ML20214J576

Brief in Opposition to Intervenor Appeal,Brief & Proposed Findings Re Board Decisions.Certificate of Svc Encl

ML20214J576
Person / Time
Site:	Vogtle
Issue date:	11/26/1986
From:	Bordenick B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#486-1688 OL, NUDOCS 8612010355
Download: ML20214J576 (53)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .g g 2g P7 :03 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAfsBOARD 02 .

In the Matter of )

)

GEOP.GIA POWER COMPANY ) Docket Nos. 50-424 et al.

-- ) 50-425

) (OL)

(Vogtle Electric Generating Plant, )

Units 1 and 2) )

NRC STAFF BRIEF IN OPPOSITION TO INTERVFNOR'S

" APPEAL, BRIEF AND PROPOSED FINDINGS CONCERNING LICENSING DOARD DECISIONS" i

Bernard M. Bordenick

& Counsel for NRC Staff

(

I November 26, 1986 l

I 9612010355 861126 A PDR ADOCK 0500 4 g

UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD u

In the Matter of )

)

GEOPGIA POWER COMPANY ) Docket Nos. 50-424 et al. ) 50-425

) (OL)

(Vogtle Electric Generating Plant, )

Units 1 and 2) )

NRC STAFF BRIET IN OPPOSITION TO INTERVFNOR'S

" APPEAL, BRIEF AND PROPOSED FINDINGS CONCERNING LICENSING DOARD DECISIONS" l

l y Bernard M. Bordenick l

Counsel for NRC Staff November 26, 1986 l

l l

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . iii

' 1 INTROD U CTION . . . . . . . . . . . . . . . . . . . . . .

BACKGROUND....................... 2 ARGUMENT ........................ 6 I. General Matters ................. 6 II. The I.icensing Board Properly Rejected Contentions 1-6, 9, 10.2, 10.6 and 10.9 ..... 8 A. Requirements for Contentions ....... 8 B. Contention 1 . . . . . . . . . . . . . . . . 10 C. Contention 2 . . . . . . . . . . . . . . . . 11 D. Contention 3 . . . . . . . . . . . . . . . . 12 E. Contention 4 . . . . . . . . . . . . . . . . 13 F. Contention 5 . . . . . . . . . . . . . . . . 14

0. Contention 6 . . . . . . . . . . . . . . . . 17 H. Contention D . . . . . . . . . . . . . . . . 16 I. Contention 10 ............... 20

1. Subcontention 10.2 .......... 20

2. Subcontention 10.6 .......... 21

3. Subcontention 10.9 .......... 24 III. The Licensing Board Properly Granted

. Summary Disposition of Contentions 8, l 10.3,10.7,11,13 (later Offsite emergency l planning contentiens) and 14 . . . . . . . . . . . 25 l W A. The Use of Summary Disposition . . . . . . . 25 B. Contention 8 . . . . . . . . . . . . . . . . . 27 C. Subcontention 10. 3 . . . . . . . . . . . . . . 32 I

D. Subcontention 10.7 . . . . . . . . . . . . . . 34 l

i I

. PAGE E. Contention 11 . . . . . . . . . . . . . . . . 38 F. Cont ention 13 . . . . . . . . . . . . . . . . 40

, G. Contention 14 . . . . . . . . . . . . . . . . 41 IV. The Licensing Board Did Not Err in Its Conclusion on Contention 7 That There is Reasonable Assurance That Groundwater Will Not Be Contaminated by an Accidental Spill at Vogtle . . . . . . . . . . 45 CON CLUS ION . . . . . . . . . . . . . . . . . . . . . . . . 50 l

e

, - . ,_.-..4. - - - , . . _ . . . . . - . , . . . , . , , , , , - . ,_ . __,7,,,

I,, , _ _ , , , , . _ .

I

- 111 -

. TABLE OF AUTHORITIES PAGE(S)

COURT CASES Oystershell Alliance v. NRC, 85-1182.

(D.C. Cir. , September 9,1936) . ............ 23 Three Mile Island Alert, Inc. v. NRC, 771 F.2d. 720, 732 (3rd Cir. ,1985) cert. den.sub nom. , Aamodt v. NRC, US , 1986 . . . . . . . . . . . . . . . . . . . . 23 NRC CASES Carolina Power a Light Co. (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC

, Slip Op. , October 31, 1986 . . . . . . . . . . . . 7 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691,16 NRC 897 (1982) . ........ 26 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785 (1985) . .... 6, 7, 48 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59 (1985) ..... 7, 19, 22 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, l reconsideration denied, ALAB-359, l 4 NRC 619 (1976) . .................. 7, 14 Duquesne Light Co. (Beaver Valley Power

! Station, Unit 1), ALAB-109, 6 AEC 243 (1973) . .... 12, 18 Georgia Power Company, et al. (Vogtle Electric Generating Plant, Units 1 and 2), LBP ,

24 NRC (Slip Op., August 29, 1986) . ....... passim

, Georgia Power Company, et al. (Vogtle Electric Generating Plant, Units 1 and 2), LBP-84-35, 20 NRC 887 (1984) ......... passim

! Gulf States Utilities Co. (River Bend

! Station, Units 1 and 2), ALAB-444,

! 6 NRC 760 (1977) . ................... 17, 24 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 NRC 246 (1975) . ................... 31 l

- iv -

PAGE(S)

Houston Lighting a Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360 (1985) . .. . ............... 19, 22, 26 Houston Lighting & Power Co. (Allens Crook Nuclear Generating Station), ALAB-629, 13 NRC 75 (1981) . . . . . ............... 26, 31-32 Kansas City Gas and Electric Co. (Wolf Creek Generating Station, Unit 1),

ALAB-279,1 NRC 559 (1975) . ............. 11 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

CLI-85-2, 21 NRC 282 (1985) . . . ........... 23 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756,18 NRC 1340 (1983) . ........ 30 Pacific Gas and Electric Co. (Diablo ,

Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598,11 NRC 876 (1960) ......... 23 Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693,16 NRC 952 (1982) . . .......... 7 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),

CLI-85-15, 22 NRC 184 (1985) . . ............ 9, 17 i Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC ,

f (Slip. Op. , August 28, 1986) . . ............ O, 17 I

Philadelphia Electric Co. (Peach Bottom

Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13 (1974) ............... 8 Public Service Electric and Gas Co.

. (Salem Nuclear Generating Station, Unit 1), ALAB-650,14 NRC 43 (1981) . ......... 6, 35, 38, 43, 48 v

l Union Electric Co. (Callaway Plant, j Unit 1), ALAB-740,18 NRC 343 (1983) ......... 7, 30 Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451 (1980) .. . .. .............. 26, 31 I

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_ y.

l PAGE(S)

REGULATIONS 10 CFR I 2.714(b) . . . . . . . . . . . . . . . . . . . . . . 11

= 10 CFR I 2.734 . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 24 10 CFR 5 2.749 . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 29 10 CFR S 2.751(a) . . . . . . . . . . . . . . . . . . . . . . 19, 22 10 C FR I 2 . 75 4 . . . . . . . . . . . . . . . . . . . . . . . 4 10 CFR 9 2.762(d) . . . . . . . . . . . . . . . . . . . . . . 6, 7, 35, 38, 41, 48 10 CFR Part 50, Appendix A . . . . . . . . . . . . . . . . 42, 45 10 CFR Part 50, Appendix B . . . . . . . . . . . . . . . . 29 MISCELLANEOUS Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452 (1981) . . . . . . . 25 Statement of Consideration on Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19535 (1986) . . . . . . . . . 22 NUREG-1216, " Safety Evaluation Report Related to the Operability and Feliability of Emergency Diesel Generators Manufactured by Transamerica Delaval, Inc.", August 1986 . . . . . . 44 UNPUBLISHED APPEAL BOARD ORDERS Georgia Power Company, et al. (Vogtle Electric Generating Plant, Units 1 and 2),

Memorandum and Order, October 27, 1986 . . . . . . . . 1 Georgia Power Company, et al. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-851, y Memorandum and Order, October 16, 1986 . . . . . . . . 1 4 e

. . , . . _ _. _. m. _ ._

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

+

In the Matter of )

)

GEORGIA POWER COMPANY ) Docket Nos. 50-424 et al. ) 50-425

) (OL)

(Vogtle Electric Generating Plant, )

Units 1 and 2) )

NRC STAFF BRIEF IN OPPOSITION TO INTERVENOR'S

" APPEAL, BRIEF AND PROPOSED FINDINGS CONCERNING LICENSING BOARD DECISIONS" INTRODUCTION On August 29, 1986, the Atomic Safety and Licensing Board issued a Partial Initial Decision (PID) 1_/ in this operating license proceeding. On October 10, 1986, Intervenor Georgians Against Nuclear Energy (GANE) filed a notice of appeal - and a brief in support of its appeal. 3,/ In this appeal GANE maintains that the Licensing Board improperly rejected 1/ LDP , 24 NRC (1986) (Slip op.).

-2/ See October 27, 1986, " Memorandum and Order" issued by this Atomic Safety and Licensing Appeal Board at 3 regarding the date of

- service of the Notice of Appeal.

-3/ The Notice of Appeal of former Joint Intervenor Campaign for a

• Prosperous Georgia was dismissed by this Atomic Safety and Licensing Appeal Board. See " Memorandum and Order" dated October 16, 1986. In general, except as regards the evidentiary hearings on Contention 7, all actions taken, or not taken, by Appellant were as a joint intervenor with Campaign for a Prosperous Georgia (CPG).

i

GANE's proffered contentions 1-6, 9,10.2,10.6, and 10.9; b improperly

, granted summary disposition of GANE's contentions 8, 10.3, 10.7, 11, 13 and 14; - and improperly decided GANE's contention 7 in the PID after hearing, b The NRC staff (Staff) files this brief in opposition to GANE's appeal. U BACKGROUND A notice of opportunity for hearing on the Vogtle Electric Generating Plant's operating license was published on December 28, 1983.

LBP-84-35, 20 NRC at 888. A petition to intervene was filed by the Appellant GANE, among others. d. A prehearing conference was held on May 30, 1984. The Licensing Board then ruled on proffered contentions. GANE's admitted contentions were: Contention 7 (alleging a lack of assurance that a spill of radioactive water onsite would not result in contamination of the aquifers underlying the site); Contention 8 (alleging a failure to enforce a quality assurance (QA) program in the construction of the facility that provides adequately for the safe 4/ See LBP-84-35, 20 NRC 887 (1984).

~5/

See Memoranda and Orders dated October 3, 1985 and December 3, BT5 (ruling on contention 8); Memoradum and Order dated August 21,1985 (ruling on contention 10.3); Memorandum and Order dated November 5, 1985 (ruling on contention 10.7); Memorandum and Order dated September 3, 1985 (ruling on contention 11);

Memorandum and Order dated July 17,1986 (the final order on the subject of contention 13 - emergency planning); and Memorandum and Order dated November 25,1985 (ruling on contention 14).

