ML20247L714
| ML20247L714 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 09/20/1989 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#389-9197 ALAB-921, LBP-89-12, OLA, NUDOCS 8909250046 | |
| Download: ML20247L714 (19) | |
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DOUQij0 UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION
.ATOMICSAFETY'ANDLICENSINGAPPEALBOARb Administrative Judges: GFi !'. . ~ . ,
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Thomas S. Moore, Chairman . September' 20,'1989 Alan S. Rosenthal (ALAB-921)
Howard.A. Kilber i SERVED SEP 2 0 1989' 3
In the Matter of )
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FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-335 OLA
) (SFP Expansion)
(St. Lucie, Nuclear Power Plant, )
Unit 1) )
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Campbell Rich, Stuart, Florida, intervenor pro sc.
Harold F. Reis, Michael A. Bauser, and Patricia A.
Comella, Washington, D.C., and John T. Butler, Miami, Florida, for the applicant, Florida Power & Light Company.
Patricia A. Jehle and Bernard M. Bordenick for the Nuclear. Regulatory Commission staff.
DECISION Campbell Rich, a pro se intervenor in this operating license proceeding, has appealed the Licensing Board's May 1
9, 1989, initial decision sustaining the agency's grant of an amendment to the applicant, Florida Power & Light Company, permitting the reracking of the St. Lucie Unit 1 spent fuel pool to increase its capacity. For the reasons that follow, we affirm the Licensing Board's decision. l l
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Im l On August 31, 1987,.the Nuclear Regulatory Commission publishedLa notice in the Federal Register that it wasi considering issuing a license amendment to the applicant authorizing an increase in the St. Lucie' Unit.1 spent fuel-pool sto, rage capacity from 728 to 1706 fuel' assemblies.2 Among'other things, the notice stated that the proposed expansion was to:be achieved by reracking the fuel pool with high-density storage racks employing Boraflex'as a neutron absorber for criticality control.3 According to.the notice, the rack vendor had licensed at least-ten other racks of essentially the same design.so no'new or improved technology
.would be employed in either the construction en rnalysis of.
the new racke.4 The notice further indicated that the 2
52 Fed. Reg. 32,852.
3 As stated by the Licensing Board, Bornflex is an effective entrapper of neutrons.
It is produced by uniformly dispersing Boron carbide particles in a polymeric silicone encapsulant, which performs as the matrix element.
The neutron-absorbing element is Boron. Since 1980, 85% of all high-density racks ordered by U.S. utilities have used Boraflex as the preferred
" poison" material for neutron absorption. This involved twenty-three separate U.S. commercial nuclear power plants.
LBP-89-12, 29 NRC at 448 (citations omitted).
52 Fed. Reg. at 32,852-53.
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Commission was cu,nsidering making a "no significant hazards" determination with respect to the license amendment; thus the notice also set forth the NRC staff's analysis of how the applicant's amendment application met the standards contained in 10 C.F.R. S 50.92(c) for making such a determination.5 In response to the notice, Campbell Rich, a resident of the immediate area of the St. Lucie facility, filed a request for a hearing and a petition to intervene in the proceeding. Thereafter, on March 4, 1988, the staff issued an environmental assessment and a finding that the applicant's proposed spent fuel pool expansion posed no significant radiological hazard.6 Pursuant to the Commission's regulations, once the staff has made a "no significant hazards" determination, the amendment may be issued immediately and any hearing is held subsequently to determine if the amendment shall remain in effect. The Licensing Board then granted Mr. Rich's petition to intervene, admitting seven of his proffered contentions.
5 Id. at 32,853-55.
6 53 Fed. Reg. 7065 (1988). i 7
See 10 C.F.R. S 50. 91 (a) (4 ) .
8 See LDP-88-10A, 27 NRC 452, aff'd, ALAB-893, 27 NRC 627 (1988).
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4 After dismissing one of the admitted contentions on the l
intervenor's own motion and granting the applicant's motion i 1
for summary disposition as to part or all of four others, I
l the Licensing Board heard evidence on the remaining portions of three contentions.9 At the three-day hearing, the ]
applicant and the staff each presented three expert witnesses and numerous exhibits, while the intervenor i
presented no evidence and confined his case to cross-examining the applicant and staff witnesses. On each of the issues before it, the Board then found that the preponderance of the evidence favored the applicant. It concluded, therefore, that the previously issued license amendment should remain in effect.10 In reaching its decision, however, the Board placed a condition upon the amendment, requiring that the applicant design a program to assess the effect of irradiation on the Boraflex panels if certain test samples placed in the spent fuel pool are i subjected to gamma radiation equal to, or greater than, 8 1 1 x 10 rads.
