ML20235S185

Nuclear Regulatory Commission Issuances for April 1987.Pages 267-416

ML20235S185
Person / Time
Issue date:	09/30/1987
From:	NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM)
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References
NUREG-0750, NUREG-0750-V25-N04, NUREG-750, NUREG-750-V25-N4, NUDOCS 8710080359
Download: ML20235S185 (160)

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NUREG-0750 Vol. 25. No. 4 Pages 267-416

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NUCLEAR REGULATORY -

2 COMMISSION ISSUANCES .

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Available from Superintendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013 7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 4 hardbound editions for this publication.

Single copies of this publication are available from National Technical Information Service, Springfield, VA 22161 Errors in this publication may be reported to the Division of Publications Services Office of Administration and Resources Management U.S. Nuclear Regulatory Commission Washington, DC 20555 (301 492-8925) l l

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NUREG-0750 Vol. 25, No. 4 Pages 267-416 NUCLEAR REGULATORY COMMISSION ISSUANCES April 1987

_ 3 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Dentals of Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dent legal significance.

U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Publications Services Office of Administration and Resources Management U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

l COMMISSIONERS Lando W. Zech, Jr., Chairrnan Thomas M. Roberts James K. Anselstine Frederick M. Bemthal Kenneth M. Carr l

Alan S. Rosenthat, Chairman, Atomic Safety and Licensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety and Licensing Board Panel 1

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CONTENTS l

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' ..j V t) Esuance of the Nuclear Regulatory Commission  ! l

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/ Dockets 50 443-OL 1,30-444 OL-1 /..

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', ,' r. ' , [, ME!IORAM3UM AND ORDER,CLI 87 2 April 9,1967

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Issuance of the Atomic Safety and Licensing Appeal Board ;

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!g Y PHILADELPHIA ELECTRIC COMPANY

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,3 (Limerick Genec@ag Station, Units 1 ant ?) /-

i h Dockets 50-352 OL.,17-353-OL .

s > j DECISION,'ALAB 86N April l',,198'i t '

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Issmpces of the Nomic Safety and Licensing Boards

. l PU:!LIC SERVIE COMPAlW OF NEW HAMP3 HIRE, et al.

' (3eabroolr .Stadon, Un.its 1 and 2) (

Dockets 50-447.rA., 50444-OL (ASLBP No. 82-471-02-CL)'

. (Offsite Eme,5erky Planning) \

, t MEMORANDUM AND ORDER, LBP 87 12, April 22 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 '

TOLEDO ED150 N COMPANY, et al. 1 (Davis-Besse Nuclear Power Station, Unit 1)

/ < Docket 50 34SML (ASLBP No. 86 525-01 ML)

DECISION O 'i THE DISPOSAL OF WASTE AT DAVIS BESSE, LBP-87-l'1, Agia 15,1987 . . . . . . . . . . . . . . . 287

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.i . I Issuance of the Administrative Law Judge

',? ' " ' , ' ,j GES/TIAAL PUBLIC T;b1TLITIES NUCLEAIICORPORATION q

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.' (Three Mile Island Nuclear Station, Unit 1) l', , ,,

Docket 50-289-CH (ASLEP No. f,5 314 02-OT)

' i INITIAL DECSION Abi-87 3, April 2,1987 ... . . . . . . . . . . . . . . . 34 5 g

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CAROLINA POWER & LIGHT COMPANY and NORTH

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CAROLINA EASTERN MUNICIPAL POWER AGENCY c;* , j p _

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U-CHEM-NUCLEAR SYSTEMS, INC.

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Docket 3018618

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- 1 DIRECTOR'S DECISION UNDER 10 C.F.R. 62.206, 4

- DD-87-8, April 30,1987 ..................................410

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SEQUOYAH FUELS CORPORATION

• 0 (Gore, Oklahoma Facility)

Docket 40-8027 DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-87 7. April 21,1987 ..................................402 4

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1 Comm.ission Issuances 1

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UNITED STATES OF AMERICA

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• Lando W. Zech, Jr., Chairman

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;2'^ .* Thomas M. Roberts James K. Asselstine

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r Frederick M. Bemthal J' Kenneth M. Carr i j

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-' in the Matter of Docket Nos. 50-443 OL-1 4 50-444-OL 1 (Onsite Emergency Planning ,

and Safety issues) {

I PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

s (Seabrook Station, Units 1 {

and 2) April 9,1987 )l I

The Commission undertakes sua sponte review of the issue of whether a low-power license may issue before a utility applicant submits a radiological

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> emergency plan for the facility's entire plume exposure pathway emergency l l

planning zone. The Commission determines that low-power operatian should

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not be authodzed until the applicant has submitted an emergency plan for the

- plume exposure emergency planning zone, even though a demonstration of offsite emergency preparedness is not required for low-power operation. The Commission believes that in the special circumstances of this case, it is

. sound regulatory policy to require the filing of a complete radiological offsite

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. emergency plan prior to issuance of any operating license, including a low-power license, for Seabrook.

- . 'Ihe Commission distinguishes the issues it faced in its review of the Shoreham proceeding where a utility offsite emergency plan had been filed, j~ ,

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but where uncertainty existed regarding the merits of the emergency plan. The Commission notes that submittal of a complete offsite plan makes possible a 267

I summary review to determine if adequate emergency planning is atleast possible j for Seabrook.

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- l MEMORANDUM AND ORDER s ,

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4 d This decision completes the Commission's review of a single issue: whether 05 *

• ' a utility applicant must submit a radiological emergency plan (either a govern-

, , 4 mental plan or a utility plan) for the entire plume exposure pathway emergency planning zone (EPZ) for the facility before the Commission may issue any j

operating license, including one conditioned to permit only fuel loading or operations at less than 5% power. It is uncontroverted that when this issue came before the Commission no plan had,been submitted for that entire portion of Massachusetts that is situated within the boundaries of Seabrook Station's EPZ and constitutes roughly one-third of the EPZ,2 In its January 9,1987 order (unpublished) announcing that it was undertaking review sua sponic,2the Commission said that it believed it could decide the issue presented on the basis of the previously filed briefs, Nonetheless, the parties were permitted a full round of briefing, if they wished it.'

As we discuss below, on consideration of the views of the parties, the Com-i mission has decided not to affirm the Arps.s: Soard's decision. In so doing, we have decided to take no action with respi to the outstanding license for fuel h Ion the eve of afntnung this decision the Communion received nociacauon frorn PsNH that it was submining utiliry emergency plan for that portion of the EPZ that has in Massachuseus. In that light, PsNH suggested that

, , the instant review is moot and requested the Commissmn to hft us stay. In view of the lateness of PsNH's mouan, and the policy importance of the maner under Canmission considerauen, the Commmaion has decided to proceed wuh its decinon, and to treat PsNH's mouan as a request to vacate today's decision on grounds of mootness and to vacate the stay on the gmund that the concerns that underhe the stay have been alleviated. Views of the parties on the question of mooiness and any other matters relevant to the maintenance of the stay are requued on

• the following schedule:

AB answers from other than NRC staff- Aled by April 2s,1987 NRC staff answer - Aled by May 1,1987.

2 Massachuscus Anorney General Belloni pectioned for review as Comnussion considerauon of sua sponse review was under way. Inclined to have this maner decided at the Commusion level, the Commission decided not to delay its sus spears decuien for the process to consider pleadings for and agamst review. In that Massachuseus sought review of the same issue,its peution is in effect grarned. In its fahng before us New England Coahtion for Nuclear Pon, tion (NECNP) sought among other things reconsideration of the Commission's SAorsham decJion. De i Commission dochnes NECNP's invnstimi and specincaDy hmits he review to the issue spectned.

3 The fonowing parues parucipated in the penrussive bneang schedule: Anorney oeneral Belloni of the Commoowcal:h of Masuchuseus Cater subsutuung Attorney oeneral shannon), scacoast Anu Palluuan teague (sAPL), NECNP, Town of Hampion, PsNH, and the NRC staff.

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We also note receipt of a brief amicus curias subnuued by former senator oary Hart. De beef did not address

• ~ .# the specific issue on whids we accepted review.

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loading and precriticality testing dbecause there is no safety benefit to be derived from removing the fuel; moreover, fairness suggests in any event the need for a Commission decision on PSNH's mootness motion before taking any such

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action regarding the outstanding license. Today's decision is fully applicable to

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e.i g j any license for Seabrook that authorizes criticality and low-power operation.

..x . .~% N 1 *d POSITIONS OF TIIE PARTIES

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^~y De Applicant and the NRC Staff argue for affirmance of the decision under i

- review. They urge that in promulgating its rule on submittal of emergency plan c

applications,10 C.F.R. 6 50.33(g), the Commission never intended to establish submittal of offsite emergency plans as a licensing requirement independent of the ultimate required findings on the plans. They further contend that 10 C.F.R. I50.47(d), which climinates findings on the adequacy of offsite emergency planning as a precondition to issuance of a license for low-power )

operation, makes it clear that emergency plans need not be submitted by that j stage. Finally, they can find no policy reason to support such a requirement.

On the other side, some or all of Interveners (Massachusetts' incumbent i Attorney General Shannon, NECNP, SAPL, and the Town of Hampton) argue that the express language of the rules requires plan submittal, while express language of $ 50.47(d) does not list submittal of an emergency plan as one of 3

. the requirements to be omitted from consideration when licensing for low-power

-l 1.) operations. Rey argue that sound policy favors a requirement for a substantially complete application - that the Applicant do all that it can do - before the risks and disadvantages of low-power testing are permitted. This is so, they say, because so long as an adequate plan for Massachusetts is required. until it is at least filed, issuance of a full-power license cannot at all be reasonably

- anticipated.s

- - - DECISION This is a matter of first impression. We find no evidence that the Commission has ever before specifically considered by when the applicants must submit the i

• A license for fuelload and precnucality testmg was grarned and was appealed. While the Appeal Board den!ad a stay aquest made by the Anorney General of Massachusetts. is expedaed review presumably so that the ms.tcr

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• could be resolved,if possibA in advance of readiness for low-power testeg 8 1mervonom also suggest that Congress itself has found utility in requiring subininal of an application be' ore i aBowing low-power testmg as is evidenced by the structure of $192 of the Atomic Energy Act. Intervanors proffer I

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• wanous other pohey considersnans that they beheve are served by reqmrmg eady subnunal of plans. includmg an

, , incremers of additional safety as a result of eady plannmg. less pressun on FEMA, and expediuon c(hearmas- l l

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emergency plan.8 The statements of consideration and discussion of proposed

, rules fl50.33(g) and 50.47(d) include no insight on this issue. Nor has any l, . licensing hearing presented this question.

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, j It is contended by those seeking affirmance of ALAB-853, 24 NRC 711

.. ,, 1 (1986), that the Commission's Shoreham decision governs this matter. The r ,f . 7 'K issues in Shoreham were raised in connection with alleged grave uncertainty

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l$ ' .j about whether eventual findings on the submitted Long Island Lighting Company

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+# (LILCO) emergency plan would support issuance of a full-power license. In that

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context the Commission noted that low-power testing has independent benefits,

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. . &' , including the avoidance of potential delay if and when a full-power license is 0; , g issued, and that the earlier low-power testing was initiated the more likely that its

.)' full benefits would be reaped on a timely basis. The Commission concluded that

- / disputes about the eventual decision on the merits of issues under consideration j . for a full-power license should generally not interfere with the low-power testing.

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. But the disputes that fueled the controversy in Shoreham were, by their nature, litigation and political disputes. And, as noted by the U.S. Court of Appeals for the District of Columbia Circuit, we observed in regard to Shoreham, "the outcome of litigation and political conflicts frequently surmunding the grant of a final license is particularly speculative." Cuomo v. NRC, 772 F.2d 972, 976 (D.C. Cir.1985). The emergency planning uncertainty at Shoreham could

have changed favorably or adversely at any time as viewpoints changed or

., as accommodations were reached. This is characteristic of many matters in litigation, and the Commission properly declined to regard the existence of such j litigation as a factor precluding issuance of a low-power license. But the issue, before us in Seabrook is distinguishable from Shoreham - here we deal not with speculation as to the outcome of hearing litigation, but with the conclusions to be derived from the proposition that some of the materials that normally are essential to support a full-power license under our regulations were missing.

. As summarized above, arguments based on the language of the rules have been made by both sides. We acknowledge that there is some merit to both sides' positions, and we commend the Appeal Board for its careful analysis of I the question. But the question before us is not a strictly legal one, but rather l t

a question of regulatory policy which ultimately we alone should decide. In the special circumstances of this case ourjudgment is that sound policy favors

, requiring the filing of a state, local, or utility plan before any operating license I is issued, including a license confined to fuel loading or low-power testing.

In Shoreham, we specifically observed that the emergency planning issues

, raised there did "not appear to us to be categorically unresolvable," Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI 83-17,17 NRC

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'The Commission believes that it is abundaraly clear that a plan must at some time be sulmutted, and considers 5 that the issue raised addresses only the timing of that subnuttal.

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1032, 1034 (1983), and we did not discount the possibility that a license for fuel loading and low-power 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 '

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, a* . policy requires that we retain this option at least for Seabsook. De filing of an

! W ,- ,,' '.  ; offsite plan makes possible at least a summary review, of the type we performed

' Q,N,' '.y f,9 ' , 7i in Shoreham, to determine whether adequate emergency planning is at least in fy. the realm of the possible. Thus applicants must do at least this much before v .. L .; ...

1. s~ there can be any license issued.

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De Commission stay remains in effect pending consideration of PSNH's

" Suggestion of Mootness and Request for Vacation of Stay"in accordance with .

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note 1 to this decision.

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Commissioners Roberts and Carr disapproved this Order; their disseruing

.c views are attached. Commissioner Asselstine's additional views are also at-

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tached.

It is so ORDERED.

For the Camminaion JOHN C. HOYLE Acting Secretary for the Commission

- Dated at Washington, D.C.,

this 9th day of April 1987.

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ADDITIONAL VIEWS OF COMMISSIONER ASSELSTINE I concur in the result reached in the Commission's order, but I do not

. necessarily subscribe to all of the reasoning therein. I believe that, as a matter of policy, the Commission should not issue a low power license to a plant when there are fundamental uncertainties about whether the plant can be licensed.

DISSENTING VIEWS OF COMMISSIONER CARR I would affirm the Appeal Board's decision in ALAB-853 because the Appeal

' ' - Board interpreted the regulations at issue correctly and sensibly. Submission of c .

. a plan has no bearing on the findings required by our regulations for low power

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licensing and elevates form over substance.

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DISSENTING VIEWS OF COMMISSIONER ROBERTS I would affirm ALAB-853.

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• To require, prior to issuance of a low-power license, submission of a I

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utility plan for the portion of the EPZ that lies within the Commonwealth of -

Massachusetts serves no legitimate regulatory purpose and is inconsistent with v,

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our earlier action in the Shoreham case. The majority's reasons for distinguishing j p h.

• L&] > ,,L , . -o l the Shoreham situation from the Scaixook situation are feigned. Moreover, to yp"My g _ fc; *'W7 ,. *g .

, , i require, solely for the sake of completeness, submission of a document that

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4 low-power license is to worship form over substance.

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, 'Ib reverse the legally correct and sensible position of ALAB 853 for the sole

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purpose of sendmg a signal to the applicants and the public that the Commission J, ' <

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, is not likely. to approve a reduction in the size of the EPZ at Seabrook is

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wrong. That message can and should be transmitted more clearly and directly.

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, I believe that the choice of which gath to pursue, seeking a reduction in the

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' ' size of the EPZ or filing a utility plan for Massachusetts, and whether to risk a

- delay in licensing by taking the path they choose, should be left to the applicants and that, absent a valid safety basis for doing so, we should not interfere in their choices.

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L Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman Dr. W. Reed Johnson ,

Thomas S. Moore l Christine N. Kohl Gary J. Edles Howard A. Wilber l

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Cite as 25 NRC 273 (1987) ALAB-863

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ATOMIC SAFETY AND UCENSING APPEAL BOARD

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Christine N. Kohl, Chairman Ja, Gary J. Edles

- Howard A.Wilber in the Matter of Docket Nos. 50 352 OL 50-353 OL

, PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2) April 17,1987 The Appeal Board in this operating license proceeding af5rms a Licensing

Board's finding that arrangements for notifying and mobilizing off duty cor-

• rectional of5cers at a state prison in the event of a radiological emergency at

- the Limerick facility meet the pertinent regulatory requirements for emergency

.c response planning.

4 APPEAL BOARD: STANDARD OF REVIEW (SCHEDULING OF HEARINGS)

The Appeal Board is ordinarily reluctant to second guess a licensing board on scheduling matters, and will review such issues only to ensum that due process has been afforded to a complaining party. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813,22 NRC 59,74 (1985).

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APPEAL BOARD: STANDARD OF REVIEW (SCIIEDULING j l ,

OF HEARINGS)

. -! . Claims alleging deprivation of due process due to an expedited hearing

, . .,- .t schedule must be supported by a showing of specific harm resulting from such r.

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schedule. ALAB 845,24 NRC 220,251 (1986).

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RULES OF PRACTICE: HARMLESS ERROR

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Failure to show specific harm from an unduly expedited hearing schedule will

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result in a finding of harmless error, providing no legal ground for reversal. See

,. ;l Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),

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a ALAB 841,24 NRC 64,95, reconsideration denied, ALAB-844,24 NRC 216

- (1986); Catawba,22 NRC at 74.

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RULES OF PRACTICE: DISCOVERY RULINGS Licensing board denials of discovery requests and the like are often prime candidates for later appeal; thus, a licensing board is expected to create and to preserve.the record of any such action.

i l RULES OF PRACTICE: SUBPOENAS l Under the Commission's Rules of Practice,10 C.F.R. 6 2.720(a), subpoenas j are issued upon a showing of only general relevance.

RULES OF PRACTICE: SUBPOENAS

, Where general relevance has been shown, there is no provision in the Rules of Practice for a licensing board's sua sponte refusal to issue a requested subpoena; rather, a board may quash an already issued subpoena on motion of the person or entity against whom discovery is sought.10 C.F.R. 5 2.720(f).

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", f RULES OF PRACTICE: HEARSAY EVIDENCE Hearsay evidence is generally admissible in NRC proceedings. See ALAB-836,23 NRC 479,509 n,52 (1986), and cases cited; Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355,4 NRC 397,411-12 (1976).

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- EMERGENCY PLANS: CONTENT (SUFFICIENCY)

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While the overall concept and essential elements of an emergency response

+ - plan must be described, a plan need not be formally approved by the pertinent

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- - organizations or even final before the reasonable assurance finding required by 10 C.F.R. 6 50.47(a)(1) can be made. See, e.g., ALAB 836, 23 NRC at 506, c,  ; . c, -

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508; Cincinnatt Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station,-

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j' Unit No.1), ALAB-727,17 NRC 760,770 (1983).

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N EMERGENCY PLANS: CONTENT (CHANGES)

• An emergency response plan can be changed during the hearing process without the prior approval of the Federal Emergency Management Agency and other interested entities.

'. s APPEAL BOARD: STANDARD OF REVIEW (UNCHALLENGED TESTIMONY)

Testimony not objected to below cannot be challenged on appeal. See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-335, 3 NRC 830,842 n.26 (1976).

APPEARANCES Angus R. Love, Norristown, Pennsylvania, for interveners, inmates of the State Correctional Institution at Graterford, Pennsylvania.

Troy B. Conner, Jr., Robert M. Rader, and Nils N. Nichols, Washington,

-

• D.C., for applicant Philadelphia Electric Company.

' Theodore G. Otto, III, Camp Hill, Pennsylvania, for the Pennsylvania Depart-ment of Corrections.

Benjamin H. Vogler for the Nuclear Regulatory Commission staff.

DECISION In ALAB-845,24 NRC 220,229-33 (1986), we concluded that the Licensing Board had erred in excluding from litigation in this operating license proceeding 275 1

L - - - - - - ------ --_-_ _ - -

t

, a contention submitted by a group of inmates at the State Correctional Institution at Graterford, Pennsylvania (SCIG).1 The contention questioned the adequacy 7- ,

of the " call-up" system to be used to mobilize the SCIO workfon:e in the event

. of a radiological emergency at Limerick necessitating evacuation of SCIO. See ,

, note 9, infra. The inmates were concerned that the commercial telephone network on which the call-up system relies might become overburdened as it

_' '  ; had in past nonradiological emergencies in the area. We determined that this j contention met the basis and specificity requirements of 10 C.F.R. I 2.714(b) and

, . , remanded the matter for further proceedings before the Licensing Board. That

', t Board accordingly held a hearing and, after receiving testimony from witnesses appearing on behalf of the Pennsylvania Department of Corrections, the inmates, and the Federal Emergency Management Agency (FEMA), it concluded that the arrangements for notifying and mobilizing off-duty SCIG correctional officers in the event of a radiological emergency meet the pertinent regulatory requirements and " provide reasonable assurance that adequate protective measures for the

, Graterford inmates can and will be taken." LBP-86-38, 24 NRC 731, 745 (1986).2 The inmates appeal once again, raising three principal arguments. First, they claim that they did not receive a fair and impartial hearing. Second, the inmates complain that the Department of Corrections made substantial, unauthorized changes in the call-up system without notice to them. Finally, they argue that, even with these alterations in the SClO radiological emergency response plan j (RERP), the manpower mobilization system is not adequate to assure an orderly evacuation of the facility. The inmates seek a reversal of the Licensing Board's decision and remand to a different board for a new hearing. See Brief-t)f Graterford Inmates (December 9,1986) [hereafter, " Inmates' Brief"). Applicant Philadelphia Electric Company (PECo), the Department of Corrections, and the NRC staff all oppose the appeal. As explained below, the inmates' appeal fails to establish reversible error, and thus we affirm the Licensing Board's decision.

t A. Fairness of the IIearing

1. The inmates complain s the outset that the hearing following the remand ordered in ALAB-845 was unfairly expedited by the Licensing Board. They I

Sc'O .s hau:J w.th.n :ee !h c p. ma espcsas pathway emergency planrung zone (EFZ) far the tenenck nuclest genersung stauen ALAB-845,24 NRC at 228 a.l.

The Cmimassion decaned review of ALAB-845. See Nouce from the secretary (November 13,1986).

I Fns Crantrumcm 6 reg.usauna requus a fmdmg of " reasonable assurance that adeguste protecove measuns can and will be taken in the event of a radiological emergency" before the issuance of a full-power operating bcenst 10

, CFA $ 50.47(a)(1). This f.nding is made on the basis of how won tbs perunent onsus and offsas ernergency plans meet 16 standards set forth in 10 C.FA $ 5047(b). The standard involved here,10 C.FA 150.47(b)(5),

cancems the adequacy of proceduas for nauncation of ernergency personnet see AIAB-845,24 NRC at 231.

276 l

i l

(

l l

l

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note that there was only a total of two and one-half weeks between the Board's scheduling order and the hearing date (including just one week for discov-ery). The inmates point out that such expedition was particularly unnecessary inasmuch as the Limerick facility was already licensed and operating,

, , ' '~

We are ordinarily reluctant to second-guess a licensing board on scheduling matters, and we entertain appeals on such issues only to ensure that due process has been afforded to a complaining party. Duke Power Co. (Catawba Nuclear

', " ' ' Station, Units 1 and 2), ALAB-813, 22 NRC 59, 74 (1985). Because the

. Licensing Board abbreviated the usual schedule for hearing and prehearing

~ ' ' activity so severely and the need for such expedition was doubtful, a legitimate

due process question is raised here.

. .- - . . Our decision in ALAB-845 remanding the inmates' manpower mobilization i- -

contention was served on Friday, Au2ust 29,1986. Five days later (following

• ^

• the Labet Day weekend), the Board held a telephone conference call with the

- parties, during which it ordered discovery to begin immediately and witness lists to be exchanged by September 12. The Board also scheduled the hearing

- - for completion in one day, September 22 - less than a month after the remand. Licensing Board Order of September 4,1986 (unpublished). The principal reason given by the Board for expediting this matter was that "the schedules of the Board members for other hearings would not permit a hearing for this remand issue until next year" and that this matter should be resolved promptly. LBP-86-38, 24 NRC at 735 n.4. See also Tr. 21,356,21,373-75.

We find no justi6 cation for the schedule established by the Board on re-mand. There is no apparent reason - and the Board gives none - why this matter had to be resolved "as quickly as possible." Tr. 21,375. Remands, in general (especially in the final stages of a proceeding), should of course be addressed promptly and not be allowed to languish. But as the inmates poirn out, the Limerick plant was already fully licensed and operating and PECo thus could not be heard to complain about economic and other losses occasioned by adjudicatory delays. The only party " harmed" by delay would be the inmates, but they did not seek expedition. Moreover, unlike in prior remands involving

~

the Limerick facility, we found no cau:e to order expedited proceedings on the

. SCIO manpower mobilization issue. Compare ALAB-836, 23 NRC 479, 520

• ' (1986); ALAB 819,22 NRC 681,716 (1985), review declined. CLI-86-5,23 NRC 125 (1986); ALAB-809,21 NRC 1605,1615, vacated as moot, CLI 16, 22 NRC 459 (1985); ALAB-806,21 NRC 1183,1193-94 (1985). Instead, e* '

we expected that the proceeding on remand would follow the usual course and

- schedule contemplated by the Commission's Rules of Practice. See ALAB-845,

. 24 NRC at 233.

But while the inmates noted their objections to the expedited schedule to

- the Licensing Board (Tr. 21,373), they do not claim or show us how they

• y+. ... i have been thereby prejudiced. In response to the inmates' carlier complaints 277

=

i i

l about an expedited schedule in this proceeding (albeit one not so truncated as 3 here), we stressed the need for a showing of " specific harm" resulting from l' such action. ALAB-845, 24 NRC at 251. For example, the inmates fail to tell us what discovery or testimony essential to their case was precluded by

, the time constraints in the schedule imposed by the Board. See Inmates

• Brief i at 4-5, See also infra note 5. Thus, despite our serious misgivings about the )

l Licensing Board's severely abbreviated hearing schedule, we are obliged to

" ' l find it " harmless error," providing no legal ground for reversal. See Cleveland 1

s .  ; , }- Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-y ,. , g}

841,24 NRC 64,95, reconsideration denied, ALAB-844,24 NRC 216 (1986);

,, 1 Catawba,22 NRC at 74. '

1 2. The inmates also argue that the Licensing Board unfairly restricted the l'

. j substantive scope of certain of their discovery requests and cross-examination

,i during the hearing. Specifically, they contend that the Board improperly refused l to issue subpoenas directed to Bell Telephone Company of Pennsylvania and the

, Department of Corrections for docurr.ents concerning how those organizations

.. responded during the 1979 accident at Three Mile Island (TMI). The inmates also complain that the Board sustained PECo's objections to the inmates' attempt to cross-examine Richard A. Buell. District Manager of Network Technical

, Services for Pennsylvania Bell, on that same subject. In the inmates' view, t

because the TMI accident occurred within Pennsylvania (where Limerick and SCIG are located) and " involved the same telephone lines," the information they attempted to obtain was " extremely relevant" to the SCIO manpower mobilization issue. Inmates' Brief at 7.

, Our efforts to address the inmates' argument in this regard have been hampered because the Licensing Board neglected to memorialize its denial of the involved subpoena requests.8 PECo and the NRC staff, however, have

,, directed our attention to pertinent portions of the hearing transcript where this

. .i matter was later discussed. The Licensing Board apparently refused to issue the subpoenas for the TMI response records because these requests were " vague" and "overproductive." See Tr. 21,417.' The Board disallowed the inmates' cross-

, examination of Mr. Buell on the subject of Bell Telephone's response to TMI essentially on the ground of hearsay; i.e., Mr. Buell had no personal knowledge of the matter, and the inmates could have obtained the information elsewhere but did not. See Tr. 21,414-20. In its decision, the Board noted that another witness (Richard T. Brown, a local official and communications technician who testified on behalf of the inmates) had testified briefly about dial tone delays during the S

Licemng board deruals of discovery requests and the hke are often pnme candidata for later appeal by

,, aggneved partaes. It should go wahaut saying that we therefore expect the boards to create and to peserve the

. record of acy such action.

the Board did mod indicate that it refused to issue the sutpoenas on the ground of -i- _'i-I 278

TM1 emergency. But the Board was " unable 'to translate this limited information

. , into specific projections of the severity, duration, or geographical extent of any circuit overloading that might result from an emergency at Limerick." LBP . .

. 38,24 NRC at 743.

Dere are severallegalinfirmities in the Board's handling of this matter. First, i *' under the Commission's Rules of Practice, subpoenas are to be issued upon a

- . showing of only " general relevance." 10 C.F.R. 5 2.720(a). The general relevance

. . of records of possible telephone service failure,s, during a past radiological

' - i emergency in a relatively nearby area, to the inmates' contention challenging j'

the adequacy of the telephone-based call-up system at SCIG is patent. Indeed, l

+ ,

', the Board apparently did not question the general relevance of the information ]

sought, only its volume. Tr. 21,417-18. Second, where general relevance has j been shown, the:c is no provision in the Rules of Practice for the Board's sua sponte refusal to issue the subpoenas; rather, a board may quash an already issued subpoena "[o!n motion" of the person or entity against whom discovery  ;

is sought.10 C.F.R. $ 2."20(f). As for the Board's exclusion of Mr. Buell's i I

hearsay testimony, the Board overlooked our long established rule that hearsay is generally admissible in NRC proceedings. See ALAB-836,23 NRC at 509 n.52 (rejecting intervenor complaints about hearsay by PECo witnesses in another phase of this proceeding), and cases cited; Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355,4 NRC 397,411 12 (1976). ,

Dere is also an unfortunate irony in the Board's rulings. The Board clearly {

believed that, prior to the hearing, the inmates should have attempted to obtain j from those with firsthand knowledge the very information they sought to elicit from Mr. Buell at the hearing. "IT. 21,419, 21,420, 21,426. In its decision, i the Board also commented on the " limited information" produced on this subject. LBP-86-38,24 NRC at 743 Yet the inmates' attempts to obtain more

,' , . information were thwarted by the Board's imprope'r denial of the subpoenas. See i Tr. 21,416.5 The Board's erroneous procedural rulings, however, once again do not provide a basis for reversal. As the Board found and we discuss below, fewer

~

off-duty SCIG cmployees than originally contemplated would have to be called in during an emergency, and the timing and means of their mobilization have been altered. De record also shows that, in any event, the SClO call up ,

system is not entirely dependent upon the commercial telephone network, as it appeared previously; several backup means of communication exist. These

. . changes make the operation of the commercial telephone network during the TMI accident essentially immaterial to the ultimate disposition of the inmates' j l

. I SN irunstes do not claim (as they might wen beve), however. that the severe time constraints en discovery also prevemed them from pumutng this matter more doggedly. ,

1 l

279 l

l l

l

contention. Thus, the inmates cannot - indeed, do not - identify any specific harm occasioned by the Licensing Board rulings to which they object here.6

3. The inmates also list several other ways in which they were assertedly

, denied a fair hearing. They argue that the Licensing Board demonstrated its lack

. I ofimpartiality by allowing the Department of Corrections to make changes in the

[ , , .' -

~

RERP without notice or approval. Inmates' Brief at 6. On the substantive merits

> *1

, of this issue, however, we conclude infra pp. 280-82 that it was not improper l , ,

~

for the Department to make these changes. It follows that the Licensing Board's

,' 4 - J .

, allowance of the testimony in this regard cannot be considered improper or

'N- -

unfair to the inmates.

Y ~

The inmates also claim that PECo's counsel, with " regularity," submitted ex

^

parte filings to the Licensing Board Chairman, who " appeared to accept said documents enthusiastically and graciously thanked him for his concern." In-

,y mates

• Brief at 8. But the inmates' total failure to substantiate this charge with any citations or examples precludes giving it any serious attenticn?

j Lastly, the inmates refer to the "past treatment" of their issues in this proceeding. Id. at 7, 3-4. We are well aware of the obstacles the inmates have encountered in their attempt to participate as legitimate interveners. See ALAB-806, 21 NRC 1183; ALAB-809, 21 NRC 1605. Nor can we ignore the procedural shortcuts taken by the Licensing Board after our last remand in ALAB-845. But as we noted in that decision, the inmates sought redress for

their earlier grievances and prevailed. ALAB-845,24 NRC at 250 n.31. As for the additional hurdles encountered on remand of the manpower mobilization contention, the inmates simply have failed to make out a case of reversible error. See supra pp. 277-78, 279-80.

, ,. j B. Changes in the Plan The inmates next argue that the Department of Correction 3 has made changes in the RERP without proper authorization or notice, and that the revised plan thus cannot provide the basis needed for the " reasonable assurance" finding. See supra note 2. 'Ihe changes specifically noted by the inmates are a decrease in

~

'h is also worth noting that the inmates were not enurely foreclosed fmm pursuing the Th0 respmse maner. 'Diey were perrnitted to quesuan their witness. Mr. Brewn, about it. Tr. 21.529. Moreover. it is sigmAcant that, on cross-exandnaticsi by PECo's counsel. Mr. Brown stated that the equipment in use near Th0 si the urne of the accident l 4

g was an "old technology," and that the longest delay in obtaimns a dial tone dunng that ernergency was about 30 l

'l minutes. Tr. 21,533 34.

7

, PECo menuons a Washington tegal Foundauan (%U) serkirig paper on emergency plannmg. authored by

• . one of PECo's counsel and sent by WIJ last year to the Comnussion and various NRC offeials. including the Chairman of the Appeal Panel. See Licensee's Bnef (January 9.1987) at 16. We do not know if the EU sent

. , . this paper to any Licensms Board rnember. In any event. in response to other inte:venors' requests for certain sanctions against PEco and its counsel, both the Commission and we deternuned that no remedial or pumtive

• 'a

. accan was warranted. see CLI.8618,24 NRC 5010986), vacang on erAer troundr AtAB 840,24 NRC 54 (1985).

g ..

280 4

1

_.__________________________o

i the number of off-duty employees who would have to be mobilized in the event of an evacuation of SCIO; less reliance on the commercial telephone network for manpower mobilization; and no provision for removal or transfer, with the

- inmates, of their medical records. Inmates' Brief at 8-11. The inmates' claims,

' - i' however, are without merit.

, . The inmates do not cite any support for their view that " changes in the plan cannot be made . . . without approval from FEMA and PEMA (the

. Pennsylvania Emergency Management Agency)."Id. at 10.8 Nor am we aware of any such limitation. To the contrary, we have held many times in this proceeding nnd elsewhere that, while the overall concept and essential elements must be described, a plan need not be formally approved by the pertinent organizations or even final before a reasonable assurance finding can be made. See, e.g., ALAB-836,23 NRC at 506,508; Clacinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit No.1), ALAB-727,17 NRC 760,770 (1983). A fortiori, a plan can be changed during the hearing process without the prior approval of PEMA and other interested entities.

De inmates' argument about their lack of notice of the changes in the RERP is likewise unavailing. The inmates' counsel did attempt during the prehearing conference call to ascertain whether the Department of Corrections contemplated any modifications in the call-up system, as it had been described during an earlier phase of the proceedmg.' He received no clearcut answer, possibly because the conference occurred so soon after the issuance of ALAB-845 that the Department of Corrections had not yet had an opportunity to determine what its response to the remanded issue would be. See 'IY 21,356-61,21,369. There is no indication in the record, however, that the inmates made any effort during the albeit brief discovery period to get a more definitive answer on this subject from

, . Department of Correctioris personnel. Further, when Charles H. Zimmerman, Superintendent of SCIO, testified at the hearing about the changes in the plan, the inmates did not claim " surprise" and object to the testimony. See, e.g.,

'lY. 21,451 54, 21,468-69, 21,473-74, 21,492-93, 21,496-97. They are therefore foreclosed from challenging this now on appeal. See Florida Power & Light

. Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB 335,3 NRC 830,842 n.26 (1976). Moreover, the inmates once again allege no specific harm as a sThe inmates also complain that the changes were not documented in the plan itacif. Inmates

• Bnef at 10 la response to the Licensing Board's dareston (tr. 21.563-66). however, the system now in use at SClo for mobihzing

. . oH-duty of6ces dunng an emergency has been incorporated into the RERP. Leuer frcrn Theodore G. Ono, m.

to Helen F. Hoyt (october 1,1986); LBP 86-s8, 24 NRC at 743. ses gewa#y AIAB-845. 24 NRC at 249 (emergency planning information should be readUy sveilable to those officials who must decide what protective actions to take); NUREo 0654/ FEMA-REP 1, Rev.1, "Cmens for Preparation and Es thation of Ralological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (1980) at 29 (" plans should i e ,, maks clear what is to be done in an emergency, how it is to be done and by whom").

- 'Under this pmcedure. "sClo employees [would] be mobilized stuough a pyramiding system in which one ernployes telephones tea athars (frorn his or har horns] and so en eril aD persons are nou6ed? AtAB-845. 24 NRC at 229.

281

I result of the lack of notice of the changes in the plan. Indeed the inmates' cross-  ;

examination of Superintendent Zimmerman and development of the record in j this regard appear to have been unimpeded. See, e.g., 'IY. 21,473 74,21,492-93,

{

21,496-99. j

, . Finally, it is worth noting that the changes in the plan that are the subject of the inmates' complaint are neither extraordinary nor contrary to the inmates' expressed concerns.58 For instance, Superintendent Zimmerman testified that j ', , e "

f .

i the pyramid call-up system that was originally described in this proceeding (see

., 4 supra note 9) is, in fact, only partially used. That is, off-duty administrative j 1

and higher-level management personnel would help in the mobilization by  ;

~

• telephoning one another from their homes. The staff on duty at SCIO, however, would contact off-duty nonmanagement personnel directly from SCIO, using ilot only commercial telephone lines but also several other means of communication, including 10 additional lines that are part of the Commonwealth's separate telephone network for its state agencies. "IY. 21,454-59,21,473; Commonwealth Exhibit 1; LBP-86-38, 24 NRC at 737-38. Thus, this change in the plan has led to the very result implicitly sought by the inmates

• contention -less reliance on calls made from off-duty employees' homes via a potentially overburdened public, telephone network.u The change in the numbt g: off-duty employees that would have to be

, mobilized simply represents an appropriate refinement in the testimony. To be sure, the record previously showed that the number of off-duty employees that would need to be mobilized to evacuate SCIO in an emergency was a maximum of 300. See ALAB-845, 24 NRC at 2'l3 n.13 (citing Tr. 20,840-42). Superintendent Zimmerman's testimony now is that no additional staff

. would have to be called in during the day, and fewer than 100 officers would have

! to be mobilized during the night-shift. TY. 21,495-500. The earlier estimate was somewhat ambiguous (due to the Depanment's reluctance to reveal the number of guards on each shift) and was given for a different purpose in connection with another issue. Superintendent Zimmerman's testimony here, on the other hand, is specifically directed for the first time to the inmates' newly admitted manpower mobilization contention, and thus we would expect it to be more precice and reliable. In any event, the inmates do not directly attack this more recent manpower estimate as inadequate to evacuate SCIO in an emergency. The 80he Department of Corrections, m fact. " denies" that any real " changes" have been made to the PIRP. Com.

manweahWs Enef Genuary 12.1987) at 5 n.26. At least as to the movement of medical recoros, uus certamly

. appears true. The Department sistem unequivocally that "[t]he mmates' medical records are at:11 being moved conternporaneously with the inmates [ citation anuned)."(M. In any event. this paziacular matter was not raised

=

', previously on appeal (and perhaps not before the licensing Board either) and Oms is beyond the scope of the

- remand in AIAB-845 and the instant appeal.

H *Dae inmates' argumenta concermns the adequacy of the call up systern as revtsed are discussed b/n pp. 28154.

[

282 i

y n x m

L

(

l

~.

inmates' complaints about the lack of notice and prior approval of the changes

,. in the RERP are themfore unconvincing. -l u.,:- , ,, -

6 7 * '

k

, ,g , , d C. Adequacy of the Call up Procedures

- ? 3 ,f , , , , , ,

n ,, ,

L;;

?.

j *y - .

