ML20239A625
| ML20239A625 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 09/15/1987 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#387-4388 ALAB-859, LBP-86-28, LBP-86-41, OL, NUDOCS 8709180016 | |
| Download: ML20239A625 (54) | |
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.-sg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 8T SEP 15 P3 :57.
ATOMIC SAFETY AND LICENSING APPEAL BOARD V', ~.
Administrative Judges:- DOC' JUS w
. Gary J. Edles, Chairman September 15, 1987
' Christine N. Kohl- (ALAB-872)
Howard A.-Wilber SERVED SEP 161S87
)
In.the Matter of )
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GEORGIA' POWER COMPANY, et al. )-
Docket Nos. 50-424-OL
) 50-425-OL (Vogtle Electric Generating )
Plant, Units 1 and 2) )
)
Douglas C. Teper, Arlington, Virginia, (Howard Deutsch,
- Atlanta, Georgia, on the brief), for intervenor Georgians Against Nuclear Energy.
Bruce W. Churchill, Washington, D.C., (with whom Delissa A. Ridgway, David R. Lewis, and Rose Ann C.
Sullivan, Washington, D.C., and James E. Joiner, Charles W. Whitney, and John R. Molm, Atlanta, Georgia, were on the brief), fo'r the applicants Georgia. Power Company, et al.
Bernard M. Bordenick for the Nuclear Regulatory Commission staff.
DECISION This proceeding involves an application filed by Georgia Power Company on behalf of itself and several other co-owners for licenses to operate Units 1 and 2 of the Vogtle Electric Generating Plant in Burke County, Georgia.
Intervenor Georgians Against Nuclear Energy (GANE) submitted numerous contentions dealing with environmental, technical, and emergency planning issues. Many of GANE's contentions were identical to some of another intervenor, Campaign for a 8709180016 870915 -j/
PDR G
ADOCK 05000424 PDR h
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2 Prosperous Georgia (CPG). CPG later withdrew from the proceeding and thus we dismissed its appeal.1 The Licensing Board admitted some contentions, rejected a number of others at the threshold, and considered one to have been withdrawn.2 The applicants thereafter moved for summary disposition of all admitted contentions and the j l
Board granted the motions with respect to all but three matters. Hearings were held on those matters and, in due course, the Licensing Board issued two partial initial decisions in which it found in the applicants' favor on those counts as well.4 I
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ALAB-851, 24 NRC 529 (1986).
J See, e.g., LBP-84-35, 20 NRC 887, reconsideration j denied, LBP-84-49, 20 NRC 1457 (1984); Memorandum and Order I of September 12, 1985 (unpublished). I See, e.g., Memorandum and Order of August 21, 1985 (unpublished); Memorandum and Order of September 3, 1985 (unpublished); Memorandum and Order of October 3, 1985 (unpublished), reconsideration denied, Memorandum and Order ,
of December 3, 1985 (unpublished) ; Memorandum and Order of l November 5, 1985 (unpublished) ; Memorandum and Order of l November 12, 1985 (unpublished), reconsideration denied,
. Memorandum and Order of January 6, 1986 (unpublished);
Memorandum and Order of November 25, 1985 (unpublished);
Memorandum and Order of May 5, 1986 (unpublished);
Memorandum and Order of May 12, 1986 (unpublished); .
Memorandum and Order of May 15, 1986 (unpublished); I Memorandum and Order of May 22, 1986 (unpublished);
Memorandum and Order of July 17, 1986 (unpublished).
See LBP-86-28, 24 NRC 263 (1986); LBP-86-41, 24 NRC 901 (1986), as modified, ALAB-859, 25 NRC 23 (1987).
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i GANE appeals from a portion of the Licensing Board's first partial initial decision, in addition to numerous 1
prior rulings rejecting certain of.its contentions and granting most of the applicants' motions:for summary disposition. :GANE also asks that we reopen the record with respect.to one contention earlier rejected by the Board.
The applicants and the NRC staff oppose GANE's appeal. As explained below, we affirm each of the Board's challenged rulings and deny the request to reopen the proceeding. We !
have also conducted our. usual sua sponte review of the
- entirety of both partial initial decisions and the underlying record 5 and find no error that warrants corrective action. ]
I. Matters Inadequately Presented on, or Preserved )
for, Appeal i A. As we have from time to time observed, the Commission's Rules of Practice require that an appellant's brief clearly identify the errors of fact or law that are >
the subject of the appeal. For each issue appealed, the precise portion of the record relied upon in support of the J assertion of error must be set out.6 The brief must also contain " sufficient information and cogent argument to alert 5
See ALAB-859, 25 NRC at 27 and cases cited; Appeal Board Order of February 2, 1987 (unpublished).
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s the-other parties and the appellate tribunal to the precise nature of and support for the appellant's claims."7 We do not generally entertain matters.that are not fully briefed.8 !
t In this connection, it is not sufficient for a party merely to repeat a contention and its purported basis, or to reassert proposed findings or arguments and information rejected by the Licensing Board.9 Parti 7s thus must. bear the risk of any failure to brief matters adequately.10 Our requirements in this regard are not unlike those of other administrative agencies and the courts.11
' Among tho matters GANE appeals is the Licensing Board's-rejection of its contentions 1, 4, 6, 9, 10.2, 10.9, and 11 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), ALAD-843, 24 NRC 200, 204 (1986).
8 Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49-50 (1981), aff'd sub nom. Township of Lower Alloways Creek v.
Public Service Electric ~I Gas Co., 687 F.2d 732 (3d Cir.
1982).
9 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 69, reconsideration denied, ALAB-844, 24 NRC 216 (1986); Long Island Lic hting Co. . (Shoreham Nuclear Power Station, Unit 1), ALAB-1:2;, 23 NRC 9, 11 (1986).
10 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRC 048, 870 n.76 (1984).
11 Sce, e.g., Bonne-Annee v. INS, 810 F.2d 1377 (11th Cir. 1987); Mitchel v. General Electric Co., 689 F.2d 877 (9th Cir. 1982).
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(in part) . These concern, respectively, the accuracy of certain estimates of radiological releases in the i
applicants' Final Safety Analysis Report (FSAR) ; the health l
'affects allegedly produced by transmission lines; thermal shock; the safety of a newly designed pipe restraint system; )
the synergistic effects of radiation, heat, and oxygen; the )
seismic qualification of plant equipment; and defects in the steam generator system.12 In each case, however, GANE's brief simply sets forth a challenge to the Licensing Board's action in a cursory fashion or repeats assertions rare at earlier stages of the proceeding without any genuine effort to address the Licensing Board's rationale for decision.13 12 See LBP-84-35, 20 NRC at 911-13, 915-16, 897-98, ,
902-03, 903-04, 907; LDP-84-49, 20 NRC at 1458-59. Except in the case of contention 9 (which the Board treated as withdrawn), the Board determined that these contentions lacked adequate basis or specificity or both. See discussion infra p. 10 and note 24.
13 See GANE Appeal, Brief and Proposed Findings (October 8, 1986) [hereinaf ter "GANE Brief"] at 2-3, 4, 6, 15, 16, 19, 19-20. We note that insofar as contention 11 is concerned, GANE's brief is confined to that portion --
rejected by the Licensing Board at the outset -- that concerns steam generator defects caused by stress corrosion cracking. GANE does not challenge, and thus we need not address, the Board's subsequent summary disposition of the remainder of the contention (i.e., defects attributable to vibration-induced fatigue cracking and bubble collapse).
See id. at 19-20; Memorandum and Order of September 3, 1985.
GANE's " argument" with regard to contention 9 is particularly unavailing. This contention complained that the applicants had failed to provide "even the minimal (Footnote Continued)
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GANE also elected not to elaborate on its assertions at oral I argument. j In denying the applicants' earlier motion to strike i
l GANE's brief for, among other things, its failure to conform to the Commission's requirements, we noted that GANE would nevertheless have to " bear the risk of shortcomings in its brief."14 That risk is now realized, for the circumstances oblige us to reject on the ground of inadequate briefing, and thus to treat as waived, GANE's arguments in regard to contentions 1, 4, 6, 9, 10.2, 10.9, and 11.15 (Footnote Continued) information required to understand and assess the safety repercussions of [the] innovative design" of a certain pipe restraint system. LBP-84-35, 20 NRC at 902. The applicants agreed to provide GANE with the proprietary information in question (under protective order), after which GANE agreed to amend or to withdraw the contention. Ibid. See also Tr.
