ML20248G668

Nuclear Regulatory Commission Issuances for June 1989.Pages 465-558

ML20248G668
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Issue date:	08/31/1989
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V29-N06, NUREG-750, NUREG-750-V29-N6, NUDOCS 8910100333
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i NUREG-0750 l' Vol. 29, No. 6 Pages 465-558 1

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l Available from Superintendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication

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are available from National Technical l Information Service, Springfield, VA 22161 l

l Errors in this publication may be reported to the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301 /492-8925) 1 r

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NUREG-0750 Vol. 29, No. 6 Pages 465-558 NUCLEAR REGULATORY COMMISSION ISSUANCES June 1989 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atornic Safety and Licensing Boards (LBP), the Ad-ministrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

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1 The summaries and headnotes preceding the opinions reported herein '

are not to be deemed a part of those opinions or have any independent legal significance.

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

COMMISSIONERS Lando W. Zech, Jr., Chairman Thomas M. Roberts Kenneth M. Carr Kenneth C. Rogers James R. Curtiss l

l Christine N. Kohl, Chairman, Atomic Safety and Licensing Appeal Panet B. Paul Cotter, Chairman, Atomic Safety and Licensing Board Panet

1 CONTENTS Issuances of the Atomic Safety and Licensing Appeal Boards 1

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

(Scabrook Station, Units 1 and 2!

Dockets 50-443-OL,50-444-OL (Offsite Emergency Planning Issues)

MEMORANDUM AND ORDER, ALAB-917, June 16,1989 . . . . . . 465 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

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l (Scabrook Station, Units 1 and 2)

Dockets 50-443-OL-1,50444-OL-1 (Onsite Emergency Planning Issues)

MEMORANDUM AND ORDER, ALAB-918, June 20,1989 . . . . . . . 473' Issuances of the Atomic Safety and Licensing Boards FLORIDA POWER AND LIGHT COMPANY (Ibrkey Point Nuclear Oenerating Plant, Units 3 and 4)

Dockets 50-250-OLA-4,50-251-OLA-4 (ASLBP No. 89-584-01-OLA)

(Pressure-Temperature Limits)

MEMORANDUM AND ORDER, LBP-89-15 June 8,1989 . . . . . . . 4 93 KERR-McGEE CHEMICAL CORPORATION (West Chicago Rare Earths Pacility)

Docket 40-20614fL (ASLBP No. 83-495-01-ML)

MEMORANDUM AND ORDER, LEP-89-16, June 22,1989 . . . . . . 508 PHILADELPHIA ELECTRIC COMPANY (Limerick Oenerating Station, Units 1 and 2)

Docket Nos. 50-352-OL,50-353-OL (ASLBP No. 89-587-03-01 R)

MEMORANDUM AND ORDER, LBP-89-14, June 2,1989 . . . . . . . 4 87 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

(Scabrook Station, Units 1 and 2)

Dockets 50-443-OL-1R2,50-444-OL-1R2 (ASLBP No. 88-858-01-OL)

(Onsite Emergency Planning and Safety Issues - Notification)

FINAL INITIAL DECISION, LBP-89-17, June 23,1989. . . . . . . . . . . 519 lii

VERMONT YAFfdiE NUCLEAR POWER CORPORATION (Vermont Yanime Nuclear Power Station)

Docket No. 50-271-OLA (ASLDP No. 87-547-02-LA)

(Spent Fuel Pool Amendment)

MEMORANDUM AND ORDER, LBP-89-18, June 30,1989 . . . . . 519 Issuance of Director's Decision WOLF CREEK NUCLEAR OPERATING CORPORATION (Wolf Creek Generating Station, Unit 1)

Docket 50-482 DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-89-4, June 5, 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 1

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h Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Christine N. Kohl, Chairman Altn S. Rosenthal Dr. W. Reed Johnson Thomas S. Moore Howard A. Wilber

Cite as 29 NRC 465 (1989) alt.B-917 j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD i

Administrative Judges:

Alan S. Rosenthal, Chairman 1

Thomas S. Moore Howard A.Wilber in the Matter of Docket Nos. 50-443-OL .

4 50-444-OL (Offsite Emergency Planning issues) ,

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et af.

(Seabrook Station, Units 1 and 2) June 16,1989

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I The Appeal Board (1) denies the applicants' motion to strike an intervenor's nor. ice of appeal from a Licensing Board order (unpublished) addressing (but not disposing of) an issue in this operatmg license proceeding, and (2) dismisses the notice of appeal as premature.

RULES OF PRACTICE: APPELLATE PROCEDURE The test of finality for appeal purposes before this agency (as in the courts) is essentially a practical one. As a general matter, a licensing board's action is final for appellate purposes where it either disposes of at least a major segment of the case or terminates a party's right to participate; rulings which do neither are interlocutory. ALAB-894,27 NRC 632,636 (1988) (quoting Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300,2 NRC 752,758 (1975)

(footnotes omitted)).

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RULES OF PRACTICE: APPELLATE ARGUMENTS When a party totally fails to come to grips with pivotal and manifesdy nonfrivolous arguments advanced by an adversary, a permissible inference arises that that pany recognizes the force of the arguments.

APPEAL BOARDS: JURISDICTION Even in the absence of assistance from the litigants, an Appeal Board has some responsibility for looking independently at questions put before it that have jurisdictional overtones.

APPEARANCES Allan R. Fierce, Boston, Massachusetts, for the intervenor Attorney General of Massachusetts.

Thomas G. Dignan, Jr., George II. Lewald, Kathryn A. Selleck, Jeffrey P. Trout, Jay Bradford Smith, Geoffrey C. Cook, and William Parker, Boston, Massachusetts, for the applicants Public Service Com-pany of New Hampshire, et al.

Edwin J. Reis for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER A. On December 30,1988, the Licensing Board rendered a partial initial decision concerned with the State of New Hampshire's radiological emergency l response plan for the portions of the Seabrook facility's plume exposure pathway emergency planning zone (EPZ) located within that state.2 Among the issues considered in that decision was that of " returning commuters," i.e., the impact on the applicants' evacuation time estimates (ETEs) for the EPZ of those commuters whose vehicle trips to their homes located within the EPZ would occur simultaneously with the evacuation trips of other individuals.2 Although apparently making findings on some aspects of the issue, the Board retained jurisdiction over at least a ponion of it. In the Board's words in paragraph 9.60 of the decision:

I su tilP-88-32. 28 NRC 667.

214. at 783-89.

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• Ihe lloard believes that the omission of the commuter trips to home will not have a large effect on the ETEs. Perhaps the answer lies somewhere in the record and we simply haven't I found it. li is extremely unlikely that adding the commuter trips to home will influence a j protective action. Nevertheless the New !!ampshire decisionmakers are entitled to the most accurate ETE reasonably achievable. 'Iherefore the lloard retains jurisdiction over this aspect i of the proceeding so that we may return to the parties for further advice.3 This retention of jurisdiction was later repeated in paragraph 9.130(2) in terms of the "subissue" whether " trips by returning commuters within the EPZ to their ]

homes in the EPZ are properly accounted for in the evacuation time analysis."' l On May 5, the Licensing Board filed an unpublished memorandum and j order addressed to (but not disposing of) the returning commuter issue. In the introductory paragraph, the Board reiterated its statement in paragrqf t 9.130(2) of the December 30 decision to the effect thatjurisdiction was retained over those aspects of the ETEs pertaining to whether the estimates properly accounted for

" trips by returning commuters within the EPZ to their homes in the EPZ."5 At a later point, it referred to its retention of jurisdiction as extending to "only the narrow problem of commuters starting within the EPZ for homes also within the EPZ.** ,

'Althougn the Attorney General of Massachusetts (along with other inter-venors) has pending an appeal from the December 30 decision, the brief on his appeal (in common with the briefs of the other interveners) says nothing of significance on the returning commuter issue. Once the May 5 order surfaced, however, the Attorney General submitted a notice of appeal that was said to be from "those aspects" of the December 30 decision " pertain [ing] to the impact of returning commuters on the evacuation time estimates" over which jurisdiction had not been retained.7 In ali accompanying statement, the Attorney General explained why he believed that no returning commuter matter was as yet ripe for appellate consideration, with the Consequence that the notice of appeal had been filed solely as a " precautionary measure to protect [his] appellate rights."8 According to the Attorney General, a " fair reading" of the December 30 decision indicated that the Licensing Board had retained jurisdiction in that decision over the entire issue of the impact of the returning commuters on the ETEs, not just limited aspects of the issue.' Thus, as the Attorney General sees it, the May 5 order contains the first announcement of the Licensing Board's 314 at 789.

d id at 804.

5Menesn6n and order (May 5.1989), at 1.

• ll at 7.

3 Notice of Appeal of Canmonweahh cf Massachusetts Aturney General James M. shannon (May 16.1989).

s Massachusetts Anorney General's statement Regardmg Prematunmess of Accompanying Notice of Appeal (May 16,1989)theresher

• Attorney Generars statement"] at 1.

' /d at 3.

467

intention to restrict its retention of jurisdiction so as not to consider further l "the impact on ETEs of the large number of commuters whose trips home start outside the EPZ and who will interact with evacuating traffic as they travel home in directions opposite to and across, as well as with, the evacuation traffic."20 In this circumstance, the Attorney General goes on to assert, finality for appellate purposes could not have attached to any portion of the Licensing Board's disposition of the returning commuter issue in advance of the May.5 order.

The Attorney General further maintains, however, that, so long as any aspect of the returning commuter issue remains for Licensing Board consideration, no portion of it can be deemed to have achieved finality and, consequently, be ripe for an appeal.U On this score, our attention is directed to our reiteration last  !

year in this proceeding of the settled principle that

"[t]he te::t of 'ftnality' for appeal purposes before this agency (as in the courts) is essentially a practical one. As a general rnauer. a licensing bt ard's action is final for appellate purposes where it either disposes of at least a rna.jor segrnent of the case or terminates a party's right to participate; rulings which do neither are interlocutory 12 1

In the Attorney General's view, the disposition of a part, but not all, of the j returning commuter issue cannot be deemed the disposition of"a major segment  ;

of the case."38 )

In a May 24 order (unpublished), we called for the views of the applicants 1 and the NRC staff regarding the Attorney General's thesis that the notice of appeal is premature. The applicants' three-page response comes down to this:

the notice of appeal was not premature but, rather, was " extremely late" and, i as such, should be struck." This is because, we are told, the Licensing Board j made it clear in the December 30 decision that it was retaining jurisdiction over 1 only the portion of the returning commuter issue concerned with commuters commencing their homeward trip from within the EPZ. For this proposition, the applicants rely upon paragraph 9.130(2), quoted supra p. 467, as well as upon the Board's earlier discussion in paragraphs 9.52 and 9.53 of the decision.25 Consequently, the applicants maintain, any challenge to the Board's disposition of the portions of the issue over which j.irisdiction was not so retained had to be included in the appeal taken by the Attorney General from the December 30 sold at 4 (emphasis in the original). 1 U

14 at 44. I 12 ALAB-894. 27 NRC 632. 636 (1988)(quoting Toledo Edson Co. (Devis-Bone Nucitar her station), A1AB- l 300. 2 NRC 752. 758 (1975) (footnmes anuned)).

II We discuss the Auorney General's position in greater det,a below. iqrra pp. 469 70.

" Applicants' Motion to strike Notice of Appeal and Response so Appeal Board order of Msy 23 (sic].1989 i (Msy 30.1989) at 2. 4.

33 See 28 NRC at 787-88.

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l decision and could not be advanced several months later through a new notice of appeal.

For its part, the staff agrees with the applicants (for essentially the reasons assigned by them) that the Attorney General is too late in his endeavor to raise at this juncture the Licensing Board's disposition of that portion of the returning commuter issue concerned with commuter trips commencing outside the EPZ.28 The staff further observes (and presumably the applicants do not disagree) that any appeal regarding the matter of trips by returning commuters within the EPZ must await ti.e Board's decision on that matter in accordance with its retention of jurisdiction over it.

B.I. There is considerable merit to the Attorney General's insistence that the May 5 memorandum and order was the first indication that the Licensing Board had not retained jurisdiction over the entire returning commuter issue (rather than just that portion relating to commuters returning to homes in the EPZ from within the EPZ). To begin with, the first reference to the retention of jurisdiction in paragraph 9.60 of the December 30 decision, when read in light of the Licensing Board's preceding discussion, lends substantial credence to the Attorney General's position." Moreover, the reference in paragraph 9.130(2) of the decision to the retention of jurisdiction over the "subissue" respecting

" trips by returning commuters within the EPZ to their homes in the EPZ" does not necessarily aid the applicants and staff. As the Attorney General observes in his opposition to the applicants' motion to strike the appeal, that statement might reasonably be read as applying to, inter alia, the within-EPZ portian of commuter trips originating outside of the EPZis !! was not until the receipt of the May 5 order, with its unambiguous notation that jurisdiction had been retained on!y with respect to the " narrow problem of commuters starting within the EPZ for homes also within the EPI' .,"2' that the Attorney General was placed on sufficient notice that such a reading was not intended by the Board.

2, Even were the applicants and staff on firmer footing in their reliance upon paragraph 9.130(2) of the December 30 decision, it would not perforce follow that the Attorney General was obligated to present his argumants respecting the non-retained portion of the returning commuters issue as part of his pending appeal from the December 30 decision. 'Ihe Attorney General's papers confront 2'see NRC staff Response to Appeal Board order of May [24].1989 and Ap" cams' Motion to stnle Notice of Appeal Gune 2,1989) [hereaner staff Response").

" for example, in paragraph 9.51 the Licensing Board idennfies and discusses the problem of comumscrs smving across the flow of evacuatmg trafric. But in its rmdings the Board docs not malve this nuper, thereby leaving the impression that the rnauer is one of the urresolved inturning comnumer issues *.he Board is leaving open in pgraph 9.60.See Massachuseus Ausney Gemeral's opposition to Appkants' Motion to strike N 1989) at 5-& in our view, contrary to the applicants' claun, such a scadmg was not sendered impermissible by the discussion in paragraphs 9.52 and 9.53 of the December 30 decision.

2'ssa supre p 467 (emphasis supplied).

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I us with the claim that, in all events, no portion of the issue should be deemed ripe for appellate consideration until every portion of it has been decided below.

As we have seen, his belief on that score is founded in good measure upon the well-established test respecting finality for appeal purposes. In this connection, the Attorney General notes that, in its totality, the returning commuters issue arose from a single basis offered in support of ETE contentions of the interveners Town of Hampton and Seacoast Anti-Pollution League. His argument then proceeds:

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l ' llowever one draws the precise line between what is and what is not a " major segment" of a case, a ruling which disposes of part but tua all of a single basis is not at all close to that line. Sudt a ruling cannot reasonably be described as having disposed of a major segment of a case. Furthermore, the Mau AG asserts that beyond the generic argument that a part l of a single basis does not constitute a " major segment," there is an issue-specific reason why the "returnsg commuters" issue shot id not be appealed in piecemal fashim. He

• returning commuters" issue does not break down neatly into clear-cut sub-issues. Returning commuters whe*e trips home or;ginate both within and without the EPZ can and do travel with, against, and across the flow of both New Ilampshire and Massachusetts evacuees traveling outbound on the Ley evacuation routes. "Ihe effects of returning commuter traffic on evacuation trafhe, and vice versa, are interactive, and these interactive ielffects cannot be assessed without running the computer model (that generated the ETEs)in a way that assesses these irecractions on ETEs. De Board's decision to divide commuters into two groups - those whose trips start within the EPZ und those whose trips start outside the EPZ

- and then to retain jurisdiction of only one of the two groups (inside starten) makes little practical sense for the purposes of assessing impact on ETEs. At the very least, the faint distinction between these groups cannot be said w give rise to a " major segment" when the Board disposes of one but not the other.2c

• Ihis line of reasoning may well have flaws. If so, however, they have not been identified by either the applicants or the staff. While not at all hesitant to point out what they deemed to be the error in the Attorney General's assertion that the now-apparent limited nature of the retention of jurisdiction was not disclosed in the December 30 decision, neither of those parties has offered one word in response to his argument that, for appeal purposes, the returning commuter issue should not be bifurcated.2:

20 Anorney General's staranet at 5-6 (crnphasis in the ensinal).

21 Despite the fact that a total of seven lawyers seernmg!y were involved in the preparation of its thrse-page response (see the hstmg of counsel at the outset of dus opinion), the apphcants simply ignore the Anarney General *a elsh in that regard. The most that the staN eners is a charactemation of the reach of the claim that is not sufficiently precise. According to the staff, the Anorney oeneralis caramdmg merely that the tJcensms Board ened by &viding the returning commuter isrue into two pans and that, because this was done in the December 30 dension, the assenion of error had to be included in the carher and tamely appeal from that decision. See staff Respmse at 4. But the quotatimt from the Anorney Generars filing set fonh in the text plamly shows that his claim is not so restneted. While the Attorney General does believe that the dwision makes "bule practical sense " l his pnnetpal pomt is that, even if dwided, the returning canmuters issue "should not be appealed in piecerneal )

fashion." See mywa p. 470. he staff, hke the appheams, is silent on that paus.

I 470 j 2

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l When a party totally fails to come to grips with pivotal and manifestly nonfrivolous arguments advanced by an adversary, a permissible inference arises that that party recognizes the force of the arguments. We are tempted here to adopt that inference and, without further discussion, to accept the Attorney General's prematurity thesis. Even in the absence of assistance from the litigants before us, however, we have some responsibility for looking independently at questions put before us that have jurisdictional overtones. Thus, albeit without the benefit of the views of the applicants and staff, we have undertaken such an examination of the matter of finality. 'Ihat examination persuades us that, although some facets of his analysis may be in doubt, the Anorney General's ultimate conclusion is sound.

It is not clear to what extent the " major segment of the case" test comes into play in instances where, as here, a licensing board renders an initial decision that disposes of a wide variety of issues with a retention of jurisdiction over a portion of one of those issues. We can, however, leave that question for another day. Rr, irrespective of how it might be resolved, there is another compelling reason why no part of the returning commuter issue is as yet ripe for appeal. In a nutshell, we are in agreement with the Attorney General that in no circumstances would it have made sense for him to have included a portion of the issue in the briefing of his appeal of the December 30 decision, leaving the balance of the issue for our scrutiny at such time as the Licensing Board acts in fulfillment of its retained jurisdiction.

To reach that conclusion we need not and do not now decide whether the Licensing Board justifiably has divided the returning commuter issue into segments for the purpose of its own consideration of the issue. Be that as it may, it cannot be gainsaid that the line of separation between the two segments is at best thin indeed. Rr one thing, as the Anorney General observes, the entire issue is rooted in one basis assigned in support of the ETE contentions of two of the interveners.22 More important, it is dif6 cult to perceive a significant difference, from the standpoint of the potential impact upon ETEs, between a commuter trip originating just outside the EPZ and one having a nearby origin barely within the boundary. This is particularly so if both commuters employ essentially the same routes to reach ultimate destinations in the same general area within the EPZ.

Given these considerations, and notwithstanding the Licensing Board's dis-parate approach to the litigation and disposition of it, we are not prepared to take on the returning commuter issue piecemeal.25 In our judgment, this is a single 223 , ,9,, p, a 231n this connection no maner how we resolved the question af the message conveyed by the December 30 decision, either at one time or piecemeal at ddicma umes we nevertheless would have been called upon to examine the whole issue.

471 i

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issue that, at least for appellate purposes, is not properly severable. Rather, it wanants examination by us in its entirety following the development of a full evidentiary record that covers all commuter trips terminating within the EPZ, irrespective of whether a particular trip commenced inside or outside of that zone. In the course of that examination, we will be in a much better position to i determine whether the Licensing Board's bifurcation of the issue for trial and decision was justified and, if not, whether prejudice to the interveners resulted therefrom.

In sum, the Attorney General-is right. He recently filed protective notice of appeal is premature in that no part of the returning commuter issue is l appropriately subject to appeal until the whole issue has been decided by the i Licensing Board.

He applicants' motion to strike the Attorney General's May 16,1989, notice of appeal as too late is denied. The notice of appeal is dismissed on the sole ground that it is premature."

It is so ORDERED.

FOR THE APPEAL BOARD Barbara A.Tompkins Secretary to the Appeal Board l

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"In light of this disposities of the maner, the Anorney Generars motion for an extension of the ume in which to Ele the bnef in support of his pnsecuve appeal is denied as moot.

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Cite as 29 NRC 473 (1989) ALAB-918 '

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman Thomas S. Moore Howard A. Wilber in the Matter of Docket Nos. 50-443-OL-1 50-444-OL-1 (Onsite Emergency Planning)

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al (Seabrook Station, Units 1 and 2) June 20,1989 On the appeal of the interveners from the Licensing Board's denial of their motion to admit an emergency preparedness exercise contention or, in the alternative, to reopen the record, the Appeal Board affirms the denial of the motion to admit the contention. ]

RULES OF PRACTICE: CONTENTIONS (UNTIMELY FILINGS) i The Rules of Practice provide that any contention filed "later than fifteen )

(15) days prior to the holding of the special prehearing conference . . . or where no special prehearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference" is nontimely and can be admitted only upon a balancing of the five lateness factors of 10 C.F.R. Q 2.714(a)(1).10 -

C.F.R. I 2.714(b).

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RULES OF PRACTICE: CONTENTIONS (UNTIMELY FILINGS)

The interveners' contention was late-filed and subject to a balancing of the five lateness factors even though the emergency preparedness exercise on which the contention was based had yet to be held at the time the period for filing contentions in this proceeding closed. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983).

APPEAL BOARDS: STANDARD OF REVIEW (LATE-FILED CONTENTIONS)

Appeal Board review of the Licensing Board's balancing of the factors in 10 C.F.R. E 2.714(a)(1) is strictly limited to determining whether the Licensing Board abused its discretion. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868,25 NRC 912,922 (1987); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-828,23 NRC 13, 20-21 (1986); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707,16 NRC 1760,1763 (1982).

APPEAL BOARDS: STANDARD OF REVIEW (LATE-FILED CONTENTIONS)

To establish that the Licensing Board transgressed the abuse of discretion standard, the interveners have a heavy burden on appeal. It is insufficient for the interveners to show merely that the Board below might legitimately have determined that the five lateness factors of 10 C.F.R. 6 2.714(a)(1) weighed in favor of admitting the contention; rather, the interveners must demonstrate that a reasonable mind could reach no other result. Comanche Peak, 25 NRC at 922; Washington Public Power Supply Systaa tWPPSS Nuclear Project No. 3),

ALAB-747,18 NRC 1167,1171 (1983).

RULES OF PRACTICE: CONTENTIONS (UNTIMELY FILINGS)

It is settled that a late-filed contention must be tendered promptly upon the discovery of the information upon which it is based. Catawba,17 NRC at 1048 (1983). See Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8,23 NRC 241,244-45 (1986).

474

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l ATOMIC ENERGY ACT: IIEARINGS (EMERGENCY PREPAREDNESS EXERCISE RESULTS) l The Commission has restricted licensing hearings on the results of emergency 1 planning exercises to contentions involving " deficiencies which preclude a )

finding of reasonable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan." . Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CL1-86-11,23 NRC 577,581 (1986).

EMERGENCY PLANS: CONTENT (DEFICIENCIES IN)

In defining a " fundamental flaw" the Appeal Board has stated that "[f]irst, it reflects a failure of an essential element of the plan, and, second, it can be remedied only through a significant revision of the plan." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-903,28 NRC 499,505 (1988) (emphasis in original).

APPEARANCES John Traficonte, Boston, Massachusetts (with whom Diane Curran, Washing-ton, D.C., and Robert A. Backus, Manchester, New Hampshire, were on the brief) for the interveners James M. Shannon, Attorney General of Massachusetts, New England Coalition on Nuclear Pollution, and Sea-coast Anti-Pollution League. 4 Thomas G. Dignan, Jr., Boston, Massachusetts (with whom George H.

Lewald, Kathryn A. Selleck, Jeffrey P. Trout, Jay Bradford Smith, and Geoffrey C. Cook, Boston, Massachusetts, were on the brief) for the applicants Public Service Company of New Hampshire, et al.

Gregory Alan Berry for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER After the Licensing Board presiding ova the so-called onsite issues in this operating license proceeding renewed its authorization for a low power testing license for Seabrook, Unit 1, the Massachusetts Auorney General, the New England Coalition on Nuclear Pollution, the Seacoast Anti-Pollution League, and the Town of Hampton, New Hampshire (interveners) filed a joint motion  !

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475 l

to admit a new contention.2 'the interveners claimed that the contention arose out of the then recently concluded graded emergency preparedness exercise for Scabrook station. Alternatively, the interveners' motion requested that the record be reopened to admit their c'ontendon which raised an issue not previously in controversy in the proceeding.2 The Licensing Board denied the interveners' motion in its entirety' and the interveners have appealed.' For the reasons that follow, we affirm the Licensing Board's denial of the interveners' motion.

I.

On June 27, 28, and 29,1988, the applicants held a full participation emergency exercise to test the emergency plans for the Seabrook facility.

An NRC inspection team observed the onsite portion of the exercise and subsequently issued an inspection report dated July 6,1988, setdng out the results of its observations. The report first stated that "[n]o violations were identified" and that the applicants' "[e}mergency response acdons were adequate to provide protective measures for the health and safety of the public."8 In six sections, the report then recounted the details of the inspection and the exercise.