. J., ,. . , .. N 2 - - >

In their $nal argument, the inmates contend that, even with the modifica-tions in the RERP described above, the system for mobilizing the off-duty E l." 2Wyy j

• q .c. .

, [

SCIO workforce in the event of a radiological emergency is still flawed and f S ., " , - .sE y m ' . does not provide the requisite reasonable assurance. They stress that the 10 ,  ;

p J,f ,

..- , M,- ,

cal telephone system, which remains an integral part of the call-up procedure, -  ;

. +i -T ,

! is not designed for service during natural or manmade disasters. The inmates  !

' - 7> . ., d note tlat many of SCIO's employees live within or near the Limerick EPZ_(see supra note 1), where tiie telephone lines are most likely to be overburdened in I

an emergency. Testimony shows that the availability of 10 additional lines in ,.

• f. , 3 . the Commonwealth's separate telephone network for outgoing calls would not - j

'- necessarily overcome the coagesdon anticipated at the point of receipt of the i call. As for the several back-ip systems mentioned at the hearing, the inmates f assert that Superintendent Z'mmerman did not sufficiently explain how these j

, systems would actually moh'lize the manpower necessary to evacuate SCIO. In j parucular, they claim that tha State Police and other organizations that have a i

backup role in the mobilization process do not have the addresses and telephone l

numbers of the individuals wha would have to be contacted. Inmates' Brief at 12-15.

3 The inmates cormctly peint out that the telephone system is engineered for normal, rather than disaster, service," and that, despite the availability of discrete lines for making outgoing calls from SCIO, some employees may experience difficulty in receiving calls at their homes if a public emergency were i

1

!, J - - to occur. See Tr. 21,421-23, 21,428-29. The inmates, however, overlook several

. , , important facts. First, as noted above, Superintendent Zimmerman testified that, in the event of an evacuation of SCIG, fewer than 100 off-duty employees would

.. have to be called in to supplement the on duty workforce and only during the night-shift. Tr. 21,469, 21,495-97." He testified further that preparations for evacuation (including mobilization of personnel) would begin at the " alert" stage

, , (Tr. 21,469, 21,506) - which, in most accident scenarios, occurs well before a

• ~ '

. v -

" general emergency" is announced to the public and before the corresponding

., strain on the telephone network would be expected to begin. See 10 C.F.R. Part 50, Appendix E, OIV.C; Tr. 21,560. Moreover, even if the telephone system

• ' ' i

• / ' U"Narmar'sevice, homer, is deaned as the sepabilary to provide a dial tane within etree seconds to 97 percent

"' '* of the cuaterners dunns s

• busy hour" of a " busy dey"in wuner. Tr.21,393. 21,424, 21,431 32.

N.' ' , ' .' j

. f.

• ~

13 The lamaiss' aridunesic cancermns ths total sClo waskforce (Inmaiss' Bnef at 14) ignares the fact that a J l . j 4

- substantial number of guanis ass an Asty and thus available to aid in an evacuatian at aD times.

283

__l was overburdened at the same time as mobilization of off-duty SCIO employees was under way, the testimony of the inmates' own witness, Mr. Brown, suggests l

. - ' that there is no reason to expect lengthy delays. Sec 7Y. 21,534. )

' Perhaps most impodant, however, several means of backup communication cxist. SCIG has a hotline to the State Police, an emergency radio system, a

- - " CLEAN machine" (a teletype form of communication with state and local l law enforcement agencies), and pagers for key staff members.24 Each of these  ;

^ ' -

means (as well as the 10 additional Commonwealth trunk linch switched through j Philadelphia) could be used to notify off-duty SCIO personnel through the State i

. . Police or the Department of Corrections' central office in Harrisburg, or to mobilize correctional officers at other Commonwealth institutions to aid in an l evacuation. See Tr. 21,459,21,460-62, 21,470; Commonwealth Exhibit 1: LBP- i S6-38,24 NRC at 741. The inmates' point that Superintendent Zimmerman did l not adequately explain how the backup systems would work is not well taken; l the cited portions of the transcript show otherwise. Purther, the Department of Corrections notes that the State Police, after notification from SCIO over the hotline, could contact the Department's central office in Harrisburg, which has the necessary call-up sheets (including SCIG officers' telephone numbers) and could thus mobilize the necessary staff from there. Commonwealth's Brief at 3 i

& n.11. See also 'IY. 21,461. We are therefore persuaded that there is reasonable I assurance that, in the event of a radiological emergency, sufficient off-duty employees can be timely mobilized to evacuate SCIG by reliance on the public telephone network and various backup means of communication. Compare J Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), l ALAB-697,16 NRC 1265,1269 72 (1982).

I LBP-86-38 is afirmed.

It is so ORDERED.

POR THE APPEAL BOARD

~ C. Jean Shoemaker Secretary to the Appeal Board i

14The Deparanan of Cececiaans also plans to upgrade its telephans service to "pnonsy" er " Class A." which imprwis the abihty to ga a daal tona. Tr.21,458,21,464. see 13P-8638,24 NRC at 739. 741.

284

, s.

Ms. Kohl, Concurring: j

.,., I agree with virtually all of the discussion in the majority opinion and the

, , . , result I take issue only with my colleagoes' silence on a point that, while not

' 3- outcome-determinative, is very troubling in terms of the inmates' " fairness"

,3 ] complaint about the Licensing Board's extremely expedited schedule.

l* ' ,'

, 7, ,

' n' As the majority notes, the Licensing Board's principal reason for expediting this matter was the prior commitments of all three Board members to hearings in two other speciSed proceedings (Scabrook and Braldwood). According to the

].. ,

Board, September 22,1986, was the only date until hnuary 5.987 on which the

, , . 4 , hearing on the inmates' contention could be held. See LDP-86-38,24 NRC at i

735 n.4; 'IY. 21,356, '21,373-75.8 Ordinarily, such statements vc:!d he accepted at face value. But the severely and unnecessarily shortened discovery period (one week) and hearing schedule (one day), along with the implausible circumstance l

that the Board could convene on only one day during aYour-month period, justify closer than usual scrutiny here in response to the inmates' claim of unfairness.2

Contrary to the impression given, the hearing schedules of the Licensing Board members in the two other proceedings identified by the Board did not preclude a more typical schedule here. At the time of the Board's conference

, call and scheduling order (September 3 and 4,1986), only one Board member was scheduled for (and actually later participated in) lengthy hearings during the last four months of 1986.8 This left the Board with several feasible and not infrequently used options. The two remaining Board me"nbers constituted a quorum and could have held the hearing later in the fall, allowing more time for discovery and the usual procedures such as prefiled direct testimony. See 10 l

I De Board Chairman stated:

, [ September 22] is the only available date [fo'] r the members of this Board, who had other pnor commitments on their dockets. Judge liarbour in scabmok, Judge Cole in the Breakwood [ sic] case. !

, have them in seabmok. hat is the only date on which we could all agree we could stand to have tbo

, . heanng, And when I say that that is the only data, I'm talking about that's the only date between now

[ september s,1986) and probably someume ui January,1987.

Tr. 21.373-74.

2 h should also be stressed that the manpower mobilization issue we remanded in ALAB-g45 had never been emplored at any heanns because the Ucensing Board enginally rejected it. Thus, this is not a case where a romand was necessary simply to clean up" a few iterns in connecuan wuh a contenuon that had already been subject to substanual lingstion.

3 Pubbc commission records (Board assignment nouces, pnor scheduhng orders, heanns transcnpts, and subsequent Board issuances) show the following See, e.g., Public Service Co. of New Hampshire (seabenok l

. stauon, Units 1 and 2), Docket Nos. 50443 ol and 50444-o!. Licensing Bonnl order of July 11,1986

, . ';~+ - ,

.. a (unpubhshed); id, Dodost Nos. 505443-oL 1 and 50 444 ot,1, tacensing Board order of August 20,1986 i (unpubbshed). Judge Colo parucipated in many weeks of haanngs dunng the fab of 1986 in conriecuan with the

-. . , , *- i Aradieod proceedmg. on the other hand, Judge Harbour was schedated for, and perucipated in, only a few

• • days of haanngs frown september 29 to october 3,1986, for the sembrook planL In another part of the sembrook

., proceeding, over whidt Judge lloyt presides no hearings were scheduled for, or conducted dunng, the last four months of 1986. Compara Tr. 21.373 74. Further, no major decision in these or any other pmceedmg was assued by any of the Umanck Licensms Board members dunns this pinod.

285 l

I _

, i 5 -

l, <, C.F.R. 52.721(d). The third member either could have declined to participate in l , .

N.' -

. the ultimate decision or could have decided the case on the basis of his review

- of the transcript and written filings. The option most often employed when.such n . '- -

scheduling conflicts arise, however, is reconstitution of the Board pursuant to 10 C.F.R. t 2.704(6). See Sufolk County and State of New York Motion to Rescind Reconstitution of Board [Long Island Lighring Co.] (Shoreham Nuclear Power

., ]

1 Station, Unit 1), LBP-86-37A,24 NRC 726,729 & n.2 (1986) (licensing boards

,' .j i,-

( . N ., reconstituted 15 times in last two fiscal years).' The notion that September 22

- '! was the one and only day on which the hearing could be held (TY. 21,373-75) j .

+ ' '. .,

was therefore simply not correct.8 a Where a party is entitled to a hearing, as here, a board should make a diligent effort to establish a reasonable schedule for discovery and the hearing itself. In

- order to accomplish the Commission's dual objectives of "an efficient hearing" that " moves along at an expeditious pace, consistent with the demands of fairness," such a schedule should primarily preserve a party's due process rights and, secondarily, accoinmodaic the legitimate conflicts of the board members and other parties. Statement of Policy on Conduct of Licensing Proceedings, CLI-818,13 NRC 452,453 (1981). By failing even to consider the readily available options discussed above, the Licensing Board here effectively and arbitrarily reversed these priorities.e Because the inmates have not demonstrated

any actual harm resulting from the Board's schedule, however, I must reluctantly

. ~

> agree with the majority that there is no legal ground for reversal.

.e ,

s s

'This option (reconstitunon) was des avausble one if all three Board manbers had been fuDy commined to other proceedmps durms the lauer pan of 1986.

• 8 the Board also implied that september 22 was the only day on which a roorn for the hearms could be obtamed

• *- in Philadelphia. Tr. 21,374. No mentian of other possibis locaties closer to the plars site was made, however.

• j.* 'WhDe my ceDesgues "And no justi8cetion for the schedule established by the Board" and

• expected that the

. i i

' pmoseding on romand would follow the usual course and schedule comamplated by the Comnussion's Rule Practice." they do not indicate what the Board should have done in the a_--- sse supre p. 277. Employmg a

me of the options I have set farth above would have trurumtzed any delay while fully preserving the inmates' beanns rishna.

286

_ ~ - - - - - ________ _

Atomic Safety and Licensing Boards issuances o ATOMIC SAFETY AND LICENSING BOARD PANEL (f)

B. Paul Cotter,

• Chairman b Robert M. Lazo, *Vice Chairman (Executive)

Frederick J. Shon, *Vice Chairman (Technical)

T Members O

Dr. George C. Anderson Herbert Grossman* 'Dr. Emmoth A. Luebke' Charles Bechhoefer*

Peter B. Bloch' Dr. Cadet H. Hand, Jr.

Jerry Harbour' Dr. Kenneth A. McCollom Morton B. Margulies' h

Glenn O. Bright

• Dr. Osvid L. Hetrick Gary L. Milhollin -

Dr. A. Dixon Callihan Ernest E. Hill Marshall E. Miller James H. Carpenter

• Hugh K. Clerk Dr. Frank F. Hooper Helen F. Hoyt' Dr. Peter A. Morris' Dr. Oscar H. Paris'

([)

Dr. Richard F. Cole

• Elizabeth B. Johnson Dr. David R. Schink .

Dr. Michael A. Duggan Dr. Walter H. Jordan James L. Kelley' Ivan W. Smith

• Dr. Martin J. Steindler Dr. George A. Ferguson Dr. Harry Foreman Jerry R. Kline' Dr. Quentin J. Stober Richard F, Foster Seymour Wenner

• Dr. James C. Lamb til John H Frye lit' Gustave A. Unenberger' Sheldon J. Wolfe' James P. Gleason Dr. Unda W. Uttle

• Awmanent panel members l

\.-

t1{

l l

l, 1

?'  ; , Cite as 25 NRC 287 (1987) LBP 8711

~~

n 4' " '

UNITED STATES OF AMERICA l ..' '. NUCLEAR REGULATORY COMMISSION

<. ,[ , -

,..s 4

i .. , , . .

[/ ' ' V ,

',*3- , , "1) Before Administrative Judges:

l' , >

..~.  ;,

J3v [

.t,, . '

Helen F. Hoyt

' " ~

c 7 ', -

s7 Jerry R. Kline, Technical Advisor

a. ,. , .

m

'l

,.r, , -

'i' 'N in the Matter of Docket No. 50 346-ML (ASLBP No. 86-525-01 ML)

I 5

i

' ' A I .

TOLEDO EDISON COMPANY, et al.

(Devis-Besse Nuclear Power Statlon, Unit 1) April 15,1987 t

l In this Decision, the Presiding Officer affirms the decision of the Commis-sion to grant Licensee's application to dispose of water treatment sludge and

]  ; secondary-side demineralized resins by land burial at the site of the Davis-Besse

- i Nuclear Power Station. The Board finds that the low-level radioactive waste, i mixed with the water treatment plant waste, presents no hazard to public health and safety because the means of burial securely confines the waste; water will

,' i not infiltrate the engineered waste disposal cells on the site; and there is reason-able assurance that neither radioactive nor chemical substances will be carried

. a ,

into the ground water.

, WASTE DISPOSAL Reasonable assurance that the public health and safety and environment will

. . be protected when waste is buried can be found if (a) secure confinement of waste at its burial location is assured, even if the waste is a significant source of radioactive or chemically toxic constituents; or (b) the waste itself is not a

, significant source of hazardous mata. rials, even if the conditions of confinement

,- I are not so secure as to guarantee that nothing would escape from the burial site

. ..- , , in the future.

a'. . ; . - '

1

,,',Y,' ', , * ' ,--- .i '. ^i

.[ *;

a. . ,

, 287

% t h ,

1 h

()-

~

U;

• ' ' TABLE OF CONTENTS

' 7 .

2

• Page 7 ;' ,

288

/. ,;

'.. L DECI SION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. ' ' ',. 288 i

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

290

• ~

'. ,, N Project Description d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contested Issues . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291

.;'s. ,

. j 298 Conclusl on ...........................................

7.?;;ty '

. d 299 A II. FINDINGS OF FACT ................................. 299 o, Uncontested Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

- Contested Issues . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . 303 VL .

IIL CONCLUSIONS OF LAW ......'........................ 322 l

322 IV. ORD ER . . . . . . . . . . . d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DECISION ON THE DISPOSAL OF WASTE AT DAVIS-BESSE L DECISION

- Introduction This case concerns a dispute by several parties with the Toledo Edison Com-pany over its authority to dispose of water treatment sludge and secondary-si demineralized resins by lard burial at the site of the Davis Besse Nuclear Power Station located near Locust Point. Ohio, on the shore of Lake Erie. The Licensee

- first filed an application for authority'ai bury waste at Davis-Besse on July 14, i= 1983, in accordance with 10 C.FA 6 20.302(a). The Nuclear Regulatory Com-mission approved the request on October 15.1985 after issuing an environ-l .

mental assessment with a finding of no significant impact. 50 Fed. Reg. 41.265 (1985).

Several individuals pd organizations requested a hearing after the authority

• to dispose of waste oit site had been granted by the Nuclear Regulatory Commission. .

• On Febru.a.ry 20.1986, the Commission instituted a proceeding in this case

,J

~ '

to be conducted by informal prrcedures in accordance with its decision in

, Kerr-McGec Corp. (West Chicago Rare Earths Facility). CLI 82 2.15 NRC

• 232 (1982). af'd, West Chicago v. NRC. 701 F.2d 632 (7th Cir.1983). The

, l. i. , .

r ?, .

Presiding Officer was appointed on February 25.1986, to conduct the informa proceeding. On March 10,1986. the Presiding Officer published an order 288 l

_____,________y_ _

... nyi

/

f

/

. ) provided notice of the proceeding, provided interested parties an opportunity to intervene, and set forth pleading requirements. 51 Fed. Reg. 8920 (1986).

. ,: ;5.. -  !< ., -j Eight petitions to intervene were filed. Four w6te rejected for lack of standing

c. '

and four were admitted. The admitted parties were the State of Ohio (State);

- 4 , .! Toledo Coalition for Safe Energy and Susan A. Carter (TCSE); Western Reserve Qp

.< .y ., ,. i Alliance (WRA); and Save Our State from Nuclear Waste, Consumers League

,j E 1 , ',. *f of Ohio, Arnold Gleisser, and Genevieve S. Cook (SOS /CLO). Memorandum

^~

, 7.c ,

j .' .

3] and Order (May 29,1986), printed in 51 Fed. Reg. 20,562 (1986). Based on

. ,, 7 >

2 % ., , ,.1 allegations in the admitted petitions, the Presiding Officer designated twenty

. 1 questions to be addressed in the hearing and ordered the parties to submit

' K)..'

g .b ., .

O[' i , 3

• preSled written testimony. Testimony was prefiled by the Licensee, the State, C,

. . , . . .. l and SOS /CLO. The NRC Staff chose not to participate. Hearings were held in e

.w, . gj f, ,. ,i Sandusky, Ohio, on August 5-7,1986. Limited appeamnce statements were also C 7,.' ,

A," '. taken.

- i '

. The Presiding Officer's authority in G.is case is to decide, based on the hearing record, whether Licensee's already existing permission to bury wastes on the Davis-Besse site should be affirmed, reversed, or conditioned for reasons of radiological safety or environmental impact.

, in its review the Staff found that for the proposed project occupational doses

+

j will be maintained as low as reasonably achievable and within the limits of 10 cg C.F.R. Part 20. It also considered environmental effects and found that the project

. would have no significant effect on the quality of the human environ sent. 50 Fed. Reg. 41,265 (1985). In this proceeding, intervening parties contest both

' j

;,, i findings. Their reasons for disagreement were set forth in their petitions to intervene. However, in this irformal proceeding no formal contentions were

- , filed and the Presiding Officer chose not to require the parties to formulate

, contentions. Instead, the Presiding Officer formulated twenty questions to the parties based on their expressed concerns that would, if responded to fully, yield l, . , a factual record sufficient to decide whether the project would conform to NRC's

- regulations governing radiological safety and environmental impact. Parties were directed to respond to the Presiding Officer's questions in their prefiled testimony. 51 Fed. Reg. 20,563 (1986).

,j; The Licensee addressed all twenty questions in its prefiled testimony. 'Ihe

(/, State, which had been designated lead Intervenor, addressed questions where it

,7* ,'a ,

had a disagreement with Licermee. SOS /CLO addressed a few of the questions, 4

< .. , and TCSE and WRA did not prefile testimony. The questions established the

I ,

, scope of the hearing to which no party objected. The Presiding Officer permitted

1 -

cross examination of witnesses by the parties at the hearing in order to promote i . ,,

efficiency and development of a complete record. The State assumed the lead 7 f. . -

, , . , in cross-examination. Other parties were permitted to explore only those issues l3 , i4 ~ , . - .- of concern to them that the State did not explore in its examination.

lc. -

. . ~, d,}, . ,

0 289 I I '

i 9

'l

- ~ '

r p 77 ., r ,

dings -

5 of fact and all did so.Tr. 959.8 Additionally, the Licensee was directed to prepa e i

- and file a project plan which you'rt include the location, design, and operational features of the burial project. Tr.'9fA.69. The Licensee did 50 after the record was cicsed, and all pardes dere permittei opportunity to comment. None did ,

so. { .\ {

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f Hon ~, .,! [ ' '

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1 Project Descrir/ I )

t ;l '

1 The Davis.E asse plant operates its own water trermant facility to purify Lake Erie water for uce in plant systems and iir J:r'sonal u'sc. The Watmen: process yields a mixture df water treatment chenals and laka water impuritigs a: (m insoluble sludge whic!Iis dischari;a,d to a <eriling basik ov, site. ".1 a sepxrate process the Licensee purifiet water c2 W9 secondary side of the reac?cr by a process of demineralizaticci tuing pow 4 red ion.exchage rdins. Tne resins

.'I remove both radioactive and nonradioactlyr material from thnecondary-side water in the plant. 'Ilyj resins are also disch.trged to the settling bash ,ahr, y

use. The sludge or sediment f 3 the sculing basins therefore censists of a mixture

• of nonradioactive watercestment plart, waste and slightly radioactive secondary s side demineralized resins. Each year about 1000 cubic feet of resin and SKO '

cubic feet of water treatment waste are transferred to the st.tlirig basin. Findings

. 1,2,1 and 4. 50 Fed. Reg. 41,1ti5 (1985) / ,j

• Ihe Licensee expects to continue the fractice of discharging waste to the '

settling basin. However, it requested perm Esion from NRC to dredge the basin once each 5 years ami hansfer the accumulated waste to another location on site for permanem lan ,} Utrial. Pur5? cf mixed dune is expected to occur six times

- dtdng the antici xited 30.yeaWeti'ne of the plant under that proposal. Findings ,

• * )

S and 6. }

Permission to carry o G N'ad disposal of waste on the Davis Bessc site was requested und.r an NRO regulation (10 C.F.R. (20.302(a)) that provides a method for cbr frirg approval for disposhp of hrge volumes of a aste containing very low leveis c( radioactivity by mcans other than transfer to a commercial

, burial site. The NRC notified all re:dtor licensees of the availability of this approach under in regulations in 1909.(ME Information Notice No. 83-05:

Obtaining Approval for Disposing of Very Low-Level Radioactive Waste -

- 10 C.F.R. 6 20.302). In its notice de Staff t,ited the Commission's recognition of the need for provisions tor exemption of some low-level, wastes from the

)

I one E ta dated seriember s.1986, was subnuund by Coun,e'.i4bwmnor.on behalf of TCsE and sos /CLD, and a se;i nn e pro se Ahng dated september 6.1986. was swinned on behalf of sos /CLD. Under the informal procedurst swermng ons case and wuhaut objecuan or conressa from the pues, the Aesidmg officer considered

~

all f6hnts submined esen though same overlap occuM.

290 t

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1 requirements of 10 C.F.R. Part 61 and that pending further development of

, :q

, . . 4, , ,le ' ,

regulations such exemption could be examined on a case-by case basis under i, .f,$ . L,g e.7 J . ' 1/ ) , , { , ' 5 6 20.302.

• - *4

ifyfr.. g cN ,

iV V t : idiQS 79 p 7 . . m g y + 2 _

V ,s- Contested Issues q N ,7'.n y, m g $ ;. .,,c ,. E n

$;j""s '

The parties to this dispute are in disagreement as to whether the waste sludge 1h,hg;[,$gg s.W;N and ion exchange msins generated by operations at the Davis.Besse site can yMfV h f .h. [-[, ;'.?,j be disposed of by land burial on site without endangering public health and

[.[p.pg A 7Vg:p'.Y* (v 6 6 f h .! ,

e safety or the environment. Tbledo Edison believes the answer is affirmative for j, ,

., r .-.

l' a number of reasons. In its view the mixed waste has very low radioactivity

.. /. ; ,l" l and is inherently nonhazardous to health; it will be buried in a geologically

, . _ f s, */ 11, / ' jl favorable medium that will prevent contact or transport by water; the design .

of the burial cells will further act t.. prevent tmnsport of dissolved waste out l ' * , -

';.' ' p, ,f p'; 'd of the burial cells; floods will not breach the cells or transport material out of l .

f 3 them; and the burial site will not be* constructed in and will have no impact on t a; # '

Navarre Marsh or any of its biota including any possible endangered species

- which might forage there on occasion. Initial Decision on the Disposal of Waste

at Davis Besse, Toledo Edison Co., et al, September 8,1986.

L

) (' I.~ , ' '

The State of Ohio and other Interveners disagree with the Licensee. In their

((~

view, the information on which Licensee's analysis is based is not sufficient

to support its conclusions; the waste may be more hazardous than Licensee

!#. 7 , [ states; the geologic medium of disposal might have sand or gravel pathways for

,j 3

,s , J.S > M ^ ,

water transport of materials from the waste into the ground water; the design of the burial cells may not be as secure as Licensee alleges because pathways

~

' ~ ~ " ' might exist for water to enter and escape from the cellsi record high water N- '

i A n! . t l levels in Lake Erie might allow future storm surges to flood the burial site and breach or erode the burial cells; and construction and operation of the burial

, O- .

,' site might impact on the biota of Navarre Marsh or Lake Eric. Findings of Fact M and Conclusions of Law proposed by the State of Ohio, September 5,1986.

Interveners TCSE and SOS /CLO oppose the burial proposal on similar fac-

.q. .g . _ ,. ,,

e tual bases as the State. Proposed Findings of Fact and Conclusions ofIaw of

"' 3 Interveners Save Our State from Radioactive Waste, Toledo Coalition for Safe

/, f . Energy, Susan A. Carter, Arnold Gleisser, Genevieve S. Cook, and Consumers'

. League of Ohio, September 5,1986. Western Reserve Alliance opposes the

~ ~7' i burial proposal by argument that a full record for decision was not developed &nd

.J[,.

,' that the Licensing Board failed to perform its general role. It argues further that

.1,y%J ~ , there was bad faith in a past licensing hearing because Toledo Edison allegedly O

stated that there would be no disposal of solid waste on site under either the

.'fn' ,

3

~ '.:

• y,. -u . +

. 1 E

291 se t

m______m_.a.__.,m m m

construction permit or operating license,2 and that this proposal requires an

. . amendment to the Davis-Besse operating license which creates new hearing a rights and a need to strike a new cost-benefit balance. Finally, WRA asserts that burying radioactive wastes on site is a violation of NRC's public trust

- , ' to protect natural resources and in particular Lake Erie for the use of future

• - .- , generations. Western Reserve Alliance's Statement, September 8,1986.

1 The State of Ohio was designated lead Intervenor in this informal proceeding

. ,. and it presented factual evidence contrary to Licer.see's at the hearing. SOS /CLO

' ' also sponsored an expert witness. He other Interveners rely on the State's f ,.  ; ,

evidence or legal argument in their attempt to defeat the Licensee's waste burial plan. I turn first to resolution of the factual disputes as promulgated principally

. *l by the State of Ohio.

I note at the outset that the hearing on this matter developed a full and

,] complete factual record that will enable a fair resolution of this controversy. In-tervenors' complaints that the details of the burial proposal had not been fully

~

! and publicly disclosed prior to the hearing may well have some validity. De informal hearing, however, remedied whatever deficiency of public information Interveners might have initially perceived since a comprehensive record was de-veloped. Thus, whether the NRC's grant of permission to conduct onsite burial of waste should be affirmed or reversed now turns on the factual merits of the

case as they were disclosed in the hearing.8 There is no meaningful dispute in this case as to the location of the burial cells

' on site relative to Lake Erie or Navarre Marsh nor is there any meaningful dispute as to the principal features of the design and construction of the individual ,

burial cells. It is clear and agreed to by all parties that the waste consists of a mixture of spent ion-exchange resins containing small amounts of radioactivity

.i and relatively much larger volumes of sludge which is a waste product from the

-. ordinary treatment (puriScation and clarification) of lake Erie water for use at the Davis Besse plant. Findings 719.

It is undisputed that the principal chemical components of the sludge and largest contributor to its volume are calcium hydroxide, sodium aluminate, and calcium carbonate. No party alleges that these chemicals are potentially harmful to life or that they are likely to be dissolved by water and transported out of the burial site. This seems most reasonable since the compounds arise as the insoluble by-products of the treatment of water for human use and they will 2T1us a"egauan cesensa no consideranon since tha hconsms heannas an quarlon wars hold in 1970 while ilus arphestion was made under a Carr:nussion Policy promulgated in 1983 in connection with miemsking on 10 C.F.R. Pan 61. The Comnussion has the authonty to change its rules and policies as new information becanes

< available.

Il nyect WRA's assertion in hs pmposed Andings that the record is stir inadequais for decision and that this pmposal somehow creates yet another right to addinanal heanngs. ' Die Endmgs of fact hwein am founded cut a

• comprehensive factual record. Additional!y,ilns hearmg sausfied any haanng nghts WRA had acconhng to the Commissicn order insututing the proceeding 292 l

l

l have resided in contact with water in the disposal pond for years prior to their

. being permanently disposed of by land burial. Findings 6,9, and 108.

.? , .

Similarly, boJi the Staff's radiological analysis and the expanded analyses of the Licensee show extremely low radiological hazards of waste burial that the State did not dispute. 'Ihe Staff analysis showed that the waste to be dredged and 3 -

.e buried once each 5 yean would contain a total of 8.5 millicuries of radioactivity "l' ' -

^

." ' ]y .

(domM*d by Co-58, Cs 134, and Cs-137). In response to Board questions the Licensee testiSed that at the end of 30 years when six individuallots of waste o e; have beau buried, the maximum amount of radioactivity that could be in the l

}- . ,-

' :]i burial cells will be 0.036 curie (36 millicuries) and that the likely amount is less. Findings 82,83, and 91.

The dose to humans by direct exposure, terrestrial food pathways, or aquatic food chains after 30 years of burial activity would be less than 1 millirem per

. year (mrem /yr) under the most conservative assumptions. Not a single fatal cancer would be expected from such doses even if the exposed population were much larger than could be present at the burial site under any reasonable scenario. Findings 84103.

The Licensee's factual radiological analysis went unanswered by the state of Ohio at the hearing. The State and TCSE preferred to argue instead in their proposed findings that the cumulative impact of radioactivity in Lake Erie i from other sources together with that from Davis-Besse would cause a public i health hazard even if the Davis-Besse waste could not create such a hazard alone. TCSE PF at 910; State PF B 5 at 7. I reject that argument for the reason

'! that a cumulative impact argument is itself subject to resolution based on factual data. If any data exist showir.g that Lake Erie now has cumulative levels of radioactivity that could create a public health hazard, Interveners are obligated to come forward with it if they hope to defeat a project that standing alone portends no significant radiological hazard to public health and safety. They did

- not do so and thus their argument is remote and speculative.

I am similarly unpersuaded with Interveners' arguments that the project should be rejected based on the radiation risk implicit in the linear no threshold dose-response relationship used for risk estimation. State PF B-6 at 7-8. It is true that some risk can be calculated for any level of radiation under that a hypothesis. However, no NRC regulation requires a finding of zero risk before a proposed project can be acceptable. The Licensee used the linear hypothesis consistent with accepted methodology to estimate cancer risk to an individual who might be exposed at the rate of 1 mrem /yr at the burial site. The risk is

. 1.58 in 10 million per year. The dose estimates, however, were conservatively made snd !!kely to be 1:ss than 1 mrem /yr. Ren!irtica!!y egemd creer risks are therefore even less than stated by Licensee. Risks of genetic abnormalities

'. t 'l ,

4

., .- i are also extremely low. Findings 104,105, and 106.

293

Thus, I conclude that the waste itself could not cause a radiological hazard i

. in excess of limits prescribed in 10 C.F.R. Part 20 under any reasonable

,,- . ', management scenario either during the life of the plant or after its license to n ,. 3 operate expires. .

.. . The environmental impacts the waste could have because of its chemical

,e g,

,. .l constituents were thoroughly explored at the hearing. Interveners sought to

• ' ^

>j

. show that chemical hazards to the public could arise from two sources. The

, , l ", .; lon-exchange resins themselves might have some toxic effect on humans or

'y#' 1 wildlife in their view, and heavy metals or organic substances contained as

]

trace constituents of the water treatment sludge might create health hazards.

. . No credible evidence was produced that the lon-exchange resins themselves could cause a public health hazard. The evidence instead shows that ion-exchange resins are insoluble and could not dissolve and pollute ground water; they are nondegradable either by chemical or biological processes, and they are nontoxic even when ingested directly. Findings 113117,119-121. I am similarly unpersuaded that any credible mechanism exists for eluting toxic elements or radioactive elements from the resins while they lie buried in the earth. Strong chemical treatment which will not be present at the burial site is required to clute resins. Findings 119 and 120. No party disputes that the resins lie initially with the water treatment sludge in an aqueous envimnment for up to 5 years in the settling ponds prior to burial. It stretches the limits of credulity to suppose that resins in that environment successfully resist elution and degradation only

. ' to yield later to the much smaller amounts of water that might slowly percolate i through the soils of a burial site.

Although the State attacked Licensee's proposal by suggesting in its proposed findings that Licensee did not have a firm understanding of the effects of ingestion of resins, no credible pathway for ingestion by man or animal were brought out. Indeed, it is difficult to see how a direct ingestion pathway for resin particles might exist given that the resins are mixed with a large volume of water treatment sludge, that they will be solidified before burial and then will be deposited in burial cells having both a thick and impervious liner below and cover over the top.

'Ihe Licensee performed chemical analyses by EPA-approved methods on the sludge that it wishes to bury. The results show that the sludge contains trace metals and organic substances at concentrations too low to meet the definition of a hazardous waste under EPA regulations. The State acknowledges that this is so but argues that the sludge nevertheless contains organic and inorganic constituents that could be hazardous to human health. The State's argument is riot persuasive because the definition of hazardous waste specifically includes consideration of both the presence of a hazardous constituent and its concentration. Waste may be nonhazardous even if potentially hazardous 294

constituents are present if their concentration is below established limits. That

- is the case with the Davis-Besse waste. Findings 107 112.  ;

I consider the possible impacts of chemical nonradioactive waste under the requirements of 10 C.F.R. Part $1 which requires NRC to consider the

' ~' '

consequences of its actions to the environment. I also consider EPA regulations s

',.! governing hazardous waste for purpose of guidance but do not specifically order

.- f . . .,

the enforcement of any EPA regulation in this decision.

y' pj After careful consideration of the evidence, the Presiding Officer concludes

that the waste material proposed for burial at Davis-Besse site is of inherently

.]'

i- ,

low hazard to human or ammal health because its radioactive and chemical m *< ,I constituents are nontoxic or occur in concentrations too small to create a significant safety or environmental risk. Dat conclusion alone might be sufficient to find reasonable assurance that the public health and safety and environment

• will be protected if this proposal is approved.

However, I need not rely on that conclusion alone because additional evidence

! exists showing that whatever the inherent toxicity of the waste, the conditions of burial are favorable to its secure confinement at the burial site. Rus, even if the i

waste did have hazardous characteristics, its constituents, either radioactive or chemical, would be unlikely to be transported by leaching into the ground water in sufScient quantities to cause harm to life or the environment. This is because

- there is minimal ground water flow through the glacial deposits that will contain the buried wastes. The wastes will not be within reach of a water table because j

the water table occurs at the top of the underlying bedrock which lies 15 feet l below the land surface and by design,7 feet below the lower surface of the j burial cells. De glacial deposits retard the flow of percolating water because i

, , I of their high clay content. Hey are naturally unsaturated and act to confine

' water in the dolomite bedrock formation which is under artesian pressure and )

would rise to form a piezometric water surface above the bedrock were it not

' for the impermeable characteristics of the glacial till. The buried wastes will ,

therefore not be in an environment where there is percolating water. Thus, no l i

significant pathway exists for buried wastes to dissolve or for dissolved wastes

. to be returned to the biosphere where they might contribute to environmental l hazard. Findings 32-67.

i ne engineering design of the burial cells provides a further barrier to the transport of waste material out of the burial sites.

e ,' He cells will be lined with compact clay layers and an impervious bar- l i

rier. The waste material will be solidified with cement kiln dust before it is

• buried. After burial the waste cells will be capped with an impervious clay layer j as well as a sand or gravel drainage layer and a topsoil layer which will be

'* , seeded with grasses and clover. Findings 10 and 11. Water entry into the burial

', cell will be retarded by the caps. Any water that penetrates this barrier will be retarded from leaving the cell by the underlying barriers. Any water that does 295 j l

4

. somehow enter a cell, contact the waste, and then escape will enter the naturally

,- impermeable and unsaturated glacial till where it must traverse about 7 feet

'l' ,' downward before it could contact the bedrock aquifer.

The bedrock aquifer has a low hydraulic gradient which results in slow water

,, , - movement toward Lake Erie and ultimate discharge offshore through bedrock

, S'..e outcrops on the lake bottom. Lake Erie water will further dilute any residual

,,M '

M 1' -"

J ^

trace of material that somehow escapes the natural and engineered barriers that f-l$Q ,

~4 act to retard entry into the ground water.

The burial site has been flooded in past yean as a result of storm surges on L ', - Lake Eric. Based on past records, it is reasonable to infer that occasional floods

,,',.. will occur throughout the indefinite future at the site. Storm-induced flooding is S '^ l not likely to breach the dikes surrounding the burial cells because the top of the I

4 dikes will be about 2 feet higher than the highest water level of record. Findings

20-27.

The burial site is an inland site and will not be subject to crosion from wave attack similar to that which occurs at dikes along the lake shore. Flood water that could occur at the site will be shallow, and the size of possible waves will be limited by physical processes of wave formation in shallow water. In any event, the dike slopes will be covered by rip-rap which will protect them from any possible wave action. All of the foregoing factors lead to the reasonable predictive inference that even though flooding will likely occur at the burial site

, , in the future, damage to the cells that could create a threat to public health and

{ safety is extremely unlikely. Findings 28-31.

, 1 Physical construction activities at the burial site do not create environmental concerns. The location of the burial cells is now adequately identified. It is

• , clear that the burial cells will not be constructed within the bounds of Navarre Marsh which is a wildlife refuge operated by the U.S. Fish and Wildlife ]

• ^

Service. Findings 15-19. The Navarre Marsh is not a critical habitat for any

{

species of wildlife on the federal endangered species list. Findings 68-81. No 1

. significant impacts from construction or operation of the burial site have been j identified. In particular, there is no credible evidence that ground water flowing l past the marsh from the burial site could somehow escape the bedrock aquifer in a manner that could lead to pollution of the marsh. Indeed, the analysis of ground water contamination in this decision shows that little or no contamination of the ground water with radioactive materials or hazardous chemicals is likely. Further, the glacial till overlying the bedrock aquifer is only slightly permeable, and no natural pathway exists to transport ground water upward from the bedrock into the till at the marsh site. Finding 45. There is reasonable assurance, therefore, l that there will be no significant environmental impact on the marsh from the

. proposed project.

I The conclusion is equally valid regarding the aquatic environment. Findings l

. 72-78. No construction impacts on the aquatic environment have been identi-296

i i

1 j

fled. The only pathway for chemical or radiological pollutants to reach Lake Erie I

is via the dolomite aquifer that underlies the burial site and outcrops offshore in

• Lake Erie. Multiple impedances to transport of dissolved material will greatly f retard or entirely prevent entry of chemical or radioactive substances into the l ground water. Transport in the ground water is extremely slow, and the lake l D '

water will dilute whatever traces of chemical materials that might ultimately l t'- j reach the lake, hken together these factors all lead to the conclusion that there

.,,. l Ti is more than reasonable assurance; indeed, there is virtual certainty that the

_', public health and safety and the environment will not be endangered by burial l .

, j j

' of nonhazardous waste on the Davis-Besse site.d He Licensee has adequately described its administrative provisions for planning, contracting, and constructing the burial site. Findings 122-139. It has i

made reasonable provisions for monitoring both the burial cells after closure  ;

'd *

-l and for monitoring ground water by sampling wells in the vicinity of the site. It

. . , 7 has committed to making such repairs as are needed to maintain integrity of the dikes and cells and to keep permanent records of its burial activities.

De Licensee described its plans and procedures for managing burial site operations in testimony at the hearing. The Presiding Officer, however, requested the Licensee to prepare and submit a project plan that would consolidate

' and summarize its plans and commitments for the burial project in a single document. In response and after the record was closed, the Licensee submitted to the Presiding Officer a document dated September 1986, entitled " Project Plan / Conceptual Design Disposal of Very Low Level Radioactive Waste at Davis-Besse Site." All parties were permitted the opportunity.to comment on the plan but none did so. The document serves to present, in orderly and j systematic fashion, project design and management information that is already

• in the hearing record. 'IY. 964-69.

