said: "SAPL must await the Licensing Board's initial decision before presenting its grievance for appellate consideration." Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-731,17 NRC 1073,1075 (1983). l 9/
~
For example, SAPL argues on appeal that the ES did not contain
" appropriate" uncertainty ranges. See SAPL at 9. As discussed at
- p. 10-11, infra , in its motion for summary disposition, however, i SAPL contended that the FES failed to identify any uncertainties. l Simliarly, on appeal SAPL challenges the assumptions used in the ;
FES to assess risk and consequence of particular types of accidents. See SAPL Appeal at 8-9. Before the Board, however, SAPL q questioned only the assumptions involving emergency evacuation and siting. The Staff address all of SAPL claims at pp. 7-11, infra. l 10/ An appeal may only be based on matters and arguments raised
~-
1 below. The Appeal Board has stated "our disinc!! nation to [ review l matters not raised belowl is particularly strong in circumstances where the issue and the factual averments underlying it could have been - but were not -- timely put before the Licensing Board. It scarcely is fair for a party to seek relief from a trial tribunal on one theory and, if unsuccessful, then to mount an appeal on a discrete , (FOOTNOTE CONTINUED ON NEXT PAGE)
^ ~ .y ,c f >
[. y: M f <
* . .7 -
- 1.
- Consequence Analysis SAPL' asserts' that the FES does'not-set out "the' impacts of. even one single 1 nuclear accident resulting' in catastrophic: consequences." SAPL h Appeal at '8. The: . Board ' dealt / with this ' Issue ~in its discussion of the
~
j requipements .in the. Policy Statement. - As the Board said, the Policy-
~ -
Statement requires .only '"a reasoned consideration' off the environmental h ~ risks " attributable L to accidents . " ' May 11,1983 Memorandum at 32. 'As
' the Licensing Board' recognized, the Staff.had evaluated the consequences 43
-of : fourf majorf (Class' 9) accidents and reported on them at pages 5-45 th' rough . 5-71 ~ of .the FES. E ' The cited . sections of the FES fully meet withi the requirements . set ~ forth . In the Commission's' interim Policy--
' Statement -(IPS) on . theocontents of an FES in that . they ' set 'out ..the;
~-
sequences dhat can result in inadequate cooling of reactor fuel,1 melting of the reactor core and to the environmental consequences of such . releases from'such occurrences. Further, the FES' analysis includes both the risk-(that Is, the combination of. probability and consequences) and the
-(FOOTNOTE' CONTINUED' FROM PREVIOUS 'PAGE) theory founded on additional asserted facts which, although were H
available at the time, had not been given 'to that tribunal." Puerto Rico Electric Power Authority (North ' Coast Nuclear. Power Plant, ! Unit 1 ) , . A LAB-648, 14 NRC 34, '37 (1981); see- also, e. ., I Philadelphia Electric Company (Limerick Generating Ttation,. Una s 1 and . 2) , ALAB-828, 23 .N RC .13,, 20 n.18 (1986). . Further, even though a party may have' timely objected to a Licensing Board's 1 r l. , ruling on an issue,' an Appeal Board will not consider new arguments /
! offered by the party against. the ruling when those arguments were
~
not ' raised before the. Licensing . Board.
~
Duke Power Company, (Catewba~ Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 82-83 (1985).- ill/: See, NRC Staff Response to SAPL's Motion for Summary Disposition,
~
M5rch 23, 1983, Affidavit of Jocelyn Mitchell at 19.
-i
]
1
o - p f L I r
- specific environmental impacts (consequences) of major accidents at various probability levels. The Board correctly determined that as a matter of law there was no genuine dispute regarding the FES' compilance 5 with requirements' to the Commission's interim Policy Statement. May 11, 1983 Memorandum at 35. j SAPL's assertion that " defining environmental consequences in terms ~l of their probabilities would not provide the public or ' governmental' decision makers with sufficient information" is nothing more than .. a !
disagreement with the form of presentation .of the data, not a claim that-such data is ~ non-existent in the FES. SAPL Appeal at 6. E The FES-met the requirements of the interim Policy Statement. Finally, SAPL's reliance on the requirements in CEQ regulations to evaluate " reasonably foreseeable adverse impacts" is misplaced. See' 40 C.F.R. - 66 1502.1, 1502.2, 1502.16: SAPL Appeal at 7. Not only is there no indication that the CEQ regulations place a _more stringent requirement upon the contents of the FES than does the IPS, but it is obvious. from the above discussion that the FES meets the requirements of-the CEQ regulations. As the Board noted, The Commission's prior policy .was that the possibility of Class 9 accidents is so remote that they need not be considered in a normal environmental review. . .The Commission has now refined that policy to permit a
" reasoned consideration of environmental risks attrib-utable to accidents..." However, the Commission stated in the Policy Statement that "this change In policy is
-.- not to be construed as any lack of confidence in con-clusions regarding the environmental risks of accidents expressed in any previously issued statements..." It is 12/ The iPS does not specify the manner of presentation of the results '
of the accident analysis, merely that the environmental impacts and their probabilities be included. Mitchell Affidavit, supra, f 9, i 1 J
y clear, therefore, that of the myriad of accident sce-narios' that ' might be ' postulated, there remain many
, whose possibility is simply too remote..to be included in-
"a . reasoned. consideration olf] environmental risk." By i the same token, those scenarios. present no information J
" essential . to a reasoned cholce among alternatives."
*- (cites omitted).
May 11, 1983 Memorandum at ,32, n.9. SAPL falls to make any . showing that the Board erred in .this analysis.- See also ALAB-865, slip op. at 18. 2.- - Assumptions Used in the Probabilistic Risk Assessment SAPL next asserts the assumptions used in the accident analysis were not sufficiently related to the Seabrook site. SAPL Appeal at 8. - SAPL once again merely recites its disagreement with the Board findings but~ falls to explain how the Board erred. As the Board pointed out,
-none of these assertions were supported by affidavit, and the " actual conditions for emergency planning will be bounded by the assumptions )
1 contained .in Appendix F" which " sets forth a pessimistic scenario in I which 'no early evacuation is assumed and all persons are assumed to be exposed for the first 24 hours ' following an accident and are then reloca ted . '" May 11,1983 Memorandum at 33. SAPL does not make any showing _ that such ' assumptions render the PRA assessment . Inadequate, and fails even to address the Board's ruling in this regard. El l 13/' 'Upon appeal SAPL also seems to be raising questions in response to particular types of accidents, such as steam generator tube rupture,
. and their consequences. SAPL Appeal at 8-9. Before the Licensing Board, however, .SAPL only raised' questions involving emergency
- evacuation assumptions and siting questions. See SAPL Motion for ,
.. Summary Disposition at 3-5 (February 11, 1983). Again, SAPL may '
not raise issues here not raised below. See n.9, supra.
4 , _
, i "
,i
- 10.-
}, 3.' External Events Hazard-. ;3
.SAPL; challenges the Board's ruling citing the FES analysis .that +
consequences of.' successful- sabotage acts would not be different from .the:
~
"' consequences _.of severe ' releases caused byM" internal events". SAPL ya
. Appeal . at 9. However, . SAPL provides no support for _ this assertion and b L falls: to ' point out ' how the: Board erred ;in this ruling. Furthermore, with .
-r regard to " the ' assertion .. that earthquakes could be different . since' the-
. seismic activity might not ' only cause an accident; but might - Impair . the emergency response,. .SAPL not only falls to support its assertion, but" attempts to raise an issue not raised below, ld.
'The' sole issue before~ the Board in this regard was -the insufficiency, of, the FES~ because it did notLseparately discuss- the' risks of a sabotage attack. Since there had not been a successful sabotage event of the . type contemplated by the contention, it was beyond'.the: state of the art (due.
to the absence of available data) to assess' the probabilities of the.rlsk of , w such events. NRC Staff Response to SAPL's Motion, supra, .at 19; see May 11', 1983 Memorandum at 34; see also A LAB-865, slip op. at i
'17-18. b 1
a c14/ Although the issue' of consideration of earthquakes was not raised
~~~
below, it nevertheless has been addressed by the Appeal Board. In
.Diablo Canyo,n_, the Appeal Board found that consideration of seismic events was not required in an FES absent "special circumstances."
- Pacific Gas:and Electric Com aany, ' (Diablo Canyon Nuclear Power
'~
$- Plant,. - Units 1 .and 2), A _AB-781, .20 NRC 819, 825-828 (1984).
I SAPL provides no . showing of "special circumstances" . which would-warrant such consideration at Seabrook. Further, it should be noted that the Commission has. proscribed any l need to consider the comp!!cating effects of earthquakes on , ] (FOOTNOTE CONTINUED ON NEXT PAGE) 3 1
'I l
i Oi
- 4. Uncertainty Bounds Finally, ' SAPL asserts FES did not contain appropriate uncertainty ranges. SAPL A;5 peal at 9. SAPL gives no support for. Its assertion and !
once more raises an issue fundamentally different from the issue in
- consideration below, which .was whether or not the FES identified a.ny uncertainties, not whether. such uncertainties were appropriate. In fact, SAPL's . Statement of Material Facts as to which There is No Dispute, No. 6 states, "The Final Environmental Statement does not identify 'any specific major uncertainties in the risk analysis." EI As the Board found , the Staff responded to this and pointed oist that four major uncertainties were' identified: source term , atmospheric dispersion, particulate deposition, and values of plume characteristics. May 11,1983 Memorandum and Order at 34.. Nowhere did -SAPL raise the issue of the appropriateness of such uncertainty ranges and such an assertion cannot be raised for the first time on appeal.