Included among these sections was one listing the strengths and weaknesses of the exercise, stating that

[t]he NRC team noted that the licensee's acdvadon and augmentadon of the emergency organizatiart, acdvation of the emergency response facilities, and use of the facilities were generally consistent with their emergency respanse plan and implementing procedures. The team also noted the fotlowing actions that provided strong posinve indication of their ability to cope with abnormal plant conditions:

1. Very good command and control of all emergency response facilities (ERFs) was (sic] demonstrated;

2. Plant condidons were quiddy recognized and classified;

3. Shift turnover was accomplished smoothly and with no apparent loss of control of the situation;

4. '!he ERFs were tetivated in a timely manner; and

5. Protecdve Action Recommendations (PARS) were prompt and conservative.

Evacuation time estimates were effectively udlized in determining the PARS.'

3 Motion to Admit Enercise Contention er, in the Ahernative, to Reopen the Record (september 16, 1988)

[heremafter."1ntervenvs* Maian"] st 1-9.

2 14 at 912.

3 LBP.89-4,29 NRC 62 (1989).

• The denial of a monon to admit a contention or to reopen the record is normaDy interlocutory and, therefore, not immediately appealable. See 10 C.F.R.12.730(f). At the tune of the instant ruling. howevcr, the lacensing Board aircady had disposed of an other issucs pertinent to low-power operation thereby making this order appealable.

8 2nspection Report Nou 50-443/88-09 Ouly 6.1988) at 1.

• Il at 4.

476

l l

! 1 1

This same section also indicated that it]he NRC identified the following exercise weaknesses which need to be evaluated and "

corrected by the licensee. The licensee conducted an adequate self critique of the exercise that also identified these areas.

1. The Technical Support Center (ISC) an'd Emergency Operations Facility (EOF) staff displayed questionable engineering hdgment and/or did not recognize or ,

address technical concerns (50-443/88 08 01). For example:

- Neither the EOF nor 'ISC staff questioned a release of greater than 7000 curies per second with only clad damage and no wre unccrvery isic];

- Efforts cantinued to restore the Emergency Feedwatet 1%mp after a large break LOCA;

- A questionable fix for the Containment Building Spray system;

- A lack of effort to locate and isolate the release path; and

- No effort was noted to blowdown Steam Generators to lessen the heat load in containment.7 These five examples of purported exercise weaknesses served as the bases for the exercise contention that the interveners sought to have admitted before the Licensing Board, as well as the foundation for their alternative request to reopen the record. The contention asserted that the exercise showed that the present state of onsite emergency preparedness at Seabrook did not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency as required by 10 C.F.R. 550.47(d).

Hence the contention claimed that low. power authorization was precluded even though the Licensing Board had already authorized such a license for the facility.

Specifically, the contention alleged that the exercise revealed fundamental deficiencies in the applicants' emergency plan, which deficiencies, in turn, showed that the applicants' plan did not comply with 10 C.F.R. 6 50.47(b)(15),

requiring the training of those persons who assist in an emergency.8 As the bases for their contention, the interveners relied upon an affidavit of Robert D. Pollard, a nuclear safety engineer with the Union of Concerned Scientists. In his affidavit, Mr. Pollard examined the five examples of purported exercise weaknesses identified in the inspection report and concluded that each instance was much more significant than the NRC staff believed. Unlike the 7

14. at 5. '!he inspection report also hated three addinonal itans as weaknesses but none of these maners is p'ertinent to the issues before as on appeal.

Interveners' Motion. Exhibit 1. Joint Interveraors on-site Enereise contendon.

The contention also alleped that the applicants' anergency plan fa3cd to meet the standards of 10 Cf.R.

Il 50.47(b)(2) (b)(14) and Pan 50. Appendix E. IIV.F. subsectan (b)(2) requires, inter alia, that the applicants have adequate stafrms to provide irutaal facihty accident response in key functaanal areas . . . at all times."

while subsection (b)(14) requires that the opphcanta conduct "[p}eriodic ene ises . . . to evaluate major portions of emergency sesponse capabihties . ." section IVJ of Appendix E also pmvides is the trainmg of the apphcants' employees to ensure they are familiar with their emergency response duties.

477

-m___-.__ - .

t i

staff, he concluded that each of the staff's examples demonstrated a fundamental deficiency in the applicants' emergency plan by showing that the applicants' personnel, contrary to the requirements of the Commission's regulations, were inadequately trained to accomplish the tasks assigned to them in the excfeise. (

Ibr example, the first exercise weakness noted in the report was that neither the TSC nor EOF staffs questioned the exercise release rate of 7000 curies per second when the exercise accident scenario prescribed only fuel cladding damage but no uncovering of the core. In dealing with this matter, Mr. Ibilard's I

affidavit states that it]his failure of both the TSC and EOF staff is an indication that the onsite emergency response personnel's knowledge of the relationship between the magnitude and rate of a radioactive release and the amount of core damage is seriously deficient , , Without a  ;

sound knowledge of the magnitude of releases possible under varying degrees of core damage, l the emergency response staff may not recognize that their analysis of plant conditions is incorrect, leading them to take incorrect protective actions or fail to take the correct protective actions?

i 1

After analyzing each of the other examples, Mr. Pollard reached a similar conclusion, i.e., that the TSC and EOF staffs lacked sufficient knowledge and understanding of plant fundamentals to meet the objectives of the emergency exercise.

• The applicants and the staff opposed the interveners' motion before the Licensing Board.11 After reviewing the parties' initial round of pleadings, the Licensing Board ordered the filing of additional submissions with respect to the

' Interveners' Motion, Af6 davit of Rotert D. Pbilard at 1213.

I'Id. at 812. I II Both the staff and the applicants opposed the admission of the caereise contention. Because the staff took the position that a reopening motion was unnecessary in the circumstances, however,it initially did not address the interveners' alternative motion to reopen the record, Saa NRC staff Response to Joint Interveners' M<nion to Admit Exercise Contemian or, in the Ahernative, to Reopen the Record (october 3,1988) at 2 n.1. The applicants, un the other hand, opposed the imervenors' ahernahve reopening motion and,in amordance with 10 CJ.R. $ 1730(c),61ed affidavita of three expens addressing the five examples of rponed exercise weaknesses from the staff's inspecuon report rehed upon by the totervenors. Appbcants' e to Motion to Admit Enereise Contenuon or,in the Ahernauve, to Reopen the Record (September 28,19 8) at 1014 Ihr example, the affidsvit of the apphcants' Radiological Assesament Manager for Seabrook, James A. MacDonald, addressed the first purponed weakness concerning the appbcants' failure to question the lack of correlation between the release rate of 7000 curies per seced and the status of the core. ILs afridsvis stated that the release figure was suppbed by the exercise comrollers, and pursuant to their guidance, exercise participants were instructed to accept the information as given. Mr. MacDonald's affidsvit also stated that a review of the exe cise showed that this bck of conclahm, an fact, was discussed by the exercise participants and,in any event, the actual response and implementation of all emergency response procedures bv the apphcants' (i.e., sampling and analysis) were not hindered by the purported lack of correlation. lLa affidsvit uded that the observauen contained in the staff inspecuan report was inaccurate and did not evidence any weakness by the Tsc and eof staffs.14.,

Af6 davit of James A. MacDonald at 2-4. The affidavits of the apphcams' two additional experts addressed the I other four examples from the inspection report and sunilarly concluded that the staff's caucasma were unfounded. i 14 AfGdavits of Gary J. Khne and oregg F. sessler.

478

i I

i interveners' alternative motion to reopen the record.n Specifically, the Board difected the parties to file further briefs and supporting affidavits addressing, infer alia, whether the interveners' motion raised a significant safety issue as required by 10 C.F.R. 6 2.734.82 Thereafter, the Board denied the interveners' motion in its entirety.

In its opinion, the Licensing Board first found that the interveners' exercise contention was late-filed because it had not been filed within the time limits contained in 10 C.F.R. 0 2.714(b). 5 Next, the Board assumed that the record of the pmceeding was open and balanced the five- factors set forth in 10 C.F.R. 6 2.714(aXI) for considering the admission of late-filed contentions. The Board concluded that a majority of the factors, and the most important of )

those factors, weighed against admitung the contention.8' Finally, the Board turned to the interveners' alternative motion to reopen the record. Even though tho Commission's Rules of Practice require that a reopening motion raising a contention not previously in controversy must also satisfy the requirements set .

i forth in 10 C.F.R. Q 2.714(a)(1) for nontimely contentions - the same factors 12 Order (Dunctmg Additmnal Briefmg and Affulavits) (october 25,1988).

De Ucensms Board ordered the supplemental nhngs whm the applicants called to its attention a second inspection sport issued by the staff after a further inspection at seabrook, tap.894,29 NRC at 71. See Apphcanas' Response to Joint interveners' Motion for tesve to File a Reply (october 12,1988) at 2-3. Among other things, the samnd inspectum repat addressed and " closed" the items identt6ed in the first apart as exercise weaknesses that needed correctie by the applicams. Inspection Report Na 50-443/8810 (september 28,1988) at 8-10. For e-ample, with rapect to the Erst purponed weakness (ie., the applicants' failme to quecian the lack of carmlation between the nicase rate and the speci6ed core condition), the second repost stated that

[t]he inspector sviewed the ptsyer and coraroller logs for eled TsC. eof and engineering support cerner (esc) staff. These loss revealed that several staff members dad question and/or comment on )

the mismatch between the reactor coolant activity and the nicase rate. subsequent discussions with the Tsc and EOF controllers and playem also indacated that they were aware of this mismatch. in actuahty, the Esc star made very accurate core damage assessments based upon the data supplied by the TsC.

De eof dose assessment staff made accurate dose pm,iections based upon the release rate, as wc3 as cornlation of neld data to the release rate.

14 at 10. After further investigation of the othe four purpated exercise weaknesses, the staff corrhA in each instance that the applicams' actions were appsspriate 14. at 8-10.

13%e appheants* sutrnissim in nsponse to the Ucensing Board's order generaDy recited themr earlier Elings.

See Apphcants' Response to Board Order of October 25,1988 (November 8,1988). De iruervenors' reply included a seemd affidavit of their expert addressing the initial af6dsvits of the applicants' experts and the second staff inspection report. From their analysis, the imervenes concluded that, in the circumstances, the applicants' 1 af6 davits and the second inspectum sport lacked credibility. See Memorandum of Jomt Interveners in Response l to October 25,1988 order of Licensing Board (November 9,1988). De staH's 61mg included the joint affulavit of two staff members involved in the emergency preparedness exercise and it explamed the funher information .

Icadmg the staff to conclude in the second inspectim report why none of the init,ially sponed exercise weaknesses  !

was valid. See NRC Staff Response to Licensms Board Order of October 25,1988 (November 28.1988). De interveners then kled a further response to the stas submission and the staff filed a rejamder. See Joint Interveners' Response to "NRC staff Response to Ucensing Board Order of October 25,1988"(December 7,1988); NRC staff Response to Jous Interveners' Motion for Imve to submit Respmse to NRC staff Response to Ucensing Board Order of October 25,1988 (December 27,1988),

l'LBP-894,29 NRC at 86.

1514 at 67-68.

l'id at 68-71.

479

l I

the Board had niready decided against the interveners - the Board nevertheless considered the motion and found it did not raise a significant safety issue.87 j i

II.

A. Before us, the interveners argue that the Licensing Board erred in ruling that their exercise contention was nontimely and therefore subject to a balancing j of the five factors set forth in 10 C.F.R. 52.714(a)(1) for the consideration of i late-filed contentions. Contrary to this assertion, however, the Licensing Board was correct in finding that the exercise contention was late-ftled. The Rules of Practice provide that any contention filed "later than fifteen (15) days prior to the holding of the special prehearing conference . . . or where no special prehearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference" is nontimely and can be admitted only upon a balancing of the five l lateness factors.

• Here, because the interveners' exercise contention was not j filed within the time constraints of the Commission's rule, it is necessarily late.  !

That there are no exceptions to the time limits for filing contentions under the Rules of Practice is one of the teachings of the Commission's decision in  ;

Catawba. ' There the Commission dealt with the question whether all five of l the late-filed contention criteria apply to a contention based on licensing-related I documents, such as the agency's environmental impact statement, that are not prepared early enough in the licensing proceeding to permit the timely filing of a contention. In answering that question in the affirmative, the Commission held j that section 189a of the Atomic Energy Act, as amended, does not provide an unqualified right to a hearing and does not mandate the automatic admission of a late-filed contention in that situation. It ruled that a party's hearing rights are not offended by a reasonable procedural rule applying all of the factors of 10 C.F.R. 62.714(a)(1) for admitting a late-filed contention, even if the contention could not have been filed within the period for timely filing contentions.20 Catawba is controlling here and establishes that the interveners' contention was late-filed and subject to a balancing of the five lateness factors, even though tbc emergency preparedness exercise on which the contention was based had yet to be held at the time the period for filing contentions in this proceeding closed.2!

17 14 at 71-86. See 10 CIA (173J(a). (4).

38 10 CIA 5 2.714(b).

I' Dads kwr Co. (Catswba Nuclear station. Unita 1 and 2), CtJ-t319.17 NRC 1041 (1983).

20/d at 1046 47.

21 3, ;,,,,,,,c,,. attems to distinguish Catawba e the ground that only licensir.g-related documents were involved in that case while here a maternal licensing event h involved. obviously cannat withstand scrr.iny.

Nenhar the histusy. language. nar reasoning of Casawba suppons such a aution.

(Continued) 480

B. Alternatively, the interveners argue that even if their exercise contention was nontimely, the Licensing Board nevertheless erred in finding that the factors governing the acceptance of a late-filed contention in 10 C.F.R. 62.714(a)(1) weighed against admitting the contention. That section requires that the Licens-ing Board consider the following five factors:

(i) Good cause, if any, for failure to file on time.

(ii) He availabihty of other sneans whereby the peddoner's interest will be protected. f (iii) The extent to which the petitioner's participadon may reasonably be expected to assist in devekping a sound record.

(iv) De extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the peddoner's pardcipation will broaden the issues or delay 1 the proceeding.22

' In rejecting the interveners' contentions, the Board below found that the first, third, and fifth factors weighed against admitting the contention, while the second and fourth factors favored accepting it.

Although the interveners challenge the Licensing Board's balancing of the lateness factors, their argument is silent on the standard we are required to apply l in reviewing that ruling Because the lateness factors were placed in the rules l to give the hearing boards " broad discretion in the circumstance of individual cases,"23 we have noted previously that "neither this Board nor the Commission has been readily disposed to substitute its judgment for that of the Licensing Board insofar as the outcome of the balancing of the Section 2.714(a) factors Moreover, the interveners' rehance upon Union of Concaras4 Scisaristr v. NRC,735 F.2d 1437 (D.C. Cir.1984),

cart drais4,469 U.s. !!32 (1985),is also wide of the mark. In that case, the comt invahdated an amendment to the Comnussion's regulations that climinated the emergency yJ.- exercise as a prerequisite to the agency's operating imensa authorization. By making the excacise pan of the operational inspection program, the amendmmt effectively remo,ed any diaDenge to the caercise frorn the adjudicatory Lcensmg proceedmg. The coun found that, in spite of the amendman, the Commission nevertheless considered the offsite emergency prepandness esercise material to its decision whether to license a plant. It held, therefore, that it was beyond the Comnussion's ,

saatutory authority to remove frorn the licensmg hearings seguired by section 189a of the Atomic Energy Act issum {

matenal to the beensing decision, la seaching this deosion, the coun also rejected the Commission's argument that a pany's hearing rights were prtsected because a pany could always seek to enpen the secord if the exercise adcem6ed fundamental defects in the emergency plans.

In an eHost to cloak themselves in the rationale of the UCS case, the interveners argue that their right to litigate the exercise is burdened when the hearing record is closed before they have an opportunity to 61e contations on the exercise and hese the Ilcensing Board has deemed every June 1988 onsite exercise contention to be fded after the record has ckmed? Bnet of the Appellants on A, peal of LBP-89-04 (February 13,1989) at 7. The shon answer to the intervenes' claun, however, as that the Licensing Board did not deem the exercise contention to be fded after the record was closed at all. Indeed, the Board specificaDy assumed its record remained ora in 6nding the exercise connention was late-61ed and in applying the 6ve factors of 10 C.FA (1714(a)(1). tRP-89-4,29 NRC at 68. Funher, contrary to the intervenes' apparem bebef, the UCS caso does not prohibit placang reasonable pmcedural requnernents upon the 6hng of late.fued contentions. Rather,it holds that a pany's statutory heanng nghts on a material licensing isa ie cannot be made tohinge upon the agency's unfouered dascretion to reopen the record. Sea 735 F.2d at 1443-44.

22 10 C.FA 6 2.714(aXI).

23g,g,,, p,,g g,rvices, lac, (West Valley Reprocessing Plant), CLI ~15 4,1 NRC 273,275 (1975).

i 481 i

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\

\

is concerned.2d Our review in such instances is strictly limited to determining whether the Board abused its discretion." To establish that the Licensing Board transgressed that standard, the interveners have a heavy burden on appeal. It is insufficient for them to show merely that the Board below might legitimately have determined that the five lateness factors weighed in favor of admitting the contention; rather, they must demonstrate that a reasonable mind could reach no I other result.26 in their arguments to us, the interveners have fallen far short of making this showing.

De interveners first dispute the Licensing Board's determination that they failed to demonstrate good cause for not filing their exercise contention in a )

I more timely manner. The Board concluded that the interveners unjustifiably delayed filing their contention until September 16 when, by their own admission, they received the July 6 inspection report on which the contention was cased by July 15. He Board rejected the interveners' claim that they had insufficient information to file the contention until at least the week of August 15 when they received the eight-volume exercise documentation that contained, inter alia, the objectives and scenario sections for the emergency exercise. The Board reviewed the relied upon sections of these materials and found that they were not necessary to the preparation of an appropriate contention. Rather, it found that the July 6 inspection report was all that was needed in order for the interveners to plead their exercise conte.ntion properly. I ne interveners renew this same argument before us. But we cannot find that the Licensing Board acted unreasonably in rejecting their claim. It is, of course, settled that a late-filed contention must be tendered promptly upon the discovery of the information upon which it is based.27 From our examination of the same exercise documentation reviewed by the Licensing Board, we would be hard pressed to conclude, as the interveners argue, that these materials were indispensable to the proper pleading of their contention. Rather, as the Licensing Board found, the pertinent details of the exercise acciderit scenario are all listed in the July 6 inspect'on report.28 Equally unpersuasive is the interveners' claim that this same documentation was necessary for them to learn of the exercise objectives. In particular, the interveners argue that in order to frame their contention they had to know that one of the exercise objectives required the applicants to demonstrate that the l

24 tong Islandlig Aring Co. (shoreham Nuclear Power station, Unit 1), AIAB 743,18 NRC 387,395-96 0983).

D Texas Util4 ties Electric Co. (Comanche Peak Steam Electric Station Unit 1), AIAB-868,25 NRC 912,922  !

0987); Philadelphia Electric Co. (L.irnerick Generstmg Stataan, Units I and 2), ALAB-828,23 NRC 13,20 21 (1986); Detroit Ediron Co. (Enrico Fermi Atarnic Power Plant, Unh 2), ALAB 707,16 NRC 1760,1763 (19821 26 3,, c,,,,c3, Peat. 25 NRC at 922; Warhingsom Padelic Poi.er Serply Syssem (WPPss Nuclear Project No. 3),

AIAB-747,18 NRC 1167,1171 (1983).

27c,,,,,6a.17 NRC at 1048 0983). See Commonwealth Edison Co. (Braidwood Nuclear Power station. Units 1 and 2), CLI 86 8,23 NRC 241,244-45 0986); Limerick,23 NRC at 21, 2sSee Inspection Report Na 50443/88-09 at 3.

482

onsite staff could develop appropriate solutions to reactor problems. Like the exercise accident scenario, this information is found in the July 6 inspection report. The report specifically notes those activities of the applicants' personnel 1 f

that tue NRC inspectors observed during the exercise, including the "[d]etection, classification, and assessment of scenario 'ents" and "[p]erformance of techni-cal support, repair and corrective actions."2' Moreover, this particular exercise objective is, or reasonably should have been, self-evident to the interveners be-cause every onsite emergency preparedness exercise necessarily must test the operators' ability to develop appropriate solutions to the reactor problems caus-ing the emergency." Accordingly, we cannot fmd that the Licensing Board erred in determining that the interveners failed to establish good cause for not sub-mitting their exercise contention much earlier than September 16,1988, when the information on 'which the contention was based was available to them by July 15.

He Licensing Board also concluded that the second and fourth factors tipped the scales in favor of the interrenors, but that these two factors were entitled to less weight than the other three factors. It found, however, that the third factor (i.e., the extent interveners may reasonably be expected to assist in developing a sound record) weighed against the admission of the exercise contention. The Board reiterated that the interveners had an obligation in addressing the third criterion to set out with as much particularity as possible the precise issues they plan to cover, the identity of their prospective witnesses, and a summary of their proposed testimony. It then found that even though the interveners were experienced litigants before the agency, they failed in their original motion to furnish the required information in the prescribed form and, in their reply pleading, they still did little to supply this information. The interveners challenge this determination and argue that the Licensing Board I

placed form over substance in deciding the third factor against them.

De Commission has emphasized "the necessity of the moving party to demonstrate that it has special expertise on the subjects which it seeks to raise."32 i Hence, the Commission has indicated that, in addressing the third criterion, l I

29 1d at 3-4 (emphasis supplied).

"N: haugh we do not sely on it, we noie that the ansite esercise objectives wars announced at a public meeting stiended by one of the counsel for the interveners shordy after the camelusion of the emergency planning esercise, on July 11988,in Partsmouth, New Harnpshire, the Feders! Emrrgency Management Agency sponsored a public meeting on the caercise where vanaus ofncials involved in the esercise entertained questions frcun interested ,

members of the public. The transenpt of that meeting reveals that Alan Fierce, one of the s'sarneys involved in j the seabrook licensing proceeding frorn the Massachusetts Anornsy oeneral's of5ce, raised several questians at l the mecung. TEMA Tr.93, 1454 0. The transenpt also shows that Craig Conkhn, an NRC senim emergency j preparedno6s specialist, explained the agency's inspection of the ensite portion of the exercise. As part of his j presentation, Mr. Conthn enumerated the " major areas" of the escreise conceritrated upon by the NRC inspectors i that included, inwr alia, the abibty of the applicants to formulate and implement actions that could mitigste l further damagos to the plant." IIMA Tr. 56.

33 Brai6eed,23 NRC at 246.

483 1

i

the interveners must not only identify the issues they plan to cover but they also must identify their prospective witnesses and summarize their proposed testimony 32 IIere, finding that the interveners were experienced litigants that were cognizant of these pleading requirements, the Licensing Boa-1 refused to ignore them as the interveners would have it. In the cir- Ices, we cannot fault the Licensing Board for its decision. The intervenom led their obligation to identify the issue they sought to raise by including the exercise contention with their motion to admit it" Dut their assertion that the Licensing Board put form over substance has a hollow ring, given that th:ir initial motion stated only that they would contribute to the development of a sound record "by providing an expert witness"3' and then, in their reply to the responses of the applicants and the staff noting this deficiency, they claimed that "[o]bviously, the contention itself which incorporates the Pollard Affidavit was intended to satisfy this requirement."" The Licensing Board's refusal to countenance such tactics by weighing the third factor against the interveners was not unreasonable.

Finally, the Licensing Board found that the fifth factor (i.e., the extent the contention will broaden the issues or delay the proceeding) militated against admitting the exercise contention, and the interveners do not question this determination. On balance, the Board concluded that the interveners had failed to demonstrate that they prevailed on the five-factor test and it denied the intavenars' motion to admit the contention. Our review of the Licensing Board's consideration of the five lateness criteria does not permit us to find under the applicable review standard that a reasonable mind could reach no other result than to admit the interveners' late-filed exercise contention.

Rlrther, even if we were to find that the Licensing Board should have weighed the third factor in interveners' favor, we still would reach the same result. It is well established that the first factor is the most crucial and, when the proponent of a contention fails to demonstrate good cause for not filing the contention in a more timely fashion, the movant must make a compelling showing on the other four factors.36 Here, as the Licensing Board found, the interveners failed to make a sufficiently compelling showing on factors two through five to overcome their failure to establish good cause. Rlrther, in considering whether to admit a 32 Id San Afassizrippipai.wr & Liths Co. (Grand oulf Nuclear station,IJmis I and 2), ALAB-704,16 NRC 1725, 1730 (1982).

33 5ae ComancAs Peak,25 NRC at 925 n48.

" Interveners' Motion at 10.

" Joint Imervenom' Reply to Respanacs or the Apphcants and the NRC staff to onsite Exercise Comention (october 7,1988) at !$.

Not only did the interveners not identify their arfiant as the pmspecuve witness in their motion to adnut the exercise contentmn but. as the appheants' counsel noted in an unchallenged staternent at oral argument before us.

the imervenors' affiant has previously filed many af5 davits in the scabrook pmceeding yet he has never appeared as a witness in any phase of the proceeding. App. Tr. ss.

3'Braidwod. 23 NRC at 244.