9 See LEP-68-27, 28 NRC 455 (1988).
O LBP-89-12, 29 NRC at 446-60.
Id. at 458-59.
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5 II.
According to his appellate papers, the li] ntervenor is appealing the [ Licensing] Board's Decision as regards the issues surrounding the integrity of Borsflex as suggested by Contention 3 and Contention 6." As litigated, contention 3 claimed that the effects of heat and radiation on Boraflex panels used in spent fuel pool racks have not been adequately considered or analyzed, while contention 6 alleged that the use of Boraflex in high-density racks from the Joseph Oat Corporation is a new and unproven technology.
While the intervenor identifies the Licensing' Board's decicion respecting these two contentions as the focus of his appeal, his eight-page appellate filing' fails to identify clearly and to brief adequately the " issues surrounding" these contentions that the intervenor purports to raise. The Commission's Rules of Practice require that
"[a]n appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal."13 We have pointed out repeatedly that a party's appellate brief must contain sufficient information and argument to allow the appellate tribunal to make an intelligent disposition of the 12 Intervenor's Appeal of Initial Decision (June 16, 1989) at 1 [ hereinafter "Intervenor's Brief").
13 10 C.F.R. S 2.762 (d) (1) .
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6 issues sought to be raised on appeal.14 Here, the intervenor's brief comports with neither the letter of the regulations nor the spirit of our decisions. Nevertheless, because we do not hold a pro se intervenor to the same 5
standard that we expect a lawyer to meet, we have tried, as best we can, to glean from the intervenor's appellate papers the essence of the errors he alleges. As in the case or all litigants, however, the intervenor must bear full responsibility for any possible misapprehension of his arguments caused by the inadequacies of his brief.16 As best we can discern from his brief, the intervenor raises no questions of law. Rather, he only challenges several of the Licensing Board's factual findings with 14 See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 805 (1986); id.,
ALAB-843, 24 NRC 200, 204 (1986); id., ALAB-837, 23 NRC 525, 533-34 (1966); Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 955-57 (1982); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 413, reconsideration denied, ALAB-359, 4 NRC 619 (1976).
15 See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1247 (19b4), rev'd in part on other grounds, CLI-85-1, 21 NRC 275 j (1985); Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 50 n.7 (1981), aff'd sub nom. Township of Lower A11cways Creek v.
Public Service Electric & Gas Co., 687 F.2d 732 (3d Cir.
1982).
16 See Wiscorsin Slectric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 338 n.4 (1983).
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respect to contentions 3 and 6. Although the intervencr never mentions the standard of review for such findings, it must be remenbered that "we are not free to disregard the j tact that the Licensing Boards are the Commission's primary fact finding tribunals."1 Hence we will only " reject or modify findings of the Licensing Board if, after giving'its decision the probative force it intrinsically commands, we 8
are convinced that the record compels a different result."
In other words, "we must be persuaded that the record evidence as a whole compels a different conclusion and we will not overturn the hearing judges' findings simply because we might have reached a different result had we been 9
the initial fact finder."
In his brief, the intervenor seemingly argues that several of the Licensing Board's findings regarding contentions 3 and 6 are erroneous. The record as a whole, hewever, does not support his claims. This is not surprising because the intervenor offered no affirmative 17 Northern Indiana Public Service Co. (Bailly Generating Station, Unit 1), ALAB-303, 2 NRC 858, 867 (1975).
le Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975).
19 General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-881, 26 NRC 465, 473 (1987).
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evidence at the hearing to support his two contentions, and all testimony and documentary exhibits on the contentions were presented by experts for the applicant and the staff.
The Licensing Board made its findings based upon this expert j testimony and our review of the record satisfies us that those findings are thorough, fully supported by the evidence, and correct. Thus, under the standard applicable for reviewing factual findings, they must be affirmed.
