ML20235K814
| ML20235K814 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/01/1987 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#487-4518 ALAB-875, OL-1, NUDOCS 8710050241 | |
| Download: ML20235K814 (51) | |
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g ooarn:n 7 22 00T 119875- 5H DOCU"MG S UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION / [kfr$7 sO it ATOMIC SAFETY AND LICENSING APPEAL BOA fg g, Administrative Judges:
Alan S. Rosenthal, Chairman October 1, 1967 l Gary J. Edles (ALAB-875) l Howard A. Wilber
(
) SERVED OCT ~11987 In the Matter of )
) I PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al. ) 50-444-OL-1
)
(Seabrook Station, Units 1 ) (Onsite Emergency Planning and 2) ) and Safety Issues)
)
Donald S. Bronstein, Boston, (massachusetts (with whom Carol S. Sneider and Allan R. Fierce, Boston, Massachusetts, were on the brief), for the intervenor James M. Shannon, Attorney General of Massachusetts.
Diane Curran, Washington, D.C., for the intervenor New
~ ' England Coalition on Nuclear Pollution.
Robert A. Backus, Manchester, New Hampshire, for the intervenor Seacoast Anti-Pollution League.
Thomas G. Dignan, Jr., Boston, Massachusetts (with whcm George H. Lewald and Kathryn A. Selleck, Boston, Massachusetts, were on the brief), for the applicants Public Service Company of New Hampshire, et al.
Edwin J. Reis (Gregory Alan Berry on the brief) for the Nuclear Regulatory Commission staff.
DECISION Before us are the appeals of interveners Attorney General of Massachusetts (on behalf of that Commonwealth),
New England Coalition on Nuclear Pollution (Coalition),
Seacoast Anti-Pollution League (SAPL), and Town of Hampton, New Hampshire from the Licensing Board's March 25, 1987 partial initial decision in the onsite emergency planning V
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and safety issues phase of this operating license proceeding involving the Seabrook nuclear facility.1 In that decision, the Board authorized the issuance of a license for low-power operation (up to five percent of rated power) . The appeals challenge not only determinations made in the decision but, asbell, several earlier interlocutory rulings.2 l
Some, but not all, of the claims of error now at hand )
i were also presented to us in the context of the interveners' i applications for a stay pendente 1,ite of the effectiveness I
of the March 25 decision. In exploring whether the j l
interveners had demonstrated a likelihood of success on the !
I nerits of their appeals (one of the traditional stay criterin now embodied in the Cotr, mission's Rules of Practice),3 we examined each of those claims. Our
)
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See LBP-87-10, 25 NRC 177. The phase of the j proceeding involving offsite emergency planning issues l remains before a differently constituted Licensing Board. ,
2 In contrast to the other three intervenor appellant:
Hampton did not file a brief in support of its appeal.
Rather, in a May 5, 1987 submission in connection with its application for a stay of the effectiveness of the partial initial decision, Hampton "relie[d] upon and incorporate [d]
by reference" the appellate briefs of the Attorney General
"[b]y way of further support for Ithe stay] request." Town of Hampton's Memorandum in Support of Application for a Ste; of Licensing Board Order Authorizing Issuance of a License l
to Conduct Low Power Operation at 2. That action scarcely was a satisfactory substitute for a brief in support of its appeal from the decision and Hampton did not participate ir the oral argument.
See 10 CFR 2.788(e).
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conclusion was that the interveners had failed to establish the requisite degree of probability that one or more of the claims would succeed.4 In reaching that conclusion, we stressed that it did-not follow that the appeals were "necessarily doomed to failure." As we observed:
To begin with, even on the issues raised in the stay applications, it is possible that a full briefing will persuade us that the interveners should prevail. All that we now decide is that the stay papers do not-themselves demonstrate the requisite high probability of such success.
Moreover, we do not consider on a stay application any possible Licensing Board error not asserted by the movants. Presumably, the interveners will advance in their appellate briefs claims of error that, perhaps because of the ten-page limit imposed by 10 CFR 2.788 (g) , were not included in their stay applications 4
See ALAB-865, 25 NRC , (May 8, 1987) (slip opinion at 14-27). Determining that a balancing of all fota of the stay criteria set forth in 10 CFR 2.788(e) did not favor a grant of the sought relief, we denied the applications. Although they were thereafter renewed before the Commission, it has not been necessary for that body to act upon them. This is because, on June 11, 1987, the Commission entered an order denying the applicants' motion to vacate a previously-entered order that, by reason or offsite emergency response planning considerations having nothing to do with the issues considered and decided in the March 25 partial initial decision, barred the authorization of low-power Scabrook operation. See CLI-87-03, 25 NRC .
As matters now stand, irrespective of the outcome of the appellate review of the partial initial decision, such operation cannot be commenced unless and until the Commission accepts a recent applicants' filing as constituting a " bona fide utility offsite emergency plan ict Massachusetts that satisfies the Commission's threshold requirements." Id. at (slip opinion at 1). See infra n.102.
5 (slip opinion at 27).
ALAB-865, supra, 25 NRC at
4 It has turned out that full briefing and oral argument of the appeals have provided no cause to alter our views on the previously considered issues.6 As forecast, however, the interveners advanced in their briefs and at argument several assertions not presented in support of the stay applications. We have found some of those assertions to be meritorious and to require a remand to the Licensing Board for further proceedings.
We now examine the claims before us seriatim.
A. As the Coalition and the Attorney General acknowledge, 10 CFR 50.47(d) explicitly authorizes the issuance of a low-power operating license in advance of NRC or Federal Emergency Management Agency " review, findings, or determinations concerning the state of offsite cmergency preparedness or the adequacy of and capability to implement State and local offsite emergency plans." Notwithstanding this provision, both of those parties maintain that the Licensing Board should not have authorized the issuance of such a license here prior to the resolution of the still pending offsite emergency planning issues. In the view of the Coalition, section 50.47(d) deprives it of hearing 6
Shortly after oral argument, however, we entered an order with respect to the two such issues concerned with the adequacy of siren sound levels in certain portions of the Seabrook plume exposure pathway emergency planning zone.
See infra pp. 43-47.
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rights guaranteed by.section 189a.(1) of the Atomic Energy Act and, accordingly, is invalid. For his part, the Attorney General insists that the Licensing Board erred in denying his petition seeking a waiver under 10 CFR 2.758 of the application of section 50.47(d) in this case.
- 1. The Coalition's claim need not detain us long. As we noted in denying the stay applications,8 we lack the authority to strike down a Commission regulation.9 Within the agency, only the Commission itself has that power.
Should the Coalition be dissatisfied with the ultimate result reached in this decision, it will, of course, be free to renew its argument respecting the invalidity of section 50.47(d) in a petition seeking further Commission review.
- 2. The Attorney General's insistence that his waiver petition was erroneously denied stands on scant firmer footing. In light of the terms of section 2.758(b), the provision in the Rules of Practice concerned with waivers c.
regulations, that petition necessarily rested on the 7
42 U.S.C. 2239 (a) (1) .
8 (slip opinion at See ALAB-865, supra, 25 NRC at 15).
' See 10 CFR 2.758 (a) ; Metropolitan Edison Co. (Thret Mile Island Nuclear Station, Unit No. 2), ALAB-456, 7 NRC 63, 65, 67 n.3 (1978); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 ano 2), ALAB-410, 5 NEC 1398, 1402 (1977).
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proposition:that "special circumstances with respect to the subject-matter of.the particular proceeding are such that application of the . . . regulation . . . would not serve
- the: purposes for which the . . . regulation was adopted."
Upon receipt of the petition and all submissions;in support of or in opposition to.it, it became the Licensing Board's
, duty to determine whether the Attorney General had made a prima facie showing to that effect, with the consequence that the matter of the grant of the waiver petition should j be certified directly to the Commission for ultimate action. O That Board answered that question in the negative and, accordingly, denied the petition.11 An. examination of the Attorney General's explanation.of the foundation of hie waiver theory makes manifest that this disposition was compelled.