For all of the foregoing reasons, the Board correctly determined that all .of SAPL's challenges to the adequacy of the EIS were without merit. 1 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) emergency planning as too remote to require consideration. Southern Edison Co. (San Onofre Nuclear Generating Station, Units
- 2 and 3), C LI-81 -33 , 14 NRC 1091 (1981); accord, Pacific Gas and Electric Co. (Diablo Canvon Nuclear Power Plant, Units 1 and 2), I CLI-84-12, 20 NRC 249 (1984), aff'd sub nom. San Luis Obispo I Mothers for Peace v. NRC, 751 F.2d 1287 (D.C~. UTr. 1984), j aff'd en banc, 789 F.2d ED.C. Cir.1986).
-15/ SAPL's Motion For Summary Disposition, supra , at Appendix A (February 11, 1983). l
1 12 - The EIS plainly compiled with all applicable requirements. The Board did not err either in granting. Appilcants' motion for summary disposition of SAPL Supplemental Contention #3 or in denying SAPL's cross motion for summary d'isposition, v. ! - B. The Board's Rulings Regarding the Safety Parameter Display-System Were Correct SAPL contends that the Board improperly limited its contention relating to the adequacy of Applicants' Safety Parameter and Display System (SPDS); misinterpreted NUREG-0737, Supp.1 by ruling that a !
"fullp conipliant" SPDS was not a condition precedent to an . operating ,
l
' llcense; and abused its discretion in denying SAPL's request. to call the Seabrook- Project . Manager as a witness. SAPL ~ Appeal at .11-12. As explained below, there is no merit to any of these cIalms. **
- 1. The Board Properly Limited SAPL Contention 6 SAPL Supplemental Contention 6 states:
The .Scabrook Station Control Room Design does not comply with General Design Criteria 19 through 22 and 10 C.F.R. Part 50, Appendix A, and NUREG-0737, items I.D.1 and I.D 2. The gravamen of SAPL's concern with respect to Applicants' SPDS is that all of the requirements set forth in NUREG-0737, Supplement 1 must be satisfied before an operating license (Iow-power or otherwise) may Issue. Eg, SAPL Appeal at 17. SAPL's position is without merit.
~*
' As the Board noted, NUREG-0737, Supp.1, which sets forth the 1 requirements relating to SPDS, does not specify a time period by which ,
j 1 an applicant must complete its SPDS; rather this matter essentially is left ; i i
to the discretion of the . assigned NRC Project Manager. PID at 9; NUREG-0737, Supp.1, Introduction, 1 3.5. In ALAB-865, the Appeal Board considered and rejected the argument that all NUREG-0737, i
- Supp.1,- requirenients must be met before low power operation:
Section 50.57(a)(1) provides generally that an operating license may be issued if construction of the facility has been. .substantially- completed in accordance with statutory and regulatory requirements. Supplement 1, which' sets out the requirements applicable to the.SPDS, , does not impose any fixed schedule for ' implementation j of the .SPDS. Rather the schedule is left essentially to the staff's discretion. Contrary to SAPL's assertion, we find no requirement that all elements of the SPDS must be completed before low-power. operation is authorized. Thus, SAPL has failed to satisfy its heavy burden of demonstrating that the Licensing Board's determinations concerning the SPDS are wrong. [ Footnote omitted.] Seabrook, supra, ALAB-865 at 26. The Appeal Board recognized that full briefing on the merits of the SAPL's appeal might change its preliminary conclusion that a " fully compliant" SPDS is not necessary for licensing. ALAB-865 at 27. However, SAPL has not added any substantial argument not formerly submitted or cited new authority in support of its claim that, as a matter of law, the SPDS must be fully compliant with the goals of NUREG-0737, Supp.1, prior +e ' r.. ~ " - ae rs ,aM should again be rejected.
- 2. The Board's Reasonable Assurance Findings Regarding Applicants' SPDS Are Supported By The Record SAPL contends that the Board erred in allowing the completion of
-* three SPDS Items to be deferred until the first refueling outage. SAPL
, Appeal at 15. These items are (i) the addition of a containment isolation ,
display; (11) testing to determinine SPDS computer response time under i l bIahamandhE6mm ung sdammm'm '.mrmirr is 1si
i
'I heavy load conditions; and (111) Improving the SPDS's data validation ;
algorithm. . ,l d . There is no merit to SAPL's arguments. 1 It should be emphasized that the SPDS is not a safety system; that L is, no operator actions are to be taken at the SPDS terminal or based exclusively on information displayed on the SPDS. PID, 1 22; NUREG-0737, Supp. 1, f 4.1.c; Staff test. , ff. Tr. 822, at 2; App. , test. , ff. Tr. 739, at 1-2; Eckenrode, Tr. 978-79. Since operators would be alerted to abnormal conditions through normal control room
' instrumentation and alarms , the absence of an SPDS would not affect '
adversely the. ability of operators to determine rapidly and reliably the status of the plant. See Eckenrode test., ff. Tr. 822, at 4, 11, Tr. 935-36, 985, 995. All information displayed on the SPDS is available elsewhere in the control room, Eckenrode, Tr. 931, and operators are trained to respond to emergencies with and without the benefit of SPDS. PID, i 23 $ SAPL states that a containment isolation display should be added to the SPDS prior to licensing because a " containment ' isolation valve left open could compromise a good degree - of the containment's isolation function. " SAPL Appeal at 15. It is true that containment isolation 4 status Indicators are not presently displayed on the SPDS computer a i i
~
16/ For these reasons, none of the eleven SPDS Items requiring
. corrective action precluded the Board from finding that there was reasonable assurance that the public health and safety would not be jeopardized if corrective actions were not completed until the first refueling outage. See ge.., NRC Staff Brief in Support Of its Proposed- Findings 7f Fact And Conclusions Of Law at 6 (November 26, 1986); NRC Staff Response To Applicants' Motion For Summary Disposition of Contention SAPL Supp. 6 at 13-14 (August 18,1986).
I
g , terminals. .PID, f 34. It is not true, however, to say that Applicants' SPDS does not include containment isolation indicators. As the Board observed, there is located near and readable from the prime SPDS terminal a " bank of valve position indicator lights showing containment
..- Isolation status on the main control panel . . ." M. , T 35; Walsh, Tr.
771-72, 781-83. The Board determined, based on the expert testimony of a Staff witness, that this arrangement "would enable an operator at the prime SPDS location to determine containment isolation status from the bank of Indicator lights on the main panel." PID f 35; Eckenrode, Tr. 965-66, 986. E Subject to verification by the Staff, the Board found this arrangement satisfactorv and concluded "that there is reasonable assurance that the public hesith and safety will not be adversely affected by deferral of addition of the containment isolation Indicators to the SPDS console until restart following the first refueling outage." PID, f 35. SAPL has not offered any explanation as to why this' factual determination is erroneous. El
~
17/ At the time of the hearing, the Staff had not yet reviewed the changes made by Applicants to ensure that an operator at the prime SPDS terminal could observe and determine containment isolation status from bank of lights at the main control panel. Consequently, the Board conditioned its reasonable assurance finding upon the ; Staff's verification that the isolation valve indicator lights were l arranged as Applicants had described. PID, f 35.
-18/ SAPL states, without elaboration, that an " Unusual Event at i Seabrook occurred subsequent to the hearings on February 11, 1987 involved a failure to properly isolate containment." SAPL Appeal at 15. SAPL does not claim that this alleged failure was not Identified by control room operators. SPDS is intended to serve only the limited purpose of providing a precise display of critical plant variables. PID, f 21. Thus, only a showing that main control .
l (FOOTNOTE CONTINUED ON NEXT PAGE) i i 4 l
- u. ,
5
~
4
'A l' .The r Board's ' finding that deferring the evaluation of. SPDS iresponse-time - during a period of heavier load ' conditions on the. . main plant - -
computer until the first refueling outage.. posed no danger to the public :
~
.' health'and safety l finds ample support in the. record. First, in order to - 1 perform. a system load test under these heavy load conditions requires 3 some level of- plant operation. . PID, f 47. . Second, even under heavy .
4 load-conditions SPDS data would still be updated, albeit maybe not every: five. seconds as was ' the case during the load test previously conducted. M.,if46-47. Third, - all SPDS ' indications must be ' verified before any actions' may be taken. - _ This' latter factor obviates' the possibility that-
- Incorrect actions or operations will ' be taken on-'.the basis of less than
. timely SPDS ' indications. Id., f 147. In . Its appeal, SAPL neither
' controverts - these Board' determinations nor attempts . to explain why deferring the evaluation of the SPDS -response ~ time until the : first j refueling outage would jeopardize the public health and safety. )
.l Similarly, tha Board's finding that deferring the completion . of )
modifications - ~ to. the SPDS data validation algorithm until the first - refueling outage would- not compromise - the . public health and safety is
- supported by the - record. - The Board found .that the SPDS algorithm is - i
. generally adequate. to ensure that valid data was displayed to 'the SPDS .
operator. PID, 1 42.- In those limited instances "in which a potential for i misleading information may occur in the SPDS top level display because of
, ]
i (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) : panel failed to identify the alleged failure to isolate containment .
- could serve to undermine the Board's finding on this issue. SAPL j does not even attempt to make this showing. j i
l 4
validation algorithm," however, the Board found that " reliance by the plant operators on alarms and displays on the main control board is an adequate interim compensating procedure" until appropriate changes are made to the SPDS' algorithm. I d_. SAPL does not attempt to explain why
. this " interim compensating procedure" Jeopardizes the public health and safety.
In the same vein, other than stating its disagreement with the Board's findings, SAPL offers no explanation as to how deferring action to make the SPDS top., level display continuous and the addition of RHR flow, containment hydrogen, and radiation variables to the SPDS until the ' first refueling outage affects adversely the public health and safety. See SAPL Appeal at 16-17. The Board's findings are amply supported by the record evidence. See PID, 11 29-33, 36. See ALAB-865 at 25.