484

i late-filed contention, the second and fourth factors are accorded less weight than the first, third, and fifth factors.37 Therefore, when the relative importance of j the five factors is considered, the most important first factor and the significant l fifth factor weigh heavily against the admission of the interveners' exercise contention. On the other side of the equation, the less important second and fourth factors favor admission and, under our assumption, the significant third i factor would favor admission. But the interveners failed to make a compelling l showing on any of these three factors. In the circumstances, a proper balancing l of the factors would still weigh against admitting the interveners' contention. j Accordingly, the Licensing Board's balancing of the five factors and its denial l I

of the interveners' motion to admit the exercise contention are affirmed.

C. In light of our affirmance of the Licensing Board's denial of the interveners' motion to admit their exercise contention, we need not reach any of the issues involved in the lower Board's consideration of the alternative motion to reopen the record. Dere is, however, an independent basis for affirming the Licensing Board's result that was raised below by the staff. The Commission has restricted licensing hearings on the results of emergency planning exercises to contentions involving " deficiencies which preclude a finding of reasonable 1 assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan."3 In defining a " fundamental flaw" we have stated mat "[f]irst, it reflects a failure of an essential element of the plan, and, second, it can be remedied only through a significant revision of the plan."3' It is clear that the interveners' exercise contention does not meet this standard.

Even if we generously assume that the interveners' exercise con:ention ,

complies with the first requirement of the fundamental-flaw test by properly implicating an essential element of the applicants' onsite emergency plan, i.e.,

training, there is no room for doubt that the contention does not meet the second prong. We have noted that "where the problem can be readily conected, the flaw cannot reasonably be characterized as fundamental."" He gist of the interveners' contention is that each of the purported weaknesses listed in the staff inspection report shows that the staffs of the TSC and EOF were insufficiently trained to accomplish the tasks assigned to the n in the exercise. But contrary to the interveners' apparent belief, the asserted weaknesso., even if accepted as tme, do not implicate the applicants' emergency plan itself at all, and therefore they cannot be remedied "only through a significant revision of the plan",42 Rather, as the interveners' contention recognizes, "[t]he personnel at the TSC I'14 at 245.

38 bag Island Ughting Co. (shoreham Nuclear IN>wer stanon. Una 1), Ct18611. 23 NRC 571,581 (1986).

3%at Island Ughtiat Ca. (shoreham Nuclear Power station, Umt t). A1AB.903. 28 NRC 499,505 0988)

(emphasis in origmal).

• 14 at 506.

^^ 14 at 505.

485

and EOF are expected to use the emergency operating procedures to assist in recognizing an emergency condition in order to prescribe the actions necessary to correct the condition."*2 At most, the interveners' contention highlights deficiencies that would require minor modifications to several plant operating procedures, and the interveners do not claim that such procedures are part of the emergency plan. Moreover, even if we further assume that the applicants' emergency plan was somehow directly involved in these purported deficiencies, such problems are readily corrected by providing supplemerital training to some of the applicants' personnel; such training does not involve any revision, much less a significant one, of the emergency plan. Thus, the interveners' contention fails to assert a fundamental flaw, and we affirm the Licensing Board's denial of the interveners' motion for this additional reason.

Ibr the foregoing reasons, the Licensing Board's denial of the interveners' motion to admit their exercise contention, LBP-89-4,29 NRC 62, is affirmed.

It is so ORDERED, FOR THE APPEAL BOARD Barbara A. Tbmpkins Secretary to the Appeal Board i

l I

427 ,,,,,,,,,,, Motion, Exhibit 1.Joua Imervenars On-site Exercue Canention, at 2. l 486

- - _ _ _ _ - _ - _ - - _ - _ . - - - - - - ______-_._a

l 1

Atomic Safety and Licensing l Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter, *Chairnian Robert M. Lazo, *Vice Chairman (Executive)

Frederick J. Shon, 'Vice Chairman (Technical)

Members .

4 l

I Dr. George C. Anderson Dr. Cedet H. Hand, Jr. Dr. Emmeth A. Luebke Charles Bechhoefer* Jerry Harbour

• Dr. Kenneth A. McCollom l Peter B. Bloch* Dr. David L. Hetrick Morton B. Margulies*

Glenn O. Bright

• Ernest E. Hill Gary L. Milhollin Dr. A. Dixon Callihan Dr. Frank F. Hooper Marshall E. Miller James H. Carpenter

• Helen F. Hoyt* Dr. Oscar H. Paris

• Dr. Richard F. Cole

• Elizabeth B. Johnson Dr. David R. Schink Dr. George A. Ferguson Dr. Walter H. Jordan Ivan W. Smith

• Dr. Harry Foreman Dr. Michael A. Kirk-Duggan Dr, Martin J. Steindler Richard F. Foster Jerry R. Kline* Seymour Wenner John H Frye ill* Dr. James C. Lamb lli Sheldon J. Wolfe*

James P. Gleason Gustave A. Linenberger*

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' Permanent panelmembers

Cite as 29 NRC 487 (1989) LBP-89-14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Morton B. Margulies, Chairman Dr. Jerry Harbour Dr. Jerry R. Kline in the Matter of Docket Nos. 50-352-OL 50-353-OL (ASLBP No. 89-587-03-OL-R)

PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, June 2,1989 Units 1 and 2)

MEMORANDUM AND ORDER On May 30,1989. Counsel for Philadelphia Electric Company, Nuclear Reg-ulatory Commission Staff, Federal Emergency Management Agency, Pennsylva-nia Emergency Management Agency, Pennsylvania Department of Corrections, and the Graterford inmates submitted a stipulation in the captioned proceeding -

for the purpose of resolving the interest of the Graterford inmates in the pro-ceeding without the need for a formal hearing. The Commission, by Order of April 14,1989 (unpublished), defined the issue to be resolved in this proceeding as whether the radiological emergency response plan relating to the Graterford Institution complies with the standard of 10 C.FR. 650A7(b)(15) insofar as radiological emergency response training is provided to civilian personnel (e.g., ,

bus and ambulance drivers) who may be called upon to assist in the event of an emergency that would require evacuation of the Graterford prison. The Third Circuit Court of Appeals remanded the issue to the Commission in an opinion  ;

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4 of February 28, 1989, granting a petition for review filed by the Graterford inmates in Martin v. NRC, Nos. 85-3444, 87-3190, and 87-3565.

He Stipulation, a copy of which is attached and made a part hereof, recites that the Pennsylvania Department of Corrections, having concluded that because of uncertainties as to the training of civilian bus drivers, has revised its Radiological Emergency Response Plan by substituting the use of Department of Corrections employees as bus and ambulance drivers rather than employees of bus companies.

In the Stipulation, the parties agree, inter alia, that all evacuation bus and ambulance drivers will be employees of the Department of Corrections; that they will receive specified requisite training; and that app opriate changes will be made in the Graterford Radiological Emergency Response Plan.

De parties to the Stipulation further agreed that the concerns expressed by the Graterford inmates in their remaining contention have been met, and that the Stipulation provides reasonable assurance that the radiological response plan relating to the Graterford prison complies with the standard of $50.47(b)(15) that radiological emergency response training will be provided to Department of Corrections personnel (e.g., bus and ambulance drivers) who may be called upon to assist in the event of an emergency that would require evacuation of the Graterford prison.

He Stip'ulation then provides that the remaining contention of the Graterford inmates shall be dismissed and the proceeding before the Licensing Board terminated. It is to be made effective on notification to the Board and parties by the Department of Corrections that at least seventy-five of the drivers have received the described training provided; however, in the event that such notification is not given, the proceeding will be reopened on request by the Graterford inmates.

At the outset, we wish to commend the parties for their immediate willingness to resolve the issue at hand through cooperation rather than confrontation.

He Licensing Board has reviewed the Stipulation in its entirety. De Board accepts and approves the agreement insofar as it provides: that Department of l' Corrections personnel will act as the bus and ambulance drivers in the event of an emergency that would require evacuation of the Graterford prison; that the personnel will be provided with the described training; that the appropriate changes will be made in the Graterford Radiological Emergency Response Plan; that the concerns expressed by the Graterford inmates in their remaining contention have been met; and that the radiological emergency response plan relating to the Graterford prison complies with the standard of $50.47(b)(15) that radiological emergency response training will be provided to the Department of Correcdons personnel as required.

De Licensing Board does not accept and approve of that part of the agreement that provides for the dismissal and termination of the proceeding i

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when notification is given to the Board and the parties by the Department of Corrections that at least seventy-five of the drivers have received the described training.

If the Licensing Board were to approve the process for terminating the proceeding as called for in the Stipulation, it would cede its responsibility for regulating the course of the proceeding to the parties, which it cannot do. The

! Licensing Board cannot act as a mere observer in the proceeding over which I it is charged to preside. We will terminate this proceeding at the request of the parties when we are satisfied that the requirements for doing so are met.

We would have no hesitancy about passing upon a request by the parties for dismissal and termination of the proceeding when seventy-five of die drivers have been trained, the condition provided for in the Stipulation.

Another inadequacy in the process proposed in the Stipulation for terminating l

the proceeding is the failure to set any time limits for the actions to be taken to I conclude the proceeding. There is no schedule indicating when the seventy-five drivers will be trained or within which time period the Graterford inmates can request that the proceeding be " reopened."

The Commission in its Order of April 14,1989, directed that this proceeding shall be expedited to the extent consistent with fairness to the parties. It is l

the Board's responsibility to see that this is accomplished. The parties shall submit to the Licensing Board at the end of 30 days a progress report specifying the steps already taken to implement the requirements of the Stipulation and a schedule for completing the remainder.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Morton B. Margulies, Chairman ADMINISTRATIVE LAW JUDGE Bethesda, Maryland June 2,1989 STIPULATION WHEREAS, the parties to this proceeding and intert.sted Comraonwealth and Federal agencies with interests relevant to the disposition of the remain-ing contention of the inmates at the State Correctional hstitution at Graterford (Graterford inmates) are the Nuclear Regulatory Commission Staff (NAC Staff),

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the Federal Emergency Managenient Agency (FEMA), the Pennsylvania Emer-gency Management Agency (PEMA), the Pennsylvania Department of Correc-tions, Philadelphia Electric Company (PECO), and the Graterford inmates; and WHEREAS, the United States Court of Appeals for the Third Circuit issued an opinion on February 28,1989, granting, inter alia, a petition for review filed by the Graterford inmates in Martin v. NRC, Nos. 85-3444,87-3190, and 87 3565 ordering the NRC to give additional consideration to an inmate contention questioning whether the radiological emergency response plan relating to the Graterford prison complies with the standard of 10 C.F.R. G 50.47(b)(15) that radiological response emergency training is provided to civilian personnel (e.g.,

bus and ambulance drivers) who may be called upon to assist in the eveat of an emergency that would require evacuation of the Graterford prison; and WHEREAS, the Commission issued an Order on April 14,1989, requiring further proceedings before an Atomic Safety and Licensing Board in compliance with the Opinion of the Court of Appeals and a prehearing conference before the duly appointed Atomic Safety and Licensing Board was conducted on May 12,1989, in furtherance of the Order of the Commission; and WHEREAS, due to uncertainties as to the training of civilian bus drivers, the Department of Corrections has revised its Radiological Emergency Response Plan by substituting the use of Department of Corrections employees as bus and ambulance drivers rather than employees of private bus companies; and WHEREAS, the panies declare their desire to resolve the Graterford inmates' remaining contention by a stipulated agreement to avoid the necessity of a formal hearing; IT IS THEREFORE STTPULATED AND AGREED AS FOLLOWS:

1. At the present time, there are approximately 3000 inmates in custody at Graterford. The Department of Corrections in its " Response of Commonweahh of Pennsylvania Department of Corrections Request for Information Raised at the February 27,1985 Atomic Safety and Licensing Board Conference" stated the evacuation plan called for the use of 58 buses with an additional 13 buses in reserve, each with a capacity of 40 inmates per bus. De revised plan calls for 66 buses and an additional 34 in reserve, with a maximum capacity of 45 per bus.

2. All bus drivers will be employees of the Department of Corrections and will have appropriate Pennsylvania Class Il licenses as necessary to operate the

! vehicle. There will never be more than two or three nonambulatory inmates housed in the Graterford medical facility at any time, seriously ill inmates being sent to outside hospitals. The Department of Corrections will provide ambulances to evacuate the nonambulatory inmates. He ambulance drivers will be trained Department of Corrections employees.

, 3. PEM A and the Department of Corrections will review and approve in the advance of training classes a standardized lesson plan. He plan will be similar 490

in content and format to the plan which was (reviously approved and utilized in the training of school bus drivers who wwld participate in an evacuation of schools located within the plume exposure pathway emergency planning zone for the Limerick Generating Station. Appropriate modifications will be made 1

' with respect to the particular mission of evacuating the Graterford inmates.

4 Once the lesson plan has been approved, PECO will furnish the services ,

j of its consultant, Schneider Engineers, whose employees will conduct a radio-logical training program at various times and places for D:partment of Correc- l i

tions personnel as necessary to complete training. The training would include a l

general orientation and overview of radiological principles, emergency manage-ment principles, government response to disaster, levels of radiation during an incident at a fixed nuclear facility, decontamination, and monitoring procedures.

Best efforts will be made to complete the training within thirty days after the 1 l

Licensing Board has approved this Stipulation. The parties recognize that the temporary unavailability of some individuals may, as a practical matter, require that additional training classes be held beyond this period. Retraining shall be in accordance with NUREG-0654, Planning Standard O.

5. The Department of Corrections is preparing appropriate changes to the Graterford Radiological Emergency Response Plan, including changes in capacity not relevant to this proceeding. Revisions undertaken by the Department of Corrections will be consistent with the estimates of the time of evruation included in the Plan. All revisions pertinent to training will be provided to the Graterford inmates

• coensel and technical coasultant for comment Eve.y reasonable effort will be nude to accommodate any concern expressed by the inmates through their representatives.

WHEREFORE, the parties agree and stipulate that the concerns expressed by the Graterford inmates in their remaining contention have been met; and that the stipulation provides reasonable assurance that the radiological emergency response plan relating to the Graterford prison complies wit the standard of 10 C.F.R. 5 50.47(b)(15) that radiological emergency rerponse training will j be provided to Department of Corrections persennel (e.g , bus and ambulance drivers) who may be called upon to assist in the event of an emergency that would require evacuation of the Graterford prison; and WHEREFORE, the parties further agree and stipulate that the remaining con-tention of the Graterford inmates shall be dismissed and the proceeding before this Licensing Board terminated. Dismissal of this contention and termination of the proceeding sha'l be effective upon notification to the Board and par-ties by the Department of Corrections that at least 75 of the drivers have re-ceived the training described aoove, provided, however, that in the event such i

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j notification is not provided, the proceeding will be reopened on request by the Graterford inmates.

/S/ /S/

Michael B. Hirsch, Esq. Mark L. Goodwin, Esq.-

Counsel for Federal .

Counsel for Pennsylvania -

' Emergency Management Agency Emergency Management Agency l

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/S/ /S/

Angus R. Love, Esq. 'IYoy B. Conner, Jr., Esq.

Counsel for Graterford Counsel for Philadelphia <

' Inmates Electric Company 4

61 .- SI Theodore G. Otto, III, Esq. ' Joseph Rutberg, Esq.

Counsel for Pennsylvania Counsel for United States Department of Corrections Nuclear Regulatory Commission Staff i,

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l Cite as 29 NRC 493 (1989) LBP-89-15 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

B. Paul Cotter, Jr., Chairman Glenn O. Bright Jerry Harbour in the Matter of Docket Nos. 50 250-OLA-4 50-251-OLA 4 (ASLBP No. 89-584-01-OLA)

(Pressure Temperature Limits)

FLORIDA POWER AND LIGHT COMPANY (Tutsy Point Nuclear Generating M .nt, Units 3 and 4) June 8,1989 Ibliowing a request for a hearing seeking to challenge the issuance oflicense amendments under 10 C.F.R. 550.91(a)("no significant hazards consideration"),

the Licensing Board rejects one contention for lack of jurisdiction and accepts two contentions for litigation.

RULES OF PRACTICE: CONTENTIONS, ADMISSIBILITY OF A proffered contenti? . must fall within the scope of the issues set out in the Federal Register notice of opportunity for hearing. See, e.g., Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616,12 NRC 419,426 (1980);

Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,3 NRC 167,170-71 (1976).

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RULES OF PRACTICE: CONTENTIONS, ADMISSIBILITY OF l i

Petitioners need only set forth the bases, i.e., the reasons, for each contention j with reasonable specificity and need not detail the evidence in support thereof. l Afississippi Power & Light Co. (Grand Gulf Nuclear Station, Units I and 2),

ALAB-130,6 AEC 423,426 (1973). llorever, " reasonable specificity" meant j that the bases must be sufficiency detailed so that they: (1) demonstrate that the issue is admissible and requires further inquiry into the matter; and (2) put j- the parties on notice as to what they will have to oppose or defend.

RULES OF PRACTICE: CONTENTIONS, ADMISSIBILITY OF The admissibility of contentions must be decided on a case-by-case basis.

Philadelphia Electric Co. (Peach Bottom Atomic Pr.wcr Station, Units 2 and 3),

ALAB-216,8 AEC 13,20 (1974).

RULES OF PRACTICE: CONTENTIONS, ADMISSIBILITY OF .J The Commission's rules do not permit admitting a contention that constitutes an attack on a Commission regulation absent special circumstances that would .

justify waiving the prohibition.10 C.F.R. 5 2.758.

]

RULES OF PRACTICE: CONTENTIONS, ADMISSIBILITY OF.

A contention that seeks to address an issue previously considered in an earlier pmceeding cannot be admitted for relitigation in a subsequent proceeding.

Portland General Electric Co. (Trojan Nuclear Plant), LBP-78 40,8 NRC 717, 745 (1978), aE'd, ALAB-534,9 NRC 287 (1979).

LICENSING BOARD (S): JURISDICTION Licensing boards derive their subject matter jurisdiction from the orders, rules, and regulations promulgated by the Commission. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985).

LICENSING BOARD (S): JURISDICTION The Commission has made the Staff's "no significant hazards consideration" under 10 C.F.R. 550.91(a) determination iinal and reserved only a discretionary right of review ir the Commissica itself. There is no right to appeal the Staff's hazards determination, itself, ta the licensing boards or any other body within 494

4 the agency. Pacific Gas And Electric Co. (Diablo Canyon Nuclear Power Plant. l Units 1 and 2), CLI-86-12,24 NRC 1,4 (1986), rev'd in part on other grounds,

) San Luis Obispo Mothersfor Peace v. NRC,799 F.2d 1268 (9th Cir.1986).

i RULES OF PRACTICE: CONTENTIONS, ADMISSIBILITY OF I

Where a prior license amendment, handled as an administrative matter, was ,

not accompanied by a notice of opportunity for hearing and thus no party was -]

available that did challenge or could have challenged the amendment, a petitioner  ;

is not estopped from raising the issue in a subsequent license amendment J proceeding. See Commonwealth Edison Co. (Braldwood Nuclear Power Station, I l

Units 1 and 2), LilP-85-11,21 NRC 609,621-24 (1985), rev'd and remanded on other grounds, CLI-85-8,23 NRC 241 (1986).

1 TFCIINICAL 1sSUES DISCUSSED General Desiga Criteria 31,10 C.F.R. Part 50. Appcadis. A; Fracture Toughness Requirements,10 C.F.R. hrt 50, Appendix G; Reactor Vessel Material Surveillance Program Regnirements,10 C.F.R. Part 50, Appendix II; Reference Temperature for nil-ductility trcnsi: ion.

MEMORANDUM AND ORDER (Ruling upon Contentions) 1 Petitioners Center for Nuclear Respon;ibility and Joette Lonon chrJlenge li-cense amendments issued to Florida Power and Light Company for its Wrkey Point Units 3 and 4 nuclear power plants. The license amendments change the technical specifications governing pressure / temperature limits for the operation of the units. The petition to intervene and request for hearing was timely fiied and subsequently amended. Neither Licensee nor the Nuclear Regulatory Com-mission Staff (Staff) challenge Petitioners

• standing to intervcne. Consequently, the only issue before this Boaro is whether Petitioners have presented an admis-sible issue (" contention") to be litigated.

I. TCCIINICAL BACKGROUND hrkey Point Unia 3 and 4 are 760-Mw pressurized water reactois. The two units began full-power operation in 1972 and 1973, respectively, with 4

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pressure / temperature (P/r) limits specified for the next 10 years of effective full-power operation.

P/r limits are specified because these two factors in combination with radiation affect the integrity of the material making up the vessel in which nuclear reactions take place. He remor vessel must be designed to withstand these pressures and temperatures during operation as well as the changes in P/T when the reactor is started up, cooled down, or tested for leaks. See 10 CF.R. Part 50, Appendix G.

The NRC replatory scheme setting out these requirements is found in Ibrt 50 of Title 10 of the Code of Federal Regulations. Some fifty-three General Design Criteria for nuclear reactors are set out in Appendix A to Part 50. General Design Criterion 31 (GDC 31) sets out design criteria for fracture prevention of the reactor coolant pressure boundary, which includes the reactor vessel beltline materials. It requires that when stressed under operating, maintenana, testing, ard postulated accidcnt ccadioxms (1) the boundary behaves in a nonbrittle manner and (2) the preability of rapidly propagating fracture is minimized. He d: sign c'.aP. reflect cmsideratbn of servia temperatures and other cedi+_ ions of the boundary material under operating, mamtenance, testing, and postulated accidern condidens and the ur. certainties in determining (1) material properdes,(2) the effects of irrad!ation on material prrycrties, (3) residual, steady state and transient stresses, and (4) size of flaws.

Section 50.60 sets out acceptance criteria for fracture prevention measures for reactor vessel materials at the beltline during normal operation, and Appen-dices G, " Fracture Toughness Requirements," and II, " Reactor Vessel Material Surveillance Pmgram Requirements," to Part 50 describe specific criteria that the Wrkey I% int reactor vessel matenals must meet to satisfy the design criteria of GDC-31.

%c significance of these requirements is summed up in the Staff's Safety Evaluation of Licensee's requested P/T changes at page 6:

%e fracture toughness of the steel in a reactor pressure vessel wall is determined primarily by the following factors: (1) the particular material (composida and metallurgical history),

(2) the accumulated irradiadm level (neutron fluence) to whi:h the material is exposed, and (3) the temperature of the material In a reactor presrure vessel, significant loadings resuh frorn the internal pressure and thermal gradient thmugh the vessel wall thickness during I heatup and cool down. Since the fracture toughness of the vessel material decreases with decreasing ternperature, P/r limits are required during normal reactor operadon and tests to emtrol opersnmal stresses to the reactor vesset liarthermore, because the fracture toughness of the vessel material decreases with increasing neutron irradiadon (i.e., time duradon of operadun), a material surveillance program is required to monitor changes in the fracture 3

Because of outagts. planned and unplanned, the two units had not schieved 10 years of fun-powc operation by the end af 1988. Tr. *ll.

496

toughness properties d the reactor vessel beltline material over the lifetime of the vessel. ,

The P/T limits are periodically revised to take into account additional tesi data from the i surveillance program cm the changes in the fracture toughness properties dre to irradiation.

He implementation of these requirements for Wrkey Point is set out in the NRC Approved Technical Specifications governing the operation of the plant.

In 1988, the Licensee requested license amendments for both units revis-ing the P/T limits and extending their applicability. Two license amendments (No.134 to License No. DPR-31 for Unit 3 and No.128 to License No. DPR-41 for Unit 4) were is:,ued January 10,1989, with the Staff Safety Evaluation and Fi-nal Determination of No Significant Hazards pursuant to 10 C.F.R. i 50.91(a)(4)

(1988). The amendments incorporate revised P/r limit curves applicable up to )'

20 Effective Full-Power Years (EFPY) of service life for each Wrkey Point unit.

See " Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment No.134 to Pacility Operating License No. DPR-31 and Amendment No.128 to Facility Operating License No. DPR-41," issued January 10,1989, at 10.

The contentions sought to be admitted here charge that the revised P/r limits will jeopardize the safety margins required for the beltline (roughly the midpoint) of the reactor vessels at Turkey Point. Petitioners contend that the materials making up the beltline may become brittle and be subject to rapidly propagating fracture.

The effect of neutron radiation of reactor vessel materials (" neutron embrittle-ment") at Wrkey Point is monitored t'hrough an integrated surveillance program approved by the Staff in 1985. Integrated surveillance prograrr.s for like reactors authorize the use of samples from either reactor in measuring neutron embrit-tlement.10 C.F.R. Part 50, Appendix H, sII.C. Capsules containing the same materials that make up the pressure vessel beltline were inserted in the vessel at the beltline at the time the reactors became operational. The most limiting, i.e., vulnerable, of these materials is the material making up the welds at the beltline.

He reference temperature fer nil-ductility transiticn, "RT," is the refer-ence temperature of certain materials such as ferritic metals at or below which the materials may fail in a brittle, instead of a ductile, manner if high stress conditions occur. RTm is also referred to as the nil-ductility temperature. The nil. ductility temperature is affected by both the composition of the material and its neutron radiation history. The nil ductility temperature increases with: (1) higher initial copper (and certain other al'oy) content of the material; and (2) neutron irradi;. tion over time, i.e., neutron embrittlement. Typically the fracture toughness (or " strength") of the metal will increase with increasing tempera-ture and decrease with decreasing temperature. In the region of the nil-ductihty temperature the fracture toughness decreases very abruptly as the temperature  !