- 1. Although the argument heading in his brief reads l The effect of exposure to elevated temperatures on Boraflex," the intervenor does not appear to question the Licensing Board's findings on this subject. Rather, as best we can tell, the intervenor seems to complain that the trial Board's findings on the con 6ined ef fect of heat and l
radiation on Boraflex are not supported by credible l l evidence.20 In its decision, the Licensing Board found that the NRC I
required the testing of Boraflex under physical conditions I more revere than the environment to which the material would be exposed in actual use before the agency accepted it as an i
1 appropriate neutren-absorbing material. In its fully .j supported findings, the Board detailed the history of heat I
aging tests at 350*F and long-term pressure bomb tests at 20 Intervenor's Brief at 1-3.
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y 240"F in a boric acid solution, to which.Boraflex was subjected in-order to establish itc' stability under excessive: environmental conditions. It also found that the St.:Lucie Unit 1-spent fuel pool temperature hovers around-100*F, which is well below the qualifying test temperatures, and'that Boraflex will never be exposed to temperatures in excess of 200'F anywhere in the St. Lucie pool.
The Board made fully supported findings on the effects i 2 of' radiation on Boraflex as well. For example, it found that-radiation expocure testsLwere conducted.on Boraflex at the Ford nuclear research reactor at the University of l Michigan. Although none of the published results of the various exposure tests reported on the combined:effect of temperature and radioactivity per se, "[s]ince the reactor temperatures are much higher in the reactor than in the spent fuel pool, synergistic effects of heat and radiation would be included in the reported in-reactor irradiation 9
studies."'3 As support for this latter determination, the Board cited the testimony of one of the staff's expert witnesses, Dr. James Wing, a chemical engineer at the NRC.
21
- LBP-89-12, 29 NRC at 449. See Singh, fol. Tr. 139, at 14.
LBP-89-12, 29 NRC at 450-51.
Ijl. at 449.
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.Eut'the intervenor, in effect' claims that he. discredited ,
this witnesc with his. cross-examination, so his testimony-should be disregarded. Even accepting the intervenor's position for'the sake of' argument,Ethe Doard's finding'on
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the combined effect of heat and radiation on Boraflex is amply and independently supported by_the" testimony of'Dr.
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Krishna P. Singh, one of the applicant's expert witnesses.
Dr. Singh is currently. president of Holtech International,.a company engaged in the. design and supply of spent fuel pool-L storage racks.for-the domestic and international nuclear j power plant industry.- This company is the' subcontractor i responsible for the design, analysis, and licensing of the l
l St. Lucie racks for the rack vendor and manufacturer (and Dr. Singh's former employer), the Joseph Oat Corporation.
1 By education, Dr. Singh holds B.S., M.S., andLPh.D. degrees in mechanical engineering, and he has_ extensive experience-
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in the design of spent fuel storage racks utilizing Boraflex. In his direct testimony, Dr. Singh specifically 24 Singh, fol. Tr. 139, at Exh. A.
The intervenor also seems to suggest that Dr. Singh, contrary to the Licensing Board's determination (LBP-89-12, 29 ShC at 447), was not a qualified expert because "he was, in fact, a metallurgical specialist and not a chemist and so must rely upcn'the work and knowledge of others with regards to the integri,ty and suitability of the polymer, Boraflex."
Intervenor's Brief at 2. The short answer to what appears to be his belated attempt to have Dr. Singh disqualified as (Footnote Continued) l
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11 stated that the extensive tests run on Boraflex at the Fcrd reactor-between 1979-1981 were designed to identify the physical and chemical characteristics of this material under a variety of radiation levels, radiation rates, and severe environments, including temperatures substantially greater than those found in the St. Lucie pool.25 Thus, the intervenor has resented nothing that undercuts the support of the Licensing Board's finding on this matter.
- 2. Once again his argument is far from clear, but the intervenor also asserts that the Licensing Board found "that shrinkage of 3-4% is to be anticipated during the normal (Footnote Continued) l an expert witness is that the intervenor failed to raise a timely objection to this witness's qualifications below, so he'cannot now be heard to complain. Moreover, the intervenor is simply wrong when he states that Dr. Singh l
testified he was "a metallurgical specialist." Dr. Singh holds a doctorate in mechanical engineering and has had educational course work in organic and analytical chemistry.