6_/ See n.1. -

-7/ The subject of each of these contentions is identified in the Staff's discussion of each of them.

functioning of diverse structures, systems and components); Conten-tion 10.1 (alleging that Applicants h6ve failed to assure that certain polymer materials, to be employed in components of Vogtle that perform safety related functions, are environmentally qualified); Contention 10.3 (alleging a lack of assurance that the environmental qualification of single conductor cables is representative of multiconductor performance);

Contention 10.5 (alleging that Applicants have failed to assure that certain models of solenoid valves that are used to perform safety related functions at Vogtle are environmentally qualified); Contention 10.7 (alleging that Applicants have not properly qualified hydrogen recombiners and their transducers and sensors); Contention 11 (alleging that Applicants have failed to consider vibration induced fatigue cracking and bubble collapse induced water hammer in the Vogtle steam generators); Contention 12 (alleging that Applicants have not properly assessed the amount of salt and chlorine gas release from the cooling towers and the extent of consequent adverse agriculture and environmental damage); and Contention 14 (alleging that there is no i

reasonable assurance that the emergency diesel generators manufactured by Transamerica Delaval. Inc. , to be used at Vogtle, will be adequate).

i By agreement of the parties, a ruling on GANE contention 13 involving emergency planning was deferred. 20 NRC at 910. b GANE's other contentionE Were rejected. LBP-84-35, 20 NRC 889-916.

o

~F

-8/ Summary disposition of all offsite emergency planning contentions admitted by an order dated August 12, 1985, was later granted.

See Memoradum and Order of July 17, 1986.

i l

l

After discovery the Applicants filed motions for summary disposition of the nine admitted contentions. These motions were supported by the Staff. Intervenors only filed responses to the motions concerning Contentions 7 and 8. The Licensing Board granted summary disposition of all of the Applicants' motions except those involving Contentions 7, 10.1 and 10.5. -I rhe matters to be litigated as to each of the contentions admitted for litigation were identified in the Licensing Board's Memorands and Orders ruling on the motions for summary disposition b Hearings on Contentions 7, 10.1 and 10.5, commenced on March 11, 1986 in Waynesboro, Georgia and continued through March 14, 1986.

Applicants e.nd Staff presented witnesses who testified on each of the contentions and cross-examined GANE's witnesses. GANE presented witnesses and cross-examined on Contentions 7 and 10.5 but not on Con-tention 10.1. b At the conclusion of the hearings the Board directed that the parties file proposed findings of fact and conclusions of law in accordance with the schedule set forth in 10 C.F.R. I 2.754. Filings

-9/

The Licensing Board's unpublished Memoranda and Orders granting the motions are dated as follows: Contention 8, October 3, 1985, reconsideration denied, December 3, 1985; Contention 10.3, August 21, 1985; Contention 10.7, November 5,1985; Contention 11, September 3, 1985; Contention 12, December 24, 1985; and Conten-

- tion 14, November 25, 1985. Each is fully discussed below.

-10/ The unpublished Memoranda and Orders ruling on these motions are

• dated as follows: Contention 7, November 18, 1985, reconsideration denied , January 8, 1986 and Contention 10.1, January 23, 1986, partial reconsideration granted, February 14, 1986.

-11/ A list of the witnesses who testified at the hearing on Contentions 7 and 10.1 is attached to the PID as an appendix.

i were made by Applicants and Staff as directed. GANE submitted timely

, proposed findings only on Contention 7.

In the interim, the Licensing Board had admitted eight contentions dealing with emergency planning in lieu of contention 13. EI The Licensing Board disposed of two of these emergency planning contentions by summary disposition before the hearing. El Subsequent to the March hearing, summary disposition was granted on the remaining emergency planning contentions -- the last motion being granted on July 17, 1986. EI Each of the motions for summary disposition of the emergency planning contentions was supported by the Staff and was unopposed by Intervenors.

As a result of the disposition of all of the emergency planning contentions, there was nothing left for the Board to adjudicate in this proceeding beyond the issues litigated in March. By notice to the parties dated August 5, 1986, the Licensing Board advised: (1) that it i

considered the entire record closed and (2) that an initial decision would

! be issued, not a partial initial decision as the Licensing Board envisioned at the close of the hearings. Appellant has not directly appealed the 12/ Memorandum and Order of July 12, 1985.

-13/ The unpublished Memoranda and Orders ruling on these motions are dated as follows: Contention EP-6, February 3,1986 and Contention EP-7, August 12, 1985, reconsideration denied, October 1, ~1985, refiled motion granted, March 6,1986.

-14/ The unpublished Memoranda and Orders ruling on these motions are dated as follows: EP-1/EP-1(a)/EP-2(b), May 12, 1986; EP-2 /EP-2(a) , May 15, 1986; EP-2 /EP-2(c) , May 22, 1986; EP-2/EP-2(h), May 5, 1986; E P-4 , April 29, 1986; and E P-5, July 17,1986.

Board's grant of summary disposition of the admitted Emergency Planning (EP) Contentions. However, the Licensing Board's summary disposition of the EP contentions is related to the disposition of Contention 13 which Appellant does appeal.

On August 25, 1986, the NRC Staff issued a Board Notification R egarding Asco Solenoid Valves For Vogtle Units 1 And 2 (Board Notification No. 86-18). This notification caused the Licensing Board to defer ruling on Contention 10.5. On August 29, 1980, the Licensing Board issued the partial initial decision on Contentions 7 and 10.2.

Contention 10.5 is still pending before the Licensing Board and is the only issue not yet decided in this proceeding. b ,

ARGUMENT I. General Matters Briefs which are filed by Appellants before this agency "must clearly identify the errors of fact or law that are subject to appeal [and for]

each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided." 10 C.F.R.

I 2.762(d)(1); see Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAD-650,14 NBC 431 (1981); Duke Power Co. (Catawba Nuclear Station, Units I a 2), ALAB-825, 22 NRC 785, 793

. (1985). Thus, an appellant bringing matters to an Appeal Board has a l

=

-15/ By Memorandum and Order dated November 6, 1986, the Licensing Board reopened the record on a limited basis to consider certain information provided by Applicants in response to a request by the Board. The November 6 Order also provides the other parties with an opportunity to respond to the information provided by Applicants.

duty to set forth purported errors with specificity. Broad allegations

. without record citation, such as "[p]rocedural improprieties abound in the Licensing Board's action during this proceeding" (Appellant's brief at 1),

m do not raise any issue requiring consideration upon appeal. See Carolina Power & Light Co. S hearon Harris Nuclear Power Plant) .

ALAB-852, 24 NRC , slip op, at 4-5 (October 31, 1986); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 793 (1985). As stated in Shearon Harris, a failure to adequately brief an issue on appeal "is tantamount to [its] ab andonment. " Citing Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 307, 413 reconsideration denfad, ALAB-359, 4 NRC 619 (1976);

accord Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-093,16 NRC 952, 956-57 (1982).

Similarly, claims of error in appellate briefs which are merely supported by references to previously filed pleadings do not comply with 10 C.F.R. I 2.762, and do not provide a basis for appellate review.

Duke Power Co. (Catawbs Nuclear Station , Units 1 & 2), A LAB-813, 22 NRC 59, 71 (1985); Union Electric Co. (Callaway Plant , Unit 1),

ALAB-740,18 NRC 343, 348 n.7 (1983).

Although the Staff did not join in Applicants' motion to strike the brief as a whole , b appeal from most of the contentions listed in Intervenor's appeal should be summarily rejected for failure to properly comply with 10 C.F.R. 5 2.762, and for failure to inform the Appeal 16/ See Memorandum and Order, October 27,1986 (unpublished) denying Applicants' Motion to the Appeal Board to strike GANE's appeal brief for procedural defects.

Board or the other parties of the bases and the grounds for the matters appealed. See eg Intervenor's arguments on Contentions 1, 3, 6, 10.2, 13 and 14.

The Intervenor's clains are generally that the Board improperly rejected contentions, improperly granted summary disposition and 1

improperly decided Contention 7 after hearing. The Staff has structured its brief around each of those claims , and addresses each of the contentions under those major claims.

II. The Licensing Board Properly Rejected Contentions 1-6, 9, 10.2, 10.6 and 10.9 A. Requirements for Contentions The Commission's Rules of Practice, 10 C.F.R. I 2.714(b) require that a petitioner set forth the " bases" for cach contention it seeks to i

have litigated with " reasonable specificity" . In a leading case interpreting this Rule , Philadelphia Electric Co. (Peach Bottom Atomic Povrer Station, Units 2 and 3), A LA B-216, 8 AEC 13, 20-21 (1974), the Appeal Board set out the reasons for this requirement, stating:

A purpose of the basis-for-contention requirement in Section 2.714 is to help assure at the pleading stage that the hearing process is not improperly invoked.

For example , a Itcensing proceeding before this agency is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commission's regulatory process. Another purpose is to help assure that other parties are sufficiently put on notice so that they will know at least generally what they will have

, to defend against or oppose. Still another purpose is to assure that the proposed issues are proper for adjudication in the particular proceeding. In the final analysis , there must ultimately be strict observance of the requirements governing interven-tion , in order that the adjudicatory process is invoked only by those persons who have real interest

4 at stnke and who seek resolution of concrete issues.

>The fact that a contention may be adequate for purposes of Section 2.714 does not mean that it necessarily gives rise to a genuine issue which must be heard -- such a contention is subject to being summarily rejected on the merits under the provisions of Section 2.749 of the Commission's Rules of Practice.

At the very least, for purposes of intervention a petition must be adequate to show that it applies to the facility at bar and that there has been sufficient foundation assigned for it to warrant further exploration. . . . [ Footnotes omitted]

See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CL1-85-15, 22 NRC 184,187 (1985); Id. , ALAB-845, 24 NRC (slip op. 7-8, August 23, 1986).

Thus, for a contention to be admissible it must:

1) Be specific enough to put other parties on notice of what will be litigated;

2) Be proper for adjudication in the proceeding;

3) De capable of resolving concrete issues;

4) Be applicable to the facility at bar;

5) Have a sufficient foundation to warrant further exploration; and

6) Not be a vehicle for an attack on applicable statutory require-ments or the structure of the Commission's regulatory process.

As we show in each of the succeeding sections of this brief, the Inter-venor's rejected contentions fell afoul of these requirements.