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decreases. To determine a change in RT, due to neutron bombardment, speci-mens are irradiated in the capsules mounted in the reactor vessel to: (1) identify any change in the fracture toughness of those sample materials as a result of irradiation; and (2) predict future changes in RT, (based on future neutron ,

irradiation) for the rtactor vessel materials that the samples represent. Tr.12, j 51-54,72-76,81-82; see also 10 C.F.R. Part 50, Appendices A (General Design i Criteria 31 and 51), G, and H.

II. DECISION For a contention to be admissible, our regulations require that the bases for the contention must be stated with reasonable specificity.10 C.F.R. 6 2.714(b)(2)

(1988). That requirement has been exhaustively interpreted in Commission case law, holding, inter alia, that the contention proffered must fall within the scope of the issues set out in the Federal Register notice of opportunity for hearing. )'

See, e.g., Commonwealth Edison Co. (Zion Stanon, Units 1 and 2), ALAB-616, 12 NRC 419,426 (1980); Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,3 NRC 167,170-71 (1976).

Petitioners need only set forth the bases, i.e., the reasons, for each contention and need not detail the evidence in support thereof. Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 4 426 (1973). However, " reasonable specificity" means that the bases must be sufficiently detailed to that they: (1) demonstrate that the issue is admissible and requires further inquiry into the matter; and (2) put the parties on notice as to what they will have to oppose or defend. The admissibility cf contentions must be decided on a case-by-case basis. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216,8 AEC 13,20 (1974).

On the other hand, our rules do not permit admitting a contention that  ;

constitutes an attack on a Commission regulation ubsent special circumstances that would justify waiving the prohibition. 10 C.F.R. 9 2.7.58 (1988). See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant). ALAB-837,23 NRC 525,544 46 (1986); Kansas Gas and Electric Co. (Wolf Creek Generating Station, ' Unit 1), ALAB-784,20 NRC 845 (1984); Commonweal;h  !

Edison Cc. (Byron Nuclear Power Station, Units 1 and 2), LBP 80-30,12 NRC 683 (1980). Nor can a contention be considered which addresses an  ;

^

issue previously considered in an earlier proceeding. Portlard General Electric Co. (Trojan Nuc!:ar Plant), LBP-78-40, 8 NRC 717,745 (1978), aff'd, ALAB-534,9 NRC 287 (1979).

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A. Contention 1 Contention 1 presents a question of law and reads as follows:

"Ihat the Nuclear Regulatory Commission Staff's Final Determinadon of No Significant llazards Consideradon issued on January 10,1989 in support oflicense amendment nos.134 and 128 issued to allow FPL to revise the pressure / temperature limits for Turkey Point nuclear ur:ite 3 and 4 respecdvely, is based on incornplete, faulty and non conservative data, is in errar, and should be reviewed by this Atomic Safety and Ucensing Board in order to protect l the pubhc health and safety frorn a loss of pressure vessel ir.tegrity and subsequent meltdown.

Petitioners' Amended Request for Hearing and Petition for Leave to Intervene at 5-6 (" Petition").

As bases for the contention, Petitioners state that the Staff's No Significant Hazards determination is erroneous because it is based on substantial uncertainnes, incomplete data, and non-conservative assumptions in the prediction of adjusted reference ternperature nilatuctility-transfer (RTNDT) for the reactor j units. )

J Petition at 6. Petitioners conclude that the Staff's alleged error could result in vessel failure a'n d a meltdown, thus warranting action by this Board to protect the public health and safety by reversing the Staff's determination.

Both 1.icensee and Staff oppose admission of Contention 1 on the ground that this Licensing Board lacks jurisdiction'n 'to consider the matter. We agree.

Section 191 of the Atomic Energy Act, as amended, authorizes the Commis- 1 sion i to estabbsh one & more atomic safety and licensing boards . . . to conduct sudi hearings as  ;

the Commission rmry direct and make such intermediate orfusa! decisions ar the Commission l way..:athorite .  !

42 U.S.C. 52241 (1982) (empnasis added). Thus, Licensing Boards derive their subject matter jurisdiction from the orders, rules, and regulations promulgated by the Commission. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825,22 NRC 785,790 (1985). In the instant case, the Staff's No Significant Hazards determination was made pursuant to 10 C.F.R. 650.91(a)(4)

(1988). That section was promulgated along with 10 C.F.R. 650.58(b)(6) which raides that l l

No petition or other request for review of or hearing on the staff's significant hazards con- l siders'. ion determinadon will be entertained by the Commission. 'Ihe staff's determination  !

is final, subject only to the Commission's ducredart, or> its own inidative, to review the l dormination.

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ne statement of considerations accompanying the issuance of 5650.58 and  !

50.91 makes even more explicit the foregoing reservation ~of jurisdiction by the l Commission. It provides that he Commission also explained in the interim Enal rules that while the substance of public comments on the no significant hazards consideration 6nding could be litirtated in a hearing, when one is held, neither the Commission nor its Licensing Boards or Presiding Of6cers would entertain hearing requests on the NRC staff's substantive 6ndings with sespea to these comments 51 Fed. Reg. 7744,7765 (1986). In short, the Commission has made the Staff's determination on hazards final and binding and reserved only a discretionary right of review in the Commission itself. Dere is no right to appeal the "no significant hazards determination" itself to the licensing boards or any other body within the agency. Factftc Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-86-12,24 NRC 1,4 (1986), rev'd in part on other grounds, San Luis Obispo hiothersfor Peace v. NRC,799 F.2d 1268 (9th Cir.1986L Licensing Boards have twice before recognized this limitation on their jurisdiction in the context of spent fuel pool expanrion proceedings. Florida i Power & Light Co. (SL Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452,456-57 (1988); Vermont Yankee Nuclear Power Corp; (Vermont 1 Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 844 (1987). However, )

in the St. Lucie case, the Licensing Board noted at 457 that

[t} hat limitation on this Board's authority is distinguished frorn our authority, after a Gnding -

is made and the license issued to consider and take correaive action on any threat to the public health and safety disclosed at any subsequent hearing.

nat principle applies in the instant case.

However, with respect to the Staff's no significant hazards determination itself, the law is otherwise clear. Contention 1 must be rejected as beyond the jurisdiction of this Board, i

l B, Contention 2 Contention 2 states: l Rat the revised temperature / pressure limits that have been set for Turkey Point Unit 4 are non<onw.rvative and will cause that reactor unit to exceed the requirements of General i Design Criterion 31 of Appendix A to 10 CFR Part 50, which requires that the reactor coolaut pressure boundary be designed with a suf6cient margin to insure that, when stressed under operating. maintenance, testing. and postulated accident conditions, (1) the bourglary 500

behaves in a non-brittle manner and (2) the probabihty of a rapidly propagating fracture is minimized.

lYtitioners contend that the new pressureAemperature limits could cause the reactor vessel to exceed these requirements because the Ucensee has based its calculation of the predicted -

RTNDT for Unit 4 partly on surveillance capsule V test resuhs frorn Turkey Point Unit 3 rather than predicting the RINDT for Unit 4 based on Unit 4 capsule V surveillant capsule data - a practice which is not scientific, not valid, and could cause the Unit 4 reactor to behave in a britt'e manner whida would make the chances of a pressure vessel failure and sendtant mehdown more likely. Petitioners contend that predictions of RINDT and pressureAemperature limits derived from the shift in nil-ductihty transfer should be based only on plant-specific Unit 4 data, especially in light of the facs that the only tests ever l performed on Unit 4 weld specimens demonstrated that the weld material in the Linit 4 )

3 vessel was 30% more brittle than that of Unit 3. Because Unit 4's weld material is more embrittled, Petitioners contend that the FPLIntegrated Surveillance program does not meet the Requirements of 10 CFR Appendix G Parts V.A and V.B and 10 CFR Appendix H, )

including Appendix 11 Parts IIC and IIIB. Finally, Petitioners contend that the surveillant I capsule V for Unit 4 should be tested to establish the new pressureAcmperature limits and should the testing indicate that the RTNDT for Unit 4 has passed the 300-degree brenheit isic] screening criterion set by the NRC, Unit 4 should be shut down until it is demonstrated i that the Unit 4 reactor pressure vessel can maintain its inte,grity beyond this limit. I Petition at 7-8.

As bases for this contention, Petitioners make two 7.rguments. First, Petition-ers argue that, after 7 years of operation, RT, was to be calculated based upon _

the data obtained from the capsule material to be removed from each reactor.

Petitioners cite a Southwest Research Institute report issued in 1979 for that proposition. However, Petitioners charge, FPL did not use data from Unit 4, but rather data from "the less severely affected reactor Unit 3 for predicting the RT, and revising the heat-up and cooldown limits." Petition at 9. Petitioners buttress their argument by citing the conclusions of Dr. George Sih, Director of j Fracture Mechanics at Lehigh University, in another lawsuit. Dr. Sih took the l

position that one is not justified to assume that data collected in Unit No. 3 could be applied to predict the behavior of Unit No. 4. llence. conclusions drawn on RTNDT for Unit No. 4 based on the data of Unit Na 3 cannot be considered valid. )

.)

Id. Dr. Sih further concluded that "according to FPL's own test data, Unit 4

]

has already passed the 300-degree NRC screening criterion." Id. j Licensee objects to admission of the contention on two grounds. First, j Licensee argues that the contention is founded upon an impermissible attack j on a rule, namely the Commission's Integrated Surveillance Program set out in l i

10 C.F.R. Part 50, Appendix H, which was approved for use at the *ntrkey Point units in 1985.Section II.C of-Appendix H authorizes integrated surveillance.

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i i.e., the use of sample data from a set of reactors with similar design and operating features, as follows:

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C. An integrated surveillance program may be considered for a set of reactors that have l j

similar design and operating features. He representative materials chosen for surveillance from each reactor in the set may be irradiated in one or more of the reactors, but there must be an adequate dosimetry program for endi reactor. No reduction in the requirements for number of materials to be irradiated, specimen types, or number of specimens per reactor is permined, tmt the amount of testing may be reduced if the initial results agree with predictions. Integrated surveillance programs must be arproved by the Director, Office of Nuclear Reactor Regulation, on a case-by-case basis. Criteria for approval include the L following considerations:

1. He design and operating features of the reactors in the set must be sufficiently similar to permit accurate cor,parisons of the predicted amount of radiation damage as a function of total power output.

2. Dere must be adequate arrangement for data sharing between plants.

3. Bere must be a contingency plan to assure that the surveillance program for each reactor will not be jeopardized by operation at reduced power level or by an extended cutage of another reactor frorn which data are expected.

4. Here must be substantial advantages to be gained, such as reduced power outages or reduced personnel exposure to radiation, as a direct resuh of not requiring surveillance capsules in au reactors in the set.

Licensee points to the well-established prohibition in 10 C.F.R. 6 2.758 (1988) and supporting case law.

Licensee's second objection assumes Petitioners are not attacking the inte-grated surveillance rule but rather its implementation at hrkey Point. Licensee argues that that challenge, too, is barred. The use of an integrated surveillance ,

program at Wrkey Point was authorized by license amendments issued in 1985 after notice and opportunity to request a hearing were published in the Federal Register. No hearing was requested at the time. Licensee notes that Petition-ers have actively followed 'Ibrkey Point and that the amendment was served on ,

Petitioner Lorion. 'I1r. 39-40. Accordingly, Licensee argues that Petitioners are .

barred from attacking the 1985 license amendments in this proceeding. Licensee ,

Response at 9-10. Licensee also notes that Dr Sih's conclusions concerning i integrated surveillance were previously rejected in a 1986 letter from NRC Ex-ecutive Director of Operations Victor Stello to Senator Lawton Chiles. Id. at 8.

Staff concurs in Licensee's first objection tr) admission of the contention and adds two additional grounds for denying admissibility. First, Staff argues that the contention as it pertains to the integrated surveillance test program is beyond i the jurisdiction of the Board because it was not encompassed in the scope of I the Notice of Hearing for these licensing actions. 50 Fed. Reg. 40,981-82, 40,988 (1988). Second, Staff argues that to the extent the integrated surveillance program does not comply with certain sections of Appendices G and H, the 502 I

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i contention must be rejected because it was the subject of the 1985 amendment which petitioners cannot challenge now. Tr. 55-57.

It is clear that Commission regulations and case law do not permit an attack upon the Commission's rules in a case such as this. Petitioners recognized that at oral argument by taking the alternative position they were attacking the implementation of the rule and the use of this specific capsule at issac.

Tr. 64. Were Contention 2 simply an attack upon the integrated surveillance test program itself or as specifically applied to the Wrkey Point units by the 1985 license amendments, the contention would have to be rejected.10 C.F.R. $ 2.758 j l

(1988).

liowever, a third alternative exists, namely, that Licensee's conduct of the integrated surveillance test program at Wrkey Point fails to meet the require-ments of the program itself. One of those requirements is for a contingency plan to assure that the surveillance program for each reactor will not be jeopardized . . by an extended outage of another reactor from which data are expected.  ;

10 C.F.R. Part 50 Appendix H,6 II.C3 (1988). Were there some indication that 1 data derived from the materials in the Unit 3 capsule are significantly different from the data that could be derived from the Unit 4 capsule, we might well be required to inquire further. Petitioners' contention concerning the validity of the Capsule V data from Unit 3 is based on the assertion that the Unit 3 Capsule material has been irradiated for a significantly shorter period of time than capsule materialin Unit 4. However, the Safety Evaluation establishes that j materials in both units have been irradiated for essentially the same period of time. The report, quoicd by Licensee's Counsel (Tr. 71), notes on page 1 that  ;

[ilt is estimated that TP 3 will reach 10 EFPY carly in 1989. and TP4 will reach to EFPY in mid.1989.

We cannot say on this state of the record that this difference of less than 5%

in the operating time between the two units is simply not significant and cannot form a basis for the contention. However, it appears clear to us that Petitioners have a heavy burden of proof. Accordingly, Contention 2 is admitted.

Finally, Petitioners argue that Capsule V in Unit 4 should be tested and if the results show that the screening temperature ("RT,,rs") ~ o f 300 F, set forth in 10 C.F.R. 6 50.61(b)(2), cannot be met, Unit 4 should be shut down until certain conditions are met. A Pressurized Thermal Shock (FTS) event is defined as "an event or transient . . . causing severe overcooling (thermal shock) concurrent with or followed by significant pressure in the reactor vessel."

10 C.F.R. 5 50.61(a)(2) (1988). We 300-degree screening criterion, i.e., the 503 i

Reference Temperature for Pressurized Thermal Shock ("RTm"), applies to protection against pressurized thermal shock, and is calculated according to one of the two equations provided in 10 C.F.R. 6 50.61, whichever provides the lowcr RTm for the particular material. He equations contain a term, "M," which "means the margin to be added to cover uncertainties in the values of initial RT, copper and nickel content, fluence and the calculational procedures."

6 50.61(b)(2).

We find that this issue cannot be considered in this hearing. De jurisdiction of the Board is founded upon the October 19, 1988 Federal Register Notice of Opportunity to Request Hearing. 53 Fed. Reg. 40,981,40,988 (1988). A careful reading of the notice reveals that the subject of the hearing includes only a modification of pressure and temperature (P/T) limits during normal operation, governed by 10 C.F.R. 0 50.60, and does not include a determination of fracture toughness requirements for pressurized thermal shock which is an j accident condition governed ty 10 C.F.R. 6 50.61. This part of Petitioners'  !

contention is therefore beyond the scope of this hearing and cannot be admitted. j C. Contention 3 Contention 3 is based on the same allegation of nonconservative P/T limits ,

as they affect weld material at the beltline of the reactor vessel. Contention 3 )

states

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• Ihat the revised pressureAemperature limits that have been set for Units 3 and 4 are nonconservative and will not meet the requirements of General Design Criterion 31 d j Appendix A to 10 CFR Part 50 which requires that the reactor coolant pressure boundary be I designed with sufficient margin to ensure that, when stressed under operating, maintenance, j testing, and postulated accident conditions,(1) thr. boundary behaves in a non-briule inanner j and (2) the probability of a rapidly propagating fracture is minimized. Petitioners contend that the sufficient safety margin required by GDC 31 does not exist because the P/r limits for units 3 and 4 were not based on the most limiting value of RTNDT as required by 10 CFR Part 50 Appendix G and H, for reactor vessel welds because the percentage d copper that was used in the RTNDT calculation is non-conservative in that it is lower than the percmtage of copper that was used in previous surveillance test reports and lower than the percentage of copper quoted in many d the earlier !?L documents. Petitioners contmd that tha use of this non-conservative estimate of copper content means that the adjusted RTNDT is unrealistically low and that the current revised P/r limits are not restrictive enough to insure that an adequate margin of safety against brittle fracture of the reactor vessel exists.

'Ihis increases the possibility that the reactor vesses isic] for Unit 4 will behave in a brittle manner resuhing in a fracture of the vessel and subsequent meltdown of the reactor core.

Petitioners further contend that if a more conservative and accurate estimate of copper content was used to calculate the R'Ih*DT, the P/rlimits would be more restrictive and that in fact, there is a possibility that it could be d4aovered that the NRC Screening criterion of 300-degree [ sic] Farenheit Isic] has been reached and the Turkey Point Units 3 and 4 would 504

1 have to be shut down because they do not treet the fraaure toughness requirement of 10 CFR Part 50 Appendix G.

Petition at 10-11.

Petitioners assert that, because the Licensee's calculations of RT, assumed a copper content (0.26%) which is too low for the weld metal in the beltline materials, the resulting P/r limits at issue will not provide an adequate margin of safety against brittle fracture of the reactor vessel, as required by GDC 31 of Appendix A,10 C.F.R. Part 50. Petition at 10.

Petitioners assert further that there is a possibility that it could be discovered that the NRC screening criterion of 300-degree Fahrenheit2 has been reached and the Turkey Point Uriits 3 and 4 would have to be shut down because they do not meet the fracture toughness requirement of 10 CF.R. Part 50 Appendix G.

Amende Petition at 11.

As bases, Petitioners assert that many earlier documents on 7brkey Point assumed a copper content of 0.30% or above, and that a lowering of the copper  ;

content a few hundredths of a percent can lower the RT, by 10 to 15' degrees per hundredth of copper content. 'It 75-76. Petitioners also assert timt the Charpy Notch capsule V weld metal specimens which were remived from Unit 3 indicate that the measured Charpy upper-shelf energy for the limiting behlme weld material already does not meet the fracture toughness requirements of 10 CF.R. Appendix G,Section V.C Petition at 11-12.

Licensee objects to the admission of Contention 3 in its entirety on the grounds that it does not meet requirements for admissibility. First, Licensec i argues that the value of 0.26% for copper content of the weld material was approved in a Safety Evaluation issued by the NRC Staff on April 26,1984, and that a contention in a license amendment pmceeding may not challenge previous decisions made by the NRC, citing Sf. Lucie, LBP-88-10A, supra,27 NRC at 466 In a footnote, Licensee recognizes that the cases leading to that decision dealt with issues that were subject to review as part of a license proceeding, but argues that the reasoning in the cases applies equally whether the issues were previously subject to a license proceeding, or subject to NRC review outside of a license hearing. Licensee urges that a review under the pmvisions of 10 C.F.R. 6 2.206 would appear to be the appropriate method of reexamining the continuing vaindity of either type of earlier NRC action. Licensee Response at 11-12. We do not find that " bootstrap" logic persuasive.

2 Ser ducussion at rp. 5034W syra.

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Second, Licensee objects to this contention insofar as it may address issues relating to whether or not the hrkey Point units satisfy the 300 F pressur-ized thermal shock (PTS) screening criterion in 10 C.F.R. 650.61: Licensee .

argues that such a determination would be beyond the Board's jurisdictioribe-cause it is outside the scope of the notice of hearing for this proceeding. 53 Fed. Reg. 40,981, 40,988 (1988). Because NRC has already determined that Turkey Point Units 3 and 4 satisfy the screening criterion in the March 11,1987 Safety Evaluation, nothing in the P6 limits amendments before this Board con-cerns Wrkey Point's compliance with the 300 F screening criterion. Licensee Response at 12-13. Similarly, Licensee argues that Petitioners

• challenge to the Charpy upper-shelf energy for the reactor specimens has no relevance to the present P6 amendments at issue, and that Petitioners have shown no nexus.

'IY. 79.

Staff also objects to those portions of Petitioners' contentions addressing the 300 F PTS screening criterion, and whether the upper-shelf energy of specimens meets the requirements of 10 C.FR. Part 50, Appendix G, on the grounds that they are outside the scope of this license amendment. We agree.

Staff, however, does not object to admission of the issue of whether the correct penentage of copper was used in predicting the RT, of the materials from which the revised P61imits were derived. Staff Response at 10-12. Staff's position in this regard is based on the fact that its previous Safety Evaluation that approved the copper content of the weld materials was not a noticed proceeding and not part of a licensing action. Hence, Staff concludes, the issue is not barred from this PR limits proceeding. Tr. 83.

We agree with the Staff that the issue of whether the correct copper content was used in predicting the RT, of the weld materials may not be excluded as an issue in this proceeding. The 1984 Staff approval was not subject to n'otice of opportunity for hearing. No party was available or could have challenged a change handled essentially as an administrative matter and thus Petitioners are not estopped from raising the issue in this license amendment proceeding. See Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2),

LBP-85-11, 21 NRC 609, 621-24 (1985), rev'd and rcmanded en other grounds, CLI-86-8,23 NRC 241 (1986).

Because a finding under 10 C.F.R. 62.206 is not subject to review as a matter of right, that approach cannot be argued to be acceptable as an alternative to hearing an otherwise admissible contention. Therefore, we admit Contention 3, as limited to whether the correct percentage of copper content was used in predicting the RT, of the critical beltline materials for setting PR limits.

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Order Ibr all the foregoing reasons and based on the entire record in this matter, it J is, this 8th day of June 1989, ORDERED

1. That Petitioners' Contention 1 is not admissible for litigation in this proceeding; j

2. That Petitioners

• Contendons 2 and 3 are admitted but limited to the )

issues detailed in the foregoing opinion; and j

3. That 'he parties shall complete and file motions for summary disposition, {

if any, and written testimony in accordance with the parties' agreed-upon schedule set out in the March 13, 1989 letter from counsel for Licensee so that hearing will commence on December 12,1989, at a place and time to be established.

THE ATOMIC SAFETY AND LICENSING BOARD Glenn O. Bright ADMINISTRATIVE JUDGE Jerry Harbour ADMINISTRATIVE JUDGE B. Paul Cotter, Jr., Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland June 8,1989 ,

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Cite as 29 NRC 508 (1989) LB P-89-1S -

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

John H Frye, til, Chairman Dr. James H. Carpenter Dr. Jerry R. Kline in the Matter of Docket No. 40-2061-ML (ASLBP No. 83-495-01-ML)

KERR-McGEE CHEMICAL CORPORATION (West Chicago Rare Earths Facility) June 22,1989 Following issuance of the final supplement to the Final Environmental Impact Statement (SFES) pertaining to disposal of certain thorium mill tailings stored at the West Chicago site, the Staff moved to hold this proceeding in abeyance pending Commission action on Illinois' request to assume responsibility for the talings, and Illinois, while concurring in Staff's motion, sought to file new contentions based on the SFES. The Board held that basic fairness requires a prompt conclusion to this proceeding and denied Staff's motion. Tim Board also admitted certain ofIllinois' contentions.

RULES OF PRACTICE: STANDARD GOVERNING LATE CONTENTIONS Contentions filed after the deadline originally established must satisfy all five factors set cut in 10 C.F.'R. 5 2.714(a)(1)(i-v). Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983).

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RULES OF PRACTICE: PROMirr RESOLUTION OF PROCEEDING Applicants and interveners are entitled to a prompt resolution of t'se issues pending in NRC proceedings. While Staff's concerns that future events may moot the proce: ding with the consequence that resources may have been wasted are entitled to deference, they do not omweigh an applicant's interest in a decision on its application, particularly where Staff's resources are already largely invested.

1 MEMORANDUM AND ORDER (Ruling on Contentions and Staff's Motion to lloid Proceeding in Abeyance) l

'niis proceeding began in June 1983, when Staff published a notice in the l

Federal Register affording an opportunity to interested persons to request a hearing on Kerr-McGee's application to permanently dispose of certain thorium mill tailings at the site of its West Chicago Rare Earths Pacility.8 Staff had earlier issued draft and final environmental impact statements approving onsite storage for an indeterminate period and deferring a final decision on permanent disposal until completion of a monitoring period of at least 5 years. The People of the State of Illinoi3 and the Illinois Department of Nuclear Safety (collectively referred to as Illinois) filed a petition to intervene and a request for a hearing which was granted. Although it did not request a hearing, Kerr-McGee fred three contentions. One of these challenged Staff's refusal to approve permanent onsite disposal, and the others raised technical points concerning the FES. These contentions were admitted over Staff's objection. LBP-84-42,20 NRC 1296, 1300-07 (1984).'