65-71. GANE received the information (GANE Brief at 15),
but filed nothing with the Licensing Board. The Board accordingly and properly treated the contention as withdrawn. See LBP-84-35, 20 NRC at 902-03. See also 10 CFR 2.707. GANE now objects that the applicants' information on this score is " preposterous," and implies that unspecified regulatory requirements have not been met. GANE Brief at
- 15. Not only does GANE wholly fail to explain its viewpoint (as in the case of contentions 1, 4, 6, 10.2, 10.9, and 11),
it also impermissible makes this cryptic claim for the first time on appeal. See infra p. 9.
14 Appeal Board Memorandum and Order of October 27, 1986, at 3-4 (unpublished).
15 GANE also briefly refers to the Licensing Board's
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rejection of its contention 3, which essentially concerned the fear and consequent psychological impact of living adjacent to a nuclear power plant. The Board found that this contention was prohibited by the Commission's Policy (Footnote Continued)
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7 B. GANE also appeals the Licensing Board's grant of the applicants' motions for summary disposition of contentions 10.3 (environmental qualification of EPR cable material in multiconductor configurations), 10.7 (environmental qualification of hydrogen recombiners) , 13 (emergency planning) , and 14 (reliability of TDI diesel generators).'_6 Each of the applicants' motions was accompanied by one or more supporting affidavits and a statement of material facts for which it was alleged no hearing was required. The NRC staff supported all of the motions, supplying its own affidavits as well. After (Footnote Continued)
Statement on " Consideration of Psychological Stress Issues,"
47 Fed. Reg. 31,762 (1982). The Board also noted the <
Supreme Court's holding in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) [ hereinafter
" PANE"), that the National Environmental Policy Act of 1969, 42 USC 4321, does not require consideration of the ,
psychological impacts of living near a nuclear plant. !
LDP-04-35, 20 NRC at 915. GANE states that, if the Board is )
in fact constrained "from above" from admitting contention {
3, then it does not appeal this issue. GANE Brief at 3-4. )
i The Licensing Board was, in fact, bound by the '
Commission's Policy Statement on psychological stress issues, and the Board correctly applied it in dismissing GANE's contention 3. Moreover, the Commission has recently revoked this Policy Statement as obsolete, noting that it has been superseded by the Court's decision in PANE. See 52 :
Fed. Reg. 20,592 (1987). Thus, psychological stress is not ;
a litigable issue in NRC licensing proceedings. I 16 See, respectively, Memorandum and Order of August 21, 1985; Memorandum and Order of November 5, 1985; Memoranda and Orders of May 5, 12, 15, and 22 and July 17, 1986; Memorandum and Order of November.25, 1985.
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8 carefully. evaluating these presentations in each instance, the Licensing' Board found "no genuine issue as to any material fact" -- the standard for summary disposition --
and-thus dismisse~d these four contentions.1 The Commission's Rules of PracticeLexplicitly' invite replies to summary disposition motions, "with or without affidavits."I8 A failure to~ respond with evidentiary l material to'such a motion -- although obviously risky --
does not automatically signal a grant of summary disposition. The movant still-retains the burden of proving
"' the absence of genuir= issues of material fact.19 In the case of contentions 10.3, 10.7, 13, and 14, however, GANE i
,- filed no response whatsoever to applicants' motions for summary disposition, thereby depriving the Licensing Board of the benefit of GANE's' views on the motions. O GANE J
17 10 CFR 2. 749 (d) .
18 10 CFR 2.749(a).
19 Cleveland Electric Illuminating Co. (Perry Nuclear Power. Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 752-54 (1977) (citing Adickes --
- v. S.H. Kress and Co., 398 U.S. 144, 157-61 (1970)).
20 GANE claims that it did reply to the motion for summary disposition of centention 14 and attempts to incorporate this alleged reply (for which it provides no date citation) by reference into its appellate brief. GAUL Brief at 21.. The applicants, NRC staff, and Licensing i Board, however, all state that they never received this pleading. Applicants' Brief (November 14, 1986) at 68; NhC (Footnote Continueu)
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-therefore raises its arguments in connection with.these four contentions for the first time on appeal. It is well-established in NRC proceedings that, absent "a serious substantive issue as to.which a genuine problem has been demonstrated," arguments that could have been presented below, but were not, will not be entertained on appeal.21 GANE's arguments here reveal no such serious issue. Indeed, it offers'no real argument at all as to contentions 10.3 and 13, simply noting its disagreement with the Board's rulings.22 As for contentions 10.7 and 14, the points GANE briefly mentions were,'in fact, discussed by the Licensing Board in its summary disposition rulings, but GANE makes no attempt to explain why the Board erred in its analyses.23 (Footnote Continued)
Staff Brief (November 26, 1986) at 42; Memorandum and Order of November 25, 1985, at 1-2. We have likewise searched the record and have found no reply by GANE to the applicants' motion for summary disposition of contention 14, 21 Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, IB, and 2B), ALAB-463, 7 NRC 341, 348 (1978).
See GANE Brief at 16-17, 20. Hence, GANE's appeal on these two contentions also fails to conform to the Commission's briefing requirements. See supra pp. 3-4.
For instance, GANE argues thet the " production model" of the Vogtle hydrogen recombiners (contention 10.7)
"has never been tested." GANE Brief at 18. The Licensing Board, however, fully described the testing of this equipment and its adequacy. Memorandum and Order of November 5, 1985, at 3-6. GANE also complains that the problems with TDI diesel generators (contention 14),
(Footnote Continued)
10 We therefore conclude that GANE's appeal from the Licensing Board's disposition of contentions 10.3, 10.7, 13, and 14 fails.
II. Other Contentions Rejected 4.t the Threshold In additicn to the contentions discussed in section I.A, GANE challenges the Licensing Board's refusal to admit contentions 2 and 5, relating to certain cumulative environmental effects and the seismic evaluation of the Vogtle plant, respectively. The principal reason for the Board's rejection of these contentions (as well as those already discussed above) is their lack of basis and specificity, as required by 10 CFR 2.714 (b) . In each
, case, we uphold the Board's action.
A. GANE's contention 2 asserts that the cumulative !
l environmental effects of "the addition of Plant l
l (Footnote Continued) documented in thousands of pages of reports, have "not been rectified." GANE Drief at 21. But again, the Board I i
adequately dealt with this matter, concluding that the TDI problems applicable to Vogtle either have been corrected already, or are being resolved in ongoing engineering reviews under a program that GANE did not challenge.
Memorandum and Order of November 25, 1985, at 5.
24 See Philadelphia Electric Co. (Limerick Generating I Station, Units 1 and 2), ALAB-845, il NRC 220, 230-31 (1986)
(discussing the basis and specificity requirements and citing Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21, modified on other grounds, CLI-74-32, 8 AEC 217 (1974)).
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11 Vogtle within 20 miles of the- [ Savannah- River Plant]" have not been adequately quantified and' assessed.25 .In support of this contention, however, GANE relied heavily on the fact that the Department of Energy -(DOE) has for many years operated the Savannah River Plant (SRP) in connection with j l
the production of nuclear weapons, and that DOE now proposes to reactivate its so-called "L-reactor" at SRP in order to I increase the production of plutonium and tritium for the l nation's defense program. 6 The Licensing Board found the {
contention inadmissible for essentially three reasons.
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' - First, it failed "to address, except in vague, unmeaningful !
i terms, the incremental impact of Vogtle." Second, it failed to show "how or why the assessment of 62P releases contained in the Vogtle FSAR is in error or needs to be reexamined."
Third, GANE's concerns are primarily with the SRP, over which the Department of Energy, rather than the NRC, has responsibility.27 On appeal, GANE objects to the Licensing 25 Specifically, contention 2 reads: " Applicant has failed to assess the environmental and public health effects L
of the addition of Plant Vogtle within 20 miles of SRP and to quantify this factor in its consideration in violation of 10 C.F.R. 20.103, 50. 34 (a) (4) , 51.21, 51.23(b), 104, 105, j 106 and 201." LDP-84-35, 20 NRC at 913. j
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6 See GANE Supplement to Petition for Leave to !
Intervene and Request for Hearing (April 11, 1984) l (hereinafter "GANE Supplement"] at 3; untitled GANE filing f (June 13, 1984) [ hereinafter "GANE's Amended Contention 2"]. !