- 3. There Was No Need For The Seabrook Project Manager To Testify SAPL contends it was prejudiced by the Board's denial of its motion to direct the Staff to make available the Seabrook Project Manager for examination at the hearing. SAPL Appeal at 14. According to SAPL, by denying its motion the Board effectively barred SAPL from probing the basis for the schedule agreed upon by the Staff and Applicants for implementing the SPDS. ,l d . The Board's denial of SAPL's motion was neither erroneous nor prejudicial. The Board denied S A PL's request because SAPL: (i) had not sought a subpoena; (ii) had not demonstrated the general relevance of the testimony sought to be adduced to the issues In controversy; and (iii) had not satisfied the requirements of 10 C.F.R.
- e. >
$ , _ , * {' -
1 t _18 '- 7
'l' 2.72'0 (h) . - Tr.- 51-55 (September 29', 1987)'. SAPL does not' state dwhich,'if any, of these reasons is erroneous. ~ SAPL Appeal'at 14.
. Moreover, ' SAPL's motion correctly Lwas deriled.. As SAPL acknowl-
, , edges, the . motion . was ' prompted by a' desire to elicit testimony;regarding -
the : schedule agreed upon' by the' Staff. land . Applicants _ ifor the
~
' implementation 'of the SPDS. This testimony was .not material. .. The pivotal lssue regarding SAPL's SPDS contention .was whether 'the condition
..J of Applicants' . SPDSI '. extant at the ' time' of the hearing precluded the-
- requihlteireasonable assurance: finding. ' Seabrook, supra, 24 NRC at 447.-48;.'see :also "ALAB-865, slip op. . at 26, n.56. :The testiniony of the C .SeabrookqProject~ Manager- regarding the failure,of Applicants to complete the SPDS by an agreed upon date sheds no light on this inquiry and thus was tnot material. Moreover, since the testimony sought to~ be elicited was ,,
. not material, 'It fo'l lows also that SAPL-did not. and could not satisfy the
" exceptional circumstances" requirement of 10 C.F.R. 62.720(h) necessary.
to ' compel .the testimony of a NRC employee not designated .as a witness by ,
~
the Executive Director for Operations. I9I [ j [ ,
-C. SAPL's Late-Filed Contention 38 Properly Was Rejected SAPL . maintains- that the Board abused its discretion in tienying _ . ,
4 SAPL's motion to reopen the record . and consider S'A PL's Ihte-filed ' :
~. :
e q
. -19/J Moreover, the testimony of the _Seabrook Project Manager was not- , - 1
- necessary to e'xplain why correction of each of- the deficiencies in the .. -
. SPDS identified - by the. Staff could be deferred until .the first' ;
refueling outage ' since the . witness ' produced by . the ' Staff ..was . 1 competent-- to respond to such questions. See- Tr. 47 (September 29, - 1986) ]j
/
, I
. 1 w.
,O - . . P
19 - contention (SAPL ' Contention 38) relating..to the adequacy of Applicants' siren system for the Seabrook emergency ' planning . zone (EPZ). . The Board found that SAPL had not' met the requirements for reopening a closed record, Memorandum and Order. (Denying SAPL's Motion of
. i' February 6, 1987), (March 23, 1987) (unpublished) (" March 23, 1987 Memorandum and Order"), and its decision is supported by the record.
In its motion,. SAPL alleged that during a siren test conducted on 1 January 31, 1987, problems were encountered in the broadcast' of messages over the system. SAPL also cited' as a basis for its motion a ruling by a Superior Court of New Hampshire that the llcenses issued by the Towns of.. Rye and Hampton Falls and the New Hampshire Department of Transportation which permitted Applicants to install siren poles on land owned by the towns were invalid. The Board found that neither of the bases cited by SAPL presented a "significant safety issue." M. at 8. With . respect to problems with the sirens, the Board relied upon the affidavit of William iazerus, the Staff expert, which stated that the probfems' encountered in the siren test were due in part to the failure of
~
' th.e Town of ' East Kingston to conduct the test in accordance with approved Seabrook test proendures and an . Unexpected snowstorm. M. at
- 7. To ensure that ther4 would be no reckrrence of these problems, Mr.
L7anrus. stated any future siren tests would be conducted in accordance c with approve,d procedure and that adequate measures would be taken to ensure that the broadcast of messages would not b'f affected adversely by 1
>j _
y j
,srrew or ice stormr, Id. at 8. Nothing in SAPL's motion contradicted
, , ' a
these assertions. , As. the Poard noted: ("[SAPL's aff, ant) . . . does not ,
/ ,
tell us,- nor' doeg , he have the expertise to so. ad' vise us, that the
! ,i
, ., .e
/
a--
.l :) -
' % J'[ 2. _
7 w_ 1
i
. problems encountered are insurmountable or incapable of solution. ,ld at 9.
l Similarly, the Board found that the ruling of the New Hampshire }
- Superior Court did not present a significant safety issue because the i
court's ruling had been (and remains) stayed pendente lite. ,l d . In view of this stay, the Board observed that the lower court ruling "does not preclude the sirens from being used to notify the public[.]" -Id. C f. Seabrook, supra, ALAB-865, slip op. at 20. (Intervenors were unlikely to prevail on the merits of a claim that "the Board acted unreasonably in declining to reopen the record.") ] 1 SAPL also argue on appeal that the Board erred in construing its late-filed contention to apply only to the sirens installed in East Kingston, New Hampshire. SAPL Appeal at 20. According to SAPL, its ; late-filed contention called into question the adequacy of Applicants' siren system throughout the entire Seabrook EPZ. I d_. Accepting SAPL at its l word, this circumstance constitutes an additional reason why the motion to reopen the record properly was rejected. The Commission's regulations l l require a proponent of a motion to reopen the record to support its request with affidavits. 10 C.F.R.. 9 2.73'4(b); 51 Fed. Reg . 19535 (May 30, 1986). SAPL did not attach to its motion the affidavit of any expert which suggested that Applicants' siren alert system for the entire EPZ was inadequate. In this respect SAPL falls to appreciate that a record is reopened not merely to hear new cialms but rather to consider new evidence. See 51 Fed. Reg. at 19538 (" Reopening will only be i allowed where the proponent presents material, probative evidence"). As , the Appeal Board has stated, "to justify the granting of a motion to l j
m . , reopen the moving papers must' be strong enough, in the light ~ of any opposing fliings , . to . avoid summary disposition." Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138,' 6 AEC' 520, 523 (1973). Since the affidavit attached to SAPL's motion did ~not even allege, much less establish, that Applicants' siren
- system for the entire' EPZ was inadequate, the " evidence" proffered by SAPL fell short of this requirement. Therefore, the Board properly j denied SAPL's motion to reopen 'the ' record to admit its late-filed contention.
II. COMMONWEALTH OF MASSACHUSETTS A, Massachusetts' Challenge to the issuance of a Low-Power License for Seabrook Lacks Merit
-1. There is no Absolute Requirement for a Separate Environmental impact Statement for Low-Power Licenses Massachusetts argues that the National Environmental Policy Act (NEPA), 42 U.S.C. 5 4332 et seq., requires that before a low-power license can . be issued, the Commission is' obligated to prepare a separate or supplemental Environmental impact Statement (EIS) addressing low-power operations. Massachusetts Appeal at 5. It is not disputed that a separate EIS addressing low-power operation has not been prepared for Seabrook. This fact is of no consequence, however, because both the i Commission and the District of Columbia Circuit Court of Appeals have held that a separate EIS need not be prepared for low-power operations. - In' Long Island Lighting Company (Shoreham Nuclear Power Station),
CLl-85-9, 19 NRC 1323 (1984), reaffirmed, CLi-85-12, 21 NRC 1587 ,
.(1985), -the Commission observed that "in the usual case NEPA does not i
- a. b
,h#
, require any, separate environmental analysis of th'e proposal to Isii.se s a'iow
.l power operating license" because~ the low power license "is simply a small
- componentiof or , intermediate ' step to the full-power " license;" hence, the p.;- .
L . environmental' evaluation for low power operation is subsumed in the EIS
- ,, for . full power operation. '19 NRC at 1326. in. CLI-85-12, the Commission
-1 visited this subject. again and explained why the 'en /ironmental " benefits of low-power operation. clearly _ outweigh the environmental costs."
121 NRC at 1590. The Commission observed that the benefits of low-power testing included: _( i) the detection and correction of problems which might 'i otherwise prevent or delay . full-power operation; (ii) the evaluation, 1 assessment, . and familiarization with ' technical specifications and operating procedures; and (iii)_ the experience to be gained by plant personnel' from operating the plant during "a. critical but still low power operation."
,ld. 'at 11590-91. The Commission. was, not unmindful of the -fact that
. low-power testing results in " moderate ir radiation- of the core anrj contamination of the remainder of the primary coolant system [.]" Id. at 1590.- The Commission noted, however, that this ' condition - has "no significant impact on the surrounding environment ,by releases of effluents during normal operation." ,l d .
Massachusetts argues that a supplemental EIS addressing low-power operations for Seabrook was required because of the uncertainty over
. whether a full-power license ultimately will be issued to Applicants.
Massachusetts- Appeal at 9. The Commission has held that uncertainty over the outcome of a full-power operating license proceeding does not of itself require the preparation of a supplemental EIS. Shoreham, 21 NRC .
atx 1589'. This' determina'lon t was affirmed by the Court of Appeals in NRC v. Cuomo, 772 F.2d 972, 977 (D.C, Cir,1986).- In Shoreham, the alleged uncertainty as to whether a full-power
~
license ultimately would issue was based in large part on the opposition of w, State and local authorities to the ' emergency evacuation plan. The applicant in that proceeding had prepared and' filed a utliity offsite - emergency plan and the Commission's determination that a Supplemental Environmental Impact Statement for low power operation was not needed was predicated in part on ' the existence of that utility plan which was subject to examination in an adjudicatory proceeding. Shoreham, 21 NRC at 1589, in CLl-87-02, the Commission in granting a stay of further low power licensing of Seabrook stated that it could not make the determin-ation that it made in S,horeham that there were no "truly insuperable ~
. obstacles to issuance of a license for operations at any: substantial power level," as no offsite plan had been filed to permit a determina-tion as to "whether adequate emergency planning . is at least in the realm of' the possible." CL1-87-02, . at 6-7; see' CLl-87-03, at .5-6, 9; cf. ALAB-865 at 10. See Part 'lV(B), infra.