In LBP-84-42,20 NRC at 1307-17, reconsideration denied, LBP-85-3, 21 NRC 244 (1985), e.ciing at the request of Illinois, we held that Staff must prepare and circulate for comment a supplcment to its FES. The supplement ,

was required because Staff had not considered permanent disposal of the mill tailings on that site, an alternative strongly opposed by Illinois, although the FES made it clear that onsite disposal was the most likely course of action?

Staff circulated a draft supplement for comment in June 1987, and published the final supplement (SFES) in April 1989. The SFES concludes that permanent onsite disposal should be authorizrA On April 24, we held a status conference to determine the future course of this proceeding.

I This facihty was at that tirne beang decamnnasioned pumuant to authorig granted by the stafr. j 2

Kerr-Meoen and Illinois agrea; that the issue of permanent disposal should not be defermd. LEP44-42,20 j NRC at 1300.

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At that conference, Staff counsel informed u:1 that on April 11, Illinois formally requested that its agreement with the Commission be amended to dele-gate jurisdiction over the tailings in question to it. Staff counsel indicated that it would require a minimum of 6 months to review this application and srggested that, in order to conserve resources, we should hold the proceeding in abeyance L up.til it is known whether the Commission will delegate regulatory jurisdiction l over the tailings to Illinois. Illinois' counsel concurred in this recommendation, while Counsel for Kerr-McGee strongly opposed it. Kerr-McGee suggested that the proceeding move forward on a schedule that contemplated a hearing com-mencing on September 5.

At the confererx:e and in a May I unpublished Memorandum and Order establishing a schedule, we indicated that before ruling on Staff's motion to hold the proceeding in aceyance, we wished to know whether the existing contentions remained at issue and whether the final supplement to the FES had prompted any new contentions. The existing contentions are Kerr-McGre's KM 1,2, and 3, and Illinois' AG 2(a),2(b),2(d),2(c),2(h),2(j) through 2(s),2(u), and 2(w).

Rulings on AG 2(f) and 2(g) were withheld. Contention AG 1 was dismissed as a sanction for failure to comply with discovery obligations. LBP-86-4,23 NRC 75,86-87 (1986).

Subsequently, Kerr-McGee advised that none of its contentions remained at issue and that it did not seek to advance any new contentions. Illinois advised that all of the adrr itted portion8of contention AG 2, except subparts (j) and (n),'

remained at issue and stated seven new contentions. We pointed out in the cited Memorandum and Order dismissing AG 1 and in our May 1 Memorandum and Order that, if Illinois wished to advance any new contentions, it must address the factors set out in 10 C.F.R. 5 2.714(a)(1)(i-v). Dde Powr Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983). It should also address our concerns expressed in LBP-86-4 regarding the implications of its noncompliance with discovery orders for the balancing of those factors.

3 1n t.BP-84-42. == held Contention 2(f) which concems the possibility d adding wasies fran Reed Keppler Padt and Kass Cnek to the disposal cell,in abeyance peld'ng a decismn to include these westes in the deposal cell See 20 NRC at 1318 n.52. In view of the Commission's holding in Srsar o/lilanois (section 274 Agreeman),

ClJ-864.28 NRC 75 (1988), that these wastes are within thejunsdiction of Blinois tander its existing agnement, we assume that no such decisiet will be madt la the same decision. we held Contention 2(g) in abeyance pending a decision in the couns of Illinois that Ken'McGee is bound by the Ilhnois smundwater standards which are the subject of this contention. See 20 NRC st 1325 tL84. We have not been informed of such a decision and canunue to hold Gus cauention in abeyance.

'Elinois' May 30 mouan to withdow these subparm was granted on June 8.1989.

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ILLINOIS' NEW CONTENTIONS lilinois'seven new contentions are summarized in the margin.5 In support of its motion, Illinois maintains that the new contentions meet the test for good cause for late filing set out in 62.714(a)(1)(i) as interpreted by Catawba in that they are wholly dependent on the availability of the SFES, could not have been advanced prior to the availability of the SFES, and were timely submitted after the SFES became available. Illinois maintains that the other factors set out in 9 2.714(a)(1) are also satisfied in that there are no other means by which Illinois can air the issues raised in these contentions, these contentions must be admitted to ensure the development of a sound record, no other party is in a position to raise these issues, and, because most of the issues raised may be decided on briefs without a hearing, admission of these contentions will not unduly broaden the hearing or delay the proceeding. In short, Illinois believes that a balancing of these factors weighs in favor of admission of the contentions.

Kerr-McGee opposes admission of these contentions. First, Kerr-McGee contends that Illinois has not established good cause for the late filing of these contentions, pointing out that they are based on Kerr-McGee documents and the criteria of Part 40, Appendix A, which have been available for years.

Kerr-McGee also points out that Illinois has failed to satisfy the third fxtor, concerning the extent to which Illinois will contribute to the development of a sound record, in that it did not identify its prospective witnesses or summarize their testimony. Kerr-McGee asserts that the admission of the contentions 8

Propused Contenuan 3 asserts that the sIIs fails to comply wnh hTPA and appbcable agulaucus m that:

a. The assumption that 0.1% of unpulaged wastes would be lost for every 100 miles transponed is astmrary and capncious.

b. Ahernate sites wem not propedy achx.md.

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c. The long-term cost of not stunwsg the West Chicago site to nuncstncted use was not adequately considered,

d. The Universal saa less Equaum is obsolete and conclusions be4ad on h lad foundadon; e Costs and benefits to parnes other than Kerr-McGee were not considered,

f. It does not adequately consider comments of Ilhnas; and

g. It does not employ a standard evahtana basis for ahernative sincs.

Proposed Cornen6an 4 assens that the proposed action does not meet Csitena 1 through 4,6,7A. and 12 of 10 CIA Pan 40 Appendas A.

Proposed Contenuon 5 assena that "it]he enunciated legal siandard for approval d the pmposed acnon is improper."

Pmposed Contenuon 6 assens ahernate side D is obviously suprior to the West chicago site, Pmposed Contention 7 assens that NRC may not approve a proposed action that fails to meet the entens of 30 CJA Pan 40 nmply because h is beuer than the ahernanves to which it was compared.

Proposed Contennon 8 assens that the slls is deficient in that it does not adequately consider the management organizanon and controls that KerrMcGee would use to execute the pmposed program er the cuahty assurance standard, program and practims, and procedures used in the execution of the proposed program and the colleaion and analysis of data in the sIIs.

Proposed Coin.Aion 9 assens that the saff hu not comphed with UlP-85-3,21 NRC 244,261 (see115 and 8).

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i will necessitate an expanded proceeding in that considerable discovery will be j necessary to understand the issues raised by the contentions and, despite Illinois' 1 contrary position, evidentiary hearings will be required to resolve them. I Second, Kerr-McGee attacks the contentions as lacking sufficient basis and specificity to advise the Board and the parties of what it is Illinois wishes to I litigate. It maintains that Illinois has not provided even rudimentary notice of the substance of its claims. ,

1 Finally, Kerr-McGee asserts that Proposed Contentions 3(b), 3(e), 3(g), 6, 1 7, and 9 are thinly veiled attempts to reintroduce portions of Contention AG 1 which were dismissed as a discovery sanction.

Staff would accept Contentions 3(a),3(d),3(c),4(b),4(c),4(d),4(c),4(f),

and 9. Additionally, Staff believes that Contentions 4(a) and 7 raise relevant legal issues which should be decided, but which do not necessitate evidentiary i proceedings. Staff opposes the admission of Contentions 3(b),3(c),3(f),3(g),

4(g), and 5 on the ground that they a'l lack sufficient basis and specificity. On applying the five factors of 62.714(a) to those contentions which have, in its view, sufficient basis and specificity, Staff cont'trJes that factors (ii) and (iv) weigh favorably to Illinois while factors (iii) and (v) do not. Staff therefore takes the position that the decision whether to admit the contentions turns on the first factor, good cause. It finds that only Contention 8 should be denied as failing to satisfy this factor. In Staff's view, Contention 8 is based on Kerr-McGee's stabilization plan, not the SFES.* ,

We afforded Illinois an opportunity to reply to Kerr-McGee's and Staff's responses to its contentions. On June 16 Illinois filed such a reply and sought i permission to amend those contentions. Specifically, Illinois seeks to amend Contentions 3(a),3(b),3(c),3(f),3(g),4(g), and 5 to make them more specific.7 It offers no reason why the necessary specificity was not furnished in the first instance. We deal with the parties' basis-and-specificity arguments first.

If we are to consider these amendments, we must first obtain the views of Staff and Kerr-McGee as to whether the amendments satisfy their objections that the contentions are overly vague. The specificity furnished by the amendments should have been furnished an the first instance, and we are not willing to further delay this long-delayed proceeding in order to consider them now. However, the amended contentions appear to raise matters that may have some importance )

for this proceeding.

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'stafr has not specifically treated Catenum 6 in its response. We assurne that staff would fmd that it, hke Contention 5, lacks surficient basis to advise of the issues intended so be raised.

7 11hnms also corrected typographical erna in Contendon 8 and withdrew Contentian 3(d). See Rely at 7.

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Therefore we are requesting Staff's and Kerr-McGee's views on the amend.

ments.: If, after having considered those views, we rule that any of the amended contentions are admissible, those contentions will be incorporated into the sched-ule that we are establishing for the other newly admitted contentions in this Memorandum and Order. In other words, the schedule for resolving those amended contentions will fun from the date of this Memorandum and Order, not from the date of their admission.  !

Because Illinois' newly filed contentions all address the SFES, Staff's opinion  !

as to whether they are specific enougli to satisfy $2.714(b) is entitled to considerable weight. After all, the burden of fesponding to these contentions l will fall on Staff. 'Iherefore we are reluctant to exclude a contention that Staff finds unobjectionable. Ibr this reason, we overrule Kerr-McGee's objection to I

unamended Contention 3(c) and defer to Staff's judgment that it adequately advises of the issues it raises. Staff did not address Contention 6, and Kerr-McGee objects to it. Despite the wealth of information provided in the SFES, this contention provides no reasons for its assertion that alternative site D is cbviaasiy superior to the West Chicago site. Thus, we are unwilling to infer that Staff had no objection to it as Illinois would have us do. It is denied.

Staff finds that Contentions 4(b-f) meet the basis-and-specificity requirement.

Staff would not admit Contentions 4(a) and 7, but views them as raising relevant legal issues and would set them down for briefing. We agree with Staff's assessment with regard to basis. However, we do not separately treat Contentions 4(a) and 7 because, as indicated later, we suspect that other contentions may also raise purely legal issues.

Thus we find that Contentions 3(a), 3(e),4(a-f),7, and 9' are sufficiently specific to be admissible and proceed to a consideration of the 92.714(a) factors. Pending a ruling following Staff's and Kerr-McGee's comments, we also consider amended Contentions 3(b), 3(c), 3(g), 4(g), and 5 in this group. Contention 3(f) is denied because it does not raise a litigable issue, and Contention 6 because it is not sufficiently specific.

8 surr and Keneca -.4 not respano to em ame .dmenu in Contenums 3(a) and 3(fx >

Kerr-Mcoes objects that unemended Contenuon 3(a) provides no explanet.on of the www that the assumption {

cemrmng the dispemal of parnculates and gases dunng transportanon is arbitrary and capncious or of any j ahemsuve appmsch favored by the state. Kerr-Meoce is mistaken to the catent that h fmds that the Comm' a sion's i regulations impose an obligsuon on an iracrvenar so put inrward alternatives in challenging staff or applicara "j conclusions. Ilowever,its argwaent that Contenuan 3(s) provides no bass for its assertons is not without merit while the subject of the contention as specific. no season to inquite into it is provided.

However. staff is apparently aware of the sessans far minois' asserdes, far A has siat objected to litigating stus comention. in view of the fact that the burden with respect to abs comenuon falls on staff. rather that Kerr-Meoee, we defer to staff's view.

We have reviewed ammded Coruenuon 3(f). we fmd that staff has addressed sadi of Dhnois' commems. .

Nothing would be gained by litigating Ulinois* unhappmens with staff's vapanses in ha comments. nhanis'  !

daagruements with staff's conclusions are the subject of other contenuons.  !

'The specificity of aus mmanuon was ma addressed by staff. Clearly, h meets this seguirement 513 l l

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h With the exception of Contention 8, Staff believes that Illinois' new con-tentions could not reasonably have been raised earlier in the proceeding and that they do not mimic Contention I which was dismissed as a discovery sanction.

Kerr-McGee, on the other hand, questions whether the SFES can justify the fil-ing of new contentions, arguing that its purpose was to remove contentions from i

dispute, not add them. We agree with Kerr-McGee that the SFES was ordered I in response to specific contentions and had the effect of removing them from the l proceeding. That does not mean that Illinois is precluded from challenging the SFES, no matter what it might say. Similarly, we agree with Illinois' position stated in its reply that it makes no sense to have required it to file contentions based on the draft SFES, as Kerr-McGee argues. That document is a draft, and the filing of contentions based on it would only introduce an unnecessary procedural step. The contentions would have to be revisited once the final is-l sued. And we agree with Illinois that it is not possible to have challenged the l Stag's assessment of certain long-available Kerr-McGee documents prior to the l issuance of the SFES. Finally, we find Kerr-McGee's argument that Illinois has i simply restated portions of Contention AG 1 to be unconvincing. Thus, with l the exception of Contention 8, we find that Illinois has satisfied the good cause requirement of f 2.714(a).

Illinois amended Contention 8 to correct typographical errors and make it more clear, Contention 8 concerns management organization, quality assurance practices, and other controls. It is not focussed on the SFES and therefore could have been advanced catlict. In its reply, Illinois has not addressed the substance of Contention 8. Consequently its position to the contrary is not persuasive. We agree with Staff and Kerr-McGee that Illinois has not shown good cause for its late filing.

Staff believes that Illinois has no other means for challenging the SFES which is equivalent to admitting these contentions. Kerr-McGee has not addressed this factor. We agree with Staff that this factor weighs in Illinois' favor.

Staff notes that Illinois' arguments in support of its contentions fail to demonstrate that its participation would contribute to the development of a sound record, particularly in light of the fact that Illinois' past noncompliance with Board orders required the imposition of sanctions. Kerr-McGee agrees, pointing out that Illinois has not complied with the admonition that it should identify its witnesses and summarize their testimony contained in Commonweahh Edison Co. (Braidwood Nuclear Power Station), CLI-86-8,23 NRC 241,246 (1986).

Both weigh this factor against admission of the contentions. In reply, Illinois argues that without admission of the contentions, the SFES will escape close scrutiny, that its agencies possess specialized knowledge with regard to this subject, and that its interest in acquiring jurisdiction over the West Chicago site will ensure its effective participation.

SI4 e

m______.__________ _ . _ _ _ _ _ . _

While Illinois has stopped short of promising to pay closer attention to its obligations as a party in the future, we are inclined to agree with it that the three factors it cites tend to argue in favor of the conclusion that its participation will contribute to the development of the record. Moreover, the procedures that we are adopting for resolution of these contentions will tend to make it more difficult for Illinois to ignore its obligations. We conclude that this factor weighs slightly in Illinois' favor.

Staff points out that there is no other party to this proceeding who might represent Illinois' imeruts. Kerr-McGee has not addressed this factor. This factor weighs in Illinois' favor.

Both Staff and Kerr-McGee argue that admission of the contentior.s will broaden and delay the proceeding, noting that without them, the scope of the proceeding will be much narrower. Kerr-McGee argues that resolution of the contentions will require considerable effort on the part of the parties and that Illinois, after having delayed the proceeding by demanding the SFES, should not be permitted to further delay it. In reply, Illinois argues that the contentions will not unduly broaden or substantially delay the proceeding. It believes that the added effort to resolve them is reasonable. Save for Contention 8, we agree. The matters raised by Contention 8 do not appear to be of such imponance as to justify the conclusion that their admission will not unduly broaden the proceeding. The other contentions appear to raise issues that have some substance and should be resolved. With the exception of Contention 8, we weigh this factor in Illinois' favor.

In summary, we find that the factors set forth in 6 2.714(a) weigh in favor of admission of all the contentions save Contention 8. With regard to that contention, we find that the favorable weights of factors (ii) through (iv) do not outweigh the factors (i) and (v). We admit Contentions 3(a),3(e). 4(a-f),7, and

9. Contentions 3(f),6, and 8 are denied. A ruling on Contentions 3(b),3(c),

3(g), and 4(g) will be rendered promptly on receipt of Staff's and Kerr-McGee's views as to whether Illinois has satisfied their objections with regard to basis and speci5 city.

Illinois has indicated that, for the most part, the issues raised in its contentions may be decided on briefs. However, it has not indicated which specific contentions may be decided in this manner. Staff has identified only Contentions 4(a) and 7 and Kerr-McGee has not identified any contentions as falling into this category. We suspect that perhaps all of the admitted contentions may be decided on briefs, but we are unable to make such a determination based on the submissions now before us. Consequently, rather than permit these admitted contentions to become the subject of discovery as is customarily the practice, we direct Illinois to move for summary disposition of them under 5 2.749. If Illinois believes that it is not possible, for whatever reason, for it to so move, it is to indicate why in detail, paying particular attention to any claimed need for 515 i

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1 discovery. In their responses, Staff and Kw-McGee must similarly justify any need for discovery in order to adequately answer the motion. See 6 2.749(c).

With the motion and answers in hand, we will either resolve these contentions on the merits or crder further proceedings with respect to some or all of them.

STAFF'S MOTION TO HOLD PROCEEDING IN ABEYANCE In support of its motion, Staff notes that it regards Illinois' request to amend its agreement with NRC to include ',he tailings here in question as raising a jurisdictional issue. In Staff's view, if the agreement is so amended, the Commission will lose jurisdiction over these tailings. Staff estimates that it will require 6 to 12 months to complete Commission action on the request and believes that it is unlikely that there could be a final Commission decision in this proceeding within that time period. In these circumstances, Staff does not wish to expend further resources on this proceeding. 'IY. 422-23,432. Illinois, citing its limited resources, concurs in Staff's view. 'IY. 423-24.

Kerr-McGee opposes Staff's motion. It points out that the 6- to 12-month time estimate to review Illinois' request may well be optimistic, that Illinois' request raises serious legal and policy issues, and that it may never be approved.

Kerr-McGee s.2ggests that this Board should proceed with all deliberate speed and proposed the following schedule:

May 15,1989 Identify witnesses and commence depositions July 10,1989 End depositions August 7,1989 File testimony September 5,1989 Commence hearmg Speaking prior to Illinois' motion to add contentions, Kerr-McGee's counse1 noted that the essence of the remaining controversy is between Illinois and Kerr-McGee. *IY,424-29,440-44. Staff counsel agreed with this last assertion.

'IY. 446.

In July 1977, Staff required Kerr-McGee to submit a plan to decommission the West Chicago site and dispose of the contaminated material. After rejecting Kerr-McGee's first submission, Staff began review of Kerr-McGee's application dated August 15, 1979.88 'Ihus this matter has been pending for almost 12 years, and review of Kerr-McGee's application has been under way for almost 10 years, the last 4 % of which have been consumed in producing the SFES.

That document completes Staff's review and constitutes Staff's approval of tog,, gg,gysFinal EnJ. -4 Impact statement, NURIG0904. May 1983. et al.

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1 Kerr McGee's application. Yet despite the expenditure of substantial resources over more than 10 years, Staff now proposes to halt the process while it decides whether to turn the whole matter over to Illinois. I In these circumstances, Kerr-McGee's frustration at the inability of the Commission to make a decision in a reasonable period of time is understandable.

k In these circumstances, its vehement opposition to Staff's effort to halt the proceeding is well taken. Kerr-McGee is entitled to a ruling on its application.

We are not unsympathetic to Staff's resource concerns. Clearly, Staff has many pressing tasks and must decide which will receive priority. Were this proceeding in its initial stages, Staff's resource concerns might well carry the day. But here Staff's resources have already been invested. In comparison to the Staff resources already invested, the new contentions that we are admitting  !

should constitute an insignificant impact on Staff resources, particularly in light of the procedures that we have adopted for their resolution. j Illinois successfully sought the ruling directing that the SFES be prepared.

It too has invested substantial resources in the 6 years that this litigation has been pending. While in light of the Staff's conclusions in the SFES, Illinois may prefer to hold this proceeding in abeyance, it initiated this litigation and cannot complain if it is brought to a conclusion.n Indeed, as a party it is equally entitled to a resolution.

In short, the mere possibility that jurisdiction over the subject matter of the proceeding might be transferred provides no justification to hold it in abeyance.

Basic fairness requires that it be resolved expeditiously. Accordingly, we are adopting a schedule toward that end.

ORDER In consideration of the foregoing, it is hereby ORDERED:

1. Illinois Contentions 3(a),3(e),4(a-f),7, and 9 are admitted. In accord with the schedule set out below, Illinois is to move for summary disposition of these contentions or indicate in detail why it cannot do so.

2. Staff's motion to hold this proceeding in abeyance is denied.

3. The following schedule is adopted:

June 30 Staff and Kerr-McGee respond to Illinois' amended Contentions 3(b),

3(c),3(g), and 4(g).

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IIWe do not understand nhnois to be neckmg to hold this peceeding in abeyance itself. but only to have agreed with siatr's pmposal to do so.

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July 13 All parties ~ exchange lists of affirmative witnesses and begin depositions on Contention 2.

July 20 Illinois files motion for summary disposition of Contentions 3(a),

3(d),3(c),4(a-f),7, and 9.

Responses are to be filed in accord with 6 2.749(a).

September 7 End depositions.

September 28 All parties file written affirmative testimony.

October 5 Prehearing conference (if necessary).

October 17 Commence hearing.

4. Unless otherwise ordered, no discovery (other than that set forth in the above schedule)is authorized.

5. Service shall be by express mail or equivaient.

THE ATOMIC SAFETY AND LICENSING BOARD 12 Dr. Jerry R. Kline ADMINISTRATIVE JUDGE John H Frye, III, Chairman ADMINISTRATIVE JUDGE Bethesda. Maryland June 22,1989 12 Judge Carpenter was unavailable to aview and sign uns Memarandurn and order. lie coneum in the suuh.

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Cite as 29 NRC 519 (1989) LBF-89-17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chair Dr. Emmoth A. Luebke Dr. Jerry Harbour in the Matter of Docket Nos. 50-443-OL-1R2 50-444-OL-1 R2 (ASLBP No. 88-858-01-OL)

(Cnsite Emergency Planning and Safety issues - Notifleation)

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et at (Seabrook Station, Units 1 June 23,1989 and 2) l 1

The Licensing Board finds a portion of Applicants' emergency plans to be j adequate. The portion relates to plans to alert people within the portion of the l emergency planning zone that is in Massachusetts. *Ihose plans are found to ,

result in the alerting and notification of the public within about 15 minutes,  !

as required by argulations and guidance, and the sounding of a signal that is adequate - although it somewhat exceeds in volume the 124-dB maximum volume standard found in applicable guidance.

EMERGENCY PLANNING: TIME FOR ALERTING TIIE PUBLIC The total time for alerting the public, pursuant to applicable regulations and guidance, includes conservative estimates of time for all actions prior to the time 519 l

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that essentially a!! the people within 3 miles of the plant are both alcried by a siren signal and informed by the simultaneously broadcast emergency message.

Some of the people to be alerted are considered to have tuned in the message approximately 20 seconds afler the 3-minute siren stops sounding.

EMERGENCY PLANNING: MAXIMUM SIGNAL MAY NOT EXCEED 124 dBC EXCEPT FOR MINOR DEVIATIONS When a siren signal may exceed 124 dBC for a limited time period and within limited local areas, the signal is not considered to be excessively loud.

l In this case, the signal could be as high as 31 dBC for 4 seconds and it also l

could experience an increment of 6 dBC in areas near buildings, due to sound reflection.

TECIINICAL ISSUES DISCUSSED Emergency Planning: Maximum volume permitted for sirens; Emergency Planning: Determination on whether a warning signal can be sounded fast enough; Sound Reflection (emergency planning);

Calculating Time for Alerting of Public (cmergency planning).

FINAL INITIAL DECISION This case involves one aspect of the efforts of Public Service Company of New llampshire, et al. (Applicants) to comply with me emergency planning regulations of the Commission. The particular aspect with which we are concerned involves the adequacy of Applicants' plans, should an emergency occur, to alert people who are within the portion of the emergency planning zone that is in Massachusetts.

Applicants' plans had been to send electmnic signals that would sound sirens that they had permanently mounted on fixed poles. But then the ground was taken out from under the poles. Applicants learned that the Town of West Newbury, Massachusetts, had directed that five utility poles on which sirens were mounted should be removed.8 Applicants sought to block the removal 3

At.AB 883. 27 NRC 43. 47 o 988).