'In his brief to us,-the Attorney General directs 3 attention specj.fically to paragraph 11 of his filing below, which is said by him to.contain the " gravamen" of tl.e waiver cla'im.12 That paragraph alleges that "there is no assurance ]
i 10 See 10.CFR 2.758(d).
11 See LBP-86-25, 24 NRC 141 (1986).
12 Attorney General James M. Shannon's Brief . in Support of Roversal of Licensing Board's Partial Initial Decision Authorizing Issuance of a Low-Power Operating License (May 6, 1987) [hereafter " Attorney General's Brief") at 30. ,
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7 l-that [Seabrook] operation at full power will ever occur and if it does occur will not occur for nearly a year, or possibly years." Thus, the paragraph goes on to assert, "any possible benefits to be attained from commencing low-power testing at this time will be far outweighed by the significant and irreversible adverse consequences of such operation."
Given these asserted facts, the Attorney General tells us, the waiver criterion set forth in section 2.758(b) is met. Invoking a 1985 Commission decision in Shoreham as his 1
source, the Attorney' General observes that "[t]he purpose of allowing low-power operation to commence in advance of determination of emergency planning issues is to allow for the testing and' evaluation of plant systems so that if a problem is discovered full-power operation will not be delayed."14 Such a purpose, the argument proceeds, is not served "where, as here, full-power operation is at least cr.<
year away, if ever."15 This is because " low-power operatica typically lasts only three or four months and lengthy delays between issuance of a low-power (license] and a full-power 13 Long Island Lighting Co. (Shoreham Nuclear Power Station), CLI-85-12, 21 NRC 1587, 1590.
14 Attorney General's Erief at 31. i 15 Ibid.
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8 license require that certain tests be performed again."16 In assessing the substantiality of this chain of reasoning, we may assume without deciding.that, as he maintains, the Attorney General established below by affidavit that, inter alia, full-power operation is "at least a year away" because of the refusal of Massachusetts-communities and officials to participate in emergency planning for that portion of the Seabrook plume exposure pathway emergency planning zone (EPZ) located within the Commonwealth. For indulging in such an assumption does not advance the Attorney General's cause. Crucial to his thesis is the unspoken premise that any problem detected during low-power testing will be susceptible of rectification c i
within a matter of a few months after that testing takes place. But in the very Shoreham decision to which the Attorney General pointed in identifying the " purpose of allowing low-power operation to commence in advance of determination of emergency planning issues," the Commissier.
exploded that premise. Immediately after stating that the
" primary benefit of early low-power operation is that it will allow the early discovery and correction of unforescer.
16 Ibid.
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but possible problems which may prevent or delay full-power operation," the Commission added the following fcetnote:
l We note that low-power test programs for recently licensed reactors have identified prcblems which have taken many months to correct and consequently have delayed full-power operation. At Palo Verde, a pressurized water reacter, for exaiople, a coolant pump design problem identified during7 initial testing took over 1 year to correct.
In short, as the Commission itself has laid bare, experience teaches that early testing may fulfill its intended purpose of avoiding possible delay in full-power operation even if conducted a year or more in advance of the earliest time at which such operation might be authorized.
It need be added only that, as observed in our stay opinion,10 in that same decision the Commission laid to rest any suggestion that the possibility that full-power operation might never be authorized could serve as a sufficient basis for precluding low-power testing.19 1
CLI-85-12, supra, 21 NRC at 1590 and n.3.
18 See ALAB-865, supra, 25 NRC at (slip opinion at 30-31).
' In common with the Coalitior., the Attorney General j asserts that section 50.47(d) is invalid because it is inconsistent with hearing rights guaranteed by the Atomic Energy Act. Although recognizing that 10 CFR 2.758(a) j precluded the Licensing Board from entertaining a challenge j to that section, the Attorney General nonetheless urges tnat j the " Board could have, and should have, considered arguments J set forth by the interveners concerning the invalidity of the regulation in deciding whether waiver was warranted." l (Footnote Continuco) l l
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10 B. In the discharge of its responsibilities under the National Environmental Policy Act (NEPA), the Commission requires that environmental impact statements (EIS) be prepared by its staff with. regard to every nuclear power facility. The basic statement is developed in connection with the construction permit application. On the operating license level, a second statement is issued which in essence is a supplementation of the earlier statement.20 In fulfillment of this requirement, the staff issued in December 1982 an.EIS (labeled a final environmental statement or FES) covering Seabrook operation. 'The Attorney General contends that, because there have been changed l
l circumstances since that time, the staff was obliged to prepare yet another separate or supplemental EIS, addressed 1
to. low-power operation, prior to the issuance of a license 1
authorizing.such operation.
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On this score, we are referred specifically to the September 1986 announcement of the Governor of Massachusetts to the effect that, because of his conclusion that the l (Footnote Continued)
Attorney General's Brief at 32 n.11. This claim is without merit. Section 2.758(b) expressly provides that the " sole ground" for a waiver is that, in the "special circumstances" of the particular proceeding, the application of the regulation sought to be waived would not serve the purposes for which that regulation was adopted.
20 See 10 CFR 51.20, 51.75, 51.95.
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l Seabrook EPZ could not be adequately evacuated, he would not submit emergency response plans for the Commonwealth. This decision, the Attorney General insists, poses "a I
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licensure ~" . A6 the Attorney General sees it, the 1
resultant uncertainty that full-power Seabrook operation i I
will ever take place obligated the staff in the fulfillment of its NEPA responsibilities "to weigh the costs and benefits of low-power operation."22 Inasmuch as the previously issued FES assertedly did not undertake that task, the Attorney General reasons that a supplemental statement is necessary.
The principal and decisive difficulty with this line or argument is that, as obrerved in our stay decision,23 it was examined and re]ected in the Shoreham proceeding not merely by the Commission but by the Court of Appeals for the District of Columbia Circuit as well. 4 The Attorney i General acknowledges this consideration but offers a factual Attorney General's Brief at 9.
n p' Id . at 11.
' i 23 See ALAB-865, supra, 25 NRC at (slip opinion at 14-15).
24 See CLI-85-12, supra, 21 NRC at 1589; CLI-84-9, 19 NRC 1323, 1326 (1984); Cuomo v. NRC, 772 F.2d 972, 974-76 (D.C. Cir. 1985).
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12 distinction between that case and this one: whereas )
Massachusetts and its political subdivisions within the_ !
Seabrook EPZ "have stated their refusal to participate [in emergency planning] cogently and consistently," the county in which the Shoreham EPZ is located had adopted'an
" arguably equivocal stance" which indicated that it "might well cooperate in emergency' planning." That attempt to .
avoid the impact of the Shoreham outcome.is unavailing. ,
True, the Commission did take note of an apparent difference of opinion-between the Suffolk County Attorney and some r.
county legislators respecting whether the county would participate in the Shoreham emergency planning process.26 But immediately thereafter, it stated that "[r]egardless of what is 'the County's' position . . . we do not believe that uncertainty over the pending full-power issues mandates a Supplemental Environmental Impact Statement or some renewec.
cost / benefit analysis."
The short of the matter is that there is nothing in t!.. j decisions of the Commission and District of Columbia Circuj1 to suggest that either tribunal hinged its conclusion that -
supplemental EIS was not mandated by NEPA upon a belief that l Attorney General's Brief at 13.
20 See CLI-85-12, supra, 21 NhC at 1588.
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Id. at 1589.
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13 the obstacles to full-power Shoreham operation would likely 8
be soon removed. Nor, as we stressed in the stay decision,29 is there cause to hazard a guess respecting the ,
relative degrees of uncertainty that Shoreham and Seabrook j will ever operate. To repeat what was there said, such speculation is "not decisionally relevant." O C. At the threshold, the Licensing Board re]ected a number of the contentions advanced by the Coalition. On its appeal, the Coalition maintains that four of those rejected contentions should have been accepted by the Board for 1
litigation. We agree as to two of the contentions.