B. Contention 1

, This contention asserted that:

Applicant has not adequately nor correctly assessed the potential release of radionuclides from Plant Vogtle during normal, transient, and accident condi-tions, nor the somatic, teratogenic and genetic effects of the ionizing radiation. Applicant thus fails to meet

l i

the requirements of 10 C.F.R. 50.34, 50.36, 20.103, 20.203 and Appendix I of Part 50, and, further,

, underestimates the human cost of the project in the cost-benefit analysis required by 10 C.F.R. 51.21, 51.20(b) and (c) and 52.23(a).

Appellant generally argues that the Licensing Board dismissed this contention on the ground that Appellant failed to prove the contention and that the burden is on Applicants to prove that they have met the regulatory requirements cited in the contention. Brief at 2-3. However, an examination of the Licensing Board's " Memorandum and Order on Special Prehearing Conference Held Pursuant to 10 C.F.R. 2.715a", shows that the contention was dismissed because the Licensing Board could not discern a basis for the contention. 20 NRC at 911-12. Specifically, the Licensing Board ruled that the assertions contained in the contention failed to inform the Board and parties as to the basis of Appellant's belief that the estimates of releases at Vogtle had not been adequately or correctly assessed. Id.

Further, although the Licensing Doard provided Appellant's repre-

! sentatives with an opportunity to shore up the contention by an oral l

presentation, GANE only responded by stating that it Isched the engineering and scientific expertise to really assess the data in the Applicants' Final Safety Analysis Report , but that it "just seems that there are [ radiation] levels that are in question. " Tr. at 100-101.

Plainly the Board correctly concluded that the contention lacked the specificity required by 10 C.F.R. 2.714(b) and did not put other parties on notice as to what they had to defend against. 20 NRC 912-13. See Kansas City Gas and Electric Co. (Wolf Creek Generating Station ,

l Unit 1), ALAB-279,1 NRC 559, 576 (1975).

l

C. Contention 2 This contention asserted that:

Applicant has failed to assess the environmental and public health effects of the addition of Plant Vogtle within 20 miles of the [ Savannah River Plant] and to quantify this fact in its consideration in violation of 10 C.F.R. 20.103, 50.34(a)(4), 51.21, 51.23(b),104, 105,106 and 201.

Appellant argues that the Licensing Board, in rejecting admission of this contention, ignored the basis of the contention which was the

" addition of Plant Vogtle to an already existing problem of concentration of radioactive materials." Brief at 3.

As noted by the Licensing Board, 20 NRC at 914, Appellant had filed a purported amplification to its bases in support of Contention 2 subsequent to the May 30, 1984 Special Prehearing Conference. (Appel-lant's untitled filing of June 13, 1984). Appellant's filing consisted primarily of a discussion of radioactive releases from the Savannah River Plant (SRP) facilities and groundwater contamination resulting from SRP releases. Appellant did not address, except in vague and general terms,

the incremental impact of Vogtle on radiological releases. 20 NRC at 914.

Nor did Appellant's filing attempt to show how or why the assessment of SRP releases contained in the Vogtle FSAR was in error or needed to be reexamined. Id. Thus, GANE had failed to provide any basis for this contention concerning the alleged failure to consider the addition of radioactive releases from Vogtle to those of the SRP.

= Further, as the Licensing Board noted, Appellant's primary concern was with the radioactive releases and environmental contamination resulting from the operation of the L-reactor and other facilities at the SRP. 20 NRC at 914. The Licensing Board correctly ruled that the NRC

has no responsibility.or authority over the SRP, and that this agency and the Board had no jurisdiction over Department of Energy facilities. d.

The Licensing Board correctly rejected Contention 2 for litigation in this proceeding as lacking basis and not being concerned with the plant at bar. See Duquesne Light Co. (Beaver Valley Power Station, Unit No.1), ALAB-109, 6 AEC 243, 246 (1973).

D. Contention 3 This proposed contention asserted that:

Applicant fails to show that the fear caused by living

adjacent to a nuclear facility will not threaten the security and well-being of the community, in violation of various laws and rules and regulations.

On appeal from the Licensing Board's exclusion of Contention 3, Appe!! ant states that the Licensing Board claimed it could not " consider this issue under requirements imposed on it from above." Brief at 4.

Appellant goes on to state that "[I]f this is the case, Intervenor is similarly constrained and does not appeal this dismissal (though the .

Intervenor strongly disagrees with it)". Id. An examination of the Licensing Board's Order shows that the Licensing Board was clearly justified in ruling that proposed Contention 3, concerning fears which Vogtle would allegedly cause, did not present that Board with a matter that it could consider. 20 NRC at 915. The Board noted that:

The Commission in 1982 instructed Licensing Board's

- not to entertain psychological stress contentions absent evidence of a " unique and traumatic" nuclear accident in the vicinity of the plant. Consideration

• of Psychological Stress issues; Policy Statement, 47 Fed. Reg. 31762 (1982). There is no allegation that there has been a " unique and traumatic" nuclear acci-dent in the vicinity of Vogtle. The rule prohibits consideration of the proposed contention.

l

Itfore recently, the U.S. Supreme Court, in Metro-politen Edison Company v. People Against Nuclear Energy, -U.S. ,102 S. Ct.1556 (1983) held that the National Environmental Policy Act does not require the Nuclear Regulatory Commission to consider whether risk of accident might cause harm to psychological health and community well-being of residents of the surrounding area, in deciding whether to permit a company to resume operations. The case held that NEPA must address environmental effects of federal action; and the effects must have a close connection to the physical environment, which stress, a psychological condition, does not meet. Id.

The Licensing Board's rejection of Contention 3 should be affirmed.

E. Contention 4 This proposed contention asserted that:

The Applicant has underestimated the danger to lives and health of human, livestock and plants exposed to the electromagnetic radiation of the proposed 500 KV transmission lines from plant Vogtle in violation of 10 C.F.R. 51.20 and 51.21 and the National Environ-mental Policy Act of 1969, 42 U.S.C. 4321 et seq.

The Licensing Board dismissed this contention on the ground that the proposed basis for this contention was inadequate. 20 NRC at 915-16. Appellant argues that this is " preposterous" in that it provided extensive documentation of its concern in this area and, that the Licensing Board's dismissal of the contention "is apparently the result of l a predetermination with no real consideration of Intervenor's information."

Brief at 4.

The Licensing Board recognized Appellant cited several authorities

. for the proposition that non-ionizing electromagnetic radiation from high-voltage transmission lines would be injurious to health in support of this contention. 20 NIIC 915-16. However, the Licensing Board concluded that the information provided by the Applicants demonstrated that none of l

the authorities relied on by Appellant actually provided support for l

Contention 4. Id. Appellant made no attempt to relate how the anecdotes it recounted relate to the Vogtle transmission lines. 20 NRC at 916. The Appellant sets out no information upon appeal to show the Board's conclusion was wrong. Thus no basis is presented to reverse the Licensing Board's rejection of this contention. See Duke Power Co.,

ALAB-355, 4 NRC at 397.

F. Contention 5 Appellant's proposed Contention 5 asserted that:

The Applicant has not properly assessed the geology of the site and has not properly considered the geology of the site in the engineering design of the project, especially in light of new data made available by the U.S. Geological Survey. This violates NRC rules on seismic standards described in 10 C.F.R. Part 100, Appendix A.

Appellant argues that the Licensing Board erroneously denied the admission of Contention 5 on the ground that the basis set forth by GANE for the contention (the possible capability of the Millett fault) was only speculative. Brief at 4-6. It maintains that the speculative nature of the fault , as well as a failure to identify the source of the Charleston earthquake, should have required admission of the contention and further Board inquiry. Id.

The Appellant fails to set out the full reasons for the Board's

. rejection of Contention 5. In its Order of September 5,1984, the Board found that "GANE offered no support for its allegations that the Millett fault exists, is capable and should be considered." 20 NRC at 986. The Board then rejected the Millett Fault as a basis for Contention 5 on the ground that "no adequate basis for its inclusion has been provided." Id.

l

GANE in its brief before this Board cites nothing to show that the

- postulated Millett fault existed or was capable. The Licensing Board correctly concluded that the postulation of the fault, without a showing of a basis for believing the fault existed or was capable, did not provide the basis for a contention. Id.

The Board, however, did not then dismiss the whole contention because there were still open pieces of information (Board Notification 82-112A, December 12, 1982; and NUREG/CR-3756) which might be considered relevant to the seismic design of the Vogtle Plant. 20 NRC 896-97 At the Staff's suggestion the Licensing Board deferred ruling on the contention until the Staff's Safety Evaluation Report (SER) which was to discuse these matters was issued. 20 NRC 897. The Board further gave Intervenors 30 days after the issuance of the SER to amend the contention if they believed the SER contained the basis for an amendment, and stated that if the Intervenors did so amend the contention the Board would rule on the contention as then worded, d.

The Staff SER was issued in June 1985. Georgia Power Co. , et al.

(Safety Evaluation Report related to the operation of the Vogtle Electric Generating Plant, Units 1 and 2, NUREG-1137, June, 1985). Neither GANE or the other Intervenor sought to amend the contention. The Licensing Board then considered Contention 5 as worded, and dismissed

^

it. See " Memorandum and Order (Ruling on Admissibility of Proposed

, Contention 5 re: Vogtle Seismic Design Adequacy), dated September 12, 1985. The Board there noted (at 3), that Appellant ignored the existence of Applicants' discussions presented in Section 2.5 e_t t seq. of the Vogtle Final Safety Analysis Report (FSAR), and had offered no basis for its

alleg& tion that the design of the Vogtle Plant has been improperly assessed. The Applicants' FSAR had discussed seismic considerations appropriate to the Vogtle site, including the relevance of the Charleston earthquake. The Licensing Board further found that Applicants' compliance with the deterministic requirements of 10 C.F.R. 100, Appendix A was also presented '.n the FSAR, and that the adequacy of that compliance has not been challenged by the Appellant. M. The i Licensing Board also noted that Appellant had not commented upon, much less challenged, the Staff's seismic and geologic evaluation of the Vogtle site presented in the SER. (HUREG-1137, June,1985). M.

The SER dealt at some length with the seismology and geology of the site, and concluded that as of the date of issuance of the SER the Staff saw no need to modify its acceptance of Vogtle, a position that was also taken during the construction permit review (NUREG-2237, at 2-38).

Memorandum and Order of September 12, 1985, at 4. The Licensing

Doard accepted the Staff's SER conclusions since the Staff had taken cognizance of the following: the clarified position of the USGS regarding the Charleston earthquake; NUREG/CR-3756; a more recent report on

probabilistic analysis (UCID-20421, Seismic Hazard Characterization of the Eastern United States, Bernreuter, g f., April 1985); the results of NRC sponsored on-going deterministic studies of the Charleston i

t - carthquake; and various studies made by the Applicants and others. M.

On this basis the Licensing Board rejected Contention 5 as not providing any basis for challenging the seismic design of Vogtle.