520

l through legal action, but the courts ruled that the Town was within its rights.2 Subsequently, Applicants abandoned all fixed-position sirens in Massachusetts.' l Applicants have now planned a system called VANS (Vehicular Alert Notifi-  !

cation System). VANS would hire 120 people to work round-the-clock shifts to ensure that there will be thosc ready to rush out in the event of an emergency driving trucks equipped with a hydraulic telescoping boom that would arrive at  !

designated destinations, rapidly raise their sirens to at least 45 feet and sound l the alarm.' He Commonwealth of Massachusetts has attempted to demonstrate that the Applicants have not carried their burden of proof in showing that people l will be adequalcly protected by this system. (

l i This Decision deals with those issues left to be litigated subsequent to our Summary Disposition Decision, LBP-89-9, which narrowed the issues in a manner that we will discuss below. f This is the background of our consideration. Because all other issues were decided in our Summary Disposition Decision,5 our remaining charge is to consider whether the VANS system, as currently designed, complies with cmergency planning regulations by not sounding too loud and discomforting a signal and by providing adequately rapid notification of people who might be in the emergency planning zone in the event of a rapidly developing accident at l I

Seabrook.

i I. BACKGROUND DETERMINATIONS )

A. Contested Issues The specific issues left for determination pursuant to our Summary Disposi-tion Decision, LBP-89-9, 29 NRC at 294-95, are:

1. Whether the Planned Siren Sound Levelis Too Loud A.I l. Whether sound levels in cacess of 123 dBC cause enough discomfort so that the Board should not approve the use of sirens at a higher level of sound.

A.1 -2. If there is same level higher than 123 dBC that the Board should allow, what is that kvel?

A.1 -3. Whether Applicants' sirens can provide adequate coverage if used at sound levels j that are not unduly uncomfortable. j l

3Id Iid at 48.

4 At the same time, emergency messages would be broadcast over the emergency broadcast system (13s), to 4

which the pubhc will have been referred by vanaus preemergency nauficassan devices (calmdars, nouces, etc.).

see enerelty. Appl. Exhs. I1 A & 11B; Appl. Dir. post Tr. 75. Anachs. A.o.

8 LBP-89-9. 29 NRC 271 (1989) (summary Disposition Decision),

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i A.14. Whether Applicants' position on the sound level resulting from their sirens is an l underestimate because of sound reflection from buildings.

2. Whether the Destination Sliesfor the VANS Vehicles Are Adequate l

A3 1. Whether the appointed destination locations, including VI 06, VI 07. VI 12, are )

sufficiently level for the safe deployment of the VANS vehicles.

AS 2. Whether or not VANS vehicles may gain physical access to VtA)3, VI 06, VI 07, and VI 12.

3. Whether the Sirens Will Re Sounded Fast Enough A.5 1. What is an appropriate conservative estimate of the length of time it would take for drivers to take the necessary actions before their vehicles leave thcir stations daring conditions likely to prevail at the time of need?

A.5-2. Given that there is snowfall of 0.5 inch or more during 5.5% of the days of the year, would a conservative estimate of travel times to VANS acoustic locations include the somewhat prolonged travel times anticipated during snow canditions? If so, what time estimates should be included?

A.5-3. What is an appmpriate conservative estimate of the length of time h would take for people within 5 miles of Seabrook to receive the informational message to be broadcast over the EBS7 A.54. What is an appropriate conservative estimate of the totallength of time for alerting and informing people within 5 miles of Seabrook? Is that estimate within acceptable guidelines? (If it is longer than 15 minutes, what are the factors we as to consider in deciding whether the time period is adequaic?)

B. Stipulation We note that the issue of adequacy of the destination sites (1ssues A.3-1 and A.3-2) was resolved, favorably to Applicants, by stipulation of the parties; therefore, this issue was not part of the hearing held on May 2-3,1989, in Boston, Massachusetts.

C. Competence of Witnesses ,

I We also note that we found all the witnesses of the parties competent to testify,' as follows:

I 8sn Quahficauons, post Tr. 38,454 (rnsim),310 (parnm). j 522

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Applicants' Witnesses Edward W. Desmarais of the Independent Review Team for the New Hamp-shire Yankee Division of Public Service Company of New Hampshire David N. Kcast, Principal Consultant, Warning System Services Karl D. Kryter, Staff Scientist, Bioengineering Division of SRI International.

Edward Lieberman, President, KLD Associates, Inc.

14uis C. Sutherland. Deputy Director and Chief Scientist, Wyle Research Laboratories, Wyle Laboratories Interrenor's Witnesses Ruth Kanfer, Professor, University of Minnesota Karl S. Pearsons, Senior Consultant, Acentech, Inc.

Charles B. Perrow, Professor, Yale University Gregory C. Tocci, President, Cavanaugh Tocci Associates.

Nuclear Regulatory Commission Staff's Witnesses (" Staff")

Kenneth M. Eldred, P.E., Principal of Ken Eldred Engineering Falk Kanter, Section Chief Emergency Preparedness Branch, Division of Radiation Protection and Emergency Planning, Office of Nuclear Reactor Reg-ulation D. FEMA Approval The Federal Emergency Management Agency has approved the design of VANS. Appl. Dir. post R. 75 at 4. This clothes the design with a rebu: table presumption as to adequacy.10 C.F.R. 0 50.47(a)(2). However, FEMA did not produce any sponsoring witness in this case. n. 298. FEMA has not completed its final review. R. 364. The review that FEMA did complete did not cover any of the factual or legal issues raised in this hearing. W. 365-70. Hence, the FEMA presumption has had no effect on our decision. It has not shifted the burden of proof on litigated issues from Applicants. (Had we considered the rebuttable presumption to apply, it still would not have affected the outcome; as we have reached our conclusions by a clear preponderance of the evidence and do not consider the evidence ever to have rested in equipoise - a state fmm which a presumption might have dislodged it.)

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II. WIIETIIER TIIE PLANNED SIREN SOUND L.EVEL IS TOO LOUD l

NUREG-0654, which provides guidance for us in this case, states that: l he maximum sound levels received by any member of the public should be lower than 123 dB, the level which may cause discomfort to individuals.

NUREG-0654, Appendix 3 at 3-8. This maximum sound level of 123 dB appears to have been breached because the sirens to be utilized in the VANS system operate at a frequency of 550 liz and are rated at 134 dBC at 100 feet.

Appl. Exh.11B at 2-2 to 2-3.  ;

Ilowever, Applicants have demonstrated that there are only very limited I situations in which a bystander will actually hear a sound in excess of the maximum sound level, and we are satisfied that NUREG-0654's intention of balancing emergency needs against the discomfort' of the public has been sen'ed.

Ilence, we find Applicants in compliance with this guidance,' which FEMA also interpreted as permitting similar sirens at the Clinton Power Station.'

We are persuaded to adopt the following proposed findings set forth by Applicants:

In order to clarify the difference between the rated sound output of sirens and the sound level to which bystanders might be exposed, one can draw an analogy between the sound emanating frorn the horn of a siren and the light frorn a flashlight. A flashlight produces a focused beam of light. Some light is shed to the side of this beam but the amount is less than that within the beam. Similarly, the sotmd from the horn of a siren is focused into a beam and less sound is radiated to the sides of the beam.

Appl. Dir. post Tr. 75 at 5-6.

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7 We are not impressed with Applicants' extenmvc argument that we should iraerpret the word " discomfort" to mean physicalinjury. Ahhough the reference point for saning the discomfort level apparently was denved imm considermg a level of sound that would cause hearing damage through daily esposure over a 10sycar penod (ree Appl. Dir. post Tr. 75 at 13) the level was set as one of "diacomfort." To imerpret the language otherwise would be contrary to the clear wording af the NUREo. j Evan the iestimony o' of6cials involved in drafting the NUREo is inadequate to cause us no very the meaning i of the plain words. There is no exception in the language for saens tnat would be sounded only at rare intervals. j rather than daily, and it is very difficult to beheve that such an eaception should be carved in a guidance document addressed to aiuclear power plants. We will not esente such an camption. I aN URFo-0654 is not a regulation. h is guidance Masropolitan EAron Co. (three Mile Island Nuclear station, Uma 1). ALAD.698,16 NRC 1290,1298-99 0982), ouidans may be challenged in a proceeding and need not be ,

apphed verbaum. Vernwar YasAne Nuclear Powrr Corp. (Verinent Yankee Nucinar Power stat on), ALAB-179, 7 AEC 174 (1974); Culf 3sases Utilities Co. (River Bend station. Unita 1 and 2). AtABM,6 NRC 760,772 0977).

' Appi lhr. post Tr. 75 at 6.

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Sirens are normatly rated in terms of the maximum sound levels observed in the focused beam of sound, at 100 feet from the siren. llena,in the case of the VANS siren. it is rated at 134 dBC at 100 feet in she main beam. P.mver. tecause the siren is elevated atxyve the ground, the sound level to which bystanders might be exposed is generally less than the rated sound output of the siren, just like the light received from a flashlight would be less than in its main team if the flashlight shined over their heads.

Id. at 6.

In thic case, the VANS vehicles are designed to raise their sirens to 51 feet, thus creating the auditory analog of displaying a light fmm the top of a lighthouse.

When the sirens are raised to their full height, there is no problem from the direct sound beam. De sound beam is aimed parallel to the carth, and no member of the public will be subject to a sound pressure level greater than 123 dBC. Id. at 6-14 There could be a problem far 4 seconds concerning maximum sound levels if there is an emergency of such severity that it was decided to begin sounding the siren when it is not fully extended but has been raised to 25 feet above the ground. Id. at 15-16; Tr. 88. Should that occur at a time that an individual were located 90 feet from the siren and directly in front of it, then there might briefly be an exposure to a sound level of 131 dBC. However, the boom will continue to be raised so that the sound level will continually diminish as it is sounded.

By the time it reaches 45 feet, the sound exposure will have been reduced to 123 dBC. Appl. Dir. post Tr. 75 at 15-16 and Attach. H.

There also is an issue concerning sound reflection. Intervenor's witnesses testified that people standing in certain positions between the siren and nearby buildings could experience up to 6-dBC additional sound due to reflection from the buildings. Massachusetts Attorney General Dir. post Tr. 454 at 10-13.

When this is additional to the 131 dBC that is possible during the 4 seconds a siren might sound when it is elevated only to a 25-foot height, it is therefore theoretically possible for an individual to receive 137 dBC for 4 seconds. Id. at

12. Once the siren reaches a 51-foot height, then 128 dBC is possible in these locations. Id.

We agree with Applicants and Staff that these temporary (4 seconds) and local (reflective) deviations from the 124-dBC maximum provided in the guidance documents are not significant from a planning standpoint. The guidance is designed to prevent discomfort, not hearing damage. There is no indication that actual damage will occur. Even as a discomfort standard, the minimum deviations found are acceptable. De increased volume of 134-dBC rated sirens will be effective throughout the emergency planning zone with only minimum discomfort to a few people.

We note that the guidance we are interpreting would permit more discomfort than Applicants will cause. For example, the guidance would permit a steady-525

state siren signal of as much as 3 ininutes (NUREG-0654) and the Applicants have chosen to rotate their sirens 2.5 times per minute, reducing the sound exposure at any one part of the arc. The regulations also would permit a 1000- ,

Hz signal, whereas Applicants have chosen a less uncomfortable 55')-Hz signal. l Discomfort resulting from sound signals has been studied by examining the i extent to which there is a temporary hearing loss 2 minutes after the signal was sounded. His " temporary threshold shift after 2 minutes" has been called 7TS2.

The 1TS2 for the maximum signal permitted by the guidance (a 123-dBC sound at 1000 Hz that remains steady and is not rotated for 3 minutes) is 18 dB, as compared to the maximum possible signal generated by Applicants (131-dBC sound from a 25-foot siren - not considering building reflection - at 550 Hz, rota,cd 2.5 times per minute), which has a 1TS2 of 3 or 4 dB. Appl. Dir. post

'IY. 75 at 9-10,14. Even with building reflection included, we find that a 4 second signal of 137 dBC would have a "ITS2 not much over 4 dBC - well below the TTS2 of 18 dB for the maximum signal permitted by the guidance. j We therefore conclude that the discomfort generated by Applicants' sirens is acceptable. The deviation from guidance levels is minimal because of its short duration and because of the limited areas in which building reflection becomes a problem.20 Furthermore, the discomfort caused by Applicants is less than would be permitted had Applicants chosen to generate the most discomforting signal permitted by the guidance.

We also are pleased to note that Applicants plan an improvement in the VANS

• hydraulics, which should make it unnecessary ever to sound sirens at a height less than the full 51 feet. Appl. Dir. post "IY. 75 at 19-19A. However, we do not rely on that capability in reaching our determination.

III. WIIETilER TIIE SIRENS WILL BE SOUNDED FAST ENOUGII Some of the issues relating to speed of dispatch were decided in our Summary Disposition Decision, which settled the times needed for transmitting the alert signal to drivers, the time it will take to drive from the staging area to the destination area, the setup time, and the siren sounding time. LBP-89-9, 29 NRC at 284-85.

In this portion of our opinion, we will first state the law that is applicable to our determination, then we will review (in the order in which they will occur) each of the stages of the alerting and notification system, concluding with a chart 30 We note hir. Ddred's testunany that it has been customary to apply the 123 dBC level inun NURiiGM54 without consideratum or buildmg reflecuan. Dared thr. Tr. 319-21.

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that summarizes the expected total alerting and notification times with respect to each of the sites on which VANS vehicles will be deployed.

A. Legal Setting We have concluded that the law requires that Applicants have the capability for their alert and notification of the public to be essentially complete within about 15 minutes of a determination that there is a fast-breaking emergency. l That the regulation focuses on capability means to us a pmetical realization that the syaem must be able to comply with the regulations but that no system can guarantee results regardless of events and that there could be events in which I

the capability of the system would not be realized.

' The use of the words " essentially complete" and "about" also indicates to us the appropriateness of some flexibility in interpretation. That flexibility does not, however, permit us to exclude the notification of the public, Lluough an EBS system message, from the elapsed time. Based on both the regulations and the guidance, we interpret the regulation to include both alerting and notification of the public within the "about 15 minutes" time period.

We turn now to the legal materials themselves. Appendix E to Part 50,  ;

" Emergency Planning and Preparedness for Production and Utilization Facili-ties" was published for notice and comment and adopted by the Commission.

Administrative Procedure Act (5 U.S.C. 55 552, 553, 44 Fed. Reg. 75,167, 75,171 (1979); 45 Fed. Reg. 55,402, 55,408 (1980). Appendix E provides that-The design objective of the prompt public notification system sha!! be to have the capability to 3 essentially complete the initial notification of the public within the plume exposure pathway l EPZ within abour 15 minutes. iEmphasis added.]

Appendix E then states planning criteria that must be met by an applicant for a license to operate a nuclear power plant.

In addition to these regulations, which have the force of law, this pro-ceeding is affected by a " guidance" document, NUREG-0654, Rev.1 (1980),

which provides further explanation of the planning criteria set forth in 10 C.F.R. Part 50, Appendix E, and which was itself subjected to public comment (44 Fed. Reg. 9768 (Feb.13,1980)) but which has a nonbinding or suggestive effect." Relevant parts of NUREG-0654 state:

"Regulauny guit,ance is always subject w attack in licensing proceedmgs. Mr Band, A1AB444. supre. 6 NRC at *l72. see Public service Co. of New flampshire (Seabrook station. Units 1 and 2), AIAB 875. 26 NRC 251. 260 61 (1987).

I 527  !

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Planning Standard (Mjeans to provide early notificadon and clear instrucum to the popdace within the plume exposure pathway Emergency Planning Zme have been established.

Id. at 43; see also 10 C.F.R. 6 50.47(b)(5).

l Emsluation Criteria Each organization shall establish administrative and physical means, and the time required for notifying and providing prompt instructions to the public within the plume ,

exposure pathway Emergency Planning Zone. (See Appendix 3.) h shall be the licensee's )~

responsibility to demonstrate that sudi means caist. regardless of who implements this requirement.

NUR ;-0654 at 45.

APPENDIX 3 MEAVS FOR PROVIDING PROMPT ALERTING AND NOTIFICATION OF

. Tile POPULATION Commercial broadcast messages are the primary means for advising the general public of the conditions of any nuclear accident. The primary means for alerting the public to an )

impending notificadon by public authorities may be any combination of fixed, mobile or i electronic tone generators which will convey the alerting signal wi:h sufficient timing and intensity to permit compledon of notification by broadcast media in a timely manner. . . .

Id. at 3-2.

Within the plume exposure EPZ the system shall provide an alerting signal and notificadon by commercial broadcast (e.g EBS) plus special systems such as NOAA radio. . .

. . The minimum acceptable design objectives for coverage by the system are:

a) Capability for providing both an alert signal and an informational or instrucdonal message to the populadon on an area wide basis throughout the 10 mile EPZ, within 15  !

I minutes. [ Emphasis added.]

b) The initial notificadon system will assure direct coverage of essendally 100% of the ,

populadon within 5 miles of the site.

{

c) Special arrangements will be made to assure 100% coverage within 45 minutes of i the papidation who may not have received the initial notification within the endre plume l exposure El'I . .

j Id. at 3-3.

We note, as Applicants have argued, that FEMA Guidance Memorandum AN-1," FEMA Action to Qualify Alert and Notifica: ion Systems Against NUREG-0654/ FEMA-REP-1 and FEMA-REP-10" provides that "[w]ithin 15'or 45 (if applicable) minutes of [the decision to activate . . . the system] . . . the 528

! alert signal must be activated and an instructional message must be on the air."

However, we consider this to be improper interpretation of NUREG-0654, which requires that alening and notification both occur within 15 minutes. We interpret this to require sequential alerting and notification since people will not know to receive the EBS notification until after they have heard the siren alerting signal.

Therefore, we reject this guidance.

B, Alert We concluded in our Summary Disposition decision that there was no genuine issue of fact concerning Applicants' assenion that it would take 10 seconds from the time the contact person received an initial notification call to the time that each of the VANS operators would have received an alert message. LBP-89-9, 29 NRC at 284. However, we beclouded that issue by raising the related question of"How long will it take [to alert VANS drivers] if electronic activation fails and radio or telephone voice contact becomes necessary?" Id. Hence, we consider that the question of additional time for voice contact was left open.

Intervenor claims that it will take 1 minute to alert drivers when electronic ac-tivation fails and radio or telephone voice contact become necessary. *llr.121,"12 We have reviewed the cited passage in the transcript and find that there is unop-posed testimony, not objected to by Applicants, that establishes that if electronic alening is entirely unavailable then it would take "on the order of a minute" to alen all the VANS vehicles using voice communication. There is no direct ev-idence on how much time it would take to telephone one or two of the VANS vehicle sites should there be a partial failure in electronic communication. In our discretion, we find that it would take somewhat longer than 10 seconds to alen all the sites if the electronic system failed at one of the sites. Therefore, we add 10 seconds to the alerting time to compensate for the possibility that one of the sites would require telephonic alerting, bringing total alerting time to 20 seconds. (Even were we to rule, based on the burden of proof, that Applicants would take a full 1 minute to alert a single site telephoni: ally, this additional 50 seconds of alerting time would not change our judgraent concerning the out-come.)

C. Dispatch In our Summary Disposition Decision we stated that:

We agree with Intervenor that Applicants have misinterpreted the requirement for conservative calculations with respect to dispatch time. Dispatch time tests included a 12 g,,, gg. Proposed s Tandings and Rulings of taw with Resrut m strm lasues. June 12.1989,at20.

529 1

i k

maximum of 53.35 acconds. Beard Affidavit. Attadt. H at 1 of 4. There were seventeen runs with a dispatch time of over 40 acconds. Id. We notice that all of the runs of over do seconds occurred in the first twenty-seven of the fifty runs,indacating a possible bias due to -

a practice effect. Elence, we conclude that these trials are consistent with a dispatch time of l as great as 53 seconds. I'urthermore. it is not clear whether these tests, where the operators were aware that they would be repeatedly called. are a fair prediction of what would actually happen in an event with no forewarning.

LBP-89-9,29 NRC at 284.

We note that there are reasons to believe that Applicants' tests were conser-vative; Applicants cite those reasons to us. There also are reasons to believe that Applicants' tests lacked sufficient conservatism; intervenor cites those reasons to us. This has led us to review each of the reasons advanced, to weigh them, and to reach our own independent conclusion on the appropriate dispatch time to use.

The parameters of Applicants' test of response time were generally conser-vative. Test conditions were chosen which would be representative of staging j area conditions in general. Appl. Dir, post Tr. 75 at 24-25. Other test condi- ]

tions, such as requiring the operators to walk - not run - to the vehicles after I being mobilized, to verbally acknowledge activation rather than take credit for electronic acknowledgment, and to open overhead doors that will be designed for automatic activa: ion, were designed to assure reasonable bounding time es-timates. Id. at 25.

On the other har'd, we are impressed by Intervenor's expert testimony that the job of VANS driver is intrinsically a boring job in which employees will be difficult to motivate and may be expected to exhibit undesirable traits, such as lateness, absenteeism, and unexcused absence from duty posts. Mass AG Dir. Tr. 469-71 We also agree with the Intervenor that the design of the office environment creates a space to work in that may add to the boredom. 'IY.106, '

112.

We do, however, expect that the Applicants' procedures will have some effect in reducing the risks related to boredom. First, the alarms at the duty stations will be both audible and visual (flashing strobe-type lights). Appl. Dir, post Tr. 75 at 24 Also, there will be an effort made to include other tasks in the VANS-drivers' duties. See Intervenor's Testimony, Tr. 520, 523. More important, there will be a rule that VANS operators are not to leave their duty station until relieved and, given all the attention this issue has received, we are confident that the Applicants will develop supervisory procedures that will ensure that this procedure is effective and that nonperformers will te either fired or rotated to other jobs.23 Appl. Dir, post Tr. 75 at 20-24; see Tr. 523.

I 33 l We note Intervenor's tesumony concerning railroad engmocrs. Tr. 523-21 Ilowever. we have not been informed '

or the tabar and conunctual contest in which the ergineers in the study operated and we are cen6Jent that ror thia (Continued) l l

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j We also are impressed by Applicants' plans for "prioritized dispatch." Under this plan, the first VANS vehicles dispatched will go to the furthest acoustic location. Each of the staging areas has a minimum of one corresponding acoustic location where a VANS vehicle can be completely deployed in an average.of 7 minutes or less, which provides a several-minute margin in the event that a driver is momentarily off-post at the time of an alert. Appl. Dir. post Tr. 75 at 23. (We also note that, whenever possible, actions are taken to provide an advance warning to VANS operators. Id. at 23-24.)

On balance, we consider 53 seconds - a time estimate that we derive from Applicants' testing program - to be an appropriate conservative estimate of the time it will take for VANS vehicles to be dispatched, it is obvious that there could be extreme, unanticipated conditions in which this time could be exceeded 11 is, of course, even possible that one or more drivers would be unavailable because of improper performance of their duty to be alert and on site. Although this contingency would oc fully avoided if sirens were hung on poles and there was no need to dispatch vehicles, that approach is not available, and nonperformance is a resulting risk. Applicants have done their best to mitigate it. We do not consider that this possibility prevents Applicants from having the required " capability" to provide an appropriate alerting system.

D. Route Transit

'Ihe only question concerning route transit is the extent to which winter snow or ice conditions slow down the VANS vehicles. In this regard, we accept Applicants' position that there will be a 25% reduction in the speed factor. E Appl. Dir, post R. 75 at 25-30. We use as an element of conservatism the large wheels on VANS vehicles, but we do not deduct any time for this feature since a vehicle may always find itself behind an ordinary car with smaller wheels.

See id. We do not consider it necessary for Applicants to plan for more extreme weather conditions, such as those existing in Portland, Maine, on 21 days over an 8-year period - during which transit times varied from 27% to 39%. R. 245.

We will use the 25% reduction factor in our conclusions.

E. Setup of Sirens in our Summary Disposition Decision, we accepted Applicants' position that once VANS vehicles arrive at their destination sites they can set up their sirens within 1 minute. LBP-89-9,29 NRC at 285.

newly created position a job can be defined that would permit discipline and 6 ring for absence frorn the job post.

The anjy significant responsibihty in this job is to be pasent and alert enough to hear a loud siren. accornpanied by strobe Ughts.

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I F. Siren Sounding

'Ihere is no dispute concerning Applicants' assertion that sirens will be sounded for 3 minutes. Id.

l l

G, Message Capability Based on our reading of the regulations and guidance, as also set forth supra at $28 ff., Applicants must have the "[c]apability for providing both an alert I I

signal and an informational or instructional mcssage" within 15 minutes. The fact that the message and siren sounding are simultaneous is not persuasive.

Until a person hears both the siren and the message, the person is not informed l of the appropriate action to take. We consider that the full 3-minute timing for the siren is appropriate for the purpose of assuring that essentially all the people in the 5-mile zone are alerted. Logically, there is a distribution of the times at which the people will hear those signals, with somc receiving it at the end of the 3-minute time period.

Rr conservatism, we consider it appropriate to add the length of time for the EBS message to all the previous times involved, so that those hearing the siren near the end of its sounding will have time to hear the EBS message.