- 1. Appendix A to 10 CFR Part 50'contains a number of general design criteria (GDC) that must be met by nuclear power' facilities. Among others, GDC 14, 15, 31 and 32 are concerned with the maintenance of the integrity of the 28 At oral argument, the Attorney General pointed out.
that the Cuomo decision was rendered by the Court of Appeaa j on a stay motion and that there has been no " ultimate J determination" on the merits of the controversy in that case. App. Tr. 83. But that consideration does not mean 4 that the conclusions reached in the decision are not I entitled to our respect. In any event, we are obliged, given the absence of a contrary judicial determination, to accord full effect to applicable Commission pronouncements. !
' See ALAB-865, Eupra, 25 NRC at (slip opinion at 7-8).
O d . at _ (slip opinion at 8).
J_d )
We need not and do not consider the rejection of those contentions not embraced by the Coalition's appeal.
14 reactor coolant pressure boundary. The rupture of a steam generator tube is one of the events that will cause a breach of that boundary. !
Coalition Contention I.V. asserted that the applicants had not demonstrated compliance with GDC 14, 15, 31 and 32
" insofar and to the extent that those GDC require a program l for the inservice inspection of steam generator tubes."32 This claim rested principally on the proposition that the applicants' commitment to follow the procedures set forth in l Revision 1 of Regulatory Guide 1.83, entitled " Inservice Inspection of Pressurized Water Reactor Steam Generator Tubes," is not enough to ensure the integrity of the Seabrook steam generator tubes. To support this proposition, the Coalition pointed to the 1982 steam generator tube rupture at the Ginna nuclear facility, which had utilized the Regulatory Guide 1.83 procedures in the 3
surveillance of its tubes.
Tr. 419 (July 15, 1982).
33 Tr. 419-20 (July 15, 1982). See also NECNP Supplemental Petition for Leave to Intervene (April 21, 1982) at 51-52; NUREG-0896, " Safety Evaluation Report Related to the Operation of Seabrook Station, Units 1 and e" (March 1983) at 5-20; and NUREG-0909, "NRC Report on the January 25, 1982 Steam Generator Tube Rupture at R.E. Ginna Nuclear Power Plant," (April 1982) at 7-8 to 7-9.
In addition to its reliance upon the Ginna incident, the Coalition noted the occurrence or problems at other (Footnote Continuedi
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r on September 13, 1982, the Licensing Board rejected the contention.34 It held that:
Regulatory guides are not mandatory bLt when an applicant voluntarily accepts one as a method of complying with GDC, then a Petitioner cannCt be permitted to argue that this one method of complying with this Commission's requirement would not be sufficient te meet its demands.35 In a subsequent decision responding to the Coalition's objection to that ruling, the Board stated that:
Even if Applicants' compliance with Reg. Guide 1.83 is not conclusive as to compliance with the underlying regulations (10 CFR Part 50, App. A, j GDC 14, 15, 31, and 32), it is at least presumptive. Moreover, Interveners have failed to specify how Applicants are in non-compliance, and thus have fai requirements.ggd to satisfy the pleading We agree with the Coalition that neither this reasoning nor the result can stand and, thus, that Contention I.V.
must now be admitted. To begin with, it is manifest that regulatory guides do not have the force of regulations.
Rather, as explained in our River Bend decision:
For their part, and as their title suggests, regulatory guides are issued for the basic purpose of providing guidance to applicants with respect to, inter alia, acceptable modes of conforming to (Footnote Continued) facilities possessing steam generators produced by the concern that manufactured both the Ginna and Seabrook steam generators.
4 See LBP-82-76, 16 NRC 1029, 1067-68 (1982). l 35 Id. at 1068.
6 LBP-82-106, 16 NRC 1649, 1659 (1982).
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l specific regulatory requirements. But they are not regulations per se and are not entitled to be i treated as.such; they need not be followed by l applicants; and they do not purport to represent that they set forth the only satisfactory method I of meeting a specific regulatory requirement.
Indeed, quite the contrary is true; the cover page of each guide states that Methods and solutions different trom those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance I
or continuance of a permit or license by the Commission.
In other words, a guide sets forth one, but not necessarily the only, method which an applicant may choose to employ in order to conform to a regulatory standard. While the staff will accept such a method, an applicant is not precluded from t utilizing some other method which it can l demonstrate is appropriate in the phrticular case. 1 Nor are other parties precluded from demonstrating that the prescribed method is inadequate in the particular circumstances of the case."'
In light of this consideration, the question becomes whether the Coalition's reference to the Ginna accident provided a sufficiently specific basis for the contention.
We entertain no difficulty in answering this question in the affirmative. Despite its observanca of the procedures set forth in Regulatory Guide 1.83, the Ginna facility I
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37 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 772-73 (1977) (emphasis l supplied) . (footnote omitted) . See also Consumers Power Co. l (Big Rock Point Nuclear Plant) , ALAB-725, 17 NRC 562, 570 )
(1983) (it may be appropriate in certain circumstances to require a higher level of performance or more stringent measures of compliance than those established in regulatory l guides). j l
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17 experienced a steam generator tube rupture. True, as the i
applicants note, although manufactured by the same concern-the Ginna and.Seabrook steam generators are not identical.
But the difference in models is totally. irrelevant for present purposes. Regulatory Guide 1.83 describes a generic surveillance program.that is said to be applicable to all pressurized water reactor steam generators, irrespective of manufacturer or model. Thus, the Ginna incident gives rise to.a possible inference that adoption of the regulatory it guide's surveillance program at Seabrook might not prevent a tube rupture that would breach the facility's reactor coolant pressure boundary.
- 2. At Seabrook, tunnels between the facility and the Atlantic Ocean provide a pathway for the intake and discharge of ocean water used both to condense the steam exhausted from the plant turbines and to remove heat from
'various structures, systems and components.38 In the event that these tunnels are unable to provide cooling water 11cw during an emergency, the cooling tower at the facility will be used as a source of fresh water to help remove heat frcr..
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See Seabrook Final Safety Analysis Report (FSAR)
(Amendment 61, November 1986) SS 9.2.5, " Ultimate Heat Sink," 10.1, " Summary Description," and 10.4.5, "Circulatir -
Water System."
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the reactor and essential plant equipment.39 Although the j l
two means of heat removal have separate sources of water j l
(i.e., the Atlantic Ocean and the basin associated with the q 1
cooling tower) , they rely upon the same set of heat ]
exchangers to transfer heat from safety-related structures, ) 1 systems, and components.40 In its Contention IV, the Coalition stated: l
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The Applicant must establish a surveillance and j maintenance program for the prevention of the j accumulation of mollusks, other equatic organisms, i and debris in cooling systems in order to satisfy the requirements of GDC 4, 30, 32, 33, 34, 35, 36, 38, and 39, which require the maintenance and inspection of reactor cooling systems. The .
design, construction, and proposed operation of Seabrook fail to satisfy these requirements.
The coalition based this assertion on a May 19, 1982 Federal 1
Register notice in which the Commission discussed the k l
accumulation of aquatic organisms and debris in cooling ]
systems.41 In that notice, the Commission indicated that, l
as a result of such accumulation, degradation of the heat transfer capabilities of safety systems had occurred at several nuclear power plants. !
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4 39 The emergency feedwater system uses cooling water from another source. See id., SS 6.8, "Etergency Feedwater {
System," and 9.2.6, " Condensate Storage Facility."
40 See See id., Figure 9.2-7, " Ultimate Heht Sink."
also App. Tr. 124, 41 See 47 Fed. Reg. 21653.
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19 The-Licensing Board rejected the contention on the dual grounds that it lacked basis and that the cooling system had.
been lit'igated in the construction permit proceeding.42 We disagree and conclude that the contention should have been admitted.
Both below and in the briefa file,d on the Coalition's appeal, much of the discussion concerning the admissibility of the contention focused on the cooling water tunnels. But the contention extends more broadly.to the possible degradation of the heat removal capability of cooling water systems at Scabrook as a result of the accumulation of marine organisms or debris.