However, a determination of whether a Supplemental Environmental Impact Statement in the circumstances of this case is not necessary, for the Commission has stayed the issuance of further low power licenses ,for Seabrook until such time as the applicant files a bona fide offsite J emergency plan. As no further low power license is to be issued, there ! i
is no need for a Supplemental EIS at this. time. O Should Applicants in the future file a bona fide plan allowing for a determination of "whether adequate emergency planning is at least in the realm of the possible," the standards in C L'l-87-02 and CLi-85-12 would govern. At present , _. examining such a question only would be an academic exercise.
- 2. .The Seabrook EIS Considered Class 9 Accidents Massachusetts echoes the arguments advanced by SAPL in its appeal regarding alleged deficiencies in the FES discussion of Class 9 accidents.
As previously explained in response to SA PL's appeal, the FES did ; consider Class 9 accidents and provides tables which indeed list early 9 fatalities , latent cancers and early injuries. FES at 5-53 to 5-57, Figs. 5.4 to 5.7 and Table 5.10. Like SAPL, Massachusetts is complaining here .i about the manner of the presentation of the data, whlie ignoring the specific scenarios utilized, including the assumptions contained in Appendix F. Therefore, Massachusetts' appeal should be denied for the , same reasons discussed in Part lil(A) of this brief. l B. The Board Did Not Err in Rejecting Massachusetts' Petition For Waiver of Requirements of 10 C.F.R. 9 50.47 On July 2, 1986, Massachusetts , pursuant to 10 C.F.R. 5 2.758, petitioned the Board for waiver of 10 C.F.R. 6 50.47(d), the regulatory provision which allows the issuance of a low-power license prior to the
~1/ The Commission has stated that it has " decided to take no action with respect to the oustanding license for fuel loading and ,
I precriticality testing because there is no safety benefit from removing the fuel." CLi-87-02 at 3 (footnote omitted). 1
t
- 25.-
resolution of offsite emergency planning issues. Massachusetts charges that th'e LBoard committed reversible error 'In denying its petition. - Massachusetts' Appeal at 29. This argument is without merit. As section 2.758(b) makes clear, "(t]he sole ground for petition for waiver or. exception shall be that special circumstances with respect to the (
- subject ' matter of .the particular proceeding are such that application of the rule' .or- regulation (or provision thereof) would not serve the purposes for which the rule or ' regulation was - adopted." 10 C.F.R.
52.758(b). Since Massachusetts did not -- indeed could not -- make the requisite showing, the petition properly was ' denied. Public Service I Company of New Hampshire - (Seabrook Station, Units 1 and 2),
-f LBP-86-25, 24 NRC .141,147 (1986) .
As the Commission has, noted, the purpose of a low-power license is to ' enable an applicant to detect and correct problems which might prevent ' or delay full-power operation; to evaluate, assess, and familiarize itself with . operating procedures, and technical specifications; and allow plant personnel to gain valuable experience in the actual operation of the facility. Shoreham, su pra , CLi-85-12, 21 NRC at 1590-91. In these' j
' circumstances , authorizing a low-power license (subject to the requirement of 10 C.F.R. 6 50.47(d) that the state of onsite emergency preparedness 2/' in CLI-87-02 and CLl-87-03, the Commission stayed the issuance of 4 an operating license for Seabrook, including a fuel loading and low-power license, until the submission of a bona fide offsite
. emergency plan. See fn. 2, supra. However, that action does not moot the consideration lif the subject argument, as Massachusetts not only seeks a stay of licensing until offsite emergency plans are submitted for all of the emergency planning zone, but a stay until '
all off-site emergency planning issues are resolved.
. I l
l provides reasonable assurances that adequate protective' measures can and will- be taken in the event of an emergency) is consistent with, rather - 1 than contrary to, the purposes for which section 50.47(d) -was ! promulgated. Provided that all other ' applicable requirements are
, satisfied, 'section 50.47(d) permits the. Issuance' 'of a low-power license
' prior to the resolution of offsite emergency planning issues, implicit in
' the regulation is the recognition that low-power operations entall minimal risks to . the public health and safety. Long island Lighting Company (Shoreham Station), CLt-83-17 17 NRC 1032,1034. Consequently, it is l not necessary to have resolved at this stage all issues relating to the measures to ' be taken to protect the surrounding offsite environment in the unilkely ' event of an emergency during low-power operations.
Massachusetts does not deny that authorization to conduct low-power testing would be beneficial to Applicants. Rather, the thrust of its waiver petition was that because there was no assurance that operation at full power. would occur in the near future, if ever, low-power testing i should not be allowed to proceed. See Massachusetts Appeal at 30. The ; In Massachusetts' argument falls to address directly the central issue relating to waiver petitions: whether the application of the regulation at issue would serve the purpose for which it was adopted. Massachusetts did not demonstrate in its waiver petition that authorizing Applicants to conduct low-power testing would not enable Applicants to detect and-
. w correct problems which might prevent or delay full-power operation; or assist Appilcants in evaluating, assessing, and familiarizing themselves with ' operating procedures and technical specifications; or to allow ,
Applicants' plant personnel to gain valuable experience in the actual
l 1 d 4 operation of the facility. Nor does Massachusetts address these matters i i in its appeal brief. Thus Massachusetts has not shown that it has met the standards in 10 C.F.R. 5 2.758 for waiver of the subject regulation !
~
so as to require the resolution of offsite emergency planning issues before the issuance of a low-power license for Seabrook. 3_/ However, as noted above, the Commission in CLi-87-02, ruled that no low-power license should be issued for Seabrook until an offsite l emergency plan for that portion of the emergency evacuation zone in 4 i Massachusetts is submitted. It distinguished its former opinions in j Shoreham stating: In Shoreham, we specifically observed that the emergency planning issues raised there did "not appear to us to be categorically unresolvable," CLl-83-17, 17 NRC 1032 at 1034 (1983), and we did not discount the possibility that a license for fuel loading and low-power i testing could be held up if it were established, beyond significant doubt, that there were truly insuperable obstacles to issuance of a license for operation at any substantial power level. We believe that sound policy ; requires that we retain this option at least for i Seabrook. The filing of an offsite plan makes possible at least a summary review, of the type we performed in ' Shoreham, to determine whether adequate emergency planning is at least in the realm of the possible. Thus ! applicants must do at least this much before there can be any license issued. , Slip op. at 6-7. Thus, although Massachusetts has not established that , the provisions of 10 C.F.R. 5 2.747(d) should be waived to require the 3/
~
In CLI-87-03, the Commission held that a " utility" plan submitted pursuant to 10 C.F.R. 6 50.33(g) must be a " bona fide" one; that is, it must be intended to be implemented by the applicant and 1 submitted for review by the Staff and the Federal Emergency I Managament Agency ( FEMA ) . Public Service Company of New , Hampshire (Seabrook Station, Units 1 and 2), CLi-87-03, 25 NRC (June 12,1987). 1 1 1
resolution of off-site planning issues before the issuance of a 1,ow-power operating license, the Commission has required the filing of a " bona fide" i off-site emergency plan to show that " adequate emergency planning is at j least in the realm'of the possible' before any license can be issued. Id.; , see also, CLI-87-03, slip op. at 9-9. i C. Massachusetts' Late-Filed Merrimac Sirens Contention l Was Properly Rejected There is no merit to Massachusetts' argument that the Board erred ; l In refusing to reopen the record to consider its late-filed contention l regarding the adequacy of Applicants' siren system for the town of Merrimac, Massachusetts. See Massachusetts Appeal at 20-21. The Board properly determined that Mass chusetts had not shown that a "significant safety or environmental issue" was involved or that a " materially i 1 different" result would be or would have been reached had the newly i proffered evidence been considered initially. , Memorandum and Order I (Denying Mass. Motion of March 3, 1987) at 16 (March 25, 1987) i' (unpublished). Massachusetts' contention alleged that in certain areas of Merrimac, { Applicants' siren system " falls to meet either of the alternative NRC/ FEMA ] sound level acceptance criteria for providing reasonable assurance th a l l the populace will hear the sirens during an emergency." The applicable
- criteria require that the expected siren sound pressure exceed 60 decibels (dBC) or the average measured summer daytime ambient sound pressure levels by 10 dBC. See FEMA Rep.10 at E-8. Applicants attempted to !