27 LBP-84-35, 20 NRC at 914.
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Board's " jurisdictional" ruling with regard to DOE and i
argues that contention 2 did focus on the additional impacts attributable to'the Vogtle plant.28 We agree, however, with I
.the Board's rejection of the contention.-
As the Licensing Board correctly pointed out, GANE's filings in connection with contention 2 consisted primarily 4
of a discussion of radioactive releases from the Savannah ')
River Plant and groundwater contamination resulting from those releases.29 GANE did not challenge any applicant or NRC staff calculations regarding releases from the Vogtle plant. Although the contention cites NRC regulations, it does not explain how releases from Vogtle might exceed
,, regulatory standards or result in any more than a de minimis impact on the environment overall. Apart from a highly generalized assertion that it is necessary to quantify properly the extent of the Savannah River Plant releases in order to be able to evaluate any incremental effect of releases from Vogtle in the event of an accident, GANE O
GANE Brief at 3 9 Over the applicants' LBP-84-35, 20 NRC at 914.
objection, the Licensing Board allowed GANE to expand upon its original filing, both orally and in writing. Id. at 914 n.3.
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did not attempt to correlate the'likely additional releases from Vogtle with any meaningful environmental.effect. Its-argument.is simply that any radiological releases from Vogtle will-aggravate another situation already unacceptable to GANE due to operations conducted ~at the Savannah River Plant, including, Particularly, the proposed reactivation of
. the L-reactor. Thus, the' Licensing-Board fairly construed GANE's contention 2 as lacking a reasonably specific relationship to matters within the NRC's' domain.
GANE has also conceded that DOE has evaluated the potential cumulative effects from the operation of SRP and Vogtle in light of its proposal'to restart the L-reactor, e and that, if DOE's assessment is correct, "the' radiological health effects of-[the Savannah River Plant]'and Vogtle on the populations at risk are trivial by comparison to background radiation."30 GANE, however, argued below that DOE's draft and final environmental impact statements are flawed and that, as a consequence, there is no way to measure any cumulative effects from the addition of Vogtle.
GANE's Amended Contention 2, Statement of W. F. ,
Lawless (June 7, 1984) at 3.
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But the Licensing Board correctly suggested that GANE direct 1
such arguments to DOE, the agency responsible for SRP.
The NRC has no obligation -- particularly here in the circumstances of the wholly unrelated Vogtle and SRP facilities -- to duplicate DOE's review.
B. GANE's contention 5 challenges the seismic evaluation of the Vogtle plant. More particularly, GANE argues that the applicants have not properly taken into account recent data regarding either the so-called Millett Fault or the 1886 Charleston earthquake.33 After deferring !
its ruling, in part, pending the receipt of more informa-tion, the Board eventually rejected both aspects of conten-tion 5 for lack of a basis.34 We affirm the Board's 1
rulings.
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- 1. Hillett Fault. As the Licensing Board ex-plained, GANE rested its contention, in part, on information released in 1982 by the U.S. Geological Survey (USGS) re-lating to the postulated Millett Fault, about seven miles from the Vogtle site. Following issuance of that report, 1
31 LBP-84-35, 20 NRC at 914.
32 See Limerick, ALAB-785, 20 NRC at 874. See also Crounse Corp. v. ICC, 781 F.2d 1176, 1194-95 (6th Cir.
1986).
GANE Brief at 4-6.
34 LBP-84-35, 20 NRC at 896-97; Memorandum and Order of September 12, 1985.
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l the applicants made a further study to determine if the i
fault exists and found no such evidence within the depths to 1
which its study extended. The applicants also found that, j even if a fault existed at a depth below which it investigated, such fault would not be " capable" in view of the age of the undisturbed overlying sediments.35 This i information was made available to USGS and, in a 1983 USGS j 3
report written by one of the authors of the earlier document, the Millett Fault was not included among documented faults in the eastern United States.36 Noting
- that "GANE offered no basis in support of its allegation that the Millett Fault exists, is capable and should be l
considered," the Licensing Boart. thereafter rejected this portion of contention 5.3 GANE asserts that the Board should not have discounted the existence and capability of the Millett Fault. A 35 A " capable fault" is a fault that has exhibited one or more of the following characteristics: movement at or near the ground surface at least once within the past 35,000 years or movement of a recurring nature within the past 500,000 years; macro-seismicity instrumentally determined with records of sufficient precision to demonstrate a direct relationship with the fault; a structural relationship to a capable fault such that movement on one could be reasonably expected to be accompanied by movement on the other. See 10 CFR Part 100, Appendix A, III (g) .
See Applicants' Response to GANE and CPG Supplements to Petitions for Leave to Intervene (May 7, 1984) at 33-35; Tr. 13.
37 LBP-84-35, 20 NRC at 896.
4 16 licensing board, of course, may not reach the merits of a factual controversy when considering the admissibility of O
contentions. But here, the contention rests squarely on a factual underpinning that has been essentially repudiated by its original source (USGS), and the intervenor offered no independent information to support its allegation. In the circumstances, the Licensing Board acted reasonably in dismissing the contention.
- 2. Charleston Earthquake. The large earthquake of 1886 at charleston, South Carolina, dominates the seisraic analysis for plants in the southeastern United States. In the 1974 proceeding authorizing the construction permit for Vogtle, the Licensing Board noted that the Charleston earth-1 quake (the epicenter of which was 104 miles from Vogtle) produced an intensity at the Vogtle site of no greater than l VII on the Modified Mercalli Intensity Scale. Given the consensus view of government agencien at the time that any repetition of a Charleston-type earthquake would be confined to the Charleston area,39 the Board approved a plant design j i
l 38 Limerick, ALAB-845, 24 NRC at 230.
39 See Safety Evaluation of the Alvin W. Vogtle Nuclear Plant, Units 1, 2, 3, and 4 (Supp. 1, May 1, 1974), Appendix H (Letter from Director, USGS, to L. Manning Muntzing, l Director of Regulation, U.S. Atomic Energy Comm'n) . See generally South Carolina Electric & Gas Co. (Virgil C.
Summer Nuclear Station, Unit 1), LDP-73-11, 6 AEC 213, 218, 225, modified and aff'd, ALAB-ll4, 6 AEC 253 (1973).
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. l 17-intended'to with' stand a recurrence of a' Charleston-type
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everit. O In 1982, however, the USGS clarified somewhat its position on the Charleston earthquake.. It continued to
-acknowledge that there was no evidence to show that regions other than Charleston had experienced strong earthquakes and indicated, further,:that the. probability of strong ground motion due to an earthquake at other eastern seaboard
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i locations "may be very low."41 LBut it observed that "the historical record-is not, of itself,-sufficient grounds for ruling out the occurrence in these other regions of strong seismic ground motions similar to those experienced near Charleston in 1886."42 USGS nonetheless reiterated its
+ historic position that seismic engineering parameters be predicated on the assumption that earthquakes similar to the Charleston event would occur only in the vicinity of-Charleston, although it recommended that the Commission i
undertake evaluations of seismic hazard for individual ,
plants. Pointing to that USGS clarification, GANE claims ,
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40 See Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1, 2, 3, and 4), LBP-74-39, 7 AEC 895, 914 (1974 ) , af f ' d , ALAB-37 5, 5 NRC 4 23 (1977).
4 NRC Staff Response to Licensing Board Letter of July '
i 12, 1984 (July 23, 1984) (attached letter (November 18, 1982) from James F. Devine to NRC).
42 Ibid.
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contention.
The Board, in fact, initially deferred ruling on this i
aspect of GANE's contention. Instead, it specifically L solicited the staff's and other parties' comments on, not only the 1982 USGS position on the Charleston earthquake,
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but also a more recent report that considered Vogtle specifically, NUREG/CR-3756, " Seismic Hazard Characterization, of the Eastern United States" (April i.
1984).43 With the Board's permission, the. staff addressed l s this matter in its subsequent Safety Evaluation Report (SER) for the Vogtle plant.44 Despite being given the opportunity to comment on the SER, GANE did not do so.4 As the Licensing Board discussed, the SER expressly evaluates the USGS clarification, NUREG/CR-3756,'and more 1 i recent reports and studies of the Charleston' earthquake as recommended by USGS. The SER essentially reiterates, however, the staff position at the construction permit phase, that the seismic design of Vogtle is adequate in 43 LBP-84-35, 20 NRC at 896-97.
44 See NUREG-1137, " Safety Evaluation Report Related
- e the Operation of the Vogtle Electric Generating Plant, Units 1 and 2" (June 1985) [ hereinafter " June 1985 SER").