It is undisputed that the Seabrook facility has a separate source of water (the cooling tower basin) that is relied upon in the event that the normal source (the Atlantic Ocean) is unavailabic because of a failure of the cooling water tunnels. But these two methods of heat removal are not independent because, as noted above, the heat exchangers used by the cooling tower system are also employed to transfer heat to ocean water under normal conditions. Thus, the accumulation of marine organisms et debris in those heat exchangers could prevent the removal c:
heat by either method. Such accumulation in heat exchangets 42 See LBP-82-76, supra, 16 NRC at 1075.
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at nuclear power _ plants was one of the concerns expressed in the Commission's May 19, 1982 Federal Register notice. The referent;e to this notice by the Coalition therefore provided a sufficient basis for the contention.43 In addition, inasmuch as all of the events giving rise to the concern expressed in the notice occurred in or after 1980, that concern scarcely could have been addressed in the I
construction permit proceeding conducted in 1975. 1
- 3. The remaining two of its rejected contentions brought to us by the Coalition -- II.A.1 and II..B.2 -- are directed to the scope of the applicants' quality assurance prcgrams for the design, construction and operation of the Seabrook facilit.y.4# As these contentions have the same basic thrust, we treat them together. In contrast to our conclusions on the. contentions regarding the steam generator tube inservice . inspection program and the cooling system surveillance p;ogram, we agree with the Licensing Board that i
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43 At oral argument, the applicants discussed actions taken to prevent the accumulation of marine organisms or j debris. App. Tr. 108-11, 123-24, 128-29. The consideraticr. J of these actions, however, goes to the merits of the contention and not its admissibility. See Houston Lighting ,
and Power Co. (Allens Creek Nuclear Generating Station, Unit i T), ALAB-5967 11 NRC 543, 547-49 (1980) (at contention stage, licensing boards should determine only if the )
contention meets the basis and specificity requirements oi {
10 CFR 2.715(a) and, thus, should not reach the merits).
l 44 Contention II.A.1 focuses upon design and '
construction; Contention II.B.2 upon operation.
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l the quality assurance contentions were not admissible at the {
threshold.45 l
Those contentions brought to the fore two different i
portions of the Commission regulations concerned with l quality assurance: Appendix B to 10 CFR Part 50~and GDC 1 4
in Appendix A to the same Part. Appendix B is addressed to safety-related structures, systems and components -- i.e.,
those elements of the nuclear facility that must remain functional in the event of a Safe Shutdown Earthquake to assure:
(1) {t]he integrity of the reactor coolant pressure boundary, (2) (t]he capability to shut down the reactor and maintain it in a safe shutdown condition, or j
(3) {t]he capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparage to the guideline exposures of [Part 100]
For all such structures, systems and components, Appendix B establishes specific criteria governing, for example, the i
i 45 The Licensing Board rejected Contention II.A.1 on f the ground that the applicants' design and construction quality assurance program had been found satisfactory in the j construction permit proceeding. See LBP-82-76, supra, 16 NRC at 1069-70. Contention II.B.2 was found to lack specificity. Id. at 1072. As will be seen, our affirmance of the LicensiQ Board's result is on entirely different l grounds.
6 See Appendix A to 10 CFR Part 100; see also Long Island Lighting Co._ (Shorehem 14uclear Power Station, Unit
- 1) , ALAB-788, 20 NRC 1102, 1112-13 (1984). ?
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22 control'of design activities, documents,'and materials; the performance of inspections and audits; and the maintenance of quality' assurance records.
For its part, GDC 1 is addressed to a broader' category of structures, systems, and components: -those that are important to safety (i.e., " provide reasonable assurance that the. facility can be operated without undue risk to the
' health and safety of the public"47). In contrast to Appendix B, GDC 1 does not set forth any specific quality
. essurance criteria that must be observed. Rather, it requires merely that there be a quality assurance program that provides. confidence that the "important to safety" ;
elements of the_ facility will satisfactorily perform their safety functions.
1 As we read Contentions II.A.1 and II.B.2, there is no j j
claim therein that the applicants' design, construction, arr. l operation quality assurance programs failed to apply the {
j Appendix B criteria to those structures, systems and I components coming within the definition of " safety-related" !
l contained in Ap'pendix A to 10 CFR Part 100. Rather, the l l
gravamen of the contentions appears to be that those criteria should have been applied to all elements of the 1 I
f acility having some safety function, whether or not meetir-4 Introduction to Appendix A to Part 50.
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- e the Part 100 definition. In the basis supplied for the contention, the Coalition listed several such elements that it deemed to warrant application of the criteria. Among j them were, to cite but one example, the motors for the reactor coolant pumps. While.those motors well may fall within the "important to safety" classification, they are not needed to accomplish any of the objectives of a
" safety-related" component.
In the circumstances, Contentions II.A.1 and II.B.2 constituted an impermissible attack upon a Commission regulation.and,.as such, were subject to the summary rejection they received.40 - There is simply nothing in the terms of Appendix B to Part 50 to support the Coal $ tion's thesis that the Commission intended the quality assurance criteria contained therein to apply to each of the multitudt :
I of facility structures, systems'and components that perform some safety function. Indeed, as we cbserved several years f 1
ago in Shoreham, the Commission has made it quite clear th-t that was not its purpose.49
{
48 See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20, ;
modified on other grounds, CLI-74-32, 8 AEC 217 (1974).
See ALAB-788, supra, 20 NRC at 1118-19 tciting CLI-84-9, supra, 19 NRC at 1325). See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 cnd 2), CLI-84-14, 20.NRC 285 (1984). It is true that the (Footnote Continued) l l-J
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.i 24 1
1 i
'D. In the wake of the 1979 accident at the Three. Mile-1 Island facility, the Commission. imposed, through & "TMI. i Action Plan," a number of new requirements applicable to reactor operation.- Among them was the directive to install a Safety Parameter Display System (SPDS) in each. nuclear-power facility's control room.50 The principal function of the SPDS is.to aid the control room personnel during abnormal and emergency situations in determining the safety status of the plant and in assessing whether p1&nt 4 conditions warrant corrective actions to prevent damage to
~he t reactor core. This function is to be accomplished by providing in a conveniont location a concise display of critical plant data.
In its Supplemental Contention 6, SAPL asserted broadly that the Seabzook centrol room design did not conply with (Footnote Continued)
Commission has left the door open for "a particularized showing of clearly identified safety concerns" warranting special quality' assurance treatment for some "important to safety" item, 19 NRC at 1325. But, suffice it to say, the Coalition's' contentions did not offer the prospect of such a
" particularized showing." 'In this connection, our examination of the Commission's January 1982 Regulatory Agenda (to which the Coalition referred) disclosed nothing that might suggest special quality assurance treatment for any of the equipment that the Coalition included in the ctatement of the basis for the contentions.
O See NUREG-0737, " Clarification of TMI Action Plan Requirements" (November 1980) at 2-5, 3-54. See also Supplement 1 to NUREG-0737, " Requirements for Emergency Response Capability," (Generic Letter No. 82-33) (December 1982) at 7-9.
, )
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i 25 l Commission requirements. In this connection, SAPL referred y 1
to the provision in the TMI Action Plan relating to the SPDS.
The hearing on the SPDS portion of Supplemental Contention 6 focused upon eleven identified deficiencies in the operation of the SPDS. More particularly, the evidence addressed the safety implications, if any, of a deferral of the actions necessary to correct the deficiencies. On the basis of that evidence, the Board concluded that some i
corrective action was necessary with re pect to three of the deficiencies prior to operation above the level of five percent of rated power. The remaining eight deficiencies were found either to have already been corrected or to be et sufficient lack of significance that corrective action could be deferred to the first refueling outage without undue risk to the public health and safety.51 In denying its stay application, we rejected SAPL's argument that the TMI Action Plan mandate 0 that all SPDS i
deficiencies be corrected before the facility receives itt, '
low-power authorization.52 Nothing advanced in SAPL's brie 51 See LBP-87-10, supra, 25 NRC at 183-87, 194-205.