establish the adequacy of the Merrimec siren system by complying with the second criterion. Using a frequency band width of one-third octave
I l
~
centered on 630 Hz, Applicants conducted ambient background sound j measurements on March 10, 1987, 'the results of which demonstrated that I 1 the sound pressure levels of the Merrimac sirens exceeded the ambient sound levels of the' affected areas of Merrimac by at least 10 dBC, f 1 Massachusetts does not dispute these facts. See Massachusetts 1 l Appeal at 24-25. Instead, Massachusetts relles on the affidavit of its expert who stated that ambient background sound measurements using a ; frequency band width of one octave centered on 500 Hz indicated that the sound pressure of the Merrimac sirens did not exceed the the ambient sound levels of the affhcted areas of Merrimac by at least 10 dBC. See Affidavit of Brion Koning at t 6, attached to Motion of Attorney General James M. Shannon Motion To Reconsider Late-Tiled Contention With Revised Basis And To Reopen The Record (March 3, 1987). This evidence did not present a significant safety issue, however, because as the Board noted, FEMA has ruled that it was permissible to use either a ' ' full octave or a one-third octave to measure background ambient noise. March 25, 1987 Memorandum and Order at 15. Indeed, Mr. Koning does not dispute this point. See Koning Affidavit, supra, at S 5. There being no significant safety issue involved, a reopening of the record was not warranted. Massachusetts' motion to reopen the record to consider its lete-filed contention properly was denied. Ill. NEW ENGLAND COALITION ON NUCLEAR POWER A. Issuance of A Low-Power License Need Not Awalt Completion of The Proceeding NECNP argues that the Atomic Energy Act precludes the issuance of a low-power license before all hearing issues relevant to full-power i
l
-{
d operation have been reso*ted. NECNP Appeal at 29-38. 4I - To find in favor of NECNP on this issue, the Appeal Board would have to invalidate 10 C.F.R. 6 50.47(d), the Commission's regulation which allows the issuance of a low ' power Ilcense if certain prerequisites are met even if the Commission has yet to resolve all offsite emergency planning issues." Attacks on Commission regulations are not permitted. 10 C.F.R. 6 2.758(a) Shoreham, supra, CLI-85-1, 21 NRC et 278; American Nuclear i Corp., su pra , 24 NRC at 708; Seabrook, supra, ALAB-865, slip op. at 15. NECNP's challenge to section 50.47(d) must therefore be rejected by the Appeal Board. El D. The Record Supports The Doard's Determination Regarding Applicants' Environmental Qualification Program NECNP argues that the Board erred in finding that the Staff's ** i review of Applicants' environmental qualification program (EOP) was adequate and in determining that the environmental qualification of the RG-58 coaxial cable used at Seabrook was properly documented. NECNP l Appeal at 21-30. These assertions are without merit. SI ! 4/
~
SAPL and Massachusetts make similar clairrs. See SAPL Appeal at 28; Massachusetts Appeal at 32-37,
-5/ As noted earlier, in Part IV(B), the Commission has stayed the issuance of ,a low-power license for Seabrook until a bona fide offsite emergency plan is filed for that portion of the EPZ in Massachusetts.
CLI-87-03.
~6/ NECNP makes many statements regarding the Commission's environmental qualification regulations, many of which are not germane to a consideration of the purported errors it seeks to have reviewed and are of doubtful validity. See NECNP Appeal at 14-20. ,
(FOOTNOTE CONTINUED ON NEXT PAGE) i
+
- 1. ITT-Suprenant RC-58 Coaxial Cables Section 50.49(f) provides four alternative means by which electrical l equipment may be environmentally qualified. U Applicants used the (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
The best example is N ECN P's claim that absent perfect quality assurar.ce documentation, electrical equipment cannot be found to be environmentally qualified. Id. at 18. This assertion, is inconsistent with the Appeal Board's hofding in Union Electric Company (Calloway Plant, Unit 1), ALAB-740,18 NRC 343, 346 (1983), which recognized that "in any project even remotely approaching in magnitude and complexity the erection of a nuclear power plant, there inevitably will be some construction defects tied to quality assurance lapses." A reasonable assurance finding may be precluded only if those quality assurance deficiencies are so pervasive and of sufficient ! dimension to " raise legitimate doubt as to the overall integrity of the facility and its safety-related components." Id.; Louisiana Light and Power Company (Waterford Steam Electrii~ Station, Unit 3), ALAB-812, 22 NRC 5,14-15 (1985). Further, absent proper quality assurance documentation, equipment and structures may be found to be properly qualified on the basis of tests and review. ! Pacific Gas and Electric Company (Diablo Canyon Nuclear Power TJiant, Units 1 and 2), ALAB-763, 19 NRC 571, 618-19, i review declined, CLI-84-14, 20 NRC 285 (1984); Long Island ' Li ghting Com 3any (Shoreham Station) , LB P-85-18, 21 NRC 1637,
~
aff'd, ALAB-324, 22 NRC 776 (1985). 7_/ The qualification methods are: (1) Testing an identical item of equipment under identical conditions or under similar conditions with a supporting analysis to show that the equipment to be qualified is acceptable. (2) Testing a similar item of equipment with a supporting ' j analysis to show that the equipment to be qualified is acceptable. (3) Experience with identical or similar equipment under similar conditions with a supporting analysis to show that the equipment to be quallfled is acceptable. (4) Analysis in combination with partial type test data that support the analytical assumptions and conclusions. , 1 10 C.F.R. 9 50.49(f) . l
second method -- testing a similar item of equipment -- to qualify the i RG-58 coaxial cables used at Seabrook. Woodward, Tr. 378-79. The record indicates that Applicants determined that the RG-58 coaxial cable was environmentally qualified based in part on the representation of the
, cable manufacturer, international Telephone & Telegraph Co. (ITST), that RG-58 cable "has similar construction detalls" to RG-59 coaxial cable, one of the most commonly used types of cable in the nuclear industry.
NECNP Ex. 4, Ref 4.
]
i NECNP does not argue that the RC-59 coaxial cabic used to qualify I the RC-58 cable falls to satisfy the requirements of 10 C.F.R. 6 50.49. i Nor does NECNP challenge the cable manufacturer's assertion that RG-58 l l and RG-59 cable have "similar construction details." See NECNP Ex. 4, l Ref. 4. Rather, the sum and substance of NECNP's complaint is that the cable manufacturer did not provide a detailed, technical explanation for its conclusion that the two cable types were similar. See NECNP Appeal at 21-25. According to NECNP, without this written explanation the EQP file for RC-58 cable cannot be considered complete. Id. at 24. N ECN P's j argument should be rejected. Applicants did not rely solely on IT&T's l certification that the materials were similar. Woodward , Tr. 380-83. I i instead, Applicants conducted an independent review of IT&T's submittal and concluded that the RG-59 cable was sufficiently similar to the RG-58 cable used at Seabrook. Id. This review is documented in the EQP file, i i NECNP Ex. 4. These facts are not challenged by NECNP on appeal. In view of these considerations, the Board did not err in concluding that
" justification for environmental qualification of cables RG-58 . . . by .
}
1 1 l L ' < a
-comparison Lwith . ' tested. coaxial cable . . . . . RG-59-U is~ adequate.!y '
? documented in the ' Applicants' EQ files." '.PID,170. 8,/ ' .I n
2.- The Staff's' Review of Applicants' EQP Was Adequate '
,. NECNP challenges the adequacy- of the Staff's review of Applicants'-
'l en'vironmental qualification program. NECNP Appeal at -25. ' As . explained i
. below,- there is . no basis to NECNP's claim. EI ' General Design Criterion ' ~
-(GDC) 4, .10 C.F.R. Part 50, Appendix A, requires an applicant to take j measures' to ensure that electrical equipment' important to safety - will perform its- Intended function . In potentially- harsh environments. PI D ,
TT 51. Section 50.49(j) of the Commission's regulations requires an. applicant to maintain records to permit verification that. each Item of electric equipment' important to safety covered ' by this section (1) *is
. qualified. for Its application" and (2) " meets its specified perfomance requirements when it is subjected to the conditions. predicted to be present when . it. must perform its safety function up' to the 'end ' of 'Its qualified, life." 10 C.F.R. 6 50.49(j) PID, f 53.
8/' There is absolutely no merit to NECNP's claim that the Board' erred 1 in concluding from the evidence introduced'by NECNP that EQP files {
.for the' RG-58 coaxial cables adequately documented the !
environmental qualification' of the cables. See NECNP Appeal at 23. l it is not error for a Board to ~ consider evidence admitted into the record, q o v' 9/- The Appeal Board . stated in Waterford that "in operating license 1 proceedings . . . 'the applicant's license application is in issue, not j thej adequacy of .the Staff's review of the application. An '
- Intervenor . . . may not . proceed on the basis of an allegation that !
the Staff has somehow failed in its performance." ALAB-812 at 55-56 i (footnote and citations omitted). Thus, NECNP's argument should be . j
.(FOOTNOTE CONTINUED ON NEXT PAGE) l i
An applicants' EQP is subject to audit by the Staff. Seep e.g., Staff Ex. 5; Walker testimony, ff. Tr. 494, at 5, 6. Customarily, the Staff conducts its audit of an applicant's EQP when it is satisfied, on the basis of a pre-audit review, that the EQP is sufficiently complete to be approved. PID, f 57; Walker, Tr. 702. The EQP need not 100% complete, only sufficiently complete to permit a meaningful audit to be conducted. M. The determination as to when the EQP is ready to be audited is left to the discretion of the Staff reviewer and is based on upon the results of the pre-audit review. ,i d . NECNP argues that because of the number of deficiencies it identified in the pre-audit review, the Staff should have conducted another review of Applicants' EQP before conducting its audit. See NECNP Appeal at 26. This argument properly was rejected by the Board. PID at 17. The determination as to whether an applicant's EQP is j sufficiently complete to permit a meaningful audit is not based on the j i number of deficiencies identified in the pre-audit review, but rather on ' the nature and significance of the deficiencies. Walker, Tr. 692-93, 696, 698, 701-02. At the time of the Staff's audit of Applicants' EQP, the EQP was approximately 75-80% complete. Walker, Tr. 692-93, 696, 698, i 701-02; Maldrand test. 1-Tr. 978. None of the deficiencies identified in the pre-audit review indicated that Appilcants' EQP was not " basically (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) rejected since it relies for its basis on the alleged inadequacy of the , Staff's review of Applicants' EQP, rather than the alleged inadequacy of the EQP ltself. b i
/
l
)
)
)
i adequate." PID at 17. EI Accordingly, and as the Board found, there was no need for the Staff to review again Applicants' EQP before conducting its audit. . C. NECNP's Contentions i.V, ii. A,11.B.2, And IV Properly Were Rejected . 1. The Licensing Properly denyed admission of NECNP Contention 1.V The Board properly dismissed NECNP Contention i.V which alleged ; that Applicants' program for in-service inspection of steam generator tubes was inadequate. Applicants committed to Regulatory Guide 1.83 and ! its steam generator insp'ection program was consistent with the regulatory i guidance contained therein. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), L B P-82-76, 16 NRC 1029, 1067-68 (1982). NECNP failed to offer a sufficient basis for its contention that compliance with Reg. Guide 1.83 was insufficient. Thus the Board had properly dismissed the contention. The only basis put forward by NECNP in support of this contention was its assertion that the "long history of problems with steam generators H/ One .such deficiency (which affected many of the files examined during the pre-audit review) involved the manner in which Applicant ] applied the "Arrhenius" equation to calculate the postaccident operability time of certain electrical equipment used in the plant. Walker, Tr. 679; Woodward, Tr. 482; NECNP Ex. 12 at 6. This equation " compares the test time and temperature with the time and < temprature equivalency in the plant, with a constant in the equation which is the representative of the materials of the device. " Woodward, Tr. 482. Applicants subsequently reviewed each of the . EQP files which utilized the equation and recalculated the j postaccident operability times for all equipment files using the I methodology recommended by the Staff. Walker, Tr. 682-83, 716. j Applicants agreed to correct all of the other deficiencies identified in
- 1 the pre-audit review as well. Walker, Tr. 696.