The Licensing Board's Order excluding Contention 5 from litigation should be affirmed as GANE did not provide a basis for the contention.

I 1

~

See Philadelphia Electric Co. , CLI-85-15, 22 NRC at 187; Id. , ALAB-845, ,

slip op. at 7-8.

G. Contention 6 This proposed contention asserted that:

The Applicant cannot guarantee the safe operation of the reactor for the life of the plant due to unresolved questions of thermal shock effects on irradiated reactor vessels as required by 10 C.F.R. 50 Appendices A, G, and H and other applicable laws, rules and regulations.

On appeal of the Licensing Board's denial of admission of this contention for litigation, Appellant recognizes that the Licensing Board dismissed this contention "on the grounds that it lacks a sufficiently particularized basis." Brief at 6. However, Appellant argues that the Board apparently ignored Appellant's " original filing of the contention" which Appellant argues supplied the requisite particularized basis. Id.

To the contrary, the Licensing Board carefully examined the Appellant's proposed bases and dismissed the contention because the Appellant failed to show its concerns and the unresolved safety issue on thermal shock had any relevance to the reactor vessels at Vogtle. 20 NRC at 898. As the Board recognized, the mere citing of an unresolved safety issue without showing its relevance to the plant in question does not provide the basis for a contention. See Gulf States Utilities Co. (River Bend Station , Units 1 & 2), ALAB-444, 6 NRC 760, 773 (1977). The Board also noted that Appellant's concern about the existence of cepper and

. phosphorous in the Vogtle reactor vessel alloy was not shown to relate to accelerated embrittlement. 20 NRC at 898. Finally, the Board correctly noted that Appellant's concern about the cost to Applicants, should the pressure vessel need to be heat treated during the operating lifetime of l

~

the Vogtle plant, is beyond the scope of this proceeding. Thus, the Board correctly rejected Contention 6 since it did not have a particularized basis and did not appear to be applicable to the plant at bar. See also Duquesne Light Co. , ALAB-109, 6 AEC at 246.

H. Contention 9 This contention asserted that:

Novel design features must be discussed and described adequately in the PSAR and FSAR as required by 10 C.F.R. 50.34. The Applicant has embarked on the implementation of the reactor coolant system primary loop at Plant Vogtle using a pipe restraint system design that differs substantially from that currently required. Although assertions of the effectiveness of this new design have been issued, substantiating mechanical modelling and empirical justification have been withheld. The Applicant has therefore failed to provide even the minimal information required to understand and assess the safety repercussions of this innovative design.

As Appellant states, Applicants, at the May 30, 1984 Special Prehearing Conference, agreed to provide Appellant and former Intervenor CPG with additional information on the subject matter of proposed Contention 9 under t. protective proprietary agreement. Brief at 15. This information was provided. Id. Now, upon appeal, Appellant states that the information provided to it by Applicants indicates that the plant has been made safer by the removal of safety equipment, and that this is " preposterous". M. Thus, it is claimed that the Licensing Board

. should not have dismissed the contention. M. Appellant's argument totally misperceives the basis of the action taken by the Licensing Board l .

with respect to proposed Contention 9. As explained by the Licensing Board, Appellant and CPG agreed that within thirty days after receiving the additional information from Applicants they would either amend or l

l withdraw the proposed contention. 20 NRC at 902-03. By letter dated July 26, 1984, CPG notified the Board of its withdrawal of proposed Contention 9. No separate communication was received from Appellant.

Dased on the fact that CPG and Appellant had taken identical positions regarding the handling of proposed Contention 9 at the Special Prehearing Conference, the Licensing Board explicitly stated that it considered Contention 9 to be withdrawn from the proceeding. ,Id . Until it filed the subject brief on appeal, GANE raised no objection to that action. If Appellant disagreed with the Licensing Board's determination in this regard, it should have notified the Licensing Board within the five day period provided for one to object to the Board's prehearing conference orders 10 C.F.R. I 2.751a. It did not do so. It may not raise this issue upon appeal.

In view of GANE's silence when it had an obligation to speak, and in view of the fact that CPG and GANE had been acting in concert, the i Licensing Board correctly viewed the contention as withdrawn. It cannot

now resurrect issues on appeal, when it failed to properly protect its rights below. Sec Duke Power Co. (Catawba Nuclear Power Station, Units 1 and 2), ALAB-813, 22 NRC at 82-83; Houston Lighting & Power Co. (South Texas Project Units 1 and 2), ALAB-799, 21 NRC 360, 378 (1985).

. I. Contention 10 (Subparts 10.2,10.6 and 10.9)

As originally proposed, Appellant's proposed Contention 10 alleged that: 4 Applicant has not shown that safety-related electrical and mechanical equipment and components will be environmentally qualified at the onset of operations and throughout the life of the plant as required by

General Design Criteria 1, 2 and 4 of 10 C.F.R. 50, Appendix A and other applicable NRC rules.

o In a May 7,1984, response to this contention, Applicants broke the contention down into eleven subcontentions dealing with various types of equipment Intervenors had identified in the bases for the contention, and addressed the admissibility of each of these subcontentions. At the prehearing conference this breakdown of Contention 10 into eleven subcontentions was used so that the contention could be discussed more easily. 20 NRC at 903. The Licensing Board, as discussed below, excluded from litigation Subcontentions 10.2, 10.6 and 10.9, among others. Appellant asserts on appeal that the Licensing Board erred in excluding these three subcontentions. Brief at 16.

(1) Subcontention 10.2 This subcontention alleged that the Applicants had failed to consider the synergistic effects of radiation, heat and oxygen on Vogtle plant equipment. Brief at 16; 20 NRC at 903-04, i Although as Appellant maintains, the Staff did not object to admission of this subcontention, the Applicants in their May 7, 1984 response to this proposed subcontention pointed out that the Vogtle FSAR stated that the synergistic effects of environmental conditions on cables were being tested. 20 NRC at 904. The Licensing Board stated that its review of the FSAR indicated that while the results of testing the cables for synergistic effects were not yet available, it appeared that the

. Applicants were conducting those tests. _Id . Thus, the Board noted that contrary to the allegations in the contention, cables were being tested for synergistic effects. Id. Nor did the Appellant identify any other equipment or components which it believed to be susceptible to synergistic

~

effects. The Board thus rejected the conten'tfon which alleged that the Applicants were not considering synergistic effects of environmental conditions as lacking a specific basis. Id.

Appellant's Brief fails to address why the above-stated reasons for the Board's exclusion of this subcontention were wrong. Plainly there was no apparent basis for the subcontention, as required by 10 C.F.R. 2.714(b). The Board's rejection of the subcontention should be affirmed.

(2) Subcontention 10.6 As a basis for this subcontention on the environmental qualification of equipment, Appellant originally cited IE Notice 81-29 for the proposition that motor operators manufactured by Limitorque had exhibited failures upon exposure to steam spray. Applicants submitted a letter, dated June 27, 1984, in response to the contention which contained an affidavit averring that new motors designed by Westinghouse and 1

Limitorque had been successfully qualified in a 420'F steam environment and that these new motors had been ordered as replacements for the ones that were the subject of the original subcontention. On this basis the Licensing Board ruled that the subcontention seemed moot. As also noted by the Licensing Board, former Intervenor CPG, by letter dated July 26, 1984, advised that it would not pursue this issue. The Board further l

i noted that although Appellant had not replied to Applicants' letter, the l

l- Board considered the issue raised by this subcontention to be moot and denied admission of the subcontention in question. 20 NRC at 905. As was the case with Contention 9, if Appellant disagreed with the Licensing Board's interpretation of the situation with respect to this subcontention, the time within which to interpose this disagreement has long since

expired and it may not first do so upon appeal. See 10 C.F.R.

I 2.751a(d); see also Duke Power Co. , ALAB-813, 22 NRC at 82-83; Houston Power & Lighting Co., ALAB-799, 21 NRC at 378.

On appeal Appellant asserts that subsequent to the Licensing Board's Order of September 5, 1984, a history of " continuing problems" with Westinghouse motor operators has been shown in numerous Staff IE notices. Brief at 17-18. Appellant further asserts that these IE notices should be considered as new evidence, and on that basis, consideration of Subcontention 10.6 should be reopened. Id. This argument should be rejected. In a regulation adopted this year (10 C.F.R. I 2.734), the Commission set out its standerds for reopening a record in an ongoing proceeding. Sec 51 Fed. Reg. 19535 (1986). The regulation provides that:

(a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:

(1) The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presently.

(2) The motion must address a significant safety or environmental issue.

(3) The motion must demonstrate that a mate-rially different result would be or would have been likely had the newly proffered evidence been considered initially.

(b) The motion must be accompanied by one or more affidavits which set forth the factual and/or technical l.

bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied.

l Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised.

l Evidence contained in affidavits must meet the admissibility standards set forth in 5 2.743(c). Each l

l l

1 of the criteria must be separately addressed, with a specific explanation of why it has been met. . . .

.~

As the Statement of Consideration accompanying the regulation recog-

. nized , the regulation codified Commission precedent on the reopening of records. 51 Fed. Reg. at 19536-37; see Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598,11 NRC 876, 879 (1980), cited with approval in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 285 n.3 (1985). This test has received judicial approval.

OystershcIl Alliance v. NRC, No. 85-1182 (D.C. Cir., September 9, 1986); Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720, 732 (3rd Cir.

1985), cert, denied sub nom., Aamodt v. NRC, U.S.

(1986).

Appellant's brief does not even attempt to meet the criteria in 10 C.F.R. I 2.734(a). Further, no affidavits are submitted to show that i

the matters raised are being submitted in a timely manner, and that this issue is significant and would likely lead to a different result in the proceeding as required by 10 C.F.R. I 2.734(b). No basis exists to reopen the record to consider the matters mentioned in Appellant's brief.

For all the foregoing reasons, the Licensing Board's rejection of Subcontention 10.6 should be affirmed.

(3) Subcontention 10.9 b As a basis for this subcontention, Appellant cited NUREG-0606 (Unresolved Safety Issues Summary, August 20, 1982) for the proposition that design criteria and methods. for seismic qualification of equipment in nuclear plants have undergone significant change, requiring a reassessment of Vogtle. On appeal Appellant argues that since the Applicants failed to provide any such assessment the Licensing Board

l l

1 I

~

crred in denying admission of Subcontention 10.9. Brief at 19.

Appellant urges that Applicants he ordered to conduct a reassessment with an opportunity for Appellant to raise new contentions. Id.

Appellant's assertions are without merit since they ignore the basis for the Licensing Board's action with regard to Subcontention 10.9, and ignore the standards in 10 C.F.R. I 2.734 for reopening a record.