52 See ALAB-865, supra, 25 NRC at (slip opinion at i 24-26).
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or-at oral argument prompts us to reconsider that determination. Nor are we. persuaded that the Licensing s
Board erred in denying SAPL's request that all NRC. project managers for Seabrook since April 1983 be compelled to testify respecting any agreements between the. Commission and the applicants related to the time at which there niust be a fully functional SPDS. The short answer to SAPL's claim in that regard is that it has not establish 6d.the possible relevance of that testimony to either (1) whether the TMI Action Plan allows the deferral of corrective actions if no undue risk to the public health and safety will result therefrom; or (2) whether, in fact, there is~ reasonable assurance that the deterral permitted by the Licensing Board will not adversely affect the public health and safety.
On the latter score, SAPL maintains that such reasonable assurance is not present with respect to three corrective measures that, according to the Licensing Board, f 1
need not be accomplished prior to the first refueling outage. Those measures pertained to (1) the containment isolation display, a device that depicts the open and closed l J
status of valves that come into play when there is a need for the sealing of the containment; (2) the data validation algorithms, a procedure for treating several measurements of the same parcmeter (e.,g., steam generator water level) to
)
obtain the desired signal for the SPDS; and (3) the tests of i
SPDS computer response time under heavy loading.
_ _ _ _ _ _ _ _ . . . _ . _ _ _ _ _ _ _ _ _ _ _ _ . 1
27 Turning first to the containment isolation display, at present such a display is available on the main control board but is not incorporated into the SPDS. By the first refueling outage, the display must be so incorporated.
Witnesses for both the applicants and the staff testified that, for the interim, a modified display on the main control board would suffice.53 SAPL does not refer to this testimony, let alone explain why the Licensing Board erred in relying upon it. Moreover, we were informed at oral argument that NRC staff personnel have verified that the applicants had modified the display on the main control board in the manner previously recommended by the staff.54 Moving on to the data validation algorithms, the ataff's safety evaluation expressed the concern that they might "not be sophisticated enough to ensure valid data are displayed to the operator."55 This concern appeared to be 53 Tr. 771-72, 965-66 (except where otherwise indicatco "Tr." citations are to the Licensing Board's September-october 1986 hearing). Following a staff review, the main control board display was changed to eliminate the random positioning of the indicators of containment isolation valve status, thus correcting the most serious potential source of confusion for operators. Tr. 771-72. ;
54 App. Tr. 142. We note this fact because, in its brief, SAPL stressed that, at the time of the hearing belca .
the staff had not ascertained that the modifications had been accomplished.
55 Eckenrode, fol. Tr. 822, Second Attachment at 10.
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28 limited to the case where an off-normal signal might lead to a faulty measurement of one of the parameters displayed by the SPDS. A staff witness indicated that, if such s signal should change enough to affect adversely the information conveyed by the SPDS, it would most likely activate an alarm on the main control board that would alert the operators to the off-normal situation.56 Moreover, the operators do net rely on SPOS information alone but are required to corroborate any SPDS data with other control room information before taking any corrective action.57 Still further, Supplement No. 1 to NUREG-0737 requires that the operators be trained to cope with emergencies even if the SPDS is not available.58 Finally, SAPL insists that, before plant operation, the SPDS must be tested under conditions of heavy computer loading to ensure that the SPDS provides its data with the desired promptness. Two applicants' witnesses testified without contradiction, however, that some level of plant 56 Tr. 985.
57 Walsh and Thomas, fol. Tr. 739 at 2, 6; Eckenrode, fol. Tr. 822 at 2.
58 Walsh and Thomas, fol. Tr. 739 at 2.
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operation is required to load the computer to provide a test )
that will give representative SPDS response times.59 Additionally, a staff witness expressed doubt that the use of a simulated load would produce meaningful results.60 In light of the foregoing considerations, we conclude !
that the Licensing Board correctly determined that the measures in question could await the first refueling outage.61 E. As noted in Section B above, the Commission requires q that an environmental impact statement be prepared by its staff with regard to the operating license application for every nuclear power facility. On June 13, 1980, the Commission published an Interim Policy Statement calling for 1
the consideration in those environmental inpact statements 9
_I_d. at 7.
)
60 Tr. 989.
61 SAPL attacks the qualifications of a staff witness who testified with respect to two other deficiencies j I
(relating to residual heat removal system flow and containment hydrogen concentration) that the Licensing Boara concluded need not be corrected prior to low-power operatiu.
(but must be rectified by the time a full-power license is issued). The Board did not accept, however, the staff position (advanced by that witness) that the corrective action for those deficiencies could be deferred until the first refueling outage. And SAPL does not explain why the Board was compelled to adopt its view that the deficiencic.-
had to be cured before any level of operation was authorized.
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of the more severe kinds of very low probability accidents.62 The Seabrook facility's Final Environmental Statement (FES) documents the analysis performed by the staff in compliance with this directive.63 In its Supplemental Contention 3, SAPL claimed generally that the requirements of the Commission's Interim Policy Statement have not been met. Both SAIL and the applicants moved for summary disposition of the contention.
For its part, SAPL maintained that the severe accident analysis set forth in the FES was deficient. The applicants insisted that the analysis was adequate in all respects.
The Licensing Board viewed the summary disposition motions as raising questions of law and not of fact.64 After reviewing the FES, the Licensing Board determined, as a matter of law, that the FES complied with the Interim 62 See 45 Fed. Reg. 40101. As we have previously observed, this special attention given to such highly improbable severe accidents is not required by NEPA but 16 ..
matter of Comniission discretion. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 697-99 (1985) (citing San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1301 (D.C. Cir. 1984),
vacated in part and reh'g en banc granted on other grounds, 760 F.2d 1320 (D.C. Cir. 1985)).
63 Sec NUREG-0895, " Final Environmental Statement Related to the Operation of Seabrook Station, Units 1 and 2," (December 1982) at 5-47 to 5-71 and Appendices E and F.
64 See Licensing Board Memorandum and Order (May 11, 1983) (unpublished) at 30.
31 Policy Statement. Accordingly, the Board denied SAPL's motion and granted that of the applicants.65 SAPL and the Attorney General contest this outcome. At the threshold, SAPL asserts that the applicants' summary disposition motion raised issues of materini fact respecting the adequacy of the FES and, thus, an evidentiary hearing on the matter was required. And focusing upon the specific content of the severe accident analysis presented in the FES, both SAPL and the Attorney General argue that the analysis is inadequate in several respects.66 Our examination of the severe accident analysis contained in the FES has given us no cause to upset the Licensing Board's determination. To be sure, the analysis and the discussion of that analysis in the FES could have been more extensive. But the same can be said of any analytic undertaking. All that the Interim Policy Statement requires is "a reasoned consideration of the environmental 65 Id. at 34-35.
66 In his request for a stay of the Licensing Board's )
i March 25, 1987 partial initial decision, the Attorney General asserted that the FES had failed to include an analysis of severe accidents. In ALAB-865, we rejected that assertion based on an initial review of the FES. At that time, however, we took no position on the adequacy of the staff's analysis or the overall propriety of the Licensing Board's summary disposition determination. See 25 NRC at (slip opinion at 17-18).
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risks (impacts) attributable to [ severe] accidents."67 We are fully satisfied that the FES in issue fulfilled that requirement. Accordingly, an evidentiary hearing on the interveners' contrary claim would have served no useful purpose.
In their appellate briefs, SAPL and the Attorney General list a substantial number of alleged deficiencies in the severe accident analysis. We confine our discussion here to the claims in this respect that are accompanied by l some explanation of their foundation.