• , -l

• - 4 De plan is necessarily incomplete at this time because the Licensee must seek a Permit to Install from the State of Ohio before the proposed project can go forward. The possibility exists that the State may impose additional requirements on the Licensee before approving the project.

The NRC Staff has concluded that when the Davis-Besse reactor is decom-missioned, the burial site could be released for unrestricted use. Here are no

^

data in the hearing record that are inconsistent with the Staff conclusion. Nev-

' ertheless, evolving technology and changing standards might lead to a different conclusion at some point in the future, particularly where, as here, decommis-sioning may occur some 30 years from now.

~

"This fmdmg leads me to repet WRA's objection that this project wi1 if implanemed. somehow lead to e violation d NRC's pubhc trust to pmtect ennranmemal resources includmg Lake Ene. No pubbe trust will be violated because no significant impsets on the lake will occur.

297

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Because of the possibility of changed technology.or standards. in the future,

,~ --

r . -. - the Presiding Officer considers it reasonable to take steps now to ensure that j '- -

"' ', 1 a systematic and focused review of the burial project takes place at the time '

1( ' ce 4 of decommissioning and before the burial site is released to the public for 3 ,

.- '.. . unrestricted use.

, ppm - "

,, ' S , . , n . , ,  ;. I therefore adopt Licensee's conceptual management plan as its commit-lmQ- ,A 1.,

Rf'~>.

". I ment to design, manage, and operate the burial site and to keep permanent i d, ,

.! . 2 ].,

t .

records. Further, it is ordered that the StaK's environmental assessment for this : l g;fy;y@p project be amended to include Licensee's plan. Responsibility for review and

j. - u .e ; 3. , , ,

^ ' ' " ,. 3 p, . approval of changes in the plan that might result from State of Ohio review

. f Eg .h J ' , ,;u- ,

j{ is delegated to the NRC Staff. Such delegation is appropriate because there is k yn ,

,, i. 3 .

nothing in the plan that is new to the record or involves an unresolved issue in 0 ;I~

4 ,.n,- ,7:, adjudication. Approval of changes that are consistent with the ultimate findings 7 .t-

,' ,J of this decision and do not result in higher risk to the public health and safety

^ ,'n ~

fc '

, .I than found herein constitutes an administrative function which is appropriate for 9 .

, l the Staff to perform.

Conclusion Reasonable assurance that the public health and safety and environment will 4 be protected when waste is buried can be found if either of two conditions are

, ., met. Anurance of secure confinement of waste at its burial location is alone

• Y 4 ,

. . sufficient to warrant such a Anding even if the waste is a signiScant source of radioactive or chemically toxic constituents. This is a condition that must ptevail

_ i D' before commercial waste burial sites may be licensed under 10 C.F.R.' Part

..~

61. Alternatively, confidence that the waste itself is not a significant source of f ,

l hazardous matenals provides assurance, even if the conditions of confinement are not so secure as to guarantee that nothing would escape from the burial site

? "

in the future.8 This is the condition under which NRC permits exemption from its Part 61 regulation and allows onsite burial of waste under $ 20.302.

In this instance, however, it is clear that both conditions are met. The

. , waste itself has an extremely low radioactive content as well as low content of 7 .. '

,. ~ potentially hazardous chemical constituents and it will be securely confined. 'Ihe

, 7, ,.

trace constituents are contained in a bulky matrix of insoluble nontoxic water treatment chemicals and the entire matrix will be solidified before burial with

^ -

- ,: cement kiln dust. The resins themselves are nondegradable by either biological or chemical means and are nontoxic. The waste will be buried in a glacial

.O.'

' 3 1 none in pasang that tids is the asuetian that now prevails meaning the seeding pond where escase water r, x

• e , N; .,. , ,6 lc % ' "% , .-

'l by desten asulady oww6ows irmo the Eat nu is accepuble be:ause the wasu is nonhasanteus and seeme

, 4, , eenAnemara is nauher respdad nor ynmded. De bunal project simply adds to existing margina of safay by j: ', ,

. , 88'stly impamng the connnemara or waste, 298

)

_-_________u___-__.__.2

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deposit that does not readily transmit water. No water table exists in the glacial deposit, and physical separation between the waste cells and the underlying -

aquifer exists. "Ransfer of dissolved materials from the waste into the underlying .

i aquifer will be minimal. The aquifer itself has a low gradient and transmits water to Lake Ene only slowly. Any dissolved material that could clude all of the barriers and reach the lake by this pathway would be quickly diluted by take 4 ,]a J s.

'~

; water.

." j The finding of nonhazardous waste and its secure confinement together i are more than sufficient to support a conclusion that this project will not

. create a significant radiological or nonradiological hazard to life or the human

• ', environment. The project as described can be conducted within the dose and

.l effluent limits of 10 C.F.R. Part 20, and the projected radiation doses have

~ '

been maintained as low as reasonably achievable. 'Ihe chemical wastes do not

'. . create a significant concern under 10 C.F.R. Part 51 obligations for NRC to

]

consider alternatives to proposed actions or to prepare an environmental impxt

' statement. Because there will be no significant environmental impact, there is no obligation to prepare an environmental impact statement under 6102(C) of the National Environmental Policy Act (NEPA). 42 U.S.C. 64332(2)(C) 1982; 10 C.F.R. 55 51.20, 51.32. Neither is there a need to study alternatives to the proposed action under 9102(E) of NEPA. That section requires the study of alternatives where there are " unresolved conflicts concerning alternative uses of available resources." No such unresolved conflicts exist in this proposal. The i NRC has in fact considered the alternative of offsite disposal in a commen:ial burial site and has concluded that certain wastes should be exempt from j the general requirements cf 10 C.F.R. Part 61 when very small amounts of i radioactivity are contained in the waste. That is the situation that prevails here. )

I conclude that this project does not raise any issues concerning possible im- l

- pacts on federal or state endangered species because there will be no significant l environmental impacts on Navarre Marsh or Lake Erie either from construction j or operation of the project. l In consideration of the foregoing, the Presiding Officer concludes that the Licensee has carried its burden of proof on the contested issues and that the

' prior NRC approval to dispose of mixed water treatment waste and slightly radioactive ion-exchange resins by land burial on the Davis-Besse site should be and hereby is affirmed.

II. FINDINGS OF FACT j Uncontested Facts 1

.- . 1. The Davis-Besse plant is a pressurized water reactor (PWR). A PWR

' circulates water or steam in two principal systems, which are physically sepa-i 299 l l

l l

. _ - _ - _ _ _ ________ a

l rated: the primary system and the secondary system. The physical separation

_ between these systems provides a barrier for the control of the radioactive ma-terial. Water in the secondary system normally remains essentially nonradioac-tive. Licensee's Testimony on the Burial of Very Low Level Waste at Davis-

,  ; Besse ("Lic. Testimony"), ff. Tr. 31, at 11 12 (Briden).

._; 2. The Davis-Besse plant has its own water supply treatment facility. The water supply treatment facility purifies water from Lake Erie both for use in plant {

y{ systems, including the secondary system, and for personal use. In the treatment

, . 'l process, Lake Eric water is chlorinated and lime for softening and sodium j aluminate for clarification are added. Suspended solids, hardness, and other impurities precipitate out. The precipitate is removed, producing sludge, which is discharged to a settling basin. Id. at 10-11,95 (Briden). Sludge by definition is a suspension of solids in water. The sludge discharged from the water treatment is about 1.5% solids. After settlement, the sludge accumulated at the bottom of the basin is about 20% solids. 'IY. 618-20 (Bennett). See Lic. Testimony, 'Ibble 171 at 1.

3. The water in the secondary side of the plant is purified by demineral-ization in the Condensate Demineralized System where powdered ion-exchange {

resins remove impurities. Id. at 12-13 (Briden).

4. While the secondary system is separated from the radioactive primary system, primary-to-secondary-system leakage can occur through the steam gen-3 erator tubes, in March 1981, Davis.Besse experienced a steam generator tube l i

leak which caused contamination in the secondary side of the plant. The plant was shut down and the leak repaired. During the cleanup period, the secondary-  ;

side cleanup resins contained radioactive material that required offsite disposal as radioactive waste. Since then, very low levels of radioactive contaminants have continued to accumulate on the Condensate Demineralized resins. Much of this radioactive material is residual radioactivity introduced into the secondary system during the tube leak. Id. at 13-14 (Briden).

5. The volume of resins used in the Condensate Demineralized System is small and the resins are replaced weekly. Each batch of used secondary-side resin is dewatered, sampled, and analyzed for radioactive material prior to being discharged to the settling basin. Id. at 15 (Briden); Tr. 619 (Briden). If the resins satisfy predetermined radiological criteria, they are transferred as a slurry to the same settling basin that receives sludge from the water treatment facility. Lic. Testimony at 14 (Briden); Tr.156-57 (Briden). If the radionuclides concentrations are higher th9n neptaNe, the resins are t-?at:d as radioactive waste and processed for offsite disposal. Lic. Testimony at 15,72 (Briden).

6. The sludge and resins dat re di::hrg;d 10 bc 'actuing pond settle

, out immediately. Over time, this material accumulates in the pond. Tr.157-59 (Briden). This accumulation of resMs and sludge is the material to be disposed

. i of by land burial at the Davis-Besse site.

300 l

l 1

ll l

r

7. The proposed burial ground will be located in the south-central portion

• • of the Davis-Besse site, approximately 2000 feet south of the switchyard and

- approximately 1200 feet east of State Route 2. *Ihe location is contingent on Li-censee obtaining a Permit to Install (17I1) from the State of Ohio. Lic. Testimony

. '? .

- at 16 (Swim), Fig. 2-1. The design of the burial cells has been specified. Id. at

' ~

.  !, , i 18-22 (Swim), Fig. 2-2.

'I '"i 8. The burial ground is unlikely to be disturbed by any future construction J-

- . on the Davis-Besse site. The proposed burial site is a minimum of 100 feet from

',, J, any frequently occupied area. The site will be over 1000 feet from any water

'^; .,,

. ~, well (except Licensee's observation and monitoring wells), and will be located at least 200 feet from any stream or lake (including the drainage ditch to the

. '. . cast of the burial site). The burial ground will not be within a floodway.'Id. at 16-17 (Swim).

9. Licensee intends to transfer mixed sitadge and resins from the settling basin to burial cells six times over the life of the plant. Six lots of waste will be buried at the burial site, each in a separate burial cell. Id. at 18 (Swim).

10. The walls of the burial cells will be constructed to serve as dikes and will be rip-rapped. Each cell will have a 4-foot-thick liner. From bottom to top, the liner will be composed of a 2W-foot thick layer of compacted clay, a synthetic impervious membrane, a 1-foot layer of graded gravel for leachate collection, and a 6 inch layer of compacted clay. The mixed resins and sludge will be placed over this cell liner. Each cell will be capped with a 2 to 4-foot-thick compacted clay layer, a gravel filter layer above the compacted clay, and an uppermost layer of topsoil. Id. at 1819 (Swim);"Ir. 250 (Swim).

11. The inner base of a typical single cell is approximately 45 feet x 45 feet, and is about 3 feet below land surface. From the base, the inner sides of

. the cells slope upward and outward at a 3:1 grade to the top of the surrounding

'- dikes. The top of the cell (not including the cover) is approximately 98 feet j x 98 feet, and is about 5% feet above land surface. From the top of the cell, j the dikes slope downward and outward at 3:1 grade to land surface. From toe I of dike to toe of dike, each cell is 162 x 162 feet. Lic. Testimony at 20 (Swim).

12. Some cells will adjoin others. Where a new cell is constmeted adjoin-ing a preexisting cell, the adjoining cells will share the dike between them. ld. at 19 (Swim).

- 13. 'Ihe first three cells will be adjoining and will be constructed in the center of the burial site. The next two cells will adjoin each other and will be constructed to the west of the first three cells. These two cells will not be j connected to the first three because transmission lines pass between the two- and 6A Boodway is the channel of the water course and those poruons of the adjaming Sood plains that are required

.  ? ,,

to conwy the regional 100-year Sood, oluo Admin. Code $ 3745 27-01(F),

301 l

_ _ _ _ _ _ - _ _ _ _ _ J

three-cell units. The last cell will be constructed next to the northeast corner of the first three cells. Id.

14 Adjoining cells will be constmeted to share the dike between them. The

, ,' dimensions of the multicell units are therefore not simple multiples of the f dimensions of a single cell. The dimensions of the three-cell unit will bc

'~

] approximately 395 feet x 162 feet, and the dimensions of the two-cell unit will i

be approximately 278 feet x 162 feet. Id. at 2122 (Swim).

~

, -l 15. De Presiding Officer inquired whether the waste burial site is located ,

. within the bounds of the Navarre Marsh and asked for a description of the burial l

j site relative to the marsh. Licensee presented two witnesses who addressed this issue

Ms. Jennifer Scott Wasilk, the Environmental and Emergency Prepared-ness Manager for the Davis-Besse Nuclear Station, and Dr. Charles E. Herden-

- - i dorf, a Professor of Zoology, Geology, and Natural Resources at the Ohio State 1 University and Director for the Center for Lske Erie Area Reseamh. Mr. John H. Marshall, an Environmental Program Coordinator for the Ohio Department of Natural Resources, testified for the State. There was no dispute among the parties concerning the physical location of the burial site relative to the marsh.

16. Originally, the Navarre Marsh referred to the marshland within the Navarre tract. The Navarro tract was 524 acres that has been acquired by the U.S. Fish and Wildlife Service. This tract is within the site boundaries of the Davis-Besse site. Id. at 23 (Scott-Wasilk).

, 17. Under various leases and agreements with Toledo Edison, the U.S. Fish

, .: and Wildlife Service manages all the marshland in the Navarre tract. This j marshland, plus 135 acres north of the site, are now called the Navarre Marsh unit of the Ottawa National Wildlife Refuge. The proposed burial site will not he within this area. He closest approach of the dike around the cell nearest i

to the Navarre Marsh unit will be approximately 400 feet west of the Navarre Marsh unit Id. at 23-24 (Scott-Wasilk).

I 18. The burial site itself is not wetland under any definition.'Id. at 24-28 (Herdendorf). The State agreed that the burial site will be outside the wetland area and that wetland acreage will not be lost. Tr. 756 (Marshall).

19. There is a small unit of wetland between the burial site and the Navarre l

Marsh. No construction will be performed in this area. At the closest point, this unit is 25 feet from the dike around the last burial cell that might be constructed and about 100 feet from the next nearest cell. Lic. Testimony at 28 (Herdendorf):

~1Y. 579 (Swim). This parcel is not contiguous with the Navarre Marsh; it is separated from the Navarre Marsh by a drainage ditch and dike. Tr.175 (Scott-Wasilk). This parcel of marsh will revert to an upland-type area over the next year or so because of dike construction along the Toussaint River. Tr. 578

. 4 (Herdendorf, Scott-Wasilk).

i 302 l

l

Contested Issues t 20. The Presiding Officer's fourth question asked, "What is the observed

- flooding frequency at the waste burial site?" his question was addressed by Dr. Herdendorf for the Licensee and by Mr. Donald Guy for the State.

l- ' * - -

21. The static water levels in the western basin of 1.ake Erie are affected L Y. ! ; by long-term and annual cyclic variations in the mean monthly water level,

'J and short-period variations in the daily level. Lic. Testimony at 29 (Herden-L'

", .J

- a dorf). Water-level records for Lake Erie have been gathered since 1860. Current lake levels are measured by the National Oceanic and Atmospheric Administra-

Q* '

- - tion at a number of gauges positioned around the lake. Id. at 30 (Herdendorf).

22. The Davis-Besse site is located approximately midway between two

' lake-level gauges; one is at Toledo (at the far western end of the lake) and the

- - other at Marblehead on the east end. Lake levels are not uniform across the lake, but exhibit lengthwise and transverse variations during storms. He maximum lake levels are observed at the ends of the lake, while the center of the lake is a wind tide node, a point in the lake were no wind tide change in lake level occurs. The Davis-Besse site is located about 80% of the way from the wind tide node to Toledo, and wind tide variations (storm surges) are therefore about 80% of those recorded at Toledo Id. at 30-31 (Herdendorf).

23. 'Ihe general area around the burial site has been observed flooded, but specific hydrological records of such events have not been maintained. The frequency of flooding, however, can be estimated from water-level records for Toledo. It is estimated that over the last 50 years there have been twenty-five storms which potentially could have flooded the burial site. The total duration of these potential flooding events was probably less than the equiralent of 12

. days, or about 2.4 days every 10 years. Id. at 3133 (Herdendorf).'

- 24. Counsel for the State observed that most of the potential flooding events occurred over the last 15 years and suggested during cross-examination

~

- of Licensee's witness that only this period should be considered in determining flooding frequency. 'IY. 223-24. Such an approach would be inappropriate because the increase in frequency over the last 15 years reflects abnormally

- high water levels, which would likely return to normal in the future. Tr. 224 25, 236-37 (Herdendorf)..The State agreed that a spectral analysis of lake levels suggests that the high current lake level will not persist indefinitely although the level may rise still further in the next several years before subsiding. Direct Testimony of Donald E. Guy, Jr. (" Guy"), ff. Tr. 638, at 2. ne full 50-year data base utilized by Licensee provides a reasonable basis for estimating future 7'!he analysis that was pedormed addressed take noodmg. bential nver Sandmg is less stamftcars in earnparison and there is no evidence of nver nooding at the bunal site, Tr. 21718. ss9 Gierdedarf).

303

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, flood frequency because high cmTent lake levels will eventually return to normal j

,, rather than continuing to increase indefinitely. l

25. The burial site area will likely be subject to occasional floods in the )

future. The cells themselves will not be flooded because they will be surrounded l e by dikes constructed to an elevation that is 3.7 feet above the estimated flood 1

~

1 level of the highest storm on record, which occurred on April 8,1974. The'

, , , greatest storm surge at Locust Point near Davis-Besse was approximately 4.2

]

+

, feet above still-water level. If this maximum historical surge took place at the l record high still-water levels observed in June 1986, the water level at the burial C .

site would be nearly 2 feet below the top of the dike.8 Lic. Testimony at 36-37

~'

, . , (Herdendorf).

q 26. A higher setup (or surge) of about 7 to 8 feet has occurred at the 4 l eastern end of Lake Erie R. 674 (Guy). Surges of this magnitude have not been l observed at the western end of the lake. Id.; 'IY. 788-89 (Guy). The eastern end l

.  : of the lake is funnel-shaped and focuses water coming from the west into a small area, thereby increasing the surge height relative to surges in the west. Tr. 789 (Guy). There is no basis to predict a surge of 7-8 feet at the western end of

' Lake Erie.' Such a surge far exceeds the highest surge on record and is very unlikely. Tr. 222 (Herdendorf).

27. A storm surge of 9.3 feet was calculated during Davis Besse licens-ing as the probable maximum meteoroicgical event. Tr. 886 (Guy); R. 895 1 (Guy). This event is a design-basis event for reactor licensing - an event with a i

near-zero probability of being exceeded. 'IY. 934,936-37 (Scott-Wasilk); Tr. 938

. (Hendron). The event postulates winds of 70 miles per hour (mph) sustained for 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> and gusts of 100 mph. Tr. 934 (Scott-Wasilk). Such conditions far

exceed those that have been actually observed. Id. This event is a worst con-

. , j ceivable event to which no probability could be assigned by the State. Tr. 895-

. i 96 (Guy). The maximum meteorological event calculated for reactor licensing j therefore has no probative value to a prediction of flooding that could reason-ably be expected at the burial site. The U.S. Corps of Engineers predicts that the maximum 500-year flood (i.e., a flood expected to occur ortly once every

, , 500 years) at Locust Point is about 3 feet below the elevation of the dikes that will surround the burial site. Lic. Testimony at 36-37 (Herdendorf); Guy at 2.  ;

,, 28. The Presiding Of5cer next asked, "What soil crosion from storms has been actually observed at or near the disposal site?" This issue was addressed

, by Dr. Herdendorf and Mr. Swim for Licensee, and by Mr. Guy for the State.

8

• ' Under chao regulauana, even a hazardous waste facihty may be located in a 100 year Sood plam pnwided

• ~

the facdtty is designed, constructed, operated, and maintained to prevent washout of the waste by a 104 year

" ~

Sood. ohio Admin. Code i3745-5418(B). see Tr. 593 Olandron).

. ~, ' Locust Point is not at the very end of the lake. and surges at Locust Punt are generally about 20% lower than those that occur at the western end at Toledo. tic. Testunemy at 343101erdendorf).

f I

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29. 'Ihe land surface at the site is well vegetated and there is no evidence

- of surficial erosion. Lic. Testimony at 39 (Herdendorf); Tr. 242-44 (Herden-dorf). No storm erosion would be expected to occur at the burial site because erosion generally does not occur in the absence of wave attack. Lic. Testimony i . ,

at 38 (Herdendorf); Guy at 4; Tr. 751 (Guy). The burial site is inland and not

- subject to wave attack because the outer marsh dikes absorb the brunt of storm

f waves coming from the lake.18 Wave heights near the burial site would be lim-

ited by the physical properties of waves. The still water depth near the burial site

.' j

~' would be small in a flooding situation and the wave height would also be small i

because large waves cannot develop in shallow water. Lic. Testimony at 37-38 i ,, ,

• * * * , (Herdendorf). There therefore exists no basis for expecting significant erosion  ;

a of the surface soils from storms. Floodwater will be primarily standing water at the site. Tr. 751 (Guy). See also Tr. 599 (Herdendorf).

30. The waste burial cells will be surrounded and protected by dikes. To prevent erosion of the dikes, the slopes of the dikes will be rip-rapped. There

' will be either a small graded stone layer or filter cloth under the rip-rap. The U.S. Soil Conservation Service" has recommended seeding the burial stmeture with a mixture of gmss and clover, and is preparing a protective vegetation

- design plan which Licensee intends to follow. Lic. Testimony at 40-41 (Swim, Herdendorf).

31. Dikes elsewhere that have been destroyed in storms were primar-ily unarmored, earthen dikes that were subject to wave attacks. Tr. 785-87

- (Guy). There is no evidence of catastrophic failures of armored dikes in slack water areas. Tr. 800 (Guy).

32. The Presiding Of6cer inquired: "What is the direction of ground

^

water flow from the burial site relating to Lake Erie, Navarre Marsh, and the

' '.' Toussaint River?" This issue was addressed by Mr. David M. Hendron for Licensee, and by Mr. Richard R. Pavey and John Voytek for the State.

'- 33. Licensee's witness, Mr. Hendron, is a geotechnical engineer. He holds

' a graduate degree, has 20 years of experience, and has been involved in numerous waste management projects. Lic. Testimony at 6 (Hendron). He is a principal and vice president of Woodward-Clyde Consultants, a firm that specializes in geotechnical engineering. Id. at 2 (Hendron). Mr. Hendron and his firm have been directly involved in geological and hydrological work at Davis-Besse since 1968, and Woodward-Clyde geologists, hydrologists, and

! J' '

engineers have spent hundreds of hours studying the Davis-Besse site. Tr. 304

• 908 (Hendron). The Presiding Officer finds that Mr. Hendron is qualified by

• 's . . .

• 101he outer marsh dikes are armored, except where a strong bemer beach crista.1.icensee is ccznmitted to

-F, ,,

mamtairung the dikes and barrier beach. Tr. 587-88 QIerdendorf. scott Wasilk).

,  :,. u The legisladve mission of the U.s. Soil Censervada service is to control crasion and prtmde techmcal

' assistance m the subf ect Tr. 599 OterdendorO.

305

l l

1 both education and site-specific experience to testify on matters pertaining to

! ' the geology and hydrology of the Davis-Besse situ.

- 3

~

34. Testimony for the State was given by Mr. Richard Pavey who is a 1 geologist and by Mr. John Voytek who is a hydrogeologist. The Presiding

~ ' Officer accepts that the State's witnesses are qualified experts in the disciplines of geology and hydrology; however, they had little site-specific experience. See l

, Resume of J. Voytek, ff. Tr. 638; Resume of R. Pavey, fr. R. 638. Tr. 805 1

/ . ,,- (Pavey). Mr. Pavey visited the site once for a short time. Tr. 793,801 (Pavey). He

a has not observed the excavations at the site or examined any of the cores that l

were taken. Tr. 801-02 (Pavey). He has examined the logs of about a half dozen borings. Tr. SN. He has not read the FSAR or updated SAR reports on site geology. Tr. 8N (Pavey). Mr. Voytek also had no data specific to the Davis-Besse site on which to base his conclusions. Tr. 845 (Voytek).

' 35. The geologic and hydrologic characteristics of the glacial deposits and

, bedrock were determined through investigations and studies of the Davis Besse site for the siting and licensing of Units 1,2, and 3. Hundreds of observations including borings, test pits, probes, pump tests, and other direct fic!d tests were .

made throughout the site area, including the area being considered for the waste disposal site. Lic. Testimony at 45 (Hendron).

36. 'Ihe large body of data from the scils, geological, and hydrological work performed at the Davis-Besse site since 1968 were reanalyzed by Li-censee's consultant in conjunction with the waste burial project. Tr. 304-06 (Hendron). While these data were originally obtained in conjunction with con-i struction of the Davis-Besse station, the data remain valid and are appropriate "or evaluating the waste burial site. Tr. 607-08 (Hendron).

37. Recent investigations included five borings through the soil deposits,

! physical property testing of drive samples taken from the boreholes, and l laboratory permeability testing of tube samples taken from the boreholes at

, the burial site. Lic. Testimony at 45-46 (Hendron); Tr. 291 (Hendron). An extensive excavation near the burial site permitted direct visual observations of the characteristics of the subsurface deposits. TY. 310,607 (Hendron). .

38. The burial site is underlain by two primary glacial deposits. These deposits are together about 15 feet thick in the area of the burial site, and they overlie a relatively flat-lying dolomite bedrock formation. Lic. Testimony at 42 (Hendron).

~ 39. The upper glacial deposit is a glaciolacustrine clay. The deposit consists of a relatively homogeneous plastic silty clay that contains minor amounts of silts and fine sands within the clay matrix. The topmost foot contains organic material and is referred to as topsoil. The glaciolacustrine deposit is only

, j partially saturated since the voids between the individual clay particles are only 3....

, partially filled with water. Id. at 42-43 (Hendron).

306 f

I

r l ,

40. The lower glacial deposit consists of glacial till. The deposit consists l of a relatively homogeneous mixture of moderately plastic clay, silt, sands, and

- gravels. The overall matrix of the deposit is controlled by the high clay-silt cont.mt. Within the area being considered for the waste disposal site, the glacial

.. r N '

. i till deposit is also only partially saturated. Id. at 43 (Hendron).

41. The upper 15 to 20 feet of the underlying bedrock formation is a relatively pure massive dolomite. His upper layer is underlain to depths of several tens of feet by a laminated dolomite formation that contains lenses of

. . g.

gypsum and anhydrite in addition to the dolomite. Id.

." l

> 42. There is no direct evidence that there could be as many as six distinct till deposits at the site as postulated by the State. Direct Testimony

- of Richard R. Pavey ("Pavey"), ff. Tr. 638, at 2. That assertion was based on general geological knowledge of glacial tills in northern Ohio; however, the nearest site to Davis Besse that had been examined by State geologists did not s

' contain six distinct till deposits. 'IY. 810-11 (Pavey). The Presiding Officer relies on site-specific observation for conc!,uding that only one till unit exists and rejects the State suggestion based on generic evidence that multiple till deposits q

exist. Tr. 90810 (Hendron).

43. Ground water flow in the proposed burial area occurs only in the l I

bedrock formation and not in the glacial till deposit. The dolomite formation is fully saturated and is relatively permeable because it has a system of joints, fissures, and vugs which convey water. Lic. Testimony at 44 (Hendron). f

^; i

44. The gradient of ground water in the bedrock is 1 to 2 feet per mile. As a result, the rate of flow of ground water through the bedrock equifer is small and j difficult to measure, and the direction of ground water flow beneath the burial site has not been measured directly. We bedrock outcrops in the lake several

• miles offshore and to a smaller extent in the Toussaint River where bedrock is probably intermittently exposed by crosion of the overlying soil deposits by the river. Although not supported by direct observation, it is reasonable to infer {

I

- from the gradients and outcrops that flow occurs beneath the burial site in the bedmck toward Lake Erie and that slow discharge into the lake occurs at the outcrop. Id. at 46-47 (Hendron). Flow toward Lake Erie occurs at about 10 feet j per year in the bedrock. If contaminants were detected in this ground water, it could be intercepted and cleaned up before it reaches the lake. Tr. 287 89 ,

l (Hendron).

45. Ground water probably flows through the bedrock beneath the buria!

• . site toward the Navarre Marsh. Glacial clay deposits separate the marsh frnm (

the bedrock and prevent water in the bedrock from reaching the marsh. Id. at 48 (Hendron).

46. The glacial soils am highly impermeable (i.e., have a low hydraulic

' conductivity). Id. at 44 (Hendron). The permeability of the glaciolacustrine deposit is measured at less than 104 centimeters per sect nd (cm/sec) and the 307

l

)

permeability of the glacial tillis measured at less than 104 cm/sec.ld. at 49. The glaciolacustrine deposit and the till deposit contain no systematic open joints, fissures, sand strata, or other nonuniforinities that could serve as ground water flowpaths. There is no measurable ground water flow that occun horizontally

} or vertically through the soil deposits that overlie the bedrock. Id. at 44, 46 (Hendron).

, 47, The Presiding Officer does not accept the State hypothesis that till units at the site contain coarse sand and gravel lenses that are highly permeable

.(

and that can serve as ground water flow paths. While the proposition might be generally true for glacial tills of northern Ohio, the State witnesses lacked site specific information on this matter which the licensee possessed. On cross-examination the State acknowledged that on a particular site there may be no sand or gravel lenses in a till deposit (Tr. 813, 818 (Pavey)); cobble might not exist in glaciolacustrine deposits (Tr. 819 (Pavey)) and that permeable layers do not occur in all glaciolacustrine deposits. TY. 813, 820-21 (Pavey).

48. The State suggested that lineaments marked on State's aerial photo-graphic Exhibits E and F might indicate areas where collapse of the bedrock has fractured the till above, resulting in sa*urated strips. The State witness thought he could discern a lineament in the burial site area. The diagnosis, however, was inconclusive and would require further site investigation to confirm or reject the hypothesis. Tr. 694 96 (Pavey).

49. The Presiding Officer accepts the data generated from site observa-tion. Observations at the burial site show no evidence of more than one till deposit and no evidence of lake or river sediments separating tills. Tr. 90910 (Hendron). The till is homogeneous and does not have permeable paths. Tr. 912 (Hendron). Sand strata are very infrequent and do not form systematic flow pathways. TY. 310, 314-15 (Hendron). Fissures or joints in the till are closely shut and do not constitute ground water pathways. 'IY. 316, 336, 610-13 (Hen-dron). Open joints have not been observed. Tr. 910-11 (Hendron).

50. The glaciolacustrine deposit is fine-grained, containing silt and clay-sized particles, not coarse material such as cobbles. Interconnected layers in the glaciolacustrine deposit have not been found. Sand lenses have been observed at the Davis-Besse site, but they are thin, infrequent, are not interconnected, and do not provide ground water pathways. Fissures in the glaciolacustrine deposit have been found to be very impermeable. Tr. 316, 336,612,618,913-14 (Hendron).

51. Borings of soil on site were taken by an ASTM (American Society of Testing Materials) standard method that produces an intact sample suitable j for determining the stratigraphic characteristics of the material tested. TY. 294- '

97 (Hendron). The outer surface of such a sample is cut away to expose a fresh, unsmeared surface that permits accurate observations of strata. Tr. 921 (Hendron). Shelby tube samples (another standard method) were taken for

, permeability testing. Lic. Testimony at 46 (Hendron); Tr. 604-05 (Hendron).

308

52. Under standard practice, the presence of a sand or gravel lens would explicitly be noted in the boring logs if any were found. None were. 'IY. 296-98, 927 (Hendron).

' I 53. One sand lens about 2 to 3 centimeters thick and 5 to 10 feet long

- was observed in a 1000-foot-long excavation near the site. Information from the

• excavation.is consistent with that from borings and both show that sand lenses

- are discontinuous and very infrequent in glacial deposits at Davis-Besse. 'IY. 309-

,. .,- , 10 (Hendron).

/ i 54. Data from continuously sampled holes, the past and present obser-

. 4 vations of large cuts through the glacial deposits, and the high percentage of

.! sampling at the burial site provide sufficient data to determine the absence of

. ,  ! interconnected sand lenses or other nonuniformities in deposits at the burial

' site. Tr. 603-04 (Hendron). Angled borings as advocated by the State to detect s .

verticaljoints were unnecessary because characteristics ofjoints were determined

. by direct observation in excavations. 'IY,612 (Hendron).

• - < 55. Rirther direct evidence of impermeability was obtained duririg site

. construction when the bedrock aquifer was dewatered. 'Ihe level of water in ponds in the glacial deposits remained constant, although the radius of influence of the dewatering operation extended to the bedrock aquifer below the ponds. The ponds were several tens of acres in size. Dewatering did not cause reduction of water level in these ponds. This independently demonstrates the absence of open joints and fractures through the glacial deposits. TY. 311-14 (Hendron).

56. The State thought that perhaps the water levels in the ponds were unaffected because the dra;gdown was shallow (i.e., a few inches of draw-down). 'IY. 724 25 (Voytek).The witness indicated that if there had been a signif-icant drawdown (10 feet to tens of feet), he would change his opinion. TY. 884 85 a

(Voytek). The drawdown of the bedrock aquifer during dewatering was about 20 feet at a distance of 2000 feet, and about 1012 feet at about 3000 feet. Tr. 924 (Hendron). The ponds were within these distances. 'IY. 312 (Hendron). The lev-els of drawdown were not only theoretically calculated but were confirmed by l field measurements. Tr. 923-24 (Hendmn). If roots were significant ground water pathways through the glacial deposits, fluctuations in the water levels in ponds during dewatering of the bedrock aquifer would have been found. Such fluctu-ations were not observed. No ground water has been observed coming up into the glacial till through root channels. Tr. 311-14, 317, 611-13 (Hendron).

57. The State thought that smearing of the excavated faces of glacial

' deposits and evaporation might have disguised ground water seeping out of the i glacial deposits. Tr. 69192,852-53 (Pavey, Voytek). Such smearing would be inconsequential to ground water seepage over a long period of time, and further 9 - the smeared surface in excavations was typically scraped off by the geologists so

~

4 .

- that the underlying material could be examined. Tr. 310,920-21 (Hendron). The 309 i

i

)

1 State admitted that less evaporation occurs in the winter, and that ice lenses would form and be visible in glacial deposits exposed by excavation if thers were ground water within cracks in the deposits. 'It 828 29 (Pavey) Ground water seepage out of excavated glacial deposits has not occurred at any season

, ' of the year, nor have ice lenses been observed. Tr. 909-10 (Hendron).

i

. 58. Water in the bedrock aquifer contains high levels of hydrogen sulfide, which indicates by another line of evidence that the bedrock aquifer is not being

' , _ recharged with fresh water. Gypsum has been found at the base of the till unit, I which is inconsistent with downward ground water flow through the till. 'It 915-

} 16 (Hendron).

, 59. Based on multiple lines of independent consistent evidence, the Pre-

, siding Officer finds that there is no measurable ground water flow through the

! glacial deposits at the burial site.

60. I next inquired: "What is the depth to bedrock of unconsolidated glacial deposits at the burial site?" Mr. Hendron addressed this issue, and his testimony was unchallenged.

61. In the arca of the burial site, the glaciolacustrine deposit is 5 to 8 feet thick. The thickness of the glacial till deposit in the area being considered for the burial site ranges from 9 to 12 feet. Lic. Testimony at 50 (Hendron). This factual response was undisputed.

62. My next question asked, "What is the average depth and upper and lower range of the water table at the disposal site?" This issue was addressed

, by Mr. Hendron, and to some extent by Mr. Pavey and Mr. Voytek. i j 63. The Presiding Officer finds neceptable the definition of water table as the point of contact between the saturcJed and unsaturated geologic zones !n the subsurface. This definition is consistent with that in Ohio's Solid Waste Disposal Regulations, Ohio Admin. Code 9 3745-27-Ol(AA). Id. at 52 (Hendron).

64. Both the glaciolacustrine and glacial till deposits beneath the burial site are unsaturated. The bedrock deposit is saturated, and water in the bedrock

, formation is confined by the till deposit. The water table within the area being considered for the disposal site is the contact point between the glacial soil deposits and the top of the weathered bedrock zone. Id.

65. The distance between the bottom of the proposed waste cells and the water table below is 7 feet. Id. at 53 (Hendron).

66. Water in the confined aquifer is under artesian pressure that would

. ' ' rise to a level about 2h feet below the soil surface if not confined. Tr. 290 (Hendron). The piezometric surface of the confined bedrock aquifer is not the same as " water level" in the glacial deposits because the soil deposits are so tight that upward flow does not occur. Tr. 335-36 (Hendron). No piezometric surface rises into the glacial deposits from the underlying bedrock aquifer. I conclude that waste buried in the glacial till will not be subject to contact with 2- water by upward movement from the bedrock.

310

e .

' 67. Water that collects in ponds in the topsoil during wet seasons is not

' a water table as suggested by the State. Voytek at 7.n Water that accumulates

' ' above an impermeable, unsaturated zone is referred to as a perched water table. It is not a true water table. Tr. 615-16 (Hendron).

68. The Presiding Officer's ninth question asked,"What species of plant

" or animal have been actually observed on the Davis-Besse site? What critical j

- habitats for endangered species exist on the Davis-Besse site?" Dr. William

' B. Jackson, Dr. Jeffrey M. Reutter, and Dr. John E. Till testified for Licensee on this issue. Mr. John Marshall testified for the State.. The Presiding Of5cer has reviewed the qualifications of these witnesses and accepts that they are qualified

- to testify as experts in this proceeding.

,.7

69. From 1972 through 1980, Dr. Jackson, Dr. Herdendorf, and Dr. Reutter

- conducted environmental studies of terrestrial and aquatic plants and animals at

'l the Davis Besse site. Dr. Jackson and his associates studied terrestrial animal

• ' and plant communities at the site. Lic. Testimony at 54 (Jackson). Dr. Jackson

' himself visited the site many times. Tr. 339 (Jackson).

70. Dr. Reuner and Dr. Herdendorf conducted aquatic studies over the same 9 year period. De aquatic studies included a sampling program of fish and benthic organisms in I.ake Erie near the site. A 3-year sampling program was conducted in the Navarre Marsh. Lic. Testimony at 54-55 (Reutter).

71. Dr. Tillis a health physicist who is qualified to testify on the issue of I whether the low levels of radioactivity in the waste would have an impact on

, biota.

! 72. De State's witness, Mr. Marshall, holds degrees in fisheries manage-ment and botany, with emphasis on wetland floristics. The Presiding Officer has reviewed Mr. Marshall's qua'ifications and accepts that he is qualified to testify as an expert in this proceeding. State Testimony, ff. 'It 638.

73. No plants or animals on the federal endangered species list have been observed on the Davis-Besse site. Lic. Testimony at 55. No aquatic species on the federal endangered species list have been found in this part of Lake Erie. No aquatic species on the federal or state lists were found in the Navarre Marsh. Id. at 55-56, 60 (Jackson, Reutter). -

74. In Lake Erie, four aquatic species on the state's endangered species list have been found: silver chub, silver lamprey, Great Lakes muskellunge, and lake sturgeon. One muskellunge and one sturgeon were found in 11 years of sampling. Id. at 56 (Reutter).

75. nree benthic organisms listed by the State as " threatened" have also been found in Lake Erie near the plant site, nese are the deer toe clam, the knob shell clam, and the castern sand shell clam. Id.

U The topson is also afened to as Toledo saiy clay. see Tr. s94,925 Glendmni That water ponds in the inesoa

• indicates that the glacial deposits below are very tight and pavent ground water Sow downward.Tr. 928 Glendron).