I and the ._recent accident at Ginna show a need for improved _ in-service inspection of steam generator- tubes beyond _the requirements of Reg. Guide 1.83." Seabrook, supra,16 NRC~ at -1067. lII -- However, NECNP did not identify a single deficiency in the steam generators used at Seabrook or in Applicants' Inspection program. NECNP did not even identify any deficiency in the inspection program utilized at the Ginna-facility. Nor did NECNP claim that deficiencies in the inspection proceduros called for in Reg. Guide 1.83, or those used at the Cinna facility, permitted the accident to occur. In short, the only basis for NECNP's contention was that an accident occurred at Ginna and that Reg. Guide 1.83 was used also at that facility. As such, NECNP's contention lacked the specificity required to put opposing parties on notice as to the ' precise issues they must meet and the evidence they must marshall to - ,, , defend against the contention. Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20, modified on other grounds, CLl-74-32, 8 AEC 217 (1974). On appeal, NECNP asserts that its contention should not have been dismissed because no more was required of it than a demonstration of a reasonable basis for questioning the adequacy of Reg. Guide 1.83 to fulfill the NRC regulations. NECNP Appeal at 7. While NECNP states correctly that a board must be careful not to reach the merits of a
-11/ According to NECNP, more stringent requirements were needed because the inspection program at the Ginna facility complied with Reg. Guide 1.83 but " failed to reveal-the damage which caused the accident a short time after an ins pection. " NECNP Reply to the .
Responses by the Appilcant and the NRC Staff to NECN P's Contentions at 30 (June 17,1982). j i i i j
_ contention in determining its admissibility, nevertheless it is encumbent upon an intervenor to state the reasons for its concern. Houston Light and Power Company ( Allens Creek Nuclear Generating Station, Unit .1), A LA B-590, 11 NRC 542, 548 (1980), Philadelphia Electric Company, (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 230 (1986). NECNP failed to do so. Thus, the Board concluded, as it should have based on- the information before it, that NECNP's contention lacked the specificity necessary to inform the Board or the opposing R parties of the reasons why NECNP believed that Applicants' steam generator inspection program was deficient. The contention properly was I dismissed.
- 2. The Licensing Board Properly Denied Admission Of NECNP Contention ll. A.1.
There also is no merit to NECNP's claim that the Board erred in dismissing NECNP Contention li . A.1 regarding the adequacy of j Applicants' quality assurance program. This contention stated: General Design Criterion 1 of Appendix A to 10 C.F.R. Part 50 requires the establishment and implementation of a quality assurance program. This and all General Design Criterla cover all aspects of the facility that are "important to safety. " NECNP contends that the
'Seabrook Quality Assurance Program for design and construction has - been too narrow in scope, applying only to items considered to be " safety-related," rather than to the broader category of aspects that are "impc. tant-to-sa fety . " Accordingly, the Applicant has failed to comply with CDC 1 to Appendix A.
The Board correctly determined that since this issue was encompassed in a contention litigated during the construction phase of the proceeding (to which 'NECNP was a party), litigation of the same issue in the operating license proceeding was barred by the doctrine of collateral estoppel.. Seabrook,16 NRC at 1070. As the Appeal Board has stated,
I l .I e .
- 38.-
'!it
' is settled that' the doctrine of collateral estoppel shoul'd be applied in
~
NRC adjudicatory proceedings to preclude a party to the litigation of:an
~
' issueiconsidered- and : decided in the construction permit ' proceeding from
relitigating the issue in the operating license proceeding for the same reactor'. " ' Carolina Power and Light Company, et: al. (Shearon Harris Nuclear Power. Plant), 'ALAB-837, 23 NRC 525, 537 (1986)', citing Alabama Power Company (Joseph M. Farley Nuclear ' Plant, Units 1 . and 2),.
ALAB-182, 7 AEC 210, 212-16, remanded on other grounds, CLi-74-12, 7-
' AEC 203 (1974), .and Toledo -Edison Company (Davis-Besse ' Nuclear Power
' Station,- Units 1 ~, 2. and 3),, ALAB-378, 5 ~ NRC 557, 561 (1977). For the doctrine to appl y the followi ng el ements must ex i st: (i) the entity against whom. the' estoppel is asserted must have been a party. to the earlier
'iltigation; (ii) the issue' must. be the same -as that involved in : the prior
. proceeding and it must have been actually raised, litigated and adjudged; and: (111)~ the e issue must have been- material to disposition of the first action.- Id.: accord Southern California Edison Company (San Onofre Nuclear ' Generating Station; Units 2 and 3), A LAB-673, 15 NRC 688 L (1982);' Houston Lighting and Power Company (South Texas- Project, Units' 1 :and 2), LB P-79-27, 10 NRC 563, 566 (1979), aff'd , A LAB-575, .
'11 NRC 14 (1980). Each of these elements is present in this case.
NECNP Contention ll . A.1 calls into question the adequacy of App!! cants' quality assurance program as did Contention 16 submitted by 1 r. h i y
]
l v l i NECNP during construction permit phase of this proceeding. b That i contention was interpreted "as asserting that the Appilcant has overestimated the reliability factor of the plant because of the inadequacy j of Applicant's quality assurance program." l 0 Third Prehearing Conference 1 I At the time Contention 16 was submitted, Order at 18 (June 18,1974). General Design Criteria (GDC) 1 of Appendix A to 10 C.F.R. Part 50, I 1 which deals with quality assurance programs for equipment "important to safety" had been promulgated in the same form as it appears today. < 36 Fed. Reg. 3257 (February 20,1971). ] The adequacy of Applicants' quality assurance program was litigated ;
.l during the construction permit proceeding (to which NECNP was a party) and resolved favorably to the Applicants. Public Service Company of i
New Hampshire (Seabrook Station, Units 1 and 2), LD P-76-26, ! 3 NRC 857,- 865 (1976). This determination was material to the i construction permit board's determination that construction of the Seabrook facility should be authorized. Consequently, each of the elements necessary to apply the collateral estoppel doctrine to bar litigation of NECNP's Contention ll . A.1 in the operating license proceeding was present. NECNP did not dispute this point below or on appeal. See NECNP Appeal at 9. j 12/ It is noted that NECNP Contention ll . A.1 raises issues concerning the Seabrook quality assurance program not matters concerning the execution of the program in construction which would have been , within the Jurisdiction of the Licensing Board. Pacific Gas and Electric Company (Diablo Canyon NuclearSee eg, Units 1 Plant, ) i and 2), A LA B-783, 19 NRC 573, 617, review declined, CLi-84-14, { 20 NRC 285 (1984); Id., ALAB-811, 21 NRC 1622, 1624-26 (1985);
- I Louisiana Light and P5er Company, ALAB-812, supra,
+ < > , , .[ [
- An. exception to - the collateral estoppel doctrine exists where the L
' party against _ whom the doctrine is sought to be. applied makes a strong showing of " changed circumstances or the possible - existence of some
- special public -inte' rest- factor in the particular' case." Shearon Harris, j ' supra,-'at 537; Farley, supra at 216. On appeal, NECNP asserts that the Board ' failed - to consider its claim that the collateral estoppel doctrine o should not be applied because of changed circumstances and special public Interest factors. NECNP Appeal at 9. It is not disputed that the Board
'
- did not mention such ;at claim -in rejecting NECNP's contention. However,
'as explained below, the Board's failure to do so is harmless error.
NECNP argued below, as it does here on appeal, that the issuance of ' a Regulatory Agenda on January 31, 1982 by the Commission constituted a "significant supervening development [] having a possible material bearing upon those. previously . adjudicated" and should also^ be considered an
" unusual factor [] having special public interest applications." NECNP Appeal ! at 8-9. b NECNP's reliance on the Regulatory - Agenda is L misplaced. . The . Commission had not made any change in its . regulatory requirements and had . not promulgated the proposed changes relating to i
-13/ .'Sec ' 47 Fed. Reg. 18534 (April 29, 1982). In that Agenda, the LTmmission considered proposing a rule defining with the' relationship z between Appendices A and B of 10 C.F.R. Part 50. .
This proposed - J rule would " eliminate any possible confusion over the definition of. ) the terms 'important to ' safety' and ' safety related' and provide 'a J clear 7 statement in the Commission's regulations concerning the
. applicability of the ' quality assurance criteria (in 10 C.F.R. Part 50) ,
of Appendix B to the structures, systems and components covered in j Appendix A." .; q 1
quality assurance' programs as a result of the Regulatory Agenda. b This being the case, there existed no significant supervening development which would have rendered the appilcation of the collateral estoppel doctrine inappilcable. Further, NECNP points to no safety-related
, equipment that was not subject to the quality assurance program and, hence, falls to show some " unusual factors having special public interest implications." Farley, supra, 8 AEC at 219.