45 Memorandum and Order of September 12, 1985, at 2, 3.
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l' light of existing information concerning the Charleston I
earthquake.46 The applicants' FSAR is to the same effect.47 GANE does not challenge those analyses. We therefore agree with the Licensing Board -- after its thorough consideration of the matter -- that there is no basis for GANE's contention that "new" (i.e., 1982) " data" from the USGS have not been properly assessed.48 III. Quality Assurance Contention A significant portion of GANE's appellate brief (and virtually all of its oral argument before us) is devoted to a cht.'.lenge to the Licensing Board's summary disposition of the contention dealing with alleged quality assurance deficiencies. GANE and former intervenor CPG tendered identical contentions alleging generally that the applicants had failed to enforce a quality assurance (QA) program 46 See June 1985 SER at 2-36 to 2-38, 2-44 Id. at 4.
to 2-46.~-
47 See Vogtle Final Safety Analysis Report (Amendment 7, 11ay 1984) , SS 2.5.2.1, 2.5.2.3, 2.5.2.4.
48 See LDP-84-25, 20 NRC at 896 (statement of contention 5); Memorandum and Order of September 12, 1985, at.4. We note that in Sonth Carolina Electric & Gas Co.
(Virgil C. Summer Nuclear S :.ation s Unit 1), ALAB-710, 17 NRC T
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l 25, 26-27 (1983), we evaluated the same 1982 USGS position on the Charleston earthquake. We concluded that it provided no ground for reconsidering the Licensing Board's previous I
findings of adequacy of the seismic design of that South Carolina plant.
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(including quality control (OC)) at Vogtle.49 They pointed to violations of Commission regulations, alleged defects in equipment, imposition of a civil penalty against the company, and allegations of drug and alcohol use at the construction site to illustrate what GANE described as
"[t]he complete failure of the OA/QC program at Vogtle."50 They also alleged that "[t]he number of past and continuing failures of the Georgia Power /Bechtel OA/0C program represents a pattern which indicates an undue risk to the health and safety of the public."51
. Notwithstanding the applicants' and the staff's protests (including the claim that the proffered QA
, contentions were too vague for neaningful, focused litigation), the Licensing Board noted its concern that the matters cited by GANE and CPG might have an impact on the operational safety of the plant. The Board thus admitted the contentions but directed the parties to confer about more specific wording.52 In due course, GANE's and CPG's I
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49 See GANE Supplement at 16; CPG Supplement to Petition for Leave to Intervene and Request fcr Hearing (April 11, 1984) at 14. See generally 10 CFR Part 50, Appendix B (quality assurance requirements) .
50 GANE Supplement at 21.
51 Id. at 19.
LBP-84-35, 20 NRC at 900-02. But see Duke Power Co.
(Footnote Continued) j
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l j' 21-1 contentions were consolidated, restated, and admitted, as
-follows:
Applicants have not and will not implement a-quality assurance program for Plant Vogtle for o
welding, for properly documenting the placement of concrete, for adequately testing concrete, for the preparation of correct concrete quality test j records, for procuring material and equipment that meet applicable standards, for protecting i equipment and for taking corrective action as required. so as to adequately provide for the safe functioning of diverse structures, systems and l components, as required by 10 C.F.R. Part 50, ;
Appendix B, such that reasonable assurance exists !
that operation of the facili g3will n t endanger the public health and safety Thereafter, the applicants tendered a motion for summary ]
disposition, accompanied by ten affidavits, a statement of assertedly undisputed material facts, and a host of reports, {
1 letters, and other information bearing on the issue of I
quality assurance.54 The NRC staff iiled an answer supporting the motion.55 Its filing included affidavits from Ftaff members with inspection responsibilities at i
(Footnote Continued) )
(Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC I 460, 466-67 (1982) , rev'd in part on other grounds, CLI-83-19, 17 NRC 10TT T1983) (conditional admission of contentions in prohibited). I 53 LBP-84-49, 20 NRC at *.462.
54 Applicants' Motion for Summary Disposition of Joint Interveners' Contention 8 (Quality Assurance) (June 24, 1985) [ hereinafter " Summary Disposition Motion").
NRC Staff Response to Applicants' Motion for Summary Disposition of Contention 8 (August 5, 1985) [ hereinafter
" Staff Response"). l l
22 Vogtle, attesting to the overall effectiveness of the quality assurance program.
The interveners opposed the motion but did not present any rebuttal affidavits.56 Rather, relying on information earlier submitted, they presented three principal arguments.
First, they claimed that the motion was premature because the NRC's Advisory Committee on Reactor Safeguards had not j i
yet offered its views on the Vogtle project, and the I l
interveners had yet to identify their witnesses or to l complete their investigation of alleged quality ass:rance
- breakdowns. They indicated that they would be prepared to rebut or to impeach the applicants' case by way of testimony or cross-examination when hearings on the contention were ,
l held. Second, they asserted that the applicants had I improperly relied on their so-called Readiness Review l Program in an effort to excuse a failure to comply with Commission quality assurance requirements.57 In the b6 Response to Applicants' Motion for Summary Disposition of Interveners' Contention 8 (July 31, 1985)
[ hereinafter
- Interveners' Response"). 1 57 The Readiness Review Program is described in the affidavit of W.C. Ramsey, the program manager, appended to the applicants' motion for summary disposition. It is characterized as a " pilot" program designed to " gain added assurance of the operational readiness of the Vogtle" plant.
Summary Disposition Motion, Ramsey Affidavit at 3.
According to the affidavit, the program is not intended to supplant the usual quality asserance program but is supposed (Footnote Continued)
I ,
23-interveners' view, the discovery.of. quality assurance breakdowns by the Readiness Review Program,- in fact, demonstrated a. breakdown in the quality assurance program.
Third, they alleged that material' facts were in issue. In their view, the information they had submitted was sufficient to. justify further exploration at a hearing. In this connection, the interveners made clear that they were not suggesting that the quality assurance failures they presented as illustrations were individually of any concern.58 Instead, they were disturbed over
~
- the ?attern of. problems, not the specific examples of that pattern. That correction has been or will be performed for the specific examples cited by
- Interveners is in no way a response to the contention.concerning the pattern. . . .
The question of whether individual problems have f been solved avoids the Interveners' and the Board's concern about root causes ggd generic implications of the QA breakdowns.
The Licensing Board granted the applicants' motion. As )
I a threshold matter, it noted that the Advisory Committee or. 1 Reactor Safeguards had recently issued its report on Vogtle (which did not affect the QA issue) . Next, it found that i
(Footnote Continued)
"to increase the assurance that quality program activities at Plant Vogtle have been accomplished in accordance with regulatory requirements." Id. at 4-5.
Interveners' Response at 5.
59 Id. at 12 (emphasis in original) .
4 24 the' applicants' statement of undisputed material facts was
" correct and complete'on the issues."60 The Board indicated that the affidavits cevealed that the quality assurance program met applicable regulatory requirements and functioned in accordance with the intent of the Commission's regulations. The Board took account of the alleged material facts on which the interveners relied but concluded that the interveners' presentation, including the promise to provide further information, was insufficient to establish the existence of conflicting material facts. The Board
, ,. observed:
' Joint Interveners offer nothing substantive and specific beyond the discrepant situations dealt
, with by Applicants, which they do not controvert; nor do they offer anything specific and probative in support of their allegation thagythe [ quality assurance e * , gram) is not working.
The Board also rejected the argument that the Readiness Review Program was simply a substitute for an adequate quality assurance program. It characterized this program as "an overlay to [the quality assurance) effort serving to increase the confidence of management in the operational readiness of [Vogtlel."62 Finally, the Board evaluated the 60 Memorandum and Order of October 3, 1985, at 6.
6 Id. at 7.
62 Ibid.
25
" discrepant situations" identified by interve ors and observed that "none'. . . has been shown to ;arry any material safety significance with respect to plant operation nor does the totality of them indicate a pervasive breakdown of Applicants' [ quality assurance program]. 63 The interveners sought reconsideration of the Board's determination "and/or a continuance of the Board's ruling . . . to permit proper affidavits to be prepared in response to Applicant's Motion for Summary Disposition."64 The interveners maintained that, contrary to the Board's
- finding, material facts were present. In this connection, they referred to " specific hardware deficiencies" and
" undiscovered specific deficiencies to confirm a pervasive breakdown in the QA/QC program."00 As to the former, the interveners acknowledged that they had not presented evidence to challenge the applicants' representation that specific deficiencies had been corrected; they were unprepared, however, to concede that corrections had been made. As to the latter, the interveners argued that, "if they were granted time to prepare for hearing (,] . . .