The Licensing Board in rejecting this Subcontention noted that USI-46 (Seismic Qualification of Equipment in Operating Plants), which the Licensing Board assumed to be the focus of Appellant's attention, is addressed to the question of the need for the backfitting of operating plants. As noted by the Licensing Board , no nexus between this unresolved safety issue and Vogtle was offered by Appellant nor did Appellant allege that any specific Vogtle plant equipment or component had not met seismic qualification requirements. Under Gulf States Utilities Co. , supra, the mere recitation of an Unresolved Safety Issue, without showing relevance to the plant in question cannot be the basis of a contention. Thus, the Board correctly rejected Subcontention 10.9 as lacking an adequate basis. 20 NRC at 907. Further, the Appellant has not met the standards of 10 C.F.R. 5 2.734 for reopening the record in regard to this Contention 10.9 as it has not shown, by affidavit, that it timely raises this matter, that the matter is significant or that it could

. lead to a different result in the proceeding. See discussion of Contention 10.6, supra.

7

., 'N 3

\ III. The Licensing Board Properly ' Granted Summary Disposition of Contention 8, 10.3, p.7, 11, 13 (later offsite emergency planning contentions) and 14

, A. lThe Use of Summary Disposition Appellant challenges ~t he Licensing Board's grant of summary dieposition on contentions 8, 10. 3', 10.7, 11, 13 and 14.

Section 2.749 of tiie Commission i Rules of Practice, 10 C.F.R.

I 2.749, cuthorizes the granting of motions for summary disposition.

\

Section 2.749(d) provides in part that:

The presiding officer shall render the decision sought

. , if the filings in the proceeding, depositions, answers to interrogatories, and' admissions on file , together with the statements of the parties and the affidavits, if any.'show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.

i The use and granting of summary disposition motions was encouraged by the Commission in its Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 457 (1981), where it stated:

In exercising its' authority to regulate the course of a hearing, the boards should encourage the parties to invoke the summary disposition procedure on issues

' where there is no genuine issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues.

Under section 2.749(b) a party opposing a motion for summary disposition "may not rest on mere allegations or denials" but must " set q.

forth facts showing that there is a genuine issue of fact." See j .

17/ The Licensing Board also granted Applicants' motions for summary dispcsition of Contentions 10.1 and 12. However, Appellant does not

~

l appeal these actions. See Brief at 16 and 20.

tqm

. - . .. n. - - , , . . . .......n,- .----n-,.-.-..-.-,,,,- ---.,_..r,w, - ,. ---,, ,, ..-- -

Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units

- 1 and 2), ALAB-584,11 NRC 451, 453 (1980). Where the party opposing a motion for summary disposition has not done so and has not filed a statement of the material facts as to which it contends there are genuine issues to be heard, the facts asserted by the movant "will be deemed to be admitted." 10 C.F.R. I 2.749(a), see Houcton Lighting & Power Co. ,

(Allens Creek Nuclear Generating Station), ALAB-629,13 NRC 75, 77-78 (1981).

As to each contention which Appellant seeks to appeal the grant of

~

summary disposition, except for contention 8, Appellant did not file a statement of facts as to which it claimed there were disputed issues of

! fact, or_ even oppose the motion. Thus Appellant is foreclosed as to each of these contentions from claiming that the Licensing Board wrongly decided any matter of fact or improperly granted the motion for summary disposition. 10 C.F.R. 9 2.749(b). b The appeal of summary disposition of contentions 10.3, 10.7, 11, 13 and 14 should be dismissed because CANE did not oppose the motions for summary disposition of those contentions.

B. Contention 8 Contention 8 alleged:

Applicant has failed to enforce a quality assurance program in the construction of Plant Vogtle that

, -18/ Further, a party may not raise issues upon appeal it has not j pursued below. See e.g. Consumers Power Co. (Midland Plant ,

i Untis 1 and 2), ATAB 6n, 16 NRC 897, 907 (1982) (issues not raised in exceptions or findings may not be appealed);

Houston Lighting & Power Co. (South Texas Project, Units 1 and 2),

ALAB-799, 21 NRC 360, 378 (1985) (objections not raised below may not be appealed).

provides adequately for the safe functioning of diverse structures, systems and components, as o required by 10 C.F.R. Appendix B.

Appellant devotes a substantial portion of its Brief, at 9-15, to maintaining that the Licensing Board committed error in granting Applicants' motion for summary disposition of Contention 8. EI However, nothing in the Brief 'shows that there was error in granting summary judgment on this contention.

As the Board recounted, Applicant's motion for summary disposition of Contention 8 EI was supported by ten supporting affidavits and thirty-seven attachments analyzing the QA deficiencies relied on by Joint Intervenors in support of Contention 8, their nature, how they occurred, their resolution and the action taken by Applicants to prevent their reoccurrence. Memorandum and Order, October 3, 1985, at 5-6. The program elements of the Applicants' Quality Assurance Program (QAP) were also detailed in those affidavits. Id,.

The Staff supported Applicants' motion for summary disposition. U The Staff's support was based on affidavits from nine Staff employees with inspection responsibilities at Vogtle. The Staff affidavits reviewed the deficiencies raised by the Joint Intervenors and found that there had

. 19/ See Memorandum and Order (Ruling on Summary Disposition of Contention 8 re: Vogtle Quality Assurance) of October 3, 1985; Memorandum and Order (Ruling on Joint Intervenors' Motion for Reconsideration and Other Requested Relief) of December 3, 1985.

20/ Applicants' Motion for Joint Intervenors' Contention 8 (Quality Assurance), June 24, 1985.

21/ NRC Staff Response to Applicants' Motion For Summary Disposition of Contention 8, August 5,1985.

l

i .

been no breakdown of the QAP in the areas involved in the contention

, and that the QAP was effective.

The Joint Intervenors, Appellant and CPG, in their response to the motion for summary disposition of Contention 8 did not offer any

^

probative facts or submit any affidavits to counter Applicants' factual review of its QAP program, the extent of the QA deficiencies, how they were resolved , and the manner in which the QAP program was upgraded. 2_2/ Nor did Joint Intervenors seek to refute the findings of 4 the Staff's inspection personnel that there were no breakdowns of the QAP program in the relevant individual areas raised in the contention or in the Applicants' program as a whole.

, In responding to Applicants' motion, Joint Intervenors merely alleged the existence of conflicting material facts. Their major argument in opposition to Applicants' motion was that it was in the process of further l

investigating the matter of the QAP and that it would make its case at the hearing. Id. at 5, 12-14. Nothing specific or substantive was provided by Joint Intervenors to refute facts asserted by Applicants and confirmed by Staff. They did, however, allege that Applicants, in an attempt to circumvent the requirements of Appendix B to 10 C.F.R. Part 50, instituted a Readiness Review Program (RRP). Id. at 6. However, as the Board recognized in its Order of October 3,1985, at 6-7, Applicants' motion and the accompanying affidavits established that the RRP was not a substitute for Applicants' QAP but an overlay to that effort serving to

-22/ See Joint Intervenors' Response to Applicants' Motion For Summary DTiposition of Intervenors' Contention 8, July 31,1985.

increase the confidence of Applicants' management in the operational readiness of Vogtle. See also Memorandum and Order Upon Reconsideration, December 3,1985, at 7-10.

Thus, based upon the essentially undisputed facts of record, the Licensing Board was able to conclude that the deficiencies raised by the Joint Intervenors had been addressed by Applicants and Staff, did not involve any material matter of safety significance and did not, in their totality, indicate a pervasive breakdown of Applicants' QAP. Memorandum and Order, October 3,1985, at 9. The facts before the Licensing Board established that the QAP not only met the formal requirements of 10 C.F.R. Part 50, App. B, but also functioned in accord with its intent.

Based on the foregoing, the Board concluded that Contention 8 was without foundation, and granted Applicants' motion for summary disposition. Id.

The Joint Intervenors filed a motion requesting the Licensing Board to reconsider its October 3, 1985, Order. b In the alternative, they requested a continuance, under 10 C.F.R. I 2.749(c), of the ruling dismissing Contention 8 in order to provide time for the proposed submission of affidavits of plant workers allegedly bearing on the alleged j failure of Appifcants' QAP. Id. at 11-12. The motion was accompanied

[

l by an affidavit from the Director of the Environmental Whistleblower

. Protection Clinic in Washington, D.C. concerning the proposed gathering of affidavits from individuals who had been employed at Vogtle.

,23/ Joint Intervenors' Motion For Reconsideration, October 28, 1985.

Applicants responded to the motion for reconsideration urging that the motion be denied because it was unfounded and was unsupported. E Applicants submitted two affidavits and ten documents in support of their The Staff filed a response to Appellant's motion which arguments.

maintained that the Licensinrr Board properly granted summary disposition of Contention 8 and asked that Appellant's motion for reconsideration or for a continuance should be denied. El The Licensing Board denied Appellant's motion for reconsideration or for a continuance. -0 The Licensing Board detailed that its October 3 Order was consistent with established Commission precedents, which held that in order to have an effectively functioning quality assurance program I

there need not be a demonstration of error-free construction. See Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 346 (1983); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, 1345 (1983). Further, the Board reiternted that a party opposing a motion for summary disposition may not rely upon a simple denial of material facts or merely contend that there are material facts in dispute, but that they must set forth specific f

facts showing that there is a genuine issue of fact for hearing. See Virginia Electric Power Co. , ALAB-584, 11 NRC at 453. This Appellant 24/ Applicants' Response to Joint Intervenors' Motion for Reconsideration of the Board's Memorandum and Order on Summary Disposition of Contention 8, November 12, 1985.

l l

25/ Staff Response to Intervenors' Motion for Reconsideration of Order Granting Summary Disposition of Contention 8, November 18, 1985.

l

-26/ Memorandum and Order (Ruling on Joint Intervenors' Motion for Reconsideration and Other Relief), December 3,1985.

,. ,-- -,-,-..,-.-r,---,~- . . - - , . - . - - . . - . - - - . - - , - - , - , , , - , - - - - . , - . - - - , . .

failed to do. A party cannot avoid summary disposition on the hope that the Applicants' evidence may be discredited at hearing or that something may turn up. Gulf States Utilities Co. (River Bend Station, Units 1 and

+ 2), LB P-75-10, 1 NRC 246, 248 (1975). Memorandum and Order, December 3,1985, at 5. Thus, as a matter of law, the Licensing Board refused to reconsider its October 30 Order, and reiterated that the Applicants were entitled to summary disposition of Contention 8 as Inter-venors had failed to show a factual basis for the contention. Id. at 5, 12-13. For similar reasons the Licensing Board denied the request for a continuance. Id. at 5-6,15-16.