311

, 76. The levels of rawoactivity in the waste would have no discernible

, impact on aquatic species even if all the waste were deposited in the lake at

, once because the radionuclides concentrations would be well below the maximum permissible concentrations for water in Part 20 of the NRC's regulations.12 At these levels, the impact on aquatic species would be negligible. Id. at 57 (Till). i

\ , 77. He waste proposed for burial contains some impurities including l'

' - heavy metals that came originally from the lake water. Id. at 94, 95, hble

. . . ,f 17-1 (Bennett); R 655-56 (Marshall).

78. The chemicals in the sludge should have no impact on aquatic species.

,. Lic. Testimony at 57 (Reutter). Analysis of the sludge shows it to be below EPA

, ,  ; extraction procedure (EP) toxicity limits, and any leachate would be below EPA

.  : water quality criteria, which are designed to protect aquatic life. 'n. 602-03

.I

{ (Reutter). Rtrthermore, the proposed waste disposal methods and the hydrogeo-i logic characteristics of the site make it very unlikely that any , waste or leachate

, would reach the lake. 'R. 602-03 (Reutter); Tr. 288-89, 914 (Hendron).

'i 79. The Navarre Marsh has not been designated as critical habitat within l the meaning of the Endangered Species Act for the bald eagle or for any other species of plants or animals. Lic. Testimony at 61-62 (Jackson); Tr. 654-55,745 (Marshall).

80. No endangered species of bird has been found to inhabit the Davis-

Besse site (including the Navarre Marsh), although occasional visitation is pos-

.  ; sible. The construction of the burial site will not remove or disturb potential

! habitat for species that have been observed in the vicinity on occasion. Lic. Tes-

! timony at 58 59 (Jackson); Tr. 765 (Jackson). Use of the burial site will not affect endangered species and will not result in loss of wetland. Tr. 756-57

, (Marshall).

l 81. Operation of the burial site will not impact bird species because the disposal method will prevent the waste from entering the food chain and because the radionuclides and heavy metal concentrations are too low to present any significant hazard to plant or animal even if the waste mobilized. Lic. Testimony at 59-60 (Jackson, Till). Id. at 96-98 (Bennett); R 602-03 (Reutter).

82. The Presiding Officer's tenth question asked, "What will be the total radiological inventory of the burial site after 30 years of operation under expected levels of resin contamination? Mr. J. Steward Bland, a health physicist, testified on behalf of Licensee. Mr. Bland holds a bachelor of science degree in physics, a master of science degree in nuclear science, and has worked as a health physicist for a dozen years. Lic. Testimony at 1, 7 (Bland). No other party presented testimony on question 10. Mr. Bland's testimony was uncontradicted."

33 10 C.F.R. Pan 20. Appenda B, Table U. col. 2.

-

• M

, David oithn. MD. presented tesumany en the general hszards of radistic, on behsir of sosrtJD eT. Tr. 439 t- ,

(Gitlin)). I gave no weight to this testimony because it contained no fsets that would assist me in resolving the issues in this cass See Tr. 440 53 (oitlin).

312

l i

l 4

83. De total expected activity in the burial site at termination of the Davis- )

i

- Besse operating license (in 2011) will be 0.013 curie. This activity is essentially all cesium-137. Lic. Testimony at 63-64; Table 10-3 (Bland). *

84. Question 11 asked, "What is the estimated dose to an individual standing on covered basin dredgings after 30 years of operation under expected c,

• ' ' < levels of resin contamination?" This issue was addressed by Mr. Bland on behalf

,',, y . 5 of Licensee. No other party presented testimony on this issue, and Mr. Bland's

.,s

'~

a,

' '.j

-, testimony was uncontradicted.

85. The dose an individual would receive if he stcod directly on top of

'.<I'[  :' ,,

the last constructed burial cell at the expiration of the Davis-Besse operating

. . 4

~: license 24 hr/ day for an entire year is estimated to be 0.007 millirem. If the

! individual stood on top of earlier constructed cells, the dose would be less, since the inventory of those cells would have decayed more. Id. at 67 (Bland).

86. Counsel for TCSB inquired whether the 0.007 mrem per year dose

'i calculated by Mr. Bland for continuous exposure for 1 year was consistent with

' the 0.7 millitem hourly dose calculated by the NRC Staff in its environmental assessment. There is no discrepancy because the NRC Staff's dose calculation l

was for an individual standing on uncovered basin dredgings, whereas the issue designated for hearing by the Presiding Officer asked for the dose an individual would receive standing on a covered cell. The cover reduces exposure and dose. Tr. 4(M-05 (Bland).

- ' 87. De Presiding Officer's twelfth question asked, "What criteria will be used to decide whether resins will be buried on site or transported to a licensed

' burial site in the event that resins become contaminated at higher-than-expected levels (from steam generator tube leaks or ruptures, for example)?" This issue (

was addressed by Mr. Bland and Mr. David Briden, the Chemistry and Health ';

Physics Superintendent for the Davis Besse Nuclear Station. Their testimony

' was uncontrad!cted.

- 88. Licensee has set limits on radionuclides concentrations in resin batches

' ' discharged to the settling basin. These limits were based on an evaluation of fea-sible release scenarios and environmental transport and exposure pathways. De 1 concentration limits were chosen so that, under the feasible release scenarios {

^ '

,' and environmental transport and exposure pathways evaluated, the dose to any l member of the public would be negligible (less than 1 millirem). Lic. Testimony j l

at 72 (Bland).

89. Each batch of spent resin is analyzed before it can be discharged to the h l i .

settling basin. If radionuclides concentrations exceed t e es:ablished limits, the spent resins are not discharged to the basin. but are instead trehted as radioactive j waste and processed for offsite disposal. The maximum concen: rations z!! owed j s ,, ,

in resin batches to be discharged to the settling basin apply to the resin batches J- ' i l

< before they are mixed with the water treatment sludge. Id. at 71-72 (Bland, ]

I f' ' , ,

j Briden).

l 313 I

l i

7-

. e l

90. The Presiding OfScer's thirteenth question asked, "What is the esti-

. mated upper limit of radionuclides inventory that could exist after 30 years under the above criteria?" Mr. Bland addressed this issue on behalf of Licensee. His

, testimony was not contradicted.

91, ne maximum activity that could exist in the burial ground at the termination of the Davis-Besse operating license is 0.036 curie. This activity

, is almost entirely attributable to Cs-137. This value is based on the maximum

' !j activities that would result if all resin discharges contained the limiting (i.e.,

maximum allowab!c) radionuclides concentrations. Id. at 73 (Bland).

' 92. The Presiding Officer's fourteenth question asked, "What is the esti-l<' .

! mated upper limit of dose to the whole body for an individual standing on the

• b burial site that could exist after 30 years under the above criteria?" Mr. Bland re-sponded to this question on behalf of Licensee. In addition, Mr. Russell Bimber provided testimony on behalf of SOS /CLO. Mr. Bimber's testimony, however, consisted of questions and unsupported assertions. Testimony of R.M. Bimber, ff. 'IY. 459. Mr. Bimber acknowledged that he is not a health physicist. 'IY,468 (Bimber).

93. ne maximum whole-boy dose due to direct exposure that an indi-vidual would receive if, after expiration of the Davis-Besse operating license, he stood directly on top of the burial site 24 hr/ day,365 days /yr, would be 0.02 mrem /yr. Lic. Testimony at 75-76 (Bland).

94. The Presiding Officer's fifteenth question asked, "Why has Sr-90 not been included in Licensee's assessments?" Mr. Bland responded to this question l

, on behalf of Licensee, and his testimony was unchallenged. i

95. Strontium-90 was considered in the ingestion and inhalation dose cal-culations in Licensee's testimony. De radioactive decay of Sr-90 is not accom-panied by any gamma radiation or x-rays, and therefore does not contribute to the direct exposure doses. Lic. Testimony at 77 (Bland).

96. Sr-90 was not included in Licensee's previous assessments because

- of its negligible contribution to both the total activity and the doses. Sr-90 comprises only 0.04% (0.0004) of the total activity to be buried. Its abundance

. and dose contribution are negligible compared with that of Cs-137. Id. at 77-78 (Bland).

97. Question sixteen asked, "What would be the total estimated whole-body dose equivalent for an individual through the food ingestion pathway that could result from the final 30-year inventory of radionuclides including Sr-907 Provide estimates for expected levels and upper limits of radionuclides inventory after 30 years." Mr. Bland responded to this question on behalf of Licensee. No .

l

, other parties submitted testimony on the is. sue.

' 98. De total estimated whole-body dose rate for the food ingestion path-way would be 0.31 mrem /yr, his dose was calculated using the environmen-tal transpon model of U.S. Nuclear Regulatory Commission Regulatory Ouide 314 l

l

l 1.109 coupled with effective total-body dose conversion factors derived from Publication 30 of the International Commission on Radiological Protection. For

. the analysis, it was assumed that an individual grew all his fresh vegetables in j 5

' ~

soil contaminated with waste from the last burial cell. The soil-to-plant transfer factors specified in NRC Regulatory Guide 1.109 were used. Lic. Testimony at

' ~

i 79-80 (Bland).

' i

99. He dose attributable to the ingestion of geese that might graze on d) t the burial site was also evaluated. It was postulated that an individual would

'(P

.}',.

- , l- consume 14 kilograms (30 pounds) of goose flesh per year. De total whole-body dose equivalent from this scenario is 0.025 millitem. Id. at 80-81 (Bland).

1 t / -

j! 100. Finally, the whole-body dose to an individual who drank contaminated i

lake water and consumed fish from the lake was evaluated. Ibr this analysis, it

was postulated that some catastrophic mechanism transferred the entire burial site inventory to the lake at one time and that all the sludge dissolved. An

. individual consumption rate of 21 kg/yr of fish and 730 liters /yr of water was assumed. The resultant total-body dose (assuming expected levels of resin contamination) would be 0.1 millirem. This dose would be received only in the first year after the postulated release. Doses in subsequent years would be orders of magnitude smaller because of waste dissipation. Id. at 81-82 (Bland).

101. An individual could not receive the total-body dose equivalent for vegetable and fowl consumption and the total-body dose due to ingestion of fish i and drinking water because both scenarios could not occur simultaneously. Either

! the waste remains in the burial ground, in which case the dose due to vegetable

^!' ingestion applies, or the waste is released to the lake, in which case the dose due to ingestion of fish and water applies. Id. at 82 (Bland).

102. If radioactivity in the waste is at the maximum possible level, the j

' ' I maximum total-body dose equivalent for food ingestion (vegetables) would be l O.85 mrem /yr. The maximum total-body dose equivalent due to ingestion of 3

goose flesh would be 0.07 mrem /yr. The alternative maximum total-body dose

-  ! due to ingestion of fish and drinking water would be 0.3 millirem. De 03-

- millirem total-body dose due to ingestion of fish and drinking water would be l received only in the first year and due to dissipation would not recur. Id. at 83 l I

(Bland).

103. Dr. John Till, whose qualifications have previously been accepted, con.

' ducted a peer review of Mr. Bland's analysis. Dr. Till confirmed that Mr. Bland i had used well accepted methodologies, and that Mr. Bland's assumptions were generally conservative (i.e., would tend to overestimate actual doses). Id. at 84-85 (Till). Dr. Till's own independent calculations agreed with those of

,- Mr. Bland. Id. at 84 (Till).

IM. Dr. Roger E. Linnemann testified to the significance of the doses calcu-

- cc .

• 2 1, L. .i'., .

. g. , . . '

' ,i late by Mr. Bland. Dr. Linnemann is Vice Chairman and Chief Medical OfScer

~ '

of Radiation Management Corporation and is also an Associate Clinical Profes-315 I

l

____...._____.________b

o l ,

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i \

l l i t 1

l l

I sor of Radiology at the University of Pennsylvania School of Medicin Dr. Lin-nemann holds a medical degree and has been involved in the fichivof Indiology

+

and health physics for over 20 years. Id. at 3, 8-9 (Lirmemann):

,105.. f.sdia. tion risk estimates were based on the risk estimators published j

in thd930 report of the Committee on Biological Effects of Ionizing Radia-tion, National Academy of Sciences, entitled, "De Effects on Populations of

< Exposure to IAw Levels of Ionizing Radiation" (the BEIR III Report). These l .

s; l .,

risk estimators assume a linear relationship between dose and response, with no threshold. Id. at 85-89, 91 (Linnemann).

' 106. The risk to an individual of a fatal cancer from a continuous 1-millirem

.j dose would be 1.58 in 10 million per year. De risk of a spontaneous caicer 1 death from other causes would be about 10,000 times greater. The rd!c of a

} gmetic abnormality is about one-half of the cancer risk or about one chance

• J - #

in 10 million that a parent so exposed would experience a live birth with a

'i genetic abnormality. The normal genetic abnormality risk from other causes is about one in ten. Even if the entire population residing within 10 miles of the Davis-Besse plant were to receive this dose (! mrem /yr), one would not expect simgle fatal cancer or genetic abnormality to occur. Id. at 89-90 (Linnemann).

107. Question 17 asked, "What are the principal chemical components of the nonradioa:tise sludge that are mixed with radioactively cordaminated resins?" Dr. Gary F. Bennett who holds a Ph.D. in chemical engineering addressed this issue on behalf of Licensee. The Presiding Officer has rsviewed his qualifications and experience and finds that he is qualified to give expen testimocy in this pmceeding. Lic. Testimony at 1,9 (Bennett).

108, ne sludge tha is dir. charged to the settling basin consists ofimpurities ;

, remtred from the raw lake water together with chemicals used in and produced t ' by the water treatment piocess. These are calcium hydroxide, sodium aluminate, and calcium carbonate. The sludge is mainly a suspension of these incrganic 1

l' solids in water. Id. at 94 (Bennett), /

j 109. The sludge has been chemically analyzed by standard analytical proce-dures to determine the chemical and physical characteristics of the sample. Id. af

, 96 (Bennett). The sample that was analyzed was representative of the basin sed-  ;

iments because the water treatment process produces little variation in content, and the sample was a composite of several subsamples. 'IY. 41314 (Bennett, j Briden); Tr. 619 (Bennett).

110. The chemical analysis shows that other than the w11ter treatment chemicals themselves, the sludge contains heavy metals and other impuriud found in Lake Erie water but in a more concentrated form. The settling txtsin

{

, bottom sample has a pH of 9. At this pH level, the metals would exhibit i close to their minimum solubility and maximum resistance to dissolution and leaching. Lic. Testimony at 96-97 (Bennett). The Davis-Besse sludge is fairly I typical of that produced in municipal water treatment facilities. M t)rincipal

)

316 l

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solid constituent is calcium carbonate. He concentrations of heavy metals in

. a ,

the Davis-Besse sludge are smaller than those in sludge produced by the water treatment facility of the Town of Oregon or the City of Toledo. Id. at 94-%

W ,

. (Bennett).

11L ne settling pond sludge was also tested in accordance with the

'extracdon procedure (EP) toxicity tests called for in the U.S. Environmental l

Protection Agency's regulations implementing the Resource Conservation and

,s. . . Recovery Act (RCRA), 40 C.F.R. Part 261, Appendix II. Comparing the

'j

~

'('

~

j malts of the tests with the RCRA standards (40 C.F.R. 6261.24) shows

~

4 that the settling basin bottoms were well below the EP toxicity limits. Given i

' - Se characteristics of the sludge and resins, the sludge does not exhibit the

- characteristics of reactivity, corrosivity or ignitibility as defmed in the U.S. EPA

. I regulations (40 C.F.R. 50 261.21, 261.22, and 261.23). Water treatment sludge is not listed as a hazardous waste in 40 C.F.R. Part 261 Subpart D of EPA regulations. Lic.1bstimony at 97-98 (Bennett).

112. Some of the trace metals and organic constituents of the sludge are

' listed by EPA and subject to limits. R. 41417 (Bennett). The wane meets the aplicable concentration limits. Lic, Testimony at 97 98 (Bennett). Although

' listed metal and organic constituents are present, this does not ind;.cate that the waste is hazardous. W. 620 (Benneta.

' 113. The Presiding Officer's ciltteenth question asked,"What is the rate of

'l '

< ' bio'4ogical or chemical degradation of resins?" Question nineteen asked,"What I biological hazards are there from resin degradation that have been published in the scir,ntific literature or are known from manufacturers' tests?"

114 Mr. Richard lietherington addressed these issues on behalf of Li-censee. Mr. Hetherington holds a bachelor of science degree in chemistry from Tbmple University. He has worked in ion-exchange and water treatment fields for over 40 years. Lic. Testimot:y at 9 (Hetherington). Mr. Bimber who has also

. worked professionally with ion <xchange resins provided testimony on resins on behalf of SOS /CLO. The Presiding Officer has reviewed the qualifications of both witnesses and concludes that both are qualified to testify as experts in this

, proceeding on the subject of ion-exchange resins,

> 115. Ion-exchange resins are ncA ubject to biological degradation. Lic. Tes-timony at 100-01 (Hetherington). Interveners' wimess confirmed that the poly-meric structure of resins is very resinant to degradation. Tr. 4( 163 (Bimber).

116. The resins are also resistant to chemical degradation. Tney are ex-

• - tremely insoluble in water. Even in solvents and solutions used in the labora-tory, the resins are essentially insoluble. Decomposition can occur, but requires extremely powerful oxidizing solutions used in the laboratory, such as boiling nitric acid or chromic nitric acid. Lic. Testimony at 101 (Hetherington).

l .

• , 117. There will be essentially no chemical reaction between the itsins and the environment which might cause the release of radioactivity from the I 317 l

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<. resins. Impuritds / tnt l.aveevi ed,.ungee! ento a resin may be dehberately cluted (i.e., removed) frd thnesin 4 a regeneration process. This procots rep

.,,' . quires the use of relatin/pdog acids or bases. Id.pt 102-03 (Hetherington). It

' ~ ,

is highly unlikely that acids or bases of sufficient r~erigth exist in the natund

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• l environment. Moreover, the manner in which the burial cells are constructed, cs c [, . *

.j well as the packing characteristics of the resins, would prevent water cir< ding /

jj: j [ ,. ]i

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(' ionizable salts and acids f om percolatirChrt> ugh the resins. Mso, the resins

,-7, are mixed with a very large #clume of lime sludge. Even if water

,- e percolate through the resin /s'udge mixtve, the alkalinity of thi,1taten/11 would ,;,3" '

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neutralize any strong acid. ld at 103-04 (Hetherington).  ;

118. Mr. Bimber suggested that perhaps fertilizer might clute radioutclica f . r

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J J l  ; frum resins. Bimber at 5. However, fertilizer wpot be 7.pplied to ihe burial site

- , (Lic. Testimony at 40 n.12 (Swim)); the resins have a greater affinity for cesium

"' (the principal radionuclides on. the resins) than for potassium in fertilizer ('IY. 385 (Hetherington)); elution will not occur if the cluting lons are not in solution

• - < and if the resins are encrusted ('li. 376, 378, 380, .985 (Hetherington)). Elution f therefore would not occur in solidified waste. D. 384-85 (Hetherington). Fin illy, ;

- the residual ion-exchange capacity 'that remains on the resins after they are discharged provides funher pmtection agair.st elution of the radioactive ions, because spent resinegipn they are digharged still retain about 40% of their fon-exctange capabilitats. The preser.cdn the environment ofions with a greater .

7

affinity for the resins than tose in pesently held on them would not be

.l' expected to canic leakage of radk) active ions from the resins. Lic. Testimony at

\ 104 (Hetherington).  !

119. Die ion exchange resins are not only inert but also nontoxic. Sim-

- Ilar resins have been tised in drugs and cough medicines on the market for e

, years. Lic. Cestimorty at 102 (Hatheringford R. 364, 374 (Hetherington).

120. There fs no credible evi6Mcc tra indicates that the resins might be

, carcinogens. See 'IY. 373-75,382-84 (Hetherington). The SOS exhibit does not '

suppoY.his claim. (SOS Exh. I marked at Tr. 310, not received.)

l' 1. The resins are not combustible until moisture is removed. When (

I i Mme is removed, the resires will been in flame at 230*C. It is estimated that Aulo-ignition of pure resins will occur at 427 C (800*F). At Davis-Bene,'

.. bowNer, the resins will not be buried in pt.re form, but rather are already mixed ,

with tr.ousands of cubic feet of water treatment sludge (which is prede:ainantly

• calch rn mrbonate) and will be solidified by cerr:ent kiln dust. Such a solidified mixture will not be combustible. Lic. Testiniony at 105 (Hetherington).

122. The Presiding Officer's last issue cated, " Describe the Licensee's I , , plans for site management during operation, for marking the burial site, and

! for record keeping at the buria'. six." ThKitsue was addressed by Mr. David

-* "[ }1- -

M. Wallace, a cor stiuction engineer and Lead Nuclear Projects Manager for '

the Davis-? esse Fuclear Station, and b / Ms. Scott.wasilk. Daring cross-l \

318 )

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examination of Licensee's witnesses, Mr. Hendron and Mr. Swiin also provided

,[# .. , - .

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pertinent information. The Interveners presented no witnesses to testify on issue y '. ,

b 20.

.' ; ^~ 123. Each time it becomes necessary to remove and bury settling basin

. . . .. ~

M- .,a '

sludge, the Licensee will appoint a project manager who will be responsible for

't/ F ,. ; '

' ,' ' ' - construction of the burial cell; for removal of sludge from the settling basin; for

.' 9 ,

3

't, '

di transportation of the sludge to the constmeted cell, and for the subsequent closure X'.

~i of the cell. After the cell is sealed and the burial project completed, Licensee's

")' , .

...'" k, - [, 'i Environmental Monitoring Section will assume responsibility for monitoring the

,, y ,  ; . . -

burial site and maintaining the cell. Id. at 106 (Wallace).

i'

' ]l 124. 'Ihe burial project will be conducted in accordance with the Davis-Besse Project Management procedure. he project team will be composed i -

of members of the var'ous divisions with responsibility over aspects of the I ..

project. The procedure brings all these divisions together under one project man-I' '

. agement and ensures an integrated, interdisciplinary approach to the project. Id.

'. at 107 (Wallace). .

125. The project manager will develop a detailed project plan which will e,

' define the scope of the work to be done, the project goals and objectives, the project team organization, the method of implementation, schedule, and

'( 4 functional assignments. The project team will perform any further engineering work that might be necessary (for example, to satisfy any additional design featutes that might be required by the Ohio Permit to Install). The team will

- , develop the final specifications for the project (including the specifications for the synthetic membrane liner). Id. at 107 08 (Wallace). The ability to withstand

- puncture will be taken into account in the selection of the synthetic membrane, as will be the compatibility between the waste and liner. R.191 (Swim); Tr. 582 (Hendron).

}o . , ,.

I-0 '

. . - I 126. Tne actual construction of the cells and transportation of the waste

,\[ .

^

i' will likely be performed by contractors. The contractual documents will pro-vide the specifications for the work to be performed and will include quality

,. . p ,

controls. The project team will oversee the work to ensure it meets the specifi-h, cations. Lic. Testimony at 107 08 (Wallace).

s 127. Construction of an individual cell should be completed in less than 90 days. 'IY.195 (Wallace). The construction will be conducted so as not to

^r '

4* .- disturb previously constructed cells. Tr.193-94 (Swim). If a new cell is going l ,

to be built adjoining a previously constructed cell, the sides of the new dike will be constructed before rip-rap is removed from the wall separating the two cells. D.195 (Swim). The removal of the rip-rap will cause no damage. Tr.194

];i.f .' '

, j (Swim). If it rains during construction of the cells, the rainwater will be pumped

, 1 j out and will not affect the materials being worked. Tr.196-97 (Wallace).

)?/.

'J',.~!- '4

.- 128. After the cell is conscucted, the waste will be removed from the

,.'l- . ,

settling basin and transported to the burial cell. A number of representative l , 'j i

• ) /

• 319 i )l '

T e

i- - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _

- ~'

. ' samples of the sludge will be taken for an analysis. Contractors' vacuum trucks will be used to draw the sludge from the settling basin and to transport the waste

'. to the burial site. Lic. Testimony at 108-09 (Wallace).

129. At the burial site, the waste will be mixed with a solidifying agent (cement kiln dust). Id. at 109 (Wallace). This process will be performed in ac-

,. .U.'. -

,, cordance with formal specifications to ensure uniformity of the product Tr. 425

. (Wallace). Typically, a backhoe bucket would be used to mix the waste and solidifying agent in the cell. Tr. 425-26 (Wallace)! 'It 433 (Hendron). The

/

'3

• same wide-tired equipment would be used to mix the material as was used to

,.r ,'.

, y';

,- , i place and compact the liner; hence there will be no unusual loads placed on

, c - , the liner. Tr. 433 (Wallace). The solidifying agent will cause the waste to set

,. . . . - .. up. Lic. Testimony at 109 (Wallace).

,. _130. After the waste has solidified, the cell will be capped and the cover seeded. Id. (Wallace). This process should be completed in about a week. Tr. 434

. (Wallace). The volume of the cell is sufficient to encompass the waste and kiln

- dust with about a 1 foot freeboard. 'Ihe waste therefore will not overtop the 4 cell, even if rain occurs during the capping process. Tr. 203-04, 583 (Swim);

Tr. 65-36, (Herdendorf); Tr. 623 (Hendron).18 131. Licensee's Environmental Monitoring Section will monitor ground water and conduct periodic inspections of the cells. Lic. Testimony at 109 (Scott-Wasilk). Final procedures have not yet been prepared, since they will depend on the terms of the Permit to Install issued by the State. Tr. 426-27 (Scott-Wasilk).

132. The Environmental Monitoring Section's current plan is to monitor ground water in four wells. One of the wells will provide background data, and l

the other three will be located in directions of possible ground water flow. Water in these wells will be sampled semiannually for priority pollutants, pH, and radioactivity. Lic. Testimony at 109-10 (Scott-Wasilk). Licensee will also remove and test leachate in the cells. Tr.193 (Swim). The disposition of the teachate

( s will depend on the results of the test. Id. Licensee expects some leachate in the cells initially after they are completed. After a short while, however, leachate

- should no longer occur. Tr. 192,423-24 (Hendron).

133. The Environmental Monitoring Section intends to conduct formal inspections of the cells and dikes semiannually to ensure that cracking of the cover or erosion does not occur. The cells and dikes will also be inspected after any significant flooding event. Lic. Testimony at 110 (Scott-Wasilk). In addition to these formal inspections, the Environmental Monitoring Section conducts site

. surveys several times a week. The survey teams pass by the burial site area and will be able to observe the condition of the cells. Tr. 245-46 (Scott-Wasilk).

, 4 e;. ' , . ,

18 The ume Licensee esumates for closure is well within the period allowed by ohio's seguisuons. Tr. 623 4 ' l ., ' .

(Wa!! ace).

. e 320 I

l

. ** 134. If any significant deterioration of a cell is detected, it will be re-

. paired. Lic. Testimony at 110 (Scott-Wasilk); 'lY. T.00 (Scott-Wasilk). If the a

vegetative cover on the cell dies, new grass will be planted. 'IY. 247 (Scott- _

Wasilk). The grass will be watered to the extent necessary. Tr. 248. The Environ-

.. .,s -

mental Monitoring Section will also deal with any deep-rooted plants that might

seed themselves on the cells and compromise the integrity of the cells. 'IY. 248-

, - , 49 (Scott-Wasilk). Plant roots are, however, unlikely to penetrate the gravel layer separating the topsoil and compacted clay, since the gravel layer is xeric. "Ir. 596-

.- 1 97 (Jackson). The gravel layer also impedes insects from burrowing into the

• - ~ *'

.  : fl compacted clay below. 'lY. 254-56, 597 (Jackson). Groundhogs could perhaps lIb ..' -

. t, .

tunnel into a cell, although the gravel layer would present a barrier. Tr. 256-57 y' f (Jackson). Licensee, however, conducts a groundhog eradication program under the direction of the U.S. Fish and Wildlife Service in consultation with the Ohio s ._ '

~ ' '

. .,, Department of Natural Resources. 'lY. 598 (Scott Wasilk). .

- , 135. The Environmental Monitoring Section will maintain a description of

, . , the waste in each cell, identified by type, volume, content, and date of burial. The location of each cell will be surveyed and recorded on a plat. In addition, all settling basin sampling data, all ground water monitoring data and reports, all burial site inspection reports, and all maintenance reports will be retained. These

, documents will be kept available for inspection and will be treated as NRC permanent records. Project records pertaining to the design and construction of

. the cells will also be retained as NRC permanent records under the Davis Besse Nuclear Records Program. Lic. Testimony at 110-11 (Wallace, Scott-Wasilk).

136. Since the burial cells will be surveyed and recorded on a plat, and

' s., ,

since the cells are raised, diked structures, there is no need to erect monuments

. or markers to define the bounds of the cells. Licensee will post signs to alert any

. ., .  : person in the area and to prohibit unauthorized access. Id. at 111 (Scott Wasilk).

I 137. The Presiding Officer concludes that the Licensee has developed

~ '

1 sufficient information to resolve the disputed issues in this case. The levels

'. . of radioactivity in the waste are known to be very low. The chemical nature of

- . the waste has been ascertained and evaluated against EPA criteria. The location of the site has been specified, and the design characteristics of the cells are sufficiently developed to permit determinations as to the environmental impact of the project. Sec. e.g.. TY. 624-25,953 (Hendron).25 The geology and hydrology of

'. the site, including the potential for flooding, have been extensively explored. The

~

effect of the project on wildlife and endangered species has also been evaluated.

~-

. . 138. The record in this proceeding establishes that the waste in question

-?

e at the Davis Besse site presents no radiological or chemical risk to the public l' ,

health and safety.

18 lbrther details an site design and operation may need to be developed by Licensee to obtain a Permit to Install

, . , ,i '. ', ,

' '** - '.* fnsn the state, but that process and the state's requirements belong to the state, and are beycsid se province of the Comrrussion.

( ,

321

t 139. De record in this proceeding also establishes that the waste burial project at the Davis-Besse site will have no significant environmental impact.

3, , '.

~

+

.m III. CONCLUSIONS OF LAW

e . s 'c.*': ..

", ../ ' ~

• 1. There is reasonable assurance that the secondary-system demineralized

'..5 (.'

f -

resins and water treatment sludge can be buried at the Davis-Besse Nuclear

.,.'. g s* .-

1 Station without endangering the health and safety of the public.

f g,,..,,. ,

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. . . , , l- l 2. The issuance of a materials license authorizing burial of this waste is

,- p.'. ' ,. .- %, g ,-

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not inimical to the public health and safety or the common defense and security.

3. The burial will have no significant environmental impact, and the Na-

. : a= .i

. . tional Environmental Policy Act therefore does not require that an environmental l .. , ,

9  ; impact statement be prepared. 42 U.S.C.14332 (1982).

, , , ," j -

4. Dere are no unresolved conflicts concerning alternative uses of avail-able resources, and the National Environmental Policy Act therefore does not require further studies. 42 U.S.C. 64332.

. 5. There is no reason to believe that any endangered species will be

'2 affected by the waste burial, and the consultation provisions of the Endangered Species Act are therefore not invoked.16 U.S.C. i1536(a)(3).

6. The NRC's environmental assessment, 50 Fed. Reg. 41,266 (1985),

is amended pro tanto to include these findings and conclusions.10 C.F.R.

f 51.103(b); Allied-General Nuclear Services (Barnwell Nuclear Pbel Plant Separations Facility), ALAB-296,2 NRC 671 (1975).

, , 7. He NRC environmental assessment is amended to include Licensee's

- , project plan entitled " Project Plan / Conceptual Design Disposal of Very Low Level Radioactive Waste at Davis Besse Site" (September 1986). Authority to

. . , ,. . approve amendments to the plan resides with the NRC Staff.

t IV. ORDER r -

.' The authority previously granted by the Nuclear Regulatory Commission to

The Toledo Edison Company to bury water treatment sludge and secondary-side

• ~

demineralized resins on the site of the Davis-Besse Nuclear Station is affirmed. In

. accordance with the Commission's Order of February 21,1986, this Decision will become final agency action 30 days after the date of issuance, unless the e e .e

+ "% gi g

'1

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• 9

, 322

. , Commission on its own motion undertakes a review of the Decision. No petition

.. , for review of this Decision will be entertained.

IT IS SO ORDERED.

,~

. ~

'l  ;,

Helen F. Hoyt ADMINISTRATIVE JUDGE

. - . Dated at Bethesda. Maryland,

' " - - '.  ; this 15th day of April 1987.

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Cite as 25 NRC 324 (1987) LBP 8712 c . . ,' .

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• - UNITED STATES OF AMERICA

^ NUCLEAR REGULATORY COMMISSION

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7.

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ATOMIC SAFETY AND LICENSING BOARD

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Before Administrative Judges:

- +' ,

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. I

,c 'g- 4 Helen F. Hoyt, Chairperson c* , .

~

Gustave A. Linenberger, Jr.

r ,

'> < Dr. Jerry Harbour

, s

'. . , i in the Matter of Docket Ncs. 50 443 OL 50 444 OL (ASLBP No. 82-47102-OL)

(Offsite Emergency Planning)

.' 3

, PUBLIC SERVICE COMPANY

^

OF NEW HAMPSHIRE, et al j (Seabrook Station, Units 1

~

and 2) April 22,1987

.o . , , .

In this Memorandum and Order, the Licensing Board finds that Applicants'

- . petition for a waiver of the regulations requiring planning for a plume expo-sure pathway emergency planning zone in excess of a 1 mile radius fails to

.j j ,  ;

make a prima facie showing on its technical merits that the waiver should be j

- ' granted. Accordingly, the Board holds that the petition may not be considered {

, further.

z

. . c

,s REGULATIONS: WAIVER

's .-

The prima facie showing required by 10 C.F.R. 5 2.758 for a waiver of a

. ** . .. Commission regulation requires the Board to determine whether the petition for

. waiver with its accompanying affidavits, weighed against the responses of the

, y* . ,

other parties, presents legally sufficient evidence to justify the waiver request

. .U. ., , Q;.',,;; et' ,.*'-

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324 f

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._.___m_ _ _ _ _ . . _ . - . _ . .

. ? -

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MEMORANDUM AND ORDER (Ruling on Applicants' Petition with Respect to

., Emergency Planning Zone in Excess of 1 Mlle)

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' ^

BACKGROUND ON THE APPLICANTS' PETITION

'd

. . b I # '

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, The Board has before it " Applicants' Petition under 10 CE.R. 2.758 and 10

i,'  : '*

CE.R. 50.47(c) with Respect to the Regulations Requiring Planning for a Plume p Exposure Pathway Emergency Planning Zone in Excess of a One-Mile Radius," l

,- - .- filed December 18,1986. Applicants' memorandum in support of their petition

, accompanied the petition. Attached to the certificate of service was a list of those documents Applicants relied on in their petition. The Board has attached _

this list as Appendix A.

On December 23,1986, this Board ordered that any party to this proceeding could file a response in accordance with the provisions of 10 CE.R. 6 2.758(b).

We affirmed the due date for responses in a Memorandum and Order dated January 7,1987 (unpublished), and again on January 21,1987, in response to a motion for extension filed by Massachusetts Attorney General. On January 27, 1987, the Board granted an extension to February 2,1987, to counsel for New England Coalition on Nuclear Pollution (NECNP) and the NRC Staff due to unusual conditions in the Washington, D.C. area. Seacoast Anti-Pollution League (SAPL) asked for and received a 1-day extension.

Opposition to Applicants' petition was timely filed by Interveners: (1)

" Town of Hampton Memorandum in Opposition to Applicants' Petition to Reduce EPZ"; (2) "NECNP's Opposition to Applicants' Petition Under 10

., C.F.R. 2.758 and 10 C.F.R. 50.47(c) for Waiver of Ten-Mile Emergency Planning Zone"; (3) " Seacoast Anti-Pollution League's Brief in Opposition to Applicants' Petition Under 10 C.F.R. 2.758 and 10 C.F.R. 50.47(c) for Reduction in the Size of the Seabrook Station Plume Exposure Pathway EPZ" and First Supplement dated January 29, 1987, and Second Supplement dated February 6,1987; (4) " Town of Amesbury Response to Applicants' Petition Under 10 C.F.R. 2.758 and 10 CE.R. 50.47(c) with Respect to the Regulations Requiring

. Planning for a Plume Exposure Pathway Emergency Planning Zone in Excess

, of a One-Mile Radius"; (5) " Attorney General Shannon's Memorandum in Opposition to Applicants' Petition Under in CF.R. 2.758 and 10 C5.R. 50,47(c) with Respect to the Regulations Requiring Planning for a Plume Exposure Ps:hway Emergency Planning Zone in Er. cess of a One-Mile P,a:'ius" (attached

. , , to the Attorney General's Memorandum were affidavits which are identified in s

4 .

325

. i.

l l

l our Appendix B); (6) Town of Kensington " Partial" response 2; and (7) " State of Maine's Memorandum in Opposition to Applicants' Petition to Reduce the j, ,

'c Emergency Planning Zone."

2 - .. - ' -

') The State of New Hampshire ftkd i st timely response in which the State did not take a position before the Board with respect to the Applicants' petition.

. :. t On March 26, 1987, there was filed with the Board " Applicants' Motion H U, ., j y , [,[~ . -

-l - , to File a Reply to Massachusetts Response to Applicants' Petition Under 10

~ '

. ;. .  ; ,; , . t- . ' :,. C.F.R. 2.758." NRC Staff opposed Applicants' Motion on April 10,1987. We

, ?,: 7 - ,.

> ' - . (,. deny Applicants' motion to file a reply to Massachusetts' response on the same

.-* ~.-

'h 1 grounds as that cited to us by the Staff. The provisions of 10 C.F.R. 6 2.758 do

/j'

, . not contemplate the filing of replies to responses, and no good cause has been

,' '- put forward by Applicants in this case to permit them to go beyond what the

./ rule provides. Accordingly, the Applicants' reply has not been considered by e . .

' 'j this Board.

, 3 10 C.F.R. I 2.758 Section 2.758(a) provides that Commission rules may not be attacked in an adjudicatory proceeding concerning initial licensing, such as the operating license Applicants are seeking in this proceeding. Since the rules under Part 50, specifically 10 C.F.R. 6 50.47(c)(2), provide that a plume exposure pathway j (EPZ) for nuclear power plants shall consist of an area of about 10 miles in

'l radius, any reduction of the EPZ could only be permitted providing that a petitioner sustain an application for a waiver or an exception. The standard for determining if the petition is successful is whether the petitioning party has made a primafacie showing that the Commission rule would not serve the purpose

' ', for which the rule was adopted. If there is a negadve finding, no evidentiary proceeding will be permitted and the matter cannot be further considered by the Board.

4 The provisions of 62.758(b) are as follows:

(b) A party to an adjudicatory proceedmg involving inidal licensing . . may pention that the application of a specified Commission rule or regulation . . be waived or an exceptico made for the particular proceeding. De sole ground for petition for waiver or exception shall be that special circumstances . . 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. he pention shall be accompanied by an af6 davit that identifies the

. specific aspect . . as to which application of the rule or regulation . . would not serve the purposes . . . and shall set fonh with particulancy the special circumstances alleged to

.,t' ,. **

js IBoard records show only a three-line objecuan dated January 23, 1987. No complete response pnmused by February s.1987, was received.

326

n justify the waiver or exception requested. Any other party rnay 61e a response thereto. by counter-af6 davit or otherwise.

5 j - >

10 C.F.R. I50.47(c)

~'

,( .i. , .- T ..., t Applicants have also sought a grant of relief from the provisions of

. , . '.' l50.47(c)(2) setting the 10-mile radius for emergency planning around the

' " ,' ^

S, .

.;- 1 Seabrook nuclear plant. In the event the Board determines that the permanent j.-', "

/ , , f ( , ,, '

] waiver or exemption under 6 2.758 is inappropriate, Applicants solicit the Board

, , y * .,

1 . . , ., 3 49 to grant relief under 150.47(c) by applying the three criteria articulated in the

. p;; , ,1 - .,

, .! rule. In anticipation that a waiver in respect to emergency planning regulations

• f , . .