63 Id. at 9.
64 CPG /GANE Motion for Reconsideration (October 28, i 1985) at 1. (
65 Id. at 8.
I l
I 26 former workers and/or site employees would testify to the pervasive breakdown by demonstrating specific, uncorrected deficiencies."66 In this connection, they included as part of their submission an affidavit from the Director of the Environmental Whistleblower Protection Clinic. She asserted that .she had been contacted by current and former Vogtle employees regarding deficiencies and that [i]f the Board grants the Motion for Reconsideration all workers who have contacted GAP [the Government Accountability Project) or the Environmental Whistleblower Protection Project will be apprised of the opportunity to participate in [the]
hearings" and "[a]ffidavits from those who agree to participate will be submitted."67 The interveners also reiterated their earlier assertion that the Board impermissible relied on evidence about the Readiness Review Program to establish the applicants' compliance with the Commission's quality aaanrance requirements. In GAtIE's view, the Readiness Review Program revealed deficiencies that demonstrated generic problems at Vogtle.68 I
l 66 Id. at 9.
67 Id., Affidavit of Billie Pirner Garde at 2.
68 Id. (Motion) at 9-10.
4 27 The Board denied the request for reconsideration or a continuance.69 It found that the interveners had presented
}'
no rebuttal to the affidavits of the applicants and the NRC staff demonstrating that deficiencies had been discovered and resolved, that there had been no breakdown in the quality assurance program, and that the program was I
effective. The Commission's regulations and case law, the Board remarked, "do not allow for successful opposition to the motion [for summary disposition] on the basis of unsupported allegations or on hopes of.what may be developed if one could obtain additional time." 0 We find nothing in GANE's presentation that undermines [
the Board's determination. In reviewing the Board's ruling and GANE's arguments, it is necessary to bear in mind the standard by which quality assurance compliance is to be tested. As we noted in our Callaway opinion:
In any project even remotely approaching in magnitude and complexity the erection of a nuclear power plant, there inevitably will be some construction defects tied to quality assurance lapses. It would therefore be totally unreasonable to hinge the grant of an NRC l operating license upon a demonstration of error-free construction. Nor is such a result mandated by either the Atomic Energy Act of 1954, as amended, or the Commission's implementing regulations. Whht they require is simply a finding of reasonable assurance that, as built, t
69 Memorandum and Order of December 3, 1985.
O d at 6.
Id.
28
)
the facility can and will be operated without endangering the public health and safety. . . .
[T]his inquiry necessitates careful consideration of whether all ascertained construction errors have been cured. Even if this is established to i be the case, however, there may remain a question whether there has been a breakdown in quality assurance procedures of sufficient dimensions to raise legitimate doubt as to the overall integrity of the facility and its safety-related structures and components. - A detaonstration of a pervasive failure to carry out the quality assurance program mightwellstanglin the way of the requisite safety finding.
The gist of the interveners' claim below, and GANE's argument on appeal, is that the cited deficiencies are evidence of a pattern that suggests a high likelihood that some structure, system or component will eventually fail, and that, given a hearing, "whistleblowers" could confirm failings (including uncorrected deficiencies) in the Vogtle quality assurance program. But GANE's arguments are unpersuasive.
In the first place, both the applicants and the staff tendered extensive affidavits analyzing each of the supposed quality assurance deficiencies cited by the interveners, nr.d explaining how aach had been resolved. GANE did not attempt to rebut by way of countervailing affidavits the applicants' assertion that no material issues were in dispute.
71 Union Electric Co. (Callaway Plant, Unit 1),
ALAB-740, 18 NRC 343, 346 (1983). See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and
- 2) , ALAB-756, 18 NRC 1340, 1345 (1983).
/
L 1
F 29 Moreover, in its response to the motion for summary disposition, and in its brief on appeal and at oral argument, GANE has not demonstrated that any known construction defects have gone unattended. Indeed, it acknowledged at oral argument that it was not attacking'the resolution of discrete errors uncovered during the course of construction. We, too, are satisfied that all ascertained construction errors have been properly cured.
To be sure, as in any project of like magnitude, there were a number of deficiencies uncovered during the course of construction of the Vogtle plant. But, as noted earlier, the fact that deficiencies occur during the course of con-
' struction of a nuclear power plant does not mean that there has been a pervasive failure of the quality assurance program or that the plant is unsafe. At Vogtle, some of the deficiencies noted by the interveners were uncovered by the applicants during the normal course of their quality assurance review. This constitute, evidence that the applicants' program was working as intended. Other deficiencies were uncovered by the NRC staff as part of its inspection responsibility, and notices of violation were issued. The applicants pointed out, however, that they 2
App. Tr. 13.
l
7 ,
{ .
30 never received any violations above Severity Level IV.73 And the NRC staff submitted affidavits from staff employees l
with inspection responsibilities, indicating that the deficiencies were generally of a type to be expected in projects of this size and did not indicate a pervasive breakdown'in quality assurance.74 Those affidavits were unrebutted. GANE even seemed to concede at oral argument .
thent the. applicants have "done the big things correctly." 5
-In the circumstances, we thus conclude that the Licensing Board properly found, from the information submitted, that all material evidence was known and uncontroverted and that no ger.uine challenge to the efficacy.of the. applicants'
' quality assurance program (i.e., no pervasive breakdown or pattern of failures) had been presented.
73 Summary Disposition Motion at 78. The NRC divides violations into five levels of severity, with Severity Level I being the most severe and Level V the least severe.
Violations at Levels I and II are considered to be of "very significant regulatory concern" and Level III violations are considered of "significant concern." Level IV violations are "less serious but more than minor concern," and Level V violations are considered to be of " minor safety significance." See 10 CFR Part 2, Appendix C, III. See also Long island Lighting Co. (Shoreham Nuclear Power ,
Station, Unit 1) , ALAB-788, 20 NRC 1102, 1143 n.238 (1984). '
See, e.g., Staff Response, Affidavits of Edward H.
Girard at 3-4, John R. Harris and Joseph J. Lenahan at 12-14, and William P. Kleinsorge at 2-4.
75 App. Tr. 15.
1 i.
31 a
We'also believe that the Licensing Board was not
. required to deferithe proceeding on the-basis of.the-interveners' unsupported. promise that some potential ~
~
witnesses might eventually step forward to lend support to their clahn. of ' quality assurance lapses. .As GANE pointed out at oral argument, it began receiving information from' Vogtle workers.even before the licensing proceedings began ~.76 The interveners advised the Licensing' Board as f i
early as the 1984 prehearing conference that they were {
4 receiving allegations about the asserted inadequacy of the 1 quality assurance program from individuals "inside the industry as well as once in a while people on'the ]
.- construction site."I Yet, more than a year later,'they were unable to document these allegations in response to the applicants' motion for summary disposition. Indeed, as noted above, in their request for reconsideration of the Licensing Board's summary disposition ruling, the interveners stated they' could only promise that "[i]f the
' Board grants the Motion for Reconsideration all workers who j have contacted GAP or the Environmental Whistleblower
. Protection Project will be apprised of the Jrportunity to l
1 76 App. Tr. 62.
77 Tr. 50. 1 l
- 1. . . ______ _ _. . _ _ _ i
32 participate in these hearings."78 Although we are sensitive to the difficulties inherent in getting individuals to testify at public hearings about alleged OA problems, we j l
cannot fault the Licensing Board's decision to decline to give interveners still more time to demonstrate the need for
]l a hearing on their QA co*..tention. The Board simply had no l 1
assurance either that witnesses would testify in support of l I
the interveners' charges, or that their testimony would be I i
pertinent.79 Indeed, at oral argument, GANE acknowledged !
the difficulty it had in obtaining commitments from its
- potential witnesses. It observed: )
So I will be very forthright in saying legally, I believe my organization has failed dramatically.
I mean, the lower board gave us a lot of leeway knowing they were working with laymen as far as late filings. I believe even the Applirent was somewhat conscious of the fact that they were working with people who were not legal expertE0and were overwhelmed, I guess would be the point.
78 CPG /GANE Motion for Reconsideration, Affidavit of Billie Pirner Garde at 2.
9 This is not to say that a party is precluded from attempting to "make its case" solely by cross-examination of an opponent's witnesses. But, as the Licensing Board correctly observed, this assumes that such party has successfully re.sisted a motion for summary disposition --
i.e., disputed issues of material fact, which must be
- resolved through hearing, have been demonstrated in the 1
pleadings. Memorandum and Order of December 3, 1985, at 6.
80 App. Tr. 64.
l
L
-v 33 In sum,'we affirm the Licensing Board's summary disposition of contention 8.