To begin with, SAPL and the Attorney General contend that the staff was obliged to select a single " worst case" accident for analysis and to emphasize the environmental consequences of such an accident (e.g., early fatalities and latent cancers) without regard to the degree of probability that the accident would occur. They thus object to the staff's discussion or environmental consequences in the context of the likelihood of an accident bringing abcut those consequences.68 The objection is baseless. As above noted, the Interim Policy Statement requires an analysis of the environmental risks associated with severe accidents.
6 45 Fed. Reg at 40103. The Interim Policy Statene.-
applies to all accidents but SAPL and the Attorney General challenge only the staff's analysis of severe accidents.
68 See FES at 5-52 to 5-58.
I 1
33 As is commonly understood, and as the FES itself observed,69 risk is the product of the probability of an accident and 1
the consequences of that accident should it occur. A I one-dimensional presentation directed only to consequences would not have accurately reflected the risks attendant upon i the accident (s) considered. O Both SAPL and the Attorney General complain of the L failure of the staff to take account of such external events as earthquakes and sabotage that might initiate, or exacerbate the consequences of, a severe accident. The staff's explanation of its position on this matter was that:
It is the staff's judgment that the radiological l consequences of such events would not be different in kind from those which have been treated.
Moreover, there are design requirements in 10 CFR 50, Appendix A, relating to effects of natural phenomena, and safeguards requirements in 10 CFR 73, ensuring that these potential. initiators are in large measure taken into account in the design and operation of the plant. The data base for assessing the probabilities of events more severe than the design bases for natural phenomena or sabotage events is beyond the state-of-the-art os probabilistic risk assessment. In sddition, the staff judges that the additional risk from severe 69 Id. at 5-64.
O Contrary to SAPL's belief, the accident scenarios included in the staff's analysis were sufficient to comply with the Interim Policy Statement mandate that there be n
" reasoned consideration" of severe accident risks. And there is no greater merit to SAPL's claim that the staff's approach offended current Council on Environmental Quality regulations. Nor is SAPL's reliance on past regulations of
, that Council any more persuasive. See ALAB-819, supra, 22 1
NRC at 699-700.
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accidents initiated bylnatura'i events?or' sabotage ia within the uncertaintylof r
.thef spequences considerad here.4' gks presented f or.
r We find that explanation; satisfactory. ,It is.'now; settled' that'a:faellity's environmental review?needinot consider.the effects of sabotage.72 With regard to'a severe' reactor i h l' accident.being accompanied by an earthquake, the Court 1of.
.t Appeals: forit he District ok Columbia circuit hay held that, i
auchasinultaneousoccurrenceisofyuchlowprobability that it uead not be factored into crergency response i
planning.73 That being!so,.there'is no reason'why a L
combination ot a severe accident and a seismicLevent need be s postulated in Ln environmental risksanalysis. In any event,.
~
inLApper$ dix F the EES desn>contain an.estirate of the increase in'early fatalgtieu were evacuation ~ delayed for one r 1 L, day. (the most likely efnsequence of a> dcjor earthquake having a destru'etiva effect upon evacuation routes).74 1
r 1
FES at'5-I8.
2 See ALAB-819, supr.g, 22 NRC at 697-7C1. I 73 See San Luis Obispu1 Mothers for Peace, supra, 751 F'.2d at 1305-09.
s 74 That estimate also contradicts the Attorney General's~ ekp42. that the FES does : jot account for delays in the evacuation oC the facility's F2Z. The Attorney General also appears to suggest that the staff'shoulq have. estimated the number of.carly fatalities that would occur if evacuation o0 the.EPZ never.took place. Wefsee no reason, however, why the staff was required to indulge in such .1 (Footnote Continueu)
,/
J ~
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~
) - L . YE > 1
i 35 Finally, we reject SAPL's challenge to (1) certain of the assumptions contained in the staff's probabilistic risk i
assessment; and (2) the staff's discussion of the major i i
uncertainties present in its severe accident analysis.
Suffice it to say, on neither score has SAPL demonstrated an infirmity that might cast significant doubt upon the staff's !
ultimate conclusions regarding the environmental risk i associated with severe accidents -- the probability of such an accident during reactor operation and the consequences of the accident should it occur.
F. The Coalition complains or the Licensing Board's !
disposition of its Contention I.B.2. That contention was I
directed to whether the applicants had satisfied the requirement set out in GDC 4 in Appendix A to 10 CFR Part 50 that Structures, systems, and components important to safety shall be designed to accommodate the effects of and to be compatible with the environmental conditions associated with normal operation, maintenance, testing, and postulated accidents, including loss-of-coolant accidents.
More particularly, as litigated, the contention focused upt:. I the capability of equipment subject to GDC 4 to continue to perform its intended function for such period after the (Footnote Continued) patently unrealistic assumption. Although evacuation might )
be impeded by weather conditions or some other external I force, it is scarcely likely that it would be foreclosed indefinitely.
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36 accident as might be necessary -- i.e., whether the J equipment is " environmentally qualified."
- 1. One component in issue below was the RG58 coaxial cable, used for data transmission in the facility's computer systems. Under the Commission's regulations, there are four different methods by which it might be demonstrated that a component is environmentally qualified. In the case of the various types of cable supplied by the vendor International Telephone and Telegraph Corporation (ITT) , two of those methods were employed. Specifically, for the RG11 and RG59 coaxial cables, the applicants "[t}est[ed] 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." 5 For the RG58 coaxial cable, however, the applicants purported to invoke l the method of "[t]esting a similar item of equipment with a supporting analysis to show that the equipment to be qualified is acceptable."76 The Coalition does nct dispute that the RG11 and RG59 i
j coaxial cables were properly demonstrated to be environmentally qualified. It claims, however, that, i
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75 See 10 CFR 50.49(f) (1) .
6 See 10 CFR 50.49 (f) (2) .
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contrary to the finding of the'L'icensing Board, -there.was
~
not such'a demonstration with regard to the RG58 cable.
It appears from the applicants' equipment' qualification I 0
file-(EQF) pertaining to ITT cables that the RG58 cable was deemed environmentally qualified solely on the basis of the tests performed ogs the RG59 cable. According to a-letter sent by the cable vendor to Seabrook's architect-engineer and constructor, the RG59 and RG58 cables have "similar construction details," with the consequence that.the vendor was " confident" that the RG58 l cable "would have been approved" had it been tested. 9 Beyond the text of that letter, we have found nothing in the
~
file that could possibly provide any additional support for-a conclusion that the RG58 cable is environmentally qualified.80 7 See LBP-87-10, supra, 25 NRC at 211.
8 I By virtue of 10 CFR 50.49, the applicants were required to maintain EQFs which must, itteru alia, record the !
manner 1:a which particular equipment is determined to be environmentally qualified.
79 Coalition's Exhibit 4, Electrical Equipment Qualification File No. 113-19-01, Reference 4, Letter from Joel T. Sibley (ITT) to George Morris, United Engineers &
Constructors, February 11, 1983.
80 The applicants' Environmental Qualification Assessment Report, which is included in the file, refers (a+
4, 9) to the contents of the vendor letter but otherwise does not address the RG58 cable.
)
)
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1 We agree with the Coalition that the vendor letter was insufficient to establich that the RG58 cable is environmentally qualified. As noted above,;it was incumbent upon the applicants to provide an' analysis that demonstrated that the test of the RG59 cable proved that the RG58 cable is acceptable. The mere statement by the vendor that the
{
two cables have "similar construction details" hardly j I
constitutes such an analysis. Nor is there cause to attach weight to the vendor's expression of " confidence" that the RG58 cable would have passed muster had it been tested.
In this connection, while the RG58 and RG59 cables contain the same materials, there are significant differences in the dimensions of their conductors and insulation. More particularly, the #24 AWG (American Wire L 1
Gage) conductor in the tested RG59 cable has approximately one-half the cross-sectional area of the #21 AWG conductor in the untested RG58 cable.81 And the insulation cf the former is over fifty percent thicker than that of the l
latter.82 In light of the foregoing, there is no apparent basis for the Licensing Board's conclusion that the environmental l
81 See Coalition Exhibit 4, Reference 1, pp. Al-A2; see ;
also Standard Handbook for Electrical Engineers, S 4-80 (D. J Fink 1 J. Carroll, 10th ed. 1969).