. , may be granted under $50.47(c) only after a showing that 10 C.F.R. 9 50.12

,,'

• criteria have been satisfled, the Applicants have set out arguments meeting those l, -

criteria as well.

.'.' DISCUSSION

! Pertinent to any discussion of the basis of our decision on Applicants' petition

- requires that we set forth the standard of what this Board considers is appropriate l

for a prima facie showing that the Commission rule for a 10-mile EPZ can be

. waived or an exception made for this proceedmg.

.  ! The primafaele showing standard was not defined in 92.758(c) and only one

. .j licensing board has, in a footnote, found that it is reasonable to equate " prima facle" showing with substantial showing. Carolina Power & Light Co. (Shearon

.j Harris Nuclear Power Plant), LBP-85-5, 21 NRC 410, 443 n.16 (1985). That Board did go on to say that this would mean that affidavits supporting a petition

.; for waiver should present each element of the case for waiver in a persuasive I manner and with adequate supporting facts from a qualified expert, where

'j appropriate. To this Board the difficulty here lies in accepting our colleagues' explanation of whatprimafacle showing is with their labeling of this standard as being a substantial one. Were the standard such as to require the proof suggested by the use of term substantial, then there would be a need for much more than

" adequate supporting facts from a qualified expert." We believe that the label 7

of substantial would require full, important, essential, and considerable factual

, .g ' v -

^

detail which is somewhat more than mere " adequate supporting facts."

It was against this background that the Board had to examine the use of an

~

exemption of one of the more controversial public concerns relating to safety of the population around a nuclear power plant - that is, the evacuation of persons within only a 1 mile radius in the event of a nuclear incident. We find little

g. '/ ( . ' ' ; .

,i guidance in the cases before this Commission or the regulations. We would be d '. 'y , , , ~,, ' ' / . O, '$ less than candid if we did not express, albeit dicta, our belief that the provisions

'4 - ' -

of 62.758 were never intended to be used in deciding an issue of this magnitude.

v 327

__ .m

The Appeal Board in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-653,16 NRC 55, 72 (1981) stated the

, , y, standard with which we associate in this instance when it said that "pri na facie

, e. '

evidence must be legally sufficient to establish a fact . . . unless disprored." We

, j have applied this standard and find Applicants' petition does not meet the

, :J' <r, ,

- ', required primafacie showing needed to certify the matter to the Commission for final determination.

Applicants in a response to Joint Interveners' appeal of our order of January

. 'oJ',** , ..

' -- 7,1987, before the Appeal Board on January 27, 1987, at pages 9-12 has

' ~ '

-4" . . g ,' ;J .{

~

also stated what this Board has applied in determining the standard to be used 3

,.,'J

' %. in judging whether this petition passes muster. Briefly stated, the Board has

, />. , ,,

] determined that the primafacie showing standard is' whether the petition with

.lt ,,, c ,

its accompanying affidavits as weighed against the responses of the parties, presents legally sufficient evidence to justify the waiver or exemption from the

. ,; e ,

/ requirement of a 10-mile EPZ.

10 C.F.R. I 50.47(c)

The provisions of this section provide that if an applicant fails to meet any of

, the sixteen offsite emergency planni1g standards established in 5 50.47(b), the applicant will have an opportunity to demonstrate the following:

(1) that deficiencies in the emergency plans are not significant for the plant; or

. (2) that adequate interim compensating activities have been or will be taken; or (3) that there are other compelling reasons to permit plant operation.

The Applicants have argued that the " deficiency" of a 1-mile zone is not

', significant for the Seabrook plant because it has demonstrated that it is in

'? '. compliance with the NUREG-03% rationales that projected radiation doses would not exceed the Protective Action Guide levels beyond 1 mile. We believe

.' that our discussion of Q 2.758, below, has demonstrated the unacceptability of this argument.

. The second alternative is that interim compensating activities have been or

. . will be taken. Any discussion of such activities is premature to say the least. The /

Board is presently working toward resolving such matters in the litigation of

- ' the New Hampshire Radiological Emergency Response Plan (RERP). It would be inappropriate to grant the waiver on the as yet untested New Hampshire  !

emergency plans.

The third alternative of " compelling reasons" is also rejected. The Board i has no difficulty with accepting Applicants' theory that Scabrook is a valuable ,

energy resource. But that does not relieve the Board of its responsibility to make l

,- , .

• its finding that there is reasonable assurance that adequate protective measures i

328 l  !

l l t i

- can and will be taken in the event of a radiological emergency at this valuable

- energy resource. We also reject the argument that limiting a completed plant to

- '- low power operation is an unnecessary and unjustifiable economic burden. The 3.' , ,

regulations are quite clear - the plant must have an acceptable RERP prior

.~' .

to going to full power. Other events occurring in this case make clear that the

.. .y- emergency plan for only one of the two states involved is ready for litigation

.o (5 ~jo on the issues of adequacy of various emergency preparedness provisions. The i.,

,f I ',

( ,' ; ,,' -p

') ...i

} , * ,jl second state plan, filed by Applicants, has been circulated to the parties very recently. In short, there is yet much emergency planning work to be done before

'e, " ' . .

.j we could determine that there were only minor cosmetic problems left which

,. . ,6, i could be waived as insubstantial.

, ' .i Applicants have not made their case here with any of the three criteria. We

' ~'

,' further note that i50.47(c) provides for waiver of planning standards set forth

,' in 6 50.47(b). The requirement for the 10-mile emergency planning zone is set

~

j

i. .

'j forth in 6 50.47(c)(2).

s ' , ,

j INTRODUCTION TO TECIINICAL ISSUES I

This discussion deals with the narrow question of whether Applicants have made a prima facie showing in support of their motion to reduce the size of the Seabrook plume exposure pathway emergency planning zone (PEPZ) to 1 I

mile. We have addressed this issue separately from the legal and regulatory

,- ,. 3 sufficiency set forth above. Applicants' motion was accompanied by technical

. documents and peer review testimonials purporting to provide a prima facie showing that a 1-mile PEPZ for the Scabrook Station is technically appropri-ate. (See Appendix A.)

l'

,- ' ,. Technical support for Applicants' motion was provided in the form of three

, J. 1 documents:

(1) YAEC-1502, " Licensing Aspects of the Seabrook Emergency Plan.

ning Zone Study," S. Lee and P. S. Littlefield, December 1985;

. (2) PLO-0432, "Seabrook Station Risk Management and Emergency Planning Study (IBIEPS)," Pickard, Lowe and Garrick, Inc., Decem-

- ber 1985; I (3) PLG-0465,"Seabrook Station Emergency Planning Sensitivity Study (EPSS), Pickard, Lowe and Garrick, Inc., April 1986.

These reports are summarily characterized as follows: Item 1 presents the Yan-

- ';  ; kee Atomic Electric Company's dose assessment results for the Seabrook Sta-

- r tion that reflect not only the characteristics of the Seabrook Station but also the insights gained from numerous accident and source-term studies since the

.*.3 . , , ,

publication of WASH 1400 and NUREG-0396. Item 2 presents the results of

.- ..,y t

. .j a technical evaluation of emergency planning options and other risk manage-y . ,. .

. 1 329 4

.,, .a e m

k ment actions under consideration for Seabrook. These results include an update of the Seabrook Station Probabilistic Safety Assessment (SSPSA) prepared for Public Service Company of New Hampshire and Yankee Atomic Electric Com-pany by Pickard, Lowe and Garrick, Inc. (PLG-0300, December 1983). As with Item 1, it includes more recent insights about source terms than were avail-

. ,. - '~i able for the SSPSA analysis. Item 3 is most directly supportive of Applicants'

~.

E s ,," *

' ,'. .g motion in that it reverts to the soutte term methodology of WASH-1400 in

.-e .. . . ,, 3 performing a sensitivity study to help evaluate emergency planning options for

-q

,y, ,

.,. j Seabrook. Characterizing the source-term methodology as extremely conserva-43, .

.. g tive, EPSS concludes that a PEPZ of no greater than 1 mile is appropriate for w.

~

,, .~'. , . ,q  ;

Seabrook.

( [h, i The thrust of Applicants' technical discussion is that the design characteristics

. - C ,' *

, of Seabrook are such that accident analyses using WASH 1400 methodology -

~

7 ,

without taking account of advances in the understanding of source-term behavior

developed since the publication of WASH 1400 - yield environmental releases of radiation at 1 mile from the plant site that have lower risk consequences than those deemed acceptable by NRC's Safety Goals. Additionally, Applicants state

, .  ?

that said risk consequences are comparable to those considered by the authors of

, NUREG-0396 in concluding that an approximate 10-mile PEPZ is appropriate for all light water plants. Hence, say Applicants, a 1-mile PEPZ is justified for Seabrook.

Other inputs reviewed by the Board include the following: a Brookhaven National Laboratory (BNL) final report (March 1987) prepared for the NRC that performed sensitivity studies of those portions of PLG-0465 found to be most influential in calculating Seabrook risk estimates; the response of the Commonwealth of Massachusetts to the Applicants' motion,- in particular the affidavit of S.C. Sholly accompanying that response (Sholly Affidavit of 23 January 1987); the response of the Staff to Applicants' motion, which

, provided the affidavit of S. Newberry (Newberry Affidavit of 27 February 1987);

the Review Comments of T.G. Theofanous prepared for the Staff regarding steam generator tube rupture (SGTR),12 January 1987; a Staff memorandum from Warren Lyon to Charles E. Rossi concerning SGTR events during severe accidents at Seabrook,3 March 1987; and the comments of the New Hampshire Yankee Division of Public Service of New Hampshire transmitted by letter of

.- January 20, 1987, to V. Nerses of the NRC Staff, concerning the BNL draft

+

report A '852 (predecessor of the BNL final report noted above).

. e

~ - . . -

l . ,

l 330 l

l l

1

DISCUSSION Applicants' Case

. ', * ,I, .

The materials submitted by Applicants in support of their motion requesting

', i a reduction of the PEPZ from 10 miles to 1 mile have been identified and

,'  ; ,' - ". . - characterized above. Whereas the materials provide a backdrop of information of f'

O .^' '

', substantive value to formulating and critiquing the Seabrook emergency response

, , .'; . ']

s. -

l. . . ia plan, we address them here in the context of whether they offer sufficient

- , j ,f .

1 technical input to warrant further consideration of Applicants' motion.

,,', ,f <

'Ii ' The Seabrook Station RMEPS (PLG-0432, December 1985) comprises a risk

':c -

^

- ~ *:

I 1

assessment that led Applicants to conclude that the total benefits of evacuation of the populace around Seabrook are very small because the risk without evacuation

- , is already very small and a 1-mile PEPZ is appropriate. The. bases for this conclusion include the following:

, s .

• The potential for early releases to the environment is substantially reduced because of the strength and structural integrity of the large, dry, reinforced concrete containment building; e New data and engineering insights concerning accident sequences involving interfacing systems LOCA indicate an acceptable conse-quence for such events;

• - t

• A broad-scope risk model is used in order to take account of Sea-

) brook-specific plant design and site characteristics and to take advan-l tage of post WASH-1400 advances in data and modeling techniques;

! 24

• Post WASH-1400 advances in source-term assessment are used.

- 'Ihe Seabrook Station EPSS (PLG-0465, April 1986) provides the results of a sensitivity analysis of the risk assessment results from RMEPS, but without source-term assessment advances, using, instead, WASH 1400 source-term methodology. Prom PLG-0465, Applicants confirm their belief that a 1-i mile PEPZ is appropriate for Seabrook, even without taking credit for recent reassessments of source-term behavior, i.e., the conclusion of the RMEPS is insensitive to source-term assumptions, as treated by Applicants.

The two documents just mentioned comprise the thrust of the technical sup-port for Applicants' motion. YAEC-1502 presents a summary of dose calcu-lations made for Seabrook that is consistent with results of the broader-scope PLG studies. However, we do not discuss YAEC 1502 here since its results are largely subsumed within the PLG documents.

An earlier full-scope risk assessment analysis of Seabrook was performed by Pickard, Lowe and Garrick, Inc., for Public Service Company of New Hamp-shire and Yankee Atomic Electric Company (PLG-0300, "Seabrook Station Probabilistic Safety Assessment" (SSPS A), December 1983). Building upon the

.'7" 331

J

~

g ,

y/

SSPSA, the RMEPS (currently before us) updates the earlie'r assessment by in-g, c voking significant advancements involving the following:

i .

Nature and magnitude of radioactive source-term releasest -

3 '. s

..) Strength of the Seabrook large, dry containment and implications of

, ;,7 , .; 9.] its integrity with respect to the timing and magnitude of source-term

, ;g .. ~

, 7 , y,. : 9. ] .

releases;

.y. gU' ' y^ s;' -, .,. g;.f , .g Progression of accident sequences for loss-of-coolant events outside e ; '.- f ~< . .. .. . +) , ,

,+

te q .

of the containment. -1

\

Risk reduction options are examined in the perspective of this updated assess-J.' b :. ^? $ J , ll..W_

' ) . %:.6g - . ., e ment. The significant results are summarized as follows:

(,. T- l,; .f

,'~

~,

%} , flg 3 ,Jya: yr$@.[MM'q;Q, ,

7; , j.l The acute health risk is very low in absolute terms as well as in relation to any known standards of acceptability or safety goals. Even under the gn , . G " 7 , ' Qv 7 7, g 3. ;it;1 assumption of no immediate protective actions, the acute health risk

. , p o ,.3 , , .j,.

1 estimated for Seabrook Station is:

t ' N.r ' , o

' ; . D* M I . - More than an order of magnitude less than that estimated in the

- .c 3 j ,; SSPSA, which assumed a 10 mile evacuation distance. .

v ct -e. . r , ,

1 -

More than an order of magnitude less than that estimated in

' l WASH-1400, which assumed a 25-mile evacuation distance.

- About two orders of magrainde less than the NRC safety goal for i

individual risk within 1 mile of the site.

- Substantially less than the level of risk achieved with an EPZ,

, . distance of 10 miles as perceived in NUREG-03%.

- Spatially located close to the plant site, with over 95% located

/ , within 2 miles of the contamment, and over 70% within 1 mile.

9 The latent cancer risk is estimated to be:

- Comparable to that estimated in the SSPSA and in WASH-1400.

More than a factor of 250 less than the NRC safety goal for

~

societal risk within 50 miles of the site.

, q -

Insensitive to assumpdons regarding evacuation because of the

.' role of long-term exposures to low dose levels in the models 4

, used to estimate latent health effects.

. . Staff's Response

'Ihe Staff requested that Brookhaven National Laboratory (BNL) undertake g i a review of the PLO reports ultimately submitted by Applicants in support of

, their motion. The BNL results have been published, first in a draft report (BNL

. e ,

A 3852, December 1986) and in a fmal report dated. March 1987. We have reviewed both reports, which bear the same title," Technical Evaluation of the EPZ Sensitivity Study for Seabrook." Our observation is that both reports deal

, , ,,,  ; with both of the PLG studies submitted by Applicants. We do not present our

<2

• ' * ..** s'* *

.:' . A.

• . A y l? ,,

, Q ,s s , . . , .

q

' 6' '

., ,. ,,4, .

e 332 e

e

__..__,._m __m .2_ c_._ _ _ _

- own summary of the BNL cffort for the reason that Staff's critique of same is seen to be realistic and credible.

y The Staff's response to Applicants' motion is contained in the affidavit of

. p. ,

. Newberry, which summarizes the Staff's current position as follows:

s We believe that a more complete understanding of the Seabrook plant and risk assessment

,f' *T ..

.j needs to be developed before a position can be taken on the risk assesanent aspects of the petition. Ais is primarily due to the low probability estimates for early containment failure

. ,; , i

.] which are a cornerstone of the Applicants' petition. Unresolved questions remain imm the o, - . ' ' , ' , ' . .a BNL review of PLG 0465 (BNL A 3852, Draft Report, December 1986) in the areas of

/ ,.3. - . .

.,. containment loads (including the cornribution to containment accident loads resulting frorn the s

• / ' ,- -

direa ccatainment heating phenomenon), induced steam generator tube rupture, and severe

' l, [' i r ..

. .< >>  ; accidems at shutdown. We believe the BNL questions merit further investigation.%erefore,

,' t ,- [ -

• 'i funher detailed evaluation of accidents at shutdown and steam generator tube rupture is

- ,  ; necessary. Identification of a Seabrook specific contamment event tree with Seabrook specific 3 ,i ** '

catainment loads using the BNL structural capability estimates is also being considered. We

. also believe that funher review of internal and external accident sequences in the SSPSA

' - i (an earlier risk assessment PLG-0300. December 1983] needs to be completed to consider the liblihood and uncertainty of early containment failure at Seabrook.

In addition to assessing the validity of Applicants' risk assessment, the Staff will also be reviewing the Applicants' analysis of the consequence of design basis accidents at

.; Seabrook. In this regard, independent Staff consequence calculations are planned. He Staff also will be examining certain emergency-planning related issues, including the adaptability 1 cf emergency plans for the taking of ad hx measures beyond one mile if necessary (the i founh rationale identified in Applicants' petition), and the rationales for having selected ten i

miles as the appropriate zone for the plume exposure pathway EPL

. s (Newberry Affidavit at 9-10).

The Staff's Newberry affidavit comments upon the major areas addressed by BNL, which are summarized here:

' ~

J1 Interfacing Systems LOCA (Bypassing containment) - BNL's most significant concern in this area relates to the initiation of such an event, it

, being primarily a function of valve failure rate. BNL estimates a higher likelihood of failure than does PLO based upon valve failure rates judged

~

to be more appropriate. However, BNL concludes that owing to credit for

~

fission product scrubbing by coolant in the residual heat removal vault, this situation probably would not significantly change the risk profile assessment of PLG-0465.

. - - Accidents During Shutdown - This item was not addressed by PLG-0465 but was assigned to BNL during its review, In response to the BNL

- draft report. Applicants submitted additional information that pointed to

, the reduction of source term resulting from duration of shutdown as a mechanism that reduces accident significance. The BNL final report,

, p - ll ',' , ,.

- <4 published subsequent to the Newberry affidavit, concludes that the

c.. ..

i, , . >7 u 1

333

l~

j I

l shutdown risk assessment is unacceptable as presently documented (BNL

.' Final Report at 2-26).

,- Steam Generator Tube Rupture - This phenomenon involves the loss of steam generator tube integrity subsequent to the onset of a core melt

- . ,' ,,., *! . accident. This could permit fission product release to the environment via 7e j (-;!' ,

steam generator relief valves, another potential example of containment

.. , _ ~ gj .-- -y '. ; j ,' . , bypass. While not reviewed in detail by BNL, this matter has been

,.c, .

. .7 J,. . . #

considered by the Staff and reviewed by Dr. Theofanous at Staff's f .f . l .'" f [y ' - ;' I"i request. Dr. Theofanous concludes that in the face of uncertainties of 7 3, .q, 7

[ estimates and the recognition that not all tubes am in good-as-new e . ,. e; . . g ,

condition, the effect of induced SGTR should not be neglected and 7

e -

4 7 ' y , < t, d

'N .

prompt reactor coolant system depressurization should be given serious T'  ;

Xi 7 l consideration. (Review Comments of T.G. Theofanous,12 January 1987,

.M- ,.

at 4-5).

Containment isolation Failure - Neither the Statf nor BNL has re-

,-l viewed this matter in detail. Applicants conclude that it has a small  !

~ . ' *.. ,

impact on risk: Staff concludes that fully closed purge and vent valves should provide reliable isolation under severe accident conditions (New.

{

berry Affidavit at 6).

Containment Integrity and Containment Loads - Given that the Seabrook containment is about 23% stronger than the Zion containment, BNL expects the probability of failure should be lower for Seabrook than for Zion. BNL's analysis of the Seabrook containment leads it to  ;

' conclude that failure due to gross Icakage is not likely to occur at a pres- l '

. , sure below 165 psig, including penetrations. Seabrook specific contain.

ment loads were not derived by BNL. Based upon Zion loads previously analyzed by BNL, it estimates a low probability of early Seabrook con- l

. '( tainment failure but considers these estimates to be preliminary; BNL.

^ .  ; '; did not quantify the probability (id. at 6 7).

. Source Terms - BNL finds general consistency between fission

, ,, product behavior in PLG-N65 and WASH 1400. BNL also finds that Applicants' justification of subcooling of coolant in the residual heat removal vault is reasonably supportive of the assumption noted above concerning the decontamination that will be achieved (ld. at 7).

Consequence Modeling - Risk consequences for Seabrook are ob- '

. ', . tained in PLG-0465 through the use of the PLG "CRACIT" code whereas 1 BNL used the "MACCS" code. Differences were found, but BNL be-lieves that these differences are accounted for by differences in modeling

- . techniques used in the two computer codes. BNL did not verify the risk of early fatalities reported by PLG-N65 but did note that the MACCS code would tend to predict more early fatalities than would CRACIT l

.,j j

. (id. at 7-8).

334 {

1 I

l I

l

l L

i

~

$ - For the most part, we consider that the BNL report has been appropriately

- - characterized in the Staff's Newberry affidavit; hence we do not present a

. i; detailed assessment of it here. There is one matter, however, that is addressed s; .. , by BNL that perhaps deserves more emphasis than is given by Newbeny. That

,,(

',, has to do with accidents during shutdown. Because PLG4465 does not address

. , _ g' .

71 ine subject of risk during shutdown, BNL made use of an NSAC report 7 that specifically dealt with this matter for the Zion PWR (NSAC-84, " Zion

[:. *

,' , l Nuclear Plant Residual Heat Removal PRA," July 1985). NSAC-84 results

' ' '"t .1

~'

,' show that the dominant core damage sequences during shutdown derive from j '

E, [,'.t '. ; j * '

loss of the residual heat removal system due to operator errors. Although a ,

.t e i BNL has found that extensive revisions to NSAC-84 are needed to correct

' ' ~ '

deficiencies, these revisions (states BNL) tend to increase the frequency of

'[

core damage. In response to Staff's request, Applicants presented additional information regarding shutdown accidents (PSNH Letter SBN-1225), dated

,e' ,

y. " -

October 31, 1986, Response to Request for Additional Information (RAIs),

i J. DeVincentis to S.M. Long). BNI, states that the result of this analysis is inadequate, if not incorrect, and requires many changes * (BNL Report at 218 through 2-22). [In fairness to the Staff, we note that the foregoing statement was found only in the BNL final report issued subsequent to the Newberry affidavit.]

As will be noted from the foregoing, the Newberry affidavit seems not to take issue with the BNL report. Staff estimates that its full review of the merits of Applicants' motion can be completed by November 1987. (Newberry Affidavit at 8.)

Further insight into the Staff's thinking with respect to one of the above areas (SGTR) is contained in a report titled "Seabrook Station Steam Generator

'1bbe Response During Severe Accidents," January 27,1987 (Lyon Report). This

. ' report was transmitted by Staff Memorandum from W. Lyon to C.E. Rossi, dated

? l March 3,1987. It identifies a number of subarcas in which work has been done,

.' , provides an assessment of that work, and makes recommendations for futum

. , ', , ', , work that may be needed to resolve the question of the seriousness of an SGTR

- . event with respect to offsite risk consequences.

Owing to the high strength and large volume of the Seabrook containment, Applicants state that the containment has the capability to either significantly

.- e - ' delay or to prevent the release of large amounts of radioactive material during

, and following a severe accident involving core damage or core melt. Hence

. - 4 accident sequences that bypass the containment are of particular importance

- to the evaluation of the adequacy of Applicants' motion. One bypass potential involves a path between the reactor coolant system (RCS) and the environment

.' via ruptured steam generator tubes. An SGTR event during a core melt accident

',, while the RCS is at pressure offers the potential opportunity for a radioactive release through the steam generator relief valves, or through a rupture in a steam

, + . -

q ,..,s -

line outside the containment.

., i

?

. i 335

• s

t The Lyon Report says that an SGTR event is probably only of concern 0 .. ,

if the RCS is pressurized, but concludes that a formidable undertaking may

. be necessary to resolve the issue of whether such pressurization accompanied by tube failures presents an underestimated risk to the environment. Lyon

• ' '- ) ' .

< + -

a characterizes Applicants' position on the matter as finding a small probability j,c '. ,

.. .. for the occurrence of the many SGTRs required to produce a significantly large l

' q. , ,. ,1 e

.a containment bypass. The report acknowledges the position of Staff consultant j

' d, -

', 9 Theofanous (as does Newberry, noted above) concerning the importance of I

,.g .

o . , . .

,7 ' * .! RCS depressurization, but expresses the belief that the issue can be shown

]' ,

4m ~

..~.

,1 ultimately (albeit with considerable effort) not to contribute significantly to

- [y. ; ,1 J '; . , , ,

,'( risk. The complexities of the problem are reviewed in considerable detail; the j i ~ * - ' '., ,

3 report identifies several areas for which additional work must be done before

..~

4 .' ,' ,

. j Staff can reach a final conclusion.

T , ' * *

? , We note parenthetically here that Applicants have provided to the parties  !

+ - '

i and the Board a copy of their response to the Staff regarding their reactions

'. i to the BNL draft report, A-3852, enclosed with Applicants' letter to Victor Nerses (NYN-87-002), dated January 20,1987. We have reviewed this response; it purports to set the record straight with respect to a variety of matters that Applicants believe have been improperly or unfairly dealt with by BNL. This response, alluded to in the Board Conclusions below, does not materially alter j our thinking.

Response of the Commonwealth of Massachusetts  ;

' l v -

In support of its response to Applicants' motion, the Commonwealth sub-mitted the affidavit of Steven C. Sholly and the joint affidavit of Sholly and Dr. Gordon R. Thompson. The fonmer affidavit discusses numerous perceived

., , faults associated with materials accompanying Applicants' motion. The thrust s >

of each of these faults is summarized; the latter affidavit is not directly relevant to Applicants' motion.

- * (1) Acts of Terrorism and Sabotage -It is noted that Applicants have not explicitly addressed such acts either in their motion or in previously

~

submitted accident analysis submittals, since worst-case accidents can be avoided or accommodated without regard to how initiated. The

', point is made that the analyses of accidents provide a blueprint for defeating plant protective measures on a detailed, plant-specific basis. The fact that history provides little precedence for concern is no basis for apathy about what the future may. bring.

(2) Event V Modeling - Event V is the WASH 1400 analog of a LOCA

. - . (loss-of-coolant accident) initiated by the failure of valves separating

, . the reactor coolant system from the RHR (residual heat removal)

,,e "

t, ,.

.' . . t ,

system. Event V is also referred to as an interfacing LOCA event; the 336

4 ',

affidavit says that steam generator tube rupture (SGTR) is another example of this class of sequences. Affiant states the belief that the 1" ,

/ ,, ,.

• frequency of occurrence of event V sequences is significantly higher

,' than estimated by Applicants. Overreliance on Bayesian methodology j' ,'

. .,(

results and on prompt and proper operator actions are cited as bases p '7 - ,.', . . ,

W q. . , j , 7 s

for this belief.  ;

T '; ,. . v , .,' . (3) SGTR Scenarios - Two parts of the affidavit that treat steam gen- '

g 3. .[ .,g@ . .e.- ,/ ^ " ~ , . + , . erator accidents are combined here. Frequencies of various accident 7.g . .

3 .. 1; scenarios are discussed along with impacts of station blackout as-

-f

} sumptions. The consequences of updated source-term considerations

/ ,., /,. ' [2d.1. J V; .' ,.. -

s  : I are imposed, leading affiant to conclude that there is the potential for s

more serious risk consequences than postulated by Applicants.

7.2 ,.'i Q 77 - ' ;. ,

• 2 i

- (4) Seismic Sequences - Affiant states that seismic events involving large

. ' . f 'M ,

, - -l .

a; . , - ?t *i .

ground accelerations (initial event, perhaps followed by strong after-

i! '

shocks) can degrade the efficacy of emergency plan implementation, increase the likelihood of earlier-than-expected containment failure, and degrade operator performance. Affiant believes that a more de-tailed review of such matters than currently exists is necessary to

- assess seismic event impacts.

(5) High-Pressure Core Melt Modeling - Affiant cites Sandia experi-mental studies for the proposition that Applicants' characterization of the behavior of core debris ejected from the reactor vessel may be

+ incorrect. In particular, he states that dissolved gases in the core melt

' - and the production of acrosols by the melt ejection process can lead to containment pressurization and direct containment heating, presenting

y J,  ;

the potential for early containment failure and higher-than-anticipated radioactivity release, matters that Applicants have not adequately con-sidered. Affiant expresses his disagreement with Applicants and BNL

,

• N'. ' . 5

> ?,'. ^

'. that such phenomena cannot cause the Seabrook containment to fail or at worst to fail at a very low probability.

(6) Containment Pressure Failure - In essence, the affidavit builds upon

' ' the above considerations and leads to the possibility that containment integrity may not be adequate for containment pressure loads derived

- ,C .h . ,. .. 'c from phenomena noted in the above item.

~ .c . . - ',

(7) Steam Explosions - Work done by others (e.g., UKAEA and Sandia) convinces affiant that there is substantial uncertainty over the proba.

/j- , ' ' .,

bility of containment failure due to in-vessel steam explosions (termed

/, '

an alpha mode failure). This is taken to indicate that an alpha-mode failure cannot be ignored in the context of PEPZ distances,

.- j ,

• *~ (8) Iodine Behavior - Two parts of the affidavit dealing with iodine f .. .. ,

are combined in this summary. Affiant suggests that the following

' c'g "'.Y '

y% e . c.7-. ? .,-

' ' .,. . . , i possibilities concerning iodine behavior can be important:

,q. _

t 337 t

y y i *

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i' s

• The formation of volatile, organic iodine within the containment '

.f., i , ,

,'o  ; j;, ,

might impact environmental releases depending upon containment spray behavior and integrity of the containment itself; 7, .,, , ;,ji,.. '!: . .i ' _. a . Sandia experiments. indicate the possibility that cesium iodide

!y

y '; A., ( ( a. $

W j (the chemical form dealt with by Applicants in their accident I

' ', g; y,; m ; ^ .. 7 4 analyses) may dissociate into elemental iodine and permit HI i

. f,. ' >. 4 . g . W ,5. ,i ;

. fi and HOI to dominate under the influence of gamma radiation in

1. ,; ,g,X'L/S?.'.,}gW,*j , ,d d. 4 ,9, r

. .s I.

the pressure vessel containment envelope and of hydrogen burns, i

thus behaving quite differently than CsI; and, i..' i, ' ,7" 3 k. ;p. ~. ..W, ., ' , . t , Late containment failures can provide an opportunity for tellu-

/ K . , ,, 9,;%i ?1 CD 1~ ', C, ' .. # ,

rium 132 (78 hour9.027778e-4 days <br />0.0217 hours <br />1.289683e-4 weeks <br />2.9679e-5 months <br /> halflife) to decay to iodine 132 (2.3-hour

, ,s half life) leading to the possibility of gamma radiation exposure aI (.t y. ' Q;ql? *

] not being adequately considered. -

. e. /;,.V' . . ' ' . 7, i-  ? (9) Aerosol. Behavior - Citing no bases to suppon his thesis, affiant

.' ,,a .

, ,J -

.. .- > . . :. - N,-

postulates that deposited fission product aemsols might as the result

. ,+

z . ;i of chemical or mechanical disturbances reevolve for release to the

, Eq environment, and give rise to higher-than-anticipated source-term

~

'. , . j estimates.

t (10) Accidents During Shutdown - Citing prior assessments of this cat-egory of accident as being restricted to internal events leading to a shutdown accident, affiant states that external events, especially

' earthquakes, should be considered for cold shutdown accidents, when containment isolation is not required. A study of the Sequoyah plant

., j by Science Applications, Inc., is criticized for not having considered y; -. ', '

p j quakes larger than the safe shutdown earthquake. Af6 ant states that a full consideration of seismic initiating events is required in order to

, j perform a complete cold shutdown risk analysis.

(11) De Inerting Burns - ne affidavit states that when A/C power n, , f pg

., e -

. . ', , , and/or containment sprays are appropriately recovered during an

,' N - .

,' 6 . ..

" I ; '. accident sequence, Applicants treat the accident as being benignly terminated. The potential for high concentrations of oxygen and hydrogen in the containment if containment spray is recovered several

/ hours after reactor vessel failure is said not to have been considered

,g ,, n  !

"' ' ' by Applicants. Rus, affiant states that there is the potential for

' a hydrogen burn; and if containment integrity is not maintained

..2'",,..

^'

f- ~

i indefinitely, risks could be understated.

(12) Accident Behavior of Secondary Containment - Characterir.ing the

,y ' t . .f ' " ' -

Seabrook containment enclosure (secondary containment) as having

< f, f'c _,/.  !

c. ,

a low pressure capacity, affiant states that this enclosure offers little

,.' .i l

radioactivity mitigation from a severe accident in which primary

)'. ,,

jt containment integrity is lost. At best, it might offer the advantage of a

, - ."n"

,m 'f. ,

'+f . . ; ',j<

4

l[m  ; m[, ,

4

, y ,:p:.  ;<: more elevated release point than would otherwise be the case. Lacking

c. >-

s S 6 338 4

a

+

b

l l

t a steel liner such as exists in the primary containment and having a i low pressure capability give the secondary containment little merit

- ', t during severe accidents.

^

7, ' ....- ,

i.

(13) Peer Review - Affiant states that in the circumstances under wnich it was performed, it was impossible for the peer review group to 1' e ..;. , , Z , ', -

, .j

',, .l .

have performed adequately in the face of such a complexiy of

, s.

, ' , , , , $.' b.,"J. .....;_," . l, ' , d considerations and time constraints before them. He also questions e'l the independence of the reviewers. Affiant further notes that despite

. q, 7,b'i'.y .

, . 3 ,w. ,';. f *.jo*

j g .; i the importance placed on containment strength by Applicants, none

% - 2.w. ;.: r.- of the reviewers is a structural engineer.

, c. . ..%~ 3 - la s

t , g v .. a u..

.. , '

• o ': eg.', c 3 (14) Consequence Modeling - Affiant devotes two separate discussions to the thesis that the risk consequences of a severe accident at Seabrook l

4,. c y T ,, , ; ' . 4

! a 'j

, .*' ' should not ignore the differences (for the same accident sequence) that

' ~ ' ; g.Y.; ,

,j  : can arise from differing assumptions made foulifferent consequence

models. Specific references are made to the various codes employed

', s-' .c ,

4

, . ," i in justifying the reduction 6f the Seabrook PEPZ, with emphasis upon the extreme care that must be exercised in intercomparing results.

' - WJ

' ~

Affiant Sholly concludes that the PEPZ designation of 10 miles from NUREG-0396 was set in the face of numerous uncertainties and that Appil-

' ' cants' motion does not carry the day so far as justifying a significant reduction of that distance for Seabrook, because of considerations such as discussed above

I and the numerous uncertainties involved here also.

~

BOARD CONCLUSIONS Preface

, , y" ' ~ b$: i. .;,i Prior to our review of the Applicants' motion and the rei;ponses thereto, the

~' -

, , ] Board raises the following considerations:

4

• With respect to the TMI-2 accident, from the 1980 Rogovin report it appears that plant operating personnel could have lessened the

• 1. '

• severity of accident consequences by more rigidly adhering to proper

. procedures, and by being better prepared to interpret the significance of off-normal plant conditions:

'. - t . i

• Numerous incidents recently reported in NRC Information Notices

- , regarding licensed nuclear power plants attest to the thesis that there are instances of hardware components having safety significance that

have not on random demand performed in accordance with the design

- intent for those components (check valves, motor-operated valves, incorrect status readout in control room, and faulty instrument air

,e

.s< vJ ,e supply are typical examples);

.<- .,t -

• *i e sf ;g,, . ., ,, .<, ,. ., ;

.s. - c- ,

339

J

• Although Applicants state that advancements in the understanding of source-term behavior have not been taken into account, there are prior source-term reassessment analyses that cause us to ques-tion whether such an omission represents a potential for error in

,, - . the analyses of accident consequences and containment performance

. k ": - - -

i

, , that might u!Limately yield more-severe-than-anticipated environmen ,

t

^

tal consequences (fission product behavior and transport within the 4

' m' , , reactor containment envelope, core-concrete interactions, and aerosol E '

formation and behavior are a few of the phenomena about which 1 .

.]; possibly significant uncertainties remain);

. .c . . ,

- - . L, +

, 'i . It would be instructive to know whether, at TMI 2, after-the-fact eval-O 1 uations of containment performance and offsite risks would lead to

' ~

.. i the conclusion that a 1-mile PEPZ for TMI-2 would have been equally 4 -

1 as appmpriate, technically, as Applicants conclude for Seabrook.

f

, Our subsequent review of Applicants' motion has uncovered little basis for I *

.! confidence that measures have been or will be taken to ensure that no larger-than-q anticipated environmental consequences will result from the first three of the above considerations. Without more specific information from Applicants than is currently before us, the above e aiderations place in question the sufficiency of Applicants' justification for a .sction of the PEPZ to 1 mile.

1 Conclusions

The providing of an in-depth and definitive assessment of the sufficiency of j

.  ; the technical merits of the materials Applicants have provided in support of '

., their motion to reduce the radius of the Seabrook Station PEPZ to 1 mile is a formidable and complex task. The Bond has not attempted a de novo review of these matters for such would be beyond the resources of time, personnel, and computational assistance available to ,u. Additionally, to do so would require significantly more in-depth information than is currently before us in the way of input assumptions, code and model ietails, and the actual computations leading to many results whose derivation, are only summarized. Rather, we have reviewed with considerable care the Ap,ilicants' materials including several

, references contained therein, and the responsa of others to those materials. The purpose of this review has been to gain a perspective about the technical merit of Applicants' justification for reducing the PEPl. and the depth, completeness, and credibility of that justification. As the Lyon Report (discussed above) acknowledges, Applicants have undertaken a very comprehensive investigation of nuclear power niant accidents and risk consequences specific to the Seabrook plant and site. We have reached the same conclusion.

~ We hve reen no basis that would cause us to conclude that there are errors in the results proffered by Applicants in support of their motion. On the 340

contrary, we believe that Applicants have made a good-faith effort to support

.. their motion. Nevertheless, there are a number of areas wherein it appears that Applicants have not presented full and complete results sufficient to inspire

+

l, y confidence that their motion deserves further consideration at this time. We

,' < p ,j identify several of these now, in no particular order of priority or importance.

w Containment Strength - Superior strength of the Seabrook contain-s

,7 ; , ,

ment is a major factor underlying Applicants' position. Given that the

, , '. ,f .

, I ! .4 t

design strength is as Applicants conclude it to be, the as-built strength 5 '

,. . ' :1 may be less than designed. The Board is unable to dfscover a basis for 7.+ ,, ,,. ' ' ,T -

p}

-1,-[%{G

.';m.j 7

.y .y!

believing that this is not the case.

Source-Term Behavior - Post-WASH 1400 reassessments of ra-y;. t'

Yj?

f, s -.n ; ;;.,,, bioactivity behavior make it unclear that the use of WASH 1400 source-term methodology is categorically conservative. For example, iodine be-i- ~

'y, .1 havior, fission product reevolution potential, and aerosol. formation and transport may be influenced by the specifics of accident sequences, as-i s' .j sociated chemical dynamics, and the influence of radiation fields. We 1 are not aware that such matters have been given adequate consideration.

Operator Reliability - Numerous Seabrook accident sequences have identified certain plant operator actions to be taken to mitigate the conse-quences of an accident in progress, and in sevemi instances Applicants state that such actions are being or have been incorporated into plant operating procedures. Absent an understanding of how well operator

.l training prepares operators to recognize off-normal plant conditions, to assess the urgency of following special procedures, and to execute the d proper actions, the Board is left in doubt that accident mitigation requir-

- i 4 ing appmpriately prompt and/or proper operator response will always be j safely carried out.

Equipment Malfunction -Included here is the possibility that certain q

~

u equipment, although performing as desired, will not have its status correctly displayed to operators. The possibility that certain equipment will not perform its intended function upon emergency or random demand cannot be overlooked. This is not to say that Applicants have

~ -

overlooked such matters. However, a detailed analysis of preoperational

' and in-service testing and maintenance to minimize or prevent such

'~ j occurrences is not before us for evaluation.