'IV. Groundwater Contamination The.Vogtle plant sits atop two major aquifers that contribute to public water supplies in the area.82 These aquifers are separated from the plant by a 60-foot layer of dense clay, known as the Blue Bluff Marl (excavation has reduced the marl thickness to about 38 feet under the auxiliary building). The marl is classified as an aquiclude, i.e.,.it impedes the flow of water from the
. surface to the two aquifers. In addition, groundwater exists in shallow, discontinuous bodies referred to as the
.,- water-table aquifer.82 GANE was initially concerned that an accident at the plant could result in radioactive water seeping into the aquifers located below the marl and contaminating the water supplies. Contention 7, as admitted for litigation, reads:
Applicant has not adequately addressed the value of-the groundwater below the plant site and fails to provide adequate assurance that the groundwater will not be contaminated as required by 10 C.F.R. 51.20(a), (b), and (c), 50. 34 (a) (1) , and 10 C.F.R. 100,10 (c) (3) , g}D C.F.R.
' 0I LBP-86-28, 24 NRC at 271.
82 Ibid.
03 LBP-84-35, 20 NRC at 898.
A 34 4
GANE's appeal,_however, centers more narrowly on the Licensing Board's rejection of its hypothesis that certain wells and'other exploratory holes' filled with grout (a sealing material) could serve as a pathway for contamination. GANE argues that "[i]t was indisputably clear in the hearing that the Applicants had provided a route for contamination of the Aquifer by drilling wells through the marl beneath the site and into the aquifer."84 In this connection, GANE attacks the Board's refusal to give weight to the judgment of its witness, William F. Lawless,
- that settlement.of the plant above the marl could adversely.
affect the ability of the grouted wells to impede contamination of the aquifers. It also faults the Board for
_not' relying on Mr. Lawless's testimony regarding supposedly similar contamination at the nearby Savannah River Plant.
GANE claims that "Mr. Lawless is far more expert in these areas than are the witnesses for the Applicants or the Staff."85 But as we explain below, GANE has provided no basis for rejecting the Board's decision.
We first observe, in passing, that our review of this aspect of the appeal has been particularly hampered by GANE's failure -- once again -- to direct our attention to GANE Brief at 7.
Id. at 8.
l
-[3
.35 ;
p L
Jthose portions of the record that purportedly support its ;
claim of Board error. Although the hearing lasted four days and covers several hundred.pages of transcript,.GANE refers us only to "the transcript of the hearings" as the evidentiary' predicate for its appeal.86 As we discussed above in connection with other portion's of GANE's brief, the appeal of contention 7 issues could be dismissed for failure to comply with the NRC's Rule of Practice that a brief identify'"the precise portion of the record. relied
-upon in support of the assertion of error."87 Nevertheless, because of.the potential significance of the matter if GANE's generalized claims were supported, we have fully
,. reviewed the' record.
We find no basis for overturning the Licensing Board's ultimate conclusion that the various holes drilled in the marl will not provide a route for contaminants to the groundwater below. As a practical matter, the Board reached this determination in stages. The applicants originally sought summary disposition of contention 7 in its entirety.88 In support of that request, they tendered an 86
. Id. at 7.
87 See supra pp. 3-4.
88 See Applicants' Motion for Summary Disposition of Joint Interveners' Contention 7 (Ground-Water) (July 15, 1985) [ hereinafter " Applicants' Contention 7 Motion").
'I .
36 affidavit from three geologists discussing data obtained from the wells and other exploratory holes drilled through the marl. In rebuttal,.-the interveners submitted an affi-davit that, among other things, expressed concern over an apparent lack of information dealing with the closure of these exploratory holes.89 The Licensing Board found, how-ever, that the closure of the holes was documented in the applicants' affidavit; it indicated, in this regard, that-all but three wells had been grouted closed in accordance with normal engineering practice.90 It also determined that
- the three ungrouted wells present no risk of contamination to the water supply.91 Although the interveners criticized
'the method for closing the holes,92 the Boati, again relying. I on the affidavits of the applicants and the staff, was satisfied that the technique was adequate.93 In sum, the Board decided that no issue of fact existed with respect ]
l Interveners' Response to Applicants' Motion for Summary Disposition of Contention 7 (August 9, 1985) .
[ hereinafter " Interveners' August 9 Response"]c Affidavit of W.F. Lawless at 8. i
)
90 Memorandum and Order of November 12, 1985, at 21-23.
~
91 d I_d_. at 22.
92 l Interveners' August 9 Response, Affidavit of W.F.
Lawless at 6.
Memorandum and Order of November 12, 1985, at 22.
l' !
i 1 i - - -- _ )
37
~
)
\
to_possible contamination of>the aquifers through the ]
exploratory wells or holes.94 The Board nevertheless declined to grant the motion for summary disposition in its entirety and, instead, set five issues of material fact for evidentiary exploration.95 In addition, despite having summarily resolved issues dealing with the grouted wells, it permitted inquiry at the hearing into the impact that settlement of the Vogtle plant might have.on the wells -- characterizing this as "a collateral' issue."96 Following the hearing, the Board resolved all j
- issues.in the applicants' favor." 'It adopted the applicants' estimate of marl permeability and concluded that there-are no voids, fissures, or fractures that would allow radioactive material to penetrate the marl itself and get into the aquifers below.99 The Board specifically found 94 d I_d, at 22-23.
5 Those issues were (1) the adequacy of the geological / hydrological exploration of the Vogtle site, (2) i uncertainty in data on marl thickness and permeability, (3) data on marl continuity, (4) direction of groundwater flow, and (5) groundwater travel time. Id. at 30.
96 LBP-86-28, 24 NRC at 284-85.
. " Id. at 286.
98 Although the marl would not protect the Id. at 281.
water-taETe aquifer from contamination, the Board also found that any radioactivity that gets into that aquifer would flow into Fathes Fond or the Savannah Rivur and become (Footnote Continued)
38 that settlement of the structures above the grouted wells could not result in the opening of any flow paths for contaminants through the marl.99 GANE does not now challenge the Board's determination that the method of grouting assures that the holes are completely filled. Instead, it presses a claim that, if additional settlement of the buildings atop the marl were to occur, certain physical characteristics or properties of the marl and the grov'ced wells would result in " differential l
l l
i motion" that could allow contamination to flow downward through the 'aarl into the aquifers below. As Mr. Lawless testifiedi Assuming the grouted wells under the [Vogtle]
power block are one complete solid, then as the power block settles, those grouted wells directly under the block will be punched downward at a one-to-one rate, a rate that may be different
("dif ferential") for the marl. Applicants have concluded that the marl is impermeable, but have not shown whether the marl is incompressible, or whether the marl will deform downward at the same rate as the grouted wells. The grouted wells are likely less compressible in a vertical direction than the more elastic marl. As these grouted wells settle, driven by the weight of the power block atop them, they act like spikes. With plastic deformation of the marl, it is possible that the bottom of the grouted wells may separate (Footnote Continued) diluted, so as to pose no threat to public water supplies.
Ibid. GANE does not challenge that aspect of the Board's decision on appeal.
Id. at 286.
y,+;
1 V. !
l
)
and' core out at the bottom of the marl. If so l the integrity of the marl would be diminished.100 The Board rejected Mr. Lawless's scenario and we find ]
its ruling well-founded. Mr. Lawless conceded on cross-examination that he did not know the relative compressive strengths of the grout and the marl and that, j 1
absent such knowledge, it was difficult to compare their l i
elastic properties.101 He likewise acknowledged that he was unfamiliar with the extent of settlement at the Vogtle plant.102 Thus, his testimony postulated an entirely {
hypott.atical situation. In contrast, the applicants' witness, Thomait W. Crosby, tentified that (a) the marl is more rigid than the grout columns, (b) slippage of the grout columns is unlikely because of the significant frictional area between the marl and .the columns, and (c) because of its physical properties, the marl would either resist penetration by the grout columns or tend to close ar.y openings that might occur.103 The Licensing Board, 100 Lawless, fol. Tr. 720, at 7-8 (December 15, 1985 submission).
01 Tr. 747-48.
102
. Tr. 746-47.
163 Tr. 792-794, 796, 800-05, 818. The physical property that would seal any openings was variously referred to in the record as " elasticity" and " plasticity." Whether through elastic or plastic deformation, the weight of the (Footnote Continued)
l- -
p l -
l 40 l
reviewing all the testimony as well as an-affidavit earlier submitted by another of the applicants' experts, Walter R.