There can be no real question as t.o his qualifications to testify on the matters at hand. Further, the intervenor's claim that Dr. Singh is somehow unqualified, because he relied upon the knowledge of other experts for data on the i
properties and suitability of Boraflex, is totally without I merit. It is well established that an expert witness may i rely upon analyses performed by others. See Philadelphia l Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-819, 22 NRC 681, 718 (1985), cff'd in part and review otherwise declined, CLI-86-5, 23 NRC 125 (1986), remanded in part on other grounds sub nom. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1969). here, Dr. Singh primarily relied upon the expertise of Dr. Stanley E.
l Turner, a nuclear chemist and co-witness, whose qualifications the intervenor has not challenged. See Singh, Tr. at 146-47, Turner, fol. Tr. 139, at Exh. A.
25 l Singh, fol. Tr. 139, at 15.
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- service life of the material."26 He further claims that the i L I I
l' " Licensee's own witness, Dr. Turner, provided data that showed shrinkage of 4% anc even greater at radiation levels that will be encountered by the material in service." In l
l light of this purported finding and evidence, the intervenor l
l appears to argue that the Licensing board somehow erred in i
sustainina the license amendment because it contains "a dimensional change [ limitation) of 2.5% from the original" for the Boraflex material.28 What is clear from this argument is that the intervenor badly misapprehends the Licensing Board's decision, the record evidence, and the license amendment.
Contrary to the intervenor's allegation, the Licensing Board simply did not find that it was anticipated that the Boraflex would shrink three to four percent during the normal service life of the material.2Q "
Nor did Dr. Turner testify that Boraflex shrinkage would be four percent or greater. Instead, he indicated that dimensional changes of the Boraflex samples would be on that order.30 Indeed, Dr.
'O Intervenor's Brief at 3.
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' See LBP-89-12, 29 NRC at 450-51, 459.
30 Turner, Tr. 367.
l-13 Turner. stated that actual measurements of Boraflex samples in spent fuel pools showed a maximum shrinkage of 2 to'2.5 percent, but for' purposes of determining the~ magnitude.of the effective multiplication factor for criticality -
concerns, he assigned a conservative value of four percent shrinkage'for-the~ calculations.31' Contrary to the intervenor's apparent belief, however, dimensional changes and shrinkage are not synonyms, as those terms are used in the evidentiary record. Dimensional variations include changes in addition to just shrinkage.32 Further, and again contrary to the intervenor's apparent' belief, the license amendment authorizing the reracking of the St. Lucie Unit 1' spent fuel pool contains 1
no license condition or acceptance criteria on the high-density racks to the-effect that a dimensional change in the Boraflex of no more than 2.5 percent from the original is all that is permitted. As best we can determine, the intervenor has confused the license amendment with a statement found in the staff's Safety Evaluation Report describing the applicant's in-service surveillance testing program. 33 That program is not part of the license I 31 Turner, fol. Tr. 139, at 6-7.
32 See Turner, Tr. 403-06.
33 See Staff Exh. 1, at 5.
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14 amendment; rather it is part of the applicant's plant l
procedures for St. Lucie.34 As the Licensing board stated in describing that ancillary testing program, "[allthough Boraflex is expected to satisfactorily perform its intended function, the surveillance program ensures that any radiation effects beyond those expected and accommodated in the design will be detected well in advance (probably years) of the need for' remedial action." 5 In short, the record does not support the intervenor's charges.
- 3. Finally, the intervenor appears to complain about the Licensing Board's findings concerning the normal use of Region 1 of the spent fuel pool and the effects on criticality of possible gap formation in the Boraflex paneln of the racks in that region.36 In its decision, the Licensing Board reviewed the design and construction of both Region 1 and Region 2 storage racks, noting that "[t]he essential difference between Region 1 and Region 2 storage rack modules is that the Region 1 racks are provided with additional neutron-absorbing material in the form of Boraflex so as to control the higher potential reactivity 34 Weinkam, fol. Tr. 139, at 3.