Accident Analyses - Apart from the preceding comments, the Ner/-

berry afSdavit, the Lyon Report, and the Sholly Affidavit discuss a vari-ety of accident sequence analyses and their resulting risk consequences

, that have been treated in a manner that raises questions about the com-parability of input assumptions, differing computational approaches, and the propagation of uncertainties associated with risk results. In Appli-

.,n ,,;/ " .;

'. f . ~

.,w c  %..,.  ;

cants' response to the BNL draft report A 3852 (submitted as an en-9 341

y

• closure to NYN-87-002, a letter from PSNH to V. Nerses of the NRC Staff, January 20,1987), Applicants explain that many of these matters, l'. '

• at least as commented upon by Brookhaven, reflect variances of per-

' l' a 1, ' , ' a' ,

spective, questionable selections of experience with component failures,

. , ' i ' * ,' .. , . , l ';. J, . ' V ^ ' ' i , ' -

imperfect understanding of details of the Seabrook design, etc. When y . ' ' ' e.- ..j f?, q. ,-[ .

placed in proper context, say Applicants, the BNL objections lose their

. . i, ,.S.> . ., f. . i y s,a n, , p. g,',.;, , -

significance.

j'.?_ ; I ' .' '7,i ,fM. 43 v g , .

Accidents During Shutdown - In discussing this topic, the New-M.7," *Ff ,$il6,[, ' ..j.

berry af6 davit notes Applicants' assertion that the time interval between 7 3 p,.c. '

.c g y ],d shutdown and an accident during shutdown provides time for the de-D J [ h .1 .

J , ' .. ( ; 3 :

fW J ' 7..j cay of fission products, thr.s reducing the decay heat generation in the

'. ) d'W . ,

/ . ,i ' core. While this is a valid observation, the Board has not found where

' '. -t / ; g, , ,,' .. .,: ',' consideration' has been given to the possibility that an accident during

/' :.;)'

.. , t y+ 9 3 shutdown might restore the fission product inventory to a level unaccept-3 4 .<^ . *

• _ .; able in terms of risk consequences.

4 3

,,y '%~ SGTR Events - Newberry, Theofanous, and Lyon offer a consensus .

~ ,

of concerns regarding this matter that has not adequately, as yet, been

. laid to rest by Applicants.

He foregoing items provide a sampling of topics that causes this Board to

' conclude that it would be premature to recommend to the Commission, at this

,. time, that further consideration should be given to Applicants' motion. We do not

. -1 take a position that a 1-mile PEPZ for the Seabrook Station is unjustifiable: only -

that Applicams and Staff need more time to determine convincingly whether it is. His is especially important since the Seabrook Station has not yet operated

., e' ,

, .vv

.. , t'} and its operaticaal and maintenance organizations have had no opportunity to e d 9 r- '

g

"[ .' [ ' ..

, . * *, l

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-1

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, 3 i

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46

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, 342

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- . establish a team effort track record. Accordingly, we conclude that Applicants' Instant petition does not provide a primafacie showing on its technical merits.

IT IS SO ORDERED.

7, . . .. s, . , ,

i'_

W .

1 THE ATOMIC SAFETY AND LICENSING BOARD t

s:

. ', j l' .,.

Helen F. Hoyt, Chairperson

. ,; j ', , - .s,.

ADMINISTRATIVE JUDGE

. , .. ]

. 1. .

', ~

'i ' Gustave A. Linenberger, Jr.

ADMINISTRATIVE JUDGE n

Dr. Jerry Harbour ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 22nd day of April 1987.

APPENDIX A

, d (Documents Relied upon by Applicants)

1. Seabrook Station Risk Management and Emergency Planning Study, PLG-0432 (1985).

2. Seabrook Station Emergency Planning Sensitivity Study (SSEPSS).

3. Affidavit of Karl N. Fleming.

- 4. Affidavit of Dr. Alfred Torri.

5. Affidavit of Robert J. Lutz.

. 6. Affidavit of Dr. Robert E. Henry.

.' 7. Affidavit of Keith Woodard.

- 8. Letter of Robert J. Budnitz of Novemb'er 9,1985, to New Hampshire Yankee Division of PLblic Service Company of New Hampshire.

9. I.etter of Dr. Robert J. Budnitz of January 17,1986, to New Hampshire Yankee Division of Public Service Company of New Hampshire.

10. Affidavit of Dr. Robert J. Budnitz.

11. Affidavit of Dr. David C. Aldrich.

12. Affidavit of Dr. Joseph M. Hendrie.

13. Affidavit of Dr. Norman C. Rasmussen.

' '~~ ' * ' ' '

14. AfSdavit of Dr. Robert L. Ritzman.

4 343

i n - -

s s \

> g l

l 1 . ,,

j. . d y

. . A s s

15. Affidavit of Dr. William R. Stratton. , >.

. .a : -

16. Af6 davit of Dr. Richard Wilson.

'J-

. 1 17. Licensing Aspects of the Seabrook Emergency Planning Zone Study, g

l.e ' . !

YAEC-1502, Yankee Atomic Electric Co. (1985).

,,~J' 4,,',, ~ . - 18. Affidavit of Dr. Shengdar I ee.

',o . -] 19. Affidavit of Peter S. Littlefield.

.,. . ..,.y,-..- n . .- ' -.I r-4

20. Affidavit of John G. Robinson.

<J- - .

. . .' .-. -<- . . u. -

3.,,_-

e ",) .J e ,,

o 3

. y .' . . t . ..,

., .~ ,

.?,q , rf,. , .., , ;. y.,.. . APPENDIX B

^

,, , .~.

': . J. ,

j f , "' ,

- ,-- (Documents Relied upon by Commonwealth of Massachusetts) 2;

. . r, . 4 . . . .g' / .J' 1. Affidavit of Steven C. Sholly, y.t ..

, .4 - .-

l 2. Affidavit of Gordon Thompson.'. ,.

...,, . , .i Attachment 1 - Resume for G<rdon Thompson.

, .y..

Attachment 2 - Some Comtrints on Recent Studies Sponsored

• =

)

by Public Service Company of New Hampshire, J

, Regarding Platming at the Seabrook Nuclear Plant.

Attachment 3 w Tae SSurce Term Debate - A Report by the Union of Conce-ud Scientists.

.. 3. Affidavit'of Dr. Joti R. Primack.

I f

i

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Adm.inis  ::. trat.ive Law Judge. - ,

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)

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. Cite as 25 NRC 345 (1987) ALJ-87 3 1

- s <.

UNITED STATES OF AMERICA J. .

NUCLEAR REGULATORY COMMISSION

~ . .. " .' , -

/ - ,;

, - l [." a Before Administrative Law Judgo:

-f..- . . h* , /..

~

l .

- . , ' Morton B. Margulles

' f,,'

.' , in the Matter of Docket No. 50 289-CH

,! (ASLBP No. 85 514 CLOT) 3' GENERAL PUBLIC UTILITIES j NUCLEAR CORPORATION (Three Mlle Island Nuclear Station, Unit 1) April 2,487 i

The Administrative Law Jcdge fmds that a license condition imposed as part of the Appeal Board's decip.cn on management re nted issues in the Three

- Mile Island, Unit I restart priceeding, ALAB-772,19 NRC 1193,1224 (1984) should not be vacated. The condition barred an employee or the Licensee from supervisory responsibilities in the training of nonlicensed personnel at l

. the plant. This Initial Decision holds that the employee's conduct and attitude )

toward the NRC regulatory process require that he not be permitted to serve in

- a supervisory position that affects public health and safety. j The Judge notes that Commission regulations do not address qualifications for l the position in question, Supervisor, Nonlicensed Operator Training. However.

I where the holder of that position may adversely affect public health and safety

.- because of attittides and behavior toward the NRC and the regulamry process, the Commission can take necessary action that will provide reemable assurance

^

that the activities authorized by the operating license will be conducted without endangering the health and saf:ty cf the public. This is so even if the result is

- - to disqu'.lify an individual from being employed in a particular category. (

- - i The Judge turtner finds that the imposition of the condition was not done as a sanction, nor is its purpo>e to forever bar the employce from that position. It was done as a matter of providing reasonable assurance for the protection of I public health and safety. The employee can regain the subject position. if he

• • , demonstrates that he is so qudified to meet its requirements.

e

, 345

. p * ,

,t . .

L a

1

• < < ]

l l

.' APPEARANCES

.i .

George E. Johnson, Esq., Bethesda, Magland, for the Nuclear Regulatory

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Commission Staff.

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' ' ' Louise Bradford, Harrisburg, Pennsylvania, for Intervenor Three Mile Island o,

j Alert, Inc.

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,[ Deborah B. Bauser and Scott E. Barat, Esgs., Shaw, Pittman, Potts &

5 v ' Trowbridge, Washington, D.C., for Intervenor GPU Nuclear Corporation.

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• Michael W. Maupin and Maria C. Hensley, Esqs., Hunton & Williams,

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Richmond, Virginia, for Charles Husted.

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- - INITIAL DECISION L PROCEDURAL HISTORY AND BACKGROUND

. This proceeding was instituted by the Commission on September 5,1985, to provide a hearing for Mr. Charles Husted, a former licensed operator and licensed operator instructor at the Three Mile Island Nuclear Station (TMI). The i

purpose is to determine whether a license condition imposed as part of the Appeal Board's decision on management related issues in the Three Mile Island, Unit 1 (TMI 1), restart proceeding, ALAB 772,19 NRC 1193,1224 (1984), should be vacated. This condition barred Mr. Husted from supervisory

.; ', ,' i' "I responsibilities in the training of nonlicensed personnel at the plant. This Initial Decision finds that Mr. Hnsted's conduct and attitude disqualify him from such

- . a position and th4t the condition imposed by the Appeal Board shall not be 4

nud.

'Ihis matter evolved from examinations administered by the Commission at

'IMI in April 1981, which tested thirty-six individuals seeking NRC reactor operator and senior reactor operator licenses. Evidence of cheating by individuals taking the ex iminations was subsequently disclosed. Mr. Husted was interviewed twice in the course of the NRC's investigation of the matter.

The Licensing Board in the TMI 1 restart proceeding determined to reopen the phase of the proceeding pertaining to the quality of the Licensee's manage-ment and its operating personnel. It appointed a Special Master to preside over e  : a hearing on the rehtionship between information developed about cheating on

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j the April 1981 NRC operator licensing examinations and the management issues

1. . previously considered or left open by the Licensing Board. Metropohtan Edison l~, ,

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l Co. (Three Mile Island Nuclear Station, Unit 1) (TMI1 Restart), LBP-82-56, 16 NRC 281,287 88 (1982).

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. Mr. Husted appeared as a witness before the Special Master. He was not a

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.i party to the restart proceeding, nor was he represented by individual counsel during the time that the restart proceeding worked its way through to review

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- . by the Appeal Board. The Special Master found that Mr. Husted refused to

, cooperate with the NRC investigation, had displayed an attitude toward the

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^~, j investigators and the hearing that was unacceptable, and had solicited an answer V0' '; ,- - U during the examination from another person taking the examination. After noting

, , . . .' O that he was without guidelines, the Special Master determmed that he could not

, , d conclude that Mr. Husted should be removed from his licensed duties but that a lesser sanction would be appropriate. He made no recommendation regarding

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the lesser sanction because he did not have the information necessary to make

-s such a determination. TMI-I Restart, LBP-82 34B,15 NRC 918,957-61,1045-

- ,', 46 (1982).

After considering the Special Master's report, the Licensing Board concluded that there was no reliable evidence that Mr. Husted cheated on the examina-

- tion. However, the Licensing Board concluded that Mr. Husted had refused to cooperate with NRC investigators, that he continued to withhold information within his knowledge, and that he had provided unbelievable testimony at the hearing. The Licensing Board questioned whether Mr. Husted is able, or, if able, willing to impart a sense of seriousness and responsibility to the TMI opera-tors. It then concluded that certain changes be made in the Licensee's training program including the establishment of criteria for the qualifications of training instructors and the auditing of training at the point of delivery. No direct sanc.

tion was imposed on Mr. Husted, but the Licensing Board recommended that

. '. his qualifications and delivery performance receive particular attention during

- , a review of the TMI training program. TMI 1 Restart, LBP-82-56,16 NRC at 315-20 (1982).

During the pendency of appeals of the Licensing Board decision, the Licensee (now GPU Nuclear Corporation as successor to Metropolitan Edison Company)

, reached a stipulation with the Commonwealth of Pennsylvania, a party to the

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restart proceeding. The Commonwealth withdrew its appeal and GPU Nuclear s .* ,

, Corporation agreed not to employ Mr. Husted at any time in the future to operate

< TMI or to train operator license holders or trainees. TMI-1 Restart, ALAB-772,

. 19 NRC 1193,1201 n.1,1213,1222 (1984).

- In its review of the Licensing Board decision, the Appeal Board found that  ;

' l. a the record supported the conclusions of the Special Master and the Licensing {

' Board about Mr. Husted's poor attitude toward his responsibilities as reflected in j

,- .. his failure to cooperate with the NRC investigators. However, the Appeal Board j 3 '

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.,- ',,. disagreed with the Licensing Board on how to view Mr. Husted's attitude toward  !

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, his teaching responsibilities. The Appeal Board stated that where so much of the 347

training information to be conveyed concerns the need to comply with proper procedures, the instructor's attitude toward (i.e., respect) for these procedures, becomes an integral part of the instructor's ability to teach. Id. at 122124 ne Appeal Board noted that although the stipulation between the Licensee

. and the Commonwealth of Pennsylvania would prohibit Mr. Husted from training licensed operators, Mr. Husted had been promoted to Supervisor, Nonlicensed Operator 'Daining. This promotion placed him in a position to instruct personnel

.' i* with important duties that affect the public health and safety and that have

.  :< .,' l important management responsibilities. The notice of the promotion was given

- . L to the Appeal Board in May 1983. The Appeal Board questioned the Licensee's l judgment in promoting Mr. Husted. It thereupon required that Mr. Husted have l no supervisory responsibilities insofar as the training of nonlicensed personnel

. . is concerned. Id.

, . He Commission took review of whether the Appeal Board had the legal au-thority to impose on a licensee a condition that in effect operates as a sanction against an individual, where that individual is not a party to the proceeding and has had no notice of a possible sanction or the opportunity to request a hear-ing. After examining the statutory and constitutional issues raised, the Commis-sion elected not to decide them. Instead, it granted Mr. Husted the opportunity to request a hearing on whether the Appeal Board's condition barring him from supervisory responsibilities insofar as the training of nonlicensed personnel is concerned should be vacated. The Commission further determined that the Ap-peal Board's condition should not remain in effect during the pendency of any requested hearing. TMI 1 Restart, CLI-85 2,21 NRC 282,314-17 (1985).

Mr. Husted requested a hearing on March 25,1985, not only on the Appeal Board condition, but also on whether he "is barred by concerns about his attitude

, or integrity from serving as an NRC licensed operator, a licensed operator instructor or training supervisor." Notice of Hearing 50 Fed. Reg. 37,098 (1985).

The Commission granted Mr. Husted's request to expand the scope of the

, issues, finding that whether Mr. Husted should hold any of the jobs in question

, would focus on the same four concerns:

' . (1) the alleged solicitation of an answer to an exam question frorn another operator dering the April 1981, NRC wrinen examination; (2) his ladc of cooperation with NRC investigators; (3) the lack of forthrightness of Mr. Ilusted's tesnmany before the Special Master. and (4) his poor aldtude toward the heanng on the cheadng incidents.

Id.

While expanding the scope of the hearing, as requested, the Commission also i acknowledged "the rights of the panies to [the] Stipulation" that bars Mr. Husted from operating TMl and from training operating license holders or trainees. The Commission noted that should Mr. Husted be able to demonstrate his fitness 348

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, .. +. '. . for the positions at issue, he could raise the matter of the Sdpulation with GPU Nuclear Corporation and the Commonwealth of Pennsylvania. Id.

ne Commission assigned NRC Staff the role of participating as a party

., . 4 to ensure that the record is fully developed. It also invited petitions to inter-vene. Id. After pub!! cation of the Notice of Hearing and the appointment of

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this Administrative Law Judge to preside, both GPU Nuclear Corporation (GPU

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';,* Nuclear) and Bree Mile Island Alert. Inc. (TMIA) petitioned to intervene in the s proceeding, and were admitted as parties. Memorandum and Order, December

.,.. ~c, ) 6,1985 (unpublished).

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! An initial prehearing conference was held in Harrisburg, Pennsylvania, on

February 19,1986, to discuss various procedural matters. A Report and Order

,-  : ,. ,- .',. on Initial Prehearing Conference was issued February 27,1986, which admitted, 1 * - -

ss rephrased, the two contentions proffered by TMIA. These are:

1. De Appeal Board's condition barring Charles Husted from supervisory responsi.

s bilities insofar as the training of nonlicensed personnel is concerned should not be

. 5 vacated by reason of his demonstrated bad attitude and lack of integrity.

2. Husted should be barred from serving as an NRC-licensed operator or licensed operator instructor or training supervisor by reason of his demonstrated bad attitude

, and lack of integrity.

GPU Nuclear's single contention also was admitted. It provides:

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. he conduct and attitude of Otarles Husted with which GPU is familiar indicates that the

, NRC should not disquatify Mr. Husted from serving as an NRC. licensed operator or an instructor of ticensed or nonlicensed personnel.

. . The Notice tf Hearing did not readily place this hearing in the format of

! a typical proceeding. Given that Mr. Husted was faced with the imposition of s - . the equivalent of an agency sanction, I determined that the proceedmg is most 4 like a hearing in a proposed enforcement action. It was also determined that t

,. the proceeding required the development of a new record through a hearing de

. . , , novo. Report and Order on Initial Prehearing Conference, February 17, 1986 (unpublished), at 7.

, The NRC Staff's (Staff) role was ultimately defined as to go forward with

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the presentation of a record on which the Appeal Board's condition might be judged. I further ruled that Mr. Husted had no initial burden to go forward and no burden of persuasion on the matters at issue in this enforcement type of

. . proceeding. Ruling on Staff Objections to Prehearing Conference Order, March

, 26,1986, at 4. Staff was also required to make known to the participants, no

. later than 7 days prior to the commencement of the hearing, its position as to l

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. whether or not the condition imposed in ALAB-772 should be vacated. This

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349

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- requirement was to enable the conduct of the hearing in accordance with the

. . . administrative process. Id. at 5-6.

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in addition to the four factual matters directed to be considered by the Notice y**

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.,,'. of Hearing, previously referred to on page 348, I requested that the following questions would also be considered. ,

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What does Mr. Hunted's performance of his responsibilities with GPU Nuclear reflect about l

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his attitude and integrity? l i

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' I In light of the answers to the four factual mauers directed to be considered by the Notice of i

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,. ,] ', s Hearing and the above question,is any remedial action required with respect to Mr. Husted?

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• If remedial action is required, what is it?

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5' - Report and Order on Initial Prehearing Conference, February 27,1986, at

. . 11.

I also determined that in addition to providing Mr. Husted with an opportunity to demonstrate his fitness for the positibn at issue and for a hearing de novo, the Commission Notice permitted me to consider evidence bearing on Mr. Husted's qualifications to be employed in the job in question, without limitation as to the time frame. Id. at 5.

Finally, I determined it was appropriate to address, in the course of the proceeding, the question as to the standards to be applied in determining whether

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• Mr. Husted should be barred from any of the positions under consideration. Id. at 11.

l A final prehearing conference was held on May 20,1986, in Harrisburg, in

> which various determinations were made regarding the pmcedures and order

"'for the presentation of evidence at the hearing.5 Report and Order on Final Prehearing Conference, May 27,1986.

• On June 12,1986, the Staff gave notice in advance of the hearing that its position was that the Appeal Board condition imposed in ALAB 772 should be

- . vacated. Hearings were conducted in Harrisburg on June 23 26, and on July 1

. 1986, when the record was closed. I heard testimony from five witnesses called by the Staff, six witnesses called by Mr. Husted, including Mr. Husted, and one witness, a former GPU Nuclear employee, subpoenaed on behalf of TMIA.

. At the conclusion of the hearing, I directed that proposed findings of fact y and conclusions of law be served in hand by August 18,1986, with replies due e

. IPnor to each preheanng conference. the pamos met and discussed the numerous and someumes difficult pmcedural issues relatmg to tlus somewhat unusual proceedmg. In each instance, a memorandum covenna

• the pames' consuicrauon of these mauers, seumg for.h their agmemems (and disagreements) as well as

, ,, recommendations to the Judge, was prepared by counsel for Mr. Husted and subnuued in advance of the s . 6

• conference. The parues' effons in this regard measurably advanced the focusms and resoluticri of procedural

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n hand by September 8,1986. The parties were requested to address the seven'

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. concerns identified (see above). In addition the parties were directed to address:

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. - s l' . , [' *. . j ,*3 Whether the Appeal Board used an appropriate standard when it barred Mr. Ilusted's

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promotion based on Anding him lacking in the ability to communicate effectively a sense of

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. , , -i If so, did Mr. liusted fail to meet that standard?

,l ;j . * *- , '. f. l t..' ..'".7'+ . .  ; Assuming Mr.1-lusted failed to meet the standard, should he forever be barred from obtaining w!a'. < ' , ' ' .#' 'j ; .'. c ;, a the position that he held?

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,' ! Whether or not Mr. liusted met the standards of the Appeal Board previously, and does he

. ' meet them now?

,', What did Mr. Ilusted's actual appearance on the witness stand, testifying in this proceeding M -

demonstrate as to his forthrightness. attitude and integrity?

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' - - ..' * - Tr. 974-75 (Margulies, J.).

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. , i Timely filings of proposed findings of fact and conclusions of law were made by the parties. Replies were filed by Mr. Husted, Staff, and TMIA. It should be

. noted that all of the filings submitted by the parties have been considered and those proposed findings of fact and conclusions of law not incorporated directly i or inferentially in this Initial Decision are rejected as unsupported in fxt or law

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or are unnecessary to the rendering of this Decision.

II. FINDINGS OF FACT q

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,. .,  ; .] A. Did Mr. Ilusted Solicit an Answer to an Exam Question from

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• Mr. Janes During the April 1981 NRC Examination?

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1. From April 21 through April 24,1981, the NRC administered exami-

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' nations for reactor operator (RO) and senior reactor operator (SRO) licenses to

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. thirty six TMI employees. The examinations were given in connection with the i proposed restart of TMI. During the grading and review of the examinations in July 1981, it became apparent from similarities in answers that cheating had l

'.. . s 1 taken place. Husted Exh. 26 at 1.

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2. On April 24, 1981, David C. Janes, a shift foreman, had taken the

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SRO examination. The only other examince in the room for the examination was

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< , Charles Husted. From time to time an NRC proctor was also in the room. Janes.

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ff. Tr. 278, at 1.

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,' ) , . 3. As part of the NRC investigation into cheating involving parties other Z, . ; "[ ..p, ',i ( , 's., .. ' "/ . [a . : *,~

than Mr. Husted, William J. Ward, Chief of the Investigations Branch, Office

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of Inspection and Enforcement (OIE), and Peter E. Baci,2 Senior Investigator, interviewed Mr. Janes on September 25,1981. Tr.158 (Ward). ,

4. During the interview, Mr. Janes, then a shift superviser, expressed anger at the proctor's abs'ence from the examination. He stated he felt the

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- .. - proctor's absence made him vulnerable to an allegation of cheating. Ward, ff. Tr.140, Attach. 3. Because of Mr. Jancs' demeanor, Mr. Ward concluded

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that a solicitation had taken place or that Mr. Janes believed one had taken cv , .

place. Id. at 5. Mr. Ward testified that in order to get Mr. Janes to acknowledge what Mr. Ward suspected, he used an investigator's technique of asserting,

< without substantiating evidence, that the investigators knew that Mr. Husted had

<, 4 asked Mr. Janes a question. Id.; Baci, ff. Tr. 216, at 5-6.

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5. In December 1981, Mr. Ward testified before the Special Master that:

the reason you are so upset about this is that it puts you in an awkward position when llusted 4

asked you a question, and he looked stanled, and he started to hesitate. And I said somethmg

$ to the effect that we knew he had asked Ifac question, and he said well, he only asked one question and that was how the information came up . . lie related that it was just one attempt. lie could not remember specifically what it was, to my recollection. It was more like a certain concept was, well, what in the hell does this mean or words to that effect. And we Isicl he refused to answer it, no further questions were asked.

Ward, ff. Tr.140, Attach. 2, Tr. 25,462-63.

6. Earlier in his testimony before the Special Master, Mr. Ward said that Mr. Jancs' answer was somewhat ambiguous. Mr. Ward stated that Mr. Janes

. said that a fellow examince asked him a direct question on one occasion, but that he did not provide the answer, and that ended the situation at that point. Id.,

Tr. 25,316.

. 7. In his testimony at the current hearing, Mr. Ward reaffirmed the accuracy of his prior testimony. Ward, ff. Tr.140, at 4. Mr. Ward believed that

, Mr. Jancs provided truthful information in the September 1981 interview. Tr.151

. (Ward). Mr. Ward further testified that it was not clear to him cither at the time

• of the interview or at the time of his current testimony whether Mr. Husted's

, alleged utterance was an exclamation of concern over his inability to answer the question that he saw in front of him or whether it was actually a question directed s- to Mr. Janes. Tr.149 (Ward). Mr. Ward had the impression it was exclamatory

- in nature. Tr.163 (Ward). Mr. Ward explained that when in his tesumony the word solicitation was used it was meant that a question was asked. He said he q ,

was uncertain w hether er not an anmer was gr'cd Tr W Nard). Mr. Ward

, . e acreed that as time passed his recent rceollNtion was not as cicar as that closer

. , to the event. Tr.150 (Ward).

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i 2At the ume of the subject heanng. hir. Bact was Assistant Director. Deparunent of Derense Inspector General.

Derense Cnminal Invesugauve semce 352

8. Mr. Ward was the principal interrogator during the September 1981 7

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- interview. He kept no notes of the interview. A report of the interview was prepared by Mr. Ward and contained in a report of investigation dated October

. ( 13, 1981. It does not mention the discussion involving Mr. Husted. Ward,

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ff. Tr.140, Attach. 3, at 40-41; Tr.146 (Ward). The reason given for not mentioning the Husted incident was the investigation involved organized or

>' conspiratorial type cheating and management involvement and that Mr. Husted's

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. incident did not relate to those concerns. Ward, ff. Tr.140, at 5; Tr.142,192-93

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(Ward).

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'2 ,,- 9. Mr. Baci basically agreed with and confirmed the testimony of Mr.

Ward. Baci, ff. Tr. 214, at 3-4; Tr. 272 (Baci). Mr. Baci had appeared as the other member of the panel with Mr. Ward in testifying before the Special Master, O . .

but Mr. Ward spoke for the panel. Tr. 269 (Baci).

10. Mr. Baci testified that Mr. Janes could not recall the nature of the

< question asked by Mr. Husted. Mr. Baci believed Mr. Janes might have indicated it was a rhetorical question. Tr. 224 (Baci). Mr. Baci further testified that Mr. Janes " knew somebody said something, asked a question, but that is why 1 believe I indicated that it may have been a rhetorical question, you know, like, what the hell is this? Where did it come from?" Tr. 250 (Baci). He further elaborated that Mr. Janes could not characterize what was said as a solicitation or question. Somebody asked something which may have been like "what does

- this mean or what the hell is this." Tr. 267-68 (Baci).

11. Shift Supervisor Janes testified before the Special Master that Mr.

- Husted did not ask him anything about the examination and did not speak to

. him during the examination. Tr. 286 (Janes). Mr. Janes confirmed that testimony during the current hearing and stated he knew of no reason why Mr.. Ward would testify as he did about Mr. Husted asking him a question, other than by way of a misunderstanding. Janes, ff. Tr. 278, at 2-3.

12. Mr. Janes also testified before the Special Master that when he was being questioned by Mr. Baci, Mr. Ward broke in to state that Mr. Husted had solicited help. Mr. Janes said that before he could deal with Mr. Ward's

. incorrect statement, Mr. Baci asked another question, which Mr. Janes proceeded c to answer. He did not respond to Mr. Ward's statement, which was not in the form of a question. Id. at 3.

13. Mr. Janes further testified that in preparing for this hearing he recalled

,' . something being discussed during the September 25,1981 interview that may have some similarity to Mr. Ward's allegauon. /J. at 4. Mr. Janes stated that during the interview he was asked the hypothetical question of what he would have done if someone had asked him a question during the 1961 exam.2 4 ,. . x a

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' 3 1n tesufying on June 23. 1986 Mr. Ward derued that he aded Mr. Jancs any hypaheucal quesuan Tr. T1 (Ward).

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"' Mr. Janes stated that he told the investigators he would have refused to answer

. the question. He further testified that he was then asked what he would do if he l

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were asked such a question at that time (September 25,1981). Mr. Jancs stated

' r . that he replied it would just constitute an attempt, but because of what transpired

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', ,i * ', he would be very hostile to the person who asked the question. He also testified that at the end of the September 1981 interview he may have indicated to the l

J investigators that he had heard one or more groans or exclamations during the

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'. - ' examinations he took, as the peopic in the rooms read the exam. He stated that

, , , , , . >j he did not presently know nor did he think he knew on September 25,1981, '

.. who groaned or in which of the exams he took that the noises occurred. Id. at

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,., 5,

14 Mr. Jancs filed supplemental testimony which was placed in the

' record. He stated that on the basis of Mr. Baci's prefiled testimony, he concluded that he had in his own testimony reversed the identities of Mr. Ward and

• Mr. Baci. He further recollected that the first of the questions asked was, in 1 effect, "What would you have done if Chuck [Husted] had asked a question during the examT' Mr. Jancs believes he then said- "Only one question? I wouldn't answer."Id., Supp. Testimony at 1-2.  ;

15. In April 1981, Mr. Husted was a full-time instructor in Licensed l Operator Training and a holder of an SRO license. Husted, ff. Tr. 330, at 1. He testified before the Special Master that he did not solicit an answer and did

' not speak to Mr. Janes during the April 24, 1981 examination. Staff Exh. 2, l

- i Tr. 26,936-37. In the current hearing he reaffirmed his prior testimony and stated that he and Mr. Janes did not speak once the examination began. However, he stated that he did speak out loud at one point during the examination. Mr. Husted testified that he t.ad developed lesson plans for his students and had instructed I them in thermodynamics on the Rankine cycle, which is a practical or real

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• process. The question in the April 1981 SRO exam dealt with the Carnot cycle, which is a theoretical process. Mr. Husted said that when he came to the question

- ' - he realized he had not prepared the operators to answer the question.' He said he l

• was upset and said aloud words to the effect "What the hell is this?" He further

- testified that he did not direct the remark to anyone or mention the substance of the question that led to the exclamation. Id. at 4. Mr. Husted said he did not believe that which he considered a rhetorical statement was talking because it

, was not conversation. Tr. 339 (Husted).

16. The first ume Mr. Husted provided information to the NRC regard-

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ing this explanation was April 8,1986, in connection with the current hear.

' ' ing. Tr. 497-98 (Husted). He indicated this recollection came about inde-pendently, not as a result of reading testimony. Tr. 501 (Husted). When Mr.

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' Mr. Husted hanscif did not correctly answer the quesuon on the exammauon. Tr. 335 (Itusted).

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Husted was questioned by NRC investigators on July 29, 1981, regarding whether there was 21Hng in the examination room, Mr. Husted said no. He had stated that ".he classroom was quiet and the only disruptions were at timc3 1 .

proctors were aded to clarify questions. Husted Exh.1,'R. 338-39 (Husted).

, 17. In answer to a question from me as to whether he had testified before 2,. ,, , , .

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. the Special Master about the edase he n said he made, he testified that he l t '

had. '&. 346 (Husted). At that point, counsel for Mr. Husted indicated that his

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client may have inadvertently produced a couple of incorrect answers. Counsel s ' '. . ,

.,- - - ., asked permission to permit Mr. Husted to reread the transcript of his testimony 7' .. ." d i before the Special Master. Id. (Maupin). Pernussion was granted, and the follow-

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j ing day Mr. Husted testified that during the current hearmg he had incorrectly 1 stated that he mentioned his e d;maton before the Special Master. He emphim A

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that he had a hard time remembering when specific things happened in the past

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and that h was hard for him to place in a time frame something that occurred in 1981. 'R. 498 (Husted). Then, in response to a question from his counsel whether he was exammed before the Special Master on December 10, 1981, on cx>mments, unen=-ee or discussions with Mr. Janes, Mr. Husted replied not  ;

directly but that at one point he was asked if the examinees had agreed who would go to the proctor if they had come across an examination question that

. reded clarification. Mr. Husted then stated that he had testified, "no, we did not discuss anything during the exam." 'R. 495-96 (Husted). Mr. Husted did not menten the question posed to him that same day before the Special Master:

"Q. One of the NRC investigators has testified, as you know - that Mr. [ Janes) said that you aded him a question during the exam. Is that true?" Staff Exh. 2,

'R. 26S37.

18. Mr. Samuel Newton, Operator 'Ihunmg Manager, testified that when he first heard of the allegation that Mr. Husted had solicited an answer from r ,

. 4 Mr. Jancs, he spoke to Mr. Husted who denied it. Mr. Newton said he seems to recall he was told by Mr. Husted of the "What the hc8 does this mean?" remark,

. but he may have read about the comment elsewhere. Fewton, ff. '&. 836, at.

. 3. Ris testimony provided nothing dispositive.

Conchaion: There is no convincing evidence that Mr. Husted solicited an answer to an exam question from Mr. Janes during the April 1981 NRC examination.

19. I accept the Ward-Baci version of what h-pid when they inter-viewed Mr. Janes on September 25, 1981. It was helpful to have Mr. Ward clarify his prior statements and to have Mr. Baci testify. De essential facts de-

- - 4 rived from their interview were that they confronted Mr. Janes with a statement that Mr. Husted n*rd a question during the April 24, 1981 exammation; that 355

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Mr. Janes acknowledged that it had occurred; that the question tended to be in the nature of being rhetorical or an exclamation; and that Mr. Janes denied that he ever offered any response to the question. I believe the foregoing to have occurred when Mr. Janes was interviewed.

) *, ,' 'l .

20. The test! mony of Mr. Ward and Mr. Baci is found to be more

- accurate than that of Mr. Janes. The investigators basically corroborated each f

. . ': . t other's statements as to what transpired, and they are dispassionate observers Jy of what occurred. What they reported was of no consequence to their primary

. .(, ; ,; f.' 3

'.d;,, '

,. : ,j , investigation. It was because of this that no mention was made of the Husted discussion in the report of investigation. Nrther, their recounting of what i,,' ,

7~

' - 3 occurred became somewhat less focused with the passage of time, which l.f a c

( ,

is consistent with what usually occurs. This helped make their testimony pet. suasive.

. j, 21. Mr. Janes' version is one that continues to be refined as time passes.

.i * - 1 When testifying before the Special Master, he recounted that Mr. Ward inter-

- rupted questioning by Mr. Baci to state that Mr. Husted had solicited help and

- that before he could respond to the statement, Mr. Baci asked another question which Mr. Janes proceeded to answer. He said that he never did respond to Mr. Ward's statement. During this hearing Mr. Janes disclosed a recent recol-lection which was that he was asked hypothetical questions by the investigators as to how he would react if he were questioned by Mr. Husted. Mr. Janes then i testified what he stated his answers were. He ascribes to Mr. Ward a misun- l derstanding of his answers to the hypothetical questions as being the cause for l Mr. Ward stating that Mr. Husted asked him a question during the April 1981 examination.

22. The Ward.Baci version of what transpired is more credible than

• Mr. Janes' because the latter's recounting of his conversations with the inves-

.. . .< . tigators was not corroborated and he was far from being a dispassionate par-

~

' - > ticipant. Mr. Janes was angry during the interview: he misidentified his ques- )

' tioners. If there was any misunderstanding it was likely that of Mr. Janes. The investigators were asking the questions and if anyone knew if they were hy-pothetical, the investigators would have. Mr. Ward denied that a hypothetical question was asked. Mr. Janes had never previously testified about this precise recollection of hypothetical questions that deal with a subject that Mr. Janes did not indicate to be the subject of continuing discussion. Mr. Janes' recent

- recollection of what transpired, reported more than 4 years after the occurrence, is not convincing that the investigators had misunderstood what happened at the

" interview and that their testimony was incorrect.

. 23. If one accepts the Ward Baci description of what they were told, as tiue, it does not establish that Mr. Husted solicited an answer to an exam

,.' ', question. All that this hearsay establishes is that there was an utterance from

- Mr. Husted, in the form of a question that tended to be rhetorical or exclam-356

i I

1

'.< . . atory. It does not constitute proof that Mr. Husted solicited an answer to the

, . question and that he attempted to cheat on the examination. The evidence does E not justify such a conclusion.

l,' S- .' '3 24. In coming to the above decision, it is not necessary to look for

' ,. 1,[,[*U ' . - - . ,,

., corroboration to Mr. Husted's disclosure of what he says he said aloud during G , l f',.f. .. ~D '

. the examination. His statement that he said words to the effect "What the hell

, '6 .i l ','d is this?" was first made known to this agency's representative some 5 years

[ ', , 'j[) ' _ [ .

i after the event.s ne testimony was very precise as to what was said to have

'.' Wf' y. , ,', 3 . * ,., . ( - . ,g. l *{

f '

., -Q occurred. Because experience shows that human memories dim with time, one

- ;. v .i, . .

c .. ..

'] questions the meaning of such a specific exculpatory recollection by Mr. Husted,

' 6,' "< . f/ '4 y which was revealed just before the hearing and after the Licensing Board had

, ,C . f . 7 -

' ^

q found in its decision that the exclamatory words did not establish the alleged

.c; i.. . .q . >. >

j cheating.

. , t

.;1

'. B. Did Mr. Husted Fall to Cooperate with NRC Investigators?

a,'.,,,[ .

25. Charles Husted was first interviewed on July 29,1981, during the NRC i investigation into cheating on the April 1981 operator exams at TMI. The inter-view was conducted by OIE Investigators R. Keith Christopher and Raymond H. Smith. Baci, ff. Tr. 214, at 2, Attach. 2. Mr. Husted was accompanied by Paul G. Christman, Manager, Plant Administration, TMI.

26. De interview resulted in a summary being placed in the " Report of

}

Investigation - nree Mile Island Nuclear Generating Station, Unit 1/Investi-j gation of Alleged Cheating on Operator Licensing Examinations," August 11

.  ; 1981, at 39 (" August OIE Report"), Husted Exh,26, Baci, ff. 'IY. 214, Attach. 2.

- 27. The August OIE Report states, in pertinent part,

- i

]

[*'.g jN [Husted] was queried concerning the possibuity of reference material being covenly

- N + . I brought into the classroom by examinees. However, for unknown reasons, he dectined to respond to this question or explain his reluctance to discuss this issue. He was also asked whether any tumors of comments regarding instances of cheating on the exams had come to his attention. He acknowledged that he had heard rumors to this effect which he labeled

. as " unconfirmed hearssy." However, [Husted) refused to reveal any specines of the rumors he had heard or to identify the individuals (if named) who were allegedly impticated. Upon

• 1 '

, l further attempted questioning. [Husted) declared he could not recall anythms concerning what he had heard, e e

, e- q" ,

A

'.t 8 on bnef. staff's posman was that there did not appear to have been questionmg before the special Mamer that could wasonably have chcited that information. staff Proposed Findmss of Fsct and Conclusions of Law, August

• I 15.1986, at 18. h would not have been unreasonable for that information to have been pan of the response to the quesuon asked of Mr. Ilusted. "one of the NRC investigators has testified, as you know, that you asked -

tha. Mr. [ Janes] said that you asked hun a questica Junns the exam. Is that true?" Mr. Hustad's answer was.

(..g.J,+g . . . . . .

, ~,, "Apolutely ncL* staff Exh. 2 at Tr. 26.937. The informauan also could have come out in quesuoning by the

-B.,;i, . 'n',,,

• o Q 5 g

invematators on July 29,1981. when Mr. Husied testoried that the room was quast and the only disrupuans involved

,- .t 7, , * '. .

s 4

quesuons saked of the proctors.