A review of the Licensing Board's Orders and the underlying record on which they were based demonstrates that the granting of summary

disposition of Contention 8 was correct. The Intervenors did not set out probative facts to counter the Applicants' and Staff's review of the Vogtle quality assurance program. No refutation was filed to the affidavits finding that there was no QA breakdown at Vogtle. All Intervenors set forth in their affidavits was that they heard from generally unnamed sources that there were QA de'iciencies at Vogtle and hoped to establish i at hearing that there was a QA breakdown. Such allegations and hopes l

are not sufficient to defeat a motion for summary disposition. See Virginia Electric and Power Co. , supra; Houston Lighting & Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-629, 13 NRC 75, 78 (1981).

1

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GANE's brief here adds nothing to former papers. It merely states that unnamed people who were afraid to be identified reported to it that there were QA breakdowns in the construction of the Vogtle plant. Brief

at 10-14. Again no material facts are alleged to show that any basis for

., the contention exists. The Licensing Board's summary disposition of Contention 8 should be affirmed.

C. Subcontention 10.3 This subcontention challenged the environmental qualification of multiconductor cable used at Vogtle and was based upon the results of generic cable testing performed by the Sandia National Laboratories (Sandia) . 20 NRC at 904. The Licensing Board, upon Applicants' motion , summarily dismissed Subcontention 10.3. b Appellant's sole assertion of error is that it had " submitted sufficient documentation to bring this issue to hearing . . . ." Appellant's assertion is factually incorrect. Appellant did not respond to Applicants' motion for summary disposition. On this basis alone , the Appeal in regard to this subcontention should be dismissed. See Point IIIA, supra.

Moreover, an examination of the record below shows that summary disposition was appropriate. The Licensing Board in admitting Subcontention 10.3, stated the following:

Again, [ Appellant] cite [s] a Sandia study (not identi-fled) for the proposition that in tests of EPR

[ ethylene propylene rubber) cable material, multi-conductor configurations performed "substantially worse" than single conductor configurations and that qualification testing employing only single conductors may not be representative of multiconductor perform- ,

I ance. Petitioners further allege that the results of I

• this report have not been considered in Applicants' testing program.

27/ Memorandum and Order (Ruling on Summary Disposition of Conten-l tion 10.3 - Cable in Mult! conductor Configuration) dated August 21, 1985. (August 21,1985 Order).

1 20 NRC at 904.

Applicants' motion for summary disposition was accompanied by a listing of fifteen alleged material facts as to which no genuine issue exists to be heard plus a summary of the subcontention (Applicants' Statement at 1) and a conclusion as to why Applicants were entitled to a decision (Applicants' Statement at 17). E The Applicants' motion was also accompanied by an affidavit in support of the above-mentioned facts.

The Board found that Applicants' affiant had professional qualifications adequate to support his assessment of the subject. August 21, 1985 Order at 2.

4 The Staff supported Applicants' motion as the Sandia tests upon which Intervenors relied only questioned the testing of single condutor cables in place of multiconductor cables where such multiconductor configurations are sheathed in Jackets of thermoplastic CPE, whereas Applicants had stated that they would only use multiconductor cables sheathed in Hypalon or neoprene at Vogtle. EI In granting summary disposition, the Licensing Board did not rely only upon Joint Intervenors' failure to file a response. The Board explicitly stated that it had carefully considered all of Applicants' and Staff's submittals along with the contents of the relevant Sandia reports.

August 21, 1985 Order at 7. On this basis the Board found that there t .

28/ Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 10.3 (Cable in Multiconductor Configurations), July 1, 1985.

-29/ NRC Staff Response to Applicants' Motion for Summary Disposition of Contention 10.3 (Cable in Multiconductor Configurations), July 26, 1986, at 5-6.

t

,_-.,,a--. . - , - _ - , - . - , c-, . - - . , ,- , - - . . , , . , , , . , . . , . - , _ _ , , , , , , , , , - - - -. ,,

was no genuine issue as to any material fact relating to Subcontention 10.3 since the Sandia tests upon which the contention was premised did not call fr.to question the use of the type of cable Applicants represented that they would use at Vogtle. Id.

No matter is cited in Appellant's Brief (at 17-18), which in any way disputes the facts premising the motion. Nothing warrants reversal of the Licensing Board's grant of summary disposition on Subcontention 10.3.

D. Subcontention 10.7 The Licensing Board granted summary disposition of this subcontention challenging the adequacy of the environmental qualification of the hydrogen recombiner system to be used by Applicants at Vogtle, b Appellant argues on appeal that the Board erred in granting summary disposition because the " production model" has never been tested. Brief at 18.

Neither Appellant nor CPG responded to Applicants' motion for i summary disposition of Subcontention 10.7, and on this basis alone the appeal of the grant of the motion should be dismissed. See Point III. A, supra.

Further , GANE gives no record support for its statement that "the production model has never been tested", and does not indicate the significance of that statement. For this reason also the appeal of this subcontention should be dismissed. See 10 C.F.R. I 2.762(d); see also i

30/ Memorandum and Order (Ruling On Motion for Summary Disposition of 1

Contention 10.7 re: Hydrogen Recombiners) , November 5, 1985, Order.

l

Public Service Electric & Gas Co. (Salem 14uclear Generating Station ,

. Unit 1), ALAB-650,14 NRC 43, 49-50 (1981).

Storeover, an examination of the Board's November 5,1985 Order and the underlying record demonstrates that the appeal concerning Subcontention 10.7 is without merit. The Board admitted subcontention 10.7 because it had certain residual uncertainties concerning the hydrogen recombiners. Thus, the Board in its order admitting subcontention 10.7 asked the parties to address the following questions:

Are there any types of transducers or sensors important to the proper functioning of the Vogtle electric-type hydrogen recombiner in an accident environment that require environmental qualification testing in an accident environment; if so, what testing is planned or completed and with what results?

If environmental qualification testing in an accident environment or an entire prototype recombiner is not required, what is the basis for this conclusion? If such testing is planned or has been completed, what is the nature of the test and what criteria exist for assessing the adequacy of the test results?

f 20 NRC at 905-906 (1984).

Applicants filed a motion for summary disposition of Subconten-tion 10.7 responding to the Board's questions. b The motion was l

accompanied by a statement of twenty-two alleged facts as to which no genuine issues exist and two affidavits supporting those statements of

fact.

j -31/ Applicants' Blotion for Summary Disposition of Joint Intervenors' Contention 10.7 (llydrogen Recombiners), July 18, 1985.

The affidavit of a Westinghouse Electric Corporation employee

, explained that there are three components or modules comprising each recombiner: a flameless , electrically operated recombination module located within the containment building; an electric power supply located outside of the containment building; and a control module for the manual control of the recombiner, also located outside the containment building.

Affidavit of Richard P. Miller, July 17, 1985, at 4. In the opinion of the affiant , since the hostile post-LOCA environment is confined within the containment building and only the recombination module is located within the containment, environmental qualification of only the recombination module is necessary, d. at 12. He further stated that Vogtle will utilize a Westinghouse Blodel B recombiner system which does not have sensors and transducers within the containment for the proper fun-: tion of the system. ,Id . at 24. Detailed tests on hydrogen recombiners were also described by the affiant who ntated that production versions of hydrogen recombiners had been successfully tested under test conditions which exceeded those anticipated to exist in a post-LOCA environment within the Vogtle containment. Id. at 10-37. The affidavit of a Bechtel Power Corporation employee confirmed that the containment hydrogen monitoring system at Vogtle is located outside of the containment building and does not rely upon any sensors and transducers within the containment for its operation. Affidavit of Glenn II. Stolz, July 11, 1985, at 2-3.

1 i

(

h

&- 9 w,--.- . - . _ _ .__..__....-.._,-.__.__._m___._,.,.__._..m-____y,,.--,-y__,_ -

.-._-y_ _ _ _ , , . _ .,r- -- _ _ .

The Staff's response to the motion for summary disposition of Subcontention 10.7 was accompanied by two affidavits, b Staff's aff1 ants agreed with all of Applicants' alleged facts. They also further affirmed that the Staff has approved the design of the Westinghouse Model B recombiner as well as the Westinghouse environmental qualification tests. Affidavits of Chang-Yang Li and Hukam C. Garb, August 29, 1985.

Based on a review and consideration of all the papers before it in connection with Applicants' motion for summary disposition of Subcontention 10.7, the Licensing Board concluded that Applicants had catablished that there were no litigable issues of fact, and that the Vogtle recombiners had received adequate environmental testing to assure their operability in a post-LOCA environment. Memorandum and Order, November 5,1985, at 5. Since these conclusions were uncontroverted by Appellant, either at the time the Licensing Board had Applicants' motion under consideration or on appeal, the Licensing Board's decision dismissing Subcontention 10.7 should be affirmed.

E. Contention 11 Contention 11 alleges that:

Applicants have not demonstrated their basis for confidence that no unacceptable radiation releases will occur as the result of steam generator tube failures occasioned by vibration-induced fatigue cracking and by bubble collapse within the Vogtle steam generators.

32/ Staff's Response to Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 10.7 (Hydrogen Recombiners, August 30, 1985.

i l

_.m,_~ . _ _ , . _ _ _ _ _ . _ _ _ , , - - - , _ . _ _ . _ _ . _ _ _ _ . _ _ . _ , _ . _ . _ _ _ _ _ _ _ _ . _ _ _ _ _ , _

20 NRC at 908. EI o Appellant asserts on appeal that it presented evidence showing that stress corrosion cracking is a serious problem and the Board failed to consider Appellant's information. Drief at 19-20. As was the case with Applicants' motion for summary disposition of a majority of the other contentions, the Appellant and CPG did not respond to the Applicants' motion for summary disposition of this contention. EI Appellant's failure to respond to the motion for summary disposition forecloses an appeal of the grant of that motion. See Point III. A. supra.

Further, a lack of record support for the appeal from the grant of summary disposition of the contention, and the lack of meaningful argument on why the Board erred in granting the motion, requires that the appeal on Contention 11 be dismissed. 10 C.F.R. 2.762(d);

Public Service Electric a Gas Co. , supra.

Moreover, an examination of the Licensing Board's September 3, 1985, order and the underlying record on which that order is based, demonstrates that the Licensing Board's grant of summary disposition of Contention 11 is fully supportable. As indicated at 2 of the Board's Order, Applicants' motion for summary disposition was accompanied by a list of fifteen alleged material facts as to which no genuine issue exists 33/ This steam generator tube failure contention was based upon histori-

~

cal experience and the inclusion of steam generator problems in the NRC Report NifREG-0606, Vol. 4 No. 3. " Unresolved Safety Issues Summary", September 1982.

34/ Memorandum and Order (Ruling on Motion for Summary Disposition of Contention 11 re: Steam Generators), September 3, 1985 (Septem-ber 3,1985 Order), at 2.

I

^

and an affidavit supporting those facts. EI This affidavit showed that

- vibration induced fatigue cracking was not a phenomenon which affected the steam generators to be used at Vogtle, and that the Applicants had J properly designed Vogtle so as to minimize steam bubble collapse.