5 LBp-89-12, 29 NRC at 453.
36 Intervenor's Brief at 4-8.
15 that would result with fresh nuclear fuel." It found that the racks for.both regions were appropriately designed to take into account shrinkage caused by irradiation of boraflex and that the Region 1 racks were specially designed to allow for controlled gap formation at designated points.38 The Board also found that the applicant had appropriately evaluated the effects on criticality caused by the formation of such gaps and that the formation of gaps would not challenge the margin of the staff's acceptance criterion for criticality. Further, the Board determined that "[s] pent fuel is normally discharged to Region 2, while Region 1.is used to store fresh [unirradiated] fuel prior to refueling and for contingencies such as the possible need for a full-core offload."40 It concluded, therefore, that
" shrinking and subsequent gap formation should thus be nonexistent or minimal in the Region 1 racks."41 The Board indicated, however, that "It]he one exception which does result in some gamma irradiation of Region 1 cells occurs because of the in-service surveillance program which 37 LBP-89-12, 29 NRC at 445.
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O M . at 451.
9 Id. at 451-52.
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16 Y [ applicant] has undertaken . . . [that] includes two cells in Region l1 with_ separate' sets of sample coupons."42 y Because the applicant's. test program intentionally exposes two cells of one. of the Region 1 racks to gamnia radiation, L .the Board imposed a license condition on the amendment designed to monitor the integrity of this Region 1 rack.43 We have reviewed the record underlying all of the Licensing: board's findings on the design and construction of the high density racks and the adequacy of the applicant's criticality calculations and can find no reasonable basis for the charges the intervenor levels at these findings.
The Board's findings are all well supported and adequately explained. Specifically, the record evidence is clear on the normal use of Region 1 of the spent fuel pool and the board's findingc in this regard are correct. There simply is no record support for the intervenor's assertions, and it appears he has confused the meaning of reactivity and radioactivity in his reading of the record. Nor is there any basis for his apparent claims that the applicant's criticality calculations are comehow suspect and cannot form the basis for the Board's findings because the staff did not independently verify them. With minor exceptionc not 42
_Id.
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[ relevant here,~it is the' applicant that bears the ultimate burden of proof' in NRC operating license amendment proceedings and not the staff. Thus,' contrary to the intervencr's' apparent belief, the adequacy of the stafi's review is not the proper focus'for such proceedings.44 w- ,
For the foregoing reasons, we affirm the Licensing Board's decision in LBP-89-12, 29 NRC 441, sustaining the staff's earlier issuance of the operating license amendment.
It is so ORDERED.
FOR THE APPEAL BOARD w N Jw - ) &
Barbara A. Tompkins Secretary to the Appeal Board 44 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 609 (1983).
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UNITED STATES OF AMERICA NUCLEAR RESULATORY COMMISSION in the Matter of l I
FLORIDA POWER AND LISHT COMPANY I Docket No.(s) 50-335-OLA I
(St. Lucie Plant, Unit No. Il i I
I CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing AB DECISION (ALAB-921) 9/20/89 have been nerved upon the following persons by U.S. sail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Administrative Judge Thomas S. Moore, Chairman Alan S. Rosenthal Atomic Safety and Licensing Appeal Atosic Safety and Licensing Appeal l Board Board U.S. Nuclear Regulatory Coesission U.S. Nuclear Regulatory Cossission Washington, DC 20555 Washington, DC 20555 Administrative Judge Howard A. Wilber Administrative Judge Atomic Safety and Licensing Appeal B. Paul Cotter, Jr., Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Cossission U.S. Nuclear Regulatory Cessission Washington, DC 20555 Washington, DC 20555 Administrative Judge Administrative Judge Blenn D. Bright Richard F. Cole Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Cossission U.S. Nuclear Regulatory Consission Washington, DC 20555 Washington, DC 20555 Benjasin H. Vogler Esq. Harold F. Reis, Esq. l Office of the General Counval Ndusan & Holtringer, P.C.
U.S. Nuclear Regulatory Cousission 1615 L Street, N.W., Suite 1000 Washington, DC 20555 Washington, DC 20036 John T. Butler, Esq.
Steel Hector & Davis Campbell Rich 40D0 Southeast Financial Center 4626 Southeast Pilot Avenue Miami, FL 33131 Stuart, FL 34997
.a.
Docket No.(s)50-335-OLA "AB DECISIDN (ALAB-921) 9/20/09 Dated ~at Rockville, Md. this 20 day of September 1989.
Office f the Secretary of the Consission l
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