1 g e

357 s

)

l Husted Exh. 26 at 39.

28. In this proceeding there was no Staff witness that could attest to the

, accuracy of the summary. Mr. Christopher could not~ recall the interview. He did not know who wrote up the summary. From the style of the summary, r Mr. Christopher assumed he did not write it. Tr. 384-99 (Christopher). His

- , testimony was wittiout worth. Mr. Smith was too ill to appear and never provided testimony. Tr. 402 (Johnson).

e ?

?

ij ~ ' ' 'l '

• 29. Another account of what transpired was contained in a more extensive j

^ '

summary prepared by Mr. Christman. It differed in several respects from the 4

August OIE summary and, as pertinent, stated:

, y ..? '

,.7 %q r ,

i

', )

' Mr. [Husted] was asked whether candidates are allowed to bring notebooks, pads of paper.

' ' '* tenbooks, etc. to the examination. Mr. [Huntedl did not answer this question. He was then  ;

', . i asked did anyone bring articles as described above to either examination. He responded a

that he could only answer for himself and that he did not bring such articles to the

- examinations. He did state that the one textbook that he recalled being available in the

, classroom was a set of Steam Tables.

eoe j He responded no when he was asked whether he had any knowledge of cheating. He refused to answer a question about whether he had heard any rumors or gossip in regards to cheating at the April examinations. When he was asked this question again, he answered that he cannot recall having heard any rumors or gossip in regard to cheating on the April examinations.

Husted Exh. I at 3.

. i 30. Although both reports indicate that Mr. Husted failed to answer the question about whether reference materials were brought into the examination i room, the Christman summary indicates that Mr. Husted subsequently did answer a slightly different question. 'Ihe August OIE Report does not record this answer

• at all. Husted, ff. Tr. 330, at 7-8, Husted Exh.1. Rather, the August OIE Report

• states that Mr. Husted declined to explain his reluctance to discuss this issue.

31. The Christman summary states that Mr. Husted initially refused to answer a question about rumors or gossip as to cheating on the April examina-tions. Then, according to Mr. Christman, when the question was asked again, he answered it, stating he could not recall any such rumors or gossip. The August

- OIE Report did not mention repeating the question. It stated that Mr. Husted acknowledged that he had heard rumors to that effect, which he labeled as

" unconfirmed hearsay." He refused to reveal the specifics of the rumors or to identify the individuals. The August OIE Report discussed the cheating in terms of"on the exams." The Christman summary spoke of the cheating "on the April examinations."

. 32. Mr. Christnun had accompanied Mr. Husted to the July 29, 1981 imerview for the purpose af representing the utility, to see that the rights of its employees were not undermined, r.nd to learn about the subject under

- t < ,

investigation. Tr. 365 (Christman). At this hearing Mr. Christman only had 9

358 2

4 I

i

• [

. i ,

the typewritten copy of his summary, which he believed to be accurate. If an item were not reported in the summary he considered it unlikely that it occurred. His summary did not report any discussion by Mr. Husted with

- l<. '- -

the investigators indicating that the questions were too broad in scope or that

. p , > , 's .-

,' ; *f ,

"'] he asked permission to decline to answer a question. He did not remember

, . c'. /'.'  ! W that occurring at all. 'IY. 377 80 (Christman). Mr. Christman also testihed

. f. ;# .- 4, ..

l4 [N#1 that if the term " unconfirmed hearsay" were used, it would have appeared in d

-( ( l." . j[- ,

c ., ' ] his report, which it had not. Mr. Christman considered Mr. Husted as being

, . :. . g; , ;., :;v 6.133,

• r ~ ! ".3 .l. cooperative overall with the investigators, taking into account his not answering Yh; s

g .; p "'. . j'.  ;, two questions initially. He'tlescribed the atmosphere of the interview as very My  : .

' i;. . id businesslike and tense. Mr. Christman testified that the summary was correct in

. ., M reporting that Mr. Husted had said, in regard to another area of inquiry, that

. .m 7-

P .]t he did not know whether the proctor had left the examination room. Tr. 380

• - '1

< . (Christman).

,l'- ..g  ; 33. Mr. Husted's second OIE interview occurred on September 18,1981.

..,  ;*,,, * ~ ,

. , q Matakas, ff. Tr. 406, Attach. 4 at 16. The only persons present were Mr. Husted and the interviewer, Richard Matakas. Id. Mr. Matakas is a senior investigator, with 17 years of investigative experiences The pertinent part of the interview is

, , set out in the report of investigation as follows:

[Husted] was asked to clarify what he meant by "uncon6rmed hearsay" in his previous

, 4 statement. He stated that he did hear one comment made during the time period of the

. -' NRC RO/SRO exams where someone (he did not recall who) said they saw someone (the unidentified person did not say who) passing papers in the exam. [Husted] stated he heard

-1 the comment in the area near the coffee pot and men's room in the trailer that was located

. . i between the two classrooms. He said he personally did not have any knowledge regarding i

either reference material or crib sheets being taken into the NRC exams and that he did not c.

i ,

know if the above mentioned ccanment relating to " passing papers" was being directed at

~

him or not; further, he did not know if the person was referring to the NRC czams or some

. . - .* . other exam.

. / , .

_ , c' '

34. In testifying about the September 18, 1981 interview, Mr. Matakas stated that, prior to conducting the interview, he had been told by telephone -

• .' he believes by Mr. Baci - that in a previous interview Mr. Husted had been N

reluctant to answer certain questions related to cheating or alleged cheating on reactor operator exams at TMI. He was also told that Mr. Husted termed

~ '

, . J this information as " unconfirmed hearsay." It was Mr. Matakas' assignment

.- to pursue what Mr. Husted meant by " unconfirmed hearsay" in the earlier interview Matakas, ff. Tr. 406, at 3; 'lY. 407-08 (Matakas)

,,' [ .

35. Mr. Matakas believes he started the interview with the matter of the

" unconfirmed hearsay." "IY. 43132 (Matakas). The investigator did not recall asking Mr. Husted if he used the term " unconfirmed hearsay." He remembered

. l .'(([ *

• j ", t ' '

,,2 1 $ asking Mr. Husted what he meant by the term. Mr. Matakas' notes reflected the

' ' - f b? . , '}f [; -

l(( ,

r 359

l

- information he obtained. Mr. Matakas wrote: "This is ' unconfirmed hearsay' statement (see report p. 39)" in the left margin on the first page, next to his notes

' ~, describing what Mr. Husted told him about an incident he had heard. These notes f

indicated that Mr. Husted l j

c - ', .

} ), .,

i heard statement near coffee pot and men's room in trailer between two classrooms. Some

,, f ',, e p'

(' '.V one (don't recall who)- don't even know if comment was directed at me - passing papers

. <, . t.? in the exam. Starting the day of the first exam and go seven days. h was in this period that

+G, ;g '#( , , , 's t I heard it.

s

,' '. r .. v ;1 Q. Characterize statement.

, ~ ' ... . e .

• y ;] .1

_t A. h was one of those type statements that someone makes when he was mad and

.! says to the first person he sees. (going to semnd page)

- - ., i

. / . , '; Don't even know if he was talking about SRO or RO exams.

5 m

+

Id., Attach. 2.

c ,

36. Mr. Matakas' draft summary related the incident described in the notes, prefacing the description with a statement that "Mr. Husted was asked to cle.rify what he meant by ' unconfirmed heresay' [ sic] in his previous statement." Id.,

Attach. 3. In his prefiled testimony, Mr. Matakas stated that either Mr. Husted gave the indicated response in an answer to a question as to what he meant by

" unconfirmed hearsay," or, after he made the response, he acknowledged that

the statement referred to the same incident he was referring to when he used the phrase " unconfirmed hearsay" during the July 29, 1981 interview. Id. at

~

! 5. Mr. Matakas stated that Mr. Husted characterized the statement as a rumor. He 3 W. v s. 1 noted, however, that Mr. Husted's statement may have been voluntary. Id.

37. Mr. Matakas asked Mr. Husted why he did not provide the information

- ' N

, , , before and was told, "It wasn't that I did not want to identify anyone the last time

- interviewed. I couldn't identify anyone. I didn't want to spread rumors." 'IY 428

- (Matakas). To the best of Mr. Matakas' knowledge, Mr. Husted used the phrase

- " passing papers in the exam." He said Mr. Husted indicated he did not know

',*- whether the passing of papers was referring to the NRC exams or some other exam. Mr. Husted further told the investigator that he had no knowledge of reference material being brought into the classroom. Mr. Husted said that no one told him about having cheated nor did he see anyone cheat. Mr. Husted did state that the questions he was asked during the first interview were so broad he s '

- did not feel that he could answer them. Tr. 40910 (Matakas).

38. Mr. Matakas explained that when taking notes he writes comments

[ - . during the interview or immediately thereafter. He makes margin comments when he amplifies his original questions in further questioning, and gets addi-tional information. He thinks the margin comments on Mr. Husted's responses

,.', were made right away. 'IY,411 (Matakas). When interviewing Mr. Husted, the

. t -

. i .7 ,. . . ' -

360

4 investigator did not have a copy of the August O!E Report with him. Tr. 444 i,,

i . (Matakas).

1, ' ' ' < e,,'- .

39. '1he investigator testified that he did not believe Mr. Husted withheld

' e '. '

, f .,[ ,

p

any information from him nor did he recall him being uncooperative or not

'b ,,.

, > e' e, {1 forthcoming. Matakas, ff. Tr. 406, at 6-7.

2 i  % ., ,

V, 1 40. Mr. Husted testified that when he was interviewed on July 29,1981,

.' ~* 3; . .,3 j - .

< he did not know at that time that two of his co-workers were under suspicion

' " ' ' D ;c for cheuing and that the mechanism involved the passing of exam papers. He 7, .-  ;

1.[ g *, ,ic', , '] , G, ,2 was apprehensive before the interview because a shift foreman had told him lS,. ,

-54 . ,,j g. . - [ . that in connection with the TMI Unit 2 accident NRC interviewers asked

-b g/,t '

S ..? / o ,Q excessively broad questions, trick questions, and often distorted the answers they .

l ' .w y * ., . received. Husted, ff. *IY. 330, at 5. Mr. Husted said he went into the interview I i, -

V with the thought that he was going to give very specific and accurate answers. He 7'

s' a was not going to answer a question that was so broad that it would be likely the answer would be incomplete. 'IY. 514 (Husted).

l- , , . ,

4 l.',t ' ' ~ '

. . 41. Mr. Husted acknowledged that he declined at first to answer the l question dealing with bringing in reference material because it was too broad. He J. said the question was not limited to authorized or unauthorized material and not to any particular examination. When the question was then asked as to

! either examination, he answered about himself. His recollection as to the answer

, l was consistent with the Christman summary. Husted, ff. 'IY. 330, at 7-8. On cross-examination, Mr. Husted stated he sought clarification of the question,

. and answemd it as rephrased. 'IY. 505-07 (Husted). Mr. Husted acknowledged, however, that such an exchange was not recorded in the Christman notes. 'IY. 508

' .. . l (Husted).

42. Mr. Husted also recalled being asked about any knowledge of cheating,  !

a question he was displeased with and declined to answer at first for a reason .!

he could not remember. He then noted that the Christman summary states that )

.i- . he said he could not recall 1.aving heard any rumors or gossip in regard to j

~,

cheating on the April examinations. Mr. Husted testified that the Christman

. record most accurately reflects his answer. The August OIE Report did not

• . l report the exchange but stated that Mr. Husted acknowledged hearing rumors and labeled them as " unconfirmed hearsay." Husted, ff. 'IY. 330, at 810.

. ~ . - , . 43. Mr. Husted testified that he seemed to recall that when he was asked a

- ' s, ' question he did not want to answer he asked the interviewers whether he could

> - decline. He said he was told if the investigators wanted more information on the subject they would interview him again later. Id. at 10. The witness testified that i ~

as to the questions he did not answer at first, he answered them when placed in

• ?. a different form or a more specific question was asked. 'IY. 505,508 (Husted).

44 Mr. Husted Stated that he did not recall hearing or using the term

, 1, / NG.;f,j. , ,~

. " unconfirmed hearsay" in connection with the July 29,1981 interview, which

[ '

. ,, 9 361 i

_ _ _ _ _ _ _ _ _ . . _ . . _ . _ _ _ . . I

)

I l

i is consistent with Mr. Christman not using the term in his summary. Husted, s '

if. *1Y. 330, at 10.

.'.,,. .i,

. . 45. When Mr. Hosted was cross emnined on his statement about his refusal to answer the first question deahog with bringing reference matenal into the mammatinn room, for the reasons that it was too broad and did not relate

)

• r , '?

., . ., .; to any particular exammation, he stated that he could not recall how specific the information was that the investigation was related to charmg on the April n

p'(  : f, ;*i'['t ijf; n..

wx;

'h - 1981 czarnmatum. He stated that he may have known that the investigation was related so that exarnination. "1Y. 571 (Husted).

- 'l g d. , .].C " .* , ' , ,

46. Mr. Husted thca testified that le was uncertam as to when he knew

. , ' f* .* j }, . ,'

s

• l the interview involved an NRC examination, whether it was before he went to ,

a,, . , ,

7 , .' ,

j the interview or if he was told at the begmmng of the interview. When pressed l N as to why he interpreted the question on materials being brought into the exam

• j

. < . 'i ,

(,.*>^,-

. l ,

as applying to all exams that he ruiicipuicd in since joining the company, l

. 'i i Mr. Hasted stated that the broadness of the question provided no guarantec l

. that the investigators were looking into that one recent examination. When I e

pressed further, he stated he was not certain that at the start of the interview l I

that anyone specifically told him that the questions would be limited solely to that examination and not to any other activities tha'. occurred prior to that '

exammation. 'Iir. 572-81 (Husted).

47. Mr. Husted on cross ~mintion recalled Mr. Christman's testimony to the effect that it was clear that the July 29 interview related only to the April 1981 examinations. In answer to a question as to why he had difficulty as to which exams were involved, Mr. Husted said it related to the warning of

,' the shift foreman about lunad quesuons. He said ic wanted to make sure his answers would relate to the specific exams. 'IY. 611 13 (Husted).

(..

48. Mr. Hustext was asked as to how he related his statement during t' e

.,"j - . l July 29 interview as was reflected in the Christman summary, that Mr. Husted o .,

'~

( '

. . . -' said he did not know if the pmetor left the room during either examination with his comment before the Special Master, that although a wild guess, it was 50%

a of the time. Mr. Husted answeed that the Christman notes indientra he had a limited knowledge of the specific whereabouts of the proctor and when asked

. by the Special Master he just picked 50% 'IY. 61415 (Husted).

3 ,

c , '

49. Mr. Husted testified that he cunently had a very limited recollection

+

i of the September 18,1981 Matakas interview. Mr. Husted said he did not recall

, the investigator using the term " unconfirmed hearsay" and it is not a term

Mr. Husted uses. *IY. 531 (Husted). Mr. Husted repeatedly testified that he never considered his statement about the passing paper remark to imelve a rumor and

=

.,,.,~

,,...,.~>.,,g .," ,.'d*J . . ..4

,,s ,

• l *

. 362 l

k I

t he never knowmgly ebrvwized it as such ' *n. 541 (Husted). He described it as information he personally gathered first hand in passing by a cmversaten and i., that it was a conclusion he had drawn on his own. When deposed on October

~

l , ' , ,'e ) ~.. '

• 5 23, 1981, Mr. Husted stated be did not hear rumors to the effect that papers

?, ,

'j f. * -

were passed imm one person to another in the exams. In giving his deposition on April 29,1986, Mr. Hasted stated that he did not coneirier the matarr to

( , ' , r 'f ' .

c j r

?e . l

,, .,g involve nucors.

' 50. Mr. Husted felt that the investigaser in his interview mittakenly

.J.;,],

,/ I

-s .;. .. .

seconled that Mr. Hasted had class Ged de passing papers remarit as the

' 'A f a  :' .

...r.. ed heasay. Mr. Husted said that when he left the S;,4- h= 18

,[j' ' -

Y . S, - ,

~

,- innerview he did not think that he had given Mr. Masakas the impression that s

, ;:* t i L ^ 1 g .. ,

his knowledge of the conversation he had overhead constituted a rumor. 'n. 534

'? .

. ,' Rj- ,

?.,'>'.'.'

, s

/ ., , '. ,

(Husted).

' .. 51. Mr. Husted intrortsu est a whole new elemcza into the p(- V g whea

. f .I

,y] he gave py c.d testunony as follows:

.. , s. , ,

• '- , k is posalde that he IMr. Masakas) did acs ask me she nr-er= be nessa no k is also

- . possible. bouever. ibas Mr. Masakas did ask me if I ceasMesed the"pessing papess"er===am i to be "abe == firmed heersey" anudal to as page 39 and then I simply mimmadensood the synestian when I said is was. k is also possible that I undensood the er amaa and gave m i amoosms answer. when I was Ant asked the nyma=== as the beanns (before the Special Mesmerl. I answesed it imoamcaly and had to correcs any answer less:r an.

Hussed, ff. "R. 330, at 16.

., 52. Husted could not recall when le learned of the two workers who in

% *i chestuig had passed papers between them. He testi6ed that he believed he did not recall the pamng papers comment until afkr the July 29,1981 intervew. He q said it could have been when he saw tte August OIE Report. Mr. Hasted stated that at the time he learned of the mechanasm by which the two had cheated, or

,-d -

shortly thereafter, he tuncrnbered the conunent le overhead previously which involved the words "paning papers." He said that reading the August OIE d o

. . Report may have caused him to remember the remark. Id. at 13. Mr. Husted then 11meribed the conunent to Mr. Matnkas in his second NRC interview.

- - 53. Mr. Husted also had another view as to what went on at Ibc September

>e

~

,- 18,1981 interview with Mr. Masakas, as revealed by the turvernarerwn Mr. Husted l

, 'I had with John F. Wilson on October 5 and 6,1981. Mr. Wilson is an attorney

, l q ,

who sanm.ded the Licensee and acted as hatson for tie Ucaawe with tte NRC

• 'Befsws em Sgeeint Manus, Mr. Hasmut atsepted de h of the peisk pmpus samsaum se a runar i / .

isa de fuseweg-a ,.c

' Q. las's num as Stair 27 at page IL Yan Ma a nemar tima yeo luard meer the adfas pts and

' a*  ; eman's sense in es skud pangsph en shst pays. In dua the saans i - ihm yssa mauefcning to?

• .**,Y'.) A., Yan.

i l, j .'/, .' f ',

a

3,w

.y'

,;', ,+ a s , ', , '

. sangI!ah. s.Tr. m

. 1 . > > .

e A

I, I

~ - in interviews and in transmitting information that was developed in the course

~

of the utility's investigation. Tr. 458 (Wilson). Mr. Husted and John G. Herbein, then Vice President for Nuclear Assurance, were having a conversation on i

.J -

- i ,

October 5,1981, when they telephoned Mr. Wilson because a question came up j l -

as to whether or not Mr. Husted reported the passing papers remark to the NRC by way of the Matakas interview. Mr. Husted was concerned that the information

• ' - -. should be reported, if in fact he had failed to do so. Tr. 457 (Wilson). Mr. Wilson j

. 5 made notes on the conversation and testified from them at the hearing.' Husted Exh.2.

J / ,  ;

' l 54. Mr. Wilson's recollection was that Mr. Husted was uncertain as to

'\ .1 whether or not he told the NRC about the passing papers and the purpose of

~

j the call was that if he had failed to do so, to find out how he could accomplish i

it. Mr. Wilson testified that as of October 5,1981 Mr. Husted had a question

. , ~i, ,

as to whether or not he had informed the NRC. However, by the next day, upon reficction, Mr. Husted had confirmed in his own mind that he had passed on the information to the NRC during the Matakas interview. Tr. 458 (Husted).

• Die

. j Wilson notes were consistent with Mr. Husted's statement that he used the term ,

l

" passing papers" and never did extend it to " passing papers in the exam," a i phrase that Mr. Matakas used. Tr. 585 (Husted).

55. Mr. Samuel Newton, Operator Training Manager, testified during this hearing that he had a conversation with Mr. Husted about passing papers, which he believed may have occurred sometime between the two interviews but was 4 uncertain about this time. Newton, ff. Tr. 836, at 3-5. Mr. Newton's testimony

. did nothing to help clarify the issue.

56. Mr. Husted's testimony before the Special Master on December 10, 1981, relating to the July 29 and September 18,1981 interviews, is relevant to the issue of whether Mr. Husted failed to cooperate with the NRC investigators.

57. Mr. Husted testified before the Special Master that the August OIE i 4

Report containing the surnmary of the July 29,1981 interview was an accu- )

rate description of his interview with the NRC investigators with one excep-

- tion. He said the exception related to the investigators' summary that stated that Mr. Husted declined to respond to a question concerning the possibility that ref-crence material had been covertly brought into Lhe classroom by examinees and j that Mr. Husted had not explained his reluctance to discuss the issue. Mr. Husted testified to the Special Master that he explained to the investigators that he had seen no material brought into the roorn that was not authorized by the proctor of 1 the exam and further he did not want to discuss what tock place in other exam l

\

l 7Dr Robert L long. cow CPU Nuc! car Vice Praaident for Ndear Assurance. took notes on an october 5,

• 1981 conversanon ha had with Mr. Herbeut. The notes sme that Mr. Husted had sold Mr. Herbeut "Huated e, ants ,

• Wusas to venly w/IAE ihat they know Huswd heard two words et the water rotanam 'passma papers."* Ested j

4. . ... , . Exh.11.

364

rooms and over the course of the entire exam. W. 608 (Husted). He also testified

. that the Matakas interview on September 18,1981, was accurately described in Mr. Matakas' report.' Id.

,) , '.

• 2' *

58. Mr. Husted initially testified that the passing papers remark was the i '

x unconfirmed hearsay referred to in the initial interview. He testified on cross-J ,-

• l',.'

? examination:

.. .y

~ -

,' ; f ;;[ , } Q. On Staff Exhibit 26, page 29 [ sic] (July 19. 1981 summary] you also refer to q ., ,. o. . > , .

i

. ,i

/ unconfirmed hearsay. Are you referring to a different instance there or the same Inetance?

+

• , -.t,i. ..s,,. ...

A. That is the same instance.

s. . O,: ,' ' [pq .. ]

[ ," ~ ' [ .' ,, ,( .l 59. When asked about the July 19, 1981 summary stating that he had

• ' ]i

/

.r

- refused to reveal any specihes of the rumors he heard or identify the individuals

i' '.,',:.

,5 , / < -

, .j* who were allegedly implicated and why he refused to answer the question, Mr. Husted answered, "I do not know. Stupid, I think." 'It 522 (Husted).

' ' 60. When he was questioned further about the response of being " stupid,"

Mr. Husted explained that he did not like the way the investigation was

'* conducted and the questions were being asked. He stated that they were so broad and vague that he could not give a specific answer. For a lack of anything other to say he just told the investigators he did not want to answer the question. He went on to state that he could not remember any specific instances of rumors that were told to him about specific things that could have gone on during the 4

' examinations. He explained that he did not provide any information because he

+

. i did not have any information. Mr. Husted stated that the summary was how the

,' ,' l investigators interpreted his saying that he did not have anything to say. Staff

' Exh. 2, 'It 26,929.

61. ? tr. H;:sted further stated that between the July interview and the Septembet interview he concluded that the words " passing papers" that he had

~

heard cu.ild have been referring to passing papers during the exam, which he

,', . indicated to the interviewer in September.

62. Mr. Husted was questioned about his testimony that both interview accounts were accurate, that in both instances he was quoted as referring to rumors as " unconfirmed hearsay," that he had testified earlier that they were

'- **' < the same incident, and then that in the first interview he said he did not recall any specific rumors. He was then asked which account was correct. Mr. Husted

- answered the last account was most correct, the September 18 interview. In response to the question why he had stated earlier that they were the same

- incident, he replied that he did not know. Id., W. 26.930 31.

8Mr. Hunted usuried before the special Master that because of the diffwulty he had wah the intual invesugauan

. .*~.*. .. ,

, ,; ,* i repan, he inatsted that Mr. Masakas wnte down every quesuon, which he was pernuned to road, and he then

• - *- stated tus answer which was wnnen down verbatun. staff Enh. 2.Tr. 26.967.

+,, , .; . , .: ,

365 t

- _ _ _ _ _ _ _ . _ _ _ l

63. During the current hearing Mr. Husted was asked why in his testimony before the Special Master he had agreed to the accuracy of the July 29 interview

.l summary. He answered that he had not taken the time to seriously consider the

., question put before him and that he had given the document only a cursory

. T -

review. He also explained that he had been chastised and attacked rather than

' ~ ' -

i . .

. cross-examined before the Special Master, and that caused him to be confused and to make foolish errors. Tr. 611,630-31 (Husted).  !

+ i g , ,

. ,'l!

~

-. ~

Conclusion:

Mr. Hustedfailed to cooperate with the NRC investigators.

7 j

. . , (!

64. 'Ihe evidence of record establishes that Mr. Husted failed to cooperate

- - with the NRC investigators who conducted the July 29 and September 18,1981 interviews.

65. " Cooperation" may be defmed as "to act or work together for a com-mon purpose or to a common end." Cooperation with investigators can be meas-ured by the extent of the information furnished in answering questions when in-terviewed. It can also be measured by the reliability of the information furnished.

as well as by the candidness with which it was provided. Providing information that proves to be unreliable and misleading and undermines the investigative effort is the antithesis of cooperation. Overall, that is what Mr. Husted did in providing information to the investigators, and it must be concluded he failed to cooperate.

66. Ibr case of development, Mr. Matakas' September 18,1981 interview

! of Mr. Husted is discussed first.

67. Mr. Matakas, a professional investigator with many years of experi-ence, proved to be a very credible witness. His testimony was supported by notes and summaries. He was* straightforward, knowledgeable, and persuasive in testifying.

- 68. When Mr. Matakas interviewed Mr. Husted. he began with the assump-tion that Mr. Husted had been reluctant to answer certain questions during the July 1981 interview relating to cheating on the April examinations. Mr. Matakas

. had been advised that Mr. Husted termed the alleged cheating " unconfirmed

- *

• hearsay" and he was to attempt to obtain information about this matter from Mr. Husted. Mr. Husted informed Mr. Matakas of the passing of papers. In the ensuing interview, Mr. Matakas reasonably believed from what Mr. Husted told him that the passing papers remark constituted the rumor that Mr. Husted s had heard but did not reveal at the initial interview. Supporting evidence

~

that Mr. Husted led Mr. Matakas to believe the foregoing was the response Mr. Husted gave to the investigator's question as to why he had not provided the information about passing papers at the first interview. Mr. Husted said that

. .  ; . he could not identify anyone and he did not want to spread rumors. Mr. Husted

. , ,s,. - -

e 366

through this response indirectly identified the passing papers comment as a ru-l ,

, } l ,

mor and did nothing to dispel that identincation. Mr. Husted did not say that he did not categorize the incident as a rumor and that he did not recall the incident

, . i,

-' at the time of the interview, as he would do later. At the very least Mr. Husted y - -

• misled Mr. Matakas during the September interview.

69. How willing was Mr. Husted to stand by and confirm the story he told

~

.>1s- ' . . - -j

,  : ,. , Mr. Matakas, thereby supporting its credibility and trustworthiness?

i,: T' ?? '

70. Within 18 days after the Matakas interview, of which the " passing pa-Pers" comment was a significant component, Mr. Husted informed his superiors, c

• j. _ , f *' ', ,

a .,

h

,y . ~ . i. . . , ; . 7 .

. q on October 5,1981, that he was uncertain as to whether or not he had told the

, g } } 4.' ' J '

NRC about the passing of papers, and if he had not done so, asked how to go 4,*

2 3, ,1,. - . about it. The very next day he then advised the Licensee that he had in fact

+ . passed on the information.

.' ',; if *

,' 71. When testifying before the Special Master on December 10, 1981,

/ > Mr. Husted initially not only testified that Mr. Matakas had correctly described

' L' , ,

the interview, but also that the passing papers remark was the unconfirmed

- hearsay that was involved in the initial interview. However, he later took another tack, testifying that he could not remember any specific instances of rumors that were told him about specific things that had gone on during the examinations. Mr. Husted stated that he did not provide any information at the initial interview because he did not have any information.

72. Mr. Husted then came full circle at the last hearing, again indicating that Mr. Matakas' statement about the interview was accurate, but with a new wrinkle. Mr. Husted raised the possibility that Mr. Matakas had asked him if he considered the passing papers comment to be the unconfirmed hearsay referred

, to and that Mr. Husted had " simply misunderstood the question when he said it was." Mr. Husted also raised the possibility that he had understood the question but gave an incorrect answer. This came about despite extensive testimony by Mr. Husted during this current hearing as to why the Matakas' account was

- . incorrect.

73. From the start Mr. Husted undermined an important segment of his interview with Mr. Matakas. He immediately questioned what the content of the interview was, and thereafter made inconsistent and contradictory statements of what was said. Mr. Husted's statements vitiated that part of the interview dealing with his acknowledgment that the passing papers comment was the same as the rumor he had heard, but that he did not reveal at the initial interview. Mr. Husted's continuing conduct cannot be explained away or excused on the basis that it resulted from how Mr. Husted reacted to cross-examination at a difficult time. Mr. Husted's actions showed a lack of reliability, credibility, and responsibility on his part, which most adversely affected his discussion with

. Mr, Matakas and evidenced a failure to cooperate with him.

• - 'q 6 g .

- 367

74. Moving over to whether Mr. Husted cooperated with Investigators Christopher and Smith in the July 29, 1981 interview, a principal area of focus becomes whether Mr. Husted responded to the questions asked of him. It should be pointed out that the mere failure to answer a question during an

,a

+

, l -  ; ; ', ,

investigation does not necessarily demonstrate a failure to cooperate; there may

.; be a justification for the refusal, such as vagueness in the questions or that the y ,

-['i information requested is not available at the time the question is asked. If one l'* .

,.  ! were cooperative, the reason for the inability to respond to the question would l' < E . ,' ' ' ,

i be given.

.,.Oy5 *

, .1' 75. The report of the interview prepared by the investigators differed from that of Mr. Christman, who attended the interview for the Licensee. As pertinent, i . ..

i the investigators' report said that Mr. Husted refused to answer a question about

, ,;, covertly bringing reference material into the classroom and he did not explain his reluctance to discuss the issue. It also said that Mr. Husted acknowledged having

, i heard nimors about cheating on the exams but refused to reveal specifics. It further said that upon additional questioning Mr. Husted declared that he could

' ' ' not recall anything concerning what la had heard. 'Ihis would indicate that Mr. Husted failed to cooperate with the investigators by refusing to answer questions about reference materials and rumors, without explanation.

76. Mr. Christman reported that after not answering a question about

,, reference materials, Mr. Husted did answer then a similar one. Mr. Christman

also reported that Mr. Husted initially refused to answer a question about rumors

, l and that, when asked the question again, stated that he had not heard rumors

, j in regard to cheating on the April examinations. Mr. Christman provided no

', ~

- 4 explanation of why Mr. Husted refused to respond initially. Mr. Christman's l report indicated that while not willing to cooperate immediately, Mr. Husted did cooperate with the investigators by answering their questions.

-' 77. Mr. Husted's testimony before the Special Master ultimately confirmed

q that he had not answered questions. He testi6ed that he did not like how the questions were asked and for a lack of anything other to say he jus.t told the investigators that he did not want to answer the question. His testimony

, before the Special Master did not establish what his answer to the investigators

. was. Mr. Husted testified that he did not provide any information because he

. , . did not have any information and that the investigators' statements about his July 29,1981 refusal to reveal specifics was their interpretation of Mr. Husted saying he did not have anything to say.

. l, 78. Mr. Husted introduced a new element in the current hearing, which would indicate a more cooperative effort on his part. He testified that as

- ' ' - - to the July 29 interview he sopght clarification of the question on materials

' * . brought into the exam room, and he asked permission to decline to answer b.

.* . J, .. .  ; a question. Mr. Christman could not corroborate this and because it was not

, . , . ,hy , , ' ~ . . . , ,

- ..' recorded in his notes Mr. Christman indicated it did not occur.

. . >4 .

368

79. If one accepts the investigators' summary in the August OIE Report,

. It would support the conclusion that Mr. Husmd did not cooperate with them. If one accepts the Christman version, it shows that as to answering questions, after

, i -

V '.

,.- '. 3 ,. i some hesitancy, Mr. Husted ultimately did not fall to cooperate with them.

y

.' 80. The investigators' summary, although admissible in evidence, is enti-

? ,fly '.. V

,,,,' 5 tied to virtually no weight. It is without probative value for there was no one

.y "

,,7

' [ (, , V who could stand cmss-examination on it. In a system of jurisprudence that rests

, E p.  ; .' ' .. , ' '4'[ '.M ;# ' , *l , .

heavily on the right of cross-examination, one cannot ascribe any significant O, ! . v, - 'f'A k %.{,P h .i value to a document where no one stood ready to defend it.

-[.( *i.Q R.g ,.h- '

j 81. Although Mr. Christman was not an independent witness to what Z ,q. z%

3 :,j ,

, 3 occurred at the interview, being there to represent the Licensee and to look

w. ,).[b

~'

out for its employees, there is nothing to indicate that hir report of what

,c occurred was other than accurate. He noted the questions that were not initially f{. 3j

,- ,' answered. He differed with Mr. Husted on the latter's claim of justifying

,,- l not answering. Mr. Christman's version of what occurred at the interviews is

[, - ,

, accepted as what happened, along with the conclusion that Mr. Husted answered questions asked of him after initially refusing to do so.

82. There is other evidence that Mr. Husted did not fully cooperate with Investigators Christopher and Smith. When Mr. Husted initially failed to answer a question on bringing materials to the examination, claiming it was overly broad and saying it could cover all examinations he had taken at the facility, he

~ -

i appears to have been obstructive. Mr. Christman had no difficulty identifying what examinations the inquiry concerned.

83. Also, Mr. Husted gave inconsistent testimony on the matter of the

,i whereabouts of the proctor. He told the investigators he did not know whether E.

. -  ! the pmctor left the examination room. He testified before the Special Master

- that he guessed that the proctor was gone 50% of the time. His statements were contradictory and unreliable.

i 84. Mr. Husted was not candid with Investigators Christopher and Smith i when he was questioned as to whether there was talking in the examination room. He said there was none, not considering as talking the previously discussed question or exclamation. Mr. Husted stated that the classroom was D,, ,

quiet and the only disruptions were at times proctors were asked to clarify c

questions. This response was at least an obfuscanon of what he testified later

?

had occurred.

85. Mr. Husted's interview with the investigators on July 29,1981, was marked by a resistance to testifying. which he then acceded to. He also, in part,

/ .. .

- 4 obscured what had occurred in the classroom.

,, , 4 86. Although Mr. Husted's responses to the investigators on M 29, 1981, cannot be viewed as an overall failure to cooperate, it involved some

,' deficiency. This deficiency must be considerea along with Mr. Husted's very

. 'n '4 a '.1'

., v. ,q. -

. ,' . basic failure to cooperate with Mr. Matakas. These two interviews were part of

, . , .i

,. 9-l 369

. \

a single investigation and are wholly interrelated. When tie evidence of both interviews is considered together, it is convincing that Mr. Husted failed to cooperate with the NRC investigators invest.igating cheatmg on the April 1981 NRC examinatens. I'

~.  ; ,

87. Discussion is warranted of what lie interviews established substan.

( ~

, tively. Both interviews failed to show that Mr. Husted had any knowledge of

• I 4

a  ;- -

& , chenrieg on the examinations brought about by bringing in onturie. marerials into t 4 the examinaron room.

',-'.' 1- 88. Also, as evidenced by the accepted Qinstman nu==y, the first

, p .. f , ,- .

interview failed to show Mr. Husted <= cal 4 informaron at that time of

'*; e . <. . ,~.. ~

o-l rumors or gossip in regard to cheating on the April exammauon. Ibrther,

.y

, there was no other reliable, probative, and substantint evidence presented to

,, i" " l

-  ! estabhsh that Mr. Husted did, in fact, knowingly have information of rumors

, . , or gossip at the time of the first intaview which he concealed. Discardmg

. what is just speculation and conjecture, bascally the only information of

. . reconi about the knowledge Mr. Hufted p% mt at that time comes from his esmermentt and these statements have proved to be so unrchable that they are without value and are not uscable for fact finding. 'Ibc record in the proceeding fails to comprehensively establish what Mr. Husted knew and when he knew it. Without such evxlence, it was not established that he concealed informanon i frorn Mr. Christopher and Mr. Smith about cheating on the April 1981 NRC exammations.

-- C. Did Mr. Hasted's Testimony Before the Special Master lack Forthrightness?

89. A dictionary defmition of " forthright" is "rucwfung simight on, lack-

! ing ambiguity, straightforward." Webster's Third New international Dictionary

.~ , ,

' (Unabndged 1976).Tbstimony that is contradictory, mislenthng, tacting in crtd-ibility, or less than serious is not forthright. *Ihe record before the Special Master contams a significant number of such instances in Mr. Husted's testimony.

. 90. As disenttert in f B, above, Mr. Husted first testified before the Special Master that the investigators

• reports of their interviews with him on July 29 and September 18,1981, were accurate. He agreed that the patung papers remark was the unconfirmed hearsay referred to in tre initial intaview. During the same

'- session before the Special Master, he also took a position on the accuracy of these statements that was inconsistent with his criginal testimony. 'Hiis action

- .  ! evidenced a lack of reliability, responsibility, and cacdibility in an important area

. r of inquay.

91. When Mr. Husted was asked atxxit the July 29,1981 summary stating

- - * that he refused to reveal any specifics of the rumors he heard or i& miry the f,;.. <

,* individuals who were allegedly implicated and why he refused to answer the

, y. ,

370 i

+

, .j

. , o ,

1 ,

4 b:

/ i

'/

1

.i i

- i 0

?

t quest on, Mr. Hussed answemt, "I do not know. Stupid, I think." '11. 522

, (.$ .  ; (Humd). (Illis answer contd te sup~ : as again con 6rming the recuracy of the August OIE Report >== nary.) Mr. Hused's commcat on this answer during V ,L. ; , ,' , -

' - the canent hearmg is telhag. Aflar ===*iamag his regret. he stated,"Givat this

j. ' , ' ,

semask and my inr==ianne Iretunomy about the 'passag papers

• crsan==s I

.s , J. : , f , '

• .,3' , ,

~6

.) 4 have no reason to destit ihm / wesu.nl alpper and to considnr de sp=maana

'.a .

i/ '

.g', , in aless than serious samumr.

@; s ,, t 'f M ," ,7 "<

. .1

' . 31 , *'..", L .j M . 4'?' g ,

92. Mr. 'Hussed answeset some questions before abe Specaan Masers in s manner that was immaimme with other answers he gave at shat hesutg. Thesc

. . O , > k.% . tS, mici }j lasernal ' .. - - -- resulted in seethnomy that lacked czulihilley and thfus-

. t,J . 7 .g Q c. $ , ,t . ., .] .

cased what occaned. Mr. Eised n'mHE=I at different times that MrMilsm was

• a' h ,,U N J.,U O. [ ',,' Q 7 $' $' the exam proctor and that he did not know who the picciar was. StaK Exh. 2, FM,L3 ,

f r */%:.,??~' '

'IY. 26,94243. Mr. Husserf testi5ed he was totaBy unaware of Mr. James' nrainne f 4 7jf Gr. . .. ( . .

demg the m # he also mid dist he "W would have nanced if

,yy .

, .v- '

• ( . l. j ji Mr. Janes had lett the socal while the proctor was abant. Ed.,'IY. 26,936. Also, O.',,- -

'.j Mr. Hussed namedian before she Special Master tha *ae guessed she procaer was

,7 '

,' f ' ,"".

- - i

,c '

sheemt 50% of the time, whseas he smtM at the July 29,1981 intavacw that he did not know if the proctor left the rnoes during the czarninnesana 'IY. 614-15 (Hussed). Qinneww s about the assivitk.s of a proctor in an inquay on risennng during an *====mia= are insportant.