82 See Coalition Exhibit 4, Reference 1, pp. Al-A2.
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qualification of the RG58 cable was " adequately documented" j in the applicants' EQF. Insofar as we can determine from I
its decision, the Licensing Board relied for that conclusion ]
I exclusively upon the vendor's letter and the data submitted R I'
in connection with the tests performed on the RG59 cable --
characterized by the Board as the " manufacturer's certification."04 At the very least, the Board was obliged to identify the portion of the EQF in which (in the Board's view) it was clearly shown that the dimensional differences between the RG59 and RG58 cables were of such little importance that the test results for the RG59 cable could serve to. qualify the untested KG58 cable.
Accordingly, the segment of the environmental qualification issue concerned with the RG58 cable must be returned to the Licensing Board. If unable to point to anything in the existing record that establishes that the differences in the two cables are unimportant for present purposes, the Board is to reopen the record for a further exploration of the question whether the RG59 cable test results can serve as the foundation for the environmental qualification of the RG58 cable.
LBP-87-10, supra, 25 NRC at 211.
84 1313,
40
- 2. We find a lack of comparable merit in the Coalition's insistence that the Licensing Board erroneously determined that the staff's review of the applicants' environmental qualification program was sufficient to assess the completeness and adequacy of the program.
As a first step in that review and in order to ascertain the readiness of the program for an audit, the staff examined in excess of one hundred EOFs, identified numerous deficiencies, and presented those deficiencies to 85 Subsequently, the the applicants for corrective action.
l staff conducted a detailed audit of twelve of the EQFs (in the instance of some of the files for the purpose, inter alia, of determining whether those previously identified deficiencies had been corrected).86 Six of the twelve files were found to contain deficiencies, summarized by the Licensing Board as follows:
Of the six files, four called for supporting or clarifying information. They were: (a) one file
(#113-01-01) should be updated to include test information that had been provided by Applicants during the audit, (b) a second file (#174-15-01) should be supplemented to include additional information justifying the use of a test sequence different from that specified in IEEE 323-1974, (c) a third file (#113-06-01) should include a statement specifying that submergence qualification was not required, (d) a fourth file
(#236-11-06) should be supplemented to include 85 See Coalition Exhibit 13; Tr. 696.
86 Tr. 697-98.
i 41 clarifying test report data in the equipment summary evaluation. (NECNP Exh. 11 at 2.) Two of the six audit deficiencies addressed two specific equipment items observed during'a plant walkdown conducted'as part of the audit. They were (e) three internal wires and a terminal block in a Limitorque Motor Operator (EQ File #248-37-01) were not identifiable and must be replaced with qualified components, and (f) an ASCO Solenoid Valve (EQ File #NSSS-220-02) had two different equipmentidentificationnumg9rsonit, which situation must be rectified.
The Coalition's primary claim is that, given these disclosed deficiencies in half of the audited EQFs, the Licensing Board should not have accepted the environmental qualification program as adequate. We think otherwise.
To begin with, as the Board observed, four of the six deficiencies "merely called for [the) addition of clarifying or upporting information already in [the alpplicants' possession."88 The Coalition regards this as a major deficiency because, in its view, 10 CFR 50.49(j) mandates that all records pertaining to the environmental qualification of a particular component be contained in a ,
1 single EQF. But section 50.49(j) does not explicitly set forth any such mandate and the statement of consideration that accompanied its promulgation notes that, although it must be maintained in "an auditable form," the record of LBP-87-10, supra, 25 NRC at 208-09.
88 Id. at 188.
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qualification need not be kept "in a central file."89 Indeed, the Commission observed, certain records can be kept-
"at the vendor's shop."90 This being so, if qualifying as deficiencies at all, these four were of little significance.
i One'of the two ;emaining deficiencies relied upon by the Coalition was equally insignificant. A temporary tag placed on a valve bore a wrong identification number.
Before the valve was put into operation, that tag would be removed. The permanent tag that would be left on the valve d 1
reflected the correct number.91 Thus, only one of the six deficiencies in question --
that relating to the three unidentified wires and a terminal block in a Limitorque motor operator -- was of any consequence. The applicants are committed to rectifying 92 and we do not believe that, standing this deficiency alone, it is sufficient to condemn the entire Seabrook j environmental qualification. program. As we pointed out several years ago in the context of quality assurance deficiencies:
J 89 48 Fed. Reg. 2729, 2732 (1983). )
90 Ibid.
91 Salvo, Thomas and Woodward, fol. Tr. 357, Exhibit at 2.
92 Id. at 1.
{
43 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. It would therefore be totally unreasonable to hinge the grant of an NRC operating license upon a demonstration of error-free construction. Nor is such a result mandated by either the Atomic Energy Act of 1954, as amended, or the Commission's implementing regulations. What they require is simply a finding of reasonable assurance that, as built, the facility can and will be operated without endangering the public health and safety. 42 U.S.C. SS 2133(d), 2232(a); 10 C.F.R. S 50.57 (a) (3) (i) . Thus, in examining claims of quality assurance deficiencies, one must look to the implication of thgge deficiencies in terms of safe plant operation.
These considerations are equally applicable to deficiencies in the documentation of environmental qualification.94 G. Finally, we are confronted with challenges to the Licensing Board's rejection in separate interlocutory orders of two late-filed contentions concerning the adequacy of emergency notification siren sound levels in certain i
93 Union Electric Co. (Callaway Plant, Unit 1),
ALAB-740, 18 NRC 343, 346 (1983) (footnote omitted).
94 The Coalition also maintains that the staff's audit was premature in that it should have been deferred until the
" extensive revisions" called for by the preliminary review had been completed. New England Coalition on Nuclear Pollution's Brief in Support of Appeal of Partial Initial Decision Authorizing Issuance of a License to Operate at Lcw Power (May 8, 1987) at 26-27. We are pointed to nothing in ,
the record, however, to suggest that at least some of the i deficiencies uncovered in the preliminary review remained l uncorrected at the time of the audit. Insofar as we have i I
been told, none of the deficiencies disclosed by the audit had also turned up on the preliminary review.
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. portions of the Seabrook EPZ. One of those contentions, sponsored by the Attorney' General, was addressed to the sirens installed in'the Town of'Merrimac in Massachusetts.
The'other, put.forth-by_SAPL, focused upon the sirens in the' Town of East Kingston, New Hampshire.
- 1. In our stay decision, we determined, inter alia, that there had not been a sufficient showing of.a likelihood of success on the merits of the attack upon the disposition below of the siren contentions. As earlier noted,96 this determination did not serve to deprive either the Attorney General or SAPL of the opportunity to' press that attack anew in their. appellate. briefs and at oral argument. Both of those parties availed themssives of that opportunity.
Dased to a large extent'upon the disclosures at oral argument, we came to the conclusion that it might be possible to resolve the differences between the parties on the siren matters without the necessity to decide whether,
.as a mntter of law, the contentions in question were J improperly rejected at the threshold. We gave effect t4
)
this conclusion in a July 30, 1987 unpublished memorandum and order.