In this instance, the longest EBS message is 2 minutes and 38 seconds, as timed by the Board under stipulation by the palties. 'lY. 285. Under the EBS procedure, a tone and initial announcement lasting 55 seconds will begin at I the onset of the 3-minute siren period. Then the 2-minute,38-second message may be played, for a total of 3 minutes and 3 seconds for the tone, initial announcement, and longest EBS message to play sequentially. After the 3-minute siren stops sounding, therefore, the longest message may continue for 3 seconds. Rr these hearing the siren near the end of the 3 minutes, it l will therefore take 3 minutes and 36 seconds (3-second delay; 55-second tone  ;

and initial announcement; and 2-minute, 38-second substantive announcement)  ;

before they will be fully informed." l l

1 34 Because of the contmuous playing of messages, sorne people will begin hearing the beginning of a rnessage, j while othets will begm hearing in the middle. A portion of those beginning in the middie may be confused and i meed a full hearing from begmrung to end. However this will catend the time beycnd what we compute only for a portion of those people who wait until the end of the alerting period to begin tuning in their radio. We do rat consider 11 necessary to account for this contingency within the requirement that people ne alerted and notified. l We note that staff has cited NUREo.0654, Appendut 3, to state that l A prompt notification scheme shallinclude the capabihty of local and state agencies to provide information pmmptly over radio and '!V at #Ae ilma of activados of sAa stardag signal [ Emphasis added by staff in Proposed Fmding at 321 This guidance anticipates that there is a single time of activation for all the signals (the time"), which will not be the caset we assume the EBs message should begin simuhaneously with the activation of ras frst siren -- there being no reason to wait until a!! strens are deployed before soun6ng the first sirens flowever. we do not irnerpret this "capabihty" as detractmg from the simuhaneously requirement of alenmg and notifying within 15 mmutes.

532

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\

Since these messages appear to be of a reasonable length for the purpose intended, we are not persuaded by Applicants' argument that they cannot control i

the length of the broadcast message and should not be penalized for that length within their allotted 15-minute time period. Were the message of unreasonable length, we might consider this issue in another light.

We are adding an additional 12 seconds of time because there could be a l delay in finding and tuning in a radio. We have no direct evidence on how l

I much time to allot; however, we assume that the public has had an opportunity to learn the EBS procedure and that 15 seconds is adequate time to find and tune a radio. We add only 12 seconds because only those who are actually alerted at the very end of the siren sounding are affected and there is a 3-second delay before the alert tone and message will start -a message that begins with a tone that does not contain essential information.

We therefore find that it will take 3 minutes and 58 seconds after the end of the sounding of the siren before people may reasonably be expected to hear a recording of the longest prerecorded EBS message.

II. Conclusions Concerning Overall Time We have now discussed each of the elements of time, other than the transit times to each of the sites. Since the transit times for each of the sites were accepted by us in the Summary Disposition Decision and are accepted by all the parties, all the elements of time are fixed and all we need do now is add them together.

The following times are the same for all the sites:

TABLE 1 Time Required for Itnctions Affecting All Sites Time 4

ITmetion (Minutes: Seconds)

Alert :20 Dispatch :50 ,

I Setup 1:00 Sound Siren 3:00

'Ibning and Message 3:58 TOTAL (ALL SITES) 9:08 l

i 533 1

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As a result, the summary of times for each site can now be set forth in Thble

2. The times in Table 2 have been computed with a variety of conservative assumptions, including an assuraption of winter weather that will reduce transit times by 25E Note that three of the locations, shown in boldface ty;x: in Table 2, have total times in excess of 15 minutes. No location has a time in excess of 20 minutes.

Under all the circumstances of this case, including the fact that concerned politJcal jurisdictions can reduce alerting and notification times by making sites available for sirens permanently mounted on poles, we consider this distribution of alerting times to be permissible. Indeed, we appreciate how well Applicants have done in surmounting difficult problems in order to design an acceptable second-best system.u IV. STATEMENT OF CONCLUSION In this Decision, we have determined that the VANS system does adequately i comply with emergency planning regulations in that the plan for using the sirens I does not generate an inordinate volume of sound. We have also determined that the expected time for alerting and notification - though three VANS locations i somewhat exceed 15 minutes -~ is adequate, considering all the circumstances I of this case. .

Our answers to each of the questions set for hearing are: ]

1. Whether the Planned Siren Sound Levelis Too Loud A.11. Whether sound levets in excess of 123 dBC cause enough discomfort so that the Board shmid not apprtwe the use of sirens at a higher level of sound.

Answer: Applicants plan to exceed 123 dBC for a very brief time period and to use their sirens in such a way that people standing in the ref!cctive area l in front of buildings located within 100 yards of the sirens will receive sound levels of up to 6 dBC in excess of 123 dBC. We find that these violations of the j standard set in the guidance, which is not binding on us, are minor. We accept these minor deviations from the standard suggested in the guidance.

H Ahhough the mausr has not been litigated directly, there is httle quesnan that the best alerting systern would be to use sirens fixed on poles. Because that option is not available to Applicants, this pmceedmg represents meir '

auempt to persuade this Board that they can satisfy the Commission's regulations with a next-best effort. We note that if the citizam of Massachuscus am seriously concerned about the rew catra minutes we are permittmg VANS, they can save stus tune and more by changing local agulations to parmit sirens to be mounted on fined poles.

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i TABLE 2 Times for Each Site -

Including in the Total 9 Minutes,8 Seconds from Table 1 (Times in: Minutes: Seconds)

Winter Total Transit Winter Location Transit 6 (+ 25%) (+9:08) 8:37 10:46 19:542' 1

2 5:03 6:19 15:27*

8:06 17:14*

3' 6:29 0:00 0:00 9:08 4

0:00 0:00 9:08 5

3:09 3:56 13:04*

6 3:42 4:38 13:46-7 7:13 9:01 18:09*

8 7:17 9:06 18:14*

9 7:18 9:08 18:16* -

10 7:32 9:25 18:33*

11 8:25 10:31 19:39-12 8:03 10:04 19:12 13 14 0:55 1:09 10:17*

3:01 3:46 12:54 15 16 11:43 14:39 23:47*

meso locations pnwide pnmary siren coverage only fa populations beyond 5 miles of the site.1 hey are, therefore, nas subject to the Appendaa 3 requirernent that " essentially 100% of the population" be alertad within 1$ minutes.

NOTE: Tima of over 15 nunutes for amas within 5 miles of the Seabrook Station site are shown in boldface type.

A.1 2. If there is some level higher than 123 dBC that the Board should allow, what is that level?

i Answer: Under the circumstances of this case, we have permitted up to 137 )

dBC for 4 seconds and, generally, up to 129 dBC, which may occur only in local areas near buildings, where sound reflection is expected to occur.

16 Appl. Ihr.postTr.75 at 28.

17We fmd that in winter months, the population served by this locanon is reduced enough in density that it would be adequately alened by a 63 dHC sound Icvel, which is provided by sirais at acoustic locatiats VI 02,-04, and 15, all of which have shoner predicted winter transit ttmes and resulting total:imes. Id at 26 27.

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" --------_______m_____ _______ .__ _ ___________ ______

I A. I .3. Whether Apphcants' sirens can provide adequate coverage if used at sound levels that are not unduly uncomfortab!c.

l Answer We have found that Applicants' notification system is adequately comfortable and, at the proposed sound levels, it is conceded to provide adequate Coverage.ts A. I .4. Whether Arplicants' posidon on the sound level resuldng from their sirens is an underestimate because of sound reflection from buildings.

Answer: We agree with Intervenor on this point. Reflection of sound from buildings will cause up to a 6-dBC increase in sound levels. The evidence suggests that these increased levels will occur.

2. Whether the Destination Sitesfor the VANS Vehicles Are Adequate A.3-1. Whether the appointed destinadan locations, including VLO6, VLO7, VL12, are sufficiently level for the safe deployment of the VANS vehicles.

Answer: The sites a:e sufficiently level. The parties have stipulated to this.

A.3-2. Whether or not VANS vehicles may gain physical access to VLO3, VLO6, VIATI, and VL12.

Answer: The VANS vehicles may gain physical access to the listed sites.

The parties have stipulated to this.

3. Whether the Sirens Will Be Sounded Fast Enough A.5-1. What is an appropriate conservative endmate of the length of time it would take drivers to take for the necessary actions before their vehicles leave their stations during condidons likely to prevail at the time of need?

Answer: We have decided to use a conservative time-of<lispatch figure derived from tests conducted by Applicants. The figure is slower than the one suggested by Applicants but it does not assume unavailability of drivers because of motivational concerns. We are satisfied that the loudness of sirens, the visual prominence of strobe lights, the use of regular supervision to fire I8 11ad we requued a reduction in volume of sound frun the sirens, sound coverage would have been seduced to unacceptable levels. Appl. Dir. past Tr. 75 at 206-07.

536

k nonperforming employees, tr.d a phased system for dispatching drivers, provide l

adequate combined guarantees. We do not require Applicants to ensure the impossible: that some driver some time may be delinquent at the time of an I

emergency. Applicants have promised to do what is practicable, and we are satisfied that is adequate.

A.5-2. Given that there is snowfall of 0.5 inch or more during 5.5% of the days of the year, wou!d a conservadve estimate of travel times to VANS acoustic locations include the somewhat prolonged travel times anticipated during snow conditions? If so, what time estimates should be included?

Answer: We find that it will take 25% more time for Applicants to travel to VANS destination locations during winter weather.

I A.5-3. What is an appropriate conservative estimate of the length of time it would take for people within 5 miles of Seabrook to receive the informational message to be broadcast over the EBS7  :

Answer: 'ntree minutes and 58 seconds after the siren has stopped sounding.

A.5-4. What is an appropriate cmservative esumate of the totallength of time for alerting and informing people within 5 miles of Seabrook? Is diat estimate within acceptable guidetines? (If it is longer than 15 minutes, what are the factors we are to consider in deciding whether the time period is adequate?)

Answer: The total length of time for alerting and informing people is set fonh in Table 2, which shows different time values for different VANS locations due to the amount of travel time involved. Note that the sites marked with asterisks are not required to alert and notify people within 15 minutes because they are not the primary alerting mechanism for any population within 5 miles j of the site.

V. ORDER {

For all the foregoing reasons and upon consideration of the entire record in j this matter, it is this 23d day of June 1989, ORDERED, that:

1. All genuine issues of fact are hereby resolved in favor of the compliance of Public Service Company of New Hampshire, cf al. (Applicants) with the applicable regulations and guidance, as applied by this Board.

2. VANS (Vehicular Alert and Notification System), which is Applicants' public alert notification system for the Massachusetts portion of the Seabrook 537 l

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l 1

I Station EPZ, is found to meet the requirements of the Commission's regulations and guidance, Ls applied by this Board. i

3. There is reasonable assurance that persons located in the Massachusetts portion of the Seabrook EPZ will be notified of a radiological emergency at l Seabrook Station within about 15 minutes of the time that cognizant officials of the Commonwealth of Massachusetts decide to make such notification.

4 This Decision disposes of a discrete and major segment of the full-power operating license proceeding. Accordingly, any party may take an appeal from this Decision by filing a Notice of Appeal within ten (10) days after service of this Decision. Each appellant must file a brief supporting its position on appeal within thirty (30) days after filing its Notice of Appeal (forty (40) days if the Staff is the appellant). Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants (forty (40) days in the case of the Staff), a party who is not an appellant may file a brief in support of or in opposition to the appeal of any other party. A responding party shall file only a single, responsive brief regardless of the number of appellants' briefs filed.

See 10 C.F.R. { 2.762 (which controls thc appeal proceeding, regardless of the language of this paragraph).

THE ATOMIC SAFETY AND LICENSING BOARD Emmeth A. Luebke j ADMINISTRATIVE JUDGE Jerry Harbour ADMINISTRATIVE JUDGE j i

Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Bethesda, Maryland )

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I f i Cite as 29 NRC 539 (1989) LBP-89-18 1

l 1

I l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I l

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. James H. Carpenter Gustave A. Linenberger, Jr.

In the Matter of Docket No. 50-271-OLA (ASLBP No. 87 547 02-LA)

(Spent Fuel Pool Amendment)

VERMONT YANKEE NUCLEAR POWER CORPORATION (Varmont Yankee Nuclear Power l Station) June 30,1989 i

The Licensing Board grants in part motions of the Applicant and NRC Staff ~

to strike testimony of an Intervenor's witness submitted for oral argument.

Striking of the testimony was without prejudice to its later submission under defined circumstances. As a result of the Intervenor's determination not to contest further the portion of the contention for which the stricken testimony was sublaitted, the Board also dismisses for lack of contest that portion of the contention.

NEPA: CONSIDERATION OF ALTERNATIVES (1102(2)(E))

In an Environmental Assessment, under i102(2)(E) of the National Envi-ronmental Policy Act (NEPA),42 U.S.C 64332(2)(E), an agency must give informed and meaningful consideration to - i.e., must take a "hard look" at -

viable alternatives. See, e.g., Bob Marshall Alliance v. Hodel,852 F.2d 1223, 1228-29 (9th Cir.1988), U.S. appeal pending; Van Abbema v. Fornell, 807 539

F.2d 633, 642 (7th Cir.1986); North Carolina v. Iludson, 665 F. Supp. 428, 447 (E.D.N.C.1987).

L NEPA: CONSIDERATION OF ALTERNATIVES ($ 102'2)(E))

The unused capacity of a spent fuel pool may constitute a "rcr.ource," within the meaning of 9102(2)(E) of NEPA,42 U.S.C. i 4332(2)(E), as to which there is an " unresolved conflicL' City ofNew York v. U.S. Department ofTransportation, 715 F.2d 732,742 (2d Cir.1983); North Carolina v. IIudson,665 F. Supp. 428, 445-46 (E.D.N.C.1987); cf. Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-584,11 NRC 451,458 n.14 (1980).

I MEMORANDUM AND ORDER-(Environmental Contention 3)

On June 21,1989, the Licensing Board conducted an oral argument, as au-thorized by 10 C.F.R. 62.1113, concerning the non-accident portion of Envi-ronmental Contention 3, sponsored by the New England Coalition on Nuclear -

Pollution (NECNP), an Intervenor, and the Commonwealth of Massachusetts, an interested State (hereinafter Interveners).1 Appeanng at the oral argument were representatives of NECNP, the Commonwealth of Massachusetts, the State of Vermont, the Applicant, and the NRC Staff.

At the oral argument, we struck (without prejudice to possible later resubmit- I tal) portions of the testimony submitted by NECNP, for reasons set forth below.

We also dismissed the non-accident portion of Environmental Contention 3 but are permitting those portions of its bases as are necessary to litigate the acci- )

dent portion of the contention to remam in controversy, to be utilized only if l I

the accident portion of the contention is in fact litigated.2

1. Environmental Contention 3 was admitted by our Memorandum and Order (Late-Filed Environmental Contentions) dated October 11,1988, LBP-88-26,28 NRC 440,448-50. It reads as follows:

I he oral argurnent was acheduled thmugh our Mamarandum (Ielephane Conference af 4/19/89), dated April 21, 1989 (unpubluhed) and our Notice of oral Argurnent, dated April 24.1989 (puhhshed at 54 Fod. Reg.18.618 4

play 1,1989)).

For convernance of saference, t'ne non-accident portion of Environrnental Contention 3 win be designated as Envuormental Cornention 3(A) and the accident portion af the contenuan will be designated as Ermrunmanal -

Conternion 3(B).

540

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1 The NRC has failed to give adequate consideration to the ahernative of dry cask storage. l and has thus not cornplied with the provisions of the National Enviroinnental Poticy Act, i nor of its own rules in 10 CF.R. Part $1.8 As bases for this contention, the Interveners relied both on the bases for Envi-ronmental Contention 1, their severe. accident contention (incorporated by refer-ence), and on certain perceived deficiencies in the NRC Staff's Environmental Assessment (EA), dated July 25,1988.

In LBP-88-26, we admitted the contention but specifically declined to accept the severe-accident portion of the bases that had been proffered.' Subsequently, however, we reconsidered our severe-accident rulings and admitted the severe-accident bases for Environmental Contention 3, as well as Environmental Contention 1. Memorandum and Order (Motion for Reconsideration of Severe-Accident Ruling), LBP-89-6, 29 NRC 127 (1989). We referred these latter I

rulings, however, to the Appeal Board and postponed their effectiveness pending Appeal Board (or Commission) action that would confirm their effectiveness.

De Appeal Board thus fr.r has not ruled on our referral.

2. Various parties, including NECNP, filed their testimony on Environmen-tal Contention 3 on May 23,1989. In a Memorandum (Issues for Consideration at 6/21/89 Oral Argument), dated May 25,1989 (unpublished), we spelled out several issues raised by the direct testimony which we desired the parties to address, either in responsive statements or at oral argument. One of those issues was the extent to which NECNP's direct testimony (of Dr. Gordon Thompson) l rested upon accident considerations pending (by virtue of our referral of LBP-89-6) before the Appeal Board.

NECNP, the Applicant, and the NRC Staff each filed responses on June 9, 1989, which dealt, inter alia, with the questions we had posed in our May 25, 1989 Memorandum. Among other matters, NECNP filed rebuttal testimony of Dr. Thompson. Moreover, on June 9,1989, the Applicant and NRC Staff each filed motions to strike in its entirety the direct testimony of Dr. Thompson. They also sought dismissal of Environmental Contention 3 (at least its non. accident portions)(sec ~n. 463). At oral argument, the Applicant and NRC Staff extended their motions to strike to cover as well the rebuttal testimony of Dr. hompson (tr. 548-49 (Applicant); "R. 484-86, 493 (Staff)).

3. Most of the oral argument was devoted to consideration of the motions of the Applicant and NRC Staff to strike the testimony of Dr. Thompson and to dismiss the non-accident portions of Environmental Contention 3. The Applicant and Staff each argued that the claims concerning the superiority of dry cask 3Jaint Motion of New England Cashhan an Nuclear Pollution and the Cnmnumweahh of Maeschumeus for tmve  ;

so File teFiled Cantannons, dated August 15,1988, at 4. l

'tEP.8s-26, supra 28 NRC at 450 n.16. We also dechned to adnut at that strne Envunnmental Contentm 1. l canceming the nsk of severe accidems.  !

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s storage on the basis of accider.t considerations could not be considered in the absence of Appeal Board action on our referral of LBP-89-6. For its part, n NECNP tried to distinguish between severe-accident considerations involving core-melt accidents and other beyond-design-lmsis accidents not necessarily involving core-melt consequences - claiming that only the former was included in the referral to the Appeal Board (TY. 508-11, 530-34).

NECNP also asserted that not all of Dr. Thompson's testimony dealt with accidents and sought at least to retain the non-accident portions of the testimony.

(nat testimony dealt with the costs of dry cask storage and the time needed to design and license a dry cask storage facility.) With terpect to this claim, the Applicant asserted that Dr. Thompson lacked competence to address the non-accident portions of his testimony (Applicant's Memorandum in Support of its Motion to Strike and to Dismiss, dated June 9,1989, at 5-6;"It. 454-62); whereas the StatT treated his entire testimony as pertinent only to the consideration of accidents Paff Motion to Strike, dated June 9,1989, at 1;'It. 485,486,493).

At the oral argument, we ruled that the entire portion of NECNP's inses for Environmental Contention 3 which dealt with accidents had been referred by LBP-89-6 to the Appeal Board, and we granted the motions to strike insofar as they dealt with the accident-related portions of Dr. .*hompson's testimony l (i.e., all of (VI, the second question and first paragcaph on the answer in i V11, the last Question and Answer in $ Vil (at 11), all of lf Vill and IX, md $11A of Dr. Thompson's Rebuttal Testimony) (71. 582-83). This action is without prejudice to the later submission of the testimony, if NECNP elects to do so, in the event the Appeat Board permits litigation of Environmental Contention 3(B). We concluded that the non. accident claims of NECNP were sufficiency disparate from the accident claims to permit their separate litigation and that Dr. Thompson has sufficient qualifications to permit the consideration of the remainder of his testimony bearing on the non-accident aspects of Environmental Contention 3.5 4 In our ruling on the motions to strike Dr. Thompson's testimony and to dismiss Environmental Contention 3, we noted that, in permitting litigation of the nonaccident portion of the contention, there remained the question of whether the NRC Staff, in its EA, had given informed and meaningful consideration to

- i.e., had taken a "hard look" at - viable alternatives as demanded by many courts (Tr. 583, 615). See, e.g., Bob Marshall A!!iance v. Hodel, 852 F.2d 1223,1228-29 (9th Cir.1988), U.S. appeal pending; Van Abbema v. Fornell, 807 F.2d 633,642 (7th Cir.1986); North Carolina v. Hudson,665 F. Supp. 428, 447 (E.D.N.C.1987). We also noted an open question as to whether the unused capacity of the pool itself constituted a " resource," within the meaning 8

We express no opimon. of comac as to the weigh that migM be accorded to Dr. 'Diampson's tesumsmy.

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of $ 102(2)(E) of NEPA, 42 U.S.C. 64332(2)(E), as to which there was an

" unresolved conflict." City of New York v. U.S. Department of Transportation, 715 F.2d 732, 742 (2d Cir.1983); Hudson, supra 465 F. Supp. at 445-46; cf. Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2),

ALAB-584,11 NRC 451,458 n.14 (1980); see also Staff's EA, dated July 25, 1988, at 4,15 ("the expansion capacity of the existing pool is a resource that should be used"); but cf. Tr. 487 (Staff); Th 505 (NECNP).

Nonetheless, following our ruling, NECNP, the Commonwealth of Mas-sachusetts and the Applicant each agreed that the environmental impacts of dry

! cask storage and rcracking are, apart from accident considerations, essentially benign and approximately equal (Th 586, 593, $98-99); and that there is no longer any dispute as to alternative uses of resources, necessary to bring the i "hard look" requirement of $ 102(2)(E) of NEPA into play. They and the Staff agreed that, without any further contest as to the non-accident aspects of the contention, those portions of the contention should be dismissed, for lack of contest. 1 At the conclusion of the oral argument, the Licensing Board determined {

i to dismiss Environmental Contention 3(A) as no longer in contest. We leave for another day the resolution of the open questions which we identified above. However, we are permitting retention of such pans of the bases for l Environmental Contention 3(A) as are necessary to litigate properly the accident portion of the contention, should that action be authorized by the Appeal Board 3 or Commission. To the extent these bases are being retained, they may be used j only for litigation of the accident portion of the contention and not independently (Tr.615).

l.

IT IS SO ORDERED ,

I FOR THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland June 30,1989 543

-m Directors' Decisions -

Under 10 CFR 2.206

)

Cite as 29 NRC 545 (1989) DD-89-4 UNITED STATES OF AMERICA j

NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director in the Matter of Docket No. 50-482 WOLF CREZ.K INCLRAR OPERATING CORPORATION (Wolf Creek Generating Station,.

June 5,1989  ;

Unit 1) .

The Director of the Office of Nuclear Reactor Regulation denies a petition filed by the Kansas Chapter of the Sierra Club that requested the Nuclear Regulatory Commission (NRC) to suspend the operating license issued to the Wolf Creek Nuclear Operanng Corporation (WCNOC or Licensee) until the Licensec takes the corrective actions requested in the Petition to achieve assurance of adequate protection of the public health and safe,ty. Petitioners based their request on allegations that (1) fmm the inception of its Quality Assurance program to date, management at Wolf Creek has ignored real safety J

concerns; (2) from the inception of operations at Wolf Creek, management has I

repeatedly failed to safeguard the integrity of its quality assurance program and has failed to demonstrate management competence to address and resolve real safety concerns; and (3) the NRC's actions to date pmvide no reason to conclude that the acknowledged safety problems at Wolf Creek have been resolved or will be resolved within a reasonable period of time.

RULES OF PRACTICE: SHOW CAUSE PROCEEDING, PRIOR DECISIONS Where the Director, NRR, has issued a decision denying a petitioner's request, and a second petitioner makes a request based on the same ground,s as the first petitioner without submitting any new information, the Director,.

NRR, may rely on his prior decision.

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__m___________._.___ _ _ _ _ _ . _ , _ _ . _ _ . __ ... . . . _ .

i NUCLEAR REGULATORY COMMISSION: IIEALTil AND SAFETY RESPONSIBILITIES Where a licensee has initiated a voluntary program to resolve employee allegations and the NRC has inspected all the fdes generated by the program and resolved 100% of the technical issues raised in those files, the NRC need not take further action, even though the files contained documentation of procedural deficiencies unrelated to the safety aspects of any allegation.

ENFORCEMENT ACTIONS: EFFECT ON PETITIONS UNDER 10 C.F.R. 6 2.206 Where the NRC has taken enforcement action against a licensee for violations of the Commission's regulatory requirements, the NRC will not normally reopen the enforcement action in response to a petitioner's request for enforcement action based on the violation.

TECliNICAL ISSUES DISCUSSED Quality Assurance Program; Q1 Program (voluntary);

SALP Reports.

DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 I. INTRODUCTION By Petition dated January 30,1989 (hereafter referred to as the Petition), sub-mitted to the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 C.F.R. f 2.206, the Kansas Chapter of the Sierra Club (hereafter referred to as the Peti.tioners) requested immediate NRC action to prevent undue risks j to the public health and safety posed by the operation of the Wolf Creek Gen- j erating Station (Wolf Creek) in Burlington, Kansas. The Petition requested the j NRC to suspend the operating license issued to the Wolf Creek Nuclear Oper-ating Corporation (WCNOC or Licensee) until the Licensee takes the corrective actions requested in the Petition to achieve assurance of adequate protection of the public heahh and safety. Specifically, the Petitioners allege that (1) from the inception of its Quality Assurance program to date, management at Wolf Creek i has ignored real safety concerns; (2) from the inception of operations at Wolf I Creek, management has repeatedly failed to safeguard the integrity of its quality 546

assurance programs and has failed to demonstrate management competence to address and resolve real safety concerns; and (3) the NRC's actions to date, provide no reason to conclude that the acknowledged safety problems at Wolf Creek have leen resolved or will be resolved withiri a reasonable period of time.