In addition, the lack of specificity in this contention should also have caused its rejec tion. This lack of specificity is particularly important because thI Applicants' Preliminary Safety Analysis Report (PSAR) must set forth the methods Applicants intend to use to meet the requirements of the General Design Criteria (GDC) in 10 C.F.R. Appendix A. 10 C.F.R. 6 50.34(a)(3). Its Final Safety Analysis Report (FSAR) is also to discuss these items. 10 C.F.R. 5 50.34(b)(2) and (4). General Design Criteria 1 provides: Criterion 1-Quality Standards and records. Structures, systems, and components important to safety should be designed , fabricated, erected, and tested to quality standards commensurate with the importance of the safety functions to be performed. Where generally recognized codes and standards are used, they shall be identified and evaluated to determine their applicability, adequacy, and sufficiency and shall be supplemented or modified as necessary to assure a quality product in keeping with the required safety function. A quality assurance program shall be estabilshed and implemented 1 in order to provide adequate assurance that these structures, systems, and components will satisfactorily 14/ Proposed changes in the Commission's regulatory program are not ( changes in such a program and have no significance for regulatory purposes. Consolidated Edison Company of New York (Indian Point Station, Unit 2), A LA B-209, 7 AEC 971, 973 (1974); Southern , California Edision Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268,1 NRC 383, 407-408 (1975). l l l l
i 1 perform their ' safety functions. Appropriate records of the- design, fabrication, erection, and testing of structures, system, and components important to safety / shall be maintained by . or under the control of the
- nuclear power unit licensee throughout the life of the L
unit. . If NECNP' claimed that the PSAR or the FSAR failed to meet these 1 b . standards ' by not applying " quality standards commensurate with the safety function to be performed", it was encumbent upon NECNP to state
-l 1 ' "the basis [of this) contention with reasonable specificity." See 10' 1 l
C.F.R. 5 2.714(b). NECNP did not. do so here, but stated only that ) 1 Applicants' ' quality assurance program "has been too narrow in scope, j l applying only to items considered to be ' safety-related.'" The fact . that Appilcants had a Quality Assurance Program for " safety-related" work ; i under Appendix B to 10 C.F.R. Part 50, does not provide a basis to contend that Applicants did not also meet the requirements. of GDC of ee
]
Appendix A for a quality assurance program for items important to safety
" commensurate with the importance of the safety function' to be performed. " The contention submitted did not set forth a basis with -
reasonable specificity to alert the parties and focus the . litigation on . I wh' ether . Applicants were or were not applying " quality standards l l commensurate with the function to be performed to any equipment that , i: ! l was covered by Appendix A, but not by Appendix B. . NECNP Contention l f-j' il. A.2 thus should have been rejected for fal!!ng to set out a basis with
.. " reasonable specificity" why Applicants had falk d to meet regulatory requirements. ,
There is no basis to ' NECNP's assertion that the scope of the
> Commission's quality assurance standards changed as a result of the Regulatory Agenda. NECNP's reliance on the Regulatory Agenda was not ,
i
sufficient to carry its burden of showing a material change in circumstances or some special public interest factor which outweighed the public interest in applying the collateral estoppel doctrine. The contention, further, lacked specificity. The Board's denial of NECNP Contention li. A.1, was correct.
- 3. The Licensing Board Properly Denied Admission Of NECNP Contention ll.B.2.
NECNP asserts the Licensing Board erred in dismissing this. contention regarding the scope of the Applicants' operations quality i assurance program. Contention ll.B.2 stated: The Quality Assurance Program for Operations extends only to matters considered to be " safety-related," and not to all structures, systems, and components "important ' to safety. " Examples are discussed In Contention ll. A.1. See Seabrook, supra,16 NRC at 1072. The Board rejected this contention on the ground that it lacked specificity. In that the contention did not list items that were excluded ' from the QA program. 16 NRC at 1072. b The Commision has held that contentions seeking to raise issues regarding an applicant's quality assurance program applicable to items "important to safety" but which "do 15/ -As the Appeal Board has observed, one of the purposes of the
~ - requirement that a contention be set forth with reasonable specificity is to " assure at the pleading stage that the hearing process is not improperly invoked -- for example, by challeging statutory requirements . . . Other purposes are to put the parties on notice of what issues they will have to defend or oppose, and to assure the issues raised are appropriate for litigation in the particular ,
proceeding. " Philadelphia Electric Company (Limerick Generating Stations, Units 1 and 2), ALAB-845, 24 NRC 220, 230.
l not ide'ntify any particular structures, systems or components for which it is cialmed that the quality assurance program was not commensurate with ' their . safety function," should be dismissed for lack of the specificity l required by 10 C.F.R. 6 2.714(a). Pacific Gas and Electric Company ) l
. (Diablo Canyon Nuclear Power Plant , Units .1 and 2), CLI-84-14, !
20 NRC 285, 286 (1984). ] l NECNP's contention did not identify a single item or even suggest a ] i category of items "important to safety" that was not included in ! 1 Applicants! operations quality assurance program. Counsel for NECNP i conceded as much at the Second Prehearing Conference:
. . . the Regulatory Agenda in which the Commission ;
discussed this issue and- the language itself of ; importance to safety is not specific. We need to get i' into the discovery to determine in fact what items that are important to safety as a matter of fact, have not been included under the operations QA program. Tr. 452. Although NECNP asserts on appeal that it did in fact identify "the types of equipment and nature of equipment classification that was at issue in this contention," NECNP Appeal at 10, the record reveals that it j did not identify any item or class of items that was "important to safety" which Applicants had excluded from its operations quality assurance ; l program. b The record indicates that NECNP simply was unable to l
-16/ See NECNP's Reply to the Responses by the Applicant and the NRC s 5taff to NECNP'S Contentions (June 17, 1982). NECNP stated that it
" considers the examples given in Contention ll. A.1 to be indicators of a pervasive classification deficiency, and not to be limits upon )
. this ' contention." Id. at 36. Thus, even the examples cited in I Contention li. A.1 fa'ITed to put the Board or the opposing parties on notice as which items, if any, important to safety NECNP contended '
'had been excluded improperly from ' App!! cants' operations quality assurance program.
identify a. single' item important to safety that was excluded from Applicants' quality assurance program. As counsel for NECNP stated at the prehearing conference, "[wle need to get into discovery to determine
- in fact what items that are important to safety . . . have not been included _ under the operations QA program. " Tr. 452. Discovery, however, is intended to enable a party to obtain evidence to support its j allegations, not' to obtain information to formulate an allegation. Hence, a contention that- falls to satisfy the specificity and basis requirements of
- 10. C.F.R. 6 2.714(b) 'cannot 'be cured through the discovery process. It-must .be rejected. As the Appeal Board has stated, it is well settled l that:
Nothing in the terms of:Section 2.714(b) expilcitly vests a licensing - board with the power ' to admit , an unacceptably vague or imprecise. contention condi-tionally, subject to later revision upon receipt of additional information. Rather, as we read it, the Section conveys the clear' message that, in order to be admitted, the contention must meet the " requirements of this [Section]", ' i.e. , it must .' set forth its bases "with reasonable specificity" . . . . Given the terms and history of Section 2.714(a), we are compelled to the conclusion that a licensing board is not authorized to , admit conditionally, for any- reason, a contention that falls short of meeting the specificity requirements. Duke Power Company, (Catawba Nuclear Station, Units 1 and 2),
- ALAB-687,16 NRC 460, 466-467 (1982), modified, CLl-83-19,17 NRC 1041 i J
(1983). The Appeal Board made clear that a contention must be ! i admissible on its own merit, unaided by discovery
. 1
[N]either Section 189a of the Act nor Section 2.714 of the Rules of Practice permits the filing of a vague,
. unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or staff.
1
;3 Id. at 468. By its own admission, NECNP was unable to specify .a single item important- to safety that was not included in Applicants' operations quality assurance program, it is clear that the Board would have erred ~
had it permitted NECNP to engage in discovery to cure the deficiencies in its contention. ,ld . ; see Commonwealth Edison Company (Braidwood ! Station, Units 1 and 2) Commission Order at 10 (March 20, 1986) (unpublished) . II- The Board's rejection of NECNP Contention li.B.2- . was consistent with the Commission's procedural regulations and case law. Accordingly, the contention properly was rejected. SI 17/ Further, it should be noted that NECNP did not need discovery.
~-
The PSAR, FSAR and the Staff's Safety Evaluation Report are pubite - documents. if NECNP felt that any matter in those documents did not receive proper quality assurance commensurate with its importance to safety, it could have drafted a contention identifying that equipment and stating what additional quality assurance l measures were necessary. Similarly, if NECNP believed any item of equipment was not included in the list in the FSAR of items subject to the Quality Assurance Program provided for in Appendix B to 10 C.F.R. Part 50, it could have framed a contention particularly identifying that equipment. 18/ Applicants state in their brief that they have "always constreed
'~
'important to safety' as having the same definition as 'sa fety related'." Applicants' Brief on Appeal From Partial initial Decision of the Atomic Safety and Licensing Board at 9 (June 3,1987). The terms are not synonymous. "important to safety" is defined la the introduction to Appendix A to 10 C.F.R. Part 50 to include a larger class of equipment than " safety-related" equipment. See,
~
Long Island Lighting Company (Shoreham Nuclear Station, Unit TT, CLi-84-9, 19 NRC 1323, 1325, upon remand, ALAB-788, 20 NRC 1102,1115,1125-26 (1984); see also, SECY-86-164 (May 29, 1986). Quality Assurance programs are required for "important to - safety" as well as " safety-related" equipment, although those programs are not the same. Compare 10 C.F.R. Part 50 Appendix A, General Design Criteria 1, with, 10 C.F.R. Part 50 - Appendix B; see Shoreham, A LAB-788, 2(TTTRC at 1117-18. The fault in NECNPT proposed contention was not that all "important to safety" equipment is " safety-related", but that intervenor did not , l (FOOTNOTE CONTINUED ON NEXT PAGE) 1 i
V' i& ,_ J ([
-n K ,,
*?