Ferris, concluded that the grout columns will not move at a rate different from that of the marl, and that there is thus no risk to the integrity of the marl.104 The Board's findings and conclusions rest essentially on the testimony and other documentation provided by the witnesses for the applicants and.the NRC staff. We cannot agree with GANE either that the applicants' witnesses (whom GANE does not identify) acknowledged that they were not experts,105 or that the Board improperly rejected Mr.
Lawless's conflicting testimony.
To begin with, the Board relied in part on an affidavit submitted by Mr. Ferris during the prehearing phase of the case, indicating that the applicants had conducted a settlement monitoring program and that settlement had nearly ceased. By the tine of the hearing, settlement was thus an (Footnote Continued) buildings and overlying material will cause any open space that might develop around a grout column to be filled by the surrounding marl. See LBP-86-28, 24 NRC at 285.
~
104 LDP-86-28, 24 NRC at 285.
105 Referring to the March 14, 1985, testimony, GANE claims that "the witnesses admitted under cross-examination that they had testified on matters in which they were not l expert." GANE Brief at 7.
i i
2
t ,
41
" undisputed" issue.106 Mr. Ferris is a civil engineer who l 18 a specialist in soil mechanics.107 GANE did not challenge his credentials. Furthermore, Mr. Ferris's conclusion was endorsed at the herring by an NRC staff 108 whose qualifications were similarly not witness challenged.
The Board also relied on the testimony of Messrs.
Ciosby, Clifford R. Farrell, and Lewis R. West, who are geologists,109 and Dr. Stavros S. Papadopulos, who is a hydrologist.110 Mr. Lawless himself characterized these
- individuals as "four reputable scientists."111 To be sure, Mr. Crosby admitted that he was not an expert on the subject of settlement of structures,112 and Dr. Papadopulos acknowledged that he was not an expert in the elastic 106 LBP-86-28, 24 NRC at 285 n.14. See Applicants' Reply to Interveners' Response to Applicants' !"otion for Summary Disposition of Contention 7 (September 9, 1985),
Affidavit of Walter R. Ferris at 3.
107 Exhibit A.
108 Tr. 776-77.
109 Tr. 250, 251.
110 Tr. 252.
11 h Tr. 307.
I Tr. 794, 799, 814.
42 properties of the materials in question.113 But the Board
~
clearly relied on Mr. Crosby's testimony to ascertain the physical characteristics of the marl and the grout --
matters within his expertise as a geologist -- and not to make any findings regarding settlement.114 The Board essentially cited Dr. Papadopulos's testimony only as added support for Mr. Crosby's expert testimony on the geologic properties of the marl.115 Thus, even if the cited portion l of Dr Papadopulos's testimony could be regarded as beyond the strict confines of hydrology, it was not crucial to the Board's decision. We therefore find nothing in the record to substantiate GANE's vaguely articulated doubts about the qualifications of the applicant and staff witnesses on the l ,
subjects for which their testimony was used.
We also believe that the Board accorded fair treatment to Mr. Lawless and his views. It found him to be
" conversant," but lacking " professional qualifications," in the area of groundwater hydrology.116 Although Mr. Lawless is plainly familiar with the issues with which GANE is concerned, he candidly admitted that he is neither a 113
. Tr. 805.
I 1
LBP-86-28, 24 NRC at 285 and n.14.
115 l Id. at 285.
116 Id. at 270.
43 I I
geologist nor a hydrologist.117 Moreover, as noted earlier, he did not know the compressibility of the marl or the grout columns or the extent of settlement of the Vogtle plant.118 As a consequence, the Board viewed his testimony as sufficient to raise -- but not to resolve -- various questions regarding the likelihood that the physical properties of the marl and the grouted wells, when affected j l
by the settlement of the buildings, could produce a conduit i for contamination.119 Relying on the testimony of other ,
(
more appropriately qualified witnesses, the Board proceeded to resolve those questions. It was satisfied -- and so are we -- that the grouted wells will not affect the ability of
.,~
the marl to serve as a barrier against contamination.
Contrary to GANE's implied argument, the Board's conclusion is not undermined by an experience at the 117 Mr. Lawless is currently an assistant Tr. 721.
g' professor of mathematics at Paine College in Augusta, Georgia. Tr. 719. He served for a time as a senior project engineer at the Savannah River Plant in Georgia. Tr. 722.
GANE criticizes the Board's evaluation of Mr. Lawless's expertise. As the Board noted, however, GANE did not submit any qualifications statement for Mr. Lawless (as is ordinarily required for a witness), so his credentials could be ascertained only through cross-examination. LBP-86-28, 24 NRC at 270. In the circumstances, we find the Board's description and assessment of Mr. Lawless's background and qualifications reasonable.
118 Tr. 746-51.
119 See Memorandum and Order of November 12, 1985, at 6.
k 44
) ,
\ Savannah River Plant. It is clear that there was some unanticipated contamination of an aquifer at the SRP, probably through " discontinuous" areas of the aquiclude there. At the summary disposition phase of the case, the Board gave the matter thorough consideration and acknowledged that it is possible that the unanticipated contamination experienced at SRP could be repeated at Vogtle. But because of the more extensive exploration in the Vogtle area, it believed that it was even more likely that discontinuities in the Blue Bluff Marl, if they existed, would be discovered. More important, the Board noted that no purpose would be served in examining the relevance of the SRP contamination to Vogtle, given that specific issues relating to the adequacy of the geological /
hydrological exploration, an$ marl thickne_s, permeability, and continuity at Vogtle were to be litigated in any event.120 The hearing record bears out the Board's conclusion about the relevance of the SRP contamination to Vogtle. After extensive consideration of these matters, the 1
Board found that the geology and hydrology of the Vogtle j site have been adequately explored, and that the Blue Bluff Marl will protect the underlying aquifers from 120 Id. at 17-21.
_- -_ _-____--_---- i
l 45 l'
contamination.121 GANE has failed to attack these findings ;
in any meaningful way. We therefore agree with the Licensing Board's summary disposition of the SRP issue.
V. Motion to Reopen the Record ;
contention 10.6 alleged that certain motor operators manufactured by Limitorque were not qualified against stear; spray as required by the Commission's environmental qualification regulation.122 In response to this proffered contention, the applicants notified the parties and the Licensing Board that new and qualified motor operators had been ordered as replacements.123 Both GANE and CPG agreed to advise the Board whether they still intended to pursue the Limitorque motor operator issue.124 CPG notified the Board that it would not pursue the issue, but GANE did not respond at all. In due course, the Board thus rejected the contention as moot. GANE now asks that this issue be reopened in view of what it describes as "a history of 121 See LDP-86-28, 24 NRC at 271-79.
12 See 10 CFR 50.49.
123 Letter from' George W. Trowbridge to Laurie Fowler (June 27, 1984), Affidavit of William C. Ramsey at 2.
14 See Tr. 75-77.
15 LBP-84-35, 20 NRC at 905.
46 continuing problems."126 In support of'its request, it i refers us to four Information Notices issued by the Commission's former Office of Inspection and Enforcement, which it claims demonstrate problems associated-with these corpanents.127 The applicants and the NRC staff oppose GANE's request.
To prevail on a request to reopen a record, a movant must show that (1) its motion is timely (although a board may consider in its discretion an exceptionally grave issue !
even if not timely presented); (ii) the motion addresses a i
- significant safety or environmental l issue; and (iii) a materially different result would be or would have been q likely had the newly proffered evidence been considered.128
'GANE has not satisfied these criteria.
l 126 GANE Brief at'17. '
27 See IE Information Notice No. 85-20 (March 12, 1985), Motor-Operated Valve Failures Due to Hammering i Effect; IE Information Notice No. 86-02 (January 6, 1986),
Failure of Valve Operator Motor During Environmental '
Qualification Testing; IE Information Notice No. 86-03 (January 14, 1986), Potential Deficiencies in Environmental Qualification of Limitorque Motor Valve Operator Wiring; IE Information Notice No. 86-71 (August 19, 1986), Recent 3 L
Identified Problems with Limitorque Motor Operators. j 128
. 10 CFR 2.734. See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC , (May 8, 1987) (slip opinion at 19).
129 The applicants also claim that GANE seeks to i address an issue not previously admitted for litigation and (Footnote Continued)
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We find that the motion does not raise'a significant )
safety issue,- and that a different result would not be likely if the information were considered.130 To begin J with, the~ generic notices reflect only the results of customary, ongoing surveillance and do not suggest any significant compromise or safety threat in the performance of the' motor operators. Indeed, none of the notices imposed new regulatory requirements or mandated any action or response from any licensee or applicant re61pient.