• lhe Petitioners requested that the NRC accomplish the following:

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1. Suspend WCNOC's operating license for Wolf Creek.

2. Before reinstating the operating license:

f Reopen its Office of Investigations (OD Case No. 4-86-004 to a.

l provide sound technical reasons for its conclusion that this nuclear power plant is safe enough to operate in spite of all of its investigative conclusions regarding quality assurance problems.

' b. Review all of its information on quality assurance at Wolf Creek developed subsequent to the issuance of Case No. 4-86-ON and covering operations at Wolf Creek through 1989 to provide sound technical reasons for its conclusion that this nuclear power plant is safe enough to operate.

c. Modify WCNOC's license to operate Wolf Creek by incorpo-rating license conditions that require all corrective actions de-termined by NRC to be necessary to achieve a level of operating safety that complies with federal regulations, and if these condi-tions are not met, revoke the operating license,

d. Bar the following persons, whose activities were detailed in the Office of Investigations Case No. 4-86-0M because of their al-leged failures to safeguard the integrity of Wolf Creek quality as-surance programs and their alleged lack of competence to identify and resolve real safety concerns, from any and all involvement or participation in activities at Wolf Creek Generating Station whether as a salaried employee, a contract employee, a consul-tant, a volunteer, a manager, or in any other position:

(i) William Rudolph (ii) Glenn Koester (iii) Robert L. Scott (iv) Charles Snyder (v) Any other individual who the NRC determines has pre-vented Wolf Creek Generating Station from complying with federal quality assurance regulations in a culpable manner.

By letter dated March 23,1989, I acknowledged receipt of the Petition and informed the Petitioners that the matters identified in their Petition did not require any immediate action to protect the health and safety of the public. I also stated that appropriate action would be taken on the Petition within a reasonable time.

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I have now completed my evaluation of the Petition.1 For the reasons set forth in the discussion below, the Petitioners

• requests for action are denied.

II. BACKGROUND Every NRC licensee is required by regulation to have a quality assurance program, as described in 10 C.FR. Part 50, Appendix 'B, which appliu to all activities affecting the safety-related functions of all structures, systems, and components. These activities include designing, purchasing, fabricating, handling, shipping, storing, cleaning, erecting, installing, inspecting, testing, operating, maintaining, repairing, refueling, and modifying, and apply to both construction and operation. Appendix B contains eighteen separate criteria that licensees must satisfy, including design control (Criterion Ill), material control (Criteria VII, VIII, X, and XV), and corrective action (Criterion XVI). Licensees satisfy these criteria by following procedures that ensure that Appendix B 1 requirements are satisfied on a continual basis throughout the normal course of construction and operation of the facility. I In early 1984, the Licensee initiated the Quality First (Ql) program at Wolf Creek to establish "the necessary administmtive and investigative measures to ensure that all quality concerns related to safe plant operations, quality of work..

compliance with requirements or management are appropriately evaluated, in-vestigated, dispositioned, verified, and documented."2 Re Q1 program provided an independent route for Wolf Creek employees to raise quality concerns.8 The l Q1 program evaluated concerns brought to it and referred those concerns ap-p:aring to have merit back to the Licensee's appropriate organizaQn. These organizations then resolved the technical issues pursuant to the strict require-ments of Appendix B. The Q1 program, which was entirely separate from the Licensce's required quality assurance program, was not intended to resolve con-cerns pursuant to Appendix B, and its actions were not intended as a substitute for satisfaction of Appendix B requirements. Regardless of whether or not the Licensee had a Q1 program, or, if so, how well or poorly it functioned, the Licensee always was required by NRC regulations to comply with the quality assurance criteria of Appendix B. Appendix B does not require licensees to have programs like Ql, but the NRC does encourage its licensees to develop and im-plement them. ne program, available to all site employees, affords them an I

Dy louer dated June 20,1989. the ticensen submitted a mpanse m oppisition to Paitiones' request While I did na have the ticensee's leuct while I was evaluaung the Peuuon. it is unsistent with this Decision and raises no new information.

2 Kansas ons & Dectne Company's (KG&E's) Quality Concern Repaning system. Procedure No. IH.29,Rev. o.

dated February 24.1984.

8 NRC resident inspectors are always available to receive employees' concerns about safety, whether the ticenses has an independent pogram such as Q1 or not 548

i opportunity to report concerns personally to Q1 investigators or anonymously by a telephone " hot line." Information about the program and instructions for l reporting concerns are posted at the site and made available to site cmployees. I In addition, employees are interviewed by QI personnel when they terminate their employment at Wolf Creek and asked if they have any quality concerns to l

report for Q1 investigation.

In May 1985, acting on behalf of the Nuclear Awareness Network (NAN), ,

I the Government Accountability Project (GAP) filed a petition pursuant to 10 C.F.R. 52.206 alleging that safety concerns raised through the Q1 program were being either " ignored or buried" by both KG&E management and the NRC. In addition, GAP asserted that the NRC should have taken possession of the Q1 files but did not do so, and alleged that the NRC Staff had provided an inaccurate presentation to the Commission during the Wolf Creek operating license proceedings. The GAP petition alluded to over 700 alleged safety concerns from over 240 individuals in the Q1 files and requested the NRC to accomplish the following:  !

1. Take possession of the Q1 files and provide the Commission and the public an analysis of why the alleged significant safety-related (

deficiencies identified for the previcus year (i.e., the year preceding l May 15,1985) by members of the work force do not pose a danger to the public health and safety.

2. Conduct an inquiry on the ramifications of the collective safety significance and/or adequacy of the quality assurance program in light of the information contained in the Q1 files.

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3. Provide an explanation from both NRR and Region IV as to why they I allegedly allowed the allegations to be exempt from the regulatory analysis for determination of safety significance.

4 Initiate an OI investigation into the alleged compromise of the Q1 l l

program by William Rudolph, site Quality Assurance (QA) manager.

The GAP petition was addressed in Director's Decision DD-88-14 (28 NRC 260), dated August 22, 1988, a copy of which was forwarded to Petitioners i i

in my letter of March 23, 1989, that acknowledged receipt of their Petition.

Briefly stated, Director's Decision DD-88-14 responded to the GAP petition in the following manner (numbering corresponds to the above allegations):

1. During May 1985, a special sixteen-member NRC Staff team re-viewed in depth all Q1 files (271 case files containing a total of 752 concerns) to determine whether Licensee management had properly dealt with the concerns brought to the organization. After a careful review, the team concluded that a number of programmatic aspects of the Q1 program were deficient, but did not identify any violations of, or deviations from, NRC requirements, nor did it find any indica-549

tions that the Q1 progiam failed to properly assess and resolve any significant safety concerns.

2. Despite critical comments regarding prognunmatic elements of the Q1 program, the NRC review team found the Q1 program effective in investigating and resolving identified safety concerns. The NRC

' team found that Q1 management investigated, resolved, and corrected, as appropriate, all technical safety concerns and that there was no evidence to support the allegation that either the Licensee or the NRC Staff " ignored or buried" any safety concern.

3. The NRC Staff discussed the results of its review of the Q1 program case files with the Commission during the public meeting on June 3, 1985, re:garding issuance of a full-power license for the Wolf Creek Generating Station. Nine issues arising from the Q1 program were identified as requiring supplemental work. His work was performed by the Staff, and the issues were satisfactorily resolved. He Staff concluded that there were no technical issues that would cause it to recommend against issuing a full-power license.

4 The OI investigation completed in November 1987 concluded that a substantial number of concerns that merited a thorough investigation were given only superficial attention, were inadequately investigated, and accepted by Q1 management. Despite the number of shortcom-ings idertified in the Q1 program, OI concluded that the evidence did not establish wrongdoing on the pan of KG&E management. Al-though the NRC Staff was well aware of the limitations of the Q1 in-vestigative program, independent inspections regarding the adequacy of Ql's treatment of each technical safety concern concluded that each concern was properly resolved and that there were no issues that would be a restraint to a full-power operating license for the Wolf Creek Generating Station.

III. DISCUSSION The following discussion will analyze the Petitioners' bases to determine whether to take action on the Petitioners

• requests. I note that the Petitioners requested that the Wolf Creek Generating Station operating license be suspended and that prior to reinstating the operating license certain actions be taken by the NRC. Por the reasons explained in my letter dated March 23,1989, immediate suspension of the Wolf Creek operating license was not warranted. After further consideration of the Petition, and for the reasons explained below, no sufficient basis has been provided to suspend the Wolf Creek operating license. As further 550 i

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explained below, neither is there a sufficient basis to take any of the other actions  !

requested by the Petitioners.

The requests of the Petitioners are treated as follows:

1. Suspension of the Operating Licensefor Wolf Creek Generating.

Station, Burlington, Kansas The Petitioners request license suspension for alleged inadequacies in WCNOC's Q1 program. As discussed in Director's Decision DD-88-14, the Staff reviewed 100% of the Q1 files during May 1985 and found no substantial safety concerns that would be a restraint to full-power operation of the Wolf Creck Generating Station. In addition, in a separate Staff review of the 01 report, the Staff concluded that the 01 report did not raise any issues requiring further Staff actions.

The Petition does not raise any new issues regarding 01 Report No. 4 1 OCM or the substantive Staff review of Ql. The Commission does not require l licensees to implement programs with purposes similar to Ql. Furthermore, the ,

Commission does not rely on results yielded by programs like Q1 in its licensing l decisions. Derefore, in consideration of the information concerning WCNOC's  !

Q1 program provided by the Petition, the Staff finds no basis to suspend the operating license for Wolf Creek.

The Petitioners also base their request for suspenrion of WCNOC's license )

I on NRC's citation of WCNOC for various violations of NRC requirements and on the NRC's Systematic Assessment of Licensee Performance (SALP) for Wolf Creek. For the Petitioners' information, I have enclosed the Notices of Violation (Notices) and their associated cover letters regarding the 5100,000 civil penalty ]

and the violations relating to the reactor vessel O-ring seals on which the Petition is based. De Notice of Violation concerning controlling access to restricted areas that was also referenced in the Petition contains safeguards information and is not available for public disclosure.

He NRC agrees that WCNOC violated some NRC requirements, as docu-  !

mented in these Notices. The NRC issued the Notices in accordance with its regulations in 10 C.F.R. Part 2 and the General Statement of Policy and Proce-dure for NRC Enforcement Actions,10 C.F.R. Part 2, Appendix C (Enforcement Policy); the Notices explain the significance of the violations, consistent with the Enforcement Policy. In accordance with the Enforcement Policy, none of these )

violations is a basis for suspending WCNOC's license to operate Wolf Creek. i Moreover, these violations are isolated incidents and do not show a pattern of ,

inadequate management oversight of WCNOC's Quality Assurance (QA) pro- l gram. Although management at Wolf Creek has not always taken timely action to correct identified problems, as reflected by the low rating in the QA area in the SALP dated June 23,1988 (Inspection Report 50482/88-14) for Wolf i

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! I Creek and as discussed in 12.b, below, this problem, combined with the isolated violations cited. does not establish a pattern of inadequate management at Wolf Creek. Also, the Petitioners have submitted no new information relating to these concerns, and therefore, the Petitioners have not presented the NRC with facts on which to reevaluate these concerns. Accordingly, I find no basis to suspend the operating license for Wolf Creek.

a. Prior to reinstating the operating license the NRC should reopen its Offsce ofInvestigations Case No. 4-86-004 to provide sound technical reasonsfor its conclusion that this nuclear power plant is safe enough to operate in spite of all ofits investigative conclusions regarding quality assurance problems.

I will treat this as a separate request that is not dependent on granting the Petitioners' request to suspend WCNOC's license to operate Wolf Creek. As explained in 61 of this discussion, the NRC's review of the Q1 files revealed no technical reason for questioning the safety of operation at Wolf Creek. I have, nevertheless, considered the Petitioners' specific concerns.

The 01 investigation in Case No. 4-86-004 began in June 1986 and focused on the Q1 program from late August 1984 to the initial fuel-load date of December 1984. The purpose of the investigation was to determine whether )

utility management used the Q1 program in such a way as to suppress employee  ;

concerns from being fully investigated and for having appropriate corrective l actions implemented so that employee concerns would not interfere with the issuance of the Wolf Creek Generating Station operating license.

The Petition is based upon information taken from the 01 investigation. The following allegations, taken from the 01 investigation report, are being used as the bases for reopening 01 Case No. 4 86-004:

- An incident of document shredding and blackballing of a former .j inspector by Q1 management I

- Improper reorganization of Q1 management j

- Pressure on Q1 investigators to close out cases j

- Confiscation of Q1 tape recorders

- Imposition of improper limits on Q1 investigations by Q1 supervisors

- Ql's mishandling of allegations concerning falsified documents . .j

- Muzzling of Q1 investigators l

- Ql's ignoring wrongdoing

- Improper changing of Q1 investigator's conclusions by Q1 supervi-sors j

- Improper firing of Q1 investigators by management

- Conflicts of interest within Q1 -

- Ql's failure to deal with drug allegations.

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Our review of the Petition shows thx it does not disclose any new information that was not available to 01 during its preparation of Case No. 4-f,6-0CM. The bases provided by the Petitioners simply reiterate previously known information.

'Ihe Staff has known about the pmgrammatic deficiencies of the Q1 program, I i

and this knowledge is discussed in Director's Dec sion DD-88-14. l 01 Case No. 4-86-0(M considered twelve allegations received from Q1 l investigators and other employees regarding the manner in which the Q1 (

program had been conducted. Although the 01 investigation identified many l shortcomings in the Q1 program, including the bases reiterated in the Petition, the NRC concluded that no technical safety issues arose from them. OI Case 1

No. 4-86-004 concluded that (1) Q1 had not been given a mandate to close all cases before fuel load. f (2) Q1 Action Requests referred to other organizational elements were addressed before fuel load even though the verification of corrective action by Q1 was not meaningful.

(3) Q1 organizational procedures were changed to require that new items ,

discovered during an investigation be referred back to the operating I

organization rather than expand the Q1 investigation.

(4) A significant number of allegations were closed with superficialinves-Ligative effort; however, there was no evidence to suggest wholesale discarding of allegations.

(5) The practice of summarizing Q1 allegations in one or two sentences resulted in insufficient information for the Q1 investigators to use in pursuing their investigations, leading to meaningless closures of issues that merited further investigation.

(6) Q1 management had changed the investigative findings made by a Q1 reviewer and had refused to accept significant investigative findings ,

made by another investigator. l (7) There was little evidence that Q1 management had changed investi-gators' conclusions; however, there were instances in which substan-tiated allegations were listed as having no merit.

(8) Some Q1 investigators were removed from the program because of their aggressive investigations, their resistance to limiting the scope of investigations, or management's unwillingness to accept their investigative findings.

(9) Q1 procedures were changed to require that investigators remain within the parameters of the original allegation and not expand the investigation into r:ew areas.

(10) The new Q1 manager's decision to close an investigation into pipe cleanliness, an area for which he had previous responsibility, was inconsistent with the objectivity necessary in an effective and mean-ingful investigative program.

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(11) Drug allegations made to Q1 were referred to Security for action; i I

however, Security did not investigate these allegations but merely viewed them as an additional source of information.

The overall 01 investigation drew the following conclusion: "Despite sub-stantial shortcomings identified in the Q1 program, it is concluded that the evidence gathered does not substantiate wrongdoing on the part of KG&E man-  ;

agement in their conduct of this voluntary program." 'Ihe NRC Staff has in-dependently reviewed the conclusions reached by 01 and is in agreement with Ol's overall findings that the Ql program was not used to prevent the NRC Staff l from becoming aware of the Q1 allegations.

It again shculd be noted that the NRC Staff did not rely on the results of the Q1 program to make decisions related to the licensing of Wolf Creek. The Staff was fully cognizant of the content of the Q1 program based on six inspections carried out by regional and NRR personnel before licensing between September 25,1984, and Mey 31,1985. The Staff concluded that no technical safety issue arose from the Q1 program's shortcomings. Morcour, the NRC's decision to license the Wolf Creek plant was based on the Staff's normal program of independent inspections and licensing reviews, including those of the Licensce's quality assurance program required by Appendix B, not the separate Q1 program.

I reiterate that Q1 is a voluntary program run by the Licensee, is not required by NRC regulations, and does not serve the purpose of demonstrating compliance with Appendix B to 10 C.F.R. Part 50," Quality Assurance Criteria i for Nuclear Power Plants and Fuel Reprocessing Plants." Tne deficiencies that OI identified in the Q1 program in no way constituted violations of Appendix B. Moreover, with the exception of the violation discussed above, for which the NRC has already taken enforcement action by imposing a civil penalty, the Licensee's Quality Assurance organization has properly implemented Appendix B. The NRC Staff's review of the Licensee's Quality Assurance program is included in the Wolf Creek Safety Evaluation Report (NUREG-0881). Finally, and as stated above, in May 1985 the NRC comprehensively inspected the l Q1 program. I repeat that this inspection found that the Licensce's Quality Assurance and other appropriate organizations had properly resolved, pursuant to the strict requirements of Appendix B, the concerns relating to plant quality referred to them by Q1.

In summary, a review by the Staff supports the conclusions made by the j 01 report. Considering that the Petition does not offer any new information ce j additional insights into the available data, the Staff sees no basis for reopening 01 Case No. 4-86-0N.  ;

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b. " Prior to reinstating the operating license the NRC should review a'l of l its information on quality assurance at Wolf Creek developed subsequent to the issuance of Case No. 4-86-004 and covering operations at Wolf Creek through 1989 to provide sound technical reasonsfor its conclusion that this nuclear power plant is safe enough to operate."

NRC has in place a program to periodically monitor and assess available licensee performance information in selected functional areas. The Systematic l Assessment of Licensee Performance (SALP) program is an integrated NRC j Staff effort to collect available observations and data on a periodic basis and to evaluate licensee performance based upon this information. The SALP is designed to provide a rational basis for allocating NRC resources and to provide meartingful guidance to the licensce's management to promote the quality and safety of plant operation. Additional information regarding NRC's SALP program, including areas of review, evaluation criteria, and performance categories, is discussed in the enclosed (not published) NRC Manual Chapter I

0516," Systematic Assessment of Licensee Performance."

S ALP reviews at the Wolf Creek Generating Station have been ongoing since August 1981, The Petition refers to the SALP performed at Wolf Creek for the period between March 1,1987, and March 31,1988. That document provides the Staff's assessment of both the Licensee's quality assurance and operations l programs for that period. The following discussion was taken fmm that SALP report:  ;

Quality Programs and Administrative Controls Afecting Quality he assessment of this area includes all management controt, verificadon and oversight j activities which affea or assure the quality of plant activides, structures, systems, and components. %is area may be viewed as a comprehensive management system for i controlling the quality of veri 6 cation activities that confirm that the work was performed correctly. The evaluation of the effectiveness of the quality assurana system is based on the resuhs of management actions to ensure that necessary people, procedures, facilities, and materials are provided and used during the operation of the nuclear power plant. Principal emphasis is given to evaluation of the effecdveness and involvement of management in establishing and assuring the effective implemmtation rf the qua'ity assurance program along with evaluadon of the history ofliansee performana in the key areas of: comminee adivities, design and procurement control, mntrol of design change processes, inspecdons, audits, correcdve maion systems, and records.

Conclusions The assessment of this functional area indicates that management has not been effective in timely resoludon of important issues. Corporate management oversight of plant acdvities does not always ensure adequate involvement of the quality and engineering organizations in plant operaticms. When problems are identified by the quality and engineering organizadons they are not always acted upon in a timely manner.

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ne licensee is considered to be in Performance Category 3 for an overa!! rating of the SALP area of quality programs and administrative controls affecting quality.

Plant Operations he assessment of this area consists chiefly of the activities of the Licensce's operational Staff (e.g., licensed operators and nuclear staden operators). It is intended to be limited to operating acdvities such as: plart startup, power operadon, plant shutdown, and system lineups. Thus, it includes activities such as readmg and logging plant conditions, respondmg to off. normal conditions, manipulating the reactor and auailiary controls, plant-wide house-Leeping, arui control room professionalism.

Conclusiorr he overall assessment of this area indicates that improvements teed to be made. As stated in the previous SALP report, licensee attention to detail in this area can be improved, he use of procedures in operations was noted to improve; however, this occurred only after the situation had been allowed to deteriorate to an unacceptable icvel.

He examples of inattention to detail and the lack of effeaive operadons interface with other departments reflect an ineffective management oversight in this functional area.

Staffing in this area is considered a strength. along with good control room professionalism during power operadons.

The liccsisec is considered to be in Performanz Category 2 in this area, with a declining trend.

A trending of SALP results for these two functional areas' subsequent to the issuance of 01 Case No. 4-86-004 is as follows:

Performance Period (10/2/84- (2/1/86- (3/1/87-Functional Area 1/31/86) 2/28/8) 3/31/88)

Quality programs and adininistrative controls affecting quality 1 2 3 Plant operations 2 2 2 4 11 should he noted that f.anctional areas have been adefined pursuant to NRC Manual Osapter 0516, revised June 6,1988, titled,"sysiernatic Assesarnant of Licensee Performance." Cannequently, the reung tabulated above for the funcuanal area Quahty Prograrns and Administrauen Controls Affccung Quahty socs not cormlate directly with the Staff's most scent SAlf mpon which covered the period between April 1,1988, and March 31,1989.

The Staff's most recent SALP repon, dated June 2,1989, does not comradict any of the fmdmgs made in this Dutctor's Decismrt in this nest nwent report the Staff found the overall performance at the Wolf Creek Generaung Stat on to be satisfactory with an overall improvmg trund.

556 e

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t As previously discussed, the above Wolf Creek SALP ratings are not the most desirable but are acceptable in terms of allowing continued operation cf l the facility. The Petition cites the SALP, violations of NRC requirements, and the Q1 program as bases for the NRC to review all its information on the Wolf Creek QA program. As discussed in i1 of this discussion, the Petition presents no new information on these subjects. Therefore, the Staff finds no basis to initiate new reviews to justify continued operations.

c. " Prior to reinstating the operating license all corrective actions determined by NRC to be necessary to achieve a level of operating j safety that complies with federal regulations should be incorporated as conditions of the operating license and if they are not met the operating  ;

license should be revoked." {

In consideration of the information provided in the Petition, and as discussed )

in 61, above, the Staff does not find a basis to impose corrective actions on

]j the Licensee. Existing applicaNe regulations, enforceable to the same extent as license conditions, already require the identification and correction of conditions adverse to quality. Therefore, imposing license conditions to require actions already required by regulation would be meaningless,

d. " Prior to reinstating the operating license that thefollowing persons whose activities were detailed in Mr. Gryfm's report of Case No. 4-86-004 so as to show theirfailwe to safeguard the integrity of Wolf Creek quality assurance programs and their lack of competence to identVy and resolve real safety concerns, be barredfrom any and all involvement or participation in activities at Wolf Creek Generating Station whether as a salaried employee, a contract employee, a consultant, a volunteer, a management or any other position:

(i) William Rudolph (ii) Glenn Koester (iii) Robert L. Scott (iv) Charles Snyder (v) any other individual who the NRC determines has prevented Wolf Creek Generating Station from complying with federal quality as-surance regulations in a culpable manner."

The conclusion of O! Case No. 4-86-004 states that "the evidence gathered does not substantiate wrongdoing on the part of KG&E management in their conduct of this voluntary program." The NRC's technical staff review of the O!

report supported this conclusion. Considering that the Petition does not provide 557

1 any new information to the Staff, the Staff does not find a basis to prohibit the named individuals from licensed activities at the Wolf Creek Generating Station.

Moreover, no information has been presented identifying any other individuals who have prevented Wolf Creek Generating Station from complying with NRC regulations.

IV. CONCLUSION The institution of proceedings pursuant to 10 C.F.R. 2.202 is appropriate only. .

where substantial health and safety issues have been raised (see Consolidated Edison Co. ofNew York (Indian Point, Units 1,2, and 3), CL1-75-8,2 NRC 173, 175 (1975); Washington Public Power System (WPPSS Nuclear Project No. 2),

DD-84-7,19 NRC 899,924 (1984)). This is the standard that I have applied to the concerns raised by the Petitioners in this decision to determine whether enforcement action is warranted.

Ibr the reasons discussed above, I find no basis for taking the actions

~

requested by the Petitioners; Rather, based on the NRC Staff's inspections relating to the concerns raised in the Petition and its subsequent evaluation of those inspections, I conclude that no substantial health and safety issues have been raised by the Petitioners. Accordingly, the Petitioners' requests for action pursuant to 10 C.F.R. 62.206 are denied as described in.this Decision. As provided by 10 C.F.R. 62.206(c), a copy of this Decision will be filed with the Secretary of the Commission for the Commission's review.

FOR THE NUCLEAR REGULATORY COMMISSION Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 26th day of June 1989.

Enclosures:

8 (1) Letter from R.~ Martin, USNRC, to B. Withers, WCNOC, dated March 17, 1988; (2) Letter from L Callan, USNRC, to B. Withers, WCNOC, dated March 7,1988; (3) USNRC Manual Chapter 0516, " Systematic Assessment of Licensee Performance."

5 The enclosures consist of previously daicted information and am only bema forwarded to the addressee, Kansas Chapter sierre Club.

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