95 See Licensing Board Memoranda and orders (March 23 and 25, 1987) (unpublished).
96 See supra p. 3.
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j With respect to the Merrimac sirens, we had this to say. )
i
[T]he single area of present concern relates to '
the measurements of ambient background noise icvels -- an important element in ascertaining whether the sirens satisfy the acceptability standards of the NRC cnd the Federal Emergency '
Management Agency (FEMA). Compliance with NRC/ FEMA standards may be achieved by assuring '
that siren sound pressure levels exceed by 10 decibels the average measured summer daytime 3 ambient cound pressure levels. Tests were ;
originally conducted in January and, then, again, j in March. At argument, we were told that another j set of measurements will be taken next month. As )
appears to be recognized by the Attorney General {
(as well as his adversaries), this event may well i have a decided bearing upon any possible warrant I for litigation in connection with the Merrimac l sirens. Accordingly, once those measurements have i been acquired, the applicants are to furnish them forthwith to both the other parties and this Board, together with a full description of the ;
method employed in taking the measurements. Upon ]
receipt of this information, the NRC staff shall l tand any other party may) file comments with us l eddressed to the acceptability of the methodology j employed and the results reached. These comments l; shall be placed in the mail no later than the fifteenth day following the date upon which the j applicants file and serve the information. The .
applicants are to advise us promptly if, for some reason, the measureg9nts are not taken, as ;
planned, in August on the subject cf the East Kingston sirens, we observed that:
[T]he dispute as to their adequacy arose from the conduct of a test last January. According to SAPL, that test demonstrated that the sirens wou.c i not produce the required sound level. The statt't i i
9 Appeal Board Memorandum and Order (July 30, 1987) at 3-4 (footnotes omitted). !
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rejoinder,'in.the form of an affidavit, was that the test had not been properly performed. The q staff nonetheless appeared to acknowledge that the airens had failed to perform as intended; beavy snow, driving wind and subsequently falling :
temperatures had reduced the efficiency of the- l' sirens and their activation antennae. But corrective action is underway. Such corrective action is planned for all sirens and activation antennae within the Seabrook alert and notification system.
In the. circumstances, it seems quite apparent that-this matter is susceptible of resolution without the need for litigation. More particularly, as no party appears to disagree, the sensible courne is-to conduct another test during the coming winter.
Obviously, it will be most helpful if there is also agreement with regard to the test procedures that should be utilized and the appropriate climatic conditions for the conduct of the test.
To this.end, the staff is to initiate discussions with the other parties interested in this matter (SAPL, the applicants and (possibly) the Attorney General) and to submit a repo outcome of those discussions.gg to us as to the
- 2. The Merrimac sirens were tested on August 19 and 20 and the applicants'. report was filed on September 17. Thus, under the terms of the July 30 order, the comments of the staff (and possibly other parties) on the information contained in the report will be due shortly. We will require time, however, to evaluate those comments.
In the discharge of the responsibility placed upon it in the July 30 order, the staff advised us of the results of the negotiations with regard to the test this winter of the 98 Id. at 4-5.
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1 East Kingston sirens. It appeared that there are some areas of agreement among the interested parties (applicants, f staff and SAPL) as tu the conduct of the test. It also appeared, however, that there are some significant areas of disagreement. This circumstance led us to enter an order on September 17 directing the parties to submit memoranda by October 5 detailing their positions on the matters on which agreement has not been achieved.100
- 3. As is seen from the foregoing, it will be some f; additional time before we will be able to resolve the siren !
questions before us. We perceive no good reason, however, why the disposition of the numerous other issues presented by the several pending appeals should be withheld in the i
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99 See September 11, 1987 letter from Edwin J. Reis, Deputy Assistant General Counsel, to the members of this Board. j 100 In an August 31, 1987 letter, staff counsel Reis !
had informed us that he had been advised by counsel for the l Attorney Ceneral that, "as SAPL was principally interested I in this matter, he would abide by any agreement SAPL made !
concerning the testing of [the East Kingston] sirens."
- 04. surprisingly, then, Mr. Reis' September 11 letter did not allude to any views of the Attorney General. On September j 22, however, Allan R. Fierce sent us a letter on the j Attorney General's behalf indicating disagreement with aspects of the prcposed procedure for testi:;g the sirens beyond those assigned by SAPL and reported in staff counsel's September 11 letter. The explanation for this development was that, at or about the time staff counsel solicited the views of the various parties in late August, ,
the attorney who had been the Attorney General's lead j counsel in this matter resigned his position to enter private practice.
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,, meantime. Accordingly, we are rendering our decision'today.
O on'all but the siren _ questions. An opinion on those.
questions will be forthcoming at a later date.
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For the reasons developed abova, the March 25-partial
' initial decision is affirmed in part and reversed and remang,ed in part. In.additior., *j jurisdiction over the issues
' pertaining to.the;emergancy notification sirens is retained )
-pending our further order. .
1 On the remand, the Licensing Board is to admit for l l
litigation Ccalition Contentions I.V. (concerned with 1 inservice' inspection of 6 team generator tubes) and IV ;
i (addressed to the accumulation of aquatic organisms and other foreign matter in - cooling systens) . Moreover, the Board la to reezamine its disposition of a portion cf the environmental qualification issue in accordance with the d
views expressed in Section F of this opinicn. !
I We need nct now explore the extent, if any, to which i
the remanded issues are relevant to low-power Seabrook operation. As earlier noted,101 such operation is now l precluded by & Commission order prompted by offsite ,
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anything that the Licensing Board will be looking at on the !
101' See supra n.4.
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remand. We have no way of knowing whether, and if so when, the Commirsion will conclude that the reasons' undergirding the stay at has imposed no longer obtain.102 Assuming that such a conclusion is reached prior to the completion of the remand, and further assuming that the Commission does not l provide controlling guidance of its own on the subject, the Licensing Board is to determine expeditiously the j appropriateness of a renewal pendente lite of the low-power authorization contained in the March 25 decision.103 In making that determination, the Board should consider such .
factors as the bearing of the remanded issues upon low-power o=peration and the then status of the resolution of those {
issues.104 l
102 On September 21, 1987, grounded upon their i submission three days earlier of a utility emergency {
response plan for the Massachusetts portion of the EPZ, the i applicants moved to vacate the Commission's stay of I low-power operation. Responses to that motion are not as i yet d9e. See September 23, 1987 Commission order ]
(unpublished). l 103 In connection with its consideration of the pendir.c l
motion to vacate the stay it had imposed, the Commission mm; or may not decide to examine as well the question whether our remand should stand in the way of low-power operation. j 104 The fact that we are retaining jurisdiction over the siren issues does not provide an obstacle to the authorization of low-power operation. As previously noted, we concluded in our stay decision that there had not been the requisite showing of a strong likelihood that the !
Licensing Board's ruling on those issues would be i overturned. See ALAB-865, supra, 25 NRC at (slip (Footnote Continuec) 1 l
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l Any conclusion reached by the Licensing Board en the .
i question of authorizing low-power operation prior to completion of the remand shall be incorporated in a written order.. If that question is answered in the affirmative, the order shall not become effective for a period of ten days following the date of its service to enable any dissatisfied party to seek eppellate relief.105 6
It is so ORDERED.
(Footnote Continued) opinion at 18-23). Although the ultimate resolution of the issues may remain uncertain, nothing that has been put before us since the rendition of ALAB-865 persuades us that there is now a sufficiently high probability that the -
interveners' position will prevail to warrant stay relief.
l.In view of this consideration, we need not and do not examine here the relationship between offsite emergency notification requirements and low-power (as opposed to full-power) facility operation.)
105 No similar restriction shall exist with respect to the Licensing Boardi s disposition of the remanded issues in a supplemental partial initial decision, 106 When confronted with one or more appeals from an initial decision, it is our general practice to review on our initiative any substantive determinations contained in the decision that may not have been embraced by the appeal (s). In this instance, the appeals covered all such determinations other than those concerned with the contentions of the Coalition and the State of New Hampshire (not a party to the appeals) respecting the applicants' i emergency classification and action level scheme. It appears that those contentions were ultimately abandoned ar.o thus no longer presented issues in controversy at the tin,e the partial initial decision was rendered. See LBP-87-10, supga, 25 NRC at 183. Nonetheless, the Licensing Board included in the decision findings and conclusions that resolved the matter in the applicants' favor. Id. at 190-94. Our review has disclosed nothing to cast doubt upcn the correctness of that disposition.
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51 FOR THE APPEAL BOARD l C 0 ed 5 mens ~N C. Jhan Shoemaker SecrNtary to the Appeal Board !
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