Affidavit of Carl W. Hirst, June 28, 1985, at 5-8, 13-18.

The Staff supported Applicants' motion and submitted two affidavits which concluded that vibration induced fatigue and .

steam-bubble-collapse-water-hammer phenomena are adequately protected against at Vogtle by virtue of design features and compliance with ,

regulatory requirements. 3,6/

From a review of the undisputed material facts of record, the

! Licensing Board concluded that Contention 11 was without merit.

Appellant sets out no reason to reverse this determination, and its appeal of the dismissal of Contention 11 should be rejected.

F. Contention 13 This contention as originally propounded read as follows:

Petitioner contends that Applicants' proposed emer-gency plan fails to ensure that protective measures can and will be taken in the event of a radiological mishap at Plant Vogtle as required by 10 C.F.R. 50.33, 50.47, 50.54 and ' Appendix E to Part 50.

Prior to the Special Prehearing Conference on May 30, 1584, Appellant, CPG, Applicants and Staff met and agreed that Appellant i

, 35/ Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 11 (Steam Generators), July 5,1985.

36/ NRC Staff Response to Applicants' Motion for Summary Disposition of l

Contention 11 (Steam Generators), July 30, 1985; affidavit of Jai Raj Rajan, July 30, 1985, at 3-4; affidavit of William T. Le Fave, July 30, 1985, at 4.

. . - . . . . . . . , ~ . _ _ _ . , _ _ _ _ - , _ . , _ _ , _ , . _ , - _ _ , _ _ _ , _ _ _ . _-__,..,,..__,--,._,m .-m.____ _ . . , _ _ . . . .

N would refile Proposed Contention 13 based upon information contained in

, future emergency plans to be submitted by Richmond and Burke Counties, Georgia, sometime in the fall of 1984. Brief at 20. Based on this agreement the Licensing Board granted Appellant (and CPG) thirty days from issuance of Applicants' emergency plan within which to propose contentions. 20 NRC at 910. Applicants provided Appellant and CPG with a copy of their onsite emergency response plan on November 30, 1984. Neither Appellant or CPG ever filed any proposed contentions e

relating to the onsite plan.

On May 3, 1965, Applicants provided the parties with copics of the Georgia State and County offsite emergency plans and the South Carolina State offsite emergency plan. E On June 24, 1985, Appellant and CPG filed proposed offsite emergency planning contentions. Applicants and

. Staff responded to these contentions on July 5,1985 and July 15, 1985, respectively. By Order dated August 12, 1985, the Board admitted eight contentions for litigation. At the conclusion of discovery, Applicants filed separate motions for summary disposition as to each of the contentions. These motions were all supported by Affidavits. Neither i

Appellant nor CPG filed responses. The Staff ultimately supported all of Applicants' motions. The Staff's support was based on accompanying Affidavits from the Federal Emergency Management Agency.

Appellant's Brief fails to set forth any argument in support of its appeal of the grant of summary disposition on the emergency planning i

E/ On February 5, 1986, Applicants served a South Carolina County and State Revised Plan, f

I

i contentions. Since Appellant did not oppose any of the Applicants'

. motions for summary disposition of the offsite emergency planning contentions, it may not appeal the granting of those motions and its appeal of the granting of these motions should be dismissed on that basis alone. See Point III. A supra. Further, the appeal of the grant of summary disposition on these offsite emergency planning contentions must be dismissed for failure of GANE to support the appeal with either record citations or with argument. See 10 C.F.R. I 2.762(d). Additionally, because an examination of the Licensing Board's Orders ruling on Applicants' motions for summary disposition 38,/ and the underlying record shows that there were no genuine issues of fact to be tried and that the contentions were without merit, there is no warrant for disturbing the Licensing Board's rulings which grew out of Contention 13.

G. Contention 14 Contention 14 alleged:

There is no reasonable assurance that the emergency diesel generators manufactured by TDI to be used at Plant Vogtle will provide a reliable and independent source of onsite power as required by 10 C.F.R. 4 Part 50, Appendix A. General Design Criteria # 17, in that inadequate design , manufacture and QA/QC have resulted in substandard engines which are subject to common mode failures.

20 NRC at 911.

Appellant asserts that the Licensing Bosrd erred in granting Applicants' motion for summary disposition of this contention because f emergency generator reliability is crucial to plant safety. Brief at 21-22.

l

)

38/ See n.13 and n.14.

-.-y.. . ,, m.- - - _ _ _ . _ . . . , . . . . , - - . _ _ -

~

However, the issue is not whether the reliability of the diesels is a crucial concern, but whether the TDI diesels for Vogtle are reliable. The focus of Applicants' motion for summary disposition SI and the Board's subsequent order S was on whether the problems identified with the f diesels had been adequately resolved. SI As is the case with other contentions, this appeal should be rejected because GANE failed to respond to the motion for summary disposition. One may not raise arguments upon appeal which it had an opportunity to raise , but did not raise , below. See Point III. A, supra. SI

-39/ Appliennts' Motion for Summary Disposition of Contention 14 July 31, 1985.

-40/ Memorandum and Order (Ruling Upon Motion for Summary Disposition of Contention 14 re: TDI Emergency Diesel Generators),

November 25,1965 (November 25,1985 Order).

-41/ Appellant had relied heavily on difficulties previously experienced i with TDI diesel engines and engine mounted electrical cables, and alleges that use of the TDI units at Vogtle will not adequately satisfy the requirements of General Design Criterion 17,10 C.F.R. Part 50, Appendix A. The Licensing Board stated that it considered this contention as being directed at the modified and tested diesel engine units ultimately to be placed in service at Vogtle, rather than i as being directed at the as-received units initially delivered by TDI.

i Id. at 3.

l 42/ Appellant stated at 20 of its Brief that it incorporates by reference

. its response to Applicants' motion for summary disposition of con-tentions. Besides being improper (see Public Service Electric

! & Gas Co., 14 NRC at 50; Public Service Electric & Gas Co. (Hope

. Creek Generating Station, Units 1 & 2), ALAB-394, 5 NRC 769, 770 (1977)), such an incorporation by reference is in this instance impossible. Appellant and CPG requested an extension of time within which to respond to Applicants' motion, but never filed a substantive response to the motion in question. See November 25,1985, Order at 1-2.

l t.

)

Moreover, an examination of the Board's November 25,1985, Order dismissing contention 14 and the underlying record on which that Order is based, shows that the Board's grant of summary disposition as to Contention 14 was proper. Applicants' motion for summary disposition of Contention 14 was accompanied by a statement of thirty-eight material facts as to which Applicants alleged that there were no litigable issues and three affidavits. The Board concluded that these affidavits showed that Applicants led a program of TDI diesel generator owners to resolve TDI diesel generator engine problems, and review and requalify these engines; that there had been successful testing of diesel generator engines of the type being used at Vogtle, at the Comanche Peak Station and at the Catawba Plant; that the Vogtle Applicants had a program for the examination repair, modification, testing and maintenance of the Vogtle engines to render them acceptable for nuclear service; that problems applicable to the TDI diesel generator engines at Vogtle were resolved or being resolved by engineering reviews of inspections and tests performed on engine components; and that Applicants represented that they had an ongoing program to address diesel generator engine problems. November 25, 1985 Order at 3-5.

The Staff's response supported the granting of Applicants' motion for summary disposition of Contention 14. b It was accompanied by an

. affidavit which affirmed Applicants' statement of facts and confirmed the Staff's approval of the TDI Owners Group Program plan and portions of

! 43/ Staff's Response to Apolicants' Motion for Summary Disposition of Joint Intervenors' Contention 14, September 23, 1985.

1

- -----,_.-m-

the Phase 1 implementation results therefrom under which Applicants were

, justifying their diesel engines. EI It further stated that the Staff anticipated approving the balance of the Phase 1 implementation efforts later in 1985. Id. at 3. SI Finally, Staff's affiant concluded that Applicants' commitment to actions deriving from the Owners Group and from the results of Applicants' own efforts gave the Staff adequate assurance that the Vogtle TDI emergency diesel generators (EDGs) would perform reliably when needed and that Appellant's concerns were unfounded. Id. at 9.

Based upon its review and consideration of the foregoing, the Licensing Board concluded that Applicants had undertaken a well-considered, in-depth approach to qualifying their TDI EDGs for reliable nuclear service at Vogtle. November 25, 1985 Order at 5. The Board further concluded that the program provided reasonable assurance 4

that the emergency diesel generators to be used at Vogtle would provide a reliable independent source of onsite power as required by 10 C.F.R. Part 50 App. A, General Design Criteria 1 and 17. Id. Although the Board noted that evidence of the ultimate success of Applicants' efforts must await the results of preoperational testing of the Vogtle EDGs, the i

! Board was unable to find any basis to challenge the likelihood of that l success. M.

l*

l M/ Affidavit of Carl H. Berlinger, September 23, 1985, at 2-9.

l 45/ The Staff approved the balance of the Phase 1 implementation efforts

. in NUREG-1216. " Safety Evaluation Report Related To The Operabil-1 ity And Reliability Of Fmergency Diesel Generators Manufactured By Transamerica Delaval Inc.", August,1986.

l

Appellant's Drief is devoid of any reason indicating why the Licensing Board's grant of summary disposition of Contention 14 in l

Applicants' favor was in error. No fact is set out in support of the contention. The Licensing Board's dismissal of Contention 14 should be affirmed.

IV. The Licensing Board Did Not Err In Its Conclusion On Contention 7 That There Is Reasonable Assurance That Groundwater Will Not Be Contaminated By An Accidental Spill At Vogtle

! As admitted by the Licensing Board in its Memorandum and Order dated September 5, 1984, 20 NRC at 898, Contention 7 reads as follows:

Applicant has not adequately addressed the value of

i. the groundwater below the plant site and fails to provide adequate assurance that the groundwater will not be contaminated as required by 10 C.F.R. 51.20(a),(b) and (c), 10 C.F.R. 50.34(a)(1), and 10 C.F.R.100.10(c)(3) .

Following discovery, Applicants filed a Motion for Summary Disposition on July 15, 1985, which was granted in part and denied in part by the Licensing Board. b The Board in its Partial Initial Decision set out the issues that had been resolved as a result of the motion: 4 Those issues satisfied by Applicants in the motion

... were the following: whether data on ground-water should be analyzed statistically; whether settlement of the VEGP has deformed the marl and thus affected its ability to function as an aquiclude; whether radioactive water in the auxiliary building

? (resulting from an accidental spill) could leak through

. walls and into groundwater; whether there is signifi-cant uncertainty with regard to the geology and hydrology under the marl; whether hazardous

- groundwater contamination experience at the Savannah River Plant (SRP) can be extrapolated to VEGP; and 46/ Memorandum and Order Ruling on Motion for Summary Disposition of Contention 7 re: Groundwater Contamination, November 12, 1985.