_W j lj j , .
, 9,.C
, y ,./ . '
' ~
may
,. M 4.- .The- Licensing Board. Prpoerly Denied Admission Of' NECNP
//
f/ v / Contention IV. ~
\ .
i NECNP asserts the Licensing Board erred in, dbmissing Contention IV which alleged. Applicants must es ablish. a rprveillane and maintenance
. /. i .,
program. to . prevent ' aquatic organisms from accumulating Jn the cooling
- system at Seabrook. The' basis fortIds contentior. s aLMay 19, 1982 a
.j Federal Regls'ter n' otic'e in which Commission expressed concern over the -
~
accumulation of aqGo e organlImsin reactor cooling , systems. NECNP Appeal at 10-1), ' In denying admissLnn.of this contsntion, the Board noted: . The -. conter/J@r) d band"Ln' the assumption that the Atlantic Ocph and the 20oling water -tunnt.!s are a ,.; ,f/ , , system ' essential;3o safetyr , . . There is,4ri ultimate j 'n- -
/ heat sink at Seabro6k'tht ty something other than the
- f Atlantic ' Ocean.t A s$rlal'cpoling tower,;was built for
~
x this purpose, j q
' 16 NRC at 1075. Thus, the B6ard rejected the contention because it
/ .
f ; lacked an adequate basis. /nlECNP argues that the Board improperly i decided the merits of the contention in making this determination. NECNP
+ J
!- i/ Appeal at 12. . ' i NECNP appears to have misunderstood the cooling system at- . u Seabrook in positing that the cooling tunnels were the ultimate heat sink. ^ in f t, the availability of the cooling tunnels wouU not affect safety
./ .,
since the ultimate heat sink (the c'uolihg tower) would be used as the < 6 2
-(FOOTNOTE CONTINUED FROM PRt!VIOUS PAGE) ' /
designate which equipment it believed fall [d to comply with the quality assurance requirements of GDC 1 of Appendix A. See, Pacific' Gas and Electric Company (f;@blo Canyon Nuclear Power Plant), CLI-84-14, 20 NRC at 286. . 3 r f ~ t t
o , 1 c ,.
)
1 path for heat ' rejection If for1 some reason the tunnels were unavailable. j i See . FSAR at' 5 9.2.5. That the tunnels may. be used as' an optional
]
source of cooling' water to the heat exchangers does not require that they j be protected . agairist failure. It 'should be emphasized that seawater is '
, not circulated into the safety! systems of Seabrook', but is only circulated
' through' a heat exchanger; the service cooling water is fresh. See FSAR '
l Fig. 9.2-7 and FSAR 6 10.4.5.3. ; in' light - of these.. considerations, there was insufficient basis to l NECNP's contention that the public health or safety would be placed at risk. unless . Applicants' institued a program to prevent "the accumulation of m # wks, other organisms, . and debris" in ' its cooling systems. In making -this' determination. the Board did not decide the merits of the contention. 'The Board merely took into account, as it could, the actual s e. , design of the. Seabrook facility in evaluating whether NECNP's Contention I.V satisfied the basis requirements of 10 C.F.R. 62.714. CONCLUSION 1 For the reasons stated in this brief, the appeals of SAPL, Massachusetts, and NECNP should be denied and, except to the extent stayed by virtue of CLi-87-02, LBP-87-10 should be affirmed. Respectfully submitted,. s Gregory Alan Berry 7 Counsel for NRC Staff Dated at Bethesda, Maryland , this 22nd day of June,1987 s
^
~
O[ MQ ; - M9 + N ,
' ~ '
D0%C1ED g' '
- Umc.
"M- LUNITED STATES OF AMERICA .
A . NUCLEAR REGULATORY COMMISSION- 87 JUN 23 P3 :47 : i ,
~ '
.BEFORE THE ATOMIC' SAFETY. AND LICENSING APPEAL BOARhM/ ('g-
, ?n na. '
- . 7 .. ._
m x, ' f ri the' Matter of.' )
)' Docket: Nos'. 50-443 OL-01
- PUBLIC SERVICE' COMPANY--OF' -)' . . 50-444 OL - 1 NEW HAMPSHIRE, et al. ) On-site Emergency Planning and Safety issues'
, )
'(Seabrook Station, Units '1; and 2. )~
l?
' CERTIFICATE OF SERVICE e'r 11 'herebyLcertify that cople's of "NRC STAFF RESPONSE' TO.' APPEALS . '
, , : OF LBP-87-10 'BY SEACOAST ANTI-POLLUTION LEAGUE, NEW ENGLAND .
- COALITION: ON. NUCLEAR POWEPG :AND' THE COMMONWEALTH:OF MASSACHUSETTS" w , Lin the above-captioned proceeding 'have; been served on. the following byi w ideposi.t 1.n the United States mail, first class or,?as ; indicated' by! an
' asterisk,' by; deposit:in . the Nuclear ' Regulatory Commission's internal .
mail: system,f.this' 22nd day _ of June,1987 . 1
'Sheldon .j[- Wolfe,c Esq. , Chairman * ~ Dr. Emmeth ; A. ' Luebke*
' Administrative -Judge' . .
Administrative ~ Judge . Atomic Safety' and. Licensing Board Atomic-Safety and Licensing Board q
' U.S. _Nucleari Regulatory Commission - - U.Sr Nuclear. Regulatory Commission .l Washington, DC 20555 .Washington, - DC . ;20555
- Dr.-~ Jerry Harbour.* - Ms. ~ Carol Sneider, Esq.: )
' Administrative Judge' , .
Assistant Attorney General 4 JAtomic Safety and Licensing Board Office of the Attorney General {
..U;S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, DC . 20555 : Boston, MA 02108 Beverly .Hollingworth , Richard . A. Hampe, Esq.
209.Winnacunnet Road . New Hampshire Civil Defense Agency _. Hampton, NH' 03842 107 Pleasant Street Concord , - N H 03301 Sandra Gavutis, Chairman Calvin A.' Canney, City Manager
' Board of Selectmen City Hall .
v 6 .. ' , RFD.'1 Box 1154 _ 126 Daniel Street 1 Y" 'Kensington, NH ' 03827 - Portsmouth, NH 03801 ; h j a
-1
. 1 b .f <
4 Stephen E. _ Merrill Paul McEachern, Esq; !f Attorney . General 1 Matthew T; Brock, Esq. LGeorge Dana Bisbee Shaines & McEachern p - Assistant Attorney General . . 25 Maplewood Avenue
- Office of the Attorney General P.O.~ Box 360 ,. I 25 Capitol . Street ' .
Portsmouth, NH 03801 Concord, NH . 03301
'Roberta. C. Pevear
. Angle Machiros, Chairman' ' State Representative
' Doard of Selectmen ' Town of Hampton Falls-
' 25 -High Road- Drinkwater Road Newbury, MA. 09150 Hampton Falls, NH 03844.
Allen Lampert Mr. . Robert J. Harrison-
~ Civil Defense ' Director. President and Chief Executive Officer
' Town of Brentwood ' Public Service Co. of New Hampshire 20 ' Franklin Street P.O. Box 330 Exeter, NH 03833' Manchester, NH 03105 Charles P. Graham, Esq. . Robert A. Backus, Esq.
McKay, Murphy and Graham Backus, Meyer 6 -Solomon 100 Main Street 116 Lowell Street 1 Amesbury, MA. 01913 - Manchester, NH 03106 l Diane Curran, Esq.- Philip Ahren, Esq. Harmon~.S Weiss Assistant Attorney General 2001 LS Street, NW . Office of the Attorney General Suite 430 State House Station #6
' Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas Thomas G. Dignan Jr. , Esq.
Federal Emergency Management Agency Ropes & Gray . . . 442 J.W. McCormack .(POCH)' 225' Franklin Street Boston, MA 02109' Boston, MA 02110 H.J. Flynn, Esq. William Armstrong Assistant General' Counsel Civil Defense Director L Federal Emergency Management Agency Town of Exeter. . 500 C Street, SW.
- 10. Front Street i Washington, DC 20472 Exeter, NH~ 03833 ,
Atomic Safety and Licensing Atomic Safety and Licensing Appeal. Panel *. Board
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission i Washington, DC 20555 Washington, DC 20555 s
F
- p. : .
y
-s
- Jane Doughty . Docketing and Service Section*
Seacoast Anti-Pollution League Office of the Secretary . 5 Market Street' , U.S. Nuclear Regulatory Commission-
^ Portsmouth,- NH ; 03801 Washington, > DC 20555 3 .Maynard L. Young, . Chairman . William S.. Lord
- Board'of Selectmen Board of Selectmen
- 10 Central Road i Town Hall - Friend Street
'.. : South Hampton, NH 03287 Amesbury, MA 01913 Michael Santosuosso, Chairman PeterJJ. Matthews, Mayor City Hall
. Board of Selectmen
' South Hampton, NH 03287-Newburyport,' MN 09150
_Mr. Robert Carrigg, Chairman ' Judith H. Mizner, Esq.
- Board of Selectmen Silverglate, Gertner, Baker -
Town Office. Fine and Good
- Atlantic Avenue . 88 Broad Street-North Hampton, NH 03862' Boston, MA' 02110 R. . K. L Gad : lll,' Esq. . Mrs. Anne' E. Goodman, Chairman Ropes'& Gray ~ Board of Selectmen -
--225 Franklin-Street > 13 15. Newmarket Road
- Boston , . MN 02110 Durham, NH 03824-Gary W. Holmes, Esq.
Holmes S Ellis 47 Winnacunnet Road Hampton,; NH- ,03842 , Edwin J. Is . t Deputy sistant General Counsel
- s .-
o l !. .t}}