I (Footnote. Continued) must therefore satisfy the separate criteria for tendering contentions late. Applicants' Brief at 60.. See 10 CFR
- 2. 714 (a) (1) . We agree. Although GANE notes that the Board rejected the original contention, it does not expressly !
cnallenge that rejection. Rather, the gist of its argument is that the four Information Notices -- which it describes as "new evidence" -- warrant further examination of the issue. Because we find that GANE has not met the criteria for reopening the record, we need not consider whether it can satisfy as well the criteria for late-filed contentions. i See generally Philadelphia Electric Co. (Limerick Generating !
Station, Units 1 and 2), ALAB-828, 23 NRC 13, 17 (1986); I id., ALAB-834, 23 NRC 263, 266 n.10 (1986). ,
10 Given our determination that GANE has failed to meet two of the three reopening criteria, we need not decide i whether the request is timely. We note, however, that all four of the notices on which GANE now relies were available while some or all of the case was still pending before the Licensing Board; indeed, three of the four notices were available many months before the Board issued its August 1986 partial initial decision. GANE does not explain why it waited until it filed its appellate brief to renew the issue. Cf. Metropoli^ tan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-8, 21 NRC 1111, 1114
-(1985) (absent some justification for not promptly :
requesting a reopening of tne record, seven-month delay in ]
seeking reopening after the receipt of pertinent information 1 rendered request untimely). f
48 Nonetheless, the applicants have taken prompt action in response to the notices. An affidavit from Robert M. Bellamy, Plant Support Manager at Vogtle, addresses each of the matters raised in the four notices.131 As clarified by subsequent correspondence from the applicants,132 that affidavit details their response to each of the notices and explains either how the problems have been corrected or why they are not likely to arise at Vogtle.133 At oral argument, we explored those issues of concern to us.134 We are now satisfied that all pertinent safety matters have been resolved and that no additional evidentiary exploration is needed, t
131 See Applicants' Brief, Affidavit of Robert M.
Bellamy (November 14, 1986).
12 Letter from David R. Lewis to Appeal Board (January j 15, 1987); Letter from Bruce W. Churchill to Appeal Board (February 12, 1987).
For example, the most recent notice, IE Informaticr Notice No. 86-71, addresses burn damage to internal wiring in several motor operators at the Vogtle plant. The damage was discovered by the applicants and reported to the Commission's staff. The wires burned because of their l proximity to heater elements. The applicants have inspected the motor operators and replaced or repaired damaged wire where necessary. To prevent recurrence of the problem, the heater elements have been disconnected in all safety-related motor operators. Because the heater elements were intended for use during storage of the motor-operated valves, they are not necessary to the safe operation of the equipment.
134 In fact, the applicants' App. Tr. 31-38, 40-41.
February 12, 1987, letter providing further clarification ef (Footnote Continued) 3
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49 VI. Sua Sponte Review
- We have exercised our authority to review sua sponte the entirety of both Licensing Board partial initial decisions and the underlying record, even as to issues where no appeal was taken.135 We find no errors-that call for corrective action -- cnly one matter that warrants some Comment.
Polymers are used in various applications at nuclear power plants (e.g., in electric cable insulation). Some of. >
these applications have a bearing on safe operation. Over an extended period of time, the molecular structure of a polymer can be affected by. exposure to radiation, causing the polymer to become brittle or to lose.its electrical insulation capability.136 The Licensing Board originally ,
1 admitted contention 10.1, dealing with the environmental qualification of certain polymer materials. Relying on a report from the Sandia National Laboratories, this contention alleged that certain safety-related equipment at Vogtle contained polymers that might experience greater degradation from lower dose rates of radiation than would be (Fpotnote Continued) their remedial action ~s (supra note 132) was prompted by questions we raised at oral argument.
135 See supra note 5.
y 16 See generally Perry, ALAB-841, 24 NRC at 95.
1 E _ _ _ _ _ . _ _ _ _ _ _ .
50 expected based on testing at higher dose rates. (This is 37 termed a " dose rate effect.") After hearing substantial uncontroverted' testimony on contention 10.1, the Board e ultimately concluded that it was without merit, Specifically, the Board found that polymer materials destined for use in safety-related [Vogtle] applications have acceptably passed an adequate environmental qualification program. Additional assurance as to the adequacy of these polymers will derive from an operational su by Applicants.yygillance program to be implemented Thereaf ter (on September 18, 1986), the applicants advised both us and the Licensing Board (as well as the parties) of newly discovered information regarding contention 10.1. They pointed out that the polymer that showed discernible dose rate effects in the Sandia study is a member of a group of polymers designated as XLPO (cross-linked polyolefin) and, in particular, is a co-polymer of ethylene and vinyl acetate (EVA). At the hearing before the Licensing Board, the applicants' witnesses testified that EVA was not used in any safety-related equipment at Vogtle. The applicants have now learned, however, that XLPO insulation of certain instrumentation cable at Vogtle contains a polymer l
I See LBP-84-35, 20 NRC at 903.
I 10 LBP-86-28, 24 NRC at 293.
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classified'as EVA. They state that they will identify which cable'is affected and will subject it to the surveillance program already established and required for safety-related equipment.. The applicants also express the view that, in any event,'the Sandia conclusions about dose rate effects do not prevent XLPO insulation from performing its intended electrical function,139 GANE did not comment on the applicants' letter, but the NRC staff counsel eventually submitted an affidavit containing the results of the staff's review of the
- information disclosed by the applicants. The staff concluded that the information does not change its earlier favorable evaluation of the safety-related equipment and corresponding maintenance and surveillance program at Vogtle.140 GANE does not challenge the Licensing Board's disposition of contention 10.1.141 However, the Licensing Board included in its subsequent concluding initial decision 139 Letter from David R. Lewis to Gary J. Edles, et al.
(September 18, 1986).
140 Letter from Bernard M. Bordenick to C. Jean Shoemaker (January 14, 1987), Affidavit of Armando Masciantonio [ hereinafter "Masciantonio Affidavit").
141 See GANE Brief at 16.
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52 a condition designed to address the issue raised by the applicants' September 18 letter. The Board stated:
As a condition precedent to the issuance of any operating licenses, it would first have to be.
initially determined by appropriate authority that the changed information contained in Applicants' letter of September 18, 1986, pertaining to XLPO insulation that contains vinyl acetate, does not lead to a conclusion that is inconsistggg with that of this Board on Contention 10.1 In ALAB-859, we ruled that the license condition imposed by the Board in its concluding partial initial decision was not a bar to the issuance of a low-power operating license because the Board lacked authority to impose the condition.
We also announced our intention to review, on the merits, the disposition of contention 10.1 (including the related correspondence subsequent to the Licensing Board's decision on the issue), pursuant to our sua sponte respon-sibilities.143 We have done so.
The discovery of EVA at Vogtle raised the question of whether the applicants' cable surveillance program remained adequate to detect polymer degradation before a safety problem might arise. The results of the Sandia study (illustrated in figures attached to applicants' testimony) indicate that EVA exhibits a somewhat greater dose rate l
~
14 LBP-86-41, 24 NRC at 904. See also id. at 928.
143 25 NRC at 27.
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effect than the three other polymers tested.144 The cumulative degradation of EVA, however, is not significantly different from the other polymers for the total integrated dose estimated _over the 40-year operating life of Vogtle.145 Thus, any severe polymer degradation would not occur overnight, but would develop over several years. The staff reports that all cable insulated with EVA will be identified and subjected to the applicants' cable surveillance '
program. 146 In the circumstances, we conclude that the identification of EVA polymer as insulation'for certain
- electric cables at Vogtle is not a significant safety concern.- As we have stated in the past, polymer degradation is a long-term issue that can be met by an adequate surveillance program. In particular, relying in part on the same Sandia study, we came to such a conclusion in our consideration of possible polymer degradation during the operating life of the Perry nuclear power plant.147 i
i 144 Kitchens, et al., fol. Tr. 561, Figures 1-4.
145 Ibid.
~
146 Masciantonio Affidavit at 6. The staff also reaffirmed its earlier acceptance of the applicants' cable surveillance program, even in light of the discovery of EVA polymer at Vogtle. Ibid.
147 See Perry, ALAB-841, 24 NRC at 95-97.
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.m, , .,.
i 54 LBP-86-28 and'LBP-86-41,'as modified by ALAB-859, are affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD b.b M h.
{# C. J(, in Shoemaker SecreMary to the Appeal Board
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