- - -- - ,...--..c-...,--.-.-.-~m. ..,..,,-n-. -

whether exploratory wells could provide a pathway for radioactive contaminants to reach groundwater.

LBP-86-26, 24 NRC (slip op. 9-10, August 27, 1986).

l. The Licensing Board did not grant summary disposition on the following five issues and they were left to be litigated at hearing:

(1) the adequacy of geological / hydrological exploration of the Vogtle site; (2) data on marl thickness; (3) permeability and continuity of the marl; (4) the direction of groundwater flow; and (5) groundwater travel time.

Id. at 10.

I The Board in its Partial Initial Decision resolved each of these issues in favor of the Applicants ruling that there had been adequate geological

and hydrological exploration at the Vogtle site to adequately characterize

'the site (slip op. at 19); that there was sufficient certainty of the

. thickness, permeability and continuity of the marl under the Vogtle site to remove concerns about its not being a barrier to groundwater flow into the underlying acquifer (slip op, at 23 and 26); that sufficient knowledge ,

existed on the direction of groundwater flow to know that contaminants from the Vogtle Plant would pose no throat to domestic or commercial groundwater supplies (slip op. at 30-31); and that groundwater travel times were sufficiently low to assure that any radionuclides that might be released by a design basis accident into the water table acquifer under Vogtle would be reduced to acceptably low concentrations before migrating i

off-site in groundwater (slip op. at 36). Further, the Licensing Board resolved a collateral issue raised during the hearing concerning the 1

impact of the possible settlement of the Vogtle Plant on grouted wells

, under the plant. Slip op. at 36. The Board found that the grout columns would not move at a different rate than the marl, and there was

!' no threat to the integrity of the marl. Slip op at 38. The Licensing Board thus concluded:

Based on the evidence of record, the Board finds that Applicants have adequately explored the geology and hydrology at VEGP and in its vicinity. The

, thickness , permeability, and continuity of the Blue Bluff marl hsve been established and will protect the underlying aquifers from contamination should an accidental spill or design basis accident occur at the plant. Further, the possible directions of ground water movement away from the plant and ground water travel time have been determined , and the results assure that a postulated spill would pose no threat to domestic or commercial water supplies. We also find that settlement of structures overlying grouted wells could not result in the opening of flow paths for contaminants through the marl. Thus, we conclude that the issues regarding contamination of the water table and protection of the underlying aquifers by an accidental spill or a design basis accident are resolved. There is reasonable assurance that ground water used as public water supplies will not be contaminated by an accidental spill, including that resulting from a design basis accident, at VEGP.

Contention 7 is without merit.

Slip op at 38-39.

Primarily, it is emphasized that the Appellant's brief on its appeal of Contention 7 contains no citation to the record in the proceeding. It i

therefore does not conform to the Commission's Rules of Practice, l* 10 C.F.R. I 2.762(d), and the appeal should not be considered. _ See Public Service Electric & Gas Co. , ALAB-625, 14 NRC at 49-50; Duke 1

Power Co. (Catawba Nuclear Station), ALAB-825, 22 NRC 785, 793 l

(1985).

1 i

f Substantively, GANE's brief appears to raise two issues in relation to groundwater issues dealt with in Contention 7. The first is whether "the Applicants had provided a route for contamination of the Aquifer by drilling holes through the marl." Brief at 7. The other was whether the grout columns which filled the exploratory borings beneath the Vogtle Plant building would move at a different rate than the surrounding marl during building settlement so as to cause a route for the contamination of the acquifer under Vogtle. Brief at 9.

The Licensing Board recognized that Appellant's witness Lawless indicated that exploratory holes "may be self-defeating by adding the potential for additional flow pathways. " Lawless , ff. Tr. 720, at 7.

i However, it rejected this testimony as "The witness cited no data or other source of information to support this statement. . . . The suggestion apparently is puro speculation." Slip op. at 16. In support of the claim l that the testimony was more than speculation, the Appellant states that it was based on Mr. Lawless' experience in working at the Savannah River Plant. IIowever, no record citation is given to support this statement, and to show that the statement was not speculation.

i The matter of whether grouted exploratory bore holes could provide a pathway to the acquifer for contaminants was examined during consideration of the motion for summary disposition of Contention 7. The

'

• Licensing Board there concluded that exploratory bore holes or wells are sealed with grout which assures that they will not be a pathway for l=

l

contamination of the underlying acquifer. EI These conclusions were based upon the affidavit submitted by the Applicants as well as the affidavit submitted by the Staff, which showed that all bore holes which could affect potable water supplies had been grouted by the "tremie method" which assured that they were completely filled and could not supply a route to contaminate the acquifier. EI Mr. Lawless'

] unsupported testimony about grouted bore holes being possible pathways to the acquifer was " pure speculation."

Similarly, as the Licensing Board found, the evidence in the record showed that Mr. Lawless' concern about differential rates of settlement

! between grout columns and the earl was without a basis. Slip op, at 36-38. Primarily, as the Stuff witness had testified, there would be little additional settlement after placement of backfill to cause any differential movement between the marl and the grouted columns. Heller, Tr. 776-77; see also Crosby, Tr. 794, 815-16 E ; cf. Lawless, Tr. 749. Further, the plasticity of the marl would cause the marl to deform and close any

)

47/ Memorandum and Order (Ruling on Motion for Summary Disposition of Contention 7 re: Groundwater Contamination), November 12, 1985, at 21-23.

48/ Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 7 (Groundwater), July 15, 1985, affidavit of Thomas W.

. Crosby, et al. , at 32-34; NRC Staff Response to Applicants' Motion for Summary Disposition of Contention 7 (Groundwater), August 7, 1985, affidavit of Gary B. Staley, August 9,1985, at 7-8.

49/ GANE apparently fevlts the testimony of Applicants' witness Mr. Crosby on the issue of differential settlement on the ground he

udmitted he was not an expert in that area. Brief at 9. However, l this testimony was also given by Staff witness Dr. Heller, whose

. qualifications were unchallenged. Tr. 776-77 (Heller).

i

,...-...-----,,.---+---_.,-,.____,-,----.----_.m.mv. ,-e.w,,m.-r-,-.-.-.---e - ---

4 f

opening which occurred. Papadopolus, Tr. 804-05; Crosby, Tr. 798. EI The Board's finding that the grout columns would not move at a different rate than the surrounding marl so as to open a pathway for contaminants (slip op. at 38) was amply supported in the record. EI f CONCLUSION For the reasons set out above, the Licensing Board's rulings i

i rejecting Contentions 1, 2, 3, 4, 5, 6, 9, 10.2, 10.6 and 10.9 from litigation should be affirmed; the Board's rulings granting Applicants' motions for summary disposition as to Contentions 8, 10.3, 10.7, 11, 13 l (later offsite emergency planning contentions) and 14 should be affirmed; and the Licensing Board's findings after hearing on Contention 7 should be affirmed.

i i Respectfully submitted, M @

ernard M. Bordenick Counsel for NRC Staff Dated at Bethesda, Maryland this 26th day of November,1986 50/ In contrast Mr. Lawless testified that he did not know the compressibility of the marl or the grout columns, or the extent of settlement of the Vogtle Plant. Lawless, Tr. 746-751.

i 51/ In addition to raising these two substantive issues in regard to the Licensing Board's disposition of Contention 7, GANE also complains r of the Board's findings on the qualifications of its witness, Mr. Lawless, and of the Board accepting the testimony of Applicants'

witnesses. Brief at 7-9. It should be noted that no statement of l qualifications was filed for Mr. Lawless and the only reflection of his

- qualifications was brcught out through his testimony at the hearing.

An examination of Mr. Lawless' testimony and the Board's characterization of that testimony shows the Board's characterization

was accurate. Cf. Tr. 721-28 (Lawless) and slip op at 11. Any matter not in thTrecord may not be the basis of a decision by this Appeal Board. Administrative Procedure Act, 5 U.S.C. I 556(e);

j 10 C.F.R. I 2.754(c), 2.760(a). Similarly, the Board's statements of the qualifications of the Applicants' and the Staff's witnesses are supported by the record. Cf. slip op. at 10-11 and the qualification statements for these witnesses (Crosby et al. , ff. Tr. 253, Papadopulos, ff. Tr. 253; Heller et al. , ff. Tr'-'fE4). '

/

.c 000KETiU '

. yw TTNITED STATES O'F AMERICA 86 NOV 28' o7

. NUCLEAR REGULATORY COMMISSION '* :03 9(("H _

• BEFORE THE ATOMIC SAFETY AMD LICENSING APPBAfi BOARD-it In the Matter of )

) ,

GEORGIA POWER COMPANY, et al. ) Docket- Nos. 50-424

-- ) 50-425 (Vogtle Electric Generatinsr Plent ) (OL)

Units 1 and 2) )

, CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF BRIEF IN OPPOSITION TO INTERVENOR'S ' APPEAL, BRIEF AND PROPOSED FINDINGS CONCERNING LICENSING BOARD DECISIONS'" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this,26th day of November,1980. ,

1 P'orton B. Margulies, Esq. , Chairman

• Mr. Gustave A. Linenberger, Jr.*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety'strd Licensing Board Panel Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

' Dr. Oscar H. Paris

• James E., Joiner, Esq.

Administrative Judge Troutman, Sanders, Lockerman, Atomic Safety and Licensing Board a Ashmore /

Panel 127 Pcachtree Street, N.E.

I U.S. Nuclear Regulatory Commission Candler Building, Suite 1400 *

! Washington, DC 20555 Atlanta, GA 30043

~

Druce W. Churchill, Esq. H. Joseph Flynn, Esq.

David R. Lewis, Esq. Assistant General Counsel ,

l . Shaw, Pittman, Potts & Trowbridge Federal Emergency Management Agency i 2300 N Street, NW 500 C Street, SW Washington, DC 20037 Washington, DC 20472 9

l l .*

• l

Atomic Safety and Licensing Atomic Safety and Licensing Board Panel

• Appeal Board Panel

• U.S. Nuclear Regulatory commissicn U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Docketing and Service Section* Ruble A. Thomas Office of the Secretary Southern Company Services , Inc.

U.S. Nuclear Regulatory Com:nission P.O. Box 2625 Birmingham, AL 35202 Washington, DC 20555 William F. Lawless Carol Stanger Paine College 425 Euclid Terrace 123515th Street Atlanta, GA 30307 Augusta, GA 30910 NRC Resident Inspectors Danny Feig P.O. Box 572 1130 Alta Avenue Waynesboro, GA 30830 Atlanta, GA 30307 Bernard M. Bordenick k

Counsel for NRC Staff O

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