93. Mr. Hussed erplanat that the innnnaimerarica were more likely the sesult of poor choeces of words, rder thwn 's test of b-_i-i - = !Y.548-l 49. However, this caplanation emanre be *,cafly accrpted became, in on,w 3

1, _ ,, _

- - instances, he claimed subtle differences in word niennings to explam asw/difli-

? cubies he found himself in. 'Ihase diffamaces he clanned included a ditmet

'

• between the wants "l'eshortar and"a burden" in defendmy his 1981 emennany 4 - , , ,.

• that he was bothered by the ahnaire of the proctor (hecease it forced Ir2m so leave j the scorn to obeam clarinc=han), but that it was not a bunlen, becanse he did not j

• • .. - saind gemag out of his acet m wat sound. *1Y. 543 47 08assed). Mr. Hussed J -

claused another dafEenace in meaning when he was questioned by NItC inves-

- *1 bgnsors whoder thee was takseg ha the n-in=Han wn. W.rssponded no, ,

- - harmane he did not considar a -*=ient atmannant as "ts/,, ting" because it wer e .

. l j not converianan Tr. T.S.39 (Husted). Moreover, he said he. did mot classsfy'she '

passag psytrs restark as a rumor because it was somednag te had ov::rbeard c,

f '

and was a cancineman be had skawa on his own.'IY. 53540 (IbsaM). Ma Hassed .

found no annaart between his nessaness, made danng thh hashig, sing he sel ,

dos gets angry and his don'nphon of attenng alrunt the exclamasina "Wiet

',, the hell is this?" and leaving the exami'ation roons to regain his cbacemranon,

• by explamag that at the exarmnnhnn be W33 gpart or ,jtsappnnued rather than

- i angry. Hassed, fr. 'IY. 330, at 4; 'IY. 520, 606-07 (Husted).

j

- 94. Mr. Husted petmded a number of reasons why he testified before the Special Master in the mannar ha had. First, he said it was the first time

, ,T*,. , , , , ,

- , ,g. f.? p

,:, r. , . - ~. . . . ...

,  : b.

19

'a v8 g ,I. k 8

.'y 371

- x_----- _ - - - _ . - - _ -

[7 *

c

• J, f

/

h i

./ [' /, taidhe heh6dhadtestified in such a proceeding. Husted, ff. 'n. 330, at 22. Seced he been under a great deal of physical and emotional stress in the

( months just prior to his appearance. Id. Third, he said that perhaps because of 4

k.1 s

the sequestration order put in place by the Special Master, he received little bdp from company counsel before the hearing. Id. at 23. Rnuth, and most

, VT  ! importandy, Mr. Husted said he learned only a few days before his appearance l- .. f. of Mr. Ward's testimony impilcating him in charges of attempted cheating. Id. at

\.,> '

D He testiSed that these allegations turned his anxiety about testifying to

,?

A *

" outright fear." Id. Mr. Husted r. aid du.t after he learned cl the Ward charges,

1. / . ho gave very little thought to his two OIE interviews. Id. r.t 23. He stated that he

/

_ , , htid not reviewed the first and second reports carefully before testifying.Id. And

, . while Mr. Husted said he believes he reviewed the Christman report of his first

~ ' ' '

interview before testifying, he does not thiri he compared it cantfully to the

, . first report. Id. Mr. Husted testified that as the cross-c).aminatim proceeded, he became " hopelessly rattled," Id. at 24. He had an urgent desire to get the

, testimony over with and get out of the hearing room. Id.

, 95, Mr. Husted testified that for the reasons described, he got off on the wrong foot. At the outset, he incorrectly conceded the accuracy of the f7r3 and second reports. Id. at 23. He incorrectly testified that the " passing pipes" com-ment was the " unconfirmed hearsay" referred to in the first report.ld. Mr. Husted noted that the statement singled out by the Licensing Board (thm because he had no information he said he did not want to answer the question) evidenced a mistake on his own part. Mr. Husted said that he bra had no kiormation and he should have said so. 'n. 613 (Husted).

96. Mr. Husted's testimony before the Special Master came after Mr.

Husted was deposed by the attorney ict an intervenor on October 23,1981. Mr.

. Husted characterized his answers to questions posed in the deposition, as being i, ,

cute.' Because he was not caIIed tmtil more thr.n 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> after he was scheduled, Mr. Unted had been ant.cyed andiost hi: temper. Husted Exh.12 at It Husted, ff. Tr. 330. at 21t Tr. 596 (Husted).

, i ',

I **

A parucular glarms example was 9m fo3ewmg:

4 Quesuan: May I ask you. wtci happens to fuel pm tempeature sms wre his if an auchzmg layer bunds up on the cWdir g surface?

, Answer: Ng you may swt Quasuon: Ycs o m's know the ar swer?

Answer of course I knew 4he saswer. I think iu a ndiculous questam. You aned me if you may ask me and rny answer 4 you may act.

ouesuon- tm me rep bis dist then, wn s happens to P..s! ptn wn;crature over core L'e i'an wJinns layer htulds a on the clodd.na ur%7 Answer h meresses.

Quesuon: Thank you.

Answer: You'se welcome.

s , Tr. 596. 616-1s. 620 olasted).

D y

l l l

l l

i

,  : /

u_U._____.1_________

3 t

J

97. On about December 2,1981, following the deposition and before

' he testified before the Special Master, Mr. Husted was admonished by an attorney for the Licensee not to conduct himself as he did when he was deposed. Tr. 600 (Husted). His conduct was held up to other Licensee employees c .

i -

' as an example as how one should not conduct oneself when testifying. Husted, f* -

ff. *1t 330, at 21. Mr. Newton discussed with Mr. Husted the necessity of

i . . , . ,

lb -

. , . . _,[,' staying calm so that he would give thoughtful answers. Newton, ff. Tr. 836, at 6-7. Despite the advice, Mr. Husted conducted himself in the way he did

,;*J

'

• before the Special Master. Attorneys for the Licensee in the restart proceeding s.* .

ii d brought Mr. Husted's testimony before the Special Master to management's fn* attention. Newton, ff. Tr. 836, at 7.

M .s , ; , .

. 'd

.v.- .

~~'g#. p

Conclusion:

Mr. Husted's tesdmon) before the Special Master lacked forth-

' rightness.

.t,

" 98. The inconsistencies, contradictions, and conflicts in the testimony of Mr. Husted and his hck of seriousness at times giving the testimony make it apparent that on in fxe that his testimony before the Special Master lacked forthrightness.

99. Mr. Husted's exple' .Qns as to why this unhappy display occurred are unsatisfactory. Although it is well appreciated that this was a trying time

- for Mr. Husted, he had previously been warned as a result of his flippancy j

' - when being deposed that such conduct was unacceptable. As an individual with

• a responsible position, Mr. Husted must be accountable for his actions. 'Ibing times do not give one a license to act at will. Mr. Husted evidenced a disregard for the regulatory process.

100. It was not established in this proceeding that Mr. Husted, at the time

• of the first interview, had a comprehensive k'owledge of cheating widch he

<h

• ' ' concealed at that time. Neither was it shown that his lack of forthrightness bcfore

- the Qecial Master was an attempt to obscure such information, although his lack of forthrighmess did have the effect of obfuscating what transpired. The fact that

~

obstruction of the investigation was not established as a motive for Mr. Husted i

' testifying as he did does not mean his testimony was any more forthright. It just means the reason for his dcing so was not proven. Mr. Husted's testimony before the Specia! Master lacked forthrightness and is not excusable.

D. Did Mr.Husted Have a Poor Attitude Toward the Hearing on the Cheating Incidents?

l 101. This is the four'.h and last concern that the Commission requested

- - - that the hearing focus on for determining whether Mr. Mutted should hold any  ;

.  % '4' 373

(

8 1

1

I~

of the jobs in question. The issue pertains to his attitude on the investigation, and the pretrial and trial aspech of the inquiry into cheating on the April 1981 examinations.

102. Mr. Husted's actions that evidence his attitude were fully considered 4

under if A, B, and C of this Decision, and there is no need to detail them here

~ '

o' , . again. 'Ihey show that he did not cooperate with the investigators, that he was L,' flippant in giving a deposition, and that he was not forthright in his testimony

' ('s :

y

~

before the Special Master. It can only be concluded Mr. Husted had a poor

. attitude toward the hearing on the cheating incidents.

,. , 103. A review of his actions shows that he acted with disdain and a lack

/ .

of regard for the regulatory process. It was he who took it upon himself to judge the value of the way the proceeding was conducted. Accordingly, as it suited his purposes, he would answer questions, not answer them, or give them less than serious consideration. This resulted in instances where he toyed with those engaged in the process. He male contradictory statements and changed his testimony at will.

, , , , 104. Mr. Husted's poor attitude resulted in a lack of communication be-

. tween him and those conducting the inquiry. The record was obscured, and no accurate account was obtained of what occurred.

105. Mr. Husted was undergoing emotional and physical stress during the inquiry But despite the fact that he was cautioned that his conduct was unacceptable, the conduct continued. The unacceptable conduct was not an isolated instance, but continued throughout the inquiry. As one who holds a

. responsible position, he should be held accountable for his actions. There is no basis for overlooking his poor attitude.

. 106. Relevant to the matter of Mr. Husted's attitude toward the hearing

, on the cheating incidents is the attitude he evidenced during the current hear-ing. Although he did approach the current hearing much more seriously, it did

~,

not appear that he fully understood the error of his past conduct, and he con-tinued to display some of the same elements that led to the conclusion that he had a bad attitude.

107. At the outset it should be stated that he was not expected to be contrite ,

to demonstrate that he had a correct attitude toward the process. The illustration  !

below is a prime example of his not having learned that his answers to questions must be correct and that it was incumbent on him to fully communicate his

r. position on matters. The testimony quoted below related to contradictions in his answers about the proctors and their whereabouts. Hts answer is revealing of his thinking, and it is quoted in its entirety.

. Q. Your testimony was to some extent inconsistent, and your question of your  ;

forthrightness in your testimony before the Special Master has become an issue. I j' i .

t. ., l J ,

9 l

374 l!-

1 1

______.---______ - _ _ a

kb' ,

l l-and I would like to ask you whether you believe your testimony was fonhright and,

,' if so, how are we to interpret or explain your inconsistent testimony?

A. First off, I believe my testimony was forthright and most of the inconsistencies

. .' , . that have been brought to my attention are most likely as a result of poor choices

. . y ;,

,' 4.

, - n.

.J *

.a

-]

v1 of the words that I used in explaining the answers.

- . ./ 1,e ..

tJsing your tast question as an example, it is very apparent to sne that during the exams I showed little concern at all as to who the proctor was, therefore,Ican wry

-+j., .

,t,., .,

,  :'V . .f' a .

8." , , 'j3., ,,

nasily understand why, when asked a lot of questions abost who the proctor near

~

' v, _

, , y* ,, v

and how often the proctor mar there, that I condd kan easily not han a consistent

. . 6 . , ;, .

' .* ; 7 , ' ,"l , l . j anrwrfom one qsesssion to another. IEmphasis supphed.)

-3 ,

. ,n ,

• 'Ihe primary concern in taking on these exams is to pass. In order to do that h

, " ~ f

- ** w requires a gaat deal of concentration. Keeping trodt of the whereabouts of the 4

' C(+.$

.l

< M' t',7

.? proctor would not be in the best interest of anyone taking that exam. Therefore, it doesn't trouble me at all that I didn't remember who the proctor uns or when the l ,

D, .

4 proctor nas and war not in the room. [ Emphasis supplied.]

- ~

• ~~

u. ,.

In fact, the proctoring of the exams changed hands from tirne to time without my

-} ,,g '

knowledge, one time Mr.11sverkamp was in, another time Mr Wilson would be in,

• -* some other time someone else would be in, sometimes there was no proctor. But I did not keep track of it, therefore, I don't han any trouble naderstanding why, when pressed on the issue,i may give inconrittent answers. lEmphasis supplietL1

. Tr. 548-49 (Husted).

. 108. The response shows that once again Mr. Husted's approach is to only i concern himself with what he considers important and to act accordingly, irre-spective of the consequences on the validity of the inquiry and the effectiveness

,- of the regulatory process.

109. In addition to not acknowledging inconsistencies in his testimony

} before the Special Master, Mr. Husted went so far as to evidence surprise and

- considered incorrect the Special Master's finding that Mr. Husted had refused to cooperate with the NRC investigation and the inference from that fmding

'. ~. that he lacked credibility. Tr. 610, 614 (Husted). In view of the strong record

- - made before me that supports findings that Mr. Husted had refused to cooperate with the NRC investigation and lacked credibility, it must be concluded that Mr. Husted continues to deny the consequences of his actions and accept responsibility for them.

- - . 110. During the current hearing, Mr. Husted evidenced incidents of unrcll-ability in his testimony but to a lesser extent than he had previously. He gave incorrect answers to questions. When asked if he testified before the Special Master on the exclamation he said he made during the examination (in a ques-tion bearing on when the statement was first made known), he said he had,

', , . when in fact he had not. After being allowed to review the transcript overnight he was asked about questions that had been asked before the Special Master on comments, utterances, or discussions with Mr. Janes. He testified that there J

4

. 375 es=__-a-m__.___.--.-_ _ _ . _ _ . _ _ _ _ . _ _

o -

l A

t

~

. E -

was one question' that indirectly touched on it. He did not mention that he had L ~- ' been asked: "One of the NRC investigators had testified, as you know - that

./..-

i'J , c' . ' '.' .

[Mr. Janes said that you asked him a question during the exam. Is that true?"

l C ' He responded, " Absolutely not." {

l l ' '. f* ', ' . 4;, .f i 111. Mr. Husted altered his testimony in ways that had lacked credibil- I

', l ' g , , .,.

4 s

f- ..

- ,'. +j:< - l '. c,;n ity. Although he testified at length as to why the Matakas interview report was incorrect in reporting the passing papers remark to be the " unconfirmed hearsay,"  ;

Y ~7 7 ' ,,' j :..' ,,7.'j he also stated it was possible he simply misunderstood the Mat *ns question i ,

f. ' ; ' , ; ., p . I and had said the passing papers comment was the " unconfirmed hearsay" or  ;~

, .f 9 -

,1.: . * . M.. ' l j possibly he gave an incorrect answer to that question.

t,; wv. ,p.g >',.

'.j y i 112. His memory was also selective, which produced a negative impres.

L

- [' 7 ,c '

. * !,i sion. His included his newly disclosed exculpatory recollection of the excla-

. , , mation he said he made during the examination. Another example was the dis-v ,- -.

, .L ..

. cussion he related with the investigators on July 29,1981, about clarification

, , l E', ' .y .. . .. ' . * .. of a question and obtaining permission not to answer a question, which another

. witness, Mr. Christman, . indicated did not happen.

~

i

.i 113. De record disclosed that Mr. Husted had and continues to have a poor

~ '

attitude toward the hearing on the cheatmg incidents.

, E. What Does Mr. Husted's Performance of His Responsibilities with

. J GPU Nuclear ReRect About His Attitude and Integrity?

l j 114. He Commission in instituting the proceeding noted that Mr. Husted

.  ! should be able to demonstrate his fitness for the position at issue. To permit q the record to be fully developed concerning Mr. Husted's fitness to hold the positions, the parties were permitted to present evidence on Mr. Husted's regular

. job performance.

f, - ,, ! 115. Mr. Husted has held various jobs with Metropolitan Edison Company

,, ,;' and GPU Nuclear. The latter is the successor entity as the licensed operator

,a  : ~

. of TMI. Tr. 784-87 (Long). Mr. Husted held an NRC RO license from June 1978 to July 1980 and an SRO license from July 1980 to July 1983. He was

,l

, an auxiliary operator instructor from July 1978 to July 1982, at which time he became a licensed operator instructor. Haverkamp, ff. 'IY. 648, Attach. 2 at

.' 3. In March 1983, Mr. Husted was appointed Supervisor, Nonlicensed Operator

'IYaining. Subsequently, in June 1983, GPU Nuclear made a commitment to the Commonwealth of Pennsylvania to remove Mr. Husted's SRO license and

, . . to decline to use him as a TMI 1 licensed operator or instructor of licensed operators. In June 1984, ALAB 772 mandated that Mr. Husted be removed from

. the position of Supervisor, Nonlicensed Operator Training Long, ff. Tr. 755,

/ . at 6-7. Since June 1984, Mr. Husted has worked as an Engineering Assistant, j y, , j ' '

J, ,

b .

Senior HI in the Nuclear Assurance Division and deals with the TMI replica Q.e . , 9 ;y -

. i ,. 4.. .- simulator. Husted, ff. Tr. 330, at 1.

.s' 376 t

a r

,1 116. A full record was developed regarding Mr. Husted's performance

. on the job. Six witnesses testified over two full hearing days. Mr. Donald F. A ' ^ *

• R. Haverkamp, an NRC inspector with extensive experience at nuclear plants,

, ( .. , .. ,

.; 'l conducted an inspection at TM1 between February 25, 1986, and March 11, L.' . g - ..

6 ',f,J[' ,

, . .; - . %1,y. . mq 1986, concerning Mr. Husted's performance. Haverkamp, ff. Tr. 641, at 3-t 95 ' a ' . , , . . . 4. Documents reviewed included employee evaluations and appraisals from 1974 l .Z g .  ;. ,

4 3

to 1985, instructor performance monitoring reports from 1981 to 1984, and var-

' f, ; , - 2 ,(

y' 'h WC t,; 4,4; yj ,

, w p ious con 6dential memoranda related to the special monitoring of Mr. Husted which followed the cheating hearings. Haverkamp, ff. 'IV. 648, Attach. (Inspec- L p ./ - f, D . . W y,7 $ Q.A* ,J(,.; .. i1 ' 6. _'.,d. tion Report) at 6-11. .

f .117. Mr. Haverkamp's evaluation also was based on interviews to determine

,'f.f,],,. j[,1

('-

j , } %af'dj)['9

, ' . }p

.N v.1 4 personal views of Mr. Husted. Mr. Haverkamp concluded that Mr. Husted's

~?l.. , , , , 7g. f,'*, j".( '

performance

. t: '. :j

~ .. was maintained at an acceptable or satisfactory levet. Durins most of his employment, panic.

• A .

'2' ' '

• ularly while easisned as an operator instrucw or supervisor of instructors, his performance

.'t'

. . , w ,'(

~

appeased to be sood to esostlant. The many documents resordins Mr. Hastad's performance

- i

• redeceed favorably on his muitude and instgrity,

.' ic .

i Id. at 16.

118. Mr. Haverkamp interviewed ten individuals who had various contacts with Mr. Husted. They included Michael Ross, Supervisor, Plant Operations, TMI 11 Bruce I.monard, Mr. Husted's supervisor after he became Supervisor, Nonlicensed Operator 'IYainingt and Nelson D. Brown, who was Mr. Husted's supervisor from September 1980 until March 1983. Also interviewed were i

other Mr. Husted worked with or instructed.'Id., Table 4.1. The purpose of

' the interviews was to detect concerns about Mr. Husted's attitude, integrity, or e:

forthrighmess, based on observations of his performance and demeanor. Id. at

,.. 16.

/, : . . ., t .2., . , .

N 119. The interview comments were generally positive. Mr. Haverkamp 1 -

noted three comments that questioned Mr. Husted's demeanor. One viewed him

'"~

as outspoken, another that he sometimes shows bad judgment in what he says

. in oral discussions, and, a third, that he may at first appear flippant, but was truly serious. Id. at 21. Based on the generally positive or favorable comments

'~' '

from those interviewed, Mr. Haverkamp determined that Mr. Husted's integrity, l,3 p .

s. ., g 5 .

forthrighmess, and demeanor were normal to very good. Id.

E ,

120. Mr. Husted's annual performance ratings also were reviewed. The 1980 annual performance rating, prepared prior to the cheating incidents, rated i;

. Mr. Husted in the "high competent" to " low-commendable" range of the rating

'. . o .. ,

scale. Husted Exh.15. The comments noted Mr. Husted's " determination" to  ;

g . .

satisfy the demands placed on him by working extra hours, his individual

.E* .- * ' 4 initiative in obtaining his SRO license, and Mr. Husted's " honest and direct"

- E C'. ,. . . .tv..

- +,

(* .tg t j /.- .* L *4:; y-

,# e U

377 C -______I__m______.__ _ . _ _t.. . . _ L

. 4 personal escracten and "open and effective workmg relationships with his 1 supervisor, peers, and subordmates " Id.

, , , l 121. Mr. Brown became Mr. Husted's supervisor in September 1980 and j

' ,-(

worked closely with Mr. Husted in 1981 and 1982. Brown, ff. W. 6!T1, at 4 '; '

? , .,

' ~ ~ ' "

t .

2. In preparing his annual evaluation of Mr. Hasted for 1981, Mr. Brown asked j.,-l ,' * ; ,'

, .'q*3, ' ~,, ,

Mr. Hnmand to do a self.evninnhan for Mr. Brown's mnewration, and, in

", 5 -

addisson, Mr. Bsown did an amasual ; ' ' y " snapshot" evalumbom of his

, ,4

~- .

een kapsemmions of Mr. Hosted. It at 9-10; "R. 708, 718 (Brown); W. 898

',, ,. .'.- . '.

(Newton). Bodi of these preliminary inputs to the 1981 ananal evalenhnn gcjlcC[

? '. - ,. .

4

, , . _[ Ihe inspect of the aftenada of the chentag episode on Mr. Husted.

[ , ', c u '

J- -

122. Acconhag to Mr. Hassed, the 'IMI operators hIsmed the "Daimag

'1

, , f ,' Depenment for the dienung became the indmdaals engaged in passmg papers

>,,- had been ampiquered for their *==n===hann Hussed, ff. W. 330, at 11. Operator

'3 ,

.i

• annamme=== grew even stronger with the NRC annararement that the April

, 1981 NRC ar==inshan zesults were being voeded hermne of the riiemhng i incident. Id at 11-12. Added to the$ceeraBy low morale this caused was a

'. . greatly inczessed work load in the "Danung Department Id. at 12. Mr. Husted 1 stated in this impat for his 1981 annual evalunhan-f k is hemmes yay mac=tr no sanmium a posum waams amands which is leading se soimmed . ' - med imamesed h in 123. Mr. Brown's "snapehnt" of Mr. Husted depr:ted irritability, flaggag islesent and productivity, resistance to chat.ge, and ddfically reactag positively and assemag arearknem Hassed Y.xh. 3. R~=.ksi, the general cornments

. .  ; seAected an ovezall positive evalaation, #.:sp'm.p;oblern mens resolung fion J te " adverse conditions" of that pernod. Id Mr. Brown felt that Mr. Husted

~ , , .,.

i h a profeninnm1 maats* despne the "hard times" he was going 0- - i! thmagh. Id Brown, ff. W. 65r1, at 12. Mr. Brown's overau evnin=han, based

, on a snore studacd review of work for the entire year was " average to above

- average."Id He named Mr. Husted was "a competent instructor . . . on his way

. so haanming an escenent instructor " but noted that the " adverse enadirians of

. l .

the last year have had their efIcct on . . . his proiccted arrirnt'e " Husted Exli. A

- ', 124. Mr. Bassers next evninnhan, in July 1982, was dane by Mr. New-

.- . . Ion, Opezanor"Dasung Manager, who aosed improvements in Mr. Hasted's per-

.,' .- ,- .- formance. Hassed Exh.16, Newton, ff. "R. 836, at 9-10. Mr. Newton noted that

., .- ,f , he had been " extremely diligent and professional in the use of his own time to

- s . ,'., .

pregue anose thoroughly for classroarn assignmeras " He also noted that "[s]ince e ,

3 the m=pl**=nn of the restart hearings and avv+=ad reports thcre has been a

. areiremble improvement in his enthiniasm and morale." Husted Exh.16.

• l

.. 125. By this same time, TMI-1 management had begun a special momeonng a,...,

, '.,/*, psogram to evaluate Mr. Husted's purw and eterhh [Agg, l[ *&,7$$,

. . . . 4 .,

[', , ,

l o a l

. 1 378 1

i

.. Q

.s .

- at 3-4. 'Ihe monitoring started in the first half of 1982 and enannmad until the

- . ~ .

cod of 1983. Staff Exhs. 3 and 4, Husted Exhs. 9,14. 'Ihc monitonag ransnammt

- ... j ,

of penodic classroom teaching perfonnance evaluations, quanerty %- =

, ,y *'~. .- . .

i --

==. regular annual performaare. ev=h=nn== and penodic conaschng

'n' en anna inchadmg at Icast one meeting with the two vice pm endenen involved

,- y. ,

/ . , ' , , .'~{ '

i' . ,.. r with training and opershoes at TMI - Dr. Imag and H.D. Hakin. Staf Esk. 3;

-4 . ,7 c . J Hessed Exh.14; IAng, ff. 'R. 755, at 2-3.

- t.

)7T ' fl - j 126. As part of the soonitanng progrant, a annenranr for GPU Nuclear evalented the classrocan perfonnance of Mr. Hessed. Star Exh. 3; Hasand

't..,'

']

) N . *:y ,;i " , 'y *, ',[,? .i,}'

,* Exh.13; 'R. 796 (Imag). The project manager in a nelephnne confessation wisk Dr.Imag, on August 27,1982, stated that Mr. Hosted did not display a damaging

i =nin* The project manafer also said that Mr. Bassed was not die most i; ' . , ,

<., efective instructor, but that he was hanenny "otay" as an instructor. Hussed

. ., Exh.13, "R. 802-03 (Long).

, ,, , g 127. In Mr. Husted's 1982 =====1 evaluation, Mr. Brown saand Mr. Husted "above average" noting his "pennute of ' quality,'" and his very good per-

', ! fannance in the classroom.18 Husted Exh. 5; Brown, K 'R. 697, at 14. Mr. New-ton's naremher 1982 classroom evaluanon noted "a highly punfannannt asi-

, tude at all times." Husted Exh. 20. Characterizing his fonnel evaluation of l Mr. Husted in a memorandum to Dr. Long and Mr. HukiH dated nredwr 17, 1982, Mr. Newton found "no problems pertammg to his annade and do-sneanor," noted Mr. Husted's " professional manner," and obscsved noshing " cut of line." Husted Exh. 24. By memoraruhun of the same date, Dr. R.A. Emer, Manager Plant Thunmg, also : ==^ -t based on observation of Mr. Hassed's classroom teachmg on October 11,1982, that despue nautens atincien, "he han- ,

died the semann in a very profemannal manner in terms of bodt technical abihty ]

and nwnende " Dr. Knief also noted a " positive suitude" in the i- --

I dernannn Husted Exh.10.

1 128. In en=mentmg on Mr. Husted's perfonnance fmm Noveinher 1982

.- to January 1983, Mr. Newton wrote to Dr. Iong that Mr. Hasted's work in preparanon of the written requalification exammahon was " superb," and that

. Mr. Newton was remiss in not writing a speaal letter of rammendannn for

. Mr. Husted. Husted Exh. 25.

, 129. In March 1983, Mr. Brown remmmentled Mr. Hasted for promanon to the position of Supervisor, Nonlicensed Operator 'hauung, wish a highly favor-

• *' .~ able evaluation, noting in particular a "pontive profesnonal attitude duplayed in complying with requirements of the job." Brown, ff. 'R. 697, at 15; Hassed 1 Exh. 6; 'R. 736-37 (Brown).

+

.,m. ,

3#

, Dnius she hmmmme. Mr. Ihmen ums apsenummed as the emant to shuh is namadumd her. Emend's handsg

.e,' samenet in his munkmansk He sened est he emak aush emmemes inns maamms, het shus in sieur afins h summm.

, 3 ,, ,

k ed mas huma e sesm6 muss hemsins em shs mummE emahumas6 Ts. 7D-34 (nsumuk

. . l I

379

j 1

I 130. Before approving the prrr. notion in March 1983, Dr. Long stated that

', , he questioned the training dinctor and, through him, his staff, extensively

• ! <.  ; ,,} . . as to whether they were satisfied that Mr. Husted was able to instill a sense

, of seriousness and to maintain integrity, discipline, and appropriar:c attitudes

'7 . .2< ' .y ,

toward nuclear safety and the regulatory process. *IY. 789 (Long). After receiving

,. l'

~7 .;

.aI, ,i sufficient assurance, and consulting the Office of the President of GPU Nuclear,

x. ..'?- 7;- Dr. Long approved the promotion. Id. In his testimony, Dr. Long noted that Mr. Husted performed very effectively as Supervisor, Nonlicensed Operator

..,f'

'[ '

. 4

'11aining, until June 1984, when the Appeal Board directed that he be removed

.-/

.- i, 77 ,

s.. .

' $ f. * , , } ,,

~'

W from that position. Long, ff. 'IY,755, at 6-7.

,- 131. Following Mr. Husted's reassignment out of the 'IYaining Department l

to work on risk and reliability analysis in October 1984, Mr. Husted was rated

. as having "a very positive, enthusiastic attitude about the project" and doing

, ,, , i, o "more work than is asked of him in order to contribute and to learn." Husted 7 ,

, Exh.17.

132. Dr. Long noted no evidence, from the extensive monitoring program and evaluation of Mr. Husted, of undesirable attitudes or lack of respect for .

the training or licensing process. Long, ff. 'IY. 755, at 6. In addition to his review of the monitoring program, Dr. Long continued a monitor and meet with Mr. Husted during the past 2 years to discuss Mr. Husted's progress and

, to update his opinion on Mr. Husted's attitude toward his responsibilities. Id. at

7. Dr. Long stated that he knew of no information to indicate that Mr. Husted "has conveyed to his students or fellow workers an improper attitude toward safety, toward the regulatory process, or toward the company or NRC training processes." Id. at 8. Similarly, he had received no information that Mr. Husted was flippant, displayed less-than-serious attitude toward his work, toward safety

. concerns, or toward the NRC, or was incredible or lacked integrity. 'IY. 804 (Long). In evaluating Mr. Husted, it was Dr. Long's intention to address the concerns stated in the Licensing Board decision in the restart proceeding, and he was satisfied that any doubts about Mr. Husted's competence to instill a sense of seriousness about the important need for integrity, discipline, and public confidence in the TMI training program had been removed. Tr. 506 (Long).

Conclusion:

Mr. Husted's regular job performance rejected very positively on his attitude and did not present anything to adversely reflect on his integrity.

133. Very extensive evaluations were made of Mr. Husted's job per-

• formance over the years. They showed, overall, that his on-the job attitude has been professional and appropriate to his responsibilities. This attitude has ex-l '

. , ' - * *' ~ -

. tended to safety, the NRC, and regulatory requirements. He was able to overcome

+

the challenges that the cheating incidents caused and go on to perform conscien-4 380 i ____ _ _ -

g ..

s tiously and with enthusiasm. He was shown to be an employee who fulfilled the day-to-day job requirements of the positions he held in a more-than-adequate

~

. manner.

,, 3 3 , . .

.,,,,,. ,' F. Should the Appeal Board's Condition Barring Mr. Husted from

',7 -

,.,) ',

f' , ,- '.' Supervisory Responsibilities Insofar as the Training of Nonlicensed Persornet Is Concerned Be Vacated?

-~ .. . .s

.f ., ,'.~..4< , .., , , ,1 134. The condition imposed by the Appeal Board in TMI 1 Restart, ALAB-3,J . , m/ '

. ,' 772,19 NRC at 122124, caused Mr. Husted to be removed from the position 4, . g. , *6 9'+ ?'< , ,, . 'r ;, he held with GPU Nuclear as Supervisor, Nonlicensed Operator 'IYaining.

, . . . ' c, . , ' '

135. 'Ihe Commission in deciding to provide Mr. Husted a hearing on

'[' .

), s ~ Ji **

- ,. C whether the Appeal Board's condition should be vacated did not do so on the ba-

.~,. ,'. , ,

.;. ' sis of a determination that the law required it, but on a concept of fairness. TMI-1

, .',- ,, , 3

• Restart, CLI-85-2,21 NRC at 314-17. In instituting the proceeding, the Com-mission looked for a decision on whether the condition should be vacated based

+ f ,' , ,

on a factual determination of the issues raised by the Commission relating to Mr. Husted's conduct. The Commission never questioned or raised for review the standard used by the Appeal Board in imposing the condition. Notice of

Hearing, 50 Fed. Reg. 37,098 (1985)."

136. In imposing the condition barring Mr. Husted from supervisory re-sponsibilities insofar as the training of nonlicensed personnel, the Appeal Board -

, employed the following considerations to make its determination.

'! [Tjeacher competence . . . [ includes] the ability to communicate effectively a sense of responsibility as well as information. . . . Where. as here, so much of the training informadon

.- to be conveyed concerns the need to comply with procedures . . . the instructor's attitude

. ' toward - i.e., respect for - those procedures becomes an integral (though perhaps

,j subliminal) part of his or her ability to teach.

I To be sure, Husted will no longer be permined to train licensed operators. Moreover.

, , ~

- .

• there is no hard evidence on the record that Husted's bad attitude did, in fact, affect his

• ' teaching performance. . . . But in his new position as Supervisor of Nonlicensed Operator

- Training, not only will Husted be in a position to instruct personnel with important duties that affect the public heahh and safety, he will have certain management responsibilities. As such, Husted will presumably also have a role in establishing the criteria for training

. .; instructors and developing the audit program irnposed by the 1.icensing Board, as least

. in part, as a rtenedy for his own failure to cooperate with the NRC. . . We seriously

. . question Licensee's judgment in promoring Husted to an important position with management

* ' J responsibilities, given his documented past failure to cooperate with the NRC in its cheating investigation. . . .

};

. . .y ,.

u no Canmismon in its unpubhshed March 20.1986 Onler denying TM1A's March 4,1986 Mouan to Dumiss

'1 *

.,,,, ,t 5 posed that the Intervanor contenced that the only assue involved ou Wal, ns Cannuuton aa.d ht as to the

,. ,1 hearing offered Mr. Husted "[tjhe focus c( the heanng is not a legal one, but rather a factual determmane of ail, ,., ,

whahar the Appeal Boani's candition should remain in place."

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381 i

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TMN Restart, ALAB 772,19 NRC at 1223-24 (footnotes omitted).

137. The Appeal Board in imposing the condition did not find it necessary j

- to determine whether his unacceptable attitude toward the NRC did, in fact, j i adversely affect his teaching performance or the exercise of his management I

' responsibilities. Mr. Husted's failure to cooperate with the NRC and his actions l

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in derogation of the regulatory process were deemed sufficient flaws to disqualify i Ja

- him from holding a supervisory position that affects public health and safety. In

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effect, the Appeal Board held that his unacceptable attitude toward the regulatory

]

• ]

. process had the potential of being transmitted to others or instilled in the system 7, j ,

~, , . he was responsible for managing, all of which affect public health and safety.

- 4

', p- 138. The position of Supervisor, Nonl: censed Operator Training, relates to public health and safety. The person holding that position is responsible for

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training the auxiliary operators that work in the plant. Their functions on a H daily basis have the potential for initiating an event. They can also mitigate an event by their prompt action. The auxiliary operators are an extension of the

. licensed operators in the control roompnd their training is safety related. Tr. 736 (Brown).

- 139. The Atomic Energy Act of 1954, as amended, grants NRC broad power in dealing with the regulation of nuclear energy. Section 161(b) grants the Commission the authority to establish by rule, regulation, or order such standards to govern the use of nuclear materials as the Commission may deem necessary or desirable to protect health or to minimize danger to life or property. 42

. , U.S.C. 6 2201(b).

140. The Commission's regulations do not address qualifications for the

. position of Supervisor, Nonlicensed Operator ' Raining. However, where the holder of that position may adversely affect public health and safety because of attitudes and behavior toward the NRC and its regulatory process, the 2 .

4 Commission can take necessary action that will provide reasonable assurance that the activities authorized by the operating license will be conducted without endangering the health and safety of the public. See 10 C.F.R. 0 50.57(a)(3). This is so even if the result is to disqualify an individual from being employed in a particular job category."

,, , 141. The Appeal Board discussed the legal authority employed for imposing the licensing condition that worked against Mr. Husted.

142. In ALAB-772, the Appeal Board explained the manner in which the issues being reviewed in that decision concerning reactor operator training and management capabliity related to the underlying question as to what actions a

• - Uthe Comnussen m anforcanent acuans taken under i103 and/or i186 of the Act and apphcable segulanans

• supunns cooperinan with NRC inspeelan acnvines has conditioned 1msnses requirms the removal of parucular

,

• Individuals from at 4 ear related rw~~h Niagra Mohawk Power Corp. (Nine Ele Paint Nuclear stanon).

i 45 Fed. Reg, A U + 0980); Darreir Ediron Co. (Fermi-2). 51 Fed. Reg.25,411 (1986).

382 m_ , _ _ _ _ _ - . _ ._

"are necessary and sufficient to provide reasonable assurance that [TMI 1] can

, be operated without endangering the health and safety of the public . . ." ALAB-

, 772,19 NRC at 1202-03 (1984). Similarly, it noted that the findings that were i ,. . . . . -

anticipated from the reopened hearings on the April 1981 cheating incidents were

, important to its overall findings on the issues of Licensee management integrity.

-> ., the quality of the Licensee's operating personnel, the Licensee's ability to staff

. 3. y ,- l l '

the facility, its training and testing program, and the NRC process for testing and licensing operators. Id. at 1204.

," ~ , . . 'j 143. Although the Appeal Board noted the absence of specific standards l[-

't j for judging the integrity of Licensee's management and operation,14. at 1206, v .

..i.,,

4 it found authority for its judgments in the Atomic Energy Act, i103b, require-i .

i ment that licensees comply with Commission requirements for the protection

.. of the public health and safety, and in the provision in f182a for con:ider-5 ation of a licensee's " character." Id. at 1206-07. Finally, it observed that the Commission earlier noted that " abdication of responsibility or abdication of knowledge . . . could form an independent and sufficient basis for revoking a

(

, license . . ." based on Licensee's competence or character. While noting the absence of " precise standards against which to measure licensee's conduct," the I Appeal Board found the guidance there as a basis for appellate review. Id. at 1207-08.

144. Thus, when the Appeal Board found that an instructor of nonlicensed operators must have the ability to effectively communicate a sense of responsibil-  !

ity as well as information and respect for procedures, and used this criterion for

, i requiring, as a condition on the Licensee (GPU Nuclear), that Mr. Husted "have

'{ no supervisory responsibilities insofar as the training of non-licensed personnel is concerned," id. at 1223 24, it was doing so on the bases of the Licensee's responsibilities to protect the health and safety of the public and to demonstrate

" character." f

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145. The Appeal Board in imposing the condition upon the Licensee, j which disqualified Mr. Husted from continuing in the position he held, cited )

the authority under which it acted and the considerations it employed. The Commission in instituting this proceeding expected the same standards to be applied to the factual determination reached here. They are so applied.

146. Although the condition imposed by the Appeal Board attached to the

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license, and the Licensee was required to fulfill it, the condition also directly affected Mr. Husted. Because of that consequence, this case was considered i in the nature of an enforcement proceeding and Mr. Husted was afforded the projections provided for under the Administrative Procedure Act,5 U.S.C. I551, et seq. At no time during the course of the hearing did Mr. Husted raise any objections to the adequacy of the hearing provided him. Considering the case in the nature of an enforcement proceedmg did nothing that would alter the

.v.. ,

n  ;,. - .

e .

s 383 l

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$[ standard used by the Appeal Board in imposing the condition and applying it in this proceeding. .

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Conclusion:

The Appeal Board's condition barring Mr. Hustedfrom super-ihQ ' " . ,.

visory responsibilities insofar as the training of nonficensed personnel is con-l, cerned should not be vacated.

4 ; '"f - '

147, in applying the Appeal Board's standard for imposing the condition o3 #. barring Mr. Husted from supervisory responsibilities for the training of non-

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licensed personnel to Mr. Husted's conduct as disclosed by this hearing, it is i t .4 '

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- , . concluded that the condition imposed should not be vacated.

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148. Although the record did not show that Mr. Husted solicited an answer

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